DC Circuit Strikes Down National Park Speech Permit Rules

In Boardley v. United States Department of the Interior, (DC Cir., Aug. 6, 2010), the D.C. Circuit Court of Appeals struck down as unconstitutionally overbroad on their face requirements that individuals and small groups obtain a permit before engaging in expressive activities in national parks, even in designated free speech areas. The regulations apply to both public assemblies and distribution of written materials. The lawsuit was filed by a Christian activist who, along with his associates, was stopped from distributing gospel tracts without a permit at the Mt. Rushmore National Memorial. The court left open the possibility that the government can rewrite the rules to make them applicable only to large groups. Fox News yesterday reported on the decision. (See prior related posting.)

New York MTA Accepts Controversial Anti-Mosque Ad After Lawsuit Is Filed

After a lawsuit was filed on Friday, the New York Metropolitan Transit Authority agreed to permit a banner ad on its buses, sponsored by the American Freedom Defense Initiative opposing the proposed mosque and Islamic center near Ground Zero. (Press release from David Yerushalmi law firm). The ad (photo) reads "Why There?",  and equates the"WTC Jihad Attack" with "WTC Mega Mosque". The federal lawsuit (full text of complaint in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, Aug. 6, 2010), alleges that MTA's objections to the ad for equating the proposed mosque with the 9-11 attack amount to content- and viewpoint-based censorship in violation of the First Amendment and the Equal Protection Clause. The complaint includes examples of other controversial religious and political ads accepted by MTA. Exhibits to the complaint also show various amended versions of the ad submitted during negotiations with MTA-- each changing the way in which the Twin Towers and the plane attack on them are depicted.

Consent Order Allows Kosher Slaughtering To Continue In New Zealand While Suit Is Pending

In New Zealand where the Jewish community has filed suit challenging the government's refusal to exempt kosher slaughtering from a new Animal Welfare Slaughter Code that requires animals be stunned before being killed (see prior posting), the parties have agreed to allow kosher slaughtering to continue while the litigation is pending. NZPA (via Voxy.co.nz) reports that a consent order was issued today by the High Court at Wellington requiring a temporary exemption for kosher slaughtering until the case is decided next year.

Baha'i Leaders In Iran Sentenced To 20 Years

CNN reported yesterday that in Iran, according to the Baha'i International Community, seven top Baha'i leaders who were arrested in 2008 and held without charges have now each been sentenced to 20 years in prison.  During the trial, the accused had only about one hour's access to counsel. Among the charges eventually filed against the leaders were espionage, propaganda activities against the Islamic order, and the establishment of an illegal administration. An appeal of the sentences is being undertaken. Baha'i is Iran's largest non-Muslim minority, and members of the Baha'i faith have traditionally been discriminated against by the government in their religious exercise and in their access to public services.

UAE Islamic Authority Says Workers Can Break Ramadan Fast To Avoid Heat-Related Health Problems

Ramadan begins this week. AFP reports that in the United Arab Emirates, the General Authority for Islamic Affairs and Endowments has issued a ruling that workers facing high heat and humidity can break their Ramadan fast before sundown to avoid health problems. The fatwa says this only applies if the worker starts the day fasting.

Recent Articles of Interest

From SSRN:

• David B. Owens, No Bueno, Buono: An Essay on Salazar v. Buono and Establishment Clause Remedies, (June 7, 2010).
• Rony Guldmann, Beyond the Jurisprudence of Politeness: On the Relativity of Religious Neutrality, (July 20, 2010).
• Ori Aronson, Out of Many: Military Commissions, Religious Tribunals, and the Democratic Virtues of Court Specialization, (Virginia Journal of International Law, Vol. 52, No. 2, 2010).
• Timur Kuran & Scott Lustig, Judicial Biases in the Ottoman Empire: The Roles of Inter-Court Competition and Personal Exchange, (Economic Research Initiatives at Duke, July 22, 2010).
• Mark L. Movsesian, Fiqh and Canons: Reflections on Islamic and Christian Jurisprudence, (Seton Hall Law Review, Forthcoming).
• Ian T. Benson, Living Together with Disagreement: Pluralism, the Secular, and the Fair Treatment of Beliefs in Canada Today, (The Ronning Centre Forums II, 2010).
• Ian T. Benson, Is Canada Moving Towards or Away from Religious Inclusivity in the Public Sphere?, (Religion in the Public Square in Canada Conference, 2010).
• Ming Chen, Alienated: A Reworking of the Racialization Thesis after September 11th, (American University Journal of Gender, Social Policy & the Law, Vol. 18, No. 3, p. 101, 2010).
• Shannon Weeks McCormack, Taking the Good with the Bad: Recognizing the Negative Externalities Created by Charities and Their Implications for the Charitable Deduction, (Arizona Law Review, Forthcoming).

