Controversial Pastor Wants To Demonstrate Against Islam In Dearborn On Good Friday

Florida pastor Terry Jones, who has gained notoriety for placing the Qur'an on trial and burning a copy in his small Florida church (see prior posting), is planning to hold a Good Friday demonstration in front of Dearborn, Michigan's Islamic Center of America. Police fear that the demonstration will cause a riot, and say that Jones and an associate will both be carrying guns. Police fear Jones will burn another Qur'an at his demonstration, though Jones denies this and says he will merely be demonstrating against Sharia and extremist Islam. According to the Detroit News, Michigan prosecutors want Jones to post a bond before the demonstration, and to pay the projected $100,000 in extra police overtime costs that will be incurred because of the demonstration.  A state court judge has set a hearing for 3:00 p.m. on Thursday. Meanwhile, Dearborn Mayor Jack O'Reilly has written a powerful open letter to Jones (full text) asking him to hold his demonstration at the city's "Permit Free Zone" in front of City Hall.  The mayor says that if Jones instead demonstrates in front of the Islamic Center, he will also be blocking access to Good Friday services at four nearby Christian churches.

White House Hosts Passover and Easter Events

This week the White House has hosted both Passover and Easter events. On Monday evening, the President and First Lady hosted a small Passover Seder in the Old Family Dining Room of the White House. A White House release points out that during the 2008 Presidential campaign, Obama began his tradition of hosting a Seder. This year the White House included on its website interesting recipes from 8 Jewish chefs around the country.

On Tuesday morning, the President hosted the White House's 2nd annual Easter Prayer Breakfast in the East Room. Christian clergy and leaders from around the country were in attendance. In his remarks (full text included in White House Release), Obama said in part:

I wanted to host this breakfast for a simple reason -– because as busy as we are, as many tasks as pile up, during this season, we are reminded that there’s something about the resurrection -- something about the resurrection of our savior, Jesus Christ, that puts everything else in perspective.

Supreme Court Holds Inmates May Not Recover Damages Against States In RLUIPA Suits

In an important interpretation of the Religious Land Use and Institutionalized Persons Act, the U.S. Supreme Court on Tuesday in Sossamon v. Texas (US Sup. Ct., April 20, 2011) held, in a 6-2 decision, that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA. Section 4 of RLUIPA provides that inmates may “obtain appropriate relief against a government” that has substantially burdened their religious exercise without having a compelling interest for doing so, and which does not use the least restrictive means in achieving that interest. The majority opinion, written by Justice Thomas, concluded that waiver of sovereign immunity requires an express and unequivocal statement to that effect in the statute, and that this standard has not been met here as to the imposition of monetary damages. A dissent, written by Justice Sotomayor and joined by Justice Breyer disagreed. They argued that it should have been clear to state officials that “appropriate relief” includes monetary damages and not just equitable relief.  They worried that without the possibility of monetary damages, often effective relief will be unavailable. Justice Kagan took no part in the decision.  UPI reports on the decision.  (See prior related posting.)

Cert. Denied In Kentucky Baptist Homes Cases

The U.S. Supreme Court today denied certiorari in two companion cases, Kentucky Baptist Homes v. Pedreira (Docket No. 09-1121, cert, den. 4/18/2011) and Pedreira v. Kentucky Baptist Homes (Docket No. 09-1295, cert. den. 4/18/2011). (Order List.) In the case the 6th Circuit first rejected an employment discrimination claim brought brought by a Family Specialist who had been fired because she was a lesbian. Second, the 6th Circuit held that federal taxpayers lack standing to challenge the channeling of federal child care funds to KBHC by the state of Kentucky, but that state taxpayers have standing to challenge state funds paid to KBHC for the care of children. (See prior posting.) Courthouse News Service reports on the Supreme Court's denial of review. [Thanks to Don Byrd for the lead.]

Companion Arizona Tuition Organization Tax Credit Case Summarily Decided By Supreme Court

Today, the U.S. Supreme Court disposed summarily of Arizona School Choice Trust v. Winn, (Docket No. 09-988) granting certiorari and remanding the case to the 9th Circuit for further proceedings. (Order List)  The case was a companion case to Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn that the Court decided together earlier this month, holding that taxpayers lack standing to challenge Arizona's school tuition organization tax credit program. The cases decided together had the same counsel, while different counsel represented petitioners in the case disposed of today.

Senate Confirms International Religious Freedom Ambassador

CBN News reports that on April 14 the U.S. Senate finally confirmed Dr. Suzane D. Johnson Cook as Ambassador at Large for International Religious Freedom.  President Obama nominated Cook initially in 2010, but when the 111th Congress failed to vote on her confirmation, the President resubmitted it this year. (See prior posting.) [Thanks to Religion News Service for the lead.]

