Recent Articles of Interest

From SSRN:

• Nelson Tebbe, Witchcraft and the Constitution, (T.W. Bennett, eds, Traditional African Religions in South African Law p. 156, UTC Press, 2011).
• Mohammad Fadel, A Tragedy of Politics or an Apolitical Tragedy?, (Journal of the American Oriental Society, Vol. 131, No. 1, 2011).
• Kenneth Lasson, Hammerin’ Hank & the Golden Arm: Remembering Baseball’s Jewish Hall of Famers, (Baltimore Jewish Times, April 8, 2011).
• Tokufumi Joshua Noda, The Role of Economics in the Discourse on RLUIPA and Nondiscrimination in Religious Land Use, (Boston College Law Review, Vol.1, 2011).

Engage, Vol 12 No. 2:

• Robert F Wilson and Jana Singer, Same-Sex Marriage and Conscience Exemptions.
• Richard W. Garnett and Kurt T. Lash, The Establishment Clause.
• Gregory S. Baylor and Ronald Chen, Did the Supreme Court Properly Decide Christian Legal Society v. Martinez?
• William L. Saunders, European Court of Human Rights Finds No Right to Abortion Under European Human Rights Convention.

Rubashkin's Conviction, Sentence Upheld By 8th Circuit

In United States v. Rubashkin, (8th Cir., Sept. 16, 2011), the U.S. 8th Circuit Court of Appeals rejected a motion for a new trial and a challenge to the length of the sentence imposed on Sholom Rubashkin, the Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa. Rubashkin was convicted on financial fraud charges. (See prior related posting.)  Charges against Rubashkin alleging hiring of illegal aliens in his meat packing plant were ultimately dropped. The 8th Circuit rejected claims of bias toward Rubashkin, objections to scheduling of trial dates and to evidentiary rulings and certain jury instructions. It also concluded that the trial court was not obligated to adopt a downward departure from the Sentencing Guidelines based on Rubashkin's past charitable acts and family obligations. Friday's Des Moines Register reported on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Vinning-El v. Evans, (7th Cir., Sept. 16, 2011), the 7th Circuit dismissed a claim for supervisory liability against a rison warden on plaintiff's claim that as a Moorish Science adherent, he should be entitled to a vegan diet. The court remanded the question of whether the prison chaplain had qualified immunity in connection with the denial, holding that the issue depended on whether the chaplain's denial was based on a good faith finding of insincerity of plaintiff's religious belief, or was instead based on the conclusion that the Moorish Science religion does not make a vegan diet a tenet of its faith.

In Hopkins v. Apadaca, 2011 U.S. Dist. LEXIS 99145 (WD PA, Sept. 2, 2011),  a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 101806, Aug. 3, 2011) and dismissed a claim by an inmate, who for religious reasons was a vegetarian, who complained that he had high cholesterol but was kept on a high cholesterol diet that included peanut butter.

In Lewis v. Snyder, 2011 U.S. Dist. LEXIS 102520 (ND IL, Sept. 12, 2011), an Illinois federal district court rejected constitutional and statutory challenges by a Nazarite inmate to the requirement that he cut his hair rather than wear his hair in dreadlocks. The court also rejected complaints that his cut dreadlocks were not returned to him and that he could not participate in religious feasts because he had no religious designation on his identification card.

In Gaston v. Redmon, 2011 U.S. Dist. LEXIS 102462 (ED CA, Sept. 11, 2011), a California federal magistrate judge recommended dismissing an inmate's claim that his free exercise rights were violated when an officer refused to place a gold chain and medallion taken from him on a property form.

In Ciempa v. Jones, 2011 U.S. Dist. LEXIS 102580 (ND CA, Sept. 9, 2011), a California federal district court rejected an inmate's claim that his rights under RLUIPA were violated when he was not permitted to possess the book Stoic Warriors. However, the court ordered prison officials to submit a plan that would allow space and time in the prison chapel for the Five Percent Nation of Gods and Earths to engage in religious exercise, or else to demonstrate to the court that a total ban is necessary for institutional security.

