VP Biden Meets In Turkey With Ecumenical Patriarch

Vice President Joseph Biden, on a trip last week to Iraq, Turkey and Greece, met in Istanbul, Turkey on Saturday with Greek Orthodox Ecumenical Patriarch Bartholomew. (White House blog.) According to Archon News, in a private meeting with the Patriarch, Biden discussed religious freedom in Turkey, the hoped-for reopening of the Theological School on Halki (see prior posting), Turkey's accession to the European Union, and the ecological initiatives of the Ecumenical Patriarchate.

Sales Clerk Claims Store's Customer LGBT Policy Violated Her Religious Fredom

Liberty Counsel issued a press release yesterday taking aim at the department store Macy's LGBT non-discrimination policy, claiming that its enforcement infringed the religious freedom of a Macy's sales clerk.  Apparently Macy's has a policy that transgender individuals may choose to use either male or female dressing rooms to try on clothing.  As recounted by Liberty Counsel, in San Antonio (TX) sales clerk Natalie Johnson saw "a young man dressed as a woman" walk out of a women's fitting room.  Johnson told the customer, who was accompanied by five other individuals, that he could not go back in the fitting room because it was for women. The customer claimed to be a female. The group, in an argument with Johnson, claimed that Macy's is supposed to be LGBT friendly. Johnson replied that "Macy’s is also non-discriminatory toward religion, and that it would go against her religious beliefs to lie that he was a woman or compromise with homosexuality." Johnson was fired after she refused her manager's instructions to comply with the company's LGBT policy.

South Carolina School District Sued Over Promoting Religion

The ACLU announced yesterday that it has filed a federal lawsuit challenging school-sponsored religious activities in the Chesterfield County, South Carolina schools. The complaint (full text) in Anderson v. Chesterfield County School District, (D SC, filed 12/5/2011) alleges a practice by the New Heights Middle School of sponsoring school events that feature prayer, proselytizing, and inculcation of religion.  The complaint focuses particularly on a school evangelical revival assembly held last September which featured a Christian rapper ("B-SHOC"), as well as a minister who delivered a sermon and church members who prayed with students.  Apparently students were also urged to sign a pledge dedicating themselves to Christ. Students who elected not to attend the assembly were required to instead report to the in-school suspension room. The complaint also alleges that religious depictions are displayed at various places in the school. Plaintiffs seek a declaration that these practices violate the Establishment Clause and an injunction to prevent them in the future. (See prior related posting.)

Cert. Denied In New York School Ban on Using Buildings for Church Services

The Supreme Court today denied certiorari in Bronx Household of Faith v. New York City Board of Education (Docket No. 11-386, cert. denied 12/5/2011) (Order List). In the case, the 2nd Circuit, in a 2-1 decision, upheld the New York City Board of Education's policy that bars use of school facilities by outside groups after school hours for "religious worship services," even though facilities are available for many other kinds of activities. (See prior posting). Reuters reports on the Court's refusal to review the 2nd Circuit's decision.

Christians Fear Sectarian Violence From "Arab Spring"

In an lengthy article today titled An 'Arab Winter' Chills Christians, the Wall Street Journal reports that at least 54 Iraqi Christian churches have been bombed and at least 905 Christians have been killed in sectarian violence since the U.S. invasion in 2003. Many Christians have fled. The Christian population is down to 500,000 from an estimated 800,000 to 1.4 million in 2003.  Summarizing its findings, the Journal concludes:

With the Arab Spring now bringing political turbulence to many other countries in the region, Christians throughout the Middle East are worried that what happened in Iraq may be a harbinger of misfortune to come in their own communities. While many remain supporters of the uprisings, others fear that the toppling of their autocratic rulers could uncork sectarian violence against Christians and other minority groups in their own nations.

In a related development, last week, Minority Rights Group International released a report titled Iraq Minorities: Participation in Public Life.

Indonesian Animist Tribe Wants Their Religion On ID Cards

In Indonesia, the Inner Baduy tribe which lives in the province of Banten is asking the Constitutional Court to allow them to have their traditional animist religion-- Sunda Wiwitan-- listed on their government identification cards.  According to today's Jakarta Globe, until 2010 they were able to do this, but then local officials reinterpreted the law and required them to choose to be listed as belonging to one of the six official religions--Islam, Buddhism, Hinduism, Catholicism, Protestantism or Confucianism.  The 2006 Public Administration Law provides that the space for religion can be left blank if the person does not belong to one of these six faiths.

Recent Articles of Interest

From SSRN:

• John William Tobin, Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance, (U of Melbourne Legal Studies Research Paper No. 564, Nov. 28, 2011).
• Avishalom Westreich, The 'Gatekeepers' of Jewish Marriage Law: Marriage Annulment as a Test Case, Journal of Law and Religion, Vol. 27, 2012.
• Munir Ahmad Mughal, International Criminal Court: An Examination from Islamic Point of View, (November 30, 2011). 

