Federal Magistrate Rejects Free Exercise Challenge To Marijuana Laws

In Hutchinson v. State of Maine, (D ME, July 20, 2009), a Maine federal magistrate judge recommended rejecting a free exercise challenge to Maine's prohibition on the cultivation of marijuana. Plaintiff James Hutchinson, who had been convicted on marijuana charges, brought a civil suit challenging the law. He claimed to be a member of The Religion of Jesus Church which has as a sacrament the use of cannabis. The court concluded that prior precedent precludes relying on the First Amendment or on the Maine Constitution's free exercise protections to invalidate marijuana laws. Today's Lewiston (ME) Sun Journal reports on the decision.

Israeli Gays Say Orthodox Created Culture That Led To Shooting Last Week

Time reported yesterday that in Israel, police are conducting a manhunt throughout Tel Aviv seeking the masked gunman who killed two and wounded 15 at a gay youth organization's headquarters on Saturday night. Haaretz said that the gunman stormed into a basement room in the Tel Aviv Gay and Lesbian Association building and opened fire on teenagers attending a weekly support group meeting. The gay community charges that anti-gay incitement by Orthodox Jewish rabbis and politicians created an atmosphere conducive to the shooting. Tel Aviv is a favorite vacation spot for gay tourists, and the Israel Ministry of Tourism has a marketing campaign specifically directed to the gay community. However Tel Aviv is just west of the ultra-Orthodox city of Bnei Brak. While Israel's chief rabbis, and the Orthodox Shas Party, have all strongly condemned the shootings, there has been an ongoing culture war between gays and the Orthodox. Last year, a former Shas Party Health Minister blamed a series of small earthquakes on the rise in homosexual activity.

Jewish School's Appeal Will Be One of the First In Britain's New Supreme Court

In Britain beginning Oct. 1, a new Supreme Court will take over the appellate jurisdiction that has traditionally been exercised by the House of Lords. The change was authorized by the Constitutional Reform Act 2005. (Background.) One of the first case that will be heard by the new court is an appeal by London's Jewish Free School of a controversial decision striking down its admissions policy. In June, the Court of Appeal held that the 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. At issue is whether the school can use the traditional Orthodox Jewish definition of who is Jewish that requires either the individual be born of a Jewish mother, or else that the person has been converted in accordance with Orthodox Jewish law. (See prior posting.) The Jerusalem Post reports that the House of Lords on Monday agreed to allow an appeal by the school. [Thanks to Steven H. Sholk for the lead.]

New Iqbal Pleading Standard Leads To Dismissal of Part of School-Music Lawsuit

In S.D. v. St. Johns County School District, (MD FL, July 29, 2009), a Florida federal district court applied the Supreme Court's new pleading standards announced in Ashcroft v. Iqbal to dismiss a portion of a lawsuit claiming that a school's music program violated free exercise and establishment clause constraints. The suit alleged that three Florida public school music teachers chose songs that were religious in nature for students to perform. (See prior posting.) The lawsuit was brought against the school district. It was also brought against the school principal and three teachers in their individual, as well as their official, capacities. (Full text of amended complaint.) The court held that the claims against defendants in the individual capacities did not meet the Iqbal test and so dismissed them as defendants. However the court refused to dismiss claims against the school district. Yesterday's Jacksonville (FL) News reported on the decision.

Russian Supreme Court Bans Radical Islamic Group

Interfax reported yesterday that the Appeal Board of the Russian Supreme Court has banned all activities in Russia of the Islamic group, Tablighi Jamaat. Upholding a finding by the Prosecutor General's Office that Tablighi Jamaat is an extremist group, the Court found that the group's advocacy of a Global Caliphate "threaten[s] interethnic and inter-religious stability in Russian society and territorial integrity of the Russian Federation."

