Court Issues TRO Allowing High School Cheerleaders To Use Banners With Bible Verses

Earlier this week, after a complaint from the Freedom From Religion Foundation, the Texas Association of School Boards advised the Kountze (TX) Independent School District to ban football cheerleaders from displaying banners, including run-through banners, containing Bible verses. As reported by AP, cheerleaders and their parents objected to the ban, saying the banners were not made on school property and no school money was used to make them. So, as reported by Liberty Institute, cheerleaders and their parents filed suit in state court seeking a temporary restraining order allowing them to use the banners, arguing that: "This is a quintessential example of students private speech being censored unnecessarily by uninformed school officials."  In Matthews v. Kountze Independent School District, (TX Dist. Ct., Sept. 20, 2012), the court issued a TRO restraining the school district from preventing the cheerleaders from displaying banners  or run-throughs at sporting events and/or censoring the sentiments expressed on them. The court scheduled a hearing for Oct. 4 on whether the TRO should be made into a temporary injunction.

Senate Hearings On Hate Crimes Included Focus On Sikh Temple Shooting

Yesterday the U.S. Senate Judiciary Committee Subcommittee on the Constitution, Civil Rights and Human Rights held hearings titled Hate Crimes and the Threat of Domestic Extremism. The hearings focused in part on the Aug. 5 shooting at a Sikh temple in Oak Creek, Wisconsin. A webcast of the hearings and a transcript of witness statements are available on the Committee's website. [Thanks to Michael Lieberman for the lead.]

Actress In "Innocence of Muslims" Sues Producer and YouTube

Cindy Lee Garcia, an actress in Innocence of Muslims-- the video which set off demonstrations around the world-- yesterday filed a lawsuit in a California state court against the film's producer Nakoula Basseley Nakoula.  As reported by Hollywood Reporter and by AP, her suit which asserts claims for invasion of privacy, false light, right of publicity, fraud, slander, and intentional infliction of emotional distress, says that she was tricked into appearing in the film. She thought she was performing in an ancient Egyptian adventure film titled "Desert Warriors." Anti-Muslim dialogue was later dubbed into the film.  Garcia alleges that the producers concealed the purpose and content of the film. Garcia also sued YouTube and its parent company, Google, seeking to have the video taken down from YouTube. In addition to an injunction, the suit seeks exemplary and punitive damages. [Thanks to William McGeveran via CyberProf for the lead.]

UPDATE: Here is the full text of the complaint in Garcia v. Nakoula, (Los Angeles Super Ct., filed 9/19/2012).

UPDATE2: On Thursday, the court refused to issue a temporary injunction to require the video to be removed from YouTube, saying that Garcia had not demonstrated a likelihood of success on the merits. (Hollywood Reporter.)

Massachusetts High Court: Ministerial Exception Doctrine Applies To Age Discrimination Claim By Jewish Religious School Teacher

In Temple Emanuel of Newton v. Massachusetts Commission Against Discrimination,  (MA Sup. Jud. Ct., Sept. 19, 2012), the Massachusetts Supreme Judicial Court held that the constitutionally mandated "ministerial exception" doctrine precludes a state court or administrative agency from applying Massachusetts' anti-discrimination laws to adjudicate an age discrimination complaint filed by a part-time religious school teacher who who was not rehired when a Jewish temple reduced its teaching staff from 20 to 12. The court said:

[plaintiff] was not a rabbi, was not called a rabbi, and did not hold herself out as a rabbi. The record is silent as to the extent of her religious training.... [S]he taught religious subjects at a school that functioned solely as a religious school, whose mission was to teach Jewish children about Jewish learning, language, history, traditions, and prayer..... [T]he fundamental question is whether it would infringe the free exercise of religion or cause excessive entanglement between the State and a religious group if a court were to order a religious group to hire or retain a religious teacher that the religious group did not want to employ, or to order damages for refusing to do so.... We conclude that it would. Where a school's sole mission is to serve as a religious school, the State should not intrude on a religious group's decision as to who should (and should not) teach its religion to the children of its members. Therefore, the ministerial exception applies to the school's employment decision regardless whether a religious teacher is called a minister or holds any title of clergy.

The Boston Globe reports on the decision.

Memphis City Council Adopts New Invocation Policy In Response To FFRF

On Tuesday, the Memphis, Tennessee City Council adopted a lengthy resolution (full text) creating a new policy on opening invocations before city council meetings.  As reported by WREG News, the policy was adopted in order to attempt to avoid a lawsuit threatened by the Freedom From Religion Foundation. Previously invocations were offered, but no written policy was in existence.

After beginning with nearly 3 pages of  "Whereas" clauses, the newly adopted resolution goes on to provide for the Council Administrator to draw up a broad list of religious and benevolent non-profit organizations-- both religious and secular-- with an established local presence. Representatives of these organizations, as well as any fire, police or military chaplain, are eligible to offer "an invocation, which may include a prayer, a reflective moment of silence, or a short solemnizing message... for the benefit of the Council." In somewhat contradictory directions, the policy calls for the Clerk to "make every reasonable effort to ensure that a variety of eligible invocation speakers are scheduled for the Council meetings." However it also provides that an invitation shall be published each year inviting eligible organizations to volunteer to offer the invocation, and that "the respondents to the invitation shall be scheduled on a first-come, first-serve basis to deliver the invocation."

