Religion Clause

Monday, June 17, 2013

Egyptian Courts Continue To Convict for Insulting Religion

Courts in Egypt apparently continue to vigorously enforce Egyptian laws barring contempt of religion, reflecting Article 44 of Egypt's Constitution which provides: "Insult or abuse of all religious messengers and prophets shall be prohibited."

On June 11 in Luxor, the Misdemeanor Court fined a Coptic Christian elementary school teacher EGP 100,000 ($14,000 US) for insulting Islam. According to Egypt Daily News, parents of three students complained that 24-year old Demiana Abdel Nour told students that the late Pope Shenouda III performed more miracles than the Prophet Muhammad, and that the teacher also placed her hand on her stomach to convey nausea when mentioning Muhammad. A number of students though said that no such attacks on religion had taken place.

Meanwhile, on June 16, a Misdemeanor Court in Nasr City convicted conservative Islamic preacher and TV channel owner Abu Islam (Ahmed Abdallah) of tearing up a Christian Bible in a demonstration outside the U.S. embassy last September and for saying on a TV program that 90% of the women protesters in Tahrir Square were Christians who came there "half naked" in order to get sexually harassed. According to Egypt Daily News, he was sentenced to 5 years for tearing the Bible, 3 years for insulting religion, and an additional 3 years for disturbing public peace. He was also fined EGP 3,000 ($425 US). Abu Islam's son was sentenced to 8 years in prison and a fine of EGP 2,000 for participating in the demonstration. The sentences will be suspended pending appeal.

Sunday, June 16, 2013

New York Court Lifts Kirpan Ban After Sikh Groups Resolve Dispute

Sikh Wire reports that on Friday, a New York state trial court judge lifted the ban he had imposed in May 2010 on the carrying ban of the kirpan, the ceremonial dagger, inside the Gurdwara in Rochester (NY). The ban was originally imposed because of a dispute between two Sikh groups. Later the ban was liberalized so that clergy could carry kirpans. According to Sikh Wire:

After protests by Sikhs in the US and elsewhere against the ban on their religious right to wear the kirpan, the Akal Takht – the supreme spiritual institution of the Sikhs in Amritsar – appointed a seven-member committee in the US to get the kirpan ban removed, and help the two warring parties at the gurdwara resolve differences.

Recent Prisoner Free Exercise Cases

In Mansfield v. Missouri Department of Corrections, (8th Cir., June 10, 2013), the 8th Circuit held that prison official's compelling interest in security justified their denial of group worship services for members of the Christian Separatist Church Society.

In Small v. Wetzel, (3d Cir., June 11, 2013), the 3rd Circuit upheld a district court's dismissal of Muslim inmates' complaints about a strip search with female prison staff present and one inmate's complaint about the requirement to sign Guidelines in order to participate in the Ramadan fasting program. However the court did permit plaintiff to proceed with an equal protection claim for nominal damages based on the prison not requiring Jewish prisoners to sign similar Guidelines to participate in their holy day observances.

In Laurensau v. Romarowics, (3rd Cir., June 13, 2013), the 3rd Circuit upheld removal of an inmate from the kosher diet program because he failed to show a sincerely held religious belief.

In Bucano v. Sibum, 2013 U.S. Dist. LEXIS 79514 (MD PA, June 6, 2013), a Pennsylvania federal district court agreed with a federal magistrate judge's recommendation (2012 U.S. Dist. LEXIS 188330, Dec. 27, 2012) to dismiss without prejudice the claim by two inmates that being forced to eatnon-Kosher food, being prohibited from being in the same cell, and being called "fake Jews" by a corrections officer violated their free exercise rights.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 81198 (SD GA, June 10, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 81416, May 9, 2013) and dismissed a complaint by a Hindu inmate who sought a vegan diet that he is unable to participate in the alternative entree meal plan.

In Chesser v. Rivas, 2013 U.S. Dist. LEXIS 82223 (SD IL, June 11, 2013), an Illinois federal district court allowed a Muslim inmate at a special federal high security unit to move ahead with religious freedom and other challenges to the ban on Arabic, the ban on shortened pants, imposing participation in receiving special food on non-Muslim holidays, denial of Halal meals for Islamic holidays, failure to provide an imam, and failure to provide food for breaking of religious fasts.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 82347 (D ME, June 12, 2013), a Maine federal district court dismissed for failure to exhaust administrative remedies a Protestant inmate's complaint that inmates in protective custody may not attend group religious services outside the unit. as well as complaints about other limitations on practicing his religion.