USCIRF Writes Clinton Urging Her To Raise Religious Freedom Issues In Africa

Secretary of State Hillary Clinton will begin a ten-day trip to seven African countries beginning August 4. (State Department briefing.) The U.S. Commission on International Religious Freedom has written Clinton asking her to raise religious freedom issues when she visits Nigeria, and when she meets with Somalian officials at the AGOA Forum in Kenya. The letter (full text) points to sectarian violence in Nigeria and the introduction of Sharia law in some Nigerian states. In Somalia, USCIRF is concerned about infringements of religious freedom and issues relating to the implementation of Sharia law.

Italy Approves Use of RU-486 Amidst Threats of Excommunications

CathNews today reports that the Italian Pharmaceuticals Agency (AIFA) on Thursday approved the use of the abortion drug Mifepristone, also known as RU-486. AIFA required that it be administered only in a hospital setting. Monsignor Elio Sgreccia, Pope Benedict XVI's top expert on bioethical issues, said that the Church would excommunicate any doctor who prescribes the drug and any woman who takes it.

Drug Raid On Church of Universal Love and Music Leads to 22 Arrests

In Fayette County, Pennsylvania on Saturday, the County Drug Taskforce arrested 22 people in a raid on the Church of Universal Love and Music. Yesterday's Pittsburgh Post-Gazette reports that the raid took place during a 3-day music festival attended by around 800 people. Earlier this year, the church entered a settlement in a suit brought by it under RLUIPA challenging the county's denial of zoning permission for it to use property in an agricultural area for religious concerts. Under the settlement the Church may host up to 12 event per year, with a maximum crowd of 1,500 at each. The county claimed that the organization was actually operating as a music business rather than as a church. (See prior posting.)

UPDATE: Monday's Pittsburgh Tribune-Review has a more detailed story, indicating that 23 people were arraigned overnight Saturday as a result of the raid. It reports that the raid "resulted in ... the seizure of enough marijuana, hash brownies, hallucinogenic mushrooms, LSD, laughing gas and drug paraphernalia to pack two storage trailers with a capacity of about 3,000 pounds."

Court Says Atheists Challenging School Program May Not Proceed Anonymously

In Freedom from Religion Foundation v. Creek, 2009 U.S. Dist. LEXIS 65818 (D CO, July 22, 2009), a Colorado federal magistrate judge denied plaintiffs' request that they be allowed to proceed using pseudonyms. Plaintiffs were atheists who were challenging as a violation of the Establishment Clause a Colorado school district's adoption of a program known as "40 Developmental Assets." Plaintiffs cited public views toward atheists and the fact that their children were parties to the case. The court held that a mere unsubstantiated potential for adverse public reaction does not justify proceeding anonymously. In particular, the court concluded that the children were not necessary parties to the litigation and criticized plaintiffs for bringing them in unnecessarily to justify the parents' proceeding under pseudonyms. The amended complaint in the case was filed after an earlier complaint challenging the same program was dismissed. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Anthony Bessette, Regulating and Punishing Adultery in Korea and East Asia, (July 27, 2009).
• Nomi Maya Stolzenberg, Board of Education of Kiryas Joel Village School District v. Grumet: A Religious Group's Quest for its Own Public School, (Law and Religion: Cases In Context, Gregory Alexander & Eduardo Penalver, eds., Aspen, 2010).
• Andrew M.M. Koppelman, Religious Establishment and Autonomy, (Constitutional Commentary, Vol. 25, 2009).
• Frederick Mark Gedicks, American Civil Religion: An Idea Whose Time Is Past, (March 2009).
• Zhong Zewei, Racial and Religious Hate Speech in Singapore: Reclaiming the Victim's Perspective, (Singapore Law Review, 2009).

