Christian Group Creates "Adopt a Liberal" Initiative

Liberty Counsel (a Christian advocacy group) has begun a "prayer in action" initiative it calls "Adopt a Liberal." It is hoping to change the minds of political leaders it sees as "misguided". The initiative calls on participants to pick one of the eleven liberals on Liberty Counsel's list, or to choose some other liberal leader, and then:

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy....

Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Woman's Caning Sentence Upheld On Appeal In Malaysia

In Malaysia, apparently a controversial sentence of a Muslim woman for drinking alcohol is back on track. Last month Kartika Sari Dewi Shukarno became the first woman to be sentenced under the country's Islamic law to caning for drinking alcohol. When she defiantly asked that her punishment be carried out in public, the sentence was delayed because of Ramadan and to allow for a government appeal after objections from activists. (See prior posting.) Now, according to AP, the chief Shariah judge of Pahang state has ruled that the lower court acted in accordance with law. It is now up to the Pahang Islamic Religious Department to carry out the largely symbolic caning.

Victoria Government Agrees To Broad Religious Exemptions In Discrimination Law

In the Australian state of Victoria, the attorney general has pre-empted a parliamentary committee and has announced an agreement with religious groups (including churches, schools, hospitals and welfare services) that will modify current law but still grant them broad exemptions from anti-discrimination prohibitions. According to The Age yesterday, the compromise permits religious groups to discriminate in employment and the furnishing of services on the basis of sex, sexuality, marital and parental status and gender identity, so long as they demonstrate how the discrimination relates to their religious doctrines. Thus conservative religious schools can refuse to hire single mothers or gays even for non-teaching positions, and Islamic groups can refuse to employ Christians. However religious groups will be barred from discriminating on the basis of race, disability, age, physical features, political beliefs or activity, or breastfeeding.

2010 National Religious Moot Court Announced

George Washington University Law School has announced the 2010 National Religious Freedom Moot Court to be held February 5-6, 2010 in Washington, DC. This year's problem involves free exercise issues in decisions of a local police department to regulate the activities and the dress of a police officer. The competition is open to students from ABA-accredited law schools. Registration extends until November 6, 2009.

Recent Articles and Books of Interest

From SSRN:

• Jeffrey M. Lipshaw, Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief, (Suffolk University Law School Research Paper Series, Sept. 27, 2009).
• Mostapha Benhenda, Liberal Democracy and Political Islam: The Search for Common Ground, Politics, Philosophy & Economics, Forthcoming).
• Umar Aimhanosi Oseni, Towards the Effective Legal Regulation of Waqf in Nigeria: Problems and Prospects, (September 25, 2009).

From SmartCILP:

• Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law & Litigation 119-164 (2009).
• Chad G. Marzen, The Role of Custom in Canon, Jewish, and Islamic Law: Supplemented, Superseded, or Supplanted by Written Law?, 35 Ohio Northern University Law Review 813-827 (2009).
• Anne Orford, Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect, 30 Michigan Journal of International Law 981-1015 (2009).
• Nicholas C. Rigano, Fraudulent Conveyance Law: Destroying Free Exercise Rights at a Church Near You, 17 American Bankruptcy Institute Law Review 165-187 (2009).

Recent Books:

• Anne Marie Lofaso, Religion in the Public Schools: A Road Map for Avoiding Lawsuits and Respecting Parents' Legal Rights (Americans United for Separation of Church & State, 2009), reviewed on AU's website. [Link is to full text of book.]
• David Nash (ed.), Blasphemy in Britain and America 1800-1930, (4 vols.) (Pickering & Chatto Publishers, forthcoming April 2010).

China Issues New Report on Its Ethnic Policy-- Claims Religious Freedom

The Chinese government today issued a White Paper titled China's Ethnic Policy and Common Prosperity and Development of All Ethnic Groups. The Xinhua news agency carries a series of reports on the White Paper. Summarizing the report's findings on religious freedom, Xinhua says:

Freedom of religious belief in China means that every citizen has the freedom to believe or not to believe in any religion," said the white paper issued by the Information office of the State Council.... [A]ll normal religious activities, including those of ethnic minorities, are protected by law.... Venues for religious activities are found all over China, basically satisfying the needs of religious believers.... [T]he Chinese government also helps religious groups build seminaries to train clergymen of ethnic minorities, subsidizes the repairs of some religious venues in minority areas, and gives allowances to poor religious believers of ethnic minorities, according to the white paper.

