Infringing Confession's Confidentiality OK Under Australia's Free Exercise Clause

In SDW v Church of Jesus Christ of Latter-Day Saints, (NSW Sup. Ct., Nov. 27, 2008),the Supreme Court of the Australian state of New South Wales held that the statute of limitations had run on a claim by a woman who contended that the Mormon Church breached a duty of care it owed to her. The woman had, as a teenager, been sexually molested by her stepfather, who was excommunicated from the Church as a result. Plaintiff now claims that the Church had a duty to protect her against further molestation by, among other things, reporting her step-father to child protection or police authorities. In the course of its decision, the Court held that a law overriding the confidentiality of a religious confession is not an unconstitutional infringement of the free exercise of religion that is protected by Australia's Constitution, Sec. 116. The court found that this free exercise argument was so unmeritorious that it refused to include costs associated with presenting the argument in those costs assessed against plaintiff. Australia's Herald Sun reported on the decision last week.

Assault Charge To Be Retried Under Parent Discipline Defense

In State of Washington v. McHenry, (WA Ct, App., Nov. 25, 2008), a Washington state appellate court reversed and remanded for retrial a defendant's conviction for assaulting his daughter with a knife. The court upheld his conviction on other counts of assault against the daughter. On the one count, defendant claimed that his religion allowed him, as a father, to cut his daughter's hair if he believed she was using her beauty to be promiscuous. The court held that failure of defendant's counsel to request a jury instruction under RCW 9A.16.100 (which allows a parent to impose reasonable and moderate physical discipline on a child) amounted to ineffective assistance of counsel on that count.

Recently Available Prisoner Free Exercise Cases

In Holloway v. Bizzaro, 2008 U.S. Dist. LEXIS 94861 (SD FL, June 27, 2008), a Florida federal magistrate judge recommended dismissal of an inmate's damage claim. Plaintiff claimed that denial of pork-free meals violated of his religious rights. Under the Prison Litigation Reform Act, however, plaintiff can recover compensatory damages only if he suffered a physical injury.

In Abobkr v. Mills, 2008 U.S. Dist. LEXIS 95973 (D MS, Nov. 17, 2008), a Mississippi federal magistrate judge recommended dismissal of claims by a Muslim inmate that he was not allowed to lead Muslim prayer services and was forced to pray behind another less knowledgeable prisoner, and that on two occasions he was prevented from praying in the law library.

In two opinions in Foster v. Ouachita Correctional Center, 2008 U.S. Dist. LEXIS 96513 (WD LA, Sept. 22, 2008) and 2008 U.S. Dist. LEXIS 96523 (WD LA, Oct. 30, 2008), a Louisiana federal magistrate judge recommended dismissing complaints by a Muslim prisoner that prison officials refused to "provide assistance" to Muslim inmates in their obligation to fast and read scripture during Ramadan; refused to set up a worship program for Muslims; and refused to furnish Muslims a non-pork diet. He also alleged that during Ramadan Muslims were required to attend Christian programs.

Indian Authorities Waive Autopsies On Chabad House Victims

India Express reports today on efforts to have the bodies of those brutally killed in the Chabad center in Mumbai returned to Israel for burial without autopsies being performed. Jewish law generally prohibits autopsies. The Israeli Consulate sent a request to Mumbai's Police Commissioner and to the Home Minister to hand over the bodies without autopsy so they can be buried according to Jewish law. DNA India reports that a letter from the Indian Ministry of External Affairs approving these arrangements arrived Saturday night.

Muslim-Christian Clashes In Nigerian City Following State Elections

BBC News today reports that in the Nigerian city of Jos, hundreds of people have been killed in clashes between Muslims and Christians. Jos is the capital of the state of Plateau. The violence followed state elections in which the Christian-backed People's Democratic Party won over the Muslim-backed All Nigeria People's Party. The results are being contested amid reports of election irregularities. Violence, including burning of homes, churches and mosques, began Thursday night. Plateau has a history of religious clashes between indigenous Christians and more recently arrived Hausa-speaking Muslims.