From SmartCILP:

• David A. Harris, Law Enforcement and Intelligence Gathering in Muslim and Immigrant Communities After 9/11, 34 N.Y.U. Review of Law & Social Change 123-190 (2010).
• Adam H. Koblenz, Jewish Women Under Siege: The Fight for Survival on the Front Lines of Love and the Law, 9 University of Maryland Law Journal of Race, Religion, Gender & Class 259-301 (2009).
• Steven Menashi, Toward a "More Enlightened and Tolerant View": Educational Choice and the Regulation of Religious Institutions, 66 N.Y.U. Annual Survey of American Law 31-74 (2010).

NYT Reviews Growing Opposition To Mosque Projects Around the Country

Today's New York Times carries a front-page story titled Across Nation, Mosque Projects Meet Opposition. The article observes:

In all of the recent conflicts, opponents have said their problem is Islam itself. They quote passages from the Koran and argue that even the most Americanized Muslim secretly wants to replace the Constitution with Islamic Shariah law.

These local skirmishes make clear that there is now widespread debate about whether the best way to uphold America’s democratic values is to allow Muslims the same religious freedom enjoyed by other Americans, or to pull away the welcome mat from a faith seen as a singular threat.

Illustrating this type of attitude, the Times quotes Diana Serafin, a recently unemployed grandmother who attends Tea Party events, who is part of the opposition to an Islamic center project in Temecula, California:

As a mother and a grandmother, I worry. I learned that in 20 years with the rate of the birth population, we will be overtaken by Islam, and their goal is to get people in Congress and the Supreme Court to see that Shariah is implemented. My children and grandchildren will have to live under that.

I do believe everybody has a right to freedom of religion,” she said. “But Islam is not about a religion. It’s a political government, and it’s 100 percent against our Constitution.

However at a recent rally rally in Temecula, supporters of the mosque outnumbered protesters.

California School District Backed In Offering Bible As Literature and History Course

One News Now reports that church members, students, parents and residents from the surrounding cities packed the room in which the board of the Chino Valley Unified School District met last Thursday to support the decision the Board reached last month (One News Now, 7/5) to offer an elective  course in Bible as/in Literature and History in district high schools. The class is authorized in all four of the district's high schools and funds have been donated to cover the cost of the course. School board Vice President James Na at Thursday's meeting said: "[The Bible] will bring greatness in students' lives. I would like to thank God and Christian parents who are going to support this class." A few parents at Thursday's meeting argued that the class was unconstitutional, but board member Na said they misunderstand the class. It will not indoctrinate their children.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Ward v. Rabideau, 2010 U.S. Dist. LEXIS 77535 (WD NY, July 30, 2010), a New York federal district judge held that Jewish prisoners had raised material factual issues that preclude summary judgment of defendants on their complaint that inedible and improperly prepared food was served to inmates at Groveland Correctional Facility requesting a kosher diet. Also it held that while provision of a Jewish chaplain is not required if there is an alternative means of worship, here that condition was not met because authorities prevented Jewish inmates from having materials needed for their worship.

In Marzuq v. Albino, 2010 U.S. Dist. LEXIS 77509 (D NJ, July 29, 2010), a New Jersey federal district court dismissed an inmate's Free Exercise complaint with leave to file an amended complaint. Plaintiff claimed he was required to participate in a therapeutic community in violation of his religious beliefs for refusing to participate by having his classification status increased. However he failed to allege what religion he practices or how his beliefs were violated. His retaliation and conspiracy claims were also dismissed.

In Shiple v. Beck, 2010 U.S. Dist. LEXIS 78236 (ND OH, Aug. 2, 2010), an Ohio federal district court rejected an inmate's claim that his free exercise right were violated when a restriction on his commissary rights precluded him from buying reading glasses he needed to read his Bible.

In Alford v. Knight, 2010 U.S. Dist. LEXIS 78607 (ED NC, March 15, 2010), a North Carolina federal magistrate judge permitted plaintiff to proceed in forma pauperis with his claim that while he was residing at a Veterans Center, he was forced to participate in religious activities. He alleges he was required to sit through religious services, was punished for closing his eyes during services and refusing to comment or write religious essays.
In Damron v. Sims, 2010 U.S. Dist. LEXIS 78955 (SD OH, Aug. 5, 2010), and Ohio federal magistrate judge recommended denial of a summary judgment request that the court order accommodation of various Christian Separatist religious practices.

