No Free Exercise or Title VI Claims Shown In Campus Anti-Israel Activity

In Felber v. Yudof, (ND CA, Dec. 22, 2011), a California federal district court rejected claims by a Jewish student and a recent Jewish graduate of the University of California Berkeley that university officials have permitted "a dangerous anti-Semitic climate" to develop on University of California campuses.  Plaintiffs claim that officials have failed to adopt policies and procedures to protect Jewish students from threats and harassment by two student groups, the Muslim Student Association and Students for Justice in Palestine. In particular, the complaint focuses on harassment by these student groups during the anti-Israel "Apartheid Week" in 2010.  Rejecting plaintiffs' free exercise claim, the court held that even if anti-Semitic acts can be deemed an interference with the free exercise of religion, University officials have no constitutional obligation to prevent private parties from interfering with the constitutional rights of others.  The court also rejected plaintiffs' claims under Title VI of the 1964 Civil Rights Act. While Title VI might obligate the University to regulate the conduct of other students, to succeed plaintiffs would need to show conduct that is, “so severe, pervasive, and objectively offensive that it denies its victims the equal access to education.”  Here much of the conduct was political speech; much of it took place outside the presence of plaintiffs; and plaintiffs have not alleged denials of access to the University's educational services in any meaningful sense. Finally plaintiffs have not alleged that University officials acted with deliberate indifference. In dismissing the Title VI claims, the court gave plaintiffs' the right to file an amended Title VI complaint against the Regents and the individual defendants.

By deciding the case on these grounds, the court largely avoided having to deal with two other difficult legal issues that might be posed: (1) When does anti-Israel activity become anti-Semitism?; and (2) Does the prohibition in Title VI against racial (but not religious) discrimination in access to federally funded educational programs cover anti-Semitic denials? (See prior related posting.)

The University issued a release on the decision, saying in part: "UC Berkeley is committed to maintaining an inclusive and respectful campus environment that is safe and welcoming for everyone, without regard to religion, race, ethnicity or ideology. The university is also committed to enforcing the law and protecting the rights of free expression for every single member of the campus community, and we are pleased that the suit has recognized our efforts in this area."

Protesters In Maldives Want Stricter Islamic Limitations

AP reports that over 3,000 people-- at the call of the opposition Justice Party and other groups-- protested in the capital of the Maldives on Friday, calling on the government to end "anti-Islamic" activities.  Protesters want an end to the sale of alcohol, the closing of brothels operating as massage parlors, destruction of monuments (seen as idols) presented by other countries to the Maldives last month for a South Asian summit (see prior posting), and scrapping of proposed direct flights to Israel. Maldives President Mohammad Nasheed however said he supports the moderate brand of Islam that has traditionally been practiced in the country.  He said: "We can't achieve development by going backwards to the stone age or being ignorant."

Court OK's Proposed Nevada Fetal Personhood Initiative After A Rewrite

In Chen v. Nevada Prolife Coalition, (NV Dist. Ct., Dec. 19, 2011), a Nevada state trial court allowed an advocacy group to move ahead with attempts to obtain enough signatures to place a proposed fetal personhood constitutional amendment on the 2012 ballot. The proposed amendment reads:

The intentional taking of a prenatal person's life shall never be allowed in this State.... [T]he term "prenatal person includes every human being at all stages of biological development before birth.

The court rejected a claim that the proposed amendment is invalid because it embraces more than one subject. However the court did require that the petition language describing the effect of the amendment be rewritten before petitions are circulated.  The court set out the language that must be used in the new description. It reads in part:

All person are endowed by their creator with certain unalienable rights including the right to life. This initiative proposes to add a new section to the Nevada Constitution to protect a prenatal person's right to life.... The initiative would ... prevent all abortions even in the case of rape, incest or serious threats to the woman's health or life.... The initiative will impact some rights Nevada women currently have to utilize some forms of birth control, including the "pill;" and to access certain fertility treatments such as in vitro fertilization. The initiative will affect embryonic stem cell research, which offers potential for treating diseases such as diabetes, Parkinson's disease, heart disease and others.

According to a report from the American Independent, proponents must obtain 72.352 valid signatures by June. Last year, a Nevada state court struck down attempts to circulate petitions for a different version of a personhood amendment (see prior posting) and the state Supreme Court dismissed an appeal as moot (see prior posting).

