Egyptian Islamists Sue Top Cleric Over His Ban on Niqab At Al-Ahzar

As reported last week, Egypt's top cleric, Mohammed Sayyed Tantawi, announced he would ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. Today Al Arabiya reports that a Muslim brotherhood lawyer, representatives of Egypt's lower house of parliament and the Sawaseya Center for Human Rights have joined together in a lawsuit against Tantawi, claiming that his ban unconstitutionally violates personal freedom and infringes the principle of equality for all citizens. The lawsuit also names Egypt's minister of higher education and the president of Cairo University as defendants. A spokesman for al-Azhar argued that the Muslim Brotherhood is not able to sue because it is an outlawed group. He also claimed that the ban is an internal policy of al-Ahzar that outsiders have no right to challenge.

Vermont Supreme Court Remands Clergy Sex Abuse Case For New Trial, Ruling For Plaintiff

In Turner v. Roman Catholic Diocese, (VT Sup. Ct., Oct. 9, 2009), the Vermont Supreme Court held that neither the Free Exercise Clause, the Establishment Clause nor the religious autonomy doctrine bars negligent hiring or negligent supervision claims against the Catholic Diocese of Burlington, Vermont. In the clergy sexual abuse case in which the plaintiff was awarded $15,000 in damages, the Court said:

Defendant does not argue that the common law of negligence is something other than a neutral law of general applicability or that it is directed specifically towards a religious belief or practice of defendant. Nor has defendant identified a specific doctrine or practice that will be burdened if plaintiff’s suit goes forward. We do not believe defendant’s generalized assertion that requiring it to hire and supervise priests in a non-negligent manner would constitute undue interference in church governance.

Rejecting defendant's religious autonomy claim, the court said that "the claim was not brought under church law, nor did it seek to enforce the duties of defendant according to religious beliefs." The court also held that summary judgment should not be granted to defendant on statute of limitations grounds.

Finally the court held that the trial court should have excused for cause a juror who was a member of the defendant Diocese. The Court rejected the argument that permitting this challenge for cause would amount to religious discrimination. This finding led the Court to vacate the judgment and remand the case for a new trial.

Yesterday's Bennington (VT) Banner reported on this decision, as well as on another unrelated case in which a trial court jury in Chittenden, Vermont on Friday handed down a $2.2 million verdict in a suit against the same Catholic Diocese in a different clergy child molestation case.

State Court Decision In Synagogue Dispute Leads To Self-Help

Today's Hudson Valley (NY) Times Herald-Record reports on the aftermath of a recent state appellate court decision in a lawsuit between two Hasidic synagogues in the town of Kiryas Joel. Opponents of the village's chief rabbi had for 25 years been using the former living quarters of the chief rabbi (next to the main synagogue) as their own place of worship. Apparently the house had been left to the group by the late wife of Satmar Rebbe Joel Tietelbaum. In the court decision last month, New York's Appellate Division ruled that the dissidents' use of the former home as a place of worship now requires a site plan review by the Village Zoning Board. (See prior posting.) This ruling led the main synagogue, Yetev Lev, to shut off electricty, water and sewer services to the dissident synagogue, Bais Yoel Ohel Feige.

Not deterred, members of BYOF tapped electricity from a neighboring property and ran a hose with water from there to their synagogue. Then, according to the paper's account, along came "Joseph Waldman, a onetime dissident firebrand ... who prays three times a day at the dissident synagogue." He commandeered a truck carrying portable toilets and, with fellow congregants, took the toilets onto BYOF grounds. According to the paper: "Equipped with improvised utilities, dissidents continued using the synagogue during Sukkot last week, but their Planning Board application still looms, and more legal fighting is certain."

UPDATE: BYOF has been held in contempt by a state trial court judge for continuing to use the premises without submitting a site plan for review. The court ordered the synagogue closed within 5 days. (Times Herald-Record, 12/3/2009).

Federal Jury Rejects Religious Discrimination Claim By Indiana City Employee

Friday's Chicago Tribune reports that a federal court jury sided with the Kendallville, Indiana water department in a religious discrimination lawsuit brought against it by former employee Greg Rice. Rice claimed that his supervisor, Scott Mosley, posted religious slogans in the office and repeatedly lectured him about the state of his soul. Mosley is also the pastor of a local church. However apparently the jury believed Mosley's testimony that he fired Rice for insubordination after Rice argued and hung up on a staff member of the city clerk's office.

