Lawsuit Claims "Local Option" Use Violates Civil Rights Act

An organization calling itself the Ethereal Enigmatic Euphoric Movement Toward Civilized Hedonism filed a lawsuit in federal court in Idaho last week challenging Idaho's local option statute (Idaho Stat. Sec. 23-917) that allows residents of a city to vote to ban the sale of liquor by the drink.  The complaint (full text) alleges that Preston, Idaho, whose residents are mostly Mormon, have used the local option statute to force their religious objections to liquor on others.  The complaint also alleges that this deprives members of the EEEMTCH of freedom to practice their belief that consumption of liquor is a "moral obligation and sacred right."  The complaint alleges that the ban on sale of liquor by the drink in Preston violates the public accommodations provisions of the 1964 Civil Rights Act as well as similar provisions of Idaho law (Sec. 67-5909).  Invoking the legacy of the civil rights movement, the complaint alleges: "Like being told we have to drink at separate water fountains, if we want a mixed drink in a bar, we are forced to drive to any of the surrounding cities in the state." Courthouse News Service reports on the filing of the lawsuit.

Catholic Cardinal Criticizes UK Foreign Aid Plans As Anti-Christian

The head of the Roman Catholic Church in Scotland, Cardinal Keith O'Brien, critized Britain's plans to increase foreign aid to Pakistan. He said:

To increase aid to the Pakistan government when religious freedom is not upheld and those who speak up for religious freedom are gunned down is tantamount to an anti-Christian foreign policy... Pressure should now be put on the government of Pakistan, and the governments of the Arab world as well, to ensure that religious freedom is upheld.

However, according to AFP yesterday, the British government is defending its policy.  Junior foreign minister Alistair Burt said that the promotion of human rights, including religious freedom, is at the heaqrt of its foreign policy.

Justice Department Sues California Under RLUIPA On Behalf of Sikh Inmate

The U.S. Department of Justice announced yesterday that it has filed a RLUIPA lawsuit against the state of California and its prison system after concluding that the state's inmate grooming policy violates the rights of a Sikh prisoner. Sukhjinder S. Basra, an inmate at the California Men’s Colony in San Luis Obispo, has been punished by prison officials for wearing a beard as required by his religious beliefs. The Justice Department says that its filing also seeks to have it participate in a lawsuit already filed on behalf of the inmate.

Anti-Abortion Demonstrator Loses Damage Action Against Park Service Officers On Qualified Immunity Grounds

Michael Marcavage, director of Repent America, has lost in his attempt to recover damages from National Park Service officers who required him to end the 2007 anti-abortion rally he was conducting in front of the entrance to Philadelphia's Liberty Bell Center and told him he could demonstrate only in a nearby area that was designated a First Amendment area under Independence National Historical Park regulations.  Last June, in United States v. Marcavage, the 3rd Circuit vacated Marcavage's conviction for interfering with an agency function, finding that the sidewalk on which he was demonstrating was a traditional public forum.  Now, however, in Marcavage v. National Park Service, (ED PA, March 9, 2011), a Pennsylvania federal district court held that while a damage action under Bivens action may be brought against federal officials for 1st Amendment violations, the Park Service officers involved have qualified immunity. The court concluded that content-based, as opposed to viewpoint-based, restrictions are permissible in a non-public forum and:

it was not clearly established that the Sixth Street sidewalk was a public forum at the time of Marcavage's arrest. While the Court of Appeals ultimately decided that it was, the question was open at the time.... 

The court also rejected Marcavage's equal protection claim.

Jewish Prayers On Board Plane Lead To Security Scare

CNN reports that three Orthodox Jewish businessmen praying on an Alaska Airlines flight from Mexico City to Los Angeles on Sunday triggered a security alert. Passengers became alarmed when the three began praying out loud "in a language other than Spanish" shortly after takeoff.  Flight attendants said the men appeared to have something strapped under their clothing as well-- presumably tefellin which observant Jews wear during week day morning prayers. Flight attendants alerted the flight deck which in turn alerted security at LAX.  Airport police, the FBI and agents from Customs and Border Protection all met the men when the flight landed. After questioning and a search of their baggage the men-- all cooperative with authorities-- were cleared to go.

UPDATE: CNN (3/15) reports that Alaska Airlines has apologized for the handling of the incident. However the airline explained that the flight crew was alarmed in part because the men ignored instructions to stay seated with seat belts fastened during air turbulence, and instead retrieved "small black boxes fastened with what appeared to be black tape" from their luggage in the overhead bins.

