Contempt Sanctions Imposed On Russian Government For Failure To Return Expropriated Jewish Books

In Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Jan. 16, 2013), the D.C. federal district court held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States.  Despite objections by the United States government, the court imposed civil sanctions of $50,000 per day until defendants comply with the court's order.  Blog of the Legal Times reports on the decision.

UPDATE: According to Interfax (Jan. 17), the Russian presidential representative for international cultural cooperation Mikhail Shvydkoy does not understand the court's contempt findings. He said:

Russia earlier honored all agreements on this issue. The problem was discussed within the Gore-Chernomyrdin commission's framework, and we reached quite a reasonable compromise with the American side then. We set up the Center of Oriental Literature at the Russian State Library, where, in particular, the Schneerson collection is stored, and it is accessible to any citizens, including Russian and others. A prayer room was also set up there, where religious cults can be observed. I had assumed the issue was settled.

He added: "Transferring books from the Russian State Library violates the law, it is prohibited."

Study On Texas Public School Bible Courses Released

Yesterday the Texas Freedom Network released a study titled Reading, Writing & Religion II: Texas Public School Bible Courses in 2011-12. Key findings are:

Many Bible course teachers lack the proper training required by the Legislature. Moreover, curriculum standards adopted by the State Board of Education are far too broad to help school districts create academically sound and legally appropriate courses. Consequently, many courses are not academically rigorous and include numerous errors, distortions and other problems.

Many Bible courses reflect the religious beliefs of the teachers and sectarian instructional materials they use in their classrooms. In every course in which religious bias is present, instruction reflects a Protestant -- most often a conservative Protestant -- perspective, including a literal interpretation of the Bible.

Many courses teach students to interpret the Bible and even Judaism through a distinctly Christian lens. Anti-Jewish bias -- sometimes intentional but often not -- is not uncommon.

A number of courses and their instructional materials incorporate pseudo-scholarship, including claims that the Bible provides scientific proof of a 6,000-year-old Earth (young Earth creationism) and that the United States was founded as a Christian nation based on biblical Christian principles. At least one district's Bible course includes materials suggesting that the origins of racial diversity among humans today can be traced back to a curse placed on Noah's son in the biblical story of the flood. Such claims have long been a foundational component of some forms of racism.

Despite the state's failure to implement HB 1287 effectively, a number of school districts did succeed in offering Bible courses that largely comply with legal and constitutional requirements, are academically serious and avoid many of the serious problems noted in most other districts. These successful courses can be found in urban, suburban and rural districts.

1st Circuit: Establishment Clause Challenge To HHS Contract With Bishops Is Moot

In American Civil Liberties Union of Massachusetts v. United States Conference of Catholic Bishops, (1st Cir., Jan. 15, 2013), the U.S. 1st Circuit Court of Appeals remanded with instructions to dismiss as moot a suit brought in 2009 alleging that the U.S. Department of Health and Human Services violated the Establishment Clause when it contracted with the U.S. Conference of Catholic Bishops to provide services under the Trafficking Victims Protection Act. The appeals court held that the expiration of the contract with USCCB rendered the challenge moot, rejecting the district court's conclusion that the case fell under the "voluntary cessation" exception to the mootness doctrine. The 1st Circuit also held that the exception for conduct "capable of repetition, yet evading review" does not apply. [Thanks to Alliance Alert for the lead.]

Today Is Religious Freedom Day

Today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute for Religious Freedom in 1786.  Each year the President issues a proclamation marking the day. So far this year's proclamation has not been posted on the White House website.  Presumably it will appear later today and this post will be updated with a link to it.

UPDATE: Here is the Presidential Proclamation-- Religious Freedom Day 2013.

New Pick To Deliver Inauguration Benediction Reported

CNN reports that Rev. Luis León, pastor of St. John's Episcopal Church, located across Lafayette Park from the White House, has been chosen to deliver the benediction at President Obama's inauguration next Monday. León replaces evangelical pastor  Louie Giglio who withdrew after an anti-gay sermon he preached in the 1990's surfaced. (See prior posting.) León, a naturalized citizen, was born in Cuba and came to the United States at age 11.

Polish Court Upholds Cross Hanging In Parliament

According to a report yesterday from Polskie Radio, a trial court in Poland has ruled against 7 members of Parliament from the anti-clerical Palikot's Movement party who sought to have a cross that hangs in the debating chamber of Parliament removed.  Plaintiffs claimed that the presence of the cross favored one religion over another.  However, Judge Alicja Fronczyk held that "the presence of a religious symbol in a public place, such as parliament, does not violate freedom of conscience." Plaintiffs intend to appeal.

