Pussy Riot Band Member Denied Parole After She Goes On Hunger Strike

Reuters and The Guardian reported yesterday that in Russia, Pussy Riot punk rock band member Maria Alyokhina who is serving a two-year jail sentence for the group's anti-Putin  protest performance in Moscow's Christ the Savior Cathedral (see prior posting) has now gone on a hunger strike.  She is protesting a court's refusal to allow her to be personally present at her parole hearing. She was only allowed to attend by video link, and had to file all motions by fax. In protest she also barred her lawyers from representing her further during the hearing. According to Radio Free Europe, the parole hearing resumed today, with a court-appointed lawyer representing Alyokhina. The court, in the Russian town of Berezniki then denied her parole request.

Faith Healing Couple Charged With 3rd Degree Murder In Death of Second Child

UPI reports that in Philadelphia, prosecutors yesterday charged Catherine and Herbert Schaible with third degree murder in the faith healing death of their 7-month old son who died of bacterial pneumonia and dehydration. (See prior posting.)  The charges came after the medical examiner ruled Tuesday that the death was a homicide. The couple had previously been convicted of manslaughter and sentenced to 10 years' probation in the death of another of their children for whom they failed to seek medical treatment. The couple belong to the First Century Gospel Church which teaches that illness is to be healed through prayer.

7th Circuit Hears Oral Arguments In 2 Contraceptive Coverage Mandate Cases

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in two cases challenging the Affordable Care Act contraceptive coverage mandate.  One was Korte v. U.S. Department of Health and Human Services (Audio of the full oral argument).  In the case, an Illinois federal district court denied a preliminary injunction sought by a for-profit construction business and its controlling shareholders in a free exercise challenge to the contraceptive coverage mandate under the Affordable Care Act.  (See prior posting.) The 7th Circuit then issued an injunction preventing enforcement while the appeal was pending. (See prior posting.) Reporting on yesterday's arguments, the Chicago Tribune said:

[I]n an unexpected twist ... the lawyer for the U.S. government argued that accommodating the business owners' religious beliefs could violate the First Amendment as well.... Alisa Klein, an attorney for the U.S. Department of Justice, said allowing a company to impose a religious framework on a diverse workforce would amount to fostering or enabling religious practice.

The second case argued yesterday was Grote v. Sebelius. (Audio of the full oral argument.) In the case an Indiana federal district court refused to grant a preliminary injunction to a for-profit business that manufactures vehicle safety systems and its Catholic owners who claim that their religious liberty rights are infringed by the mandate. (See prior posting.) The 7th Circuit in this case also issued an injunction preventing enforcement while the appeal is pending. (See prior posting.)

Arizona State Legislator Objects To Invocation Delivered By Atheist House Member

AP today reports on an unusual controversy in Arizona over the opening prayer offered by one member of the state House of Representatives.  Members of the House rotate in offering the invocation. On Tuesday it was Rep. Juan Mendez's turn.  With members of the Secular Coalition for Arizona in the visitor's gallery, Mendez, an atheist, asked House members not to bow their heads but to instead look around at each other "sharing together this extraordinary experience of being alive and of dedicating ourselves to working toward improving the lives of the people of our state." The next day, Rep. Steve Smith complained that Mendez's remarks did not qualify as a prayer. He asked other House members to join him in a second prayer in repentance for there not being one the prior day. Smith said that Mendez's remarks were analogous to someone leading the Pledge of Allegiance by  pledging "I love England."

Texas Legislature Passes Bill On Winter Holidays In Schools

On Monday, the Texas legislature gave final passage and sent to the governor for his signature HB 308 that attempts to protect public schools' teaching about Christmas and Hanukkah.  The bill provides:

(a) A school district may educate students about the history of traditional winter celebrations, and allow students and district staff to offer traditional greetings regarding the celebrations, including: (1)"Merry Christmas"; (2)"Happy Hanukkah"; and (3)"happy holidays."

(b) Except as provided by Subsection (c), a school district may display on school property scenes or symbols associated with traditional winter celebrations, including a menorah or a Christmas image such as a nativity scene or Christmas tree, if the display includes a scene or symbol of: (1) more than one religion; or (2) one religion and at least one secular scene or symbol.

(c) A display relating to a traditional winter celebration may not include a message that encourages adherence to a particular religious belief.

National Post reports on the bill's passage.

