Rabbi Sues Over Pennsylvania Funeral Requirements

A Pittsburgh, Pennsylvania rabbi has filed a federal lawsuit against the Pennsylvania Board of Funeral Directors and two other state officials seeking an injunction against interpreting Pennsylvania's funeral-director law as requiring licensed funeral director when a funeral is supervised by a religious authority and there is no embalming or fee-for-service. According to yesterday's Pittsburgh Post Gazette, Rabbi Daniel Wasserman charges that rabbis, funeral homes and grieving families are being pressured by the state funeral board.  The complaint in the lawsuit alleges:

Plaintiff -- unlike some clergy from other religions -- is now being threatened with civil action and criminal prosecution, including stiff fines and even imprisonment, for conducting religious funerals in place of licensed funeral directors who, under color of state law, interfere in purely religious observances for no other justification than personal profit.

Obama Signs New Law That Includes Ban On Disruptive Picketing of Military Funerals

In a ceremony at the White House (President's remarks), President Obama yesterday signed HR 1627, the Honoring America’s Veterans and Caring for Camp Lejeune Families Act.  Section 601 of the Act prohibits demonstrations (including picketing, speeches and handbilling) within 300 feet of a military funeral or at the residence of the deceased service member or veteran's family during the period from 2 hours before to 2 hours after the funeral. It also prohibits activities within 500 feet of a military funeral that willfully impede access to it. The section was presumably in response to widely publicized picketing of military funerals by members of the Westboro Baptist Church who carried signs, which among other things, protested U.S. acceptance of homosexuality.  In a case last year (see prior posting), the U.S. Supreme Court upheld Westboro's activity as protected by the 1st Amendment. The Act signed by the President limits its demonstration ban to individuals who willfully make noise or diversion that intentionally disturbs (or tends to disturb) the peace and good order of the funeral.  In its Westboro decision, the Supreme Court emphasized that the demonstration at issue in that case did not disrupt the funeral.

Court Rejects Diplomatic Immunity And 1st Amendment Claims As To Church's Auto Registration

In Living In Jesus Truth Ministry v. Wise, (D NV, Aug. 3, 2012), Tod Brenbarger, a minister for Living In Jesus Truth Ministry, sued challenging an administrative fine that had been imposed by Nevada for registering two vehicles to the church at a fictitious address. He used post office boxes instead of a physical address as required by Nevada law. In the state proceedings, Brenbarger claimed immunity as a public minister of World Prayers Answered, which he asserted is a foreign ecclesiastical state. The state court judge delayed ruling on the claim and Brenbarger failed to appear for the next hearing. So the fine against him was upheld. At that point Brenbarger filed this suit in a Nevada federal district court, asking for a total of $60 million in damages and interest against the administrative law judge and the state attorney general and her staff. The court dismissed these claims on 11th Amendment and quasi-judicial immunity grounds. As to Brenbarger's claim for injunctive relief against the Department of Motor Vehicles, the court held that Brenbarger "failed to plausibly allege that World Prayers Answered is a sovereign ecclesiastical state." It also rejected his claim that  DMV violated his and his church's "First Amendment right for a church to not have a fixed address."  It held that as a pro se litigant, Brenbarger cannot represent the church in court.  Corporations must be represented by counsel. It also found no free exercise or Establishment Clause violations as to Brenbarger personally in the vehicle registration requirement.

USCIRF Issues New Report On Constitutions Of Muslim Countries

The U.S. Commission on International Religious Freedom last Friday released a new report titled The Religion-State Relationship & the Right to Freedom of Religion or Belief: A Comparative Textual Analysis of the Constitutions of Majority Muslim Countries and Other OIC Members.  It surveys the constitutions of 46 Muslim-majority countries and 10 others that are OIC members. According to USIRF's summary of the report:

Approximately 44% of the world’s Muslim population live in 23 majority Muslim countries that have declared Islam to be the state religion; the remaining 56% live in countries that either proclaim the state to be secular or make no pronouncements concerning an official state religion.

Approximately 39% of the world’s Muslims live in 22 countries whose constitutions provide that Islamic law, principles, or jurisprudence should serve as a source of, or limitation on, general legislation or certain select matters.  This is the case in 18 of the 23 countries where Islam is the religion of the state, as well as four majority Muslim countries where Islam is not the declared state religion.

Only 6 of the countries surveyed, in all of which Islam is the declared state religion, provide no constitutional provision at all concerning religious freedom specifically.  Other countries, including ones in which Islam is the declared state religion, provide constitutional guarantees of the right to freedom of religion or belief, which comply in varying degrees to international human rights norms.  

