Recent Articles of Interest

From SSRN:

• Toni M. Massaro, Christian Legal Society v. Martinez: Six Frames, (Arizona Legal Studies Discussion Paper No. 10-27, Aug. 12, 2010).
• Geoffrey P. Miller, Nomadism, Dependency, Slavery and Nationhood: Comparative Politics in the Book of Exodus, (NYU School of Law, Public Law Research Paper No. 10-49, Aug. 11, 2010).
• Geoffrey P. Miller, Leadership, Self-Governance and Nationhood in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-50, Aug. 11, 2010).
• Geoffrey P. Miller, Revelation and Legitimacy in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-52, Aug. 12, 2010).
• Charles J. Russo & William E. Thro, Preserving Orthodoxy on Secular Campuses: The Right of Student Religious Organizations to Exclude Non-Believers, (Education Law Reporter, Vol. 250, p. 497, January 2010).

Suit Challenges Library Meeting Room Rules

Last week, Ilene Vick, author of the book Personality Based Evangelism, filed a federal lawsuit against the Putnam County, Tennessee Library challenging its rules on use of its meeting rooms. The complaint (full text) in Vick v. Putnam County, (MD TN, filed 8/12/2010), alleges that plaintiff was denied use of the Library's meeting room to hold a small group discussion on the ideas in her book. Library rules an use of meeting rooms for "social, political, partisan or religious purposes." The lawsuit claims that the policy infringes plaintiff's free speech rights, as well as her due process and equal protection rights. It claims tat the policy is unconstitutionally vague and overbroad, and discriminates on the basis of the content of speech and the viewpoint of the speaker. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Nelson v. Runnels, 2010 U.S. Dist. LEXIS 82080 (ED CA, Aug. 11, 2010), a California federal magistrate judge recommended denial of defendants' motion for summary judgment, concluding that genuine issues of material fact remain as to an inmate's First Amendment claims that he was denied the right to attend religious services on two occasions in retaliation for his filing administrative grievances. Prison authorities say he did not sign up to attend as required by prison regulations.

In Myers v. Scribner, 2010 U.S. Dist. LEXIS 81962 (SD CA, Aug. 10, 2010), a California federal district court adopted recommendations of a magistrate (2010 U.S. Dist. LEXIS 81961, May 24, 2010) and dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not permitted to organize a Christian-based celebratory feast marking the Last Supper to be attended by 800 inmates.

In Sturdevant v. Holder, 2010 U.S. Dist. LEXIS 81184 (ND WV, Aug. 10, 2010), a West Virginia federal court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 81185, Jan. 10, 2010) and dismissed on the merits a Native American inmate's claim that he was hindered in his religious practice of weekly sweat lodge ceremonies, pipe ceremonies, and yearly pow-wow feasts.

In Taylor v. Halladay, 2010 U.S. Dist. LEXIS 81060 (ND NY, Aug. 9, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 81193, July 1,2010)dismissing a prisoner's case. However the magistrate had recommended that plaintiff be permitted to file an amended complaint asserting that his First Amendment rights were violated when because of his administrative confinement in a special housing unit he was unable to attend religious programming.

In Gabriel v. Gusman, 2010 U.S. Dist. LEXIS 80332 (ED LA, Aug. 10, 2010), a Louisiana federal district court adopted a magistrate' recommendations (2010 U.S. Dist. LEXIS 80264, July 16, 2010), and dismissed a Baptist inmate's complaint that the prison offered no religious programs or communal services. Plaintiff has a Bible and is permitted to practice his religion on his own.

In Lewis v. Ryan, 2010 U.S. Dist. LEXIS 80624 (D AZ, July 9, 2010), an Arizona federal district court rejected an inmate's free exercise complaint that he was not allowed to use his retention funds to make a contribution to a charity of his choice. He was allowed to make some donations, and ones of his choice from his spendable account funds.