Indian Court Says Trustees Cannot Exclude Zoroastrian Priests From Tower of Silence

In India last week, the Bombay High Court ruled that trustees of the Parsi Panchayet Funds and Properties do not have the authority to bar two duly ordained Zoroastrian priests from performing religious rites at the Malabar Hill Tower of Silence and two fire temples.  The Hindustan Times last week reported that the Parsi Panchayet banned priests Framroze Mirza and Khushroo Madon on the grounds that the priests were engaging in activities that contradicted basic Zoroastrian tenets. A two judge bench of the High Court says that nothing in the Deed of Trust of the Parsi Panchayet gives the trustees this power, and if it did, it would "result in a grave affront to basic human rights and individual dignity." The court said the trustees mistakenly believe "they are custodians of the religion." The decision overruled one by a single judge last year who held that the High Court did not have the jurisdiction to determine what was and was not religious.

School's Prayer Service To Encourage Performance On Standardized Tests Is Questioned

The Baltimore Sun this week reports on the church-state questions that have been raised by the attempts at Baltimore's Tench Tilghman Elementary/Middle School to raise the performance of students on statewide standardized tests.  In preparation for the Maryland School Assessments this year and last, the school has held a 30-minute prayer service to culminate special Saturday test preparation classes.  Parents asked principal Jael Yon to hold the classes and prayer service as the best way to encourage and instill confidence in the students. Asked about the prayer service, city school officials said that "while we as a district understand that prayer plays an important role for many in our school communities … it is not appropriate for public institutions of education to promote any particular religious practice."

Court Explores Catholic Doctrines For End of Life Decisions

Matter of Zornow, (NY Sup. Ct., Dec. 23, 2010, posted March 2, 2011), involves a dispute between siblings over whether their mother, an Alzheimers patient in a nursing home, should be denied artificially administered food and water when the statutory conditions for doing so would permit such a decision to be made.  New York Public Health Law Sec. 2994-d.4.(a) provides that a court-appointed surrogate shall made decisions "in accordance with the patient's wishes, including the patient's religious and moral beliefs."  Finding that the mother was a practicing Catholic, the trial court engaged in a lengthy analysis of Catholic doctrine on foregoing food and water. In the course of the lengthy decision, Judge Polito was highly critical of provisions in the New York statute that sets out standards that may be used by surrogates in making health care decisions. He urged the legislature to create a "sanctity of life" rather than a "quality of life" presumption. [Thanks to Volokh Conspiracy for the lead.]

India Shia Personal Law Board Takes Action Against Domestic Abuse, Polygamy

According to India Today, the All India Shia Personal Law Board is taking action to counter the growing problem of domestic violence. It will ostracize men who beat their wives and will create a help line for victims.  The Board also expressed concern with polygamy, saying that the dowry that goes to the man's family is the main cause of the practice.  It decided that from now on, the dowry must be in the form of cash in an amount decided well before the wedding, and that the bride's family must  be free to spend the amount on the cost of the wedding ceremony.

Recent Articles Of Interest

From SSRN:

• Shoaib A. Ghias, Translation of Murawwaja Islāmī Baynkārī awr Jamhūr ʿUlamā kay Mawqaf kā Khulāṣa (A Collective Fatwa Against Islamic Banking) , (March 4, 2011).
• Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, (New York University Law Review, Forthcoming).
• Julia Leininger, The Diverse Role of Muslim Actors in Mali’s Democratic Consolidation: Fostering Plurality and Inhibiting Strong State Institutions, (February 4, 2010).
• George P. Smith, Regulating Morality through the Common Law and Exclusionary Zoning, (Catholic University Law Review, Vol. 60, No. 2, pp. 403-444, 2011).
• Michael J.T. McMillen, Islamic Capital Markets: Market Developments and Conceptual Evolution in the First Thirteen Years, (March 8, 2011).
• Julie Ringelheim, Emmanuelle Bribosia and Isabelle Rorive, Reasonable Accommodation for Religious Minorities: A Promising Concept for European Antidiscrimination Law?, (Maastricht Journal of European and Comparative Law, Vol. 17, No. 2, 2010).
• Cyra Akila Choudhury, Collateral Damage: the Ghettoization of Muslims in the Race for the White House, (Race 2008: Critical Reflections on a Historical Campaign, Mendible, ed., 2010).
• Ihsan Yilmaz, The Varied Performance of Hizb Ut-Tahrir: Success in Britain and Uzbekistan and Stalemate in Egypt and Turkey, (Journal of Muslim Minority Affairs, Vol. 30, No. 4, December 2010).
• Giovanni Distefano and Pascal Mahon, Ban on Minarets from the Standpoint of Swiss Constitutional Law and Public International Law (Jus Cogens), (Journal of Sharia and Law, Vol. 45, pp. 69-84, January 2011).

