Group Challenges Religious Display In County Official's Office

Up North Live reports that a letter from the Freedom from Religion Foundation to the Cheboygan County, Michigan Drain Commissioner raises questions about the propriety of religious displays in the private offices of government officials.  FFRF objects to a cross and a nativity scene in Commissioner Dennis Lennox's office.  Lennox objects saying: "This is my private office in my private area, I'm not trying to force my faith down anybody's throat, I'm just saying I celebrate Christmas."

FBI Sued For Planting Informant In California Mosques

ACLU of Southern California announced yesterday that a class action lawsuit has been filed against the FBI for planting an informant in Orange County, California mosques.  Informant Craig Montielh gathered information for 14 months in 2006 and 2007, posing as a convert to Islam. He was told to focus on those who were more devout in their religious practices. The lawsuit alleges that targeting Muslim Americans amounts to religious discrimination and asks for the FBI to turn over or destroy all information gathered through the investigation.  The suit also seeks damages for emotional distress for three named plaintiffs.In addition to the ACLU, the Greater Los Angeles Council for American-Islamic Relations and a private law firm were involved in filing the suit. (See prior related posting.)

Obama Administration Says DOMA Is Unconstitutional and Will Not Defend It In Court

The Department of Justice announced yesterday that the Obama administration has concluded that Sec. 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional and will no longer defend it in court. That section defines marriage for purposes of federal law as "only a legal union between one man and one woman as husband and wife."  The Justice Department's legal rationale was spelled out more fully in a letter to Congress (full text) which, under 28 USC Sec. 530D , the Attorney General is required to submit whenever the Justice Department decides to refrain from defending the constitutionality of any provision of federal law.

The DOJ decision, which was approved by the President, comes in two suits against the United States filed in district courts in New York and Connecticut.  In prior district court cases, the Justice Department had defended DOMA under rational basis review that had been established as the controlling standard by the Circuit Court in the district in which the case was brought.  The Second Circuit, however, has no binding precedent on the level of review that should be applied in sexual orientation cases, so the Justice Department for the first time was faced with the necessity of taking an affirmative position on whether heightened scrutiny should apply.

In his lengthy letter to Congress, Attorney General Eric Holder wrote in part:

The Supreme Court has yet to rule on the appropriate level of scrutiny for classifications based on sexual orientation. It has, however, rendered a number of decisions that set forth the criteria that should inform this and any other judgment as to whether heightened scrutiny applies: (1) whether the group in question has suffered a history of discrimination; (2) whether individuals “exhibit obvious, immutable, or distinguishing characteristics that define them as a discrete group”; (3) whether the group is a minority or is politically powerless; and (4) whether the characteristics distinguishing the group have little relation to legitimate policy objectives or to an individual’s “ability to perform or contribute to society.” ... Each of these factors counsels in favor of being suspicious of classifications based on sexual orientation....

To be sure, there is substantial circuit court authority applying rational basis review to sexual-orientation classifications.... [But] none engages in an examination of all the factors that the Supreme Court has identified as relevant to a decision about the appropriate level of scrutiny.... [ Neither Lawrence v. Texas nor Roemer v. Evans] reached, let alone resolved, the level of scrutiny issue because in both the [Supreme] Court concluded that the laws could not even survive the more deferential rational basis standard.

Despite this determination, the Executive Branch will continue to enforce DOMA until Congress repeals it or a court definitively declares it unconstitutional.  The United States will also remain as a party in the pending cases and will notify the courts of the government's interest in providing Congress an opportunity to participate in the litigation.

Vatican Tribunal Consultant Says Gov. Cuomo Should Be Denied Communion

CNS News Monday reported comments by Dr. Edward Peters, a consultant to the Apostolic Signatura, the Catholic Church's highest judicial tribunal, criticizing Albany, New York Bishop Howard Hubbard for giving communion at Mass to New York Governor Andrew Cuomo. Today's New York Times also reports on the comments by Peters, who is a professor at Sacred Heart Major Seminary in Detroit. Focusing on the fact that Cuomo lives with girl friend Sandra Lee (a Food Network hostess), Peters said:

The governor, with complete freedom, is publicly acting in violation of a fundamental moral expectation of the Church. On these facts alone, his taking holy Communion is objectively sacrilegious and produces grave scandal within the faith community. As long as he persists in such conduct, he should refrain from taking holy Communion in accord with Canon 916. If he approaches for holy Communion, he should be denied the august sacrament in accord with Canon 915.

