UK Court Faces Prisoner Free Exercise Claim

A prisoner free exercise decision handed down last month by Britain's Administrative Court is interesting as a comparison to the approach under the 1st Amendment and RLUIPA routinely taken to such cases in the U.S. In Bashir, R (on the application of) v The Independent Adjudicator , (EWHC Admin., May 3, 2011), a devout Muslim prisoner on the advice of an imam was engaged in a 3-day personal fast in religious preparation for his Court of Appeal appearance when he was asked for a urine sample for a random drug test.  He was convicted of violating prison regulations when he refused to drink enough water to allow him to give a sufficient urine sample for the test.  The court reversed the conviction imposed by the independent adjudicator, holding that under Art. 9 of the European Convention on Human Rights it needed to be determined whether the interference with religion was proportionate to the end pursued. The court concluded:

There was no evidence before the Adjudicator which enabled him to conclude (as apparently he did) that it was proportionate to require all Muslim prisoners engaged in personal fasting to break that fast as and when required to do so for the purposes of providing a MDT sample regardless of the circumstances. In any event some care needs to be taken before a Court accepts at face value assertions of an un-particularised sort that making reasonable adjustments would be too administratively inconvenient or too expensive to be contemplated.

UK Human Rights Blog reported on the decision last week. [Thanks to Peter Griffith for the lead.]

Recent Articles Of Interest

From SSRN:

• Thomas Charles Berg, The Story of the School Prayer Decisions: Civil Religion under Assault, (First Amendment Stories, Richard Garnett, Andrew Koppelman, eds., Foundation Press, 2011).
• Zachary R. Calo, Review of Defending Constantine by Peter Leithart, (Modern Age, Forthcoming).
• Aviva Orenstein, Once We Were Slaves, Now We are Free: Legal, Administrative, and Psychosocial Issues Raised by Passover Celebrations in Prison, (Indiana Legal Studies Research Paper No. 195, June 6, 2011).
• Michaek G. Freedman, Prosecuting Terrorism: The Material Support Statute and Muslim Charities, (Hastings Constitutional Law Quarterly, Vol. 38, No. 4, pp. 1113-1147, 2011).
• Marie A. Failinger, Yick Wo at 125: Four Simple Lessons for the Contemporary Supreme Court, (Michigan Journal of Race and Law, Forthcoming).
• Marie A. Failinger, Islam in the Mind of American Courts: 1800-1960, (Boston College Third World Law Journal, Forthcoming).
• Ruth E. Gavison, Can Israel Be Both Jewish and Democratic?, (R. Gavison, Israel as a Jewish and Democratic State, p. 115, 2011).
• Kevin Lee Brady, Religious Sincerity and Imperfection: Can Lapsing Prisoners Recover Under RFRA and RLUIPA?, (University of Chicago Law Review, 2011).
• Ross J. Corbett, Locke's Biblical Critique, (March 3, 2011).
• Nimat H. Barazangi, Why Muslim Women are Re-Interpreting the Qur'an: A Transformative Scholarship Activism, (Sept 16, 2010).
• Nomi Maya Stolzenberg, Righting the Relationship between Race and Religion in Law, (Oxford Journal of Legal Studies, 2011).

From SmartCILP and elsewhere:

• Jose Ambrozic, Beyond Public Reason on Energy Justice: Solidarity and Catholic Social Teaching, [Abstract], 21 Colorado Journal of International Environmental Law and Policy 381-398 (2010).
• Jorge O. Elorza, Secularism and the Constitution: Can Government Be Too Secular?, 72 University of Pittsburgh Law Review 53-117 (2010).
• Symposium: The Future of Rights of Conscience in Health Care: Legal and Ethical Perspectives. Preface by James W. Devine; articles by Lynn D. Wardle, Kent Greenawalt, Robert K. Vischer, Armand H. Matheny Antommaria, Robin Fretwell Wilson, Richard S. Myers, Jill Morrison, Micole Allekotte and T.A. Cavanaugh. 9 Ave Maria Law Review 1-206 (2010).
• Reviewing Douglas Laycock's Religious Liberty, Volume One: Overviews and History. Book reviews by Thomas C. Berg, Steven D. Smith and Jay Wexler; response by Douglas Laycock. 89 Texas Law Review 901-966 (2011).
• Signs of the Times: The First Amendment and Religious Symbolism. Essays by Peter Irons and Thomas C. Berg; panel discussion with Joseph Thai, moderator; Carl H. Esbeck, Eduardo Penalver, Kevin Theriot, Micheal Salem and Rick Tepker. 63 Oklahoma Law Review 1-100 (2010).
• Symposium. Civil Religion in the United States and Europe. Introduction by Silvio Ferrari; articles by Blandine Chelini-Pont, Pasquale Annicchino, Emmanuel Tawil, Alessandro Ferrari, Andrew Koppelman, Winnifred Fallers Sullivan, Frederick Gedicks, David Fontana, Pierre-Henri Prelot, Michael Perry, Marco Ventura, and Talip Kucukcan; afterword by Brett Scharffs. 41 George Washington International Law Review 749-1000 (2010).
• Meir Katz, The State of Blaine: A Closer Look at the Blaine Amendments and Their Modern Application, Engage Volume 12, Issue 1, June 2011.
• Luke Goodrich, The Health Care and Conscience Debate, Engage Volume 12, Issue 1, June 2011.

Canadian School Board Proposes Elaborate Religious Guidelines

In Canada, Ontario's Hamilton-Wentworth school district has posted for comment an elaborate and interesting 11-page set of guidelines for religious accommodation in the schools. (Full text). Life Site News last week reported, however, that conservative Christian groups are criticizing the guidelines because of the guidelines' definition of what constitutes a protected religious creed:

Creed does not include secular, moral, or ethical beliefs or political convictions. This policy does not extend to religions that incite hatred or violence against other individuals or groups, or to practices and observances that purport to have a religious basis, but which contravene international human rights standards or criminal law.

The head of the local Family Action Council contends that this language: "unjustly discriminates against Christians by re-defining religion to exclude moral beliefs."

Sri Lanka's Promotion of Buddha Statues Interferes With Secular Image of Nation

Sri Lankan diplomats are concerned about the Sri Lankan government's decision to send 26 Buddha statues to Sri Lankan missions overseas.  Today's Sri Lanka Sunday Leader reports that the move, organized by the Sri Lanka Bureau of Foreign Employment and the Presidential Secretariat last week, interferes with attempts to portray the country internationally as a secular state. The statues were sent to mark the 2,600th Sambuddhathva Jayanthi. Religious ceremonies surrounded the transport of the statues to Colmbo en route to their overseas destinations.

Recent Prisoner Free Exercise Cases

In Williams v. Book, 2011 U.S. Dist. LEXIS 59338 (ED CA, June 1, 2011), a California federal magistrate judge dismissed on qualified immunity and mootness grounds a claim by a Muslim inmate that he was entitled to a halal or kosher meat diet, not merely a religious vegetarian diet.

In Brown v. Department of Correctional Services, 2011 U.S. Dist. LEXIS 59633 (WD NY, June 2, 2011), a New York federal magistrate judge refused to permit an inmate to amend his complaint to allege discrimination based on the fact that he is an African-American Jew with a disability.

In Garner v. Livingston, 2011 U.S. Dist. LEXIS 59546 (SD TX, May 19, 2011), a Texas federal district court issued a declaratory judgment finding the Texas prison grooming policy a violation of RLUIPA insofar as it prevents a Muslim inmate from wearing a quarter-inch beard. However the court upheld the prison's policy requiring plaintiff to remove his Kufi and make it available for inspection when going to and from religious services.

In Durbin v. Cain, 2011 U.S. Dist. LEXIS 59853 (MD LA, June 3, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 59895, May 9, 2011), and permitted an inmate to move ahead with claims that he has been denied the right to congregate with members of his Jewish faith and to attend Jewish services at the main prison complex, and that prison officials refuse to recognize Jewish holy days.

In O'Neal v. Bailey, 2011 U.S. Dist. LEXIS 60331 (CD CA, June 2, 2011), a California federal magistrate judge dismissed with leave to amend a Christian inmate's complaint regarding three occasions on which deputies refused to notify the prison kitchen regarding problems with the vegan meals he was supposed to receive.