In Jordan v. Caruso, 2010 U.S. Dist. LEXIS 80487 (WD MI, Aug. 10, 2010), a Michigan federal district court rejected a Jewish prisoner's challenge to the prison's group worship policy that allowed group worship only if at least five prisoners request it and which denied him participation by teleconference in a service elsewhere. However the court permitted plaintiff to move ahead with his challenge to the requirement he work on the Sabbath and rules that mandate he wait 90 days before requesting a new work schedule even for religious reasons. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 80486, Jan. 28, 2010).

Church Wins In Its RLUIPA and Constitutional Challenges To Zoning Denial

In a lengthy opinion, a New York federal district court in Fortress Bible Church v. Feiner, 2010 U.S. Dist. LEXIS 82043 (SDNY, Aug. 11, 2010), held that the Town of Greenburgh, New York violated RLUIPA's "substantial burden" provisions, as well as the free exercise and equal protection provisions of the U.S. and New York constitutions, in denying an application by Fortress Bible Church to build a new facility to house the church and its school, the Fortress Christian Academy. After making 622 findings of fact, the court found "overwhelming evidence of ... intentional delay, hostility and bias toward the Church's application...." The court ordered town officials to approve the Church's site plan, to grant zoning variances and waivers, and to issue a building permit.

Biblical References In School Board Member's Speech Did Not Violate Establishment Clause

In Rodriguez v. Jurupa Unified School District, (CA App., Aug. 10, 2010), a California state appellate court dismissed an establishment clause claim brought by a member of a school board who was censured by the board for sexual harassment. Plaintiff had claimed that comments by the school board president made when the censure motion was being considered-- comments drawing an analogy to events in the Biblical Garden of Eden-- violated the Establishment Clauses of the state and federal constitutions. The court disagreed, holding that the comments had a secular purpose and effect and did not unduly entangle the government with religion.

Court Orders Mets To Allow Kosher Vendor To Operate On Sabbath While Suit Is Pending

A New York federal district judge on Friday ordered the New York Mets to allow Kosher Sports to sell kosher hot dogs and other items at Friday night and Saturday afternoon games at Citi Field while a lawsuit is pending.  Yesterday's New York Daily News reports on developments in the damage suit brought by the food vendor that says it lost a half million dollars when it was banned from operating on those days. The Mets say the food cannot be kosher if the vendor sells it on the Sabbath. Kosher Sports says it sells food to non-Jews as well under its 10 year contract with the Mets.  According to today's New York Post, the Mets claim any damages were caused by Aramark, another vendor that refused to supply Kosher Sports with carts on Friday nights and Saturdays. In issuing the temporary order, federal district judge Jack Weinstein said he could not get involved in a dispute over rabbinical law. (See prior related posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Consent Decree Filed In DOJ's Suit Against Restaurant Charging Falun Gong Discrimination

The U.S. Department of Justice announced Thursday that it had filed a consent decree in its religious discrimination action against a Flushing, NY restaurant that ejected ten patrons on three separate occasions in 2008 because they were wearing shirts displaying beliefs of the Falun Gong movement. Lucky Joy Restaurant, Inc. and its president Xiao Rong admit that they refused service to Falun Gong practitioners.  The consent decree, which must still receive court approval, enjoins defendants from discriminating on the basis of religion, religious expression, religious dress or association with Falun Gong. Restaurant staff will also attend training on the legal requirements of non-discrimination in public accommodations, and a non-discrimination policy will be posted in the restaurant in English and Chinese. (See prior related posting.) In China, the government began a campaign in 1999 to ban Falun Gong. (Background).

President Hosts Iftar At White House; Supports Right To Build Mosque Near Ground Zero

Last night, President Barack Obama hosted an Iftar-- a meal to break the Ramadan fast-- at the White House.  In his remarks (full text), the President focused on the importance of faith and religious free exercise in America, and came out in support of the right of Muslim groups to build a controversial mosque and community center near Ground Zero in New York City.  Here are some excerpts from his remarks:

Here at the White House, we have a tradition of hosting iftars that goes back several years, just as we host Christmas parties and seders and Diwali celebrations. And these events celebrate the role of faith in the lives of the American people. They remind us of the basic truth that we are all children of God, and we all draw strength and a sense of purpose from our beliefs.

