Contempt Charges Reinstated, But Penalty Purged, For Muslim Defendant Who Refused To Stand

As previously reported, in June the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Somali Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed. The appeals court ordered the trial court to consider whether under the Religious Freedom Restoration Act, this was the least restrictive means to keep order in the courtroom. Now, according to AP, the federal district court has reinstated all the contempt charges against Amina Farah Ali, but purged her 100-day sentence. Judge Michael Davis said that he took extra precautions to ensure order because of the publicity surrounding the trial. He reached out to elders in the Somali community to help keep order in the spectator-packed courtroom.  Rules were posted in Somali as well as English, and a room was set aside for Muslims who wanted to pray. On the third day of her trial, Ali began to stand when the court opened and closed, after Muslim clerics visited her in jail and told her she was allowed to stand if she is in a difficult position. In the case Ali is charged with soliciting charitable donations which were then routed to the terrorist group, al-Shabab.

UPDATE: The full text of the court's opinion is available at United States v. Ali, 2012 U.S. Dist. LEXIS 133766 (D MN, Sept. 19, 2012).

Indian Court Bars Sale Of Chicken And Fish During Jain Festival

In India, Jains are celebrating a 9-day festival of Paryushana, ending today.  As reported by Express India and Times of India, in 2008 India's Supreme Court ordered all slaughter houses and meat shops closed during the festival in deference to the Jain community.  Yesterday, six traders asked the Gujarat High Court to allow them to sell chicken and fish (as well as meat already in stock), arguing that fish and chicken did not come within the Supreme Court's prohibition.  A single judge granted their request. However after a three hour hearing on the same day, a division bench made up of two judges reversed the interim relief granted by the single judge, holding that sale of chicken and fish would violate the spirit of the Supreme Court order and would hurt Jains' religious sentiments.

Missouri College Sues Over ACA Contraception Coverage Mandate

Another lawsuit has been filed challenging the Affordable Care Act mandate requiring most health insurance policies to cover contraceptive services. Timed to be filed on Constitution Day, the suit was brought by Missouri's College of the Ozarks, a college that defines one of its goals as fostering the Christian faith. The complaint (full text) in School of the Ozarks, Inc. v. U.S. Department of Health and Human Services, (WD MO, filed 9/17/2012), says that the College's sincerely held religious beliefs preclude it from providing coverage for elective abortion services, and it considers the FDA approved contraceptives Plan B and Ella to be abortifacients. The suit claims that the mandate violates the College's 1st and 5th Amendment rights, the Religious Freedom Restoration Act, and the Administrative Procedure Act. The Springfield (MO) News-Leader reports on the press conference held by College president Jerry Davis announcing the filing of the lawsuit. Ozarks First reprints the full text of the College's press release on the lawsuit.

Massachusetts Diocese Sued For Refusal To Sell Land To Gay Developers

The Boston Globe and WBUR News reported last week on a sexual orientation discrimination lawsuit filed in Worcester, Massachusetts Superior Court against the Catholic Diocese of Worcester.  James Fairbanks and Alain Beret, a same-sex married couple who are real estate developers, were negotiating to purchase an old mansion owned by the diocese, planning to turn it into a hotel.  Plaintiffs allege that the diocese cut off negotiations when they realized that the planned hotel might host same-sex marriages. Monsignor Thomas Sullivan says that negotiations broke down because the developers could not secure financing for their first offer, and their second offer was far too low.  The developers, however, cite e-mails that were inadvertently forwarded to them in which Sullivan said that he was cutting off negotiations because of the possibility of gay marriages there. Sullivan admits that the Church will not sell properties where masses have been performed for uses the Church deems inappropriate. Massachusetts law bars discrimination on the basis of sexual orientation, among others, in the sale of real estate.

The mansion at issue, now know as Oakhurst, was used by the Church beginning in the 1970's as a rehabilitation center for pedophile priests, called the House of Affirmation. However, as reported in 2005 by La Sallette Journey blog, it was closed in a financial scandal in the late 1980's amid claims that the priest who had founded it was actually using it for financial gain and to create a child sex ring.

Jury Awards $280,000 In Religious Employment Discrimination Suit

The Albuquerque (NM) Journal today reported on federal court jury verdict handed down last month in a New Mexico federal district court against the Albuquerque Bernalillo County Water Utility Authority awarding $180,000 in actual damages and $100,000 in punitive damages to an employee who claimed he was denied promotion because of his religious beliefs. James Chávez, a senior engineer, said he was passed over for promotion 17 times since 2006 because he resisted the religious proselytizing of his supervisor, John Stomp.  The suit charged that Stomp, a devoutly religious Christian, tried to get Chavez to attend his church and on one occasion gave him a Bible. The jury, however, rejected Chavez's other claim alleging racial discrimination claim.

