Annual "Friend or Foe Christmas" Campaign Launched

Liberty Counsel yesterday announced that it is launching its "Eighth Annual Friend or Foe Christmas Campaign. The annual promotion takes aim at attempts to rename Christmas events as "holiday" activities and at decisions that have banned a range of items, from nativity scenes to wearing of red and green Christmas colors, from various public venues. A resource page on Liberty Counsel's website links to legal memos on public Christmas celebrations and on Christmas in the workplace.  The website offers buttons, bumper stickers and ads promoting Christmas. It also links to a "Naughty or Nice" list of retailers, based on whether they specifically promote "Christmas" in their advertising and displays ("nice") or merely use "holiday" or other generic seasonal depictions and language ("naughty").

Cert. Filed In Seventh Day Adventist Case: Does RFRA Apply To Suits Between Private Parties?

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in McGill v. General Conference Corporation of Seventh Day Adventists. In the case, the court refused to dismiss trademark infringement and related claims brought by two Seventh Day Adventist religious organizations against a break-away church that used a similar name. The court refused to carve out a special exception for religious intellectual property. The petition for review filed with the Supreme Court focuses on a second part of the 6th Circuit's decision that rejected a claim that the Religious Freedom Restoration Act applies to the case. The 6th Circuit held that RFRA applies only suits in which the government is a party. (See prior posting.) The cert. petition points out that the 5th and 7th Circuits agree with the 6th Circuit in this regard, while the 7th, 8th and D.C. Circuits have applied RFRA to suits brought under federal law involving only private parties. [Thanks to Seth Galanter for the lead.]

Federal Court Issues TRO Barring Certification of Oklahoma Anti-Shariah Amendment

AP reports that an Oklahoma federal district court today issued a temporary restraining order barring Oklahoma's State Board of Elections from certifying the results of last week's vote on an amendment to the Oklahoma constitution that bars state courts from considering international law or Shariah law in deciding cases. The lawsuit leading to the TRO was filed last week by CAIR, asserting that the amendment violates the Establishment Clause. (See prior posting.) The court's TRO remains in effect until Nov. 22 when the court will hold a hearing on a temporary injunction.

Mixed Reactions To Pope's Visit To Spain

London's Independent yesterday reported on Pope Benedict XVI's just-completed visit to Spain (Pope's itinerary). The paper says:

the visit has touched a sensitive nerve in Spanish society, divided between traditional Catholics and a growing movement to eliminate Church influence in state affairs.

The Socialist Prime Minister, who figured this was a good weekend to surprise Spain's 1,500 troops in Afghanistan, is on the secular side. He has stopped short of scrapping the teaching of Catholic doctrine in state-supported schools, but during his six-year tenure he has infuriated the Church hierarchy by legalising gay marriage, simplifying divorce proceedings and, most recently, allowing first-trimester abortion on demand.

As the Pope's motorcade moved through Barcelona, a hundred gay and lesbian couples greeted him with a "collective kiss" to protest the Vatican's views on sexual freedom, divorce and condom use.

Obama In India Responds To Question About Jihad

President Obama is on a trip to Asia, and yesterday he and Michelle Obama spoke with students at a Town Hall at St. Xavier College, in Mumbai, India. (Full text of remarks and Q&A). In the first question to the President in the Q&A, a college student asked Obama's "opinion about jihad."  Here is the President's response:

    Well, the phrase jihad has a lot of meanings within Islam and is subject to a lot of different interpretations.  But I will say that, first, Islam is one of the world’s great religions.  And more than a billion people who practice Islam, the overwhelming majority view their obligations to their religion as ones that reaffirm peace and justice and fairness and tolerance.  I think all of us recognize that this great religion in the hands of a few extremists has been distorted to justify violence towards innocent people that is never justified.

     And so I think one of the challenges that we face is how do we isolate those who have these distorted notions of religious war and reaffirm those who see faiths of all sorts -- whether you are a Hindu or a Muslim or a Christian or a Jew or any other religion, or your don't practice a religion -- that we can all treat each other with respect and mutual dignity, and that some of the universal principles that Gandhi referred to -- that those are what we’re living up to, as we live in a nation or nations that have very diverse religious beliefs. 

