French Court Orders Facebook To Remove Page That Is Insulting To Bishop

Last week, BNA's Electronic Commerce & Law Reporter [subscription required] reported on a decision by a French court ordering Facebook to take down a page that the court found violated the privacy of a French bishop. It was also ordered to ensure that the page was not reposted. Facebook apparently failed to appear in the case, and had no attorney present at the hearing. In Hervé G. v. Facebook France, (TGI Paris, April 13, 2010) [full text in French from BNA, subscription required], the Paris First Instance Court also ordered Facebook France to identify the authors of the page and pay 2000 Euros in damages to Catholic Bishop Herve Giraud of Soissons. The offending page, titled "Courir nu dans une église en poursuivant l'évêque" (Running naked in a church after the bishop), was said by the court to incite hate and violence against Catholics. It included references to pedophilia. Facebook France says that the page is the responsibility of the U.S.-based Facebook.com.

Cert. Denied In Boy Scouts Case

The U.S. Supreme Court today denied certiorari in Boy Scouts of America v. Barnes-Wallace, (Docket No. 08-1222, May 3, 2010). (Order List). The long -running case challenged the constitutionality of San Diego's leasing of city property at nominal rents to the Boy Scouts. (See prior posting.) The challenge turned on the scout's exclusion of atheists, agnostics, and homosexuals as members or volunteers and its requirement that members affirm a belief in God. Challengers claimed the Scouts are a religious organization. (See prior posting.) Presumably the Court's long delay in deciding whether to grant review of the 9th Circuit decision stemmed from the fact that the decision in Salazar v. Buono, a case also involving an Establishment Clause challenge to governmental leasing of property to a private organization, might have resolved the issue here. (See prior posting.) However ultimately the recent fragmented disposition in Salazar (see prior posting) gave little guidance on the question posed by the lease to the Boy Scouts. AP reports on the denial of cert.

Mennonite Service Agency Added To List of Conscientious Objector Alternatives

Last month, the Selective Service System added one additional alternative for conscientious objectors if the draft should ever be reinstated. According to the Army's website, on April 20 the Selective Service System signed the first new Alternative Service Employer Network agreement in 25 years. It added Mennonite Voluntary Service, an agency of the Mennonite Church USA, to the list of civilian alternative service choices for CO's. [Thanks to God and Country blog for the lead.]

Defrocked Orthodox Priest Did Not Show Malice In Allegedly False Statements

In Kondratick v Orthodox Church in America, (Nassau Co. Sup. Ct., April 14, 2010), a New York trial court refused to grant summary judgment to a former high-ranking priest in the Orthodox Church in America who, after an investigation by the Church's Spiritual Court, was removed from the priesthood because of his alleged role in a church financial scandal. Plaintiff alleged a Church spokesman Rev. Andrew Jarmus defamed him when Jarmus was apparently misquoted by the press as saying that plaintiff was "solely responsible" for the financial scandal involving millions of dollars. Plaintiff claims that Jarmus was guilty of malicious conduct because he never issued a clarification or retraction of statements attributed to him. The court held that plaintiff had not made an adequate prima facie case of entitlement to summary judgment.

British Street Preacher Charged Under Public Order Act For Anti-Gay Statement

The London Telegraph reported yesterday on the arrest of a Baptist street preacher by British police in Workington, Cumbria for violating Britain's Public Order Act. According to Preacher Dale McAlpine, after he told a passing shopper that homosexuality violated the word of God he was approached by a police community support officer who introduced himself as the LGBT liaison officer for the Cumbria police. McAlpine told him: "It's still a sin." McAlpine then began a 20 minute sermon condemning drunkenness and adultery, during which three regular police officers arrested him. He was later charged under Sections 5(1) and 6 of the Public Order Act that outlaw use of language which the person intends, or is aware may be, abusive or insulting. [Thanks to Joel Sogol via Religionlaw for the lead.]

