Israeli Police Arrest Suspects In Two Separate Torah Theft Rings

Over the last two weeks, police in Israel have made arrests in what are apparently two separate criminal rings that have been stealing valuable Torah scrolls from synagogues in Israel.  On Dec. 23, Arutz Sheva reported that two men who are suspected of breaking into 17 synagogues in central and southern Israel and stealing a total of 30 Torahs were arrested.  Most of the thefts were from synagogues in moshavim (agricultural communities) where synagogues are more accessible during the daytime. According to the paper, the thieves "would remove the Torah parchments from the rollers they were wrapped upon, replace the rollers in the cases or cover them with the Torah mantles, and put them back in the Ark. The theft would therefore only become known when congregants were in the synagogue and about to read from the Torah."

YNet News reported yesterday that Israeli authorities have made arrests in another case involving the thefts of dozens of valuable Torah scrolls which were then refurbished and resold at discount prices on the haredi market. Arrested were a rabbi from the town of Elad who apparently masterminded the activities, along with three Arabs from whom he would "order" the Torah scrolls. Additional suspects who were thought to have been involved in refurbishing and reselling the scrolls were also arrested.

Recent Articles and Books of Interest

From SSRN:

• Yuksel Sezgin, How to Integrate Universal Human Rights into Customary and Religious Legal Systems?, (Journal of Legal Pluralism, Vol. 60, 2010).
• Yuksel Sezgin, The Israeli Millet System: Examining Legal Pluralism through Lenses of Nation-Building and Human Rights, (The Israel Law Review, Vol. 43, No. 3, 2010).
• Benjamin L. Berger, The Abiding Presence of Conscience: Criminal Justice Against the Law and the Modern Constitutional Imagination, (University of Toronto Law Journal, Vol. 61, No. 4, 2011).
• Quirine Eijkman, Has the Genie Been Let Out of the Bottle? Ethnic Profiling in the Netherlands, (Public Space: The Journal of Law and Social Justice, Vol. 5, pp. 27-48, 2010).

Other Articles:

• Mark L. Rienzi, An Abortion Exception to the First Amendment? Evaluating Recent Efforts to Regulate Speech About Pregnancy Options, Engage Volume 11, Issue 3, December 2010.

Recent Books:

• Frank S. Ravitch, Marketing Intelligent Design-- Law and the Creationist Agenda, (Cambridge Univ. Press, Oct. 2010).
• Timur Kuran, The Long Divergence-- How Islamic Law Held Back the Middle East, (Princeton University Press, Nov. 2010).
• Olivier Roy, Holy Ignorance: When Religion and Culture Part Ways, (Columbia Univ. Press, Dec. 2010).
• Jean Porter, Ministers of the Law: A Natural Law Theory of Legal Authority, (Eerdmans, Oct. 2010).

Nevada Supreme Court Dismisses Personhood Amendment Appeal As Moot

In Personhood Nevada v. Bristol, (NV Sup. Ct., Dec. 30, 2010), the Nevada Supreme Court dismissed as moot an appeal from a lower court ruling that held a proposed ballot initiative to be in violations of state law because it embraces more than one subject. (NRS 295.009). The proposed constitutional amendment read: "In the great state of Nevada, the term 'person' applies to every human being." The trial court also suggested that proponents' description of the effect of the amendment was improper. After the lower court opinion, proponents did not go ahead with collecting signatures on their initiative petition. The Supreme Court concluded that this made the case moot, even though proponents are planning to file a similar initiative petition in 2012.  It also made clear that because appellate review was precluded, the lower court ruling will have no preclusive effect in later litigation. The Las Vegas Sun reports on the decision. [Thanks to Pew Sitter for the lead.]

Congressional Hearings Planned On Radicalization of US Mosques

The Forward reported last week that New York Congressman Peter King, who will become chairman of the House Committee on Homeland Security when the new Congress convenes, is planning to hold hearings on claimed radicalization of mosques in the United States.  Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, says the hearings promise to be a "show trial" that will "serve to marginalize American Muslims." King, once a supporter of the Irish Republican Army, cites some who contend that that extremists are in leadership positions in at least 80% of American mosques.

Egyptian Church Bombed; Pope Calls For Religious Freedom

Pope Benedict XVI's New Year's message focused on the need for religious freedom around the world, condemning both secularism and fundamentalism. (Zenit.)  Fox News reports that the pope's message was delivered shortly after a New Year's Eve bomb blast at a Coptic Christian church in Alexandria, Egypt killed at least 21.  BBC News reports that at least 70 others were injured in the blast which was condemned a few hours afterwards by Egyptian President Hosni Mubarak.  In a rare television broadcast, Mubarak said the attack was a "terrorist operation which carries, within itself, the hallmark of foreign hands which want to turn Egypt into another scene of terrorism like elsewhere in the region and the wider world." Hundreds of Copts clashed with police and local Muslims in reaction to the bombing. Today, President Obama issued a statement (full text) condemning the Alexandria bombing, as well as a terrorism attack on an army barracks in Nigeria.

Happy New Year 2011 To Religion Clause Readers!

Dear Religion Clause Readers:

Happy New Year! As we enter 2011, I want to again thank all of you who read Religion Clause-- both long time followers and those who have joined us more recently. And thanks to all of you who send me leads to new developments or who alert me to needed corrections or to your concerns about coverage of particular developments. These help me in my attempts to be complete and accurate. I read all of your e-mails and appreciate receiving them, even though I cannot always acknowledge them. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want me to mention you, I will be happy to honor that request if you let me know when sending me information.

It has been a good year for Religion Clause blog. It was nominated by the American Bar Association as one of the top 100 legal blogs in 2010.  The site meter shows that the blog has attracted nearly 917,000 visits since I created it in 2005. Approximately 244,000 of these visits were registered in 2010-- a small increase over 2009. Accessing Religion Clause through its Twitter feed (@ReligionClause) appears to be increasingly popular.

Religion Clause's established format of neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. I am pleased that my regular readers span the political and religious spectrum.  If you have any general comments or suggestions for Religion Clause's upcoming year, feel free to e-mail me at religionclause@gmail.com .

Best wishes for 2011!

