Gitmo Detainees Seek End To Force-Feeding, Saying It Will Violate Religious Freedom During Ramadan

Four Guantanamo Bay detainees-- all of whom have been cleared for release-- filed a motion on Sunday in their long-pending habeas corpus cases seeking to force the U.S. government to end force-feeding of detainees participating in a hunger strike. (Press Release from Reprieve.) The motion (full text) in Belbacha v. Obama, (D DC, filed 6/30/2013), in addition to broader arguments against force feeding, argues that with the month of Ramadan starting shortly, force-feeding during daylight hours will violate detainees' religious freedom in violation of the Geneva Convention and the Religious Freedom Restoration Act. Reprieve announced Monday that the court has ordered the government to respond to the motion for a preliminary injunction by July 3.

Pro-Life Student Group Sues Over Required Security Fees For Event

A pro-life student group at New York's University of Buffalo filed a federal lawsuit last week challenging the University's policy of requiring student groups sponsoring controversial events to pay for campus police to be  present for security.  The complaint (full text) in UB Students For Life v. Tripathi, (WD NY, filed 6/28/2013), claims that the group's free expression, due process and equal protection rights were infringed when University officials decided that an abortion debate the group was sponsoring might attract hecklers and so required the group to pay nearly $650 to cover the cost of required campus security.  The complaint alleges that

UB policy and practice grants administrators unbridled discretion to deem student organization events “controversial” based on the content or viewpoint of the speech or the actual or potential reactions of listeners.

ADF issued a press release giving additional information about the lawsuit.

Australian MP Faces Online Abuse For Swearing-In As Cabinet Member On Koran

Today's Sydney Morning Herald and the Brisbane Courier Mail report on the abusive reaction on Facebook and Twitter to the swearing in on the Koran of Labor Member of Parliament Ed Husic as Australia's first Muslim frontbencher.  Husic was appointed by Prime Minister Kevin Rudd as Parliamentary Secretary to the Prime Minister and Parliamentary Secretary for Broadband.  While Husic is a non-practicing Muslim, he said it was a straight forward decision to be sworn in on the Koran. Husic is the son of Bosnian Muslim immigrants. A number of members of Parliament decried the social media reaction and praised the multiculturalism symbolized by Husic's appointment.

Yeshiva University Chancellor Retires; Apologizes For Handling of Sex Abuse Reports In 1980's

Yesterday Rabbi Norman Lamm, Chancellor and formerly long-time President of Yeshiva University announced in a letter that he is stepping down from his position as Chancellor and head of the rabbinical school at Yeshiva. As reported by The Forward, 85-year old Lamm's retirement comes amid growing pressure over mishandling of reported sexual abuse at Yeshiva University High School in the 1970' and 1980's, during Lamm's University presidency. As reported last December by The Forward, the accused abusers-- the high school principal and a Talmud teacher-- were not reported to authorities.  The principal eventually took a position elsewhere and the teacher retired. Both of the men, who now live in Israel, deny the allegations against them. In his letter yesterday announcing his retirement, Lamm wrote at some length about his mishandling of the abuse reports:

At the time that inappropriate actions by individuals at Yeshiva were brought to my attention, I acted in a way that I thought was correct, but which now seems ill conceived. I understand better today than I did then that sometimes, when you think you are doing good, your actions do not measure up. You think you are helping, but you are not. You submit to momentary compassion in according individuals the benefit of the doubt by not fully recognizing what is before you, and in the process you lose the Promised Land.... 

True character requires of me the courage to admit that, despite my best intentions then, I now recognize that I was wrong. I am not perfect; none of us is perfect. Each of us has failed, in one way or another, in greater or lesser measure, to live by the highest standards and ideals of our tradition — ethically, morally, halakhically. We must never be so committed to justifying our past that we thereby threaten to destroy our future. It is not an easy task. On the contrary, it is one of the greatest trials of all, for it means sacrificing our very egos, our reputations, even our identities. But we can and must do it. I must do it, and having done so, contribute to the creation of a future that is safer for innocents, and more ethically and halakhically correct.

