Suit Challenges Prayer At Vermont Town Meeting

The ACLU of Vermont reported yesterday that it has filed suit in state court on behalf of a resident of Franklin, Vermont challenging the town's practice of incorporating a Christian prayer as part of the annual town meeting at  which town officers are elected and other public business conducted. The complaint (full text) in Hackett v. Town of Franklin, (VT Super. Ct., filed 3/1/2011), alleges that the prayer violates Chap. I, Art. 3 of the Vermont Constitution that provides no person can be compelled to attend any religious worship contrary to dictates of conscience. The complaint also alleges that the invocation violates the state's public accommodations act by refusing to permit plaintiff to avail herself of the town meeting on equal terms with others because of her religious beliefs.  The ACLU's website includes audio recordings off the prayers at issue. WCAX yesterday reported on the lawsuit.

In Turkey, Minority Religious Groups Face Obstacles In Opening Places of Worship

Forum 18 reported yesterday on the continuing problems faced by minority religious communities in Turkey in establishing and maintaining formally recognized places of worship. The most significant problem is that of the large Alevi community who want their cemevi to be formally recognized by the state as houses of worship. (See prior related posting.) The ruling AKP party is working on a solution. Also the Caferi-- who are closer to Shia Islam-- want their own mosques and clergy.  Currently only the state-run Diyanet-- which is Sunni controlled-- can open mosques and administer them. Various Christian groups are also facing problems in opening or maintaining their places of worship. While these various groups can have informal places of worship, without recognition they do not get various tax exemptions. Also calling non-recognized buildings houses of worship can lead to prosecution.

Amendments Proposed To Kentucky Anti-Bullying Bill To Protect Anti-Gay Language

Last month, six members of Kentucky's House of Representatives introduced HB 370, a bill that would require school discipline codes to prohibit bullying and cyberbullying directed at a student's race; religion; national origin; ancestry or ethnicity; sexual orientation; physical, mental, emotional, or learning disability;  gender; gender identity and expression; or other distinguishing personal characteristic. (Legislative history.)  Last week, two legislators introduced amendments to the bill designed to protect religiously motivated anti-gay speech. One of the amendments would provide that school discipline codes may not "prohibit any student from expressing ... personal religious beliefs so long as that expression does not include physically harming a student or damaging a student's property". An alternative proposed amendment provides: "Nothing in this Act shall be construed to prohibit or deny the civil expression by any student of religiously based opinions on issues related to sexual orientation." WHAS reports that after being reported out of committee, the bill is now stalled in the House.

Plaintiffs Lack Standing To Challenge Procedure For Omitting Social Security Numbers In Drivers Licence Applications

In Baer-Stefanov v. White, 2011 U.S. Dist. LEXIS 19139 (ND IL, Feb. 25, 2011), an Illinois federal district court dismissed for lack of standing a challenge to provisions in Illinois' drivers license law that set up procedures for obtaining a religious exemption so an applicant can obtain a license without furnishing a social security number.  Plaintiffs' personal religious beliefs prevent them from using social security numbers because they consider the numbers the mark of the beast prohibited by Revelations 13. However plaintiffs were informed by an attorney in the Secretary of State's office that an exemption would be granted only if an applicant submitted a state form signed by a religious leader who attested that use of a social security number was barred by the beliefs of  his or her religious sect and that the applicant was a member of that sect. Plaintiffs never actually applied for a license because their religious sect leaves beliefs regarding social security numbers to the individual consciences of members. Instead plaintiffs sued alleging that the limitation on the availability of the exemption violated their free exercise and equal protection rights. The court held that because plaintiffs never applied for a religious exemption, and thus have not been denied one, their injury is only threatened, not actual. Had they applied, the Secretary of State might have exercised discretion to treat individual religious convictions the same as beliefs of an entire sect.

