India's Supreme Court Orders Phase Out of Hajj Subsidy

According to Calcutta's The Telegraph, a two-judge bench of India's Supreme Court yesterday ordered the government to phase out over ten years the government's subsidy for Hajj pilgrims, even though another bench of the Supreme Court had previously held the subsidy constitutional. Currently the government subsidizes each pilgrim the equivalent of $730 (US). The court yesterday apparently based its decision largely on the fact that the Qur'an required Muslims to use only their own funds for making the Hajj. Several Muslim leaders welcomed the decision, some saying that the subsidies benefit Air India more than the pilgrims, and that more competition among airlines could lower the cost. The court yesterday also asked the Haj Committee of India and the state Haj committees to explain further the method they use to select pilgrims. The committees have two months to file a reply.

Catholic Business Group Challenges Health Insurance Mandate

Another federal court lawsuit was filed this week challenging the Obama administration's mandate under the Affordable Care Act requiring that health insurance policies fully cover contraceptive services. The suit was filed by Legatus, an organization of Catholic business owners and CEOs, as well as by a member of the organization and his company. The complaint (full text) in Legatus v. Sebelius, (ED MI, filed 5/7/2012) claims that the Mandate violates the free exercise and Establishment clauses, infringes free speech rights and violates RFRA and the Administrative Procedure Act. The complaint alleges:

Complying with the Mandate requires a direct violation of the Plaintiffs’ religious beliefs because it would require Plaintiffs to pay for and assist others in paying for or obtaining  not only contraception, but also abortion, because certain drugs and devices such as the “morning-after pill,” “Plan B,” and “ella” come within the Mandate’s and Health Resources and Services Administration’s definition of “Food and Drug Administration-approved contraceptive methods” despite their known abortifacient mechanisms of action.

The Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Algeria's Election Commission Warns Against Use of Religion In Campaign

In Algeria, the National Legislative Election Monitoring Commission has warned Islamist groups that the country's law on political parties prohibits the use of religion for political ends.  According to Magharebia yesterday, the Commission is concerned about Islamist candidates using religious references in their speeches. Meanwhile, the Religious Affairs Ministry has urged imams to remain neutral in tomorrow's legislative election, saying they are exploiting the office of imam by becoming involved in political arguments. The Religious Affairs Minister has called for daily reports of any recorded wrongdoing, whether by imams or political parties. In the 1990's a civil war in Algeria between the government and the Islamic Salvation Army killed over 150,000 people.

New USCIRF Commissioner Appointed; Child of Holocaust Surviviors

On May 1, former House of Representatives member Sam Gejdenson was appointed by  House Minority Leader Nancy Pelosi to a vacancy on the U.S. Commission on International Religious Freedom. (USCIRF press release.)  Gejdenson is the child of Holocaust survivors, having been born in 1948 in a U.S. displaced persons camp in Eschwege, Germany. While serving in Congress, Gejeenson co-authored the Trafficking Victims Protection Act.

Summary Judgment Denied To Defendants In RLUIPA Zoning Case

In Liberty Temple Full Gospel Church, Inc. v. Village of Bolingbrook, (ND IL, April 12, 2012), an Illinois federal district court refused to grant summary judgment to defendants in a RLUIPA case in which the parties disagreed over what the zoning designation was for the area in which a church leased land on which it wished to build.  The city claimed that the area is not zoned for churches, and that the zoning designation of the area was merely incorrectly left off the county's zoning map. The court said:

This  case,  then,  turns  on  the  issue  of  what  the  property leased was zoned:  B-2 (Community Retail) or B-4 (Commercial Urban Development).  Both sides agree churches are allowed in the latter, but not in the former.  If it is the former, the church was not substantially burdened merely by the fact that it was not allowed to locate wherever it chose.  If  it  is  zoned  B-4, the Village’s  refusal  to  accept building permit application and architectural drawings, and forcing the  church  to  either  apply  for  a  SUP [special use permit]  or  go  to  court,  may  have substantially burdened the Plaintiff in violation of RLUIPA.

See prior related posting.

Judge Suggests Mediator Consider a "6 Commandments" Solution

As previously reported, last September the ACLU filed a lawsuit against the Giles County, Virginia school board challenging a display of historical documents including the Ten Commandments in one of the county's high schools.  NECN News reported yesterday that federal district judge Michael Urbanski sent the case into mediation, suggesting that the parties consider whether the display could be modified by leaving out the four Commandments that mention God.

