A Bibliography Plus Forthcoming Books of Interest

The Association of American Law Schools Section on Law and Religion has issued its Annual Newsletter for 2011, containing an extensive bibliography of law-and-religion books and articles published during 2011, as well as a listing of relevant blogs.

Here are some just-published and forthcoming books that may be of interest to Religion Clause readers:

• John M. Barry, Roger Williams and the Creation of the American Soul: Church, State and the Birth of Liberty, (Viking Adult, Jan. 5, 2012), reviewed by the New York Times.
• Katherine Stewart, The Good News Club: The Christian Right's Stealth Assault on America's Children,(Public Affairs Books, Jan. 24, 2012).
• John D. Brewer, Gareth I. Higgins & Francis Teeney, Religion, Civil Society, and Peace in Northern Ireland, (Oxford Univ. Press, Dec. 2011).
• Jeremy Waldron, The Harm in Hate Speech, (Harvard Univ. Press, May 2012).
• Michael P. Winship, Godly Republicanism: Puritans, Pilgrims, and a City on a Hill, (Harvard Univ. Press, April 2012).
• Melanie Heath, One Marriage under God: The Campaign to Promote Marriage in America, (NYU Press, April 2012).
• Yunas Samad, The Pakistan-US Conundrum: Jihadists, the Military and the People–The Struggle for Control, (Columbia Univ. Press, Dec. 2011).
• Amanda Porterfield, Conceived in Doubt: Religion and Politics in the New American Nation, (Univ. of Chicago Press, May 2012),

Recent Prisoner Free Exercise Cases

In Shaw v. Parker, 2011 U.S. Dist. LEXIS 148286 (D DE, Dec. 27, 2011), a Delaware federal district court dismissed an inmate's complaint that his rosary beads had been confiscated, finding that the strength of the cord posed a security threat. They were returned and then retaken. The court ordered plaintiff why the complaint about this should not be dismissed for non-prosecution.

In Hennis v. Tedrow, 2011 U.S. Dist. LEXIS 148316 (WD PA, Dec. 27, 2011), a Pennsylvania federal district court dismissed 8th Amendment and equal protection claims by a Rastafarian inmate who claims he was ordered to cut his dreadlocks and that he was denied religiously-mandated vegetarian meals during a 2-day lock down.

In Johnson v. Williams, 2011 U.S. Dist. LEXIS 148445 (D OR, Dec. 22, 2011), an Oregon federal district court rejected an inmate's claim that the Establishment clause was violated by prison authorities' refusal to recognize Satanism as a religion. It also rejected a claim that his free exercise rights and his rights under RLUIPA were infringed when he was not permitted to possess The Satanic Bible. The court also upheld disciplining plaintiff for sending out White supremacist Nazi drawings.

In Smith v. Mohr, 2011 U.S. Dist. LEXIS 148579 (ND OH, Dec. 21, 2011), plaintiff is a Jewish prisoner who has purchased kosher meals from the commissary because he dislikes the prison's kosher meals. An Ohio federal district court rejected his claims that his rights were infringed when, after he was sent to the segregation unit for conduct offenses, he was denied access to the commissary or food stored in his cell and was limited to the prison's kosher meals.

In Abdul-Aziz v. Ricci, 2011 U.S. Dist. LEXIS 149163 (D NJ, Dec. 28, 2011), a New Jersey federal district court rejected an inmate's complaint that his rights were violated when prison authorities did not accept donated Halal meals with meat, and did not allow Islamic inmates to retain prayer oils in their cells. The court also found no evidence that the prison's vegetarian meals are contaminated with meat products.

Efforts Continue To Get Public Display of Washington's Letter To Newport Hebrew Congregation

The Forward last week reported on efforts to restore to public view an important document in the history of religious freedom in the United States-- George Washington's Letter to the Hebrew Congregation in Newport, Rhode Island. In the 1790  letter, Washington says:

It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights. For happily the Government of the United States, which gives to bigotry no sanction, to persecution no assistance requires only that they who live under its protection should demean themselves as good citizens, in giving it on all occasions their effectual support.

The letter is owned by the Morris Morgenstern Foundation which is controlled by reclusive private collector Richard Morgenstern.  Until 2002, the letter was displayed, on long-term loan, at the B'nai B'rith Klutznick National Jewish Museum in Washington, D.C.  That museum closed in 2002 and its contents-- apparently including the famous letter-- were placed in storage.  The National Museum of American Jewish History and the Library of Congress have both tried to persuade Morgenstern to again place the letter on public display. Apparently the Library of Congress is still negotiating on the matter.

