Recent Articles, eBook, and Call for Papers of Interest

From SSRN (U.S. Law):

• Matthew L. Jacobsmeier, Religion and Perceptions of Candidates' Ideologies in U.S. House Elections, (June 15, 2012).
• R. George Wright, A Cost-Benefit Analysis of Religious Persecution: Casting Up a Dread Balance Sheet, (June 15, 2012).
• Christopher McCrudden, Catholicism, Human Rights and the Public Sphere, (International Journal of Public Theology, Vol. 5, pp.331-351, 2011).
• Kelly Catherine Chapman, Gay Rights, the Bible, and Public Accommodations: An Empirical Approach to Religious Exemptions for Holdout States, (Georgetown Law Journal, Vol. 100, No. 5, 2012).
• Richard W. Garnett, Religious Freedom and the Nondiscrimination Norm, (in Matters of Faith: Religious Experience and Legal Response, Austin Sarat, ed., Cambridge Univ. Press, Forthcoming).
• Jessica L. Waters, Testing Hosanna-Tabor: The Implications for Pregnancy Discrimination Claims and Employees’ Reproductive Rights, Stanford Journal of Civil Rights & Civil Liberties, Forthcoming).

From SSRN (Non-U.S. Law):

• Mohamed Abdelaal, Taqlīd v. Ijtihād: The Rise of Taqlīd as the Secondary Judicial Approach in Islamic Jurisprudence, (Journal of Jurisprudence, 151, 2012).
• Bernard M. Levinson, Die Neuassyrischen Ursprünge Der Kanonformel in Deuteronomium 13,1 (The Origins of the Neo-Assyrian Canon Formula in Deuteronomy 13:1), (in Viele Wege zu dem Einen: Historische Bibelkritik - Die Vitalität der Glaubensüberlieferung in der Moderne, Stefan Beyerle, Axel Graupner, and Udo Rüterswörden (eds.), 2012).
• Bernard M. Levinson, Revisão Legal E Renovação Religiosa No Antigo Israel (Legal Revision and Religious Innovation in Ancient Israel), (São Paulo, Brazil: Paulus Editora, 2011).
• Sabine Frerichs, Clashing Constitutions: On the Tectonics of the Egyptian Revolution 2011, (June 21, 2012).
• Munir Ahmad Mughal, Islamic Concept of Human Rights, (June 3, 2012).
• Adrian Fong, A Time for Choosing: The Marriage Ordinance, (June 17, 2012).

Recent eBook:

• Cardinal Timothy M. Dolan, True Freedom: On Protecting Human Dignity and Religious Liberty, (June 2012).

Call for Papers:

• Elon Law Review, Emerging Issues in First Amendment Jurisprudence: Interpreting the Relationship Between Religion and the State in the Modern Age.

Recent Prisoner Free Exercise Cases

In McFaul v. Valenzuela, (5th Cir., June 18, 2012), the 5th Circuit rejected a Celtic Druid inmate's free exercise, equal protection, RLUIPA and Texas Religious Freedom Restoration Act challenges to prison rules that barred him from having religious medallions that cost more than $25 and limited him to medallions that prison officials had approved for each religion.

In Zook v. Tucker, 2012 U.S. Dist. LEXIS 83237 (ND FL, June 14, 2012), a Florida federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 83238, April 11, 2012) and dismissed a Muslim inmate's free exercise, equal protection and RLUIPA challenge to a prison rule barring the wearing of beards except for medical reasons.

In Wright v. Fayram, 2012 U.S. Dist. LEXIS 84804 (ND IA, June 18, 2012), an Iowa federal magistrate judge concluded that an inmate's adherence to Nation of Gods and Earths constitutes a sincerely held religious belief entitled to 1st Amendment protection, and that prison authorities are not justified in prohibiting weekly and monthly classes and meetings and group worship. However, because plaintiff is currently the only prisoner at the facility who is an NGE member, his group worship claims are not ripe and should be dismissed.