The White Paper comes in the wake of a letter earlier this month (full text) from two members of the U.S. House of Representatives to Jon Huntsman, the new U.S. ambassador to China, raising concerns about reported plans by China to take new steps against "house churches" leading up to the Oct. 1 marking of the 60th anniversary of Communist Party rule in China. (Christian Post, Sept. 10.)

Illinois Supreme Court Says Limitiations Extension Cannot Be Applied Retroactively

In Doe v. Diocese of Dallas, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court refused to apply retroactively a 2003 amendment to Illinois law extending the statute of limitations in civil actions alleging child sexual abuse. The suit was filed by plaintiff who had been abused by a Catholic priest when he was 14 years old. However under prior law, the statute of limitations had run on his claim before the 2003 amendments took effect. The court concluded that even though the legislature had intended for the amended statute of limitations to apply retroactively: "once a claim is time barred, it cannot be revived through subsequent legislative action without offending the due process protections of our state's constitution." Friday's Belleville (IL) News-Democrat reported on the decision.

Recent Prisoner Free Exercise Cases

In May v. Donneli, 2009 U.S. Dist. LEXIS 85495 (ND NY, Aug. 25, 2009), a New York federal magistrate judge held that merely a loss of a few pounds was insufficient physical injury to justify a claim for compensatory damages under the Prison Litigation Reform Act that precludes compensatory damages for emotional injury unaccompanied by physical injury. In the case, a prisoner asserted that for seven days of Ramadan he was precluded from breaking the fast with blessed food. The court also held that a damage claim under the NY Corrections Law had to be brought in the state court of claims.

In Davis v. Hightower, 2009 U.S. Dist. LEXIS 85505 (ND FL, July 13, 2009), a federal magistrate judge recommended rejection of a Wiccan inmate's claim that his free exercise rights were infringed when authorities confiscated 9 "religious healing stones" from his property which he used to help heal his peptic ulcer.

Mauwee v. Donat, 2009 U.S. Dist. LEXIS 86148 (D NV, Sept. 18, 2009), involved claims that prison officials desecrated the prison's sweat lodge area by allowing non-Indians to use it. A Nevada federal district court concluded that damage claims are not permitted under RLUIPA and that plaintiffs' claim for equitable relief was precluded by qualified immunity. It also concluded that objections to changes in sweat lodge procedures were now moot since those changes had been rescinded. The magistrate's recommended findings in the case are at 2009 U.S. Dist. LEXIS 86141 (May 28, 2009).

In Kinney v. Curtin, 2009 U.S. Dist. LEXIS 86225 (WD MI, July 29, 2009), and in Thomas v. Bergh, 2009 U.S. Dist. LEXIS 86893 (WD MI, Aug. 21, 2009), a Michigan federal magistrate judge recommended that the court uphold decisions to deny plaintiffs participation in their prison's kosher food program because plaintiff had not shown that his beliefs were sincerely held.

In Parks v. Smith, 2009 U.S. Dist. LEXIS 87147 (ND NY, Sept. 23, 2009), a New York federal district court accepted most of the magistrate's recommendations (2009 U.S. Dist. LEXIS 87210, Aug. 17, 2009) allowing a Jehovah's Witness inmate to move ahead with his claim that authorities violated his free exercise rights and his rights under RLUIPA when they disciplined him for attempting to mail a photograph of himself in a meditation pose to a company for use in a personal ad. Prison authorities claim that the pose is in fact a gang signal. The court rejected the magistrate's holding that plaintiff's free exercise and retaliation claims were duplicative. He might be able to show retaliation based on religion even if he did not succeed in his claim that his rights were infringed when authorities classified his meditation pose as a gang signal.

In Strope v. McKune, 2009 U.S. Dist. LEXIS 86886 (D KS, Sept. 22, 2009) and Strope v. Cummings, 2009 U.S. Dist. LEXIS 86885 (D KS, Sept. 22, 2009), a Kansas federal district court rejected claims that Assembly of Yahweh inmates were not given adequate time for worship. It also rejected claims that certain foods served to those on the kosher diet were routinely spoiled, and that other foods were not included. UPDATE: The 10th Circuit affirmed (June 11, 2010).