Howard M. Friedman

Bowing To Pressure, Pakistan Government Says It Will Not Propose Change In Blasphemy Law

In the face of a call by Islamic political parties for a general strike today (see prior posting), Pakistan's Federal Minister for Labor and Religious Affairs told a press conference yesterday that the government would not amend Pakistan's blasphemy law.  Pakistan's Daily Times reports that Minister Syed Khursheed Ahmed Shah asked that the strike call be cancelled after giving assurances Wednesday on the floor of the National Assembly that no proposal regarding the blasphemy law was being presented. Nevertheless, according to Dawn, the strike was being observed today in major cities around the country, with religious leaders saying assurances that no repeal is planned need to come from the President or Prime Minister. (Dawn).  Because of the strike, no public transportation was available in Karachi, and major markets and business centers were closed in a number of other cities.  Reuters says the strike has more to do with politics than religion, as the ruling Pakistan People's Party works to keep its coalition from breaking up. Meanwhile, civil society organizations are protesting against the blasphemy law and the judicial structures that enforce it. Protesters in Islamabad yesterday demanded that the government stand up to religious forces and repeal the law. They also called for the immediate release of Aasia Bibi, the high profile Christian defendant who has been sentenced to death for blasphemy. (See prior posting.)

Lebanese Official Proposes Ban on Land Sales Between Christians and Mulsims

In Lebanon, Labor Minister Butros Harb, concerned about demographic changes being caused by the sale of Christian-owned land to Muslims, has proposed a new law that would prohibit Christians and Muslims from selling land to each other for a period of 15 years. Lebanon's Daily Star today reports that the proposal, which will be submitted to the Cabinet for discussion, will likely draw criticism. However proponents say it is necessary to reassure Christians and safeguard national co-existence in the face of large scale land sales which some say have political and military objectives.

Vatican Adopts Anti-Money Laundering and Other International Monetary Rules

The Vatican yesterday took several related steps to come into compliance with the anti-money laundering and anti-terrorism financing norms created by the intergovernmental Financial Action Task Force. The moves, which implement the 2009 Monetary Convention Between the Vatican City State and the European Union, were previewed by a USA Today article on Wednesday.  The Vatican's action comes as Italian courts refused to release funds of the Vatican Bank seized in September by Italian authorities in a money laundering investigation. (See prior posting.)  As summarized by a communique issued yesterday by the Vatican's Secretariat of State (full text), the Vatican adopted four new laws: (1) a law to prevent money laundering and financing of terrorism; (2) a law on fraud and counterfeiting; (3) a law on Euro banknotes; and (4) a law regarding Euro coins.

In a related action, Pope Benedict XVI yesterday issued an Apostolic Letter Motu Proprio (full text) decreeing that the new laws implementing the Monetary Convention are to apply to all entities related to the Vatican, which includes the Vatican Bank. [corrected- thanks Marc Puckett]. The Pope also set up a new agency, the Autorita di Informazione Finanziaria (AIF), to implement the new laws, and conferred jurisdiction on Vatican judicial bodies to to exercise penal jurisdiction over money laundering and terrorism financing offenses. The new laws take effect April 1, 2011.

A release from the Vatican Press Office commenting on the new laws says in part:

Today's publication of new laws for Vatican City State, for the dicasteries of the Roman Curia and for the Institutions and Entities dependent on the Holy See, is an important normative development, but also has far-reaching moral and pastoral significance.

As of today, all organisations associated with the government of the Catholic Church - and with the Church's "support": Vatican City State - have, in a spirit of sincere collaboration, become part of that system of juridical principles and instruments which the international community is creating with the aim of guaranteeing just and honest coexistence in an increasingly globalised world... 

New York Times Pans Architectural Developments In Mecca

The New York Times carries an article, appearing on the front page of its print edition today, that is highly critical of the architectural design of the many new projects being built in Saudi Arabia in the center of the holy city of Mecca. Here is a sampling of the criticism:

It is an architectural absurdity. Just south of the Grand Mosque in Mecca, the Muslim world’s holiest site, a kitsch rendition of London's Big Ben is nearing completion.... [I]t will be ...  the centerpiece of a complex that is housing a gargantuan shopping mall, an 800-room hotel and a prayer hall for several thousand people. Its muscular form, an unabashed knockoff of the original, blown up to a grotesque scale, will be decorated with Arabic inscriptions and topped by a crescent-shape spire in what feels like a cynical nod to Islam’s architectural past. To make room for it, the Saudi government bulldozed an 18th-century Ottoman fortress and the hill it stood on....

The city’s makeover ... reflects a split between those who champion turbocharged capitalism and those who think it should stop at the gates of Mecca, which they see as the embodiment of an Islamic ideal of egalitarianism.

The Saudi government says the new construction is needed to accommodate the growing number of Muslims who make the pilgrimage to Mecca.

Jail Chaplain Settles Her Lawsuit Against Sheriff and County

Tuesday's Brownsville (TX) Herald reports on the settlement of a federal lawsuit brought last year by volunteer jail chaplain Gail Hanson against Cameron County, Texas and Sheriff Omar Lucio after Lucio banned Hanson from the county's jails. Hanson says the ban was imposed because she criticized jail operations and the treatment of female inmates.  Lucio counters that Hanson created a security risk by becoming too emotionally involved with some of the inmates. Under the settlement agreement, Hanson will have to give notice to the county and give it a reasonable time to correct the situation before she speaks out in a public forum or to the media about any jail conditions of concern to her. She also agreed that she would report to law enforcement officials any conduct that she believes is a criminal offense, and agreed not to pass messages between inmates. In return she will be allowed back in the jails to provide counseling and religious services for inmates, and jail staff will be instructed to treat her with respect. The county will also pay $25,000 of legal fees incurred by Hanson.

AALS Law and Religion Section Publishes 2010 Bibliography

The Association of American Law Schools Section on Law and Religion has issued its December 2010 Newsletter which includes a 23-page bibliography of the year's books, articles and blogs on law and religion.

