New AG Who Will Defend Anti-Shariah Amendment Profiled As Backers Look To Other States

An article in yesterday's Christian Century profiles the new attorney general of Oklahoma who will take office January 1 and will be active in defending Oklahoma's anti-Shariah constitutional amendment that is currently being challenged in court. A federal district court has issued a preliminary injunction preventing certification of the November vote that approved the amendment. (See prior posting.) Attorney-general elect Scott Pruitt, a Republican, is a former state senator who in 2000 co-authored Oklahoma's Religious Freedom Act. Pruitt, who is also co-owner of the Oklahoma City Redhawks minor league baseball team, was strongly backed by Christian Conservatives in the November election. Meanwhile, Jordan Sekulow of the American Center for Law and Justice, who advised one of the drafters of the anti-Shariah amendment, says that they are looking ahead to proposing similar amendments in other states.  He reported:  "We've already started drafting amendments similar to this that would be even more constitutionally airtight."

Rabbi, Rejected As Army Chaplain Because of Beard, Sues

The Washington Post reports that yesterday an Orthodox Jewish rabbi filed suit against the U.S. Army challenging its refusal to allow him to serve as a chaplain because he wears a religiously-mandated beard. Originally the Army appointed Menachem M. Stern, a member of the Brooklyn (NY) Chabad-Lubavitch community, as a second lieutenant, but then withdrew his commission in September because of the Army's policy barring beards. The suit alleges that the refusal is discriminatory, particularly since the Army has since granted waivers of the beard regulation to two Sikh and a Muslim Army officers. (See prior related posting.) [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

HHS Faith-Based Office Promotes Flu Vaccinations

The U.S. Department of Health and Human Services announced this week that its Center for Faith-based and Community Partnerships is promoting National Influenza Vaccination Week with coordinated events around the country and the release of two new "fight the flu" resources-- a one page flyer and a guide for faith and community leaders on seasonal influenza. As part of the effort, U.S.Surgeon General Dr. Regina Benjamin spoke at Bishop T.D. Jakes' Potter’s House in Dallas, Texas.

Groups Criticize Armenia's Proposed Amendments To Religious Organizations Law

Forum 18 reported yesterday that human rights activists and religious groups are strongly criticizing proposed amendments to Armenia's Law on Freedom of Conscience and Religious Organizations (full text) and proposed amendments to the country's Administrative Offenses Code, Law on Charity, and Criminal Code (full text). The drafts were presented to the Venice Commission of the Council of Europe in October for legal review. The draft law on religious organizations provides in part that: "Registration of a religious organisation shall be carried out on the basis of an expert opinion on its religiousness."  Among the information that an organization seeking registration must submit to the state registration body is:

information on the basics of the doctrine and the practice based thereon, including the characteristics of the given belief and history of origin of the given organisation, characteristics of the forms and methods of its activities, characteristics of attitude towards family, marriage and education, characteristics of the attitude towards the health of the followers of the given religion, on limitations of civil rights and obligations envisaged for the members and servants of the organisation

The draft also provides that a court may order liquidation of a religious organization on grounds of:

• Breach of public security and public order;
• Damaging human health and morality;
• Encroachment of human rights and freedoms;
• Arbitrary intervening in family affairs;
• Abetting persons "being in a state dangerous for life and health" to refuse medical aid based on religious motives;
• Instigate persons to refuse performing civil obligations prescribed by law and to commit other illegal actions.

A proposed new provision in the Criminal Code deals with proselytism. It would bar "distortion of religious convictions of persons in any direct or indirect form of persuasion through a reward or a promise thereof or moral assistance or material aid or deceit, as well as through exploitation of their lack of experience, trust, need, [or] low mental abilities."

Louisiana Rejects Attempts To Include Material on Creationism In New Biology Textbooks

In Louisiana, the Board of Elementary and Secondary Education’s 11-member Student/School Performance Committee voted 6-1 on Tuesday to approve biology textbooks that teach about evolution.  Fox News reports that the Committee rejected attempts by conservatives to add references to the debate about creationism or intelligent design.  The Louisiana Coalition for Science released a statement saying:

We are pleased and proud that the board has done the right thing. As a result, students in Louisiana public schools will have the most current, up-to-date information about biology, including the theory of evolution, which is the strongest explanation of the history and development of life on Earth ever constructed.

[Thanks to Scott Mange for the lead.]

Oregon Gives School Boards Guidance On Teachers Wearing of Religious Clothing

Earlier this year, the Oregon legislature passed a law repealing an 87-year old ban on teachers wearing religious dress in the classroom. (See prior posting.)  Yesterday Oregon's State Labor Commissioner and its Superintendent of Public Instruction jointly announced the creation of a model policy for school districts to use in applying the new law in their schools. The new model policy (full text) allows schools to ban religious dress when it is intended as, or would be perceived as, school district endorsement of the teacher's religious beliefs or as indoctrination or proselytizing of students. In determining intent or perception, schools may consider:

i. The size and visibility of the item of religious clothing;

ii. The inclusion of any writing or symbols on the religious clothing that communicates a direct message;

iii. Any accompanying verbal statements or declarations of a religious nature that go beyond a limited explanation of the religious significance or obligation associated with the wearing of the religious clothing;

iv. The number of employees requesting, or wearing, the same or similar religious clothing in the school; and

v. The reasonableness of this perception should take into account the age, background and sophistication of the student, parent, or employee in the school who regularly encounters the employee.

Peru Enacts New Religious Liberty Protections

The Adventist News Network reports that Peru's Congress (the South American country's unicameral legislature) last week passed historic legislation guaranteeing religious liberty. The new law protects public and private exercise of religion, except where it infringes on the freedoms or fundamental rights of others, or where it threatens public order or welfare. The law protects students, so their grades will not be affected by the practice of their religious faith.  It bars religious discrimination and guarantees all faiths the same rights, obligations and benefits.

7th Circuit Hears Oral Arguments In Day of Prayer Appeal

Last week, the U.S. 7th Circuit Court of Appeals heard oral arguments in Freedom from Religion Foundation v. Obama, a case in which the district court held that the statute creating a National Day of Prayer violates the Establishment Clause. (See prior posting.) The recording of the full oral arguments in the Court of Appeals is now available from the court's website. [Thanks to Illusory Tenant for the lead.]

European Council Rejects Kosher Slaughter Warning Label Requirement

JTA yesterday reported that the Council of the European Union has rejected a controversial kosher meat labeling requirement (Amendment 205) that had originally been approved by the European Parliament as part of new food information regulations.  The proposal would have required kosher meat to be labeled "meat from slaughter without stunning." (See prior related posting.) The reversal follows months of lobbying in Brussels by Jewish groups who feared that the pejorative label would cause prices to rise sharply because many non-Jewish purchasers of kosher meat would be deterred by the label. Currently 70% of kosher meat is purchased by non-Jews. The regulation still must come up for a second reading in the European Parliament where the amendment could be reintroduced. (Background on EU legislative process.)

British Hotel Owners Say Ban on Unmarrieds Occupying Same Room Is Not Sexual Orientation Discrimination

In Britain, a Christian couple who own a seaside hotel in Cornwall are facing civil charges that they violated the Equality Act by refusing to rent a double room to a gay couple. According to today's Bearsden Herald, owners Peter and Hazelmary Bull, however, say they were not discriminating on the basis of sexual orientation. They say they have a general policy, based on their religious beliefs about marriage, of not allowing unmarried couples-- heterosexual or gay-- to occupy the same room. A two-day hearing in the case is scheduled to begin Monday in Bristol County Court.

Catholic Religious Order Charged With Mishandling Abuse Claims Against One of Its Brothers

AP yesterday reported on a long series of events reflecting mishandling by the Catholic religious order, the De La Salle Christian Brothers, of sexual abuse charges against one of its Brothers, Raimond Rose.  Rose taught religion and history classes at De La Salle high schools in Minnesota, Wisconsin, North Dakota and California. He is charged with sexually molesting numerous boys in the 1960's, '70's and early '80's, often while accompanying them on school trips. 21 victims so far have filed lawsuits against Rose. One of the victims, Kenneth Price, contacted the Christian Brothers religious order in 1995. He was assured in a letter from Brother Thomas Johnson (now the second-highest official in the international Christian Brothers order) that Rose had been forbidden to be in contact with anyone under 18 and was working in a prison. It turns out, however, that Rose was chaplain for the Minnesota Correctional Facility-Red Wing, a facility for males ages 10 to 21. One of the inmates later sued Rose for molestation.

