House Passes Bill To Allow FEMA Aid To Houses of Worship Damaged In Hurricane Sandy

As reported by the Huffington Post, by a vote of 354-72 yesterday the U.S. House of Representatives passed HR 592, the Federal Disaster Assistance Nonprofit Fairness Act.  The bill, which now goes to the Senate for consideration, adds houses of worship to the list of types of private non-profit facilities eligible for federal disaster aid from the Federal Emergency Management Agency. The change is aimed at assisting houses of worship in the Northeast that were damaged by Hurricane Sandy. Americans United and the ACLU opposed the bill on church-state separation grounds.

School Board Modifies Policy On Youth Ministers' Lunchtime Visits

The Conway, Arkansas Log Cabin Democrat reports that yesterday the Conway school board approved a policy that will allow youth ministers back on school campuses, after their lunch hour visits with students were temporarily suspended in reaction to a complaint by the Freedom From Religion Foundation. Some parents were particularly concerned with ministers approaching children without parental consent. The schools asked Liberty Institute to analyze the constitutionality of the school policy on outside visitors.  The organization's report (full text, scroll to pg. 62 of Board agenda items), was released late Thursday, too late for parents to get on Tuesday's agenda to comment on it.  It concluded that the existing visitor policy was neutral, but the Board on Tuesday adopted changes to reinforce that conclusion.  The new policy requires visitors to senior and junior high schools to maintain a list of students with whom they are affiliated. The principal can then bar a visitor from talking with students not on the visitor's list. At elementary and middle schools, parental consent is required before a visitor may have access to a student.

Scholar Argues Britain No Longer Needs Chief Rabbi

The Forward this week published an interesting opinion piece by a visiting scholar at Oxford arguing that in Britain, the position of Chief Rabbi has outlived its usefulness.  In December, a selection committee from Britain's Orthodox Jewish United Synagogue chose Rabbi Ephraim  Mervis to succeed Lord Jonathan Sacks as Chief Rabbi later this year.  According to op-ed author Keith Kahn-Harris:

[B]ehind the imposing title of chief rabbi lies an often beleaguered office, struggling to reconcile the United Synagogue’s different wings. Outside the United Synagogue, other denominations, from Reform to Haredi, are clear that the chief rabbi does not represent them. At the national level, other Jewish leaders are invited to most state events alongside him....

From the 18th to the early 20th century, the chief rabbi, whose office was modeled closely on the established Church of England, provided an arguably useful service in demonstrating to non-Jewish British society that Jews were respectable enough to be emancipated. But in today’s multicultural Britain, where even the established church doesn’t command the loyalty of more than a small minority of Britons, the chief rabbinate is clearly anachronistic.

Obama Issues Statement On Pope's Resignation

On Monday, President Obama issued the following statement on the resignation of Pope Benedict XVI:

On behalf of Americans everywhere, Michelle and I wish to extend our appreciation and prayers to His Holiness Pope Benedict XVI. Michelle and I warmly remember our meeting with the Holy Father in 2009, and I have appreciated our work together over these last four years.   The Church plays a critical role in the United States and the world, and I wish the best to those who will soon gather to choose His Holiness Pope Benedict XVI’s successor.

High School Students Object To Prom Being Open To LGBT Classmates

Time reported yesterday that in Sullivan, Indiana, a group of high school students are unhappy with the decision by the principal of Sullivan High School that anyone, including same-sex couples, can attend the high school prom.  A group of students met Sunday at a church to discuss holding a separate event that would exclude LGBT students. One supporter of the alternative prom commented: "We believe what the Bible says, that it says it’s wrong. We love the homosexuals, but we do not condone what they’re doing."

Artist Appeals Russian Court's Fine For Causing Religious Offense By Selling Pussy Riot Shirts

In Russia, fallout from last year's conviction of members of the punk rock band Pussy Riot for their protest performance in Moscow's Christ the Savior Cathedral continues. RAPSI today reports that in the Siberian city of Novosibirsk, artist Artyom Loskutov has filed an appeal of a 1000 ruble ($33 US) fine imposed on him by a magistrate's court for causing religious offense by selling Pussy Riot T-shirts.  In his appeal of last month's administrative case against him, Loskutov argues that his actions cannot be seen as causing religious offense.

