Mass Murder Defendant Excluded From Military Courtroom Because of Beard

Yesterday, according to AP, a military judge at Texas' Fort Hood implemented a warning given earlier this month to accused mass killer Maj. Nidal Hasan (see prior posting), and had him removed from a hearing in his own case to a nearby room where he can watch he proceedings on closed circuit television.  The judge, Colonel Gregory Gross, took the action after Hasan appeared with a beard that Hasan's attorney says the defendant has grown for religious reasons. The beard violates the Army's grooming regulations. Hasan is charged with opening fire after shouting "Allahu Akbar!" in a Fort Hood medical building where deploying and returning soldiers were receiving vaccines and other tests. 

Australia High Court: School Chaplaincy Program Does Not Violate Religious Freedom, But Exceeds Spending Authority

In Williams v. Commonwealth of Australia, (Australia High Ct., June 20, 2912), Australia's highest appeals court held that the country's National School Chaplaincy Program which provides grants for chaplaincy services in public and private schools (see prior posting) does not violate Section 116 of Australia's Constitution. Section 116 prohibits any religious test as a qualification for office.  However the Court invalidated the program on the ground that it exceeds the government's executive powers.  Here is the Sydney Morning Herald's summary of the decision:

[T]he High Court ruled that the case did not impact on the freedom of religion... The constitution says, ''no religious test shall be required as a qualification for any office or public trust under the Commonwealth'' and Mr Williams had argued that the definition of school chaplains included a ''religious test'' for office.

But the court found that school chaplains were not Commonwealth employees, but rather were engaged by an external organisation, Scripture Union Queensland.... 

But by majority the court held that the funding agreement between chaplaincy provider ... and the Commonwealth was invalid because it was beyond the executive power of the Commonwealth.

Because there is no legislation authorising the agreement, the Commonwealth argued the payments were supported by ... section 61 of the constitution, which provides that the executive power ''extends to the execution and maintenance of this constitution, and of the laws of the Commonwealth''. But the majority ... rejected this, finding that section 61 did not empower the Commonwealth to enter into the funding agreement or make the challenged payments.

Suit Challenges County Commission Prayers

A lawsuit was filed in federal district court in Tennessee last week seeking to stop the Hamilton County, Tennessee County Commission's practice of opening its meetings with a Christian prayer.  According to last Saturday's Chattanooga Times Free Press,the suit follows a letter sent in May (full text) from the Freedom From Religion Foundation pointing out that every prayer so far at meetings in 2012 has been offered "in Jesus name." The letter asks that prayers before government meetings be discontinued.

Catholic Health Care Group Opposes Proposed Contraception Mandate Compromise

Last Friday, the Catholic Health Association (CHA), which represents more than 2000 Catholic health care organizations and facilities, submitted a comment letter (full text) to the Department of Health and Human Services taking issue with the Obama administration's proposed compromise to deal with objections of religious organizations to the mandate that health insurance policies cover contraceptive services. CHA's letter has attracted a good deal of press attention (Washington Post; National Catholic Register) because CHA's support was important in the original 2009 passage of the Affordable Care Act (see prior posting) and because CHA president Sister Carol Keehan had initially expressed openness to the compromise on contraception coverage.  CHA now proposes a broad exemption from the contraception coverage mandate for all churches, and organizations associated with churches.  It suggests that if the government insists that employees of such organizations have contraception coverage, it should be paid for by the government and provided "without any direct or indirect involvement of religious employers." [Thanks to Steven H. Sholk for the lead.]

Supreme Court Denies Cert. In Two Church Property Cases

The U.S. Supreme Court today denied certiorari (Order List) in two cases involving property ownership disputes between break-away congregations and their parent church bodies. One was Gauss v. Episcopal Church in the Diocese of Connecticut, (Docket No. 11-1139, cert. denied 6/18/2012), in which the Connecticut Supreme Court had held that the church's "Dennis Canon" establishes an express trust of church property in favor of the Episcopal Church and the Diocese of Connecticut.

