Equal Access For Bible Club Does Not Require School-Furnished Paid Adviser

In Youth Alive v. Hauppauge School District, 2011 U.S. Dist. LEXIS 113628 (ED NY, Sept. 30, 2011), an extracurricular student Bible club at a New York high school complained that its rights were being violated when the school insisted on its having a volunteer monitor instead of a paid staffer that is furnished to other groups to supervise its meetings.  The group contended that an unpaid adviser will cancel meetings at a greater rate than would a paid staff person.  A New York federal district court held that the federal Equal Access Act does not require the school district to provide a paid adviser.  The court also held that the refusal to provide a paid adviser does not substantially burden the group's free exercise of religion or infringe its free speech rights.  However it found that the parties' briefing leaves open a question of fact as to plaintiff's equal protection claim, as well as the claim for nominal damages from the group's treatment during its initial formation.

Muslim Scholars Criticize Female Shariah Magistrates In Kenya

On Islam reported yesterday that in Kenya, Muslim scholars are critical of a decision by Kenyan Chief Justice Willy Mutunga to create the position of female magistrate in the nation's Islamic courts.  There are 17 Kadhis courts in Kenya which deal with matters of personal status such as marriage, divorce and inheritance. Under Kenya's 2010 constitution, Kadhis courts are part of the government court system, subordinate to superior courts. Egypt, Tunisia, Sudan, and Turkey all have female Shariah court magistrates. (See prior related posting.)

Supreme Court Hears Oral Arguments In Hosanna-Tabor Case

The U.S. Supreme Court today heard oral arguments (full transcript) in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In the case, the 6th Circuit refused to apply the "ministerial exception" to a retaliation claim under the Americans With Disabilities Act brought by a parochial school teacher. Answering a question from Justice Ginsburg, Douglas Laycock, representing the school, argued for broad coverage of the ministerial exception doctrine, saying:

If she's commissioned as a minister and if that is not a sham, then we think that makes her a minister. If you have a Jesuit teaching physics, we think he is still a priest and he is still controlled by the ministerial exception....

JUSTICE GINSBURG: ... did I understand you before, in response to Justice Sotomayor and Justice Scalia, that even if she were merely a contract teacher, the fact that she teaches religion classes would be enough for her to qualify for the ministerial exception? 

 MR. LAYCOCK: Yes. And the fact that she's a commissioned minister is the clincher in this case.

Justice Scalia then probed the meaning of "commissioned minister:

JUSTICE SCALIA: And that term is a legal term. What constitutes a minister is -- is decided by the law, not by the church, right?

MR. LAYCOCK: That is correct.

The government, represented by Assistant to the Solicitor General Leondra Kruger urged the Court to take an approach that does not focus on the traditional "ministerial exception" tests:

MS. KRUGER: The contours -- the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here. And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.

... the government's interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes and who it may not. It is one thing and one thing only, which is to tell the school that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution.

The merits and amicus briefs in the case are available online. ScotusBlog has a summary of the arguments.The Los Angeles Times also reports on the oral arguments.

USCIRF Reauthorization Bill Still Pending [CORRECTED]

The U.S. Commission on International Religious Freedom was scheduled to go out of business last week.  22 USC Sec. 6436 originally provided that USCIRF "shall terminate on September 30, 2011." A reauthorization bill, HR 2867, passed the House on Sept. 15 and is now pending in the Senate. The reauthorization bill would reduce the number of Commission members from 9 to 5. However USCIRF was saved by provisions in two separate Continuing Appropriations Acts (HR2017 and HR2608). Both extended the life of USCIRF. HR 2017, signed by the President on Sept. 30, extended the Commission's life to Oct. 4.  HR2608, signed by the President on Oct. 5 extended USCIRF to Nov. 18. So USCIRF remains in business for now. An opinion piece in yesterday's Huffington Post by Suhag Shukla, Managing Director of the Hindu American Foundation, suggests that greater reform of USCIRF is needed.  She argues that the Commission's history causes it to focus disproportionately on persecution of Christian minorities. [Thanks to Don Byrd for the lead.]

