Title VII Claim By Seventh Day Adventist Against Police Department Rejected

In Morgan v. City and County of Denver, 2011 U.S. Dist. LEXIS 11918 (D CO, Feb. 7, 2011), a Colorado federal district court approved a magistrate's recommendations (2010 U.S. Dist. LEXIS 141090, Dec. 29, 2010) and dismissed a Title VII religious discrimination claim brought by a Seventh Day Adventist against the Denver Police Department Records Bureau. Plaintiff was terminated for refusing to work on Saturdays. The court concluded that plaintiff's employer had offered him reasonable accommodation-- trading shifts with a co-worker and voting for Saturdays off based on his seniority. He was also offered the opportunity to look for a comparable position in another agency that would not require Saturday work.  Plaintiff sought a permanent exemption from Saturday work. The court also rejected plaintiff's retaliation claim.

Suit Against Air Force Academy Prayer Luncheon Is Dismissed

Making oral findings of fact and conclusions of law, a Colorado federal district court yesterday dismissed a suit that sought to enjoin a National Prayer Luncheon at the U.S. Air Force Academy scheduled for Feb. 10. The suit claimed that the luncheon violates the Establishment Clause.  (See prior posting.)  The court, according to AP, concluded that the named plaintiffs, associate professor of economics David Mullin and the Military Religious Freedom Foundation, had not demonstrated that they faced a real and imminent prospect of retribution. A written order in, Mullin v. Gould, (D CO, Feb. 9, 2011) incorporated the oral findings by reference. After the decision was handed down, chaplain Dwayne Peoples told reporters that he would emphasize at the Luncheon that the sponsor is Community Center Chapel, not the Academy.

1st Circuit: Puerto Rico's Controlled Access Law As Applied Unreasonably Burdens Jehovah's Witnesses

In Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (1st Cir., Feb. 7, 2011), the U.S. 1st Circuit Court of Appeals dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. (See prior posting.)  The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood.  The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. The Court of Appeals said:

Nothing in the statute endorses the principal inhibitions of which appellants complain. The statute says nothing of unmanned locked gates or buzzers controlled solely by residents, nor does it empower guards to deny access unless a resident approves....  [T]he regime as administered does bear unreasonably on Jehovah's Witnesses' access to public streets....

 [T]he case before us is novel and difficult. But Puerto Rico's crime problems are unusually serious and its legislature's solution, albeit an experiment, was democratically adopted and is far from irrational. A court's task is to assure breathing room for legitimate communicative activity. Although we reject the facial challenge to the statute, the precedents on access to public places require fine tuning of the statute's local administration and, for that, further proceedings are required.

On remand the district court needs to take prompt action to bring the municipalities and urbanizations into compliance with this decision. In the case of urbanizations that already provide regularly manned guard gates, they must provide entry to Jehovah's Witnesses who disclose their purpose and identity .... 

Where an urbanization currently provides access only through a locked gate or a buzzer operated solely by residents, adjustment may take longer. Those prepared to provide guards during daylight hours need a brief period to hire and to train them. And any urbanization that seeks to justify more limited access arrangements ... or an exemption because of small size needs a chance to propose and defend such a request.

[Thanks to Alliance Alert for the lead.]

Israeli Civil Court Grants Damages To Wife Whose Husband Refused To Grant Her A Religious Divorce

The Jerusalem Post reported last week that, for the first time, an appellate court in Israel has ruled that a Jewish woman who has been refused a religious divorce (get) by her husband may recover damages in civil court. The decision by the Tel Aviv district court was handed down in a case brought by a woman whose husband has refused for 16 years to give her a religious divorce document.  The woman married the man when she was 24 years old and sought a divorce three months after their marriage. The district court affirmed a family court's award of damages totaling NIS 700,000 ($191,500 US).  Unless appealed to the Supreme Court, the district court's decision is binding on all family courts in Israel.

