Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Expanding the Bob Jones Compromise, (Matters of Faith: Religious Experiences and Legal Responses in the United States, Austin Sarat, ed., Cambridge University Press, Forthcoming).
• Wilson Ray Huhn, The Growing Acceptance and Legal Recognition of Same-Sex Marriage in America Constitutes a Victory for Reality-Based Thinking, (April 22, 2012).

From SmartCILP and elsewhere:

• Robert Audi, Natural Reason, Religious Conviction, and the Justification of Coercion in Democratic Societies, [Abstract], 4 Journal of Law, Philosophy & Culture. 1-28 (2009).
• Susanna Frederick Fischer, Catholic Social Teaching, the Rule of Law, and Copyright Protection, 4 Journal of Law, Philosophy & Culture 63-72 (2009).
• Haider Ala Hamoudi, Judicial Review of Islamic Law Under Iraq's Constitution, Jurist, April 2012.

Popular Egyptian Actor-Comedian Sentenced To 3 Months For Insulting Islam

AP reported Friday that an Egyptian court has sentenced a popular Egyptian film actor and comedian to 3 months in jail and a fine equivalent to $170 for insulting Islam in roles he played in some of his most popular movies.  Adel Imam was found guilty on the basis of his roles in "The Terrorist", "Terrorism and Kabab", and "Morgan Ahmad Morgan." The case against Imam is one of several brought by conservative lawyers in recent months against those they believe have offended Islam.

Recent Prisoner Free Exercise Cases

In McCoy v. Henderson, 2012 U.S. Dist. LEXIS 56101 (D KA, April 23, 2012), a Kansas federal district court dismissed (with leave to amend) an inmate's claim that he was denied a kosher diet. The inmate had purchased non-kosher food from the commissary.

In Allah v. Mac Sim Butler Detention Facility, 2012 U.S. Dist. LEXIS 56808 (MD AL, April 24, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 57262, March 27, 2012) and dismissed prior to the service of process claims by an inmate that his Bible was taken from him when he transferred institutions. The court also dismissed 8th and 14th Amendment claims based on denial to him of a vegetarian diet.

Muslim Court Employee's Claims Dismissed

In Huri v. Circuit Court, 2012 U.S. Dist. LEXIS 57961 (ND IL, April 25, 2012), an Illinois federal district court dismissed Title VII, free exercise, establishment clause and equal protection claims by a Muslim woman who worked as a Child Care Attendant in the Children's Advocacy Rooms of the Circuit Court of Cook County. Plaintiff, who wore a headscarf for religious reasons, alleged that her supervisor referred to himself an others as good Christians, that she was once involuntarily drawn into a Christian prayer circle conducted by her supervisor, and that she has been subjected to discriminatory treatment and a hostile work environment.

Simulating Legal Process Conviction Upheld

In Runningwolf v. State of Texas, (Ct. Crim. App., March 7, 2012), in an 8-1 decision, Texas' highest appeals court for criminal cases upheld the conviction of defendant for simulating legal process. Appellant had prepared a 10-page long document titled "Non-Statutory Abatement" directing Helen Jean Coleman to submit a child custody dispute to the authority of the ecclesiastic court sitting in Floydada, Texas. A state court had removed the child from her grandmother's home and awarded custody to Coleman, the child's great aunt.

Jury Awards Damages To Lesbian Employee Forced To Attend Religious Services That Condemned Her Sexual Orientation

In Mirella Salemi v. Gloria’s Tribeca, Inc., a New York state trial court jury awarded $400,000 in compensatory damages and $1.2 million in punitive damages to plaintiff who was a chef and manager of a restaurant and was constructively discharged.  According to a press release yesterday from plaintiff's attorneys, when restaurant owner Edward Globakar converted to Pentecostal Evangelical Christianity in 2004, he began closing the restaurant every Wednesday afternoon and forcing employees, including plaintiff who was a Catholic and a lesbian, to attend a prayer service which included condemnation of homosexuality. Also Globakar used slurs against homosexuals regularly at work, and  told plaintiff  to become more effeminate, marry a man and have children, or else she would go to hell.

Church Held Liable For Negligent Supervision of Youth Minister In Traffic Accident

The Louisville Courier-Journal reports that a Kentucky state trial court jury on Thursday found that Open Door Christian Center was negligent in supervising its former youth minister, Derek Coulter, and awarded damages against both the church and Coulter.  Thirteen-year old Jamie Mitchell was killed in an auto accident in which Coulter allowed the boy to drive after a campout that included ten members of the church youth group.  The church argued that the accident occurred on Coulter's day off on a campout that was not an official church trip, and that in any event it could not have foreseen that Coulter would let a youth drive.  However plaintiffs argued that the church should have known that Coulter had allowed at least eight youths to drive or steer his vehicle. The verdict included a $1 million wrongful death award against the church, which will be reduced by 20% because of Mitchell's contributory negligence. It also includes $150,000 to Mitchell's now divorced parents for loss of consortium, as well as $1 million assessed against Coulter personally for outrageous conduct. [Thanks to Joshua Denton for the lead.]

