Amended Complaint OK'd In Establishment Clause Challenge To Funding of Children's Home

In the long running litigation in Pedreira v. Kentucky Baptist Homes for Children, 2012 U.S. Dist. LEXIS 93754 (WD KY, July 6, 2012), a Kentucky federal district court has overruled objections by Kentucky Baptist Home for Children (KBHC) and permitted plaintiffs to file a second amended complaint as state taxpayers challenging on Establishment Clause grounds the payment of state funds to KBHC for the care of children. The court held that the allegations in the amended complaint that the hiring practices and employment policy of KBHC are "evidence of" an Establishment Clause violation are permissible even though the district and appeals court previously held that the firing of plaintiff because she is a lesbian was not itself an Establishment Clause violation.

Ohio High Court To Review Science Teacher's Firing

As reported by the Columbus Dispatch, the Ohio Supreme Court last week agreed to hear an appeal in Freshwater v. Mount Vernon City School District Board of Education. (Links to court filings and grant of review.) In the case, a state appeals court upheld the firing of John Freshwater, a middle school school science teacher. The school board based the firing on Freshwater's injecting his religious views, including belief in Creationism, into the classroom and for insubordination in failing to remove certain religious materials from the classroom after being ordered to do so by the school board. (See prior related posting.) The Court granted review on two issues: (1) whether Freshwater could be fired if the school board has not provided a clear indication of the kinds of materials or teaching methods that are unacceptable; and (2) whether the mere presence of religious texts from the school's library and/or the display of a patriotic poster can justify his firing. [Thanks to Don Byrd for the lead.]

Is A Homeless Shelter A "Church" In Zoning Code?

In Lexington, Kentucky on Friday, a lawsuit was filed in state circuit court by Emmanuel Apostolic Church and the Catholic Action Center challenging the city Board of Adjustment's vote last month to revoke their conditional use permit under which they are operating the Community Inn as a homeless shelter. The city wants to move the shelter after reports of loitering, panhandling and residents urinating in public. As reported by the Lexington Herald-Leader, under the Lexington Fayette County Urban Zoning Ordinance, Art. 8, "churches" may be granted a conditional use permit to use property in areas zoned B-4 (wholesale and warehouse use). The city said that during the permitting process they assumed that the building would be used as a traditional church. Only days before it opened did neighbors realize that the Community Inn would house up to 75 homeless men overnight. The shelter also provides several Bible courses during the week and traditional religious services on Saturday mornings. The lawsuit raises the question of the proper definition of "church" under the city's zoning laws. One of the pastors involved argues: "Wherever the will of the Lord is being done, that's a church."

New York AG Settles With Municipal Hospitals On Religious Accommodation

The New York Attorney General's office announced Friday that it had reached a settlement on religious accommodation with the New York City Health and Hospitals Corporation-- the largest municipal health care organization in the country. The settlement institutes best practices at HHC's facilities, including Jacobi Medical Center, to make certain that employee accommodation requests are handled in accordance with state and federal anti-discrimination laws. As reported by the blog Vos Iz Neias?, the Attorney General's investigation of the matter stems from complaints by Orthodox Jewish and Seventh Day Adventist nurses at Bronx's Jacobi Medical Center who claimed they were not being allowed to modify their work schedules so they could observe their Sabbath. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Tamar Hostovsky Brandes, Separate and Different: Single-Sex Education and the Quest for Equality, (Israel Law Review 45(2) 2012, pp. 235-266).
• Mark L. Movsesian, Crosses and Culture: State-Sponsored Religious Displays in the U.S. and Europe, (Oxford Journal of Law and Religion, 2012).
• Kathryn E. Kovacs, Alleviating the Tension between Species Preservation and Religious Freedom, (July 2, 2012).
• Myles Frederick McLellan, Jehovah's Witnesses and Child Protection Legislation: The Right to Refuse Medical Consent, (July 4, 2012).
• Andrew F, March and Naz K. Modirzadeh, Ambivalent Universalism? Jus ad bellum in Modern Islamic Legal Discourse, (European Journal of International Law, Forthcoming).
• Ryan C. Tuck, Parting the Red Sea: The Religious Case for LGBT Equality, (July 6, 2012).
• Brian Leiter, Waldron on the Regulation of Hate Speech, (Notre Dame Philosophical Reviews, 2012 Forthcoming).
• Mohamed Ariff, Meysam Safari and Shamsher Mohamad, Sukuk Securities, Their Definitions, Classification and Pricing Issues, (in M. Ariff, M. Iqbal & S. Mohamed (Eds.), The Islamic Debt Market for Sukuk Securities: The Theory and Practice of Profit Sharing Investment (pp. 11-41), Cheltenham). 

From SmartCILP and elsewhere:

• Conference: The Theology of Work and the Dignity of Workers, 50 Journal of Catholic Legal Studies 1-316 (2011).
• R. Glei and S. Reichmuth, Religion Between Last Judgement, Law and Faith: Koranic Dīn and Its Rendering in Latin Translations of the Koran, [Abstract], (Religion 42, No. 2, 2012, 247-271).

Recent Prisoner Free Exercise Cases

In Baker v. Buckner, 2012 U.S. Dist. LEXIS 90443 (D CO, June 29, 2012), a Colorado federal district court adopted a magistrate's recommendations (2012 U.D. Dist. LEXIS 90502, May 15, 2012) and dismissed with leave to amend a Muslim inmate's claim that his free exercise rights were violated when his religious pictures, Bible, Qur'an, prayer rug, and other books were confiscated. His due process claims as to the confiscation were dismissed with prejudice.

In Johnson v. Heyns, 2012 U.S. Dist. LEXIS 90968 (WD MI, July 2, 2012), a Michigan federal district court dismissed claims against some defendants, but permitted an inmate to proceed against others, in his claim that his free exercise rights were infringed when documents containing prayers, myths and depictions of his Mexica-Aztec religion were confiscated and when he and others were no longer be permitted to conduct their prayer circle using the Nahuatl language.

In Young v. Hooks, 2012 U.S. Dist. LEXIS 91740 (SD GA, July 2, 2012), a Georgia federal district court adopted a magistrate's recommendation and allowed an inmate to proceed against the warden (but dismissed the Attorney General as a defendant) in a claim that plaintiff was not allowed to have certain sacred items that are necessary to perform rituals and ceremonies.

In Wallace v. Miller, 2012 U.S. Dist. LEXIS 91295 (SD IL, March 5, 2012), an Illinois federal magistrate judge recommended allowing an inmate to proceed on RLUIPA and free exercise claims against a Department of Corrections contract Rabbi. Plaintiff alleged that he had converted to an orthodox form of Judaism, but was unsuccessful in obtaining religious items, dietary services, opportunities to fast, worship, observe religious holidays, and receive religious instruction. Apparently defendant rabbi did not consider plaintiff to be Jewish.

In Pettiford v. Davis, 2012 U.S. Dist. LEXIS 92020 (SD IN, July 3, 2012), an Indiana federal district court dismissed the RLUIPA and free exercise claims of plaintiff who, while held in home detention, was disciplined for drug use violations by being confined at home. Plaintiff had claimed his religious rights were violated because during this period he was not permitted to attend church services.

In Anello v. Williams, 2012 U.S. Dist. LEXIS 90615 (D OR, June 28, 2012), an Oregon federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 90599, March 20, 2012) and dismissed claims by a Native American inmate who is a Thelemite, who argues that his 1st Amendment and RLUIPA rights were infringed. While he was on STM cell restriction for 6 days, plaintiff's religious materials were confiscated and he was denied access to religious services.

NY Marriage Equality Act Survives Open Meeting Act Challenge

In New Yorkers for Constitutional Freedoms v New York State Senate, (NY App. Div., July 6, 2012) a New York state appeals court rejected a challenge to the state's Marriage Equality Law (which permits same-sex marriage) enacted last year. Plaintiffs claimed that private lobbying of the Republican Conference of the State Senate in favor of the law by New York City Mayor Michael Bloomberg and Governor Andrew Cuomo violated the Open Meetings Act. The court concluded that the exemption in the Open Meetings Law for deliberations of political caucuses, including invited staff or guests, covered the lobbying being challenged. It rejected the argument that the exemption for invited guests only includes guests of the same political party as the caucus. Advocate.com reports on the decision.

Sudan's Leader Promises 100% Islamic Constitution

Reuters reports that in Sudan today President Omar Hassan al-Bashir in a speech to Sufi Islamic leaders promised that Sudan's next constitution will be 100% Islamic.  He said in part:

We want to present a constitution that serves as a template to those around us. And our template is clear, a 100 percent Islamic constitution, without communism or secularism or Western (influences).And we tell non-Muslims, nothing will preserve your rights except for Islamic sharia because it is just.

Al-Bashir, who has been in power for 23 years and is wanted by the International Criminal Court for war crimes in Darfur, gave no date for the new constitution. Sudan's opposition parties have called for strikes and protests to topple al-Bashir's government.

