Draft Transitional Libyan Constitution Makes Islam the State Religion. But Protects Non-Muslims

The National Journal reported yesterday that even though Libya's Transitional National Council is not fully in control of the country, a draft constitution has appeared online. The Draft Constitutional Charter for the Transitional Stage includes this provision regarding religious rights:

Article (1) ...Islam is the Religion of the State and the principal source of legislation is Islamic Jurisprudence (Sharia).... The State shall guarantee for non-Moslems the freedom of practising religious rights and shall guarantee respect for their systems of personal status.

The document provides that one month after the country is liberated and the Transitional National Council moves to Tripoli, the Council is to appoint a Constitutional Authority which in turn is to draft a final constitution to be presented to the people for approval in a plebiscite.

Illinois Law Gives Secretary of State Option of Issuing Non-Photo IDs For Amish

Last week, Illinois Gov. Pat Quinn signed H.B. 1484 (full text) which gives the Secretary of State the authority to provide by rule for the issuance of state identification cards without photographs for applicants (such as the Amish) who have a bona fide religious objection to being photographed or displaying their photos. According to the Chicago Tribune, Secretary of State Jesse White has doubts about the usefulness of an ID card that has no photo on it.  State Rep. Adam Brown wants the state police to develop a non-public data base that could be used by authorities to identify those who are issued IDs without photos, possibly using fingerprints instead of photos.

British Muslim Students Want Sharia-Compliant Student Loans

In Britain, the Federation of Student Islamic Societies is pressing the British government to create a new student loan system that is consistent with Sharia law.  According to yesterday's London Mail, until now students have only been required to pay interest equal to the rate of inflation-- an arrangement that apparently Muslim students found acceptable.  However changes that take effect next year will result in students paying higher rates of interest on the loans they take out to pay tuition. Rates will depend on their income after they graduate.  Some Muslim students say they may not apply to university because of the change.  The government's Department of Business, Innovation and Skills is discussing an arrangement for Sharia compliant loans that would be structured to "rent" education to students. However that kind of arrangement may not be in place until the 2013-14 academic year.

South Sudan Leaders Urge No Politicizing of Religion

The new nation of South Sudan-- whose population largely holds either Christian or traditional African beliefs-- has a secular constitution.  Today's Sudan Tribune reports that South Sudan's President Salva Kiir, a Roman Catholic, speaking to a Ramadan break-the-fast at the Presidential Guest House on Saturday, urged clerics to help the government solve problems facing the new nation, but to avoid politicizing religion or practicing religious corruption. He said his Sudan People's Liberation Party Movement supports religious freedom. Atahir Bior, head of the South Sudan Muslim Council, agreed, saying: "As religious leaders we should only be preaching about love and peace. We should not mix politics with religion." South Sudan broke from Khartoum in part because of Sudan's insistence on applying Sharia law in all of the country.

Defamation Action By Muslim Chaplain Against Newspaper Dismissed As Nonactionable "Opinion"

In Rashada v. New York Post, (NY Co. Sup. Ct., Aug 11, 2011), a New York trial court dismissed a defamation action (full text of 1/20/2011 complaint) brought by a female teacher at a mosque in Newburgh, New York who is also a chaplain in the New York prison system.  Plaintiff, Melody Rashada, sued the New York Post and Patrick Dunleavy over an article by Dunleavy published in the Post in Sept. 2010 titled Converts to Terror: The Prison Chaplain Problem.  The article, focusing on four defendants who were on trial on terrorism related charges, asked how the defendants were radicalized to the point that they would consider bombing synagogues in the Bronx and shooting down an aircraft with missiles.  Dunleavy's column said said:

What stands out is the prison connection. All four defendants were former inmates. More important, all three imams at the mosque in Newburgh that the defendants attended after being released from prison had a connection with the prison system. Imams Salahuddin Muhammad, Hamin Rashada and Melody Rashada worked for the Department of Correctional Services. All had been hired by Warith Deen Umar -- who for years headed ministerial services for the New York state prison system.

Rashada argued that this language, together with the title of the column, was defamatory because it suggested that she and the other two imams engage in the radicalization of prison inmates. The court conluded, however:

In the context of a defamation action, “expressions of opinion, as opposed to assertions of fact, are deemed privileged and no matter how offensive, cannot be the subject of an action for defamation.”...

