Turkish Court Upholds Alevis' Right To Create Houses of Worship

Today's Zaman on Wednesday reported on a trial court decision in Turkey that vindicates the right of Alevis to maintain their own houses of worship (cemevi). In 2004, Turkey's Religious Affairs Directorate took the position that "it is not possible to consider cemevis and other [such] places as places of worship because Alevism, which is a sub-group of Islam, cannot have a place of worship other than mosques or mescit that are common places of worship within Islam." Relying on this, the Interior Ministry asked the Çankaya Cemevi Building Association to remove references to cemevis as places of worship from its bylaws. The Association refused and the Ankara Prosecutor's Office moved to shut down the Association. The Ankara 16th Court of First Instance rejected the government's petition, writing:

Alevi cemevis or cem houses have been socially known and accepted as places of worship for centuries. The provision that cemevis are places of worship, which was included in the association’s bylaws, is not in conflict with Article 2 of the Turkish Constitution and there is not a law that prohibits this in the Turkish Constitution.

French Satirical Paper Fire Bombed Over Treatment of Islamic Law

The Los Angeles Times reports that in France yesterday, the Paris headquarters of the satirical newspaper Charlie Hebdo was fire bombed as a special edition of the French paper satirizing Islamic law in Libya and Tunisia was about to hit the newstands. According to the Daily Beast, which carries a photo of the cover of the special issue, Charlie Hebdo's website was also hacked. Muslim groups in France condemned the fire bombing, but also expressed disapproval of the depictions in the satirical issue.

Clergy Sexual Assault Provision Upheld Against Constitutional Challenge

In Smith v. Thaler, 2011 U.S. Dist. LEXIS 125869 (ND TX, Sept. 7, 2011), a Texas federal magistrate judge rejected overbreadth, vagueness and Establishment Clause challenges to a provision (TX Penal Code Sec. 22.011(b)(10)) in the Texas sexual assault statute. The challenged section provides that a sexual assault is without the consent of the other person if "the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser." A federal district judge subsequently accepted the magistrate's findings denying habeas corpus relief, and also denied a certificate of appealability. (2011 U.S. Dist. LEXIS 121962, Oct. 20, 2011).

2012 Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced that it will host the 6th Annual National Religious Freedom Moot Court Competition on Feb. 11-12.  The competition is open to teams from law schools around the country. According to GW Law Professor Ira Lupu, this year's problem involves the interpretation and constitutionality of the religious performance exception in the Copyright Act of 1976 (17 USC Sec. 110(3).) Registration deadline for teams is Nov. 7.

Establishment Clause Challenge To Women's Studies Program Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, 2011 U.S. Dist. LEXIS 125593 (SD NY, Oct. 31, 2011), a New York federal district court adopted a magistrate's recommendations and dismissed on collateral estoppel grounds an Establishment Clause lawsuit by an alumnus of Columbia University. Plaintiff challenged provision of public funds to Columbia, arguing that the University's Women's Studies program unconstitutionally promotes a religion of feminism. In previous litigation, the same claim had been dismissed on standing grounds. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 126375, July 1, 2011.

IRS Changes Preserve Social Security Conscience Exemption For LLCs

Yesterday the Internal Revenue Service published T.D. 9554 in the Federal Register. As explained by the Journal of Accountancy, the release amends federal tax regulations under Sec. 3127 of the Internal Revenue Code. That section provides an exemption from Social Security taxes where both the employer and employee are members of a religious sect that opposes participation in Social Security. However, changes in regulations in 2009 created a problem where the employer was not an individual, but instead a so-called "disregarded entity"-- primarily a limited liability company (LLC) wholly owned by one individual. The 2009 changes treated the LLC as the employer-- and the LLC as an artificial business entity, of course, has no religious beliefs. The changes made yesterday assure that the exemption will continue to be available where the sole owner of the LLC is an individual whose religious faith opposes participation in Social Security.

House Reaffirms "In God We Trust" As National Motto

Yesterday, by a vote of 396- 9 (with 2 members voting "present"), the U.S. House of Representatives passed H Con Res 13, reaffirming "In God We Trust" as the national motto and encouraging its display in public buildings. Christian Post outlines the background events leading to the resolution. Americans United criticizes the House for spending time on the resolution.

