Court Upholds Santa Monica's Ban On Park Christmas Display

AP reports that a California federal district court yesterday denied a preliminary injunction in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19 2012).  The suit involved a challenge to a Santa Moncia (CA) ordinance that prevented a group from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. (See prior posting.) In recent years, controversy has surrounded holiday displays in the park after secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. According to AP:

The judge, however, said Santa Monica proved that it banned the displays not to squash religious speech but because they were becoming a drain on city resources, destroying the turf and obstructing ocean views. Churches can set up unattended displays at 12 other parks in the city with a permit and can leaflet, carol and otherwise present the Christmas story in Palisades Park when it is open, she said.

UPDATE: The opinion in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19, 2012) is at 2012 U.S. Dist. LEXIS 167525.

Obama Speaks In Burma About Religious Freedom

As part of his trip to Burma (Myanmar), President Obama spoke today at the University of Yangon in Rangoon. (Full text of speech.) His speech included a plea for the country to deal with the ethnic-religious violence faced by the Rohingya Muslim minority, and the persecution of ethnic minority Chin Christians in Kachin state:

And this truth leads me to the third freedom that I want to discuss:  the freedom to worship -- the freedom to worship as you please, and your right to basic human dignity.

This country, like my own country, is blessed with diversity.  Not everybody looks the same.  Not everybody comes from the same region.  Not everybody worships in the same way.  In your cities and towns, there are pagodas and temples, and mosques and churches standing side by side.  Well over a hundred ethnic groups have been a part of your story.  Yet within these borders, we’ve seen some of the world’s longest running insurgencies, which have cost countless lives, and torn families and communities apart, and stood in the way of development.

No process of reform will succeed without national reconciliation.  (Applause.)  You now have a moment of remarkable opportunity to transform cease-fires into lasting settlements, and to pursue peace where conflicts still linger, including in Kachin State.  Those efforts must lead to a more just and lasting peace, including humanitarian access to those in need, and a chance for the displaced to return home.

Today, we look at the recent violence in Rakhine State that has caused so much suffering, and we see the danger of continued tensions there.  For too long, the people of this state, including ethnic Rakhine, have faced crushing poverty and persecution.  But there is no excuse for violence against innocent people.  And the Rohingya hold themselves -- hold within themselves the same dignity as you do, and I do.

National reconciliation will take time, but for the sake of our common humanity, and for the sake of this country’s future, it is necessary to stop incitement and to stop violence.  And I welcome the government’s commitment to address the issues of injustice and accountability, and humanitarian access and citizenship.  That’s a vision that the world will support as you move forward.

(See prior related posting.)

Church With Police Hosts Operation Safe Surrender

AP reports that last week, Greater Friendship Baptist Church in Daytona Beach, Florida for the third time hosted Operation Safe Surrender in cooperation with law enforcement authorities.  The program allows those wanted by the police to surrender at the church, get an initial hearing there by closed-circuit TV with public defenders available, and for non-violent defenders get possible reduced or dismissed charges.  Clergy were also available for spiritual counseling.

Stanford Offers Religious Liberty Clinic

First Things reports that next semester Stanford Law School will become the first law school to offer students participation in a clinic that focuses on religious liberty. The Religious Liberty Clinic director is James Sonne, formerly of Ave Maria Law School.

Recent Articles of Interest

From SSRN:

• Solomon A.M. Ekwenze, The Use of the Holy Bible, the Holy Qu’Ran, Juju and Others for Oath of Office: To Fight Corruption in Nigeria, (November 11, 2012).
• Margit Cohn, Taking a Bus from Immanuel to Mea Shearim: The Role of Israel's High Court of Justice in Regulating Ethnic and Gender Discrimination in the Haredi Ultra Orthodox Sector, (November 15, 2012).
• Jon Hursh, Advancing Women's Rights Through Islamic Law: The Example of Morocco, (Berkeley Journal of Gender, Law & Justice, Vol. 27, No. 2, 2012).
• Alexandra Glynn, If You're Not Touched by Others' Pain: Natural Law, the Koran, and Three Texts from Muslim Culture, (November 11, 2012).
• Douglas M. Coulson, Persecutory Agency in the Racial Prerequisite Cases: Islam, Christianity, and Martyrdom in United States v. Cartozian, (University of Miami Race and Social Justice Law Review 2 (2012)).