Arizona Legislature Gives Final Passage Expansion of Sate RFRA; 2 Other Bills Near Final Legislative Action

In Arizona yesterday, the state Senate gave final passage, and sent to the Governor for her signature, SB 1178, which significantly expands Arizona's Religious Freedom Restoration Act. The bill allows a person whose religious exercise "is likely to be burdened" to sue because of the impending violation, without waiting for the infringement to actually occur.  The bill also allows RFRA to be asserted whenever state action burdens religion, even if the state is not a party to the litigation. The Center for Arizona Policy has additional background information on the bill. AP reports on the Senate's action on SB 1178, as well as on two other bills that are nearing final passage-- HB 2446 (bill status and text) that expands the property tax exemption to cover certain vacant land held by churches for expansion, and HB 2645 (bill status and text) that exempts church pre-schools from the requirements of unemployment compensation tax.

British Court Orders Mosque To Vacate Site and Remove Buildings

Today's Newham Recorder reports on the series of events that has led a High Court judge in Britain to order the Abbey Mills Mosque in the London borough of Newham to stop using a former chemical works site as a place of worship, and to remove all buildings used for worship at the site, dig up an existing parking lot and remove all debris. The Anjuman-E-Islahul-Mislimeen Trust bought the site in 1996, and since then it has gone through a process of unauthorized development. The site is currently used by 3,000 worshipers.  Previously an enforcement order gave the Trust two years to bring the site into conformity with the Newham Borough Council's planning policy.  In response, the Trust asked the Council for permission to build a larger permanent mosque with capacity of 9,000. Council refused that request, and the refusal is now on appeal.  In the meantime, the court, ruling that the Trust had failed to meet its obligations, has issued the injunction to vacate the site.

Vatican Financial Authority Issues First Annual Report

The Vatican Financial Intelligence Authority Authority (Autorità di Informazione Finanziara [AIF]) today issued its Annual Report for 2012-- its first full year of operations. Reuters pointed out important aspects of today's announcements:

The head of the Vatican's Financial Intelligence Authority (FIA), presenting its first annual report, also said it would soon have stronger supervisory powers over the Vatican's scandal-plagued bank, the Institute for Works of Religion (IOR), dubbed the world's most secretive bank by Forbes magazine.

The Vatican is trying to meet international standards to combat the financing of terrorism, money laundering and tax evasion, but the European anti-money laundering committee, Moneyval, said in July that the IOR still had some way to go. The FIA is due to report back in December.

During 2012, AIF received 6 suspicious activities reports, and sought additional information on 3 of them. Two of the cases were referred to the Promoter of Justice, the Vatican's prosecutor. The Annual Report says: "Given the nature and small size of the economic and financial system of the Vatican City State, and the presence of a public regime that does not allow the presence of private operators, data show an effective system for reporting suspicious activities by the subjects obliged to do so." (See prior related posting.)

Court Says Mother's Objections To Immunizations Were Not Religiously Motivated

In Check v. New York City Department of Education, 2013 U.S. Dist. LEXIS 71124 (ED NY, May 20, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 71223, March 22, 2013) and refused to issue a preliminary injunction to require admission of plaintiff's 5-year old daughter to school without required immunizations.  The court rejected plaintiff's claim that she is entitled to a religious exemption under the New York statute (Pub. Health L. Sec. 2164(9)), and instead concluded that the mother's "mistrust of vaccinations is driven by health reasons and not religious conviction." The court said in part:

To be sure, Plaintiff often refers to God and religion in describing her aversion to immunizations.... Indeed, this court has no doubt that Plaintiff is a deeply religious woman whose religion plays an important, and even central, role in her life. However, not every belief held by a religious person is a religious belief.... Plaintiff's desire to protect her child from what she believes will cause her harm is undeniable, but it does not justify a religious exemption.....

The Staten Island Advance reports on the decision.

5th Circuit Rejects Habeas Petition Challenging Law Making Sex Non-Consensual With Clergy Spiritual Adviser

In Smith v. Thaler, (5th Cir., May 21, 2013), the U.S. 5th Circuit Court of Appeals denied a habeas corpus petition filed by a non-ordained pastor who had been convicted of sexual assault under a Texas statute that makes sexual relations non-consensual when the actor is a clergyman who causes the other person to participate by exploiting the other person's emotional dependency on the clergyman as a spiritual adviser. The court held it was reasonable for state courts to conclude that the statute does not implicate protected sexual conduct and that the statute is not unconstitutionally vague in requiring a determination that someone acted as a clergyman who knowingly exploited the victim’s emotional dependency. The court also concluded that it was reasonable for state courts to reject the claim that the statute violates the Establishment Clause by fostering excessive entanglement.

