Tuesday, December 04, 2012

Interview With Convicted Amish Beard-Cutting Attacker Published

The Daily yesterday published a long interview with Bergholz Amish sect leader Sam Mullet who was convicted in September on hate crime charges stemming from beard-cutting attacks on a rival Amish group. (See prior posting.) Mullet is in prison awaiting a January sentencing hearing. The interview, conducted at the Northern Ohio Correctional Center, is wide ranging. Summarizing the interview, The Daily said:
Over the course of several hours, [Mullet] described the challenges of adjusting to prison, his perspective on the beard-cutting attacks and life inside the breakaway Amish sect where he was accused of sexually preying on women and tormenting men with harsh punishments.
On the matter of the beard cuttings, Mullet told The Daily that he was wrongly convicted — that a group of his followers, including several of his children, hatched the scheme on their own.

Israeli Civil Court Asserts Jurisdiction Over Same-Sex Couple's Divorce

Jerusalem Post reported yesterday that a Tel Aviv Family Court has broken new legal ground by granting a divorce to a same-sex couple who had married in Canada but lived in Israel. In an earlier case, Israel's Supreme Court had ordered registration of these same-sex marriages. Normally under Israeli law, only religious courts have jurisdiction over divorces. However the rabbinical courts, which do not recognize same-sex marriage, had, at least so far, failed to rule in the case. The Tel Aviv court said that it would violate the couple's fundamental rights and liberties to prevent them from dissolving a marriage that the state had recognized.  The civil court held that it could exercise jurisdiction over divorces when the rabbinical courts failed to do so.

Turkey Fines TV Station For Insulting Religious Beliefs Through Broadcast of Simpsons Episode

In Turkey, the Supreme Board of Radio and Television (RTUK), the national broadcasting regulator, has fined Turkish broadcaster CNBC-E the equivalent of $30,000 (US) for broadcasting an episode of The Simpsons found to be insulting to religious beliefs. Today's London Telegraph reports that the offending episode is the Halloween special "Treehouse of Horrors XXII." Among other things, the episode shows the Devil serving coffee to God; God and the Devil appearing in human bodies; and the burning of the Bible.

Appeals Court Removes Court Martial Judge For Bias In Ft. Hood Shooter Case

As reported by the Washington Post yesterday, accused Fort Hood shooter Maj. Nidal Hasan won a significant victory yesterday in his ongoing battle with a military judge who refuses to allow him to wear a beard during his murder trial. Hasan has asserted the refusal violates his rights to the free exercise of religion. (See prior related posting.)  In Hasan v. Gross, (Armed Forc. Ct. App., Dec. 3, 2012), the U.S. Court of Appeals for the Armed Forces in a per curiam opinion not only held that there was insufficient evidence to show that Hasan's beard materially interfered with the court martial proceedings, but also held that court martial judge Gregory Gross should be removed from the case because of the appearance of bias.  The court said in part:
the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.... [I]t could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged. Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings.
The court also vacated Hasan's contempt convictions and the judge's order to forcibly shave him. It said: "We need not and do not decide if and how RFRA might apply to Appellant’s beard.  Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated
anew."

Chaplain Sues Church-State Activist For Defamation, Abuse of Process

Earlier this year, a Texas state trial court dismissed a suit brought by Mikey Weinstein, founder of the Military Religious Freedom Foundation (MRFF), against former Navy chaplain Gordon Klingenschmitt, contending that Klingenschmitt was conspiring to encourage violence against him through use of "imprecatory prayers." The court concluded that Weinstein had shown no connection between the prayers and the threats and vandalism suffered by his family. (See prior posting.) Last week, Klingenschmitt reciprocated, filing suit against Weinstein and MRFF in state court in New Mexico claiming defamation and malicious abuse of process. The complaint (full text) in Klingenschmitt v. Weinstein, (NM Dist. Ct.), alleges in part:
The factual assertion or implication that Klingenschmitt’s 2009 prayers somehow incited or caused unidentified others to commit acts of vandalism including “a swastika emblazoned on their home in New Mexico, animal carcasses left on their doorstep and feces thrown at the house,” is demonstrably false in that both Mikey and Bonnie Weinstein have admitted these acts of vandalism occurred in 2006, 2007 or 2008, and therefore could not have been caused by Klingenschmitt’s 2009 prayers....
Upon information and belief, the primary motive for Weinstein and Bonnie L. Weinstein to file the lawsuit against Klingenschmitt was an illegitimate end, specifically to cause Klingenschmitt or his interests financial difficulties, to prevent Klingenschmitt from promoting his philosophy or his religious beliefs, to marginalize Klingenschmitt’s influence, goals, and impact, and to subject Klingenschmitt to the expense, delay, and distraction of protracted litigation.
In a Dec. 2 press release, Klingenschmitt announced that Weinstein had been served in the lawsuit. God and Country blog reports on the lawsuit.