In this case, both the context of the article itself and its broader social context indicate that it should be treated as non-actionable opinion. The article was printed under the multicolored and bolded heading “POST OPINION,” which alerted all readers that the article they were about to read was the opinion of Dunleavy....  Moreover, the broader social context of the article - the radicalization of prison inmates, leading them to engage in terrorist activity - is a topic which is intended to create much discussion and debate, and a topic on which a verifiable conclusion is neither expected nor delivered.

Recent Articles of Interest

From SSRN:

• Benjamin S. Walton, The Authoritativeness and Usefulness of the Principles of God's Old Covenant Law for the New Covenant Church and State, (Liberty University Law Review, Vol. 5, p. 419, 2011).
• Steven Douglas Smith, The Plight of the Secular Paradigm, (San Diego Legal Studies Paper No. 11-062, Aug. 17, 2011).
• Steven Douglas Smith, Freedom of Religion or Freedom of the Church?, San Diego Legal Studies Paper No. 11-061 (Aug. 17, 2011).
• Fernando R. Tesón, The Morality of Targeted Killing, (Using Targeted Killing to Fight the War on Terror, Andrew Altman, Claire Finklestein, and Jens Ohlin, eds., Oxford University Press, 2011).
• Steven Douglas Smith, The Paralyzing Paradox of Religious Neutrality, (San Diego Legal Studies Paper No. 11-060, Aug. 17, 2011).
• Jean-François Gaudreault-DesBiens, Religion, Expression and Freedom: Offense as a Weak Reason for Legal Regulation, (Cahiers de Recherche sur les Droits Fondamentaux, No. 8, pp. 53-66, 2010).

From bePress:

• Michele R. Pistone, Asylum Rights and Wrongs: What the Proposed Refugee Protection Act Will Do and What More Will Need to Be Done, (Villanova University School of Law Working Paper Series. Working Paper 159, Feb. 2011).

From SmartCILP:

• David A. Carrillo and Shane G. Smith, California Constitutional Law: The Religion Clauses, 45 University of San Francisco Law Review 689-777 (2011).
• Rev. John L. McCausland, Finding a Footing: A Theological Perspective on Law and the Work of Joseph Vining, 55 Villanova Law Review 1107-1120 (2010).
• Steven D. Smith, Persons All the Way Up, 55 Villanova Law Review 1177-1190 (2010).
• James Boyd White, The Creation of Authority in a Sermon by St. Augustine, 55 Villanova Law Review 1129-1142 (2010).

Washington State Permits For Religious Activities On State Property Surveyed

In the wake of a widely-publicized denial last week by the Washington state Department of General Administration for a church to conduct a baptism ceremony in the state-owned Heritage Park (see prior posting), AP has examined the record of past permit approvals and denials. It found that prayer, church picnics and advertising for fundraisers by houses of worship have been allowed on various state property, while baptisms and religious speeches have not. At issue is the manner in which the state interprets Art. I, Sec. 11 of the state constitution, which provides: "No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment." A Department of General Administration spokesman says that "prayer is considered more of a conversation instead of an instruction or exercise, so that's why it can be allowed while others are not." However he admits that the line can be "murky."

Recent Prisoner Free Exercise Cases

In Mitchell v. Skolnik, 2011 U.S. Dist. LEXIS 90126 (D NV, Aug. 11, 2011), a Nevada federal district court, while dismissing some claims for failure to exhaust administrative remedies, permitted an African-American Hebrew Israelite inmate to move ahead with claims that officials retaliated against him for filing grievances by failing to schedule Jewish services and confiscating religious head wear. He was also permitted to proceed with claims that his rights were violated when he was denied kosher meals because his faith had not been verified by an outside organization.

In Robinson v. Florida Parole Commission, 2011 U.S. Dist. LEXIS 90707 (MD FL, Aug. 15, 2011), a Florida federal district court upheld revocation of petitioner's parole for violating curfew. The court rejected petitioner's claim that the curfew violated his free exercise rights. He claimed he was conducting church business at the time he was found to be out after curfew.

In King v. Bell, 2011 U.S. Dist. LEXIS 90750 (ED TN, Aug. 11, 2011), a Tennessee federal district court denied a death-row inmate's numerous objections to his conviction, including a claim that his rights were violated when the court excused for cause a potential juror who said she could not impose the death penalty because of the Biblical admonition against killing.

In Ghana v. New Jersey State Parole Board, 2011 U.S. Dist. LEXIS 91121 (D NJ, Aug. 15, 2011), plaintiff claimed that officials infringed his right to practice his African Hebrew Israelites of Jerusalem faith. The court held that plaintiff's claim for injunctive relief is moot because he has been transferred to a different prison facility. He was given 14 days to file the pretrial memorandum as to damage claims that he had failed to file in the past. If not filed, the case will be dismissed.