FLDS Members May Be Evicted If They Refuse To Pay Taxes On Trust Property

While the federal courts are deciding whether Utah courts acted constitutionally in issuing orders to reform the United Effort Plan Trust of the FLDS Church (see prior posting), a Utah state court last week ruled that the court-appointed fiduciary for the trust can evict residents who have not paid property taxes and occupancy fees on homes owned by the Trust which they occupy.  Around 143 of the 176 parcels in the twin towns of Hildale, Utah, and Colorado City, Ariz. have some back taxes due on them. Thursday's Salt Lake Tribune reports that court-appointed fiduciary Bruce Wissan fears that if action is not taken, some of the properties will go up for tax sales within 18 months.  He says that rather than losing the properties, he will allocate them to other individuals who will pay taxes and fees. The tax situation is complicated by the fact that some parcels contain several homes, so that a delinquency by one places the entire parcel in arrears.  Also, residents hesitate to pay the back taxes because if a federal court decision invalidating Utah's reformation of the Trust is upheld, particularly the non-FLDS members who have been allocated homes may lose them when Trust administration is returned to the Church. (See prior related posting.)

Canadian Court Says Botched Ritual Circumcision Was Aggravated Assault

In Regina v. D.J.W., (B.C. Ct. App., Dec. 22, 2011), the British Columbia Court of Appeal held that a father who botched an attempt at home to perform a religious circumcision on his 4-year old son should have been convicted of assault with a weapon and aggravated assault instead of "criminal negligence causing bodily harm".   (See prior posting.) Defendant performed the circumcision after doctors refused on the ground that a general anesthesia would be necessary and could not be justified for a 4-year old. Defendant raised a religious freedom defense, but the court responded:

The religious views of the accused are not impeded by the provisions of the Criminal Code in issue in this case. The accused’s religion did not demand that the circumcision be performed by the accused himself, nor did the trial judge find that religious necessity dictated that the circumcision be performed immediately so that the accused was left with no alternative but to perform the operation himself. Thus, it is not the accused’s religious beliefs that are at issue, but the rights and best interests of D.J. with respect to whether he should have been subjected to an attempted circumcision by his father in the circumstances and conditions under which it was attempted.

Canadian Press reports on the decision.

Junior ROTC Cadets Can Now Wear Religious Head Coverings

The Department of Defense has agreed to change its Army Junior ROTC uniform policy to permit Cadets to request to wear religious head coverings, such as the Sikh turban or Muslim hijab. The policy change comes after a 14-year old high school student in Tennessee was forced to transfer out of her JROTC class because her commanding officers refused to allow her to wear her hijab while marching in the September homecoming parade. A CAIR press release yesterday quotes a letter from the Deputy Assistant Secretary of the Army announcing the new policy.

Suit Seeks Placement Of Winter Solstice Anti-Religion Sign Next To Creche

The Freedom From Religion Foundation yesterday announced the filing of a federal court lawsuit against the city of Warren, Michigan in an attempt to require the city to place an FFRF Winter Solstice sign next to a nativity scene that is already on display in the Warren Civic Center. The sandwich-board sign reads in part: "Religion is but myth and superstition that hardens hearts and enslaves minds."  The full text of the complaint, motion for preliminary injunction and brief in support of the motion in Freedom from Religion Foundation, Inc. v. City of Warren, Michigan, (ED MI, filed 12/22/2011), recounts FFRF's efforts to have its sign displayed.  The mayor of Warren refused FFRF's request to display the sign, saying that it "is clearly anti-religion and meant to counter the religious tone of the Nativity Scene, which could lead to confrontations and a disruption of city hall." The complaint alleges that the Nativity Scene violates the Establishment Clause; and that refusal to display FFRF's sign violates the free speech clause of the 1st Amendment as well as the 14th Amendment's Equal Protection Clause.

Settlement Is Reached In Suit By Nurses Asserting Conscience Rights In Assisting On Abortions

AP reports that a settlement has been reached in Danquah v. University of Medicine and Dentistry of New Jersey, a suit filed last month by a group of nurses who claim that the University of Medicine and Dentistry of New Jersey has demanded that they assist in abortions in violation of their religious objections. (See prior posting.)  Under the settlement which was mediated by U.S. District Judge Jose Linares, 12 nurses in the same-day surgery unit will retain their current positions and, with a limited exception, will not be required to assist in any part of an abortion procedure. If there is a life-threatening emergency and no non-objecting staff members are available, then the nurses will be required to assist, but only until another staff member can be brought in.

