10th Circuit Says Oklahoma Anti-Sharia Amendment Violates Establishment Clause

In Awad v. Ziriax, (10th Cir., Jan. 10, 2012), the 10th Circuit Court of Appeals affirmed a federal district court's  preliminary injunction (see prior posting) preventing the Oklahoma state election board from certifying voter approval of an anti-Sharia constitutional amendment. The so-called "Save Our State" Amendment provides that Oklahoma courts may not look to the legal precepts of other nations or cultures, and specifically cannot consider international law or Sharia Law.  The 10th Circuit held that plaintiff, a Muslim, has standing to challenge the amendment, saying:

We conclude that Mr. Awad’s allegation—that the proposed state amendment expressly condemns his religion and exposes him and other Muslims in Oklahoma to disfavored treatment—suffices to establish the kind of direct injury-in-fact necessary to create Establishment Clause standing.

In finding that the amendment violates the Establishment Clause the court applied "strict scrutiny" because the amendment discriminates among religions.  The court concluded:

Given the lack of evidence of any concrete problem, any harm Appellants seek to remedy with the proposed amendment is speculative at best and cannot support a compelling interest. “To sacrifice First Amendment protections for so speculative a gain is not warranted . . . .”

The Los Angeles Times reports on the decision.

Kentucky Governor Rejects Hospital Merger That Posed Establishment Clause Issues

Lexology reports that last week Kentucky Gov. Steve Beshear announced that he will not approve a proposed merger of several hospitals that includes the merger of the University of Louisville Medical Center with several other hospitals that are currently subject to the Ethical and Religious Directives (ERD) for Catholic Health Care Services.  His decision follows a report (full text) by Kentucky Attorney General Jack Conway recommending against approval, in part because of the complexity of the Establishment Clause issues involved. While many aspects of the merger raised questions, one has been the influence of Catholic religious guidelines on the University hospital. Here is a portion of the Attorney General's comment on a provision in the agreement that University hospital would no longer perform sterilizations (including tubal ligations) and would not dispense contraceptives:

Opponents of the proposed merger argue that approval of the transaction will have the impermissible effect of advancing religion by authorizing and requiring a public, state-owned hospital to be governed by the Catholic Church's religious directives.... The vagueness surrounding the ERD issue ... may likely set the stage for a constitutional challenge of the consolidation.... [T]he Attorney General is not yet in a position to opine as to whether the proposed consolidation satisfies the United States and Kentucky Constitutions....In any event, such litigation would undoubtedly be lengthy and would require the use of valuable state resources to defend.

Settlement of Lawsuit Will Allow DC Special Elections To Avoid Religious Holiday Conflicts

The Washington Post reports that last week a settlement was reached in a lawsuit that Rabbi Shmuel Herzfeld brought last year against the District of Columbia over the scheduling of special elections in conflict with religious holidays.  The city charter currently requires that any special election be scheduled the first Tuesday that is 114 days after a vacancy is declared. This resulted in a 2011 special election for a Council member and two school board members to be scheduled on the 8th day of Passover. (See prior posting.) Under the settlement, D.C. Mayor Vincent Gray will submit a charter amendment to D.C. Council and D.C. voters that will give the Board of Elections and Ethics discretion to avoid this sort of conflict by allowing the election to be scheduled between 100 and 130 days after a vacancy is declared.

India's Election Commission Proposes Action Against Cabinet Minister Over Election Promise To Muslims

In India, as previously reported, a December 2009 Report of the National Commission for Religious and Linguistic Minorities recommended that Parliament change its present scheduled caste set-asides and add a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. In December 2011, the government said it will create a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities. (See prior posting.) Yesterday PTI reported that Salman Khurshid, Cabinet Minister of the Ministry of Law and Justice, speaking at an election rally in Uttar Pradesh where his wife is running for a seat in the state's legislative assembly promised that the Congress Party-- his and his wife's party-- would create a 9% sub-quota for minorities and this would help Muslims. This led India's Election Commission yesterday to issue orders to Khurshid (full text) and his wife to show cause why action should not be taken against them for violating India's Model Code of Conduct that provides: "No party or candidate shall indulge in any activity which may aggravate existing differences or create mutual hatred or cause tension between different castes and communities, religious or linguistic."

UPDATE: The Chandigarh, India Tribune (1/11) reports that the Election Commission has issued an order asking the Ministry of Personnel and Training to hold off on implementing the announced 4.5% sub-quota until the election process in the states of Punjab, Uttar Pradesh, Uttarakhand, Goa and Manipur is over.