Another Small Business Challenge To Federal Contraceptive Coverage Mandate Filed

Yet another lawsuit by a for-profit small business challenging the Affordable Care Act contraceptive coverage mandate was filed Monday-- this time by a Missouri-based plumbing products corporation and its Catholic owners.  The complaint (full text) in Sioux Chief Mfg. Co., Inc. v . Sebelius, (WD MO, filed 1/14/2013), contends that the mandate violates plaintiffs' rights under the 1st and 5th Amendments, the Religious Freedom Restoration Act, and the Administrative Procedure Act.  Alliance Defending Freedom issued a press release announcing the filing of the case.

TRO Issued In Small Business Conscience Challenge To State Contraceptive Mandate

In recent months there has been an outpouring of religious liberty concerns over the federal contraceptive coverage mandate. However, as pointed out by The Catholic Review, 28 states have their own contraceptive coverage mandates, albeit with religious employer exemptions of various sorts, and often with exclusions for self-insured ERISA plans. Courts in New York and California have upheld state mandates over objections of church agencies, and the U.S. Supreme Court refused review in both cases.  Now a new challenge to a state mandate-- this time in Illinois-- has met initial success in a case brought by a Catholic-owned small business.  Triune Health Group, Inc. has already won a preliminary injunction against the federal mandate. (See prior posting.) Now, in Yep v. Illinois Department of Insurance, (Dupage Co. IL Cir. Ct., Jan. 15, 2013), an Illinois state trial court has issued a temporary restraining order against the Illinois state insurance mandate (215 ILCS 5/356z.4) in a suit by Triune and its Catholic owners who claim that the state mandate violates the rights guaranteed to them by the Illinois Religious Freedom Restoration Act, the Illinois Health Care Right of Conscience Act and the Illinois state constitution.  The court concluded that "Plaintiffs have raised a fair question as to the likelihood of success on their claim that the contraception mandate imposes a substantial burden on their religious exercise." Thomas More Society issued a press release announcing the decision.

Zoning Challenge Fails Under RLUIPA But Succeeds On Other Grounds

In New England Prayer Center, Inc. v. Planning & Zoning Commission of the Town of Easton, 2012 Conn. Super. LEXIS 3063 (CT Super, Dec. 13, 2012), the New England Prayer Center sought a special permit so it could build a house of worship on land it leased from the town.  The Zoning and Planning Commission granted the permit only with a number of conditions attached. Plaintiff challenged 5 of the conditions. A Connecticut state trial court held that plaintiff had not shown RLUIPA violations, but the court sustained on other grounds plaintiff's objections to the conditions placed on it. The trial court speculated that plaintiff had purposely made little effort to focus on RLUIPA claims in order to later assert those claims in federal court, as permitted by 42 USC 2000cc-2(c) where there has not been a full and fair adjudication of the claim in state court.

European Court of Human Rights Vindicates Britain In 3 of 4 Cases Denying Accommodation of Christian Beliefs

Yesterday, seven judges sitting as a Chamber of the European Court of Human Rights handed down a decision in four widely followed employment discrimination cases brought by Christians in Great Britain who sought accommodation of their religious beliefs. (See prior posting.) Two of the cases involve women employees whose employers prevented them from wearing a cross on a necklace.  The other two cases involve claims that religious beliefs opposed to same-sex marriage and homosexual relationships should be accommodated.  In Eweida and Others v. United Kingdom, (ECHR 4th Section, Jan. 15, 2013), the court held that there had been a violation of Art. 9 (Freedom of Religion) of the European Convention on Human Rights in only one of the cases.  By a vote of 5-2, the court held that the United Kingdom violated Art. 9 by failing to adequately protect British Airways employee Nadia Eweida who wanted an exception to the airline's uniform rules so she could wear a visible cross around her neck. The court awarded her damages of 2000 Euros and costs of 30,000 Euros.

British law bars employment discrimination unless the employer can show that its requirements constitute "a proportionate means of achieving a legitimate aim." As to Ms. Eweida, the Court majority said:

[A] fair balance was not struck. On one side of the scales was Ms Eweida’s desire to manifest her religious belief.... [T]his is a fundamental right: because a healthy democratic society needs to tolerate and sustain pluralism and diversity; but also because of the value to an individual who has made religion a central tenet of his or her life to be able to communicate that belief to others. On the other side of the scales was the employer’s wish to project a certain corporate image.... [W]hile this aim was undoubtedly legitimate, the domestic courts accorded it too much weight. Ms Eweida’s cross was discreet and cannot have detracted from her professional appearance. There was no evidence that the wearing of other, previously authorised, items of religious clothing, such as turbans and hijabs, by other employees, had any negative impact on British Airways’ brand or image. Moreover, the fact that the company was able to amend the uniform code to allow for the visible wearing of religious symbolic jewellery demonstrates that the earlier prohibition was not of crucial importance.

