South Carolina Now Sells Specialty "I Believe" Plates

AP reported yesterday that South Carolina motorists can now purchase "I Believe" license tags. They have been available since January 4, when they were added to some 130 other specialty plates. By the end of January, 56 pf the new tags had been sold. Specialty plates cost an added $25 which goes to the sponsoring charity.  The new plates are sponsored by www.IBELIEVEsc.net, which will use the profits for nonpolitical community efforts. The plates (photo) feature the letters "JC" between 3 crosses on a hill and the plate number, and also display the sponsoring charity's name.  In 2009, a federal district court held that a special South Carolina government-sponsored statutory authorization of an "I Believe" license tag violated the Establishment Clause. (See prior posting.) The new plates are being issued under the general provisions of SCL Sec. 56-3-8000 "Non-profit organization license plates."

Split 9th Circuit Invalidates Proposition 8 Without Broadly Ruling On Same-Sex Marriage Right

The 9th Circuit U.S. Court of Appeals today, in a 2-1 decision struck down California's Proposition 8 that eliminated the right-- previously created by the California Supreme Court's interpretation of the state constitution-- for same-sex couples to marry. In Perry v. Brown, (9th Cir., Feb. 7, 2012), [opinion on alternate website in case of traffic overload] Judge Reinhardt, in an opinion joined by Judge Hawkins, held that even though California may not have had the obligation to grant same-sex couples the right to marry, once it did, it could not take that right away without some legitimate reason for doing so. Here there was no legitimate reason. Instead, the majority concluded:

Proposition 8 servers no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples. The Constitution simply does not allow for "laws of this sort."

The court briefly discussed the argument that Proposition 8 furthered a legitimate interest in protecting religious liberty.  The majority said:

the religious-liberty interest that Proposition 8 supposedly promoted was to decrease the likelihood that religious organizations would be penalized, under California's antidiscrimination laws and other government policies concerning sexual orientation, for refusing to provide services to families headed by same-sex spouses. But Proposition 8 did nothing to affect those laws.... Amicus's argument is thus more properly read as an appeal to the Legislature, seeking reform of the state's antidiscrimination laws to include greater accommodations for religious organizations.

Judge Smith dissented on this issue, concluding that people of California might have rationally believed that Proposition 8 is related to responsible procreation and optimal parenting.

The Court unanimously held that the proponents of Proposition 8 had standing to bring the appeal, and unanimously refused to accept the argument that the decision should be vacated because of the trial judge's interest in being able to marry his own same-sex partner.

Washington Post reports on the decision.

Bishops' Health Insurance Letter Created Special Issues For Military Chaplains

As previously reported, On Jan. 29 Catholic Churches around the country read similar letters from their local bishops condemning the Obama administration's new rules requiring contraception coverage by most health plans, with exemptions that are too narrow to include most Catholic schools and hospitals. It appears that the letter posed particular issues for Catholic chaplains in the U.S. military who received a letter to read from Archbishop Timothy Broglio, head of the Archdiocese for the Military Services USA. God and Country blog reports that  Army’s Office of the Chief of Chaplains e-mailed senior chaplains advising them that Broglio had not coordinated the letter with the Chief of Chaplains Office. The e-mail advised chaplains not to read the letter from the pulpit, but instead to merely mention it in Mass announcements and distribute it in printed form in the back of the chapel. Archbishop Broglio, who apparently believed that this interference violated his religious liberty, contacted Army Secretary John McHugh. Their discussions led to the Army withdrawing its objections to the letter being read from the pulpit, but Broglio removing from the letter one sentence that could have been seen as encouraging civil disobedience. The sentence read: "“We cannot — we will not — comply with this unjust law"

France Opens First Municipal Muslim Cemetery

AFP and RFI report that on Monday, France opened its first municipal Muslim cemetery.  France's 1905 law on the separation of church and state bars creating municipal cemeteries limited to only one religion. This means that cities have been limited to setting aside Muslim-only sections in existing cemeteries.  However the new Muslim cemetery was opened in the city of Strasbourg in the Alsace-Moselle region which is subject to a different basic law because it came under French control only after World War I. Muslims in France see the new cemetery as an important symbol of their belonging after a series of measures aimed at maintaining France's secular tradition, such as one barring wearing the full-face veil (see prior posting), were perceived as anti-Muslim.

