Navy Chaplains May Perform Same-Sex Marriages

Navy Times reported yesterday that Navy Chief of Chaplains Rear Adm. Mark Tidd has issued a memo allowing Navy chaplains to officiate at same-sex marriage and civil union ceremonies. The memo was issued as part of the updated training guidance to implement the repeal of "Don't Ask, Don't Tell."  The memo reads in part:

Consistent with the tenets of his or her religious organization, a chaplain may officiate a same-sex, civil marriage: if it is conducted in accordance with a state that permits same-sex marriage or union; and if that chaplain is, according to the applicable state and local laws, otherwise fully certified to officiate that state’s marriages.... [I]f the base is located in a state where same-sex marriage is legal, then base facilities may normally be used to celebrate the marriage. This is true for purely religious services (e.g., a chaplain blessing a union) or a traditional wedding (e.g., a chaplain both blessing and conducting the ceremony).

House Armed Services Committee Chairman Todd Aikin says that the memo violates the Defense of Marriage Act.

Malaysian Government Investigating Reports That Some Want Christianity To Be Another Official Religion

In Malaysia, Bernama reported yesterday that Prime Minister Datuk Seri Najib Tun Razak has ordered an investigation of reports that a newspaper, Utusan Malaysia, carried a front page report last Saturday quoting two blogs that said a meeting had taken place between Christian leaders who want Christianity to be an additional official religion in Malaysia. According to Bernama, Home Minister Datuk Seri Hishammuddin Tun Hussein "said the report was very sensitive and all quarters should know that it was not wise to raise such mater for it could lead to chaos and anxieties among the people." Malaysia's constitution (Art. 3, Sec. 1) provides: "Islam is the religion of the Federation; but other religions may be practised in peace and harmony in any part of the Federation."

The IANS report on the matter is more dramatic.  Carried by the Mangalorean, it says a blog claimed that the opposition Democratic Action Party wants to elect a Christian prime minister and turn the country into a Christian country. DAP says the report is a lie.

US-China Dialogue Is Occasion For Petition By China House Churches

Yesterday and today in Washington, the State Department and Treasury Department are hosting the third joint meeting of the US-China Strategic and Economic Dialogue. The U.S. Commission on International Religious Freedom last month urged the State Department to raise religious freedom issues during the conference. Christian Post reported yesterday the house churches in China are using the occasion to, for the first time in 60 years, petition China's legislature to guarantee the religious freedom of the country's largest house church, the Shouwang Church. Last month, 36 people attempting to attend an outdoor Easter service at the church were arrested. (See prior posting.)

Hasidic Paper Creates Stir For Editing Hillary Clinton Out of Famous Photo

In a strict reading of Jewish laws on modesty, the Hasidic newspaper Der Tzitung, published in Brooklyn, has a policy that it will not publish photos of women.  The Washington Post reported yesterday on the controversy that this has stirred when the paper altered the now-famous photo of Hillary Clinton, the President and others in the White House situation room watching the progress of the mission that killed Osama bin Laden. The paper's version (shown by Failed Messiah blog) removed Hillary Clinton and the only other woman in the photo, Audrey Tomason. It turns out that this violates the White House terms distributed with the photo that: "The photograph may not be manipulated in any way...." Der Tszitung has issued a statement (full text from Washington Post) reading in part:

The First Amendment to the Constitution guarantees freedom of religion.... In accord with our religious beliefs, we do not publish photos of women, which in no way relegates them to a lower status. Publishing a newspaper is a big responsibility, and our policies are guided by a Rabbinical Board. Because of laws of modesty, we are not allowed to publish pictures of women, and we regret if this gives an impression of disparaging to women, which is certainly never our intention. We apologize if this was seen as offensive.