Court Dismisses Establishment Clause Challenge To Grant for Bald Knob Cross

In Sherman v. State of Illinois, (CD IL, Feb. 8, 2011), an Illinois federal district court adopted a magistrate's report and recommendations (see prior posting) and dismissed a suit by activist Robert Sherman that challenged on Establishment Clause grounds a $20,000 state renovation grant for Bald Knob Cross. The 11-story tall Cross is a landmark in southern Illinois. The magistrate had concluded that plaintiff lacks standing under the Flast case because the renovation grant was not the result of a specific legislative appropriation. Instead it was a grant made by the executive branch. The court also agreed with the magistrate that plaintiff's claim became moot once the state had disbursed the grant money. Yesterday the Chicago Tribune reported on the court's action.

Obama Resubmits Nomination for International Religious Freedom Ambassador

Last June, President Obama nominated Dr. Suzan D. Johnson Cook as Ambassador-at-Large for International Religious Freedom (See prior posting.) The Senate Foreign Relations Committee held hearings on her nomination (see prior posting), but the full Senate never voted on it.  On Monday the White House announced that President Obama has resubmitted her nomination to the Senate now that the 112th Congress has begun its session. As reported by the Christian Post yesterday, religious freedom activists have been pressing Obama to quickly fill the position, saying that not doing so sends the wrong message to foreign governments.

India's Relations With Tibetan Lama Have Become Tense

Today's New York Times carries a front-page article on the government of India's complicated  relations with Ogyen Trinley Dorje, the third ranking lama of Tibetan Buddhism. Known as the 17th Karmapa, Ogyen Trinley Dorje arrived in India in 2000 at the age of 14, recounting a daring escape from Tibet. Indian intelligence sources and many members of the public have been suspicious of him however, fearing he is being used by China with whom Indian relations have become more tense. Currently confined to a mountain side Gyuoto monastery near Dharamsala, the 17th Karmapa is attempting to claim the Rumtek Monastery built by his predecessor near the Indian border in Sikkim.  However two rivals for the title of the 17th Karmapa are also claiming the site. Given the uncertainty of his legal claims, Ogyen Trinley Dorje is also attempting to purchase other land for a new monastery. However now Indian police are investigating after nearly $1 million in foreign currency, including $166,000 in Chinese currency, was found at the Karmapa's residence. His lawyers say the money represents offerings from followers who have made pilgrimages over the years. They say it is being stored in a dormitory room shared by monks because the Karmapa is awaiting action on an application filed with the government several years ago to permit him to accept foreign currency. For the past week, thousands of monks have been holding candlelight vigils to support the Karmapa.

ACLU Settles With Some of the Parties In Suit Challenging Minnesota Charter School

The ACLU of Minnesota has reached a settlement agreement with Islamic Relief USA and Minnesota's commissioner of education in a long-running lawsuit accusing a charter school, TiZA, of violating the establishment clause by promoting Islam. (See prior posting.) The Minneapolis Star Tribune yesterday reported that the settlement involves Islamic Relief paying the ACLU $267,500, and the state increasing its screening of charter schools to assure that they do not promote religion. Islamic Relief has also agreed that it will not reincorporate in Minnesota, a step that would be needed under new Minnesota provisions if it were to continue to serve as TiZA's authorizer.  Islamic Relief has also obtained the cooperation of two witnesses who will testify if the suit continues against TiZA (Tarek Ibn Ziyad Academy) itself. The parties to the settlement have compiled a list of undisputed facts in the case, and the ACLU is asking the court to unseal underlying documents supporting those facts. A motion for confirmation of the settlement agreements was filed in federal district court on Jan. 31 indicating that settlement with the state is conditioned on the agreement and its attachments being made public.

TV and Web Coverage Approved for Closing Arguments In BC Polygamy Law Challenge

In Canada, for 8 weeks the British Columbia Supreme Court has been hearing testimony in a case challenging the constitutionality of the province's ban on polygamy. The Vancouver Sun reported yesterday that now a judge has approved the use of television cameras and Webcams to cover the two weeks of closing arguments in the case that are scheduled to start on March 28. (See prior related posting.)

Israeli Police Issue Arrest Warrant For Rabbi Who Supported Book Justifying Killing of Non-Jews

Haaretz reports today that an arrest warrant has been issued by Israeli authorities against Rabbi Dov Lior, head rabbi of Kiryat Arba, after Lior endorsed an inflammatory book written in late 2009 in which the authors argued that Jewish law justifies killing of non-Jews. (Background.)  The book, Torat Hamelech, written by two West Bank rabbis, Yitzhak Shapira and Yosef Elitzur, sparked a criminal investigation.  Lior says he will not appear for police questioning, accusing police of attempting to silence rabbis. Lior and Rabbi Yaakov Yosef, who also supported the book, issued a letter arguing that the Torah is not subject to police investigations. Two thousand demonstrators showed up to support Lior today.