Nativity Scene To Go Up Without Opposition In Illinois Capitol Building

A press release issued yesterday by the Springfield Nativity Scene Committee (SNSC) reports that a privately funded Nativity Scene will be displayed starting next week until after Christmas in the East Hall of the Illinois state Capitol Building. The unveiling ceremony will include a prayer and Christmas carols. Choirs will perform near the display throughout the Christmas season. The Secretary of State's office approved the display, apparently on the theory that this area of the Capitol is a designated public forum open to all. Dan Zanoza, Chairman of the SNSC, said: "The Nativity Scene is primarily meant to honor the birth of Jesus Christ. We are also hoping to demonstrate that such expressions of religious faith in the public square are legal under both the U.S. and Illinois State Constitutions." In support of that position, he cited a 1989 federal district court decision that upheld a creche on Daley Plaza. (Grutzmacher v. Public Bldg. Com., 700 F. Supp. 1497 [LEXIS link]). The ACLU is not opposing the Capitol display, saying: "anybody can express their message there and frankly there is room in that space for lots of different messages." (Suburban Chicago Daily Herald, 11/18).

Louisiana Parish Repeals Fortune Telling Ban After Court Holds It Invalid

Last month in Gryphon's Nest Gifts, Inc. v. Parish of Livingston, (MD LA, Oct. 7, 2008), a Louisiana federal district court held unconstitutional an ordinance enacted by the Parish of Livingston that bans soothsaying, fortune telling, palm reading, clairvoyance, crystal ball gazing, mind reading, card reading "and the like" for a fee. The ordinance was challenged by a business that caters to the spiritual and educational needs of Wiccans and other pagans. After Hurricane Katrina it wished to move to Livingston Parish. The court held that the ordinance was an unconstitutional content-based prohibition of speech. It also found that the law was unconstitutionally vague. Now, according to a report in The Advocate earlier this week, on Monday, the Parish Council by a 7-1 vote, on advice of its attorney, decided to repeal the ordinance instead of appealing the case. (See prior related posting.) [Thanks to About.com's Paganism/Wicca blog for the lead.]

Court In Kashmir Says Hajj Travel Is Protected Fundamental Right

In Indian Kashmir, a High Court judge has ruled that the State Hajj Committee wrongly denied travel documents to ten individuals attempting to make the Hajj pilgrimage to Saudi Arabia this year. According to a report published yesterday by Greater Kashmir, a pilgrim pass was denied to 40 individuals, but only ten sued. The denials were based on reports of past arrests or of anti-national activities. The court said, however: "Haj for Muslim is an essential and integral part of the religion forming one of the five pillars of Islam. It can safely be concluded that withholding of the pilgrim pass ... amounts to infringement of fundamental right guaranteed under the Constitution of India...." Art. 25 of India's Constitution guarantees the right to freely practice one's religion. Even though the last flight to Jeddah left two days before the court's decision, the court ordered the government to arrange for plaintiffs' travel.

Tribal Lawsuit Raises Unusual Religious Liberty Question

In Havasupai Tribe v. Arizona Board of Regents, (AZ Ct. App., Nov. 28, 2008), an Arizona state appellate court decided a procedural issue in a case that raises a fascinating religious liberty question. The procedural issue was whether plaintiffs adequately complied with the notice of claims requirement in Arizona law that applies to suits filed against public entities or public employees. Focusing on that issue, in a 2-1 decision the court reversed the trial court's grant of summary judgment in favor of defendants.

Underlying the procedural wrangling is a claim by the Havasupai Indians and tribal members that blood samples given to Arizona State University researchers were used for purposes beyond those consented to. Researchers were to study whether genetics accounted for the large increase in diabetes among tribe members. However when that study was completed, the blood samples were also used to study the evolutionary genetics of the Havaupai, including theories regarding the ancient migration of populations across the Bering Strait from Asia to North America. That notion contradicts the Havasupai belief that, as a people, they originated in the Grand Canyon. Reporting on the case, yesterday's East Valley Tribune quotes plaintiff's attorney:

It's a life-altering event for each and every one of those tribal members that academic institutions and science is now telling these folks that their religion and their cultural beliefs are wrong.... They would have never opened themselves up to this type of scrutiny or challenge to their belief systems, not in a million years would they have done that, had they known that this was the true intent of Arizona State University and others.