Westboro Responds To Its Supreme Court Win

ABC News reports on the less than gracious response of Margie Phelps, lead counsel for Westboro Baptist Church, to her win today in the Supreme court. (See prior posting.)  Phelps, daughter of the church's pastor, said of the protests that the Supreme Court found protected by the 1st Amendment:

We are trying to warn you to flee the wrath of God, flee the wrath of destruction. What would be more kind than that.... Shut up all that talk about infliction of emotional distress. When you're standing there with your young child's body bits and pieces in a coffin you've been dealt some emotional distress by the Lord your God.... I very much appreciate the fact that I get to be the mouth of God in this matter.

Church leaders say they now plan to quadruple the number of protests around the country that they carry out.

Pakistani Cabinet Member Assassinated Over His Opposition To Blasphemy Law

CNN reports that Shahbaz Bhatti, Pakistan's minister of minority affairs, was assassinated today.  The Taliban claimed responsibility for the fatal shooting of Bhatti, the only Christian member of Pakistan's cabinet.  A Taliban spokesman said that the assassination "is a message to all of those who are against Pakistan's blasphemy laws." Bhatti has been an outspoken critic of the use made of Pakstan's blasphemy ban, saying presciently: "I am ready to sacrifice my life for the principled stand I have taken because the people of Pakistan are being victimized under the pretense of blasphemy law." Dawn has more details on the shooting that took place while Bhatti was being driven to work in Islamabad.

Supreme Court Rules In Favor of Westboro Baptist Church Anti-Gay Funeral Picketers

The U.S. Supreme Court today ruled in an 8-1 decision that Westboro Baptist Church and its members are shielded by the First Amendment from tort liability for their picketing of the funeral of Marine Lance Corporal Matthew Snyder who was killed in Iraq.  Westboro pickets military funerals around the country, often carrying sings criticizing U.S. tolerance for homosexual conduct.  In Snyder v. Phelps, (Sup. Ct., March 2, 2011), the majority, in an opinion written by Chief Justice Roberts, overturned the jury's verdict that had found for Snyder's father on his claims for intentional infliction of emotional distress, intrusion upon seclusion and civil conspiracy. Here are some excerpts from the majority opinion:

The picket signs reflected the church’s view that the United States is overly tolerant of sin and that God kills American soldiers as punishment.... The “content” of Westboro’s signs plainly relates to broad issues of interest to society at large, rather than matters of “purely private concern.”... While these messages may fall short of refined social or political commentary, the issues they highlight—the political and moral conduct of the United States and its citizens, the fate of our Nation, homosexuality in the military, and scandals involving the Catholic clergy—are matters of public import....

The fact that Westboro spoke in connection with a funeral ... cannot by itself transform the nature of Westboro’s speech. Westboro’s signs, displayed on public land next to a public street, reflect the fact that the church finds much to condemn in modern society....

Westboro’s choice to convey its views in conjunction with Matthew Snyder’s funeral made the expression of those views particularly hurtful to many, especially to Matthew’s father. The record makes clear that the applicable legal term—“emotional distress”—fails to capture fully the anguish Westboro’s choice added to Mr. Snyder’s already incalculable grief. But Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to a public street. Such space occupies a “special position in terms of First Amendment protection.”...

The record confirms that any distress occasioned by Westboro’s picketing turned on the content and viewpoint of the message conveyed, rather than any interferencewith the funeral itself. A group of parishioners standingat the very spot where Westboro stood, holding signs that said “God Bless America” and “God Loves You,” would not have been subjected to liability. It was what Westboro said that exposed it to tort damages....

Snyder argues that even assuming Westboro’s speech is entitled to First Amendment protection generally, the church is not immunized from liability for intrusion upon seclusion because Snyder was a member of a captive audience at his son’s funeral.... Here, Westboro stayed well away from the memorial service. Snyder could see no more than the tops of the signs when driving to the funeral. And there is no indication that the picketing in any way interfered with the funeral service itself. We decline to expand the captive audience doctrine to the circumstances presented here.

While joining the majority opinion, Justice Breyer also filed a concurring opinion emphasizing his understanding that there might be some situations outrageous enough that a state could permit recovery for intentional infliction of emotional distress for a verbal assault, even when it was launched to call attention to views on a matter of public concern.

