Colorado AG Sues Religiously Sponsored Homeless Shelter For Misusing Contributions

The Colorado Attorney General's office announced Thursday that it has filed suit against Full Spirit Ministries (a charity that operates a homeless shelter), its CEO Richard Thebo and several board members claiming that they misused $31,000 in charitable contributions. The complaint (full text) in State of Colorado v. Full Spirit Ministries, (CO Dist. Ct., filed 3/14/2012), claims that defendants violated Colorado's Charitable Solicitations Act and its Consumer Protection Act by using charitable funds for improvements and mortgage payments on the homes of Thebo and his son.  Defendants claimed these homes were used as halfway houses, but the onlly homeless individuals that lived at Thebo's home were his female companions. The suit alleges that funds were also used for other personal and business expenses of defendants. The suit also claims that the charity made misrepresentations to donors regarding the number of people served. According to today's Coloradan, defendants say that the government is improperly meddling in the decision of a religious organization as to how to spend its funds to advance its mission.

University Ends Scheduling of Breaks Around Religious Holidays

Christian Post reports today on the decision by New York's Stony Brook University to end the practice of scheduling the academic calendar around major Jewish and Christian holidays. In the past, the school closed for Good Friday, Rosh Hashanah and Yom Kippur. It will no longer do so, and will end the practice of scheduling Spring Break to always coincide with Easter and Passover. Instead Spring Break will be the seventh week of the semester. The school says it is ending the practice that honored only some religions. However the American Center for Law and Justice says that the change demonstrates hostility toward religion and fails to accommodate religious practices.

Religious School Not Exempt From Unemployment Compensation Coverage

In Imani Christian Academy v. Unemployment Compensation Board of Review, (Commwlth. Ct. PA, March 21, 2012), a Pennsylvania appeals court, in a 2-1 decision held that a Christian school which was independent from the church that founded it, but had overlapping personnel, is not exempt from the Pennsylvania unemployment compensation statute. While the statute exempts organizations operated primarily for religious purposes, the court upheld the finding of the Unemployment Compensation Review Board  that the school was operated primarily for educational purposes.

Non-Liturgical Navy Chaplains Can Move Ahead On Some Claims, But No Reconsideration of Establishment Clause Ruling

In In re Navy Chaplaincy, (D DC, March 21, 2012), is another chapter in the long-running litigation by chaplains, endorsing agencies and churches claiming that the Navy discriminates against members of “non-liturgical” religions in its promotion, retention and separation  of chaplains. In this decision, the DC federal district court refused to amend its 2002 decision that plaintiffs had not shown that there was a violation of the Establishment Clause when the Navy allowed chaplains to rate other chaplains and permitted more than one chaplain to sit on a chaplain selection board. It also dismissed several other claims. However the court permitted plaintiffs to move ahead with various challenges to the Navy's chaplaincy accession, retention, promotion and selective early retirement process, as well as challenges to alleged prejudice in the disciplinary system. (See prior related posting.)

California Mosque Sues Over Zoning Denial

Annenberg TV News yesterday reported that in Los Angeles, California, the Council on Islamic American relations has filed a lawsuit challenging the city of Lomita's refusal to grant a permit for a renovation project for the South Bay Islamic Center. The city says the project would violate building codes, require too many zoning changes and would not fit in well with the neighborhood. Plaintiffs charge religious discrimination.

Recent Prisoner Free Exercise Cases-- Week's Second Installment

In Washington v. Caldwell, 2012 U.S. Dist. LEXIS 33670 (ED MI, March 12, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 33657, Feb. 21, 2012), and permitted an inmate to file an amended complaint in a case in which plaintiff argued that even though he was a Protestant, he should have been allowed to participate in the prison's Ramadan fast.

In McKinnedy v. Kee-Lippe, 2012 U.S. Dist. LEXIS 33246 (D SC, March 13, 2012), a South Carolina federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 33823, Jan. 30, 2012), and dismissed an inmate's complaint that his meals were not scheduled so he could participate in the last day of the Ramadan fast and he was not permitted to attend the Eid feast at the end of Ramadan.

