Recent Articles and Books of Interest

From SSRN:

• Robin Bradley Kar, The Two Faces of Morality: How Evolutionary Theory Can Both Vindicate and Debunk Morality (with a Special Nod to the Growing Importance of Law), (Nomos: Evolution and Morality, New York University Press, 2012).
• William P. Marshall, Smith, Christian Legal Society, and Speech-Based Claims for Religious Exemptions from Neutral Laws of General Applicability, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Laura Underkuffler, Odious Discrimination and the Religious Exemption Question, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Andrew M. M. Koppelman, How Shall I Praise Thee? Brian Leiter on Respect for Religion, (San Diego Law Review, Vol. 47, No. 4, 2010).
• Matthew L. M. Fletcher and Peter S. Vicaire, Indian Wars: Old and New, (MSU Legal Studies Research Paper No. 09-11, May 4, 2011).
• Christopher C. Lund, Exploring Free Exercise Doctrine: Equal Liberty and Religious Exemptions, (Tennessee Law Review, Vol. 77, p. 351, 2010).
• Jessie Hill, Whose Body? Whose Soul? Medical Decision-Making on Behalf of Children and the Free Exercise Clause Before and After Employment Division v. Smith, (Cardozo Law Review, Vol. 32, p. 1857, 2011).
• Marci A. Hamilton, Employment Division v. Smith at the Supreme Court: The Justices, the Litigants, and the Doctrinal Discourse, (Cardozo Law Review, Vol. 32, No. 5, 2011).
• Austin Caster, 'Charitable' Discrimination: Why Taxpayers Should Not Have to Fund 501(c)(3) Organizations that Discriminate Against LGBT Employees, (May 7, 2011).

From SmartCILP:

• Nicole McLaughlin, Spectrum of Defamation of Religion Laws and the Possibility of a Universal International Standard, 32 Loyola Los Angeles International and Comparative Law Review 395-426 (2010).

Recent Books:

• Syed Iqbal Zaheer (ed.), An Educational Encyclopedia of Islam, (East West Educational Tools, 2010), reviewed in OnIslam.
• Leila Ahmed, A Quiet Revolution--The Veil’s Resurgence, from the Middle East to America, (Yale Univ. Press, April 2011).

Court Rejects Challenge To Religious Workers Visa Rules

In Ruiz-Diaz v. United States, 2011 U.S. Dist. LEXIS 50433 (WD WA, May 10, 2011), a Washington federal district court rejected a challenge to immigration rules that treat religious workers applying to adjust their immigration status to become permanent residents differently from those in various other employment-based preference categories. Special immigrant visa holders, including religious workers, are precluded from filing their own form I-485 application until U.S. Citizenship and Immigration Service has approved their employer's Form I-360 petition on their behalf.  This creates a risk of the alien being treated as unlawfully present in the country-- a designation that is triggered if the I-485 is not on file before the alien's original 5-year visa period expires. Other aliens may file a Form I-485 concurrently with an employer's Form I-360. The court rejected plaintiffs' class action RFRA and Free Exercise claims, finding that plaintiffs had not shown a substantial burden on their free exercise of religion. It rejected plaintiffs' equal protection claim, finding that the rule was rationally related to deterring fraud. The court also rejected plaintiffs' due process challenge.

Recent Prisoner Free Exercise Cases

In Mack v. Yost, (3d Cir., May 6, 2011), the 3rd Circuit reversed the district court's dismissal of Muslim prisoner Charles Mack's free exercise and RLUIPA claims. Mack, who worked in the prison commissary, alleged that a corrections officer placed a sign reading "I Love Bacon" on Mack's back, and two days later said to Mack that "there is no good Muslim, except a dead Muslim." Mack alleged he was fired from his commissary job for complaining about the officer's actions. AP reports on the decision.

In Thomas v. Croft, 2011 U.S. Dist. LEXIS 48442 (SD OH, May 4, 2011), an Ohio federal magistrate judge recommended denial of a motion for summary judgment filed by plaintiff, a Seventh Day Adventist prisoner, because there are genuine issues of material fact as to whether a corrections officer who field a misconduct report was aware that plaintiff's religious beliefs conflicted with his working after sunset on Friday and because it is unclear whether plaintiff was actually denied a religious accommodation.

