Iraqi Kurdish Parliament Outlaws Female Genital Mutilation

Hudson New York reports that last week Iraqi Kurdistan's Parliament passed a law outlawing female genital mutilation. The move came after a survey by a German-Iraqi non-governmental organization, WADI, revealed that more than 60% of the women and girls in Iraqi Kurdistan have been subjected to genital mutilation. The practice is limited to Sunni Kurds, but appears to have little support in Islamic law.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Supreme Court of Canada’s Attempt to Reconcile Freedom of Religion and Sexual Orientation Equality in the Public Schools, (Faith, Politics and Sexual Diversity, D. Rayside, C. Wilcox, eds., UBC Press, 2011).
• Richard Moon, Accommodation Without Compromise Comment on Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review, Vol. 51, pp. 95-130, 2010).
• Menachen Mautner, Three Approaches to Law and Culture, (Cornell Law Review, Vol. 96, p. 839, 2011).
• Brett Freudenberg and Dr. Mahmood Nathie, The Constitution and Islam: Are Tax Reforms Possible to Facilitate Islamic Finance?, (Revenue Law Journal, Vol. 20, No. 1, pp. 1-36, 2011).
• James Cleith Phillips, 'All of the Blood and Treasure': The Founders on Christian Legal Society Chapter of the University of California, Hastings College of the Law v. Martinez, (Mississippi College Law Review, Vol. 30, No. 1, 2011).
• Daniel McGirr, The Constitutionality and Policy Merits of Religiously Motivated Statutes, (April 19, 2011).
• Richard Moon, The Regulation of Hate Speech Under the Canadian Human Rights Act, (Canadian Diversity, Vol. 83, pp. 28-32, 2010).
• Bryan H. Wildenthal, A Personal Perspective on Marriage, Time, Space, Uncertainty, and the Law, (Michigan State Law Review, Vol. 2011).
• Rebecca Probert, 'From Fornicators to Family: Cohabitants and the Law, 1600-2010', (June 22, 2011).
• Aaron Schwabach, Of Charities and Clawbacks: The European Union Proposal on Successions and Wills as a Threat to Charitable Giving, (Columbia Journal of European Law, Vol. 17, 2011).

From SmartCILP:

• Jeroen Temperman, State Neutrality in Public School Education: An Analysis of the Interplay Between the Neutrality Principle, the Right to Adequate Education, Children's Right to Freedom of Religion or Belief, Parental Liberties, and the Position of Teachers, [Abstract], 32 Human Rights Quarterly 865-897 (2010).

Court Requires Organization That Claimed Religious Status To Comply With FTC Order

In United States v. Daniel Chapter One, (D DC, June 22, 2011), the federal district court for the District of Columbia granted a preliminary injunction enjoining an organization from continuing to market dietary supplements without complying with a cease and desist order issued by the Federal Trade Commission. The supplements were promoted as curing or preventing cancer and ameliorating the effects of radiation and chemotherapy.  Defendant had claimed that the FTC order violated its free exercise of religion because it is a religious corporation sole, and that the order violated the establishment clause because it was based on "scientism".  However the D.C. Circuit rejected that claim and the U.S. Supreme Court denied certiorari.

Recent Prisoner Free Exercise Cases

In Elfand v. Sonoma County Men's Adult Detention Facility, 2011 U.S. Dist. LEXIS 63787 (ND CA, June 13, 2011), a California federal district court dismissed, but granted a motion to file an amended complaint, in a suit in which a Jewish inmate claimed that he was required to wait for over a month before being placed on the prison's kosher meal plan.

In Jones v. Lorady, 2011 U.S. Dist. LEXIS 64672 (MD PA, June 17, 2011), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that he was transferred from a prison in Pennsylvania to one in Virginia which refused to honor his religious exemption that allowed him to wear a beard.

In Palmer v. Rustin, 2011 U.S. Dist. LEXIS 65678 (WD PA, June 21, 2011), a Pennsylvania federal district court dismissed with leave to amend a Muslim prisoners claim that his free exercise rights were violated when on two occasions he was denied the right to attend religious services, apparently because of identification issues.

