2nd Circuit Upholds Denial of Vaccination Exemption

In Caviezel v. Great Neck Public Schools, (2d Cir., Oct. 12, 2012), the 2nd Circuit Court of Appeals affirmed the district court and rejected parents' constitutional challenges to New York's denial to them of a religious exemption from the requirement their children be vaccinated in order to attend public schools.  The 2nd Circuit found no clear error in the trial court's conclusion that plaintiffs had failed to show a genuine and sincere religious belief which would prohibit vaccinations.

Georgian Orthodox Church's Role In Parliamentary Elections Seen As Important

In an article posted yesterday, the New York Times reported on the role of the Georgian Orthodox Church in  last week's Parliamentary elections in the nation of Georgia. The election replaced President Mikheil Saakashvili's government with one formed by Bidzina Ivanishvili.  The Church has had a number of disagreements with the Saakashvili government, especially over legislation granting other religions equal status with the Orthodox Church in Georgia. Saakashvili was associated by Church conservatives with lax Western values.  Patriarch Ilia II insisted that the Church maintain neutrality in the election, but that signaled it was not endorsing the government.  One scholar described it as "a very active and anti-governmental neutrality."  As the election approached, Patriarch Ilia arranged for an airplane carrying icons and holy relics to circle over the country while priests prayed for its future.

1st Amendment Challenge To FBI-CIA Infiltration of Mosques Dismissed

In Zeiny v. United States, (ND CA, Oct. 10, 2012), a California federal district court dismissed a claim by a Muslim man, originally born in Egypt, that the CIA and FBI has violated his 1st Amendment rights by infiltrating Islamic centers.  He alleged that members of the Muslim community are deprived of the right to attend religious services without fear of law enforcement agents spying on them, and that his free speech in Islamic Centers is obstructed for fear of CIA action against him.

Italian Court Invalidates Attempt To Tax Church-Owned Property

In Italy last Monday, the Council of State invalidated a decree issued last February that would have subjected to taxation much of the now tax exempt property held by the Catholic Church.  The decree was an attempt to conform Italian law to European Union requirements. EU antitrust officials are investigating whether current exemptions amount to illegal government subsides of commercial activities.(See prior related posting.)  According to The Right Perspective, the Council on Monday held that the decree is "too heterogeneous" and goes “beyond the competences" of a tax law. The Church owns 20% of the property in Italy.  Purely commercial property it owns is already subject to tax. The new law would have expanded taxation to include property that generates profits, but which is now tax free because some percentage of the activities on it are religious, such as a shopping center that includes a chapel. According to ANSA, Italy's Economy Minister says that despite the court decision, the government is still determined to extend the property tax to Church property.

Despite Days In Jail For Contempt, Two Men Insist On Using Church Name Found To Be A Trademark Infringement

Yesterday's Jackson, Tennessee Sun carries an interesting interview with Walter McGill and Luke Chartier, members of a small Guys, Tennessee church who have recently been released after serving 30 days and 10 days respectively in jail for civil contempt growing out of a trademark infringement case they lost to the Seventh Day Adventist Church. (See prior posting.) The contempt sanctions were approved by a federal district court in General Conference Corporation of Seventh Day Adventists v. McGill, (WD TN, April 5, 2012).  The two men insist on calling their small church "The Creation 7th Day & Adventist Church." In the published interview, they say, in part:

We were told by God to use the name “Creation 7th Day Adventist” or “Creation Seventh Day Adventist” (spelled either way). We made an effort to show good faith in compromising in our advertising. We changed to “The Creation 7th Day & Adventist Church” (for the world church) or, at Guys, “A Creation 7th Day & Adventist Church” for the single congregation. Neither the plaintiffs nor the court recognized our “good-faith compromise” to be adequate. The fact is this: We refuse to give up our “God-given name,” which is “Creation Seventh Day Adventist.” Until God tells us differently, we must adhere to his mandate.

