USCIRF Urges Clinton To Press Burma On Religious Freedom During Trip There

As reported by Voice of America, Secretary of State Hillary Rodham Clinton left yesterday for a trip to Asia that includes the first visit in over 50 years of a U.S. Secretary of State to Burma. (Background form State Dept.) The trip comes in response to progress in Burma on political reform and human rights issues. Also yesterday, the U.S. Commission on International Religious Freedom released a letter (full text) it sent to Clinton urging her to publicly raise concerns about religious freedom while in Burma, saying:

Religion drives serious human rights abuses in Burma, particularly against ethnic minorities and Buddhist monks who participated in peaceful protests in 2007. We believe improvements in religious freedom should be a critical benchmark for gauging the government of Burma’s commitment to genuine reform.

Burma has been listed by the State Department since 1999 as a "country of particular concern" because of its religious freedom violations. (See prior posting.)

Suit Challenging 10 Commandments In School May Proceed

The Roanoke Times reports that yesterday a Virginia federal district judge refused to dismiss a lawsuit challenging the posting of the Ten Commandments as part of a display in the Giles County, Virginia Public Schools. (See prior posting.) The court said there are too many unknown facts to dismiss the complaint in Doe 1 v. School Board of Giles County at this point. The court also gave the parties 14 days to work out a protective order to protect the identity of the two John Doe plaintiffs-- a student and the student's parent. (See prior posting.)

UPDATE: On Dec. 12, Judge Michael Urbanski signed a protective order to keep the plaintiffs in the case anonymous. According to the Roanoke Times, attorneys for the school board will learn the names of plaintiffs so they can determine issues such as whether the student has standing. However members of the school board will not learn the identity of plaintiffs. The order also bans any harassment, threats or intimidation of plaintiffs. [Thanks to Scott Mange for the lead.]

Security Company Settles Religious Accommodation Suit Brought By EEOC

The EEOC announced last week that the Philadelphia-based Imperial Security, Inc. has agreed to settle a lawsuit bought against it by the EEOC on behalf of a Muslim woman who was employed as a security guard, but was then told she could not wear her khimar (scarf that covers her head, neck and ears). The employee, Julie Holloway-Russell, objected and was fired. Under the settlement, Imperial Security will pay $50,000 in damages. It also agreed to a 3-year consent decree barring religious discrimination, setting up internal procedures to handle discrimination complaints, appointing an EEO officer, requiring employee training on Title VII and reporting to the EEOC on how complaints are handled.

Assistant Principal Sues Over Principal's Religious E-Mails

In Clay County, Florida, the assistant principal in a public school earlier this month filed a federal lawsuit against the school's principal and the Clay County School Board complaining about religious (as well as political) e-mails sent to faculty by the principal using the principal's school e-mail account. The complaint (full text) in Capriola v. Clay County School District, (MD FL, filed 11/18/2011), pointed to ten separate e-mails with religious or proselytizing messages.  The lawsuit seeks a declaratory judgment that the e-mails violated the free exercise and establishment clauses and seeks an injunction against further similar e-mails. The Jacksonville Times-Union reports on the case.

Recent Articles of Interest

From SSRN:

• Steven D. Jamar, Challenges Presented to Law and Public Norms by Claims of Freedom of Religion Arising in Increasingly Diverse Societies, (Journal of Law and Religion, Vol. 26, No. 595, 2011).
• W. Bradley Wendel, Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions, (Law and Contemporary Problems, Forthcoming).
• Michael J. Glennon, Pre-Empting Proliferation: International Law, Morality, and Nuclear Weapons, (European Journal of International Law, Forthcoming).
• Ajit Singh, Dictating Selective Tolerance or Silence in the Face of Ignorance: S.L. v. Commission Scolaire Des Chênes, (May 26, 2011).
• Sahar F. Aziz, Terror(izing) the Muslim Veil, (The Rule of Law and the Rule of God, Simeon Elsanmi, ed., University of Virginia Press, Spring 2012).
• Neo Joe Thomas, John Locke and Natural Rights in a State of Nature, (November 25, 2011).
• Vikram D. Amar and Alan E. Brownstein, Afterthoughts on Snyder v. Phelps, (Cardozo Law Review de novo, p. 43, 2011).