Christian College Sues Over Health Care Mandate To Cover Contraceptives and Sterilization

The Becket Fund announced this week the filing of a lawsuit by Colorado Christian University (CCU) challenging on free exercise, free expression and other grounds regulations issued under the Affordable Care Act that require health care plans to cover all FDA-approved contraceptive methods and sterilization procedures. The plans must also cover related education and counseling.  While the regulations contain an exemption for certain religious employers (see prior posting), the exemption is too narrow to cover universities whose purpose is not limited to the inculcation of religious values. The complaint (full text) in Colorado Christian University v. Sebelius, (D CO, filed 12/22/2011), seeks a declaration that enforcement of the regulations against CCU violates the 1st Amendment and the Religious Freedom Restoration Act, and that the regulations were issued in violation of the Administrative Procedure Act. It also seeks an injunction against enforcement of the regulations against religious organizations that object to providing insurance coverage for contraceptives (including  abortifacient contraceptives) and sterilization. A similar lawsuit was filed last month by a Benedictine Catholic University (see prior posting); however CCU is the first interdenominational Christian college to bring such a suit.

Court Lacks Authority To Order Husband To Give Jewish Divorce Document

In Lowy v. Lowy, (NJ App., Dec. 21, 2011), a New Jersey appeals court held that a trial judge lacked authority to order defendant husband to give a get (Jewish divorce document) to his wife where the husband was under no contractual obligation to do so. While the parties had submitted their dispute to a Jewish religious court (Bais Din), that religious arbitration panel did not order the husband to give his wife a get. The court held:

Once the Bais Din decree is eliminated as a source of authority for the judge's August 27, 2010 enforcement order -- as it must be -- the order cannot be sustained because it constitutes impermissible judicial involvement in a matter of religious practice.

Under Jewish religious law, a get can only be issued with the cooperation of the husband, and the wife may not remarry in a traditional Jewish religious ceremony if she has not received a get. [Thanks to Steven H. Sholk for the lead.]

Court Again Rules For Seventh Day Adventist Church In Zoning Dispute

In Reaching Hearts International, Inc. v. Prince George's County, 2011 U.S. Dist. LEXIS 146495 (D MD, Dec. 21, 2011), a Maryland federal district court ordered Prince George's County (MD) Council to reconsider its partial denial of a water and sewer service category change for a church building that a Seventh Day Adventist organization wished to construct.  As reported by the Washington Examiner this week, plaintiffs already won a $3.7 million religious discrimination judgement against the county in 2008 for its actions that prevented the church from obtaining clearance to build. Apparently the refusal was motivated at least in part by the views of one Council member who believed that no more churches were needed in the area. (See prior posting.) In its decision this week, the court said: "The reasons given by the County for its initial denial of RHI's 2010 Application closely mirror the reasons previously given for all of its actions at issue in the 2008 trial which were rejected by the jury's verdict and this Court's order."

2d Circuit: Res Judicata Bars Relitigation of Moorish Officers Dismissal

In Bey v. City of New York, (2d Cir., Dec. 19, 2011), the U.S. 2nd Circuit Court of Appeals dismissed on res judicata grounds a suit by two New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes.  Appellants were dismissed from their Department of Corrections positions for filing false tax documents with the intent to defraud.  The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions that give rise to the constitutional challenge to plaintiffs' suspension and termination in this case.

Cert. Filed In Idaho Charter School Board Ban On Religious Texts In Classrooms

Alliance Defense Fund announced yesterday that it has filed a petition for certiorari (full text) with the Supreme Court in Napa Classical Academy v. Goesling. In the case, the 9th Circuit upheld the action of the Idaho Public Charter School Commission in barring publicly funded schools from using relgioius texts in the classroom, even for teaching of secular subjects.  The 9th Circuit held that the First Amendment’s speech clause does not give charter school teachers, students, or parents a right to have such texts included as part of the school curriculum. (See prior posting.)

Russian Local Prosecutor Attempting To Ban Sacred Hindu Text As Extremist

CNN reports that in the Russian city of Tomsk, a court has  postponed until Dec. 28 its decision on an attempt by the prosecutor to ban the Bhagavad Gita as an extremist book that sows social discord. The court in August appointed a 3-member academic panel to submit a report to it. The Indian ambassador to Russia has objected to the prosecutor's attack on one of Hinduism's most important texts. The Hindu American Foundation says that prosecutors have taken words from the Gita out of context. Alexander Kadakin, Russia's ambassador to India, said: "It is not the Russian government that started the case. These are some petty people in the far away though very beautiful city of Tomsk who did it. The government ... can only testify and reiterate the love and affection and highest esteem our nation has for Bhagavad Gita."

