DADT Repeal Passes House, Goes To Senate

Yesterday, by a vote of 250- 175, with 9 members not voting, the U.S. House of Representatives passed, and sent to the Senate, HR2965 [corrected]-- the Don't Ask Don't Tell Repeal Act of 2010.  The bill provides for ending of DADT 60 days after the President, the Secretary of Defense and the Chairman of the Joint Chiefs of Staff certify that implementation is consistent with military effectiveness and readiness, unit cohesion and recruiting and retention. According to the Washington Post, the Senate, where passage seems likely, will not vote on the bill until next week at the earliest.

Indonesian Court Sentences American For Pulling Plug On Mosque Loud Speakers

AFP yesterday reported that a court in Indonesia has sentenced Gregory Luke, a 64-year old American who runs a guest house for tourists on Lombok Island, to five months in jail for blasphemy, carrying out an act of violence and hampering people in Kute village from performing their religious activities. The court found that in August during Ramadan, Luke pulled the plug on loud speakers used by the local mosque to broadcast the call to prayer. Luke has denied doing so, saying he went to the mosque to ask them to lower the volume when a group of local youths attacked him and ransacked his home with the police looking on. Luke says he is "satisfied" with the judge's ruling. Prosecutors had sought a 7-month sentence.

Federal Court Issues TRO To Prevent Sale and Subdivision of FLDS Property

According to KCSG TV, a Utah federal district court on Tuesday issued a temporary restraining order prohibiting a state-court appointed trustee from selling certain land belonging the the FLDS United Effort Plan Trust. Refusing to grant the broad injunction against all trust management activity requested by FLDS (see prior posting), Judge Dee Benson instead barred sale of Berry Knoll Farm, a site that FLDS members have set aside for a future temple, and barred subdividing land in Hildale, Utah and Colorado City, Arizona. He also barred any other action that might cause irreparable harm to the trust or FLDS members while the court decides on the constitutional challenge to the action of Utah in seizing control of the UEP Trust and moving to reform the trust which holds land of members of the polygamous FLDS sect.

Judge Accepts Claim That Festivus Requires Kosher Meals Until Hoax Is Discovered

The New York Post yesterday carried a report on a fabricated free exercise claim in Orange County, California's jail several months ago.  The story has been making the rounds online for several days, but the Post's coverage is the first that seems to create an coherent chronology.  In April, Malcolm Alarmo King was sentenced on drug charges.  King wanted to obtain kosher meals, rather than the salami that was often served in jail, because he thought kosher meals were healthier and would allow him to maintain his physique. When King's lawyer asked the sentencing judge to order kosher meals-- which cost the jail more than other meals-- the judge said he could order them only if he had a religion to put down in the order. So King's attorney, Fred Thiagarajah, responded "Festivus," the artificial holiday popularized on the Seinfeld show. Dutifully, the judge issued an order that "the defendant is to receive a high protein no salami diet three times per day for 'Festivism'."  Apparently the Orange County Sheriff's Office did not realize what had happened until they looked up Festivus on Wikipedia. They then asked King what his religion was, and he responded "Healthism." It then took county lawyers several months to get the order overturned.  King was released in October, but he is now in federal custody pending a deportation hearing. He is suspected of being in the country illegally from Liberia. (Orange County Register).

Bishop Threatens To Withdraw Catholic Designation From Hospital Over Abortion Controversy

USA Today reports that Bishop Thomas J. Olmsted, Catholic Bishop of Phoenix, Arizona, is threatening to remove the Catholic affiliation of Phoenix's St. Joseph's Hospital and Medical Center this Friday in a dispute over the hospital's actions to save the life of a pregnant woman earlier this year.  The hospital's ethics committee, including Sister Margaret McBride, approved terminating the pregnancy of a young woman who was near death from pulmonary hypertension, a condition made worse by hormones produced by the uterus during pregnancy. The Bishop subsequently denounced the procedure as an impermissible abortion.  In a Nov. 22 letter to the president of Catholic Healthcare West, St. Joseph's parent company, Olmsted demanded that Catholic Healthcare West acknowledge the hospital was wrong in its interpretation of the church's view on indirect abortions; that it submit to a diocesan review and certification; and that it agree to give its medical staff ongoing training on the U.S. Conference of of Catholic Bishop's Ethical and Religious Directives. The Diocese of Phoenix yesterday posted a release on its website indicating that the Bishop's letter was considered private and confidential, and indicating that it was continuing to work with the hospital and Catholic Healthcare West "to find the best way to provide authentic Catholic health care in accordance with the Church's teaching." Meanwhile a statement by St. Joseph's on its website stated they "continue to be in dialogue with Bishop Olmsted and we hope to achieve a resolution. We believe that all life is sacred. In this case we saved the only life we could save, which was the mother's."