From SmartCILP and elsewhere:

• Karima Bennoune, Toward a More "Courageous Politics" At the 60th Anniversary of the UDHR: Talking About Muslim Fundamentalism in the West, 24 Maryland Journal of International Law 125-134 (2009).
• Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Arizona Journal of International & Comparative Law 279-301 (2009).
• Daniel J. H. Greenwood, Faith Based Investing: Are Shares Entitled to the Residual?, 24 Research in Law & Economics 91-130 (2009).
• Ken Matheny, Catholic Social Teaching on Labor and Capital: Some Implications for Labor Law, 24 St. John's Journal of Legal Commentary 1-52 (2009).
• Mark Tushnet, Heller and the Critique of Judgment, 2008 Supreme Court Review 61-87.
• Symposium: Establishment and Fairness, 25 Constitutional Commentary 241-320 (2008).

India's High Court Prospectively Bars Shrines On Public Land

Merinews and the Calcutta Telegraph report on a decision handed down Friday by a 2-judge panel of the Supreme Court of India regarding the building of religious shrines. The decision involved an appeal by the Central government of an order against the government of Gujarat requiring it to remove all religious shrines that encroach on public land. The Apex Court ruled that existing shrines need not be relocated, but ordered the Solicitor General to draft guidelines to prevent future construction of shrines that encroach on public land.

Suit Threatened Against British Photographer Who Used Church For Photo Shoot

In Cornwall, England, attorneys for the vicar of the 13th century Anglican church in St. Michael Penkivel have threatened photographer Andy Craddock with legal action. Yesterday's London Daily Mail reports that Craddock and his girlfriend walked into the open church building with two models who posed for an erotic photo shoot, using the the church interior as a backdrop. Rev. Andrew Yates's solicitor says that the photos, published on Craddock's website, are blasphemous and has threatened to sue Craddock for trespass. He says public access to the church is only for worship or related church activities and that Craddock did not have permission for the photography session. In 2005, the church was used to film Rowan Atkinson's comedy about a serial killer, Keeping Mum. Craddock said: "How is it worse having someone naked in the church than having a film set there about murder and death? If the parishioners are upset by the naked girls on their altar, why are they not as upset about murders set around the church and the village?"

Establishment Clause Challenge To Homeless Shelter Lease and Sale Moves Ahead

In Community House, Inc. v. City of Boise, 2009 U.S. Dist. LEXIS 65958 (D ID, July 29, 2009), an Idaho federal district court refused to grant defendants summary judgment and allowed plaintiffs to move ahead on their Establishment Clause challenge to the city of Boise's lease and eventual sale of a homeless shelter to Boise Rescue Mission. The court also permitted a challenge under Idaho's constitution to move ahead. Among other violations alleged in the lawsuit was religious discrimination in violation of the federal Fair Housing Act. However the court concluded that nothing had been presented by plaintiff to support the allegation. The decision dealt with a number of other discrimination claims as well growing out of the lease and sale. A preliminary injunction had already been granted during the lease and before the sale involved in the case. (See prior related posting.)

Religious Discrimination Challenges To Placement On No-Fly List Dismissed

In Ibrahim v. Department of Homeland Security, 2009 U.S. Dist. LEXIS 64619 (ND CA, July 27, 2009), Rahinah Ibrahim, a Muslim woman who is a citizen of Malaysia and was a graduate student at Stanford University in 2005, challenged the placement of her name on the Transportation Security Administration's no-fly list and her treatment at the San Francisco airport. This decision involves Ibrahim's amended complaint after a decision on various issues in the case by the 9th Circuit. Ibrahim claimed that placing her name on the no-fly list violated her right to freely exercise her religion, her right to freely associate with other Muslims and Malaysians, her right to be free from unreasonable searches and seizures, and her rights to equal protection and procedural due process. The court, however, held that since Ibrahim had now returned to Malaysia, she cannot maintain her action for future relief because the Constitution does not apply extraterritorially to protect non-resident aliens outside the country.

