Cert. Denied In Bail Plea of Kosher Meat Plant Executive

Yesterday the U.S. Supreme Court denied certiorari in Rubashkin v. United States, (Docket No. 09-1099, April 19, 2010). (Order List.) In the case, the 8th Circuit Court of Appeals refused to release Sholom Rubashkin, former vice-president of the Postville, Iowa Agriprocessors, Inc., a kosher meat packing plant, on bail pending sentencing. (Full text of order.) Rubaskin was convicted by a federal jury on 86 counts of financial fraud. (See prior related posting.) Religion News Service reported yesterday that Rubashkin's Orthodox Jewish supporters are increasing their protests over his case as he faces a possible life sentence at his April 28 sentencing hearing. Through an online petition, supporters are urging that citizens voice their concerns to the Justice Department. According to RNS, through Twitter and Facebook some rabbis have called it a "sacred obligation" for Jews to contact the Justice Department on Rubashkin's behalf.

Supreme Court Hears Arguments In Christian Legal Society's Clash With Hastings' Discrimination Rules -- [Updated With Link To Transcript]

The U.S. Supreme Court this morning heard oral arguments in Christian Legal Society v. Martinez. In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) AP reports that the Justices seemed sharply split:

Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities.

Scotus Blog last week had an excellent background article on the case. Scotus Wiki has links to all the briefs and much more background. An editorial titled The End of Religious Freedom? in Christianity Today outlines the arguments of Christian religious groups who hope that the 9th circuit will be reversed; while an editorial in today's New York Times titled A Case of Discrimination urges the Court to support the University's position.

The full transcript of the arguments is available online. Scotus Blog also has podcasts of the oral arguments of counsel for both sides, recorded before the actual argument. Last week, the Court turned down media requests for same-day release of the audio tapes of oral arguments in the case. According to the National Law Journal, this is the seventh time this term that such requests have been rejected.

UPDATE: Constitutional Law Prof Blog also has an interesting analysis of the oral argument.

Alamo Seeks New Trial Because of Sentencing Judge's Religious Comments

Yesterday's Texarkana Gazette reports that self-proclaimed prophet and church leader Tony Alamo last week filed a motion for a new trial, arguing that the sentencing judge "imposed his own sense of religiosity" in sentencing Alamo to 175 year prison on Mann Act charges. Alamo was convicted last year of taking young girls across state lines for sex. In sentencing Alamo, Judge Harry F. Barnes told him: "Mr. Alamo, one day you will face a higher and a greater judge than me. May he have mercy on your soul." (See prior posting.)

Bankruptcy Court Awards Damages For Violation of Stay Through Rabbinical Court Proceedings

In In re Pachman, (SDNY Bkrptcy., April 14, 2010), a federal bankruptcy court awarded damages of $15,311, representing the debtor's attorneys' fees and costs, against a creditor who had been found to have violated the Bankruptcy Code's automatic stay on enforcement of claims. (11 USC Sec. 362.) The creditor continued proceedings against the debtor in a Rabbinical court after the bankruptcy petition had been filed and the stay took effect. The Rabbinical court issued a siruv, an order that would subject the debtor and his family to ostracism in the Orthodox Jewish community. While the court awarded actual damages, it found insufficient bad faith to justify an additional award of punitive damages. [Thanks to Joseph Landau for the lead.]

Recent Articles of Interest

From SSRN:

• Ruthann Robson, Sexual Justice, Student Scholarship and the So-Called Seven Sins, (Law and Sexuality, Vol. 19, p. 31, 2010).
• Liav Orgad, Creating New Americans: The Essence of Americanism under the Citizenship Test, (Houston Law Review, Vol. 47, No. 5, 2011).
• Paul Horwitz, Of Football, 'Footnote One,' and the Counter-Jurisdictional Establishment Clause: The Story of Santa Fe Independent School District v. Doe, (April 14, 2010).
• Bernadette A. Meyler, Constitutional Commitments and Religious Identity, (Cornell Journal of Law and Public Policy, Forthcoming).

