Court Says Now Scientology Church Can Pursue Discrimination In Zoning Claim

In Church of Scientology of Georgia v. City of Sandy Springs, 2012 U.S. Dist. LEXIS 19087 (ND GA, Feb. 10. 2012), a Georgia federal district court granted a motion for reconsideration of its earlier zoning decision (see prior posting). The earlier decision held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise, but dismissed its RLUIPA discrimination, equal terms and exclusion claims. In its new opinion, the court held that it now believes a question of fact exists as to whether Sandy Springs discriminated against the Church of Scientology on the basis of its religious denomination when, in granting conditional approval of its rezoning application, it refused to allow expansion of the church's existing building based on a lack of sufficient on-site parking. In an amended opinion, the court said:

Based on the entirety of the evidence in the record as more clearly demonstrated by Plaintiff in its motion for reconsideration, in conjunction with new, unchallenged evidence provided in the briefing on ripeness that Plaintiff originally sought a parking variance but was informed by a member of the City's planning staff that no variance was needed because the Church met the City's minimum parking requirement, the Court finds that Plaintiff has now sufficiently demonstrated evidence from which a possible inference of discrimination could be made.

Israel's High Court Strikes Down Law On Deferring Service For Yeshiva Students

Jerusalem Post reports that Israel's High Court of Justice yesterday struck down Israel's "Tal" law-- the "Deferral of Service for Yeshiva Students for Whom Torah Is Their Profession Law."  The law was passed by the Knesset in 2002 and requires renewal every 5 years. The current lawsuit was filed in 2007 by the Movement for Quality Government along with other groups, challenging the small number of haredi men who have enlisted under the law. Yesterday's holding means that the Knesset will not be able to renew the law in its present form this year. The law was designed to encourage haredi (strictly Orthodox) men to enlist in the armed forces. In 2011, 1282 of the men enlisted in the IDF and 1079 in a national service program. In a 6-3 decision, the Court held that the law conflicts with the provision in Israel's Basic Law: Human Dignity and Liberty, Sec. 8 that provides "There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required." The majority apparently agreed with petitioners' argument that the law does not work because it permits too many yeshiva students to avoid mandatory military service, and creates inequality by transferring the burden of serving to other groups in society.

Two dissenters argued that the government should be given more time to make the law work. A third dissenter said that there is no basis for judicial review of a law granting benefits to a minority group. Prime Minister Benjamin Netanyahu said that a revised version of the law will be forumulated.

En Banc Review By 9th Circuit Sought In Proposition 8 Invalidation

A petition (full text) for a rehearing en banc was filed with the U.S. 9th Circuit Court of Appeals yesterday in Perry v. Brown. In the case, a 3-judge panel of the 9th Circuit (by a 2-1 vote) struck down California's Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) AP reports on the rehearing petition. In a separate motion (full text) filed yesterday, Imperial County Clerk, Chuck Storey, sought again to intervene as a defendant in the case.

Cert. Denied In Claim Challenging Teacher's Anti-Religious Comment

Yesterday the U.S. Supreme Court denied certiorari in C.F. v. Corbett, (Docket No. 11-759). In the case, former high school student Chad Farnan claimed that in his sophomore Advanced Placement European History class, teacher James Corbett violated the Establishment clause by making statements that were hostile toward religion in general and Christianity in particular. The 9th Circuit dismissed the case on mootness and qualified immunity grounds. (See prior posting.) The Orange County Register reports on the Supreme Court's refusal to review the decision.

Afghans Protest Inadvertent Military Burning of Qur'ans

Furious demonstrations broke out in Afghanistan yesterday as reports circulated of NATO troops at Bagram Air Base setting fire to bags containing copies of the Qur'an and books of Qur'anic interpretation.  The New York Times and CNN report in depth on the events. On Monday night, a dump truck escorted by a military vehicle drove up to a landfill at Bagram and began unloading bags of books into a pit for incineration.  Afghans working at the site saw what was happening and objected. The soldiers drew back, but two bags already thrown into the pit had begun to burn, and they were pulled out by Afghans with half-burned Qur'ans in them.  The books came from the Detention Facility in Parwan which houses insurgents captured by Americans in raids.  ISAF Commander General John R. Allen said: "We are thoroughly investigating the incident and we are taking steps to ensure this does not ever happen again. I assure you … I promise you … this was NOT intentional in any way."  One official said that the materials were removed from a library at Parwan because of "extremist inscriptions" communicated on them. Secretary of Defense Leon Pantetta also apologized, while ISAF announced that coalition personnel will be trained in proper handling of religious materials by March 3. At the White House daily press briefing (full text), press secretary Jay Carney said in part:

This was a deeply unfortunate incident that does not reflect the great respect our military has for the religious practices of the Afghan people.  Our military leaders have apologized, as I mentioned, for these unintentional actions, and ISAF is undertaking an investigation to understand what happened and to ensure that steps are taken so that incidents like this do not happen again.