Milwaukee Archdiocese Releases Files On 42 Abusive Priests

AP reports that the Catholic Archdiocese of Milwaukee (WI) yesterday released thousands of pages of records relating to 42 of the 45 diocesan priests with substantiated allegations against them of sexual abuse of a minor.  The release was part of an agreement reached in the Archdiocese's Chapter 11 bankruptcy reorganization proceedings where abuse victims are suing the Archdiocese.  A Questions & Answers sheet posted by the Archdiocese yesterday summarizes the 6,000 pages of documents. All the documents and related information are available from the Archdiocese's website. They are also available, catalogued a bit differently, on the website of the law firm representing the victims. One of the released documents that has attracted attention is the deposition of Timothy Cardinal Dolan, president of the U.S. Conference of Catholic Bishops. The New York Times reports that one of the other documents released yesterday is a 2007 letter from Dolan, then the archbishop, requesting Vatican permission to move $57 million into a cemetery trust fund to shield the assets from clergy abuse victims.

Missouri Governor Vetoes Bill Protecting Federal Holiday Observance

Apparently in response to what some perceive as an attack on the celebration of Christmas, in May the Missouri General Assembly passed HB 278 (full text) which provides:

No state or local governmental entity, public building, public park, public school, or public setting or place shall ban or otherwise restrict the practice, mention, celebration, or discussion of any federal holiday.

Yesterday Missouri governor Jay Nixon vetoed the bill (Veto Message)(News Release), along with SB 265 (Veto Message) that would have prohibited implementation of restrictions that stem from the sustainable development recommendations in United Nations "Agenda 21." Nixon said:

These issues may drive ratings on cable television, but they should not be the basis of public policy in Missouri. While the problems these bills ostensibly aim to fight are only imaginary, the headaches they could create for local governments would be very real and costly.

He said that HB 278 would hamper the enforcement of fireworks bans around the 4th of July and would allow state and local employees to demand time off for federal holidays, creating possible staff shortages for essential governmental functions. AP reports on the governor's action.

Factional Dispute In Ohio Mosque Can Only Be Decided In Quo Warranto Action By State

In Masjid Omar Ibn El Khattab Mosque v. Salim, (OH App., June 27, 2013), two competing groups each claimed to be the governing board of the Omar Mosque in Columbus, Ohio. The Mosque, at the instigation of the first board, filed suit in a state trial court seeking a temporary restraining order to require the second board to declare that it had no authority to control or direct the affairs of the Mosque. The members of the second board filed a counterclaim seeking a declaratory judgement that they are the legitimate board of the Mosque. The Court of Appeals upheld the determination that the trial court lacks jurisdiction in the case because the suit was asking it to determine an issue that can only be decided in a quo warranto action.  Under Ohio Revised Code, Chap. 2733, a quo warranto action can only be brought by the attorney general or a prosecuting attorney in the state Supreme Court or a Court of Appeals. The appeals court however held that the trial court's dismissal should have been without prejudice and that the trial court should have stayed the action so that it could be determined what to do with the Mosque's funds that were being held by the court during the litigation.

California State Court Judge Says Yoga Program In Schools Does Not Promote Religion

In California today a state trial court rejected a state constitutional challenge to the Encinitas Unified School District's teaching of Ashtanga yoga as part of the district's enrichment program. The district received a $533,000 from the Jois Foundation to fund the program. A suit by the National Center for Law and Policy contended that Ashtanga yoga is inherently religious because it is rooted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs.  The complaint alleged that teaching yoga in the public schools violates California constitutional bans on governmental religious preferences and use of state resources to promote or support religion. (See prior posting.) According to a 10News report on today's decision:

Judge John Meyer determined that a reasonable student would not associate yoga with religion because of the way the district set up its program. Meyer said he believed the district was not teaching any religious components during the classes and that he sees yoga as something similar to traditional PE sports such as kickball or volleyball. Meyers also found that the district's program follows state guidelines.