Malta Ambassador Douglas Kmiec Resigns After Criticism of His Religious Writing

AP and National Catholic Reporter both report on the resignation of U.S. Ambassador to Malta, Douglas Kmiec. Last week he announced he will resign as of August 15 after a State Department Inspector General's report criticized him for spending too much time writing and speaking about his Catholic religious beliefs. (See prior posting.) In his April 13 resignation letter to President Obama (full text) asking the President to "accept my resignation effective on the Feast of Assumption 2011," Kmiec said that he doubted very much whether one could ever spend too much time trying to find common ground between faiths. In a letter sent to Secretary of State Hillary Clinton (full text), Kmiec complained that the Inspector General's office "failed to read any of my writing or see its highly positive effect on our bilateral relations."

Obama Extends Passover Wishes To Those Celebrating the Festival

The Jewish holiday of Passover begins tonight.  On Friday, President Obama issued a statement (full text) extending warmest wishes from him and his family to all those celebrating the holiday. The statement said in part:

The Seder, with its rich traditions and rituals, instructs each generation to remember its past, while appreciating the beauty of freedom and the responsibility it entails.

This year, that ancient instruction is reflected in the daily headlines as we see  modern stories of social transformation and liberation unfolding in the Middle East and North Africa.

Recent Articles of Interest

From SSRN:

• John Witte and Joel A. Nichols, Faith-Based Family Laws in Western Democracies?, (Fides et Libertas: The Journal of the International Religious Liberty Association, pp. 119-132, 2010).
• Raj Bhala, Doha Round Betrayals, (Emory International Law Review, Vol. 24, pp.147-183, 2010).
• Barak D. Richman, Saving the First Amendment from Itself: Relief from the Sherman Act Against the Rabbinic Cartels, (April 12, 2011).
• William P. Umphres, ‘Justice is a Bad Idea for Christians’: Religious Identity in Political Deliberation, (April 1, 2011).
• Nicholas Aroney and Rex Ahdar, The Topography of Shari’a in the Western Political Landscape, (Shari'a In the West, Rex Ahdar and Nicholas Aroney (eds), Oxford: Oxford University Press, 2010).
• Hannibal Travis, Youtube from Afghanistan to Zimbabwe: Tyrannize Locally, Censor Globally, (Florida International University Legal Studies Research Paper No. 11-10, April 1, 2011).
• Hannibal Travis, Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, (Genocide in the Middle East: The Ottoman Empire, Iraq, and Sudan, Carolina Academic Press, 2010).
• I. Glenn Cohen and Sadath Sayeed, Fetal Pain, Abortion, Viability and the Constitution, (The Journal of Law, Medicine and  Ethics, Vol. 39, 2011).
• Deana Pollard-Sacks, Snyder v. Phelps: A Slice of the Facts and Half an Opinion, (Cardozo Law Review De Novo, p. 64, 2011).

Court Says Factual Issues Remain As To Reasonable Accommodation of Sabbath Observance

In Maroko v. Werner Enterprises, Inc., (D MN, April 14, 2011), a Minnesota federal district court refused to grant summary judgment to a Seventh Day Adventist employee who was terminated from his position as a delivery truck driver because he refused to work on his Sabbath-- sundown Friday to sundown Saturday. In plaintiff's Title VII action, the court concluded that disputed factual issues exist as to whether the employer had offered plaintiff a reasonable accommodation. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Why Has The Niqab Become So Controversial In France?

Today's New York Times carries and interesting and provocative analysis of why wearing of the niqab (full face veil) by Muslim women has become such a controversial issue in France. (A French ban on wearing the full face veil in public took effect last week.)  Here are some excerpts:

In French culture, the eyes are supposed to meet in public, to invite a conversation or just to exchange a visual greeting with a stranger. Among Muslims, the eyes of men and women are not supposed to meet, even by chance, and especially not in public or between strangers....

French tradition has also long encouraged mixing of the sexes in social situations. “The veil ... interrupts the circulation of coquetry and of paying homage, in declaring that there is another possible way for the sexes to coexist: strict separation.”

A more familiar explanation for French antagonism to the facial veil is historical and political: the deep-rooted French fear, resentment and rejection of the “other” — the immigrant, the invader, the potential terrorist or abuser of human rights who eats, drinks, prays and dresses differently, and refuses to assimilate in the French way.....

Meanwhile, France will remain France — the land where the uncovered body is celebrated. Billboards and posters on Paris streets regularly feature naked breasts and buttocks.

Can Faith-Based Groups Receiving Government Funds Have Discriminatory Voting Policies?

