Obama Speaks At White House Reception For Jewish American Heritage Month

President Obama spoke on Wednesday at a reception in the East Room of the White House marking Jewish American Heritage Month. (Full text of remarks.) In his remarks, he reminded his audience of a sometimes forgotten episode in American history:

This year, we celebrate ... Jewish American Heritage Month, and we're also commemorating an important anniversary. One hundred-fifty years ago, General Ulysses Grant issued an order –- known as General Orders Number 11 –- that would have expelled Jews, “as a class,” from what was then known as the military department of the Tennessee.  It was wrong.  Even if it was 1862, even if official acts of anti-Semitism were all too common around the world, it was wrong and indicative of an ugly strain of thought.

But what happened next could have only taken place in America. Groups of American Jews protested General Grant’s decision.  A Jewish merchant from Kentucky traveled here, to the White House, and met with President Lincoln in person.  After their meeting, President Lincoln revoked the order -- one more reason why we like President Lincoln.  (Laughter and applause.)

And to General Grant’s credit, he recognized that he had made a serious mistake.  So later in his life, he apologized for this order, and as President, he went out of his way to appoint Jews to public office and to condemn the persecution of Jews in Eastern Europe.

1st Circuit Invalidates Defense of Marriage Act

Today in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (1st Cir., May 31, 2012), the U.S. First Circuit Court of Appeals held unconstitutional Section 3 of the Defense of Marriage Act that denies federal benefits to same-sex couples (and surviving same-sex spouses) lawfully married in Massachusetts. The 3-judge panel (composed of 2 judges nominated by Republican presidents and 1 nominated by a Democratic president) was unanimous in its decision. The court said:

This case is difficult because it couples issues of equal protection and federalism with the need to assess the rationale for a congressional statute passed with minimal hearings and lacking in formal findings.  In addition, Supreme Court precedent offers some help to each side, but the rationale in several cases is open to interpretation.  We have done our best to discern the direction of these precedents, but only the Supreme Court can finally decide this unique case.

Although our decision discusses equal protection and federalism concerns separately, it concludes that governing precedents under both heads combine--not to create some new category of "heightened scrutiny" for DOMA under a prescribed algorithm, but rather to require a closer than usual review based in part on discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

Describing recent Supreme Court equal protection decisions, the 1st Circuit said:

In a set of equal protection decisions, the Supreme Court has now several times struck down state or local enactments without invoking any suspect classification.  In each, the protesting group was historically disadvantaged or unpopular, and the statutory justification seemed thin, unsupported or impermissible.

Concluding that "Congress' denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest," the court explained:

In reaching our judgment, we do not rely upon the charge that DOMA's hidden but dominant purpose was hostility to homosexuality.  The many legislators who supported DOMA acted from a variety of motives, one  central and expressed aim being to preserve the heritage of marriage as traditionally defined over centuries of Western civilization.  ...

For 150 years, this desire to maintain tradition would alone have been justification enough for almost any statute....  But Supreme Court decisions in the last fifty years call for closer scrutiny of government action touching upon minority group interests and of federal action in areas of traditional state concern.

To conclude, many Americans believe that marriage is the union of a man and a woman, and most Americans live in states where that is the law today.  One virtue of federalism is that it permits this diversity of governance based on local choice, but this applies as well to the states that have chosen to legalize same-sex marriage.

CNN reports on the decision.

Malaysian Federal Court Upholds Licensing of Muslim Teachers

A 5-judge panel of Malaysia's Federal Court has upheld the constitutionality of Sec. 53(1) of the state of Negeri Sembilan's Syariah Criminal Enactment 1992 which outlaws Muslims teaching Islam without accreditation by the state's Islamic Religious Council.  Malaysian Insider reported yesterday that a challenge to the law was brought by a Muslim counselor with the Patient Counseling Division of the National Heart Institute who (along with another defendant) faces a fine and up to two years in jail for delivering a religious talk at a celebration of the Prophet Muhammad's birthday in 2010. Plaintiffs claimed that the law exceeds the powers of the state's legislature. In upholding the state law, the Federal Court said:

We are of the view that it is necessary in this day and age for the authority to regulate the teachings or preachings of the religion in order to control, if not eliminate deviant teachings. The integrity of the religion needs to be safeguarded at all costs. That is what Section 53 of the enactment purports to do.

