Religion Clause

Wednesday, February 27, 2013

Indian Court Says Child Marriage Ban Overrides Muslim Personal Law

Times of India reports that yesterday the high court in the Indian state of Karnataka has ruled that the Prohibition of Child Marriage Act which sets the minimum age for marriage at 18 overrides provisions of the Muslim Personal Law. The court dismissed a petition filed on behalf of a 17-year old Muslim girl who claimed that the Prohibition of Child Marriage Act is not applicable to Muslims because Muslim Personal Law permits marriage of a girl after she has attained puberty.

Hungary's Constitutional Court Invalidates Law On Status of Religious Communities

AP reports that on Tuesday, Hungary's Constitutional Court struck down the country's law on the Legal Status of Churches, Denominations and Religious Communities that was passed by the National Assembly (Hungary's parliament) at the end of December 2011 (see prior posting). The law recognized only 14 "traditional" religious faiths instead of the 300 that had previously been recognized. Faiths not specified in the new law were permitted to apply to parliament for recognition if they had been operating in Hungary for at least 20 years. The law was designed to prevent groups that do not carry out religious activities from taking advantage of tax benefits and support granted to churches.

In this week's decision (full text in Hungarian), the Constitutional Court struck down the law because parliamentary decisions on recognition cannot be appealed, no written justification for refusing recognition is called for, and the process lends itself to political influence. However this invalidation may be short-lived. The government coalition led by Prime Minister Viktor Orban's Fidesz party is proposing amendments to Hungary's 2011 Basic Law, the country's constitution. One of these would explicitly permit the National Assembly to decide which churches are to be officially recognized. Also many of the groups denied recognition under the 2011 law have by now disappeared or converted themselves into associations.

Tuesday, February 26, 2013

6th Circuit: City Not Required To Add "Winter Solstice" Sign To Holiday Display

In Freedom From Religion Foundation, Inc. v. City of Warren, Michigan, (6th Cir., Feb. 25, 2013), the U.S. 6th Circuit Court of Appeals upheld a holiday display put up by the city of Warren, Michigan in its civic center. The court held that the display-- which included a lighted tree, reindeer, snowmen, a "Winter Welcome" sign and a nativity scene-- does not offend the Establishment Clause. It also held that the city was not required to include near the display a Winter Solstice sign composed by the Freedom From Religion Foundation. The sign included language calling religion "myth and superstition." The court said:

The short answer to the Foundation’s Winter Solstice request was that the Supreme Court has long permitted exhibits like the Warren holiday display, and the Establishment Clause does not convert these displays into a seasonal public forum, requiring governments to add all comers to the mix and creating a poison pill for even the most secular displays in the process.

The court also concluded that the mayor's letter rejecting FFRF's request, despite some questionable statements in it, did not turn the city's holiday display into an impermissible establishment of religion.

Finally, the court emphasized the the holiday display involved is "quintessentially government speech." Quoting the 9th Circuit, it added: "Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist." The Detroit Free Press reports on the decision.

3 Abuse Suits Filed Against Catholic Diocese and Order After Priest Commits Suicide

WKBN News reported yesterday on the third lawsuit growing out of sexual abuse of teenage boys by Franciscan Brother Stephen Baker at Catholic high schools in Warren, Ohio and Johnstown, Pennsylvania. Baker had been placed under supervision in a monastery in 2000 when complaints against him were first raised. Last month, Baker committed suicide, leaving notes apologizing for his actions. Charges against Baker became widely known last month after a Boston attorney announced a settlement on behalf of 11 victims. The settlement was paid by the Third Order Regular Franciscans and the Youngstown Catholic Diocese. There followed three lawsuits filed in Pennsylvania state court against the Franciscans and the Johnstown-Altoona Catholic Diocese. Baker allegedly used his position as athletic trainer to give teenage boys massages that included fondling their genitals and digitally penetrating them. Last week, the Youngstown diocese announced it had written 1200 adults who were students during the years that Baker taught in diocese schools, asking them to come forward with any other charges against Baker.

Ultra-Orthodox Jewish Schools Seeking Religious Accommodations In Complying With Federal School Nutrition Rules

The Forward reported yesterday on the unique problems of religious accommodation in complying with the federal Healthy, Hunger-Free Kids Act of 2010 faced by ultra-Orthodox Jewish schools. Under the Act and implementing regulations, federal assistance for a school's food program is available only if the school's menus meet specified nutritional guidelines. Orthodox Jewish schools have encountered two issues, only one of which has been resolved so far. First, government standards limited the amount of grain-based food that could be served. Orthodox Jewish students needed a slice of bread in order to say the traditional Hamotzi-- the blessing over bread with which each meal is begun. That left no room for other grain-based foods. USDA officials agreed that schools could increase the amount of grain consumption, so long as it stayed within the calorie limit set out in USDA regulations.

