9th Circuit Denies En Banc Review of Mt. Soledad Case, Over Dissents

Last January, the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. (See prior posting.)  On Friday, the 9th Circuit refused to rehear the case and also refused an en banc rehearing. However 5 judges, in an opinion written by Judge Bey, dissented from the denial of an en banc rehearing. In Jewish War Veterans v. City of San Diego, (9th Cir., Oct. 14, 2011), Judge Bey wrote in part:

History is important, in part because things change over time. The Spanish government of the day endorsed the Inquisition until the early years of the 19th Century. Would a reasonable observer therefore consider the edicts of King Ferdinand VII in determining whether today's Socialist government endorses the Inquisition? Of course not. 

The panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general....

The principal defect of the panel's decision is its concentration on facts which occurred between 1913 and 2006. The City of San Diego is no longer the owner of the property. The federal government now owns the property. Thus, the use to which the City of San Diego put the Mt. Soledad Cross from 1954 to 2006, just as the use to which the private group put the Cross from 1913 to 1954, is not relevant as to whether the present use by the government—the precise use which plaintiffs seek to enjoin—constitutes an endorsement of religion.

Article Details Romney's Role As Mormon Church Lay Leader

Today's New York Times carries a lengthy front-page article on presidential candidate Mitt Romney's active role as a lay leader in the Mormon church.  Here is an excerpt:

First as bishop of his own congregation, and later as Boston “stake president,” overseeing a region akin to a Roman Catholic diocese, he operated as clergyman, organization man and defender of the faith, guiding the church through a tumultuous period of rapid growth.

He confronted anti-Mormon sentiment and management challenges, supervising youth programs, the church’s social welfare system, missionary training and outreach to Hispanic, Portuguese and Southeast Asian converts, including Cambodian and Laotian refugees whose teenagers were joining the church in droves.

Later, when his official duties were complete, he contributed handsomely to the construction of the grand — and controversial — Boston Temple, high on a hilltop in Belmont, its steeple topped by a golden angel, just minutes from the Romney home. “Mitt’s Temple,” some local residents called it derisively. 

Some Mormons, like Mr. Clark, found Mr. Romney thoughtful and compassionate; one mother recalled his kindness to her dying son. Others, including a group of Mormon feminists demanding a greater role for women, found him condescending, doctrinaire or just plain bossy.

Sudan Leader Says Country Will Adopt Islamic Constitution

According to Reuters, in a speech last Wednesday Sudanese President Omar al-Bashir told students that Sudan will move ahead with its plans to adopt an Islamic constitution now that South Sudan with its largely non-Muslim population has gained independence.  Bashir said: "Ninety eight percent of the people are Muslims and the new constitution will reflect this. The official religion will be Islam and Islamic law the main source (of the constitution)."  The move carries out promises made last December by Bashir. (See prior posting.)

Egyptian Military Rulers Issue Anti-Discrimination Decree

AP reported yesterday that Egypt's transitional military government has issued a decree prohibiting all forms of discrimination, including religious discrimination. The move comes in the wake of the killing of 26 people in violence between the military and protesters objecting to the burning of a Coptic church. (See prior posting.) Violation of the anti-discrimination ban can lead to up to 3 months in prison and a fine of up to 100,000 Egyptian pounds (approx. $17.000).

Some Scientology Zoning Challenges Survive Motion To Dismiss

Church of Scientology of Georgia, Inc. v. City of Sandy Springs, 2011 U.S. Dist. LEXIS 116945 (ND GA, Sept. 30, 2011), involves "a zoning dispute over the Church of Scientology's desire to convert a 32,053 square foot office building into a roughly 44,000 square foot Church....  The City of Sandy Springs approved the use of the subject property for a church but limited the size of the building to the existing 32,053 square feet based on a lack of sufficient on-site parking." In a lengthy opinion, the court dismissed plaintiff's RLUIPA  discrimination, equal terms and exclusion claims, as well as its equal protection and due process allegations. However the court held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise.