     And that's a major challenge.  It’s a major here in India, but it’s a challenge obviously around the world.  And young people like yourselves can make a huge impact in reaffirming that you can be a stronger observer of your faith without putting somebody else down or visiting violence on somebody else.

     I think a lot of these ideas form very early.  And how you respond to each other is going to be probably as important as any speech that a President makes in encouraging the kinds of religious tolerance that I think is so necessary in a world that's getting smaller and smaller, where more and more people of different backgrounds, different races, different ethnicities are interacting and working and learning from each other. 

     And those circumstances -- I think all of us have to fundamentally reject the notion that violence is a way to mediate our differences.   

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, Book Review: The Handmaid of Politics, (Journal of Law and Religion, Forthcoming).
• Thomas Venzor, Protecting the Unborn Child: The Current State of International Law Concerning the So-Called Right to Abortion and Intervention by the Holy See, (Nebraska Law Review, Vol. 89, 2011).
• Christopher C. Lund, Legislative Prayer and the Secret Costs of Religious Endorsements, (Minnesota Law Review, Vol. 94, p. 972, 2010).
• Jeremy Waldron, Toleration and Calumny: Bayle, Locke, Montesquie and Voltaire on Religious Hate Speech,  (October 29, 2010).

From SmartCILP:

• Adam Candeub, Shall Those Who Live By FCC Indecency Complaints Die By FCC Indecency Complaints?, 22 Regent University Law Review 307-321 (2009-2010).
• Sarah J. Conroy, Birth Control and the Citizen-Catholic in One-Child China, 25 Connecticut Journal of International Law 431-458 (2010).
• Michelle McKinley, Fractional Freedoms: Slavery, Legal Activism, and Ecclesiastical Courts in Colonial Lima, 1593-1689, 28 Law & History Review 749-790 (2010).
• Mark A. Noll, The Election Sermon: Situating Religion and the Constitution in the Eighteenth Century, 59 DePaul Law Review 1223-1248 (2010).

Court Rejects Establishment Clause Challenge To Waldorf Schools

Yesterday's Sacramento Bee reports that on Friday, a California federal district court dismissed a lawsuit that had been in the courts for 13 years challenging two California school districts for using the Waldorf teaching method in two of their schools. The suit alleged that the school districts violated the federal Establishment Clause and the church-state separation provisions of the California constitution. People for Legal and Non-Sectarian Schools argued that the teaching method, based on the philosophy of Rudolph Steiner, is religious. (See prior posting). At the non-jury trial, plaintiffs presented only a single witness and four admissible exhibits. The court held that plaintiffs had failed to establish that Steiner's philosophy of anthroposophy is a system of belief and worship.

UPDATE: The full opinion in the case is now available on LEXIS: PLANS, Inc. v. Sacramento Unified School District, 2010 U.S. Dist. LEXIS 117711 (ED CA, Nov. 4, 2010).

Recent Prisoner Free Exercise Cases

In Fabricius v. Maricopa County, (9th Cir., Nov. 1, 2010), the 9th Circuit upheld dismissal of a pre-trial detainee's complaint that a jalil's playing of holiday music violated the Establishment Clause.

In Freeman v. Julious, 2010 U.S. Dist. LEXIS 115367 (ED CA, Oct. 21, 2010), a California federal magistrate judge dismissed, with leave to amend, an inmate's claim that prison authorities failed to comply with his request to receive a Satanic bible and consult with a Satanic clergyman.

In Sylvian v. Florida Department of Corrections, 2010 U.S. Dist. LEXIS 115183 (ND FL, Oct. 29, 2010), a Florida federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 115189, Sept. 28, 2010) and dismissed a Muslim inmate's claim that prison rules requiring him to be clean shaven violate his free exercise rights.

In Hammer v. Johnson, 2010 U.S. Dist. LEXIS 115483 (WD VA, Oct. 29, 2010), a Virginia federal district court refused to grant an inmate a temporary restraining order he sought so he could received the prison's Common Fare religious diet.