The National Center for Law and Policy issued a statement today saying that today's decision "is not the end of the road for this case or the last word regarding the fate of yoga in public education—this is only the beginning."

UPDATE: Here is the full text of the court's Minute Order in Sedlock v. Baird, (CA Super. Ct., July 1, 2013), thanks to Volokh Conspiracy.

Russia Sues Library of Congress For Return Of Loaned Books From Collection At Center of U.S. Litigation

As previously reported, in long-running litigation a U.S. federal district court has held the Russian government and three of its agencies in civil contempt for not complying with a 2010 default judgement ordering it to return two expropriated collections of valuable Jewish religious books and manuscripts to Chasidei Chabad of United States. Now the Russian government has instituted its own lawsuit in a Russian court to force the U.S. Library of Congress to return seven books from one of the two collections that are on loan to it from Russia. Interfax reports today on a statement from Russia's ministry press service:

On July 1 the Ministry of Culture and the Russian State Library filed a motion at the Moscow Arbitration Court to bind the Library of the U.S. Congress to return seven books from the Schneerson library of the collection of the RSL center of Oriental literature received in 1994 for temporary use under the international library exchange system.

 Agudas Chasidei Chabad is also named as a party in the lawsuit.

Recent Articles and Books of Interest

From SSRN:

• Dwight G. Newman, On the Trinity Western University Controversy: An Argument for a Christian Law School in Canada, (Canadian Association of Law Teachers Annual Meeting in Victoria, British Columbia, June 4, 2013).
• John Copeland Nagle, What Hath Lynn White Wrought?, (2 Fare Forward 44 (2012)).
• Lida Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (78 Brook. L. Rev. 777 (2013)).
• Douglas NeJaime, Before Marriage: The Unexplored History of Nonmarital Recognition and Its Impact on Marriage, (California Law Review, Vol. 102, 2014, Forthcoming).
• Pinkeshwar Gangwar, Discrimination Against Dalits, (June 20, 2013).
• Erik James Girvan, & Grace M. Deason, Social Science in Law: A Psychological Case for Abandoning the 'Discriminatory Motive' under Title VII, (Cleveland State Law Review, Vol. 60, 1057 (2013)).

From SmartCILP:

• Giorgio Bernini, The Parties' Right to Choose Their Arbitrator and the Prohibition Against Discrimination: An Unstable Balance. A Comment on the Judgments in Jivraj v. Hashwan, [Abstract], 24 American Review of International Arbitration 27-62 (2013).
• Michael Blakeney, Protecting the Spiritual Beliefs of Indigenous Peoples--Australian Case Studies, 22 Pacific Rim Law & Policy Journal 391-427 (2013).
• The Legacy of the Arab Spring. Introduction by Ayodeji K. Perrin; symposium keynote lectures by Khaled Abou El Fadl and Lina Khatib; essays by Lama Abu Odeh, Ann Elizabeth Mayer, Amit K. Chhabra, Amos N. Guiora and Jordan J. Paust. 34 University of Pennsylvania Journal of International Law 305-446 (2013).

New Books:

• Marie A. Failinger, Elizabeth R. Schiltz & Susan J. Stabile (eds.), Feminism, Law, and Religion, (Ashgate Publishing, July 2013).
• James P. Byrd, Sacred Scripture, Sacred War: The Bible and the American Revolution, (Oxford University Press, June 2013).
• George Anastaplo, Reflections on Religion, the Divine, and the Constitution, (Lexington Books, August 2013).

Limits On Nude Sunbathing Are Not Violation of Naturist's Free Exercise Rights

In Wittbold v. Miami-Dade County, (SD FL, June 27, 2013), a Florida federal district court dismissed a lawsuit claiming that the county, by limiting nude sunbathing to one fenced area of the 177 acre Haulover Beach Park, violated plaintiff's 1st Amendment right to practice his religion of Naturism as well as his due process rights. According to the court, plaintiff's complaint "is a cacophony of irrelevant facts, biblical quotations and personal opinions that fail to state any cause of action."

