9th Circuit: Damages Under RLUIPA Still Recoverable Against Municipalities

In Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, (9th Cir., July 12, 2011), the 9th Circuit held that a church which was wrongfully required to obtain a conditional use permit for its building can recover damages under the Religious Land Use and Institutionalized Persons Act despite the U.S. Supreme Court's recent decision in Sossamon v. Texas. (See prior posting). The 9th Circuit reasoned:

Sossamon is grounded on the line of Eleventh Amendment authority requiring "clear expression" to abrogate the sovereign immunity of states from damages claims. The Eleventh Amendment requirement does not apply to municipalities. The City of Yuma,therefore, may be liable for monetary damages under RLUIPA, if plaintiffs prove a violation and damages.

The court went on to find that requiring a conditional use permit for religious organizations and not for other membership organizations was a violation of the "equal terms" provision of RLUIPA.  Yuma had attempted to justify the different treatment on the ground that the presence of the church would have precluded issuance of liquor permits to other businesses within 300 feet.  But the court responded that "many of the uses permitted as of right would have the same practical effect as a church of blighting a potential block of bars and nightclubs." The Yuma (AZ) Sun reports on the decision.

Illinois Catholic Charities Gets Temporary Restoration of State Foster Care Contracts

Last month, three Illinois Catholic dioceses-- those of Springfield, Peoria and Joliet--  filed a state court lawsuit  seeking a declaratory judgement that they are acting within the law in offering adoption and foster care services only to married couples and to non-cohabiting single individuals and in refusing to place children with couples in same-sex civil unions. (See prior posting.)  Now AP reports that yesterday, a Sangamon County Circuit Court issued a temporary injunction, pending a hearing next month, reinstating the state contracts relating to children in Catholic Charities supported foster homes. The court expressed concern that abrupt termination could affect the well being of the children in foster care.  The state had argued that the issue was moot since the contracts expired June 30 and had not been renewed because Catholic Charities indicated they would not comply with state law.  Catholic Charities wants to be able to refer same-sex couples to other adoption and foster care agencies.

UPDATE: AP reported on July 13 that Illinois will not cut off funding to other faith-based agencies in the state for existing children in foster care, even though they are not covered by this injunction, until this case is resolved.

UPDATE2: The Chicago Tribune reported July 15 that dioceses in Springfield, Peoria and Joliet filed emergency motions to obtain a clarification from the court on whether under its order the state can stop referring new cases to Catholic Charities. UPDATE3: Here is a copy of the motion filed by the dioceses.

Town Clerk Resigns Over New York Same-Sex Marriages

In the town of Barker, New York, 56-year old Laura Fotusky has become the first town clerk in the state to resign over the recently enacted same-sex marriage bill.  According to the International Business Times, Fotusky says that her religious beliefs preclude her from signing a marriage certificate for a same-sex couple. The full text of Fotusky's resignation letter is included in a posting on the website of New Yorkers for Constitutional Freedoms.  In the letter, which was presented to the Town Board on July 11, she says: "I would be compromising my moral conscience if I participated in the licensing procedure."

UK Equality Commission Wants European Court To Require Accommodation of Employees' Religious Beliefs

Britain's Equality and Human Rights Commission announced Monday that it has petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempt by employees to obtain accommodation of their religious practices.  In its applications to intervene, the Commission argues that past decisions have not sufficiently protected freedom of religion or belief.  It will urge the Court to adopt a principle of reasonable accommodation of religious beliefs.  Two of the cases involve female employees who wished to wear a cross on a necklace in violation of their employers' dress policies. (Applications of Nadia Eweida and Shirley Chaplin).  The second two cases involved employees with religous objections to same-sex unions.  One case involved a marriage registrar who objected to taking part in registration of same-sex civil partnerships.  The second involved a counselor who had concerns about providing sexual counselling to same-sex couples. (Applications of Lillian Ladele and Gary McFarlane).

9th Circuit Tells Government To Clarify Its Position On "Don't Ask, Don't Tell"

The U.S. 9th Circuit Court of Appeals yesterday issued an order requiring the Obama Administration to clarify its position on "Don't Ask, Don't Tell."  The district court held the law unconstitutional, and Congress has enacted a repeal of policy which becomes effective when the President, Secretary of Defense, and the Chairman of the Joint Chiefs of Staff certify that certain conditions have been met. (See prior posting.) In Log Cabin Republicans v. United States, (9th Cir., July 11, 2011), the 9th Circuit said:

No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed.

The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C §530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute)....If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality....

The government was ordered to advise the court whether it intendes to submit a §530D report to Congress in a timely manner so Congress can intervene. The parties were also ordered to show cause why the case should not be dismissed as moot, at least once the Congressional repeal takes effect. National Law Journal reports on the court's order.

Interagency Group On Religion and Global Affairs Chaired From White House

In a White House blog posting yesterday, Joshua Dubois, Executive Director of the White House Office of Faith-based and Neighborhood Partnerships, discusses the Interagency Working Group on Religion and Global Affairs that was launched, co-chaired by the White House Faith-Based Office and the White House National Security staff.  He said in part:

This groundbreaking working developed a comprehensive map of how our government currently engages religious actors in foreign affairs through USAID Missions, Embassies, and Departments across government from the Department of Defense to the Department of Health and Human Services. As a result of this work, we’ve seen new courses in religious engagement at the Foreign Service Institute, new efforts on religion and global affairs at the State Department, and a renewed focus on the intersection of religion and foreign policy across the United States Government.

We also work closely with the National Security Staff to make sure that the administration is supporting the protection of religious minorities. We formed a first-ever interagency working group towards this end, and meet regularly to ensure that federal agencies are working with one another towards a comprehensive approach to religious minority protection.

Pakistani Court Orders More Train Cars For Pilgrims To Saint's Urs

In Pakistan yesterday, the Lahore High Court ordered the Pakistan Railways to add extra cars to its trains to facilitate transportation for Sufis who want to attend the annual Urs (death anniversary) of the saint, Shahbaz Qalandar.  According to Pakistan's The News, in past years the railway ran 14 special trains for the celebration.  The railroad said that financial constraints led it to end the special trains this year.  The court issued its order after evidence was presented that the railroad had operated eight special trains for Sikh pilgrims during the last 6 months. The railroad insisted that most of those were arranged because of international commitments.

China Defends Its Religious Liberty Record In Tibet

The Information Office of China's State Council yesterday published a White Paper titled: Sixty Years Since the Peaceful Liberation of Tibet.  A section of the White Paper defends China's polices on religious freedom in Tibet.  It says in part:

Freedom of religious belief of all ethnic groups is respected and protected in Tibet. All religions, all religious sects are equal in Tibet. The Living Buddha reincarnation system, unique to Tibetan Buddhism, is fully respected. People are free to learn and debate Buddhist doctrines, get ordained as monks and practice Buddhist rites. Academic degrees in Buddhism are also promoted. The central government has listed some famous sites for religious activities as cultural relics units subject to state or autonomous regional protection, including the Potala Palace, Jokhang Monastery, and Tashilhunpo, Drepung, Sera and Sakya monasteries. Tibet now has more than 1,700 venues for religious activities and about 46,000 monks and nuns. Monks and laymen organize and take part in the Sakadawa Festival and other religious and traditional activities every year. More than 1 million worshipers make pilgrimage to Lhasa each year.

(See prior related posting.)

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.
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