In Priddy v. Garman, 2012 U.S. Dist. LEXIS 34558 (WD VA, March 14, 2012), a Virginia federal district court held that prison authorities did not violate the Establishment Clause when they permitted Muslim inmates to conduct group prayers in common areas of the prison.

In Myers v. Burdick, 2012 U.S. Dist. LEXIS 33061 (ED WI, March 13, 2012), a Wisconsin federal district court refused to issue a preliminary injunction in the case of an inmate seeking access to tarot cards and a companion book in order to practice his religion. Plaintiff's discovery motions for the book were also denied. UPDATE: Subsequently the court denied a motion for reconsideration, 2012 U.S. Dist. LEXIS 114998, Aug. 15, 2012.

In Cherry v. Platt, 2012 U.S. Dist. LEXIS 33129 (WD NC, March 13, 2012), a North Carolina federal district court rejected an inmate's claim that jail food service workers did not give him a snack bag on one occasion to cause him to stop observing his Ramadan fast.

In Belton v. Betzhold, 2012 U.S. Dist. LEXIS 34015 (ED WI, March 14, 2012), a Wisconsin federal district court permitted an inmate who says he is an ordained Baptist minister to challenge on free exercise grounds and under RLUIPA supervision and sex offender rules that prevent him from attending religious services or gatherings without prior approval and bar him from acting in a position of authority at any religious organization.

In Solomon v. Michigan Department of Corrections, 2012 U.S. Dist. LEXIS 34271 (WD MI, March 14, 2012), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 34269, Feb. 17, 2012) and dismissed complaints by an inmate that Moorish Science Temple of America services were scheduled on Saturday mornings instead of Fridays.

Hebrew Charter Schools Walk Church-State Line

New York Jewish Week yesterday carried a lengthy article on the 4 (soon to be 5) Ben Gamla Hebrew charter schools in Florida. The article says in part:

As taxpayer-funded institutions, the Ben Gamla schools — which collectively enroll nearly 1,400 children this year — do not teach religion. Classrooms have been carefully stripped of mezuzahs and other religious symbols, enrollment is open to children of all backgrounds and recruitment for Jewish after-school programs is not allowed inside the school. Indeed, when it comes to church-state separation, these schools adhere strictly to the letter of the law. However, they arguably push as close to the border of what’s allowable as possible, and some of their practices might raise a few eyebrows....

Of potential concern to church-state watchdogs are the various Jewish after-school programs that have sprung up to serve Ben Gamla students — programs at Hollywood and Kendall take place in the exact same facilities where school is held.... 

[B]ecause Ben Gamla, like many other charter schools, rents space, and does not occupy government-owned buildings, ... the school officially has no control over who uses its facilities when its lease (allowing it access only during the school day) is not in effect. While a public school has to provide equal access to all groups seeking to rent its facilities after hours, Ben Gamla’s landlords are apparently under no such legal requirement; they can rent to whomever they choose, provided they do not run afoul of fair housing laws.

New Money Laundering Concerns About Vatican Bank

International Business Times yesterday reported that the Institute for Works of Religion (IOR)-- also known as the Vatican Bank-- is facing a possible money-laundering scandal as JP Morgan Milan takes steps to close IOR's account with it. IOR has failed to provide JP Morgan with information about the source of 1.8 billion Euros that has been deposited in the account during the last 18 months. Apparently the funds were swept out of the account daily into an IOR account in Germany. Italian officials in 2010 began investigating IOR for money laundering (see prior posting). The Vatican adopted new anti-money laundering laws in 2010. Those laws took effect last April. (See prior posting.)

Christian Churches Sue In Israel Challenging Discriminatory Property Tax Law

YNet News reported last week that 5 foundations representing Christian communities in Israel have petitioned Israel's High Court of Justice challenging changes made in 2010 to Jerusalem's municipal tax laws. Under those amendments, all the properties of synagogues, including space used for commercial purposes, are exempt from real estate tax. However, for other religions, only prayer halls are exempt. Other parts of their facilities, such as classrooms, offices and event halls, are taxable. The suit alleges that this unequal treatment violates Israel's Basic Law: Human Dignity and Liberty. The suit asks for the court to order the broad exemption applicable to synagogues to be extended to churches as well, or alternatively for the court to invalidate the broader exemption for synagogues. Two Knesset members, fearing that the court might take the latter route, have introduced legislation to expand the broad exemption to all religions. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

