Federal Court Says Contraceptive Coverage Mandate Preempts State Law Seeking To Undercut It

As previously reported, last year in a move to oppose the federal mandate on contraception coverage in health insurance policies, the Missouri legislature enacted SB 749 that requires insurance companies to offer and issue policies that exclude coverage for contraceptives where coverage is contrary to the moral, ethical or religious beliefs or tenets of the person or entity seeking insurance.  Gov. Jay Nixon vetoed the bill, but the legislature overrode the veto. Now, in Missouri Insurance Coalition v. Huff, (ED MO, Dec. 21, 2012), a Missouri federal district court has issued a temporary restraining order barring the Department of Insurance from enforcing these provisions of SB 749, finding that under the Constitution's Supremacy Clause the provisions are preempted by the Affordable Care Act's contraceptive coverage mandate. Insurance News Net reports on the decision.

Pakistani Villagers Attack Traveler Accused Of Burning Qur'an

Reuters reported on Saturday on the violence in the Pakistani village of Seeta against a man accused of burning a Qur'an.  The man, a traveler, had spent Thursday night as the only person in the local mosque.  The next morning charred remains of a Qur'an were found there.  Villagers beat the man and turned him over to police. A few hours later, 200 villagers invaded the police station, dragged the suspect out and set him on fire. Police say 30 people have been arrested for murder and 7 police officers have been detained for negligence in the incident. [Thanks to Matthew Caplan for the lead.]

Recent Articles of Interest

From SSRN:

• Tom Ginsburg, Constitutionalism: East Asian Antecedents, (Chicago-Kent Law Review, 2013).
• Mohamed A. Arafa, President Mursi's Egypt Arab Spring: Does Egypt Will Continue to Be a Civil State or Under the Umbrella of Islamic (Sharie‘a) Law and Islamism?, (US-China Law Review, Vol. 9, No. 6, 2012).
• Veronique Champeil-Desplats, Laïcité Et Liberté Religieuse En France: Aux Sources De La Loi Interdisant La Dissimulation Intégrale Du Visage Dans L'Espace Public (Secularism and Religious Freedom in France: On the Legal Provisions Prohibiting the Veil to Cover the Face in Public Space), (Revista Derecho del Estado, No. 29, 2012).
• Xiomara Lorena Romero Perez, La Libertad Religiosa En El Sistema Interamericano De Protección De Los Derechos Humanos (Análisis Comparativo Con El Ordenamiento Jurídico Colombiano) (Religious Freedom in the American System of Human Rights Protection (Comparison with the Colombian Legal System)), (Revista Derecho del Estado No. 29, 2012).
• Omar M, Dajani, Responding to Ethnic and Religious Conflict in the Emerging Arab Order: The Promise and Limits of Rights, (November 10, 2012).
• Lucinda Ferguson, 'Families in All Their Subversive Variety': Over-Representation, the Ethnic Child Protection Penalty, and Responding to Diversity Whilst Protecting Children, (Studies in Law, Politics, and Society, Forthcoming).
• Nicholas A. Primrose, Has Society Become Tolerant of Further Infringement on First Amendment Rights?, (December 4, 2012).

From SSRN (Jewish Law and Islamic Law)

• Yitshak Cohen, Midrashic Exegesis and Biblical Interpretation in the Meshekh Hokhmah – The Man and the Work – Their Legal Stature and Normative Influence, (Jewish Law Annual, Forthcoming).
• Yitshak Cohen, The Rabbbinic Decisors and the Halakhic Material in the Or Sameah, (Jewish Law Association, Forthcoming).
• Yitshak Cohen, The Jerusalem Talmud in Rabbi Meir Simcha Hakohen's Halachic-Legal Work, (9 Kiryat Hamishpat L. Rev. 301, 2011).
• Yitshak Cohen, Juridical Ideology and Its Influence upon the 'Or Sameach's' Halachic Decision Making Process, (Halakhah: Explicit and Implied Theoretical and Ideological Aspects, Avinoam Rosenak & Dafna Schreiber, eds., 2012).
• Mark Cammack and Michael Feener, The Islamic Legal System in Indonesia, (Pacific Rim Law & Policy Journal, Vol. 21, No. 1, 2012).

