Algeria Orders 7 Protestant Churches Closed For Lack of Permits

AFP reported yesterday that all seven Protestant churches in Algeria's Bejaia region have been ordered closed, apparently because they have not obtained permits as required by a law enacted in 2006.   However Mustapha Krim, president of the Protestant Church in Algeria, says the churches will continue to operate because they were functioning before the 2006 law was enacted.

Santa Monica May Be Next City To Place Circumcision Ban On Ballot

The Los Angeles Jewish Journal reported last week that on May 19, a proponent filed a Notice of Intent To Circulate Petition (full text) with the Santa Monica (CA) City Clerk's Office indicating that she plans to seek signatures for a ballot measure banning circumcision of males under 18.  The proposed measure is identical to the one that will appear on San Francisco's ballot in November. (See prior posting.) The measure specifically excludes any exception based on belief that circumcision "is required as a matter of custom or ritual." The language of this exclusion is apparently based on similar language in the Federal Prohibition of Female Genital Mutilation Act of 1995 (18 USC 116(c)). [corrected]

Subpoena For Missionary Records Does Not Violate Free Exercise or Establishment Clause

In Cason v. Federated Life Insurance Co., 2011 U.S. Dist. LEXIS 54778 (ND CA, May 20, 2011), plaintiff sued Federated Life Insurance for disability insurance bad faith.  As part of discovery in the case, Federated issued a subpoena to Optimum Health Institute (OHI)-- which claims to be a church.  Plaintiff, in a deposition, indicated either that she worked at OHI or received some kind of treatment or therapy there. At issue in this case was OHI's claim of privilege for plaintiff's attendance records, her missionary application, and her missionary check-in, time sheet and requests for extension. The court rejected OHI's claim that requiring it to produce these would violate the state and federal establishment and free exercise clauses, privacy protections and the clergy-penitent privilege.

Tennessee Governor Signs Bill Voiding Nashville's Anti-Discrimination Ordinance; Lawsuit Planned

On Monday, Tennessee Governor Bill Haslam signed HB 600 that prohibits local governments from imposing anti-discrimination provisions that vary from those in state law. The new law invalidates a Nashville ordinance that prohibits contractors from doing business with the city if they discriminate on the basis of sexual orientation or gender identity.  News Channel 5 reports that opponents of the state law are planning to file a lawsuit challenging it as discriminating against gays and lesbians. They say the bill has also done away with local protections against discrimination on the basis of disability or veteran status. State lawmakers who supported the bill say that Nashville's ordinance would have created confusion for businesses.

Suit Challenges Denial of Zoning Permit For Special Needs School In Church Building

A church in Fredericksburg, Virginia on Monday filed a lawsuit against the city challenging City Council's denial of a special use permit that would allow the church to operate a private school for special needs children in the church's facility. The complaint (full text) in Calvary Christian Center v. City of Fredericksburg, Virginia, (ED VA, filed 5/23/2011), alleges that the only reasons given by the city for denying the permit were discriminatory and stereotypical safety concerns for day care students in the same building as mentally and emotionally challenged children. The suit alleges violations of RLUIPA, the free exercise and free speech clauses of the 1st Amendment, the ADA and the Rehabilitation Act. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Hawaii Supreme Court Hears Arguments On Native Hawaiian Rights

Art. XII, Sec 7 of Hawaii's Constitution provides:

The State reaffirms and shall protect all rights, customarily and traditionally exercised for  subsistence, cultural and religious purposes and possessed by ahupua'a tenants who are descendants of native Hawaiians who inhabited the Hawaiian Islands prior to 1778, subject to the right of the State to regulate such rights.

Last week, the Hawaii Supreme Court heard oral arguments (audio recording of arguments) in State of Hawaii v. Pratt, (No. SCWC-27897, 5/19/2011), in which a kahu (native Hawaiian religious practitioner) argued that he had the right to take up residence in a state wilderness park to act as a hoa'aina or caretaker of the land and restorer of ancient Hawaiian sites. The Court of Appeals split 2-1 in upholding Pratt's conviction for camping without a permit in Na Pali State Park on the island of Kauaʻi. (Majority opinion, concurrence, dissent). The major issue on appeal is whether, in considering a defense of Native Hawaiian practices, the court should balance against this the state's interest in regulating. The Honolulu Star Advertiser reports on the oral arguments.

