UN Approves US-Led Campaign To Restore Reference To Sexual Orientation In Resolution Against Arbitrary Executions

Yesterday by a vote of 93 to 55 with 27 abstentions, the United Nations General Assembly approved a United States sponsored move to restore a reference to sexual orientation in a resolution that condemns extrajudicial, summary and arbitrary executions. Reuters reports that the resolution condemns killings for racial, national, ethnic, religious or linguistic reasons and killings of refugees, indigenous people and other groups. Similar resolutions in prior years also referred to sexual orientation, but this year a General Assembly committee approved a proposal by Arab and African nations to eliminate that reference. The United States led the effort to restore the reference. According to Politico, the U.S. though ended up abstaining when the overall resolution including the reference to sexual orientation was put to a vote. The U.S. action was for totally different reasons-- concern that the resolution obscures the relationship between international humanitarian law and human rights law.

After the U.N. vote approving the U.S. proposal, the White House issued a statement (full text) reading in part:

President Obama applauds those countries that supported the amendment offered by the United States to ensure that "sexual orientation" remains covered by the United Nations resolution on extrajudicial, summary, and arbitrary execution. Killing people because of their sexual orientation cannot be rationalized by diverse religious values or varying regional perspectives. Killing people because they are gay is not culturally defensible – it is criminal.

While today’s adoption of an inclusive resolution is important, so too are the conversations that have now begun in capitals around the world about inclusion, equality, and discrimination. Protecting gays and lesbians from state-sponsored discrimination is not a special right, it is a human right.

Lawsuit Claims Transportation Utility Fee Is Illegal Disguised Property Tax On Churches

On Monday, a lawsuit was filed in state court in Kansas on behalf of a Baptist and a Catholic church challenging a new tax provision adopted by the city of Mission, Kansas.  The complaint (full text) in First Baptist Church of Mission v. City of Mission, (Johnson Co. Dist. Ct., filed 12/20/2010), argues that the city's Transportation Utility Fee is in reality a property tax levied on churches that are exempt under state law from property taxation. The tax is based on the average number of vehicle trips which it is estimated are generated by a property each year.  For houses of worship, this is based on the number of seats in the building's worship area. The proceeds of the tax are used for street repairs and transit system maintenance.  An Alliance Defense Fund press release announcing filing of the case characterizes the Transportation Utility Fee as a tax that punishes churches based on their attendance.

Split 10th Circuit Denies En Banc Review In Utah Highway Patrol Cross Case

The 10th Circuit Court of Appeals this week by a 5-4 vote denied an en banc rehearing in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). The 4 dissenting judges filed two opinions detailing their concerns about the 3-judge panel's ruling handed down in August. That decision held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. [corrected]. (See prior posting.) Urging en banc review, Judge Kelly writing for all four dissenters said:

The court’s decision continues a troubling development in our Establishment Clause cases—the use of a "reasonable observer" who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion.

A second dissent from denial of review written by Judge Gorsuch and joined by Judge Kelly said in part:

Our court has now repeatedly misapplied the "reasonable observer" test, and it is apparently destined to continue doing so until we are told to stop.... It seems we must ... take account of our observer's selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia.

[Thanks to Don Byrd for the lead.] 

Human Rights Watch Publishes Its Stance On Europe's Ban on Muslim Veils

In response to the growing trend in European countries to ban religious dress in public places-- particularly face coverings worn by Muslim women-- Human Rights Watch yesterday published Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. It says in part:

Human Rights Watch takes no position on whether the wearing of the headscarf or face covering veils is desirable. We oppose both policies of forced veiling and blanket bans on the wearing of religious dress. Insofar as religious freedom is involved, we defend this right in the same spirit we defend freedom of expression - we uphold the right to express opinions which some deem contrary to the principles of human dignity, tolerance and respect, and which may deeply offend, because of the fundamental importance of freedom of religion and expression in democratic societies.

We also oppose laws prohibiting civil servants, including teachers, from wearing religious symbols at work, unless it has been shown that those symbols have a direct impact on their ability to perform their jobs.

6th Circuit Majority Holds Zoning Challenge By Religious Order Is Not Ripe

In Miles Christi Religious Order v. Township of Northville, (6th Cir., Dec. 21, 2010), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. Plaintiff, a Catholic Religious Order, had not appealed to the zoning board of appeals the township's demand for a site plan for continued use of its property. In response to the Order's argument that the township's actions chilled its constitutionally protected activity, the majority said:

a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities.

Chief Judge Bachtelder dissenting argued that: "the majority opinion does not adequately account for the First Amendment implications of this case and conflates the exhaustion of administrative remedies with the obtaining of a final decision...." [Thanks to Brian D. Wassom for the lead.]

