9th Circuit Lifts Stay On Injunction Against "Don't Ask, Don't Tell"

Yesterday in Log Cabin Republicans v. United States, (9th Cir., July 6, 2011), the U.S. 9th Circuit Court of Appeals lifted a stay it had previously granted in the appeal of a challenge to the constitutionality of the military's "Don't Ask, Don't Tell" policy.  Last October, a California federal district court found the policy unconstituitonal and permanently enjoined its enforcement.  (See prior posting.)  In November, the 9th Circuit issued an order staying the injunction pending appeal. The U.S. Supreme Court refused to vacate the stay.  Then in December, Congress passed and the President signed a law repealing "Don't Ask, Don't Tell", but providing that the policy will not end until 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. (See prior posting.)  In yesterday's decision lifting the stay, the court said:

Appellants ... state that the process of repealing [DADT] is well underway, and the preponderance of the armed forces are expected to have been trained by mid-summer. The circumstances and balance of hardships have changed, and appellants ... can no longer satisfy the demanding standard for issuance of a stay.

CNN, reporting on yesterday's decision, quotes a Pentagon spokesman as saying that the statutory certification was just weeks away anyway. He added that the military "will of course comply with orders of the court, and are taking immediately steps to inform the field of this order."

Georgian Parliament Permits Minority Religions To Register As Legal Entities

According to Civil.ge, the parliament of the nation of Georgia yesterday passed amendments to the civil code that will allow minority religious groups to register as legal entities. 83.9% of Georgia's population are followers of Orthodox Christianity-- primarily the Georgian Orthodox Church. (Wikipedia.) The final version of the law allows religious groups having "close historic ties" with Georgia, as well as religious groups recognized by Council of Europe member states, to choose to become either a private law entities or public law entities.

A senior cleric of the Georgian Orthodox Church suggests that the rapid passage of the new legislation is a victory for the Armenian Apostolic Church which has been unable to reach an agreement directly with the Georgian Orthodox Church over disputed ownership of several church buildings in Georgia. Lawmakers failed to include in the final bill a provision requiring the government to negotiate with foreign countries over the status of Georgian Orthodox churches in those nations.

A second report by Civil.ge today indicates that a number of opposition parties, supporting the Georgian Orthodox Church, are urging President Saakashvili to veto the law, or to at least declare Orthodox Christianity as the official state religion.

Charges Against Santero Dropped As Prosecutors Examine Free Exercise Issues

Utah prosecutors have dropped, at least temporarily, two charges of desecration of a human body that had been brought against a Santeria clergyman (santero). According to yesterday's Salt Lake Tribune, last week prosecutors asked a state court judge to dismiss the case without prejudice while they investigated further the constitutional free exercise of religion issues involved.  In March, a Narcotics Strike Force, insted of finding drugs, found hundreds of pounds of animal remains as well as two human skulls at the Clearfield (UT) home of Roberto Casillas-Corrales.  Apparently the two human skulls were purchased by the santero for $3500.

Australian State Government Backs Bill To Require Removal of Burqa In Police Stops

In the Australian state of New South Wales, the cabinet of Premier Barry O'Farrell has approved for introduction into Parliament later this year a law that will allow police to require motorists or others to remove face coverings, such as a burqa or niqab, if police have reasonable ground to believe that a violation of law or breach of security may have occurred. The Australian reported yesterday that the move comes after a highly publicized incident in which a conviction for filing a false police report was overturned because it could not be shown that the defendant was the burqa-wearing woman who filed the report. The report falsely accused police of trying to tear off the woman's burqa when she was stopped for a random traffic breath test. (See prior posting.) Under the proposed new law, refusal to remove a face covering could lead to a sentence of up to 12 months in jail.

Mexican Electoral Tribunal Orders Sanctions Against Catholic Archdiocese

According to yesterday's National Catholic Reporter, Mexico's Federal Electoral Tribunal issued a ruling on July 1ordering the country's Interior Ministry to sanction the Catholic Archdiocese of Mexico City for critical comments made by the Archdiocese's spokesman last August.  The Tribunal found that comments urging Catholics vote against political parties that support more liberal abortion laws and same-sex marriage violated  Mexico's electoral code. The Electoral Tribunal pointed to the need to keep church and state separate.  Mexico's Interior Ministry is responsible for regulating religious associations, but it is unclear whether the Electoral Tribunal has jurisdiction to order the Interior Ministry to take action.  The Archdiocese plans to appeal.

