Vermont's Gay Marriage Law Contains Strong Religious Exemptions

Last week, Vermont's legislature overrode the veto of Gov. Jim Douglas and became the fourth state to authorize same-sex marriages. As the Burlington Free Press reported last week, this is the first time that gay marriage has been approved legislatively, rather than by the courts. Largely uncommented upon until an article in today's New York Daily News are the strong religious freedom exemptions included in the new law (full text of S. 115).

Statutory provisions on who may solemnize marriages were amended to include this provision:

[18 VAA Sec. 5144(b): ] This section does not require a member of the clergy ... to solemnize any marriage, and any refusal to do so shall not create any civil claim or cause of action.

The provisions of Vermont's Banking and Insurance law relating to Fraternal Benefit Societies was amended to include the following:

[8 VSA Sec. 4501(b):] The civil marriage laws shall not be construed to affect the ability of a society to determine the admission of its members ... or to determine the scope of beneficiaries..., and shall not require a society that has been established and is operating for charitable and educational purposes and which is operated, supervised, or controlled by or in connection with a religious organization to provide insurance benefits to any person if to do so would violate the society’s free exercise of religion, as guaranteed by the First Amendment to the Constitution of United States or by Chapter I, Article 3 of the Constitution of the State of Vermont.

Finally, the law amended Vermont's provisions banning discrimination in public accommodations to include the following:

[9 VSA Sec. 4502(l):] Notwithstanding any other provision of law, a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society, shall not be required to provide services, accommodations, advantages, facilities, goods, or privileges to an individual if the request for such services, accommodations, advantages, facilities, goods, or privileges is related to the solemnization of a marriage or celebration of a marriage. Any refusal to provide services, accommodations, advantages, facilities, goods, or privileges in accordance with this subsection shall not create any civil claim or cause of action.

This subsection shall not be construed to limit a religious organization, association, or society, or any nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization from selectively providing services, accommodations, advantages, facilities, goods, or privileges to some individuals with respect to the solemnization or celebration of a marriage but not to others.

Court Upholds Jury's RLUIPA Verdict and Constitutionality of RLUIPA

In Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Colorado, 2009 U.S. Dist. LEXIS 30623 (D CO, March 30, 2009), a Colorado federal district court upheld a jury verdict handed down last year under RLUIPA in favor of Rocky Mountain Christian Church. Rejecting defendants' motion for judgment as a matter of law, the court found that there was sufficient evidence to support the jury's finding that the county violated the equal terms, substantial burden and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act in denying the church's special use application. In a lengthy decision, the court also upheld RLUIPA against an Establishment Clause challenge and a claim that the statute exceeds Congress' enforcement authority under Section 5 of the 14th Amendment.

In a companion decision issued the same day, 2009 U.S. Dist. LEXIS 30614, the court issued a permanent injunction requiring approval of the church's 2004 special use application. However the court refused to issue an injunction barring the county from imposing any further substantial burden on the church's religious exercise, finding that an injunction merely broadly ordering obedience to the law is impermissible. (See prior related postings 1, 2.)

Roy Moore Likely To Run For Alabama Governor

CQ Politics reported yesterday that former Alabama Chief Justice Roy Moore says he is very "inclined" to enter the race for Alabama Governor in 2010. Moore was removed as state chief justice in 2003 after he refused to comply with a federal court order to take down a large 10 Commandments monument that Moore had placed in the State Judicial Building. Moore, currently the head of Foundation for Moral Law, told the AP in an interview Saturday that he would make a formal announcement of his intentions on June 1. Moore lost the Republican primary for Alabama governor in 2006.

Pakistan's President Signs Approval of Islamic Law In Swat Valley Area

BBC News and The Hindu report that Pakistan's President Asif Ali Zardari on Monday signed Nizam-e-Adl Regulation 2009, implementing Islamic law in the Malakand division of the Northwest Frontier Province. The signing followed passage of a resolution by Parliament's lower house, the National Assembly, urging Zardari to approve the regulation. Malakand is comprised of six districts, including the Swat valley. The regulation was part of an arrangement agreed to in February between the NWFP government and the Tehrik-e-Nifaz-e-Shariah Muhammadi, a group of religious hardliners, who in exchange got local Taliban to call a truce in the region. (See prior posting.) Instead of immediately signing the controversial arrangement, President Zardari put it before Parliament in order to develop a national consensus.

