Presidential Proclamation Sets May As Jewish American Heritage Month

Yesterday President Obama issued a Proclamation (full text) declaring May 2010 as Jewish American Heritage Month. It reads in part:

The Jewish American story is an essential chapter of the American narrative. It is one of refuge from persecution; of commitment to service, faith, democracy, and peace; and of tireless work to achieve success. As leaders in every facet of American life -- from athletics, entertainment, and the arts to academia, business, government, and our Armed Forces -- Jewish Americans have shaped our Nation and helped steer the course of our history. We are a stronger and more hopeful country because so many Jews from around the world have made America their home.

Today, Jewish Americans carry on their culture's tradition of "tikkun olam" -- or "to repair the world" -- through good deeds and service. As they honor and maintain their ancient heritage, they set a positive example for all Americans and continue to strengthen our Nation.

Court Permits Wife To Move Husband From Jewish Cemetery

In Matter of Eirand-Herskowitz v. Mt. Carmel Cemetery Association, (Queens Co. NY Sup Ct., April 23, 2010), a New York trial court granted a petition filed by a wife to disinter her deceased husband who was buried in a Jewish cemetery to permit her to bury him elsewhere so she could be buried beside him. Jamie Herskowitz, who was Jewish, died after nearly 20 years of marriage to Debra Eirand-Herskowitz, who was not Jewish. Non-Jews are not permitted to be buried in a Jewish cemetery. The original burial in 2007 was arranged by Jamie's mother and sister when Debra was too overwrought to make the plans. The court said:

Both respondents, mother and sister, testified to the fact that the decedent followed many Jewish traditions, and that his Jewish faith was an important part of his daily life. Although it is not the function of this court to sit in judgment of anyone's choice in the manner in which he/she chooses to practice or observe his/her faith, the court finds that these occasional, isolated acts of religious observance do not unequivocally constitute and support the fact that Jamie actively practiced his Jewish faith. Moreover, the court finds that whatever the nature of decedent's bond of religion, it was insufficient to overcome his paramount wish that his wife and he be together in death as they were in life.... Additionally, as the proposed final resting place for his remains, St. Elizabeth Cemetery is nondenominational, there is no evidence to show that his burial there will offend his Jewish faith.... There was no evidence presented by respondents to show decedent's paramount concern was that his remains be laid to rest in a Jewish cemetery.

[Thanks to Joseph Landau for the lead.]

Nurse Files State Claims After Being Required To Assist In Abortion

As previously reported, last July a nurse at New York's Mt. Sinai Hospital filed a federal lawsuit claiming her conscience rights, protected by federal law, were violated when she was required to assist in an abortion performed on a woman who was 22-weeks pregnant. On Friday, the nurse filed a second lawsuit in New York state court based on state law. The complaint (full text) in Cenzon-Decarlo v. Mt. Sinai Hospital, (NY Kings Co. Sup. Ct., filed 4/30/2010), alleges religious discrimination and infringement of free exercise rights in violation of the New York state constitution. It also alleges discriminatory employment practices and a hostile work environment in violation of New York statutes, as well as intentional infliction of emotional distress. Alliance Defense Fund issued a release announcing the filing of the lawsuit.

Delaware Court Dismisses Abuse Suits Against Out-of-State Dioceses and Parish On Due Process Grounds

A Delaware Superior Court this week decided four cases involving jurisdiction over lawsuits claiming sexual abuse of minors by Catholic clergy. In Tell v. Roman Catholic Bishops of Diocese of Allentown, (DE Super. Ct., April 26, 2010), in an opinion also covering a second case consolidated with it for decision, the court held that it lacked personal jurisdiction over Pennsylvania and Maryland Catholic dioceses and a Catholic parish in Maryland. Asserting personal jurisdiction on the facts of these cases would violate the due process rights of the defendants.

