Vatican Files Motions To Dismiss U.S. Lawsuit Against It

Yesterday, the Vatican filed two motions to dismiss the clergy sexual abuse lawsuit that has been brought against it in federal court in Kentucky. The suit alleges that the Holy See is liable, under the doctrine of respondeat superior, for failure of clergy in the United States to warn parishioners that their children would be under the care of known pedophiles, and for the failure of U.S. bishops to report suspected abusers to civil authorities. (See prior posting.) One motion to dismiss focuses heavily on statute of limitations arguments. The Vatican's 56-page Memorandum (full text) supporting this motion sets out at length the Vatican's contention that the statute of limitations was not tolled. In addition to the statute of limitations, the Memorandum argues that the underlying claims fail because there are no allegations that supervisors had prior knowledge that the priests in question posed a danger to children. As to plaintiffs' international law claims , the Memorandum argues that neither the Universal Declaration of Human Rights nor the Convention on the Rights of the Child creates a private right of action. Finally the Vatican argues that clergy owed no fiduciary duty to plaintiffs.

The second motion to dismiss for lack of subject matter jurisdiction focuses on the argument that the Archbishop of Louisville was not an "employee" of the Vatican, so that the respondeat superior claim that is the basis for jurisdiction under the Foreign Sovereign Immunities Act collapses. The Vatican's 53-page Memorandum (full text) in support of this motion also deals with plaintiffs' focus on the Vatican's document Crimen sollicitationis, and argues that the document did not preclude the Bishop from reporting abuse to civil authorities. An AP article over the week end that quoted the Vatican's lead attorney in the U.S., Jeffrey Lena, previewed these arguments.

North Carolina City Council Switches From Moment of Silence To Invocation

In Greensboro, North Carolina, Mayor Bill Knight has decided to end the long City Council tradition of opening each meeting with a moment of silence, and instead replace it with an invocation. Knight says he will invite people from a broad spectrum of the faith community to offer opening prayers. Yesterday's Greensboro News-Record quotes Knight's explanation: "I think this adds a very distinctly America quality and a very necessary element. We all believe in something. This is an opportunity to exercise that without infringing on the government-religion prohibition."

10th Circuit Upholds Church's RLUIPA Victory, Avoids Deciding Constitutionality of RLUIPA

In Rocky Mountain Christian Church v. Board of Commissioners of Boulder County, Colorado, (10th Cir., May 17,2010), the U.S. 10th Circuit Court of Appeals held that sufficient evidence was presented at trial to justify the jury's determination that the denial of a special use application to Rocky Mountain Christian Church violated the equal terms and unreasonable limitations provisions of RLUIPA. It also upheld the permanent injunction that had been granted by the district court ordering the approval of the church's special use application. (See prior posting.) However the court avoided ruling on the issue seen by many as the more important question raised on appeal-- whether the substantial burden provisions of RLUIPA violate the Establishment Clause or exceed Congress' enforcement powers under Sec. 5 of the 14th Amendment. It was presumably that issue that had caused the Justice Department to intervene as a party in the case and over 25 organizations to join in a half dozen amicus briefs. AP reported on the decision.

Sri Lanka Charges Muslim Convert With Insulting Buddhism By Publishing Books

On Friday, the British-based Islamic Human Rights Commission reported on the upcoming trial in Sri Lanka of Sarah Malanie Perera, a Sri Lankan national who lives in Bahrain. While she was vacationing in Sri Lanka in March, she was detained by the Ministry of Defense under special emergency laws and charged with offending Buddhism. She was released on bail in April, but banned from traveling. Charges against her stem from two books she wrote describing her 1999 conversion from Buddhism to Islam. Authorities claim that writing the book in the Sinhalese language creates the insult. The trial was supposed to have begun on Saturday.

Christian Group Launches 8th Annual Campaign To Encourage Graduation Prayer

Last week, Liberty Counsel announced that it was launching its 8th annual "Friend or Foe" Graduation Prayer Campaign. Again this year it is distributing its 8-page Legal Memorandum on Graduation Prayers in Public Schools setting out its understanding of legal precedent that still permits prayers by speakers who truly initiate prayer on their own after being chosen to speak. Liberty Counsel says that, if necessary, it will litigate "to ensure that prayer and religious viewpoints are not suppressed during graduation ceremonies." The group also offers for sale "I Will Pray" wristbands described as "fashionable", as well as a booklet titled "Students' Rights on Public School Campuses."