Michigan City Settles RLUIPA Suit, Lets Church Move Into Commercial Area

The Oakland County (MI) Daily Tribune reports that a Michigan federal district court last Friday signed a consent order under which the city of Hazel Park, Michigan settled a RLUIPA zoning lawsuit filed against it by the Salvation Temple that wanted to move into a building, but was denied a permit under an ordinance passed in 2005 that bars religious institutions in areas zoned commercial or industrial. (See prior posting.) Under the agreement, the church will be permitted to move into a building that was used as a banquet hall but has been vacant since 2002.  The church will bring the building up to code and will pay back taxes before the property becomes tax exempt. The building, on a triangular parcel of land near two interstates, was unlikely to find a commercial buyer. City officials say there was no economic benefit in their fighting the lawsuit. The settlement did not rule on the validity of the zoning ordinance which apparently effectively keeps churches out of Hazel Park because there is no residentially zoned property large enough to accommodate a church and required parking.

No State Action In Alleged Slander By Pastor

In Cohn v. Freeman, 2010 U.S. Dist. LEXIS 128104 (WD NC, Nov. 22, 2010), a North Carolina federal district court dismissed a free exercise claim (as well as a claim for slander) brought pro se by plaintiff Debra Cohn who claimed that defendant, a pastor at Mt. Zion Restoration Church, told her son that his now deceased father believed that Cohn was trying to kill him. The pastor warned the son not to eat anything that Cohn prepared because she might be trying to poison him also. Following these events, Cohn stopped attending Mt. Zion Church. In dismissing the First Amendment claim, the court concluded both that defendant was not acting under color of state law nor did Cohn allege that she was asked or forced to leave her church.

Elaborate Sikh Community Dispute In Court In Canada

Today's Windsor (ON) Star reports on a law suit that has a Canadian court in the middle of a factional dispute at a Sikh Gurdwara in Windsor, Ontario. A power struggle among leaders of the Sikh Cultural Society of Metropolitan Windsor began in 2009 when a new executive was proclaimed.  The old officers refused to relinquish power and revoked membership of the newly elected officials. According to the paper's report: "Police have been called to the temple after heated arguments. One new member of the temple's executive committee says he was physically attacked in the driveway of his home while another says shots were fired at his house."

Three court orders have now been entered in the dispute. In the first order, the court reinstated the newly elected officers. On Monday the court issued a restraining order barring the old leaders from going within one kilometer of the Gurdwara Khalsa Parkash unless they are attending religious services.  They must give up possession of the premises and may not pass themselves off as authorized to represent the Society. Finally, 25 people named in the restraining order may not go within one kilometer of the homes of the new executive members. The contentiousness has led enough of the new board member to resign that the executive does not have a quorum. So in March the court will begin going through the membership records to determine who is a bona fide member entitled to vote for new executive members.

Changes To Pakistan's Blasphemy Law Challenged

According to M and C, a Pakistani court yesterday temporarily blocked action on government-proposed amendments to relax the country's blasphemy laws while the court considers a citizen's petition claiming that Parliament does not have a constitutional right to amend the country's laws relating to religion.  Meanwhile according to Cath News India, the Anglican Bishop of Lahore has criticized a proposed change to Pakistan’s blasphemy law that would outlaw insulting the Christian religion. Debate over the blasphemy law has increased since a Punjab district court sentenced a Christian woman, Asa Bibi, to death on blasphemy charges. (See prior posting.) Anglican Bishop Alexander John Malik said: "Jesus does not need a worldly law for His honor. We reject such a notion because extremists can take advantage of it."

Saudi Religious Police Say New Plan Works To Combat Deviant Extremist Ideology

According to a report yesterday by Asharq Alawsat, the Director of Saudi Arabia's Commission for the Promotion of Virtue and the Prevention of Vice told a meeting of branch directors in Khobar Saturday that the Commission has begun to implement a plan to combat deviant extremist and hard-line ideology. The director, Dr.Abdul Aziz al-Humain said that "the CPVPV has played a supporting role in the efforts exerted by the Interior Ministry's security apparatus…and CPVPV members are participating in the Munasaha rehabilitation program for followers of deviant ideology...."

UN Third Committee Approves Defamation of Religions Resolution By Smaller Margin Than Last Year

Baptist Press reports that on Nov. 23,the United Nations Third Committee of the General Assembly approved a defamation of religions resolution (full text), but by a significantly smaller margin than last year.  The vote on the resolution this year was 76- 64 with 42 abstentions. Last year the vote was 81- 55.  The U.S. Commission on International Religious Freedom in its Fall Policy Focus discusses why the U.S. and others have oppose this resolution that has repeatedly been introduced by the Organization of the Islamic Conference. This year's resolution mentions "Judeophobia" and "Christianophobia" as well as Islamophobia as evils to be combatted. The U.N.General Assembly will vote on the resolution later this month.

9th Circuit Hears Oral Arguments In Challenge To California's Proposition 8

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Perry v. Schwarzenegger, the constitutional challenge to California's Proposition 8 that barred same-sex marriage. A video recording of the two hours of argument-- the first half on standing, the second on the merits-- is available from the court's website. Silicon Valley Mercury News reports on the oral arguments, saying that the court "appeared generally inclined to support the right of same-sex couples to marry in California. But how the judges reach that historic conclusion remains quite unpredictable." Scotus blog has an excellent summary of the oral arguments.

Meanwhile leaders of 26 religious groups across the country yesterday issued a letter titled "The Protection of Marriage: A Shared Commitment," in which they affirm their "shared commitment to promote and protect marriage as the union of one man and one woman."  Among the groups endorsing the letter are the National Association of Evangelicals, the Church of Jesus Christ of Latter Day Saints, the Union of Orthodox Jewish Congregations, the US Conference of Catholic Bishops, the National Hispanic Christian Leadership Conference, the Orthodox Church in America and the World Sikh Council. (Backgrounder on letter from Catholic Bishops.)

Paper Profiles FBI's Use of Informant To Infiltrate California Mosque

Yesterday's Washington Post carried a long article on the FBI's use of a convicted forger, Craig Monteilh, as an undercover informant who infiltrated an Islamic Center in Irvine, California to look for potential terrorists.  His tactics, however, backfired as Muslims at the mosque, concerned about his talk of violent jihad, obtained a restraining order against him. The case Monteilh built against one mosque member has collapsed and been dismissed by prosecutors. Meanwhile Monteilh has gone public to reveal how his FBI handlers trained him. The FBI and Justice Department say Monteilh's case is not representative of their generally good relations with the Muslim community. [Thanks to H. Kashk for the lead.]

Canadian Court Rules Against Break-Away Anglican Parishes

In Bentley v. Anglican Synod of the Diocese of Westminster, (BC Ct. App., Nov. 15, 2010), the Court of Appeal in the Canadian province of British Columbia refused to permit four break-away Anglican parishes to continue to use parish property and assets for worship. It also agreed with the trial court that a bequest to one of the parishes remained with it. In the opinion, the court rejected the American "neutral principles of law" approach to deciding disputes over church property. Finding that parish properties are held in trust, the court concluded:

the purpose of the trusts on which the parish corporations hold the church buildings and other assets is to further Anglican ministry in accordance with Anglican doctrine, and that in Canada, the General Synod has the final word on doctrinal matters. This is not to say that the plaintiffs are not in communion with the wider Anglican Church – that is a question on which I would not presume to opine. I do say, however, that members of the Anglican Church in Canada belong to an organization that has subscribed to “government by bishops.” The plaintiffs cannot in my respectful opinion remove themselves from their bishop’s oversight and the diocesan structure and retain the right to use properties that are held for purposes of Anglican ministry in Canada.

An excellent longer summary of the court's decision has been prepared by Lexology. (See prior related posting.)

Recent Articles, Book and DVD of Interest

From SSRN:

• Arnold Reisman, On Two Shoah Books Addressing Jews in Muslim Lands, (November 28, 2010).
• Robert A. Kahn, A Margin of Appreciation for Muslims? Viewing the Defamation of Religions Debate Through Otto-Preminger-Institut v. Austria, (U of St. Thomas Legal Studies Research Paper No. 10-27, 2010).
• Jeremy Waldron, The Image of God: Rights, Reason, and Order, (November 30, 2010).
• Ran Hirschl, Comparative Constitutional Law and Religion, (The Research Handbook in Comparative Constitutional Law, Tom Ginsburg and Rosalind Dixon, eds., Edward Elgar, 2011).