In Planker v. Ricci, 2010 U.S. Dist. LEXIS 116083 ( NJ, Oct. 29, 2010), a New Jersey federal district court denied an Odinist inmate a preliminary injunction. Plaintiff claimed that Odinist religious services were scheduled to conflict with his lunch time and his outdoor recreation time, in violation of his rights under RLUIPA and the equal protection clause.

In Prentice v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 116248 (D NV, Oct. 19, 2010), a Nevada federal district court relied on a decision last year by a California federal district court (see prior posting) and held that the White supremacist Church of Creativity is not a "religion" for purposes of the First Amendment. It also found that authorities had sufficient reason to bar racist materials for security purposes.

In Soria v. Nevada Department of Corrections, 2010 U.S. Dist. LEXIS 116866 (D NV, Oct. 19, 2010), a Nevada federal district court permitted a Jewish inmate to proceed with his complaint that prison officials refused his request for outdoor space and for materials that would permit him to put up a sukkah for the holiday of Sukkot.

In McCarroll v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 117414 (ND NY, Nov. 4, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 117418, Sept. 30, 2010), and dismissed on qualified immunity grounds a prisoner's complaint that he should have been permitted for religious reasons to submit a hair or saliva sample, instead of a blood sample, to be tested for tuberculosis.

Court Says Avoiding High Cost Alone Not A Compelling Government Interest Under RLUIPA

An Indiana federal district court has decided an important prisoner religious rights case brought as a class action by the ACLU, holding that RLUIPA was violated when an Indiana prison stopped serving kosher meals for cost reasons.  In Willis v. Commissioner, Indiana Department of Corrections, 2010 U.S. Dist. LEXIS 116280 (SD IN, Nov. 1, 2010), the facts showed that Indiana prisons had provided both pre-packaged kosher meals and pre-packaged Halal meals (after for a time using higher-cost kosher meals to satisfy requests of both Muslim and Jewish inmates). Costs of pre-packaged meals in total spiraled as the number of Muslim inmates requesting Halal meals increased. In response, the prison system stopped providing any pre-packaged religious meals and instead offered vegan meals prepared on site. But those did not meet strict kosher requirements.  The court held that the Department of Corrections (DOC) had "cited absolutely no relevant authority to support the conclusion that spiraling cost alone is a compelling government interest." The court also concluded that DOC had failed to consider other possible alternatives for serving kosher meals that might be less expensive.

Finally the court held that the lead plaintiff's individual free exercise rights had been violated. While pre-packaged kosher meals were still being served, the prison had a policy of removing from the kosher diet plan any inmate who did not eat 75% of his kosher meals.  Plaintiff did not meet that requirement because breakfasts-- which the prison claimed were kosher-- were not pre-packaged and plaintiff did not eat them because he disagreed that they met kosher standards The court set a hearing for Nov. 30 on the scope of the injunction that should issue.  Chicago Tribune reported on the decision. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

1st Circuit Hears Arguments On Whether FMLA Covers Accompanying Spouse For Faith Healing

Corporate Counsel reports that on Thursday the 1st Circuit Court of Appeals heard oral arguments in Tayag v. Lahey Clinic Hospital, Inc.  One of the issues in the case is whether the federal Family and Medical Leave Act provides leave for caregivers accompanying sick family members who are seeking spiritual healing.  Plaintiff was terminated by her employer for taking unauthorized leave when she accompanied her ill husband to their native Philippines for a seven-week trip. The couple spent 3 and a half weeks at a healing program at a Catholic church and then made religious pilgrimages to other churches in the Philippines as well. They also saw friends and family while in the Philippines. The decision under appeal was handed down by a Massachusetts federal district court in January. (Full text of decision.) The trial court held that

It is far from clear that caring for a seriously ill spouse on a trip for non-medical religious purposes is a protected activity under the FMLA.  Even if caring for a sick spouse on a trip for faith-healing were protected because of its potential psychological benefits, it is undisputed that nearly half of the Tayags’ trip was spent visiting friends, family, and local churches.  The FMLA does not permit employees to take time off to take a vacation with a seriously ill spouse, even if caring for the spouse is an “incidental consequence” of taking him on vacation. 