European Court Rejects Mosque's Complaint Against Azerbaijan

The European Court of Human Rights last week, in a Chamber Judgment, dismissed claims against the government of Azerbaijan brought by a Muslim congregation in Baku.  In Juma Mosque Congregation v. Azerbaijan, (ECHR, Feb. 8, 2013), the congregation sued complaining that the government refused to re-register the congregation unless it subordinated itself to the Caucasus Muslim Board. The congregation was evicted from the state-owned Juma Mosque which they had occupied for 12 years.  The court held that the congregation had failed to exhaust the domestic remedies available to challenge the re-registration refusal. On the congregation's complaint that it was evicted from the mosque, the court held that there is no protected right for a religious group to obtain a place of worship from state authorities.

Becket Fund issued a press release on the decision saying:

The mosque was targeted by the authorities because it would not agree to replace its existing religious leader, Ilgar Ibrahimoglu Allahverdiyev–a prominent democracy and religious liberty activist–with a government-appointed imam

Good News Clubs Sue Claiming Unequal Treatment By School District

In Harrisburg, Pennsylvania last week, the organization that operates after-school Good News Clubs filed suit in federal court challenging on constitutional grounds the school district's refusal to include it as a non-profit community service group that may use school facilities without charge.  Instead the district told the group that it would be charged $1200 per year per school for after-school use of space for its activities. The complaint (full text) in Child Evangelism Fellowship of Dauphin County, Inc. v. Harrisburg School District, (MD PA, filed 2/8/2013), alleges:

In depriving Plaintiff access on equal terms, the District applied its Policy in an unconstitutional manner, thereby violating the free speech, free exercise, due process, and equal protection clauses of the First and Fourteenth Amendments tothe United States Constitution.

The Harrisburg Patriot-News reports on the lawsuit.

Israeli Police Detain 10 Jewish Women In Conflict Over Egalitarian Prayer Customs At Western Wall

In Israel, the ongoing struggle over Jewish women's rights to egalitarian prayer at the Western Wall in Jerusalem continues.  The New York Times and the Jerusalem Post report that earlier today ten women were detained by police after the women prayed there wearing the type of prayer shawls (tallitot) traditionally worn by men.  The Orthodox Jewish authorities who control activities at the Western Wall allow women to wear colorful "female style" prayer shawls that resemble a scarf, but do not allow "male tallitot" which are blue and white or black and white and are worn folded across the shoulders. The Israeli Supreme Court ruled in 2003 that worshipers at the Western Wall must "uphold the customs" of the site. The group known as Women of the Wall have gathered once a month for the last 24 years on Rosh Chodesh (the beginning of each Jewish month) to challenge the Orthodox limitations on women's rights there.  Police confiscated male prayer shawls carried by women through security check points, but men sympathetic to their cause smuggled in prayer shawls for them to wear.

With the women praying at the Wall today were veterans from the 1967 Six Day War who fought at the Western Wall.  Those detained by police-- after prayers were completed and they were exiting the site-- included two U.S. rabbis, an American-born Israeli Reform Rabbi who is the sister of comedienne Sarah Silverman, and a pregnant rabbinical student. Apparently some of the women did not agree to the conditional release that typically includes a bar on them from entering the Western Wall Plaza for 15 days.

Pope Benedict XVI Will Resign On Feb. 28

Pope Benedict XVI announced (full text and audio) today that he will resign the Papacy on Feb. 28:

[I]n today’s world, subject to so many rapid changes and shaken by questions of deep relevance for the life of faith, in order to govern the bark of Saint Peter and proclaim the Gospel, both strength of mind and body are necessary, strength which in the last few months, has deteriorated in me to the extent that I have had to recognize my incapacity to adequately fulfill the ministry entrusted to me. For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter, entrusted to me by the Cardinals on 19 April 2005, in such a way, that as from 28 February 2013, at 20:00 hours, the See of Rome, the See of Saint Peter, will be vacant and a Conclave to elect the new Supreme Pontiff will have to be convoked by those whose competence it is.

Reporting on developments, the New York Times commented: "While there had been questioning about his health and advancing years, his announcement — even by the Vatican’s official account — stunned many."

Parishioner's Arrest For Trespass Does Not Violate 1st or 4th Amendments

In Lye v. City of Lacey, (WD WA, Feb. 8, 2013), a Washington federal district court rejected claims that police officers violated Hui Son Lye's 1st and 4th Amendment rights when they arrested her for trespass at the request of Sacred Heart Catholic Church. The Church issued Lye a "no trespass" order after she disrupted services several times with her demands that the Church conduct Mass in Korean.

