Egyptian Appeals Court Imposes Jail Sentence On Teacher For Allegedly Insulting Islam

In Egypt on Sunday, a appellate court sentenced a 23-year old Coptic Christian elementary school teacher to 6 months in jail for insulting Islam.  According to Arutz Sheva, the head of the parents' association at a Luxor school filed a complaint last May against teacher Demiana Emad claiming that she told her students that the late Coptic pope Shenuda III was better than the Prophet Mohammed. However an Egyptian civil rights group says she only presented a lesson in comparative religion. A trial court had imposed a fine equivalent to approximately $14,000 (US) on the teacher.  Both she and the state appealed, and the appellate court imposed the heavier sentence. Apparently an additional appeal can still be filed.

Obama Moves Toward Executive Order To End LGBT Discrimination By Federal Contractors

According to The Hill, a White House official announced yesterday that "the President has directed his staff to prepare for his signature an Executive Order that prohibits federal contractors from discriminating on the basis of sexual orientation or gender identity."  No specific date for signing the executive order was announced, apparently in the hope that the House of Representatives will take up the Senate-passed Employment Non-Discrimination Act (ENDA) which would extended LGBT non-discrimination protection to all workers. However this seems unlikely in the face of opposition by House Speaker John Boehner who says that ENDA would cost jobs by creating frivolous law suits.

Man Charged After He Destroys Statue of Jesus For Religious Reasons

Yesterday's Charleston Post and Courier reports on the arrest last Sunday of 38-year old Charles Jeffrey Short for malicious injury to real property after he hammered off the head of a statue of Jesus that stands near a Charleston, South Carolina Catholic church. Short says he was making a religious statement. He told police he battered the statue with a sledge hammer "because the second or first commandment states to not make an image of a male or female to be on display to the public." Police are investigating whether Short was also involved in a similar incident last Friday in which a head and two hands were broken off another statue depicting Jesus and a child that stands at the same church.

SCOTUS Review Denied Over Interesting Dissent In Challenge To School Graduations In Churches

The U.S. Supreme Court today denied certiorari in Elmbrook School District v. John Doe 3, (Docket No. 12-755, cert. denied 6/16/2014), but with an unusual opinion dissenting to the denial of review, written by Justice Scalia and joined by Justice Thomas. (Order List, [scroll to end for opinion]). In the case, the 7th Circuit, in a 7-3 en banc decision, held that two Wisconsin high schools violated the Establishment Clause when they regularly held their graduation ceremonies in the sanctuary of a non-denominational evangelical Christian church. (See prior posting.)

Justice Scalia's dissent focuses largely on the Supreme Court's decision earlier this term in Town of Greece, reading that opinion more broadly than many commentators have so far done. Justice Scalia implicitly sees Town of Greece as impacting more than just invocations before legislative bodies, and says almost nothing about the special concern that the Court has shown historically for religious activities in public schools.  He begins his dissent with this summary:

Some there are-- many perhaps-- who are offended by public displays of religion.... I can understand that attitude: It parallels mine toward the playing in public of rock music or Stravinsky. And I too am especially annoyed when the intrusion upon my inner peace occurs while I am part of a captive audience, as on a municipal bus or in the waiting room of a public agency.

My own aversion cannot be imposed by law because of the First Amendment.

Justice Scalia then goes on to argue first that Town of Greece abandons the "endorsement test" under the Establishment Clause, and that, second, it requires coercion amounting to more than mere offense to show an Establishment Clause violation. Lastly he emphasizes that the Establishment Clause should be interpreted according to historical practices and understandings, a consideration absent from the 7th Circuit's majority opinion. [Thanks to Marty Lederman via Rellgionlaw for the lead.]

North Carolina County Seeks Lifting of Injunction After Town of Greece Decision

The Winston-Salem Journal reported last week that Forsyth County, North Carolina is asking a federal district court to lift a 2010 injunction that barred it from continuing a policy of opening County Board of Commissioners meetings with prayers that are repeatedly Christian. The 4th Circuit had affirmed the issuance of the injunction. (See prior posting.) Last week's motion comes in light of the Supreme Court's recent decision in Town of Greece permitting a neutral policy that nevertheless results in primarily Christian invocations opening legislative bodies. Here is Forsyth County's brief in support of its motion to lift the injunction.  ADF issued a press release announcing the filing of the motion.