In Kramer v. Wisconsin Department of Corrections, 2010 U.S. Dist. LEXIS 78777 (WD WI, Aug. 3, 2010), a Wisconsin federal district court permitted an inmate to add an establishment clause claim in his lawsuit challenging a refusal of his request for certain religious items and seeking group worship with other Odinists.

In Dempsey v. Cain, 2010 U.S. Dist. LEXIS 78965 (MD LA, Aug. 4, 2010), a federal district court adopted a magistrate's recommendation (2010 U.S. Dist. LEXIS 78977, July 8, 2010) and dismissed a claim by an inmate that he was deprived of his Bible and other religious materials for several months. The court concluded that the deprivation did not create a substantial burden on plaintiff's free exercise because it did not force him to significantly change his religious behavior or beliefs.

Court OK's Sectarian City Council Invocations

A New York federal district court this week rejected an Establishment Clause challenge to sectarian prayers offered at Town Board meetings in Greece, New York.  In Galloway v. Town of Greece, (WD NY, Aug. 5, 2010), the court, in an 83-page decision, upheld the town's policy of inviting clergy from all denominations in the town to offer an invocation, without any guidance or restriction on the content of their prayer. That policy led to almost all of the prayers being delivered by Christian clergy. The court wrote in part:

[T]he Court has considered the nature of the prayers, and finds that they did not proselytize or advance any one, or disparage any other, faith or belief. It is undisputed that the vast majority of prayers at issue in this case were offered by Christian clergy, and that many of them contained at least one reference to Jesus Christ.... Otherwise, though, most of the prayers that Plaintiffs maintain are sectarian are indistinguishable from prayers that they say are non-sectarian....

Plaintiffs maintain ... that sectarian legislative prayers necessarily violate the Establishment Clause.... Plaintiffs contend that prayers may only refer to a "generic God," and must not refer to any particular deity or to any religious belief, such as the Holy Trinity, that is specific to a particular religion or group of religions. Plaintiff's further maintain that to prevent sectarian prayer, the Town must instruct potential prayer-givers to give inclusive ecumenical prayers. The Court disagrees.

It is clear to this Court that Marsh [v. Chambers] does not require that legislative prayer be non-sectarian. To the contrary, Marsh upheld the constitutionality of legislative prayer, thereby specifically carving out a unique exception to the Lemon test, based primarily if not exclusively on the long history of legislative prayer in Congress, which is often overtly sectarian....

The Court also disagrees with Plaintiffs' contention that the Town must, or even can, instruct potential prayer-givers that prayers should be "inclusive and ecumenical." In Lee [v. Weisman], the Supreme Court characterized the defendant school's similar instruction to an invited rabbi as an impermissible attempt by government to control the content of prayer.... The Court finds that the policy requested by Plaintiffs would violate Lee, since it would likewise impose a state-created orthodoxy. In this regard, the Court respectfully disagrees with the Fourth Circuit's decision in Turner [v. City Council of the City of Fredericksburg, Virginia].

Moreover, the Court finds that Plaintiff's proposed non-sectarian policy, which would require Town officials to differentiate between sectarian prayers and non-sectarian prayers, is vague and unworkable, as Pelphrey [v. Cobb County, GA] demonstrates. The instant case illustrates the illusory nature of so-called nonsectarian prayer, since as shown above, many of the prayers that Plaintiffs say are sectarian are indistinguishable from prayers that they say are not.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Suits Against Scientology By 2 Sea Org Members Dismissed Under Ministerial Exception Doctrine

In two related cases brought by a husband and wife, a California federal district court yesterday applied the constitutionally compelled  "ministerial exception" doctrine to dismiss suits against the Church of Scientology alleging violations of the Trafficking Victims Protection Act. The TVPA (18 USC 1589(a)(1)) prohibits knowingly obtaining the labor or services of a person by means of force, threats of force, physical restraint, or threats of physical restraint to that person or another person, and permits victims to bring civil actions for damages (18 USC 1595).

In Claire Headley v. Church of Scientology International, (CD CA, Aug. 5, 2010), plaintiff was a member of Scientology's Sea Org. Sea Org members live communally, are assigned physically difficult tasks, and are subject to strict discipline. They are not allowed to raise children and remain Sea Org members. Plaintiff says she had two abortions under the pressure of this policy. In Marc Headley v. Church of Scientology, (CD CA, Aug. 5, 2010), plaintiff was also a Sea Org member and alleged instances of physical abuse and acts of discipline. In dismissing the lawsuits on First Amendment grounds, the court said:

Defendant here represents that the challenged conduct was doctrinally motivated..... Therefore, inquiry into these allegations would entangle the Court in the religious doctrine of Scientology and the doctrinally-motivated practices of the Sea Org. It would also require the Court to analyze the criteria Defendant uses to choose ministers and the reasonableness of the methods used to enforce church policy and encourage members to remain with the organization and the religion itself.... In order to determine whether Defendant’s means of persuading members to remain with the Sea Org, etc. fall within the purview of the TVPA, a trier of fact must inquire into Scientology’s policies, practices, and scriptures.

