Court Says Opening Council Meetings With Lord's Prayer Is Unconstitutional; Urges Compromise

In Mullin v. Sussex County, Delaware, (D DE, May 15, 2012), a Delaware federal district court granted a preliminary injunction barring Sussex County Council from opening its meetings with the recitation of the Lord's Prayer. The court found it likely that

Council's practice of opening each meeting with a recitation of this distinctly Christian Lord's Prayer violates the Establishment Clause because it constitutes government endorsement of the Christian faith. The fact that The Lord's Prayer has been the only prayer recited at the beginning of Council meetings for over six years is likely to be found to demonstrate that the Council gives Christianity an unconstitutionally preferred status, sending a message to meeting attendees that the Council is promoting the beliefs of Christianity.

However, on its own initiative, the court stayed the effectiveness of the preliminary injunction for one month, expressing the hope that " during this period the parties may confer- perhaps with the assistance of one of this Court's judicial officers as mediator- and attempt to agree upon how to preserve the Council's practice of opening its meetings with a prayer but to do so in a manner that is consistent with the United States and Delaware Constitutions." Americans United issued a press release announcing the decision. [Thanks to Alliance Alert for the lead.]

Israeli Court Holds Jewish Resident Cannot Obtain Citizenship Outside Law of Return

According to Haaretz, in Israel on Tuesday a district court in Haifa rejected an appeal by 89-year old  Professor Uzzi Ornan, founder of the League against Religious Coercion in Israel, seeking to force the Interior Ministry to recognize his Israeli citizenship on the ground he was born in Israel, not because he is Jewish. Ornan was born in Jerusalem, but was exiled by the British in 1944 to Eritrea. When he returned to Israel in 1948, he insisted that in the first census he be listed as having no religion (even though he was born to a Jewish mother), and that his nationality be listed as Hebrew. The Law of Return (full text) provides that its citizenship provisions also extend to every Jew who immigrated to Israel before the passage of the Law of Return in 1950.  It defines as a Jew, anyone "who was born of a Jewish mother or has become converted to Judaism and who is not a member of another religion." In this week's case, Ornan insisted that he was "of another religion."  The State Prosecutors Office argued, however, that the fact Ornan is listed in the population registry as having no religion does not affect his being Jewish under the halachic test set out in the Law of Return. The court agreed.

Belarus Denies Death Row Inmates Time For Last Rites and Religious Funerals

Forum 18 reported yesterday on the continuing religious freedom problems relating to death row prisoners in Belarus. Condemned prisoners are told the date and time for their execution only at the last minute. They do not have time to receive a visit from a priest, make confession or take communion. Also bodies of executed prisoners are not handed over to families for burial, and the families are not informed of the place of burial.  This makes it very difficult for families to arrange for a religious funeral for the executed prisoner.

Chicago Archdiocese Is Sued Over Abuse From 30 Years Ago

CBS Chicago reported yesterday that a new lawsuit has been filed against the Catholic Archdiocese of Chicago.  In it, plaintiff Martin Yanick claims that nearly 30 years ago as an 11-year old altar boy he was abused by the now-deceased Rev. John Jordan at Chicago's St. Adrian Parish. According to Yanick, the priest told him that the molestation would cleanse him of his sins and mistakes as an altar boy. The suit which asks for at least $350,000 in damages alleges negligence, fraudulent misrepresentation, failure to protect children from predatory priests and failure to uphold the church’s special relationship with congregants.  It claims that as the Archdiocese failed to respond to sex abuse allegations made as early as 1976, and that it retained pedophile priests without warning parishioners.

Canadian Catholic Bishops Issue Letter On Religious Freedom

Yesterday the Canadian Conference of Catholic Bishops released a Pastoral Letter on Freedom of Conscience and Religion (full text). The 12-page letter, written by the CCCB's Permanent Council was summarized in part by the CCCB as follows:

The letter is largely occasioned by the spread in our own country of an aggressive relativism that actively seeks to force its own view of truth on others. It attempts to relegate religious belief to the private sphere, and considers religion to be insignificant, alien or even destabilizing. Legitimate secularity is open to the engagement of religious beliefs and faith communities in public debate and civic life. Radical secularism, however, excludes religion from the public square. This disfigured view of the secular is becoming more militant in attempting to silence religious believers when their views contradict its own, particularly on issues of education, human life and the family. It is highly hostile to a truly democratic and pluralist society, in that it tolerates only its own voice and tries to silence all others.