From SmartCILP:

• Robert MacCulloch & Silvia Pezzini, The Roles of Freedom, Growth, and Religion in the Taste for Revolution [Abstract], 53 Journal of Law and Economics 329-358 (2010).
• Catherine M.A. McCauliff, Religion and the Secular State [Abstract], 58 American Journal of Comparative Law 31-49 (2010).
• Mark Strasser, Passive Observers, Passive Displays, and the Establishment Clause,14 Lewis and Clark Law Review 1123-1157 (2010).
• Jennifer Wacek, The Multivocal Shari'a in History and Literature, 28 Wisconsin International Law Journal 299-324 (2010).

Recent Book:

• Timothy Lubin, Donald R. Davis Jr and Jayanth K. Krishnan (eds.), Hinduism and Law: An Introduction, (Cambridge Univ. Press, Oct. 2010).

New DVD:

• Christian J. Pinto, The Hidden Faith of the Founding Fathers, (Adullam Films, Oct. 2010), reviewed by OpEd News.

Is It Constitutional for New York to Criminalize Clergy's Performing Wedding With No Civil License For Couples?

A Forward article published last week raises the question of the constitutionality of New York's Domestic Relations Law, Sec. 17, which makes it a misdemeanor for any clergy member to "solemnize or presume to solemnize any marriage between any parties without a license being presented ... or with knowledge that either party is legally incompetent to contract matrimony." The article reports on the case of Yehuda Semel, who obtained a Jewish religious divorce from his wife. However their civil divorce proceedings are still pending in the courts.  Nevertheless, Semel has married another woman in a religious ceremony without obtaining a civil marriage license.  Most rabbis oppose performing a religious marriage ceremony where there has not been a civil divorce. Commentators argue, however, that it is a violation of the 1st Amendment for the state to make it illegal for a rabbi to perform a purely religious ceremony. It was not unusual before a 1983 change in the Social Security Law that preserved benefits for widows who remarry, for rabbis to perform a religious ceremony for a couple otherwise eligible to marry but who did not obtain a civil marriage license to avoid the woman's loss of her Social Security benefits. There was a Yiddish phrase for that type of marriage-- stile chupa (a "quiet marriage").

Recent Prisoner Free Exercise Cases

In Countryman v. Garcia, 2010 U.S. Dist. LEXIS 125699 (D NV, Nov. 15, 2010), a Nevada federal district court allowed a Native American inmate to proceed with his claims that he was not permitted to perform daily prayers and was deprived of various items of religious property needed to perform rituals that are central to his Native American faith.

In Jones v. Burk, 2010 U.S. Dist. LEXIS 126742 (ED CA, Dec. 1, 2010), a California federal magistrate judge recommended dismissing an inmate's claim that he was denied access to a prayer rug, a copy of the Qur'an and a Muslim cleric.

In Graham v. Fortier, 2010 U.S. Dist. LEXIS 126814 (D NH, Nov. 15, 2010), a New Hampshire federal magistrate judge permitted an inmate to move ahead with allegations that her rights under the free exercise clause and RLUIPA were violated when restrictions on leaving the Closed Custody Unit after 6:00 p.m. prevented her from attending Hope Tabernacle services that were held only on Sunday evenings. However the magistrate recommended dismissal of plaintiff's claim that her rights were also infringed when she could not attend a spiritually-based Alcoholics Anonymous program called Breaking the Chains because it is held only on Tuesday evenings.

In Gutierrez v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 127315 (D AZ, Nov. 15, 2010), an Arizona federal district court rejected an inmate's challenge to a prison policy that prohibits Catholic chaplains from bringing in sacramental wine.

Feliciano v. Burset, 2010 U.S. Dist. LEXIS 127485 (D PR, Dec.2, 2010) is a lengthy opinion growing out of a 30-year history of challenges to prison conditions in Puerto Rico. As a small part of its opinion finding that food service conditions violate the Eighth Amendment because they create an unreasonable risk of malnutrition, food-borne illness and medical complications, the court observed that: "the failure to maintain any consistent program for providing special diets also causes the failure to honor diet restrictions imposed by an inmate's religion implicating Plaintiffs' First Amendment free exercise rights."

Hispanic Congregation Sues Illinois City In Zoning Dispute

According to a Christian News Wire press release, a Hispanic congregation has filed a federal lawsuit against the city of Burbank, Illinois in a dispute over its attempt to use a historic, but now-deteriorating, former restaurant building as a church. Rios de Agua Viva alleges statutory as well as 1st and 14th Amendment violations, claiming that the city is maliciously attempting to change the zoning code to undercut the church's contractual arrangement to occupy the former Old Barn Restaurant. The church contends that the city is violating RLUIPA by requiring it to apply for a special use permit, but not imposing similar requirements on non-religious assembly uses.

Atlanta Suburb Challenged On Use of Mega-Church for Graduation Ceremonies

An Atlanta (GA) suburb-- Cherokee County-- is facing objections from Americans United for Separation of Church and State to the county school district's practice of holding its graduation ceremonies in a local mega-church. The First Baptist Church in Woodstock, Georgia seats 5,000 people and charges the school board only $2,000 for use of the building. According to today's Atlanta Journal Constitution, a comparable secular venue would cost up to $40,000 to rent. Using the school's own gym would limit the number of people who could attend. On Thursday, the Cherokee School Board voted to table a motion on the graduation site so that the three new incoming school board members can take part in the decision. Americans United says that it plans to make similar requests of other metro Atlanta school boards.

Record Clergy Abuse Award Includes Liability On Parish

The New York Times reports that last Wednesday a jury in Delaware decided on the largest compensatory damage award yet in a clergy sexual abuse case-- $30 million to a man who was abused more than 100 times by a Catholic priest.  Also, unlike most other clergy abuse cases, the jury decided that a portion of the damages-- $3 million-- is to be paid by St. Elizabeth parish in Wilmington where the abuse occurred in the 1960's.  In most cases, damages are awarded against the diocese or religious order, not the parish. However the Wilmington Catholic Diocese has filed for bankruptcy (see prior posting) and therefore there is a stay on all litigation against it. On Monday the jury will hear testimony on punitive damages. [Thanks to Pew Sitter for the lead.]

White House Hosts Kosher Hanukkah Reception; National Menorah Lit On Ellipse

Last night President Obama and the First Lady hosted a Hanukkah party in the East Room of the White House. The Chicago Sun-Times reports that some 500 people attended, including Rabbi Capers C. Funnye, Jr. who is Michelle Obama's cousin. Among others attending were the three Jewish U.S. Supreme Court Justices-- Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. In remarks (full text; video of remarks) the President said:

[A]s we prepare to light another candle on the menorah, let us remember the sacrifices that others have made so that we may all be free. Let us pray for the members of our military who guard that freedom every day, and who may be spending this holiday far away from home. Let us also think of those for whom these candles represent not just a triumph of the past, but also hope for the future -- the men, women and children of all faiths who still suffer under tyranny and oppression.

The White House program also included a tribute to Jewish-American composers by the U.S. Marine Chamber Orchestra.  The menu for the evening-- reported in elaborate detail by the White House-- included this information about the strict level of kosher supervision involved: "All meats are Glatt Kosher--Chassidishe Shechitah. All baked goods are Pas Yisroel. All wines are Mevushal. All foods have been prepared Lemihadrin with a Mashgiach Temidi."

On Wednesday evening, the National Menorah was lit on the Ellipse near the White House in a ceremony that included performances by violinist Itzhak Perlman and the U.S. Navy Band.  WTOP News reported that participants braved a cold wind as the first candle was lit with help from Office of Management and Budget Director Jack Lew, the highest ranking Jewish member of the President's cabinet. The National Christmas Tree will join the Menorah on the Ellipse on Dec. 9.

Summary Judgment Denied In Refusal To Hire Creationist As Observatory Director

In Gaskell v. University of Kentucky, (ED KY, Nov. 23, 2010), a Kentucky federal district court refused to grant summary judgment to either side in a Title VII employment discrimination case brought by an astronomer who applied, but was rejected, for a position at the University of Kentucky as director of the University's new astronomical observatory.  Martin Gaskell, who was highly qualified for the position, was not hired after the search committee discovered links on Gaskell's personal website to lecture notes reflecting his creationist views. His personal website was linked to his University web page. Gaskell claims the University violated Title VII of the 1964 Civil Rights Act by using religion as a motivating factor in refusing to hire him. The University of Kentucky argues, on the other hand, that it did not consider his religion, but only his public comments about evolution which could impair his ability to serve effectively as Observatory Director. For example, one faculty member was concerned that hiring Gaskell for a position involving public outreach could create unwanted publicity particularly since the University is only 70 miles away from a controversial creationism museum. The case is covered by BNA Daily Labor Report (subscription required). [Thanks to Steven H. Sholk for the lead.]

