Recent Articles of Interest

From SSRN:

• Stuart P. Green, Review Essay: Golden Rule Ethics and the Death of the Criminal Law's Special Part, (Crime and Culpability: A Gheory of Criminal Law, Larry Alexander, Kimberly Kessler Ferzan, Stephen Morse, eds., Cambridge University Press, 358 pp., 2009 ).
• Thomas M. Mengler, Why Should a Catholic Law School Be Catholic?, (Journal of Catholic Social Thought, Vol. 6, 2010).
• Robert K. Vischer, Whom Should a Catholic Law School Honor?: If Confusion is the Concern, Context Matters, (Journal of Catholic Legal Studies, 2010).
• Andrew M. M. Koppelman, The New American Civil Religion: Lesson for Italy, (George Washington International Law Review, Forthcoming).
• Robert K. Vischer, Conscience and the Common Good, (Journal of Catholic Legal Studies, 2010).
• Tally Kritzman, 'Otherness' as the Underlying Principle in Israel's Asylum Regime, (Israel Law Review, Vol. 42, No. 3, pp. 603-627, 2010).
• Gregory Sobolski & Matt Steinberg, An Empirical Analysis of Section 1983 Qualified Immunity Actions and Implications of Pearson v. Callahan, (Stanford Law Review, Vol. 62, pg. 523, 2010).
• Dan Ernst, The Meaning and Liberal Justifications of Israel's Law of Return, (Israel Law Review, Vol. 42, No. 3, pp. 564-603, 2010).

From SmartCILP:

• Jonathan D. Boyer, Education Tax Credits: School Choice Initiatives Capable of Surmounting Blaine Amendments, 43 Columbia Journal of Law & Social Problems 117-149 (2009).
• Moeen H. Cheema & Abdul-Rahman Mustafa, From the Hudood Ordinances to the Protection of Women Act: Islamic Critiques of the Hudood Laws of Pakistan, 8 UCLA Journal of Islamic & Near Eastern Law 1-48 (2008-2009).
• Michael Cobb, Pioneers, Probate, Polygamy, and You, 11 Journal of Law & Family Studies 275-302 (2009), 2009 Utah Law Review 323-350. [Abstract].
• John F. Scarpa Conference on Law, Politics, and Culture. Introduction by Patrick McKinley Brennan; articles by Kent Greenawalt, Richard Schenk, John T. McGreevy, Jesse H. Choper, Geoffrey R. Stone, Patrick McKinley Brennan and Richard W. Garnett; reply by Martha Nussbaum. 54 Villanova Law Review 579-701 (2009).
• Symposium. The Maryland Constitutional Law Schmooze. Foreword by Mark A. Graber; articles by David Gray, Lief H. Carter, David Bogen, Leslie F. Goldstein, Beau Breslin, Samuel J. Levine, Henry L. Chambers, Jr., Marci A. Hamilton, Carol Nackenoff and Frederick Mark Gedicks. 69 Maryland Law Review 8-161 (2009).

Recent Prisoner Free Exercise Cases

In Allison v. Martin, 2010 U.S. Dist. LEXIS 4928 (ED MI, Jan. 22, 2010), a Michigan federal district court adopted recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 123727, Nov. 5, 2009), and rejected various free exercise and RFRA claims by an inmate who objected to the lack of Jewish religious services, wanted religious materials and claims he was denied participation in the prison's kosher meals program.

In Sareini v. Burnett, 2010 U.S. Dist. LEXIS 4925 (ED MI, Jan. 22, 2010), a Michigan federal district court adopted recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 123726, Dec. 21, 2009) granting summary judgement on some claims and denying it on others in a case in which a Shi'a Muslim inmate complained about restrictions on his religious exercise. The court dismissed a complaint that no separate Shi'a religious services were offered, but refused to dismiss claims seeking Halal meat, asking to be allowed to have certain religious items and accommodating observance of Muslim holidays.

In Mayo v. Norris, 2010 U.S. Dist. LEXIS 5243 (ED AR, Jan. 22, 2010), an Arkansas federal district court adopted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 123899, Dec. 18, 2009) and rejected a petition for a writ of habeas corpus by petitioner who objected on religious grounds both to his conditions of parole and his underlying conviction (after a negotiated guilty plea) for possessing methamphetamine. Petitioner quoted various Biblical verses that he said were inconsistent with the requirement he maintain a residence and not associate with convicted felons. He also argued that his sentence was harsher than what God's judgment would have been.