Recent Articles of Interest

From SSRN:

• Yossi Nehushtan, What are Conscientious Exemptions Really About?, (Oxford Journal of Law and Religion, Forthcoming).
• Ivan E. Bodensteiner, Are Catholic Bishops Seeking a Religious Preference or Religious Freedom?, (Valparaiso University Legal Studies Research Paper No. 13-1, Feb. 2013).
• Lena Salaymeh, Commodifying 'Islamic Law' in the U.S. Legal Academy, (Journal of Legal Education, 2014, Forthcoming).
• Mark Strasser, The Endorsement Test Is Alive and Well: A Cause for Celebration and Sorrow, (39 Pepperdine Law Review 1273-1315 (2013)).
• George Harinck and Hans-Martien Ten Napel, Democracy: Instrument for or Expression of a Christian Political Order?, (Journal of Inter-Religious Dialogue, Issue 11, p. 42, 2013).
• Mark Strasser, Leaving the Dale to Be More FAIR: On CLS v. Martinez and First Amendment Jurisprudence, (11 First Amendment Law Review 235-89 (2012)).
• Matthew B. O'Brien, Brief of Amicus Curiae Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal, (January 29, 2013).

Court Dismisses Contraceptive Coverage Mandate Challenge By Illinois Catholic Organizations On Standing and Ripeness Grounds

In Conlon v. Sebelius, (ND IL, Feb. 8, 2013), an Illinois federal district court dismissed on standing and ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by Catholic dioceses and related Catholic Charities organizations in Joliet and Springfield, Illinois, as well as by a Catholic high school. The court concluded that the government's March 2012 Advance Notice of Proposed Rulemaking made it clear that the government intends to address concerns expressed by employers with religious objections to contraception. The Chicago Tribune reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Beaver County Jail, 2013 U.S. Dist. LEXIS 13702 (WD PA, Feb. 1, 2013), a Pennsylvania federal magistrate judge dismissed an inmate's claim that his free exercise rights were violated by the refusal to provide him with vegetarian meals.

In Sloane v. Nevada, 2013 U.S. Dist. LEXIS 13332 (D NV, Jan. 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185431, Oct. 12, 2012) and allowed a Jewish inmate to proceed with his complaint that Seder supplies sent to him were delivered too late for him to use them for the First Seder. However the court dismissed his complaint that he did not receive kosher for Passover food on two days.

In Moore v. Gloucester County Jail, 2013 U.S. Dist. LEXIS 15326 (D NJ, Feb. 5, 2013), a New Jersey federal district court dismissed a Muslim inmate's complaint that while being held in the county jail, on two occasions his prayers were interrupted.  The court also dismissed his complaint that the jail does not provide Muslim inmates with a place to conduct prayers or attend Jumuah service, and only provides for church services. Plaintiff sought $50 million in damages.

In Roberts v. Schofield, 2013 U.S. Dist. LEXIS 16042 (MD TN, Feb. 6, 2013), a Tennessee federal magistrate judge recommended dismissing, in part on mootness grounds, the complaint by two prisoners that their correctional facility did not serve proper Kosher meals nor allow them to engage in certain other Jewish religious observances. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 25271, Feb. 25, 2013. UPDATE2: The court subsequently granted plaintiff's motion to reconsider and refused to dismiss certain official capacity claims against defendants, and denied a motion to dismiss for improper venue. (2013 U.S. Dist. LEXIS 62013, April 30, 2013).

In Haas v. Spencer, 2012 Mass. Super. LEXIS 374 (MA Super., Dec. 6, 2012), a Massachusetts state trial court rejected two inmates' constitutional and statutory challenges to their temporary suspension of access to the building in which religious services were held. The step was taken because the one of the inmates had gotten the Catholic chaplain improperly to mail letters for them while the other got the chaplain to look up information in the Inmate Management System.

In Davilla v. National Inmate Appeals Coordinator, 2013 U.S. Dist. LEXIS 15991 (SD GA, Feb. 6, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16940, Jan. 22, 2013) and dismissed an inmate's claim that his rights under the 1st Amendment and RFRA were infringed when the requirement that he purchase all personal religious property from the commissary inventory or through an approved catalogue source precluded him from obtaining Santeria beads and cowrie divination shells that contain "ache".

In Rainey v. Huertas, 2013 U.S. Dist. LEXIS 16798 (D CO, Feb. 7, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16799, Jan. 17, 2013) and dismissed an inmate's claim that his religious rights were infringed when the religious diet he was served was not a "mechanical soft diet" as ordered by the facility's medical department.

Former Prison Chaplain's Employment Discrimination Claims Rejected

In Askew v. New York State, (ND NY, Feb. 6, 2013), a New York federal district court dismissed employment discrimination and retaliation claims brought by an African-American Protestant minister who worked as the Department of Corrections Protestant Ministerial Program Coordinator. Plaintiff claimed that her supervisors discriminated in favor of the Catholic Coordinator in the manner they approved of meetings and training opportunities, assigned duties, and offered speaking appearances. The court also dismissed her claim that her free speech and free exercise rights were infringed when she was not approved to speak or participate in Protestant faith and community activities in her official capacity.

