2010 Census Again Will Not Count Overseas Mormon Missionaries

Sunday's Salt Lake (UT) Tribune reported that, as in past years, the 2010 census will not count the estimated 11,000 Mormon missionaries living overseas. The only individuals not in the U.S. who are counted by the census are federal civilian and military personnel and those on merchant vessels. A test in 2004 to determine the feasibility of counting other Americans overseas was unsuccessful. The issue is of great concern to the state of Utah. In the 2000 census, it would have been entitled to an additional seat in the House of Representatives if it had 857 more people. Instead that seat went to North Carolina, home of many military bases. Utah's court challenges to census procedures have failed. Utah v. Evans (Sup. Ct. 2002). Only Congressional legislation can change the Census Bureau's decision, and that is unlikely in time for next year's census. An alternative approach was part of the proposal earlier this year to give the District of Columbia a voting representative in the House of Representatives. The bill (S. 160) would also have awarded an additional seat to Utah. That bill, however, stalled in the House over attempts by some in Congress to use the bill to also invalidate most of D.C.'s firearms regulations. (Background.)

US Catholic Bishiops Unveil Health Care Reform Website; Oppose Abortion Coverage

The U.S. Conference of Catholic Bishops has created a new website on Health Care Reform. Zenit yesterday reported that the site includes letters from bishops to Congress, videos, statistics, FAQ's , and links to legislators. While the bishops view health care as a basic right, they raise concerns that it not become a vehicle for promoting abortion rights or reversing the present ban on federal funding of abortions. A letter on the website from Philadelphia's Cardinal Justin Rigali raises questions regarding the House bill, arguing that its provisions for individuals to pay an additional premium for plans that cover abortions has merely created a "legal fiction."

Sri Lanka Proposes Ban On Religious-Themed Political Parties

In Sri Lanka, in the wake of the government's victory in May in its 25-year civil war with the Tamil Tigers, President Mahinda Rajapaksa has proposed changes in the country's Parliamentary Elections Act. Aiming at small and regional political parties, he has proposed a ban on political parties whose names signify an ethnic or religious group. The Island today reports that the proposal calling for the Election Commissioner to deny legal recognition to such parties is an attempt to create a national identity in the multi-ethnic, multi-religious country.

Salvation Army Drug Treatment Employee Is Not State Actor

In Cain v. Caruso, 2009 U.S. Dist. LEXIS 70009 (ED MI, Aug. 11, 2009), a Michigan federal district court adopted the recommendations of a magistrate judge in lawsuit filed by a parolee who failed to complete his drug treatment program that was a condition of his parole. The magistrate judge, at 2009 U.S. Dist. LEXIS 71692 (July 23, 2009), recommended that defendant Margaret Tursak be found not to be a "state actor" in her position with a faith-based drug treatment program operated by the Salvation Army. Defendant Tursak separately raised the defense of qualified immunity. The magistrate judge rejected that defense, finding that the policies underlying qualified immunity do not extend to staff employed by a private drug treatment center.

Tensions Increase This Summer In Catskills Between Hasidim and Locals

Last week the Forward carried an article detailing tensions in Sullivan County, in New York's Catskill Mountains, between local residents and the Skver Hasidim, a Orthodox Jewish sect currently based in New Square, New York. In 2006, the Skvers bought the 450-acre former Homowack property which they initially operated as a summer resort for their members and operated this summer as a girls' camp. In 2007 the Skvers announced plans to invest tens of millions of dollars to turn the property into a new town, Kiryas Skver, as "a twin community to the current shtetl" of New Square which the group is outgrowing. The Skvers' purposely isolate themselves from outside culture to devote themselves to "traditional Torah values." This summer, however, the girls' camp that the Skvers were operating on the Homowack site was cited for numerous safety violations and ordered closed down by the Department of Health. The camp closed on Aug. 9. The Skvers were also charged by the Department of Environmental Conservation over an oil spill, and have a large back tax bill for failing to pay hotel occupany taxes in 2007 and 2008. All of this has increased tensions between the largely non-Jewish year-round residents of Sullivan County and the tens of thousands of Hasidim who visit the area each summer.

