Workers Comp Denial Did Not Violate Free Exercise Rights

In Lippert v. Lumpkin, (OH App, Nov. 29, 2010), an Ohio appellate court rejected an employee's claim that his free exercise rights were violated when the state denied him unemployment compensation benefits after he was terminated for refusing to work at the employer's site rather than from home on Sundays. The court observed:

appellant offers no evidence addressing the sincerity of his beliefs or describing how the work schedule infringes upon his constitutional right to freely engage in his religion, other than stating that he irregularly attends church on Sunday. There is no evidence in the record describing the tenets of appellant's religion, the sincerity of his religious beliefs, whether Sunday church service is integral to his religious practices, or if no alternative means of worship are available such as services only being offered during his working hours on Sunday.... Moreover, there is no indication that appellant informed [his employer] that the new schedule would interfere with his religious practices.

As Hanukkah Begins, Palestinians Deny Jewish Origins of Western Wall; U.S. Responds

Tonight begins the eight-day Jewish festival of Hanukkah which commemorates the rededication of the Second Temple in Jerusalem by the Maccabees in 165 BCE. Last week, leading up to the holiday, the Palestinian Authority Ministry of Information published as an official paper a study claiming that the Western Wall is part of Al-Aksa Mosque and Haram al-Sharif, rejecting Jewish claims to the site that Jews revere as the remains of the wall that surrounded the original Temple courtyard.  According to the Jerusalem Post, the PA paper claims that Al- Buraq Wall (as the Western Wall is known to Muslims) is property of the Waqf and is owned by an Algerian- Moroccan Muslim family. The study claims: "This wall was never part of the so-called Temple Mount, but Muslim tolerance allowed the Jews to stand in front of it and weep over its destruction."

In a U.S. State Department press briefing yesterday (full text), Assistant Secretary William J. Crowley said:

[R]egarding a claim by a senior Palestinian official that the Western Wall is an Islamic Waqf, we strongly condemn these comments and fully reject them as factually incorrect, insensitive, and highly provocative. We have repeatedly raised with the Palestinian Authority leadership the need to consistently combat all forms of delegitimization of Israel, including denying historic Jewish connections to the land. As the United States has long maintained, the status of Jerusalem must be resolved in final status negotiations between the parties. We recognize that Jerusalem is a deeply important issue to Israelis and Palestinians, to Jews, to Muslims, and to Christians everywhere. We believe it is possible to reach an outcome that both realizes the aspirations of all parties for Jerusalem and safeguards its stature for the future.

Virginia Federal District Court Rejects Constitutional Challenges To Obama Health Care Law

Yesterday in Liberty University, Inc. v. Geithner, (WD VA, Nov. 30, 2010), a Virginia federal district court rejected a broad range of constitutional challenges to the Patient Protection and Affordable Care Act of 2009 (the Obama health care reform bill). In addition to broadly upholding the statute as a valid exercise of Congress' commerce clause power, Judge Norman K. Moon, in a 54-page opinion, also rejected free exercise and establishment clause challenges by various of the plaintiffs. On the commerce clause issue, the court wrote:

I hold that there is a rational basis for Congress to conclude that individuals's decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.... [and] that the terms of health coverage offered by employers to their employees have substantial effects cumulatively on interstate commerce.

The court went on to reject Establishment Clause challenges to the Act's religious conscience exemption and its health care sharing ministry exemption. Both were seen as permissible religious accommodations. It also rejected plaintiffs' claim that the Act requires them to violate their sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions.  The court said:

[Plaintiffs] fail to allege how any payments required under the Act ... would be used to fund abortion. Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered.

Reuters reports on the decision. In a post by Stephanie Cutter, Assistant to the President, the White House reacted, saying: "In the weeks ahead, there will be additional court cases examining this matter and the health reform law. We can’t predict the outcome of each case, but we are confident that we will ultimately prevail in court and continue to deliver the benefits of reform to the American people."