Recent Articles and Books of Interest

From SSRN:

• Steven Lubet, Why the Dreyfus Affair Does and Doesn't Matter, (Green Bag, Vol. 13, No. 2, p. 331, 2010).
• Timothy Stewart-Winter & Simon Stern, Picturing Same-Sex Marriage in the Antebellum United States: The Union of 'Two Most Excellent Men' in Longstreet's 'A Sage Conversation', (Journal of the History of Sexuality, Vol. 19, No. 2, pp. 197-222, May 2010).
• Gail F. Mason, Hate Crime Laws in Australia: Are They Achieving Their Goals?, (Criminal Law Journal, Vol. 33, No. 6, pp. 326-340, 2009).
• Mark J. Cowan, Nonprofits and the Sales and Use Tax, (Florida Tax Review, Forthcoming).

Recent Books:

• Amy Scobee, Scientology: Abuse At the Top, (Scobee Publishing, May 2010).
• Melanie Phillips, The World Turned Upside Down: The Global Battle over God, Truth, and Power, (Encounter Books, April 2010).
• S.E. Cupp, Losing Our Religion: The Liberal Media's Attack on Christianity, (Threshold Editions, April 2010).
• Ian Johnson, A Mosque in Munich: Nazis, the CIA, and the Rise of the Muslim Brotherhood in the West, (Houghton Mifflin Harcourt, May 2010).

Holder Testifies About Religious-Based Hiring By Funded Faith-Based Groups

The Obama administration has so far not announced an official position on whether it would continue the Bush Administration policy that allowed social-service groups receiving federal faith-based funding to apply religious criteria in hiring. Last Thursday, Attorney General Eric Holder, in testimony before the House Judiciary Committee (after his prepared statement), answered questions from Rep. Robert Scott (D-VA) about the Administration's position on hiring by faith-based groups. A press release from Americans United interprets the somewhat opaque exchange as a commitment by Holder to non-discrimination. Here is the crucial part of the exchange:

Scott: Let’s be clear. Is the policy of this administration to allow discrimination? Is the policy of the administration going to be that discrimination will not be allowed?

Holder: We are -- yes, that is not the view that we share. We do not have a view that discrimination is, is appropriate. And we want to, as I said, interact with these organizations where these issues are presented in such a way that we are acting consistent with the law and acting, again, consistent with what our values are, both as a nation and as an administration.

(See prior related posting.)

Recent Prisoner Free Exercise Cases

In Colvin v. Caruso, (6th Cir., May 13, 2010), a Jewish inmate sued officials in a prior facility in which he had been housed for denying him kosher meals for 16 days, and thereafter on various occasions inadvertently serving him non-kosher food. He also challenged the lack of Jewish services and literature. The U.S. 6th Circuit Court of Appeals dismissed a number of his claims on grounds of mootness, qualified immunity and that isolated incidents did not violate his rights. However the court held that plaintiff should have been permitted to amend his complaint to challenge his removal from the kosher meal program for mere possession of non-kosher food. It also questioned officials' refusal to reinstate plaintiff to the kosher food program based on his knowledge of Judaism rather than the sincerity of his beliefs.

In Richardson v. Walker, 2010 U.S. Dist. LEXIS 44717 (SD IL, May 7, 2010), an Illinois federal district court allowed an inmate to move ahead with his claim that his free exercise rights were infringed when he was subjected to tuberculosis testing that violated his religious beliefs.

In Mansker v. McKinzy, 2010 U.S. Dist. LEXIS 44909 (ED CA, May 6, 2010), a California federal magistrate judge recommended dismissal of a Wiccan inmate's 1st Amendment and RLUIPA claims that he was prevented from attending religious services on several occasions. He did not allege that his religion required regular attendance at services, and thus did not adequately allege a substantial burden on his free exercise rights.

In El-Shaddai v. Clark, 2010 U.S. Dist. LEXIS 46304 (ED CA, April 12, 2010), a California magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint that his free exercise rights were violated when authorities refused to process his appeals requesting receipt of prayer oils he had ordered.

In Le'Taxione X v. Rochon, 2010 U.S. Dist. LEXIS 46165 (WD WA, May 11, 2010), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 46300, April 9, 2010), and dismissed free exercise claims by a Nation of Islam prisoner. Plaintiff had objected to officials insisting that the day room door remain open during Ramadan services. Accommodations made to provide NOI separate Al-Jumu'ah services and study groups mooted a second free exercise claim.

