Suit Against Monastery May Proceed Over 1st Amendment Objections

Hoyle v. Dimond, 2009 U.S. Dist. LEXIS 20051 (WD NY, March 9, 2009), is a suit for return of over $1.2 million in assets transferred to the Most Holy Family Monastery by Eric Hoyle who entered the monastery to become a Benedictine monk. The amended complaint which this decision permitted to be filed raises ten causes of action, including fraud, misrepresentation, unjust enrichment, deceptive trade practices and RICO violations. It also seeks an accounting. The dispute arose when Hoyle learned that the monastery was not affiliated with the Order of St. Benedict. At that time he withdrew and demanded back his worldly assets that he had turned over to the monastery.

In this decision, a New York federal district court rejected the monastery's First Amendment defense that adjudicating the claim would involve the court in interpreting religious doctrine. While leaving open the possibility that the defense could be raised again later, the court concluded that for now it appeared that it was merely being asked to determine the neutral fact of whether the Monastery was affiliated with the recognized Order of St. Benedict, and not a religious dispute of whether defendants can be "Benedictines" without being affiliated with the recognized order.

5th Circuit Upholds Texas Moment of Silence Law

In Croft v. Governor of the State of Texas, (5th Cir., March 16, 2009), the U.S. 5th Circuit Court of Appeals upheld the Texas moment of silence statute against an Establishment Clause challenge. The statute, as amended in 2003, requires "the observance of one minute of silence" at every Texas school, during which "each student may, as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student." The Court concluded:

the Amendments are constitutional and satisfy all three prongs of the Lemon analysis. There is no excessive entanglement, and the primary effect of the Amendments is not to advance religion. The most difficult prong—for this and for moment of silence statutes generally—is legislative purpose. But our review of legislative history is deferential, and such deference leads to an adequate secular purpose in this case.... Here, that intent was to promote patriotism and allow for a moment of quiet contemplation.

The San Angelo Standard Times reported on the decision yesterday. (See prior related posting.)

Reconversion Out of Islam Continues As Issue In Muslim Countries

In Muslim countries, court battles over the recognition of conversions out of Islam to another religion continue. In the Malaysian state of Penang, the Sharia Appeal Court has issued one of the rare decisions permitting a woman to renounce Islam and convert back to Buddhism. According to Reuters yesterday, the court held that Tan Ean Huang, an ethnic Chinese woman, had purportedly converted to Islam in 1998, as required by Malaysian law in order to marry a Muslim man. The court concluded, however, that she has never followed Islamic teachings and has been living a non-Muslim lifestyle, making the validity of the original conversion doubtful.

Meanwhile, in Egypt a lawyer has filed suit against the Minister of Interior seeking to make it easier for Christian converts to Islam to reconvert to Christianity. Currently Egyptian law requires a court to approve the reconversion. According to Monday's Christian Today, the lawsuit seeks to require the government to recognize a certificate of conversion from the Coptic Patriarchate as sufficient, just as a decree from Al-Azhar is sufficient for conversion into Islam.

Cardinal Says International Law Precludes Sale of Vatican Art for African Food

Article 18 of the 1929 Conciliation Treaty (full text) between Italy and the Vatican provides: "The artistic and scientific treasures existing within the Vatican City and the Lateran Palace shall remain open to scholars and visitors..." Apparently this is the provision referenced by Cardinal Paul Josef Cordes at a press conference Friday in response to a question about a widely-circulated online petition. In anticipation of the Pope's trip to Africa that begins today, Alberto Juesas Escudero of Spain obtained 40,000 signatures on a petition circulated through Facebook that calls on the Vatican to exchange its treasures for food for Africa. Zenit quotes Cardinal Cordes, president of the Pontifical Council Cor Unum, who said that the Church "has the duty to conserve the works of art in the name of the Italian state. It cannot sell them." Thus, he says, international law makes the exchange of art for food an impossibility.

