Recent Prisoner Free Exercise Cases

In Yates v. Painter, (3d Cir., Jan. 13, 2009), the U.S. 3rd Circuit Court of Appeals remanded a prisoner's RLUIPA and first amendment challenges in light of an intervening decision by the 3rd Cirucit defining "substantial burden" under RLUIPA. Basil Allah Yates claimed that prison officials confiscated Nation of Islam materials taht he is required to study as part of his religion.

In Hensley v. Kampshaefer, 2009 U.S. Dist. LEXIS 1478 (WD KY, Jan. 9, 2009), a Kentucky federal district court dismissed for failure to exhaust administrative remedies a prisoner's complaint that his Native American Ceremonial Religious properties were desecrated by being tossed on the cell floor and bunk during cell searches.

In Worthen v. Oklahoma Department of Corrections, 2009 U.S. Dist. LEXIS 1843 (WD OK, Jan. 12, 2008), an Oklahoma federal district court agreed with a magistrate's conclusion that a prisoner had not alleged a substantial burden on the exercise of his religion in his complaint that he was cut off from communication with fellow Unitarian-Universalist believers when he was denied access to email.

In Taylor v. Bruno, 2008 Conn. Super. LEXIS 3133 (CT Super., Nov. 25, 2008), a Connecticut trial court rejected a prisoner's request for a temporary injunction based on allegations that his free exercise and equal protection rights had been violated. Prison authorities had denied Taekwon Taylor access to oils, incense and parchment paper that he claimed were necessary to practice his religion of Santeria, and had denied his request to perform certain religious rituals outside.

Two European Countries Move Toward Choice In School Religion Classes

Two European countries are moving toward more choice in public schools on religious education. In Wales, schools must provide daily collective worship for all children, unless their parents withdraw them. Wales Online on Thursday reported that Assembly education minister Jane Hutt has ruled that students over 16 years of age can decide on their own to opt out of the assemblies.This brings Wales in conformity with the policy in England. [Thanks to Scott Mange for the lead.]

Meanwhile, Bloomberg reported Friday that in Germany a church-supported group has obtained enough signatures to call a referendum on a 2-year old state law that mandates ethics classes for all students beginning in seventh grade, but makes religious classes elective. The proposal by the group "Pro Reli" would allow parents and students to choose between either ethics or religion courses.

Opponents of Bolivia's New Constitution Focus On Religious Changes

On January 25, Bolivians vote on a proposed new constitution for the country. (BBC News.) The new constitution, according to a report last week by IPS, contains a bill of rights, and also eliminates the provision in the current Constitution that recognizes Catholicism as the country's official religion. Instead, Article 4 of the draft constitution guarantees freedom of religion and of spiritual beliefs and provides that the state is "independent from religion." The draft constitution also assures freedom for religious education and preserves existing arrangements on schools run by different faiths. While the Catholic Church remains neutral in the referendum, opponents of the new Constitution are using pro-Catholic appeals to urge voters to reject the document. A group called Iglesias Re Unidas is running ads proclaiming: "Choose God, Vote No." Podemos party member José Antonio Aruquipa says that opposition from religious leaders stems from President Morales' belligerent attitude toward the Catholic Church. [Thanks to Scott Mange for the lead.]

Muslim Ads On Broward County Buses Raise Protest

In Broward County, Florida, an advertising agency handles the sale of ad space on county buses. The Council on American-Islamic Relations (CAIR) has bought space on the outside of 50 buses for the message: "ISLAM: The Way of Life of Abraham, Moses, Jesus and Muhammad" along with a toll-free number for further information. Today's Miami Herald reports that Fort Lauderdale Mayor Jim Naugle agrees with a group of protesters who want the ads removed. In the county, where tensions are already high over events in Gaza, Jewish activist Joe Kaufman, chairman of a group called Americans Against Hate, charges that CAIR is connected to Hamas. He also says the ad is misleading because it suggest that Abraham, Jesus and Moses were Muslims. Once the contract for ads with CAIR expires near the end of this month, the Broward County Commission will meet to decide what, if any, religious messages will be permitted on county buses in the future.

Article Traces Change In Pattern of Inaugural Prayers

Beliefnet reprints a lengthy article from today's Wall Street Journal by Steven Waldman titled Why The Inaugural Prayers Have Become Less Inclusive Over Time. Waldman says:

The country has gone through, in effect, three phases. In the first, presidents used a religious-diversity model. From 1937, when the first inaugural prayer was offered, until 1985, the presidents (with one exception in 1981) had clergy of different faiths or denominations up on the podium....

Then in 1989 and 1993 we tried what might be called the "America's pastor" model. One man, the Rev. Billy Graham, offered both the invocation and benediction. He pulled it off by using broadly inclusive language....