These events are also an affirmation of who we are as Americans. Our Founders understood that the best way to honor the place of faith in the lives of our people was to protect their freedom to practice religion.....  Indeed, over the course of our history, religion has flourished within our borders precisely because Americans have had the right to worship as they choose -– including the right to believe in no religion at all..... Now, that's not to say that religion is without controversy. Recently, attention has been focused on the construction of mosques in certain communities -– particularly New York.  Now, we must all recognize and respect the sensitivities surrounding the development of Lower Manhattan....

But let me be clear. As a citizen, and as President, I believe that Muslims have the same right to practice their religion as everyone else in this country. (Applause.) And that includes the right to build a place of worship and a community center on private property in Lower Manhattan, in accordance with local laws and ordinances. This is America. And our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country and that they will not be treated differently by their government is essential to who we are. The writ of the Founders must endure.

The New York Times reports that leading Republicans quickly criticized Obama's statement and earlier today the President "recalibrated" his remarks, saying:

I was not commenting, and I will not comment, on the wisdom of making the decision to put a mosque there. I was commenting very specifically on the right people have that dates back to our founding. That’s what our country is about.

Clergy Abuse Victims Testify In Wilmington Diocese Bankruptcy Proceedings

In what appears to be a first, seven victims of clergy sexual abuse were called to testify in the bankruptcy proceedings for the Catholic Diocese of Wilmington, Delaware.  Today's Delaware News Journal reports that the testimony came as Bankruptcy Judge Christopher Sontchi is considering whether to lift a stay on lawsuits against the Diocese. Eighty-one civil lawsuits have been filed, and some are on track to go to trial in state court this fall. All seven victims who testified said they wanted to move ahead with litigation and did not trust the Diocese to negotiate in good faith in settlement talks.

Bulgaria Hopes Religious Archeological Find Will Draw Tourists

Today's Wall Street Journal reports that the Bulgarian government is hoping that tourism receives a boost after an archaeological discovery on an island off Bulgaria's Black Sea coast. Archaeologists and clerics say they have found bones belonging to St. John the Baptist, who is particularly revered by Orthodox Christians. The remains, including a skull fragment and a tooth, were discovered during excavation of a 4th century monastery on St. Ivan Island. They were buried next to a small urn inscribed with St. John's name and birth date. Bulgaria's Orthodox Church says they are authentic. The government is spending millions of dollars on items such as a new parking lot and new signs in preparation for a flood of tourists. However a number of countries claim to have bones or body parts of St. John.

British Tribunal Says Council Can Fire Housing Officer For Religious Barrage of Client

In Britain, an employment tribunal has ruled that the London borough of Wandsworth was justified in firing a housing officer who gave a client a half hour lecture telling her that she was ill because she did not have God or faith in her life. Solicitors Journal and BBC News this week report that the Christian employee, Duke Amachree, appealed his dismissal by the Wandsworth Borough Council claiming religious discrimination. The tribunal ruled, however, that Amachree was not treated any differently than a non-Christian having a discussion about non-religious healing would have been. The victim who complained said: "I have nothing against anyone having a religion but I do not expect this barrage at a housing interview."

Youth Pastor Can Proselytize In California Mall

In Snatchco v. Westfield LLC, (CA Ct. App., Aug. 11, 2010), a California appellate court upheld the right of a youth pastor to approach shopping mall patrons to talk with them about religion. Unlike the federal constitution, free speech protections under California's state constitution extend to activity at privately owned shopping malls. The court held that regulations of Westfield's Galleria mall in Roseville are content-based rules that do not withstand strict scrutiny. They prohibit expressive activity not sponsored by or related to the mall or stores in the mall, unless they have been approved in advance by the mall. The court concluded that: "providing a 'stress-free shopping atmosphere' for patrons is not a compelling interest compared to the free speech rights of other individuals at the mall." It found the mall rules to be vague and overbroad and not narrowly tailored even for purposes of intermediate scrutiny.