The second issue involves the requirement to serve leafy dark-green vegetables as part of school meals. Ultra-Orthodox standards for kosher observance require special inspection of leafy vegetables to be sure that they are not insect infested. This would pose prohibitive costs on schools, and if they did not provide for inspection parents would advise their children not to eat the vegetables. The schools are consulting with a nutritionist to attempt to find equally nutritious alternatives.

Monday, February 25, 2013

Scottish Cardinal Resigns Amid Charges Of Inappropriate Sexual Behavior

Vatican Radio this morning announced that Pope Benedict XVI has accepted the resignation of Scotland's Cardinal Kieth O'Brien. The resignation follows a report Saturday in The Observer that 3 priests and a former priest have charged O'Brien with "inappropriate behavior" involving inappropriate contacts, beginning in the 1980's. According to The Observer:

The four, from the diocese of St Andrews and Edinburgh, have complained to nuncio Antonio Mennini, the Vatican's ambassador to Britain, and demanded O'Brien's immediate resignation. A spokesman for the cardinal said that the claims were contested.

O'Brien, who is due to retire next month, has been an outspoken opponent of gay rights, condemning homosexuality as immoral, opposing gay adoption, and most recently arguing that same-sex marriages would be "harmful to the physical, mental and spiritual well-being of those involved". Last year he was named "bigot of the year" by the gay rights charity Stonewall.

According to the New York Times, a statement issued by the Diocese of Edinburgh on O'Brien's behalf yesterday said: "A number of allegations of inappropriate behavior have been made against the cardinal The cardinal has sought legal advice, and it would be inappropriate to comment at this time. There will be further statements in due course."

In Australia, Parliament Debates Scope of Religious Exemptions In Proposed Anti-Discrimination Law Revisions

The Australian reported last week on the controversy over the scope of exemptions for religious organizations in proposed Australian civil rights legislation. Labor proposed a bill-- the Human Rights and Anti-Discrimination Bill 2012-- to consolidate Australia's five existing anti-discrimination laws. Under the proposal, exemptions for religious organizations were to be largely retained, except for government-funded providers of care for the elderly where there is concern about discrimination against same-sex couples seeking to enter care facilities. However the Senate Legal and Constitutional Affairs Legislation Committee in a report released Feb 21 (full text) has recommended much narrower religious exemptions in the new law. (Full text of recommendations). Opposition members of the Senate in turn, concerned about protecting Church schools, called on the Attorney General to retain current exemptions in the new law.

German Prosecutor Drops Circumcision Prosecution of Rabbi

Applying Germany's new law enacted in December to confirm the legality of religious circumcisions performed with parental consent by specially trained members of the religious community, a court in the German city of Hof has dismissed charges that had been filed last year against a rabbi. According to the European Jewish Congress, the criminal charges were dropped last Thursday by the prosecutor who said that Rabbi David Goldberg has satisfied all the requirements of the new law.

Sunday, February 24, 2013

Recent Prisoner Free Exercise Cases

In Abel v. Martel, 2013 U.S. Dist. LEXIS 19638 (ED CA, Feb. 13, 2013), a California federal magistrate judge recommended dismissing plaintiff's complaint that his rights were violated when authorities denied him the ability to purchase and personally possess certain religious items approved for group use by Wiccans, and when they confiscated and destroyed several of his religious items including ceremonial wands, a crystal and chalices.

In Shoemaker v. Williams, 2013 U.S. Dist. LEXIS 19641 (D OR, Feb. 11, 2013), an Oregon federal district court rejected a Muslim inmate's claim that his rights were violated when the halal meals he was served only contained meat on two Islamic holidays per year. The remainder of the time they were only vegetarian or fish meals. Prepackaged halal meat meals could be purchased from the commissary.

In Anderson v. Rettke, 2013 U.S. Dist. LEXIS 17793 (D MN, Feb. 11, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 18745, Jan 2, 2013) and dismissed a jail inmate's complaint that he was not permitted to conduct a Native American pipe ceremony. Authorities said it would create a safety hazard from smoke and fire.

