Religion Clause

Wednesday, October 17, 2012

Mediation With Victims Fails In Milwaukee Archdiocese Bankruptcy

The Milwaukee Journal Sentinel reports that bankruptcy court-ordered mediation between the Catholic Archdiocese of Milwaukee and 575 victims of sexual abuse has failed after 3 months. Both sides confirmed on Monday that the talks have broken down. The victims represent the largest class of creditors asserting claims in the Archdiocese's Chapter 11 bankruptcy proceedings. This means that the claims will be back in court, with victims seeking to expand the assets that are considered part of the bankruptcy estate, while the Archdiocese seeks to assert defenses to reduce the number of claims eligible for compensation.

Drafts Of Proposed Egyptian Constitution Released

According to Ahram Online, two separate drafts of a proposed constitution for Egypt have been released during the last week. The drafts, while criticized from various sides, do reflect compromises on some issues worked out between secularists and Salafists. The full text of "Part I, State and Society" as reflected in the most recently released draft has been published in English translation by Daily News Egypt. Among the proposed provisions are the following:

Article 2
Islam is the state religion, its official language Arabic, and the principles of Islamic Shari’a are the main source of legislation.

Article 3
For Egyptian Christians and Jews, the principles of their religious laws are the main source of legislation in personal and religious matters as well as in the selection of their spiritual leaders.

Article 4
Al-Azhar is an independent Islamic body and it alone addresses its internal affairs. Its scope covers the Muslim nation and the entire world. It spreads religious studies and the call to Islam. The state guarantees sufficient funds for it to achieve its goals. The law determines the method for selecting Al-Azhar’s Grand Imam, who shall be independent and cannot be removed from office.

The opinion of Al-Azhar’s Council of Grand Scholars shall be taken in matters related to Islamic Shari’a.....

Article 10
The state is obliged to sponsor and protect ethics and public morals, empower authentic Egyptian traditions, take into account a high level of nurturing, religious and patriotic values, scientific facts, Arab culture, the historical and cultural heritage of the people, as regulated by the law....

Article 24
The state is obliged to revive and encourage the religious endowments system.

The law regulates religious endowments, determines the procedures for founding and managing them, investing them, and distributing their returns on beneficiaries as per the terms of the endowers.

Challenge To County's Prayers and In God We Trust Posting Dismissed When Plaintiff Fails To Appeaar

In Wood County, Texas yesterday, a state trial court dismissed a lawsuit that had been brought challenging the County Commissioners' routine opening of their sessions with prayer and seeking removal of the "In God We Trust" motto prominently displayed in the county commissioners' meeting room. Plaintiff Charles Scott said he is a devout Christian and believes that elected officials cannot honor the word of God if they also honor the Constitution's freedom of religion. According to KLTV News, the court dismissed the case for lack of evidence when Scott failed to appear in court. Scott told reporters that he was unable to go to court because the Lord did not provide him with a means to get there.

Tuesday, October 16, 2012

Kenyan Court Upholds High School's Ban on Hijabs

Last month, in Republic v. The Head Teacher, Kenya High School, (High Ct. Kenya, Sept. 18, 2012), the High Court in Narobi, Kenya upheld the uniform requirements of Kenya High School which bar Muslim girls from wearing the hijab. Among other things, plaintiffs argued that the ban violated provisions of Kenya's Constitution that assure equality before the law and which protect freedom of religion and bar religious discrimination. In rejected plaintiff's arguments, the court said in part:

The significant and critical role played by standardized dress codes and observance of rules in controlled environments... cannot be overemphasized.... In my view, the most important role played by a standardized school uniform is that it creates uniformity and visual equality that obscures the economic disparities and religious backgrounds of students who hail from all walks of life.

If the court were to allow the applicant’s quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment. This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-coloured religious attires of all shapes and sizes which the school administrators will not be in a position to resist.... Such an eventuality should be avoided at all costs since it is in the public interest to have order and harmonious co-existence in schools....

It is important to bear in mind that the Republic of Kenya is a secular State.... [A]llowing the applicant’s prayer in this motion would in my opinion be tantamount to elevating the applicant and their religion to a different category from the other students who belong to other religions. This would in fact amount to discrimination of the other students who would be required to continue wearing the prescribed school uniform.