Court Says Christian Prayers At County Board Meetings Violate Establishment Clause

On Friday, a Virginia federal district court issued three separate opinions in Jane Doe v. Pittsylvania County, Virginia, (WD VA, Feb. 2, 2012).  In the first opinion, the court denied defendants' motion to dismiss the lawsuit which challenges on Establishment Clause grounds the Pittsylvania County Board of Supervisors' practice of opening its sessions with Christian prayers.The court held that plaintiff, who regularly attends Board meetings, has standing to bring the challenge. The court also rejected defendants' arguments that doctrines of legislative immunity and privilege require dismissal. It concluded that plaintiff adequately alleged that the county's practice violates the Establishment Clause.

In a second opinion, the court granted a preliminary injunction, barring the county "during the pendency of this case, from continuing its present practice of routinely opening its meetings with Christian prayers." It held that plaintiff is "likely to prevail on her claim that the Board's practice of regularly opening meetings with prayers making specific reference to Jesus Christ constitutes government advancement and endorsement of one faith..."

Finally in a third opinion, the court held that plaintiff cannot continue to prosecute the case as "Jane Doe," but must furnish her actual name if she intends to proceed with the lawsuit. An ACLU press release reports on the decisions.

Recent Articles and Forthcoming Books of Interest

Articles from SSRN:

• Abdulla Galadari, Diversity in Heaven: Qur’anic Perspective Beyond Pluralism, (The International Journal of Diversity in Organizations, Communities and Nations, Vol. 11, No. 3, pp. 135–150, 2012).
• Nina J. Crimm, Reframing the Issue and Cultivating U.S.-based Muslim Humanitarian Relief Organizations, (March 20, 2011).
• KIIT Law School, Shakti Deb, A Critical Analysis of Child Marriage Law in India with Special Reference to Hindu Law, (February 2, 2012).

Forthcoming books:

• Jonathan Haidt, The Righteous Mind: Why Good People Are Divided by Politics and Religion, Random House, March 13, 2012).
• John J. Coughlin, Law, Person, and Community: Philosophical, Theological, and Comparative Perspectives on Canon Law, (Oxford Univ. Press, Feb. 2012).
• Martha C. Nussbaum, The New Religious Intolerance: Overcoming the Politics of Fear in an Anxious Age, (Harvard Univ. Press, March 19, 2012).

Ron Paul Supporters Object To Religious Limits For Participating In Late Nevada Caucus

As previously reported, the Nevada Republican Party yesterday scheduled an evening caucus to accommodate Orthodox Jews who could not attend Saturday daytime caucuses for religious reasons. The New York Times reports, however, that the party required anyone attending the caucus to sign a declaration under penalties of perjury that he or she had been unable to attend a caucus earlier in the day because of "my religious beliefs."  This would essentially limit participation to observant Jews and Seventh Day Adventists. However many Ron Paul supporters-- encouraged by Paul campaign robo-calls-- who had been unable to participate in earlier caucuses for other reasons tried to attend the evening caucus. Some who refused to sign the declaration were turned away.  The Paul campaign Nevada chairman said that this amounts to illegally creating a religious test to vote, and suggested that a lawsuit could be forthcoming. Apparently a number of Paul supporters signed the declaration even though they had non-religious reasons for attending. At the caucus, Paul receive 183 votes-- nearly 58% of those cast in the caucus. This seems to be an unlikely result if the caucus was attended mainly by Orthodox Jews given Paul's views on Israel.

Challenge To Utah's Polygamy Law Can Proceed Against County Prosecutor

In Brown v. Herbert, (D UT, Feb. 3, 2012), a Utah federal district court held that members of an openly polygamous family (subjects of the television show Sister Wives) have standing to bring suit against the County Attorney to challenge the constitutionality of the state's Anti-Bigamy Statute. However the court dismissed for lack of standing their similar claims against Utah's governor and attorney general. Finding that Utah's Anti-Bigamy statute is generally considered moribund, the court held that plaintiffs needed to show threatening activities by government officials to show that a credible threat of prosecution exists. State officials had taken no action to credibly threaten prosecution. They have announced that they will not prosecute consenting adults for polygamy unless other crimes are also involved. However the Utah County prosecutor's office has taken threatening steps by opening an investigation that led plaintiffs to flee to Nevada. The court held that plaintiffs also have standing under a First Amendment chilling of speech theory. The Salt Lake Tribune reports on the decision.