The AP also reported on the decision yesterday.

Former Maldives President Suing For Defamation Over Comments On His Religious Beliefs

Miadhu News today reports from the Maldives on the ongoing civil defamation lawsuit brought by former Maldives President Maumoon Abdul Gayoom against Adhaalath Party. Gayoom says that Sheikh Husain Rasheed has publicly defamed him on several occasions by saying that he was a not a Muslim. (See prior posting.) The first hearing in the lawsuit was held yesterday at which Gayoom's attorneys presented his case.

UDATE: Minivan News reported on Jan. 8, 2009 that Gayoom's defamation suit has been withdrawn, with Gayoom saying it would be futile to pursue it once the election is over.

Kentucky's Homeland Security Law Requires Acknowledgement of God

Today's Lexington Herald-Leader reports on a little-noticed provision in Kentucky's law enacted in 2006 to create the state Office of Homeland Security. KY Code 39G.010 requires that the agency's executive director is to "publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including [specified findings] ... in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanent plaque at the entrance to the state's Emergency Operations Center" with the same inscription on it. The required language is in KY Code 39A.285(3) :

The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln's historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy's November 22, 1963, national security speech which concluded: "For as was written long ago: 'Except the Lord keep the city, the watchman waketh but in vain.' "

Current Kentucky Governor Steve Beshear's office was not aware of the provision until reporters asked about it. The required plaque is still up, but the statutory language is not in the Homeland Security office's current mission statement, nor is it on its website.

UPDATE: Bluegrass Politics reported on Monday that American Atheists and ten Kentuckians will file a federal court lawsuit on Tuesday seeking to eliminate references to God in the Homeland Security statute. The suit will also seek an award of damages.

Canadian Marriage Commissioner Sues Province Over Same-Sex Marriage Mandate

In Canada last May, the Saskatchewan Human Rights Tribunal held that government marriage commissioner Orville Nichols may not discriminate against same-sex couples in performing civil marriages. (See prior posting.) Not only is Nichols appealing the Tribunal's adverse decision but, according to the Regina Leader-Post, he also filed a separate suit last Monday against the government seeking to force a change in the rules that he says infringe his free exercise of religion. Saskatchewan Party Justice Minister Don Morgan said he would have preferred to grandfather in existing commissioners who had religious objections to performing same-sex marriages, but now that the Human Rights Tribunal has spoken the government must support its ruling. Morgan, however, has written all commissioners to tell them that they do have the option to surrender their civil marriage certificate and obtain only a certificate allowing them to perform religious marriages.

Kazakhstan's Parliament Passes Controversial Amendment To Religion Law

Kazakhstan's Parliament on Wednesday gave final approval to restrictive amendments to the country's Religion Law. The bill would also amend the Code of Administrative Offenses and certain other laws. The controversial bill now goes to President Nursultan Nazarbaev who must decide whether or not to sign it into law. A report by Forum 18 published on Wednesday describes the effect of the amendments:

[T]he Law would for the first time explicitly ban unregistered religious activity. It would also ban anyone from sharing their beliefs without both the written backing of a registered religious association and also personal state registration as a missionary. It would require permission from both parents for children to attend any religious event.

Small "religious groups" – the lowest level of registered community - would only be authorised to carry out religious activity with existing members and would not be allowed to maintain places of worship "open to a wide access". Nor would they be allowed to conduct missionary activity. Apart from a few personal items, all religious literature imported into the country would require approval through a "religious expert assessment".

Penalties for holding religious services, conducting charitable work, importing, publishing or distributing religious literature or building or opening places of worship in violation of "demands established in law" would be increased. Repeat "offences" – if the current draft is adopted – would lead to a religious community being banned.