New York Regents Give Religious Schools Conscience Exemption To Teaching Tolerance

Last year, New York enacted the Dignity for All Students Act, effective July 1, 2012. (See prior posting.) In addition to prohibiting bullying, the law (Educ. Law Sec. 801-a) requires schools to include in their K-12 curriculum instruction in tolerance and respect for others of  different  races,  weights, national origins, ethnic  groups,  religions,  religious  practices,  mental  or  physical   abilities, sexual orientations, genders, and sexes. According to Yeshiva World, on Monday the New York Board of Regents voted to exempt yeshivas and parochial schools from this requirement to the extent that the school has a religious or moral objection to the requirement. Assemblyman Steven Cymbrowitz said that parents of students in such schools "may now feel secure that ... their children will not be subjected to lessons that are inconsistent with their religious doctrines."

Supreme Court Hears Oral Arguments On FCC Indecency Rules

The U.S. Supreme Court today heard oral arguments in FCC v. Fox Television Stations, Inc. (Transcript of oral arguments.) The case, which is of interest to many in the religious community, involves a constitutional challenge to the Federal Communications Commission's current policy barring indecency on radio and television broadcasts during prime time. The San Antonio Express-News and National Law Journal reports on the arguments.

Supreme Court Limits Prisoners' Bivens Actions

The U.S. Supreme Court today decided a case that may impact the right of prisoners in some cases to sue for infringement of their 1st Amendment right to the free exercise of religion.  In Minneci v. Pollard, (Sup. Ct., Jan. 12, 2012), the Court held, 8-1, that:

where ... a federal prisoner seeks damages from privately employed personnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law ..., the prisoner must seek a remedy under state tort law. We cannot imply a Bivens remedy in such a case.

SCOTUSblog reports on the decision.

West Virginia County's Funding of Jesus Fest Creates Controversy

The Harrison County West Virginia Commission is receiving conflicting advice on the constitutionality of its $2000 grant to Jesus Fest, a two-day festival in downtown Clarksburg. The festival has received the grant for the last 5 years. According to the Charleston Daily Mail last month, the funding comes from video lottery and table game revenue given to the county by the state which is used to fund festivals and community events. In a Dec. 22 letter (full text), the ACLU of West Virginia says that the funding violates the Establishment Clause as well as provisions of the West Virginia constitution that bar favoring any sect or denomination.  However a Jan. 5 letter (full text) from The Rutherford Fund argues that the funding is constitutional because the the county's program neutrally funds all types of community events without regard to their viewpoint.  The letter goes on to argue that the funding does not benefit religion, but instead covers costs of general festival expenses such as children's movies and a second stage. (Rutherford Institute press release.) The ACLU asked for a response by Jan. 6, but the county prosecuting attorney says he needs more time to study the issue. (WDTV News).

UPDATE: WDTV News reported on Jan. 19 that Harrison County Prosecuting Attorney Joe Shaffer ruled that the county's process for funding fairs and festivals such as the Jesus Festival is neutral and does not endorse religion or deny funding on the basis of religion.

8th Circuit En Banc Hears Arguments On Funeral Picketing Cse

Yesterday the U.S. 8th Circuit Court of Appeals en banc heard oral arguments in Phelps-Roper v. City of Manchester, Missouri. An audio recording of the full arguments is available online. In an October 5, 2011 opinion (full text), a 3-judge panel of the 8th Circuit held that a Manchester, Missouri ordinance that regulates protests near funerals is unconstitutional. The panel upheld the nominal damages and injunction granted to members of the Westboro Baptist Church who challenged the ordinance. Town and Country-Manchester Patch reports on yesterday's oral arguments.

Australia Modifies School Chaplaincy Program To Also Fund Secular Welfare Workers

In 2007, the Australian government began offering schools up to $20,000 per year to fund chaplaincy services. (See prior posting.) Around 2700 schools have received funding under the program. However,  the Australian Psychological Society argued that the program is dangerous to children's mental health because many children are seeking out chaplains rather than psychologists to deal with mental health problems. (See prior posting.)  According to today's Canberra Times, the government has now changed its guidelines so that schools can choose to use the money to employ secular welfare workers instead of chaplains-- an alternative that was previously available only if no chaplain could be found. So far of the 2512 schools that have reapplied for funding, only 8% of  have chosen this secular option, 89% are sticking with chaplains, and 3% are still deciding. Meanwhile a constitutional challenge to the entire chaplaincy program is still pending in the courts.