Jail Booking Photo Without Hijab Approved Reluctantly

In a Boulder County, Colorado court, a judge has denied a request by a Muslim University of Colorado student to have her jail booking photo taken wearing a headscarf. The Boulder (CO) Daily Camera reported yesterday that Maria Hardman was sentenced to two days on a work crew for driving her scooter while under the influence of alcohol. When she reported to jail, authorities insisted she remove her hijab for her booking photo. She refused and her attorney filed in court for relief. The judge concluded that the jail's offer to allow her to have her photo taken in a private room accompanied only by a female staff member was a sufficient accommodation of her religious beliefs.  At the same time, the judge urged the sheriff's office to "reexamine whether their legitimate interests in recording useful identifying information and images of this defendant for this work crew sentence would truly he compromised by allowing her to take the booking photo with her scarf above her hairline and not obscuring her face."

Russian Regional Law Turns Confiscated Catholic and Lutheran Properties Over To Orthodox Church

Forum 18 reported yesterday on two laws enacted by the Duma in Russia's Kaliningrad Region at the end of October.  They provided for turning over to the Russian Orthodox Church various properties that had been confiscated years ago by Soviet authorities from the Lutheran and Catholic Churches. On Nov. 23, the head of the State Property Agency formally transferred two properties, and the Russian Orthodox Church promptly signed leases with the organizations now occupying the buildings allowing them to continue to do so. Holy Family Catholic Church currently houses the regional orchestra, while Queen Luise Lutheran Memorial Church is used by the puppet theater.  The controversial laws reflect the view of the Russian Orthodox Church that transfers of confiscated religious property should reflect the composition of the population of the area today and not be based on who built the places of worship. The Kaliningrad Region, formerly German East Prussia, was annexed by the Soviet Union during World War II and most of its ethnic German population was driven out.

Suit Charges Watch Wholesaler With Religious Discrimination Against Employee

The New York Daily News yesterday reported on the filing of a religious discrimination lawsuit in state court by the former vice-president for sales of Concepts in Time, a wholesale clock and picture frame store in Manhattan. The suit seems to be connected to a broader dispute between former employee Jamie Errico, a Catholic, and the wholesale company, owned by Saul Jemal, an Orthodox Jew. In April Jemal accused Errico of taking the company's confidential and proprietary information before leaving and going to work for a competitor.  Errico complains that Jemal would not let her wear a crucifix to work, even though Jewish employees wore stars of David. It also claims that while Jewish employees were allowed to take off early on the evenings of holidays, Errico's pay was docked when she did not show up on Christmas eve. Errico also complains that she was not allowed to make or sell watches with any kind of non-Jewish symbols, and says she was fired two weeks before Christmas of 2009. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Muslim Woman Sues Over Ban on Wearing Hijab In Court House

The ACLU of Georgia announced yesterday that it has filed a federal civil rights lawsuit against the city of Douglasville, Georgia and various city officials on behalf of a Muslim woman who who was told she could not enter a municipal courtroom where her nephew faced a traffic hearing unless she removed her hijab (religious headscarf). Plaintiff Lisa Valentine got into an argument with officers staffing the metal detector. They handcuffed Valentine and took her before the judge who sentenced her to ten days for contempt for creating a disturbance in the hallway and at the metal detector. She was not allowed to wear her hijab in the court holding cell or while being transported to jail. However after police reviewed the case, she was released that same evening and the judge rescinded the contempt order. The complaint (full text) in Valentine v. City of Douglasville, (ND GA, filed 12/14/2010) alleges that defendants violated RLUIPA as well as Valentine's 1st Amendment free exercise rights. It also alleges that her arrest without probable cause violated the 4th Amendment. The lawsuit seeks an injunction and damages. After the incident involving Valentine, the Municipal Court issued a local rule providing procedures for special arrangements when a head covering is needed for religious or medical reasons.

