Court Says Father Can Talk With Children About His Belief In Plural Marriage

The Salt Lake Tribune reported Saturday that a Utah state trial court judge has changed the terms of a custody order to eliminate the restriction formerly placed on Joseph Compton that barred him from talking to his eight children about his belief in plural marriage and barred him from taking them to the 800-member community where Compton lives which is comprise mostly of members of the Apostolic United Brethren (the Allred Group). Kathleen Compton filed for divorce when Joseph refused to stop seeing a woman he wanted to become his second wife. (Joseph has not though entered into a polygamous relationship with the woman.) Kathleen is afraid that her children might join the Allred Group or marry someone from that community and become polygamists.  The judge wrote, however:

The court received no evidence that any of the petitioner’s children, adult or minor, have suffered real harm or will suffer substantiated potential harm as a result of his belief in the practice, even though the practice is criminal.... To restrict parent time based on illegal conduct may be appropriate, but the illegality [of polygamy] on its own is not sufficient to warrant restriction.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Russia’s "Orthodox" Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad, (December 14, 2010).
• Alan E. Brownstein, Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry, (University of San Francisco Law Review, No. 45, 2010).
• Leslie C. Griffin, Snyder v. Phelps: Searching for a Legal Standard, (Cardozo Law Review De Novo, p. 353, 2010).
• Leslie C. Griffin, Smith and Women's Equality, (Cardozo Law Review, Vol. 32, 2011).
• Benjamin L. Berger, Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010).
• Richael Faithful, Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections and Civil Rights Progress within the Employment Non-Discrimination Act, (The Legislation and Policy Brief, Forthcoming).
• Mohammad Fadel, Muslim Reformists, Female Citizenship and the Public Accommodation of Islam in Liberal Democracy, (Politics and Religion, Cambridge University Press, 2012).
• Jeff Redding, Beyond Exclusion: A Review of Peter J. Spiro’s 'Beyond Citizenship', (Minnesota Law Review Headnotes, Vol. 95, p. 29, 2010).
• Asifa Quraishi, On Fallibility and Finality: Why Thinking Like a Qadi Helps Me Understand American Constitutional Law, (Michigan State Law Review, Vol. 2009, No. 2, 2009).
• Jeremy Waldron, Torture, Suicide, and Determinatio, (The American Journal of Jurisprudence, Vol. 55, 2010).

From SmartCILP:

• Nicholas Parsons &  Marcus Mietzner, Sharia By-laws in Indonesia: A Legal and Political Analysis, [Abstract], 11 Australian Journal of Asian Law 190-217 (2009).
• Geoffrey R. Stone, The Second Great Awakening: A Christian Nation?, 26 Georgia State University Law Review 1305-1333 (2010).
• Kevin J. Worthen, The NCAA and Religion: Insights About Non-State Governance from Sunday Play and End Zone Celebrations, 2010 Utah Law Review 123-140.
• Symposium: A Celebration of the Twentieth Anniversary of Mulieris Dignitatem, Part II. Articles by Mary G. Leary, Ernest Caparros, Sr. Thomas Augustine Becker, Jane F. Adolphe, Robert L. Fastiggi, Fr. John J. Coughlin, Katherine Shaw Spaht, Mary Shivanandan, Lisa Lickona, Joseph Isanga and Howard Bromberg. 8 Ave Maria Law Review 247-442 (2010).

Ontario High Court Upholds "Motive" Clause In Canada's Anti-Terrorism Law

In Regina v. Khawaja, (Ct App. ON, Dec. 17, 2010), the Court of Appeal for Ontario reversed the holding of a trial court below and upheld the constitutionality of the "motive clause" in the definition of "terrorist activity" in Canada's anti-terrorism law. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." The trial court had found that because this provision will focus prosecutorial scrutiny on political, religious and ideological beliefs, its chilling effect renders it unconstitutional under Canada's Charter of Rights and Freedoms. (See prior posting.) The appeals court, however, reasoned:

There are many potential explanations for why people might feel a chilling effect when it comes to expressing extremist Islamic views. Perhaps, most obviously, there is the reality of the world we live in. Terrorism and the fear and uncertainty terrorism creates are facts of life. Fear can generate many things, including suspicion based on ignorance and stereotyping. Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fueled by a potent mix of religious and political fanaticism. It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists. Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist.

In making these observations, we do not intend to condone profiling or stereotyping. We do, however, mean to say that the most obvious cause of any “chilling effect” among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be “chilled” by its existence....