In Shabazz v. Virginia Department of Corrections, 2011 U.S. Dist. LEXIS 102194 (ED VA, Sept. 8, 2011), a Virginia federal district court dismissed a number of plaintiffs who had failed to exhaust their administrative remedies as to complaints that Nation of Islam prisoners were being denied access to various religious activities and rights. The court ordered defendants to respond as to exhaustion on one plaintiff's claims.

In Parks v. Smith, 2011 U.S. Dist. LEXIS 102453 (ND NY, Sept. 9, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 102460, March 29, 2011) and dismissed RLUIPA and free exercise claims by an inmate who was barred from sending out a photo to a personal ad service. The court held that authorities had a compelling interest and used the least restrictive means in preventing the inmate from mailing a photo of himself wearing red pants and making a hand gesture that resembled one used by the Bloods gang, even though the inmate claimed it was a religious meditation gesture.

In Barros v. Minnick, 2011 U.S. Dist. LEXIS 103827 (ED CA, Sept. 13, 2011), a California federal magistrate judge found inadequate allegations to support a free exercise claim in an inmate's charge that defendants disposed of a cassette tape Bible recording belonging to him.

In Mitchell v. Cate, 2011 U.S. Dist. LEXIS 103843 (ED CA, Sept. 13, 2011), a California federal magistrate judge allowed an inmate to proceed against some of the defendants he named on a claim that his rights were infringed by keeping him from all participation in religious activity during his 8 months of administrative segregation.

In Daniels v. Bossier Parish Medium Security Facility, 2011 U.S. Dist. LEXIS 103891 (WD LA, Sept. 14, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103905, Aug. 23, 2011) and dismissed as frivolous free exercise and equal protection claims by a Muslim inmate. Plaintiff contended that there are no call-outs for Muslims to pray on Fridays, but there are Christian call-outs. He also alleged that Christian inmates receive Bibles without charge from preachers, but Muslim inmates can obtain copies of the Qur'an only by purchasing them.

In Zimmerman v. Jones, 2011 U.S. Dist. LEXIS 103714 (D CO, Sept. 14, 2011), a Colorado federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 103592, May 26, 2011) and dismissed plaintiff's complaints regarding sub-par kosher meals and a lack of Jewish supplies.

In Griffin v. Alexander, 2011 U.S. Dist. LEXIS 104000 (ND NY, Sept. 14, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 104905, Aug. 25, 2011), and dismissed an inmate's free exercise and RLUIPA challenge to denial of parole. The court however gave plaintiff permission to refile the challenge as a habeas corpus petition. At issue was plaintiff's claim that the parole board wanted him to enter a sex offender treatment program that would require him to falsely admit a sexual act he did not commit in violation of his religious obligation as a Jehovah's Witness not to lie. The court found that this claim, as currently pleaded, lacked merit.

Air Force Chief of Staff Cautions Commanders Against Endorsing Religion

Yesterday's Air Force Times reports on a Sept. 1 Memorandum (full text) issued by Air Force Chief of Staff Gen. Norton Schwartz. titled "Maintaining Government Neutrality Regarding Religion." The memo reads in part:

Leaders at all levels ... must avoid the actual or apparent use of their position to promote their personal religious beliefs to their subordinates or to extend preferential treatment for any religion....

Chaplain Corps programs, including activities such as religious studies, faith sharing and prayer meetings are vital to commanders' support of individual Airmen's needs and provide opportunities for the free exercise of religion. Although commanders are responsible for these programs, they must refrain from appearing to officially endorse religion.... Therefore, I expect chaplains, not commanders, to notify Airmen of Chaplain Corps programs.

The memo appears to be directed at situations such as last February's Air Force Academy National Prayer Luncheon which, while financed by the Chapel Tithes and Offerings Fund, was promoted by the command structure. (See prior posting.) A suit challenging the Luncheon was dismissed on jurisdictional grounds.