The cases allege sexual abuse occurring in Delaware by priests employed by the out-of-state entities. The court refused, on First Amendment grounds, to examine canon law to determine which Church superiors were responsible for the priests' behavior. The court held that since the priests were not acting within the scope of their employment when they committed the alleged abuse, any liability of the dioceses or parish is not based on the doctrine of respondeat superior. Therefore in determining whether there was a sufficient nexus to support personal jurisdiction, the court must examine actions in Delaware of the dioceses and parish, not actions of the priests themselves. Plaintiff failed to show sufficient activities in Delaware to establish general jurisdiction over the dioceses or parish. The court likewise rejected claims of specific jurisdiction since the alleged negligence in hiring or supervising the priests, or in failing to warn potential victims, all took place out of state. The court concluded its opinion with this unusual statement directed at the plaintiffs:

If the allegations of the complaints are true, you have suffered immeasurably at the hands of men who betrayed a sacred vow and a position of trust solely to satisfy their own selfish and perverted desires. The Court realizes that the foregoing analysis must seem to be a cold, sterile calculus devoid of any understanding of the injuries you have suffered, and it is fully cognizant that its decision in this matter will leave you without a remedy because your claims are barred by the statutes of limitations in your home states. Nonetheless, the Court is bound to apply our federal constitution and the laws of this state as it finds them. The legal questions presented by these motions are not even close ones.

In Naples v. Diocese of Trenton I, (DE Super. Ct., April 29, 2010), the court similarly dismissed for lack of personal jurisdiction a lawsuit brought under the Delaware Child Victim's Act against a New Jersey diocese and parish. Some of the alleged acts of sexual abuse had taken place in Delaware. However in Naples v. Diocese of Trenton II, the court refused to dismiss on forum non conveniens grounds a suit against the priest himself who allegedly abused plaintiff. Much of the abuse took place in New Jersey, but some acts took place in Delaware.

Muslim Woman Loses Suit Against Judge Who Banned Hijab In Courtroom

In Council on American-Islamic Relations v. Callahan, (ED MI, April 29, 2010), a Michigan federal district court dismissed a case in which a Muslim woman, Raneen Albaghdady, sued a state court judge who requested that she remove her hijab in his court room. The federal lawsuit sought an order declaring the practice an unconstitutional infringement of plaintiff's free exercise of religion and of her right of access to the courts. It also sought an injunction barring the judge from taking similar action in the future.

The court dismissed the claim for an injunction on the ground that judges have absolute immunity when acting in their judicial capacity. Here defendant was controlling the demeanor and dress of parties who were participating in matters before the court. It also dismissed the request for a declaratory judgment, finding plaintiff lacked standing. She failed to show an injury in fact. According to the court: "Albaghdady never protested removal of her head piece, she never informed Defendant that her 'hat' was a hijab, and most critically, when asked to remove it, said, 'Okay. It doesn't matter.' ... She removed her hijab without hesitation." The Detroit Free Press yesterday reported on the decision.

Lower House of Belgian Parliament Passes Burqa Ban

According to reports from RTT News and CNN, yesterday Belgium's Chamber of Deputies-- the lower house of the Belgian Parliament-- passed a bill that would ban Muslim women from wearing the burqa in public places. More precisely, the legislation bans clothing that would hide the identity of the wearer in any place that provides services to the public or is meant for public use. This includes public transportation, streets, parks and sports grounds, though authorities could grant exceptions for special events such as carnivals. Violators would face a fine of 15 to 25 Euros and up to a week in jail. The Chamber of Deputies vote was 136 in favor, none opposed, and two abstentions. The bill now goes to the Belgian Senate where final approval is expected. This would make Belgium the first country in Europe to ban the burqa, though France is moving ahead with similar legislation. (See prior posting.) A Muslim political leader in Belgium warns that passage of the law could have the opposite effect from that desired. It may encourage more women to wear the burqa.