Constitutionality of San Francisco's Proposed Circumcision Ban Debated

A number of posts around the blogosphere in recent days debate the constitutionality of San Francisco's upcoming ballot issue (see prior posting) that would ban male circumcision on individuals under 18 years of age except in cases of clear medical necessity, with no exception for religiously mandated circumcision. The posts look at three related issues: free exercise issues (under state and federal law), parental rights issues, and the so-called "hybrid rights" doctrine (free exercise claims reinforced by a parental rights claim). Here are links to some of the more thoughtful analyses:

• Eugene Volokh, Proposed San Francisco Circumcision Ban (with No Discussion of Religious Freedom In This Post) [discussing parental rights issues].
• Eugene Volokh, Proposed San Francisco Circumcision Ban, and Religious Freedom
• Slate's Jeremy Singer-Vine, Snip: A San Francisco ballot measure would ban circumcision. Is that legal? [discussing free exercise issues]
• Michael Helfand, Why San Francisco Ballot Measure Proposing Circumcision Ban Is Unconstitutional [discussing hybrid rights theory]
• Mirror of Justice, Circumcision and Hybrid Rights

[Thanks to Steven H. Sholk for the lead on some of this.]

21 Endorsing Agencies For Military Chaplains Ask For New Conscience Protections

Yesterday, 21 Christian organizations that act as endorsing agents of U.S. military chaplains sent a joint letter (full text) to the Chief Chaplains of the three services urging adoption of "broad, clear, and strong protections for conscience" as the repeal of "Don't Ask, Don't Tell" is implemented.  The letter was apparently triggered by concerns after the Navy's Chief of Chaplains issued, and then suspended, a memo making base chapels available for same-sex marriages and blessing of civil unions in states where these are legal. (See prior posting.) Yesterday's joint letter reads in part:

Chaplains have a tremendous moral responsibility to insure that when they preach, teach or counsel, they do so in accordance with their conscience and in harmony with the faith group by which they are endorsed. When guidance, however, is forthcoming from senior leadership that implies protected status for those who engage in homosexual behavior and normalizes same-sex unions in base chapels, any outside observer would conclude that both homosexuality and homosexual unions officiated as marriages in base chapels are normative. This creates an environment that is increasingly hostile to the many chaplains—and the service members they serve—whose faith groups and personal consciences recognize homosexual behavior as immoral and unsafe and do not permit same-sex unions.

Alliance Defense Fund issued a press release announcing the joint letter.

5th Circuit Hears Oral Arguments On Qualified Immunity In "Candy-Cane" Case

Yesterday the U.S. 5th Circuit Court of Appeals heard oral arguments in Morgan v. Plano Independent School District. (Audio recording of oral arguments.) In the case, a 3-judge panel refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items-- including candy cane pens with religious messages-- during school parties and at other non-curricular times. However, the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) OneNewsNow yesterday reported on the case.

Suit Planned In Nigeria To Challenge Shariah Banking Rules

On Dec. 31, 2010, the Central  Bank of Nigeria issued Guidelines on Shariah Governance for Non-Interest Financial Institutions.The Guidelines require all non-interest banks and financial institutions to comply with Shariah and to appoint a Shariah Advisory Committee. Nigerian Compass reported yesterday that a lawsuit is planned to challenge the new Guidelines as unconstitutionally excluding non-Muslims from the non-interest banking business. Opponents of the Guidelines also say that introducing religion is inconsistent with the Banking and Other Financial Institutions Act of 1991 that bars banks from using various religious terms in their names.

Huntsman Defines His Religious Affiliation

Former Utah governor  and more recently ambassador to China, John Huntsman, Jr., is considering running for the Republican nomination for the Presidency (Salt Lake Tribune).  Religion Dispatches suggests that Huntsman will not allow his Mormonism to define him.  Huntsman's comments about his religious beliefs in an interview last week on ABC's Good Morning America (full text) have been garnering attention. Here is what he said when asked whether he is a practicing Mormon:

I believe in God. I'm a good Christian. I'm very proud of my Mormon heritage. I am Mormon. Today, there are 13 million Mormons. It's a very diverse and heterogeneous cross-section of people. And you're going to find a lot of different attitudes and a lot of different opinions in that 13 million.... And I probably add to that diversity somewhat.

Huntsman also said that he did not think that his religious affiliation would be an issue in the campaign.

Student Delivers Graduation Prayer, Ignoring Scheduled Moment of Silence

CBN and Wall of Separation both report (with somewhat different flavors) on graduation ceremonies last week at Louisiana's Bastrop High School. The school's graduation traditionally included a prayer, but this year for the first time one of the graduating seniors complained about the tradition. Upon advice of its attorney, the school board reprinted the graduation programs to substitute Moment of Silence for the prayer. However when graduating senior Laci Rae Mattice stood at the podium to lead the moment of silence, she instead recited the Lord's Prayer, asking those who shared her beliefs to bow their heads. Not surprisingly, the episode has generated rather different responses around the country. Matthew Staver, chairman of Liberty Counsel, said that students have the right to express religious as well as secular views at graduation.  Meanwhile, the Freedom from Religion Foundation has offered Damon Fowler, the student who originally complained about the prayer, its $1000 student activist award.

