Bankruptcy Code Limit On Deducting Tuition Is Not Free Exercise Infringement

In In re Meyer, (Bankr. ED WI, March 22,2012), a Wisconsin federal bankruptcy court upheld the constitutionality of a provision in Title 7 of the Bankruptcy Code that limits the amount of private school tuition that may be included in the computation of allowable living expenses and the determination of whether granting bankruptcy relief would be abusive.  7 USC 707(b) limits the tuition amount to $1775 per year per child. Here the debtors, who sent their children to a Catholic parochial school with higher tuition, argued that the limit forced them to choose between the free exercise of religion and their right to a discharge in bankruptcy. But the court rejected debtors' free exercise argument. It said in part:

the law is not discriminatory in its object or purpose; the Bankruptcy Code's means test has a purely economic purpose and neither advances nor inhibits religion. And finally, the actual operation of the statute does not target the practices of a particular religion for discriminatory treatment.... 

While the debtors have the right to the free exercise of religion and the right to direct the education and upbringing of their children, that right is not independent of their personal economic limitations and choices. There is no duty of either the government or the debtors' creditors to fund their religious choices.

Recent Articles of Interest

From SSRN:

• Robert A Kahn., Who’s the Fascist? Uses of the Nazi Past at the Geert Wilders Trial, (U of St. Thomas Legal Studies Research Paper No. 12-10, 2012).
• Michael Heise and Gregory C. Sisk, Free Exercise of Religion Before the Bench: Empirical Evidence from the Federal Courts, (U of St. Thomas Legal Studies Research Paper No. 12-07, 2012).
• Sahar F. Aziz, Countering Religion or Terrorism? Selective Enforcement of Material Support Laws Against Muslim Charities, (Institute for Social Policy and Understanding, Policy Brief #47, September 2011). 
• Oren Gross, Violating Divine Law: Emergency Measures in Jewish Law, (Perspectives on Perogative, B. Kleinerman, C. Fatovic, eds., Oxford University Press, 2012).
• Salim Farrar, Accommodating Islamic Banking and Finance in Australia, (University of New South Wales Law Journal, Vol. 34, No. 1, pp. 413-442, 2011).

From SmartCILP:

• Brian Sites, Religious Documents and the Establishment Clause, 42 University of Memphis Law Review 1-71 (2011).
• Erica Weitzman, Beyond the Legality Principle: Sacher-Masoch's Economies of "Jewish Justice," [Abstract], 23 Law & Literature 442-470 (2011).
• Islamic Law and Islamic Legal Professionals in Southeast Asia. Introduction by Mark E. Cammack, R. Michael Feener and Clark B. Lombardi; articles by Clark B. Lombardi, R. Michael Feener, Mark E. Cammack, Euis Nurlaelawati, Abdurrahman Rahim, Ratno Lukito, Farid S. Shuaib, Najibah M. Zin, Amanda Whiting, Ahmad Nizam bin Abbas, Muhammad Haniff Hassan, Sharifah Thuraiya Su'ad Ahmad Alhabshi and Nik Hasyila Bte Nik Ibrahim. 21 Pacific Rim Law & Policy Journal 1-221 (2012).
• Religion and Bankruptcy: Perspectives Thereon and Treatment Therein. Articles by Keith Sharfman, G. Ray Warner, Geoffrey P. Miller, Theresa J. Pulley Radwan, Haider Ala Hamoudi, Lyman Johnson and Steven H. Resnicoff. 19 American Bankruptcy Institute Law Review 453-584 (2011).

UN Human Rights Council Adopts By Consensus 2 Religious Liberty Resolutions

Last week, the United Nations Human Rights Council adopted two resolutions on religious liberty. (UN Watch list of resolutions.) Both were adopted without a formal vote.  The first (press release 3/22) was a resolution introduced by Denmark on behalf of the European Union titled Freedom of religion or belief.  The second (3/23) was a resolution submitted by Pakistan on behalf of the Organization of the Islamic Conference, titled Combating intolerance, negative stereotyping and stigmatization of, and discrimination, incitement to violence and violence against, persons based on religion or belief. In a press release, Human Rights Watch applauded the fact that again this year, like last year, the resolution omits any reference to the controversial concept of "defamation of religion."

Recent Prisoner Free Exercise Cases

In Sisney v. Reisch, (8th Cir., March 19, 2012), the 8th Circuit agreed with the district court that a Jewish prisoner was not entitled to compensatory damages for authorities' refusal to permit him to erect and eat his meals in a Sukkah during the holiday of Sukkot. The PLRA permits damages only if there has been physical injury.  The 8th Circuit also agreed that defendants were entitled to qualified immunity.


In Munoz v. Tilton, 2012 U.S. Dist. LEXIS 35412 (ND CA, March 15, 2012, a California federal district court allowed an inmate to move ahead with his claim that his free exercise and RLUIPA rights were infringed when authorities withheld religious CDs mailed to him because they were not from an approved vendor.


In Black v. Walker, 2012 U.S. Dist. LEXIS 35076 (MD GA, March 15, 2012), a Georgia federal district adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 35142, Feb. 13, 2012) and permitted a Muslim inmate to move ahead with his complaint that he has been disciplined for refusing to shave his beard.

In Kempvanee v. Skolnik, 2012 U.S. Dist. LEXIS 34858 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations 2012 U.S. Dist. LEXIS 34857 (Feb.13, 2012),  and dismissed free exercise and RLUIPA claims by an inmate who practices the Asatru religion. Plaintiff objected to confiscation of his cardboard religious altar and refusals to permit him to use the sweat lodge/sauna.