Malaysian Politicians Condemn Teacher's Caning of Student For Bringing Non-Halal Food to School

In the Malaysian state of Sarawak, politicians from the governing Barisan Nasional party, as well as from opposition parties, have condemned the actions of a public school teacher who caned a boy for bringing non-Halal food to school.  According to Saturday's Free Malaysia Today, the senior teacher of St. Thomas Primary School took the action against Basil anak Beginda for bringing fried rice with pork sausages to eat during school recess. Spokespersons for various political parties emphasized the tradition of tolerance in Sarawak, freedom of religion and their belief that the boy's infraction was not serious.

Police Officer's Claim of Religious Discrimination In Investigation Dismissed

Longmire v. City of Oakland, (ND CA, Nov. 2, 2010), is a lawsuit by an Oakland,California police officer who believed that racial and religious discrimination impacted an investigation that concluded he interfered with the police department's criminal investigation of a Black Muslim Bakery. Members of the bakery were suspected of being involved in two homicides, a kidnapping, a robbery and more. Plaintiff Derwin Longmire claims he was targeted because he was suspected of being a member of the Black Muslim religion while in fact he is a Christian African-American.  In this opinion, a California federal district court dismissed, with leave to amend, Longmire's free speech, free exercise of religion, freedom of association and privacy claims. In dismissing plaintiff's free exercise claim, the court concluded:

Plaintiff ... has failed to provide support for the legal contention that a state may infringe an individual’s free practice of religion based on discrimination on a (mis)perceived religious affiliation.

In dismissing his claim for infringement of associational rights, the court said:

There can be no inference from the allegations made in the current complaint that his rights to associate with the Black Muslim Bakery were infringed if he did not actually associate, or wish to associate, with the group.

The court permitted plaintiff to proceed with his claim that the investigation against him was tainted with race-based discrimination. Yesterday's Contra Costa (CA) Times reports on the decision.

Fair Housing Charges Dismissed In Case of Church Posting For Female Christian Roommate

The U.S. Region V Office of Fair Housing and Equal Opportunity has found no reasonable cause to believe there was a violation of the Fair Housing Act in the case of a woman who posted an ad for a "female Christian roommate" on her church bulletin board.  The Fair Housing Center of West Michigan filed a complaint against a 31-year old Grand Rapids (MI) woman who posted the notice after someone in her congregation complained about the ad. (See prior posting.) While the complaint was filed with the Michigan Department of Civil Rights, that agency, in a statement, said that it coordinates with the U.S. Department of Housing and Urban Development to assure uniform application of the law, and HUD decided that the legal and Constitutional issues posed by the case were ones it wanted to address.

In its Oct. 28 Determination of No Reasonable Cause, HUD said:

The advertisement contains statements that indicate a preference or limitation based on religion and gender. In general, 42 U.S.C. 3604(c) prohibits such statements whether made verbally or in writing. However, in light of the facts provided and after assessing the unique context of the advertisement and the roommate relationship involved in this particular situation potentially involving the sharing of personal religious beliefs, the Department defers to Constitutional considerations in reaching its conclusion.

The statement issued by the Michigan Department of Civil Rights emphasized that it had never implied during its investigation that there was a violation of law. It went on to say:

We do not comment on the specifics of an open investigation until we have reached an official determination, and we do not reach a determination until after an investigation is complete and it can be based on all of (and only) the facts. In this instance, we sincerely wish everyone would have done the same.

Because some chose to ignore the difference between conducting a legally-required investigation and the decision to bring a charge of discrimination based upon that investigation when appropriate, this office and specifically a member of our staff was subjected to a barrage of phone calls, emails, comments, posts and blog entries. Although these communications were premature in that they falsely accused us of having made a determination, they were mostly valid expressions of personal opinion, which the Department is always interested in receiving. However, many also included threats or other inappropriate personal attacks. The Department of Civil Rights will not tolerate such conduct, which it believes is never appropriate. All threatening communications have been and will be forwarded to the appropriate law enforcement authorities.

Under the Fair Housing Act (background), HUD's determination does not preclude filing of a federal lawsuit by a victim of discrimination at that person's own expense. (42 USC Sec. 3613.) Today's Grand Rapids Press reports on the case.

9th Circuit Hears Oral Arguments In Church Zoning Case

On Wednesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in International Church of the Foursquare Gospel v. City of  San Leandro. An audio recording of the oral arguments is available from the court's website. In the case, a California federal district court rejected RLUIPA, First Amendment, due process and equal protection challenges to a California city's refusal to rezone for "assembly" use industrial property a church had agreed to purchase. (See prior posting.)

Lawsuit Seeks To Bar Certification of Oklahoma Vote on Shariah Law

Two days after Oklahoma voters overwhelmingly approved a ballot measure barring state courts from considering or applying Shariah law, the Council on American-Islamic Relations filed a lawsuit seeking to enjoin the State Board of Elections from certifying the election results on the proposed constitutional amendment. The complaint (full text)  in Awad v. Ziriax, (WD OK, filed 11/4/2010), alleges that the amendment enshrines a condemnation of plaintiff's Muslim faith in the state constitution. In support of the injunction plaintiff argues that the Shariah ban violates the Establishment Clause because it has a sectarian purpose and effect. The complaint also asserts that the amendment violates the federal free exercise clause by targeting only one religion. Wall Street Journal reports on the filing of the lawsuit.

Consent Decree Entered In Suit By Group Seeking To Distribute Bibles In High Schools

On Tuesday, a Florida federal district court entered a consent decree (full text) in World Changers of Florida, Inc. v. District School Board of Collier County, Florida, (MD FL, Nov. 2, 2010). The lawsuit challenged a school policy instituted in 2008 that only permitted distribution of literature in the schools by outside groups if administrators found that it promotes student interests.  Applying the policy, the school ended the prior practice of allowing World Changers to set up a table in high schools to hand out Bibles on Religious Freedom Day. (See prior posting.) Under the settlement embodied in the consent decree, the school will create a limited public forum, allowing all non-profit groups to passively distribute literature to high school students from tables outside of classrooms on one day each year, set by the consent decree as January 16 (which is National Religious Freedom Day). Each table will carry a sign indicating the group handing out material and stating that the material is not endorsed by the school board. Certain materials can be excluded-- such as that promoting of alcohol, tobacco or illegal drugs; material likely to cause substantial disruption, incite imminent lawless action or material inappropriate for the age and maturity of high schoolers; pornographic or libelous material; commercial advertising; or material that infringes intellectual property or privacy rights. Liberty Counsel issued a press release announcing the settlement.

Financial Scandal Surrounds Pakistan Ministry's Hajj Arrangements

With the arrival of Hajj participants from around the world underway in Saudi Arabia, scandal swirls around the financial dealings of Pakistan's Religious Affairs Ministry in its arrangement of housing for Pakistani Hajj pilgrims. First, according to Monday's Pakistan Express Tribune, Pakistan's Hajj officials arranged for housing for Pakistanis too far away from Hajj activities, so many are instead camping on foot paths and roads. Then Hajj Director General Rao Shakeel was called back to Pakistan, charged with corruption in arranging the inadequate housing. According to today's Express Tribune, Saudi Prince Bin Bandar Bin Abdul Aziz Al-Saud in a letter to Pakistan's Chief Justice alleged that the Religious Affairs Ministry rented out housing to pilgrims at more than twice the actual cost, apparently embezzling the difference. The Supreme Court has ordered the government to deal with the issue on a national level, has ordered the Foreign Office to contact the Saudi government, and has ordered the government to respond to the court within 15 days.  Meanwhile, Prime Minister Syed Yousaf Raza Gilani has appointed a 3-member committee to probe the charges.