Allocation of Playing Fields Did Not Violate Establishment Clause

In Rogers v. Mulholland, (D RI, May 4, 2012), a Rhode Island federal district court rejected claims by municipal taxpayers that the city of Pawtucket violated the Establishment Clause in the way it allocated use of publicly owned athletic fields for use by private religious schools. The court said in part:

There is no evidence that the fields are used for anything other than a purely secular purpose. The sectarian school students are receiving a benefit available to all junior high and high school students in the City. Public schools receive preferential assignments for all games. The Court concludes that a reasonable observer aware of the relevant circumstances and context of the City's conduct would not perceive a message of governmental endorsement or sponsorship of religion.

Guantanamo Proceedings Begin With Attorney In Hijab and Delay For Prayer

Facing the action by Congress blocking the trial of Guantanamo Bay inmates on U.S. soil, yesterday five inmates charged with the 9/11 attacks were arraigned in a military tribunal at Guantanamo.  The London Daily Mail reports that Walid bin Attash's attorney Cheryl Bormann, appeared in court wearing a Hijab (Islamic head scarf). She later explained that her client insists  she wear this clothing, and she always does so around him.  She also requested that other women at the hearing dress similarly so that the defendants do not have to avert their eyes "for fear of committing a sin under their faith."  At one point during the hearing defendant Ramzi Binalshibh delayed the proceedings by standing up and then kneeling on the courtroom floor and praying for several minutes, with a row of guards keeping close watch.

Australian State Supreme Court Upholds Prison Sentence For Anti-Semitic Statements and Internet Postings

In O'Connell v. State of Western Australia, (Sup. Ct. W. Aust., May 4, 2012), the Supreme Court of Western Australia upheld the conviction and 3-year sentence (with eligibility for parole) of Australian Brendon O'Connell for harassing a member of a racial group and for promoting animosity toward a racial group. The convictions stemmed from anti-Semitic statements that defendant published on the Internet, as well as statements made directly to Elliot Keyser who was president of the Western Australian Union of Jewish Students. O'Connell engaged in a heated confrontation with Keyser during a protest by Friends of Palestine over a supermarket's sale of Jaffa oranges imported from Israel. O'Connell then posted video footage online accusing Jews, in vivid language, of killing anyone who stood up to them. O'Connell was also prosecuted for blog postings he placed online after he was charged in connection with the video footage.  JTA reports that the prison sentence is the first under Western Australia's racial vilification laws. O'Connell had gone on a hunger strike in an attempt to get the court to hear his appeal.

Jury Awards $5.12 M In Employment Discrimination Suit Against AT&T

AP reports that last Thursday, a state trial court jury in Kansas City, Missouri awarded a Muslim woman $120,000 in lost wages and other actual damages, and punitive damages of $5 million, against AT&T in the largest employment discrimination award in Missouri history.  Susan Bashir, who worked as a fiber optics network builder for ten years converted to Islam in 2005. She was harassed constantly about her religion, and in 2008 her boss pulled off her headscarf and exposed her hair in an encounter over the fact that she had filed an employment discrimination complaint with the EEOC. She became so stressed that she could not return to work, and she was fired after being off the job for nine months.

Recent Articles of Interest

From SSRN:

• Mark L. Movsesian, The Price of Ottoman Failure, (April 27, 2012).
• Cyra Akila Choudhury, Between Tradition and Progress: A Comparative Perspective on Polygamy in the United States and India, (University of Colorado Law Review, Vol. 83, No. 4, 2012).
• Kenneth L. Marcus, Three Conceptions of Religious Freedom, (May 4, 2012).

From SmartCILP:

• Dwight Bashir, Dean Fred F. Herzog Memorial Lecture. Religious Freedom under Assault in the Middle East: An Imperative for the U.S. and International Community to Hold Governments to Account, 45 John Marshall Law Review xxiii-xlii (2011).

Recent Prisoner Free Exercise Cases

In Eubanks v. Lempke, (2d Cir., May 1, 2012), the 2nd Circuit rejected an inmate's claim that his conviction was invalid because the verdict against him was read on a Friday when he was absent from the courtroom for religious reasons. As defendant, he had never requested an adjournment or accommodation.

In Williams v. King, 2012 U.S. Dist. LEXIS 60847 (SD NY, April 24, 2012), a New York federal district court refused to permit an inmate to add the former prison superintendent as a defendant in his complaint that his request to change the Shiite Muslim staff adviser was denied, but permitted him to proceed against other defendants on his claim of retaliation for filing a religious grievance.