From SmartCILP:

• Stacy A. Scaldo, Life, Death & the God Complex: The Effectiveness of Incorporating Religion-Based Arguments Into the Pro-Choice Perspective on Abortion, 39 Northern Kentucky Law Review 421-465 (2012).
• Symposium: One Nation Under Law. Articles by Eric Michael Mazur, Cheryl A. Sharp, Umar F. Moghul and Betsy Walters. 11 Connecticut Public Interest Law Journal 183-295 (2012).

Judge Requires Teen To Attend Church For 10 Years As Probation Condition

ABC News reports that a state trial court judge in Oklahoma has sentenced a teenager to a probation arrangement that includes a requirement that he attend the church of his choice every week for ten years. After 17-year old Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an auto crash, Judge Mike Norman imposed a deferred prison sentence. Alred had been drinking. Alred will avoid jail and have his conviction expunged after 10 years if he complies with all the probation conditions: graduating high school, wearing a drug and alcohol bracelet, attending counseling sessions, and going to church. Judge Norman has imposed a sentence of church attendance in other cases also. Alred's lawyer did not object to the sentence.

Recent Prisoner Free Exercise Cases

In Owens v. Davies County Detention Center, 2012 U.S. Dist. LEXIS 162003 (WD KY, Nov. 9, 2012), a Kentucky federal district court dismissed an inmate's complaint of delays in feeding him breakfast during Ramadan, but allowed him to proceed on his claim of retaliation for filing grievances about the issue.

In Adams v. Davenport, 2012 U.S. Dist. LEXIS 161853 (MD AL, Nov. 13, 2012), an Alabama federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 162746, Oct. 5, 2012) and dismissed claims by a Native American inmate that requiring him to cut his hair violated his religious exercise rights. The court also rejected equal protection and retaliation claims.

In Vega v. Lantz, 2012 U.S. Dist. LEXIS 163963 (D CT, Nov. 16, 2012), a Muslim inmate sued complaining that his request to be circumcised was denied, he was denied prayer oils, and Friday congregate prayer was frequently cancelled. A Connecticut federal magistrate judge held that defendants were entitled to qualified immunity on the damage claims against them, but that the case can proceed on its claims for injunctive and declaratory relief.

Greece Charges Play Producers and Cast With Blasphemy

In Greece on Friday, the public prosecutor's office charged the organizers, cast and producers of the play Corpus Christi with "insulting religion" and "malicious blasphemy."  The play, by American playwright Terrence McNally depicts Jesus and his apostles as gay and living in Texas.  According to Reuters and Greek Reporter, the unusual criminal charges were filed after a lawsuit by Bishop Seraphim of Piraeus.  Weeks of protest outside the Hytirio Theater in downtown Athens by priests and right-wing groups such as the ultra-nationalist Golden Dawn party had caused the play to be cancelled.

Charter School Sponsor Sues Insurance Company Over Costs Of Establishment Clause Battle

In February 2011, the ACLU of Minnesota reached a settlement agreement with Islamic Relief USA and Minnesota's commissioner of education in a long-running lawsuit accusing a charter school, TiZA, of violating the establishment clause by promoting Islam. (See prior posting.) Now Islamic Relief (which was TiZA's sponsor) has filed suit against an insurance company for reimbursement of $1 million in cost and fees plus the settlement payment of $267,500 it incurred. The complaint (full text) in Islamic Relief USA v. Minnesota School Boards Association Insurance Trust, (D MN, filed 11/13/2012) alleges that the insurance company breached the insurance contract by refusing to provide a defense to Islamic Relief, and that the insurance company is obligated under the policy to indemnify Islamic Relief for the amounts it was required to pay as damages for alleged violations of civil rights. Courthouse News Service reports on the lawsuit.