Pakistan Indicts Former Officials On Hajj Corruption Charges

In Rawalpindi, Pakistan on Wednesday, a trial court indicted former minister for Religious Affairs Syed Hamid Saeed Kazmi, former Hajj director general Rao Shakeel and former Hajj joint secretary Aftab-ul-Islam Raja in a case charging corruption in connection with administering hajj arrangements.  According to The News and Central Asia Online, the three are charged with arranging housing for Pakistan's Hajj pilgrims in Saudi Arabia at exorbitant rates, taking kickbacks for doing so, and making advance payments in violation of Pakistani policy. It is variously reported that the indictments relate to arrangements in 2009 or in 2010. (See prior related posting.)

Secular Coalition Seeking To Create State Offices

National Journal reported yesterday that the Secular Coalition for America has launched a drive to create state chapters of the organization in all 50 states. Up to now, SCA has focused on lobbying at the federal level.  The state chapters will be run by volunteers and will not have office space. They will focus on state and local legislation that threatens separation of church and state.

Lawsuits Seek Same-Sex Marriage Rights In Illinois

Two lawsuits were filed yesterday in federal district court in Illinois seeking to strike down provisions of Illinois law that bar the issuance of marriage licenses to same-sex couples and prevent legal recognition of same-sex marriages.  The suits allege that denial of same-sex couples the right to marry violates various provisions of the Illinois constitution.  As announced in an ACLU press release, one suit was filed by the ACLU on behalf of nine couples, and the other by Lambda Legal on behalf of 16 couples.  The suits are Lazaro v. Orr, (IL Cir. Ct., filed 5/30/ 2012) (full text of complaint) and Darby v. Orr,, (IL Cir. Ct., filed 5/30/2012) (full text of complaint). Illinois law provides for same-sex civil unions, but not same-sex marriages. (See prior posting.)

New York Transit Authority Settles Religious Accommodation Suit With Justice Department

The U.S. Department of Justice announced yesterday that it has reached a settlement agreement with the New York City Transit Authority in a Title VII religious discrimination case that the Department of Justice filed in 2004.  The suit alleges that after 9-11, NYCTA began enforcing its previously unenforced head wear policy in a discriminatory manner against Muslims and Sikhs.  The Transit Authority refused to accommodate religious beliefs that preclude attaching an NYCTA logo to a khimar or turban, moving non-complying employees out of public contact positions. Under yesterday's agreement, which still requires federal court approval, the Transit Authority must adopt new uniform head wear policies that allow employees in public contact positions to wear khimars, yarmulkes, turbans, kufis, skullcaps, tams and headscarves without attaching anything to them. It must also implement a new religious accommodation policy and train personnel in implementing it.  In addition, it must divide $184,500 in damages among current and former employees whose religious beliefs were not accommodated.

Judge Stops Murfreesboro Mosque Construction, Holding Inadequate Notice Given For Planning Commission Meeting

A Tennessee Chancery Court judge yesterday issued an opinion that stops, at least temporarily, the ongoing construction of a controversial mosque in Murfreesboro, Tennessee.  In 2011, the court dismissed all the challenges to the Rutherford County Regional Planning Commission's approval of building plans for the mosque, but allowed plaintiffs to move ahead with their claim that the county violated the Open Meetings Act when it publicized the Planning Commission meeting only in the Murfreesboro Post. (See prior posting.) Now in Fisher v. Rutherford County Regional Planning Commission, (TN Chancery, May 29, 2012), the court held that given the importance of the issue to be discussed at the the Planning Commission meeting, the county had given inadequate public notice of it. Reporting on the decision, The Tennessean says that the Commission can still reconsider the issue after proper notice, and again approve the mosque plans. After the state court decision, the Council on American-Islamic Relations called for the U.S. Justice Department to step in. In a press release, CAIR said: "the judge used phrases and reasoning which could be viewed as indicating that a higher degree of public notice is required for issues related to Tennessee Muslims.