Kenya's Daily Nation today reports on the decision.

Vatican- Equatorial Guinea Sign Accord

Zenit reports that last Saturday an official accord was signed between the Holy See and the Republic of Equatorial Guinea recognizing the juridical personality of the Catholic Church and Church institutions. The agreement contains 19 articles and a protocol, and deals with issues such as canonical marriage, places of worship and spiritual care of the sick and imprisoned. The government of Equatorial Guinea also announced the signing of the agreement.

New Texas-Focused Religious Advocacy Group Is Launched

A new religious advocacy organization began to operate last week, as Liberty Institute announced the launch of Texas Values. The new, state-focused organization "stands for biblical, Judeo-Christian values" in Texas, emphasizing religious liberty, families and human life. A link to the new group's website has been added to the Religion Clause sidebar's listing of Advocacy Groups.

Bhutan Bans Public Religious Events For 6 Months Before Elections

AP reported yesterday on the action of the Election Commission in the small, largely Buddhist nation of Bhutan banning public religious events from Jan. 1, 2013 until Parliamentary elections (expected to be held in June 2013) are completed. Designed to prevent the mixing of religion and politics, the Commission's Oct. 1 Notification (full text) says in part:

The Constitution of the Kingdom of Bhutan provides for the political system in Bhutan to be secular where Religion is elevated to the higher pedestal through the declaration: “Religion shall Remain Above Politics”....

We are hopeful that with your Prayers and Blessings, the conduct of the Second Parliamentary Elections in early 2013 will be smooth and peaceful as the First. However, as a safety and preventive measure the ECB seeks the kind indulgence and the support of the Religious Communities in the Kingdom to schedule public events to be carried out only after the Parliamentary Elections are completed.

Monday, October 15, 2012

Israeli Court On Procedural Grounds Refuses To Order YouTube To Remove Anti-Muslim Video

Times of Israel reports that the District Court in Jerusalem today rejected a petition by United Arab List and a group of Arab public figures seeking an order to require Google to remove from YouTube Israel the trailer for the controversial video "The Innocence of Muslims." While noting that removing the video from YouTube would not prevent people accessing it on other sites, the basis for the court's decision was a procedural one. YouTube was not included as a defendant in the case. Only its parent, Google, Inc., was named in the lawsuit.

Controversial Historian Raises Question of LDS Church Influence Over Romney's Decisions

Vanity Fair today carries an article by Michael Quinn, a controversial historian of the Church of Jesus Christ of Latter Day Saints, titled When Mormons Go To Washington. It argues that

Though Mitt Romney and his supporters invoke J.F.K.’s 1960 talk, most Mormons do not believe in the America of which Kennedy spoke. He described a nation “where no public official either requests or accepts instructions on public policy from” any “ecclesiastical source.” By contrast, L.D.S. politicians (both Democrats and Republicans) have sought instructions from their church’s leaders for more than a century. Republican officeholders have been most susceptible to such political “counsel,” while L.D.S. Democrats have often objected to it—sometimes stridently.

Quinn goes on to chronicle a notable exception who strongly resisted Church pressure-- Utah Republican Senator Reed Smoot, and quotes a Romney assertion that he would never expect a call from the L.D.S. Church president, because the obligation of national officials is to the nation. Quinn, who was excommunicated from the LDS Church in 1993, ends his article with these tendentious questions:

Is there any evidence that L.D.S. headquarters has abandoned its interest in influencing the decisions of L.D.S. officeholders in Washington, D.C.? Have Mormon Republicans departed from their historical patterns of embracing political direction from the L.D.S. Church hierarchy? Is Mitt Romney an unwavering statesman who is resistant to such pressures?

Court Rejects Name Change To "ChristIsKing"

In Matter of Nawadiuko, (City of NY Civil Ct., Oct. 1, 2012), a New York trial court denied an application by a family to change their name from Nwadiuko to "ChristIsKing". The court identified two concerns:

To permit this name change would be placing unwitting members of the public including public servants in the position of having to proclaim petitioners' religious beliefs which may or may not be in agreement with that person's own equally strongly held but different beliefs....

