Tennessee Sheriff Changes Rules On Mug Shots of Those Wearing Religious Head Coverings

Yesterday's Tennessean reports that in Nashville,  the Davidson County, Tennessee sheriff's office has revised its policy regarding wearing of religious head coverings for mug shots.  A person wearing religious head covering who is being booked into the county jail will first have a mug shot taken with the head covering on.  Then a second photo will be taken with the head covering removed from the person's face.  This photo will be taken only in the presence of a same-sex guard, and will be kept in a confidential file that can only be opened by court order.

Barber Shop Closed Down After Inspectors Find Palo Mayombe Altar and Animals

In New Bedford, Massachusetts on Tuesday, the state Division of Professional Licensure closed down a downtown barber shop after animal control officers found evidence that the shop's owner, William Camacho, was engaging in ritualistic animal sacrifice there.  According to the New Bedford Standard-Times, Camacho is a practitioner of Palo Mayombe.  A routine fire and building inspection turned up two chickens and four roosters (one dead) in cages next to a religious altar in the barber shop's basement. Camacho says he does not sacrifice the animals at the barber shop, but only at ceremonies in rural settings.

UPDATE: According to  New Bedford's health director, the barber shop was ordered closed because of the health problems that could result from fecal matter found on the basement floor where the animals were located. The inspection was prompted by an anonymous complaint that roosters were heard crowing. (Standard-Times, Aug. 18).

New York City Council Strengthens Law's Requirement To Accommodate Religious Observance

The Empire reports that yesterday New York City Council passed an amendment (full text) to the city's Human Rights Law making it more difficult for both private and governmental employers to refuse to accommodate employees' religious practices.  The amendment was particularly an effort to address problems that the large Sikh community in Queens has faced in seeking to wear turbans while employed by the New York Police Department. The amendment requires the employer to show significant expense or difficulty would be involved in accommodating an employee before denying an accommodation request.

Georgia City Approves Controversial Mosque

The Atlanta Journal Constitution reports that yesterday the Lilburn, Georgia city council voted 3-1 to approve the controversial rezoning request of a Muslim congregation to build a 20,000 square foot worship center to meet the needs of the city's growing Muslim population.  Council had twice before rejected the rezoning request that would have permitted the Dar-E-Abbas congregation to buy up land surrounding its current mosque and expand. Last December, council deadlocked 2-2 over the request, though zoning amendments last September permitted the congregation to create a cemetery less than a half mile away. (Atlanta Journal Constitution).  Dar-E-Abbas will now drop its federal discrimination lawsuit against Lilburn which it brought in 2009, but the Department of Justice is still investigating whether the city has violated the Religious Land Use and Institutionalized Persons Act.

No Free Exercise Violation In Requiring Dog Be Vaccinated Before Being Adopted From City Shelter

In a variation on the typical free exercise objection to vaccination requirements, a Florida federal district court has dismissed a claim that the Department of Animal Services in Clearwater, Florida violated a Largo, Florida man's rights by insisting that the dog he wished to adopt first have various shots.  In Fohrmeister v. Doe, 2011 U.S. Dist. LEXIS 90702 (MD FL, July 27, 2011), a federal magistrate judge, in an opinion adopted by the court (2011 U.S. Dist. LEXIS 90704, Aug. 15, 2011), held that the pro se plaintiff had failed to allege sufficient facts to make clear what his religious beliefs were. Moreover, "the burden posed by the applicable law on any religious belief or practice appears tangential and attenuated at best."

FFRF Objects To Funding Improvement In Church Building Being Used For Public Pre-School Class

Last week, the Cedar Falls, Iowa Board of Education, short on space for its pre-school classrooms, voted to locate one of them in Kaio Church, next door to an existing elementary school.  The Board approved spending over $61,000 to add handicap accessible restrooms, installing emergency exits, abating asbestos and otherwise bringing the space up to building code requirements. (WCF Courier 8/9). Now, according to yesterday's WCF Courier, the Freedom from Religion Foundation has written the Board contending that the contract violates Art. I, Sec. 3 of the state constitution which provides:

nor shall any person be compelled to attend any place of worship, pay tithes, taxes, or other rates for building or repairing places of worship....

School Superintendent David Stoakes disagrees, saying: "Separation has to do with programming, not the facility. We are not going to be propagating any religion in our preschool program."

Report Disputes Data On Decrease of Christian Population In West Bank, Gaza and Jerusalem

Seeking to counter reports accusing Israel of creating a mass exodus of Palestinian Christians from Palestinian areas, the Jewish Council on Public Affairs yesterday announced the release of a report (full text) on the size of the Christian population in the West Bank, Jerusalem and Gaza. Here is an excerpt:

What is misleading about the way the story has been told about a diminishing Palestinian Christian population?

