Australian Judge Says Witness Cannot Wear Niqab

In a widely followed case in Perth, Australia (see prior posting), a District Court judge has ruled that a female witness may not testify wearing a niqab. However the court will consult with the woman's attorneys about other ways to accommodate her concerns about modesty. The defendant in the case, the former director of the Muslim Ladies College, is charged with stealing public funds by artificially inflating the number of students at his school.  He argued that the jury needs to be able to see the face of the witness, identified only as Tasneem, to assess her credibility. WA Today reports today that after the decision, Tasneem issued a lengthy statement which read in part:

I appreciate my request to wear my niqab in court has stirred much public debate, however, I would emphasise that this was not a demand, I merely asked to dress as I normally would in front of people I do not know.....  Like many Australians I believe in God and for me wearing the niqab serves as a constant reminder that I am accountable for my actions. I respect that other women who share my religion do not share this particular belief and that interpretations surrounding Islamic dress standards do differ. Therefore I understand this can be confusing for non-Muslims as they witness varying degrees of cover and I accept the full cover I choose to wear can be confronting to some.... I regret that this case has ignited the debate as to whether the burqa should be banned in Australia. This would be a step backward for Australia and would only further widen the division between Muslim and non-Muslim Australians.

Maryland Farms Cater To Muslim Immigrants For Slaughter of Goats

Today's Washington Post reports on the booming business-- especially before Ramadan and other feasts-- of farmers in Maryland who sells goats to Muslim immigrants who want to slaughter them in accordance with their own Halal traditions. The federal Meat Inspection Act permits this, so long as the customer buys the animal alive and slaughters it without help from the farmer. Many customers buy a goat and instead of slaughtering it on the farm, take it home for slaughter in their bathtub or garage. However some new modern slaughter houses also cater to Muslims wishing to kill their own animals.

Federal Circuit Says "Church" Satus Under Internal Revenue Code Requires Regular Communal Worship

In Foundation of Human Understanding v. United States, (Fed. Cir., Aug. 16, 2010), the U.S. Court of Appeals for the Federal Circuit held that the Foundation of Human Understanding, while retaining its 501(c)(3) non-profit status, did not qualify as a "church" for purposes of Sec. 170(b)(1)(A)(i) of the Internal Revenue Code.  The court held that in order to meet the definition of a church, a religious organization must show that it has a body of believers who assemble regularly for communal worship. Seminars across the country do not satisfy this test. The Foundation's radio and Internet ministry also were not enough to meet the associational test: "The fact that all the listeners simultaneously received the Foundation’s message over the radio or the Internet does not mean that those members associated with each other and worshiped communally." Failure to meet the definition of a church can subject a non-profit organization to the private foundation rules of IRC Sec. 509. (See prior posting.) Yesterday's National Law Journal reported on the decision. [Thanks to Joel Sogol via Religionlaw for the lead.]

Bosnian Parliament To Consider Ban On Niqab

A release from the Islamic Human Rights Commission (IHRC) published yesterday in BikyaMasr reports that the Central Parliament in Bosnia is about to consider a bill to ban Muslim women from wearing the full face veil in public.  The proposed law, which would fine women 50 Euros for violations, bans clothing that prevents identification.  The bill was initially put forward by the Bosnian Serb party of Independent Social Democrats in April and had been scheduled for debate in July.  That debate was postponed to Sept. 1 when a veiled female human rights activist attended the July session of Parliament as an observer. Opponents are campaigning against the bill, using the slogan: "Our Niqab, Our Choice, Our Right." IHRC argues that the proposed ban violates the International Covenant on Civil and Political Rights.

Senate Follows House In Adopting Resolution On Religous Minorities In Iraq

The U.S. Commission on International Religious Freedom yesterday issued a release applauding the U.S. Senate's Aug. 5 adoption of S. Res. 322, expressing concern about the plight of religious minorities in Iraq. The House of Representatives adopted a similar resolution, H.Res. 944, last February.

Establishment Clause Challenge To Illinois Capital Appropriations Bill Fails

In Sherman v. Quinn, 2010 U.S. Dist. LEXIS 83313 (CD IL, Aug. 16, 2010), an Illinois federal district court has dismissed both facial and as-applied Establishment Clause challenges to Illinois 2009 capital appropriations bill.  Activist Rob Sherman had sought to enjoin appropriations to 176 groups. (See prior posting). After dismissing some of the claims on 11th Amendment grounds, the court held that plaintiff lacks taxpayer standing to mount a broad facial challenge to the legislature's appropriation of $2.23 billion for the governor to distribute to community-based human services providers. Plaintiff argued merely that the law might be administered unconstitutionally. The court rejected plaintiff's as-applied challenge to 176 specific line items because no funds have yet been expended. Finally the court rejected plaintiff's facial challenge to those line items, finding that they meet the Lemon test for secular purpose and effect and no excessive entanglement. The court concluded: "If, after the money in these provisions has been disbursed, Plaintiff discovers that something potentially unconstitutional is underfoot, he may raise an as-applied challenge to the provisions."