India's Supreme Court Stays Division of Land At Disputed Holy Site

According to Bar and Bench, India's Supreme Court yesterday stayed an order issued last year by the Allahbad High Court that divided a sacred site claimed by both Hindus and Muslims among three separate groups, two Hindu and one Muslim. At issue is site in the town of Ayodhya that Hindus say the site was the birthplace of Lord Ram and was the location of an ancient temple. However the Babri Masjid mosque was constructed on the site sometime between the 16th and 18th century. In 1992, a Hindu mob partially destroyed the mosque, and widespread violence followed. The Supreme Court ordered that there should be no religious activity on 67 acres adjacent to the site acquired by the central government.  However the status quo is to be maintained as to the rest of the land, presumably while the Supreme Court considers the case.  The Supreme Court questioned the action of the Allahbad High Court in partitioning the land when none of the parties had asked for that type of order.

Judge Reverses Himself, Allows Kufi To Be Worn In Court

The Atlanta Journal Constitution reported yesterday that a Georgia state judge has reversed his previous decision (see prior posting) that barred a Muslim man from entering his court room because the man wore a kufi.  Henry County Judge James Chafin wrote: "The Court finds through its own research that there is a basis in the Quran for both men and women to cover their heads as a religious observance." Previously the court had asked for proof that Muslim doctrine requires this. Defendant Troy "Tariq" Montgomery will now appear in court May 16 to defend a speeding ticket.

9th Circuit: Trial Court Must Reconsider Permissive Intervention By Pastor Into Tax Code Challenge

In Freedom from Religion Foundation v. Geithner, the U.S. 9th Circuit Court of Appeals agreed with a federal district court that Pastor Michael Rodgers, a Sacramento area clergyman, has not shown he is entitled to intervene as of right as a defendant in a challenge to the constitutionality of provisions in the federal and California tax codes that allow clergy to exclude from income the parsonage allowance furnished to them. Rodgers argues that the federal government inadequately represents his interest in assuring that the tax provision is upheld. However the appeals court remanded the case to the district court for consideration of whether it should grant permissive intervention, finding the district court had applied incorrect legal criteria in initially denying such intervention. Courthouse News Service reports on the decision.

Federal Lawsuit Over Zoning For Yehsiva In Airmont Is Settled

The U.S. Attorney's Office for the Southern District of New York announced yesterday the settlement of a lawsuit it filed in 2005 under RLUIPA and the federal Fair Housing Act against the Village of Airmont in Rockland County, New York over its refusal to permit a Hasidic Jewish congregation to build a yeshiva with student housing. Airmont's zoning code prohibits residential student housing anywhere in the village while permitting a variety of other group residential uses. The lawsuit charged that this imposed a substantial burden on the free exercise of religion by Lavier Yakov congregation and amounted to the denial of housing based on religion. Under the consent decree entered in the case, Airmont has agreed to amend its zoning code by Oct. 15 to permit educational institutions with accessory housing and to permit construction of the yeshiva. The village will also pay a $10,000 civil penalty and has agreed to other steps to assure legal compliance in the future. The Lower Hudson Journal News reports that this is the second zoning-related civil rights lawsuit against the village since its founding in 1991. The earlier lawsuit charged that the village was incorporated to prevent Orthodox Jews from moving into the community through zoning laws that prohibited home synagogues. (See prior related posting.)

Article Analyzes Salifist-Coptic Clashes In Egypt

An article in today's Wall Street Journal gives context to the recent deadly clash (see prior posting) between Salafist Muslims and Coptic Christians. Here is an excerpt from the analysis:

The rise in sectarianism has appeared in parallel with an increasingly vocal Salafi movement—a fundamentalist Islamic ideology that tends to view non-Muslims as less deserving of full civil rights in an idealized Muslim society.

On some level, the violence is an effort to intimidate Christians whose protection by the regime of former President Hosni Mubarak was perceived by many as preferential treatment, said Hossam Bahgat, director of the Egyptian Initiative for Personal Rights, a human-rights group that has been monitoring sectarian violence in Egypt....

Despite sharing a few common political goals, such as the desire to see Sharia law incorporated into the Egyptian legal system, the Salafists' fundamentalist outlook is distinct from the Brotherhood's merely conservative ideology.

Strict Salafis consider more moderate Islamists, such as the Brotherhood, as "innovators" whose practice of the faith includes new or foreign concepts that were introduced into the religion long after the Prophet's death.

