Senate Committee Approves Feldblum For EEOC

Last Thursday, the Senate Health, Education, Labor and Pensions Committee approved and sent to the full Senate the nomination of Chai R. Feldblum to be a commissioner on the Equal Employment Opportunity Commission. (Committee press release.) A coalition of conservative Christian groups are attempting to block Feldblum's nomination, concerned about her record as a gay rights activist and her pro-abortion record. (LifeNews, 12/13). A letter opposing the nomination, drafted by the Traditional Values Coalition, has attracted over 100 signers. (Charisma News 12/9). Here is Feldblum's statement at her confirmation hearings last month.

Dutch Court Says Public Transport Company Can Ban Employees From Wearing Religious Necklace

A district court in the Netherlands has ruled that Amsterdam's public transport company, GVB, can prohibit staff from wearing necklaces over their uniforms during working hours, even when a cross, as a religious symbol, is hanging on the necklace. NIS reports today that the suit, brought by an Egyptian Christian male tram conductor, claimed that the ban was discriminatory, especially since Muslim women conductors are allowed to wear headscarves. However the court said that there are other ways to wear a cross, such as on an armband or ring. Also the headscarves that employees are permitted to wear include the GVB logo, so can be seen as part of the uniform instead of a religious symbol.

Final Decision Denies Attorney Fees and Court Costs To High School Teacher

Yesterday's Orange County Register reports that a California federal district judge yesterday issued an opinion affirming an earlier tentative ruling, holding that high school student Chad Farnan is not liable for attorneys' fees incurred by his high school teacher in Farnan's suit against him. Farnan sued high school history teacher James Corbett, the school district and the teachers' union over anti-Christian remarks made by Corbett. While the court found that one statement by Corbett amounted to a violation of the Establishment Clause, it held that Corbett was not liable for damages because he was entitled to qualified immunity. In the current decision, the court concluded that Farnan's suit was not frivolous, baseless or vexatious, a prerequisite for defendant to obtain an award of attorneys fees under 42 USC Sec. 1988. (See prior posting.) The court also reversed an October ruling by the court clerk's office that awarded Corbett court costs. (See prior posting.) Both sides have already appealed the case to the 9th Circuit.

Egyptian Court Reverses Al-Ahzar Ban On Niqab

ANSAmed yesterday reported that in Egypt, the Administrative Tribunal in Cairo has ruled unconstitutional a ban on women students wearing the niqab. The controversy began when in October, Egypt's top cleric, Mohammed Sayyed Tantawi, announced 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. (See prior posting.) Then Education Minister Yustri El Gamal banned the niqab in public schools. The court ruled that the ban violates personal and religious freedom guaranteed by Egypt's constitution. In 2006, Egypt's Council of State held that American University in Cairo could not ban women from wearing the niqab. (See prior posting.) A committee of the Supreme Administrative Court issued a similar ruling in 2007. (See prior posting.)

Unenforceable North Carolina Provision Barring Atheists From Office Is Focus of Attention [Corrected]

Yesterday's Asheville Citizen-Times reports on a story about a newly-elected Asheville, North Carolina councilman that has inexplicably been carried repeatedly by online media. Cecil Bothwell who took his oath as city councilman last week affirming, rather than swearing, to uphold the law, and not placing his hand on any sacred text, says he is an atheist, or at least a post-theist. All of this is rather unremarkable as is the fact that North Carolina's state constitution (Art. VI, Sec. 8) still has in it now clearly unenforceable language providing that any person "who shall deny the being of Almight God" is disqualified from holding public office. Ever since the U.S. Supreme Court's 1961 decision in Torcaso v. Watkins, it is clear that even though the state never got around to removing the provision from its constitution, it cannot be applied consistent with the U.S. Constitution.

Nevertheless, former Asheville NAACP President H.K. Edgerton, who is a Southern Heritage activist, has suggested that he might sue Bothwell. This news account and others (such as AP) then suggest that such a suit might tie Bothwell up in litigation for years:

But the federal protections don't necessarily spare atheist public officials from spending years defending themselves in court. Avowed atheist Herb Silverman won an eight-year court battle in 1997, when South Carolina's highest court granted him the right to be appointed as a notary despite the state's law.

Overlooked in this suggestion is the fact that Bothwell is in office, while the 1997 case, Silverman v. Campbell, involved a plaintiff who had been denied appointment to office and had to sue to obtain the appointment. The Silverman case specifically held that Art. VI, Sec. 2 of the South Carolina Constitution, a comparable provision requiring a belief in God to hold office, violates the U.S. Constitution.

NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.

