D.C. School Vouchers To Continue For Another Year Under Agreement Between Administration and Congressional Backers

The New York Times reported earlier this week that the school voucher program for Washington, D.C. school children will be renewed for another year under an agreement that House Speaker John Boehner and Senator Joseph Lieberman have reached with the Department of Education.  While the voucher program was authorized for 5 more years in compromise legislation signed last year, President Obama's budget originally did not seek appropriations for the program this year. Education Secretary Arne Duncan announced Monday however an agreement to "grow the D.C. Opportunity Scholarship Program from the current enrollment of about 1,615 to approximately 1,700 students for the coming year to allow for a statistically valid evaluation of the program, as directed by Congress.” He added though that "Beyond that commitment ... we remain convinced that our time and resources are best spent on reforming the public school system to benefit all students...." The voucher program provides up to $8,000 a year for students in grades K-8 and $12,000 for high schoolers to attend private or parochial schools. [Thanks to Blog from the Capital for the lead.]

House Committee Holds Hearings On American Muslim Response To Its Prior Hearings On Domestic Radicalization

Yesterday, the U.S. House Committee on Homeland Security, chaired by Rep. Peter King, held hearings on The American Muslim Response to Hearings on Radicalization within their Community. The committee's website makes available a video of the hearing plus transcripts of all the witnesses' statements. This was the fifth in a series of controversial hearing chaired by Rep. King, and the committee yesterday also released a report (full text) on its findings from the first four hearings. Here is an excerpt from the Executive Summary:

... [T]he Committee held four investigative hearings since 2011 to examine the threat of violent radicalization emanating from within the Muslim-American community, where a small but potentially lethal percentage of that population has plotted severe mass casualty attacks against our homeland.

This is no phantom threat. It shares no equivalency with threats posed by other domestic terrorists who have no foreign ties or any demonstrated capability of organizing themselves for spectacular attacks the homeland.

Only one of the four witnesses appearing before the Committee took serious issue with its findings.  Faiza Patel, Co-Director of the Liberty and National Security Program of the Brennan Center for Justice, said in her testimony:

Terrorism is a serious threat to our country. Our response must be equally serious and must be driven by evidence, not assumptions and stereotypes. But this Committee’s recent hearings on radicalization do not, in my view, rest on a firm factual basis. They proceed from a premise – which is contrary to empirical evidence – that “radicalization” is prevalent among American Muslims and poses an existential threat to our country. Moreover, they adopt a view of “radicalization” that treats religious belief as a precursor to terrorism.

These empirically flawed assumptions, when given the imprimatur of a Congressional hearing, have concrete negative impacts. They undermine our safety by alienating the very communities who have helped law enforcement uncover and foil attempts at terrorism. 

Suit Charges Hebrew National With Misrepresenting Its Level of Kosher Compliance

The Forward yesterday reported on a class action lawsuit that has been filed against ConAgra Foods, the parent company of Hebrew National, claiming that the company has violated various state consumer protection laws by falsely claiming that its products are 100% kosher "as defined by the most stringent Jews who follow Orthodox Jewish law." The 65-page complaint (full text) in Wallace v. ConAgra Foods, Inc., originally filed May 18 in state court, but removed by defendants on June 6 to a Minnesota federal district court, contends that Hebrew National fails in a number of ways to comply with the "most stringent" kosher slaughter practices. Hebrew National's kosher certifying agency, Triangle K, issued a statement (full text) calling the allegations in the complaint  "outrageously false and defamatory." Anticipating one defense, plaintiffs' complaint (Paragraph 8) alleges:

The lawsuit does not seek to have the Court create or define what the applicable standard for kosher meat is....The Court is only asked to hold the Defendant to the standard established by its own representations to the public. Holding the Defendant to its own representations would not create a fusion of government and religious functions and would further not require the Court to place its imprimatur on the religious views of one branch of Judaism to the exclusion of others.

Controversy Continues Over Whether Texas Charter Schools Are Promoting Religion

Yesterday's San Antonio Current has a long article about the Shekinah Learning Institute, an educational organization that has created 13 publicly-funded charter schools across Texas, and particularly in the San Antonio area. Two of the schools in San Antonio, the Shekinah Radiance Academy and the Radiance Academy of Learning, received $15 million in state funds and another $2.3 million in federal funds for the 2009-2010 school year. Together they had some 2,000 students. Americans United for Separation of Church and State claims that the schools improperly promote religion. Several of the schools are located inside active churches, and two of them share the name of their host church. The head of the Shekinah Learning Institute is Cheryl Washington, who has said that God has given her dominion  to grow the Almighty's garden-- an education system-- in San Antonio. The Texas Education Association has apparently opened an investigation into Shekina's finances. The June issue of Americans United's magazine, Church & State, carries an article on the schools titled Showdown At Shekinah, as well as a second article titled Charter for Controversy that explores the issue of promotion of religion by a wide range of publicly-funded charter schools around the country.