However in the case of Shirley Chaplain, a geriatric ward nurse at a state hospital, the court held unanimously that the requirement she remove her necklace displaying a cross to prevent injury when handling patients was justified.

The third case involved Lillian Ladele, a local registrar of births, deaths and marriages, who refused on religious grounds to conduct civil partnership ceremonies. In a 5-2 decision, the Court rejected Ladele's claims under Art. 9 and the non-discrimination requirements of Art. 14, holding that local authorities are given "a wide margin of appreciation" in balancing religious freedom rights with the mandate not to discriminate on the basis of sexual orientation. Two judges dissented, saying that the issue is primarily one of freedom of conscience. They continued:

Instead of practising the tolerance and the “dignity for all” it preached, the Borough of Islington pursued the doctrinaire line, the road of obsessive political correctness. It effectively sought to force the applicant to act against her conscience or face the extreme penalty of dismissal... Ms Ladele did not fail in her duty of discretion: she did not publicly express her beliefs to service users.  Her beliefs had no impact on the content of her job, but only on its extent. She never attempted to impose her beliefs on others, nor was she in any way engaged, openly or surreptitiously, in subverting the rights of others. Thus ... the means used were totally disproportionate.

The fourth case involved Gary McFarlane, who was a counselor at an organization that provides sex therapy and relationship counselling. He was dismissed after he expressed concern on grounds of his Christian religious beliefs about providing psycho-sexual therapy to same-sex couples. The court unanimously rejected  his claim of discrimination and infringement of religious freedom, saying:  "the most important factor to be taken into account is that the employer’s action was intended to secure the implementation of its policy of providing a service without discrimination."

The Chamber judgment can be appealed to the Court's 17-judge Grand Chamber. The Guardian reports on the decision, as does a press release from Alliance Defending Freedom.

Bibliography of 2012 Law and Religion Publications Released By AALS

The AALS Section on Law and Religion has just issued its Dec. 2012 Newsletter which includes a comprehensive 20-page bibliography of relevant books and articles published during 2012, as well as a list of blogs relating to law and religion. (Note: The linked newsletter is an updated Jan. 22 version).

1st Amendment No Bar To Court Deciding Claim on Injury While Lighting Votive Candle

In Brady v. Star of the Sea Church Corporation of Unionville, Connecticut, 2012 Conn. Super. LEXIS 3038 (CT Super. Ct., Dec. 14, 2012), a Connecticut trial court rejected a Catholic church's 1st Amendment defense to a damage claim against it by plaintiff who was injured while attempting to light a votive candle near the church's altar.  A loose kneeling pad in front of already lighted candles caused plaintiff to lurch forward and sustain injuries from her blouse being ignited. The court rejected the church's argument that placement of the kneeling pads and candles are a matter within its discretion in interpreting religious law. The court instead held that "plaintiff's claims can be resolved by the court applying only neutral principles of law that do not intrude on religious decisions within the church sanctuary."

"American Taliban" Inmate Wins RFRA Challenge To Muslim Prayer Restrictions

The media, such as this article in the Lafayette, Indiana Journal and Courier, are giving a good deal of attention to an Indiana federal district court's decision in Lindh v. Warden, Federal Correctional Institution, Terre Haute, Indiana, (SD IN, Jan. 11, 2013), the successful RFRA challenge by so-called "American Taliban" John Walker Lindh, now in federal prison, to a policy prohibiting daily group prayer by Muslim inmates housed in the prison's Communications Management Unit. The court found that:

congregate prayer activity that the Plaintiff seeks, which is the same congregate activity that occurred without serious incident for at least three years in the CMU, is not significantly different than any other group activity that is already allowed in the CMU. It is not a formal service with a sermon. It is instead a brief meeting to engage in ritualistic prayer. It is uncontested, for example, that Muslim prisoners may gather together in the multi-purpose room, without restriction on number, to listen or watch recordings, in Arabic, of verses from the Koran. Given that this activity is already allowed, along with a host  of other congregate activities, allowing persons to recite short formulaic prayers is entirely consistent with the activities that are allowed in the CMU.

The court concluded that current restrictions impose a substantial burden on Lindh's religious exercise, and are not the least restrictive means of achieving a compelling governmental interest.

