State Department Releases 2014 International Religious Freedom Report

Yesterday the U.S. State Department released its International Religious Freedom Report for 2014.  The Report details the state of religious freedom in each of nearly 200 countries. Each country report contains 4 sections: religious demography; status of government respect for religious freedom; status of societal respect for religious freedom; and U.S. government policy.

Both Secretary of State John Kerry (full text) and Ambassador-at-Large for International Religious Freedom David Saperstein (full text) delivered remarks at a news conference announcing the release. Ambassador Saperstein summarized the report's findings:

A number of trend lines stood out in this year’s report. The first one ... is the single greatest challenge to religious freedom worldwide, or certainly the single greatest emerging challenge, and that is the abhorrent acts of terror committed by those who falsely claim the mantle of religion to justify their wanton destruction.

In both Iraq and Syria, Daesh has sought to eliminate anyone daring to deviate from its own violent and destructive interpretation of Islam.... Similarly, Boko Haram has killed thousands in both indiscriminate violence and deliberate attacks on Christians and Muslims who oppose its radical ideology. It has subjected the peoples of Nigeria, Cameroon, Chad, Niger, to unspeakable acts of terror, sexual violence, abductions, and fatal attacks on places of worship.

Secondly, the impact of blasphemy laws and apostasy laws in countries including Pakistan, Saudi Arabia, Egypt, Sudan, and in a number of others – as well as laws that purport to protect religious sentiments from offense.... The existence of such laws has been used in some countries as pretext to justify violence in the name of religion to create an atmosphere of impunity for those resorting to violence and/or leads to false claims of blasphemy.

Third, repressive governments routinely subject their citizens to violence, detention, discrimination, undue surveillance, for simply exercising their faith or identifying with a religious community. We see this dramatized by the plight of countless numbers of prisoners of conscience..... Many governments have used the guise of confronting terrorism or extremism to broadly repress religious groups for nonviolent religious activities, or by imposing broad restrictions on religious life.

Catholic Orphanages In India End Adoption Services In Protest Over New Government Policies

Catholic Review and CNS reported this week that in India, the Missionaries of Charity-- a religious order that operates orphanages across the country-- will no longer offer children for adoption because of its disagreement with new government adoption guidelines.  The organization, founded by Mother Teresa, is asking the government to remove recognition of the 18 of its orphanages that have operated as adoption centers.  Traditionally they have allowed adoption only by married couples.  At issue are guidelines from the federal Ministry of Women and Child Development adopted in July that now require adoption centers to allow adoption by single individuals, apparently including unmarried adults in same-sex relationships, couples living together, and individuals who are divorced or separated. (Under the guidelines, single men  can only adopt boys.)  The Catholic order also objects that potential adoptive parents will be allowed to review the files of up to six children rather than taking the best match as determined by orphanage officials. The new government guidelines are designed to increase the number of adoptions.

Canadian Judge Scolds "Pastafarian" Suing Over Drivers' License Photo

Canada's National Post reported this week on the unfriendly reception given by a Canadian judge to a woman who belongs to the Church of the Flying Spaghetti Monster who argued that she should be able to wear a colander or a pirate's hat in her drivers' license photo. Isabelle Narayana sued when the Société de l’assurance automobile du Québec told her that only medical or religious exceptions were allowed to the requirement that her photo be taken bareheaded.  Narayana argued that she should have the same right as Muslim women to wear a head covering, and later showed up wearing a headscarf that she said was the costume of a female pirate who happened to be Muslim.  The license bureau took her photo wearing the headscarf and issued her license.  However she insisted on litigating. A Montreal Superior Court judge ruled that her suit was moot since she was issued a license and admonished her:

Too many people implicated in real litigation with consequences that could affect their lives or those of their children or enterprise are waiting their turn in court for us to be silent about the monopolization of these resources to determine if the plaintiff can be photographed wearing a colander or pirate hat.  We forget too often that the courts are a public service with limited resources that must not be abused.