TRO Denied To Churches Planning To Deny Use For Civil Unions-- Claim Is Non-Justiciable

In Emmanuel Temple v. Abercrombie, (D HI, Dec. 30, 2011), an Hawaii federal district court denied a temporary restraining order to prevent enforcement against two churches of Hawaii's public accommodation anti-discrimination laws. Plaintiffs feared enforcement based on their planned refusal to make their facilities available to those who might seek to use them for celebrating civil unions under Hawaii's civil union law that is effective on Jan. 1.  The court concluded that the churches' claim is not justiciable because their plans to violate the anti-discrimination law in the future are vague and any threat of enforcement of the law against them is highly speculative. (See prior related posting.) The Honolulu Star-Advertiser and Honolulu Civil Beat report on the decision.

Happy New Year 2012 To Religion Clause Readers!

Dear Religion Clause Readers:

Happy New Year! As we enter 2012, I want to again thank all of you who read Religion Clause-- both long time followers (some of you have been with me since the beginning), as well as those who have discovered the blog more recently. And thanks to all of you who send me leads to new developments or who alert me to needed corrections or to your concerns about coverage of particular developments. Your input is important in maintaining completeness and accuracy. I read all of your e-mails and appreciate receiving them, even though time constraints often prevent me from replying individually. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want mentioned, I will be happy to honor that request if you let me know when sending me information.

It has been a good year for Religion Clause blog. It was nominated by the American Bar Association as one of the top 100 legal blogs in 2011—the fourth time in five years it has made the list.  The site meter shows that the blog has attracted over 1,143,000 visits since I created it in 2005. Approximately 226,000 of these visits were registered in 2011. This is a decrease of a bit over 7%  compared to 2010.  That decline in visits appears to stem from changes that Google made to its Blog Search page, which no longer includes for everyone visiting it featured postings from popular blogs.  When Google included that in its design, Religion Clause often benefitted from the algorithm it used to select stories that would be featured.

Interested readers continue to have several ways to access Religion Clause—by directly connecting to the home page, connecting through a mobile device to a version formatted for Smart phones, subscribing to the RSS feed through any of the popular RSS readers, through e-mail subscriptions, on Kindle, through Twitter, through Facebook and on Newstex sources such as Lexis.  The Religion Clause sidebar has further information on these alternatives.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. I am pleased that my regular readers span the political and religious spectrum and include a large number of individuals working professionally dealing with church-state relations and religious liberty concerns.  I was approached twice this year by well-respected portals that wanted me to move Religion Clause to their sites.  Ultimately I decided against doing so in order to maintain Religion Clause’s unique identity.

I continue to be amazed that there is never a day when I am lacking for developments to report. I try to keep the mix interesting and relevant.  I urge you to continue to recommend Religion Clause to your friends and colleagues, and to share posts you like on Facebook and on other social media sites.  This can be done easily by opening the relevant post and clicking on the “Share” button at the bottom of the post.  If you have any general comments or suggestions for Religion Clause's upcoming year, feel free to e-mail me at religionclause@gmail.com.

Best wishes for 2012!

Howard M. Friedman

Maldives Government Response To Islamic Demands Has Complex Background

As previously reported, the government of the Maldives has responded to a December 23 Islamist protest led by opposition parties by ordering all hotel spas closed. Here is more information on the complicated religious-political-economic background and developments in this Island chain that is a popular high end tourist destination.

In 2008, Mohamed Nasheed became the first democratically elected president of the Maldives, defeating long-time President Abdul Gayoom in a run-off election. (Background.) In June 2010, thirteen members of Nasheed’s cabinet resigned en masse, protesting Parliament’s undercutting of government policies. On the same day, police arrested two members of Parliament on bribery charges. They were former President Gayoom’s half-brother. The other was Gasim Ibrahim, head of the Jumhooree Party and owner of a number of tourist resorts. Among the six opposition political parties supporting the pro-Islam demonstration last week was the Jumhooree Party. (Minivan News).

Responding to the demonstrations, the government initially ordered spas at 5 resorts owned by Gasim Ibrahim to close down on the ground that they were in fact engaged in prostitution. (Background). Gasim promptly sued, claiming that the order was issued without any investigation. The court cancelled the closure order while the case was pending. A government spokesman says Gasim is pretending to be a victim for political gain. (Minivan News.) Meanwhile the government expanded the closure order to include all spas and massage parlors, saying it did not know how to differentiate those that were prostitution fronts from those that were not. (Minivan News.) Now the government says it is also considering a ban the sale of alcohol and pork at tourist  resorts, both of which were also demands of the demonstrators. (Minivan News). Apparently alcohol sales are permitted now through the government declaring portions of inhabited islands to be "uninhabited". (Haveeru.) Those sales bring in substantial revenue to the government through its goods and services tax. (Dhonisaurus.) [Thanks to Bill Poser for part of the lead.]

