Recent Articles of Interest

From SSRN:

• Marie Ashe, Women's Wrongs, Religions' Rights: Women, Free Exercise, and Establishment in American Law, (21 Temple Political & Civil Rights Law Review 163, Fall 2011).
• Mary S. Holland, Compulsory Vaccination, the Constitution, and the Hepatitis B Mandate for Infants and Young Children, (Yale Journal of Health Policy, Law, and Ethics, Vol. 12, No. 1, p. 39, 2012).
• Sarah Sternlieb, When the Eyes and Ears Become an Arm of the State: The Dangers of Privatization Through Government Funding of Insular Religious Groups, (Emory Law Journal, Forthcoming).

From SmartCILP:

• Haider Ala Hamoudi, Present at the Resurrection: Islamic Finance and Islamic Law, [Abstract], 26 American University International Law Review 1107-1123 (2011).

One Defendant Dismissed In Establishment Clause Challenge To Library Internet Filtering Policy

In Hunter v. City of Salem, 2012 U.S. Dist. LEXIS 50782 (ED MO, April 11, 2011), a Missouri federal district court dismissed as to one defendant a free expression and and Establishment Clause challenge to the Internet filtering policies of the Salem, Missouri public library.  Plaintiff, who was attempting to conduct research on Native American spirituality and on the Wiccan Church claimed that the library's policy of blocking religious websites categorized as 'occult' or 'criminal skills' while allowing access to the websites of more mainstream religions" was a content and viewpoint-based restriction on speech and has the effect favoring one religious viewpoint over another in violation of the Establishment Clause. The court dismissed the city as a defendant finding that the city retained no control or oversight over the library that was governed by a separate Library Board. The suit however will move forward against the Library Board and the library's director. (See prior related posting.)

Required Parochial School Reporting of Suspected Child Abuse Clarified By New York

Failed Messiah reports that New York State last week updated its guidelines for Mandated Reporters of  Child Abuse and Neglect as they apply to non-public schools. (Full text of April 9 revisions.) The revisions make it clear that parochial school staff is not to delay reporting in order to ask permission of the person in charge of the school, even if that person is a member of the clergy. The changes are apparently in response to suggestions by some Orthodox rabbis that teachers, social workers and other professionals who are mandated by state law to promptly report suspected cases of sexual abuse should first consult a rabbi. (See prior posting.) The New York reporting requirements apply to suspected abuse of children by their parents or guardians, or by workers in day care programs or residential facilities. It generally does not apply to abuse inflicted on a child on non-public school property by another school employee.

In a related development, in Villarin v Rabbi Haskel Lookstein School, (NY App. Div., April 12, 2012), a New York appellate court in a 2-1 decision held that a school nurse in a Jewish school has a cause of action under the state's Whistleblower Law (Labor Law Sec. 740) when she was fired because she reported a father's injury of his son to New York's State Child Abuse and Maltreatment Register. JTA reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Hobbs, 2012 U.S. Dist. LEXIS 48134 (ED AR, April 5, 2012), an Arkansas federal district court adopted a magistrate's recommendations and refused to grant summary judgment on the basis of qualified immunity in a case in which a Christian inmate was, for 16 months, denied a vegan diet that he requested for religious reasons. UPDATE: The magistrate's recommendations are at 2012 U.S. Dist. LEXIS 57080, Feb. 21, 2012.

In Mitchell v. Cate, 2012 U.S. Dist. LEXIS 49111 (ED CA, April 6, 2012), a California federal magistrate judge held that a Muslim inmate may proceed with his claims against certain defendants alleging a denial of his requests for a Halal diet, or may file an amended complaint to also cure defects in pleadings as to claims against other defendants.

In Hightower v. Tilton, 2012 U.S. Dist. LEXIS 50362 (ED CA, April 9, 2012), a California federal district court permitted an inmate to proceed with his claim against the Aeministrative Segregation property officer that his Bible was confiscated for the time he was in Ad-Seg, and his claim against several defendants that his classification after being released from Ad-Seg resulted in restrictions that denied him access to religious services and group prayer services.

