Teaching of Religion In Australian Schools Is Challenged

In Australia, a claim has been filed with the Equal Opportunity Commission against the state of Victoria challenging the teaching of religion in state schools. ABC News reported yesterday that parents claim that if their children opt out of religious classes, they are sometimes left unsupervised. They claim that it is discriminatory to force young children to identify themselves as non-believers and walk out of the classroom.

Florida Judge Issues Explanatory Opinion In Mosque Arbitration Case

On Tuesday a Florida state circuit court judge issued a written opinion in Mansour v. Islamic Education Center of Tampa, Inc., (FL Cir. Ct., March 22, 2011), in order to "discuss the facts, procedural history and analysis" that led to a now-controversial order that Islamic law would be used in deciding whether to enforce an arbitration award between a mosque and certain trustees of the mosque who had been removed from office. (See prior posting.) The court explained:

From the outset of learning of the purported arbitration award, the court’s concern has been whether there were ecclesiastical principles for dispute resolution involved that would compel the court to adopt the arbitration decision without considering state law. Decisional case law both in Florida and the United States Supreme Court tells us that ecclesiastical law controls certain relations between members of a religious organization, whether a church, synagogue, temple or mosque....

The court has concluded that as to the question of enforceability of the arbitrator's award the case should proceed under ecclesiastical Islamic law.... The court will require further testimony to determine whether the Islamic dispute resolution procedures have been followed in this matter.

[Thanks to Michael A. Helfand via Religionlaw for the lead.] 

9th Circuit Continues Ban On Same-Sex Marriages In California As Appeals Go On

Scotus Blog reports that the 9th Circuit yesterday, in the ongoing challenge to the constitutionality of California's Proposition 8, refused to lift its earlier order barring same-sex marriages while appeals of the district court's invalidation of Prop 8 were proceeding through the courts. Yesterday's order (full text) in the case (which is now captioned Perry v. Brown) said the court was denying plaintiffs' motion "at this time." Currently the case is winding its way through the courts on the issue of whether plaintiffs have standing to challenge Proposition 8. (See prior posting).

Recent Prisoner Free Exercise Cases

In Coleman v.Caruso, 2011 U.S. App. LEXIS 5328 (6th Cir., March 16, 2011), the 6th Circuit rejected an inmate's claim that prison policy on administrative segregation violates prisoners' free exercise rights as protected by RLUIPA.  The court concluded that limits on television available and on battery operated devices in administrative segregation did not place a substantial burden on the free exercise of religion.

In Ajaj v. Federal Bureau of Prisons, 2011 U.S. Dist. LEXIS 26393 (D CO, March 10, 2011), a Colorado federal district court rejected on various grounds, including failure to allege personal participation by various defendants in the alleged violations, a Muslim inmate's complaints that his practice of religion was burdened by lack of halal meals, and interference with his ability to celebrate religious holidays, participate in congregational prayer and obtain certain religious items.

In Greenwood v. Maketa, 2011 U.S. Dist. LEXIS 26911 (D CO, March 3, 2011), a Colorado federal district court allowed an inmate to proceed against some defendants named in the suit on his complaint that he was not allowed to mail out religious study guides, and that despite his switch from Christianity to the Muslim faith he is being forced to eat non-kosher meals and was not [sic.] removed from the Ramadan list.

In Knight v. Mulvaney, 2011 U.S. Dist. LEXIS 26778 (WD MI, March 15, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26649, Feb. 4, 2011) and dismissed claims by an inmate (who has now been released) that his rights were violated when he was designated a security threat group leader for practicing the tenets of Nation of Islam in organizing NOI services, and for possessing religious literature from the group.

In Smith v. California Board of Parole Hearings, 2011 U.S. Dist. LEXIS 26876 (CD CA, March 14, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 26849, Feb. 9, 2011), and rejected an inmate's claim that his Establishment Clause rights were violated when, in the hearing that led to his denial of parole, board members discussed his failure to continue going to AA/NA programs. Petitioner said he had objections to the religious nature of the programs.

In Riley v. Beard, 2011 U.S. Dist. LEXIS 27092 (MD PA, March 14, 2011), a Pennsylvania federal district court held that RLUIPA was not violated by a prison policy that barred Muslim prisoners from consuming special foods available for purchase for Muslim religious feasts when they did not have money to pay for them. Inmates who cannot pay are allowed to celebrate the feast with the regular prison menu.