Taco Bell Franchisee Settles EEOC Suit On Religious Accommodation of Nazirite Employee

The EEOC announced yesterday that Family Foods, Inc., a North Carolina corporation that operates a chain  of Taco Bell restaurants has settled an EEOC lawsuit that had been brought against it charging that the company failed to accommodate the religious needs of a Nazirite employee whose religious beliefs prohibited him from cutting his hair. After Christopher Abbey worked at the restaurant for six years, the company informed him he could no longer work for the company unless he cut his hair to comply with its grooming policy. In the settlement, the company agreed to pay $27,000 in damages, adopt a formal religious accommodation policy, post a copy of its policy and conduct annual training on Title VII.

Sebelius Questioned On Constitutional Basis For Contraceptive Coverage Mandate

Catholic News Agency reports on the testimony of Health and Human Services Secretary Kathleen Sebelius' April 26 testimony at a hearing before the Education and Workforce Committee of the House of Representatives. While the hearing was to focus on the HHS budget, South Carolina Rep. Trey Gowdy  questioned Sebelius about the constitutional basis for the controversial mandate under the Affordable Care Act requiring health insurance policies to cover contraceptive services. (Video of questioning.) Gowdy questioned Sebelius about the level of scrutiny to be applied to actions that infringe religious exercise and about specific Supreme Court precedents. Sebelius responded that she is not a constitutional lawyer and that she relied on discussions with her Department's lawyers in developing the mandate.

Secularist Group Sues Country Club For Canceling Its Dinner

Center for Inquiry- Michigan, a secularist group, has filed suit in a Michigan federal district court against the Wyndgate Country Club in Rochester Hills (MI) alleging discrimination on the basis of religion in violation of federal and state civil rights laws. M Live today reports that the lawsuit was prompted by the country club's cancellation of a 100 seat, $95 per person dinner scheduled for last October featuring noted atheist Richard Dawkins. According to the complaint in the lawsuit, club employees notified the Center for Inquiry that its event was cancelled because the country club owner, Larry Winget, "does not wish to associate with certain individuals or philosophies."

Parish's Property Held In Trust For Episcopal Church

In Convention of the Protestant Episcopal Church in the Diocese of Tennessee v. Rector, Wardens and Vestrymen of St. Andrew's Parish, (TN App., April 25, 2012), a Tennessee appeals court held that property of a break-away parish, under the Episcopal Church's Dennis Canon as well as the Diocese's own governance documents, was held in trust by by the congregation for the Diocese of Tennessee. Despite arguments to the contrary by defendants, the court held that: "There is nothing in the language of the relevant documents to indicate that the hierarchical organization of the church is not applicable to the control and ownership of real property." The court concluded:

St. Andrew’s argument that courts must look only to the deed ignores the holdings of Tennessee and other courts that application of neutral principles of law in intrachurch property disputes includes consideration of church governing documents, not just the document transferring the property.

Suit Withdrawn After Good News Club Gets To Distribute Flyers To Students

Alliance Defense Fund announced yesterday that it had filed a Notice of Dismissal (full text) in Child Evangelism Fellowship Phoenix v. Dysart Unified School District, (D AZ, dismissal filed 4/26/ 2012).  Plaintiffs had filed suit in January (full text of complaint) challenging a school policy that allowed nonprofit organizations and community groups to distribute flyers in the schools, but excluding flyers "of a commercial, political or religious nature." According to the Notice of Dismissal:

7. Shortly after Plaintiffs filed their Complaint, the District approved the Plaintiffs’ requests to distribute Good News Club flyers at West Point Elementary and at another elementary school within the District where Plaintiffs were starting a Good News Club.

8. In addition, the District agreed to, and did on April 4, 2012, change Policies K-0900 and K-2300 so that they no longer expressly discriminate against religious speech and speakers, but instead grants them equal access to the District’s literature distribution forum.

U.S. Envoy Protests Anti-Semitism In Swedish City

The Forward reported yesterday that Hannah Rosenthal, the United States special envoy to monitor and combat anti-Semitism, held a meeting earlier this week with Ilmar Reepalu, mayor of the Swedish city of Malmo, to call attention to the anti-Semitism rampant in the city and the city's lack of adequate response to it. Malmö’s only rabbi, Shneur Kesselman, has been the victim of more than 50 anti-Semitic incidents during his 8 years serving the 760 members of the city's Jewish community. The anti-Semitism comes mainly from Muslims and anti-Israel activists in the city. Malmo has 45,000 Muslims, most of whom live n the eastern part of the city where the unemployment rate is 80%. The mayor has angered the city's Jewish community by saying it bears responsibility for the anti-Semitic attacks because it has not condemned Israeli treatment of Palestinians.

