3rd Circuit Rejects Complaint Over Docked Pay For Good Friday

In Miller v. Weinstein, (3d Cir., Nov. 9, 2009), the U.S. 3rd Circuit Court of Appeals rejected a First Amendment claim by a former Allegheny County, Pennsylvania employee. The court held that a reprimand letter and a threat to dock the pay of a Christian employee for her unexcused absence from work on Good Friday did not amount to a substantial burden on the employee's free exercise of religion. The court also concluded that Diane Miller was fired not for observing Good Friday, but for her inflammatory e-mail objecting to the threatened loss of pay for the day.

Gay Anti-Discrimination Ordinance Passes In Salt Lake City With LDS Backing

City Council in Salt Lake City, Utah yesterday unanimously passed ordinances barring discrimination in housing and employment on the basis of sexual orientation or gender identity. (Full text of ordinances.) Yesterday's Salt Lake Tribune reports that passage came after the Church of Jesus Christ of Latter Day Saints announced its support for the ordinances. That support developed out of two months of secret meetings between mid-level LDS leaders and leaders of the gay community in Utah. Negotiations with Utah Pride and Equality Utah began after "kiss in" protests on the Church-owned Main Street Plaza in July over LDS treatment of a gay couple seen kissing on the Plaza. (See prior posting.) The agreement on support is seen as an attempt by the LDS Church to lessen some of the tensions that stemmed from strong Church support for California's Proposition 8. (See prior posting.) At Tuesday's City Council meeting, Michael Otterson, managing director of the LDS Church's Public Affairs, presented the Church's position (full text of remarks), saying in part: " The Church supports this ordinance because it is fair and reasonable and does not do violence to the institution of marriage." [Thanks to Sheldon Gilbert for the lead.]

Cert. Petition Filed In Challenge To Release of Names of Referendum Petition Signers

On Nov. 6, a petition for certiorari (full text) was filed with the U.S. Supreme Court in John Doe #1 v. Ried. In the case, the 9th Circuit overturned a preliminary injunction issued by a Washington federal district court. The injunction barred release of the names of individuals who signed referendum petitions opposing Washington's domestic partnership law. (See prior posting.) The Supreme Court has already reinstated the district court's injunction pending filing and disposition of the petition for cert. (See prior posting.) Yesterday's National Law Journal reported on the filing of the cert. petition. The petition raises the question of whether, in order to respect privacy in political speech, strict scrutiny should be applied to the state's decision to release the signatures under its Public Records Act.

President Urged To Raise Religious Freedom Issues With Chinese Leaders

On Thursday, President Obama leaves on a nine-day trip to Japan, Singapore, China and South Korea. (CNN). Yesterday the U.S. Commission on International Religious Freedom wrote the President (full text of letter) urging him "to raise critical issues of religious freedom" with Chinese leaders. USCIRF wants the President to "seek meetings with prominent human rights defenders and repressed religious leaders, and make a strong public statement about the importance of human rights to the future of U.S.-China relations." According to Voice of America yesterday, the President says he will talk with Chinese leaders about human rights, along with issues of climate change and trade.

President Speaks At Ft. Hood Memorial Service

Yesterday, President Obama and the first Lady traveled to Texas to meet with families of those who were killed and wounded in last week's shooting at Ft. Hood. (White House blog report.) Afterwards, the President spoke at a memorial service at Ft. Hood for the 13 who were killed in the massacre that was apparently carried out by Major Nidal M. Hasan, an Army psychiatrist and a devout Muslim. (Full text of Obama's remarks.) While much of the President's speech focused on the victims, the President's remarks also contained at least two interesting references to religious faith:

It may be hard to comprehend the twisted logic that led to this tragedy. But this much we do know -- no faith justifies these murderous and craven acts; no just and loving God looks upon them with favor. For what he has done, we know that the killer will be met with justice -- in this world, and the next....

As we face these challenges, the stories of those at Fort Hood reaffirm the core values that we are fighting for, and the strength that we must draw upon.... We are a nation of laws whose commitment to justice is so enduring that we would treat a gunman and give him due process, just as surely as we will see that he pays for his crimes. We're a nation that guarantees the freedom to worship as one chooses. And instead of claiming God for our side, we remember Lincoln’s words, and always pray to be on the side of God.