A New York Times report on Friday raises the question of what sort of anti-discrimination rules apply to faith-based social service agencies that receive federal government funding. In Brooklyn, New York's Crown Heights-- an area populated mostly by Hasidic Jews-- the Crown Heights Jewish Community Council has received millions of dollars in government grants over the years to offer a variety of social services.  However, the Council's rules impose strict limits on who can vote for leaders of the Council.  To vote, one must be Jewish and a religiously observant residents of Crown Heights; must be married, previously married or at least 30 years old; and must be male.  Now one Crown Heights resident, Eliyahu Federman, is challenging the Council's disenfranchisement of women. The Council's executive director says that the entire Council structure, including voting policy, is under review. The next elections are in 2013.

Reform Demands In Egypt Hit Al-Azhar University

MEMRI on Friday published an extensive analysis of how the protests for reform and change in Egypt are impacting Al-Azhar University, the most important center of Sunni Muslim study. Critics are claiming that Al-Azhar is too too identified with the Mubarak regime and that it is allowing political Islam to take over the revolution in Egypt instead of providing leadership for change.

Statements Made In Church Annulment Proceedings Are Absolutely Privileged

Purdum v. Purdum, 2011 WL 1430279 (Dist. Ct. Kan., April 11, 2011) (available on Westlaw), involved a defamation claim by plaintiff against his former wife alleging that in the course of ecclesiastical annulment proceedings she submitted a written statement to the Catholic Archdiocese alleging, among other things, that plaintiff "was diagnosed bipolar." The court denied a request by the Archdiocese to intervene as a party to argue that the court lacks jurisdiction over plaintiff's claim, but the court permitted the Archdiocese to submit issues as an amicus curiae. The court rejected the Archdiocese's claim that it should dismiss the case under the "church autonomy doctrine", because that applies only when there is a challenge to action by a church that would involve courts in deciding matters of faith, doctrine or internal governance. However, the court concluded that:

Nonetheless, the Free Exercise Clause of the First Amendment does apply in this case to protect the defendant's confidential communications with her church or its representatives.... [I]n this case, the statement is absolutely privileged as made pursuant to the defendant's First Amendment right to Free Exercise of her religion..... To hold otherwise, would require individuals to defend themselves in civil court for statements made during required religious proceedings, even if the statements are later determined to be true.

[Thanks to Eugene Volokh via Religionlaw for the lead.] 

Today Religion Clause Blog Is 6 Years Old !

Religion Clause is 6 years old today. Thank you to all my readers who have been on board for many years and to the many newer visitors as well. If you continue to find Religion Clause useful, please recommend it to others who are also interested in church-states and religious liberty issues.

Sometime next month, Religion Clause will record its 1 millionth visitor. All of you have contributed to the success of the blog. Many who are professionally involved in church-state and religious liberty issues read the blog; and so do others who are online because of personal interest in the subject areas covered. The blog continues to be committed to religiously and ideologically neutral reporting of legal and public policy developments. I believe this is a unique niche in the blogosphere.

My goal is to keep the posts reasonably short, but provide extensive links, particularly to primary source material. I welcome your e-mails on leads for blog posts. I also urge you to e-mail me with any corrections that are called for in postings-- accuracy is an important goal on Religion Clause. You can reach me at religionclause@gmail.com. I plan to maintain the same format for the blog in the upcoming year.  However I welcome e-mails from all of you suggesting changes or different directions you would find useful or interesting.

Recent Prisoner Free Exercise Cases

In Pelzer v. McCall, 2011 U.S. Dist. LEXIS 38349 (D SC, April 6, 2011), a South Carolina federal district court rejected a Muslim inmate's request for a preliminary injunction. The inmate claimed that the Establishment Clause was violated by the prison Chaplain's Office distributing to him a newsletter containing references to Christianity.

In Anderson v. Arizona Department of Corrections, 2011 U.S. Dist. LEXIS 39352 (D AZ, April 1, 2011), an Arizona federal district court dismissed an inmate's claim that his free exercise rights were violated because he was not allowed to possess hardcover books and he cannot find his religious books in soft cover editions.

In DeVon v. Diaz, 2011 U.S. Dist. LEXIS 39393 (ED CA, April 1, 2011), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that his rights under the 1st Amendment and RLUIPA were infringed when he was denied the right to eat kosher food and was denied fellowship.

In Annabel v. Caruso, 2011 U.S. Dist. LEXIS 39790 (WD MI, April 12, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 39788, Jan. 18, 2011) and dismissed an inmate's claims that his rights under the 1st Amendment and RLUIPA were violated when prison authorities refused to provide him with a Hebrew calendar or relay to him the dates of the 2008 Fall Holy Days. However plaintiff was permitted to proceed on his claim for grape juice and unleavened bread during Passover.