1) Population: We are told that the population is small. In reality, though, it has never been large. The most important part of the story is that the significant drop in Christian population in the West Bank occurred years ago. Some Palestinian Christians became refugees in 1948. Others left during Jordanian rule from 1948-1967. Since 1967, when the West Bank came under Israel and later Palestinian Authority administration, the population has not decreased. In fact, according to almost all sources, it has increased – just at a rate slower than it would have increased without emigration. Hypothetic data showing how the population might have increased are speculative and questionable.

2) Percentage: The percentage of Christians in the West Bank has decreased dramatically. This is largely due to the exponential increase in the surrounding Muslim population. Emigration and low birth rate are real, but pale in comparison to the dramatic increase in the Muslim demographic. In many instances, the data used for comparison reference different areas, making the decrease seem more stark than it really is.

Suit Challenges City's Transfer of Property To Catholic High School For Athletic Complex

Americans United announced yesterday that it, along with the ACLU of Indiana, has filed a lawsuit in federal district court challenging plans of the South Bend (IN) Common Council to use $1.2 million in economic development funds to purchase property that was the site of a retail store, tear down the building on it, and transfer it for $1 to the Catholic Diocese so St. Joseph's High School can use the property for part of its new $35 million football stadium and athletic complex. The complaint (full text) in Wirtz v. City of South Bend, Indiana, (ND IN, filed 8/16/2011), alleges that the property transfer violates the Establishment Clause, as well as Art. I., Secs. 4 and 6 of the Indiana constitution.  According to the complaint, while the Diocese intends to permit the football stadium to be used by the city or by public schools, this will be limited to times when it is not being used by St. Joseph's teams, and the Diocese may charge others for use of the stadium. (See prior related posting.)

Custody Order Violates Establishment Clause

In Rosenstein v. Rosenstein, (TX App., Aug. 11, 2011), a Texas appeals court held that in a divorce action, the trial court violated the mother's Establishment Clause rights when, in an amended decree, it awarded the father exclusive possession of the couple's children on four Jewish religious holidays, and on every Sunday morning.  The wife argued, in part, that this precluded her from having an opportunity to furnish her children religious education on Sunday, her primary day for attending church. The decree awarded the wife possession of the children on Thanksgiving, Christmas, New Year's day and Easter.  However, the father's religious holiday rights took precedence, so that conflicts between Passover and Easter, or Hanukkah and Christmas, would result in the father having the children on those days.  In reaching its conclusion, the court quoted an earlier state appeals court decision holding that "it is a fundamental principle that the State cannot prefer the religious views of one parent over the other in deciding the best interest of a child."

Bachman's Religious Views Traced In New Yorker Article

The New Yorker this week carries a long article on Michelle Bachman titled Leap of Faith-- The Making of a Republican Front-Runner.  The piece, by Ryan Lizza, gives special attention to the content and development of Bachman's religious beliefs.  Lizza writes:

Bachmann belongs to a generation of Christian conservatives whose views have been shaped by institutions, tracts, and leaders not commonly known to secular Americans, or even to most Christians. Her campaign is going to be a conversation about a set of beliefs more extreme than those of any American politician of her stature, including Sarah Palin, to whom she is inevitably compared. Bachmann said in 2004 that being gay is “personal enslavement,” and that, if same-sex marriage were legalized, “little children will be forced to learn that homosexuality is normal and natural and that perhaps they should try it.” Speaking about gay-rights activists, that same year, she said, “It is our children that is the prize for this community.” She believes that evolution is a theory that has “never been proven,” and that intelligent design should be taught in schools.

Town Racks Up High Legal Bills In Code Enforcement Against Non-Profit

The town of Springdale, Washington has so far spent over $34,000 (over 20% of the town's annual budget) in a 2-year battle to enforce its building code against Dawud Ahmad, who says he is a Muslim sheik, and claims he has the right to live in a shed that does not meet building code requirements.  The shed is owned by a non-profit organization, Muslim America.  Ahmed is the organization's registered agent.  He claims that Muslim America is exercising its religious right to offer shelter to a homeless member of its organization. According to yesterday's Spokane (WA) Spokesman Review, last October a trial court rejected Ahmed's attempt to require the town to grant a building code exemption for the property. The court also ordered Ahmed and Muslim America to pay the town's legal bills of nearly $24,000. Plaintiffs, however, have appealed the decision, causing the city to have to spend another $10,000 on legal fees. The court has allowed Ahmed to sue in forma pauperis, so he has not had to pay any filing fees.

