Recent Articles and Books of Interest

From SSRN:

• Micah Schwartzman, What If Religion is Not Special?, (January 25, 2012).
• Peter T. Leeson and Christopher J. Coyne, Sassywood, (January 23, 2012).
• Paul Horwitz, Law, Religion, and Kissing Your Sister, (January 22, 2012).
• Máiréad Enright, Girl Interrupted: Citizenship and the Irish Hijab Debate, (Social and Legal Studies, Vol. 20, p. 463, 2011).

From SmartCILP:

• John M. Breen and Lee J. Strang, The Road Not Taken: Catholic Legal Education At the Middle of the Twentieth Century, 51 American Journal of Legal History 553-637 (2011).
• Michael A. Helfand, Fighting for the Debtor's Soul: Regulating Religious Commercial Conduct, 19 George Mason Law Review 157-196 (2011).

Recent Books:

• Cullen Murphy, God's Jury: The Inquisition and the Making of the Modern World, (Houghton Mifflin Harcourt, Jan. 2012), reviewed by the New York Times.
• Sadakat Kadri, Heaven on Earth: A Journey Through Shari‘a Law, (Bodley Head, Jan. 2012), reviewed by OnIslam.net.

Retired General With Anti-Muslim Record Scheduled To Speak At West Point Prayer Breakfast

American Muslim yesterday reported on objections that have been raised to the invitation extended by the Chaplain's Office at the U.S. Military Academy at West Point to retired Lt. Gen. William "Jerry" Boykin to speak at the Academy's  Feb. 8 National Prayer Breakfast. Boykin has a long record of anti-Muslim statements. Both the Military Religious Freedom Foundation and VoteVets have written officials urging that the invitation be retracted. According to Thursday's Washington Post, a West Point spokesperson has reacted to the criticism, saying: "The National Prayer Breakfast Service will be pluralistic with Christians, Jewish, and Muslim cadets participating. We are comfortable and confident that what retired Lt. Gen. Boykin will share about prayer, soldier care and selfless service, will be in keeping with the broad range of ideas normally considered by our cadets." God and Country blog also has a report on the controversy.

Recent Prisoner Free Exercise Cases

In Watkins v. Donnelly, 2012 U.S. Dist. LEXIS 6118 (WD OK, Jan. 19, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 151825, Dec. 19, 2011) and dismissed on qualified immunity grounds an inmate's complaint that he was denied a religious diet for 3 meals in one day.

In Walker v. California, 2012 U.S. Dist. LEXIS 6806 (ED CA, Jan. 19, 2012), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied parole for failure to attend faith-based AA or NA programs.

In Williams v. Texas Department of Criminal Justice Correctional Institutions Division, 2012 U.S. Dist. LEXIS 8018 (SD TX, Jan. 24, 2012), a Texas federal district court permitted Muslim inmates to proceed with most of their statutory and constitutional religious liberty claims challenging prison officials' interrupting of a Friday Jumah service for a special head count and strip search.  The court pointed out that there is a documented history of discrimination against Muslim inmates by the Texas correctional system as evidenced by a prior consent decree ordering officials to permit Muslim worship services. The court concluded that defendants did not show that allowing the Jumah service to conclude would have jeopardized the effective functioning of the prison.

In Hersey v. Lanigan, 2012 U.S. Dist. LEXIS 8138 (D NJ, Jan. 23, 2012), a New Jersey federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that his request for observance of a Messianic Passover Seder was denied and instead he was provided a Rabbinic Jewish Passover Seder which did not include partaking of a roasted leg of lamb (but only included a lamb shank bone).

In Brown v. Medill, 2012 Kan. App. Unpub. LEXIS 35 (KS App., Jan. 20, 2012), a Kansas state appellate court permitted a Rastafarian inmate who was placed in segregation for refusing to cut his dreadlocks to proceed with his claim for damages for infringement of his free exercise rights and for malicious prosecution (the administrative proceeding that led to his being placed in segregation).  The state's rescission of its grooming policy mooted his claims for equitable relief.

In Wilkins v. Walker, 2012 U.S. Dist. LEXIS 9307 (SD IL, Jan. 26,2012), an Illinois federal district court permitted a former inmate who is a member of the African Hebrew Israelite faith to proceed with damage claims for violations of the free exercise, establishment and equal protection clauses that allegedly occurred when officials refused to hire an AHI chaplain or furnish plaintiff AHI material. State law claims, federal RLUIPA claims, and a religious diet claim were all dismissed.

In Cole v. Danberg, 2012 U.S. Dist. LEXIS 9123 (D DE, Jan. 24, 2012), a Delaware federal district court  denied a temporary restraining order against a prison policy that requires Muslim inmates to get rid of their colored kufis and, in the future, wear only white kufis that can be purchased at the prison commissary.

