Delaware High Court Rejects Wife's Claim That Alimony Computation Infringed Her Free Exercise Rights

In Wright v. Wright, (DE Sup. Ct., July 10, 2012), the Delaware Supreme Court rejected a claim that the state's Family Court violated the free exercise clauses of the Delaware and federal constitutions in the way it computed a wife's ability to pay alimony. In reviewing her monthly expenses, the Family Court reduced her monthly charitable contributions from $1000 to $100, finding that to be a "more reasonable amount."  The $1000 represented the wife's tithing to her church, and she claimed that the alimony award prevents her from paying the obligatory 10% required by her religious beliefs. However, the Supreme Court held: "The Family Court found that even after the alimony payments, the Wife still has a surplus of $1,402—more than enough to pay for the remaining $900 for tithing should the Wife so choose."

Court Temporarily Enjoins Philadelphia's Ban On Food Program In Parks

Yesterday, a Pennsylvania federal district judge issued a temporary injunction against enforcement of Philadelphia's new ordinance that bans public feeding of groups of more than 3 people in any city park.  The ordinance is part of the city's efforts to close down an established program by Philadelphia churches to feed the homeless in city parks, and move the food program to indoor facilities.  As an interim measure, the program would be moved to an area outside city hall. (See prior posting.) According to the Philadelphia Inquirer, yesterday's ruling in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, July 12, 2012), did not focus on the constitutional objections that had been raised by plaintiffs, but instead on the fact that there had been little evidence that the City Hall site was preferable. In his ruling from the bench-- to be followed by a formal written opinion-- Judge William H. Yohn, Jr. said:

It seems to me that . . . the parks provide more dignity than the concrete apron outside City Hall. It doesn't strike me that City Hall is an acceptable option.

Judge Yohn said he was inclined to leave the temporary injunction in place for a year to give the city and homeless advocates time to work out an alternative arrangement.

Critical Reaction To German Ban on Ritual Circumcision of Boys Continues

Jewish Journal reported yesterday that rabbis from around Europe have held a 3-day meeting in Berlin to plan how to combat the ruling from a court in the city of Cologne last month banning ritual circumcision of young boys. (See prior posting.)  They plan further talks with Muslims and Christians who also see the ruling as a more general threat to religious freedom. Pinchas Goldschmidt, the chief rabbi of Moscow who organized the meeting, urged the German Jewish community to continue to perform circumcisions without waiting for a change in the law. The head of the German Medical Association, who has urged doctors to refrain from performing circumcisions until the legal situation is clarified, says that there is a risk that now increased numbers of non-medically trained persons will perform circumcisions. This could lead to medical complications.

This week Jewish and Muslim leaders also met with members of the German and the European  Parliament seeking legislation to stop the ban from spreading beyond the area affected by the Cologne court's decision.  Rabbi Goldschmidt said that the ban threatens the existence of Germany's Jewish community and is another example of creeping prejudice in European law against non-Christians. Germany's opposition Green Party promised to seek legislation to protect religious rights of Jews and Muslims.  Meanwhile, British Chief  Rabbi Lord Jonathan Sacks wrote a powerful denunciation of the German court's action, saying in part:

It is hard to think of a more appalling decision. Did the court know that circumcision is the most ancient ritual in the history of Judaism, dating back almost four thousand years to the days of Abraham? ... Did it know that banning milah [circumcision] was the route chosen by two of the worst enemies the Jewish people ever had, the Seleucid ruler Antiochus IV and the Roman emperor Hadrian, both of whom set out to extinguish not only Jews but also Judaism?.... If it did not [know this], then how was it competent to assess the claim of religious liberty? If it did, then there are judges in Germany quite willing to say to religious Jews, in effect, "If you don’t like it, leave." Do judges in Cologne today really not know what happened the last time Germany went down that road?

[Thanks to Eric Rassbach via Religionlaw for the lead on Lord Sack's comments.]

UPDATE: BBC News reports (7/13) that a spokesman for German Chancellor Angela Merkel said: "Circumcision carried out in a responsible manner must be possible without punishment..... For everyone in the government it is absolutely clear that we want to have Jewish and Muslim religious life in Germany." He added that the government would look urgently at ways to create "legal certainty."

Shiite Cleric Convicted of Blasphemy In Indonesia

In Indonesia yesterday, a court in Sampang district has sentenced Shiite Muslim cleric Tajul Muluk to two years in prison for "blasphemy causing public anxiety."  AFP reports that Muluk was arrested in April during anti-Shiite riots  on the island of Madura. Witnesses told the court that Muluk taught that the Qur'an is not an authentic text, that Muslims should pray only three times a day, and that the hajj pilgrimage is not obligatory. Human Rights Watch, calling for the government to drop all charges against Muluk, says that the Shiite community in Sampang's Nangkernang village has been under attack by Shiites since 2006 when 40 Sunni clerics and four police officers signed a public statement, declaring that the Shiite sect is heretical.  Human Rights Watch also decried the role of Bakor Pakem (the Coordinating Board for Monitoring Mystical Beliefs in Society) in prosecutions under Indonesian law. A part of the public prosecution office, Bakor Pakem is charged with "oversight in respect of religious beliefs that could endanger society and the state."

6th Circuit: Rehabilitation Act Non-Discrimination Provisions Apply To Religious Organizations Delivering Social Services

The federal Rehabilitation Act, Sec. 504 (29 USC 794(a)), prohibits any program receiving federal financial assistance from discriminating on the basis of disability. As defined in Sec. 794(b)(3), the ban covers an entire organization, even if the part of the organization that discriminated does not receive federal funds, where the organization "is principally engaged in the business of providing education, health care, housing, social services, or parks and recreation." Otherwise the ban applies only to the part of the organization that receives funding.  In Doe v. Salvation Army in the United States, (6th Cir., July 11, 2012), the U.S. 6th Circuit Court of Appeals reversed the district court's grant of summary judgment to defendant finding that questions of fact remain as to whether the Salvation Army principally engages in the business of providing social services. The court said:

nothing in the statute distinguishes between social services done for worship or spiritual reasons and social services done for secular reasons. If the statute had expressly excluded “religious organizations” or entities engaging in “religious services,” we would be faced with the difficult task of deciding whether § 504 applies to a religious organization that defined its religious service as the practice of social service. Under the current language of the statute, however, the Salvation Army is no different from any other church or religious organization that chooses to engage in one of the statutorily designated activities.

The court also rejected the Salvation Army's broader claim that religious organizations are totally exempt from Sec. 504.  The Salvation Army relied primarily on language in a 1987 Senate Report on amendments to the law.  The court however emphasized that Congress did not include any express exemption from Sec. 504 for religious organizations.  This stands in contrast to various religious exemptions that are included in other federal non-discrimination laws. [Thanks to Steven H. Sholk for the lead.]

Criminal Mistreatment Conviction of Faith-Healing Father Upheld

In State of Oregon v. Worthington, (OR App., July 11, 2012), an Oregon appellate court upheld the conviction of a member of the Followers of Christ Church for second degree criminal mistreatment in the death of his 15-month old daughter. Because of his religious belief in faith healing, defendant did not seek medical attention for his daughter who died of bacterial pneumonia and a blood infection associated with a large cystic mass that compromised her body's immune defenses. The court rejected defendant's argument that because of the state constitution's free exercise protections, he could be convicted only if the state established that he knew his conduct would bring about his daughter's death. Causing death is not an element of the criminal mistreatment charge. Defendant was acquitted by the jury on the separate manslaughter charge.  His wife was acquitted on both manslaughter and mistreatment charges. (See prior related posting.)

Residence For Sikh Priests Entitled To Tax Exemption

In Dasmesh Darbar Sikh Temple v. Marion County Assessor, (OR Tax Ct., July 11, 2012), the Oregon Tax Court, Magistrate Division, held that a house provided as a residence for a Sikh temple's three priests is entitled to a tax exemption. The county had determined that the house was a residence whose use was a mere convenience. State law requires that, for the residence to qualify for an exemption, clergy living there must be a requirement of church doctrine or a practical necessity.  The court concluded that this requirement was met because the priests are "carrying on the 500 year old tradition of living close to or in the temple to 'protect the scriptures (Guru Granth Sahib)'".

Agreement Reached For Language On Role of Shariah In Egypt's New Constitution

Egyptian Independent reported yesterday that drafters have reached an agreement on the language for Egypt's new constitution regarding the place of Islam and the role of Islamic law. The committee of Egypt's Constituent Assembly charged with drafting constitutional provisions on the basic components of the state is proposing the following as Articles 1 and 2 of the new Constitution:

1. The Arab Republic of Egypt is democratic, consultative, constitutional, and modernized; based on separation of powers and principal of citizenship, it is part of the Arabic and Islamic nation and tied to the African continent.

2. Islam is the religion of the state, and Arabic is its official language, and the principles of Islamic Sharia are the main source for legislation. Christians and Jews shall resort to legislation derived from their own religions.

"Principles of Islamic Sharia" will be interpreted by Al-Azhar. (See prior related posting.)