O Centro Files Land Use Lawsuit Against New Mexico County

O Centro Espirita Beneficente Uniao do Vegetal (UDV), the religious group that in 2006 won in the Supreme Court the right to use hoasca-- sacramental hallucinogenic tea (see prior posting)-- has now filed a land use lawsuit against Santa Fe County, New Mexico. The Santa Fe New Mexican reports that the federal lawsuit, filed on Thursday, grows out of the county commission's 3-2 denial of UDV's application to build a new temple to replace its current facilities that it has outgrown.  The complaint (full text) in O Centro Espirita Beneficente Uniao do Vegetal (UDV-USA) v. Board of County Commissioners of Santa Fe County, (D NM, filed 2/2/2012) charges in 8 counts that the county's denial violated the 1st and 14th Amendments, various provisions of RLUIPA, and the New Mexico Religious Freedom Restoration Act. [Thanks to Eric Rassbach via Religionlaw for the lead.]

Recent Prisoner Free Exercise Cases

In Johnson v. Hetzel, 2012 U.S. Dist. LEXIS 9033 (MD AL, Jan. 26, 2012), an Alabama federal district court adopted a federal magistrate's recommendations (2011 U.S. Dist. LEXIS 152440, Dec. 12, 2011) and dismissed a Muslim inmate's claim that on one occasion while in a restricted privileges dorm he was not allowed to attend a Friday Jumah service.

In Bartholomew v. Moore, 2012 U.S. Dist. LEXIS 10031 (ED CA, Jan. 26, 2012), a California federal magistrate judge recommended rejecting a Muslim inmate's complaint that his free exercise rights were violated when a prison officials insisted that if he wanted to work in the prison's metal fabricating plant he would be required to work on Fridays and miss Jumah services. The court also rejected the claim that plaintiff was not rehired in the prison job because he is a Muslim.

In Ryidu-x v. Wolfe, 2012 U.S. Dist. LEXIS 11546 (D MD, Jan. 31, 2012), a Maryland federal district court rejected an inmate's claim that his constitutional rights were violated when authorities denied him mail order privileges, commissary items, and access to his prison records because of his use of his legally-recognized religious name.

In Sloane v. Neveda, 2012 U.S. Dist. LEXIS 10400 (D NV, Jan. 30, 2012), a Nevada federal magistrate judge granted a Jewish inmate's motion to amend his complaint to add a free exercise claim against a shift supervisor who allegedly failed to protect Plaintiff's constitutional right to observe Passover by assuring delivery of Seder supplies on time and his right to eat only kosher for Passover meals. The court refused to permit amendments to add various equal protection claims.

In Vann v. Fischer, 2012 U.S. Dist. LEXIS 11052 (SD NY, Jan.26, 2012), a New York federal district court denied a TRO and temporary injunction to an inmate who is a Santeria Practitioner who claimed that he was disciplined for wearing religious beads in ways that do not conform to prison rules and that his picture was taken wearing his religious beads.

In Jones v. Williams, 2011 U.S. Dist. LEXIS 152524 (D OR, Jan. 25, 2012), an Oregon federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152523, Oct. 28, 2011), and dismissed a Muslim inmate's claims that his free exercise rights were violated when he was served pork on one occasion, was ordered to cook pork as part of his kitchen duties, and when grills were not adequately cleaned after frying pork.

In Aladimi v. Hamilton County Justice Center, 2012 U.S. Dist. LEXIS 12283 (SD OH, Feb. 1, 2012), an Ohio federal magistrate judge recommended dismissing on statute of limitations and other pleading grounds a Muslim inmate's complaint that he was denied the right to pray 5 times a day, harassed when he attempted to pray and subjected to offensive remarks by clergy of other faiths who visited the jail where he was housed. The magistrate also recommended denying plaintiff's motion to file a second amended complaint.

