Senator Objects To Army's Suspension of "Just War" Instruction

As previously reported, after complaints surfaced in July, the Air Force removed from its training module for missile officers a mandatory session led by chaplains discussing St. Augustine's Just War Theory. Now Texas Sen. John Cornyn has written the Secretary of the Air Force (full text of letter) expressing concern that the instruction has been suspended.  He wrote in part:

Our military services, like our nation, are comprised of people representing all faiths.

However, that fact does not preclude military chaplains from teaching a course on just war theory – a theory that has been a part of moral philosophy and the law of war for centuries – merely because it has historically been predicated on religious texts.

Moreover, suspending a course like this because of references to religious texts misinterprets the First Amendment. Although our Founding Fathers rightly included language in the Constitution that precludes the Federal government from establishing an official religion, this language does not, as some have argued, protect them from exposure to religious references. 

Newspaper Is Critical of Amounts Paid To Head of Christian Non-Profit Group

Sunday's Tennessean carries an investigative story profiling Jay Sekulow, head of the American Center for Law and Justice.  The piece focuses on large amounts paid to Sekulow and his family from ACLJ and a second charity also headed by Sekulow.  Here is an excerpt:

Sekulow, a celebrity among conservative Christians, now sits as the principal officer of two closely related multimillion-dollar legal charities: Christian Advocates Serving Evangelism, which he founded in San Francisco, and the better-known American Center for Law and Justice, founded by Christian broadcaster Pat Robertson and based in Virginia Beach....

Along with its spiritual benefits, Sekulow’s new calling has come with significant financial benefits.

Since 1998, the two charities have paid out more than $33 million to members of Sekulow’s family and businesses they own or co-own, according to the charities’ federal tax returns, known as form 990s.

One of the charities is controlled by the Sekulow family — tax documents show that all four of CASE’s board members are Sekulows and another is an officer — an arrangement criticized by a nonprofit watchdog group.

Orthodox Church In Abkhazia Fragments

Yesterday's Moscow Times reports on the growing fragmentation in the Orthodox Church in Abkhazia, the break away republic that is trying to obtain international recognition as a nation separate from the nation of Georgia. In 2009, the Sukhumi-Abkhazian Eparch split from the Georgian Orthodox Church and declared itself  to be the Abkhazian Orthodox Church, a continuation of  the Catholicate of Abkhazia which was disbanded in 1795. (Background). However on May 15 this year, a group of clergy and laymen declared a competing new Abkhaz church that would use the Abkhaz language in liturgy and would be independent of the Moscow patriarchate. They want the ecumenical patriarch in Istanbul to oversee the new Abkhaz church.

Saudi Scholars Threaten To Sue Astronomer Who Questioned Date For End of Ramadan

Arab News reported Saturday that in Saudi Arabia, a number of conservative scholars have threatened to sue scientist-astronomer Khaled Al-Zaaq for questioning the testimony of those who say they sighted the new moon ending Ramadan on August 29.  The Hilal (crescent moon) panel accepted their testimony and declared the end of the Ramadan fast on that day.  Al-Zaaq claims that the moon could not have been sighted on the 29th because it had eclipsed before sunset. The Grand Mufti in his Friday sermon in Riyadh said that those who question the witnesses' veracity were "motivated and deviated people with foul mouths."

Recent Articles of Interest

From SSRN:

• Zachary R. Calo, Islamic Headscarves, Religious Pluralism, and Secular Human Rights, (International Consortium for Law and Religion Studies Conference, Santiago, Chile, September 2011).
• Zachary R. Calo, Human Dignity and Health Law: Personhood in Recent Bioethical Debate, (Notre Dame Journal of Law, Ethics and Public Policy, Forthcoming).
• Robert J. Miller, The International Law of Colonialism: A Comparative Analysis, (August 30, 2011).
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, (Brigham Young University Education and Law Journal, pp. 547-569, 2011).
• Howard Kislowicz, Judging the Rules of Belonging, (U.B.C. Law Review, Vol. 44, No. 2, p. 287, 2011).
• Zachary R. Calo, Catholicism, Liberalism and Human Rights, (Journal of Christian Legal Thought, Forthcoming).
• Lorin C. Geitner, Westboro Baptist and the Limits of Religious Speech, (Orange County Lawyer, Forthcoming).
• Victor M. Muniz-Fraticelli, The Distinctiveness of Religious Liberty, (July 29, 2011).
• Douglas E. Abrams, Reason and Passion: Justice Jackson and the Second Flag Salute Case (Part I), (Precedent, Vol. 5, No. 3, pp. 22-26, Summer 2011).
• Steve Sanders, The Constitutional Right to (Keep Your) Same-sex Marriage: Why the Due Process Clause Protects Marriages that Cross State Lines, Even if Conflict of Laws Cannot, (August 24, 2011).