The Toronto Star reports that this is one of six decisions released by Ontario's highest court on Friday which increased the prison sentences of three individuals and ordered two others extradited to the United States. The other 5 cases are R. v. Amara, R. v. Banwait, R. v. Gaya, R. v. Houssari,and R. v. Khalid.

Sudan's President Promises Islamic Constitution, Defends Sharia Punishments

Reuters today reports that Sudan's president, Omar Hassan al-Bashir, at a rally today told supporters that if Southern Sudan votes to secede in January's referendum, the rest of Sudan will adopt an Islamic constitution.  An interim constitution adopted in 2005 limited shariah law to the north and recognized "the cultural and social diversity of the Sudanese people." Bashir says that the recognition of that diversity will disappear in his new constitution. Bashir also defended a YouTube video of police lashing a woman, saying: "If she is lashed according to sharia law there is no investigation. Why are some people ashamed? This is sharia."

Recent Prisoner Free Exercise Cases

In Tapp v. Proto, (3d Cir., Dec. 13, 2010), the 3rd Circuit held that a two-week delay in providing plaintiff kosher meals and plaintiff's complaint that the meals lacked variety and were often cold did not amount to a violation of plaintiff's free exercise rights.

In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 130879 (D CO, Nov. 30, 2010), a Colorado federal district court rejected a motion by convicted Oklahoma City bomber Terry Nichols to amend an earlier decision rejecting Nichols' free exercise and RFRA challenges to the diet he receives in prison. Nichols claimed that as a Christian, he must adhere to a high fiber diet of whole foods.

In Mauwee v. Palmer, 2010 U.S. Dist. LEXIS 131704 (D NV, Nov. 29, 2010), a Nevada federal district court dismissed a free exercise claim by a Native American spiritual leader who alleged that an eagle talon he possessed was confiscated by a prison officer.

In Wing v. Braye, 2010 U.S. Dist. LEXIS 131906 (SD IL, Dec. 14, 2010), and Illinois federal district court rejected as a de minimis burden on free exercise an officer's order to a Catholic inmate to either leave the prison chapel where no services were in progress or stay in a classroom where a Muslim class was under way.

In Howard v. Skolnik, 2010 U.S. Dist. LEXIS 132323 (D NV, Dec. 1, 2010), a Nevada federal magistrate judge concluded that plaintiff had not alleged sufficient irreparable harm to justify a preliminary injunction in his suit seeking reinstatement of Nation of Islam services in English at his former housing facility and an Order preventing his new housing facility from cancelling the Nation of Islam services.

In Lebaron v. Clarke, 2010 U.S. Dist. LEXIS 133156 (D MA, Dec. 3, 2010), a Massachusetts federal district court denied without prejudice ex parte injunctive relief requested by a Messianic Jewish prisoner who claimed that he was being retaliated against for requesting kosher meals, and that the kosher meals he receives are too small. He also claimed his request for religious materials and a place to study were denied.

In Riley v. Jones, 2010 U.S. Dist. LEXIS 132866 (D OK, Dec. 15, 2010), an Oklahoma federal district court adopted the recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 133064, Nov. 19, 2010) and dismissed plaintiff's free exercise and RLUIPA challenges to the prison's vegetarian diet and plaintiff's claim that his rights were violated when he was switched from a religious vegetarian diet to a health diet ordered by doctors.

County Commission Says Denial of Increased Occupancy To Chabad House Does Not Violate RLUIPA

The Ventura County,California Planning Commission ruled Thursday that the county's Board of Supervisors did not violate the Religious Land Use and Institutionalized Persons Act when it refused an application from Chabad of Oak Park to raise the occupancy limits for Jewish Sabbath and religious services at a converted house used by the group as a synagogue. According to the Ventura County Star, Chabad wants to raise the limits from 70 to 145, saying the building can safely hold that number. The Board of Supervisors says that Chabad agreed to the 70 person limit in 1994 when it negotiated for a permit for the house. Fire inspectors say the building can hold up to 168 people safely.  Chabad says its members, who do not drive on the Sabbath, cannot easily get to other religious services if they show up and find that 70 people are already attending. Even though the Planning Commission ruled 4-1 that the county had used the least restrictive means to carry out its compelling zoning interests, the Commission said it hoped that the Supervisors would decide to raise the occupancy limit over the current 70. Chabad says it is not interested in compromising on a number less than 145.