Recent Articles of Interest

From SSRN:

• Valerie J. Munson, Fraud on the Faithful? The Charitable Intentions of Members of Religious Congregations and the Peculiar Body of Law Governing Religious Property in the United States, (Rutgers Law Journal Vol. 44, No. 3, 2014).
• Bruce Ledewitz, Experimenting with Religious Liberty: The Quasi-Constitutional Status of Religious Exemptions, 6 Elon Law Review (2014).
• Kevin P. Lee, Emanuel Levinas on Hegel's Antigone: Levinas and the Problem of Modernity, (May 30, 2014). 
• Sara L. Ainsworth, Amicus Curiae Brief: Stormans, Inc. v. Selecky, (Hastings Women's Law Journal, Vol. 24, No. 2, pp. 303-37, Summer 2013).
• Tabatha Abu El-Haj, All Assemble: Order and Disorder in Law, Politics, and Culture, (University of Pennsylvania Journal of Constitutional Law, Vol. 16, No. 4, 2014 Forthcoming).
• Seema Mohapatra, Time to Lift the Veil of Inequality in Health Care Coverage: Using Corporate Law to Defend the Affordable Care Act, (May 23, 2014).
• Alice E. Marwick & Ross W. Miller, Online Harassment, Defamation, and Hateful Speech: A Primer of the Legal Landscape, (Fordham Center on Law and Information Policy Report No. 2, June 10, 2014).
• Nancy J. Knauer, Navigating a Post-Windsor World: The Promise and Limits of Marriage Equality, (Georgetown Journal of Gender and the Law, Vol. 16, 2014, Forthcoming).

From SSRN (Islamic law):

• Hussein Elasrag, Corporate Governance in Islamic Financial Institutions, (May 26, 2014).
• Muhammad Munir, Rights of Children in Islamic Law: A Review of Selected Literature, (May 29, 2014).
• Timur Kuran, Institutional Roots of Authoritarian Rule in the Middle East: Civic Legacies of the Islamic Waqf, (Economic Research Initiatives at Duke (ERID) Working Paper No. 171, June 12, 2014).

From SmartCILP:

• Julie Maher, Eweida and Others: A New Era for Article 9?, 63 International & Comparative Law Quarterly 213-233 (2014).

Hearing Discloses Developments In Reformation of FLDS Land Trust

On Friday, a Utah state trial court held a one-and-a-half hour hearing in the state's 9-year long effort to reform the United Effort Plan Trust.  The Trust holds property of the polygamous FLDS Church in the sect's twin towns of Hilldale, Utah and Colorado City, Ariz.  AP and Fox13 report that a number of developments were revealed at the hearing. Judge Denise Lindberg urged the court-appointed trustee to begin evicting residents who have been ignoring the $100-per month housing fee for as long as 7 years. Collectively over $4.18 million in back fees is owed. During the hearing, Utah Attorney General Sean Reyes urged the court to appoint a board to take over redistribution of the 750 homes owned by the Trust.  Judge Lindberg said that she has chosen seven people for the board, but will not set it up until fees are being paid so the trust will have a stable source of revenue, and until liability insurance can be obtained for board members. It was also announced that former-FLDS member Willie Jessop has agreed with the court-appointed trustee to cooperate with investigations and litigation in exchange for receiving land.  In yet another development, the Arizona Attorney General's office told the court that it plans to file papers today to dismantle the Hildale/ Colorado City Town Marshal’s Office.