In the second case, Timberridge Presbyterian Church v. Presbytery of Greater Atlanta, (Docket No. 11-1101, cert. denied 6/18/2012),the Georgia Supreme Court had held, applying the neutral principles of law doctrine, that the break-away congregation's property was held in trust for the parent church. In a third church property case whose petition for certiorari had been coordinated with Timberridge, the Supreme Court last month dismissed the petition for certiorari upon motion of all the parties. In that case, Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, (Docket No. 11-1166, dismissed 5/21/2012), the Georgia Supreme Court had also held that the congregation's property belongs to the parent body, the Episcopal Church. (See prior related posting.) [Thanks to Stephen Blakeman for the lead.]

Challenge To Code Enforcement Against Religious Meetings In Home Dismissed On Collateral Estoppel Grounds

In Salman v. City of Phoenix, 2012 U.S. Dist. LEXIS 83305 (D AZ, June 15, 2012), an Arizona federal district court denied a homeowner's request for a temporary restraining order and preliminary injunction to bar enforcement of Phoenix's building, zoning, fire and safety codes against religious meetings in private homes. Plaintiffs claim that such enforcement violates their free exercise rights. Plaintiffs, who are born-again Christians, were holding weekly Bible study sessions in their home. After complaints by neighbors, city officials told plaintiffs that they needed to comply with code requirements for a church. Ultimately plaintiff Michael Salman was convicted in state court of multiple building and zoning code violations and sentenced to 60 days in jail, 3 years' probation, a $12,000 fine and was prohibited from have more than 12 people in his residence at a time. The federal district court dismissed the suit on collateral estoppel grounds, finding that it involves the same issues that were decided by another federal court judge in 2011. (See prior posting.) The court emphasized that under the Rooker-Feldman doctrine federal courts may not be used to obtain de facto review of state court judgments by lower federal courts.  Plaintiffs' arguments were considered in the state criminal trial of Salman.

Bishops Receive 10-Year Progress Report On Clergy Sex Abuse Reforms

The U.S. Conference of Catholic Bishops announced last week that at its Spring meeting which ended Friday, the National Review Board (NRB), a lay group advising it on handling of the sexual abuse of minors by clergy, issued "A Ten Year Progress Report" (full text of June 1, 2012 report). Here are excerpts from the Report:

In 2002, the bishops of the United States approved the Charter for the Protection of Children and Young People. Ten years later, there has been striking improvement in the Church’s response to and treatment of victims..... 

Perhaps the most important advance for the Church in the last decade is the realization by its leaders that cooperation with legal authorities is in the best interest of the Church and the dioceses/eparchies. Dioceses/eparchies are required to report all allegations of sexual abuse of minors to public authorities and to cooperate with all investigations on all matters of sexual abuse. They are also required to advise victims of their right to make a report to public authorities.....

A serious concern of the NRB is complacency or Charter drift – that is, thinking 10 years of action is enough and programs and vigilance can be taken for granted or worse, watered down. While the current trend shows a decrease in clergy sexual abuse, we must never let our guard down. Now is not the time to drift away from the moral requirements of the Charter and the legal requirements of reporting.... 

Recent Articles and Book of Interest

From SSRN:

• Benjamin L. Berger, Polygamy and the Predicament of Contemporary Criminal Law, (in Gillian Calder and Lori Beaman, eds. Polygamy's Wrongs? The Social Family in the Culture of Rights, Forthcoming).
• Ayelet Shachar, Demystifying Culture, (I-CON International Journal of Constitutional Law, 2011).
• Leslie Green, The Nature of Limited Government, (June 11, 2012).
• Ebrahim Moosa, Muslim Ethics and Biotechnology, (January 1, 2012).
• Mark Rahdert, Court Reform and Breathing Space Under the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 3, p. 835, 2012).
• Ebrahim Moosa, Aesthetics and Transcendence in the Arab Uprisings, (August 11, 2011).
• Joy Milligan, Religion and Race: On Duality and Entrenchment, (New York University Law Review, Vol. 87, No. 2, May 2012).
  