UPDATE: CNN Wire reports that the leader of the Murfreesboro Islamic Center says that construction will continue until it receives a formal order to stop.  The judge in his May 29 opinion called for plaintiffs' counsel to prepare an order that the court will then issue.  A draft order was filed on May 30. Defendants will have 5 days to review it, after which the court may sign it.

Israeli Government To Begin Paying Salaries of Non-Orthodox Rabbis

In Israel, the Attorney General's office announced yesterday in an historic move that the government will begin to pay the salaries of some non-Orthodox rabbis, as it now does for Orthodox rabbis. Jerusalem Post reports the move comes in response to a recommendation earlier this month from the country's High Court of Justice. Regional Councils will now be able to pay Masorti and Reform rabbis for any communities who request them. Wages equal to that paid to Orthodox rabbis will be funneled through the Ministry of Sport and Culture, instead of through the Ministry of Religious Services that funds Orthodox rabbis. However, according to Haaretz, the arrangement applies only to regional councils and farming communities, and does not extend to large cities. Also "rabbis of non-Orthodox communities" will not have authority over issues of Jewish law.

First Suit Filed Under Hawaii's 2-Year Window For Child Sex Abuse Claims

In Honolulu last Thursday, the first lawsuit was filed under a Hawaii law that became effective in April (full text) giving a one-time 2-year window for filing of claims of sexual abuse against minors, even though the statute of limitations has otherwise run.  According to AP, the lawsuit was brought on behalf a man claiming sexual abuse by a priest at an all-boys Catholic school's overnight retreat in the 1980s when plaintiff was 13-years old. The suit claims that accused priest Gerald Funcheon was allowed unsupervised access to children at Damien Memorial School even though reports had been made to his order about inappropriate sexual conduct toward minors.

Indian Court Strikes Down Religious Groups' Backward Class Subquota

Last December, the government of India announced the creation of a 4.5% sub-quota for economically and socially disadvantaged non-Hindu minorities-- Muslims, Christians, Sikhs, Buddhists and Zoroastrians-- within the existing 27% Other Backward Classes (OBC) set-asides for government jobs and education. (See prior posting.) Now, according to a report yesterday by the Economic Times, the Andhra Pradesh high court has struck down the sub-quota. It held that a sub-quota cannot be based on purely religious grounds. It said that "Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) do not form a homogeneous group." The sub-quota was widely seen as a political ploy to attract Muslim votes in legislative assembly elections that were upcoming at the time the sub-quota was announced. Indian Express reports that Minority Affairs and Law Minister Salman Khurshid says the court's decision will be appealed.

Recent Prisoner Free Exercise Cases

In Florer v. Bales-Johnson, (9th Cir., May 15, 2012), the U.S. 9th Circuit Court of Appeals dismissed an inmate's free exercise and RLUIPA complaints about his kosher diet, finding that he failed to raise a genuine dispute of material fact that the meals he received substantially burdened his ability to exercise his religion. (See prior related posting.)

In Nzaddi v. Department of Corrections, 2012 U.S. Dist. LEXIS 69510 (D MA, May 18, 2012), a Massachusetts federal district court permitted a Baha'i inmate to proceed against two named defendants on her claim that she was denied kosher meals that were required according to her religious beliefs.

In Bargo v. Kelley, 2012 U.S. Dist. LEXIS 69649 (ED AR, May 18, 2012), an Arkansas federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 69653, May 1, 2012) and denied a preliminary injunction in a case in which an inmate alleged that his free exercise, due process, and equal protection rights were violated when authorities refused to allow him to be interviewed by Indigo Films for a documentary.

In Benning v. Georgia, 2012 U.S. Dist. LEXIS 71813 (MD GA, May 23, 2012), a Georgia federal district court enjoined prison officials from enforcing their grooming policy in a way that completely banned an inmate who professed Orthodox Judaism from growing earlocks. The court held that it is sufficient that the inmate's religious beliefs are sincere. It is irrelevant that he is not Jewish under the criteria set out by Jewish religious law.

