Recent Articles and Books of Interest

From SSRN:

• Susanna Mancini & Michel Rosenfeld, Unveiling the Limits of Tolerance: Comparing the Treatment of Majority and Minority Religious Symbols in the Public Sphere, (Cardozo Legal Studies Research Paper No. 309, Sept. 28, 2010).
• Paul Schiff Berman, Towards a Jurisprudence of Hybridity, (Utah Law Review, No. 1, 2010).

From SmartCILP:

• Scott W. Gaylord, Licensing Facially Religious Government Speech: Summum's Impact on the Free Speech and Establishment Clauses, 8 First Amendment Law Review 315-413 (2010).
• David L. Gregory & Stephen Martir, The Catholicity of the Middle Class: Reflections on Caritas in Veritate, 24 Notre Dame Journal of Law, Ethics & Public Policy 379-398 (2010).
• Guy Haarscher, Secularism, the Veil and "Reasonable Interlocutors": Why France Is Not All That Wrong, 28 Penn State International Law Review 367-382 (2010).
• Susan Pace Hamill, A Moral Perspective on the Role of Education in Sustaining the Middle Class, 24 Notre Dame Journal of Law, Ethics & Public Policy 309-325 (2010).
• R. Ashby Pate, Blood Libel: Radical Islam's Conscription of the Law of Defamation into a Legal Jihad Against the West--and How to Stop It, 8 First Amendment Law Review 414-451 (2010).
• Robert E. Rains, Marriage in the Time of Internet Ministers: I Now Pronounce You Married, but Who Am I To Do So?, 64 University of Miami Law Review 809-877 (2010).
• Mehmet Cengiz Uzun, The Protection of Laicism in Turkey and the Turkish Constitutional Court: the Example of Prohibition on the Use of the Islamic Veil in Higher Education, 28 Penn State International Law Review 383-426 (2010).

New Books:

• John Witte, Jr. & Joel Nichols, Religion and the American Constitutional Experiment, Third Edition, (Westview Press, July 2010).
• Jeff Sharlet, C Street: The Fundamentalist Threat to American Democracy, (Little Brown, Sept. 27, 2010), excerpted in The Takeaway.

Red Mass Marks Beginning of Supreme Court's October Term

The U.S. Supreme Court opens its new term today.  Yesterday, according to CNN, the traditional Red Mass was held at the Cathedral of St. Matthew the Apostle in Washington to mark the new term.  Among those in attendance was Vice President Joe Biden, Chief Justice John Roberts, and Associate Justices Samuel Alito, Antonin Scalia, Clarence Thomas and Stephen Breyer.  Breyer was the only Justice attending who is not Catholic. He is Jewish.  The Court now is made up of six Catholics and three Jews. The homily at the Mass was given by Archbishop J. Augustine Di Noia.  During the current term, the Court will decide at least two cases involving the intersection of law and religion.  Arizona School Tuition Organization v. Winn involves a church-state challenge to Arizona's tuition tax credits (background), while Snyder v. Phelps involves a challenge by members of the anti-gay Westboro Baptist Church to a damage award against them for emotional distress caused by their picketing of a veteran's funeral (background).

Lawyer in Mosque Zoning Case Argues Islam Is A Political Movement, Not A Religion

Last week, court hearings began in the Rutherford County (TN) Chancery Court in a lawsuit seeking a temporary restraining order to halt construction of a controversial Islamic center being built in Murfreesboro, Tennessee. (See prior related posting.) Normally RLUIPA gives religious institutions special protections in zoning matters. The Tennessean reported yesterday, however, that challengers argued in court that Islam should be classified as a political movement, not a religion, and that the proposed mosque is not a house of worship.  In his opening statement, Smyrna (TN) attorney Joe Brandon, Jr. argued: "Shariah law is pure sedition." Local officials disagree and say the mosque should be treated like any other house of worship.

En Banc Rehearing Sought In Christian Student's Challenge To College's Policy

A petition for an en banc rehearing by the 9th Circuit in Lopez v. Candaele was filed last week. (Full text of petition.)  In the case, a panel of the 9th Circuit held that a Christian student at Los Angeles City College lacks standing to challenge the school's sexual harassment policy because there was never any credible threat that the policy would be used to discipline the student despite a speech professor's objections to the student's religious opposition to same-sex marriage. (See prior posting.) The rehearing request argues that the panel holding is at odds with decisions in the 3rd and 6th Circuits which permit a challenge to overbroad statutes that chill speech without a threat of enforcement. Alliance Defense Fund issued a press release announcing the filing of the rehearing request.