Temporary Injunction Bans Christian Prayers At Municipal Council Meetings

The ACLU of New Jersey announced Friday that a state trial court has issued a temporary injunction barring the borough of Point Pleasant Beach (NJ) from opening municipal council meetings with prayers that reflect the personal religious belief of the council member offering the invocation.  Under a previous policy, the council opened its meetings with the clerk reciting the Lord's Prayer and making the sign of the cross.  When the ACLU filed suit in September (see prior posting), council agreed to end that policy and the suit was dropped.  However council then adopted a policy that allowed council members to lead prayers, resulting in the continuance of only Christian prayers at meetings. The ACLU claims that the practice violates provisions in the New Jersey Constitution that require government not to show a preference for one religion over another.

Federal Reserve Board Backs Off Policy of Barring Religious Displays In Bank

The Federal Reserve Board's Regulation B (12 CFR Part 202) implementing the Equal Credit Opportunity Act prohibit banks from making statements in their advertising or otherwise that would discourage an applicant for credit from applying because of the applicant's race, religion,gender marital status or age. (12 CFR 202.4). A Staff Interpretation of that provision provides that: "The use of words, symbols, models or other forms of communication in advertising that express, imply, or suggest a discriminatory preference or a policy of exclusion in violation of the Act." Examiners inspecting a bank in Perkins, Oklahoma last week created a stir by insisting that the bank's display of religious messages is in violation of this policy.

According to KOCO News, display of a Bible verse of the day on a screen in the bank and on the bank's website, crosses on the teller’s counter and buttons that say "Merry Christmas, God With Us," were seen by examiners as violating Regulation B. According to another report by KOCO News, U.S. Sen. Jim Inhofe and U.S. Rep. Frank Lucas sent a letter to the Federal Reserve Board calling the action an "all-out assault on the faith, values and rights of the bank, its employees and the people it serves". This led the Fed changed its mind. The president of Payne County Bank, Lynn Kinder, said that both sides have agreed to work out the issue and in the meantime the Fed has allowed the bank to restore its display of Christian items and verses. [Thanks to ReligionLaw listserv for the lead.]

Senate Passes DADT Repeal for Obama's Signature; Opponents Vow To Fight On

AP reports that the U.S. Senate today voted 65-31 to approve and send to the President for his signature the Don't Ask, Don't Tell Repeal Act of 2010. An identical bill was passed by the House earlier this week. (See prior posting.) The bill provides for ending of DADT 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. The President has promised to sign the bill into law. Earlier today he issued a statement reading in part:

It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed. It is time to allow gay and lesbian Americans to serve their country openly. I urge the Senate to send this bill to my desk so that I can sign it into law.

In response to the Senate's action,  the Freedom Federation, a coalition of conservative religious and public policy groups issued a statement promising to fight for a reversal of Congress' action, saying:

Our armed forces should take heart, because the American people will not turn its back on you. This vote happened because opportunistic Senators – only days before Christmas – put political interest groups above supporting our men and women in uniform.

This action will be overturned in the next Congress because it breaks the bond of trust that must exist between the military and those who command in the Pentagon and Congress. Today’s vote will prove as costly to its proponents as ObamaCare was to its advocates. We promise a full mobilization of faith-based and policy organizations, veterans, and military families in the states of every Senator who voted for repeal of DADT against the advice of our service chiefs and during a time of war. Those Senators – and the Pentagon leaders responsible for this breach of trust – should understand that they will be the object of concerted political action against them.

Indiana County Will Not Remove Creche

Today's Richmond, Indiana Palladium-Item reports that Franklin County, Indiana Commissioners say that unless ordered to do so by a court, they will not remove a nativity scene owned by the town of Brookville and placed on the court house lawn around the flag pole each year by fire fighters.  The Freedom from Religion Foundation had complained about the display which is not part of a larger holiday display with secular symbols. (FFRF News Release with photo and letter.) A pair of reindeer is also on the court house lawn, but not near the nativity scene. County Commissioner Tom Wilson says that a donated Christmas tree was added to try to make the display more secular. 500 people rallied Saturday in support of the nativity scene. Wilson commented: "If we let them do this, let them take Christmas away, what's next?... If you ruffle the feathers of the people of Franklin County, you better be ready to fight because they know how to counterpunch."

Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials

Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.

European Court Finds Problem With Ireland's Abortion Law Implementation

Yesterday in Case of A, B and C v. Ireland, (ECHR, Dec. 16, 2010), the Grand Chamber of the European Court of Human Rights dealt with challenges by three Irish women to Ireland's ban on abortions. The country's Constitution bans abortion. It however allows women to travel abroad for an abortion and allows abortions in Ireland where the mother's life (but not merely her health) is threatened. The Court found that the failure of the Irish parliament to implement the provisions on protection of a mother's life violates the European Convention on Human Rights. As summarized in the court's Press Release on the case:

Having regard to the first and second applicants’ right to travel abroad to obtain an abortion and to appropriate pre- and post-abortion medical care in Ireland, as well as to the fact that the impugned prohibition in Ireland on abortion for health or well-being reasons was based on the profound moral values of the Irish people in respect of the right to life of the unborn, the Court concluded that, the existing prohibition on abortion in Ireland struck a fair balance between the right of the first and second applicants to respect of their private lives and the rights invoked on behalf of the unborn.