Dearborn, MI High School Football Coaches Accommodate Ramadan

At Dearborn, Michigan's Fordson High School, where 95% of the football team's players are Muslim, coach Walter Zaban has made some unusual changes to the practice schedule to accommodate the Ramadan fasting by his players. The Detroit News reported last week that most of last week's practices began at 11:00 p.m. so coaches and players could eat and drink and complete their meals about an hour before starting their practice. At Dearborn High School, where a smaller percentage of players are Muslim, practices have been rescheduled to run from 5:00 p.m. to 10:30 p.m. Some of the players say they do not fast on actual game days, and make that up by fasting extra days after the end of Ramadan.

Missouri Federal District Court Strikes Down MO Funeral Picketing Law

In Phelps-Roper v. Koster, (WD MO, Aug. 16, 2010), a Missouri federal district court ruled that Missouri's statutes barring protests near a funeral are unconstitutional. Missouri enacted two versions of the statute-- the narrower version to take effect if the broader version is declared unconstitutional. The court concluded that both versions violated the free speech rights of members of the Westboro Baptist Church who picket funerals of U.S. soldiers carrying signs opposing homosexuality and other conduct the picketers deem sinful. The court rejected the argument that all the signs carried by Westboro members are unprotected "fighting words." AT least some of the messages are entitled to First Amendment protection. The court concluded that the state law is not narrowly tailored to serve a significant governmental interest. The outcome in this case was signaled by a 2007 decision of the Eight Circuit in the same case holding that plaintiff was entitled to a preliminary injunction because she had demonstrated a fair chance of succeeding on the merits of her claim. (See prior posting.) AP reports on Monday's decision.

North Carolina Appeals Court Says Presbyterian College's Police Force Violates Establishment Clause

In State of North Carolina v. Yencer, (NC App., Aug. 17, 2010), the North Carolina Court of Appeals held that the campus police force at religiously-affiliated Davidson College is unconstitutional because it violates the Establishment Clause for the state to delegate discretionary police powers to a religious institution. The holding came in response to a motion by a defendant in an impaired driving case who sought to suppress evidence obtained by campus police officers.  In reaching its conclusion, the Court of Appeals indicated it felt bound by two earlier North Carolina Supreme Court decisions that had reached a similar result as to the police forces at Campbell University and Pfeiffer University. The court expressed doubt whether it would have reached the same conclusion regarding Presbyterian Church affiliated Davidson College if it were not bound by state Supreme Court precedent.  It cited U.S. Supreme Court cases upholding grants to church-affiliated colleges that are not pervasively sectarian.  The Court of Appeals encouraged the state Supreme Court to grant review to consider the case without the constraints of precedent faced by the court of appeals. North Carolina's Campus Police Act under which the Davidson College police force was certified was enacted by the legislature specifically to assure that colleges originally established by or affiliated with religious institutions could have police forces. Yesterday's Raleigh (NC)News & Observer reported on the court's decision.

Court Rejects Challenge By Donors and Diocese To Plans For Sale of Catholic High School

In Anderson v. Loretto High School, (CA App., Aug. 10, 2010), a California appellate court concluded that the Roman Catholic Bishop of Sacramento and seven donors to a $4.5 million capital campaign of a Catholic high school are  not entitled to a temporary restraining order or preliminary injunction to require the proceeds of the sale of the school to a private company to be held in escrow.  The Loretto Sisters who operated the school plan to use the proceeds of the sale to pay off debts and provide retirement benefits for members of their religious order.  The school closed because of declining enrollments several years after the capital improvements were made. Plaintiffs sued to require that a portion of the sale price of the school be devoted to the education of women of high school age attending Catholic school in Sacramento. The court concluded that plaintiffs had not shown they were likely to succeed on the merits of their claims under the California non-profit corporation law. There was no showing that donors had intended their contributions to be restricted beyond their initial application to capital improvements of the school.  There was no improper diversion of those contributions. Today's California Catholic Daily reports on the decision and gives additional background.

Christian Student Disrupts Muslim Worship At Nigerian University

A Christian law student at Nigeria's University of Ibadan has created a campus furor by intruding on a Muslim worship service shouting that those in attendance should accept Jesus.  Next reports that the incident occurred last Friday, the first Friday of Ramadan, at a Jumat service led by the university's Chief Imam. The female law student, Seun Bunmi Adegunsoye, entered the service dressed like a Mulim and began shouting: "Except you accept Christ in your life, you are not safe.... Allah is not God; Jesus is Lord." The University's Vice Chancellor quickly intervened to calm tensions and promised a full investigation. However the president of the University's Muslim Student Society says the incident was an attempt to perpetuate a religious crisis in Nigeria. He objects to the release of Ms. Adegunsoye to her parents, saying: "The terrorist is let loose despite the heinous crime she had committed." Muslim students are planning a protest and are demanding that examinations, scheduled to begin at the Law School yesterday, be postponed until Ms. Adegunsoye is brought to justice.