In Al-Amin v. TDOC Commissioner, 2012 U.S. Dist. LEXIS 51442 (MD TN, April 11, 2012), a Tennessee federal district court allowed a Muslim inmate to proceed with his claim that defendant deprived him of foods that he would have been able to eat during Ramadan. However the court dismissed a number of other claims involving refusal to recognize his name change, being refused a "no-meat tray," a corrections officer stepping on his prayer rug, and being told a corrections officer would like to burn any Qur'an he sees.

Muslim Groups Oppose Senate Republicans' Recent USCIRF Appointee

On Thursday, over 60 Muslim organizations sent a letter (full text) to three key U.S. Senators urging them to rescind the nomination of Dr. Zudhi Jasser as a member of the U.S. Commission on International Religious Freedom. Commissioners are appointed separately by the President and by House and Senate leaders of each political party. Jasser was appointed by Senate Republican minority leader Mitch McConnell. (See prior posting.) The groups' letter was addressed to McConnell, to Senate president-pro-tem Daniel Inouye and to Sen. Richard Durbin, Chairman of the Senate Constitution, Civil Rights and Human Rights Committee. The letter argues that Jasser has demonstrated "consistent support for measures that threaten and diminish religious freedoms within the United States." It cited in particular his positions on the Oklahoma anti-Shariah ballot initiative, the Manhattan Park 51 controversy, and his support of religious profiling by law enforcement. It also pointed out that he accepted an award from an anti-Muslim think tank. The American Arab Anti-Discrimination Committee issued a press release announcing the letter.

Suit Charges Mistreatment of Muslim-Americans At U.S. Canadian Border

The Detroit News reported Friday that four Muslim-Americans have filed a lawsuit against the U.S. government alleging that they have at various times been detained, handcuffed, subjected to humiliating questioning and invasive body searches when crossing the Canadian-American border. They allege that the treatment is based on their religion and ethnic background. The suit, filed by CAIR and a Detroit area attorney, says that plaintiffs have been questioned about which mosque they attend and about their religious practices.

Former Employee of Library of Congress Sues Claiming Anti-Gay Religious Harassment

WRC reported Thursday that a former Library of Congress management analyst has filed suit after he was fired on Friday. He had been on leave without pay since October.  Plaintiff, Peter TerVeer, who is gay, alleges he was harassed for more than a year by a supervisor who repeatedly cited Bible passages condemning homosexuality.  In 2009, his supervisor sent him an e-mail reading: "Jesus ... prohibited sexual immorality, including homosexuality, adultery and pre-marital sex." TerVeer says he is now out of money and has recently been evicted.

Tennessee Governor Signs Bill On Religion In Schools

As reported by CBN, on April 10 Tennessee Gov. Bill Haslem signed HB 3266 into law. The bill makes two changes in Tennessee law regarding religion in schools. In reaction to Cheatham County's 2010 settlement of a lawsuit involving religious activities in schools (ACLU summary), the bill prohibits local education agencies and school administrators from taking any action that would infringe the rights or freedoms of students, teachers or staff without their written consent.An amendment to the bill that also passed provides that:

LEAs [Local Education Agencies] and school administrators may not prohibit personnel from participating in religious activities on school grounds that are initiated by students at reasonable times before or after the instructional day so long as such activities are voluntary for all parties and do not conflict with the responsibilities or assignments of such personnel.

SEC Files Suit In Affinity Fraud Aimed At Socially Conscious Church-Goers

The Securities and Exchange Commission announced Thursday that it had filed a federal lawsuit in Atlanta against Ephren W. Taylor, II, the operator of an $11 million Ponzi scheme that targeted socially conscious African-American church-goers.  The complaint (full text) in Securities and Exchange Commission v. City Capital Corp., (ND GA, filed 4/12/2012) alleged in part:

Taylor strenuously cultivated an image of a highly successful and socially conscious entrepreneur. Marketing himself as "The Social Capitalist," he touted equally his status as the youngest black CEO of a public company and the son of a Christian minister who understands the importance of "giving back.".... Taylor conducted a multi-city "Building Wealth Tour," on which he spoke to church congregations – including Atlanta’s New Birth Church – or at wealth management seminars featuring other speakers.