In Wilkerson v. Jenkins, 2010 U.S. Dist. LEXIS 6602 (D MD, Jan. 27, 2010), a Maryland federal district court rejected an inmate's complaint that he was not permitted to wear his yarmulke outside his housing unit and that his work assignment interfered with his observance of the Sabbath.

In Ivory v. Tilton, 2010 U.S. Dist. LEXIS 6557 (ED CA, Jan. 8, 2010), a California federal magistrate judge, while permitting plaintiff to proceed with retaliation and excessive force claims held that "plaintiff's allegations that 'Defendants' in general harassed him, called him Kosher boy in front of other inmates, both under heated and burned his food, deprived him of his Kosher meals on several occasions, and failed to provide him with proper eating utensils are not sufficient to state any claims." Plaintiff was granted leave to amend on the dismissed claims.

In Scott v. Padula, 2010 U.S. Dist. LEXIS 6174 (D. SC, Jan. 26, 2010) a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 6173, Jan. 7, 2010), and denied a preliminary injunction to an inmate who wanted to have religious books pertaining to the Shetaut Neter faith while he is housed in the Special Management Unit.

In Lockamy v. Dunbar, 2010 U.S. Dist. LEXIS 6893 (ED TX, Jan. 28, 2010), a federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 124184, Oct. 6, 2009), and, among other things, rejected a RLUIPA challenge to application of prison contraband rules that precluded plaintiff from mailing religious articles torn out of a magazine (as opposed to sending the entire magazine) and a Christmas card that had been made from the back covers of copies of a prison publication.

In Yisrayl v. Walker, 2010 U.S. Dist. LEXIS 6785 (SD IL, Jan. 27, 2010), an Illinois federal district court permitted an inmate who practices the African Hebrew Israelite faith to proceed on some of his claims-- that officials refused to serve him unleavened bread, refused to serve him a special holiday meal, denied him access to religious books, videos and a turban and have not hired a clergy member of his faith.

Parental Rights Terminated For 13 Children From Alamo Ministries Compound

On Thursday, a Miller County, Arkansas trial judge terminated the parental rights of six members of the Tony Alamo Christian Ministries. Thirteen children from four families are involved. The Arkansas Democrat-Gazette reports that the children were taken into protective custody by the state in 2008 in an investigation of physical and sexual abuse at the Ministries' compound. (See prior posting.) A judge ruled that parents could be reunited with their children if they moved off church property and found jobs outside the Alamo Ministries so they are not financially dependent on it. (See prior posting.) The parents involve in Thursday's cases failed to move away. More details are unknown because the judge has imposed a gag order barring parents, attorneys and others from speaking to the press about the case. However a spokesperson for a parents rights group says that the rulings are unduly harsh because Ministries leader Tony Alamo is now in prison where he will likely spend the rest of his life. (See prior posting.) Parents say they will appeal Thursday's rulings. Also other appeals of removal of various of the children from the Tony Alamo compound are pending. The Arkansas Department of Human Services said that normally children would not be put up for adoption until all the appeals have been resolved.

Tennessee Adopts Curriculum Guidelines For High School Bible Courses

According to AP, last week the Tennessee State Board of Education approved guidelines for elective high school social studies courses teaching about the Bible and its historical content. The guidelines implement legislation passed in 2008 authorizing creation of a course focusing on "nonsectarian nonreligious academic study of the Bible and its influence on literature, art, music, culture and politics." (See prior posting.) A Tennessee ACLU spokesperson said the new guidelines appear sensitive to concerns that the classes not be used to try to covert students. The legislation did not require districts with existing Bible courses to move to the state curriculum. [Thanks to Scott Mange for the lead.]

Muslim Organization Objects To Remarks In Speech By California Mayor

The Council on American-Islamic Relations plans to file a complaint with the Justice Department's Civil Rights Division over the State of the City speech given this week by Lancaster, California's mayor, R. Rex Parris. Yesterday's Fresno Bee reports that in the speech, Parris said that he is "growing a Christian community," and urged voters to support a ballot measure in April that would endorse prayer at city meetings.