Utah Supreme Court Hears Arguments On FLDS Bishops Intervention In UEP Reformation Proceedings

The Utah Supreme Court on Tuesday heard oral arguments (audio of full arguments) in In re: United Effort Plan Trust.  The appeal involves the attempt by two bishops of the FLDS Church to intervene in proceedings in which a state trial court is reforming the terms of a trust that holds land of FLDS members. The trial court refused to permit intervention, saying that potential beneficiaries of charitable trusts have no right to make claims on the trusts. (See prior posting.) AP reports that the bishops' case is complicated by the fact that two weeks ago the trial court allowed the Corporation of the President-- the legal entity that constitutes the FLDS Church-- limited status to present its views in the case.  However the bishops argue that only they are charged with tending to the temporal needs of FLDS members.

8th Circuit: Religion Did Not Influence Trial Judge's Sentencing of Evangelist

In United States v. Hoffman, (8th Cir., Dec. 2, 2010), the 8th Circuit Court of Appeals upheld the conviction and 175 year sentence imposed on evangelist Tony Alamo for Mann Act violations. (See prior posting.) The court rejected Alamo's argument that his sentence was improperly influenced by religious factors.  In sentencing Alamo, the trial judge said: "Mr. Alamo, one day you will face a higher and greater judge than me. May he have mercy on your soul."  The Court of Appeals concluded, however: "Nothing suggests that the district court's personal view of religion in any way influenced an aspect of Hoffman's sentence."  It said that because religion pervaded the entire trial of the evangelist on charges of taking underage girls across state lines for the purpose of sex, "it is ... not surprising that religion might have been mentioned at sentencing." The Washington Post yesterday reported on the decision.

Kyrgyz City Will Monitor Muslim Clerics

In Kyrgyzstan, the city council in Osh has set up a new commission made up of religious leaders and law enforcement officials to monitor Islamic clerics in the city.  Central Asia Newswire yesterday quoted a source who said: "The decision has been prompted by clerics' frequent and not always positive interference in social and political developments, including the June tragic riots and failed terrorist attacks." Friday prayers will be permitted only at a few mosques in the city.

Supporters of Prop 8 Seek Recusal of 9th Circuit Judge

As the U.S. 9th Circuit Court of Appeals moves to hear arguments next week in the lawsuit challenging the constitutionality of Proposition 8, California's ban on same-sex marriage, supporters of Prop 8 have filed papers seeking to have one of the judges on the appellate panel disqualify himself.  AP reports that in a filing with the court, appellants say that Judge Stephen Reinhardt's impartiality is open to question. The judge's wife, Ramona Ripston, is head of the Southern California chapter of the ACLU and in that role has been an outspoken opponent of Prop 8.  Also the ACLU has filed an amicus brief in the case on behalf of plaintiffs who are challenging the law. Reinhardt has recused himself in past cases involving the Southern California ACLU.  In August a federal district court held Prop 8 to be unconstitutional. (See prior posting.)

UPDATE: The Silicon Valley Mercury News reports that on Thursday, Judge Reinhardt refused to disqualify himself from hearing the case, saying: "I will be able to rule impartially in this appeal, and I will do so." Backers of Prop 8 will not challenge that ruling. [Thanks to Alliance Alert for the lead.]

Illinois Passes Civil Union Bill

The Chicago Sun-Times reports that the Illinois legislature yesterday gave final approval to the Illinois Religious Freedom Protection and Civil Union Act. Gov. Pat Quinn has pledged to sign the bill which passed the House on Tuesday by a vote of 61-52-2 and the Senate on Wednesday by a vote of 32-24-1.  The statute provides for the state to license civil unions between either same-sex or opposite-sex couples and confirms that "a party to a civil union is entitled to the same legal obligations, responsibilities, protections, and benefits as are afforded or recognized by the law of Illinois to spouses...." (Sec. 20).  It also provides (Sec. 15) that:

Nothing in this Act shall interfere with or regulate the religious practice of any religious body. Any religious body, Indian Nation or Tribe or Native Group is free to choose whether or not to solemnize or officiate a civil union.

When signed by the governor, Illinois will become the sixth state to recognize civil unions.

Egyptian Court Reinstates Order Directing Coptic Church To Allow Remarriages

In Egypt on Tuesday, the State Council's Administrative Court rejected a challenge by the Coptic Church to the court's ruling last May that ordered the Church to allow divorced men to remarry even though the remarriage was not permitted under Coptic Christian religious law. Coptic doctrine allows men to remarry only in cases of adultery or a marriage that was based on deceit. The Court said that family formation is a constitutional right and takes precedence. (See prior posting.) In July, Egypt's Constitutional Court suspended the judgment so that the Church could challenge it. (See prior posting.) In Tuesday's ruling, according to Bikya Masr, the court reinstated its earlier ruling.

Kentucky Gives Tax Incentives To New Noah's Ark Theme Park

Kentucky Gov. Steve Beshear announced yesterday that, subject to approval by the state Tourism Development Finance Authority, the state will grant tax incentives that could total more than $37 million to developers of a new theme park, Ark Encounter. The park's centerpiece will be a 500 foot long replica of Noah's Ark, and will also feature an ancient walled city, a petting zoo, live animal shows featuring giraffes and elephants and a replica of the biblical Tower of Babel. The day-to-day operation of the park will be handled by Answers in Genesis, the group that operates the successful Creation Museum in northern Kentucky.  Mike Zorvath, co-founder of Answers in Genesis ministry says the mission of the new park is to dispel doubts that Noah could have fit two animals of every kind on his ark. The Lexington (KY) Leader-Herald reports that the Governor at a news conference yesterday rejected church-state concerns about the state subsidies, saying that the law does not allow the state to discriminate against a non-profit business on the basis of subject matter.  According to AP, Bershear said: "There's nothing even remotely unconstitutional about a for-profit organization coming in and investing $150 million to create jobs in Kentucky and bring tourism to Kentucky."  The park is expected to create 900 full- and part-time jobs and have an annual impact of over $200 million on the state's economy. It is expected to attract 1.6 million visitors in its first year. The site for the new park is apparently an area in Grant County south of Williamstown.

Workers Comp Denial Did Not Violate Free Exercise Rights

In Lippert v. Lumpkin, (OH App, Nov. 29, 2010), an Ohio appellate court rejected an employee's claim that his free exercise rights were violated when the state denied him unemployment compensation benefits after he was terminated for refusing to work at the employer's site rather than from home on Sundays. The court observed:

appellant offers no evidence addressing the sincerity of his beliefs or describing how the work schedule infringes upon his constitutional right to freely engage in his religion, other than stating that he irregularly attends church on Sunday. There is no evidence in the record describing the tenets of appellant's religion, the sincerity of his religious beliefs, whether Sunday church service is integral to his religious practices, or if no alternative means of worship are available such as services only being offered during his working hours on Sunday.... Moreover, there is no indication that appellant informed [his employer] that the new schedule would interfere with his religious practices.

As Hanukkah Begins, Palestinians Deny Jewish Origins of Western Wall; U.S. Responds

Tonight begins the eight-day Jewish festival of Hanukkah which commemorates the rededication of the Second Temple in Jerusalem by the Maccabees in 165 BCE. Last week, leading up to the holiday, the Palestinian Authority Ministry of Information published as an official paper a study claiming that the Western Wall is part of Al-Aksa Mosque and Haram al-Sharif, rejecting Jewish claims to the site that Jews revere as the remains of the wall that surrounded the original Temple courtyard.  According to the Jerusalem Post, the PA paper claims that Al- Buraq Wall (as the Western Wall is known to Muslims) is property of the Waqf and is owned by an Algerian- Moroccan Muslim family. The study claims: "This wall was never part of the so-called Temple Mount, but Muslim tolerance allowed the Jews to stand in front of it and weep over its destruction."

In a U.S. State Department press briefing yesterday (full text), Assistant Secretary William J. Crowley said:

[R]egarding a claim by a senior Palestinian official that the Western Wall is an Islamic Waqf, we strongly condemn these comments and fully reject them as factually incorrect, insensitive, and highly provocative. We have repeatedly raised with the Palestinian Authority leadership the need to consistently combat all forms of delegitimization of Israel, including denying historic Jewish connections to the land. As the United States has long maintained, the status of Jerusalem must be resolved in final status negotiations between the parties. We recognize that Jerusalem is a deeply important issue to Israelis and Palestinians, to Jews, to Muslims, and to Christians everywhere. We believe it is possible to reach an outcome that both realizes the aspirations of all parties for Jerusalem and safeguards its stature for the future.

