Court Rebuffs New Claims By Officer Disciplined For Refusing To Attend Event At Mosque

In Fields v. City of Tulsa, 2011 U.S. Dist. LEXIS 136522 (ND OK, Nov. 28, 2011), an Oklahoma federal district court rejected an attempt by a Tulsa police officer to file a second amended complaint in his suit against the Tulsa Police Department.  Officer Paul Fields was disciplined by the Department when he refused to attend, and refused to require officers under his command to attend, a "Law Enforcement Appreciation Day" hosted by the Islamic Society of Tulsa at a local mosque. Fields wanted to add a 1st Amendment speech claim and a claim under the Oklahoma Religious Freedom Act. In rejecting Fields' religious freedom arguments, the court said:

Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing "to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion)."... However, nothing in Fields' proposed Second Amended Complaint suggests that Defendants' actions in any way inhibited or curtailed Fields from practicing his religion.... Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs....

(See prior related posting.) Yesterday's Tulsa World has more background on the decision.

ABA Names Religion Clause Among Top 100

I am pleased to announce that the editors of the ABA Journal today announced they have selected Religion Clause as one of the top 100 legal blogs. This is the 4th time in 5 years that Religion Clause has been on this list.  The 100 blogs are in 12 categories, and the ABA is now asking readers to vote for their favorite blog in each category.  Religion Clause is one of 14 blogs in the "Niche" category.  If you are a fan of Religion Clause, I hope you will vote for it here.  The ABA website will ask you to register before voting to prevent "ballot box stuffing." Voting ends Dec. 30.

"Tebowing" By Marines-- Church-State Issue or Silliness?

Occasionally the line between "silliness" and a true church-state issue is blurred.  Here is the latest example.  Last month, Yahoo! Sports explained a new fad known as "Tebowing," inspired by now-Denver Broncos quarterback Tim Tebow who is known for his displays of his Christian religious faith. According to an NFL posting, Tebowing is:

the practice of posing on bended knee as if deep in prayer, which spread across the Internet with amazing speed after [Tebow] was photographed in such a pose during a comeback win at Miami.

Tebow's reaction to the craze:  "Someone told me the greatest form of flattery is impersonating somebody." A Tebowing website is filled with photos of the practice.

The latest question arises, however because the Military Times last week published a photo of a dozen marines in formation in uniform on the football field performing "their version of 'Tebowing' before the Broncos-Jets game on Nov. 17."  It is not clear from the photo why they are there. The Military Times also explains Tebowing: "The trend pokes fun at Tebow's penchant for dropping to a knee in prayer, with his elbow on his knee and his fist under his bowed head." So the question is how to regard this display of Marines in uniform.  There is potentially a church-state issue if the Marines are there in some official capacity-- endorsing or, on the other hand, mocking, Tebow's religious beliefs.  Or maybe it is just silliness to which we should apply the legal maxim "de minimis non curat lex"-- the law does not concern itself with trifles. God and Country blog yesterday also  commented on the photo of the Marines.

German Court Says School Can Stop Student From Praying To Preserve Order

Germany's Federal Administrative court yesterday ruled that while a student's right to pray at school is constitutionally protected, a school may ban a student from praying when it disrupts the school's operations.  The Local and Al Jazeera both report on the decision that involved a Muslim student who, with several others, laid down his jacket in the school hallway between classes and prayed. The school's principal objected, in part because severe conflicts had already broken out among Muslim students over interpretation of the Qur'an.

Catholic University Cleared In Challenge To Same-Sex Dorms

In a press release yesterday, Catholic University announced that the D.C. Office of Human Rights has dismissed the complaint filed by George Washington University law professor John Banzhaf challenging as discriminatory Catholic University's elimination of mixed-gender dormitories on campus. The 16-page opinion in In re Banzhaf v. Garvey, (DC OHR, Nov. 29, 2011), reviews at length the arguments by both sides. Among the University's claims was that "co-ed dorms contribute to an atmosphere that is incompatible with the university's religious mission," and that its decision is protected by the Religious Freedom Restoration Act. Prof. Banzhaf disagreed arguing that the University's moral and ethical concerns are secular ones, not basic religious tenets.  In upholding the University's policy, the OHR held broadly that:

the DCHRA does not forbid colleges and universities from making sex-based distinctions between students. We agree that to follow Complainant's reasoning would include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead to absurd results.

Former Employee Sues Na'amat For Religious Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed Tuesday by Marshall Garvin against his former employer, Na'amat USA (a Jewish social service agency) and his supervisor there, Susan Schwartz. Garvin says he was fired immediately after he complained to Na'amat's president about his treatment by Schwartz in connection with his leaving work in order to say Kaddish for his mother who died in January. Observant Jews say the Kaddish prayer 3 times each day for 11 months at religious services after a parent dies. Garvin says that Schwartz phoned several local synagogues and told him which ones he could attend, harassed him about where he was, and kept him from attending services around 15 times. Na'amat says Garvin was laid off in a reduction of force. Apparently Garvin in the past won two settlements in religious discrimination cases against the U.S. Postal Service, where he worked for over 30 years.

