Malaysia Looks To Expand Its Islamic Finance Industry

Bloomberg reports today that Malaysia is taking several steps to expand the international reach of its Islamic banking industry. It is attempting to attract a large international bank that would provide services that comply with shariah law. Also, last month Malaysia's central bank raised the percentage of foreign ownership permitted in local Islamic banks. In addition, the government is considering a new issuance of $1 billion in global Islamic bonds. Malaysia’s government successfully raised $600 million in 2002 through the sale overseas of sukuk (Shariah-compliant bonds).

Recent Articles and Books of Interest

From SSRN:

• Richard W. Garnett, Judicial Enforcement of the Establishment Clause, (Constitutional Commentary, Forthcoming).
• Abner Greene, Three Theories of Religious Equality...and of Exemptions, (Texas Law Review, Vol. 87, No. 963, 2009).
• Simon Butt, Polygamy and Mixed Marriage in Indonesia: Islam and the Marriage Law in the Courts, (in Indonesia: Law and Society, T. Lindsey, ed., Federation Press, 2008).
• Thomas Charles Berg, Religious-School Financing and Educational Pluralism in the American Tradition, (Rivista Antonianum, 2009).
• Gregory A. Kalscheur, Conscience and Citizenship: The Primacy of Conscience for Catholics in Public Life, (Journal of Catholic Social Thought, Vol. 6, No. 2, Summer 2009).
• Jessica Knouse, From Identity Politics to Ideology Politics, (Utah Law Review, Forthcoming).
• Michael Kent Curtis, Be Careful What You Wish For: Gays, Dueling High School T-Shirts, and the Perils of Suppression, (Wake Forest Law Review, Forthcoming).
• Nelson Tebbe, Excluding Religion: A Reply, (University of Pennsylvania Law Review, Vol. 157, 2009).

From Bepress:

• Rahma Hersi, A Value Oriented Legal Theory for Muslim Countries in the 21st Century: A Comparative Study of Both Islamic Law and Common Law Systems, (Cornell Law School Graduate Student Papers Series, Paper 29, April 2009).

From SmartCILP:

• Kyle Duncan, Misunderstanding Freedom from Religion: Two Cents on Madison's Three Pence, 9 Nevada Law Journal 32-62 (2008).
• Gene R. Nichol, Establishing Inequality, (Reviewing Martha C. Nussbaum, Liberty of Conscience: In Defense of America's Tradition of Religious Equality.) 107 Michigan Law Review 913-930 (2009).
• Bishop Thomas J.Paprocki, Address. Annual Meeting of the National Diocesan Attorneys Association, As the Pendulum Swings from Charitable Immunity to Bankruptcy, Bringing It to Rest with Charitable Viability, 48 Journal of Catholic Legal Studies 1-18 (2009).
• Joshua Foster, Prophets, Cartoons, and Legal Norms: Rethinking the United Nations Defamation of Religion Provisions, 48 Journal of Catholic Legal Studies 19-57 (2009).
• Harry G. Hutchison, Work, the Social Question, Progress and the Common Good? (Reviewing Recovering Self-Evident Truths: Catholic Perspectives on American Law, edited by Michael A. Scaperlanda and Teresa Stanton Collett), 48 Journal of Catholic Legal Studies 59-116 (2009).

Recent Books:

• Daniel O Conkle, Constitutional Law: The Religion Clauses, Second Edition, (Foundation Press, 2009), excerpts on SSRN.
• Steven P. Miller, Billy Graham and the Rise of the Republican South, (Univ. of Pennsylvania Press, March 2009), reviewed in the New York Times.

Paper Questions Governmental Structure of Ave Maria, Florida

Beginning this week end, the Naples (FL) Daily News is running a lengthy 3-part investigative series titled Ave Maria: A Town Without a Vote. According to the article, when legislation creating the new town surrounding Catholic Ave Maria University was enacted, it also contained unusual provisions giving ongoing control to the town's founder, former Domino Pizza owner Tom Monaghan, and and to local landowner Barron Collier Cos. The paper reports: "The law makes landowners, not registered voters, the ultimate authority in Ave Maria. The law ensures Monaghan and Barron Collier Cos., as the largest landowners, can control Ave Maria’s government forever." The web page linking to the series also contains links to numerous primary source documents relating to the governmental structure of the town, and to its legality. [Thanks to Liam Dillon for the lead.]