Report Focuses on Discrimination Against Christians In Europe

Last week, coinciding with an OSCE meeting in Vienna on Freedom of Religion, the Observatory on Intolerance and Discrimination Against Christians in Europe released a 39-page report (full text) covering a five year period and focusing on "instances in which Christians and Christianity are marginalized or discriminated against throughout Europe." Here is an excerpt from the Introduction to the report:

[E]ven if there are disputes amongst Christians, what we face all together are radical secularism and political correctness gone overboard, both of which limit fundamental freedoms.

Another common objection states, that what Christians encounter today is not intolerance or discrimination, but a process of losing historical privileges. Historical privileges, far from discriminating against other religious communities, are not necessarily bad, considering that they are, after all, historical and that no community exists void of a past with its own historically evolved identity and traditions. Full neutrality is impossible since even an empty white wall is a statement, especially if it is a consequence of the removal of the crucifix. One religious community holding privileges for historical reasons does not mean that others are being discriminated against – as long as their enshrined rights are protected.

To some extent the withdrawal of privileges from Christianity constitutes an unnatural break with history and identity and is an expression of hostility. This hostility does not stop at the removal of privileges. It causes marginalization and social exclusion, and it leads to the denial of rights of Christians. Equal rights for Christians are at stake.

The report concluded with a series of recommendations to European governments, the EU and international organizations. CNA yesterday summarized the report and reactions to it.

Battle Over Atheist Ads On Ft. Worth Buses

The New York Times reported yesterday on the battle over advertising signs on public buses in Ft. Worth, Texas. After an atheist group bought space on the outside of four city buses for signs reading "Millions of People are Good Without God," some businessmen arranged for a van that began following the buses around carrying signs that read "2.1 Billion People Are Good with God," and below it, "I Still Love You-- God." Black religious leaders in Ft. Worth have called for a boycott of buses, saying that the ads are a direct attack during the Christmas season. Others are urging the Ft. Worth Transportation Authority to ban all religious advertising on buses. Terry McDonald, chairman of the group Metroplex Atheists,says the bus ad was not intended to insult Christians, but was aimed at consoling atheists, adding: "It can be pretty lonely for a nonbeliever at Christmastime around here."

Dismissal Recommended In Challenge To Illinois Funding of Bald Knob Cross Renovation

In Sherman v. State of Illinois, 2010 U.S. Dist. LEXIS 131080 (CD IL, Dec. 10, 2010), an Illinois federal magistrate judge concluded that activist Robert Sherman lacks standing to bring an Establishment Clause challenge to a $20,000 renovation grant for Bald Knob Cross. The Illinois Department of Commerce and Economic Opportunity made the grant to Friends of the Cross to promote tourism to the Ozarks attraction. (See prior posting.) The court held that the Flast test for taxpayer standing was not met because the grant was made by the executive branch. It was not a specific legislative appropriation. The court, relying on Seventh Circuit precedent, also concluded that plaintiff's challenge became moot once the grant money was disbursed by the state to a private entity. The magistrate judge recommended the case be dismissed.

Polls Show Most Favor Religious Symbols on Public Property, Holidays in Schools

A Rasmussen poll released yesterday shows that 74% of adults surveyed believe that religious symbols such as nativity scenes, menorahs and Muslim crescents should be permitted on public property.  17% disagree.  80% of those surveyed favored celebrating religious holidays in public schools, while 14% do not.  The 80% figure is comprised of 43% who favor celebrating all religious holidays, and 37% who favor only celebrating some of them in the schools. A separate survey released a week ago by Rasmussen showed that 92% of Americans celebrate Christmas. Of those, 65% consider it a religious holiday while 28% say they celebrate it as a secular holiday.

Cert. Filed In Case On University Funding of Student Religious Groups

According to University of Wisconsin-Madison News yesterday, on November 30 the University of Wisconsin System Board of Regents filed a petition for certiorari seeking U.S. Supreme Court review in Badger Catholic, Inc. v. Walsh.  In the case, the 7th Circuit, in a 2-1 decision, invalidated a University of Wisconsin policy that withheld student activity fee funding for worship, proselytizing or religious instruction by recognized student groups. (See prior posting.)

