Supreme Court Review Sought In Two Cases

Petitions seeking Supreme Court review were filed yesterday in two cases of interest. A petition for certioarari (full text) was filed in Bronx Household of Faith v. Board of Education of the City of New York. (ADF press release.) In the case, the 2nd Circuit, in a 2-1 decision, upheld the New York Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities are available for many other kinds of activities. (See prior posting.)

A petition for certiorari (full text) was also filed in Victory Through Jesus Sports Ministry Foundation v.  Lee's Summit R-7 School District. (Liberty Counsel press release.) In the decision below, 8th Cir., May 20, 2011, (full text), the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral. Only specified groups that directly benefit the school district could do so, except that any community youth organization had a one-time opportunity at the beginning of the school year to send home literature.  In this case, a group that was dedicated to using "sports as evangelism" complained about being limited to the once-per-year distribution, even though the school district did include its flyer for its summer soccer camp on the school website.

Release of Tapes of Prop 8 Trial Again On Hold

In the latest skirmish over California's Proposition 8-- the ballot measure that barred same-sex marriage-- a panel of the U.S. 9th Circuit Court of Appeals yesterday issued a stay pending appeal of a district court order that authorized release of digital recordings of the original trial on Prop 8's constitutionality. (See prior posting.) Here full text of the 9th Circuit's order in Perry v. Brown. AP reported on court's action.

U.S. Commission on Civil Rights Releases Report On Bullying In Schools

The U.S. Commission on Civil Rights today announced the release of a report titled Peer-to-Peer Violence and Bullying: Examining the Federal Response. The report develops recommendations to further address the problem of bullying and harassment based on sex, race, national origin, disability, sexual orientation, and religion in public K-12 schools. One of the issues addressed is the extent to which Title VI of the 1964 Civil Rights Act reaches bullying based on religion. The report says:

Although Title VI does not prohibit discrimination on the basis of religion, it does forbid discrimination on the basis of race, color, or national origin. Both ED [U.S. Department of Education] and DOJ [Department of Justice] have taken the position that Title VI prohibits discrimination on the basis of actual or perceived shared ancestry or ethnic characteristics, regardless of whether those groups share a common faith.... 

Although ED enforces Title VI with respect to harassment of members of religious groups based on their shared ancestry or ethnic characteristics, Title VI itself leaves a hole in ED‘s enforcement. That is, Title VI does not protect against harassment of students based solely on their religious faith, nor does it protect against harassment of students who belong to religious groups that do not have shared ancestry or ethnic characteristics. As a result, ED cannot protect students from the ―peculiar harms created by religious bigotry. Furthermore, under current law, religious groups with shared ancestry or ethnic characteristics receive certain protections that religious groups without shared ancestry or ethnic characteristics do not receive; and would-be discriminators can evade Title VI liability by claiming that students harass based solely on religious bigotry.

Advocates urge Congress to close this ―loophole by passing legislation that protects against harassment of students based on their religion.

Extensive testimony and background materials are also available on the Civil Rights Commission's website.

New White House Petition Website Attracts Many Church-State Issues

At the beginning of this month, the White House announced its new We the People website. As reported by Politico, the site allows anyone to post a petition to the Administration to take action on an issue of concern.  If a petition garners 5000 signatures in 30 days, a working group of policy officials in the White House will respond to it.  So far, a number of the most popular petitions raise church-state issues.  A report in yesterday's Christian Post calls some of the petitions "anti-God." A petition to remove the phrase "under God" from the Pledge of Allegiance has now attracted over 13,000 signatures, and one to remove "In God We Trust" from currency has 9100.  A petition to repeal the Defense of Marriage Act has attracted 8900 signatures. A petition to "repeal the tax exemption for churches and allow them to apply like a non-profit organization" has 7300 signatures.  The petition that appears to have attracted the most signatures-- over 19,000-- calls for an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin. A number of other petitions on religion and church-state issues have not yet reached the 5000 signature mark. All petitions are available here.

Britain Sees Rise In Polygamy Among Young Muslims

The Australian (carrying a story from The Times) today reports that Britain is experiencing an unexpected rise in polygamy among young Muslims.  Even though polygamy is illegal in Britain, it is permitted under Shariah law and accepted in many Muslim communities.  Britain's Islamic Shariah Council says that for the first time, polygamy is among the top ten reasons that wives seek divorces. In 2010, 43 out of 700 divorce applications cited polygamy as the reason. Men take second-- or even third and fourth-- wives in three kinds of situations: (1) young men who wish to practice a more conservative form of Islam; (2) the most common situation-- failed marriages where the wife does not want a divorce and the father wants to continue seeing and supporting the children; and (3) the rarer situation in which a man's parents remain in their home country and he marries a woman there who is essentially the caregiver for his parents.