Recent Articles of Interest

From SSRN:

• Diana Ginn and David Blaikie, Judges and Religious-Based Reasoning, (Constitutional Forum, Vol. 19, No. 2, p. 53, 2011).
• Bruce Ledewitz, Toward a Meaning-Full Establishment Clause Neutrality, (Chicago-Kent Law Review, Vol. 87, No. 3, 2012).
• Shahar Lifshitz, The Pluralistic Vision of Marriage, (Marriage at Crossroads, Elizabeth Scott, Marsha Garrison, eds., Cambridge publishing, 2012).
• Sylvie Courtine-Denamy, The 'Chosen People' and the Universal Commonwealth: From Bergson to Voegelin, (July 26, 2012).
• Susan C. Hascall, Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice, (Berkeley Journal of Middle Eastern & Islamic Law, Forthcoming).
• Mohamed Abdelaal, Taqlīd v. Ijtihād: The Rise of Taqlīd as the Secondary Judicial Approach in Islamic Jurisprudence, (Journal of Jurisprudence 151, 2012).
• Muhammad Munir, The Islamicity of Punjab Pre-emption Act, 1991 in Pakistan, (July 30, 2012).

From SmartCILP:

• Shirley Darby Howell, Religious Treatment Exemption Statutes: Betrayest Thou Me With a Statute?, 14 Scholar 945-985 (2012).
• Benjamin Shmeuli and Yuval Sinai, Liability Under Uncertain Causation? Four Talmudic Answers To a Contemporary Tort Dilemma, 30 Boston University International Law Journal 449-495 (2012).

Estonia Plans To Tighten Regulation of Kosher Slaughtering

JTA reports today that in Estonia, Sirje Jalakas, the head of the country's Animal Welfare Bureau, says that Estonia plans to change its laws governing kosher slaughter of animals in light of the 2010 DialRel report that says kosher slaughter causes higher risk of pain in animals than methods that involve stunning the animals before slaughter. However, Jalakas says that Estonia will not ban kosher slaughter, and the country's chief rabbi says that authorities are consulting him on the proposed changes. Estonia already has strict regulation of kosher slaughter.  Authorities must be notified at least 10 days in advance of each slaughter, and the procedure is overseen by a government inspector.  Animals are stunned immediately after their throats are cut-- a procedure known as post-cut stunning and which is not approved by all rabbis.

Recent Prisoner Free Exercise Cases

In Dunn v. Pennsylvania Department of Corrections, (3rd Cir., July 30, 2012), the 3rd Circuit affirmed a  Pennsylvania federal district court's opinion dismissing an inmate's complaint that he was denied access to plants, herbs, crystals, tarot cards, runes, spices, and an altar cloth in his cell to practice his Wiccan religion, and that he was not permitted to grow his hair or beard and was denied a religious adviser.

In United States v. White, (10th Cir., July 31, 2012), the 10th Circuit agreed with a decision of the Kansas federal district court refusing to change defendant's judgment of conviction to reflect his new Muslim name that he took legally on the same day he was sentenced. The court also refused to order the Bureau of Prisons to change their database records to recognize defendant's Muslim name.

In Garraway v. Lappin, (3rd Cir., July 31, 2012), the 3rd Circuit rejected claims by a Muslim inmate that his rights under the 1st Amendment and RFRA were violated by prison policies limiting group prayer, lack of a full-time Sunni Muslim chaplain, alleged commissary markup of the price of Muslim religious items, prison policies as to Halal food and as to the number of books he could keep in his cell.

In Selah v. Fischer, 2012 U.S. Dist. LEXIS 104931 (ND NY, July 27, 2012), a New York federal district court adopted a federal magistrate's recommendation (2012 U.S. Dist. LEXIS 105388, July 3, 2012) and permitted an inmate who practices the Ethiopian Orthodox Christian faith to proceed against several individual defendants on his free exercise, RLUIPA and equal protection claims that authorities failed to recognize and accommodate his religious beliefs in numerous ways.

In Hodgson v. Roy, 2012 U.S. Dist. LEXIS 104665 (D MN, July 27, 2012), a Minnesota federal district court, adopting a magistrate's recommendations as to this part of the case (2012 U.S. Dist. LEXIS 105082, May 2, 2012), dismissed on standing grounds an inmate's Establishment Clause challenge to the prison system's Christian-based InnerChange Freedom Initiative.

In Marin v. Corrections Corporation of America, 2012 U.S. Dist. LEXIS 105547 (ND OH, July 29, 2012), an Ohio federal district court dismissed a complaint by an inmate that the prison chaplain has not purchased various divination tools and other items needed by him for the practice of his Santeria religion.