Recent Prisoner Free Exercise Cases

[Note to readers: LEXIS Links in this and future postings are to Lexis Advance]

In Scott v. Shamsiddeen, 2013 U.S. Dist. LEXIS 86522 (ND NY, June 20, 2013), a New York federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 86474,  May 28, 2013) and dismissed an inmate's complaint that on two dates in 2011 he was deprived of Eid-ul-Adha religious meals. The problem resulted from authorities mistakenly believing plaintiff had been transferred.

In Jack-Bey v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 86645 (WD MI, June 20, 2013), while rejecting class action certification and damage claims, a Michigan federal district court permitted an inmate to proceed with his injunctive action claim that "Moorish Science Temple of America-1928 Grand Body" should be recognized by prison authorities (and its practices accommodated) as a separate religious group from "Moorish Science Temple of America, Inc. (1934 Portion)".

In Fabre v. Thompson, 2013 U.S. Dist. LEXIS 88116 (D OR, June 24, 2013), an Oregon federal district court dismissed a claim brought by plaintiff who was involuntarily committed for psychiatric treatment that his free exercise rights were violated when authorities invaded his soul and psyche, blocking the pathways to commune with God.

In Olmos v. Ryan, 2013 U.S. Dist. LEXIS 88118 (D AZ, June 24, 2013), an Arizona federal district court rejected a convicted child sex offender's claim that his probation conditions requiring that he obtain permission before going to places frequented by children under 18 violate his free exercise rights by preventing him from engaging in the close, frequent association with fellow believers.

In Lindsey v. Butler, 2013 U.S. Dist. LEXIS 88601 (SD NY, June 18, 2013), a New York federal district court permitted plaintiff, a Muslim, to file an amended complaint alleging that his free exercise and due process rights were infringed when he was forcibly shave while being detained at a police station following his arrest. Police shaved petitioner because others in the planned police line-up did not have beards.

In Calhoun-El v. Maynard, 2013 U.S. Dist. LEXIS 89945 (D MD, June 24, 2013), a Maryland federal district court dismissed an inmate's complaint that Muslim inmates do not receive ceremonial food packages equal to those given to inmates who keep a kosher diet.

In Turner v. Weikal, 2013 U.S. Dist. LEXIS 90463 (MD TN, June 27, 2013), a Tennessee federal magistrate judge recommended that a Muslim inmate be permitted to proceed with his 1st Amendment free exercise claims alleging that on 3 occasions he was not permitted to pray as required by his religious beliefs, he could not gather with other Muslims during Ramadan, he was not provided a correct religious diet, religious materials were removed from his room on two separate occasions, and he was retaliated against because of his Muslim faith. However his RLUIPA damage claims were dismissed.

Cert. Denied In Other DOMA Cases

Last Thursday, a day after issuing its same-sex marriage decisions, the U.S. Supreme Court cleaned up its docket by denying certiorari in several other cases challenging the constitutionality of DOMA.  The Court denied review in Windsor v. United States (Docket No. 12-63) and Bipartisan Legal Advisory Group v. Windsor, (Docket No. 12-785). It also denied review in Bipartisan Legal Advisory Group v. Gill (Docket No. 12-13), Department of Health & Human Services v. Massachusetts, (Docket No. 12-15), and Massachusetts v. Department of Health & Human Services, (Docket No. 12-97). (See prior related posting.) (June 27 Order List.)

Procedural Wrangling Tries To Delay Same-Sex Marriages In California

In its widely reported decision in Hollingsworth v. Perry last Wednesday, the U.S. Supreme Court held that petitioners lacked standing to challenge California's anti-gay marriage Proposition 8. SCOTUS remanded the case and ordered the 9th Circuit to dismiss the appeal from the district court. However it will be at least 25 days from the decision date until the Supreme Court formally certifies a copy of its judgment to the 9th Circuit.  Nevertheless, acting quickly, yesterday the 9th Circuit issued an Order (full text) dissolving the stay it had previously entered. That stay was the last impediment to same-sex marriage in California. Today, as same-sex marriages were being performed in the state, the proponents of Proposition 8 filed a motion (full text) with the U.S. Supreme Court asking it to vacate yesterday's 9th Circuit order on the ground that the 9th Circuit has no jurisdiction to act until the Supreme Court formally issues a certified copy of its judgment to it. Proponents argued that the premature termination of the stay deprives them of a meaningful opportunity to petition the Supreme Court for a rehearing. The Los Angeles Times and SCOTUS Blog report on this latest procedural wrangling.

