Shooter At Family Research Council Was Supporter of LGBT Rights

The Washington Post report today on the 28-year old man charged with shooting and wounding a security guard at the D.C. office of the Family Research Council suggests that he was motivated by the Council's opposition to expansion of rights for gays and lesbians.  According to the FBI affidavit (full text) seeking to show probable cause to charge Floyd Lee Corkins II, the shooter told the guard, before opening fire, "I don't like your politics."  Corkins' backpack contained 15 sandwiches from Chick-fil-A, whose president recently made highly publicized statements in opposition to same-sex marriage.  Corkins' parents told investigators that Corkins has strong opinions about those he believes do not treat homosexuals in a fair manner. Corkins has been volunteering at a community center that serves LGBT clients.

1st Circuit Upholds Monastery's Copyright Infringement Claims As To Translations Of Religious Works

In Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory of Denver, Colorado, (1st Cir., Aug. 2, 2012), the U.S. 1st Circuit Court of Appeals affirmed a Massachusetts district court's copyright infringement judgment in favor of  an Eastern Orthodox monastic order. (See prior posting.)  Holy Transfiguration Monastery translated a number of ancient religious texts.  Archbishop Gregory, a former member of the Monastery, left it and formed his own monastery, the Dormition Skete, in Colorado. The Archbishop also created a website on which he posted 7 of the translations that had been produced b y Holy Transfiguration Monastery. An earlier lawsuit over the postings ended with a settlement agreement. However documents remained on the Archbishop's website, and the present suit-- for breach of contract and copyright infringement followed. The Second Circuit rejected a number of defenses raised by the Archbishop-- including contentions Monastery's Works were made for hire for the Russian Orthodox Church Outside Russia (ROCOR); that they are in the public domain; that the materials are not copyrightable; a fair use defense and a claim that the dispute was a matter of religious law outside the jurisdiction of civil courts.

Particularly at issue was a provision in the Monastic Statutes for Monasteries of ROCOR calling for transfer of monastery property to ROCOR in case of closing or liquidation of a monastery. The Archbishop claimed that this provision was triggered by the Monastery's ending of its affiliation with ROCOR.  The 1st Circuit said:

A review of the record confirms that we may apply the Monastic Statutes' plain terms without treading upon religious doctrine, church governance, and ecclesiastical laws.... Neutrally applying this plain language, we conclude that the Archbishop's position as to ROCOR's ownership holds little water.

Ft. Hood Shooter's Trial Stayed While Appeals Court Considers Forced Shaving of Defendant

The United States Court of Appeals for the Armed Forces yesterday issued an order staying proceedings in the trial of mass shooter Maj. Nidal Hasan.  According to a release from the Fort Hood Public Affairs Office, the stay was imposed while the appeals court decides whether or not the presiding judge in the military trial can order Hasan, who has grown a beard for religious reasons, to be forcibly shaved. (See prior posting.) Earlier yesterday, according to the Los Angeles Times, Hasan's lawyers told the trial court that Hasan wanted to plead guilty for religious reasons to take responsibility for his actions. Military judge Col. Gregory Gross said he was not allowed to accept a guilty plea in a capital case, but that Hasan's lawyers could still enter the plea.

UPDATE: Here is the full text of the Court of Appeals order.  It calls for the military court trial judge to respond by Aug. 22. The full text of Hasan's petition to the appeals court, which includes Hasan's legal arguments in support of the petition, is also available online.  It recites in part that "Petitioner is a practicing Muslim and has recently had a premonition that his death is imminent.  He does not wish to die without a beard as he believes not having a beard is a sin." The Los Angeles Times has further coverage.

Hungary's Ombudsman Wants Court Review Of Law On Churches

BosNewsLife reported yesterday that in Hungary, the country's Ombudsman who is elected by Parliament to protect fundamental civil rights is asking the Constitutional Court to overturn the country's recently enacted Law on the Right to Freedom of Conscience and Religion, and on Churches, Religions and Religious Community. The Constitutional Court struck down an earlier version of the law last year on procedural grounds. (See prior posting.) The law recognizes only 14 religious faiths, instead of the 300 that have previously recognized, and permits others to apply to Parliament for recognition if they have been operating in Hungary for at least 20 years. Under this provision Parliament has recognized 18 additional groups. The Ombudsman contends that the provision in the law that gives Parliament the unreviewable power to decide which groups will be recognized is "contrary to the principle of separation of power, to the right to fair procedure and to the right to legal remedy."  Formal recognition gives churches tax-free status and access to government support.  It also authorizes them to collect contributions during services and do pastoral work in jails and hospitals.