In Espinosa v. Addams, 2010 U.S. Dist. LEXIS 46177 (ED CA, April 8, 2010), a California federal magistrate judge dismissed an inmate's complaint that his free exercise and free speech rights were violated when the prison contraband rules were invoked to prevent his access to a Wiccan book his family had purchased that containted partial nudity.

In Young v. Kadien, 2010 U.S. Dist. LEXIS 46685 (WD NY, May 5, 2010), a New York federal district court allowed an inmate who practiced the religion of "Creator of Heaven and Earth and All Things Beautiful" to move ahead with his RLUIPA claim regarding his right to grow his hair and beard for religious reasons.

In Simpson v. Feltsen, 2010 U.S. Dist. LEXIS 46323 (ED CA, April 9, 2010), a California federal district court held plaintiff's charge that prison officials harassed him about his dreadlocks did not state a free exercise claim.

In Tapp v. Proto, 2010 U.S. Dist. LEXIS 47075 (ED PA, May 12, 2010), a Pennsylvania federal district court rejected a Black Jewish inmate's claims that his right to religious expression was violated when officials took time to investigate his religious needs in the first two weeks of his commitment, and when they thereafter failed to provide enough menu variety and consistent food preparation.

In Phillips v. Ayers, 2010 U.S. Dist. LEXIS 47281 (CD CA, May 12, 2010), a California federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 47263, Jan. 14, 2010) and refused to dismiss a claim that denying use of the prison chapel for Muslim worship without a sponsor violated RLUIPA.

Texas Board of Education Member Will Propose New Establishment Clause Focus In Social Studies

This week, the Texas State Board of Education resumes deliberations on revisions to the state's social studies curriculum. In March, the Board approved a number of changes that will require more conservative approaches to history and economics. (See prior posting.) Yesterday's Dallas Morning News reported that Don McLeroy, a leading social conservative on the board, has distributed several amendments that he wants added before this week's final vote on the standards. One of the proposals-- for the 8th grade history curriculum-- would call for students to: "contrast the Founders' intent relative to the wording of the First Amendment's Establishment Clause and Free Exercise Clause, with the popular term 'Separation of church and state.' " This reflects conservative contentions that the doctrine of separation of church and state was added by judges and was not part of the drafters' original intent. Earlier the Board rejected a proposal that, in contrast, would have had high schoolers study the reasons the Founders barred the government from promoting religion.

Arizona Governor Signs Bill Giving New Religious Land Use Protections

The Arizona Republic reports that Gov. Jan Brewer on Wednesday signed House Bill 2596 that gives added protections from land use regulations to religious institutions. It prohibits zoning regulations that impose an unreasonable burden on the exercise of religion, even if the government has a compelling interest, unless the proposed religious exercise violates religion-neutral zoning standards in effect when the zoning application was made; there are toxic hazards on adjacent property; or a suitable alternative location is available. It also bans discrimination or unequal treatment of religious institutions, even if the government has a compelling interest. Finally it bars total exclusion of a religious institution from a political jurisdiction or unreasonable limits on religious institutions, again regardless of any compelling interest. The statute also allows cities to exempt, on a case-by-case basis, churches or charter schools from existing statutory restrictions on their locating near businesses that sell liquor, if they are located in an entertainment district.

Patriarchate In Republic of Georgia Wants Legislation To Protect Against Religious Insult

Today's Georgian Times reports that the Patriarchate of the Orthodox Church in the Republic of Georgia has called on the government to enact legislation to protect the religious feelings of the population. The Patriarchate's statement stems from an incident last week at a televised debate over the book Saidumlo Siroba-- a collection of stories about incest, blasphemy and the like. As reported by the Georgian Times earlier this week, the debate led to scuffles between members of the right-wing Public Orthodox Movement and free speech proponents. The book's title is a pun on the Georgian term for The Last Supper.