UPDATE: AP reports that on June 30, Justice Anthony Kennedy denied the motion to vacate the 9th Circuit's order. Kennedy is the Justice assigned to receive motions regarding 9th Circuit cases.

Suit For Ministry Candidate's File Dismissed Under "Ecclesiastical Deference" Doctrine

In Mason v. Presbytery of San Francisco, (CA App., June 25, 2013), a California state appellate court dismissed under the "ecclesiastical deference" doctrine a lawsuit by a candidate for the Presbyterian ministry who sought access to her full candidacy file when, after ten years in the process, her candidacy was terminated. The court said that deciding whether there had been a contractual agreement to furnish the file to plaintiff at the end of her candidacy process, even if she did not receive a call to the ministry:

would require the courts to become embroiled in matters of church polity relating to the consideration of candidates for ministry and the handling of confidential or sensitive information received during the candidacy process. Thus, it is not possible for the courts to resolve the contract dispute alleged in the [complaint] without becoming entangled in matters of church polity.

The court also noted that in 2003:

the Permanent Judicial Commission of the General Assembly of the Presbyterian Church ,,, concluded, in a different matter, that respondent was not required to provide a candidate confidential documents relating to termination of the candidate.

Final Contraceptive Coverage Mandate Exemptions and Accommodations Issued For Religious Non-Profits

The Department of Health and Human Services announced today that it has adopted final rules on non-profit religious organizations and the contraception-coverage mandate under the Affordable Care Act. The rules (full text) deal both with the definition of those religious employers that are totally exempt from the requirement, and arrangements for coverage to be provided directly from health insurers in connection with other non-profit religious organizations that object to contraception coverage. According to the press release:

Today’s final rules finalize the proposed simpler definition of “religious employer” for purposes of the exemption from the contraceptive coverage requirement in response to concerns raised by some religious organizations.  These employers, primarily houses of worship, may exclude contraceptive coverage from their health plans for their employees and their dependents.

The final rules also lay out the accommodation for other non-profit religious organizations - such as non-profit religious hospitals and institutions of higher education - that object to contraceptive coverage.   Under the accommodation these organizations will not have to contract, arrange, pay for or refer contraceptive coverage to which they object on religious grounds, but such coverage is separately provided to women enrolled in their health plans at no cost.  The approach taken in the final rules is similar to, but simpler than, that taken in the proposed rules, and responds to comments made by many stakeholders.

With respect to an insured health plan, including a student health plan, the non-profit religious organization provides notice to its insurer that it objects to contraception coverage.  The insurer then notifies enrollees in the health plan that it is providing them separate no-cost payments for contraceptive services for as long as they remain enrolled in the health plan. 

Similarly, with respect to self-insured health plans, the non-profit religious organization provides notice to its third party administrator that objects to contraception coverage.  The third party administrator then notifies enrollees in the health plans that it is providing or arranging separate no-cost payments for contraceptive services for them for as long as they remain enrolled in the health plan.

According to a Fact Sheet on the new rules eliminate the requirements that a "religious employer" have the inculcation of religious values as its purpose; primarily employ persons who share its religious tenets; and primarily serve persons who share its religious tenets. For other non-profits, coverage directly from the insurer is available for any organization that:

on account of religious objections, opposes providing coverage for some or all of any contraceptive services otherwise required to be covered; is organized and operates as a nonprofit entity; holds itself out as a religious organization; and self-certifies that it meets these criteria in accordance with the provisions of the final regulations.

