Religion Clause

Tuesday, November 25, 2008

6th Circuit Allows Some Sex-Abuse Claims Against Vatican To Proceed Under FSIA

In O'Bryan v. Holy See, (6th Cir., Nov. 24, 2008), the U.S. 6th Circuit Court of Appeals affirmed a district court decision dismissing certain claims against the Vatican in a clergy sex-abuse case, but permitting other claims to proceed under the Foreign Sovereign Immunities Act (FSIA). At the heart of the claims against the Vatican were allegations that, through a 1962 directive, it implemented a policy to keep allegations of childhood sexual abuse by priests secret. Finding that the Holy See is a foreign state under FSIA, the court held that plaintiffs had waived any Establishment Clause challenge to applying FSIA to the Vatican. Under FSIA, federal courts have jurisdiction only if one of the statute's exceptions to sovereign immunity apply. The court rejected arguments that the commercial activity exception or the tortious act exception subjected the Holy See to suit in U.S. courts. However the court went on to hold that the tortious act exception did allow claims against the Holy See arising out of conduct of Holy See employees in the United States engaged in the supervision of allegedly abusive priests, including clergy failure to warn parents or report perpetrators. AP reported on the decision yesterday.

UPDATE: Also reporting on the decision, yesterday's Wall Street Journal says that attorneys for the Vatican are not "presently inclined" to seek Supreme Court review. The Wall Street Journal has also posted the full text of the once-confidential 1962 directive on how Diocesan officials should proceed "in cases of solicitation".

Vietnam Ends Attempt To Control Catholics; Recognizes Mennonites

The press this week reported on two significant developments out of Vietnam. According to Asia News , the government's attempt to follow China's lead and create create a Catholic Church controlled by the Communist Party instead of the Pope has failed. Meanwhile Ekklesia reports that the Vietnam National Religious Affairs Committee has given full legal recognition to the Vietnam Mennonite Church which held its first official General Assembly on Nov. 15-17.

Holy Land Foundation Leaders Convicted In Their Retrial

Yesterday, according to the New York Times, federal prosecutors in Dallas, Texas obtained convictions against five leaders of a Muslim charity for funneling donations to the terrorist group Hamas. Last October, a mistrial on most charges occurred in the trial of leaders of the Holy Land Foundation for Relief and Development. (See prior posting.) But on this retrial, the jury found the defendants guilty on 108 counts of supporting terrorism, money laundering and tax fraud. Defendants plan an appeal. Before the U.S. closed it down in 2001, the Holy Land Foundation was the largest Islamic charity in the United States.

UPDATE: A Nov. 25 New York Times article reports on the reaction of the American Muslim community to the convictions-- the community is divided over the case.

U.N.'s 3rd Committee Approves Resolution on Combatting Defamation of Religions

Yesterday the United Nations General Assembly's Third Committee (which focuses on social humanitarian and cultural issues) adopted a controversial resolution urging countries to combat the defamation of religion. Canwest News Service reports that the resolution passed 85-50, with 42 abstentions. The 6-page Resolution (full text in Word doc.) includes a call for "all States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general...." Similar resolutions have been put forward in other U.N. venues as part of a campaign by the Organization of the Islamic Conference. (See prior posting.) Canwest says that "While this year's draft is less Islam-centric that resolutions of earlier years, analysts note it is more emphatic in linking religion defamation and incitement to violence."

The American Jewish Committee, in a release yesterday, said that the resolution, sponsored by Belarus, Uganda, and Venezuela, "stifles valid scrutiny of radical Islam and condones intimidation as a response to insensitive speech." Scoop News says that this year's vote in favor of the resolution reflected a decline in support, stemming from efforts by groups such as the Becket Fund for Religious Liberty and UN Watch to muster opposition the measure.

Monday, November 24, 2008

Spanish Court Says Schools Must Remove Crucifixes

For the first time, a judge in Spain has ordered a public school to remove crucifixes from the walls of its classrooms and public spaces. Today's Edmonton (Vancouver) Journal reports that the ruling came in the city of Valladolid in a case in which a parent and a secular organization claimed that schools were violating the constitutional guarantee of church-state separation. Art. 16 of Spain's Constitution provides: "No religion shall have a state character. The public powers shall take into account the religious beliefs of Spanish society and maintain the appropriate relations of cooperation, with the Catholic Church and other denominations." The court held that "The presence of these symbols in areas ... where minors are being educated can promote the idea that the state is closer" to Roman Catholicism than other religions.