In Watkins v. Haynes, 2012 U.S. Dist. LEXIS 61729 (SD GA, May 2, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61726) and dismissed official capacity claims, but permitted plaintiff to proceed with individual capacity claims against officials at his former prison that he was denied meals that were consistent with his Rastafarian beliefs.

In Hargrove v. Johnson, 2012 U.S. Dist. LEXIS 61279 (MD GA, May 2, 2012), a Georgia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61281, March 30, 2012) and permitted an inmate to proceed against certain defendants on his complaint that Muslims were not allowed to congregate religiously in the dorms.

In Hall v. Martin, 2012 U.S. Dist. LEXIS 60405 (WD MI, May 1, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 61697, March 15, 2012), and rejected an inmate's complaint that no separate religious services were provided for Messianic Jews.

In Dominguez v. Department of Mental Health, 2012 U.S. Dist. LEXIS 62305 (ED CA, May 3, 2012), a California federal magistrate judge recommended dismissing the Department of Mental Health as a defendant in a suit by a Native American inmate that his right to practice his religion had been violated.

Tennessee Governor To Veto Bill Aimed At Vanderbilt's All-Comers Rule

The Tennessean reported last week that Tennessee Gov. Bill Haslam will exercise his first veto of legislation by vetoing HB3576/SB3597, a bill that targets Vanderbilt University's "all comers" policy.  That anti-discrimination policy precludes recognized student religious organizations from requiring that members or leaders share the group's religious beliefs. The original version of the bill barred state universities from adopting a similar rule.  However a later amendment provided that Vanderbilt, a private institution, could continue its all-comers policy only if it also required fraternities and sororities to accept all students who apply as members. Governor Haslam, in a statement quoted by The Tennessean said: "Although I disagree with Vanderbilt’s policy, as someone who strongly believes in limited government, I think it is inappropriate for government to mandate the policies of a private institution." [Thanks to Blog from the Capital for the lead.]

Group Says E-mail of Department Head's Prayer To Employees Violated Establishment Clause

The Freedom From Religion Foundation has written Florida governor Rick Scott complaining about an e-mail sent by Department of Children and Families Secretary David Wilkins to all department employees. (Full text of letter.) The Miami Herald reported yesterday that Wilkins sent employees a copy of a long prayer that he delivered at the National Day of Prayer observance at the Florida Capitol. (The Herald article contains the full text of the prayer.) The FFRF letter argues that the e-mail "gives the appearance of government endorsement of Christianity."  A Department of Children and Families spokesman, however, said that the e-mail is merely "a continuation of the ongoing dialogue the Secretary has with employees to share details about public appearances and agency activities."

New Zambian Draft Constitution Has Lengthy Religious Freedom Provisions

In Zambia, on April 30, Justice Annel Silungwe, chairman of the Technical Committee on Drafting the Zambian Constitution released for public comment the first draft (full text) of a new Zambian Constitution. The draft Constitution includes unusually long provisions on freedom of religion. The 320 article document begins with the following:

WE, THE PEOPLE OF ZAMBIA, IN EXERCISE OF OUR CONSTITUENT POWER:

ACKNOWLEDGE the supremacy of God Almighty;

DECLARE the Republic a Christian Nation, but uphold the right of every person to enjoy that person’s freedom of conscience or religion;

UPHOLD the human rights and fundamental freedoms of every person and recognise the equal worth of different communities in our Nation;

Article 35 of the draft then provides:

35. (1) A  person has the right to freedom of  conscience, religion, thought, belief and opinion.

(2) A person has the right, either individually or in community with others, in public or in private, to manifest any religion or belief through worship, observance, practice or teaching.

(3) Clause (2) does not extend to- (a) anti-Christian teaching and practice; (b) propaganda to incite religious wars; and (c) any conduct that infringes  the enjoyment of  religious freedoms by others.

(4) A religious community shall be entitled, at its own expense, to establish, maintain and manage educational institutions, facilities and programmes for, and to provide religious instruction to, members of that community.

(5) Religious  observance and instruction may be conducted at State or State-aided institutions as long as -
(a) the facilities  for that religious observance and instruction at  that institution are made available on an equitable basis, having regard to the beliefs of the population served by that institution; and
(b) attendance, observance or instruction is  voluntary.

(6) A person shall not be deprived of access to any institution, employment or facility, or the enjoyment of any right or freedom because of that individual’s religious beliefs.

(7) A person shall not be compelled –
(a) to take an oath that is contrary to that individual’s religion or belief or that involves expressing a belief that the individual does not hold;
(b) to take an oath in a manner that is contrary to that individual’s religion or belief;
(c) to receive instruction in a religion that is not that individual’s religion or to attend a ceremony or observance of that religion;
(d) by a public body or public officer to disclose that individual’s religious conviction or belief; or
(e) to do any other act that is contrary to that individual’s religion or belief.