Suit Dropped Challenging Faith-Based DC Homeless Shelter After Revised Arrangements

In a press release on Thursday, the ACLU and Americans United announced that they are dropping a lawsuit filed in 2008 (see prior posting) challenging a proposed D.C. arrangement with a religiously-sponsored homeless shelter:

The organizations filed the lawsuit ... after D.C. officials proposed giving the Central Union Mission approximately $7 million in cash, as well as a $9 million property called the Gales School, in exchange for property worth about $4 million.... At the time, the Mission required homeless men to attend Christian religious services as a condition of getting food and shelter....

[Under new arrangements] the Mission will lease the Gales School for $1 per year... and will rebuild and maintain the Gales School at its own expense. The lease prohibits the Mission from “requir[ing] any individual seeking [the Mission’s] services to participate in religious services or religious studies as a condition to receiving any service at the Leased Premises,” though the Mission will be allowed to use the Gales School for voluntary religious activities. The ACLU and Americans United will monitor the new developments to make sure the lease arrangement meets constitutional requirements.

School Board Settles Justice Department Suit On Refusal To Accommodate Hajj Trip

The Justice Department announced on Thursday that it has entered into a consent decree with the Berkeley, Illinois Board of Education in a Title VII religious discrimination lawsuit filed on behalf of Safoorah Khan, a Muslim middle school teacher who was denied an unpaid leave that she requested so she could perform the Hajj. (See prior posting.) The suit was the first growing out of a program of enhanced cooperation between the EEOC and Justice Department's Civil Rights Division. Under the consent decree, which must still be approved by the court, the school district will pay $75,000 to Khan for lost back pay, compensatory damages and attorneys’ fees, will develop a religious accommodation policy and will provide mandatory training on religious accommodation various personnel.

Bishop and Diocese Indicted For Delay In Reporting Sexual Offender To Authorities

The New York Times yesterday reported that a Missouri grand jury has indicted both Catholic bishop Robert W. Finn and the Diocese of Kansas City-St. Joseph on misdemeanor charges growing out of their delay in reporting evidence of a suspected sex-offender priest to authorities. Bishop Finn knew last December that a priest, Father Shawn Ratigan, might subject children to sexual abuse, discovering hundreds of pornographic photos of girls on the priest's laptop. However the photos were not turned over to police until May. During that time, Ratigan continued to attend church events at which children were present, and took lewd photos of another young girl.  This is the first time that a criminal indictment has been brought against a diocese and its leader in connection with actions of a priest in the diocese. If convicted, Finn faces a possible fine of $1000 and up to one year in jail, while the diocese faces a possible fine of up to $5000. In a statement on the diocese website, Bishop Finn denied criminal wrongdoing.

Annual Audit of Anti-Semitic Incidents In US Released

Last week, the Anti-Defamation League released its 2010 Audit of Anti-Semitic Incidents, detailing anti-Jewish assaults, harassment and vandalism in the U.S.  The study showed a 2.3% increase over 2009. Of the 1239 incidents reported in 2010, California accounted for 297 of them and New York for 205. Nationwide, over 70% of the incidents involved harassment. Less than 2% involved assaults.

Illinois County Imposes New Zoning Limits On Houses of Worship

According to yesterday's Chicago Tribune, the DuPage County (IL) Board has approved a zoning law amendment that will limit new houses of worship and other places of assembly in residential areas. Under the new rules, residential buildings used as places of assembly must have access on an arterial street and must use public sewer and water service, or else receive a variance from the county. The limitation came after 5 applications for new mosques in residential areas had come to the county board-- three of which have been approved.  Opponents of the change say that single-family homes have been the primary starting point for new religious congregations.

