Religious Pre-School's Exclusion From State Grant Program Required By State Constitution

In Trinity Lutheran Church of Columbia, Inc. v. Pauley, 2013 U.S. Dist. LEXIS 147674 (WD MO, Sept. 26, 2013),  a Missouri federal district court upheld the policy of the Missouri Department of Natural Resources Solid Waste Management Program to exclude from its Scrap Tire Program any organization controlled by a church or by a religious sect or denomination. Thus plaintiff's religiously-affiliated day care and preschool facility could not apply for a grant under the program to buy recycled tires to resurface its playground. First the court concluded that providing a grant through the Scrap Tire Program would violate Art. I, Sec. 7 of the Missouri constitution that prohibits the expenditure of any public funds to aid a church or religious denomination.  The court then rejected arguments that the ban violated plaintiff's free exercise, establishment clause, free speech and equal protection rights under the U.S. Constitution.

Still No Burial Decision For Nazi War Criminal After Controversial Funeral Disrupted

As previously reported, when convicted Nazi war criminal Erich Priebke died in Italy last week, the Vatican prohibited any church in Rome from celebrating a funeral mass for him.  However, as reported Tuesday by the International Business Times, the renegade traditionalist Society of St. Pius X decided to allow the funeral to be held at its Pius X Institute in the town of Albano Laziale just outside of Rome. Dozens of demonstrators attacked Priebke's hearse chanting "murderer" and anti-Fascist slogans as the body was moved to the Institute, and the mayor of the town said he would not allow burial there.  Now JTA reports that the funeral ceremony was called off when authorities refused to allow participants to enter, and Priebke's body is being held at a military airport with no final decision about burial.

Suit Challenges Oregon Same-Sex Marriage Ban

According to the Willamette Week, two same-sex couples filed suit in federal district court in Oregon this week challenging Oregon's state constitutional ban on same-sex marriage. One of the couples wants to marry in Oregon; the other couple wants its Canadian same-sex marriage recognized in Oregon. The complaint (full text) in Geiger v. Kitzhaber, (D OR, filed 10/15, 2013), contends that the Oregon constitutional ban violates the equal protection and due process clauses of the 14th Amendment. [Thanks to Alliance Alert for the lead.]

Amtrak Bus Driver Refuses To Allow Sikh Student To Board Wearing Kirpan

In Davis, California last Saturday, an Amtrak bus driver barred a Sikh college student from boarding the bus that connects with a train in Sacramento because the student was wearing his kirpan (Sikh ceremonial dagger). According to the Davis Enterprise, 20-year old managerial economics student Harsimran Singh had often worn his kirpan on this same bus. This time however, the driver called police when he spotted the 9-inch kirpan, and refused to allow Singh to board unless he would place the kirpan in his back pack and store it in the bus luggage compartment.  The Sikh faith requires wearing the kirpan next to one's body.

French High Court Upholds Scientology Fraud Convictions

AFP reports that in France, the Cour de Cassation, the country's highest court, yesterday upheld the 2009 fraud conviction of two French affiliates of the Church of Scientology for manipulating two women into buying products or enrolling in courses. (See prior posting.) Scientology's Celebrity Centre and its bookshop in Paris were fined the equivalent of $812,000 (US).  The court rejected Scientology's claim that the convictions violated its religious freedom.  France does not consider Scientology to be a religion.  The church is expected to appeal to the European Court of Human Rights.

President Issues Eid al-Adha Greetings

Yesterday, President Obama issued a statement (full text) extending best wishes for Eid al-Adha to Muslims around the world and congratulating those who performed the Hajj this year. The statement reads in part:

To commemorate Eid al-Adha, Muslims around the world are joining other faith communities in offering their assistance to those suffering from hunger, disease, and conflict.  Their service is a powerful example of the positive role that faith can play in motivating communities to work together to address shared challenges.

Another Non-Profit Challenge To Contraceptive Coverage Mandate

Last week, yet another lawsuit challenging the Affordable Care Act contraceptive coverage mandate was filed. The Becket Fund announced the filing of the class action by three Christian religious non-profits on behalf of over 100 ministries that currently receive health benefits through the Southern Baptist Convention's GuideStone Financial Resources, one of the largest multi-employer church health care plans in the country. The complaint (full text) in Reaching Souls International, Inc. v. Sebelius, (WD OK, filed 10/11/2013) contends that even under the final regulations that allow religious non-profits to have a third-party administrator furnish contraceptive coverage, plaintiffs' religious exercise is burdened because they are required to facilitate coverage for contraceptives that they consider to be abortifacients.

Woman Sues Christian Group Saying She Was Fired For Divorce While Men Were Treated Differently

Religion News Service reports on a lawsuit against InterVarsity Christian Fellowship by a former spiritual director who says she was fired because of her divorce.  IVCF has a Separation and Divorcing Staff Policy under which Alyce Conlon was placed on paid leave when she informed her supervisors that she and her husband were considering separating. When she was not successful in reconciling, she was fired.  She claims that two male colleagues who divorced and remarried were treated differently, being allowed to remain on staff.  IVCF responded to the lawsuit by saying in part:

As a Christian organization, InterVarsity Christian Fellowship’s credibility and witness depends on its ability to hire and retain personnel who share and abide by InterVarsity’s faith commitments. It is deeply regrettable that a former employee has chosen to challenge this key constitutional liberty.”

Animal Rights Activists Disrupt Eid al-Adha Animal Slaughter In Poland

In Poland yesterday, animal rights activists disrupted Eid al-Adha celebrations that traditionally involve the slaughter of live animals. AlJazeera reports that in the village of Bohoniki, activists tried to require Muslim Tatars to comply with the  requirement that animals be stunned before they are slaughtered. (See prior posting.) However religious leader Tomasz Miśkiewicz said at least one animal was killed to keep the culture of Muslim Tatars alive.

Cert. Filed In Contraceptive Mandate Case

The Thomas More Society announced that a petition for certiorari (full text) was filed today in the U.S. Supreme Court seeking review of the 6th Circuit's decision in Autocam Corp. v. Sebelius.  In the case, the 6th Circuit denied  a preliminary injunction in an Affordable Care Act contraceptive coverage mandate challenge by two related small businesses and their Catholic owners (See prior posting.)

North Carolina County Official Takes Step To Advance Same-Sex Marriage [Corrected]

In North Carolina, AP reports that Buncombe County Register of Deeds Drew Reisinger said yesterday that he will begin accepting marriage license applications from same-sex couples, but will then merely hold the applications and seek legal advice from state Attorney General Roy Cooper. The county official's statement came just hours after Attorney General Cooper said he personally supports same-sex marriage, but will defend the state's constitutional ban on same-sex marriage in court. [An earlier version of this posting incorrectly referred to South Carolina.]

Suit Challenges Lay-Off of Contract Military Chaplains During Government Shut-Down

The Thomas More Law Center announced yesterday that it has filed a suit on behalf of Catholic priest Fr. Ray Leonard, who is a civilian under contract with the Department of Defense to provide Catholic religious services at a naval submarine base.  The suit was also filed on behalf of one of Leonard's congregants.  The complaint (full text) in Leonard v. U.S. Department of Defense, (D DC, filed 10/14/2013) contends that plaintiffs' rights under the 1st Amendment and RFRA are violated because Leonard is unable to continue to celebrate daily mass at the naval base during the government shutdown. As interpreted by the Department of Defense, the recently enacted Pay Our Military Act is not broad enough to cover civilian contract chaplains, and the Anti-Deficiency Act, 31 USC 1342, prohibits the government from receiving Leonard's services free of charge. The suit seeks to enjoin application of the Anti-Deficiency Act to Leonard's speech and activities as a Catholic priest. CNN Wire reports on the case.

UPDATE: In an Oct. 16 press release, the Thomas More Law Center reports that the Justice Department and Department of the Navy decided that Fr. Leonard could resume all his religious duties as of that date.  However the lawsuit will continue to prevent a recurrence of the ban in any future government shutdown.

