U.S. Bishops Create New Committee On Religious Liberty

The U.S. Conference of Catholic Bishops announced last week that it has formed a new Ad Hoc Committee on Religious Liberty "to address growing concerns over the erosion of freedom of religion in America." USCCB president Archbishop Timothy Dolan also sent a letter to fellow bishops informing them directly of the new Committee, saying:

The Framers of the Constitution themselves understood [religious liberty] ...  to be based on the norms inherent in Natural Law – namely, "that all men are created equal, that they are endowed by their Creator with certain inalienable rights, and that among these are Life, Liberty, and the Pursuit of Happiness."  This basic right, in its many and varied applications for Christians and people of faith, is now increasingly and in unprecedented ways under assault in America.

The new committee will be chaired by Bishop William Lori of Bridgeport, Connecticut. Among the pressing issues identified by the bishops are federal policies regarding reproductive health services, administration opposition to the Defense of Marriage Act, the Justice Department's position on the "ministerial exception" doctrine, and the narrow religious exemptions in New York's same-sex marriage law.

Court Upholds Regulation of Fortune Tellers

In Moore-King v. County of Chesterfield Virginia, 2011 U.S. Dist. LEXIS 112205 (ED VA, Sept. 30, 2011), a Virginia federal district court rejected  constitutional challenges to Chesterfield County, Virginia's regulation of the business of fortune telling. Patricia Moore-King, a "spiritual counselor" who operated under the name of "Psychic Sophie" claimed that the county's zoning, business license tax and fortune teller permit ordinances violate her free exercise of religion, free speech and equal protection rights. The court held that plaintiff's predictions and counseling services are inherently deceptive commercial speech, and that the regulation of them is reasonably drawn. The court rejected plaintiff's free exercise and RLUIPA claims, finding that she is not engaged in religious practices. It also rejected her equal protection claims.

Faith Healing Parents Convicted In Death of Child

In Oregon City, Oregon last week, Dale and Shannon Hickman were convicted of second degree manslaughter in the death of their seriously ill infant son for whom they prayed and who they anointed with olive oil instead of seeking medical help. AP reports that the Hickman's are members of the Followers of Christ Church which has a history of rejecting medial care for members' children. Because of a religious exemption in the prior version of state law, the Hickman's are likely to face no more than 18 months in prison and a $250,000 fine. This year the state legislature removed the religious defense for criminal violations.

Israeli Court Says Author Can Change Status to "Without Religion"

In Israel, a trial court last week granted a petition by award-winning author, 81 year-old Yoram Kaniuk, to change his official religious status in the Interior Ministry's Population Registry from "Jewish" to "Without Religion."  Haaretz reports that Tel Aviv District Court Judge Gideon Ginat wrote: "Freedom from religion is a freedom derived from the right to human dignity, which is protected by the Basic Law on Human Dignity and Freedom." Author Kaniuk says this still allows him to be Jewish by nationality. Last year, Interior Ministry officials allowed the religious status of Kaniuk's infant grandson to be changed from American Christian to "without religion." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]Israeli Court Says Author Can Change Registration Status From Jewish To "Without Religion"

Recent Law Review Review Articles

From SSRN:

• Marie Ashe, Privacy and Prurience: An Essay on American Law, Religion, and Women, (American Journal of Legal History, Vol. 51, p. 461, 2011).
• Katherine Spencer, Mahr as Contract: Internal Pluralism and External Perspectives, (Oñati Socio-Legal Series, Vol. 1, No. 2, 2011).
• Paul Horwitz, Act III of the Ministerial Exception, (Northwestern University Law Review, Forthcoming).
• Richard W. Painter, The Moral Responsibilities of Investment Bankers, (University of St. Thomas Law Journal, Vol. 8, No. 1, 2010).
• Samuel T. Grover, Religious Conscience Exemptions to the PPACA Health Insurance Mandate, (American Journal of Law and Medicine, Vol. 37, No. 4, 2011).
• Leslie C. Griffin, Ordained Discrimination: The Cases Against the Ministerial Exception, (U of Houston Law Center No. 2011-A-9, Sept. 30, 2011).
• Susan E. Hauser, More Than Abstract Justice: The Defense of Marriage Act and the Equal Treatment of Same-Sex Married Couples Under Section 302(A) of the Bankruptcy Code, (American Bankruptcy Law Journal, Forthcoming).
• Anita Bernstein, Toward More Parsimony and Transparency in 'The Essentials of Marriage', (Michigan State Law Review, Vol. 81, 2011).
• Caroline Mala Corbin, The Irony of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, (Northwestern University Law Review Colloquy, Forthcoming).

