Pope Speaks To Bundestag Urging Religion To Affect Legislation

DPA reports that Pope Benedict XVI yesterday, on the first day of his trip to Germany where he was born, spoke to the Bundestag. He asked lawmakers to keep religion in mind when they drafted laws. He also defedned his right as head of the Vatican state to speak to the German Parliament. A number of members of Parliament boycotted the speech in protest. His address was described as "mainly a philosophical attack on the idea that religion has no place in ethics and politics."

French Court Fines 2 For Wearing Burqa

CNN reported that a French court yesterday apparently became the first court to impose fines for violations of France's ban on wearing of the burqa in public.  (In April, Paris police imposed an on-the-spot fine for violations on another woman.)  One of the women fined yesterday, Hind Ahmas, said she had sought out the punishment so she can take her case to the European Court of Human Rights. Ahmas was fined 120 Eros, while a second woman, Najet Ait Ali, was fined 80 Euros. The fines were later paid by a group called "Don't Touch My Constitution." The group has offered to cover penalties imposed on any woman under the French law.

Suit Seeks Religious Exemption From Drivers License Biometric Photo

In Cleveland County, Oklahoma, a woman has filed suit is state court seeking a religious accommodation that would allow her to obtain a driver's license with a low resolution photograph instead of the state-required high-resolution photo that captures biometric data.  The complaint (full text) in Beach v. Oklahoma Department of Public Safety, (OK Dist. Ct., Sept. 21, 2011), says that plaintiff has learned that the required photographs are in a format required by the United Nations International Civil Aviation Organization, and will be placed in a database shared by various jurisdictions.  Plaintiff alleges that she has a sincerely held religious belief that the Bible, in Revelation 13:16-18 and 14:9-11 (passages dealing with the mark of the beast): "explicitly commands believers to not participate  in a global numbering identification system using the number of man, and eternally condemns participation in that system."

The lawsuit seeks a declaratory judgment that the refusal to provide an accommodation violates the Oklahoma Religious Freedom Act and an injunction requiring granting of an exemption.  The suit also claims that the photo requirement infringes plaintiff's reasonable expectation of privacy in her biometric data. A press release from the Rutherford Institute announced filing of the lawsuit.

Maryland High Court Rejects Application of Ministerial Exception Doctrine In Sexual Harassment CAse

In Prince of Peace Lutheran Church v. Linklater, (Ct. App., Sept. 21, 2011), the Maryland Court of Appeals, the state's highest appellate court, held that the ministerial exception doctrine did not bar a state law sexual harassment claim by a former music director of a church.  The church did not claim that there was any doctrinal reason for the alleged harassment, and the congregation's parent body has promulgated a strong policy against sexual harassment.

City's Allocation To Gospel Festival Questioned

In San Diego, each member of city council is allocated $25,000 each year to use to support events in his or her district.  Sign On San Diego on Tuesday reported that again this year, Council President Tony Young is allocating a portion of his funds to support a gospel music festival known as Praise Fest.  Again the ACLU is objecting. Last year, after objections were raised, promoters removed religious references as well as references to the city from the event's website. A spokesman for the City Attorney’s Office said Praise Fest is primarily "a community-oriented event featuring not only gospel music, which is rooted in culture, but also educational and family-friendly entertainment."

Canadian Court Says Refugee Applicant Held To Too High A Standard of Religious Knowledge

In Mao Qin Wang v. Minister of Citizenship and Immigration, (Fed. Ct., Sept. 2, 2011), Canada' Federal Court held that immigration officials had held an applicant for refugee status to an unreasonably high standard in considering whether he was a genuine Roman Catholic who feared oppression if he returned to China. The court wrote, in part:

In the present case, the Court finds that the Board erred in determining that the applicant was not a genuine Roman Catholic by holding him to an unreasonably high standard of religious knowledge. For example, the applicant was asked if the wafer distributed during Holy Communion represented the body of Jesus or if it was the body of Jesus. The applicant answered that it represented the body of Jesus.... The Board found this answer to be incorrect. The Board erroneously determined the applicant’s knowledge of the Catholic faith by way of “trivia”.

Yesterday's National Post gives more details of the Immigration and Refugee Board's opinion that the court found objectionable.

Group Complains To 2 School Systems About Religious Activities

The Freedom from Religion Foundation announced yesterday two separate complaints to school officials about religious activities.  It has sent a letter of complaint (full text)  to the Chesterfield County, South Carolina school superintendent over activities at a Jefferson (SC) middle school.  At issues is a Sept. 1 school assembly billed as a "worship rally."  The assembly featured a Christian evangelist and rap artist, and included handing out fake $1 million bills with proselytizing verses on them. The bills are pictured in FFRF's press release. The letter also complained about Christian crosses put up on the school lawn to commemorate 9/11, and about the school's promotion of an upcoming "See You At the Pole" prayer event.