Today's St. Petersburg Times reports on the decisions. (See prior related posting.)

Will Effective Portions of Arizona's SB 1070 Hit Church Vans?

While portions of Arizona's SB 1070 targeting illegal immigrants was struck down by a federal court last month (full text of decision), other portions of the law have gone into effect. According to New America Media today, church leaders are particularly concerned about one of those provisions that has gone into effect, Sec. 13-2929, which provides:

A. It is unlawful for a person who is in violation of a criminal offense to: 1. Transport or move or attempt to transport or move an alien in this state in a means of transportation if the person knows or recklessly disregards the fact that the alien has come to, has entered or remains in the United States in violation of law....

Church groups often transport their undocumented members to services or spiritual retreats in church vans or buses. The Phoenix Police Department says the provision would not be triggered by a traffic stop of a bus or van for speeding or ignoring a stop sign. But University of Arizona law professor Gabriel Chin says that police could stop a vehicle for suspicion of violating federal laws against harboring undocumented immigrants and then invoke this provision of SB 1070 to charge a state offense.

Southern Baptist Minister In Runoff For U.S. House In Georgia's 7th District

The Macon Telegraph yesterday profiled Rev. Jody Hice who will be one of two candidates in the run-off next Tuesday for the Republican nomination for the U.S. House of Representatives in Georgia's Republican-leaning 7th District that encompasses the eastern suburbs of Atlanta.  Hice, a Southern Baptist, was prominent in battles to display the Ten Commandments in public buildings, and defied the IRS by endorsing 2008 Presidential candidate John McCain from the pulpit. His campaign office features a poster of Jesus kneeling in prayer with one hand outstretched touching the crack in the Liberty Bell. Hice particularly attracted attention with billboards on the Atlanta freeways that show President Obama with a Soviet hammer and sickle. Hice has focused his campaign on fiscal issues, but still maintains his half-hour radio show on the Christian Satellite Network. Some say he violated tax laws on non-profits when in his July 27 broadcast Hice gave a brief update on the runoff and asked for listeners' prayers. Both Hice's Let Freedom Ring Ministries and the network are non-profits. The 7th district's current congressman, Republican John Linder, is retiring. Hice's opponent in the run-off is Rob Woodall, Linder's former chief-of-staff. Woodall was the front-runner in the initial round of primary voting.

French Jews Wage Legal Battle To Reclaim Family Names

London's Jewish Chronicle yesterday reported on the legal battle being waged by some Jews in France who want to reclaim their traditional family name. Many years ago, their parents changed the family name to something that sounds more French to avoid anti-Semitism. French law provides that family names are immutable and must be continued. Foreign-sounding names can be changed, and a person can reclaim a name if it is about to disappear, but only if it is a French name. Now, for example, Olivier Raimbaud wants to reclaim her family name of Rubinstein, and has been filing requests for 25 years with the State Council to do so. When requests are considered, the government insists that the entire family agree to the change. A new group, The Strength of the Name, has recently filed four more requests for individuals at the justice ministry. Some of those seeking a name change are reacting to right-wing politicians like National Front leader Jean-Marie Le Pen who has accused Jews of hiding their identity in order to dominate France.

Australian Judge To Rule On Whether Witness Can Wear Niqab

Controversy over Muslim women wearing the full-face veil has now made its way to Australia.  According to WA Today, the former director of the Muslim Ladies College of Australia, Anwar Sayed, is on trial in a court in Perth for fraudulently obtaining over $750,000 (AU) in public funding. One of the witnesses against him, a tutor at the school, has requested that she be allowed to wear a niqab while on the witness stand. Sayed's attorneys argue that the witness, identified only by her first name, Tasneem, should have to testify with her face uncovered so that the jury can assess her credibility in part by her facial expressions. Prosecutors say that forcing Tanseem to remove the niqab that she usually wears in public would create stress that could affect her facial expressions while testifying. Since the issue has been raised, Sayed has received death threats which police are investigating. And WA Today reports this morning that Sayed has been stabbed after being stopped in his car.  Apparently he was not injured seriously. Meanwhile Sayed's lawyers are suggesting some possible compromises-- testimony by closed circuit television with a female officer present with the witness, or at least a jury instruction on how to take account of the witness' lack of facial expression. The court will rule on the issue August 19. Meanwhile Australian politicians have begun to speak out on both sides of the issue.