In Mestre v. Wagner, 2012 U.S. Dist. LEXIS 12093 (ED PA, Jan. 31, 2012), a Pennsylvania federal district court dismissed a Buddhist inmate's complaint that there was a 7-week delay in obtaining completely vegan meals.

In Johnson v. Nash, 2012 U.S. Dist. LEXIS 11118 (D NV, Jan. 31, 2012), a Nevada federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 152580, Sept. 1, 2011) and denied a Muslim inmate's request for a preliminary injunction against retaliatory cell searches. Plaintiff claimed that defendants destroyed his prayer rug by throwing four cartons of milk on it, and shipped out his copy of Islam in Focus because it was an Islamic book.

In Roy v. Dominguez, 2012 U.S. Dist. LEXIS 11230 (ND IN, Jan. 31, 2012), an Indiana federal district court dismissed a former inmate's complaint that while in jail officials would not schedule Jehovah's Witness chapel services, but allowed plaintiff to move ahead with his claim that jail authorities made it difficult for his minister to give him spiritual guidance. NWI Times reports on the decision.

Texas RFRA Claims Survive In Plano School "Candy Cane" Litigation

Yet another decision has been handed down in the 7-year litigation over Plano, Texas Independent School District rules that, among other things, prevented a student from handing out candy canes with attached religious messages. In Morgan v. Plano Independent School District, 2012 U.S. Dist. LEXIS 12875 (ED TX, Feb. 1, 2012), a Texas federal magistrate judge summarized the prior history of the case:

This Court and the Fifth Circuit have upheld the 2005 policy as to its constitutionality. This Court has also upheld the facial constitutionality of the 2004 policy. The Fifth Circuit en banc has held that various administrators were entitled to qualified immunity. After seven years, the issues have narrowed. Yet, the case proceeds on with both parties having very divergent views of the law and how the law applies to the case.

In this phase of the litigation, the school board sought dismissal of Plaintiffs' claims for monetary, injunctive and declaratory relief under both the Texas Constitution and the Texas Religious Freedom Restoration Act. The magistrate judge recommended dismissal of the state constitutional claims, but concluded that the school district had not met its burden under TRFRA to show a compelling interest in the manner that three children were prevented from handing out religious-themed tickets and pencils under their school's 2004 (as opposed to its 2005) policy. (See prior related posting.)

School Board Wants To Keep "Bible Man" Assemblies

In Jackson County, Alabama, for 35 years elementary schools have held regular student assemblies featuring "Bible Man" who tells students Bible stories.  According to yesterday's Huntsville (AL) Times, school board members last Monday rejected a complaint filed by the Freedom from Religion Foundation on behalf of the parents of a North Sand Mountain School student. The Board is now attempting to work out a way to continue to legally hold the assemblies. School officials suggest that offering Bible Man during a free period in which students have the choice of other activities as well may be a solution. Until changes are implemented, Bible Man will not return to North Sand Mountain School. Alabama state senator Shadrack McGill, a supporter of Bible Man, said: "We were established to be a godly nation, a Christian nation. We need God in government. We need God in the public school." He suggested that those who oppose the practice should home school their children. [Thanks to Edward Still for the lead.]

Judge Issues Candid Memos In School Graduation Prayer Lawsuit

In May, Americans United filed a lawsuit challenging the Medina Valley, Texas Independent School District's plan to include student-led prayers in its graduation ceremony. The district court issued a broad preliminary injunction against prayer. (See prior posting.) The 5th Circuit quickly dissolved the preliminary injunction. (See prior posting.) Since then, Western District of Texas federal district Judge Fred Biery has filed several interim rulings with rather candid observations on the case which is captioned Schultz v. Medina Valley Independent School District.  On Nov. 2, the court ruled on several motions, including allowing an amended complaint to be filed. In the opinion, Judge Biery said in part:

the parties are spending what appears to be inordinate amounts of money and time which could be better spent on educating students. That of course would require the parties, with the assistance of counsel, to find some reasonable compromise. Or as the modern urban philosopher Rodney King once said, “[C]an we all get along?”