In United States v. Bowman, 2013 U.S. Dist. LEXIS 82652 (WD NC, June 12, 2013), a North Carolina federal district court granted an inmate's motion that both the court and the Bureau of Prisons recognize his newly adopted Islamic name, but only along with the name under which he was committed.

In Allen v. Virga, 2013 U.S. Dist. LEXIS 82825 (ED CA, June 11, 2013) a California federal magistrate judge permitted an inmate who is an adherent of the House of Yahweh Yahdaim who sought kosher meals which he had been denied because he is not Jewish to proceed on his claim for damages. Plaintiff was also granted leave to file an amended complaint setting out a RLUIPA claim.

In United States v. Zielinski, 2013 U.S. Dist. LEXIS 81510 (ND NY, June 11, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 82014, May 15, 2013) and revoked defendant's supervised release program because of his failure to participate in parts of it. The court concluded that the sex offender program did not burden a religious exercise, finding that "Objectivism" is not a religion.

In Maxwell v. Clarke, 2013 U.S. Dist. LEXIS 83461 (WD VA, June 13, 2013), a Virginia federal district court dismissed claims by a Rastafarian inmate that his rights under the 1st and 14th Amendments and RLUIPA were infringed when he was confined to segregation without permission to attend religious services for refusing to cut his hair as required by the prison's grooming policy.

In Quinn v. Knab, 2013 U.S. Dist. LEXIS 82542 (SD OH, June 12, 2013), an Ohio federal district court dismissed an inmate's religious accommodation claim, finding that the claim for injunctive relief is moot since he was released from prison. It also held he cannot recover damages under RLUIPA from state employees in their personal capacities.

Friday, June 14, 2013

Judge Jones Misconduct Complaint Transferred To DC Circuit

As previously reported, on June 4 a misconduct complaint was filed against Judge Edith Jones, based in part on comments she made regarding a religious justification for capital punishment. Now, as reported yesterday by the New Orleans Advance, it appears that the complaint has been transferred from the Judicial Council of the 5th Circuit to the Judicial Council of the D.C. Circuit. On June 12, a Notice was posted on the U.S. 5th circuit Court of Appeals website indicating that a judicial conduct proceeding had been transferred. The Notice linked to a June 12 letter from U.S. Chief Justice John Roberts authorizing the transfer, and indicating that he had received a request on June 7 from the 5th Circuit for the transfer. The Judicial Conference Rules (full text) set out the basis for transfers.

UPDATE: On Thursday, Alliance for Justice submitted a letter (full text) in support of the misconduct complaint to the chief judge of the D.C. Circuit. It says that there is a long pattern of prejudicial statements and actions by Judge Jones, including her repeatedly speaking of the primacy of religion above law.

Jewish Prisoner Wants Permission To Be Circumcised

Prison authorities in Florida are facing an unusual religious accommodation question. WEAR News yesterday reported that inmate Pablo Diaz, whose mother was Jewish and who has been active in the Jewish prison ministry at Blackwater River Correctional Facility, is requesting to be allowed to be circumcised. He directed his request to the state corrections department after similar previous request was turned down by the warden. The 37-year old Diaz is serving a life sentence for kidnapping, aggravated battery with a deadly weapon and manslaughter. The non-profit group Brit Yosef Yitzchak has offered to perform the religious circumcision free of charge.

Suit Claims Discriminatory Treatment In Censorship of Atheist Materials Handed Out In Schools

As previously reported, last month the Central Florida Freethought Community made materials on Atheism available to students in eleven Orange County, Florida high schools. This was permitted in order to allow them the same privilege as was given to World Changers of Florida which handed out Bibles in the schools in February. Now, however, the free thought group's parent body (FFRF) has filed a lawsuit claiming that their literature faced censorship while World Changers did not. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Orange County School Board, (MD FL, filed 6/13/2013), charges that school officials allowed FFRF to distribute only 11 of 20 of the books and pamphlets it submitted. The others were prohibited as age inappropriate or because they would create substantial disruption. In particular one publication was disallowed because its claim that Jesus was not crucified or resurrected made it age inappropriate, even though the Bibles distributed expresses an opposite viewpoint on the same issue. The suit claims unconstitutional viewpoint discrimination, prior restraint and violation of the equal protection clause. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

House Hearing Is Critical of US Implementation of International Religious Freedom Act

Yesterday, the Subcommittee on National Security of the U.S. House Oversight & Government Reform Committee held a hearing titled "Examining the Government’s Record on Implementing the International Religious Freedom Act." A video of the hearing and transcripts of all the witnesses' prepared statements are available on the Committee's website. The hearing began with a kerfuffle over the State Department's refusal to make Ambassador-at-Large for International Religious Freedom Suzan Johnson Cook available to testify because of the Committee's insistence that all witnesses testify on a single panel. State Department policy does not permit executive branch officials to testify on panels with non-government witnesses. Four witnesses did testify-- USCIRF Chair Katrina Lantos Swett; director of Georgetown's Religious Freedom Project, Thomas F. Farr; Chris Seiple, President of Institute for Global Engagement; and Amjad Mahmood Khan, National Director of Public Affairs of the Ahmadiyya Muslim Community USA.