From SmartCILP:

• David M. Engel, Vertical and Horizontal Perspectives on Rights Consciousness, [Abstract], 19 Indiana Journal of Global Legal Studies 423-455 (2012).
• Daisy Hurst Floyd, Timothy W. Floyd and Sarah Gerwig-Moore, Learning From Clergy Education: Externships Through the Lens of Formation [Abstract], 19 Clinical Law Review 83-114 (2012).
• Rodney D. Chrisman, Can a Merchant Please God?: The Church's Historic Teaching On the Goodness of Just Commercial Activity As a Foundational Principle of Commercial Law Jurisprudence, 6 Liberty University Law Review 453-494 (2012).

Developments From The Vatican Last Week

Several developments of interest came from the Vatican last week:

As reported by AP, Pope Benedict XVI met in the Vatican prison on Saturday with his former butler Paolo Gabriele and granted him a pardon. Gabriele had been sentenced to 18 months in jail for stealing the Pope's private correspondence, some of which were published in a best-selling book by Italian journalist Gianluigi Nuzzi. (See prior posting.)

On Saturday, the Vatican announced the appointment of Boston canon lawyer Rev. Robert W. Oliver as promoter of justice for the Congregation of the Doctrine of Faith, the Vatican office charged with protecting church doctrine. As reported by the Boston Globe, this makes Oliver the Vatican's chief prosecutor of priests charged with sexual abuse of minors. He succeeds Monsignor Charles Scicluna who has been named auxiliary bishop in Malta. The director of Survivors Network of those Abused by Priests criticized Oliver's appointment, saying that he lacks credibility because he never publicly called for the ouster of Boston's Cardinal Bernard Law.

On Friday, the Pope delivered his Christmas greetings to the Roman Curia. (Full text). As reported by Catholic World, while the Pope's extensive remarks were widely headlined as an attack on same-sex marriage, in fact he spoke in broader philosophical terms. Focusing on "a new philosophy of sexuality" in the western world, he said in part:

According to this philosophy, sex is no longer a given element of nature, that man has to accept and personally make sense of: it is a social role that we choose for ourselves, while in the past it was chosen for us by society.... People dispute the idea that they have a nature, given by their bodily identity, that serves as a defining element of the human being. They deny their nature and decide that it is not something previously given to them, but that they make it for themselves.... When the freedom to be creative becomes the freedom to create oneself, then necessarily the Maker himself is denied and ultimately man too is stripped of his dignity as a creature of God....

Recent Prisoner Free Exercise Cases

In Moussazadeh v. Texas Department of Criminal Justice, (5th Cir., Dec. 21, 2012), the 5th Circuit, in a 2-1 decision, held that a Texas prison inmate seeking access to kosher food had adequately exhausted his administrative remedies and, as a matter of law, had demonstrated the sincerity of his religious beliefs. It also concluded that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. It remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means.

In Stewart v. Beach, (10th Cir., Dec. 18, 2012) a Rastafarian inmate objected to a prison rule that required him to cut his hair. The 10th Circuit held that correctional officers had qualified immunity as to the inmate's free exercise claim, and that individual capacity claims are not allowed under RLUIPA.

In Reed v. Hardy, 2012 U.S. Dist. LEXIS 179325 (ND IL, Dec. 19, 2012), and Illinois federal district court allowed an inmate to move ahead with free exercise and RLUIPA objections to being forced to choose between yard time and going to communal religious services.

In Scott v. Erdogan, 2012 U.S. Dist. LEXIS 178908 (MD PA, Dec. 18, 2012), a Pennsylvania federal district court adopted in part a magistrate's recommendations (2012 U.S. Dist. LEXIS 179482, Nov. 19, 2012) and permitted a Muslim inmate to move ahead with his free exercise and RLUIPA claims for injunctive relief against the prison's Muslim chaplain who he alleged infringed his right to practice his orthodox Sunni religion in various ways by funneling him to the Wahabi sect.

In Bedier v. United States, 2012 U.S. Dist. LEXIS 178897 (CD CA, Dec. 17, 2012), a California federal district court dismissed as moot a suit by plaintiff, who has now been deported to Lebanon, complaining that while he was held pending removal he was denied a halal or vegetarian diet and was denied the ability to pray. Injunctive relief was denied because plaintiff is no longer being detained and is unlikely to be held again in the future.