From SmartCILP:

• Daniel Gordon, Madison 1, Bush 0: Survey Testing Mr. Madison's Hypotheses, 26 Touro Law Review 1-22 (2010).
• Frederick B. Jonassen, Free Speech and Establishment Clause Rights at Public School Graduation Ceremonies: A Disclaimer: The Preceding Speech Was Government Censored and Does Not Represent the Views of the Valedictorian, 55 Wayne Law Review 683-820 (2009).

Goldstone Will Not Attend Grandson's Bar Mitzvah In South Africa After Demonstrations Threatened

On Friday, both the New York Times and the South African Jewish Report carried articles on the pressure being placed on South African jurist Richard Goldstone that has led him to decide not to attend his grandson's Bar Mitzvah next month in the Johannesburg suburb of Sandton. Many Jews in South Africa are severely critical of Goldstone's Report to the United Nations on the 2008 Israeli incursion into Gaza. The South African Zionist Federation had threatened to hold demonstrations against Goldstone outside the Beth Hamedrash Hagadol synagogue where the event will take place. After negotiations between the various parties, Judge Goldstone, who is currently a Distinguished Visitor at Georgetown University Law School in Washington, D.C., says that he has agreed, in the interest of his grandson, not to attend the Bar Mitzvah service. A number of lawyers and judges in South Africa strongly criticized the threats against Goldstone. Lawyer George Bizos said that those applying the pressure "ought to hang their heads in shame."

Free Exercise Objection To Cellular Tower Rejected By Court

In Jaeger v. Connecticut Siting Council, 2010 Conn. Super. LEXIS 611 (CT Superior Ct., March 15, 2010), a Connecticut trial court held that plaintiff lacked standing to intervene to object to the issuance of a certificate of environmental compatibility for the construction of a cellular tower in Canaan, Connecticut. One of plaintiff's claims was that she has become interested in the Native American spirit world, including reverence for certain birds, and that the tower will make it less likely that hawks, eagles and woodpeckers will fly over her property. Relying on the 1988 U.S. Supreme Court decision in Lyng v. Northwest Indian Cemetery Protective Assoc., the court held that: "Free exercise of religion does not allow the claimant to dictate to the government whether it may give permission for use of property."

UPDATE: The trial court opinion was affirmed by Jaeger v. Connecticut Siting Council, 2011 Conn. App. LEXIS 215 (App. Ct. CT, April 26, 2011).

Article Profiles Lawyer Chosen By Vatican To Defend U.S. Abuse Suits Against It

The Associated Press yesterday reported on its exclusive interview with California lawyer Jeffrey Lena who is being increasingly called upon by the Vatican to be its spokesman and strategist to defend clergy abuse suits filed against the Holy See in U.S. courts. Lena, who is a solo practitioner, has an interest in sovereign immunity law and speaks Italian. He previously successfully obtained dismissal of a suit brought against against the Vatican Bank by Holocaust survivors who claimed the bank profited from assets looted by the Nazis and from Nazi slave labor. (See prior posting.) The article reports: "The Vatican's selection of the unknown and untested Lena ruffled some feathers among the small coterie of U.S. attorneys - most of them Catholics at big law firms - who were representing dioceses in sex abuse lawsuits."

Recent Prisoner Free Exercise Cases

In Hassan v. Maricopa County Sheriff's Office, 2010 U.S. Dist. LEXIS 35176 (D AZ, March 9, 2010), an Arizona federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when, in response to demonstrations, officials barred the Muslim chaplain from coming to the jail to lead services.

In Sandeford v. Plummer, 2010 U.S. Dist. LEXIS 35044 (ND CA, March 31, 2010), a California federal magistrate judge granted defendants summary judgment in a suit in which a Muslim prisoner alleged denial of an Islamic diet, interference with the observance of Ramadan, failure to provide an imam, and denial of a kufi cap.