Trial Court Refuses Temporary Injunction In Indiana School Voucher Challenge

An Indiana trial court judge has refused to issue a temporary injunction to block the state's new school voucher program.  In Meredith v. Daniels, (IN Super. Ct., Aug. 15, 2011), plaintiffs claimed that the new Choice Scholarship Program violated various provisions of the Indiana Constitution: Art. 8, Sec. 1 ("General and Uniform System of Common Schools" clause); Art. 1, Sec. 4  (no compulsion to support any place of worship); and Art. 1, Sec. 6 (no government funds may be spent for the benefit of any religious institution).  The court concluded that plaintiffs are unlikely to succeed on the merits of any of these claims. It held that Art. 1, Sec. 4 "does not preclude the use of general tax revenues to fund scholarships that may be used, at the discretion of scholarship recipients, to pay for education at religious schools."  It also held that Art. 1, Sec. 6 does not invalidate the CSP because the scholarship program "was enacted 'for the benefit' of students, not religious institutions or activities."  NWI Times reports on the decision.

Texas DA Looking Into Pastor's Role In Circulating Recall Petitions

In El Paso, Texas, Pastor Tom Brown and his Word of Life Church are under investigation by El Paso County district attorney Jaime Esparza for violation of state election laws. Brown is the leader of a recall drive aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. When the city initially offered health benefits to same-sex couples, an initiative repealed those benefits, but also-- apparently inadvertently-- ended health benefits for 100 others as well. (See prior posting.) So City Council, in a tie vote broken by the mayor, voted to restore everyone's benefits. According to the El Paso Times, on Friday the district attorney announced that he is looking into whether efforts by Brown to circulate recall petitions at churches violates the state election code that prohibits corporations, including non-profit corporations, from circulating and submitting petitions to call an election. Americans United has already complained to the IRS about possible tax code violations growing out of Tom Brown Ministries' activities promoting the recall. (See prior related posting.)  Wall of Separation blog has more regarding AU's views.

Amicus Briefs In Hosanna-Tabor Case Are Available Online

All of the amicus briefs have now been filed with the U.S. Supreme Court in Hosanna-Tabor Church v. EEOC, a case raising the question of the scope of the "ministerial exception" to federal non-discrimination laws. (See prior posting.) The briefs are all available online from the ABA's website (along with briefs from the parties). Of the 30 amicus briefs filed, 21 support petitioner and 9 support respondent.  Oral argument is scheduled for Oct. 5.  [Thanks to Marty Lederman via Religionlaw for the lead.]

Egyptian Official Releases Constitutional Principles Document

AlMasry AlYoum on Sunday published an abridged version of the document titled "Basic Constitutional Principles" which Egypt's deputy prime minister for political affairs has presented to several political parties for their comment. (See prior related posting.) In outlining the suggested role for religion and religious freedom, the document reads in part:

Islam is the state religion, the Arabic language is its official language, and Islamic Sharia is the primary source of legislation. Non-Muslims resort to their own laws in regards to their personal issues and religious affairs.....

Human dignity is every person’s genuine right, and all Egyptian citizens are free and equal before the law in rights and freedoms and general obligations. Discrimination among them due to sex, origin, language, religion, creeds, wealth, social status, political views, or disabilities or anything of that sort is forbidden.

...The state guarantees freedom of belief, worship, and religious slogans and protects the role of worship.

FLDS Faithful Are Erecting Statue of Warren Jeffs

The Daily Beast reported last week that followers of FLDS leader Warren Jeffs are planning to erect a 38-foot tall statue of Jeffs at the activity center of the Fundamentalist Church of Latter Day Saints' compound in Short Creek, on the Utah-Arizona border. The statue is being constructed in seven pieces in a hidden warehouse in San Angelo, Texas where Jeffs criminal trial on sexual assault charges has recently ended. (See prior posting.)  Plans are for the statue to go up next month as a way of showing that authorities cannot take Jeffs away from his followers, despite his recent conviction.

Recent Articles of Interest

From SSRN:

• Wibren Van der Burg, Inclusive Neutrality in the Classroom, (Yearbook of the European Association for Education Law and Policy, 2011).
• Jason J. Kilborn, Foundations of Forgiveness in Islamic Bankruptcy Law: Sources, Methodology, Diversity, (August 11, 2011).
• Jeremy Waldron, What are Moral Absolutes Like?, (August 8, 2011).
• Barbara J. Cox, Why Appellate Courts Have Rejected the Argument that the Defense of Marriage Act Trumps the Parental Kidnapping Prevention Act, (California Western International Law Journal, Vol. 41, No. 189, 2010).