Justice Alito was the sole dissenter. In his opinion, he argued that while Westboro members have many means to express their views:

It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.

Justice Alito emphasized the publicity seeking nature of Westboro's picketing strategy and focused on Westboro's post-funeral Internet posting that went beyond comments on matters of public concern and also attacked the Snyders personally.

The New York Times reports on the decision.

White House Faith-Based Office Hosts Conversation On Support For Military Families and Veterans

The White House Office of Faith-Based and Neighborhood Partnerships yesterday described a meeting it hosted last week exploring ways in which congregations and faith- and community-based organizations can support military families and veterans.  Representatives of local and national groups joined representatives from the Defense and Veterans Affairs Departments and the First Lady's Office in a four hour conversation aimed at expanding available tools.

7th Circuit Upholds Injunction Permitting "Be Happy, Not Gay" Slogan on Student Clothing

In Zamecnik v. Indian Prairie School District #204, (7th Cir., March 1, 2011), the U.S. 7th Circuit Court of Appeals upheld a trial court's entry of a permanent injunction permitting any student at a Naperville, Illinois high school  to display on clothing or personal items the slogan "Be Happy, Not Gay."  It also affirmed the trial court's award of damages of $25. The school had attempted to ban students from wearing the slogan on T-shirts under a rule that barred derogatory comments that relate to race, ethnicity, religion, gender or sexual orientation or disability.  The 7th Circuit had previously ordered the district court to enter a somewhat narrower preliminary injunction. (See prior posting.) The school now argued that it should have been entitled to a hearing to show that it had a reasonable belief it faced a threat of substantial disruption before a permanent injunction was entered. The 7th Circuit disagreed. The court relied in part on the "heckler's veto" doctrine-- that speech cannot be suppressed merely because those who disagree with it engage in threats or violence. Alliance Defense Fund yesterday issued a release discussing the decision.

Archbishop Speaks On U.S. Church-State Principles As Model For Other Countries

Denver Catholic Archbishop Charles Chaput yesterday delivered an interesting keynote address (full text) at a Georgetown University conference on "Religion in American Politics: A Model for Other Countries?". Here are some excerpts from the talk which Chaput said emerged from his experience on the U.S. Commission on International Religious Freedom:

Principles that Americans find self-evident — the dignity of the human person, the sanctity of conscience, the separation of political and sacred authority, the distinction between secular and religious law, the idea of a civil society pre-existing and distinct from the state — are not widely shared elsewhere.... We need to ask ourselves why this is the case....

It's impossible to talk honestly about the American model of religious freedom without acknowledging that it is, to a significant degree, the product of Christian-influenced thought. Dropping this model on non-Christian cultures – as our country learned from bitter experience in Iraq – becomes a very dangerous exercise. One of the gravest mistakes of American policy in Iraq was to overestimate the appeal of Washington-style secularity, and to underestimate the power of religious faith in shaping culture and politics.....

What we see today is a repudiation of [the American] model by atheist regimes and secular ideologies, and also unfortunately by militant versions of some non-Christian religions. The global situation is made worse by the inaction of our own national leadership in promoting to the world one of America's greatest qualities: religious freedom.

This is regrettable because we urgently need an honest discussion on the relationship between Islam and the assumptions of the modern democratic state.... [W]e need to encourage an Islamic public theology that is both faithful to Muslim traditions and also open to liberal norms. Shari'a law is not a solution. Christians living under shari'a uniformly experience it as offensive, discriminatory and a grave violation of their human dignity.

A healthy distinction between the sacred and the secular, between religious law and civil law, is foundational to free societies. Christians, and especially Catholics, have learned the hard way that the marriage of Church and state rarely works. For one thing, religion usually ends up the loser, an ornament or house chaplain for Caesar. For another, all theocracies are utopian – and every utopia ends up persecuting or murdering the dissenters who can't or won't pay allegiance to its claims of universal bliss.