Pagan Group's Right To Use Park For Ceremony Is Questioned

KERO News yesterday reported on a confrontation of sorts that occurred in a Bakersfield, California park last week when a group of pagans chose the park to use for their harvest ritual. Ravens Folk Kindred, a group of Odinists, apparently frightened neighbors as they raised their tattooed arms into the air. Some of the onlookers thought they were white supremacists giving the Nazi salute. A park ranger and two sheriff's deputies arrived to investigate and initially told the group that they were breaking no laws. But later the ranger with 5 deputies returned to Standard Park and ordered the group to leave.

Appeal Filed In Challenge To Texas Agency's Neutrality on Creationism

Earlier this Spring, an appeal was filed with the U.S. 5th Circuit Court of Appeals in Comer v. Scott. In the case the district court had rejected an Establishment Clause challenge to a policy of the Texas Education Agency (TEA) that required its Director of Science to remain publicly neutral regarding the teaching of creationism. The Director, Christina Comer, was fired for forwarding to two listservs and seven science educators an announcement about an anti-Creationism talk that was being presented in Austin. (See prior posting.) In her appellate brief filed with the 5th Circuit on Aug. 5 (full text), Chris Comer argues that TEA's policy of equating creationism with science violates the Establishment Clause. The National Center for Science Education last week reported on the appeal.

Idaho Charter School Barred From Using Bible As Textbook

The Idaho Public Charter School Commission on Friday ruled that an Idaho charter school cannot use the Bible as one of its textbooks, according to the Idaho Press-Tribune. The Nampa Classical Academy had planned to use the Bible and other religious texts, but not to teach religion. The Commission said that Idaho's constitution expressly limits the use of religious texts. Art. IX, Sec. 6 of the state's constitution provides: "No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article...." The Alliance Defense Fund had filed a legal memorandum with the Commission arguing that the drafters of the Idaho constitution had not intended to preclude use of the Bible in schools. It argues that the framers did not consider the Bible to be a "sectarian" book. [Thanks to Blog from the Capitol for the lead.]

Nigerian Police Remove Muslim Sect Members From Compound

Concerned about a repeat of religious violence that occurred last month (see prior posting), authorities in Nigeria yesterday raided the compound of a Darul Islam sect in the central state of Niger and removed some 4000 members. AFP reported yesterday that 1500 police from Abuja carried out the operation after state officials expressed concern that the existence and activities of the sect in the town of Mokwa could cause a "religious crisis." The sect members were taken to a technical college building for questioning. Members of the sect did not resist and no weapons were found.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, The Establishment Clause and the 'Problem of the Church', (San Diego Legal Studies Paper No. 09-024, Aug. 5, 2009).
• Roberta F. Mann, Is Sharif's Castle Deductible?: Islam and the Tax Treatment of Mortgage Debt, (William & Mary Bill of Rights Journal, Vol. 17, pp. 1139-1169, 2009).
• Lauren E. Schroeder, The Rights of Muslim Women in the Middle East: A Pathfinder, (Islamic Law and Law of the Muslim World Paper No. 09-68, May 18, 2009).
• Aminu Adamu Bello, Binding Precedent and Shari'a/Islamic Law in Nigeria: An Attempt at a Civil-Criminal Distinction, (Islamic Law and Law of the Muslim World Paper No. 09-67, May 1, 2009).
• Paul Finkelman, School Vouchers, Thomas Jefferson, Roger Williams, and Protecting the Faithful: Warnings from the Eighteenth Century and the Seventeenth Century on the Danger of Establishments to Religious Communities, (2008 Brigham Young University Law Review 525).
• Michael J. Perry, Religious Freedom and Beyond: The Right to Moral Freedom, (Emory Public Law Research Paper No. 09-60, Aug. 10, 2009).
• Shelley Ross Saxer, Assessing RLUIPA's Application to Building Codes and Aesthetic Land Use Regulation, (Albany Government Law Review, Vol. 2, 2009).
• Robert J. Yetman & Michelle Yetman, Does the Incentive Effect of the Charitable Deduction Vary Across Charities?, (July 22, 2009).

Other recent articles:

• AALS Symposium on Institutional Pluralism: The Role of Religiously Affiliated Law Schools, 59 Journal of Legal Education 125-168 (2009).