USCIRF Releases Annual Report With Unusual Spat Over Whether Turkey Should Be Named As A Country of Particular Concern

Today the U.S. Commission on International Religious Freedom released and transmitted to the President its 2012 Annual Report (full text)(appendices) reviewing religious freedom abuses in 25 countries around the world.  The report recommends that the State Department designate 16 countries as countries of particular concern" (CPCs).  Under the International Religious Freedom Act, CPCs are countries in which there are particularly severe violations of religious freedom. Eight of the countries named in the Report are already on the CPC list from prior years-- Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, and Uzbekistan. USCIRF recommends that Egypt, Iraq, Nigeria, Pakistan, Tajikistan, Turkey, Turkmenistan, and Vietnam be added to the list. The report recommends that 9 other countries be placed on the Watch List because of less severe religious liberty issues in those nations. These countries are Afghanistan, Belarus, Cuba, India, Indonesia, Laos, Russia, Somalia, and Venezuela.

[CORRECTED] As indicated in the report, its timing this year was impacted by the impending March 21 expiration of the terms of 5 of the 9 current Commissioners.  (As reflected in the USCIRF Report, Commissioner Leo's term is not up until May because while he is in his third term, he was apparently originally appointed for a partial term. The Act terminates those who have completed two "full" terms.) This house cleaning was mandated by reauthorization legislation passed by Congress last December. (See prior posting.)  Reflecting this reality, this year's report covered the period April 1, 2011 to Feb. 29, 2012, instead of covering the usual April 1 to March 31 period.

In addition, time pressures apparently gave rise to another curious development.  Five members of the Commission circulated a statement later in the day saying that Turkey should not have been included in the list of recommended CPCs, but instead should have been included only on the Watch List.  The Report (pp. 220-227) already contains dissenting and concurring statements as to the recommendation for Turkey.  Apparently the 4 dissenters convinced a 5th Commissioner to go along with them, but a bit too late.  Here is the full text of the e-mail that was circulated widely today:

I am writing to alert you to a statement issued Monday by five members of the federal US Commission on International Religious Freedom objecting to the Tuesday 3-20-release of the 2012 Annual Report without reflecting Commissioner Argue's changed position. As a result of the exclusion of this fact, the Commission recommendation was misrepresented as calling for Turkey to be on the CPC list rather than on the Watch List. The full statement is included below and attached. 

The undersigned Commissioners urge you to review the statement.

For further information, please contact me or other Commissioners. 

 Felice D. Gaer, 917-325-3844

STATEMENT BY 5 MEMBERS OF US COMMISSION ON INTERNATIONAL RELIGIOUS FREEDOM REGARDING RELEASE OF 2012 ANNUAL REPORT

While we support the 2012 Annual Report of the United States Commission on International Religious Freedom, on which we serve, we object to its release at this point. One of the nine Commissioners, Dr. Argue, has changed his position from recommending a designation of the Republic of Turkey as a Country of Particular Concern (CPC) to recommending it for the USCIRF Watch List. His position is not reflected in the document released today. This result is due to procedural issues which could have easily been accommodated, as there was ample time to reflect this change.

We support Dr. Argue's right to have his views accurately reflected as guaranteed in our authorizing Statute.* We regret the failure of the Annual Report to accurately reflect the majority view of Commissioners with respect to Turkey.

* Section 205(c) of our authorizing statute, PL-105-292 as amended, states:  "Individual or Dissenting Views Each member of the Commission may include the individual or dissenting views of the member."

SIGNED:

Commissioner Don Argue
Commissioner Felice Gaer
Commissioner Azizah al-Hibri
Commissioner William Shaw
Commissioner Ted Van Der Meid

New Online IRS Tool For Searching Out Tax-Exempt Organizations

The Internal Revenue Service last week announced the launch of a new online search tool for finding information about tax-exempt organizations. The one-stop Exempt Organizations Select Check allows the user to determine if a particular organization is eligible to receive tax-deductible charitable contributions, whether the organization has had its tax-exempt status automatically revoked for failing to file Form 990 for 3 consecutive years, and whether the group has filed Form 990-N. Searches can be carried out by employer identification number as well as name, and exempt-status revocations can be searched as well by city, state or zip code.