Suit On Behalf of Monks Challenges Louisiana's Regulation of Funeral Industry

The Institute for Justice announced that yesterday it filed a lawsuit in federal district court in Louisiana on behalf of Saint Joseph Abbey of St. Benedict, Louisiana, to vindicate the right of the monks to make and sell their plain wooden caskets. When the monks opened St. Joseph's Woodworks in 2007, they were immediately warned by the State Board of Embalmers and Funeral Directors that they faced possible fines, jail time and a lawsuit for an injunction. Louisiana Code, RS 37:831(35) defines the business of funeral directing as including any retail sale of caskets. According to Institute for Justice:

Under Louisiana law, it is a crime for anyone but a licensed funeral director to sell “funeral merchandise,” which includes caskets. To sell caskets legally, the monks would have to apprentice at a licensed funeral home for one year, learn unnecessary skills, and pass a funeral industry test. They would also have to convert their monastery into a “funeral establishment” by, among other things, installing equipment for embalming human remains.

Viewing this as an economic liberty issue, Institute for Justice claims that the rules support a cartel of licensed funeral directors who have lobbied the legislature to obtain a lucrative monopoly. Andrew Breitbart also blogs on the case.

Russian Dairy Will Enforce Religious Rules On Employees-- Church Weddings and No Abortions

In Russia, the head of a prominent dairy company says he will fire any employee who refuses to be married in Russian Orthodox Church ceremonies, and will also fire any female employee who has had an abortion.  Reuters, in a report in today's Toronto Sun, quotes the president of Russkoye Moloko, Vasily Boiko-Veliky, who says his company-- with 6000 employees-- was created to promote the Orthodox revival in Russia. The company's milk products, sold in many Moscow supermarkets, are promoted as "ecologically safe." Boiko-Veliky says current married employees have until Oct. 14 to have a Church ceremony, while new employees who are married will have three months to get a Church wedding. As for women who have had abortions, Boiko-Veliky says: "We don’t want to work with killers." Critics say the company's rules violate Russia's constitution and labor laws.

RFRA Defense To Forest Service Permit Requirements For Large Groups Rejected

In a case decided several weeks ago, but which has just become available on LEXIS, a Colorado federal district court rejected a defense under the Religious Freedom Restoration Act to charges of violating U.S. Forest Service regulations requiring a permit for groups of more than 75 individuals on Forest Service land.  United States v. Sowka, 2010 U.S. Dist. LEXIS 80735 (D CO, June 23, 2010), involved conviction and a fine imposed on a member of the Rainbow Family of Living Light. The group gathers annually in undeveloped areas of National Forests to hold a prayer circle for peace and healing of the earth, and to discuss environmental and other issues. Gatherings held around July 4 typically attract thousands. This case grew out of the 2006 gathering at Routt National Forest in Colorado with some 10,000 in attendance. The court rejected defendant's argument that obtaining a permit violates Rainbow Family's religious belief that no individual can speak for the group as a whole. The court concluded that the regulations do not impose a substantial burden on defendant's exercise of religion, and that even if they do, the regulations are the least restrictive means of furthering the government's compelling interest in protecting resources as well as public health and safety. (See prior related posting.)

Suit Seeks Return of State Tourism Grant To Restore Bald Knob Cross

Activist Rob Sherman yesterday filed a lawsuit in an Illinois federal district court seeking to force Friends of the Cross to return to the Illinois Department of Commerce and Economic Opportunity a $20,000 grant it received to replace and install the exterior panels on the 11-foot high Bald Knob Cross in the Ozarks in southern Illinois.(Posting on Sherman's website; AP report). The complaint (full text) in Sherman v. State of Illinois, (CD IL, filed 8/12/2010), contends that the grant violates the federal Establishment Clause as well as Illinois Constitution's Art. I, Sec. 3 (religious freedom) and Art. X, Sec. 3 (no public funds for sectarian purposes). The grant was awarded as part of the state's efforts to promote tourism. (See prior posting).