President Obama's Rosh Hashanah Greetings Issued Last Week

The Jewish High Holidays began Sunday night with Rosh Hashanah, and continue through Yom Kippur next Wednesday.  Last week (Sept. 13), President Obama issued Rosh Hashanah greetings from himself and the First Lady. (Full text).He said in part:

At a time when our public discourse can too often seem harsh; when society too often focuses on what divides us instead of what unites us; I hope that Americans of all faiths can take this opportunity to reach out to those who are less fortunate; to be tolerant of our neighbors; and to recognize ourselves in one another. 

Recent Articles of Interest

From SSRN:

• Stefano Vinci, The Diffussion of the Roman-Canonical Procedure in Europe: The Liber Belial between Canon Law and Roman Law Sources, (Max Planck Institute for European Legal History No. 2012-03, 2012).
• Julio C. Colon, In Defense of Islamic Finance: Three Landmark U.S. Cases, (September 10, 2012).
• Thomas C. Berg, Can State-Sponsored Religious Symbols Promote Religious Liberty?, (Journal of Catholic Legal Studies, 2013).
• Sahar F. Aziz, Protecting Rights as a Counterterrorism Tool: The Case of American Muslims, (September 10, 2012).
• Amanda Mauriello Baker, A Higher Authority: Judicial Review of Religious Arbitration, (37 Vermont L. Rev., December 2012, Forthcoming).
• Anver M. Emon, On Sovereignties in Islamic Legal History, (Middle East Law and Governance 4, Numbers 2-3, 2012).
• Iftikhar Hussian Bhat, Status and Rights of Women Under Islamic Law, (August 15, 2012).

From SmartCILP:

• Justin Butterfield, Hiram Sasser and Reed Smith, The Parsonage Exemption Deserves Broad Protection, 16 Texas Review of Law & Politics 251-273 (2012).
• Nicholas P. Cafardi, Saving the Preachers: The Tax Code's Prohibition on Church Electioneering, [Abstract], 50 Duquesne Law Review 503-544 (2012).
• Douglas Laycock, Hosanna-Tabor and the Ministerial Exception, 35 Harvard Journal of Law & Public Policy 839-862 (2012).
• William P. Marshall and Gene R. Nichol, Not a Winn-Win: Misconstruing Standing and the Establishment Clause, 2011 Supreme Court Review 215-252.
• Michael W. McConnell, Reflections on Hosanna-Tabor, 35 Harvard Journal of Law & Public Policy 821-837 (2012).
• Kevin M. Lemley, A Proposal to Expand the Religious Services Exemption Under the Copyright Act, 34 University of Arkansas Little Rock Law Review 481-506 (2012).
• Jeremy G. Mallory, "Well, but that System Has Failed Entirely": Using Theological and Philosophical Methods to Resolve Jurisprudential Confusion Over Legislative Prayer, 33 Whittier Law Review 377-409 (2012).
• Lisa Shaw Roy, The Evangelical Footprint, 2011 Michigan State Law Review 1235-1291.
• Amelia J. Uelmen, Bob Drinan In History. (Reviewing Raymond A. Schroth, S.J., Bob Drinan: The Controversial Life of the First Catholic Priest Elected to Congress.), [Abstract], 25 Georgetown Journal of Legal Ethics 341-363 (2012).
• Conference: The Foundation of Human Rights: Catholic Contributions, Part I. Preface by Matthew H. Brown; articles by Robert L. Fastiggi, Riccardo Pozzo, Gerry Rauch, Robert John Araujo, Victor M. Salas, Jr., Steven J. Brust, Patricia Pintado, Michael Pakaluk, Cecilia Castillo and Thomas P. Scheck. 10 Ave Maria Law Review 261-415 (2012).

[Updated]

Recent Prisoner Free Exercise Cases

In Strother v. Myers, 2012 U.S. Dist. LEXIS 126896 (ED CA, Sept. 6, 2012), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's complaint seeking an injunction and $1 million in damages in a challenge to prison policies governing religious headgear, religious oils, and use of the chapel.

In Harrison v. Tarnoff, 2012 U.S. Dist. LEXIS 127664 (ED CA, Sept. 6, 2012), a California federal magistrate judge dismissed, with leave to amend, an inmate's complaint that he was not allowed to have a religious name change to obtain a Muslim name.

