Father's Suit Against Family Planning Clinic Dismissed

Yesterday's Corpus Christie (TX) Caller reported that a Texas federal district court has dismissed a lawsuit against a family planning clinic brought by a father who objected to the clinic's giving his 14-year old daughter the "morning after pill." He said that this violated her religious and moral training. South Texas Family Planning in Kingsville (TX), however, contended that federal guidelines for its grant funds preclude requiring parental consent to dispense so-called "Plan B."

German Family, Persecuted for Homeschooling, Granted Asylum In U.S.

Yesterday's Washington Post reports that a couple who fled from Germany to Tennessee in order to home school their children have been granted political asylum by a U.S. immigration judge. Uwe Romeike and his wife argued that they were persecuted in Germany for their evangelical Christian beliefs and for homeschooling their children to avoid public schools whose curriculum they believed to be opposed to Christian values. German law requires children to attend public or private schools. When the Romeikes ignored orders to send their children to school, German police came to their home and took the children to school. In 2007, Germany's highest appellate court ruled that in severe cases children could be removed from their home. The asylum grant allows the Romeike's to remain in Morristown, TN, where they have lived since 2008. A U.S. Immigration and Customs Enforcement spokesman refused to comment on whether the government would appeal the immigration judge's decision.

Rabbis Urge AG Holder To Grant Rubashkin Pre-Sentence Release

Six prominent Orthodox rabbis held a news conference in Washington, D.C. yesterday and then walked to the Department of Justice to deliver a letter to Attorney General Eric Holder protesting the pre-sentencing detention of Sholom Rubashkin, former manager of the Postville, Iowa Agriprocessors kosher meatpacking plant. Yeshiva World News carries the full text of the letter aruging that Rubashkin, who was convicted last November of bank fraud relating to a loan to Agriprocessors and of failing to pay livestock providers in a timely manner, does not present a flight risk. After these convictions, the government dropped immigration-related charges that had been filed against for employing illegal immigrants. The letter to Holder reads in part:

Mr. Rubashkin has been an observant Orthodox Jew since birth. His dietary observances prevent him from eating food that is not certified as kosher or that is heated in a non-kosher appliance. He, therefore, has eaten only cold food while in prison....

He and his wife have ten children, six of whom live at home with their parents. They have an autistic 16-year-old son who has always been heavily dependent on his father. Mr. Rubashkin’s absence from his home at this time – when he is most needed to prepare his children in case he is sentenced to a lengthy prison term – is devastating....

Moreover, his friends and his religious community have offered to pay for a 24-hour private armed security guard that will, in effect, imprison him in his home until his sentencing. A total of approximately 8 million dollars in the equity of 43 homes has been offered as security for his appearance. And to demonstrate the intensity of their conviction that he will not flee, rabbis have offered Torah scrolls – that may not be assigned except for the most extreme and exigent needs – as security for his presence.

The Forward yesterday also reported on the rabbi's news conference.

French Parliamentary Report Urges Ban of Full Face Veil In Public Buildings and Transport

A long awaited report from a French parliamentary committee released today recommends a ban on women wearing the Muslim full-face veil in hospitals, schools, government office and on public transport. It suggested that anyone ignoring the ban in a public building should be denied the services offered in it. The report called wearing of the full face veil "a challenge to our republic," and urged Parliament to pass a resolution declaring that the veil is contrary to French republican principles of secularism. According to BBC News, the report also recommends taking into account in asylum requests coercion to wear the full veil as an indication of a wider persecution, and calls for creation of a national school of Islamic studies. The report, however, stopped short of calling for a total ban on full face veils, viewing that as difficult to enforce and as possibly making France a target for terrorism. (See prior related posting.)

9th Circuit Rejects RLUIPA Zoning Challenge In Brief Opinion

In an unpublished opinion which sets out none of the relevant facts, the 9th Circuit last Friday in Lowry v. Yavapai County Board of Supervisors, (9th Cir., Jan. 22, 2010), rejected a pro se appeal in a case in which plaintiffs claimed that a zoning decision violated their free exercise rights. The court concluded that summary judgment was properly granted under RLUIPA and Arizona law because no substantial burden on the exercise of religion was shown. No 1st Amendment violation was shown because the zoning laws are neutral and generally applicable. Plaintiffs' equal protection claim failed because they did not identify others who were treated differently under the zoning ordinances.