11th Circuit Orders Hearing On Standing In 10 Commandments Case

In American Civil Liberties Union of Florida, Inc. v. Dixie County Florida, (11th Cir., Aug. 15, 2012), the U.S. 11th Circuit Court of Appeals remanded to the district court for a hearing on standing a case challenging the constitutionality of a Ten Commandments statue near the entrance to the Dixie County, Florida courthouse. The individual (identified as John Doe) through whom the ACLU claims organizational standing is a North Carolina resident who was offended when he saw the statue during a trip to the courthouse to check out certain real estate records. At issue was whether the statue was the cause of  Doe's not moving ahead to purchase property in the county. Judge Edmondson dissented in part, arguing that the case should be remanded for immediate dismissal, rather than for a further hearing on standing. The Wall Street Journal reports on the decision.

Islamists Launch Online Attacks Against 2 Tunisian Olympians

AP reported yesterday that in Tunisia, Islamic fundamentalists are using social media in a campaign against two Tunisian Olympic athletes. Islamists on social media networks are calling on the Tunisian government to strip steeplechase silver medalist Habiba Ghribi of her Tunisian citizenship because her running outfit was too revealing.  Ghribi is first Tunisian woman to win an Olympic medal.   Separately, the Islamist group Ansar al Chariaa is conducting a Facebook campaign against swimmer Oussama Mellouli because he drank juice before racing during Ramadan. Mellouli won a gold and a bronze medal.

State Secrets Privilege Leads To Dismissal Of Suit For Spying On Mosques

The Los Angeles Times reports that yesterday a California federal district court dismissed a class action lawsuit that had been filed against the federal government and the FBI for planting an informant in Orange County, California mosques. The court accepted the government's assertion of the state secrets privilege-- that national security would be endangered by disclosing targets in counter-terrorism investigations. The court, however, permitted claims under the Foreign Intelligence Surveillance Act against individual FBI agents and supervisors to proceed.

UPDATE: The text of the court's opinion in Fazaga v. FBI, 2012 U.S. Dist. LEXIS 116723 (SD CA, Aug. 14, 2012) is now available.

Court Can Hear Clergyman's Claim For Unpaid Salary Due

In Crymes v. Grace Hope Presbyterian Church, Inc., (KY App., Aug. 10, 2012), a Kentucky state appeals court held that the 1st Amendment does not prevent a court from hearing a suit for unpaid salary and benefits brought by a Presbyterian pastor who was fired from his position.  The court said:

It is undisputed that Crymes is not contesting Grace Hope's termination of him as pastor. Rather, Crymes is merely seeking compensation for unpaid salary and benefits allegedly owed to him for work performed prior to his termination.... A claim for unpaid wages and benefits for work previously performed under an employment contract is not ecclesiastical and is reviewable by the court.

First Amendment Center reports on the decision.

Passenger Sues El Al After Orthodox Jewish Man Takes Her Seat To Avoid Sitting Next To A Woman

A Florida woman is suing Israel's El Al airlines, apparently in an Israeli court, for gender discrimination after a flight steward on her flight to Israel moved her to a less desirable seat further back in the plane.  As reported by Israel Hayom, Digital Journal and Arutz Sheva, Debra Ryder boarded a flight in New York and found that her assigned seat was already occupied by an ultra-Orthodox Jewish man who had moved to it to avoid sitting beside a woman passenger who was next to him in his original seat.  The man refused to move back, and a crew member asked Ryder to instead take the man's assigned seat so the flight could take off.  Ryder had chosen her original seat so she could be near a rest room to facilitate her taking medications. The seat change also resulted in her not getting the vegetarian meal she had pre-ordered. Ryder is asking for NIS 50,000 ($12,500 US) in damages .

Pastor Convicted Of Aiding Parental Kidnapping By Woman Ending Her Civil Union

Yesterday, a federal court jury in Burlington, Vermont found Kenneth L. Miller, a Beachy Amish-Mennonite pastor from Virginia, guilty of abetting an international parental kidnapping. The New York Times reports on the case in which Lisa Miller (no relation to the pastor), who had been in a Vermont civil union with another woman, sought to avoid the court-ordered child visitation rights awarded to her former partner by fleeing with her daughter first to Virginia (where she declared herself a born-again Christian), then to Canada and finally to Nicaragua. Pastor Miller helped the mother arrange to fly from Canada to Nicaragua and obtain shelter from missionaries in Nicaragua. (See prior posting.)

Pope's Butler Formally Indicted In Document Leak

Radio Vatican reported yesterday that Pope Benedict XVI's former butler, Paolo Gabriele, has been formally charged with, and will stand trial for, grand theft in the leaking of private documents about the Pope and other Curia officials to the press. The full text of the indictment in Italian is available online. Apparently Gabriele has confessed to furnishing the documents to Italian Journalist Gianluigi Nuzzi, saying that he believed the Pope was ill-informed of evil and corruption in the church. (See prior related posting.)