Rahm Emmanuel Lights National Menorah On Sunday

Yesterday, White House chief of Staff Rahm Emanuel lit the National Menorah on the Ellipse in front of the White House. The event was sponsored by Chabad. According to AP, Emanuel stood in a cherry picker that lifted him up to light the menorah in front of about 1000 onlookers. This is the 30th anniversary of the first National Menorah lighting, attended in 1979 by then-President Jimmy Carter. (Arutz Sheva). According to Chabad, the ceremony featured the U.S. Air Force Band and "The Three Cantors."

Russian Museum At Odds With Orthodox Church Over Loan of 14th Century Icon

Today's Moscow Times reports that officials at St. Petersburg's Russian Museum are distressed at the decision made by the Russian Republic's Culture Ministry last week to lend a fragile 14th century icon of the Virgin Mary in the Museum's collection to a newly-constructed church in an upscale gated community. The Alexander Nevsky Church has no relationship with the icon, but the Russian Orthodox Church generally believes that icons should serve their original purposes of being available to worshippers. This dispute over the icon, originally from a church in the town of Toropets, is part of a larger dispute between preservation experts and the Russian Orthodox Church over the use of culturally and religiously valuable objects. Visualrian has photos of the delivery of the icon to the church.

India's Parliament Given Proposal To End "Bigamy Through Conversion To Islam"

According to DNA, last Thursday the Law Commission of India forwarded to Parliament its August 2009 report titled Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings. The report suggests amending the Hindu Marriage Act of 1955 and various other marriage statutes to bar a person who was married as a non-Muslim from marrying again even after converting to Islam, unless the first marriage is dissolved or declared null and void. Muslim and Christian groups are both critical of the proposal. They oppose government interference of any kind in a person's right to choose his or her religion.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, The Ballot, the Bimah, and the Tax Code, (CCAR Journal: The Reform Jewish Quarterly, Forthcoming).
• Jose Antonio Seoane, The Boundaries of the Medical Conscientious Objection - About the Refusal of a Blood Transfusion by a Jehovah’s Witness, (InDret, Vol. 4, 2009).
• Lyman P. Q. Johnson, Re-Enchanting the Corporation, William & Mary Business Law Review, Forthcoming).
• Frederick Schauer, Social Epistemology, Holocaust Denial, and the Post-Millian Calculus, (Regulating Hate Speech: Context, Content, and Remedies, Michael Herz & Peter Molnar, eds., Cambridge University Press, 2010).
• Stephen G. Gilles, Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?,(Notre Dame Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Symposium. International Protection of Religious Freedom: National Implementation. Articles by Zhuo Xinping, Denise Meyerson, Gennadiy Druzenko, Evaldo Xavier Gomes, Guillermo Garc¡a-Montufar Sarmiento, Daniel Alegre Porras, Sergio Gonzalez Sandoval, Octavio Lo Prete and Jorge Precht Pizarro. 2009 BYU Law Review 513-704.
• Symposium: Law and Religion. Lecture by Cardinal Roger Mahony. Articles by Robert J. Delahunty, Chad Marzen, Kevin Pybas and Lael Daniel Weinberger. 86 University of Detroit Mercy Law Review 603-766 (2009).
• Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 Pennsylvania Journal of Constitutional Law 1 (2008).

Recent Prisoner Free Exercise Cases

On Nov. 30, the U.S. Supreme Court denied certiorari in Chavis v. Fischer, Docket No. 09-7079 (Order List). In the case the U.S. 2nd Circuit Court of Appeals dismissed an inmate's claim that his free exercise rights were infringed when he was required to work on Sundays. (See prior posting.)

In Desimone v. Bartow, 2009 U.S. App. LEXIS 26687 (7th Cir., Dec. 8, 2009), the 7th Circuit rejected an inmate's free exercise and RLUIPA claims, finding that he did not establish a substantial burden on his free exercise of religion. Plaintiff complained that authorities had confiscated his encoded journals that he believed allowed him to maintain a separate realm of thought to conform to the teachings of Yahwism.

In Allen v. Passaic County Jail, 2009 U.S. Dist. LEXIS 113560 (ED PA, Dec. 4, 2009), a Pennsylvania federal district court refused to dismiss a former inmate's claim that his free exercise rights were violated when, because of jail overcrowding, he was unable to attend religious services.

In Hamilton v. Hernandez, 2009 U.S. Dist. LEXIS 113140 (ND CA, Nov. 19, 2009), a California federal district court dismissed an inmate's claims that prison authorities interfered with his practice of his House of Yahweh religion by placing him in a cell with an inmate that did not observe the same religion, by on occasion refusing to release him from his cell to attend Sabbath services, by interfering with House of Yahweh Sabbath services, by failing to provide him a religious diet, and by her infringements and retaliatory action.

In Stewart v. Klein, 2009 U.S. Dist. LEXIS 113040 (D AZ, Nov. 19, 2009), an Arizona federal district court refused to overturn a jury's verdict rejecting an inmate's claim that his free exercise of religion was substantially burdened by receiving meals containing meat and egg products. and that defendant, the kitchen manager, should have corrected the problem.

