NYT Investigates Religious Arbitration

The New York Times is running a series of investigative stories on the extent to which arbitration agreements are forcing individuals out of the court system into often defendant-friendly alternative dispute resolution processes.  Today's installment is titled In Religious Arbitration, Scripture Is the Rule of Law. Here is an excerpt:

For generations, religious tribunals have been used in the United States to settle family disputes and spiritual debates. But through arbitration, religion is being used to sort out secular problems like claims of financial fraud and wrongful death.

Customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Carolina Cabin Rentals, which rents high-end vacation properties in the Blue Ridge Mountains of North Carolina, tells its customers that disputes may be resolved according to biblical principles. The same goes for contestants in a fishing tournament in Hawaii.....

By adding a religious component, companies are taking the privatization of justice a step further. Proponents of religious arbitration said the process allowed people of faith to work out problems using shared values, achieving not just a settlement but often reconciliation.

Yet some lawyers and plaintiffs said that for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.

Villanova Creates New Center for Law and Religion

Villanova University School of Law yesterday announced the creation of its new Center for Law and Religion endowed by a $2 million gift from Joseph and Eleanor McCullen. The Center will sponsor innovative courses, conferences and seminars on emerging advocacy issues in law and religion. The new Center is now listed in the Religion Clause sidebar under "Academic Centers."

USCIRF Urges Secretary Kerry To Raise Religious Freedom Issues With Tajikistan

U.S. Secretary of State John Kerry is currently on a trip to various countries in Europe and Central Asia.  In anticipation of his arrival in Tajikistan today, the U.S. Commission on International Religious Freedom issued a press release yesterday strongly criticizing Tajikistan's "ongoing efforts to  control religious activity" and urged Secretary Kerry to raise religious freedom concerns with officials in Tajikistan.  USCIRF said in part:

The legal environment for religious freedom in Tajikistan has deteriorated recently, largely to the implementation of the 2009 religion law which: establishes onerous registration requirements for all religious groups; criminalizes all unregistered religious activity as well as private religious education and proselytism; requires official permission for religious groups to provide religious instruction and communicate with foreign co-religionists; and imposes state controls over the content, publication, and import of all religious materials.

The Tajik government imposes additional restrictions on Muslims such as: limiting the number and size of mosques; closing hundreds of unregistered mosques and prayer rooms; and demolishing three unregistered mosques in Dushanbe. The Tajik government pays imams’ salaries in the largest mosques and restricts the preaching of sermons to these mosques.  Muslim prayer officially is allowed only in mosques, cemeteries, homes, and shrines. As of October 2015, Tajik authorities reportedly are prohibiting government employees from attending Friday prayers.

Studies Estimate Costs To U.S. Catholic Church of Sex Scandals Are In the Billions of Dollars

The National Catholic Reporter yesterday published the results of its extensive research into the cost of the sex-abuse crisis to the Catholic Church in the United States.  In the most extensive review yet from numerous sources, the publication concluded that since 1950 the Church has paid out at least $3.99 billion in judgments and settlements, and in expenses for therapy for victims, support for offenders, attorneys' fees, child protection efforts and related costs.  And it is known that this total is low because data is not available as to certain related expenditures.

Meanwhile another study published in the Journal of Public Economics and also reported on yesterday by the National Catholic Reporter concludes that the more than 3000 scandals in Catholic dioceses around the U.S. between 1980 and 2010 has led to a decline in charitable giving to the Church and other charities of billions of dollars.  As summarized by NCR:

"The estimates suggest that each scandal caused a decline of 1.3% in the total itemized charitable giving in the affected zip code per year," Harvard-trained economist Perez-Truglia explained in an email. "Multiplying that 1.3% by the total itemized giving in the zip codes affected by the 3,000+ scandals results in a decline in itemized contributions of about $1.77 billion per year.

"But that number does not include the effect on non-itemized contributions," which account for 25 percent of all giving, according to Perez-Truglia, who is a postdoctoral researcher at Microsoft Research. "Assuming that the effect for non-itemizers is similar to the effect found for itemizers, the total cost in charitable contributions would be $2.36 billion per year."