Rifqa Bary's Parents Seek to Withdraw Settlement Consent Entered Last Week

Last week, it seemed like the case of Rifqa Bary was finally over. Her Muslim parents agreed that the 17-year old girl who fled, fearing her life was in danger because of her conversion to Christianity, could stay with her Ohio foster family, and that everyone would get counseling. (See prior posting.) According to today's Columbus Dispatch, however, that agreement has been short-lived. Claiming misrepresentations and fraudulent inducement, Rifqa's parents now want to withdraw their consent to the deal, claiming that Franklin County (OH) Children's Services is improperly allowing Rifqa to have contact with Blake and Beverly Lorenz, the people in Florida who helped Rifqa run away. The parents say that Rifqa's attorney sent Rifqa's handwritten birthday card to Blake Lorenz for Rifqa. The card referred to Blake as "daddy". Rifqa's parents have now asked for Rifqa's Ohio foster parents to be removed as guardian ad litem.

FFRF Objects To Planned Mother Teresa Postage Stamp

A month ago, the United States Postal Service announced the commemorative postage stamps it plans to issue during 2010. One of the stamps will honor 1979 Nobel Peace Prize winner, Mother Teresa, a nun who worked among the impoverished in Calcutta, India. According to yesterday's Oregon Faith Report, the Freedom from Religion Foundation is objecting to the stamp because Mother Teresa is a religious figure. In response, Pacific Justice Institute will be sending a letter to the USPS offering legal support for the stamp.

North Carolina County's Sectarian Prayers Violate Establishment Clause

In Joyner v. Forsyth County, North Carolina, (MD NC, Jan. 28, 2010), a North Carolina federal district court adopted a magistrate's recommendations (see prior posting) and concluded that the Forsyth County Board of Commissioners' invocation policy, as implemented, violates the Establishment Clause. The court found that the prayers offered at Board meetings advance one particular faith and have the effect of affiliating the Board with that faith. The court said that going forward, the county has three options: (1) do not open meetings with prayers; (2) open meetings with non-sectarian prayers; or (3) implement an invocation policy that involves diversity and inclusiveness in the prayers offered. ACLU of North Carolina issued a release approving of the decision. AP reported on the decision.

Air Force Academy Adds Chapel Space For Earth-Centered Faiths; Talks With Secular Student Group

The U.S. Air Force Academy Chapel is adding a worship area for followers of Earth-centered religions, such as Wicca and Druidism. A release from the Academy reports that dedication of the new outdoor worship circle on the hill overlooking the Cadet Chapel and Visitor Center is tentatively scheduled for March 10. This will be the latest addition to sacred spaces already set aside for Protestant, Catholic, Jewish, Muslim and Buddhist worship. [Thanks to Rev. Jeanene Hammers for the lead.]

Meanwhile, the Colorado Springs Independent yesterday reported [scroll down] that the Air Force Academy's Freethinkers group has apparently gained consent of administrators to affiliate with national Secular Student Alliance and move out from the Academy's Special Programs In Religious Education. The move came after SPIRE discouraged the group last spring from officially inviting atheist Christopher Hitchens. (Background.) Instead Hitchens met off campus with cadets. [Thanks to Scott Mange for the lead.]

DHS Secretary Meets With Faith and Ethnic Leaders

A press release from the Department of Homeland Security reports that DHS Secretary Janet Napolitano met yesterday with leaders from Muslim, Sikh, South Asian and Arab communities. The meeting focused on ways that DHS can increase engagement, dialogue and coordination with, and enhance information sharing between, the Department and faith- and community-based groups.

Court Says Pastor's Defamation Is Not Barred By 1st Amendment

In Tubra v. Cooke, (OR App., Jan. 27, 2010), an Oregon appellate court reversed a trial court's judgment notwithstanding the verdict in an interim pastor's defamation claim against his former church and two of its officers. The jury had awarded damages to the pastor, but the trial court held that the First Amendment deprived it of jurisdiction. Disagreeing, the Court of Appeals said:

If the organization is of a religious character, and the alleged defamatory statements relate to the organization's religious beliefs and practices and are of a kind that can only be classified as religious, then the statements are purely religious as a matter of law, and the Free Exercise Clause bars the plaintiff's claim. In defamation law terms, those statements enjoy an absolute privilege.

