Fashion Designer Gets Light Sentence From French Court For Anti-Semitic Rants

Reuters and The Guardian both report that British fashion designer John Galliano was found guilty today by a French court of making "public insults" based on origin, religion, race or ethnicity.  Charges against the former head Dior designer grew out of two anti-Semitic rants at a Paris bar, one last October and the other in February.  In the most recent incident, Galliano hurled 30 anti-Jewish insults at a French couple in the bar within a 45-minute period.  Galliano testified at his trial that he could not remember the incidents because of his addictions to alcohol, sleeping tablets and Valium.  The court sentenced Galliano to a suspended fine of 6000 Euros ($8421 US), over 5000 Euros in legal fees and nominal damages of 1 Euro to each of the civil parties in the case.  He could have been sentenced to as much as 6 months in prison. Justifying the light sentence, the court pointed to a lack of prior criminal convictions, Galliano's previous regard for respect and tolerance and the treatment for drug and alcohol addiction he obtained after his arrest. (See prior related posting.)

South Bend's Transfer of Land To Catholic High School Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Sept. 7, 2011), an Indiana federal district court held that the city's transfer to a Catholic high school of land the city purchased with $1.2 million of economic development funds violates the Establishment Clause. St. Joseph's High School planned to build a football stadium and track on the property, which was adjacent to its new school building. In exchange for the land,the school agreed to permit the South Bend community to use the stadium, track and other portions of its campus for ten years, on specified terms.  In finding that the transfer would amount to an unconstitutional government endorsement of religion, the court said:

The City’s actual intent is likely to endorse the high school’s construction project, not the high school itself or the religion with which the high school is affiliated. As already discussed, though, the endorsement test looks to the perception of the well-informed observer, not the governmental actor. Furthermore, since the development project as a whole appears to not be contingent at all on the donation, the action will appear to such an observer as more of an endorsement to aid a religious school after the fact than an enticement to bring about redevelopment.

AP reports on the decision. (See prior related posting.)

Court Hears Contempt Charges Against Rabbi Who Refuses To Testify Before Grand Jury

The Los Angeles Times reports that a hearing was held in federal district court in Los Angeles yesterday at which prosecutors asked the court to hold 64-year old Rabbi Moshe Zigelman in contempt for refusing to testify before a grand jury in a tax evasion case involving his Hasidic Spinka sect.  The case involves charges that the sect helped wealthy donors claim fraudulent tax deductions by soliciting charitable contributions and then secretly funneling 80% to 95% of the contribution back to the donors. Zigelman is invoking the religious doctrine of mesira, which prevents him from informing on a fellow-Jew to civil authorities. In 2008, Zigelman plead guilty to participating in the tax scheme, but on similar grounds refused to cooperate with authorities or testify at trial. He was sentenced to two years in prison. (See prior posting.)  Zigelman's attorney yesterday argued that holding his client in contempt would be futile because he will not change his mind and testify merely because he is jailed.

New York Rejects Church As Polling Place After Orthodox Jewish Objection

According to a JTA report this week, New York City election officials have changed their mind about permanently moving the polling location for New York's 73rd and 74th election districts from a public school to St. Agatha's Catholic Church in Brooklyn. Officials have been concerned that the public school site is too small. The decision to reject St. Agatha's came after Assemblyman Dov Hikind, an Orthodox Jew, intervened, complaining that many Orthodox Jews would not vote at the church that featured large crosses inside and outside. Officials are looking for a new site. Meanwhile, apparently voting in an upcoming primary for Civil Court Judge will still be held at St. Agatha's, but individuals may instead vote at the Brooklyn Board of Elections by checking "Religious Scruples" on their ballot application. [Thanks to Joel Alan Katz (Relig. & State In Israel) for the lead.]