Malaysia Appeals Court Upholds Ban On Catholic Newspaper Using "Allah"

As reported by Reuters, the Court of Appeal of Malaysia today, in a 3-0 decision, reversed the High Court (see prior posting) and upheld a licensing condition imposed by the Minister of Security prohibiting the Catholic newspaper The Herald from using the word "Allah" in its Malay language edition to refer to God.  In Negeri v. Titular Roman Catholic Archbishop of Kuala Lumpur, (Malay. Ct. App., Oct. 14, 2013), the judges' views were encapsulated in a Summary of Decision, which was accompanied by separate opinions by Judges Mohamed Apandi Bin Ali (full text), Abdul Aziz Bin Abd Rahim (full text), and Mohd Zawawi Bin Salleh (full text).  The court held:

It is our common finding that the usage of the name “Allah” is not an integral part of the faith and practice of Christianity. From such finding, we find no reason why the respondent is so adamant to use the name “Allah” in their weekly publication. Such usage, if allowed, will inevitably cause confusion within the community.....

[T]he welfare of an individual or group must yield to that of the community.... [T]his is how the element of “in peace and harmony” in Article 3(1) is to be read with the freedom of religion in Article 11(1) of the Federal Constitution....

[S]ufficient material have been considered by the Minister in discharging his function and statutory power under the Printing Presses And Publications Act 1984. Although the test under the written law is subjective, there are sufficient evidence to show that such subjective decision was derived by considering all facts and circumstances in an objective manner. Thus, there is no plausible reason for the High Court to interfere with the Minister's decision.

In the case, (See prior related posting.)

Nazi War Criminal Erich Priebke Dies; Church, Italian and Argentine Governments, Refuse Funerals For Him

Convicted Nazi war criminal Erich Priebke died Friday at age 100 while serving a life sentence under house arrest in Rome at the home of his lawyer. As reported by AP, Priebke (after living nearly 50 years in Argentina) was extradited in 1995 to stand trial in Italy for the 1944 massacre at the Ardeatine Caves outside Rome in which 335 civilians were killed.  Pope Francis' vicar for Rome, Cardinal Agostino Vallini, has prohibited any church in Rome from celebrating a funeral mass for Priebke. The Rome archdiocese says his funeral must be held at home in strict privacy. Rome's police and civil officials said they would also bar any public ceremony out of security concerns. Meanwhile, Argentine Foreign Minister Hector Timerman said that Priebke's body would not be allowed into Argentina either. However Priebke' lawyer Paolo Giachini argued that as a practicing Catholic, Priebke deserves a Catholic funeral as a matter of his religious liberty. He suggested that Priebke might be buried in Germany, and a German Foreign Ministry spokesman said that German citizens had that right, though no request has been made by any of Priebke's family members.

Court Upholds Enforcement of Christian Arbitration Agreement In Wrongful Death Suit

In Spivey v. Teen Challenge of Florida, Inc. (FL App., Oct. 11, 2013), a Florida state appellate court upheld a trial court's enforcement of a Christian-based arbitration/ mediation agreement, requiring a mother to resolve her wrongful death action against a residential substance abuse program under the agreement that invoked rules of the Association of Christian Conciliation Services. The court observed that "private religious arbitration ... is exceedingly common in our pluralistic religious society...."

Holding that the mother, as the personal representative of her deceased 19-year old son, was bound by the agreement he signed, the court rejected several constitutional challenges to enforcement of the arbitration agreement.  The mother argued that she should not be required to engage in mediation that includes prayer as a part of the process, but the court held that "a personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative." The court concluded:

Indeed, had the trial court determined that the arbitration agreement was unenforceable due to its religious nature, its action “could itself arguably constitute an impermissible entanglement” under religion clause jurisprudence.

Recent Articles and Books of Interest

From SSRN:

• Muhammed Tawfiq Ladan, Managing Diversities for Peaceful Co-Existence in a Democratic Nigeria: A Human Rights Perspective, (August 20, 2013).
• Andrew Koppelman, 'Freedom of the Church' and the Authority of the State, (Journal of Contemporary Legal Issues, Forthcoming).
• Stephen M. Bainbridge, Must Salmon Love Meinhard? Agape and Partnership Fiduciary Duties, (UCLA School of Law, Law-Econ Research Paper No. 13-17, 2013).
• Perry Dane, Nature, Equality, and Same-Sex Marriage, (Buffalo Law Review Forthcoming).
• Benjamin L. Berger, Religious Diversity, Education, and the 'Crisis' in State Neutrality, (Canadian Journal of Law and Society, Forthcoming).

