Afghanistan Releases Man Jailed For Converting To Christianity

AP reports that in Afghanistan earlier this week, Sayed Mussa, who had been held in jail for nine months on charges of converting to Christianity, was released. After a campaign on his behalf by Christian activists and international diplomats, prosecutors determined that they did not have enough evidence to charge Mussa. U.S. officials say that Mussa is now safely out of Afghanistan.

Warsaw Convention Pre-Empts Religious Discrimination Claim Against Foreign Airline

In Sewer v. LIAT (1974) Ltd., (D VI, Feb. 16, 2011), a Virgin Islands federal district court held that the Warsaw Convention pre-empts a claim brought by a Virgin Islands citizen against a foreign airline for alleged discriminatory exclusion of plaintiff from a flight originating in the British Virgin Islands.  Plaintiff, a black West Indian Rastafarian who wears dreadlocks alleged that Liat airlines discriminated against him on the basis of race, origin and beliefs. The court concluded that Liat's bumping of Sewer from his flight to Antigua was based on neutral selection criteria. It went on to hold that even if there was discrimination, the only remedy is under the Warsaw Convention, and that document gives no claim to plaintiff because there was no "accident" and no bodily injury alleged. Today's Antigua Observer reports on the decision.

Federal Court Says Utah's Reformation of FLDS Trust Violates Establishment Clause

In a surprising decision yesterday, a Utah federal district court held unconstitutional the five years of state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust. Utah courts have attempted to carry out the reforms using non-religious neutral principles of law.  The Trust holds title to property on which FLDS members live. The reformation proceedings grew out of a 2005 petition by the Utah and Arizona Attorneys General asking a Utah state court to remove or suspend the UEP trustees who failed to defend the trust against tort lawsuits.  (See prior posting.) In Fundamentalist Church of Jesus Christ of Latter Day Saints v. Wisan, (D UT, Feb. 24, 2011), the Utah federal district court held:

By reforming a religious trust and managing it without regard to religion, the state actors became impermissibly entangled with religion. While it is accurate to say the states' actions did not establish a religion, their actions certainly went a long way toward disestablishing one.... The primary effect of the state court's decision to rewrite the Trust and administer it as a secular instrument was to inhibit religion. The resulting intrusion into the everyday life of the FLDS church and its members fostered not only "excessive government entanglement with religion," but was a virtual takeover by the state.

Judge Dee Benson observed that attempting to separate the secular parts of the UEP Trust from the religious parts is like trying "to eliminate football from the Super Bowl."  While much of the attention given to the case has stemmed from the polygamous practices of the FLDS Church and its leaders, the court said:

While it is true the state court judge in reforming the Trust recognized that the FLDS church practiced polygamy, which is illegal, and that the Special Fiduciary would not in any manner be allowed to make Trust administration decisions on the basis of polygamist practices, the state judge nowhere based her decision to reform or administer the Trust on a finding that it was being used to commit or support criminal activity.

Deseret News reports on the decision.

Maryland Senate Approves Same-Sex Marriage Bill

The Maryland state Senate yesterday passed the Civil Marriage Protection Act (SB 116), by a vote of 25-21. The bill authorizes same-sex marriage in the state, and provides that clergy may not be required to solemnize marriages in violation of their free exercise of religion.  The bill also exempts religious organizations from provisions calling for non-discrimination in public accommodations and insurance when they refuse on religious grounds to provide facilities, services or benefits for same-sex marriages. The bill now goes to the House of Delegates where, according to yesterday's Washington Post, its prospects for passage are uncertain. Opposition to the bill has come particularly from the Maryland Catholic Conference and from members of the state's black churches.

Refusal To Delay Civil Trail For Plaintiff's Religious Observance Was Abuse of Discretion

In Neustadter v. Holy Cross Hospital of Silver Spring, Inc., (MD Ct. App., Feb. 24, 2011), Maryland's Court of Appeals-- the state's highest court-- held that a trial court abused its discretion when it refused to suspend a civil medical malpractice trial for two days when plaintiff and his attorney could not attend because of religious obligations imposed by the Jewish holiday of Shavuot.  During their absence, defendant  put on its entire case in chief. The majority opinion, without reaching constitutional free exercise claims, held that the trial court abused its discretion in denying plaintiff a reasonable accommodation of his religious beliefs to permit him to participate in his trial. While plaintiff had delayed informing the trial court of the scheduling conflict, the majority held that plaintiff was not so untimely as to indicate an utter lack of diligence.