From SmartCILP and elsewhere:

• Vol. 26, No.2, Journal of Law and Religion has recently appeared.
• Sept./Oct. 2011 issue of Liberty: A Magazine of Religious Freedom has recently appeared.

Recent Prisoner Free Exercise Cases

In Burnett v. Jones, (10th Cir., Aug. 31, 2011), the 10th Circuit Court of Appeals rejected an inmate's claim that his free exercise rights were violated when the prison was in lock down during Hanukkah and Christmas, denying him the opportunity to gather with other members of his faith to celebrate those holidays.

In Phillips v. Roy, 2011 U.S. Dist. LEXIS 96615 (ND NY, Aug. 29, 2011), a New York federal district court permitted a Native American inmate to move ahead with his complaint that he was not permitted to participate in religious ceremonies. However it dismissed his complaint that a response to his request to order herbs was ignored for a substantial period of time and he was not permitted to purchase matches or a lighter so he could burn the herbs for smudging. The magistrate's recommendations in the case are at 2010 U.S. Dist. LEXIS 143651, Sept. 27, 2010.

In Lee v. Clarke, 2011 U.S. Dist. LEXIS 96757 (ED VA, Aug. 29, 2011), a Virginia federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's free exercise and RLUIPA claims objecting to a one-month cancellation of Juma prayers and restrictions on prayer during, and bringing a Qur'an to, in-pod recreation. Some claims were dismissed with prejudice, and other without prejudice.

In Venegas v. Swathout, 2011 U.S. Dist. LEXIS 96321 (ED CA, Aug. 26, 2011), a California federal magistrate dismissed, with leave to amend, an inmate's challenge to denial of parole.  He claimed that the Board of Parole Hearings required him to attend religiously based AA or NA programs. However the court concluded that it appears petitioner had some element of choice that would have allowed him to attend a non-religious substance abuse program.

In Treesh v. Bobb-Itt, 2011 U.S. Dist. LEXIS 97090 (SD OH, Aug. 29, 2011), an Ohio federal district court dismissed claims by a Native American inmate that his rights were violated when he was not permitted to wear headgear with feathers at all times, but only during Native American religious ceremonies. The court also dismissed plaintiff's claims regarding missing personal property, including items used in religious ceremonies.

In Lefler v. Allen Correctional Center, 2011 U.S. Dist. LEXIS 97186 (WD LA, Aug. 29, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 97305, July 18, 2011) and dismissed complaints by a Wiccan inmate that the coordinator of the prison's faith based program stopped him from sharing information about his pagan beliefs with others in the program.

In Harris v. Skolnik, 2011 U.S. Dist. LEXIS 97695 (D NV, Aug. 29, 2011), a Nevada federal magistrate judge permitted an inmate to move ahead with his claim that by denying him a kosher diet unless his Jewish faith was verified by the Aleph Institute, authorities violated his rights under the free exercise, establishment and equal protection clauses as well as his rights under RLUIPA. The court also permitted him to move ahead with a 1st Amendment retaliation claim.

In Ascencio v. Shane, 2011 U.S. Dist. LEXIS 98092 (ND OH, Aug. 31, 2011), an Ohio federal district court dismissed an inmate's free exercise objections to authorities' confiscating a Spanish language religious motivational message sent to him. Prison policy bars inmates who speak English from receiving correspondence written in foreign languages.

In Cotton v. Cate, 2011 U.S. Dist. LEXIS 98766 (ND CA, Aug. 30, 2010), a California federal district court denied defendants' motion for summary judgment in a suit by an inmate who is an adherent of the Shetaut Neter religion who was seeking a Kemetic (raw vegan-organic) diet. The court concluded that various factual questions remain in dispute.

In Gonzales v. Adams, 2011 U.S. Dist. LEXIS 97706 (WD OK, Aug. 31, 2011), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 98310, Aug. 9, 2011) and dismissed an inmate's complaint that his request to be furnished a Catholic Bible while he was in administrative segregation was denied.