Radio Free Europe points out that the passage of the bill by the Majilis-- the lower house of the country's legislature-- came only hours after government officials met with experts from the Organization for Security and Cooperation in Europe and agreed to allow OSCE to review the latest draft of the proposed law.

Netherlands Will Extend Proposed Burka Ban To Higher Education

In the Netherlands, Education Minister Ronald Plasterk has told Parliament that a planned law to ban wearing of the burka and niqab in elementary and secondary schools (see prior posting) will be extended to institutions of higher education as well. These are garments that cover the body and the face which are worn by Muslim women. According to a report from AFP on Wednesday, the step was taken because of pressure from a majority in Parliament even though the original justification for the ban was that children needed to be able to see the other person's face in order to learn proper communication. The ban would apply to students, faculty, parents and custodial workers. An Education Ministry spokesman said the law would affect only a handful of people in higher education in the country, and that since it was not the ministry's idea, it could not explain the reasoning behind the extension of the ban.

Brooklyn Chabad Rabbi and Wife Among Hostages Held In Mumbai; Update-- Reported Killed

One of the ten sites attacked by terrorists in Mumbai (India) yesterday and today is Nariman House which houses Mumbai's Chabad Lubavitch headquarters. (Scotsman). BBC News reports that Chabad's main emissary in the city, Rabbi Gavriel Noach Holtzberg, is being held hostage in the building which is now surrounded by police. NY1 News says Holtzberg is from Brooklyn, NY. WLS-TV Chicago says that Rabbi Holtzberg is a U.S. citizen and his wife Rivka is an Israeli. (Photo of rabbi and his wife.) The New York Times on Thursday posted an article describing the Chabad House operated by the Holtzbergs as a magnet for Jewish tourists and business men visiting Mumbai, as well as for Iraqi and Indian Jews living there. The article goes on to describe the reaction to Mumbai events in Crown Heights, Brooklyn where Chabad is headquartered and where Rabbi Holtzberg grew up. The Wall Street Journal, however, says that the Chabad center in Mumbai was not widely known, so the terrorists who seized it must have been familiar with the area.

Arutz Sheva reports that Rabbi Holtzberg and his wife are unconscious in Nariman House, as are several other Israelis held in the building. The Guardian reports that Holtzberg's 2-year old son was gotten out of the building by a woman who works as a cook at the Chabad center. The Jerusalem Post reports that 8 people were freed from Chabad House on Thursday evening (Indian time) in a commando operation. The identity of those freed is unclear.

Despite reports in the U.S. and British media that the terrorists were looking primarily for those with U.S. and British passports, Haaretz reports 20 to 30 Israelis are among the dozens of hostages held at the Trident-Oberoi hotel. IANS reported Thursday afternoon (U.S. time) that Israel is preparing to send paramedic and rescue personnel to Mumbai to help in the release of Rabbi Holtzberg and seven others being held at the Nariman House Chabad headquarters. On Thursday night (US time), BBC News reported that Indian security forces had begun an attack on Nariman House to capture or kill the gunmen inside and free the hostages.

On Friday morning (US time), Haaretz was reporting that the bodies of 5 hostages were found inside Nariman House and that the two terrorists there were also killed. The identity of the deceased hostages is not yet clear. Arutz Sheva reports that the dead-- murdered by their captors-- include Rabbi Holtzberg, his wife Rivka, and two women who had been trapped with them. London's Evening Standard confirms this and says that there is uncertainty about the fate of 4 other that were being held there. [Ths posting is being updated on a rolling basis. Last updated 9:55 am EST, 11/28]

Indiana Rescinds Rule Barring Vanity Plates Mentioning God

The Indiana Bureau of Motor Vehicles has decided to rescind a rule that took effect earlier this month banning the issue of vanity license plates that refer to race, religion, deity, ethnicity, gender, sexual orientation or political party or affiliation. According to an AP report yesterday, the BMV will go back to its former policy of deciding on a case-by-case basis whether a requested personalized plate "carries a connotation offensive to good taste and decency or would be misleading." BMV Commissioner Ron Stiver says a letter will be sent to some 60 applicants whose plate applications were rejected because the requested combination of numbers and letters mention God. They will now get a chance to reapply for 2009 plates. A number of these applicants are like Max and Peggy Hatfield who missed the automatic renewal date for their existing plates, and were then refused plates reading "God Can." (See prior related posting.)