From SSRN-- Islamic Law:

• Munir Ahmad Mughal, Law of Sales in Islam, (November 19, 2011).
• Nor Fadzlina Nawi, Developing a Mandatory Family Mediation Program in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia, (Conference Booklet - Sydney University Postgraduate Law Conference, 2011).
• Ousama Abdulrahman Anam, Users of Corporate Reporting of Information: An Islamic Perspective, (January 1, 2011).
• Jean Allain, Acculturation Through the Middle Ages: The Islamic Law of Nations and its Place in the History of International Law, (October 10, 2011).
• Muhammad Akbar Khan, Consumer Protection and the Islamic Law of Contract, (Islamabad Law Review, Vol. 2, No. 2).
• Nor Fadzlina Nawi, Family Mediation in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia, (Conference Booklet - East Asian Law and Society Conference, 2011).

From SmartCILP and elsewhere:

• Daniel R. Suhr, The Religious Liberty of Judges, 20 William & Mary Bill of Rights Journal 179 (2011).
• Douglas Laycock, Government-Sponsored religious Displays: Transparent Rationalizations and Expedient Post-Modernism, 61 Case Western Reserve Law Review 1211-1252 (2011).

Christian Worker At Heathrow Sues Over Treatment By Muslim Co-Workers

The London Telegraph and London Mail yesterday both reported on a lawsuit brought by a saleswoman-- a Lebanese born Christian-- who worked at Britain's Heathrow Airport World Duty Free shop. She was fired after Muslim co-workers filed a complaint against her. They thought they heard her insult a Muslim co-worker by saying he was a member of the Alawi sect.  The woman, Nohad Halawi says that she called the co-worker "allawhi"-- "a man of God" in Arabic.  Halawi, says that far from insulting Muslims, she has been the victim, having been subjected to bullying by Muslim co-workers.  She says one employee brought a Qur'an to work and insisted she read it, and another handed out Islamic leaflets.  A Christian co-worker of hers was driven to tears after a Muslim bullied her for wearing a cross. Halawi says that there is a growing atmosphere of fear among Christian employees at Heathrow as the number of employees who embrace fundamentalist Islam grows. Halawi says: "This is supposed to be a Christian country, but the law seems to be on the side of the Muslims."  Halawi's situation is complicated by the fact that she works on a freelance basis, placed by a cosmetic staff agency.  Since she is not an employee of World Duty Free, the religious anti-discrimination protections in Britain's employment law do not apply to her. Meanwhile elsewhere at Heathrow, a Jewish businessman is threatening to sue because of his treatment by Muslim security staff at the airport. He says they have repeatedly singled him out for full body scans.

Church Sued For Not Reporting Abuse By Preacher

The Charleston (SC) Post and Courier reported last week that a lawsuit has been filed against the North Charleston (SC) Full Word Ministries on behalf of a plaintiff identified only as Joshua Doe, charging that a church official knew that its former pastor, Tyrone Moore, was sexually abusing plaintiff and failed to report it to authorities. In 2009, Moore (a charismatic preacher) was sentenced to 30 years in prison for molesting or assaulting 8 young boys at his home or in his church over a several year period. Twenty years earlier he had plead guilty to sexually abusing girls at his grandfather's church.

Moderate Islamists Win In Morocco; Promise No Religious State

As reported by Voice of America, the moderate Islamist Justice and Development Party (PJD) has apparently won the largest number of Parliamentary seats in Fridays elections in Morocco. Taking about one-fifth of the seats, it will be charged with forming a new government. The current prime minister's Istiqlal Party came in second and is ready to enter into coalition talks with the PJD. In an interview by Al Aribiya, Justice and Development Party leader Abdel Ilah Bin Kiran said that the party would not turn the country into a religious state:

[W]e are going to rule as a political and not a religious party. Religion belongs to mosques and we are not going to interfere in people’s personal lives..... If we want to fail we will impose the veil. We will not interfere in people’s choices and not one woman will be forced to wear the veil if we want to succeed.... The religious state has been gone a long time ago and will never come back.

