Court Dismisses Complaint Over Homeowners' Association Order To Remove Cross

In Weatherspoon v. Provincetowne Master Owners Association, 2010 U.S. Dist. LEXIS 92187 (D CO, Sept. 2, 2010), a Colorado federal district court dismissed on collateral estoppel grounds a lawsuit charging, among other things, that a homeowners' association violated plaintiff's  free exercise rights when it enforced a covenant against her, requiring her to take down an 8-foot tall cross she had erected in her yard. A prior state court proceeding determined that in placing the cross in her yard without prior approval, the homeowner violated a religiously-neutral neighborhood covenant of general applicability.

Court Refuses To Lift Preliminary Injunction Against Stem Cell Funding Guidelines

D.C. federal district judge Royce Lamberth yesterday issued an order in Sherley v. Sebelius (full text) refusing to lift, pending appeal, his preliminary injunction against applying the Department of Health and Human Services' guidelines expanding permitted federal funding of human embryonic stem cell research. (See prior posting.)  Observing that "defendants are incorrect about much of their 'parade of horribles' that will supposedly result from the Court's preliminary injunction," the Order indicates that the preliminary injunction does not affect previously funded projects and does not deal with whether NIH could return to the narrower Bush administration guidelines. AFP reports on the decision.

Suit Charges Dearborn High School Principal With Discrimination Against Non-Muslims

A discrimination lawsuit was filed late last month by two Christian high school teachers against Imad Fadlallah, the now-retired principal of Dearborn, Michigan's Fordson High School, and against the school district. The complaint (full text) in Purcell v. Fadlallah, (ED MI, filed 8/27/2010), alleges that Fadlallah used his position as principal to promote Islam and to systematically weed out teachers, coaches and employees who are not Muslim or Arab. The complaint also makes repeated references to ties between Fadlallah's family and the terrorist group, Hezbollah. Among the incidents of harassment against non-Muslim teachers described in the complaint were scheduling classes for one plaintiff, a science and math teacher who was a diabetic, at the times he needed to eat and administer insulin. It charges that Fadlallah harassed the second plaintiff, a business and marketing teacher, by, among other things, assigning her to teach two classes that met at the same time at opposite ends of the school building. The 34-page complaint alleges numerous other incidents of harassment and discrimination in violation of the First and 14th Amendments and of various statutory and state constitutional protections. The lawyer who filed the suit on behalf of the teachers has issued a press release summarizing plaintiff's claims.

Secretary of State Clinton Hosts State Department Iftar

Secretary of State Hillary Rodham Clinton last night hosted the State Department's annual Iftar (Ramadan break fast). In her remarks (full text), she said in part:

Ramadan teaches and reinforces values that are honored by millions and tens and hundreds of millions of people from other faiths and beliefs. So tonight, while we celebrate together, let us consider how we can build broader and deeper bonds of mutual understanding, mutual respect and cooperation among people of all faiths in the year to come...

We sit down together for this meal on a day when the news is carrying reports that a pastor down in Gainesville, Florida plans to burn the Holy Qu’ran on September 11th. I am heartened by the clear, unequivocal condemnation of this disrespectful, disgraceful act that has come from American religious leaders of all faiths, from evangelical Christians to Jewish rabbis, as well as secular U.S. leaders and opinion-makers. Our commitment to religious tolerance goes back to the very beginning of our nation. Many of you know that in 1790, George Washington wrote to a synagogue in Newport, Rhode Island, that this country will give “to bigotry no sanction, to persecution no assistance.”

Among those attending the Iftar were 70 young American Muslim leaders. The Hill reported last week on the State Department's plans for yesterday's event.  

Court Dismisses Christian Pastors' Challenge To Hate Crimes Law

In Glenn v. Holder, (ED MI, Sept. 7, 2010), a Michigan federal district court dismissed on standing and ripeness grounds a challenge to the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act that had been brought by several Christian pastors. Plaintiffs claim that the law interferes with their right to express opposition to homosexuals and homosexual behavior.  They allege that the Act is vague and overbroad, and will chill individuals from expressing their views that "homosexual orientation is morally wrong."  The court however did not reach the merits of those claims, finding instead that plaintiffs had failed to demonstrate that they faced a credible threat of prosecution under the Act.  No case or controversy exists because plaintiffs failed to allege that they intend to willfully cause bodily injury to anyone. The court also concluded that plaintiffs' claims are not ripe. They merely present hypothetical situations that plaintiffs believe will be investigated or prosecuted. Bay City (MI) Times reports on the decision.