Contradicting Earlier Report, News Story Says Iran's High Court Overturned Apostasy Death Sentence

Contradicting an AKI report on Friday that was noted on Religion Clause, Christian News Today reported yesterday that Iran's Supreme Court has overturned the death sentence for apostasy imposed by a lower court on Christian pastor Yousef Nadarkhani.  Nadarkhani converted from Islam to Christianity at age 19 and became the pastor of the small evangelical Church of Iran, part of a house church network. The case has been remanded to the lower court in the town of Rasht, and Nadarkhani has been asked to repent and renounce his conversion.  Also contradicting the earlier report, Christian News Today says that Nadarkhani was arrested after protesting a government decision to teach Islam to Christian students in schools.

Meanwhile, Nadarkhani's lawyer, Mohammad Ali Dadkhah says he has been sentenced to 9 years in jail and a ten year ban on practicing law or teaching at a university for "actions and propaganda against the Islamic regime." He has 20 days to appeal.

Houston Military Cemetery Charged With Barring Religious Speech At Funerals

As previously reported, just before Memorial Day, a Texas federal district court issued a temporary restraining order preventing the Department of Veterans Affairs from regulating the content of the invocation and benediction that were to be delivered at a Memorial Day ceremony in Houston's National Cemetery. A month after that order was issued, plaintiffs filed an amended complaint expanding their allegations. The new charges have been widely reported on the Internet after a June 28 press release from Liberty Institute was headlined: "VA Bans Mention of God at Funerals for Vets!".  Click2Houston reported that yesterday yesterday 200 protesters showed up at the cemetery chanting "God bless America", accusing cemetery director Arleen Ocasio of banning the names of God and Jesus from funeral services.

The amended complaint (full text) in Rainey v. U.S. Department of Veterans Affairs, (SD TX, filed 6/27/2011), focuses on four separate allegations: (1) VFW and American Legion burial rituals which can be requested by families can no longer include a prayer unless the family first submits the prayer in writing for approval by the cemetery director; (2) A private funeral home was told that it could not inform military families of their option to have the VFW chaplain deliver a prayer by submitting the prayer first for approval; (3) The National Memorial Ladies were told that condolence cards they hand out to families at military funerals cannot contain a religious message, nor should a religious message be spoken to the family when delivering the card; and (4) The cemetery chapel has been closed and turned into a meeting facility. Here are the cemetery's written guidelines for military funerals.

Indian Politicians Arguing Over What To Do With Temple's Newly Discovered Wealth

In India, unexpected treasure estimated to be worth $11 billion found in underground vaults of a temple in Kerala state is leading to a growing political controversy. Various aspects of the story are reported in recent days by the Global Post, the Khaleej Times, and Live Mint. The present situation began with a dispute in 2007 over who had the right to manage the Sree Padmanabhaswamy temple. The temple was built in the 16th century by the royal family of the kingdom of Travancore. After Indian independence in 1947, Travancore eventually became part of Kerala. In January of this year, the Kerala High Court held that the state government should take over administration of the temple from the royal trust that had been managing it.  An appeal to India's Supreme Court led to an order for an audit of the temple's assets-- including opening of vaults that have been closed for many decades.  Politicians from parties representing lower caste Hindus are urging that the wealth now found through that audit be applied for public welfare projects. However other parties oppose that idea.  The United Democratic Front that holds a 2-seat majority in Kerala's 140-member parliament is considering introducing legislation to preserve the right of the royal family to maintain its control of the temple and its assets.

Religion Clause Is Now On Facebook

Religion Clause now has its own page on Facebook.  If you would find it convenient to receive links to Religion Clause postings through your Facebook account, you can connect through the "Like" button at the bottom of the Religion Clause side bar.

L.A. Freeway Project Creates Challenge For Maintaining Eruv

Today's Los Angeles Times reports on the cooperation between highway construction personnel and the Los Angeles Jewish community in dealing with the unusual problems posed by the widening of the 405 Freeway.  The western boundary of the large eruv in Los Angeles is this freeway. (Map of eruv.) An eruv is a symbolic enclosure of an area that permits observant Jews within it to carry items on the Sabbath.  Much of the eruv consists of freeway fences or the freeway itself. However freeway widening has resulted in numerous breaches in fences and freeway walls-- all of which volunteers who maintain the eruv must keep track of and replace by, for example, stringing fishing line on 15-foot poles.