Pope Appoints Commission To Investigate Vatican Bank Amid Money Laundering Arrests

AKI reports today that the Vatican says it will cooperate fully with Italian authorities in their investigation of the Vatican Bank's (IOR) involvement in money laundering.  Today authorities arrested Monsignor Nunzio Scarano, a Vatican accountant on suspicion of fraud, corruption and slander. Scarano was suspended last month from the Vatican's Administration of the Patrimony of the Apostolic See which manages the Vatican's assets. Also arrested today were an Italian secret services agent and a financial broker who are suspected of involvement in an attempt to illegally move 20 million Euros to Italy. According to Deutsche Welle:

Earlier this week the AP ... reported that Scarano had withdrawn more than half a million euros in charitable donations without any flags being raised, walked out of Vatican City with the cash, and then used it to pay off a personal mortgage.

On Friday, dpa quoted Italian prosecutors as saying Bishop Scarano had paid Zito [the former intelligence officer] 400,000 euros ($520,000) to transport 20 million euros in cash from Switzerland to Italy onboard a private jet.

On Wednesday the Vatican announced that Pope Francis has set up a 5-member Pontifical Commission to investigate IOR's activities. It is charged with "gather[ing] accurate information on the Institute's legal position and various activities, in order to allow, if necessary, a better harmonization of the same with the universal mission of the Apostolic See."  (Chirograph establishing the Commission.) Among the Commission members is Harvard Law Professor Mary Ann Glendon, a former U.S. Ambassador to the Vatican.

UPDATE: The Director and Deputy Director of the Vatican Bank resigned on July 1. (National Catholic Reporter.)

Russian Upper House Sends Ban on Insulting Religion to Putin For Signature; USCIRF Criticizes Bill

As previously reported, earlier this month the Russian Duma (lower house of Parliament) passed amendments to the Russian Criminal Code to punish insulting the religious beliefs and feelings of citizens. Yesterday the law was approved by the Federation Council (the upper house of Parliament). (Legislative history in Russian).  The bill must still be signed by President Vladimir Putin in order for it to become law. Today the U.S. Commission on International Religious Freedom issued a press release strongly critical of the new law, saying in part:

The bill now awaits only a presidential signature before becoming law, most likely on July 1. The bill would punish alleged offenses against religious sentiments by up to three years in prison. 

 “With space for free expression shrinking rapidly in Russia, enactment of this bill would further erode human rights protections in Russia,” said U.S. Commission on International Religious Freedom (USCIRF) Chair Dr. Katrina Lantos Swett.  “Speech limitations violate Russia’s international commitments, and this law will lead to abuse and arbitrary rulings against permissible speech that some deem ‘offensive..... [I]f enacted, this new law gives credence to the view Russian human rights activists expressed to me that Russia is in full retreat from democracy and the rule of law.” 

UPDATE: Radio Free Europe reported on June 30 the President Putin signed the bill into law, along with a second controversial bill that prohibits disseminating to minors any propaganda involving "nontraditional sexual relations."

Former Guantanamo Detainee's Suit Alleging Free Exercise Violations Dismissed For Lack of Jurisdiction

In Ameur v. Gates, (ED VA, June 29, 2013), plaintiff, an Algerian citizen arrested in Pakistan and subsequently transferred to Guantanamo Bay for five years, sued various former government officials for damages alleging that his treatment violated customary international law, the Geneva Convention, the 5th Amendment, the 1st Amendment's free speech and free exercise protections, and the Religious Freedom Restoration Act. The court dismissed his claims finding that the Military Commission Act divests the court of jurisdiction. Lawfare blog has more on the decision.

Former School Employees State Claims For Anti-Mormon Bias

In Hunt v. Central Consolidated School District, (D NM, June 12, 2013), a New Mexico federal district court in a long opinion held that a former Transportation Director and former Custodial Supervisor could proceed with claims that their reassignments as part of a school district administrative restructuring were motivated by anti-Mormon bias. The court held that plaintiffs had stated plausible claims of discrimination, conspiracy and breach of contract. The suit alleged that the school board president and his campaign manager were involved in anti-Mormon comments that were posted on a local newspaper's blog.