Pennsylvania Supreme Court Invalidates Broader Tax Exemptions For Religious Institutions

In Misivtah Eitz Chaim of Bobov v. Pike County Board of Assessment Appeals, (PA Sup. Ct., April 25, 2012), in a 4-3 decision, the Pennsylvania Supreme Court held that Act 55, a statute passed by the state legislature in 1997 in an attempt to expand the non-profit institutions entitled to real property tax exemptions violates the Pennsylvania constitution. At issue in the case was a tax exemption for a Jewish summer camp. The state constitution limits property tax exemptions to institutions of "purely public charity." Pa. Const. art. VIII, § 2(a)(v). The Pennsylvania Supreme Court in a 1985 case (Hospital Utilization Project v. Commonwealth) defined those institutions, holding that they must meet 5 criteria. One of those is that they must relieve the government of some of its burden. The legislature subsequently enacted Act 55 which defined relieving the government of some of its burden broadly. Included was any institution that "Advances or promotes religion and is owned and operated by a corporation or other entity as a religious ministry and otherwise satisfies the criteria" for a purely public charity. The majority held that this expansion goes beyond the definition set out in the Hospital Utilization Project case, and that Act 55 "cannot excuse the constitutional minimum."

The 3 dissenters in an opinion by Justice Saylor argued that the Court should give more deference to the legislature in interpreting the constitutional provision at issue. He wrote in part:

I would uphold the General Assembly’s reasonable policy determination that Act 55, with its broader definition of the ways in which an institution can demonstrate that it relieves the government of some of its burden ... serves to advance the morals and ethics of society....

[Thanks to Steven H. Sholk for the lead.] 

Delhi, India Will End Helmet Exemption For Women That Originated For Religious Reasons

The government of the national capital territory of Delhi, India told the Delhi High Court on Wednesday in response to a public interest lawsuit that it plans to end the exemption for women from the requirement to wear a helmet when riding on a motorcycle. According to India Today, the exemption had a religious origin. India's national Motor Vehicles Act (Sec. 129) requires all motorcycle riders-- except for Sikh men wearing turbans, and others exempted by State government rules-- to wear a helmet.  Just as Sikh men objected on religious grounds to helmets, so did Sikh women who can only wear a chunni. In Delhi, traffic police found it difficult to distinguish Sikh women from other women in enforcing the rule. So Delhi Motor Vehicles Rule 115 was adopted that made helmets optional for all women. That exemption will now be repealed within two months.

Egyptian Women's Group Protests Bills In Islamic Dominated Parliament

Al Arabiya News reported Wednesday that Egypt's National Council for Women is protesting proposed new laws being considered by the country's Islamic-dominated Parliament that will undermine women's rights. The most widely reported and inflammatory of the proposals (see reports in RT, London Mail), building on a fatwa issued last year by Moroccan cleric Zamzami Abdul Bari, would allow husbands to have sex with their deceased wives up to six hours after the wife's death. Apparently Bari said that since the marriage remains valid even after death, either spouse could have post-death intercourse with the other. A second proposed law that is of concern to women's rights activists is one that would allow girls to marry at the age of 14. Islamists also want to repeal the Islamic right to divorce law (Khula) enacted in Egypt over a decade ago that allows women to obtain a divorce without obstruction by their husband.

UPDATE: A number of media outlets now question the accuracy of the widely published report regarding a proposed law allowing post-death intercourse. The Daily Mail now quotes a source in the Egyptian Embassy in London as saying the report is completely false, and that even if the proposal existed it had not reached Parliament. According to Volokh Conspiracy, the original report was in Al Ahram, a paper controlled by the Egyptian military that has an interest in discrediting Islamists in Parliament. Al Aribiya that then picked up the story is controlled by Saudis who may also be concerned about Islamists gaining Parliamentary power.

Rhode Island City Will Likely Move Cross To Private Property Rather Than Litigate

AP reported yesterday that the mayor of Woonsocket, Rhode Island will likely move a cross that for over 90 years has been displayed as part of a memorial to American servicemen killed in France in World War I.  After a letter (full text) from the Freedom From Religion Foundation, the mayor says he may move the memorial from its present location in the firehouse parking lot to a more prominent location on private property.  City Council President John Ward said he believes the cross is more of a historical than a religious symbol, but the city cannot afford to litigate the issue. As reported in an FFRF press release, questions were also raised about the FireFighters Prayer and the picture of an angel on portions of the Fire Department's website. It is unclear how the city will respond to this.

