Visiting Sikh Preachers In Austria Shot Over Disagreement With Sermon

In Vienna, Austria on Sunday, a Sikh Temple attended mainly by lower-caste Sikhs who are folowers of the Dera Sach Khand sect was the scene of attacks on two clergymen visiting from India. Sant Niranjan Dass, the Dera head, survived the attack after surgery, but his second in command, Sant Ramanand, died from gunshot wounds. Apparently a sermon being delivered by one of the visiting preachers set off the attacks by higher-caste Sikhs, armed with knives and a handgun, who said the preachers were insulting the Guru Granth Sahib, Sikhism's holy book. Sikhs attending worship services attempted to fight back, even using microphone stands and a frying pan. 16 people were injured. AP reports that 6 suspects are in custody, including four who are asylum seekers who have lived in Austria for some time. In response to the shootings, violence broke out in the Indian town Jalandhar where many followers of the Dera Sach Khand sect of Sikhs-- mainly "untouchables," or Dalits-- live. Yesterday's Times of India reports on the violence in India.

New York's Hate Crime Provisions Upheld In Recently Released Opinion

In People v. Ivanov, (NY Sup. Ct., Sept. 12, 2008)-- decided several months ago but posted online for the first time last Friday-- a New York trial court upheld New York's hate crime statute. The statute enhances applicable penalties when a crime is motivated by bias. Defendant was charged with spray painting and etching swastikas and other anti-Semitic graffiti on buildings (including two synagogues), on automobiles and on sidewalks in an area of Brooklyn Heights near his home. He also placed anti-Semitic flyers on the windshield of parked cars in the area. The court rejected defendant's claim that in order to violate the hate crime law, New York Penal Code. Sec. 485.05, and the related Aggravated Harassment law, New York Penal Law Sec. 240.31, the victims needed to have been selected because of their religion. The court held that as long as a religious, racial, gender, etc. group is targeted, the victim need not necessarily be a member of that class. The court also rejected defendant's constitutional challenges, concluding that the provisions are not vague as applied to this defendant, nor did they violate his free speech rights.

Scientology and Its Leaders In France Go On Trial For Fraud

In France yesterday, the Church of Scientology and six of its leaders went on trial on charges of organized fraud and of illegally prescribing drugs. The Guardian and the Telegraph yesterday both had accounts of the proceedings that target the Church's AGES-Celebrity Centre, and its Freedom Space bookshop in Paris. The case began with a complaint filed over ten years ago by a French woman, Aude-Claire Malton, who claims that at a time she was "psychologically fragile," she was pressured into spending her life savings of 21,000 Euros on life healing lessons, books, an "electrometer" and other products including "purification packs" and vitamins. Three other individuals had also filed complaints against Scientology, but they have withdrawn them after settling out of court.

The indictment by the investigating magistrate charges Scientology is a commercial business that runs a deliberately manipulative system which exploits vulnerable people. Scientology's lawyer says: "It's a trial for heresy: this could only happen in France..." If convicted, the individual defendants each face a possible 1 million Euro fine 10 years in prison. The Celebrity Centre and bookshop could be fined $5 million Euros and closed down in France.

Memorial Day Proclaimed As Day of Prayer For Veterans and Peace

Today is Memorial Day. 36 USC 116 also calls on the President to issue an annual proclamation:

(1) calling on the people of the United States to observe Memorial Day by praying, according to their individual religious faith, for permanent peace;
(2) designating a period of time on Memorial Day during which the people may unite in prayer for a permanent peace;
(3) calling on the people of the United States to unite in prayer at that time; and
(4) calling on the media to join in observing Memorial Day and the period of prayer.

On Friday, President Obama issued a Proclamation, "Prayer for Peace, Memorial Day, 2009" (full text), providing in part:

As we remember the selfless service of our fallen heroes, we pray for God's grace upon them. We also pray for all of our military personnel and veterans, their families, and all those who have lost loved ones in the defense of our freedom and safety....

I ... do hereby proclaim Memorial Day, May 25, 2009, as a day of prayer for permanent peace, and I designate the hour beginning in each locality at 11:00 a.m. of that day as a time to unite in prayer.

Episcopal Church and Break-Away Diocese Litigate Over Retainer Paid To Counsel

As previously reported, the break-away San Joaquin, California Diocese of the Episcopal Church appears poised to lose in its attempt to keep Diocesan property after its affiliation with the more conservative Province of the Southern Cone. A collateral aspect of the property lawsuit filed against the Diocese in 2008 by the Episcopal Church USA is a dispute over use of Diocese funds to pay attorneys' fees in the litigation. Virtue Online on Saturday reported in detail on a state trial court's resolution of the dispute.