Vigilante Morality Police Attempt To Enforce Islamic Law In Rural Egypt

Bikya Masr reported this week that in rural towns in Egypt, vigilante gangs of conservative Salafi Muslim men have formed themselves into a Committee for the Promotion of Virtue and Prevention of Vice to enforce Islamic law.  They have been harassing shop owners and women, telling stores they should stop selling "indecent" clothing and telling barbers to stop shaving Muslim men. However when the self-styled morality police rushed into a beauty salon in the town of Benha, the women patrons struck back beating the men with their own canes and kicking them out into the street. Sheiks from Cairo’s Al Azhar mosque and university have denied the legitimacy of the vigilante groups, and the al Nour Party denied that it financed the morality police groups.

Egypt Charges Wealthy Coptic Politician With Blasphemy

The Los Angeles Times reported yesterday that in Egypt, Naguib Sawiris, chairman of Orascom Telecom and a major shareholder in the cell phone service provider Mobinil, has been charged by prosecutors with blasphemy and insulting Islam. He is to appear in court for a hearing on Jan. 14.  Sawiris, a Coptic Christian and a billionaire, heads the secular Free Egyptians Party which is expected to end up in third place with about 10% of the seats in the new parliament.  The charges against Sawiris stem from his posting a photo depicting a bearded Mickey Mouse and a veiled Minnie Mouse on his Twitter account last June. A group of Islamist lawyers filed a civil suit against him immediately after the cartoon was published. The photo at issue was reproduced yesterday by Arutz Sheva which reports that in the tweet publishing the cartoon, Sawiris joked that these Disney characters would be forced to dress modestly if Islamists took control of Egypt.

Police Officer Fired After Religious Refusal To Get Medical Help For Wife Sues

A former Lee's Corner, Missouri police officer, Caleb Horner, last week filed a federal lawsuit claiming that the police department's refusal to allow him to return to work amounted to religious discrimination.  According to yesterday's Kansas City Star, Horner and his common-law wife, Misty, believed in a “healing process that comes from God” rather than traditional medical treatment. In Dec. 2006, Misty gave birth at home to a stillborn infant.  31 days later Misty died, never asking for medical care.  During that time, Caleb refused pleas of friends and family to get medical help for Misty, saying that Misty wanted to rely on prayer.  Immediately after Misty's death, Caleb and others who shared his religious beliefs spent 14 hours trying to raise her from the dead by prayer. The police department fired Caleb for failing to promptly call the medical examiner when Misty died. Caleb's lawsuit says that his co-workers turned on him during his wife's illness. He asks for damages of at least $25,000.

Sincerity of Religious Beliefs May Be Explored In Moorish Americans' Challenge To Firings

In Bey v. City of New York, 2012 U.S. Dist. LEXIS 1743 (SD NY, Jan. 4, 2012), a New York federal district court ruled on 12 in limine motions in a case in which Moorish American plaintiffs are challenging their termination of employment by the New York Department of Corrections for filing false tax documents. Plaintiffs claim that "members of the Moorish American faith [cannot] be taxed without their voluntary consent."  Among the rulings on motions, the court held that "evidence of plaintiffs religious beliefs may be introduced. The objective truth or not of those beliefs themselves is not to be put in issue; defendants may, however, inquire into whether the beliefs are sincerely held and religious in nature." (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Andrew M. Koppelman, Justice Stevens, Religious Enthusiast, (Northwestern University Law Review, Forthcoming).
• Mason A. Binkley, A Loss for Words: 'Religion' in the First Amendment, (University of Detroit Mercy Law Review, Vol. 88, No. 2, p. 185, 2010).
• Alexa Døving, Sidra Shami, and Tore Lindholm, Religious Commitment and Social Integration: Are there Significant Links? A Pilot Study of Muslims in the Oslo Area with a Family Background from Pakistan, (University of Oslo Faculty of Law Research Paper No. 2012-01, 2012).
• John D. Inazu, Justice Ginsburg and Religious Liberty, (Hastings Law Journal, Forthcoming).

From SmartCILP:

• Shaheen Sardar Ali, Teaching and Learning Islamic law In a Globalized World: Some Reflections and Perspectives, 61 Journal of Legal Education 206-230 (2011).
• Bryna Bogoch and Yifat Holzman-Gazit, Clashing Over Conversion: "Who is a Jew" and Media Representations of an Israeli Supreme Court Decision, [Abstract], 24 International Journal for Semiotics Law 423-445 (2011).
• Christopher McCrudden, Multiculturalism, Freedom of Religion, Equality, and the British Constitution: The JFS Case Considered, 9 I.Con: International Journal of Constitutional Law 200-229 (2011).
• Iain McLean and Scot Peterson, Entrenching the Establishment and Free Exercise of Religion in the Written U.K. Constitution, [Abstract], 9 I.Con: International Journal of Constitutional Law 230-250 (2011).
• Symposium. Whom Should a Catholic Law School Honor?, 49 Journal of Catholic Legal Studies 223-292 (2010).

