U.N. Committee Report Critical of Vatican on Protection of Children

On January 31, the United Nations Committee on the Rights of the Child finished its 65th Session after adopting its concluding observations and recommendations on six nations, including the Holy See. (Press release.) As reported yesterday by CNN, the Committee's Concluding Observations on the Second Periodic Report of the Holy See (full text) harshly criticized the Vatican's handling of child sexual abuse within the Church. The 16-page report says in part:

The Committee is particularly concerned that in dealing with allegations of child sexual abuse, the Holy See has consistently placed the preservation of the reputation of the Church and the protection of the perpetrators above children’s best interests, as observed by several national commissions of inquiry....

The Committee is concerned about the situation of children born of Catholic priests, who, in many cases, are not aware of the identity of their fathers. The Committee is also concerned that the mothers may obtain a plan for regular payment from the Church until the child is financially independent only if they sign a confidentiality agreement not to disclose any information....

The Committee is particularly concerned that: ... Due to a code of silence imposed on all members of the clergy under penalty of excommunication, cases of child sexual abuse have hardly ever been reported to the law enforcement authorities....; Reporting to national law enforcement authorities has never been made compulsory..... Church authorities, including at the highest levels of the Holy See have shown reluctance and in some instances, refused to cooperate with judicial authorities and national commissions of inquiry.... Limited efforts have been made to empower children enrolled in Catholic schools and institutions to protect themselves from sexual abuse.

(See prior related posting.)  A Vatican Radio interview with Archbishop Silvano Tomasi, Permanent Observer of the Holy See to the United Nations in Geneva, and a statement from the Vatican react to the report. Both of these reactions include expressions of concern apparently directed to the U.N. report's call for the Vatican to review its position on abortion and identify circumstances under which it can be permitted.

Lawsuit By MLK's Estate Seeks His Famous Bible and Nobel Medal From King's Daughter

The Atlanta Journal Constitution reports that a lawsuit was filed in state court in Georgia last Friday by the estate of Martin Luther King, Jr. (controlled by two of King's children, Martin III and Dexter) against King's daughter Bernice seeking to force Bernice to turn over to the King estate Dr. King's "traveling" Bible and his Nobel Prize medal. The Bible is the one President Barack Obama used for his ceremonial swearing-in on MLK Day in 2013. King's heirs agreed in 1995 to sign over rights to various items they inherited to the King estate.  In a statement, Bernice King says she is refusing to turn the items over because her brothers want to sell them to a private buyer. She explained:

As a minister of the Gospel, the thought of selling my daddy’s Bible troubles my mind, vexes my spirit and weighs on my soul.  The thought of profiting from the sale of the Peace Prize Medal, which my father accepted 50 years ago this year on behalf of the greatest demonstration of peace this nation has ever seen, is spiritually violent, unconscionable, historically negligent, and outright morally reprehensible.

The three siblings have been involved in various lawsuits against one another since 2008.

Tennessee Magistrate Who Objected To Parents' Naming Child "Messiah" Is Fired

Reuters reported yesterday that Tennessee Child Support Magistrate Lu Ann Ballew who gained widespread attention after she insisted that parents change their child's first name from "Messiah" to "Martin" has been fired from her position, effective last Friday, by the presiding judge of Tennessee's 4th judicial district. Ballew told the child's parents-- who had a dispute only over the child's last name-- that: "the word Messiah is a title and it's a title that has only been earned by one person and that one person is Jesus Christ." Her decision was reversed by a chancery court judge.  Ballew has been charged with ethics violations for her action by the Tennessee Board of Judicial Conduct. (See prior posting.)

Israel's High Court Bars Subsidies For Some Yeshiva Students Who Have Received Draft Deferrals

In Israel yesterday, the High Court of Justice issued an interim injunction in the sensitive dispute over drafting of ultra-Orthodox Jews into the Israeli military. The Jerusalem Post reports that the Court order prohibits the government from transferring funds for stipends to some 3000 yeshiva students. In 2012, Israel's High Court of Justice held that the "Tal Law" that provided exemptions for ultra-Orthodox students and a framework for subsidizing their religious studies conflicted with Israel's Basic Law, and therefore the Knesset could not extend the law in its then existing form after its July 2012 expiration. (See prior posting.) The Knesset has so far been unable to agree on a new law. However, the government has continued paying stipends, and the Justice Minister issued mass deferrals to Orthodox students who received enlistment orders after the Tal Law expired.  In yesterday's action, the High Court ruled that no future stipends may be paid to yeshiva students in the 1994, 1995, and first half of 1996 cohorts who have received enlistment orders but have been deferred.