From SmartCILP:

• Angela C. Carmella, Religion-Free Environments in Common Interest Communities, 38 Pepperdine Law Review 57-110 (2010).
• Derek John Illar, Cyber Fatwas and Classical Islamic Jurisprudence, [Abstract], 27 John Marshall Journal of Computer and Information Law 577-592 (2010).
• 2010 Editor's Symposium. Freedom of Conscience: Stranger in a Secular Land, 47 San Diego Law Review 899-1129 (2010). (Introduction by Larry Alexander and Steven D. Smith; articles by Kent Greenawalt, Adam J. Kolber, Brian Leiter, Andrew Koppelman, Christopher T. Wonnell, Michael J. Perry, Richard J. Arneson, Nomi Maya Stolzenberg, Michael J. White, Ronald Beiner and Maimon Schwarzschild).
• Journal of Islamic and Near Eastern Law, Vol. 9, No. 1 (2009-10) has recently appeared. 

Recent Prisoner Free Excercise Cases

In Miles v. Moore, 2011 U.S. Dist. LEXIS 21753 (ED VA, March 3, 2011), a Virginia federal district court dismissed a challenge to a prison rule that only allowed changes once each quarter in the list of prisoners who could attend religious services. This delayed plaintiff's restoration to the list after he had been dropped during a period of administrative segregation.

In Pierce v. Gonzales, 2011 U.S. Dist. LEXIS 21888 (ED CA, Feb. 17, 2011), a California federal magistrate judge dismissed as too vague an inmate's allegations that Muslim inmates were denied religious services for over a year. Plaintiff however was granted leave to file an amended complaint.

In Muhammad v. Wade, 2011 U.S. Dist. LEXIS 22234 (ED VA, March 2, 2011), a Virginia federal district court rejected a Muslim inmate's claims that his rights were violated when authorities impeded his attempts to set up for classes and prayer, and denied him an Eid-ul-Fitr feast.

In McGovern v. Smith, 2011 U.S. Dist. LEXIS 22528 (D MT, March 7, 2011), a Montana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. Lexis. 23088, Feb. 1, 2011) and dismissed an inmate's challenge that his ability to practice his Wiccan religion were burdened by denying him the use of real candles and confiscating his pendant. However the court refused to dismiss his challenge to the ban on casting spells.

In Pine v. Seally, 2011 U.S. Dist. LEXIS 23482 (ND NY, Feb. 4, 2011), a New York federal magistrate judge recommended dismissing plaintiffs' claims that that they were denied "'Elder 'Rastafarian' or Eman [sic] 'Muslim' services . . . special diets, the right to Ramadan," and that Jewish inmates were not allowed to celebrate Passover and were not given kosher diets."

Dalai Lama To Transfer His Political Power To Elected Official

AP reports that the Dalai Lama will give up his political role in the Tibetan government-in-exile and will turn that formal role over to an elected leader.  The Dalai Lama said he will propose amendments to the constitution of the government-in-exile at its session that begins this week in Dharmsala, India. An election for a new prime minister for the government-in-exile is also scheduled this month, and that person may be the one to take on the Dalai Lama's political duties.

New Review of Religious Tolerance At Air Force Academy To Be Undertaken

AP reported yesterday that a retired Air Force general will conduct a review of the religious climate at the U.S. Air Force Academy . The Academy has been at the center of charges of religious intolerance for the past seven years. General Patrick K. Gamble, now president of the University of Alaska, will assemble a team of five or six members to take an "independent, subjective look at the overall climate at USAFA relating to free exercise of religion." The review is designed to evaluate various initiatives undertaken since 2004 that were designed to improve religious tolerance. A lengthy report on issues of religious tolerance at the Academy was issued in 2005. (See prior posting.)

Maryland House Fails To Pass Same Sex Marriage Bill After Religious Opposition

Baptist Press reports that Maryland's House of Delegates yesterday voted to send the pending same-sex marriage bill back to committee after the leadership determined that they lacked the votes to pass it.  The Maryland Senate passed the bill last month (see prior posting), and it was expected that the House would also pass it.  However opposition from predominately black churches, as well as from the Maryland Catholic Conference, meant that the bill was unable to get enough Democratic support. Two members of the black caucus switched from being co-sponsors to opposing the bill. Del. Cheryl Glenn, a member of the black caucus said: "The black churches -- since I've been here -- have never asked us for anything, that I can recall. They are asking now, 'Don't use the word marriage.'" Leaders expect the House will take up the bill again next year.

