TSA Says Sukkot Items OK On Planes

The Jewish holiday of Sukkot began last Friday night. The Transportation Security Administration notified its airport screeners last week that travellers are allowed to carry onto planes the traditional lulav and etrog that are used as part of the observance of the holiday. The TSA notice read in part:

Observant Jewish travelers may carry four plants – a palm branch, myrtle twigs, willow twigs, and a citron – in airports and through security checkpoints. These plants are religious articles and may be carried either separately or as a bundle. Jewish travelers may be observed in prayer, shaking the bundle of plants in six directions. The workforce should note that TSA’s screening procedures do not prohibit the carrying of such agricultural items through the airport or security checkpoints, or on airplanes.

Top Egyptian Cleric Will Ban Niqab At al-Azhar

Egypt's top cleric, Mohammed Sayyed Tantawi, plans to ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. AP reported yesterday that the decision is part of the government's security campaign to restrict increasingly open manifestations of ultraconservative Islam in Egypt. al-Azhar's scholars agree that the niqab is not a religious requirement. Some critics say, however, that it is unlikely that a ban would be enforced.

Tennessee ACLU Issues New Guide On Religion In Schools

ACLU of Tennessee last week sent 137 public school superintendents across the state its new guide: Know Your Rights: Religion in Public Schools – A Guide for Administrators and Teachers. The ACLU's press release also linked to the letter that was part of the mailing to school districts. Packed into the new 4-page guide is the ACLU's interpretition of the state of the law relating to school prayer (in class, at graduation, at sporting events, board meetings and elsewhere), to the pledge of alliegance, distribtuion of Gideon Bibles, equal access rules, holiday celebrations and "See You At the Pole" events.

Saudi King Removes Cleric Who Challenged New University's Liberalized Policies

Last month, Saudi Arabia's King Abdullah University for Science and Technology (KAUST) was dedicated. (See prior posting.) Long the dream of King Abdullah, KAUST is a co-educational graduate university, freed somewhat from the religious influences that dominate in other Saudi universities. Nipping a challenge to the University in the bud, Sunday King Abdullah issued a royal decree removing Sheikh Saad al Shethri from the Council of Senior Islamic Scholars, according to UAE's The National. Shethri, a young university professor who was just appointed to the Council this year, drew criticism from liberal media after his recent appearance on al Majad Islamic TV. In that appearance he questioned the appropriateness of co-education at KAUST and called for a Sharia committee to monitor the KAUST curriculum for its compatibility Islamic law.

UN Human Rights Council Passes Compromise Resolution On Freedom of Expression

CNS News reports that on Friday the United Nations Human Rights Council unanimously adopted a compromise resolution on freedom of opinion and expression that had been proposed by the United States and Egypt. (Full text of Oct. 12 version accessible from this page) [updated]. The resolution omits the controversial term "defamation of religion," which the Organization of the Islamic Conference had pushed through in resolutions adopted in previous years. (See prior posting.) Instead it included a paragraph that each side has chosen to interpret differently. In the relevant language in the resolution [updated], the Council:

Reaffirms ... the right of everyone to hold opinions without interference, as well as the right to freedom of expression, including ... the intrinsically linked rights to freedom of thought, conscience and religion....

Also expresses its concern that incidents of racial and religious intolerance, discrimination and related violence, as well as of negative racial and religious stereotyping continue to rise around the world, and condemns, in this context, any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence, and urges States to take effective measures, consistent with their obligations under international human rights law, to address and combat such incidents

CNS News reports on the varying interpretations of and reactions to the compromise language:

Speaking on behalf of the European Union, French representative Jean-Baptiste Mattei said the language about stereotyping referred to the stereotyping of individuals, not religions, ideologies or abstract values. Human rights laws do not and should not protect belief systems, he said, stressing that the E.U. continued to reject the concept of defamation of religion.

But Pakistan’s Zamir Akram, speaking for the OIC, used the terms "negative stereotyping" and "defamation of religions" interchangeably, and said the phenomenon affected not only individuals but also religions and belief systems.

Article 19, a free speech organization, called the vote on the resolution a breakthrough, given the tensions that have marked discussions on the issue at the U.N.’s human rights bodies. Executive director Agnes Callamard noted in particular the omission of the term "defamation of religion," although she said "religious stereotyping" was a vague concept that suggested that religions and religious ideas and symbols, rather than religious adherents, may be protected by international human rights law.

