Israel's High Court Issues Injunction Pending Decision on Immigration Case

Jerusalem Post reports today that Israel's High Court has issued an injunction allowing an immigrant from Italy to remain in the country while the court considers her appeal of denial of her citizenship application under the Law of Return. The woman was converted to Judaism by an Orthodox Rabbinical Court in Rome and then almost immediately came to Israel. Six months ago, she married an Orthodox man (a kashrut supervisor), with approval of Israel's Chief Rabbinate. Now however, Interior Ministry officials refuse to recognize her as Jewish and have denied her citizenship application under their rules that require converts to remain in the community where they converted for at least nine months after conversion. Those who come sooner are required to go through a lengthy process to prove that they are Jewish. The rules were designed to prevent sham conversions by those wishing to emigrate for economic reasons. The rules also work to keep out those converted by the Conservative and Reform movements abroad.

Rabbi Andy Sacks, director of the Masorti (Conservative) Movement's Rabbinical Assembly in Israel, commenting on the case, said: "we are in an absurd situation in which clerks and bureaucrats are getting involved in halachic [Jewish legal] decisions, and they are reaching more stringent conclusions than the rabbis."

Flogging Video Undermines Arrangements For Islamic Law In Part of Pakistan

In February, the government of Pakistan entered a tentative agreement with the Taliban that are in effective control of the Swat Valley to set up a new judicial structure in the nearby Malakand region of the North West Frontier Province. The arrangement would permit cases to be adjudicated according to Islamic law. (See prior posting.) Now, according to AP and The News, the government is under renewed pressure from human rights advocates not to sign the bill formally implementing the arrangement in light of a graphic video that has surfaced showing the public flogging of a screaming 17-year old girl. AP reports:

Muslim Khan, spokesman for the Swat Taliban, said the militants publicly flogged a woman nine months ago over allegations that she had an illicit relationship with her father-in-law, but he was not sure if the video showed that incident. He defended the punishment, although he said it should not have been done in public and should have been carried out by a boy who had not yet reached puberty.

Yesterday Pakistan's Chief Justice Iftikhar Muhammad Chaudhry opened an investigation into the incident, ordering the interior secretary to appear before the court and instructing security officials to produce the victim in the Supreme Court in time for an April 6 hearing.

California Supreme Court Refuses To Answer Certified Questions From 9th Circuit

Last year, in Barnes-Wallace v. Boy Scouts of America, the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in a case challenging constitutionality of the City of San Diego's leasing city property, at nominal rents, to the Boy Scouts. (See prior posting.) The issues posed by the certified questions could have been a basis for the court to decide the case on state rather than federal Constitutional grounds. At issue is whether the lease violated state free exercise protections or the "no aid" provision of California's Constitution. The Scouts require members to affirm a belief in God. (See prior posting.) The full 9th Circuit denied en banc review of the case, but 6 dissenters argued that plaintiffs lacked standing. (See prior posting.) Now, in an unusual move the California Supreme Court has denied the 9th Circuit's request that it decide the questions of law certified to it. (Conference Results, 4/1/2009). Yesterday's Los Angeles Metropolitan News-Enterprise reports on the action.

U.S. Senate Defeats Health Care Providers' Conscience Amendment

On Thursday, the U.S. Senate defeated a Budget Bill amendment offered by Sen. Tom Coburn. The amendment, defeated by a vote of 41-56, would have banned discrimination against health care providers who refuse on grounds of conscience to "participate in specific surgical or medical procedures or prescribe certain pharmaceuticals." It would have also prohibited coercion of patients to enroll in specific health care plans. The defeat clears the way for the Department of Health and Human Services to move ahead with its announced plans to propose repeal of the conscience regulations covering health care workers adopted in the final days of the Bush administration. Catholic News Agency reports that 16 of the 25 Catholic Senators voting on the amendment voted against it.

