Chabad Gets Default Judgment Against Russia In Suit Over Book Collections

Talk of the Planet reported yesterday that Judge Royce C. Lamberth, chief judge of the U.S. District Court for the District of Columbia, has entered a default judgment against the Russian Federation in the lawsuit against it by the Chabad-Lubavitch movement to recover two historic collections of Jewish religious books and manuscripts. (See prior posting.) After U.S. courts rejected Russia's jurisdictional challenges, Russia filed a statement with the court stating that it would no longer continue in the litigation and its counsel, Squire Sanders & Dempsey, withdrew. In issuing the default judgment, Judge Lamberth said: "The defendants have willfully refused to continue in this litigation."

Claims Against Archdiocese In Abuse Cases Do Not Violate First Amendment

In similar opinions handed down this week in two diversity cases, a Missouri federal district court held that it is required to make its own independent constitutional analysis in clergy sexual abuse cases to determine whether allowing negligent hiring, retention and supervision claims to be brought against the Catholic Archdiocese of St. Louis violates the First Amendment. The Missouri Supreme Court previously held that adjudicating such claims would be inconsistent with the First Amendment. In Ohl-Marsters v. Johnston, 2009 U.S. Dist. LEXIS 99585 and McCormick v. Johnston, 2009 U.S. Dist. LEXIS 99587 (ED MO, Oct. 26, 2009), the court held that proceeding with these claims would not violate either the Free Exercise or the Establishment Clause. However the court dismissed breach of fiduciary duty claims and respondeat superior claims against the Archdiocese brought by both plaintiffs, finding that those claims were not supported by state law.

7th Circuit: Village Can Exclude Churches From Commerical District Under RLUIPA

In River of Life Kingdom Ministries v. Village of Hazel Crest, (7th Cir., Oct. 27, 2009), the U.S. 7th Circuit Court of Appeals refused to grant a preliminary injunction to permit a church to relocate from a crowded warehouse to property it purchased in an area zoned for various commercial uses, but not for religious services. The church claimed that the Village of Hazel Crest's denial to it of a special use permit violated the "equal terms" provision of RLUIPA. The court concluded that the church had little likelihood of prevailing on the merits. It adopted the approach followed by the 3rd Circuit, holding that under RLUIPA a zoning ordinance can differentiate between religious and non-religious institutions for legitimate, non-religious reasons. Here the Village wanted to create a tax-generating commercial district near mass transit. It can exclude non-commercial uses, including churches, without violating RLUIPA. (See prior related posting.)

Radical Group Seeking To Create Sharia State In U.S. Arrested In Michigan; Leader Killed

In Michigan yesterday, raids by law enforcement officers at a warehouse in Dearborn and a home in Detroit led to a series of arrests and the unsealing of a federal conspiracy complaint against 11 men who are alleged to be members of a radical fundamentalist Sunni Muslim group. Yesterday's Detroit Free Press reports that the leader of the group, 53 year old Luqman Ameen Abdullah, was killed by authorities in an exchange of gunfire after he refused to surrender during the warehouse raid. A news release issued jointly by the U.S. Attorney's Office and the FBI described the group, which calls itself Ummah ("the brotherhood"), as "a group of mostly African-American converts to Islam which seeks to establish a separate Sharia-law governed state within the United States." According to the affidavit of an FBI agent, some of the members of the group were converted to Islam while in prisons across the U.S. Here in two parts (1, 2 ) is the full text of the affidavit of the FBI agent that accompanied the complaint.

President Signs New Hate Crimes Law As Part of Defense Authorization Act

Yesterday afternoon, President Obama signed the 2010 National Defense Authorization Act. His statement at the signing ceremony focused mainly on the defense spending portions of the bill. A few hours later he hosted a reception commemorating another part of the bill, the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. (See prior posting.) In his statement there (full text), he described the legislation:

through this law, we will strengthen the protections against crimes based on the color of your skin, the faith in your heart, or the place of your birth. We will finally add federal protections against crimes based on gender, disability, gender identity, or sexual orientation.... And prosecutors will have new tools to work with states in order to prosecute to the fullest those who would perpetrate such crimes. Because no one in America should ever be afraid to walk down the street holding the hands of the person they love. No one in America should be forced to look over their shoulder because of who they are or because they live with a disability.

WorldNet Daily reported on statements by a number of conservative Christian groups criticizing the new law.