Justice Department Announces Non-Prosecution Policy For Certain Tribal Eagle and Protected Bird Ceremonial Use

Yesterday the U.S. Department of Justice announced  that it has issued a Memorandum (full text) to its enforcement personnel formalizing a uniform policy that assures members of federally recognized Indian tribes that they will not be prosecuted under the Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act for certain specified limited use of eagle and other protected bird feathers and parts in cultural and religious activities. Under the policy, tribal members (without obtaining a Fish and Wildlife Service permit) may possess, use, wear and travel with bird feathers or parts; acquire from the wild, without compensation, naturally molted or fallen feathers; give or exchange feathers and bird parts with other members of federally recognized tribes for their use, including to craftsmen (who may be paid for their work) for fashioning into objects for use in tribal religious or cultural activities. The Justice Department. however, will continue to prosecute both tribal members and non-members for illegal killing of eagles and other migratory birds, and for buying or selling of the feathers or other parts of protected birds. (See prior related posting.) CNN reported on the Justice Department's policy announcement.

Suit Challenges City's Ban On Traditional Nativity Diorama In Park

Earlier this week, a suit was filed in a California federal district court challenging the 2010 decision of the city of Santa Monica to adopt regulations that bar a group comprised of 13 churches and a police organization from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season.  In recent years, the display consisted of a sequential 14-scene story of Christmas. Each display was in an 18-foot long booth and included life-size mannequins and props. The city took the action after controversy in recent years when secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. The complaint (full text) in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, filed 10/9/2012) contends:

By amending the ordinance ... Defendant City succumbed to a "heckler's veto" and has thereby given preference to a messages hostile to religion, particularly Christianity.

It claims the city has imposed a content-based restriction on speech, has violated the Establishment Clause by adopting a policy that reflects hostility to Christianity and our nation's religious heritage, and has violated the equal protection clause by denying use of a public forum to those whose messages it finds unacceptable.

CBS News reports on the lawsuit.

Vice-Presidential Debate Explores Candidates' Religious Views

In last night's vice-presidential debate (full transcript), one question by moderator Martha Raddatz went directly to the candidates' religious views. Here is a slightly edited version of the exchange:

RADDATZ: ... We have two Catholic candidates, first time, on a stage such as this. And I would like to ask you both to tell me what role your religion has played in your own personal views on abortion..... 

RYAN: I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do. My faith informs me about how to take care of the vulnerable, of how to make sure that people have a chance in life.... Now, you want to ask basically why I'm pro-life? It's not simply because of my Catholic faith. That's a factor, of course. But it's also because of reason and science.

You know, I think about 10 1/2 years ago, my wife Janna and I went to Mercy Hospital in Janesville where I was born, for our seven week ultrasound for our firstborn child, and we saw that heartbeat. A little baby was in the shape of a bean. And to this day, we have nicknamed our firstborn child Liza, "Bean." Now I believe that life begins at conception.

... Now I understand this is a difficult issue, and I respect people who don't agree with me on this, but the policy of a Romney administration will be to oppose abortions with the exceptions for rape, incest and life of the mother. What troubles me more is how this administration has handled all of these issues. Look at what they're doing through Obamacare with respect to assaulting the religious liberties of this country. They're infringing upon our first freedom, the freedom of religion, by infringing on Catholic charities, Catholic churches, Catholic hospitals.

Our church should not have to sue our federal government to maintain their religious liberties. And with respect to abortion, the Democratic Party used to say they wanted it to be safe, legal and rare. Now they support it without restriction and with taxpayer funding. Taxpayer funding in Obamacare, taxpayer funding with foreign aid. The vice president himself went to China and said that he sympathized and wouldn't second guess their one child policy of forced abortions and sterilizations. That to me is pretty extreme....

BIDEN: My religion defines who I am, and I've been a practicing Catholic my whole life. And has particularly informed my social doctrine. The Catholic social doctrine talks about taking care of those who - who can't take care of themselves, people who need help. With regard to - with regard to abortion, I accept my church's position on abortion as a - what we call a (inaudible) doctrine. Life begins at conception in the church's judgment. I accept it in my personal life.

But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others, unlike my friend here, the - the congressman. I - I do not believe that we have a right to tell other people that - women they can't control their body. It's a decision between them and their doctor. In my view and the Supreme Court, I'm not going to interfere with that. With regard to the assault on the Catholic church, let me make it absolutely clear, no religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy Hospital, any hospital, none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact.