In Penwell v. Holtgeertz, 2011 U.S. Dist. LEXIS 91303 (WD WA, Aug. 16, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 91302, July 15, 2011), and, in a case on remand from the 9th Circuit, denied defendant's motion for summary judgment.  It held that the factual record has been insufficiently developed as to whether restrictions on an inmate's attending group worship services and consulting with a chaplain while in Administrative Segregation violated the 1st Amendment or RLUIPA.

In Mathis v. Brazoria County Sheriff's Office, 2011 U.S. Dist. LEXIS 91827 (SD TX, Aug. 17, 2011), a Texas federal district court upheld a county jail's policy of refusing to provide kosher meals to plaintiff, and instead offering him only a pork-free diet.

In Argue v. Current MDOC Special Activities Director,  2011 U.S. Dist. LEXIS 92270 (WD MI, Aug. 17, 2011), a Michigan federal district court dismissed, partially on mootness grounds, RLUIPA claims by an inmate seeking a kosher diet and transfer to a facility where he could attend Jewish worship services. The court also held that RLUIPA claims do not lie against prison officials in their personal capacities.

Egyptian Police Arrest Man For Facebook Postings Insulting To Islam

According to AFP, reports from Egypt yesterday say Cairo police arrested a 23-year old man on charges that he posted comments on Facebook that were insulting to the Prophet Muhammad, the Qur'an, Islam and Muslims.  The man, who could be charged under a law that prohibits "insulting religion," was identified only as Ayman Y.M.

9th Circuit: Teacher Who Allegedly Insulted Religion Has Qualified Immunity From Damages

The 9th Circuit yesterday affirmed a district court's dismissal of an action that had been brought by a former California high school student against his history teacher. (See prior posting.)  Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. In C.F. v. Capistrano Unified School District, the 9th Circuit held that claims for declaratory relief were moot since plaintiff had graduated and was no longer in the high school. Moving to plaintiff's claim for nominal damages, the 9th Circuit held:

Mindful that there has never been any prior reported case holding that a teacher violated the Constitution under comparable circumstances, we affirm the district court’s conclusion that the teacher is entitled to qualified immunity. Because it is readily apparent that the law was not clearly established at the time of the events in question, and because we may resolve the appeal on that basis alone, we decline to pass upon the constitutionality of the teacher’s challenged statements.

In discussing whether a rule of law had been clearly established, the court commented:

In broaching controversial issues like religion, teachers must be sensitive to students’ personal beliefs and take care not to abuse their positions of authority....But teachers must also be given leeway to challenge students to foster critical thinking skills and develop their analytical abilities. This balance is hard to achieve, and we must be careful not to curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the pedagogical methods they believe are most effective.

The Christian Science Monitor reports on the 9th Circuit's decision.

Profile of Jon Huntsman Includes Insights Into His Religious Views

This month's Vogue Magazine carries an interesting lengthy profile of Republican Presidential hopeful Jon Huntsman. Here is an excerpt that deals with the Huntsman family's religious beliefs:

Mary Anne [Huntsman's 26-year old daughter], in jogging shorts, is headed out to pick up lunch. She falls into the conversation I am having with her mother about the family’s approach to religion. Mary Kaye [Huntsman's wife] has been telling me that both Episcopalianism, the denomination in which she was raised, and her husband’s Mormon heritage are important to them. “I draw from both,” Mary Kaye says. “I think my children have drawn from both. We are a family that combines two, and it works for us.”

I ask her daughter Mary Anne how she might identify her religion on a census form. “Mormon and Christian,” she says. “Every person is different in the way they feel spiritually.” Her mother adds that spirituality, which the family strongly feels, is more important than the tenets of a particular faith.

People tend to see Mormonism as a binary, you-are-or-you-aren’t question, but Jon Huntsman is something more like a Reform Jew, who honors the spirit rather than the letter of his faith. He describes his family on his father’s side as “saloon keepers and rabble rousers,” and his mother’s side as “ministers and proselytizers.” The Huntsman side ran a hotel in Fillmore, Utah’s first capital, where they arrived with the wagon trains in the 1850s. They were mostly what Utahans call “Jack Mormons”—people with positive feelings about the Latter-Day Saints church who don’t follow all of its strictures. “We blend a couple of different cultures in this family,” he says.