In Massenburg v. Adams, 2011 U.S. Dist. LEXIS 48633 (ED VA, May 5, 2011), a Virginia federal magistrate judge dismissed a lawsuit brought by a Hebrew Israelite prisoner who sought damages of over $2 million per defendant, claiming that he was required to work on July 22, 2006, the Sabbath of his religion.

In Johnson v. Bradford, 2011 U.S. Dist. LEXIS 48719 (D NJ, May 5, 2011), a New Jersey federal district court dismissed a claim by a Muslim prisoner that his free exercise and RLUIPA rights were violated when the coordinator of the prison's NuWay Program made mocking remarks about Islam and mimicked an Arabic prayer.

In Hall v. Hedgpeth, 2011 U.S. Dist. LEXIS 48588 (ND CA, May 4, 2011), a California federal district court allowed an inmate to move ahead with his claim against the prison chaplain and resource manager seeking religious services, religious materials and chapel study time for members of the Reformed Christian or Calvinist religion separate from the non-denominated Protestant services and study. The case was referred to the Pro Se Prisoner Settlement Program.

In Saldana v. Borem, 2011 U.S. Dist. LEXIS 48624 (SD CA, May 3, 2011), a California federal district court permitted an inmate to move ahead with his complaint that authorities had confiscated his "cultural/ religious art."

In Handy v. Diggins, 2011 U.S. Dist. LEXIS 48784 (D CO, May 6, 2011), a Colorado federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 48780, March 23, 2011), and permitted a Muslim inmate who sought kosher meals in jail where he was previously held to move ahead with his punitive damage claim and permitted him to file some amendments to his complaint.  A number of his claims-- including those for compensatory damages and injunctive relief-- were dismissed.

In St. Clair v. Moon, 2011 U.S. Dist. LEXIS 48941 (WD WA, May 6, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 49089, March 29, 2011) and dismissed a former inmate's claim that his religious rights were violated when he was transferred to another unit for refusing on religious grounds to participate in a Treatment Community for mentally ill offenders. He raised religious issues only after he was cited for other infractions of TC rules.

In Calderon-Silva v. Uribe, 2011 U.S. Dist. LEXIS 49266 (CD CA, May 4, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 49270, March 10, 2011) and  dismissed a prisoner's claim that he was required, in violation of the Establishment Clause, to attend a faith-based AA and NA program as a condition of parole.

In Rivera v. Hartley, 2011 U.S. Dist. LEXIS 50028 (ED CA, May 9, 2011), a California federal magistrate judge recommended denying an inmate's claim in a habeas corpus proceeding that he was required by state officials to participate in a faith-based AA/NA program as a condition of parole.

Boehner Addresses Catholic University's Commencement Without Mentioning Protest Letter From Catholic Faculty

CNN reports that House Speaker John Boehner delivered the commencement speech at Catholic University in Washington, D.C. yesterday without mentioning a protest letter sent to him earlier last week by 70 faculty members from Catholic University and other Catholic colleges around the country.  The letter (full text) criticizes cuts in aid for the poor in the 2012 budget passed by the House with Boehner's support. It reads in part:

It is good for Catholic universities to host and engage the thoughts of powerful public figures, even Catholics such as yourself who fail to recognize (whether out of a lack of awareness or dissent) important aspects of Catholic teaching. We write in the hope that this visit will reawaken your familiarity with the teachings of your Church on matters of faith and morals as they relate to governance.

Mr. Speaker, your voting record is at variance from one of the Church’s most ancient moral teachings. From the apostles to the present, the Magisterium of the Church has insisted that those in power are morally obliged to preference the needs of the poor. Your record in support of legislation to address the desperate needs of the poor is among the worst in Congress. This fundamental concern should have great urgency for Catholic policy makers. Yet, even now, you work in opposition to it.

The 2012 budget you shepherded to passage in the House of Representatives guts long-established protections for the most vulnerable members of society.

Florida Imam Arrested On Terrorism Charges As He Ends Prayers In His Mosque

The Miami Herald describes Saturday's arrest of a 76-year old imam at Miami, Florida's Flagler Mosque on charges of conspiring to transfer funds to supporters of the Pakistani Taliban-- a designated foreign terrorist organization operating in Pakistan. An indictment (full text) handed down May 12 charges Hafiz Muhammad Sher Ali Khan with conspiring with four family members and a fifth Pakistani man to funnel money through U.S. banks and wire transfer services to the Taliban to use to purchase guns and sustain militants and their families. It also charges that Khan founded a madrassa in Pakistan that shelters Pakistani Taliban. (Justice Dept. Press Release). In arresting Khan, FBI agents surrounded his mosque. The agents, who had removed their shoes, waited for morning prayers to end before entering the mosque and making the arrest.