In Laurensau v. Romarowics, 2012 U.S. Dist. LEXIS 179788 (WD PA, Dec. 20, 2012), a Pennsylvania federal magistrate judge rejected an inmate's complaints about being taken off the kosher diet plan, finding that he lacked a sincerely held religious belief requiring kosher food.

In Jalloh v. Mullendore, 2012 U.S. Dist. LEXIS 179677 (D MD, Dec. 19, 2012), a Maryland federal district court permitted plaintiff to proceed with his claims that while he was a pre-trial detainee he was
denied access to Muslim services, programming and religious articles, while other religions were treated differently.

In Trapp v. Clarke, 2012 Mass. Super. LEXIS 311 (MA Super. Ct., Sept. 26, 2012), a Massachusetts state trial court held that prison authorities violated a previous settlement agreement, the Massachusetts constitution and RLUIPA when they stopped providing kinnick-kinnick with tobacco and substituted tobacco free kinnick-kinnick, and when they closed a sweat lodge at one facility because of health concerns of exposing staff and inmates to smoke. The court upheld closure of a second sweat lodge and a ban on colored beads.

In Clark v. Cambria County Prison, 2012 U.S. Dist. LEXIS 179789 (WD PA, Dec. 20, 2012), a Pennsylvania federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181044, Nov. 15, 2012) and dismissed an inmate's complaint that his prison did not have separate Jehovah's Witness services.

In Dowdy-El v. Caruso, 2012 U.S. Dist. LEXIS 180025 (ED MI, Dec. 20, 2012), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 181136, Aug. 15, 2012), and granted class certification to all Muslim inmates in Michigan who are denied the ability to participate in Jum'ah services because of a conflicting work, school or similar detail; and all Muslim inmates in Michigan who have been denied a halal diet.

Preliminary Injunction Denied In Factional Dispute In Ravidassia Temple

In Ram v. Lal, 2012 U.S. Dist. LEXIS 179958 (ED NY, Nov. 21, 2012), a New York federal magistrate judge denied a preliminary injunction in a suit between competing factions of a Ravidassia Temple in Woodside, New York.  Among the disputes between the factions is the question of whether Ravidassia is a separate religion or is a sub-group within the Sikh religion.  The suit grows out a a previous lawsuit filed in state court in which the state court disbanded the Management Committee of the Temple elected in 2009 and appointed a receiver to manage the Temple until a new election was held. Among other things, the receiver had the power to determine who could vote in the new election.  Plaintiffs complain that Defendants' faction has been recruiting non-Ravidassia-- in particular, Sikhs who are not members of the Chammar/ Addharmi caste-- to become Temple members in order to bolster their chances of winning the election. The court held that members of the Defendants' faction were not state actors, and so no 1st Amendment claim lies against them.  Plaintiffs failed to name the receiver or the state court as parties to the action. Moreover the injunction sought-- barring any actions contrary to the Temple's Bylaws-- was overly broad.

Mosque Can Move Ahead With Suit Challenging Denial of Conditional Use Permit

In Islamic Center of Western Suburbs v. County of DuPage, (ND IL, Dec. 18, 2012), an Illinois federal district court refused to dismiss claims by an Islamic Center that its rights under RLUIPA, the 1st and 14th Amendments and the Illinois constitution were infringed. The suit stemmed from the denial of Plaintiff's application for a conditional use permit for a mosque. However plaintiff's motion to strike various defenses asserted by the county was for the most part denied. The suit seeks damages, injunctive and declaratory relief. (See prior related posting.)

Iowa Supreme Court: Firing Attractive Female Employee Because Of Wife's Objections Is Not Sex Discrimination

In Nelson v. Knight, (IA Sup. Ct., Dec. 21, 2012), the Iowa Supreme Court upheld a decision by dentist James Knight to fire Melissa Nelson, a dental assistant who had worked for him for over ten years, after Knight's wife became concerned that Nelson posed a threat to their marriage. Knight was becoming personally attracted to Nelson and he feared he would eventually try to have an affair with her if he did not fire her. Knight reached the decision to fire Nelson after he and his wife consulted with the senior pastor of their church. Knight arranged for another pastor from the church to be present and witness the conversation in which he fired Nelson, and also a subsequent conversation he had with Nelson's husband about the firing.  The state Supreme Court held that the firing did not amount to gender discrimination. AP reports on the decision.