On Nov. 28, the court filed a memorandum titled Observations on Approaching Jury Trial suggesting that the school district had already made concessions that should be sufficient for the parties to reach a settlement. Judge Biery concluded his observations as follows:

Nevertheless, if the parties choose to spend more money and take more time away from educating students, the Court will proceed with logistical jury trial planning, though the Court believes both sides will rue such choice. Jesus of Nazareth and St. Paul express the same lesson this way: You shall reap what you shall sow and They know not what they do.

In a Dec. 6 opinion, the court also expressed frank views on the decision of one of the plaintiffs to withdraw rather than disclose her identity as the court had said she must:

Throughout history, there have been people who take risks to stand up for what they believe to be right, and sometimes unfortunate consequences flow from their courage. Young people the same age as Corwin Schultz and Pat Doe lie in the cemeteries of Normandy because they did not shrink from their duty to scale the cliffs of Omaha Beach and ultimately defeat a government which would, if undefeated, have continued to oppress the Jewish minority.

Within the American Constitutional experience, Rosa Parks, Congressman John Lewis, and other African Americans could have gone quietly to the back of the bus, continued to go to separate restrooms and water fountains and subjugated their freedom and their right to vote to the will of the majority government holding power.

Finally, on Feb. 4, the court issued an Advisory on the right of student graduation speakers, given the school's agreement that it will not approve the student remarks:

Because of the governmental disclaimer, the student speaker's right under First Amendment concepts of free speech would allow for requests for private citizen audience participation in which private citizens might or might not join. For example, if a Muslim student were to be valedictorian, she or he could express a particular view verbally and physically within the Muslin tradition and the audience might or might not join in facing Mecca if requested.

On the other hand, those government officials on stage are, in that setting, not private citizens and represent the diverse religious and non-religious community as a whole. While the government official might agree with the student speaker, in the role of government official within First Amendment concepts of government not endorsing or promoting a particular religious belief, the government official should refrain from facing Mecca and expressing agreement while wearing the government hat.

San Antonio Express-News reports on the latest Advisory.

Iowa High Court Holds Ban On Steel-Wheel Tractors Violates Mennonites' Free Exercise Rights

In Mitchell County v. Zimmerman, (IA Sup. Ct., Feb. 3, 2012), the Iowa Supreme Court held that a county ordinance prohibiting use on paved roads of tractors equipped with steel cleated wheels violates the 1st Amendment rights of members of the Old Order Groffdale Conference Mennonite Church.  The Mennonites adopted the steel wheel requirement in order to prevent tractors displacing the horse and buggy and destroying their close-knit community.  The court concluded that the ordinance is not one of "general applicability" because it contains exemptions for school buses to use ice grips and tire studs year round, and does not address sources of road damage other than steel wheels. A free exercise challenge to a law that is not generally applicable will succeed unless the state shows a compelling interest and a regulation narrowly drawn to further that interest.The court concluded that the county had not shown that the ordinance was narrowly tailored.  It said: "A more narrowly-tailored alternative might allow steel wheels on county roads in some circumstances, while establishing an effective mechanism for recouping the costs of any necessary road repairs if damage occurs." The Des Moines Register reports on the decision.

UPDATE: According to AP (2/8), Mitchell County will not appeal the decision to the U.S. Supreme Court because the ordinance at issue in it has now been replaced by a different one which the county attorney believes will be upheld if challenged.

9th Circuit Orders Recordings Of Proposition 8 Trial To Remain Under Seal

In Perry v. Brown, (9th Cir., Feb. 2, 2012), the U.S. 9th Circuit Court of Appeals held that a California district court abused its discretion in ordering the unsealing of a video recording of the trial proceedings in the case challenging the constitutionality of California's Proposition 8-- the ban on same-sex marriage. Judge Vaughn Walker had the recordings made solely for his in-chambers use. Those challenging Proposition 8 argued that release of the recordings would have a chilling effect on expert witnesses' willingness to cooperate in future proceedings. The unsealing was ordered by Judge Walker's successor following Walker's retirement. (See prior posting.) The 9th Circuit said:

the district court failed to appreciate the nature of the statements that the trial judge had made to the litigants, the specific factual and legal context in which he made them, and the consequences of his having done so. The integrity of our judicial system depends in no small part on the ability of litigants and members of the public to rely on a judge’s word. The record compels the finding that the trial judge’s representations to the parties were solemn commitments. Upon this record, there is only one plausible application of the standard for sealing a record that is, arguendo, subject to the common-law right of public access: the interest in preserving the sanctity of the judicial process is a compelling reason to override the presumption in favor of the recording’s release.

