British Court Says Employer Breached Contract In Disciplining Christian Employee For Facebook Remarks

In Smith v. Trafford Housing Trust, (EWHC, Nov. 16, 2012), a British trial court (the England and Wales High Court Chancery Division) held that a non-profit organization that owns rental properties across the Borough of Trafford was in breach of contract when it demoted a Christian employee because of Facebook postings he made opposing performing of same-sex marriages in churches. The housing trust had argued that their employee, by making the posting, violated its employee code of conduct and its equal opportunity policy. Rejecting those contentions, Mr. Justice Briggs wrote in part:

I do not consider that any reasonable reader of Mr Smith’s Facebook wall page could rationally conclude that his two postings about gay marriage in church were made in any relevant sense on the Trust’s behalf....

The prohibition on the promotion of the political and religious views in the Code of Conduct did not, as a matter of interpretation and application, extend to Mr Smith’s Facebook wall....

Mr Smith’s use of his Facebook involved his work colleagues only to the extent that they sought his views by becoming his Facebook friends, and that did not detract to any significant extent from the essentially personal and social nature of his use of it as a medium for communication.

BreakingNews.ie and The Register both report on the decision.

USCIRF Urges Obama To Raise Religious Freedom Issues On Visit To Burma

On Saturday, President Obama leaves on a 4 day trip to Thailand, Burma and Cambodia. (USA Today).  On Wednesday, in advance of the trip, Katrina Lantos Swett, Chair of the U.S. Commission on International Religious Freedom wrote the President urging him to raise with Burma issues of religious freedom and ethnic and communal violence. The letter (full text) particularly emphasizes the restrictions and violence faced by the Rohingya Muslim minority, as well as the persecution of ethnic minority Chin Christians in the states of Kachin and Shan.

Damage Award Denied To Father Who Objected To Foster Care Placement That Violated Children's Religious Training

In BK v. Toumpas, (D NH, Nov. 14, 2012), a New Hampshire federal district court rejected a Hindu father's claim for damages against state child welfare officials for placing his 3 minor children in temporary foster care with families that disrespected the children's religious upbringing by serving them beef and taking them to Christian religious services. The court held that defendants had qualified immunity because any unconstitutionality of their actions would not have been clear to a reasonable official.

Christian Employee's Title VII Objections To Ramadan Accommodation Dismissed

In Ross v. Colorado Department of Transportation, (D CO, Nov. 14, 2012), a Colorado federal district court dismissed a Christian employee's Title VII claims for hostile work environment, failure to accommodate, discrimination, and retaliation. Plaintiff complained that his religious rights were infringed when a staff appreciation luncheon was rescheduled so that it would not take place during Ramadan, and when unit employees were invited by e-mail to have bagels and cream cheese in the cafeteria to mark the end of Ramadan. He contended that the Department was accommodating to Muslim proselytization and practices in the workplace. The court ordered further briefing on defendant's 11th Amendment defense to constitutional claims that were also asserted.

Obama Sends Best Wishes For Diwali

Earlier this week, on Tuesday, Hindus, Jains, Sikhs and some Buddhists celebrated Diwali – known as the festival of lights.  On Tuesday, the White House released a statement (full text) from the President extending holiday wishes to all those observing the holiday. The statement said in part:

Earlier this year, we were reminded of the evil that exists in the world when a gunman walked into the Sikh gurdwara in Oak Creek, Wisconsin and opened fire.  In the wake of that horrible tragedy, we saw the resilience of a community that drew strength from their faith and a sense of solidarity with their neighbors, Sikh and non-Sikh alike.  We also saw compassion and love, in the heroic actions of the first responders and the outpouring of support from people across the country.  Out of a day of sadness, we were reminded that the beauty of America remains our diversity, and our right to religious freedom.

Appeal Planned In Case Upholding Religious Instruction In Australian State's Schools

The Australian reports today that parents will appeal a decision handed down last month upholding the Special Religious Instruction program in the public schools in the Australian state of Victoria. Religious bodies offer 30 minutes per week of classes. Most of the classes, offered in two-thirds of the state's schools, are offered by the Christian group ACCESS ministries. Parents can choose whether or not their children will attend. Last month in Aitken v. State of Victoria – Department of Education & Early Childhood Development, (VCAT, Oct. 18, 2012), the Victorian Civil and Administrative Tribunal rejected a challenge by parents of children at 3 primary schools who contended that the way the program is offered amounts to direct discrimination against their children in violation of the Equal Opportunity Acts of 1995 and 2010. In those schools, most of the SRI classes were Christian, but one was Bah'ai. The court held:

Parliament authorised the provision of SRI in Victoria more than 60 years ago. That law was re-enacted 6 years ago. Parliament has given parents the opportunity to permit their children to attend SRI in the normal school hours, in schools where it is provided. Instruction may be given in different religions. SRI is not compulsory and parents have a choice whether their children attend. If they do not, they engage in useful, non-curriculum activities under teachers’ supervision. The SRI program has been implemented by teachers at the three schools in a thoughtful manner. Attendance by a child at SRI does not, necessarily, indicate that the child, or the parents, hold any particular religious beliefs. The evidence did not establish that the children, who did not attend SRI at the three schools, were treated in any discriminatory manner.

Plaintiff Sophie Aitken, speaking of the decision to appeal, said:

I would like to see a situation where all children receive proper teacher-run education about different religions and world views, as a way to enhance understanding and tolerance between people. Instead we have this divisive situation where children as young as five are being separated based on their religious beliefs.

Data Released On Tribal Taking Of Eagles and Hawks For Religious Purposes

An environmental group has obtained from the U.S. Fish and Wildlife Service the 2010 and 2011 data on the number of eagles and red tailed hawks taken for religious purposes by the Hopi Indian tribe under government permits.  Fly Rod and Reel reports that the data was obtained under Freedom of Information Act requests filed by Public Employees for Environmental Responsibility. The Hopis took 11 golden eagles and 1 red tailed hawk in 2010. They took 18 golden eagles and red tailed hawks in 2011. These were taken mostly from Navajo lands in northeastern Arizona with Navajo permission. Since 1986, they have taken a total of 495 golden eagles and 175 red-tailed and other hawks.  The U.S. Fish and Wildlife Service issues the permits under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act.

FFRF Sues IRS Over Non-Enforcement of Electioneering Restrictions On Churches

The Freedom From Religion Foundation yesterday announced that it has filed suit in a Wisconsin federal district court against the Internal Revenue Service challenging its failure to enforce against churches and religious organizations the electioneering restrictions applicable to tax-exempt non-profit organizations under Section 501(c)(3) of the Internal Revenue Code.  The Internal Revenue Code imposes special procedural provisions for instituting a church tax inquiry, and rule changes needed to properly implement those procedures have been pending for over 3 years. (See prior posting.) The complaint (full text) in Freedom From Religion Foundation, Inc. v. Shulman, (WD WI, filed 11/14/2012), contends that the non-enforcement policy results in preferential treatment of churches and other religious organizations in violation of the Establishment Clause. The complaint asks the court to order the IRS to remedy the procedural problem by requiring it to designate an official who is authorized to determine when to initiate churches tax inquiries.

Group Launches 10th "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its tenth annual "Friend or Foe Christmas Campaign."  The campaign is aimed at preventing the "censoring" of Christmas.  It focuses on governmental entities and businesses that use the term "holiday" rather than "Christmas" in publicity and advertisements, or which refer to a "holiday tree" or "holiday parade." It also focuses on bans on religious Christmas carols or wearing of red and green in schools. The group makes available  legal memos on the public and workplace celebration of Christmas and and complies a "Naughty and Nice" list of retailers who either recognize Christmas or who instead use more generic terms.

Australian Prime Minister Recommends Royal Commission On Institutional Responses To Child Abuse

At a press conference (full text) on Monday, Australia's prime minister Julia Gillard announced that she will recommend to the Governor-General that a Royal Commission be appointed to inquire into institutional responses to allegations of child abuse in Australia. The investigation will be aimed not just at the Catholic Church, but at all organizations and agencies that have been involved in caring for children. AAP reports that Australia's Cardinal George Pell welcomed the inquiry, but cautioned that the Catholic Church should not be made a scapegoat. New South Wales Premier Barry O'Farrell took strong issue with a statement made by Cardinal Pell that priests who hear confessions from other priests who have committed child sex abuse remain bound by the Seal of Confession. Pell advised priests to avoid hearing confessions from colleagues where they suspect abuse to prevent the problem of being bound to secrecy. The Australian reports that government opposition leader Tony Abbott also called for priests to report abuse even if they learned of it in confession. [Thanks to James S. Kolan for the lead.]