.... Now with regard to the way in which the - we differ, my friend says that he - well I guess he accepts Governor Romney's position now, because in the past he has argued that there was - there's rape and forcible rape. He's argued that in the case of rape or incest, it was still - it would be a crime to engage in having an abortion. I just fundamentally disagree with my friend....

RYAN: All I'm saying is, if you believe that life begins at conception, that, therefore, doesn't change the definition of life. That's a principle. The policy of a Romney administration is to oppose abortion with exceptions for rape, incest and life of the mother.....

Malaysian Court Upholds Shariah Provision Barring Cross Dressing

In Malaysia yesterday, the High Court in Seremban ruled against four transgender plaintiffs who sued in civil court to bar enforcement against them of a law-- enforced in Shariah courts-- that bans Muslim men from cross dressing in women's clothing. AP and BikyaMasr report that four transgender activists who had previously been arrested by religious authorities for violating the law had challenged the law as infringing freedom of expression and as violating the constitutional prohibition on gender discrimination.  The government argues that the protection against gender discrimination does not cover sexual orientation. The court held that Muslim transsexuals cannot be exempted from Shariah law applying to them. The four plaintiffs have undergone hormone therapy and present themselves in public as women.

British Soccer Players Are Told New Team Shirts Violate Sharia Law

In Britain earlier this week, Newcastle's soccer team, the Magpies, signed a lucrative deal with Wonga.com, a short-term loan company that operates online, under which Wonga becomes the team's shirt sponsor beginning in the 2013-14 season. (Goal.com). Now, according to Goal.com, Shaykh Ibrahim Mogra, assistant general secretary of the Muslim Council of Britain, has told Muslim players that they will violate Sharia law if they wear the shirts. Under Islamic law, Muslims are not allowed to benefit from the lending of money. Wonga charges over 4000% interest on its loans.  Four players on the current Newcastle squad are practicing Muslims.

Suit Filed Challenging NYC Informed Consent Requirements For Certain Ritual Circumcisions

A widely anticipated lawsuit was filed in federal district court in New York yesterday challenging a recently adopted New York City Board of Health regulation requiring informed consent from parents before a controversial method is used in the Jewish religious circumcision of their infant sons. (See prior posting.) As reported by the Wall Street Journal, three Orthodox Jewish organizations and three rabbis sued challenging the city's new requirement that mohels who use metzitzah b'peh (oral suction) when circumcising infants first obtain signed written consent forms from parents warning them of the risk of transmission of diseases such as herpes simplex.  The suit contends that the city lacks proof that the procedure poses health risks, and that the regulation unconstitutionally forces private citizens to convey information they do not believe.

UPDATE: The full text of the complaint in Central Rabbinical Congress of the USA and Canada v. New York City Department of Health & Mental Hygiene, (SD NY, filed 10/11/2012) is now available. The complaint asserts a compelled speech claim, as well as free exercise claims under the U.S. and New York state constitutions.

Atlanta Archdiocese Sues Over Contraceptive Insurance Coverage Mandate

The Catholic Archdiocese of Atlanta announced yesterday that it has filed suit in a Georgia federal district court challenging the mandate that health insurance policies cover contraceptive services. Joining the Archdiocese as plaintiffs are the Diocese of Savannah; Catholic Charities of the Archdiocese of Atlanta; and Christ the King School, Atlanta. The complaint (full text) in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, filed 10/5/2012) alleges that the mandate violates the 1st Amendment, RFRA, the Administrative Procedure Act and amounts to an unconstitutional delegation of legislative authority. Dozens of other Catholic organizations and dioceses have already filed similar suits. (See prior posting.)

