Cert. Filed In Case On University Funding of Student Religious Groups

According to University of Wisconsin-Madison News yesterday, on November 30 the University of Wisconsin System Board of Regents filed a petition for certiorari seeking U.S. Supreme Court review in Badger Catholic, Inc. v. Walsh.  In the case, the 7th Circuit, in a 2-1 decision, invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing or religious instruction by recognized student groups. (See prior posting.)

DOJ Sues School District Over Its Refusal To Grant Unpaid Leave for Teacher's Hajj

The Justice Department announced yesterday that it has filed a Title VII religious discrimination lawsuit against the Berkeley, Illinois School District on behalf of a Muslim middle school teacher who was denied an unpaid leave that she requested so she could perform the Hajj. The school district denied the leave because it was not related to her professional duties nor was it for one of the reasons specified in the District's agreement with the teachers' union.  The lawsuit claims that the school district failed to reasonably accommodate the religious practices of teacher Safoorah Khan, causing her to lose her job when she chose to observe her religious obligations.  The suit seeks back pay, compensatory damages, reinstatement and a change in school district policies. According to the Justice Department's press release: "This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division."

Iraqi Christians Fleeing To North or Abroad

Today's New York Times reports that in Iraq a new wave of Christians are fleeing Baghdad and Mosul for protection in the Kurdish-controlled north, or abroad. The latest out-migration follows an October 31 attack on a Baghdad church that killed 51 worshipers and 2 priests, followed by bombings and assassinations targeting Christians. More than half of Iraq's Christian community has fled the country since 2003.

Controversy Continues Over National Portrait Gallery's Removal of Offending Video

Controversy continues (New York Times Op Ed 12/11) over the action two weeks ago by the National Portrait Gallery which removed a four minute video by the late artist David Wojnarowicz from an exhibit on sexual difference in American portraiture. The Dec. 1 Washington Post reported that the video titled A Fire in My Belly was removed from the Hide/Seek: Difference and Desire in American Portraiture exhibit after strong protests from Catholic League president William Donahue and the office of incoming House Speaker John Boehner over a portrayal in it of a small crucifix covered with ants.  Donahue called it "hate speech." Last Thursday, the Washington Post reported that James T. Bartlett, a member of the Museum's advisory panel, resigned over the decision to remove the video. A Q and A Release on the controversy posted on the Smithsonian's website last week says the action was taken "help focus attention on the central theme of the exhibition, which is portraiture and the representation of gay and lesbian identities in American art." Now Museum officials have been meeting with concerned staff.  According to the Washington Post: "Because the objections on Capitol Hill came initially from two powerful Republicans, John Boehner (R-Ohio) and Eric Cantor (R-Va.), and the Congress controls 70 percent of the Smithsonian's budget, employees said they feared to go public with their viewpoints."

Amish Victims of Investment Fraud Want To Administer Remaining Assets Instead of Bankruptcy Court

Yesterday's Columbus (OH) Dispatch reports that a member of central Ohio's Amish community, Monroe Beachy, has lost over half of the $33 million that 2,700 members of the Amish and Mennonite Church have given him to invest over the last 25 years, apparently in a fraudulent investment scheme.  Beachy has now filed for bankruptcy, but members of the Amish community have asked the court to dismiss the case and allow them to handle the matter internally within the Amish community-- including distribution of the $16.4 million in assets that the U.S. Trustee has recovered. They say that use of civil courts is forbidden by the Bible, and want to distribute the funds  based on "Christian principles of love and care for the poor and needy.”  Hundreds of investors have written the bankruptcy judge saying: "My participation as a creditor is abhorrent to deeply held spiritual principles on which my family and I have built our lives."  The U.S. Trustee opposes turning the case over to the Amish and says that religious beliefs are not a basis for dismissing the case.