40% of Americans Believe In Creationism-- Down From Prior Polls

A Gallup poll released earlier this month shows that 40% of Americans believe in creationist theory. They said they agree with the statement: "God created human beings pretty much in their present form at one time in the last 10,000 years or so." This is the lowest percentage that believe this in the history of Gallup's asking this question.  In the poll just released, 38% of those surveyed instead chose the statement: "Human beings have developed over millions of years from less advanced forms of life, but God guided this process."  Finally 16% chose the response: "Human beings have developed over millions of years from less advanced forms of life, but God had no part in this process." The survey showed that those with less formal education were more likely to hold creationist views, as were Republicans and those who attend church weekly. [Thanks to Alliance Alert for the lead.]

Restaurant's Christmas Promotion Leads To Police Investigation In Maldives

Only Muslims may become citizens of the Maldives. However apparently some number of Christian expatriates live in the country. So the Jade Bistro cafe-- a restaurant that appeals to various nationalities-- was decorated for Christmas and offered a "festive" luncheon over the Christmas period. According to yesterday's Minivan News, this led Sheikh Hussein Rasheed, head of the Adhaalath Party, to file a complaint with the police who briefly arrested one person at the cafe to obtain more information. Sheikh Hussein says that it is unlawful to celebrate Christmas in the Maldives. Management of the Jade Bistro issued an apology, saying they had not intended to upset anyone. They were merely offering a traditional meal with friends for those who were away from home.

Indian Court Interprets Reach of Hindu Marriage Act

In India, the Delhi high court has issued a ruling clarifying the scope of the Hindu Marriage Act.  According to DNA, Justice Kailash Gambhir held that in order for the Act to be applicable to a divorce action, both husband and wife must have been Hindus at the time of the marriage. It is not enough that the marriage was solemnized in a Hindu ceremony if one of the spouses was of a different religion.

Group Challenges Sheriff's Donation of Jail Basketball Hoops To Churches

A letter sent Tuesday by Atheists of Florida is challenging as an Establishment Clause violation the decision of Polk County (FL) sheriff Grady Judd to remove basketball hoops, backboards and poles that are at the county jail and donate them to eight local churches. According to Fox News, Judd said it gave the wrong impression to people driving to see inmates playing basketball. Inmates will still have three hours a week recreation time, but will now be limited to activities such as jogging and push-ups. The Examiner reports that it is unclear whether secular charities were considered to receive the basketball equipment and why the equipment was not sold as surplus property.

5 Arrested Planning Terror Attack On Danish Paper That Published Muhammad Cartoons

Four men were arrested in Denmark and one in Sweden today, suspected of plotting an attack on the Danish newspaper Jyllands-Posten that in 2005 published the now-famous cartoons of the Prophet Muhammad. (See prior posting.) The New York Times reports that the four arrested in Denmark had entered the country from Sweden and were planning within a few days to break into the newspaper and kill as many people as possible.

New Controversy In Israel Over Government Subsidies For Religious Students

The New York Times reported yesterday on the growing debate within Israel over government subsidies for thousands of strictly Orthodox (haredi) students who study full time at religious seminaries.  Rabbi Chaim Amsellem, a member of the Knesset from the religious Shas Party, created a furor last month when urged that full-time state-financed religious study should be reserved for students who are particularly well qualified scholars and likely to become rabbis or religious court judges. He says the others should join the work force. In reaction his own party expelled him and attacks in a Shas newspaper describing him as "Amalek" led to his being assigned a bodyguard. A number of efforts are underway to bring haredim into the workforce. 56% of haredim currently live below the poverty line.

Atheist Will Deliver Invocation At City Council Session In Colorado

In 2008, Grand Junction City, Colorado city council adopted a resolution creating a more inclusive process for choosing those who may offer the invocation at council meetings. Any spiritual organization in the community may place its name in a lottery for selection. According to Denver Westward Blogs, for the first time in the city's history an atheist will deliver the invocation.  For the January 3 meeting, the Western Colorado Atheists and Freethinkers was chosen in the lottery and Joe Alaimo, representing the Church of Spiritual Humanism will open council's session. [Thanks to Scott Mange for the lead.]

DC Mayor's Inauguration Prayer Service Rejects Request for Participation By Humanist Practitioner

The schedule for the January 2 inauguration of Washington D.C.'s mayor-elect Vince Gray begins with an interfaith prayer service. According to a press release yesterday from the Secular Coalition for America (SCA), their request that a Humanist Celebrant be included as part of the service has been turned down on the ground that the prayer service is already set. SCA says that while the Mayor's transition team said they wished SCA had contacted them sooner, SCA made its request for participation within hours after the "One City ... Praying Together" event was publicly announced.

Britain's House of Commons Will Create Multi-Faith Chaplaincy

The Speaker of Britain's House of Commons is backing a proposal by the current Chaplain of the House of Commons to create a team of non-salaried multi-faith chaplains for Parliament's lower house.  Sunday's London Telegraph reported that the new chaplains will represent the Muslim, Hindu, Buddhist, Janist, Bah'ai and Zoroastrian faiths. They could take part in Parliamentary ceremonies, but constitutional reform will be required for a non-Anglican cleric to read the daily prayers.  Apparently their primary role will be a pastoral one for members of the House of Commons and their staffs.

Pakistan's Islamic Parties Call For New Year's Eve General Strike To Protest Blasphemy Repeal Efforts

Pakistan's Express Tribune today reports that a group of Islamic political parties in Pakistan have called for a general strike on December 31 to protest proposals to repeal the country's blasphemy laws.  The political parties also plan a mass demonstration in Karachi on January 9.

Religious Discrimination Suit On Behalf of Fired Santeria Employee Settled

According to today's Fayetteville (NC) Observer, the manufacturer GKN Dirveline North America has settled a religious discrimination lawsuit filed against it by the EEOC just a week before the suit was to go to trial. The company had been charged with failing to accommodate the religious beliefs of a Santeria employee who refused to submit a saliva sample for drug testing, but offered to undergo an alternative form of testing. Dismissed employee Dwayne Butler believes he can only provide saliva for a religious purpose. The company will pay $36,432 in damages, provide training on religious discrimination and post a notice concerning employee rights.

Senate Confirms 4 EEOC Recess Appointees

The U.S. Senate last week (Dec. 22) confirmed four of President Obama's long-pending nominations to positions at the Equal Employment Opportunity Commission. An EEOC press release announces the confirmation of Jacqueline A. Berrien to be EEOC Chair; Chai R. Feldblum and Victoria A. Lipnic to be Commissioners; and P. David Lopez as General Counsel. In March the President had given recess appointments to these four (see prior posting).  Christian conservatives had objected particularly to Feldblum's nomination as the first openly gay or lesbian person to be nominated to the EEOC. (See prior posting.) The EEOC enforces federal laws barring discrimination in employment, including the ban on religious discrimination.