Missouri Religion Amendment Moved To August Ballot

The St.Louis Post Dispatch reported last week that Missouri Governor Jay Nixon, a Democrat, has decided that a proposed state constitutional amendment (full text) that guarantees the right to pray and express religious views on public property and in schools will be voted on in the August 7 primary election rather than the November general elections.  The legislative resolution proposing the amendment provided that it should appear on the ballot either in November or in a special election called by the governor.  Apparently the governor's timing was motivated by the likelihood that the amendment will attract social conservatives (mostly Republicans) to the polls, and would thus benefit the Republicans in the general election of it were on the November ballot. Wall of Separation also reports on the governor's move. (See prior related posting.)

Islamists Blame Copts For First Round Election Results In Egypt

AINA reported yesterday that many Egyptians, deeply dissatisfied with the choice for President they have in the upcoming run-off election, are blaming the Christian Copts.  Islamists are blaming the Copts for the fact that Ahmad Shafik, Hosni Mubarak's last Prime Minister, came in high enough to be in the run-off with Muslim Brotherhood candidate Mohamed Morsy. These critics have accused the Copts of being "traitors" and "anti-revolutionary." However, according to AINA, this assessment has been challenged:

Dr Emad Gad, MP and deputy director of Al-Ahram Centre for Strategic Studies, said this campaign against the Copts is a prepared strategy by the Muslim Brotherhood to increase the chances of their candidate in the run-off election, by promoting a lie that votes of the Copts helped Shafik to advance. "This is not true at all. The largest block of votes for Shafik was in the four provinces of the Delta, namely Sharkia, Gharbia, Menoufiah and Dakahila, where the Copts make up only 5% of the total population."

Meanwhile, CNN reports that yesterday several thousand protesters in Tahrir Square urged Egyptian courts to disqualify Shafik. Other protesters broke into Shafik's campaign headquarters and set it on fire. Three of the losing candidates in the first round have filed appeals with the election commission charging fraud. (AP) According to Bloomberg News, many youth groups and secularists who led last year's revolution favor Hamdeen Sabahi, a socialist candidate who came in third in the first round of the election. These activists want Shafik disqualified under a law that took away the political rights of some Mubarak era officials. Others want Morsi to step aside to allow Sabahi to run against Shafik.

Cert. Filed In Suit Over Prisoner's Right To Received NOI Newspaper

The Baton Rouge (LA) Advocate reports that a petition for certiorari has been filed with the U.S. Supreme Court in Leonard v. Louisiana. In the case, the 5th Circuit in a brief per curiam opinion (full text) held that prison officials were not justified in banning a prisoner from receiving Nation of Islam's newspaper The Final Call. Prison officials had imposed the ban because the paper contained "The Muslim Program" written by Elijah Muhammad. The 5th Circuit held: "While we do not agree that "The Muslim Program" is free of racially inflammatory language, the record here does not justify this order under circumstances where an objectionable page could be deleted and where this page has been included in all prior issues of the newspaper and is and always has been available to appellee." (See prior related posting.)

Guidelines on Bullying and Free Expression Released, Create Controversy

As reported by Education Week, last week a coalition of 17 religious, educational and civil rights groups, led by the American Jewish Committee and the First Amendment Center, released new guidelines on bullying in schools. An 11-page pamphlet titled Harassment, Bullying and Free Expression-- Guidelines for Free and Safe Public Schools is "intended to help public schools balance the need for school safety with the need for free expression." The next day, the Anti-Defamation League sent a letter to the Secretary of Education strongly criticizing the new guidelines.  The letter (full text) says in part:

the Guidelines issued this week emphasize students’ First Amendment rights over the responsibility to create a safe learning environment for all students – especially vulnerable minority, disabled, and LGBT students.  While we agree that students’ free speech and religious expression rights are important, we strongly disagree with the Guidelines’ direct implication that such rights have been given short shrift in current federal and state law and policy and need greater protection. 

