Recent Articles Of Interest

From SSRN:

• Mary Jean Dolan, Salazar v. Buono: The Cross Between Endorsement and History, (Northwestern University Law Review Colloquy, Vol. 105, p. 42, 2010).
• Mary Jean Dolan, P.S. Untold Stories and the Cross National Monument, (October 26, 2010).
• Haider Ala Hamoudi, Ornamental Repugnancy: Identitarian Islam and the Iraqi Constitution, (St. Thomas University Law Review, Forthcoming).
• Rohen Peterson, The Emperor’s New Scanner: Muslim Women at the Intersection of the First Amendment and Full Body Scanners, (Hastings Women’s Law Journal, Forthcoming).

From SmartCILP:

• Robert J. Friedman, Religious Discrimination in the Workplace: The Persistent Polarized Struggle, 11 Transactions: Tennessee Journal of Business Law 143-165 (2010).
• Armany R. Hacking, A New Dawn for Muslims: Asserting Their Civil Rights in Post-9/11 America, 54 St. Louis University Law Journal 917-941 (2010).
• Steven D. Smith, Why Is Government Speech Problematic? The Unnecessary Problem, The Unnoticed Problem, and the Big Problem, 87 Denver University Law Review 945-970 (2010).
• Tom R. Tyler, Stephen Schulhofer & Aziz Z. Huq, Legitimacy and Deterrence Effects in Counterterrorism Policing: A Study of Muslim Americans, 44 Law & Society Review 365-401 (2010).

Recent Prisoner Free Excercise Cases

In Lockamy v. Dunbar, (5th Cir., Oct. 29, 2010), the 5th Circuit Court of Appeals rejected an inmate's claim that his rights under RLUIPA were violated by officials' classification of pages he tore out of a religious magazine as contraband and their refusal to mail them out for him.

In Shepherd v. Wenderlich, 2010 U.S. Dist. LEXIS 114269, (ND NY, Oct. 26, 2010), a New York federal district court applying the fee award limitations in the Prison Litigation Reform Act awarded attorneys' fees of $1.50 in a case in which an inmate recieved only nominal damages for a violation of his free exercise rights.

In Williams v. Mathena, 2010 U.S. Dist.LEXIS 113273 (WD VA, Oct. 25, 2010), a Virginia federal district court held that an inmate failed to show that prison officials knowingly placed a substantial burden on his free exercise of religion by taking several weeks to adjudicate his religious food request.

British Government Says Church of England Is Not Preventing Bogus Marriages

British government officials are accusing the Church of England of failing to take sufficient steps to prevent bogus marriages of foreigners to British citizens.  Marriage gives the foreign spouse the right to stay in Britain and claim government benefits.  Yesterday's London Telegraph reports that the number of Church marriages of foreigners to British citizens has nearly tripled since 2005 when new rules were adopted to require Home Office approval for marriages of foreigners in civil ceremonies, but not for marriages performed by the Church of England. (See prior related posting.)

Atheist Group Forms In Russia To Support A Secular Russian Society

Yesterday's Georgian Daily reports that in Russia, a group of atheists has come together to form the "Sanity Public Foundation." The new organization is designed to support and defend the secular character of the Russian state. Art. 14 of the Russian Constitution declares: "1. The Russian Federation is a secular state. No religion may be established as a state or obligatory one." The new group says it wants to call attention to the increasing "clericalization" of Russian society. It will adapt the international Atheist Bus Campaign to Russian conditions, which means driving around Moscow with signs advocating secularism posted on cars.

Malaysian Court Allows Women's Rights Group To Call Themselves "Sisters in Islam"

AFP reports that yesterday a court in Malaysia dismissed a lawsuit seeking to keep a vocal women's rights group from using the name "Sisters in Islam."  The suit was filed by the Malaysian Assembly of Mosque Youth who claimed that the title used by the women's group was confusing to Muslims. They argued that the women's group should operate under its legally registered name--- SIS Forum Malaysia.  The court held that plaintiffs lacked standing to file the complaint.