In Shepard v. Peryam, 2009 U.S. Dist. LEXIS 87189 (SD FL, Aug. 20, 2009), a Florida federal magistrate judge recommended that the court reject claims by a Muslim pre-trial detainee that he was denied religious services, prayer beads, a prayer rug, a Kufi (prayer cap), and a Kosher diet.

In Floyd v. Leslie, 2009 U.S. Dist. LEXIS 87758 (ND IN, Sept. 23, 2009), and Indiana federal district court allowed an inmate to move ahead with his complaint that a prison officer denied him access to Satanist religious material that belonged to him, but the court dismissed plaintiff's claim against the prison's chaplain.

In Jenkins v. Vail, 2009 U.S. Dist. LEXIS 87730 (ED WA, Aug. 31, 2009), a federal district court (rejecting a magistrate's recommendations, 2009 U.S. Dist. LEXIS 87769, July 22, 2009) refused to grant a preliminary injunction to a Muslim inmate who would not participate in work or educational programming on the ground that his sincerely held religious beliefs prevent him from supporting a non-Islamic government.

Moorish American Corrections Officers Can Move Ahead With Discrimination Allegations

Bey v. City of New York, 2009 U.S. Dist. LEXIS 87793 (SDNY, Sept. 9, 2009), is a lawsuit brought by a group of former New York City correction officers who were members of the Moorish American faith which teaches that Moors are exempt from taxation. They were terminated from their positions after hearings at which it was found that they had submitted false documents claiming to be tax exempt. They then sued, arguing that others of different faiths who had submitted false tax forms received less severe discipline. The court allowed certain of the plaintiffs to move ahead with equal protection and Establishment Clause claims, finding that "there remains a triable issue of fact as to whether Defendants' explanation for Plaintiffs' harsher treatment - that they persisted in their assertion of tax exempt status and failed to take affirmative steps to repay their taxes - is pretextual and whether, in fact, the Moors were singled out for harsher treatment based on their religion."

Guardian Ad Litem Has Immunity As To Comments On Mother's Religious Views

In Wood v. Epley, 2009 U.S. Dist. LEXIS 87490 (SD OH, Sept. 9, 2009), an Ohio federal magistrate judge recommended dismissing as frivolous a lawsuit brought by Kyra Wood seeking $40 million in damages from an attorney who was appointed guardian ad litem by a state juvenile court to represent the interests of her daughter. Wood alleged that she was deprived of her free exercise rights because of unflattering comments the guardian ad litem made to the court about her religious expression. The court said that the guardian ad litem has absolute immunity from liability growing out of his testimony as to what he believes are in the best interest of the Wood's daughter.

Christian Group Complains About Ganesh Statue At Calgary Zoo

In Canada, the publicly funded Calgary Zoo some two years ago put up a statue of the Hindu deity Ganesh-- a figure with an elephant head-- near the zoo's elephant display. An anonymous donor supplied funds for the statue in memory of her late father who worked and travelled extensively in Asia. According to yesterday's Calgary Herald, Concerned Christians Canada wrote the zoo this week complaining about the statue. The letter (full text) said: "The zoo is not a place of religious indoctrination, it is supposed to be a safe family environment free of religious icons and selective religious partiality." A zoo spokesman, however, says that the statue is a cultural symbol that shows the tie between the elephants and Asian culture. [Thanks to Scott Mange for the lead.]

Christian Reformed Church Gets Title To Property Over Breakaway Congregation

In Lamont Community Church v. Lamont Christian Reformed Church, (MI Ct. App., Sept. 22, 2009), a Michigan appellate court held that the Christian Reformed Church in North America is a hierarchical denomination, and therefore that civil courts are required to honor the determinations made by the denomination's parent body in resolving a property dispute between it and a break away congregation. Here the denomination, through its Zeeland Classis, determined that the congregation had no authority to transfer congregational property to a new entity without the consent of its regional Classis. The congregation argued that the denomination's rule governing the procedure to be used to determine ownership of property when a congregation disaffiliates did not take effect until after it had transferred its property. The court, however, said it was bound by the denomination’s determination that the rule took effect before the transfer at issue. [Thanks to Brian D. Wassom for the lead.]