In Gutman v. Wrigglesworth, 2013 U.S. Dist. LEXIS 18350 (WD MI, Feb. 12, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185987, Oct. 9, 2012) and dismissed a Jewish inmate's complaint regarding access to and removal from a kosher diet, his claim that he was not informed of the rules regarding participation in a kosher diet, and his allegation that he was not permitted to possess certain religious items.

In Shabazz v. Parris, 2013 U.S. Dist. LEXIS 20264 (CD CA, Feb. 13, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's conclusory free exercise allegations where the only facts alleged were that he is Muslim and the arresting officer used a religious epithet.

In Jouvert v. New York State, 2013 U.S. Dist. LEXIS 11509 (ND NY, Jan. 29, 2013), a New York federal district court agreed with a magistrate's recommendation (2012 U.S. Dist. LEXIS 186103, Oct. 23, 2012) and dismissed a former inmate's claim that he was denied participation in Islamic classes, Islamic Friday services, and the 2009 Ramadan fast.

In Shannon v. Nero, 2013 U.S. Dist. LEXIS 21029 (D MD, Feb. 8, 2013), a Maryland federal district court dismissed an inmate's complaint that while he was confined to administrative segregation he could not attend monthly Jewish religious services, and rejected his claim that he was denied kosher meals.

In Owens v. Beckley, 2013 U.S. Dist. LEXIS 22223 (SD WV, Feb. 19, 2013), a West Virginia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22225, Jan. 31, 2013) and refused to issue a preliminary injunction sought by plaintiff who wanted authorities to treat New Age Druidry as a separate religion and provide means to practice it, rather than dealing with it as an aspect of the Wiccan program. Plaintiff also sought to prevent officers from retaliating against him and others, claiming that an officer had raided the Wiccan locker and seized a book and a cord.

In Martin v. Lee, 2013 U.S. Dist. LEXIS 22459 (WD LA, Feb. 14, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22461, Jan. 17, 2013) and dismissed a Muslim inmate's complaint that his right to participate in Friday Jumah services has been curtailed and that he is being served food that may contain pork products.

Factual Issue Remains In Establishment Clause Challenge To School Board's Outsourcing

In Kucera v. Jefferson County Board of School Commissioners, (ED TN, Feb. 21, 2013), a Tennessee federal district court allowed two plaintiffs-- a former teacher and the former principal in an alternative school-- to proceed with their claims that a Tennessee school district violated the Establishment Clause when it closed the alternative school in which they were employed and contracted with Kingswood Academy, a Christian school, to provide alternative school services. In denying defendants' motion for summary judgment, the court said that there remains an issue of fact as to whether or not the alternative day program offered by Kingswood is religious in nature in the same way its residential program is. (See prior related posting.)

Saturday, February 23, 2013

Israel's Haredi Religious Parties Fear Loss of Influence In New Government

In an article titled Haredi Power on the Brink, The Forward yesterday reported the two largest Israeli religious parties representing the ultra-Orthodox ("Haredi") Jewish community are now seriously concerned about the continuation of their political power. The results of the recent election for members of Israel's Knesset have left the two parties-- United Torah Judaism and Shas-- facing the possibility of a government coalition that could threaten the continuation of military draft exemptions for yeshiva students and large amounts of government financial support for yeshivas (religious schools). According to the Forward, the most significant "sign of panic" from the two Haredi parties that fear being left out of the ruling coalition is their courting of their traditional opponent-- the Modern Orthodox Religious Zionist party, Jewish Home-- which may become part of the governing coalition. (See prior related posting.)

Vatican Says Media Publishing Embarrassing Stories To Affect Papal Election

According to Thursday's Irish Times (quoting the Italian daily La Repubblica), Pope Benedict’s recent resignation was partly impelled by a damaging report commissioned at Benedict’s direction after the leaking of confidential Vatican documents last year by the Pope's butler. Prepared by 3 senior cardinals --Julian Herranz, Josef Tomko and Salvatore De Giorgi-- the report reportedly concludes that various lobbies, including a gay lobby, exercise improper influence in Vatican affairs. According to La Repubblica, the lobbies were involved in adultery and in stealing relating to the Vatican Bank. In an unusual statement today (full text) the Vatican Secretary of State reacted to the press reports, characterizing them as attempts to influence the selection of the next Pope. The statement says in part:

Over the course of the centuries, Cardinals have had to face many forms of pressures, exerted upon individual electors or upon the College of Cardinals itself.... If in the past ... States, sought to influence the election of the Pope, today there is an attempt to do this through public opinion.... It is deplorable that, as we draw closer to the moment that the Conclave will begin ... there is a widespread distribution of often unverified, unverifiable, or even completely false news stories that cause serious damage to persons and institutions.