Efforts Underway To Create Jewish Section In Texas State Cemetery

In Texas, former state officials and others selected because of their contributions to Texas history or culture are awarded the opportunity of being buried in the Texas State Cemetery in East Austin. (Background.)  The Austin Statesman carried a commentary Saturday on efforts by one Texas woman to create a Jewish section in the cemetery so observant Jews who, under Jewish law, can be buried only in portions of a cemetery set aside for Jewish burials, can accept the honor of being buried there. Camille Kress, a convert to Judaism, is pressing the effort. She and her husband (who has been active in education policy) have plots reserved at the cemetery, but have not decided whether they will use them if no separate Jewish section is created. A 2008 opinion from the state attorney general's office concluded that creating the area and installing a water feature that would allow mourners to engage in traditional washing of their hands, would be constitutional and consistent with the purpose of the statute creating the cemetery. It would remove a religious person's inability to accept the honor of burial there.

Firing of British Prison Officer For Wearing Sikh Kirpan Is Upheld

In Britain, an Employment Tribunal has upheld the firing of a Sikh prison officer who insisted on wearing his kirpan (small ceremonial dagger) in Dovegate Prison near Uttoxeter. This Is Derbyshire reported Saturday that the Tribunal's judge ruled prison officer Jagdip Singh Dhinsa had not been discriminated against. The Tribunal also upheld a National Offender Management Service ban on staff wearing the Kirpan in prisons, except for Sikh prison chaplains. The The Ministry of Justice warned of the risks involved: "a member of staff may be targeted or even taken hostage by prisoners if it is known that he is wearing the Kirpan [or] ... the Kirpan may be inadvertently dropped and lost within the prison."

Malta To Vote On Ending Divorce Ban; Church Is Strongly Opposed

Next Saturday, Malta -- which is 95% Catholic-- is holding a referendum on whether divorce should be legalized in the country. The London Telegraph reports that Malta is the only member of the European Union that does not permit divorce and only one of two nations in the world. The other is the Philippines. The ballot measure will read:

Do you agree with having the option of divorce for married couples who have been separated for four years when there is no reasonable hope for reconciliation, and when adequate maintenance is guaranteed and the children are cared for?

The electorate is very closely split on the issue, with proponents slightly in the lead.  The Catholic Church uses the pulpit on Sunday mornings to urge a "no" vote. The "yes" movement hold rallies in public squares around the country on Sundays immediately after church services. Malta's constitution declares Catholicism the official religion of the country. Meanwhile, according to CNA, some are arguing that ending Malta's ban on divorce would encourage radical Islam. Some 3000 Muslim North African refugees have recently come to Malta, fleeing unrest in their home countries. They join 6,000 Muslims already there. U.S. author Stephen Schwartz argues: "a radical would see as much confusion as possible among the non-Muslims as good for the Muslims." He fears radical Muslim clerics would see those who have divorced-- and thus left the Church-- as fair game for Muslim proselytizing.

Recent Articles of Interest

From SSRN:

• Hdeel Abdelhady, The Front Office Generates Revenue, the Back Office Creates Value: Operational Excellence is the Key to Unlocking Value in Islamic Finance, (December 8, 2010).
• Hdeel Abdelhady, Islamic Law in Secular Courts (Again): Teachable Moments from the Journey, (May 8, 2011).
• Meir Katz, The Economics of Section 170: A Case for the Charitable Deduction of Parochial School Tuition, (Rutgers Journal of Law and Religion, Vol. 12, No. 2, p. 224, Spring 2011).
• Perry Dane, Review of ‘Islam and the Secular State: Negotiating the Future of Shari‛a’ by Abduallahi Ahmed An-Na‛im, (Ancient Traditions, New Conversations, 2011).

From SmartCILP and elsewhere:

• Ian Bartrum, Salazar v. Buono: Sacred Symbolism and the Secular State, 104 Northwestern University Law Review 1653-1664 (2010).
• Chad M. Cullen, Can TRIPS Live in Harmony with Islamic Law? An Investigation of the Relationship Between Intellectual Property and Islamic Law, 14 SMU Science and Technology Law Review 45-68 (2010).
• Constance Frisby Fain, Minimizing Liability for Church-Related Counseling Services: Clergy Malpractice and First Amendment Religion Clauses, 44 Akron Law Review 221-260 (2011).
• Brian H. Bix, Mahr Agreements: Contracting in the Shadow of Family Law (and Religious Law)—A Comment on Oman’s Article, 1 Wake Forest L. Rev. Online 61 (2011).

