Free Exercise Defense Raised For Teen Charged With Attempting To Support ISIS

The Chicago Sun-Times reported yesterday that the attorney for Chicago teenager Mohammed Hamzah Khan has filed a motion to dismiss the indictment against Khan on First Amendment grounds.  The 19-year-old Khan was arrested at O'Hare Airport in October as he and his younger brother and sister were trying to travel to the Middle East to join ISIS.  He was charged with knowingly attempting to provide material support and resources to a foreign terrorist organization.  According to a long and interesting article last month in Rolling Stone on the three siblings, Khan wrote in a letter to his parents:

An Islamic State has been established, and it is thus obligatory upon every able-bodied male and female to migrate.

In his motion to the court filed last week, Khan's attorney, Thomas Anthony Durkin, argued:

While it is easy to disagree with Mr. Khan’s unpopular religious beliefs and label them misguided simplistic, or even fundamentalist, it cannot be said that [they] were not sincerely held — and that is all that must be shown.

Jury Convicts 3 In "Coerced Get" Kidnappings

In Trenton, New Jersey yesterday a federal district court jury convicted 3 of the 4 defendants on trial on kidnapping related charges growing out of alleged arrangements to abduct, beat and torture recalcitrant Jewish husbands who refused to give their civilly divorced wives a religious divorce document (get). (See prior posting.) NJ Advance Media reported that the most prominent of the defendants, 69-year old Orthodox Jewish Rabbi Mendel Epstein, was found guilty only of conspiracy to commit kidnapping.  Prosecutors charged that he arranged the kidnappings and torture in exchange for as much as $60,000.  The jury found Rabbi Jay Goldstein, who allegedly acted as the scribe for the gets guilty of conspiracy to commit kidnapping and attempted kidnapping.  Rabbi Binyamin Stimler who allegedly acted as a witness for the get was also convicted of conspiracy and attempt. David "Ari" Epstein, son of Mendel, was acquitted on all charges.  All of the defendants were acquitted on the kidnapping counts against them.  Stimler's attorney says an appeal is planned.

Court Requires NY Transit Authority To Accept Anti-Islam Ads

In American Freedom Defense Initiative v. Metropolitan Transportation Authority, (SD NY, April 21, 2015), a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The ad included a picture of a man with his face largely covered by a keffiyeh and the language "Killing Jews is worship that draws us closer to Allah.  That's his jihad.  What's yours?"  The court found a likely infringement of plaintiff's free speech rights in a designated public forum.  It rejected the MTA's argument that the ad could be refused under its standards barring ads that will incite or provoke violence, saying that the MTA had not produced evidence that it would incite imminent violence. Reuters reports on the decision.  Last month, a Pennsylvania federal district court reached a similar conclusion regarding a different anti-Islamic ad from AFDI. (See prior posting.)

Israel's Women of The Wall Score Another First

The Jerusalem Post reported Monday that at Israel's Western Wall, the feminist group Women of the Wall succeeded for the first time in reading from a full-size Torah scroll at its monthly Rosh Chodesh prayer service at the Wall.  A scuffle broke out after a male worshipper in the men's area of the Wall passed one of the Torah scrolls available for public use to the women's area in violation of worship rules promulgated by the rabbi of the Western Wall. The Forward puts Monday's event in some perspective:

For Women of the Wall, this is a double victory: Not only did they read from a proper Torah, they also drew renewed attention to Western Wall Rabbi Shlomo Rabinowitz’s 2010 ban on Torah scrolls in the women’s section. While the Wall boasts more than 100 Torah scrolls, they’re all on the men’s side, preventing women from using them and making a full women’s holiday service next to impossible. If this incident creates enough pressure to remove Rabinowitz’s ban, it will be a win for Women of the Wall.

But really, Women of the Wall won its war two years ago. For decades, the group’s prayer was prohibited, its activists were detained and arrested, and their cause became a rallying cry for liberal Judaism — especially in the United States. But that ended in April 2013 when a Jerusalem district court judge ruled that their services were, in fact, legal.