Vatican Responds To Ireland's Criticism of Its Role In Failure To Report Clergy Abuse

Today's New York Times reports on a statement issued by the Vatican on Saturday responding to allegations leveled in July by the Irish government that the Vatican discouraged Irish bishops from reporting clergy sexual abuse of minors to police. (See prior posting.)  The Vatican's response (full text) to Ireland's Cloyne Report, and to follow-up statements by Ireland's Prime Minister and Parliament, says that the Cloyne Report misinterpreted, through a lack of context, a key letter from the Apostolic Nuncio which seemed to downplay the importance of a Vatican document on how to handle clergy abuse allegations.

Court Rejects Religious Use of Marijuana For Drug Dealer On Supervised Release

In United States v. Lafley, (9th Cir., Sept. 1, 2011), the U.S. 9th Circuit Court of Appeals held that a federal district court did not violate the Religious Freedom Restoration Act when it imposed as a condition of supervised release the requirement that a convicted methamphetamine dealer not possess or use controlled substances, including marijuana. Defendant, who had joined the Montana Cannabis Ministries, argued that he is entitled to an exemption from this standard term of supervised release. The court concluded, however, that the government has a compelling interest in preventing a convicted drug felon from using drugs during his supervised release, and that the terms imposed are the least restrictive means of advancing that interest. It rejected as imposing too burdensome a monitoring requirement on probation officers defendant's claim that he should be allowed religious, but not recreational, use of marijuana.

Indian Government Drops Support For Law On Registering Sikh Marriages

According to The Link, India's government announced to Parliament this week that it is dropping a proposal long advocated by Sikhs to provide for separate registration of Sikh marriages. Legislation enacted in 1909 recognizes the validity of Sikh marriages, but provides no means of registering them. Registration must be effected either under the Hindu Marriage Act or the Special Marriage Act. Earlier this week, according to the Times of India, a U.S.-based Sikh advocacy group wrote the UN Special Rapporteur on Freedom of Religion or Belief seeking United Nations intervention to pressure India to pass an act for registration of Sikh marriages.

University Investigates Christian Student Group's Removal of Openly Gay Member

Baptist Press reported yesterday that the University of North Carolina-- Chapel Hill has started a discrimination investigation against "Psalm 100," a small student Christian a cappella musical group.  The group voted earlier this week to remove from membership Will Thomason, an openly gay student. University rules allow student groups to "limit membership and participation in the organization to students who ... support the organization's goals and agree with its beliefs." However the rules preclude excluding a student from membership because of sexual orientation. Psalm 100 says it removed Thomason because of his disagreement with the group's constitution that is based on biblical standards, not because of Thomason's sexual orientation. Psalm 100's general director said its decision was made out of love for Thomason, and Thomason says he continues to love all the members of the group.

Title VII Claim By Muslim Firefighter Partly Dismissed

In Ali v. District of Columbia Government, (D DC, Aug. 31, 2011), the U.S. District Court for the District of Columbia dismissed a Title VII employment discrimination claim brought by Tarick Ali, a Muslim firefighter/ emergency medical technician who had been employed by the D.C. Fire and Emergency Medical Services Department. However, the court permitted plaintiff (now Ali's personal representative because Ali had died) to proceed on a claim of retaliation.  Ali's problems began when he was late for a drill because he and a fellow Muslim firefighter had been praying, and his supervisor suggested that Ali may need to make a choice between his job and his religion.  However, the court concluded that because Ali suffered nothing more that criticism and threats, there had not been any adverse action against him. The court added, though, that while threats are not adverse action for purposes of a religious discrimination claim, they may be for a retaliation claim. Here Ali claimed that his superior threatened to fire Ali's co-worker, a fellow Muslim, if Ali pursued a discrimination complaint. Courthouse News Service reports on the decision.

Pastor Sentenced For Blocking Access While Proselytizing At Islamic Center

A state court trial judge in Wichita, Kansas has sentenced Wichita pastor Mark Holick after a jury last month convicted him on charges of loitering and disrupting a local business. The jury trial in the state district court came after an appeal from a Municipal Court conviction.  According to yesterday's Wichita Eagle, Holick, the pastor of Spirit One Christian Ministry, was arrested when he and a dozen followers went to Wichita's Islamic Center and attempted to hand out Bibles to Muslims arriving to celebrate Ramadan. Holick blocked access to the driveway at the Center and created a disturbance, marching in place when police ordered him to move to a public sidewalk. The court sentenced Holick to 12 months unsupervised probation, a fine of $300 and ordered him to stay at least 1000 fee away from the Islamic Center. During his sentencing hearing, Holic gave a 15 minute speech quoting Bible verses and invoking his 1st Amendment rights. Holick told the court: "I am not your enemy. Islam is. The Lord said there will be no other gods before me."

