Recent Articles of Interest

From SSRN:

• Mohammad Fadel, Political Liberalism, Islamic Family Law and Family Law Pluralism: Lessons from New York on Family Law Arbitration, (in Marriage and Divorce in a Multicultural Context: Reconsidering the Boundaries of Civil Law and Religion, Joel A. Nichols, ed., Cambridge University Press, Forthcoming 2010).
• Marc R. Poirier, Name Calling: Identifying Stigma and the 'Civil Union'/'Marriage' Distinction,(Connecticut Law Review, Vol. 41, 2009).

From SmartCILP:

• Yehiel S. Kaplan, A Father's Consent to the Marriage of His Minor Daughter: Feminism and Multiculturalism in Jewish Law, 18 Southern California Review of Law & Social Justice 393-460 (2009).
• Liaquat Ali Khan, Jurodynamics of Islamic Law, 61 Rutgers Law Review 231-293 (2009).
• Mark Strasser, The Coercion Test: On Prayer, Offense, and Doctrinal Inculcation, 53 St. Louis University Law Journal 417-483 (2009).

Indian Court Says Church May Not Be Required To Obtain Permit To Hold Worship Services

Zee News yesterday reported on a decision by the Madras High Court in India holding that district officials could not require a church to obtain a permit before conducting prayers inside its own building. The court ordered the Kanyakumari Revenue Divisional Officer not to interfere with prayers inside church premises, but told the church it should seek permission if it planned to take a procession outside of its building.

Recent Prisoner Free Exercise Cases

In Chavis v. Goord, (2d Cir., June 25, 2009), the U.S. 2nd Circuit Court of Appeals dismissed an inmate's claim that his free exercise rights were infringed when he was required to work on Sundays. The court found both a lack of exhaustion of administrative remedies and failure to allege any specific burden on religious beliefs.

In Rowe v. Bell, 2009 U.S. Dist. LEXIS 52516 (ND IN, June 19, 2009), an Indiana federal district court refused to dismiss an inmate’s claim that practices which prevent him from attending or from viewing (on television) religious services, from fellowship with other inmates, and from regularly reading religious books violate RLUIPA.

In Bonnell v. Burnett, 2009 U.S. Dist. LEXIS 27586 (ED MI, March 31, 2009), a Michigan federal district court concluded that a triable question of fact existed as to whether an inmate's professed need for a kosher diet was based on a sincerely held religious belief.

Russia Tells Court It Lacks Jurisdiction Over Chabad's Claim Against It

Last year, the D.C. Circuit Court of Appeals held that the parent organization for the Orthodox Jewish Chabad movement can pursue its claims against the Russian government to recover two historic collections of Jewish religious books and manuscripts that were seized in violation of international law. (See prior posting.) In January, the U.S. District Court in Washington, D.C. ordered Russia to preserve the documents after Chabad feared they were not being properly cared for and might be sold on the black market. AP reports that in a filing on Friday, the Russian government told the court that in order to protect its sovereignty, it will not participate in the U.S. proceedings. Russia says that the U.S. should use diplomatic channels to deal with any dispute, arguing that U.S. courts lack authority to enter orders with respect to property owned by the Russian government.

Canadian Supreme Court Says Law Imposing Medical Treatment Over Minor's Objection Is Constitutional

In a 6-1 decision Thursday, Canada’s Supreme Court upheld Manitoba’s law that allows a court to order medical treatment for a child under 16 that it considers to be in the child’s best interest, despite the child’s religious objections. In A.C. v. Director of Child and Family Services, (Can. Sup. Ct., June 26, 2009), a case involving a 14-year old Jehovah's Witness who objected to a blood transfusion, Justice LeBel’s opinion for 4 justices concluded that the statute creates a proper constitutional balance between autonomy and the government's interest in protecting a vulnerable child from harm. The opinion held that the "best interest" standard mandated by the law involves a sliding scale of scrutiny, with the child's views becoming more important as the child becomes more mature. A child's religious heritage is one of the factors the court must examine in determining the child's best interest.