Court Refuses To Adjudicate Pastor's Claim The He Was Wrongfully Transferred

In Washington v. African Methodist Episcopal Church, Inc., (WD NY, Sept. 16, 2011), a New York federal district court dismissed on First Amendment grounds a lawsuit by a minister against his church and one of its bishops for transferring him to a new assignment without giving him the 90 days notice that The Doctrine and Discipline of the AME Church called for.  However, the Book of Discipline also provided that: "The bishop shall not have anything in this section applied which will prevent the bishop from using godly judgment in making changes in the appointments, that are deemed necessary for the good of the church." The court concluded that to adjudicate plaintiff's claim, "the Court would necessarily have to interpret the AME Church’s spiritual guidance, thus entangling itself in Defendant’s Free Exercise rights under the First Amendment." Reporting on the decision yesterday, the Rochester (NY) Democrat and Chronicle says that plaintiff, Marlowe Washington, stayed in Rochester and opened his own church rather than accepting the transfer to Queens.

ACLU Sues Virginia County Over Sectarian Prayers

The ACLU of Virginia announced yesterday that it had filed a federal court lawsuit against the Pittsylvania (VA) County Board of Supervisors over the opening of county board meetings with Christian prayer. The complaint (full text) in Jane Doe v. Pittsylvania County, Virginia, (WD VA, filed 9/26/2011), alleges that the invocation at nearly every Board of Supervisors meeting invokes the name of Jesus, and that at the meeting immediately after receiving a complaint from the ACLU, each individual commissioner delivered a prayer, all but two of which were explicitly Christian. However the Board also moved the prayer to a non-agenda item before the roll call. The ACLU has also filed a Memorandum in Support of Motion for Preliminary Injunction.

National Groups Question Obama Policy On Faith-Based Hiring

Last week, 56 major religious, educational, health and civil rights organizations sent a letter (full text) to President Obama, again asking him to clarify the Administration's position on religion-based hiring in federally funded faith-based programs. The groups oppose religious discrimination in hiring and firing for positions funded by federal dollars.  The letter follows a somewhat ambiguous response last month to similar concerns in a statement posted on the White House website by Joshua Dubois, Executive Director of The White House Office of Faith-based and Neighborhood Partnerships. (See prior posting.) [Thanks to Michael Lieberman for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Meir Katz, When is Medical Care 'Futile'? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care, (Nebraska Law Review, Vol. 90, p. 1, 2011).
• Elizabeth Rieser-Murphy and Kathryn DeMarco, No Good Deed Goes Unpunished? Alabama’s New Immigration Law – A Threat to Conservative Values (September 13, 2011).

Recent and Forthcoming Books:

• Halyna Hryn (ed.), Churches and States: Studies on the History of Christianity in Ukraine, (Harvard Univ. Press, (Oct. 2011).
• Richard Landes and Steven T. Katz (eds.), The Paranoid Apocalypse-- A Hundred-Year Retrospective on The Protocols of the Elders of Zion, (New York Univ. Press., Dec. 2011).
• Winnifred Sullivan, Robert Yelle, and Mateo Taussig-Rubbo (eds), After Secular Law, (Stanford Univ. Press, 2011).
• Christian S. Davis, Colonialism, Antisemitism, and Germans of Jewish Descent in Imperial Germany, (Univ. of Michigan Press, Forthcoming).
• Uriel I. Simonsohn, A Common Justice-- The Legal Allegiances of Christians and Jews under Early Islam, (Penn Press, Sept. 2011).
• James Howard Smith and Rosalind I. J. Hackett (eds.), Displacing the State: Religion and Conflict in Neoliberal Africa, (Notre Dame Press, Dec. 2011).

Scalia Speaks At Duquesne About Morality, Capital Punishment

Justice Antonin Scalia on Saturday spoke at the event marking the centennial of Duquesne University School of Law.  The Pittsburgh Post-Gazette reports on his remarks that called on the law school to maintain its moral judgment, saying: "Our educational establishment these days, while so tolerant of and even insistent on diversity in all other aspects of life, seems bent on eliminating the diversity of moral judgment, particularly moral judgment based on religious views." Responding to concerns raised by protesters who oppose capital punishment, Scalia said: "If I thought that Catholic doctrine held the death penalty to be immoral, I would resign. I could not be a part of a system that imposes it."