In January, Cuomo attended Mass at Albany's Cathedral of the Immaculate Conception with his three daughters from his first marriage and with Sandra Lee. Lt. Gov. Robert Duffy and his wife also attended. Bishop Hubbard delivered a homily in which he assured Cuomo and Duffy of his prayers and support in the challenges they face. Peters described the homily as "a failure in pastoral care" for not challenging the governor to reform his person.  Peters also indicated that Cuomo's public position supporting abortion also appears to justify withholding communion from him.

Naval Academy Grad Succeeds In Obtaining Conscientious Objector Status

Yesterday, Michael Izbicki became one of the few graduates of the U.S. Naval Academy to ever successfully obtain conscientious objector status. Today's New York Times chronicles Izbicki's two-year legal battle, including a federal lawsuit filed on his behalf by the ACLU last November. (See prior posting.) The Navy rejected Izbicki's application twice, questioning whether his beliefs were sincere. The Times describes the transcripts of the hearings on those applications as "read[ing] partly like a court-martial, partly like oral exams for a doctor of divinity degree..."  But now the Navy has decided that there is enough evidence to grant Izbicki CO designation.  The Ensign's realization that he was a CO began with a question on a Navy psychological exam asking him if he would launch a missile carrying a nuclear warhead if ordered to do so.

DC District Court Upholds Health Care Reform-- No Commerce Clause or Free Exercise Problems

Another federal district court has weighed in on the constitutionality of the Patient Protection and Affordable Care Act-- the 2010 law reforming the U.S. health care insurance system.  In Mead v. Holder, (D DC, Feb. 22, 2011), the district court for the District of Columbia rejected a challenge brought by individuals who object to the mandate to purchase health insurance imposed by the new law-- including objecting on religious grounds.  The court concluded that the law is a proper exercise of Congress' commerce clause powers.  However it refused to also uphold it under Congress' taxing and spending authority. Finally the court rejected plaintiffs' arguments that the new law violates their free exercise rights as protected by the Religious Freedom Restoration Act. Plaintiffs argued that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health.  The court said:

[T]he conflict alleged between § 1501's requirements and Plaintiffs' Christian faith does not rise to the level of a substantial burden....  [I]t is unclear how § 1501 puts substantial pressure on Plaintiffs to modify their behavior and to violate their beliefs, as it permits them to pay a shared responsibility payment in lieu of actually obtaining health insurance.... Even if § 1501 does substantially burden the exercise of Plaintiffs' Christian faith, Plaintiffs have failed to state a claim for relief under RFRA because the individual mandate provision serves a compelling public interest and is the least restrictive means of furthering that interest.

AP and Blog of the Legal Times both report on the decision. The American Center for Law and Justice which filed the suit says it plans to appeal. (See prior related posting.)

Delaware High Court Upholds Child Victim's Act Window For Filing Suits

In Sheehan v. Oblates of St. Frances de Sales, (DE Sup. Ct., Feb. 22, 2011), the Delaware Supreme Court upheld the constitutionality of the state's 2007 Child Victim's Act that repealed the statute of limitations in child sex abuse cases and created a 2-year window for filing suits on which the prior statute of limitations had run. The court concluded that the statute does not violate either state or federal due process protections. Remanding the case for a new trial, the court also held that the CVA revives intentional tort claims and found that the trial judge abused his discretion in excluding testimony of one of plaintiff's expert witnesses on causation. The suit involves allegations of sexual abuse in 1962 by a priest teaching at a Catholic school attended by plaintiff. AP reports on the decision. (See prior related posting.)