In Jenner v. Sokol, 2012 U.S. Dist. LEXIS 85179 (D CO, June 19, 2012), a Colorado federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 85137, April 5, 2012) and denied a motion to file an amended complaint as well as denying a preliminary injunction which plaintiff sought to permit him to attend Jewish services within the time prescribed for candle lighting, and to require provision of Jewish faith supplies and books.


In Thomas v. Lawler, 2012 U.S. Dist. LEXIS 86240 (MD PA, June 21, 2012), a Pennsylvania federal district court vacated a prior default judgment in a Muslim prisoner's complaint that he has significant physical disabilities and that prison officials force him to climb five flights of stairs to worship in a chapel with insufficient space and without a restroom.


In Bermea-Cepeda v. Chartier, 2012 U.S. Dist. LEXIS 85848 (D SC, June 21, 2012), a South Carolina federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 86646, May 8, 2012) and dismissed an inmate's complaint that he has been denied use of the prison chapel for Santa Muerte meetings and religious services.

Muslim Brotherhood Candidate Wins Egyptian Presidential Election

CNN and Reuters report that Egypt's election commission announced today that Muslim Brotherhood backed candidate Mohammad Morsi has won the presidential election. Morsi won 51.7% of the vote. In recent weeks, Morsi has promised to form an inclusive government that will be acceptable to the country's large Christian minority.

UPDATE: Reuters has a profile of Morsi.

Court Rejects Moorish Science View of U.S. Law

In El v. O'Brien, 2012 U.S. Dist. LEXIS 85699 (ED NY, June 20, 2012), a New York federal district court rejected somewhat incoherent claims by a member of the Moorish Science Temple that Moorish Science documents, as well as an 1836 treaty between the United States and Morocco, be applied by the court in an action involving the validity of a mortgage.  According to the court: "Apparently, Plaintiff ascribes to the ethnic/religious Moorish movement, which teaches certain views of United States history and its legal system, which are, to put it mildly, outside the mainstream, as they give special import to treaties between the United States and Morocco."

Congressmen Complain Air Force Is Trying To Remove References To God

Congressman Diane Black announced Thursday that a letter (full text) signed by 66 members of Congress was sent earlier this week to Defense Secretary Leon Panetta complaining that the Air Force "repeatedly has succumbed to demands from organizations that seek to remove all references to God and faith in our military."  The letter cites five specific instances, and says that they "go beyond the requirements of the Constitution, and appear to have been influenced by the more stringent guidance issued by Gen. Schwartz in September 2011." (See prior posting.) According to Fox News, an Air Force statement in response to the letter says that members of the Air Force are "free to exercise their constitutional right to practice their religion -- in a manner that is respectful of other individuals' rights to follow their own belief systems." The Fox News article also explores each cited incident, saying they "were not all as clear-cut as the lawmakers made them sound."

Latvian Justice Minister Resigns In Protest Over Proposed Holocaust Restitution

European Jewish Press reported yesterday that in Latvia, Justice Minister Gaidis Berzins resigned Thursday in protest of Prime Minister Valdis Dombrovskis’ announced plans to create a commission to investigate paying restitution to families of Latvian Jews who property was taken during the Holocaust. Berzins, leader of the right-wing All For Latvia-For Fatherland and Freedom party, says that the proposal places the interests of one minority group over that of others.  The restitution issue has been divisive in Latvia for a number of years. In 2006, Parliament blocked a bill that would have paid $55 million in restitution.  Many Latvians argue that the current government should not be responsible for war crimes and property seizures carried out when the country was under Nazi, and then Soviet, control.

Congress Gives Final Passage To Bill Giving More Flexibility To Church Pension Plans

As reported by BNA Securities Law Daily [subscription required], the Senate on Thursday passed H.R. 33, the Church Plan Investment Clarification Act (full text). The House passed the bill almost a year ago.  The bill is a technical amendment to the Securities Act of 1933 that, as explained by The Hill (7/18/2011), is designed to allow churches to manage their pension plans more effectively.  It will now be possible for churches to invest their pension funds in a collective investment trust maintained by a bank.