In her testimony, USCIRF Chair Swett said in part:

Unfortunately, neither Republican nor Democratic Administrations have fully utilized IRFA as the key foreign policy tool it was intended to be. Neither have designated CPCs in a timely manner nor issued specific Presidential actions based on these designations.

Mr. Farr in his testimony also criticized U.S. action:

Notwithstanding the hard, creative work of the State Department’s Office of International Religious Freedom, it would be difficult to name a single country in the world over the past fifteen years where American religious freedom policy has helped to reduce religious persecution or to increase religious freedom in any substantial or sustained way.

Thursday, June 13, 2013

French Appeals Court Upholds Order Requiring Twitter To Disclose Names of Anti-Semitic Tweeters

According to CNet News and JTA, in France yesterday the Paris Court of Appeal upheld a lower court order requiring Twitter to turn over to the Union of Jewish French Students (UEJF) and four human rights groups that brought suit the names of individuals who last October posted Tweets using anti-Semitic hashtags. The hashtags were used in a kind of competition of anti-Semitic jokes. Twitter, which has already removed the Tweets, argued that as an American company, it should be protected by the First Amendment. The full text of Wednesday's opinion in Association L'Union des Etudiants Juifs de France (UEJF) v. Societe Twitter Inc., (Paris Ct. App., June 12, 2013) is available online in French.

Southern Baptists Adopt Resolution On Boy Scouts; Public Policy Spokesman Talks With Reporters

During its annual meeting yesterday, the Southern Baptist Convention adopted a lengthy resolution expressing the denomination's "continued opposition to and disappointment in the decision of the Boy Scouts of America to change its membership policy" to allow gays to become members of the Scouts. (See prior posting.) The resolution expressed concern that this may be the first step toward approving homosexual scout leaders. The resolution went on to:

affirm the right of all families and churches prayerfully to assess their continued relationship with the BSA, expressing our support for those churches and families that as a matter of conscience can no longer be part of the Scouting family....

we encourage churches and families that remain in the Boy Scouts to seek to impact as many boys as possible with the life-changing Gospel of Jesus Christ, to work toward the reversal of this new membership policy....

we declare our love in Christ for all young people regardless of their perceived sexual orientation, praying that God will bring all youth into a saving knowledge of our Lord Jesus Christ.

The resolution encourages churches that sever ties with the Scouts to expand their Royal Ambassador ministry program for boys. Baptist Press has a report along with the full text of the resolution.

At the meeting, Russell Moore, newly elected president of the Convention's Ethics & Religious Liberty Commission held his first press conference. (BP report.) He told reporters that religious liberty has become the most significant issue in American culture. Focusing on engagement with the broader society, he said that "expressions of outrage, boycotts consistently against everyone who doesn't conform to our sense of values [are] not an effective way to engage culture." On politics, he said: "[T]he church of Jesus Christ is not owned by any political party and shouldn't be co-opted by any political party."

Judge Refuses To Dismiss Faith Healing Parents Murder Case

According to Reuters, a Philadelphia Municipal Court judge yesterday ruled that the murder and involuntary manslaughter case against Herbert and Catherine Schaible should proceed to trial. The couple, charged in the faith-healing death of their 7-month old child, had sought to have the charges dismissed on the ground that they did not know their child was sick enough to die, and thus there was no gross negligence or malice. The couple had previously been convicted of involuntary manslaughter in the faith healing death of another of their children. (See prior related posting.)

Plaintiffs Lack Standing To Challenge Arizona Day of Prayer Proclamations

In Freedom From Religion Foundation, Inc. v. Brewer, (AZ App., June 11, 2013), an Arizona state Court of Appeals held that a group of Maricopa County residents and a organization promoting church-state separation lack standing to to challenge Governor Janice Brewer's Day of Prayer proclamations. Plaintiffs alleged that the proclamations violated Article 2, Section 12 (Religion Clause) and Article 20, Par. 1 (perfect toleration of religion clause) of the Arizona Constitution. The court, finding no distinct harm to plaintiffs, said:

Appellants have offered no explanation why their feeling of offense is any greater than that of a large segment of the general public nor how such purported psychological harm amounted to a discrete and palpable injury. Accordingly, we conclude they lack standing to bring their complaint.