In a separate letter (full text) to the president of the Jefferson Parish, Louisiana school board, FFRF raised questions about religious remarks made by the school board president during mandatory teacher in-service training sessions. The letter also raised concerns about e-mails to teachers and staff from the school board president in which he indicated he was praying for them.  An FFRF press release and an article in the New Orleans Times-Picayune both report on FFRF's complaing.

Study Criticizes Kazakhstan's Proposed Religion Law

Yesterday the Institute on Religion and Public Policy released a lengthy analysis of Kazakhstan's proposed new Law on Religious Activity and Religious Associations. The report concludes that:

passage of this legislation would represent a serious setback for religious freedom in Kazakhstan. In the INSTITUTE’S opinion, the legislation contravenes Organization for Security and Cooperation in Europe (OSCE) and United Nations (UN) standards because it clearly discriminates against minority religious groups....

The draft Religion Law and the Administrative Code Law are completely inconsistent with fundamental human rights. The recurring theme of the draft amendments is that they are structured in ways that would completely ban religious organizations or severely restrict religious activities; censor importation and restrict dissemination of religious literature; restrict foreign missionary activity; restrict the construction of new places of worship; and impose sanctions on religious leaders and organizations, including the banning of religious organizations, in a manner impermissible under international standards.

When Does A Home Bible Study Group Become A "Church"?

Pacific Justice Institute announced last week that it is filing an appeal with an Orange County California Superior Court of a decision by a San Juan Capistrano (CA) hearing officer requiring Bible study groups to obtain a conditional use permit to meet in a private home. According to The Blaze on Monday:

City officials ... say Chuck and Stephanie Fromm are in violation of municipal code 9-3.301, which prohibits “religious, fraternal or non-profit” organizations in residential neighborhoods without a permit. Stephanie hosts a Wednesday Bible study that draws about 20 attendees, and Chuck holds a Sunday service that gets about 50.

Homeowners Chuck and Stephanie Fromm, were fined $300 by the hearing officer, and threatened with $500 fines for future violations. [Thanks to Michael Kessler for the lead.]

"Don't Ask, Don't Tell" Formally Ended Yesterday

Yesterday, the military's "Don't Ask, Don't Tell" policy was finally and formally repealed. Under the law passed last year (see prior posting), repeal came 60 days after formal certification by top officials that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention.  In a statement (full text) marking the event, President Obama said:

As of today, patriotic Americans in uniform will no longer have to lie about who they are in order to serve the country they love. As of today, our armed forces will no longer lose the extraordinary skills and combat experience of so many gay and lesbian service members. And today, as Commander in Chief, I want those who were discharged under this law to know that your country deeply values your service.

A posting yesterday afternoon on the White House blog by Presidential adviser Valerie Jarett says that: "Already, gay and lesbian men and women have sent in their applications to proudly – and openly – serve the country we all love."  The Wall Street Journal reports that the Defense Department has published revised regulations reflecting DADT repeal.

Louisiana Presbyterian Church Keeps Control of Its Property [Corrected]

In Carrollton Presbyterian Church v. Presbytery of South Louisiana of the Presbyterian Church (USA), (LA App., Sept. 14, 2011), a Louisiana state appellate court upheld the right of a Presbyterian congregation to sell real property titled in its name.  It held that a provision in the PCUSA's Book of Order regarding rights of the parent church does not apply to this case. That provision of church law specifies that property titled in the name of the congregation is nevertheless held in trust for the parent church. A provision in the Church's Book of Order, however, allowed congregations that were part of the Presbyterian Church in the United States, when it reunited with the United Presbyterian Church in the USA, to opt out of the provision. Carrollton had opted out. The court went on to say that even if Carrollton had not opted out, neutral Louisiana trust law would apply to this case.

The court also upheld against 1st Amendment challenge provision in the injunction that were designed to prevent evasion of its terms.  These included initiating disciplinary actions against Carrollton officials because of the property dispute, dissolving the church in order to take over its property, or otherwise interfering with congregational personnel in ways that relate to use of the property. This does not prevent non-pretexutal ecclesiastical actions. Virtue Online comments on the decision, comparing it to similar cases in the Episcopal Church arising under the so-called Dennis Canon. AnglicansUnited has background on the case.