Egyptian High Court Says Baha'is Can Get ID Cards Without Religion Listed

In an important decision handed down on Monday, Egypt's Supreme Administrative Court held that Baha'is in the country can obtain official identification cards with no religious preference listed on them. Previously the government had required Baha'is to list one of the three official religions-- Islam, Christianity or Judaism-- on their identity papers. In practice, Baha'is often refused to do so and went without the identification papers needed to access education and health care. Yesterday's Gulf News, reports on the decision that ends a 5-year legal battle. A spokesman for Egyptian Initiative for Personal Rights described the result as "a victory for civic rights for all Egyptians." (See prior related posting.) The decision, however, does not overrule a 2006 ruling by the same court that bars affirmative listing of the Baha'i faith on ID cards. (See prior posting.)

UPDATE: Human Rights Watch reported in an April 15 article that the Court's decision has been implemented. On March 19 Interior Minister General Habib al-Adly signed a decree (full text in Arabic) instructing officials in the Civil Status Department of the ministry to place a dash before the line reserved for religion in the official identification documents of Egyptian citizens who demonstrate that they or their ancestors were followers of a non-recognized religion. The decree was published in the Official Gazette on April 14 and entered into force on April 15.

Romanian Tribunals Uphold Biometric Passports Over Religious Objections

In Romania, both the Legal Commission of the Senate and the Romania Appeals Court have upheld the Emergency Government Ordinance introducing biometric passports despite protests that the new passports violate religious rights. The face image and fingerprints are digital in the new documents. EDRI reported last week that at the Appeals Court hearing, NGOs that brought the challenge argued that "the introduction of chips into passports affects the right to religion because it changes the name given by God into a figure." Some opponents had also claimed that the new passports included the figure "666", traditionally the mark of the beast from the Book of Revelation. Aurel-Vasile Sime, head of the General Division of passports, said that was not the case, and also said that Romanians had the option to choose temporary one-year passports without biometric elements.

Resolution Proposed To Display Lincoln-Obama Bible At Capitol Visitor Center

In late January, Virginia Rep. James Forbes introduced into Congress H. Con. Res. 34 seeking to have the Lincoln-Obama Bible placed on permanent display on the Lincoln table in the Capitol Visitor Center. As a posting yesterday at the Public Record demonstrates, it is an idea that might have captured broad support were it not for the wording of the resolution that seems designed to stir up the controversy between those who want more religion in government and those who support a robust Establishment Clause. Here are a few of the contentious excerpts (though many of the other of the 16 "Whereas clauses" are unobjectionable to all sides):

Whereas the Holy Bible is God's Word;

Whereas each President, after taking the oath of office, has repeated President Washington’s petition prayer seeking divine help by saying, "So help me God";...

Whereas in Lincoln’s Second Inaugural Address, he referred to God 14 times, to verses in the Holy Bible 4 times, and invoked prayer 3 times in 701 words; ...

Resolved ... That Congress calls upon the Capitol Preservation Commission ... to place the Lincoln-Obama Bible on permanent display ... at the Capitol Visitor Center for the benefit of all its visitors to fully understand and appreciate America's history and Godly heritage.

Pakistan and Egypt Move In UN On Resolutions Against Anti-Muslim Speech

A new chapter began last week in the long running effort of Muslim countries to obtain United Nations support for banning "defamation of religion," particularly criticism of Islam. Last Wednesday Pakistan began circulating a new resolution "Combating Defamation of Religions" to members of the Human Rights Council. (UN Watch article including full text.) Meanwhile on Friday, Egypt took an unusual step. Instead of waiting, as usual, for the Special Rapporteur to file his report in June, Egypt has begun circulating a draft of a free speech resolution to members of the Human Rights Council. According to Saturday's Vancouver Sun , this pre-empts Canada which usually takes the lead in introducing the resolution on freedom of expression. The Egyptian draft expresses concern about abuses of speech. It is likely to draw opposition from many Western countries.