4th Circuit Hears Oral Arguments Second Time In Liberty University's Affordable Care Act Challenge

Last Friday, in the second time the case is before the court, the U.S. 4th Circuit Court of Appeals heard oral arguments in Liberty University, Inc. v. Lew.  The case is now a religious freedom challenge to the contraceptive coverage mandate, as well as a broader challenge to the Affordable Care Act. An audio recording of the oral arguments is now available on the 4th Circuit's website. Politico reports on the oral arguments. Originally the case was filed before the contraceptive coverage mandate was promulgated.  The suit then claimed that the ACA more broadly permits federal funding of abortions and that it violates the Establishment Clause and equal protection clause because its narrow religious exemptions favor certain religious adherents. The 4th Circuit dismissed the case, holding that the Anti-Injunction Act barred the lawsuit, and the Supreme Court denied certiorari. Plaintiffs, however asked for a rehearing on the decision to deny review after the Supreme Court  in National Federation of Independent Business v. Sebelius held that the Anti-Injunction Act does not bar a challenge to the ACA. The Supreme Court granted the rehearing, vacated it prior denial of certiorari and remanded the case to the 4th Circuit for further consideration in light of the National Federation of Business case. (See prior posting.)

State Department's 2012 International Religious Freedom Report Released; New Envoy To Monitor Anti-Semitism Announced

Yesterday, after comments by Secretary of Statse John Kerry, Suzan Johnson Cook, U.S. Ambassador-at-Large for International Religious Freedom, released the U.S. State Department's 2012 International Religious Freedom Report. The Report assesses the situation county-by-country around the world. The Report's Executive Summary outlines "some common themes regarding the status of religious freedom around the world":

Laws and policies that impede the freedom of individuals to choose a faith, practice a faith, change their religion, tell others about their religious beliefs and practices, or reject religion altogether remain pervasive.....

The use of blasphemy and apostasy laws continued to be a significant problem, as was the continued proliferation of such laws around the world. Such laws often violate freedoms of religion and expression and often are applied in a discriminatory manner....

This report also documents a continued global increase in anti-Semitism. Holocaust denial and glorification remained troubling themes, and opposition to Israeli policy at times was used to promote or justify blatant anti-Semitism....

In addition to anti-Semitism, intolerance by members of society towards those of other faiths besides Judaism was a growing problem, and all too often evolved into violence. While Christians were a leading target of societal discrimination, abuse, and violence in some parts of the world, members of other religions, particularly Muslims, suffered as well. Societal groups targeted members of minority branches of Islam and smaller faith groups, often those considered by the majority to be heretical or “foreign.”...

In many parts of the world... [g]overnments exacerbated religious tensions... fostering a climate of impunity, and failing to ensure the rule of law. In several instances of communal attacks on members of religious minorities and their property, police reportedly arrested the victims of such attacks....

In connection with release of the Report, Secretary of State Kerry also announced that Ira Forman will serve as the Special Envoy to Monitor and Combat Anti-Semitism.

Alaska's Compelling Interest In Limiting Yupik Eskimos' Salmon Fishing Trumps Free Exercise Claim

In an Alaska state trial court yesterday, acting Alaska District Court Judge Bruce G. Ward ruled in a 7-page opinion that Yupik Eskimos may not assert free exercise defenses to citations against them for illegally fishing for King Salmon.  The judge held that while subsistence fishing by the Alaska Natives may well be the practice of their religion, the state has a compelling interest in placing limitations on the taking of Chinook salmon. According to yesterday's Alaska Dispatch, the court-- distinguishing a 1979 Alaska Supreme Court decision-- held:

based on the testimony of the fisheries biologists present during the evidentiary hearing, that the natural consequences of allowing the unfettered taking of Chinook salmon under the religious free exercise exception through subsistence harvest urged by the defendants would result in ... the decimation of the species by over fishing.

In a colloquy with defense counsel, the Judge Ward said: "This court understands there will be an appeal, and frankly I think there should be."  Some 22 defendants are standing trial on charges growing out of a "fish-in" protest last year. (Background.)

UPDATE: Alaska Native News reports: "Many of the fishermen were found guilty on Monday when proceedings re-started. They were given $500 fines with $250 suspended and one -year probation."

Science Education Group Issues "Scorecard" On 2013 State Anti-Evolution Proposals

The National Center for Science Education yesterday issued their "scorecard" on state legislative proposals this year that are anti-evolution or anti-climate change. It reviews activity on "anti-science" bills in 9 states-- a total of 10 bills and one resolution.

