Islamic Scholars Debate UAE's New Law On Organ Transplants

The National yesterday reported on a debate among Islamic scholars over a new legal instrument released this week by the United Arab Emirates permitting organ transplants from patients who are brain dead, but whose heart is still beating with the assistance of a ventilator. A number of other Muslim countries have permitted organ transplants, but some scholars insist that under Islamic law a person is dead only when he or she is no longer breathing. In 2008, Dubai's General Authority for Islamic Affairs and Charitable Activities published a fatwa on its website approving organ donation.

Lawsuit Dismissed After School Board Broadens Anti-Bullying Instruction

In Alameda, California, a group of parents dismissed their lawsuit against the Alameda Unified School District after the board of education agreed to a change one of the safe-schools anti-bullying and diversity lessons. According to a press release from Pacific Justice Institute, parents were seeking to have their young children excused from the class that focused on bullying of gays and lesbians. They argued that the anti-bullying focus on only one group was an attempt to teach young children that "the LGBT lifestyle is both moral and normative." A public records request showed that the vast majority of harassment complaints involved opposite sex and racial harassment and there had been no complaints during the past 18 months on bullying in the elementary grades due to sexual orientation. The schools agreed to change their anti-bullying curriculum to cover all categories-- gender, race, religion, nationality and disability.

Group Asks IRS To Invetigate Church's Online Endorsement of Candidate

Americans United this week wrote the Internal Revenue Service (full text of letter) asking it to investigate a Los Angeles church that endorsed a Neighborhood City Council candidate through postings on the church's website and through Twitter. According to AU (press release), Oasis Church used its website to ask its members to vote in the May 13 Greater Wilshire Neighborhood City Council elections for Alex Jones-Moreno, the church's director of social justice, who was running for reelection. On election day, the church sent out eight tweets on Twitter, most of which urged readers to vote for Jones-Moreno. Under Section 501(c)(3) of the Internal Revenue Code, non-profits are prohibited from participating in any political campaign on behalf of a candidate for elective publid office.

Pakistan Blocking Facebook and YouTube Over Blasphemous Material

In Pakistan yesterday, the Lahore High Court ordered the Ministry of Information Technology and the Pakistan Telecommunication Authority (PTA) to block all access to Facebook's website pending another court hearing on May 31. Pakistan's Express Tribune reported that the order stems from concern over a Facebook page that hosts publicity for the May 20th "Everybody Draw Muhammad" Day. (See prior posting.) PTA attempted to block access to the specific Facebook page two days ago, but apparently it was still accessible at the court hearing. PTI has now ordered access to the entire site blocked, and has set up a toll free number and website to report if objectionable material is still available. (Dawn). Meanwhile Bloomberg reports that PTI is broadening its crackdown, and has now also blocked access to YouTube and 450 other websites carrying blasphemous material. Pakistan Internet traffic has dropped 25% since Facebook and YouTube were blocked.

Caretakers Ready To Erect New Cross On Sunrise Rock When Replacement Appears [UPDATED]

Fox News reported yesterday that the long-time caretakers of the Mojave Desert Veterans' Memorial have constructed an exact replica of the 7-foot cross that was recently stolen from the site and are ready to put it up if the Department of Justice approves. However, on Wednesday night, according to another Fox News report, a different cross reappeared on Sunrise Rock. The National Park Service is evaluating the Cross to see if it is the original one that has been returned, or a new one. That may determine whether it stays. God and Country blog reports on the latest developments.

Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision last month, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) While the cross was still missing, Hiram Sasser, the director of litigation for Liberty Legal Institute, which is representing the VFW, said the theft may have made it simpler to resolve the case on remand. He said: "If there's no cross there, does that mean that the land transfer goes through, it becomes property of the VFW, and we can put the cross back up?" Justice Roberts, in his concurring opinion last month in Salazar v. Buono, said:

At oral argument, respondent’s counsel stated that it "likely would be consistent with the injunction" for the Government to tear down the cross, sell the land to the Veterans of Foreign Wars, and return the cross to them, with the VFW immediately raising the cross again.... I do not see how it can make a difference for the Government to skip that empty ritual and do what Congress told it to do—sell the land with the cross on it.

Meanwhile, on its website Liberty Legal Institute-- in an appeal that seems at odds with its litigation director's theory-- is asking for contributions to help reinstall the memorial on Sunrise Rock, apparently while the litigation proceeds and before the land is formally transferred to VFW. That appeal may now be unnecessary, depending on the Park Service's decision on the cross that has now reappeared.