Recent Prisoner Free Exercise Cases

In Neal v. Campbell, (9th Cir., Nov. 23, 2011), the 9th Circuit upheld a California district court's finding of qualified immunity based on the failure to show a substantial burden on the practice of religion in a case brought by an inmate who complained that he was placed in administrative segregation for becoming an "ameer" (a Muslim leader) at the prison. (See prior posting.)

In Kailey v. Zavaras, 2011 U.S. Dist. LEXIS 133277 (D CO, Nov. 17, 2011), a Colorado federal district court dismissed various free exercise (as well as a number of other) claims, partly on statute of limitations grounds and partly on the merits. Plaintiff claimed certain of his magazines had been destroyed, that he was prevented from obtaining emergency outreach community relief for his daughter, was strip searched after attending a Jewish service, was prevented from participating in a "Kairas" four-day weekend event as an "inside team member," and was prevented from attending Passover services.

In  Whitehouse v. Johnson, 2011 U.S. Dist. LEXIS 133822 (ED VA, Nov. 18, 2011), a Virginia federal district court dismissed a claim by by an inmate that his rights under RLUIPA and the 1st Amendment were infringed when a correctional center to which he was transferred interfered with his ability to complete his correspondence coursework from a Protestant theological seminary in which he was enrolled.

In Abel v. Martel, 2011 U.S. Dist. LEXIS 133713 (ED CA, Nov. 18, 2011), a California federal magistrate judge allowed an inmate to proceed with claims that he was not allow to purchase for personal use certain items used for Wiccan religious worship, but instead was limited under prison policy to using these for group worship. Plaintiff was also permitted to move ahead with a claim that various religious items were confiscated from his cell in retaliation for his filing a complaint. Plaintiff failed to exhaust his administrative remedies as to other claims.

In Ouahman v. Hillsborough County Department of Corrections, 2011 U.S. Dist. LEXIS 133751 (D NH, Nov. 16, 2011), a New Hampshire federal district court approved two separate magistrate's opinions (2011 U.S. Dist. LEXIS 133756, Aug. 29, 2011 and 2011 U.S. Dist. LEXIS 134060, Oct. 25, 2011) and permitted an inmate to proceed on RLUIPA and First Amendment claims that correctional officers denied him a prayer rug and a Qur'an, denied accommodations for observing Ramadan, and discriminatorily placed him in unnecessarily restrictive housing conditions.

In Runnels v. Banks, 2011 U.S. Dist. LEXIS 133892 (D MS, Nov. 18, 2011), a Mississippi federal magistrate judge permitted a Rastafarian inmate to move ahead with his claim for nominal and punitive damages for burdening his practice his religion while incarcerated. His claims for injunctive relief were found to be moot.

In Chance v. TDCJ, 2011 U.S. Dist. LEXIS 132664 (ED TX, Nov. 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 133972, Oct. 13, 2011) and denied a preliminary injunction to a Native American inmate who sought to have weekly religious ceremonies that include sacred pipe ceremonies and smudging and wished to carry a lock of his parents' hair in a pouch.

In Wakefield v. Indermill, 2011 U.S. Dist. LEXIS 134795 (ED CA, Nov. 21, 2011), a California federal magistrate judge recommended dismissing a Seventh Day Adventist inmate's complaints under the 1st Amendment and RLUIPA that the Protestant chaplain did not provide him with weekly Communion and foot washing.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 134869 (ED LA, Nov. 21, 2011), a Louisiana federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 134883, Oct. 17, 2011), and dismissed for failure to prosecute the case an inmate's claim that he was unable to practice his Santeria religion.

300 In Maldives Protest UN Human Rights Commissioner's Speech

AP reported that yesterday in the Maldives, 300 people demonstrated against UN High Commissioner for Human Rights Navi Pillay who had just concluded a visit to the country. The protesters, claiming that the United Nations is spreading anti-Islamic activities in the Maldives, objected to Pillay's speech before Parliament in which she said that the flogging of women found to have had sex outside marriage is "inhuman and degrading."  Protesters also criticized Maldives officials for allowing Pillay to speak in Parliament.

UPDATE: Minivan News (11/27) reports on additional criticism of Pillay by various political and religious leaders in the Maldives.