En Banc Rehearing Granted In Suit Over Student Distribution of Religious Themed Materials

Earlier this month, the U.S. 5th Circuit Court of Appeals issued an order granting an en banc rehearing in Morgan v. Swanson.  A 3-judge panel in the case refused to grant qualified immunity to two Plano, Texas elementary school principals who were sued for refusing to allow elementary school students to hand out religious-themed items during school parties and at other non-curricular times. Though the panel (in an amended opinion) added that the trial court might find immunity if the facts show that the students' activities were disruptive. (See prior posting.) [Thanks to Don Byrd for the lead.]

Top Ten 2010 Religious Liberty/ Church-State Developments

Here are my nominations for the 2010 Top Ten Church-State and Religious Liberty Developments. The choices are based on the long-range implications of the developments on legal doctrines and on relations between government and religion. Most of these top ten were reflected in a number of Religion Clause postings over the year. I have linked to representative postings on each issue.

• (1) Ground Zero Mosque becomes national political issue while opponents of Tennessee mosque argue that Islam is not entitled to protection as a religion.
  
• (2) California federal district court invalidates Proposition 8, the California initiative that bars same-sex marriage.
  
• (3) Oklahoma voters approve anti-Shariah state constitutional amendment; court enjoins certification of results.
  
• (4) France bans wearing of burqa in public.
  
• (5) Leaders of women's Catholic religious orders split with bishops over health care reform proposals.
  
• (6)  Florida church creates international furor by proposing "Burn a Qur'an Day" for 9-11 anniversary. Eventually event is cancelled.
  
• (7) Military chaplains oppose repeal of Don't Ask Don't Tell.
  
• (8) Supreme Court upholds Hastings College of Law policy of requiring student religious groups to accept anyone as member in Christian Legal Society v. Martinez.
  
• (9) Federal district court declares that federal statute designating National Day of Prayer is unconstitutional.
  
• (10) 9th Circuit upholds pledge of allegiance, and "in God We Trust" on coins and currency, against Establishment Clause challenges.

Religion Newswriters Association and Huffington Post have their own Top Ten lists of religion stories.

Australian Anti-Discrimination Law Exempts Religious Foster Care Agency

In OW and OV v Members of the Board of the Wesley Mission Council, (NSWADT, Dec. 10, 2010), the Administrative Decisions Tribunal of the Australian state of New South Wales held that the New South Wales Anti-Discrimination Act does not require a religiously-sponsored social service organization to approve same-sex couples as foster care providers. Section 56 of the Act exempts any act or practice of a religious body "that conforms to the doctrines of that religion or is necessary to avoid injury to the religious susceptibilities of the adherents of that religion." Here, Wesley Mission believed that a monogamous heterosexual partnership in marriage should be the role model for children for whom it provides foster care. Sydney's Daily Telegraph today reports on the decision.

South Korean Parliament Fails To Act On Tax Benefits For Sukuk At Urging of Christian Groups

Arab News reports today that the South Korean National Assembly failed to approve a bill introduced by the Ministry of Finance that would have given tax neutrality to Shariah-compliant financial instruments. It would have given sukuk (Islamic bonds) the same tax treatment as conventional bonds.  According to this report, some members of the National Assembly have been heavily lobbied by Christian evangelical groups, some of which have close ties to groups in the United States. The Korean Association of Church Communication is among the groups that have generated concern that approval would facilitate the flow of funds to terrorist groups.

Recent Articles of Interest

From SSRN:

• Reid Krell, And the Spirit of the Lord Spake within Them: Biblical References by State Supreme Courts, 1900-1999, (December 20, 2010).
• Charles Hillel Baron, Blood Transfusions, Jehovah’s Witnesses, and the American Patients’ Rights Movement, (Alternatives to Blood Transfusion in Transfusion Medicine, Alice Maniatis, Phillipe Van der Linden, Jean-François Hardy, eds., Wiley-Blackwell, 2010).
• Allen Mendenhall, The Oft-Ignored Mr. Turton: The Role of District Collector in a Passage to India, (Libertarian Papers, Vol. 2, No. 44, 2010).
• Robert C. Blitt, The Bottom Up Journey of 'Defamation of Religion' from Muslim States to the United Nations: A Case Study of the Migration of Anti-Constitutional Ideas,  (December 22, 2010).
• Micah Schwartzman, The Ethics of Reasoning from Conjecture, (Journal of Moral Philosophy, Forthcoming).
• Seth Barrett Tillman, The Originalist Who Came In From The Cold: A “New” View of the Incompatibility Clause, the Removal and Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment and Assassination, (2010).
• Susan Haack, Belief in Naturalism: An Epistemologist's Philosophy of Mind, (Logos Episteme, Vol. 1, No. 1, pp. 67-83, 2010).
• Arthur J. Jacobson, Prophecy as Expertise, (Hebraic Political Studies, Vol. 4, No. 4, pp. 329-336, Fall 2009).

European Project On Religious Diversity and Secular Models Launches Website

RELIGARE, a project funded by the European Commission that brings together 13 European universities and research centers, has launched a website.  The project's longer descriptive title is Religious Diversity and Secular Models in Europe-- Innovative Approaches to Law and Policy. The website includes publications, documents, case summaries and more. A link now appears on the Religion Clause sidebar under Resources. [Thanks to Prof. Rafael Palomino for the lead.]

Teacher Loses Challenge To School's Demand She Apologize For Her Class On Evolution

In Hensley v. Johnston County Board of Education, 2010 U.S. Dist. LEXIS 135926 (ED NC, Dec. 23, 2010), a North Carolina federal district court dismissed free speech, equal protection and religious discrimination claims by an 8th grade science teacher who refused to apologize to parents over her method of teaching evolution and dealing with religious objections to evolutionary theory.  After a parent complained that teacher Pamela Hensley was antagonistic to "true Christian" students, the school presented Hensley with a letter to sign to go out to parents apologizing for the manner in which she conducted the class discussion about God, religion and evolution. Ultimately she refused to sign the letter and was transfered to a different school. The court concluded:

her decision not to send the letter requested by her employer, in her capacity as a teacher, is not protected by the First Amendment. Because Hensley was asked to speak in her official capacity as a public employee, her refusal to speak does not give rise to a claim for violation of her First Amendment rights....