NYC Informed Consent Proposal To Controversial Circumcision Procedure Draws Opposition

The Forward reports today on the growing opposition in the ultra-Orthodox Jewish community to a proposed rule (full text) published last month by the New York City Health Department that would require written informed consent by parents to a controversial ritual circumcision method.  The procedure, known as metzitzah b’peh, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. The practice can pass dangerous herpes infection to the child. The proposed regulation would require that parents sign a form to be developed by the Health Department whenever oral suction is to be used in a circumcision of a boy under one year of age. While signing of the consent form does not violate Jewish law, but ultra-Orthodox rabbinic leaders object to the health department's proposed form that describes the procedure as dangerous.  A Health Department vote on the proposal is scheduled for Sept. 13. (See prior related posting.)

RLUIPA Claim For Delay In Granting Zoning Variance Can Move Ahead

In Israelite Church of God in Jesus Christ v. City of Hackensack, (D NJ, Aug. 9, 2012), a New Jersey federal district court held that plaintiff church has made out a prima facie case under the Religious Land Use and Institutionalized Persons Act.  The church alleged that the city of Hackensack delayed for 4 years its eventual approval of the church's application for a variance that the church sought so it could use a building it rented as a school to train priests. (See prior related posting.) The court also refused to dismiss claims for monetary damages under RLUIPA against two city officials in their personal and official capacities, as well as 1st Amendment claims against the two officials.

Fired Muslim Employee Sues Disney For Barring Her Hijab

The ACLU of Southern California announced yesterday that it has filed suit in a California federal district court against Walt Disney Corp. on behalf of a former employee who alleges religious harassment and refusal to accommodate her Muslim religious practice of wearing a hijab (headscarf).  The complaint (full text) in Boudlal v. Walt Disney Corp., (CD CA, filed 8/13/2012), alleges claims under Title VII of the 1964 federal Civil Rights Act, California's Fair Employment and Housing Act, and common law claims for wrongful termination, negligent retention and supervision and intentional infliction of emotional distress. The suit claims that 28-year old Imane Boudlal-- who worked at Storytellers Café at Disney’s California Adventure-- was told that her hijab would violate the Disney "look" policy for employees. She offered to wear a scarf with a Disney logo to match her uniform.  However management insisted that she either wear a large fedora on top of her hijab or work in a back area out of view of customers. She refused and was fired. The suit also alleges various incidents of offensive anti-Muslim and anti-Arab comments by Boudlal's co-workers.

Arizona Court Dismisses Challenge To State Day of Prayer For Lack of Standing

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ Super. Ct., Aug. 7, 2012), an Arizona trial court judge dismissed a constitutional challenge to Arizona Governor Jan Brewer's proclamation of an annual Arizona Day of Prayer.  According to the court:

In the absence of a particularized and concrete injury suffered by Plaintiffs, their claims cannot go forward. Plaintiffs have not alleged that they filed their claims in their capacity as taxpayers, nor have they shown a direct injury, pecuniary or otherwise.

Gov. Brewer issued a statement (full text) applauding the decision which she called "little more than another sad attempt to stifle an American tradition."

Saudi Arabia Building All-Women's Industrial City To Comply With Sharia

In order to both comply with strict interpretations of Sharia law and also increase participation of women in its work force, Saudi Arabia plans to build an industrial city for female workers.  Today's Los Angeles Times and International Business Times report that the city, which will be built within Hofuf, will have sections and production halls reserved for women within factories, and will be located near residential neighborhoods to facilitate women getting from home to work. The new city is expected to attract the equivalent of $133.3 million (US) in investments and create 5,000 jobs in the textiles, pharmaceuticals and food processing industries. Additional similar cities are planned.

Advocacy Group Sends US Schools Publication On Right of Religious Expression

Liberty Counsel announced last week that it is sending a copy of its publication Patriot's Handbook of Religious Freedom in Public Schools to every school in the United States. It says it is completing delivery of 99,750 copies around the country. According to the press release: "This booklet clarifies the rights of students to pray, form Bible clubs, and engage in religious expression in public schools, including holiday celebrations and the rights of teachers, parents, and guardians." According to God Discussion, Matt Staver, chairman of Liberty Counsel, says that he believes public school teachers lack information on religious freedoms.