Christian Post reports on the case.

Student's Rights Not Infringed By Bus Driver's Lecture On Tolerance

In R.Z. v. Carmel Clay Schools, (SD IN, April 11, 2012), an Indiana federal district court granted summary judgment to defendants in a case in which parents challenged a lecture given by a public-school bus driver in 2008 to students on the bus. Her remarks were triggered by anti-gay and religious statements the parents' eighth-grade daughter had made. The bus driver (whose lengthy statements were recorded by school bus surveillance equipment) said in part:

This week we had a very historic election. Okay. It’s called diversity in this country. The diversity here – we’ve got kids on this bus who are Jewish, Catholic, I’ve had Muslims, I’ve had Buddhists, Sikhs, fine. That’s why we are what we are. I don’t care if you’re gay. I don’t care what you are. All those diverse things are what make this country what it is. I don’t care if you are evangelical. What I will not tolerate is your own personal views being espoused on this bus that you are going to go to hell if you don’t do it the way I do it. We’ve had this conversation before, we’ve had it for three years. We’re not going to have it again. If you can’t believe in tolerance towards one another, you don’t belong here. You belong in a parochial church school. I don’t want to hear one more word about anybody going to hell if they are gay or if they’re Buddhist or whatever, cause it is none of your damn business.

The court rejected claims that the student's free expression, free exercise and equal protection rights had been infringed.

American Nazi Party Deploys Registered Lobbyist For First Time

For the first time, the American Nazi Party has a registered lobbyist in Washington, D.C.  Michigan resident John Bowles has filed a Lobbying Registration form (full text) with Congress, listing his client as "ANP". Haaretz reported today that 55-year old Bowles, an American Nazi Party member told ABC that lobbying was  something that the Party wanted to "try out for the first time and see if it flies." The American Nazi Party's has created a new website devoted to its lobbying activities.

Catholic Bishops Issue New Statement On Challenges To Religious Liberty

The U.S. Conference of Catholic Bishops on Thursday issued a new call to action to defend religious liberty.  In a document titled Our First Most Cherished Liberty: A Statement on Religious Liberty, the bishops said:

As Catholic bishops and American citizens, we address an urgent summons to our fellow Catholics and fellow Americans to be on guard, for religious liberty is under attack, both at home and abroad.

The statement cites 7 specific areas of concern to the bishops: the HHS mandate on contraceptive coverage in health insurance policies; state immigration laws that threaten pastoral outreach to illegal immigrants; a Connecticut bill that would have forced restructuring of parish governance; Hastings College of Law denial of recognition to the Christian Legal Society because of religious limits on who could be leaders; governmental refusals to fund Catholic foster care and adoption services that refuse to place children with same-sex couples; New York City's rule against churches renting out space in school buildings on weekends; and disqualifying USCCB from administering human trafficking grants because it will not provide or refer for contraceptive or abortion services. (See prior related posting.)  [Thanks to Marty Lederman via Religionlaw for the lead.]

Kentucky Governor Signs Into Law Bill Giving Amish Alternatives For Buggy Signage

AP reports that on Wednesday, Kentucky governor, Steve Beshear, signed SB 75 into law. The bill gives Amish horse-drawn buggies the alternative to use lanterns and white reflective tape instead of the orange triangle -- the standard slow-moving vehicle symbol-- to which Amish have religious objections. (See prior posting.)