Bergholz Amish Defendants Receive Sentences Up to 15 Years for Hate Crime Assaults

The U.S. Attorney's Office for the Northern District of Ohio announced that on Friday 16 defendants were sentenced on hate crime charges growing out of a series of assaults on members of a rival Amish group in which the victims'  hair or beards were cut. (See prior posting.) As reported by the Cleveland Plain Dealer, Bergholz Amish bishop Samuel Mullet received a 15 year sentence. Other defendants received sentences ranging from 7 years to just over one year. In imposing the sentences, federal district judge Dan Aaron Polster told the defendants:

Each and every one of you did more than terrorize, traumatize and disfigure the victims.You trampled on the Constitution.

9th Circuit In 2-1 Decision Rejects Church's Challenge To Town's Sign Restrictions

In Reed v. Town of Gilbert, (9th Cir., Feb. 8, 2013), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which temporary directional signs can be displayed.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. The majority concluded that the ordinance does not violate free expression guarantees since it is not a content-based regulation, and the restrictions are tailored to serve a significant governmental interest.  The majority also rejected free exercise, equal protection and overbreadth-vagueness challenges.

Judge Watford dissenting argued that the ordinance is content-based because it favors political and ideological signs over signs promoting events sponsored by non-profit organizations. (See prior related posting.)

Egyptian Court Orders 30-Day Ban On YouTube Over Anti-Muslim Video

According to AhramOnline, Egypt's administrative court today ordered the government to block access to the website YouTube for 30 days because YouTube carried the video trailer for the controversial move "Innocence of Muslims." (See prior related posting.) The order also applies to other websites that aided in sharing the video. AP reports that Judge Hassouna Tawfiq labeled the video “offensive to Islam” and to the Prophet Muhammad. The lawsuit was filed in September by Hamed Salem, an attorney who has filed a number of controversial lawsuits.

3rd Circuit Denies Stay Pending Appeal In Small Business Challenge to Contraceptive Coverage Mandate (Corrected)

In a 2-1 decision, the U.S. 3rd Circuit Court of Appeals refused to grant a stay pending appeal in a small business' challenge to the Affordable Care Act contraceptive coverage mandate. In Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, (3rd Cir., Feb. 7, 2013), Judge Rendell in her majority opinion concluded that the Mennonite owners of a wood specialties manufacturing company had failed to show a reasonable likelihood of success on the merits of their free exercise, RFRA or Establishment Clause claims. (See prior related posting.)

Judge Garth, concurring, emphasized that:

for-profit corporate entities, unlike religious non-profit organizations, do not — and cannot — legally claim a right to exercise or establish a "corporate" religion under the First Amendment or the RFRA.

He also agreed with the district court that:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Judge Jordan dissented, arguing first that injunctive relief should be available "if the threatened harm is particularly great, despite a showing on 'likelihood of success' that is less than would usually be required." He added:

The government is at pains to point out ... that the “preventive health services provisions [of the ACA] require coverage of an array of recommended services...."  [However] "There’s just one fatal dish," is non-responsive to [plaintiffs'] point, which is that their religious liberty is directly threatened by the government’s edict....

An entity’s incorporated status does not ... alter the underlying reality that corporations can and often do reflect the particular viewpoints held by their flesh and blood owners....

Policymic reports on the decision. [Thanks to Jeff Pasek for the lead.] 

[Note: An earlier version of this posting contained 2 errors.  It referred in the body of the post to the incorrect circuit.  It also had an incorrect date for the decision. That incorrect earlier date stemmed from the fact that 3rd Circuit opinions contain, without explanation, the date on which the clerk's office forwards the motion to the 3-judge panel. I incorrectly used that  date. Thanks to Howard Bashman for the corrections.]

Catholic Bishops Say New HHS Contraceptive Mandate Proposal "Falls Short"

In a Statement (full text) issued yesterday, the U.S. Conference of Catholic Bishops said that the Department of Health and Human Services' Feb. 1 Notice of Proposed Rulemaking attempting to accommodate non-profit religious organizations' objections to the contraceptive coverage mandate "shows some movement by the Administration but falls short of addressing U.S. bishops' concerns." In the statement, Cardinal Timothy Dolan argued that Catholic health care, education and charities should have the same total exemption as churches. He indicated that it is unclear how much involvement religious organizations will be required to have in arranging for required separate policies. Finally he objected to the lack of any conscience protection to private for-profit employers and insurers.