DOJ Sues School District Over Its Refusal To Grant Unpaid Leave for Teacher's Hajj

The Justice Department announced yesterday that it has filed a Title VII religious discrimination lawsuit against the Berkeley, Illinois School District on behalf of a Muslim middle school teacher who was denied an unpaid leave that she requested so she could perform the Hajj. The school district denied the leave because it was not related to her professional duties nor was it for one of the reasons specified in the District's agreement with the teachers' union.  The lawsuit claims that the school district failed to reasonably accommodate the religious practices of teacher Safoorah Khan, causing her to lose her job when she chose to observe her religious obligations.  The suit seeks back pay, compensatory damages, reinstatement and a change in school district policies. According to the Justice Department's press release: "This is the first lawsuit brought by the Department of Justice as a result of a pilot project designed to ensure vigorous enforcement of Title VII against state and local governmental employers by enhancing cooperation between the EEOC and the Civil Rights Division."

Iraqi Christians Fleeing To North or Abroad

Today's New York Times reports that in Iraq a new wave of Christians are fleeing Baghdad and Mosul for protection in the Kurdish-controlled north, or abroad. The latest out-migration follows an October 31 attack on a Baghdad church that killed 51 worshipers and 2 priests, followed by bombings and assassinations targeting Christians. More than half of Iraq's Christian community has fled the country since 2003.

Controversy Continues Over National Portrait Gallery's Removal of Offending Video

Controversy continues (New York Times Op Ed 12/11) over the action two weeks ago by the National Portrait Gallery which removed a four minute video by the late artist David Wojnarowicz from an exhibit on sexual difference in American portraiture. The Dec. 1 Washington Post reported that the video titled A Fire in My Belly was removed from the Hide/Seek: Difference and Desire in American Portraiture exhibit after strong protests from Catholic League president William Donahue and the office of incoming House Speaker John Boehner over a portrayal in it of a small crucifix covered with ants.  Donahue called it "hate speech." Last Thursday, the Washington Post reported that James T. Bartlett, a member of the Museum's advisory panel, resigned over the decision to remove the video. A Q and A Release on the controversy posted on the Smithsonian's website last week says the action was taken "help focus attention on the central theme of the exhibition, which is portraiture and the representation of gay and lesbian identities in American art." Now Museum officials have been meeting with concerned staff.  According to the Washington Post: "Because the objections on Capitol Hill came initially from two powerful Republicans, John Boehner (R-Ohio) and Eric Cantor (R-Va.), and the Congress controls 70 percent of the Smithsonian's budget, employees said they feared to go public with their viewpoints."

Amish Victims of Investment Fraud Want To Administer Remaining Assets Instead of Bankruptcy Court

Yesterday's Columbus (OH) Dispatch reports that a member of central Ohio's Amish community, Monroe Beachy, has lost over half of the $33 million that 2,700 members of the Amish and Mennonite Church have given him to invest over the last 25 years, apparently in a fraudulent investment scheme.  Beachy has now filed for bankruptcy, but members of the Amish community have asked the court to dismiss the case and allow them to handle the matter internally within the Amish community-- including distribution of the $16.4 million in assets that the U.S. Trustee has recovered. They say that use of civil courts is forbidden by the Bible, and want to distribute the funds  based on "Christian principles of love and care for the poor and needy.”  Hundreds of investors have written the bankruptcy judge saying: "My participation as a creditor is abhorrent to deeply held spiritual principles on which my family and I have built our lives."  The U.S. Trustee opposes turning the case over to the Amish and says that religious beliefs are not a basis for dismissing the case.

Religious Talk Show Host's Comments on Gays Violated Canadian Broadcasting Standards

Last week the Canadian Broadcast Standards Council released the decision of its Ontario regional panel handed down in June relating to  the religious talk show Word TV (broadcast on CITS-TV, the Crossroads Television System in Ontario). (Full text of decision.)  While the panel cleared Word TV host Charles McVety of ethics charges relating to comments on several issues, it found that his comments about homosexuality violated the Canadian Association of Broadcasters Code of Ethics and its Equitable Portrayal Code. In particular the panel focused on four areas: he falsely claimed that the Ontario and Alberta Human Rights Commissions had a 100% conviction rate; he asserted that it is a crime to speak against homosexuality; he mischaracterized Ontario's revised school curriculum as one designed to teach homosexuality; and he mischaracterized gay pride parades as promoting sexual perversion and their advertising as promoting sex with children. The National Post reported Friday that in response to the decision, CTS has temporarily taken Word TV off the air. The CBSC decision requires CITS-TV to air a specified notice describing the decision once during prime time and once during the time slot in which Word TV was broadcast. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Omar Salah, Structuring Sukuk Al-Ijarah in the Netherlands, (TISCO Working Paper Series on Banking, Finance, and Services 08/2010, Nov. 26, 2010).
• Stephen Copp, A Theology of Incorporation with Limited Liability, (October 20, 2010).
• Christian J. De Ocejo, War Against God: How Iran Violates Islamic Law and What Human Rights Organizations Should Do About It, (December 3, 2010).
• Hassan Ahmad, Investigating Secondary Source Usage by Hanafi Jurists to Enhance Contemporary Relations in Muslim Minority Societies, (April 12, 2010).
• Pamela S. Karlan, Marriage, Method, and the Supreme Court, (Supreme Court Review, Forthcoming).
• Todd E. Pettys, Sodom's Shadow: The Uncertain Line Between Public and Private Morality, (Hastings Law Journal, Vol. 61, p. 1161, 2010).
• Jeremy Waldron, Secularism and the Limits of Community, (December 9, 2010).
• Todd E. Pettys, Letter from Iowa: Same-Sex Marriage and the Ouster of Three Justices, (Kansas Law Review, Forthcoming).