Suit Seeks to Bring Building Under Religious Exception In Historic Preservation Law

In Peoria, Illinois, according to yesterday's Peoria Journal, the Westminster Presbyterian Church has filed a state court lawsuit seeking to invoke a change made in February in the city's historic preservation ordinance. The ordinance was amended to exclude buildings used primarily for religious ceremonies or to further the religious mission or business of the owner.  The church wants to tear down Westminster House, built as a dwelling, but used for 25 years until 2006 as the regional office of the Presbyterian Church.  Now to bring the unused building under the preservation ordinance exception, beginning March 9 the church started holding weekly men's fellowship prayer meetings in the building.  The complaint (full text) in Westminster Presbyterian Church v. City of Peoria, Illinois, (IL Cir. Ct., filed March 21, 2011), seeks a declaratory judgment that the fellowship meetings are sufficient to qualify Westminster House for the religious use exemption. It also asks for a writ of mandamus requiring the inspections department to issue a demolition permit.

Senate Judiciary Subcommittee Schedules Hearings On Civil Rights of American Muslims

U.S. Senator Dick Durbin (D-IL), Chairman of the Senate Judiciary Subcommittee on the Constitution, Civil Rights and Human Rights, has scheduled a hearing on March 29 on civil rights of American Muslims. (Press release). Witnesses will include Muslim civil rights leader Farhana Khera; Cardinal Theodore McCarrick; Assistant Attorney General for Civil Rights Tom Perez; and Bush administration Assistant Attorney General Alex Acosta. Durbin's office says: "The hearing is in response to the spike in anti-Muslim bigotry in the last year including Quran burnings, restrictions on mosque construction, hate crimes, hate speech, and other forms of discrimination."

Church Leaders, Parents Charged With Child Abuse In "Biblical Punishment" of Their Children

The Superior (WI) Telegram yesterday reports that the leaders of a Black Earth, Wisconsin church have been charged with child abuse for using wooden spoons and dowels to hit the backsides of children in their family and in the families of other church members. Philip Caminiti, head pastor and elder at Aleitheia Bible Church, and his brother, John Caminiti, say that the Bible calls for using this kind of punishment on children-- apparently referring to Proverbs 13:24. The pastor instructed parents on how to use rods to spank their children.  Three other couples who are members of the church have been subpoenaed by the Dane County (WI) Circuit Court on charges of being parties to intentional abuse of their children.

US Embassy In Pakistan Condemns Florida Pastor's Burning of Qur'an

The U.S. Embassy in Pakistan issued a statement (full text) yesterday saying that it: "condemns the burning of a copy of the Holy Koran in the State of Florida, United States. This is an isolated act done by a small group of people that is contrary to American traditions. It does not reflect the general sentiment of respect toward Islam by the people of the United States." The statement refers to action taken last Sunday by controversial pastor Terry Jones of the Dove World Outreach Center in Gainesville. (See prior posting.) According to WFTV News, Jones conducted a 6-hour mock trial of the Qur'an at his church before 30 people and a film crew. Finding the Qur'an guilty of promoting violence, he burned it. Despite the fact that Jones' activity received little publicity, Pakistan's president Asif Ali Zardari condemned it during a televised address to the federal parliament yesterday.The Pakistani foreign ministry also condemned the burning, saying it has deeply hurt the feelings of Muslims around the world.

U.K. Court Says Scriptural Ad Against Gay Pride Parade Did Not Violate Advertising Code

A High Court judge in Belfast, Northern Ireland, has overturned a decision by the U.K.'s Advertising Standards Authority that an ad run by the Sandown Free Presbyterian Church opposing a 2008 gay pride parade violated the ASA's advertising code. At issue is an ad captioned: "The Word of God Against Sodomy." ASA ruled that the ad should not appear again in its current form because it violated a provision of the advertising code that bars ads likely to cause serious or widespread offence on the basis of sexual orientation. (See prior posting.) According to BBC News yesterday, the high court rejected that conclusion, writing in part:

The applicant's religious views and the Biblical scripture which underpins those views no doubt cause offence, even serious offence, to those of a certain sexual orientation. Likewise, the practice of homosexuality may have a similar effect on those of a particular religious faith. But Article 10 (of the European Convention on Human Rights) protects expressive rights which offend, shock or disturb.

Moreover, Article 10 protects not only the content and substance of information but also the means of dissemination since any restriction on the means necessarily interferes with the right to receive and impart information.

The court noted that the ad did not condone violence and was a genuine attempt to defend the church's religious beliefs.