Polish Court Clears Death Metal Singer On Offending Religious Feelings Charges

According to yesterday's London Guardian, a court in Poland has cleared "death metal" singer Adam Darski (known as Nergal) of charges of offending religious feeling. In a 2007 concert in Poland, Darski tore up a Bible, threw the pages to the audience and asked them to burn them.  He also called the Bible a deceitful book and the Church a criminal sect.  The judge concluded that Darski's actions were "a form of art" consistent with the style of his band.

Vatican Posts Some Files of Accused Priest Online In Advance of Producing Them In Discovery

A Portland, Oregon federal district court judge has ordered the Vatican to turn certain documents over to plaintiff's lawyers by today in a lawsuit in which a victim of priest sexual abuse is attempting to hold the Holy See vicariously liable for the action of a now deceased priest.  Various other theories for holding the Vatican liable for the abuse by Rev. Andrew Ronan were dismissed. (See prior posting.)  USA Today reports that in a pre-emptive move on Wednesday, the Vatican posted online (full text) some of the internal files on Ronan.  In posting the document, the Vatican's lawyer said:

The federal courts have dismissed most of the Doe lawsuit. Today, to assist the Oregon federal district court in resolving the sole remaining jurisdictional issue in the case, the Holy See is releasing all known documents relating to Ronan held by the Roman Curia.

Like other documents previously produced by the Servite Order and the Portland Archdiocese, these newly-released documents show that the plaintiff’s lawyers’ long-standing accusations against the Holy See are false. The Holy See was not involved in Ronan’s transfers, including the transfer to Portland, and had no prior knowledge that Ronan posed a danger to minors. Instead, the documents confirm that the Servite Order first informed the Holy See of Ronan’s misconduct when Ronan petitioned for laicization in February 1966 – after the plaintiff’s abuse – and that the Holy See granted the petition for laicization just weeks later.

The plaintiff’s lawyers never had support for their calumnious accusations against the Holy See. They have nonetheless chosen to misuse the legal system as a vehicle to pursue a broader agenda – a decision that has misled the public and wasted considerable resources.

Notwithstanding the plaintiff’s lawyers’ regrettable conduct, it is important to remember that any abuse suffered by this plaintiff, or any other victim of sexual abuse, is deplorable.

Court Says Illinois May Refuse To Renew Adoption and Foster Care Contracts With Catholic Charities

Yesterday, in Catholic Charities of the Diocese of Springfield v. State of Illinois, (IL Cir. Ct., Aug. 18, 2011), an Illinois trial court rejected attempts by Catholic Charities organizations in three cities to prevent the state of Illinois from refusing to renew their contracts to provide foster care and adoption services for the state. The state took the step because Catholic Charities will not serve unmarried cohabiting couples (including those in same-sex civil unions). (See prior posting.)  The court held that even though Catholic Charities have provided foster care and adoption services to Illinois families for 40 years under successive one-year contracts, the organizations have no legally recognized protected property interest in the renewal of their contracts. Chicago Tribune reports on the decision.

Britain Faced With Issues of Caste Discrimination

Some 5% of Britain's population are originally from the Indian subcontinent.  Apparently this has led to the importation into Britain of problems of caste discrimination. The London Mail reported yesterday on a case pending before an employment tribunal in which a couple-- from different castes-- claim they were forced from their jobs in a British law firm because of their marriage. Amardeep Begraj, a solicitor, a Sikh from the Punjab region, belongs to the Jat caste.  She met her husband, Vijay-- a  low-caste Dalit-- at the law firm where he worked as the practice manager.  They were warned by a senior colleague not to marry because of their caste differences.  Amardeep claims that her workload was increased and her secretarial support reduced as punishment after she was married, and that she was paid less than colleagues.  After Vijay was fired, Amardeep resigned from the firm. The employment tribunal is considering whether this constitutes racial or religious discrimination. Meanwhile, the government is considering whether to add caste to the equality law that now protects against discrimination on the basis of race, gender, religion and sexual orientation.

Perry Says Texas Schools Teach Creationism

The Texas Tribune reported yesterday on answers to questions about evolution given by Texas Gov. Rick Perry during his New Hampshire campaign stop. Perry, now a candidate for the Republican presidential nomination, was asked about the topic by a young boy-- visibly prompted by his mother. Perry responded:

It’s a theory that’s out there. It’s got some gaps in it.  In Texas, we teach both creationism and evolution in our public schools. Because I figure you’re smart enough to figure out which one is right.

Creationism is not part of the formal science curriculum in Texas. However, in 2009, the State Board of Education voted to insert in the biology curriculum a call for students to "analyze and evaluate scientific explanations" on the complexity of cells as well as data on the "sudden appearance and stasis and the sequential groups in the fossil record." (See prior posting.)