Next came the Protestant-only model. In 1997, Mr. Graham was the only pastor at Bill Clinton's second inaugural, but this time he made it a fully Christian prayer, ending it "we pray in the name of the Father, the Son and the Holy Spirit." .... Barack Obama mostly seems focused on ideological rather than denominational diversity.

UPDATE: In Monday's Washington Times, Rev. Franklin Graham (son of Billy Graham) who gave the invocation at George W. Bush's 2001 inauguration adds his thoughts on the issue of inaugural prayer. Graham's 2001 invocation ended with a specifically Christian reference. He urges those on all sides of the issue to "calm down" about it.

Bureau of Prisons Proposes Rule on Chapel Libraries

Yesterday, the Federal Bureau of Prisons published a proposed rule change in the Federal Register (full text) that permits prison chapel libraries to exclude books, audiotapes and videos that "could incite, promote or otherwise suggest the commission of violence or other criminal activity." The proposed rule defines this as including material that advocates violence toward particular religious, racial or ethnic groups as well as material that urges overthrow or destruction of the United States. In 2007, the Bureau of Prisons came under significant criticism for its Chapel Library Project which attempted to draw up lists of acceptable religious books for prison chapel libraries. (See prior posting.) Responding to this, Congress included Sec. 214 in the Second Chance Act of 2007, which provides:

Not later than 30 days after the date of enactment of this Act, the Director of the Bureau of Prisons shall discontinue the Standardized Chapel Library project, or any other project by whatever designation that seeks to compile, list, or otherwise restrict prisoners’ access to reading materials, audiotapes, videotapes, or any other materials made available in a chapel library, except that the Bureau of Prisons may restrict access to—(1) any materials in a chapel library that seek to incite, promote or otherwise suggest the commission of violence or criminal activity; and (2) any other materials prohibited by any other law or regulation.

[Thanks to Michael Lieberman for the lead.]

Non-Profit Victim of Madoff Fraud May Need To Repay Fictitious Earnings

Disclosures this week from the non-profit women's Zionist organization, Hadassah, raise interesting questions about the application of New York's Fraudulent Conveyance Act and the federal Bankruptcy Code's fraudulent conveyance provisions to charities that were victims of the Bernie Madoff Ponzi scheme. Jerusalem Post reports that Hadassah announced on Wednesday that it had invested $90 million with Madoff. New York Jewish Week expanded on the announcement, revealing that over the last 20 years Hadassah has withdrawn $130 million from its Madoff accounts, and suggests that under New York law Hadassah may be required to pay back some of these amounts to a Madoff trustee in bankruptcy.

New York's Debtor and Creditor Law, Section 276, provides that any conveyance of property by someone such as Madoff made with actual intent to defraud creditors is a fraudulent conveyance. Also the federal Bankruptcy Code permits a trustee to avoid any fraudulent transfer (11 USC Sec. 548). Cases such as Bear, Stearns Secs. Corp. v. Gredd (In re Manhattan Inv. Fund Ltd.), 397 B.R. 1 (SD NY, 2007)[LEXIS link] hold that there is a presumption that a Ponzi scheme involves actual intent to defraud creditors. Even if Hadassah's withdrawals were the receipt of funds through fraudulent conveyances by Madoff, courts will need to determine how far back they can go in ordering repayments to a bankruptcy trustee or receiver. (See NY Civil Prac. Law & Rules Sec. 213 and 11 USC Sec. 548).

Suits Filed To Challenge HHS Conscience Rules

Today's Washington Post reports that three separate lawsuits were filed yesterday in federal district court in Connecticut challenging the "conscience rules" recently promulgated by the Department of Health and Human Services. (See prior posting.) The rules, which protect health care providers who have moral or religious objections to performing or furnishing particular services, are scheduled to take effect January 20, the day Barack Obama comes into office. One suit was filed by Planned Parenthood (Press release). A second was filed by the ACLU on behalf of the National Family Planning & Reproductive Health Association. The third was filed by a group of seven states, led by Connecticut Attorney General Richard Blumenthal, who issued a press release discussing the challenge. Blumenthal's suit challenges the regulations as being inconsistent with the Administrative Procedure Act and the Constitution's spending clause. It also says that the regulation infringes a woman's constitutionally protected right to be free from government interference with access to contraception and other reproductive health services. Finally the suit argues that the rules require states to surrender their sovereign police powers. [Thanks to Alliance Alert for the lead.]

President Proclaims January 18 As Sanctity of Human Life Day

Yesterday President Bush issued a Proclamation (full text) declaring January 18 as National Sanctity of Human Life Day 2009. The Proclamation says in part:

All human life is a gift from our Creator that is sacred, unique, and worthy of protection. On National Sanctity of Human Life Day, our country recognizes that each person, including every person waiting to be born, has a special place and purpose in this world....