In Garrison v. Michigan Department of Corrections, 2009 U.S. Dist. LEXIS 114719 (ED MI, Dec. 9, 2009), a Michigan federal district court accepted most of a federal magistrate judge's recommendations (2009 U.S. Dist. LEXIS 114640, Oct. 16, 2009), and dismissed objections to various restrictions imposed by prison officials on plaintiffs' Native American Traditional Spiritual Ways religious ceremonies.

Chirstian Leaders Broadly Oppose Uganda's Proposed Anti-Homosexuality Bill

In the wake of a report issued last month by Political Research Associates charging U.S. conservatives with using churches in Africa to promote homophobia on that continent (see prior posting), USA Today reports that last week 75 Christian leaders from a variety of backgrounds signed a Statement (originally released 12/7) denouncing the Anti-Homosexuality Act of 2009 (full text) currently under consideration by the Parliament of Uganda. (Release by Faith in Life.) The Statement said in part:

Regardless of the diverse theological views of our religious traditions regarding the morality of homosexuality, in our churches, communities and families, we seek to embrace our gay and lesbian brothers and sisters as God's children worthy of respect and love.

Subsequently two other influential leaders came out with statements against the legislation-- Pastor Rick Warren (USA Today report; Warren' statement (12/10)) and Archbishop of Canterbury, Rowan Williams (Ekklesia 12/12.)

Bloomberg News (12/9) reports that a revised version of the bill will drop the death penalty (imposed for "Aggravated Homosexuality") and life imprisonment for gays-- provisions that had particularly generated religious opposition. The revised bill reportedly will also encourage counseling to encourage changes in sexual orientation.

Developments On Vatican Treaties With Israel, Brazil

Asia News reports on Thursday's meeting of Bilateral Permanent Working Group between the Holy See and the State of Israel. The talks over implementation of the 1993 Fundamental Agreement between the Vatican and Israel are dealing with issues of Church property and taxation. Progress is slow because of the complexity of the matters, but the atmosphere of Thursday's talks in the Vatican were described as friendly, with dates for further meetings at the plenary and working levels announced.

Meanwhile the Concordat between the Holy See and Brazil signed last year entered into force on Thursday with a formal ratification ceremony in the Vatican. Zenit reports that that the agreement (full text) provides for religious education in public schools; provides tax exemptions for religious institutions; recognizes ecclesiastical decisions on issues of marriage; and recognizes ecclesiastical academic titles.

Catholic Bishops Say Clergy Exemptions In Britain's Proposed Equality Bill Are Too Narrow

On December 15, Britain's House of Lords is scheduled to debate the proposed Equality Bill that has already passed the House of Commons. The Bill is designed to consolidate into a single statute the various anti-discrimination laws that Britain has enacted. (Background.) Britain's Catholic Herald and the Boston Pilot both report on the briefing for Catholic members of the House of Lords prepared by the Catholic Bishops of England and Wales who are concerned that the employment discrimination exemptions for clergy are too narrow. The bill provides an exemption from ban on employment discrimination on the basis of sex, marital status or sexual orientation for individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)." (Schedule 9, Sec. 2(8)).

The bishops say that many priests do not spend 51% of their time in these two activities. Instead they may be involved for much of their time in pastoral work, private prayer and study or administration and building maintenance. They say the bill may well make it unlawful for the Church to require that a Catholic priest be male, unmarried or not in a same-sex civil partnership, since no priest would be able to demonstrate that he spends most of his time leading worship or explaining doctrine. Last week the House of Commons defeated a proposed amendment that would have allowed religious organizations to hire only people whose conduct was consistent with the Bible's teachings. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Dutch Muslim Lawyer Cleared of Contempt For Refusing To Stand, Wearing Hat

In the Netherlands, the appeals chamber of the Bar Association's disciplinary council has acquitted Muslim lawyer Mohammed Enait on three contempt of court charges. NIS today reports that one charge involved Enait's refusal to rise, as is customary, when the judge enters the courtroom. Enait says that his Muslim religion teaches that everyone is equal, and rising would mean he is subservient. He was also charged because he wears an Islamic head covering in court, and because of comments he made about a judge during a TV talk show.

ACLU Challenges Illinois' Increase In Lobbyist Registration Fees, Including Church Exemption

The ACLU announced yesterday that it has filed a federal lawsuit in Illinois seeking to block the January 1 increase in fees for registering as a lobbyist for a non-profit organization under the Illinois Lobbyist Registration Act. The complaint (full text) in ACLU of Illinois v. White, (ND IL, filed 12/11/2009) sets out two challenges to the increased fees. First it alleges that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. Second it claims that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination.