Religious Talk Show Host's Comments on Gays Violated Canadian Broadcasting Standards

Last week the Canadian Broadcast Standards Council released the decision of its Ontario regional panel handed down in June relating to  the religious talk show Word TV (broadcast on CITS-TV, the Crossroads Television System in Ontario). (Full text of decision.)  While the panel cleared Word TV host Charles McVety of ethics charges relating to comments on several issues, it found that his comments about homosexuality violated the Canadian Association of Broadcasters Code of Ethics and its Equitable Portrayal Code. In particular the panel focused on four areas: he falsely claimed that the Ontario and Alberta Human Rights Commissions had a 100% conviction rate; he asserted that it is a crime to speak against homosexuality; he mischaracterized Ontario's revised school curriculum as one designed to teach homosexuality; and he mischaracterized gay pride parades as promoting sexual perversion and their advertising as promoting sex with children. The National Post reported Friday that in response to the decision, CTS has temporarily taken Word TV off the air. The CBSC decision requires CITS-TV to air a specified notice describing the decision once during prime time and once during the time slot in which Word TV was broadcast. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Omar Salah, Structuring Sukuk Al-Ijarah in the Netherlands, (TISCO Working Paper Series on Banking, Finance, and Services 08/2010, Nov. 26, 2010).
• Stephen Copp, A Theology of Incorporation with Limited Liability, (October 20, 2010).
• Christian J. De Ocejo, War Against God: How Iran Violates Islamic Law and What Human Rights Organizations Should Do About It, (December 3, 2010).
• Hassan Ahmad, Investigating Secondary Source Usage by Hanafi Jurists to Enhance Contemporary Relations in Muslim Minority Societies, (April 12, 2010).
• Pamela S. Karlan, Marriage, Method, and the Supreme Court, (Supreme Court Review, Forthcoming).
• Todd E. Pettys, Sodom's Shadow: The Uncertain Line Between Public and Private Morality, (Hastings Law Journal, Vol. 61, p. 1161, 2010).
• Jeremy Waldron, Secularism and the Limits of Community, (December 9, 2010).
• Todd E. Pettys, Letter from Iowa: Same-Sex Marriage and the Ouster of Three Justices, (Kansas Law Review, Forthcoming).

From SmartCILP:

• Paul E. McGreal, The Making of the Supreme Court's Free Exercise Clause Jurisprudence: Lessons from the Blackmun and Powell Papers in Bowen v. Roy, 34 Southern Illinois University Law Journal 469-532 (2010).
• Religious Legal Theory: The State of the Field. Articles by Robert K. Vischer, Mark L. Movsesian, John F. Coverdale, Michael V. Hernandez, Samuel J. Levine, Amelia J. Uelmen and David S. Caudill. 40 Seton Hall Law Review 845-990 (2010).

Poland Experiencing Rise In Secularism

The New York Times reported yesterday on growing secularization in Poland. 95% of Poles identify as Catholic, but only 41% attend Mass regularly. In the large cities of Warsaw and Krakow, that number drops to 20%, as Catholicism becomes more a cultural identity.  There is a strong anticlerical movement in Poland, not attached to Church sex scandals, but more a function of  rebellion against authority.  Many are upset with the Church's taking sides in political battles and its intervention in social issues, such as Parliament's debate over in vitro fertilization.  In part to counter the secularizing movement, last month a 108 foot high statue of Jesus was erected in the small western Polish town of Swiebodzin.

Recent Prisoner Free Exercise Cases

In Michael v. Frederick County Commissioners, 2010 U.S. Dist. LEXIS 127776 (D MD, Dec. 3, 2010), a Maryland federal district court rejected a complaint by a pre-trial detainee that his free exercise rights were violated when a cross he wore as a necklace was confiscated as a security risk.

In Shoucair v. Williams, 2010 U.S. Dist. LEXIS 127712 (ED MI, Dec. 3, 2010), a Michigan federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 127702, Oct. 27, 2010) reaffirming an earlier holding that a Muslim prisoner who was assaulted was improperly trying to force his 8th Amendment claims into Free Exercise and RLUIPA claims. (See prior related posting.)

In Oliverez v. Albitre, 2010 U.S. Dist. LEXIS 128243 (ED CA, Dec. 6, 2010), a California federal magistrate judge recommended that a Wiccan inmate be allowed to move ahead with his claim that the chaplain's office failed to respond to his request for the issuance to him of prayer oil.