SmartCILP:

• John Garvey, Intellect and Virtue: The Idea of a Catholic University, 60 Catholic University Law Review 563-573 (2011).
• Samuel J. Levine, Second Annual Holocaust Remembrance Lecture at Washington University. Jewish Law From Out of the Depths: Tragic Choices in the Holocaust, 10 Washington University Global Studies Law Review 133-142 (2011).

Recent Prisoner Free Exercise Cases

In Burnett v. Hall, 2011 U.S. Dist. LEXIS 107884 (MD TN, Sept. 22, 2011), a Tennessee federal magistrate judge recommended dismissing a claim that a county jail failed to provide Muslim religious services.

In Rodgers v. Shearidin, 2011 U.S. Dist. LEXIS 108406 (D MD, Sept. 22, 2011), a Maryland federal district court rejected a Sunni Muslim inmate's claim that his rights under the 1st Amendment and RLUIPA were violated when he was not permitted to attend communal worship while in administrative segregation.

In Davis v. Powell, 2011 U.S. Dist. LEXIS 104537 (SD CA, Sept. 15, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 108053, Aug. 8, 2011) and dismissed with leave to amend complaints of a Muslim inmate regarding a prison ban on flammable prayer oil and rules that required him to choose between receiving a quarterly package of either food or prayer oil.

In Porter v. Wegman, 2011 U.S. Dist. LEXIS 109205 (ED CA, Sept. 23, 2011), a California allowed an inmate who is a member of the House of Yahweh religion to proceed with his claim that he should be permitted to obtain kosher meals and celebrate Yahweh's Passover and Feast of Unleavened Bread.

In Prall v. Bocchini, 2011 U.S. Dist. LEXIS 108902 (D NJ, Sept. 23, 2011), a New Jersey federal district court, while dismissing most of plaintiff's claims, permitted plaintiff ( a member of Nation of Gods and Earth) to move ahead with a RLUIPA claim if he amends his complaint to name proper defendants. Plaintiff alleges that his beliefs prevent him from cooperating with the state criminal justice process, including compliance with state prison rules and regulations. He says he is being forced to renounce his religious beliefs if he wants to participate in work, rehabilitative and educational programs that will shorten his time in the Management Control Unit.

In Smith v. Wright, 2011 U.S. Dist. LEXIS 109069 (ND NY, Sept. 23, 2011), a New York federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 109058, Aug. 31, 2011) and dismissed a claim by a Rastafarian inmate that his rights were violated when he was kept in segregated housing for 7 months because of his religious-based refusal to submit to a PPD test for tuberculosis.

In Guillory v. Tilton, 2011 U.S. Dist. LEXIS 110089 (ED CA, Sept. 27, 2011), a California federal district court rejected an inmate's claim that his free exercise rights were infringed when a corrections officer removed uneaten food from his cell during Ramadan. Plaintiff had not applied through the chaplain for special permission to keep food in his cell.

In Florer v. Blakemaan, 2011 U.S. Dist. LEXIS 110044 (WD WA, Sept. 27, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 110047, May 31, 2011) and dismissed a Jewish inmate's complaint that in the Intensive Management Unit he was denied access to certain of his religious books that were not requested through the chaplain or other approved sources.

