Fair Use Claim Filed In Dispute Over Anti-Muslim Remarks on YouTube

According to the Los Angeles Metropolitan News-Enterprise, last Friday documentary film maker Robert Greenwald's company, Brave New Films (BNF), filed a federal lawsuit against talk radio host Michael Savage and Talk Radio Network (TRN) that syndicates Savage's show. Last January, BNF uploaded to its channel on YouTube a video titled "Michael Savage Hates Muslims." The video criticized Savage, and included one minute of audio excerpts from a Savage broadcast in which Savage denigrates Muslims. TRN sent a "takedown notice" to YouTube, demanding removal of the video, claiming it infringed its copyright. This lawsuit, filed in response in the Northern District of California, seeks a declaration that the video made fair use of the copyrighted material. It also seeks damages for misrepresentations TRN made in the takedown notice. It cites as a basis for its claim an earlier fair use ruling in a lawsuit by Savage against CAIR for using audio clips from the same broadcast.

Army Base Jewish Lay Leader Criticized For Reaction To Anti-Semitic Incident

As previously reported, at Ft. Benning, Georgia, Army Private Michael Handman was subjected to anti-Semitic taunts and forced by his drill sergeants to remove his kippah (head covering). Subsequently Handman was assaulted by a fellow-soldier, though investigators concluded that this attack was not motivated by anti-Semitism. (See prior postings 1, 2.) On Monday, The Public Record reported that now some members of the Jewish community are calling for removal of retired Navy Captain Neil Block, the Jewish Lay Leader and advocate for Jewish soldiers at Fort Benning because of his remarks about the incidents. Block said of Handman: "When he told me that he was going to wear a keepah ... I said God bless you, but be prepared, there’s a consequence to it and you’re going to be challenged." Block went on:

He has a drill sergeant who has never seen a keepah in his life and treated him less than mommy and daddy would and made some derogatory comments about his faith. This whole thing is an issue of overreaction. Should his drill sergeants have known better? Yeah. But they didn’t. I was at a party where people talking about Jewing somebody down. It goes on. Does it make it right? No. But it’s basic training. You can’t control 100 or so soldiers. I mean everybody uses the “n” word now and then” to refer to African Americans....

Any young Jew who uses his minority status to play the system is villainous. There’s that element that I am being discriminated against.

Block also interviewed the drill sergeants who were reprimanded for referring to Handman as "Juden," "kike" and "fucking Jew." Block said: "these are two absolutely contrite individuals who did not understand what they were saying. One of the drill sergeants spent time in Germany. Juden is the German word for Jew. To some Jews it may have a pejorative impact. But it’s a legitimate word in German."

Indian Government Claims Ram's Bridge Not Essential To Hindu Beliefs

For some time there has been a case pending in India's Supreme Court challenging the government’s plans to dredge a shipping canal between India and Sri Lanka in order to reduce sailing time between India’s coasts by 30 hours. However, the channel goes through limestone shoals known as Adam’s Bridge or Ram's Bridge that Hindus believe were built by the God King Rama. (See prior posting.) On Monday, according to IANS, the government filed its written arguments with the court, and those arguments are controversial. The government contends that it has not been proven that the Ram Setu bridge in the Palk Strait between India and Sri Lanka is an "essential and integral part of Hindu religion." It went on to argue: "A religious belief or practice which is not an essential and integral part of the religion is not protected by Article 25 or 26 of the constitution."

Meanwhile, however, complying with an earlier suggestion by the court, the government has appointed a special committee to examine whether it would be possible to create an alternative and shorter sea route around India’s southern tip, and in that way avoid damage to the Rama Setu.

Suit Seeks To Have Ex-Gays Protected By DC Human Rights Act

The group Parents and Friends of Ex-Gays & Gays (PFOX) announced yesterday that it had filed a lawsuit in the D.C. Superior Court seeking to require the Washington D.C. Office of Human Rights to include former homosexuals as a group that is protected by the D.C. Human Rights Act. The law prohibits discrimination based on sexual orientation, sexual preference, gender identity and gender expression. PFOX claims that former homosexuals and their friends have been fired from their jobs, ridiculed, assaulted, and intimidated, and thus should be entitled to the same legal protections as gays.

Edmond Oklahoma Raises Concerns With Proposed Expenditure For Statue of Jesus

According to the AP, the Edmond Oklahoma Visual Arts Commission has approved spending $3900 in public funds to help pay for a bronze statue of Jesus to be placed downtown for Christmas. The statue, titled "Come Unto Me" (photo), will be put up in front of the Sacred Heart Catholic Gifts shop. Last year, the Arts Commission initially approved, and after public objections withdrew, a proposed expenditure of $17,500 on statue of Moses to be placed at Edmond's First Christian Church. Americans United today issued a release objecting to the proposed expenditure, and disputing the artist's argument that the sculpture "doesn't state that it is specifically Jesus. It is whatever you perceive it to be." Blog from the Capitol also covers the story.

