Federal Court Issues TRO To Prevent Sale and Subdivision of FLDS Property

According to KCSG TV, a Utah federal district court on Tuesday issued a temporary restraining order prohibiting a state-court appointed trustee from selling certain land belonging the the FLDS United Effort Plan Trust. Refusing to grant the broad injunction against all trust management activity requested by FLDS (see prior posting), Judge Dee Benson instead barred sale of Berry Knoll Farm, a site that FLDS members have set aside for a future temple, and barred subdividing land in Hildale, Utah and Colorado City, Arizona. He also barred any other action that might cause irreparable harm to the trust or FLDS members while the court decides on the constitutional challenge to the action of Utah in seizing control of the UEP Trust and moving to reform the trust which holds land of members of the polygamous FLDS sect.

Judge Accepts Claim That Festivus Requires Kosher Meals Until Hoax Is Discovered

The New York Post yesterday carried a report on a fabricated free exercise claim in Orange County, California's jail several months ago.  The story has been making the rounds online for several days, but the Post's coverage is the first that seems to create an coherent chronology.  In April, Malcolm Alarmo King was sentenced on drug charges.  King wanted to obtain kosher meals, rather than the salami that was often served in jail, because he thought kosher meals were healthier and would allow him to maintain his physique. When King's lawyer asked the sentencing judge to order kosher meals-- which cost the jail more than other meals-- the judge said he could order them only if he had a religion to put down in the order. So King's attorney, Fred Thiagarajah, responded "Festivus," the artificial holiday popularized on the Seinfeld show. Dutifully, the judge issued an order that "the defendant is to receive a high protein no salami diet three times per day for 'Festivism'."  Apparently the Orange County Sheriff's Office did not realize what had happened until they looked up Festivus on Wikipedia. They then asked King what his religion was, and he responded "Healthism." It then took county lawyers several months to get the order overturned.  King was released in October, but he is now in federal custody pending a deportation hearing. He is suspected of being in the country illegally from Liberia. (Orange County Register).

Bishop Threatens To Withdraw Catholic Designation From Hospital Over Abortion Controversy

USA Today reports that Bishop Thomas J. Olmsted, Catholic Bishop of Phoenix, Arizona, is threatening to remove the Catholic affiliation of Phoenix's St. Joseph's Hospital and Medical Center this Friday in a dispute over the hospital's actions to save the life of a pregnant woman earlier this year.  The hospital's ethics committee, including Sister Margaret McBride, approved terminating the pregnancy of a young woman who was near death from pulmonary hypertension, a condition made worse by hormones produced by the uterus during pregnancy. The Bishop subsequently denounced the procedure as an impermissible abortion.  In a Nov. 22 letter to the president of Catholic Healthcare West, St. Joseph's parent company, Olmsted demanded that Catholic Healthcare West acknowledge the hospital was wrong in its interpretation of the church's view on indirect abortions; that it submit to a diocesan review and certification; and that it agree to give its medical staff ongoing training on the U.S. Conference of of Catholic Bishop's Ethical and Religious Directives. The Diocese of Phoenix yesterday posted a release on its website indicating that the Bishop's letter was considered private and confidential, and indicating that it was continuing to work with the hospital and Catholic Healthcare West "to find the best way to provide authentic Catholic health care in accordance with the Church's teaching." Meanwhile a statement by St. Joseph's on its website stated they "continue to be in dialogue with Bishop Olmsted and we hope to achieve a resolution. We believe that all life is sacred. In this case we saved the only life we could save, which was the mother's."

Jail Booking Photo Without Hijab Approved Reluctantly

In a Boulder County, Colorado court, a judge has denied a request by a Muslim University of Colorado student to have her jail booking photo taken wearing a headscarf. The Boulder (CO) Daily Camera reported yesterday that Maria Hardman was sentenced to two days on a work crew for driving her scooter while under the influence of alcohol. When she reported to jail, authorities insisted she remove her hijab for her booking photo. She refused and her attorney filed in court for relief. The judge concluded that the jail's offer to allow her to have her photo taken in a private room accompanied only by a female staff member was a sufficient accommodation of her religious beliefs.  At the same time, the judge urged the sheriff's office to "reexamine whether their legitimate interests in recording useful identifying information and images of this defendant for this work crew sentence would truly he compromised by allowing her to take the booking photo with her scarf above her hairline and not obscuring her face."

Russian Regional Law Turns Confiscated Catholic and Lutheran Properties Over To Orthodox Church

Forum 18 reported yesterday on two laws enacted by the Duma in Russia's Kaliningrad Region at the end of October.  They provided for turning over to the Russian Orthodox Church various properties that had been confiscated years ago by Soviet authorities from the Lutheran and Catholic Churches. On Nov. 23, the head of the State Property Agency formally transferred two properties, and the Russian Orthodox Church promptly signed leases with the organizations now occupying the buildings allowing them to continue to do so. Holy Family Catholic Church currently houses the regional orchestra, while Queen Luise Lutheran Memorial Church is used by the puppet theater.  The controversial laws reflect the view of the Russian Orthodox Church that transfers of confiscated religious property should reflect the composition of the population of the area today and not be based on who built the places of worship. The Kaliningrad Region, formerly German East Prussia, was annexed by the Soviet Union during World War II and most of its ethnic German population was driven out.

