Federal Judge Urges Settlement Negotiations In FLDS UEP Trust Case

As previously reported, last month a Utah federal district court held unconstitutional the five years of Utah state court proceedings aimed at reforming the polygamous FLDS Church's United Effort Plan Trust.  The state plans to appeal the ruling. Meanwhile, Fox13Now reports that during a status conference on Tuesday, federal district judge Dee Benson urged attorneys for the state, the FLDS Church and the trust to re-institute settlement negotiations. The parties appear willing to try again, but the matter is complicated by ex-FLDS members who have now moved into some homes on trust property.

Malaysia Will Release Impounded Christian Bibles, Subject To Conditions

In Malaysia, the Home Ministry on Tuesday decided to release back to the Bible Society of Malaysia and The Gideons 35,000 copies of a Malaysian translation of the Christian Bible that had been impounded. (See prior posting.)  UPI and The Star report that the Performance Management  and Delivery Unit originally seized the Bibles that came in two separate shipments because they use the word "Allah" as a translation for "God." However the Ministry’s Publications Control and Quranic text division has now decided to permit the Bibles to be imported, subject to certain conditions. The Ministry has stamped on each Bible the warning: "The Good News Bible is for the use of Christians only."  It also wants serial numbers and the official Ministry stamp on the Bibles. The Bible Society has concerns over these conditions and wants to discuss them further. Some Malaysian states have laws prohibiting use of the word "Allah" by non-Muslims and a challenge to a similar ban by the Home Ministry is still pending in Malaysian courts. (See prior posting.)

Establishment Clause Challenge To City's Invocation Policy Survives Motion To Dismiss

In Atheists of Florida, Inc. v. City of Lakeland, Florida, (MD FL, March 15, 2011), a Florida federal district court allowed plaintiffs to proceed with their federal and state Establishment Clause claims challenging the invocation policy of the Lakeland (FL) City Commission. The city maintains a list from which they invite various clergy to deliver prayers at the beginning of each meeting. Plaintiffs claim that the city's practice, with one exception, has been to exclude non-Christians and the non-religious. After the lawsuit was filed, the city passed a new policy, but plaintiffs claim both that the official policy is unconstitutional and that the actual practice deviates from the formal policy. However plaintiffs' equal protection and free speech claims were dismissed. Tuesday's Lakeland (FL) Ledger reports on the decision.

Democrats In Congress Introduce Bill To Repeal DOMA

The Hill reported yesterday that Democrats in both the House and Senate have introduced the Respect for Marriage Act (full text). The bill would repeal the Defense of Marriage Act and instead recognize as valid for federal law purposes any same-sex marriage that was legally entered into in the jurisdiction where it was performed. On the Senate side, the bill was introduced by Sen. Dianne Feinstein and is co-sponsored by 18 other Senate Democrats. (Press release.) In the House, the bill was introduced by Representatives Jerrold Nadler and John Conyers, and is co-sponsored by four gay and lesbian members of Congress. The Hill says that the chances of the bill passing the House are slim.

New Hampshire High Court Upholds Public Schooling Over Home Schooling In Parental Dispute

In a widely followed case, the New Hampshire Supreme Court has upheld a trial judge's order that an 11-year old girl be enrolled in public school rather than continue to be primarily home schooled by her mother.  The issue arose when the girl's divorced parents who shared parental responsibilities could not agree on schooling plans.  While the mother argued that the trial court's order violated parental rights to control the education of their children in conjunction with the free exercise of religion, the court said:

While this case has religious overtones, it is not about religion. While it involves home schooling, it is not about the merits of home versus public schooling. This case is only about resolving a dispute between two parents, with equal constitutional parenting rights and joint decision-making responsibility, who have been unable to agree how to best educate daughter.

In In re Kurowski, (NH Sup. Ct., March 16, 2011), the court concluded:

Because the parents in this case reached an impasse on the exercise of their respective parenting rights, the trial court properly utilized the best interests standard to resolve the dispute. The trial court’s decision is not subject to strict scrutiny review merely because the case involves the fundamental parental right to make decisions for daughter’s education and the parents' divergent religious convictions.

Alliance Defense Fund issued a press release on the decision. (See prior related posting.)

Harvard Law Prof. William Stuntz Dies

In a tribute to "an examined life of thoughtfulness and grace", Harvard Law School yesterday announced that renowned criminal justice scholar and beloved teacher William Stuntz died on March 14 after a long battle with cancer. At a conference last year, one participant described Prof. Stuntz's scholarship as follows:

Stuntz’s work builds a bridge between the religious and the secular, the pragmatic and the evangelical, with his intellectual commitments both rooted in faith and insistent on reasoned evidence. In the world of criminal legal discourse, this is an invaluable contribution.

On his blog, which he co-authored with David Skeel, he and Skeel said: "We are both law professors and evangelical Protestants – a weird combination in our time. We hope it’s also an interesting combination."
[Thanks to Legal Theory blog for the lead.]

9th Circuit En Banc Finds Court Holding Facility Is Covered By RLUIPA

The U.S. 9th Circuit Court of Appeals yesterday in an en banc decision in Khatib v. County of Orange, (9th Cir., March 15, 2011), concluded that the holding facility at the Santa Ana (CA) courthouse is a "pretrial detention facility" that is covered by RLUIPA. The issue arose in the context of a lawsuit by a Muslim woman who was held in the facility for a number of hours after the court revoked her probation. Officers there insisted that she remove her headscarf even though this was a violation of her religious beliefs.  A 3-judge panel in the case had held, 2-1, that the holding cell was not covered by RLUIPA. The 11-judge en banc panel disagreed unanimously. Neither of the two judges in the majority on the 3-judge panel were among the eleven that heard the case en banc. Courthouse News Service reports on the decision.

Proposed Tajik Law Banning Children's Participation In Religious Activities Draws Objections

Forum 18 reports that in Tajikistan yesterday the public consultation period ended on a controversial proposed Law on Parental Responsibility for the Education and Upbringing of Children.  After receiving more than 30,000 comments on the proposed law, the President's office said opinions of religious communities will be taken into account and changes will be made in the draft.  The proposal, initiated by Tajikistan's President Emomali Rahmon last year, would require parents to prohibit their children from participating in organized religious activities, except for funerals.  Apparently its goal is to stop children from attending mosques in the majority-Muslim country.  However it will also negatively impact the minority Russian Orthodox community.  Other provisions in the law require parents to give children names that reflect national values. It requires that children be educated in the spirit of respect for the homeland, national and universal values. It requires school uniforms and bans children having access to materials that contain violence, extremism, terrorism or other manifestations against morals.

Utah Police Arrest Man Who Used Animal Parts and Human Skulls For Religious Rites

According to NBC News, in Clearfield, Utah on Sunday detectives arrested Roberto Casillas-Corrales for investigation of abuse or desecration of a human body.  While executing a search warrant as part of a drug investigation, officers found a shed full of animal carcasses, along with two human skulls, behind Casillas-Corrales' home. Casillas-Corrales says he is a Santeros, or priest, and that he uses the skulls and animal parts for religious ceremonies.  He apparently purchased the skulls from individuals who took them from graves in Cuba.  It is unclear whether the animal parts will lead to additional charges.  Federal immigration agents are also involved in the investigation since Casillas-Corrales is not a U.S. citizen.

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."