Supreme Court Asked To Decide On Holding Of Public School Commencements In Churches

The Becket Fund announced yesterday that it has filed a petition for certiorari (full text) with the U.S. Supreme Court seeking review of the 7th Circuit's decision in Doe 3 v. Elmbrook School District.  In the case, the 7th Circuit in a 7-3 en banc decision held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.) The Brookfield Patch reports on the filing of the cert. petition.

Congress Passes Defense Authorization Act With Provisions On Chaplains and Conscience Rights

Congress this week passed HR 4310, the 2013 National Defense Authorization Act, when the House and Senate both agreed to the version of the bill set out in the Conference Committee Report. The 1590-page bill contains provisions impacting military chaplains and conscience rights of members of the military.

Section 508 of the Act (adding 10 USC Sec. 8039) creates the position of Chief of Chaplains in the Air Force.

Section 533 of the Act protects conscience rights of military members and chaplains. It provides:

SEC. 533. PROTECTION OF RIGHTS OF CONSCIENCE OF MEMBERS OF THE ARMED FORCES AND CHAPLAINS OF SUCH MEMBERS. 

(a) PROTECTION OF RIGHTS OF CONSCIENCE.—

(1) ACCOMMODATION.—The Armed Forces shall accommodate the beliefs of a member of the armed forces reflecting the conscience, moral principles, or religious beliefs of the member and, in so far as practicable, may not use such beliefs as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

(2) DISCIPLINARY OR ADMINISTRATIVE ACTION.—Nothing in paragraph (1) precludes disciplinary or administrative action for conduct that is proscribed by chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), including actions and speech that threaten good order and discipline. 

(b) PROTECTION OF CHAPLAIN DECISIONS RELATING TO CONSCIENCE, MORAL PRINCIPLES, OR RELIGIOUS BELIEFS.—No member of the Armed Forces may—

(1) require a chaplain to perform any rite, ritual, or ceremony that is contrary to the conscience, moral principles, or religious beliefs of the chaplain; or 

(2) discriminate or take any adverse personnel action against a chaplain, including denial of promotion, schooling, training, or assignment, on the basis of the refusal by the chaplain to comply with a requirement prohibited by paragraph (1). 

(c) REGULATIONS.—The Secretary of Defense shall issue regulations implementing the protections afforded by this section.

God and Country Blog has more on Sec. 533.

As reported by Politico, last month the White House threatened a veto over various other provisions in the Senate version of the bill, including limitations on transfer of prisoners from Guantanamo Bay. (Statement by Executive Office of the President.) However, National Journal now reports that a Presidential veto is highly unlikely.

9th Circuit Bars Enforcement of Reparative Therapy Ban Pending Appeal

As reported by AFP, the U.S. 9th Circuit Court of Appeals yesterday issued an injunction in Pickup v. Brown barring enforcement pending an appeal, of California's ban on so-called reparative therapy for minors.  The federal district court in the case held that the state's ban on sexual orientation change efforts does not impact 1st Amendment free expression since healthcare treatment is not expressive conduct. (See prior posting.) [Corrected-- earlier version of posting had incorrect circuit.]

District Court Modifies Wilmington Diocese Bankruptcy Order, Eliminating Ban On Payments To Accused Priests

In an appeal of the bankruptcy court's confirmation of the Chapter 11 reorganization plan of the Catholic Diocese of Wilmington, a Delaware federal district court has eliminated the bankruptcy court's order banning payment of any salaries, employment benefits, medical benefits, charity payments, pensions or other financial benefits to a list of nine removed priests. The appeal was filed by one of the nine priests, Kenneth Martin. In Martin v. Catholic Diocese of Wilmington, Inc., (D DE, Dec. 18, 2012), the Delaware federal district court held that a crucial letter by now-deceased Bishop Salterelli was hearsay that was wrongly admitted into evidence.  The letter, on which the list of priests denied benefits was based, represented in a conclusory fashion the names of priests as to whom Saltarelli had confirmed sexual abuse allegations. The court said in part:

In this case, the bankruptcy court imposed a permanent injunction on third parties without referring to any evidentiary requirements ... and without requiring the Diocese (or the Official Committee or the Ad Hoc Committee) to bear any burden of proof in that regard.  Moreover, the record demonstrates that the imposition of the Injunction will have no impact on the property of the estate, as the Diocese has represented, through its agent under oath, that it has no intention of providing any prospective benefits to appellant or other similarly situated individuals....