Huckabee Will Not Seek Republican Presidential Nomination

The New York Times reports that former Arkansas Governor Mike Huckabee announced on his Fox News program tonight that he will not seek the Republican nomination for President. (Video of Huckabee's announcement.) Huckabee, an ordained Baptist minister, said that his decision was ultimately a spiritual one, and that it was unthinkable for him to undertake a run "apart from an inner confidence that I was undertaking it with God’s full blessing." According to the Times report: "Had Mr. Huckabee entered the race, he would have been filling a perceptible void in the Republican field by becoming the presumed candidate of evangelicals, whose social issues have been largely swept aside as both parties focus most acutely on the economy and government spending."

White House Issues New Guide on Opportunities For Faith-Based Groups

The White House announced last Wednesday that its Office of Faith-Based and Neighborhood Partnerships has produced a new publication, Partnerships for the Common Good: A Partnership Guide for Faith-Based and Neighborhood Organizations. The new 74-page Guide is intended to give local faith-based organizations and community leaders a list of opportunities they can pursue in partnering with governmental agencies to meet a variety of local needs.

Two Arrested In Plot To Bomb New York Synagogues

In New York City yesterday, the District Attorney's Office for New York County announced the arrest of two men charged with conspiracy to commit terrorism and with weapons and hate crimes offenses in a plot to bomb synagogues in Manhattan. According to the press release, the defendants: "discussed learning to make bombs and planned visits to Manhattan’s largest synagogues, intending to disguise themselves as Jewish worshippers, attend services at a synagogue and, while pretending to pray, leave a bomb in the synagogue." The complaint (full text) outlines the six-month under cover operation targeting the two who were immigrants from Algeria and Morocco respectively.

Bangladesh Supreme Court Allows Fatwas, But Excludes Enforcement Measures

Bangladesh's Supreme Court yesterday reversed a lower court's ruling that had banned the issuance of fatwas (religious edicts) by village councils (shalish). (See prior related posting.) However the Supreme Court's decision severely limits the issuance and enforcement of fatwas.  As reported by AFP, Gulf News and The Financial Express, the Supreme Court, in a split opinion, ruled that fatwas may be issued only by those who are properly educated, and  "no punishment, including physical violence and/or mental torture in any form" may be used to enforce a fatwa. This precludes the practice of caning and beating women to enforce religious rulings-- a practice that had prevailed in some villages. The court also ruled that no fatwa can infringe individual rights that are protected by civil law.

Judge Charged With Improperly Introducing Religion Into Pending Case

The Florida Judicial Qualifications Commission last Monday filed a Notice of Formal Charges against 5th Judicial Circuit Judge William Singbush.  As reported by the Ocala (FL) Star-Banner, in addition to tardiness and lengthy smoke breaks, Singbush is charged with improperly introducing religion and religious beliefs into his decision making in a case before him. In the case, the judge, on his own initiative, obtained a criminal background check on a key witnesses. When counsel for one of the parties moved for a mistrial, Singbush said:

I don’t know of anybody that’s made a mistake—and except for perhaps one, and for that we murdered him. You know, he was faultless and we murdered him for it. That’s not politically correct but I happen to believe in God.... Christ is the intercessor.

Demjanjuk Convicted In Germany; Sentenced To 5 Years; Released Pending Appeal

The Jerusalem Post reports that a court in Munich, Germany yesterday convicted 91-year old John Demjanjuk of assisting in the murder of 27,900 Jews in Poland as a guard at the Nazi Sobibor extermination camp. Demjanjuk was sentenced by the court to 5 years in prison, but was immediately released pending appeal. Legal proceedings have been in progress for decades in the United States, Israel and Germany against Demjanjuk, who lived for years as an auto worker near Cleveland, Ohio.