State Senator's Suit Against God Dismissed For Lack of Service

Last year, Nebraska state senator Ernie Chambers filed a lawsuit in a Douglas County, Nebraska state court naming God as defendant and seeking an injunction against God to end His causing, death destruction and terror through various natural disasters. (See prior posting.) Chambers has variously explained the action as a protest against frivolous lawsuits or an attempt to show that everyone should have access to the courts. Yesterday, according to the Associated Press, Douglas County District Court Judge Marlon Polk dismissed the case, ruling that "there can never be service effectuated on the named defendant this action." Chambers says he disagrees with the decision. He argues: "The court itself acknowledges the existence of God. A consequence of that acknowledgment is a recognition of God's omniscience. Since God knows everything, God has notice of this lawsuit." Chambers has not decided yet whether to appeal.

Cert. Filed In Coach's Attempt to Pray With His Team

According to My Central Jersey.com, on Monday, a petition for certiorari was filed with the U.S. Supreme Court in Borden v. School District of the Township of East Brusnwick. In the case, the 3rd Circuit last April upheld a school district rule that prevented high school football coach Marcus Borden from joining with his team in its pre-meal grace and taking a knee during a prayer in the locker-room by team members. The court found that given the specific history of Borden's activities, his joining with the team could reasonably be interpreted as an endorsement of religion by him. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

UPDATE: Here is the Petition for Cert and the amicus brief in support of the petition filed by the American Football Coaches Association.

Tax Lien Sale For Synagogue's Back Taxes Will Be Tomorrow On Sukkot

In Ocean Township, New Jersey tomorrow-- which is the Jewish holiday of Sukkot-- a tax sale will be held at town hall to auction off liens on properties that are delinquent in their taxes. Included will be a tax lien on the the Synagogue of Oakhurst Community Center. APP.com reported the complicated story last week. The Orthodox synagogue owes the township over $36,000 in taxes. They were assessed because, for years, the synagogue, operating in an area not zoned for houses of worship, pretended to be a child care center. Since 2003 when the improper use was discovered by authorities, numerous zoning complaints have been issued against the synagogue. Currently the synagogue is in litigation over whether it will be granted a property tax exemption.

British Ministry Report Promotes Faith-Based Partnerships In Corrections

Today Britain's Ministry of Justice released a report titled Working With the Third Sector to Reduce Reoffending: Securing Effective Partnerships 2008-2011. Here is an excerpt:

3.3 Faith-based organisations make up a substantial part of the third sector, with a long history of working with offenders in prisons, through the gate, and in the community. This includes work that is non-faith-based; access to spiritual care and support for offenders who are of faith; and support for offenders returning to communities where faith is a strong part of the fabric of that community and where faith organisations can help build trust and acceptance and support effective reintegration.

Faith-based organisations can offer an invaluable link into communities, including to those who are not part of other networks or accessing mainstream services and support. Because religion occupies a central place in the culture and identity of many minority ethnic and refugee communities, faith-based organisations can be the principal gateway and source of support to these communities....

In response to the report, the British Humanist Association issued a statement expressing "extreme disappointment at the Government’s plans to further increase and promote 'faith' in the management of offenders, both in prisons and in the community."

Forced Conversions To Hinduism Reported In India's Orissa State

Today's New York Times carries a front-page story on the continuing religious tension and violence in the Kandhamal district of India's Orissa state. Old tribal rivalries underlie the violence. The Kandhas, who are largely Hindu, accuse the Panas, who have embraced Christianity, of cheating to obtain quotas for government jobs, while the Panas say the Kandhas are just resentful of the Panas' success at educating themselves. Violence was triggered by the August killing of charismatic Hindu preacher, Swami Laxmanananda Saraswati. The killers were probably Maoist guerrillas, but radical Hindus blame Christians. Since then, a number of Christians have been forced to embrace Hinduism, under threat of expulsion or death. Subash Chauhan, a leader of the radical Hindu group, Bajrang Dal, accused Christian missionaries of using promises of education and social services to get villagers to convert. He said it was unrealistic to expect the Kandhas to tolerate the Panas living among them as followers of Jesus. (See prior related posting.)