Illinois Appeals Court Upholds Sanctions In Husband's Challenge To Order Requiring Jewish Divorce Document

In Schneider v. Schneider, (IL App., March 15, 2011), an Illinois appellate court upheld the trial court's award of attorneys' fees as a sanction under Illinois Civil Rule 137 (the equivalent of Federal Rule 11) to a divorced wife who succeeded in her lawsuit to force her husband to issue her a Jewish divorce document (a "get"). The trial court, relying on a 1990 Illinois appellate court decision [Lexis link], had issued an order directing the husband to secure a "get" for his wife. The husband argued that the1990 case was inapplicable, reiterating the argument in six different pleadings even though the court trial court rejected the claim.

Dispute Over Ouster of Mosque Trustees Reignites Debate Over U.S. Courts Applying Shariah Law

A case in Tampa, Florida has re-ignited debate over the application of Shariah law by U.S. courts. The unusual procedural posture of the case has a Tampa mosque arguing against Florida courts applying religious law, while former trustees of the mosque are arguing in favor of using religious law.

As best as can be pieced together from a report in yesterday's St. Petersburg Times, four individuals claim that in 2002 they were improperly removed as trustees of the Islamic Education Center of Tampa. The board make-up is particularly contentious because the mosque has $2.2 million it received in an eminent domain proceeding when the state took some of its land to build a road. The ousted trustees filed a lawsuit against the other trustees of the mosque challenging the validity of their actions that purported to remove plaintiffs from the board. However apparently all the parties agreed that if the lawsuit was dismissed by the state court, the dispute would be submitted to arbitration by an "A'lim"-- a Muslim scholar trained in Islamic law. The suit was dismissed by the court, and in arbitration proceedings that followed, the A'lim ruled that the plaintiffs had been improperly removed.

Plaintiffs then filed another state court lawsuit against the mosque itself asking the court to enforce the arbitration ruling on the mosque and reinstate them as trustees. The court issued an oral interlocutory order during an evidentiary hearing on plaintiff's emergency motion to enforce the arbitrator's award. This was followed by a written order memorializing the court's ruling.  It is this order in Mansour v. Islamic Education Center of Tampa, Inc., (FL Cir. Ct., March 3, 2011) (full text) that has become controversial. In the suit to enforce the arbitration ruling, the mosque argued that the arbitration ruling was not binding on it because its board was never properly notified of the arbitration proceeding.  The mosque, as opposed to some or all of the individual defendants, did not participate in the arbitration.  So the court ruled that it would now proceed to determine "whether Islamic dispute resolution procedures have been followed in this matter."  In its order, the court recited that: "This case will proceed under Ecclesiastical Islamic law."

The mosque has filed an appeal of the trial court's order, arguing that Florida law, not Islamic law, should be applied by the civil courts.

Standing, Limited Preliminary Injunction Granted In Challenge To Santa Rosa County Consent Decree

The long-running litigation over religious practices in the Santa Rosa County, Florida schools continues. In 2009, the Santa Rosa County School Board entered into a consent decree, admitting widespread Establishment Clause violations. (See prior posting.)  Then a group of teachers, staff, former students, community members and clergy filed suit challenging the consent decree, claiming that it violates and chills their First Amendment rights. (See prior posting.)  In Allen v. School Board for Santa Rosa County, Florida, (ND FL, March 21, 2011), a Florida federal district court held that some of the plaintiffs have standing to challenge the consent decree, while certain others do not.  Finding that the need to explore factual issues precludes ruling on the merits based merely on allegations in the pleadings, the court indicated that a hearing would be scheduled for mid-summer. In the meantime, the court issued a preliminary injunction barring the school from enforcing that part of the consent decree that restricts school district employees from participating in private religious or baccalaureate services. Liberty Counsel issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Australian Commission Releases Report on Freedom of Religion In 21st Century

Yesterday the Australian Human Rights Commission released a 92-page report titled Freedom of Religion and Belief in 21st Century Australia.  Here are some excerpts from the Report's findings:

[T]here is strong support from all voices – whether religious, spiritual, secular or agnostic – for education about the religions, spiritualities and worldviews present in and affecting Australia.... The self-definition and religious character of Australia has been and remains a contentious issue, with various voices advocating Australia as a Christian nation, or as a secular nation, or as a multifaith plural nation.... Greater recognition of a wider range of spiritual communities in Australia, such as pagan and Indigenous beliefs, is needed....

Religious Australia is generally well-led by its leaders who understand the complexities of a complex civil society. There were, however, calls for comprehensive orientation training for clergy from overseas who are now serving in Australia, whose numbers are increasing....

Legislation was perhaps the biggest issue to emerge....  [D]istrust of and opposition to any legislative change was the strongest sentiment expressed[,] ... primarily to protect exemptions for religious groups from anti-discrimination legislation.... 

