Canada's Federal Court Rejects Questioning Refugee Applicants On Religious Knowledge

In Zhang v. Minister of Citizenship and Immigration, (Fed. Ct., May 4, 2012), Canada's Federal Court ruled that it was improper for Canada's Immigration and Refugee Board to decide that an applicant for refugee status was not a genuine Christian, based on questioning about the applicant's knowledge of Christianity.  At issue was a claim by Haixhin Zhang, who was in Canada on a visitor's visa, that he would be arrested if he returned to China because he regularly attended services of a house church in China. The Refugee Protection Division member who initially passed on the application found that Zhang had likely joined a Christian church in Canada to support a fraudulent refugee claim. The Federal Court said, however, that this conclusion is not defensible as a matter of either fact or law:

The transcript reads as a debate between scholars on the correct interpretation of Christian theology. Testing an applicant’s understanding of religious tenants is fraught with unaddressed extremely serious questions.....

If it is to be said that all Christians should know certain facts about the religion, there must be a verifiable way to establish this expectation. The expectation cannot be so established on a completely subjective basis by a decision-maker. Therefore, if a general expectation is established of persons who claim to be Christians, advance notice of the expectation must be given so the expectation is fair to all who apply....

[A] finding of implausibility that a certain person is not of a certain faith because he or she does not meet a certain subjective standard set by a decision-maker is indefensible as a matter of fact.... [K]nowledge of religious dogma, does not equate to holding religious faith. It’s not about the doctrines. The thing that is important is the ethic instilled by the religious teachings that a person takes and lives by. Attending church and quoting scriptures aren’t as important as how a person lives his or her life according to the morals and values learned....

The National Post, reporting on the decision, says that other cases in recent months have similarly found that the IRB has imposed unreasonably high standards of religious knowledge on applicants claiming religious persecution.

Investigative Article Explores Pressures In Hasidic Communities Not To Report Sexual Abuse

Today's New York Times carries a long front-page story on the pressures within New York's insular Hasidic Jewish communities against victims' families reporting child sexual abuse to civil authorities. The Times reports:

There have been glimmers of change as a small number of ultra-Orthodox Jews, taking on longstanding religious and cultural norms, have begun to report child sexual abuse accusations against members of their own communities. But those who come forward often encounter intense intimidation from their neighbors and from rabbinical authorities, aimed at pressuring them to drop their cases.

Abuse victims and their families have been expelled from religious schools and synagogues, shunned by fellow ultra-Orthodox Jews and targeted for harassment intended to destroy their businesses. Some victims’ families have been offered money, ostensibly to help pay for therapy for the victims, but also to stop pursuing charges, victims and victims’ advocates said.

The situation varies among different Hasidic communities. Last year a Chabad-Lubavitch religious court in Crown Heights ruled that where there is evidence of abuse, "one is forbidden to remain silent."  And recently in Williamsburg, Satmar Hasidic authorities posted Yiddish-language signs in synagogues warning adults and children to stay away from a specific named individual who was molesting young men.

Suit Challenges Indiana's Limit On Who May Solemnize Marriages

The Center for Inquiry is an organization devoted to fostering a secular society based on science, reason, freedom of inquiry and humanist values. Yesterday it filed a federal lawsuit seeking to require the state of Indiana to permit those who have completed the Center's Secular Celebrant Program to solemnize marriages in Indiana. The complaint (full text) in Center for Inquiry, Inc. v. Clerk, Marion Circuit Court, (SD IN, filed  5/9/2012), claims that IN Code Sec. 31-11-6-1 that limits solemnization of marriages to clergy, various religious groups, and public officials, violates the Establishment Clause and the 14th Amendment's equal protection clause. Center for Inquiry issued a press release yesterday announcing the filing of the lawsuit.

President Obama Says He Supports Same-Sex Marriage

ABC News reports that in an interview recorded today, President Barack Obama told ABC News' Robin Roberts that he now supports same-sex marriage. Obama said in part:

I have to tell you that over the course of several years as I have talked to friends and family and neighbors, when I think about members of my own staff who are in incredibly committed monogamous relationships, same-sex relationships, who are raising kids together; when I think about those soldiers or airmen or marines or sailors who are out there fighting on my behalf and yet feel constrained, even now that 'don't ask, don't tell' is gone, because they are not able to commit themselves in a marriage, at a certain point I've just concluded that for me personally it is important for me to go ahead and affirm that I think same sex couples should be able to get married.

The President added that this is his personal position, but that he still supports the right of individual states to decide whether or not they will recognize same-sex marriages.

UPDATE: The New York Times reports that presumptive Republican presidential nominee Mitt Romney today reiterated his position opposing same-sex marriage and at least some types of civil unions:

"My view is the same as it’s been from the beginning," Mr. Romney told a CBS affiliate in Denver. "I don’t favor civil unions if it’s identical to marriage, and I don’t favor marriage between people of the same gender." Asked why he opposed civil unions, in particular, he explained that in many cases they represent marriage by a different name for gay couples.

North Carolina Voters Approve Constitutional Amendment Preserving Traditional Definition of Marriage

CNN reports that yesterday North Carolina voters, by a 61%-39% majority, approved a state constitutional amendment barring same-sex marriage and civil unions. The vote was 1,303,952 for, and 831,788 against. The amendment (full text) provides:

Marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this State. This section does not prohibit a private party from entering into contracts with another private party; nor does this section prohibit courts from adjudicating the rights of private parties pursuant to such contracts.

With this vote, North Carolina becomes the 31st state to add a constitutional amendment preserving the traditional definition of marriage. Six states and the District of Columbia issue marriage licences to same-sex couples.

Australian Appeals Court Refuses Bench Trial For Muslim Who Feared Jury Prejudice

In R. v. Belghar, (NSW Ct. Crim. App., May 4, 2012), an appellant court in the Australian state of New South Wales reversed a trial court judge's decision that a Muslim defendant charged with assault, intimidation and attempted murder should be granted a non-jury trial. Defendant, who allegedly attacked his wife's sister, requested the bench trial because he believed the jury might be prejudiced against his religious beliefs. The Crown objected to the request. The attack apparently took place because defendant was angry that his sister-in-law took his wife to the beach where his wife displayed her body (as evidenced by her sunburned shoulders). According to the trial court judge:

this was abhorrent to the applicant by virtue of either his strict religious beliefs or by virtue of the fact that he believed he had absolute authority over the wife as opposed to the wife's family having some authority over her.... In this particular case there is direct reference to aspects of the Muslim faith which may cause a jury to take their mind off the central issue which is a single issue, that is, what was the intent of the applicant at the point in time that he came into contact with the victim at the Broadway shopping centre.

The Court of Criminal Appeals, however, reversed the decision, holding that:

the mere apprehension of prejudice in prospective jurors, not based on evidence or a matter of which the court may take judicial notice... is at odds with the assumption which the common law makes that jurors will understand and obey the instructions of trial judges to bring an impartial mind to bear on their verdict....

It may be accepted that from time to time adverse publicity is given to events which have occurred, generally outside Australia, where the strict application of a form of Muslim law or Islamic tradition has given rise to the treatment of a woman or women in a manner which is generally unacceptable to ordinary Australians. It may also be that some people in the Australian community harbour prejudice against persons who adhere to the Muslim faith, particularly against those holding "conservative" views about the place and role of women in marriage or in wider society. However, without evidence that such views are widespread in the Australian community and would be likely to influence jurors, it must be assumed that the protection afforded an accused person in the ordinary course of a trial will protect him or her from an unjust result.

9News reports on the decision.

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."