Restaurant Wins in Employee's Religious Accommodation Lawsuit

A jury in a Nueces County, Texas trial court yesterday ruled in favor of the restaurant chain, Texas Roadhouse, in a case in which a former employee charged religious discrimination.  According to a press release from defendant's attorneys, the employee claimed that management of the Corpus Christie (TX) Roadhouse forced him to work on Sundays in violation of his religious beliefs.  While the employee was given most Sundays off, he was required to work on Mothers Day and Fathers Day-- two of the restaurant's busiest days of the year.  He was fired for refusing to come in on Fathers Day 2008. Defendants claimed the employee abandoned his job and was not terminated.

Challenger Lacks Standing In Suit To Stop Ground Zero Mosque

The New York Times reports that a state trial court on Friday dismissed a lawsuit by a former fire fighter who is attempting to prevent the construction of an Islamic community center in lower Manhattan near "Ground Zero". (See prior posting.) Plaintiff Timothy Brown was attempting to overturn a decision by the New York City Landmark Preservation Commission that denied landmark status for the old Burlington Coat Factory building that will be destroyed to make space for the mosque and community center. The court concluded that Brown lacks standing to challenge the landmark decision despite his strong interest in the matter.

UPDATE: The full decision in Brown v. New York City Landmarks Preservation Commission, (NY Co. Sup. Ct., July 7, 2011) is now available online.

Sweden Refuses To Recognize Anti-Copyright Believers As A Religion

According to The Local, in Sweden last week the government's Legal, Financial and Administrative Services Agency rejected attempts of the Missionary Church of Kopimism (pronounced "copy me-ism") to register as a religious faith.  The church was started by the youth division of the Pirate Party, a political party founded in Sweden in 2006 to promote Internet file sharing and to protect people's online privacy. Kopimism contends that "the act of copying is sacred," opposing those who wish to enforce copyright restrictions.

What Will Be Religion-State Balance In New Egyptian Constitution?

Prof. Samer Soliman of the American University in Cairo yesterday published an article in Ahram Online analyzing the proposals of various groups involved in drafting a new Egyptian Constitution on what should be the relationship between religion and state in Egypt. He wrote in part:

Although many civic and human rights forces opposed Article 2 of the previous constitution (which states Islam is the religion of the state and Islamic Sharia the main source of legislation), because it discriminates against non-Muslims and is used by conservative powers to establish religious powers, various versions of the new constitution maintain this article in place. It seems that civic forces are now convinced that the large majority of Egyptian Muslims want this article to remain in place since it reflects the Islamic identity of the people.

This realistic acceptance of Article 2 of the previous constitution does not mean that the authors of the proposed constitutions are not trying to prevent this article from being used to establish a full-fledged religious state....

It is unlikely that Islamic forces will insist on creating an entity of religious scholars because it will be strongly opposed by the people, and it would be difficult to decide how to choose its members. It is more likely that Islamist forces will maintain Article 2 as it stands, but will reject clauses that give power to the army or judiciary to intervene to guarantee the civic character of the state. In such a case, we will return to where we were during the Mubarak era in terms of the relationship between state and religion, namely a quasi-civic state with religious overtones.

British Parliamentary Committee Hears From Faith Leaders On "Big Society" Program

A Select Committee in Britain's House of Commons is conducting hearings on the government's flagship "Big Society" initiative that is designed to create  a more socially active country in which citizens can  control functions and activities of local interest such as schools, pubs and community centers. (Issues and Questions Paper). There is now available on the House of Commons website a full transcript of the June 30 testimony on the relationship of the Big Society initiative and various faith groups.  Witnesses were Andrew Copson, British Humanist Association; Lord Jonathan Sacks, Britain's Chief Rabbi; Rt. Rev. Tim Stevens, Bishop of Leicester; and Charles Wookey, Assistant General Secretary of the Catholic Bishops' Conference of England and Wales.  The testimony was wide ranging.  For example, Bishop Stevens said:

I think we in the Churches need to be alert to the dangers and the possible devices that might be used to turn Churches into utilitarian deliverers of services, that we become, as it were, the means to a political end, whereas I think we see the pursuit of our religion as an end in itself-it has meaning in itself. Volunteering, serving others, reaching out to the poor, is not simply a device; it is the way in which human beings discover who we truly are. It is the means to human flourishing. That is what we want to hold as a vision before people and why we want to continue to participate in this conversation.

