Monday, September 24, 2012

Recent Articles of Interest

From SSRN:
From SSRN-- Islamic Law:
From SmartCILP:

Sunday, September 23, 2012

Recent Prisoner Free Exercise Cases

In Jean-Pierre v. Bureau of Prisons, (3d Cir., Sept. 18, 2012), the 3rd Circuit upheld the dismissal of a Rastafarian prisoner's complaint over his prior suspension from the Certified Religious Diet Program

In Ind v. Colorado Department of Corrections, 2012 U.S. Dist. LEXIS 130476  (D CO, Sept. 13, 2012), a Colorado federal district court rejected a magistrate Judge's recommendations (2012 U.S. Dist. LEXIS 130473, July 16, 2012) and refused to dismiss on either mootness or 11th Amendment grounds RLUIPA and free exercise claims by an inmate who is a follower of "Christian Separatism." Plaintiff complains about limitations on correspondence, books, magazines, and taking communion, as well as his classification as a member of a security threat group because of his religion.

In Gibson v. Pacheco, 2012 U.S. Dist. LEXIS 130477 (D CO, Sept. 13, 2012), a Colorado federal district court adopted two recommendations of a magistrate judge (2012 U.S. Dist. LEXIS 130479, March 14, 2012 and 2012 U.S. Dist. LEXIS 132409, April 16, 2012) and rejected various constitutional and RLUIPA challenges to rules and procedures for terminating an inmate's participation in the kosher diet program, but allowed him to move ahead with his 1st Amendment claim that authorities did not properly comply with these rules in removing him from the program.

In McKenzie v. Ellis, 2012 U.S. Dist. LEXIS 130973 (SD CA, Sept. 12, 2012), a California federal district court adopted in part and rejected in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 130974, May 15, 2012), and dismissed complaints by a Rastafarian inmate that he was denied a special religious diet during two time periods.

In Anderson v. Bilbo, 2012 U.S. Dist. LEXIS 130941 (WD OK, Sept. 7, 2012), an Oklahoma federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 130943, Aug. 15, 2012), and dismissed complaints by an inmate that he was served pork a few times in violation of his non-pork diet which he maintained for religious reasons (which he never documented).

Kushner v. Keller, 2012 U.S. Dist. LEXIS 132292 (ED NC, Sept. 17, 2012), is a damage action by a former state inmate against authorities for failing to provide him with kosher meals at one facility at which he was incarcerated. A North Carolina federal district court dismissed plaintiff's RFRA and RLUIPA claims, and his 1st Amendment claims against several defendants on qualified immunity grounds. The court found that factual issues remained for trial as to his remaining free exercise claims.

In Pokrzywinski v. Davenport, 2012 U.S. Dist. LEXIS 132118 (ND AL, Sept. 17, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132117, Aug. 20, 2012) and rejected a Native American inmate's complaint that his rights were violated when the warden extinguished a sacred fire during a Native American sweat lodge ceremony because the fire had become too large. Inmates (but without plaintiff's participation) immediately rebuilt a smaller fire.

In Turner-Bey v. Maynard, 2012 U.S. Dist. LEXIS 133862 (D MD, Sept. 18, 2012), a Maryland federal district court rejected challenges by an inmate who is a member of the Moorish Science Temple of America to the Maryland prison system's religious diet policy.  He objected that the only diet available to him that meets the requirements of Islamic law is a lacto-ovo vegetarian diet.

In Wilson v. Texas Department of Criminal Justice, 2012 U.S. Dist. LEXIS 132930 (ED TX, Sept. 18, 2012), a Texas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 132932, Aug. 16, 2012) and dismissed complaints by a blind Native American inmate that he was unable to participate in religious programming when he was temporarily transferred to a unit that had special programs for blind prisoners, but did not have Native American religious programming.

In Boyd v. Carney, 2012 U.S. Dist. LEXIS 133387 (WD WA, Aug. 1, 2012), a Washington federal magistrate judge recommended dismissing a inmate's complaint that his rights were violated when defendants changed his mandatory Halal meat diet to a metabolic diet.

Illinois Appeals Court Issues Narrow Injunction Protecting Pharmacists' Conscience Rights

In Morr-Fitz, Inc. v. Quinn, (IL App., Sept. 20, 2012), an Illinois appellate court narrowed the scope of an injunction that had been issued by a trial court preventing enforcement of an Illinois State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception. (See prior posting.) Avoiding the constitutional issues, the appellate court held that Illinois' Health Care Right of Conscience Act applies to pharmacists and pharmacies and protects plaintiffs' decisions not to dispense emergency contraceptives due to their conscience beliefs. However the trial court's injunction barring enforcement of the rule even against non-objecting pharmacies was held to be overly broad. The appellate court concluded: "We modify the injunction so it enjoins defendants from enforcing the Current Rule against these plaintiffs, who have conscience-based objections to the Current Rule." The Chicago Tribune reports on the decision.

