Israel's High Court Voids Special Payments To Married Yeshiva Students

Israel's Supreme Court today struck down a provision in the country's Minimum Income Guarantee Law that assures special financial benefits for married kollel yeshiva students but does not give comparable stipends to students studying in secular institutions. The current law gives benefits to married couples who do not work, who have three or more children and who do not own an automobile. Around 10,000 students currently receive these payments. Haaretz, Jerusalem Post and YNet News all report on the 6-1 decision by the Court. Supreme Court president Dorit Beinisch's majority opinion said that the special treatment of kollel students violate basic principles of equality. It ordered that the provision for these payments be removed from the 2011 State Budget. Interior Minister Eli Yishai of the religious Shas Party criticized the ruling as discriminatory against the haredi (strictly Orthodox) population and said legislation would be introduced to restore the stipends. Today's opinion came in a case originally filed ten years ago by Arnon Yekutieli, a proponent of secular rights and a former deputy mayor of Jerusalem. He died in 2001

New York Mets Sued By Kosher Food Vendor Over Sabbath Operations

A lawsuit was filed last week against the New York Mets by Kosher Sports, Inc., a kosher food vendor that sells hot dogs, hamburgers, knishes, beer and other food from three portable stands at Citi Field. According to yesterday's New York Post, Kosher Sports claims it has approval from Star-K, its kosher certifying agency, to sell food at baseball games on Friday nights and Saturday afternoons, the Jewish Sabbath. It says that its 10-year contract with Citi Field also permits this. Kosher Sports' lawsuit claims that the Mets, whose owners are Jewish, has nevertheless barred the vendor from selling food on the Sabbath, causing it to lose $500,000 in profits last year. The suit seeks $1 million in damages. Star-K's Rabbi Shmuel Heinemann denies that he has approved Kosher Sports' operation on the Sabbath. [Thanks to Steven H. Sholk and to Joel Katz (Relig. & State In Israel) for the lead.]

Gangs Using Rosaries As Identifiers

While the recent case of a Schenectady, New York school principal who invoked the school's anti-gang paraphernalia ban to suspended a 13-year old student for wearing a rosary outside of his shirt has led to widespread criticism of school authorities, it turns out the principal may have been onto something. Alexandria, Louisiana Town Talk reported Saturday that in fact many gangs have turned to rosaries as a gang symbol after schools began prohibiting bandannas, specific clothing and hairstyles. The gangs tell their members to invoke religious freedom if they are called in by the school principal. According to a San Antonio (TX) Police Department handbook, gang members not only wear certain colors, but they also arrange beads to signal their rank. Jared Lewis, a former California police officer, says that rosaries are most popular among Latino gang members. He says that the Latin Kings gang use colored beads to mark members' rank in the gang-- five black and five gold beads for members; two gold beads for top dogs; while assassins wear all black. Members of the Netas, an East Coast gang with origins in Puerto Rico, wear 78 red, white and blue beads to symbolize the 78 towns in Puerto Rico. Prospective members wear all white beads before they join the gang.

Recent Articles of Interest

From SSRN:

• Ed Morgan, The UN's Book of Judges, (Global Governance, Vol. 16, No. 2, p. 160, April-June 2010).
• David E. Guinn, Religion, Law and Violence: The State's Efforts at Taming the Beast, (Blackwell Companion To Religion and Violence, Andrew R. Murphy, ed., Forthcoming).

From SmartCILP:

• Robert J. D'Agostino, Selman and Kitzmiller and the Imposition of Darwinian Orthodoxy, 2010 BYU Education & Law Journal 1-79.
• Michael H. Lubetsky, Trandafir Competition Winner. Losing Interest: Financial Alchemy in Islamic, Talmudic, & Western Law, 19 Transnational Law & Contemporary Problems 231-260 (2010).
• Martha McCarthy, When Government Expression Collides With the Establishment Clause, 2010 BYU Education & Law Journal 113-128.