Court Enjoins Requiring Christian Publisher To Cover Contraceptives Seen As Abortifacients In Health Care Plan

In Tyndale House Publishers, Inc. v. Sebelius, (D DC, Nov. 16, 2012), the federal district court for the District of Columbia issued a preliminary injunction  barring the federal government from enforcing a portion of the Affordable Care Act contraceptive coverage mandate against a company that publishes Bibles and other Christian books. The court held that plaintiffs would likely succeed on the merits of showing that their rights under the Religious Freedom Restoration Act would be infringed by requiring their health plans to cover contraceptive methods that the company and its owners consider abortifacients-- Plan B, ella and intrauterine devices.

The court held, first, that the publishing company has standing::

when the beliefs of a closely-held corporation and its owners are inseparable, the corporation should be deemed the alter-ego of its owners for religious purposes…. Tyndale [also]  has standing to assert its owners’ free exercise rights under the third-party standing doctrine….

Turning to the substance of plaintiffs’ claims under the Religious Freedom Restoration Act, the court concluded that the contraceptive coverage mandates substantially burdens plaintiffs’ free exercise rights:

Because it is the coverage, not just the use, of the contraceptives at issue to which the plaintiffs object, it is irrelevant that the use of the contraceptives depends on the independent decisions of third parties.  And even if this burden could be characterized as “indirect,” the Supreme Court has indicated that indirectness is not a barrier to finding a substantial burden….

The government argued that even if there was a substantial burden, it had a compelling interest in preventing the health problems associated with unintended pregnancies. The court held, however, that since plaintiffs object only to a limited number of contraceptives, and will still provide many others, it is not clear how excluding that limited number will interfere with the government's interest.  It also pointed out that other exemptions in the law exclude 191 million employees from coverage by the mandate.

Alliance Defending Freedom issued a press release announcing the decision, and the Washington Post reported on the decision.

British Court Finds Priest Sexual Abuse Caused Only Limited Damage To Claimant

In Raggett v. Society of Jesus Trust 1929 for Roman Catholic Purposes, (EWHC, Nov. 9, 2012), a British trial court (England and Wales High Court Queen's Bench Division) was faced with the question of the amount of damages to award to claimant who had been the victim of "a sustained course of sexual abuse" (but not "penetrative activity") by a Catholic priest beginning in 1970 when plaintiff was 11 years old and continuing until he was 15. Claimant, who was a law school graduate, sought damages in excess of £4 million.  He claimed that:

the psychiatric damage resulting from the abuse caused him difficulties in forming and maintaining personal relationships, in particular with his first wife. He also contends that the personality change caused by the abuse had a seriously detrimental effect on his ability to work as a solicitor. In particular, it adversely affected his ability to relate to people in positions of authority and to exercise appropriate judgment and self-control in his dealings with them. It is said that it also caused the claimant to indulge in 'risk taking' behaviour, to drink excessively and to use illicit drugs. It is claimed that the personality change resulted in the loss of his employment with Pinsents and his inability to obtain alternative employment as a lawyer.

The court in a 350 paragraph opinion, however, awarded him only £54,923.03, concluding that:

the psychological effects of the sexual abuse were confined to a period of about eight years from the start of the abuse until the beginning of the claimant's third year at University. They would have been most acute during the period of four years or so when the abuse was continuing. Thereafter, I find that the claimant's problems were caused mainly by his harmful use of alcohol, coupled with his abnormal personality traits. I do not consider that the abuse played any significant role in the claimant's performance at work, the loss of his legal career, his excessive drinking, his drug taking or his difficulties with relationships.

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.