Same-Sex Couple To Sue B and B's For Rejecting Civil Union Ceremony

In Illinois, same-sex couple Tom and Mark Walthen are about to sue two bed-and-breakfasts after the establishments refused to rent space to the couple for their civil union ceremony.  According to yesterday's Chicago Tribune, the owner of one of the B and B's-- Timber Creek Bed and Breakfast in Paxton-- explicitly invoked his religious freedom rights.  He e-mailed the couple: "We will never host same-sex civil unions. We will never host same-sex weddings even if they become legal in Illinois. We believe homosexuality is wrong and unnatural based on what the Bible says about it. If that is discrimination, I guess we unfortunately discriminate." The Illinois Department of Human Rights found "substantial evidence" of a civil rights violations in the refusal by both B and B's, freeing the couple to file suit.  They plan to do so shortly.

Rabbinical School Dean Entitled To New York Property Tax Exemption

In In re Application of Renni Altman v. Assessment Review Commission of the County of Nassau, (Nassau Co. NY Sup. Ct., Sept. 6, 2011), a New York trial court held that a rabbi who was employed as Associate Dean of Hebrew Union College and Director of its Rabbinical School was entitled to the $1500 per year real estate tax exemption granted by New York law (RPTL Sec. 460) to clergy.  Nassau County argued that Rabbi Altman's position was administrative, not religious, and thus she was not entitled to the exemption. The court however held that her administrative duties were de minimis and were interconnected with her rabbinic duties that included addressing the professional development and spiritual needs of rabbinic students. Moreover the statute only requires that the member of the clergy be engaged in work assigned by the denomination in order to qualify for the exemption. [Thanks to Steven H. Sholk for the lead.]

Court Refuses To Decide Church Governance Dispute

In Rosenberger v. Jamison, (FL App., Sept. 16, 2011), a Florida state appellate court held that deciding a dispute about governance of the First Baptist Church of Micanopy would unconstitutionally entangle the court in a religious controversy.  The church's governing documents were changed to move it from a congregational-led church to one governed by elders. Four opponents of the change were terminated from membership.  They sued to reverse their expulsion and revoke the change in the church's governing documents, claiming that these actions were taken without following the procedures set out in the then-existing Articles and Bylaws of the church. The court said:

[T]he issue before us is whether the First Amendment prohibits judicial review of actions taken by a corporation allegedly in violation of its articles of incorporation and bylaws when the corporation is a church....

[E]xercising jurisdiction in this instance would be tantamount to “intervening on behalf of [a group] espousing particular doctrinal beliefs.” We can discern no way under the facts of this case to draw a clean line between essentially religious matters protected by the First Amendment and matters of corporate law.

No Attorneys' Fees Awarded In Litigation Over Bible Sign

In Signs for Jesus v. Town of Chichester, 2011 U.S. Dist. LEXIS 103430 (D NH, Sept. 13, 2011), a New Hampshire federal district court refused to grant costs and attorneys' fees under 42 USC Sec. 1988 to a group that ultimately prevailed at the town Planning Board and obtained permission to put up an electronic message sign to display Christian Bible verses. Plaintiffs sued after an initial refusal of their site plan, claiming free exercise and RLUIPA violations. (See prior posting.) Subsequently the Planning Board reversed its decision and approved the sign (see prior posting), and the court approved a consent decree dismissing the lawsuit.  Now, in a dispute over reimbursement of attorneys' fees, the court held that plaintiffs were not "prevailing parties" under Sec. 1988 because they received no material relief from the court.  The court said:

While plaintiffs have received site-plan approval (and a building permit), the Consent Decree awarded them substantially none of the relief they sought in their complaint. The Planning Board approved plaintiffs' site plan a month before the Consent Decree became effective and, for its part, the Consent Decree provided plaintiffs with no injunctive relief, no declaratory relief, no damages, no certiorari order, and no determination regarding the merits of plaintiffs' appeal of the ZBA's decision.