Appellate Court Reinstates Pakistani Muslim's Employment Discrimination Claims

Taking both parties to task for the 5,415 pages of material that were before the trial court when it was called on to decide a summary judgment motion, a California appellate court nevertheless reversed the dismissal of discrimination and harassment claims brought against United Airlines by a Muslim of Pakistani ancestry. Plaintiff was fired from his position as supervisor of facilities maintenance mechanics, according to United Airlines because of an assault on a female employee of an outside service provider. In Nazir v. United Airlines, Inc., (CA Ct. App., Oct. 9, 2009), the court concluded that questions of fact remained as to whether the reasons given for Nazir's firing were a pretext for religious or national origin discrimination. Nazir had cited a long history of ethnic name calling and harassment by co-workers. Today's San Francisco Chronicle reports on the decision.

Presidential Statement, Official Delegation Hail Canonization of Fr. Damien

Pope Benedict XVI today canonized five new saints, including Belgian-born priest, Jozef De Veuster, known as Father Damien, who died of leprosy in 1889 after years of caring for those suffering from leprosy on the Hawaiian island of Molokai. (New York Times.) On Friday, the White House issued a statement from the President recognizing Fr. Damien's canonization. Obama, who was born in Hawaii, recalled hearing stories of Fr. Damien's work. A large delegation from Hawaii attended the canonization ceremony in Rome. ABC News reports that President Obama sent an official delegation to Sunday's ceremony. It was led by US ambassador to the Vatican, Miguel Humberto Diaz, and included Hawaii Sen. Daniel Kahikina Akaka; New Jersey Rep. Donald Payne; the superintendent of Kalaupapa National Historic Park, Stephen Prokop; Bishop of Honolulu Larry Silva; and President of the Catholic Health Association of the United States Sister Carol Ann Keehan.

Ohio Judge Again Enjoined From Displaying Poster Featuring 10 Commandments

In ACLU of Ohio Foundation, Inc. v. DeWeese, (ND OH, Oct. 8, 2009), an Ohio federal district court enjoined Richland County (OH) Common Pleas Judge James DeWeese from continuing to display in his court room a framed poster he had created titled "Philosophies of Law In Conflict." The poster was put up after the judge was enjoined in 2004 from displaying a poster containing the Ten Commandments. The new poster discussed moral absolutism as opposed to moral relativism. In a column titled Moral Absolutes, the poster lists the text of the Ten Commandments next to a column listing "Humanist Precepts." Granting summary judgment to the ACLU, the court concluded that Judge DeWeese's purpose in posting the display was religious, and that a reasonable person would view the poster as a governmental endorsement of religion. The poster violated the Establishment Clause as well as Art. I, Sec. 7 of the Ohio Constitution. The court also concluded that the Free Speech clause of the First Amendment does not protect the display because it is not private speech. The Ohio ACLU issued a press release on the case and Friday's Mansfield (OH) News Journal reported on it. (See prior related posting.)

UPDATE: The Oct. 13 Mansfield News Journal reports that Judge DeWeese has complied with the federal court order by placing a dark blue drape over his display and posting on the drape a statement objecting to censorship which he says was imposed because "the ACLU was offended" by reading his essay.

San Francisco Catholic Archdiocese Battles City Over Transfer Tax Liability

The San Francisco Bay Guardian reports on a hearing yesterday before the city's Transfer Tax Review Board. At issue is somewhere between $3 million and $15 million in transfer taxes that the city says are due from the San Francisco Catholic Archdiocese as a result of its transfer last year of some 233 properties to two new Catholic non-profit holding companies. According to yesterday's SF Appeal, apparently the properties were transferred to shield them from judgments in any future clergy sexual abuse lawsuits. The Archdiocese says the transfers are not subject to tax because, as transfers from one Catholic entity to another, they qualify as "gifts" under canon law. In an earlier statement, the Archdiocese claimed that the law treats these as properties of the Church, and that the transfers between religious corporations are seen as merely conveniences to assist the Church in holding title. Church supporters say that paying these transfer taxes could cripple other Church programs. Some suggest that attempts by San Francisco Assessor-Recorder Phil Ting to impose the tax is retaliation for the Church's support of Proposition 8 (banning gay marriage) last year. [Thanks to PewSitter for the lead.]