Recent Articles of Interest

From SSRN:

• Randy T, Simmons, Diana Weinert Thomas and Ryan Yonk, Bootleggers, Baptists, and Political Entrepreneurs: Key Players in the Rational Game and Morality Play of Regulatory Politics, (The Independent Review, Winter 2011).
• Steven Douglas Smith, The Constitution and the Goods of Religion, (San Diego Legal Studies Paper No. 10-059, 2011).
• Kang Chuen Tat Kang, Buddhist Legal Studies Experimentation for University-Approved Students and Professional Religious Organisations, (July 6, 2011).
• David M. Engel, 'The Spirits Were Always Watching': Buddhism, Secular Law, and Social Change in Thailand, Buffalo Legal Studies Research Paper Series No. 2012-01, (2011).
• Richard W. Garnett, The Political (and Other) Safeguards of Religious Freedom, (Cardozo Law Review, Vol. 32, p. 1815, 2011).
• Lawrence Rosenthal, The Law Professor as Counterterrorist Tactician, (Texas Law Review, Vol. 89, No. 1, 2010).

From SmartCILP and elsewhere:

• Shulamit Almog and Lotem Perry-Hazan, The Ability to Claim and the Opportunity to Imagine: Rights Consciousness and the Education of Ultra-Orthodox Girls, 40 Journal of Law and Education 273-303 (2011).
• Todd A. DeMitchell, Immorality, Teacher Private Conduct, and Adverse Notoriety: A Needed Recalculation of Nexus?, 40 Journal of Law and Education 327-339 (2011).
• Symposium: Islamic Law and Constitutional Liberty. Introduction by Robert A. Kahn; opening address by Keith Ellison; keynote addresses by John R. Bowen and Noah Feldman; articles by Imam Feisal Abdul Rauf, L. Ali Khan, Faisal Kutty, Asma T. Uddin, Clark B. Lombardi, Haider Ala Hamoudi and Russell Powell. 7 University of St. Thomas Law Journal 403-726 (2010).
• The July-August 2011 issue of Liberty: A Magazine of Religious Freedom has recently been posted online.

India's Draft Animal Welfare Bill Changed To Exempt Religious Slaughtering

With significant attention around the word being given to proposed legislation in the Netherlands that would ban halal and kosher slaughter of meat (see prior posting), India has taken steps to avoid a similar controversy. The Hindustan Times yesterday reported that India's environment ministry has made changes to the original draft of its proposed Animal Welfare Act 2011 to assure that it will not ban slaughter of animals as carried out by Muslims (halal), Jews (kosher), Hindus and Sikhs (jhatka) in accordance with their religious traditions. The first draft provided that the cruelty provisions do not apply to:

the commission or omission of any act in the course of the destruction or the preparation for destruction of any animal as food for mankind, unless ... accompanied by the infliction of unnecessary trauma, pain or suffering. (Sec. 17(3)(d)) [corrected quote]

When Muslim groups criticized this  draft of the bill, the ministry circulated a new draft which contains an explicit exemption providing:

Nothing contained in this Act shall render it an offence to kill any animal in a manner required by the religion of any community.

Recent Prisoner Free Exercise Cases

In Boretsky v. Corzine, 2011 U.S. Dist. LEXIS 70654 (D NJ, June 30, 2011), a New Jersey federal district court rejected a Jewish inmate's free exercise and RLUIPA complaints that inmates in the Special Sentencing Unit could not join inmates elsewhere in the prison for religious services.

In Razzoli v. Executive Office United States Marshals, 2011 U.S. Dist. LEXIS 71271 (ED NY, June 30, 2011), a New York federal district court dismissed an inmate's claim that he was denied Catholic religious services while in special housing, because the same claim is pending in another lawsuit.