Russia Sets Up Experts Council To Guide Courts On Religion Issues

Russia's Justice Ministry has set up an Experts Council to provide guidance on religious matters to Russia's courts and other governmental bodies. It includes representatives of Russia's four "traditional" religions-- Russian Orthodoxy, Islam, Judaism, and Buddhism. It also includes civil specialists on church and state issues, on new religious movements and on "pseudo-religious criminal and extremist structures." Georgian Daily reports:

The council was mandated by a federal law adopted in July 2008 and formed by a decree of the justice ministry in February. Its tasks include, first, it is to provide "a definition of the religious character of organizations on the basis of their constituent documents and reports about their faith and corresponding practice." Second, the council is responsible "checking and assessing the reliability of information contained in documents offered by any religious organization." And third, it is charged with evaluating whether what the religious group declares to the government that it believes and is doing in fact corresponds to reality.

The Council met for the first time yesterday and chose Aleksandr Dvorkin as its chair. Georgian Daily says this signals acceptance of Orthodox Patriarch Kirill's views that only the four traditional faiths should be supported. Dvorkin is known for his attacks on Catholics, Evangelical Protestants, Mormons and other non-traditional religious groups.

County Settles Religious Harassment Lawsuit

Today's Craig (CO) Daily Press reports that the Moffat County (CO) Commission agreed last Tuesday to settle for $15,000 a lawsuit filed by a former employee who charges that she was subjected to religious harassment by his supervisor in the Parks and Recreation Department. Plaintiff Penny Doolin claims that her direct supervisor, Tammy Seela, questioned her "in an aggressive manner" about her religious practices and beliefs. Seela says she was fired by the county Human Resources Director after complaining about the situation. The county denies any wrongdoing, but says it is settling on the recommendation of its insurance company.

Court Bars Illinois Enforcement of Pharmacy Rule Pending Trial

Last December, in Morr-Fitz, Inc. v. Blagojevich, (IL Sup. Ct., Dec. 18, 2008), the Illinois Supreme Court held that two pharmacists and 3 corporations that own pharmacies had stated a justiciable challenge to a State Board of Pharmacy rule (68 Ill. Adm. Code §1330.91(j)) that requires them to dispense the "morning after pill." (See prior posting.) After reaching this conclusion, it remanded the case to the trial court. Yesterday, according to the Springfield (IL) State Journal-Register, the Sangamon County Circuit Court granted a temporary restraining order to prevent the Illinois Department of Financial and Professional Regulation from enforcing the rule against the two pharmacists while the case is being heard. Plaintiffs claim that the administrative rule violates the Illinois Health Care Right of Conscience Act, as well as plaintiffs' 1st Amendment rights. The state contends that the pharmacists are not covered by the Right of Conscience Act. Meanwhile, it is unclear whether the state will also cease enforcing the rule against other pharmacists during the pendency of this challenge.

Historic Landmark Limits Are Not Substantial Burden Under RLUIPA

In Trinity Evangelical Lutheran Church v. City of Peoria, Illinois, (CD IL, March 31, 2009), an Illinois federal district court rejected a church's RLUIPA claim. The Church, some years ago, purchased an adjacent building which was subsequently designated as an historic landmark. Now the city refuses to permit the Church to tear down the building to build a Family Life Center. The court held that the limitations on tearing down or renovating the building because of its historic status do not constitute a substantial burden on the Church's exercise of religion. Law of the Land blog reported on the case yesterday. [Thanks to Bob Tuttle for the lead.]

Iowa Supreme Court Invalidates Ban On Same-Sex Marriage

Today Iowa joined Connecticut and Massachusetts in recognizing same-sex marriage. In Varnum v. Brien, (IA Sup. Ct., April 3, 2009), the Iowa Supreme Court held that the Iowa statute (IC Sec. 595.2) that limits marriage to unions between opposite-sex partners violates the equal protection clause of the Iowa Constitution (Art. I, Sec. 6). Conducting a lengthy analysis of equal protection precedent, the court concluded that "legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny...." Finding that the same-sex marriage ban cannot survive intermediate scrutiny, the court did not need to decide whether a strict scrutiny analysis should be applied instead. Near the end of its opinion, the Court focused on the question of religious opposition to gay marriage:

[We] give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.
A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

New York Times reports on the decision. Americans United issued a release praising the decision and saying it "has reaffirmed religious liberty." On the other hand, a release from the Traditional Values Coalition complains about judicial activism and warns of possible losses and mandates that it says could be imposed on religious groups.