Court Finds No Standing To Challenge Embryonic Stem Cell Research Funding

In Sherely v. Sebelius, (D DC, Oct. 27, 2009), several rather differently situated plaintiffs sued to enjoin the federal government from taking further actions to implement federal funding of human embryonic stem cell research. Provisions for funding are in Guidelines promulgated by the National Institute of Health. Plaintiffs are the Christian Medical Association, Nightlight (a Christian adoption agency that promotes adoption of embryos created during IVF procedures), parents who have already had a child through adopting an embryo, two researchers who would be competing for funding, and Nightlight on behalf of the embryos still stored at clinics. The court found, for various reasons, that each of the plaintiffs lacks standing to pursue the lawsuit. Some of the plaintiffs lacked standing because the court found the claim that the regulations will reduce the number of embryos available for adoption is speculative and dependent on third party conduct. As to the embryos still in storage, the court said that they lack standing because "embryos are not 'persons' under the law." AP reports on the decision.

Suit Challenges School Policy On Distribution of Flyers

An elementary student in Holly, Michigan has, through a suit brought by his mother, challenged the Holly Area Schools' policy (full text) governing the distribution of material to other students. The complaint (full text) alleges that plaintiff's 1st and 14th Amendment rights, as well as his rights under the Michigan Constitution, were violated when he was prevented from distributing a flyer advertising a Christian summer camp. Here are the facts as summarized by an ADF press release on the case:

A school district policy states that while "materials that have a religious content may be distributed during 'non-instructional' time," the "board reserves the right to refuse distribution of any material by outside individuals or groups to the students of the district."

In June, a Christian student at Patterson Elementary School attempted to distribute fliers inviting his classmates and friends to the Youth Summer Camp at Cornerstone Church. Fliers were placed in individually sealed envelopes, which also contained a letter describing the Youth Summer Camp.

After the student began placing the flier envelopes in cubbyholes where other fliers are placed, a teacher ordered him to stop distributing the fliers, saying that anything that comes from a church cannot be distributed at school.

The teacher removed the fliers and told the student to place them in his backpack. The principal informed the student’s mother that because of the so-called "separation of church and state," religious materials could not be distributed at schools. Further attempts to negotiate with officials were unsuccessful.

Cert. Filed In Oklahoma 10 Commandments Case

A petition for certiorari (full text) was filed Wednesday with the U.S. Supreme Court in Haskell County Board of Commissioners v. Green. In the case, the U.S. 10th Circuit Court of Appeals held that a display of a Ten Commandments monument on the lawn of the county courthouse in Stigler, Oklahoma, violated the Establishment Clause. Alliance Defense Fund issued a release announcing the filing.

UPDATE: The brief in opposition to the granting of cert (full text) was filed on Jan. 11, 2010 by the ACLU which represents respondents.

Court Upholds Modified Conditional Use Permit For Jewish School

In Concerned Residents of Hancock Park v. City of Los Angeles, (CA Ct. App., Oct. 27, 2009), a California appellate court upheld the decision of the Los Angeles Central Area Planning Commission (CAPC) to expand the conditions in the conditional use permit (CUP) granted to Yavneh Hebrew Academy to operate a school. CAPC expanded the number of individuals who could attend Saturday morning religious services held at the Jewish school from just students and their parents to anyone so long as attendance did not top 300 people. Plaintiffs argued that this allowed the school to effectively function as a public synagogue, instead of as a school. The court disagreed, concluding that "even with the modifications in place, ... Yavneh is a school and not a religious institution, and so it was not required to seek a separate CUP for use as a religious institution." The court also concluded that CAPC properly took the anti-discrimination requirements of RLUIPA into consideration when it fashioned the CUP conditions in a religion-neutral way that was consistent with the practice of secular schools that held extensive Saturday and evening activities.

Two Arrested In Plot to Attack Danish Paper That Published Muhammad Cartoons

Fallout from the publication by a Danish newspaper in 2005 of cartoons depicting the Prophet Muhammad continues. The caricatures sparked protests from Muslims around the world. (See prior posting.) The Justice Department announced yesterday that two Chicago men were arrested this month for their alleged parts in a conspiracy to attack the offices of Jyllands-Posten, the first newspaper to publish the cartoons, or to kill cartoonist Kurt Westergaard and Flemming rose, the paper's cultural editor. Here are the full texts of the criminal complaints in US v. Rana and U.S. v. Headley. Today's Chicago Tribune reports on the indictments.

2nd Circuit Dismisses Civil Rights Claims Against Airport Customs Personnel

In Muhammad v. Ahern, (2d Cir., Oct. 27, 2009), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal of a civil rights action brought by two plaintiffs who claimed they were subjected to unconstitutional border stops, searches, and detentions by Customs & Border Protection agents at New York's Kennedy Airport when they flew in from Saudi Arabia and Morocco. The court said plaintiffs' allegations that the border stops violated their rights to free speech, assembly, and free exercise of religion, and their rights under the Religious Freedom Restoration Act, were too conclusory to withstand a motion for summary judgment. The court also rejected plaintiffs' 4th Amendment claims.