Canadian Court Invalidates Meeting of Sikh Temple, Finding Inadequate Notice

In Grewal v. Guru Nanak Sikh Gurdwara Society, (BC CA, Nov. 2, 2012), the Court of Appeal for the Canadian province of British Columbia upheld a lower court ruling that invalidated a resolution changing the qualifications for election to the Sikh temple's Executive Committee. The case was triggered by a dispute between "old guard" members of the Gurdwara, many of whom are "non-baptized" Sikhs, and younger members who are baptized and who were elected to the Executive Committee in 2009. The Sikh Youth Executive obtained passage by members in 2010 of new provisions for giving notice of Gurdwara meetings. Instead of giving notice by mail, effective notice could be given by publication in English language and Punjabi language newspapers with a circulation of over 10,000, plus publication on the Gurdwara's website and posting a notice on a bulletin board in the hall of the temple.  At the 2011 meeting, called using this procedure, members changed the qualifications for election to the Executive Committee. Now only baptized Sikhs were eligible.

In invalidating that change, the court concluded that the notice given for the meeting did not meet the requirements of province's Society Act, Sec. 60:

There was evidence that certain of the newspaper notices were contained in papers not circulated but given away at certain locations.  It seems to me that it would be difficult to demonstrate that such a methodology could ever be the type of notice contemplated to be given to members of a society pursuant to s. 60 of the Act....  A “giveaway” paper is obviously a wholly inadequate vessel for the giving of proper notice.

The court also suggested, without deciding, that it was not adequate to give notice in papers having a circulation as low as 10,000 when the Society had over 30,000 members. Surrey Now reports on the decision.

Jamaican Government Bans Preaching On Public Buses

In the Caribbean island nation of Jamaica, the government operated transit system has banned the practice of preaching to captive audiences on buses after complaints from some passengers.  Both AP and Jamaica Gleaner report that a directive has been given to drivers to politely tell preachers that they must stop their evangelizing.  Blind lay preacher Robert Lawson argues that the new order infringes his freedom of speech and religion.

Supreme Court Denies Cert. In Public School Released Time Case

The U.S. Supreme Court yesterday denied certiorari in Moss v. Spartanburg County School District, (Docket No. 12-415, cert. denied 11/13/2012). (Order List.) In the case, the 4th Circuit upheld Spartanburg's released time program that permits high school students to receive two academic credits for off-campus religious instruction offered by a private Bible school. (See prior posting.) Becket Fund issued a press release on the court's refusal to review the case.

Evidence of Religious Beliefs May Negate Intent To Distribute Marijuana

In United States v. Martines, 2012 U.S. Dist. LEXIS 160719 (D HI, Nov. 8, 2012), defendant, who was charged with conspiracy to manufacture and possess with intent to distribute over 100 marijuana plants, sought a continuance in order to secure the testimony of an expert on the Rastafarian religion.  A Hawaii federal district court denied the motion insofar as it related to a defense under the Religious Freedom Restoration Act because the government advanced a sufficiently compelling interest to overcome a RFRA defense. However the court granted the motion to allow the defendant to "introduce evidence of his Rastafarian beliefs, including the expert testimony ..., in order to negate the Government's evidence of his intent to distribute."

7th Circuit: Police Department Employee Was Offered Adequate Religious Accommodation

In Porter v. City of Chicago, (7th Cir., Nov. 8, 2012), the U.S. 7th Circuit Court of Appeals affirmed the dismissal of a claim by an employee of the Chicago police records service division that the city failed to accommodate her religious practices. Plaintiff wanted Sundays off because of her church involvement. The court concluded that the city met its obligations under Title VII of the 1964 Civil Rights Act when it instead offered plaintiff a later Sunday shift that would have permitted her to attend church on Sunday mornings. The court also rejected her retaliation and disparate treatment claims.

Violent Clashes Break Out Over Control of California Sikh Temple

For several years, two factions have been competing for control of a Sikh Temple in California. A 2008 election brought in reform directors for the Tierra Buena Gurdwara in Yuba City. (See prior posting.) Last September, 5 of the 73 board members attempted to force new elections, but a Sutter County (CA) court refused to order them.  Now some members apparently are resorting to self-help. PTI reports that on Sunday a violent clash between two groups broke out in the Gudwara parking lot as board members were leaving after a board meeting. Board members were attacked with shovels, broom handles and sticks as two groups of over 30 people clashed. The Sutter County Sheriff's Office is investigating.