In Face of Lawsuit, County Willing To Remove 10 Commandments, But Sponsor Refuses

As previously reported, in May the American Atheists filed a lawsuit in federal district court in Florida challenging a 5-foot high granite Ten Commandments monument that had been erected in the courtyard of the Bradford County, Florida Courthouse. Now News4Jax reports that in order to avoid a costly legal battle, the county has directed the Community Men's Fellowship, the group that sponsored the monument, to remove it. However the group has refused. Responding to the county's formal notice, the group wrote last month: "We have prayerfully considered your request and have determined that we will not comply with the County's order." [Thanks to Scott Mange for the lead.]

Court Applies New York "Get" Law In Muslim Divorce

In Majdeh M. v. Jamshid A., (Kings Co. NY Sup. Ct., July 4, 2012), a New York trial court applied New York's "Get" Law, Domestic Relations Law Sec. 236 [B] [5] [h] (originally enacted to deal with Jewish divorce issues), to an action involving maintenance and equitable distribution awards in a Muslim divorce. The court held:

In the case at bar, the wife testified that she is a Muslim and if she does not obtain a religious divorce she will be unable to remarry. Although she will be divorced in accordance with secular law, she will not be considered a single woman within her religious community. She further testified that in the event she were to travel to Iran that her husband, or then ex-husband, could withhold his permission for her to leave Iran. The court credits the wife's testimony that she made arrangements for the parties to meet at a local mosque to address the religious divorce but that the husband simply did not respond.... 

The credible testimony by the wife leads this court to find that the husband's refusal to give the wife a religious divorce, thereby removing barriers to her remarriage, is a basis to exercise its discretion under Domestic Relations Law 236 [B] [5] [h] to disproportionately distribute marital assets. The husband shall have 45 days from the date of this decision to take any necessary steps to remove any barriers to the wife's remarriage. In the event that the husband fails to comply, he shall forfeit the maintenance and equitable distribution award made herein and repay to the wife the $4,000.00 cash advance heretofore discussed.

The court also held that the parties' mehrieh (dowry agreement), while not enforceable in a matrimonial action, can be enforced as a separate contract claim. It rejected the husband's contention that the mehrieh is merely a religious document.

U.S. Again Protests Iran's Imprisonment of Christian Pastor

On Monday, the U.S. State Department again issued a statement protesting Iran's continued imprisonment of Christian pastor Youcef Nadarkhani who, it says, still faces the threat of execution for simply following his faith. Monday marked the 1000th day of Nardkhani's imprisonment. CNN, which reports that Nardkhanis' next court hearing is scheduled for Sept. 8, explains the background:

Nadarkhani, born to Muslim parents..., converted to Christianity when he was 19. Later he was ordained as a minister and led a network of house churches in Iran. He was arrested in October 2009 after he lodged a protest with local education officials after learning his child was being forced to read from the Quran.... He was charged with apostasy and convicted in a provincial court -- which sentenced him to death. He appealed.... The case made its way to the Supreme Court, which said Nadarkhani's sentence could be overturned if he recanted. The 34-year-old pastor has refused.

(See prior related posting.)

Vatican's Battle With China Over Unapproved Ordinations Continues

The Vatican yesterday issued a communique (full text) stating that Rev. Joseph Yue Fusheng, who was ordained in China's Heilongjiang Province on July 6 as a bishop, without Vatican approval, has automatically incurred the sanction of excommunication as provided by Code of Canon Law, Canon 1382. It says he now lacks the authority to govern the priests and the Catholic community in the Province. The statement went on: "The Bishops who took part in the illicit episcopal ordination and have exposed themselves to the sanctions laid down by the law of the Church, must give an account to the Holy See of their participation in that religious ceremony."  Catholic World News, reporting on these developments, notes that the Vatican statement also applauded the July 6 ordination of Bishop Thaddeus Ma Daqin as an auxiliary of the Shanghai diocese with the approval of both the Vatican and the Chinese government.  However apparently Bishop Ma has now been taken into custody by Chinese officials after he announced during his ordination ceremony that he was quitting the government-backed Patriotic Association. [Thanks to Alliance Alert for the lead.]

Religious Rights Organization Changes Its Name

The group Alliance Defense Fund, an important litigant in religious liberty cases, announced yesterday that it is changing its name to "Alliance Defending Freedom," with a tag line "For Faith. For Justice." The change was explained as one intended to help people more easily understand the group's work and why it matters. An FAQ page describes ADF as: "an alliance-building legal ministry encouraging Christians to come together to ... protect and defend the religious freedom that was bestowed upon us by God and secured in the U.S. Constitution."

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.