Liberty Counsel, representing plaintiffs, issued a release saying that an appeal will be filed. Judge Moon's decision comes less than a week after the New York Times speculated in a lengthy article that another Virginia federal district court judge, Judge Henry E. Hudson,  in a separate case-- a challenge filed by the state of Virginia-- is likely to find the statute unconstitutional.

Final Approval Given In Settlement of Charges Against Ohio Science Teacher

The final chapter in the litigation involving Mt. Vernon, Ohio suspended middle school science teacher John Freshwater seems to have been written last week.  The Mount Vernon News reported yesterday that the Licking County Probate Court has approved on behalf of student Zachary Dennis a previously reported federal court settlement agreement under which Freshwater agreed to pay $300,000 to parents Stephen and Jennifer Dennis, another $150,000 for an annuity for student Zachary Dennis and $25,000 for legal fees.  The lawsuit grew out of widely-publicized charges that Freshwater taught creationism or intelligent design in class, told his class that anyone who is gay is a sinner, improperly used an electrostatic device to put a cross on the arm of a student, was excessively involved in the school's Fellowship of Christian Athletes and was insubordinate in failing to remove religious materials when ordered to do so by his principal. (See prior posting.) Originally school officials had also been sued, but it settled in 2009. (See prior posting.) A counter suit by Freshwater against the school board was dropped in October. (See prior posting.) [Thanks to National Center for Science Education for the lead.]

Michigan Officials File No Charges In Unusual Qur'an Burning Case

Sunday's Lansing (MI) State Journal carries an interesting article about prosecutors who decided not to file charges in an unusual Qur'an burning case. A 46-year old East Lansing, Michigan resident who was merely scraping by economically went out on the eve of this year's 9-11 anniversary, riding his mountain bike, and got drunk.  He says his wife doesn't allow him to get drunk in the house.  He carried with him a copy of the Qur'an. After he stopped 5 or 6 times for beer, he went down by railroad tracks, ripped pages out of the Qur'an and burned them. Then he rode by the local Islamic Center on his bike and tossed the burnt pages on the sidewalk. He bragged about what he did on Facebook, using as his profile picture one of the controversial Muhammad Danish cartoons. He turned himself in to police at his wife's urging, telling them that he was still "pissed off" about 9-11 and wanted to make a statement of disrespect.

East Lansing prides itself on being a diverse community However ultimately authorities decided not to file charges since the man-- still not identified publicly-- did not damage anyone else's property. He made no physical contact with anyone and the Qur'an he burned was his own. The only possible charges were ethnic intimidation (unclear on these facts) or littering (which would trivialize the incident). Charging the man would make his identity public for the first time. Lansing's assistant city attorney said he was also affected by the fact that police received e-mails from extremists on both sides. He asked: "Do we really want to endanger this person's life for a littering charge?" The local Islamic community has reluctantly accepted the prosecutors' decision. [Thanks to Ken Braithwaite for the lead.]

Pentagon's DADT Report Includes Consideration of Moral and Religious Objections

Today the Defense Department released its Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell". Overall the report concluded that "when coupled with the prompt implementation of the recommendations we offer ..., the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low."  The Report gives significant attention to moral and religious objections to repeal. The Executive Summary of those concerns reports:

In the course of our review, we heard a large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay.  Some feared repeal of Don’t Ask, Don’t Tell might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality.  The views expressed to us in these terms cannot be downplayed or dismissed.  Special attention should also be given to address the concerns of our community of 3,000 military chaplains.  Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplain corps.  A large number of military chaplains (and their followers) believe that homosexuality is a sin and an abomination, and that they are required by God to condemn it as such.

However, the reality is that in today’s U.S. military, people of sharply different moral values and religious convictions—including those who believe that abortion is murder and those who do not, and those who believe Jesus Christ is the Son of God and those who do not—and those who have no religious convictions at all, already co-exist, work, live, and fight together on a daily basis.  The other reality is that policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate.  Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.