In Kuwait, Islamists Challenge Women Candidates For Parliament

According to AFP, 19 women are running in Kuwait's May 16 Parliamentary elections-- all hoping to become the first women in Parliament. However at least one Islamic group has issued a fatwa declaring that voting for women candidates violates Islamic law. One of the leading women contenders is Aseel al-Awadhi. According to the Arab Times last week, the Thawabit Al-Ummah bloc has filed a lawsuit against her charging her with sacrilege. It claims she challenges the Islamic religion and has raised doubts about women wearing the hijab. The group wants an apology from those women who have questioned the hijab.

Recent Prisoner Free Exercise Cases

In Moriarty v. Rendell, 2009 U.S. Dist. LEXIS 37043 (MD PA, May 1, 2009), a Pennsylvania federal magistrate judge refused to grant a temporary restraining order against prison officials who insist that plaintiff, as a condition of parole, attend a religious-based 12-step alcohol abuse treatment program. The court concluded that plaintiff had not suffered the irreparable harm required for injunctive relief.

In Dawson v. Burnette, 2009 U.S. Dist. LEXIS 37729 (WD MI, May 4, 2009), a Michigan federal district judge adopted a magistrate's recommendations that a Buddhist prisoner be permitted to proceed with his 1st Amendment damage claim alleging that he was denied a vegan diet, but that his claims under RLUIPA be dismissed and his claims for declaratory and injunctive relief be dismissed as moot.

In Mitchell v. Hamlet, 2009 U.S. Dist. LEXIS 37567 (ND CA, April 15, 2009), in a screening hearing, the court permitted plaintiff to proceed with his claims that he was denied a Halal diet, the ability to wear a beard, the ability to group-worship, the ability to use earned time to attend prayer services, and that he was limited to a single vendor in purchasing religious items. He also claims he was limited in the amount of prayer oils that he can order, and that no Muslim chaplain or large prayer rug is available to Muslim inmates.

In Boyd v. McGuire, 2009 U.S. Dist. LEXIS 38026 (D NJ, May 5, 2009), a New Jersey federal district court permitted a Muslim jail inmate to proceed with his equal protection claim that Muslim prisoners receive only a vegetarian diet, while Jewish prisoners receive a kosher diet that includes meat. The court dismissed his 1st Amendment claim, but with leave to amend and refile. It also dismissed his claim for prospective injunctive relief because he was about to be transferred to a different facility.

In Davis v. Hawaii, 2009 U.S. Dist. LEXIS 38091 (D HI, May 4, 2009), a Hawaii federal magistrate judge transferred venue to Arizona in a case alleging that a Hawaii prisoner incarcerated in Arizona was prevented him from practicing his Native Hawaiian religion.

Obama Will Address Muslim World From Egypt June 4

Yesterday's Haaretz reports that President Obama will deliver an important speech on U.S. relations with the Muslim world in Egypt on June 4. During the presidential campaign, Obama promised that early in his presidency, he would deliver a major address to Muslims from a Muslim capital. The speech was announced at Friday's White House press briefing (full text), and led to this exchange between a reporter and Press Secretary Robert Gibbs:

Q: ... there are a lot of Muslims who look at the leadership of Egypt warily and consider it to be exactly the problem with leaders in the Muslim world.... Is it not possible that this is a bad selection?

MR. GIBBS: No. I think, as I mentioned earlier, ... in many ways, this is the heart of Arab world. And ... this isn't a speech to leaders. This is a speech to many, many people and a continuing effort by this President and this White House to demonstrate how we can work together to ensure the safety and security and the future well-being, through hope and opportunity, of the children of this country and of the Muslim world....

British Muslim Police Chef Objects To Requirement He Cook Pork

Abu Dhabi's The National reported yesterday on a case about to be heard by an employement tribunal in Britain. In London, Hasanali Khoja, a Muslim, is charging the Metropolitan Police Department with religious discrimination. Originally hired as a catering manager, Khoja's duties did not involve actually cooking food. However when he was transferred to police headquarters in west London, he was expected to cook pork products, and when he refused he was placed on paid special leave for a year. His law suit claims that his religious beliefs should have been accommodated. The only accommodation his west London supervisor suggested was that he wear gloves while handling the pork products. Right wing political parties such as the British National Party have seized on this case to object to "the madness of multiculturalism."