North Carolina Counties Approve Display of "In God We Trust" Signs

Christian Post reported yesterday that the  McDowell County, North Carolina Board of Commissioners last week, working with the U.S. Motto Action Committee, approved placing "In God We Trust" signs in county buildings.  Two other county commissions in North Carolina took similar action earlier this year. Local reaction to the McDowell County decision has been mixed.

North Carolina Magistrates Forced To Resign Over Same-Sex Marriage Now Seek Reinstatement

As previously reported, last October North Carolina's Administrative Office of the Courts issued a memo stating that magistrates must perform wedding ceremonies for same-sex couples who present a license in the same way they do for opposite-sex couples. The memo led a number of magistrates to resign rather than perform same-sex wedding ceremonies.  Now, according to ABC News, two of the magistrates who resigned filed a state court lawsuit earlier this month seeking reinstatement, injunctive relief, damages and attorneys' fees.  Former magistrates Gilbert Breedlove and Thomas Holland contend that their religious freedom rights were infringed by requiring them to officiate at same-sex marriages.

South African Court Awards Maintence and Child Support To Woman Divorced Only Under Islamic Law

A South African court has issued a precedent-setting ruling by awarding interim maintenance to a woman who was married and divorced under Islamic religious law, but without precedures required by South African civil law. Her husband divorced her by pronouncing a single valid talaq.   IOL News reports that in a ruling from the bench, a Durban High Court judge ruled that the cournty's Marriage Act applies.  Judge Fikile Mokgohloa awarded the woman the equivalent of $1650 (US) per month as maintenance for her and the two children and ordered the husband to pay reasonable education cost for the children not to exceed $400(US) per child per month.  The husband was also ordered to pay the equivalent of $1225(US) toward the wife's legal costs. The husband argued that under Islamic law, he was only required to pay maintenance for the wife, and then only for approximately three months (the mandatory waiting period of iddah).  The wife is now proceeding with a full civil divorce action.

Supreme Court Denies Review In RLUIPA Land Use Case

The U.S. Supreme Court today denied review in Lichtfield Historic District Commission v. Chabad Lubavitch of Litchfield County, Inc., (Docket No. 14-1001, cert. denied 4/20/2015) .(Order List). In the case, the Second Circuit Court of Appeals held that the district court had applied erroneous legal standards in deciding whether a refusal to allow a Jewish group to expand a building in Lichtfield's Historic District violates RLUIPA’s substantial burden and nondiscrimination provisions. (See prior posting.) AP reports on the Supreme Court's denial of review.

Utah Law Creates Uncertainty In Protections For County Clerks Refusing To Officiate At Same-Sex Marriages

Yesterday's Deseret News reports that in Utah, county clerks are closely examining one provision included in SB 297 titled "Protections for Religious Expression and Beliefs about Marriage, Family, or Sexuality." The law, signed by the governor last month and effective May 12, generally protects religious officials and religious organizations from being required to participate in, or furnish goods or services to, marriage ceremonies that violate their religious beliefs. (The 10th Circuit struck down Utah's ban on same-sex marriages last year. See prior posting.) SB 297 also protects individuals holding business or professional licenses from sanctions for expressing their religious views about marriage or sexuality in a nonprofessional setting. However amendments in SB 297 to Utah Code Sec. 17-20-4 for the first time require county clerks to assure a civil marriage official is available. It provides that county clerks shall

establish policies to ensure that the county clerk, or a designee of the county clerk who is willing, is available during business hours to solemnize a legal marriage for which a marriage license has been issued.

Designees do not need to be employees of the clerk's office.  It can be anyone in the county.  According to the Deseret News:

 Offering couples a list of designees seems to be the route many county clerks are going, though the definition of "designee" might be open to interpretation.

Some county officials believe it would allow them to delegate a person of their choosing such as a family member or friend to perform the ceremony on a one-time basis, something county clerks could do until the Legislature took that authority from them 10 years ago.

But that also raises the possibility that if a grandfather, for example, were designated to marry his granddaughter and her fiancé, he would be obligated to marry any couple who asks from then on.   