In Dobbins v. Cummins, 2011 U.S. Dist. LEXIS 65425 (MD AL, June 20, 2011), an Alabma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 65724, May 23, 2011) and dismissed an inmate's complaint that his rights were violated by prison policy that bars inmates assigned to the prison health care unit from attending church services. Prison authorities said the purpose of the ban was to protect the health of all inmates.

In Kohn v. Coleman, 2011 U.S. Dist. LEXIS 63960 (D SC, June 6, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66009, May 4, 2011) and dismissed an inmate's complaint that while his dorm was on cell restriction for two days, he was not allowed to attend religious services. Plaintiff had asked for $30,000 in damages.

In Muhammad v. Sisto, 2011 U.S. Dist. LEXIS 66445 (ED CA, June 21, 2011), an inmate sued claiming that prison officials prevented him from fasting for Ramadan.  A California federal magistrate judge recommended that plaintiff's in form pauperis status be revoked because he had filed nearly a dozen previous actions that had been dismissed as frivolous or for failure to state a claim. Under the recommendation, unless plaintiff pays the filing fee, the complaint in the current case will be dismissed.

In Porter v. Beard, 2011 U.S. Dist. LEXIS 66371 (WD PA, June 22, 2011), a Pennsylvania federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 66374, May 19, 2011) and permitted an inmate to move ahead with a claim that during a cell search a prison guard improperly handled his Native American Medicine Bag and threw its contents into a garbage bin.

In Frohwerk v. Armstrong, 2011 U.S. Dist. LEXIS 67504 (ND IN, June 20, 2011), an Indiana federal district court dismissed an inmate's complaint that on one occasion he was woken up by a correctional officer who told him: "Get up and go to church if you want to eat, because there ain't no lunch today! . . . Go get your cookies!" The court said that this type of isolated incident does not amount to a 1st Amendment violation.

Court Upholds Denial of Tax Exemption to Meditation Healing Center

In Self Realization Meditation Healing Centre v. Charter Township of Bath, (MI App., June 21, 2011), a Michigan appellate court agreed with the state's Tax Tribunal that a Self Realization Healing Centre is not entitled to either a charitable or a religious tax exemption. It concluded that the organization was not "organized chiefly for charity," finding that its organizational documents reflect "an all-encompassing purpose to help people with life in general."  It also concluded that the property failed to qualify for an exemption that was available for premises "used predominantly for religious services or for the teaching of religious truths and belief." The court said:

There are several purposes and statements in Self Realization’s documentation. These include meditation, stress relief, using energy in a beneficial way, enjoying quiet time, and walking through the woods. While Self Realization does engage in teaching of some beliefs, it is at least equally engaged in teaching practices (yoga and meditation).

Autopsy Without Consent Did Not Violate Free Exercise Protections

Thompson v. Robert Wood Johnson University Hospital, 2011 U.S. Dist. LEXIS 63980 (D NJ, June 15, 2011),  is a lawsuit against two doctors, a hospital, and state medical school (the doctors' employer) for their role that resulted in  an autopsy being performed on a 24-week severely deformed fetus without consent of the mother whose pregnancy was terminated, or her husband.  The parents were asked to participate in a research program on skeletal dysplasia, but agreed only to x-rays and not to the autopsy that was performed. Among the claims asserted, the mother contended that her free exercise rights were violated because the autopsy disrespected her Jewish religious beliefs and obstructed her ability to practice her religion.  A New Jersey federal district court held first that the doctors involved, though employed by a public entity, were not acting under color of state law. The court went on to say the even assuming the doctors were acting under color of law, there is no showing that their motivation was to infringe on plaintiff's religious sensibilities.  According to the court, the Supreme Court has made it clear that "the motivation behind a challenged government action is key to determining whether a constitutional violation has occurred."

Vatican-Montenegro Sign Agreement On Church-State Relations

AP reports that yesterday the Vatican and the nation of Montenegro signed an agreement guaranteeing the legal status in Montenegro of the Catholic Church and its institutions.  The agreement covers the operation of seminaries, and Catholic spiritual assistance in the armed forces, prisons and hospitals. This is the first agreement between the Vatican and a predominately Orthodox country that covers church-state relations.