Step Toward Disestablishment of Church of Norway Taken

According to ENInews, last week a major step toward disestablishment of Norway's state church was taken. On March 16, the government in its weekly session with King Harald V formally agreed to proposals for changes in the country's Constitution and other church legislation. The proposals must still be passed by the Parliament (Storting). That is expected to happen in May or June. The Ministry of Government Administration, Reform and Church Affairs said that under the proposal, the provision in the Constitution that "the Evangelical Lutheran religion should remain the state's public religion" will be replaced with a provision that the state's basis will be "our Christian and Humanist heritage."  The appointment of bishops and other clergy will be transferred from the King to Church of Norway bodies. Government officials dealing with church affairs will no longer be required to be Church of Norway members. However, Church of Norway clergy will continue to be employed by the state.While the king will no longer be the "summus episcopus," the Constitution will provide that the king "shall continue to profess the Evangelical Lutheran religion."

Another Colorful Order Entered To Enforce Religion In School Settlement

Last month, a settlement was finally entered in a lawsuit challenging the Medina Valley, Texas Independent School District's plan to include student-led prayers in its graduation ceremony. The settlement dealt broadly with issues of religion in the public schools. (See prior posting.) A notable feature of the litigation has been the colorful memos and opinions issued by federal district judge Fred Biery.  That tradition continues as yesterday Judge Biery issued an order (full text) captioned "Non-Kumbaya Order: The Homo Sapien Saga Continues."

The settlement included a stipulation that: "School District Personnel will not disparage the Plaintiffs." However hours after the court approved the settlement agreement, the Superintendent gave a television interview calling the lawsuit a "witch-hunt." Subsequently disparaging comments were posted on Facebook by the school's band director.  That led plaintiffs to file a Motion to Enforce the Settlement Agreement and to Judge Biery's 7-page order which stated in part:

While Hollywood once proposed that "love means never having to say you're sorry," life and litigation offer more realistic approaches to resolving disputes and avoiding a lengthy court hearing on the allegations and responses presently before the Court. Surely, the parties and counsel have more constructive things to do.

The Court does not expect the parties to hold hands and sing "Kumbaya" around a campfire beside the Medina River. Nor does the Court expect the respondents ... to engage in a public spectacle of self-flagellation for communicating words better left unsaid. Moreover, the Court does not expect plaintiffs to become traditional Trinitarian Christians, though the Court suggests plaintiffs might follow the moral and civility lessons of Matthew 5:39 ("if someone strikes you on the right cheek, turn to him the other also") and a portion of "Essay on Criticism" ("to err is human; to forgive, divine")....

Accordingly, respondents are given the opportunity, within ten days of this order, to sign the following statement, privately and personally.... "I apologize for statements I made, which were interpreted by plaintiffs as disparaging towards them. I will abide by the Settlement Agreement and Release entered on February 9, 2012."

.... Plaintiffs, within ten days of notification of respondents' signed statements, shall sign, privately and personally, with delivery to plaintiffs' counsel: "Your apology is accepted. I will abide by the Settlement Agreement and Release entered on February 9, 2012."

.... If the Court's suggestion is acted upon ...the Court will find that any alleged contempt by respondents has been purged. If no certification is received, the matter will be set for a show cause hearing.

Finally, the Court reminds the parties of the Fifth Amendment....While it is invoked for criminal prosecutions, its underlying premise is instructive for Homo sapien relationships in general: Trouble does not come from words unspoken, particularly in this age of e-mails, tweets, cameras and recorders.

San Antonio Express News reported on the order.

Venice Commission Criticizes Parts of Hungary's New Law On Legal Status of Churches

The Venice Commission is the Council of Europe's advisory body on constitutional law. Yesterday, responding to a request from the government of Hungary for an advisory opinion, the Commission issued a 15-page report on Hungary's 2011 Act On the Right to Freedom of Conscience and Religion and the Legal Status of Churches, Denominations and Religious Communities. (Full text). The Commission summarized its findings as follows:

107. As a whole, the Act constitutes a liberal and generous framework for the freedom of religion. However, although few in number, some important issues remain problematic and fall short of international standards.