Recent Articles of Interest

From SSRN:

• Tadeusz Kugler, State-Sponsored Religion as Impediment To Assimilation and Immigration: A Look at Europe, (In Narratives and Negotiation: Agency, Religion and the State, edited by Autumn Quezada-Grant and Sargon Donabed. New York, NY: Lexington Books, 2015).
• Doulas Laycock & Thomas C. Berg, Brief of Douglas Laycock, Thomas Berg, David Blankenhorn, Marie Failinger, and Edward Gaffney as Amici Curiae in Support of Petitioners in Same-Sex Marriage Cases (Obergefell v. Hodges etc.), (April 12, 2015).
• Lucia Ann Silecchia, The Call to Stewardship: A Catholic Perspective on Environmental Responsibility, (Chapter 17 of American Law from a Catholic Perspective, Edited by Ronald J. Rychlak, 2015).
• Robert A. Kahn, The Overlapping of Fools? Drawing the Line between Anti-Semitism and Anti-Zionism in Wake of the 2014 Gaza Protests, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 15-11, 2015).
• Pamela Foohey, Secured Credit in Religious Institutions' Reorganizations, (2015 U Ill L Rev Slip Opinions 1).
• Daniel Ortner, The Terrorist's Veto: Why the First Amendment Must Protect Provocative Portrayals of the Prophet Muhammad, (April 8, 2015).
• J. Stephen Clark, But for Sex: Equal Protection and the Individual Opportunity to Marry One's Chosen Partner Without Regard to Sex, (South Dakota Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Robin Fretwell Wilson, When Governments Insulate Dissenters From Social Change: What Hobby Lobby and Abortion Conscience Clauses Teach About Specific Exemptions,48 UC Davis Law Review 703-790 (2014).
• Is Religion Outdated (As A Constitutional Category)?, Introduction by Steven D. Smith and Larry Alexander; articles by Christopher J. Eberle, Stanley Fish, William A. Galston, Larry Alexander, Frederick Mark Gedicks, Micah Schwartzman, Maimon Schwarzschild and Winnifred Fallers Sullivan; reply by Andrew Koppelman. 51 San Diego L. Rev. 971-1142 (2014). 
• Tengku Ahmad Hazri, Constitutional Governance and the Future of Islamic Civilisation, Islam and Civilisational Renewal (from Academia.edu).

NYT Op-Ed On Increased Ban On Cattle Slaughter In India

Today's New York Times carries an interesting Opinion piece by University of Maryland Mathematics Professor Manil Suri criticizing steps taken last month by the Indian state of Maharashtra (which includes Mumbai) to expand the ban on slaughter of cows. The ban was extended to slaughter of bulls and oxen and the sale of beef was made punishable by up to five years in prison. He says in part:

The laws have affected more than just restaurants. Thousands of butchers and vendors, their livelihood abruptly suspended, have protested in Mumbai. The leather industry is in turmoil. Beef is consumed not only by Indian Muslims and Christians, but also by many low-caste Hindus, for whom it is an essential source of affordable protein. The poorest waste nothing, from beef innards to coagulated blood, while their religion pragmatically turns a blind eye. Low-caste Dalit Hindu students, and others, have organized beef-eating festivals to protest the infringement on their culture and identity.

With the recent re-criminalization of gay sex, bans on controversial books and films and even an injunction against the use of the colonial-era name “Bombay” instead of “Mumbai” in a Bollywood song, the new laws join a growing list of restrictions on personal freedom in India. Already, the police in the city of Malegaon have arrested three Muslim men accused of calf slaughter, and ordered livestock owners to submit mug shots of cows and bulls to a cattle registry, to create a record in case any of them go missing.

Recent Prisoner Free Exercise Cases

In Adams v. Scott, 2015 U.S. Dist. LEXIS 47928 (CD IL, April 10, 015), an Illinois federal district court permitted five non-denominational civil detainees to move ahead with their complaint that their RLUIPA and free exercise rights were infringed by refusal to create non-denominational religious services and by a policy that requires them to declare an affiliation with a denomination in order to attend services.

In Prim v. Jackson, 2015 U.S. Dist. LEXIS 48970 (SD OH, April 14, 2015), an Ohio federal magistrate judge recommended dismissing a number of complaints by an inmate, including his request that Natsarim be recognized as a subcategory under the Messianic Jewish faith and access to religious instructional videos.  However he recommended that plaintiff be permitted to proceed to an evdentiary hearing on his request for a preliminary injunction regarding Sabbath services, recognition of plaintiff's religious calendar, sack meals on Friday night for the Sabbath and retaliation for filing grievances.