Air Force Officer Cleared In Inspirational E-mail Investigation

Stars and Stripes reported Wednesday that the Air Force has cleared Col. Kimberly Toney of violating Air force policy requiring religious neutrality. Toney 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. (See prior posting.) In closing the investigation last Monday, an Air Force spokesman said: "After a thorough consideration of the facts, the Third Air Force has concluded Colonel Toney acted inadvertently and unintentionally and did not willfully violate Air Force policy or (Equal Employment Opportunity) guidelines." [Thanks to Christian Fighteer Pilot for the lead.]

Judges Nominated For 4th and 2nd Circuit Vacancies

Yesterday the White House announced that nominations for two vacant circuit judgeships have been submitted to the Senate. AP, reporting on the nominations, says that there are currently 17 vacancies on federal appeals courts.

Maryland U.S. District Court Judge Andre M. Davis has been nominated by President Obama for the 4th Circuit Court of Appeals. In 2000, Davis had been nominated by President Clinton for the 4th Circuit, but the Senate did not consider the nomination prior to Clinton's leaving office.

In 2000, Judge Davis decided Concerned Citizens of Carderock v. Hubbard, 84 F. Supp. 2d 668 (SDNY, 2000) [LEXIS link], holding that a Montgomery County, Maryland zoning ordinance did not violate the Establishment Clause. In the case, homeowners challenged the grant of a building permit to a synagogue, arguing that a zoning provision permitting "churches . . . and other places of worship" in areas zoned for single-family residences, but not allowing charitable institutions or private clubs there, amounts to an endorsement of religion. Judge Davis wrote: "the operative characteristic in the Ordinance is not religion, non-religion or any particular system of beliefs, but the County Council's reasonable, and thus legitimate, judgment about presumed compatibility with single family residential use."

New York U.S. District Court Judge Gerard E. Lynch has been nominated for the 2nd Circuit Court of Appeals. From 1992-97, Lynch served as vice-dean of Columbia Law School. Judge Lynch's decisions include two in which he ruled against complaints from Muslim prisoners.

In Pugh v. Goord, 184 F. Supp. 2d 326 (SD NY, 2001) [Lexis link], Lynch denied a preliminary injunction and dismissed claims brought by Shi'ite Muslim inmates who wanted to be able to hold services separate from Sunni Muslim prisoners. However the judgment was vacated and the case remanded by the Second Circuit on the ground that plaintiffs did not have notice that the court was considering entirely dismissing the case. (Pugh v. Goord, 345 F.3d 121 (2d Cir., 2003) [Lexis link].

In Jones v. Goord, 435 F. Supp. 2d 221 (SD NY, 2006) [Lexis link], inmates objected to New York's administration of a program for double-celling in maximum-security prisons. Part of the claim was on behalf of Muslim prisoners who argued that double-celling prevents them from practicing their religion. There is not enough room to pray in a double cell, a cellmate may render a cell unclean and therefore unfit for prayer, certain prayers and rituals require solitude, and the morning call to prayer could disturb a sleeping cellmate. Judge Lynch wrote: "plaintiffs offer no alternative solution that would accommodate their religious needs, nor do they attempt to explain how the requested exemption could be applied without compromising the legitimate penological interest in distributing the burden of double-celling equally among prisoners."