The most basic duty of government is to protect the life of the innocent. My Administration has been committed to building a culture of life by vigorously promoting adoption and parental notification laws, opposing Federal funding for abortions overseas, encouraging teen abstinence, and funding crisis pregnancy programs....

America is a caring Nation, and our values should guide us as we harness the gifts of science. In our zeal for new treatments and cures, we must never abandon our fundamental morals. We can achieve the great breakthroughs we all seek with reverence for the gift of life..... We ... encourage more of our fellow Americans to join our just and noble cause.

NY Approves Hebrew Charter School As Group Forms To Promote Them Elsewhere

On Tuesday, the full New York Board of Regents approved an application for creation of the Hebrew Language Academy Charter School. The publicly-funded charter school, to open in Brooklyn, will teach Hebrew language and Jewish culture. (See prior posting.) Yesterday's Forward reports that millionaire Michael Steinhardt, who strongly backs the school, has created a group called Areivim that seeks to obtain funding of $100 million from a group of wealthy philanthropists. The group will offer grants and expertise to local groups around the country that are considering creating similar charter schools.

A posting by Richard Kahlenberg on Taking Note blog takes issue with the promotion of ethnic charter schools. He says: "Americans once had two institutions that served as glue in our diverse population – the military (for males) and the public schools. Once the military went to an all-volunteer force, we lost that source of cohesion. We would be wrong to forfeit it among public charter schools as well."

Prof Urges Bet Din Should Examine Part of the Madoff Fraud

An op-ed published yesterday in the Forward urges that one of the principals in the Madoff financial fraud be brought before a Jewish religious court (bet din). Villanova law professor Chaim Saiman suggests that actions by Ezra Merkin, the feeder fund manager who was responsible for large amounts of money from Jewish non-profits being directed to Madoff, should be examined under Halacha (Jewish law). Saiman writes: "Halacha’s explicit religious terminology ... vocalizes the underlying sense of communal betrayal that lies at the bottom of this case."

UPDATE: This morning's New York Times reports that New York Attorney General Andrew Cuomo has issued subpoenas in an investigation into whether Ezra Merkin defrauded universities and charities by investing their funds with Bernard Madoff.

Korean Panel Says Military Objectors' Deaths Were From State Brutality

The Hankyoreh reports today that in South Korea, a Presidential Commission on Suspicious Deaths in the Military has concluded that the deaths of five Jehovah's Witness conscientious objectors in the 1970's and 1980's resulted from "beatings and acts of brutality committed against them by military officials." The officials were attempting to coerce the forcibly-conscripted objectors into participating in drills and carrying firearms in violation of their conscience or religion. Some of the objectors died from the beatings. Others committed suicide because of the violence against them. The Commission concluded that the beatings "were unconstitutional, anti-human rights acts that infringed severely upon the freedom of conscience (religion) guaranteed in the Constitution." The verdict means that surviving family members can request damages from the state.

Injunction Denied In Newdow's Challenge To Inaugural Oath and Prayers

The Washington Post reports that this afternoon federal district judge Reggie B. Walton denied a temporary injunction in Newdow v. Roberts. The decision allows Barack Obama's swearing-in to include use of "so help me God" in the oath administered by Chief Justice John Roberts. The decision also refuses to prevent clergy from delivering an invocation and benediction at the inaugural ceremony. (See prior related postings 1, 2, 3.)

UPDATE: Christianity Today reports that in denying the injunction, Judge Walton said he thought it questionable whether he had authority to issue such an injunction. Walton equated inaugural prayers with legislative prayer that Supreme Court precedent has permitted. While denying the preliminary injunction, the court did not dismiss the case.

Ministerial Exception Leads To Dismissal of Charity's Claim Against Bishop

In Community Economic Development, Inc. v. Cote, 2008 Conn. Super. LEXIS 3112 (CT Super., Dec. 1, 2008), a Connecticut state trial court applied the "ministerial exception" to dismiss a claim against the Catholic bishop of Norwalk (CT) by a charity devoted to raising for the poor in Tanzania. The charity, Buguruka Orphans and Community Economic Development, Inc. (BOCED), alleged tortious interference with business relationships and defamation stemming from charges by the bishop that there were financial irregularities in BOCED. The bishop issued a canonical order prohibiting the Father Justinian, the priest at St. Bernard's parish, from raising funds from the congregation on behalf of BOCED. Ultimately the priest was removed as vicar. The court agreed with defendant that the claims in the case are inextricably intertwined with the dismissal of Father Justinian (whose employment claims had already been dismissed under the ministerial exception) and adjudication of this case would impermissibly entangle the court in resolving ecclesiastical matters. (See prior related posting.)