Indian Court Reduces Waiting Period Requirement For Christian Divorces

Times of India reports that on Monday the Karntaka High Court ruled that the provision in Section 10A of India's Divorce Act 1869, the law that applies to Christian divorces, which requires a 2-year separation period before a petition can be filed for dissolution of marriage by mutual consent is invalid. The Hindu Marriage Act, the Parsi Marriage and Divorce Act and the Special Marriage Act all require only a one-year waiting period.  In a public interest lawsuit, the Karntaka court relied on an earlier decision by the Kerala High Court which held that Christian divorces should also be subject to only a one-year waiting period. According to Indian Supreme Court precedent, the prior ruling of another High Court becomes the law of the land unless it is challenged in the Supreme Court. In that earlier ruling, the Kerala High Court said:

[T]he stipulation of a higher period of two years of mandatory minimum separate residence for those to whom the Divorce Act applies, in contra-distinction to those similarly placed to whom Sec 13B of the Hindu Marriage Act, Sec 32B of the Parsi Marriage and Divorce Act and Sec 28 of the Special Marriage Act would apply, offends the mandate of equality and right to life under Arts14 and 21 of the Constitution

Orlando Moves Ahead To Take Church Property By Eminent Domain For Soccer Stadium

At its January 27 meeting (Council Minutes), Orlando, Florida City Council approved the use of eminent domain to acquire the property of Faith Deliverance Temple by eminent domain if negotiations with the church are not successful. As reported by the Orlando Sentinel (Jan. 31), the church is the last parcel needed by the city for construction of an $84 million Major League Soccer Stadium. Orlando has been awarded a major league expansion team for 2015. (Background.) In a decision last Friday, a Florida trial court judge ruled that two other parcels needed for the stadium can be taken by eminent domain, finding that the stadium is a legitimate public purpose. In negotiations, the city has offered Faith Deliverance Temple $1.5 million for its property, over  two times its appraised value. The family that owns the church building says it wants $35 million.

9th Circuit Stays Order Pending Cert. Petition In Case Upholding California's "Change Therapy for Minors" Ban

As previously reported, last week the U.S. 9th Circuit Court of Appeals denied en banc review of a 3-judge panel's decision that upheld California Senate Bill 1172. The bill bans state-licensed mental health providers from engaging in sexual orientation change efforts with patients under 18.  Now in Pickup v. Brown, (9th Cir., Feb. 3, 2014), the 9th Circuit has agreed to stay its mandate in the case while appellants file a petition for certiorari with the U.S. Supreme Court. Liberty Counsel issued a press release announcing the stay.

Mirror of Justice Celebrates 10 Years

Happy 10th Birthday to Mirror of Justice, one of the most thoughtful blogs on law and religion.  In his birthday posting, Rick Garnett describes the vision of the creative group of Catholic law professors who explore Catholic legal theory at MOJ. Others at MOJ have followed up with reflections on the blog's past and future-- a future that we all know will be a bright one.  You can always find a link to MOJ in the Religion Clause sidebar.

Church Permitted To Intervene In Suit Against Internal Revenue Service Over Political Activity By 501(c)(3)'s

In Freedom From Religion Foundation, Inc. v. Koskinen, (WD WI, Feb. 3, 2014), a Wisconsin federal district court permitted  Father Patrick Malone and the Holy Cross Anglican Church  to intervene as defendants in a lawsuit in which the Freedom From Religion Foundation is suing the Internal Revenue Service to challenge its alleged policy of not  enforcing against churches and religious organizations the Section 501(c)(3) ban on political activity by non-profits. According to the court:

Father Malone, the vicar of the church, regularly makes statements during worship services and church gatherings in which he urges members of the congregation to vote for or against certain candidates for public office..... So far, however, the IRS has not taken any action in response to the church’s activities..... But the church and Father Malone are concerned that if the Foundation obtains the relief it seeks in this lawsuit, then the IRS will be required to “punish” them for having engaged in political activity.