Group Asks IRS To Investigate Alleged Political Endorsement By Church

Americans United announced yesterday that it has sent a letter (full text) to the Internal Revenue Service asking it to investigate the First Baptist Church of Dallas (TX) for violating the tax code's ban on non-profits endorsing political candidates.  The church's pastor, Robert Jeffress, introduced candidate Rick Perry at the Value Voters Summit last week end. (See prior posting.) Jeffress then posted a video of the introduction and of his appearance on MSNBC on the church's website. AU says that Jeffress has not avoided church endorsement of Perry by merely placing a disclaimer on the video clips saying they do not constitute an endorsement by the church.

Israeli Civil Court Awards Large Damages To Wife Whose Husband Spurned Religious Court Order

YNet News reported yesterday on a decision by the Rishon Lezion Family Court in Israel awarding civil damages to a wife whose husband refused to comply with a rabbinical court order to give her a divorce document ("get").  The civil court awarded damages equivalent to $182,850 (US). Judge Esther Stein wrote: "refusal to divorce constitutes a violation of the values protected by the ‘Basic Law: Human Dignity and Freedom,’ which includes: freedom of choice, the right to self-fulfillment, the right to dignity and equal rights." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

2 Amish Men Fined For Refusing To Use Safety Emblem

In a Kentucky state court yesterday, two more members of the Old Order Schwartzentruber Amish community were convicted of refusing to use state-required orange colored safety emblems on their horse-drawn buggies. They have religious objections to the bright colors and to trusting man-made symbols for their safety. One defendant was ordered to pay fines and costs of $341; the other defendant was ordered to pay $173. Both men indicated they would refuse to pay. Judge Deborah Hawkins Crooks gave them until January 12 to comply, or else face jail. These two men and 6 others served 3 to 5 days in jail last month for refusal to pay similar fines. (See prior posting.)

Moroccan Imams Protest Government Regulation

AP reports that some 50 imams from mosques across Morocco demonstrated in Rabat yesterday, complaining about the tight controls the government imposes on them.  Imams are given government prepared sermons that they must deliver on Fridays, without deviation from the text. The imams want to deliver their own sermons, higher salaries and want to be consulted on religious matters.  Under Morocco's constitution, the king is the final arbiter of all religious matters. This is seen as a protection against Islamic extremism.

Egyptian Court Says Islamist Group's Party Can Field Candidates

Reuters reports that yesterday an Egyptian court overturned a decision of the parties committee and permitted the Islamist group al-Gam'aa al-Islamiyya's Construction and Development Party to run candidates in the upcoming parliamentary elections. The parties committee had rejected Construction and Development because the party wanted to introduce Islamic law and because one of its founders had been convicted of a criminal offense-- involvement in the 1981 assassination of President Anwar Sadat.  While Egyptian law bans parties based on religion, the court said that the Construction and Development Party does not restrict membership on the basis of religion and its founders included Muslims and non-Muslims.

Religious Comments of Sentencing Judge Do Not Justify Habeas Relief

In Deyton v. Keller, 2011 U.S. Dist. LEXIS 110631 (WD NC, Sept. 27, 2011), a North Carolina federal district court in a habeas corpus proceeding rejected claims that a state court judge's religious comments made during a sentencing hearing violated the due process rights of defendants who plead guilt to robbing a church. However the court issued a certificate of appealablity to the 4th Circuit.  In handing down a sentence of 53 to 71 years for each defendant, the state trial judge said in part:

Gentlemen, this is just something that can't be tolerated ... there are times when you have to kind of draw the line and you have to say that there are some things that just can't be tolerated by society. I mean you can't just go in a church armed and tie people or hold them at gunpoint, threaten to kill them and rob the collection plate and rob them while they are there in the worship service and expect that the law is not going to come down just about as strongly as it can on you. There is scripture that says "Vengeance is mine sayeth the Lord" but every now and then I think the judicial system has to contribute what it can.