Appeals Court Upholds Release of Psychiatric Files of Clergy In Sex Abuse Settlement

In Doe 1 v. Franciscan Friars of California, Inc., (CA App., Sept. 30, 2010), a California appellate court held that pursuant to a settlement in a clergy sex abuse case, various confidential files of six alleged perpetrators could be released to the public. The court found that "compelling social interests in protecting children from molestation outweigh the Individual Friars' privacy rights, and the trial court correctly ordered the public release of psychiatric and other confidential records in the possession of the Franciscans." (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Patterson v. Schriro, 2010 U.S. Dist. LEXIS 100187 (D AZ, Sept. 2), an Arizona federal district court refused to issue a preliminary injunction ordering plaintiff receive a kosher diet because plaintiff alleged no threat that his current kosher diet is likely to be discontinued or changed.


In Pugh v. Caruso, 2010 U.S. Dist. LEXIS 100683 (WD MI, Sept. 22, 2010), a federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 100713, Aug. 25, 2010) and dismissed plaintiff's RLUIPA challenge to various limits on his practice of Wicca.


In Ali v. Quarterman, 2010 U.S. Dist. LEXIS 100621 (ED TX, Sept. 24, 2010), a Texas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 100707, July 20, 2010) and dismissed a Muslim inmate's objections to the prison's grooming code that prevented him from wearing a beard and to its headgear policy that allowed him to wear a kufi only in his cell and at religious services.


In Ahmad v. Thomas, 2010 U.S. Dist. LEXIS 100866 (SD  TX, Sept. 23, 2010), a Texas federal district court dismissed a Muslim inmate's attempt to obtain Friday Jum'ah services at the Harris County Jail as well as the right to use his prayer carpet and kufi cap in his cell.


In Braithwaite v. Hinkle, 2010 U.S. Dist. LEXIS 100510 (ED VA, Sept. 20, 2010), a Virginia federal district court dismissed a Muslim inmate's free exercise challenge to prison grooming rules that prohibited him from wearing a beard. UPDATE: Affirmed, 2011 U.S. App. LEXIS 4115 (4th Cir., Feb. 24, 2011).


In Vinson v. Riley, 2010 U.S. Dist. LEXIS 101666 (WD MI, Sept. 27, 2010), a Michigan federal district court permitted an inmate to move ahead with certain of his claims asserting that his free exercise and RLUIPA rights were violated when he was removed from the kosher meal program.  Officials said plaintiff had changed his religion by asserting that he was an active Moorish Science member. Plaintiff said that his nationality is Moorish American, but his religion is still African Hebrew Israelite.


In Jean-Pierre v. Bureau of Prisons, 2010 U.S. Dist. LEXIS 101546 (WD PA, Sept. 27, 2010), a Pennsylvania federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 101614, July 30, 2010) and permitted a Rastafarian inmate to move ahead on his free exercise and equal protection claims growing out of his removal from the Certified Religious Diet Program. However the court dismissed plaintiff's official capacity claims and claims for monetary damages under RFRA.


In Hall v. Skolnik, 2010 U.S. Dist. LEXIS 102277 (D NV, Sept. 13, 2010), an inmate challenged authorities' denial of his request for kosher meals and charged that prison policies prevent black-Jewish inmates from practicing their religion to the same extent as other Jewish inmates. The court dismissed plaintiff's  official capacity claims for monetary damages and claims against the Nevada Department of Corrections, his 8th Amendment claims and his claims for emotional distress. However he was permitted to proceed on other claims.


In Avery v. Ferguson, 2010 U.S. Dist. LEXIS 101947 (WD AK, Sept. 24, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 101864, Sept. 3, 2010) and rejected a number of claims of constitutional violations growing out of conditions when plaintiff was held as a pre-trial detainee. However it permitted him to proceed with his claim that his free exercise rights were violated when he was denied a vegetarian diet.