Police Captain Balks At Attending Law Enforcement Appreciation Day At Mosque

KRMG News yesterday reported that the Tulsa (OK) police department has reassigned a police captain and begun an internal investigation after the captain refused to instruct his officers to attend an upcoming Law Enforcement Appreciation Day sponsored by a local mosque.  The event will feature food, meeting of local Muslim leadership and an opportunity to watch the afternoon prayer service.  Officers object to being required to attend a religious event. KRMG separately reports that Police Chief Chuck Jordan will attend the event.  Jordan says that community policing is part of the department's mission. He emphasized that members of the mosque deserve equal treatment and respect by the police.

UPDATE: New American (2/23) reports that Tulsa police captain Paul Fields, the officer who refused to instruct his officers to attend the event, now will file a lawsuit alleging interference with his 1st Amendment rights of association and religion. The police department says "the Police Department and the Islamic Society of Tulsa very deliberately arranged attendance so that officers need not participate in any religious discussion or observance that would create any discomfort or inconvenience for them."

Christian Proselytizing Group Sues Dearborn, Michigan Over Arrests At Arab Festival

Yesterday a Christian group that seeks to convince Muslims to convert to Christianity filed a lawsuit in federal district court against the city of Dearborn, Michigan, city police officers and executives of the Dearborn American Arab Chamber of Commerce.  The complaint (full text) in Acts 17 Apologetics v. City of Dearborn, (ED MI, filed 2/22/2011) alleges a dozen claims-- including claims under the 1st and 14th Amendments-- growing out of two incidents at last year's Dearborn Arab International Festival.  In both cases, police arrested Christians who were proselytizing Muslims at the Festival. The complaint asks for a declaratory judgment, an injunction and damages.  Thomas More Law Center issued a press release announcing the filing of the case.

Supreme Court Denies Review In 10 Commandments Case

Yesterday the U.S. Supreme Court denied certiorari in McCreary County v. ACLU of Kentucky, (Docket No. 10-566, cert. denied 2/22/2011) (Order List.) In the case-- which has been before the Supreme Court once in 2005 already-- a majority of a 6th Circuit panel (see prior posting) approved issuance of a permanent injunction against a display of the 10 Commandments with other historical documents that refer to God in two Kentucky county court houses.  The panel refused to find that the counties had changed their original religious purpose for the displays. The 6th Circuit denied en banc review. (See prior posting.) Christian Science Monitor reports on the Courts denial of review.

Indian Court Convicts 31 Muslims, Acquits 63, In 2002 Attack on Hindus

A court in India's state of Gujarat has found 31 Muslims guilty of murder and criminal conspiracy in the 2002 attack in which they torched an express train carrying Hindu activists who were heading to build a temple on a disputed site.  The attack killed 59 and set off counter-riots in Gujarat that killed over than 1000 Muslims.  Today's Washington Post reports that the court acquitted 63 others in the trial, including 70-year old Maulana Hussain Umarji who was charged as a key conspirator. The 15-month trial called some 253 witnesses.  The convicted defendants will be sentenced on Friday. BBC News outlines the history of previous investigations into the train attack.

Two States Propose New Limits On Religious Exemptions To Immunization Requirements

Natural News today reports on proposed legislation in Washington state and New Jersey that would place new limits on religious exemptions from mandatory vaccination requirements.Washington SB 5005 would require that applications for religious, philosophical or medical exemptions include a statement by a health care practitioner that the parent or guardian has been informed of the benefits and risks of immunization to the child.  New Jersey's ACR 157 is a resolution reviewing recently adopted state administrative rules on immunizations finding that they violate legislative intent.  The resolution calls for the Commissioner of Health and Senior Services to withdraw the regulations or amend them to require parents applying for a religious exemption to furnish a written statement explaining how the administration of the vaccine conflicts with the bona fide religious tenets or practices of the student or the parents or guardians. The Natural News article discusses potential 1st Amendment challenges to the proposed new restrictions on exemptions.

Felony Enhancement For Church Burglary Does Not Violate Establishment Clause

In Burke v. State of Indiana, (IN App., Feb. 21, 2011), the Indiana Court of Appeals upheld the constitutionality of a provision that enhances burglary to a Class B felony if the building involved was one that is used for religious worship.  The court rejected a federal Establishment Clause challenge, finding that the statute has secular purposes-- churches traditionally have less security measures, society finds such crimes more repulsive and these offenders take more time to rehabilitate. The court also found no excessive entanglement. Finally it rejected a state constitutional challenge, finding the law does not materially burden the right to be free from a preference for a particular religion or religion in general, protected by Art. I, Sec. 4 of the Indiana Constitution.