Hasidic Group Can Move Ahead On Equal Protection Challenge In Zoning Dispute

Mosdos Chofetz Chaim, Inc. v. Village of Wesley Hills, 2011 U.S. Dist. LEXIS 109649 (SD NY, Sept. 26, 2011), involves an amended complaint filed by an Orthodox Jewish group over attempts to prevent it from operating a religious education center in Ramapo, New York. In 2004, four villages and two Ramapo residents filed a lawsuit (the Chestnut Ridge action) challenging on environmental grounds Ramapo's zoning changes that were designed to accommodate the Orthodox and Hasidic communities. Plaintiffs sued claiming that the filing of the Chestnut Ridge action was in fact an attempt to use intimidation to prevent the spread of the Orthodox and Hasidic communities. In a 2010 decision, the court dismissed without prejudice, invoking the Noerr-Pennington doctrine. (See prior posting.) Now, reviewing plaintiffs'amended complaint, the court dismissed a number of claims but refused to dismiss plaintiffs' claim that they were targeted for unequal treatment because they are Hasidic Jews. Unlike the first complaint, plaintiffs now alleged sufficient facts, if proven, to show they were treated differently than others who were similarly situated.

Kazakhstan Parliament Passes New Restrictive Religion Law

AP and On Islam both report on the passage Thursday by Kazakhstan's Senate of a new more restrictive law on religious activities. The bill must now be signed by President Nazarbayev, but that seems to be a certainty.  The law, which has been criticized by OSCE and others (see prior posting), sets 50, 500 and 5000 members respectively for local, regional and national registration of a religious group. It requires government review of all religious literature and annual registration of foreign missionaries (who can be expelled if they pose a threat to public order). The law also bans prayer rooms in all public buildings. Backers of the bill see it as a way to combat Islamic extremism, but others say it will eliminate two-thirds of the 4500 religious groups that now operate in the country. It will also complicate operations for fairly large Protestant groups now established in Kazakstan.

Military Clears Way For Same-Sex Marriage Ceremonies

In the wake of the final repeal of the military's "Don't Ask, Don't Tell" policy, the Pentagon has issued two memos that clear the way for same-sex marriages to be performed on military bases by military chaplains in states where such marriages are legal.  As reported last week by the Washington Blade, a Sept. 21 memo (full text) from DOD's General Counsel says that: "Determinations regarding the use of DoD real property and facilities for private functions, including religious and other ceremonies, should be made on a sexual-orientation neutral basis, provided such use is not prohibited by applicable state and local laws." It adds that making facilities available does not amount to DoD endorsement of the activities.

A second memo (full text) dated Sept. 30 from Under Secretary of Defense Clifford Stanley says that military chaplains "may participate in or officiate any private ceremony, whether on or off a military installation" so long as it is not prohibited by state or local law. However a chaplain is not required to do so if it "would be in variance with the tenets of his or her religion or personal beliefs."

New Saudi Textbook Reflects Islamic vs. Westernizing Tensions

According to yesterday's Jerusalem Post, Saudi Arabia's Education Ministry has published a new high school textbook titled Hadith which is strongly critical of Westernizing influences that are absorbed by Saudi students who study abroad. This attempt to interject criticism of the United Nations Human Rights agenda into sayings of the Prophet Muhammad comes at the same time that Saudi Arabia's Ministry of Higher Education is encouraging Saudi students to study abroad through the King Abdullah Foreign Scholarship Program. The problem reflects a struggle within Saudi Arabia's Education Ministry between top-level officials who hold degrees from U.S. and British universities, and their staffs who are often educated in Islamic studies from Saudi universities.

Controversy Over Air Force Academy Distribution of Memo On Religious Neutrality

As previously reported, last month Air Force Chief of Staff Gen Norton Schwartz issued a memo cautioning commanders not to use their positions to promote their personal religious beliefs to their subordinates, or to extend preferential treatment to any religion.  Now Military Religious Freedom Foundation (MMRF) researcher Chris Rodda writes that at the Air Force Academy in Colorado Springs, the memo was not distributed beyond a small group of officers until MRFF used a large billboard at a busy Colorado Springs intersection to display the full text of Gen Schwartz' memo. The Air Force Academy denies that the distribution date was connected to the billboard. God and Country blog, a critic of MMRF, says that MMRF head Michael Weinstein does not understand normal chain of command operations.

Today Is Pulpit Freedom Sunday

Today is Alliance Defense Fund's annual Pulpit Freedom Sunday, devoted to overturning provisions of the Internal Revenue Code that bar non-profit organizations (including churches) from endorsing or opposing candidates for any political office. An FAQ document explaining the initiative says that participating pastors today will preach a sermon "discussing the intersection of the political realm with scriptural Truth." ADF promises to represent, free of charge, churches or pastors under investigation by the IRS as a result. Friday's New York Times, reporting on this year's plans, says that participating ministers plan to send tapes of their sermons to the IRS, inviting a challenge. None of the churches which sent tapes in past years have been pursued by the IRS. ADF traces the history of the ban on political involvement to a 1954 Internal Revenue Code amendment pushed by then-Senator Lyndon Johnson to keep two Texas non-profits from supporting his opponent.