Recent Prisoner Free Exercise Cases

In McKinnon v. Watson, 2010 U.S. Dist. LEXIS 133550 (WD VA, Dec. 17, 2010), a Virginia federal district court granted summary judgment to prison officials who had been sued by a Nation of Islam prisoner for delay in approving his religious diet request. The court held that defendants had qualified immunity.

In Norman v. Small, 2010 U.S. Dist. LEXIS 133507 (SD CA, Dec. 14, 2010), an inmate alleged among other claims that his free exercise rights were violated because prison policy allowed him to be searched in front of female officers in violation of his Islamic religious beliefs. A federal magistrate judge recommended (2010  U.S. Dist. LEXIS 133557, July 29, 2010) that this claim be dismissed both for failure to exhaust administrative remedies and for failure to state a claim. The district court adopted the recommendation to dismiss on exhaustion grounds, but said it would therefore not address whether the claims should also be dismissed on the merits.

In Wilder v. Sutton, 2010 U.S. Dist. LEXIS 134677 (SD IL, Dec. 21, 2010), an Illinois federal district court permitted a Wiccan prisoner to go to trial on claims that his rights  under the 1st and 14th Amendments were violated when his requests for materials that would permit him to practice his religion were ignored and he was told he could not practice his religion in prison.  However the court held that damages are not available in either individual or official capacity claims under RLUIPA (which he also invoked) and that his claim for an injunction is moot because he had been transfered to a different facility.

In Cullen v. Pennsylvania Department of Corrections, 2010 U.S. Dist. LEXIS 134882 (WD PA, Dec. 21, 2010), a Pennsylvania federal district court rejected that an inmate's complaint that his free exercise rights were infringed when his refusal to take part in a Therapeutic Community program was used against him in considering his parole. Plaintiff failed to allege his religious beliefs or how they were impinged. He alleged primarily that program required that inmates inform on one another's behaviors and prohibited the use of the words "God" or "Higher Power" in program sessions.

In Young v. Ericksen, 2010 U.S. Dist. LEXIS 134606 (ED WI, Dec. 20, 2010), a Wisconsin federal district court permitted a Muslim inmate who was held in protective custody and denied the right to attend group Jum'ah services, as well as being denied a visit by a volunteer imam, to proceed with his free exercise and RLUIPA claims.

Proposals In Pakistan To Temper Blasphemy Law Meet With Street Protests

CNN reported yesterday that Pakistan's federal minister for minority affairs has announced the formation of a committee of scholars to review the country's blasphemy laws to prevent them from targeting innocent people. The move comes in the wake of a controversial death sentence for blasphemy imposed on a Christian woman, Asia Bibi. Pakistan's President says he would pardon Bibi, but a court has ruled that the president cannot grant a pardon while the case is still working its way through the courts. (See prior posting.) Press TV reports that thousands of Pakistani Muslims demonstrated in major cities around the country protesting a bill that has been introduced into Parliament that would remove the death penalty for blasphemy.

White House Sends Christmas Greetings

CNN has the full text of the Weekly Address by the President, this week joined by the First Lady, wishing everyone a Merry Christmas. The President said in part:

Because this is the season when we celebrate the simplest yet most profound gift of all: the birth of a child who devoted his life to a message of peace, love, and redemption. A message that says no matter who we are, we are called to love one another – we are our brother’s keeper, we are our sister’s keeper, our separate stories in this big and busy world are really one....

[W]e're encouraging Americans to ask what you can do to support our troops and their families in this holiday season. For some ideas on how to get started, just visit Serve.gov..... America's brave servicemen and women represent a small fraction of our population. But they and the families who await their safe return carry far more than their fair share of the burden. They've done everything they’ve been asked to do..... So let’s all remind them this holiday season that we’re thinking of them – and that America will forever be here for them, just as they've been there for us.

The White House website today also carries an interview with Diane Roussel-Dupre, the "Santa Tracker Head Researcher" at the Department of Energy's Los Alamos Laboratory. Here is part of the interview:

Q: What is the hardest part of keeping track of Santa?

Diane Roussel-Dupre: Because of his wish to surprise, Santa does not file a flight path with the Federal Aviation Administration, so we never really know where he will be.

Q: What technologies do you use?

Diane Roussel-Dupre: We believe that Rudolph's glowing, bright red nose puts out optical and infrared light that makes him easy to detect, allowing an optical camera on FORTE to give us a glimpse of Santa and his team. Also, the Federal Aviation Administration requires Santa to fly with a radio transponder on his sleigh, similar to what airplanes use, to ensure flight safety around the world. This transponder can be detected with the radio receiver that flies on-board both the FORTE and Cibola Flight Experiment (CFE) satellites. We will also be using the star cameras on the CFE satellite to look for Rudolph and the rest of the reindeer pulling Santa's sleigh.

4th Circuit Rejects Establishment Clause Challenge To County's Role In Development That Includes Church

In Glassman v. Arlington County, Virginia, (4th Cir., Dec. 23, 2010), the U.S. 4th Circuit Court of Appeals rejected an Establishment Clause challenge to Arlington County, Virginia's participation in the financing and construction of a ten story building that houses a church on the first two floors and apartments on the upper 8 floors. Plaintiff unsuccessfully argued that (1) the County had engaged in disguised funding of the church by overvaluing the affordable housing units in the project; (2) the physical layout of the building, in which the apartment tenants will pass through church property, creates a religious overtone to the project; and (3) the County became excessively entangled with the church when it appointed a representative to the Church-controlled board of the non-profit corporation that will over see construction of the project. (See prior related posting.)

Woman Challenges Virgin Islands License Photo Rule

Yesterday's Virgin Island Daily News reports that a Muslim woman is challenging a policy of the Virgin Islands Bureau of Motor Vehicles that allows her to have her drivers' licence photo taken wearing her hijab (head scarf) only if she produces a letter from her imam.  License applicant Nailah Jamil says she was told she needed a notarized affidavit from the imam, though now authorities say notarization is not required. The Council on American-Islamic relations has sent a letter to the BMV director on behalf of Jamil saying that the Virgin Islands' photo policy is "contrary to all federal, state and local government photography guidelines, which provide for religious exemptions."