In Lamon v. Adams, 2011 U.S. Dist. LEXIS 71404 (ED CA, June 30, 2011), a California federal district court  dismissed an inmate's complaint that his kosher diet was revoked, finding that the reason for the prison's decision was that plaintiff assaulted correctional officers with his kosher meals.

In Hysell v. Schwarzenegger, 2011 U.S. Dist. LEXIS 72243 (ED CA, July 6, 2011), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's generalized claim that he is not being allowed to practice his chosen religion.

In Alamiin v. Beasley, 2011 U.S. Dist. LEXIS 72658 (WD OK, July 6, 2011), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 72738, June 13, 2011) and dismissed claims by a Muslim inmate that in 3 isolated instances he was forced to accept food that violated religious diet, and that he was not able to receive his breakfast tray early enough during Ramadan  during a 30-day stay in segregation.

In McMillan v. Terhune, 2011 U.S. Dist. LEXIS 73127 (CD CA, July 5, 2011), A California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 73125, March 30, 2011), and allowed an inmate to move ahead with a 1st Amendment Free Exercise claim that being confined to a bunk as a disciplinary measure precluded him from obtaining the meals he needed to fast during Ramadan. However the court dismissed plaintiff's RLUIPA claims.

European Court Dismisses Challenges To Switzerland's Minaret Ban

The European Court of Human Rights on Thursday dismissed two challenges to Switzerland's constitutional amendment that bans the building of minarets. (See prior posting.)  A press release on the cases described the court's reasoning in rejecting the petitions that claim the ban was in violation of Arts. 9 and 14 of the European Convention on Human Rights.  Art. 34 of the Convention allow challenges to be brought only by someone who is a "victim" of a violation of the Convention by one of the countries that is a party to it.  The court concluded that applicants here had not claimed that they planned to build a mosque with a minaret in the near future. The court's full opinions in La Ligue des Musulmans de Suisse v. ls Suisse and Ouardiri v.ls Suisse, (ECHR, June 28, 2011), are available in French. SwissInfo reported on the decisions.

House Amendments To Defense Bill Bar Using Military Facilities For Gay Marriages

On Thursday, the U.S. House of Representatives voted on a number of amendments to the 2012 Defense Appropriations Bill. The Daily Caller reports on one amendment, which passed 236-84, introduced by Rep. Tim Huelskamp of Kansas, that bars same-sex marriages being performed on military bases. The amendment provides: "None of the funds made available by this Act may be used to implement the curriculum of the Chaplain Corps Tier 1 DADT repeal training dated April 11, 2011."  From the Congressional Record, here is the explanation of the amendment by Rep. Huelskamp:

Earlier this year, the Navy chief of chaplains announced that military chaplains who desire to perform same-sex marriages would be allowed to do so following the repeal of the policy known as Don't Ask, Don't Tell. The directive said that chaplains could perform same-sex ceremonies in such States where such marriages and unions are legal. Apparently, the Navy has recently backed away from such instruction, but tepidly and weakly, and in a way that leaves the door open to the reinstatement of this policy.

This amendment I offer will prohibit the enforcement of the directive of allowing chaplains to perform same-sex marriages on Navy bases regardless of whatever a State's law is on gay marriage.

... As the Navy and other military branches prepare for the repeal of this 1993 law, hours upon hours of sensitivity training have been presented to men and women in uniform. Such instruction has included warning that the failure to embrace alternative lifestyles could result in penalties for serv ice mem bers.

What will happen to chaplains who decline to officiate over same-sex ceremonies? The directive states that chaplains ``may'' perform same-sex civil marriage ceremonies. I fear that chaplains who refuse to perform these ceremonies may find themselves under attack and their careers threatened.

Madam Chair, we must ensure the religious liberty of all military members, particularly that of chaplains. In my family, I've had a military chaplain who has served for more than approximately 4 decades, so this is particularly important to me, personally.