Health Care Facility Settles Suit Alleging Shaving of Sikh Man

In Westchester County, New York, a medical care facility has settled a lawsuit filed by the family of an Alzheimer's patient, an elderly Sikh man, whose beard, eyebrows, and mustache were cut by a nurse who had not been trained to understand the patient's religious preferences. Global Sikh News yesterday reported that the suit alleged free exercise violations as well as a claim for assault and battery. The Justice Department's Civil Rights Division had also begun an investigation into the matter. The settlement involves training of hospital staff to avoid similar issues in the future for other patients, as well as payment of $20,000 in damages to the family of now-deceased patient Pyara Singh. As part of the settlement, the hospital agreed to adopt United Sikhs' Guidelines for Hospital Admittance and Care/Extended Care for Sikhs as part of its nursing department orientation.

Lebanese Begin To Use New Right To Have Religion Removed From ID's

In Februrary, Lebanon's Interior Minister issued a circular permitting any citizen to have his or her religious affiliation removed from Civil Registry Records. (See prior posting.) According to today's Daily Star, the Union of Lebanese Democratic Youth urged people to use last Saturday as a day to request removal of affiliation from their ID's, and over 200 did so. It is expected that next, someone whose identity was removed will challenge the country's sectarian electoral law by attempting to run for Parliament. The Electoral Law restricts parliamentary candidates in various districts to members of a particular religious sect.

Organization of Islamic Conference Creates New Human Rights Commission

Al Arabiya reports that The Organization of Islamic Conference met at its headquarters in Jeddah, Saudi Arabia yesterday to create a new OIC Human Rights Commission. The 57-member OIC will seek assistance from the U.N.'s Office of the High Commissioner on Human Rights and the Geneva Institute for Human Rights in setting up its new independent Commission. OIC Secretary-General Eklemeddin İhsanoğlu said that the new Commission will: "promote tolerance, and fundamental freedoms, good governance, the rule of law, accountability, openness, dialogue with other religions and civilizations, the rejection of extremism and fanaticism, and the strengthening of the sense of pride in the Islamic identity." He also sid that this step would promote intellectual and political reform in OIC countries. OIC members also discussed "refining" the 1990 Cairo Declaration of Human Rights in Islam.

Sikh Group Wants Army To Accommodate Turbans, Unshorn Hair and Beards

Tomorrow the Sikh Coalition will begin a campaign to convince the U.S. Army to permit Sikhs to serve in the military while wearing a turban, unshorn hair and a beard. Announcing the campaign, the Sikh Coalition said that currently Sikhs are required to choose between their religion and military service. In January, the Coalition sent a lengthy letter (full text) to Secretary of Defense Robert Gates urging him to accommodate the religious needs of a Sikh doctor and a Sikh dentist who were recruited during their first years in medical and dental school respectively, but whose ability to serve while maintaining their Sikh identity is now being questioned. An online petition is available to call on the military to allow Captain Kamaljit Singh Kalsi and Second Lieutenant Tejdeep Singh Rattan to serve with their turbans, unshorn hair and beards intact. [Thanks to Michael Lieberman for the lead.]

Murder Suspect's Husband Criticizes Police For Bareheaded Mugshot

In Orland Park, Illinois, police have arrested 26-year old Nour Hadid on charges of beating her 2-year old niece to death over a four day period, according to Friday's Southtown Star. Prosecutors say she has confessed to the crime. However Nour's husband, Alaeddin Hadid, says his wife is innocent and that police have insulted their Muslim religion by releasing a mug shot of his wife without her head covered. Police say that Nour's headscarf was given back to her after the mug shot was taken, but the headscarf was later taken away from her after she made suicide threats.

Modified EU Draft Directive on Discrimination Raises Concerns

Sunday's London Telegraph reports on changes that were made this month by the European Parliament in the EU Anti-Discrimination Directive that was drafted last year by the European Commission. The directive bans discrimination in offering of goods and services. This month's amendments eliminated exemptions for organizations based on religion and belief. Critics say this means that Christian churches might be sued if they refuse to give communion, baptism or membership to non-Christians trying to get their children into a church school. It could bar current policies under which church schools give priority in admission to members of their faith. And some say it could lead to gays and lesbians demanding weddings in churches. The draft directive now goes to the European Council, where each EU country is represented. Meanwhile the Church of England plans to raise concerns about the draft with the British government.

Recent Prisoner Free Excercise Cases

In Ortiz v. Downey, (7th Cir., April 1, 2009), the U.S. 7th Circuit Court of Appeals held that the district court should not have dismissed prior to discovery a Catholic inmate's claim that he was denied a rosary and prayer booklet in violation of his free exercise rights.

In Babcock v. Clarke, 2009 U.S. Dist. LEXIS 26896 (ED WA, March 31, 2009), a Washington federal district court rejected plaintiff's free exercise, RLUIPA and equal protection claims. Plaintiff objected to authorities' refusal to permit her to attend school programming using her religious name that she adopted in 1993 and that, she says, was mandated by God when she was studying both Wicca and Noahide. Plaintiff asserts that forcing her to use her committed name is "incongruous of her religious beliefs, and debilitating her by undoing years of psycho-therapy for transsexualism."