Monday, December 03, 2012

French Lawyer Fined, Faces Discipline, For Alleging Judicial Religious Bias Based On Jewish Name

Digital Journal reports that in Lyon, France last week, the Lyon Bar referred lawyer Alexis Dubruel for disciplinary proceedings after Dubruel sought disqualification of a judge because of the judge's Jewish name.  Dubruel, representing a grandmother seeking to obtain visitation rights to see her granddaughter, argued that Judge Albert Levy should be disqualified for lack of impartiality. According to Dubrel:
The presiding judge whose disqualification is sought has the surname "Levy". The "Papa" of the person in this case Miss X (...) had been prosecuted for the offence of taking away a minor under 18, is named Moses (Moïse). The first page of reference for the word "Lévy" on Wikipedia says that the word is, “according to tradition, the founder of the Jewish religion, Judaism, which is sometimes called, for this reason, Mosaic, that is to say, the religion of Moses. The materiality of these findings is incontestable.
The court denied Dubrel's motion and fined him 750 Euros. According to The Algemeiner, in an earlier hearing a client of Dubruel's felt she was unfairly treated and attributed it to Levy's bias in favor of a Jewish defendant. Judge Levy has previously been the subject of anti-Semitic attacks, including threats when he investigated the far-right Front National Party and his being placed under police protection when an Islamist group threatened him.

Appeals Court Says Amish Must Abide By Consent Judgment On Sewers

In Wagler v. West Boggs Sewer District, Inc., (IN App., Nov. 29, 2012), an Indiana appeals court refused to set aside consent judgments entered into by several members of an Old Order Amish community under which they are to connect to the public sewer system and install a grinder pump despite their religious beliefs that preclude using electricity from the public grid and being on a public utility sewer.

Recent Articles and Book of Interest

From SSRN (U.S. Law):
From SSRN (Non-U.S. Legal Systems):
From SmartCILP and elsewhere:
New Book:

Federal Court Upholds Nevada's Ban On Same-Sex Marriage

In Sevcik v. Sandoval, (D NV, Nov. 26, 2012), a Nevada federal district court upheld against an Equal Protection Clause challenge the constitutionality of Nevada's ban on same-sex marriages. Nevada does recognize same-sex and opposite-sex domestic partnerships, with the parties having most, but not all, of the same rights and responsibilities as do spouses in a marriage. The court concluded that it need apply only rational basis scrutiny to Nevada's state constitutional provisions limiting marriage to heterosexual couples:
Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status....
The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.
Applying rational basis scrutiny, the court concluded that "the protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest."   The court also held that protection of Nevada's public policy is a valid reason for it to refuse to recognize same-sex marriages performed in other states.  AP reporting on the decision says that plaintiffs plan an appeal.

Sunday, December 02, 2012

State Court Says Louisiana Voucher Program Violates State Constitution

In Louisiana Federation of Teachers v. State of Louisiana, (LA 19th Dist. Ct., Nov. 30, 2012), a Louisiana trial court held that the state's voucher program unconstitutionally diverts to nonpublic schools or entities funds which the state constitution's Minimum Foundation Program allocates to elementary and secondary public schools. The court said that its decision, however, does not foreclose "establishing educational programs that are funded outside the constitutional limitations of the Minimum Foundation Program...." Ponchartrain Newspapers reports more extensively on the testimony in the case, the decision and the reaction to it.

Raelians Ask UN Human Rights Council To Investigate Switzerland's Actions Against Them

Last week, the International Raelian Movement filed a Petition (full text) with the United Nations Human Rights Council asking it to investigate Raelian charges that Switzerland, conspiring with the Vatican, has misused the European Court of Human Rights to defame the Raelian movement.  The petition reads in part:
The honor and reputation of the entire leadership of a recognized worldwide religious movement has been intentionally defamed based on a manipulation of the facts by Judge Bratza of the European Court of Human Rights in a case involving Switzerland’s refusal to permit the inoffensive poster above to be displayed in public. Underlying this betrayal of justice by Judge Bratza was a conspiracy by Switzerland and the Vatican to bizarrely label the Raelian Movement leadership as pedophiles in retaliation for its stand against clerical pedophilia worldwide and in particular in francophone countries.
The European Court decision about which the Raelians complain is attached as an appendix to their petition. The Raelian Movement also issued a press release announcing the filing of their petition.

Recent Prisoner Free Exercise Cases

In Finney v. Marshall, 2012 U.S. Dist. LEXIS 167765 (ED TX, Nov. 27, 2012), a Texas federal magistrate judge dismissed as frivolous a complaint by a Mormon inmate that he was not allowed to take Sundays off from his job in the prison kitchen.