Philippines Enters Agreement With Islamic Rebels; Will Create Area With Sharia Law For Muslims

In the Philippines last Sunday, President Benigno Aquino announced that a preliminary agreement has been reached with the Moro Islamic Liberation Front that will end a Muslim insurgency in Mindanao that has gone on for many years. The framework agreement is scheduled to be signed on Oct. 15. The agreement calls for establishment of  an area called Bangsamoro.  According to the Philippine Daily Inquirer, Sharia law rather than the Civil Code will apply to Muslims in Bangsamoro, but any law or regulation to be adopted by the region must assure basic constitutional rights and liberties, including separation of religion and state. Any Islamic religious schools (madaris) will be privately funded. The state will continue to regulate public schools, but will be culturally sensitive in creating the curriculum. A 15-member Transition Commission will work out details of the agreement. Some commentators are concerned that the arrangement will infringe religious liberties of both Muslims and Christians in the area.

UPDATE: In the United States, the White House welcomed the signing of the agreement in an Oct. 15 statement by the Office of the Press Secretary. The White House says that the agreement "marks another step toward ending insurrection and restoring good governance."

German Court Refuses To Excuse Muslim Girl From Co-Ed School Swimming Classes

Gatestone Institute reports on a Sept. 28 decision by the Hessian Administrative Court in Germany refusing to excuse a 12-year old Muslim girl from co-ed swimming lessons in her school. The court, emphasizing that religious minorities must avoid segregating themselves, said that the girl's religious beliefs could be accommodated by her wearing a full-body swimsuit (also known as a "burkini"), as do several other Muslim girls at her school. The girl's lawyer said the 12-year old does not want to wear a burkini because it makes her look ugly, and seeing other boys and girls in short clothes violates her modesty. Because of the importance of the case, the court is asking the Federal Administrative Court to review the decision.

Trespass Conviction of Church Member Reversed

In a 2-1 decision in Semenick v. State of Indiana, (IN App., Oct. 9, 2012), and Indiana appellate court reversed the criminal trespass conviction of a long-time church member who was evicted from church services by an off-duty police officer acting as a security guard after the church member complained that a volunteer greeter was speaking too loudly with others during the service.  The majority held that the church member had a right to be on church premises and there was no evidence that the off-duty police officer had authority to take sides in a dispute between members and ask one of them to leave. Judge Mathias dissenting  argued that defendant's conduct during services was disruptive. The jury, he argued, could reasonably conclude that defendant did not have a contractual interest in the property at issue, and knowingly or intentionally refused to leave the Church after having been asked to do so by an agent of the Church.

Denial of Loan Guarantee for Faith-Based Group Remanded For Consideration of Constitutional Issues

In Care Net Pregnancy Center of Windham County v. U.S. Department of Agriculture, (D DC, Oct. 10, 2012), a Christian pregnancy resource center in Brattleboro, Vermont challenged the Department of Agriculture's denial to it of a loan under the agency's Community Facilities Loan Program. The agency sought to purchase and renovate property for it to use as its permanent facility. While faith-based organizations are eligible to participate in the program, inherently religious activities cannot be supported. Part of Care Net's program included Bible study or Bible centered teaching.  The USDA's Appeals Division Hearing Officer concluded that:

Due to the fluctuating nature of [Care Net’s] program and due to a lack of reliable classroom information provided by [Care Net], [the USDA] is unable to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion.... [Care Net] has not satisfactorily shown that the amount of direct USDA assistance requested does not exceed the cost of the proposed acquisition and renovation attributable to eligible program activities.

The court concluded that this was a reasonable interpretation of the agency's regulations. However the court remanded the case to the USDA's Appeals Division for it to consider Care Net’s claims under the Free Speech and Equal Protection Clauses, the USDA’s defense under the Establishment Clause, and Care Net’s Fair Housing Act claim.

Another Suit Filed Challenging ACA Contraceptive Coverage Mandate

New suits continue to be filed challenging the mandate under the Affordable Care Act requiring that most insurance policies cover contraceptive services. The latest is Korte v. U.S. Department of Health and Human Services, (SD IL, filed 10/9/2012) (full text of complaint) in which the two controlling shareholders of a family-owned construction firm with 90 employees allege that complying with the Mandate would require them to violate their Catholic religious beliefs. Plaintiffs also filed a Memorandum of Law in support of their motion for partial summary judgment and a Memorandum of Law in support of their motion for a preliminary injunction. In  a press release, the American Center for Law and Justice announced the filing of the lawsuit.