A Survey of Law School Teaching Materials On Religious Liberty, Law and Religion

As the new semester begins at American law schools, here is a guide to in-print casebooks and  materials for teaching of law school courses on religious liberty or law and religion.  Books are listed by date of publication, most recent first:

• Edward J. Larson, Creationism in the Classroom: Cases, Statutes, and Commentary (West, 2013).
• John T. Noonan, Jr. and Edward M. Gaffney, Religious Freedom: History, Cases and Other Materials on the Interaction of Religion and Government, 3d (Foundation Press, 2011).
• Michael W. McConnell , John H. Garvey , Thomas C. Berg, Religion and the Constitution, Third Edition, (Wolters Kluwer, 2011).
• Understanding Islamic Law, (Lexis-Nexis, 2011).
• Leslie C. Griffin, Law and Religion, Cases and Materials, 2d (West, 2010).
• Arthur D. Hellman, William D. Araiza and Thomas E. Baker, First Amendment Law: Freedom of Expression & Freedom of Religion, Second Edition (Lexis-Nexis, 2010) with 2012 Supplement.
• Leslie C. Griffin, Law and Religion: Cases in Context, (Wolters Kluwer, 2010).
• Daniel O. Conkle, Constitutional Law - The Religion Clauses, 2d (Turning Point Series)  (Foundation Press, 2009).
• Alan E. Brownstein and Leslie Jacobs, Global Issues in Freedom of Speech and Religion: Cases and Materials (West, 2009).
• W. Cole Durham Jr. and Brett G. Scharffs, Law and Religion: National, International, and Comparative Law Perspectives, (Wolters Kluwer, 2009).
• Frank S. Ravitch, Law and Religion, A Reader: Concepts, Cases and Theory, 2d (West, 2008).
• Stephen G. Gey, Religion and the State, Second Edition, (Lexis-Nexis, 2006).
• James S. Serritella, et. al., Religious Organizations in the United States: A Study of Identity, Liberty, and the Law, (Carolina Academic Press, 2006).
• Eugene Volokh, The Religion Clauses and Related Statutes: Problems, Cases and Policy Arguments (Foundation Press, 2005).
• Martin H. Belsky and Joseph Bessler-Northcutt, Law and Theology, (Carolina Academic Press, 2005).
• Thomas C. Berg, The State and Religion in a Nutshell, 2d (West, 2004).
• Michael S. Ariens and Robert A. Destro, Religious Liberty in a Pluralistic Society, Second Edition (Carolina Academic Press, 2002).
• Rodney A. Smolla, The First Amendment: Freedom of Expression, Regulation of Mass Media, Freedom of Religion (Carolina Academic Press, 2000).
• Arnold H. Loewy, Religion and the Constitution: Cases and Materials (West, 1999), with 2002 Supplement.
• Justice Menachem Elon, Jewish Law (Mishpat Ivri): Cases and Materials, (Lexis-Nexis, 1999).

Satanic Temple Calls Rally To Thank Florida Governor For Backing Bill Allowing Student Inspirational Messages

Last year, a new Florida law authorized school districts to adopt policies allowing inspirational messages to be composed and delivered by students at student assemblies. (See prior posting.)  Yesterday the Huffington Post reported on a new development that likely will distress some who supported the new law. In a press release last week, the Satanic Temple announced a January 25 rally outside the Governor's Office to thank Gov. Rick Scott for his strong support of the bill.  According to the press release, the new law "has reaffirmed our American freedom to practice our faith openly, allowing our Satanic children the freedom to pray in school."

Florida Agrees To Reinstitute Prison Kosher Meals

Today JTA reports that the Florida Department of Corrections agreed last week to reinstitute kosher food availability for Jewish inmates. Florida cancelled its kosher food program 5 years ago. Last year the U.S. Justice Department sued the state under RLUIPA challenging the food program cancellation. (See prior posting.)  A state study group on the issue says that kosher meals cost the state $146,000 per year. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Haider Ala Hamoudi, Religious Minorities and Shari’a in Iraqi Courts, (Boston University International Law Journal, 2013, Forthcoming).
• Mark Anthony Frassetto, Catholic Emancipation: 1760-1829, (January 9, 2013).
• Donn Short, Queering Schools, GSAs and the Law: Taking on God, (Gerald Walton, ed, The Gay Agenda: Claiming Space, Identity & Justice, New York: Peter Lang, 2013).
• Wayne Barnes, Render Unto Rawls: Law, Gospel, and the Evangelical Fallacy, (January 11, 2013).
• Adilson Jose Moreira, We are Family! Legal Recognition of Same-Sex Unions in Brazil, (American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Joseph Benjamin Landau, DOMA and Presidential Discretion: Interpreting and Enforcing Federal Law, (Fordham Law Review, Vol. 81, 2012).
• Joseph Benjamin Landau, Symposium Foreword to Defense of Marriage Act: Law, Policy, and the Future of Marriage, (Fordham Law Review, Vol. 81, p. 537, 2012).
• Shafi'i Abdul Azeez Bello, Application of 'Urf in Islamic Law, (January 11, 2013).

