Required Disclaimer By Pro-Life Pregnancy Centers Violates Free Speech Protections

In Archbishop Edwin F. O'Brien v. Mayor and City Council of Baltimore, (D MD, Jan. 28, 2011), a Maryland federal district court struck down as a violation of free expression a Baltimore ordinance requiring various disclosures by limited-service pregnancy centers.  Under the ordinance, any facility providing pregnancy-related services, but which does not provide or refer for abortions or certain kinds of birth control, must post a sign in its waiting room notifying patients of that fact. Finding that the ordinance regulates protected non-commercial speech and is based at least in part on disagreement with the viewpoint of the speaker, the court held that a strict scrutiny standard applies in reviewing the ordinance. It concluded that the requirement to post a disclaimer is not the least restrictive means of combating the city's concern over false or misleading advertising by pregnancy centers. The suit was brought by the Greater Baltimore Center for Pregnancy Concerns that operates in rent-free space provided by the Catholic archdiocese. AP via First Amendment Center reports on the decision.

In Britain, Parliament May Retaliate If Church Refuses To Ordain Women Bishops

In England, legislative changes to permit the ordination of women as bishops in the Church of England is slowly proceeding.  In July, the Church's General Synod approved the proposal and referred it to diocesan synods. If a majority of them approve the measure, it returns to the General Synod where it will require a two-thirds majority in each house (laity and clergy and bishops) to pass. This should occur in about 18 months. Then the measure must be approved by the British Parliament. (Background.) However the London Telegraph yesterday reported that opponents of the change think their chances of defeating the measure when it comes back to the General Synod are increasing.  To counter this possibility, a cross-party group of members of Parliament today will call on Parliament to remove the Church of England's exemption from British equality laws if the measure to ordain women bishops is not approved by the Church. (See prior related posting.)

Muslim Brotherhood Not Pressing Its Religious Agenda In Current Egyptian Crisis; Others Call for Liberalization

Ya Libnan reported yesterday that Egypt's Muslim Brotherhood is subordinating its religious goals to the effort to achieve democratic elections in the country. In that effort, they are backing Mohamed ElBaradei as the lead spokesman for negotiating political reforms on behalf of the various opposition groups.  Middle East analysts disagree over whether the Brotherhood should be seen as an extremist group, or as one having a more moderate theological agenda.

Meanwhile, Asia News reports that last week some 20 intellectuals and theologian from Al Azhar published a a statement titled "Document for the Renewal of Religious Discourse" which calls for dramatic liberalization of Islamic doctrine in Egypt. (Full text is included in the Asia News article.)

Recent Articles and Books of Interest

From SSRN:

• Mike Madden, Second Among Equals? Understanding the Short Shrift that Freedom of Religion is Receiving in Canadian Jurisprudence, (Journal of Law and Equality, Vol. 7, No. 1, pp. 55-86, 2011).
• Lucia Ann Silecchia, Reflections on the Link between Faith and Intellect, (CUA Columbus School of Law Legal Studies Research Paper No. 2011-2, Jan. 18, 2011).
• Faisal Kutty, The Myth and Reality of 'Shari'a' Courts in Canada: A Delayed Opportunity for the Indigenization of Islamic Legal Rulings, (University of St. Thomas Law Journal, Vol. 7, 2010).
• Brian Leiter, The Law of Religious Liberty in a Tolerant Society, (January 25, 2011).
• Mark Rienzi, The Constitutional Right to Refuse: Roe, Casey, and the Fourteenth Amendment Rights of Healthcare Providers, (January 27, 2011).
• Gregory Brazeal, Webs of Faith as a Source of Reasonable Disagreement, (January 1, 2011).
• Michael C. Dorf, Same-Sex Marriage, Second-Class Citizenship, and Law’s Social Meanings, Cornell Legal Studies Research Paper No. 11-03, Jan. 28, 2011).
• Wilson Ray Huhn, A Higher Law: Abraham Lincoln's Use of Biblical Imagery, (U of Akron Legal Studies Research Paper No. 11-1, Jan. 24, 2011).

Recent Books:

• Ekmeleddin Ihsanoglu, The Islamic World in the New Century: The Organisation of Islamic Conference, 1969-2009, (Columbia Univ. Press, Nov. 2010), reviewed in Today's Zaman.
• S. Sayyid and AbdoolKarim Vakil (eds.), Thinking Through Islamophobia: Global Perspectives, (Columbia Univ. Press, Feb. 2011).
• John M. Owen IV and J. Judd Owen (eds.), Religion, the Enlightenment, and the New Global Order, (Columbia Univ. Press, Feb. 2011).
• American Foreign Policy Council, The World Almanac of Islamism 2010, (Rowman & Littlefield, Jan. 2011).