Virginia Federal District Court Rejects Constitutional Challenges To Obama Health Care Law

Yesterday in Liberty University, Inc. v. Geithner, (WD VA, Nov. 30, 2010), a Virginia federal district court rejected a broad range of constitutional challenges to the Patient Protection and Affordable Care Act of 2009 (the Obama health care reform bill). In addition to broadly upholding the statute as a valid exercise of Congress' commerce clause power, Judge Norman K. Moon, in a 54-page opinion, also rejected free exercise and establishment clause challenges by various of the plaintiffs. On the commerce clause issue, the court wrote:

I hold that there is a rational basis for Congress to conclude that individuals's decisions about how and when to pay for health care are activities that in the aggregate substantially affect the interstate health care market.... [and] that the terms of health coverage offered by employers to their employees have substantial effects cumulatively on interstate commerce.

The court went on to reject Establishment Clause challenges to the Act's religious conscience exemption and its health care sharing ministry exemption. Both were seen as permissible religious accommodations. It also rejected plaintiffs' claim that the Act requires them to violate their sincerely held religious beliefs against facilitating, subsidizing, easing, funding, or supporting abortions.  The court said:

[Plaintiffs] fail to allege how any payments required under the Act ... would be used to fund abortion. Indeed, the Act contains strict safeguards at multiple levels to prevent federal funds from being used to pay for abortion services beyond those in cases of rape or incest, or where the life of the woman would be endangered.

Reuters reports on the decision. In a post by Stephanie Cutter, Assistant to the President, the White House reacted, saying: "In the weeks ahead, there will be additional court cases examining this matter and the health reform law. We can’t predict the outcome of each case, but we are confident that we will ultimately prevail in court and continue to deliver the benefits of reform to the American people."

Liberty Counsel, representing plaintiffs, issued a release saying that an appeal will be filed. Judge Moon's decision comes less than a week after the New York Times speculated in a lengthy article that another Virginia federal district court judge, Judge Henry E. Hudson,  in a separate case-- a challenge filed by the state of Virginia-- is likely to find the statute unconstitutional.

Final Approval Given In Settlement of Charges Against Ohio Science Teacher

The final chapter in the litigation involving Mt. Vernon, Ohio suspended middle school science teacher John Freshwater seems to have been written last week.  The Mount Vernon News reported yesterday that the Licking County Probate Court has approved on behalf of student Zachary Dennis a previously reported federal court settlement agreement under which Freshwater agreed to pay $300,000 to parents Stephen and Jennifer Dennis, another $150,000 for an annuity for student Zachary Dennis and $25,000 for legal fees.  The lawsuit grew out of widely-publicized charges that Freshwater taught creationism or intelligent design in class, told his class that anyone who is gay is a sinner, improperly used an electrostatic device to put a cross on the arm of a student, was excessively involved in the school's Fellowship of Christian Athletes and was insubordinate in failing to remove religious materials when ordered to do so by his principal. (See prior posting.) Originally school officials had also been sued, but it settled in 2009. (See prior posting.) A counter suit by Freshwater against the school board was dropped in October. (See prior posting.) [Thanks to National Center for Science Education for the lead.]

Michigan Officials File No Charges In Unusual Qur'an Burning Case

Sunday's Lansing (MI) State Journal carries an interesting article about prosecutors who decided not to file charges in an unusual Qur'an burning case. A 46-year old East Lansing, Michigan resident who was merely scraping by economically went out on the eve of this year's 9-11 anniversary, riding his mountain bike, and got drunk.  He says his wife doesn't allow him to get drunk in the house.  He carried with him a copy of the Qur'an. After he stopped 5 or 6 times for beer, he went down by railroad tracks, ripped pages out of the Qur'an and burned them. Then he rode by the local Islamic Center on his bike and tossed the burnt pages on the sidewalk. He bragged about what he did on Facebook, using as his profile picture one of the controversial Muhammad Danish cartoons. He turned himself in to police at his wife's urging, telling them that he was still "pissed off" about 9-11 and wanted to make a statement of disrespect.

East Lansing prides itself on being a diverse community However ultimately authorities decided not to file charges since the man-- still not identified publicly-- did not damage anyone else's property. He made no physical contact with anyone and the Qur'an he burned was his own. The only possible charges were ethnic intimidation (unclear on these facts) or littering (which would trivialize the incident). Charging the man would make his identity public for the first time. Lansing's assistant city attorney said he was also affected by the fact that police received e-mails from extremists on both sides. He asked: "Do we really want to endanger this person's life for a littering charge?" The local Islamic community has reluctantly accepted the prosecutors' decision. [Thanks to Ken Braithwaite for the lead.]

Pentagon's DADT Report Includes Consideration of Moral and Religious Objections

Today the Defense Department released its Report of the Comprehensive Review of the Issues Associated with a Repeal of "Don't Ask, Don't Tell". Overall the report concluded that "when coupled with the prompt implementation of the recommendations we offer ..., the risk of repeal of Don’t Ask, Don’t Tell to overall military effectiveness is low."  The Report gives significant attention to moral and religious objections to repeal. The Executive Summary of those concerns reports:

In the course of our review, we heard a large number of Service members raise religious and moral objections to homosexuality or to serving alongside someone who is gay.  Some feared repeal of Don’t Ask, Don’t Tell might limit their individual freedom of expression and free exercise of religion, or require them to change their personal beliefs about the morality of homosexuality.  The views expressed to us in these terms cannot be downplayed or dismissed.  Special attention should also be given to address the concerns of our community of 3,000 military chaplains.  Some of the most intense and sharpest divergence of views about Don’t Ask, Don’t Tell exists among the chaplain corps.  A large number of military chaplains (and their followers) believe that homosexuality is a sin and an abomination, and that they are required by God to condemn it as such.

However, the reality is that in today’s U.S. military, people of sharply different moral values and religious convictions—including those who believe that abortion is murder and those who do not, and those who believe Jesus Christ is the Son of God and those who do not—and those who have no religious convictions at all, already co-exist, work, live, and fight together on a daily basis.  The other reality is that policies regarding Service members’ individual expression and free exercise of religion already exist, and we believe they are adequate.  Service members will not be required to change their personal views and religious beliefs; they must, however, continue to respect and serve with others who hold different views and beliefs.

Within the chaplain community, the solution to this issue can be found in the existing guidance developed by and for our chaplains, which we believe should be reiterated as part of any education and training concerning repeal.  Those regulations strike an appropriate balance between protecting a chaplain’s First Amendment freedoms and a chaplain’s duty to care for all.  Existing regulations state that chaplains “will not be required to perform a religious role...in worship services, command ceremonies, or other events, if doing so would be in variance with the tenets or practices of their faith.”  At the same time, regulations state that “Chaplains care for all Service members, including those who claim no religious faith, facilitate the religious requirements of personnel of all faiths, provide faith-specific ministries, and advise the command.”

Extensive additional discussion of religious objections  is found at pp. 134- 136 of the Report and in the Findings from the Qualitative Research Tasks, pp. 2, 15, 22-23, 71-72, 125-26, 135-37.  The Report along with additional supporting material is available at a special DOD web page devoted to DADT. The New York Times reports generally on today's developments.

Federal Court Issues Preliminary Injunction Against Oklahoma Anti-Shariah Amendments

Yesterday an Oklahoma federal district court issued a preliminary injunction barring the Oklahoma State Board of Elections from certifying the election results for State Question 755-- the state constitutional amendment that would prevent Oklahoma courts from considering international law or Shariah law. (See prior posting.)  In Awad v. Ziriax, (WD OK, Nov. 29, 2010), the court found that plaintiff, a Muslim, has standing to challenge the amendment because he has suffered injury in fact:

Plaintiff has sufficiently set forth a personal stake in this action by alleging that he lives in Oklahoma, is a Muslim, that the amendment conveys an official government message of disapproval and hostility toward his religious beliefs.... [I]t would be incomprehensible if, as plaintiff alleges, Oklahoma could condemn the religion of its Muslim citizens, yet one of those citizens could not defend himself in court against his government’s preferment of other religious views.

Second, plaintiff claims that his First Amendment rights will be violated by the invalidation of his last will and testament which incorporates various teachings of Mohammed. 

The court went on to find that plaintiff's facial challenge to the amendment is ripe for review.  Finally the court concluded that plaintiff had made a strong showing of the likelihood of success on his Establishment Clause claim:

While defendants contend that the amendment is merely a choice of law provision that bans state courts from applying the law of other nations and cultures, regardless of what faith they may be based on, if any, the actual language of the amendment reasonably, and perhaps more reasonably, may be viewed as specifically singling out Sharia Law, conveying a message of disapproval of plaintiff’s faith....