Hawaii Governor Talks With Rabbis In Deciding On Civil Union Bill

AP reported yesterday that Hawaii Governor Linda Lingle, who is Jewish and is a Republican, has recently met with two rabbis as she is considering whether to sign or veto HB 444, a bill passed by the Hawaii legislature that allows civil unions for same-sex as well as opposite-sex couples. (Background from Wikipedia.) The two rabbis are on opposite sides of the issue. Rabbi Itchel Krasnjansky who leads Hawaii's Orthodox Jewish Habad movement, says that the Torah teaches that homosexuality, and by extension same-sex marriage, should not be condoned or legalized. However Reform Rabbi Peter Schaktman-- whose Temple Gov. Lingle attends-- says Judaism teaches that all people regardless of sexual orientation are "children of God" and they should not face discrimination. He argues: "Civil unions are a legal arrangement. Therefore, anyone who uses religion to oppose civil unions is purely using religion to further homophobia."

Court Says Reasonableness of Religious Accommodation Is Jury Issue

In Haliye v. Celestica Corp., (D MN, June 10, 2010), Muslim plaintiffs sued their former employer and a temporary employment agency under Title VII of the 1964 Civil Rights Act claiming that defendants discriminated against them on the basis of their religion and failed to accommodate their religious duty to pray five times each day. A Minnesota federal district court refused to grant summary judgment to defendants, concluding that factual issues remained for the jury as to the reasonableness of the religious accommodations offered by defendants. The company had offered to change plaintiffs to a different shift. The temp agency offered alternative assignments to plaintiffs.

Recent Prisoner Free Exercise Cases

In Hodgson v. Fabian, (8th Cir., June 7, 2010), the 8th Circuit rejected a Wiccan inmate's challenges under RLUIPA and the First Amendment to limits on his keeping prayer oil in his cell and limits on the herbs he can purchase and on smudging and incense burning inside. It also rejected his complaints about delay in receiving his religious mail.

In Strope v. Cummings, (10th Cir., June 9, 2010), the 10th Circuit rejected an inmate's complaints alleging deficiencies in the prison's kosher diet, interference with access to scheduled religious services and retaliatory transfer between cell units.

In Gonzalez v. Mullen, 2010 U.S. Dist. LEXIS 55947 (ND CA, May 14, 2010), a California federal district court held that an inmate who objected that he was not allowed to have his cassette player to use to play religious tapes failed to state a cognizable free exercise claim. Prison rules allowed one audio entertainment device, and plaintiff chose a CD player.

In Sparks v. Dennehy, 2009 U.S. Dist. LEXIS 127259 (D MA, Oct. 20, 2009), a Massachusetts federal magistrate judge recommended that plaintiff be permitted to move ahead with equal protection, Free exercise and RLUIPA challenges to the failure of the Massachusetts Department of Corrections to recognize Asatru/Ordinism/Wotanism as a religion, which would give adherents access to group worship, outside clergy and religious literature.

In Eastwood v. Kicklighter, 2010 U.S. Dist. LEXIS 56697 (WD VA, June 8, 2010), a Virginia federal district court rejected an inmate's claims that he was terminated from a vocational class in retaliation for his attendance at a Kairos religious service.

In Mitchell v. Quarterman, 2010 U.S. Dist. LEXIS 56618, (ED TX, June 9, 2010), a Texas federal district court adopted the recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 56620, May 11, 2010) rejecting an inmate's claim that his being observed by female officers while showering and using the toilet amounts to a "substantial burden" on his exercise of his religious beliefs. Maintenance of security in prison, and offering equal opportunity to female correction officers, were held to be compelling interests.

In Burriola v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 57396 (D NV, June 8, 2010), a Nevada federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 57421, Feb. 8, 2010) and dismissed an inmate's Free Exercise and RLUIPA challenges to a prison rule that permits him to possess no more than ten magazines. Plaintiff, a Seventh Day Adventist, argued that distribution of religious periodicals is part of his faith, and he needs numerous copies (he was in possession of 50 copies that were confiscated) because the need to distribute literature may arise at any time and place.