RLUIPA Challenge To Zoning Denial For Christian Drug Treatment Center Is Filed

In Vestal, New York, a lawsuit was filed by Candlehouse Teen Challenge over the town's refusal to make zoning changes that would permit creation of a Christian-based rehabilitation center for recovering female drug addicts. The Binghamton (NY) Press Connects reported yesterday that the suit filed in state court alleges violations of the Religious Land Use and Institutionalized Person Act, as well as violations of the Fair Housing Act and the Americans With Disabilities Act. It seeks $300,000 in damages and a change in the Vestal zoning code which currently prohibits 5 or more people who do not operate as a traditional family from living together in areas zoned R-1.

Indonesian Mob Burns 2 Christian Churches Protesting Light Blasphemy Sentence

In the Indonesian town of Temanggung in Central Java yesterday, a Muslim mob set two churches on fire in protest of what they saw as too light a sentence being imposed on a Christian man for blasphemy.  AFP reports that violence broke out after a court sentenced Antonius Bawengan to five years in prison for distributing leaflets insulting to Islam.  Some 1500 protesters who threw stones at police shouted that Bawengan should be sentenced to death or turned over to the public.  This violence comes two days after a mob killed three members of the Ahmadiyah sect in a move to prevent them from holding worship services. (See prior posting.) Pressure is growing for the Indonesian government to take action against religious extremism.

Canadian Court Refuses To Permit Religious Use of Marijuana

In Canada today, an Ontario trial court judge rejected a constitutional challenge by two members of the Church of the Universe to Canada's marijuana laws.  The Toronto Star reports that two church members who had been charged with trafficking in marijuana and hashish claimed that cannabis is sacred to their religion and that Canada's Controlled Substances Law infringes their freedom of religion as protected by the Charter of Rights and Freedoms. Responding to arguments made by Rev. Brother Peter Styrsky and Rev. Brother Shahrooz Kharaghani, the court rejected carving out an exception for religious use of marijuana. The court wrote in part: "It is difficult, if not impossible for an outsider to identify the religious user and religious use because religious use is barely distinguishable from recreational use."

Indonesian Mob Kills At Least 3 Ahmadiyas In Bid To Stop Their Worship

In Indonesia yesterday, a thousand Muslims surrounded a house in West Java, attempting to prevent the Ahmadiya movement from holding worship services.  According to AFP, police say that three members of the Ahmadiya were killed and four seriously injured.  The state-run Antara news agency said that six people were killed. A government decree issued in 2008 bans the Ahmadiya from proselytizing. (See prior posting.) Orthodox Muslims believe that Muhammad was the final prophet, while Ahmadiya believes that its founder, Mirza Ghulam Ahmad, was the final Muslim prophet. This opens Ahmadiyas to charges of heresy and blasphemy which are punishable by five years in prison in Indonesia, despite the constitution's protection of freedom of religion.

Recent Articles of Interest

From SSRN:

US Law and Policy:

• Richard E. Redding, Without a Prayer?: Spirituality and Performance in Law School – A Reply to Professor Taylor, (California Western Law Review, Vol. 47, 2011).
• Micah Schwartzman, Conscience, Speech, and Money, (Virginia Law Review, April 2011).
• Jeffrey R. Baker, Trifling Violence: The U.S. Supreme Court, Domestic Violence and the Golden Rule, (February 4, 2011).
• Zachary R. Calo, Review of Church, State and Original Intent by Donald Drakeman, (Journal of the American Academy of Religion, Vol. 78, p. 827, 2010).
• Ali Khan, A Portfolio Theory of Foreign Affairs: U.S. Relations with the Muslim World, (Transnational Law and Contemporary Problems, Vol. 19, No. 3, 2011).