Court Quashes Rabbi's Subpoenas Seeking Identity Of Anonymous Bloggers

In 2008, a New York appeals court in Tendler v. Bais Knesses of New Hempstead, Inc.,  held that Rabbi Mordechai Tendler was entitled to recover damages against the synagogue that fired him in violation of a contract clause that provided he could not be terminated unless the action was authorized by a Rabbinical court. His synagogue's action came after several women alleged he had abused his position to have sex with them.  As outlined in a Memorandum of Law in the case, for several years, Tendler has been attempting to obtain the identities of four bloggers who have commented about the charges against him, claiming that the charges were false and in retaliation for his speaking out on feminist issues. Most recently Tendler has served subpoenas on the anonymous bloggers' counsel again seeking their identity arguing that this information is relevant to determination of damages by the trial court.  In a Nov. 16 decision in the case (full text), the court quashed the subpoenas. The court held that since Tendler had already prevailed on the issue of liability, to permit disclosure of non-parties who have a right to anonymous speech would "open the floodgates and set a precedent that this Court is unwilling to do." Public Citizen Consumer Law & Policy Blog last week reported on these developments.

Court Says It May Decide Pastor's Employment Dispute With Church

In Errgong-Weider v. United Congregational Church of Norwalk, 2011 Conn. Super. LEXIS 2765 (CT Super., Oct. 25, 2011), a Connecticut trial court refused to dismiss a lawsuit by a pastor against his church challenging the termination of his contract by a vote of members at a meeting. It held:

The issues raised by the plaintiff's complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded ...; and (3) whether barring him from attendance at the meeting ... violated his rights as a member of the defendant non-stock corporation.... [R]esolution of these issues would not require the court to intrude upon the defendant's exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert's Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach ..., the court may analyze the defendant's bylaws and constitution in resolving the dispute.

Restriction on Sex Offender Infringes Free Exercise Rights

In United States v. Lantz, (6th Cir., Nov. 22, 2011), the 6th Circuit vacated, in part on religious freedom grounds, one of the special terms of supervised release  imposed on defendant who plead guilty to distributing child pornography. The terms would take effect after the defendant completed a 15-year prison sentence.  At issue was the requirement that "Defendant shall neither possess nor have under his control any matter that is pornographic or that depicts or alludes to sexual activity..." The court concluded:

A restriction on material that "depicts . . . sexual activity" alone might not be overly broad. But one that bans mere allusion to sexual activity is certainly overly broad. Not only would such a ban prohibit the defendant from reading significant parts of the Old Testament—Proverbs 7, The Song of Solomon, and II Samuel 11 come immediately to mind—it would encompass an enormous swath of literature, music, and other media.... Given the mass of literature and other media such a condition would encompass, the error was clear and obvious; it affects substantial First Amendment rights to receive information ... and to freely exercise religion.

School Prior Approval Policy For Handouts Upheld Over Objections of Religious Group

In Taylor v. Roswell Independent School District, (D NM, Nov. 23, 2011), a New Mexico federal magistrate judge dismissed 1st Amendment and equal protection claims brought by high school students who were members of a religious group, Relentless in Roswell. The students sued after they were stopped from distributing rubber fetus figurines with a passage from Psalms and contact information for a pregnancy resource center attached to them. School officials took the action because a previous similar distribution caused substantial disruption. The court upheld a school policy requiring prior approval for students to distribute non-school related material on school grounds, even though members of Relentless in Roswell had a history of handing out many  kinds of items-- including candy canes, wrist bands and Easter eggs, many with religious messages attached-- generally without seeking school permission.  None of these however created disruption in the schools. (See prior related posting.)

FFRF Says Sheriff's Ad Violates Establishment Clause

On Tuesday, the Freedom from Religion Foundation announced that it had sent a letter (full text) to the Onslow County, North Carolina Board of Commissioners complaining about an ad that the county sheriff placed in a local newspaper. The ad, in the form of a letter from the sheriff to "All Decent and Respectable Citizens...", says in part: "Our society in in a big mess today because good, decent and respectful citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom.... Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments." The Jacksonville (NC) Daily News reported yesterday that Sheriff Ed Brown says he paid for the ad from his personal funds, as he has done for dozens of other ads over the past 21 years. FFRF says that the letter -- which includes the sheriff's official badge and seal-- is clearly intended to carry the weight and authority of the Sheriff's Office and thus violates the Establishment Clause.