Ontario Court Orders Children From Jewish Sect Back To Quebec For Foster Care

In the Canadian province of Ontario yesterday, a trial court judge ordered that 13 children of the Jewish ultra-Orthodox Lev Tahor sect be returned to child protection authorities in Quebec where a court has already ordered the children be placed in foster care. (See prior posting.) When court proceedings were begun in Quebec, about 200 Lev Tahor members fled to Ontario in the middle of the night. As reported by Canadian Press, Chatham, Ontario judge Stephen Fuerth wrote in part:

It would be impractical at best and potentially harmful at worst if the society were now required, in the context of the need to protect the children, to conduct a separate and new investigation into all of the issues currently before the Court of Quebec...simply because the parents have decided as a tactical manoeuvre to absent themselves from Quebec in order to frustrate the process of justice that had started.

The court stayed its order for 30 days to give the families a chance to appeal, with provision for child protection workers to keep checking on the children. An appeal of the Quebec court order-- entered after the community fled-- is already being appealed.

Indiana Supreme Court Hears Arguments In Home Schooling Organization's Challenge To Retaliation Finding

Yesterday, the Indiana Supreme Court heard oral arguments (video of full arguments) in a case being closely followed by home school proponents-- Fishers Adolescent Catholic Enrichment Society, Inc. v. Bridgewater. In the case, a state appeals court held that the Indiana Civil Rights Commission has jurisdiction over a retaliation claim brought after the religious-based organization (FACES) expelled a family from membership when they complained that FACES refused to make health-related dietary accommodations for their daughter at a masquerade ball it sponsored. (See prior posting.) As reported by the Indianapolis Star, FACES argues that the action by the Civil Rights Commission infringes its religious freedom and its right to determine who will be a member. The student's family argues that the case is about disability discrimination.

Japanese Court Awards Unificationist Damages Against Relatives, Deprogrammer Who Held Him Captive

In Japan, 50-year old Toru Goto, a member of the Unification Church, has won a lawsuit against a religious deprogrammer and against his own brother, sister and sister-in-law who held him captive from September 1995 to February 2008 in an effort to get him to give up his religious beliefs. According to a press release from the Family Federation for World Peace and Unification, the Tokyo District Court in a Jan. 28 decision awarded Goto damages equivalent to $47,000(US). Unificationists hope this is a step toward ending deprogramming in Japan.

Recent Articles of Interest

From SSRN- U.S. Law and Legal Theory

• Robert T. Miller, Dogmatic Philosophy: A Review of 'Religion Without God', (240 First Things 59 (February 2014)).
• Christopher C. Lund, Rethinking the 'Religious Question' Doctrine, (Pepperdine Law Review (symposium) (2014 Forthcoming)).
• Kristine Kalanges, Religious Liberty: Between Strategy and Telos, (11 Review of Faith in International Affairs 28-31 (Winter 2013)).
• Caspar Behme, 'Ein furchtbares Verbrechen ward begangen' – Schuld und Sühne in der Tannhäuser-Legende ('A Fearful Crime Has Been Committed' – Guilt and Expiation in the Tannhäuser Legend), (December 17, 2013).
• Brian McCall, Can a Pluralistic Commonwealth Endure? The Political Problem of Religious Pluralism and Why Philosophers Can't Solve It by Thaddeus J. Kozinski, (Georgetown Journal of Law & Public Policy, Vol. 11, 2013).
• Caroline Mala Corbin, Corporate Religious Liberty, (January 24, 2014).
• Malcolm J. Harkins, The Uneasy Relationship of Hobby Lobby, Conestoga Wood, the Affordable Care Act and the Corporate Person: How a Historical Myth Woven Out of Whole Cloth Has Bedeviled the Legal System for Almost 150 Years, (St. Louis University Journal of Health Law & Policy (2014)).