Tunisia Now Faces Question of Role of Islam In New Government

Today's New York Times reports that Tunisia, in the wake of its successful revolution, now faces questions of the role of Islam in politics. Many in the traditionally secular and socially liberal country fear that conservative forces will press for infusing Islam into government. On Saturday thousands marched in Tunis demanding separation of religion and government.  The country's main Muslim movement, Ennahdha, opposes imposition of Islamic law in the country. However, last week security forces had to be called out to protect Tunis' brothels from rock-throwing protesters who shouted "No to brothels in a Muslim country!"

Recent Articles of Interest

From SSRN:

• Anver M. Emon, The Quadrants of Shari'a: The Here and Hereafter as Constitutive of Islamic Law, (Roads to Paradise, Todd Lawson, Sebastian Geunther, eds., Brill Publications, 2011).
• Anver M. Emon, On Islam and Islamic Natural Law: A Response to the International Theological Commission's 'Look at Natural Law', (Searching for a Universial Ethic, John Berkman, William C. Mattison, eds., Eerdmans Publishing, 2011).
• C.G. Bateman, Nicaea and Sovereignty: Constantine's Council of Nicaea as an Important Crossroad in the Development of European State Sovereignty, (February 1, 2011).
• Juliet P. Stumpf, Designing Populations: Lessons in Power and Population Production from Nineteenth-Century Immigration Law, (Vanderbilt Law Review En Banc, Forthcoming).
• Mateusz Radomyski, Medical Oaths: When Religion and Ethics Collide, (Amsterdam Law Forum, Vol. 3, No. 1, 2011).
• Michael D. McGinnis, Religion Policy and the Faith-Based Initiative: Navigating the Shifting Boundaries between Church and State, (Forum on Public Policy, No. 4, December 2010).
• Jeffrey Shulman, Introduction to 'Who Owns the Soul of the Child?: Religious Parenting Rights and the Enfranchisement of the Child', (Georgetown Public Law Research Paper No. 11-20, Feb. 18, 2011).
• Sharmila Murthy, Iraq’s Constitutional Mandate to Justly Distribute Water: The Implications of Federalism, Islam, International Law and Human Rights, (George Washington International Law Review, Vol. 42, 2011).
• Daniel Avila, Marriage and Civil Rights: The Anatomy of a Social Institution from a Constitutional Perspective, (February 14, 2011).
• Anthony E. Varona, Taking Initiatives: Reconciling Race, Religion, Media and Democracy in the Quest for Marriage Equality, (Columbia Journal of Gender and Law, Vol. 19, No. 3, pp. 805-897, 2010).

From SmartCILP and elsewhere:

• Robert John Araujo, S.J., John Courtney Murray, S.J.: A Citizen of Two Cities, 42 Loyola University of Chicago Law Journal i-xvii (2010).
• Henry L. Chambers, Jr. and Isaac A. McBeth, Much Ado About Nothing Much: Protestant Episcopal Church in the Diocese of Virginia v. Truro Church, 45 University of  Richmond Law Review 141-167 (2010).
• Louis J. Sirico, Jr., Failed Constitutional Metaphors: The Wall of Separation and the Penumbra, 45 University of Richmond Law Review 459- 489 (2011).
• L. Ali Khan, The Qur'an and the Constitution, 85 Tulane Law Review 161-190 (2010).

Using Prison Chapel As Courtroom Violates Establishment Clause; But Harmless Error

Jones County, Texas has designated the Chapel at the French Robertson Unit of the Department of Criminal Justice as a branch courthouse. It is used for non-jury proceedings when French Roberson inmates are charged with offenses.  In Lilly v. State of Texas, (TX App., Feb. 17, 2011), an inmate who pleaded guilty to assaulting a public servant challenged on free exercise and Establishment Clause grounds the holding of his criminal proceedings in the Chapel which contains various religious depictions. The court concluded that use of the Chapel constituted an Establishment Clause violation, saying:

If it is appropriate to use a Christian chapel as a courtroom, it must also be permissible to use a synagogue, mosque, or temple for the same purpose. A reasonable observer watching a trial in any of these facilities would perceive that a message supporting that particular religion was being sent to those in attendance.