Perry Attempting To Win Support Of Religious Conservatives

The Los Angeles Times yesterday reported on Texas Gov. Rick Perry's efforts to win support of religious conservatives in his bid to become the Republican nominee for President. Last week end he participated in a two-day retreat with major evangelical leaders. Some 200 people attended the off-the-record meeting at  the ranch of San Antonio entrepreneur James Leininger, a major supporter of Perry.  Perry and his wife spent extended time with the Christian leaders, speaking candidly about his faith, including specifically about when he accepted Jesus as his savior. In response to a question, Perry said he would pick a pro-life running mate.

A Broad View of the Upcoming Supreme Court Term With A Law and Religion Perspective

The Supreme Court's new term begins Oct. 3.  Scotus Blog has a comprehensive listing (as well as extensive links to related documents) of all the cases which the Court has already agreed to review in the upcoming term. Of course the Court will grant cert. in more cases as the October term begins.  Here is a summary of cases the Court has already agreed to review which may be of particular interest to individuals concerned with religious liberty and church-state issues. One case clearly presents 1st Amendment religion issues. Several others may affect religious liberty claims, even though their facts do not directly present them.

Hosanna-Tabor Church v. EEOC is the clear religious liberty case.  At issue is whether the "ministerial exception" to federal employment discrimination laws applies to an ADA suit by a parochial school teacher who teaches mostly secular subjects.  For a somewhat different "take" on the case, readers may be interested in my recent article in Liberty magazine: Howard Friedman, An Issue of Church Autonomy: The Supreme Court Examines the Ministerial Exception Doctrine.

Minneci v. Pollard involves the question of when a federal court may imply a cause of action under the Constitution against an employee of a private company which contracts with the federal government to provide prison services. While not involved in the facts of this case, the outcome may impact the availability of free exercise claims against employees of private food service providers in prisons where inmates claim their religious dietary needs have not been met.

MBZ v. Clinton is of interest to many who follow religious liberty issues not because of the principles of law involved, but because it is a piece of the never-ending religio-political battle over the city of Jerusalem.  Congress passed a statute instructing the Secretary of State to permit U.S. citizens who were born in Jerusalem to list their birthplace on their passport and on their Consular Report of Birth Abroad, if they wished to do so, as "Israel."  This contradicts a State Department policy that instead calls for merely listing "Jerusalem" as the individual's birthplace. At issue is whether the Congressional statute infringes on the President's powers to recognized foreign governments, and whether the political question doctrine precludes courts from enforcing the statute.

Knox v. Service Employees International Union, Local 1000 involves the rights of state employees in states that permit state employee unions to charge an agency or service fee to non-union members. It is already established that unions may not collect from employees amounts that are to be used for political or ideological issues unrelated to collective bargaining. This may include union expenditures advocating issues to which state employees object on religious grounds. This case raises issues of the adequacy of notice given to state employees regarding fees assessed on them, as well as issues of whether expenditures to oppose anti-union ballot measures are related to collective bargaining.

Federal Communications Commission v. Fox Television Stations, Inc., involves the Federal Communications Commission's approach to enforcing a federal statute barring the broadcast of "indecent" language.  Many, of course, see religious, as well as constitutional, values at stake in this case. At issue is whether the approach taken by the FCC is unconstitutionally vague. The FCC decided that particular broadcasts involving expletives and nudity were indecent.

Britian's Charity Commission Issues New Guidance On Exceptions For Religious Charities

On Wednesday, Britain's Charity Commission announced the issuance of new, more detailed guidelines under the Equality Act 2010 clarifying when charities may restrict their benefits to persons on the basis of their religion, gender, age and various other protected characteristics.  The Guidance (full text) has special rules for charities that limit their benefits to members of a particular religion. A "religious or belief organization" can restrict membership, participation in their activities, the services they provide or use of their premises on the basis of a person's religion, belief or sexual orientation, if certain conditions are met.  This type of restriction may be imposed only to comply with the organization's doctrines, or to avoid conflict with the religious-based convictions of many of the organization's followers. However, these limitations may not be invoked by an organization that is wholly or mainly commercial.  Also, discrimination on the basis of sexual orientation is not permitted when an organization is providing a service on behalf of a public authority under contract with it. Yesterday's Guardian reported on the new Guidance document.