In weighing the public interest, the court does not question the motivations behind the imposition of the Injunction.  However, good intentions cannot trump the rule of law and the fundamental requirement that there be a nexus established between the wrongs alleged and the remedy imposed.  No such nexus exists of record,  as there is no indication at bar that appellant was the subject of any of the survivor claims actually at issue in the Diocese's chapter 11  proceedings, and appellant was not given the opportunity to contest his inclusion as a subject of the Injunction.

The Wilmington News Journal reports on the decision.

Court Rejects Father's Establishment Clause Challenge To Divorce Decree Provision On Religious Education of Children

In Roberts v. Roberts, (TX App., Dec. 19, 2012), a Texas appeals court rejected a father's Establishment Clause challenge to a provision in a divorce decree under which his former wife was given the right to pick up the children for religious classes on Sundays on which the father otherwise had possession of the children.  The court said in part:

Just as  the  court has discretion to mold the decree to accommodate activities such as soccer games and music lessons if it finds them in the child’s best interest, it may accommodate a parent’s desire for the children’s religious education, provided that it does not favor one parent’s religion over another or over a preference for no religion.  Martin has not directed us to, nor  have we located, any evidence in the record that the court’s decreed visitation schedule, accommodating, inter alia, the children’s current religious education, in any way  favors Margaret’s religion.

Two More Decisions In Challenges To ACA Mandate; 10th Circuit and Missouri District Court Have Divergent Views

In Hobby Lobby Stores, Inc. v. Sebelius, (10th Cir., Dec. 20, 2012), the U.S. 10th Circuit Court of Appeals refused to grant an injunction pending resolution of an appeal in a challenge by two closely-held  for-profit corporations and their Christian owners to the contraceptive coverage mandate under the Affordable Care Act.  The court concluded that plaintiffs had not demonstrated a substantial likelihood of success on the merits because it was unlikely that the mandate imposed a substantial burden on plaintiffs' exercise of religion:

other cases enforcing RFRA have done so to protect a plaintiff’s own participation in (or abstention from) a specific practice required (or condemned) by his religion.  We do not think there is a substantial likelihood that this court will extend the reach of RFRA to encompass the independent conduct of third parties with whom the plaintiffs have only a commercial relationship.

LifeNews reports on the decision. (See prior related posting.) In a press release, Becket Fund indicated that plaintiffs will now seek relief from the U.S. Supreme Court. UPDATE: Here is the petition to the Supreme Court for an injunction pending appellate review.

However, in American Pulverizer Co. v. U.S. Department of Health and Human Services, (WD MO, Dec. 20, 2012), a Missouri federal district court granted a preliminary injunction against enforcement of the contraceptive coverage mandate in a challenge filed by a group of metal recycling businesses owned by Evangelical Christians Paul and Henry Griesediek. (See prior posting.) The court held: "Plaintiffs have raised questions concerning their likelihood of success on the merits that are so serious and difficult as to call for more deliberate investigation." In reaching that conclusion, the court said in part:

Plaintiffs must either pay for a health plan that includes drugs and services to which they religiously object or incur fines.  Accordingly, the Court determines that there is a substantial likelihood that Plaintiffs will able to prove, on the merits, that the ACA substantially burdens Plaintiffs’ exercise of religion.

The Court notes that Defendants argue that Plaintiffs cannot show that the ACA substantially burdens any exercise of religion as the Griesedieck Companies are secular entities and, thus, cannot “exercise religion” under the RFRA. ... [T]here are many entities under which an individual can run a business, i.e. a corporation, partnership, LLC, closely-held subchapter-s corporation, or sole proprietorship.  Does an individual’s choice to run his business as one of these entities strip that individual of his right to exercise his religious beliefs?....

National Review reports on the decision.