From SmartCILP and elsewhere:

• Angela C. Carmella, Symbolic Religious Expression on Public Property: Implications for the Integrity of Religious Associations, 38 Florida State University Law Review 481-535 (2011).
• Scott Ellis Ferrin, Rights, Religion, Regard, Contact: The Common School Ideal, A Nurturing, Safe and Effective Educational Environment for All Students, [Abstract], 2011 BYU Education & Law Journal 205-236.
• Ralph D. Mawdsley, Employment, Sexual Orientation, and Religious Beliefs: Do Religious Educational Institutions Have a Protected Right to Discriminate in the Selection and Discharge of Employees?, 2011 BYU Education & Law Journal 279-302.
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, 2011 BYU Education & Law Journal 547-569.
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations-- 2011 Revision, PLI Course Handbook for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings (2011).

Army Settles Case; Allows Jewish Chaplain To Enlist and Keep Beard

Chabad.org reports that the U.S. Army has settled the lawsuit filed against it by Rabbi Menachem Stern who was not permitted to become a military chaplain because he refused for religious reasons to shave his beard. (See prior posting.) Stern claimed that the refusal to grant him an exemption from the grooming provisions violated his free exercise and equal protection rights. The Army has now relented and has approved him for a reserve commission. He will be sworn in on Friday and will head to chaplain school in January. JTA reports that the swearing-in will be streamed live by the Alef Institute.  Stern hopes to request active duty after he completes his chaplaincy training.  There is currently a shortage of Jewish chaplains in the military. Only 9 Army rabbis are on active duty, and there are only 37 Jewish chaplains in all the armed services, including the reserves.  Many Chabad rabbis would be willing to serve as chaplains if they could obtain an exemption that allows them to continue to wear a beard.  Stern's case may set a precedent for doing so.

Recent Prisoner Free Exercise Cases

In Hernandez v. United States, 2011 U.S. Dist. LEXIS 136298 (ND OH, Nov. 28, 2011), an Ohio federal district court rejected a federal inmate's complaints regarding provision of kosher meals to Jewish inmates, particularly during Passover in 2011.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 136916 (ED CA, Nov. 28, 2011), a California federal magistrate judge recommended that an inmate who is a member of the Moorish Science Temple of America be permitted to move ahead with his complaint that his religion requires him to change his name to a Muslim name, but that his request to do so was denied by the warden.

In Santana v. Aviles, 2011 U.S. Dist. LEXIS 137319 (D NJ, Nov. 30, 2011), a New Jersey federal district court rejected an inmate's claim that as a pre-trial detainee his rights under the 1st Amendment and RLUIPA were violated when, during a 9-month unit lock-down, he was denied the right to attend church services.

In White v. Linderman, 2011 U.S. Dist. LEXIS 138375 (D AZ, Nov. 29, 2011), an Arizona federal district court permitted an inmate who believed in Messianic Judaism to move ahead with his claim that his rights under federal and state law were infringed when prison authorities refused to provide him with a kosher diet.

In Murray v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 138305 (D AZ, Nov. 28, 2011), an Arizona federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims against a number of defendants in which he alleged he was denied a religious diet. However the court dismissed the food service company as a defendant because "a Bivens action is only available against federal officers, not private companies acting under color of federal law in operating a prison."

In Burford v. Troutt, (MD TN, Nov. 18, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was required to return to his cell when Christian services were being held in the commons area, that there were problems with holding Muslim study sessions, and he was not allowed to wear a kufi.

Delaware Catholic Orders and School Settle Sex Abuse Cases

The Wilmington (DE) News-Journal reported yesterday that 14 Delaware men have settled for $7 million their suits charging sex abuse as children by two employees of a Catholic school.  The plaintiffs were abused in the 1970's and '80s, nine of them by Capuchin Friar Paul L. Daleo, and five by former wrestling coach John J. Fleming, both of whom were employed by St. Edmond's Academy.  The settlement was with the Academy, the Capuchian friars, and Brothers of the Holy Cross who run the school. It also requires the release of names of any others at Capuchin institutions with proven, admitted or credible accusations of child sexual abuse. Claims against religious orders were not part of the Diocese of Wilmington's Chapter 11 bankruptcy reorganization plan approved earlier this year. (See prior posting.)

ACLU Charges FBI With Illegally Collecting Information On Political and Religious Beliefs

In a press release issued Thursday, the ACLU charged that the FBI has been using its community outreach programs-- including its mosque outreach program-- to gather information for intelligence purposes, in violation of the Privacy Act. 5 USC 552a(e)(7) bars federal agencies, with certain exceptions, from maintaining records that describe an individual's exercise of First Amendment rights. An ACLU memo describes and links to the full text of various documents it obtained through Freedom of Information Act requests that led it to conclude that the FBI is illegally collecting and storing information on Americans' political and religious beliefs.