Appeals Court Affirms Archdiocese's Right To Close Local Church

In Roman Catholic Archbishop of Boston v. Rogers, (MA App., Oct. 14, 2015), the Appeals Court of Massachusetts affirmed the trial court's entry of an injunction against former parishioners of Frances X. Cabrini Church in Scituate. (See prior posting.) The Archdiocese had announced plans to close the church and deconsecrate it.  Parishioners who object to those plans have conducted a 24-hour vigil in the church building for over ten years.  The court affirmed the trial court's findings that the parishioners are intentionally trespassing in the church which, under principles of secular law, is owned by the Archdiocese. The court refused to consider defendant's claim that they are equitable owners of the church under canon law.  Boston Globe reports on the decision. [Thanks to Tom Rutledge for the lead.]

3rd Circuit: Challenge To NYPD Muslim Surveillance Program May Move Forward

Yesterday the U.S. 3rd Circuit Court of Appeals in Hassan v. City of New York, (3d Cir., Oct. 13, 2015), reversed a New Jersey federal district court (see prior posting) and held that Muslim plaintiffs adequately stated free exercise and equal protection claims challenging the NYPD's Muslim surveillance program. Summarizing its holding, the court in an opinion by Judge Ambro said:

In its narrowest form, this appeal raises two questions: Do Plaintiffs—themselves allegedly subject to a discriminatory surveillance program—have standing to sue in federal court to vindicate their religious-liberty and equal protection rights? If so, ..., have they stated valid claims under the First and Fourteenth Amendments to our Constitution? Both of these questions, which we answer yes, seem straightforward enough. Lurking beneath the surface however, are questions about equality, religious liberty, the role of courts in safeguarding our Constitution, and the protection of our civil liberties and rights equally during wartime and in peace.

In concluding that plaintiffs have standing, the court said in part:

The City ... argues that Plaintiffs have suffered no injury-in-fact because it has not overtly condemned the Muslim religion.... This argument does not stand the test of time. Our Nation’s history teaches the uncomfortable lesson that those not on discrimination’s receiving end can all too easily gloss over the “badge of inferiority” inflicted by unequal treatment itself. Closing our eyes to the real and ascertainable harms of discrimination inevitably leads to morning-after regret.

Reflecting on history's lessons, the court said:

What occurs here in one guise is not new. We have been down similar roads before. Jewish-Americans during the Red Scare, African-Americans during the Civil Rights Movement, and Japanese-Americans during World War II are examples that readily spring to mind. We are left to wonder why we cannot see with foresight what we see so clearly with hindsight—that “[l]oyalty is a matter of the heart and mind[,] not race, creed, or color...

Judge Roth filed a short concurring opinion on the issue of level of scrutiny that should be applied.  She said in part:

I differ from the majority in its failure to determine whether “intermediate scrutiny” or “strict scrutiny” applies here....

In my opinion, “intermediate scrutiny” is appropriate here. I say this because “intermediate scrutiny” is the level applied in gender discrimination cases. I have the immutable characteristic of being a woman. I am happy with this condition, but during my 80 years on this earth, it has caused me at times to suffer gender discrimination. My remedy now for any future gender discrimination would be reviewed with“intermediate scrutiny.” For that reason, I cannot endorse a level of scrutiny in other types of discrimination cases that would be stricter than the level which would apply to discrimination against me as a woman.

AP reports on the decision.

Court Upholds Military Reprimand To Enlistee For Objecting To Same-Sex Wedding

In Wilson v. James, (D DC, Oct. 13, 2015), the D.C. federal district court dismissed RFRA, 1st and 5th Amendment and various other challenges by an enlisted member of the Utah Air National Guard to letters of reprimand he received for his opposition to a same-sex wedding ceremony held at West Point's chapel.

After reading about the wedding ceremony, Layne Wilson, a Mormon, sent an e-mail using his military account to a major whom he believed to be the chaplain at the U.S. Military Academy, saying in part: "Our base chapels are a place of worship and this [is] a mockery to God and our military core values." His commander issued a letter of reprimand for this, which led to Wilson to rebuke his commander on Facebook, posting: "You embarrass me, our country, and our unit!!!...." That led to a second letter of reprimand and suspension of Wilson's security clearance. Wilson sued, bringing, in the court's words, "a bevy of claims." Rejecting Wilson's RFRA claim, the court said in part:

A substantial burden on one’s religious beliefs—as distinct from such a burden on one’s exercise of religious beliefs—does not violate RFRA....