Some Defendants Dismissed From Suit On Hosting Religious Services At Homeless Shelter

In Caractor v. City of New York Department of Homeless Services, 2011 U.S. Dist. LEXIS 134623 (SD NY, Nov. 22, 2011), plaintiff, a bishop in the Discovered Being Ministry, sought to hold religious services at a housing facility for the homeless shortly after he and his family received shelter there. The Department of Homeless Services denied his request and he sued. The court now granted motions of certain of the defendants to dismiss them because they were not personally involved in any of the alleged violations of plaintiff's free exercise or free speech rights.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Allen v. Holmes, (FL Cir. Ct., Nov. 22, 2011), a Florida trial court, invoking the ecclesiastical abstention doctrine, dismissed claims of defamation and intentional infliction of emotional distress brought by plaintiff against her pastor.  Plaintiff claimed that defendant made defamatory statements about her as part of an effort to oust her from the church. The court concluded that the case turns on a determination of whether the statements were lies or instead were a response to disruptive behavior by plaintiff that was inconsistent with church doctrine. Thus resolution of the case would involve an inquiry into church governance and the conduct expected of church members-- matters which the ecclesiastical abstention doctrine preclude the court from considering. [Thanks to Russell  Buchanan for the lead.] 

Memorial Cross At Camp Pendleton Raises Objections

The Los Angeles Times last Monday reported on the latest controversy over religious symbols on public property-- this time a 13-foot cross erected by Marines at Camp Pendleton. The cross was put up on Veterans Day to honor four marines killed in combat in Iraq, as well as a more general memorial. Three of the four Marines were part of a group that had erected a cross on the same location in 2003 before deploying to Iraq. That earlier cross was destroyed in a brush fire in 2007.  The Military Association of Atheists and Freethinkers has protested the cross. The American Center for Law and Justice has sent a letter to the Marines defending the constitutionality of the cross as a historical and universal symbol of remembrance.  The Marine corps says that it is reviewing the issue, and that the cross was erected by private individuals acting solely in their personal capacities. [Thanks to Scott Mange for the lead.]

7 Amish Charged With Federal Hate Crimes In Forced Beard Cuttings

The Cleveland Plain Dealer reports that authorities yesterday arrested Samuel Mullet, Sr., the Bishop of a break-away Amish group, known as the Bergholz clan, as well as three of his sons and three other followers, on charges of forcibly cutting the beards of 4 Amish men who were members of a different Amish community.  The FBI Affidavit in support of a criminal complaint (full text) says that Mullet controlled all aspects of his followers lives, forced extreme punishments on them and cleansed married women in the clan of the devil by sexual intimacy with them. After 8 families moved away from the Bergholz community in 2005 because of religious disagreements, Mullet excommunicated them. However a special committee of bishops from other communities determined that Mullet's excommunications were invalid. The 4 victims of the beard cuttings were involved with the bishop's committee, or aided break-away families, or, in one case, was one of the excommunicated members (and the father of one of those charged in the case). (See prior related posting.)

The Affidavit seeks a criminal complaint charging the 7 defendants with conspiracy to violate the federal Hate Crimes Prevention Act (18 USC Sec. 249). The federal Hate Crimes statute permits federal prosecution only if the crime involves one or more specified links to interstate commerce. One of those links is that the defendant employed a dangerous weapon that has traveled in interstate commerce. The FBI affidavit states that the attacks were carried out with "hair clippers and 8" scissors manufactured in the state of New York."

President Issues Thanksgiving Proclamation

Last week, President Obama issued a Presidential Proclamation (full text) declaring today a National Holiday of Thanksgiving. The Proclamation says in part:

When President George Washington proclaimed our country's first Thanksgiving, he praised a generous and knowing God for shepherding our young Republic through its uncertain beginnings..... In times of adversity and times of plenty, we have lifted our hearts by giving humble thanks for the blessings we have received and for those who bring meaning to our lives.  Today, let us offer gratitude to our men and women in uniform for their many sacrifices, and keep in our thoughts the families who save an empty seat at the table for a loved one stationed in harm's way.  And as members of our American family make do with less, let us rededicate ourselves to our friends and fellow citizens in need of a helping hand.