From SmartCILP:

• Paul E. McGreal, The Making of the Supreme Court's Free Exercise Clause Jurisprudence: Lessons from the Blackmun and Powell Papers in Bowen v. Roy, 34 Southern Illinois University Law Journal 469-532 (2010).
• Religious Legal Theory: The State of the Field. Articles by Robert K. Vischer, Mark L. Movsesian, John F. Coverdale, Michael V. Hernandez, Samuel J. Levine, Amelia J. Uelmen and David S. Caudill. 40 Seton Hall Law Review 845-990 (2010).

Poland Experiencing Rise In Secularism

The New York Times reported yesterday on growing secularization in Poland. 95% of Poles identify as Catholic, but only 41% attend Mass regularly. In the large cities of Warsaw and Krakow, that number drops to 20%, as Catholicism becomes more a cultural identity.  There is a strong anticlerical movement in Poland, not attached to Church sex scandals, but more a function of  rebellion against authority.  Many are upset with the Church's taking sides in political battles and its intervention in social issues, such as Parliament's debate over in vitro fertilization.  In part to counter the secularizing movement, last month a 108 foot high statue of Jesus was erected in the small western Polish town of Swiebodzin.

Recent Prisoner Free Exercise Cases

In Michael v. Frederick County Commissioners, 2010 U.S. Dist. LEXIS 127776 (D MD, Dec. 3, 2010), a Maryland federal district court rejected a complaint by a pre-trial detainee that his free exercise rights were violated when a cross he wore as a necklace was confiscated as a security risk.

In Shoucair v. Williams, 2010 U.S. Dist. LEXIS 127712 (ED MI, Dec. 3, 2010), a Michigan federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 127702, Oct. 27, 2010) reaffirming an earlier holding that a Muslim prisoner who was assaulted was improperly trying to force his 8th Amendment claims into Free Exercise and RLUIPA claims. (See prior related posting.)

In Oliverez v. Albitre, 2010 U.S. Dist. LEXIS 128243 (ED CA, Dec. 6, 2010), a California federal magistrate judge recommended that a Wiccan inmate be allowed to move ahead with his claim that the chaplain's office failed to respond to his request for the issuance to him of prayer oil.

In Greenwood v. Maketa, 2010 U.S. Dist. LEXIS 128464 (D CO, Nov. 22, 2010), a Colorado federal magistrate judge ordered a Muslim inmate to file an amended complaint giving clearer notice of his claims, or else his case will be dismissed. Plaintiff complained that the jail's postcard-only requirement prevents him from mailing religious study guides. He also complained that he is being denied a religious diet and is being forced to participate in the Ramadan fast.

In Glaze v. May, 2010 U.S. Dist. LEXIS 128653 (ED AR, Dec. 3, 2010), an Arkansas federal district court  adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 128703, Sept. 7, 2010) and dismissed a complaint by a Muslim inmate that he was denied adequate alternative meals to those that did not comply with his religious requirements. He claimed that he was often served only peanut butter sandwiches.

In Burriola v. Nevada, 2010 U.S. Dist. LEXIS 129678 (D NV, Nov. 17, 2010), a Nevada federal district court permitted an inmate to proceed with his complaint that prison authorities required him to serve on mail duty at a time that conflicted with his religious services.

In Briggs v. Hartley, 2010 U.S. Dist. LEXIS 130217 (ED CA, Nov. 24, 2010), a California federal magistrate judge dismissed with leave to amend  an inmate's broad allegations that he has been inhibited in some unspecified way from practicing his religion and that he is being persecuted because of his religious beliefs.