From SmartCILP:

• Frederick B. Jonassen, Kiss the Book...You're President...: "So Help Me God" and Kissing the Book in the Presidential Oath of Office, 20 William & Mary Bill of Rights Journal 853-953 (2012).
• Yedidia Z. Stern, Law and the Identity Malaise in Israel. (Reviewing Menachem Mautner, On Law and the Culture of Israel), [Abstract], 60 American Journal of Comparative Law 585-595 (2012).
• William J. Stuntz, Law and Grace, 98 Virginia Law Review 367-384 (2012).
• Ioanna Tourkochoriti, The Burka Ban: Divergent Approaches to Freedom of Religion in France and in the U.S.A., 20 William & Mary Bill of Rights Journal 791-852 (2012).
• Bernie D. Jones, Litigating the Schism and Reforming the Canons: Orthodoxy, Property & the Modern Social Gospel of the Episcopal Church, 42 Golden Gate University Law Review 151-215 (2012).
• Allan W. Vestal, To Soften Their Obdurate Hearts: The Southern Baptist Convention and Marriage Equality, [Abstract], 21 Tulane Journal of Law & Sexuality 49-124 (2012).
• Symposium. Discrimination By and Against Religion and the First Amendment. Articles by Martin E. Marty, Melissa Rogers, Mark E. Chopko, Marissa Parker, Katherine Lewis Parker, Eric Treene, Asma T. Uddin and Dave Pantzer. 10 First Amend. Law Review 201-418 (2012).
• Journal of Law and Religion, Vol. 27, No. 1, 2011-2012 has recently appeared. (Table of Contents).

Recent Book:

• Steven H. Resnicoff, Understanding Jewish Law, (Lexis Nexis, 2012).

Suit Against State Judge For Denying Easter Visit Is Dismissed

In Todd v. Ichikawa, 2012 U.S. Dist. LEXIS 82998 (ED CA, June 13, 2012), a California federal magistrate judge recommended dismissing, on the grounds of absolute judicial immunity from damages, an action claiming that a state court judge violated the free exercise clause in denying a father's application for a child visitation order. Derek Todd was permitted to visit his son only at the discretion of the mother and son. Todd sought a court order allowing him time with his son over Easter. He claimed that his religious practices for Easter consist of attending church, spending time with family, and searching for Easter eggs around the house. State Superior Court Judge Gary Ichikawa denied an ex parte hearing on Todd's application. The federal district court also held that insofar as Todd is seeking prospective inunctive relief, "it would be inappropriate for a federal court to interfere in this family law matter pending in state court."

Recent Prisoner Free Exercise Cases

In Knapp v. Kench, 2012 U.S. Dist. LEXIS 79112 (D NH, June 6, 2012), a New Hampshire federal district court accepted a magistrate's recommendations (2012 U.S. Dist. LEXIS 78981, May 14, 2012) and allowed a Muslim inmate who complained about the lack of Jum'ah services to move ahead with with his 1st Amendment and RLUIPA claims, but dismissed plaintiff's equal protection claim and his official capacity damage claims, while refusing to rule at this stage on whether an individual capacity damage claim lies under RLUIPA.

In Edwards v. Cornelius, 2012 U.S. Dist. LEXIS 79587 (MD FL, June 8, 2012), a Florida federal district court dismissed, with leave to amend as to some defendants, a Rastafarian inmate's claims regarding the vegan diet he received as a pre-trial detainee.

In Vandyke v. S.W.V.R.J., 2012 U.S. Dist. LEXIS 81299 (WD VA, June 12, 2012), a Virginia federal district court dismissed an inmate's 1st Amendment and equal protection challenges to jail officials' refusal to permit him to attend Christian worship services with other inmates while he was being held in protective custody. It also rejected his claim regarding religious materials supposedly taken from his Bible.

In Riley v. Brown, 2012 U.S. Dist. LEXIS 81408 (WD LA, June 12, 2012), a Louisiana federal district court accepted a magistrate's recommendations (2012 U.S. Dist. LEXIS 81409, April 26, 2012) and dismissed claims by a Muslim plaintiff claim that his tights under the 1st Amendment and RLUIPA were violated when the warden refused to permit him to keep a prayer rug he had received by mail.