Religion Becoming An Issue In Hawaii's Democratic Gubernatorial Primary

Religion is beginning to play an important role in Hawaii's Sept. 18 gubernatorial primary election. KITV News yesterday reported on ads and flyers by a group calling itself Island Values. Supporting Democratic candidate Mufi Hannemann over his opponent in the Democratic primary, Neil Abercrombie, flyers charge Abercrombie with mocking the faith-based community.  At issue is Abercrombie's support for same-sex civil unions. Gov. Linda Lingle vetoed a civil union bill this summer. (See prior posting.) An Island Values ad urges Christians who would otherwise vote in the Republican primary to instead take a Democratic ballot to vote for Hannemann.  Their radio ad says: "There are acceptable and unacceptable candidates. Neil Abercrombie is unacceptable. He declares no religious affiliation." Abercrombie says he was confirmed as an Episcopalian.

Tajikistan Continues Restrictions on Religion While Tajik Muslims Prefer Religious Dispute Settlement

Forum 18 last week reported that the government of Tajikistan is imposing ever tighter controls on religious activity in the country whose majority religion is Islam.  Invoking the ban on political organizations establishing mosques, the government has ordered the Islamic Revival Party to stop using its offices for prayers-- though the ban will not be enforced until after Ramadan. The country's Religious a\Affairs Committee has reaffirmed the 2009 ban on children taking part in the hajj pilgrimage to Mecca. Just before the beginning of Ramadan, authorities in the town of Panjakent banned the broadcast of Muslim prayers over loud speakers. Also a case against 17 Jehovah's Witnesses remains open.

Meanwhile, Radio Free Europe today reports that Muslims in Tajikistan are increasingly resorting to local mullahs who apply Sharia law to resolve disputes, particularly issues growing out of divorces. Individuals find this route faster and cheaper than state courts, and prefer the personalized approach of mullahs.  Also some state courts officials are corrupt, requesting bribes for specific decisions.

Petraeus Says Florida Church's "Burn a Qur'an Day" Could Endanger U.S. Efforts In Afghanistan

According to a report by ABC News yesterday, the plans of a pastor in Florida to hold a "Burn a Qur'an Day" at his church on the anniversary of 9-11 is now seen as a danger to U.S. troops in Afghanistan. (See prior posting.)  Some 500 people in downtown Kabul yesterday protested the plans of of Pastor Terry Jones of the Dove World Outreach Center in Gainesville, Florida. Gen. David Petraeus, the top U.S. commander in Afghanistan, said he is outraged by the Florida church's plans, and predicted that it could endanger troops and the overall U.S. effort in Afghanistan.

USPS Issues Postage Stamp Honoring Mother Teresa

On Sunday, the U.S. Postal Service issued a postage stamp honoring Mother Teresa.  Announcing the stamp last week, USPS said:

The U.S. Postal Service will pay tribute to Mother Teresa, who received the Nobel Peace Prize in 1979 for her humanitarian work. Noted for her compassion toward the poor and suffering, Mother Teresa, a diminutive Roman Catholic nun and honorary U.S. citizen, served the sick and destitute of India and the world for nearly 50 years.

According to a press release on Sunday, the stamp was issued during a special ceremony at the Basilica of the National Shrine of the Immaculate Conception in Washington, DC.  Postmaster General John Potter spoke at the ceremony. He was joined by a number of Catholic clergy, including Archbishop Pietro Sambi, apostolic nuncio to the United States. [Thanks to Pew Sitter for the lead.]

American Muslims Distressed Over Hostile Attitudes

Today's New York Times carries a front page article titled American Muslims Ask, Will We Even Belong?.  It focuses on Muslim distress over the hostile reactions triggered by the proposed Muslim cultural center near Ground Zero. Many Muslims interviewed are frightened  "to learn that the suspicion and even hatred of Muslims is so widespread."  According to reporter Laurie Goodstein, American Muslims:

liken their situation to that of other scapegoats in American history: Irish Roman Catholics before the nativist riots in the 1800s, the Japanese before they were put in internment camps during World War II. Muslims sit in their living rooms, aghast as pundits assert over and over that Islam is not a religion at all but a political cult, that Muslims cannot be good Americans and that mosques are fronts for extremist jihadis.