New Blog Focuses on Abuse By Charity Regulators

A new blog, Charity Regulator Watch, has joined the blogosphere.  As reported by the Washington Examiner, the new blog's creator, Mark Fitzgibbons, comes at this new enterprise with a point of view.  He believes that state regulators charged with overseeing charities and non-profits often overreach and misuse their power. Explaining his mission, Fitzgibbons says: "charitable solicitation laws divert more than $500 million in donor money each year from its intended purposes." A link to Charity Regulator Watch has been added to the Religion Clause sidebar.

New York Legalizes Same-Sex Marriage With Lengthy Exemptions For Religious Organizations

Late last night, the New York state Senate voted 33-29 in favor of A8354, the bill passed earlier this month by the state Assembly legalizing same-sex marriage.  Then the Assembly and Senate both passed A8520 which expanded the protections for churches, religious organizations and clergy who object to same-sex marriage.   Gov. Cuomo immediately signed both bills into law. The New York Times has extensive coverage of the politics behind the governor's successful campaign to obtain passage of the legislation, reporting:

The story of how same-sex marriage became legal in New York is about shifting public sentiment and individual lawmakers moved by emotional appeals from gay couples who wish to be wed.

But, behind the scenes, it was really about a Republican Party reckoning with a profoundly changing power dynamic, where Wall Street donors and gay-rights advocates demonstrated more might and muscle than a Roman Catholic hierarchy and an ineffective opposition.

And it was about a Democratic governor, himself a Catholic, who used the force of his personality and relentlessly strategic mind to persuade conflicted lawmakers to take a historic leap.

The expanded religious protections were an important factor in obtaining final passage.  The protections apply to several categories of organizations and their employees: (1) religious entities, such as churches; (2) "benevolent orders", such as the Knights of Columbus; (3) any non-profit corporation operated, supervised or controlled by a religious corporation; (4) any employee of these organizations.

For these groups, notwithstanding any state or local law or regulation, they are not required to provide accommodations, facilities, goods or services for any marriage ceremony. Nor is any member of the clergy required to perform a same-sex marriage ceremony.  Refusal to provide facilities or perform a ceremony will not give rise to any civil claim or to any governmental action discriminating against the groups or clergy or imposing a penalty or withholding benefits.  The new law also assures religious organizations that provisions in New York's anti-discrimination law that allow them to favor members of their own religion in employment, sales, rental of housing, admission or other preferences and to take other action to promote their religious principles, are still in effect.

The new law does not create exemptions for individuals with religious objections who own private businesses that offer their facilities for weddings to refuse to make them available for same-sex ceremonies.

Amended Gay Marriage Bill With Expanded Religious Exemptions Introduced In New York

The Wall Street Journal reports that Gov. Andrew Cuomo and lawmakers introduced an amended version of the same-sex marriage bill (full text)  into the state legislature today. The new version expands protections for religious organizations and clergy that object to same-sex marriage. Backers hope this will be enough to convince at least one more member of the state Senate to vote in favor of the bill and thereby secure its passage.  The prior version of the bill, already passed by the state Assembly, had somewhat less comprehensive exemptions in it, and Senate Republicans had been seeking this expansion. (See prior posting.)

Israel's High Court Recognizes Civil Marriage By Proxy

Israel's High Court of Justice this week recognized a new route for Israeli's to enter a civil marriage.  Generally marriages in Israel must be performed by religious authorities, though individuals may travel abroad for a civil marriage which will then be recognized in Israel.  For Jewish Israelis, this has meant that the Orthodox rabbinate controls marriage in the country.  Haaretz reports that the High Court has now approved the marriages of 14 couples who were married by proxy in El Salvador without ever leaving Israel. Most of the marriages involved one partner who was a foreign worker or tourist who were concerned that they could not obtain re-entry if they left the country.  The Salvadoran procedure requires elaborate documentation and the hiring of two proxies to stand-in for the parties in El Salvador and two witnesses. Up to now, the only non-religious alternative available inside Israel has been civil union where both parties to the marriage have no religious affiliation. (See prior posting.)

Court Says Abused Plaintiffs Can Seek Punitive Damages Against Jesuit Order

In Doe v. Chicago Province of the Society of Jesus, (Cook Co. IL Cir. Ct., June 22, 2011), an Illinois state trial court judge has allowed three plaintiffs who claim they were sexually abused by now-defrocked Jesuit priest Donald McGuire to file an amended complaint seeking punitive damages against the priest's Jesuit order.  The court reviewed The court wrote:

There can be no question that a religious organization can be found liable for punitive damages, if it has recklessly permitted an unfit employee or agent to sexually abuse minors with knowledge of his propensity to do so....