The Becket Fund for Religious Liberty, a leading opponent of the religious "defamation" push, said the resolution passed Friday was a step in the right direction but still contained problematic language. "This resolution will be seen as a victory if it is the death knell for the concept of 'defamation of religions,'" said advocacy officer L. Bennett Graham. "But if it continues to provide international cover for overbroad anti-blasphemy laws around the world, it will only exacerbate the problem."

Some however had a less sanguine view of the compromise language, such as this article from The Weekly Standard, and this somewhat less strident but still negative reaction from Eugene Volokh.

Christian Conservatives Opposing Feldblum's Nomination To EEOC

An article today by Bill Berkowitz at BuzzFlash says that Christian conservatives are mounting a campaign to oppose confirmation of Chai R. Feldblum who has been nominated to the EEOC by President Obama. (See prior posting.) Feldblum is the first openly gay or lesbian person to be nominated for the EEOC. An article on the Traditional Values Coalition website opposing Feldblum is titled: "If You Hate America You Have a Lawyer — Chai Feldblum." Feldblum, a professor at Georgetown Law School, founded the Moral Values Project, dedicated to making a moral case for sexual and gender equity.

Saudi Religious Police Will Add Human Rights Unit

ANI reports today that Saudi Arabia's religious police, the Commission for the Promotion of Virtue and the Prevention of Vice, is setting up a new human rights unit to deal with human rights "in accord with just Islamic principles and international rights treaties." This is part of a broader restructuring of the Commission. However human rights activists call the move a hypocritical attempt to deal with the Commission's tarnished image and increased scrutiny of it by human rights organizations.

Military Critic Sues Former Chaplain Alleging Threats

Today's Dallas Morning News reports on a lawsuit filed by Mikey Weinstein, founder of the Military Religious Freedom Foundation, against former Navy chaplain Gordon Klingenschmitt, Jim Ammerman and Ammerman's Chaplaincy of Full Gospel Churches. Weinstein says that they are conspiring to encourage violence against him. The complaint (full text) in Weinstein v. Ammerman, (Dallas Co. TX Dist. Ct., filed 9/23/2009), alleges that Klingenschmitt, on behalf of Ammerman and CFGC, is using "imprecatory prayers" -- Biblical code-- to urge his followers to commit acts of violence against Weinstein. It claims that CFGC "is a front for anti-government extremists" who fear the U.S. is planning to turn its sovereignty over to the United Nations. The lawsuit seeks damages and an injunction, alleging violation of Texas Penal Code Sec. 22.07 that bans terroristic threats, and also alleging intentional infliction of emotional distress.

American Evangelist Turned Away From Britain Over Visa Problem

Britain has changed its rules on the entry of religious workers into the country, and the change last week prevented American evangelist Benny Hinn from entering to conduct his annual three-day "Fire Conference and Miracle Service." Yesterday's Times Online reports that Border Agency officials turned Hinn's private jet away at two different airports because he did not have a "letter of sponsorship" from a church as required by the Tier 5- Temporary Workers- Religious Workers requirements that came into effect last November. Thousands had come to London for Hinn's mission at the ExCeL exhibition centre, and were surprised when he did not appear. According to a posting on the Benny Hinn Ministry website, Hinn did end up addressing the conference via satellite link. It blames the problem on British lawyers who did not properly interpret Britain's new visa requirements. Plans are under way for Hinn to obtain a visa and return to Britain. [Thanks to Scott Mange for the lead.]

Recent Articles, Book and Video of Interest

From SSRN:

• C. Scott Pryor, Principled Pluralism and Contract Remedies, (McGeorge Law Review, Vol. 40, No. 3, 2009).
• Lyman P. Q. Johnson, Counter-Narrative in Corporate Law: Saints and Sinners, Apostles and Epistles, (Michigan State Law Review, Forthcoming).
• Dana Brakman Reiser, Charity Law’s Essentials, (Brooklyn Law School, Legal Studies Paper No. 167, Sept. 28, 2009).

From SmartCILP and elsewhere:

• Nehaluddin Ahmad, The Modern Concept of Secularism and Islamic Jurisprudence: A Comparative Analysis, 15 Annual Survey Of International & Comparative Law 75-105 (2009).
• Paul Horwitz, Demographics and Distrust: the Eleventh Circuit on Graduation Prayer in Adler v. Duval County, 63 University of Miami Law Review 835-892 (2009).
• Symposium: Constitutionalism and Secularism in an Age of Religious Revival: The Challenge of Global and Local Fundamentalisms, 30 Cardozo Law Review 2331- 2896 (June 2009).
  

Recent Book:

• Steven H. Shiffrin, The Religious Left and Church-State Relations, (Princeton Univ. Press, 2009).