The court also found that plaintiffs had not alleged taxpayer standing, and that the standing requirements should not be waived. AP reports on the decision. (See prior related posting.)

Wednesday, June 12, 2013

10th Circuit: Native American Legend On License Plate Supports Pastor's Compelled Speech Claim

In Cressman v. Thompson, (10th Cir., June 11, 2013), the U.S. 10th Circuit Court of Appeals held that plaintiff states a plausible First Amendment "compelled speech" claim in objecting to what he views as a religious depiction on Oklahoma's 2009 license plates. The plates include a depiction of a sculpture titled "Sacred Rain Arrow" showing a Native American shooting an arrow toward the sky. The sculpture is based on a Native American legend in which a medicine man blesses a warrior's bow and arrows during a time of drought. Plaintiff Kieth Cressman, a United Methodist pastor, says that the belief in sacred objects, multiple gods and the ability of humans to use sacred objects to convince gods to alter nature represented by the legend all contradict his Christian religious beliefs. He does not want to display those beliefs on his automobile. The court refused to dismiss the claim, saying that further factual development is necessary to determine whether others would perceive the license plate as conveying the message that Cressman alleges it does. The Oklahoman reports on the decision.

UPDATE: On June 12, the 10th Circuit announced that a clerical error had led to the June 11 decision failing to include a dissent by Judge Kelly. The court reissued the decision, including the dissent.

Israeli Knesset Passes Law Requiring 4 Women On Rabbinical Judges Selection Committee

In Israel, government-appointed judges of rabbinical courts have jurisdiction over issues of Jewish marriage and divorce in the country. The rabbinical court judges are chosen by the Selection Committee for Rabbinical Judges. The Jerusalem Post and New York Jewish Week report that Israel's Knesset yesterday, over strong objections by haredi (ultra-Orthodox) parties, passed a law increasing the size of the selection committee from 10 to 11, and requiring that 4 of 11 places on the committee be reserved for women. Women's advocacy groups hope this will lead to the appointment of judges who are more attuned to women's concerns, particularly in divorce cases. Under past law, the selection committee was made up of Israel's two chief rabbis, two judges from the Rabbinic Court of Appeals, two government ministers, and two lawyers representing the Israel Bar Association. Under the new law, which will take effect only after the next Knesset elections, one of the representatives from the government, one from the Knesset and one from the bar association will be women. Also the Minister of Justice will appoint a fourth woman who must be a rabbinical courts advocate.

South Carolina Episcopal Diocese Property Dispute Sent Back To State Court

In Protestant Episcopal Church In The Diocese Of South Carolina v. The Episcopal Church, (D SC, June 10, 2013), a South Carolina federal district court remanded to the state court a lawsuit over church property that had been removed to federal court. In the case, the break-away Episcopal Diocese of South Carolina originally filed suit in state court against The Episcopal Church to establish the break-away Diocese's right to the real and personal property of the Diocese and its parishes. (See prior posting.) The Episcopal Church through its state affiliate, removed the case to federal court claiming that the case raises federal questions under the 1st Amendment and the Lanham Act. The court, however, emphasized that plaintiffs' complaint raised only claims based on South Carolina statutes. For removal, a federal issue must be an essential element in plaintiff's case, raised on the face of its complaint. Any 1st Amendment issue in this case is essentially a defense. Anglican Curmudgeon and Episcopal Church in South Carolina discuss the decision from opposite perspectives.

Muslims May Proceed With Equal Protection Challenge To Discriminatory Religious Interrogation At US-Canadian Border

In Cherri v. Mueller, (ED MI, June 11, 2013), a Michigan federal district court permitted four Muslim-Americans to proceed with their suit against federal officials. The suit charges that when Muslims re-enter the United States from Canada, they are extensively questioned about Islamic religious philosophy and views, practices, and locations where they worship. According to the court:

This case presents an issue of first impression.... In short, the question before the Court is whether the Government has unfettered discretion to question at the border a specific class of individuals about their religious practices and beliefs after being profiled and detained solely because of those religious practices and beliefs.

After finding that plaintiffs have standing to challenge the government practice, federal district judge Avern Cohn dismissed their free exercise, RFRA, Establishment Clause and retaliation claims. However he found that plaintiffs had adequately stated a claim under the equal protection component of the 5th Amendment:

Plaintiffs have adequately pled that Defendants have a policy, custom and practice of questioning only Muslim American’s at the border about their religious practices and beliefs. Moreover, Plaintiffs have sufficiently alleged that such policy, practice and custom targets a suspect class and has no rational basis. At this stage in the case, Plaintiffs’allegations are sufficient. The Fifth Amendment claim, therefore, will not be dismissed.