Disclosure To Jewish Religious Court Waives Privilege As To Information From Social Worker

A Toms River, New Jersey state Superior Court judge last week ruled that former yeshiva teacher Yosef Kolko, who has been criminally charged with sexual assault on an 11-year old boy, has waived the confidentiality of statements he made to a social worker. The Asbury Park Press reports the details.  Originally the victim's father reported the assault to a Bet Din (Jewish religious court) which employed a Brooklyn social worker to interview Kolko to determine whether the charges were credible.  Kolko signed a waiver allowing information from the interview to be reported to the Bet Din.  Now state court judge Francis R. Hodgson has ruled that this amounted to a waiver of the privilege that would otherwise attach to the information. The judge said in part: "I think that it is not a small factor to be considered that [the Bet Din] is a parallel justice system ... within a closed community."

Recent Prisoner Free Exercise Cases

In Williams v. Bradford, 2011 U.S. Dist. LEXIS 51879 (D NJ, May 13, 2011), a New Jersey federal district court dismissed, without prejudice, an inmate's claims that his rights under the 1st, 14th and 8th amendments as well as RLUIPA were violated when  the coordinator of the prison's NuWay Program made mocking remarks about Islam and mimicked an Arabic prayer. It also dismissed claims that supervisors failed to enforce rules of the NuWay program.

In Baker v. Pratt, 2011 Ariz. App. Unpub. LEXIS 573 (AZ Ct. App., Jan. 20, 2011), an Arizona appellate curt dismissed an inmate's complaint that his rights were violated when his meal schedule for kosher meals required him to eat breakfast and lunch at the same time on weekends.

In Freeman v. Julious, 2011 U.S. Dist. LEXIS 52604 (ED CA, May 6, 2011), a California federal magistrate judge dismissed claims by an inmate, a practitioner of Satanism, that he was denied access to religious items, such as a satanic bible, and other materials and artifacts, and was denied access to a satanic clergyman.

In Ali v. Dewberry, 2011 U.S. Dist. LEXIS 52765 (ED TX, May 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 52766, April 21, 2011) and dismissed a complaint by a Muslim inmate that his religious concerns about not helping others to eat pork were violated when he was assigned to work as a fork lift operator at a packing plant that slaughtered and processed pork. He was required to wrap boxes and move them with a fork lift.

UPI reported last week that after court rulings in a Muslim inmate's favor, Virginia's attorney general has settled a suit brought by Rashid Qawi al-Amin. The Corrections Department will place $2,5000 worth of Islamic materials in the Greensville Correctional Center's library and will hire a Muslim inmate to work in the library.

Falun Gong Class Action Claims Cisco Helped China Track Practitioners

In an interesting new lawsuit, a number of U.S. and Chinese citizens who are practitioners of Falun Gong have filed a class action in federal court in California against Cisco Systems, Inc. and its executives for their alleged role in providing technology to the Chinese government that permitted it to track and persecute Falun Gong members. The action was filed on behalf of:

All person who were identified as Falun Gong practitioners through the use of the Golden Shield by Chinese authorities and were thereafter subjected to detention and/or physical abuse and/or torture for their Falun Gong related activity, and suffered injury as a result.

The 52-page complaint (full text) in Doe v. Cisco Systems, Inc., (ND CA, filed 5/19/2011), asserts 15 causes of action including violations of the Alien Tort Statute and the Torture Victims' Protection Act.  It alleges that:

Cisco Systems, Inc.... knowingly, purposefully and intentionally designed, supplied, and helped to maintain a censorship and surveillance network known as the Golden Shield in collaboration with the Chinese Communist Party and Chinese Public Security officers, knowing and intending that it would be utilized by members of the Communist Party of China ("CCP") and Chinese Public Security officers to eavesdrop, tap and intercept communications, identify, and track Plaintiffs as Falun Gong members for the specific purpose of subjecting them to gross human rights abuses, including arbitrary arrest and detention, torture, extrajudicial killing, and crimes against humanity, all in violation of international, U.S., and California law.

Reuters, reporting on the lawsuit, says that Cisco denies the allegations and contends that the company does not customize its products in any way that would facilitate censorship or repression.

Anti-Gay Pastor Questions Obama's Religion In Prayer Opening Minnesota House Session

Salon reports on the controversy generated by the prayer offered on the floor of the Minnesota House of Representatives yesterday by Bradlee Dean, founder of the You Can Run But You Cannot Hide ministry. The prayer questions President Obama's religious beliefs. Dean ended his invocation as follows:

I know this is a non-denominational prayer in this Chamber and it's not about the Baptists and it's not about the Catholics alone or the Lutherans or the Wesleyans. Or the Presbyterians the evangelicals or any other denomination but rather the head of the denomination and his name is Jesus. As every President up until 2008 has acknowledged. And we pray it. In Jesus' name.

Republican House Speaker Kurt Zellers denounced Dean's remarks and said: "That type of person will never ever be allowed on this House floor again as long as I have the honor of serving as speaker." As reported by the Minnesota Independent, Dean has previously generated controversy by statements calling for imprisonment of gays and lesbians, accusing gay men of child molestation and saying that Muslim countries that execute gays are more moral than American Christians.