Court Denies TRO In Establishment Clause Challenge To Tennessee School System Practices

In ACLU-TN v. Sumner County Board of Education, 2011 U.S. Dist. LEXIS 47977 (MD TN, May 3, 2011), a Tennessee federal district court rejected the ACLU's emergency motion for a temporary restraining order in a case alleging that the Sumner County schools violate the Establishment Clause by a series of practices that promote and endorse religion. (See prior posting.) The court found that the only imminent activity posing an issue is a day-long Teens Against Alcohol and Tobacco Use program for 6th graders scheduled to be held in a Baptist church. The court concluded that this program has a secular purpose and that there are no religious symbols or imagery in the room of the church that will be used for this particular program.

Recent Articles and Book Of Interest

From SSRN:

• Mark Koyama, The Political Economy of Expulsion: The Regulation of Jewish Moneylending in Medieval England, (Constitutional Political Economy, Vol. 21, No. 4, pp. 374-406, 2010).
• Christopher J. Eberle and Capt. Rick Rubel, Religious Conviction in the Profession of Arms, (June 15, 2010).
• Muhammad Munir, Compatibility between Anti-Terrorism Legislation and Shari‛a, (May 1, 2011).
• Sahir F. Aziz, Caught in a Preventive Dragnet 10 Years Later: Selective Counterterrorism Against Muslims, Arabs, and South Asians, (The Journal of Race/Ethnicity: Multidisciplinary Global Contexts, Forthcoming).
• Clark B. Lombardi, Can Islamizing a Legal System Ever Help Promote Liberal Democracy?: A View from Pakistan, (University of St. Thomas Law Journal, Vol. 7, No. 3, 2010).
• Steven D., Jamar Religious Use of Copyrighted Works after Smith, RFRA, and Eldred, (Cardozo Law Review, Vol. 32, No. 5).
• Linda C. McClain, Religious and Political Virtues and Values in Congruence or Conflict?: On Smith, Bob Jones University, and Christian Legal Society, (Cardozo Law Review, Vol. 32, No. 5, pp. 1959-2007, 2011).

From SmartCILP and Alliance Alert:

• Kenneth B. Orenbach, The Religiously Distinct Director: Infusing Judeo-Christian Business Ethics into Corporate Governance, 2 Charlotte Law Review 369-443 (2010).
• Jessica L. Thornhill, Clear As Mud: Pleasant Grove City V. Summum And Riding The Undefined Line Between Government Speech And Private Speech In A Public Forum, 30 Mississippi College Law Review 121 (2011).

Recent Book:

• Douglas Laycock, Religious Liberty, Volume Two: The Free Exercise Clause, (Eerdmans, April 15, 2011), described in press release.

Jesuit Priest To Be Next House Chaplain

According to AP and a Roll Call reports last Friday, House Speaker John Boehner will nominate a Catholic priest who teaches at a Jesuit high school in Portland, Oregon to be the next Chaplain of the House of Representatives.  The choice was made in consultation with House Minority Leader Nancy Pelosi.  Rev. Patrick J. Conroy wll become the second Catholic priest to serve as House chaplain, succeeding Fr. Daniel Coughlin who retired last month. The full House of Representatives will vote on the nomination later this month.  Conroy previously served as chaplain at Georgetown University. [Thanks to Alliance Alert for the lead.]

Britain's Religion or Belief Regulations Extended To Belief In Higher Purpose of Public Service Broadcasting

Britain's Employment Equality (Religion or Belief) Regulations 2003 (Sec. 2) include "philosophical belief" in the definition of religion or belief. Employment Tribunals continue to expand the meaning of philosophical belief.  Previous cases have invoked the provision to bar discrimination on the basis of an employee's anti-hunting views, or an employee's belief in man-made climate change. Now, according to today's London Mail, a Birmingham employment tribunal has held that a BBC employee's belief that public service broadcasting has the higher purpose of promoting cultural interchange and social cohesion is also a philosophical belief protected by the Equality Regulations.