House Hearing Today On Health Law and Conscience Rights

The Health Subcommittee of the House Energy and Commerce Committee will hold a hearing today on "Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" The advance written testimony of the 5 witnesses is available online from the Committee's website. Testfying will be representatives of the Alliance of Catholic Health Care; Christian Medical Association; Archdiocese of Washington, D.C.; Catholics for Choice; and Washington Hospital Center. Life News reports on the scheduled hearing.

Catholic Group May Sue Over Loss of Grant For Serving Trafficking Victims

The Washington Post reported Monday that the U.S. Conference of Catholic Bishops may sue the Department of Health and Human Services over the its refusal to renew a grant to the USCCB for it to provide services for victims of human trafficking. Instead the grant money will be shared by 3 other non-profit groups.  Apparently career staff at HHS's Office of Migration and Refugee Services recommended that the grant which USCCB has held since 2006 be awarded to it again, on the basis of scores assigned by an independent review board. However senior political appointees reportedly overruled them because USCCB will not refer victims of trafficking for contraceptive or abortion services.  The Catholic group did allow subcontractors to refer women for these services, but would not reimburse the subcontractors with federal grant funds. The ACLU sued over USCCB's practices in 2009. USCCB Media Blog earlier this month accused HHS of having an "ABC Rule", i.e. "Anybody But Catholics."

Court Upholds School's Ban of Anti-Islam T-Shirts

In a decision that has just become available, Sapp v. School Board of Alachua County, Florida, (ND FL, Sept. 30, 2011), a Florida federal district court upheld against free expression challenges a school's dress codes that were applied to send students home for wearing T-shirts carrying the slogan "Islam is of the Devil."  The children who wore the T-shirts came from two families that were members of the Dove World Outreach Center. The Center had gained notoriety for promoting a "Burn a Quran Day." (See prior posting.)  At issue in the new decision were two separate versions of a dress code, in effect in successive school years. (See prior related posting.)  [Thanks to Volokh Conspiracy for the lead.]

Parents Get 75 Months In Faith Healing Death of Infant

In Calckamas County, Oregon yesterday, a trial court judge sentenced Dale and Shannon Hickman to 75 months in prison in the death of their infant son, David, who was born prematurely and lived less than 9 hours.  The couple also received 3 years' probation. As reported by the Oregonian and Courthouse News Service yesterday, the Hickmans' who are members of the Followers of Christ Church, failed to seek medical assistance for their infant and instead merely prayed for him and anointed him with olive oil in compliance with their church's teachings.  The Hickmans are the fourth Followers of Christ couple to stand trial in the last 3 years for failing to seek medical care for their children. The sentence was the minimum mandatory sentence under the state's sentencing guidelines. The judge refused to invoke a now-repealed religious exception that could have allowed him to impose less than the mandatory minimum imprisonment, saying the case did not qualify for the  exemption. The Hickman's attorney had sought merely probation, saying that the couple had already taken their two remaining children to a pediatrician, and would comply with court orders regarding medical care for them.

School Attorney Says Weekly Flag Pole Prayer Violates Establishment Clause

According to yesterday's Jacksonville Times-Union, in Clay County, Florida, the attorney for the county school board last week sent the board a Legal Memorandum (full text) concluding that weekly "Prayer Around the Flag Pole" activities involve an endorsement of religion that violates the Establishment Clause. The prayers are led and organized by a local Baptist minister and take place at 8:15 each Monday morning-- nearly an hour after teachers' work time has begun. Teachers, staff and students participate, and the school has promoted the ceremonies in a newsletter to staff and administrators. The attorney's memo says that the minister and others could use school grounds for prayer, so long as they leave before the time teachers report for work.

Cert. Denied In Utah Highway Patrol Memorial Cross Cases, Over Thomas Dissent

Today the U.S. Supreme Court denied certiorari in Utah Highway Patrol Association v. American Atheists, Inc,. (Docket No. 10-1276), and a companion case Davenport v. American Atheists, Inc., (Docket No. 10-1267) (cert. denied 10/31/2011).  Justice Thomas wrote a 19-page dissent to the denial of cert. (Full text of order and Thomas, J's dissent at pg. 38 of Order List). In the case, a 3-judge panel of the 10th Circuit held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. (See prior posting.)  The full 10th Circuit denied en banc review by a 5-4 vote. (See prior posting.) In his dissent to the denial of cert., Justice Thomas wrote:

Today the Court rejects an opportunity to provide clarity to an Establishment Clause jurisprudence in shambles..... Because our jurisprudence has confounded the lower courts and rendered the constitutionality of displays of religious imagery on government property anyone’s guess, I would grant certiorari.....