South Dakota Supreme Court Refuses To Order Church Dissolution Because of Religious Issues Involved

Wipf v. Hutterville Hutterian Bretheren, Inc., (SD Sup. Ct., Jan. 25, 2012) is the South Dakota Supreme Court's second installment in a factional dispute in a South Dakota Hutterite colony, and one of the first cases to cite the U.S. Supreme Court's recent Hosanna-Tabor decision.  After a 1992 schism in the North American Schmiedeleut Hutterian Church, two competing factions vied for governing control of the local colony which was organized as a non-profit corporation under South Dakota law.  In its first decision (see prior posting), the state supreme court, affirming the trial court, held that the governance question depends on resolving a dispute over membership in and expulsion from the "true" Hutterite church by the "true" church elders, and the First Amendment shields such issues from scrutiny by civil courts. Just before that supreme court decision was handed down, the state circuit court judge in the case held that the Hutterville colony dispute should be dealt with by dissolving the colony, selling off its assets and distributing the proceeds to its members.

Now the South Dakota Supreme Court has held that state courts also lack jurisdiction to order dissolution in this case:

When Hutterville made following the Hutterian religion a condition of corporate membership and weaved religious doctrine throughout its corporate documents, it limited a secular court’s ability to adjudicate any corporate disputes. We cannot uphold the circuit court’s order, findings, and conclusions without also endorsing its decision on the identity of corporate leaders and members. “Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC et al., ___ U.S. ___, ___, ___ S. Ct. ___, ___, ___ L. Ed. 2d ___ (2012). We conclude that the underlying religious controversies over church leadership so pervade the dissolution of the religious corporation that the dissolution is beyond a secular court’s jurisdiction.

EEOC Sues Arkansas Cooperative For Refusing Jehovah's Witness One Day Off

The EEOC announced Thursday that it has filed suit against the Arkansas-based Ozarks Electric Cooperative Corporation for refusing to allow a  call center customer service representative who was a Jehovah’s Witness to take one day off to attend a religious convention. The company not only refused her request but ultimately fired her over it, according to the EEOC's complaint.

6th Circuit: Christian Counseling Student May Go To Trial Over Required Counseling of Gay Client

In Ward v. Polite, (6th Cir., Jan. 27, 2012), the U.S. 6th Circuit Court of Appeals reversed a Michigan trial court's grant of summary judgment in favor of Eastern Michigan University (see prior posting) and held that a former graduate student's free-speech and free-exercise claims should go to trial. At issue was whether counseling student Julea Ward, who was enrolled in a practicum course, could because of her Christian religious beliefs refuse to counsel a gay client or at least have her faculty supervisor refer the client to another counselor if same-sex relationship issues arose. The University took disciplinary action against Ward under its rules that prohibit counseling students from discriminating on the basis of sexual orientation and require them to affirm a client’s values during counseling sessions. The 6th Circuit, held, however:

The key problem with the university’s position is not the adoption of this anti-discrimination policy, the existence of the practicum class or even the values-affirming message the school wants students to understand and practice. It is that the school does not have a no-referral policy for practicum students and adheres to an ethics code that permits values-based referrals in general. When the facts are construed in Ward’s favor, as they must be at this stage of the case, a reasonable jury could conclude that Ward’s professors ejected her from the counseling program because of hostility toward her speech and faith, not due to a policy against referrals.....

The court explained:

Although educators may “limit[]” or “grade[] speech in the classroom in the name of learning,” and although they may control their own speech and curriculum, the First Amendment does not permit educators to invoke curriculum “as a pretext for punishing [a] student for her . . . religion.”... Even in the context of a secular university, religious speech is still speech, and discriminating against the religious views of a student is not a legitimate end of a public school.

The court emphasized that the ultimate outcome of the case will depend on how a jury evaluates conflicting claims:

a jury might credit the university’s claim that ... practicum students were subject to a general ban on referrals, making it difficult for Ward to demonstrate that she was expelled on pretextual grounds as opposed to the ground that she refused to adhere to a general and reasonable curricular requirement.

The Detroit Free Press reports on the decision.

Today Is International Holocaust Commemeration Day

Today is the United Nations'-declared annual International Day of Commemoration in Memory of the Victims of the Holocaust. Haaretz reports on plans in countries across Europe for marking the day. The January 27 date was chosen because it is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau death camp by Soviet forces. The United Nations has sponsored a series of Holocaust Remembrance events this month, with an emphasis on this year's theme-- "Children and the Holocaust."