Attorney General Tells Immigration Appeals Board To Reconsider Deportation of Partner In Civil Union

In Matter of Paul Wilson Dorman, (Atty. Gen., April 26, 2011), Attorney General Eric Holder vacated a decision of the Board of Immigration Appeal that had upheld the deportation of a man who had entered a same-sex civil union in New Jersey with a U.S. citizen. Holder, implementing the Administration's previously announced conclusion that the Defense of Marriage Act is unconstitutional (see prior posting), ordered the BIA to:

determine whether and how the constitutionality of DOMA is presented in this case, including, but not limited to: 1) whether respondent’s same-sex partnership or civil union qualifies him to be considered a “spouse” under New Jersey law; 2) whether, absent the requirements of DOMA, respondent’s same-sex partnership or civil union would qualify him to be considered a “spouse” under the Immigration and Nationality Act....

AP reports on the decision. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Excercise Cases

In Jihad v. Fabian, 2011 U.S. Dist. LEXIS 47007 (D MN, May 2, 2011), a Minnesota federal district court dismissed a Muslim inmate's complaints that he was not permitted to pray outside of his cell, that religious groups are permitted only one special holiday meal per year, that he could wear only state-issued headwear rather than his kufi outside his cell and the chapel, that an outside volunteer must be present at all religious services and that religious services are cancelled on public holidays. The court held, however, that sufficient factual issues remain for plaintiff to move ahead on his challenge to the refusal to provide him with halal meals. The magistrate's recommendations in the case are at 2011 U.S. Dist. LEXIS 46930, February 17, 2011.

In Blount v. Wright, 2011 U.S. Dist. LEXIS 46543 (WD VA April 28, 2011), a Virginia federal district court rejected a free exercise and RLUIPA claim by an inmate who alleged that he was forced to eat non-kosher diet loafs for a week after he was falsely charged with disobeying a direct order regarding return of his lunch tray.

In Porter v. Wegman, 2011 U.S. Dist. LEXIS 46660 (ED CA, April 22, 2011), a California federal magistrate judge dismissed, with leave to amend, claims by a member of the House of Yaweh that authorities failed to respond to their request for meals to observe Passover and Feast of Unleavened Bread. He also complained he was placed on the vegetarian, rather than kosher, diet.

In E.W. v. New Jersey Department of Corrections, 2011 N.J. Super. Unpub. LEXIS 1104 (NJ App., May 3, 2011), a New Jersey state appellate court concluded that Department of Corrections programs are now wholly secular.  The Department had removed a satellite dish that had been given to it by Jehovah's Witnessses and had removed religious content from its treatment materials.

In Blaylock v. Guarini, 2011 U.S. Dist. LEXIS 47576 (ED PA, May 4, 2011), a Pennsylvania federal district court dismissed a Muslim inmate's claims challenging the amount of food served to break the Ramadan fast, threats to cancel Ramadan services because inmates were not attending, shortening of Jum'ah services and the serving to Muslim inmates of cereal bars that contained pork products at the prison where he was formerly incarcerated.

In Bodie v. Tipten, 2011 U.S. Dist. LEXIS 47466 (D AZ, April 27, 2011), an Arizona federal district court permitted a Navajo inmate to proceed with his complaint that his rights under the 1st Amendment and RLUIPA were violated when officials interfered with his attempt to keep his hair that falls out to send to his niece for it to be burned with medicinal herbs according to Navajo religious traditions.

In Budge v. Arpaio, 2011 U.S. Dist. LEXIS 47470 (D AZ, April 26, 2011), an Arizona federal district court dismissed an inmate's claim that he was denied religious services on several occassions and was denied doctor-approved religious meals.