Islamist Clashes In Tunisia

Reuters reports that in Tunisia yesterday police used teargas to disperse hundreds of Islamist demonstrators.  The demonstrators attacked police with stones, knives and batons as they protested a university's enforcement of a government ruling that bars enrolling women who wear the niqab. Earlier Islamists protested outside Nessma television, objecting to its broadcasting "Persepolis," the story of a woman growing up under strict religious rule in Iran. Demonstrators say the show denigrated Islam. The demonstrations come as the Oct. 23 elections for an assembly to draft a new constitution approach. Secularists are concerned that the Islamist Ennahda party is likely to receive the largest number of votes.

Recent Articles of Interest

From SSRN:

• Allison Anna Tait, Polygamy, Publicity, and Locality: The Place of the Public in Marriage Practice, (Michigan State Law Review, Vol. 2011, p. 171, 2011).
• Richard W. Garnett, Thomas Berg, Kimberlee Colby and Carl Esbeck, Religious Freedom, Church-State Separation, and the Ministerial Exception, (Northwestern University Law Review Colloquy, 2011).
• Bruce MacDougall and Donn Short, Religion-Based Claims for Impinging on Queer Citizenship, (Dalhousie Law Journal, Vol. 32, No. 2, pp. 133-160, Fall 2010).
• John D. Inazu, Stanley Hauerwas and the Law: is There Anything to Say?, (Law and Contemporary Problems, Forthcoming).
• Linda C. McClain and James E. Fleming, Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights, (Boston University Law Review, Vol. 91, p. 1311, 2011).
• Ruth Sarah Lee, Locking in Wedlock: Reconceptualizing Marriage Under a Property Model, (Faulkner Law Review, Forthcoming).

From SmartCILP:

• Katayoun Alidadi, Opening Doors to Muslim Minorities In the Workplace? From India's Employment Quota to EU and Belgian Anti-Discrimination Legislation, 23 Pace International Law Review 146-214 (2011).
• John Laws, Lord Justice of Appeal, England and Wales. Religion and Law, 62 South Carolina Law Review 471-484 (2011).
• Steph Sterling and Jessica L. Waters, Beyond Religious Refusals: The Case for Protecting Health Care Workers' Provision of Abortion Care, 34 Harvard Journal of Law & Gender 463-502 (2011).
• Karin Carmit Yefet. The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb, 34 Harvard Journal of Law & Gender 553-615 (2011).
• Symposium. Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought. Introduction by Kevin Lee; articles by John M. Breen, Bruce P. Frohnen, Barry Alan Shain, Michael Scaperlanda, John D. Inazu, C. Scott Pryor, Donald R. McConnell, Anthony V. Baker and Robert F. Cochran, Jr. 33 Campbell Law Review 501-694 (2011).

At Least 23 Killed In Protests Against Burning of Coptic Church In Egypt

CNN  reports that at least 23 people were killed today in Cairo, Egypt in clashes between the army and demonstrators protesting the Sept. 30 burning of a Coptic Christian church in a small village in Aswan. Daily News Egypt last week had more background on the burning of the church that Christians were renovating in the village of Marinab. A group of Muslims claimed that the renovations were illegal, saying that a license was issued only for a service center owned by a Copt. The New York Times says that today's protests turned into a broader call by many of the demonstrators for the resignation of the military’s top officer, Field Marshal Mohamed Hussein Tantawi.

Two Amish Men Under Arrest For Attacks on Other Amish

Fox News reports today that in Steubenville, Ohio, two Amish men remain under arrest on burglary and kidnapping charges, while a third was released because he had been mistaken for his brother.  According to an AP report last week, the men under arrest are part of a dissident Amish group, mostly related, who live in the Ohio town of Bergholz. They are charged with breaking into the homes of other Amish in Carroll, Holmes, Jefferson and Trumbull counties, cutting off their beards or hair-- something which is considered degrading to the victims. Police say the attacks are in retaliation for the ostracizing of bishop Sam Mullet, leader of the Bergholz clan, over allegations of sexual abuse after a disputed 2007 police raid. The two men in custody are Mullet's sons.