Gnostic Center Fails Britain's "Public Benefit" Test To Be A Charity

In Britain, Third Sector today calls attention to a decision (full text) handed down last month by the Charity Commission rejecting an application by The Gnostic Center for registration as a charity. Apparently the decision, finding that the Center failed the "public benefit" test imposed by Britain's Charities Act, was reaffirmed earlier this month after a review by two of the Charity Commission's board members. (Third Sector). In the decision, the Commission found that the Center did not advance education for public benefit, concluding that : "It is not advancing education based on broad values that are uncontroversial, which would generally be supported by objective and informed opinion." The Commission also rejected the claim that the Center is advancing religion for the public benefit, holding:

To be a religion in charity law, there must also be a positive, beneficial, moral or ethical framework promoted, since a spiritually improving effect on its own is insufficient.... There was no evidence of shared morals or ethics amongst followers or the promotion of these by the Gnostic Center.

Finally the Charity Commission rejected the argument that the Center promoted moral or spiritual welfare or improvement of the community for public benefit, finding no demonstrable impact of the Center's teachings and practices on society.

Bangladesh Takes Next Step To Ban Religious Political Parties

Bangladesh has taken another step toward banning religious-based political parties. Earlier this month, the country's Supreme Court reinstated a constitutional ban on such parties. (See prior posting.) Now, according to RTT News today, the Election Commission has written to three Islamic political parties directing them to amend their charters to remove various religious references.

Federal Court Applies Younger Abstention In Challenge To Maine's Charitable Solicitations Act

In Christian Action Network v. State of Maine, (D ME, Jan. 13, 2010), a Maine federal district court applied the Younger v. Harris abstention doctrine and dismissed a challenge by Christian Action Network (CAN) to Maine's Charitable Solicitations Act. CAN claimed that the law imposes an unconstitutional prior restraint on speech, is overbroad, and that the state had discriminated against it on the basis of its viewpoint in refusing to renew its charitable solicitation license. The refusal was based on alleged unlicensed solicitation of donations in Maine in April 2009 and CAN's unauthorized use of the Governor's name in a mailing that suggested the Governor endorsed the anti-Muslim message in the group's newsletter. The court's decision requires CAN to assert its constitutional challenges in state enforcement proceedings that had been commenced before the federal lawsuit was filed. (See prior related posting.) WorldNet Daily today carries an article critical of the decision.

House of Lords Votes To Keep Broader Discrimination Exemptions For Religious Organizations

In Britain yesterday, the House of Lords defeated a a government attempt in the pending Equality Bill to narrow the employment discrimination exemptions currently available to religious institutions under the Employment Equality (Sexual Orientation) Regulations 2003. Under that law, religious organizations can discriminate on the basis of sexual orientation in order to comply with religious doctrine or to avoid conflicting with the strongly held religious convictions of a substantial number of the religion's followers. (Sec. 7(3).) The Equality Bill, which consolidates a number of Britain's anti-discrimination laws, would have limited the exemption to 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)." (See prior posting.)

In the House of Lords, Bishop Scott-Joynt and Baroness O'Cathain, an evangelical, proposed amendments to retain the 2003 exemptions. (Christian Today). According to Christian Institute, in three separate votes yesterday (216- 178, 195-174 and 177-172), the peers voted to approve Lady O'Cathain's amendments.

Malaysian Court Overturns Book Ban on Academic Essays on Muslim Women

In Malaysia, the Kuala Lumpur High Court today overturned a ban imposed by the Home Ministry in 2008 on the book Muslim Women and the Challenge of Islamic Extremism. According to The Edge, the book, which contains ten academic essays by activists and intellectuals, was published by a Muslim feminist NGO. In its opinion, the court rejected the Home Ministry's claim that the book would disturb public order and confuse Muslim women and those with a shallow knowledge of Islam. The court said: "Some may not agree with what is stated in the book but this is to be expected in an academic text, which this book is. But to conclude that it can create public disorder is something that cannot stand to objective scrutiny."

Christians In Nigerian City Charge Military With Genocide

In Nigeria, the Army's attempt to end Muslim-Christian violence in the the northern city of Jos (see prior posting) has led to charges of genocide by the Plateau State Christian Elders Consultative Forum. According to today's Nigeria Guardian, Christian leader charge that Maj-Gen. Saleh Maina has sent out military patrols made up only of Muslims who have then killed Christians. The military denied that only Muslim soldiers were being deployed. An editorial in today's Guardian gives more background, reporting that more than 4000 have been killed in sectarian violence in the city since 2001.

Ban on Burqa Debated In France, Britain

In France, a Parliamentary commission is scheduled to publish its recommendations tomorrow on whether the Muslim women should be banned from wearing the full-face veil in public places. According to Islam Online yesterday, France's Conference of French Imams supports a ban, saying that a majority of Muslim scholars agree that women are not required to cover their full face. They say that the issue is being used to "tarnish" the image of Muslims in France and elsewhere in the West. However other Muslim leaders in France oppose any ban. The leader of the French Council for the Muslim Religion says that a ban would infringe Muslim's religious freedom. The president of the French Union of Islamic Organizations says he believes that a ban would encourage Islamophobia, though he supports requiring women to identify themselves in public transportation when necessary for security purposes.