Religious Marriage Ceremony Alone Does Not Create "De Facto" Marriage In Kentucky

In Pinkhasov v. Petocz, (KY Ct. App., Jan. 28, 2011), the Kentucky Court of Appeals held that a marriage solemnized religiously without the parties obtaining a civil marriage license is not legally valid and will not, in light of the state's refusal to recognized common law marriages, be recognized as a "de facto" marriage.  The parties, neither of whom were U.S. citizens, were married in Kentucky in a Jewish religious ceremony after Anna Petocz became pregnant. However both parties insisted that no marriage license be obtained or filed "based upon immigration concerns and a need to remain legally free to marry American citizens for the purpose of applying for citizenship."  While the parties held themselves out as husband and wife to their Jewish congregation and community, Petocz scrupulously avoided doing so on documents such as tax returns, passport application, apartment application and mental health records. Two years later, Petocz filed an action to dissolve the marriage. Daniel Pinkhasov moved to dismiss and urged the court to rule only on the issues of custody and child support.  The Court of Appeals decision supports Pinkhasov's position.

Recent Prisoner Free Exercise Cases

In Diaz-Morales v. Wells, 2011 U.S. Dist. LEXIS 6208 (SD GA, Jan. 20, 2011), a Muslim inmate filed a habeas petition challenging loss of good conduct time imposed because he participated in a group boycott of religious meals. A Georgia federal magistrate judge recommended dismissal of plaintiff's free exercise, equal protection and related claims because they cannot be raised by way of habeas corpus, for failure to exhaust administrative remedies and because of lack of support on the merits for his equal protection claim.

In Hallford v. California Department of Corrections, 2011 U.S. Dist. LEXIS 5984 (ED CA, Jan. 20, 2011), a California federal magistrate judge recommended dismissing an action by a Buddhist inmate complaining of a two-year delay in being approved to receive a religiously required vegetarian diet. The court found that none of the three defendants was sufficiently involved in the claimed deprivation to be liable.

In McDaniels v. Sherman, 2011 U.S. Dist. LEXIS 6365 (WD WA, Jan. 21, 2011), a Washington federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140316, Sept. 28, 2010) and dismissed a number of claims by Nation of Islam inmates regarding participation in Ramadan meals and forcing plaintiffs to participate in "orthodox" Muslim services. All but one claim was dismissed for failure to exhaust administrative remedies. The claim regarding denial of attendance at the 2009 Eid was dismissed on the merits.

In Kynwulf v. Sheets, 2011 U.S. Dist. LEXIS 6861 (SD OH, Jan. 25, 2011), an Ohio federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 140403, Dec. 9, 2010) and dismissed claims by a prisoner of the Asatru faith that he was kept in administrative detention for 3 weeks and berated about his faith in retaliation for his participation in lawsuits seeking accommodation of Asatru practices.

In Mubashshir v. Moore, 2011 U.S. Dist. LEXIS 6917 (ND OH, Jan. 25, 2011), an Ohio federal district court dismissed a Muslim inmate's complaint that prison officials failed to provide him regular nutritious meals consistent with his religious beliefs.

In Allah v. Virginia, 2011 U.S. Dist. LEXIS 6979 (D VA, Jan. 24, 2011), a Virginia federal district court rejected the state's claim that plaintiff failed to exhaust his administrative remedies before suing to obtain prison recognition of Nations of Gods and Earth as a religious group.

In Ross v. Hedgepeth, 2011 U.S. Dist. LEXIS 7454 (ED CA, Jan. 26, 2011), a California federal magistrate judge permitted a Muslim inmate to proceed with his 1st Amendment and RLUIPA claims against the warden complaining about prison policy that required prayer oil to be tested before it was distributed to inmates. His equal protection and Establishment Clause claims were dismissed without prejudice.

In Klein v. Department of Corrections, 2011 U.S. Dist. LEXIS 7457 (ED WA, Jan. 20, 2011), a Washington federal district court dismissed as moot an inmate's complaint seeking a temporary restraining order to prevent him from being required to participate in the Right Living program, which plaintiff claimed was religious-based. On Dec. 31 the program was eliminated for budgetary reasons.

India's Supreme Court Upholds Haj Subsidies Against Constitutional Attack

In Goradia v. Union of India, (India Sup. Ct., Jan. 28, 2011), India's Supreme Court rejected a constitutional challenge to India's Haj Committee Act of 2002 under which the government provides air fare subsidies for Haj pilgrims.   The suit was brought by Praful Goradia, a former member of Parliament from the Hindu Bharatiya Janata Party. He argued that the subsidy violates Article 27 of the India's Constitution that provides: "No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in the payment of expanses for the promotion and maintenance of any particular religion or religious denomination."  The Court held that the constitutional provision is violated only where a substantial part of a tax is utilized for a particular religion. It wrote: "In our opinion, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the constitution." The Court also rejected claims that the Act violated the equal protection and anti-discrimination provisions of Articles 14 and 15 of the Constitution, pointing out that India's central government and state governments also spend money on other religions. In reaching its conclusions, the court quoted precedent from the United States Supreme Court, as well as from Australia, all suggesting that constitutional provisions should not be read too literally. Sify News reports on the decision.