Proponents Press NYC Council on Nativity Scenes In Schools

While it is a long time until next Christmas, in New York City a battle over the display of nativity scenes in public schools is back on the political front burner. Yesterday both the New York Times and Gothamist report that City Councilman Tony Avella plans to ask the full City Council to vote within the next few weeks on the issue. Yesterday the question was debated by Council's Education Committee. (New York Times). Currently, the policy of the city's Department of Education permits display of Christmas trees, menorahs and the star and crescent. School officials see these as secular symbols, but they view nativity scenes as purely religious. In 2006, the Second Circuit Court of Appeals upheld the Department of Education's policy against an Establishment Clause attack. (See prior posting.) Avella proposed a similar resolution in 2007 calling on the Department of Education to amend its holiday display policy (full text). Council member Simcha Felder strongly opposes Avella's resolution, and says that he would prefer that all religious symbols be removed.

New Jersey Governor Signs Bill Permitting Adjustment of Election Dates

On Monday, New Jersey Gov. Jon S. Corzine signed into law ACS 3186, a bill that permits the dates of municipal elections and school board elections to be adjusted to avoid conflicts with religious holidays. The bill applies to an an election if it "coincides with a period of religious observance that limits significantly the usual activities of the followers of a particular religion or that would result in significant religious consequences for such followers." A press release by Assembly Democrats says the bill was introduced after an Edison (NJ) school bond vote coincided with the Jewish holiday of Rosh Hashanah. [Thanks to Joel Katz for the lead.]

Arkansas Authorities Still Seeking Children From Tony Alamo Ministries

As previously reported, after federal authorities raided the Arkansas compound of Tony Alamo Ministries, Arkansas human services officials began to take a number of children of Alamo's followers into custody. AP reported yesterday that court orders have been issued to take up to 100 children into protective custody, but that Alamo followers have routinely moved the children to churches in other states to evade Arkansas authorities. So far 36 children have been taken into custody, and the father of one of these children has been jailed for contempt when he refused to disclose the location of his other two children. Alamo is charged with taking girls across state lines for purposes of sex. He denies the charges, saying he has acted legally, but does believe that females should be married at puberty to avoid living in sin.

Meanwhile, according to yesterday's Conway (AR) Cabin, Miller County (AR) Circuit Judge Joe Griffin placed a gag order on developments at a custody hearing for 23 children taken from the Ministry. The order was issued after the media gained access to videotapes of interviews of some of the children who had been taken into custody. Alamo Ministries has posted transcripts of September interviews with four girls.

Afghan Newspaper Editor Charged With Blasphemy

AFP reported yesterday that in Afghanistan, the editor of a small Kabul newspaper, Payman Daily, was arrested Tuesday on blasphemy charges. A a council of Islamic clerics and a government media disciplinary commission found that an article the newspaper published was "an insult to Islam." The article, not written by the newspaper staff but was taken from an Afghan website, argued that no religion-- including Islam-- was divinely revealed. The paper, even before the editor's arrest, had apologized for publishing the article. Punishment for blasphemy can range from a reprimand to the death penalty.

Suit Challenges NC Parks Permit Rule

On Monday, Liberty Counsel announced that it is filing a federal lawsuit against the North Carolina Division of Parks and Recreation challenging the constitutionality of its rule that requires a permit for any meeting, exhibition, ceremony, or speech in a state park. The suit grows out of an incident in which several members of Grace Baptist Church of Wilson (NC) who were picnicking at Fort Macon State Park were told they needed a permit when they shared their religious beliefs with other park visitors. Park officials interpret their rule to require a permit no matter how small the group is that is conducting a meeting or delivering a speech. Liberty Counsel's Matthew Staver said the park rule would even require a permit for a single individual to speak to another person in the park.

Court Rejects RFRA Defense To Endangered Species Indictment

An opinion has just become available on LEXIS in an interesting RFRA case decided some nine months ago. In United States v. Adeyemo, 2008 U.S. Dist. LEXIS 106330 (ND CA, April 8, 2008), a Nigerian adherent of a Santeria-Catholic tradition, who visits the United States regularly to sell handicraft items, was indicted for violating the Endangered Species Act. A customs inspector discovered that Moses Adeyemo was importing Yoruba wall hangings that are made partly of leopard skins. Defendant moved for dismissal of the indictment under the Religious Freedom Restoration Act.

The court held that it need not conduct the evidentiary hearing that would be required to decide the sincerity of defendant's religious beliefs, or the burden imposed, because dismissal of the indictment would be unavailable in any event. The court found that the "Government has met its burden under RFRA of demonstrating that the current permitting system for leopard skins, which includes no religious exemption, is the least restrictive means of furthering its compelling interest of conserving and protecting the endangered northern African leopard."