New Minnesota Judge Pick Represented Conservative Christian Groups

The Minnesota Independent reports that on Tuesday, Minnesota's Gov. Tim Pawlenty appointed attorney Jamie L. Anderson to a vacancy created by a retirement on the state's 4th District (Hennepin County) Court. Anderson is the wife of the Governor's chief of staff and has represented conservative religious groups in high profile cases.  She represented the Minnesota Family Council in its effort to intervene as a defendant in a case challenging Minnesota's ban on same-sex marriage. In 2009, she was one of the lawyers who represented the Child Evangelism Fellowship of Minnesota in a case in which it was seeking an equal right with secular groups to to send Christian literature home with students. In 2007, Anderson was a lobbyist for born-again-Christian Frank Vennes who was a large donor to evangelical groups. However Anderson's primary areas of practice are business law, wills and trusts, probate and real estate. In appointing Anderson, Gov. Pawlenty bypassed the state's Commission on Judicial Selection which makes recommendations to the governor.  Legally governors may bypass the Commission and others have also done so.

Pakistan's Federal Shariat Court Asserts Expanded Jurisdiction; Invalidates Provisions of Women's Protection Act

On Wednesday, according to Business Recorder, Pakistan's Federal Shariat Court (FSC) declared three sections of the 2006 Women's Protection Act void, finding that the provisions violate Section 203DD of Pakistan's Constitution. That section defines the jurisdiction of  the FSC as including the power to reveiw the finding of any criminal court under any law relating to the enforcement of Hudood. An editorial from the Pakistan's Daily Times describes the effect of the FSC's ruling. It says that the FSC decision:

seeks to restore the primacy of Hudood laws in cases relating to the offence of zina (adultery) and qazaf (false accusation of adultery), which have a long history of abuse and injustice. The Women’s Protection Act 2006 omitted two sections of the Hudood Ordinances which, to some extent, reduced the likelihood of abuse of these laws against women accused of adultery. Their cases could now be tried under the Pakistan Penal Code, instead of exclusively under the Hudood Ordinance. 

However, not only did the FSC declare Sections 11, 25, 28 and 29 of the Women’s Protection Act 2006 un-Islamic and unconstitutional on the premise that the overriding effect of the Hudood Ordinances over other laws could not be taken away, it also asserted that the jurisdiction to hear appeals under any law relating to ten offences covered by the term ‘hudood’ for the purpose of Article 203 DD of the constitution lies with the FSC and not the high courts. The FSC thus gave parliament time till June 22, 2011 to make amendments to the Women’s Protection Act to restore these clauses, otherwise the court’s verdict would stand and these clauses would be considered restored. The court also directed the government to amend the Control of Narcotic Substances Act of 1997 and Anti-Terrorism Act 1997 to lay down a procedure for filing of appeals to the FSC instead of a high court for such offences.... 

According to the Business Recorder, the ten offenses over which the FSC has asserted jurisdiction are: Zina (adultery), Liwatat (sexual intercourse against the order of nature), Qazaf (imputation of adultery), Shurb (alcoholic drinks/intoxicants/narcotics etc), Sarqa (theft simplicitor), Haraba (robbery, highway robbery, dacoity - all categories of offences against property as mentioned in Chapter XVII of Pakistan Penal Code), Irtdad (apostasy), Baghy (treason), Qisas (right of retaliation in offences against human body) and human trafficking.

TSA Procedures Continue To Offend Some On Religious Grounds

Today's Washington Post carries an article titles TSA Procedures Offend Followers of Many Faiths. It reports that while Muslim women are particularly offended by the full body scanners in use at airports, they are not alone. Sikhs (who are often required to remove their turbans), some Orthodox Jews and some evangelical Christians also object on religious grounds, citing modesty concerns. Some say that TSA's rules that call for secondary screening for those wearing "bulky clothing" are applied subjectively with a bias against religious headgear.

High School Teacher In Spain Sued By Muslim Family For Discussing Ham

Hudson New York reports on a lawsuit filed recently in Spain by parents of a Muslim high school student charging a high school geography teacher with violating Article 525 of the Spanish Penal Code that makes it illegal to "offend the feelings of members of a religious confession." José Reyes Fernández, a teacher at Menéndez Tolosa, a school in the town of La Línea de la Concepción, was focusing on the different climates in Spain. He said that the climate in Andalusia was perfect for curing Spanish ham. A Muslim student interrupted and said that talk of pork products is offensive to his religion. According to the article, this lawsuit follows several other controversies in Spain with members of the Muslim community. For example, in September a recently reopened night club in the southern Spanish resort town of Aguilas was pressured by Muslims to change its name from La Meca. The owners also agreed to change some of club's architecture such as a minaret-like tower that Muslims found offensive.

No Federal Jurisdiction Over Claim Against Church Alleging Homosexual Activities

In Hayes v. Wooten, 2010 U.S. Dist. LEXIS 134569 (ED NC, Dec. 14, 2010), a North Carolina federal district court dismissed a federal lawsuit against Elevation Baptist Church and several of its leaders by a pro se plaintiff who alleged various claims growing out of his attendance at a group discussion at which he claims homosexual approaches were made to him and his attendance with his son at a church event called "Boys to Men" which he claims turned out to have a "very homosexual character in nature and spirit." The court found no federal jurisdiction over the claims-- many of which were claims under state law. No diversity of citizenship existed; no facts were plead to support plaintiff's Title VII claim; and insofar as a First Amendment "conspiracy to violate religious expression" claim was alleged, no state action was involved.

UN Approves US-Led Campaign To Restore Reference To Sexual Orientation In Resolution Against Arbitrary Executions

Yesterday by a vote of 93 to 55 with 27 abstentions, the United Nations General Assembly approved a United States sponsored move to restore a reference to sexual orientation in a resolution that condemns extrajudicial, summary and arbitrary executions. Reuters reports that the resolution condemns killings for racial, national, ethnic, religious or linguistic reasons and killings of refugees, indigenous people and other groups. Similar resolutions in prior years also referred to sexual orientation, but this year a General Assembly committee approved a proposal by Arab and African nations to eliminate that reference. The United States led the effort to restore the reference. According to Politico, the U.S. though ended up abstaining when the overall resolution including the reference to sexual orientation was put to a vote. The U.S. action was for totally different reasons-- concern that the resolution obscures the relationship between international humanitarian law and human rights law.