British City Council Says Christian Views Opposing Gay Rights Disqualifies Couple As Foster Parents

In Britain, a High Court hearing is scheduled to begin on Monday in a challenge to action taken by the Derby City Council to disqualify as potential foster parents a Christian couple who believe that homosexuality is unacceptable. Today's London Telegraph reports that the action was taken after a social worker discovered Eunice and Owen Johns' views. Those views would mean that the Johns could never tell a child that homosexuality is acceptable. In the past, the Johns have acted as foster parents to nearly 20 children. The gay rights group, Stonewall, backs City Council's action, saying that it is the interests of the child, not the prejudices of the parent, that count.  However the Christian Legal Centre that represents the Johns says that

One of the issues before the Court is whether Christian couples, who have traditional views on sexual ethics, are ‘fit and proper persons’ to foster - and, by implication, adopt. That the Court even needs to consider this is a remarkable reversal in the concept of the public good and the traditional definition of sexual morality.

Yesterday Was Anniversary of Cylinder of Cyrus the Great

The Circle of Ancient Iranian Studies reminds us that yesterday was the International Day of Cyrus the Great. On October 29, 539 BCE, the Persian king, Cyrus, ordered what some have called the first human rights decree  to be inscribed on a clay cylinder.  The Cyrus Cylinder describes the king's policy of allowing local cults to return their gods to their shrines. It also makes specific reference to the Jews who Cyrus encouraged to return from their exile in Babylon to Judea to rebuild the Temple in Jerusalem.

Court Upholds Biblically-Based Mediation Agreement

In Woodlands Christian Academy v. Weibust, (TX App., Oct. 7, 2010), a Texas appellate court upheld an arbitration clause in an employment agreement requiring disputes to initially be submitted for settlement by Biblically-based mediation. It rejected arguments that the agreement is unconscionable because it requires "biblical scripture" to be substituted for the law of the case. BNA Daily Labor Report [subscription required] reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Philippine Tour Guide Pleads Not Guilty To Offending Religious Feelings

In the Philippines, Carlos Celdran, a tour guide and reproductive health activist, yesterday plead not guilty to charges of violating Section 133 of the Philippines Revised Criminal Code which imposes criminal penalties on "anyone who, in a place devoted to religious worship or during the celebration of any religious ceremony shall perform acts notoriously offensive to the feelings of the faithful." Both the Philippine Daily Inquirer and GMA News.TV report that the charges against Celdran grew out of a protest he staged in September during an ecumenical service at the Manila Cathedral. Dressed a Philippine national hero Jose Rizal, Celdran shouted inside the Cathedral that the Catholic Church should stop getting involved in politics, objecting particularly to the Church's opposition to enactment of a proposed reproductive health bill. He held up a sign reading "Damasao", referring to the cruel priest in Rizal's novel Noli Me Tangere. Celedran insists he did not say anything offensive when he held up the sign bearing the name of the novel's character who. He appeared in court in his Jose Rizal costume.

State Proclamations On National Day of Prayer Are Upheld

The Chicago Tribune reports that yesterday a Colorado state trial court judge dismissed a challenge to proclamations issued by Gov. Bill Ritter recognizing a National Day of Prayer. The lawsuit, filed by the Freedom from Religion Foundation, alleged that the proclamations violated the religious freedom clause of Colorado's constitution. The court disagreed, saying that the Proclamations did not carry the force of law. (See prior related posting.)

Baptist Group Will Publish Pamphlet Defending Church-State Separation

The Virginia Baptist Mission Board has approved publishing a new "layman-accessible" pamphlet to explain why the separation of church and state is crucial in protecting religious liberty. ABP reported Wednesday that the Board has adopted a resolution asserting that Baptists cannot remain true to their principles if their knowledge or collective memory of the importance of both religious liberty and separation of church and state is altered or replaced by a false version of history.  The Resolution says that systematic efforts have been under way in recent decades to deny the historic basis that made both religious liberty and church-state separation part of the Bill of Rights.

Proposal For National Panels To Oversee Islamic Financial Instruments Draws Criticism

A plan put forward by the Accounting & Auditing Organization for Islamic Financial Institutions (AAOIFI) to create separate national Shariah boards to oversee the sale of Shariah-compliant financial instruments is drawing criticism from lawyers and bankers. Bloomberg reported yesterday that the proposal to appoint panels of experts in each country to rule on whether the instruments comply with the requirements of Islamic law is seen as adding a layer of bureaucracy in the $1 trillion Islamic finance industry. AAOIFI says that the proposal is a move toward standardization in the industry. Advisory boards for separate financial institutions will create products that will then be approved by a single national body, which in turn it hopes will create greater investor confidence.