Anti-Westboro Baptist Church Protesters Challenge City Ordinance Used Against Them

In Topeka, Kansas yesterday, Four members of the Journey 4 Justice motorcycle group pleaded not guilty in Topeka Municipal Court to the misdemeanor charge of "picketing of religious events" of the Westboro Baptist Church.  As reported by the Topeka Capital-Journal, the motorcycle group has placed themselves outside the Westboro Baptist Church for several years.  They use an American flag to shield passers-by from Westboro's well-known signs that are virulently anti-gay and which predict the country's doom.  Topeka's Municipal Code Sec. 9-45-140 bans "focused picketing" on the public street, sidewalk or other public space around a house of worship during a worship service or other religious event.  The ordinance defines "focused picketing" to include "walking in a repeated manner past or around a house of worship ... while carrying a banner, placard, or sign."  The motorcyclists want to challenge police interpretation of the ordinance. Police claim that an American flag is a "banner" under the law.  The cyclists also say that Westboro's closed service should not be included as a "worship service" under the law.  Their trial was set for December 7. The cyclists say if the judge agrees with the police, they will move their protest to private property across the street from the church.  Apparently the group is not currently represented by counsel in the case.

Forest Service Tells Interior To Cancel Leases On Sacred Blackfoot Land

Acting under the National Historic Preservation Act, last week Secretary of Agriculture Thomas Vilsack recommended in a letter (full text) to Interior Secretary Sally Jewell that 18 oil and gas leases on sacred Blackfoot Indian land in Montana be cancelled.  As reported by AP, drilling suspensions on the land have been in effect since the 1980's.  The leases are on land in the Badger-Two Medicine Traditional Cultural District located on the Lewis and Clark National Forest. The U.S. Forest Service is part of the Department of Agriculture.  One of the lease holders has sued challenging as unreasonable the 29-year delay in reviewing the lease suspension.  Last month in Solenex, LLC v. Jewell, (D DC, Oct. 8, 2015), the D.C. federal district court ordered the government to notify the court by November 23 whether it plans to cancel or lift the suspension of the lease.

UPDATE: On Nov. 28, AP reported that the Interior Department accepted the recommendation and plans to cancel a 6,200 acre lease to Solenex.  Counsel for Solenex says if the lease is cancelled, the company is entitled to compensation.

State Taxpayers May Not Intervene In Religious Theme Park's Suit Against State Officials

In Ark Encounter, LLC v. Stewart, (ED KY, Oct. 30, 2015), a Kentucky federal district court refused to permit four Kentucky taxpayers to intervene as defendants in a lawsuit by promoters of a Noah's Ark theme park who are suing Kentucky officials for refusing to grant the park sales tax rebate incentives designed to promote tourism.  The promoters plan to build a full-size replica of Noah's Ark which they say will attract hundreds of thousands of visitors. The state countered that the project has evolved into a project to promote a literal reading of the Biblical book of Genesis. The promoters say their exclusion amounts to viewpoint-based discrimination. (See prior posting.)

The intervenors are taxpayers who strongly oppose use of tax funds to promote a religious ministry and wish to enforce provisions of the Kentucky constitution that bar use of funds for that purpose. However, the district court was unconvinced, saying:

the Court is deeply concerned that too permissive a standard for intervention would allow any Kentucky taxpayer to intervene in nearly any suit involving the administration of the state’s tax laws.

The court went on to find:

The proposed intervenors have not identified how the Commonwealth’s interest in upholding the Kentucky Constitution differs from theirs such that the Commonwealth cannot represent their interests in the constitutional use of Kentucky residents’ tax dollars....

The court however did permit the proposed intervenors instead to file an amicus memorandum setting forth their arguments.

