Obama Nominations for 3rd and 6th Circuits: What Do We Know of Their Views On Religion Issues?

President Barack Obama on Friday sent two nominations for vacant Court of Appeals judgeships to the Senate. (White House press release.) Nashville attorney and ERISA specialist Jane Stranch has been nominated for the 6th Circuit. Stranch has been active in the Episcopal Church, serving as a Vice-Chancellor for the Episcopal Diocese of Tennessee.

Federal district judge Thomas I. Vanaskie has been nominated for a vacancy on the 3rd Circuit. As a district judge since 1994 (chief judge since 1999) for the Middle District of Pennsylvania, he has written several opinions dealing with free exercise issues.

• The most important is Black Hawk v. Commonwealth of Pennsylvania, (2002), in which he held that a Native American holy man's free exercise rights were violated when Pennsylvania refused to grant him an exemption from a permit fee requirement for two black bears he kept. The bears were used by Dennis Black Hawk to perform religious ceremonies. The decision was affirmed by the 3rd Circuit, in an opinion (full text) written by now Supreme Court Justice Samuel Alito who at that time was a judge on the 3rd Circuit. In 2000, Vanaskie also wrote the opinion (full text) granting a preliminary injunction in the Black Hawk case.

Other free exercise opinions written by Vanaskie are:

• Williams v. Myers, (2000), [LEXIS link], rejecting an inmate's claim that he was denied parole for refusing to attend a religious-based drug and alcohol treatment program;
• Shahin v. College Misericordia, (2006) [LEXIS link], finding that Muslim faculty member failed to show religious or national origin discrimination in Title VII case;
• Khouzam v. Hogan, (2008), holding that an Egyptian Coptic Christian should have been given an opportunity to challenge Egypt's assurance that he would not be tortured if he was returned to Egypt where he had been convicted in abstentia of murder. The decision was vacated by the 3rd Circuit (full text of opinion) which agreed with the substance of Vanaskie's findings but disagreed with the remedy he granted; and
• Smith v. Kyler, (2008), [LEXIS link], rejecting a prisoner's claim under the constitution and RLUIPA that the prison should have furnished Rastafarian prisoners a weekly group prayer service led by a prayer leader. The decision was affirmed by the 3rd Circuit (full text of opinion).

11th Circuit Remands Asylum Case For Further Findings on Religious Persecution

In Kazemzadeh v. U.S. Attorney General, (11th Cir., Aug. 6, 2009), the U.S. 11th Circuit Court of Appeals in a 2-1 decision remanded for further fact finding a petition for asylum and withholding of removal filed by an Iranian man who had converted from Islam to Christianity. Judge Pryor, writing the majority opinion, said:

A denial of review will return the petitioner to the theocratic regime in Iran, but an erroneous grant of review could establish a precedent that rewards less than genuine fears of persecution based on religious conversion. ... The right course between the threats of Scylla and Charybdis is for the Board to reconsider the record, which contains important evidence that the Board failed to mention.... There is evidence that the law against apostasy is not often enforced in Iran, but neither the Board nor the Immigration Judge considered Kazemzadeh's testimony that Iranians who convert from Islam to Christianity avoid punishment by instead suffering persecution by practicing underground.

Judge Marcus concurred, but also wrote a separate opinion stressing, among other things, that "it is legal error to deny asylum on the basis of well-founded fear of religious persecution on the theory that an individual may escape discovery by abandoning his faith or hiding it and practicing his religion underground."

Judge Edenfield dissented on the religious persecution issue, arguing that having to practice religion underground to avoid punishment should not be seen as a form of persecution. He went on to conclude that the Board of Immigration Appeal acted reasonably in concluding that appellant had failed to demonstrate a pattern or practice of persecution against Christian converts in Iran. Finally he urged that on remand the Board of Immigration Appeals make a credibility determination as to the issue of the genuineness of appellant's conversion. Volokh Conspiracy discusses this latter point more fully. [Thanks to Alliance Alert for the lead.]

Feelings Run High Over Lodi CA Prayer Policy

Passions seem to be running high over Lodi, California City Council's decision that prayers delivered at the beginning of Council meetings should be non-sectarian. Yesterday's San Jose Mercury News reports that Council postponed Wednesday's scheduled discussion of the policy to a special meeting scheduled for Sept. 30. However competing demonstrators lined the sidewalk-- one side carrying signs saying "Keep them separate" and "Lodi is not a Christian town." The larger group-- some 300-- were on the other side of the issue, chanting "Jesus" and "Amen." The rally against current policy was sponsored by the national group, The Pray In Jesus Name Project. A 13-year old demonstrator said: "It's becoming harder and harder for the Christians. ... It's only because we support God that our country is as blessed as it is." Meanwhile inside Methodist minister, Rev. Alan Kimber, delivered a non-sectarian invocation-- a moment of silence and then thanks for our country's freedom to express different beliefs. When he ended with a simple "Amen", some members in the audience yelled out: "in Jesus name." (See prior related posting.)