Juvenile Court's Vaccination Order Did Not Violate Mother's Free Exercise Rights

In Schenker v. County of Tuscarawas, (ND OH, Sept. 14, 2012), an Ohio federal district court rejected a mother's claim that a state juvenile court infringed her free exercise rights by requiring her children to be vaccinated in violation of her religious beliefs. The state court's order came as part of proceedings finding the children neglected and dependent and placing them in the custody of child welfare authorities.

Saturday, September 22, 2012

German Bishops Decree Consequences For Catholics Who Opt Out of Church Taxes

Germany's Conference of Catholic Bishops on Thursday issued a Decree and Pastoral letter providing that those who opt out of Germany's church tax will be ineligible to participate in a wide variety of Church sacraments and activities. (Press release and links to full text of documents in German.) Germans who register with the government as Catholics, Protestants or Jews are assessed an additional  8% to 9% of their income tax bill to support their religious organizations. However Germans can avoid this additional tax by filing a declaration with their local tax office stating that they are leaving their faith community. Growing numbers are filing this opt out. This threatens the 5 billion Euros ($6.5 billion US) realized by the Catholic Church from the tax. In their latest decree (which was approved in advance by the Vatican), the German bishops say that "one cannot partly leave the Church." According to Reuters, the decree provides that:
Catholics who leave can no longer receive sacraments, except for a special blessing before death, the decree states.
They cannot work in the church or its institutions, such as schools and hospitals, or be active in church-sponsored associations such as charity groups or choirs.
They cannot be godparents for Catholic children and must get a bishop's permission to marry a Catholic in a church ceremony. "If the person who left the Church shows no sign of repentance before death, a religious burial can be refused.
[Thanks to Scott Mange for the lead.] 

Catholic Church In Australian State Reports To Parliament On Past Child Sex Abuse Data

In the Australian state of Victoria, the state Parliament's Family and Community Development Committee is conducting an inquiry on the handling of child abuse by religious and other organizations.  The deadline for submissions of written statements and reports to the Committee was Friday. In a press release Friday, the Archbishop of Melbourne announced on that he would file a report titled Facing the Truth on behalf of the leaders of the Catholic Church in Victoria. While the full report has not been publicly released, the press release says that:
In the past 16 years, about 620 cases of criminal child abuse have been upheld by the Church in Victoria. Most claims relate to incidents from 30 and up to 80 years ago.  The Church has received very few complaints of abuse that has taken place since 1990.
The press release also renews the Church's apology to victims and says the report details the changes that have been made in dealing with victims and offenders. The Australian reports on the largely critical reactions of victims and their advocates to the Church's report.

Hostility To Religious Practices Rises In Many Countries, Including U.S.

On Thursday, the Pew Forum on Religion & Public Life released a third in a series of reports on the extent to which governments and societies around the world restrict religious practices.  This latest report, titled Rising Tide of Restrictions on Religion, traces changes in religious restrictions from mid-2009 to mid-2010. As of mid-2010, eighteen countries had very high levels of governmental restrictions on religion, while 15 countries had high levels of non-governmental social hostility.  Between 2009 and 2010, 66% of countries showed an overall increase in difficulties faced by religious groups, while 28% showed a decrease. For the year, the United States showed a significant increase in both governmental restrictions and social hostility. According to the report:
This included incidents in which individuals were prevented from wearing certain religious attire or symbols, including beards, in some judicial settings or in prisons, penitentiaries or other correctional facilities.... Some religious groups in the U.S. also faced difficulties in obtaining zoning permits to build or expand houses of worship, religious schools or other religious institutions.... [A]t least one state sought to restrict the application of Islamic or sharia law. And, for the first time, [it was] ... reported that some level of government in the U.S. had imposed limits on conversion... [A]t the Southport Correctional Facility, an ultra-maximum security prison near Elmira, N.Y.,... a prisoner was denied the right to change his religious designation to Muslim.
.... A key factor behind the increase in the U.S. score on the Social Hostilities Index was a spike in religion-related terrorist attacks in the United States.... Other forms of social hostilities ... also increased....   In Murfreesboro, Tenn. ... some county residents attempted to block the construction of a mosque ... by claiming ... that Islam is a “political ideology rather than a religion” and that “mosques are political rather than religious in nature..... The increase in social hostilities in the U.S. also reflects a rise in the number of reported religion-related workplace discrimination complaints....
[Thanks to First Things blog for the lead.] 

