Recent Articles of Interest

From SSRN:

• Nathan B. Oman, How to Judge Shari'a Contracts: A Guide to Islamic Marriage Agreements in American Courts, (Utah Law Review, Vol. 2011, No. 1, p. 287, 2011).
• Douglas NeJaime, Marriage Inequality: Religious Exemptions and the Production of Sexual Orientation Discrimination, (California Law Review, Forthcoming).
• Kishor Kunal, Freedom of Religion in Secular State, (December 6, 2011).
• Munir Ahmad Mughal, English Translation of Ibn Hashsham's Siratun-Nabi (Peace Be Upon Him), (December 11, 2011).
• Steven Aiello, 'Islam and Social Justice in Iran': The Merging of Economic, Political and Religious Dogmas in the Iranian Revolution, (December 6, 2011).
• Jeffrey A. Parness, Statutory Parenthood for Same-Sex Partners, (Illinois Bar Journal, Vol. 99, p. 636, December 2011).
• Mohammed Khnifer, Goldman Sachs Claims that its $2 billion Sukuk Programme Follows a Murabaha Structure, Mohammed Khnifer Claims Otherwise – That it's Nothing More than Areverse Tawarruq,(December 6, 2011).

Court Upholds Church's Firing of Pre-School Director For Living With Boyfriend

In Henry v. Red Hill Evangelical Lutheran Church of Tustin, (CA App., Dec. 9, 2011), a California appeals court upheld a church's firing of its pre-school director for living with her boyfriend and raising their child together without being married-- living arrangements that were contrary to the religious beliefs of the church.  The court summarized its holdings as follows:

(1) Henry‟s claim of wrongful termination under the FEHA [California Fair Employment and Housing Act] is barred because the church does not qualify as an “employer” under the FEHA; (2) Henry‟s employment was terminated for religious reasons for which the church and school are exempt under title VII of the 1964 Civil Rights Act (42 U.S.C. § 2000e et seq. (Title VII)); and additionally, (3) her claim for wrongful termination in violation of public policy is barred by the ministerial exception.

Recent Prisoner Free Exercise Cases

In Mitchell v. Texas Department of Criminal Justice, 2011 U.S. Dist. LEXIS 139638 (ND TX, Dec. 3, 2011), a Texas federal magistrate judge dismissed claims by a Sunni Muslim inmate that his rights under the 1st Amendment and RLUIPA were infringed when he was disciplined for failing to keep a medical appointment at the end of Ramadan.

In Lemcool v. Pool, 2011 U.S. Dist. LEXIS 139535 (ND FL, Dec. 3, 2011), a Florida federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 139536, Nov. 1, 2011) and dismissed complaints by a Wiccan inmate that she was refused 3-ring binders for religious writings, and that Tarot cards were limited to the chapel. However it refused to dismiss for lack of exhaustion a claim that she was not provided opportunities to celebrate Sabbat and Esbats.

In LeCompte v. Ricci, 2011 U.S. Dist. LEXIS 140586 (D NJ, Dec. 7, 2011), a New Jersey federal district court rejected a inmate's 1st Amendment and RLUIPA challenges to disciplinary action taken against him for establishing a business and providing false information to government agencies to conceal that some of those involved were incarcerated. The inmate claimed the business was an Islamic charity intended to assist at-risk women.

In Isbell v. Ryan, 2011 U.S. Dist. LEXIS 140469 (D AZ, Dec. 6, 2011), an Arizona federal district court permitted an Asatru inmate seeking a lacto-vegetarian diet to proceed with 1st Amendment and RLUIPA claims against several named defendants, finding that there remains a dispute as to whether the inmate's request was based on a sincerely held religious belief. The court said that sincerity of belief does not turn on objective knowledge of a religion. Nor is the centrality of a belief to the religion relevant to the free-exercise claim.

In McMichael v. Pallito, 2011 U.S. Dist. LEXIS 138124 (D VT, Dec. 1, 2011), a Vermont federal district court adopted a magistrate's recommendations (2011 U.D. Dist. LEXIS 140907, Oct. 24, 2011) and rejected an inmate's claim that delay in furnishing him a diet consistent with his Muslim beliefs infringed his free exercise rights.