Even if the Court does not share my view that the Establishment Clause restrains only the Federal Government, and that, even if incorporated, the Clause only prohibits “‘actual legal coercion,’” ..., the Court should be deeply troubled by what its Establishment Clause jurisprudence has wrought.

Israeli Court Dismisses Indictment Against Priest In Encounter With Yeshiva Student

Today's Jerusalem Post reports that an Israeli Magistrate's Court last week dismissed an indictment against a Greek Orthodox priest who punched a Jewish yeshiva student in the face after the student spat on the ground toward the priest as he passed. The incident took place in Jerusalem's Armenian Quarter. The Jerusalem Magistrate's Court invoked a provision calling for dismissal of an indictment if it "contravenes the essence of the principles of justice and fairness."  Judge Dov Pollock in his ruling said that the dismissal came after evidence that for years police have not acted to stop daily incidents of members of the ultra-Orthodox community spitting at members of the Christian clergy. The spitting is a criminal offense, and the court said it is intolerable that a Christian should be demeaned because of his faith.

Recent Articles of Interest

From SSRN:

• Avishalom Westreich, The Wife's Right to Divorce in Jewish Law: History, Dogmatics and Hermeneutics, (Journal of Jewish Studies, Vol. 62, pp. 340-63, 2011).
• Habib Siddiqui, Muslim Identity and Demography in the Arakan State of Burma, (October 26, 2011).
• Nora El-Bialy and Moamen Gouda, Enforcing IPR Through Informal Institutions: The Possible Role of Religion in Fighting Software Piracy, (May 9, 2011).
• Grainne De Burca, The Trajectories of European and American Antidiscrimination Law, (American Journal of Comparative Law, Forthcoming).
• Brian H. O'Beirne, The Explanatory Gap in John Finnis' Theory of Natural Law, (Trinity College Law Review, Vol. 14, 2010).

Monument To Jewish Chaplains Dedicated At Arlington National Cemetery

The Washington Post reports on last week's dedication at Arlington National Cemetery of a monument to 14 Jewish military chaplains who died while serving in the U.S. military. The monument was placed on Chaplains' Hill where monuments for Catholic and Protestant chaplains already stand. The cost of the new monument was funded privately. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Servicemembers Sue To Challenge DOMA and Obtain Equal Spousal Benefits

The Servicemembers Legal Defense Network announced last week that it had filed a federal lawsuit on behalf of a number of plaintiffs seeking the same benefits for same-sex spouses of current and former service members as is provided to opposite-sex spouses.  The complaint (full text) in McLaughlin v. United States, (D MA, filed 10/27/2011), asks the court to rule that the Defense of Marriage Act is unconstitutional as applied to military spousal benefits, and that the definition of "spouse" in federal statutes relating to military benefits is likewise unconstitutional. The complaint invokes the equal protection clause,the 10th Amendment's  principles of federalism, the fundamental right to marry, and the bill of attainder clause. Thursday's Christian Post reported on the case. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases-- Summaries Are Back

Note to readers: Last week I experimented with a new format for my weekly review of prisoner free exercise cases-- a format that did not include a fact summary for the cases.  In response I received many more e-mails than I expected from readers who make significant use of the summaries. So I am re-instituting the summaries when the number of recent prisoner cases permit me to do so with a reasonable expenditure of time. Thanks to all who communicated with me.

In Ryidu-x v. Wolfe, 2011 U.S. Dist. LEXIS 123543 (D MD, Oct. 25, 2011), a Maryland federal district court permitted an inmate to move ahead with claims that he was improperly denied commissary, purchasing, and mail privileges, and access to records because of  his use of his legally recognized changed Islamic name.

In Hughes v. El Dorado Correctional Facility, 2011 U.S. Dist. LEXIS 124014 (D KS, Oct. 26, 2011), a Kansas federal district court concluded that an inmate's religious exercise was not substantially burdened when, on a single occasion, a corrections officer interrupted his praying to deliver his food tray.

In Lee v. Oktibbeha County Sheriff's Department, 2011 U.S. Dist. LEXIS 123705 (ND MS, Oct. 25, 2011), a Mississippi federal district court held that no free exercise violation was shown in a single instance in which a prison guard interfered with an inmate's ability to save food from one of his meals to eat in the evening after his fast ended.