Admittedly, the First LOR likely chilled Plaintiff’s speech regarding his religious beliefs, especially within the military setting. But nowhere does Plaintiff assert that LDS doctrine requires him to publicly voice his dissent about homosexuality or same-sex marriage.... Plaintiff only contends that, under LDS doctrine, homosexuality is a sin.... His religious belief, however, does not become a protected religious exercise under RFRA simply because Plaintiff expressed it through speech.

Rejecting Wilson's free speech claim, the court held:

An email from an enlisted member of the military that protests the decision of a senior military official outside the sender’s chain of command and urges that official to reverse his decision receives no First Amendment protection.

Judicial Ethics Complaint Cites Alabama Justice's Remarks On Same-Sex Marriage Precedent

The Southern Poverty Law Center yesterday filed an ethics complaint (full text) with the Judicial Inquiry Commission of Alabama alleging that Alabama Supreme Court Justice Tom Parker violated the state's Code of Judicial Ethics when, in a radio interview, he suggested that the Alabama Supreme Court defy the U.S. Supreme Court's Obergefell decision legalizing same-sex marriage. As summarized by an SPLC press release:

The complaint cites comments made by Parker during an Oct. 6 radio show, “Focal Point,” hosted by Bryan Fischer of the American Family Association. Fischer has used his radio show to promote outrageous, denigrating claims about LGBT people, Muslims, Native Americans and African Americans.

In the interview, Parker not only discussed a marriage equality case pending before the Alabama Supreme Court – Ex parte State v. King – he voiced his personal opinion about the case and suggested that Alabama should defy the U.S. Supreme Court decision legalizing same-sex marriage in order to lead to a “revival of what we need in this country.”

Thailand Bans Movie Critical of Buddhist Monks

Al Jazeera today reports that Thailand's culture ministry has banned Arbat, a new horror film about Buddhist monks. The title translates as "violations committed by monks."  Somchai Surachatri, spokesman for Thailand's National Office of Buddhism, said: "The movie has some scenes that will destroy Buddhism. If it is shown, people's faith in Buddhism will deteriorate," The film's producer says it will change some parts of the movie before resubmitting it for approval. Thailand's monks have come under increasing criticism in recent years for their embrace of commercialism.

European Court Says Christian Proselytizer's Rights Infringed By Broadcast Documentary

The European Court of Human Rights today in a Chamber Judgment in Bremner v. Turkey (ECHR, Oct. 13, 2015) (full text of decision in French) held that Dion Bremner, an Australian newspaper correspondent and Christian bookstore employee, had his rights violated by a Turkish television station which broadcast a documentary about his Christian proselytizing.  The producers of the broadcast alerted police and criminal charges of insulting God and Islam were brought against Bremner,  He was ultimately acquitted, Bremner then sued the television producer and presenter, and on appeal the European Court found he was entitled to damages.  As summarized by the European Court's press release on the decision, the Court:

held, unanimously, that there had been: a violation of Article 8 (right to respect for private life) of the European Convention on Human Rights. The case concerned the broadcasting of a television documentary in which the applicant, Mr, Bremner, who was shown promoting his evangelical Christian beliefs, was described as a “foreign pedlar of religion” engaged in covert activities in Turkey. The Court found in particular that the broadcasting of Mr Bremner’s image without blurring it could not be regarded as a contribution to any debate of general interest for society, regardless of the degree of public interest in the question of religious proselytising.

[Thanks to Paul de Mello for the lead.]

Obama Reflects On Christianity

The New York Review of Books (Nov. 5 issue) published a conversation between President Obama and prize-winning author Marilynne Robinson which included this exchange on religion:

The President: ... [O]ne of the points that you’ve made in one of your most recent essays is that there was a time in which at least reformed Christianity in Europe was very much “the other.” And part of our system of government was based on us rejecting an exclusive, inclusive—or an exclusive and tightly controlled sense of who is part of the community and who is not, in favor of a more expansive one.