Recent Articles and Books of Interest

From SSRN:

• Anna Su, Judging Religious Sincerity, (August 21, 2015).
• Ruth Colker, Religious Accommodations for County Clerks?, (Ohio State Law Journal Furthermore, Vol. 76, 2015).
• Robert A. Katz, Indiana’s Flawed Religious Freedom Law, (49 Indiana L. Rev 37 (2015)).
• Mary Leary, Religion and Human Trafficking, (CUA Columbus School of Law Legal Studies Research Paper No. 2015-8).
• Michael Harper, Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court, (Boston University Law Review, Vol. 96, 2016, Forthcoming).
• Joseph Benjamin Landau, Roberts, Kennedy, and the Subtle Differences that Matter in Obergefell, (Fordham Law Review, Vol. 84, No. 101, 2015).
• Clare Huntington, Obergefell's Conservatism: Reifying Familial Fronts, (Fordham Law Review, Vol. 84, No. 23, 2015).
• Elizabeth B. Cooper, The Power of Dignity, (Fordham Law Review, Vol. 84, No. 3, 2015).
• R. A. Lenhardt, Marriage as Black Citizenship?, (Hastings Law Journal, Vol. 66, No. 101, 2015).

From SmartCILP:

• Joshua D. Hawley, Return to Political Theology, 90 Notre Dame Law Review 1631-1662 (2015).
• Mark Strasser, The Protection of Conscience: On ACA, RFRA and Free Exercise Guarantees, [Abstract], 82 Tennessee Law Review 345-404 (2015).
• Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, [Abstract], 26 Yale Journal of Law & Feminism 217-241 (2014).

Recent Books:

• Samuel Moyn, Christian Human Rights, (Univ. of Pennsylvania Press, Sept. 2015), reviewed at Mirror of Justice.
• Mark A. Smith, Secular Faith: How Culture Has Trumped Religion in American Politics, (Univ. of Chicago Press, Sept. 2015).

Female Bishops In UK's House of Lords Will Carry Title "Lord Bishop"

Law & Religion UK reports that last Monday as Rachel Treweek, the most senior female Bishop in the Church of England, was sworn in as a member of the House of Lords, the leader of the House of Lords ruled that she will nevertheless be referred to as "The Lord Bishop." The Church of England and the Crown Office have agreed that all Bishops in the House of Lords will be referred to in this way. Thus last Monday's Hansard refers to her as "Rachel, Lord Bishop of Gloucester." [corrected]

Recent Prisoner Free Exercise Cases

In Johnson v. Pritchard, 2015 U.S. Dist. LEXIS 144822 (MD TN, Oct. 26, 2015), a Tennessee federal magistrate judge recommended concluding that a Muslim inmate's exercise of religion was not substantially burdened when he was denied a special food tray at the Eid ul-Fitr feast because he could not afford to pay for it.

In Brame v. Vaughn, 2015 U.S. Dist. LEXIS 146113 (SD IL, Oct. 28, 2015), an Illinois federal district court permitted an inmate to move ahead with his claim that the prison chaplain refused to add him to the Passover Commemoration and refused his request for a kosher diet, in retaliation for plaintiff's previous filing of a lawsuit.

In Tucker v. Livingston, 2015 U.S. Dist. LEXIS 146482 (ED TX, Oct. 28, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 146731, Oct. 7, 2015) and dismissed an inmate's complaint that authorities did not permit members of Nation of Gods and Earth to congregate separately for religious services. The court found that this is the least restrictive means of preventing NOGE from spreading their supremacist views that promote hate crimes and violence.

In Hunter v. Corrections Corporation of America, 2015 U.S. Dist. LEXIS 147643 (SD GA, Oct. 30, 2015), a Georgia federal magistrate judge ordered defendant to provide a more adequate response in discovery to an inmate's request for admission that defendant forces plaintiff to participate in Christianity through mandatory group sessions.

In Cejas v. Brown, 2015 U.S. Dist. LEXIS 147695 (SD CA, Oct. 30, 2015), a California federal district court permitted a Buddhist inmate to move ahead with his claim that he has not been provided adequate accommodations to properly practice his faith, including access to a chaplain.