In Copeland v. Livingston, 2010 U.S. Dist. LEXIS 24216 (ED TX, March 12, 2010), a Texas federal district court granted an inmate's motion to reopen a lawsuit alleging that he was forced to worship in a chapel containing Christian icons. In so ruling, the court adopted amended recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 24107, Feb. 10, 2010).

In Wesley v. Muhammad, 2010 U.S. Dist. LEXIS 37154 (SD NY, April 13, 2010), a New York federal magistrate judge refused, because of undue delay, to permit a Muslim prisoner to amend his complaint in a suit against city and prison officials complaining that he has not been supplied correctly prepared Halal meals.

In Cable v. Wall, 2010 U.S. Dist. LEXIS 37143 (D RI, April 13, 2010), a Rhode Island federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 37176, March 18, 2010) and dismissed some claims but permitted plaintiff to move ahead with claims that he was denied certain Islamic books because his religion was considered a gang.

Suit Challenges Exclusion of Sectarian Groups From State Employee Charitable Campaign

Earlier this week, the Montana Family Foundation filed suit in federal district court challenging its exclusion from the Montana State Employees' Charitable Giving Campaign. The complaint (full text) in Montana Family Foundation v. Stoll, (D MT, filed 4/15/2010), alleges that MFF's application to become one of the numerous non-profit groups eligible to receive charitable contributions from state employees was rejected because eligible organizations may not have sectarian activities as their primary focus. MFF focuses on issues of the family, such as marriage and abortion, from a traditional Christian viewpoint. The complaint alleges that this anti-sectarian rule is vague and overbroad, discriminates against religious speech based on content, discriminates based on the speaker's viewpoint, and infringes rights of expressive association. It also alleges that the Campaign's practices violate the free exercise and establishment clauses, and infringe due process and equal protection rights. Alliance Defense Fund issued a release yesterday announcing the filing of the lawsuit.

Religion Clause Blog Is 5 Years Old Today

Today is Religion Clause's 5th birthday. Thank you to all the readers who have been on board for many years and to the many new readers who have joined us recently as well. All of you have contributed to the success of Religion Clause. As I look back at postings five years ago, it calls to mind the French proverb: Plus ca change, plus c'est la meme chose. There has been surprising stability in the major church state and free exercise issues that have captured the attention of courts, legislatures and the media over this period of time. I remain committed to continuing neutral coverage of both recurring and newly emerging developments, and to continuing to make extensive primary source material available for additional reference. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause. Finally, if you are the subject of a post, or are personally involved in the situation covered, I invite your e-mail giving any additional context that would be helpful. Please note Religion Clause's new e-mail address: religionclause@gmail.com.

Kyrgyzstan's New Government Seeks To Liberalize 2009 Religion Law

The Washington Post reported today that with the overthrow of Kyrgyzstan's president Kurmanbek Bakiyev, interim leader Roza Otunbayeva says her new government is working on a new constitution that will set up a parliamentary democracy. Religious groups in the country are wondering if this will mean a backing off from the restrictive Religion Law passed last year by the Bakiyev government. (See prior posting.) According to a report today from Forum 18, Kanybek Imanaliyev, head of the interim government's Press Service, said: "We want to establish freedom of speech and freedom of religion. We will reform the Constitution, the laws as necessary and the Religion Law." However Imanaliyev said he is unsure whether religious groups will be able to carry on normal activity in the period before the changes are made.

Father's Religious Freedom Trumped By State's Interest In Protection of His Children

In Thorne v. Arkansas Department of Human Services, (AR Ct. App., April 14, 2010), an Arkansas appellate court upheld the November 2008 removal of three children from the Tony Alamo Ministry compound in Fouke, Arkansas. The trial court had conditioned the return of the children to their father on his obtaining both housing and employment separate and apart from the Tony Alamo Ministries. The father argued that this condition violates his religious freedom by forcing him to choose between his religion and his children. The court disagreed, saying that the state's interest in preventing potential harm to the children outweighs their father's "conscientious choice to live on ministry property, work for the ministry, and depend on the ministry for his family’s every need." (See prior related posting.)

