U.S. Sentencing Commission Incorporates New Hate Crimes Law Into Sentencing Guidelines

The U.S. Sentencing Commission announced on Monday that it has voted to send to Congress for promulgation several amendments to the Sentencing Guidelines. One portion of the amendments adds language to incorporate the new provisions of the recently enacted Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act. (See prior posting.) The Sentencing Commission's proposal broadens the Sentencing Guideline for offenses involving individual rights to include a new offense added by the hate crime law: willfully causing bodily injury to a person because of the person’s race, color, religion, national origin, gender, sexual orientation, gender identity, or disability. The amendment also expands the definition of a hate crime in the penalty enhancement section to now include victims who were targeted because of their gender identity. The proposed changes (full text) were published in the Federal Register last month. Today's National Law Journal reports on the amendments.

Florida Legislature Considering Proposals To Lower Church-State Wall In Schools

Yesterday's St. Petersburg (FL) Times reports on the continuing efforts in the Florida legislature to allow greater mixing of religion and publicly funded education. Yesterday the Senate Education Pre-K-12 Committee unanimously approved SB 1580 that would "permit the delivery of an inspirational message, including a prayer or an invocation, at a noncompulsory high school activity, including a student assembly, a sports event, or other school-related activity, if a majority of the participating students request the delivery of an inspirational message and select a student representative to deliver the message. Several House committees have approved a similar bill (HB 31). One version of the House Bill would bar school boards from settling litigation that infringes the First Amendment freedoms of school teachers and staff without the individuals' express written consent. This is apparently a reaction to the settlement of litigation by the Santa Rosa school district. (See prior posting.)

The Florida House and Senate are also considering a proposed state constitutional amendment to eliminate Florida's ban on state funds aiding any religious denomination. The amendment would also specifically allow inidividuals to use public benefits at religious service providers. (SJR2550/HJR1399). Significant opposition has developed to this proposal.

City Permanently Enjoined From Enforcing Noise Law Against Church Bells

After issuing a preliminary injunction last month prohibiting the city of Phoenix (AZ) from enforcing its noise ordinance against churches because of their carillon bells (see prior posting), on Monday an Arizona federal district court made the injunction permanent. In St. Mark Roman Catholic Parish Phoenix v. City of Phoenix, (D AZ, April 19, 2010), upon stipulation of the parties, the court enjoined enforcement o the noise law against any sound generated in the course of religious expression and entered a declaratory judgment finding that its enforcement against religious expression violates the 1st and 14th Amendments. Finally the court ordered the city to pay plaintiffs' attorneys, Alliance Defense Fund, fees of $25,000. CBN News yesterday reported on the decision.

Chinese Lawyers Who Defended Falun Gong Face Disbarment

Epoch Times reported yesterday that in China, two human rights lawyers who attempted to defend Falun Gong practitioners are about to have their licenses suspended. The Beijing Municipal Bureau of Justice will be holding a public hearing tomorrow on revocation of the law licenses of Tang Jitian and Liu Wei. They are charged with disturbing court order, interfering with normal legal proceedings, and damaging implementation of the law. Six months ago, the lawyers withdrew from a case when the judge in the city of Luzhow would not let them speak in defense of their client. Some of the charges against the two lawyers stem from their refusal to cooperate with a security check in the courtroom that they say was illegal.

Objections Raised To Pentagon's Speaker For National Day of Prayer

AP reported yesterday that the Military Religious Freedom Foundation is objecting to an invitation extended by the Pentagon to evangelist Franklin Graham to speak on May 6 for the National Day of Prayer. MRFF president, Mikey Weinstein, says that Graham has offended Muslims who work for the Department of Defense by describing Islam as "a very evil and wicked religion." Weinstein, while not objecting to the National Day of Prayer, does object to the close ties between the Pentagon and the National Day of Prayer Task Force, a private group that organizes Christian event for National Day of Prayer. Graham is this year's honorary chairman of the Task Force. Last week a federal judge held that the statute authorizing a National Day of Prayer is unconstitutional, but did not enjoin this year's activities while an appeal is pending. (See prior posting.)