County Wants Return of Settlement From Church of Universal Love and Music

After last week's drug raid at the Church of Universal Love and Music (see prior posting), Fayette County, Pennsylvania has now filed a motion in federal court seeking to recover from the Church the $75,000 the county paid in a settlement of a RLUIPA zoning lawsuit against it. The motion also seeks to enjoin the Church's holding any more concerts. According to yesterday's Pittsburgh Post Gazette , the county argues that the settlement agreement was violated when the church permitted drug use at the concert it sponsored. In the case the Church claimed denial of a zoning permit amounted to religious discrimination.

UPDATE: The Pittsburgh Tribune-Review reports that on Friday the court denied Fayette County's request for a temporary restraining order after church founder William Pritts agreed to not hold any events at the church over the weekend. The court set a hearing on a preliminary injunction for Thursday.

UPDATE 2: On Aug. 13, the federal district court issued a temporary injunction barring the church from holding any events that involve amplified music until a hearing on a permanent injunction is held in several months. (Pittsburgh Post-Gazette, 8/13).

Conservative Rabbi Sues Challenging Georgia's Kosher Food Labeling Act

Yesterday in Atlanta, Georgia, a rabbi filed a state court lawsuit challenging the constitutionality of Georgia's Kosher Food Labeling Act (OCGA Sec. 26-2-330 ff.). The complaint (full text) in Lewis v. Perdue, (Super. Ct. Fulton Co., filed 8/9/2009), claims that by defining "kosher food" as "food prepared under and of products sanctioned by the orthodox Hebrew religious rules and requirements," Sec. 26-2-330 ignores the different interpretations in different streams of Judaism as to what is kosher. This, the lawsuit contends, violates the constitutional rights of Rabbi Shalom Lewis who applies Conservative Jewish standards. The suit contends that the law as currently written violates the free exercise, establishment, equal protection and due process clauses of the U.S. and Georgia constitutions. The ACLU which filed the suit on behalf of Rabbi Lewis has issued a press release on the case.

Harvard Dean, Expert on Religion and Pluralism, Nominated for LSC Board

Martha L. Minow, who earlier this year was named Dean of the Harvard Law School, has now also been nominated by President Barack Obama to be a board member of the Legal Services Corporation. One of Minow's major research interests has been religion and pluralism. A White House press release yesterday announced that she is one of 5 individuals that have been nominated to the 11-member LSC board.

Iowa Bus System Removes Atheist Ads After Complaints Received

The controversy over ads on the side of buses placed by atheist groups has now moved to Des Moines, Iowa. WHO-TV News reported Wednesday that DART, the agency which operates buses in the city, is removing ads already on buses reading: "Don't believe in God? You are not alone." Even though conservative Christian ministers in the area have no objections to DART running the ads, DART acted after receiving a number of phone calls from individuals who were offended. DART says its advertising commission never approved them. Iowa Atheists and Freethinkers will receive a full refund of ad fees they paid. [Thanks to Scott Mange for the lead.]

UPDATE: The Des Moines Register reported Friday that DART has decided to put the ads back up, and to update its advertising policies to make clear that only ads that are obscene or profane will be banned.

Korea's Constitutional Court Upholds Ban on Columbaria Near Schools

Korea's Constitutional Court on July 30 upheld a law that bans locating a columbarium within 200 meters of a school. Indian Catholic reports the court held that the law can be applied to columbaria owned by religious organizations as well as those owned privately. The court said that a nearby columbarium is likely to have a negative emotional impact on students. The law banning construction near schools was enacted in 2007 after a Catholic Church won its battle in the Supreme Court under prior law to build a columbarium in the basement of its new building next to a school. The Catholic Diocese of Seoul issued a statement criticizing the court's decision, saying it infringes religious freedom.

Court Permits Forfeiture Of Dinosaur Adventure Land Properties For Taxes Due

In United States v. Hovind, (ND FL, July 29, 2009), a Florida federal district court permitted the federal government to move ahead with its criminal forfeiture of properties that make up Dinosaur Adventure Land (as well as related bank accounts) to cover back taxes of Christian evangelist Kent Hovind. Hovind is serving a 10 year prison sentence for failing to deduct payroll taxes for the employees of his Creation Science Evangelism organization. His wife was sentenced to one year. Hovind, operating as a corporation sole with a license from the "Kingdom of Heaven" under an arrangement set up by his associate, Glenn Stoll, claimed no taxes were due on his employees who he said were missionaries. (See prior posting.) Stoll had intervened in the forfeiture case to claim that he, as trustee, owned nine of the properties being forfeited. The court rejected that claim, finding that Stoll was merely the nominal owner of the properties for Hovind. However it upheld the claim of Hovind's son, Eric Hovind, to one piece of property. The court ordered sale of the properties piecemeal to realize the $430,400 due the government, with remaining properties returned to the Hovinds. A Pensacola News Journal article Tuesday gave further background.

