RI Bill To Protect Cross On War Monument To Become Law Without Governor's Signature

Last week, the Rhode Island legislature passed and transmitted to the governor House Bill 8143 Sub A (full text) which creates the "Category One Memorial Designation Commission." The Commission is charged with identifying structures, sculptures, inscriptions and icons that existed prior to 2012 that are located on government property and which have "attained a secular traditional, cultural, or community recognition and/or value." These may include memorials related to military affairs. Otherwise eligible monuments are not excluded because they have a "recognizable identification with a known or established religion." The bill is obviously aimed at protecting a memorial to World War I servicemen that features a Latin Cross and is located in the Woonsocket fire station's parking lot. The Freedom from Religion Foundation has complained that the cross violates the Establishment Clause. (See prior posting.) According to WPRI News, on Monday Gov. Chaffee sent letters to the Speaker of the House and President of the Senate indicating that the bill would become law without his signature.  He said that the bill does not change the fact that it is up to the courts to decide whether any particular monument violates Establishment Clause restrictions. 

Suit Dropped After School District Agrees To Neutral Speech Rule

Yesterday's Beaumont (TX) Enterprise reports that a lawsuit filed in April against the Nederland (TX) Independent School District by the father of a 3rd grader has now been dropped because the school district has changed its rules in response to the suit.  At issue was the refusal by a teacher at Hillcrest Elementary School to allow the student to hand out to his classmates his handwritten invitations to a meeting at a local Baptist Church of Awana Clubs, an evangelical Christian youth organization. The new school rules provide that now the school district will not discriminate against any religious or non-religious private, "student-to-student non-disruptive speech."

New Survey On Women's Rights and Religious Views In Arab Spring Countries

Gallup yesterday released a new poll on After the Arab Uprisings: Women on Rights, Religion, and Rebuilding. The survey that covered countries affected by Arab Spring uprisings showed, among other things, that

... Arab women in the countries surveyed are far more similar to the men in their respective countries than they are to fellow females in the region. The majority of women and men across countries experiencing political upheaval do want some level of religious influence in law, though people’s views of the specific role for Sharia vary widely from one country to another.... Those who want no legislative role at all for Sharia are in a small minority in every country.

The survey also reports:

Gallup generally finds few differences between those who rate religion as “important” and those that rate it as “not important” in regard to their attitudes toward women’s rights, with one exception. The results show that seven in 10 adults (69%) who find religion important support women’s right to initiate a divorce, compared with fewer than five in 10 adults (46%) who say religion is not important.

School Board's Rejection of Proposed Referendum on Religion In Schools Upheld

In Torres v. Davis, 2012 U.S. Dist. LEXIS 87446 (D NJ, June 22, 2012), a New Jersey federal district court dismissed free exercise and equal protection claims of a Camden, NJ resident who wanted the Camden Board of Education to place on the election ballot a voter referendum on 3 questions:

1) Do you ... want your Public Schools to open the daily session in prayer in a pledge of allegiance to the god we trust by the children in acknowledgment of God and His son Jesus Christ. The Prayer given to us by His Son Jesus Christ the "Our Father Which art in Heaven hollowed [sic] be Thy Name."...

2) Do you ... want a Holy Bible based curriculum in your Public Schools which teaches the truth and the presence of God as creator in alignment with our New Jersey State Constitution where we are Grateful to Almighty God and looking towards Him for a blessing unimpaired in the endeavor to properly educate our children....

3) Do you ... want those fellow Camden, NJ residents who are on probation, or parole, or incarcerated for non violent offenses their civil right to vote in Camden School District Elections as a part of the rehabilitation process....

The court concluded that the Board did not have jurisdiction to place the third issue on the ballot. As to issues 1 and 2, the court held that adoption of them would violate the Establishment Clause. The court also held that the commissioner of education and attorney general are immune from damage claims under the 11th Amendment.