NY Appellate Court Refuses To Adjudicate Validity of Hindu Marriage Rites

In Madireddy v. Madireddy, (NY App. Div., Oct. 6, 2009), a New York state appellate court dismissed a divorce complaint because the case required the civil courts to determine whether the parties' were validly married in a Hindu ceremony in India in 1952. The court concluded that determining the validity of the alleged marriage required analysis of "the various and customary rites, customs, and practices of the Hindu religion of a particular caste in a particular region." The trial court was without jurisdiction to settle a religious controversy that could not be resolved by the application of neutral principles of law. [Thanks to Eugene Volokh via Religionlaw for the lead.]

City Will Post "In God We Trust"

The Fortuna, California City Council on Monday voted 5-0 to post the national motto, "In God We Trust", in city council chambers. Members of the public expressed conflicting views on the proposal at the Council meeting. One argued that he should not be forced to recognize God, but another responded that a majority of people in the community believe in God and he was tired of having the minority telling him that he can't recognize his God in public. Yesterday's Humboldt (CA) Beacon reports that one of the Council members will come up with funding for the placard. Some 56 cities have joined a movement to post the motto. Council must still give final approval later this month.

Illinois Cancels Controversial Grant To Historic Church For Rebuilding

Chicago activist Rob Sherman reports that the Illinois Department of Commerce and Economic Opportunity notified (full text of letter) Pilgrim Baptist Church last month that it was terminating a grant promised to the church by former Governor Rod Blagojevich. The $1 million state grant was intended to help rebuild the historic Chicago church after it was severely damaged by fire in 2006. Last year, Sherman filed a lawsuit alleging that the grant violates the Establishment Clause as well as various provisions of the Illinois Constitution that effectively bar expenditures for religious purposes. (See prior posting.) The grant agreement limited the funds to use for secular purposes, but Sherman claimed that the state portion will still be identified with the church and that there were no effective limits on use of the funds after the two-year grant period.

New Hampshire Noise Law Challenged By Two Evangelists

Two Christian evangelists filed a federal lawsuit on Wednesday challenging the constitutionality of New Hampshire's statute banning loud and unreasonable noise in a public place, and the application of that statute by the Town of Hampton. The complaint (full text) in Frost v. Town of Hampton, (D NH, filed 10/7/2009), alleges that N.H. RSA 644:2(III)(a) is unconstitutionally vague and overbroad, and is used to improperly restrain any speech "that the government subjectively determines does not increase tourism in the Hampton Beach area." The two plaintiffs were arrested in August and charged with disorderly conduct after preaching near the beach boardwalk where a rock concert was being held. Those charges were dismissed. The lawsuit also claims false arrest in connection with that incident. Alliance Defense Fund issued a release announcing the lawsuit.

NY Finds That Restaurant Discriminated Against Falun Gong Patrons

Epoch Times reports on an Oct. 2 ruling by the New York State Division on Human Rights finding that the Lucky Joy restaurant in Flushing violated anti-discrimination laws when it refused service to two women and a young girl because one of them was wearing a Falun Gong T-shirt. (See prior posting.) Each of the three was awarded $7000 in damages. In addition the restaurant must display an anti-discrimination poster and create anti-discrimination training and procedures.

Catholic Archbishop Speaks Out On Government's Relationship With Catholics

CNA reports on an interesting speech delivered by Catholic Archbishop of Denver Charles J. Chaput yesterday at North Carolina's Belmont Abbey College where he was given the Envoy of the Year Award. He praised Belmont Abbey for its stand against the EEOC which has charged the college with gender discrimination for dropping coverage for contraceptive drugs from its health plan for employees. (See prior posting.) Contrasting anti-Catholic bigotry in early America with today, Chaput said:

Caesar wears a different suit. He has great media handlers. He bullies religion while he claims to respect it. He talks piously about the law and equality and tolerance and fairness. But he still confuses himself with God –and he still violates the rights of Catholic believers and institutions by intruding himself where he has no right to be....

It's one of the great ironies of the moment that tiny Belmont Abbey would have the courage to challenge Caesar over its right to be faithfully Catholic in its policies, while so many other American Catholics seem eager to give Caesar honors.

Earlier this week, Chaput published an article in the Italian newspaper Il Foglio criticizing Notre Dame University's award of an honorary degree to President Obama last Spring.