British Airways Employee Loses Appeal In Religious Jewelry Case

In Eweida v. British Airways PLC [Word doc.], (Empl. App. Trib., Nov. 20, 2008), Britain's Employment Appeal Tribunal held that British Airways had not engaged in "indirect discrimination" in insisting that a cross worn on a necklace by check-in clerk Nadia Eweida be concealed by her uniform. Only the holding below relating to indirect discrimination was appealed. BA's policy, which applied to all jewelry including religious items, had an exception if wearing the item was a "mandatory" scriptural requirement and it could not be concealed under the uniform. Ultimately Eweida returned to work after BA amended its policy.

Wearing the cross was not a tenet of Eweida's Christian faith, but instead was a personal expression of belief. The Tribunal found that there was not evidence that BA's policy had a disparate impact on Christians, or a group of Christians, "because there was no evidence that a sufficient number of persons other than the claimant shared her strong religious view that she should be allowed visibly to wear the cross." Personnel Today reports on the decision. (See prior related posting).

Wisconsin Town Repeals Ordinance Out of Concern For Amish Buggies

Loyal, Wisconsin City Council last week repealed an ordinance that it had passed just a month earlier, out of concern that the law would discourage local Amish residents from visiting the city in their horse-drawn buggies. The ordinance would have required horses within city limits to wear manure-catching devices. According to last Friday's Salt Lake Tribune, Amish were afraid that the required bags would make their hoses skittish. After enacting the repeal by a vote of 7-1, City Council went on by a vote of 5-3 to require that horse-drawn vehicles use only a prescribed route through town.

Muslim Prisoners In British Facility Force Conversion on Fellow Inmates

London's Sunday Express reported yesterday that in Cambridgeshire's top security Whitemoor prison, Muslim inmates have launched a "reign of terror", forcing other prisoners to convert to Islam or face beatings or worse. The Prison Officers' Association has been calling for dispersal of the 100 Muslim prisoners in Whitemoor elsewhere in order to break up the gang violence.

UPDATE: The Nov. 28 Muslim News reports that an inspection of Whitemoor prison last month by the Chief Inspector of Prisons found that "the Prison Service as a whole needs to equip staff better to deal with the growing number of Muslim prisoners." However the report gave high marks to Whitemoor's religious program for its Muslim inmates.

Parents Must Move From Alamo Church Compound To Regain Custody of Girls

As previously reported, in September after federal authorities raided the compound of Tony Alamo Ministries, Arkansas officials took six minor girls into temporary custody. According to yesterday's Arkansas Democrat Gazette, a hearing was held last Friday on the status of two of those girls. Miller County Circuit Judge Jim Hudson, following recommendations of the state Department of Human Services, ruled that the girls can be returned to their parents only if the parents move off property controlled by Tony Alamo Christian Ministries. The family must also establish financial independence from the church. However, the parents can continue to attend church services. On Saturday, the judge said he would be willing to consider other plans proposed by the parents to protect the girls without moving. State authorities objected to the girls living in the same house with Alamo and several of his wives. Also the girls had not received childhood vaccinations, and were not being educated by state-certified teachers or in a registered home-school program.

Meanwhile, hearings are scheduled today in Miller County, Arkansas Circuit Court for 20 additional children who were removed last week from parents who attend the Tony Alamo Christian Ministries. (Arkansas Online.)

Sunday, November 23, 2008

African-American Muslims In U.S. Reject al Qaeda Statement

On Friday, according to CNN, leaders of New York's African-American Muslim community issued a statement denouncing recorded comments from al Qaeda's second-in-command Ayman al-Zawahiri. The Zawahiri video tape, released on the Internet last Wednesday (Washington Post), denounced President-elect Barack Obama. It said that Obama represents the "direct opposite of honorable black Americans" like Malcolm X. In a statement read during a news conference at the Malcolm X and Dr. Betty Shabazz Memorial, Educational and Cultural Center, the African-American Muslim leaders said: "We find it insulting when anyone speaks for our community instead of giving us the dignity and the honor of speaking for ourselves." The Council on American-Islamic Relations also condemned Zawahiri's statements.

