Prosecutor's Biblical References Not A Basis For Overturning Death Sentences

Jackson v. Epps, 2010 U.S. Dist. LEXIS 102562 (ND MI, Sept. 28, 2010) is a habeas corpus action by a prisoner challenging his capital murder convictions and the resulting four death sentences imposed on him.  Among other claims, petitioner asserted that the prosecutor's Biblical references during closing arguments at the sentencing phase of his trial violated the Establishment Clause and urged jurors to rely on impermissible factors in reaching their decision. The court disagreed, pointing out that the prosecutor:

asked the jury to apply the secular law given to them, and she used a familiar reference to argue that point. The reign of King Herod and his death from a painful disease, are historical fact, and her comments concerning the slaughter of children referenced a story in a book. That the comments have a religious connotation does not render the argument inherently religious....

Moreover, [the prosecutor's] reference to "God's law" was responsive to Petitioner's own arguments..... [Her] statements were not an endorsement of extrajudicial authority for imposing a sentence of death. Her statements were more akin to familiar Proverbs and parables that are used to support arguments outside of a religious context.... [T]here was no prosecutorial suggestion that personal responsibility for the sentence did not ultimately rest with the jury, and the comments did not suggest that religious principles, rather than the law, applied.

Trial of Geert Wilders For Anti-Muslim Incitement Opens In Netherlands

In Amsterdam, Netherlands yesterday, the trial of Geert Wilders, an anti-Muslim right wing member of parliament, opened. Hurriyet Daily News reports that Wilders is charged with giving religious offense to Muslims and inciting hatred and discrimination against Muslims.  In his opening statement, Wilders defended freedom of speech, and then refused to answer any questions from judges. This led presiding judge Jan Moors to observe that Wilders appeared to be avoiding discussion. Wilders attorney said that this statement shows that Judge Moors is biased, and moved to have him disqualified. (See prior related posting.) Support by Wilders' Freedom Party is critical to the coalition government that will shortly take office in the Netherlands. (See prior related posting.)

Husband In Contempt For Teaching Child Christian Faith In Violation of Divorce Settlement

In Greene v. Greene, (GA Ct. App., Oct. 1, 2010), a Georgia appellate court upheld a trial court's finding that a divorced husband was in contempt for violating a Settlement Agreement that gave his former wife final decision-making authority over matters related to their daughter's religious upbringing.  The wife was Jewish and the husband was Christian. The husband had agreed that the child would be raised in the Jewish faith.  However, according to the court:

Husband admitted that he had taken the child to numerous Christian churches ...[;] that he told the child that she was Jewish on the outside and Christian on the inside; that he shared Christian prayers with the child; that he and his mother read the Bible to the child; that his mother taught the child the Christian faith from the Bible...; and that the child told him that she was conflicted about the two different faiths. Husband also admitted that he gave the child a children's Bible, as well as DVDs of Christian stories and movies; that he taught her Christian songs and played them while riding in the car with the child; and that he had referred to Wife's parents by numbers but denied that he was referencing the Holocaust.

The appeals court also concluded that the trial court's instructions to the Husband on how to purge himself of contempt were sufficiently clear.

Muslims Get Mixed Messages On Their Integration In Germany

Deutsche Welle reported yesterday that Muslims in Germany are getting mixed messages from top government leaders.  On Sunday, Germany's President Christian Wulff, in a speech marking the 20th anniversary of German reunification, called for the integration of Muslims in Germany. In his speech, Wulff said: "Christianity doubtless belongs in Germany. Judaism belongs doubtless in Germany. That is our Judeo-Christian history. But now, Islam also belongs in Germany." A day later, German Chancellor Angela Merkel, endorsed Wulff's views but added that Muslims living in Germany must conform to "fundamental German values." She said there was no leeway on this demand. Meanwhile Norbert Geis, a member of parliament from a Bavarian party allied with Merkel's Christian Democrats said that Wulff's statement should not be interpreted to mean that Islam and Christianity have an equal footing in Germany.

Cert. Denied In Challenge To School Ban On Religious Music In Holiday Concerts

Yesterday the U.S. Supreme Court denied certiorari in Stratechuk v. Board of Education, (Docket No. 09-1184) (Order List.) In the case, the 3rd Circuit upheld a New Jersey school district's policy banning celebratory religious holiday music at school-sponsored holiday concerts. (See prior posting.) The policy was challenged on Establishment Clause grounds and on the ground that the school was unconstitutionally restricting students' access to ideas. Yesterday's Newark (NJ) Star Ledger reports on the Supreme Court's refusal to grant review.

England's Charity Commission Says Druids Are A Religion

The Charity Commission for England and Wales last Saturday, for the first time, recognized Druidry as a religion. The action gives the Druid Network charitable status for tax purposes in Britain.  CNN reports the Commission found that in Druidry: "There is a sufficient belief in a supreme being or entity to constitute a religion for the purposes of charity law." The Druids are generally seen as a neo-Pagan religion.

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.