AP reports on the decision.

Fines Against Church of Scientology Upheld By French Court

AP reports that in France yesterday, an appeals court upheld a lower court's fraud conviction of the Church of Scientology that had been charged with pressuring members to pay large amounts for questionable remedies. The court upheld the fines imposed by the lower court--  the equivalent of $530,000 for the church and $261,900 for its bookstore. At the trial court level, prosecutors lost their bid to have the church dissolved or closed down in France which does not consider Scientology to be a legitimate religion. (See prior posting.)

NYPD Report Urges Increased Surveillance of Shiite Mosques

AP reported yesterday on the contents of a 2006 New York Police Department Intelligence Strategy Report (full text) that recommended increased surveillance of Shiite mosques as a way to locate Iranian terror threats. According to AP: "The document also renews debate over how the NYPD privately views Muslims."

President Speaks At National Prayer Breakfast

President Obama spoke yesterday at the National Prayer Breakfast held at the Washington Hilton Hotel in Washington, D.C. (Full text of remarks.) He said in part:

[I]n my moments of prayer, I’m reminded that faith and values play an enormous role in motivating us to solve some of our most urgent problems, in keeping us going when we suffer setbacks, and opening our minds and our hearts to the needs of others. 

We can’t leave our values at the door.  If we leave our values at the door, we abandon much of the moral glue that has held our nation together for centuries, and allowed us to become somewhat more perfect a union.  Frederick Douglass, Abraham Lincoln, Jane Addams, Martin Luther King, Jr., Dorothy Day, Abraham Heschel -- the majority of great reformers in American history did their work not just because it was sound policy, or they had done good analysis, or understood how to exercise good politics, but because their faith and their values dictated it, and called for bold action -- sometimes in the face of indifference, sometimes in the face of resistance....

And when I talk about shared responsibility, it’s because I genuinely believe that in a time when many folks are struggling, at a time when we have enormous deficits, it’s hard for me to ask seniors on a fixed income, or young people with student loans, or middle-class families who can barely pay the bills to shoulder the burden alone.  And I think to myself, if I’m willing to give something up as somebody who’s been extraordinarily blessed, and give up some of the tax breaks that I enjoy, I actually think that’s going to make economic sense.

But for me as a Christian, it also coincides with Jesus’s teaching that “for unto whom much is given, much shall be required.”  It mirrors the Islamic belief that those who’ve been blessed have an obligation to use those blessings to help others, or the Jewish doctrine of moderation and consideration for others.

CNN Money headlines its coverage of the President's remarks: "Obama: Jesus would back my tax-the-rich policy." The Washington Post says that this year's Prayer Breakfast had a different tone than usual, with more unscripted moments.

550 Sex Abuse Victims File Claims In Milwaukee Diocese Bankruptcy

Yesterday at 4:00 p.m. was the deadline for filing of claims in the bankruptcy proceedings of the Catholic Archdiocese of Milwaukee.  The Milwaukee Sentinel-Journal reported yesterday that at least 550 people filed sex abuse claims-- the largest number in any of the 8 diocesan bankruptcies since 2004. The archdiocese will object to claims relating to abuse by religious order priests who it says were not diocese employees.  It will also raise defenses against three of the claims against priests.

Retired General With Anti-Muslim Record Withdraws As West Point Prayer Breakfast Speaker

The New York Times reports that the U.S. Military Academy on Monday announced that retired Lt. Gen William G. Boykin "has decided to withdraw speaking at West Point’s National Prayer Breakfast" on Feb. 8. The announcement of Boykin's planned appearance drew protests because of his record of anti-Muslim statements. (See prior posting.)