School's Exclusion of Good News Club From Enrichment Program Upheld

In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, 2011 U.S. Dist. LEXIS 113380 (D MN, Sept. 30, 2011), a Minnesota federal district court refused to issue a preliminary injunction to require school officials to include the Good News Club in the school district's formal After-School Youth Enrichment Program that includes school publicity, busing and snacks for participants. Instead GNC was allowed to use school space as a Community Partner, but was denied other benefits furnished to groups in the program. The court said:

CEF has cited no cases in which a court found proselytizing and prayer proper content for school-sponsored speech. Here, the District has at most engaged in content discrimination, in keeping religious prayer and proselytizing from the limited designated public forum of the After-School Program, while at the same time providing after-school facilities to CEF as a community partner....

Although it is a close question, on balance the Court finds it likely that the organizations participating in the After-School Program engage in school-sponsored public speech. Such organizations are selected by the District for additional benefits separate from those of the larger group of CPs, the forms, flyers, and other information communicated to parents bear the logos and information of District employees, and the Site Coordinators exercise some control over the content of the After-School Program. Further, an objective observer, including the parents of After-School Program attendees, could reasonably believe that a religious program held on school grounds, for which they gave permission on a sheet including other school-sponsored activities, and which involves travel on a school bus, has the imprimatur and support of the school itself.

Canada Considers Creating Office of Religious Freedom In Foreign Affairs Ministry

Catholic Register reported that on Monday Canada's Foreign Affairs Minister John Baird, with 100 religious leaders present, opened formal consultations on creation by Canada of an Office of Religious Freedom. In his remarks (full text) Baird said in part:

This office will be created to promote and protect freedom of religion and belief, consistent with core Canadian values such as freedom, democracy, human rights and the rule of law. Most importantly, it will demonstrate that Canada truly is a free society.

CBC News has additional background.

Indian Court Says Temple Board Must Be Open To Lower Castes

In Thrissur, the cultural capital of the Indian state of Kerala, a court has ruled that membership in the governing board of the Thiruvambady temple cannot be limited to upper caste Hindus, but must be open to all castes.  The Pioneer reported today that the bylaws of the Thiruvambady Devaswom Board currently allow 1300 board members, limited to upper class Hindus from three specified areas.

Recent Prisoner Free Exercise Cases

In Deville v. Crowell, 2011 U.S. Dist. LEXIS 111107 (D KA, Sept. 28, 2011), a Kansas federal district court rejected claims by a federal inmate seeking group religious services reflecting his Creativity Prison Ministries (White Nationalist) beliefs, as well as his complaint that he was not receiving the Common Fare diet.

In Yassin v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 110393 (SD CA, Sept. 27, 2011), a California federal district court permitted a Muslim inmate to move ahead with his claim that refusal to provide him a halal diet violated his free exercise, equal protection and RFRA rights.

In Dean v. Hazewood, 2011 U.S. Dist. LEXIS 110890 (ED CA, Sept. 27, 2011), a California federal magistrate judge permitted a Muslim inmate to move forward with his claim that his free exercise and privacy rights were violated when he was subjected to an unclothed body search in front of a female correctional officer.

In Hopson v. TDCJ-CID, 2011 U.S. Dist. LEXIS 111387 (ED TX, Sept. 29, 2011), a Texas federal district court dismissed as moot an inmate's complaint that Native American prisoners are not permitted to gather for group worship, because now a contract chaplain has been hired. The court held that plaintiff had failed to exhaust his administrative remedies in connection with complaints about the lack of pipe ceremonies and oral teachings, smudging, access to non-desecrated religious prayer paraphernalia and honoring of Native American memorial days. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116466, Aug. 12, 2011.