More Recent Prisoner Free Exercise Cases

In Hall v. Ekpe, (2d Cir., July 1, 2011), the Second Circuit dismissed RLUIPA claims by a Muslim prisoner who who was excluded from Ramadan activities because the prison chaplain did not identify him as an observant Muslim.  The court held that damage claims in plaintiff's official capacity lawsuit were precluded by a recent U.S. Supreme Court decision, and damages in his individual capacity claims were precluded by defendants' qualified immunity.

In Taylor v. Louisiana Correctional Service, Inc., 2011 U.S. Dist. LEXIS 69389 (WD LA, June 28, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist LEXIS 69400, May 17, 2011), rejecting a claim that the lack of a Muslim chaplain in a prison violated plaintiff's free exercise rights and his rights under RLUIPA.

In Hampton v. Ayers, 2011 U.S. Dist. LEXIS 69792 (CD CA, June 28, 2011), a California federal district court accepted a magistrate's recommendations (2011 U.S. Dist. LEXIS 69742, June 2, 2011) and dismissed an inmate's claims that various correctional officials burdened the practice of his religion by allowing Muslim inmates to hold religious services only if they are supervised and then failing to provide supervision. He also objected to an instance in which officers interfered with a religious service in progress.

In Carter v. Lappin, 2011 U.S. Dist. LEXIS 70300 (D AR, June 1, 2011), an Arkansas federal magistrate judge dismissed claims brought against the director of prisons claiming that on one occasion lower ranking  prison officials had served sausage containing pork to inmates without identifying it as such.  Mistakenly eating this violated plaintiff's religious beliefs.

In Blakely v. Wards, 2011 U.S. Dist. LEXIS 70280 (D SC, May 20, 2011), a South Carolina federal magistrate judge recommended dismissing a Muslim inmate's claims that prison chaplains have discriminated against Muslims by giving Christian inmates more access to the prison chapel. He also alleged disparities between the Christian and Muslim inmates as to food, religious books, goods, and money.

Recent Articles of Interest

From SSRN:

• Sarah Beresford, Seeking Secularism: Resisting Religiosity in Marriage and Divorce- A Comparative Study of England and America, (Web JCLI, Vol. 3, 2011).
• Girjesh Shukla, Law, Religion and State: Constitutional Discourse and Judicial Interpretation, (2011).
• Howard Kislowicz, Richard Haigh and Adrienne Ng, Calculations of Conscience: The Costs and Benefits of Religious and Conscientious Freedom, (Alberta Law Review, Vol. 48, No. 3, 2011).
• David Bilchitz, Should Religious Associations Be Entitled to Discriminate?, (South African Journal of Human Rights, Vol. 2, 2011).
• Mariana Ardila Trujillo, Hacia La Resolución De Los Conflictos Entre La Protección De La Diversidad Cultural Y El Reconocimiento De Los Derechos De Las Mujeres (Toward the Conflict’s Resolution between the Protection of the Cultural Diversity and the Recognition of the Women´s Rights), (Revista Derecho del Estado, No. 26, 2011).
• Alejandro Rosas Martinez, Algunas Implicaciones Jurídicas Del Matrimonio Entre Personas Del Mismo Sexo En La Ciudad De México (Some Juridical Implications of the Same Sex Persons Marriage at México City), (Revista Derecho del Estado, No. 26, 2011).
• Sara Weinrib, An Exemption for Sincere Believers: The Challenge of Alberta versus Hutterian Brethren of Wilson Colony, (McGill Law Journal, Vol. 56, No. 3, pp. 719-750, 2011).
• Mark Strasser, Same-Sex Marriage and the Right to Privacy, (Journal of Law and Family Studies, Vol. 13, pp. 117-150, 2011).
• Wladimyr Mattos Albano, The Constitutional Immunity to Temples of Any Cult in the Municipalities and Their Interpretation, (Revista Brasileira de Direito Tributário e Finanças Públicas, Vol. 4, No. 22, p. 25, 2010).

From bepress:

• Anke I. Bouzenita, The Principle of Neutrality and “Islamic International Law” (Siyar), Global Jurist: Vol. 11: Iss. 1 (Advances), Article 4 (2011).

From SmartCILP:

• Barbara Oomen, Between Rights Talk and Bible Speak: The Implementation of Equal Treatment Legislation in Orthodox Reformed Communities in the Netherlands, [Abstract], 33 Human Rights Quarterly 175-200 (2011).
• Frederick V. Perry, The Corporate Governance of Islamic Banks: A Better Way of Doing Business?, 19 Michigan State Journal of International Law 251-277 (2011).