Church Concerts Enjoined; Leader Says Church of Love and Music Will Move

AP reports that in Fayette County, Pennsylvania, the Church of Universal Love and Music has agreed to a permanent injunction against its holding concerts on its property that is zoned for agricultural purposes. A temporary injunction was issued by a Pennsylvania federal district court in August after a raid turned up drug use by concert goers. (See prior posting.) Church leader William Pritts says he will move his church to another county.

FLDS Leader Sentenced To Ten Years In Prison By Texas Jury

As previously reported, last week a jury in a state court in Texas convicted FLDS Church leader Raymond Jessop of sexually assaulting a 16-year old who he had taken as one of his nine wives. A hearing on sentencing was held on Monday, and yesterday, according to the Salt Lake Tribune, the jury deliberated for six hours before imposing a sentence of ten years in prison and an $8000 fine on Jessop. He will be eligible to be considered for parole after five years. the state had asked the jury to impose a 20 year sentence, while Jessop argued for probation. An FLDS spokesman called the sentence an example of a religious war against FLDS and said the sentencing will now permit an appeal to challenge the entire basis of the state's investigation of the sect's Yearning for Zion Ranch.

South Carolina "I Believe" Plates Ruled Unconstitutional

In Summers v. Adams, (D SC, Nov. 10, 2009), a South Carolina federal district court held that the statute authorizing South Carolina's "I Believe" license plates-- carrying the image of a cross superimposed on a stained glass window-- violates the Establishment Clause. The court summarized its conclusions as follows:

the "I Believe" Act cannot be seen by any reasonable observer either as facilitating expression of a broad diversity of viewpoints ... or as a permissible accommodation to Christians..... Both positions are belied by the facts that the "I Believe" Act (1) authorizes a single plate with a uniquely Christian message, (2) was sponsored and approved solely as the result of governmental action, and (3) presents its message in a manner that is not available except through the legislative approval process (necessary to allow the inclusion of both motto and symbol). ....

The "I Believe" Act had its genesis in Lieutenant Governor Andre Bauer’s desire to do here what had been unsuccessful in the state of Florida–to gain legislative approval of a specialty plate promoting the majority religion: Christianity. Whether motivated by sincerely held Christian beliefs or an effort to purchase political capital with religious coin, the result is the same. The statute is clearly unconstitutional and defense of its implementation has embroiled the state in unnecessary (and expensive) litigation.

While granting a declaratory judgment and awarding attorneys' fees, the court rejected plaintiffs' claim for nominal damages, finding that qualified immunity protects the secretary of state's actions in planning for distribution of the plates. The court had previously issued a preliminary injunction against further advertising, distribution or production of the plates. (See prior posting.) A press release from Americans United, which had filed the case, said that the court's decision put a stop to officials who "want to use religion as a political football." ABP reported on the decision.

White House Faith-Based Office Finally Has A Web Presence

Finally the White House Office of Faith-Based and Neighborhood Partnerships has a presence on the White House website. At the heart of the new web presence is director Joshua DuBois' Partnerships Blog. The site also offers other relevant resources and information, including links to Centers for Faith-Based and Neighborhood partnerships at ten federal departments and agencies. Relevant press releases from the White House Press Office are featured on the OFBNP home page.

Court Tentatively Holds High School Student Not Liable For Teacher's Attorneys' Fees

While high school student Chad Farnan was found liable for court costs in the aftermath of his lawsuit against his high school history teacher who he accused of making anti-Christian remarks (see prior posting), in a preliminary ruling last Friday a Californa federal court concluded that he is not liable for his teacher's $378,000 of attorneys' fees. According to yesterday's Orange County Register, the court held that Farnan's suit was not a frivolous, baseless or vexatious claim justifying an award of attorneys fees under 42 USC Sec. 1988. (Background.) In the suit, the court found that one remark by the teacher violated the Establishment Clause, but Farnan was entitled to neither damages nor injunctive relief. A hearing was scheduled for yesterday for the parties to respond to the proposed decision on fees before the court finalizes its opinion.

French Busineses Have Concerns Over Accommodating Muslim Religious Practices

Europe News yesterday reports on difficulties faced by companies in France as they are increasingly asked to accommodate religious needs of Muslim employees. Many managers oppose employees wearing head scarves. Larger companies have set up prayer rooms. When significant numbers of employees seek to take time off for Eid, some companies face staffing problems. The most accepted kinds of accommodation involve Ramadan. Often schedules are adjusted, long breaks are provided to break the fast and restaurants remain open later, offering halal soup, milk and fruit. France's anti-discrimination agency has ruled that religious accommodation can be refused only if it would interfere with providing business services.