Maldives Orders Resort Spas Closed After Islamic Protests

In the wake of protests last week in the Maldives by the opposition Adhaalat Party seeking an end to "anti-Islamic" activities (see prior posting), the Maldives government yesterday ordered hundreds of luxury hotels to close their spas.  On Islam reports on developments. The tourism industry is a vital part of the Maldives economy, drawing some 850,000 tourists each year to the islands whose total population is under 400,000.  High end resorts on secluded islands can cost tourists up to $12,000 per day.

Russian Orthodox Church Joins Those Critical of Russia's Parliamentary Elections

The New York Times reported yesterday that in Russia, the Russian Orthodox Church has surprisingly joined those that are critical of the recent parliamentary elections. The Church has generally been an ally of Prime Minister Vladimir Putin, but now Church leader Patriarch Kirill I, as well as prominent priests, are speaking out.

Suit Challenges Investigations Into Church Refusals To Host Civil Union Ceremonies

Hawaii's civil union law, permitting same-sex civil unions, enacted in February 2011 (see prior posting) takes effect January 1, 2012. On Wednesday, two Christian churches filed a lawsuit in Hawaii federal district court claiming that individuals who are planning civil union ceremonies have already filed complaints with the Hawaii Civil Rights Commission against churches that refuse to rent their facilities for same-sex civil union and marriage ceremonies. The complaint (full text) in Emmanuel Temple, The House of Praise v. Abercrombie, (D HI, filed 12/28/2011) claims that investigations launched by the Civil Rights Commission have a chilling effect on plaintiffs' free exercise of religion. HRS Sec. 489-3 prohibits discrimination on the basis of sexual orientation in places of public accommodation. Courthouse News Service reports on the filing of the lawsuit.

Zoning Settlement Reached With Unitarian Church

City officials in Wayzata, Minnesota have negotiated a settlement in a RLUIPA lawsuit filed against the city last year by the Unitarian Universalist Church of Minnetonka which has been trying to get  3-acres of land rezoned so it can build a new church. According to yesterday's Minneapolis Star Tribune, the church argued that its rights under RLUIPA and the 1st Amendment were being violated by the city's restrictive zoning ordinance that allows churches in only one of 22 districts.Under the settlement, the city and its insurance company will pay the church $500,000 in damages and attorneys' fees and will help the church acquire two small adjacent parcels of land now owned by the Minnesota Department of Transportation. The church will drop its lawsuit and work through the city's normal application and permitting process. City council must still approve the settlement at its January 17 meeting. After the conference at which the settlement was worked out, Wayzata mayor Ken Wilcox released a statement (full text) which read in part: "We believe the law supports our position and the City has right to control the planning and zoning within its borders through its long-established Comprehensive Planning process. However, it became clear that ending this expensive and detrimental proceeding was in the overall best interest of the citizens of Wayzata."

Many Muslim Leaders Will Boycott NY Mayor's Interfaith Breakfast

AP reports that 15 Muslim leaders will boycott today's annual interfaith breakfast sponsored by New York Mayor Michaael Bloomberg. The leaders are concerned with Bloomberg's support for a police program that gathered information by infiltrating Muslim neighborhoods and mosques. A letter (full text) signed by the 15 invitees and dozens of other Muslim, Jewish and Christian leaders, reads in part:

We believe with heartfelt conviction that during times when a community’s rights are being flagrantly violated its leaders cannot in good conscience appear at a public gathering with the government official who is ultimately responsible and smile for the cameras as if all is well, when we know full well that it is not.... 

This past August, the Associated Press released a series of investigative reports that detailed how, over the past decade since 9/11, the NYPD has been monitoring and profiling virtually every layer of NYC Muslim public life, often with no suspicion of wrongdoing.... According to the investigation, the police department monitored and collected information on New Yorkers at about 250 mosques, schools, and businesses throughout the city, simply because of their religion and not because they exhibited suspicious behavior.

Mayor Bloomberg, the extent of these civil rights violations is astonishing, yet instead of calling for accountability and the rule of law, you have thus far defended the NYPD’s misconduct.

The mayor's office says it still expects some two dozen Muslim leaders to attend the event which is designed to demonstrate the city's diversity.