The American Muslim has extensive background on the Guidelines and the controversy they have generated. [Thanks to Michael Lieberman for the lead.]

Kansas Governor Signs Bill Promoted As Anti-Sharia Measure

AP reports that Kansas governor Sam Brownback on May 21 signed into law H Sub SB 79. The legislation prohibits Kansas courts or tribunals from applying foreign law if that law would not grant the parties affected the same fundamental rights as they would have under the U.S. and Kansas constitutions, including equal protection, due process, free exercise of religion, freedom of speech or press, and any right of privacy or marriage. Supporters of the bill have pressed it as a measure designed to prevent Sharia law from being used by Kansas courts, leading the Council on American Islamic Relations to suggest that the statute may be challenged. (See prior related posting.) The new legislation defines foreign law as:

any law, legal code or system of a jurisdiction outside of any state or territory of the United States, including, but not limited to, international organizations and tribunals and applied by that jurisdiction’s courts, administrative bodies or other formal or informal tribunals.

The legislation is based on a model act promoted by the American Public Policy Alliance.

Suit Challenges New Ten Commandments Monument

On Friday, a lawsuit was filed challenging a 5 foot tall stone Ten Commandments monument that was put up earlier this month by the county commission in the courtyard of the Bradford County, Florida Courthouse. The complaint (full text) in American Atheists, Inc. v. Bradford County, Florida, (MD FL, filed 5/25/2012), alleges that the monument, which was unveiled in conjunction with a religious prayer ceremony, violates the Establishment Clause. A press release from American Atheists announced the filing of the lawsuit. [Thanks to Scott Mange for the lead.]

District Court Invalidates DOMA and Related Care Insurance Restrictions

In Dragovich v. U.S. Department of the Treasury, (ND CA, May 24, 2012), a California federal district court held unconstitutional Sec. 3 of the federal Defense of Marriage Act and federal provisions (26 USC Sec. 7702B(f)) that effectively bar states from permitting same-sex domestic partners or same-sex spouses from participating in state-maintained long-term care insurance policies. DOMA was defended by the Bipartisan Legal Advisory Group of the United States House of Representatives (BLAG) since the administration refused to defend its constitutionality.  In striking down the provisions, the court said in part:

the legislative record contains evidence of anti-gay animus and the BLAG has failed to establish that § 3 of the DOMA is rationally related to a legitimate government interest.  Accordingly, Plaintiff same-sex spouses are entitled to summary judgment that § 3 of the DOMA is invalid under the Constitution’s equal protection principles to the extent that the law blocks their access to the CalPERS long-term care plan....

Because Congress’s restriction on state-maintained long-term care plans lacks any rational relationship to a legitimate government interest, but rather appears to be motivated by antigay animus, the exclusion of registered domestic partners of public employees from § 7702B(f)’s list of individuals eligible to enroll in state-maintained long-term care plans violates the Constitution’s equal protection guarantee.

Metro Weekly reports on the decision.

Document Leaks, Bank President's Ouster Create Crisis Atmosphere At Vatican

Two parallel developments in the Vatican were described yesterday by Reuters as a "widening scandal." Last Thursday the Supervisory Board of the Institute for the Works of Religion (the Vatican Bank) dismissed the president of the bank, Prof. Gotti Tedeschi. (Vatican press release.) Tedeschi says he was ousted because of his attempts to make the bank more transparent. The band has been attempting in recent years to meet international anti-money laundering standards. (See prior posting.) However Vatican officials say the ouster had nothing to do with that. Reuters says that instead it was the result of  "progressively erratic personal behavior" and his failure to defend the bank "in the face of inaccurate media reports".

Meanwhile, on Saturday the Pope's personal butler, Paolo Gabriele, was arrested (Vatican press release) in an ongoing investigation of theft of confidential papers that have been published. They allege cronyism and corruption among the Cardinals. (See prior posting.) AP reports that Gabriele has agreed to cooperate with investigators.