As to Ibrahim's claim for damages on the basis of her past treatment at the San Francisco airport, under the Supreme Court's recent decision in Ashcroft v. Iqbal her allegations were not strong enough to create a plausible case of religious and national origin discrimination. This claim was dismissed with leave to amend after discovery in other aspects of her case. Her claim that her hijab was temporarily removed by a police officer searching her was not sufficient to state a claim for violation of religious expression. Ibrahim was permitted to proceed against airport, police and city officials on claims of false imprisonment and interference with civil rights, and against all defendants on Fourth Amendment and emotional distress claims.

Recent Prisoner Free Exercise Cases

In Smith v. Ozmint, (4th Cir., July 31, 2009), the U.S. 4th Circuit Court of Appeals held that the South Carolina Department of Corrections had not justified under RLUIPA its policy of forcibly shaving the heads of maximum security inmates who wear long hair as a matter of religious belief. At the summary judgment stage, defendants had not shown that the policy furthers a compelling governmental interest in space utilization, hygiene, and security by the least restrictive means.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 63515 (ED AR, June 26, 2009), an Arkansas federal magistrate judge recommended that an inmate be permitted to proceed against several state corrections officials. Plaintiff claims that defendants' enforcement of a Department of Corrections policy prohibiting the use of tobacco violates his free exercise rights.

In Perkins v. Booker, 2009 U.S. Dist. LEXIS 64092 (WD MI, May 29, 2009), a Michigan federal magistrate judge recommended rejecting a summary judgment motion filed by two defendants in a prisoner's claim against them charging infringement of his Free Exercise rights and his rights under RLUIPA. At issue was whether plaintiff was properly removed from the prison's kosher food program.

In Brown v. Unfried, 2009 U.S. Dist. LEXIS 64520 (SD IL, July 27, 2009), an Illinois federal district court refused to strike plaintiff's free exercise claim finding that allegations the Madison County Jail refused to accommodate plaintiff's observance of Ramadan are separate from a retaliation claim filed by plaintiff.

In Forde v. Zickefoose, 2009 U.S. Dist. LEXIS 65616 (D CT, April 2, 2009), a Connecticut federal district court refused defendants' motions for summary judgment and permitted a woman federal prisoner who had converted to Islam to move ahead with her claims under RLUIPA and the First amendment. Plaintiff objected to prison policies that subject her to non-emergency pat-down searches by male guards, compel her to use an identification photo that shows her without her hijab, and which fail to provide a qualified imam for weekly jum'ah prayer services.

Religion News Service yesterday reported more broadly on the issues involved in prisoner access to religious materials.

Developments In Two Faith Healing Trials

There have been developments in two separate cases in which parents who relied on faith healing instead of seeking medical assistance were charged in the deaths of their children. In Wausau, Wisconsin, Dale Neumann was convicted Saturday of second degree reckless homicide in the 2003 death of his daughter. AP reports on the conviction in the death of eleven-year old Madeline Neumann who was suffering from undiagnosed diabetes. She died in a coma on the floor of the family's rural home, surrounded by people praying for her. The girl's mother was already convicted in a separate trial. Sentencing will be Oct. 6. The couple faces up to 25 years in prison. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Meanwhile, in Oregon City, Oregon Friday, Craig Worthington, who was acquitted last month of all charges except second degree criminal mistreatment in the death of his 15-month old daughter (see prior posting), was sentenced to two months in jail and 5 years probation. He was also ordered to provide medical care for his other children. AP reported on the sentencing. Friday's Salt Lake Tribune also discusses the case.

New IRS Form 990 Pushes Non-Profits To Comply With State Rules

Beginning this year, a newly designed IRS annual return on Form 990 must be filed by non-profits. While churches and various church-affiliated organizations are exempt from filing the form, other religious organizations must do so. An article yesterday in On Philanthropy , as well as an earlier article in Nonprofit Business Advisor, point out that among the new questions on Form 990 is Section C, Line 17 asking for a list of all states in which a copy of the federal Form 990 is required to be filed. This effectively requires the non-profit to list all states where its compliance with state charity registration laws is necessary. Schedule G , Question 3, asks where the organization is registered or licensed to solicit funds. The articles say that in the past many charities have ignored state requirements, but the new federal Form 990 questions are likely to change that. Organizations will need to determine whether their activity-- particularly their online activity-- amounts to a solicitation in various states. They will also need to look closely at the widely differing exemptions from state to state.