In Allen v. Hense, 2012 U.S. Dist. LEXIS 168217 (ED CA, Nov. 26, 2012), a California federal magistrate judge dismissed a Muslim inmate's complaint that on one day during his Administrative Segregation Unit confinement he was served the regular breakfast and sack lunch instead of his religious vegetarian meal.

In Heggem v. Holmes, 2012 U.S. Dist. LEXIS 168935 (WD WA, Nov. 27, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 168936, Oct. 4, 2012) and dismissed an inmate's claims that the revocation of her alternative drug offender sentence involved retaliation because of her religious beliefs. Prior litigation had already rejected the same contentions.

In Lapine v. Vilgos, 2012 U.S. Dist. LEXIS 170011 (WD MI, Nov. 27, 2012), a Michigan federal district court rejected free exercise retaliation and equal protection claims by a Native American inmate who had a disciplinary misconduct charge for threatening behavior filed against him after he disrupted religious services because he was upset over new limits on the smudging ceremony.

In Goodson v. Clark, 2012 U.S. Dist. LEXIS 169906 (WD VA, Nov. 29, 2012), a Virginia federal district court dismissed an inmate's complaint that defendants told him that Satanism is not a religion recognized by the Department of Corrections and refused to allow him to order a Goat Head Star Amulet.

In Wall v. Wade, 2012 U.S. Dist. LEXIS 170537 (WD VA, Nov. 30, 2012), a Virginia federal district court dismissed an inmate's complaint that his rights were violated when he (along with 183 others) was removed from the Ramadan participation list for not having Islamic materials to demonstrate his religious sincerity.

In Cloyd v. Dulin, 2012 U.S. Dist. LEXIS 170100 (MD TN, Nov. 30, 2012), a Tennessee federal district court rejected a Muslim inmate's complaint that the prison's halal diet did not include real meat.

In Galdones v. Department of Public Safety, 2012 U.S. Dist. LEXIS 169824 (D HI, Nov. 29, 2012), an Hawaii federal district court dismissed without prejudice various claims by an inmate of interference with his practice of his Native Hawaiian religion and related retaliation and due process claims.

In Goodman v. Ramey, 2012 U.S. Dist. LEXIS 169264 (SD WV, Nov. 29, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 170527, May 17, 2012) and rejected an inmate's claim that his free exercise rights were violated when was disciplined for accepting a money order from the parents of another inmate who sent the money to thank him for being a "Christian brother" to their son.

Court Upholds Indiana's Marriage Solemnization Statute Over Objections of Secular Celebrant

In Center for Inquiry v. Clerk, Marion Circuit Court, (SD IN, Nov. 30, 2012), an Indiana federal district court rejected constitutional challenges to Indiana's marriage solemnization statute (IN Code 31-11-6-1).  Under the statute, clergy can obtain a license to solemnize marriages, but those certified as "Secular Celebrants" by the non-religious Center for Inquiry cannot.  The court said in part:
We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage. Additionally, the statute bears a  rational relation to the equally reasonable purpose of allowing the government to assume responsibility for the marriage regulation function without ostracizing its religious constituents. For these and all of the reasons explicated above, we find that Plaintiffs' First Amendment claim-whether grounded in Free Exercise Clause or Establishment Clause jurisprudence-does not succeed on the merits.
The court likewise rejected plaintiffs' equal protection claim. In reaching its conclusions, the court pointed out:
there are several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana: she may (1) preside at a wedding and then instruct the couple to go before one of the individuals listed in the Solemnization Statute to have the marriage solemnized; (2) become a member of the "clergy" by seeking immediate Internet ordination from the Universal Life Church; or (3) seek certification to solemnize marriages from the Humanist Society.

Saturday, December 01, 2012

Federal Court Refuses To Order Trailer of "Innocence of Muslims" Taken Down From YouTube

As reported by AP, a federal court in Los Angeles on Friday refused to grant a preliminary injunction to actress Cindy Lee Garcia who appears in the controversial film "Innocence of Muslims" and wants the trailer for the film removed from YouTube.  Garcia claims she was deceived about the film's subject matter and that her voice was dubbed over after filming. Her federal lawsuit alleges copyright infringement.  In Garcia v. Nakoula, (CD CA, Nov. 30, 2012), the court held that even if Garcia owns a copyright in her performance in the film, she necessarily "granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film."

Oregon High Court Rules That Parent Church Owns Property of Breakaway Presbyterian Congregation

In Hope Presbyterian Church or Rogue River v. Presbyterian Church (U.S.A.), (OR Sup. Ct., Nov. 29, 2012), the Oregon Supreme Court held that the property of a break-away Presbyterian congregation belongs to PCUSA, the national church body.  The court concluded that it would use the "neutral principles" approach in determining the rights of the parties. Applying that approach, the court found that "Hope Presbyterian held its property in trust for the benefit of PCUSA."

Text Of Egypt's Proposed Constitution-- Provisions On Religion

The full text of Egypt's proposed new Constitution became available today in English from Egypt Independent. BBC News has also published a side-by-side comparison of key provisions in the new constitution and those in the now-suspended 1971 Constitution. Here are some of the provisions in the new draft Constitution relating to religion and religious liberty:

Article 1
. The Arab Republic of Egypt is an independent sovereign state, united and indivisible, its system democratic.
The Egyptian people are part of the Arab and Islamic nations, proud of belonging to the Nile Valley and Africa and of its Asian reach, a positive participant in human civilization.



Article 2. Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation.



Article 3
. The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.



Article 4
. Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.


The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law.

The State shall ensure sufficient funds for Al-Azhar to achieve its objectives.


All of the above is subject to law regulations.

...

Article 6.... No political party shall be formed that discriminates on the basis of gender, origin or religion.

...

Article 10. The family is the basis of the society and is founded on religion, morality and patriotism.


The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law.....

Article 11. The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people; all as shall be regulated by law.

...

Article 43. Freedom of belief is an inviolable right.

The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law.

Article 44. Insult or abuse of all religious messengers and prophets shall be prohibited....

Article 60.... Religious education and national history are core subjects of pre-university education in all its forms....

UPDATE: Another provision of interest is Article 219: "The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community."

Court Dismisses Challenge To City's Ban On Unattended Park Displays; Critics Plan Live Nativity Scene Instead

After denying a preliminary injunction earlier this month (see prior posting), a California federal district court this week in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 29 2012) dismissed 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. The court rejected plaintiff's contention that the City’s ordinance banning all unattended displays in Palisades Park violates the 1st Amendment's Free Speech and Establishment Clauses. Christian Post reported yesterday that a coalition of Christian groups plans to hold a Live Nativity Display in Palisades Park on Dec. 8. This is permissible since the city's ordinance bars only unattended displays.

Friday, November 30, 2012

British "Free Schools" Must Teach Evolution In Science Classes

In Britain, Free Schools are alternative state-funded schools set up in response to local demands. The first Free Schools opened in 2011. In January of this year, Britain's Department for Education revised its funding agreement for Free Schools to prevent the teaching of creationism in science classes, allowing it to be taught only in religious education classes. (The Guardian). Now, after pressure by the Royal Society as well as secular and humanist groups, the Department for Education has taken the next step.  Free Schools also may not omit evolution from their science curriculum. Instead, according to Thursday's Guardian, a new clause has now been placed in funding agreements with Free Schools requiring them to "make provision for the teaching of evolution as a comprehensive, coherent and extensively evidenced theory." The Department for Education has approved three Free Schools run by groups with creationist views, though only one of these schools has opened so far. [Thanks to Scott Mange for the lead.]

Egypt's Constituent Assembly Hurriedly Adopts New Constitution

Egypt's constituent assembly hurriedly completed its work on a new constitution yesterday. (Reuters). President Morsi has said that his controversial decrees that have sparked over a week of protest will end when the people vote on the constitution. CTV News reports that the new constitution, which contains over 230 articles, was adopted by an Islamist dominated body: "Of the 85 members in attendance, there was not a single Christian and only four women, all Islamists." Reuters describes the new draft as leaving the status of Islam unchanged, in that it keeps a provision making the principles of Islamic law the main source of legislation.  However it adds a new provision that the Sunni center of learning, Al-Azhar, must be consulted on "matters related to the Islamic sharia." Human Rights Watch offers this evaluation of the new document:
Article 43 on freedom of religion limits the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. Previous drafts had provided for a general right to practice religion but limited the establishment of places of worship to adherents of these three Abrahamic religions. Article 43 discriminates against and excludes followers of other religions, including Egyptian Bahais. Under former President Hosni Mubarak, security forces would frequently arrest religious minorities including Shia, Ahmadis, Bahais, and Quranists because of their beliefs....
One positive development is that the final draft no longer includes what had been article 68 in earlier drafts on women’s rights, which stipulated that equality for women would be subject to conformity with rulings of Islamic law, a provision strongly promoted by Salafi members of the assembly. However, the draft no longer lists “sex” as one of the grounds for prohibiting discrimination, as no grounds are named. Article 30 now states that, “Citizens are equal before the law and equal in rights and obligations without discrimination,” without specifying whom this provision covers.

First Lady Conducts Preview Of White House Christmas Decorations

According to the White House website, on Wednesday First Lady Michelle Obama held a press preview of this year's White House Christmas holiday decorations. This year's theme is "Joy to All."  The White House features 54 decorated trees. Two rooms pay tribute to the sacrifices of the Armed Forces and their families. Children of military families attended the press preview. The 18-foot tall official White House Christmas tree in the Blue Room is trimmed with ornaments made by military children living on bases around the world.