Suit Claims Israeli Independence Day Ceremony In Town Hall Violated Establishment Clause

The Greenwich (CT) Times yesterday reported that a candidate in next year's Democratic primary for U.S. Senate, Lee Whitnun, has filed suit in federal district court seeking a declaratory judgment that Greenwich, Connecticut acted unconstitutionally when it permitted the Jewish Federation of Greenwich to use the city's town hall on a Sunday last May for a celebration of Israel's Independence Day.  Along with the Independence Day celebration, a Bar Mitzvah ceremony for a visiting exchange student from Israel was held at town hall.  The student missed having the ceremony at the usual age of 13 because of the death of his father.

The complaint (full text) in Whitnum v. Town of Greenwich, (D CT, filed 9.8/2011), alleges that the arrangement violates the Establishment Clause as well as the "no preference" clause of the Connecticut constitution (Art. Seventh). The complaint alleges that the Independence Day celebration resulted in inextricably entangling traditional town hall paraphernalia with religious symbols such as the Star of David and "many displays actively promoting an explicitly religiously Jewish and politically Zionist world view." It contends that "to any reasonable observer, the Greenwich Town Hall functioned as an arm of the local synagogue."

The Executive Director of the UJA Federation of Greenwich defended the event saying: "The Israel celebration has been taking place at Town Hall for decades. I believe that other groups celebrate other national independence days. The celebration of Israeli Independence Day is not a religious event."  The  Jewish Federation paid a $351 custodial fee for use of the building for the event.

France Opens Former Fire House For Muslim Worship Site

AP reports that France's Interior Minister Claude Gueant has come up with a temporary solution to the shortage of space in French mosques.  Particularly in two mosques in northern Paris, so many Muslims wish to gather for Friday prayers that they are unable to fit into the buildings.  In a country where strong principles of secularism result in religion being treated as a private affair not manifested in public, the overflow crowds of Muslims have for years prayed on the public sidewalks outside the mosques.  On Wednesday, the French government came to an agreement with Muslim leaders for the outfitting of a 20,000 sq. ft. former fire house for use as two prayer halls.  This is seen as a temporary solution pending construction of an Islamic cultural center with a large prayer hall in Goutte d'Or. A tentative 2013 completion date has been set for the center.

FBI Stops Anti-Muslim Lectures To Trainees

Yesterday AP reported that the FBI is making policy changes to assure that instruction at its training academy is consistent with FBI policy. The change grows out of disclosures that for three days last April-- until stopped by the FBI-- an academy instructor had given lectures critical of Islam.  The lecturer told trainees that the more devout a Muslim is, the more likely he is to be violent. [Thanks to Alliance Alert for the lead.]

Suit Challenges Constitutionality Of Parsonage Allowance

Yesterday's Wisconsin State Journal reports that the Freedom from Religion Foundation has filed suit in a Wisconsin federal district court to challenge the constitutionality of Sec. 107 of the Internal Revenue Code which allows clergy to exempt their cost of housing from income for federal tax purposes. (Background.)  It claims that the exemption violates the Establishment Clause by subsidizing churches and by creating excessive entanglement of church and state. A similar challenge to the parsonage allowance filed in California was voluntarily dismissed by plaintiffs earlier this year. (See prior posting.)

UPDATE: Here is the full text of the complaint in the case, Freedom from Religion Foundation, Inc. v. Geithner, (WD WI, filed 9/13/2011). Also, FFRF has issued a press release on its filing of the lawsuit.

French iPhone App Violates Law Against Collecting Religious Personal Data

JTA yesterday reported that a French iPhone app called "Jew or Not Jew?" was removed from the French iPhone app store after Jewish groups and human rights groups claimed it violates French law. The app allows the user to guess whether various public figures are Jewish or not.  French law prohibits the collection of personal data, such as a person's religion or ethnicity, without the person's consent.  The law was a reaction to the practice of Nazi occupiers in World War II who collected such data to send Jews to concentration camps. The app's developer Jonathan Levy said he intended the app to show pride in being Jewish. The organization SOS Racisme said it was planning to file an official complaint over the app this week. Violation of the French law could be punishable by up to 5 years in prison and over $400,000 in fines. The Wall Street Journal reports that the app is available in App Stores outside France, including in the United States.