A concurring opinion by Chief Justice McLachlin and Justice Rothstein concluded that while legislative authorization of treatment over a minor's sincere religious objections amounts to an infringement of religious freedom under the Canadian Charter of Rights and Freedoms, it is a justifiable infringement. "[T]he objective of ensuring the health and safety and of preserving the lives of vulnerable young people children is pressing and substantial, and the means chosen — giving discretion to the court to order treatment after a consideration of all relevant circumstances — is a proportionate limit on the right."

A dissent by Justice Binnie argued that in the case of a mature minor under 16, as here, rights of autonomy and religious freedom are violated by an irrebuttable presumption that a person under 16 lacks the capacity to make treatment decisions. Reuters on Friday reported on the decision.

State Department Appoints Special Representative To Muslim Communities

The U.S. State Department on Friday announced the appointment of Farah Pandith to head the new Office of the United States Special Representative to Muslim Communities. Pandith, a Muslim, was born in India and immigrated to the U.S. with her parents. Previously she served on the White House National Security Council where she was involved with outreach to Muslims and combating extremism, and then worked in the State Department on issues of Muslim engagement in the European and Eurasian region. According to the Washington Post, the new appointment was announced on Tuesday in an internal State Department e-mail, and was announced more widely after a reporter asked about it. The Economic Times of India reports that Pandith’s extended family in Kashmir is very proud of her new position.

Court Finds No Jurisidiction Over Defamation Claim By Priest

In Stepek v. Doe, (IL App., June 10, 2009), an Illinois Appellate Court held that civil courts have no jurisdiction over a suit brought by a Catholic priest alleging defamation and intentional infliction of emotional distress. The allegedly false statements were made only to Chicago Archdiocese personnel in connection with the Church's formal investigation of alleged sexual abuse by plaintiff. The court explained:

While it is possible that resolution of plaintiff’s claims would not require any interpretation of the Catholic Church’s doctrine, resolving this dispute would involve the secular court interfering with the Church’s internal disciplinary proceedings where plaintiff’s claims are based on the Does’ statements, which were provided solely within the Church’s proceedings.

(See prior related posting.)

Court Says School Board Invocations Governed By "Legislative Prayer" Standards

In John Doe # 2 v. Tangipahoa Parish School Board, 2009 U.S. Dist. LEXIS 53189 (ED LA, June 24, 2009), a Louisiana federal district court made important rulings of law in a challenge to a school-board's invocation policy, but denied both sides' motions for summary judgement. The court ordered a trial to determine whether the Tangipahoa Parish School Board's current policy of opening its meetings with prayer violates the Establishment Clause. Tangipahoa Parish has been involved in extensive litigation over school prayer for a number of years.

In this opinion, the court held that plaintiffs, attendees at school board meetings, have standing to bring the lawsuit. Second it concluded that the question of the propriety of the School Board's invocation policy is governed by the legislative prayer principles of Marsh v. Chambers, rather than the school-classroom prayer restrictions imposed by Lemon v. Kurtzman (despite the fact that students occasionally attend Board meetings). This still left open, in the court's view, the question of whether the School Board's policy "exploits the prayer opportunity to proselytize or advance Christianity, or to disparage other faiths or beliefs" and "whether the School Board has violated its own speaker selection policy by reaching outside the Parish to Christian clergy but not other clergy of other faiths." AP yesterday reported on the decision.

Trial Court Abused Its Discretion In Scope of Relief In Church Dispute

First Assembly of God Christian Center of Pittsburg, California v. Bridgeway, (CA Ct. App., June 24, 2009) involves, in the court's words, "a secular dispute dressed as a schism." At issue is the validity of the election of a board of directors and of Tim Combs as senior pastor of the church, here challenged through a summary proceeding under the non-profit provisions of California Corporations Code Sec. 9418. The Church operated on two campuses, and Combs' supporters wanted to separate one of the campuses and operate it under Combs' leadership. According to the court, "Counsel for both sides agreed that First Assembly was a 'sovereign' church, but disagreed as to whether the Board or the church members were empowered to ultimately resolve their dispute." The trial court had ordered that a new membership meeting be held and had issued seven mandates to stabilize the situation at the church pending the outcome of the meeting-- to be presided over by a court-appointed special master. On appeal, the Court of Appeals, in a 54-page opinion, held that:

most of the issues First Assembly raises do not implicate ecclesiastical matters and can be resolved by resort to neutral principles of law and the plain reading of First Assembly’s governing documents. We nonetheless conclude that the trial court abused its discretion in issuing the seven mandates First Assembly challenges, and vacate those portions of the court's order and remand this matter to the trial court for further proceedings consistent with this opinion.