Top Bishop Says Obama's Position ON DOMA Threatens Enormous Church-State Conflict

Last week, Archbishop Timothy Dolan, president of the United States Conference of Catholic Bishops, sent a strongly worded letter (full text) to President Obama objecting to the Administration's decision earlier this year to no longer defend the constitutionality of the Defense of Marriage Act. (See prior posting.) Dolan said in part:

[I]t is particularly upsetting, Mr. President, when your Administration, through the various court documents, pronouncements and policies identified in the attached analysis, attributes to those who support DOMA a motivation rooted in prejudice and bias. It is especially wrong and unfair to equate opposition to redefining marriage with either intentional or willfully ignorant racial discrimination, as your Administration insists on doing....

Our federal government should not be presuming ill intent or moral blindness on the part of the overwhelming majority of its citizens, millions of whom have gone to the polls to directly support DOMAs in their states and have thereby endorsed marriage as the union of man and woman. Nor should a policy disagreement over the meaning of marriage be treated by federal officials as a federal offense— but this will happen if the Justice Department's latest constitutional theory prevails in court. The Administration's failure to change course on this matter will, as the attached analysis indicates, precipitate a national conflict between Church and State of enormous proportions and to the detriment of both institutions.

The Bishops Conference also issued a press release announcing the letter.

Sukkah In Park Raises Church-State Question

The New York Times reported yesterday that the issue of religious displays on public property is arising now in connection with plans by a Jewish group to erect a sukkah-- a temporary hut-- in a small park in TriBeCa.  Chabad of TriBeCa has asked for a permit to put up the temporary Sukkot holiday structure which is a symbol of the fragile shelters the ancient Israelites used while wandering in the desert. Community Board 1 is scheduled to vote Tuesday on whether or not to allow the sukkah.  Some object on church-state grounds.  Chabad says that Jews in the area want the sukkah so they have a convenient place to carry out the custom of sitting and eating in the sukkah during the Sukkot holiday period.

British Police Say Some Bible Verses Violate Public Order Act

According to the Christian Institute, in Britain police in Lancashire last week told the owner of  the Salt and Light Coffee House that some Bible verses displayed at the cafe violate the Public Order Act 1986.  Section 5 of the Act bars display of "any writing, sign or other visible representation which is threatening, abusive or insulting, within the hearing or sight of a person likely to be caused harassment, alarm or distress thereby." The cafe owner runs DVDs that cycle through each verse of the New Testament on a TV screen located on the cafe's back wall.  Police received a complaint that some of the verses were homophobic.

Recent Prisoner Free Exercise Cases

In Gardner v. Riska, (11th Cir., Sept. 22, 2011), the 11th Circuit held that  an inmate had failed to demonstrate that he sincerely believe a kosher diet was important to the free exercise of his religion, even though his claim for injunctive relief against the Florida Department of Corrections was not "frivolous."

In Williams v. Horel, 2011 U.S. Dist. LEXIS 105484 (ND CA, Sept. 19, 2011), a California federal district court permitted a Buddhist inmate to proceed against some of the named defendants on claims that they failed to provide him with an adequate religious vegetarian diet.

In Vinson v. Riley, 2011 U.S. Dist. LEXIS 105378 (WD MI, Sept. 16, 2011), a Michigan federal district court rejected qualified immunity for defendants who improperly relied on an inmate's objective knowledge of his religion to determine his religious sincerity.

In Ali v. Dewberry, 2011 U.S. Dist. LEXIS 105367 (ED TX, Sept. 16, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 105349, July 27, 2011) and denied a Muslim inmate's motion for relief from judgement in a case in which plaintiff complained that his religious concerns about not helping others to eat pork were violated when he was assigned to work as a fork lift operator at a packing plant that slaughtered and processed pork.

In McKethan v. New York State Department of Correctional Services, 2011 U.S. Dist. LEXIS 105771 (SD NY, Sept. 16, 2011), a New York federal district court permitted an inmate to proceed with claims that his Nation of Gods and Earths (NGE) universal crown was wrongfully confiscated, and that his transfer to a different prison was in retaliation for his complaints regarding treatment of members of NGE. VArious other claims were dismissed.