Federal Magistrate Says Sectarian Invocations Violate Establishment Clause

In Joyner v. Forsyth County, North Carolina, (MD NC, Nov. 9, 2009), a federal magistrate judge recommended that the court issue a declaratory judgment finding that sectarian invocations opening Forsyth County Board of Commissioners meetings violate the Establishment Clause. While the county's official policy called for inviting clergy from all congregations with a presence in the local community, in application invocations referred to Jesus in an overwhelming number of cases. Non-Christian deities were never invoked. The court concluded that while the selection process strives to include a wide variety of speakers from diverse religious faiths, "it is the prayers themselves that the public 'sees and hears,' not the selection policy." ACLU of North Carolina issued a press release saying that it is "pleased today for our clients and all religious minorities in Forsyth County who have felt shut out and alienated by their own government because of its public stance in favor of Christianity." Yesterday's Winston-Salem Journal reported on the decision.

Board Fires Head of "Feed the Children"

The board of the Christian charity, Feed the Children, has terminated its president, Larry Jones, according to a report yesterday in the Christian Post. For the last year, a power struggle has been going on between Jones and the charity's board of directors. Last December Jones removed several directors, including his daughter Lari Sue Jones. They sued and a judge ordered them reinstated. Larry Jones placed microphones in their offices before they returned, though apparently he never obtained recording equipment to use with them. Jones' attorney says the microphones were to record conversations between Jones and the directors who Jones felt in the past had misrepresented him. The board's announcement gave no reasons for Jones' dismissal, but Jones says he believes it is because he obtained a court order this week temporarily barring the directors from using organizational funds to pay for legal fees. Jones plans to file a lawsuit next week challenging his dismissal.

2009 "Friend or Foe Christmas Campaign" Launched By Liberty Counsel

Liberty Counsel announced today that it is launching its Seventh Annual "Friend or Foe Christmas Campaign." The campaign is designed to encourage government officials, schools and private businesses to explicitly recognize and publicly celebrate Christmas. A page on the group's website features two legal memos, one on public Christmas celebrations and the other on celebrating Christmas in the workplace. It also offers buttons and bumper stickers, sample ads, and links to Liberty Counsel's "Naughty & Nice List". That list names retailers who either celebrate Christmas or, on the other hand, merely use generic "holiday season" references. This year, the Christian Educators Association International is joining in the "Friend or Foe" campaign.

Muslim Soldiers In US Military Face Complex Situation

In the wake of the shootings at Ft. Hood, Texas by Army psychiatrist Nidal Hasan, today's New York Times explores the complications facing Muslims serving in the U.S. military. The military has been actively recruiting Muslims with the linguistic skills and cultural understanding needed to fight the wars in Iraq and Afghanistan. However Muslims in the service face suspicion by some of their officers. Muslim soldiers are concerned about killing fellow Muslims in fighting and they hear condemnations of such killing in their mosques when they return from service. Adding to these issues is the discomfort when fellow soldiers use demeaning anti-Muslim terms to describe the enemy in Iraq and Afghanistan.

House Health Care Bill Tracks FICA Exemption For Religious Objectors

The House version of the health care bill passed Saturday, HR 3962, imposes a 2.5% penalty tax on anyone who fails to obtain acceptable health care coverage. (Internal Revenue Code Sec. 59B(a) [pg. 297 of PDF]). However the bill does provide a "conscience exemption" for members of religious sects whose tenets reject insurance benefits. The exemption in Section 501of the bill [IRC Sec. 59B(c)(5) at pg. 299 of PDF] tracks the exemption from payment of social security and self-employment taxes for members of groups such as the Old Order Amish, described in Section 1402(g) of the Internal Revenue Code. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• See Hoon Peow, History of Islamic Law in Malaysia - A Critical Reconsideration ,(November 1, 2009).
• Andrew F. March, The Uses of Fitra (Human Nature) in the Legal and Political Theory of ‘Allal Al-Fasi: Natural Law or 'Taking People as They Are'?, (November 4, 2009).
• Robert A. Kahn, Flemming Rose, the Danish Cartoon Controversy, and the New European Freedom of Speech, (U of St. Thomas Legal Studies Research Paper No. 09-24 (Oct. 2009)).
• Marci A. Hamilton, The Constitutional Limitations on Congress's Power Over Local Land Use: Why the Religious Land Use and Institutionalized Persons Act is Unconstitutional, (July 31, 2009).
• Geoffrey P. Miller, Origin of Obligation: Genesis 2:4b-3:24, (NYU School of Law, Public Law Research Paper No. 09-60 (Oct. 2009)).