If, however, the statements--although made by a religious organization--do not concern the religious beliefs and practices of the religious organization, or are made for a nonreligious purpose--that is, if they would not "always and in every context" be considered religious in nature--then the First Amendment does not necessarily prevent adjudication of the defamation claim, but the statements may nonetheless be qualifiedly privileged under established Oregon law.

In this case, the alleged defamatory statements--that the pastor had misappropriated money and had demonstrated a willingness to lie--would not "always and in every context" be religious in nature. Thus, even though the statements related to plaintiff's conduct as a pastor of the church, that fact does not render those statements absolutely privileged as a matter of law under the Free Exercise Clause. Rather, that fact gives rise to a qualified privilege.

Building Permit Charges Against Amish Farmer Dismissed on Free Exercise Grounds

In Jackson County, Wisconsin, a state trial court judge earlier this month dismissed on free exercise grounds charges against an Amish farmer and his wife that they failed to apply for a building permit to build a home and a second residence on their property. According to yesterday's Jackson County Chronicle, defendant Samuel F. Stolzfus refused to sign a building permit application on religious grounds because he did not know if he could adhere to the promise in it that he would comply with local ordinances and the state's uniform dwelling code. The court concluded: "The town has failed to establish a compelling governmental interest in requiring signed applications from the Amish and, therefore, may not enforce the ordinance against them." In the two-year old case, the town did not charge that there were actual safety problems with the buildings Stolzfus constructed.

UPDATE: Here it the full opinion in Town of Albion v. Stolzfus, (WI Cir. Ct., Jan. 7, 2010). [Thanks to Robert L. Greene.]

Indonesian Government Says 20% of Mosques Face Wrong Direction

Worshippers in mosques are supposed to face Mecca when the pray. According to today's Jakarta Globe, Indonesia's ministry of religion says that there are errors in the direction worshippers face in 20% of the country's mosques-- mainly in the earthquake-hit areas such as Yogyakarta, West Java and West Sumatra. The ministry suggests that mosques just have worshipers change the direction they are facing, rather than renovating the entire building.

Bill Proposed In California To Protect Clergy From Perfoming Same-Sex Marriages

As the federal court trial challenging the constitutionality of California's gay marriage ban continues (New York Times 1/27), proponents of same-sex marriage yesterday introduced a bill in the California legislature to make the prospect more appealing to opponents. The Civil Marriage Religious Freedom Act (SB 906) emphasizes the distinction between religious and civil marriage by changing language in state statutes relating to marriage to refer to "civil marriage." The bill goes on to add to the section which permits clergy to perform marriage ceremonies:

No person authorized by this subdivision shall be required to solemnize a marriage that is contrary to the tenets of his or her faith. Any refusal to solemnize a marriage under this subdivision shall not affect the tax exempt status of any entity.

According to LAist yesterday, both Equality California (press release) and the California Council of Churches back the measure.

1st Circuit Rejects Religious Persecution Claim By Chinese Woman Seeking Asylum

In Weng v. Holder, (1st Cir., Jan. 27, 2010), the U.S. 1st Circuit Court of Appeals upheld a decision by the Board of Immigration Appeal denying asylum, withholding of removal and protection under the Convention Against Torture to a native and citizen of China who claimed she has and in the future will likely face religious persecution. Jin Weng is an adherent of Zun Wang, a banned religion in China. An immigration judge had found Weng's testimony to be inconsistent with her earlier statements to immigration officials after she illegally entered the U.S. from Mexico. At that time, she did not mention religion but said she was fleeing China and feared returning there because of poverty and other nonreligious reasons. The judge rejected additional testimony by her at her immigration hearing regarding her religious persecution in China because he found her not to be a credible witness. Yesterday's National Examiner reports on the decision.

In West Bank, Mosques Become Part of Battle Between PA and Hamas

IPS yesterday reported that in the West Bank, the Palestinian Authority's Fatah Party is using mosques in its battle against rival Hamas, as well as against critics within its own party. Earlier this month, the PA Ministry of Religious Affairs distributed a prepared sermon that imams were ordered to read before Friday prayers. While the PA has been dictating imam's speeches for a year, the sermon earlier this month was particularly controversial. It attacked Qatar-based Sheikh Youseff El-Qaradawi, an outspoken opponent of PA President Mahmoud Abbas. When some worshippers hurled abuse at imams reading the sermons, PA security forces raided a number of mosques and arrested some of the worshippers.