Pope, In Jordan, Speaks On Manipulation of Religion

On the first leg of his trip to the Middle East, Pope Benedict XVI today was in Jordan. Both Zenit and the New York Times report on his interesting speech regarding ideological manipulation of religion delivered to Muslim religious leaders after his visit to the King Hussein bin Talal Mosque and the adjacent Hashemite Museum. In his remarks (full text), he said in part:

Certainly, the contradiction of tensions and divisions between the followers of different religious traditions, sadly, cannot be denied. However, is it not also the case that often it is the ideological manipulation of religion, sometimes for political ends, that is the real catalyst for tension and division, and at times even violence in society? In the face of this situation, where the opponents of religion seek not simply to silence its voice but to replace it with their own, the need for believers to be true to their principles and beliefs is felt all the more keenly. Muslims and Christians, precisely because of the burden of our common history so often marked by misunderstanding, must today strive to be known and recognized as worshippers of God faithful to prayer ... and ever mindful of the common origin and dignity of all human persons...The resolve of Jordanian educators and religious and civic leaders to ensure that the public face of religion reflects its true nature is praiseworthy.

Obama Compromises On End To D.C. School Vouchers

In the Omnibus Appropriations Act passed by Congress in March and signed by the President, Congress effectively eliminated the controversial D.C. Opportunity Scholarship school voucher program after next year. Over half of the students receiving vouchers attend religious-- mostly Roman Catholic-- schools. (See prior posting.) The Washington Post reported on Thursday, however, that President Obama is now supporting a compromise with supporters of the voucher program. He will ask Congress to appropriate funds so that all 1,716 children currently in the District's voucher program will continue receiving grants until they graduate high school. However no new participants will be added. Sunday's Washington Post carries assessments from 15 political and education experts on Obama's decision.

Two Amish Families Held In Contempt Over Sewage Code Compliance

In Ebensburg, Pennsylvania, at a contempt hearing on Friday, a state court judge ordered the homes of two Amish families padlocked, and the occupants evicted, until they complied with court orders to bring the homes into compliance with the county's building and sewage codes. The Altoona Mirror reports that the judge gave the families-- who are members of the conservative Swartzentruber Amish sect--until Monday morning to remove their belongings. The court had issued a preliminary injunction in February ordering the families to comply. However defendants say compliance would violate their religious beliefs. (See prior posting.)

Activists Will File Criminal Complaint Against Pope In Israel

As Pope Benedict XVI arrives in Israel Monday on his trip to the Middle East, two activists plan to file a criminal complaint against him in the Jerusalem Magistrate's Court charging him and others with possessing stolen goods, receiving items considered stolen and receiving goods that were obtained through criminal means. According to yesterday's Arutz Sheva, the complaint alleges that archaeological and scholarly treasures that belong to the Jewish people are being held by the Vatican in Rome. At issue are a number of relics from the Second Temple, destroyed in 70 C.E. The items-- including the 7-branch golden menorah-- were allegedly taken to Rome by Titus who plundered the Temple. The complaint also covers some 7500 books in the Vatican library taken there hundreds of years later.

British Court Upholds Ban On Hindu Funeral Pyres

Yesterday a British High Court rejected a challenge by a 70-year old Hindu man living in Britain to the country's ban on open-air funeral pyres used in traditional Hindu funerals, saying it must respect the political process. India Times and the London Telegraph report that the lawsuit, brought by Davender Ghai, founder of the Anglo-Asian Friendship Society, was a test case for the British Hindu community. The suit claimed that Britain's Cremation Act 1902 and the Cremation Regulations 2008 violate Articles 8 (respect for private and family live) and 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The court, however, concluded that the ban was justified because others in the community would find the use of pyres to be offensive. The court gave Ghai permission to take the case to the Court of Appeal. (See prior related posting.)

Court Hears Petition To Force Teenager To Have Chemo Over Religious Objections

Today was the second day of a trial in a Minnesota state court on a petition filed by state child protection workers who want to force 13-year old Daniel Hauser to have chemotherapy and radiation treatments for his Hodgkins lymphoma-- a treatment that results in 95% survival rates. Daniel changed to complementary medicine, including dietary changes and ionized water, after suffering side effects from a first round of chemotherapy. Yesterday's Argus Leader reports on the background of the case, while AP and Fox News report further on the trial proceedings. The teenager says that he is a medicine man and church elder in the Native American religion of the Nemenhah band of Indians from Minnesota. While the family is not of Native American background, the boy and his mother were adopted into the band. Daniel says he will resist any attempt to administer chemotherapy to him, and his doctor says it would be difficult to forcibly administer it. However physicians say the boy is likely to die without the treatment.

6th Circuit Defines Test For Religious Accommodation Claim Against Union

Title VII of the 1964 Civil Rights Act prohibits employment discrimination by labor unions as well as by employers. In Reed v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (6th Cir., May 7, 2009), the U.S. 6th Circuit Court of Appeals faced the question of how to apply to unions the religious accommodation standards it has developed in employer cases. In cases charging an employer with failure to accommodate an employee's religious beliefs, the employee must prove a prima facie case by showing he was discharged or disciplined for failing to comply with an employment requirement that conflicts with his religious beliefs. Only then does the issue of the reasonableness of any accommodation come into play.

In Reed, an employee who had religious objections to union membership was accommodated by allowing him to contribute the full amount of union dues to charity. The employee, however, argued that he should be allowed to contribute to charity $10 per month less-- the smaller amount that equals the agency fee charged by the union in lieu of dues to those who object to the union's political stances. The lead opinion written by Judge Batchelder held that the employee, Jeffrey Reed, had suffered no discipline or adverse employment action other than the accommodation itself. Thus he had not proven a critical element of his claim.

Judge Guy, concurring in the result, concluded that Reed's claim fails because the accommodation offered by the union was reasonable. Judge McKeague, dissenting, argued that Reed had established his prima facie case by showing that he was subjected to adverse employment action. He was required to pay more as a religious objector than he would have had to pay as a secular objector to union membership. Judge McKeague went on to hold that the accommodation offered by the union was unreasonable and discriminatory. [Thanks to Jonathan Adler via Joe Slater for the lead.]

Under Pressure, National Mock Trial Group Agrees To Accommodate Sabbath Needs

Under intense pressure, the National High School Mock Trial Competition yesterday, at the last minute, agreed to a compromise that will accommodate the Sabbath observance needs of the Jewish team members from Maimonides High School of Brookline, Massachusetts in this week end's tournament. (See prior posting.) JTA reported that the team will be permitted to start the competition Thursday afternoon and, if Maimonides reaches the finals, the start of the championship round will be delayed from 5 p.m. until 9:30 p.m., after sundown, on Saturday. Maimonides had originally wanted all of its rounds scheduled on Thursday and Friday-- a change that organizers said was unreasonable.

This year's competition is being held in Atlanta, hosted by the Georgia State Bar. ADL yesterday said the schedule change came only after Judge Doris Downs, Chief Judge of Fulton County (GA) Superior Courts, said the competition could not use Fulton County courtrooms if all schools could not fully participate. Also, ADL Southeast Regional Board Chair Elizabeth Price tendered her resignation as a member of the Georgia State Bar's board of governors when the Association refused to support accommodation for the Jewish school. Adding even further pressure, according to a release from the Orthodox Union, were questions raised by Georgia Governor Sonny Purdue's office and questions raised by the Civil Rights Division of the US Department of Justice as to whether Georgia State Courts could receive federal grant funds if they discriminated. Today's Fulton County (GA) Record also has coverage of Judge Downs' role in obtaining the changed schedule.

UPDATE: Here is the competition organizers' side of the dispute in a press release from NHSMTC. It says that the Maimonides team had earlier accepted a compromise under wihich it would merely not participate in Saturday rounds. The organizers say they also provided other accommodations involving more hotel space and dietary considerations.

Settlement In Case Challenging NC Park Speech Rule

Liberty Counsel announced yesterday that a settlement has been reached with the North Carolina Division of Parks and Recreation in a suit challenging the constitutionality a rule that requires a permit for any meeting, exhibition, ceremony, or speech in a state park. The suit was filed after 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. (See prior posting.) Under the terms of the settlement, signed a day before a scheduled hearing on an injunction, the state will institute a formal rule making process to adopt new rule whose terms have been negotiated with Liberty Counsel. The state will also pay attorney’s fees and costs.