USCIRF Puts Religious Freedom Spin on President's New Iran Sanctions

On Sept. 29, President Obama issued an Executive Order (full text) imposing financial sanctions on eight Iranian officials connected with the Revolutionary Guard, armed forces, Iranian intelligence service and national police.  Secretary of State Hillary Clinton said the sanctions were imposed on "officials responsible for serious and sustained human rights abuses since the disputed election of June 2009." (Full text of statement.) As reported by the San Francisco Chronicle, the Order for the first time makes use of new authority given to the President in the Comprehensive Iran Sanctions Accountability and Divestment Act of 2010.  The Executive Order blocks funds of the 8 individuals in the U.S. or in overseas branches of U.S. banks and bars the contribution of funds, goods or services to the individuals. A Release issued last week by the U.S. Commission on International Religious Freedom attempts to put a religious freedom spin on the new sanctions order. According to USCIRF: "During the past year, the Iranian government’s poor religious freedom record deteriorated, especially for religious minorities such as Baha’is, Christians, and Sufi Muslims, and physical attacks, harassment, detention, arrests, and imprisonment intensified. Even the recognized non-Muslim religious minorities–Jews, Armenian and Assyrian Christians, and Zoroastrians–protected under Iran’s constitution faced increasing discrimination and repression."

Court Issues Letters Rogatory Seeking Aid In Serving Process on Pope, Cardinals

In an unusual move, a Wisconsin federal district court in Doe 16 v. Holy See, (ED WI, Sept. 24, 2010), issued Letters Rogatory to "the appropriate judicial authority of the Holy See," requesting its assistance in serving process on Pope Benedict XVI and two cardinals named as defendants in a civil suit seeking damages and and other relief growing out of sexual abuse plaintiff suffered at the hands of Rev. Lawrence Murphy who taught at St. John's School for the Deaf. (See prior posting.) Here is the full text of the court order granting the motion for Letters Rogatory and the Letters relating to Pope Benedict, Cardinal Bertone (Vatican Secretary of State) and Cardinal Sodano (Bertone's predecessor). Raw Story carries its own and the AP report on the court orders. SNAP also issued a press release on the court's action.

California Governor Vetoes Civil Marriage Religious Freedom Act

Equality California reports that on Sept. 30 California Gov. Arnold Schwarzenegger vetoed SB 906, the Civil Marriage Religious Freedom Act. The bill was designed to protect clergy who refuse to solemnize a marriage that is contrary to their faith.  The Governor, however, objected to the portion of the bill that inserted the word "civil" before "marriage" in the California Family Code's definition of marriage. In response to the veto, Equality California said: "The governor’s mistaken belief that religious and civil marriages are identical and that religious marriages can be regulated by the state is exactly why this bill is needed.... We look forward to addressing the issues set forth in this bill with our next governor who hopefully will have a legal background and a clearer understanding of the fact that California law already defines marriage as a 'civil contract.'"  GLT News Now also reports on the veto. (See prior related posting.)

AU Asks IRS To Investigate Church Project Seeking To Unseat Iowa High Court Justices

Americans United announced on Thursday that it has written the Internal Revenue Service (full text of letter) complaining that Sioux City Iowa's Cornerstone World Outreach is violating the terms of its Section 501(c)(3) status by organizing Project Jeremiah 2010.  The Project is a campaign to urge parishioners to vote "no" on retention of three Iowa Supreme Court justices in November because the justices invalidated the state's ban on same-sex marriages. (See prior posting.) Cornerstone and other groups sponsoring the Project are asking pastors on the three Sunday's before election day to preach a message asking their followers to vote no in the retention vote. Yesterday's Sioux City Journal covers the reaction of a Cornerstone pastor and links to additional letters from Cornerstone on the matter.

In 2 Suits, EEOC Charges Businesses With Refusing To Accommodate Sunday Sabbath Observance

In two lawsuits filed Friday, the EEOC sued two unrelated businesses for refusing to accommodate the religious observance of employees who refused to work on Sundays because it is their Sabbath.  In a suit filed in federal court in Washington state, the EEOC charged that Walmart ended the accommodation it had provided the manager of its Colville (WA) store for the last 14 years. (EEOC press release.)  Employee Richard Nichols is a devout Mormon and, according to the Bellingham (WA) Herald, is also the mayor of Colville.

Meanwhile, in a suit filed in a California federal district court, the EEOC charged that a new manager at a Supercuts store refused to continue the practice that for 9 years had accommodated hair stylist Carolyn Sedar's observance of Sunday as her sabbath. (EEOC press release.)