This Year's Dearborn Arab International Festival Is Canceled

For the past 18 years, the Arab American Chamber of Commerce has sponsored an Arab International Festival in Dearborn, Michigan.  In recent years the festival has sparked confrontations between Christian proselytizers and Muslim attendees, some of which have led to extensive litigation.  This year the Festival was to be moved to a local park that police would be able to better control-- particularly in light of anti-Muslim proselytizers that were planning to attend. (See prior posting.) Yesterday the Arab American Chamber of Commerce announced that it was canceling this year's Festival in order to give organizers a year to ensure a quality event at the new location. Macomb County Advisor & Source reported on the Chamber's decision.

Supreme Court Grants Certiorari In City Council Invocation Case

The U.S. Supreme Court today agreed to weigh in on the extensively litigated issue of opening city council meetings with prayer.  It granted certiorari in Town of Greece, NY v. Galloway, (Docket No. 12-696, cert. granted 5/20/2013). (Order List). In the case, the 2nd Circuit created an extremely fact-dependent test for determining the constitutionality of opening meetings of legislative bodies (here the town board) with prayer. It concluded that in this case, "an objective, reasonable person would believe that the town’s prayer practice had the effect of affiliating the town with Christianity." (See prior posting.) Scotus Blog's case page has links to all the certiorari stage briefs. The town's petition for certiorari framed the question presented as: "Whether the court of appeals erred in holding that a legislative prayer practice violates the Establishment Clause notwithstanding the absence of discrimination in the selection of prayer-givers or forbidden exploitation of the prayer opportunity."

Britain Releases 2011 Census Data On Religious Affiliation and Characteristics of Population By Religion

Last week, Britain's Office for National Statistics released new data from the 2011 census on religious affiliation for residents of England and Wales. The data on numbers and median age shows 33.2 million Christians, 14 million with no religion, 2.7 million Muslims, 817 thousand Hindus, 423 thousand Sikhs, 263 thousand Jews, and 248 thousand Buddhists. Other tables show religion by ethnicity, religion by country of birth, and religion by economic activity. The Dalles Chronicle has further analysis of the data.

Recent Articles of Interest

From SSRN:

• Anissa Helie and Marie Ashe, Multiculturalist Liberalism and Harms to Women: Looking Through the Issue of 'The Veil', (19 U.C. Davis Journal of International Law & Policy 1 (2012), pp. 1-65).
• David H. Schraub, Our Divine Constitution, (44 Loyola University Chicago Law Journal 1201 (2013)).
• Peter G. Danchin, The Tangled Law and Politics of Religious Freedom, (Santa Clara Journal of International Law, Vol. 10, pp. 73-91, 2012).
• George C. Christie, Judicial Decision Making in a World of Natural Law and Natural Rights, (Villanova Law Review, Vol. 57, No. 5, 2012). 
• Engy Abdelkader, 'Savagery' in the Subways: Anti-Muslim Ads, the First Amendment, and the Efficacy of Counterspeech, (Asian American Law Journal at Berkeley Law (2013, Forthcoming)).
• Dawubder S. Sidhu, Lessons on Terrorism and 'Mistaken Identity' from Oak Creek, with a Coda on the Boston Marathon Bombings, (113 Columbia Law Review Sidebar 76 (2013)). 
• Leonid Sykiainen, The Arab Spring and Islamic Legal Thought, (Higher School of Economics Research Paper No. WP BRP 17/LAW/2013).

From SmartCILP:

• Jonathan C. Augustine, The Faith That Divides Us: Lines of (In)division Between Religion and Politics, (Reviewing Mike Slaughter, et al., Hijacked: Responding to the Partisan Church Divide), 22 Southern California Review of Law & Social Justice 37-52 (2012).
• Anthony Michael Kreis and Robin Fretwell Wilson, The Overlooked Benefit of Minimalism: Perry v. Brown and the Future of Marriage Equality, 37 N.Y.U. Review of Law & Social Change 35-47 (2013).
• Brian M. McCall, Can a Pluralistic Commonwealth Endure? (Reviewing Thaddeus J. Kozinski, The Political Problem of Religious Pluralism and Why Philosophers Can't Solve It), 11 Georgetown Journal of Law & Public Policy 45-61 (2013). 

Recent Prisoner Free Exercise Cases

In Rich v. Secretary, Florida Department of Corrections, (11 Cir., May 14, 2013), the 11th Circuit sent back for trial a Jewish prisoner's challenge under RLUIPA to Florida's refusal to provide him with kosher meals.

In Watkins v. Rogers, (10th Cir., May 17, 2013), the 10th Circuit dismissed a damage claim by a former federal prisoner who alleged that when he was moved to a federal transfer center a correctional officer with whom he had a history of disputes refused to serve him a common fare or vegetarian diet at one meal.