UPDATE: CNN reports Wednesday that at least 5 people have been killed and 20 wounded as police respond to protests in Parwan and Nangarhar provinces. The U.S. embassy in Kabul is in lock down for a second day. Americans were asked to avoid the area near Camp Phoenix (near Kabul International Airport) where violent demonstrations were also taking place.

Two New Challenges To Obama's Contraceptive Coverage Mandate Filed

Two more lawsuits, brought by religiously-affiliated universities, were filed yesterday to challenge the constitutionality of the Obama administration mandate that requires contraceptive services to be covered by most health insurance policies.  A press release from the Becket Fund reports that a suit was filed in federal court yesterday by Florida’s Ave Maria University.  The complaint (full text) in Ave Maria University v. Sebelius, (MD FL, filed 2/21/2012), claims that enforcing the mandate against Ave Maria would violate the Religious Freedom Restoration Act, the free exercise, free speech and establishment clauses of the First Amendment, as well as the Administrative Procedure Act. (See prior related posting.)

UPDATE: Ave Maria's president is Jim Towey, former director of George W. Bush’s Office of Faith-Based & Community Initiatives. The Daily Caller reports on Towey's conference call with reporters announcing the lawsuit.

Meanwhile, yesterday the Presbyterian-affiliated Geneva College in Beaver Falls, Pennsylvania filed a similar lawsuit.  The complaint (full text) in Geneva College v. Sebelius, (WD PA, filed 2/21/2012) indicates that Geneva College's objections are limited to being required to cover contraceptives (such as Plan B and ella) that it considers to be abortifacients. However its lawsuit seeks a broad order barring application of the mandate in a way that substantially burdens anyone's religious beliefs.  The Pittsburgh Post-Gazette reports on the lawsuit.

Religious Groups Urge Candidates Not To Use Religion Inappropriately

Fourteen religious groups-- Christian, Muslim, Jewish, Hindu and Sikh-- today urged political candidates to avoid inappropriate emphasis on religious belief in the upcoming campaign season. (Press release.) In a document titled Religion in Political Campaigns -- An Interfaith Statement of Principles, drafted by the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and the Interfaith Alliance, the 14 groups said:

Candidates for public office ... should feel comfortable explaining their religious convictions to voters, commenting about their own religious beliefs, explaining, if they wish to do so, how those beliefs shape their policy perspectives, and how they would balance the principles of their faith with their obligation to defend the Constitution if the two ever came into conflict. There is a point, however, where an emphasis on religion in a political campaign becomes inappropriate and even unsettling in a religiously diverse society such as ours.  Appealing to voters along religious lines is divisive. It is contrary to the American ideal of including all Americans in the political process, regardless of whether they are members of large and powerful religious groups, religious minorities, or subscribe to no faith tradition.

[Thanks to Michael Lieberman and to Jeff Huett for the lead.] 

FBI Removes Inaccurate Training Material On Muslims

The Detroit Free Press reported yesterday that the FBI has removed some 700 documents and 300 presentations that stereotyped Islam or were factually inaccurate. The action came after complaints from Muslim and Arab-American groups. The FBI plans to announce in the near future its procedures for vetting training material for accuracy. [Thanks to Blog from the Capital for the lead.]

British Employment Appeal Tribunal Holds Sikh Priest Must Be Paid Minimum Wage

In Singh v. Members of the Management Committee of the Bristol Sikh Temple, (EAT, Feb. 14, 2012), Britain's Employment Appeal Tribunal held that a former Priest at a Sikh Temple was a "worker" within section 54(3)(b) of the National Minimum Wage Act 1998.  This entitled him to the minimum wage, and not merely the amounts he had been receiving from contributions by members of the congregation. Reporting on the decision, today's London Mail says: "The decision means religious organisations, charities and groups which depend on voluntary help are at risk of having to pay a salary to thousands of people they believed were giving their help free."