Voice of America reports on other aspects of the new draft.

Texas Church Wins In Settlement of RLUIPA Case

Becket Fund announced this week that a settlement has been reached in the RLUIPA lawsuit brought by Elijah Group (a church) against the city of Leon Valley, Texas.  Last year the 5th Circuit held that the city's zoning law that prohibits churches from operating in areas zoned for business violates the equal terms clause of the Religious Land Use and Institutionalized Persons Act (See prior posting.) Under the settlement, the city will allow the church to continue to meet on the property it leases, and the city will also pay $250,000 for the church's legal fees.

Free Exercise Clause Does Not Bar Court From Deciding Whether Trade Secret Was Misappropriated

Art of Living Foundation v. Does, 2012 U.S. Dist. LEXIS 61582 (ND CA, May 1, 2012) is a copyright infringement and trade secret misappropriation case brought by foundation that teaches the wellness and spiritual lessons of Ravi Shankar, including courses on breathing, meditation, and yoga. One of the defendants posted copies of the Foundation's teaching materials on his blog. The court held that it could decide the trade secret claims without being required to interpret Hindu beliefs or other religious teachings.

Defendants argue that the alleged trade secrets are merely conventional Hindu mystical claims, and that insofar as the Foundation claims it has added novel elements to traditional Hindu concepts, determining this "would ensnare the judicial system in questions of religious doctrine" in contravention of the 1st Amendment's free exercise clause. The court, however, disagreed concluding that it can determine the trade secret status of the materials just as it would any secular work by comparing the material to what is generally known to the public, considering whether plaintiff derived economic value from the nondisclosure, and evaluating whether plaintiff took reasonable measures to maintain the secrecy of the information. Quoting from an earlier case, the court said:

"While the trade secret laws did not necessarily develop to allow a religion to protect a monopoly in its religious practices, the laws have nonetheless expanded such that [a religious entity's] techniques, [if] 'used in the operation of the enterprise,' are deserving of protection if secret and valuable."

The court then added:

A defendant cannot deprive a plaintiff's materials of trade secret protection simply by invoking the Free Exercise Clause through allegations that the materials overlap with religious doctrinal principles.

Positions of Egyptian Presidential Candidates On Religion and State Published

Aswat Masriya yesterday published a compilation of the positions of each of Egypt's 12 Presidential candidates  on whether they prefer a religious or civil state. Amre Moussa, seen as the leading candidate by a recent poll, said:

Article 2 in the constitution which states that Sharia is the main source of legislation offers a brilliant and logical basis for Egypt to follow, anything else will not be appropriate. The Egyptian people will not tolerate "the Propagation of Virtue and the Elimination of Sin" approach.

Abdel Moneim Aboul Fotouh, also one of the leading candidates and a former member of the Muslim Brotherhood said:

A modern civil state inspired by Sahria - in agreement with moral principles of monotheistic faiths - that allows for the reactivation of Egypt's regional role in the Middle East, Africa and Islamic region.

Austria's New Religion Law Threatens Liberal Jewish Congregation's Independence

A small liberal Jewish congregation in Austria has applied for official status as a "Kultusgemeinde," or official Jewish community.  According to JTA yesterday, if the recognition is not granted to Or Chadash before Austria's new religion law (passed last month) takes effect, the liberal congregation will be subject to control by Orthodox Jewish authorities. The new law creates  religious boards consisting of representatives from state-recognized religious communities. The boards will then have control over all religious matters, including conversions, marriages and burials, as well as over funding for schools, teachers and buildings. Currently all 5 recognized Jewish communities in Austria are Orthodox.  Or Chadash was unsuccessful in its attempts to get Parliament to explicitly recognize Liberal Judaism in the new law.

Kuwait's Parliament Passes New Blasphemy Law With Potential Death Penalty

Bloomberg News reports that Kuwait's Parliament yesterday, by a vote of 40-6, passed a strict new blasphemy law.  Under the law, any any Muslim who, through any form of expression, insults God, his prophets, messengers, Prophet Mohammad’s wives or the Qur'an will be subject to the death penalty unless the defendant repents. If he does, then the judge is to instead impose a sentence of at least 5 years in prison and a fine equivalent to $36,000 (US).  Non-Muslims who commit blasphemy are subject to a 10 year prison sentence. The law must still be signed by the emir and published in the Official Gazette within a month for it to take effect.