Within the chaplain community, the solution to this issue can be found in the existing guidance developed by and for our chaplains, which we believe should be reiterated as part of any education and training concerning repeal.  Those regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and a chaplain’s duty to care for all.  Existing regulations state that chaplains “will not be required to perform a religious role...in worship services, command ceremonies, or other events, if doing so would be in variance with the tenets or practices of their faith.”  At the same time, regulations state that “Chaplains care for all Service members, including those who claim no religious faith, facilitate the religious requirements of personnel of all faiths, provide faith-specific ministries, and advise the command.”

Extensive additional discussion of religious objections  is found at pp. 134- 136 of the Report and in the Findings from the Qualitative Research Tasks, pp. 2, 15, 22-23, 71-72, 125-26, 135-37.  The Report along with additional supporting material is available at a special DOD web page devoted to DADT. The New York Times reports generally on today's developments.

Federal Court Issues Preliminary Injunction Against Oklahoma Anti-Shariah Amendments

Yesterday an Oklahoma federal district court issued a preliminary injunction barring the Oklahoma State Board of Elections from certifying the election results for State Question 755-- the state constitutional amendment that would prevent Oklahoma courts from considering international law or Shariah law. (See prior posting.)  In Awad v. Ziriax, (WD OK, Nov. 29, 2010), the court found that plaintiff, a Muslim, has standing to challenge the amendment because he has suffered injury in fact:

Plaintiff has sufficiently set forth a personal stake in this action by alleging that he lives in Oklahoma, is a Muslim, that the amendment conveys an official government message of disapproval and hostility toward his religious beliefs.... [I]t would be incomprehensible if, as plaintiff alleges, Oklahoma could condemn the religion of its Muslim citizens, yet one of those citizens could not defend himself in court against his government’s preferment of other religious views.

Second, plaintiff claims that his First Amendment rights will be violated by the invalidation of his last will and testament which incorporates various teachings of Mohammed. 

The court went on to find that plaintiff's facial challenge to the amendment is ripe for review.  Finally the court concluded that plaintiff had made a strong showing of the likelihood of success on his Establishment Clause claim:

While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff’s faith....

Additionally, the Court finds that plaintiff has made a strong showing that the amendment will foster an excessive government entanglement with religion. Because, as set forth above, Sharia Law is not “law” but is religious traditions that differ among Muslims, the Court finds that plaintiff has shown that to comply with the amendment, Oklahoma courts will be faced with determining the content of Sharia Law, and, thus, the content of plaintiff’s religious doctrines.

The Oklahoman reports on the decision.

UPDATE: On Tuesday, the Oklahoma State Election Board voted to appeal the district court's ruling. (Fox News 11/30).

Indian Court Says Census Information On Religion of Public Figures Is Confidential

In India, the Punjab and Haryana High Court yesterday ruled that the 2005 Right to Information Act does not authorize disclosure of the religion that an individual listed on his or her census form. Law et al News reports that  the case grew out of a request by an individual for information about the religion listed by United Progressive Alliance Party leader Sonia Gandhi and her family members. Section 15 of the Census Act of 1948 protects the confidentiality of census records. The court held that the later Right to Information Act did not change that protection because the RTI Act excludes from disclosure information that has no relationship to any public activity or interest. The court rejected the argument that disclosure of information about the religion of leaders of the nation is in the public interest.

Brooklyn Cop Forces Rabbi To Write On the Sabbath

Yesterday's New York Post reports on a run-in between a 27 year old Orthodox rabbi and Brooklyn police when Rabbi Sholom Emert was stopped for jaywalking after sundown on Friday.  Because the rabbi could not carry on the Sabbath, he had no identification. He offered to show his ID to the police if they would accompany him home. The police officer instead told him that he must write down his name.  Writing also violates the Sabbath, but the rabbi complied under threat of otherwise being detained.  Rabbi Emert says this is the first time in his life that he has broken the Sabbath.