In Thomas v. Taylor, 2011 U.S. Dist. LEXIS 141625 (SD IL, Dec. 9, 2011), an Illinois federal district court dismissed a complaint by a Muslim inmate who, while furnished a vegetarian diet consistent with his beliefs, instead wanted access to the kosher diet plan.

NYT Says Strong Al Nour Showing In Egypt Stems From More Than Religious Concerns

Today's New York Times carries an interesting analysis of why Egypt's conservative Muslim Salifist Al Nour Party was so successful in the first round of Parliamentary elections:

their appeal may have as much to do with anger at the Egyptian elite as with a specific religious agenda. The Salafis are a loose coalition of sheiks, not an organized party with a coherent platform, and Salafi candidates all campaign to apply Islamic law as the Prophet Muhammad did, but they also differ considerably over what that means. Some seek within a few years to carry out punishments like cutting off the hands of thieves, while others say that step should wait for the day when they have redistributed the nation’s wealth so that no Egyptian lacks food or housing.

But alone among the major parties here, the Salafi candidates have embraced the powerful strain of populism that helped rally the public against the crony capitalism of the Mubarak era and seems at times to echo — like the phrase “silent majority” — right-wing movements in the United States and Europe.

Israeli Bus Company Fined After Driver Enforces Sex Segregation

In Israel on Wednesday, the Rishon Lezion Magistrate Court fined Egged, Israel's largest bus company, the equivalent of $1,070 (US) for requiring a woman passenger to sit in the back of the bus while the bus traveled through a Haredi (strictly Orthodox) neighborhood.  According to JTA, a driver told the passenger (an Orthodox woman who objected to sitting in the back) that only the rabbis decide whether a bus route is segregated or not. Egged issued a statement saying that the driver was not reflecting the company's views. Last January, Israel's High Court of Justice ruled that while sex-segregated buses serving strictly Orthodox communities could continue on a strictly voluntary basis, a bus operator may not request or order a woman to sit in the back of the bus. (See prior posting.)

White House Hosts Hanukkah Reception

As reported by Haaretz, the White House yesterday hosted its annual Hanukkah reception, with President Obama, Vice President Joe Biden and their wives in attendance along with some 550 guests. In his remarks (full text), the President, after noting the reception was a bit early this year, said in part:

This year, we have to recognize the miracles in our own lives.  Let’s honor the sacrifices our ancestors made so that we might be here today.  Let’s think about those who are spending this holiday far away from home -– including members of our military who guard our freedom around the world.  Let’s extend a hand to those who are in need, and allow the value of tikkun olam to guide our work this holiday season.

This is also a time to be grateful for our friendships, both with each other and between our nations.  And that includes, of course, our unshakeable support and commitment to the security of the nation of Israel.

Yahoo! News has additional photos of the reception.

9th Circuit Hears Arguments In California Proposition 8 Case

AP reports that yesterday the U.S. 9th Circuit Court of Appeals heard two sets of arguments on different aspects of Perry v. Brown, the case challenging the constitutionality of California's Proposition 8 that barred same-sex marriage in the state. One set of arguments (audio of arguments) focused on whether now-retired Judge  Vaughn Walker who presided over the district court trial should have disclosed that he was in a long-term relationship with a male partner, arguably a fact bearing on his impartiality in deciding the case. The second set of arguments (audio of arguments) dealt with whether the court should unseal video recordings of the trial made by Judge Walker.

Egyptian Military Moves To Limit Influence of Islamists On New Constitution

AP reported Wednesday that Egypt's ruling military leaders, concerned with the strong showing by Islamic parties in the first round of parliamentary elections, have decided to appoint a new council to assure that the 100-member constituent assembly appointed to draft a new constitution will be representative of all religions, professions, and political parties. In response to a question, Gen. Mukhtar Mulla agreed that this move is designed to limit the influence of Salafis who want to impose strict Islamic law in Egypt. AFP reports that the Muslim Brotherhood, objecting to the move, says the army is trying to marginalize Parliament in the writing of the new constitution.