Oklahoma Legislature Authorizes 10 Commandments At Capitol

AP reported yesterday that the Oklahoma House of Representatives, by a vote of 83-2, has passed HB 1330, the Ten Commandments Monument Display Act [full text, Word doc]. The bill, previously passed by the Senate, now goes to Gov. Brad Henry for his signature. It provides in part:

The State Capitol Preservation Commission ... is hereby authorized to ... arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments. The ... monument shall use the same words used on the monument at issue in Van Orden v. Perry, that the United States Supreme Court ruled constitutional. This monument shall be designed, constructed, and placed on the Capitol grounds by private entities at no expense to the State of Oklahoma....

In the event that the legality or constitutionality of the Ten Commandments monument is challenged in a court of law, the Oklahoma Attorney General or Liberty Legal Institute is hereby authorized to prepare and present a legal defense of the monument.

The placement of this monument shall not be construed to mean that the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.

The family of Rep. Mike Ritze, sponsor of the bill, will pay the $10,000 cost of the monument.

European Parliament Recommends Directive Protecting Kosher Slaughter

According to a European Parliament press release, yesterday the European Parliament approved a new directive on protection of animals at the time of slaughter, with an exemption for slaughter according to religious ritual. (Full text of resolution, Word doc, scroll to pg. 114). The release explains:

MEPs approve the principle that animals must be slaughtered using only methods that ensure death instantly or after stunning, except in the case of religious ritual, for which they called for the current blanket exemption to be preserved rather than allowing for exemptions to be decided at national level.

EJP reports that the proposal now goes for a vote by the EU Council of Ministers, scheduled for next month. Currently kosher slaughtering of animals is banned in Sweden, Norway, Finland, Latvia, Estonia and Lithuania, while Switzerland permits it only for poultry. The European Jewish community is concerned that the impact of the bill could be undercut because a vote is scheduled next month by the Council of Ministers on whether even animals killed in religious rites are required to be stunned before slaughter. Kosher slaughtering does not permit stunning.

Parents Sue For Records of Lesbian Minister's Talk At High School

Pacific Justice Institute announced yesterday that it had filed suit on behalf of more than 20 California parents against the Castro Valley (CA) Unified School District seeking to force the school board to comply with a public records request. At issue is an attempt by parents to obtain all records relating to a presentation made in Castro Valley High School math and science classes by a lesbian minister. Students say the minister spoke about her lesbian wedding and and other events in a presentation titled "Out for Good."

President Signs National Day of Prayer Proclamation

Today President Obama signed a Proclamation (full text) declaring May 7, 2009 as a National Day of Prayer, as required by Public Law 100-307 (36 USC Sec. 119). The Proclamation reads in part:

Throughout our Nation's history, Americans have come together in moments of great challenge and uncertainty to humble themselves in prayer.... It is in that spirit of unity and reflection that we once again designate the first Thursday in May as the National Day of Prayer.

The White House released a photo of the President signing the Proclamation, with Joshua DuBois, Director of the White House Office for Faith-Based and Neighborhood Partnerships, looking on.

At Tuesday's White House Press Briefing (full text), this exchange between reporters and Press Secretary Robert Gibbs took place:

Q: Robert, can I ask about Thursday? The National Day of Prayer -- the President, as I understand it, is going to sign a proclamation but there's not going to be a public ceremony, as the Bush administration did. Why the difference in approach? Does the President have a different feeling about this event than his predecessor?

MR. GIBBS: No, I mentioned, I think when I was asked about this last week, that prayer is something that the President does every day. I think, given some of the issues that you all have denoted today, it might be a healthy thing. But we're doing a proclamation, which I know that many administrations in the past have done.

Q: The previous administration had a ceremony with prayers and speeches and such. Does he think -- the current President think that that was politicized in some fashion?

MR. GIBBS: No, I'm not going to get into that. Again, I think the President understands, in his own life and in his family's life, the role that prayer plays. And I would denote that administrations prior to the past one did proclamations. That's the way the President will publicly observe National Prayer Day. But as I said, privately he'll pray as he does every day.

Q: Is he going to pray at the church that he calls his own?

MR. GIBBS: I'm sorry --

Q: Will he soon pray in a church that he calls his own?

MR. GIBBS: He may. Amen. (Laughter.)

[See prior related posting.]