Recent Articles and New Book of Interest

From SSRN:

• Edward H. Sisson, A Proposal for State Legislatures to Pursue Impartial Audits of the Scientific Basis for Evolution as the State Teaches it in its High Schools, Colleges, and Universities, (March 10, 2009).
• Enyinna S. Nwauche, Law Religion and Human Rights in Nigeria, (African Human Rights Law Journal, Vol. 2, 2008).
• Mark Strasser, Religion in the Schools: On Prayer, Neutrality and Sectarian Perspectives, (Akron Law Review, Vol. 42, pp. 185-241, 2009).
• Mark Strasser, State Funding of Devotional Studies: A Failed Jurisprudence that Has Lost its Moorings, (Journal of Law and Family Studies, Vol. 11, pp. 1-34, 2008).
  

From Bepress:

• Farrokh B. Sekaleshfar, Abortion Perspectives of Shiah Islam, (Studies in Ethics, Law, and Technology: Vol. 2 : Iss. 3, Article 4).
• Farid Sufian Shuaib, Review of "Islamic Law in Contemporary Indonesia: Ideas and Institutions", (Asian Journal of Comparative Law: Vol. 3 : Iss. 1, Article 11, 2008).

From SmartCILP:

• Josie F. Brown, Representative Tension: Student Religious Speech and the Public School's Institutional Mission, 38 Journal of Law & Education 1-82 (2009).
• Ofrit Liviatan, The Impact of Alternative Constitutional Regimes on Religious Freedom in Canada and England [scroll to pg. 45], 32 Boston College International & Comparative Law Review 45-82 (2009).

New Book:

• Jay Wexler, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church-State War, (Beacon Press, June 2009), [book's website], author interview in Religion Dispatches.

DC Circuit Says Religious College Is Exempt From NLRB Jurisdiction

In Carroll College, Inc. v. NLRB, (DC Cir., March 13, 2009), the DC Circuit Court of Appeals held that the National Labor Relations Board lacks jurisdiction over Carroll College under the Supreme Court's Catholic Bishop case because Carroll is a religiously operated school. The DC Circuit applied the test it had developed in 2002 in University of Great Falls v. NLRB, finding that Carroll College held itself out as providing a religious educational environment. The court concluded that the NLRB had erred in also requiring proof of actual religious influence or control. Focusing on the other portions of the Great Falls test, the Court determined that Carroll College is a non-profit institution that is affiliated with the Presbyterian Church. It held that affiliation, without direct ownership, operation and control, is enough. Finally the court concluded that it could accept the college's challenge to NLRB jurisdiction under Catholic Bishop, even though this theory was raised for the first time on appeal. Before the NLRB, the school (now known as Carroll University and located in Waukesha, Wisconsin) had argued that the Religious Freedom Restoration Act exempted it from NLRB jurisdiction. Friday's Chicago Tribune reports on the decision.

Obama Connects With 5 Pastors For Prayer and Discussion

While the Obama family has not yet joined a church in Washington, D.C., today's New York Times reports that President Barack Obama has created connections with five pastors who he telephones for private prayer sessions and with whom he discusses the role of religion in politics. The pastors, who are centrists theologically, generally share Obama's belief in religion as a force for social justice. The five are Bishop T.D. Jakes, Rev. Jim Wallis, Rev. Kirbyjon H. Caldwell, Rev. Joel C. Hunter and Rev. Otis Moss Jr. Jakes and Caldwell also sometimes served as spiritual advisers to President George W. Bush.

British MP Proposes Ban On Demonstrations Against Uniformed Military

A great deal of anger has surfaced in Britain over the protest last week (Guardian 3/11) by a tiny Islamist group against soldiers returning from Iraq. During a parade in the town of Lutton featuring 200 returning soldiers, Ahle Sunnah al Jamah members carried signs such as one reading "Anglian soldiers go to hell." Now, according to The National yesterday, a Conservative member of Parliament has introduced a bill to outlaw this type of demonstration against the military. The proposed bill tracks language in the Racial and Religious Hatred Act of 2006 (which protects Muslims in Britain). It would ban stirring up hatred against "uniformed military personnel on official duties." The new ban has been offered as an amendment to a policing bill currently working its way through Parliament.