From SSRN- Non-US Law:

• Gerry van Klinken, Religion, Politics and Class Divisions in Indonesia, (In "Dealing with Diversity," Bernard Adeney-Risakotta (ed.), Geneva: Globethics (2014)).
• Hamid Harasani, The English Rule Against Perpetuities and the Mandated Perpetuity of Islamic Waqfs: Three Colonial Cases, (8 The Journal of Comparative Law 172-191 (2013)).
• Clark B. Lombardi, Constitutional Provisions Making Sharia 'A' or 'The' Chief Source of Legislation: Where Did They Come from? What Do They Mean? Do They Matter?, (American University International Law Review, Vol. 28, No. 3, pp. 733-74, 2013).
• Kristine Kalanges, Talking Points on Report of the Special Rapporteur on Freedom of Religion or Belief (2013). Heiner Bielefeldt, A/HRC/22/51, Human Rights Council, UN, Geneva, (Prepared for the Caritas in Veritate Foundation, May 2013).
• Roberto Perrone, Public Morals and the ECHR, (University of Leicester School of Law Research Paper No. 14-02 (Jan. 2014)).
• Amna M. Qureshi, The Use of Demeanour Evidence in Credibility Assessments at Trial - A Critical Examination, (January 1, 2014).

From SmartCILP and elsewhere:

• Rafat Y. Alwazna, Testing the Precision of Legal Translation: The Case of Translating Islamic Legal Terms Into English, [Abstract], 26 International Journal for the Semiotics of Law 897-907 (2013).
• Benjamin P. Edwards, When Fear Rules in Law's Place: Pseudonymous Litigation As a Response To Systematic Intimidation, 20 Virginia Journal of Social Policy & Law 437-472 (2013).
• William M. Janssen, Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis, [Abstract], 116 West Virginia Law Review 33-107 (2013).
• Irit Rosenblum, Being Fruitful and Multiplying: Legal, Philosophical, Religious, and Medical Perspectives on Assisted Reproductive Technologies in Israel and Internationally, [Abstract], 36 Suffolk Transnational Law Review 627-648 (2013).
• Journal of Law and Religion, Vol. 29, Issue 1 (Feb. 2014) has recently appeared.

Hawaii Supreme Court Says Permit Requirement To Enter Reserve Did Not Infringe Free Exercise Rights

In State v. Armitage, (HI Sup. Ct., Jan. 28, 2014), the Hawaii Supreme Court held that the rights of Native Hawaiians are not infringed by a statute limiting entry into the Kaho'olawe Island Reserve only to those who obtain authorization to do so through a written application process.  Defendants claim they were traveling to the island to proclaim the right of the "Reinstated Kingdom of Hawaii" to the island. The court rejected defendants' arguments that their entry was protected by the Art. XII, Sec. 7 of the Hawaii Constitution which protects the right to engage in traditional and customary Native Hawaiian subsistence, cultural and religious practices. It also rejected their contention that the Native Hawaiian people have a fundamental right to reestablish an autonomous sovereign government. Finally the court rejected defendants' claims that their free expression and free exercise rights were infringed. The court held that the written application process required to obtain entry did not impose a substantial burden on defendants' religious exercise.

Chief Justice Recktenwald wrote a separate opinion in which Justice Nakayama joined concurring with these views, but dissenting as to an unrelated issue.

In Israel, Haifa Chief Rabbi To Be Indicted Over Payoffs In Kashrut Supervision

In Israel, prosecutors last week informed the Chief Sephardic Rabbi of the city of Haifa, Shlomo Chelouche, that he is likely to be indicted for improper conduct in his supervision of kosher food purveyors. According to Thursday's Arutz Sheva, in two instances Chelouche solicited donations to a charitable organization he heads from companies to which he was granting kashrut certificates.  In the case of one of those companies he also arranged a job for a family member. He is also accused of removing the kashrut certificate of a third company, a catering hall, to pressure it to rehire his personal secretary as their kashrut inspector after the individual had been fired. Israel's Justice Minister Tzippy Livni said that because of the charges she would move to suspend Rabbi Chelouche from his positions as Chief Rabbi and religious court judge.

Court Upholds Hawaii Law Permitting Same-Sex Marriage

A news release from Hawaii's Department of Attorney General reports that on Jan. 29 a state trial court judge upheld the constitutionality under both the state and federal constitutions of Hawaii's Marriage Equality Act of 2013:

In his ruling from the bench, Judge Sakamoto noted the importance of marriage under the federal constitution, drawing an analogy to Loving v. Virginia, the landmark United States Supreme Court case that struck down state laws banning inter-racial marriage. He concluded that the Marriage Equality Act is consistent with Article I, section 23 of the Hawaii State Constitution, and that “same-sex marriage is legal.”