In Furnace v. Giurbino, 2012 U.S. Dist. LEXIS 128659 (ED CA, Sept. 5, 2012), a California federal magistrate judge recommended allowing an inmate who practices Shetaut Neter to proceed with his claim that he is being denied his required religious vegetarian diet. The court held that the claim is not barred by res judicata since a prior suit by plaintiff involved a different prison.

In Taylor v. Williamson, 2012 U.S. Dist. LEXIS 129041 (CD IL, Sept. 11, 2012), an Illinois federal district court denied motions for summary judgment and scheduled a jury trial in a case in which an inmate of the Hebrew Israelite religion complained that his requests for a vegetarian or kosher diet have been denied.

In Totten v. Caldwell, 2012 U.S. Dist. LEXIS 129104 (ED MI, Sept. 11, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 129124, July 31, 2012) and permitted a Muslim inmate to proceed against the prison chaplain for failing to schedule the Eid-al-Adha prayer service. However the court dismissed a lengthy list of other claims against several defendants claiming a variety of interferences with plaintiff's ability to practice his Muslim religion.

In Neasman v. Swarthout, 2012 U.S. Dist. LEXIS 130292 (ED CA, Sept. 12, 2012), a California federal magistrate judge, in recommending denial of habeas corpus, rejected an inmate's claim that the parole board required him to participate in a faith based substance abuse program.

In Robinson v. Parker, 2012 U.S. Dist. LEXIS 129040 (WD KY, Sept. 11, 2012), a Kentucky federal district court, while dismissing several claims, permitted a member of the Moorish Science Temple of American Islamism Faith to proceed with his claim under RLUIPA for injunctive relief based on the prison's refusal to permit him, for religious reasons, to use "El" as part of his name in making records requests and the like.

Smoking Ordinance Does Not Violate Free Exercise Rights

In Porter v. Bates, 2012 U.S. Dist. LEXIS 129394 (ND CA, Sept. 11, 2012), a California federal district judge dismissed claims that a Berkeley city ordinance banning smoking within 25 feet of any building open to the public (and 50 feet of health care facilities) violates plaintiff's right to the free exercise of religion. Plaintiff alleged that  a citation issued to him for violating the ordinance "banned specific expressions of Indigenous Faith, Culture and Ancient Social Custom from designated Capitalist Preserves . . . ."  The court held that the ordinance is a neutral law of general applicability and, further, plaintiff failed to allege what is his "indigenous faith" and how smoking furthers that faith.

Fraternity House Is Not A Monastery For Zoning Purposes

In Myers v. City of Chicago, (ND IL, Sept. 12, 2012), and Illinois federal district court rejected an equal protection claim by plaintiff who purchased a house on Chicago's North Shore Avenue intending to rent it for use as a fraternity house to Sigma Pi Fraternity.  However, fraternities and sororities in this area require a special use permit-- except for those located in the area before 1970 zoning changes established this requirement.  Plaintiff argued that the city should treat his proposed use of the house as a "monastery"-- a permitted use in the area-- because of the Sigma Pi's mission statement: "In the Service of God and Man."  The court concluded:

No matter how closely Sigma Pi hews to the letter of its motto, Myers has fallen far short of proving that the Sigma Pi fraternity brothers are actual Religious Brothers, that is, in the words of the ordinance, "persons (such as nuns or monks) under religious vows." The defendants’ interpretation of this language to exclude fraternity houses therefore passes the rational-basis test.

Courthouse News Service reports on the decision.

EEOC Posts Web Page On Employment Discrimination Against Muslims and Sikhs

The federal Equal Employment Opportunity Commission has added a page to its website titled "What You Should Know about the EEOC and Religious and National Origin Discrimination Involving the Muslim, Sikh, Arab, Middle Eastern and South Asian Communities." It says that the EEOC "

has filed nearly 90 lawsuits alleging religious and national origin discrimination involving the Muslim, Sikh, Arab, Middle Eastern and South Asian communities, many of which involved harassment.  The alleged harassment included taunts such as "Saddam Hussein," "camel eater," and "terrorist."

The web page links to summaries of many of the suits, as well as to fact sheets on religious and ethnic discrimination.