Zambian Christians Want New Constitution To Reject Gays and Keep Christian Nation

The Christian Post and the Zambian Watchdog both report on a march that was planned for yesterday in Lusaka, Zambia by Christian groups who are demanding that the new constitution being drafted for the country not protect homosexuality. They also want to assure that the new document will retain the declaration of Zambia as a Christian nation that appears in the Preamble to the current Constitution. The demonstration was organized by the Christian NGO Rainbow Coalition, whose spokesman said: "This [homosexuality] is a new concept to our culture which Zambians will not entertain as in Zambia we do not even have local terminology for homosexuality." Between 50% and 75% of Zambians are Christians.

Teacher's Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Becker v. Clardy, (TX App., Dec. 22, 2011), a Texas appellate court applied the ecclesiastical abstention doctrine to dismiss a defamation action brought by a religion teacher in a Catholic parochial school against a fellow religion teacher.  Teacher Kenneth Becker claimed that teacher Carla Clardy made negative comments about him in front of students in her eighth grade religion class. Clardy resigned while an investigation of the incident by the school's principal and pastor was pending. At that point the investigation stopped. According to the court, Becker claimed only damage to his reputation within the Church community, and the substance of his claim was that Clardy violated the Diocese of Austin Policies on Ethics and Integrity in Ministry. Finding that application of the ecclesiastical abstention doctrine is not limited to suits against authority figures, the court concluded:

Becker chose not to sue the school for its lack of action against Clardy, but brought his claims directly against Clardy. A civil court action resolving Becker’s claims then would encroach on the church’s "ability to manage its internal affairs."

Palestinian Police Break Up Fight Between Priests At Church of the Nativity

CNN reports that yesterday Palestinian police in the West Bank city of Bethlehem were sent into the Church of the Nativity to break up a fight that broke out between Greek Orthodox and Armenian priests. The Church is under a complicated joint administration of Roman Catholic, Greek Orthodox and Armenian religious authorities.  The Church is traditionally cleaned by priests between December 25 and the Orthodox celebration of Christmas that comes in the first week of January. During that clean-up, a fight broke out between two priests who were sweeping the Church. The fight quickly escalated until 50 to 60 priests were striking each other with broomsticks. A similar incident occurred in 2007.

USCIRF Urges State Department To Press North Korea On Religious and Human Rights

With the recent death of North Korean leader Kim Jong Il, the U.S. Commission on International Religious Freedom this week wrote Secretary of State Hillary Clinton (full text of letter) urging the U.S. to press North Korea on human rights and religious freedom issues.  The letter reads in part:

The death of Kim Jong Il provides an important opening for clear U.S. leadership.... The growth of religion in North Korea continues to be a perceived threat to the legitimacy of the North Korean ruling family, including the chosen successor Kim Jong Un.  Anyone discovered engaging in clandestine religious activity is subject to discrimination, arrest, arbitrary detention, disappearance, torture, and public execution.... We urge the Administration to clearly signal to North Korea that future political, diplomatic, or economic inducements will require improvements in both human rights and nuclear security issues. 

Russian Court Says Krishna Holy Book Is Not "Extremist"

In Russia yesterday, the Leninsky District Court in the Siberian town of Tomsk dismissed a case brought by the state prosecutor that sought to ban as "extremist" literature a translation and commentary on the Bhagavad Gita. (See prior posting.)  The Hindu reports that the court found no grounds for recognising Bhagavad Gita As It Is, a sacred book of the International Society for Krishna Consciousness, to be extremist.  The court said it is "one of the interpretations of the sacred Hindu scripture, the Bhagavad Gita." Prosecutors had contended that the book created "social hatred" and promoted "violence against non-believers."

Court Allows Pregnancy Centers To Intervene In Establishment Clause Challenge To Informed Consent Abortion Law

In Planned Parenthood Minnesota v. Daugaard, 2011 U.S. Dist. LEXIS 148345 (D SD, Dec. 27, 2011), a South Dakota federal district court permitted two South Dakota crisis pregnancy centers to intervene as defendants in a lawsuit challenging on Establishment Clause and free speech grounds the 2011 changes to South Dakota's informed consent abortion law. The court has already granted a preliminary injunction in the case. The challenged amendments require abortion providers to refer women to a "pregnancy help center" before performing the abortion.  A pregnancy help center is defined as an entity that does not perform abortions and which has as one of its principal missions the providing of education and counseling "to help a pregnant mother maintain her relationship with her unborn child and care for her unborn child." Intervenors are two of the three organizations that have registered as pregnancy help centers. The court however placed limitations on the scope and form of intervenors involvement in the case.