Suit Claims College Students Disciplined for Praying

The Pacific Justice Institute announced last week that it had filed a federal lawsuit against the College of Alameda, part of the California state system. The lawsuit claims that two students, Kandy Kyriacou and Ojoma Omaga, received disciplinary letters threatening to suspend them for "disruptive or insulting behavior, willful disobedience . . . persistent abuse of college employees." The suit claims that the disciplinary action stems from an incident last December in which Kyriacou visited an instructor in her office to give her a Christmas present, and found that the instructor was feeling ill. Kyriacou offered to pray for her. The instructor bowed her head, and the student began to pray when another faculty member, Derek Piazza, came in and told her she could not pray there. Kyriacou left and joined her friend, now co-plaintiff, Omaga, followed by Piazza who repeated his warnings to Kyriacou. The lawsuit asks that the disciplinary letters be rescinded.

Opposition To Westhampton Beach NY Eruv Continues From Community

The battle over whether the Westhampton Beach (NY) Village Board should approve a synagogue's construction of an eruv (symbolic religious enclosure) around part of the village continues. (See prior posting.) The Southampton Press reports that yesterday more than 100 people attended a meeting sponsored by a group known as Jewish People Opposed to the Eruv (JPOE). Attendees were asked to sign petitions which will be submitted along with a legal brief (full text) authored by church-state expert Marci Hamilton. Prof. Hamilton was hired by another anti-eruv group, the Alliance for the Separation of Church and State in the Greater Westhampton Area. Jack Kringstein, the vice president of JPOE said that the eruv would change the community for the worse by bringing in unwelcome people. An AP story from earlier this month on the Westhampton dispute explains opponents are concerned that "Westhampton Beach — a wealthy community but one less glitzy than its better known neighbors Southampton and East Hampton — may evolve into an Orthodox enclave."

The 18-page legal brief opposing the eruv puts forth a number of arguments as to why it would violate separation of church and state limitations, despite court cases elsewhere that have approved such arrangements. In part arguments focus on the fact that under Jewish religious law, the symbolic enclosure of space needs to be accompanied by a civil government proclamation, although that could come from the governor or state attorney general instead of the village board. The brief argues that village approval of the eruv along with a proclamation would be a government act carrying out religious law. It also contends that permitting the eruv would violate the principle of neutrality, and would be endorsement of an identified religious enclave with specific geographical boundaries. [Thanks to Steven H. Sholk for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Paul Horwitz, Religion and American Politics: Three Views of the Cathedral ,(October 2, 2008).
• George P. Smith, Biotechnology, Religion, Modern Science and Law: Shaping or Testing the New Modernity? The Curse of Itching Ears, (CUA Columbus School of Law Legal Studies Research Paper No. 2008-30 (2006).)

From SmartCILP:

• Peace With Creation: Catholic Perspectives on Environmental Law. Keynote address by Archbishop Harry J. Flynn; welcome address by Sen. Amy Klobuchar; articles by William C. French, Keith Douglass Warner, John Copeland Nagle, Lucia A. Silecchia, John Hart, Andrew P. Morriss, Gregory R. Beabout, Jamison E. Colburn and Jerome M. Organ. 5 University of St. Thomas Law Journal 1-287 (2008).

Recent Books:

• John Garrard & Carol Garrard, Russian Orthodoxy Resurgent: Faith and Power in the New Russia, (Princeton University Press, 2008).
• Macel Falwell with Melanie Hemry, Jerry Falwell : His Life and Legacy, (Howard Books, 2008).

Texas Coroner Wants Exemption From State Religious Freedom Restoration Act

Yesterday's Houston Chronicle reported that the Harris County, Texas Medical Examiner's Office is considering asking the state legislature to enact legislation to exempt the coroner's office from Texas Religious Freedom Restoration Act. Last year, a Texas court invoked the law to bar an autopsy of an Orthodox Jewish man who committed suicide after battling depression. The medical examiner's office however, says that a judge or member of the clergy should not be able to overrule a coroner's decision that an autopsy is needed. State law calls for an autopsy in cases of murder, suicide and or where the cause of death is not known. In cases of Jewish or Muslim families, the coroner's office preserves all body parts and fluids for burial, and expedites autopsies so burial can take place quickly as required by religious law. [Thanks to Steven H. Sholk for the lead.]

Virginia School District Moves To Less Controversial Bible Curriculum

According to yesterday's Roanoke Times, the Craig County, Virginia, School Board last week voted 5-0 to drop a course called "The Bible in History and Literature" that uses the controversial curriculum developed by the National Council on Bible Curriculum in Public Schools. That curriculum has been criticized as promoting particular religious beliefs. The course will be replaced by one using a curriculum titled "The Bible and Its Influence," created by the Bible Literacy Project and which has been endorsed by experts in literature, religion and church-state law. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Court Rejects Use Permit For Hindu Temple Because of Deed Restrictions

Yesterday's Arizona Republic reports that a recent Maricopa County Superior Court decision invalidated a use permit that the Chandler City (AZ) Planning and Zoning Commission, as well as City Council, had approved for construction of a Hindu Temple. Neighbors challenging the proposed construction relied on "residential only" deed restrictions on the land owned by the non-profit Hindu group that wished to build a brightly colored worship center.