Court Can Enjoin Expelled Member From Entering Church Property

In Church of Christ in Hollywood v. Cage-Barile, (CA App., April 27, 2010), a California appellate court upheld against constitutional attack an injunction issued barring an expelled Church member from entering Church property. Lady Cage-Barile was expelled for disrupting religious services and harassing the congregation. She now contends that the First Amendment and comparable state constitutional provisions preclude civil courts from adjudicating whether she has the right to enter church property. The court disagreed, saying:

[R]egardless of whether the Church is congregational or hierarchical, its decision to terminate Cage-Barile's membership is binding on us. That decision was based on religious doctrine and, as a matter of constitutional law, is not subject to review by civil courts. Nor is there any suggestion in the record that the Church failed to follow the proper procedures in making its decision. The Church held a noticed meeting, invited the congregation, allowed Cage-Barile to speak to the assembly, and, thereafter, the board and membership expelled her.... Under the First Amendment, the courts must accept the Church's decision. The question before us is whether, having expelled Cage-Barile, the Church can prevent her from entering its property. The answer is yes....

British Appeals Court Rejects Plea For Special Panel To Adjudicate Religious Rights Cases

Yesterday in Britain's Court of Appeal, Lord Justice Laws sharply rejected charges that the regular judges of the court do not understand Christianity or other relgious faiths. He reiterated an earlier decision of the court to refuse to allow an appeal of a controversial employment discrimination case. Last November, the Employment Appeal Tribunal upheld the right of a counseling service to require employees to serve all clients. Counselor Gary McFarlane was dismissed after he refused on the basis of his Christian religious beliefs to counsel same-sex couples. The EAT rejected McFarlane's religious discrimination claim. (See prior posting.) After the Court of Appeal in January rejected an application to appeal, McFarlane, backed by Lord Carey, the former Archbishop of Canterbury, petitioned for appointment of a special Court of Appeal panel of five judges who understand religious issues to hear McFarlane's appeal and future appeals involving religious rights. (See prior posting.) Rejecting that request, in McFarlane v. Relate Avon Ltd., (Ct. App., April 29, 2010), the court said:

The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves.... But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled.

... We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.

So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief's content in the name only of its religious credentials.

The London Daily Express , The Independent and the Daily Mail all report on the decision.

Head of Egypt's Al-Azhar Cuts Political Ties

On Wednesday, IPS reported that the new head of Al-Azhar, Egypt's premier center of Islamic learning, has resigned from President Hosni Mubarak's ruling National Democratic Party in order to avoid charges that the government is mixing religion and politics. On April 11, Mubarak accepted the resignation of Grand Sheik Ahmed al-Tayeb who had been a member of the group that draws up NDP party policy. The resignation was motivated by the fact that NDP often charges its chief opposition-- the Muslim Brotherhood-- with exactly that kind of mixing of religion and politics. (See prior related posting.)

USCIRF Releases 2010 Annual Report on International Religious Freedom

In a press release today, the U.S. Commission on International Religious Freedom announced the release of its 2010 Annual Report. The Report recommends to Congress, the White House and the State Department that 13 countries be listed as "countries of particular concern (CPCs)" -- countries where the most egregious violations of religious freedom are taking place. Those countries are Burma, China, North Korea, Eritrea, Iran, Iraq, Nigeria, Pakistan, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. It listed 12 other countries that it is placing on its watch list of nations that require close monitoring due to the extent that religious freedom is being infringed. Those are: Afghanistan, Belarus, Cuba, Egypt, India, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela.

USCIRF's 382-page report documents religious freedom issues in both CPC and watch list countries, as well as in three others that are being closely monitored: Bangladesh, Kazakhstan and Sri Lanka. Under the International Religious Freedom Act of 1998, USCIRF's report is to be considered by the State Department in preparing its Annual Report to Congress on International Religious Freedom. Also each year, the President is to revise the list of CPCs. The most recent list (see prior posting) is comprised of 8 of the 13 countries recommended this year by USCIRF: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia (with a waiver), Sudan, and Uzbekistan. An AP article discusses the USCIRF Report.