In Mitchell v. Wiley, 2009 U.S. Dist. LEXIS 26945 (D CO, March 31, 2009), a Colorado federal district court adopted a federal magistrate's recommendation and dismissed an inmate's objections to prison rules that grant access only to publications that come directly from the publisher or approved vendors, as well as policies that restrict inmate access to publications considered inmate-to-inmate correspondence, and an alleged ban on congregational prayer of two or more Muslim prisoners. Plaintiff had argued that the policies violated his free exercise rights and his rights under RLUIPA. Among the publications sought by plaintiff was a Muslim newspaper, "The Final Call."

In Jones v. South Carolina Department of Corrections, 2009 U.S. Dist. LEXIS 26736 (D SC, March 30, 2009), a South Carolina federal district court adopted a federal magistrate's recommendation and rejected defendant's objections to an inmate educational program, finding that plaintiff's amended complaint did not adequately allege Establishment Clause, RLUIPA or Sourth Carolina Religious Freedom Act claims.

In Sweeper v. Taylor, 2009 U.S. Dist. LEXIS 27318 (ND NY, March 27, 2009), a New York federal district court rejected an inmate's free exercise claim, finding that he was not disciplined for praying with 6 other inmates during Ramadan, but instead for refusing to obey an order.

In Gallagher v. Shelton, 2009 U.S. Dist. LEXIS 27778 (D KS, March 31, 2009), a Kansas federal district court rejected free exercise and equal treatment claims by a Jewish inmate who claimed his requests for accommodation and religious items for specific Jewish holidays were denied or honored after the fact, and that he was subjected to an antisemitic comment and prejudicial treatment because of his religion.

In Horacek v. Derrick, 2009 U.S. Dist. LEXIS 27605 (ED MI, March 30, 2009), a Michigan federal district court permitted plaintiff, who was a Jewish pre-trial detainee, to move ahead with a claim that he was not adquately provided with kosher food. However the court rejected plaintiff's objections to the requirement that he not wear a yarmulke outside of his cell.

Afghan Law Recognizing Shiite Beliefs Raises Protest From Women's Rights Advocates

Yesterday's Washington Post reports on the furor that has been ignited over a new law in Afghanistan that was supposed to have been the vehicle to recognize the religious beliefs of the country's minority Shiites. However the law has been widely denounced by human rights activists, Western governments and some Afghan cabinet members. The new law:

codifies proper behavior for Shiite couples and families in the most intimate detail. It requires women to seek their husband's permission to leave home, except for "culturally legitimate" purposes such as work or weddings, and to submit to their sexual demands unless ill or menstruating.

Sima Samar, a Shiite woman who chairs the Afghan Independent Human Rights Commission, said:

That was supposed to be an achievement: to recognize Shias' legal rights so Hanafi [Sunni] laws would not be imposed on them. But it was also used by a few leaders who want to put chains around half the population.

Court Orders Discovery On Equal Access Act Claim

In Youth Alive v. Hauppauge School District, 2009 U.S. Dist. LEXIS 29017 (ED NY, April 6, 2009), a New York federal district court dismissed as moot most of the claims asserted by two high school students regarding difficulties in organizing and operating a Bible club at their school. The court found that the school had responded to most of plaintiffs' claims under the 1st and 14th Amendments and the federal Equal Access Act (20 USC Sec. 4071). A controversy remained however over the school's failure to provide a paid advisor for the club, called Youth Alive. The court concluded that discovery is necessary as to this claim. At issue is the interpretation of a provision of the Equal Access Act that provides it shall not be construed to authorize school districts to "expend public funds beyond the incidental cost of providing the space for student-initiated meetings." Defendants claim this precludes them from furnishing a paid advisor, even though they are furnished to other non-religious groups.

Partial Reversal In Case of Woman Injured During Altar Call

In Dadd v. Mount Hope Church and International Outreach Ministries, (MI Ct. App., April 9, 2009), a Michigan appellate court affirmed a jury's negligence award, but reversed its award in false light, libel and slander claims. The suit was brought by a Lansing, Michigan woman against her church and its pastor for injuries she suffered when, answering a call to the altar, she was "slain in the spirit" and collapsed. She also alleged that the pastor made derogatory remarks about her orally and in writing after the incident, including allegations she was attempting to commit insurance fraud. (See prior posting.) The court said that while the church has no general duty to protect all congregants who participate in services from injury, here the pastor made it clear that ushers were specially trained to catch people who fall during an altar call. However, on the defamation claims, the court held that the trial court should have instructed the jury on qualified privilege. Friday's Detroit Free Press reports on the decision. [Thanks to Brian D. Wassom for the lead.]