Recent Prisoner Free Exercise Cases

In Ayotte v. McPeek, 2011 U.S. Dist. LEXIS 67913 (D CO, June 24, 2010), a Colorado federal district court held that an inmate's exercise of his religious beliefs was not substantially burdened by delay in maintaining his hearing aids and in not providing sign language interpreters at two Catholic religious studies classes he attended.

In Avery v. Thompson, 2011 U.S. Dist. LEXIS 68100 (ND CA, June 24, 2011), a California federal district court rejected both plaintiff's and defendants' motions for summary judgment in a suit challenging prison official's confiscation of 265 pamphlets from an inmate who says he is a believer in the Wotanism faith. Prison officials claim the pamphlets are neo-Nazi literature. The court referred the case to the Pro Se Prisoner Settlement Program.

In Jackson v. St. Laweence, 2011 U.S. Dist. LEXIS 68860, (SD GA, June 27, 2011), a Muslim inmate
sought an injunction requiring the jail to provide a separate Muslim unit similar to two Christian Dorm units; an area for Muslims to offer their obligatory five Salat prayers daily; an extra blanket for prayer and towel to cover the urinal for Muslims; and a place for Friday Al Jumu'ah prayers. He also sought $2 million in damages. A Georgia federal magistrate judge dismissed plaintiff's pain and suffering damage claim but permitted him to move ahead with the remainder of his claims. However the court also required plaintiff to pay filing fees on an installment basis from his prison account.

In Newberg v. Geo Group, Inc., 2011 U.S. Dist. LEXIS 68955 (MD FL, June 27, 2011), a Florida federal district court dismissed as moot claims by a follower of a Native American religion regarding restrictions at a civil commitment center that previously prevented the sacred pipe ceremony and smudging.  The court rejected plaintiff's challenge to the lack of a sweat lodge and fire pit.

In Lee v. Johnson, 2011 U.S. Dist. LEXIS 69509 (WD VA, June 28, 2011), a Virginia federal district court   rejected a challenge by an inmate who belonged to the House of Yahweh faith to prison rules that allowed group worship only if there are at least 5 inmates who express an interest in congregate services.  The court also rejected other claims against the prison chaplain for failing to procure House of Yahweh religious material and failing to post a sign-up sheet for House of Yahweh services.

In Kwanzaa v. Mee, 2011 U.S. Dist. LEXIS 69531 (D NJ, June 28, 2011), a New Jersey federal district court dismissed free exercise claims by a Muslim inmate who alleged that during Ramadan, he did not receive the same 2200 calorie diet that non-Muslims received, that on two dates he was hindered from calling the Islamic call to prayer and that corrections officers referred to him by his birth name instead of his religious name.

In Christensen v. Schwarzenegger, 2011 U.S. Dist. LEXIS 69209 (ED CA, June 27, 2011), a California federal magistrate judge dismissed, with leave to file an amended complaint, a claim that prison officials failed to provide Wiccan inmates with appropriate religious space for their worship services. Plaintiff failed to connect the named defendants to the claimed free exercise violations.

Sex Offender Registration Law Does Not Infringe Free Exercise Rights

In Doe v. Virginia Department of State Police, 2011 U.S. Dist. LEXIS 68939 (ED VA, June 27, 2011), a Virginia federal district court rejected a free exercise claim brought by a woman who was required by state law to register as a sex offender.  Under the law, a registered sex offender needs to obtain special permission in order to enter premises that house young children-- including churches with adjoining daycares.  The court concluded, however, that this is not a free exercise violation since the registration law is neutral and generally applicable and these collateral effects on church attendance were not the purpose of the registration law.

Philippine Officials Suggest Government Lottery Donations To Catholic Church Were Unconstitutional

This week end, the Philippine Star, the Manila Sun Star, and the Philippine Daily Inquirer are all reporting on disclosures by new management of the Philippine Charity Sweepstakes Office that six Catholic dioceses and another Catholic organization in 2008 and 2009 received the equivalent of over $175,000 (US) from the government-run lottery agency that supports health and general welfare activities. The Philippine House of Representatives is planning hearings to determine if the grants violate provisions of the Philippine Constitution that call for the separation of church and state (Art. I, Sec. 5) and that ban the use of government funds to benefit any religious organization (Art. VI, Sec. 29). The funds were allegedly used to buy SUV's-- Mitsubishi Pajeros-- for bishops of each of the seven recipients. The SUVs are apparently used in church-run medical and relief operations serving outlying areas. Today's Manila Bulletin quotes 4 bishops who say their vehicles did not come from PCSO funds. At least one bishop has suggested that the government may be targeting the Catholic Church because of its strong opposition to the Philippines' controversial reproductive health bill.