British Appeals Court Says Jewish School's Admission Criteria Are Racial, Not Religious

In an important decision yesterday, the Court of Appeal of England and Wales held that an Orthodox Jewish school's admissions criterion that favors only children considered Jewish by the Office of the Chief Rabbi amounts to racial, rather than religious, discrimination. Faith schools receiving public funding are exempted from legal prohibitions on religious discrimination, but not racial discrimination. The school's rule thus was found to violate the Race Relations Act 1976.

E.R. (On the Application of E) v. The Governing Body of JFS, (Ct. App., June 25, 2009), involved a challenge by parents of a boy who was not admitted to the Jewish Free School because it refused to recognize the validity of his mother's conversion to Judaism conducted in a Progressive, rather than an Orthodox, synagogue. The court wrote:

The OCR considers that there are two essential ways in which a person may be or become a Jew. One is descent from parents whose own identity as Jews can be established or inferred. The other is by conversion in accordance with the tenets of Orthodox Judaism. ....

One of the great evils against which the successive Race Relations Acts have been directed is the evil of anti-Semitism. None of the parties to these proceedings wants or can afford to put up a case which would result in discrimination against Jews not being discrimination on racial grounds....

M was refused admission to JFS because his mother, and therefore he, was not regarded as Jewish.... There are of course theological reasons why M is not regarded as Jewish, but they are not the ground of non-admission: they are the motive for adopting it.....

it appears to us clear (a) that Jews constitute a racial group defined principally by ethnic origin and additionally by conversion, and (b) that to discriminate against a person on the ground that he or someone else either is or is not Jewish is therefore to discriminate against him on racial grounds. The motive for the discrimination, whether benign or malign, theological or supremacist, makes it no less and no more unlawful. Nor does the factuality of the ground. If for theological reasons a fully subscribed Christian faith school refused to admit a child on the ground that, albeit practising Christians, the child's family were of Jewish origin, it is hard to see what answer there could be to a claim for race discrimination.

The refusal of JFS to admit M was accordingly, in our judgment, less favourable treatment of him on racial grounds. This does not mean ... that no Jewish faith school can ever give preference to Jewish children. It means that, as one would expect, eligibility must depend on faith, however defined, and not on ethnicity.

Reporting on the decision, Politics.co says that the school will seek leave to appeal. British Chief Rabbi Sir Jonathan Sacks criticized the ruling, saying that the school's criteria have "nothing to do with race and everything to do with religion."

Senate Judiciary Committe Holds Hearing On Hate Crimes Bill

Yesterday, the U.S. Senate Judiciary Committee held hearings on the Matthew Shepard Hate Crimes Prevention Act of 2009 (S. 909). The Justice Department has released a transcript of Attorney General Eric Holder's testimony favoring the legislation. Transcripts of statements by committee members and other witnesses are available from the Judicary Committee's website. Among these witnesses was Dr. Mark Achtemeier, Associate Professor of Systematic Theology and Ethics, University of Dubuque Theological Seminary. He said in part:

Now some have worried that in passing this legislation we would be declaring illegal the considered religious opinions of many Americans who believe that homosexual behavior is contrary to the will of God. I will say to you that my own Presbyterian Church is passionately committed to preserving the right of all people to believe and follow their religious convictions freely without the interference of the Federal Government. If I believed for one minute that the effect of this bill was to curtail legitimate religious expression or observance, I would not touch it with a ten-foot pole.

But that is not the effect of this bill! Section 10 contains explicit language stating that "nothing in this Act shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities." Those constitutional protections are effective. We have had federal hate crime legislation on the books for forty years in this country.... But not once in all of these forty years... have I ever seen someone brought up on charges solely because of something they said.