US Ambassador To Human Rights Council Speaks on Defamation of Religion Proposal

Ambassador Eileen Chamberlain Donohoe, United States Reprentative to the United Nations Human Rights Council on Tuesday addressed the annual human rights luncheon of UN Watch, a Geneva-based human rights organization that monitors the United Nations. (Full text of remarks.)  She used an 8-point action plan that was published by UN Watch earlier this year as the focus of her remarks.  On UN Watch's recommendation that countries oppose efforts to create an international prohibition on defamation of religion, Donohoe said:

Protection of freedom of speech is a core U.S. value, as well as a guiding principle for our engagement at the Human Rights Council.  In fact, we view our participation at the Council as a powerful reflection of our own faith in the power of free speech:  While the issues of religious and racial intolerance entail difficult and divisive debates at the Council, we have deep confidence that over time, our willingness and ability to stand up and articulate our values will translate into results – because we do believe in the power of speech.  We are committed to working with genuine partners on the issues of racial and religious discrimination, including the OIC, but we have made it clear to all parties that we will not, under any circumstances, do so by allowing the advancement of unacceptable limits on the freedom of expression and religion. We will continue to champion protection of these fundamental freedoms throughout our tenure on the Council.

Suit Challenges 2009 Raid On Church of Universal Love and Music

William Pritts, founder of the controversial Church of Universal Love and Music, filed a lawsuit in a Pennsylvania federal district court on Tuesday charging the Fayette County (PA) Drug Task Force with conducting an illegal raid of a church concert last year. (See prior posting.) According to yesterday's Pittsburgh Tribune-Review, the suit claims that the raid-- which resulted in the arrest of 22 music fans on drug charges-- was conducted in a "callous and militaristic fashion" with an overly broad search warrant. 14 co-plaintiffs claim that police lacked probable cause to search them because the warrant carried the wrong address for the church and allowed a search of "all persons present."

Amish Elders Plead Guilty To Violating Child Abuse Reporting Requirement

Missouri Rev. Statutes Sec. 352.400.1 requires any member of the clergy who has supervisory responsibility over those in charge of children to report suspected child abuse to state authorities. In Webster County, Missouri, four Amish elders have been charged with violating the reporting requirements because they knew for six months that a member of one of the county's Amish churches had been molesting two of his children. In fact, the molester was formally shunned by his church.  The attorney for the Amish elders argued that holding the elders liable violates their First Amendment rights, since it is against their religious beliefs to report a brother who has admitted wrongdoing and who has been punished within the community. Explaining that the elders are not affiliated with a formal organization and held no license to perform their duties, defendants' attorney argued that convicting them would be a precedent for entrapping volunteers who are not aware of their reporting duties. However, according to yesterday's South County (MO) Mail, last week the Amish elders plead guilty and were each fined $300 plus court costs.

British Appeals Court Says Teaching Order Not Vicariously Liable For Abuse of Students

In Various Claimants v. Catholic Child Welfare Society, (Eng. and Wales Ct. App., Oct. 26, 2010), England's Court of Appeal held that the Institute of the Brothers of Christian Schools, a lay community of teachers dedicated primarily to educating the poor, is not vicariously liable for physical and sexual abuse of students who attended St. William's, a school where the Headmaster and some of the teachers were supplied by the Brothers. The court concluded that the Institute did not control the school or the manner in which the teachers carried out their work-- prerequisites to vicarious liability.  The court said:

It is certainly true that the Institute's power to regulate the deployment of its members gave it the power to decide who was to be offered to St William's and when anyone currently teaching there should be recalled, and thus required to resign.... But the power to ordain the deployment of the brothers did not give the Institute the power to insist that any particular person should be accepted and employed by the managers. That decision was for them, even if they may often have chosen simply to accept what the Institute proposed....