Significant distrust of Muslims and Islam was expressed by some. There were also reports of discrimination against Muslims and other religious minorities....

[C]oncern was expressed regarding the perceived growing influence of religious lobby groups in Australia, and their perceived influence in government policy-making and decisions. On the other hand, religious groups are concerned that religion is under threat from what was termed ‘aggressive secularism’, and that the role of religion and its contribution to the social and economic advancement of the community is undermined, and a lack of respect for faith and people of faith exhibited.

An important finding is that no religious group argued that it sought to make its religious law the law of Australia or of the individual states and territories. All saw their role as working within the constitutional framework of Australia.

Supreme Court Denies Review In Tax Case On Definition of "Church"

The Supreme Court today denied certiorari in Foundation of Human Understanding v. United States, (Docket No. 10-648, cert. denied 3/21/2011) (Order List). In the case, the U.S. Court of Appeals for the Federal Circuit held that the Foundation of Human Understanding, while retaining its 501(c)(3) non-profit status, did not qualify as a "church" for purposes of Sec. 170(b)(1)(A)(i) of the Internal Revenue Code.  The Circuit Court held that in order to meet the definition of a church, a religious organization must show that it has a body of believers who assemble regularly for communal worship. (See prior posting.)

Amish Alternative Bankruptcy Plan Would Violate Establishment Clause

 In re Beachy, (ND OH Bkrpt., March 18, 2011), involves an unusual intersection of the Establishment Clause with the federal Bankruptcy Code.  Monroe L. Beachy, a member of the Amish community, filed a bankruptcy petition in federal bankruptcy court in Ohio.  Beachy operated a securities firm that he ultimately turned into a Ponzi scheme, leaving investors with $33 million in claims against his $18 million in assets. Because both the debtor and the vast majority of investors are members of the Amish or Mennonite communities, a group from those communities proposed a Plain Community alternative plan to the bankruptcy proceedings. Plain Community members interpret the Bible as barring the use of civil courts to resolve financial disputes. Beachy asked the court to dismiss his bankruptcy petition and allow investors to proceed under the alternative plan. The court refused, saying:

The debtor in this case is clearly asking this court to delegate its function to a religious body. The motion to dismiss is conditioned on the court transferring estate funds to the Committee, which, according to the Committee's own filings, is a unit established by a church.... Any such delegation is forbidden by the Establishment Clause, regardless of the specific facts of a particular case.

The court rejected the argument that acceptance of the alternative plan was required by the Religious Freedom Restoration Act, saying that applying the Act in that way would violate the Establishment Clause. Moreover, in the court's view, the government has a compelling and narrowly tailored interest in an orderly and predictable bankruptcy system. The Dover- New Philadelphia (OH)  Times Reporter  discusses the decision. (See prior related posting.)

In Egypt, Big Win For Constitutional Amendments May Boost Muslim Brotherhood

The New York Times reported that 77.2% of Egyptian voters approved the country's proposed constitutional amendments in a referendum election held Sunday. 41% of all eligible voters turned out at the polls. Those in the more liberal wings of Egyptian politics say that the vote means early elections can be called. This favors the Muslim Brotherhood and former President Mubarak's party-- the only two parties that are well-organized at this point.  Opponents that urged a "no" vote on the constitutional amendments in order to give new parties more time to organize say that religious appeals played a part in the referendum election campaign. Some say that religious organizations told their followers that a vote against the proposed amendments would threaten Article 2 of the Constitution that provides for Islam as the official state religion and Islamic law as  the principal source of civil legislation. Reuters reports that many Egyptian Christians voted against the proposed amendments, fearing that rapid elections will encourage the rise to power of Islamist groups. Many Coptic Christians were disappointed that the proposed constitutional amendments do not eliminate Article 2 of the Constitution.

Ministerial Exception Does Not Bar Catholic High School Teacher's Age Discrimination Claim

In Hendricks v. Marist Catholic High School, (D OR, March 16, 2011), an Oregon federal district court refused to apply the ministerial exception to prevent a Catholic high school teacher from bringing an age discrimination claim after his teaching contract was terminated.  The court said that because plaintiff was neither an actual nor potential member of the clergy, but instead a "Lay Teacher", the exception does not apply under 9th Circuit precedent. He was not the functional equivalent of a minister, even though some of his job duties involved religion. Nor did the court find a separate Establishment Clause basis for dismissing plaintiff's lawsuit. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Christa Rautenbach, Deep Legal Pluralism in South Africa: Judicial Accommodation of Non-State Law, (Journal of Legal Pluralism and Unofficial Law, Vol. 60, pp. 143-177, 2010).
• David Groshoff, Hoisted by the ‘God, Guns, and Gays’ Petard: Recognizing Bullycidal Queer Students’ Rights to Engage in Lethal Self-Defense, (March 1, 2011).
• Kalyani Ramnath, Of Limited Suits and Limitless Legalities: Interpreting Legal Procedure in the Ayodhya Judgment, (NUALS Law Journal, Forthcoming).
• Filippo Fontanelli, Was Jesus Running Wild? Judicial Activism or Blasphemy, Christ and the Law in Saint Augustine and Saint Thomas, (International Journal of Private Law, No. 4, 2011).
• Sergio Novani, The Testimonial Argumentation, (March 14, 2011).