Cape Cod Town Allows Prayer Station At Beach Parking Lot

Today's Cape Cod Times editorializes on a recent 4-0 decision by the Falmouth (MA) Board of Selectmen to allow four local churches to combine to set up a "prayer station" in the parking lot at Old Silver Beach in North Falmouth. Volunteers staffing the booth can only talk to those who approach them, and no solicitation or proselytizing is allowed. Observers question whether the town has now turned the parking lot into a public forum which all others must now also be permitted to use for speech activities.

Numerous New Prisoner Free Exercise Cases Have Become Available This Week

In Berryman v. Granholm, (6th Cir., Aug. 12, 2009), the U.S. 6th Circuit court of Appeals upheld a Michigan prison's suspension of plaintiff from its kosher meal program (with the ability to reapply after 60 days) after he ordered and signed for non-kosher food. He claimed he had done so for a non-Jewish fellow inmate. Friday's New York Times reported on the decision.

Shariff v. Coombe, 2009 U.S. Dist. LEXIS 69119 (SD NY, Aug. 7, 2009), is a case challenging various prison conditions impairing accessibility of disabled inmates in wheelchairs. Among the claims was one that plaintiffs' free exercise rights were infringed because of difficulties they encountered in using restrooms while attending religious services. The New York federal district court said it doubted that the claim would survive summary judgment, but ordered plaintiffs to brief the issue first.

In Littlejohn v. New York City Department of Corrections, 2009 U.S. Dist. LEXIS 69347 (SD NY, Aug. 7, 2009), a New York federal district court rejected plaintiff's free exercise challenge to restrictions on his attending religious services while in closed custody/ protective custody. It concluded that the detention center's policy allowing inmates in this situation to be visited twice per week by clergy was sufficient.

In Benson v. Corrections Corporation of America, 2009 U.S. Dist. LEXIS 69336 (ND OH, July 14, 2009), an Ohio federal magistrate judge recommended dismissal of claims by a Muslim inmate in federal custody that his free exercise and equal protection rights were infringed. Plaintiff complained that the meals offered Muslim prisoners do not contain Halal meat, but instead are either merely pork-free, or are vegetarian and fish.

In Copeland v. Livingston, 2009 U.S. Dist. LEXIS 69564 (ED TX, June 30, 2009), a Texas federal magistrate judge recommended dismissing as frivolous a lawsuit raising a variety of free exercise and RLUIPA claims by a Muslim prisoner. Among other things, plaintiff complained about disruption of a Muslim service by correctional officers, disciplinary action against him that denied him the right to attend Muslim services, requiring Muslim services to be held in a Christian chapel, the prison's refusal to allow minimum custody and medium custody prisoners to have joint religious services, failure to provide cleaning services for inmates' prayer rugs, and monitoring of Muslim services by recording them.

In Shields v. Skipper, 2009 U.S. Dist. LEXIS 69885 (D OR, Aug. 7, 2009), an Oregon federal district court rejected a claim by a former inmate that his free exercise rights and his rights under RLUIPA were infringed when he was denied access to a Native American religious clergyman.

In Harris v. Schriro, 2009 U.S. Dist. LEXIS 70180 (D AZ, Aug. 11, 2009), an Arizona federal district court dismissed a former inmate's challenge to the Arizona Department of Corrections kosher food policy. The court held that Plaintiff cannot bring individual or official-capacity damage claims under RLUIPA and the claims for injunctive relief are moot. It also rejected plaintiff's free exercise claims under which he sought modification of the kosher diet policy to require serving kosher food in its original package and serving uncut vegetables that have not been touched by prison staff. (See prior related posting.)

In Jacobs v. Strickland, 2009 U.S. Dist. LEXIS 70563 (SD OH, Aug. 11, 2009), an Ohio federal district court accepted a magistrate's recommendations and dismissed an inmate's claim that his rights as a Sunni Muslim had been violated at the former institution in which he had been housed. It held that damages are not available in official capacity RLUIPA suits. It also agreed with the magistrate that defendants had qualified immunity and that there was no allegation of involvement of the defendants in the alleged unlawful conduct. Finally it concluded that plaintiff's claim for an injunction and declaratory relief are moot.

