No State Action In Alleged Slander By Pastor

In Cohn v. Freeman, 2010 U.S. Dist. LEXIS 128104 (WD NC, Nov. 22, 2010), a North Carolina federal district court dismissed a free exercise claim (as well as a claim for slander) brought pro se by plaintiff Debra Cohn who claimed that defendant, a pastor at Mt. Zion Restoration Church, told her son that his now deceased father believed that Cohn was trying to kill him. The pastor warned the son not to eat anything that Cohn prepared because she might be trying to poison him also. Following these events, Cohn stopped attending Mt. Zion Church. In dismissing the First Amendment claim, the court concluded both that defendant was not acting under color of state law nor did Cohn allege that she was asked or forced to leave her church.

Elaborate Sikh Community Dispute In Court In Canada

Today's Windsor (ON) Star reports on a law suit that has a Canadian court in the middle of a factional dispute at a Sikh Gurdwara in Windsor, Ontario. A power struggle among leaders of the Sikh Cultural Society of Metropolitan Windsor began in 2009 when a new executive was proclaimed.  The old officers refused to relinquish power and revoked membership of the newly elected officials. According to the paper's report: "Police have been called to the temple after heated arguments. One new member of the temple's executive committee says he was physically attacked in the driveway of his home while another says shots were fired at his house."

Three court orders have now been entered in the dispute. In the first order, the court reinstated the newly elected officers. On Monday the court issued a restraining order barring the old leaders from going within one kilometer of the Gurdwara Khalsa Parkash unless they are attending religious services.  They must give up possession of the premises and may not pass themselves off as authorized to represent the Society. Finally, 25 people named in the restraining order may not go within one kilometer of the homes of the new executive members. The contentiousness has led enough of the new board member to resign that the executive does not have a quorum. So in March the court will begin going through the membership records to determine who is a bona fide member entitled to vote for new executive members.

Changes To Pakistan's Blasphemy Law Challenged

According to M and C, a Pakistani court yesterday temporarily blocked action on government-proposed amendments to relax the country's blasphemy laws while the court considers a citizen's petition claiming that Parliament does not have a constitutional right to amend the country's laws relating to religion.  Meanwhile according to Cath News India, the Anglican Bishop of Lahore has criticized a proposed change to Pakistan’s blasphemy law that would outlaw insulting the Christian religion. Debate over the blasphemy law has increased since a Punjab district court sentenced a Christian woman, Asa Bibi, to death on blasphemy charges. (See prior posting.) Anglican Bishop Alexander John Malik said: "Jesus does not need a worldly law for His honor. We reject such a notion because extremists can take advantage of it."

Saudi Religious Police Say New Plan Works To Combat Deviant Extremist Ideology

According to a report yesterday by Asharq Alawsat, the Director of Saudi Arabia's Commission for the Promotion of Virtue and the Prevention of Vice told a meeting of branch directors in Khobar Saturday that the Commission has begun to implement a plan to combat deviant extremist and hard-line ideology. The director, Dr.Abdul Aziz al-Humain said that "the CPVPV has played a supporting role in the efforts exerted by the Interior Ministry's security apparatus…and CPVPV members are participating in the Munasaha rehabilitation program for followers of deviant ideology...."

UN Third Committee Approves Defamation of Religions Resolution By Smaller Margin Than Last Year

Baptist Press reports that on Nov. 23,the United Nations Third Committee of the General Assembly approved a defamation of religions resolution (full text), but by a significantly smaller margin than last year.  The vote on the resolution this year was 76- 64 with 42 abstentions. Last year the vote was 81- 55.  The U.S. Commission on International Religious Freedom in its Fall Policy Focus discusses why the U.S. and others have oppose this resolution that has repeatedly been introduced by the Organization of the Islamic Conference. This year's resolution mentions "Judeophobia" and "Christianophobia" as well as Islamophobia as evils to be combatted. The U.N.General Assembly will vote on the resolution later this month.