Recent Prisoner Free Exercise Cases

In Lizotte v. LeBlanc, (5th Cir., Jan 5, 2012), the U.S. 5th Circuit Court of Appeals dismissed on statute of limitations grounds a religious discrimination claim by a Muslim prison who claimed that he was not allowed out of his working cell block to attend Friday Muslim prayer services, even though Christian inmates with the same custody status were allowed to gather for prayer on Sundays.

In Venega v. Swarthout, 2012 U.S. Dist. LEXIS 779 (ED CA, Jan. 3, 2012), a California federal magistrate judge dismissed a habeas corpus petition that alleged in part that the inmate petitioner's free exercise rights were violated when the California Board of Parole Hearings ordered him to attend religiously-based Alcoholics Anonymous programs in order to be found suitable for parole.

In Bradford v. Yates, 2012 U.S. Dist. LEXIS 626 (ED CA, Jan. 3, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's religious discrimination and free exercise claims, saying that the complaint contained only vague allegations regarding the confiscation or the denial of religious materials and of name calling and harassment in general.

In Davitashvili v. Schomig, 2012 U.S. Dist. LEXIS 1069 (D AZ, Jan. 4, 2012), an Arizona federal district court dismissed a Jewish inmaet's free exercise and RLUIPA complaints of problems with the kosher diet he was receiving. The court held that plaintiff had not shown a substantial burden on his religious exercise. While he received meals that did not comply with kosher requirements on some occasions during a 2-month period, these stemmed merely from periodic service-delivery related problems.

Boko Haram Muslim Sect Kills Christians In Northern Nigeria

In Nigeria, the radical Muslim Boko Haram sect has killed 44 people in the last few days after it promised to kill Christians living in the predominately Muslim north of the country. According to AP, 8 were killed Friday night in Yola, the capital of Adamawa state, when gunmen attacked the Apostolic Church. Earlier Friday in the town of Mubi, 20 people who had gathered for a meeting of the Christian Igbo ethnic group were killed. On Thursday night, 8 were killed in an attack on a church in Gombe state. Attacks have also hit a beauty salon and banks.  Gov. Murtala Nyako has ordered a 24-hour curfew throughout Adamawa state.  Pastor Ayo Oritsejafor, president of the Christian Association of Nigeria, said today that Christians are taking steps to defend themselves against these attacks.

Suit Challenges Interfaith Portion of Jewish Cemetery

AP reported yesterday on a case originally filed nearly a year ago involving a dispute over who can be buried in a Jewish cemetery. The case is coming up for trial next month. At issue is an interfaith section of a cemetery in Colchester, Connecticut belonging to a Conservative synagogue, Congregation Ahavath Achim.  The first, and only, person buried there so far is Juliet Steer, a Jamaican-born African American woman who was interested in the Jewish faith and liked the peacefulness of the cemetery.  In 2009, the synagogue board agreed to set aside a portion of their cemetery for interfaith couples, their non-Jewish children and other non-Jews. However synagogue member Maria Balaban has now sued claiming that creating a non-Jewish section of the cemetery violates a 1999 merger agreement between Ahavath Achim and the Colchester Jewish Aid Congregation.  The synagogue's attorney, in a court filing last month, argues that Balaban originally approved creation of the non-Jewish section and is suing now only because Steer is African-American and Balaban does not want her buried near her family's plots. After that charge of racism was made, Balaban filed an amended complaint adding a claim for damages for emotional distress, saying that she has been made to feel unwanted by members of the congregation.

82 Religious Groups Apply To Hungarian Parliament For Recognition Under New Law

As previously reported, Hungary's Parliament last month passed a new Law on Churches that requires all but 14 traditional religious faiths to apply to Parliament for registration. AP reports that as of Friday, 82 churches, congregations and religious groups have applied for official recognition. Each group will need to be approved by a two-thirds vote of Parliament in order to be able to retain special tax, labor and other privileges.  Countering claims that the new law infringes religious rights (see prior posting), a Justice Ministry spokesman last month said: "Neither communities nor individuals are under any constraints in the practice of their religion in Hungary. The real objective of this law is to regularize the system of state subsidies and tax benefits, which was being abused."

Evangelical Leaders To Meet To Seek Single Alternative To Romney

In an article titled For Evangelicals Wary of Romney, Time Runs Short, the New York Times yesterday reported that dozens of conservative Christian leaders and political strategists plan to meet in Texas next Friday and Saturday to see if they can come together on a single candidate for the Republican presidential nomination who is more acceptable to evangelicals than Mitt Romney. With evangelicals' votes dispersed among several candidates, Romney is strengthened.