Initiative Proponents Take First Steps Toward Legalizing Same-Sex Marriage In Maine

According to yesterday's Portland Press Herald, proponents of an initiative to legalize same-sex marriage in Maine can now begin gathering signatures on their initiative petitions.  This week, the Secretary of State's office approved the language that would appear on the Novembeer 2012 ballot if at least 57,277 valid signatures are collected:

Do you favor a law allowing marriage licenses for same-sex couples that protects religious freedom by ensuring no religion or clergy be required to perform such a marriage in violation of their religious beliefs?

Proponents have until January to collect the required number of signatures.  If they are successful, the legislature will have an option to enact the legislation. If it does not, then the measure goes on the ballot.

Britain's Equality Commission Will Study "Reasonable Accommodation," But Not In European Court Submission

Last month, Britain's Equality and Human Rights Commission announced that it had petitioned to intervene in four religious discrimination cases being appealed to the European Court of Human Rights, all involving attempts by employees to obtain accommodation of their Christian religious practices or beliefs. The Commission suggested that it would urge the court to adopt a principle of reasonable accommodation. (See prior posting.) Now, however, the Commission has announced that while it has been granted permission to intervene, it will not used these cases as the vehicle to deal with the concept of reasonable accommodation.  Instead, according to a document posted on the Commission's website (full text Word.doc), it is seeking public input on the content of its submission to the Court, and will examine separately, without the time pressure of the few week deadline for its filing with the ECHR, "whether the concept of reasonable accommodation has any useful practical application in cases concerning the manifestation of religion or belief." Yesterday's London Telegraph reports on these developments.

Claims Against Church Can Be Decided Using "Neutral Principles"

In Johnson v. Antioch United Holy Church, Inc., (NC App., Aug. 16, 2011), a North Carolina appeals court reversed a trial court's dismissal of lawsuit against a church.  The trial court had held that it was constitutionally precluded from deciding the case because the suit-- alleging violations of North Carolina's Non-Profit Corporation Act and alleging intentional infliction of emotional distress-- involved an internal church governance dispute. However the court of appeals concluded that the claims could be resolved under neutral principles of law. It said in part:

Plaintiffs allege Defendants have wasted corporate assets without proper authority under Antioch’s bylaws, caused church assets to inure to the benefit of private individuals, and failed to keep appropriate records of its activities. Plaintiffs further allege these acts have threatened the church’s tax-exempt status and exposed Plaintiffs to liability for federal and state income tax for funds received by Antioch. Whether Defendants’ actions were authorized by the bylaws of the church in no way implicates an impermissible analysis by the court based on religious doctrine or practice....

Plaintiffs’ second claim alleges common law intentional infliction of emotional distress against McGlenn when McGlenn delivered to Wallace a letter stating that Wallace was no longer a member of Antioch. While a court cannot determine whether a church’s grounds for membership are spiritually or doctrinally correct, ... applying a secular standard of law to secular tortious conduct by a church is not prohibited by the Constitution.

The appeals court also reversed the trial court's imposition of Rule 11 sanctions on plaintiff.

9th Circuit: Idaho Charter School Teachers Have No 1st Amendment Right To Use Religious Texts

The 9th Circuit Court of Appeals has affirmed the dismissal of a lawsuit brought by an Idaho state-funded charter school and two of its teachers challenging a policy adopted by the state's Public Charter School Commission. The Commission adopted the view of the state attorney general that the use of religious documents or texts in a public charter school classroom would violate Art. IX, Sec. 6 of the Idaho Constitution. That section prohibits the use of sectarian books or documents in public school classrooms. Teachers at the Academy wanted to use primary source documents-- including the Bible and the Koran-- in teaching their courses and argued that the ban violated their and their students' 1st and 14th Amendment rights. (See prior posting.)

In Nampa Classical Academy v. Goesling, (9th Cir., Aug. 15, 2011), the 9th Circuit held that the school, as a government entity, cannot bring an action against the state, but a teacher does have standing to pursue the claim. The court went on to hold, however, that:

The First Amendment’s speech clause does not, however, give Idaho charter school teachers, Idaho charter school students, or the parents of Idaho charter school students a right to have primary religious texts included as part of the school curriculum. Because Idaho charter schools are governmental entities, the curriculum presented in such a school is not the speech of teachers, parents, or students, but that of the Idaho government. The government’s own speech is exempt from scrutiny under the First Amendment’s speech clause.

Judge Rawlinson concurred only in the result.