The Matthew Shepard Act targets not speech or thought or religious expression, but violent crime. We are talking here about physical assault on the person of another solely because of who they are. Violent attacks on another person are not a legitimate expression of anyone's religious belief, Christian or otherwise. There is nothing in this legislation for law-abiding Christians to fear.

German Government Adopts Suggestions For Muslim Accommodation In Schools

Reuters yesterday reported that the German government has reached agreement at the German Islam Conference with the country's largest Muslim community on recommendations for accommodating Muslim religious practices in public schools. Implementation is up to each of the German states. The recommendations include accommodating Muslim holy day observances, offering sex-segregated swim lessons and changing rooms, and furnishing parents more information about what is taught in sex education classes.

In Dispute With Defecting Church, Assemblies of God Held To Be Hierarchical

In Leach v. Johnson, (MI Ct. App., June 18, 2009), a Michigan Court of Appeals affirmed a trial court's decision holding that the Assemblies of God is an hierarchical religious organization and its decision to assert control over the property of the break-away Gospel Lighthouse Church in Warren, Michigan is binding upon the courts. The court concluded: "because Gospel Lighthouse subordinated itself to the authority of Assemblies of God, and because the Michigan District had ultimate control over Gospel Lighthouse's doctrine, status, and leadership, the trial court did not err when it determined that Assemblies of God is a hierarchical organization, thus precluding subject matter jurisdiction." [Thanks to Brian D. Wassom for the lead.]

Report Says FBI Will Use ISNA As Contact Point With US Muslim Community

IPT News yesterday reported that the FBI has decided to rely upon the Islamic Society of North America (ISNA) as its official point of contact with the American Muslim community. The move comes after the FBI earlier this year broke its ties with the Council on American Islamic Relations (CAIR) that had previously been its contact. (See prior posting.) The IPT News report objects to the FBI decision, arguing that ISNA has ties to the Muslim Brotherhood.

Court Says Revenue Bonds For Religious College OK Under Establishment Clause

In Gillam v. Harding University, (ED AK, June 24, 2009), an Arkansas federal district court held that the city of Searcy, Arkansas did not violate the Establishment Clause when it issued tax-exempt revenue bonds to finance construction of facilities at Harding University. The University is affiliated with the Churches of Christ. The bonds were issued under the Arkansas Public Facilities Board Act which allows the city to set up a special board as the bond issuer. The court concluded that the bond issuance did not have the primary purpose or effect of advancing religion, nor did it create excessive entanglement. Harding did not use the bond proceeds to finance facilities used for religious instruction or as a place of religious worship. The court said that it is irrelevant here whether or not Harding University is a pervasively sectarian institution. Finally the court also rejected challenges claiming the bond issuance violated Art. 12, Sec. 5 of the Arkansas Constitution that ban cities from obtaining money for any private corporation, and Amendment 65 to the state Constitution that sets out certain limits on the use of revenue bonds. Arkansas News Service yesterday reported on the decision.

Gov. Sanford's Press Conference and Wife's Response Contain Extensive Religious References

As a posting today at Get Religion points out, South Carolina Gov. Mark Sanford's press conference yesterday confessing to an extra-marital affair (transcript) and his wife's statement reacting to it (full text) include extensive religious references. From Gov. Sanford's long statement to the press:

I am here because if you were to look at God's laws, there are in every instance designed to protect people from themselves. I think that that is the bottom line with God's law -- that it's not a moral, rigid list of dos and don'ts just for the heck of dos and don'ts. It is indeed to protect us from ourselves.... That sin is in fact grounded in this notion of what is it that I want, as opposed to somebody else.

And in this regard, let me throw one more apology out there, and that is to people of faith across South Carolina, or for that matter, across the nation, because I think that one of the big disappointments when, believe it or not, I've been a person of faith all my life, if somebody falls within the -- the fellowship of believers or the walk of faith, I think it makes it that much harder for believers to say, "Well, where was that person coming from?" Or folks that weren't believers to say, "Where, indeed, was that person coming from?" So one more apology in there.

But I -- I guess where I'm trying to go with this is that there are moral absolutes, and that God's law indeed is there to protect you from yourself. And there are consequences if you breach that. This press conference is a consequence.