Non-US Law and Policy:

• Olubayo Oluduro, The Role of Religious Leaders in Curbing the Spread of HIV/AIDS in Nigeria, (Potchefstroom Electronic Law Journal, Vol. 13, No. 3, 2010).
• Sylvie Bacquet, Religious Freedom in a Secular Society: An Analysis of the French Approach to Manifestation of Beliefs in the Public Sphere, (January 17, 2011).
• Zachary R. Calo, Pluralism, Secularism and the European Court of Human Rights, (Journal of Law and Religion, Vol. 26, p. 101, 2010).

Religion and Human Rights:

• Werner Menski, Fuzzy Law and the Boundaries of Secularism, (Potchefstroom Electronic Law Journal, Vol. 13, No. 3, 2010).
• Steven Lubet, The Oberlin Fugitive Slave Rescue: A Victory for the Higher Law, (North and South, Vol. 13, 2011).
• Zachary R. Calo, Religion, Human Rights and Post-Secular Legal Theory, (St. John's Law Review, Forthcoming).
• Zachary R. Calo, Human Rights and Healthy Secularity, (Journal of Catholic Social Thought, Vol. 7, No. 2, 2010).
• Zachary R. Calo, Empirical Desert and the Moral Economy of Punishment, (Arizona State Law Journal, Forthcoming).

Religion and Economics:

• Lael Daniel Weinberger, The Business Judgment Rule and Sphere Sovereignty, (Thomas M. Cooley Law Review, Vol. 27, No. 2, 2010).
• Michael J.T. McMillen, Trends in Islamic Project and Infrastructure Finance in the Middle East: Re-Emergence of the Murabaha, (February 1, 2011).

From SmartCILP:

• Keith S. Blair, Better Disabled than Devout? Why Title VII Has Failed to Provide Adequate Accommodations Against Workplace Religious Discrimination, 63 Arkansas Law Review 515-556 (2010).
• Nina J. Crimm, Might Houses of Worship Enable Currently Uninsured, Economically Disadvantaged Individuals to Obtain Affordable Health Care Insurance? [Abstract], 25 Journal of Civil Rights and Economic Development 69-79 (2010).
• Daniel Dalton, The Religious Land Use and Institutionalized Persons Act--Recent Developments, 42 Urban Lawyer 561-580 (2010).
• Pamela Harris, Pleasant Grove v. Summum and the Establishment Clause: Giving with One Hand, Taking with the Other? [Abstract], 46 Willamette Law Review 677-690 (2010).
• David R. Loy, A Different "Enlightened" Jurisprudence?, 54 St. Louis University Law Journal 1239-1256 (2010).
  

Adventists Protest Scheduled Saturday Elections In Nigeria

Nigeria's presidential election is scheduled for Saturday, April 9.  However, according to today's Nigerian Compass, the Seventh Day Adventist Church is threatening to sue if the date is not moved to a week day since the Saturday timing will disenfranchise its members. The Church has said that some 12 million Nigerians will not be able to vote if the Saturday date is retained.

Top French Constitutional Court Rejects Challenge To Ban on Same-Sex Marriage

In Mme Corinne C. et autre, (Conseil Const., Jan. 28, 2011) [in French], France's Constitutional Council held that provisions in French law barring same-sex marriage violate neither Constitutional equal protection principles,  nor the protected right to lead a normal family life. C-Fam summarized the ruling as follows:

The Council ruled last Friday that because of the difference of situations between same-sex and heterosexual couples, the difference in treatment in family laws is justified and not in violation of the principle of equality. As for the right to a normal family life, the court found that the pacte civil de solidarité, a form of civil union that accords a plethora of legal, fiscal, and official benefits, is sufficient for a "normal family life."

C-Fam also reported that France's Socialist Party plans to call for a vote in Parliament on same-sex marriage this summer and that activists may appeal this decision to the European Court of Human Rights. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases

In Ofeldt v. McDaniel, 2011 U.S. Dist. LEXIS 8661 (D NV, Jan. 19, 2011), a Nevada federal district court rejected an inmate's claim that his 1st Amendment and RLUIPA rights because the prison chapel has no Asatru materials and he is not allowed to order materials from outside.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 8875 (ED CA, Jan. 21, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's suit seeking to add his religious name to his commitment name.