Local Indonesian Government Bans 4 NGOs, Alleging Proselytizing

The Jakarta Globe reported yesterday that  the Aceh Jaya regency in Indonesia has banned four NGOs-- that have been providing relief since the 2004 tsunami-- from continuing to operate. Residents had complained that the NGOs were attempting to convert Muslims, and the Aceh Jaya government says that an investigation by Ulema Consultative Assembly confirmed that "these foundations were attempting to put down and shove aside the essence of Islamic teachings in Aceh Jaya." The four NGOs involved are the Adventist Development and Relief Agency, the Tangan Peduli Foundation (an organization focused on irrigation projects and furnishing farmers seeds), the Fajar Harapan Foundation, and Cipta Fondasi Komunitas (connected with Baptist World Aid Australia). The organizations that could be reached by the media deny the charges.

Note to Readers: Technical Issues Hopefully Being Resolved

Regular readers may have noted that Thursday's postings have disappeared and there were no postings Friday morning. Google's Blogger-- the platform I use for publishing Religion Clause-- had a major crash yesterday. In an attempt to recover, Google reverted to a version that eliminated items that were posted after Wednesday afternoon. Also I have been unable to post new items until now.  Today's posts will be placed online this afternoon. Google promises to restore Thursday's posts. Let's hope they do. So far, Google has given little information as to why the technical problems occurred.

UPDATE: Here is Google's explanation. As of 3:30 EDT Friday, the missing posts were not yet restored by Blogger.

UPDATE2: The missing posts have now all been restored.

Gingrich Will Emphasize Religion In His Bid For Presidential Nomination

Newt Gingrich announced through Twitter yesterday that he is officially launching a run for the 2012 Republican Presidential nomination.  The Seattle Times reports that his campaign is likely to focus on his new found interest in religion in laying out his fiscally and socially conservative agenda. It is expected that in his formal announcement speech at  the Georgia Republican Party convention on Friday, Gingrich will tie together the concepts of American exceptionalism and God-endowed rights. The article explains:

The strategy is aimed at shoring up Gingrich's standing with the party's social conservative wing, a constituency that regarded him with suspicion, in part because of his three marriages and admission of an extramarital affair.

But in recent years, the former speaker has made gains among evangelical leaders, the result of aggressively cultivating relationships with influential national figures and local pastors in key nominating states.

Gingrich, who was raised a Lutheran and became a Southern Baptist when he entered politics, converted two years ago to the Roman Catholic faith of his third wife, Callista, an experience he said shaped his new focus on faith. Since then, he created a nonprofit organization aimed at religious conservatives, Renewing American Leadership....

Some Jerusalem City Council Members Oppose Opera Festival That Will Be Held In Churches

In Israel, four Orthodox Jewish deputy mayors have introduced a resolution in Jerusalem's city council demanding an end to municipal sponsorship of events that could cause Jews to violate religious law.  Haaretz yesterday reported that the four want Jerusalem Mayor Nir Barkat to withdraw municipal sponsorship from a June opera festival because some of the performances will be in held in churches.  Their resolution states: "Extra caution shall be exercised when holding events in churches and other locations that Jews are forbidden to enter, on pain of death, by virtue of the prohibition against idol worship." The mayor says he has no intention of changing the festival program, but might remove the city's logo from some of the publicity material. Others on city council strongly oppose the motion that has been presented. A letter from Meretz party representatives said: "It's time the Haredim realized that Jerusalem is not a city bound by religious law, but rather a free city that lives in compliance with the Declaration of Independence, and that they do not have a monopoly on the Jewish religion."

Tennessee School District Will Ban Gideon Bible Distribution In Classroooms

The Tennessean reported Tuesday that White County (TN) school officials have agreed to ban the Gideons from distributing Bibles in school classrooms.  The ACLU raised the issue after it received a complaint about Bibles being distributed at an elementary school in Doyle, TN, some 100 miles east of Nashville. A student says she did not want to take a Bible, but felt pressured into coming up and accepting it. [Thanks to Alliance Alert for the lead.]

House Chaplain Nomination Hits Snag, But Is Now A "Go"

Roll Call reported yesterday that House Speaker John Boehner's plans to appoint Jesuit priest Patrick J. Conroy as the next House Chaplain (see prior posting) hit a snag, but is now back on track. It turns out that Conroy is a member of the Oregon Province of the Society of Jesus which is in bankruptcy and which last March settled sex abuse claims by 470 victims, most of whom were abused at Native American mission schools, for $166 million. (See prior posting.)  When this information became known, House minority leader Nancy Peolsi raised questions about the nomination. However after obtaining answers to additional questions, Peolsi is now satisfied with the nomination moving ahead. Apparently neither Boehner nor Pelosi knew of this history when the nomination was originally announced. Some other House members say they still want to make certain that Conroy's past is examined thoroughly. [Thanks to Pew Sitter for the lead.]