In Vigil v. Jones, 2009 U.S. Dist. LEXIS 70749 (D CO, Aug. 4, 2009), a Colorado federal magistrate judge ordered a pro se plaintiff inmate who had broadly alleged interference with free exercise of his Judaeo-Christianity to file an amended complaint suing the proper parties and alleging specific facts.

In Jordan v. Keim, 2009 U.S. Dist. LEXIS 70881 (SD IL, Aug. 7, 2009), an Illinois federal district court rejected a free exercise and religious discrimination claim by a Hebrew Israelite prisoner. Prison authorities in 2002 denied his request to participate in the Feast of the Unleavened Bread. The prison chaplain erroneously ruled that plaintiff's request to participate was late because the chaplain had the wrong date for the beginning of the festival. The court held that the advance notice rule to apply for special holiday observances was permissible and that that there was no discriminatory intent involved in rejecting plaintiff's application as late.

In Willard v. Hobbs, 2009 U.S. Dist. LEXIS 71244 (ED AR, July 23, 2009), an Arkansas federal magistrate judge recommended rejecting a challenge under the equal protection clause, the free exercise clause and RLUIPA by a Wiccan inmate in maximum security who complained that he was denied sea salt, an altar cloth, a ritual feather, essential oils, a ritual bell, and a special notebook or binder for creating a "Book of Shadows."

In Young v. McNeil, 2009 U.S. Dist. LEXIS 70885 (ND FL, June 11, 2009), a Florida federal magistrate judge recommended rejecting an inmate's free exercise, 8th amendment and equal protection challenges to Florida Department of Corrections' total elimination of its Jewish Dietary Accommodation Program, requiring inmates who observe kosher restrictions to instead choose vegetarian or vegan meals. The opinion concluded that the state had shown legitimate budgetary, logistical and security concerns, as well as concerns over appearing to favor certain classes of inmates. Jewish inmates had alternative meal plans available that lessened the impact on their religious observance. (See prior related posting.)

In Majid v. Fischer, 2009 U.S. Dist. LEXIS 71616 (SD NY, July 31, 2009), a New York federal district court rejected inmates' free exercise, RLUIPA and equal protection claims objecting to the type of meals served to Muslim prisoners and failure to provide separate utensils. The court similarly rejected complaints regarding the closure of a portion of a mosque at New York's Green Haven Correctional Facility.

AP last week reported on a settlement in a case brought by a former Muslim prisoner against federal prison officials in Illinois charging that guards had placed his Quran on a spit-stained floor and had mistreated him when he complained to authorities. Former inmate Hakeem Shaheed, who spent nine years in federal prison, received $48,000 in the settlement.

Principal Chosen For NY Hebrew Language Charter School

The Forward earlier this week carried an interesting profile of Maureen Campbell, the principal of New York City's first Hebrew language charter school. Campbell attended Vassar, spent a semester at Oxford, and then graduated from Columbia University's Teachers College. Yeshiva Rambam School in southern Brooklyn continues to be the center of church-state questions as critics say it is an attempt to promote Jewish identity with public funding. Questions are intensified by the fact that the school is located in a building that also houses a synagogue. Campbell, who grew up in Manhattan’s Harlem area, the child of Jamaican immigrants, however is not Jewish and does not know Hebrew-- though she insists she is going to learn the language. A significant percentage of the school's entering students this year are children either of Israelis or of Russian Jews who live in Brooklyn's Sheepshead Bay and Brighton Beach areas.

EEOC Sues Puerto Rico Hospital Claiming Religious Discrimination

The EEOC announced on Thursday that it has filed a religious discrimination lawsuit against Puerto Rico’s largest medical center, Hospital Auxilio Mutuo. The hospital refused to accommodate a male registered nurse whose Santeria religious beliefs requires him to wear his hair long. EEOC alleges that the hospital suspended the male nurse, even though it allows women nurses to wear their hair in any length.

Hamas Fights Islamist Group In Gaza Over Declaration of "Islamic Emirate"

Jerusalem Post reports that fighting today in the Gaza Strip between Hamas forces and the radical Islamist group Jund Ansar Allah killed 5 and wounded at least 50. The fighting, which began near a mosque in Rafah, was triggered when Islamist leader Abdel-Latif Moussa (also known by his nom de guerre, Abu al-Nour al-Maqdessi) declared "the birth of the Islamic Emirate" in Gaza. Jund Ansar Allah apparently has links to Al Qaida. Islamists seeking to impose shariah law in Gaza are increasingly challenging Hamas, whose goals are more nationalistic than religious. The Hamas's Interior Ministry described Maqdessi as "crazy."

