Court Again Dismisses Moorish American's Claim of Immunity

In Bey v. City of Tampa, 2015 U.S. Dist. LEXIS 148847 (MD FL, Nov. 2, 2015), a Florida federal district court dismissed with prejudice an amended complaint by a defendant claiming that her free exercise, speech and assembly rights were infringed when the city would not allow her to display her "Moorish Religious, Heritage, and History sign of the Morocco Treaty of Peace and Friendship" without a permit. Instead of curing pleading problems that led to her original complaint being dismissed (see prior related posting), plaintiff again argued that her status as "Moorish American national" exempts her from the Tampa's permit requirements.

Houston Voters Reject Anti-Discrimination Law In Focus On Transgender Rights

Texas Tribune reports that in Houston, Texas yesterday voters rejected the city's Equal Rights Ordinance by a vote of 61% to 39%.  The Ordinance (full text) barred discrimination on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy.  In a campaign centered in churches to obtain a referendum on the measure (see prior posting), opponents of the measure focused on its sexual orientation and gender identity provisions.  Republican leaders in the state, including the governor and lieutenant governor, supported repeal of the Ordinance.  Yesterday Lt. Governor Dan Patrick, reflecting the predominate theme of the anti-Ordinance campaign, said:

The voters clearly understand that this proposition was never about equality – that is already the law. It was about allowing men to enter women’s restrooms and locker rooms — defying common sense and common decency.

 After the vote, Houston Mayor Annise Parker, the first openly gay mayor of a major U.S. city, said:

Unfortunately, I fear that this will have stained Houston’s reputation as a tolerant, welcoming, global city.  And I absolutely fear that there will be a direct economic backlash as a result of this.

Turkey Sees First Trial Judge Presiding Wearing Headscarf

According to Daily Sabah, a female judge in Istanbul, Turkey yesterday became the first judge in the country to preside at a trial wearing a Muslim headscarf (hijab). For many years, Turkey-- because of its tradition of secularism-- banned women from wearing the headscarf in public institutions.  This past June, the High Council of Judges and Prosecutors changed the rule for judges.

Report Analyzes Political Affiliation and Public Policy Views of Various U.S. Religious Groups

The Pew Research Center yesterday released a new 265-page report (full text) with an appropriately long title: U.S. Public Becoming Less Religious-- Modest Drop in Overall Rates of Belief and Practice, but Religiously Affiliated Americans Are as Observant as Before.  The Report analyzes findings from Pew's 2014 Religious Landscape Study. Chapter 4 of the Report analyzes the views of various U.S. religious groups on a wide variety of social and political topics.  These include political party affiliation, the role of the government, government aid to the poor, environmental regulation, homosexuality, same-sex marriage, abortion, women in the workforce, childbearing out of wedlock, immigration and evolution.

Among the interesting findings is that the religiously unaffiliated (the "nones") is now the largest single religious group among those who self-identify as Democrats or as Democratic-leaning.  28% of Democrats are unaffiliated; while only 14% of Republicans are unaffiliated. The largest religious group among Republicans is Evangelical Protestants. They comprise 38% of Republicans, but only 16% of Democrats.

District Court Upholds Denial of Medicare Reimbursement To Christian Science Nursing Training Programs

In Chestnut Hill Benevolent Association v. Burwell, (D DC, Nov. 3, 2015), the D.C. federal district court upheld a ruling by the Center for Medicare Services that four Christian Science nursing facilities were not entitled to Medicare reimbursement for furnishing "approved educational activities."  The court concluded that while the Christian Science Nursing Arts Training Programs offered by these facilities are accredited by the Commission for Accreditation of Christian Science Nursing Organizations/Facilities, the Commission's standards do not meet those required by Medicare regulations.

FBI Delays Website Designed To Counter ISIS Recruiting After Complaints That It Stigmatizes Muslim Students

Think Progress reports that on Monday, the FBI at least temporarily delayed the launch of its "Don't Be A Puppet" website which was designed to undercut recruitment efforts of extremist groups such as ISIS.  As reported by the New York Times, the website "leads the viewer through a series of games and tips intended to teach how to identify someone who may be falling prey to radical extremists." However community organizations expressed concern that school teachers do not have the expertise to identify those being radicalized and that the website will stigmatize Arab and Muslim students.  The director of the Sikh Coalition complained that schoolchildren face a much greater threat from gun violence that from Muslim extremism.

New Study Examines Power of Orthodox Churches In Former Soviet Republics

The London-based Foreign Policy Centre last week (Oct. 28) released a 79-page report (full text) titled Traditional Religion and Political Power: Examining the Role of the Church in Georgia, Armenia, Ukraine and Moldova. Here is an excerpt from the report's Executive Summary:

In all four states the churches are looking to entrench their role in society and are testing the limits of their influence given that they are the most trusted institutions in each country. To varying extents they have all used a ‘traditional values’ agenda, focused primarily and most successfully on opposition to LGBTI rights, to bolster their support. The Russian Church and state have also been trying to promote this traditional values agenda as part of their ethos of ‘the Russian World’ with which they have been looking to influence the churches and societies of their ‘near abroad’. The Russian social agenda tallies with that of the orthodox communities in these four countries, though this does not always translate into geo-political support for Russia as some of the churches are keen to assert their independence. Having been pushed to the margins of society in Soviet times, the Orthodox churches have taken the opportunity to place themselves at the centre of national and political life in Georgia, Armenia, Ukraine and Moldova, a position they are unlikely to relinquish in the near future.

Eurasianet reports on the study.

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.