Foster Care Agency Charged With Religious Discrimination

A Muslim woman, with the help of the ACLU of Maryland, has filed a complaint with the Baltimore City Community Relations Commission charging that a state-licensed agency refused her application to house foster children because she will not serve pork products in her home. According to an ACLU press release, Contemporary Family Services, an organization that places foster children, denied Tashima Crudup's application for a foster care license on the ground that exclusion of pork products from her home could create a discrepancy between her expectations and the needs and personal views of a foster child. Cudrup had finished a mandatory 50 hours of training for foster parents. She and her husband agreed that they would accept children of other religious faiths, would not impose their own religious faith on them and would make arrangements for the child to attend the church of his or her choice. ACLU says that the foster care agency has discriminated against Cudrup because of her religious beliefs, in violation of a Baltimore City Code, Chap. 4, Sec. 3-4.

Rights Group Charges Exploitation of Beggar Children By Senegal's Quranic Teachers

Human Rights Watch yesterday issued a 114-page report titled Off the Backs of the Children: Forced Begging and Other Abuses against Talibés in Senegal. [Links to full text and summary.] It charges that in the African nation of Senegal, over 50,000 boys, many under the age of 12, are forced to beg on the streets every day by brutal religious teachers, known as marabouts. According to an HRW press release:

In Senegal's predominantly Muslim society, where religious leaders wield immense social and political power, children have long been entrusted to marabouts who educate them in these residential Quranic schools, called daaras. Many marabouts, who serve as de facto guardians, conscientiously carry out the important tradition of providing young boys with a religious and moral education.

But research by Human Rights Watch shows that in many urban residential daaras today, other marabouts are using education as a cover for economic exploitation of the children in their charge. Many marabouts in urban daaras demand a daily quota from the children's begging and inflict severe physical and psychological abuse on those who fail to meet it.

A New York Times article also focuses on the HRW report.

NASA Employee Sues For Religious Discrimination After Demotion For Pushing Intelligent Design

According to a release issued yesterday by the Discovery Institute, an employee at NASA's Jet Propulsion Laboratory (JPL) has filed suit in a California state court claiming religious discrimination, harassment and retaliation; wrongful demotion; and infringement of free speech rights. In the lawsuit, information technology specialist David Coppedge alleges that he was demoted for "pushing religion" after he loaned co-workers DVDs that support the theory of intelligent design. The suit was brought against JPL and California Institute of Technology which manages the NASA Laboratory. The Discovery Institute, which takes the position that Intelligent Design is not religion, argues that it is nevertheless illegal for an employer to discriminate against an employee based on what the employer believes to be a religion.

Presidential Memo Expands Non-Family Members' Visitation and Surrogate Health Care Rights

The President yesterday issued a Memorandum (full text) to the Secretary of Health and Human Services aimed at assuring that hospital patients have the right to designate visitors and surrogate decision-makers other than immediate relatives. While the action is aimed primarily at problems faced by gays and lesbians, the President framed the issue in broader terms:

Often, a widow or widower with no children is denied the support and comfort of a good friend. Members of religious orders are sometimes unable to choose someone other than an immediate family member to visit them and make medical decisions on their behalf. Also uniquely affected are gay and lesbian Americans who are often barred from the bedsides of the partners with whom they may have spent decades of their lives -- unable to be there for the person they love, and unable to act as a legal surrogate if their partner is incapacitated.

The Memorandum calls both for new rule making and for enforcement of current protections. New rules must also bar hospitals participating in Medicare and Medicaid from denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity, or disability. The Memorandum gives HHS six months to develop further recommendations on health care issues that affect LGBT patients and their families. The Washington Post reported on the President's action.