The pastoral letter, addressed to everyone of good will, calls on Catholics, all believers, and even those of no faith, 1) to affirm the right of religion to be active in the public square, 2) to maintain healthy Church-State relations, 3) to form consciences according to objective truth, and 4) to protect the right to conscientious objection The letter also encourages all faith communities to contribute to the formulation of public policy and the common good, and concludes by exhorting believers not to compromise their convictions but to stand up for their faith, even if they must suffer for it.

Fine On Attorney For Anti-Catholic Statements In Court Filing Upheld

According to yesterday's St. Paul Pioneer Press, a Minnesota federal district court has upheld the action of a bankruptcy judge who imposed a fine of $5000 on attorney Rebekah Nett for filing a legal memorandum with the bankruptcy court containing bigoted anti-Catholic statements. (See prior posting.) Nett said that the offending memorandum was written by her client, but the district court held that Nett "stuck her head in the sand" when she signed off on the memo.

Obama Campaign Hires Religious Outreach Director

CNN reported yesterday that the Obama re-election campaign is hiring a staffer from the White House Office of Faith Based and Neighborhood Partnerships to be the campaign's religious outreach director. Michael Wear has resigned his position as executive assistant to the executive director of the White House faith-based office, and will join the Obama campaign in Chicago as its Faith Vote Director. This report follows one in the New York Times yesterday that just two hours after announcing his support for same-sex marriage last week, the President had a conference call with eight African-American pastors to explain how he had reached his decision.

Suit Challenges Limits On Evangelist's Gospel Tract Distribution At Street Festival

According to a press release from Alliance Defense Fund, a suit was filed in a New York federal district court last week on behalf of a Christian evangelist who wants to distribute Gospel tracts during the Buffalo (NY) annual Sorrento Cheese Italian Heritage Festival.  According to the complaint (full text) in Owen v. City of Buffalo, (WD NY, filed 5/10/2012), last year police stopped plaintiff from handing out literature at the street festival, even though the Army and local schools were permitted to hand out materials. The suit alleges violations of due process and free speech protections, and asks for a declaratory judgment, an injunction and nominal damages plus costs and expenses.

USCIRF Criticizes Passage of Kuwait's New Blasphemy Bill

The U.S. Commission on International Religious Freedom last week issued a statement (full text) strongly criticizing the Kuwaiti Parliament's recent passage of a bill imposing strong penalties-- including the death penalty in some cases-- for blasphemy. (See prior posting.) USCIRF Chairman Leonard Leo said:

These penalties are alarming and contrary to international human rights standards.  It is particularly regrettable that a strong ally of the United States and a member of the UN Human Rights Council has taken these steps.  The Kuwaiti parliament’s approval is especially unfortunate in light of the new consensus resolutions at the Human Rights Council – adopted in both 2011 and 2012 -- that focus on fighting religious intolerance, discrimination, and violence without restricting speech.

The bill will become law only if approved by the Emir of Kuwait within 30 days of its passage.

Kansas Legislature Passes Anti-Sharia Law Bill

The Kansas state Senate on Friday, by a vote of 33-3 joined the House which by a vote of 120-0 earlier in the week approved the Conference Committee version H Sub SB 79, popularly known as the Sharia law bill. The bill, as amended by the Conference Committee report, provides in part:

Any court, arbitration, tribunal or administrative agency ruling or decision shall violate the public policy of this state and be void and unenforceable if the court, arbitration, tribunal or administrative agency bases its rulings or decisions in the matter at issue in whole or in part on any foreign law, legal code or system that would not grant the parties affected by the ruling or decision the same fundamental liberties, rights and privileges granted under the United States and Kansas constitutions, including, but not limited to, equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage.

According to a report of Friday from the Wichita Eagle, the chairman of the Senate Judiciary Committee, apologized for signing the Conference Report and thus placing the Senate in the position of having to vote on the bill. Reuters reports that Gov. Sam Brownback has not indicated whether he will sign the bill.