Minnesota Supreme Court Challenger Focuses On Religion As Basis of Government

The Minnesota Independent last week reported on the campaign of Tim Tingelstad for a seat on the Minnesota Supreme Court. Challenging incumbent Justice Paul Anderson, Tingelstad's website is filled with appeals to restore religion as the foundation of government. For example, the section of his website captioned Church & State says in part: "Through misinterpretation, the Constitution has been used as an instrument to remove God and his Word from our public lives.... Today's concept of 'separation of church and state' does not come from the Constitution, nor does it come from a historically accurate review of American history." [Thanks to Scott Mange for the lead.]

Christians In Iraq Flee Violence In Mosul

CNN reported yesterday that in the Iraqi city of Mosul, 900 Christian families have fled after a series of threats and 13 killings by Muslim extremists who have warned Christians to convert to Islam or face possible death. The violence follows demonstrations two weeks ago by Christians seeking greater representation on provincial councils in elections scheduled for January. In response to the violence, the Iraqi defense minister visited Mosul, police have set up security checkpoints, more troops have been deployed to the city and security patrols have been increased.

Recent Prisoner Free Exercise Cases

In Mells v. Civigenics, Inc., (5th Cir., Oct. 3, 2008), the U.S. 5th Circuit Court of Appeals dismissed as frivolous an inmate's free exercise claim, agreeing with the district court that plaintiff had failed to exhaust his administrative remedies.

In Mitchell v. Department of Corrections, 2008 U.S. Dist. LEXIS 77624 (ED WA, Oct. 3, 2008), a Washington federal district court rejected claims by plaintiff, a Nation of Islam member, that his free exercise, RLUIPA, Establishment Clause and equal protection rights were violated by prison policies. His challenges related to the unavailability of specific NOI religious services and instruction, the ban on his wearing a colored kufi, a limitation on prayer oils, and rules relating to attendance at cultural events.

In Sullivan v. Ozmint, 2008 U.S. Dist. LEXIS 77587 (D SC, Oct. 2, 2008), a South Carolina federal district court, adopting a magistrate's recommendations, rejected complaints that Muslim inmates were allowed to pray only in common areas, and not in closed areas of the prison such as the barber shop.

In Shaw v. Norman, 2008 U.S. Dist. LEXIS 77696 (ED TX, Oct. 1, 2008), a Texas federal magistrate judge rejected dismissal of an inmate's 1st Amendment and RLUIPA claims, growing out of confiscation of his Koran, prayer rug and beads. Defendants claimed plaintiff did not have property papers for the prayer rug, the Koran had been altered with tape, and that plaintiff was improperly using the beads by wearing them around his neck.

In Johnson v. Ohio Department of Rehabilitation & Corrections, 2008 U.S. Dist. LEXIS 79483 (SD OH, Oct. 9, 2008), an Ohio federal district court permitted a Rastafarian prisoner to move ahead with his claim that subjecting him to prison grooming policies violated his 1st Amendment rights. However the court refused plaintiff's request for a temporary restraining order. (See prior related posting.)

In Muhammad v. Brumfield, 2008 U.S. Dist. LEXIS 79559 (ED CA, Oct. 6, 2008), a California federal magistrate judge ordered dismissal of a suit brought by an inmate who wished to participate in services with the Lost Found Nation of Islam. The court said plaintiff had not demonstrated any substantial burden on his religious practice.

In Wakefield v. Tilton, 2008 U.S. Dist. LEXIS 78881 (ED CA, Oct. 2, 2008), a California federal magistrate judge recommended that an inmate be permitted to proceed against one defendant with his claim that denial of a daily shower infringed his free exercise rights. The magistrate judge recommended dismissal of various other claims.

In Palermo v. White, 2008 U.S. Dist. LEXIS 80047 (D NH, Sept. 5, 2008), a New Hampshire federal magistrate judge allowed plaintiff a Wiccan, to proceed with his free exercise, RLUIPA and equal protection claims. Plaintiff alleged that as a pre-trial detainee he was denied a vegetarian diet, religious texts and religious items.

Appeal Filed In School Graduation Speech Case

An appeal to the 10th Circuit Court of Appeals has been filed in Corder v. Lewis Palmer School District No. 38. Yesterday's Colorado Springs (CO) Gazette reports on the filing in the case in which a high school valedictorian was required to apologize for including unauthorized religious material in her 30-second portion of a joint graduation speech. In July, a Colorado federal district court upheld officials' actions, finding that schools can reasonably regulate the content of school-sponsored speech. (See prior posting.) A release by Liberty Counsel, which is representing former student Erica Corder in the appeal, says that the school had no authority over Corder once she was no longer a student.