Recent Prisoner Free Exercise Cases

In Tapp v. Stanley, 2008 U.S. Dist. LEXIS 93122 (WD NY, Nov. 17, 2008), a New York federal district court rejected an inmate's free exercise and RLUIPA claims arising out of a nearly 4-month delay in furnishing him kosher food while his request for it, and his religious designation form, were being processed. A separate claim regarding inability of non-Christians to participate in the Angel Tree program was dismissed for failure to exhaust administrative remedies.

In Foster v. Ouachita Correctional Center, 2008 U.S. Dist. LEXIS 92914 (WD LA, Nov. 14, 2008), a Louisiana federal district court allowed an inmate to proceed with his claim that authorities violated his rights under the 1st Amendment and RLUIPA by not allowing him to participate in weekly worship services, not permitting him to fast during Ramadan, and not furnishing him a pork-free diet. Two other claims were dismissed as frivolous.

In Furnace v. Sullivan, 2008 U.S. Dist. LEXIS 93464 (ND CA, Nov. 10, 2008), a California federal district court rejected a claim by an inmate (a practitioner of the African religion of "Shetaut Neter") that his rights under the 1st Amendment and RLUIPA were violated when on one morning he was refused his vegetarian food tray in an incident that led to his being assaulted with pepper spray. However plaintiff was permitted to proceed with claims alleging excessive force and equal protection violations, and allowed him to amend his complaint to allege that he has exhausted administrative remedies as to his state law claims involving free exercise and equal protection violations.

In Richard v. Border, 2008 U.S. Dist. LEXIS 93519 (D OR, Nov. 17, 2008), an Oregon federal district court rejected plaintiff's claim that his 1st Amendment rights were violated by requiring him to live at the Eugene Mission, which requires attendance at a church service, as a condition of his post-prison supervision. The court found that plaintiff had requested to live at Eugene Mission and never proposed an alternative living arrangement after his objections arose.

In Boretsky v. Corzine, 2008 U.S. Dist. LEXIS 94583 (D NJ, Nov. 20, 2008), a New Jersey federal district court permitted an inmate to move ahead with his claims that his free exercise and due process rights, and his rights under RLUIPA, were violated when his placement in isolation deprived him of his ability to participate in religious activities.

City Asks For Removal of Billboard With Anti-Religion Message

The San Francisco Chronicle reported Friday that the city of Rancho Cucamonga, CA, after receiving numerous complaints, asked the General Outdoor advertising company to take down a billboard carrying a message from the Freedom from Religion Foundation. The sign company complied, removing the "Imagine No Religion" billboard. FFRF says the city should not be censoring speech. This is not the first time the city has requested removal of a billboard seen as offensive to some. In September, it asked another company to take down a billboard advertising vagina rejuvenation. [Thanks to Scott Mange for the lead.]

ADL Covers A Range of Issues at Meeting Marking 95th Year

In a release issued Friday, the Anti-Defamation League summarized the proceedings of its annual meeting held earlier this month in Los Angeles. The ADL marks its 95th birthday this year. In the keynote address, ADL director Abraham Foxman reported that in the wake of the country's financial crisis, anti-Semitic conspiracy theories are spreading on the Internet. Separately, the ADL released a new poll showing that a majority of Americans believe that religious values are under attack in the U.S., but there has been a decline in concern about racial tensions. Finally the ADL adopted a resolution on religious accommodation in the workplace, favoring it if it does not infringe others' rights or create undue employer burdens. The resolution opposed "policies or laws that permit a pharmacist to interfere with the physician-patient relationship by refusing to fill prescriptions without simultaneously offering a referral source to the patient so that his or her medication can be promptly and timely obtained..." Also it opposed excusing government officials, in states where same-sex marriage is legal, from issuing licenses or performing civil ceremonies unless there is immediate access to another employee who will do so.

Conviction For Interfering With Business Does Not Violate Free Exercise Rights

In Sherman v. Yolo County, 2008 U.S. Dist. LEXIS 92800 (ED CA, Nov. 6, 2008), a California federal district court rejected a habeas challenge by a defendant, now in prison, who was convicted of intentionally interfering with a lawful business by obstructing customers (CA Penal Code 602.1). Joseph Sherman was aggressively preaching and handing out Bible materials to people entering and leaving Longs Drugs in Davis (CA). He became hostile when asked to leave. The court rejected Sherman's claim that his 1st Amendment speech and free exercise rights were violated. It found that the state statute under which Sherman was convicted is a rationally-based neutral law of general applicability.