In Gundlah v. Pallito, 2010 Vt. Super. LEXIS 12 (VT Super., March 18, 2010), a Vermont prisoner who was sent to Florida for confinement pursuant to the Interstate Corrections Compact sued in Vermont challenging Florida's policy of not serving kosher meals in its prisons. A Vermont trial court held that even though the claim has constitutional dimensions, this is merely a dispute over conditions of confinement in Florida, and is to be resolved by the Florida Department of Corrections under Florida law.

In Levesque v. New Hampshire, 2010 U.S. Dist. LEXIS 57278 (D NH, June 9, 20010), a New Hampshire federal district court adopted a magistrate's recommendations ( 2010 U.S. Dist. LEXIS 57249, May 12, 2010), rejecting an inmate's claim that his mental health treatment amounts to coercive religious programming, and finding instead that it is an entirely secular medical treatment.

Rehearing Petition Filed In Challenge To Prayer and Presidential Oath At Inauguration

Last week, Michael Newdow filed a Petition for Panel Rehearing or Rehearing En Banc with the D.C. Circuit in Newdow v. Roberts, an Establishment Clause challenge to prayer and use of "so help me God" in the oath at Presidential inauguration ceremonies. Last month, the D.C. Circuit dismissed the lawsuit. Two judges held that the case was moot and that plaintiffs lacked standing, while the third would have dismissed on the merits. (See prior posting.) [Thanks to Bob Ritter for the lead.]

European Court Holds Russia Violated ECHR In Dissolving Moscow Jehovah's Witnesses

In Jehovah's Witnesses of Moscow v. Russia, (ECHR, June 10, 2010), the European Court of Human Rights held that an order by a Russian court dissolving the Moscow branch of the Jehovah's Witnesses and placing a permanent ban on its activities violates Article 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights read in light of Article 11 (freedom of assembly and association). The government's refusal to re-register the organization under the 1997 Religions Act had no legal basis and also violates ECHR Article 11 read in light of Article 9. The Court found that:

The domestic courts did not adduce "relevant and sufficient" reasons to show that the applicant community forced families to break up, that it infringed the rights and freedoms of its members or third parties, that it incited its followers to commit suicide or refuse medical care, that it impinged on the rights of non-Witness parents or their children, or that it encouraged members to refuse to fulfil any duties established by law. The sanction pronounced by the domestic courts was excessively severe in view of the lack of flexibility in the domestic law and disproportionate to whatever legitimate aim was pursued.

The Court also held that the length of the proceedings against the organization-- six years-- violated Article VI of the Convention (right to a fair trial within a reasonable time). A press release from the Court summarizes the decision. [Thanks to Institute on Religion & Public Policy for the lead.]

Newly Released Kagan Memos Show Her Involvement In Religious Freedom Issues

Supreme Court nominee Elena Kagan's views on religious freedom issues may have been fleshed out a bit in the release yesterday by the Clinton Library of 74 boxes of files (some 43,000 pages) of documents relating to Kagan's service from 1995-1999 with the White House in Domestic Policy positions. This supplements other files released earlier this month. (Links to all documents released.) The memo (full text) that is most revealing of Kagan's personal views is one suggesting that the Solicitor General's office should consider supporting a petition for certiorari filed in the U.S. Supreme Court in a housing case. Here is a portion of what Kagan had to say in the memo:

In the case, Smith v. Fair Employment and Housing Commission, the California Supreme Court rejected a RFRA claim brought by a landlady who claimed that complying with a state law prohibiting discrimination in accommodations on the basis of marital status would violate her religion. The plurality opinion of three Justices reasoned that the law did not "substantially burden" her religion, as RFRA requires, because she could earn a living in some other way than by leasing apartments....

The plurality's reasoning seems to me quite outrageous almost as if a court were to hold that a state law does not impose a substantial burden on religion because the complainant is free to move to another state. Taken seriously, this kind of reasoning could strip RFRA of any real meaning.