(See prior related posting.) The House on Thursday and Friday also passed two additional amendments to the Defense Appropriation Bill  (1, 2) that appear to achieve the same purpose. They prohibit use of any funds in contravention of the Defense of Marriage Act.

Clergy Group Among Plaintiffs Challenging Alabama's New Law On Illegal Immigration

The Southern Poverty Law Center announced yesterday that it has led a group of civil rights organizations in filing a lawsuit challenging the constitutionality of HB56, a strong state law enacted last month by the Alabama legislature to combat illegal immigration. The complaint (full text) in Hispanic Interest Coalition of Alabama v.  Bentley, (D AL, filed 7/8/2011), contending that the state law is invalid on several constitutional grounds, was brought on behalf of a number of organizational and individual plaintiffs, including the Greater Birmingham Ministries (GBM) and several clergy. Here are allegations from the complaint regarding GBM's interest in the matter:

54.... GBM serves approximately 3,000 families per year... by providing free non-perishable foods and fresh vegetables and fruits; free clothes, including clothes for school-age children; and financial support in the form of rental payments, utility bill payments, bus passes, and prescription drug payments. GBM does not have the need or capacity to ask for immigration status from its clients before offering them services. Under HB 56, GBM fears that this policy may lead them to be prosecuted for encouraging undocumented immigrants to stay in Alabama or for aiding in harboring and transporting them due to paying for their rent, utilities, and bus passes.

55. Additionally, GBM’s members have expressed this fear of prosecution since they often directly provide transportation to undocumented members of their congregations for vacation Bible school for school-age children and for healthcare and childcare.

56. Undocumented individuals from GBM congregations have also expressed concern that their children may not be able to attend school if they have to register with their child’s public school under HB 56. These members fear that their immigration status will be sent to the federal government and lead them to being detained and possibly deported under HB 56.

57. GBM is also concerned that it will soon have to divert organizational and financial resources because immigrants from their congregations are already leaving Alabama due to HB 56. GBM relies on members for volunteers, and if its congregations no longer have as many members, GBM will have to decrease the number of services it provides due to the decreasing volunteer base that GBM draws from.

58. Because GBM is publicly opposed to HB 56, it is likely that member congregations that do not agree with GBM will limit, or cease, their support of GBM, which would also lead to a diversion of resources.... 

U.N. Special Rapporteur Pressured To Resign Over Anti-Semitic Cartoon On His Personal Website

Ambassador Eileen Donahoe, U.S. Representative to the United Nations Human Rights Council, issued a statement yesterday calling for the resignation of Richard Falk, the U.N. Special Rapporteur on human rights in the Palestinian territories because of a now-removed anti-Semitic cartoon which Falk posted on his personal website. She also has sent a letter to the UN High Commissioner complaining about Falk. Falk's June 29 blog posting criticizes the International Criminal Court for issuing arrest warrants for Libya's Mummar Quaddafi, his son, and Libya's intelligence chief.  The posting claims that the Court was being manipulated for political purposes by the United States and NATO. Along with the narrative is a cartoon of Lady Justice being led around by a dog wearing a sweater inscribed USA, wearing a kippah with a Star of David on it, and urinating on the statue.  The dog is chewing on the bones of a skeleton. On Wednesday, Falk issued an apology on his blog, saying that he had not detected the anti-Semitic symbolism in the cartoon before it was pointed out to him, and that then he removed the cartoon. Falk then issued a further explantion in a follow-up blog posting the same day:

Because this unintentional posting of an anti-semitic cartoon has attracted such attention to my blog, and elicited a stream of venomous comments, I want to explain my mistake one last time.... 

Even now I needed a magnifying glass to identify the anti-semitic character of the dog. My vision (at 80) is pretty good, but not good enough. It looked like a helmet to me, and the main visible symbol on the dog was the USA midriff covering. I found the cartoon through a Google image search on the page devoted to the International Criminal Court. Almost all the images there were about the Court or justice, and I assumed that this blindfolded goddess of justice was being led around by the USA. I am quite sure this cartoon would never have been allowed on the Google page if its true content had been realized, and it should be removed. Without a special effort, which admittedly I did not make, this true content is easy to overlook, and even when the initial objection to the cartoon was brought to my attention, and I looked at it, I did not appreciate the objectionable character of what was intended to be communicated.

