Japan's Catholic Bishops Says Clergy Should Not Serve As Citizen Judges

Asahi Shimbun and Bloomberg News today report on the message (full text) issued last month by the Catholic Bishop's Conference of Japan on Catholic participation in Japan's new "citizen judge" system. The system, introduced in May, has citizens sitting alongside professional judges in serious criminal cases. The Bishops say that lay Catholics are free to participate: "Enlightened by Christian wisdom and giving close attention to the teaching authority of the Church, let the layman take on his own distinctive role." However the Bishops say that clergy should refuse to serve. They should indicate their opposition to serving and if nevertheless they are elected, they should refuse to participate in the trial and pay the prescribed fine of up to 100,000 yen. The Code of Canon Law, Canon 285, §3 provides: "Clerics are forbidden to assume public offices which entail a participation in the exercise of civil power."

Author Criticizes Religious Views of Nominee For Head of NIH

Author Sam Harris published an op-ed in yesterday's New York Times criticizing President Obama's nomination of Francis Collins to head the National Institutes of Health. Collins has been presented as a strong advocate of the compatibility of science and religion. (See prior posting.) Harris argues, however, that Collins' views would "seriously undercut fields like neuroscience and our growing understanding of the human mind." Harris says: "Most scientists who study the human mind are convinced that minds are the products of brains, and brains are the products of evolution. Dr. Collins takes a different approach: he insists that at some moment in the development of our species God inserted crucial components — including an immortal soul, free will, the moral law, spiritual hunger, genuine altruism, etc."

At Washington Meeting With Chinese, Obama Raises Religious Freedom Issue

Yesterday, the first U.S.-China Strategic and Economic Dialogue opened in Washington with some 200 Chinese officials in attendance. President Obama spoke at the conference which is co-chaired by Secretary of State Hillary Rodham Clinton and Treasury Secretary Timothy F. Geithner. (Washington Post). Yesterday's Fresno Bee reports that the 2-day conference is part of a series of rotating meetings between top US and Chinese economic and foreign policy officials that began in the Bush administration. In his remarks opening the Conference yesterday (full text), President Obama made reference to human rights and religious freedom concerns:

[T]he United States respects the progress that China has made by lifting hundreds of millions of people out of poverty. Just as we respect China's ancient and remarkable culture, its remarkable achievements, we also strongly believe that the religion and culture of all peoples must be respected and protected, and that all people should be free to speak their minds. And that includes ethnic and religious minorities in China, as surely as it includes minorities within the United States.

Support for human rights and human dignity is ingrained in America. Our nation is made up of immigrants from every part of the world. We have protected our unity and struggled to perfect our union by extending basic rights to all our people. And those rights include the freedom to speak your mind, to worship your God, and to choose your leaders. These are not things that we seek to impose -- this is who we are. It guides our openness to one another and to the world.

The White House has posted a press release and video of the President's remarks.

Nigerian Rebels Demanding Sharia Expand Attacks On Security Forces

Toronto's National Post reports that in Nigeria, the Muslim rebel group Boko Haram on Monday expanded its attacks against Nigerian security forces to in Yobe, Kano and Borno states. At least 80 people were killed after attacks the day before killing 50 in neighbouring Bauchi state. These four states are among 12 that-- to the consternation of Christian minorities-- began a stricter enforcement of shariah law in 2000. The rebels oppose Western education and demand adoption of sharia law in all of Nigeria. (See prior related posting.)

India's Defense Minister OK's Beards In Military For Muslim Men

In India, Defence Minister A. K. Antony has instructed all branches of the armed forces that they should permit Muslim recruits and officers to wear beards. Indian Muslim reported yesterday that the government's policy change came as a lawsuit against the Indian Air Force challenging its grooming policy was pending before India's Supreme Court.