Friday, February 22, 2013

9th Circuit: Inmates State Plausible Establishment Clause Objection To Refusal To Hire Wiccan Chaplain

In Hartmann v. California Department of Corrections and Rehabilitation, (9th Cir., Feb. 19, 2013), the U.S. 9th Circuit Court of Appeals held that Wiccan inmates had plead sufficient facts to move forward with plausible state and federal Establishment Clause objections to the California prison system's refusal to hire a Wiccan chaplain. California prisons employ Catholic, Jewish, Muslim, Native American, and Protestant chaplains. Prisoners of other faiths must rely on these chaplains, or on volunteer chaplains. Plaintiffs claim that the state does not apply "neutral, equitable, and unbiased criteria" to determine chaplain hiring needs or other religious accommodations, and assert that the state's chaplain-hiring policy "constitutes an unconstitutional endorsement of one religion over another." The court affirmed the dismissal of plaintiffs' free exercise, RLUIPA and equal protection claims. AP reports on the decision.

Amish Convicted In Assaults On Rivals Appeal Convictions

Yesterday AP reported that all 16 of the members of the Bergholz Amish sect who were convicted last September in a series of beard- and hair-cutting assaults on a rival Amish group have appealed their federal hate-crimes and conspiracy convictions to the U.S. 6th Circuit Court of Appeals. Earlier this month, the group's leader Samuel Mullet received a 15 year sentence, while other defendants received sentences ranging from 7 years to just over one year.

Egypt's High Administrative Court OK's Police Wearing Beards

According to Middle East Online, Egypt's High Administrative Court on Wednesday ruled that members of Egypt's police force may grow beards. Under now-ousted President Hosni Mubarak, as a method of opposing Islamist forces informal rules barred police and senior government officials from wearing beards. Christians and the liberal opposition to the Muslim Brotherhood may see this week's Court's ruling as an invitation to Islamists to further press their practices on Egyptian society.

Couple Denied Utilities May Pursue Religious Discrimination Claim Against FLDS Town

In Cooke v. Town of Colorado City, Arizona, (D AZ, Feb. 13, 2013), an Arizona federal district court, while dismissing some of plaintiffs' causes of action, permitted them to move ahead with their claims that Colorado City, Arizona and two utility companies discriminated against them on the basis of religion. Plaintiffs, husband and wife, allege they were denied utility connections for their home because they are not members of the locally dominant Fundamentalist Church of Jesus Christ of Latter Day Saints. The husband was a former FLDS member. The court held that plaintiffs may move ahead with their claims under the Federal and Arizona Fair Housing Acts and Arizona anti-discrimination laws. KUTV News reports on the decision.

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food. A 3-judge panel, in a 2-1 decision, held 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. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

[Thanks to Howard Bashman for the lead.]

Thursday, February 21, 2013

Lumbees Not Included In DOJ's Non-Prosecution Policy On Eagle Feathers

As previously reported, last October the Justice Department formalized a non-prosecution policy that allows members of federally recognized Indian tribes to possess and use eagle and other protected bird feathers for religious and cultural purposes. Earlier this week, McClatchy Newspapers reported on the problems that still remain for the Lumbee Indians of North Carolina who are not a federally recognized tribe. Their possession of eagle feathers remains illegal, as does that by other unrecognized tribes. The Lumbees have tried unsuccessfully over the years to obtain federal recognition

Report Says Islamic Finance Taxed Unfairly In MENA Region

The Qatar Financial Centre Authority last week released Phase One of a report on disparate tax treatment of Islamic financial products in the Middle East and North Africa. The 83-page report on Cross Border Taxation of Islamic Finance in the MENA Region finds:

Islamic finance is of growing importance within the MENA region, but the taxation systems of almost all countries were developed in an environment of conventional finance. This can mean that Islamic finance suffers a tax burden that is not suffered by conventional finance.

The reason is that most transactions that are undertaken in Islamic finance seek to achieve economic outcomes which are similar to the economic outcomes achieved by conventional finance. However to achieve these economic outcomes the Islamic finance transactions typically require more component steps than do the equivalent conventional financial transactions....

The additional transactions required by Islamic finance are at risk of being subject to transfer taxes or to taxes on income or gains.... The researchers considered two alternative approaches to the modification of tax law to facilitate Islamic finance....