In Clark v. Davis, 2015 U.S. Dist. LEXIS 4975 (ND CA, April 15, 2015), a California federal district court allowed a Messianic Jewish death row in mate to proceed with his challenge to a policy that limits his access to clergy.

In Masas v. Conte, 2015 U.S. Dist. LEXIS 50009 (ND NY, April 16, 2015) a New York federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 50527, March 25, 2015) and dismissed for failure to exhaust administrative remedies an inmate's complaint that correction officers threatened to assault him if he did not shave his beard that he wore because of his Muslim religious faith.

In Gomez v. Chill, 2015 U.S. Dist. LEXIS 50800 (SD NY, April 17, 2015), a New York federal magistrate judge recommended on various procedural and substantive grounds dismissing the complaint by a Messianic Jewish inmate that he was denied kosher food and the right to attend Jewish religious services.

In Moore v. Hartley, 2015 U.S. Dist. LEXIS 50904 (D CO, April 17, 2015), a Colorado federal district court dismissed an inmate's complaint that while at a private correctional re-entry center his free exercise, RLUIPA and Establishment Clause rights were infringed by the requirement that each morning, inmates stand and recite the correctional center's "Credo", "Attitude", and "Choices."

Cranston Schools Go Back To Calendar With Religious Holdiays Off

As previously reported, this current year the Cranston, Rhode Island School Committee changed their traditional calendar that had school off for Rosh Hashanah, Yom Kippur and Good Friday. This generated a lawsuit by teachers who, under the revised policy, did not qualify for taking Good Friday off with pay.  On Friday, the Providence Journal reported that the Cranston School Committee has now decided to reinstate its traditional policy. It adopted a 2015-16 school calendar that again has Rosh Hashanah, Yom Kippur and Good Friday as school holidays.

Suit Filed Over Sale of Lower East Side Synagogue To Developer

The New York Post reported on April 10 that congregants at the Home of the Sages synagogue of the Ger Hasidic sect on New York City's Lower East Side are suing to invalidate the $13 million sale of their building to developer Peter Fine.  $10 million from the sale will be used to build a Ger synagogue in Israel, while the other $3 million will go to the synagogue's president, Rabbi Samuel Ashkenazi. The April 16 Jewish Business News has more on the story:

[S]ince the synagogue is a non-profit a court must sign off its sale. The sale price is well below market value for the area which set off a lot of red flags.... The synagogue allegedly had a member meeting to pass this deal — even though the ‘members’ were people from Queens who had never stepped foot in the synagogue to worship there.”...

Now here’s where things get complicated. Rabbi Ashkenazi has also been accused by ... [the congregants' lawyer] of using funds from the sale to in effect pay himself $45,000 a year to lease space in his Queens home to the congregation. Apparently, Ashkenazi’s wife was the one who signed the new lease with the synagogue.

In another strange twist the judge, Arthur Engoron, who was set to preside over the preliminary court hearing in New York yesterday, recused himself from the case without saying why.

RLUIPA Lawsuit Settled By California City

The Long Beach Press Telegram reports that the Bellflower, California city council agreed last Monday to settle a RLUIPA lawsuit filed against it by Glory Tabernacle Christian Center, a church that welcomes members of the LGBT community.  The church claims discrimination. The city refused to issue it a use permit because of insufficient parking, even though a similar requirement was not imposed on a nearby mortuary and fire museum.  The city will grant the church a permit to hold Sunday services for up to 150 people and hold week day meetings for up to 50 people.  It will also pay the church $1.775 million in damages. If Council approves the use permit at its May meeting, the church will dismiss its suit 90 days later and notify the Justice Department of the settlement.

