Egyptian Government Proposes Anti-Discrimination Law

Voice of America reported yesterday that Egypt's government has proposed an amendment to its criminal code that would outlaw discrimination against people or a sect "due to gender, origin, language, religion or belief."  Violation would be punishable by a jail sentence of at least 3 months. The new law is aimed at  preventing attacks on the country's minority Coptic Christians. The military must approve the law before it goes into effect.

Suit Challenges Florida's New System For Review of Textbooks

The Florida Independent reports that a group known as Citizens for National Security announced that they were filing suit yesterday in Florida state court to enjoin the effectiveness of Florida S.B. 2120 which, among other things (Sec. 21), calls for two state or national experts to review instructional materials that are up for adoption each year. A third expert is to resolve disagreements between the two.  The complaint (full text) alleges that this provision conflicts with the mandate in the state constitution to provide for a high quality system of schools:

15. It is not possible for two people to review all the textbooks in Florida within a 4 month period of time and thus Senate Bill 2120 renders it impossible for the Defendants to provide high quality education to all children in Florida as required by law....

17. The present danger of fundamentalist religion is often obscured, the negative influence of fundamentalism is downplayed and the teaching of one of the greatest scientific breakthroughs of all times, i.e. "evolution" is often ignored, questioned or denied due to the failure of this State to properly monitor its textbooks.

18. Rather than fix the problem, Senate Bill 2120 exacerbates the problem and renders it impossible for any meaningful review of textbooks to take place, and all but assures that the education of the students of Florida will be inaccurate, biased and substandard.

19. Prior to the enactment of SB 2120, Plaintiff CFNS had nominated close to 30 highly qualified lay citizens consisting of teachers, former teachers, education professionals and well educated citizens to serve on the State Instructional Materials Committee to review the textbooks to be used by the students of Florida. With the enactment of SB 2120, none of these nominees will have an opportunity to serve in this capacity and instead only 2 or 3 so-called experts who are hand-picked by Defendant FDOE will review all textbooks used in Florida.

Ministerial Exception Defense Rejected In Racial Discrimination Suit By Administrative Assistant

A North Carolina federal district court has rejected a religious organization's "ministerial exception" defense in a Title VII racial discrimination case brought by a former administrative assistant in the group's Global Ministries office.  In McCallum v. Billy Graham Evangelistic Association, 2011 U.S. Dist. LEXIS 86997 (WD NC, Aug. 5, 2011),  the court held that the former employee who was the only African American in the organization's executive offices could move ahead with a discrimination claim based on a downsizing that eliminated only her job and which came after she complained that African American congregations were not being invited to participate in a summer camp youth program.

At this stage of the proceedings, BGEA has not demonstrated that the Church Autonomy Doctrine bars Plaintiff's lawsuit or that McCallum's former job as an Administrative Assistant in Global Ministries falls within the ministerial exception. Here, McCallum's position did not entail traditional ministerial functions such as teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship. Nothing in the record suggests that McCallum had decisionmaking authority or substantive input regarding the content of BGEA's religious message, the delivery or expression of the message, or its intended audience.... McCallum's primary function was to provide administrative or clerical support....

 Although the Court holds that Plaintiff was not in a ministerial role... McCallum's claim, is likely to pose the very type of entanglement issue that the Church Autonomy Doctrine and ministerial exception seek to avoid.... [It will] necessarily call into question BGEA's outreach decisions.... As a practical matter, the Court contemplates that as the case proceeds there will be certain doctrinal topics that will, in fact, remain "off-limits."

The court, however, dismissed plaintiff's second claim in the lawsuit-- Title VII retaliation.  The court held that the alleged retaliation was in response to plaintiff's questioning the organization's summer camp invitee list, not in response to her opposing an employment practice, as required by Title VII.

Enforcement of Zoning Code Does Not Amount To Conspiracy To Infringe Free Exercise Rights

In Salman v. City of Phoenix, 2011 U.S. Dist. LEXIS 86984 (D AZ, Aug. 5, 2011), an Arizona federal district court dismissed a suit that had been brought by a couple who were born-again Christians who alleged that the city of Phoenix and certain city officials and employees had conspired to deprive them of their rights to the free exercise  of religion.  The claims grew out of the city's execution of a search warrant, other enforcement activities and prosecution of plaintiffs for various building and zoning code violations.  Plaintiffs were using their home and an adjacent building for religious services which 40 to 50 people attended, and displayed in their yard of a reader board containing Biblical verses. The court concluded that:

Plaintiffs' allegations describe only defendants' repeated efforts to enforce the law, in accordance with the responsibilities of their employment. Such actions alone cannot constitute an agreement to deprive plaintiffs of their legal rights. In the absence of any allegations of an actual agreement, plaintiffs' claim for civil conspiracy fails as a matter of law.

Fired Employee, Believer In Theosophy, Sues Over Retaliation, Complaints About Yarmulke

Yesterday's New York Post reports on a religious discrimination lawsuit filed in New York federal district court against the consulting firm McKinsey & Co. by a former employee who says he was fired after going to the police to complain about threats he received for going to the company's Human Resources department. In the lawsuit, Ciro Rosselli alleges that problems began when he wore a yarmulke to work as an expression of his practice of "theosophy", a movement that finds truth in all religions.  He was subjected to a stream of taunts by fellow-employees and his supervisors. For example, his boss sent him an e-mail comparing him to Kabbala admirer Madonna.

Philippine Cultural Center Closes Exhibit Offensive To Christians

In the Philippine capital of Manila, the board of the government-run Cultural Centre of the Philippines has closed down an exhibit that included works by local artist Mideo Cruz which Christians found highly offensive.  AFP reports that the exhibit, which opened June 7, included a Cruz poster of Jesus with a wooden penis glued to his face, a cross made of discarded wood with a penis attached, and Jesus with a red clown nose and Mickey Mouse ears.  The closure comes after a group of Christian lawyers said it was filing charges with the government ombudsman accusing the Centre's management with violating the law against "immoral doctrines that violate religion." It also wants those responsible for the exhibit suspended or fired. Philippine president Benigno Aquino says he called the Centre and told the staff he was opposed to the exhibit.  The Centre board said it had received an increasing number of threats to person and property over the exhibit.

New Study Shows Increasing World Restrictions On Religion

The Pew Forum on Religion and Public Life yesterday released a new report on the rising restrictions on religion around the world. The report (full text) uses both a government restrictions index and a social hostilities index in examining restrictions on religious beliefs and practices. The report concludes:

Restrictions on religious beliefs and practices rose between mid-2006 and mid-2009 in 23 of the world’s 198 countries (12%), decreased in 12 countries (6%) and remained essentially unchanged in 163 countries (82%)....

Because several countries with increasing restrictions on religion are very populous, however, the increases affected a much larger share of people than of states. More than 2.2 billion people – nearly a third (32%) of the world’s total population of 6.9 billion – live in countries where either government restrictions on religion or social hostilities involving religion rose substantially over the three-year period studied. Only about 1% of the world’s population lives in countries where government restrictions or social hostilities declined.

Christian Century summarizes the report.

Jeffs Receives Life In Prison

[Updated] CBS and CNN report that FLDS leader Warren Jeffs was sentenced to life imprisonment today in his sexual assault trial. The jury imposed the life sentence on one count of aggravated sexual assault and an additional 20 years in prison and a $10,000 fine on a charge of sexual assault. These were the maximum sentences available on each count. The victims were underage girls that Jeffs took as his "spiritual wives."  The Texas jury deliberated for less than half an hour in the penalty phase of the trial. (See prior related posting.)

Free Exercise Claim In Tax Exemption Dispute Moves Forward

Michael v. Letchinger, 2011 U.S. Dist. LEXIS 86685 (ND IL, Aug. 5, 2011), involves zoning and tax disputes between George and Susan Michael and the village of Lake Bluff, Illinois.  The Michael's converted a portion of their expensive lake front home into what they claimed was an Armenian Orthodox Church, because Susan's health made it difficult for her to travel to an existing church in Chicago. They transferred ownership to a new religious corporation they created.  They then initially convinced the state of Illinois to grant a religious property tax exemption for their home. (See prior posting.)  The complaint alleges that village officials then began a campaign to drive the Church out of existence and reverse the tax exemption. The exemption was reversed, and the exemption denial was upheld by the Illinois courts.  This federal court lawsuit seeks $10.5 million damages for the actions of village and state officials. The court dismissed most of plaintiffs' claims, but permitted them to proceed on their claim that their free exercise rights were violated by the discriminatory enforcement of zoning and building codes against them. They claim that the enforcement was motivated by animus against the Armenian Orthodox Church.

Summum Discussing Offering Released Time Program In Utah

In Utah, according to yesterday's Salt Lake Tribune, it is common for high school students to take advantage of the state's released time program to enroll in LDS seminary classes that are offered in LDS Church-owned buildings near public high schools. Last year over half of Utah's high school students were enrolled in LDS seminary classes. The Canyons (UT) school district is building a new $55 million high school, and an adjacent parcel of land has long been designated as "seminary" on architectural plans with school board officials assuming it would be used by a religious organization of a released-time program. The LDS Church has expressed some interest in buying the land. Now, however, the Summum movement has inquired about purchasing the land to build its first seminary.  It wants to use the seminary for a released time program that teaches "the principles of the universe."

UPDATE: The Salt Lake Tribune (Aug. 17) reports that the Canyons school board has decided not to sell the land to anyone for a seminary.

In Nigeria, Christians Planning Non-Interest Banking To Parallel Islamic Finance

Last year, the Central Bank of Nigeria created controversy when it issued guidelines for Shariah-compliant financial institutions. (See prior posting.) Now, according to The Moment yesterday, Christian groups in Nigeria that have unsuccessfully attempted to get the Central Bank to withdraw its guidelines are taking a new approach. They are planning to apply for a license to operate a non-interest bearing bank that would operate according to Christian principles. This is seen as a test of the Central Bank's pledge that other groups seeking to create non-interest institutions would be given the same attention as Islamic banks, and that the Central Bank would issue guidelines for those institutions as well.

Canadian Judge Rejects Biblical Verses As Defense To Assault Charges

In the Canadian city of Halifax, Nova Scotia, a provincial judge has convicted Cornelius Jones on a number of counts of assault, as well as of uttering threats, resisting arrest and failing to appear in court.  Yesterday's Halifax Chronicle Herald , as well as CBC News, report that Jones, representing himself, defended against the charges of assaulting his wife and his 3-year old daughter by quoting Biblical verses that he says call for wives to submit to their husbands, and for disciplining children with the rod.  The judge urged Jones to retain counsel to represent him at the sentencing stage, telling Jones: "If Jesus Christ was here I would be recommending that he have a lawyer." Jones' brother told the court that he believes Jones needs psychiatric held, but says Jones has refused help from his family.

Jehovah's Witness Loses Malpractice Suit Complaining About Life-Saving Blood Transfusion

In DiGeronimo v. Fuchs, (NY S.Ct. Richmond Cty., Aug. 4, 2011), a New York trial court dismissed a medical malpractice claim brought against a doctor who saved a woman's life by giving her a blood transfusion. Plaintiff, a Jehovah's Witness, objected on religious grounds to the transfusion which became necessary due to complications after she delivered a child.  Her husband signed a consent for the transfusion when he was advised that without it his wife would die.  The court held:

there is no precedent for finding medical malpractice when a blood transfusion was the proximate cause of saving a life. Here, the plaintiff may be offended or even emotionally distressed that another person's blood was transfused into her body, which is apparently not in keeping with her beliefs as a Jehovah's Witness. Notwithstanding the fact that the plaintiff's husband, another Jehovah's Witness who was her health care proxy, signed a consent for the transfusion, the plaintiff's emotional distress concerning the blood transfusion does not rise to the level of an injury, as that term is used as an element of a medical malpractice action.

.... Since the plaintiff's transfusion saved her life, this action is analogous to one for "wrongful life" against the doctor. However, there is no cause of action for "wrongful life" in the State of New York.

 SI Live reports on the decision.

Indian Court Tells Counsel To Read Gita Before Arguing Case

In the Indian state of Madhya Pradesh, the government has ordered schools to incorporate "Gita Sar"-- the essence of Gita-- into the curriculum. According to yesterday's  Indian Express, the Catholic Bishops Council last month filed suit asking the Madhya Pradesh high court to order the government to instead include a summary of all religions in the curriculum, and not to favor a particular faith.  Plaintiffs argued that giving other religions equal prominence with Hinduism conforms to the Constitutional idea of a secular India.  Last week, the court issued an order instructing plaintiff's counsel to take two months to read the entire Gita before arguing the case so that counsel can "clearly understand whether the Gita is a philosophy of life or is associated with any religion."

Catholic Hospitals Say Exemption For Mandated Contraceptive Coverage Is Too Narrow

As previously reported, last month the Departments of Treasury, Labor and HHS issued for comment interim final rules on preventive health care services for women. They include an exemption for "religious employers" from the requirement that insurance plans fully cover contraceptive services. However, according to Fox News yesterday, Catholic hospitals, among others, object that the exemption is too narrow.  Under the interim rules, a religious employer is defined as

an organization that meets all of the following criteria: (1) The inculcation of religious values is the purpose of the organization. (2) The organization primarily employs persons who share the religious tenets of the organization. (3) The organization serves primarily persons who share the religious tenets of the organization. (4) The organization is a nonprofit organization as described in ... the Internal Revenue Code....

Sister Carol Keehan, president of the Catholic Health Association, calls this "the parish housekeeper exemption", because she says that is about all it covers.  The exemption is not broad enough to cover Catholic hospitals, most of which currently do not cover contraceptive services in the insurance plans they provide their employees. The Catholic Health Association supported President Obama's health care reform when it was working its way through Congress. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Scott Thomas Fitzgibbon, Parent, Child, Husband, Wife: When Recognition Fails, Tragedy Ensues, (Brigham Young University Journal of Public Law, Vol. 25, No. 2, 2011).
• Michale J. Klarman, David A. Skeel, and Carol S. Steiker, Introduction: Appreciating Bill Stuntz, (The Political Heart of Criminal Procedure: Essays on Themes of William J. Stuntz, Cambridge University Press, 2012).
• David A. Skeel and Tremper Longman, The Mosaic Law in Christian Perspective, (U of Penn Law School, Public Law Research Paper No. 11-25, June 30, 2011).
• Patrick Parkinson, Accommodating Religious Beliefs in a Secular Age: The Issue of Conscientious Objection in the Workplace, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 281-299, 2011).
• Asma Uddin, The UN Defamation of Religions Resolution and Domestic Blasphemy Laws: Creating a Culture of Impunity, (July 14, 2011).

American Political Science Association 2011 Annual Meeting Papers on SSRN:

• Bo Rothstein and Rasmus Broms, Why No Democracy in the Arab Muslim-World? The Importance of Temple Financing.
• Juliana Horowitz and Neha Sahgal, Modernizers vs. Fundamentalists: How Religion, Politics and Economics Shape Attitudes in the Muslim World.
• Virgil Stanford and Elizabeth Brewer, Dominion or Stewardship: Understanding the Role of Religiosity in Forming Attitudes about the Environment through Pathway Analysis.
• Christian Bjørnskov and Niclas Berggren, Does Religiosity Promote or Discourage Property Rights and the Rule of Law?.
• Geoffrey A. Evans and Ksenia Mankowska, Belonging But Not Believing (Strongly): Examining the Political Implications of the Resurgence of Orthodoxy in Post-Soviet Russia.

From SmartCILP:

• Mala Htun and S. Laurel Weldon, State Power, Religion, and Women's Rights: A Comparative Analysis of Family Law, [Abstract], 18 Indiana Journal of Global Legal Studies 145-165 (2011).

Kansas High Court Rules On Relevance of Parent's Religion In Custody Determination

In Harrison v. Tauheed, (KA Sup. Ct., Aug. 5, 2011), the Kansas Supreme Court affirmed a trial judge's decision to award custody of a 5-year old boy to the child's mother, a Jehovah's Witness, over the objections of the child's father who also sought custody. The father argued on appeal that the trial court erred in refusing to consider the negative impact on the boy of his mother's religious beliefs and practices. The Supreme Court held:

Disapproval of mere belief or nonbelief cannot be a consideration in a custody determination—judges are not trained to mediate theological disputes. Yet consideration of religiously motivated behavior with an impact on a child's welfare cannot be ignored. It is one of the many relevant factors that must be part of the holistic custody calculus required under Kansas law....

Just as mere religious beliefs cannot be solely determinative of custody, a court may not speculate about behavior that religious beliefs may motivate in the future.... A court also may not weigh the merit of one parent's religious belief or lack of belief against the other's. Nothing in law school or practice in any setting qualifies a judge for this task, and any judicial effort to tackle it is far too likely to lead to the substantial impairment of the free exercise of religion... Courts must be vigilant to avoid invidious discrimination against religious beliefs or practices merely because they seem unconventional. The consideration of religiously motivated actions as a part of holistic evaluation of the best interests of the child, while excluding consideration of religious beliefs, strikes an appropriate balance among the free exercise rights of each parent; the right of each parent to the care, custody, and control of his or her child; and the welfare of the child....

The court concluded that the trial judge's decision met this standard.

Closed Questioning In Voir Dire of Potential Juror Who Objected To Oath Leads To Reversal of Conviction

In State of Washington v. Abbey, (WA App., Aug. 5, 2011), a Washington state appeals court reversed and remanded for a new trial the voyeurism conviction, and unusual 60-month sentence (because of past convictions for attempted voyeurism), of a defendant who was charged with looking into a bathroom window as a woman was getting out of the shower.  The reversal was based on the manner in which the court questioned a juror who, because of religious objections, failed to take the juror's oath during voir dire.  The judge questioned the juror (with both counsel present) in the hallway outside of the court room instead of in open court. The juror told the judge that it is against his religious beliefs to judge a fellow human being. The court held that defendant's right to a public trial was violated when the judge excluded the public from this questioning of the juror without first conducting a hearing to determine whether the courtroom should be closed to the public. The court said:

Here, what began as a ministerial matter, i.e., finding out why the juror refused to stand and take the oath, soon evolved into a discussion highly relevant to whether the State or defendant felt that the juror should serve, such that the State even suggested removing the juror for cause. What transpired was an investigation into the juror’s ability to serve, a matter neither ministerial nor trivial, and how his religious beliefs interfered with his ability to pass judgment or render a verdict.

Judge Quinn-Brintnall concurred on the ground that the defendant was excluded from the hallway questioning. Only his counsel was present.

San Francisco Moves To Require More Disclosure By Crisis Pregnancy Centers

In a press release last week, San Francisco City Attorney Dennis Herrara and Board of Supervisors member Malia Cohen announced joint legal and legislative steps against misleading advertising by crisis pregnancy centers.  On Aug. 2, Cohen introduced the “Pregnancy Information Disclosure and Protection Ordinance", the full text of which is included in the press release.  The proposed law bars dissemination of untrue or misleading statements concerning services offered at such centers.  At the same time, Herrara sent a letter to First Resort, Inc. demanding that it change its website to eliminate language that falsely suggests that it offers, or make referrals for, abortion services. The organization has purchased a paid Google search link, that causes its website to appear near the top of the search results for "abortion in San Francisco." The full text of the demand letter is also included with the press release. Catholic News Service reports on these developments. [Thanks to Isaiah Sage for the lead.]

Recent Prisoner Free Exercise Cases

In Riley v. Beard, 2011 U.S. Dist. LEXIS 83445 (MD PA, July 29, 2011), a Pennsylvania federal district court rejected prison officials' motion for reconsideration and permitted a Muslim inmate to proceed with his claims that his rights were violated when dates he used to break the Ramadan fast were confiscated from his cell.

In Lacey v. Braxton, 2011 U.S. Dist. LEXIS 84313 (WD VA, Aug. 1, 2011), a Virginia federal district court dismissed claims by an inmate who was a member of the House of Yahweh that his religious books and his tallit were wrongfully confiscated.

In Shepherd v. Fisher, 2011 U.S. Dist. LEXIS 84110 (SD NY, July 27, 2011), a New York federal district court refused to permit a Rastafarian prisoner to amend his complaint to charge the deputy superintendent with denying him specially requested religious meals on holy days.

In Henry v. Schriro, 2011 U.S. Dist. LEXIS 84883 (SD NY, Aug. 2, 2011), a New York federal district court dismissed a Jewish inmate's claim for $9.999 billion in damages for denial of his request for matzoh and grape juice.

In Cardew v. Bellnier, 2011 U.S. Dist. LEXIS 84949 (ND NY, Aug. 2, 2011), a New York federal district court adopted a federal magistrate's recommendations (2010 U.S. Dist. LEXIS 143515, Dec. 9, 2010) and dismissed inmates' challenge to prison rules that called for consideration of ethnic and religious backgrounds in determining double celling assignments. The court also dismissed plaintiffs' claims that authorities violated their 1st Amendment rights and rights under RLUIPA by serving all inmates meals without red meat on Ash Wednesday and Fridays during Lent.

In Florez v. McCormac, 2011 U.S. Dist. LEXIS 85214 (D CO, Aug. 3, 2011), a Colorado federal district court dismissed on statute of limitations grounds an inmate's complaint that his Bible was confiscated and destroyed and he was unable to obtain a replacement Bible for 138 days.  The court rejected the argument that the the limitations period had not run because this was a "continuing violation" of plaintiff's rights.

In Fricks v. Upton, 2011 U.S. Dist. LEXIS 81373 (MD GA, July 26, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85071, April 14, 2011) and permitted an inmate to move ahead with his claim that his free exercise rights were infringed, though the magistrate judge expressed doubt that plaintiff's Church of Creativity qualifies as a religion.

In Grumbley v. Michigan, 2011 U.S. Dist. LEXIS 85940 (WD MI, Aug. 4, 2011), a Michigan federal district court dismissed a Jewish inmate's complaint that his rights were violated when prison authorities would allow him to use a prayer shawl purchased with prison funds only if it was marked as prison property.

In Jernigan v. Atkins, 2011 U.S. Dist. LEXIS 85773 (ND FL, Aug. 4, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 85879, June 30, 2011) and permitted a Muslim inmate to proceed against certain defendants with his claim that he was denied adequate food at times that would permit him to observe the Ramadan fast.

In Briley v. Cole, 2011 U.S. Dist. LEXIS 86345 (ED AR, Aug. 4, 2011), an Arkansas federal district court adopted a portion of a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 86383, July 8, 2011), and dismissed an inmate's free exercise complaint, holding that occasional failure to provide plaintiff with a completely meatless meal did not substantially burden the practice of his religious beliefs.

In Romero v. Lappin, 2011 U.S. Dist. LEXIS 86435 (ED KY, Aug. 4, 2011), a Kentucky federal district court held that guards at a federal prison were protected by qualified immunity in both constitutional and RFRA damage claims alleging that they violated the religious rights of a Native American prisoner by removing a length of green string from his prayer feather.