After the U.N. vote approving the U.S. proposal, the White House issued a statement (full text) reading in part:

President Obama applauds those countries that supported the amendment offered by the United States to ensure that "sexual orientation" remains covered by the United Nations resolution on extrajudicial, summary, and arbitrary execution. Killing people because of their sexual orientation cannot be rationalized by diverse religious values or varying regional perspectives. Killing people because they are gay is not culturally defensible – it is criminal.

While today’s adoption of an inclusive resolution is important, so too are the conversations that have now begun in capitals around the world about inclusion, equality, and discrimination. Protecting gays and lesbians from state-sponsored discrimination is not a special right, it is a human right.

Lawsuit Claims Transportation Utility Fee Is Illegal Disguised Property Tax On Churches

On Monday, a lawsuit was filed in state court in Kansas on behalf of a Baptist and a Catholic church challenging a new tax provision adopted by the city of Mission, Kansas.  The complaint (full text) in First Baptist Church of Mission v. City of Mission, (Johnson Co. Dist. Ct., filed 12/20/2010), argues that the city's Transportation Utility Fee is in reality a property tax levied on churches that are exempt under state law from property taxation. The tax is based on the average number of vehicle trips which it is estimated are generated by a property each year.  For houses of worship, this is based on the number of seats in the building's worship area. The proceeds of the tax are used for street repairs and transit system maintenance.  An Alliance Defense Fund press release announcing filing of the case characterizes the Transportation Utility Fee as a tax that punishes churches based on their attendance.

Split 10th Circuit Denies En Banc Review In Utah Highway Patrol Cross Case

The 10th Circuit Court of Appeals this week by a 5-4 vote denied an en banc rehearing in American Atheists, Inc. v. Davenport, (10th Cir., Dec. 20, 2010). The 4 dissenting judges filed two opinions detailing their concerns about the 3-judge panel's ruling handed down in August. That decision held that the Utah violated the Establishment Clause when it permitted the Utah Highway Patrol Association to put up crosses on public land as memorials to Highway Patrol members who were killed in the line of duty. [corrected]. (See prior posting.) Urging en banc review, Judge Kelly writing for all four dissenters said:

The court’s decision continues a troubling development in our Establishment Clause cases—the use of a "reasonable observer" who is increasingly hostile to religious symbols in the public sphere and who parses relevant context and history to find governmental endorsement of religion.

A second dissent from denial of review written by Judge Gorsuch and joined by Judge Kelly said in part:

Our court has now repeatedly misapplied the "reasonable observer" test, and it is apparently destined to continue doing so until we are told to stop.... It seems we must ... take account of our observer's selective and feeble eyesight. Selective because our observer has no problem seeing the Utah highway patrol insignia and using it to assume some nefarious state endorsement of religion is going on; yet, mysteriously, he claims the inability to see the fallen trooper’s name posted directly above the insignia.

[Thanks to Don Byrd for the lead.] 

Human Rights Watch Publishes Its Stance On Europe's Ban on Muslim Veils

In response to the growing trend in European countries to ban religious dress in public places-- particularly face coverings worn by Muslim women-- Human Rights Watch yesterday published Questions and Answers on Restrictions on Religious Dress and Symbols in Europe. It says in part:

Human Rights Watch takes no position on whether the wearing of the headscarf or face covering veils is desirable. We oppose both policies of forced veiling and blanket bans on the wearing of religious dress. Insofar as religious freedom is involved, we defend this right in the same spirit we defend freedom of expression - we uphold the right to express opinions which some deem contrary to the principles of human dignity, tolerance and respect, and which may deeply offend, because of the fundamental importance of freedom of religion and expression in democratic societies.

We also oppose laws prohibiting civil servants, including teachers, from wearing religious symbols at work, unless it has been shown that those symbols have a direct impact on their ability to perform their jobs.

6th Circuit Majority Holds Zoning Challenge By Religious Order Is Not Ripe

In Miles Christi Religious Order v. Township of Northville, (6th Cir., Dec. 21, 2010), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that First Amendment and RLUIPA challenges to the zoning ordinances of Northville, Michigan should be dismissed for lack of ripeness. Plaintiff, a Catholic Religious Order, had not appealed to the zoning board of appeals the township's demand for a site plan for continued use of its property. In response to the Order's argument that the township's actions chilled its constitutionally protected activity, the majority said:

a claim does not become ripe at the first whiff of governmental insensitivity or whenever a government official takes an adverse legal position against someone, even if one potential response is to curtail protected activities.

Chief Judge Bachtelder dissenting argued that: "the majority opinion does not adequately account for the First Amendment implications of this case and conflates the exhaustion of administrative remedies with the obtaining of a final decision...." [Thanks to Brian D. Wassom for the lead.]

6th Circuit: Collateral Estoppel Bars Relitigation of State Secrets Dismissal of Civil Rights Claim

In Tenenbaum v. U.S. Department of Defense, (6th Cir., Dec. 20, 2010), the U.S. 6th Circuit Court of Appeals held that the doctrine of collateral estoppel prevents plaintiffs from relitigating the application of the "state secrets" doctrine to their claim against the federal government. Plaintiff David Tenenbaum, a civilian employee of the Army, was subjected to an intensive investigation in 1997 over allegations that he had revealed classified information to the Israeli government. In 1998, Tenenbaum and his wife sued for violation of their civil rights, including an allegation that Tenenbaum's religion was a factor in the government's deciding to investigate him. That suit was dismissed when the government asserted that it could not mount a defense without disclosing state secrets. Following submission by DOD Inspector General of a report on the matter to the U.S. Senate Armed Services Committee in 2008, plaintiffs filed the present lawsuit alleging that defendants knowingly lied when they asserted the state secrets privilege in 1998. The Court held, however, that the question of whether the state secrets privilege had been properly invoked had already been litigated in 1998. Yesterday's Chicago Tribune reports on the decision. (See prior related posting.)