Evangelist Blocked From Festival Sues

St. Paul Pioneer Press reports on a lawsuit filed April 3 by the Center for Religious Expression (press release) on behalf of evangelist David Miller who was prevented by police from preaching at the 2014 Irish Fair-- an annual event on the Mississippi River near downtown St. Paul.  Miller and a group of friends, wearing expressive T-shirts, were about to enter the fair grounds to preach and hand out literature when they were told by police that the Irish Fair had a special-event permit, so it could make the rules (including banning protests). The lawsuit contends that the total ban on preaching at the festival being held on public property violates Miller's free speech rights.

Tennessee Senate Kills Bill To Make Bible the Official State Book

According to The Tennessean, the Tennessee state Senate yesterday effectively killed the controversial bill, passed by the House a day earlier, that would have made the Bible the state's official book. The Senate voted 22-9 to send the bill back to the Judiciary Committee for study in light of the state attorney general's opinion concluding that the bill was unconstitutional. (See prior posting.) Republican Senate Majority Leader Mark Norris, who led the effort to send the bill back to committee, said:

All I know is that I hear Satan snickering. He loves this kind of mischief. You just dumb the good book down far enough to make it whatever it takes to make it a state symbol, and you're on your way to where he wants you.

 Lt. Gov. Ron Ramsey, another critic of the bill, said:

We don't need to put the Bible beside salamanders, tulip poplars and 'Rocky Top' in the Tennessee Blue Book to appreciate its importance to our state.

[Thanks to Blog From the Capital for the lead.] 

Justice Alito Stays 3rd Circuit's Non-Profit Contraceptive Mandate Decision

Late on Wednesday, U.S. Supreme Court Justice Samuel Alito issued an order (full text) temporarily staying the Third Circuit's mandate in Zubik v. Buwell. In the case, the 3rd Circuit upheld the Obama Administration's rules accommodating the Affordable Care Act contraceptive coverage mandate to religious non-profits. (See prior posting.)  Religious non-profits contend that the accommodation is inadequate. A response by the government is due to Justice Alito by April 20.  The 3rd Circuit opinion covered four separate lawsuits involving a variety of claimants, both for-profit and non-profit.  Justice Alito's order applies only to two of the cases that involve the Catholic Diocese of Erie and the Catholic Diocese of Pittsburgh along with affiliated charities and schools in the two dioceses. National Law Journal reports on the decision.

Over 140 Amicus Briefs Filed In Upcoming SCOTUS Same-Sex Marriage Cases

Oral arguments before the U.S. Supreme Cout in the same-sex marriage cases are scheduled for April 28.  The Court has received over 140 amicus briefs in the cases-- with slightly more supporting petitioners than respondents.  Links to the full text of almost all the amicus briefs are available here from SCOTUSblog.

Tennessee AG Says Bill To Make Bible the State Book Is Unconstitutional; House Passes It Anyway

On Monday, Tennessee Attorney General Herbert Slatery issued Opinion No. 15-34 concluding that pending Tennessee legislation that would designate The Holy Bible as the official state book violates the federal Establishment Clause as well as Tennessee  Constitution Art. I, Sec. 3 barring preference to any religious establishment or mode of worship. The Opinion says in part:

Irrespective of the legislation’s actual purpose, common sense compels the conclusion that designation of the Bible as the official state book in practice and effect conveys a message of endorsement.

AP reported that following the issuance of the AG's Opinion, Tuesday saw "a sometimes raucous floor debate" on HB615/ SB1108, with the bill's sponsor arguing that it does not violate the Establishment Clause. On Tuesday, the House adopted an amendment (full text) to the bill setting out in a preamble over a dozen secular justifications for naming the Bible as the state book. Here are two of them:

WHEREAS, printing the Bible is a multimillion dollar industry for the state with many top Bible publishers headquartered in Nashville, including Thomas Nelson, Gideons International, and United Methodist Publishing House;...

WHEREAS, the tulip poplar was chosen as the state tree because, according to the Blue Book, “it grows from one end of the state to the other” and was “extensively used by the pioneers of the state” for practical purposes such as the construction of “houses, barns, and other necessary farm buildings”, similar to how the Holy Bible is found in homes across the state and has been “used” for practical purposes such as recording family histories; 

On Wednesday, the Tennessee House of Representatives passed the bill as amended by a vote of 55-38, and sent it to the Senate for its consideration. [Thanks to Tom Rutledge for the lead].