9th Circuit: DADT Challenge Is Now Moot

Now that Congress' repeal of the military's "Don't Ask, Don't Tell" policy has been fully implemented (see prior posting), the U.S. 9th Circuit Court of Appeals has dismissed as moot the challenge to the constitutionality of DADT.  Log Cabin Republicans v. United States, (9th Cir., Sept. 29, 2011), vacated the district court judgment that had enjoined enforcement of DADT, and remanded the case for dismissal so that the now-unappealable district court decision will have no precedential effect.  Judge O'Scannlain concurred, discussing the merits of the claim at length even though he agreed that the case was now moot. He concluded that DADT was constitutional because Congress had a rational basis for enacting it, and policies regarding military personnel decisions are not subject to a higher level of scrutiny.

"See You At the Pole" Generates Minimal Controversy This Year

This past Wednesday was the annual "See You At the Pole" event-- during which students around the country (and even in some other countries) join around the school flag pole prior to school  for a short prayer service.  This year the event generated little controversy.  Apparently the most heated issues were raised at an elementary school in Lebanon County, Pennsylvania where, according to the Harrisburg (PA) Patriot-News, the event was held at 8:40, ten minutes before school started. However the flyers that were sent out indicated an 8:50 starting time-- coinciding with the beginning of school. The flyer also contained an "opt-out" form for students who were not going to participate. But apparently the letter went out without the superintendent's approval. Also pickets from the American Atheists carried protest signs at the event, including one which read: "Don's pray in my school! I won't think in your church." In some years, publicity surrounding the event has led to litigation. (See prior posting.)

Reported Apostasy Sentence For Iranian Pastor Draws International Protests

The International Business Times yesterday compiles statements from government leaders around the world, including the White House, protesting the death sentence that was reportedly imposed by Iran on Christian pastor Youcef Nadarkhani for apostasy-- converting from Islam to Christianity.  Nadarkhani who is pastor in a house church that is part of the Church of Iran network, has refused to recant his conversion. Worthy News earlier this week, recounted the history of  the case:

His arrest is believed to have been due to his questioning of the Muslim monopoly on the religious instruction of children in Iran, rights activists say.... He was initially charged with protesting, but charges against him were later changed to "apostasy" and "evangelizing Muslims" which carry the death sentence. Nadarkhani was tried and found guilty of "apostasy", or abandoning Islam, in September 2010 and sentenced to death by the court in the city of Rasht. In June this year the Supreme Court of Iran upheld Pastor Youcef Nadarkhani’s death sentence, but asked the lower court in Rasht, which issued the initial sentence, to "re-examine" whether or not he had been a practicing Muslim adult prior to converting to Christianity. The written verdict of the Supreme Court’s decision included provision for annulment of the death sentence if Pastor Nadarkhani recanted his faith, trial observers said.

CNN reported yesterday however that Nadarkhani's lawyer, Mohammadali Dadkhah, says the case is still in progress and there is a 95% chance that the pastor will not receive the death sentence. But to confuse the situation even more, the Fars News Agency apparently reported yesterday that Nadarkhani is being charged not with apostasy, but with rape and extortion. (See prior related posting.)

President Sends Rosh Hashanah Greetings

Yesterday, President Obama videotaped holiday greetings (full text) to those celebrating the Jewish holiday of Rosh Hashanah. The New Year holiday, beginning the ten day period culminating in Yom Kippur, commences tonight.  In addition to greetings for "a sweet year full of health, happiness, and peace," the President used his statement as an occasion to reaffirm U.S. commitment to the state of Israel.