Meanwhile, in yesterday's London Times, Dominic Lawson published a powerful op-ed opposing suggestions by the UK Independence Party that the burqa be banned in Britain. He writes that the view of Muslims being portrayed by those who support a ban is reminiscent of these lines from Adolph Hitler in Mein Kampf: "As I was once strolling through the inner city, I suddenly happened upon an apparition in a long caftan with black hair locks. Is this a Jew? was my first thought ... but the longer I stared ... the more my first question was transformed into a new conception: is this a German?"

Recent Articles and Books of Interest

From SSRN:

• Lance McMillian, Atticus Finch as Racial Accommodator: Answering Malcolm Gladwell's Critique, (January 16, 2010).

Other articles:

• Richard F. Duncan, The "Clearest Command" of the Establishment Clause: Denominational Preferences, Religious Liberty, and Public Scholarships that Classify Religions, (South Dakota Law Review, forthcoming).

Recent Books:

• Michael Pasquier, Fathers on the Frontier: French Missionaries and the Roman Catholic Priesthood in the United States, 1789-1870, (Oxford Univ. Press, Dec. 2009).
• Tariq Ramadan, What I Believe, (Oxford Univ. Press, Sept. 2009).
• Beate Meyer, Hermann Simon & Chana Schutz (eds.), Jews in Nazi Berlin: From Kristallnacht to Liberation, (Univ. of Chicago Press, Dec. 2009).

Italian Judge Removed In Dispute Over Crucifixes In Courtrooms

In Italy, The Superior Council of Magistrates has removed Judge Luigi Tosti from the professional rolls of Italian magistrates. AP reported on Friday on the action that essentially removes Tosti from office. Tosti has refused to hear cases because there are crucifixes in Italian courtrooms. He has argued that defendants are entitled to be tried in secular courtrooms. The Council took similar action in 2006, but apparently reversed itself after Italy's Supreme Court of Cassation rejected Tosti's conviction for refusing to carry out official duties.(See prior posting.) The Council's most recent action came after Tosti refused to hear cases in a courtroom where the crucifix had been removed to meet his objections. Apparently he is insisting they be removed from all courtrooms.

Appellate Court Allows Church Parking Lot Over Historical Preservation Objections

In Friends of The Bethany Place, Inc. v. City of Topeka, (KS Ct. App., Jan. 22, 2010), the Kansas Court of Appeals, in a 2-1 decision, upheld the decision of the Topeka City Council to allow Grace Episcopal Cathedral to build a parking lot on a tract in downtown Topeka that is listed on the Register of Historic Kansas Places. The State Historical Preservation Officer opposed the project and the district court ruled against the project. (See prior posting.) However the Court of Appeals reversed, finding that the district court improperly "went beyond the record and reweighed the evidence before the Council in finding what it considered to be feasible and prudent alternatives to the Church's proposed project." Judge Greene dissented, saying that he "would affirm the district court's decision setting aside the Council's action as arbitrary, capricious, and unreasonable."

Recent Prisoner Free Exercise Cases

In Merrell v. Lawler, 2010 U.S. Dist. LEXIS 3218 (MD PA, Jan. 15, 2010), a Pennsylvania federal district court dismissed an inmate's free exercise claim, but with leave to amend. Plaintiff alleged that because of a back injury, he was unable to climb steps to get to the fourth tier where the chapel was located. However he failed to name defendants that were responsible for obstructing his ability to use the chapel.

In Edwards v. Bruno, 2009 Conn. Super. LEXIS 3305 (CT Super., Nov. 9, 2010), a Connecticut trial court rejected claims of a Jewish prisoner that he was not given a reasonable opportunity to pursue his faith at Passover. He was given 7 pounds of matzoh, seder food prepared by an ordained rabbi, and a one-on-one seder conducted by the Protestant chaplain (who was also a Messianic rabbi).

In Rubio v. Diaz, 2010 U.S. Dist. LEXIS 3776 (WD TX, Jan. 15, 2010), a Texas federal magistrate judge dismissed free exercise and RLUIPA claims by an inmate who complained that his writing material, including his Bible and his Bible study correspondence, were confiscated pursuant to a subpoena generated by an investigation by the Texas Rangers. He claimed his personal Bible had the names and addresses of his family members in it, and he needed it to communicate with them. He says it also had sentimental value to him.

In Canada v. Ray, 2010 U.S. Dist. LEXIS 4115 (WD VA. Jan. 19, 2010), a Virginia federal magistrate judge recommended that a Muslim inmate be permitted to move forward with his claim that his free exercise rights and his rights under RLUIPA were violated when he was required to either face discipline or take a tuberculosis skin test which he claimed contained alcohol or pork products, both forbidden by Muslim law.