In Thomas v. Croft, 2011 U.S. Dist. LEXIS 60628 (SD OH, June 7, 2011), an Ohio federal magistrate judge rejected claims by a Seventh Day Adventist inmate regarding the refusal by prison authorities to relieve the inmate of a work assignment on one Friday evening.

In Williams v. Wong, 2011 U.S. Dist. LEXIS 60786 (ED CA, June 6, 2011), a California federal magistrate judge denied a habeas corpus petition, rejecting an inmate's claim that the parole board required him to participate in a faith-based 12-step program.

Azerbaijan Parliament Passes Amendments To Law on Religion

News.az reports that on Friday, Azerbaijan's Parliament passed controversial amendments to the country's Law on Religion.  Islamic religious organizations must now report to the Caucasus Muslims Department, while other religious groups must report to the State Committee for Working with Religious Structures or to the Ministry of Justice. Houses of worship can only operate at the legal address registered with the government, and can operate only after appointment of a clergyman by a religious center or the Caucasus Muslims Department.  According to an earlier report by Forum 18, the new law also raises from 10 to 50 the number of founders required to register a religious organization.

Indonesian Court Sentences 17 In Attack on Christian Churches

In Semarang, Indonesia, four panels of district court judges last week convicted 17 Muslims of destroying public property and assault in connection with sectarian violence that took place last February in the central Java town of Temanggung. (See prior posting.)  AFP reported that 16 of the defendants were sentenced to 5 months in jail and one was sentenced to 4 months after convictions relating to the burning of two Christian churches and the ransacking of a third as a mob of 1500, unhappy with the 5-yearsentence imposed by a court, demanded that a Christian man be sentenced to death for insulting Islam. One of the defendants was found to have sent text messages the day before the Christian man's trial on the order of a local Muslim cleric who apparently planned the attack.. Nine others, including the cleric, will receive verdicts this week.

California Prisons Will Permit Beards For Religious Reasons

The ACLU of Southern California announced earlier this week that the California Department of Corrections and Rehabilitation has agreed to amend its grooming policies so that inmates will be allowed to wear beards in accordance with their religious faiths.  The policy change comes in a settlement of a lawsuit filed earlier this year. In Basra v. Cate, (CD CA, filed 2/25/2011) (full text of complaint), the ACLU sued under RLUIPA on behalf of a Sikh prisoner who faced sanctions and exclusion from prison programs because he refused to shave his beard or cut his hair for religious reasons. The U.S. Department of Justice had also filed a parallel lawsuit. (See prior posting.)

Statue of Hindu God In Art Display Provokes Controversy

This week, the city of Coeur d'Alene, Idaho announced its newest art-on-loan program. Fifteen sculptures from around the country are on display in the downtown corridor and City Park for one year, or until they are sold if that is sooner. (Photos of sculptures.) While several of the sculptures have religious themes, the sculpture of the Hindu god Ganesha has created controversy according to reports in the Coeru d'Alene Spokesman-Review and KXLY News.  The head of the Kootenai County Constitution Party encouraged a protest yesterday, saying in a website posting titled "Idols come to Cour d'Alene" that the Ganesha sculpture is an "abomination" which was approved by the "godless group of individuals that manage the art of the city."  Meanwhile, a Hindu spokesman applauded the inclusivity that is represented by the Ganesha statue. (Daily India, 6/10).

Article Analyzes Salafi Anti-Christian Actions In Egypt

Today's Wall Street Journal carries a lengthy article titled As Islamists Flex Muscle, Egypt's Christians Despair.  It focuses on recent actions by Salafi militants, including physical attacks on Coptic Christians. It also focuses more broadly on Salafi goals:

Before President Hosni Mubarak was toppled on Feb. 11, the Salafis mostly confined themselves to preaching. Since then, they've entered the political arena, drawing crowds and swaying government decisions. Salafi militants also have blocked roads, burned churches and killed Copts.....