4th Circuit: Title VII Exemption for Religious Organizations Extends To Harassment Claims

In Kennedy v. St. Joseph's Ministries, (4th Cir., Sept. 14, 2011), in a 2-1 decision the U.S. 4th Circuit Court of Appeals held that the religious organization exemption in Title VII of the 1964 Civil Rights Act (42 USC 20003-1(a)) applies to religious harassment and retaliation claims, not just to claims of religious discrimination in hiring and discharge.   At issue was a suit against a Catholic nursing home by a nursing assistant, a member of the Church of the Brethren, who claimed that she was subjected to a series of offensive comments regarding her religious dress. Judge King dissenting urged dismissal, concluding that permission to file an interlocutory appeal was improvidently granted. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

State Department Releases Annual Report on International Religious Freedom; Names Countries of Particular Concern

Yesterday, Secretary of State Clinton spoke (full text) at the release of the Department's 13th Annual Report on International Religious Freedom. The report covers the period July- December 2010, reflecting a change in the reporting cycle by the Department.  The report discusses separately the situation in 198 countries. At the release, Secretary Clinton said in part:

In the Middle East and North Africa, the transitions to democracy have inspired the world, but they have also exposed ethnic and religious minorities to new dangers.... Now, the people of the region have taken exciting first steps toward democracy—but if they hope to consolidate their gains, they cannot trade one form of repression for another.

The Report's Executive Summary identifies seven types of threats to religious freedom around the world:  active state repression and impunity; violent extremist attacks; apostasy and blasphemy laws; repression of religious minorities; anti-Semitism; restrictions on Muslim attire and expression; and restrictions derived from security and related concerns. CNN has more on the release of the Report.

Assistant Secretary Michael Posner and Ambassador at Large for International Freedom Suzan Johnson Cook also spoke to the press. (Full text of remarks.)  Posner announced that Secretary Clinton has named eight countries as the worst religious liberty offenders by designating them "Countries of Particular Concern." These are the first CPC designations by the Obama administration. They are the same nations that were named previously: Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. However, In the past, the Administration had given waivers under the International Religious Freedom Act to Saudi Arabia and Uzbekistan. (See prior posting.)  Secretary Posner made no mention of similar waivers this year in his remarks.

In April the U.S. Commission on International Religious Freedom had recommended in addition to these eight countries, that Egypt, Iraq, Nigeria, Pakistan, Turkmenistan, and Vietnam be added. (See prior posting.)  In a press release yesterday, USCIRF Chairman Leonard Leo said that the Commission welcomed the State Department's action, and "respectfully urged" Secretary Clinton to consider adding the other six countries.

9th Circuit Upholds School's Order For Teacher To Remove Religious Banners

In Johnson v. Poway Unified School District, (9th Cir., Sept. 13, 2011), the 9th Circuit Court of Appeals rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. Discussing the free speech claim, the court said, in part:

We consider whether a public school district infringes the First Amendment liberties of one of its teachers when it orders him not to use his public position as a pulpit from which to preach his own views on the role of God in our Nation’s history to the captive students in his mathematics classroom. The answer is clear: it does not.

When Bradley Johnson, a high school calculus teacher, goes to work and performs the duties he is paid to perform, he speaks not as an individual, but as a public employee, and the school district is free to “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.”...  Just as the Constitution would not protect Johnson were he to decide that he no longer wished to teach math at all, preferring to discuss Shakespeare rather than Newton, it does not permit him to speak as freely at work in his role as a teacher about his views on God, our Nation’s history, or God’s role in our Nation’s history as he might on a sidewalk, in a park, at his dinner table, or in countless other locations.

In reaching its conclusion, the 9th Circuit reversed a decision by a California federal district court. (See prior posting.) SF Appeal reports on yesterday's 9th Circuit decision.

UPDATE: In a separate unpublished opinion, the 9th Circuit also rejected the teacher's claims under the California constitution. Johnson v. Poway Unified School District, 2011 U.S. App. LEXIS 18992 (9th Cir., Sept. 13, 2011).