Kenya Passes New Constitution Despite Opposition From Churches

The New York Times reports that in yesterday's referendum in Kenya, 67% of the voters approved the country's new constitution (full text of draft document) according to provisional results released today.  The new constitution limits the powers of the president, provides for land reform and creates a bill of rights. As reported by CNN, Kenya's Christian churches had opposed the Constitution because of provisions they say will permit abortion on demand and because of the document's recognition of Muslim Khadis courts. (See prior posting for details.) The U.S. government supported the draft Constitution, but some conservative Christian groups in the United States, particularly the American Center for Law & Justice, opposed the draft. Three conservative members of Congress wrote the State Department's Inspector General in May asking for an investigation of whether there has been a violation of provisions that prohibit spending of U.S. government funds to lobby for or against abortion. (Christian Science Monitor 5/14).

U.S. Court Orders Russia To Return Book Collection To Jewish Group

In Agudas Chasidei Chabad of United States v. Russian Federation, (D DC, July 30, 2010), the DC federal district court found that plaintiff had presented a legally sufficient prima facie case and entered a default judgment against the Russian Federation ordering it to return two collections of valuable religious books and manuscripts (the Library and the Archive) to Chabad. The court concluded that the expropriation of both collections was discriminatory. The Archive was taken by the Soviet Army in World War II from the Nazis who had expropriated it. The court found three separate takings over time of the Library-- one during the Russian Revolution, one when the Soviet government failed to return the books, and a third in 1992 when the Russian Federation closed all legal avenues for retrieval of the collection. Russia had earlier withdrawn from participating further in the litigation, arguing that the court lacked jurisdiction over it and indicating it would not consider any court orders binding on it. The Foreign Sovereign Immunities Act (28 USC 1608(e)) still requires that a claimant establish its right to relief before a default judgment can be entered. The court's order (full text) requires defendants to deliver the collections to the U.S. embassy in Moscow or to a destination of plaintiff's choosing. A press release from Bingham McCutchen LLP that represented plaintiffs reported on the decision. (See prior related posting.)

Religious Leaders React On Both Sides of Prop 8 Decision

USA Today this morning reviews the reaction of a number of religious leaders on both sides of the debate to a California federal district court's ruling yesterday (see prior posting) that Proposition 8, banning same-sex marriage, is unconstitutional. The Mormon Church, one of the strongest supporters of Proposition 8, urged all sides "to act in a spirit of mutual respect and civility toward those with a different opinion" as the debate continues. Rev. Susan Russell, head of Integrity-- an Episcopal group supporting gay rights-- said: "No one has the right to write their theology into our Constitution. (This) should be celebrated by people of all faiths, of any faith and of no faith." The California Catholic Conference said: "That the judge should find the marriage -- civilizations' longstanding public policy -- irrational and discriminatory does a great injustice to the institution itself and ultimately will further encourage the disintegration of mother-father families."

Maryland Court Orders Closure of Chabad Center

A Montgomery County, Maryland state trial judge last week ordered the Chabad Israeli Center in Rockville (MD) to close down for violating a court order that only allowed it to operate Friday evenings and Saturday mornings for Sabbath services. Yesterday The Gazette (suburban Maryland) reported that in fact meetings were held there at other times and a few girls stayed at the residence for a few nights.  The court order limiting the Center's operations came after the Center was cited for violating the city's fire prevention and building codes. The Sabbath operations were conditioned on there being a special fire watch system in place, and attendance was to be limited to 25. A neighborhood committee has been monitoring the Center to see if it complied. The committee's activities have disrupted the lives of the rabbi's family. [Thanks to Steven H. Sholk for the lead.]

Pakistan Court Hears Arguments On Permanently Banning Facebook Over Blasphemous Pages

Pakistan's The News reports today on proceedings in the Lahore High Court seeking a permanent ban on Facebook for again displaying blasphemous material. A temporary ban was placed on the site in May because of a page promoting "Everybody Draw Muhammad" day. (See prior posting.) Now another page is promoting "Everybody Burn Quran" day. It is also claimed that Facebook carried blasphemous caricatures of the Kaaba, Islam's holy site in Mecca. The court gave Telecom Wireless three weeks to inform it of the steps it has taken to make blasphemous material unavailable in the country. In arguing for the ban, the petitioner contended that the U.N. Covenant on Civil and Political Rights requires every country to pass legislation to ban religious hatred, and cited the U.N. Human Rights Commission's resolution on Combatting Defamation of Religions.(See prior posting.)