Hasidic Congregation Gets Reversal of Damage Award, But Loses On Other Issues

This week, a New York appellate court handed down a decision in a dispute between two neighboring Orthodox Jewish congregations in Kiryas Joel (NY), a town populated primarily by members of the Satmar Hasidic community. A bit or reading between the lines is necessary to understand the disputes that were ruled on by the court in Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, (NY App. Div., Sept. 22, 2009). (It is not clear whether this case is part of a larger leadership battle within the Satmar movement.)

It appears that originally the 3,000-member Congregation Yetev Lev ("CYL") owned a synagogue building, surrounding parking lots and a nearby residence that was used as living quarters by its rabbi. In some fashion, Bais Yoel Ohel Feige ("BYOF") took ownership of the residence and began to use it as a synagogue. It also filed a suit under Art. 15 of New York's Real Property Actions & Proceedings Law to confirm its ownership of the premises. CYL brought several counterclaims. One asserted that BYOF's use of the property violated the town's zoning code. The appellate court agreed and upheld a trial court's injunction because the zoning code, as amended in 2007, requires a site plan review by the Village Zoning Board for operating a place of worship in a residence.

The appellate court however reversed the trial court's award of nearly $745,000 in damages on another counterclaim by CYL which complained that individuals attending services at BYOF had continuously used CYL's parking area. The appellate court concluded that there was no evidence that BYOF had instructed its members where to park and that, in any event, CYL had not put up signs attempting to restrict who could use its lots. Also testimony as to how many BYOF members parked there was speculative. Finally the appellate court held that CYL retained an implied easement to access the basement and roof of the residence area to install and repair water, sewer and utility lines and HVAC equipment that apparently served CYL's building. [Thanks to Y.Y. Landa for the lead.]

Religious Groups Active On Several Issues At G-20

Religious groups have been active at the G-20 Summit in Pittsburgh. Yesterday 30 religious leaders from numerous faiths met with U.S. deputy national security adviser Michael Froman urging action on problems faced by the world's poorest people. (Pittsburgh Post-Gazette.) Also yesterday morning more than 100 people gathered in one area of Pittsburgh to call for China to allow freedom to practice Falun Gong, while in another area of the city 15 Burmese monks and about 40 supporters protested human rights conditions in Myanmar. (Beliefnet News.) [Thanks to Insitute on Religion & Public Policy for the leads.]

4th Circuit Says Westboro's "Utterly Distasteful" Picketing Is Protected By 1st Amendment

In Snyder v. Phelps, (4th Cir., Sept. 24, 2009), the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder violated their free speech rights. Westboro Baptist Church members have gained notoriety for their picketing of veterans' funerals carrying signs attacking America's acceptance of gays. Here Snyder's father claimed that the picketing and a related Internet posting amounted to an invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. The majority held that defendants' picket signs, while "utterly distasteful" nevertheless involve matters of public concern including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.

The court held that additionally no reasonable reader could interpret any of the signs, or the Internet posting, as asserting actual and objectively verifiable facts about Snyder or his son. They are merely "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants are concerned." Judge Shedd, concurring in the judgment, would have avoided the constitutional issue by holding that Snyder failed to introduce sufficient evidence at trial to support the jury verdict in his favor.

Today's Baltimore Sun reports on the decision and reactions to it. Meanwhile this week Westboro members began a campaign to picket synagogues in Brooklyn, New York just before Yom Kippur. Westboro spokesperson Shirley Phelps-Roper told the The Brooklyn Paper that their efforts could be seen as an "obey your God rally." Also, last week, just before Rosh Hashanah, Westboro picketers turned up outside the University of Oklahoma's Hillel Foundation. According to the AP, Phelps-Roper said the church stopped there as part of a "love campaign" to critize Jews for "killing Christ."

Capitol Visitor Center Hosts Premiere of Film On Religion In America

Last December the U.S. Capitol Visitor Center opened amidst protests from conservatives (including former House Speaker Newt Gingrich) that it failed to appropriately honor America's religious heritage. (See prior posting.) This led to Congressional resolutions directing the Architect of the Capitol to engrave the motto "In God We Trust" on a large pillar in the Visitor Center, and a lawsuit being filed challenging that directive. (See prior posting.) According to Politcio, despite the lawsuit, work on the engraving began this week and tonight at the Visitor Center former Speaker Gingrich hosts the premiere of his documentary — Rediscovering God in America II: Our Heritage. The film explores the role of religion in early American history.