In Hare v. Hayden, 2011 U.S. Dist. LEXIS 40683 (SD NY, April 14, 2011), a New York federal district court rejected an inmate's claim that her removal from the position of clerk to the prison's Catholic chaplain was retaliation for her complaints about another chaplain's removing Catholic religious items.  The court also rejected various claims regarding the suspension of certain Catholic religious programs and occassional interference with plaintiff's staying in the chapel for Mass.

In Myers v. Raemisch, 2011 U.S. Dist. LEXIS 40373 (ED WI, April 5, 2011), a Wisconsin federal district court permitted an inmate who is an initiate into the Hermetic Order of the Golden Dawn was allowed to move ahead with his suit seeking permission to obtain a particular tarot card deck that was designed exclusively for use by believers of the Golden Dawn, as well the tarot's companion book. Department of Corrections  rules permitted only a different tarot.

9th Circuit: Contract Prison Chaplains Are Not "State Actors"

In Florer v. Congregation Pidyon Shevuyim, (9^th Cir., April 15, 2011), the U.S. 9^th Circuit Court of Appeals held that a Jewish organization that contracted with the Washington State Department of Corrections to furnish Jewish chaplains for prisoners was not a “state actor” for purposes of 42 USC 1983 or RLUIPA when it denied an inmate a Torah, a Jewish calendar and a visit by a rabbi on the ground that the inmate was not Jewish. The court concluded that the organization’s policy to furnish services only to inmates that are Jewish according to its criteria is its own policy, not that of the state. Nor was the organization or its chaplain carrying out a “public function” when they denied religious materials and services to plaintiff.  The court also rejected plaintiff’s “joint action” argument. Thus the court dismissed plaintiff's lawsuit since private parties not acting on behalf of or jointly with the state are not liable under Sec. 1983 or RLUIPA.

10th Circuit Stays District Court Orders In FLDS Trust Case

Friday there was yet another development in Fundamentalist Church of Jesus Christ of Latter Day Saints v. Lindberg, this time in response to an emergency motion filed by state judge Denise Lindberg.  Attempting to defuse the battle between state and federal courts over what to do with the FLDS United Effort Plan Trust (see prior posting), the 10th Circuit Court of Appeals issued a stay of both the preliminary injunction issued by the federal district court that handed the trust back to the FLDS Church and the district court order issued to state judge Denise Lindberg to show cause why she should not be held in contempt for defying the federal court order. The 10th Circuit ordered that no action should be taken to implement or enforce either of these. (Full text of stay order). All the parties were invited to brief the issues by April 22, and the FLDS Church was instructed to cover at least the issues of laches, res judicata, judicial immunity, and the propriety of injunctive and/or declaratory relief against Judge Lindberg. The Deseret News reports on the 10th Circuit's action.

UPDATE: AP reports that on April 27, the 10th Circuit extended the stay while the appeal is pending.

Israeli Rabbi Seeks Imam's Help In Preventing Sale Of Leavened Products During Passover

With the Jewish holiday of Passover approaching-- it begins Monday night-- Israeli authorities are again faced with issues of enforcing the country's law against businesses publicly displaying leavened products (hametz) for sale or consumption. (See prior related posting.) Apparently in recent years, the northern Israeli city of Akko has become a center for non-religious Jews seeking to buy hametz.  The ban on selling hametz does not apply to Akko's mostly-Arab Old City.  YNet News today reports that Akko's chief rabbi, Yosef Yashar, has approached the influential imam of the city's al-Jazar Mosque, Sheikh Samir Asi, and asked him to attempt to to get Arab business owners to voluntarily refuse to sell hametz to Jews during Passover. The sheikh says he will ask business owners to honor the rabbi's request, but he is not certain how many will comply.

Hungary's Controversial New Constitution To Be Voted On Monday

In Hungary, civil society groups have called protests for today to express their opposition to the draft new Constitution (summary of changes) for the country. According to Reuters, the new Constitution has been a long-held goal of the Fidesz Party that last year won a majority of the seats in Hungary's National Assembly. The Party says that the new Constitution, replacing Hungary's Communist-era document, will complete the democratization process that began in 1989.  Critics of the new document, whose text was released only last month, say it reflects Christian and nationalist thinking. A European Parliament group says that while the new document prohibits discrimination on the basis of race, sex, disability, language, religion, political views, national or social origins, ownership of assets, or birth, it does not ban discrimination on the basis of sexual orientation or gender identity. Among the other controversial provisions are ones that protect the life of the fetus beginning at conception and a provision that defines marriage as the union of a man and a woman. It is expected that the National Assembly will approve the new constitution on Monday and that it will come into force on January 1, 2010. Here is the full text of the proposed Constitution in Hungarian.