Texas County May Contract With Chaplain Service For Employees

The Plano, Texas Star last Friday reported that Collin County commissioners voted last week to "try out" the services of Marketplace Chaplains, a Christian organization that offers brief, regular visits by Chaplains during which time they can build a relationship with employees. The service also provides a 24-hour service to employees dealing with an emergency or family crisis. If the county decides to contract with the chaplain service, it will cost it $160,000. Marketplace Chaplains apparently usually contracts with private businesses to provide counseling and support for their employees and their families who wish to use the service. It says the service decreases absenteeism and improves attitudes and morale. Marketplace Chaplains website says: "As a 501 (c) 3 non–profit Christian organization, Marketplace Chaplains USA maintains relationships with clergy of other faith groups. In the rare instance a request is made by an employee or family member, or recommended by a chaplain, someone from the employee's or family member's faith is called upon to meet the person’s specific need."

Recent Articles of Interest

From SSRN:

• Elliott Visconsi, The Invention of Criminal Blasphemy: Rex v. Taylor (1676), (Representations, Vol. 103, pp. 30-52, Summer 2008).
• Lea Bishop Shaver, The Inter-American Human Rights System: An Effective Institution for Regional Rights Protection?, (July 22, 2009).
• Francis Joseph Mootz, Faith and Politics in the Post-Secular Age: The Promise of President Obama, (July 13, 2009).
• Erin J. Cox, Freeing Exercise at Expression's Expense: When RFRA Privileges the Religiously Motivated Speaker, (UCLA Law Review, Vol. 56, p. 169, 2008).
• Prakash Shah, The Indian Dimension of An-Na'im's Islam and the Secular State, (Islam and Europe: Crises Are Challenges, Marie-Claire Foblets & Jean-Yves Carlier, eds., Leuven University Press, 2009).
• María Fraile Ortiz, The Islamic Headscarf: Does Context Matter?, (InDret, Vol. 3, 2008).
• Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities? Islamic Discussions of Western Secularism in the 'Jurisprudence of Muslim Minorities' (Fiqh Al-Aqalliyyat) Discourse, (Cardozo Law Review, Vol. 30, No. 6, pp. 2821-2854, 2009).

From SmartCILP and elsewhere:

• Symposium on the Environment, 23 Notre Dame Journal of Law Ethics & Public Policy 429-697 (2009).
• Jeffrey Shulman, Making Sense of the Establishment Clause, Engage, Vol. 10, Issue 2, p. 4 (2009).
• George W. Dent, Jr., The Growing Clash Between Religious Freedom and the Gay Movement, Engage, Vol. 10, Issue 2, p. 7 (2009).

"Flying Imams" Can Proceed Against Airport Security Officers For Search and Arrest

In the so-called "flying Imams" case (see prior posting), a Minnesota federal district court on Friday refused to dismiss false arrest, unreasonable search and seizure and equal protection claims against Metropolitan Airport Commission officers. The six plaintiffs, all imams, were removed from U.S. Airways Flight 300 in 2006 as they were returning from the North American Imams Federation conference held in Minneapolis. The action was prompted after reports that the men were praying loudly before the flight, that they talked about Saddam Hussein, they had no checked luggage, two of the men requested seat belt extensions, and they sat in a "suspicious" seating pattern. The imams were detained in the jet way, handcuffed, searched, transported to police operations center and questioned for several hours before being released.

In Shqeirat v. U.S. Airways Group, Inc., (D MN, July 24, 2009), the court wrote, in part:

MAC Defendants suggest that the attacks of September 11, 2001—perpetrated by men of Middle Eastern descent who espoused a radical version of Islam—justifies a massive curtailment of liberty whenever terrorism, and in this case, the suspicion of Islamic terrorism, is concerned. Unquestionably the events of 9/11 changed the calculus in the balance American society chooses to make, especially in airport settings, between liberty and security. Ultimately, the proper balance will be achieved, in large part, because we have the most capable and diligent law enforcement and intelligence communities in the world. But when a law enforcement officer exercises the power of the Sovereign over its citizens, she or he has a responsibility to operate within the bounds of the Constitution and cannot raise the specter of 9/11 as an absolute exception to that responsibility.

On the record before the Court, no reasonable officer could have believed they could arrest Plaintiffs without probable cause. The right that was violated is clearly established, and, thus, the MAC Defendants are not entitled to qualified immunity. Accordingly, summary judgment is denied on the unreasonable seizure claim.

The court however did dismiss plaintiffs' claims against US Airways holding that it was not a state actor and that law enforcement officers did not substitute the airline's judgment for their own. the Minneapolis Star-Tribune reported on the decision yesterday. (See prior related posting.)