Friday, September 21, 2012

Deadly Protests Over Anti-Muslim Video Continue Despite Attempts to Keep Them Peaceful

According to the Christian Science Monitor, today protests over the controversial video Innocence of Muslims turned deadly in Pakistan as 17 people were killed and dozens were injured. The Pakistani government had declared today "Love for the Prophet Day" and had encouraged peaceful protests. The U.S. Embassy spent $70,000 on Pakistani TV ads showing President Obama and Secretary of State Clinton denouncing the video.  The ads were in English with Urdu subtitles. Meanwhile, ABC News surveys the demonstrations against the film in a dozen countries around the world which have led to the deaths of at least 47 people.

UPDATE: Pakistan's Railways Minister Ghulam Ahmed Bilour on Saturday, speaking for himself and not the government, offered a reward to members of the Taliban and al-Qaeda if they would take part a "noble deed". As reported by al-Jazeera, Bilour said: "I announce today that this blasphemer who has abused the holy prophet, if somebody will kill him, I will give that person a prize of $100,000."  Meanwhile, as reported Saturday by CNN, Egypt's influential Grand Mufti, Ali Gomaa, while strongly criticizing the video, called for Muslims to react peacefully, saying: "These cartoons spread hatred, and we call for peace." He urged Muslims to react as the Prophet himself would, ""through patience and wisdom."

Colombia's Constitutional Court Says No Bible Quotes To Support Legal Decisions

AP reports that Colombia's Constitutional Court this week released a Directive it issued in June that prohibits courts in the country from using quotations from religious texts to directly support the reasoning for a decision or judgment. However, religious quotations can be used to explain a point of view. The ruling came in a labor court case in which the judge's opinion  included a Biblical quotation: "In the case of justice, it shouldn't even favour the poor." The Constitutional Court said that judges "are obliged to respect the principle of secularism that characterizes the Colombian state,"  and that decisions "must be devoid of any expression suggesting a bias based on religious beliefs or personal convictions of the judicial officer."

Preacher Sues Challenging Part of New Orleans Aggressive Solicitation Law

Last year, New Orleans (LA) enacted an extensive "Aggressive Solicitation" ordinance applicable to the French Quarter. (New Orleans City Code Sec. 54-419). Yesterday, the pastor of a church in the French Quarter who regularly preaches and hands out tracts or carries signs on the streets in the area filed a federal lawsuit challenging one provision in the ordinance that prohibits loitering or congregating on Bourbon Street "for the purpose disseminating any social, political, or religious message between the hours of sunset and sunrise." According to the complaint (full text) in Gros v. City of New Orleans, (ED LA, filed 9/20/2012): "Because Pastor Gros firmly believes a large number of people found on Bourbon Street at night desperately need to have saving faith in Jesus Christ, he wants to go there at that time and share the gospel message with them." The complaint contends that the challenged provision is an unconstitutional content-based restriction on speech. It also argues that the ban on "social" messages is void for vagueness. Plaintiffs also filed a motion for a preliminary injunction. (Full text). Alliance Defending Freedom issued a press release announcing the filing of the lawsuit. AP also reports on the lawsuit.

16 Amish Convicted In Beard Cutting Assaults

According to McClatchy Newspapers, a federal court jury in Cleveland, Ohio yesterday convicted 16 members of the Bergholz Amish sect of conspiring to violate the Matthew Shepard-James Byrd, Jr. Hate Crimes Prevention Act in a series of assaults last year on members of a rival Amish group. The Act prohibits any person from willfully causing, or attempting to cause, bodily injury by use of a dangerous weapon, because of the actual or perceived religion of that person. Defendants used scissors and battery powered clippers to cut the beards of male victims and the hair of females.  Defense lawyers, who did not call any witnesses at trial, argued that the attacks were only motivated by love, to save other Amish from their incorrect ways. A Department of Justice Release details that in addition to the conspiracy charges, various of the defendant were convicted of hate crimes involving kidnapping, concealing evidence and making false statements to the FBI. A sentencing hearing is scheduled for January. (See prior related posting.)

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.

Thursday, September 20, 2012

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.

Wednesday, September 19, 2012

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.