Pakistan's Parliament has reacted to the situation. According to Online International News Network, the Senate's Standing Committee on Religious Affairs has recommended that the Prime Minister remove Shakeel from his position, as has the Federal Minister for Religious Affairs.

Evangelist Sues Challenging City's Noise Ordinance

A lawsuit was filed yesterday in a Virginia federal district court by a Christian evangelist challenging Winchester, Virginia's noise ordinance.  Michael Marcavage, director of Repent America, was required by police to stop using a hand-held microphone and speaker while preaching at at Winchester's 2010 Apple Blossom Festival.  The complaint (full text) in Marcavage v. City of Winchester, Virginia, (WD VA, Nov. 3, 2010), contends that the city's ordinance that bars "any noise which unreasonably annoys, disturbs, injures or endangers the comfort, health, safety, welfare, or environment of others" is unconstitutionally vague.  The suit also alleges that the law, on its face violates the free expression provisions of the First Amendment and Virginia's Constitution as well as Virginia's Religious Freedom Restoration Act. Finally, plaintiff contends that because police acted on the basis of one person's complaint that the preaching caused the individual to be uncomfortable, the ordinance was not applied in a viewpoint neutral fashion. The Rutherford Institute issued a press release announcing the filling of the lawsuit.

SG's Standing Argument In Arizona Christian School Organization Case Surprises Some

The Los Angeles Times reports that many are surprised at the government's position on standing put forward yesterday by Acting U.S. Solicitor Gen. Neal Katyal in his Supreme Court argument on the constitutionality of Arizona's tuition scholarship tax credit. (See prior posting.) Here is part of the argument in Arizona Christian School Tuition Organization v. Winn that has caused American United executive director Barry Lynn to describe the Obama administration's position as "inexplicable":

GENERAL KATYAL: Not a cent of the Respondent's money goes to fund religion. If you placed an electronic tag to track and monitor each cent that the Respondent plaintiffs pay in tax, not a cent, not a fraction of a cent, would go into any religious school's coffers.... Their complaint is not that the government is spending ... money that has been extracted [from] ... taxpayers. Their complaint is that someone else's money is not being extracted and spent enough. And the relevant language in Flast says that for taxpayer standing to occur ... "his tax money" must be extracted and spent, and here that is not occurring.

JUSTICE GINSBURG: Counsel, does anyone have standing, in your view, to challenge this scheme?

GENERAL KATYAL: The way this scheme is set up, our answer is no. And I think that accords with this Court's general reluctance to confer taxpayer standing in this area.

JUSTICE GINSBURG: And if we leave out the fine points that you were discussing, isn't the underlying premise of Flast v. Cohen that the Establishment Clause will be unenforceable unless we recognize taxpayer standing?

GENERAL KATYAL: I don't see that, Justice Ginsburg..... I think Flast is a very narrow exception for when someone's dollars are being taken out of their pocket and spent by the government on religion, and I don't think that's happening here....

JUSTICE KAGAN: So if you are right, General Katyal, the Court was without authority to decide Walz, Nyquist, Hunt, Mueller, Hibbs, this -- this very case, just a few years ago? That the Court was out of authority to decide any of those cases, but somehow nobody on the Court recognized that fact, nor did the SG recognize that fact? The SG participated, I believe, in each of those cases.

GENERAL KATYAL: Right.

The government's amicus brief in the case similarly argued that plaintiffs lacked standing to bring their Establishment Clause challenge.

Christian Proselytizer Seeks To Appeal Mormon Judge's Refusal To Recuse Himself

Yesterday in Palmer v. City of Prescott, plaintiff filed a motion for interlocutory appeal (full text) of an Arizona federal district court judge's refusal to disqualify himself from hearing plaintiff's civil rights case. (See prior posting.) Plaintiff, an evangelical Christian who proselytizes Mormons, claimed that Judge David Campbell's Mormon religious beliefs would bias him. In the motion, plaintiff claims that: "true-believing Mormons believe I am a hireling of Lucifer, paid by the devil.... I have further prejudiced the judge against me by disclosing parts of his 'sacred' temple ceremony ... which the church considers blasphemy."