Files On Clergy Sexual Abuse Ordered Released, Implementing Settlement

Implementing a 2006 settlement with 25 victims in a clergy sexual abuse case, yesterday a Los Angeles Superior Court judge ordered the Franciscans to release hundreds of pages of personnel files and other documents. AP reports that Judge Peter D. Lichtman ordered the release to be made within 21 days, after ruling on specific documents where objections to public release were raised. It is expected that the documents will reveal when the Catholic order learned of the alleged abuse and how it dealt with those accused.

UPDATE: According to an April 30 report by Canadian Press, the the Franciscan Friars of California Inc. have filed an appeal of the order to release these documents.

Lighted Cross On City Fire Tower Is Center of Dispute

In Reading, Pennsylvania, for at least 50 years the city has displayed a large lighted cross on the city-owned Fire Tower during the Easter season, and a lighted star at Christmas. Now, according to reports in the Reading Eagle and WPVI News, the ACLU and the Appignani Humanist Legal Center wrote the city's mayor threatening to sue if the light grid was turned on this year. (WMVZ has links to the full text of 2 letters sent by AHLC.) Mayor Tom McMahon, nevertheless, continued the decades-old tradition this year, lighting up the cross Feb. 26 at the beginning of Lent. It will remain on until Easter. However, McMahon has asked city attorneys to look into leasing the Fire Tower to a private group that oversaw its renovation a few years ago, or selling it to the group for a nominal amount with a right of first refusal for the city to buy it back if it is ever sold. He thinks this might prevent an Establishment Clause challenge to the display, though he in not sure whether City Council would support the move.

Suit Against FAA By Employee Disciplined for Remarks About Gays Is Settled

A settlement stipulation (full text) has been filed with a Georgia federal district court in Dombrowski v. Federal Aviation Administration. The lawsuit, originally filed in 2006, alleges that the FAA violated a supervisory employee's speech, equal protection and due process rights, as well as his rights under the Religious Freedom Restoration Act, when it suspended plaintiff without pay for 10 days because of conversations he had with non-supervisory employees about religious denominations and about his views on homosexuality. His notice of suspension said that he expressed views, including stereotypes, inappropriate for the workplace. (Full text of complaint.) The settlement agreement calls for the FAA to distribute to all employees in its regional office a copy of Guidelines on Religious Exercise and Expression in the Workplace, originally issued by the White House in 1997. The FAA will also amend plaintiff's attendance records and will pay $9000 in attorneys fees for plaintiff. Alliance Defense Fund issued a release yesterday announcing the settlement.

Some Allegations Are Struck In Sex Abuse Suits Against Diocese

In four decisions on motions to strike portions of the pleadings in pending sexual abuse lawsuits against the Hartford Catholic Diocese, a Connecticut trial court has concluded that most of the allegations can be decided by applying neutral tort principles. The suits seek to hold the Diocese responsible for abuse carried out by two priests. However the court agreed with defendant that ruling on several of the allegations of negligence would involve a constitutionally impermissible examination of internal church governance and clergy employment decisions.

The court struck allegations that the Diocese failed to adequately evaluate the mental fitness of the abusers to serve as Catholic priests and that it induced the Catholic faithful to entrust their children's moral and spiritual well being and safety to priests and then failed to protect the children from sexual abuse. The court said that these claims would require the it to delve into Church doctrine or religious practices. The court also concluded that one child does not have a cause of action based on the Diocese's failure to report suspected abuse of another child. The cases, all decided by the Waterbury (CT) Superior Court on Feb. 24, 2009 are: Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 575; Cerninka v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 581; Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 560; and Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 590.

Court Enjoins Georgia's Ban on Sex Offenders As Church Volunteers

In Whitaker v. Perdue, (ND GA, March 30, 2009), a Georgia federal district court issued a preliminary injunction to prevent enforcement of provisions in Georgia's sex offender law to the extent that it restricts registered sex offenders from engaging in volunteer activities at churches. The court found that the prohibition in O.C.G.A. § 42-1-15(c)(1) against registered sex offenders being employed by or volunteering at any church is unconstitutionally vague. In particular, there is substantial confusion over what type of participation in church activities turns the individual into a "volunteer" under the statute. In deciding to grant the preliminary injunction, the court said that allowing registered sex offenders "to participate in their faith communities will further public safety by providing support, stability, and a grounded sense of right and wrong. Both the Board of Pardons and Paroles and the GDC recognize that encouraging people to be involved with faith-based programs will reduce recidivism."