9th Circuit Hears Oral Arguments In Challenge To California's Proposition 8

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Perry v. Schwarzenegger, the constitutional challenge to California's Proposition 8 that barred same-sex marriage. A video recording of the two hours of argument-- the first half on standing, the second on the merits-- is available from the court's website. Silicon Valley Mercury News reports on the oral arguments, saying that the court "appeared generally inclined to support the right of same-sex couples to marry in California. But how the judges reach that historic conclusion remains quite unpredictable." Scotus blog has an excellent summary of the oral arguments.

Meanwhile leaders of 26 religious groups across the country yesterday issued a letter titled "The Protection of Marriage: A Shared Commitment," in which they affirm their "shared commitment to promote and protect marriage as the union of one man and one woman."  Among the groups endorsing the letter are the National Association of Evangelicals, the Church of Jesus Christ of Latter Day Saints, the Union of Orthodox Jewish Congregations, the US Conference of Catholic Bishops, the National Hispanic Christian Leadership Conference, the Orthodox Church in America and the World Sikh Council. (Backgrounder on letter from Catholic Bishops.)

Paper Profiles FBI's Use of Informant To Infiltrate California Mosque

Yesterday's Washington Post carried a long article on the FBI's use of a convicted forger, Craig Monteilh, as an undercover informant who infiltrated an Islamic Center in Irvine, California to look for potential terrorists.  His tactics, however, backfired as Muslims at the mosque, concerned about his talk of violent jihad, obtained a restraining order against him. The case Monteilh built against one mosque member has collapsed and been dismissed by prosecutors. Meanwhile Monteilh has gone public to reveal how his FBI handlers trained him. The FBI and Justice Department say Monteilh's case is not representative of their generally good relations with the Muslim community. [Thanks to H. Kashk for the lead.]

Canadian Court Rules Against Break-Away Anglican Parishes

In Bentley v. Anglican Synod of the Diocese of Westminster, (BC Ct. App., Nov. 15, 2010), the Court of Appeal in the Canadian province of British Columbia refused to permit four break-away Anglican parishes to continue to use parish property and assets for worship. It also agreed with the trial court that a bequest to one of the parishes remained with it. In the opinion, the court rejected the American "neutral principles of law" approach to deciding disputes over church property. Finding that parish properties are held in trust, the court concluded:

the purpose of the trusts on which the parish corporations hold the church buildings and other assets is to further Anglican ministry in accordance with Anglican doctrine, and that in Canada, the General Synod has the final word on doctrinal matters. This is not to say that the plaintiffs are not in communion with the wider Anglican Church – that is a question on which I would not presume to opine. I do say, however, that members of the Anglican Church in Canada belong to an organization that has subscribed to “government by bishops.” The plaintiffs cannot in my respectful opinion remove themselves from their bishop’s oversight and the diocesan structure and retain the right to use properties that are held for purposes of Anglican ministry in Canada.

An excellent longer summary of the court's decision has been prepared by Lexology. (See prior related posting.)

Recent Articles, Book and DVD of Interest

From SSRN:

• Arnold Reisman, On Two Shoah Books Addressing Jews in Muslim Lands, (November 28, 2010).
• Robert A. Kahn, A Margin of Appreciation for Muslims? Viewing the Defamation of Religions Debate Through Otto-Preminger-Institut v. Austria, (U of St. Thomas Legal Studies Research Paper No. 10-27, 2010).
• Jeremy Waldron, The Image of God: Rights, Reason, and Order, (November 30, 2010).
• Ran Hirschl, Comparative Constitutional Law and Religion, (The Research Handbook in Comparative Constitutional Law, Tom Ginsburg and Rosalind Dixon, eds., Edward Elgar, 2011).