This Sunday Is Second "Pulpit Freedom Sunday"

Alliance Defense Fund announced yesterday that its second annual Pulpit Freedom Sunday will be held on September 27. The event is part of ADF's Pulpit Initiative which is designed to challenge the constitutionality of Internal Revenue Code provisions barring partisan electoral activity by Section 501(c)(3) non-profits, including churches. This year more than 80 pastors will preach sermons related to biblical perspectives on the positions of electoral candidates or current government officials who are not involved in election contests. ADF has posted legal resources for participating churches. Last year some critics charged that ADF was in violation of ethical rules binding on lawyers who practice before the IRS by encouraging churches to violate the tax code. (See prior posting.) ADF this year makes clear that there is no legal problem with pastors speaking from the pulpit about current government officials who are not presently candidates for elective office. ADF complains that "the IRS has issued increasingly vague guidance on the law, which limits the First Amendment rights of pastors speaking from the pulpit, but has continued to launch investigations while avoiding court review of the constitutionality of its actions."

UPDATE: ADF reports that 83 churches from 30 states and D.C. participated in the 2009 Pulpit Sunday.

Court Dismisses Prof's Dismissal Complaint Under Ecclesiastical Abstention Doctrine

Earlier this week, an Ohio trial court held that under the ecclesiastical abstention doctrine it could not decide a breach of contract claim (full text of complaint) brought by David Hoffeditz, a Professor of Bible and Greek, against Cedarville University, a Baptist college. Yesterday's Chronicle of Higher Education reports that Greene County Common Pleas judge J. Timothy Campbell concluded that he could not decide whether the tenured associate professor's dismissal was for just cause without examining matters of religious doctrine. The First Amendment precludes such an inquiry. The court however refused to dismiss Hoffeditz's claim that the University committed fraud by extending his contract into the 2007-8 academic year without telling him it had already decided to dismiss him once its academic accreditation process was completed. Extensive documents related to the case are posted on a website title The Cedarville Situation.

Illinois High Court Upholds Bequest To Grandson Who Married Within the Faith

In In re Estate of Max Feinberg, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court, by narrowly defining the issue before it, upheld the result desired by Max Feinberg who wanted to leave his estate only to those of his grandchildren who married within the Jewish faith. Four of his five grandchildren married non-Jews, and one of them contested the testamentary provisions that disinherited her. The state Court of Appeals upheld her challenge on public policy grounds. (See prior posting.)

The Supreme Court, however, focused on the fact that Feinberg's wife exercised a power of appointment she had been given under the terms of her husband's testamentary trust. She had directed that upon her death her two children and the grandson who had then married within the faith receive the assets that were currently in trusts. This eliminated many of the hypothetical concerns that had influenced the Court of Appeals' decision and eliminated any influence on future marital decisions of potential beneficiaries. No "dead hand" controlled the future conduct of beneficiaries because the wife locked in the identity of the beneficiaries by making a bequest "to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished."

The Supreme Court also rejected constitutional claims, saying:

Because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.

AP reports on the decision and gives additional background.

Funeral Director Loses On Most of Her Religious Discrimination Claims

In Prise v. Alderwoods Group, Inc., 2009 U.S. Dist. LEXIS 86445 (WD PA, Spet. 21, 2009), a Pennsylvania federal district court dismissed religious discrimination claims under Title VII of the 1964 Civil Rights Act and the Pennsylvania Human Relations Act. Funeral director Deborah Prise was placed on paid leave and then fired as manager of the Hirsch Funeral Home . She claimed the actions against her involved employment discrimination on the basis of religion. The court, however, concluded that the actions stemmed from the fact that Prise was attempting to run Hirsch Funeral Home in strict accordance with Jewish law, and that her superiors wanted to accommodate the needs of non-Jewish customers even when doing so would contravene Jewish law. The court also rejected Prise's failure to accommodate claim, finding that at most the funeral home merely refused to give her an absolute guarantee that she would never be required to work on the Jewish Sabbath or Jewish holidays. The court, however, permitted Prise to move ahead with her claims of retaliation for filing her discrimination complaints with the EEOC and the Pennsylvania Human Relations Commission, finding that factual questions remained as to those charges.