Suit Challenges Community College's Speaker and Literature Distribution Rules

The Thomas More Society yesterday filed a lawsuit in federal district court in Ohio challenging the speaker access and literature distribution rules of Sinclair Community College in Dayton, Ohio. The suit was brought on behalf  of two students who are members of the college’s Traditional Values Club and the founder of two pro-life groups who is often invited to speak on campuses. The complaint (full text) in Deddens v. Warren County Montgomery County Community College District, (SD OH, filed 7/6/2012) alleges that the College’s policies place broad restrictions on the distribution of materials on campus, require advance approval of speakers with broad discretion in the college president to deny an application, and prohibit recognized student clubs from hosting more than two events per month. The school also prohibits any kinds of signs, whether by sponsors or protesters, at student events. The suit alleges that these rules and policies operate as prior restraints on speech and are overbroad regulations that have a chilling effect on speech.

Discrimination Claim By Fired Employee Who Asked Customer About Religion Is Dismissed

In Botnik v. HearingPlanet Inc., (MD YN, July 3, 2012), a Tennessee federal district court dismissed as unproven Title VII and state employment discrimination claims by a sales representative for a hearing aid company. Plaintiff, who says his national origin is Russian Israeli and his religion if Christian Jewish, was fired after his co-workers complained he was involved in an inappropriate telephone conversation with a customer. In the conversation, plaintiff asked the customer about her national origin and asked whether her husband was Jewish. Plaintiff cites the company's policy of trying to establish rapport with the customer, but the company fired him on the ground that he had asked inappropriate questions of a customer that made his co-workers uncomfortable. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

Feared Impact on Military Chaplains of DADT Repeal Has Not Materialized

A lengthy AP article published Wednesday concludes that despite dire warnings to the contrary, the military's elimination of the "don't ask, don't tell" policy has created no serious infringements of military chaplains' free exercise rights or rights of conscience. At most, 2 or 3 chaplains' departures from active duty were related to the policy's repeal. Even outspoken opponent of repeal, Archbishop Timothy Broglio of the Catholic Archdiocese for the Military Services, says he is unaware of any major problems that have arisen because of the repeal. "It’s more a question of what might occur in the future," he said, adding, "As time goes by, it will be a challenge, to make certain you’re not silently condoning." According to the article:

The loudest assertions that conservative chaplains face problems come from outside the active-duty ranks, notably from a coalition of retired chaplains and other religious leaders called the Chaplain Alliance for Religious Liberty. In a letter to a Republican congressman in March, the alliance contended that repeal has been implemented “with an open and palpable hostility” to chaplains and service members who disapprove of homosexuality.

[Thanks to Pew Forum for the lead.] 

Drunk Driver's Sentence Includes Study of Book of Job

The Rock HIll (SC) Herald reported yesterday that a respected state trial court judge has sentenced a woman who pleaded guilty to drunk driving to 8 years in jail, 5 years probation and substance abuse counseling. In addition Judge Michael Nettles is requiring her to read the Biblical book of Job and write a summary of it.  Defendant Cassandra Tolley's attorney says that Tolley is "thankful for the assignment" and has already started working on it. Tolley, a long-time victim of abuse who then turned to alcohol, is remorseful for the serious injuries she caused to two people in the car crash that resulted from her driving with a blood alcohol level 4 times the legal limit.

Jewish Institutions Awarded Most of the Federal Security Grants for Non-Profits

Last week, the federal Department of Homeland Security announced the final allocations for seven FY 2012 Preparedness Grant programs. One of the programs is the Nonprofit Security Grant Program that for the coming fiscal year provides $10 million for hardening targets and enhancing physical security at nonprofit organizations that are at high risk of a terrorist attack and are located in certain urban areas. The Forward reported yesterday that Jewish institutions received 97% of the 2012 grants under this program. The program has particularly benefited Jewish organizations since it was begun in 2005. (See prior related posting.) DHS Secretary Janet Napolitano has explained this, saying that there are special terrorism risks facing the Jewish community. Also the Jewish community has been particularly aware of the grant program. In an interesting choice of words,William Daroff of the Jewish Federations of North America defended the allocations saying: "This is not pork. This is Homeland Security officials making decisions based on threat levels."

Scientist Says "God Particle" Nickname For Higgs Boson Could Offend

As reported by the Washington Post, scientists in Geneva, Switzerland yesterday announced that they had found the elusive Higgs boson, a sub-atomic particle that gives mass to other particles. The particle has sometimes been referred to as the "God particle" because it is so fundamental that without it nothing could exist. Christianity Today reports on why scientists do not like the "God particle" nickname. Peter Higgs, who predicted the existence of the particle, has said:

I find it embarrassing because, though I'm not a believer myself, I think it is the kind of misuse of terminology which I think might offend some people.