A concurring opinion by Judge Harrell, joined by Judge Murphy, engaged in a lengthy analysis of the free exercise issues involved in the case-- rejecting plaintiff's free exercise claim-- while nevertheless saying that the majority was correct in not reaching the constitutional issues.  The concurrence concluded that:

the judge’s denial of Petitioner’s motions to postpone the trial was the judicial analog to a generally-applicable legislative act, in that there is no evidence in the record from which one could conclude that the judge’s ruling would have been any different if faced with nonreligious justifications for the requested postponement.... Petitioner was free to celebrate Shavuot as he deemed fit; the trial court did not compel his presence in court in violation of the Jewish faith. Accordingly ... I do not think a "substantial burden" was placed upon his Free Exercise rights.

The concurrence went on however to find an abuse of discretion because "the facts in evidence ... do not support the proffered rationales for denying Petitioner's motions to postpone the trial."

A second concurrence by Judge Adkins argues that the court should reach the constitutional issues presented and should conclude that because the trial court's action was neutral and of general applicability, no heightened scrutiny was called for.  She agreed, however, with the majority's analysis of the trial court's abuse of discretion. She added: "I would not address the intriguing issue Judge Harrell raises of whether the Free Exercise clause is 'applicable with equal force to the judicial branch.'" (See prior related posting.) The Baltimore Sun reports on the decision.

Iraqi Supreme Court Interprets Constitutional Provision Barring Laws From Violating Settled Rulings of Islam

An op-ed published on Jurist earlier this month discusses a little-noticed decision handed down last December by Iraq's Federal Supreme Court which for the first time interpreted the provision in Iraq's Constitution (Art. 2) prohibiting civil laws from violating "settled rulings" of Islam.  At issue was a provision in Iraq's Law of Evidence requiring contracts over a certain amount to be proved by showing a writing.  The lower court had refused to accept oral evidence of the existence of a construction contract. Appellant claimed that requiring a writing was inconsistent with sharia, and thus invalid. The Federal Supreme Court, instead of merely holding that there was no "settled ruling" against requiring written contracts, engaged in its own interpretation of the Qur'an, citing two verses which it said supported requiring a written document. Haider Ala Hamoudi, writer of the op-ed, suggests that while Islamic religious authorities were not exercised by the Court's interpretation of religious law here, it would be very different if the Federal Supreme Court challenged religious authorities on core matters such as women's divorce rights.

Canadian Street Preacher Convicted For Using Sound Amplification System

In the Canadian province of Alberta, the Calgary Court of Queen's Bench yesterday reversed a provincial court's dismissal of charges against street preacher Artur Pawlowski who violated city park rules by using a sound amplification system. (See prior posting.) According to the Calgary Herald, the court rejected the argument that the ban on amplification systems was vague and overly broad. Justice Robert Hall wrote:

I am . . . satisfied that the intention of the bylaw is not to restrict the use of such items as hearing aids, cellphones, iPods or transistor radios within a park, none of which affect the safety, accessibility and enjoyment of the parks by the general public. The only reasonable interpretation of this section, when viewed in harmony with the scheme and object of the bylaw, is that it is intended to prohibit noise amplified to such an extent as to interfere with the enjoyment of the park by other users.

The court apparently also rejected arguments that the ban violated Pawlowski's freedom of expression and religion protected by the Charter of Rights and Freedoms in imposing penalties on Pawlowski.

Defendant Pleads Guilty To Hate Crime Against Mosque Playground

A Department of Justice press release reports that yesterday in a Fort Worth, Texas federal district court, Henry Clay Glaspell pleaded guilty to a hate crime charge growing out of his setting fire to playground equipment at an Arlington, Texas mosque.  The arson was part of a series of ethnically motivated acts directed at persons associated with the mosque who were of Arab or Middle Eastern descent. Glaspell also admitted that he stole and damaged mosque property, threw used cat litter at the front door of the mosque, and shouted racial or ethnic slurs. Sentencing is set for July 11.

Tennessee Legislators Propose Elaborate Anti-Sharia Bills

The most elaborate example yet of an anti-Sharia bill was introduced last week in the Tennessee House and Senate.  The Tennessean reports that SB 1028 (full text), and the identical HB 1353, were filed on Thursday to meet the deadline for introducing bills for the current session of the legislature, and that they may yet be amended.  The bills outlaw providing material support to any organization that the state Attorney General designates as a "sharia organization." The bill declares that it is not directed at the peaceful practice of Islam.  Instead it is premised, among other things, on the bill's declaration that "Sharia requires all its adherents to actively and passively support the replacement of America’s constitutional republic, including the representative government of this state with a political system based upon sharia." The 20-page bills, introduced by State Sen. Bill Ketron, R-Murfreesboro, and state Rep. Judd Matheny, R-Tullahoma, were drafted by David Yerushalmi, an Arizona attorney who heads the Society of Americans for National Existence. Critics say the bills are based on a complete misunderstanding of sharia law.

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.