TRO Vindicates Woman's Display of Offensive Holiday Decorations

The Louisiana ACLU announced yesterday that it has obtained a temporary restraining order on behalf of a Denham Springs (LA) woman in an unusual dispute over holiday light displays. The complaint (full text) in Childs v. City of Denham Springs, (MD LA, filed 12/20/2012), recounts that as part of an ongoing disagreement with her neighbors, plaintiff Sarah Childs installed on her roof "a string of holiday lights in the shape of a human hand with an extended middle finger."  After neighbors complained, police told Childs to remove the lights, and initially she did. Subsequently she put the display back up, this time featuring two hands with extended middle fingers. Police then issued Childs various summonses for other items about which her neighbors complained such as obstructing traffic, disturbing the peace and assault, and eventually police ordered Childs to remove the second display.  After doing so, she sued claiming free speech, due process and other violations. (Links to filings in the case.) AP reports on the issuance of the TRO.

Nominal-Rent Lease To Scouts of City Property Does Not Violate California No-Aid Bar, or Establishment Clause

In Barnes-Wallace v. City of San Diego, (9th Cir., Dec. 20, 2012), the U.S. 9th Circuit Court of Appeals rejected state and federal constitutional challenges to the city's leases of property for nominal or no rent to the Boy Scouts. The Boy Scouts bar youths or adults who are atheists, agnostics,or homosexuals from being members or volunteers.  One set of plaintiffs in the case is a lesbian couple, and the other plaintiffs are agnostics, so they cannot be Boy Scout volunteers.  As parents they refuse to allow their sons to become Boy Scout members because of these exclusionary policies, and refuse to allow their sons to use the property as members of the public so long as the Boy Scouts administer the properties.  Reversing the District Court, the 9th Circuit held that the leases do not violate the "No Aid" Clause of the California Constitution since any benefit to the Scout's religious purposes is merely incidental. (See prior related posting.) Nor do the leases violate the California "No Preference" Clause or the federal Establishment Clause. A reasonable observer "could not conclude that the City was engaged in religious indoctrination, or was defining aid recipients by reference to religion."  Finally the court rejected equal protection, statutory and contract claims. (See prior related posting.)

Judge Kleinfeld, concurring, would also have denied standing to plaintiffs, saying: "Revulsion for a group so intense that one cannot bear to be on property they manage cannot, in a tolerant society, be deemed harm sufficiently concrete as to confer standing to sue."  The Los Angeles Times reports on the decision.

In Tunisia, Advocacy Group Sues Imam Over Anti-Jewish Remarks In Sermon

The Times of Israel reported yesterday that in Tunisia, the Tunisian Association to Support Minorities has filed a lawsuit against a prominent imam for anti-Jewish remarks he made in a televised sermon [excerpts] delivered at the Khatib mosque near Tunis last month. The suit alleges that Sheikh Ahmad Al-Suhayli violated Tunisia’s 2011 Decree 115 [background] which prohibits "calls to hatred between races and religions, and the population" when he told listeners: "God wants to destroy this sprinkling of Jews… and is for sterilizing the wombs of Jewish women."

Canada's Supreme Court, in Split Decision, Sets Out Balancing Test On Right of Witness To Wear Niqab

The Supreme Court of Canada today, in a widely watched case, handed down its decision on whether a Muslim woman who for religious reasons wears a niqab that covers her face can be required to remove it while testifying in court. The issue arose at a preliminary inquiry involving criminal charges against the woman's uncle and cousin who she accused of repeatedly sexually assaulting her when whe was a young girl.  (See prior posting.) In R. v. N.S., (Sup. Ct. Canada, Dec. 20, 2012), Chief Justice McLachlin, writing for 4 of the 7 Supreme Court justices set out a balancing test, and held that the case should be remitted to the judge conducting the preliminary inquiry to apply the test:

Two sets of Charter rights are potentially engaged — the witness’s freedom of religion and the accused’s fair trial rights, including the right to make full answer and defence.  An extreme approach that would always require the witness to remove her niqab while testifying, or one that would never do so, is untenable.  The answer lies in a just and proportionate balance between freedom of religion and trial fairness, based on the particular case before the court.  A witness who for sincere religious reasons wishes to wear the niqab while testifying in a criminal proceeding will be required to remove it if (a) this is necessary to prevent a serious risk to the fairness of the trial, because reasonably available alternative measures will not prevent the risk; and (b) the salutary effects of requiring her to remove the niqab outweigh the deleterious effects of doing so.....