Committee Of Egypt's Constitution Drafting Panel Narrows Religious Liberty Protections

In Egypt, the country's new constitution is being drafted by a 100-person Constituent Assembly representing an array of interests. (See prior posting.) Yesterday, citing the Middle East News Agency, Aswat Masriya reported that the Constituent Assembly's Rights and Freedoms Committee has agreed on wording that narrows the protection of religious freedom.  Art. 46 of the current constitution provides: "The State shall guarantee the freedom of belief and the freedom of practice of religious rites." Reportedly the new agreed-upon language is:

Religious freedom is complete and the state guarantees freedom of worship for believers in heavenly religions.

The limitation of protections to "heavenly" religions is seen as excluding Shiites and Baha’is.  Only two members of the committee objected to the new language.

State High Court Review Sought of Discrimination Finding In Refusal To Photograph Same-Sex Ceremony

A photography firm is asking the New Mexico Supreme Court to review a decision in which a state appellate court found a violation of the state's anti-discrimination law when the firm refused to provide its services to photograph a same-sex commitment ceremony. (See prior posting.) The petition for certiorari to the state's high court (full text) in Elane Photography, LLC v. Willock, (filed 6/27/2012) raises compelled speech, free exercise and state RFRA arguments. [Thanks to Neil Davis for the lead.]

Court Accepts Settlement In 10 Commandments In Schools Case

Today's Roanoke Times reports that a Virginia federal district court yesterday accepted the parties' settlement agreement and formally dismissed a lawsuit against the Giles County (VA) School Board that had been brought to challenge the schools' posting of Ten Commandment displays in the schools.  As previously reported, the Board had already agreed to replace the Ten Commandments text that was displayed at Narrows High School with a copy of a page from a history textbook captioned "Roots of Democracy." [Thanks to Scott Mange for the lead.]

Woman Excluded From Catholic Church's Masses Loses Lawsuit Challenging Actions

In Lye v. City of Lacey, 2012 U.S. Dist. LEXIS 91523 (WD WA, June 29, 2012), a Washington federal district court dismissed a suit that was brought against the Seattle Catholic archdiocese and its pastoral coordinator, as well as against the city of Lacey, Washington, by a woman who had been barred by the Church, through formal trespass warnings, from attending Mass at the largely Korean Sacred Heart parish. The Church's move came after plaintiff continued to advocate for resumption of a Mass given in Korean.  The court held that as to the Church and its officials, no 1st Amendment claims are available because they are not state actors.  It also found that plaintiff had not alleged sufficient facts to support either a conspiracy or an outrage claim. It  dismissed plaintiff's defamation claim because she failed to name as a party the priest who had allegedly made the statement. The court did partially grant plaintiff's motion to amend her pleadings, but only to add a new party as defendant in the defamation claim.

Sacred Sufi Shrines Destroyed By Islamists In Mali

In northern Mali last week, the Islamist (and Al-Qaeda allied) Ansar Dine ("Defenders of Faith") ousted the Tuareg MNLA rebels from the famed town of  Timbuktu. As reported by AFP, even though the Tuareg rebels spearheaded the takeover of northern Mali by various opposition groups last March, now the Islamists have moved to take over control. Then, over the weekend, according to the Christian Science Monitor, Ansar Dine destroyed seven historic tombs and the door to an ancient mosque in Timbuktu. These sites were already on UNESCO's heritage danger list. The tombs are sacred shrines for local Sufi Muslims, but the Islamist say that they amount to idolatry. The International Criminal Court quickly issued a statement calling the destruction a potential war crime. ABC News has more detail on the holy places that were destroyed. The Organization of Islamic Cooperation called the destruction the work of "bigoted extremist elements." An AFP report dated Wednesday says that Economic Community of West African States has 3,300 troops ready to enter Mali, but it is awaiting either a U.N. resolution authorizing their use, or a stronger unity government in Mali that can request the troops.

Israeli Committee On Law To Draft Haredi Into the Military Is Dissolved

In Israel, Prime Minister Benjamin Netanyahu yesterday disbanded the so-called Plesner Committee that was supposed to create a new law to end the exemption from the military draft for haredi (ultra-Orthodox) Jews after Israel's Supreme Court struck down the Tal law which gave yeshiva students exemptions. Haaretz reported yesterday that two of the government coalition partners withdrew from the committee last week after it would not go far enough in meeting their demands that all Israeli Arabs (who are now draft exempt) be subject to the draft. Then the haredi representative on the committee left over threats to use personal sanctions against ultra-Orthodox men who avoid military service. Netanyahu said: "Unfortunately, the committee could not reach an agreed-upon formulation and it could not form a recommendation that would garner a majority in the Knesset."

UPDATE: Jerusalem Post reports that despite the Prime Minister's dissolution of the Plesner Committee, on Wednesday (July 4) Committee chairman Yohanan Plesner at a news conference presented the committee's recommendations in his own name. The recommendations call for a complex arrangement that would result in most haredi men serving in an obligatory national service by the time they reach age 23 or else facing a significant fine.