In Damron v. Jackson, 2011 U.S. Dist. LEXIS 106360 (SD OH, Sept. 21, 2011), an Ohio federal district court dismissed claims by inmates who are members of the Christian Separatist Church that their rights were violated by the denial of work proscriptions on the Sabbath and holidays, denial of segregated worship and segregated cell assignments. It also denied a claim for unequal treatment. However the court permitted plaintiffs to proceed with complaints regarding withholding or confiscation of separatist and Nazi literature.

In Moussazadeh v. Texas Department of Criminal Justice, 2011 U.S. Dist. LEXIS 106451 (SD TX, Sept. 20, 2011), a Texas federal district court, in a case on remand from the 5th Circuit, dismissed plaintiff's claim for a kosher diet, finding he had failed to prove the sincerity of his religious dietary beliefs.

In Epps v. Grannis, 2011 U.S. Dist. LEXIS 106617 (SD CA, Sept. 20, 2011), a California federal district court denied a TRO and preliminary injunction to a Muslim inmate who sought to attend worship service, receive religious packages and a kosher diet.

In Ward v. Lee, 2011 U.S. Dist. LEXIS 106733 (WD LA, Sept. 20, 2011), a Louisiana federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 106801, Aug. 11, 2011) and rejected an inmate's claims that his religious rights were violated when he was barred from chapel privileges for 8 months for masturbating in the chapel.

In Native American Council of Tribes v. Weber, 2011 U.S. Dist. LEXIS 106979 (D SD, Sept. 20, 2011), a South Dakota federal district court denied defendants' summary judgment on plaintiff's complaint under RLUIPA and the 1st and 14th Amendments regarding a prison ban on tobacco for Native American religious ceremonies. However the court dismissed claims under the American Indian Religious Freedom Act and international law.

City Will Allow Misdemeanor Defendants To Choose Church Over Jail

WKRG News reported this week that Bay Minette, Alabama is beginning a new program to allow those who face sentences by the city for non-violent misdemeanors to avoid jail and a fine by instead electing to attend church every Sunday for one year. According to Bay Minette police chief Mike Rowland, the program-- called Operation Restore Our Community-- will save the city $75 per day for each inmate that chooses the non-jail alternative.  So far 56 churches have signed up to participate in the program which requires offenders to check in each week with the church's pastor. After one year of church attendance, the offender's case will be dismissed. Rowland says the program is constitutional because the offender has a choice of whether to choose the church option, and may select the church of his or her choice. [Thanks to Scott Mange for the lead].

Contempt Motion Filed Over Use of Banned City Seal

In 1991, in Harris v. City of Zion, (7th Cir., March 19, 1991, en banc rehearing denied) the U.S. 7th Circuit Court of Appeals held that Zion, Illinois' seal, which depicted various Christian images and the phrase "God Reigns," violated the Establishment Clause. In 1993, the city adopted, and the district court approved, a new seal which merely contained the phrase "In God We Trust." However, now an ad in the Sept. 17-18 Weekend Edition of the Lake County News-Sun invited residents to the city’s third annual Community Network Forum. The ad featured City Commissioner Shantal Taylor next to the old city seal which had been declared unconstitutional.  Yesterday's Lake County News-Sun reports that activist Rob Sherman has filed a motion to hold the city and Taylor in contempt for violating the 1991 injunction by sponsoring the ad. A hearing is scheduled for Oct. 4.

Proposed Settlement Filed In Houston Veterans' Cemetery Case

Yesterday, a joint motion for entry of a consent decree (full text of motion) was filed in Rainey v. U.S. Department of Veterans Affairs, (SD TX, filed 9/22/2011).  The lawsuit claimed that VA cemetery rules were applied to interfere with prayer and religious expression at commitment ceremonies in Houston's National Cemetery.  (See prior posting.) Under the proposed consent decree (full text), reached after mediation by a former Texas Supreme Court justice, the government agreed to 50 stipulations that facilitate the VFW, the Memorial Ladies and the American Legion's providing honor guard ceremonies and condolence cards, including religious expressions, unless the family objects.  To accomplish this, among other things, the VFW and Memorial Ladies are to be decertified as VA "without compensation" employees, and they will operate as private citizens. The decree also assures that these groups can work with funeral homes in offering to participate in committal services.

One of the stipulations provides that language in a National Cemetery Administration directive requiring invocations and benedictions to be "inclusive" and "nonderogatory" will be replaced with language that will enable NCA to preserve the dignity and solemnity of national cemeteries and enforce VA safety and security regulations. The VA will also pay $215,000 in attorneys' fees to plaintiffs. The proposed settlement must still be approved by the court. AP and the Houston Chronicle report on the settlement.

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.