In McKinley v. Maddox, 2011 U.S. Dist. LEXIS 111307 (WD OK, Sept. 28, 2011), an Oklahoma federal district court held that an inmate's free exercise rights were not substantially burdened by a temporary delay in approving his attending off-site church services. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116292, Aug. 8, 2011.

In Schuh v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 112540 (WD MI, Sept. 30, 2011), a Michigan federal district court rejected a defendant's complaint that his rights were violated when he was denied kosher meals until he showed that he had a sufficient and sincere understanding of the Jewish faith. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 115692, Feb. 11, 2011.

In McChesney v. Hogan, 2011 U.S. Dist. LEXIS 112525 (ND NY, Sept. 30, 2011), a New York federal district court permitted a civilly committed inmate who is an atheist to move ahead with his claims that his required sex offender treatment program is based in part on religious tenets in violation of the Establishment Clause and of his free exercise rights.

In Moore v. Cucchi, 2011 U.S. Dist. LEXIS 112582 (D NJ, Sept. 29, 2011), a New Jersey federal district court rejected a Buddhist inmate's free exercise and RLUIPA claims regarding problems with his vegetarian diet.

Court Approves Minnesota Department of Education Settlement In TiZA Suit

The ACLU of Minnesota announced Monday that a Minnesota federal district court has approved a Settlement Agreement (full text) with the Minnesota Department of Education in ACLU v. Tarek ibn Ziyad Academy. The lawsuit claims that TiZA, a publicly-funded Minnesota charter school violated the Establishment Clause by promoting Islam. (See prior posting.) Under the settlement, the court approved release of a 29-page Stipulation of Facts (full text) compiled by the ACLU, the Department of Education, and Islamic Relief USA (the charter school's former sponsor). The stipulation illustrates various incidents in which public funds or the school's operations appear to have furthered Islam or Muslim religious organizations.  Under the Settlement Agreement, the Department of Education also agreed that in the future it will require every charter schools to provide annual written assurances (full text of required assurances) that it is operating in a non-sectarian manner and provides equal treatment and equal access for all religions. (See prior related posting.)

EEOC Sues Over Firing of Jehovah's Witness Employee Who Would Not Raise Flags

Pacific News Center reports today that the U.S. Equal Employment Opportunity Commission has filed an employment discrimination lawsuit against Aviation Concepts, an aircraft retailer and service provider in Guam. The suit charges that the company refused to accommodate the religious beliefs of a Jehovah's Witness employee.  The employee, a mechanic, was fired after he refused an order from his manager to raise the U.S. and Guam flags at the work site. Raising the flags would violate the employee's religious beliefs. The company denied the charges.

Muslim Woman Sentenced For Contempt After Refusing To Rise In Courtroom

A 35-year old Muslim woman on trial in Minneapolis on charges of funneling money to a Somali terrorist group has been held in contempt of court for refusing on religious grounds to rise when the judge and jury entered the courtroom. AP reported  yesterday that defendant Amina Farah Ali was sentenced to 50 days in jail on the contempt charges, subject to purging of the charges if Ali changes her mind after conferring with Muslim religious authorities. Ali says she will not stand up for anyone except Allah.

UPDATE: Here is the full text of the judge's opinion in United States v. Ali, (D MN, Oct. 3, 2011), finding Ali in contempt. Volokh Conspiracy had additional analysis of the case.

California Bars Localities From Regulating Circumcision

As reported by yesterday's Christian Post, California Governor Jerry Brown last week signed
assembly Bill 768 (full text) which prohibits any city or county government in California from prohibiting or restricting male circumcision or a parent's authority to have a child circumcised. The legislation is a reaction to attempts earlier this year in San Francisco and Santa Monica to obtain voter approval for circumcision bans, including religious circumcision. (See prior related posting.)