From SmartCILP:

• Robert MacCulloch & Silvia Pezzini, The Roles of Freedom, Growth, and Religion in the Taste for Revolution [Abstract], 53 Journal of Law and Economics 329-358 (2010).
• Catherine M.A. McCauliff, Religion and the Secular State [Abstract], 58 American Journal of Comparative Law 31-49 (2010).
• Mark Strasser, Passive Observers, Passive Displays, and the Establishment Clause,14 Lewis and Clark Law Review 1123-1157 (2010).
• Jennifer Wacek, The Multivocal Shari'a in History and Literature, 28 Wisconsin International Law Journal 299-324 (2010).

Recent Book:

• Timothy Lubin, Donald R. Davis Jr and Jayanth K. Krishnan (eds.), Hinduism and Law: An Introduction, (Cambridge Univ. Press, Oct. 2010).

New DVD:

• Christian J. Pinto, The Hidden Faith of the Founding Fathers, (Adullam Films, Oct. 2010), reviewed by OpEd News.

Is It Constitutional for New York to Criminalize Clergy's Performing Wedding With No Civil License For Couples?

A Forward article published last week raises the question of the constitutionality of New York's Domestic Relations Law, Sec. 17, which makes it a misdemeanor for any clergy member to "solemnize or presume to solemnize any marriage between any parties without a license being presented ... or with knowledge that either party is legally incompetent to contract matrimony." The article reports on the case of Yehuda Semel, who obtained a Jewish religious divorce from his wife. However their civil divorce proceedings are still pending in the courts.  Nevertheless, Semel has married another woman in a religious ceremony without obtaining a civil marriage license.  Most rabbis oppose performing a religious marriage ceremony where there has not been a civil divorce. Commentators argue, however, that it is a violation of the 1st Amendment for the state to make it illegal for a rabbi to perform a purely religious ceremony. It was not unusual before a 1983 change in the Social Security Law that preserved benefits for widows who remarry, for rabbis to perform a religious ceremony for a couple otherwise eligible to marry but who did not obtain a civil marriage license to avoid the woman's loss of her Social Security benefits. There was a Yiddish phrase for that type of marriage-- stile chupa (a "quiet marriage").

Recent Prisoner Free Exercise Cases

In Countryman v. Garcia, 2010 U.S. Dist. LEXIS 125699 (D NV, Nov. 15, 2010), a Nevada federal district court allowed a Native American inmate to proceed with his claims that he was not permitted to perform daily prayers and was deprived of various items of religious property needed to perform rituals that are central to his Native American faith.

In Jones v. Burk, 2010 U.S. Dist. LEXIS 126742 (ED CA, Dec. 1, 2010), a California federal magistrate judge recommended dismissing an inmate's claim that he was denied access to a prayer rug, a copy of the Qur'an and a Muslim cleric.

In Graham v. Fortier, 2010 U.S. Dist. LEXIS 126814 (D NH, Nov. 15, 2010), a New Hampshire federal magistrate judge permitted an inmate to move ahead with allegations that her rights under the free exercise clause and RLUIPA were violated when restrictions on leaving the Closed Custody Unit after 6:00 p.m. prevented her from attending Hope Tabernacle services that were held only on Sunday evenings. However the magistrate recommended dismissal of plaintiff's claim that her rights were also infringed when she could not attend a spiritually-based Alcoholics Anonymous program called Breaking the Chains because it is held only on Tuesday evenings.

In Gutierrez v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 127315 (D AZ, Nov. 15, 2010), an Arizona federal district court rejected an inmate's challenge to a prison policy that prohibits Catholic chaplains from bringing in sacramental wine.

Feliciano v. Burset, 2010 U.S. Dist. LEXIS 127485 (D PR, Dec.2, 2010) is a lengthy opinion growing out of a 30-year history of challenges to prison conditions in Puerto Rico. As a small part of its opinion finding that food service conditions violate the Eighth Amendment because they create an unreasonable risk of malnutrition, food-borne illness and medical complications, the court observed that: "the failure to maintain any consistent program for providing special diets also causes the failure to honor diet restrictions imposed by an inmate's religion implicating Plaintiffs' First Amendment free exercise rights."