The court went on to conclude however that the Establishment Clause violation played no role in petitioner's decision to plead guilty, so there is no basis to reverse his conviction or sentence.

Rabbi Gets 4 Years For Extortion; Lower Than Max Based on "Good Works"

Friday's New York Daily News reports that a New York federal district court judge has sentenced 64-year old Rabbi Milton Balkany to 4 years in prison for extorting $4 million in contributions to two religious schools from a hedge fund.  Balkany sought the funds in exchange for telling a prisoner he was counselling not to report insider trading to authorities. (See prior posting.) Balkany faced a possible 9-year sentence, but Judge Denise Cote said that the lower sentence was "appropriate based on a lifetime of good works and generosity for those in need and people who are the forgotten of society, the most unfortunate among us."  However the judge said some prison time was called for given Balkany's lack of contrition and remorse.

Moderate Islamic Party Recognized In Egypt

Bikyamasr today reports that the first political party to be offically recognized since President Hosni Mubarak's resignation is al-Wasat al-Gadeed, a moderate Islamic party that broke off from the Muslim Brotherhood.  The party, founded in 1996, has a centrist platform and believes in translating principles of Islam into a liberal democratic system. In 2009, the party was denied a license.  A party spokesman says it will run candidates in the next parliamentary election.  The party embraces religious tolerance and has some Christian members.

Recent Prisoner Free Exercise Cases

In Knox v. Bland, (10th Cir., Feb. 14, 2011), the 10th Circuit rejected an inmate's claim that his constitutional rights were violated when a state court refused to grant his petition to change his name for religious reasons to Ali Ishmael Mandingo Warrior Chief. The 10th Circuit relied on the Rooker/ Feldman abstention doctrine and other jurisdictional limits.

In Scott v. Pierce, 2011 U.S. Dist. LEXIS 13943 (SD TX, Feb. 3, 2011), a Texas federal district court refused to dismiss 1st Amendment and RLUIPA claims by a Jehovah's Witness inmate complaining that he and his co-religionists were not permitted to meet on a number of Saturdays because no outside volunteer to lead their religious services was available.

In Burnight v. Sisto, 2011 U.S. Dist. LEXIS 13794 (ED CA, Feb. 10, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus petition.  Petitioner claimed the parole board denied him parole in part because he failed to attend a faith-based Alcoholics Anonymous program.  The court concluded that attendance was not required in order to be found suitable for parole.

HHS Narrows Health Care Workers' Conscience Protections

In late 2008, the Department of Health and Human Services adopted a broad set of regulations to protect health care providers who have moral or religious objections to performing various health care services. (See prior posting.) Lawsuits were quickly filed challenging the rule as, among other things, interfering with a woman's right to contraceptive and reproductive health care services. (See prior posting.) With the advent of a new administration in 2009, HHS proposed a repeal of these broad rules in favor of narrower protections focusing only on individuals who object to providing abortion services. (See prior posting.) On Thursday, HHS, after reviewing over 300,000 comments received on its proposals, adopted a final rule which, while not totally repealing the 2008 rule, eliminated much of it. (Full text of HHS release.) As explained by the Washington Post:

The decision guts one of President George W. Bush's most controversial legacies: a rule that was widely interpreted as shielding workers who refuse to participate in a range of medical services, such as providing birth control pills, caring for gay men with AIDS and performing in-vitro fertilization for lesbians or single women....

The new rule leaves intact only long-standing "conscience" protections for doctors and nurses who do not want to perform abortions or sterilizations. It also retains the process for allowing health workers whose rights are violated to file complaints....

The rule will retain a provision that empowers the HHS Office of Civil Rights to investigate any complaints by workers who believe their rights under existing federal law were being violated.....  That office also will launch "a new awareness initiative for our grantees . . . to ensure they understand the statutory conscience protections," according to an HHS statement.

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