Court Upholds Constitutionality of New York's Kosher Law Protection Act

In Commack Self-Service Kosher Meats, Inc. v. Hooker, (ED NY, Aug. 3, 2011), a New York federal district court upheld the constitutionality of New York's 2004 Kosher Law Protection Act (Agr. and Mkts. L. Sec. 201-A to 201-D).  The law was passed after an earlier version was declared unconstitutional.  Under the 2004 law, producers, sellers and certifiers of kosher food are required to file various disclosures with the state identifying the qualifications of certifiers of food being sold as kosher. This information is made available in an online registry for consumers. The court rejected an Establishment Clause challenge, finding that the state had a secular purpose in enacting the law and that the law does not favor one religious group over another. The court said:

The State cannot define what is and is not kosher because that is a matter of religious law. But the state is entitled to protect all purchasers of food represented to be kosher, whatever their religion, from fraud....

In contrast to the previously challenged statutes, which constituted the advancement of Orthodox Judaism because they defined "kosher" as meeting "orthodox Hebrew religious requirements," the current version of the Act is purely a labeling and disclosure law.

The court also rejected claims of excessive entanglement of religion and state.  Plaintiff argued that "there is entanglement between the Orthodox religious community and the State's political elite."  But the court said that  prohibited entanglement is only present when the government is being charged with enforcing a set of religious laws. Additionally, court also rejected plaintiffs' free exercise claims, finding that the law does not restrict any religious practice, nor does it require the use of any particular symbol to identify food as kosher. Reuters reports on the decision.

Justice Department Settles With California City In RLUIPA Zoning Case

The Department of Justice announced yesterday that it has entered a settlement agreement with the city of Walnut, California in a lawsuit claiming the city violated the Religious Land Use and Institutionalized Persons Act when, in 2008, it denied a conditional use permit to the Chung Tai Zen Center that wanted to build a temple on land it owned.  The denial led the Zen Center to move to another facility in Pamona.  Under the agreement, which must still received court approval, the city, in the future, will not impose differential zoning or building requirements on houses of worship. It will clarify the zoning appeals process for houses of worship. Also various city officials and employees will receive RLUIPA training. (See prior related posting.)

Utah Court Orders State AG To Advance Fees To Fiduciary In United Effort Plan Trust Case

The complex Utah state court litigation to reform the FLDS United Effort Plan Trust has gotten even more complex.  According to the Salt Lake Tribune, State 3rd District Court Judge Denise Lindberg on Monday ordered the Utah Attorney General's Office to advance $4.7 million to court-appointed special fiduciary Bruce Wisan for unpaid fees owed to lawyers and Wisan's accounting firm for work relating to the Trust. (See prior related posting.) The order contemplates that the Trust will eventually reimburse the state for the fees. The costs at issue were supposed to have been paid from proceeds of the sale of property and from court-imposed monthly occupancy fees that were assessed on those living on trust property. However most FLDS members have refused to pay the occupancy fees, and litigation challenging the trust reformation has prevented property sales from being completed. Utah Attorney General is considering an appeal of the decision that he calls "strange and surprising" and which he says contains personal and biased misstatements.

Israel To Use More Secular Version of Memorial Prayer At Military Ceremonies

Haaretz today reports on the latest volley in the battle between religious and secular Jews in Israel over the text used at the official military ceremonies remembering fallen soldiers, including the state ceremony each year at the end of Memorial Day and the beginning of Israel Independence Day. In 1920, a prayer written by Berl Katznelson after the battle of Tel Hai, became the memorial prayer used. It began "May the people of Israel remember" (Yizkor Am Yisrael).  In 1963, the Israel Defense Forces officially changed the prayer to begin "May God Remember" (Yizkor Elohim), which is the text of the traditional memorial prayer in Jewish religious ceremonies. However, that change was not enforced until two year ago when military rabbis pushed for the modified version. Two months ago, the IDF told a journalist that Yizkor Elohim is the official version. That in turn generated protests from many secular parents of deceased soldiers, and the IDF appointed a special committee to study the matter.  Now the Ministerial Committee on Ceremonies and Symbols says the prayer will return to its original version (Yizkor Am Yisrael) at ceremonies.

9th Circuit: University Rule On Student Groups Upheld On Its Face, But Remanded On Discriminatory Application Claim

In Alpha Delta Chi-Delta Chapter v. Reed, (9th Cir., Aug. 2, 2011), the U.S. 9th Circuit Court of Appeals upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that "restricts membership or eligibility to hold appointed or elected student officer positions ...  on the basis of race, sex, color, age, religion, national origin, marital status, sexual orientation, physical or mental handicap, ancestry, or medical condition." However, the court concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limited their membership. Judge Ripple concurred on the ground that the University's policy marginalizes religiously based groups because their members' shared beliefs coincide with their shared status as members of a religion. Courthouse News Service reports on the decision.

House Homeland Security Committee Holds Hearing On Al Shabaab's Activities In US

Largely lost in last week's focus on Congress' debt ceiling debate was the hearing held on last Wednesday by Peter King's House Homeland Security Committee on Al Shabaab: Recruitment and Radicalization within the Muslim American Community and the Threat to the Homeland. (Links to full texts of hearing testimony.)  In opening the hearing, Rep. King said:

At this hearing, the third in a series, we will examine Somalia-based terrorist organization al Shabaab’s ongoing recruitment, radicalization, and training of young Muslim-Americans and al Shabaab’s linking up with al-Qaeda in the Arabian Peninsula (AQAP).

In connection with the hearing, King released and investigative report (full text) on al Shabaab.

Faith-Based Director Follows Up Obama's Statements On Hiring By Grantees

Last month, President Obama at a University of Maryland town hall meeting endorsed the status quo as to faith-based hiring by religious organizations receiving federal grant monies. (See prior posting.) Groups such as the Interfaith Alliance and the Secular Coalition for America criticized Obama's statement, urging a policy of non-discrimination in hiring by all faith-based grantees. (Huffington Post.) On Monday, Joshua DuBois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships, posted a statement on the White House website that was apparently intended to be a response to these criticisms. The statement reads in part:

There has been some talk lately about the Administration’s commitment to the separation of church and state. President Obama strongly believes that while faith-based organizations play an integral role in providing social services, their interactions with government must be grounded in sound law and policy, and must respect the Constitution....

We established an Advisory Council on Faith-based and Neighborhood Partnerships and charged a taskforce of church/state experts with addressing key issues related to faith-based partnerships with government....

The bottom line is this: while critical issues remain, President Obama and we in the Office of Faith-based and Neighborhood Partnerships are committed to ensuring that we lead with our values: of constitutional separation of church and state, respect for faith-based and secular service providers alike, and commitment to doing the most good for individuals and families in need.

Women's Group in Lebanon Rejects Muslim Opposition To Family Violence Bil

Lebanon's Daily Star today reports that the Lebanese Women's Council has issued a statement supporting a proposed law to protect women from domestic violence.  The statement comes after both Dar-al Fatwa, the country's highest Sunni organization, and the Higher Shiite Council came out in oposition to the bill that was approved by the Cabinet and sent to Parliament in April 2010. Dar-al-Fatwa claimed that the proposed law is a Western idea designed to destroy the Muslim family. It is also concerned that the law undermines the role of religious courts.

Federal Government Asserts State Secrets Privilege In Mosque Surveillance Lawsuit

AP reported yesterday that the federal government has taken the unusual step of asserting the state secrets privilege in a motion to dismiss most of a lawsuit filed in federal district court in southern California against the FBI over its use of informants to infiltrate mosques. The lawsuit, filed by the ACLU of Southern California and CAIR alleged that targeting Muslim Americans amounts to religious discrimination and asked for the FBI to turn over or destroy all information gathered through the investigation.It also sought damages for emotional distress for three named plaintiffs. (See prior posting.) The motion filed Monday by Attorney General Eric Holder asserts that it could cause significant harm to national security if the government is required to disclose the subjects of a 2006 mosque-surveillance operation, disclose why it was undertaken and describe how the monitoring was carried out.

Religious Employer Exception Added To Required Women's Preventive Care Coverage

A memo from McDermott, Will and Emery reports that the recently issued federal guidelines on preventive health care services for women have been amended to provide an exemption for religious employers.  The guidelines under the Affordable Care Act require that various preventive services for women be covered fully, without co-payment, co-insurance or deductibles. Among the covered items are contraceptive services. However, pursuant to new authority granted to it in a release from the Department of Labor, Treasury and HHS issued on July 28 (full text), the Health Resources and Services Administration has exempted various religious employers from the required contraceptive coverage. [Thanks to Steven H. Sholk for the lead.]

UPDATE: The Heritage Foundation (Aug. 2) claims that the definition of religious employer in the new exemption is too narrow.

Mexico Electoral Commission Orders Fines Against Catholic Archdiocese

Time reported yesterday on a decision handed down last month by Mexico's Federal Electoral Institute (IFE).  It ordered the country's Interior Minister to impose substantial fines on Mexico City's Catholic archdiocese and its spokesman Rev. Hugo Valdemar for violating provisions of the Religious Associations Law that ban religious organizations from publicly endorsing or opposing political candidates.  Earlier this year, the archdiocese urged voters to not vote for political parties that support legalized abortion or gay marriage.

Australian State Charges Worldwide Jehovah's Witness Organizations Under Working With Children Act

JW News reported last week that the Australian state of Victoria has filed criminal charges against the entire worldwide corporate and religious hierarchy of the Jehovah's Witness church, claiming failure to comply with Victoria's Working With Children Act 2005. The Act requires a Working With Children Check on individuals who are engaged in child-related work. It is claimed that The Governing Body of Jehovah’s Witnesses and the Watch Tower Society were notified of their obligation to comply with the law and were offered assistance in doing so, but they refused. Five separate Jehovah's Witness organizations were each charged with 7 criminal violations. Each charge carries a fine of up to AUS$144,000 ($157,766 US).

Alabama Clergy Sue Claiming Immigration Law Infringes Churches' Free Exercise Rights

WSFA reports that a federal lawsuit challenging Alabama's new immigration law was filed yesterday by leaders of the Episcopal, Methodist and Roman Catholic churches in the state.  The suit claims that the law (full text) which goes into effect in September infringes plaintiffs' right to the free exercise of religion by barring members of faith communities from carrying out their social ministries to help aliens obtain food, clothing, shelter and worship.  Sec. 13 of the statute prohibits any person, among other things, from encouraging an alien to reside in the state in reckless disregard of the fact that the alien's presence will be in violation of federal law.

Jeffs Seeks Judge's Recusal Based on Revelation From God

In San Angelo, Texas, the sexual assault trial of FLDS leader Warren Jeffs continues.  Yesterday, for the third time, Jeffs attempted to disqualify Judge Barbara Walther.  As reported by the Deseret News, this time Jeffs based his motion on what he said was a revelation from the Lord on Sunday.  Addressing himself directly to the judge, Jeffs said: "I, your lord, say to you, I shall bring to light your evil intent now, before all people, to destroy my Church on earth."  Jeffs' recusal motion contained an appendix containing what he said were revelations to the 19th century Mormon leader Joseph Smith and 29 Orders from the Lord.

Obama Sends Ramadan Greetings To Muslims Around the World

The White House issued a statement (full text) today from President Obama sending his and Michelle Obama's best wishes to Muslim communities in the United States and around the world as Ramadan begins. The statement reads, in part:

For so many Muslims around the world, Ramadan is also a time of deep reflection and sacrifice. As in other faiths, fasting is used to increase spirituality, discipline, and consciousness of God's mercy. It is also a reminder of the importance of reaching out to those less fortunate. The heartbreaking accounts of lost lives and the images of families and children in Somalia and the Horn of Africa struggling to survive remind us of our common humanity and compel us to act. Now is the time for nations and peoples to come together to avert an even worse catastrophe by offering support and assistance to on-going relief efforts.

In the statement, the President also said he is looking forward to again this year hosting an Iftar dinner at the White House.

Ramadan Begins Today

Ramadan begins today. The Wall Street Journal reports on the special difficulties for Muslims when the fasting period comes during long summer days as it does this year. Various government leaders around the world have issued greetings to Muslims for Ramadan, including Australia's Foreign Minister Kevin Rudd (AP of Pakistan), Israel's Prime Minister Benjamin Netanyahu (Arutz Sheva), and rulers of the United Arab Emirates (Gulf News).

Egyptian Rally Presses For Islamic Law In New Constitution

The Wall Street Journal over the week end reported on Friday's rally in Cairo, Egypt by tens of thousands seeking the establishment of Islamic law in the country. Islamists are concerned over last week's supra-constitutional principles issued by the National Council as guidance for a constitutional congress that will be appointed by Parliament in November, after elections.  The principles are designed to assure that Egypt's new constitution will protect individual rights, particularly for women and religious minorities; and that the constitutional congress will include a cross-section political interests, including legal experts, so that Islamists do not dominate it.

Recent Articles of Interest

From SSRN:

• Gerard V. Bradley, We Hold These Truths and the Problem of Public Morality, (Catholic Social Science Review, Vol. 16, pp. 123-132, 2011).
• Luke Beck, The Constitutional Prohibition on Religious Tests, (Melbourne Univeristy Law Review, Vol. 35, No. 2, 2011).
• Michael Watson, Church Property and Disaffiliation Litigation - The Constitutional Dimension, (July 23, 2011).
• Pedro C. Magalhães, Explaining the Constitutionalisation of Social Rights: Portuguese Hypotheses and a Crossnational Test, (December 30, 2010).
• Julia Yael Alfandari, Joanna Dawn Baker, and Regula Amnah Atteya, Defamation of Religions: International Developments and Challenges on the Ground: SOAS International Human Rights Clinic Project, (SOAS School of Law Research Paper No. 09/2011).
• Vinicius Marinho, Constitutional Prophecy, (July 26, 2011).
• Bernard M. Levinson, Esarhaddon’s Succession Treaty as the Source for the Canon Formula in Deuteronomy 13:1, Journal of the American Oriental Society, Vol. 130, No. 3, pp. 337-347, 2010).
• Daniel Ungar, Copyright Enforcement by Praise and Curse: The Colourful Development of Jewish Intellectual Property, (March 1, 2011).
• Lynn D. Wardle, Rights of Conscience vs. Peer-Driven Medical Ethics: ACOG and Abortion, Life and Learning XVIII, (Proceedings of the Eighteenth University Faculty for Life Conference at Marquette University 2008, Joseph W. Koterski, S.J., ed., University Faculty for Life, 2011).
• Michael Heise and Gregory C. Sisk, Religion, Schools, and Judicial Decision Making: An Empirical Perspective, (July 29, 2011).
• Lynn D. Wardle, Protection of Healthcare Providers’ Rights of Conscience in American Law: Present, Past, and Future, (Ave Maria Law Review, Vol. 9, No. 1, 2010).
• Richard W. Garnett, “Things That are Not Caesar’s”: The Story of Kedroff v. St. Nicholas Cathedral, (First Amendment Stories, Richard W. Garnett, Andrew Koppelman, eds., Foundation Press 2011).

From SmartCILP:

• William N. Eskridge, Jr., Noah's Curse: How Religion Often Conflates Status, Belief, and Conduct To Resist Antidiscrimination Norms, [Abstract], 45 Georgia Law Review 657-720 (2011).
• Catherine M.A. McCauliff, Jacques Maritan's Embrace of Religious Pluralism and the Declaration on Religious Freedom, 41 Seton Hall Law Review 593-624 (2011).
• Richard H. Weisberg, Compromise and Constitutionalism: Levinson is to Mr. Justice "Isaiah" as St. Paul Was To the Prophet Isaiah, [Abstract] 38 Pepperdine Law Review 925-935 (2011).
• Fournier, Pascal and Anna Dekker. Book review. (Reviewing Legal Practice and Cultural Diversity, edited by Ralph Grillo, et al.) 19 American University Journal of Gender, Social Policy and the Law 755-764 (2011).
• Thomas J. Molony, Charity, Truth, and Corporate Governance, 56 Loyola Law Review 825-868 (2010).
• Dian Abdul Hamed Shah and Mohd Azizuddin Mohd Sani, Freedom of Religion in Malaysia: A Tangled Web of Legal, Political, and Social Issues, 36 North Carolina Journal of International and Commercial Regulation 647-688 (2011).
• Olivia St. Clair, Building Backwards: Helping Heal Iraq Through Women's Rights, 19 Texas Journal of Women and Law 81-98 (2010).

Air Force Uses Christian Just War Theory As Part of Ethics Training

Controversial reporter Jason Leopold in a posting Wednesday on Truthout  says that U.S. Air Force training for missile officers includes a mandatory session led by chaplains discussing St. Augustine's Just War Theory.  He links to an extensive Power Point presentation  that includes slides asking "Can a person of faith fight in a war?" and "Can war be just?"  Those questions are answered in part with Biblical references. Mikey Weinstein, president of the Military Religious Freedom Foundation, says he has been contacted by Air Force officers who want to have the Christian themes removed from the nuclear weapons ethics training course.

UPDATE: Truthout reported yesterday the Air Force has announced that the Nuclear Ethics and Nuclear Warfare module has been removed from the training curriculum after the publication of Truthout's earlier report on it.

Chapter 11 Plan For Wilmington Diocese Confirmed By Delaware Bankruptcy Court

On July 28, the federal bankruptcy court for the District of Delaware issued an order confirming the Chapter 11 Plan of Reorganization for the Catholic Diocese of Wilmington. The full text of the Plan of Reorganization, Disclosure Statement, the court's finding and confirmation order, and related documents are available online on the Case Administration Website.  Delmarva Now reports that:

Claims related to the religious orders are not part of the diocese plan, but the diocese and all of the parishes named as defendants in the suits will be free of any further litigation when the negotiated releases are signed and payments to survivors made....

Among the nonmonetary terms of the plan are requirements that the diocese release church files on abuser priests and agree to adopt policies and procedures to prevent abuse in the future.... Under the terms of the plan, the diocese will draw on funds from insurance policies, the Catholic Foundation and other non-diocesan Catholic entities to cover the claims. It also has agreed to pump millions of dollars into its underfunded pension plan for lay employees, a situation revealed when the diocese was forced to open its books to the court.

Nine priests and former priests will be excluded from pension and benefit provisions they might have received from the diocese.

The diocese's Bishop W. Francis Malooly issued a statement on Thursday welcoming the court's move. He said in part:

It is my hope and prayer that this plan will give survivors of clergy sexual abuse another means toward the healing that they so need and deserve, and enable us to live up to our commitments to our lay employees and creditors.