Greek Orthodox Patriarch Meets With Commission Drafting Turkey's New Constitution

Hurriyet Daily News reported yesterday that in Turkey, Greek Orthodox Patriarch Bartholomew made an historic closed-door presentation to the Constitution Conciliation Commission which is drafting a new constitution for Turkey. The Patriarch said that this was "the first official invitation to non-Muslim minorities in Republican history." In an 18-page paper that he left with the Commission, the Patriarch called for equal treatment for non-Muslim minorities, including an equal share of public funds for religious services and education. Another member of the Patriarch's delegation urged the Commission to make reference in the new constitution to the 1924 Lausanne Treaty that  guarantees the rights of Turkey’s Greek Orthodox, Jewish and Armenian communities. He also urged the Commission to specifically define "hate crimes". The head of the Syriac Mor Gabriel Monastery Foundation also met with the Commission.

State Bills Challenge Federal Mandate On Contraceptive Coverage

AP reports today that bills have recently been introduced into state legislatures in Idaho, Missouri and Arizona that would allow insurance companies or businesses, religious or secular, to refuse to cover contraception, abortion and sterilization in their health insurance policies if they have moral objections to offering the coverage. The bills attempt to challenge the Obama administration's recent mandate regarding coverage of contraceptive services by health care plans. It is likely that the federal government would sue to block effectiveness of the state laws if they pass.

Recent Articles of Interest

From SSRN:

• Melissa Crouch, Indonesia's Blasphemy Law: Bleak Outlook for Minority Religions, (Asia Pacific Bulletin (East-West Center), No. 146, Jan. 26, 2012).
• Ryan Max Rowberry and John Khalil, A Brief History of Coptic Personal Status Law, (Berkeley Journal of Middle Eastern & Islamic Law, Vol. 3, No. 1, p. 81, 2010).
• Ioana Cismas, Introductory Note to the Statute of the OIC Independent Permanent Human Rights Commission, (International Legal Materials, Vol. 5, No. 6, pp. 1148-1160, 2011).
• Katherine Jacob, Divine Diversion: Divine Retribution as Dispute Resolution and the Norman Invasion of Ireland, (November 30, 2011).
• Carolyn Anne McConnell, What's in a Name? The Case for the Disestablishment of Marriage, (February 17, 2012).
• Mae Kuykendall and Adam Candeub, Symposium Overview: Perspectives on Innovative Marriage Procedure, (Michigan State Law Review, Vol. 2011, p. 1, 2011).
• Muhammad Elsayed, Contracting into Religious Law: Anti-Sharia Enactments and the Free Exercise Clause, (George Mason Law Review, Vol. 20, No. 3, 2012).

Recent Prisoner Free Exercise Cases

In McKennie v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 16924 (WD TX, Feb. 10, 2012), a Texas federal district court held that the rights of a Hebrew-Israelite inmate under RLUIPA were not violated  when he was not permitted to congregate on the Sabbath with his fellow believers without a religious volunteer present and was not provided a vegan diet.

In Mathis v. Manza, 2012 U.S. Dist. LEXIS 17147 (WD PA, Feb.9, 2012), a Pennsylvania federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 17148, Jan 18, 2012) and dismissed equal protection and Establishment Clause claims brought by a non-religious inmate in a jail's restricted housing unit who complained that religious inmates are allowed access to religious texts and jail visits from religious advisers, while he is not allowed access to non-religious texts and extra visits.

In Delgado v. Ballard, 2012 U.S. Dist. LEXIS 16807 (SD WV, Feb. 10, 2012), a West Virginia federal district court rejected RLUIPA. equal protection and retaliation claims by an inmate who adhered to a Taino/Arawak belief system. Plaintiff complained about hair length restrictions, restrictions on tobacco use, restrictions on his use of music during religious observances and interference with his mail. The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 153093, Oct. 6, 2011.

In Santos v. Allen, 2012 U.S. Dist. LEXIS 17206 (D NV, Feb. 13, 2012), a Nevada federal district court held that an inmate had no free exercise claim based on the loss or destruction of a mail-order Passover meal. However the court permitted another free exercise claim, not described in the opinion, to proceed.