Oklahoma School Districts Sue To Challenge Voucher Program

Yesterday's Tulsa World reports that two Oklahoma school districts have filed suit in state court to challenge the constitutionality of Oklahoma's Lindsey Nicole Henry Scholarships for Students with Disabilities Act, as amended. The law provides funds for parents to send special needs children to private schools.  The school districts claim that the law violates the provisions of the Oklahoma constitution, including Art. II. Sec. 5 that bars the use of public funds to aid sectarian institutions.  The districts named as defendants parents who had previously sued the districts in federal court for refusing to provide the scholarships. (See prior posting.) Subsequently amendments to state law transferred administration of the voucher program to the State Department of Education.

New Report Surveys American Attitudes On Religious Diversity

The Brookings Institution and the Public Religion Research Institute yesterday released a new report titled What It Means to be an American: Attitudes in an Increasingly Diverse America Ten Years after 9/11. Much of the 41-page report focuses on mixed attitudes of Americans toward Muslims. Here is an excerpt:

Americans strongly affirm the principles of religious freedom, religious tolerance, and separation of church and state. Nearly 9-in-10 (88 percent) Americans agree that America was founded on the idea of religious freedom for everyone, including religious groups that are unpopular. Ninety-five percent of Americans agree that all religious books should be treated with respect even if we don’t share the religious beliefs of those who use them. Nearly two-thirds (66 percent) of Americans agree that we must maintain a strict separation of church and state.

As a number of findings below demonstrate, however, Americans do not always apply these principles evenly or consistently....

... More than 8-in-10 Americans ... report holding favorable views of Catholics (83 percent) and Jews (84 percent).... Mormons are viewed favorably by two-thirds (67 percent) of the public, and a majority of the public also reports holding a favorable view of American Muslims (58 percent). Atheists are viewed least positively of any religious or ethnic group with less than half (45 percent) of the public reporting a favorable view....

Americans are evenly divided over whether the values of Islam are at odds with American values and way of life.... There are large differences of opinion by political and religious affiliation, age, and trusted media source.....By a margin of 2-to-1, the general public rejects the notion that American Muslims ultimately want to establish Shari’a law as the law of the land in the U.S. (61 percent disagree, 30 percent agree)....

Americans employ a double standard when evaluating violence committed by self-identified Christians and Muslims. Americans are much more willing to say that Muslims who commit violence in the name of Islam are really Muslims than they are to say that Christians who commit violence in the name of Christianity are really Christians.

Another section of the report deals with attitudes toward immigrants and immigration.

Afghan Army Works To Bolster Its Muslim Image

Yesterday's Washington Post reports that in Afghanistan, the battle between the Taliban and Afghan government forces has become in part a battle over which group are true Muslims. The Taliban has undermined popular support for the Army by telling residents that Army members are "fake Muslims." So the government has developed a strategy aimed at strengthening the Islamic credentials of the armed forces. Billboards with a verse from the Qur'an and added attempts to assure that Islamic law is observed in the Army are part of the effort.  So is the building of mosques on Army bases. American funded radio stations encourage military personnel to discuss religious issues on the air.

Religion Clauses of South Sudan's Transitional Constitution Revealed

While the full text of South Sudan's Transitional Constitution has apparently not yet been publicly released, Minister of Justice, John Luk Jok, on Monday told employees of the Ministry of Justice that the Constitution separates religion from politics.  According to the Sudan Tribune, the Justice Minister said that Article 8 (1) of the Transitional Constitution states clearly that religion and state are be separate, while paragraph (2) provides that all religions are to be treated equally.  Article 23 of the Transitional Constitution protects the right to worship or assemble in connection with any religion or belief and the right to establish and maintain places of worship. It goes on to provide that the government will extend any assistance to religions that request it, without prejudice.

En Banc Review Sought In Ban On Charter School's Use of Religious Texts

AP reported yesterday that a petition for en banc review has been filed with the 9th Circuit in Nampa Classical Academy v. Goesling. In the case, a 3-judge panel of the 9th Circuit held that Idaho did not violate the 1st Amendment when it barred use of religious texts or documents in classrooms of a public charter school. The panel concluded that the curriculum of a public charter school is speech of the government, and thus not subject to 1st Amendment protection from government infringement. (See prior posting.)