In Malaysia, Parties Seeking Federal Court Ruling In Catholic Paper Case

As previously reported, in Malaysia the Catholic newspaper The Herald has filed suit in the High Court in Kuala Lumpur to challenge the Home Ministry's decision banning the paper from using the term "Allah" as a synonym for God in its Malay-language reporting. Now, according to yesterday's New Straits Times, several state religious councils have obtained a stay a stay of proceedings until Feb. 27 from the court so the parties can ask the Federal Court for a ruling on the constitutionality of various laws involved in the case. Meanwhile, the Malaysian Gurdwaras Council will ask the Attorney-General to avoid a confrontation in the case.

Saturday, November 22, 2008

In Nigeria, Children Accused by Churches of Being Witches Are Tortured By Their Families

Saturday's Lagos Guardian reports that in parts of the Nigerian states of Akwa Ibom and Cross River, there has been an alarming increase in the number of children who are suspected by their parents of being "witches" or "wizards." Many of them are abandoned, tortured or killed by their families after prophets from Pentecostal sects declare the children to possess strange powers. The craze seems to have been started in the late 1990's by Prophetess Helen Ukpabio, founder of the Liberty Gospel Church. Her home movies portrayed some children as possessing supernatural powers that they can use to bring misfortune to their families. The Child's Right Rehabilitation Network (CRARN) is providing shelter for over 150 of these abused children at its Children's Centre, and is working to get the parents who tortured or murdered children prosecuted.

A Review of Same-Sex Marriage Developments In Connecticut

In the widespread coverage of the battle over gay marriage in California, less attention has been given to a decision by the Connecticut Supreme Court last month holding that limiting same-sex couples to civil unions, instead of marriage, violates the equal protection guarantees of the Connecticut state Constitution. An article in this week’s Yale Herald titled Gay Couples Marry as Campus Christians Sit Silent is occasion to look more closely at developments in Connecticut.

In Kerrigan v. Commissioner of Public Health, (CT Sup Ct, Oct. 10, 2008) (majority, dissents 1, 2, 3), the court, in a 4-3 decision, applied intermediate scrutiny to strike down Connecticut's statutory scheme barring same-sex marriage. Opponents then supported a proposal that is automatically on the November ballot every 20 years to call a state constitutional convention. [corrected]. The convention could have potentially proposed a constitutional amendment to overturn the court's decision. However, that proposal was overwhelmingly defeated at the polls earlier this month.

Of particular interest is the analysis by the majority in the Kerrigan case concluding that sexual orientation is a quasi-suspect classification that triggers heightened scrutiny. One part of the test for a quasi-suspect class is its "political powerlessness." As the court explained:

a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.

Interestingly, the court then went on to, in part, rely on the strong religious opposition to homosexual activity as evidence of the political powerlessness of gays and lesbians. The court said:

Feelings and beliefs predicated on such profound religious and moral principles are likely to be enduring, and persons and groups adhering to those views undoubtedly will continue to exert influence over public policy makers.

The court then added in a footnote (fn. 37):

Of course we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable.

Britain's New Pension Authority Will Offer Sharia-Compliant Option

In 2006, Britain enacted legislation to reform its pension system. Among other things, the Pensions Act 2007 created the Personal Accounts Delivery Authority which will create new low cost pension savings vehicles for individuals. (Background.) The London Telegraph reported yesterday that the Authority will offer a Sharia-compliant pension fund as one of the options in order to encourage Muslim participation. Many Muslims who have low-paying jobs or who have recently moved to Britain are thought to have little saved for retirement so far. The Sharia-compliant fund would not invest in financial service firms, or in companies involved in gambling, liquor or pornography industries. Britain's Child Trust Fund already offers Sharia-compliant baby bonds.

Germany Will Not Attempt To Ban Scientology Now

The AP reports that Germany’s Interior Minister Wolfgang Schaeuble, as well as domestic intelligence authorities from Germany's 16 states, agreed Friday that they had insufficient evidence to open formal proceedings to ban the Church of Scientology. To open proceedings, authorities need evidence of unconstitutional activities. They had been monitoring Scientology-- which they consider a business that takes advantage of vulnerable individuals.-- to determine if it seeks to limit basic human rights such as equality and the right to develop one’s personality. Even though they are not proceeding with charges now, authorities will continue to monitor Scientology’s activities in Germany. (See prior related posting.)