Suit Challenges 10 Commandments Monument Outside High School

The Freedom From Religion Foundation announced yesterday that it (along with two students and their parents) has filed a federal lawsuit challenging the constitutionality of a 6-foot tall Ten Commandments monument that has been displayed for decades in front of New Kensington, Pennsylvania's Valley High School.  The monument is one of the many around the country that were donated by the Fraternal Order of Eagles.  The complaint (full text) in Freedom From Religion Foundation, Inc. v. New Kensington-Arnold School District, (WD PA, filed 9/14/2012) claims that the display lacks any secular purpose. The Board of Education president, on his Facebook page, has called FFRF's claim "a frivolous lawsuit and request by a radical group."

Virginia Settlement Will Allow Religiously Mandated 1/4-Inch Beards In Prisons

AP reports that the Virginia Department of Corrections this week entered a settlement agreement with Sunni Muslim inmate William Couch who sued seeking to wear a beard for religious reasons. (The case has been up to the 4th Circuit and is now on remand.)  Under the settlement, the prison system will change its rules so that all inmates who wish to grow a beard for religious reasons will be permitted to have facial hair up to 1/4 inch in length. However, the inmate will need to have a second identification photo taken-- one showing him with a beard and one without. The inmate will be charged $2 for taking the photo, an amount that plaintiff's attorney says is too high for inmates who earn only 35 cents per hour for prison work. The new policy requires facial hair, if worn, to cover the entire facial hair area and contain no shapes or designs-- so goatees are prohibited. The prison barber shop will use a 1/4 trimmer on beards to assure compliance with length requirements.

Suit Challenging Gifts To Legion of Christ Dismissed on Standing Grounds, But Judge Says Questions Remain

In Dauray v. Estate of Gabrielle D. Mee, (RI Super. Ct., Sept. 7, 2012), a Rhode Island Superior Court held that Mary Dauray, the niece of devout Catholic Gabrielle D. Mee, lacks standing in the three cases she filed to challenge Mee's extensive gifts to the scandal-ridden conservative Catholic order, Legion of Christ.  In the suits, Dauray claimed that Mee's will was executed under undue influence, fraud and mistake in the inducement; that Mee was fraudulently induced into giving $60 million in gifts during her lifetime to Legion of Christ; and that the Bank involved breached its duties as trustee of multiple trusts. The court went on to hold however that if plaintiff had standing, it would not have dismissed the undue influence, fraud and breach of fiduciary duty claims because genuine issues of material fact remain.  National Catholic Reporter reports on the decision.

NYC Approves Informed Consent Requirement For Controversial Circumcision Procedure; Court Challenge Planned

The New York Times reports that yesterday the 9-member New York City Board of Health voted unanimously to approve a proposed rule that requires informed consent from a parent or guardian in a Jewish ritual circumcision where a mohel will use the controversial procedure known as metzitzah b’peh.  The procedure, whose use is limited to certain Orthodox Jewish ritual circumcisions, involves use of the mohel's mouth-- rather than the more commonly used sterile pipette-- to suction blood from the circumcision site. Parents or guardians will be required to sign a consent that warns of the risks involved in the procedure, including possible passing on of herpes simplex infection. (See prior related posting.) Some Board members thought they should go further and ban the oral suction procedure completely.  According to Jewish Voice, Agudath Israel of America is planning to sue to challenge the newly approved regulation on free exercise and compelled speech grounds. It is seeking a law firm that will bring the suit on a pro bono or reduced fee basis.

NY Scaffold Law Applies To Worker Dismantling Wedding Chuppah

New York's "Scaffold Law," Labor Law, Sec. 240, imposes liability on contractors and owners who fail to provide proper scaffolding, ladders and related equipment to protect workers involved in the erection or demolition of any "building or structure." In McCoy v Kirsch, NY App. Div., Sept. 12, 2012), a New York appellate court held that an elaborate Jewish wedding chuppah (wedding canopy) qualifies as a "structure" so that a catering facility could be liable under Sec, 240 to a florist employee who was injured when an allegedly defective ladder on which he was standing to disassemble the chuppah slipped. The court said:

the chupah consisted of various interconnected pipes 10 feet long and 3 inches wide, secured to steel metal bases supporting an attached fabric canopy. A ladder plus various hand tools were required to assemble and disassemble the chupah's constituent parts in a process that would take an experienced worker more than a few minutes to complete.  The chupah here is more akin to the things and devices which the courts of this state have recognized as structures than to the things and devices that have not been recognized as structures.

This is not to say that every chupah qualifies as a structure under Labor Law § 240(1). Undoubtedly, there are wide variations of chupahs, some involving a series of durable interconnected parts, and others being much more simple and merely decorative in nature. 

JTA reports on the decision.