Article I, Sec. 23 of Hawaii's constitution provides: "The legislature shall have the power to reserve marriage to opposite-sex couples."

Recent Prisoner Free Exercise Cases

In Daley v. Lappin, (3d Cir., Jan. 29, 2014), the 3rd Circuit vacated and remanded for the most part a decision of a Pennsylvania federal district court in a suit brought by a former federal inmate who was a Rastafarian.  The Court of Appeals held that the district court erred in rejecting plaintiff's claim for a vegan diet merely on the ground that it was not a mandatory tenet of Rastafarianism.

In Harris v. Gipson, 2014 U.S. Dist. LEXIS 9792 (ED CA, Jan. 24, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he is being denied access to an adequate religious diet.

In Hollins v. Curtin, 2014 U.S. Dist. LEXIS 10709 (WD MI, Jan. 29, 2014), a Michigan federal district court permitted a Nation of Islam inmate to move ahead with his challenge to a prison's blanket ban on group religious services for all inmates in segregation.

In Sousa v. Wegman, 2014 U.S. Dist. LEXIS 11132 (ED CA, Jan. 28, 2014), a California federal magistrate judge recommended that a Mexican Indian inmate be permitted to proceed with his complaint that prison officials refused to recognize his religion or allot him outside grounds to conduct services, burn sage and hold sweats. The court held that plaintiff's free exercise claim should not be barred by collateral estoppel, the 11th Amendment, or PLRA exhaustion.

In Washington v. Cate, 2014 U.S. Dist. LEXIS 12402 (ED CA, Jan. 31, 2014), a California federal magistrate judge dismissed a complaint by a Muslim inmate that his free exercise, equal protection and RLUIPA rights were infringed when was not permitted to have a conjugal visit to consummate his marriage that took place in a prison visiting room. Department of Corrections rules bar conjugal visits for prisoners serving life sentences.

In Martin v. Cate, 2014 U.S. Dist. LEXIS 12414 (ED CA, Jan. 31, 2014), a California federal magistrate judge recommended dismissing a complaint by a Christian inmate serving a life sentence that his free exercise and RLUIPA rights were infringed by rules denying him conjugal visits with his wife.

Texas State Board of Education Amends Textbook Review Rules To Lessen Influence of Social Conservatives

AP reports that on Friday, the 15-member Texas State Board of Education unanimously adopted new rules governing the citizen review panels that review proposed textbooks.  The rule changes are likely to lessen the influence of social conservatives who in recent years have influenced the coverage of topics such as evolution, climate change and the role of religion in American history.  The new rules give priority to teachers and professors to serve on the textbook review panels in their areas of expertise. They also allow the state board to appoint outside experts to check the objections raised by review panels. The new rules require that each textbook be reviewed by at least two panel members, require panels to submit majority and minority reports, and limit board of education contact with panel members to prevent pressure on panels. Earlier this week the board defeated a proposal that would have allowed removal of review panel members for inappropriate behavior. Conservative State Board of Education member David Bradley complained: "liberals are really trying to make it difficult for Christians and conservatives to have a voice in public education."

Montana Catholic Diocese Files For Chapter 11 Protection To Implement $17.5M Settlement of Abuse Cases

The Roman Catholic Diocese of Helena, Montana filed for Chapter 11 bankruptcy reorganization on Friday, according to NBC News. The filing comes in anticipation of a $15 million settlement for 362 victims of clergy abuse who have sued claiming that the diocese knew or should have known of the abuse that took place from the 1940's to the 1980's. Another $2.5 million will be set aside for victims who have not yet come forward. Most of the settlement will be funded by insurance carriers, but the diocese will pay at least $2.5 million additionally. The diocese covers 21 counties and parts of two others in western and north central Montana.

Bahraini Court Dissolves Islamic Scholars Council

Al Monitor reports that in Bahrain last Wednesday, the Administrative Court ordered the dissolution of the Islamic Scholars Council and liquidation of its assets. The Council includes a number of prominent Shiite scholars who support the opposition movement.  Last September, the Justice Ministry filed a lawsuit seeking liquidation of the Council, claiming that the organization was founded in 2004 in violation of law.