Tribunal Says Northern Ireland Sinn Fein Official Discriminated Against Protestant Applicant

The Northern Ireland Fair Employment Tribunal has ruled that the government's Department of Regional Development (DRD) under its former Sinn Fein minister Conor Murphy discriminated on religious grounds against Dr. Alan Lennon, an applicant for the position of chairman of Northern Ireland Water.  According to reports from UTV News and the Irish Times yesterday, the Tribunal concluded that successful candidate Sean Hogan won out over Lennon (and 3 other Protestant candidates) "because [Hogan] was not from a Protestant background and because he was known to the Minister and his ministerial colleagues." The Fair Employment Tribunal also found that during the 2007-2011 period when Conor Murphy was DRD chairman, Catholic applicants were at least twice as likely as Protestant applicants to be appointed to positions. The Tribunal will hold a second hearing later to determine a damage award.  The DRD has 6 weeks to decide whether to appeal the Tribunal's decision.

Argentina Ceremony To Repudiate Anti-Semitic Acts During Falklands War

JTA reports that in Argentina today, political leaders, legislators, foreign diplomats and representatives of various religious groups will participate in a ceremony honoring Jewish soldiers who fought in the Falklands War 30 years ago, and acknowledging the anti-Semitism that they suffered at the hands of their fellow servicemen.  One veteran recounted his experiences:

I was insulted as a Jew. Our superiors told the other soldiers that the Jewish soldiers would betray them in the combat. I was tortured. I was forced to put my hands, legs and sometimes head in cold water in the cold climate of the islands. They told me that this punishment was because I was a Jew.

This is the first event to repudiate the treatment of Jewish soldiers during the Falklands War.

Kosher, Halal Slaughter Will Continue In Netherlands After Compromise; Issue Resurfaces In Poland

As reported by Radio Netherlands Worldwide and JTA, the Dutch Senate on Tuesday voted not to ratify a law that would have banned Jewish and Muslim ritual slaughter. While the bill passed the House of Representatives in Parliament last year by a large majority (see prior posting), 51 out of 75 Senators voted against it after a compromise agreement was reached between the Deputy Minister of Agriculture on the one hand, and Jewish and Muslim groups on the other. The agreement (Radio Netherlands Worldwide and Chabad.org ) allows ritual slaughter without first stunning the animals to continue, but a veterinarian must be present during slaughter, and must anesthetize the animal if it is not unconscious within 40 second after slaughter. The protocol, which also contains other protective measures, will be overseen by a committee of scientists. Animal Rights Party leader Marianne Thieme remains unhappy with the compromise.

Meanwhile, according to Polskie Radio today, in Poland, the country's attorney general, Andrzej Seremet, has submitted an application to Poland's Constitutional Tribunal after a number of non-governmental organizations claimed that the Ministry of Agriculture had "exceeded its legal rights" in creating an exception for ritual slaughter from the requirement that animals be stunned before they are slaughtered. In May, Poland's Agricultural Minister Marek Sawicki rejected demands of animal rights activists to end kosher and halal slaughter in Poland. (See prior posting.)

California Diocese Settles Clergy Sex Abuse Case For $2M

The Orange County Register reports that on Monday, just as jury selection was about to begin in a California state court, the Roman Catholic Diocese of Orange settled a sex-abuse and cover-up lawsuit for $2 million. Also, as part of the settlement, Bishop Tod Brown will send a letter of apology to plaintiff, who is now an Air Force lieutenant colonel who has flown combat missions in many parts of the world.  The suit claims that a once popular and high profile former priest, Michael Harris, abused plaintiff when he was a teenager.  As as principal of Mater Dei high school, Harris called plaintiff into his office to congratulate him and give him a rosary blessed by the pope as a reward for chasing down the perpetrator in a purse snatching he witnessed. During this meeting he sexually assaulted plaintiff.

Summary Judgment Denied In Zoning Dispute Over Use of Rabbi's House for Religious Services

In 554 Queen Anne Road Inc. v. Teaneck Board of Adjustment, (NJ Super. Ct., June 18, 2012), a New Jersey state trial court, finding "voluminous issues of material fact," refused to grant summary judgment to either side in a zoning dispute between an Orthodox Jewish congregation and officials in Teaneck, New Jersey. (See prior posting.) The dispute involves a challenge to the numerous conditions imposed by zoning officials on the use of the  home of the rabbi of the congregation for worship services. The suit contends that the conditions violate RLUIPA as well as various state and federal constitutional provisions. [Thanks to Thomas Rockland for the lead.]

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.)