New Video:

• Citizens United Productions, Rediscovering God in America II: Our Heritage, (2009), reviewed in CNS News.

Native Hawaiian Cultural Practitioners Challenge Land Management Plan

In Hawaii, a group of Native Hawaiian cultural practitioners, conservationists and others have filed suit in state court seeking to force the state's Board of Land and Natural Resources to grant them a hearing to challenge the Mauna Kea Comprehensive Management Plan that was adopted in April. Big Island Video News reported Friday that the lawsuit claims Hawaiian law has recognized the role of Native Hawaiians in protecting natural and cultural resources. Plaintiffs argue that Mauna Kea, an inactive volcano, is a religious temple, human burial ground, and a site for the study of traditional Hawaiian techniques in navigation and astronomy.

Missouri Creates New Faith-Based Partnership For Disaster Relief

Missouri Governor Jay Nixon last month signed Executive Order 09-25 setting up the Governor’s Faith-Based and Community Service Partnership for Disaster Recovery. Today's St. Louis Post-Dispatch carries a long report on Missouri's efforts to create a model of cooperation between state agencies and religious organizations to create an effective disaster response and recovery system. The state's new Partnership is made up of 16 state agencies, two federal agencies and 16 religious and charitable organizations.

Bald Eagle Case Transferred To Tribal Court

There has been a new development in the long-running federal prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance. The case has already been up to the 10th Circuit once on an unsuccessful challenge to the Bald and Golden Eagle Protection Act. (See prior posting.) A Wyoming federal district court judge has now agreed to let the matter be handled by a tribal court. AP reports today that the Wyoming federal district court that had scheduled a trial to begin Monday in the case instead has issued an order vacating the trial and specifying that the matter will be transferred to a tribal court. The judge however left open the possibility that he could still order a trial next month if the tribal court does not act.

Brooklyn Judge Criticizes Orthodox Jewish Community's Views On Child Abusers

In Brooklyn, New York on Tuesday, state trial court judge Guston Reichbach delivered a harsh rebuke to the borough's Orthodox Jewish community while sentencing Yona Weinberg, a 31-year old social worker and bar mitzvah tutor, for sexually molesting two boys. According to today's New York Jewish Week, the judge was distressed that in the 90 letters in support of Weinberg received prior to sentencing, no one expressed concern or sympathy for the victims. Judge Reichbach complained about "a communal attitude that seems to impose greater opprobrium on the victims than the perpetrator," and said that Jewish religious courts are inappropriate and incapable of dealing with criminal matters. The comments come just as the Orthodox Jewish community is beginning to face the problem of child sexual abuse.

Recent Prisoner Free Exercise Cases

In Jova v. Smith, (2nd Cir., Sept. 28, 2009), the U.S. 2nd Circuit Court of Appeals held that, under RLUIPA, prison authorities had demonstrated a compelling interest in a policy that permits inmates who lack a prison-affiliated chaplain to seek an outside sponsor, but where one is not available to allow an inmate to serve as facilitator of congregational worship only if the religion is known outside the institution. One of the two plaintiffs was the founder of Tulukeesh. The court also upheld against a RLUIPA challenge refusals to allow plaintiff to spar and receive martial arts training. However the court remanded for further consideration whether there was a less restrictive way of accommodating plaintiff’s complex religious dietary needs, such an entirely vegetarian diet. New York Law Journal reported on the decision last week. [Thanks to Steven H. Sholk for this lead.] In a related summary order issued on the same day, the court rejected plaintiff’s free exercise challenge and various other related claims. (See prior related posting.)

In Watson v. Wakefield, 2009 U.S. Dist. LEXIS 88395 (SD TX, Sept. 25, 2009), a Texas federal district court allowed two Muslim inmates to move ahead with his claim under RLUIPA that his rights were violated when he was barred for six months from attending Muslim services because during a scheduled prayer service he called for the resignation of his unit’s inmate Islamic coordinator. The court concluded that defendants had not shown for purposes of summary judgment that exclusion was the least restrictive means of promoting prison safety and security after a single incident of disruption. The court did however dismiss plaintiff’s First Amendment free exercise claim.

Vega v. Lantz, 2009 U.S. Dist. LEXIS 88550 (D CT, Sept. 25, 2009), involved free exercise and equal protection complaints, as well as a claim under RLUIPA, alleging a lengthy series of restrictions on a Muslim inmate’s right to practice his religion. A Connecticut federal magistrate judge rejected plaintiff’s complaint that he was denied halal meat and 5-times per day congregate prayer, as well as complaints about several other alleged infringements. The court however permitted plaintiff to move ahead with claims that Friday Jumah services are frequently cancelled, that the Qu’ran was mishandled, that his request to be circumcised for religious reasons was refused, that he was not allowed to purchase a toothstick, and that prayer oils sold in the commissary did not comply with Islamic requirements. The court also held that damages are not available under RLUIPA in claims against officials in their individual capacities.