Eboo Patel, founder of Chicago's Interfaith Youth Core, says:

After Sept. 11, we had a Republican president who had the confidence and trust of red America, who went to a mosque and said, "Islam means peace," and who said "Muslims are our neighbors and friends," and who distinguished between terrorism and Islam. Now, unlike Mr. Bush then, the politicians with sway in red state America are the ones whipping up fear and hatred of Muslims. There is simply the desire to paint an entire religion as the enemy.

Israeli Politicians Debate Traditional Switch Off Daylight Savings Time For Yom Kippur

In Israel, members of the Knesset this week were engaged in debates over whether to continue the traditional practice in Israel of moving off daylight savings time beginning during the ten days between Rosh Hashanah and Yom Kippur. The motivation for the practice is to obtain an earlier sundown and thus end the Yom Kippur fast at an earlier hour-- though the move does not shorten the total number of hours in the day-long fast which would also begin earlier with the change. This year the Jewish High Holidays come particularly early. Yom Kippur falls on Sept. 18.  Business leaders say an early move to Standard Time costs the economy NIS 10M ($2.6M U.S.) and increases road accidents because of increased driving time in the dark. Israel is on Daylight Savings Time each year several weeks less than are the U.S. and Europe. Last week, some 100,000 Israelis signed an online petition urging the public to ignore the switch back to Standard Time. Interior Minister Eli Yishai suggested a compromise-- switch to Standard Time for Yom Kippur, and then go back to Daylight Savings Time the next week.

Department of Labor Blog Honors Ties Between Religion and Labor Movement

Today is Labor Day in the United States. On the official blog of the U.S. Department of Labor, Phil Tom, Director for DOL's Center for Faith-Based & Neighborhood Partnerships, recently posted his thoughts on Labor Day in a piece titled Keeping Faith In Labor. He writes in part:

Labor Day weekend is a time when faith communities and the labor movement celebrate their common bonds of equality, justice, dignity, and fair treatment for all workers. In fact, in 1909, the American Federation of Labor adopted the Sunday before Labor Day as "Labor Sunday" to honor the spirituality of the labor movement.

USA Today's Faith and Reason blog has more on Labor and religion.

Border Guard Survives Dismissal Motion In His Religious Discrimination Suit

In Israel v. Napolitano, (ND NY, Aug. 24, 2010), a New York federal district court refused to grant summary judgment to the Department of Homeland Security in a religious discrimination suit brought against it by a Jewish Customs and Border Protection Guard. Plaintiff Brian Israel alleged that over the course of his employment he was subjected to repeated anti-Semitic harassment by co-workers and supervisors, including swastikas being placed on his work locker. In 2007, Israel was fired, purportedly for his conduct following three separate altercations with the public.The court concluded, however, that "there is sufficient evidence from which a reasonable fact finder could conclude that Israel's removal resulted from religious discrimination." [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Patrick Parkinson, Kim Oates & Amanda Jayakody, Breaking the Long Silence: Reports of Child Sexual Abuse in the Anglican Church of Australia, (Ecclesiology, Vol. 6, No. 2, pp. 183-200, 2010).
• Robert A. Kahn, Tragedy, Farce or Legal Mobilization? The Danish Cartoons in Court in France and Canada, (U of St. Thomas Legal Studies Research Paper No. 10-21, 2010).
• Peter G. Danchin, Islam in the Secular Nomos of the European Court of Human Rights, University of Maryland Legal Studies Research Paper No. 2010-41, Sept. 1, 2010).
• Geoffrey P. Miller, Sovereignty and Conquest in the Hebrew Bible, NYU School of Law, Public Law Research Paper No. 10-61, Sept. 3, 2010).
• Wilbren Van der Burg, Legislation on Human Embryos: From Status Theories to Value Theories, (Erasmus Working Paper Series on Jurisprudence and Socio-legal Studies No. 10-03, Aug. 30, 2010).
• Joshua Kleinfeld, The Concept of Evil in American and German Criminal Punishment, (August 25, 2010).

From SmartCILP:

• Melissa Lewis, The Regulation of Kosher Slaughter in the United States: How to Supplement Religious Law So As to Ensure the Humane Treatment of Animals, 16 Animal Law Review 259-285 (2010).
• Alexandra Lang Susman, Strings Attached: An Analysis of the Eruv Under the Religion Clauses of the First Amendment and the Religious Land Use and Institutionalized Persons Act, 9 University of Maryland Law Journal of Race, Religion, Gender & Class 93-134 (2009).

Recent Prisoner Free Exercise Cases

In Fairwell v. Cates, 2010 U.S. Dist. LEXIS 88856 (ED CA, Aug. 2, 2010), a California federal magistrate judge dismissed an inmate's free exercise and RLUIPA complaint with leave to amend and refile. Plaintiff set out numerous allegations of interference with his practice of Asatru/ Odinism, as well as an allegation of retaliation. However the complaint failed to adequately link particular defendants to specific alleged violations.

In Johnson v. Schoen, 2010 U.S. Dist. LEXIS 90053 (SD IL, Aug. 31, 2010), an Illinois federal district court held that a prisoner's allegation that a correctional officer refused to give him a Bible during his visit with his mother was insufficient to support a free exercise claim.

In Williams v. Beard, 2010 U.S. Dist. LEXIS 89492 (MD PA, Aug. 30, 2010), a Pennsylvania federal district court rejected a Muslim inmate's free exercise and RLUIPA challenges to disciplinary action that led to a loss of his kitchen job for offering prayers in an unauthorized area and failing to obey staff orders to stop.


In Walden v. Smith, 2010 U.S. Dist. LEXIS 90084 (ND IA, Aug. 30, 2010), an Iowa federal district court dismissed on qualified immunity grounds a Muslim prisoner's complaint that his free exercise rights were violated when, because of his security status, he was not permitted to participate in communal daily prayers during much of Ramadan in 2007. During those times, he was restricted to one communal prayer service per week and thus attended the Friday Jum'ah prayers.


In Kuperman v. Wrenn, (D NH, Aug. 27, 2010), a New Hampshire federal district court rejected challenges by an Orthodox Jewish prisoner to rules that limited the length of beards that can be grown for religious reasons to 1/4 inch. The court found that plaintiff had not sustained his free exercise, equal protection or RLUIPA claims.

In Grayson v. Schuler, 2010 U.S. Dist. LEXIS 89239 (SD IL, Aug. 30, 2010), an Illinois federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 89240, July 20, 2010) and granted summary judgment for defendant on qualified immunity grounds in connection with a claim by an inmate who was a member of the African Hebrew Israelite faith. Plaintiff argued that the prison's grooming policy violated his free exercise rights because he had taken the Nazarite vow that required him to grow his hair long.


In Shelton v. El Paso County, 2010 U.S. Dist. LEXIS 91248 (WD TX, Sept. 1, 2010), a Texas federal magistrate judge recommended dismissing an inmate's complaint that a county jail refused to allow him access to his hard cover Qur'an, failed to supply him with a soft cover version, denied him a prayer rug, did not give him access to a Muslim representative and denied him a pork-free diet. Plaintiff asserted free exercise, RLUIPA, establishment Clause and equal protection claims.

In Ortiz v. Baker, 2010 U.S. Dist. LEXIS 91430 (D NV, July 27, 2010), a Nevada federal court judge dismissed, with leave to refile an amended complaint, a suit by a Jewish prisoner that merely alleged, without elaboration that defendants refused to permit him to practice Judaism and receive a kosher diet in violation of his First Amendment rights.

In Montague v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 91616 (MD TN, Sept. 2, 2010), a Tennessee federal magistrate judge recommended denying a Muslim inmate's request for a temporary restraining order to permit Muslim inmates to pool funds to purchase requested food for Eid ul-Fitr and Eid Adha banquets.

In Soria v. Skolnik, 2010 U.S. Dist. LEXIS 91543 (D NV, Aug. 10, 2010), a Nevada federal district court permitted an inmate to proceed with his claim that his rights under the free exercise clause, RLUIPA and the equal protection clause were violated by a prison policy requiring that for an inmate to receive a kosher diet, he must be recognized as a practicing Jew by the Aleph Institute or other recognized Jewish organization.

Maryland High Court Hears Arguments On Refusal To Reschedule Trial To Accommodate Religious Holiday

Last week, Maryland's Court of Appeals-- the state's highest court-- heard oral arguments in Neustadter v. Holy Cross Hospital of Silver Spring, Inc., posing the question of whether the religious freedom rights of a plaintiff in a medical malpractice case were infringed when the trial court refused to reschedule the trial in the case.  (Video of full oral argument). According to Saturday's Baltimore Sun, plaintiff, an Orthodox Jew, was denied a postponement or a two-day suspension of the trial for the Jewish holiday of Shavuot. Plaintiff did not attend those two days of trial and ordered his attorney not to work on his behalf on those days either. This led to crucial testimony by defendants' witnesses going unchallenged.

In Australia, Challenge Planned To School Chaplaincy Program

WA Today reports that in Australia, Queensland parent Ron Williams is planning to file suit to challenge the constitutionality of the country's school chaplaincy program.  Politicians have pledged to find $220 million to fund another 1000 chaplains in the schools. Meanwhile the Australian Psychological Society says the program is dangerous to children's mental health because many children are seeking out chaplains rather than psychologists to deal with mental health problems. At least one school even replaced its psychologist with a chaplain to save money. Program rules bar school chaplains from proselytizing.

Israeli Labor Court Says Private Catholic School Can Ban Muslim Teacher From Wearing Hijab

In Israel, the Jerusalem District Labor Court upheld the dress code requirements of a private Catholic school that barred a Muslim teacher from wearing a hijab (headscarf).  Today's Jerusalem Post reports that teacher Nada Nimri, who taught Arabic and Islam at the 120-year old Schmidt School for Girls, operated by the Mary Ward Sisters and owned by the Diocese of Cologne, decided after 27 years of teaching without wearing a hijab that she wanted to begin wearing one.  The school, which has both Catholic and Muslim students, enforces its dress code "in order to create uniformity between the students and teachers from Muslim and Christian backgrounds." Nimri argued that the requirement violated the Equal Opportunity in Work Law and the Equal Rights for Women Law (legislative background). The Labor Court held that because the school was a private school operated by a religious order, its pedagogical and educational concerns outweighed the burden on Nimri's religious beliefs.

Suit Against Scientology Creates Conflict Between State and Federal Judges

Saturday's St. Petersburg (FL) Times reports on an unusual clash between a state and a federal court judge in a case involving the Church of Scientology. Six years ago, attorney and vocal critic of Scientology, Ken Dandar, settled a state court wrongful death suit he brought against the Church of Scientology on behalf of the family of Lisa McPherson. She died in 1995 after being under the care of Scientology members for 17 days. As part of the settlement, Dandar agreed never to take another case against the Church of Scientology. However last year, Dandar filed a suit in federal court against Scientology's Flag Service Organization and the twin sister of Scientology's world leader, David Miscavige. Church attorneys claimed this violated the earlier settlement agreement, and state court Circuit Judge Robert Beach agreed. He ordered Dandar to withdraw from the federal case.

In response, Dandar filed a motion to withdraw, but attached an affidavit from his client asking that Dandar stay on because no other attorney will take the case. Federal district judge Steven Merryday decided that Dandar had not violated the settlement agreement and refused to allow him to withdraw. In response, state court judge Beach held Dandar in contempt and imposed a judgment of $130,000 to be paid to the Church of Scientology. Scientology's attorney said that Dandar could have gotten off the federal case by filing an affidavit claiming a conflict of interest. This angered federal Judge Merryday who saw it as an attempt to deceive the court. So he got Scientology's attorney and Dandar to agree to stop all proceedings in state court, including attempts to collect the judgement, until both sides can present full arguments in federal court. State court judge Beach says he does not think that a federal district court has jurisdiction to overturn his contempt finding.

Court OKs Menorah Display, But Not Use of City Personnel and Equipment To Light It

In Chabad of Mid-Hudson Valley v. City of Poughkeepsie, (NY App. Div., Aug. 31, 2010), a New York state appellate court held that the display of an 18-foot high menorah on public property in downtown Poughkeepsie (NY) did not violate the Establishment Clause because:

in the immediate vicinity of the menorah, as well as throughout the downtown area, are garlands, wreaths, and white lights, which ... "typify the secular celebration of Christmas".... These nearby secular decorations serve to emphasize the cultural message of Chanukah as represented by the menorah.... The relevant context also includes the symbols in the public lot ... 250 east [or the menorah display] ... which ... included not only a Christmas tree but a display of the Muslim faith in the form of a star and crescent. Therefore while the menorah does not lose its its religious symbolism, its surroundings negate any appearance of government endorsement....

The court concluded however that the Establishment Clause was violated in "allowing the plaintiffs to use municipal funds, labor, and equipment for the nightly menorah lighting, even if the plaintiffs repaid the City for such labor and equipment" because this "would foster the perception of an unconstitutional excessive governmental entanglement with religion."