Iran's Supreme Court Upholds Death Penalty In Apostasy Case [UPDATE: Report Contradicted]

According to a report on Friday by AKI, Iran's Supreme Court has upheld the death sentence imposed on Christian priest Yousef Nadarkhani who was convicted last December on apostasy charges-- converting from Islam to another religion.  Nadarkhani was born to a Muslim family but denies he was ever a Muslim. He was arrested in October 2009 while attempting to register his evangelical church in the city of Rasht.

UPDATE: A July 4 report by Christian News Today contradicts the AKI report and says that the Supreme Court overturned Nadarkhani's death sentence. See this posting for more details.

Suit Challenges Indiana School Voucher Program

On Friday, a group of 12 plaintiffs filed suit in an Indiana state court to challenge Indiana's recently enacted Choice Scholarship program that will provide vouchers to students from families whose income does not exceed 150% of the amount to qualify for the federal free lunch program. Numbers of participants are limited in the first two years.  AP reports that the plaintiffs challenging the law include a former Indiana State School Board of Education member, a public school teacher, and a retired minister who is the father of a federal appeals judge.  The suit contends that the program violates state constitutional provisions that bar the use of tax funds for religious institutions and which require a general and uniform system of common schools.Most of the 352 private schools where vouchers can be used are affiliated with churches or other religious institutions.

San Francisco City Attorney's Office Says Narrow Circumcision Ban Would Be Unocnstitutional

As previously reported, a lawsuit was filed in state court in California last month by Jewish and Muslim families and two doctors attempting to prevent a proposed ban on circumcision from appearing on the November ballot in San Francisco. The lawsuit argues that the city ordinance would be pre-empted by state law that bans cities from regulating state-licensed physicians.  Now, responding to the lawsuit, the Office of the San Francisco City Attorney announced that it has filed a brief with the court contending that if the plaintiffs prevail, the resulting ordinance that would apply only to religious circumcisions performed by non-physicians will be unconstitutional. Chief Deputy City Attorney Therese Stewart said:

Especially in light of disturbing campaign materials that evoke the ugliest kind of anti-Semitic propaganda, the City has an obligation to petition the Court to remove the measure from the ballot in its entirety if it is preempted as applied to medical professionals. San Franciscans cannot be asked to vote on whether to prohibit religious minorities from engaging in a particular religious practice, when the same practice may be performed under non-religious auspices.

Police Enforcement of Trespass Notice Against Pastor Is Not Free Exercise Violation

Spanish Church of God of Holyoke v. Scott, 2011 U.S. Dist. LEXIS 70187 (D MA, June 20, 2011), involves a lawsuit against the city of Holyoke, Massachusetts and its police chief by a local congregation, the Spanish Church of God; its clergyman, Bishop Juan Garcia; and the parent organization of the congregation, Church of God International, Inc.  Some church members disagreed with the appointment of Garcia as interim pastor, and this led to heated discussions between Garcia and them. The church's board of directors-- or at least persons claiming to be the board-- had their attorney issue a Notice of Trespass to Garcia. One day later, a member of the board called Holyoke police complaining that Garcia was trespassing. Police responded to the call, but ultimately took no action because they decided that the matter was a civil dispute to be resolved between the parties.  However plaintiffs sued claiming that the city and the police chief violated their free exercise rights by enforcing the Notice of Trespass. They contended that police were required to honor the determination by the church's parent body that Garcia was to be its pastor.  The court held, however, that "Chief Scott, in enforcing a valid trespass notice, did not encroach on the protections afforded religious institutions with regard to internal organizational disputes."

Delaware County Sued Over Lord's Prayer At Council Meetings

In Sussex County, Delaware on Thursday, four county residents filed a federal lawsuit against the county council and its president challenging the practice of consistently opening Council meetings with the recitation of the Lord's Prayer.  The complaint (full text) in Mullin v. Sussex County, Delaware, (D DE, filed 6/30/2011), alleges that the practice violates the Establishment Clause of the U.S. Constitution as well as the "no preference" clause of Delaware's constitution.  Americans United issued a press release announcing the filing of the law suit. [Thanks to Don Byrd for the lead.]