The New York Times today reports on this memo. Two other memos show Kagan's involvement in religious freedom issues, but shed less light on her personal views. In one (full text) she discusses a proposed Executive Order on religious expression in the federal workplace, writing:

The order recognizes constraints on such expression, imposed by the government's interests in workplace efficiency and the Establishment Clause's prohibition on endorsement of religion. But the order tries to show ... that within these constraints, there is substantial room for discussion of religious matters.... [T]he Department of Justice as a whole is quite negative about the order. DOJ believes that the document does not give enough weight to establishment clause concerns ... [or] to what it has called "sound employment policy," including interests in workplace efficiency. In sum, DOJ believes the document conveys a tone that is too permissive of employee religious expression.

Kagan's third memo (full text) reacted to requests that the White House examine an FBI search of World Christian Church and an associated university. Some of those complaining claimed the federal government was trying "to totally regulate all Christian education." [Thanks to Christopher Lund via Religionlaw for the lead.]

Pope's Homily Ending Year For Priests Addresses Abuse Scandal, Catholic Theology

AP reports that Pope Benedict XVI delivered a homily this morning (full text) at a Mass in St. Peter's Square, concelebrated by 15,000 priests, to mark the end of the Vatican's Year for Priests. The Pope directly addressed the Church's sex abuse scandal, saying:

It was to be expected that this new radiance of the priesthood would not be pleasing to the "enemy"; he would have rather preferred to see it disappear, so that God would ultimately be driven out of the world. And so it happened that, in this very year of joy for the sacrament of the priesthood, the sins of priests came to light – particularly the abuse of the little ones, in which the priesthood, whose task is to manifest God’s concern for our good, turns into its very opposite.

We too insistently beg forgiveness from God and from the persons involved, while promising to do everything possible to ensure that such abuse will never occur again; and that in admitting men to priestly ministry and in their formation we will do everything we can to weigh the authenticity of their vocation and make every effort to accompany priests along their journey, so that the Lord will protect them and watch over them in troubled situations and amid life’s dangers.

Had the Year for Priests been a glorification of our individual human performance, it would have been ruined by these events. But for us what happened was precisely the opposite: we grew in gratitude for God’s gift, a gift concealed in “earthen vessels” which ever anew, even amid human weakness, makes his love concretely present in this world. So let us look upon all that happened as a summons to purification, as a task which we bring to the future and which makes us acknowledge and love all the more the great gift we have received from God.

Fashioning much of his homily around the text of the 23rd Psalm, the Pope also attacked the Deism of the Enlightenment period:

God personally looks after me, after us, after all mankind.... He is not a distant God, for whom my life is worthless. The world’s religions, as far as we can see, have always known that in the end there is only one God. But this God was distant. Evidently he had abandoned the world to other powers and forces, to other divinities. It was with these that one had to deal. The one God was good, yet aloof. He was not dangerous, nor was he very helpful. Consequently one didn't need to worry about him. He did not lord it over us.

Oddly, this kind of thinking re-emerged during the Enlightenment. There was still a recognition that the world presupposes a Creator. Yet this God, after making the world, had evidently withdrawn from it. The world itself had a certain set of laws by which it ran, and God did not, could not, intervene in them. God was only a remote cause. Many perhaps did not even want God to look after them. They did not want God to get in the way. But wherever God’s loving concern is perceived as getting in the way, human beings go awry.

Court Upholds Limit On Leafleting By Christian Group At Arab Festival

In Saieg v. Haddad, 2010 U.S. Dist. LEXIS 56331 (ED MI, June 7, 2010), a Michigan federal district court upheld as a valid "time, place and manner regulation" a requirement that any literature distribution at the annual Dearborn, Michigan Arab International Festival must take place from a booth in the vendor area. Dearborn has one of the largest Muslim populations in the United States. Plaintiff, founder of a ministry whose purpose is to proclaim the Christian Gospel to Muslims, sought to continue Arab Christian Perspective's pre-2009 practice of handing out literature while roaming the public sidewalks at the Festival. Festival organizers furnished plaintiff a booth, free of charge. Also, plaintiff and his associates can "mingle throughout the Festival and talk to people. Additionally, while circulating freely, they will be able to wear pins containing a message. The sole issue of contention is leafleting." The court concluded that the restriction is content-neutral, is narrowly tailored to serve a significant governmental interest and leaves open ample alternative channels for communication. The court also rejected a selective enforcement claim against the city.