Court Denies Stay of Prop 8 Decision But Delays Order 6-Days To Allow Appeal

A California federal district court today rejected a motion for a stay pending completion of an appeal of the court's order enjoining enforcement of California's Proposition 8 banning same-sex marriage. (See prior posting.) However the district court did grant a stay until 5:00 p.m. August 18 to permit an appeal on the issue of a stay to the 9th Circuit. In Perry v. Schwarzenegger, (ND CA, Aug. 12, 2010), the district court concluded that none of four factors normally considered in granting a stay weigh in favor of proponents. Those factors are:

(1) whether proponents have made a strong showing that they are likely to succeed on the merits; (2) whether proponents will be irreparably injured absent a stay; (3) whether the stay will substantially injure other interested parties; and (4) whether the stay is in the public interest. 

The city and county of San Francisco, California's governor and its attorney general all opposed a stay. Only the intervenors, who organized the campaign in support of Proposition 8, favored a stay. Focusing on the likelihood of success, Judge Vaughn Walker wrote:

Because proponents filed their motion to stay before the court issued its findings of fact and conclusions of law, proponents do not in their memorandum discuss the likelihood of their success with reference to the court’s conclusions. Neither do proponents discuss whether the court of appeals would have jurisdiction to reach the merits of their appeal absent an appeal by a state defendant.... If, however, no state defendant appeals, proponents will need to show standing in the court of appeals.... Proponents’ intervention in the district court does not provide them with standing to appeal.... The Supreme Court has expressed “grave doubts” whether initiative proponents have independent Article III standing to defend the constitutionality of the initiative. Arizonans for Official English [v. Arizona], 520 US at 67.

The Los Angeles Times reports on the decision and says that the Proponents will appeal immediately to the 9th Circuit.

Russia Refuses To Recognize US Court Order On Return of Jewish Book Collection

According to Interfax today, Russia's Ministry of Foreign Affairs is refusing to comply with an order issued last month by a United Stated federal court requiring the Russian government return a library and archive of Jewish books and manuscripts to the Chabad movement in the United States. (See prior posting.) The Ministry's statement said in part:

The Schneerson library has never belonged to Chabad. It never left Russia and was nationalized because there were no legal heirs in the Schneerson family.... On the contrary, it is American Hasids who must return to Russia seven books from the same collection that they lent from the Russian State Library in 1994 through the U.S. Congress library for two months and have withheld illegally for 16 years now.... Unfortunately, the U.S. judge made an unlawful decision, which cannot be enforced in Russia.... There is no agreement between Russia and the U.S. on mutual recognition and enforcement of civil judgments.

The Ministry's statement said that Russian courts are open to the American Hasidic group to assert its claims.

Imam Leading Efforts To Build Ground Zero Mosque Will Be State Department Speaker In Middle East

At Tuesday's State Department daily press briefing (full text), Assistant Secretary Philip Crowley discussed the travel of Imam Feisal Abdul Rauf, leader of the group planning to build the controversial mosque near Ground Zero in New York City, as part of the State Department's International Information Program.  On the government-sponsored trip, Feisal will visit Qatar, Bahrain, and the UAE to discuss Muslim life and religious tolerance in the United States. The Department sends some 1200 speakers a year overseas on all sorts of topics. Last year 52 of the programs focused on religious tolerance in the U.S. This is Imam Feisal's third trip under the program since 2007. Crowley said that Feisal's "work on tolerance and religious diversity is well-known and he brings a moderate perspective to foreign audiences on what it’s like to be a practicing Muslim in the United States." The State Department bans its speakers from engaging in fund raising on State Department trips. Crowley insisted that the Administration has not taken a position on the proposed Islamic Center near Ground Zero, but it did post the remarks on religious tolerance delivered by Mayor Michael Bloomberg (see prior posting) on a State Department website aimed at foreign audiences. (See prior posting.)

White House Issues Greetings On Start of Ramadan

President Obama yesterday issued a statement (full text) extending best wishes to Muslims in the United States and around the world on the occasion of the start of Ramadan. He said that Ramadan rituals "remind us of the principles that we hold in common, and Islam’s role in advancing justice, progress, tolerance, and the dignity of all human beings. Ramadan is a celebration of a faith known for great diversity and racial equality. And here in the United States, Ramadan is a reminder that Islam has always been part of America and that American Muslims have made extraordinary contributions to our country."  The President said he would host an Iftar dinner celebrating Ramadan later this week at the White House.