Federal Election Commission Releases Enforcement Files On Catholic Group's Robocalls

BNA's Daily Report for Executives [subscription required] reports that on Nov. 25, the Federal Election Commission released documents in an enforcement case against Informed Catholic Citizens (ICC), a 501(c)(4) non-profit organization.  The  case grew out of a complaint (full text) filed in 2008 by the Freedom From Religion Foundation. At issue were robocalls featuring a Catholic priest supporting John McCain over Barack Obama in the Presidential election because of their respective positions on abortion.  In January 2011, the FEC voted unanimously that the call involved express advocacy and there was reason to believe that ICC had violated the Federal Election Campaign Act by failing to report an independent expenditure and failing to include a disclaimer stating that ICC had paid for the call. (FEC Certification). A General Counsel's Report concluded, however, that because of the low dollar amount at issue, no further action should be taken.  A vote of the FEC in October split 3-3 on that recommendation. Instead the Commission voted 5-0 to send ICC a letter of caution and close the file. However on Oct. 21, the 3 Democratic members of the Commission released a Statement of Reasons why they preferred to seek a statutory penalty of $7500 against ICC. They contended that "while the call may have been relatively inexpensive, it appears to have reached almost 70,000 recipients."

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Dissident Hasidic Faction Loses Establishment Clause Challenge To Town's Government

In Kiryas Joel Alliance v. Village of Kiryas Joel, (SD NY, Nov. 28, 2011), a New York federal district court dismissed a series of claims brought by a dissident faction within the Village of Kiryas Joel (NY), an Orthodox Jewish Hasidic enclave.  The court describes the claims as follows:

Plaintiffs ... bring this action alleging that the Village is a "theocracy," the affairs of which are so "inherently infused by, and entangled, with religion" that its "very existence" violates the Establishment Clause....

Behind the suit is a long-standing and much-litigated dispute between two factions of the Satmar Hasidim over which faction's rabbi should be the leader of the community. The dominant faction that controls the main synagogue (Congregation Yetev) and which holds political offices in the community is led by Grand Rebbe Aron Teitelbaum. (See prior related posting.)  Plaintiffs argue that the Establishment Clause has been violated because:

the Mayor of the Village holds a leadership position in Congregation Yetev, and ... his "dual religious and governmental roles" operate to establish an official faith becuase his religious beliefs trump his governmental role with respect to his actions as Mayor...; [and] all the other Village officials are members of Congregation Yetev, and therefore are controlled by the Grand Rebbe's dictates....

The court held, however that:

the Supreme Court held in McDaniel v. Paty ... that the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy.

The court also rejected on various pleading and procedural grounds-- including res judicata and standing-- several claims by plaintiffs alleging zoning and other actions by defendants that discriminate against the dissidents and their synagogue. However one claim rejected on standing grounds was dismissed without prejudice so it could be refiled with adequate allegations. That was a claim that the town's Community Room Law that requires builders to include a community room in residential developments violates the Establishment Clause because all but one of the community rooms is used as a synagogue.

The Hudson Valley Times Herald-Record and the Mid-Hudson News both report on the decision. [Thanks to Failed Messiah for the link to the decision.]

Azerbaijan Government Agency Busy Examining Religious Literature

According to a report by News.Az yesterday, one of the main roles of Azerbaijan's State Committee for Work with Religious Organizations is the review of religious literature and texts that religious groups wish to distribute in the country. In 2010, the Committee reviewed 18.052 items and found 348 inappropriate for distribution.  In the first 9 months of this year, the Committee reviewed 15,051 items and found 47 inappropriate for distribution.

Michigan Legislature Passes Anti-Bullying Law, Dropping Religious Exemption

Michigan's state Senate yesterday passed the House version of "Matt's Safe School Law," an anti-bullying bill. (Full text of HB 4163). As reported by the Huffington Post, in doing so the Senate gave up on a much more controversial version it had passed earlier which exempted from coverage statements of sincerely held beliefs or moral convictions. That version was strongly criticized by those claiming it would create a religious exemption for bullying of gay and lesbian students. (See prior posting.) HB 4163 contains no similar exception, and requires public schools to adopt anti-bullying policies that prohibit bullying "without regard to its subject matter or motivating animus."

Courts Drawn Into Dispute Over Recall Petitions Circulated By Churches

Earlier this month, an El Paso, Texas church and its pastor filed a federal lawsuit challenging on 1st and 14th Amendment grounds the city's enforcement against churches of a provision of the Texas Election Code that bans corporations from circulating petitions to call an election. (TX Election Code Sec. 253.094). The complaint (full text) in Hoyt v. City of El Paso, Texas, (WD TX, filed 11/17/2011), was filed after the city invoked the state law provision to attempt to stop churches from circulating recall petitions aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) Alliance Defense Fund announced the filing of the lawsuit. Meanwhile, according to KTSM News and an ADF release, Monday in a state court lawsuit brought by the mayor against Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values, and other local residents, the judge refused to issue a preliminary injunction to stop the recall election. The mayor argued that signatures collected in churches on the recall petitions were invalid.

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.