Additionally, the Court finds that plaintiff has made a strong showing that the amendment will foster an excessive government entanglement with religion. Because, as set forth above, Sharia Law is not “law” but is religious traditions that differ among Muslims, the Court finds that plaintiff has shown that to comply with the amendment, Oklahoma courts will be faced with determining the content of Sharia Law, and, thus, the content of plaintiff’s religious doctrines.

The Oklahoman reports on the decision.

UPDATE: On Tuesday, the Oklahoma State Election Board voted to appeal the district court's ruling. (Fox News 11/30).

Indian Court Says Census Information On Religion of Public Figures Is Confidential

In India, the Punjab and Haryana High Court yesterday ruled that the 2005 Right to Information Act does not authorize disclosure of the religion that an individual listed on his or her census form. Law et al News reports that  the case grew out of a request by an individual for information about the religion listed by United Progressive Alliance Party leader Sonia Gandhi and her family members. Section 15 of the Census Act of 1948 protects the confidentiality of census records. The court held that the later Right to Information Act did not change that protection because the RTI Act excludes from disclosure information that has no relationship to any public activity or interest. The court rejected the argument that disclosure of information about the religion of leaders of the nation is in the public interest.

Brooklyn Cop Forces Rabbi To Write On the Sabbath

Yesterday's New York Post reports on a run-in between a 27 year old Orthodox rabbi and Brooklyn police when Rabbi Sholom Emert was stopped for jaywalking after sundown on Friday.  Because the rabbi could not carry on the Sabbath, he had no identification. He offered to show his ID to the police if they would accompany him home. The police officer instead told him that he must write down his name.  Writing also violates the Sabbath, but the rabbi complied under threat of otherwise being detained.  Rabbi Emert says this is the first time in his life that he has broken the Sabbath.

Traditional Marriage Group Cannot Intervene In DOMA Challenge

In Benson v. Alverson, (MN Dist Ct., Nov. 24, 2010), a Minnesota state trial court denied a motion filed by the Minnesota Family Council seeking leave to intervene in a lawsuit challenging Minnesota' Defense of Marriage Act.  Plaintiffs in the case are three same-sex couples and the minor children of one of the couples. The Council is organized to defend traditional marriage, based on Judeo-Christian principles. The court concluded that lobbying for a law does not give an organization a sufficient interest to be entitled to intervention as of right.  In addition, the court concluded that the Council lacks standing to intervene in the case:

[A]lthough the Council attempts to cloak its interest in the nomenclature of organizational injuries and interest, the alleged interest is simply the expression of a desire that the DOMA as written be obeyed. The Council believes that same-sex marriage would harm society, but the Court finds no precedent equating societal non-economic harm to a private organization's injury-in-fact.

The Council had argued that if DOMA is struck down, it will have to divert resources to a campaign to restore a ban on same-sex marriage.  Yesterday's Minnesota Independent reported on the decision.

Religion Clause Chosen In ABA Top 100 Blogs; Voting On For Top 12

I am pleased to announce that Religion Clause has been chosen this year by the American Bar Association as one of the top 100 legal blogs.  Readers can now vote among those 100 for the top twelve-- one in each of the categories designated by the ABA.  To vote for your favorites, click here or on the icon in the side bar.

Pakistan Court Temporarily Bars Pardon For Christian Woman Sentenced To Death For Blasphemy

In Pakistan today, the Lahore High Court issued a temporary stay barring Pakistani President Asif Ali Zardari from issuing a pardon to Aasia Bibi (also known as Aasia Noreen), a Christian woman who has been sentenced to death on blasphemy charges. (See prior posting.) Continental News and Sify News report that the order comes after Bibi filed a clemency appeal with the President through the Governor of Punjab, Salman Tasseer. Tasseer, who believes the charges against Bibi were fabricated, assured her of a sympathetic response. However hard line Islamic parties began protests against the governor and any pardon. The court ruled that because the case was still in the courts, any pardon would be premature, and ordered the President and the Punjab governor to reply by December 6 when another hearing is scheduled.

Utah High Court Won't Block Jeffs' Extradition To Texas

Last week, the Utah Supreme Court refused to block the extradition of FLDS leader Warren Jeffs to Texas to face bigamy and sexual assault charges.  Washington Post  and Deseret News reported last week that the Utah high court issued a brief order lifting the stay on extradition that had been imposed by the Court of Appeals and cleared the way to implement the extradition agreement signed by the governors of Utah and Texas. Jeffs has previously been convicted of rape as an accomplice in Utah, but the Utah Supreme Court reversed the conviction because of faulty jury instructions. (See prior posting.) Jeffs argued that extradition while his case is on remand to the trial court will deny him a speedy trial. He also objected to provisions in the extradition agreement that would deny him bail in Texas. [Thanks to Modern Pharisee for the lead.]

All-Day Holiday Music Will Play Again This Year In Arizona Jail

In Phoenix, Arizona, Sheriff Joe Arpaio plans again this year to play Christmas music over speakers in his county jail for 12 hours a day. The Washington Times reports that the music will begin today with the playing of "Rudolph the Red Nosed Reindeer", Frosty the Snowman" and "Feliz Navidad.".  The sheriff has prevailed in six lawsuits-- most recently in December 2009-- in which inmates challenged the practice as a violation of their religious rights and as cruel and unusual punishment. So again this year, 8,000 inmates will hear multi-ethnic and culturally diverse holiday music all day during the holiday season. Apparently they can avoid the music only by remaining in their cells. (See prior posting.)

Recent Articles and Books of Interest

From SSRN:

Religious Law:

• Mohammed Khnifer, Maslaha and the Permissibility of Organized Tawarruq, (Opalesque Islamic Finance Intelligence, No. 8, p. 6-11, April 27. 2010).
• Rahul Shrivastava, Co Parcenary Rights of Daughters in Hindu Coparcenary In the light of Judgment of The Supreme Court Of India in: B Chandrashekhar Reddy v. State of Andhra Pradesh AIR 2003 SC 2322, (November 19, 2010).
• Mohammad Fadel, Is Historicism a Viable Strategy for Islamic Law Reform? The Case of 'Never Shall a Folk Prosper Who Have Appointed a Woman to Rule Them', (November 21, 2010).
• Mohammad Fadel, 'No Salvation Outside Islam': Muslim Modernists, Democratic Politics, and Islamic Theological Exclusivism, (November 21, 2010).

Non-U.S. Religious Institutions:

• Mitchell Landrigan, Voices in the Political Wilderness – Women in the Sydney Anglican Diocese, (Alternative Law Journal, Vol. 34, No. 3, 2009).
• Melissa A. Crouch, Implementing the Regulation on Places of Worship in Indonesia: New Problems, Local Politics and Court Action, (Asian Studies Review, Vol. 34, pp. 403-419, December 2010).

Same-Sex Marriage:

• Clifford J. Rosky, Just the Facts? Rethinking Same-Sex Marriage Law in Perry v. Schwarzenegger, (November 22, 2010).
• Wilson Ray Huhn, The Fourteenth Amendment Protects the Right to Same-Sex Marriage, (University of Akron Legal Studies Research Paper, Nov. 21, 2010).

Establishment and Free Exercise Issues:

• Steven Douglas Smith, Nonestablishment, Standing, and the Soft Constitution, (San Diego Legal Studies Paper No. 10-045, Nov. 22, 2010).
• Kevin Paul Lee, Free Exercise and Religious Mania: Neuroscience and Religious Free Exercise, (September 28, 2010).
• Lorenzo Zucca, The Classroom as a Tolerance Lab, (Law, Religious Freedoms and Education in Europe, Myriam Hunter Henin, ed., Ashgate, Forthcoming).
• Rose Jade, Current Research on the Human Experience of Spirituality Following the Ingestion of ‘Magic’ Psilocybin Mushrooms: An Annotated Bibliography for Social Workers and Other Health Care Professionals, (November 23, 2010).
• Deana Pollard-Sacks, Snyder v. Phelps, the Supreme Court's Speech-Tort Jurisprudence, and Normative Considerations, (Yale Law Journal Online, Forthcoming).

From SmartCILP and elsewhere:

• Michael J. Bazyler & Seth M. Gerber, Litigating the Pillage of Cultural Property in American Courts: Chabad v. Russian Federation and Lessons Learned, 32 Loyola L.A. International and Comparative Law Review 45-82 (2010).
• Jennifer Gerarda Brown, "For You Also Were Strangers in the Land of Egypt": How Procedural Law and Non-Law Enable Love for "Strangers" and "Enemies," 28 Quinnipiac Law Review 667-690 (2010).
• Stanley A. Goldman, The Jew Who Met Himmler--and Other Stories, 32 Loyola L.A. International and Comparative Law Review 1-18 (2010).
• J.H.H. Weiler, Editorial: State and Nation; Church, Mosque and Synagogue-- the Trailer, 8 I-Con: International Journal of Constitutional Law 157-166 (2010).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, Oct. 2010 revision, in PLI Course Handbook for Tax Strategies for Corporate Acquisitions.