The NGO UN Watch is also calling for Falk's resignation, as is the Jewish Council for Public Affairs.
[Updated]

Dalai Lama Emphasizes Church-State Separation Explaining His New Role To Congress

On Wednesday, the Dalai Lama began a two week visit to the United States that includes 11-days of participation in Kalachakra initiations in Washington D.C. Phayul details his schedule. Yesterday the Dalai Lama met with a bipartisan group of Congressional leaders. According to CNN, he used the occasion to explain his recent decision to step down as the political head of his Tibetan government in exile, saying it reflected his belief in separation of church and state:

The religious institution, the leader of the religious, and the political leadership, should be separate. I myself combine! So my statement, my explanation, become like hypocrisy. Saying something, doing something different. Religious institutions, political institutions, must be separate - the last several decades I emphasized that.

Suit Challenges Ballot Summary For Missouri Religious Freedom Amendment

As previously reported, Missourians will vote next year on a proposed state constitutional amendment (full text) that, if passed, will expand the language of the religious freedom protections in the current Art. I, Sec. 5 of the Missouri Constitution. Now, according to an AP report yesterday, the American Civil Liberties Union has filed a state court action challenging the wording of the summary of the measure that will appear on the ballot.  The suit alleges that the summary fails to indicate the effect of language in the amendment that provides: "no student shall be compelled to perform or participate in academic assignments or educational presentations that violate his or her religious beliefs."  The suit also argues that the ballot summary fails to mention that prisoners might lose some religious protections they now have under the state constitution. The amendment provides: "this section shall not be construed to expand the rights of prisoners in state or local custody beyond those afforded by the laws of the United States."

Small North Carolina School's Grads Choose Preacher, Get Sermon, At Commencement

Wednesday's Smoky Mountain News carries an article about last month's graduation ceremony for the nine graduating seniors at Nanthala School, a K-12 school in Macon County, North Carolina.  The school gave the students a choice of who they wanted as their graduation speaker. They chose Rev. Daniel "Cowboy" Stewart, pastor of a small Baptist church in Robbinsville (NC).  Here is report on Stewart's speech:

Stewart gave a rousing sermon, in which he brought a volunteer on stage, bound them in numerous ropes until they couldn’t move and then placed a bag over their head. It was an object lesson illustrating the prowess of the devil at prowling like a roaring lion, seeking whom he may devour. “The devil is out to destroy you, to tie you up. These people who took drugs, overdosed and died didn’t mean to. They got tied up,” said Stewart... The roaring lion bit was a reference to the Biblical book of 1 Peter....

Macon County superintendent Dan Brigman said he saw no 1st Amendment problem since the students chose the speaker.

Vatican Signs Agreement With Azerbaijan Securing Legal Status of Church

CNA reports that on Wednesday, the Vatican signed an historic treaty with Azerbaijan securing the legal status of the Catholic Church in Azerbaijan, and protecting freedom of religion. The agreement is seen as a possible model for treaties with other Muslim-majority nations.  Azerbaijan is 99% Muslim, and only about 400 Catholics reside in the country.

ECHR Grand Chamber: European Convention Protects Military Conscientious Objectors

The Grand Chamber of the European Court of Human Right yesterday, in a 16-1 decision, overruled prior precedent as well as a Chamber judgment in the case, and held that Art. 9 of the European Convention on Human Rights protects military conscientious objectors.  In Bayatyan v. Armenia, (ECHR, July 7, 2011), the court awarded damages to a Jehovah's Witness who had been imprisoned for refusing to serve in the Armenian military.  The Court said:

opposition to military service, where it is motivated by a serious and insurmountable conflict between the obligation to serve in the army and a person’s conscience or his deeply and genuinely held religious or other beliefs, constitutes a conviction or belief of sufficient cogency, seriousness, cohesion and importance to attract the guarantees of Article 9.