Suit Claims Free Exercise Right For Parochial School Student To Be In Public School Band

In Burrell, Pennsylvania, a talented eighth-grade saxophone player and his family have filed a federal lawsuit against the Burrell School District alleging that musician Alexander Trefelner's free exercise rights are being infringed by school district policy. Yesterday's Pittsburgh Post-Gazette reports that Trefelner has decided to attend a Catholic high school next year instead of continuing in public school. Because of that, he will not be able to continue to participate in the public school's extracurricular band programs, even though home schooled and cyber-schooled students can. A bill pending in the state legislature would permit private school students to participate in these kinds of extracurricular activities, but it has not yet passed. Currently the decision is left to each school board. The lawsuit contends that the district is discriminating against Trefelner because he chose to pursue religious education. The school district says the issue is not that he attends a religious school, but rather that it is a private school.

Suit Charges Jewish Majority On School Board With Establishment Clause Violations

In Long Island, New York, attorneys for public school children have filed a federal lawsuit against the Lawrence School District claiming that the Orthodox Jewish majority on the board have implemented policies that violate the Establishment Clause. 5Towns Jewish Times yesterday reported that a major issue of contention is the decision by the board to close school Number 6 in Woodmere, the newest school in the district. Woodmere is also seen as being in the best physical condition and is the only handicapped accessible elementary school. Six of the seven Orthodox Jews on the board send their own children to Jewish religious schools. It is rumored that the closed school will be sold or leased to a yeshiva, or that proceeds from sale of the school will be used to pay for tax reductions for parents who send their children to non-public schools. However the school district says there are currently no plans for disposition of the school. The court denied a temporary restraining order that would have kept the school open, saying plaintiffs had little likelihood of success on the merits. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Criminal Contempt Charges Unsealed In Santa Rosa School Prayer Case

Yesterday's Pensacola (FL) News Journal reported that a federal judge on Monday unsealed criminal contempt charges against a high school principal and its athletic director who are charged with ignoring an injunction against faculty-led prayer. In January, nine days after U.S. District Judge Casey Rodgers issued a temporary injunction prohibiting the Santa Rosa County (FL) School District officials from promoting prayers during school-sponsored events, principal Frank Lay asked athletic director Robert Freeman to lead a prayer at the beginning of a luncheon at Pace High School. Lay was one of the named defendants in the lawsuit that led to a consent decree enjoining prayer at school activities and barred school personnel from promoting their own religious beliefs at school. Another contempt action, brought by the ACLU, is pending against a school district clerk who enlisted her husband to offer a prayer at a school banquet. (See prior posting.)

AT&T Pays $1.3 M In Religious Discrimination Case

The EEOC announced last week that a Satisfaction of Judgment was entered in an Arkansas federal district court in EEOC v. Southwestern Bell Telephone, LP. In the case, the EEOC sued AT&T alleging religious discrimination in violation of Title VII of the 1964 Civil Rights Act. In 2005, AT&T refused to allow the two Jehovah's Witness employees to take a vacation day to attend their annual religious convention, and then fired them when they took the time off anyway. In 2007, a jury awarded $756,000 in back pay and damages. The 8th Circuit rejected an appeal on procedural grounds. (See prior posting.) With interest, the judgment amount has grown to over $1.3 million. AT&T has now paid that amount.

Sudanese Woman Reporter Challenging Sharia Indecency Punishment

In Sudan, where sharia law is widely applied (background), journalist Lubna Ahmed al-Hussein wants to challenge the validity of applying public indecency laws-- with flogging as punishment-- to women who wear trousers. Middle East Online reported yesterday on Hussein's arrest, along with 12 other women who were wearing trousers, at a Khartoum restaurant. They are subject to punishment of up to 40 lashes. Ten others have already received this punishment. Hundreds of activists and political opponents have been demonstrating outside the court in support of al-Hussein. She argues that the indecency law is inconsistent with both the constitution and Islamic law. She says defiantly: "if the constitutional court says the law is constitutional, I'm ready to be whipped not 40 but 40,000 times." Hussein worked with the United Nations media office in Sudan, and may be entitled to immunity. She says she wants to waive her immunity to challenge the law, and has resigned her position. However one of her attorneys asserted her immunity anyway. The judge has adjourned the trial until September while the Sudanese foreign ministry rules on the immunity issue.