In Greenwood v. Maketa, 2010 U.S. Dist. LEXIS 128464 (D CO, Nov. 22, 2010), a Colorado federal magistrate judge ordered a Muslim inmate to file an amended complaint giving clearer notice of his claims, or else his case will be dismissed. Plaintiff complained that the jail's postcard-only requirement prevents him from mailing religious study guides. He also complained that he is being denied a religious diet and is being forced to participate in the Ramadan fast.

In Glaze v. May, 2010 U.S. Dist. LEXIS 128653 (ED AR, Dec. 3, 2010), an Arkansas federal district court  adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 128703, Sept. 7, 2010) and dismissed a complaint by a Muslim inmate that he was denied adequate alternative meals to those that did not comply with his religious requirements. He claimed that he was often served only peanut butter sandwiches.

In Burriola v. Nevada, 2010 U.S. Dist. LEXIS 129678 (D NV, Nov. 17, 2010), a Nevada federal district court permitted an inmate to proceed with his complaint that prison authorities required him to serve on mail duty at a time that conflicted with his religious services.

In Briggs v. Hartley, 2010 U.S. Dist. LEXIS 130217 (ED CA, Nov. 24, 2010), a California federal magistrate judge dismissed with leave to amend  an inmate's broad allegations that he has been inhibited in some unspecified way from practicing his religion and that he is being persecuted because of his religious beliefs.

In Harris v. Chavez, 2010 U.S. Dist. LEXIS 130204 (D CO, Nov. 23, 2010), a Colorado federal district judge dismissed claims against two defendants but allowed a Jewish inmate to proceed with her claims against other defendants alleging interference with her possessing a kosher meal and forcing her to violate the Sabbath by requiring her to move and sign for a room key and a cell inspection on Saturday.

In Lee v. Gurney, 2010 U.S. Dist. LEXIS 130493 (ED VA, Dec. 8, 2010), a Virginia federal district court dismissed claims of a Sunni Muslim inmate who challenged the ban on group prayer in the prison's recreation yard.  Plaintiff's First Amendment claim was dismissed on the merits. His RLUIPA claims for injunctive relief were dismissed because he had been transfered to another prison. The court found that damages are unavailable under RLUIPA because plaintiff's inability to engage in group prayer does not affect interstate commerce.

In Torrez v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 130632 (D AZ, Nov. 22, 2010), an Arizona federal district court permitted a defendant to move ahead with claims that he was denied a religious diet during Lent , and was denied permission to use the chapel for Mass because there was no priest with security clearance. It allowed him to move ahead with a complaint that the prison did not make Catholic television programming available to inmates while making Protestant television programming available, and that he was not hired as a chapel porter because of his Catholic faith. Various other claims were rejected.

Court Rejects Establishment Clause Claim Alleging Connection of State Officials With Catholic Organizations

Wallace v. Bank of America, 2010 U.S. Dist. LEXIS 129804 (D NH, Nov. 5, 2010), is a pro se case growing out of foreclosures on plaintiff's homes.  A New Hampshire federal district court rejected an Establishment Clause claim added by plaintiff which, according to the court, was "based on the governor's appearance at a fundraiser for a community food bank run by New Hampshire Catholic Charities, and the Roman Catholic Church membership or affiliation of Robert Ducharme, Chairman of the New Hampshire Board of Nursing, and others who [plaintiff] believes have harassed or defamed her."

En Banc 9th Circuit Refuses To Create Test for Who Is Covered By the Ministerial Exception

In an en banc opinion in Alcazar v. Rosas, (9th Cir., Dec. 10, 2010), the full 9th Circuit vacated the portion of the 3-judge panel's decision that adopted a new definition for who is a minister for purposes of the "ministerial exception" doctrine. (See prior posting.) At issue is a challenge by a Catholic seminarian who alleged violations of Washington state's Minimum Wage Law, claiming he was not paid required overtime while in a placement program preparing for the priesthood. The en banc court concluded that appellant was a minister "under any reasonable interpretation of the exception," and that the exception applies to appellant's minimum wage claim  The court went on to hold:

First Amendment considerations relevant to an ordained minister apply equally to a person who, though not yet ordained, has entered into a church-recognized seminary program to become a minister and who brings suit concerning employment decisions arising from work as a seminarian..... We do not address the extent of any ministerial exception concerning minors.... Additionally, we agree ... that, if a church labels a person a religious official as a mere “subterfuge” to avoid statutory obligations, the ministerial exception does not apply.