In reaching this conclusion, the Court said:

the Convention is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today....

Subsequent to the conviction at issue in this case, Armenia changed its law to provide for conscientious objection. Yesterday, in light of the ECHR decision, Amnesty International issued a joint statement with four other groups calling on Turkey and Azerbaijan-- the only two European Convention adherents without conscience laws-- to enact legislation to protect conscientious objectors. It also called on Armenia to make its Alternative Service law more meaningful.  Forum18 has more background on the situation.

Pakistan's Supreme Court Keeps This Year's Hajj Quota Allocations; Orders Changes For 2012

In Pakistan, private tour operators have been challenging the manner in which Hajj quotas were allocated this year to Pakistan's private tour operators. Thirteen tour operators sued the Federal Government and several government ministries claiming that the Ministry of Religious Affairs had allocated quotas on the basis of personal favoritism and political influence. The suit also challenged the Ministry's decision to deny a quota for new tour operators. (See prior posting.) In early June, the Lahore High Court declared the 2011 policy illegal and directed that quotas for this November's pilgrimage be reallocated in a transparent manner.  The Nation reports that today, Pakistan's Supreme Court set aside the Lahore High Court's order. The Supreme Court held that this year's quotas will not be changed given the loss it would cause to tour operators and the inconvenience that would be created for the 90,000 pilgrims involved. However the Court ordered that a coordinated policy, which will include new tour operators, is to be implemented for 2012.

Court Dismisses Failure To Supervise Claims Against Archdiocese In Sexual Abuse Case

In Doe v. Roman Catholic Archdiocese of St. Louis, (MO App. July 5, 2011), a Missouri appellate court rejected plaintiff's claim against the Archdiocese of St. Louis for intentional failure to supervise one of its priests who sexually abused plaintiff as a teenager.  The court held that under Missouri law, a duty to supervise arises only as to activity that takes place on Church premises or that occurs while the priest was using a chattle (non-real property) belonging to the church. The fact that the Archdiocese permitted the priest to take children off premises, knowing he had previously engaged in sexual abuse of minors, was not enough to create liability.  The court also dismissed plaintiff's negligence claims, concluded that the First Amendment bars assertion of tort claims for negligence in supervising, retaining or hiring sexually abusive clergy.

Muslim Religious Services In Canadian School Angers Hindus, Raises Legal Issues

Canada's National Post reported Tuesday on questions raised by the practice in a Toronto public school that has a predominately Muslim student body of permitting an imam to conduct a 30-minute prayer service for students in the school cafeteria on Friday afternoons. Valley Park Middle School is 80% to 90% Muslim, and some 400 students each week choose to attend the service.  While there is a mosque down the street, parents are concerned about safety and the students' failing to promptly return to school that is involved if students are merely excused to attend services there. School officials see the in-school alternative as an accommodation of students' religious practices, and not the kind of imposition of religion in the classroom that the Ontario Court of Appeals found unconstitutional in the 1988 case of Zylberberg v. Sudbury Board of Education. That case involved opening of class with a scripture reading and the Lord's Prayer.  In a National Post interview, a Canadian Civil Liberties spokesperson said:

If you looked at what happened with the Lord’s Prayer — even though you had an opt-out for students who didn’t want to say the prayer — the concern was they would be subject to a lot of peer pressure that could make life difficult. Given the size of the Muslim population in this school, it may raise similar concerns of pressure on non-Muslims to participate.

Meanwhile, Hindu groups are complaining about the potential for inflammatory preaching against Hinduism, and the fragmentation of the student body that this involves.  Canada's South Asian Focus reports that the group Canadian Hindu Advocacy says that the Muslim services in the school are unacceptable.  SAF spokesman Ron Banerjee said that his group is also opposed to the serving of halal meat in the public schools.  He added: "Our organisation is determined to ensure all Hindu students are provided non-halal meat alternatives."