State Trial Court Upholds School Voucher Program

A trial court in Arizona's Maricopa County yesterday rejected state constitutional challenges to the state's "empowerment scholarship" program that makes school vouchers available to students with special needs so they can attend private or parochial schools.  According to the Arizona Daily Star, the court rejected claims that the program violates the state constitutional prohibition on appropriating public money in aid of any private or sectarian school (AZ Const., Art. 9, Sec. 10), and the provision in Art. 2, Sec. 12 of the state constitution that bars the appropriation of public money for religious instruction. The court held that there are substantive differences in the operation of this program and the ones struck down by the Arizona Supreme Court in 2009. (See prior posting.)

Pennsylvania House Declares 2012 As Year of the Bible

On Tuesday, the Pennsylvania House of Representatives adopted House Resolution 535 by a unanimous vote of 193-0.  The Resolution (full text) provides in part:

That the House of Representatives declare 2012 as the "Year of the Bible" in Pennsylvania in recognition of both the formative influence of the Bible on our Commonwealth and nation and our national need to study and apply the teachings of the holy scriptures.

The Resolution begins with a number of "Whereas" clauses, such as one declaring that "the Bible, the word of God, has made a unique contribution in shaping the United States as a distinctive and blessed nation and people." The resolution was introduced as "noncontroversial" under House Rule 35. This permitted the resolution to be voted on within 2 days of being introduced and without first going to committee. The Examiner reports on passage of the resolution.

Mosque Loses Challenge To Zoning Denial

In Islamic Center of North Fulton, Inc. v. City of Alpharetta, Georgia, (ND GA, Jan. 25, 2012), a Georgia federal district court dismissed RLUIPA and federal constitutional challenges to Alpharetta's refusal to give zoning approval to the Islamic Center's replacement of its present worship structure with 2 buildings-- a mosque and a smaller community hall.  The court held:

Simply because a religious organization’s facility is too small does not give the organization “free reign to construct on its lot a building of whatever size it chooses, regardless of the limitations imposed by the zoning ordinances.” ... The mere fact that a church, mosque or synagogue has outgrown its current facilities does not mean that it is substantially burdened under RLUIPA.

Rejecting the mosque's RLUIPA nondiscrimination claim, the court concluded that plaintiff had failed to identify similarly situated comparators.  The court also rejected the claim under RLUIPA that special use and conditional use permit requirements amount to unreasonable limits on religious structures. WSBTV News reports on the decision.

Jewish Group Wins Connecticut Zoning Appeal

In Chabad Chevra, LLC v. City of Hartford, (CT Super. Ct., Dec. 15, 2011), a Connecticut trial court reversed a cease-and-desist order that had been issued by the Hartford (CT) zoning enforcement officer. The Zoning Board of Appeals had affirmed the order that prevented a Jewish group from using as a religious facility a building it had purchased near the University of Hartford campus. The court found that the property had been used by it previous owners, a Baptist group, for offices, residential facilities and religious services.  The court concluded that "the only apparent distinction between the activities of the prior owner and Chabad Chevra is their religion, Christianity and Judaism." Hartford Business yesterday, pointing out anti-Semitic overtones in the original denial, says that the city has decided not to appeal.

State Department Posts Discussion of Role of Religion In U.S. Foreign Policy

Since 2010, the U.S. State Department has produced a series of online videos labeled Conversations with America. The videos feature  live interviews with the leaders of nongovernmental organizations interacting with State Department’s leadership. The latest installment, which appeared earlier this week, is on the Role of Religion in U.S. Foreign Policy.  It features Ambassador-at-Large for International Religious Freedom, Suzan Johnson Cook and Institute for Global Engagement president Chris Seiple in a conversation moderated by Deputy Assistant Secretary for Public Affairs Cheryl Benton. Both the video and a transcript of it are available online.

IRS Launches New Online Search Tool To Locate Non-Profits

Lexology reports that earlier this week the Internal Revenue Service launched a new online search tool to help members of the public locate information about tax-exempt organization. Exempt Organization Select Check allows users to locate organizations that are eligible to receive tax-deductible charitable contributions; organizations that have had their tax-exempt status automatically revoked because they have not filed Form 990 returns or notices annually for three years; and organizations that have filed a Form 990-N annual electronic notice (e-Postcard).