Courthouse News Service reports on the decision.

Pastor As Chicago Mayoral Candidate Must Deal With IRS Rules

Today's Chicago Tribune reports on the Internal Revenue Code tightrope being walked by Rev. James T. Meeks who is pastor of Salem Baptist Church and preaches every Sunday at the 10,000 seat House of Hope arena.  Meeks is now also a candidate for mayor of Chicago.  The Internal Revenue Code bars churches and other non-profits from supporting candidates in political elections. (Background.) Meeks regularly-- beginning long before he became a candidate-- preaches about problems in the city such as poor garbage pick up and under-performing public schools. He also tells his congregants that they have a duty to support candidates that are guided by Christian values. Criticizing the IRS rules, Meeks asks why he can take money from all sorts of special interests, but not from a church. He asks, "If homosexuals can endorse a candidate, why can't a church?"

Saudi King Moving To Reform Legal System

An analysis published yesterday by Gerson Lehrman Group reports that Saudi Arabia's King Abdullah is making progress in pushing through sweeping legal reform and codification to meet World Trade Organization and human rights standards.  The move which attempts to restrict fatwas and codify Islamic legal rules is designed to encourage foreign investment, standardize legal practice and grant enforcement powers to the courts. In response to a series of embarrassing fatwas, Abdullah has decreed that only members of the Council of Senior Islamic Scholars can to issue fatwas. The analysis concludes:

The debate over the rules that govern the issuing of fatwas reflects King Abdullah's recognition and a growing body of public opinion that Wahhabisim, the kingdom's puritan version of Islam, hinders the development of a modern state capable of competing in the 21st century and catering to people's needs. Five years ago, bizarre and obscure fatwas would have been seriously debated rather than ridiculed and condemned.

Many Saudi clergymen have yet to recognize that Abdullah's legal reform offers them an opportunity to consolidate their influence. Yet, they seem more intent on scoring own goals that undermine their public credibility and ultimately could signal the decline of clerical power in Saudi Arabia. In doing so, the clergy could be opening the door for the House of Saud to identify new sources of legitimacy that go beyond their historical reliance on Wahhabism.

11th Circuit: No Bar On Private Employer Keeping Workplace Free of Religious Symbols

 Dixon v. Hallmark Companies, Inc., (11th Cir., Dec. 9, 2010), involved a clash between owners of a federally assisted apartment complex that had a policy barring religious items from being displayed in the building's management office, and the husband and wife maintenance technician and on-site property manager who objected to the policy. A company supervisor insisted that the couple take down a large wall hanging that included the inscription: "Remember the Lilies.... Matthew 6:28." The supervisor ultimately took the picture down  and an argument ensued when the couple wanted to rehang it, leading to their being fired. The couple sued.  On appeal, the 11th Circuit concluded that plaintiffs failed to show any legal rule that barred the owners from keeping religious symbols out of the workplace.  However it sent back for trial a religious discrimination claim based on the husband's allegation that the supervisor said he was being fired for being "too religious." It also sent back to the trial court a religious accommodation claim so the trial court could determine whether plaintiffs had a sincere religious belief that conflicted with the company's policy. (See prior related posting.)

President Delivers Remarks At National Christmas Tree Lighting

President Obama yesterday delivered remarks (full text) at the lighting of the National Christmas Tree on The Ellipse. He said in part:

each year, we have gathered here. Each year we’ve come together to celebrate a story that has endured for two millennia. It’s a story that's dear to Michelle and me as Christians, but it's a message that's universal: A child was born far from home to spread a simple message of love and redemption to every human being around the world.