In three related cases,a Texas federal district court  and dismissed a Muslim inmates complaints against various defendants about interference or denial of prayer services and denial of a special holy day meal. The dismissals were on a number of grounds, including immunity, failure to exhaust, and failure to state a claim on which relief can be granted. The cases are  Lemons v. Texas Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82127 (ND TX, June 13, 2012) adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81786, May 17, 2012);  Saddler v. Texas Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82128 (ND TX, June 13, 2012), adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81790, May 17, 2012) and Brown v. Texas Department of Criminal Justice. Department of Criminal Justice ID, 2012 U.S. Dist. LEXIS 82086 (ND TX, June 13, 2012), adopting a magistrate's recommendations (2012 U.S. Dist. LEXIS 81782, May 17, 2012).

In State v. Kennedy, (TN Ct. Crim. App., June 12, 2012), a Tennessee state appeals court upheld the constitutionality of a condition of lifetime community supervision that had been imposed on defendant, a sex offender, even though the condition, among other things, limited his ability to attend church.

In Sims v. Wegman, 2012 U.S. Dist. LEXIS 82813 (ED CA, June 13, 2012), a California federal magistrate judge allowed a Nation of Islam inmate to proceed with his free exercise and RLUIPA claims. Plaintiff contended that he was denied access to a kosher diet, the only religious diet offered that conformed with his religious beliefs.

In Palermo v. Van Wickler, 2012 U.S. Dist. LEXIS 82476 (D NH, June 13, 2012), a New Hampshire federal magistrate judge allowed a pre-trial detainee who is a member of the Asatru religion to proceed with his claims that he has been denied access to a religious diet, group worship with an Asatrú clergyperson, religious items, and religious literature.

Appeals Court Upholds Missouri Ballot Language On Proposed Religious Freedom Amendment

In Coburn v. Mayer, (MO Ct. App., June 13, 2012), a Missouri state appeals court upheld the sufficiency of the ballot language describing a lengthy proposed state constitutional amendment on religious freedom that is slated to appear on the August 7 primary ballot. The ballot language set by the state legislature for the measure is:

Shall the Missouri Constitution be amended to ensure:

• That the right of Missouri citizens to express their religious beliefs shall not be infringed;

• That school children have the right to pray and acknowledge God voluntarily in their schools; and

• That all public schools shall display the Bill of Rights of the United States Constitution.

It is estimated this proposal will result in little or no costs or savings for state and local governmental entities.

Missouri law (Sec. 116.155) requires that the legislature's ballot language be limited to 50 words and "be a true and impartial statement of the purposes of the proposed measure in language neither intentionally argumentative nor likely to create prejudice either for or against the proposed measure." The court rejected challengers' arguments that the language promises changes that are not in the measure, and is misleading because it fails to indicate it would reduce prisoners' rights and fails to mention it would allow students to refrain from participating in assignments or educational presentations. (See prior related posting.)

4th Circuit Upholds Sentencing Judge's Comments In Church Robbery Case

In Deyton v. Keller, (4th Cir., June 15, 2012), the U.S. 4th Circuit Court of Appeals denied a habeas corpus petition from 3 robbers who were sentenced to ten consecutive 64 to 86 month terms for their armed robbery of a church during Sunday services.  Petitioners unsuccessfully claimed that the judge's remarks during sentencing impermissibly referenced religious beliefs. The sentencing judge, after referring to victim impact statements, had told defendants:

you didn’t just steal money from people. You took God’s money. You took the Lord’s money and those of us that believe that there is an Almighty and that there is a being that created this world to go in and then steal money that is being tendered by people for the furtherance of an earthly kingdom is just outrageous. . . .

In denying habeas relief, the 4th Circuit said:

The disruption of worship services has an especial effect on the community that it was appropriate for a sentencing judge to take into account.... Indeed the law must protect places that demand special tranquility so that our fellow citizens can exercise their constitutional rights free from fear. Religious services are particularly intimate moments regardless of the faith being observed.... Much as we afford the home a particular sanctity...,  houses of worship must be refuges for those seeking guidance, peace, comfort, and religious fellowship without fear of criminal intimidation. 