Government Policy and Poverty Encourage Polygamy In Gaza

Palestine Note reported yesterday that societal pressures and government policies are encouraging polygamy in Gaza. Permitted by Islam, the difficult economic conditions in Gaza are encouraging poorer women to become second wives. Also the Hamas government is backing the Palestine Marriage Fund which encourages men to marry the widows of so-called "martyrs." The Fund gives $2800 plus gifts for the home to each couple. One hundred of these marriages have taken place already.

Islamist Website Threatens "South Park" Creators Over Muhammad Episode

CNN reports that the radical Islamic website Revolutionmuslim.com on Sunday posted an entry that can be seen as a physical threat to the creators of the television cartoon series South Park . The posting was triggered by an episode of the program that included a satirical discussion of whether the image of the Prophet Muhammad could be shown. In the end, he was portrayed in a bear costume. The website warned that program creators Trey Parker and Matt Stone "will probably wind up like Theo Van Gogh," the Dutch filmmaker who was murdered by an Islamic extremist. The website also runs audio of a sermon by radical U.S.-born Muslim preacher Anwar al-Awlaki which justifies assassinating anyone who defames the Prophet Muhammad.

UPDATE: Thursday's New York Times reports that an episode of South Park aired on Wednesday on Comedy Central continued a story line involving the Prophet Muhammad but included a number of audio bleeps and image blocks reading "CENSORED". Many of the audio bleeps were added by Comedy Central. Meanwhile Thursday's Musalman Times ran a long article titled South Park: A Muslim Perspective justifying strong Muslim opposition to the South Park episode.

Tennessee AG Opinion Says "Jesus Is Lord" Plates Violate Establishment Clause

Tennessee Attorney General Opinion 10-52 (April 15, 2010) concludes that the state's issuance of a specialty license plate carrying the motto "Jesus is Lord" would violate the Establishment Clause. The Opinion relied on a 2006 decision in a 6th Circuit case holding that Tennessee's messages on specialty license plates are government speech. The Attorney General's Opinion concluded that the proposed specialty plate would amount to an unconstitutional governmental endorsement of religion.

Brazil Is Latest Focus In Church Sex Abuse Scandal

AP today reports that the latest focus in the clergy sex abuse scandal is Latin America with charges against three Brazilian priests, including 83-year old Monsignor Luiz Marques Barbosa. Last month, a Brazilian television network broadcast a video of Barbosa in bed with a 19-year old former altar boy. The video was widely distributed on the Internet. Brazil's legislature launched an investigation in which witnesses charged that Barbosa and two other priests in the same archdiocese abused boys as young as 12. A judge requested Barbosa's immediate detention to prevent him fleeing the country. Prosecutors will now decide whether to file charges. Meanwhile the church has suspended all three priests and is conducting its own investigation.

Indonesia's Constitutional Court Upholds Blasphemy Law

Yesterday in an 8-1 decision, Indonesia's Constitutional Court upheld the country's blasphemy law. (Background.) The New York Times and Human Rights Watch both report on the decision. Section 156a of the Indonesian Criminal Code, which supplements a 1965 presidential decree, recognizes six religions, and imposes penalties of up to five years in prison for anyone who deliberately in public expresses hostility, hatred or contempt against one of these religions. The 1965 Presidential Decree prohibits deviant interpretations of any of these religions, and allows the Attorney General's office to dissolve deviant sects. The six recognized religions are Islam, Protestantism, Catholicism, Buddhism, Hinduism, and Confucianism. The law was challenged as violating Indonesia's Constitution which guaranties freedom of expression and religion, and human rights treaties. The suit was filed by a group of Indonesian NGOs and individuals, led by former president Abdurrahman Wahid. The Constitutional Court justified the law as a way of protecting against violence by intolerant members of the public.

White House Reaches Out To Muslim Americans

Yesterday's New York Times carried a length front-page story titled White House Quietly Courts Muslims in U.S. It reports that while the President himself has not visited an American mosque or met with U.S. Muslim or Arab-American leaders, others in his administration are meeting extensively with U.S. Muslims. Topics have included health care, the economy, foreign policy, immigration and national security. Muslims are particularly encouraged that the White House has appointed Muslims to government positions and have supported them against criticism. They point especially to the case of Rashad Hussain who was appointed U.S. Special Envoy to the Organization of the Islamic Conference.

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.