It's a message that says no matter who we are or where we are from, no matter the pain we endure or the wrongs we face, we are called to love one another as brothers and as sisters....On behalf of Malia, Sasha, Michelle, Marian -- who’s our grandmother-in-chief -- (laughter) -– and Bo -- don't forget Bo -- (applause) -- I wish all of you a merry Christmas and a blessed holiday season.

Court Upholds Monastery's Copyright Claims Against Former Member

In Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory, (D MA, Dec. 3, 2010), a Massachusetts federal district court upheld copyright infringement claims brought by an Orthodox monastery against Archbishop Gregory,  a former member of the monastery.  Gregory posted on his website portions of English translations of six religious works. The monastery holds copyrights on the translations. Gregory was involved with others in creating the translations when he was at the monastery. Sales of copies of the works help sustain the monastery financially.  The court rejected various challenges to the validity of the monastery's copyrights and also rejected defendants' fair use defense. It granted the monastery's motion for summary judgment on the infringement claims and gave the monastery until Dec. 17 to elect whether it wants a trial on damages or sill settle for a judgment based on the statutory minimum damages of $750 per work infringed. Wednesday's National Law Journal reported on the decision.

Kentucky Will Bar Religious Theme Park From Hiring On Basis of Religion If It Gets Tax Incentives

As previously reported, Kentucky Gov. Steve Beshear is supporting an application by a proposed Noah's Ark theme park for participation in the state's sales tax rebate program for tourism development projects.  Yesterday's Louisville Courier Journal reports that Beshear says he is insisting that the contract with Ark Encounter bar it from receiving tax incentives if it discriminates on the basis of religion (or otherwise) in its hiring. Kentucky law permits religious organizations to hire on the basis of religion for work connected with religious activities.  Another Kentucky tourist attraction, Answers In Genesis, requires employees to sign a statement of faith.  Ark Encounter developers plan for their new park to be operated by Answers In Genesis once the park is built.

New AG Who Will Defend Anti-Shariah Amendment Profiled As Backers Look To Other States

An article in yesterday's Christian Century profiles the new attorney general of Oklahoma who will take office January 1 and will be active in defending Oklahoma's anti-Shariah constitutional amendment that is currently being challenged in court. A federal district court has issued a preliminary injunction preventing certification of the November vote that approved the amendment. (See prior posting.) Attorney-general elect Scott Pruitt, a Republican, is a former state senator who in 2000 co-authored Oklahoma's Religious Freedom Act. Pruitt, who is also co-owner of the Oklahoma City Redhawks minor league baseball team, was strongly backed by Christian Conservatives in the November election. Meanwhile, Jordan Sekulow of the American Center for Law and Justice, who advised one of the drafters of the anti-Shariah amendment, says that they are looking ahead to proposing similar amendments in other states.  He reported:  "We've already started drafting amendments similar to this that would be even more constitutionally airtight."

Rabbi, Rejected As Army Chaplain Because of Beard, Sues

The Washington Post reports that yesterday an Orthodox Jewish rabbi filed suit against the U.S. Army challenging its refusal to allow him to serve as a chaplain because he wears a religiously-mandated beard. Originally the Army appointed Menachem M. Stern, a member of the Brooklyn (NY) Chabad-Lubavitch community, as a second lieutenant, but then withdrew his commission in September because of the Army's policy barring beards. The suit alleges that the refusal is discriminatory, particularly since the Army has since granted waivers of the beard regulation to two Sikh and a Muslim Army officers. (See prior related posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

HHS Faith-Based Office Promotes Flu Vaccinations

The U.S. Department of Health and Human Services announced this week that its Center for Faith-based and Community Partnerships is promoting National Influenza Vaccination Week with coordinated events around the country and the release of two new "fight the flu" resources-- a one page flyer and a guide for faith and community leaders on seasonal influenza. As part of the effort, U.S.Surgeon General Dr. Regina Benjamin spoke at Bishop T.D. Jakes' Potter’s House in Dallas, Texas.