5th Circuit Says Ban On Santeria Sacrifices Violates Texas RFRA

In Merced v. Kasson (consolidated with Merced v. City of Euless) , (5th Cir., July 31, 2009), the U.S. 5th Circuit Court of Appeals held that a city's prohibition of animal sacrifices essential to Santeria religious practice violates the Texas Religious Freedom Restoration Act (TRFRA). Jose Merced, a Santeria priest, had been ritually sacrificing sheep, goats and turtles in a room attached to his garage approximately once a year for 16 years without incident when the city of Euless, Texas informed him that he could no longer do so under its ordinances. Merced sued seeking an injunction to prevent enforcement of the ordinances against him.

Reversing the trial court, the 5th Circuit concluded that the ordinances substantially burden Merced's free exercise of religion. It also concluded that (while a close case) the city failed to show that it had a compelling interst in barring Merced's activities, and that the ordinances completely banning Merced's slaughter of four-legged animals are not the least restrictive means of carrying out the city's interests. The district court had found no burden, saying Merced had not proven that orishas required sacrifices to be located at his home. (See prior posting.) The 5th Circuit said, among other things, that "predicating a substantial burden on the results of a religious ceremony (divining the will of the orishas) impermissibly allows judges to evaluate the intricacies of a religious practice." By relying on TRFRA, the court avoided having to deal with the constitutional free exercise claim that Merced had also raised. Yesterday's Fresno Bee, reporting on the decision, says that the city of Euless plans to seek a rehearing.

UPDATE: A press release on the case from Becket Fund links to briefs in the case and to a recording of the oral arguments.

Authorities Investigating Muslim Violence Against Christians In Pakistani City

In Pakistan's province of Punjab, in the city of Gojra, violence broke out Saturday between Muslim extremists (members of the banned Sipah-e-Sahaba group) and Christians. AP reports that hundreds of Muslims began torching Christian homes after a false report that a Quran had been defaced. At least six Christians (including a child) were killed and ten were wounded. Subsequently shots were fired on a peaceful Muslim procession passing a Christian neighborhood. Paramilitary forces were sent to assist police. According to Geo News, Punjab’s Chief Minister, Shahbaz Sharif, promising harsh punishment of those who took the law into their own hands, has ordered a judicial inquiry into the incident.

UPDATE: The New York Times on Sunday posted a more personalized account of the situation in an article titled Hate Engulfs Christians in Pakistan.

Vietnam Orders Buddhist Monks To Leave Monastery

The New York Times today reports on the standoff between Vietnamese authorities and Buddhist monks at Bat Nha Monastery. They were ordered last October by the chairman of Vietnam’s National Committee on Religious Affairs to leave the monastery. The monks, who are followers of Zen master Thich Nhat Hanh, have been training other monks there since 2005 after Hahn—who developed the philosophy called Engaged Buddhism-- was welcomed back from 39 years of exile in France.

The monastery’s problems with authorities began after Hanh made statements in support of the Dalai Lama and urged broader religious freedom in Vietnam. In ordering Hanh’s followers to leave, the government claimed that Plum Village, Hanh’s monastery in southern France, had published false information about Vietnam on its website. On June 27, power was cut to the Monastery compound and two days later a mob threw rocks and animal excrement at an official Buddhist delegation that came to investigate. Government authorities say the problems are caused by disputes between Hanh’s followers and Abbot Duc Nghi, the original owner of the property at Bat Nha. Hanh’s followers have invested over $1 million in expanding the monastery compound.