Brother Reginald, headmaster for 11 years, gave evidence that he pretty well ran the school and that the managers largely let him get on with it. He said that they often did not really know what he was doing. But that could be said of his Board of Governors by a great many strong-willed headmasters, certainly in the 1960s. It shows independence of mind in Brother Reginald, but it comes nowhere near demonstrating that the Institute ran the school through him.... 

Yesterday's London Guardian reports on the decision.

St. Paul City Council Delays Vote To Refine Church-State Protections In Development Project

Yesterday's Minneapolis Star Tribune reports that the St. Paul (MN) City Council has delayed it vote to approve a draft agreement for a $36 million community center project that involves church as part of the plans. The proposed Payne-Maryland Project will include a city-run library, recreation center and performing arts center, but also a privately run funeral home and a building for  the Arlington Hills Lutheran church.  The ACLU has requested project documents. There is to be a strict separation between city and church spaces, and no funds raised by city bonds can be used for religious instruction or worship. The delay however is to work further on the indemnification provisions designed to protect project partners from liability in any church-state challenge to the plans.

Japanese Court Rejects Suit By Relatives of War Victims Enshrined At Yasukuni

In Naha, Japan on Tuesday, a three-judge district court panel rejected claims by relatives of war victims against the government and a Shinto shrine in a lawsuit alleging unauthorized "collective enshrinement" of plaintiffs' relatives. The enshrinement took place at the Yasukuni Shrine in central Tokyo. Yasukuni has enshrined most of the 2.5 million Japanese soldiers and civilian employees who died in various wars since the mid-19th century. However, the shrine is controversial because included among those are 14 Class-A World War II war criminals, such as Prime Minister Hideki Tojo. In its decision this week, the court concluded that even if the enshrinement took place without the consent of the deceased victims' relatives, the action did not damage plaintiffs' reputations or infringe their freedom of religion. According to Tuesday's Mainichi Daily News, plaintiffs sought to have their deceased relatives removed from the list of those enshrined at Yasukuni because they objected to their identification with the war criminals also honored there. The court also rejected plaintiffs' demand for damages for the mental suffering they experienced. The government in the lawsuit claimed that it was not involved in the collective enshrinement, but merely furnished names of war dead to the shrine. (See prior related posting.)

Injunction Granted To Permit Elementary Student's Distribution of Church Flyers To Classmates

In J.S. v. Holly Area Schools, (ED MI, Oct. 26, 2010), a Michigan federal district court concluded that a preliminary injunction should issue to guarantee an elementary school student the right to distribute religious flyers and invitations to a church summer camp to his classmates, so long as he distributes them in a manner that does not disrupt normal school activities. The school's across-the-board ban on student-to-student distribution of materials during the school day is not a reasonable time, place and manner regulation of student speech.  The court also concluded that the student's mother had wrongfully been denied access to the school's "flyer forum" through which she wanted to communicate with other parents about church activities. Her flyers were rejected on the basis of the viewpoint they expressed. Alliance Defense Fund issued a press release announcing the decision. (See prior related posting.)

Science Teacher Settles Establishment Clause Lawsuit By Student

Details have now become available of a previously reported settlement in an Establishment Clause lawsuit brought on behalf of a student against Mount Vernon, Ohio middle school science teacher John Freshwater. Freshwater posted the Ten Commandments in his classroom, kept a Bible on his desk, and allegedly engaged in a science experiment that resulted in a mark in the shape of a cross being placed on the student's arm. Yesterday's Mount Vernon (OH) News reports that the settlement in the federal court lawsuit still requires approval by a state probate court judge (see Ohio Rev. Code Sec. 2111.18). As part of the settlement, the student's parents (plaintiffs in the case) agreed to forgo recovery of sanctions awarded to them by a federal district judge after Freshwater failed to comply with various court orders. Under the settlement, the school district's insurance company will pay $300,000 to the parents for mental pain and other suffering, and separately $150,000 will be paid over the next 13 years to buy an annuity for Zach Dennis, the student on whose behalf the suit was filed. Finally $25,000 in attorneys' fees will be paid to plaintiffs' counsel. Last week, Freshwater asked a federal court to dismiss his free exercise of religion lawsuit against the Mt. Vernon school board. (See prior posting.)