Justice LeBel joined by Justice Rothstein held that they would impose a "clear rule" that a niqab cannot be worn at any stage of the criminal trial:

The Charter protects freedom of religion ....  But fundamental too are the rights of the accused to a fair trial, to make full answer and defence to the charges brought against him, to benefit from the constitutional presumption of innocence and to avert wrongful convictions.  Since cross-examination is a necessary tool for the exercise of the right to make full answer and defence, the consequences of restrictions on that right weigh more heavily on the accused, and the balancing process must work in his or her favour.

Justice Abella, on the other hand, would allow the witness to wear her niqab while testifying:

Since not being able to see a witness’s whole face is only a partial interference with what is, in any event, only one part of an imprecise measuring tool of credibility, there is no reason to demand full “demeanour access” where religious belief prevents it..... Defence counsel still has the opportunity to rigorously cross-examine the witness.

A witness who is not permitted to wear her niqab while testifying is prevented from being able to act in accordance with her religious beliefs.  This has the effect of forcing her to choose between her religious beliefs and her ability to participate in the justice system.  As a result, complainants ... may choose not to bring charges for crimes they allege have been committed against them, or ... may resist being a witness in someone else’s trial.  Where the witness is the accused, she will be unable to give evidence in her own defence.... [S]exual assault complainants, whose evidence will inevitably be contested, will be forced to choose between laying a complaint and wearing a niqab, which may be no meaningful choice at all.

 The Toronto Globe and Mail reports on the decision, as does Constitutional Law Prof Blog. CBC News reviews several other controversies in Canada in recent years involving the right to wear a niqab. [Thanks to Ruthann Robson for the lead.]

Church Deacon Among Others Charged In Asylum Fraud Schemes

The U.S. Attorney's Office for the Southern District of New York announced Tuesday the unsealing of indictments (full text of charging documents) charging 26 individuals in overlapping immigration fraud schemes involving fabricated claims of persecution asserted by Chinese aliens seeking asylum.  Those charged were lawyers and paralegals in ten different law firms in the Chinatown area of Manhattan and Queens, as well as four translators and a church employee, all of whom were involved in the scheme to prepare false applications, coach clients on how to lie in their immigration interviews and mis-translate their answers when necessary to support their claims.  According to the U.S. Attorney's Office:

the law firms made up stories of persecution that often followed one of three fact patterns: (a) forced abortions performed pursuant to China’s family planning policy; (b) persecution based on the client’s belief in Christianity; or (c) political or ideological persecution, typically for membership in China’s Democratic Party or against followers of Falun Gong.

One of those indicted was Liying Lin (charging document) who claimed to be a deacon at the Full Gospel Church in Flushing, NY. It was charged that at bi-weekly sessions she provided training in the basic tenets of Christianity to asylum applicants who were falsely claiming religious persecution. In exchange for cash contributions to the Church, or to Liying Lin personally, she would coach clients on what questions regarding religion would be asked during the interview, and on how to answer them. She would sometimes also provide certificates of church attendance or baptism. Sometimes she served as the translator during the asylum interview and signaled applicants when they gave a wrong answer, or mistranslated their statements to make the answer consistent with their persecution and religious belief claims. The New York Times reports on the indictments.

Man Pleads Guilty In Ohio Mosque Arson Attack

In Toledo, Ohio yesterday, 52-year old Randolph Linn plead guilty in federal district court to one count each of intentionally defacing, damaging, and destroying religious property; using a fire to commit a felony; and using and carrying a firearm to commit a crime of violence in an attack on the Islamic Center of Greater Toledo. According to the Toledo Blade:

Linn admitted he set fire to the rug in the prayer room at the mosque on Sept. 30 after walking through the building with a gun to check for people in each room. He said he was motivated to drive the nearly two hours from his Indiana home to the Perrysburg mosque “to get some payback” for Americans who had been killed.

Under a binding plea agreement Linn will be sentenced to 20 years in prison and be required to pay restitution to the mosque.  The Islamic Center suffered extensive water and smoke damage as a result of the attack.