Recent Articles and Film of Interest

From SSRN:

• Daphne Barak-Erez, Law and Religion Under the Status Quo Model: Between Past Compromises and Constant Change, (Cardozo Law Review, Vol. 30, No. 6, pp. 2495-2507, 2009).
• R. Randall Kelso, Modern Moral Reasoning and Emerging Trends in Constitutional and Other Rights Decisionmaking Around the World, (April 1, 2010).

From SmartCILP:

• M. Mohsin Alam, Constructing Secularism: Separating 'Religion' and 'State' Under the Indian Constitution, [Abstract], 11 Australian Journal of Asian Law 29-55 (2009).
• Mark A. Levine, The Modern Crusade: An Investigation of the International Conflict Between Church and State, 40 California Western International Law Journal 33-54 (2009).

Recent Films:

• Reed Cowin, 8: The Mormon Proposition, reviewed in the Washington Post.

Court Enjoins Planned Student Prayer At High School Graduation

On Friday, an Indiana federal district court issued a preliminary injunction prohibiting the planned student-led prayer at suburban Indianapolis' Greenwood High School's upcoming graduation. The school conducts a student ballot at an assembly in which students vote on whether to have a fellow student deliver a non-denominational prayer at graduation. This year's valedictorian sued challenging the practice. (See prior posting.) In Workman v. Greenwood Community School Corp., (SD IN, April 30, 2010), the court said in part:

Under the circumstances of this case, were a prayer to be permitted at the upcoming Greenwood graduation ceremony, it likely would be perceived "as a public expression of the views of the majority of the student body delivered with the approval of the school administration."... The offering of prayer at a high school graduation does not, by itself, violate the Establishment Clause. If, however, "the 'degree of school involvement makes it clear that the [graduation] prayers bear ‘the imprint of the state,' then a constitutional violation has occurred." ... The policy in place at Greenwood purposefully encourages the delivery of a majority-sanctioned prayer at a "regularly scheduled, school-sponsored function conducted on school property." ... That policy therefore violates the Constitution as an establishment of religion.

Reporting on the decision, yesterday's Indianapolis Star quotes school officials who say they will not appeal the decision and will not hold votes or attempt to hold graduation prayers in future years.

Kenyan Churches Will Oppose New Draft Constitution

In Kenya, churches have decided to spearhead a campaign against approval of the country's new draft constitution which will be the subject of a referendum in the near future. Jurist reports that the draft (full text) was approved by Kenya's Parliament on April 1. Two issues have been at the center of the debate. One is the provision for Muslim Kadhis Courts (Secs. 169-170). The second is the provision on abortions (Sec. 26) which provides: "Abortion is not permitted unless, in the opinion of a trained health professional, there is need for emergency treatment, or the life or health of the mother is in danger, or if permitted by any other written law."

The Standard reported last week that the Episcopal Council of the Catholic Church of Kenya, the National Council of Churches of Kenya and the Anglican Church of Kenya have all decided to oppose adoption of the Constitution, despite the popularity of the draft in the country. Angencia Angola Press reports that some Kenyan churches (but apparently not the Anglican Church (Sunday Nation))will use tithes and Sunday offerings to fund the "vote no" campaign. However some Anglican bishops support the constitution. Today's Sunday Nation editorially criticizes the U.S.-based American Center for Law and Justice, a conservative Christian group, which reportedly will fund a campaign to defeat the constitution.

Recent Prisoner Free Exercise Cases

In Smith v. Goord, (2d Cir., April 27, 2010), the 2nd Circuit remanded with instructions that plaintiff should be granted leave to amend his complaint that prison staff members violated his free exercise rights when they failed to provide him with an alternative method of tuberculosis testing consistent with his religious beliefs instead of placing him in confinement.

In United States v. Lafley, 2010 U.S. Dist. LEXIS 41445 (D MT, April 28, 2010), a Montana federal district court refused to modify defendant's conditions of supervised release to permit him to possess marijuana for religious or medical purposes.