USAID Inspector General Raises Questions About Religious Nature of Some Grants

On July 17 the Office of Inspector General of the U.S. Agency for International Development issued issued a report titled Audit of USAID's Faith-Based and Commuinty Initiatives. As summarized in the report's introduction:

This audit surveyed 31 USAID regional legal advisors, as well as 9 of the 10 faith-based organizations that receive the most USAID funding, concerning the use of USAID funds for religious activities. From these responses, audit staff found that some USAID-awarded funds were used for religious activities in four contracts that amounted to more than $325,000. These funds were used for the rehabilitation of mosques and adjoining community centers in Iraq. USAID also funded, within a program to combat HIV/AIDS, lesson plans that contained Biblical applications and discussions.

However, USAID officials were unsure whether such uses of Agency funding violated Agency regulations or the Establishment Clause .... In their view, the relevant legal precedent relating to the separation of church and state, and its application overseas—especially in light of foreign policy objectives—complicated the decision-making process about what activities should or should not be funded. USAID requested legal clarification on this issue from the Department of Justice in 2007 but has not received final guidance...

Both the Washington Post and BeliefNet News reported last week on the IG's audit.

Georgia Judicial Council Permits Religious Head Coverings In Courtrooms

In a press release issued Friday, Georgia's Supreme Court announced that all courts in the state will now permit head coverings for religious or medical reasons to be worn in court rooms. AP reports on the policy change impelled by an incident last year when a judge in Douglasville (GA) sentenced a woman to ten days for contempt for refusing to remove her hijab. After protests, the woman was quickly released. (See prior posting.) The new policy adopted by the Judicial Council of Georgia provides:

Head coverings are prohibited from the courtroom except in cases where the covering is worn for medical or religious reasons. To the extent security requires a search of a person wearing a head covering for medical or religious reasons, the individual has the option of having the inspection performed by a same-sex officer in a private area. The individual is allowed to put his or her own head covering back on after the inspection is complete.

Canada's High Court Rejects Hutterite Challenge To License Photo Requirement

In Alberta v. Hutterian Brethren of Wilson Colony, (Sup. Ct. Canada, July 24, 2009), Canada's Supreme Court in a 4-3 decision rejected a constitutional challenge brought by the Hutterites to Alberta's requirement that all drivers licenses contain a photo of the license holder. While Sec. 2(a) of Canada's Charter of Rights and Freedoms protects freedom of conscience and religion, the majority held that the universal photo requirement is justified under Sec. 1 of the Charter that permits reasonable limits on protected rights. As summarized by the court:

The Province's evidence demonstrates that the existence of an exemption from the photo requirement would materially increase the vulnerability of the licensing system and the risk of identity‑related fraud. Second, the universal photo requirement for all licensed drivers minimally impairs the s. 2(a) right. The impugned measure is reasonably tailored to address the problem of identity theft associated with driver’s licences. The evidence discloses no alternative measures which would substantially satisfy the government’s objective while allowing the claimants to avoid being photographed.

The majority also rejected a claim that the universal photo requirement infringes the equal protection guarantee of Sec. 15 of the Charter.

Justices Abella, LeBel and Fish each wrote a dissent. They stressed both the significant impact of the universal photo requirement on the Hutterite's religious beliefs and argued that the regulation is not a proportionate response to the problem of identity theft. Yesterday's Calgary Herald, reporting on the decision, says that the Hutterites are considering the possibility of leaving the province for a location that would be friendlier to them. Today's Lethbridge (AB) Herald also reports on the decision after interviewing the lawyer who represented the losing Hutterite colony.

Islamic Restictions Increasingly Being Enforced In Gaza

Israel's Haaretz today reports on the growing enforcement of Islamic law in the Gaza Strip by its Hamas dominated government. Already women lawyers are required to wear the hijab head covering in court. Modesty patrols are requiring women at beaches to wear head coverings and are inspecting isolated cars to prevent men and women from being together in them. Religious decrees requiring women to wear loose clothing are being accepted. Now several Hamas government agencies have apparently formulated a "General Moral List" which will be gradually introduced. The new requirements will ban whistling and honking horns at women, the display of mannequins in storefronts and prohibit crowded events to prevent men and women from touching.