Back in 2007, the Diocesan Council paid $500,000 as an advance on legal fees to its law firm, Wild, Carter & Tipton of Fresno, California, in anticipation of litigation that might be filed over property ownership. After the break-off, ECUSA appointed new officials to continue as the Episcopal diocese. They sued the law firm for declaratory relief and to recover the advanced attorneys' fees, invoking several theories of wrongful transfer. The court dismissed most of them, invoking the rule that an agent cannot conspire with its own principal. The court concluded, however, that the claim the transfer was a fraudulent conveyance could succeed, but only if ECUSA is able to prove its allegation that the transfer of funds was undertaken with the intent to injure ECUSA and that the Diocese did not receive reasonably equivalent value in exchange for the fund transfer.

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, The Internationalization of Church-State Issues, (Church and State Issues in America Today, 3 Volumes, Ann W. Duncan & Steven L. Jones, eds., Praeger Publishers, 2008).
• Eric Segall, Mired in the Marsh: Legislative Prayers, Moments of Silence, and the Establishment Clause, (Forthcoming, University of Miami Law Review, 2009).
• Zachary R. Calo, 'The New Internationals': Human Rights and American Evangelicalism, (Is the Good Book Enough?, David K. Ryden, ed, Forthcoming).
• Jeffrey R. Baker, Whom Would Jesus Cover? A Biblical, Ethical Lens for the Contemporary American Health Care Debate, (Journal of Law & Health, Vol. 23, Fall 2009).

From SmartCILP:

• Darshan Brach, Logic for the Magic of Mindful Negotiation, 24 Negotiation Journal 25-44 (2008).
• Samuel J. Levine, Louis Marshall, Julius Henry Cohen, Benjamin Cardozo, and the New York Emergency Rent Laws of 1920: A Case Study in the Role of Jewish Lawyers and Jewish Law in Early Twentieth Century Public Interest Litigation, 33 Journal of the Legal Profession 1-29 (2008).
• Robert Steinbuch, Kidneys, Cash, and Kashrut: A Legal, Economic, and Religious Analysis of Selling Kidneys, 45 Houston Law Review 1529-1607 (2009).
• Adrien Katherine Wing, International Law, Secularism, and the Islamic World, 24 American University International Law Review 407-428 (2009).

Somalia Moves Toward Sufi vs. Shabab Warfare

A New York Times report this morning from Somalia says that the African country is moving from clan warfare to religious warfare. In the central part of the country, moderate Sufi militias are winning against the conservative extremist Shabab movement, even though the Shabab is increasingly taking over the capital of Mogadishu on the country's coast.

Court Upholds Montana Law School's Refusal To Fund Christian Legal Society

In Christian Legal Society v. Eck, 2009 U.S. Dist. LEXIS 42980 (D MT, May 19, 2009), a Montana federal district court accepted a magistrate's recommendations and upheld the University of Montana Law School's non-discrimination and open-membership policies for recognized student groups. The court concluded that Christian Legal Society's requirements for voting membership violate those policies and thus disqualify CLS from receiving Student Bar Association funding. CLS requires that students, in order to be voting members, sign a Statement of Faith. It also treats "unrepentant participation in or advocacy of a sexually immoral lifestyle" as inconsistent with the required Statement. The court held that the law school's policies are viewpoint neutral and were not intended to single out or limit CLS' rights to free expression. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Marsh v. Florida Department of Corrections, (11th Cir., May 18, 2009), the U.S. 11th Circuit Court of Appeals rejected a free exercise challenge to a policy of the Florida Civil Commitment Center that bars plaintiff from practicing Nisei GoJu-Ryu Karate, a form of martial arts practiced by Zen Buddhists for spiritual enlightenment. The court concluded it did not have to decide whether Turner v. Safley applies to civilly committed detainees as well as those committed criminally. It concluded that even were it to apply the constitutional protections granted to non-detained individuals, the institution's martial arts ban would be upheld as a neutral and generally applicable rule.

In Florer v. Johnson, 2009 U.S. Dist. LEXIS 41960 (WD WA, May 4, 2009), a Washington federal magistrate judge granted plaintiff leave to amend his complaint to allege that that the 2004, 2006 and 2008 kosher and mainline dietary menus offered by the Washington Department of Corrections were nutritionally and religiously inadequate. It rejected defendants' claims that the amended complaints were barred by res judicata.

In Trotter v. Schwarzennegger, 2009 U.S. Dist. LEXIS 41554 (ED CA, May 5, 2009), a California federal magistrate judge dismissed a prisoner's complaint alleging a lack of religious programs at his prison.