Kazakhstan Muslim Students Plan To Sue Over Hijab Ban

Radio Free Europe reports today that in Kazakhstan, 8 female Muslim students plan to sue Saqtaghan Baishev University because it refuses to allow them to attend classes wearing hijabs (head scarves). The University says that its regulations are consistent with Kazakhstan's recently-enacted Law on Religions and Religious Organizations.  Attorneys for the students say the University's regulations violate Kazakhstan's constitution which guarantees citizens the right to freely practice their religion.

Group Seeks Input On Tax Issues Relating To Religious Non-Profits

Last January, the Evangelical Council for Financial Accountability at the request of Iowa Senator Chuck Grassley, ranking member of the U.S. Senate Finance Committee, formed an independent national commission to study accountability and policy issues affecting churches and religious organizations. (See prior posting.) Yesterday that commission, the Commission on Accountability and Policy for Religious Organizations, announced that it has added a public input page to its website.That page asks members of the public for input on 17 separate issues relating to taxation of churches and conditions imposed on religious organizations claiming non-profit tax status.

Controversy Over Nativity Scene In Texas Town

This year it is in the small town of Athens, Texas that a controversy over a nativity scene on public property has erupted.  KYTX News reported yesterday that the Keep Athens Beautiful Committee decorates downtown Athens with reindeer, Santa, carolers, a Christmas tree and a nativity scene. The Freedom from Religion Foundation has objected, but County Judge Richard Sanders says the display is legal because it includes secular as well as religious elements. FFRF alternatively wants to put up its own sign reading in part: "There are no gods, no devils, no angels, no heaven or hell."  County Commissioner Joe Hall says he will fight to keep the nativity scene, declaring: "This nation is a Christian nation regardless of what those fruit loops and fruitcakes in Washington D.C. say. Hell will freeze over before I vote to have it removed."

Tennessee School Board Agrees To Settlement In Challenge To Religious Practices

The ACLU of Tennessee announced yesterday that the Sumner County (TN) Board of Education has agreed to enter into a consent decree in a lawsuit charging that the Sumner County schools have engaged in a pattern of promoting religion. (See prior posting.) The proposed Consent Decree (full text) in ACLU of Tennessee v. Sumner County Board of Education is summarized by the ACLU as follows:

school officials can no longer promote their personal religious beliefs to students.  Religious symbols and items may not be displayed in a place publicly visible to students.  Teachers may supervise student clubs but can no longer participate in their activities and school officials cannot encourage or solicit prayer at school functions.  School events may not be held in religious venues except under certain limited conditions and the schools can no longer take field trips to religious sites.  Only family members will be permitted to visit schools at lunchtime.  Groups wishing to distribute materials to students, such as members of Gideons International, must do so in a neutral way, minimizing contact with students and no groups will be given preferential access to students.  Non-religious clubs shall not have “chaplain” positions and all course materials and choral music must have a clear pedagogical purpose.

The Tennessean, reporting on the settlement said school officials emphasized that under it students will still be able to pray at school, study the Bible during lunch breaks, organize religious clubs, wear religious jewelry and hold See You At the Pole prayer events so long as teachers do not participate in or lead the activity.

Canada's High Court Hears Arguments Over Whether Muslim Witness Can Wear Full-Face Veil

The National Post reports that yesterday the Supreme Court of Canada heard oral arguments in a case raising the issue of whether a Muslim woman who is alleging childhood sexual abuse by her cousin and her uncle should be allowed to testify wearing a full-face veil. An Ontario court ordered the woman during a preliminary hearing to remove her niqab.  The Globe and Mail captures the flavor of the argument:

There was no mistaking the impatience in Supreme Court of Canada Justice Morris Fish’s voice when he demanded the name of a single lawyer who would willingly cross-examine a witness whose face was concealed by a veil.