The Detroit Free Press reports on the decision. (See prior related posting.)

Russian Duma Passes Laws Banning Insulting of Religious Feelings and Disseminating Homosexual Propaganda To Minors

Yesterday in Russia, the Duma-- the lower house of Russia's Parliament-- passed two bill of interest. The first is a ban on publicly insulting religious feelings. As reported by RT, the Duma passed amendments to Article 148 of the Criminal Code (full text of bill in Russian) that would punish offenses by up to three years in prison and a fine of 500,000 rubles ($15,600 US). The bill also imposes up to one year in prison and disqualification for certain public offices for two years for anyone convicted of obstructing the activities of religious organizations. Premeditated and public desecration of religious objects or books will be punishable by fines of up to 200,000 rubles ($6,200 US). The bill is strongly backed by the Russian Orthodox Church, particularly after the widely publicized punk-band Pussy Riot demonstration in Moscow's main cathedral last February. (See prior posting.) Here is the legislative history page from the Duma (in Russian). To become law, the bill must still be approved by the Federation Council, the Upper House of the Russian parliament, and signed by President Putin.

The Duma yesterday also passed by an overwhelming vote a bill that would outlaw homosexual propaganda aimed at individuals under 18 years of age. (Legislative history page in Russian.) The bill primarily embodies amendments to the Law On Protection of Children From Information Harmful To Their Health and Development (full text of bill in Russian). According tp Russia Beyond the Headlines the bill describes its purpose as combating "the dissemination of information that aims to induce minors to develop non-traditional sexual attitudes, to see non-traditional sexual relationships as attractive, to develop the distorted notion that traditional and non-traditional sexual relationships possess the same value, or the dissemination of information on non-traditional sexual relationships that arouses interest in such relationships."

Fines for violations of the bill's prohibitions vary depending on whether the violator is a private individual, an official, or an entity. Fines are higher if the prohibited information is disseminated through the media or on the Internet. Foreign nationals who violate the law also face arrest of up to 15 days and expulsion from the country. This bill must also still be approved by the Federation Council and signed by President Putin before it finally becomes law.

Tuesday, June 11, 2013

No Religious Discrimination In Disciplining Employee For Preaching At Lesbian Co-Worker

In Hall v. Tift County Hospital Authority, 2013 U.S. Dist. LEXIS 80913 (MD GA, June 10, 2013), a Georgia federal district court dismissed religious discrimination claims brought by a Baptist nursing supervisor against a hospital that disciplined her for giving a lesbian nurse she sometimes supervised a pamphlet and sending her an e-mail emphasizing the sinfulness of homosexuality. The court rejected plaintiff's claim that the disciplinary action against her violated Title VII, the equal protection clause, and her 1st Amendment free speech and free exercise rights.

Pennsylvania House Honors Landmark SCOTUS Decision By Declaring Public School Religious Freedom Month

According to AP, the Pennsylvania state House of Representatives yesterday unanimously passed House Resolution 351 declaring June 2013 as "Public School Religious Freedom Month." June 17 is the 50th anniversary of the U.S. Supreme Court's landmark decision in School District of Abington Township, Pennsylvania v. Schempp, striking down Pennsylvania's opening of the public school day with Bible reading and recitation of the Lord's Prayer. The House Resolution praises the Supreme Court's vindication of the rights of conscience.

Misconduct Charges Against 5th Circuit Judge Include Her Religious Justifications For Capital Punishment

As reported by the Austin Chronicle and Courthouse News Service, six civil rights groups and seven individuals, most with special expertise in legal ethics, last week filed judicial misconduct charges against U.S. 5th Circuit Judge Edith Jones primarily over comments she made in a lecture titled "Federal Death Penalty Review." The talk was given at the University of Pennsylvania Law School on February 20. The Complaint (full text) alleges that Judge Jones' conduct was "prejudicial to the effective and expeditious administration of the business of the courts, undermines public confidence in the integrity and impartiality of the judiciary, and creates a strong appearance of impropriety."

The Complaint filed with the 5th Circuit pursuant to 28 U.S.C. § 351(a) focuses on a variety of Jones' remarks-- many uncomplimentary to racial and ethnic minorities and dismissive of defenses raised in capital cases. In addition, the Complaint alleges that Judge Jones, focusing on the Biblical origins of the death penalty, argued that:

The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution.