Cert. Filed In Kentucky 10 Commandments Case

A petition for certiorari (full text) was filed yesterday in McCreary County, Kentucky v. ACLU of Kentucky.  In the case, a majority of a 6th Circuit panel (see prior posting) approved issuance of a permanent injunction against a display of the 10 Commandments with other historical documents that refer to God in two Kentucky county court houses. In 2005, the U.S. Supreme Court found the display violated the Establishment Clause, but later litigation focused on whether the counties had changed their religious purposes for the display. The 6th Circuit denied en banc review. (See prior posting.) The petition seeking Supreme Court review asks the Court to replace the Lemon test with a new Establishment Clause test for passive religious displays. Liberty Counsel issued a press release announcing the filing of the cert. petition.

DOE Returns To Prior Policy On Religious-Ethnic Discrimination On Campuses

JTA reports that in new guidance issued yesterday by the U.S. Department of Education on bullying, DOE made clear that it is returning to its 2004 policy on religious discrimination designed to permit the application of federal civil rights laws to anti-Semitic incidents on campuses, as well as to discrimination against Arab Muslims and Sikhs at schools receiving federal funds.  Title VI of the 1964 Civil Rights Act bars discrimination on the basis of race, color or national origin, but it does not bar religious discrimination by institutions receiving federal funds. However, in a "Dear Colleague" letter (full text) sent by the Department's Assistant Secretary for Civil Rights to 15,000 schools, and 5,000 colleges and universities around the country (ABC News), the Department announced:

While Title VI does not cover discrimination based solely on religion, groups that face discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics may not be denied protection under Title VI on the ground that they also share a common faith.  These principles apply not just to Jewish students, but also to students from any discrete religious group that shares, or is perceived to share, ancestry or ethnic characteristics (e.g., Muslims or Sikhs).  Thus, harassment against students who are members of any religious group triggers a school’s Title VI responsibilities when the harassment is based on the group’s actual or perceived shared ancestry or ethnic characteristics, rather than solely on its members’ religious practices.  A school also has responsibilities under Title VI when its students are harassed based on their actual or perceived citizenship or residency in a country whose residents share a dominant religion or a distinct religious identity.

Rep. Brad Sherman who had introduced legislation to extend the coverage of Title VI to religious discrimination (see prior posting) issued a release applauding DOE's announcement. In 2006, DOE as well as the U.S. Civil Rights Commission had apparently backed away from enforcing Title VI to get at anti-Semitic incidents. (See prior posting.)

 

New Report Issued On Impact of Blasphemy Laws

Freedom House last week issued a 138-page report titled Policing Belief: The Impact of Blasphemy Laws on Human Rights. Examining blasphemy and religious insult laws in seven countries, the report concludes that:

blasphemy laws are often vaguely worded and ill-defined, making them prone to arbitrary or overly broad application, particularly in settings where there are no checks and balances in place to prevent such abuses. In countries with weak democracies, authoritarian systems, or compromised judiciaries, these laws have a particularly pernicious effect:

• Governments have abused blasphemy laws to silence the political opposition, government critics, and other dissidents.
• Individuals have fabricated charges of blasphemy against others in their communities to settle petty disputes.
• Religious extremists have exploited blasphemy laws to justify attacks on religious minorities, thereby fostering an environment of intolerance where discrimination is effectively condoned by the state.
• Religious institutions, often with official or unofficial government backing, have used blasphemy laws to impose the state-sanctioned interpretations of religious doctrine on members of minority sects that are deemed deviant or heretical.

California Court Upholds Sexual Harassment Award To Firefighters Ordered To Drive In LGBT Pride Parade

In Ghiotto v. City of San Diego, (CA App. Oct. 14, 2010), a California state appellate court upheld a trial court's award of damages for sexual harassment and an award of attorneys' fees to four firefighters who were required, over their personal objections, to drive a fire engine in the San Diego Pride Parade celebrating the local LGBT community. Parade spectators directed sexual comments and gestures at the firefighters and some spectators wore sexually suggestive clothing or exposed themselves. The appeals court also affirmed the trial court's dismissal of plaintiffs' free expression challenge, finding that only injunctive relief had been sought and a policy change limiting staffing of parades to volunteers meant that there is no threat of firefighters being forced to participate in parades in the future. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Court Clears Mississippi Personhood Amendment For 2011 Ballot

In Hughes v. Hosemann, (MS Cir. Ct., Oct. 26, 2010), a Mississippi state trial court judge cleared the way for a "personhood" amendment to appear on the November 2011 ballot in the state.  Challengers argued that Initiative Measure Number 26 violates Sec. 273(5)(a) of the Mississippi Constitution that bars use of the initiative procedure to propose, modify or repeal any portion of the state constitution's Bill of Rights.  Without elaboration, the court stated merely that plaintiffs had not carried the "heavy burden" required to restrict the citizenry's right to amend the state's constitution. The proposed constitutional amendment would define the word "person" as used in the state constitution to include "every human being from the moment of fertilization, cloning or the functional equivalent thereof." Liberty Counsel issued a press release commending the court for its "commonsense ruling."

Court Dismisses Jewish Student's Discrimination Claim Against Seton Hall

In Vaynberg v. Seton Hall University, 2010 U.S. Dist. LEXIS 112634 (D NJ, Oct. 21, 2010), a New Jersey federal district court dismissed a religious discrimination claim brought against Seton Hall University by a Jewish student who was dismissed from the school's doctoral program in physical therapy for failing to maintain a 3.0 GPA. Plaintiff Farakh Vaynberg alleged that one of her instructors, Dr. Kim Poulson, refused to excuse her from class on Yom Kippur and told her to choose between her faith and her school work. She claims that this exchange made her feel compelled to take a mid-term exam on Yom Kippur in a second course offered by a different instructor who had in fact excused Jewish students for Yom Kippur. The court found  no causal connection between Dr. Poulson's alleged conduct and Vaynberg's dismissal because Poulson gave Vaynberg some of her best grades. She also failed to present evidence to support her claim that meetings with Poulson after an unsatisfactory grade in her clinical practicum (which did not count in her GPA) upset her so that she performed poorly in other courses. Finally, according to the court, no state action was shown to support Vaynberg's First Amendment free exercise claim.

Plaintiffs Can Proceed With Negligent Retention and Supervision Claims Against Catholic Church and School

In Jones v. Roman Catholic Archdiocese of New York, (Sup. Ct. NY County, Oct. 7, 2010), a New York state trial court dismissed negligent hiring, breach of contract and deceptive business practice claims brought by a female student and her parents against the Roman Catholic Diocese of New York, the Church of St. Paul and the school it operates, growing out of sexual abuse of the student by a female part-time gym and music teacher.  It also dismissed negligent retention and supervision claims against the Diocese.  However plaintiffs were permitted to proceed with their claims of negligent retention and supervision against the Church of St. Paul's and St. Paul's Catholic School.

Survey Released On Church Involvement In Distributing Candidate Information

A survey released last week by the Pew Forum on Religion & Public Life reports that among voters who attend religious services at once per month, 15% say that information on political parties or candidates has been made available at their places of worship. Within that group, 36% of Black Protestants report that information has been made available at their churches. However only 5% of all respondents, 6% of Black Protestants, and 7% of Catholics say that clergy have urged them to vote in a specific way.

In Tajikistan, Islamic Party's Prayer Room Burns Down

In Tajikistan's capital of Dushanbe on Sunday, a controversial room used for daily prayers in the headquarters of the Islamic Revival Party (IRP) was destroyed by fire. Central Asia Newswire reports that Tajikistan's Committee on Religious Affairs had threatened to close the room because under the country's constitution political parties are not allowed to sponsor religious activities. An IRP leader has suggested constitutional changes to recognize the importance of religion in Tajik culture.

Blogger Who Criticized Church Pastor Settles Lawsuit Against Police Officials

ABP last week reported on a settlement in Rich v. City of Jacksonville, a Florida federal court lawsuit by a blogger against against a sheriff's office official and an assistant state attorney charging free speech and Establishment Clause violations. Tom Rich began an anonymous blog on which he raised concerns about the pastor of First Baptist Church in Jacksonville. Officer Robert Hinson, who was also on the pastor's security detail, opened an investigation in order to be able to subpoena Google and Comcast to discover the owner of the blog. Hinson obtained subpoenas from the Office of the State Attorney. Ultimately church officials were told the blogger's identity and the church barred Rich from its premises and began proceedings to revoke his church membership. (See prior posting.)  The settlement, announced on Rich's blog, gives plaintiff $50,000 in damages and commits the Jacksonville sheriff's office to make changes in its conflict of interest code and develop training for detectives on First Amendment issues. [Thanks to Wall of Separation for the lead.]

California Abusive Priest Personnel Records Released Implementing 2007 Settlement

The San Francisco Examiner reports that after three years of litigation, a California judge on Friday issued an order releasing some 10,000 pages of personnel records relating to 48 Catholic priests in the San Diego diocese who were either convicted or credibly accused of sexual abuse or who were named in a civil suit.  The order (full text) in The Clergy Cases II, (CA Super. Ct., Oct. 22, 2010), grew out of a 2007 settlement by 144 plaintiffs with the diocese for some $200 million and an agreement that an independent judge would decide which personnel records would be made public. (See prior posting.) All of the documents released Friday are available at BishopAccountability.org. Attorneys are still seeking release of another 2000 pages of files.

Supreme Court Review Sought In Pastor's Defamation Claim Against Church

On Friday, a petition for certiorari (full text) to the U.S. Supreme Court was filed in Cooke v. Tubra.  In the case, an Oregon state appellate court held that jurisdiction over an interim pastor's defamation claim against his former church and two of its officers is not necessarily barred by the First Amendment. (See prior posting.) The Oregon Supreme Court denied review. The court below distinguished between statements made by a church that are necessarily religious in nature, and those that do not concern the religious beliefs and practices of the organization or are made for a non-religious purpose. [Thanks to Mark Chopko for the lead.]

Indian Court Holds Women Heirs of Priests Have Equal Rights To Share In Offerings

In India, a Delhi High Court judge has ruled that women in priestly families of the Kalkaji Temple have an equal right with men to share in the offerings collected during festivals. Today's Hindustan Times  and Express India report on the decision that dismissed a suit by one of the priests seeking an order to prevent his three sisters from claiming a share of the offerings.  The court rejected arguments that historically only males shared in the offerings because they are the ones who performed temple rituals.  The court wrote in part: "If one keeps the underlying principles of the international covenants and the guarantee of equality held out by our Constitution in mind, it would be anachronistic and regressive to affirm the contention that the discriminatory practice of excluding female heirs from the benefits of property rights to which Baris are attached, which appears to have existed all this while, should be continued."

Recent Articles of Interest

From SSRN:

• Maimon Schwarzschild, How We Judge the Judges, (Conversations, No. 8, p. 83, 2010).
• Geoffrey P. Miller, Monarchy in the Hebrew Bible, (NYU School of Law, Public Law Research Paper No. 10-76, Oct. 19, 2010).
• Diane Marie Amann, Cecelia Goetz, Woman at Nuremberg, (International Criminal Law Review, Forthcoming).

From SmartCILP:

• Amos N. Guiora, Protecting the Unprotected: Religious Extremism and Child Endangerment, 12 Journal of Law & Family Studies 391-407 (2010).
• Ran Kuttner, What Does It Mean to Do the Right Thing?, 10 Nevada Law Journal 407-432 (2010).
• Adelaide Madera, Civil and Religious Law Concerning Divorce: The Condition of Women and Their Empowerment, 12 Journal of Law & Family Studies 365-389 (2010).
• Brett G. Scharffs & Suzanne Disparte, Comparative Models for Transitioning from Religious to Civil Marriage Systems, 12 Journal of Law & Family Studies 409-430 (2010).
• Rhona Schuz, The Relevance of Religious Law and Cultural Considerations in International Child Abduction Disputes, 12 Journal of Law & Family Studies 453-497 (2010).
• Lynn D. Wardle, Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws Solutions, 12 Journal of Law & Family Studies 315-364 (2010).
• Symposium: Families, Fundamentalism, & the First Amendment. Introduction by Vivian E. Hamilton; articles by Randall Balmer, Frederick Mark Gedicks, Andrew Koppelman, Robin Fretwell Wilson, Marci A. Hamilton, Catherine J. Ross, June Carbone, Naomi Cahn and John E. Taylor. 18 William & Mary Bill of Rights Journal 883-1095 (2010).

Tony Blair's Sister-In-Law Converts To Islam; Says She Hopes It Changes Blair's Views

Yesterday's London Mail reports that Lauren Booth, the sister-in-law of former British Prime Minister Tony Blair, has converted to Islam after having a holy experience at the shrine of Fatima al-Masumeh in the city of Qom during a visit to Iran six weeks ago. Booth, the half-sister of Cherie Blair, works for Press TV, the English language Iranian news channel. She says she hopes her conversion will cause Blair-- now an envoy on the Middle East for the so-called Quartet-- to change his views of Islam.  Booth now wears a hijab whenever she is in public, prays five times a day and abstains from alcohol despite her previous craving for a glass or two of wine at the end of each day.

Recent Prisoner Free Exercise Cases

In Clifton v. Lappin, 2010 U.S. Dist. LEXIS 111569 (WD LA, Oct. 18, 2010), adopting magistrate's recommendations (2010 U.S. Dist. LEXIS 111473, Oct. 4, 2010), and Plummer v. Lappin, 2010 U.S. Dist. LEXIS 111502, Oct. 18, 2010), adopting magistrate's recommendations (2010 U.S. Dist. LEXIS 111477, Sept. 20, 2010), a Louisiana federal district court rejected complaints that inmates are prohibited from attending religious services when the entire prison is on lock down.


In Townsend v. Byers, 2010 Conn. Super. LEXIS 2285 (CT Super., Sept. 21, 2010), a Connecticut state trial court held that an inmate's free exercise rights were not violated when a correctional officer responded to his threat to file a grievance by telling him "to write to Allah."


In Means v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 112507 (D NV, Oct. 7, 2010), a Nevada federal district court permitted a prisoner to move ahead with due process and free exercise challenges to delays by prison officials in recognizing Vedantu/Kashmir Shavism as a religion and in approving various items, including prayer beads, to allow him his religious observances.

Complaint Says Roommate Ad On Church Bulletin Board Violates Fair Housing Act

WOOD-TV News and Fox News report on a complaint filed (full text) with the Michigan Department of Civil Rights over an ad that a woman posted on her church's bulletin board seeking a Christian roommate.  The Fair Housing Center of West Michigan filed the complaint against a 31-year old Grand Rapids (MI) woman after someone in the congregation complained about the ad. A Fair Housing Center spokesperson says that the woman has the right to limit renting out to Christian roommates, but it is a violation of law to advertise publicly using religious criteria. The federal Fair Housing Act, 42 USC Sec. 3604 provides that it is unlawful:

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

An Alliance Defense Fund attorney representing the woman charged with the FHA and Michigan Civil Rights Act violations said: "Christians shouldn't live in fear of being punished by the government for being Christians. It is completely absurd to try to penalize a single Christian woman for privately seeking a Christian roommate at church -- an obviously legal and constitutionally protected activity." [Updated]

Geert Wilders Trial Halted Over Bias of Judicial Panel

The London Guardian reports that on Friday the trial in the Netherlands of far-right political leader Geert Wilders was halted as a separate panel of judges ruled that the panel hearing hate speech charges against Wilders was biased. Wilders is charged with inciting hatred and discrimination against Muslims after urging that the Qur'an be banned (see prior posting) and production of a film titled Fitna.  Distributed online, the video equates Islam with violence. (See prior posting.) The move to disqualify the judicial panel came after it refused to permit Wilders to call as a witness a Dutch professor of Arabic studies, Hans Jansen.  Originally the Dutch prosecution service refused to file charges against Wilders, but an appeals court ordered charges to be brought. (See prior posting.) Now it appears that Tom Schalken, one of the appeals court judges who was involved in issuing that order, had dinner with Prof. Jansen and tried to convince him of the correctness of the decision to press charges against Wilders.