Human Rights Council Elected; Critics Concerned With Human Rights Records of Many

UN Watch reports on the 18 nations, including the United States, that were elected to the U.N.'s Human Rights Council yesterday. In an evaluation published prior to the election, U.N Watch rated 7 of the countries ultimately elected as not qualified based on their human rights and U.N. voting records. The 7 are: Cote d’Ivoire, Ethiopia, Gabon, Kazakhstan, Pakistan, UAE, Venezuela. The group rated two others-- Kenya and Sierra Leone-- as questionable.

Tunisian Government Struggles With Salafists Over Control Of Mosques

A New York Times article posted yesterday explores the struggle between the new moderate government of Tunisia and more radical Salafists, saying in part:

Revolution freed the country’s estimated 5,000 officially sanctioned mosques from the rigid controls of the previous government, which appointed every prayer leader and issued lists of acceptable topics for their Friday sermons.

That system pushed a moderate, apolitical model of Islam that avoided confronting a dictator. When the system collapsed last year, ultraconservative Salafis seized control of up to 500 mosques by government estimates. The government, a proponent of a more temperate political Islam, says it has since wrested back control of all but 70 of the mosques, but acknowledges it has not yet routed the extremists nor thwarted their agenda.

Suit On Discrimination Against Charter School Moves Ahead In Part

In Pocono Mountain Charter School v. Pocono Mountain School District, (MD PA, Nov. 8, 2012), a publicly funded charter school, along with students and parents, claimed that a Pennsylvania school district imposed harsher conditions on the school out of racial and religious animus. Most of the students in the school are African-American or Hispanic, and the school's former CEO was associate pastor of Shawnee Tabernacle Church, which several trustees attended as well. This opinion grows out of an amended complaint filed after a 3rd Circuit decision in the case. The court dismissed claims under the free exercise clause of the Pennsylvania constitution because plaintiffs raised only the freedom of worship rights of the school's officers and trustees, not their own rights. However the court permitted plaintiffs to move ahead with claims of religious, racial and national origin discrimination under the equal protection clause of the Pennsylvania constitution.  The court also permitted individual plaintiffs to proceed under Title VI of the 1964 Civil Rights Act on their racial and national origin discrimination charges, but held that the charter school itself could not sue under Section 1983.

Recent Articles of Interest

From SSRN:

• Sylvie Langlaude, Lautsi v. Italy: Coercion and Lack of Neutrality in the Classroom?, (6 Annuaire Droit et Religions 601-617, 2012-2013, Forthcoming).
• Jason N. Summerfield, Comments on the Potter's Field: Burial Policy in New York City, (January 1, 2012).
• Mark A. Hicks, The Art of Ecclesiastical War: Using the Legal System to Resolve Church Disputes, (Liberty University Law Review, Vol. 6, p. 531, 2012).
• Iain T. Benson, Two Errors in Relation to Respecting Religious Rights: Driving a Wedge between Religion and Ethics/Morals and Treating All Kinds of Religious Employers the Same, (August 1, 2012).
• William S. Brewbaker, Government for the Time Being, (Matters of Faith, Austin Sarat, ed., Cambridge University Press, 2012).
• Ronald J. Colombo, The Naked Private Square, (Hofstra Univ. Legal Studies Research Paper, Oct. 21, 2012).
• Nahel N. Asfour, Law and Literature: Jewish and Christian Models, (Pólemos: Journal of Law, Literature and Culture, Berlin: De Gruyter, Vol. 6, No. 2, pp. 263-280, 2012).
• Saadiah Mohamad, Azlin Alisa Ahmad and Ahahida Shahimi, Innovative Islamic Hedging Products: Application of Wa'd in Malaysian Banks, (Capital Markets Review, Vol. 19, No.1 & 2, pp. 33-51, 2011).
• Nassef Manabilang Adiong, Ideology that Spawns Islamist Militancy, (in Frank Shanty (Ed.), Key Issues Impacting Counterterrorism Strategy, Vol. 1: Combating Modern Terrorism (1968-2011), pp. 253-258, Santa Barbara, CA: ABC-CLIO).
• Peter K. Yu, The Confucian Challenge to Intellectual Property Reforms, (WIPO Journal, Vol. 4, 2012).

From SmartCILP:

• John M. Bickers, Standing on Holy Ground: How Rethinking Justicability Might Bring Peace to the Establishment Clause, 60 Cleveland State Law Review 415-459 (2012).
• Marc Rohr, Can the City Council Praise the Lord? Some Ruminations About Prayers At Local Government Meetings, [Abstract], 36 Nova Law Review 481-495 (2012).