Recent Books:

• John A. Ragosta, Wellspring of Liberty: How Virginia's Religious Dissenters Helped Win the American Revolution and Secured Religious Liberty, (Oxford Univ. Press, April 2010).
• Daniel Williams, God's Own Party: The Making of the Christian Right, (Oxford Univ. Press, Sept. 2010).

Ban On Kosher Slaughter of Poultry In New Zealand Lifted After Disclosure of Improper Considerations By Agriculture Minister

According to today's Jerusalem Post, two days before a scheduled court trial on New Zealand's ban on kosher slaughtering, the parties have reached a settlement that allows kosher slaughter of poultry to resume. The government has also agreed to negotiate on kosher slaughtering of sheep. As a practical matter, kosher beef and most kosher mutton is imported from Australia anyway. The ban was put in place because of concern that kosher slaughtering takes place without the animals first being stunned. (See prior posting.) A temporary stay during pending litigation was entered in August. (See prior posting.)

According to today's New Zealand Herald, the government's change of heart came after it was disclosed in a High Court opinion released Friday that Agriculture Minister David Carter had a conflict of interest and improperly considered trade issues when originally imposing the ban. The opinion also indicated that Carter was unaware that kosher chicken could not be imported and that importing kosher lamb was very expensive.  Carter owns shares in two companies that export meat to Muslim countries.  New Zealand requires stunning of halal slaughtered animals, a practice to which some Muslims object. Officials of Silver Fern Farms, one of the  companies in which Carter holds shares, told Carter that their trade with Muslim countries would be adversely affected if the country allowed kosher slaughter to proceed without stunning, but required it for halal meat.

Hindu Group Seeks To Reclaim Religious Roots of Yoga

Today's New York Times carries a front page article on the efforts by the Hindu American Foundation to acquaint Americans with the Hindu religious foundations of yoga.  Its "Take Back Yoga" campaign has created a controversy over whether the roots of yoga pre-date Hinduism. Dr. Aseem Shulka, co-founder of the Hindu American Foundation, says that Hinduism has become a victim of "overt intellectual property theft" through yoga teachers who have commercialized the religion's spiritual wealth.

Recent Prisoner Free Exercise Cases

In Luke v. Willliams, 2010 U.S. Dist. LEXIS 123752 (D OR, Nov. 18, 2010), an Oregon federal district court dismissed an Intensive Management Unit prisoner's claims that correctional facility employees infringed his free exercise, RLUIPA and equal protection rights by interfering with his ability to practice Wicca. He alleged they denied him the ability to bring religious items into the prison yard, did not have a full time Wicca volunteer and denied him books from the general population Chapel Library and items from the Internet.

In Zajrael v. Harmon, 2010 U.S. Dist. LEXIS 123829 (D AR, Nov. 22, 2010), an Arkansas federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 123780, Nov. 10, 2010) and dismissed claims that an inmate's free exercise rights and his rights under RLUIPA were infringed when authorities confiscated from his cell religious books and study materials in excess of the number of books permitted for prisoners in administrative segregation.

In Stilton v. Albino, 2010 U.S. Dist. LEXIS 124717 (D NJ, Nov. 23, 2010), a New Jersey federal court rejected an inmate's free exercise claim that for 12 days he was denied access to his personal property, including his Bible.

Rabbi Hoping To Be First Jew Elected To Uganda's Parliament

The London Jewish Chronicle reported yesterday that in Uganda, a 41-year old rabbi hopes to become the first Jewish member of Uganda's parliament. Rabbi Gershom Sizomu, who grew up in the country under Idi Amin, hopes to win a seat in February's elections to represent the area of Bungonkho North in the city of Mbale.  Sizomu is a member of the Abayudaya Jewish community founded by a military chieftain 91 years ago. Sizomu's campaign is centered on raising medical standards.  His campaign manager is a Muslim.  Some supporters of Sizomu's Muslim opponent are using religion as an issue-- urging residents to vote for a fellow-Muslim and raising fears that Sizomu could convert many Muslims to Judaism.

British Teen Charged After Facebook Posting of Her Burning Qur'an

The London Guardian yesterday reported that a 15-year old girl from a town near Birmingham has been arrested on suspicion of inciting religious hatred after she posted on Facebook a video of her burning an English language translation of the Qur'an. She has been released on bail. The video has now been removed and the incident was reported to the girl's school where it took place with other students looking on.

Court Rejects Challenges By Members To Their Expulsion From Religious Organization

In Khan v. Fiji Jamaat-Ul Islam of America, (CA Ct. App., Nov. 23, 2010), a California appellate court rejected a challenge by two individuals to their expulsion from membership in a religious organization by the organization's board.  The court said:

Here, the lower court found that Fiji Jamaat’s evidence established a deliberative process that was religious in nature. Specifically, the court found that the decision to expel appellants was based on a consideration of whether appellants’ conduct was improper, unbecoming, or likely to endanger the interest of Fiji Jamaat based upon the religious beliefs of the organization. This presents an ecclesiastical question, and the court correctly refused to consider appellants’ contentions pertaining to the reasons for expulsion in greater depth. The trial court stated that Fiji Jamaat abided by the terms of the bylaws for termination of membership, provided adequate notice of the charges brought against appellants, and afforded them an opportunity to be heard.

Atheist and Catholic Groups Compete Over Holiday Displays

A press release from American Atheists issued on Tuesday describes the latest jousting over holiday displays between the Atheist group and a Catholic organization that wants nativity scenes displayed this year in all 50 state capitols:

The Catholic League for Religious and Civil Rights announced over the weekend that it was purchasing and shipping the displays along with a letter to every governor claiming that the crèches would pass constitutional muster. League President Bill Donohue added that this was in reaction to a huge American Atheists billboard going up on November 27 at the entrance to the Lincoln Tunnel. The sign depicts the Christian nativity and Star of Bethlehem, declaring "You KNOW It's a Myth!"...

"The fact that the League is paying for the crèches does not automatically make them constitutional," said [AA President David] Silverman. "The governors will also have to welcome in a variety of secular displays -- and American Atheists feels that it is appropriate that they also have the opportunity to include something from Atheists and other non-believers."..... "We are offering to send every governor a placard with a reproduction of our [Lincoln Tunnel] billboard, and letter asking for 'equal time' in the public square next to the Catholic League display." ... [This will] test the commitment of state governments to Supreme Court guidelines on the matter, and free speech.

UPDATE: UPI shows a photo of the small creche that the Catholic League has sent to each governor for display in the capitol rotunda next to its Christmas tree. The League also informed each governor that its monthly journal Catalyst has published the names of each governor's chief of staff so readers can contact them if the creche does not appear.

White House Receives Report Urging More Faith-Based Involvement In Health and Development

On Tuesday, over 80 religious leaders and Obama administration officials gathered at the White House to receive a report from the newly formed Global Initiative for Faith, Health and Development. (OFNP Press release .) An 83-member international task force prepared the report which lays out a framework for engaging faith communities in advancing the cause of health and development. (Center for Interfaith Action press release.) The report, Many Faiths, Common Action: Increasing the Impact of the Faith Sector on Health and Development, among other things, recommends increasing collaboration within the faith community and with secular actors.

On a related matter, the White House announced that next Monday, First Lady Michelle Obama will host a conference call with faith and community leaders to obtain their involvement in her Let's Move! campaign to end childhood obesity.

Facebook Helps Israeli Army Find Women Falsely Claiming Religious Military Exemption

In Israel last Monday two Knesset (Parliament) committees held hearings on the exemption from military service granted to religiously observant Jewish women under present law.  According to the Jerusalem Post, women may obtain an exemption by signing a declaration that they maintain a religious life style, including not traveling on the Sabbath and eating only kosher food.  35% of Jewish women have signed such a declaration, but the army estimates that thousands of these are false.  Army investigators have used innovative techniques to discover the women who have filed false declarations according to committee testimony from Brig.-Gen. Amir Rogovsky.  Through Facebook, IDF investigators have discovered 1000 women who have lied. Some of the women posed for Facebook photos in immodest clothing that would not be worn by Orthodox women. Another woman was shown in a Facebook photo eating at a non-kosher restaurant. Investigators also sent invitations to Friday night parties to some women and caught those responding that they would attend.