Heated Debate on 10 Commandments Proposal At Marion, IL City Council

WSIL TV News today reports on a rather heated exchange last night at a meeting of the Marion, Illinois City Council.  A large crowd came to the meeting to support a proposal by Marion resident Ken Kessler who wants a Ten Commandments monument to be placed on the town's Tower Square. Chicago atheist and activist Rob Sherman, who has filed lawsuits on other church-state issues (see prior posting), showed up to oppose the idea. Responding to Sherman's opposition, Council member Jay Rix said: "You make me sick to my stomach." Supporting the Ten Commandments proposal, Mayor Bob Butler said: "In God's will this will be done." Opponent Sherman says that if the city tries to sell off a portion of the town square to make it private property before erecting the monument, he may attempt to outbid supporters so he could put up a monument supporting atheism. Sherman wants the Ten Commandments monument put up only on church or other private property.

Sen. Reid Opposes Ground Zero Mosque As Republicans Make It A Campaign Issue

Republicans are making a campaign issue out of President Obama's statement (see prior posting) that Muslims have the right to build a mosque and community center near New York's Ground Zero. The Los Angeles Times reports yesterday that Senate majority leader, Nevada Sen. Harry Reid, responded to demands of his Republican opponent, Sharron Angle, that he take a stand.  Yesterday he issued a statement through an aide reading:

The 1st Amendment protects freedom of religion. Sen. Reid respects that, but thinks that the mosque should be built someplace else.

By issuing the statement as an e-mail from an aide, Reid avoided giving Republicans video of his openly disagreeing with President Obama who has raised millions of dollars in campaign funds for Reid. Meanwhile, Fox News reports yesterday that Republicans are now targeting Republican Sen. Charles Schumer for not speaking out on the issue.

9th Circuit Stays Order Striking Down Proposition 8; Seeks Briefing On Standing

The U.S. 9th Circuit Court of Appeals today in Perry v. Schwarzenegger entered an order (full text) granting a stay during the appeal process of the district court's order that enjoined enforcement of California's Proposition 8. (See prior posting.) The court also ordered that the appeal be expedited and that it be scheduled for argument during the week of December 6, 2010.  Finally, it ordered appellants to include in their opening brief a discussion of why the appeal should not be dismissed for lack of standing.  The stay means that same-sex marriages will continue to be banned in California, at least until the federal appeals court rules in the case.  The San Francisco Chronicle, reporting on the decision, said that several counties had been planning to keep clerks' offices open late on Wednesday to handle the expected rush of same-sex couples seeking to be married. [Thanks to Empty Wheel for posting the text of the order.]

Israeli Court In Middle of Dispute Over Removal of Tombstones From Area Said To Contain No Graves

According to last Friday's New York Times, in Israel last week, a Jerusalem district court initially agreed with the city and the Israel Antiquities Authority that the Aqsa Foundation had placed tombstones on top of an area of the former Ma'man Allah Cemetery where there were no graves in an attempt to prevent construction by the Simon Wiesenthal Center of a Museum of Tolerance. When the project was announced, Muslim objections were voiced because the parking lot which was the site of the proposed building had nearly a century ago been part of a Muslim cemetery. (See prior posting.)  The Wiesenthal Center says there are no human remains in the part where it plans to build. With the consent of the city, the Aqsa Foundation has been restoring an adjacent area.  Apparently the Foundation brought 300 tombstones into the Wiesenthal Center construction area, outside the portion on which the Foundation was supposed to be working. Last Monday, with consent by the court, city authorities began to clear out those tombstones. A Muslim sheik tried to stop the work and was injured. The Foundation went back to court last Wednesday and on Thursday the court called on both sides to return with further evidence.

Tanzanian Court Dismisses Illegal Preaching Charges Against Two Evangelists

BosNewsLife reports that a court in Dar Es Salaam, Tanzania yesterday dismissed charges of "illegal preaching" against two Anglican evangelists who have been held since October 2009.  Apparently Muslims invited evangelists Eleutery Kobelo and Cecil Simbaulanga to engage in a religious debate in a neutral venue in Dar Es Salaam. When they arrived, however, security agents arrested them. Apparently no prosecution witnesses showed up in court to support the charges, so the case was closed.

New North Carolina Law Allows 2 Excused School Absences For Religious Holidays

Yesterday's Charlotte (NC) Observer reports on a new law signed last month by North Carolina's governor that requires public schools and colleges in the state to adopt rules giving students a minimum of two excused absences each academic year for religious observances required by the student's faith.  Session Law 2010-112 allows schools to require prior written notice of absences for religious reasons, and requires that students be given an opportunity to make up tests and other work missed due to an excused absence for a religious observance. Rep. Rick Glazier, who co-sponsored the bill, says: "It has to be a bona fide holiday; you don't get to just take the day off because you want to pray at home."

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).