6th Circuit: Kentucky High School Athletic Rule Does Not Discriminate On Basis of Religion

In Seger v. Kentucky High School Athletic Association, (6th Cir., Dec. 21, 2011), the U.S. 6th Circuit Court of Appeals upheld a bylaw of the Kentucky High School Athletic Association designed to prevent member schools from recruiting student athletes by "paying" them to play at the school. The rule limits merit-based scholarships to 25% of tuition and bars accepting aid from sources not under control of the school or its governing board.  Plaintiffs argued in part that the bylaw is discriminatory on the basis of religion because it groups Catholic schools into one classification.  The court rejected the argument, concluding that the bylaw uses the grouping merely as a way to group Catholic schools into a broader category of non-public schools and to define their governing board as the archdiocese in which they are located.

Israeli Prime Minister Orders Action Against Ultra-Orthodox Intimidation Over Modest Dress

On Sunday, The Forward reported that Israeli Prime Minister Benjamin Netanyahu has ordered Israel's Interior Ministry to take strong action against a group of ultra-Orthodox Jews in the town of Beit Shemesh. A television report last week focused public attention on the plight of young girls attending the modern Orthodox Orot Banot school in Beit Shemesh.  Since the school opened last September, girls attending have been cursed and even spit on by a group of extremist Haredi (strictly Orthodox) Jews who believe that the girls' are not dressing modestly enough. The same Haredi are also pushing for gender-segregated bus lines and the designation of parts of the city where women and men would walk on separate sides of the street. A television report on an 8-year old who feared walking the short distance to school has galvanized public sympathy. The mayor of Beit Shemesh ordered city workers to remove signs that directed women to cross the street and not linger in front of a synagogue.  When workers did so, a group of Haredim threw rocks at them and called the municipal workers "Nazis."

At last Sunday's Cabinet meeting, Prime Minister Netanyahu spoke about the issue (full text of remarks), saying in part: "Israel is a democratic, Western, liberal state. The public sphere is open and safe for everyone - men and women alike. There is no place for harassment or discrimination.... The Israel Police are taking, and will take, action to arrest and stop those who spit, harass or raise a hand."

Top 10 Church-State and Religious Liberty Developments For 2011

Here are my nominations for the 2011 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. I have linked to representative postings on each issue:

1. Legalization of same-sex marriage expands, as religious objections continue to be voiced loudly.  New York passed a same-sex marriage statute and the Obama administration announced it would no longer defend the constitutionality of DOMA while the Defense Authorization Bill assured that military chaplains would not be forced to perform same-sex marriages. Meanwhile litigation over California's Proposition 8 continues and some Catholic social service agencies in Illinois end foster-care and adoption programs to avoid placement with couples in same-sex civil unions.

2. Christian crosses on public property become the focus of litigation. Utah Highway Patrol Association memorial crosses on public property violate the Establishment Clause (10th Circuit). Supreme Court review is denied over dissent by Justice Thomas. The Mt. Soledad Memorial cross violates the Establishment Clause (9th Circuit) and Sunrise Rock Cross litigation continues after a fragmented Supreme Court decision last year.

3. Under pressure from Western countries, the United Nations Human Rights Council and General Assembly pass freedom of belief resolutions that move away from the concept of "defamation of religion."

4. The Supreme Court in Snyder v. Phelps holds that the 1st Amendment protects offensive anti-gay funeral picketing by members of the Westboro Baptist Church.

5. Religion remains an important issue in the battle for the Republican presidential nomination.  Mitt Romney's Mormon faith raises questions for some Christians, while Republican debates have included significant discussion of candidates' attitudes toward church-state matters, religious liberty and Muslims in America.

6. Uncertainty remains on the role of religion in Egypt in the wake of its Arab Spring uprising.  Will religious liberty be assured for Christian Copts? What role will Shariah law play in the country's new constitution and legal system?

7. A measure to ban circumcision makes it onto the San Francisco ballot until a court forces it off on state pre-emption grounds. The proposal was seen by many as reflecting anti-Semitism.

8. The Supreme Court interprets standing narrowly in rejecting an Establishment Clause challenge to Arizona tax credits for contributions to organizations that provide scholarships to private and religious schools. The case is Arizona Christian School Tuition Organization v. Winn.

9. A Canadian trial court upholds Canada' anti-polygamy law against challenges under the Charter of Rights and Freedoms, except for prosecution of minors under the statute.

 10. The Supreme Court in Sossamon v. Texas holds that states which accept federal funding for their prisons retain sovereign immunity to monetary damage claims under RLUIPA.

For comparison, here is a roundup of top 2011 religion developments from BJC blogger Don Byrd  I invite your e-mails (religionclause@gmail.com) if you disagree with my picks.