Recent Articles and Forthcoming Book of Interest

From SSRN:

• David R. Upham, Pope Pius Xi’S Extraordinary — But Undeserved — Praise of the American Supreme Court, (July 31, 2012).
• Lucas Swaine, Freedom of Thought, Religion, and Liberal Neutrality, (August 4, 2012).
• C.G. Bateman, Sovereignty's Missing Moral Imperative, (International Zeitschrift 8.2 (May 2012): 30-41).
• Nelson Tebbe, Government Endorsement and Disparagement, (Brooklyn Law School, Legal Studies Paper No. 287, Aug. 6, 2012).
• Meghan J. Ryan, Death and Rehabilitation, (SMU Dedman School of Law Legal Studies Research Paper, Aug. 11, 2012).
• Carlos Martínez de Aguirre, Is 'Living Together, Loving Each Other' Enough for Law? (Reflections on Some 'Brave New Families'), (International Journal of the Jurisprudence of the Family, Forthcoming).
• Jeremiah Egger, Glucksberg, Lawrence, and the Decline of Loving's Marriage Precedent, (Virginia Law Review, Vol. 98, December 2012, Forthcoming).
• Ursula Hackett, Republicanism, Catholicism and the West: Explaining the Strength of Religious School Aid Prohibitions, (APSA 2012 Annual Meeting Paper).
• Farrah Ahmed and S. Luk, How Religious Arbitration Could Enhance Personal Autonomy, (Oxford Journal of Law and Religion, Forthcoming).
• Ebrahim Moosa, Ahsan Arozullah and Aasim I. Padela, Brain Death in Islamic Ethico-Legal Deliberation: Challenges for Applied Islamic Bioethics, (December 13, 2011).
• Steven F. Friedell, The Recent Transformation of Medical Liability in Jewish Law, (August 3, 2012).

Forthcoming book:

• Jacques Berlinerblau, How to Be Secular: A Call to Arms for Religious Freedom, (Houghton Mifflin Harcourt, September 11, 2012).

Nominations For ABA Journal's Top 100 Legal Blogs Now Open

The American Bar Association Journal announced last week that it is working on its annual list of the 100 best legal blogs, and invites blog readers to use the form at this link:

to tell us about a blawg—not your own—that you read regularly and think other lawyers should know about. Or if you don't have particular blawgs in mind but think blawgs from a certain practice areas should be represented in the Blawg 100, you can use this form to let us know which ones. If there is more than one blawg you want to support, feel free to send us additional amici through the form. We may include some of the best comments in our Blawg 100 coverage. But keep your remarks pithy—you have a 500-character limit. Friend-of-the-blawg briefs are due no later than Sept. 7, 2012.

The ABA has also urged us bloggers to tell readers about the opportunity to send messages on behalf of their favorite legal blogs. Religion Clause has made the top 100 list four out of the last five years. I invite any readers who think it belongs there again-- or who have a different favorite legal blog-- to participate in the ABA's selection process.

Recent Prisoner Free Exercise Cases

In Hennis v. Tedrow, (3d Cir., Aug. 7, 2012), the 3rd Circuit upheld dismissal of an inmate's claim that his rights were violated when he was told to cut his dreadlocks (but never in fact forced to do so) and was not provided his religious vegetarian meals during a prison lock down.

In Burton v. Clark, 2012 U.S. Dist. LEXIS 109106 (ED CA, Aug. 2, 2012), a California federal magistrate judge recommended dismissing free exercise and RLUIPA claims by an inmate whose request for a special religious diet was refused.  He sought a vegetarian diet free of excess beans, butter, margarine, peanut butter, and cheese, and claimed that the food needed to be blessed by a rabbi to make it kosher.

In Hull v. Cox, 2012 U.S. Dist. LEXIS 109272 (D NV, July 27, 2012), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 109273, June 6, 2012) and dismissed for failure to exhaust administrative remedies an inmate's complaint that prison officials have refused to recognize his Community of Christ religion and have not scheduled a time slot for its services.

In Gibson v. Campbell, 2012 U.S. Dist. LEXIS 111050 (D CO, Aug. 8, 2012), a Colorado federal district court agreed with a federal magistrate judge that an inmate's free exercise rights weer not infringed when authorities prohibited him from having an audio book player in his cell.

In Lemcool v. Poole, 2012 U.S. Dist. LEXIS 111131 (ND FL, Aug. 8, 2012), a Florida federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 111132, July 9, 2012), and dismissed as moot a Wiccan inmate's complaint about the inability to schedule Sabbat and Esbats and holy day worship. A change in policy now permits inmates to engage in religious exercise under staff supervision, even if an outside volunteer is unable to be present.

In Chance v. TDCJ, 2012 U.S. Dist. LEXIS 111214 (ED TX, Aug. 8, 2012), a federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 111230, July 9, 2012) and dismissed complaints of a Native American inmate regarding the adequacy of Native American religious ceremonies that are offered.  He objected to the lack of weekly group teaching ceremonies, and complained that smudging and pipe ceremonies are held only monthly with only the chaplain smoking the pipe and only water smudging. He was also denied the right to carry a lock of his deceased parents' hair in a pouch.

In Wesley v. City of New York, (SD NY, Aug. 10, 2012), a New York federal district court rejected a Muslim inmate's claim that he should be furnished Halal food prepared in accordance with his interpretation of Halal. He objected to the food that the Department of Corrections served under its religious meal program because Halal food trays were washed together with non-Halal trays.