Until recently, fears of an Islamist takeover in Egypt centered on the Muslim Brotherhood, a much better known organization that's trying to project a new image of moderation. While many liberal Egyptians remain deeply suspicious of the Brothers' true intentions, the Brotherhood now says it accepts Copts—the Middle East's largest religious minority—in all government positions, with the possible exception of president.

By contrast, many Salafis believe it is forbidden by Islam for Christians to exercise political power over Muslims in any capacity, such as governors, mayors or ministers.

More Religious Challenges To Official Sports Uniforms Are Raised

In the wake of the disqualification of Iraq’s women’s soccer team by international sports officials because of the team’s insistence on a uniform that meets religious requirements (see prior posting), two more challenges to international sports uniform rules have been mounted. The Atlanta Journal Constitution and CNN reported yesterday that the U.S. Olympic Committee has asked the International Weightlifting Federation to review its rules after a 35-year old Muslim woman, an Atlanta resident, was disqualified from competing in a national competition in Ohio last December. IWF rules require that athletes wear costumes that are collarless and do not cover the elbows or knees.  Weight-lifter Kulsoom Abdullah usually wears loose long pants that extend below her ankles, a long-sleeve fitted shirt with a loose T-shirt over it, and a hijab covering her hair. Modifications create several problems. Judges need to see that the weight lifter's elbows and knees are locked during the lift. They also need to make certain that the individual is not wearing anything on her elbows that would give her a competitive advantage. The IWF technical committee will review the relevant rules on June 26 at a scheduled meeting in Malaysia. It will present a recommendation to the IWF executive board the next day.

Meanwhile, in Israel, an Orthodox Jewish player on the country’s women's national basketball team has been disqualified. FIBA Europe, the governing body for European basketball, says that its rules require that all members of a team be dressed alike. Naama Shafir wears a T-shirt under her jersey in order to comply with Jewish religious rules relating to modesty. AP  and JTA this week report that FIBA has refused to make an exception for Shafir so she can play in a tournament that opens June 18 in Poland. According to Haaretz, an Israeli appeal of the ruling was rejected on technical grounds. Shafir just completed her college studies in the United States, where she led the University of Toledo (Ohio) team to a  Women's NIT championship. (Background.) Officials had no problem with permitting Shafir to wear the modified uniform when playing in the U.S. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

1st Amendment Scholar Prof. Steven Gey Dies

Florida State University College of Law reports that First Amendment scholar, Prof. Steven Gey, died yesterday after a valiant struggle with ALS. (See prior posting.) Gey authored a casebook on Religion and State as well as numerous articles on First Amendment speech and religion issues. (Vita; bibliography; SSRN articles.) A 2007 article in Florida State's alumni magazine describes Gey's love of teaching and of "the discourse of ideas." [Thanks to Brian Sites for the information.]

Idaho City Settles RLUIPA Suit By Church

AP reported Wednesday on the settlement of a RLUIPA lawsuit that was filed last month in federal district court in Idaho. No Limits Christian Ministries had sued the city of Mountain Hope (ID) challenging the city's denial to the church of a conditional use permit that would allow it to worship in a vacant building it owned.  The suit claimed that religious groups were specifically excluded under the zoning law while other organizations were not.  The settlement provides that the church's use of its building will be treated as a permitted use under the zoning ordinance. The city's mayor said that he and city council were unaware of RLUIPA.

In Pakistani Province, Christian Finance Minister May Be Barred From Giving Budget Speech

In the Pakistani province of Punjab, the province's chief minister Shahbaz Sharif has created controversy by apparently going along with pressure from a number of members of his Pakistan Muslim League (Nawaz) Party (PML-N) to prevent the Party's current finance minister, a Christian, from delivering the annual budget presentation in the Punjab Assembly. According to yesterday's Sri Lanka Guardian, the controversy involves Kamran Michea, Punjab's minister for the Human Rights who more recently was also appointed finance minister after the PML-N's coalition with the Pakistan Peoples Party broke down.  Michea was elected to the Punjab Assembly in 2002 to fill one of the seats reserved for non-Muslim minorities. However several members of the PML-N say that only a Muslim should deliver the budget speech and are urging the Chief Minister to deliver it this year.  A senior PPP member of the Assembly says his members will walk out if the Chief Minister delivers the speech.