Court Says Juror's Discussion With Pastor On Capital Punishment Was Harmless Error

In Centennial, Colorado, a trial judge has ruled that a juror's discussions of the death penalty with his pastor during a recess in jury deliberations in a murder trial amounted to harmless error. Yesterday's Aurora (CO) Sentinel reports that, in violation of the judge's instructions, a juror in the trial of Robert Ray sought the advice of his pastor on his church's views on capital punishment. The pastor told him the church was opposed to it, but that he was free to make his own decision on the matter. One of Ray's lawyers argued that this "green-lighted" the juror's vote in favor of imposing the death penalty on Ray. The court, however, concluded that it had not been shown that the conversation affected the decision of the juror in question or his fellow jurors. Defendant Ray is already serving a 108-year sentence for his part in another murder.

5th Circuit Hears Oral Arguments In Challenge To Texas Pledge of Allegiance

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Croft v. Perry, (recording or oral arguments), an Establishment Clause challenge to the Texas Pledge of Allegiance recited in public schools in Texas. State law permits students to opt out of reciting the Pledge, which refers to Texas as "one state under God." The district court found a secular legislative purpose and concluded the pledge did not amount to an endorsement of religion. (See prior posting.) Texas Tribune reports on the case and has posted the full text of the Texas Attorney General's brief in the appeal.

Retired Chaplains Urge President To Retain Don't Ask, Don't Tell

Yesterday 41 retired military chaplains sent a letter (full text) to President Obama and Secretary of Defense Gates urging them to retain the military's current "don't ask, don't tell" policy on gays and lesbians in the armed forces, or at least to include robust religious liberty protections in any change. Copies of the letter were sent to additional military and legislative leaders as well. (CBS News reported on developments.)

The letter says: "if the government normalizes homosexual behavior in the armed forces, many (if not most) chaplains will confront a profoundly difficult moral choice: whether they are to obey God, or to obey men." The letter contends that chaplains will be pressured into watering down their religious teachings and may have their ability to share their religious beliefs challenged. It goes on to argue:

Marginalizing a large group of chaplains ... will unavoidably harm readiness by diminishing morale. Similarly, making orthodox Christians-- both chaplains and servicemen-- into second-class Soldiers, Sailors, Airmen or Marines whose sincerely-held religious beliefs are comparable to racism cannot help recruitment or retention.

According to Congress.org, to counter the letter, six gay rights activists delivered toy soldiers to their lawmakers yesterday to represent the 13,500 service personnel who have been discharged under "don't ask, don't tell." Also, the Interfaith Alliance released a statement (full text) criticizing the chaplains' letter, saying in part: "Repealing 'Don't Ask, Don't Tell' is a step forward in equality and justice for all citizens. When chaplains find the government's pursuit of these goals to be a threat to their values, we must ask whether something is askew with their values."

Iran Limits Rights of Sunnis To Conduct Prayers

According to a report yesterday from Asharq Al-Awsat, the government of predominately Shiite Iran has recently issued a ban on Sunnis praying at state universities and military camps. The order follows a ban in several cities of Sunnis holding Friday prayer services in their homes.

Virginia Governor Restores Police Chaplains' Right To Deliver Sectarian Prayers

In Virginia, a State Police policy adopted in 2008 requiring police chaplains to deliver non-sectarian prayers at official events has been reversed by Gov. Bob McDonnell's administration. Yesterday's Hampton Roads Virginian-Pilot reports on the change that had been pressed by the Family Foundation of Virginia. When the prior policy was adopted by the Gov. Tim Kaine administration, six of the department's seventeen volunteer chaplains resigned in protest. (See prior posting.) The policy restored yesterday allows chaplains to pray according to the dictates of their own conscience, in accordance with their faith traditions, while being respectful of other faiths. The ACLU of Virginia (press release) had urged McDonnell to ignore lobbying efforts of those who wanted sectarian prayer restored.