... [P]etitioner parents were both born in Nigeria. Twelve Nigerian states have adopted Sharia law which does recognize blasphemy as a crime and has some severe punishments depending on the level of the blasphemy. If petitioners returned to an area of Nigeria enforcing Sharia law, members of the Islamic faith calling petitioners' name in those areas might be committing blasphemy under Sharia law subjecting themselves to some degree of punishment.

The court noted that the family still has the common law right to change their names without obtaining a court order, but that "in post 9-11 America, this right may be more available in theory than in practice.... Security concerns now require consistency between a person's name on a birth certificate, driver's license, passport, marriage licenses, social security cards and other common everyday forms of identification issued by various levels of government." Volokh Conspiracy has more on the case.

Tomorrow Will Be Pro-Life Day of Silent Solidarity In Schools

According to an ADF press release, tomorrow is the date set for this year's Pro-Life Day of Silent Solidarity. The day is marked by participating students at schools in the U.S. and elsewhere wearing red tape displaying the word "LIFE" over their mouths or around their arms. With their teachers' permission, they also remain silent throughout the day to demonstrate their concern for what they describe as the silenced voices of millions of babies through abortion. ADF has prepared a Legal Memorandum outlining students' rights to participate in the event.

Sunday, October 14, 2012

Recent Prisoner Free Exercise Cases

In Davis v. Powell, 2012 U.S. Dist. LEXIS 144067 (SD CA, Oct. 4, 2012), a California federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 144072, July 25, 2012), and permitted a Muslim inmate to proceed with his free exercise and RLUIPA claims growing out of a temporary total ban on Islamic prayer oil, and his equal protection claim against one defendant for instituting a policy restricting religious items to quarterly packages.

In Santos v. Caudle, 2012 U.S. Dist. LEXIS 144628 (MD PA, Oct. 5, 2012), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that his kosher diet was wrongly suspended for 90 days.

In Washington v. Brown, 2012 U.S. Dist. LEXIS 145550 (ED CA, Oct. 5, 2012), a California federal district court, in an inmate's suit for monetary damages under RLUIPA, held that "based on ... the lack of any allegations ... suggesting that the denial of his religious diet would lead in the aggregate to a substantial effect on interstate commerce, the court concludes that plaintiff's claims do not come within the Commerce Clause underpinnings of RLUIPA." The magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 120950, Aug. 24, 2012).

In Rowe v. Lemon, (IN App., Oct. 9, 2012), and Indiana appellate court held that the state had not shown as a matter of law that an inmate who adhered to Identity Christianity lacked sincere religious reasons for requesting a kosher diet, though the court described his claim as "arguably ... eyebrow-raising." It denied summary judgment to either side, concluding that issues of fact remain.

In Elfand v. County of Sonoma, 2012 U.S. Dist. LEXIS 146179 (ND CA, Oct. 9, 2012), a California federal district court dismissed on qualified immunity grounds a Jewish inmate's complaints over delays in responding to his requests for religious accommodation, including his request for kosher meals.

In Miles v. Moore, 2012 U.S. Dist. LEXIS 147451 (ED VA, Oct. 10, 2012), a Virginia federal district court dismissed plaintiff's complaint that (before recent amendments to prison rules) inmates were only allowed to sign up for religious programs during an open enrollment period once a quarter, which he missed because he was in isolation. The court held his request for injunctive relief is moot and damages are not recoverable under RLUIPA.

In Pittman-Bey v. Clay, 2012 U.S. Dist. LEXIS 146994 (SD TX, Sept. 19, 2012), a Texas federal magistrate judge recommended permitting an Hanafi Muslim inmate to move ahead with his 1st Amendment damage claim (other than for emotional damges) for denying him Ramadan meals. Under now-amended rules, Ramadan meals were not allowed to inmates who did not also attend Jumah services. Hanafi teachings barred plaintiff from attending Jumah services while in prison.

In Payne v. Lucas, 2012 U.S. Dist. LEXIS 146982 (D SC, Oct. 12, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 147364, July 19, 2012) and dismissed a pre-trial detainee's request for a vegan diet and for a specific Catholic priest to be added to his visitor list.

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.

Saturday, October 13, 2012

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.