Minister Sentenced On Tax and Bank Fraud Charges

The Maryland U.S. Attorney's Office announced yesterday that former pastor Otis Ray Hope was sentenced to 37 months in prison, followed by 3 years of supervised release, on criminal tax charges and for conspiracy to commit bank fraud. He was also ordered to pay over $2.4 million in restitution. Hope was hired in 1996 as the senior pastor for Montrose Baptist Church in Rockville, Maryland where he supervised the Montrose Christian School and the parish's "English as a Second Language" Program. Hope formed his own company to take over the ESL program, and diverted over $950,000 of student tuition payments to his own and his family's personal use. He also failed to pay taxes on those amounts. Separately he filed a false application for exemption from federal taxes for Shiloh Ministries, and fraudulently obtained a $1.75 million bank loan for a Conference and Retreat Center for Shiloh Ministries.

Pro-Life Group Gets Non-Profit Status After IRS Questions

A press release issued yesterday by the Thomas More Society reports that the Internal Revenue Service has issued a Determination Letter granting Section 501(c)(3) tax exempt status to the newly formed Coalition for Life of Iowa. Earlier the IRS questioned the "educational" nature of the Coalition's materials, prayer meetings, talks and other Pro-Life activities. Apparently the IRS also suggested that in order to receive 501(c)(3) status, the Coalition had to agree to limit its "picketing" and "protesting" of Planned Parenthood. (See prior posting.) (Full text of IRS correspondence.) A legal memorandum on behalf or the Coalition argued that the IRS requests "come perilously close to violating the First Amendment constitutional rights of the Coalition's supporters...."

En Banc Rehearing Sought In Washinton State Pharmacy Board Conscience Case

Last week, a Washington state pharmacy filed a petition and an accompanying legal memorandum (full text) with the 9th Circuit Court of Appeals seeking an en banc rehearing in Stormans Inc. v. Selecky. Last month, a 3-judge panel in the case refused to preliminarily enjoin enforcement of Washington State Pharmacy Board regulations that require pharmacists to fill all prescriptions (including Plan B, the "morning after" contraceptive) even if doing so violates their religious beliefs. (See prior posting.) A press release from Becket Fund reports on the filing.

IRS Proposes Rules To Clarify Who May Authorize Church Audit

BNA Daily Report for Executives [subscription required] reports that the Internal Revenue Service, in proposed regulations that will be published in tomorrow's Federal Register, is attempting to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. [Full text of REG-112756-09 via BNA (subscription required)]. The Code section, in an attempt to obtain an objective appraisal of the need for this type of delicate examination, requires that a "reasonable belief" determination be made by an official whose "rank is no lower than that of a principal Internal Revenue officer for an internal revenue region." A 1998 IRS reorganization created confusion over who that official should be. In February, a Minnesota federal district court held that the Director of Exempt Organization Examinations was not a high enough official to satisfy the statutory requirement. (See prior posting.) The new regulations propose giving the authority to the Director of Exempt Organizations. BNA's Daily Report for Executives [subscription required] reports that there are likely to be many comments from the non-profit sector on the proposal.

UPDATE: Here is the full text of the proposal from the Aug. 5 Federal Register.

Virginia Saudi Academy Gets Zoning Exemption

Yesterday, by a vote of 6-4, the Fairfax County, Virginia, Board of Supervisors agreed to grant the Islamic Saudi Academy a zoning exemption so it can expand its second campus. The Washington Post reports that this will allow the school to eventually enroll 500 more students. Currently around 1000 attend, 80% of whom are U.S. citizens. The Academy is the only Saudi-government funded school in the U.S. It has revised its curriculum several times in recent years after high-profile criticism of references in textbooks to intolerance and violence. (See prior posting.) However the curriculum is still guided by Wahhabist ideas. (See prior related posting.)

Rabbi Pleads Guilty In Charitable Tax Fraud Scheme

The U.S. Attorney's Office for the Central District of California announced yesterday that a Brooklyn, New York rabbi has pled guilty to conspiring to obstruct the Internal Revenue Service by soliciting charitable donations with secret promises to refund up to 95% of the funds to the donors. Naftali Tzi Weisz, the Grand Rabbi in Boro Park of the Spinka Hasidic dynasty, along with several associates and five charitable organizations, were indicted in 2007 in the scheme under which donors falsely claimed the entire amount of their "donations" as tax deductions. Spinka realized over $744,000 from the scheme. Three of the donors have already pled guilty to tax evasion, and Weisz’s assistant, Gabbai Moshe E. Zigelman, has already been sentenced to 2 years in prison for his part in the conspiracy. Four California men who were part of the money laundering scheme were also scheduled to plead guilty yesterday.