Islamist Invasion of Art Show In Tunisia Raises Fears Among Secular Intellectuals

Reuters yesterday reported from Tunisia on the impact of a June 10 incident in which Islamists broke into the Printemps des Arts fair being held at Abdeliya Palace in Tunis and destroyed a few pieces of artwork to protest art they deemed insulting to Islam. This was followed by days of Islamist riots that killed one person. Among the most controversial art on display was one depicting veiled women as punching bags and another showing veiled women in a pile of stones (commenting on stoning of adultresses). The piece causing the most anger was one that spelled out "Sobhan Allah" (Glory to God) in ants. Reuters comments that this is the latest incident to raise fears among secular intellectuals that the freedoms won in the Arab Spring revolution are being slowly contracted by the religious views of zealots.  Meriem Bouderbala, one of the curators at Printemps des Arts, said: 

After the revolution, artists had a feeling of freedom. They wanted to express freely. They produced very powerful art. The artists were not expecting this reaction. That is why they feel so fragile. They turned to the government but it is not supporting them so they feel they have hit a wall.

Church's "As Applied" Zoning Challenge Dismissed For Lack of Ripeness

Woodridge Church v. City of Medina, 2012 U.S. Dist. LEXIS 87687 (D MN, June 25, 2012) is a challenge under RLUIPA, the 1st and 14th Amendments and the Minnesota constitution to Medina, Minnesota's refusal to approve a church's expansion plans.  The city's refusal was followed by a moratorium on church construction and then the creation of a new zoning district that includes the church. The church withdrew its application for a conditional use permit and filed suit when city council implemented a square footage requirement below that of the church's planned expansion. The court dismissed for lack of ripeness the church's "as applied" challenges to the city's zoning decisions since the church has not obtained a final ruling from the city on its plans. However the court permitted the church to proceed with its facial challenges to the city's zoning decisions and its damage claims growing out of the zoning moratorium.

Hungarian Reform Jewish Congregations Challenge Non-Recognition In European Court

Jewish Journal reported from Hungary that the European Union for Progressive Judaism and Hungary’s two Reform Jewish congregations on Tuesday submitted an application to the European Court of Human Rights contending that Hungary's new Church Law is illegal and discriminatory. Hungary's Constitutional Court has already rejected their claims. Under the Hungarian law, which took effect on January 1, 3 other branches of Judaism are granted official recognition, but the Reform movement is not.  The law recognizes Neolog (Hungarian Conservative), Orthodox and Status-quo (associated with Chabad-Lubavitch) congregations. (Background.)

Cert. Denied In Challenge To Firings Of Moorish American Correctional Officers

The U.S. Supreme Court on Monday denied certiorari in Bey v. New York, (Docket No. 11-1340, cert. denied 6/25/2012). (Order List.) In the case, the 2nd Circuit dismissed on res judicata grounds a suit by two former New York City correctional officers who were members of the Moorish American Religion-- which teaches that Moors are exempt from taxes. In the suit, the officers challenged on constitutional grounds their termination for filing false tax documents. The Court concluded that a prior lawsuit which plaintiffs lost was based on the same series of transactions. (See prior posting.)

German Court Says Parents May Not Decide On Religious Circumcision For Their Sons

The Algemeiner as well as the Jewish Press report that a district court in Cologne, Germany ruled this week in an appeal from a trial court's decision that parents do not have the right to decide on religious circumcision for their sons.  The court said that non-medically necessary circumcision causes "serious and irreversible interference in the integrity of the human body." The court went on to hold that circumcision "contravenes the interests of the child to decide later on his religious beliefs."  It held that the parents' rights to provide for their children and their religious freedom are not sufficient justifications for imposing the harm caused by circumcision. According to Haaretz, the case grew out of a suit brought by German authorities against a Muslim doctor after his botched circumcision on a 4-year old boy caused the boy to be rushed to an emergency room. While the court held that doctors in the future can only perform circumcision for health-related reasons, it acquitted the doctor involved in this case because it was not clear previously that his conduct was illegal. Criticizing the court's decision, Rabbi Aryeh Goldberg of the Rabbinical Center of Europe said: "The decision is contrary to human rights charter of the European Union, to which the German legal system is committed, and undermines the basic right to worship in the German Constitution."

UPDATE: The full text of the court's decision in the case is now available via UK Human Rights Blog. The original decision in German is here. An English translation is here. [Thanks to Eric Rassbach via Religionlaw listserv.]

Former Student's Challenge To Remediation Plan On Counseling LGBT Clients Dismissed

In Keeton v. Anderson-Wiley, (SD GA, June 22, 2012), a Georgia federal district court, in a lengthy opinion, dismissed claims by a former graduate student in Augusta State University's graduate counselor education program that her constitutional rights were infringed when she was dismissed for refusing to complete a required remediation plan.  The remediation requirements were imposed when graduate student Jennifer Keeton, a devout Christian, told faculty that she would not condone the propriety of homosexual relations or a homosexual identity in a counseling situation.  This position violates professional ethical standards of the American Counseling Association that require counselors to respect the diversity of their clients and avoid imposing values on them that are inconsistent with counseling goals. The court rejected both Keeton's facial overbreadth and vagueness challenges as well as her "as applied" challenges to the remediation plan. Finding no viewpoint discrimination against Keeton, the court said:

Keeton's conflation of personal and professional values, or at least her difficulty in discerning the difference, appears to have been rooted in her opinion that the immorality of homosexual relations is a matter of objective and absolute moral truth. The policies which govern the ethical conduct of counselors, however, with their focus on client welfare and self-determination, make clear that the counselor's professional environs are not intended to be a crucible for counselors to test metaphysical or moral propositions. Plato's Academy or a seminary the Counselor Program is not; that Keeton's opinions were couched in absolute or ontological terms does not give her constitutional license to make it otherwise.

The court also rejected Keeton's "compelled speech" claim, saying that when someone voluntarily chooses a profession, the person must comply with its rules and ethical requirements.  Finally the court rejected Keetons's free exercise of religion, unconstitutional condition and equal protection challenges.

The court's decision was consistent with an earlier 11th Circuit decision in the case that refused to grant a preliminary injunction because plaintiff had not shown a substantial likelihood of succeeding on the merits. (See prior posting.)  SPLC reports on the district court's latest decision.

Issues of Fact Remain On Accommodation of Employee's Sunday Observance

In Jacobs v. Scotland Manufacturing, Inc., (MD NC, June 21, 2012), a former employee who was fired for refusing to work on Sundays for religious reasons sued under Title VII of the 1964 Civil Rights Act. The company claimed that it had offered the employee an accommodation. He could use vacation time in lieu of working on Sundays. Plaintiff, however, contended that this arrangement also violates his religious beliefs. The court refused to grant summary judgment for defendants, saying that factual questions remain as to the reasonableness of the employer's proposed accommodation and as to whether other accommodations would cause the employer undue hardship. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

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."