Excusing Potential Jurors With Religious Holiday Conflict Is OK'd

In State of New Jersey v. Banks, (NJ App., June 9, 2010), the defendant appealed his murder conviction, challenging the trial judge's exclusion of three prospective jurors who said they could not attend the trial on one of the days it was scheduled because of their observance of Yom Kippur. At trial, when defense counsel objected that the judge's actions were excluding everyone who is Jewish, the judge responded: "There are Jewish people who I am sure do not honor the holiday and they are welcome to sit. We are not closed for court. I honor any kind of holiday of a person who has religious observance."

On appeal, defendant argued that "the trial court's actions systematically and entirely excluded members of a cognizable group (observant members of the Jewish faith) from the jury." The appeals court rejected defendant's claim that he was denied an impartial jury. It said:

Not all potential Jewish jurors were excused from serving on the case. The three jurors were not removed because of any perceived bias. Nor were they improperly removed by the State exercising peremptory challenges based on religious affiliations.

Geert Wilders' Party Makes Strong Showing In Dutch Elections

Yesterday's New York Times and the London's Financial Times report that Parliamentary elections in the Netherlands on Wednesday resulted in a surprisingly strong showing for the anti-immigration Freedom Party of Geert Wilders. The party, coming in third, won 16% of the vote and captured 24 seats in the 150-seat House of Representatives, the main chamber of Parliament. The largest number of seats-- 31-- went to the Liberal Party, but it now needs coalition partners to capture a majority. Wilders is pressing to become part of the coalition government. As election results were announced late Wednesday, Wilders said: "More safety, less crime, less immigration and less Islam is what the Netherlands has chosen. We would love to govern. I don’t think other parties can ignore us." Meanwhile, Wilders is facing charges in the Netherlands of inciting hatred and and discrimination against Muslims and non-Western immigrants, and insulting Muslims, growing out of the anti-Muslim film, Fitna, that he produced. (See prior posting.)

Court Rejects Landowner's RLUIPA Challenge To Mixed Use Zoning Ordinance

In Dixon v. Town of Coats, 2010 U.S. Dist. LEXIS 56740 (ED NC, June 9, 2010), a North Carolina federal district court rejected a RLUIPA challenge as well as federal and state constitutional challenges to a zoning ordinance that excluded religious assemblies from a six-block Mixed Use Village in downtown Coats, North Carolina. The court held that while a landowner who intends to rent his property to a Christian church has standing to bring a "substantial burden" claim under RLUIPA, the exclusion of churches from one area does not place a substantial burden on free exercise when other ares in the Town are available for churches. The court also rejected plaintiff's claim under the "equal terms" provision of RLUIPA, holding that the plaintiff must be "a religious assembly or institution" to bring a claim under this section. The court went on to reject federal and state free exercise claims and a federal equal protection claim.

Ecclesiastical Abstention Doctrine Bars Court From Deciding Governance Dispute

In Rentz v. Werner, (WA App., June 7, 2010), a Washington state appellate court held that the ecclesiastical abstention doctrine precludes the court from adjudicating a dispute between former members of the Aquarian Foundation, a spiritualist church headquartered in Seattle, Washington, and the church’s current minister. At issue is the interpretation of the church's articles of incorporation and bylaws. Plaintiffs allege that the minister improperly expelled them and others from church membership. The minister argues that she is president of the congregation and its minister for life, and that those she expelled were committing heresy. The court concluded that the issues raised in the litigation go to the core of the church's ecclesiastical affairs, and that the First Amendment protects against judicial interference in religious belief and practice whether the church is congregational or hierarchical.