Recent Articles of Interest

From SSRN:

• Gary J. Simson, Religion by Any Other Name? Prohibitions on Same-Sex Marriage and the Limits of the Establishment Clause, (Columbia Journal of Gender and Law, Vol. 23, p. 132, 2012).
• John M. Kang, Martin v. Malcolm: Democracy, Nonviolence, Manhood, (West Virginia Law Review, Vol. 114, No. 937, 2012).
• Brian D. Galle, Charities in Politics: A Reappraisal, (William & Mary Law Review, Forthcoming).
• Randall P. Bezanson, Sheila Anne Bentzen and C. Michael Judd, Mapping the Forms of Expressive Association, (Pepperdine Law Review, Forthcoming).
• Patrick S. Metze, Troy Davis, Lawrence Brewer, and Timothy Mcveigh Should Still Be Alive: Certainty, Innocence, and the High Cost of Death and Immorality, (6 Charleston L. Rev. 333, Winter 2012).
• Nan D. Hunter, Animus Thick and Thin: The Broader Impact of the Ninth Circuit Decision in Perry v. Brown, (Stanford Law Review Online, Vol. 64, pp. 111-116, 2012).
• Zubair Abbasi, God’s Law v. Corporations: A Critique of Islamic Law Matters Thesis, (May 6, 2012).

Former USCIRF Employee Sentenced For Embezzling Funds

The Washington Examiner reported yesterday that a D.C. federal district judge has sentenced Carmelita Hines, former office operations manager for the U.S. Commission on International Religious Freedom, to 20 months imprisonment for wire fraud.  In February, Hines plead guilty to the charges which stemmed from her embezzling over $217,000 from USCIRF. According to the Statement of Offense (full text), Hines used USCIRF credit cards for personal expenses and personal cash withdrawals for a period from 2007 to 2011.

Child Abuse Laws Do Not Violate Pastor's Free Exercise Rights

In Madison, Wisconsin last Thursday, a state trial court judge refused to overturn the conviction of a pastor who, in March, was found guilty on 8 counts of conspiring to commit child abuse. According to WTAQ News, pastor Philip Caminiti of the Aleitheia Bible Church in Black Earth (WI) was convicted for preaching to his parishioners that, consistent with Biblical teachings, they should discipline their children by hitting them on their bare buttocks with wooden dowels. Caminiti argued that his convictions violate his right to the free exercise of religion, but the judge ruled that Caminiti had failed to show that the state's child abuse laws put a burden on his sincere religious beliefs. (See prior related posting.)

Colombia's Constitutional Court Awards Pension Rights To Deceased Priest's Same-Sex Partner

According to a report on Friday by Pink News, Colombia's Constitutional Court has ordered the country's Institute of Social Security to award pension rights to the same-sex partner of a deceased Catholic priest. The two lived together for 28 years before the priest's death in 2009. The court ruled that same-sex couples constitute a family under Colombian law. Rejecting determination by lower courts that no pension was required because the priest had broken his vow of chastity, the Constitutional Court held that it must exercise the principle of religious neutrality in its decisions.

Arizona Governor Signs 2 Bills Aimed At Protecting Religious Liberty

Arizona Governor Jan Brewer's office announced  that on May 11 she signed HB 2625 which expands the definition of those religiously-affiliated employers that may exclude contraceptive coverage from their health insurance plans. New language expands the definition to include "an entity whose articles of incorporation clearly state that it is a religiously motivated organization and whose religious beliefs are central to the organization's operating principles."

AP also reports that Brewer last week signed SB 1365 which prohibits denial or revocation of any professional or business licence for conduct or statements motivated by a person's sincere religious beliefs.  Among the specific conduct protected (subject to certain exceptions) is refusal to provide any service that violates the person's sincere religious beliefs, and making employment or client selection decisions based on sincere religious beliefs.

Patheos has the reaction of the Executive Director of the Secular Coalition of Arizona to the two measures. [Thanks to Scott Mange for the lead.]

Recent Prisoner Free Exercise Cases

In Couch v. Jabe, (4th Cir., May 11, 2012), the U.S. 4th Circuit Court of Appeals, remanding for further proceedings, held that prison officials had not satisfied their burden under RLUIPA to show how allowing a Sunni Muslim inmate to grow a one-eighth inch beard would implicate health or security concerns.

In Hall v. Martin, 2012 U.S. Dist. LEXIS 62499 (WD MI, May 3, 2012), a Messianic Jewish inmate sued claiming that denial of a kosher vegan diet violated his rights under RLUIPA and the 1st Amendment. The Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 63300, March 29, 2012) and denied a preliminary injunction, saying it might be reconsidered if plaintiff is willing to accept the diet already offered to Buddhists and Seventh Day Adventists. The court also refused to dismiss plaintiff's damage claim for violation of the free exercise clause, concluding that it was improper for officials to deny plaintiff's request by considering what Jewish religious doctrine requires, instead of merely considering his sincere religious beliefs.