UPDATE: When the fighting between Hamas and Jund Ansar Allah finally came to an end on Saturday, 24 people had been killed according to Haaretz. Among the dead was Jund Ansar Allah leader Abdel-Latif Moussa whose explosive vest went off killing him and a Hamas negotiator during a stand off at Moussa's home. Also killed in the fighting was Hamas official, Abu Jibril Shimali, whom Israel said was responsible for the high-profile capture three years ago of Gilad Shalit, who is still being held by Hamas.

Court Dismisses Civil Rights Claim Against Mormon Church By FLDS Member

In Cooke v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2009 U.S. Dist. LEXIS 70192 (D AZ, Aug. 11, 2009), a member of the FLDS Church filed a federal civil rights action against the mainstream Church of Jesus Christ of Latter Day Saints claiming that it acted in collusion with the states of Arizona and Utah to engage in religious persecution of the FLDS Church. Plaintiff's amended complaint alleges in part that "[t]he Mormon Church has used the state of Utah [to conduct a] religious war against Warren Jeffs and his people," has "launched a successful media campaign to label us child abusers and polygamists," and "labled [sic] Warren Jeffs a terrorist [and] taken away our homes and our property."

While rejecting a res judicata defense, the Arizona federal district court dismissed plaintiff's complaint for failure to state a claim under 42 USC Sec. 1983. It found that, under the Iqbal standard, plaintiff has not plausibly alleged facts showing that the Latter Day Saints church was involved with state officials in a way that made it a state actor. However, the court indicated that plaintiff could still file an amended complaint to cure his pleading deficiencies.

British Borough Council Warns of Health Dangers In Purported Muslim Holy Water

In Britain, the London borough of Wandsworth's Council on Wednesday issued a public health alert warning Muslims of imitation holy water containing potentially lethal concentrations of arsenic. Sellers in the area claim that the bottled water comes from the holy Well of Zam Zam in Mecca. However Saudi Arabia has banned the commercial export of Zam Zam water. Yesterday's Wandsworth Guardian reported that tests showed the water, being sold in the Tooting area of London, contains twice the permissible level of arsenic and three times the permitted level of nitrates. This can be particularly harmful for children and pregnant women.

Court Rejects Challenge To Recitation of Pledge By Judge

Missouri's attorney general, Chris Koster, released a statement on July 30 praising a decision by the St. Francois County (MO) Circuit Court to dismiss a lawsuit challenging another judge's practice of opening his courtroom session with the recitation of the Pledge of Allegiance. The lawsuit unsuccessfully alleged that the practice of Washington County (MO) Judge Kenneth Pratte, inviting those in the courtroom to remain standing for the Pledge, violates the Establishment Clause as well as free speech rights.

Muslim Group Sues Portland, Maine Over Zoning Restrictions

The Maine Civil Liberties Union announced yesterday that it has filed suit on behalf of the Portland Masjid and Islamic Center, challenging the city of Portland's zoning determination that a group of Afghani Muslims may not use a former television repair shop they purchased as a site for prayer services and religious study. The MCLU says that the Religious Land Use and Institutionalized Persons Act trumps the city's zoning restrictions, pointing out that there are already eight churches within one mile of the Islamic Center's property-- none of which had to meet the heightened zoning requirements now being applied.

UPDATE: WCSH6 News reported on Aug. 17 that the city and the Islamic Center have reached an agreement that the former TV repair shop can be used for religious purposes while the lawsuit moves forward. The agreement comes in time for the start of Ramadan on Friday. Talks will continue between the two parties over possible zoning law changes.

Italian Court Bars School Favoritism For Courses In Catholicism

In Italy, an Administrative Tribunal in the district of Lazio (which includes Rome) has ruled that schools may no longer give credit for students who study Catholicism during public school "religion hours,"since schools deny academic credit to students who study other religions. JTA reported yesterday that the ruling came in a lawsuit filed by 24 secular and non-Catholic religious groups. Church leaders and some politicians have sharply criticized the court's ruling. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]