Yemini Islamist Leader Interjects Call For Islamic State Into Anti-Government Demonstrations

The New York Times today reports that a new element has been introduced into the anti-government protests in Yemen. Sheik Abdul Majid al-Zindani, head of the Islamist Al Islah party, spoke to several thousand anti-government protesters today calling for replacement of the present government with an Islamic state. It is unclear how much support among largely secularist demonstrators al-Zindani has.  Al-Zindani has been on the U.S. Treasury Department's list of "specially designated global terrorists" since 2004. The Christian Science Monitor says that al-Zindani has been a supporter of  President Saleh until yesterday when he renounced him.

Indian Court Sentences 11 To Death For 2002 Attack On Hindus

Last week, a  court in India's state of Gujarat found 31 Muslims guilty of murder and criminal conspiracy in the 2002 attack that set fire to a train carrying Hindu pilgrims. The attack killed 59 and set off counter anti-Muslim riots that killed up to 2000. (See prior posting.) Today, according to AFP, the court imposed death sentences on 11 of the defendants and life sentences on the 20 others. According to the special prosecutor in the case, the court found the death sentences justified, seeing the crimes as ones that come "under the category of the rarest of the rare."

Judge Should Have Given "Deific Command" Instruction In Murder Trial

In State of New Jersey v. Singleton, (NJ App., Feb. 28, 2011), the New Jersey Superior Court Appellate Division reversed the conviction of Boyce Singleton who had been found guilty of murdering his pregnant girlfriend, finding the trial judge's instructions on the insanity defense were incomplete.  The court remanded for a new trial at which the judge is to add an instruction on the insanity standard where defendant believes he was commanded by God to act. The court said:

[T]he record contained evidence from which the jury could have found that defendant believed he had received a deific command to murder Michelle. With only the model jury charge as a guide, the jury could have rejected the insanity defense -- even if it found persuasive the deific command evidence -- by finding defendant understood his actions were contrary to law. To avoid that possibility, a judge must provide ... the further explanation that insanity may be found -- even if defendant knew his actions were contrary to law -- if he proved by a preponderance of the evidence that he acted pursuant to a delusion of receiving a deific command. In other words, in such an instance, the judge must instruct that the defendant may not be held responsible for his actions "where a delusional command could be objectively recognized to confound the difference between lawful behavior and a moral imperative.

The Trentonian reports on the decision.

British Court Struggles With Conflict Between Christian Beliefs and Foster Care Rules On Sexual Orientation

In Britain yesterday, the Queen's Bench Division of the High Court of Justice refused to issue a declaratory order in a case pitting a Christian couple's beliefs regarding homosexuality against a proposed interpretation of government standards for approval of applicants who wish to serve as foster care givers.  R Johns v. Derby City Council, (EWHC, Feb. 28, 2011), involves questions  raised by a social worker who interviewed Eunice and Owens Johns as to whether they would be able to give appropriate support to a foster child who might be confused about his or her sexuality.  The government's National Minimum Standards for Fostering Services requires that young people be provided with foster care services that value diversity and promote equality. Derby City Council's Fostering Panel postponed a decision on whether to approve the Johns' application pending further consideration of the legal issues. Both parties agreed to seek a judicial ruling.  The court observed that the proceedings are "most unusual" because they seek a determination in the abstract. However the Court strongly rejected plaintiffs' contention that the case is about whether the government is relegating Christians to second class status.

Groups such as the Christian Legal Centre have issued statements strongly critical of language in the opinion such as the following statement that is part of the court's analysis:

If children, whether they are known to be homosexuals or not, are placed with carers who ... evince an antipathy, objection to or disapproval of, homosexuality and same-sex relationships, there may well be a conflict with the local authority's duty to "safeguard and promote" the "welfare" of looked-after children. There may also be a conflict with the National Minimum Standards for Fostering Services and the Statutory Guidance. Religion, belief and sexual orientation are protected characteristics under the Equality Act 2010.... While as between the protected rights concerning religion and sexual orientation there is no hierarchy of rights, there may ... be a tension between equality provisions concerning religious discrimination and those concerning sexual orientation. Where this is so, Standard 7 of the National Minimum Standards for Fostering and the Statutory Guidance indicate that it must be taken into account and in this limited sense the equality provisions concerning sexual orientation should take precedence.