The court accepts that the Jesuits are a religious order with a rich history of service to the faithful.... However, the leaders of the Chicago Province fell far short of this ideal.  Plaintiffs have amply demonstrated a reasonable likelihood of proving facts at trial which would support an award of punitive damages.

SF Weekly reports on the decision.

Minister of Cannabis Church Sentenced To Prison On Drug Charges

In Franklin County, Pennsylvania on Wednesday, Robert Henry, a member of of the Hawaii Cannabis Ministry, was sentenced from 6 1/2 to 13 years in prison for directing marijuana growing from jail in 2010 when he was serving another sentence for drug violations. This time Henry was also fined $50,500 and ordered to go through a drug treatment program. Chambersburg (PA) Public Opinion reports that Henry claims he is being persecuted because of his religious beliefs.

Oregon Federal Judge Confirmed Over Objections To His Church-State Views

On Tuesday, the U.S. Senate, by a vote of 64-35, confirmed the nomination of Michael Simon as federal district judge for the district of Oregon. As reported by the Oregonian, Simon was originally nominated in 2010 and was approved by the Senate Judiciary Committee. However the full Senate never voted on the nomination. President Obama renominated Simon this year and he was again approved by the Judiciary Committee by a vote of 14-4. The opposing votes were all from Republicans.  Simon is a cum laude graduate of the Harvard Law School, worked for the Justice Department and then joined a Portland law firm. However Republican opposition to his nomination stemmed from Simon's long association with the ACLU.  Here, from the debate in the Congressional Record, are excerpts from Senator Charles Grassley's speech on the Senate floor that focused in large part on Simon's church-state views:

Throughout his career, Mr. Simon has advocated on behalf of the American Civil Liberties Union of Oregon as a pro bono attorney. But his involvement in the ACLU goes beyond mere representation of a client. Mr. Simon has been a member of the ACLU of Oregon since 1986. He is an active member of their Lawyers’ Committee and served as a board member from 1997 to the year 2004, the vice president for legislation 1997 to 1998, and vice president for litigation from 2000 to 2004....

The ACLU does hold very liberal views, and Mr. Simon has been the voice for those views. For example, Mr. Simon wrote a letter to the Tillamook County Courthouse in Oregon expressing the ACLU’s concern with religious Christmas signs and decorations. The letter encouraged the county to repeal its resolution that deemed the county a ‘‘Merry Christmas County.’’

On issue after issue, Mr. Simon refused to disassociate himself from legal and policy positions held by the ACLU,that are far outside the mainstream. This includes the legalization of drugs, the unconstitutionality of the death penalty, the unconstitutionality of the Pledge of Allegiance, the ACLU’s opposition to tax exemptions for churches and extreme views regarding separation of church and state.....

Mr. Simon appears to demand an absolute wall of separation between church and state, as opposed to the U.S. Government promoting a specific religion. He has argued against religious displays on public land, against religious visitors to schools, against a coach praying with his football players. I assume that means even if you’re praying that they don’t get injured. Mr. Simon has argued that it is unconstitutional under the establishment clause to teach intelligent design in public school science classes.

British Schools Stop Teaching Religious Education As They Emphasize Ebacc Subjects

The Guardian reports today that a poll by the National Association of Religious Education Teachers shows that 25% of state secondary schools and 31% of state elementary schools in Britain are no longer teaching religious education, even though the law requires them to do so.  Offerings religious education have dropped off since schools have begun to be graded on student achievement in five English Baccalaureate (Ebacc) subjects: English; math; science; history or geography; and foreign language. (See prior related posting.)