Tennessee Governor Lets Bill On Science Teaching Become Law Without His Signature

The Tennessean reports that Tennessee Governor Bill Haslam on Tuesday returned HB 368 to the legislature without either vetoing or signing it. The bill on teaching of controversial scientific topics, including evolution, global warming, the origins of life and human cloning, will thus become law without his signature. The bill (which passed the legislature by large majorities) encourages schools to help students "respond appropriately and respectfully to differences of opinion about scientific subjects required to be taught under the curriculum framework developed by the state board of education." It goes on to provide that "teachers shall be permitted to help students understand, analyze, critique, and review in an objective manner the scientific strengths and scientific weaknesses of existing scientific theories covered in the course being taught within the curriculum framework developed by the state board of education." (See prior posting.) The governor said that the bill creates confusion, explaining:

I do not believe that this legislation changes the scientific standards that are taught in our schools or the curriculum that is used by our teachers. However, I also don’t believe that it accomplishes anything that isn’t already acceptable in our schools.

No Basis For Removing State Charges To Ecclesiastical Court

In Prather v. Governor of Washington, 2012 U.S. Dist. LEXIS 49810 (WD WA, April 9, 2012), a Washington federal district court dismissed a civil rights lawsuit in which plaintiff claimed that state criminal proceedings against him alleging domestic violence and drug charges should have been removed to an ecclesiastical court.  Vincent Prather argued that "[t]he Bible forbids Christians from asserting or defending their rights in a secular court."  The court said that religious convictions do not exempt an individual from laws that are generally applied to all citizens.

Tunisia's President Condemns Violence Against Jews At Ceremony Marking Synagogue Bombing

Moncef Marzouki, a human rights activist who was elected Tunisia's interim president last December following the country's "Arab Spring" demonstrations, yesterday reached out to Tunisia's 2600-year old Jewish community.  According to Tunisia Alive, Marzouki attended a ceremony at the El Ghriba Synagogue in Djerba to commemorate the 2002 Al-Qaeda truck bombing of the synagogue that killed 21 people.  In his remarks at the ceremony, Marzouki said that "any vandalism or violence against the Tunisian Jewish people, their property or their holy sites is totally unacceptable."  In three demonstrations by conservative Salafist Muslims in recent months, demonstrators have called for Muslims to kill or wage war against Jews.

Report Calls For More Diversity In Now-Denominational Irish Primary Schools

In Ireland yesterday, the government's Department of Education and Skills released a report of an advisory group calling for more diversity in primary schools in the country. According to the department's release:

The report notes that while 96% of education provision at primary level is denominational arising from the historical development of Irish primary education, there is clearly increased demand for new forms of multi-denominational and non-denominational schooling, as well as increased demand for Irish language schooling. 

Minister Quinn said "Parental choice should be our main concern. Over recent decades, Irish society has been undergoing major political, social, economic, cultural, demographic and educational change. Primary school provision needs to reflect this changed society and provide for increased diversity."

Links to the full report and other related primary source material are available from the Department's website. According to yesterday's Irish Times, a key recommendation in the report is the elimination of Rule 68 of the Rules for National Schools that calls religious instruction the most important part of the school's curriculum. [Thanks to Alliance Alert for the lead.]

Recent Prisoner Free Exercise Cases-- Weekly Installment #2

In Smith v. Secretary of CDCR, 2012 U.S. Dist. LEXIS 47183 (ED CA, April 3, 2012), a California federal magistrate judge rejected a claim for damages brought by an inmate who said he was a real Jew descended from Black Hebrew Israelites, and that he was refused kosher meals. The court ruled that money damages are not available for violations of RLUIPA.

In Neal v. Cross, 2012 U.S. Dist. LEXIS 46878 (SD IL, April 3, 2012), an Illinois federal district court rejected an inmate's claim that his free exercise rights were infringed when his visit with his wife was cut short for unauthorized contact after a guard whispered to the officer in charge: "Muslims think they own the world."

In Heim v. Moore, 2012 U.S. Dist. LEXIS 46786 (MD PA, April 3, 2012), a Pennsylvania federal district court allowed an inmate to proceed with is 1st Amendment free exercise and his equal protection claims (but not his RLUIPA claim) for damages after granting his request for a kosher diet was delayed without explanation for over 5 months.