British Appellate Court Says EU Employment Discrimination Directives Do Not Cover Volunteers

In an important ruling in X v. Mid Sussex Citizens Advice Bureau, (EWCA, Jan. 26, 2011), the England and Wales Court of Appeal held that volunteers are not covered by the EU directives requiring equal treatment in employment and occupation.  In a release supporting the result, the Christian Institute (which had intervened in the case) said that the decision protects churches that use volunteers from being "forced to navigate a minefield of equality laws that threaten religious liberty."

Hawaii Senators Move To Voluntary Pre-Session Prayer

Last week, the Hawaii state Senate, after receiving a complaint from the ACLU voted to end the practice of opening Senate sessions with a prayer. (AP 1/21). However, on Wednesday a group of nine Senators held hands, bowed their heads and prayed on the Senate chamber floor before the day's legislative session formally convened. According to the AP, Senate president Shan Tsutsui supported the right of the senators to do this, saying it is a matter of free speech.

US Calls For Afghanistan To Release Two Facing Possible Death Penalty For Apostasy

The Wall Street Journal yesterday reported that the U.S. government, along with some international Christian organizations, is calling on the government of Afghanistan to release two men who have been arrested on apostasy charges and could face the death penalty. Said Musa, a physical therapist, converted from Islam to Christianity nine years ago. He has worked for 15 years for the International Committee of the Red Cross. Shoaib Assadullah Musawi was arrested in November in northern Afghanistan after giving a copy of the New Testament to a friend who reported him.  A spokesperson for the U.S. Embassy in Kabul says that the U.S. has called on Afghanistan to respect the Universal Declaration of Human Rights and continues frequently to call for release of the men. However the chief of staff of Afghanistan's Justice Ministry says that there are no exceptions to the death penalty for apostasy and that the sentence is needed to serve as a lesson for others.

Bill Would Create Special Envoy for Religious Minorities in Near East and South Central Asia

Rep. Frank Wolf (R-VA) announced this week that he, along with 7 co-sponsors, has introduced H.R. 440, a bipartisan bill to provide for the establishment of the Special State Department Envoy to Promote Religious Freedom of Religious Minorities in the Near East and South Central Asia. In introducing the bill, Wolf emphasized recent attacks on and arrests of Christians in countries such as Afghanistan, Pakistan, Iraq and Egypt. He also pointed out that other religious minorities in the region-- such as the Ahmadis, Baha’is, Zoroastrians and Jews-- are under pressure as well. He added:

In the wake of these devastating attacks on religious freedom, which in some cases are so severe that they literally threaten to wipe these ancient indigenous communities from the lands they've inhabited for centuries, it is clear that more must be done. Sadly, against the backdrop of these attacks, the post of Ambassador-at-Large for International Religious Freedom at the State Department has been vacant for two years.

Suit Charges Religious Discrimination In Closing of Facebook Account

Wednesday's New York Daily News reports on a lawsuit filed in a New York state trial court by a Staten Island man accusing Facebook, among other things, of religious discrimination in closing down his account. Mustafa Fteja, an Albanian Muslim who has lived in the U.S. for 17 years, says that his Facebook account was disabled without explanation and that he received only automated responses from Facebook when he inquired about the situation. The suit asks for $500,000 in damages and restoration of Fteja's personal privileges on Facebook.

Federal Court Suit Challenges School's Teaching of Evolution

Earlier this month, a former Pennsylvania high school teacher filed an action pro se challenging the teacing of evolution by the Blue Mountain, Pennsylvania school district.  The complaint (full text) in Ritter v. Blue Mt. School District, (MD PA, filed 1/18/2011), alleges teaching that the only explanation for life is evolution (without the possibility of a Creator) amounts to the promoting of Atheism, which in turn amounts to teaching of a religion.  Plaintiff objects to paying taxes to support the school district and asks the court to find that "the Blue Mt. School District is an illegal body so long as it teaches Atheism, and thus is not entitled to pursue any further actions." Plaintiff also filed a "Brief" in support of his complaint and a copy of his school district  tax bill along with a document arguing that evolution is unscientific.  In a press release yesterday announcing the filing of the case, plaintiff added that the court in which the suit has been filed is the "same district that rendered the infamous Kitzmiller decision in 2005."