And from Mrs. Sanford:

Psalm 127 states that sons are a gift from the Lord and children a reward from Him. I will continue to pour my energy into raising our sons to be honorable young men. I remain willing to forgive Mark completely for his indiscretions and to welcome him back, in time, if he continues to work toward reconciliation with a true spirit of humility and repentance.

This is a very painful time for us and I would humbly request now that members of the media respect the privacy of my boys and me as we struggle together to continue on with our lives and as I seek the wisdom of Solomon, the strength and patience of Job and the grace of God in helping to heal my family.

AU Wants Justice Department To Revoke or Modify Questionable Grants

Americans United yesterday released a letter (full text) that it has sent to Attorney General Eric Holder challenging nine separate Juvenile Justice and Byrne Law Enforcement Assistance grants that were funded by the Department of Justice through Congressional earmarks in fiscal 2008. The letter asks that five of the grants-- involving drug prevention and at-risk youths-- be terminated. It asks that four others-- involving transitional housing, juvenile offenders, at-risk youth and funding of a medical building also housing a college chapel-- either be terminated or modified to include appropriate safeguards. The letter raises Establishment Clause questions about the nine grants, claiming that grantees are using federal funds for religious activities or that they engage in religious-based hiring in staffing the grant programs. The letter urges the Obama administration to revoke a 2007 memorandum from the Office of Legal Counsel concluding that requiring a grantee to comply with religious non-discrimination in hiring provisions of the Safe Streets Act would substantially burden its free exercise of religion in violation of the Religious Freedom Restoration Act. (See prior posting.)

Hindu Leader's Attempt To Modify Bail Conditions Rejected By Court

In Ex parte Prakashandand Saraswati, (TX Ct. App., June 24, 2009), a Texas appellate court rejected petition for a writ of habeas corpus filed by a prominent Hindu spiritual master and teacher who was attempting to obtain a modification of conditions imposed when he was released on bail after being charged with 20 counts of indecency with a child by contact. More specifically, prosecutors charged that between 1993 and 1996, Prakashandand Saraswati fondled the breasts of two minor girls.

Saraswati is the leader of the JKP-Barsana Dham movement. Its North American headquarters is in Texas. Originally his bail was conditioned on his having no unsupervised contact with children under 17, surrendering his passport, and remaining at least 200 yards from Barsana Dham property. In May 2008, Saraswati and the prosecutor filed a stipulation modifying conditions of his bond. His passport was returned to him, but he agreed to continue to stay away from the Barsana Dham property in Hays County (TX). Subsequently he filed another motion, and then a habeas petition, seeking to amend conditions of his bond further so he could return to Barsana Dham to live, practice his religion, and associate with the adults living there. He claimed that the original conditions violated his 1st Amendment freedoms of religion and association. The court concluded, however, that Saraswati is estopped from complaining about conditions that he had negotiated and agreed to. The Austin American-Statesman yesterday reported on the decision.

In Kenya, Evangelicals Oppose Proposal For Separate Kadhi Court System

Kenya's Daily Nation yesterday reported that the Evangelical Alliance of Kenya (EAK) has threatened to mobilize its Pentecostal members to vote against the country's draft constitution when it is put to a referendum, if drafters move ahead with plans to provide in the constitution for a separate set of Kadhi Courts for Muslims. Apparently earlier this week, Justice and Constitution Affairs Minister Mutula Kilonzo assured the Supreme Council of Kenya Muslim that the Kadhi Courts would be created as a system separate from the remaining judiciary. EAK argues, however, that freedom of religion, belief and opinion means that each religion should manage its own institutions and the state should avoid supporting religious dispute resolution. (See background on Kenyan Constitution reform.)

Orthodox Church Will Aid Russian Authorities In Pursuing Debtors

AFP reported yesterday that Russia's Federal Bailiffs' Service is working with the Russian Orthodox Church to shame debtors and those delinquent in their alimony payments into paying up. On Sunday, the Church and FBS signed an agreement under which priests will use their "spiritual influence" to convince debtors that not paying back what is owed is equivalent to theft. FBS is also working with Buddhist and Muslim representatives in other areas of Russia to obtain similar cooperation in shaming debtors into meeting their obligations.