Analysis Says European Fears Regarding Muslim Communities Appear Unfounded

Today's London Guardian, in a long article, reports that Europe's fear of the mass radicalization of its Muslim population now appears unfounded. Focusing on a recent Gallup poll, the article discusses Europe's fears earlier this decade of terrorism, a cultural "invasion," and high Muslim fertility rates. The Gallup poll shows a rejection of violence and increasing cultural integration in European Muslim communities. However the article points out that social and economic integration in Europe has been less successful.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Blount v. Ray, 2009 U.S. Dist. LEXIS 61521 (WD VA, July 17, 2009), a Virginia federal district court dismissed an inmate's RLUIPA claim that he was wrongly removed from his religious Common Fare Diet. The court held that plaintiff had not shown his sincerity regarding his religious dietary beliefs continued at the time he was removed from the food plan, since he refused to sign a CFD agreement.

In Ayotte v. McPeek, 2009 U.S. Dist. LEXIS 62163 (D CO, June 5, 2009), a California federal magistrate judge allowed an inmate to move ahead with his claim that his free exercise rights were infringed when his requests to replace his defective hearing aids were denied.Plaintiff alleged, along with other claims, that he has been prevented from fully understanding the religious programs that he attends in prison.

In Modlenaar v. Liberatore, 2009 U.S. Dist. LEXIS 62842 (WD NY, July 21, 2009), a New York federal district judge allowed a former Attica inmate to move ahead against a corrections officer in a suit challenging a denial of kosher food for six days while he was on a medically restricted diet.

In Pratt v. Hogan, 2009 U.S. Dist. LEXIS 63086 (ND NY, July 6, 2009), a civilly committed patient claimed that his required sex offender treatment program violated his free exercise rights. He alleged that he was an atheist, and the Good Lives Model and Boundaries Program compels one to believe in "spirituality" and includes relaxation programs that are partly based on eastern Zen practices. A New York federal district court concluded that defendants are entitled to qualified immunity because it was objectively reasonable for them to perceive no constitutional violations in implementing the program.

Suit Against Children Services Officials By Muslim Mother Is Mostly Dismissed

Abdulsalaam v. Franklin County Board of Commissioners, 2009 U.S. Dist. LEXIS 63296 (SD OH, July 23, 2009), involved a suit under 42 USC 1981 and 1983 against state officials and agencies in Ohio by a mother and her three daughters who were separated for a year when the daughters were placed in county child services custody. Social workers in Franklin County, Ohio charged educational neglect and physical abuse. Ultimately a court found those allegations unfounded. Plaintiffs allege that the abuse and neglect charges were fabricated as a result of racial discrimination, and that the girls were discouraged from practicing their Muslim religion while in foster care. In this decision, an Ohio federal district court found no evidence of racial discrimination and held that Section 1981 claims may not be based on religious discrimination. The court dismissed many of plaintiffs' claims, including their free exercise claim under Section 1983, holding:

Plaintiffs fail to cite a single precedent establishing that, even when viewed in the light most favorable to the Plaintiffs, Defendants acts--placement in a Christian foster home, refusal to place them in a Muslim foster home, refusal to provide them with a list of Muslim leader's phone numbers, or falsely reporting in FCCS' administrative file that they did not want to practice Islam--interfered with their right to free exercise. Accordingly, they have waived their free exercise claim by failing to support or develop it.

Plaintiffs were permitted to move ahead with claims under Section 1983 that the social worker interfered with protected rights of familial association and that she retaliated for plaintiff's engaging in protected speech. Plaintiffs were also permitted to proceed with a state law claim of intentional infliction of emotional distress. The social worker was charged with falsifying facts in her administrative file on the children.