In Reynolds v. Newcomer, 2009 U.S. Dist. LEXIS 123469 (WD LA, Dec. 21, 2009), and in Carr v. Newcomer, 2009 U.S. Dist. LEXIS 123559 (WD LA, Dec. 21, 2009), a Louisiana federal magistrate judge concluded that inmates' religious exercise was not substantially burdened, and recommended that the claims in two similar cases be dismissed as frivolous. Plaintiff claimed they have been denied the right to receive religious material such as Bibles, books, and magazines; and that the warden allows Pentecostalists and other Christian "sects" to proselytize inmates in the dormitory's common day room. One of the plaintiffs also claimed that shortly after his arrival at the prison, his religious pendant -- a gift from his grandfather -- was confiscated and that he was denied a Bible shipped to him because it was improperly packaged.

In Windham v. Pierce, 2010 U.S. Dist. LEXIS 4518 (SD TX, Jan. 21, 2010), a Native American inmate challenged the requirement he take a test before being transferred to a Native American designated prison. When he was transferred without taking the test, he objected that there is no volunteer to lead services and the circle is inactive. His first claim was dismissed as moot, and his second was dismissed without prejudice because it should be brought in a different venue.

In Jihad v. Fabian, 2010 U.S. Dist. LEXIS 4749 (D MN, Jan. 21, 2010), a federal district court approved a magistrate's recommendations (2009 U.S. Dist. LEXIS 123652, Dec. 23, 2009) and refused to grant a temporary restraining order or preliminary injunction in response to plaintiff's complaints regarding impediments to his practice of Islam. Plaintiff, claiming a violation of his free exercise rights and of RLUIPA, alleged that authorities failed to provide a Muslim chaplain and enough Islamic services; prohibited religious meetings without a volunteer present; failed to provide Halal meals and a location where he can perform five daily salat (prayers); and prohibited him from wearing a Kufi (prayer cap) or an Islamic medallion outside of his clothing.

Mother Who Starved Children, Relying on God, Convicted of Endangerment

The Newark (NJ) Star-Ledger reports that a Sussex County (NJ) jury on Thursday convicted 50-year old Estelle Walker of child endangerment. Police found Walker's four malnourished children in a lakeside cabin in 2006. Walker's lawyer claimed that Walker was not responsible because she acted out a a delusional religious belief that God will provide. She did not eat either, and merely prayed with her children. Walker faces up to ten years in prison on each of four counts of second-degree endangerment. Earlier she had rejected a plea bargain that would have allowed her to go free with the one year time already served while she had not been able to post bail. She said she had been directed through prayer not to accept the arrangement. During Walker's trial, a psychiatrist testified that she is religious to an extreme degree, but not mentally ill.

Philippines Makes Eid'l Adha a National Holiday

The Manila (Philippines) Bulletin on Friday reported on the signing last month by President Maria Gloria Arroyo of a new law that makes the Muslim holiday of Eid'l Adha (Feast of the Sacrifice) a national holiday in the Philippines. Under a law that Arroyo signed in 2002, Eid'l Fitr is already a national holiday. The Office of Muslim Affairs has been given the authority to determine the dates of the two Muslim festivals which come at different times each year on the secular calendar. At a recent Muslim Inter-Organizational Meeting, participants also debated a bill that had been introduced into the Philippine Parliament to prohibit the pejorative use of "Muslim" and "Christian" to identify those charged with crimes. Only 5% to 10% of the Philippine population are Muslim. (Wikipedia).

Tribal Government Funds Rebuilding of Catholic Church On Reservation

The Indian Civil Rights Act of 1968 imposes most of the restrictions found in the Constitution's Bill of Rights and in the 14th Amendment on Tribal governments. However, it does not impose Establishment Clause limitations on tribes. This has permitted the tribal government of California's Rincon Indian Band to pay $3.2 million in tribal funds derived from Harrah's Rincon Casino to rebuild an expanded Catholic Church on the Rincon reservation. Today's San Diego Union Tribune reports that the prior Chapel, built in the 1930's, was one of 65 buildings on the reservation destroyed by fire in 2007. Approximately 80% of the Rincon tribe members are Catholic.

Pope Keeps Cardinal Bertone On As Secretary of State

Zenit reported this week that Pope Benedict XVI will keep Cardinal Tarcisio Bertone as the Vatican's Secretary of State even though the Cardinal has reached age 75 which makes him eligible for retirement. A letter from the Pope announcing his decision said that Bertone had played a particularly valuable role in building a dialogue with Archbishop Marcel Lefebvre who is the founder of the traditionalist Society of St. Pius X.