Signature Campaign Begins On California Anti-Divorce Amendment [Updated]

The California Secretary of State announced last week that the proponent of an initiative petition to amend California's Constitution to ban divorce in the state may begin to collect signatures. The proposed amendment would still allow annulments, but would completely eliminate the ability of married couples to get divorced in California. Proponents will need to collect the signatures of 694,354 registered voters to qualify the initiative for the ballot.

According to Huffington Post last month, the proponent, John Marcotte, introduced the amendment to mock the proponents of Proposition 8 who focused on protecting traditional marriage as a reason to oppose same-sex marriage. Last month, Cockeyed.com published an interview with Marcotte. Here is one exchange that gives the flavor of his remarks:

RC: well, this is a bold step. Do you think you face a strong opposition?

John: The opposition will always be there. The secular progressives, gays and MSNBC hosts -- but we beat them once with Prop 8 and we'll beat them again. If people are thinking about getting a divorce, just remember "Hell is eternal, just like your marriage was supposed to be." Jesus still loves you if you get divorced, just not as much as before.

Thanks to Not a Potted Plant and a commenter for correcting my initial incorrect interpretation of the proposal as as one that was meant to be serious in its approach. I guess it was a bad morning for my sense of humor that usually has a better compass than today.

Kuwait High Court Rejects Challenge To Election of Women MPs Who Refuse To Wear Hijab

Kuwait's Constitutional Court-- the country's highest tribunal-- today rejected an attempt by four voters to invalidate the election of two women members of Parliament. AFP reported on the decision. Petitioners argued that because the two women refused to wear the hijab (headscarf), they were in violation of a provision in the election law requiring candidates to comply with Islamic religious requirements. The Court however said that the election law does not specify which sharia regulations candidates must follow, and at any rate the guarantees in the Kuwaiti Constitution for equality, personal liberty, and freedom of belief and religion supersede anything to the contrary in the election law. (See prior related posting.)

Georgia Episcopal Diocese Wins Title To Property of Historic Savannah Church

Today's Savannah (GA) Morning News reports that the Episcopal Diocese of Georgia has won its lawsuit against the break-away Christ Church in Savannah. (Background on lawsuit.) A Georgia trial court yesterday declared that the 276-year old church building belongs to the Diocese and not to the congregation that passed a resolution in 2007 declaring that the Episcopal Church and the Georgia diocese had abandoned the historic principles of the denomination's faith. Among other things, the court cited the Episcopal Church's Dennis Canon that says parish property is held in trust for the Episcopal Church and the local diocese. The congregation's brief (full text) had argued that its 1789 Charter gave it title to the property and that the Dennis Canon did not create a legally enforceable trust.

2nd Circuit Dismisses Long-Running Lawsuit On Kindergartener's Religious Poster

In Peck v. Baldwinsville Central School District, (2nd Circuit, Oct. 26, 2009), the U.S. 2nd Circuit Court of Appeals dismissed a viewpoint discrimination lawsuit that has been in the courts for ten years. In the lawsuit, parents of a young student in a Baldwinsville, New York elementary school charged that a kindergarten teacher and a principal displayed their son's poster on environmental issues only after folding under a picture of Jesus on the poster so it was not visible. After numerous proceedings, the only remaining claim was a free speech claim for injunctive and declaratory relief against the school district, and the principal and superintendent in their official capacities. (See prior related posting.) The court held that mere past injury is not enough to justify injunctive or declaratory relief. Plaintiffs have not shown either a likelihood of future harm or an official policy involving regular violation of students' free speech rights. The court ordered the case dismissed for lack of subject-matter jurisdiction.

eBay Bans Auction Intended To Support Accused Killer of Abortion Doctor

The online auction site eBay has prohibited the use of its facilities by supporters of Scott Roeder, the alleged killer of Kansas City abortion doctor George Tiller. As reported by Sunday's Kansas City Star, Roeder's supporters planned to auction an Army of God manual, a prison cookbook compiled by an abortion clinic bomber, a bullhorn signed by an anti-abortion activist and three drawings autographed by Roeder. The proceeds were to be used for Roeder's defense in his first degree murder trial that begins in January. Apparently supporters hope to finance representation other than the public defenders who are now representing Roeder. Some supporters are urging him to assert a "necessity defense."