Hanukkah Greetings, Party Plans From the White House

The White House today released a statement (full text) from the President sending warmest wishes from him and Michelle to all who are celebrating Hanukkah. The statement says in part:

Hanukkah is not only a time to celebrate the faith and customs of the Jewish people, but for people of all faiths to celebrate the common aspirations we share.

The White House also released a Hebrew translation of the President's statement. Hanukkah begins at sundown today and is celebrated for eight days.

Meanwhile the New York Times yesterday reported on the kerfuffle surrounding plans for this year's White House Hanukkah party. Rumors began circulating, first in the Israeli press and then in the U.S., that President Obama had cut the number of invitees from the Bush administration's 800 down to 400. Apparently the reality is that the Bush White House invited 600 to its last Hanukkah party, while Obama is inviting 550. Eyebrows were also raised over the invitations sent out by the White House. They invited their recipients to "a holiday reception" on Dec. 16, without mentioning Hanukkah. Meanwhile, the Forward last week carried an interesting history of Hanukkah (or its absence) at the White House through various presidencies.

Defamation Counterclaims By Charter School Against ACLU Dismissed

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 114738 (D MN, Dec. 9, 2009), a Minnesota federal district court dismissed counterclaims for defamation and tortious interference with contract brought by the sponsor of a charter school against the ACLU that was suing it alleging Establishment Clause violations. The counterclaims were based on statements made by the ACLU's executive director, who repeatedly insisted that the Academy was using taxpayer dollars to operate a sectarian Muslim school. The court held that the body of law holding that government bodies may not sue for defamation applies to a publicly funded charter school. Even if this were not the case, TIZA as a public school would be subject to the requirement to show actual malice to recover for defamation. It has not alleged facts to support such a finding. Finally the court concluded that the tortious interference claims were dependent on the allegations of defamation, and should also be dismissed. Today's Minneapolis Star-Tribune reports on the decision.

Opening Grounds To Displays Gives County Problems On How To Choose

In Leesburg, Virginia, earlier this year the Courts Grounds and Facilities Committee banned all displays on courthouse property this year. However after a request to put a Christmas tree on the courthouse lawn, the Board of Supervisors last week voted to overturn the ban on displays. Now the county finds itself faced with requests to allow seven different displays, including a nativity scene, an interfaith display, a sign honoring the solstice and, most troubling to county officials, a suggestive parody of the Twelve Days of Christmas. Leesburg Today reported on Thursday that the county Board of Supervisors was scheduled to meet yesterday afternoon to create rules to help county staff decide which displays to permit.

Hanukkah Begins Tonight; Chabad Public Menorah Displays Grow

The Jewish festival of Hanukkah begins this evening. A press release yesterday from Chabad Lubavitch traces the largely successful 21-year campaign by Chabad to put up large Hanukkah menorahs on public property. The 1989 U.S. Supreme Court decision in County of Allegheny v. ACLU upheld a menorah display in downtown Pittsburgh against an Establishment Clause challenge, largely because it was combined with displays of a Christmas tree and a sign saluting liberty. This paved the way for today's situation summed up by Chabad: "From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands." Chabad spokesman Rabbi Yehuda Krinsky says that resistance to public displays of the menorah are diminishing, adding that "after all is said and done, the menorah is a universal symbol of freedom and independence which totally conforms with the American ideal."

Lawsuit Charges Indiana Lawyer Assistance Program With Religious Bias

The ArchAngel Institute is a Christian pro-life organization. Its Executive Director, Bryan Brown, a member of the Kansas bar since 1996, was denied admission to the Indiana bar in 2008 after psychological and psychiatric examinations ordered by the Indiana Board of Law Examiners and the Judges and Lawyers Assistance Program (JLAP). Brown this week filed suit in federal district court in Indiana challenging the operations of JLAP. The examinations they ordered resulted in findings that Brown suffered from a sub-clinical bipolar disorder, or from a personality disorder. The complaint (full text) in Brown v. Bowman, (ND IN, filed 12/8/2009) was filed pro se and in 265 paragraphs chronicles his view that he was the victim of collusion, bias and invidious discrimination. He argues that JLAP and its experts targeted his pro-life beliefs that grow out of his traditional Christian worldview and his constitutional, conservative political perspective. The complaint asserts 26 federal and state constitutional and statutory violations.

Describing the underlyinig facts on the ArchAngel Institute's website, Brown commented that he"was remanded from the Indiana Board of Law Examiners into the Judges and Lawyers Assistance Program on January 25, 2008 (the Feast day of St. Paul) and subjected to that agency’s machinations until they remanded him back to the Indiana Board of Law Examiners on January 22, 2009 (the anniversary of Roe v. Wade)." A column in yesterday's Ft. Wayne (IN) News-Sentinel examines the case.