From SmartCILP and elsewhere:

• Stewart L. Harris, Which Bible? Which God?, (12 Appalachian Journal of Law 151-166, 2012).
• Faisal Kutty, Free Expression and an Elusive Middle Ground: Part Two, (JURIST - Forum, Jan. 7, 2012).

Recent Book:

• Andrew Koppelman, Defending American Religious Neutrality, (Harvard Univ. Press, Jan. 2013), reviewed by Daily Northwestern.

Hobby Lobby Finds Way To Delay Accrual of Affordable Care Act Penalties

Hobby Lobby, whose high-profile challenge to the Affordable Care Act contraceptive coverage mandate has so far been unsuccessful, has found a way to put off the accrual of $1.3 million per day fines that it would otherwise face for refusing to furnish employees health insurance coverage that meets minimum federal standards. As reported by CNN, in statement from its general counsel Hobby Lobby says it has shifted the beginning of its health care plan year, thus delaying for several months the requirement that it comply with the Women's Preventive Services coverage mandate.  Under the coverage guidelines, compliance is required at the beginning of the company's first plan year after Aug. 1, 2012.

Turkey Agrees To Return Land To Famous Orthodox Seminary

In 2011, Turkey's prime minister Recep Tayyip Erdogan issued a decree returning to minority religious groups hundreds of properties that have been seized since 1936. (See prior posting.) Now according to Greek Reporter, on January 11 Turkey’s Council of Foundations agreed to return 470 acres, of forest land to Aya Triada Monastery Foundation which owns Istanbul's Greek Orthodox Halki (Heybeliada) Seminary. This is the largest expanse of property returned to a non-Muslim community since the 2011 decree. The return is particularly notable because the now-closed seminary trained generations of Greek Orthodox leaders including Patriarch Bartholomew. A push to reopen the seminary has been a high-profile religious liberty issue internationally. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Green v. Sneath, (3d Cir., Jan. 7, 2013), the 3rd Circuit rejected an inmate's claim that his 1st Amendment and RLUIPA free exercise rights were infringed when his Qur'an was taken from him during his cell transfer.

In Curry v. California Department of Corrections, 2013 U.S. Dist. LEXIS 1659 (ND CA, Jan. 4, 2013), a California federal district court rejected challenges by an inmate who is an adherent of Shetaut Neter to prison officials' refusal to provide him with a Kemetic diet in place of one of the prison's existing religious meal plans.

In Kleinfeldt v. Gore, 2013 U.S. Dist. LEXIS 1618 (SD CA, Jan. 2, 2013), a California federal district court dismissed with leave to amend an inmate's complaint that he was given kosher meat that was inedible and so was forced to compromise his Jewish religious beliefs.

In Allah v. Virginia, 2013 U.S. Dist. LEXIS 2526 (WD VA, Jan. 8, 2013), a Virginia federal district court permitted an inmate to proceed with his challenge to prison officials' refusal to recognize as a religion the Nation of Gods and Earths, and their refusal to permit NGE inmates to meet and hold religious services and otherwise practice their religion.

In Gayle v. Lamont, 2013 U.S. Dist. LEXIS 3257 (ED PA, Jan. 9, 2013), a Pennsylvania federal district court dismissed on statute of limitations grounds claims of a Rastafarian inmate that he received meals that did not meet his vegetarian diet requirements.

In Munn v. Morris, 2013 U.S. Dist. LEXIS 3287 (WD AR, Jan. 8, 2013), an Arkansas federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183982, Sept. 11, 2012) and dismissed an inmate's free exercise claim. The claim apparently was that the prison offered only Christian worship and had no chapel.

In Bowens v. Smith, 2013 U.S. Dist. LEXIS 2956 (ND NY, Jan. 8, 2013), a New York federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 183948, Dec. 7, 2012) and permitted an inmate to proceed with his complaint that while he was in Administrative Segregation he was not permitted to attend congregate religious services or even have a minister visit him.

In Meece v. Commonwealth of Kentucky, (KY App., Jan. 11, 2013), a Kentucky state appeals court rejected a Jewish death row inmate's complaint that he was only allowed to visit the Institutional Religious Center at the prison on the same day as other death row inmates and was not allowed to visit there on Friday evenings and Saturday mornings to observe his Sabbath. He was restricted to observing his Sabbath from his cell.