From SmartCILP:

• Capt. Evan R. Seamone, Divine Intervention: The Ethics of Religion, Spirituality, and Clergy Collaboration in Legal Counseling, 29 Quinnipiac Law Review 289-373 (2011).
• Symposium. Twenty Years After Employment Division v. Smith: Assessing the Twentieth Century's Landmark Case on the Free Exercise of Religion and How It Changed History. Articles by David B. Frohnmayer, Marci A. Hamilton, Alan Brownstein, Angela C. Carmella, Daniel O. Conkle, James G. Dwyer, Stephen M. Feldman, Richard W. Garnett, Leslie C. Griffin, B. Jessie Hill, Steven D. Jamar, Ira C. Lupu, Robert W. Tuttle, William P. Marshall, Linda C. McClain, Richard Schragger, Steven D. Smith, Nelson Tebbe and Laura S. Underkuffler. 32 Cardozo Law Review 1655-2091 (2011).

Straw Poll Winner Bachman Interviewed About Her Religious Views

On today's broadcast of Meet the Press (full transcript), host David Gregory interviewed Minnesota Rep. Michelle Bachman who won yesterday's Ames, Iowa Republican "straw poll" for the Republican presidential nomination.(Full results).  Gregory and Bachman engaged in an extensive discussion of Bachman's religious views. Here is a lengthy excerpt:

MR. GREGORY: ... I want to move on to another topic that's deeply meaningful and important to you, and that's your faith in God.... I want to ask you about, not only the role God plays in, in your life but to what extent he's a motivator for decisions that you make. One example that's gotten some attention is some remarks you made back in 2006....

(Audiotape, October 14, 2006) REP. BACHMANN: My husband said, "Now you need to go and get a post-doctorate degree in tax law." Tax law! I hate taxes. Why should I go and do something like that? But the Lord says, "Be submissive, wives, you are to be submissive to your husbands." (End audiotape)

MR. GREGORY: Is that your view for women in America? Is that your vision for them?

REP. BACHMANN: Well, I--during the debate I was asked a question about this, and my response was is that submission, that word, means respect. It means that I respect my husband and he respects me.... We have a mutual partnership in our marriage, and that's the only way that we could accomplish what we've done in life is to be a good team....

MR. GREGORY: To what extent does your relationship with God mean that you take cues from God for decisions that you make and that you would make as president....

REP. BACHMANN: Well, as president of the United States, I would pray. I would pray and ask the Lord for guidance. That's what presidents have done throughout history. George Washington did. Abraham Lincoln did.

MR. GREGORY: But you said that ... God called me to run for Congress.... There's a difference between God as a sense of comfort and safe harbor and inspiration, and God telling you to take a particular action.

REP. BACHMANN: All I can tell you is what my experience has been. I'm extremely grateful to, to have a faith in God. I, I see that God has so blessed this country.... And I think that it's important for us to seek his guidance and to pray and to listen to his voice.

MR. GREGORY: Would you appoint an openly atheist person to be a member of your administration, your Cabinet or even as a judge to a court?

REP. BACHMANN: Well, my criteria, would be first of all, "How do you view the Constitution?" If you uphold the Constitution, if you're competent, and if you're--if you, if you share my views, then you can get appointed. That's my litmus test....

MR. GREGORY: OK. I want to also ask you about your interpretation of the Bible and your feelings about gays and lesbians.... 

REP. BACHMANN: Well, I am running for the presidency of the United States. I'm not running to be anyone's judge.... I believe that marriage is between a man and a woman. And that's what I stand for. But I ascribe honor and dignity to every person no matter what their background. They have honor and they have dignity....

MR. GREGORY: Would you appoint a gay, an openly gay person, to your administration, to your Cabinet, or name them as a judge?
REP. BACHMANN: My criteria would be the same for that... where do you stand on the Constitution, are you competent, and do you share my views. That's my criteria....

MR. GREGORY: One last one on this. Can a gay couple ... who adopt children in your mind be considered a family?

REP. BACHMANN: When it comes to marriage and family, my opinion is that marriage is between a man and a woman. And I think that's, that's been my view, and I think that's important.... You know, all of these kind of questions really aren't about what people are concerned about right now.... 

Washington State Denies Permit For Baptism Ceremony At State Capitol Park

In Olympia, Washington, Heritage Park is a 24-acre state-owned park next to the state capitol campus.  The state will issue permits for events to be held at the park.  Today's Bellingham (WA) Herald reports that the state's Department of General Administration has given Reality Church of Olympia a permit for a barbecue and picnic to be held today, but has denied its request to conduct a baptism along with the event.  The Department, deciding an appeal of an initial denial, said that the state constitution bars the use of public property for religious worship. The church had argued that its free speech and free exercise rights were infringed by the denial.

Recent Prisoner Free Exercise Cases

In Creveling v. Johnson, 2011 U.S. Dist. LEXIS 86648 (D NJ, Aug. 4, 2011), a New Jersey federal district court held that plaintiff, who was involuntarily committed as a sexually violent predator, could move ahead with a free exercise claim. He claims he is entitled to weekly church services, bible study and confession, as well as rosaries every day, but has only been allowed to attend church once every two-three weeks.

In Rogers v. United States, 2011 U.S. Dist. LEXIS 83336 (WD PA, July 29, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 86921, June 17, 2011), and dismissed an inmate's complaint that he was denied Halal meat for the Eid-ul-Adha celebration in 2006. The court found defendants had qualified immunity and rejected plaintiff's retaliation claim. It also rejected a retaliation claim regarding prayer oil pricing.

In Ellis v. United States, 2011 U.S. Dist. LEXIS 83833 (WD PA, Aug. 1, 2011), a Pennsylvania federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 86927, June 17, 2011) and permitted a former Sunni Muslim inmate to move ahead with his retaliation claim against certain defendants in which he claimed that his name was wrongfully omitted from call out lists for the 2006 Eid celebration and the Jumu'ah prayer services during 3 months. Various other claims, including one relating to Halal meat for the Eid celebration, were dismissed.

In Sykes v. Williams, 2011 U.S. Dist. LEXIS 87835 (D SC, Aug. 8, 2011), a South Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87777, July 13, 2011) and dismissed a Muslim inmate's claims that his religious rights were infringed when he was served porkwhile in detention.

In Gailbreath v. Covert, 2011 U.S. Dist. LEXIS 88095 (WD PA, July 20, 2011), a Pennsylvania federal magistrate judge recommended dismissal of a Muslim inmate's claims that he was prevented from properly practicing his faith when he was denied a vegetarian diet.

In Mitchell v. Dauphin County Commissioners, 2011 U.S. Dist. LEXIS 87901 (MD PA, Aug. 9, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 87903, July 18, 2011) and dismissed an inmate's free exercise claims without prejudice because plaintiff had failed to exhaust his administrative remedies. In the suit, plaintiff challenged the prison's policy prohibiting inmates from officially changing religions after being confined more than ten days, the prison's inadequate supply of common Mormon scriptures, and the prison chaplain's distribution of reading materials that promoted Christianity and allegedly defamed other religions.

In Lewis v. Skolnik, 2011 U.S. Dist. LEXIS 88950 (D NV, Aug. 10, 2011), a Nevada federal district court  permitted an inmate who is an African-American Hebrew Israelite to move ahead with his challenge to a prison policy that limits kosher meals to inmates who can prove through a recognized, outside organization that they are Orthodox or Conservative Jews. He alleged that the policy violated his free exercise and RLUIPA rights and that its implementation was discriminatory against African Americans.

In Sumpter-Bey v. Weatherford, 2011 U.S. Dist. LEXIS 88647 (MD TN, Aug. 9, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that a Seventh Day Adventist representative was preaching in the day room in his pod. The magistrate also recommended dismissal of plaintiff's claim that officials threatened to retaliate by moving him to administrative segregation after he filed a second grievance about the preaching.

In Montague v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 88362 (MD TN, Aug. 8, 2011), a Tennessee federal magistrate judge recommended dismissing an inmate's complaint that prison officials will not allow Muslim prisoners to order outside food and to pool their money to celebrate Eid ul-Fitr and Eid Adha.

In Burgie v. Golden, 2011 U.S. Dist. LEXIS 88895 (ED AR, Aug. 9, 2011), an Arkansas federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 88603, July 14, 2011), and dismissed  an inmate's complaint under RLUIPA that authorities confiscated his copy of "The Complete Book of Voodoo" and forwarded it to the prison's Publication Review Committee.

In Countryman v. Nevada, 2011 U.S. Dist. LEXIS 88583 (D NV, Aug. 8, 2011), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 88357, June 27, 2011) and dismissed without prejudice, for failure to exhaust administrative remedies, an inmate's complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was precluded from attending church services while in protective segregation.