Pakistan's Islamic Parties Call For New Year's Eve General Strike To Protest Blasphemy Repeal Efforts

Pakistan's Express Tribune today reports that a group of Islamic political parties in Pakistan have called for a general strike on December 31 to protest proposals to repeal the country's blasphemy laws.  The political parties also plan a mass demonstration in Karachi on January 9.

Religious Discrimination Suit On Behalf of Fired Santeria Employee Settled

According to today's Fayetteville (NC) Observer, the manufacturer GKN Dirveline North America has settled a religious discrimination lawsuit filed against it by the EEOC just a week before the suit was to go to trial. The company had been charged with failing to accommodate the religious beliefs of a Santeria employee who refused to submit a saliva sample for drug testing, but offered to undergo an alternative form of testing. Dismissed employee Dwayne Butler believes he can only provide saliva for a religious purpose. The company will pay $36,432 in damages, provide training on religious discrimination and post a notice concerning employee rights.

Senate Confirms 4 EEOC Recess Appointees

The U.S. Senate last week (Dec. 22) confirmed four of President Obama's long-pending nominations to positions at the Equal Employment Opportunity Commission. An EEOC press release announces the confirmation of Jacqueline A. Berrien to be EEOC Chair; Chai R. Feldblum and Victoria A. Lipnic to be Commissioners; and P. David Lopez as General Counsel. In March the President had given recess appointments to these four (see prior posting).  Christian conservatives had objected particularly to Feldblum's nomination as the first openly gay or lesbian person to be nominated to the EEOC. (See prior posting.) The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

En Banc Rehearing Granted In Suit Over Student Distribution of Religious Themed Materials

Earlier this month, the U.S. 5th Circuit Court of Appeals issued an order granting an en banc rehearing in Morgan v. Swanson.  A 3-judge panel in the case refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. Though the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) [Thanks to Don Byrd for the lead.]

Top Ten 2010 Religious Liberty/ Church-State Developments

Here are my nominations for the 2010 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. Most of these top ten were reflected in a number of Religion Clause postings over the year. I have linked to representative postings on each issue.

• (1) Ground Zero Mosque becomes national political issue while opponents of Tennessee mosque argue that Islam is not entitled to protection as a religion.
  
• (2) California federal district court invalidates Proposition 8, the California initiative that bars same-sex marriage.
  
• (3) Oklahoma voters approve anti-Shariah state constitutional amendment; court enjoins certification of results.
  
• (4) France bans wearing of burqa in public.
  
• (5) Leaders of women's Catholic religious orders split with bishops over health care reform proposals.
  
• (6)  Florida church creates international furor by proposing "Burn a Qur'an Day" for 9-11 anniversary. Eventually event is cancelled.
  
• (7) Military chaplains oppose repeal of Don't Ask Don't Tell.
  
• (8) Supreme Court upholds Hastings College of Law policy of requiring student religious groups to accept anyone as member in Christian Legal Society v. Martinez.
  
• (9) Federal district court declares that federal statute designating National Day of Prayer is unconstitutional.
  
• (10) 9th Circuit upholds pledge of allegiance, and "in God We Trust" on coins and currency, against Establishment Clause challenges.

Religion Newswriters Association and Huffington Post have their own Top Ten lists of religion stories.

Australian Anti-Discrimination Law Exempts Religious Foster Care Agency

In OW and OV v Members of the Board of the Wesley Mission Council, (NSWADT, Dec. 10, 2010), the Administrative Decisions Tribunal of the Australian state of New South Wales held that the New South Wales Anti-Discrimination Act does not require a religiously-sponsored social service organization to approve same-sex couples as foster care providers. Section 56 of the Act exempts any act or practice of a religious body "that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion." Here, Wesley Mission believed that a monogamous heterosexual partnership in marriage should be the role model for children for whom it provides foster care. Sydney's Daily Telegraph today reports on the decision.

South Korean Parliament Fails To Act On Tax Benefits For Sukuk At Urging of Christian Groups

Arab News reports today that the South Korean National Assembly failed to approve a bill introduced by the Ministry of Finance that would have given tax neutrality to Shariah-compliant financial instruments. It would have given sukuk (Islamic bonds) the same tax treatment as conventional bonds.  According to this report, some members of the National Assembly have been heavily lobbied by Christian evangelical groups, some of which have close ties to groups in the United States. The Korean Association of Church Communication is among the groups that have generated concern that approval would facilitate the flow of funds to terrorist groups.

Recent Articles of Interest

From SSRN:

• Reid Krell, And the Spirit of the Lord Spake within Them: Biblical References by State Supreme Courts, 1900-1999, (December 20, 2010).
• Charles Hillel Baron, Blood Transfusions, Jehovah’s Witnesses, and the American Patients’ Rights Movement, (Alternatives to Blood Transfusion in Transfusion Medicine, Alice Maniatis, Phillipe Van der Linden, Jean-François Hardy, eds., Wiley-Blackwell, 2010).
• Allen Mendenhall, The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India, (Libertarian Papers, Vol. 2, No. 44, 2010).
• Robert C. Blitt, The Bottom Up Journey of 'Defamation of Religion' from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas,  (December 22, 2010).
• Micah Schwartzman, The Ethics of Reasoning from Conjecture, (Journal of Moral Philosophy, Forthcoming).
• Seth Barrett Tillman, The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment and Assassination, (2010).
• Susan Haack, Belief in Naturalism: An Epistemologist's Philosophy of Mind, (Logos Episteme, Vol. 1, No. 1, pp. 67-83, 2010).
• Arthur J. Jacobson, Prophecy as Expertise, (Hebraic Political Studies, Vol. 4, No. 4, pp. 329-336, Fall 2009).

European Project On Religious Diversity and Secular Models Launches Website

RELIGARE, a project funded by the European Commission that brings together 13 European universities and research centers, has launched a website.  The project's longer descriptive title is Religious Diversity and Secular Models in Europe-- Innovative Approaches to Law and Policy. The website includes publications, documents, case summaries and more. A link now appears on the Religion Clause sidebar under Resources. [Thanks to Prof. Rafael Palomino for the lead.]

Teacher Loses Challenge To School's Demand She Apologize For Her Class On Evolution

In Hensley v. Johnston County Board of Education, 2010 U.S. Dist. LEXIS 135926 (ED NC, Dec. 23, 2010), a North Carolina federal district court dismissed free speech, equal protection and religious discrimination claims by an 8th grade science teacher who refused to apologize to parents over her method of teaching evolution and dealing with religious objections to evolutionary theory.  After a parent complained that teacher Pamela Hensley was antagonistic to "true Christian" students, the school presented Hensley with a letter to sign to go out to parents apologizing for the manner in which she conducted the class discussion about God, religion and evolution. Ultimately she refused to sign the letter and was transfered to a different school. The court concluded:

her decision not to send the letter requested by her employer, in her capacity as a teacher, is not protected by the First Amendment. Because Hensley was asked to speak in her official capacity as a public employee, her refusal to speak does not give rise to a claim for violation of her First Amendment rights....

Recent Prisoner Free Exercise Cases

In McKinnon v. Watson, 2010 U.S. Dist. LEXIS 133550 (WD VA, Dec. 17, 2010), a Virginia federal district court granted summary judgment to prison officials who had been sued by a Nation of Islam prisoner for delay in approving his religious diet request. The court held that defendants had qualified immunity.

In Norman v. Small, 2010 U.S. Dist. LEXIS 133507 (SD CA, Dec. 14, 2010), an inmate alleged among other claims that his free exercise rights were violated because prison policy allowed him to be searched in front of female officers in violation of his Islamic religious beliefs. A federal magistrate judge recommended (2010  U.S. Dist. LEXIS 133557, July 29, 2010) that this claim be dismissed both for failure to exhaust administrative remedies and for failure to state a claim. The district court adopted the recommendation to dismiss on exhaustion grounds, but said it would therefore not address whether the claims should also be dismissed on the merits.

In Wilder v. Sutton, 2010 U.S. Dist. LEXIS 134677 (SD IL, Dec. 21, 2010), an Illinois federal district court permitted a Wiccan prisoner to go to trial on claims that his rights  under the 1st and 14th Amendments were violated when his requests for materials that would permit him to practice his religion were ignored and he was told he could not practice his religion in prison.  However the court held that damages are not available in either individual or official capacity claims under RLUIPA (which he also invoked) and that his claim for an injunction is moot because he had been transfered to a different facility.

In Cullen v. Pennsylvania Department of Corrections, 2010 U.S. Dist. LEXIS 134882 (WD PA, Dec. 21, 2010), a Pennsylvania federal district court rejected that an inmate's complaint that his free exercise rights were infringed when his refusal to take part in a Therapeutic Community program was used against him in considering his parole. Plaintiff failed to allege his religious beliefs or how they were impinged. He alleged primarily that program required that inmates inform on one another's behaviors and prohibited the use of the words "God" or "Higher Power" in program sessions.

In Young v. Ericksen, 2010 U.S. Dist. LEXIS 134606 (ED WI, Dec. 20, 2010), a Wisconsin federal district court permitted a Muslim inmate who was held in protective custody and denied the right to attend group Jum'ah services, as well as being denied a visit by a volunteer imam, to proceed with his free exercise and RLUIPA claims.

Proposals In Pakistan To Temper Blasphemy Law Meet With Street Protests

CNN reported yesterday that Pakistan's federal minister for minority affairs has announced the formation of a committee of scholars to review the country's blasphemy laws to prevent them from targeting innocent people. The move comes in the wake of a controversial death sentence for blasphemy imposed on a Christian woman, Asia Bibi. Pakistan's President says he would pardon Bibi, but a court has ruled that the president cannot grant a pardon while the case is still working its way through the courts. (See prior posting.) Press TV reports that thousands of Pakistani Muslims demonstrated in major cities around the country protesting a bill that has been introduced into Parliament that would remove the death penalty for blasphemy.

White House Sends Christmas Greetings

CNN has the full text of the Weekly Address by the President, this week joined by the First Lady, wishing everyone a Merry Christmas. The President said in part:

Because this is the season when we celebrate the simplest yet most profound gift of all: the birth of a child who devoted his life to a message of peace, love, and redemption. A message that says no matter who we are, we are called to love one another – we are our brother’s keeper, we are our sister’s keeper, our separate stories in this big and busy world are really one....

[W]e're encouraging Americans to ask what you can do to support our troops and their families in this holiday season. For some ideas on how to get started, just visit Serve.gov..... America's brave servicemen and women represent a small fraction of our population. But they and the families who await their safe return carry far more than their fair share of the burden. They've done everything they’ve been asked to do..... So let’s all remind them this holiday season that we’re thinking of them – and that America will forever be here for them, just as they've been there for us.

The White House website today also carries an interview with Diane Roussel-Dupre, the "Santa Tracker Head Researcher" at the Department of Energy's Los Alamos Laboratory. Here is part of the interview:

Q: What is the hardest part of keeping track of Santa?

Diane Roussel-Dupre: Because of his wish to surprise, Santa does not file a flight path with the Federal Aviation Administration, so we never really know where he will be.

Q: What technologies do you use?

Diane Roussel-Dupre: We believe that Rudolph's glowing, bright red nose puts out optical and infrared light that makes him easy to detect, allowing an optical camera on FORTE to give us a glimpse of Santa and his team. Also, the Federal Aviation Administration requires Santa to fly with a radio transponder on his sleigh, similar to what airplanes use, to ensure flight safety around the world. This transponder can be detected with the radio receiver that flies on-board both the FORTE and Cibola Flight Experiment (CFE) satellites. We will also be using the star cameras on the CFE satellite to look for Rudolph and the rest of the reindeer pulling Santa's sleigh.

4th Circuit Rejects Establishment Clause Challenge To County's Role In Development That Includes Church

In Glassman v. Arlington County, Virginia, (4th Cir., Dec. 23, 2010), the U.S. 4th Circuit Court of Appeals rejected an Establishment Clause challenge to Arlington County, Virginia's participation in the financing and construction of a ten story building that houses a church on the first two floors and apartments on the upper 8 floors. Plaintiff unsuccessfully argued that (1) the County had engaged in disguised funding of the church by overvaluing the affordable housing units in the project; (2) the physical layout of the building, in which the apartment tenants will pass through church property, creates a religious overtone to the project; and (3) the County became excessively entangled with the church when it appointed a representative to the Church-controlled board of the non-profit corporation that will over see construction of the project. (See prior related posting.)

Woman Challenges Virgin Islands License Photo Rule

Yesterday's Virgin Island Daily News reports that a Muslim woman is challenging a policy of the Virgin Islands Bureau of Motor Vehicles that allows her to have her drivers' licence photo taken wearing her hijab (head scarf) only if she produces a letter from her imam.  License applicant Nailah Jamil says she was told she needed a notarized affidavit from the imam, though now authorities say notarization is not required. The Council on American-Islamic relations has sent a letter to the BMV director on behalf of Jamil saying that the Virgin Islands' photo policy is "contrary to all federal, state and local government photography guidelines, which provide for religious exemptions."

New Minnesota Judge Pick Represented Conservative Christian Groups

The Minnesota Independent reports that on Tuesday, Minnesota's Gov. Tim Pawlenty appointed attorney Jamie L. Anderson to a vacancy created by a retirement on the state's 4th District (Hennepin County) Court. Anderson is the wife of the Governor's chief of staff and has represented conservative religious groups in high profile cases.  She represented the Minnesota Family Council in its effort to intervene as a defendant in a case challenging Minnesota's ban on same-sex marriage. In 2009, she was one of the lawyers who represented the Child Evangelism Fellowship of Minnesota in a case in which it was seeking an equal right with secular groups to to send Christian literature home with students. In 2007, Anderson was a lobbyist for born-again-Christian Frank Vennes who was a large donor to evangelical groups. However Anderson's primary areas of practice are business law, wills and trusts, probate and real estate. In appointing Anderson, Gov. Pawlenty bypassed the state's Commission on Judicial Selection which makes recommendations to the governor.  Legally governors may bypass the Commission and others have also done so.

Pakistan's Federal Shariat Court Asserts Expanded Jurisdiction; Invalidates Provisions of Women's Protection Act

On Wednesday, according to Business Recorder, Pakistan's Federal Shariat Court (FSC) declared three sections of the 2006 Women's Protection Act void, finding that the provisions violate Section 203DD of Pakistan's Constitution. That section defines the jurisdiction of  the FSC as including the power to reveiw the finding of any criminal court under any law relating to the enforcement of Hudood. An editorial from the Pakistan's Daily Times describes the effect of the FSC's ruling. It says that the FSC decision:

seeks to restore the primacy of Hudood laws in cases relating to the offence of zina (adultery) and qazaf (false accusation of adultery), which have a long history of abuse and injustice. The Women’s Protection Act 2006 omitted two sections of the Hudood Ordinances which, to some extent, reduced the likelihood of abuse of these laws against women accused of adultery. Their cases could now be tried under the Pakistan Penal Code, instead of exclusively under the Hudood Ordinance. 

However, not only did the FSC declare Sections 11, 25, 28 and 29 of the Women’s Protection Act 2006 un-Islamic and unconstitutional on the premise that the overriding effect of the Hudood Ordinances over other laws could not be taken away, it also asserted that the jurisdiction to hear appeals under any law relating to ten offences covered by the term ‘hudood’ for the purpose of Article 203 DD of the constitution lies with the FSC and not the high courts. The FSC thus gave parliament time till June 22, 2011 to make amendments to the Women’s Protection Act to restore these clauses, otherwise the court’s verdict would stand and these clauses would be considered restored. The court also directed the government to amend the Control of Narcotic Substances Act of 1997 and Anti-Terrorism Act 1997 to lay down a procedure for filing of appeals to the FSC instead of a high court for such offences.... 

According to the Business Recorder, the ten offenses over which the FSC has asserted jurisdiction are: Zina (adultery), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of adultery), Shurb (alcoholic drinks/intoxicants/narcotics etc), Sarqa (theft simplicitor), Haraba (robbery, highway robbery, dacoity - all categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code), Irtdad (apostasy), Baghy (treason), Qisas (right of retaliation in offences against human body) and human trafficking.

TSA Procedures Continue To Offend Some On Religious Grounds

Today's Washington Post carries an article titles TSA Procedures Offend Followers of Many Faiths. It reports that while Muslim women are particularly offended by the full body scanners in use at airports, they are not alone. Sikhs (who are often required to remove their turbans), some Orthodox Jews and some evangelical Christians also object on religious grounds, citing modesty concerns. Some say that TSA's rules that call for secondary screening for those wearing "bulky clothing" are applied subjectively with a bias against religious headgear.

High School Teacher In Spain Sued By Muslim Family For Discussing Ham

Hudson New York reports on a lawsuit filed recently in Spain by parents of a Muslim high school student charging a high school geography teacher with violating Article 525 of the Spanish Penal Code that makes it illegal to "offend the feelings of members of a religious confession." José Reyes Fernández, a teacher at Menéndez Tolosa, a school in the town of La Línea de la Concepción, was focusing on the different climates in Spain. He said that the climate in Andalusia was perfect for curing Spanish ham. A Muslim student interrupted and said that talk of pork products is offensive to his religion. According to the article, this lawsuit follows several other controversies in Spain with members of the Muslim community. For example, in September a recently reopened night club in the southern Spanish resort town of Aguilas was pressured by Muslims to change its name from La Meca. The owners also agreed to change some of club's architecture such as a minaret-like tower that Muslims found offensive.

No Federal Jurisdiction Over Claim Against Church Alleging Homosexual Activities

In Hayes v. Wooten, 2010 U.S. Dist. LEXIS 134569 (ED NC, Dec. 14, 2010), a North Carolina federal district court dismissed a federal lawsuit against Elevation Baptist Church and several of its leaders by a pro se plaintiff who alleged various claims growing out of his attendance at a group discussion at which he claims homosexual approaches were made to him and his attendance with his son at a church event called "Boys to Men" which he claims turned out to have a "very homosexual character in nature and spirit." The court found no federal jurisdiction over the claims-- many of which were claims under state law. No diversity of citizenship existed; no facts were plead to support plaintiff's Title VII claim; and insofar as a First Amendment "conspiracy to violate religious expression" claim was alleged, no state action was involved.