Hate Crimes Bill Included In Defense Authorization Conference Report Passed By House

It appears that the long battle to expand federal hate crimes legislation is about to succeed. (See prior posting.) The Conference Report on HR 2647, the 2010 Department of Defense Authorization Bill, included in the bill the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. Yesterday the House of Representatives approved the Conference Report by a vote of 281-146. The Conference Report now goes to the Senate for its approval. President Obama has promised to sign the legislation.

According to a release from the Senate Armed Services Committee, the hate crime provisions will (1) prohibit hate crimes based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; (2) provide support for the criminal investigation and prosecution of hate crimes by State, local, and tribal law enforcement officials; and (3) prohibit attacks on United States service members based on their military service.

Yesterday's Los Angeles Times reports that 131 of the 146 "No" votes were from Republicans who object to the hate crimes legislation, despite language designed to protect religious speech and association. Conservative Christians have argued that the bill could be used to prosecute pastors for anti-gay sermons that are later connected to violence against gays. Here are the provisions in the Conference Report intended to deal with this issue (at pp. 1366-69):

SEC. 4710. RULE OF CONSTRUCTION.
For purposes of construing this division and the amendments made by this division the following shall apply:

(1) IN GENERAL.—Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

(2) VIOLENT ACTS.—This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.

(3) CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to—
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.

(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

SEC. 4711. GUIDELINES FOR HATE-CRIMES OFFENSES.
Section 249(a) of title 18, United States Code, as added by section 4707 of this Act, is amended by adding at the end the following:

"(4) GUIDELINES.—All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person."

ADL issued a press release welcoming the House action and said the next step is training for law enforcement personnel and prosecutors about the new law. The Family Research Council issued a statement criticizing the legislation, calling it a "thought-crimes bill" and charging that it gives special rights based solely on sexual behavior.

Human Rights Lawyer In Egypt Sues To Stop "Hesba" Proponent

Egyptian human rights lawyer Naguib Gobraiel filed a lawsuit in Cairo on Wednesday against fellow-lawyer Nabih el Wahsh charging him with "ghawi shohra" or "seeking fame." The charges stem from el Wahsh's long history of bringing "Hesba" cases against intellectuals, artists, religious leaders and government ministers charging them with immorality or blasphemy. The doctrine of Hesbah allows any Mulim to take legal action against anyone seen as harming Islam. In Egypt, the doctrine also extends to actions seen as immoral or injurious to the country. UAE's The National yesterday reported that el Wahsh has filed nearly 1000 Hesbah cases in the past ten years. For example he recently filed suit attempting to get seven TV series removed from Egyptian and Arab stations during Ramadan for violating Islamic law and presenting immoral scenes. Most of el Wahsh's cases are dismissed by the prosecutor general before they get to court. However earlier this year he won a case stripping Egyptian nationality from anyone married to an Israeli. If Gobraiel's lawsuit is successful, it could lead to a fine being imposed on el Wahsh.

Recent Prisoner Free Exercise Cases

In McAlister v. Livingston, (5th Cir., Oct. 6, 2009), the U.S. 5th Circuit Court of Appeals remanded for trial a Wiccan inmate's claims under the 1st Amendment and RLUIPA, alleging that prison officials wrongly denied his requests for devotional items for in-cell and group use, and that Wiccan inmates are not allowed to meet to celebrate the eight Wiccan holy days or for group worship without the supervision of an approved volunteer.

In Brown v. Lindsay, 2009 U.S. Dist. LEXIS 91126 (MD PA, Oct. 1, 2009), a Pennsylvania federal district court dismissed a challenge by a Muslim inmate to the temporary removal from the sheves of the prison chapel's library for security reasons of certain books. Plaintiff had since been transferred to a different facility and the Bureau of Prisons has rejected the Standardized Chapel Library Project policy responsible for the removal of the books. (See prior related posting.)

In Hamilton v. Smith, 2009 U.S. Dist. LEXIS 91039 (ND NY, Sept. 30, 2009), a New York federal district court rejected an inmate's complaint that his free exercise rights and his rights under RLUIPA were violated when the prison refused to provide him meals that met both his religious tenets and his medical needs for a low-sodium, low-cholesterol diet. The magistrate's recommendation is at 2009 U.S. Dist. LEXIS 91032 (Jan. 13, 2009).