Traditional Marriage Group Cannot Intervene In DOMA Challenge

In Benson v. Alverson, (MN Dist Ct., Nov. 24, 2010), a Minnesota state trial court denied a motion filed by the Minnesota Family Council seeking leave to intervene in a lawsuit challenging Minnesota' Defense of Marriage Act.  Plaintiffs in the case are three same-sex couples and the minor children of one of the couples. The Council is organized to defend traditional marriage, based on Judeo-Christian principles. The court concluded that lobbying for a law does not give an organization a sufficient interest to be entitled to intervention as of right.  In addition, the court concluded that the Council lacks standing to intervene in the case:

[A]lthough the Council attempts to cloak its interest in the nomenclature of organizational injuries and interest, the alleged interest is simply the expression of a desire that the DOMA as written be obeyed. The Council believes that same-sex marriage would harm society, but the Court finds no precedent equating societal non-economic harm to a private organization's injury-in-fact.

The Council had argued that if DOMA is struck down, it will have to divert resources to a campaign to restore a ban on same-sex marriage.  Yesterday's Minnesota Independent reported on the decision.

Religion Clause Chosen In ABA Top 100 Blogs; Voting On For Top 12

I am pleased to announce that Religion Clause has been chosen this year by the American Bar Association as one of the top 100 legal blogs.  Readers can now vote among those 100 for the top twelve-- one in each of the categories designated by the ABA.  To vote for your favorites, click here or on the icon in the side bar.

Pakistan Court Temporarily Bars Pardon For Christian Woman Sentenced To Death For Blasphemy

In Pakistan today, the Lahore High Court issued a temporary stay barring Pakistani President Asif Ali Zardari from issuing a pardon to Aasia Bibi (also known as Aasia Noreen), a Christian woman who has been sentenced to death on blasphemy charges. (See prior posting.) Continental News and Sify News report that the order comes after Bibi filed a clemency appeal with the President through the Governor of Punjab, Salman Tasseer. Tasseer, who believes the charges against Bibi were fabricated, assured her of a sympathetic response. However hard line Islamic parties began protests against the governor and any pardon. The court ruled that because the case was still in the courts, any pardon would be premature, and ordered the President and the Punjab governor to reply by December 6 when another hearing is scheduled.

Utah High Court Won't Block Jeffs' Extradition To Texas

Last week, the Utah Supreme Court refused to block the extradition of FLDS leader Warren Jeffs to Texas to face bigamy and sexual assault charges.  Washington Post  and Deseret News reported last week that the Utah high court issued a brief order lifting the stay on extradition that had been imposed by the Court of Appeals and cleared the way to implement the extradition agreement signed by the governors of Utah and Texas. Jeffs has previously been convicted of rape as an accomplice in Utah, but the Utah Supreme Court reversed the conviction because of faulty jury instructions. (See prior posting.) Jeffs argued that extradition while his case is on remand to the trial court will deny him a speedy trial. He also objected to provisions in the extradition agreement that would deny him bail in Texas. [Thanks to Modern Pharisee for the lead.]

All-Day Holiday Music Will Play Again This Year In Arizona Jail

In Phoenix, Arizona, Sheriff Joe Arpaio plans again this year to play Christmas music over speakers in his county jail for 12 hours a day. The Washington Times reports that the music will begin today with the playing of "Rudolph the Red Nosed Reindeer", Frosty the Snowman" and "Feliz Navidad.".  The sheriff has prevailed in six lawsuits-- most recently in December 2009-- in which inmates challenged the practice as a violation of their religious rights and as cruel and unusual punishment. So again this year, 8,000 inmates will hear multi-ethnic and culturally diverse holiday music all day during the holiday season. Apparently they can avoid the music only by remaining in their cells. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

Ban On Kosher Slaughter of Poultry In New Zealand Lifted After Disclosure of Improper Considerations By Agriculture Minister

According to today's Jerusalem Post, two days before a scheduled court trial on New Zealand's ban on kosher slaughtering, the parties have reached a settlement that allows kosher slaughter of poultry to resume. The government has also agreed to negotiate on kosher slaughtering of sheep. As a practical matter, kosher beef and most kosher mutton is imported from Australia anyway. The ban was put in place because of concern that kosher slaughtering takes place without the animals first being stunned. (See prior posting.) A temporary stay during pending litigation was entered in August. (See prior posting.)