From SmartCILP:

• Julia Halloran McLaughlin, Taking Religion Out of Civil Divorce, 65 Rutgers Law Review 395-446 (2013).
• Symposium. In Search of a 'Grand Unified Theory': Thirty Years with the Endorsement Test. Articles by Carl H. Esbeck, Edward M. Gaffney, Jr., Patrick M. Garry, William M. Janssen and Andrew Koppelman. 7 Charleston Law Review 607-725 (2013).

Recent  Books:

• Daniel Jonah Goldhagen, The Devil That Never Dies: The Rise and Threat of Global Antisemitism (Little Brown, Sept. 2013), reviewed by the New York Times.
• Robert L. LaCosta, Gamaliel’s Advice: Taking Down God, (WestBow Press, June 2013), reviewed by the La Jolla Light.
• Denise A. Spellberg, Thomas Jefferson's Qur'an: Islam and the Founders, (Knopf, Oct. 1, 2013).

Hajj Begins; Fewer Visas Because of Health Concerns

In Saudi Arabia, the hajj began yesterday. AP reports that the Saudis cut the number of hajj visas by 20% for each country out of concern over a respiratory virus that has killed over 50 people in Saudi Arabia this year. The more than 2 million pilgrims this year (a 1 million reduction from last year) reflects fewer visas for the elderly, pregnant women and those with chronic illnesses.

Traditional Marriage Group Sues IRS Alleging Illegal Release of Tax Returns To Opponents

Earlier this month, the National Organization for Marriage-- an organization whose purpose is to protect traditional marriage and the faith organizations that support it-- announced that it has filed suit against the Internal Revenue Service over the alleged illegal release of its 2008 confidential tax return to ideological opponents. The complaint (full text) in National Organization For Marriage, Inc. v. U.S. Internal Revenue Service, (ED VA, filed 10/3/2013) alleges:

In March 2012, individuals employed by the IRS ... disclosed NOM's confidential ... 2008 IRS Fonn 990, Schedule B, which contains the names, home addresses, and contribution amounts of NOM's 2008 donors, to one or more third parties, including NOM's ideological opponent, the Human Rights Campaign....  On information and belief, the individuals from the IRS chose to make this disclosure ... specifically intending that those third parties would widely publish the information.... NOM's confidential return information was subsequently published on the Internet by third parties, including HRC and the Huffington Post ... making it available to millions of people. These disclosures are part of a deliberate attempt to chill the First Amendment activity of NOM, its donors, and others who associate with NOM.

The complaint seeks damages and injunctive relief.

9th Circuit Hears Oral Arguments By Proposition 8 Backers For Disclosure Exemption

On Friday, the U.S.9th Circuit Court of Appeals heard oral arguments in ProtectMarriage.com - Yes on 8 v. Bowen. (Audio of full arguments.) As reported by the San Francisco Chronicle, at issue is the attempt by backers of California's 2008 Proposition 8 to avoid California's required filing of the names of contributors of $100 or more to the campaign to pass the now-overturned Prop 8 ban on same-sex marriage. Appellants say that backers have already suffered vandalism, hate mail, boycotts and death threats. While the names of contributors have already been released by state court order, appellants want the federal court to order the state to remove the names from its website, seal its files, and grant a filing exemption for future elections.

Recent Prisoner Free Exercise Cases

In Smith v. City of New York, 2013 U.S. Dist. LEXIS 144122 (SD NY, Sept. 26, 2013), eight Rikers Island inmates sued alleging that unlike other religions, Muslims were not given dedicated prayer space, religious materials or adequate Halal meals.  One plaintiff was dismissed because of a prior settlement; and 4 more were dismissed for failing to exhaust administrative remedies.  An exhaustion hearing was scheduled for the other three.

In Brown v. Fischer, 2013 U.S. Dist. LEXIS 145586 (WD NY, Oct. 8, 2013), a New York federal district court dismissed a Jewish inmate's claim that his free exercise rights were infringed when one of his kosher meals contained a package of what he believed was non-kosher salami.