In Warner v. Cate, 2012 U.S. Dist. LEXIS 64643  (ND CA, May 8, 2012), a California federal district court  allowed an inmate seeking a kosher diet to move ahead with his free exercise and equal protection claims against several defendants.  Plaintiff's request had been denied by prison authorities because he was not born of a Jewish mother and was thus not considered to be Jewish under religious law. His complaint against the Secretary of the California Department of Corrections was dismissed with leave to amend to appropriately alleging supervisory liability.

In Birdwell v. Cates, 2012 U.S. Dist. LEXIS 65199 (ED CA, May 9, 2012), a California federal magistrate judge recommended dismissing claims by an inmate who practiced Asatru-Odinism and who claimed that certain limitations on items he could possess and requiring sharing of outdoor worship space violated his rights under the free exercise and equal protection clauses and under RLUIPA.

Christian College Professor May Proceed With Discrimination Claims

In Baiyasi v. Delta College, 2012 U.S. Dist. LEXIS 65715 (ED MI, May 10, 2012), a Michigan federal district court permitted former college science professor, Stephanie Baiyasi, to proceed with religious discrimination claims under Title VII of the 1964 Civil Rights Act and under Michigan's Elliott-Larsen Civil Rights Act. The suit claims that the chair of the college's science division made anti-Christian statements and rejected "creation science" beliefs. While rejecting a hostile work environment claim, the court permitted plaintiff to proceed with her contentions that she was denied tenure and then terminated because of her religious beliefs, and that the that she was denied tenure in retaliation for her complaints about religious discrimination to Human Resources and the President of the College.

Defendant's Confession To Pastor Is Privileged

In People of the State of Michigan v. Bragg, (MI App., May 8, 2012), a Michigan state appellate court held that a confession to a Baptist minister of defendant's sexual assault of a young girl is privileged under Michigan law. Pastor John Vaprezsan elicited the confession from defendant, the son of the church's secretary. MCL Sec. 767.5a provides that communications between members of the clergy and members of their respective churches that are privileged when necessary to enable the member of the clergy to serve as such. The court held that neither the fact that the pastor initiated the conversation in which the confession was elicited, nor the fact that defendant's mother was present during the conversation prevented the confession from being privileged.

Romney Speaks At Liberty University of Religious Freedom and American Values

Earlier today, presumptive Republican presidential nominee Mitt Romney delivered the commencement address at Liberty University, the conservative Christian university founded by evangelist Jerry Falwell.  Business Insider has both video excerpts and a transcript of the full text of the talk. Romney said in part:

Christianity is not the faith of the complacent, the comfortable or of the timid. It demands and creates heroic souls....  Central to America’s rise to global leadership is our Judeo-Christian tradition, with its vision of the goodness and possibilities of every life. 

The American culture promotes personal responsibility, the dignity of work, the value of education, the merit of service, devotion to a purpose greater than self, and, at the foundation, the pre-eminence of the family....  As fundamental as these principles are, they may become topics of democratic debate.  So it is today with the enduring institution of marriage.  Marriage is a relationship between one man and one woman.

The protection of religious freedom has also become a matter of debate.  It strikes me as odd that the free exercise of religious faith is sometimes treated as a problem, something America is stuck with instead of blessed with.  Perhaps religious conscience upsets the designs of those who feel that the highest wisdom and authority comes from government.

Chile Passes Anti-Discrimination Law That Had Been Pending For 7 Years

The Santiago Times and I Love Chile News both report on final passage by Chile's Senate on Wednesday of an anti-discrimination law that had been pending in Parliament for 7 years. The Senate's 25-3 vote in favor of the bill follows the killing in March of 24-year-old Daniel Zamudio in a neo-Nazi hate crime attack. The new law, which still needs to be approved by the Constitutional Tribunal as constitutional, punishes discrimination by fines of up to 1.8 million CLP ($3700 US). A fine of up to 733,000 CLP ($1500 US) will be imposed an a complainant if no discrimination is found. The new law defines discrimination as:

any distinction, exclusion or restriction, without reasonable justification, made by state officials or private individuals and causing deprivation, disruption or threat to the legitimate exercise of fundamental rights enshrined in the Constitution of the Republic or in international human rights treaties ratified by Chile.

It includes differential treatment based on a broad range of characteristics: race, ethnicity, nationality, socioeconomic status, ideology, political opinion, religious beliefs, participation in organizations or lack thereof, sex, gender, sexual orientation, appearance, health and disabilities. In the past, opponents of the law, including Protestant churches and the Catholic Church, had been concerned that it could be used to legalize same-sex marriage.  To deal with those concerns, the final version provides in Art. 18: "The precepts of this law cannot be interpreted as derogatory clauses or modifications of other legal norms."