Court Removes Defrocked Episcopal Priest As Rector On Petition of Diocese

A Pennsylvania trial court last week held that conservative defrocked Episcopal priest David Moyer no longer has any right to serve as rector of Church of the Good Shepherd in Rosemont, Pennsylvania. The court similarly removed two vestry members who supported Moyer from their positions.  In In re The Church of the Good Shepherd Rosemont Pennsylvania Incorporated, (PA Com. Pl, Aug. 25, 2011), the court said:

On the sole question of whether or not the Diocese can ask this Court to force the respondents out of Good Shepherd, the answer is clear. Their eviction, literally and figuratively, is the will of the petitioning Standing Committee [the ecclesiastical authority of the Diocese] and Assisting Bishop.

Virtue Online has extensive background on the decision, which it calls "the final blow to the Anglo-Catholic rector [Moyer]," coming "after more than a decade of ecclesiastical infighting and lawsuits." Today's Philadelphia Inquirer also reported on the decision. (See prior related posting.) [Thanks to James Edward Maule via Religionlaw for the lead].

Court Orders No Town Board Saturday Discussion of Land Use Issue Impacting Jewish Group

In the town of Bethel, New York, a Satmar Hasidic group that was involved in a battle with the town in 2009 over construction of a synagogue is again at odds with town officials.  As reported by the Hudson Valley Times Herald Record in January, the Town Board voted in December, by a split vote, to extend the boundaries of the Kauneonga Lake Sewer District. This is the first step in plans by Kollel Averichim Torah Veyirah to tear down several old bungalows and build two multi-family housing units on a 5-acre parcel near their synagogue.  Some 87 residents filed a petition for a public referendum on the extension.  Subsequent developments are traced by the Narrowsburg, New York River Reporter yesterday. In May, a state court held that the referendum petition was filed after the required deadline.  Opponents then circulated a petition opposing the expansion and obtained some 200 signatures.  They proposed to present it to the Town Board at its August 27 meeting.  However, that meeting was scheduled for Saturday, which meant because of the Jewish Sabbath, Kollel members could not drive to the meeting, and if there, could not use microphones to present their views.  So the Kollel again went to court, and a state court judge issued an order prohibiting the Town Board from discussing the matter in any way at the Aug. 27 meeting. This, however, did not prevent one of the town's residents, during the public comment period, from reading the letter that was to accompany the petition.

At the board meeting, Councilperson Denise Frangipane did discuss the court order, complaining that the town did not choose to fight it.  She said: "We live in a secular society which respects all religions and the right of people to practice the religion of their choice freely. However, religious considerations do not overrule our civil legal structure."

Fights, Arrests At New York Amusement Park Over No-Hijabs On Rides

In Rye, New York, the Muslim-American Society planned an outing at Rye Playland amusement park on Tuesday night to celebrate Eid-al-Fitr, the end of Ramadan.  However, according to CNN, many of those attending did not know that the amusement park had a safety rule banning wearing of headgear on rides.  When a group of Muslim women were told they were not allowed on certain rides wearing their hijabs (headscarves), they began to argue with park employees. Some men came to the women's defense and a melee broke out. Before it was all over, police were called, 15 people were arrested, and two were charged with felony assault.

Indonesian Ministry Delays End of Ramadan By One Day After Observations of Moon

Ramadan came to an end Monday night, followed by the celebration of Eid-al-Fitr on Tuesday-- with one exception.  Voice of America reports that in Indonesia, the Ministry of religious Affairs announced that the Eid would not begin until Wednesday.  It concluded that the moon was still too low on the horizon on Monday night.  This surprised many who had planned for the Tuesday date. However, Indonesia's second-largest Islamic organization, Muhammadiyah, started Eid on Tuesday along with the rest of the Muslim world.

NY Court Enforces Forum Selection Clause In Suit Over Use of Vatican Library Images

In Magi XXI, Inc. v. Stato Della Citta Del Vaticano, 2011 U.S. Dist. LEXIS 94636 (ED NY, Aug. 24, 2011), a New York federal district court enforced identical forum selection clauses in seven sublicense agreements which gave plaintiff the right to use various images from the Vatican Library in producing and marketing candles, chocolate, confections, flowers, gift bags, stamps, wrapping paper, and fundraising materials. The clause required that any disagreements under the sublicense must "be resolved exclusively in the Sovereign State of Vatican City." Plaintiff's lawsuit, brought in New York, alleged fraud, negligence, breach of contract, unjust enrichment, and conversion, claiming defendants failed to provide access to artwork, manuscripts and other Vatican Library items. The court rejected a wide array of arguments against dismissing the case, including the contention that the Pope's role in the Vatican courts would prevent them from being a fair forum. AP reporting on the decision says plaintiff is likely to appeal.