In Yah'Torah v. Hicks, 2015 U.S. Dist. LEXIS 147755 (D NJ, Oct. 29, 2015), a New Jersey federal district court dismissed a pre-trial detainee's complaint regarding restrictions on reordering fragrant oils for religious purposes, finding that plaintiff had not shown a sincerely held religious belief.

More Stabbings In Bangladesh Of Those Involved In Criticizing Islam

Last February in Bangladesh, the Bangladeshi-American blogger Avijit Roy was hacked to death in an attack by an Islamist group that objected to his secularist postings on science, religion and LGBT issues on his blog. (See prior posting.) Now, according to the New York Times, earlier today in Dhaka assailants entered the offices of Jagriti Publications which had published Avjit Roy's book"The Virus of Faith" and stabbed to death publisher Faisal Arefin Dipan.  Around the same time, several men entered the Shuddhashar publishing house and attacked Ahmed Rahim Tutul who had previously received death threats over books he had published, including one of Roy's. Tutul is in critical condition.  They also attacked two other men who were in the office with Tutul. One of those is Sudip Kumar Barman, a blogger who (under the name Ranadipam Basu) had posted on Roy's website. According to CNN, Al-Qaeda in the Indian Subcontinent (AQIS) claimed responsibility for the assaults, saying that the victims had made derogatory remarks about Islam. In Bangladesh, "hit lists" of secular writers have been circulating on the Internet.

Pakistan's Supreme Court Warns Against False Blasphemy Allegations

Earlier this week, Pakistan's Supreme Court published the opinion of its 3-judge panel which earlier this month upheld the death sentence that had been imposed on Mumtaz Qadri, a former elite force guard who in 2011 killed Salmaan Taseer, governor of Punjab Province.  Qadri acted because of Taseer's support for a pardon for Aasia Bibi, a Christian woman who had been sentenced to death for blasphemy. (See prior posting.)  The court used the opinion in Qadri v. State, (Sup. Ct. Pakistan, Oct. 7, 2015), to warn about the dangers of false blasphemy charges-- a significant problem in Pakistan.  The Court said in part.

In the following paragraphs of this judgment it shall be highlighted as to how the accused person in this case had acted on the basis of nothing but hearsay without getting his information ascertained, verified or investigated and, as Almighty Allah has warned, he has brought harm not only to another person but also to himself. Verily, such are the consequences when Almighty Allah’s warnings or commands are not heeded to....

Commission of blasphemy is abhorrent and immoral besides being a manifestation of intolerance but at the same time a false allegation regarding commission of such an offence is equally detestable besides being culpable. If our religion of Islam comes down heavily upon commission of blasphemy then Islam is also very tough against those who level false allegations of a crime. It is, therefore, for the State of the Islamic Republic of Pakistan to ensure that no innocent person is compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence.

The Guardian reports on the decision.

Indian Judge Concerned Over Water Pollution From Immersing of Idols

According to NDTV, in India a Justice on the Madras High Court is concerned that the traditional religious practice of immersing idols in bodies of water is having detrimental environmental effects.  At a bail hearing yesterday growing out of a clash at last month's Vinayaka Chaturthi idol immersion festival, Justice S Vaidyanathan commented:

On account of the immersion, materials like clay, bamboo, grass, wood, metals, jute, colours, painted cloth, flowers, incense sticks, dhoop, camphor and ash are released into water bodies..... It is not rational, prudent and judicious to pollute an already scarce commodity. This illiterate attitude towards water should be put to an end.

He suggested that artificial ponds might be built just for use during the festival season.

Washington Football Coach Is Latest Focus In Battle Over Prayer At School Activities

An AP report yesterday focused on Bremerton, Washington, High School assistant football coach Joe Kennedy who is quickly becoming the latest focus in the ongoing battle over prayer at public school events.  Kennedy has been praying mid-field at the end of the game since 2008, but his actions have not become a cause for controversy until last month. Needless to say, Kennedy and school officials have starkly differing narratives.