In Harris v. Chavez, 2010 U.S. Dist. LEXIS 130204 (D CO, Nov. 23, 2010), a Colorado federal district judge dismissed claims against two defendants but allowed a Jewish inmate to proceed with her claims against other defendants alleging interference with her possessing a kosher meal and forcing her to violate the Sabbath by requiring her to move and sign for a room key and a cell inspection on Saturday.

In Lee v. Gurney, 2010 U.S. Dist. LEXIS 130493 (ED VA, Dec. 8, 2010), a Virginia federal district court dismissed claims of a Sunni Muslim inmate who challenged the ban on group prayer in the prison's recreation yard.  Plaintiff's First Amendment claim was dismissed on the merits. His RLUIPA claims for injunctive relief were dismissed because he had been transfered to another prison. The court found that damages are unavailable under RLUIPA because plaintiff's inability to engage in group prayer does not affect interstate commerce.

In Torrez v. Corrections Corporation of America, 2010 U.S. Dist. LEXIS 130632 (D AZ, Nov. 22, 2010), an Arizona federal district court permitted a defendant to move ahead with claims that he was denied a religious diet during Lent , and was denied permission to use the chapel for Mass because there was no priest with security clearance. It allowed him to move ahead with a complaint that the prison did not make Catholic television programming available to inmates while making Protestant television programming available, and that he was not hired as a chapel porter because of his Catholic faith. Various other claims were rejected.

Court Rejects Establishment Clause Claim Alleging Connection of State Officials With Catholic Organizations

Wallace v. Bank of America, 2010 U.S. Dist. LEXIS 129804 (D NH, Nov. 5, 2010), is a pro se case growing out of foreclosures on plaintiff's homes.  A New Hampshire federal district court rejected an Establishment Clause claim added by plaintiff which, according to the court, was "based on the governor's appearance at a fundraiser for a community food bank run by New Hampshire Catholic Charities, and the Roman Catholic Church membership or affiliation of Robert Ducharme, Chairman of the New Hampshire Board of Nursing, and others who [plaintiff] believes have harassed or defamed her."

En Banc 9th Circuit Refuses To Create Test for Who Is Covered By the Ministerial Exception

In an en banc opinion in Alcazar v. Rosas, (9th Cir., Dec. 10, 2010), the full 9th Circuit vacated the portion of the 3-judge panel's decision that adopted a new definition for who is a minister for purposes of the "ministerial exception" doctrine. (See prior posting.) At issue is a challenge by a Catholic seminarian who alleged violations of Washington state's Minimum Wage Law, claiming he was not paid required overtime while in a placement program preparing for the priesthood. The en banc court concluded that appellant was a minister "under any reasonable interpretation of the exception," and that the exception applies to appellant's minimum wage claim  The court went on to hold:

First Amendment considerations relevant to an ordained minister apply equally to a person who, though not yet ordained, has entered into a church-recognized seminary program to become a minister and who brings suit concerning employment decisions arising from work as a seminarian..... We do not address the extent of any ministerial exception concerning minors.... Additionally, we agree ... that, if a church labels a person a religious official as a mere “subterfuge” to avoid statutory obligations, the ministerial exception does not apply.

Courthouse News Service reports on the decision.

Pastor As Chicago Mayoral Candidate Must Deal With IRS Rules

Today's Chicago Tribune reports on the Internal Revenue Code tightrope being walked by Rev. James T. Meeks who is pastor of Salem Baptist Church and preaches every Sunday at the 10,000 seat House of Hope arena.  Meeks is now also a candidate for mayor of Chicago.  The Internal Revenue Code bars churches and other non-profits from supporting candidates in political elections. (Background.) Meeks regularly-- beginning long before he became a candidate-- preaches about problems in the city such as poor garbage pick up and under-performing public schools. He also tells his congregants that they have a duty to support candidates that are guided by Christian values. Criticizing the IRS rules, Meeks asks why he can take money from all sorts of special interests, but not from a church. He asks, "If homosexuals can endorse a candidate, why can't a church?"