108. The Act sets a range of requirements that are excessive and based on arbitrary criteria with regard to the recognition of a church. In particular, the requirement related to the national and international duration of a religious community and the recognition procedure, based on a political decision, should be reviewed. This recognition confers a number of privileges to churches concerned.

109. The Act has led to a deregistration process of hundreds of previously lawfully recognised churches, that can hardly be considered in line with international standards.

110. Finally, the Act induces, to some extent, an unequal and even discriminatory treatment of religious beliefs and communities, depending on whether they are recognised or not.

111. The Venice Commission was informed that - as a reaction to the draft opinion - the Government intends to introduce amendments, which is welcome. The Commission had no possibility to examine these proposals but it remains at the disposal of the Hungarian authorities for any further assistance.

AP reports on the Commission's opinion. (See prior related posting.)

Certiorari Denied In Clergy Abuse and College Student Organization Cases

The U.S, Supreme Court yesterday denied certiorari in two unrelated cases. It denied review in Doe v. Roman Catholic Archdiocese of St. Louis, (Docket No. 11-840, cert. den. 3/19/2012) (Order List). In the case, a Missouri appellate court rejected plaintiff's claim against the Archdiocese of St. Louis for intentional failure to supervise one of its priests who sexually abused plaintiff as a teenager.  The court held that under Missouri law, a duty to supervise arises only as to activity that takes place on Church premises or that occurs while the priest was using a chattle belonging to the church. It also followed Missouri precedent holding that the 1st Amendment bars assertion of tort claims against a religious institution based on its alleged negligence in supervising, retaining, or hiring sexually abusive clerics. (See prior posting.) Bloomberg News reports on the Supreme Court's denial of review.

The Supreme Court also denied review in Alpha Delta Chi- Delta Chapter v. Reed, (Docket No. 11-744, cert. den. 3/19/2012) (Order List). In the case, the 9th Circuit upheld the facial constitutionality of a San Diego State University policy that denies recognition to any student group that restricts membership or eligibility to hold officer positions on the basis, among others, of religion. However, the 9th Circuit concluded that plaintiffs had raised a triable issue of fact as to whether the University applied the policy in a discriminatory manner in denying recognition to a Christian fraternity and sorority, while granting recognition to certain other groups that limit their membership. (See prior posting.) The San Francisco Chronicle reports on the Supreme Court's denial of certiorari.

Pakistani Police Officer Gets Life In Prison For Blasphemy

Pakistan Today reports that on Friday a court in the Pakistani city of Kasur imposed a life sentence and a fine equivalent to $2200 (US) for blasphemy on Police Station House Officer Manzarul Haq Shah Jahan.  The complaint against Jahan, alleging violation of Sec. 295C of the Pakistan Penal Code, was filed by Muhammad Younis who said that in a conversation about street crime with him and two others, Jahan had used blasphemous words against the Prophet Muhammad. Before filing the complaint, Younis discussed the incident with 65 members of a mosque. Several religious scholars have also issued fatwas against Jahan.

Diocese Loses On 1st Amendment Defense To Negligent Supervision Suit

AP reported last week that a state trial judge in Pulaski County, Arkansas has rejected a 1st Amendment defense by the Roman Catholic Diocese of Little Rock and has held that plaintiff Shannon Oates may sue the diocese for negligent supervision of a priest and failure of the diocese to protect her. Oates, who is 41, claims she was lured into a romantic and sexual relationship with Fr. Charles Kanu beginning in 2009 as he acted as her mentor in her conversion to Catholicism. The suit alleges that the diocese knew or should have known what Kanu was doing. Kanu is not named as a defendant in the case.