6th Circuit Denies Motions To File Amicus Briefs In Ministerial Exception Rehearing Bid

In March, the 6th Circuit in EEOC v. Hosanna-Tabor Evangelical Lutheran Church and School held that parochial school teachers who teach primarily secular subjects are covered by the Americans With Disabilities Act. (See prior posting.) The court reasoned that they are not "ministerial employees" who are excepted from coverage. Only those who teach primarily religious subjects or who have a central spiritual or pastoral mission are covered by the ministerial exception. Last month, the parochial school filed a motion (full text) seeking an en banc rehearing, arguing that the 6th Circuit should not adopt the "primary duties" test to determine whether the ministerial exception applies, or, if it does, should not use a quantitative test in determining primary duties. A dozen religious organizations, representing a number of religious traditions, sought to file a total of four amicus briefs supporting the petition for an en banc rehearing. (Full text of briefs 1, 2, 3, 4 .). In an unusual move, the 6th Circuit, without explanation, refused to permit the amicus briefs to be filed. (Full text of order.) [Thanks to Luke Goodrich of the Beckett Fund for the lead and the documents.]

Split 6th Circuit Panel Denies Rehearing In 10 Commandments Case

In a 2-1 decision issued in January, the U.S. 6th Circuit Court of Appeals rejected an Establishment Clause challenge to a "Foundations of American Law and Government" display (including the 10 Commandments) that had bee placed in the Grayson County, Kentucky courthouse. The majority held that challengers failed to show a religious purpose in approving the display. (See prior posting.) Today in American Civil Liberties Union of Kentucky v. Grayson County, Kentucky, (6th Cir., May 14, 2010), the 6th Circuit by the same 2-1 vote denied a rehearing in the case. The ACLU claimed that a genuine issue of material fact should lead to vacating the summary judgment award. It focused on statements made by the county's Judge Executive at the time the county removed the Ten Commandments document from the display in order to comply with a preliminary injunction that had been issued by a federal district court. In written opinions denying the rehearing, the majority said that the alleged statements did not show a religious purpose. Judge Moore, dissenting, argued that in context the remarks could demonstrate a religious purpose. Liberty Counsel issued a press release on today's action by the court.

Canadian Court Hearing Arguments On Conscience Rights For Marriage Commissioners

Today's Vancouver Sun reports that for the first time in 20 years, the government of Canada's province of Saskatchewan has invoked the Constitutional Questions Act to obtain an opinion from the Court of Appeal on the constitutionality of proposed legislation. At issue are two alternative drafts of proposed legislation that would permit some or all of the province's 326 marriage commissioners to refuse to perform marriage ceremonies that are contrary to their religious beliefs. One draft would limit the exemption to individuals who were commissioners in 2004 when the province authorized same-sex marriages. The other draft would cover all commissioners.

Regina lawyer Mike Megaw was appointed by the government to argue in favor of the constitutionality of the law. Eighteen other individuals and groups were allowed to intervene in the case. Yesterday the court heard six hours of argument, and returns today to hear the remaining presentations. Some of the arguments yesterday focused on the breadth of the proposed law. It is not limited to same-sex marriage, and some claim that it could allow refusals on religious grounds to perform interracial marriages or marriages between people of different castes as well. (See prior related posting.)

Malaysian Woman Challenges Ban On Non-Muslim Lawyers Practicing In Syariah Court

In Malaysia, Victoria Jayaseele Martin, a non-Muslim woman who earned a Diploma in Syariah Law and Practice in 2004 from the International Islamic University Malaysia, is challenging the requirement imposed by the Federal Territory of Kuala Lumpur that only Muslims can be admitted to practice before its Syariah Court. Bernama reports today that a High Court judge has granted Martin leave to file a mandamus action to require the Federal Territory Religious Council to allow her to practice before the religious court. In allowing Martin to proceed, the High Court rejected arguments that only the Syariah Court had jurisdiction to hear her application. According to today's Malaysia Star, Martin contends that Rule 10 of the Peguam Syarie Rules 1993 that limits Syariah practice to Muslims is unconstitutional and not authorized by the Administration of Islamic Law (Federal Territories) Act 1993.

Vermont Catholic Diocese Settles All Past Clergy Abuse Lawsuits For Over $20M

The Roman Catholic Diocese of Burlington, the diocese that covers the state of Vermont, has settled the 26 pending clergy sex abuse cases that have been filed against the Diocese for a total of $17.65 million. Three other cases that have gone to trial and are currently on appeal to the Vermont Supreme Court were also settled for undisclosed amounts-- said by Barre Montpielier (VT) Times Argus to total at least $3 million. The settlements were announced in a letter (full text) yesterday posted on the Diocese website. To pay for the settlements, the Diocese will sell its 32-acre headquarters overlooking Lake Champlain, and will move to other offices. It will also sell 26-acre Camp Holy Cross located on Colchester's Malletts Bay. In the meantime it has obtained an interim loan using the properties as collateral and has depleted its unrestricted reserves to cover the costs.