Mississippi High Court: Judge Misused Contempt Powers Against Lawyer Who Refused To Say Pledge

In Mississippi Commission on Judicial Performance v. Littlejohn, (MS Sup. Ct., June 9, 2011), the Mississippi Supreme Court upheld the public reprimand and assessment of $100 costs on a chancery court judge for misusing his powers of contempt.  Judge Talmadge Littlejohn ordered attorney Danny Lampley arrested for contempt when Lampley stood quietly and did not join in the recitation of the Pledge of Allegiance led by the judge.  According to the Clarion (MS) Ledger's report on yesterday's decision,  Lampley was held in jail for almost 5 hours. Judge Littlejohn admitted to the Judicial Performance Commission that his action violated Lampley's 1st Amendment rights and Littlejohn has agreed to change the way in which he leads the Pledge of Allegiance in the future. He will respect the rights of anyone who chooses not to join in the recitation.

Virginia County Reauthorizes 10 Commandments In Schools

The Giles County, Virginia school board has been struggling for months over whether and how copies of the Ten Commandments should be displayed in its schools. As previously reported, for ten years copies of the Ten Commandments had been displayed next to a copy of the Constitution. Last December they were removed after a complaint from the Freedom from Religion Foundation (FFRF). By January they were back up after community members complained about their removal.  But in February they were again removed. And again this was met with student and community protests. Now the Roanoke Times reports that last Tuesday, by a split vote, the school board again voted to restore the Ten Commandments to the schools, but this time with an elaborate resolution (full text) drafted with the advice of the Christian advocacy group, Liberty Counsel. The Ten Commandments are now to be included as part of a display of nine specified historical documents.  The posting of this display in any school can be financed by private parties, and a procedure is set out for others who want to finance the posting of additional historical documents. The FFRF and ACLU say they will file suit.

New USCIRF Commissioner Appointed

The U.S. Commission on International Religious Freedom announced that on June 7, President Obama appointed Azizah Y. al-Hibri to be a member of the Commission.  The new appointee is Professor of Law at the University of Richmond and founder of KARAMAH: Muslim Women Lawyers for Human Rights. Dr. al-Hibri will replace outgoing commissioner Imam Talal Eid.

IRS Announces Loss Of Non-Profit Status By Groups That Failed To File For 3 Years

The Internal Revenue Service announced yesterday that some 275,000 non-profit organizations have automatically lost their tax-exempt status because they failed to file their annual return (Form 990 or 990-N) for three consecutive years. Most of the organizations affected likely no longer exist. Churches, various church organizations, church-affiliated elementary and high schools and religious activities of religious orders are not affected since they are exempt from annual IRS filings. (IRS background). However other types of religious organizations are among those that have been affected. The IRS has posted a list of all the organizations which have lost their exemptions and has posted an FAQ document explaining how to restore tax exempt status.

9th Circuit Hears Oral Arguments In Ban On School Use of Primary Source Religious Books

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Nampa Classical Academy v. Goesling. (Audio recording of full arguments.) In the case, the trial court rejected a challenge by a state-funded charter school to a state policy that barred its use of the Bible, the Koran and other sectarian books as primary source teaching material. The district court held that the charter school is itself a political subdivision and has no rights to assert against the state that is controlling the content of governmental speech. (See prior posting.) Blog from the Capital reports on the oral arguments.

Circumcision Ban Ballot Efforts Dropped in Santa Monica

As previously reported, last month a proponent began efforts in Santa Monica, California to get on the ballot there a proposal to ban circumcision, identical to the one being voted on this fall in San Francisco. Now, according to the New York Times earlier this week, the proponent in Santa Monica is dropping her efforts to get the issue placed before voters. Jenna Troutman, creator of the website wholebabyrevolution.com , explained her change of heart:  "The religious opposition really rose up, and I never intended it to be about that at all. Ninety-five percent of babies who are circumcised have nothing to do with religion — that’s what I was focused on. Once I discovered this bill was not going to open up the conversation but was closing it down, I wanted no part of it."