Anti-Gay Evangelical Talk-Show Host Profiled

The current issue of the New Yorker carries a long feature article titled Bully Pulpit: An Evangelist Talk-Show Host’s Campaign to Control the Republican Party.  The article profiles Bryan Fischer, the Tupelo, Mississippi based host of the Christian radio show "Focal Point." The program is broadcast on 200 stations of the American Family Association radio network. The article's author Jane Mayer writes of Fischer:

He is one of the country’s most vocal opponents of what he calls “the homosexual-rights movement.” As he puts it, “A rational culture that cares about its people will, in fact, discriminate against adultery, pedophilia, rape, bestiality, and, yes, homosexual behavior.” His goal is to make this view the official stance of the Republican Party.

It was Fischer who began the attacks that led to the resignation in April of openly-gay Richard Grenell as Mitt Romney's national security spokesman.

Fischer is also virulently anti-Muslim, believing that Muslims should be barred from immigrating to the U.S. and serving in the U.S. military. He argues that the U.S. was a Christian nation when the 1st Amendment was drafted, and so non-Christians should have no 1st Amendment free exercise rights.

Study Says Religious Organizations Get $71B In Tax Subsidies and Other Aid

A study published in the June/July issue of Free Inquiry magazine titled How Secular Humanists (and Everyone Else) Subsidize Religion in the United States estimates that federal, state and local governments, through tax deductions, exemptions and direct expenditures, subsidize religion in the United States in an amount equal to at least $71 billion per year. Yesterday's Washington Post reports on the study.

Christian Groups Protest Government's "Two-Class" Concept For Religious Organizations

Baptist Press reports on a June 11 letter to Health and Human Services Secretary Kathleen Sebelius from over 140 leaders of Christian churches, educational institutions and other Christian organizations protesting the "two-class concept of religious organizations" that has been created by attempts to accommodate faith-based objections to the Obama administration's mandate on contraceptive coverage in health insurance policies. (Full text of letter.)  The letter says in part:

[W]e are united in opposition to the creation in federal law of two classes of religious organizations:  churches—considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations—outwardly oriented and given a lesser degree of protection.  It is this two-class system that the administration has embedded in federal law via ... rules providing for an exemption from the mandate for a narrowly defined set of “religious employers” and ... a different "accommodation” for non-exempt religious organizations.

And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations.... We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry.... The scheme honors acts of worship while burdening those whose faith leads them to service in our common life.

The letter was organized by the Institutional Religious Freedom Alliance.

Egypt's Top Court Rules Parliament Illegally Elected In Blow To Muslim Brotherhood

In what the New York Times describes as "a frontal legal assault on the Muslim Brotherhood," Egypt's Supreme Constitutional Court today ruled that Egypt's new Parliament was improperly elected and must be dissolved immediately.  As explained by the Times:

The question at issue in the high court’s decision was the application of a rule setting aside two-thirds of the seats in Parliament for selection by a system of party lists, also known as proportional representation. The other third was reserved for individual candidates competing in winner-take-all races.

Other authorities had decided before the parliamentary election that parties could run their members under their banners as candidates for the individual seats as well as the party list seats, but the court ruled Thursday that the parties should not have been allowed to compete for those seats, and so the results were invalid.

The Muslim Brotherhood’s Freedom and Justice Party, as the largest and strongest, stands to lose the most from the ruling. As many as 100 of its 235 seats in the 508-member assembly were elected as individual candidates running under its banner. If it lost all of those seats, the Brotherhood would still control the largest bloc in the chamber, and together with the ultraconservative Salafi parties Islamists would still command a majority. But the Brotherhood’s leadership of the chamber would be much less decisive.

In a second decision, the Court upheld the candidacy of presidential contender Ahmed Shafik, who was Hosni Mubarak's last prime minister. It ruled unconstitutional a law that attempted to prevent former Mubarak government top officials from running for President.  Shafik is in a runoff with Muslim Brotherhood candidate Mohamed Morsi for the presidency.