Objections To Religious References At Trial of Juvenile Not Preserved For Appeal

In In re A.D., (TX App., May 15, 2009), a 14-year old Mennonite boy challenged the 10-year sentence imposed on him for driving while intoxicated, thereby causing the death of a passenger in his SUV. The boy claims that repeated references at trial to the nature of the religious community in which he and his family reside violated his equal protection rights. He claimed that the jury assessed punishment at least in part based on the beliefs and practices of his Mennonite community. However the a Texas state appellate court concluded that failure to object to the statements at trial forfeited the right to raise them on appeal. Nevertheless, the court reversed and remanded the sentence on other grounds, finding that no evidence was presented to show that efforts were made, as required by Texas law, to prevent removing the juvenile from his home.

Wisconsin Jury Convicts Mother Who Relied on Faith Healing of Homicide

The Chicago Tribune and the Wausau Daily Herald report that yesterday in Wausau, Wisconsin, a state court jury found Leilani Neumann guilty of second-degree reckless homicide in the death of her 11-year old daughter, Kara, whose diabetes went untreated. Instead the girl's parents, relatives and friends prayed for her as her health deteriorated and she finally went into a coma. In closing arguments, the prosecutor described Neumann as a religious zealot who let her daughter die as a test of faith. Defense counsel responded that Neumann did not realize her daughter was so ill and did all she could consistent with her family's belief in faith-healing. Neumann faces a possible sentence of 25 years in prison, and her attorney says an appeal is planned based on the trial court's refusal to allow a faith-healing expert to testify at trial. Neumann's husband, Dale, will be tried separately on similar charges in July.

Connecticut High Court Orders Release of Documents In Clergy Abuse Cases

In Rosado v. Bridgeport Roman Catholic Diocesan Corp., (Ct. Sup. Ct., May 22, 2009, official release date June 2), the Connecticut Supreme Court, over the dissent of Justice Sullivan, granted the requests of 4 newspapers and released some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. According to a report on the case by The Day (New London, CT), the documents have been under seal since 2001 when the Diocese of Bridgeport settled the cases. The court held that all documents filed with the court that it could reasonably rely on in support of its adjudicatory function are presumptively open to the public. (Under this rule, only 15 documents in the cases could be kept sealed.) The court also held that the trial court judge properly refused to recuse himself in the case seeking release of the documents. (See prior related posting.)

Defendant Sentenced To 10 Years For Pot Farm; Religious Defense Found Insincere

Last Monday in a northern California federal courtroom, trial onlookers shouted at federal district judge Marilyn Hall Patel and the federal prosecutor after Patel sentenced defendant Charles "Eddy" Lepp to the mandatory ten years in prison on charges of running a vast marijuana farm known as "Eddie's Medicinal Gardens and Ministry of the Rastafari." According to Law.com, Judge Patel questioned the sincerity of Lepp's attempted religious defense to the charges, saying he did not display much knowledge about Rastafarianism. The judge, who said she thought the mandatory minimum was excessive but had no authority to modify it, said she would entertain a motion to modify Lepp's sentence if Congress changes the law while he is still in prison.

In Greece, Young Muslims Violently Protest Ripping of Quran By Policeman

In Athens, Greece, some 1,500 young Muslims marched to the Parliament building yesterday to protest charges that a police officer tore up a copy of the Qur'an while checking an Iraqi immigrant's identity papers. Today's Haaretz reports that as the crowd shrunk to about 300, violent clashes with police broke out and 46 protesters were arrested. Police released photos of the torn Qur'an and said they will investigate the charges, but emphasized that the isolated incident did not justify the violent reaction.

Inspector General Reports on 2004 IRS Exams of Non-Profit Political Activities

The Treasury Department has posted online a May 12 audit report by the Treasury Inspector General for Tax Administration titled Statistical Profile of Alleged Political Intervention by Tax-Exempt Organizations in the 2004 Election Season. The audit, undertaken at the request of the Senate Finance Committee, examines the Internal Revenue Service's performance in its 2004 initiative to promote compliance with the prohibition against political campaign intervention by non-profits. The report finds:

For the 2004 Initiative, the IRS opened 110 examinations.... Examinations most often were initiated after referrals were received from sources external to the IRS and were almost evenly distributed between churches and charities. The examinations mainly concerned tax-exempt organizations that had allegedly been involved in a single instance of potentially prohibited political intervention and involved issues/campaigns at the national level slightly more than at the State and local level. In addition, examinations involved a wide array of issues, such as distribution of printed and electronic information, as well as verbal statements and direct political contributions....

As of November 2008, the IRS' inventory system showed that the IRS had substantiated prohibited political activity in 76 (71 percent) of the 107 examinations it had completed. While reviewing case information, we found that this number was overstated. Based on our review of case files, the IRS incorrectly coded 14 cases as involving violations of the political intervention prohibition when no violations occurred. While the data still shows that a majority of examinations resulted in the IRS determining that tax-exempt organizations had violated the prohibition, it is important that this information be accurate because it is reported to external stakeholders. We determined that the incorrect coding was due to confusion over how to classify case results on the inventory system.