French Magazine Publishes New Muhammad Cartoons; France Reacts, White House Comments

In the wake of widespread Muslim protests over an insulting YouTube video, yesterday,the French satirical magazine Charlie Hebdo invited new protests by publishing a series of cartoons insulting the Prophet Muhammad.  Some of the cartoons depict Muhammad naked and in pornographic poses. AP and the New York Times report on developments. A lawsuit was filed in France against the magazine hours after the issue appeared.  France plans to close its embassies and French schools in 20 countries this Friday as a precaution against demonstrations that could occur after services in mosques.  In Egypt, Muslim Brotherhood spokesman Mahmoud Ghozlan urged authorities to outlaw comments deemed blasphemous by Muslims in the same way that French law outlaws Holocaust denial. Meanwhile, hackers have blocked access to Charlie Hebdo's website because of the depictions on it.  French police are guarding Charlie Hebdo's offices. Last November, its offices nearby were firebombed after it published as a spoof an issue “guest edited” by Muhammad to celebrate the victory of an Islamist party in Tunisian elections.  Charlie Hebdo's defiant editorial director Stéphane Charbonnier said: "I’m sorry for the people who are shocked when they read Charlie Hedbo. But let them save 2.50 euros and not read it. That’s the only thing I have to say."

In Washington, at the White House Press Briefing (full text) yesterday afternoon, press secretary Jay Carney had this exchange with reporters over the Charlie Hebdo cartoons:

Q    The French government has decided to temporarily close their embassies and schools in several Muslim countries after a satirical weekly, Charlie Hebdo, that published cartoons mocking the Prophet Muhammad.  Is the White House concerned that those cartoons might further fan the flames in the region?

MR. CARNEY:  Well, we are aware that a French magazine published cartoons featuring a figure resembling the Prophet Muhammad, and obviously, we have questions about the judgment of publishing something like this.  We know that these images will be deeply offensive to many and have the potential to be inflammatory.  But we’ve spoken repeatedly about the importance of upholding the freedom of expression that is enshrined in our Constitution.

In other words, we don’t question the right of something like this to be published; we just question the judgment behind the decision to publish it.  And I think that that’s our view about the video that was produced in this country and has caused so much offense in the Muslim world.

 Now, it has to be said, and I’ll say it again, that no matter how offensive something like this is, it is not in any way justification for violence -- not in any way justification for violence.  Now, we have been staying in close touch with the French government as well as other governments around the world, and we appreciate the statements of support by French government officials over the past week, denouncing the violence against Americans and our diplomatic missions overseas.

Rights Group Protests Egypt's Arrest of Activist For Insulting Religion

The Arabic Network for Human Rights Information issued a press release last Sunday protesting the arrest by Egyptian police of political activist and blogger known as Albir Saber Aiad. Last week, Aiad's mother called the police for help when a crowd gathered around Aiad's house, threatening to break in and burn it down, because of a rumor that Aiad had posted a movie on his Facebook page that ridiculed the Prophet Muhammad.  When police arrived, they inspected the house, confiscated Aiad's computer and some CDs. took Aiad to the police station and charged him with insulting religion, without indicating who had filed a report against him. He was jailed, and was assaulted due to provocations by police officers. On Sunday, authorities extended Aiad's imprisonment for 15 more days while an investigation is taking place.

Canadian and Indian Governments Express Concern With Pro-Khalisan Activity By Canadian Sikhs

Last week, Canada's foreign minister John Baird in a visit to India promised to do "whatever we can within the limits of the Constitution" to prevent  extremist activity in Canada by Sikhs who want to create a separate Sikh state of Khalistan in the Punjab area of India. As reported by the Toronto Star, Baird made the comments at a press conference along with India's external affairs minister S. M. Krishna. The government of India has been  pressing Canada to take action against the separatists. Reflecting the views of the Indian government, the Indian Overseas Congress has said it wants all Khalistan insignia to be removed from Sikh Gurdwara’s in the United States and Canada. (SikhSiyasat Network, 9/14). In a press release, the Indian Overseas Congress claims that Canada's tax laws justify the call for removal of Khalistan insignia, since tax-exempt organizations generally cannot devote more than 10% of their resources political activities. (SikhSivasat Network, 9/18). Meanwhile, Canada's Sikh Coalition criticized attempts to limit pro-Khalistan activity, saying that it is an attempt "to silence any political discourse on the current state of Punjab by associating political discussion with extremism."

Egypt Charges 8 In U.S. In Connection With "Innocence of Muslims" Video

CNN reports that Egypt's public prosecutor yesterday charged 7 Coptic Christians living in the United States, and Florida pastor Terry Jones, with insulting the Islamic religion and the prophet Muhammad, inciting sectarian strife, harming national unity and spreading false information, all in connection with the 14-minute trailer for the movie Innocence of Muslims.  The video, posted on YouTube, led to demonstrations around the Arab and Muslim world, including attacks on the U.S. Embassy in Cairo and the U.S. Consulate in Libya. (See prior posting.)  In addition to Jones, those charged are filmmaker Nakoula Basseley Nakoula (identified by Egyptian officials as Elia Bassili); Morris Sadek, who is believed to have posted the video on YouTube; Morcos Aziz; Fikri Zokloma (also known as Esmat Zokloma); Nabil Bissada; Nahed Metwali; and Nader Nicola. Egypt added the names of those charged to its airport watch list, and says it will ask Interpol to add the names to its wanted lists.

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.