Court To Unseal Recording of Proposition 8 Trial

In Perry v. Schwarzenegger, (ND CA, Sept. 19, 2011), a California federal district court judge agreed to unseal the digital recording of last year's non-jury trial last on the constitutionality of California's Proposition 8-- the state constitutional amendment barring same-sex marriage.  Focusing on the importance of transparency of judicial proceedings, the court rejected as unsupported conjecture the argument that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings.The court, however, stayed the effectiveness of its order until Sept. 30 to give the parties time to file an appeal and seek a further stay. AP reports on the decision.

En Banc Review To Be Sought In Classroom Banner Case

In a press release yesterday, the Thomas More Law Center announced that it will petition the 9th Circuit for en banc review in Johnson v. Poway Unified School District. In the case, a 3-judge panel of the 9th Circuit rejected claims by a high school calculus teacher that his free speech rights, as well as the Establishment Clause and Equal Protection clause,were violated when his school district required him to remove large banners posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

9th Circuit: Fair Housing Act Religious Exemption Protects Homeless Shelter

In Intermountain Fair Housing Council v. Boise Rescue Mission, (9th Cir., Sept. 19, 2011), the U.S. 9th Circuit Court of Appeals held that the religious exemption in the federal Fair Housing Act applies to shield from religious discrimination claims an organization that sponsors Christian homeless shelters and a drug treatment program.  Thus no claim lies against the Boise Rescue Mission for requiring participants in its drug treatment program to become Christian before graduating. Similarly no religious discrimination claim lies because of the shelter's practice of feeding those who attend the shelter's religious services first before those who do not attend are fed. AP reports on yesterday's decision. (See prior related posting.) [Thanks to Becket Fund for the lead.]

Pakistan Court Issues Temporary Ban on Facebook; Suit Seeks Broader Ban

In Pakistan, the Lahore High Court is hearing a lawsuit seeking a permanent ban in the country on access to the social netwrking site Facebook because it has hosted a page titled "2nd Annual Draw Muhammad Day-May 20, 2011." According to Pakistan Today, yesterday, the court issued a temporary order while the case is pending, requiring the Ministry of Information and Technology to block all websites that spread religious hatred, especially Facebook. However no search engines, such as Google, are to be blocked. The lawsuit, filed by a public interest litigation firm, asks the court to require the federal government to create a permanent authority having legal status that would monitor websites across the world and ban those that blaspheme any religion or their holy personalities. Meanwhile a search of Facebook suggests that the offending page has already been taken down.

Egyptian Copts Seeking Divorce Plan To Resign To Invoke Legal Loophole

Under Egyptian personal status law, the Coptic Orthodox Church controls divorce of couples where both are members of the Church.  Al-Ahram this week reports that hundreds of Copts who are seeking a divorce plan to gather in front of the Ministry of Justice to collectively resign membership in the Church.  Under Egyptian law, if a non-Muslim couple is of different religious denominations, then Islamic Shariah law applies to their divorce.  This will permit the couple to get around the Coptic Church's limitation of the grounds for divorce to adultery. Some are calling for the Ministry of Justice to permit notaries to provide civil marriages and divorce.

Maldives Promulgates New Regulations To Prevent Extremist Islamic Teachings

In the Maldives, the government has published new regulations (full text) under the 1994 Protection of Religious Unity Act in the country's official gazette. According to yesterday's Minivan News, the new regulations, which have undergone numerous revisions since the original draft issued last year, are aimed at preventing the spread of extremism. Under the regulations, only individuals approved by the Ministry of Religious Affairs may deliver religious sermons or lectures.  Among the requirements for approval is that the individual have obtained a degree from one of 36 specified colleges or universities in 12 countries.  The regulations also set out 12 principles that must govern any religious sermons or advice. The include requirements that the person:

(f) Not engage in any talk that may create hatred and anger among the people, nor disseminate any information that incites to violence of any kind.

(g) Not engage in any talk that may be interpreted as racial and gender discrimination, nor prevent people from education or health services in the name of Islam. 

(h) When explaining issues contested among scholars, clearly explaining each scholar’s individual stand on the contested issue; and if the licensed preacher takes a personal side on the issue, clearly explaining to his/her audience why and based on what criteria and evidence he/she is basing his/her personal judgment on that particular issue.

The regulations also bar propagating any faith other than Islam and displaying in public books on other religions.  The media may not  broadcast programs that humiliate Allah, the Qur'an, the Sunnah of the Prophet Muhammad  or Islam.

Both the Islamic Foundation of the Maldives and the Adhaalath Party (that controls the Islamic Ministry) have objected to the new regulations.

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.