Court Rejects Claims Against Diocese By Victim of Clergy Sexual Abuse

In John Doe v. Corporation of the Catholic Bishop of Yakima, (ED WA, June 12, 2014), a Washington federal district court  dismissed negligent supervision and negligent infliction of emotional distress claims against the Diocese of Yakima brought by the victim of an incident of sexual abuse perpetrated by a deacon that occurred when the victim was 17 years old. While finding that the suit was not barred by the statute of limitations, the court held that no special relationship existed between the diocese and plaintiff, and the diocese had no reason to believe that the deacon posed a risk of inappropriate sexual conduct. National Catholic Reporter reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Conrad, (8th Cir., June 2, 2014), the 8th Circuit upheld the dismissal of an inmate's complaint that he was denied permission to receive two religious publications sent to him through the mail. He failed to show that the denial substantially burdened his ability to practice his religion.

In Davis v. Abercrombie, 2014 U.S. Dist. LEXIS 74934 (D HI, June 2, 2014), a Hawaii federal district court refused to reconsider its prior denial of summary judgment to defendants on Native Hawaiian inmates' complaints that they were denied daily outdoor group worship; and were denied daily access to amulets and bamboo nose flutes. However reconsideration was granted as to inmates' lack of access to certain other sacred items. The court also dismissed certain claims for prospective equitable relief as moot.

In Porter v. Biter, 2014 U.S. Dist. LEXIS 77476 (ED CA, June 4, 2014), a California federal magistrate judge dismissed, with leave to amend, a Muslim inmate's attempt to obtain an order allowing him to change his legal name to a religious name and to use the religious name during normal prison activities such as sending and receiving mail.

In Cole v. Danberg, 2014 U.S. Dist. LEXIS 77773 (D DE, June 6, 2014), a Delaware federal district court permitted a Muslim inmate to proceed with many of his claims for injunctive relief growing out of alleged religious discrimination, denial of right to observe Islamic holidays and have congregational prayer, and refusal to allow the Islamic community to raise funds.

In Schlemm v. Frank, 2014 U.S. Dist. LEXIS 78601 (WD WI, June 10, 2014), a Wisconsin federal district court dismissed, partly on exhaustion and partly on substantive grounds, a complaint by a Native American inmate seeking sweat lodge ceremonies on a weekly basis, a Ghost Feast meal that includes wild game, and the right to wear multicolor headbands. a ribbon shirt, bear-claw jewelry and a personal pipe.

In Lindsey v. Bradley, 2014 U.S. Dist. LEXIS 78856 (SD IL, June 9, 2014), an Illinois federal district court permitted a Rastafarian inmate to proceed with his complaint that his dreadlocks were forcibly cut.

In Davis v. Hubler, 2014 U.S. Dist. LEXIS 78835 (ED NC, June 10, 2014), a North Carolina federal district court dismissed a complaint by a Nation of Islam inmate that he was not permitted to receive the weekly publication Final Call.

In Glenn v. Wilson, 2014 U.S. Dist. LEXIS 79303 (ND IN, June 10, 2014), an Indiana federal district court dismissed a complaint by an Eastern Orthodox inmate that he was unable to attend Eastern Orthodox religious services first when he was placed in administrative segregation and then when he was transferred to a prison without Orthodox services.

Sudan Apostasy Case Draws U.S. Attention As Appeal Begins

Zegabi reports that in Khartoum, Sudan last week an Appeals Court hearing began in the case of 27-year old Meriam Yehya Ibrahim Ishag who was sentenced to death last month for maintaining her Christian faith, as well as to 100 lashes for adultery. Ishag's's father was a Muslim; so she is considered Muslim under Sudan's personal status law and her marriage to her Christian husband is considered void. (See prior posting.)  Meanwhile the case is garnering extensive attention in the United States.  On June 12, a group of demonstrators representing 46 organizations held a protest outside the White House.  Among the protesters were Sen. Ted Cruz who later told Christian Post:

We need far more leadership speaking out for religious liberty of everyone. And especially for Christians who are being targeted.... The reason this rally and protest is outside the White House is President Obama has to date failed to provide leadership on Meriam Ibrahim.

On the same day, Secretary of State John Kerry issued a statement (full text) calling on Sudan to release Ms. Ishag and to repeal its laws that are inconsistent with its 2005 Interim Constitution, the Universal Declaration of Human Rights, and the International Covenant on Civil and Political Rights.