In Decker v. Hogan, 2009 U.S. Dist. LEXIS 89048 (ND NY, Sept. 28, 2009), a New York federal district court permitted an atheist civil detainee who was placed in a sexual offender treatment program to move ahead with his First Amendment claim that portions of the program are based on Zen Buddhism and Christianity. The court, however refused to issue a preliminary injunction because plaintiff had not shown a substantial likelihood of success on the merits.

In Lewis v. Foster, 2009 U.S. Dist. LEXIS 88652 (D DE, Sept. 25, 2009), a Delaware federal district court rejected a claim by a former inmate that while he was incarcerated he was denied access to a razor to shave his head. He claimed that his Hebrew Israelite religion required him to shave his head for an indeterminate time after he came in contact with a dead body, namely his stillborn child.

In Lee v. Gurney, 2009 U.S. Dist. LEXIS 88883 (ED VA, Sept. 25, 2009), a Virginia federal district court rejected a Sunni Muslim inmate’s First Amendment and Equal Protection contentions, but permitted him to move ahead with his claim under RLUIPA complaining about a ban on group prayer in the prison recreation yard. The court concluded that authorities had not shown for summary judgment purposes that they used the least restrictive means to further a compelling interest in imposing the ban.

In Ramsey v. Goord, 2009 U.S. Dist. LEXIS 88859 (WD NY, Aug. 19, 2009), a New York federal magistrate judge refused to grant defendants’ motion for summary judgment on a series of related claims by an inmate who declared himself to be Jewish who was temporarily removed from the prison’s kosher food program without any chance to challenge the claimed reasons for his removal. He was charged with giving some of his kosher food to another inmate when it appears that this was done by an inmate porter of the food trays rather than plaintiff. Plaintiff was also allowed to move ahead with his claim that his removal from the program was in retaliation for his providing a statement helping another Jewish inmate in his charges against a prison staff member.

In Ellis v. United States, 2009 U.S. Dist. LEXIS 89392 (WD PA, Sept. 28, 2009), a Pennsylvania federal district court dismissed a Muslim federal inmate’s negligence claim stemming from the omission of his name from the call-out sheet for the 2006 Eid celebration as well as his free exercise claim based on the denial of Halal meat for the 2006 Eid celebration. The court also adopted a number of recommendations made in the case by a federal magistrate judge (2009 U.S. Dist. LEXIS 90035 (June 2, 2009)) including permitting plaintiff to move ahead with a RFRA claim that his name was omitted for 3 months from the call-out list for Jumu’ah services, an equal protection claim regarding denial of Halal meat for the Eid service, and a retaliation claim. The court agreed to deny a RFRA claim relating to plaintiff’s ability to purchase prayer oil and omission of Halal meat from the Eid service.

In Katz v. McGrew, 2009 U.S. Dist. LEXIS 89599 (D HI, Sept. 23, 2009), a Hawaii federal district court dismissed without prejudice a claim by a Jewish prisoner seeking a transfer from Hawaii to a mainland federal prison where he could eat and pray in a Sukkah during the Jewish holiday of Sukkot. The court said that case should have been brought as a civil rights claim, and not as a habeas corpus claim.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 89831 (ED AK, Sept. 17, 2009), and Arkansas federal magistrate judge recommended dismissing as frivolous a claim by an inmate who said he is a Disciple of Christ that he requires a one-person cell so he can be separate from those who do not obey the doctrines of Jesus.

In Boles v. Neet, 2009 U.S. Dist. LEXIS 91474 (D CO, Sept. 29, 2009), a Colorado federal district court accepted a federal magistrate’s recommendations (2009 U.S. Dist. LEXIS 90019 (March 13, 2009) and dismissed a complaint by an Orthodox Jewish prisoner that he was not permitted to wear his yarmulke and talit katan while being transported off prison premises for cataract surgery. (The case was on remand from the 10th Circuit. See prior posting.)