Egyptian Elections Lead To Debate Among Islamists Over Role of Shariah

In the first round of Egyptian elections for the lower house of parliament held this week, two Islamic parties were the winners. As reported by CNN, the relatively moderate Muslim Brotherhood's Freedom and Justice Party took 40% of the vote, while the more fundamentalist Noor Salafi Movement took 20% of the vote. The New York Times today analyzes at length the internal debate this has caused. Here are some excerpts from the analysis:

[Salafist] Sheik Shahat ...  and his allies are demanding strict prohibitions against interest-bearing loans, alcohol and “fornication,” with traditional Islamic corporal punishment like stoning for adultery.

The unexpected electoral success of the Salafis ... is terrifying Egyptian liberals and troubling the West. But their new clout is also presenting a challenge to the Muslim Brotherhood, in part by plunging it into a polarizing Islamist-against-Islamist debate over the application of Islamic law in Egypt’s promised democracy.... 

The Brotherhood ... is at its core a middle-class missionary institution, led not by religious scholars but by doctors, lawyers and professionals.... [I]ts leaders have sought to avoid potentially divisive conversations about the details of Islamic law that might set off alarms about an Islamist takeover. But their evasiveness on the subject has played into long-term suspicions of even fellow Islamists that they are too concerned with their own power.

Open Policy On Courthouse Displays Results In Unusual Mix

In Leesburg, Virginia, the first of  9 or 10 holiday displays on the Louden County Court House grounds will go up this week end.  As reported last month by Leesburg Today, after an unsuccessful effort in 2009 to end all holiday displays in Courthouse Square-- which would have included a manger scene and a Christmas tree that usually were placed there-- the county settled on a first-come first-served policy for December displays.  The first 10 (now reduced to 9 because of concern about a tree in one location on the grounds), are a mixed bag. They include a creche, two displays from atheist groups, a display of a letter from Jesus, a Santa on a cross to decry the materialistic nature of the holiday, and two displays from members of the Church of the Flying Spaghetti Monster. [Thanks to Scott Mange for the lead.]

South Dakota High Court Says Clergy Abuse Case Barred By Statute of Limitations

In Iron Wing v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Nov. 30, 2011), the South Dakota Supreme Court held that a lawsuit filed in 2008 by a victim of clergy sexual abuse committed over 40 years earlier is barred by the statute of limitations.  Plaintiff claimed he was sexually abused by a nun and a priest at a boarding school he attended. SDCL 26-10-25 requires the suit to be brought "within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later." The court said:

“Inquiry notice is determined by an objective standard.” ...  Although Iron Wing perhaps subjectively could not “connect the full extent of his injuries to the sexual abuse, he was aware of enough facts to put him on inquiry notice.”... He knew he had been abused by two members of a religious order beginning when he was age ten and resuming at age thirteen, because of this abuse he was angry and harbored hatred against the church and its priests and nuns from the time he was in the eleventh grade, he left the school because of the abuse, and he never forgot the abuse. These circumstances were sufficient to “‘prompt[] a reasonably prudent person to seek out information regarding his injury or condition and its cause.’”

AP reports on the decision.

Rhode Island's "Holiday Tree" Provokes Criticism

Rhode Island Gov. Lincoln Chafee has generated controversy after a press release announcing a "holiday tree lighting" to be held in the Statehouse Rotunda on Dec. 6. AP reported this week that critics are upset he is not calling it a "Christmas tree." Last January, the Rhode Island House of Representatives passed a resolution (full text) providing:

That it is the policy of the state that state officials and departments refer to the tree customarily erected or displayed in celebration of the period from Thanksgiving of each year to January of the following year as a "Christmas tree" and not as a "holiday tree" or other non-traditional terms...

However Chafee says he is merely respecting the state's history of religious tolerance.  He added that lawmakers who are upset should instead focus their energy on feeding the hungry. A press release from Liberty Counsel yesterday reported that John Leyden, the owner of Big John Leyden Christmas Trees, who donated the tree that will be lit this year says he may now take it back.

Obama and Family Light New National Christmas Tree

AP reports that yesterday President Obama, along with his family, attended the lighting of the National Christmas Tree on the Ellipse. In his remarks (full text) before he and his family lit the tree, Obama said in part:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.  

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season.  

So long as the gifts and the parties are happening, it’s important for us to keep in mind the central message of this season, and keep Christ’s words not only in our thoughts, but also in our deeds.

While this is the 89th year for the lighting ceremony, this year the ceremony took place using a tree that was newly planted in March after strong winds in February toppled the previous tree that had been used since 1978.

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.