Geert Wilders Acquitted of Defaming and Inciting Hatred Against Muslims

Dutch right-wing politician Geert Wilders was acquitted by an Amsterdam court yesterday of charges of group defamation against Muslims, and incitement to hatred and discrimination against Muslims based on their religion and race. Radio Netherlands reports on the verdict. At issue were statements made by Wilders on websites, Internet forums, Dutch newspapers and his film Fitna. (See prior posting.) An English translation of the court's press release on the case presents more details on the verdict.  The court held that criticism of a religion is permissible.  It went on to conclude that certain statements that might be seen as incitement to discrimination nevertheless are allowed "because of the context of the public debate" in which Wilders spoke "as a politician."  At the time the statements were made, problems of a multicultural society and immigration were being discussed.  Wilders statements "raised public problems" and "do not cross criminal legal boundaries."  Prosecutors had previously attempted to dismiss the charges on free speech grounds, but an appeals court ordered the prosecution to move ahead. (See prior posting.)  Now lawyers for those who filed complaints against Wilders are considering taking the case to the United Nations Human Rights Council or to the European Court.

In an op-ed in today's Wall Street Journal, Wilders reacts to his acquittal, saying in part:

Yesterday was a beautiful day for freedom of speech in the Netherlands. An Amsterdam court acquitted me of all charges of hate speech after a legal ordeal that lasted almost two years. The Dutch people learned that political debate has not been stifled in their country. They learned they are still allowed to speak critically about Islam, and that resistance against Islamization is not a crime.

DC Circuit Upholds Ban On Anti-Abortion Chalking Protest In Front of White House

In Mahoney v. Doe, (DC Cir., June 21, 2011), a 3-judge panel of the U.S. Court of Appeals for the D.C. Circuit upheld the constitutionality of D.C.'s Defacement Statute that, among other things, prohibits writing or drawing on public property without the consent of the person in charge of the property.  Plaintiffs were denied permission to carry out an anti-abortion sidewalk chalk demonstration in front of the White House.  The court rejected both overbreadth and "as applied" free expression challenges.  Focusing on the "as applied" challenge, the court said :

[T]he Defacement Statute is content neutral, and substantially justified by the District’s esthetic interest in combating ...the defacement of public property. Because the District did not curtail Mahoney’s means of expression altogether, and allowed him to protest in front of the White House in other ways, the Defacement Statute is not unconstitutional as applied.

The court also rejected plaintiffs' claim that enforcing the statute against them violates the Religious Freedom Restoration Act because their protest was religiously motivated.  The court quoted prior precednt that held:

to make religious motivation the critical focus is . . . to read out of RFRA the condition that only substantial burdens on theexercise of religion trigger the compelling interest requirement.

Judge Kavanaugh also wrote a concurring opinion, declaring: "No one has a First Amendment right to
deface government property." (See prior related posting.)

French Fashion Designer On Trial For Anti-Semitic Tirade

AP reported yesterday that the trial of former Dior fashion designer John Galliano began yesterday. Galliano is charged with hurling anti-Semitic and racist remarks at strangers on two different occasions in a Paris cafe. French prosecutors are asking that Galliano be fined the equivalent of $14,400(US). Galliano says he remembers nothing of what he allegedly said. He was in the throes of serious alcohol and drug addiction at the time. (See prior related posting.)

Canadian Soccer Organization Says 15-Year Old Referee Cannot Wear Hijab

In Canada, Quebec's Soccer Federation has told a 15-year old Muslim girl that she cannot continue her summer job as a soccer game referee wearing her hijab (head scarf). Canadian Press reported yesterday that teenager Sarah Benkirane hopes to convince the Canadian Soccer Federation to put pressure on its  Quebec affiliate. The Quebec Federation says it is merely applying FIFA rules that bar officials from displaying personal, religious or commercial messages.

Lawsuit Challenges San Francisco Circumcision Ballot Measure

A lawsuit was filed in state court in California yesterday challenging the San Francisco ballot measure that seeks to ban circumcision.  The Los Angeles Jewish Journal reports that, while much attention has been directed to religious freedom concerns, this suit is based on a California Business and Professions Code, Sec. 460 which provides:

No city, county, or city and county shall prohibit a healing arts professional licensed with the state under Division 2 (commencing with Section 500) from engaging in any act or performing any procedure that falls within the professionally recognized scope of practice of that licensee.

Plaintiffs in the lawsuit include two Jewish community organizations, three Jewish families, one Muslim family and two doctors.  They allege that it would be misleading to include the proposal on the ballot if the city lacks the power to enact it.

UPDATE: Here is the full text of the complaint in Jewish Community Relations Council of San Francisco v. Arntz, (CA Super. Ct., filed 6/22/2011).