UPDATE: A Dec. 23 report from Interfax says that the Tomsk prosecutor is not going after the text of the Bhagavad Gita, but instead the Russian-language edition of the Bhagavad Gita As It Is, and especially the accompanying commentary written in 1968 by the founder of the International Society for Krishna Consciousness, A. C. Bhaktivedanta Swami Prabhupada.

Refusal To Discuss Sabbath Accommodation For Correctional Officer Violates Title VII

In Schutte v. Department of Corrections, (CO Pers. Bd., Dec. 19, 2011), a Colorado State Personnel Board administrative law judge held, in an initial decision, that a state correctional facility illegally discriminated against a Messianic Jewish correctional officer by refusing to accommodate his religious need to have Friday nights and Saturdays off from work.  The opinion concluded that the complainant's supervisors violated Title VII of the federal 1964 Civil Rights Act by refusing to engage in an interactive process once complainant raised the scheduling issue. KSUA News reports on the decision.

Quebec Will Allow Jail and Courthouse Guards To Wear Hijab

Canadian Press reported yesterday that Quebec's Public Service Department has reached a settlement with the province's human rights commission that will allow female Muslim correctional officers who guard jails and courthouses to wear a hijab (headscarf). The government will provide the head covering to those officers who request it. The settlement grew out of a discrimination complaint filed in 2007.  The opposition  Parti Quebecois strongly criticized the settlement.

Indian Court Tells Social Networking Sites To Remove Anti-Religious Content

In New Delhi, India yesterday, a court issued an ex parte restraining order requiring 22 social networking websites to remove videos, text and photos with anti-religious or anti-social content that promote hatred or communal disharmony. PTI reports that the defendants include Facebook, Google and Youtube. The order came in a civil suit filed by Mufti Aijaz Arshad Qasmi and amidst reports that India's Telecommunications Minister had asked the websites to screen their content. Apparently the order covers content that was included on a CD filed in the lawsuit by plaintiff.  Defendants are to respond to the court's order by Dec. 24.

UPDATE: Economic Times reports that at the Dec. 24 hearing, the court again ordered removal of anti-religious and anti-social content on 22 social networking websites and directed the companies to file compliance reports by Feb. 6.  Only Yahoo India Pvt Ltd and Microsoft appeared a the hearing, and they said they had not yet received a copy of the complaint or the original court order. Counsel for the complainant assured the court that he would provide them with copies.

National Menorah Lit In D.C. As Hanukkah Begins

Last night marked the beginning of the Jewish holiday of Hanukkah. AP reports on how Washington ushered in the holdiay:

Thousands turned out for a special ceremony marking the first night of Hanukkah. "The President's Own" U.S. Marine Band performed as the National Menorah, situated on the Ellipse near the White House, was lit.

Time traces the transformation of Hanukkah from a minor Jewish holiday to perhaps the most celebrated Jewish holiday in America.

UPDATE: Also yesterday, President Obama sent Hanukkah greetings to all those around the world celebrating the holiday. (Full text of statement.)

Preliminary Injunction Protects Street Preachers At Holiday Festival In Park

In Jankowski v. City of Duluth, (D MN, Dec. 20, 2011), a Minnesota federal district court granted a preliminary injunction to prevent city of Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights.  The Tour is a holiday festival held each year on city property, Bayfront Festival Park, and is sponsored by a private non-profit group. The court concluded that Bayfront Festival Park is a traditional public forum, and it remains so when a private group uses it to host an event that is free and open to the public. The court concluded that the city had failed to set forth any interest that is furthered by its enforcing the non-profit sponsor's ban on plaintiffs' 1st Amendment activities. A Dec. 13 magistrate judge's decision in the case had likewise recommended granting a preliminary injunction. An Alliance Defense Fund press release reports on the court's decision. (See prior related posting.)

UN General Assembly Adopts Resolution Against Religious Intolerance, Without Mentioning Defamation of Religion

On Dec. 19, according to a United Nations press release, the U.N General Assembly:

adopted a new text on combating intolerance, negative stereotyping, stigmatization, discrimination, and incitement to violence against persons, based on religion or belief, ... [proposed] on behalf of the Organization of Islamic Cooperation (OIC).  By that text, it strongly deplored all acts of violence against persons on the basis of their religion or belief, as well as all attacks on and in religious places, sites and shrines in violation of international law.

Human Rights First noted yesterday that, unlike past resolutions, this one avoids the concept of "defamation of religion."