In Fetzer v. McDonough, 2009 U.S. Dist. LEXIS 91063 (ND FL, Sept. 29, 2009), a Florida federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91074 (June 26, 2009)) and rejected an inmate's free exercise, equal protection and due process challenges to the Florida Department of Corrections discontinuance of its Jewish Dietary Accommodation Program.

In Bey v. Caruso, 2009 U.S. Dist. LEXIS 90314 (ED MI, Sept. 30, 2009), a Michigan federal district court rejected a magistrate's evidentiary ruling (2009 U.S. Dist. LEXIS 90323 (Feb. 27, 2009)) and held that material questions of fact remained for trial in a suit by an inmate, a member of the Moorish Science Temple of America, who wanted prison officials to use his religious name in prison documents.

In Smith v. Stoley, 2009 U.S. Dist. LEXIS 91142 (WD MI, Sept. 30, 2009), a Michigan federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91456 (July 21, 2009)) and dismissed claims by a Wiccan prisoner who wanted to possess a number of items for religious rituals, such as a knife, a crystal ball, candles, incense and a senser, and wanted to cover his cell window in order to perform certain Wiccan rituals naked.

In Crump v. McBurney, 2009 U.S. Dist. LEXIS 90693 (WD MI, Sept. 30, 2009) a Michigan federal district court adopted the recommendations of a magistrate judge (2009 U.S. Dist. LEXIS 91403 (June 11, 2009)) and rejected a RLUIPA claim by a prisoner who was wrongly removed from the prison's kosher food program for 39 days. Under prison rules, inmates could be suspended from the program if they purchased non-kosher food from the prison commissary. A guard had claimed that cough drops ordered by the inmate violated this restriction, but was later overruled when the warden ruled that these were personal care items, not food.

Philadelphia Couple Charged In Faith Healing Death of 2-Year Old Son

In Philadelphia (PA), Herbert and Catherine Schaible have been charged with involuntary manslaughter, conspiracy to commit involuntary manslaughter and endangering the welfare of a child in the death of their 2-year old son from bacterial pneumonia. According to the Philadelphia Inquirer and the Philadelphia Daily News, at a preliminary hearing yesterday a municipal court judge bound the parents over for trial. The parents, members of the First Century Gospel Church, do not believe in seeking medical care. Instead they prayed over their sick son for ten days, and when he did not improve they called their pastor to also pray with them. Herbert Schaible, who has only a 9th grade education, is a teacher at the Church's school. His wife also dropped out of school after the 9th grade. The couple's attorneys argued that the Schaibles merely thought that their son had a bad cold or the flu.

Wisconsin Parents Sentenced In Daughter's Faith-Healing Death

Yesterday's New York Times reports that Dale and Leilani Neumann, who were convicted this summer of second-degree reckless homicide in the 2008 death of their 11-year old daughter Kara, were sentenced by a Wisconsin judge on Tuesday. The parents were ordered to spend 30 days in jail each year for the next six years and were placed on 10 years' probation. Prosecutors had asked for a 3-year sentence. The Neumanns failed to obtain medical treatment for their daughter's diabetes. Instead they and other relatives and friends prayed for Kara as her health deteriorated. She finally went into a coma. (See prior postings 1, 2. )

Court Says Diocesan Assets Belong To ECUSA Loyalists

In Calvary Episcopal Church v. Duncan, (PA Com. Pl, Oct. 6, 2009), a Pennsylvania trial court ruled that under a 2005 settlement agreement, some $15 million in church endowments, bank accounts, and other resources are property of the Pittsburgh Episcopal diocese that remains affiliated with the Episcopal Church USA. The court said that the language of the settlement is "clear and unambiguous" that these assets do not belong to the congregations that broke away and affiliated with the Anglican Province of the Southern Cone. The ruling did not deal with questions of properties titled in the names of individual parishes. In a statement after the ruling was handed down, leaders of the diocese that remained with ECUSA said: "We must now focus on reconciliation and welcoming back anyone who wants to return to our Episcopal Diocese." In a pastoral letter , Archbishop Robert Duncan, leader of the break-away group, emphasized that the decision only affected diocesan assets, and not parish properties or funds. He said that the court's decision violates assurances that the issue of which group is the "true diocese" was not part of this case. Yesterday's Pittsburgh Post-Gazette reports on the decision.