Suit Claims Church's Publicity On Muslim's Conversion Led To His Torture and Near Death In Syria

In Tulsa, Oklahoma, a John Doe plaintiff has filed a state court lawsuit seeking $75,000 in punitive damages against the First Presbyterian Church of Tulsa for publishing an online announcement of his December 2012 conversion from Islam to Christianity.  The complaint (full text) in Doe v. First Presbyterian Church U.S.A. of Tulsa, Oklahoma, (OK Dist. Ct., filed 6/9/2014), alleges that plaintiff travels periodically to Syria, and the church knew that any publicity about his baptism would pose a danger to his life. He says that when he was in Syria in January 2013, he was kidnapped, tortured and nearly beheaded before he escaped by forcibly taking a firearm from his captors and killing one of them who was his paternal uncle. He alleges he has received numerous death threats since returning to the United States.

Oklahoma's NewsOn6 and Tulsa Channel 8 report on the lawsuit and quote a statement in response released by the church which says in part: "The lawsuit is brought by a person who received the Sacrament of Baptism before the Congregation during a regular Sunday service at First Church." This appears to contradict the allegation in plaintiff's complaint that he received a "private baptism" at the church.

Facebook Not Liable For Delay In Removing Page Containing Anti-Jewish Threats

In Klayman v. Zuckerberg, (DC Cir., June 13, 2014), the U.S. Court of Appeals for the D.C. Circuit dismissed a suit against Facebook and its founder Mark Zuckerberg alleging assault and breach of duty of care growing out of Facebook's delay in removing a page titled "Third Palestinian Intifada."  The page proclaimed: "Judgment Day will be brought upon us only once Muslims have killed all the Jews." The suit alleged that it took Facebook "many days" after receiving complaints to remove the offending page.  Plaintiff sought an injunction and damages exceeding $1 billion.  The court held that Sec. 230(c) of the Communications Act (47 USC Sec. 230) shields Facebook from liability. That section provides:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

Order Stayed By Court After Enjoining Wisconsin's Same-Sex Marriage Ban

As previously reported, on June 6 a Wisconsin federal district court declared Wisconsin's constitutional and statutory provisions barring same-sex marriage unconstitutional and instructed the parties to submit proposed language for an injunction. Now in Wolf v. Walker, (WD WI, June 13, 2014), the court issued a carefully worded injunction against the governor, state registrar and three county clerks. However the court also stayed the injunction, as well as its earlier declaratory judgment, until the conclusion of any appeals or after the expiration of the deadline for filing appeals.  Judge Crabb wrote in part:

If I were considering these factors as a matter of a first impression, I would be inclined to agree with plaintiffs that defendants have not shown that they are entitled to a stay. However, I cannot ignore the Supreme Court’s order in Herbert v. Kitchen, 134 S. Ct. 893 (2014), in which the Court stayed a district court’s order enjoining state officials in Utah from enforcing its ban on same-sex marriage.....  [S]ince Herbert, every statewide order enjoining the enforcement of a ban on same-sex marriage has been stayed, either by the district court or the court of appeals, at least when the state requested a stay.....

It is true that the Supreme Court declined to issue a stay in a more recent case in which a district court in Oregon enjoined enforcement of that state’s ban on same-sex marriage. National Organization for Marriage v. Geiger .... (June 4, 2014). However, that order is not instructive because the district court’s injunction was not opposed by the state; rather, a nonparty had requested the stay. Thus, I do not interpret Geiger as undermining the Court’s order in Herbert.

Yesterday's Milwaukee Journal-Sentinel reports on the decision.

De Blasio's Universal Kindergarten Church-State Rules Unsatisfactory To Both Sides

In New York City, Mayor Bill de Blasio has created a free, full-day pre-kindergarten program, offered in part through community-based organizations, as a major initiative. (Implementation Plan.) Hamodia reported last month that the mayor has made a number of concessions in order to attract Orthodox Jewish schools to participate in the program. The New York Daily News reported yesterday that the New York Civil Liberties Union is concerned that some of these cross the church-state separation line:

Guidance provided to religious schools by city officials in May allows them to screen potential teachers based on their religion “to the extent permitted by law,” use religious texts “when presented objectively” and give lessons in other languages such as Yiddish and Hebrew.