Saudi Religious Enforcers Battle Sorcery

Today's Saudi Gazette reports on the special efforts of the government's Commission for Promotion of Virtue and Prevention of Vice in combating sorcery, which is banned by Islam. Apparently there is a special branch of the Commission devoted to the topic. An arrest was recently made in Al-Ahsa where sorcery had become "the talk of the town." Sheikh Adel Faqih, head of the Commission's anti-sorcery branch, says that religious pilgrims to Saudi Arabia are misled by sorcerers who make use of Qur'anic terms. According to the report, Faqih "explained that a sorcerer can be identified when he asks for the name of a patient and for the name of the patient’s mother or if he is seeking to buy an animal with certain features. He can also be identified if he asks for a sheep to be killed without mentioning Allah’s name and asks to stain the body with the animal's blood or if he asks for similar unusual things."

Lots of New Prisoner Free Exercise Cases Available This Week

In Sanders v. Ennis-Bullock, (9th Cir., Feb. 18, 2009), the U.S. 9th Circuit Court of Appeals agreed with the district court that the Arizona prison policy limiting inmates to ten religious audiotapes at a time did not substantially burden plaintiff’s exercise of religion. However it remanded for further findings a portion of plaintiff’s Americans With Disabilities Act claims relating to denial of biaural headphones. (See prior related posting.)

In Garner v. Morales, (5th Cir., March 6, 2009), the U.S. 5th Circuit Court of Appeals vacated a portion of the district court’s summary judgment against defendant and remanded the case for the court to reconsider whether counsel should be appointed, and then to reconsider its rejection of plaintiff's RLUIPA challenge to the Texas prisons grooming policy. Plaintiff, a Muslim, wants to wear a quarter-inch beard. The court however affirmed the trial court's dismissal of plaintiff's First Amendment and Equal Protection claims and of the lower court's holding that sovereign immunity barred damage actions against defendants in their official capacities.

In Adekoya v. Chertoff, 2009 U.S. Dist. LEXIS 16980 (D NJ, March 4, 2009), a New Jersey federal district court refused to permit an immigration detainee to challenge the absence of Halal food at the Bergen County jail unless in an amended complaint plaintiff is able to detail facts distinguishing this from an earlier 3rd Circuit case that denied a similar claim.

In Prentiss v. Clark, 2009 U.S. Dist. LEXIS 16951 (ED CA, Feb. 20, 2009), a California federal magistrate judge dismissed, with leave to file an amended complaint, free exercise, equal protection and RLUIPA claims brought by a Wiccan prisoner who claimed that religious activities for the Wiccan/Pagan Community in his facility were insufficient-- only one hour of worship every Saturday.

In Buckner v. Casaleggio, 2009 U.S. Dist. LEXIS 17310 (D NV, Feb. 27, 2009), a Nevada federal district court permitted plaintiff , an Orthodox Sunnah Muslim, to move ahead with his claim for injunctive relief asserting that his rights under the First Amendment, the Equal Protection Clause and RLUIPA were violated when authorities permitted only joint Juma'h religious services with Nation of Islam members, instead of separate services.

In Echtinaw v. Lappin, 2009 U.S. Dist. LEXIS 17842 (D KS, March 9, 2009), a Kansas federal district court dismissed a Muslim prisoner's claims that his ability to practice this religion is infringed by disruption of worship services, lack of access to religious materials and problems with religious celebrations.

In Perez v. Frank, 2009 U.S. Dist. LEXIS 18241 (ED WI, March 9, 2009), a Wisconsin federal district court refused to grant summary judgment to defendants and permitted two Muslim prisoners to move to trial on a variety of claims. They seeking access to several items of religious property-- primarily certain items of apparel worn to emulate the Prophet Muhammad. One of the plaintiffs seeks halal meals and also object to TB testing that involves subcutaneous injection of substance derived from pork. However 4 defendants were dismissed from the case. Over the past few years, 3 other opinions have been handed down in the case.

In Cabbagestalk v. South Carolina Department of Corrections, 2009 U.S. Dist. LEXIS 18412 (D SC, Feb. 24, 2009), a South Carolina federal district judge accepted the recommendations of a federal magistrate judge to deny a preliminary injunction to a Rastafarian prisoner who objected to a number of aspects of prison rules relating to clothing, food and confinement that interferes with religious services.