Tell me a little bit about how your interest in Christianity converges with your concerns about democracy.

Robinson: Well, I believe that people are images of God. There’s no alternative that is theologically respectable to treating people in terms of that understanding.... 

The President: But you’ve struggled with the fact that here in the United States, sometimes Christian interpretation seems to posit an “us versus them,” and those are sometimes the loudest voices. But sometimes I think you also get frustrated with kind of the wishy-washy, more liberal versions where anything goes.

Robinson: Yes.

The President: How do you reconcile the idea of faith being really important to you and you caring a lot about taking faith seriously with the fact that, at least in our democracy and our civic discourse, it seems as if folks who take religion the most seriously sometimes are also those who are suspicious of those not like them?

Pregnancy Centers Sue To Enjoin California's New Mandatory Disclosure Law

Last Friday, California Governor Jerry Brown signed into law AB 775 , the Reproductive FACT Act which requires reproductive health clinics to disseminate a notice to all clients stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services, prenatal care, and abortion, for eligible women.  On Saturday, the Pacific Justice Institute (press release) on behalf of two religiously affiliated non-profit pregnancy counseling centers filed a lawsuit seeking to enjoin enforcement of the new law.  The complaint (full text) in A Woman's Friend Pregnancy Resource Center v. Harris, (ED CA, filed 10/10/2015) contends that the new law infringes plaintiffs' free speech and free exercise rights by mandating speech inconsistent with their religious convictions.  The Sacramento Bee reports on the lawsuit.

Charges Against Sikh Teen For Wearing Kirpan Dropped

Last week, a New York state trial court judge in Queens dropped criminal charges against a 17-year old Sikh high school student who had been arrested for wearing his kirpan (ceremonial dagger).  According to Sikh24, Virender Singh was arrested and charged with two counts of criminal possession of a weapon in the 4th degree while he was walking to a Gurdwara to offer evening prayers. However at his hearing, prosecutors conceded that charges should be dropped.

Proposed Montana Rules Will Exclude Religious Schools From Tax Credit Program

Last month, the Montana Department of Revenue issued proposed rules (full text) to implement the state's recently-enacted School Contributions Tax Credit law (full text) (background).  Under the law, a state income tax credit of up to $150 is available for contributions to student scholarship organizations that provide scholarships for students at a "qualified educational provider."  One of the proposed new rules would precluded religious schools from participation in the program.  Proposed Rule I provides:

(1) A "qualified education provider" has the meaning given in 15-30-3102, MCA, and pursuant to 15-30-3101, MCA, may not be:

(a) a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination; or

(b) an individual who is employed by a church, school, academy, seminary, college, university, literary or scientific institution, or any other sectarian institution owned or controlled in whole or in part by any church, religious sect, or denomination when providing those services.

(2) For the purposes of (1), "controlled in whole or in part by a church, religious sect, or denomination" includes accreditation by a faith-based organization

A hearing on the proposed rules will be held on Nov. 5. Written comments on the proposed rules may be submitted until Nov. 17.  Montana Watchdog raises constitutional questions about the exclusion of religiously sponsored educational institutions.

Marine Base Will Not Remove Sign Calling For God's Blessing

AP reported yesterday that the commander of the Marine corps base on Oahu, Hawaii has rejected a call by the Military Religious Freedom Foundation that the military move or take down a sign put up after 9-11 which reads: "God bless the military, their families and the civilians who work with them." MRFF head Mikey Weinstein says the group represents 72 marines on the base, and wants the sign removed or moved to the grounds of the base chapel.  Alternatively Weinstein proposes that other signs be put up alongside this one, reading, for example, "Goddess bless...."  MRFF says that the current sign violates the Establishment Clause.