190 Face Military Trials In Egypt After Deadly Muslim-Coptic Violence

In Egypt, 190 people have been detained and will face military trials in Egypt's Supreme Military Court after Muslim-Christian violence in Cairo killed 10 and wounded 186. BBC News reports that the violence began after several hundred Salafist Muslims gathered outside the Coptic Christian Saint Mena Church to protest a rumor that a Christian woman was being held there against her will because she had married a Muslim man and wanted to convert. After a repelled attempt earlier in the day to storm the church, Saint Mena's and another church along with some homes were set on fire. Gunfire was also heard.  A statement by Egypt's Supreme Military Council said that a committee will assess the damage and restore the damaged property.  The Council, in a statement published on its Facebook page, warned of severe dangers facing the country during the current transition period.

DHS Investigating Border Agents' Treatment of Muslims

In response to complaints filed in March with the Department of Justice and Department of Homeland Security, the DHS office of Civil Rights and Civil Liberties is conducting an investigation into the conduct of federal agents at several at several US-Canada border crossings in Michagan.  According to the Detroit Free Press on Saturday, allegations cover mistreatment of Muslims because of their background or appearance. Complaints include "repeated handcuffing, brandishing of weapons, prolonged detentions, invasive and humiliating body searches at the border, and inappropriate questioning that pertains to religion and religious practices."

Men In Muslim Dress Pulled From Flight; Delayed In Reaching Conference On Anti-Islam Bias

Two men wearing traditional Muslim clothing were pulled off an Atlantic Southeast Airlines flight from Memphis (TN) to Charlotte (NC) on Friday for re-screening after the pilot was uncomfortable with their being on board. The Christian Science Monitor reports that the two-- an adjunct professor of Arabic at the University of Memphis and an imam at the Islamic Association of Greater Memphis-- ironically were on their way to a conference on Islamophobia and anti-Muslim bias. They were ultimately delayed nine hours after their plane, which had already left the gate, returned and the men were refused reboarding even after their second screening.

Florida Legislature Submits Repeal of Blaine Amendment To Voters

On Friday, the Florida state Senate passed HJR 1471-- a joint resolution previously passed by the state House of Representatives that will submit to voters next year a proposal to repeal the state constitution's Blaine Amendment. The Blaine Amendment currently bars state financial support of any religious denomination or institution.  The proposed amendment will remove the current language from Florida's Constitution and will add the following:

Except to the extent required by the First Amendment to the United States Constitution, neither the government nor any agent of the government may deny to any individual or entity the benefits of any program, funding, or other support on the basis of religious identity or belief.

HJR 1471 (full text) includes 3 pages of "Whereas" clauses that, among other things, trace the original Blaine Amendment to anti-Catholic bigotry and lament the restictions now imposed on state funds going to religiously affiliated hospitals, schools and adoption agencies. The Miami Herald reports on the legislature's action. [Thanks to David L. Barkey for the lead.]

Group Opposes USAID's Proposed Expansion of Funding For Religious Structures

As Monday's deadline for comments approaches, the Anti-Defamation League announced that yesterday it had submitted a letter (full text) in opposition to a little-noticed proposal issued by by the U.S. Agency for International Development in March.  The proposal on Participation by Religious Organizations in USAID Programs would expand the extent to which US AID funds could be used for the acquisition, construction or rehabilitation of buildings that are devoted to inherently religious activities.  The existing rule, among other things, bars use of AID funds for sanctuaries or chapels that a recipient organization uses as its principal place of worship.  The proposed amendment provides that:

USAID funds may be used for the acquisition, construction, or rehabilitation of structures that are used, in whole or in part, for inherently religious activities so long as the program ... has a secular purpose, is made generally available to a wide range of organizations and beneficiaries which are defined without reference to religion, has the effect of furthering a development objective, the criteria upon which structures are selected ... are religiously neutral, and the selection criteria are amenable to neutral application. Examples ... include ... rehabilitation or reconstruction programs ... following a natural or manmade disaster; rehabilitation or reconstruction programs for schools; rehabilitation or reconstruction of structures that are architectural, artistic, cultural, or historical landmarks for cultural or historical preservation; and rehabilitation or reconstruction programs to promote tourism or other related economic activities.

The ADL comments raised concerns that the proposed rule could lead to extensive federal funds being used to build houses of worship. [Thanks to Michael Lieberman for the lead.]