In Amaker v. Goord, 2009 U.S. Dist. LEXIS 19327 (WD NY, March 10, 2009), a New York federal district court rejected a claim by a Nation of Islam prisoner that prison authorities were in contempt of a prior injunction by transferring him to another detention facility. The injunction protected plaintiff in the wearing of dreadlocks.

In Musto v. Trinity Food Services, Inc., 2009 U.S. Dist. LEXIS 18589 (MD FL, Feb. 20, 2009), a Florida federal district judge permitted an inmate to move ahead with his First Amendment claim that he was denied "Kosher dietary meals," appropriate Jewish materials, and visits from a Rabbi. The court also permitted plaintiff to proceed with his retaliation claim, and with his RLUIPA claim against individuals in their official capacities for nominal damages.

In Avery v. Chacon, 2009 U.S. Dist. LEXIS 18958 (ND CA, Feb. 10, 2009), a California federal district court permitted plaintiff to move ahead with his claim that a corrections officer confiscated and destroyed his religious and cultural material.

Air Force Investigating Commander's Promotion of Religious Website Video

Today's New York Times reports that the Air Force has begun an investigation into whether its policy on religious neutrality was breached when a commander sent an e-mail to thousands of personnel in her 501st Combat Support Wing in Europe urging them to view an inspirational video on Catholic website. The video promoted by Col. Kimberly Toney depicted the life story of a man born without arms or legs who says his faith in Jesus is what helped him overcome his physical limitations. Apparently some who visited the website were more offended by other items they found there, including one comparing President Obama's support for abortion rights to activities of Hitler.

Interim Guidelines adopted by the Air Force in 2006 provide that "leaders at every level bear a special responsibility to ensure their words and actions cannot reasonably be construed to be officially endorsing nor disapproving any faith belief or absence of belief.... [S]uperiors need to be sensitive to the potential that their personal expressions may appear [to subordinates] to be official..." (See prior related posting.)

UPDATE: As a comment to this posting indicates, the continuing authority of the Air Force's 2006 Guidelines is unclear. The Conference Committee Report for the 2007 Defense Appropriation Act directed the Air Force to rescind the policy and reinstate 1999 Guidelines on the chaplains' service. (See prior posting.) Shortly thereafter, the Air Force did issue new guidelines for chaplains, reflecting its 1999 policy. (See prior posting.) However those new guidelines do not explicitly mention repeal of the 2006 Interim Guidelines. Moreover the new Guidelines govern activities of chaplains, but do not mention responsibilities of commanders regarding endorsement of religion. Finally subsequently the Air Force's publication Air Force Call republished the 2006 Guidelines indicating that they are still in effect.

Appellate Court OK's Order To Remove Bible From Counsel's Table At Trial

A Texas state appellate court has upheld a trial court's order that a criminal defendant in a drug trial remove a Bible that he wanted to have on counsel's table in front of him. Defendant was still permitted to have the Bible nearby, but was required to place it in a less prominent location. In Alexander v. State of Texas, (TX Ct. App., March 11, 2009), the court emphasized that a trial court has inherent power to restrict displays that might detract from orderly proceedings focused on the issues to be tried. Further it concluded that absent a showing that defendant's religion in some way required him to display the Bible, there was no exercise of religion involved in merely having a book displayed to jurors.

Harassment Charges Held Nonjusticiable Under Establishment Clause

In Destfino v. Kennedy, 2009 U.S. Dist. LEXIS 18138 (ED CA, Jan. 8, 2009), plaintiffs filed a wide-ranging complaint against numerous defendants, including a church, alleging that defendants made fraudulent misrepresentations to induce plaintiffs to enter into home and auto loans in a debt elimination program. In part of its decision, a California federal district court dismissed as nonjusticiable allegations that defendants harassed certain of the plaintiffs-- including threatening to cut their son off from Church ministry participation-- when plaintiffs reported the fraud to church elders. Church elders told plaintiffs to remain silent about the charges. The court concluded that these allegations involve church governance and operations so that adjudicating them would violate the Establishment Clause.

Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds

Just prior to President Barack Obama's inauguration, the District Court for the District of Columbia refused to issue a preliminary injunction to prevent the Chief Justice from administering the oath of office using the phrase "so help me God" and also refused to preliminarily enjoin clergy delivering an invocation and benediction at the ceremony. (See prior posting.) Yesterday in Newdow v. Roberts, (D DC, March 12, 2009), the court dismissed the case entirely finding that plaintiffs lack standing. It concluded that "plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs." The court also held that plaintiff Michael Newdow was precluded from litigating his standing to challenge clergy-led prayers at the inauguration because of his participation in prior litigation that unsuccessfully raised the same issue.

Two days prior to the decision, plaintiffs submitted a motion seeking to file an Amended Complaint (full text of complaint) adding 230 individual plaintiffs and adding the U.S. Secret Service and the U.S. Marshalls Office as defendants. The court's opinion dismissing the case said in a footnote that while it was not yet formally ruling on that motion: "the additional plaintiffs are similarly situated to the current plaintiffs, and the speculative nature about what will occur at the next two Inaugural ceremonies lacks any persuasive value." Bob Ritter, co-counsel for plaintiffs, says that an appeal of the dismissal order is planned. See press materials from Appignani Humanist Legal Center. [Thanks to Bob Ritter for the lead.]

Arizona Appellate Court Upholds Corporate Scholarship Tax Credits

In a 2-1 decision in Green v. Garriott, (AZ Ct. App., March 12, 2009), an Arizona state court of appeals has rejected state and federal constitutional challenges to the state's income tax credit for scholarship contributions from corporations. Contributions are made to non-profit school tuition organizations that use the funds for scholarships to nonpublic schools. 70% of the scholarships are awarded through religious STO's. Rejecting a federal Establishment Clause challenge, the majority said that:

Given the neutrality of the statute, and the multiple layers of private choice that stand between the legislature’s decision to provide a corporate tax credit and the eventual acceptance of scholarship funds by sectarian schools, we do not believe the Establishment Clause has been violated.

The court also rejected the argument that the tax credit violates state constitutional provisions prohibiting the laying of taxes or appropriation of public money to aid any private or religious school. Finally the court rejected the argument that the tax credit violates the state's responsibility , set out in the Arizona Enabling Act, to maintain a system of public schools.

Dissenting in part, Judge Kessler argued that the tax credit raises Establishment Clause problems because "the record raises questions as to the tax program's secular purpose, that Arizona tax scheme is not neutral with respect to religion and does not provide benefits directly to a wide spectrum of individuals defined without reference to religion." He explains:

The statutory scheme does not limit either the STOs or the recipient private schools from discriminating on the basis of religion on who will receive tuition scholarships from the tax credits. Indeed, the complaint alleges both the STOs and the recipient schools do and will discriminate on the basis of religion....

§ 43-1183 has an aggregate annual limit of tax credits. Thus, it is possible ... to have several corporations use the entire aggregate tax credit in any year ... to fund scholarships to one STO, which will only fund schools of one religious denomination....

The Arizona Capitol Times reports on the decision.

Georgia House Passes Bill Permitting Adoption of Embryo

According to a press release by Georgia Right to Life, yesterday the Georgia state House of Representatives pased by a vote of 96-66 and sent on to the Senate the Option of Adoption Act (HB 388). The Act deals with excess embryos created through in vitro fertilization procedures. It provides procedures for legal transfer of such embryos to other women for implantation. The bill not only confirms that the person giving birth to the transferred embryo will be considered the legal parent, but also allows formal adoption of the embryo before birth. The bill appears to permit expedited adoption of the embryo by the "recipient intended parent" even before the embryo is transplanted into the woman's womb. Clarke Forsythe, senior counsel of Americans United for Life, said: "This bill is very timely given the need to humanize the embryonic human at a time when at the federal level embryonic stem cell research is being promoted."