Yesterday's London Telegraph reports on the decision, focusing on the court's statement that the judges serve a multi-cultural community of many faiths, "but the laws and usages of the realm do not include Christianity, in whatever form."

Review Denied In Pastor's Defamation Claim

Today the U.S. Supreme Court denied certiorari in Cooke v. Tubra, (Docket No. 10-559, cert. den. 2/28/2011). (Order List.)  In the case, an Oregon appellate court reversed a trial court's dismissal of a pastor's defamation claim against his former church and two of its officers.  The Virginia Court of Appeals held that statements made by a religious organization which do not concern its religious beliefs and practices or which are made for a nonreligious purpose are subject to a qualified privilege.  But they do not enjoy an absolute privilege as the trial judge had held. (See prior posting.)  For further background on the case, see the discussion last year at Volokh Conspiracy.

US Imposes Sanctions on 2 More Iranian Officials For Human Rights Violations

Last week, the U.S. Treasury and State Departments announced the designation of two additional Iranian officials as being responsible for or complicit in serious human rights abuses in Iran since June 2009.  The designation results in freezing assets of the officials, barring transactions with them by U.S. persons and the imposition of visa sanctions.  The two-- Abbas Jafari Dolatabadi, Tehran Prosecutor General, and Mohammed Reza Naqdi, commander of the IRGC’s Basij Forces-- join 8 others named in an executive order issued last September. (Background.)  One of the two added yesterday-- Mohammad Naqdi-- was identified by the U.S. Commission on International Religious Freedom in its annual report issued last year as being responsible for particularly severe violations of religious freedom.  In a release last week, USCIRF welcomed the action taken by State and Treasury.

Recent Articles of Interest

From SSRN:

• Tommaso Pavone, Redefining Religious Neutrality: Lautsi vs. Italy and the European Court of Human Rights, (February 16, 2011).
• Lance McMillian, Atticus Finch - Christian?, (Tennessee Law Review, Vol. 77, No. 1, 2010).
• Richard Schragger, The Relative Irrelevance of the Establishment Clause, (Texas Law Review, Vol. 89, p. 583, 2011).
• Mary Szto, Strengthening the Rule of Virtue and Finding Chinese Law in 'Other' Places: Gods, Kin, Guilds, and Gifts, (February 21, 2011).
• Ryan Keith Bach, The Lord Giveth: Christian 'Health Insurance', the Role of State Insurance Regulation, and the Aftermath of Kentucky v. Reinhold, (February 22, 2011).
• Gregory Engle, An Unholy Union? The Use of Religion in the Courtroom, (December 3, 2010).
• Brooke N. Walker, Unequal Application of RLUIPA's 'Equal Terms' Provision, (February 24, 2011).
• Robert Luther, Marketplace of Ideas 2.0: Excluding Viewpoints to Include Individuals, (Hastings Constitutional Law Quarterly, Vol. 38, p. 673, 2011).
• Julie A. Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, (Hastings Constitutional Law Quarterly, Vol. 38, p. 631, 2011).
• Danielle Keats Citron and Helen L. Norton, Intermediaries and Hate Speech: Fostering Digital Citizenship for Our Information Age, (Boston University Law Review, Vol. 91, 2011).

From SmartCILP:

• Journal of Law and Religion, Vol 26, No. 1, 2010- 2011 has recently been issued. (Table of contents). Full text available online for Dohrman W. Byers, The Morality of Human Rights, A Secular Ground and Jeffrey M. Lipshaw, Can There Be a Religion of Reasons? A Response to Leiter's Circular Conception of Religious Belief.

From Bepress:

• Muslim World Journal of Human Rights, Vol. 7, Issue 2 (Jan. 2011) has been published online. (Full text of articles).