Quebec Court Permits Class Action In Clergy Sex Abuse Case

In the Canadian province of Quebec, a Superior Court judge has for the first time in Quebec approved the filing of a class action on behalf of clergy sex abuse victims. Yesterday's Montreal Gazette reports that the suit has been brought against a religious order, Congregation du Tres-Saint-Redempteur, on behalf of all students of Seminaire Saint-Alphonse, in Ste. Anne de Beaupre, who were sexually abused by priests between 1960 and 1987. At least five priests, including the school's former director were involved. The suit alleges that the priests planned among themselves which boys would be victims.

Florida County Sues Homeowners Association Charging Religious Discrimination

On Tuesday, Hillsborough County, Florida filed a federal lawsuit against the Lake St. Clair Homeowners Association in Apollo Beach charging discrimination against an Orthodox Jewish homeowner who was a member of the association.  According to today's St. Petersburg (FL) Times, the lawsuit charges that in 2005 current homeowners association president James Knott told resident Richard D. First: "Your kind of people are not welcome here."  More recently in response to a request by First to see homeowner association records, First was told by Knott that board members were available only on Friday afternoons and Saturdays-- timing that would violate First's observance of the Sabbath. Knott denies charges of discrimination, saying that "First likes to run his mouth" and has "turned ... people off."

Iranian Christian Pastor Sentenced To Death For Apostasy

According to BosNewsLife, in Iran on Tuesday the 11th Chamber of the Assize Court in Gilan province sentenced Christian pastor Yousef Nadarkhani to death by hanging for apostasy.  Nadarkhani was born a Muslim, but converted to Christianity at age 19.  He has organized a house church and evangelical meetings inviting others to convert to Christianity. He was arrested after protesting enforced reading of the Qur'an.  Under Iranian law, the defendant has 20 days from the date the written verdict is handed donw to appeal to the Supreme Court.  No one has been executed for apostasy in Iran since 1990.

President Obama Issues Thanksgiving Proclamation

On Tuesday the White House issued a Presidential Proclamation declaring today as a "National Day of Thanksgiving." The Proclamation reads in part:

Thanksgiving Day is a time each year, dating back to our founding, when we lay aside the troubles and disagreements of the day and bow our heads in humble recognition of the providence bestowed upon our Nation.... 

In confronting the challenges of our day, we must draw strength from the resolve of previous generations who faced their own struggles and take comfort in knowing a brighter day has always dawned on our great land. As we stand at the close of one year and look to the promise of the next, we lift up our hearts in gratitude to God for our many blessings, for one another, and for our Nation. This Thanksgiving Day, we remember that the freedoms and security we enjoy as Americans are protected by the brave men and women of the United States Armed Forces....

This harvest season, we are also reminded of those experiencing the pangs of hunger or the hardship of economic insecurity.

Vatican Objects To Ordination In China

As reported by CNS, yesterday the Vatican issued a statement (full text) denouncing China for ordaining Rev. Joseph Guo Jincai without consent of the Vatican. Dozens of government officials attended the Mass at which 8 current bishops participated in the ordination. Emphasizing that it had clearly communicated its objections to the ordination to Chinese authorities several times this year, the Vatican said:

in recent days, various bishops were subjected to pressures and restrictions on their freedom of movement, with the aim of forcing them to participate and confer the episcopal ordination. Such constraints, carried out by Chinese government and security authorities, constitute a grave violation of freedom of religion and conscience. The Holy See intends to carry out a detailed evaluation of what has happened, including consideration of the aspect of validity and the canonical position of the bishops involved.

7th Circuit: Baha'i Groups Not Bound By Old Trademark Injunction

In National Spiritual Assembly of Baha'is of the United States of America Under the Hereditary Guardianship, Inc. v. National Spiritual Assembly of Baha'is of the United States of America, Inc., (7th Cir., Nov. 23, 2010), the 7th Circuit Court of Appeals refused to apply a 1966 injunction in a trademark infringement case to defendant religious groups finding that they were not in sufficient privity with the original defendants to be covered by the 40-year old injunction. At issue is the use of the Baha'i name by break-away U.S. Baha'i groups.

UPDATE: The case is discussed at greater length at Baha'i Rants.

Apartments Not Covered By Historic Preservation Exemption For Religious Property

In Or Khaim Hashalom v. City of Santa Monica, (CA App., Nov. 22, 2010), a California appellate court held that an apartment complex did not qualify for the exemption from historic preservation designation granted by state law to non-commercial property owned by a religious organization.  OKH, which incorporated as a religious organization several months after acquiring the building (and after landmark designation proceedings had begun) had applied to demolish it and use the land for housing for Jewish refugees from Iran and Iraq.  The court concluded that the property has always been a commercial enterprise and so is not covered by the exemption. The court said that the exemption is limited to property used for a religious institution's mission before the religious institution seeks to invoke the exemption.

OSCE Releases 2009 Hate Crimes Report

Yesterday the Organization for Security and Cooperation in Europe released its 2009 report on "Hate Crimes in the OSCE Region-- Incidents and Responses."  A release from Human Rights First called hate crimes a "serious challenge" for governments in the region.  Separate chapters in the report cover racist and xenophobic crimes and incidents; actions against Roma and Sinti; anti-Semitism; anti-Muslim actions; incidents against Christianity and other religions; and crimes against LGBT individuals and against the disabled.

No Private Action Under Federal Statute Barring Discrimination Against Health Care Workers

In Cenzon-DeCarlo v. Mount Sinai Hospital, (2d Cir., Nov. 23, 2010), the U.S. Second Circuit Court of Appeals held that there is no private right of action for either damages or inunctive relief under the federal statute barring discrimination in employment against health care workers who refuse to participate in sterilization or abortion procedures.  42 USC Sec. 300a-7(c) (the Church Amendment) bars recipients of federal funds from refusing to hire or promote, or from firing, employees with conscientious objections to such participation. Plaintiff, an operating room nurse, claimed she was coerced by her supervisors into participating in a late-term abortion procedure. The court concluded that the language of the statute does not indicate a Congressional intent to create a private remedy. [Thanks to Steven H. Sholk for the lead.]

Court Rejects Free Exercise Defense To Khat Possession Conviction

In State of Minnesota v. Ahmed, (MN Ct. App., Nov. 23, 2010), a Minnesota appellate court upheld defendants' convictions for possession of khat.  Finding that khat is a controlled substance, the court rejected defendants' free exercise defense.  It held that the U.S. Supreme Court's 2006 O'Centro decision is distinguishable.  It involved an interpretation of the federal Religious Freedom Restoration Act, and that statute is inapplicable to the states. Yesterday's Minneapolis Star Tribune reports on the decision.

TRO On Oklahoma Anti-Shariah Amendment Extended For A Week

After a two hour hearing yesterday, an Oklahoma federal district judge extended for another week the previously issued temporary restraining order (see prior posting) barring Oklahoma election officials from certifying the ballot results on a state constitutional amendment that precludes courts from considering Shariah law or international law in reaching decisions. The Oklahoman reports that plaintiffs are seeking a temporary injunction to prevent State Question 755 from taking effect, arguing that it targets Islam. The state argued that the purpose of the amendment is to prevent courts from using precepts of other nations or cultures in their decisions.

Montana High Court OK's Valedictorian's Religious References

In a 6-1 decision last week, the Montana Supreme Court held that school officials violated the free speech rights of a graduating senior when it censored on the basis of viewpoint her proposed valedictory remarks.  In Griffith v. Butte School District No. 1, (MT Sup. Ct., Nov. 19, 2010), school officials objected to the religious references in following passage in the prepared remarks of one of the co-valedictorians:

I learned to persevere these past four years, even through failure orndiscouragement, when I had to stand for my convictions. I can say that my regrets are few and far between. I didn’t let fear keep me from sharing Christ and His joy with those around me. I learned to impart hope, to encourage people to treat each day as a gift. I learned not to be known for my grades or for what I did during school, but for being committed to my faith and morals and being someone who lived with a purpose from God with a passionate love for Him.

The majority rejected any Establishment Clause conerns about the propoed seech, saying:

We find it unreasonable for the School District to conclude that Griffith’s cursory references to her personal religious beliefs could be viewed by those in attendance at the BHS graduation ceremony as a religious endorsement by the School District.

Justice Leaphart dissenting argued that the student's proposed remarks created Establishmnet Clause concerns:

Attendance at high school graduation is compulsory. The speakers chosen by the school clearly have a “captive” audience. The student body of a public school is presumably very diverse with a mix of Christians, Jews, Muslims, atheists, and agnostics, many of whom would resent being required to attend a ceremony in which Christ and His Joy was being shared with those present in the captive audience.

The Missolian reports on the decision.