From SmartCILP and elsewhere:

• Abed Awad and Robert E. Michael, Iflas and Chapter 11: Classical Islamic Law and Modern Bankruptcy, 44 The International Lawyer 975-1000 (2010).
• The April 2011 issue of First Things has recently appeared.

Canada's Supreme Court Will Decide Niqab In Court Case

Canada's Supreme Court this week granted leave to appeal in N.S. v. Her Majesty the Queen, (leave granted, March 17, 2011). In the decision below, Ontario's highest appellate court held that a judge conducting a preliminary inquiry in a criminal case has discretion whether or not to permit a Muslim woman to testify with her face covered. (See prior posting.)  Suite 101 has more background on the case.

Recent Prisoner Free Exercise Cases

In DeMoss v. Crain, (5th Cir., March 2, 2011), the 5th Circuit rejected a Muslim inmate's 1st Amendment and RLUIPA challenges to prison policies that required inmate-led religious services to be tape recorded when there is no staff member or outside volunteer present; barred inmates from carrying a pocket-sized Bible or Qur'an; required inmates to be clean-shaven; and did not permit inmates to stand for extended periods of time in prison dayrooms. A challenge to a policy that prohibited inmates confined to their cells for disciplinary infractions from attending religious services was dismissed as moot since the policy has been changed.

In Perez v. Williams, 2011 U.S. App. LEXIS 5109 (5th Cir., March 11, 2011), the 5th Circuit agreed with the district court that an inmate's free exercise claim was frivolous. Plaintiff complained that prison policy prohibits him from carrying his Bible or anything else other than his identification card on the recreation yard.

In Kates v. Micieli, 2011 U.S. Dist. LEXIS 24580 (WD LA, Feb. 23, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 24078, Feb. 7, 2011) and rejected a Muslim inmate's claim that his free exercise rights were violated when over a two day period he could not pray 5 times per day because he was placed in restraints for 18 hours.

In Johnson v. Varano, 2011 Pa. Commw. Unpub. LEXIS 194 (PA Commnw., March 9, 2011), a Pennsylvania state appellate court dismissed a Muslim inmate's free exercise claims against the Superintendent and kitchen staff growing out of a single incident in which the inmate was served pork. However the court remanded for further proceedings the question of whether the inmate had a cause of action in tort against the food services provider.

In Woodall v. Schwarzenegger, 2011 U.S. Dist. LEXIS 24395 (SD CA, March 9, 2011), a California federal district court permitted an inmate to proceed with his claim that prison officials destroyed his religious books.

In Washington-El v. Beard, 2010 U.S. Dist. LEXIS 141953 (WD PA, Dec. 16, 2010), a Pennsylvania federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was unable to attend religious services because of his placement on the Restricted Release List. A federal district judge adopted this portion of the magistrate's recommendations (2011 U.S. Dist. LEXIS 24562, March 11, 2011).

In Dove v. Broome County Corretional Facility, 2011 U.S. Dist. LEXIS 24528 (ND NY, March 10, 2011), a New York federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 25219, Feb. 17, 2011) and dismissed a Jewish inmate's complaint that he was denied kosher food for 30 days after having been observed eating a non-kosher meal when delivery of his kosher meal was delayed.

In Goodwin v. Hamilton, 2011 U.S. Dist. LEXIS 25790 (ED MI, March 14, 2011), a Michigan federal district court rejected a magistrate's recommendations (2010 U.S. Dist. LEXIS 142004, Jan. 13, 2011), and found that plaintiff had not presented sufficient evidence to support his Establishment Clause challenge to his attendance at a religiously-based substance abuse program after a parole violation. There was no evidence that plaintiff informed the staff of his objections to attending.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 25910 (ED AR, March 11, 2011), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 142011, Dec. 2, 2010) and permitted an inmate to proceed with his claims that his free exercise rights were violated when prison officials refused to provide him with nutritionally adequate meatless meals.