Hispanic Congregation Sues Illinois City In Zoning Dispute

According to a Christian News Wire press release, a Hispanic congregation has filed a federal lawsuit against the city of Burbank, Illinois in a dispute over its attempt to use a historic, but now-deteriorating, former restaurant building as a church. Rios de Agua Viva alleges statutory as well as 1st and 14th Amendment violations, claiming that the city is maliciously attempting to change the zoning code to undercut the church's contractual arrangement to occupy the former Old Barn Restaurant. The church contends that the city is violating RLUIPA by requiring it to apply for a special use permit, but not imposing similar requirements on non-religious assembly uses.

Atlanta Suburb Challenged On Use of Mega-Church for Graduation Ceremonies

An Atlanta (GA) suburb-- Cherokee County-- is facing objections from Americans United for Separation of Church and State to the county school district's practice of holding its graduation ceremonies in a local mega-church. The First Baptist Church in Woodstock, Georgia seats 5,000 people and charges the school board only $2,000 for use of the building. According to today's Atlanta Journal Constitution, a comparable secular venue would cost up to $40,000 to rent. Using the school's own gym would limit the number of people who could attend. On Thursday, the Cherokee School Board voted to table a motion on the graduation site so that the three new incoming school board members can take part in the decision. Americans United says that it plans to make similar requests of other metro Atlanta school boards.

Record Clergy Abuse Award Includes Liability On Parish

The New York Times reports that last Wednesday a jury in Delaware decided on the largest compensatory damage award yet in a clergy sexual abuse case-- $30 million to a man who was abused more than 100 times by a Catholic priest.  Also, unlike most other clergy abuse cases, the jury decided that a portion of the damages-- $3 million-- is to be paid by St. Elizabeth parish in Wilmington where the abuse occurred in the 1960's.  In most cases, damages are awarded against the diocese or religious order, not the parish. However the Wilmington Catholic Diocese has filed for bankruptcy (see prior posting) and therefore there is a stay on all litigation against it. On Monday the jury will hear testimony on punitive damages. [Thanks to Pew Sitter for the lead.]

White House Hosts Kosher Hanukkah Reception; National Menorah Lit On Ellipse

Last night President Obama and the First Lady hosted a Hanukkah party in the East Room of the White House. The Chicago Sun-Times reports that some 500 people attended, including Rabbi Capers C. Funnye, Jr. who is Michelle Obama's cousin. Among others attending were the three Jewish U.S. Supreme Court Justices-- Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. In remarks (full text; video of remarks) the President said:

[A]s we prepare to light another candle on the menorah, let us remember the sacrifices that others have made so that we may all be free. Let us pray for the members of our military who guard that freedom every day, and who may be spending this holiday far away from home. Let us also think of those for whom these candles represent not just a triumph of the past, but also hope for the future -- the men, women and children of all faiths who still suffer under tyranny and oppression.

The White House program also included a tribute to Jewish-American composers by the U.S. Marine Chamber Orchestra.  The menu for the evening-- reported in elaborate detail by the White House-- included this information about the strict level of kosher supervision involved: "All meats are Glatt Kosher--Chassidishe Shechitah. All baked goods are Pas Yisroel. All wines are Mevushal. All foods have been prepared Lemihadrin with a Mashgiach Temidi."

On Wednesday evening, the National Menorah was lit on the Ellipse near the White House in a ceremony that included performances by violinist Itzhak Perlman and the U.S. Navy Band.  WTOP News reported that participants braved a cold wind as the first candle was lit with help from Office of Management and Budget Director Jack Lew, the highest ranking Jewish member of the President's cabinet. The National Christmas Tree will join the Menorah on the Ellipse on Dec. 9.