Court Says Muslim Did Not Prove Employment Discrimination, But Can Proceed on Other Claims

In Awad v. National City Bank, (ND OH, April 15, 2010), an Ohio federal district court dismissed claims of religious, racial and national origin discrimination brought by Muslim, Arabic, Palestinian bank employee who was eventually fired. The court concluded that the bank had non-discriminatory reasons for the actions it took. However the court allowed plaintiff to pursue his claims of retaliatory discharge, and his claims of a hostile work environment caused by comments from fellow employees critical of Palestinians and Arabs. A press release yesterday from CAIR discusses the court's decision.

National Day of Prayer Declared Unconstitutional

In an important decision yesterday, a Wisconsin federal district court held that the federal statute which designates the first Thursday in May as a National Day of Prayer violates the Establishment Clause. In Freedom From Religion Foundation, Inc. v. Obama, (WD WI, April 15, 2010), the court, in a 66-page opinion, concluded that 36 USC Sec. 119 goes beyond mere acknowledgement of religion. It endorses and encourages citizens to engage in prayer. Examining the legislative history of the law, the court said:

This legislative history supports the view that the purpose of the National Day of Prayer was to encourage all citizens to engage in prayer, and in particular the Judeo-Christian view of prayer. One might argue that members of Congress voiced secular purposes: to protect against "the corrosive forces of communism" and promote peace. That is true, but the references to these purposes do nothing to diminish the message of endorsement. If anything, they contribute to a sense of disparagement by associating communism with people who do not pray. A fair inference that may be drawn from these statements is that "Americans" pray; if you do not believe in the power of prayer, you are not a true American. Identifying good citizenship with a particular religious belief is precisely the type of message prohibited by the establishment clause.

Conceding that much of the controversy had resulted from activities of the private National Day of Prayer Task Force, the court said that "government officials, including former Presidents, have sometimes aligned themselves so closely with those exclusionary groups that it becomes difficult to tell the difference between the government's message and that of the private group."

The court concluded with this explanation of its holding:

Although the law does not always point in the same direction on matters related to the establishment clause, my review of that law requires a conclusion that 36 U.S.C. §119 is unconstitutional.

I understand that many may disagree with that conclusion and some may even view it as a criticism of prayer or those who pray. That is unfortunate. A determination that the government may not endorse a religious message is not a determination that the message itself is harmful, unimportant or undeserving of dissemination. Rather, it is part of the effort to "carry out the Founders' plan of preserving religious liberty to the fullest extent possible in a pluralistic society." .... The same law that prohibits the government from declaring a National Day of Prayer also prohibits it from declaring a National Day of Blasphemy.

It is important to clarify what this decision does not prohibit. Of course, "[n]o law prevents a [citizen] who is so inclined from praying" at any time.... And religious groups remain free to "organize a privately sponsored [prayer event] if they desire the company of likeminded" citizens.... The President too remains free to discuss his own views on prayer.... The only issue decided in this case is that the federal government may not endorse prayer in a statute as it has in §119.

AP reporting on the decision quotes a White House spokesman as saying that the President still plans to issue a proclamation to recognize a National Day of Prayer next month. The court in its decision stayed its injunction for the 30-day period during which an appeal may be filed, and for the peridod during which any appeal is pending. (See prior related posting.) [Thanks to Paul Ballard and Ira "Chip" Lupu for the leads.]

House Subcommittee Holds Hearing on Anti-Semitism

Yesterday the Subcommittee on International Organizations, Human Rights and Oversight of the House Committee on Foreign Affairs held a hearing on Combating Anti-Semitism: Protecting Human Rights. (Witness list.) Here are links to the prepared statements presented at the hearing by Subcommittee Chair Russ Carnahan; Special Envoy to Monitor and Combat Antisemitism Hannah Rosenthal; ADL Deputy National Director Kenneth Jacobson; AJ Committee Director of International Jewish Affairs, Rabbi Andrew Baker; Human Rights First CEO Elisa Massimino; and Simon Wiesenthal Center Associate Dean, Rabbi Abraham Cooper.