In Birkes v. Mills, 2011 U.S. Dist. LEXIS 123742 (D OR, Oct. 25, 2011), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S.Dist. LEXIS 123949, Sept. 28, 2011) and dismissed an inmate's complaint that he was not permitted to receive a copy of "The White Man's Bible" that he had ordered through the mail. Among other things, the court found that plaintiff's  White supremacist "Creativity" beliefs do not qualify as a religion. Alternatively it found that his rights were not violated even if it is a religion.

In Warner v. Patterson, 2011 U.S. Dist. LEXIS 124367 (D UT, Oct. 27, 2011), an Odinist (or Asatru) inmate alleged that prison authorities failed to accommodate his religious practices in a number of ways.  The court dismissed all plaintiff's claims except for his claim that denial of fast-boxes was motivated by purposeful discrimination against the Asatru religion.

In Trimble v. Allen, 2011 U.S. Dist. LEXIS 124447 (MD AL, Oct. 26, 2011), an Alabama federal district court denied a preliminary injunction to plaintiff who was seeking to use tobacco in his religious ceremonies in prison.

In Versatile v. Johnson, 2011 U.S. Dist. LEXIS 124541 (ED VA, Oct. 26, 2011), a Virginia federal district court rejected an inmate's claim under RLUIPA that he was impeded in exercising his Nation of Gods and Earths (NGE) religion when prison officials banned NGE texts. It also rejected his complaints regarding processing of his request to have NGE recognized as a religion. Among other things, the court found that NGE is not a religion for purposes of RLUIPA.  UPDATE: The magistrate's recommendations in the case are at 2011 U.S. Dist. LEXIS 126336, June 22, 2011.

White House Responds To Popular Petitions From Its "We the People" Website

As previously reported, a number of the petitions posted on the "We the People" section of the White House website relate to issues of religion and government. The White House promised to respond to any petition that gained 5000 signatures in 30 days. Now responses have been posted to several petitions. Responding to the call to eliminate "under God" from the Pledge of Allegiance and "In God We Trust" from U.S. currency, the White House Director of faith-based partnerships, Joshua DuBois, said:

A sense of proportion should also guide those who police the boundaries between church and state. Not every mention of God in public is a breach to the wall of separation - context matters.

That's why President Obama supports the use of the words "under God' in our Pledge of Allegiance and "In God we Trust' on our currency. These phrases represent the important role religion plays in American public life, while we continue to recognize and protect the rights of secular Americans.

In another posting, the White House refused to comment on a petition calling for "an investigation into allegations of prosecutorial and judicial misconduct in the case of Sholom Rubashkin," the convicted Orthodox Jewish former vice president of the kosher meat processing firm, Agriprocesors, in Postville, Iowa.  The White House said that:

The Department [of Justice] ... has mechanisms in place to investigate allegations of prosecutorial misconduct, including through its Office of Professional Responsibility. With respect to judicial ethics matters, the Judicial Conduct and Disability Act of 1980 vests primary responsibility for investigating and adjudicating claims of judicial misconduct with the Judicial Branch.

[Thanks to Scott Mange for the lead.] 

State Statutory Finding of Reliance on God Survives Constitutional Attack

In Kentucky Office of Homeland Security v. Christerson, (KY App., Oct. 28, 2011), a Kentucky state appeals court, in a 2-1 decision, rejected Establishment Clause and state constitutional challenges to legislative findings enacted as part of Kentucky's 2002 Antiterrorism Act. The findings (Sec. 39A.285) recited that "the safety and security of the Commonwealth cannot be achieved apart from reliance on Almighty God as set forth in public speeches and proclamations of American Presidents...." A 2006 law (Sec. 39G.010) called upon the state Department of Homeland Security to include in agency training and educational materials the language regarding reliance on God.  The majority held:

The Kentucky legislature has not attempted to compel belief or participation in any form of religious exercise, nor does it seek to prefer one belief over another. A simple reference to a generic “God” acknowledges religion in a general way....

The legislation ... does not seek to advance religion, nor does it have the effect of advancing religion, but instead seeks to recognize the historical reliance on God for protection.

Judge Shake dissenting argued that the challenged statutes

go beyond merely acknowledging the historical role of religion and instead require dependence upon Almighty God to secure the Commonwealth’s safety.

Yesterday's Louisville Courier Journal reports on the decision. (See prior related posting.)