Supreme Court Hears Arguments On Release of Names of Petition Signers

The U.S. Supreme Court yesterday heard oral arguments in Doe v. Reed, (full transcript of arguments). At issue is whether the right to anonymous political speech was infringed when Washington state, under its Public Records Law, released the names of those who signed a petition seeking a referendum on the state's domestic partnership law. The 9th Circuit found no First Amendment problem with the release. (See prior posting.) The New York Times says that the First Amendment arguments were met with skepticism from justices across the ideological spectrum. Justice Scalia remarked: "running a democracy takes a certain amount of civic courage."

Court Lacks Jurisdiction Over Decision Not To Circulate Minister's Resume

In Thibodeau v. American Baptist Churches of Connecticut, (CT App., April 27, 2010), the Appellate Court of Connecticut held that the free exercise protections of the U.S. and Connecticut constitutions preclude it from exercising jurisdiction over complaints by a Baptist minister that the regional organization of American Baptist churches refused to circulate his resume to congregations because of concern about his fitness for the ministry. The court held that plaintiff's promissory estoppel, defamation, fraud and infliction of emotional distress claims all involve issues of the church's internal management and the right of a church to determine, without government interference, the qualifications of individuals to serve as a member of the clergy. (See prior related posting.)

Supreme Court Reverses Order Barring Display of Cross At World War I Memorial

The U.S. Supreme Court today, in a fragmented decision producing six separate opinions, decided a challenge to Congress' transfer of a religious symbol on federal land to a private party, the VFW. The case involved the long-running dispute over the Sunrise Rock Cross in the Mojave Preserve memorial to those killed in World War I. In Salazar v. Buono, (Sup. Ct., April 28, 2010), the Court reversed the 9th Circuit and remanded the case. The Court of Appeals had found Establishment Clause problems with Congress' transfer of the cross. (See prior posting.) The Supreme Court's decision was announced in an opinion written by Justice Kennedy, joined by Chief Justice Roberts and joined in part by Justice Alito.

Justice Kennedy concluded that the government's objections to plaintiff's standing could not be raised at this stage of the litigation because the government had not properly sought Supreme Court review of the issue when it was initially decided. He then focused on the complex procedural history of the case. The district court enjoined the government from permitting display of the Cross on Sunrise Rock before Congress passed the statute transferring the land to a private party. The Court of Appeals affirmed on the ground that a reasonable observer would see the cross as an endorsement of religion. Plaintiff's challenge to the land transfer was brought in the form of seeking to apply or extend the original injunction to it. The district court enjoined the transfer on the basis of an improper Congressional purpose. Justice Kennedy objected:

The District Court thus used an injunction granted for one reason as the basis for enjoining conduct that was alleged to be objectionable for a different reason.... [It] failed to consider whether, in light of the change in law and circumstances effected by the land-transfer statute, the "reasonable observer" standard continued to be the appropriate framework through which to consider the Establishment Clause concerns invoked to justify the requested relief. As a general matter, courts considering Establishment Clause challenges do not inquire into "reasonable observer" perceptions with respect to objects on private land....

.... [T]he District Court concentrated solely on the religious aspects of the cross, divorced from its background and context. But a Latin cross is not merely a reaffirmation of Christian beliefs. It is a symbol often used to honor and respect those whose heroic acts, noble contributions, and patient striving help secure an honored place in history for this Nation and its people. Here, one Latin cross in the desert evokes far more than religion. It evokes thousands of small crosses in foreign fields marking the graves of Americans who fell in battles, battles whose tragedies are compounded if the fallen are forgotten.

In a one-paragraph concurring opinion, Chief Justice Roberts said that the land transfer was no different that tearing down the cross, selling the land to the VFW, and having the VFW reconstruct the cross.