California Civil Court Overturns Jewish Religious Court Decision

In a California civil suit seeking confirmation of a Jewish religious court's judgment, a Los Angeles Superior Court judge has held that one of the rabbis on the Bet Din (religious court) had an apparent conflict of interest. Thursday's Los Angeles Times reported on the case in which the widow of Rabbi Norman Pauker claimed ownership of four Torah scrolls that had been in the possession of her late husband's assistant, Rabbi Samuel Ohana, for over a decade. The Bet Din awarded the scrolls to the widow on the basis of a written agreement that the scrolls were to merely be loaned temporarily to Ohana. In overturning the religious court's decision, the civil court found that Bet Din member Rabbi Nachum Sauer had not disclosed comments he made in a newspaper article a year earlier that suggested the Torahs belonged to Pauker. Rita Pauker says she will appeal, while Ohana has already appealed the Bet Din's judgment to a higher court in Israel. (See prior related posting.)

Obama's Easter Plans Unclear; Weekly Address Focuses On Holidays--[UPDATED]

The New York Times on Friday speculated broadly on what church the Obama family might attend for Easter services. At Friday's White House press briefing (full text), press secretary Robert Gibbs refused to disclose President Obama's choice. Meanwhile, the President's weekly address yesterday (full text) focused in part on Easter and Passover, saying that both holidays are "occasions to think more deeply about the obligations we have to ourselves and the obligations we have to one another."

UPDATE: The Washington Post reports that the Obama family attended Easter services at at St. John's Episcopal Church, across Lafayette Park from the White House. Huffington Post has a video of the Obama's going to St. John's and a detailed pool report on the service.

School District Settles Suit Over Bullying of Muslim High Schooler

USA Today reported last Wednesday that the Washoe County (NV) School District will settle lawsuits alleging that administration officials failed to protect a Muslim high schooler from bullying. Jana Elhifny dropped out of high school after death threats and harassment for wearing a Muslim headscarf. Elhifny will receive $350,000 in the settlement. Her non-Muslim friend who was ostracized by fellow students will receive $50,000. The district will also work with lawyers on bullying and discrimination policies.

Egyptian Court Revokes Magazine's License Over Blaspehmous Poem

In Egypt last Tuesday, a Cairo administrative court rescinded the publishing license of Ibdaa, a government-funded magazine, finding that it had published a blasphemous poem by Egyptian poet Helmi Salem. M&C reports that the court's order comes in a "hesbah" lawsuit, a suit brought by a private party against anyone publishing anti-Islaimic teachings. In 2007, religious scholars at al- Azhar University, concluded that Salem's poem "included expressions that insult God." Salem disagrees, saying the poem was directed at the dependency and passivity of Muslims. This is the first time that a magazine's license to publish has been cancelled in a hesbah suit. Egypt's intellectuals and artists have backed Salem, and his lawyer expects the decision will be overturned on appeal.

Developments In Obama's Faith Based Partnerships Program

JTA reported Tuesday on the White House briefing earlier this week for the Office of Faith-Based and Neighborhood Partnerships Advisory Council and a wide spectrum of religious leaders-- including advocates of church-state separation. (See prior posting.) OFBNP executive director Joshua DuBois told those in attendance that the Office would put less emphasis on the Bush administration's concern about equal access to grants. Instead it will seek the expertise of faith-based groups on policy goals such as fighting poverty, promoting responsible fatherhood, reducing unintended pregnancies, and enhancing inter-religious cooperation. He also said that OFBNP will strengthen the "legal and constitutional footing" and draw "appropriate legal lines" for religious groups receiving government funds.

Meanwhile on Friday, the U.S. Department of Education announced the appointment of Peter Groff as the Director for the Faith-Based and Community Initiatives Center in the Office of the Secretary. Groff, who is currently president of the Colorado Senate, plans to enlist faith-based groups in support of equal access to education and educational excellence for all Americans.

Court Allows Students Warned Against Prayer To Proceed With Claims

In Kyriacou v. Peralta Community College District, (ND CA, March 31, 2009), a California federal district court refused to dismiss a number of constitutional challenges brought by two students who were threatened with dismissal from a community college for disruptive behavior. At issue was an incident in which student Kandy Kyriacou prayed with her instructor in an office that the instructor shared with other faculty. Another instructor objected, and also raised objections to Kyriacou's telling the second plaintiff, Ojoma Omaga, about the incident. The court rejected defendants' motion to dismiss most of plaintiffs' 1st and 14th Amendment claims. Thursday's San Jose Mercury News reports on the decision. (See prior related posting.)