City Sued For Encouraging Removal of Billboard Promoting Atheism

The Freedom from Religion Foundation (FFRF) filed suit in a California federal district court yesterday against the city of Rancho Cucamonga (CA). The complaint (full text) alleges that the city violated the Establishment Clause and free speech guaranties when its actions led a sign company to remove a billboard ad that had been paid for by FFRF. The city passed on to the sign company a number of complaints from the public about the billboard that read "Imagine No Religion." (See prior posting.) The complaint argues that city, by its actions, gave the appearance of endorsing religion and interfered with speech on the basis of its content. FFRF issued a release yesterday announcing the filing of the lawsuit, and yesterday's Contra Costa Times reports on the suit.

2nd Circuit Says Village Is Bound By Its Zoning Case Settlement

In Congregation Mischknois Lavier Yakov, Inc. v. Board of Trustees for the Village of Airmont, New York, (2d Cir., Nov. 26, 2008), the U.S. 2nd Circuit Court of Appeals rejected an attempt by the the village of Airmont (NY) to back out of a 2005 zoning settlement it had agreed to, and which had been embodied in a federal district court order. At issue is the agreement to allow the building of a yeshiva (Jewish religious school), along with a dormitory for 170 students and 30 apartments. The village argued that the settlement was void as contrary to state law since it did not permit local residents to participate in decisions regarding the zoning variance. The court concluded that the village's due process rights had not been violated by the settlement. Today's Lower Hudson Valley Journal News reports on the decision.

Malaysia's Anti-Yoga Fatwa Raises Controversy Over Jurisdiction

A controversial ruling issued last week by Malaysia's National Fatwa Council is now creating a jurisdictional controversy in the country. Yesterday's Red Orbit and today's Malaysian Insider report on developments. The focus is a ruling telling Muslims to stop practicing yoga, out of fear that it could lead them to deviate from Islamic teachings. (See prior posting.) However, Malaysia's Prime Minister Datuk Seri Abdullah Badawi stepped in and told his countrymen that they could continue the popular practice, so long as they did not accompany yoga exercises with Hindu mantras. This, in turn, however led to objections from Sultans in various Malaysian states that it is the Sultans and the King that are in charge of religious affairs in the country, not the Prime Minister.

The Sultans in an unusual move though also criticized the Fatwa Council, saying that any fatwa on public matters should be brought to the Conference of Rulers before being issued. Brunei News yesterday interviewed Malaysian constitutional law expert Prof. Shad Saleem Faruqi who said that the Conference of Rulers has the right to discus any issue of national policy, but that it is not required to vet every fatwa.

The fatwa on yoga follows another controversial one barring Muslim women from wearing trousers on the theory that they might become sexually active "tomboys". Rulings by the National Fatwa Council are only advisory until they are published in the official gazette for each state. Only then do they become binding law. So far the fatwa on yoga has not been gazetted anywhere.

President's Thanksgiving Proclamation and Thoughts On It

Last week, President Bush issued the Thanksgiving Day 2008 Proclamation, declaring today to be a National Day of Thanksgiving. The Proclamation begins:

Thanksgiving is a time for families and friends to gather together and express gratitude for all that we have been given, the freedoms we enjoy, and the loved ones who enrich our lives. We recognize that all of these blessings, and life itself, come not from the hand of man but from Almighty God.

Author Susan Jacoby comments on the Proclamation in a posting at Newsweek titled Thanksgiving Proclamations: Cracks In The Wall Of Separation. Meanwhile, taking a somewhat different tack, The Becket Fund republished an op-ed written 11 years ago by Seamus Hasson titled Forgetting the Holy: The Feast of the Intransitive Verb. It suggests that by referring to the day as a time "to give thanks", we avoid focusing on who we are thanking.