Court Dismisses Suit Seeking Return of Large Donations To Monastery

In Hoyle v. Dimond, (WD NY, June 22, 2012), a New York federal district court dismissed fraud, misrepresentation, RICO, deceptive practices, false advertising and equitable claims by plaintiff Eric Hoyle who was seeking return of part or all of the over $1 million that he had donated to the Most Holy Family Monastery (MHFM).  Hoyle, who rejected his Protestant faith, became a "traditional" Catholic and joined MHFM in 2005 in part because it was consistent with his beliefs that rejected  the Vatican II changes to the Catholic Church and did not recognize post-Vatican II Popes as valid. In 2007, Hoyle left MHFM and set up his own website condemning it as heretical.  In his lawsuit, Hoyle asserted that MHFM had misrepresented its historical connections to the Benedictine Order, which her relied on in choosing it. The court concluded:

... [E]ach of plaintiff’s claims is based on his assertion that the defendants misrepresented their status as Benedictine monks and the affiliation of MHFM with the Order of Saint Benedict.  Questions regarding the establishment of MHFM as a Benedictine community and its current identification as a “traditional” Catholic Benedictine monastery are matters of religious doctrine over which the court has no jurisdiction.  Moreover, plaintiff has failed to raise a genuine issue of material fact regarding the establishment of MHFM.

Today's Military's Gay Pride Event Criticized By Christian Chaplains' Group

As reported by God and Country blog, today the Pentagon is hosting, for the first time, an event celebrating LGBT Pride Month. (Background from AP).The publicity for the event stresses diversity as a great strength.  The Chaplain Alliance for Religious Liberty, a group made up primarily of retired military chaplains representing Christian chaplain endorsing organizations, last week issued a statement condemning the decision by the Department of Defense to sponsor the event, saying:

The details of how the military will celebrate have not been made public, but the Pentagon announced Friday that Defense Secretary Leon Panetta wants to honor the contributions of homosexual service members. Ironically, although DoD makes attempts to strengthen traditional families, it has never promoted a “heterosexual month” to honor the contributions of heterosexual members who make up at least 97 percent of the military.

Cert. Denied In Mt. Soledad Cross Case

The U.S. Supreme Court today denied certiorari in Mount Soledad Memorial Association v. Trunk (Docket No. 11-998) and the companion appeal in United States v. Trunk (Docket No. 11-1115) (Order List.) In the case, a 3-judge panel of the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. Subsequently the full 9th Circuit refused an en banc rehearing. However 5 judges, joined an opinion dissenting from the denial of en banc review. (See prior posting.) Justice Alito filed a statement explaining his reasons for going along with today's denial of review by the Supreme Court, saying in part:

The current petitions come to us in an interlocutory posture. The Court of Appeals remanded the case to the District Court to fashion an appropriate remedy, and, in doing so, the Court of Appeals emphasized that its decision “d[id] not mean that the Memorial could not be modified to pass constitutional muster [or] that no cross can be part of [the Memorial].”.....  Because no final judgment has been rendered and it remains unclear precisely what action the Federal Government will be required to take, I agree with the Court’s decision to deny the petitions for certiorari.  

Today Is 50th Anniversary of Engle v. Vitale School Prayer Decision

Today is the 50th anniversary of the U.S. Supreme Court's decision in Engle v. Vitale (1962) which held unconstitutional under the Establishment Clause New York's requirement that a non-denominational prayer composed by the state Board of Regents be recited in public school classrooms at the beginning of each school day.  This was the first in a series of cases that barred school authorized prayer and Bible-reading in the public schools. Yesterday's Deseret News, marking the anniversary, reviews the impact of the Engle decision.

Same-Sex Couple Sues NY Catholic Hospital Over Family Health Benefits

The Advocate reported Friday on a class action lawsuit filed last week in federal district court in New York by a married lesbian couple who claim that a Catholic hospital illegally discriminated against them by refusing them the same family health benefits offered to other employees. The suit was filed against St. Joseph Medical Center in Yonkers, NY, as well as against the insurance company that administers the hospital’s self-insurance plan.  In a statement on the case, the New York State Catholic Conference said in part:

In 2011, when Governor Andrew Cuomo made the redefinition of marriage his top legislative priority, we warned not only that such action would have negative consequences for society, but also that it would infringe on the religious liberty of Catholic employers..... As we stated when the law was passed, the so-called "religious exemption" language included in the bill was insufficient to protect religious institutions.

(See prior related posting.)

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.