“Some blind lawyers that I know,” responded David Butt, counsel to the sexual assault complainant seeking to testify from behind an Islamic niqab....

It was that kind of day at the landmark hearing, where the court must determine whether religious ritual and observance can trump the right of an accused to a fair trial. Judges clashed repeatedly with lawyers who sought to rank one right ahead of the other – particularly Mr. Butt.

The judges questioned not only the fairness of allowing the defendant, N.S., to hide her facial expressions during cross-examination, but whether two diametrically opposed rights can ever be reconciled.

USCIRF Takes Formal Steps To Prepare To Close Down

As previously reported, the U.S. Commission on International Religious Freedom is now scheduled to go out of business on Dec. 16.  Under Sec. 209 of the International Religious Freedom Act, the Commission was originally scheduled to terminate on Sept. 30. However two continuing resolutions have temporarily extended its life while a House-passed 2-year re-authorization bill (HR 2867) has been awaiting passage in the Senate. However the Senate has not acted, apparently because of a "hold" placed on the bill by Senate majority whip, Sen. Richard Durbin (D-Ill.).  According to a report last month in CQ Weekly, the hold stems from a dispute over an entirely unrelated matter.  Durbin wants Congress to appropriate funds for the federal government to buy up an unused maximum-security prison in his district in Illinois and turn it into a federal facility.  Rep. Frank R. Wolf (R-VA), the sponsor of the USCIRF re-authorization bill, is currently chair of the House Appropriations Commerce-Justice-Science Subcommittee that is responsible for funding federal prisons.

Now that it appears increasingly unlikely that USCIRF's life will be extended beyond Dec. 16, the Government Services Administration has notified the Commission that it must take steps to prepare for closure of the agency.  In response USCIRF has adopted a Resolution (full text) authorizing the archiving of records and steps to close the agency in compliance with federal law if a last minute extension is not enacted.  Copies of the Resolution were sent to the President, the Secretary of State and all members of Congress.  CNS News yesterday reported on these developments. [Thanks to Pew Sitter for the lead.]

Lawyer, Client Face Sanctions For Anti-Catholic Statements In Legal Memorandum

The St. Paul (MN) Pioneer Press reports that U.S. Bankruptcy Judge Nancy Dreher yesterday issued show-cause orders to attorney Rebekah Nett and her client Naomi Isaacson threatening to impose sanctions on them for bigoted anti-Catholic statements contained in a legal memorandum they filed with the court last month. The memorandum was written by Isaacson, but signed by Nett. It called Judge Dreher, another judge and two bankruptcy trustees "dirty Catholics" and said the courts are "composed of a bunch of ignoramus, bigoted Catholic beasts that carry the sword of the church." It accused one of the bankruptcy trustees of being "a Jesuitess" with a "track record of lies, deceit, treachery and connivery." In all, Judge Dreher cited 10 passages containing religious slurs, allegations of conspiracy and the like that were included in the memorandum. A hearing is scheduled for Jan. 4 for Nett and Isaacson to show cause why they should not be fined up to $10,000 each and be ordered to write public apologies. The court is also proposing that attorney Nett be required to attend at least 30 hours of ethics training.

UPDATE: The Catholic League for Religious and Civil Rights announced on Dec. 9 that it is filing a formal complaint against attorney Rebekah Nett with the Minnesota Office of Lawyers Professional Responsibility Board and a formal grievance against her with the Wisconsin Office of Lawyer Regulation.

UPDATE2: The St. Paul Pioneer Press reported on 12/14 that Naomi Isaacson's filings in response to the court's show cause order contain "even more religious slurs than the one prompting the judge's warning."

Fired Muslim Drivers Sue Car Rental Company For Religious Discrimination

AP reports that in Seattle, Washington yesterday, 25 Somali Muslims who previously worked as drivers for Hertz Corp. at the Seattle-Tacoma International Airport have filed a state court lawsuit charging religious discrimination. Hertz fired the drivers when they refused to clock out for their daily prayer breaks. As previously reported, apparently Hertz originally agreed they would not need to clock out, but changed that policy when a number of the drivers failed to return promptly after their prayers.