Court Again Rejects Housing Act Challenge To Homeless Shelter Activities

Last September, an Idaho federal district court held that the homeless shelter component of the Boise Rescue Mission is not a "dwelling" and therefore is not subject to the religious anti-discrimination provisions of the federal Fair Housing Act. It also held that both in the homeless shelter and in the Rescue Mission's second component-- a residential recovery program for individuals with drug or alcohol dependency-- the Religious Freedom Restoration Act bars application of the Fair Housing Act to prohibit the Rescue Mission's religious activities or religious favoritism of certain participants. (See prior posting.) Following that decision, plaintiffs filed a motion to alter or amend the judgment, arguing that RFRA does not apply to suits between private parties, as opposed to a suit against the government. Last week, in Intermountain Fair Housing Council v. Boise Rescue Mission, Inc., 2010 U.S. Dist. LEXIS 48065 (D ID, May 12, 2010), the same Idaho federal district court held it need not decide whether RFRA applies, since the Rescue Mission's activities are protected by the Free Exercise clause of the First Amendment which also bars application of the Fair Housing Act here. It concluded, as it did in its prior decision, that some religious activities-- including those challenged here-- cannot be infringed even if the government has a compelling interest. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Court Rejects Charter School Challenge To Ban On Classroom Use of Bible

In Nampa Classical Academy v. Goesling, (D ID, May 17, 2010), an Idaho federal district court dismissed a challenge by a state funded charter school and two of its teachers to a policy adopted by the Idaho Public Charter School Commission. The Commission adopted the view of the state attorney general that the use of religious documents or texts in a public charter school classroom would violate Art. IX, Sec. 6 of the Idaho Constitution. That section prohibits the use of sectarian books or documents in public school classrooms. Teachers at the Academy wanted to use primary source documents-- including the Bible and the Koran-- in teaching their courses and argued that the ban violated their and their students' 1st and 14th Amendment rights.

The court held that the charter school itself is a political subdivision of the State and therefore has no privileges or immunities to invoke against the State. It held defendants had qualified immunity as to claims by other plaintiffs. Here it is the defendants-- state school officials-- who are the speakers, and they have the right to lawfully control the content of their speech. They are adhering to the Establishment Clause by barring use of religious texts in publicly funded schools. Idaho Press Tribune reports on the decision. (See prior related posting.)

The Charter Commission will hold a previously scheduled hearing on June 11 on revoking the Academy's charter, in part because the Commission believes the school has not complied with the order to avoid using religious documents.

In Uzbekistan, Police Raid On Large Protestant Congregation

Forum 18 reports that in Uzbekistan on Sunday, the police, National Security Service secret police, Tax Inspectorate, Fire Brigade, and Sanitary-Epidemiological Service all raided Church of Christ, one of the largest Protestant congregations in Tashkent. The Russian-language Full Gospel congregation has been registered with the state since 1999. The five-hour raid began Sunday morning one hour after services began. Computers, books and documents (including permission forms signed by parents) were seized. Eight church members, including the church's assistant pastor, were arrested and held for 24 hours. Shortly after their release yesterday, an initial hearing was held in District Court. Their trial is scheduled to continue today. It is not clear what charges have been brought, but the prosecution says it has a letter from a father charging the church with forcing his children to convert. This is the latest in a series of similar raids against Protestant churches in the country. Government officials refuse to discuss the raid.

British Court Dismisses Libel Action By Sikh Leader

A High Court in Britain yesterday dismissed a libel action against free lance journalist Hardeep Singh brought by religious leader Sant Baba Jeet Singh Ji Maharaj. London's Press Gazette and Journalism.co report on the decision. Jeet Singh is the head of Nirmal Kutia Johal, a Nirmal Sikh institution. In an August 2007 article in the Sikh Times, Hardeep Singh accused Jeet Singh of being an impostor and leading a cult. He charged this disturbed the peace in the Sikh community of High Wycombe, promoted blasphemy and encouraged the abuse of women. The Sikh Times has already withdrawn the article and apologized. Hardeep Singh pled justification, fair comment and qualified privilege. The court dismissed the action saying that issues of a religious or doctrinal nature permeate the proceedings. The court would be required to interpret Sikh doctrine to determine whether the charges that Jeet Singh was an impostor were defamatory.

Preliminary Injunction Denied Against Community College Graduation Prayer

Yesterday's Orange County (CA) Register reports that a California federal district judge last week refused to issue a temporary injunction against graduation prayer at two California community colleges. The lawsuit against the South Orange Community College District was filed by faculty and students at Saddleback College. The court said that plaintiffs did not show that they would suffer irreparable injury if the traditional non-sectarian invocation was delivered at graduation. The requested preliminary injunction would have stopped the practice while the lawsuit is pending.

Charges Dropped Against British Street Preacher

In Britain, charges under the Public Order Act have been dropped against a Baptist street preacher who was briefly arrested by police in Workington after he condemned homosexuality as a sin in a conversation with a shopper, and then began a sermon on drunkenness and adultery. (See prior posting.) The Public Order Act was passed originally to deal with football hooligans. Sunday's London Mail and yesterday's LifeSite News reported that the Crown Prosecution Service decided to drop charges against street preacher Dale Mcalpine for insufficient evidence. Mcalpine says he is considering a possible lawsuit against the police with the assistance of the Christian Institute. [Thanks to Scott Idleman via Religionlaw for the lead.]

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.