Liberty University Revokes Recognition of College Democrats

The Washington Post today reports that Liberty University, the conservative Christian school located in Lynchburg, Virginia, has withdrawn recognition of Liberty University College Democrats as a student organization. The move comes as the University adopts a new policy governing student organizations. An e-mail sent to the group from the University's vice-president for student affairs says: "We are unable to lend support to a club whose parent organization stands against the moral principles held by Liberty University." (Full text of new policy and of e-mail revoking College Democrats' recognition). Maria Childress, the club's adviser, says she is trying to appeal the decision to the school's chancellor, Jerry Falwell Jr. The Lynchburg (VA) News-Advance reports on a statement Falwell made today regarding the suspension:

"That club still has the right to exist," Falwell said, although it cannot use the university’s name in its activities. "They still can meet on campus," in certain rooms, he said. "There is absolutely no animosity at all toward any of these kids. They are good, Christian kids who sit with me at ball games. I just hope they find a pro-life family organization to affiliate with so they can be endorsed by Liberty again."

Virginia Governor Timothy Kaine issued a statement on Democratic national Committee letterhead urging the University to reverse its decision. [Thanks to both Don Byrd and Bob Ritter for the lead.]

Senate Passes Resolution Remembering M.S. St. Louis Anniversary

This week the U.S. Senate passed S. Res. 111, "recognizing June 6, 2009, as the 70th anniversary of the tragic date when the M.S. St. Louis, a ship carrying Jewish refugees from Nazi Germany, returned to Europe after its passengers were refused admittance to the United States." The resolution passed May 19 by Unanimous Consent.

California Law Protects Closed Church From Landmarking

In California-Nevada Annual Conference of the United Methodist Church v. City and County of San Francisco, (CA Dist. 1 App., May 20, 2009), a California state appellate court held that the San Francisco Board of Supervisors exceeded its jurisdiction in adopting a resolution beginning the procedure to designate First St. John‟s United Methodist Church as a landmark. The court held that state law permitting religiously affiliated organizations to exempt their noncommercial property from landmarking regulation applies even though the building is no longer being used as a place of worship. The court concluded that the purpose of the state law exclusion was to allow religious institutions to sell their dilapidated churches for a profit. BCN reported on the decision yesterday.

Court Refuses To Decide RLUIPA Claim On Ripeness Grounds

Congregation Etz Chaim v. City of Los Angeles, 2009 U.S. Dist. LEXIS 42345 (CD CA, May 5, 2009), is the latest decision in a dispute that began in 1996 over whether the city of Los Angeles would issue a conditional use permit to members of a synagogue to allow them to conduct religious services at a house in Los Angeles. A 2001 settlement of a RLUIPA lawsuit filed by the congregation was overturned by the 9th Circuit in 2007 on the ground that the settlement process cannot be used to evade state law requirements for notice and a hearing for the affected community before a conditional use permit is granted. (See prior posting.) In May 2008 the Congregation filed a new conditional use permit application with the city, but also asked the court to move ahead with a decision on its original RLUIPA claim. The court refused to do so on ripeness grounds, holding:

Over ten years have passed since the City denied plaintiff's CUP application, and the Congregation has recently filed a second application, which the City is currently considering. This second CUP application presents the first opportunity for the City to consider the Congregation's request in light of RLUIPA..... [G]ranting of the second CUP application would moot the instant action. Furthermore, it does not appear that the Congregation will be immediately harmed by the Court's decision to dismiss the instant action on ripeness grounds. The City has not taken any action to date to enforce the original denial of the CUP.... [T]he threat of hardship to the Congregation remains speculative.

Republicans Delay Committee Vote On 7th Circuit Nominee Over His Establishment Clause Decisions

At the request of Republican members of the Committee, the Senate Judiciary Committee postponed a vote that was to have taken place yesterday on the nomination of Indiana district judge David Hamilton to serve on the U.S. Seventh Circuit Court of Appeals. According to yesterday's Indianapolis Star, Alabama Senator Jeff Sessions said that Republicans needed more time to review Hamilton's record on the district court. Sessions pointed particularly to Hamilton's rulings holding that the opening of sessions of the Indiana House of Representatives with sectarian prayer was a violation of the Establishment Clause. (See prior posting.) Subsequently the decision was reversed on standing grounds by the 7th Circuit. Hamilton testified at his nomination hearings that the law on taxpayer standing changed between his decision and the reversal by the 7th Circuit.