Nevertheless, according to The Forward yesterday a number of ultra-Orthodox schools may opt not to participate in the program.  They are particularly concerned about the ban on staff leading blessings after meals, and about the length of the required school day which will make it difficult to add hours for religious instruction at the beginning or end of the school day. Regulations for a similar program offered by New York state outside of New York City are more flexible, and some New York City Jewish schools are looking at whether they can apply to this program instead.

European Court Faults Russia For Dissolving Pentecostal Church

In Biblical Centre of the Chuvash Republic v. Russia, (ECHR 1st Section, June 12, 2014), the European Court of Human Rights in a Chamber Judgment held that Russia violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) interpreted in light of Art. 11 (freedom of assembly and association) when it ordered dissolution of a Pentecostal religious organization.  In a press release, the Court summarized the facts:

The applicant is a Russian religious organisation, the Biblical Centre of the Evangelical (Pentecostal) Christians of the Chuvash Republic. Belonging to the Pentecostal movement of the Christian faith, it was registered as a religious organisation in November 1991, founding a Biblical college and Sunday school in 1996. However, following inspections of the Biblical Centre in April and May 2007, the domestic courts ruled against the applicant organisation in two sets of administrative proceedings for allowing the Centre to conduct educational activities without authorisation and for violating sanitary rules and hygienic requirements. On that basis, the Supreme Court upheld the prosecuting authorities’ claim to dissolve the applicant organisation in August 2007 and, following the dismissal of the organisation’s appeal in October 2007, it was dissolved with immediate effect.

In its decision, the Court held:

the domestic authorities have not shown that the dissolution, which undermined the very substance of the applicant organisation’s rights to freedom of religion and association, was the only option for the fulfilment of the aims they pursued.

An ACLJ press release reports on the decision.

Christian-Themed Park Turns Down State Economic Grant After Church-State Complaints

In Sioux City, Iowa, developers of a Christian-themed park have decided to turn down a $140,000 state economic development grant after objections were raised by the Freedom From Religion Foundation.  AP reported this week that developers of Shepherd's Garden do not want to be in the middle of lawsuits over the park. While the park is to include a stone path with Bible verses, and prayer spaces, the funding from the state organization, Vision Iowa, was not to go to religious elements of the park.  A member of the park's board said that FFRF's objections stimulated enough private donors to pay for the project.

Consent Decree Entered In Suit Over Devotional Exercises In School

The American Humanist Association yesterday announced the entry of a consent decree which settles its lawsuit against a Missouri school district.  AHA sued the district over devotional exercises held before the beginning of school in the classroom of a teacher who is adviser to the Christian student group. (See prior posting.) The consent decree (full text) in American Humanist Association v. Fayette R-III School District, (WD MO, May 19, 2014) requires the school district to amend its Student-Teacher Handbook in various ways and provides other relief.  As summarized in AHA's press release:

In the consent decree agreed upon by the parties, the school is permanently enjoined from promoting prayer and religious activity, and religious clubs will be given no special privileges that other clubs do not enjoy. The school district also agreed to amend its announcement policies so that they will not identify any religious activities taking place at student group meetings. Also, faculty sponsors of student groups will not be permitted to participate in religious activities of the groups. School employees will also no longer be allowed to keep religious materials in places in open view.

European Court Upholds Spain's Dismissal of Priest As Public School Teacher

In Martinez v. Spain, (ECHR, June 12, 2014), the Grand Chamber of the European Court of Human Rights, in a 9-8 decision, held that there had not been a violation of a Catholic priest's rights under Art. 8 of the European Convention on Human Rights when he was not renewed as teacher of Catholic religion and ethics in a State secondary school in Spain.  Art. 8 deals with respect for private and family life.