Magistrate Rejects Preliminary Injunction Request for Jehovah's Witness Congregation Zoning

In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, Jan. 24, 2011), a New Hampshire federal magistrate judge recommended denying a preliminary injunction to a Jehovah's Witness congregation that unsuccessfully sought a zoning exception to build a Kingdom Hall in an area zoned residential. The court rejected plaintiff's free exercise claim, finding that plaintiff "was unable to identify anything religiously significant" about the property on which it sought to build. Today's Nashua Telegraph reports on the decision.

Courts Decide Claims For Return of Contributions To Religious Groups

Court decisions on two continents have recently struggled with attempts to recover transfers made by individuals to religious organizations. In Canada, a Windsor, Ontario Superior Court judge overturned a small claims court decision in a dispute over whether $35,000 transfered to the Society of the Madonna di Canneto was a loan or a contribution.  Yesterday's Windsor Star reports that the small claims court held that $30,000 of the $35,000 transfered by Luigi Tosti and three others to the organization which built a $1.5 million shrine to the Virgin Mary was a donation. The small claims trial was so contentious that the judge had to shout over the feuding parties in order to be heard.

Meanwhile, in Britain, today's London Express and the Daily Mail report that the Cardiff Civil Court of Justice ruled that former RAF officer Richard Curtis was unduly influenced by the Self Realization Meditation Healing Centre when he, along with his wife, transfered their home to the religious group. The Centre-- described by some as a cult-- is led by 79-year old Rena Denton. The group has since spent substantial amounts renovating the house for use as an alternative centre. The court nevertheless ordered the property returned to the donors. Curtis will sell it and split the proceeds with his estranged wife who is still a member of the Healing Centre.

Mother's Religious Beliefs Lead To Award of Health Care Decision Making to Father

In Winters v. Brown, (FL App., Jan. 26, 2011), a Florida appellate court upheld applying the "best interest of the child" test to affirm a trial court's award of control over health care decisions for his minor child to the child's father. Matthew Brown, the father, who was never married to Shannon Winters, the mother, petitioned for establishment of paternity and control over health care, religious and educational issues when Winters obtained a exemption from the public school immunization requirements for the child. Winters objects on religious grounds to introducing anything into the body to prevent disease or treat illness. [Thanks to Volokh Conspiracy for the lead.]

New Argentine Law Allows Muslim Women To Wear Hijab In Public

Press TV reports that Argentina has adopted a new law allowing Muslim women to wear a hijab (head scarf) in public. It also allows them to wear a hijab for their national identity card photo. Muslims make up 2% of Argentina's population.

Romania Now Taxes Income of Witches

Religion Dispatches yesterday reported on Romania's 16% income tax that beginning January 1 began to apply to the 4,000 witches in the country.  Witches in Romania-- known as vrajitoaries-- combine Christian and pre-Christian elements in their rituals. A group of witches who are unhappy about the new tax conducted a ritual to curse the government.

Amended Opinion Issued, En Banc Review Denied, In World Vision Case

Yesterday, a panel of the 9th Circuit issued an amended opinion and denied an en banc rehearing in Spencer v. World Vision, Inc., (9th Cir., Jan. 25, 2011). At issue is whether the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act (42 USC 2000e-1) for "a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." In August 2010, the same panel issued three separate opinions defining the criteria for falling within the exemption. (See prior posting.) The amended opinion includes a per curiam opinion of two of the judges explicitly agreeing on the narrower of their two opinions as criteria for invoking the exemption:

Judges O’Scannlain and Kleinfeld concur that an entity is eligible for the section 2000e-1 exemption, at least, if it is organized for a religious purpose, is engaged primarily in carrying out that religious purpose, holds itself out to the public as an entity for carrying out that religious purpose, and does not engage primarily or substantially in the exchange of goods or services for money beyond nominal amounts.

[Thanks to Steven H. Sholk for the lead.] 

State of the Union Speech Includes Two References To U.S. Religious Diversity

President Obama's State of the Union address last night (full text) contained two references to religious affiliation of Americans.  The first was in connection with U.S. efforts to prevent al-Qaeda attacks:

And as extremists try to inspire acts of violence within our borders, we are responding with the strength of our communities, with respect for the rule of law, and with the conviction that American Muslims are a part of our American family.

The second reference was in the President's remarks on the recent repeal of "Don't Ask, Don't Tell":

Our troops come from every corner of this country – they are black, white, Latino, Asian and Native American. They are Christian and Hindu, Jewish and Muslim. And, yes, we know that some of them are gay. Starting this year, no American will be forbidden from serving the country they love because of who they love. And with that change, I call on all of our college campuses to open their doors to our military recruiters and the ROTC....