Recent Articles of Interest

From SSRN:

• Anthony Michael Kreis, Marriage Demosprudence, (University of Illinois Law Review, Forthcoming).
• Jeff Berryman, Intersections of Canadian Common Law Doctrine and the New Multiculturalism, (March 1, 2014).
• Richard W. Garnett, The Freedom of the Church: (Toward) an Exposition, Translation, and Defense, (Micah Schwartzman, Chad Flands, and Zoe Robinson, eds., The Rise of Corporate Religious Liberty (Oxford University Press, 2015), Forthcoming).
• Ram Rivlin, Religious Norms between Ethics and Law: The Death and Afterlife of Jewish Divorce Law, (Oxford Journal of Law and Religion 2015, Forthcoming).
• Gila Stopler, Biopolitics and Reproductive Justice: Fertility Policies between Women's Rights and State and Community Interests, (18(2) University of Pennsylvania Journal of Law and Social Change, 169-207 (2015)).
• Greg Taylor, Austria's Law Against Defamation of Religion: A Case Study, (Journal of Law and Religion, Vol. 30, No. 1, 2015).
• Ruth Lapidoth, Jerusalem and the Peace Process, (October 7, 2015).
• Patrick Parkinson, Can Marriage Survive Secularization?, (University of Illinois Law Review, 2015, Forthcoming).
• Catherine Powell, Up from Marriage: Freedom, Solitude, and Individual Autonomy in the Shadow of Marriage Equality, (84 Fordham Law Review 69 (2015)).

From SmartCILP:

• David L. Faigman, Where Law and Science (and Religion?) Meet, 93 Texas Law Review 1659-1679 (2015).
• Mark Strasser, Old Wine, Old Bottles, and Not Very New Corks: On State RFRAs and Free Exercise Jurisprudence, 34 St. Louis University Public Law Review 335-366 (2015).
• Allan W. Vestal, The Lingering Bigotry of State Constitution Religious Tests, 15 University of Maryland Journal of Race, Religion, Gender & Class 55-120 (2015).
• John Witte, Jr., Why Two In One Flesh? The Western Case for Monogamy Over Polygamy, 64 Emory Law Journal 1675-1746 (2015).
• Symposium. Religious Accommodation in the Age of Civil Rights. Foreword by Martha Minow; articles by Mary Anne Case, Richard W. Garnett, Malick W. Ghachem, Michael A. Helfand, John D. Inazu, Andrew Koppelman, Melissa Murray, Steven D. Smith and Nomi Maya Stolzenberg. 88 Southern California Law Review 453-767 (2015).

Promissory Estoppel May Prevent Christian Camp From Firing Employee For Living With Her Boyfriend

Trehar v. Brightway Center, Inc.,, (OH App., Oct. 2, 2015), is a suit by a former employee of a Christian youth sports camp who was fired for moving in with with her boyfriend.  Plaintiff Jennifer Trehar whose job involved writing grant proposals and engaging in various sorts of promotional work was told in a letter from the camp's board: "We simply cannot reconcile our affections and appreciation for you with our belief that living together outside marriage is forbidden by the Scriptures."  In a unanimous decision the appeals court reversed the trial  court's grant of summary judgment to the camp, finding that Trehar sould be able to move ahead with her claim of promissory estoppel:

Griffin is Brightway’s president and CEO. He stated that his employees should rely on his statements and promises. In construing the evidence in Trehar’s favor, reasonable people could conclude that Trehar’s boss and the president of the company induced Trehar to believe that no adverse employment action would result from her move.

Columbus Dispatch reports on the decision.

Recent Prisoner Free Exercise Cases

In Christian Separatist Church Societyy of Ohio v. Ohio Department of Rehabilitation & Corrections, 2015 U.S. Dist. LEXIS 134125 (SD OH, Oct. 1, 2015), an Ohio federal magistrate judge recommended allowing various individual inmates to proceed with their complaint that by having only one recognized Protestant organization, prison officials have infringed their free exercise rights under the 1st Amendment and RLUIPA. Plaintiffs claim their separatist beliefs are theologically distinct and inimical to those of the recognized group. However the church itself lacks standing to bring a RLUIPA claim. Various other claims were also recommended for dismissal.