Priest Convicted on Charge of Enabling Others To Sexually Abuse Children

In Philadelphia today, for the first time anywhere in the country, a priest who did not himself commit any act of child sexual molestation was criminally convicted for enabling or covering up clergy sex abuse by others.  The Philadelphia Inquirer reports that a jury, after 13 days of deliberations, found Msgr. William J. Lynn guilty on one count of endangerment.  He was acquitted on two other charges, one of conspiracy and a second endangerment charge. The jury deadlocked on charges of attempted rape and endangerment against Lynn's co-defendant, the Rev. James J. Brennan. Lynn served as the Philadelphia Archdiocese's chief investigator on clergy misconduct. Prosecutors claimed he failed to take sufficient steps to remove pedophile priests.

Federal Court Certifies Question of Puerto Rico Gated Communities To Commonwealth's Supreme Court

Last year, the U.S. 1st Circuit Court of Appeals remanded to the federal district court an as applied challenge by Jehovah's Witnesses to Puerto Rico's Controlled Access Law, instructing the district court to create remedies for the infringement of religious freedom posed by gated communities to Jehovah's Witnesses who want to enter neighborhoods to proselytize. (See prior posting.) The appeals court, in its decision, recognized that accommodating Jehovah's witnesses creates more problems in cases where, instead of having guards at gates, the gates are unmanned and controlled by resident-operated buzzers. Now, on remand, in Watchtower Bible Tract Society of New York v. Municipality of Santa Isabel, 2012 U.S. Dist. LEXIS 85593 ( PR, June 18, 2012), a Puerto Rico federal district court has certified to the Puerto Rico Supreme Court the question of whether the Access Control Law permits the use of unmanned control access gates, and if so, whether the use of such gates violates provisions in the Commonwealth of Puerto Rico's Constitution that protect freedom of religion and freedom of movement.

In Unusual Move, Federal Government Sues FLDS Twin Towns For Discrimination

In a highly unusual move yesterday, the U.S. Department of Justice filed a religious discrimination lawsuit in federal district court in Arizona against two neighboring towns, Colorado City, Arizona and Hildale, Utah.  The twin towns have been dominated by the polygamous sect, the Fundamentalist Church of Jesus Christ of Latter-day Saints (FLDS). (DOJ Press Release.) Public utilities in each town were also named as defendants The complaint (full text) in United States v. Town of Colorado City, Arizona, (D AZ, filed 6/21/2012) alleges:

The Cities’ public officials, the Colorado City/Hildale Marshal’s Office ... and utility entities have acted in concert with FLDS leadership to deny non-FLDS individuals housing, police protection, and access to public space and services.... The Marshal’s Office has inappropriately used its state-granted law enforcement authority to enforce the edicts of the FLDS, to the detriment of non-FLDS members. In addition, the Cities’ officials have misdirected and misused public resources in the service of the FLDS.

For at least 20 years, the Cities have operated as an arm of the FLDS, in violation of the Establishment Clause of the First Amendment .... The Cities’ governments ... have been deployed to carry out the will and dictates of FLDS leaders, particularly Warren Jeffs and the officials to whom he delegates authority. For decades, officials of the Cities have, by operating at the direction and for the benefit of the FLDS, abdicated their official duties to protect the rights of all citizens equally and to administer governmental functions consistently with the Establishment Clause of the United States Constitution.

Alleging violations of the1st, 4th and 14th Amendments, as well as the federal Fair Housing Act, the suit seeks an injunction, damages and civil penalties. The Salt Lake Tribune reports on the lawsuit.

18% of Americans Say They Would Not Vote For Mormon President

Gallup released a new poll yesterday indicating that 18% of Americans say they would not vote for a Mormon for President.  The number who have responded this way in past polls over the years since 1967 has varied from 17% to 24%. In 1967, when Mitt Romney's father George Romney was considering a run for President, 17% of those polled said they would not vote for a Mormon. In the current poll, those most likely to say they would not vote for a Mormon are individuals with a high school education or less, and Democrats. The same poll showed that 33% of Americans do not know Mitt Romney's religion. 29% of that group said they would not vote for a Mormon.

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.]