In Cain v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 9393 (WD MI, Feb. 1, 2011), a Michigan federal district court approved recommendations of a magistrate judge that were filed almost three years earlier (2008 U.S. Dist. LEXIS 119146, March 31, 2008), in a lengthy opinion rejecting complaints of an inmate who was a member of the Shetaut Neterian (ancient African) religion about inadequacies in meals served to him in various Michigan prisons in light of his religious dietary needs.  In adopting the magistrate's recommendations, the court modified the report "to incorporate circuit court holdings regarding suits under the RLUIPA contained in opinions published after the report was issued."

In Cryer v. Massachusetts Department of Corrections, 2011 U.S. Dist. LEXIS 1632 (D MA, Jan. 7, 2011), a Massachusetts federal district court reconsidered an order issued in November 2010 and permitted a Native American inmate to proceed with his 1st Amendment and RLUIPA claims to the extent they are limited to seeking use of tobacco during the once-monthly smudging ceremony. The magistrate's report in the case is at Cryer v. Clarke, 2010 U.S. Dist. LEXIS 140843 (Aug. 26, 2010).

In Guzman v. Marshall, 2011 U.S. Dist. LEXIS 9214 (CD CA, Jan. 31, 2011), in a decision dealing primarily with other claims, a California federal district court held that in a habeas corpus proceeding by an inmate challenging his denial of parole, it could not consider plaintiff's Establishment Clause claim that he was required to participate in a religious based AA class because the court is limited to considering procedural complaints about the parole process.

In Love v. New Jersey Department of Corrections, 2011 U.S. Dist. LEXIS 10102 (D NJ, Jan. 31, 2011), a New Jersey federal district court dismissed most of the equal protection and free exercise claims brought by plaintiff, who had filed numerous previous lawsuits. Plaintiff complained about a long series of practices while he was in segregated confinement and after he was released into the general prison population, relating to access to Jewish worship services, Passover observance and access to his tallit and to tefillin. The court dismissed all but three narrow claims presented by plaintiff.

In Halloum v. Ryan, 2011 U.S. Dist. LEXIS 10490 (D AZ, Jan. 27, 2011), an Arizona federal district court permitted a Muslim inmate to proceed with claims that he was denied a religious shaving waiver; defendant refused to distribute a copy of the Qur'an to him; authorities failed to accommodate his fasting during Ramadan, prohibited Muslim inmates from holding communal prayer and failed to provide Muslim inmates sufficient food because of their religious practices.

Pope Speaks Out On Church-State Relations In Europe

On Thursday, Pope Benedict XVI spoke of church-state relations in Europe in receiving the new Austrian Ambassador to the Vatican. Here are some excerpts from the Pope's remarks (full text):

In many European countries, the relationship between the state and religion is facing a particular tension. On one hand, the political authorities take care not to grant public places to religions, understanding them as merely individual ideas of faith of the citizens. Sought, on the other hand, is the application of criteria of a secular public opinion to religious communities. It seems that they would like to adapt the Gospel to the culture and yet, they seek to impede, in an almost shameful way, that the culture be molded by the religious dimension.

Obama Names New Members of Faith Based Advisory Council

Yesterday President Obama announced his intent to appoint twelve individuals to President’s Advisory Council on Faith-Based and Neighborhood Partnerships. Apparently this groups replaces 15 members whose one-year terms are expiring. (See prior posting.) The new chair of the Advisory Council is Susan K. Stern, Special Advisor on Government Affairs to the American Jewish Joint Distribution Committee. Other members and their affiliations are: Leith Anderson (National Association of Evangelicals); Andrea Bazán (Triangle Community Foundation); Angela Glover (Policy Link); Brian Gallagher (United Way International); Bishop Mark Hanson (Evangelical Lutheran Church in America); Lynne Hybels (Advocate for Global Engagement at the Willow Creek Community Church); Most Rev. Dr. Katharine Jefferts Schori (Presiding Bishop of the Episcopal Church); Rabbi Julie Schonfeld (Rabbinical Assembly); Archbishop Demetrios Trakatellis (Greek Orthodox Church of America); Sister Marlene Weisenbeck (Franciscan Sisters of Perpetual Adoration); and Reverend Elder Nancy L. Wilson (Moderator for the Universal Fellowship of Metropolitan Community Churches).