In Azor v. City of New York, 2012 U.S. Dist. LEXIS 47067 (ED NY, March 30, 2012), a New York federal district court rejected claims by a Rastafarian inmate that his free exercise rights were violated during his 12-hours of pre-trial detention when he was deprived of time to himself in a cell to pray, his pocket-size Bible was taken away, and he was denied prayer towels, a proper head covering and vegetarian or kosher food. He also claimed unsuccessfully that arresting officers made abusive comments about his religion.

In Bey v. Pennsylvania Board of Probation & Parole, 2012 U.S. Dist. LEXIS 47459 (MD PA, April 4,2012), a Pennsylvania federal district court permitted an inmate to proceed with his free exercise claim that defendants are forcing him to attend a drug and alcohol treatment program that violates his religious beliefs in order to obtain parole or a favorable parole recommendation.

In Cobb v. Mendoza-Powers, 2012 U.S. Dist. LEXIS 48572 (ED CA, April 5, 2012), a California federal magistrate judge allowed an inmate to proceed with his free exercise challenge to the continued enforcement of a prison grooming policy that had been found unconstitutional. Plaintiff, who had taken a vow not to comb or shave his hair as a symbol of his relationship with God, was disciplined violating the grooming rules.

In Robledo v. Leal, 2012 U.S. Dist. LEXIS 48359 (ND TX, April 5, 2012), a Texas federal magistrate judge recommended dismissing an inmate's claims that his free exercise rights were violated by strip searches. He believes men should only be unclothed fully in front of their wives. The court also recommended dismissing complaints regarding removal of chairs from the chapel and limitations on the number of inmates who may participate in services at the chapel, as well as plaintiff's contention that searches of him were in retaliation for his attending Catholic services in the chapel.

In Rivers v. Mohr, 2012 U.S. Dist. LEXIS 48191 (ND OH, April 5, 2012), an Ohio federal district court rejected claims by an inmate that the Ohio Department of Rehabilitation and Corrections decision to eliminate pork from inmate meals violated the Establishment Clause, as well as his 8th and 14th Amendment rights. The court said: "The ODRC's decision merely makes accommodating a multitude of religious practices and beliefs easier and more economical for the prison. Nothing in the Complaint suggests that the ODRC endorsed the Muslim religion."

California County Wants Religious Roadside Signs Moved Back

The Butte County, California Public Works department finds itself in the midst of a religion-in-schools dispute.  KHSL-TV News reported Monday on two signs put up next to a county highway by Glenn Stankis who has unsuccessfully run for Paradise Unified School District school board 4 times on a platform of Christian beliefs.  One sign urges schools to teach the Ten Commandments in the 6th grade. The other calls for schools to reinstate the Pledge of Allegiance, including the words "one nation (and school district PUSD) under God."  After receiving complaints about the signs, the public works department decided that they violate county law that requires a 55-foot setback for roadside signs. It is asking Stankis to move the signs to meet the setback requirements. Commenting on the controversy, Stankis said: ""This is a Christian nation the courts have actually ruled that and the district wants to be secular in their outlook."

Egyptian Court Suspends Constitutional Assembly Over Legality of Appointments To It

In Egypt yesterday, Cairo's Administrative Court suspended the newly created 100-member constitutional assembly appointed to draft a new constitution for the country while a panel of judges investigates the legality of the way in which the members were appointed. BBC News and The National report that dissatisfaction with the make-up of the constitutional assembly was growing ever since the two Islamic parties in parliament gave 60 of the seats on the constitution drafting body to Islamists. (However the Muslim Brotherhood's Freedom and Justice Party says that only 48 of the assembly's members are Islamists.) Coptic Christians got very few seats. Over 20 members of the constitutional assembly have already withdrawn in protest, including representatives of the Coptic Church and of the prestigious Sunni institution, Al Azhar. Journalists, professors and liberal secular members of parliament are also  among those who have withdrawn. (See prior posting.) Al Azhar had called for a constitution that guarantees freedoms of worship, opinion, scientific research and art and creative expression, and many politicians have endorsed the proposal. (See prior posting.)