Fired Muslim Truck Driver Sues For Failure To Accommodate Religious Beliefs

Philadelphia Daily News on Friday reported on an employment discrimination lawsuit filed in federal court in Pennsylvania by a Muslim man who was fired from his job as a truck driver because he refused to transport a shipment of Miller Lite beer.  Plaintiff Vasant Reddy claims that when he was hired, Schneider National, Inc. told him they could accommodate his religious objections to transporting alcohol or tobacco. However two days after Reddy refused to transport a shipment of alcohol, he was told to resign or be fired.  Reddy's attorney claims that accommodation would not be difficult because less than 5% of Schneider National's shipments are of alcoholic beverages.

Catholics' Challenge To Critical San Francisco Resolution Dismissed By En Banc 9th Circuit

In Catholic League for Religious and Civil Rights v. City and County of San Francisco, (9th Cir., Oct. 22, 2010), the U.S. 9th Circuit Court of Appeals yesterday, en banc, dismissed a lawsuit brought by the Catholic League and two individual Catholics challenging on Establishment Clause grounds a resolution passed by the San Francisco (CA) Board of Supervisors. The Resolution, adopted in in 2006, "urg[ed] Cardinal William Levada ... to withdraw his discriminatory and defamatory directive that Catholic Charities of the Archdiocese of San Francisco stop placing children in need of adoption with homosexual households." A 3-judge panel of the 9th Circuit had dismissed the case. (See prior posting.)  A majority of the eleven judges of the 9th Circuit en banc agreed that the case should be dismissed-- 5 would dismiss on standing grounds (without reaching the merits) and 3 would dismiss on the merits.  Conversely 6 judges concluded that the plaintiffs had standing, but only 3 concluded that plaintiffs should have prevailed on the merits.

Judge Kleinfield, joined by Judges Thomas, Silverman, Clifton, Bybee and Ikuta, comprised the majority finding standing.  Judge Kleinfield wrote:

The standing question, in plain English, is whether adherents to a religion have standing to challenge an official condemnation by their government of their religious views, and official urging by their government that their local religious representative defy their church. Their “personal stake” assures the “concrete adverseness” required.... Plaintiffs aver that not only does the resolution make them feel like second-class citizens, but that their participation in the political community will be chilled by the City’s hostility to their church and their religion.

Judge Graber, joined by Chief Judge Rymer and Judges Kozinski, Hawkins and McKeown would have dismissed on standing grounds. Judge Graber wrote:

I agree with the District of Columbia Circuit that, "[w]hen plaintiffs are not themselves affected by a government action except through their abstract offense at the message allegedly conveyed by that action, they have not shown injury-in-fact to bring an Establishment Clause claim."

On the merits, Judge Silverman, in an opinion joined by Judge Bybee and Ikuta, concluded:

duly-elected government officials have the right to speak out in their official capacities on matters of secular concern to their constituents, even if their statements offend the religious feelings of some of their other constituents. The key here is that the resolution in question had a primarily secular purpose and effect and addressed a matter of indisputably civic concern.

However Judge Kleinfield, joined by Judges Thomas and Clifton, wrote:

We have not found another Establishment Clause case brought by people whose religion was directly condemned by their government.... For the government to resolve officially that "Catholic doctrine is wrong," is as plainly violative of the Establishment Clause as for the government to resolve that "Catholic doctrine is right."

SF Appeal today reports on the decision. [Corrected].