In Hartmann v. California Department of Corrections & Rehabilitation, 2010 U.S. Dist. LEXIS 41522 (ED CA, April 27, 2010), Wiccan prisoners challenged a California regulations that provided full time prison chaplains for five specified faiths, but only part-time or volunteer chaplains for others. A California federal magistrate judge

In Jotunbane v. Sedillo, 2010 U.S. Dist. LEXIS 41360 (D NM, April 20, 2010), a New Mexico federal district court held that RLUIPA does not authorize prisoner claims of any sort against state officials in their personal capacities nor does it authorize claims for monetary damages (as opposed to other kinds of relief) against individuals in their official capacities.

In Robinson v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 42154 (ED NY, March 24, 2010), a New York federal magistrate judge recommended that a Jewish prisoner be permitted to proceed with his claim that his free exercise rights were infringed when a corrections officer burst into prison Jewish High Holy Day services, told participants they were over, had members of the congregation handcuffed, and took plaintiff who was leading the services into the elevator and physically assaulted him. An excessive force claim was dismissed because of improper defendants being named.

In Flett v. Vail, 2010 U.S. Dist. LEXIS 40725 (ED WA, April 26, 2010), a Washington federal court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 40749, Feb. 24, 2010) allowing a Native American inmate to move ahead with his RLUIPA complaint challenging a regulation that denied him access to an eagle bone whistle used in certain religious ceremonies.

In Gjevukaj v. Lowe, 2010 U.S. Dist. LEXIS 40781 (MD PA, April 26, 2010), a Pennsylvania federal district court dismissed plaintiff's claim that he was denied Halal-compliant meals. It upheld the policy of removing inmates from the Common Fare diet when they consumed commissary items that did not comply with their religious requirements.

In Lagervall v. Garringer, 2010 U.S. Dist. LEXIS 40730 (ED WA, April 26, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 40733, April 9, 2010) and dismissed a Muslim inmate's RLUIPA claim that his rights were infringed when a kufi mailed to him from a supplier was rejected because he had not paid for it from his personal funds.

In Hoeft v. Allen, 2010 U.S. Dist. LEXIS 40054 (WD WI, April 23, 2010), a Wisconsin federal district court rejected free exercise and RLUIPA claims by a former inmate whose drawing of a swastika was confiscated from his cell.

Army Hospital Emblem Challenged Because of Religious Content

AP reported Thursday that the Military Religious Freedom Foundation has protested to the Army over the religious symbol and motto on the emblem of Evans Army Community Hospital at Fort Carson, Colorado. The central feature of the emblem is a cross with a pointed base, said to be an emblem of mercy and a symbol from the Middle Ages when pilgrims carried this type of cross to mark a campsite. The emblem also carries the Latin motto "Pro deo et humanitate," which means "For God and humanity." MMRF head Mikey Weinstein says: "This continues to add more fodder to the argument that we are Crusaders. It's exactly what fundamentalist Muslims want." The Army will review the MMRF complaint.

Meanwhile, God and Country blog carries an extensive response to the MMRF complaint, picturing numerous other Army emblems that carry imagery from a wide variety of religious traditions.

President Issues 2010 National Day of Prayer Proclamation

Despite the questions of legality raised by a recent federal district court opinion (see prior posting), yesterday President Obama issued a Proclamation, (full text) designating May 6 as this year's National Day of Prayer. The Proclamation reads in part:

Prayer has been a sustaining way for many Americans of diverse faiths to express their most cherished beliefs, and thus we have long deemed it fitting and proper to publicly recognize the importance of prayer on this day across the Nation....

I call upon the citizens of our Nation to pray, or otherwise give thanks, in accordance with their own faiths and consciences, for our many freedoms and blessings, and I invite all people of faith to join me in asking for God's continued guidance, grace, and protection as we meet the challenges before us.

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.)