Other portions of the court's 39-page opinion dealt with class certification and refused to dismiss plaintiffs' takings clause claims. Yesterday's Gainesville (GA) Times reported on the decision.

Ismaili Muslims Not A "Race" Under Section 1981

In Wilson v. Pepsi Bottling Group, (ND GA, March 30, 2009), a Georgia federal district court held that 42 USC Sec. 1981 was not violated when an association of convenience store owners limited its membership to Ismaili Muslims. Section 1981, enacted in the post-Civil War period, applies to racial discrimination in making or enforcing contracts. The court concluded that at the time of the enactment of Section 1981, Ismaili Muslims would not have been considered a separate race. Nor did plaintiffs prove that only Caucasian non-Ismalis were excluded. Convenience Store News reported on the decision yesterday.

Prayer At Community Policing Meetings Did Not Violate Establishment Clause

The Chicago (IL) police force, as part of its community policing efforts, holds regular "beat meetings" between police officers and community members in various neighborhoods so police and citizens can exchange information and discuss crime problems. In Kaplan v. City of Chicago, 2009 U.S. Dist. LEXIS 25573 (ND IL, March 27, 2009), a former police officer complained that beat meetings she attended opened and closed with Christian prayers. An Illinois federal district court rejected her Establishment Clause challenge on a variety of grounds. It held that plaintiff failed to show that the prayers resulted from "state action" rather than the initiative of community members. She did not show that she was coerced to participate in the prayer or the meetings. Nor did she show that the police department endorsed, rather than merely tolerated, the prayer. Finally the court held that her suit against the city required her to show a municipal policy or custom leading to a Constitutional violation. The court also rejected plaintiff's Title VII claim. She had alleged that her removal from assignments to beat meetings because of her objections was an adverse employment action due to religious discrimination.

Consent Decrees Entered In EEOC Cases On Behalf of Muslim Workers

TMC News yesterday reported that a a Minnesota federal magistrate judge has given final approval to consent decrees settling two related cases involving failure to accommodate religous needs of Muslim workers employed by, or seeking employment with, a chicken producer with plants in Minnesota and Wisconsin. The settlement in EEOC v. Gold'n Plump Poultry, Inc., requires the company to add a paid break during the second half of each shift to accommodate Muslim employees who wish to pray in the course of the work day. The timing of the break will fluctuate during the year to coordinate with the required time for Muslim prayer, but all workers, regardless of religion, will be entitled to the break. Gold'n Plump will also pay damages totalling $215,000 to 128 Somali American Muslims who complained that they were disciplined or discharged for practicing their religion.

In the second case (EEOC v. The Work Connection) brought against an employment agency that recruited workers for Gold'n Plump, the consent decree requires an end to the practice of requiring applicants to sign a form stating that they will not refuse to handle pork products in the course of their work. Some 28 applicants previously turned away for refusing to sign the form will now be offered positions at Gold'n Plump, and they will share in a damage award totalling $150,000.

5th Circuit Hears Arguments On Santeria Slaughter Ban

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Merced v. City of Euless (recording of full arguments). In the case, a Texas federal district court upheld a decision by the the City of Euless to deny Jose Merced a permit to sacrifice a goat. The animal slaughter was to be part of a Santeria religious ceremony. (See prior posting.) AP and a release from Becket Fund reported on the oral arguments. Becket Fund's Eric Rassbach, representing Merced, argued: "If Euless permits animal killing for hunting, fishing, meat production, pest control and euthanasia, it cannot ban it for religious reasons." The Becket Fund release also links to all the parties' briefs in the case.