Suit Charges Watch Wholesaler With Religious Discrimination Against Employee

The New York Daily News yesterday reported on the filing of a religious discrimination lawsuit in state court by the former vice-president for sales of Concepts in Time, a wholesale clock and picture frame store in Manhattan. The suit seems to be connected to a broader dispute between former employee Jamie Errico, a Catholic, and the wholesale company, owned by Saul Jemal, an Orthodox Jew. In April Jemal accused Errico of taking the company's confidential and proprietary information before leaving and going to work for a competitor.  Errico complains that Jemal would not let her wear a crucifix to work, even though Jewish employees wore stars of David. It also claims that while Jewish employees were allowed to take off early on the evenings of holidays, Errico's pay was docked when she did not show up on Christmas eve. Errico also complains that she was not allowed to make or sell watches with any kind of non-Jewish symbols, and says she was fired two weeks before Christmas of 2009. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Muslim Woman Sues Over Ban on Wearing Hijab In Court House

The ACLU of Georgia announced yesterday that it has filed a federal civil rights lawsuit against the city of Douglasville, Georgia and various city officials on behalf of a Muslim woman who who was told she could not enter a municipal courtroom where her nephew faced a traffic hearing unless she removed her hijab (religious headscarf). Plaintiff Lisa Valentine got into an argument with officers staffing the metal detector. They handcuffed Valentine and took her before the judge who sentenced her to ten days for contempt for creating a disturbance in the hallway and at the metal detector. She was not allowed to wear her hijab in the court holding cell or while being transported to jail. However after police reviewed the case, she was released that same evening and the judge rescinded the contempt order. The complaint (full text) in Valentine v. City of Douglasville, (ND GA, filed 12/14/2010) alleges that defendants violated RLUIPA as well as Valentine's 1st Amendment free exercise rights. It also alleges that her arrest without probable cause violated the 4th Amendment. The lawsuit seeks an injunction and damages. After the incident involving Valentine, the Municipal Court issued a local rule providing procedures for special arrangements when a head covering is needed for religious or medical reasons.

Report Focuses on Discrimination Against Christians In Europe

Last week, coinciding with an OSCE meeting in Vienna on Freedom of Religion, the Observatory on Intolerance and Discrimination Against Christians in Europe released a 39-page report (full text) covering a five year period and focusing on "instances in which Christians and Christianity are marginalized or discriminated against throughout Europe." Here is an excerpt from the Introduction to the report:

[E]ven if there are disputes amongst Christians, what we face all together are radical secularism and political correctness gone overboard, both of which limit fundamental freedoms.

Another common objection states, that what Christians encounter today is not intolerance or discrimination, but a process of losing historical privileges. Historical privileges, far from discriminating against other religious communities, are not necessarily bad, considering that they are, after all, historical and that no community exists void of a past with its own historically evolved identity and traditions. Full neutrality is impossible since even an empty white wall is a statement, especially if it is a consequence of the removal of the crucifix. One religious community holding privileges for historical reasons does not mean that others are being discriminated against – as long as their enshrined rights are protected.

To some extent the withdrawal of privileges from Christianity constitutes an unnatural break with history and identity and is an expression of hostility. This hostility does not stop at the removal of privileges. It causes marginalization and social exclusion, and it leads to the denial of rights of Christians. Equal rights for Christians are at stake.

The report concluded with a series of recommendations to European governments, the EU and international organizations. CNA yesterday summarized the report and reactions to it.

Battle Over Atheist Ads On Ft. Worth Buses

The New York Times reported yesterday on the battle over advertising signs on public buses in Ft. Worth, Texas. After an atheist group bought space on the outside of four city buses for signs reading "Millions of People are Good Without God," some businessmen arranged for a van that began following the buses around carrying signs that read "2.1 Billion People Are Good with God," and below it, "I Still Love You-- God." Black religious leaders in Ft. Worth have called for a boycott of buses, saying that the ads are a direct attack during the Christmas season. Others are urging the Ft. Worth Transportation Authority to ban all religious advertising on buses. Terry McDonald, chairman of the group Metroplex Atheists,says the bus ad was not intended to insult Christians, but was aimed at consoling atheists, adding: "It can be pretty lonely for a nonbeliever at Christmastime around here."

Dismissal Recommended In Challenge To Illinois Funding of Bald Knob Cross Renovation

In Sherman v. State of Illinois, 2010 U.S. Dist. LEXIS 131080 (CD IL, Dec. 10, 2010), an Illinois federal magistrate judge concluded that activist Robert Sherman lacks standing to bring an Establishment Clause challenge to a $20,000 renovation grant for Bald Knob Cross. The Illinois Department of Commerce and Economic Opportunity made the grant to Friends of the Cross to promote tourism to the Ozarks attraction. (See prior posting.) The court held that the Flast test for taxpayer standing was not met because the grant was made by the executive branch. It was not a specific legislative appropriation. The court, relying on Seventh Circuit precedent, also concluded that plaintiff's challenge became moot once the grant money was disbursed by the state to a private entity. The magistrate judge recommended the case be dismissed.

Polls Show Most Favor Religious Symbols on Public Property, Holidays in Schools

A Rasmussen poll released yesterday shows that 74% of adults surveyed believe that religious symbols such as nativity scenes, menorahs and Muslim crescents should be permitted on public property.  17% disagree.  80% of those surveyed favored celebrating religious holidays in public schools, while 14% do not.  The 80% figure is comprised of 43% who favor celebrating all religious holidays, and 37% who favor only celebrating some of them in the schools. A separate survey released a week ago by Rasmussen showed that 92% of Americans celebrate Christmas. Of those, 65% consider it a religious holiday while 28% say they celebrate it as a secular holiday.

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.