Coalition Seeks Information On Faith-Based Hiring By Federal Grantees

The Coalition Against Religious Discrimination (CARD) is a group of over 50 religious, civil rights and public policy organizations that has been encouraging the Obama administration to require all recipients of federal grants and contracts to observe a strict non-discrimination policy in hiring for positions funded with federal dollars.  However, despite statements supporting non-discrimination President Obama has not rescinded Executive Order 13279 issued in 2002 by President George W. Bush permitting religious organizations that receive federal funds to use religious criteria in their hiring. (See prior posting.) Joshua DuBois, head of he White House Office of Faith-Based and Neighborhood Partnerships has said that the question of whether a grantee may engage in faith-based hiring is being handled on a case-by-case basis. So yesterday, according to a press release from Americans United, CARD wrote identical letters (full text) to the Faith-Based Partnership Office in each of over a dozen federal departments and agencies seeking more information on this case-by-case approach.  The letters ask for details of the review process, the criteria applied and the facts and results in each case.

6 Republican Candidates Address Republican Jewish Coalition

Six Republican presidential candidates addressed the Republican Jewish Coalition in Washington, D.C. yesterday.  Candidate Ron Paul was not invited by the RJC because of his views on Israel, though Paul says those views are being characterized unfairly. (CNN report.)  Videos of the address by each of the six candidates are available from this page on C-Span's website. The candidates focused heavily on U.S. policy toward Israel and the threat to Israel and the U.S. of a nuclear Iran. Reporting on the candidate forum, the New York Times said:

One reason Republicans seek to sound serious on Israel is to appeal to evangelical Christians who make up large portions of the Republican primary voters in South Carolina and the caucusgoers in Iowa. Down the road, they also know that Jewish voters are critical to victory in general election swing states like Pennsylvania and Florida.

But just as the candidates have staked out hard positions on Israel, they have also moved to the right on other issues, a shift that Democrats say calls into question their appeal to a wide swath of Jewish voters.

New Rick Perry Ad Attacks Obama on Religion

Candidate Rick Perry released an 30-second ad today attacking what he called "Obama's war on religion." In the ad, he says:

I’m not ashamed to admit that I’m a Christian, but you don’t need to be in the pew every Sunday to know there’s something wrong in this country when gays can serve openly in the military but our kids can’t openly celebrate Christmas or pray in school.

As president, I’ll end Obama’s war on religion. And I’ll fight against liberal attacks on our religious heritage.

Faith made America strong. It can make her strong again.

The Washington Post's report on the ad carries the full text and the video of the ad. CBS News reports on criticism of the ad by the Log Cabin Republicans, a group that represents the interests of gay and lesbian Republicans.  The Perry ad was also strongly criticized by the Interfaith Alliance and and the Human Rights Campaign.

Rabbi, Former Jail Chaplain, Settles Paying $2500 Fine For Taking Gift

In a settlement with the New York City Conflicts of Interest Board on Monday, Rabbi Leib Glanz, former New York City jail chaplain, agreed to a $2500 fine.  As reported by the New York Times and JTA, the fine grew out of a much-publicized 2008 Bar Mitzvah celebration that Glanz helped inmate Tuvia Stern hold for his son in the Manhattan Detention Complex ("The Tombs") after a judge refused to grant Stern a furlough to attend his son's Bar Mitzvah outside of jail. (See prior posting.)  While Glanz cleared the Bar Mitzvah celebration with Department of Corrections officials, publicity about the event created a furor that led to Glanz's resignation and disciplinary action against several corrections officials. At the Bar Mitzvah celebration, Stern presented Glanz with a plate and a silver Kiddush cup worth $500. Glanz says he initially refused the gifts, but then took them in order to avoid offending the family after being pressed to do so by the family and other guests.  Glanz, who was once a powerful Satmar rabbi with political connections, has been charged in an unrelated case with theft and conspiracy for taking $22,000 in Section 8 housing subsidies.