Summary Judgment Denied In Refusal To Hire Creationist As Observatory Director

In Gaskell v. University of Kentucky, (ED KY, Nov. 23, 2010), a Kentucky federal district court refused to grant summary judgment to either side in a Title VII employment discrimination case brought by an astronomer who applied, but was rejected, for a position at the University of Kentucky as director of the University's new astronomical observatory.  Martin Gaskell, who was highly qualified for the position, was not hired after the search committee discovered links on Gaskell's personal website to lecture notes reflecting his creationist views. His personal website was linked to his University web page. Gaskell claims the University violated Title VII of the 1964 Civil Rights Act by using religion as a motivating factor in refusing to hire him. The University of Kentucky argues, on the other hand, that it did not consider his religion, but only his public comments about evolution which could impair his ability to serve effectively as Observatory Director. For example, one faculty member was concerned that hiring Gaskell for a position involving public outreach could create unwanted publicity particularly since the University is only 70 miles away from a controversial creationism museum. The case is covered by BNA Daily Labor Report (subscription required). [Thanks to Steven H. Sholk for the lead.]

Utah Supreme Court Hears Arguments On FLDS Bishops Intervention In UEP Reformation Proceedings

The Utah Supreme Court on Tuesday heard oral arguments (audio of full arguments) in In re: United Effort Plan Trust.  The appeal involves the attempt by two bishops of the FLDS Church to intervene in proceedings in which a state trial court is reforming the terms of a trust that holds land of FLDS members. The trial court refused to permit intervention, saying that potential beneficiaries of charitable trusts have no right to make claims on the trusts. (See prior posting.) AP reports that the bishops' case is complicated by the fact that two weeks ago the trial court allowed the Corporation of the President-- the legal entity that constitutes the FLDS Church-- limited status to present its views in the case.  However the bishops argue that only they are charged with tending to the temporal needs of FLDS members.

8th Circuit: Religion Did Not Influence Trial Judge's Sentencing of Evangelist

In United States v. Hoffman, (8th Cir., Dec. 2, 2010), the 8th Circuit Court of Appeals upheld the conviction and 175 year sentence imposed on evangelist Tony Alamo for Mann Act violations. (See prior posting.) The court rejected Alamo's argument that his sentence was improperly influenced by religious factors.  In sentencing Alamo, the trial judge said: "Mr. Alamo, one day you will face a higher and greater judge than me. May he have mercy on your soul."  The Court of Appeals concluded, however: "Nothing suggests that the district court's personal view of religion in any way influenced an aspect of Hoffman's sentence."  It said that because religion pervaded the entire trial of the evangelist on charges of taking underage girls across state lines for the purpose of sex, "it is ... not surprising that religion might have been mentioned at sentencing." The Washington Post yesterday reported on the decision.

Kyrgyz City Will Monitor Muslim Clerics

In Kyrgyzstan, the city council in Osh has set up a new commission made up of religious leaders and law enforcement officials to monitor Islamic clerics in the city.  Central Asia Newswire yesterday quoted a source who said: "The decision has been prompted by clerics' frequent and not always positive interference in social and political developments, including the June tragic riots and failed terrorist attacks." Friday prayers will be permitted only at a few mosques in the city.

Supporters of Prop 8 Seek Recusal of 9th Circuit Judge

As the U.S. 9th Circuit Court of Appeals moves to hear arguments next week in the lawsuit challenging the constitutionality of Proposition 8, California's ban on same-sex marriage, supporters of Prop 8 have filed papers seeking to have one of the judges on the appellate panel disqualify himself.  AP reports that in a filing with the court, appellants say that Judge Stephen Reinhardt's impartiality is open to question. The judge's wife, Ramona Ripston, is head of the Southern California chapter of the ACLU and in that role has been an outspoken opponent of Prop 8.  Also the ACLU has filed an amicus brief in the case on behalf of plaintiffs who are challenging the law. Reinhardt has recused himself in past cases involving the Southern California ACLU.  In August a federal district court held Prop 8 to be unconstitutional. (See prior posting.)

UPDATE: The Silicon Valley Mercury News reports that on Thursday, Judge Reinhardt refused to disqualify himself from hearing the case, saying: "I will be able to rule impartially in this appeal, and I will do so." Backers of Prop 8 will not challenge that ruling. [Thanks to Alliance Alert for the lead.]