According to today's New Zealand Herald, the government's change of heart came after it was disclosed in a High Court opinion released Friday that Agriculture Minister David Carter had a conflict of interest and improperly considered trade issues when originally imposing the ban. The opinion also indicated that Carter was unaware that kosher chicken could not be imported and that importing kosher lamb was very expensive.  Carter owns shares in two companies that export meat to Muslim countries.  New Zealand requires stunning of halal slaughtered animals, a practice to which some Muslims object. Officials of Silver Fern Farms, one of the  companies in which Carter holds shares, told Carter that their trade with Muslim countries would be adversely affected if the country allowed kosher slaughter to proceed without stunning, but required it for halal meat.

Hindu Group Seeks To Reclaim Religious Roots of Yoga

Today's New York Times carries a front page article on the efforts by the Hindu American Foundation to acquaint Americans with the Hindu religious foundations of yoga.  Its "Take Back Yoga" campaign has created a controversy over whether the roots of yoga pre-date Hinduism. Dr. Aseem Shulka, co-founder of the Hindu American Foundation, says that Hinduism has become a victim of "overt intellectual property theft" through yoga teachers who have commercialized the religion's spiritual wealth.

Recent Prisoner Free Exercise Cases

In Luke v. Willliams, 2010 U.S. Dist. LEXIS 123752 (D OR, Nov. 18, 2010), an Oregon federal district court dismissed an Intensive Management Unit prisoner's claims that correctional facility employees infringed his free exercise, RLUIPA and equal protection rights by interfering with his ability to practice Wicca. He alleged they denied him the ability to bring religious items into the prison yard, did not have a full time Wicca volunteer and denied him books from the general population Chapel Library and items from the Internet.

In Zajrael v. Harmon, 2010 U.S. Dist. LEXIS 123829 (D AR, Nov. 22, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 123780, Nov. 10, 2010) and dismissed claims that an inmate's free exercise rights and his rights under RLUIPA were infringed when authorities confiscated from his cell religious books and study materials in excess of the number of books permitted for prisoners in administrative segregation.

In Stilton v. Albino, 2010 U.S. Dist. LEXIS 124717 (D NJ, Nov. 23, 2010), a New Jersey federal court rejected an inmate's free exercise claim that for 12 days he was denied access to his personal property, including his Bible.

Rabbi Hoping To Be First Jew Elected To Uganda's Parliament

The London Jewish Chronicle reported yesterday that in Uganda, a 41-year old rabbi hopes to become the first Jewish member of Uganda's parliament. Rabbi Gershom Sizomu, who grew up in the country under Idi Amin, hopes to win a seat in February's elections to represent the area of Bungonkho North in the city of Mbale.  Sizomu is a member of the Abayudaya Jewish community founded by a military chieftain 91 years ago. Sizomu's campaign is centered on raising medical standards.  His campaign manager is a Muslim.  Some supporters of Sizomu's Muslim opponent are using religion as an issue-- urging residents to vote for a fellow-Muslim and raising fears that Sizomu could convert many Muslims to Judaism.

British Teen Charged After Facebook Posting of Her Burning Qur'an

The London Guardian yesterday reported that a 15-year old girl from a town near Birmingham has been arrested on suspicion of inciting religious hatred after she posted on Facebook a video of her burning an English language translation of the Qur'an. She has been released on bail. The video has now been removed and the incident was reported to the girl's school where it took place with other students looking on.