Meanwhile, however, Woonsocket resident Jason LaRose who is a co-founder of Ocean State Atheists says he opposes moving the memorial. WJAR News quotes him as saying that the memorial does not promote Christianity, but "only represents the soldiers who were killed, who were most likely Catholics."

Ryan, Georgetown Faculty Joust Over Meaning of Catholic Social Teachings

Georgetown University today was the scene of an unusual debate over how to apply Catholic teachings to U.S. budget policy. Rep. Paul Ryan, chairman of the House Budget Committee delivered Georgetown's Whittington Lecture (full text of remarks). Ryan explained his budget proposals and justified them in light of Catholic social teachings, saying in part:

[S]ince we meet today at America’s first Catholic university, I feel it’s important to discuss how, as a Catholic in public life, my own personal thinking on these issues has been guided by my understanding of the Church’s social teaching.

Simply put, I do not believe that the preferential option for the poor means a preferential option for big government.... In this war on poverty, poverty is winning. We need a better approach.

To me, this approach should be based on the twin virtues of solidarity and subsidiarity – virtues that, when taken together, revitalize civil society instead of displacing it.

Government is one word for things we do together. But it is not the only word. We are a nation that prides itself on looking out for one another – and government has an important role to play in that. But relying on distant government bureaucracies to lead this effort just hasn’t worked.

....We aim to empower state and local governments, communities, and individuals – those closest to the problem. And we aim to promote opportunity and upward mobility by strengthening job training programs, to help those who have fallen on hard times.

Before Ryan's speech, nearly 90 Georgetown faculty and administrators sent him a letter objecting to his attempts to use Catholic doctrine to justify his budget. (Huffington Post). The letter (full text) says in part:

[W]e would be remiss in our duty to you and our students if we did not challenge your continuing misuse of Catholic teaching to defend a budget plan that decimates food programs for struggling families, radically weakens protections for the elderly and sick, and gives more tax breaks to the wealthiest few..... In short, your budget appears to reflect the values of your favorite philosopher, Ayn Rand, rather than the Gospel of Jesus Christ. Her call to selfishness and her antagonism toward religion are antithetical to the Gospel values of compassion and love....

While you often appeal to Catholic teaching on “subsidiarity” as a rationale for gutting government programs, you are profoundly misreading Church teaching. Subsidiarity is not a free pass to dismantle government programs and abandon the poor to their own devices. This often misused Catholic principle cuts both ways. It calls for solutions to be enacted as close to the level of local communities as possible. But it also demands that higher levels of government provide help -- “subsidium”-- when communities and local governments face problems beyond their means to address...

6th Circuit: Evangelist Has Standing; Campus Speaker Rule Unreasonable

McGlone v. Bell, (6th Cir., April 23, 2012), is a challenge by  Christian evangelist John McGlone to rules at Tennessee Technological University that require non-affiliated individuals and groups to obtain permission to speak on certain parts of the campus through a procedure that requires 14-days advance notice.  McGlone visited campus to speak with students one-on-one and in small groups, distribute literature and display signs, but was told he could only do so at one rather isolated location on campus. When he spoke elsewhere on campus, he was threatened with arrest. Reversing the district court (see prior posting), the U.S. 6th Circuit Court of Appeals held that McGlone has standing to challenge the campus rules, even though he had not applied for a permit. It went on to hold that perimeter sidewalks on the University's campus are traditional public forums, and other open spaces on campus are designated public forums. It held that the University's advance notice requirements are unreasonable, and vacated the district court's denial of a preliminary injunction.

Suit Challenges Property Tax Treatment of Churches vs. Non-Profits

A lawsuit filed in state court in Maine this week challenges the treatment under the state's property tax law of houses of worship as opposed to other charitable and benevolent non-profits.  At issue, according to a release from Alliance Defense Fund, is a decision by the city of Rockland to grant a local church a tax exemption only for its building and not for the parsonage it owns or for its parking lot. Apparently the parsonage is now being used for the pastor of a different church.  All property of non-profits formed for charitable and benevolent purposes is tax exempt. Houses of worship get exemptions only for their main building, certain personal property and for the parsonage for their cleric up to $20,000. (36 MRSA Sec. 652). The complaint (full text) in Aldersgate United Methodist Church v. City of Rockland, Maine, (ME Super. Ct., filed 4/23/2012), claims that the church should have been granted an exemption as a charitable and benevolent institution, given its services to the community.  The suit alleges that treating the church differently violates the equal protection clause and the free exercise and establishment clauses of the U.S. Constitution. [Thanks to Rick Duncan via Religionlaw for the lead.]