Defendant's Absence From Trial For Religious Reasons Held To Be Voluntary Waiver

In Eubanks v. Lempke, 2011 U.S. Dist. LEXIS 23642 (SD NY, Feb. 22, 2011), a New York federal district court denied a habeas corpus petition filed by Isaac Eubanks, a Muslim, who was absent from his state court trial for religious reasons on the Friday when the jury returned with its verdict convicting him of robbery and possession of stolen property. The federal court held that the state court's determination that Eubanks had voluntarily waived his right to be present was not objectively unreasonable. He had attended pre-trial proceedings on other Fridays.  His counsel did not object at trial and the state has a "controlling public interest" in protecting the integrity of jury deliberations.

Chechnya Criticized For Imposing Islamic Dress Code on Women

Human Rights Watch yesterday released a report titled You Dress According to Their Rules: Enforcement of an Islamic Dress Code for Women in Chechnya (full text). Here is a summary from the text of the report:

This report describes violence and threats against women in Chechnya to intimidate them into adhering to a compulsory Islamic dress code. The documented attacks and incidents of harassment took place from June through September 2010, when the virtue campaign in the republic intensified. During that time, dozens of women were subjected to attacks by men, including law enforcement officials, in the center of Grozny, for not wearing a headscarf or for dressing in a manner which these men deemed insufficiently modest. While pressure on women seemed to become less aggressive after September the dress requirement remains a live issue and continues to be backed by high-level officials, including Ramzan Kadyrov.

Interfaith Leaders Criticize House Hearings On Radicalization of Muslims

Twenty-six religious leaders-- Christian, Jewish, Muslim and Sikh-- yesterday issued a statement (full text) criticizing U.S. Rep. Peter King's hearing on the radicalization of American Muslims. The statement reads in part:

We urge the members of our government as well as citizens of good will to refrain from passing judgment on religious or faith groups based on the actions of the few who pervert their spiritual traditions through acts of violence and hostile rhetoric. We believe that politicians, cultural figures and members of the media are never justified in exploiting religious differences in order to advance ideological or political aims. Our leaders in Congress and the Administration must stand up and speak out against these hearings – hearings that perpetuate misrepresentations and harm our country rather than lead it to greater awareness and a strengthened citizenry.

The interfaith coalition-- calling themselves "Shoulder to Shoulder"-- also held a press conference yesterday to criticize the hearings. (Transcript of press conference.)

Fired Nurse Sues Catholic Hospital For Defamation

The San Antonio Express-News reports on a defamation lawsuit against a Catholic hospital that went to trial yesterday in a Bexar County (TX) trial court. Tammy Perez is a devout Catholic who was formerly employed as a nurse by Christus Santa Rosa Health System. She claims that the hospital defamed her in the process of firing her in retaliation for her reporting to officials of the Archdiocese that the hospital had performed an abortion. She prepped the patient for the procedure. The hospital says that the procedure at issue involved a miscarriage, while Perez claims that there had not been an ultrasound to determine if there was still a fetal heart beat. She says the patient told her she had not miscarried. The hospital says they fired Perez because she violated privacy laws by revealing medical information regarding the patient to a priest who was the archdiocesan administrator. Meanwhile, in response to a pre-trial motion, the court ruled that the question of whether an abortion in fact was performed will not be an issue at trial.

House Will Defend DOMA In Court

House Speaker John Boehner announced Wednesday that after consultation with the Bipartisan Leadership Advisory Group, he has directed the House General Counsel to initiate a legal defense of the Defense of Marriage Act.  Boehner had announced last week that he was convening the Advisory Group after the Obama administration decided that it would no longer defend DOMA's constitutionality. (See prior posting.) According to AHN, the Advisory Committee's vote in favor of defending the law was 3-2, along party lines. Joe Solmonese, president of the Human Rights Campaign, criticized Boehner's action, saying: "The Republicans' jobs plan is a full employment project for right-wing lawyers bent on defending discrimination." [Thanks to Alliance Alert for the lead.]

State AG Challenge To Bush Era Conscience Rules Dropped Because of Revisions

A lawsuit filed in 2009 by a coalition of state attorneys general challenging the health care provider conscience rules promulgated by the Bush administration was dropped last week.  According to BNA Daily Report for Executives, the suit originally filed by the Connecticut attorney general and then joined by others was dropped because a Feb. 18, 2011 revision of the rule has rescinded the parts of the rule which the attorneys general found objectionable. The original suit alleged that the 2008 regulation limited women's access to necessary medical services, including emergency contraception.