In Macedo v. Zeyer, 2012 U.S. Dist. LEXIS 106327 (ND OH, July 31, 2012), an Ohio federal district court dismissed as moot Jewish inmate's claim seeking and injunction to order that the prison's kosher food be prepared in compliance with Bureau of Prison standards. The court rejected plaintiff's claim that his free exercise rights were violated by communal, rather than individual, serving of grape juice for Shabbat services.

In Deleon v. Hamilton County Sheriff's Department, 2012 U.S. Dist. LEXIS 106653 (ED TN, July 31, 2012), a Tennessee federal district court dismissed an inmate's complaint that his free exercise rights were infringed when a correctional officer did not allow him to sign up for Sunday Religious Service some other unidentified programs for a period of time.

In Ramrattan v. New York City Department of Corrections, 2012 U.S. Dist. LEXIS 108603 (SD NY, Aug. 2, 2012), a New York federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that at Riker's Island his religion was listed incorrectly as "Other," there was no Hindu chaplain, his religious diet was not accommodated and he was prevented from observing several holy days.

Street Preachers Can Proceed Against Police For Interference With Their Activities

In two related decisions, Muniz v. City of San Antonio I, (WD TX, July 30, 2012), and  Muniz v. City of San Antonio II, (WD TX, July 30, 2012), a Texas federal district court permitted two Christian street preachers to proceed with several of their claims against the city of San Antonio and police officers for interfering with their preaching and handing out religious literature on public sidewalks at 10:00 and 10:30 at night. The cases involve two separate incidents, one of which resulted in one of the plaintiffs being arrested and held overnight.

More Settlements In ACLU's Suit Against Charter School For Promoting Islam

The ACLU of Minnesota announced yesterday that a Minnesota federal district court has approved settlement agreements reached with 3 leaders of the former public charter school, Tarek Ibn Ziyad Academy, in a lawsuit filed in 2009 by the ACLU charging the school with unconstitutionally promoting Islam. (See prior posting.) In the agreements, TiZA's former executive director Asad Zaman agreed to pay $17,500 back to the State of Minnesota and to drop $360,000 of claims he filed in bankruptcy court. Zaman, along with two other former TiZA leaders, Mahrous Kandil and Asif Rahman, also agreed to not serve as an officer, director or board member of any Minnesota public charter school for a period of three years, and Zaman agreed not to serve in other educational leadership capacities in charter schools as well. The ACLU's announcement contains links to the full text of the settlement agreements and court order dismissing the ACLU's claims against Zaman. The ACLU has previously reached settlements with other defendants in the action. MPR News reports on the settlement.

No Religious Liberty Violation In Holding Ministry CEO Liable For Organization's Unpaid Taxes

In Vaughn v. Internal Revenue Service, (ED NC, July 16, 2012) a North Carolina federal district court held that a bankruptcy judge did not violate the Free Exercise or Establishment Clause rights of Go Tell It Evangelistic Ministry (GTI), or its CEO and Chief Apostle Corletta Vaughn, when the bankruptcy court found Vaughn personally responsible for GTI's unpaid payroll taxes.  Appellants challenged the finding that Vaughn was liable for the tax payments under 26 USC 6672 as the person responsible for collecting them and paying them over to the government.The court said:

The bankruptcy court interpreted the [GTI] bylaws as authorizing the Chief Apostle to have decision making authority and supervision over business matters.... Appellants argue that this interpretation now forces the Chief Apostle of GTI to concern herself with secular affairs. Putting aside the fact that the plain language of the bylaws suggests that the Chief Apostle does concern herself with such affairs, the bankruptcy court did not base its decision on the bylaws alone. Contrarily, close examination of the bankruptcy court's order reveals that it placed great emphasis on what Ms. Vaughn actually did as the Chief Apostle of GTI.

Teacher's Discrimination Suit Dismissed On Ministerial Exception Doctrine

In a case similar on its facts to the Supreme Court's Hosanna-Tabor case, an Illinois federal district court applied the ministerial exception doctrine to dismiss an employment discrimination lawsuit filed by a former teacher at a Lutheran school. In Herzog v. St. Peter Lutheran Church, 2012 U.S. Dist. LEXIS 107229 (ND IL,Aug. 1, 2012), Janet Herzog began teaching in the Lutheran elementary school as a lay teacher in 1987, but subsequently took further course and became a "called teacher." She taught primarily secular subjects, but also held religion classes 4 days per week. The school terminated her employment, saying it was for budgetary reasons. Herzog however charged discrimination on the basis of age, sex and marital status.

President's Faith-Based Advisory Council Will Focus This Year On Human Trafficking

The White House reports that this year’s President’s Advisory Council on Faith-based and Neighborhood Partnerships held its first meeting on  July 30-31st at the White House.  After extensive briefings on the topic at the meetings, the members agreed that their focus this year will be on the issue of human trafficking.

British Court Says 10-Year Old Can Change Religions Over Objection of Her Mother

The Telegraph yesterday reported on an interesting decision by a British trial court judge on whether the 10 year old daughter of divorced parents may convert from Judaism to Christianity (her father's current religion) over the objection of her mother. Both parents were Jewish during the marriage, but after the breakdown of the marriage the father became a member of the Anglican Church.  The two children from the marriage attended church with the father on alternate weeks when the children were with him under a shared parenting arrangement. The daughter decided she wished to convert after attending the "New Wine" festival with her father.  In In the Matter of C a Child, (Romford Co., May 11, 2012), the court refused to prohibit the father from presenting the child for baptism. The judge wrote, in part:

I accept the evidence of the mother that in her eyes the baptism of a child has much greater significance in that it can be seen as demonstrating a rejection of her Jewish faith.... but it is very clear to me that neither the mother nor the grandparents have made any real effort to see this from the point of view of what is best for the child....

It may be some comfort both to the mother and to the grandparents if I set out my understanding of Jewish law on this topic although I stress that since I have received no expert evidence on this issue what follows has played no part in my decision making process. My understanding of Jewish law is that a person who is born a Jew cannot deprive himself of his Jewish status. Christian baptism does not have any effect on that status. The purported act of conversion to Christianity simply has no legal effect and C would therefore be free to resume her Jewish faith at any time if she wished to do so....

While the mother has the care of C she receives no instruction in the Jewish faith, she does not attend the synagogue on any regular basis and only experiences minimal exposure to Jewish religious practises in the home. I fully accept that by virtue of being born of as Jewish mother C has acquired a Jewish heritage which she will never lose, but that is fundamentally different to her acquiring a Jewish faith. I do not accept the implied assertion in the letter from Rabbi Brandon that these are one and the same thing.

In another interesting twist, the court barred the parents from showing a copy of the court's opinion to their child and instead required that the explanation given to the child take the form of a letter that the judge wrote to the child and attached to the decision.

6th Circuit: County's Ban of Creche On Road Median Violated Sponsor's Free Speech Rights

Satawa v. Macomb County Road Commission, (6th Cir., Aug. 1, 2012) involves a dispute over a creche that a family, each Christmas for over 60 years, has placed on a 60 foot wide median of a busy 4-lane road in Warren, Michigan. When the Freedom From Religion Foundation objected to the creche in 2008, the county ordered it removed. The county continued to deny a permit for erection of the creche, and one of the family members sued.  The court, reversing the district court in significant part (see prior posting), held that the county's action violated plaintiff's free speech and equal protection rights.  The road median here, which also contained benches, a plaque, displays and a gazebo, is (like a park) a traditional public forum.  The government may thus ban expression there only if it has a compelling interest. While compliance with the Establishment Clause would be a compelling interest, here the creche did not violate the Establishment Clause since it was a private expression of religious beliefs-- not endorsed by the government-- on property that had been opened to the public for speech. The court however rejected plaintiff's claim that in denying a permit for the creche the county itself was religiously motivated in violation of the Establishment Clause.

USCIRF Commissioners Harsher On Russia's Religious Liberty Record Than State Department

Two commissioners of the U.S. Commission on International Religious Freedom on Tuesday published an op-ed in the Moscow Times-- Russia's only daily English language  newspaper-- highly critical of Russia's policies on religious liberty. USCIRF Chair, Katrina Lantos Swett, and USCIRF Commissioner Robert George said in part:

[I]n at least one key area, religious freedom, Russia has not changed in many respects. This assessment should provoke serious discussion as the United States faces decisions about its relationship with its former Cold War foe....

Over the past decade, the Kremlin has exploited legitimate security concerns about violent religious extremism by restricting the rights of nonviolent religious minority members. Its major tool is an extremism law. Enacted in 2002, the law imposes sanctions on religious extremism, which it defines as promoting the "exclusivity, superiority, or inferiority of citizens" based on religion. The law now applies to peaceful actors and actions.....

Simply stated, security concerns aren't the sole driver of Russia's religious freedom abuses. All too often, security is a pretext for unacceptable religious repression. Authorities view certain groups, particularly those seeking converts, as threats to the country's religious and cultural identity as embodied in the Russian Orthodox Church's Moscow Patriarchate.

Their assessment appears harsher than the one appearing in the U.S. State Department's recently-released 2011 Report on International Religious Freedom (see prior posting). The State Department's section on the situation in Russia said in part:

The constitution provides for freedom of religion; however, other laws and policies restrict religious freedom by denying some groups legal status and misidentifying their literature as extremist.  In practice the government generally respected religious freedom, but some minority denominations continued to experience difficulties.

Austrian Justice Minister OKs Circumcisions

EJP reported yesterday that in Austria, the country's Justice Minister Beatrix Karl has written a letter to state officials in the province of Voralberg assuring doctors that they will not face prosecution for performing circumcision of boys, whether for religious or other reasons. Doctors needed the issue clarified after Voralberg's premier, Markus Wallner, in the wake of a German court decision banning circumcision of children for religious reasons (see prior posting), advised doctors against performing the procedure in Austria.

In Texas Supreme Court Primary, Incumbent Defeated By Advocate of Religious Displays On Public Property

In the Republican primary in Texas last Tuesday, incumbent state Supreme Court Justice David Medina lost his bid to run for re-election in a challenge by the Tea Party-backed candidate, John Devine.  The Southeast Texas Record reports that the final vote tally showed Devine receiving 53% of the vote. As previoiusly reported, in 1995 Devine was elected to be a state trial court judge after campaigning on a platform of placing Christianity back into government. He gained national attention when he fought to keep a painting of the 10 Commandments hanging in his court room. He also was at the center of an Establishment Clause case when he and his court reporter solicited private donations to refurbish a courthouse grounds religious-themed monument that included display of a Bible. In the 1980's Devine was known as an anti-abortion activist.  Medina, who had been appointed in 2004 by Gov. Rick Perry, was backed by the Republican establishment and was strongly favored in a poll of the Texas State Bar. The Fort Worth Star Telegram, reviewing the candidates earlier this year, reported that Medina ha been found by the state ethics commission in 2009 to have improperly used some of his campaign funds for personal commuting expenses.  Also he and his wife had initially been indicted in connection with a fire at their home in 2007, but the charges were then dropped.

In Canada, Suit Filed Over Opening Council Meetings With Lord's Prayer

Backed by the advocacy group Secular Ontario, in Canada on Monday a resident of Grey County, Ontario filed a lawsuit seeking to require the Grey County Council to end its practice of opening its sessions with the recitation of the Lord's Prayer. According to the National Post, Secular Ontario has written 18 cities, towns and counties seeking to end use of the Lord's Prayer to open their meetings. Seeking $5000 in damages and an order ending the practice, plaintiff Peter Ferguson says that the use of the opening prayer violates his freedom of conscience and religion protected by the Charter of Rights and Freedoms. Over a month ago, a similar challenge was filed by another plaintiff against the Petersborough (ON) City Council.

Indiana High Court Remands Church Property Case For Trial On Implied Trust Issue

In Presbytery of Ohio Valley, Inc. v. OPC, Inc., (IN Sup. Ct., July 31, 2012), the Indiana Supreme Court, in a 3-2 decision, held that the Presbyterian Church (USA) had failed to show that an express trust attached to property of Olivet Presbyterian Church, a congregation that broke away from the parent body over doctrinal differences.  However, the court remanded the case for trial on the issue of whether an implied resulting trust on the congregation's property had been created by Olivet remaining a member of PC(USA) for 25 years after the parent body placed language in its governing documents (the Book of Order) providing that local church property was to be held in trust for PC(USA). In an opinion written by Chief Justice Dickson, the majority adopted the "neutral principles of law" approach for resolving all church property disputes in Indiana. Justices Sullivan and Massa, in a brief dissenting opinion, agreed with the Court of Appeals decision-- which held that the congregation was bound by PC(USA)'s property trust clause. [Thanks to Michael E. DiRienzo for the lead.]

Grocery Store's Customer Seeks Religious Accommodation of Racist Views

The Big Sandy & Hawkins (TX) Journal yesterday reported on a religious accommodation lawsuit against a grocery store filed pro se in April by a customer who objected on religious grounds to his purchases being bagged by an African-American employee. When this happened a second time, the store owner called the police who issued plaintiff, DeWitt Thomas, a criminal trespass warning. Thomas says his religion is "Vedism Braminism" which he says prevents him from "striking hands" with an "Untouchable." Store owner Keith Langston says that he will not tolerate racism and that Thomas frightened his employees.