From SmartCILP and elsewhere:

• Gregory C. Downs, Religious Liberty That Almost Wasn't: On the Origin of the Establishment Clause of the First Amendment, 30 University of Arkansas Little Rock Law Review 19-29 (2007).
• Shannon McSheffrey, Sanctuary and the Legal Topography of Pre-Reformation London, 27 Law & History Review 483-514 (2009).
• Najwa Shihab & Yanuar Nugroho, The Ties That Bind: Law, Islamisation and Indonesia's Prosperous Justice Party (PKS), [abstract], 10 Australian Journal of Asian Law 233-267 (2008).
• Karin Carmit Yefet, What's the Constitution Got To Do With It? Regulating Marriage in Pakistan, 16 Duke Journal of Gender Law & Policy 347-377 (2009).
• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations-- 2009 Edition, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings (2009).

Some Israeli Marriage Registrars Refuse To Accept Conversions By Chief Rabbinate

YNet News today reports that particularly in the Israeli cities of Ashkelon and Rishon LeTzion, marriage registrars employed by Israel's Chief Rabbinate are refusing to recognize the legitimacy of conversions to Judaism performed by the Chief Rabbinate for many immigrants during their military service in the IDF. Apparently at a meeting of chief rabbis of various Israeli cities three months ago, ultra-Orthodox members urged cities to refuse to accept the validity of Orthodox conversions where, subsequently, the individual involved does not observe all aspects of Jewish religious law. Marriage registrars who disagree with the more liberal conversion policy applied by the Chief Rabbinate following the report of the Ne'eman Committee in 1998 are advising couples to register in another city. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Rider v. Yates, 2009 U.S. Dist. LEXIS 101009 (ED CA, Oct. 27, 2009), a California federal magistrate judge recommended that an inmate be permitted to move ahead with a free exercise, due process, equal protection and RLUIPA challenge to the destruction of his copy of The Book of Shadows, a sacred Satanist text. However the court found insufficient allegations regarding a discriminatory policy against pagans.

In Collins v. Levenhagen, 2009 U.S. Dist. LEXIS 101390 (ND IN, Oct. 29, 2009), an Indiana federal district judge rejected an inmate's claim that his free exercise rights and his rights under RLUIPA were infringed when Native American religious services were scheduled on Wednesdays at the same time he voluntarily worked in a prison job.

Bowen v. Florida Parole Commission, 2009 U.S. Dist. LEXIS 102880 (MD FL, Oct. 20, 2009), was a habeas corpus action brought by an inmate who was re-imprisoned for violating the conditions of his early release. A Florida federal district judge held that the habeas action was not the proper mode for considering plaintiff's claim that his free exercise rights had been violated by the requirement that he use no alcohol or intoxicants. Plaintiff, a Catholic, argued that this prevented him from taking wine during communion. Plaintiff's rearrest was not based on a violation of this condition, but instead on violations of other conditions of his release.

In Pappas v. Oakland County, 2009 U.S. Dist. LEXIS 102946 (ED MI, Nov. 5, 2009), a Michigan federal district court accepted the recommendation of a federal magistrate judge (2009 U.S. Dist. LEXIS 102951, Oct. 15, 2009), to dismiss a claim against the county by an inmate who alleged that while in a special jail unit for at-risk inmates, he was denied the opportunity to attend church services.

Abuse Victims Agree To Delay In Trials Against Delaware Catholic Parishes

On Friday, according to AP, attorneys in 78 clergy abuse lawsuits that have been filed in Delaware agreed to delay going to trial. The suits name the Catholic Diocese of Wilmington and various parishes. The Diocese recently filed for bankruptcy (see prior posting) and a stay was placed on litigation against it. However the bankruptcy filing did not cover parishes that were named as co-defendants. Friday's agreement extends the delay in litigation to them as well, though not to five cases in which the diocese is not a co-defendant. In exchange, the diocese agreed to furnish plaintiffs with the personnel files of a dozen suspected priests, and to disclose information on liability insurance coverage. The agreement will allow the diocese to focus on the bankruptcy proceedings. Plaintiffs will be allowed to take depositions from seven of the accused priests in January, and the trial in a suit by one gravely ill victim is proceeding.