Justice Alito, writing separately, said he agreed with Justice Kennedy, except he did not see any need to remand the case for further proceedings. He would reverse the decision and instruct the district court to vacate its order prohibiting implementation of the land-transfer statute. He said:

Congress chose an ... approach that was designed to eliminate any perception of religious sponsorship stemming from the location of the cross on federally owned land, while at the same time avoiding the disturbing symbolism associated with the destruction of the historic monument. The mechanism that Congress selected is one that is quite common in the West, a "land exchange."

Justice Scalia wrote an opinion joined by Justice Thomas, concurring in the judgment but arguing that plaintiff lacks Article III standing to pursue what Scalia characterized as new relief, not an appliation of the original injunction. Plaintiff failed to allege any actual or imminent injury from the land transfer, since the only injury plaintiff claimed was his concern with seeing the cross on federal land.

Justice Stevens, in an opininon joined by Justices Ginsburg and Sotomayor, dissented. Stevens argued that it was proper for the district court to find that the land transfer statute violated its original injunction. He concluded that the land transfer statute did not end government endorsement of the cross:

First, after the transfer it would continue to appear to any reasonable observer that the Government has endorsed the cross, notwithstanding that the name has changed on the title to a small patch of underlying land. This is particularly true because the Government has designated the cross as a national memorial, and that endorsement continues regardless of whether the cross sits on public or private land. Second, the transfer continues the existing government endorsement of the cross because the purpose of the transfer is to preserve its display.

Stevens goes on to assert that the plurality is attempting to reopen a settled issue-- whether the government can endorse the cross because of its dual symbolism. In concluding, he emphasized that because Congress has created no other memorial to the veterans of World War I, this sectarian symbol is the only monument to all the soldiers who died in that war.

Finally Justice Breyer wrote a separate dissent arguing that the Court should have dismissed the writ of certiorari as improvidently granted since the case turns on fairly clear principles of the law of injunctions and presents no federal questions of general significance. A district court has considerable leeway to interpret the meaning of its own injunctions, and should interpret the scope of an injunction in light of the injunction's purpose and history. The district court did that here. The Washington Post reports on the decision.

Creator Of "Draw Mohammed" Campaign Backs Off, As Others Continue It

Reacting to last week's online threats to the creators of South Park over their depiction of the Prophet Muhammad in a bear costume (see prior posting), Seattle artist Molly Norris created a poster promoting May 20 as "Everybody Draw Mohammed Day," sponsored by a fictional group, Citizens Against Citizens Against Humor. The poster also included sketches of items such as a coffee cup and a pasta box each claiming to be the real Mohammed. The poster spread virally on the Internet, creating a reaction for which Norris was unprepared. AOL News and the National Post yesterday both reported that Norris has now backed off, posting a statement reading in part: "I did not intend for my cartoon to go viral. I did not intend to be the focus of any ’group’. This particular cartoon has struck a gigantic nerve, something I was totally unprepared for." Also Jon Wellington who created a Facebook page publicizing Norris' efforts has backed out, surprised at the deeply offensive drawings that were posted to his site. However now a Toronto IT specialist calling herself "Mimi" says she will promote the May 20 event. Also, Michael Moynahan at Reason has invited submissions that he says he will post on May 20.

Dispute Continues Over Nepal As Secular State In Proposed Constitution

In Nepal, as law makers approach the May 28 deadline for completing a draft of a new constitution, tensions increase over whether the country will remain a secular state. In 2006, Parliament passed a resolution providing that the country would no longer formally be known as a Hindu nation. (See prior posting.) Last week, Christians rallied in Kathmandu demanding that the new constitution ensure their rights by keeping Nepal as a secular state. Cath News India reports that Christians are pressing for provisions in the constitution that protect their right to form Christian NGOs and church trusts easily. However yesterday's London Guardian reports that there are increasing pressures, fueled by Hindu nationalists in India, to once again declare Nepal a Hindu state. A popular Nepal holy man, Kali Baba, has threatened to burn himself alive if the country is not again declared Hindu. According to the Guardian, even the proposed new constitution does not completely protect free exercise because it continues a ban that is in the country's interim constitution that prohibits converting another person from one religion to another.