Qaradawi is considered a prominent scholar of Islamic law. He condemned Abbas for thwarting U.N. action on a report critical of Israel's 2008 incursion into Gaza. The rhetoric is heated. Qaradawi called for Abbas to be stoned in Mecca if it is shown that he instigated Israel against Gaza. The controversial PA sermons delivered in response called Qaradawi an ignoramus and a puppet of the government of Qatar.

Court Applies Ministerial Exception to Dismiss Suit by Catholic School Teacher

In Weishuhn v. Catholic Diocese of Lansing, (MI Ct. App., Jan. 26, 2010), a Michigan appellate court dismissed a lawsuit brought by a Catholic school teacher who taught mathematics and religion to 6th, 7th and 8th graders. Plaintiff challenged her termination. The court concluded that plaintiff's duties were primarily religious in nature, and that the ministerial exception doctrine applies to both her Civil Rights Act claim and her Whistleblower Protection Act claim. The court said: "Termination of a ministerial employee by a religious institution is an absolutely protected action under the First Amendment, regardless of the reason for doing so." (See prior related posting.) Yesterday's Michigan Messenger reported on the decision.

Peres Addresses Bundestag On International Holocaust Remembrance Day

Today is International Holocaust Remembrance Day, as set by a 2005 United Nations Resolution. Marking the occasion, Israeli President Shimon Peres addressed the German Bundestag. (Full text of remarks.) In a wide-ranging speech, he urged that authorities bring to justice those still alive in Germany and elsewhere in Europe who participated in the genocide of the Nazi era. Reviewing the history of the Holocaust, he said:

The Nazi rabid hatred cannot be solely defined as "anti-Semitic." This is a commonly-used definition. It does not fully explain the burning, murderous, beastly drive that motivated the Nazi regime, and their obsessive resolve to annihilate the Jews. The war's objective was to conquer Europe; not to settle scores with Jewish history. And if we constituted, we the Jews, a terrible threat in the eyes of Hitler's regime, this was not a military threat, but rather a moral threat. An opposition to the desire that denied our faith that every man is born in the image of God, that we are all equal in the eyes of God, and that all men are equal.

House of Lords Today Debates Religious Hiring By Faith Schools

In Britain today the House of Lords will debate a series of amendments proposed by Baroness Turner of Camden to limit the extent to which voluntary-aided faith schools can hire teachers on the basis of religion. (Ekklesia, Accord Coalition). Under current law, these faith schools (which receive government support) can broadly discriminate in recruitment, pay and promotion on the basis of religion, and can dismiss teachers for conduct that is incompatible with the precepts of the school's religion. The amendments would require faith schools to show that discrimination on religious grounds is a "legitimate" and "proportionate" occupational requirement-- the same standard that currently applies to religious charities in Britain. The amendments would limit schools' present ability to apply religious criteria to those who teach only secular subjects and are not in leadership roles. (London Guardian op ed.) Today's debate follows a vote on Monday in which the Lords eliminated provisions in the Equality Bill that narrowed exemptions from the sexual orientation anti-discrimination provisions for religious organizations. (See prior posting.)

Focus on Family Ad Featuring Tim Tebow Will Run During Superbowl

According to yesterday's Gainesville Sun, the conservative Christian group Focus on the Family has raised over $2.5 million to run a 30-second ad during the Superbowl featuring former University of Florida quarterback Tim Tebow. The athlete is known for his Chritsian beliefs, often writing references to Bible verses in his eye black. (Photo from Huffington Post). He was the first home schooled athlete to be nominated for the Heisman Trophy. According to a press release earlier this month from Focus on the Family, Tim and his mother Pam will share a personal story centered on the theme "Celebrate Family, Celebrate Life." News accounts speculate that the ad will center on Pam Tebow's decision, after she became seriously ill, to ignore a doctor's recommendation that she have an abortion. She gave birth to Tim. The National Organization for Women has written CBS questioning why it made an exception to its policy against advocacy ads here. In response, CBS has announced it would consider other "responsibly produced" advocacy ads for the few remaining spots on the Feb. 7 Superbowl broadcast.