Saudi King Moving To Reform Legal System

An analysis published yesterday by Gerson Lehrman Group reports that Saudi Arabia's King Abdullah is making progress in pushing through sweeping legal reform and codification to meet World Trade Organization and human rights standards.  The move which attempts to restrict fatwas and codify Islamic legal rules is designed to encourage foreign investment, standardize legal practice and grant enforcement powers to the courts. In response to a series of embarrassing fatwas, Abdullah has decreed that only members of the Council of Senior Islamic Scholars can to issue fatwas. The analysis concludes:

The debate over the rules that govern the issuing of fatwas reflects King Abdullah's recognition and a growing body of public opinion that Wahhabisim, the kingdom's puritan version of Islam, hinders the development of a modern state capable of competing in the 21st century and catering to people's needs. Five years ago, bizarre and obscure fatwas would have been seriously debated rather than ridiculed and condemned.

Many Saudi clergymen have yet to recognize that Abdullah's legal reform offers them an opportunity to consolidate their influence. Yet, they seem more intent on scoring own goals that undermine their public credibility and ultimately could signal the decline of clerical power in Saudi Arabia. In doing so, the clergy could be opening the door for the House of Saud to identify new sources of legitimacy that go beyond their historical reliance on Wahhabism.

11th Circuit: No Bar On Private Employer Keeping Workplace Free of Religious Symbols

 Dixon v. Hallmark Companies, Inc., (11th Cir., Dec. 9, 2010), involved a clash between owners of a federally assisted apartment complex that had a policy barring religious items from being displayed in the building's management office, and the husband and wife maintenance technician and on-site property manager who objected to the policy. A company supervisor insisted that the couple take down a large wall hanging that included the inscription: "Remember the Lilies.... Matthew 6:28." The supervisor ultimately took the picture down  and an argument ensued when the couple wanted to rehang it, leading to their being fired. The couple sued.  On appeal, the 11th Circuit concluded that plaintiffs failed to show any legal rule that barred the owners from keeping religious symbols out of the workplace.  However it sent back for trial a religious discrimination claim based on the husband's allegation that the supervisor said he was being fired for being "too religious." It also sent back to the trial court a religious accommodation claim so the trial court could determine whether plaintiffs had a sincere religious belief that conflicted with the company's policy. (See prior related posting.)

President Delivers Remarks At National Christmas Tree Lighting

President Obama yesterday delivered remarks (full text) at the lighting of the National Christmas Tree on The Ellipse. He said in part:

each year, we have gathered here. Each year we’ve come together to celebrate a story that has endured for two millennia. It’s a story that's dear to Michelle and me as Christians, but it's a message that's universal: A child was born far from home to spread a simple message of love and redemption to every human being around the world.

It's a message that says no matter who we are or where we are from, no matter the pain we endure or the wrongs we face, we are called to love one another as brothers and as sisters....On behalf of Malia, Sasha, Michelle, Marian -- who’s our grandmother-in-chief -- (laughter) -– and Bo -- don't forget Bo -- (applause) -- I wish all of you a merry Christmas and a blessed holiday season.

Court Upholds Monastery's Copyright Claims Against Former Member

In Society of the Holy Transfiguration Monastery, Inc. v. Archbishop Gregory, (D MA, Dec. 3, 2010), a Massachusetts federal district court upheld copyright infringement claims brought by an Orthodox monastery against Archbishop Gregory,  a former member of the monastery.  Gregory posted on his website portions of English translations of six religious works. The monastery holds copyrights on the translations. Gregory was involved with others in creating the translations when he was at the monastery. Sales of copies of the works help sustain the monastery financially.  The court rejected various challenges to the validity of the monastery's copyrights and also rejected defendants' fair use defense. It granted the monastery's motion for summary judgment on the infringement claims and gave the monastery until Dec. 17 to elect whether it wants a trial on damages or sill settle for a judgment based on the statutory minimum damages of $750 per work infringed. Wednesday's National Law Journal reported on the decision.

Kentucky Will Bar Religious Theme Park From Hiring On Basis of Religion If It Gets Tax Incentives

As previously reported, Kentucky Gov. Steve Beshear is supporting an application by a proposed Noah's Ark theme park for participation in the state's sales tax rebate program for tourism development projects.  Yesterday's Louisville Courier Journal reports that Beshear says he is insisting that the contract with Ark Encounter bar it from receiving tax incentives if it discriminates on the basis of religion (or otherwise) in its hiring. Kentucky law permits religious organizations to hire on the basis of religion for work connected with religious activities.  Another Kentucky tourist attraction, Answers In Genesis, requires employees to sign a statement of faith.  Ark Encounter developers plan for their new park to be operated by Answers In Genesis once the park is built.

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.]