In Spivey v. Love, 2013 U.S. Dist. LEXIS 67530 (SD IL, May 10, 2013), an Illinois federal district court adopted in part a magistrate's recommendation (2013 U.S. Dist. LEXIS 68478, March 21, 2013) and permitted an inmate  who complained that he had been unable to change his records to correctly reflect his religion as Reform Judaism to move forward against some of the defendants he named.

In Talley v. Womack, 2013 U.S. Dist. LEXIS 67442 (WD KY, May 10, 2013), a Kentucky federal district court dismissed a Muslim inmate's complaint that corrections officers on one occasion told his friend to leave Muslim religious services.

In Colletti v. Arpaio, 2013 U.S. Dist. LEXIS 67686 (D AZ, May 10, 2013), an Arizona federal district court dismissed an inmate's complaint that he was not permitted to keep his religious medallion.

In Porter v. Wegman, 2013 U.S. Dist. LEXIS 67959 (ED CA, May 9, 2013), a California federal magistrate judge permitted an inmate who is a member of the House of Yahweh religion to move ahead with his free exercise, RLUPA and equal protection claims growing out of alleged  denials of reasonable accommodations for observing HOY Passover and of access to the Jewish Kosher Diet Program. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 100835, July 18, 2013.

In Montgomery v. Hall, 2013 U.S. Dist. LEXIS 69213 (SD NY, May 15, 2013), a New York federal magistrate judge held that insofar a a Muslim inmate was asserting a free exercise complaint about being strip searched, there was no showing of a burden on his religious beliefs.

In Munoz v. Tilton, 2013 U.S. Dist. LEXIS 69330 (ND CA, May 15, 2013), a California federal district court dismissed as moot a complaint by an inmate that at his former prison facility he was not allowed to have Christian CDs that had been mailed to him because they did not come from an approved vendor.

In Guillory v. Ellis, 2013 U.S. Dist. LEXIS 68752 (ND NY, May 14, 2013), a New York federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 69183, April 3, 2013) and permitted an inmate to move ahead with his free exercise and RLUIPA complaints that on two occasions he was not permitted to attend religious services for invalid reasons, including retaliation for filing a grievance. On another occasion plaintiff's meeting with rabbis was cut short. Plaintiff's equal protection claim was dismissed without prejudice.

In Lisasuain v. Hillsborough County Department of Corrections, 2013 U.S. Dist. LEXIS 70403, (D NH, May 17 2013), a New Hampshire federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70425, May 6, 2013), and dismissed a complaint by an inmate that while he was on suicide watch he was allowed access to his Bible and rosary beads only one hour per day.

In  Weathers v. Rock, 2013 U.S. Dist. LEXIS 69828 (ND NY, May 16, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 70058, April 23, 2013), and refused to dismiss a Jewish inmate's claim that his rights were violated when authorities refused to provide him with seder meals at Passover in his cell in the special housing unit, even if he was not allowed to attend seders with other inmates.

Appeals Court Dismisses Suit Alleging Defamation In Church Annulment Proceedings

A Kansas appellate court, in a 2-1 decision, affirmed the dismissal of a suit brought by plaintiff against his former wife alleging that she made defamatory statements to a Catholic Archdiocesan Tribunal in seeking an annulment of their marriage.  The annulment petition claimed plaintiff had been diagnosed as bipolar.  Purdum v. Purdum, (KA Ct. App., May 17, 2013), produced three separate opinions.  Judge Green, while rejecting the trial court's "absolute privilege" rationale, dismissed on Establishment Clause grounds holding that moving forward with the case would excessively entangle the court with the Archdiocese's annulment proceedings.

Judge Bruns concurred, holding that the church autonomy doctrine-- also known as the ecclesiastical abstention doctrine-- applies and requires dismissal of the case. He said in part:

In order for authorities within the Roman Catholic Church to perform their duties in an ecclesiastical annulment proceeding, I believe it is imperative that the parties be free to allege their version of the facts with candor and without fear of being sued in secular courts.

Judge Atcheson dissented, arguing that the defenses put forward are not jurisdictional, and that the case has been dismissed at too early a stage.  He also argued that this case does not threaten undue entanglement:

Purdum alleges that the petition for annulment contains a factual representation about him that is false and defamatory. The representation has nothing to do with his religious beliefs or the Catholic Church's ecclesiastical doctrine or views.... A court or a jury would not be drawn into a theological debate or an evaluation of annulments or other Catholic ritual in assessing the statement's falsity or its defamatory nature. In other words, the forum of publication—as part of a request to the Archdiocese for an annulment—is immaterial to the content of the statement that Purdum says makes it libelous.