However the Court found a violation of Article 8 of the European Convention on Human Rights as to the third woman. Again from the Court's Press Release:

[T]he third applicant had a rare form of cancer and she feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to her life clearly concerned fundamental values and essential aspects of her right to respect for her private life.

It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective. The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment if an initial doctor’s opinion that abortion was an option as it posed a risk to the woman’s health was later found to be against the Irish Constitution.

Neither did the Court consider recourse by the third applicant to the courts (in particular, the constitutional courts) to be effective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion.... Consequently, the Court concluded that Ireland had breached the third applicant’s right to respect for her private life given the failure to implement the existing Constitutional right to a lawful abortion in Ireland. Accordingly, there had been a violation of Article 8.

Six dissenting judges would have found that the rights of all three women were infringed.  The Guardian reports on the decision.

White House Enlists Clergy To Back DREAM Act

Religion Dispatches reports that the White House yesterday hosted a call for reporters with four members of the clergy who are supporting passage of the DREAM Act.  The Act offers citizenship to young people brought to the U.S. illegally as children who pursue higher education or join the military. Speaking in favor of the bill, Noel Castellanos of the Christian Community Development Association; Rabbi Jack Moline of Agudas Achim Congregation in Alexandria, VA; Pastor Joel Hunter of Northland, A Church Distributed in Longwood, Florida; and Pastor Rich Nathan of Vineyard Columbus in Columbus, Ohio all focused on the religious imperative to welcome the stranger. A version of the DREAM Act passed the House earlier this month (Skokie Patch), but Senate action is now required.

New Swiss Policy Will Bar U.S. Missionaries

The Rexburg, Idaho Standard Journal yesterday reports that Switzerland will effectively bar all missionaries from non-European countries from serving in Switzerland beginning in 2012.  In 2002, a bilateral accord between Switzerland and the European Union provided that European nationals can enter Switzerland to work, but work permits for people from other countries were severely restricted. Then recently a Swiss court held that missionary work is "gainful employment" and so is subject to the quotas on work permits.  The restrictions pose a particular problem for the Mormon Church which has a long history of sending missionaries to Switzerland.  In August, 14 US Senators wrote the Swiss government urging that LDS missionaries be allowed to continue coming into the country, pointing out that these missionaries are not paid while on missions.  So theydo not compete with other workers nor do they receive social benefits from the Swiss government.

DC Circuit Upholds FTC Jurisdiction Over Purported Religious Organization

In Daniel Chapter One v. FTC, 2010 U.S. App. LEXIS 25496 (DC Cir., Dec. 10 2010), the D.C. Circuit Court of Appeals held that an organization's formal legal status as a religious corporation sole does not prevent the Federal Trade Commission from regulating its advertisements for dietary supplements.  The organization in fact operated as a for-profit entity generating economic benefits for its founder and his wife. The court also rejected petitioner's argument that the FTC violated the Establishment Clause by using "scientism" as the basis for its requirements.

DADT Repeal Passes House, Goes To Senate

Yesterday, by a vote of 250- 175, with 9 members not voting, the U.S. House of Representatives passed, and sent to the Senate, HR2965 [corrected]-- the Don't Ask Don't Tell Repeal Act of 2010.  The bill provides for ending of DADT 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. According to the Washington Post, the Senate, where passage seems likely, will not vote on the bill until next week at the earliest.

Indonesian Court Sentences American For Pulling Plug On Mosque Loud Speakers

AFP yesterday reported that a court in Indonesia has sentenced Gregory Luke, a 64-year old American who runs a guest house for tourists on Lombok Island, to five months in jail for blasphemy, carrying out an act of violence and hampering people in Kute village from performing their religious activities. The court found that in August during Ramadan, Luke pulled the plug on loud speakers used by the local mosque to broadcast the call to prayer. Luke has denied doing so, saying he went to the mosque to ask them to lower the volume when a group of local youths attacked him and ransacked his home with the police looking on. Luke says he is "satisfied" with the judge's ruling. Prosecutors had sought a 7-month sentence.

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."