Evangelist Tony Alamo Convicted On Mann Act Charges

Yesterday in Texarkana, Arkansas, Christian evangelist Tony Alamo was convicted in federal court on ten charges of violating the Mann Act by taking underage girls across state lines to have sex with them. According to the AP, five women, now age 17 to 33, testified that Alamo "married" them in private ceremonies while they were minors. They also told of trips outside of Arkansas with Alamo for sexual purposes. According to an earlier AP report, Alamo chose not to testify on his own behalf at trial. After the jury's verdict was read yesterday, Alamo was taken to a waiting U.S. Marshall's vehicle. He shouted to reporters: "I'm just another one of the prophets that went to jail for the Gospel." The charges against Alamo were filed after authorities last year raided the Arkansas compound of his Tony Alamo Christian Ministries as part of a child pornography investigation. (See prior posting.)

3rd Circuit Says RLUIPA Zoning Challenge Is Not Ripe

In Congregation Anshei Roosevelt v. Planning and Zoning Board of the Borough of Roosevelt, (3d Cir. July 22, 2009), the U.S. 3rd Circuit Court of Appeals held that a RLUIPA challenge to a zoning board’s decision was not ripe for review. At issue was whether a synagogue located in Roosevelt, New Jersey, whose occupancy was grandfathered under the relevant zoning ordinances, needed to file an application for a zoning variance when it entered an arrangement for a Yeshiva (a Jewish school) to also operate in its building. The court concluded that the Planning and Zoning Board's decision that the synagogue needed to apply for a variance should not be reviewed until an application for a variance was filed and ruled upon, so that a full record would be available.

4th Circuit Says Warden Has Qualified Immunity In Demotion of Rastafarian Officer

Booth v. State of Maryland, (4th Cir., July 21, 2009), involved a Rastafarian who was demoted from his position in a Maryland prison as acting lieutenant. Plaintiff alleged the demotion stemmed from dislike of the fact that he wore his hair in dreadlocks for religious reasons. The U.S. 4th Circuit Court of Appeals affirmed the grant of qualified immunity from damages to the warden who demoted plaintiff, saying that plaintiff "has failed to identify any authority to support his contention that the right to wear one’s hair in conformance with one’s religious beliefs is a clearly established constitutional right."

Saskatchewan Court Says Marriage Commissioner May Not Refuse To Perform Gay Weddings

In Nichols v. M.J., (Sask. Q.B., July 17, 2009), the Queen's Bench for the Canadian province of Saskatchewan upheld a decision of the province's Human Rights Commission that a government marriage commissioner illegally discriminated against a gay man when the commissioner refused to perform a marriage ceremony for him. The marriage commissioner, Orville Nichols (who is a Baptist), asserted religious objections to performing same-sex marriages. The court, however, rejected his claim, saying:

M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation....

I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect. However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.

Reporting on the decision, the Regina (SK) Leader-Post says that provincial officials will still move ahead with plans to obtain a Court of Appeal ruling on the constitutionality of a proposed law that would exempt marriage commissioners from performing same-sex marriages if they object to doing so for religious reasons. (See prior related posting.)

Religious Objections To USDA's Animal Tagging Program Rejected

A federal district court yesterday rejected a challenge to the U.S. Department of Agriculture's National Animal Identification System (NAIS). In Farm-To-Consumer Legal Defense Fund v. Vilsack, (D DC, July 23, 2009), plaintiffs claim that "NAIS requires Premises Identification Numbers ('PINs') for each of their farms and radio frequency identification devices ('RFIDs') for each of their cattle, both of which result in the collection of information into a huge national database against their wills and in violation of their religious beliefs." Religious beliefs cited include the belief that individuals (not the government) are "endowed by their Creator with dominion and control over animals on earth." They also contend that accepting "the mark" of NAIS violates their religious mandates. Finally, some of the plaintiffs are Old Order Amish, and NAIS violates their aversion to technology. Its cost may force them to stop religiously-mandated farming.

All but one of the plaintiffs live in Michigan and the lawsuit focused on Michigan's adoption of NAIS as a means of combating tuberculosis in cattle. The court dismissed claims against the U.S. Department of Agriculture because plaintiffs' alleged injuries stemmed from the independent decision of the Michigan Department of Agriculture (MDA) to adopt the program, and not from action by the USDA. It dismissed claims under RFRA and NEPA against the MDA, because neither of those federal statutes apply to states. It dismissed claims that MDA failed to comply with state law on 11th Amendment grounds, and rejected supplemental jurisdiction over three state law claims. AP reported on the decision. (See prior related posting.)