Recent Articles of Interest

From SSRN:

• Amy Bowers and Kristen A. Carpenter, Challenging the Narrative of Conquest: The Story of Lyng v. Northwest Indian Cemetery Protective Association, (Indian Law Stories, Carole Goldberg, Kevin K. Washburn, Philip P. Frickey, eds., Foundation Press, 2011).
• Matthew L. M. Fletcher, Resisting Congress: Free Speech and Tribal Law, (The INdian Civil Rights Act at Forty, Kristen A. Carpenter, Matthew L.M. Fletcher, Angela R. Riley eds., UCLA American Indian Studies Center, 2012).
• Michael A. Helfand, Litigating Religion, (Boston University Law Review, Vol. 92, 2012).
• Mark Rienzi, The Constitutional Right Not to Kill, (March, 17 2012).
• Robin L. West, A Marriage is a Marriage is a Marriage: The Limits of Perry v. Brown, (Harvard Law Review Forum, Vol. 125, pp. 47-53, 2012).
• Ali Manzo Usman, Social Human Rights In Islam and the Universal Declaration on Human Rights (U.D.H.R 1948): Comparative Study, (OIDA International Journal of Sustainable Development, Vol. 3, No. 5, pp. 39-46, 2012).

From SmartCILP:

• Robert H. Nelson, Rethinking Church and State: The Case of Environmental Religion, 29 Pace Environmental Law Review 121-217 (2011).
• Intisar A. Rabb, The Islamic Rule of Lenity: Judicial Discretion and Legal Canons, 44 Vanderbilt Journal of Transnational Law 1299-1351 (2011).
• Alexander Volokh, Do Faith-Based Prisons Work? 63 Alabama Law Review 43-95 (2011).
• Sharia, Family, and Democracy: Religious Norms and Family Law in Pluralistic Democratic States. Foreword by John Witte, Jr.; articles by Abdullahi Ahmed An-Na'im, Ann Laquer Estin, Natan Lerner, Rosalind I.J. Hackett, Abdulmumini A. Oba, Eyene Okpanachi, Abdul-Fatah Kola Makinde, Philip Ostien, M. Christian Green, Joel A. Nichols, Pascale Fournier, Yuksel Sezgin and T W Bennett. 25 Emory International Law Review 779-1059 (2011).

Rabbi Ordered To Jail For Religious Refusal To Testify To Grand Jury

According to the Los Angeles Times last week, a California federal district court judge who has found Hasidic rabbi Moshe Zigelman in contempt for refusal to testify has ordered Zigelman to be jailed on March 21.  Zigelman has already served a prison term for tax evasion by his New York-based Spinka sect.  After his release from prison, he was subpoenaed to appear before a grand jury to testify in the continuing probe of the tax scheme. However, Zigelman refused, citing the Jewish principle of mesira-- the variously interpreted ban on informing civil authorities that a fellow-Jew is violating the law. Zigelman will remain in jail for a maximum of 18 months, or less if he decides to testify.  (See prior related posting.)

California AG Rules Madonna Mosaic On Public Land Would Be Unconstitutional

U-T San Diego reported last week that California's Attorney General has issued an Opinion (March 7, 2012) (full text) concluding that it would violate the "No Preference" clause (Art. 1, Sec. 4) of the California Constitution for the California Department of Parks and Recreation to permit the city of Encinitas to install the "Surfing Madonna" mosaic on state property at Moonlight State Beach.  According to an AP article last year, which carries a photo of the glass mosaic, the mosaic was placed under a train bridge in Encinitas. However technically it was graffiti. When Encinitas began steps to remove the mosaic, its creator, Mark Patterson, identified himself and reached an agreement with the city to remove the mosaic so it could be installed elsewhere. This is descried in a California Catholic Daily article of Feb. 12. In a comment that Patterson posted online to this California Catholic Daily article, he described his inspiration for creating it. The content of the post became important to the Attorney General's ruling.

The Attorney General said in part:

... Mr. Patterson's attorney has asserted that  the mosaic has a purely secular message ("Save the Ocean") and that Mr. Patterson was using the image of the Virgin of Guadalupe as a means of conveying that message. However, this assertion is inconsistent with Mr. Patterson's own description of how he came to adopt the image as a part of his mosaic. In the quotation above from the comment he posted on California Catholic Daily,  he states that the Virgin "appeared" to him on several occasions. Her message to him was to save the oceans....

Because the image of the Virgin of Guadalupe is central to the mosaic, an objective observer would conclude that Parks wished to convey a message related to that potent symbol of Catholicism. And even if the message is one of saving the oceans, it is the Virgin who is stating the message