Virginia County Settles With Justice Department On Claimed RLUIPA Violations

Henrico County, Virgina in 2008 refused to rezone 5.2 acres of undeveloped land that had been purchased by a Muslim group seeking to construct a mosque and community center. The group challenged the rezoning refusal by filing a suit in state court.  Subsequently, the U.S. Department of Justice also began to investigate the matter, and yesterday the Justice Department announced that it had reached an agreement with the county on a consent decree.  A complaint (full text) charging violations of both the anti-discrimination and the undue burden provisions of RLUIPA was filed by the government yesterday in a Virginia federal district court, along with a proposed consent order (full text).  The complaint charges that the rezoning refusal was motivated by hostility to the mosque and its members on the basis of religion. Under the consent order, if approved by the court, the county will permit the mosque to be constructed, will agree to comply with RLUIPA in the future, will provide future religious use applicants notice of their rights under RLUIPA, will provide training on RLUIPA to various county officials, and will implement various reporting, record keeping and monitoring requirements. [Thanks to Eric Treene for the lead.]

Presidential Candidates Talk of Free Exercise, Religious Beliefs At Tea Party Forum

Five Republican candidates participated in a Presidential Forum in South Carolina yesterday hosted by Tea Party-supported Sen. Jim DeMint and televised by CNN. (Full transcript.) Issues of free exercise and personal faith arose several times during the extensive discussions.

One of the questioners, Princeton University Prof. Robert George, asked both Michelle Bachmann and Herman Cain whether the federal government should act to prevent Illinois from refusing to contract with religiously affiliated foster care and adoption agencies that do not place children with same sex couples. Much of Illinois funding for these services comes from the federal government. Here is Bachmann's response:

 BACHMANN: I believe in equal protection under the law. And this is clearly a situation where we have seen a disadvantage to children who are about to be placed either in foster care or in adoptive care. And, again, I believe that is one more example why the rulings of activist judges acting outside the original intent of the Constitution are so very dangerous to the foundation of the country....

GEORGE: But if a state legislature refuses to make funding available on equal terms to those providers who, as a matter of conscience, will not place children in same-sex homes, should federal legislation come in to protect the freedom of conscience of those religious providers, even if the discrimination comes not from the courts, but from the legislature?

 BACHMANN: Well, yes, I do, because I believe that that is a right that is guaranteed to every American under our Constitution and Bill of Rights.....

Here is Cain's answer:

CAIN: ... I believe in the first amendment. So the federal government should not be subsidizing any situation where it's discriminatory against any legitimate religion in this country.....

Both Newt Gingrich and Mitt Romney spoke about asking for God's guidance in decision making.

GINGRICH: ... I think anyone who would not face the most serious questions by asking God's guidance and God's grace and asking God's help would be a person who totally misunderstood the nature of life and who would be dangerous holding a major office.

So, I think -- I would hope anyone would answer you by saying, in a truly big decision, or, frankly, small decisions -- I find myself very often praying just before I speak or just before -- there are -- having -- seeking God's guidance strikes me as being the heart of whether or not you can survive in a world of danger and in a world of temptation and in a world where evil always lurks.....

And here is part of the exchange with Romney:

SENATOR JIM DEMINT...: In this heavy load that the presidential might well be, the time comes when the very difficult decisions are made when there are life and death decisions that direct the destiny of the United States, and you've taken all the information in from each side of the argument and you have to finally say to all the advisers, now I'm alone with my decision, can you tell us how you would do that?

... ROMNEY: Well, I'm a highly analytical guy. So I look at all the data and analysis and summarize it and look at it with my eyes before me. I talk to my wife and get her feelings and sense of confidence and comfort. I go on my knees.

I'm a person of faith. I look for inspiration. I remember seeing President George W. Bush and he showed me a room in the White House where he said he looked at the paintings of other president who made tough decisions.

And then with all that God has endowed with your mind and values, you make that decision.....

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.