In Soria v. Nevada Department of Corrections, 2012 U.S. Dist. LEXIS 33956 (D NV, March 14, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 33953, Feb. 7, 2012) and dismissed a Jewish inmate's claim that his rights were infringed when authorities would not furnish him outdoor space and materials or funds for a Sukkah.

In Lute v. Johnson, 2012 U.S. Dist. LEXIS 36179 (D ID, March 16, 2012), a Jewish inmate alleged that he was wrongfully denied a kosher diet. The Idaho federal district court refused to dismiss his claim at this time, but gave him 10 days to submit evidence of the sincerity of his religious beliefs.

In Smith v. Perlman, 2012 U.S. Dist. LEXIS 36642 (ND NY, March 19, 2012), a New York federal district court permitted a Muslim plaintiff to move ahead with has claim that while in keeplock he was wrongly denied permission to attend congregate religious services. However it dismissed his complaint that on one occasion he was not taken to a Saturday study group. The magistrate's recommendation in the case is at 2012 U.S. Dist. LEXIS 36838, Feb. 28, 2012.

In Funtanilla v. Williams, 2012 U.S. Dist. LEXIS 36808 (ED CA, March 16, 2012), a California federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims that he was not permitted to place a copy of the Ten Commandments above his cell door, he was not provided with enough food so that he did not have to walk on the Sabbath, and was not allowed to attend group services. His claim as to lack of a pastor on Saturdays was dismissed.

Pope Begins Visit To Mexico and Cuba

Pope Benedict XVI began his visit to Mexico and Cuba on Friday. (See prior related posting.) While on his way, he followed the tradition is sending telegrams from the Papal plane to the leaders of the countries he was flying over. (Full text of English language telegrams.) His messages were sent to the leaders of Italy, France, Great Britain, Ireland, Denmark,  Canada and the United States. Zenit reports on the Pope's press conference on board his plane covering topics such as violence in Mexico, liberation theology and liberty in Cuba. The Pope's first speech in Mexico was at the welcoming ceremony in Guanajuato (full text of remarks.) The Pope made reference in his remarks to freedom of religion. Subsequently, according to MSN News, a spokesman expanded on that theme, tying it to the debate in Mexico over proposed legislation (already approved by the Lower House) that would end the restriction on religious ceremonies in public places and the ban on religious involvement in politics. Opponents say the government is using the Pope's visit to promote the legislation and also criticize the Pope for visiting just a week before campaigning starts for the July 1 general elections.

Secularist Rally On National Mall Draws Thousands

Billed by supporters as "the largest gathering of the secular movement in world history," yesterday between 10,000 and 20,000 people gathered on the National Mall in Washington for the Reason Rally according to a report by Metro Weekly. The featured speaker was British author and scientist Richard Dawkins. No current politicians spoke at the rally, but former Iowa Senator Tom Harkin and former California Representative Pete Stark sent greetings.

Indian Court Dismisses Petition By Woman Who Married A Hindu But Claims She Retained Her Zoroastrian Religion

A court in India has dismissed a petition by a Parsi (Zoroastrian) woman who had married a Hindu man and who wanted a court order that would assure her right to enter Parsi religious places to witness the last rites for her parents when they die.  The Valsad Parsi Anjuman Trust had previously barred another woman under similar circumstances from attending her parents' last rites at a fire temple and tower of silence.  Indian Express and Ahmedabad Mirror reported yesterday that a 3-judge panel of the Gujarat High Court dismissed the petition.  Two of the three judges held that there is a presumption under the Special Marriage Act that a woman acquires the religion of her husband, unless she obtains a court declaration that she has maintained her prior religion. Justice Kureshi, while concurring in the dismissal of the petition, disagreed with the majority on the question of whether the wife should be presumed to have changed her religion.

Allowing Bishops To Limit Uses of Trafficking Victims Act Funds Violates Establishment Clause

In American Civil Liberties Union of Massachusetts v. Sebelius, (D MA, March 23, 2012), a Massachusetts federal district court held that the Department of Health and Human Services violated the Establishment Clause when, in selecting the U.S. Council of Catholic Bishops to administer funds under the Trafficking Victims Protection Act, it permitted USCCB to impose religious restrictions on use of grant funds. The Bishops prohibited grantee subcontractors from using grant funds to refer trafficking victims for abortion services or contraceptive materials. After concluding that plaintiffs had standing and that the case was not moot despite the fact that the HHS contract with USCCB had expired, the court found Establishment Clause problems with the arrangements.  Permitting USCCB to place a religiously motivated restriction in contracts with grantees amounts to a governmental endorsement of a religious belief. HHS, in delegating to a religious organization the authority to exclude certain services from government funding provides a significant symbolic benefit to religion.  Religion Dispatches reports on the decision. (See prior related posting.)

Russian Court Rejects 2nd Narrower Attempt To Ban Bhagavad Gita Commentary

According to The Hindu, earlier this week a Russian court for a second time rejected attempts by prosecutors to ban the Russian translation of the book, Bhagavad Gita As It Is.  As previously reported, in December a court in Tomsk dismissed an attempt to classify the book as extremist literature. Following that, the prosecutor changed the petition to seek a ban not the text of the Bhagavad Gita but only on the Russian translation of the comments to it written by A.C Bhaktivedanta Swami Prabhupada.  However the court also rejected this attempt.

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.