The priest, Fr. Jose Martinez, was ordained in 1961.  He applied for a dispensation from celibacy in 1984, but when he did not receive a response by the following year he married in a civil ceremony. He and his wife had 5 children.  Martinez taught in a state high school from 1991 until 1997 when the Vatican granted his dispensation from celibacy, but at the same time ruled that he could no longer teach religion in a state school unless the local bishop decided otherwise. The Vatican's ruling obligated his removal from his position in the state school pursuant to an agreement between Spain and the Holy See. This ruling followed publication of an article in a Spanish newspaper about the "Movement for Optional Celibacy of Priests" in which Martinez was an active member. The article, illustrated with a picture of Martinez and his family, quoted members' views on abortion, divorce, sexuality and contraception which were contrary to those of the Church.

The court said in part:

the applicant ... must have been aware, in accepting the task of teaching Catholic religion, of the potential consequences of the heightened duty of loyalty vis-à-vis the Catholic Church by which he thus became bound, for the purpose, in particular, of preserving the credibility of his teaching....

Focusing on the Church's rights of autonomy, the court said:

the right of believers to freedom of religion encompasses the expectation that they will be allowed to associate freely, without arbitrary State intervention. The autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection which Article 9 of the Convention affords.

Four separate dissenting opinions were also filed. The Court also issued a press release summarizing the 65 pages of decisions. The Becket Fund issued a press release on the decision applauding the vindication of church autonomy and criticizing the dissent by Judge Dedov that strongly takes issue with the Catholic Church's rules on celibacy for priests.

Groups Ask Holder To Withdraw Memo Allowing Religious Hiring Preferences In Federal Grant Programs

This week, 90 religious, educational, civil rights, labor, LGBT, women’s, and health groups signed a joint letter (full text) to Attorney General Eric Holder asking that the Office of Legal Counsel withdraw the Bush Administration's June 29,  2007 memo allowing faith-based organization that receive federal grant funds to give a preference to co-religionists in hiring. That memo concluded that RFRA overrides the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act (see prior posting). However, according this week's joint letter, the OLC memo has been applied to other grant programs as well, including most recently to grants under the Violence Against Women Act.  A Department of Justice  Frequently Asked Questions memo dated April 9, 2014 says that the non-discrimination grant provision in the Violence Against Women Reauthorization Act of 2013 does not apply to hiring of co-religionists by faith-based organizations where the funded program is an exercise of religion, foregoing a religious preference in hiring would be a substantial burden, and the funding agency cannot show a compelling interest furthered by the least restrictive means.  This week's letter argues:

RFRA should not be interpreted or employed as a tool for broadly overriding statutory protections against religious discrimination or to create a broad free exercise right to receive government grants without complying with applicable regulations that protect taxpayers.

[Thanks to Michael Lieberman for the lead.]

British Supreme Court: Civil Courts May Decide Religious Doctrine To Settle Legal Disputes

In Shergill & Ors v Khaira & Ors, (UK Sup. Ct., June 11, 2014) the United Kingdom Supreme Court held that British courts should not treat religious disputes as non-justiciable "where the determination of the dispute is necessary in order to decide a matter of disputed legal right...."  The case involves a dispute over who are the proper trustees in three Sikh temples and the powers which trustees may exercise.  The Supreme Court held in part:

... courts do not adjudicate on the truth of religious beliefs or on the validity of particular rites. But where a claimant asks the court to enforce private rights and obligations which depend on religious issues, the judge may have to determine such religious issues as are capable of objective ascertainment. The court addresses questions of religious belief and practice where its jurisdiction is invoked either to enforce the contractual rights of members of a community against other members or its governing body or to ensure that property held on trust is used for the purposes of the trust....

... the court may have to adjudicate upon matters of religious doctrine and practice in order to determine who are the trustees entitled to administer the trusts. Subject to further amendment of the parties’ cases, the question whether Sant Jeet Singh has power to appoint and dismiss trustees may depend on issues such as (i) what are the fundamental tenets of the First Holy Saint and the Nirmal sect, (ii) what is the nature of the institution at Nirmal Kutia in India, (iii) what steps or formalities were needed for a person to become the successor of the First Holy Saint, and (iv) in relation to the fourth issue whether the teachings and personal qualities of Sant Jeet Singh comply with the fundamental religious aims and purposes of the trust....

[Thanks to Law & Religion UK for the lead.]