Egyptian Film Star Wins Reversal of Conviction for Insulting Islam

In Egypt on Wednesday, popular Arab comedian and film star Adel Imam won a reversal of his conviction for insulting Islam.  A trial court had sentenced Imam to 3 months in jail and a fine equivalent to $170 for the roles he played in The Terrorist, and in Terrorism and Kabab. He had also been convicted for his 2007 role in Morgan Ahmed Morgan which included a scene parodying bearded Muslim men wearing traditional Islamic dress. The basis for the reversal of his trial court conviction by the Misdemeanours Court in Haram, Cairo, has been variously reported.  The New York Times says the court found that the conservative Islamist lawyer who had instituted the proceedings was found to lack standing because he had not been personally injured by the movies.  Ahram Online says the appeals court judge had watched the films and concluded that they did not defame Islam.

Mystery Surrounds True Identity of Person Who Produced Anti-Muslim Film That Triggered Demonstrations

Mystery surrounds the anti-Muslim video that was at the center of demonstrations Tuesday at the U.S. embassy in Egypt and the U.S. consulate in Libya (as well as elsewhere since).  As previously reported, a person who said his name was "Sam Bacile" and who identified himself as a California real estate developer and an Israeli Jew claimed to be the producer of the film Innocence of Muslims. Now, however, both CNN and AP report that this is likely a fictional identity. Israel's Foreign Ministry says it has no record of anyone by that name as an Israeli citizen, and searches of public records in the United States turn up nothing for him. Anti-Muslim activist Steve Klein says he was a script consultant for the film. Klein heads an anti-Mulsim group known as Concerned Citizens for the First Amendment.  The Southern Poverty Law Center says Klein is a former Marine and religious-right activist who has helped train paramilitary militias at a California church.  He founded Courageous Christians United which conducts protests outside abortion clinics, Mormon temples and mosques.

Meanwhile, in California, a Coptic Christian, Nakoula Basseley Nakoula, says he was the manager for the company that produced the film. In 2010, Nakoula pleaded guilty to federal bank fraud charges. AP points to evidence that suggests Nakoula could be the person posing as Bacile. And the Washington Post reports on more inconsistencies: the cast and crew of the film claim they were misled about the intent and purpose of the film and were not told about later drastic re-writes of the script. Apparently the permit for producing the film was taken out by California-based Media for Christ. No one appears able to obtain a copy of the full film, leading some to speculate that the full production (as opposed to the 13-minute trailer available online) does not exist.

Missouri Legislature Overrides Veto On Health Care Conscience Provisions; Lawsuit Filed

In a move to oppose the federal mandate on contraception coverage in health insurance policies, the Missouri legislature yesterday voted to override Gov. Jay Nixon's veto of SB 749. The bill permits employers, employees and insurance companies to opt out of providing health insurance coverage for abortion, contraception or sterilization where the procedures are contrary to the person's religious beliefs or moral convictions. Nixon had vetoed the bill (veto message) because it permits insurance companies to deny contraceptive coverage even where employers and their women employees want such coverage.  The vote to override the governor's veto was 26-6 in the state Senate and 109-45 in the House. (Roll call.) The St. Louis Post Dispatch reports that just hours after the override vote, a federal lawsuit challenging the law was filed by the Greater Kansas City Coalition of Labor Union Women and a female firefighter. The suit claims that the law discriminates on the basis of gender and religion, and is contrary to federal law.

UPDATE: According to Missouri Watchdog, the lawsuit challenging the new law was filed in state court in Cole County (MO).

Church Sues Over Permit Denial To Leaflet Outside LDS Temple Open House

The ACLU of Utah announced Tuesday that it had filed a federal lawsuit on behalf of the Main Street Church of Brigham City challenging the constitutionality of Brigham City, Utah's so-called Free Speech Zone Ordinance that requires a permit for the Church to hand out literature on the sidewalks of the city.  The complaint (full text) in Main Street Church of Brigham City v. Brigham City, Utah, (D UT, filed 9/11/2012), alleges that the Church wants to hand out literature on differences between its beliefs and those of the Church of Jesus Christ of Latter Day Saints.  It wants to leaflet and engage in discussions with those receiving their literature during the month-long Open House for the LDS Temple in Brigham City.  It applied for a permit to carry out its activities on the public sidewalks adjacent to the streets on all four sides of the LDS Temple, but the city denied permission to leaflet on the two sidewalks with the heaviest pedestrian traffic. The suit alleges that the ordinance unconstitutionally restricts plaintiff's freedom of expression and assembly as well as its free exercise of religion.