Israel- Vatican Continue Negotiations On Status and Taxation of Church

Zenit reports that the Bilateral Permanent Working Commission between the Holy See and the State of Israel met in the Vatican on June 12 to discuss an agreement that has been under negotiation for the last 13 years. The agreement relates to the life, activity and tax status of the Catholic Church in Israel, but does not deal with Church properties in Jerusalem or the West Bank. A communique issued after the meeting stated: "The Parties have agreed on future steps and to hold the next plenary meeting on 6 December 2012 at the Israeli Ministry of Foreign Affairs."

Faith Groups Urge Congressional Passage of ENDA

On Tuesday, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on "Equality At Work: The Employment Non-Discrimination Act" (full text of witness statements and video of full hearing). The bill, S. 811, would bar employment discrimination on the basis of sexual orientation or gender identity.  In connection with the hearing, 37 faith groups released a letter they had sent to each member of the Committee urging passage of the bill, saying "we cannot tolerate arbitrary discrimination against millions of Americans just because of who they are." The letter, at the same time, emphasized that

ENDA broadly exempts from its scope any religious organization, thereby ensuring that religious institutions will not be compelled to violate the religious precepts on which they are founded, whether or not we may agree with those precepts. In so doing, ENDA respects the protections for religious institutions afforded by the First Amendment and Title VII of the Civil Rights Act of 1964....

Bishops Plan "Fortnight for Freedom"

Reuters reported yesterday that U.S. Catholic Bishops, at their national convention in Atlanta, have agreed to show a united front through a "Fortnight for Freedom". Some liberal Catholics have been concerned that the bishops' religious liberty campaign, sparked particularly by the Obama administration's mandate requiring contraceptive coverage in health care plans, has taken on too partisan a tone. A website created by the Bishops to make information about the Fortnight for Freedom available, includes the following description:

The fourteen days from June 21—the vigil of the Feasts of St. John Fisher and St. Thomas More—to July 4, Independence Day, are dedicated to this “fortnight for freedom”—a great hymn of prayer for our country. Our liturgical calendar celebrates a series of great martyrs who remained faithful in the face of persecution by political power—St. John Fisher and St. Thomas More, St. John the Baptist, SS. Peter and Paul, and the First Martyrs of the Church of Rome.  Culminating on Independence Day, this special period of prayer, study, catechesis, and public action will emphasize both our Christian and American heritage of liberty. Dioceses and parishes around the country have scheduled special events that support a great national campaign of teaching and witness for religious liberty.

The website also displays a "Prayer for the Protection of Religious Liberty" which reads in part as follows:

... Give us the strength of mind and heart to readily defend our freedoms when they are threatened; give us courage in making our voices heard on behalf of the rights of your Church and the freedom of conscience of all people of faith.

Grant, we pray, O heavenly Father, a clear and united voice to all your sons and daughters gathered in your Church in this decisive hour in the history of our nation, so that, with every trial withstood and every danger overcome— for the sake of our children, our grandchildren, and all who come after us— this great land will always be "one nation, under God, indivisible, with liberty and justice for all."...

EEOC Sues Company For Religious Discrimination In Hiring

The EEOC announced Tuesday that it had filed a lawsuit in federal district court in Oklahoma charging a Nebraska-based lighting products supplier with violating Title VII of the 1964 Civil Rights Act by refusing to hire an applicant at its Tulsa (OK) location because of his religious beliefs.  According to the release:

... Voss Lighting, advertised a vacancy for an “operations supervisor”  position through the website of the First Baptist Church of Broken Arrow, the  church attended by the incumbent manager.  Although he did not himself attend the church,  Edward Wolfe, who had prior management experience, learned about the vacancy  and applied for the position.  The Voss manager  met with Wolfe and recommended him to the branch manager for an interview.  Throughout the application process, both managers  made numerous inquiries, both subtle and overt, into Wolfe’s religious  activities and beliefs.  They asked Wolfe  to identify every church he has attended over the past several years; where and  when he was “saved” and the circumstances that led up to it; and whether he  “would have a problem” coming into work early to attend Bible study before clocking in.