4th Circuit Dismisses RFRA Suit By "Enemy Combatant" Jose Padilla

In Lebron v. Rumsfeld, (4th Cir., Jan. 23, 2012), the U.S. 4th Circuit Court of Appeals rejected claims for a declaratory judgment, injunction and nominal damages brought by Jose Padilla, a U.S. citizen who was convicted on terrorism related charges, including providing material support to Al Qaeda. Padilla's lawsuit challenged his previous military detention as an "enemy combatant." One of Padilla's claims was brought under the Religious Freedom Restoration Act. He alleged that RFRA authorizes him to sue officials in their individual capacities for damages for burdening his free exercise of religion when they held him in military custody.  The court rejected that claim, saying:

Courts have long been reluctant to interpret statutes in ways that allow litigants to interfere with the mission of our nation’s military.... [W]e have no indication that Congress even considered the prospect of RFRA actions brought by enemy combatants with anything like the care that it has customarily devoted to matters of such surpassing sensitivity. The foregoing discussion underscores what we believe are considerable obstacles to applying RFRA in this context. But we need not go so far as to announce such a proposition in its most absolute terms.... At the very least, the defendants transgressed no clearly established law in this area, and to hold them personally liable in the absence of clear notice that such a prospect was even possible would run counter to the reasons that ... [qualified] immunity exists.

Reuters reports on the decision.

Utah High Court Says Objections To Religion At Voir Dire Are Procedurally Barred

In Taylor v. State of Utah, (UT Sup. Ct., Jan. 24, 2012), the Utah Supreme Court held that two claims alleging improper use of religion in voir dire during the penalty phase of a murder trial were procedurally barred from being raised because the objections could have been raised in a prior proceeding. Defendant Von Lester Taylor who was sentenced to death claimed that one juror should have been excused for cause because of his belief in the doctrine of blood atonement.  He also claimed that the prosecution wrongly used its peremptory strikes to reject jurors who were not members of the Church of Jesus Christ of Latter Day Saints. AP reports on the decision.

Added Saturday Evening Nevada Caucus Will Accommodate Sabbath Observing Jews

Nevada's Republican Party Caucuses to choose delegates to the presidential nominating convention are scheduled for Saturday, Feb. 4. AP reported this week that Clark County (Las Vegas area) officials have added a special 7:00 p.m. evening caucus to accommodate Jewish voters who observe the Sabbath. The decision came after billionaire casino owner, Sheldon Adelson, who is active in Jewish causes, complained about the Sabbath conflict.  Adelson and his wife Miriam, majority owners of the Las Vegas Sands Corp., have contributed $10 million to Winning Our Future, a super-PAC that supports Newt Gingrich.  (Bloomberg News). The special evening caucus will be held at the Adelson Educational Campus, a Jewish school founded by the Adelsons. A similar Saturday conflict occurred in 2008, but instead of holding evening caucuses the Nevada Democratic Party placed caucus sites near religious neighborhoods and synagogues so people could walk, and precinct captains were educated to write down information on behalf of observant Jews instead of asking them to sign-in and write themselves. The Republicans apparently also attempted to educate precinct captains on the issue when they became aware of it in 2008. (See prior posting).

EEOC Releases 2011 Enforcement and Litigation Statistics

The EEOC yesterday released its Enforcement and Litigation Statistics for 2011. A record number of religious discrimination claims were filed-- 4,151 (4.2% of all employment discrimination claims filed for the year). 4,608 religious discrimination claims were resolved in some fashion during the year. In 2,737 of those, the EEOC found no reasonable cause to believe that discrimination had occurred.  1,012 claims were closed for various administrative reasons. [Thanks to Blog from the Capital for the lead.]

Romney Tax Returns Raise Questions About Tithing Rules

Kai Petainen writing in Forbes says that Mitt Romney's recently released tax returns raise interesting technical questions about the Mormon Church's tithing rules. These include: is the 10% obligation based on adjusted gross income or taxable income, and can a failure to meet the 10% threshold in one year be made up by contributing more than 10% in the following year? Romney's returns show that for 2010-11 combined, he contributed 9.7% of adjusted gross income, but 12.8% of taxable income.

Cert. Filed In Classroom Banners Display Controversy

The Thomas More Law Center announced yesterday that it has filed a petition for certiorari (full text) with the U.S. Supreme Court in Johnson v. Poway Unified School District, (cert. filed. 1/19/2012).  In the case, the 9th Circuit rejected claims by a high school calculus teacher that his California school district violated his free speech rights, as well as the Establishment Clause and Equal Protection clause, when it required him to remove large banners he had posted in his classroom that carried historic and patriotic slogans, all mentioning God or the Creator. (See prior posting.)

House Passes 2 Bills On Religious Additions To War Memorials

AP reports that the U.S. House of Representatives yesterday passed, and sent to the Senate, two bills authorizing religious symbols on war memorials.  HR 290 permits inclusion of religious symbols on military memorials established or acquired by the United States, or memorials in which the American Battle Monuments Commission was involved. U-T San Diego points out that this is an attempt to save the much-litigated Mt. Soledad Cross. (See prior posting.) The second bill passed by the House yesterday,  HR 2070 requires installation at the Washington, D.C. World War II Memorial of a plaque containing Franklin Roosevelt's D-Day morning prayer.