Debate Over Permitting Stores To Open On Holidays Becomes Contentious

In Canada, Toronto's City Council voted to defer further discussion of a proposed amendment that would allow all retail stores to remain open 365 days per year. Yesterday's Toronto Globe & Mail reports that the proposal was put forward by Council's economic development committee in order to equalize the playing field for all retailers. Presently stores in some tourist areas have no restrictions, while stores elsewhere in the city must close on nine public holidays. However the debate became contentious when North York council member Giorgio Mammoliti-- a candidate for mayor in the upcoming October elections-- pressed to still restrict stores from opening on Good Friday and Easter. He said: "Those of us that believe in God know that there are certain days that we're not supposed to be working and we are supposed to be with our families." That brought a response from council member Raymond Cho who asked Mammoliti whether he would be working only for Christians when he became mayor. Some Council members hope for a less charged debate if the amendment is deferred until after the election.

11th Circuit: Muslim's Employment Discrimination Claim Not Supported

In MackMuhammad v. Cagle's Inc., (11th Cir., May 12, 2010), the 11th Circuit Court of Appeals affirmed the dismissal of a religious discrimination in employment and hostile work environment suit brought by a Muslim man who was rejected for a superintendent's position at a poultry plant. The court said plaintiff had not demonstrated he was qualified for the position, or that similarly situated non-Muslim employees were treated more favorably. It also rejected his claim that references to him in the workplace as "Bin Laden" and jokes about his refusal to eat pork amounted to a hostile work environment. Finally, it dismissed his state law intentional infliction of emotional distress claim.

Two Clergy Sexual Abuse Cases Filed In Florida

The Orlando (FL) Sentinel reports that a new clergy abuse lawsuit was filed yesterday in Orange County, Florida against the Catholic Diocese of Orlando and the Diocese of Gary, Indiana. It accuses former priest Richard Emerson, who was on temporary assignment from Indiana, of abusing the plaintiff in the late 1980's and early 1990's. A second lawsuit was filed in Orange County earlier this month involving allegations against former priest Vernon H. Uhran by an Orlando man who claimed that in 1970, when plaintiff was a 14-year old altar boy, Uhran repeatedly sexually abused him after plying him with alcohol during a spiritual retreat to a beach.

Anonymous Letter Claims To Be From Veteran Who Stole Sunrise Rock Cross

Yesterday's Barstow, California Desert Dispatch published an anonymous letter claiming to explain the theft earlier this week of the Cross on Sunrise Rock in the Mojave National Preserve World War I memorial. (See prior posting.) The newspaper, which said it could not verify the validity of the letter, reported it was transmitted by an anonymous caller who claimed it was written by the person directly responsible for the theft. The letter writer, claiming to be a veteran, said his decision to "lovingly" move the cross was impelled by language in the Supreme Court's recent decision permitting it to remain. (See prior posting.) The letter read in part:

5. The cross was erected illegally on public land in 1998 by a private individual named Henry Sandoz. Since then the government has actively worked to promote the continued existence of the cross, even as it excluded other monuments from differing religions. This favoritism and exclusion clearly violates the establishment clause of the US Constitution.

6. Anthony Kennedy desecrated and marginalized the memory and sacrifice of all those non-Christians that died in WWI when he wrote: '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.' The irony and tragedy of that statement is unique.

7. Justice Kennedy’s words in particular and others like them from the other Justices caused me to act.

8. At the time of its removal there was nothing to identify the cross as a memorial of any kind, and the simple fact of the matter is that the only thing it represented was an oddly placed tribute to Christ. This cross evoked nothing of the sort that Justice Kennedy writes of, it was in the end simply a cross in the desert....

12. We as a nation need to change the dialogue and stop pretending that this is about a war memorial. If it is a memorial, then we need to stop arguing about the cross and instead place a proper memorial on that site, one that respects Christians and non-Christians alike, and one that is actually recognizable as a war memorial.

13. If an appropriate and permanent non-sectarian memorial is placed at the site the cross will be immediately returned to Mr. Sandoz.

14. Alternatively, if a place can be found that memorializes the Christian Veterans of WWI that is not on public land the Cross will promptly be forwarded with care and reverence for installation at the private site.

[Thanks to Scott Mange for the lead.]

UPDATE: The May 16 San Bernadino Sun reports that rewards for return of the stolen cross now total $125,000.