Accused Pastor Seeks Return of Settlement Funds For Breach of Confidentiality Agreement

As previously reported, last May prominent Atlanta (GA) pastor Bishop Eddie Long, his LongFellows Youth Academy and his New Birth Missionary Baptist Church settled four civil lawsuits by men who alleged that Long used his spiritual authority to coerce young male members and employees of his mega-church into sexual relationships.  The settlement agreements contained confidentiality agreements.  Last month, nevertheless, in an interview with the Atlanta Journal Constitution, two of the four men spoke about their charges against Long.  Now, according to last Friday's Atlanta Journal Constitution, Long and his church are seeking return of at least $900,000 from 3 of the plaintiffs who settled on the ground that they violated terms of the confidentiality agreement that was part of the settlement.

Supreme Court Term Opens-- Red Mass And Cert. Denials

The U.S. Supreme Court's 2011-12 term opened yesterday with two traditions intact-- the Red Mass and denials of certiorari in hundreds of cases. Catholic Review reports that on Sunday, the 58th annual Red Mass to mark the opening of the Supreme Court's term was celebrated in Washington's Cathedral of St. Matthew the Apostle. The mass is sponsored by the John Carroll Society. Supreme Court justices attending the Mass were Chief Justice John Roberts and Associate Justices Antonin Scalia, Clarence Thomas, Stephen Breyer, Anthony Kennedy and Samuel Alito.

Among the cases of interest in which the Supreme Court denied certiorari yesterday (Order List) were:

• Jefferson County Board of School Commissioners v. Smith (No. 10-1402)-- the 6th Circuit en banc, in an 11-4 opinion, held that two plaintiff school teachers have standing as municipal taxpayers to bring an Establishment Clause challenge to the closing of the a Tennessee school district's alternative school and its outsourcing the services instead to a Christian private school. (See prior posting).
• Sherman v. Koch (No. 10-1191)-- In a 2-1 decision, the 7th Circuit upheld Illinois' Silent Reflection and Student Prayer Act against Establishment Clause and vagueness challenges. The refusal to review was reported on by Education Week. (See prior posting.)
• Orange County, Calif., v. Khatib, (No. 10-1505)-- the 9th Circuit, en banc, concluded that a courthouse holding facility is a "pretrial detention facility" that is covered by RLUIPA. Huffington Post reports on the denial of cert, (See prior posting).
• DeWeese v. ACLU, (No. 10-1512)-- the 6th Circuit held that a Ten Commandments display posted in a courtroom by a state common pleas court judge violates the Establishment Clause. AP reports on the denial of cert. (See prior posting.)
• St. Elizabeth's Child Care v. Pennsylvania Department of Public Welfare, (No. 10-1391)-- a Pennsylvania state appellate court rejected free exercise challenges by a Catholic child day-care center to the requirement that it obtain a state certificate of compliance in order to operate. (See prior posting.)
• San Leandro, CA v. International Church of the Foursquare Gospel, (No. 11-106)-- the 9th Circuit reversed the district court and held that a city's zoning decision made under a neutral, generally applicable zoning law can impose a "substantial burden" on a church's exercise of religion under RLUIPA. The San Francisco Chronicle reports on the Supreme Court's action. (See prior posting.)

UPDATE: The Supreme Court on Monday also denied certiorari in Spencer v. World Vision, Inc., (No. 10-1316)-- The 9th Circuit, in a 2-1 decision, held that the Christian humanitarian organization, World Vision, comes within the exemption in Title VII of the 1964 Civil Rights Act  for religious organizations. The Court's action is reported in Christianity Today. (See prior posting.) [Thanks to Ted Olsen for the lead.]

Muslims, Christians Criticize Two-Child Proposal In Indian State

In India, Muslims and Catholics are strongly criticizing the Women's Code Bill that is being proposed by the government in the state of Kerala. According to Sunday's On Islam, the bill would impose fines of up to $203(US) and jail terms of up to 3 months on parents who have more than two children. A third child will not be eligible for government services.  The bill also encourages free abortions at government facilities and access to free contraceptives.

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).