Judge, Wife of Tony Blair, Cleared Over Sentencing Comments

UK Press Association yesterday reported that Britain's Office for Judicial Complaints cleared Cherie Blair, wife of former Prime Minister Tony Blair, of charges of judicial misconduct. (OJC Statement, 6/10). Blair sits as a part-time judge at Inner London Crown Court, using her maiden name, Cherie Booth. As previously reported, Booth sentencing defendant Shamso Miah in an assault case, told him: "I am going to suspend this sentence for the period of two years based on the fact you are a religious person and have not been in trouble before. You are a religious man and you know this is not acceptable behaviour." Both the National Secular Society and the British Humanist Association complained that Blair acted in a discriminatory manner in suggesting that a non-religious person would have been treated more harshly. At the same time, some in Britain on the political right charged bias in favor of Muslims.

Virginia Supreme Court Says Division Statute Does Not Apply To Episcopal Church Split

Today in Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, (VA Sup. Ct., June 10, 2010), the Virginia Supreme Court reversed a decision of the state's circuit court (see prior posting) and held that Virginia's 1867 "Division Statute" does not apply to nine congregations that broke away from The Episcopal Church and affiliated with the Convocation of Anglicans in North America. The statute, Va. Code § 57-9(A), provides: "If a division has ... occurred ... in a church or religious society, to which any such congregation whose property is held by trustees is attached, the members of such congregation over 18 years of age may, by a vote of a majority ..., determine to which branch of the church ... such congregation shall thereafter belong." The Supreme Court held that while there had been a "division" in The Episcopal Church, the Convocation of Anglicans in North America is not a "branch" of The Episcopal Church. This holding revived the declaratory judgment actions that had been filed to determine ownership under real property and contract law of the property of the break-away congregations. [Thanks to Bob Tuttle for the lead.]

$1 In Damages Awarded In Claim That Police ID Card Containted Mark of the Beast

In Brooklyn, New York, a federal judge has awarded damages of only $1 to a school safety officer who was suspended from her job after she refused to be fingerprinted or accept the New York Police Department's new biometric identification card with embedded computer chips. Velma Craig, a nondenominational Christian, believes the card contains the "mark of the beast", warned against in the Book of Revelation. Today's New York Times reports that in 2007, the court granted summary judgment to Craig, finding that the city had "utterly failed" to explain why it could not have accommodated Craig's religious beliefs. Damages were left to a later phase. Last month the court appointed a lawyer for Craig, but he asked to be dismissed after Craig refused to cooperate in preparation for the damages trial. Then, when Craig asked for a delay in the jury trial that was set to start yesterday, the court ruled that if she did not proceed on her own, it would merely award her $1 in damages. Craig agreed to that, but said she would appeal.

Lawsuit Challenges Health Care Reform As Infringement of Religious Beliefs

Yesterday, the American Center for Law & Justice, on behalf of five plaintiffs, filed a federal lawsuit challenging the constitutionality of the individual mandate imposed by the recently enacted health care reform legislation. (Press release.) In addition to claiming that this portion of the Patient Protection and Affordable Care Act exceeds Congress' power under the Commerce Clause, the lawsuit alleges that the new law violates the rights of three of the plaintiffs under the Religious Freedom Restoration Act. The complaint (full text) in Seven-Sky v. Holder, (DDC, filed 6/9/2010) alleges, for example, that plaintiff Susan Seven-Sky, a chiropractor and massage therapist:

15. ... believes in natural forms of healing and trusting in God to protect her from illness or injury and to heal her of any afflictions, no matter the severity of the health issue, and does not need, or want to be forced to buy, health insurance coverage.

16. In addition, Seven-Sky has a sincerely held religious belief that God will provide for her physical, spiritual, and financial well-being. Being forced to buy health insurance conflicts with Seven-Sky's religious faith because she believes that she would be indicating that she is not really sure whether God will, in fact, provide for her needs, so she needs to rely on a health insurance policy as a back-up plan.

Similar allegation are set out as to two other plaintiffs.