In Hallman v. Metts, 2012 U.S. Dist. LEXIS 17393 (D SC, Feb. 13, 2012), a South Carolina federal district court rejected a Muslim inmate's claims that he was not provided adequate and appropriate meals during Ramadan, that he was not provided adequate privacy in communal rest rooms, that n Imam was provided and that he was prevented from praying with other Muslims. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 17390, Jan. 19, 2912.

In Shabazz v. Virginia Department of Corrections, 2012 U.S. Dist. LEXIS 17746 (ED VA, Feb. 13, 2012), a Virginia federal district court ordered various defendants to file a memo explaining their position on equal protection, free exercise and RLUIPA claims of a Nation of Islam plaintiff who wished to purchase Nation of Islam non-music CDs directly from The Final Call. Prison authorities required him to go through the Faith Review Committee for approval to add them to the catalog of the prison's distributor.

In Murden v. DeRose, 2012 U.S. Dist. LEXIS 19112 (MD PA, Feb. 15, 2012), a Pennsylvania federal district court rejected an inmate's claim that his free exercise rights were infringed when, his copy a Qur'an was confiscated for 16 days in a general cleaning of cell contents undertaken in response to a riot.

In Mujahid v. Cunningham, 2012 U.S. Dist. LEXIS 19773 (WD WA, Feb. 16, 2912), a Washington federal district court dismissed an inmate's complaint that unidentified mail room staff trashed or rejected several religious books, magazines and publications. The magistrate's recommendation is at 2011 U.S. Dist. LEXIS 153281, Nov. 8, 2011.

In Barbosa-Orona v. Flores-Dasta, 2012 U.S. Dist. LEXIS 19951 (D PR, Feb. 15, 2012), a Puerto Rico federal district court held that a Catholic inmate who claims he had made a religious vow not to cut his hair had failed to exhaust his administrative remedies before suing over the forced cutting of his hair by prison guards.

In Palermo v. Wrenn, 2012 U.S. Dist. LEXIS 19154 (D NH, Feb. 8, 2012), a New Hampshire federal magistrate judge recommended permitting an inmate to move ahead with his free exercise, RLUIPA and equal protection claims against two defendants. Plaintiff alleged that he was denied access to Asatrú religious services, religious items, literature, and a religious diet on the basis that Asatrú is not a religion, but a white supremacist group.

In Vazquez v. Waln, 2012 U.S. Dist. LEXIS 18186 (D NC, Feb. 14, 2012), a North Carolina federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 153278, Nov. 28, 2011) and permitted an inmate to move ahead with his free exercise and RLUIPA claims that a correctional officer
interfered with his religious practices by seizing his Religious Box which he needed to engage in prayers. However the court rejected his due process challenge to the seizure.

2nd Circuit: TRO On Church Use of Schools Only Applies To One Church

As previously reported, on Thursday a New York federal district court issued a temporary restraining order in the long-running case of Bronx Household of Faith v. New York City Board of Education, temporarily barring the Board of Education from enforcing a Chancellor's Regulation precluding use of school buildings for religious worship. Yesterday, the U.S. 2nd Circuit Court of Appeals issued an order (full text) in the case, clarifying that the TRO applies only to evicting Bronx Household of Faith, and does not apply to protect other churches that are not parties to the litigation. However the Circuit Court refused to stay the TRO as it applies to Bronx Household of Faith. Reporting on the 2nd Circuit order, New York Law Journal says that the city and some 50 religious groups had understood the TRO to apply to churches using any public school, and a number of churches were scrambling to get permits for this Sunday.

Canada's Supreme Court Upholds Quebec's Ethics and Religious Culture Program In Schools

In S.L. v. Commission scolaire des Chênes, (Canada Sup. Ct., Feb. 17, 2012), the Supreme Court of Canada rejected a religious liberty challenge to the mandatory Ethics and Religious Culture Program that in 2008 replaced Catholic and Protestant programs of religious and moral instruction. Two parents challenged the program, arguing that it interfered with their obligation to pass on the teachings of the Catholic religion to their children. Justice Deschamps' opinion for 7 justices held:

Parents are free to pass their personal beliefs on to their children if they so wish.  However, the early exposure of children to realities that differ from those in their immediate family environment is a fact of life in society.  The suggestion that exposing children to a variety of religious facts in itself infringes their religious freedom or that of their parents amounts to a rejection of the multicultural reality of Canadian society and ignores the Quebec government’s obligations with regard to public education.  Although such exposure can be a source of friction, it does not in itself constitute an infringement of s. 2(a) of the Canadian Charter and of s. 3 of the Quebec Charter.