6th Circuit: Collateral Estoppel Bars Relitigation of State Secrets Dismissal of Civil Rights Claim

In Tenenbaum v. U.S. Department of Defense, (6th Cir., Dec. 20, 2010), the U.S. 6th Circuit Court of Appeals held that the doctrine of collateral estoppel prevents plaintiffs from relitigating the application of the "state secrets" doctrine to their claim against the federal government. Plaintiff David Tenenbaum, a civilian employee of the Army, was subjected to an intensive investigation in 1997 over allegations that he had revealed classified information to the Israeli government. In 1998, Tenenbaum and his wife sued for violation of their civil rights, including an allegation that Tenenbaum's religion was a factor in the government's deciding to investigate him. That suit was dismissed when the government asserted that it could not mount a defense without disclosing state secrets. Following submission by DOD Inspector General of a report on the matter to the U.S. Senate Armed Services Committee in 2008, plaintiffs filed the present lawsuit alleging that defendants knowingly lied when they asserted the state secrets privilege in 1998. The Court held, however, that the question of whether the state secrets privilege had been properly invoked had already been litigated in 1998. Yesterday's Chicago Tribune reports on the decision. (See prior related posting.)

Italian Court Refuses To Release Vatican Funds Held In Money Laundering Probe

For a second time, a court in Italy has refused to release $30.2 million in funds belonging to the Vatican Bank (the Institute for the Works of Religion) seized in September by Italian authorities in a money laundering investigation. (See prior posting.) The funds were in a Vatican Bank account at the Rome branch of Credito Artigiano SpA.  According to AP yesterday, court documents show that prosecutors suspect that clergy may have been front men for corrupt businessmen or mobsters.

11th Amendment Protects Against Official Capacity, But Not Individual Capacity, Suit Against Judge

In Pucci v. Nineteenth District Court, (6th Cir., Dec.16, 2010), the U.S. 6th Circuit Court of Appeals held that a state court and its judge in his official capacity have 11th Amendment immunity in a suit by the former deputy court administrator who claims she was dismissed in retaliation for her complaints to state officials about the judge's use of religious language from the bench. The 6th Circuit went on to hold, however, that plaintiff may sue the judge in his individual capacity for declaratory and injunctive relief. The court concluded Chief Judge Mark Somers did not have qualified immunity as to plaintiff's due process or First Amendment claims against him. Local attorneys as well as plaintiff complained about Somers.  The 6th Circuit included this excerpt from the record setting out complaints about the judge's conduct:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] . . . [according to Foran,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during . . . Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

 Courthouse News Service reports on the decision. (See prior related posting.)

Virginia Legislator Plans To Propose Barring Gays From National Guard Service

Conservative Virginia state legislator Bob Marshall is raising a new kind of constitutional issue by his plans to introduce legislation in the Virginia legislature's House of Delegates that would ban gays from serving in the Virginia National Guard.  WTOP News reported yesterday that the move comes in response to Congress' recent passage of a repeal of Don't Ask, Don't Tell. Critics say that the National Guard is a federal military unit and that federal law would override any state limitation.  However Del. Marshall argues that states would never have ratified the U.S. Constitution if they did not retain unqualified control of their militias.

Turkey Will Include Alevis In New Textbooks

In Turkey, Faruk Celik, Minister of Work and Social Security, announced that new textbooks which incorporate information about the 6 to 12 million Alevis in the country will be available for the 2011-12 school year.  According to Today's Zaman, the new textbooks grow out of a government initiative directed at dealing with complaints by Alevis that their children in public schools are required to attend religious classes that focus on Sunni Islam. However Federation of Alevi-Bektaşi Associations Chairman Ali Balkız said his organization could not support compulsory religion classes, even if they include information about Alevism and Alevi figures.

Pope Sees Clergy Sex Abuse As Product of Moral Relativism

Pope Benedict XVI yesterday delivered an address (full text) during his traditional pre-Christmas meeting with the cardinals, archbishops, bishops, and members of the Roman Curia and of the Governorate of Vatican City State.  A significant portion of his remarks were an analysis of the clergy sex abuse scandal. He said in part:

In the vision of Saint Hildegard, the face of the Church is stained with dust.... We must accept this humiliation as an exhortation to truth and a call to renewal.... We must ask ourselves what we can do to repair as much as possible the injustice that has occurred. We must ask ourselves what was wrong in our proclamation, in our whole way of living the Christian life, to allow such a thing to happen....  

We are well aware of the particular gravity of this sin committed by priests and of our corresponding responsibility. But neither can we remain silent regarding the context of these times in which these events have come to light. There is a market in child pornography that seems in some way to be considered more and more normal by society. The psychological destruction of children, in which human persons are reduced to articles of merchandise, is a terrifying sign of the times. From Bishops of developing countries I hear again and again how sexual tourism threatens an entire generation and damages its freedom and its human dignity.... In this context, the problem of drugs also rears its head, and with increasing force extends its octopus tentacles around the entire world – an eloquent expression of the tyranny of mammon which perverts mankind.....

In order to resist these forces, we must turn our attention to their ideological foundations. In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained – even within the realm of Catholic theology – that there is no such thing as evil in itself or good in itself. There is only a "better than" and a "worse than"..... Everything depends on the circumstances and on the end in view.... Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today. Against them, Pope John Paul II, in his 1993 Encyclical Letter Veritatis Splendor, indicated with prophetic force in the great rational tradition of Christian ethos the essential and permanent foundations of moral action. Today, attention must be focussed anew on this text as a path in the formation of conscience.... 

Holidays At The White House Web Page

The White House Website currently features a page captioned Holidays at the White House. It carries videos of various holiday activities by the First Family, announces this year's White House holiday theme as "Simple Gifts," and furnishes holiday recipes and an online White House tour.

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.]