However the Cleveland Plain Dealer reported yesterday that eBay says the planned auction violates its policy against material that encourages illegal activity or promotes violence toward others. eBay says it will remove the items if they are posted for sale. Tiller's attorney wrote eBay arguing that any proceeds from the auction would come under Kansas' "Son of Sam" law that keeps those charged with crimes from profiting from their activities. Proceeds would instead go to the Kansas Crime Victims Compensation Board. Regina Dinwiddie, a Roeder supporter, complained that eBay is chilling their First Amendment rights.

11th Circuit: Challenge By Christian Group to University of Florida Rules Is Moot

In Beta Upsilon Chi Upsilon Chapter at the University of Florida v. Machen, (11th Cir., Oct. 27, 2009), the U.S. 11th Circuit Court of Appeals dismissed as moot a challenge by a Christian fraternity to the University of Florida's non-discrimination rules for student organizations. Originally BYX was denied recognition as a student organization because it limited membership to those who demonstrated "a credible profession of faith in Jesus Christ," including a literalist view of the Bible and sexual purity. BYX excludes from membership, non-Christians, Catholics and mainline Protestants. University policy prohibits registered student organizations from discriminating on various grounds, including religious beliefs. The district court denied a preliminary injunction. BYX appealed and the 11th Circuit ordered the University to grant recognition to the organization while the appeal was pending. (See prior posting.)

After oral arguments in the 11th Circuit, the University announced that it had changed its policy on recognition of student groups. It now allows religious organizations-- such as BYX-- to limit membership or leadership positions to students who share the religious beliefs of the organization. Over the objections of BYX, the court concluded that no live controversy remained. The Gainesville (FL) Sun reports on the decision.

Court Says New Hampshire Town's Zoning Refusal Violates RLUIPA

Yesterday's Keene (NH) Sentinel reports that a New Hampshire trial court judge has ruled that the Richmond, New Hampshire planning and zoning boards violated the federal Religious Land Use and Institutionalized Persons Act in dealing with the zoning application of a conservative Catholic church. St. Benedict Center applied to build a school and chapel on land it owned. The zoning and planning boards approved the proposal, but only if some 30 conditions were met. The court ruled that the town discriminated against St. Benedict's by attaching unattainable deadlines to some of the conditions. The court also concluded that Richmond's zoning laws effectively excluded houses of worship from the town. However the court dismissed the lawsuit's claim for damages against the individual board members, finding they were acting in a quasi-judicial capacity when they ruled on St. Benedict's zoning application. The claims against the boards themselves will now proceed to a jury trial for a determination of damages. St. Benedict is asking for $2 million in compensatory damages and up to $5.8 million in punitive damages.

French Court Convicts Scientology and Its French Leaders of Fraud

A Paris Criminal Court today convicted two French affiliates of the Church of Scientology of fraud upon the complaints of two women who claimed they were manipulated into buying products or enrolling in courses. AFP and the London Times report that fines totalling 600,000 Euros (around $900,000) were imposed on Scientology's Celebrity Centre and its bookshop in Paris. Scientology's French leader, Alain Rosenberg, was given a suspended two-year jail sentence and fined 30,000 Euros. Five other defendants were fined from 1,000 to 20,000 Euros on charges of fraud and the illegal practice of pharmacy. The court was unable to order Scientology dissolved because of a change in the law passed by Parliament in May that precluded dissolution as a punishment for fraudulent associations. (Background). The court also is requiring Scientology to publish the court's judgment in six newspapers and magazines in France and abroad. Judge Sophie-Helene Chateau said that a fine would be more effective punishment anyway, since a ban on the group might just drive them underground. According to the New York Times, the church, which calls the verdict "an Inquisition for modern times," says it will appeal

US Enjoined Temporarily From Moving On Terrorist Designation for Muslim Charity

In KindHearts for Charitable Humanitarian Development, Inc. v. Geithner, (ND OH, Oct. 26, 2009), an Ohio federal district court issued a preliminary injunction barring the U.S. Treasury's Office of Foreign Assets Control from moving ahead to designate Kindhearts, a Muslim charity, to be a "Specially Designated Global Terrorist" group. In an August decision (see prior posting) the court found that in blocking KindHearts' assets, OFIC violated the charity's constitutional and statutory rights. Government officials had not obtained a search warrant; had applied vague criteria and not give the charity adequate notice and opportunity to be heard; and blocked access to funds for KindHearts to use to pay its counsel. The order issued yesterday bars the U.S. from taking the next step in the designation process until the court rules on what remedy is appropriate for the violations already found. Today's Toledo Blade reports on the case.