A concurring opinion by Justices LeBel and Fish agreed that on the current record, the program should not be struck down. They said, however, that once the program is full implemented so that the actual content and approach are known, it may be that a valid challenge will be available.

One News Now reports on the decision. (See prior related posting.)

Dutch Court Dismisses Charges Against Jewish Man Who Could Not Produce ID On Sabbath

DutchNews.nl reports today that an appeals court in the Hague has dismissed charges of failing to produce an identification card that had been brought against an Orthodox Jewish man who for religious reasons did not carry his ID on the Sabbath.  A court spokesman said that the defendant's religious requirement was more important than the requirement to meet Dutch law.

UPDATE: DutchNews.nl (Feb. 22) reports that the public prosecution department will appeal the decision.

Preacher Loses Challenge To University's Speaker Rules

In McGlone v. Cheek, 2012 U.S. Dist. LEXIS 18820 (ED TN,  Feb. 15, 2012), a Tennessee federal district court upheld rules at the University of Tennessee that permit outside speakers on campus only if they are sponsored by a student organization. The rule was challenged by a Christian preacher who wanted to share his religious beliefs at various outdoor areas on campus, but did not have student organizational sponsorship.  The court held that the University's rules were reasonable content-neutral restrictions on use of a limited public forum. The court also rejected vagueness and overbreadth challenges.

Court Can Apply "Neutral Principles" To Dispute Over Removal Of Church Board Members

In Bendross v. Readon, (FL Aoo., Feb. 15, 2012), a Florida appeals court held that the ecclesiastical abstention doctrine does not apply to prevent a civil court from adjudicating a dispute over the make up of the a church's board.  Bible Missionary Baptist Church was incorporated as a non-profit corporation under Florida law. Eugene Rice, a member of the church's board,, filed the corporation's 2010 annual report with the state without notice to the remaining directors. The report removed four members of the board and added three new directors. Other board members objected, and eventually filed suit. The court held that since the church by-laws were silent on procedures for removing board members, default provisions in the non-profit corporation law should apply. The court explained:

Because the statute unambiguously establishes procedures of uniform law, the instant dispute "can be resolved by applying neutral principles of law without inquiry into religious doctrine and without resolving a religious controversy." ...  The court is not asked to interpret religious doctrine or to evaluate church policies. The allegations at the heart of the complaint — that Appellees improperly attempted to remove members of the Board of Trustees — are entirely controlled by neutral application of section 617.0808.

House Committee Holds Hearing On Obama Contraception Coverage Mandate

The House Committee on Oversight and Government Reform yesterday held a hearing titled Lines Crossed: Separation of Church and State. Has the Obama Administration Trampled on Freedom of Religion and Freedom of Conscience?  Eleven witnesses appeared on two panels before the committee. The Committee's website has transcripts of the prepared statements of the witnesses along with videos of the hearing. Reporting on the hearing, McClatchy Newspapers said:

Leaders from the Catholic, Jewish, Baptist and Lutheran faiths joined in opposition to a proposed federal mandate that would require church-affiliated employers to cover birth control in their health plans.

The leaders took part in a highly politicized oversight hearing led by one of President Barack Obama's chief critics, Rep. Darrell Issa, R-Calif. But for those leaders, the issue was deeply serious and personal, touching on one of the basic tenets of the nation's democracy and raising questions about government's place in the faith community.

AP reports that Democrats on the committee were unhappy that Republicans accepted only one Democratic witness. Democrats were also concerned about the fact that only two women were slated as witnesses.

UPDATE: Apparently only ten of the witnesses appeared, with Barry Lynn of Americans United not appearing.

New Jersey Legislature Passes Same-Sex Marriage Bill; Veto Expected

In New Jersey yesterday the Assembly gave final legislative approval to a bill legalizing same-sex marriage. However, according to a report by AP, it is expected that Gov. Chris Christie will veto the bill. The bill (full text) earlier this week passed the state Senate by a vote of 24-16, and then passed the lower house yesterday by a vote of 41-33.