Court Says "Ministeral Exception" Does Not Apply To Suits Under Trafficking Victims Protection Act

In an important decision of first impression, a New York federal magistrate judge has concluded that the "ministerial exception" does not apply to suits under the federal Trafficking Victims Protection Act of 2000. Shukla v. Sharma, 2009 U.S. Dist. LEXIS 90044 (ED NY, Aug. 21, 2009), involves a Hindu priest who came to the United States under a religious workers visa to work for the Vishva Seva Ashram of New York. Plaintiff claims that he was tricked into leaving India and once here was subjected him to exploitative work conditions through psychological and emotional abuse-- allegations denied by defendants. Concluding that the First Amendment constraints on civil court jurisdiction over religious disputes should not apply here, the court said:

the standards that govern what constitutes trafficking and forced labor do not depend on the interpretation of religious doctrine; rather they are secular standards that guarantee that employers cannot deprive employees of fundamental human rights. Thus, unlike analyzing suits brought under federal and state employment laws, exploring the ills that the TVPA is meant to combat -- namely, trafficking and forced labor -- does not require courts to unduly interfere with the internal affairs of religious organizations or get involved in the selection or retention of ministers. Furthermore, a suit under the TVPA is not analogous to a suit under federal and state employment laws, because it is not brought in response to an adverse employment action...

Alabama High Court Says Morality Can Still Justify Commercial Regulation

The New York Times this morning editorializes on a decision handed down three weeks ago by the Alabama Supreme Court, 1568 Montgomery Highway, Inc. v. City of Hoover, (AL Sup. Ct., Sept. 11, 2009). In a 7-2 decision, the court upheld against constitutional attack Alabama's ban on the commercial distribution of sex toys, defined as "any device designed or marketed as useful primarily for the stimulation of human genital organs." The court concluded that "public morality" can serve as a legitimate rational basis for regulating non-private commercial activity. Siding with a view taken by the 11th Circuit, the court concluded that the U.S. Supreme Court's decision in Lawrence v. Texas only precludes using public morality as a legitimate governmental interest when a law regulates conduct that is both private and non-commercial. Two dissenters sided with the 5th Circuit, arguing that the U.S. Supreme Court's decision in Lawrence precludes this ban because it prevents individuals from purchasing sex toys for private intimate use.

Court Rejects Protesters' Attempts To Use Chalk Art In Anti-Roe Demonstration

In Mahoney v.District of Columbia, (D DC, Sept. 30, 2009), the D.C. federal district court rejected claims by several Christian anti-abortion protesters that their rights were infringed when they were denied permission to use chalk art as part of an anti-Roe v. Wade demonstration on the pedestrian plaza in front of the White House. The court concluded that the D.C. Code provision prohibiting the defacement of public property is an appropriate content-neutral time, place and manner regulation of speech. As a neutral law of general applicability, it survives plaintiffs' free exercise challenge. It does not impose a substantial burden on their religious exercise under the Religious Freedom Restoration Act because, while plaintiffs have a religious belief that they need to challenge abortion, they "do not allege that it is their sincerely held religious belief that they should express those views to the president through the specific medium of chalk or in the specific location of the 1600 Block promenade." The court also rejected plaintiffs' equal protection claim and their claim that police violated D.C.'s First Amendment Rights and Police Standards Act. (See prior related posting.)

European Court Faults Russia For Refusing To Register 2 Scientolgy Churches

In Kimlya v. Russia, (ECHR, Oct. 1, 2009), the European Court of Human Rights held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it refused to register the Church of Scientology in two Russian cities as a religious organizations under the country's Religions Act. Without registration, churches are essentially unable to function. Authorities refused registration because the churches failed to meet the statutory requirement that either they have existed for at least 15 years in a given Russian territory or are affiliated with a centralized religious organization.

The court noted that member states differed as to whether Scientology should be categorized as a religion. Therefore the court said it would defer to authorities of the country in question as to that issue. Russian officials held that the two churches were religious organizations. It went on to conclude that Russia's "15-year rule" violated the ECHR because it impacts only newly-formed churches that are not part of a strictly hierarchical church structure, and there is no justification for this difference in treatment. A ECHR press release summarized the decision.

Israel Prison Authority Says Prisoners Can Sleep In Sukkah

The Jewish holiday of Sukkot begins tonight. One of its customs is the construction of a Sukkah, a small enclosed area, partially open to the sky, in which observant Jews during the holiday eat their meals and sometimes also sleep at night. Yesterday's Yeshiva World News reports that in Israel, the Israel Prison Authority has for the first time given permission for observant prisoners to sleep in a sukkah in prison. In previous years, they had only been allowed to eat their meals there. The ruling, handed down at the request of the human rights group B'tzedek, applies to the wing housing religiously observant prisoner at the Massiyahu Prison. Among the prisoners housed there is Shlomo Benizri, a former member of the Knesset from the religious Shas Party, who is serving a four year sentence for accepting bribes.