En Banc 5th Circuit: Student-to-Student Religious Speech In School Protected By 1st Amendment

Yesterday, in a complicated series of eight opinions from 16 judges spanning 100 pages, a majority of the U.S. 5th Circuit Court of Appeals, sitting en banc, held that Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature because the law was not clearly established.  A separate majority of the court held that the principals' actions were unconstitutional.  In Morgan v. Swanson, (5th Cir., Sept. 27, 2011), Judge Elrod wrote for the majority on the issue of constitutionality.  She said:

In short, whatever latitude school officials may have with respect to school-sponsored speech under Hazelwood, or with government-endorsed speech under the Establishment Clause—that is, speech that could be erroneously attributed to the school—outside of that narrow context, viewpoint discrimination against private, student-to-student, non-disruptive speech is forbidden by the First Amendment.....

[W]hat one child says to another child is within the protection of the First Amendment unless one of the narrow exceptions discussed above applies, and none does in this case. Accordingly, we hold that the First Amendment protects all students from viewpoint discrimination against private, non-disruptive, student-to-student speech.

Education Week reports on the decision.

Court Allows Religious Leaflets At Salmon Days Festival

In Ascherl v. City of Issaqua, (WD WA, Sept. 21, 2011), a Washington federal district court granted a preliminary injunction permitting plaintiff to distribute religious literature at the Salmon Days Festival held in Issaqua, Washington to celebrate the return of the salmon and promote the city to visitors. The court decclared unconstitutional a city ordinance that limited leafleting and protests to designated "expression areas" in the part of the city where the Festival was held. The court concluded that the city ordinance is not "narrowly tailored", pointing out that: "the City allows for much more congestive activities than leafleting during the Salmon Days Festival, which undermines the credibility of its professed interest in minimizing congestion and ensuring public safety." Courthouse News Service reports on the decision.

Vanderbilt At Odds With 5 Student Religious Groups Over Nondiscrimination Policy

Vanderbilt University is the latest school to face clashes between its nondiscrimination policy for recognized student groups and the membership criteria of student religious organizations. The Tennessean reported yesterday that the university has placed a dozen or so student groups, including 5 religious groups, on provisional status, asking them to come into compliance with the university's policy that bars discrimination based on sexual orientation, gender identity or gender expression. The Christian Legal Society says that the University also wants it to rewrite its policy that requires the group's president to lead Bible studies, because that would require officers to hold certain beliefs. Vanderbilt, a private school, has more leeway that public universities in regulating student groups.  The controversy has gotten contentious.  Stephen Siao, president of the Vanderbilt's Republican group says the school has launched an attack on religious groups to distance itself from its past reputation as a "Southern, white, rich and religious" enclave.

Meanwhile yesterday the University posted a statement on its website saying that only 8 student groups-- 5 of which are religious-- are not in compliance with the university's nondiscrimination policy.  It says that it iscommitted to finding a solution, but added: "Student groups that wish to practice their faith are welcome at Vanderbilt; however, it is incumbent upon them to decide whether they wish to become registered student organizations at the university."

Cantor-Synagogue Settle Dispute Over Non-Compete Clause In Time For High Holidays

The Palm Beach Post reported yesterday that Jupiter, Florida's Temple Beth Am and its former cantor, the Grammy-nominated Bruce Benson, have settled a lawsuit in which the Temple claimed that Benson was violating a non-compete clause in his contract. The Palm Beach Sun Sentinel reported Monday on a lawsuit.  Benson is planning to conduct high holiday services beginning tonight in a rented high school auditorium on behalf of his recently-formed Institute for Jewish Living. The Institute is aimed at attracting some of the many Jews in the area who are not affiliated with a synagogue.  Tickets for Benson's services are $136, while Temple Beth Am charges non-members $225 to attend high holiday services. A spokesman for Beth Am says that the High Holidays are an important way for the synagogue to raise funds and attract new members, and that Benson's services will siphon people away from Beth Am.

Benson's non-compete clause bars him from working at another synagogue in Palm Beach or Martin counties for 18 months after leaving Beth Am, and prohibits his attempting to attract members or employees from Beth Am. Benson says his Institute for Jewish Living is not a synagogue, and so he is not in violation. Benson's lawyer argues that civil courts cannot define what is or is not a synagogue.  Under the terms of the settlement agreement, Benson will not promote his services in northern Palm Beach County, from which Beth Am attracts most of its members. He is free to promote them in West Palm Beach or Boca Raton.