Kennedy's lawyers, the Liberty Institute, say that Kennedy is merely engaging in a personal faith practice, in which he has often been voluntarily joined by a majority of his team, other coaches and the opposing team. The school district, however, says that coaches still have duties after the game is over, and permitting Kennedy to engage in a public religious display in the midst of his duties would amount to district endorsement of religion. He has now been placed on paid administrative leave. The school district says it has offered to accommodate Kennedy by providing him a private location for him to use to pray in a way that does not interfere with his duties.  Kennedy's lawyer responds: "When it comes to religious freedom in the country, that's never been the law, that you can have religious expression, but you have to hide it somewhere." (Bremerton Patriot.)  Apparently Kennedy plans to sue claiming a denial of religious accommodation.

Meanwhile, others are getting into the act.  In October, the Freedom From Religion Foundation sent a letter to the Bremerton superintendent supporting the school district's position. (Press release.) As reported by the Christian Post, 47 members of Congress this week signed a letter (full text) supporting Kennedy. And (as reported by RT) this week the Seattle Chapter of the Satanic Temple, saying that the school has essentially turned the post-game field into a public forum for religion, wrote to school officials (full text of letter) saying: "In light of football coach Joe Kennedy’s public prayer on the Bremerton High football field at the October 18 game, The Satanic Temple of Seattle requests permission to also perform a public Satanic invocation on the football field after the next football game, at the behest of a Bremerton High student."

Suit Questions Whether Released Time Church Buses Must Meet School Bus Standards

Public Opinion News reported yesterday on a suit filed in a Franklin County, Pennsylvania trial court challenging the contention by Pennsylvania State Police that yellow buses used by a Christian camp to transport students to and from school for a once-a-week "released time" program must meet the standards for vehicles owned or under contract with a school district.  Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. A state trooper stopped one of the buses for inspection in a church parking lot, cited it for 9 violations and refused to allow students to board the bus to return to school. The suit asks for a preliminary injunction and a declaratory judgment permitting the Joy El to resume using its buses. Since the citation,it has been renting other buses at a cost of over $5000 per week.

Appeals Court: Sexual Orientation Not Covered By Missouri's Ban On Sex Discrimination In Employment

In Pittman v. Cook Paper Recycling Corp., (MO App., Oct. 27, 2015), a Missouri appeals court in a 2-1 decision held that the Missouri Human Rights Act does not bar employment discrimination on the basis of sexual orientation. At issue was a hostile work environment claim by a former male employee of a recycling company. Judge Welsh's opinion held:

The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation.

Judge Clayton in a brief opinion concurred with the result only.  Judge Gabbert dissented, saying:

Where our legislature used the broad term “sex,” and that term has been defined in many realms and most recently by the EEOC to include sexual orientation, I prefer to believe that if one is looking to the legislature for guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to act to include.

Columbia Daily Tribune reports on the decision.

6th Circuit En Banc: 1st Amendment Protects Christian Proselytizers At Dearborn's Arab International Festival

In a case that generated six separate opinions spanning some 65 pages, the U.S. Sixth Circuit Court of Appeals, sitting en banc, yesterday upheld the right of Bible Believers, a Christian group, to engage in provocative and offensive proselytizing of Muslims at the annual Dearborn, Michigan Arab International Festival. In Bible Believers v. Wayne County, Michigan, (6th Cir., Oct. 28, 2015), the majority described the Christian group's messages displayed on banners and T-shirts to a predominately Muslim crowd, many of who were adolescents. Among the slogans were: “Islam Is A Religion of Blood and Murder”; “Only Jesus Christ Can Save You From Sin and Hell”; and “Turn or Burn”. One member of the group also carried a severed pig's head on a spike, believing that Muslims are "petrified of that animal." After several encounters with hostile crowds, Bible Believers were escorted out of the Festival by police and ticketed.