Recent Prisoner Free Exercise Cases

In Crump v. Unknown Patrick, 2011 U.S. Dist. LEXIS 16807 (WD MI, Feb. 18, 2011), a Michigan federal district court dismissed a Muslim inmate's free exercise, RLUIPA and equal protection claims. Plaintiff claimed that on two occasions he was mistakenly given pork meals and on a third occasion a food worker's neglect in changing gloves cross contaminated his food with pork. Among other things, plaintiff alleged that his prayers to Allah were not answered for 40 days because of his eating the pork products.

In Smith v. Sisto, 2011 U.S. Dist. LEXIS 17133 (ED CA, Feb. 15, 2010), a California federal magistrate judge recommended rejecting an inmate's claim that his rights under the Free Exercise and Establishment clauses were infringed when he was denied parole in part for failure to attend faith-based Alcoholics Anonymous or Narcotics Anonymous programs. The court found that the parole board, while mentioning the programs, did not indicate plaintiff was required to attend, and plaintiff never told the board that the programs conflicted with his religious beliefs.

In Koenig v. Maryland Division of Corrections, 2011 U.S. Dist. LEXIS 16992 (D MD, Feb. 22, 2011), a Maryland federal district court rejected a Mormon inmate's complaint that Mormons were not granted a full 90 minutes of religious services each week and that he was not permitted to retain more than four religious items.

In Newman v. Brandon, 2011 U.S. Dist. LEXIS 16976 (ED CA, Feb. 14, 2011), a California federal magistrate judge rejected plaintiff's claim that his free exercise and RLUIPA rights were violated when prison authorities spilled coffee on his Bible.

In Sanders v. Swarthout, 2011 U.S. Dist. LEXIS 17646 (ED CA, Feb. 22, 2011), a California federal magistrate judge recommended denying an inmate's habeas corpus application, finding that while the parole board discussed petitioner's participation in AA, it did not indicate he was required to participate in any faith-based substance abuse program to be eligible for parole. Also petitioner never told the parole board that his religious beliefs conflicted with participation in AA.

In Gordon v. County of Rockland, 2011 U.S. Dist. LEXIS 17305 (SD NY, Feb. 18, 2011), an inmate claimed that a jail chaplain distributed to the inmate population copies of two pamphlets defamatory to the Muslim faith. A New York federal district court dismissed the claim against the chaplain in her official capacity but allowed plaintiffs to proceed in their personal capacity free exercise claims and their claims of lack of administrative remedies in the jail.

Gingrich's 2012 Campaign Places More Emphasis On Religious Faith

Today's New York Times reports that as former House speaker Newt Gingrich gears up for a run for the 2012 Republican nomination for President, in his public appearances he is placing a new emphasis on religious faith.  The Times says that on the campaign trail, Gingrich will:

have to grapple with aspects of his life and career that could give pause to elements of the Republican primary electorate, including a lack of a well-established association with religious conservatives and attendant questions about his two divorces. So as he travels the country, he is striking two related notes: that the nation faces not just a fiscal crisis but also a loss of its moral foundation, and that his conversion to Catholicism two years ago is part of an evolution that has given him a deeper appreciation for the role of faith in public life.

ACLU Says High School Students Should Be Allowed To Post 10 Commandments On Their Lockers

According to WSLS-TV News, the ACLU of Virginia is supporting the right of Floyd County, Virginia high school students to post their personal views-- including copies of the Ten Commandments-- on their own school locker doors. Apparently Floyd County High School administrators removed copies of the Ten Commandments from lockers of members of the Fellowship of Christian Athletes under a school policy that requires school approval for postings on lockers other than messages such as "happy birthday" or "go team." The ACLU's e-mail to the school principal on Friday (quoted in full in the WSLS-TV report) points out that "allowing students to express their religious views on their lockers is not the same as the school itself posting the Ten Commandments or other religious documents." The ACLU says that the 1st Amendment bars the school from treating students' religious speech less favorably than other forms of speech.