School Ban On Student Distribution of Proselytizing Messages Is Viewpoint Discrimination

In Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 5, 2012), a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church organized Easter egg hunt to fellow classmates. The invitation indicated that the purpose of the event was "To have fun and learn the true meaning of Easter." According to the court:

Board Policy 9700 bans the distribution of materials from religious institutions or organizations that “contain a proselytizing message (i.e., promote the benefits of the specific religion).”  The policy also states that school officials shall use the criteria in Board Policy 5722 to determine whether materials are suitable for distribution at school.  In turn, one provision in Board Policy 5722 explains that materials are not appropriate if they “[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]”...

As applied to J.G.’s invitations, the contested provisions ... permit viewpoint discrimination because they target proselytizing messages solely from a religious perspective.... Board Policy 9700 applies only to religious institutions and organizations – not secular groups.  The policy also defines “proselytizing messages” exclusively in relation to religious speech,  or messages that “promote the benefits of the specific religion.”  But proselytizing also has a broader meaning, such as “recruit[ing] members for an institution, team, or group.”...  Although the School Board asserts that the policies are viewpoint neutral because they apply equally to all religions, regardless of the underlying theology, this argument is not persuasive.

Student Press Law Center reports on the decision.

Recent Articles of Interest (Installment 2 For This Week)

From SSRN:

• Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, (Boston College Law Review, Vol. 53, p. 1417, 2012).
• Amos N. Guiora and Julia Chamberlin, Religion and the Status of Women, (October 2, 2012).
• Aaron J. Rappaport, Tinka M. Veldhuis, and Amos N. Guiora, Homeland Security and the Inmate Population: The Risk and Reality of Islamic Radicalization in Prison, (Special Needs Offenders IN Correctional Institutions, p. 431, Lior Gideon, ed., 2012).
• Kay Wilson, Penelope June Weller, Benevolent Paternalism or a Clash of Values: Motherhood and Refusal of Medical Treatment in Ireland , (2011) 21 Journal of Mental Health Law 74.
• Hadassa A. Noorda, Review on Ahmed Al-Dawoody, The Islamic Law of War – Justifications and Regulations, (Journal of Military Ethics, 11:1, 67-69, 2012).

From SmartCILP and elsewhere:

• Susanna Mancini, Patriarchy As the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism, 10 I.Con: International Journal of Constitutional Law 411-428 (2012).
• Laura Nader, Rethinking Salvation Mentality and Counterterrorism, 21 Transnational Law & Contemporary Problems 99-117 (2012).
• Wadie E. Said, The Message and Means of Modern Terrorism Prosecution, 21 Transnational Law & Contemporary Problems 175-195 (2012).
• Stephanie M. Wurdock, Doctors, Dioceses, and Decisions: Examining the Impact of the Catholic Hospital System and Federal Conscience Clauses on Medical Education, 6 Pittsburgh Journal of Environmental & Public Health Law 179-212 (2012).
• Stanley W. Carlson-Thies, Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law's Contraceptives Mandate, Engage Volume 13, Issue 2, July 2012.
• Karen Lugo, American Family Law and Sharia-Compliant Marriages, Engage Volume 13, Issue 2, July 2012.
• Pew Forum on Religion & Public Life, Preaching Politics From the Pulpit--2012 Guide to IRS Rules on Political Activity by Religious Organizations, (2012).

Russian Court Suspends Sentence Of One Pussy Riot Band Member

In Russia today, according to Reuters, the Moscow City Court suspended the sentence of Yekaterina Samutsevich, one of the 3 members of the punk rock band Pussy Riot who had been given a 2-year prison sentences for hooliganism motivated by religious hatred growing out of a protest performance after the band entered Christ the Savior Cathedral. (See prior posting.) It turns out that Samutsevich had not taken part in the actual performance because she had been stopped and led away before it began.  The court however reaffirmed the sentences of the other 2 band members, rejecting the argument they made in appealing their sentences that they did not intend to offend religious believers, but instead "to speak out against the merger between spiritual figures and the political elite of our country."