Reference To Defendant's Satanist Beliefs Is Not Basis For Reversal of Death Sentence

In Davis v. State of Texas, (TX Ct. Crim. App., Sept. 29, 2010), a Texas appellate court rejected a defendant', appeal of his death sentence, finding that defendant's various claims of prejudice because he was a Satanist did not call for reversal of the jury's decision in the punishment phase.  The issue arose on a retrial of the penalty phase of his case after his successful appeal.  Defendant had become a Satanist while in prison. the court rejected defendant's objection to the prosecutor's statement in closing argument that evidence of defendant's affiliation with Satanism is another piece of the puzzle for the jury to consider on the issue of whether defendant would likely pose a danger in the future. The appeals court also upheld the trial court's rejection of for cause challenges to two jurors who defendant claimed would be prejudiced against him because of his Satanist affiliation. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Indian Court Issues Compromise Ruling In Long-Running Dispute Over Title To Sacred Land

In India on Thursday, the Allahabad High Court issued a compromise ruling in a 60-year long dispute over title to a sacred site claimed by both Hindus and Muslims.  NDTV and the Wall Street Journal report on the 2-1 decision that divided the site in the town of Ayodhya between the two religious groups. Hindus say the site was the birthplace of Lard Ram and was the location of an ancient temple. However the Babri Masjid mosque was constructed on the site sometime between the 16th and 18th century.  In 1992, a Hindu mob partially destroyed the mosque, and widespread violence followed.  In its decision (excerpts), all three judges agreed that the area below the central dome where idols of Lord Ram and other gods sit in a makeshift temple, should be warded to the Hindu Nirmohi Akhara. Under the majority judgment, one-third of the site also goes to the Hindu party for Ram Lalla, and one-third goes to the Muslim Sunni Waqf Board. The inner courtyard belongs to both Hindus and Muslims.The ruling however maintains the status quo for three months so the parties can appeal. Each of the three judges issued a separate opinion, which in total were reported to run 8000 pages.

CNN Fires Rick Sanchez For Anti-Semitic Comments On Radio Interview

Yesterday CNN fired news anchor Rick Sanchez after Sanchez's anti-Semitic remarks in an interview on SiriusXM radio.  In the interview with Pete Dominick on "Stand Up!", Sanchez called Comedy Central's John Stewart a bigot.  Sanchez was promoting his new book, "Conventional Idiocy." As reported by the Washington Post, Stewart has repeatedly criticized Sanchez on The Daily Show. Among Sanchez's comments in the long interview was the following : "I'm telling you that everybody who runs CNN is a lot like Stewart. And a lot of people who run all the other networks are a lot like Stewart. And to imply that somehow they, the people in this country who are Jewish are oppressed minorities? Yeah." The Washington Post has more excerpts and audio from the interview.

Challenge To Pledge and National Motto In Capitol Visitor Center Dismissed On Standing Grounds

In Freedom from Religion Foundation v. Ayers, (WD WI, Sept. 29, 2010), a Wisconsin federal district court held that neither the Freedom from Religion Foundation, nor any of its members, have standing to bring an Establishment Clause challenge to a Congressional joint resolution calling for the Architect of the Capital to engrave the Pledge of Allegiance and the National Motto, “In God We Trust”, in the Capitol Visitors Center.  The court held:

Plaintiffs fail to establish standing because they cannot point to any specific congressional appropriation for the allegedly unconstitutional concurrent resolution. Plaintiffs allege that performing the engraving as required by the concurrent resolution cost between $100,000 and $150,000 “funded from U.S. taxpayer appropriations made by Congress[.]” … This allegation … does not provide the necessary link between taxpayer status and the expenditure. “[U]se of funds for [an] allegedly unconstitutional program, without more, is not sufficient to meet the nexus required by Flast”; the appropriation of those funds for such a purpose is what provides the necessary link between taxpayer and expenditure to create standing.

The American Center for Law & Justice issued a press release calling the decision "an encouraging victory."  Huffington Post reported on the decision.   

European Human Rights Court Rules on Right of Churches To Dismiss Employees for Private Behavior

In a press release last week, the European Court of Human Rights announced two Chamber Judgments, ruling for the first time on the application of the European Convention on Human Rights application to the dismissal of church employees for conduct in the sphere of their private lives. Article 8 of the ECHR protects the right to respect for family and private life.