In Aragon v. Erlanger, 2015 U.S. Dist. LEXIS 134656 (D CO, Oct. 1, 2015), a Colorado federal district court adopted in part a magistrate's recommendation (2015 U.S. Dist. LEXIS 96185, July 23, 2015), a Colorado federal district court dismissed complaints by a Messianic Jewish inmate regarding the preparation of kosher food and date for observing Passover.

In Etterson v. Newcome, 2015 U.S. Dist. LEXIS 135670 (ED VA,Oct. 5, 2015). a Virginia federal district court allowed a former inmate to move ahead with his 1st Amendment damages claim for having been wrongly taken off the Ramadan menu.

In Ishmael v. Oregon Department of Corrections, 2015 U.S. Dist. LEXIS 136071 (D. OR, Oct. 6, 2015), an Oregon federal district court dismissed a suit by an African Hebrew Israelite of Jerusalem inmate who complained that he was not allowed to use his religious name on mail and correspondence.

In Holmes v. Godinez, 2015 U.S. Dist. LEXIS 137388 (ND IL, Oct. 8, 2015), an Illinois federal district court allowed inmates to move ahead with a class action complaining, among other things, that the free exercise and RLUIPA rights of hearing impaired inmates are infringed by inadequate accommodation at religious services.

In Barrett v. Peters, 2015 Ore. App. LEXIS 1203 (OR App., Oct. 7, 2015), an Oregon appellate court allowed an Oregon inmate incarcerated in Florida under the Interstate Corrections Compact to move ahead with his habeas corpus action complaining that he is not allowed to wear the "Celtic tonsure" hair style required by his Glefiosa religion in violation of the Oregon Constitution.

Al-Queda Executes 4 For Witchcraft In Yemen

Al Jazeera reports that in the town of Mayfaa in southeastern Yemen, Al-Queda today distributed and posted flyers saying that the group has killed four local men suspected of witchcraft and sorcery. The handout says in part:

We have implemented Allah's ruling against them, which is the death sentence,  We call upon all Muslims to cooperate with us against this widespread depravity,

Al-Queda controls this area in Yemen.

Federal Prisons Will No Longer Serve Pork Products

The Washington Post reported yesterday that federal Bureau of Prisons is removing all pork products from its national menu for federal inmates. Pork producers are distressed at the decision that was based on a survey of inmates' food preferences, as well as on cost factors.However Ibrahim Hooper, a spokesman for the Council on American-Islamic Relations, predicted that the decision "will stoke the fires of Islamophobia based on the usual conspiracy theories." [Thanks to David Orinoff for the lead.]

Anti-Muslim Rallies Planned In U.S. Cities This Weekend

TPM reports that anti-Muslim rallies may be held this weekend in 20 or more U.S. cities.  The rallies, organized through a Facebook page called "Global Rally for Humanity," were timed to coincide with the 20th anniversary of the Washington, D.C. Million Man March. According to TPM:

 "Global Rally for Humanity" appears to have ties to John Ritzheimer, who rose to prominence among anti-Muslim activists when he organized a protest and "Draw Mohammad" contest in May in Phoenix. Known for his bizarre antics, he recently attracted the attention of U.S. Capitol Police when he vowed in an open letter to arrest Sen. Debbie Stabenow (D-MI) over her support for the Iranian nuclear deal.

Detroit Free Press reports on the rally planned in the heavily Muslim city of Dearborn, Michigan. The Facebook page for the Dearborn rally says that the organizers are open gun carry advocates, and it urges individuals to bring firearms to the rally. The rally is planned near Dearborn city hall after organizers did not file soon enough to get a permit to demonstrate outside the Islamic Center of America, a large Dearborn mosque.

CAIR issued a statement this week reading in part: "Many of these planned rallies may not take place, or they may consist of only a handful of people shouting slurs at worshipers. But given the recent endorsement of Islamophobia by national public figures, it would only be prudent for mosque and community leaders to prepare for any eventuality." In a second statement later in the week, CAIR asked all presidential candidates to repudiate the hate rallies and urged them to visit a mosque the weekend to show moral support for the Muslim community.