Lawsuit Challenges Schools' Ten Commandments Displays

The ACLU of Virginia announced yesterday that it had filed suit in federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. The complaint (full text) in Doe 1 v. School Board of Giles County, (WD VA, filed 9/13/2011) recounts the sequence of events which led to the filing of the Establishment Clause challenge. For over 10 years, a copy of the Ten Commandments had been displayed in each school. When the Freedom from Religion Foundation filed an objection, the superintendent removed the displays and replaced them with copies of the Declaration of Independence.  However, this led to widespread community objections which, eventually, led to the school board by a split vote authorizing the posting of a broader display that includes the Ten Commandments, a picture of Lady Justice, the Star-Spangled Banner, the Bill of Rights,, the Virginia Statute for Religious Freedom, the Declaration of Independence, the Virginia Declaration of Rights, the Mayflower Compact, and the Magna Carta. (See prior posting.) The complaint alleges that this history demonstrates that any alleged secular purpose for the displays is a sham. AP reports on the filing of the lawsuit.

Victim Advocates File Urging International Criminal Court To Prosecute Pope and 3 Cardinals

The New York Times reports that yesterday the Center for Constitutional Rights CCR) representing Survivors Network of Those Abused By Priests (SNAP) filed a complaint (full text) with the International Criminal Court in the Hague seeking investigation and prosecution of 4 high level Vatican officials, including Pope Benedict XVI, for their roles in covering up sex abuse by priests. The 3 others charged are all Cardinals holding important positions in the Vatican, including American Cardinal William Levada. The complaint alleges that the ICC has jurisdiction because the sexual abuse amounts to torture and crimes against humanity. A CCR press release announcing the filing of the complaint reported that: "SNAP and CCR are embarking on a 12-city tour throughout Europe to demand local diocese turn over relevant documents and encourage other victims of sexual abuse by clergy to come forward and provide additional evidence to add to the complaint." The complaint is already accompanied by some 20,000 pages of supporting documents.

5th Circuit Allows Religious Discrimination Claim To Proceed

In Dediol v. Best Chevrolet, Inc., (5th Cir., Sept. 12, 2011), the U.S. 5th Circuit Court of Appeals reversed a Louisiana federal district court and refused to dismiss a Title VII discrimination claim by a former employee of an auto dealership alleging a hostile work environment based on both age and religion.  Milan Dediol's manager refused to permit him to take off work to volunteer at a church event, and subsequently made a string of harassing remarks directed at Dediol's religious beliefs. The court also for the first time in the Circuit held that a hostile work environment claim may be based on age-related harassment.

10th Circuit Hears Arguments On Anti-Shariah Amendment As Muslim Group Endorses Michigan's Bill

Yesterday, the U.S. 10th Circuit Court of Appeals heard oral arguments in Awad v. Ziriax, a case challenging the constitutionality of Oklahoma's voter-approved constitutional amendment that bans state courts from considering international law or Shariah law. (See prior related posting.) According to the Oklahoman, Questions from the 10th Circuit bench included ones as to why Shariah law was singled out and whether the ban would affect preferences of individuals of other religions in child custody cases.

Meanwhile, RNS reports that an umbrella group known as the American Islamic Leadership Coalition is supporting a proposed Michigan law (HB 4769) that would ban courts from enforcing foreign law "if doing so would violate a right guaranteed by" the U.S. or Michigan constitution. The ALIC statement (full text) reads in part:

we stand together as a diverse coalition in support of any legislation that serves to protect and integrate our communities into the fabric of this great nation, by strengthening our accountability to the laws of the land, and the constitutions of the various states in which we live.

As American Muslims we are conscious of the fact that ...  Islamists ... in the U.S. are trying their best to portray any opposition to manifestations of shari‘ah law as “racism” and “discrimination against Muslims.” However, as a coalition of traditional, liberal and secular Muslim Americans, we denounce this fear-mongering and playing of the race card, which only serves to mask the Islamists’ highly politicized agenda.