In Obst v. Germany, the court upheld action by the German courts in permitting the Mormon Church to dismiss Michael Obst, the Church's director of public relations for Europe, for having an affair with another woman while he was married. As described by the press release, the European Court held that:

the German labour courts had taken account of all the relevant factors and undertaken a careful and thorough balancing exercise regarding the interests involved. They had pointed out that the Mormon Church had only been able to base Mr Obst’s dismissal on his adultery because he had informed the Church of it by his own initiative. According to the German courts’ findings, his dismissal amounted to a necessary measure aimed at preserving the Church’s credibility, having regard in particular to the nature of his post.

However, in the second case, Schuth v. Germany, the European Court held that the German courts had violated Art. 8 of the ECHR in permitting a Catholic parish to dismiss Bernhard Schuth, its organist and choirmaster, for living with a new partner after he separated from his wife. The press release describes the views of the European Court:

the [German] labour court of appeal had confined itself to stating that ... [Schuth's] functions were ... so closely connected to the Catholic Church’s proclamatory mission that the parish could not continue employing him without losing all credibility. That court had not examined this argument any further but appeared to have simply reproduced the opinion of the Church employer on this point. 

The labour courts had moreover made no mention of Mr Schüth’s de facto family life or of the legal protection afforded to it. The interests of the Church employer had thus not been balanced against Mr Schüth’s right to respect for his private and family life, but only against his interest in keeping his post. A more detailed examination would have been required when weighing the competing rights and interests at stake.

The full text of each of the decisions are available in French: Affaire Obst c. Allemagne, (ECHR, Sept. 23, 2010) and Affaire Schuth c. Allemange, (ECHR, Sept. 23, 2010). These Chamber Judgments can still be appealed to the Grand Chamber. [Thanks to Pew Sitter for the lead.]

Judge Refuses To Recuse Himself Over Charge of Religious Bias

Palmer v. City of Prescott, 2010 U.S. Dist. LEXIS 101136 (D AZ, Sept. 7, 2010), is a suit against the city of Prescott, Arizona and various of its officials alleging violations of plaintiff's 4th and 5th Amendment rights. Plaintiff moved to disqualify federal district court Judge David Campbell from hearing the case because Campbell is a member of the Church of Jesus Christ of Latter Day Saints.  Plaintiff, Peter Palmer, is an evangelical Christian who proselytizes Mormons. He alleges that Judge Campbell's religious beliefs will bias him against plaintiff. The judge refused to disqualify himself, saying that plaintiff's proselytizing activities have nothing to do with the claims in this case, and citing federal precedent holding that church membership does not create a sufficient appearance of bias to require disqualification.

EEOC Sues AutoZone On Behalf of Sikh Employee

The EEOC announced yesterday that it has filed a lawsuit in federal district court in Massachusetts against AutoZone, Inc. on behalf of a Sikh employee.  The suit alleges that AutoZone refused to allow employee Frank Mahoney-Burroughs wear a turban and kara (religious bracelet). The suit also alleges a hostile work environment in which Mahoney-Burroughs' manager asked him if he was a terrorist and had joined al-Qaeda, and in which Auto Zone failed to intervene when customers made terrorist jokes and referred to Mahoney-Burroughs as Bin-Laden. The suit alleges that Mahoney-Burroughs was fired because of his religion and in retaliation for complaining about discrimination.

DC Circuit Stays Preliminary Injunction Against Stem Cell Guidelines

Yesterday the Court of Appeals for the D.C. Circuit in Sherley v. Sebelius granted a stay of a preliminary injunction during the appeal of a federal district court's order enjoining application of the Obama Administration's guidelines expanding grants for stem cell research. (Full text of order.) The court also ordered that argument of the appeal be expedited.  According to a Reuters report, government lawyers argued to the D.C. Circuit that dozens of research projects would be ruined if their grant funding was cut off, wasting millions of taxpayer dollars.

AU Asks IRS To Investigate Church's Political Endorsement On Pulpit Sunday

Reaction is now beginning to activities of churches which last Sunday participated in Alliance Defense Fund's Pulpit Sunday challenging tax code restrictions on non-profits, including churches. (See prior posting.)  Americans United announced yesterday that it has sent a letter (full text) to the Internal Revenue Service asking it to investigate Fairview Baptist Church in Edmond, Oklahoma.  The church's pastor, Paul Blair, endorsed Rep. Mary Fallin for Oklahoma governor from the pulpit during Sunday services.