Religion Clause

Tuesday, July 19, 2011

Can New York Municipal Clerks Require Accommodation of Objection To Licensing Same-Sex Marriages?

As previously reported, New York's recently-enacted same-sex marriage law protects from liability or penalty any clergy who refuse to officiate at a same-sex marriage, but does not contain any explicit conscience exception to shield municipal clerks who have religious objections to issuing marriage licences to same-sex couples. At least one town clerk has already resigned over this. Now, however, Constitutional Law Prof Blog reports that the Alliance Defense Fund last week sent a memo (full text) to New York Municipal Clerks telling them that they are entitled to claim a religious accommodation to exempt them from issuing same-sex marriage licenses. The accommodation provisions appear in the New York Human Rights Law, Executive Law Sec. 296(10)(a.). That section bars employers from requiring any employee

to violate or forego a sincerely held practice of his or her religion ... unless, after engaging in a bona fide effort, the employer demonstrates that it is unable to reasonably accommodate the employee's ... sincerely held religious observance or practice without undue hardship on the conduct of the employer's business.

ADF's memo argues:

because New York law [Domestic Relations Law Sec. 15(3)] explicitly allows a municipality to delegate a clerk’s duties concerning marriage licenses to a deputy clerk or any other employee, a city or town should have no reason to deny a clerk’s request for an accommodation. It should be a simple matter to delegate those duties to others who do not object to issuing and signing marriage licenses for same-sex couples.

ADF's memo fails however to discuss two other provisions that may shed some question on its analysis. Executive Law Sec. 296(1)(d.) provides that:

an accommodation shall be considered to constitute an undue hardship if it will result in the inability of an employee to perform the essential functions of the position in which he or she is employed.

In addition, Domestic Relations Law Sec. 15(3) cited by ADF, appears to allow appointment of a deputy clerk or other employee by a city, but does not appear to provide for the same delegation by towns. [Thanks to Ruthann Robson for the lead.]

International Representatives Call For Effective Measures To Combat Religious Discrimination

As previously reported, in March 2011, in a major policy shift, the 47-member United Nations Human Rights Council unanimously adopted a Resolution on Freedom of Religion or Belief which omits any reference to the concept of "defamation of religion" and instead focuses on the individual's right to freedom of belief. Last week during her trip to Turkey, which included addressing the Organization of the Islamic Conference High-Level Meeting on Combating Religious Intolerance (see prior posting), Secretary of State Hillary Rodham Clinton joined with the Secretary General of the OIC and representatives of the EU, the Arab League, the African Union and 19 individual nations in issuing a joint statement calling for implementation of the the Human Rights Council resolution. According to a State Department release issued July 15:

Participants, resolved to go beyond mere rhetoric, and to reaffirm their commitment to freedom of religion or belief and freedom of expression by urging States to take effective measures, as set forth in Resolution 16/18, consistent with their obligations under international human rights law, to address and combat intolerance, discrimination, and violence based on religion or belief.

New Jersey Rabbi Charged By Feds With Kidnapping Man To Coerce a "Get"

The U.S. Attorney's Office for the District of New Jersey announced yesterday that authorities have arrested a Lakewood, New Jersey rabbi and his wife and charged them (full text of criminal complaint) with kidnapping an Israeli citizen living in New York in order to coerce him to grant a Jewish religious divorce (get) to his wife in Israel. The victim of the kidnapping is identified by the London Daily Mail as Yisrael Briskman, who fled Israel two years ago after refusing to give his wife a get. Israeli rabbinical authorities have called on members of the religious community to place pressure on Briskman to end his 5-year refusal to grant his wife a divorce. Briskman wants custody of the couple's son. The charges in New Jersey were brought against David and Judy Wax who, it is alleged, got Briskman to their residence under false pretenses, where he was beaten and robbed. David Wax is also charged with phoning Briskman's father in Israel demanding payment of $100,000 to the family of Briskman's wife. The Wax's were released on $500,000 bail.

Michigan Church Sues Claiming RLUIPA and Constitutional Violations In Zoning Law

A lawsuit was filed in federal district court in Michigan yesterday challenging a rezoning ordinance adopted by Inkster, Michigan which prevented a church from renovating fire-damaged buildings and locating a church and parochial school on property the it owned in an area zoned as a business district. The complaint (full text) in T.C. Spann Bible Institute v. City of Inkster, (ED MI, filed 7/18/2011), alleges violations of the Religious Land Use and Institutionalized Persons Act as well as numerous provisions of the state and federal Constitutions-- including the free exercise clause and a claim that the city's excessively burdensome regulations amounted to a regulatory taking of the church's property. The complaint contends, among other things, that:

The Inkster Code effectively prohibits... any ... religious organization from locating their church and parochial school in Inkster unless such organization meets a series of burdensome Special Conditions, which apply only to churches and parochial schools.

The complaint asks for damages of $1.5 million on each of ten counts. [Thanks to Brian D. Wassom for the lead.]

Illinois Will Continue Catholic Charities For New Foster Care Cases While Litigation Is Progressing

According to a press release from the Thomas More Society, the state of Illinois announced in court yesterday that it will resume the referral of new foster care cases to Catholic Charities in the state while litigation continues. The dispute began when the state legislature failed to enact an exemption that would protect Catholic agencies who refuse to place children with same-sex couples who now may enter civil unions in Illinois. (See prior posting.) Three dioceses sued to confirm that they do not need to place children with same-sex couples, and the court granted a preliminary injunction while the litigation was pending in order to prevent abrupt termination of foster care relationships. However the injunction was unclear as to whether it applied only to children already in foster care, or to new referrals as well. So the dioceses filed an emergency motion to clarify that point. (See prior posting.) The state's concession appears to eliminate the need for the court to pass on the emergency motion.

Malaysian Court Says Constitution Does Not Protect Right To Renounce Islam

According to the Malay Mail, an appeals court in Malaysia yesterday rejected a claim that the protection in Art. 11(1) of the Malaysian Constitution allowing every person the right to profess and practice his religion precludes prosecution of a follower of Ayah Pin for apostasy by a Syariah court. Kamariah Ali had filed suit in the civil courts seeking a declaration that the Constitution protects the right of Muslims who reach adulthood to leave the religion. She argued that her declaration that she no longer professes Islam should remove her from the jurisdiction of Syariah law. However the appeals court held that the Constitution gives Syariah Courts exclusive jurisdiction to determine matters relating to Islam. (See prior related posting.)

Court Orders 10 Commandments Monument Removed From Florida Courthouse

In ACLU of Florida Inc. v. Dixie County Florida, (ND FL, July 15, 2011), a Florida federal district court held that Dixie County must remove a large Ten Commandments monument that has been displayed since 2006 on the steps of the County Courthouse. (Photo om monument). The monument was authorized at the urging of a local businessman who paid for it and challenged the Board of County Commissioners to have the courage to allow him to put it up. The court rejected the argument that the monument protected private speech of the businessman who paid for, and owns, it:

Dixie County contends that the six-ton granite monument is not permanent because it is not anchored to the stone of the courthouse steps. Because it is not a permanent monument, Dixie County argues, the display should be analyzed as would a speaker speaking in a public forum on the topic of their choosing, rather than as a monument that may imply government endorsement by the circumstances of its placement or continued presence. The Court disagrees. In this analysis, the opposite of permanent is not “detached,” but rather “temporary.” Dixie County cites no authority for the proposition that only monuments anchored or affixed to their surroundings should be considered permanent. The monument in question weighs twelve thousand pounds, has been there for three years, and Dixie County has no plans to move it....

Despite the actual ownership of the monument, the location and permanent nature of the display make it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed. As such, the Court finds that the monument displaying the Ten Commandments is government speech and must comport with the Establishment Clause.

Moving to the Establishment Clause issue, the court concluded:

The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office. “No viewer could reasonably think that it occupies this location without the support and approval of the government.”

The court ordered the monument removed within 30 days and awarded nominal damages of $1 to the ACLU. The ACLU issued a press release announcing the decision and the Gainesville (FL) Sun reports on the decision.

Monday, July 18, 2011

President Meets With Dalai Lama

According to the White House Blog, on Saturday morning President Barack Obama met with the Dalai Lama in the Map Room at the White House. The Dalai Lama is on a two-week visit to the United States. (See prior posting.) After the meeting, the White House issued a statement, which read in part:

The President reiterated his strong support for the preservation of the unique religious, cultural, and linguistic traditions of Tibet and the Tibetan people throughout the world. He underscored the importance of the protection of human rights of Tibetans in China.... Reiterating the U.S. policy that Tibet is a part of the People’s Republic of China ..., the President stressed that he encourages direct dialogue.... The Dalai Lama stated that he is not seeking independence for Tibet and hopes that dialogue between his representatives and the Chinese government can soon resume.

Irish Government To Propose Ending Confidentiality of Confessions When Child Abuse Is Reported

After new disclosures last week of the Catholic Church in Ireland concealing clergy sexual abuse of children from authorities as late as 2009 (see prior posting), Ireland's prime minister Enda Kenny said that his government will submit legislation to Parliament that will require reporting of child abuse to civil authorities. According to Reuters last Thursday, the law will override the confidentiality of the confessional and require disclosure even when the abuse is disclosed only in confession to a priest. [Thanks to Pew Sitter for the lead.]

Herman Cain Says Communities Should Be Able To Block Mosques

Yesterday, Chris Wallace interviewed Herman Cain, a candidate for the Republican nomination for President (full transcript). A portion of the interview focused on Cain's sometimes controversial views of Muslim Americans. Here is an extensive excerpt from the interview:

WALLACE: You said this week that you oppose construction of a new mosque in Murfreesboro, Tennessee..... What's your objection to their building a new mosque?

CAIN: One of my guiding principles, Chris, is that if you want to know the solution to the problem or if you want to understand the problem, go to source closest to the problem. I talk to the people in that community.

And here's their problem and I sympathized with them. Our Constitution guarantees separation of church and state. Islam combines church and state. They are using the church part of our First Amendment to infuse their mosque in that community and the people in the community do not like it, they disagree with it.

Sharia law is what they are to infuse in to our --

WALLACE: Wait a minute. Are you saying that we should ban Muslims from worshiping in this country?

CAIN: I'm not saying that. What I'm saying is American laws in American courts. That's what the people of Murfreesboro are saying.... Well, Chris, I happen to also know that it's not just about a religious mosque. There are other things going on based upon talking to the people closest to the problem. It's not a mosque for religious purposes. This is what the people are objecting to....

WALLACE: ... [M]y question, I guess is, this isn't Ground Zero in New York City. It's not hallowed ground. Don't Americans have a right of whatever religion under the Constitution, which you speak so much about, to free speech and freedom to worship.

CAIN: To the people in Murfreesboro, it is hallowed ground. They are objecting to the intentions of trying to get Sharia law....

WALLACE: But couldn't any community then say we don't want a mosque in our community?

CAIN: ... [L]et's go back to the fundamental issue that the people are basically saying that they are objecting to. They are objecting to the fact that Islam is both religion and of set of laws, Sharia law. That's the difference between any one of our other traditional religions where it's just about religious purposes.

The people in the community know best. And I happen to side with the people in the community.

WALLACE: So, you're saying that any community, if they want to ban a mosque.

CAIN: Yes, they have the right to do that. That's not discriminating based upon religion -- against that particular religion. There is an aspect of them building that mosque that doesn't get talked about. And the people in the community know what is it and they are talking about it.

WALLACE: ... This gets back to an early controversy where ... you said that you're not comfortable with the idea of appointing a Muslim for your cabinet. As someone who I'm sure who faced prejudice growing up ... in the '50s, '60s, how do you respond to those who say you are doing the same thing?

CAIN: I tell them that that's absolutely not true, because it is absolutely totally different. I grew up, like you said, in the '50s and the '60s. I grew up before civilian rights movement, during the civil rights movement and after the civil rights movement.... We had some laws that were restricting people because of their color and because of their color only. That's what that situation was.

WALLACE: But aren't you willing to restrict people because of their religion?

CAIN: I'm willing to take a harder look at people that might be terrorists. That's what I'm saying. Look, I know that that there's a peaceful group of Muslims in this country. God bless them and they are tree to worship. I have no problem with that.

If you at my career, I have never discriminated against anybody because of their religion, their sex, or origin, or anything like that. I'm simply saying I owe it to the American people to be cautious because terrorists are trying to kill us. And so, yes, I'm going to err on the side of caution, rather than on the side of carelessness.

Sunday, July 17, 2011

IRS Asked To Investigate Church For Endorsing Recall

Americans United announced last week that it has written the Internal Revenue Service (full text of letter) asking it to investigate the El Paso, Texas, Tom Brown Ministries. AU says the ministry engaged in partisan politics by endorsing the recall of the mayor and two members of city council after the city approved extending health care benefits to domestic partners. AU says that a disclaimer on the church's website saying that the site is owned by Tom Brown and not the church is insufficient to prevent the recall efforts being attributed to the Ministries. The website contains an open letter to city council and a link to the recall petition. Brown also announced his support for the recall in an e-mail and during church services last month.

Texas Board of Education Will Debate Evolution In Selecting Supplemental Science Materials

The Texas Independent reported Friday that this week the Texas State Board of Education will again be debating evolution as it meets to select supplemental science curriculum materials for public schools. New Board chairman Barbara Cargill, a former science teacher, told the Texas Eagle Forum that she is one of only 'six true conservative Christians on the board." Cargill favors schools teaching the "strengths and weaknesses" of the theory of evolution. Proponents of that view now want to introduce that focus in supplemental materials, since the board rejected that language for curriculum standards in 2009. (See prior posting.) It is unclear how four new Republican board members will vote.

Tajik Government Fights Rise of Islam

The New York Times today reports on efforts of the government of Tajikistan to fight the increasing popularity of Islam in the country. According to the Times:

Bearded men have been detained at random, and women barred from religious services. This year, the government demanded that students studying religion at universities in places like Egypt, Syria and Iran return home. The police have shuttered private mosques and Islamic Web sites, and government censors now monitor Friday sermons, stepping in when muftis stray from the government line.

Last month, lawmakers took what many here said was a drastic step further: they passed a law that would, among other things, bar children younger than 18 from attending religious services at mosques.

It is called the law “on parental responsibility for educating and raising children,” and the measure, according to officials, is meant to prevent children from skipping school to attend prayer services, and it would hold parents responsible if they do.

Government critics liken it to a Soviet-style attempt at reversing Islam’s spread. Many warn, however, that banning young people from mosques may have the opposite effect.

UPDATE: Forum18 (July 21) has a more detailed analysis of Tajikistan's Parental Responsibility Law, as well as a new criminal law provision barring extremist religious teaching.

Recent Prisoner Free Exercise Cases

In Kuperman v. Wrenn, (1st Cir., July 14, 2011), the 1st Circuit affirmed the dismissal of claims by an Orthodox Jewish former prisoner that his rights were violated by requiring him to have a beard no more 1/4 inch in length.

In Garcia v. Clark, 2011 U.S. Dist. LEXIS 73647 (E CA, July 8, 2011), a California federal magistrate judge recommended that a preliminary injunction be issued requiring staff at a substance abuse treatment facility to furnish plaintiff, an Orthodox Jewish inmate, with the same kosher meals that are provided to similarly situated inmates and to provide him a place to pray at breakfast time. Plaintiff claimed that correctional officers harass, degrade and mock him, continuously take his Kosher food and are attempting to deny him all Kosher meals because he is not picking up his morning meal. UPDATE: The court adopted the magistrate's recommendations at 2011 U.S. Dist. LEXIS 108284, Sept. 22, 2011.

In Sherman-Bey v. Marshall, 2011 U.S. Dist. LEXIS 73869 (CD CA, July 8, 2011), a California federal district court accepted the findings and recommendations of a federal magistrate judge (2011 U.S. Dist. LEXIS 73801, April 25, 2011) and allowed an inmate who was a member of the Moorish Science Temple to proceed with his free exercise claim that he was denied the right to purchase a red fez because red was seen as gang colors; and with his 1st and 14th Amendment claims that Moorish Science Temple adherents were denied separate congregational services. RLUIPA claims and claims he could not buy scented oils were dismissed.

In Kindred v. California Department Mental Health, 2011 U.S. Dist. LEXIS 74908 (ED CA, July 11, 2011), a California federal magistrate judge recommended dismissal of claims by plaintiff, who is housed at a state hospital, that his rights were infringed when he was not permitted to buy a prayer rug and one of his spiritual books was damaged. Plaintiff was permitted to file an amended complaint as to some of his official capacity RLUIPA claims.

In Chase v. City of Philadelphia, 2011 U.S. Dist. LEXIS 75463 (ED PA, July 12, 2011), a Pennsylvania federal district court denied a TRO to a pre-trial detainee who requested kosher meals, finding that he does not hold a sincere belief in the Jewish religion.

In Bean v. Mancuso, 2011 U.S. Dist. LEXIS 74994 (WD LA, July 12, 2011), a federal district court accepted a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 75005, June 17, 2011) and dismissed as frivolous an inmate's claim that he needed a vegetarian diet for religious reasons.

In Harris v. Lappin, 2011 U.S. Dist. LEXIS 73003 (ED VA, July 7, 2011), a Virginia federal district court dismissed a former inmate's claim that racial and religious discrimination led to his being denied a sentence reduction for completing a drug abuse program.

In Mayweathers v. Swarthout, 2011 U.S. Dist. LEXIS 76413 (ED CA, July 13, 2011), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his claim that he should be provided kosher meals until halal meals are available in prison.

Saturday, July 16, 2011

U.S.-Iraq At Odds Over Return Of Jewish Books and Materials To Iraq

Haaretz earlier this week, in a report from AP, discloses a complex dispute between U.S. and Iraqi officials over the return to Iraq of a trove of Jewish books, photos and religious materials which U.S. forces discovered in 2003 in a basement used by Saddam Hussein's secret police. Found by a U.S. military team searching for weapons of mass destruction, the collection was sent to the United States for restoration and safekeeping under an agreement entered in 2003 between the U.S.-led Coalition Provisional Authority and the National Archives and Records Administration. Under the agreement, the U.S. would restore and display the collection, but would return it to Iraq whenever the Iraqi government requested. At a meeting held in June 2010 between U.S. officials and the head of Iraq's National Library and Archives, it was decided that half the material would be returned by the end of 2010, and the rest only after it was restored and displayed in the United States. However, the U.S. failed to meet the 2010 deadline, and Iraq's deputy culture minister, Taher Naser al-Hmood, is demanding that the materials be returned.

The State Department says it has only recently received the $3 million in funding to do the restoration work. Some fear that once the material is returned to Iraq, it will not be accessible to Jewish scholars, particularly Israeli ones. However Iraq says it will digitize the material so it is available to those outside Iraq. The situation is complicated by Iraqi suspicions that American Jewish groups are pressing the State Department not to return the materials. Those suspicions also interfered with attempts by Iraqi Jewish exiles to use these negotiations to also raise issues such as protecting Jewish cemeteries and shrines in Iraq.

9th Circuit Now Says Recruitment Portion of DADT Can Be Implemented On Congress' Timetable

Once again, the U.S. 9th Circuit Court of Appeals has changed the rules on enforcement of the military's "Don't Ask, Don't Tell" policy. Last October, a district court enjoined enforcement of DADT. In November, the 9th Circuit stayed that injunction, allowing enforcement of DADT pending appeal. However on July 7, the 9th Circuit lifted the stay, reinstituting the enforcement ban. (See prior posting.) Now, in an order handed down yesterday in response to an emergency motion for reconsideration, in Log Cabin Republicans v. United States, (9th Cir., July 15, 2011), the court changed its mind again and permitted enforcement of one aspect of DADT. Under the ruling, the military may not investigate, penalize or discharge any current service members under DADT. However the military does not need to change its recruiting practices at this time. As reported by the Washington Blade, the military may for now continue to apply DADT to prevent openly gay individuals from enlisting in the military. Instead the military will apparently be able to implement an end to DADT recruiting practices on its own timetable as set out in Congressional repeal legislation passed last year. Explaining its order, the 9th Circuit said that the government had not informed the court how far along it was in implementation of the Congressional DADT repeal. However the court also ordered the government to file additional information explaining why it had failed to previously give the court this information.

Secretary Clinton Addresses Religious Freedom During Trip To Turkey

Secretary of State Hillary Rodham Clinton is on a trip to Turkey, Greece and several Asian countries from July 14 to 25. (Itinerary). As reported by Turkish Weekly, while in Turkey on July 15-16, she had several occassions to address issues of religious liberty. In her joint press conference with Turkish Foreign Minister Ahmet Davutoglu (full text), she said:

Today, the foreign minister and I discussed additional ways we can further strengthen our ties. Turkey’s upcoming constitutional reform process presents an opportunity to address concerns about recent restrictions that I heard about today from young Turks about the freedom of expression and religion, to bolster protections for minority rights, and advance the prospects for EU membership, which we wholly and enthusiastically support.

We also hope that a process will include civil society and parties from across the political spectrum. And of course, I hope that sometime soon we can see the reopening of the Halki Seminary that highlights Turkey’s strength of democracy and its leadership in a changing region.

She also spoke at the Organization of the Islamic Conference High-Level Meeting on Combating Religious Intolerance held at Istanbul's Center for Islamic Arts and History. (Full text of remarks.) She said in part:

I want to applaud the Organization of Islamic Conference and the European Union for helping pass Resolution 1618 at the Human Rights Council.... [T]ogether we have begun to overcome the false divide that pits religious sensitivities against freedom of expression, and we are pursuing a new approach based on concrete steps to fight intolerance wherever it occurs. Under this resolution, the international community is taking a strong stand for freedom of expression and worship, and against discrimination and violence based upon religion or belief.

These are fundamental freedoms that belong to all people in all places, and they are certainly essential to democracy. But as the secretary general just outlined, we now need to move to implementation. The resolution calls upon states to protect freedom of religion, to counter offensive expression through education, interfaith dialogue, and public debate, and to prohibit discrimination, profiling, and hate crimes, but not to criminalize speech unless there is an incitement to imminent violence. We will be looking to all countries to hold themselves accountable and to join us in reporting to the UN’s Office of the High Commissioner of Human Rights on their progress in taking these steps.

For our part, I have asked our Ambassador-at-Large for Religious Freedom, Suzan Johnson Cook, to spearhead our implementation efforts. And to build on the momentum from today’s meeting, later this year the United States intends to invite relevant experts from around the world to the first of what we hope will be a series of meetings to discuss best practices, exchange ideas, and keep us moving forward beyond the polarizing debates of the past; to build those muscles of respect and empathy and tolerance that the secretary general referenced. It is essential that we advance this new consensus and strengthen it, both at the United Nations and beyond, in order to avoid a return to the old patterns of division.

Friday, July 15, 2011

Government Support For Orthodox Church Questioned In Greece

Reuters today reports that the sovereign debt crisis in Greece has caused many to question the government support and tax breaks given to the Greek Orthodox Church. Some 100,000 people have joined a Greek Facebook page, "Tax the Church." Church finances, tax payments and assets lack transparency. However campaigners claim that Greek Orthodox Church owns more land than any entity other than the state and owns 1.5% of the National Bank of Greece. The government spends 268 million Euros each year paying the salaries of 9,000 priests as well as pensions for retired clergy. The Church says it paid 1.3 million Euros in taxes last year. The Church says payments of priests' salaries are justified by the fact that the Church handed over 96% of the property it owned to the state when Greece became independent of the Ottoman Empire in 1821. Also several ministry buildings, universities and hospitals in Athens are on church property that is leased to the state for a nominal amount.

City's Deal With Catholic High School Criticized

On Wednesday, Americans United wrote the South Bend, Indiana Common Council (full text of letter) complaining about a Council decision last month to buy an old Family Dollar store for $1.2 million and donate it to a Catholic high school which will spend $35 million on a new building on the site. The letter says that Council, in approving the transaction, misunderstood its obligations under the U.S. Constitution. Under an agreement with the city, St. Joseph's High School will allow outside athletic groups and the public use its facilities when they are not in use by the school. In a press release Wednesday, AU said that "the public’s minimal benefit from the transaction does not excuse the constitutional violation."