Navy Chief Chaplain Reverses Recent Policy On Same-Sex Marriages In Base Chapels

The Navy yesterday reversed its recently announced policy (see prior posting) that would have permitted Navy chaplains to perform same-sex marriages and civil unions in Navy chapels.  Navy Chief of Chaplains Rear Adm Mark Tidd said he was suspending the earlier guidance pending additional legal and policy review and closer coordination with the other branches of the military. The Los Angeles Times reports today that a letter from 63 House members to Navy Secretary Ray Mabus asked for reversal of the policy, saying that it violates federal law-- the Defense of Marriage Act. The Washington Post reported yesterday that members of the House Armed Services Committee are expected to introduce amendments to the defense authorization bill that would prohibit the use of Defense Department facilities for same-sex marriages, even if state law permits them.

Indiana Governor Signs New Voucher Law With Curricular Mandates Included

OneNewsNow reports that Indiana Gov. Mitch Daniels last week signed into law HB 1003, creating a "choice scholarship" program for students from families whose income does not exceed 150% of the amount to qualify for the federal free lunch program. It also provides tax deductions for parents who send their children to private schools or who home school them. It increases the tax credit for contributions to scholarship granting organizations, and bars such organizations from limiting scholarships to only one school.

The new law sets out a series of curricular requirements for schools that accept the new scholarships. It contains a lengthy list of historical documents that teachers must be allowed to read or post in classrooms or at school events. These include the Constitution, the national motto, all U.S. Supreme Court decisions and "Chief Seattle's letter to the United States government in 1852 in response to the United States government's inquiry regarding the purchase of tribal lands." The law bars such schools from "content based censorship of American history or heritage based on religious references" in these documents. Certain of the basic documents must be in the school's library. Students must be allowed to refer to these documents in any report or work product.

The new law contains another list of curricular requirements relating to government, citizenship and  personal values. Among the social science requirements are "a study of the Holocaust and the role religious extremism played in the events of September 11, 2001, in each high school United States history course."

Missourians Will Vote On Expanding Free Exercise Clause In State Constitution

In November 2012, Missouri voters will vote on a proposed state constitutional amendment (full text) that, if passed, will expand the language of the religious freedom protections in the current Art. I, Sec. 5 of the Missouri Constitution. HJR 2, approved by the House in March was approved by the state Senate yesterday. In addition to making the language of the free exercise provisions gender neutral, the new Art. I, Sec. 5 will add a laundry list of protections:

• neither state or local governments shall establish any official religion, nor shall a citizen's right to pray or express religious beliefs be infringed;
• the state shall not coerce anyone to participate in prayer or other religious activity, but shall ensure that any person shall have the right to pray individually or corporately in a private or public setting;
• citizens as well as state and local elected officials and employees shall have the right to pray on government premises and public property within the same parameters placed on other speech under similar circumstances;
• the General Assembly and the governing bodies of political subdivisions may extend to clergy and others the privilege to offer invocations or other prayers at their meetings or sessions;
• students may express their beliefs about religion in written and oral assignments free from discrimination based on the religious content of their work;
• no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs;
• the state shall ensure public school students their right to free exercise of religious expression without interference, as long as their prayer or expression is private and voluntary, whether individually or corporately, and in a manner that is not disruptive and as long as such prayers or expressions abide by the same parameters placed upon other speech;
• all free public schools receiving state appropriations shall display, in a conspicuous and legible manner, the text of the Bill of Rights of the Constitution of the United States.

According to Political Fix, in past years, similar proposals have died in the state Senate. State senator Jolie Justus said:  "This was such a meaningless amendment, we just didn’t feel like we needed to put forth the effort to stop it this year."  Rep. Mike McGhee who sponsored the proposal in the House disagreed. He said: "If voters approve this it will send a message that the citizens of the state believe it’s OK to read a Bible to study hall. That it’s OK to pray briefly before a City Council meeting. That’s what we were trying to do by bringing this amendment forward." [Thanks to Alliance Alert for the lead.]