Judge Clay's opinion of the court, joined in full by 7 other judges, concluded:

Ultimately, we find that Defendants violated the Bible Believers’ First  Amendment rights because there can be no legitimate dispute based on this record that the [Wayne County Sheriff's Office] effectuated a heckler’s veto by cutting off the Bible Believers’ protected speech in response to a hostile crowd’s reaction.

Several of the judges writing separate opinions concluded, contrary to the majority, that defendants at least enjoyed qualified immunity from damages.  Detroit News reports on the decision.

Homeless Shelter's Challenge To Permit Revocation Dismissed As Not Yet Ripe

In New Life Evangelistic Center, Inc. v. City of St. Louis, Missouri, (ED MO, Oct. 27, 2015), a Missouri federal district court dismissed as not ripe a lawsuit by a Christian church seeking to continue to operate its homeless shelter. The city's Board of Public Service voted to revoke the shelter's 32-bed hotel permit when, after receiving a petition from neighbors, it found that the shelter was housing up to 300 individuals per night.  The shelter however was given the option of coming into compliance with its license or obtaining a new appropriate permit.  The church responded by suing for a declaratory judgment and injunction, alleging that its rights under RLUIPA and the 1st and 14th Amendments had been infringed. However the court concluded:

at the time New Life filed this litigation, it had several options before it which made any claimed injury contingent on several possibilities and fairly speculative. Although the grace period in the Board's Order has elapsed, the Court finds that Plaintiff cannot escape the requirements of either appealing the Board's Order or proceeding with the filing of a new application as required by the Board's Order simply by prematurely filing a case in federal court.

Donald Trump On the Ayatollah and Middle Eastern Muslim Women

CBS News reports that Donald Trump, at a campaign rally on Monday, continued his unconventional rhetoric, this time in connection with the Ayatollah Ali Khamenei and Muslim women in the Middle East. Focusing on how he would address Khamenei, Trump said:

I'll say, 'Hey baby, how ya doing?' I will never call him the Supreme Leader. And I'll get along with him probably. And maybe not. And if he doesn't get along with me, they got problems. We don't.

He then went on to say that the U.S. should stop intervening to further women's rights in the Middle East because women there do not want freedom, as shown by their desire to wear burqas or niqabs that hide their face. Trump framed his conclusion this way:

With the women over there, they don't have to wear the you-know-what. And then I said, 'Oh well that makes sense. That's nice.' Then, I saw women interviewed. They said, 'We want to wear them. We've worn them for a thousand years. Why would anyone tell us?' They want to. What the hell are we getting involved for? The fact is it's easier. You don't have to put on make-up. Look how beautiful everyone looks. Wouldn't it be easier if "mwah" (kissing sound)? Right? Wouldn't that be easy? I tell you if I was a woman - "mwah" - I'm ready darling. Let's go.

Ben Carson's Seventh Day Adventist Faith Is Explored

With Ben Carson coming in as either first or second in almost all the Republican presidential polls, yesterday the New York Times posted a lengthy survey of Dr. Carson's Seventh Day Adventist religion and his relationship to the denomination, saying in part:

In an election season where religion and politics have collided frequently, Mr. Carson’s faith remains a mystery to some and is something that could prove to be both a strength and a liability as he moves forward....

The Adventist legacy is rooted in the 19th century and grew out of what was known as the “Great Disappointment.” Most followers consider its initial founder to be William Miller, a Baptist preacher from upstate New York who calculated that Jesus Christ was due to return to earth on Oct. 22, 1844. When the savior failed to show up, the flock was left in a state of despair.

One of Mr. Miller’s followers, Ellen G. White, reconstituted the denomination under the doctrine that Christ had actually relocated to a heavenly sanctuary where he would begin judgment of the world. She was seen as a prophet.

Unlike members of other Christian denominations, Adventists honor the Sabbath on Saturdays instead of Sundays. They tend to be vegetarians and they continue to wait patiently for the Second Coming and the end of the world....

For theological reasons, Adventism has faced tensions with the Catholic and Baptist churches over the years....