Italian Court Refuses To Release Vatican Funds Held In Money Laundering Probe

For a second time, a court in Italy has refused to release $30.2 million in funds belonging to the Vatican Bank (the Institute for the Works of Religion) seized in September by Italian authorities in a money laundering investigation. (See prior posting.) The funds were in a Vatican Bank account at the Rome branch of Credito Artigiano SpA.  According to AP yesterday, court documents show that prosecutors suspect that clergy may have been front men for corrupt businessmen or mobsters.

11th Amendment Protects Against Official Capacity, But Not Individual Capacity, Suit Against Judge

In Pucci v. Nineteenth District Court, (6th Cir., Dec.16, 2010), the U.S. 6th Circuit Court of Appeals held that a state court and its judge in his official capacity have 11th Amendment immunity in a suit by the former deputy court administrator who claims she was dismissed in retaliation for her complaints to state officials about the judge's use of religious language from the bench. The 6th Circuit went on to hold, however, that plaintiff may sue the judge in his individual capacity for declaratory and injunctive relief. The court concluded Chief Judge Mark Somers did not have qualified immunity as to plaintiff's due process or First Amendment claims against him. Local attorneys as well as plaintiff complained about Somers.  The 6th Circuit included this excerpt from the record setting out complaints about the judge's conduct:

Judge Somers used official court stationary on three separate occasions to send official correspondence affixing a quote from a biblical passage[;] . . . [according to Foran,] a “Muslim boy got a stiffer sentence because of the fact that whatever offense he had, it happened during . . . Ramadan[]”; [o]thers complained that Judge Somers lectured defendants about marijuana, declaring that it was the devil’s weed or Satan’s surge, and that he would ask litigants in court if they go to church.

 Courthouse News Service reports on the decision. (See prior related posting.)

Virginia Legislator Plans To Propose Barring Gays From National Guard Service

Conservative Virginia state legislator Bob Marshall is raising a new kind of constitutional issue by his plans to introduce legislation in the Virginia legislature's House of Delegates that would ban gays from serving in the Virginia National Guard.  WTOP News reported yesterday that the move comes in response to Congress' recent passage of a repeal of Don't Ask, Don't Tell. Critics say that the National Guard is a federal military unit and that federal law would override any state limitation.  However Del. Marshall argues that states would never have ratified the U.S. Constitution if they did not retain unqualified control of their militias.

Turkey Will Include Alevis In New Textbooks

In Turkey, Faruk Celik, Minister of Work and Social Security, announced that new textbooks which incorporate information about the 6 to 12 million Alevis in the country will be available for the 2011-12 school year.  According to Today's Zaman, the new textbooks grow out of a government initiative directed at dealing with complaints by Alevis that their children in public schools are required to attend religious classes that focus on Sunni Islam. However Federation of Alevi-Bektaşi Associations Chairman Ali Balkız said his organization could not support compulsory religion classes, even if they include information about Alevism and Alevi figures.

Pope Sees Clergy Sex Abuse As Product of Moral Relativism

Pope Benedict XVI yesterday delivered an address (full text) during his traditional pre-Christmas meeting with the cardinals, archbishops, bishops, and members of the Roman Curia and of the Governorate of Vatican City State.  A significant portion of his remarks were an analysis of the clergy sex abuse scandal. He said in part:

In the vision of Saint Hildegard, the face of the Church is stained with dust.... We must accept this humiliation as an exhortation to truth and a call to renewal.... We must ask ourselves what we can do to repair as much as possible the injustice that has occurred. We must ask ourselves what was wrong in our proclamation, in our whole way of living the Christian life, to allow such a thing to happen....  

We are well aware of the particular gravity of this sin committed by priests and of our corresponding responsibility. But neither can we remain silent regarding the context of these times in which these events have come to light. There is a market in child pornography that seems in some way to be considered more and more normal by society. The psychological destruction of children, in which human persons are reduced to articles of merchandise, is a terrifying sign of the times. From Bishops of developing countries I hear again and again how sexual tourism threatens an entire generation and damages its freedom and its human dignity.... In this context, the problem of drugs also rears its head, and with increasing force extends its octopus tentacles around the entire world – an eloquent expression of the tyranny of mammon which perverts mankind.....

In order to resist these forces, we must turn our attention to their ideological foundations. In the 1970s, paedophilia was theorized as something fully in conformity with man and even with children. This, however, was part of a fundamental perversion of the concept of ethos. It was maintained – even within the realm of Catholic theology – that there is no such thing as evil in itself or good in itself. There is only a "better than" and a "worse than"..... Everything depends on the circumstances and on the end in view.... Morality is replaced by a calculus of consequences, and in the process it ceases to exist. The effects of such theories are evident today. Against them, Pope John Paul II, in his 1993 Encyclical Letter Veritatis Splendor, indicated with prophetic force in the great rational tradition of Christian ethos the essential and permanent foundations of moral action. Today, attention must be focussed anew on this text as a path in the formation of conscience.... 

Holidays At The White House Web Page

The White House Website currently features a page captioned Holidays at the White House. It carries videos of various holiday activities by the First Family, announces this year's White House holiday theme as "Simple Gifts," and furnishes holiday recipes and an online White House tour.

Court Says Father Can Talk With Children About His Belief In Plural Marriage

The Salt Lake Tribune reported Saturday that a Utah state trial court judge has changed the terms of a custody order to eliminate the restriction formerly placed on Joseph Compton that barred him from talking to his eight children about his belief in plural marriage and barred him from taking them to the 800-member community where Compton lives which is comprise mostly of members of the Apostolic United Brethren (the Allred Group). Kathleen Compton filed for divorce when Joseph refused to stop seeing a woman he wanted to become his second wife. (Joseph has not though entered into a polygamous relationship with the woman.) Kathleen is afraid that her children might join the Allred Group or marry someone from that community and become polygamists.  The judge wrote, however:

The court received no evidence that any of the petitioner’s children, adult or minor, have suffered real harm or will suffer substantiated potential harm as a result of his belief in the practice, even though the practice is criminal.... To restrict parent time based on illegal conduct may be appropriate, but the illegality [of polygamy] on its own is not sufficient to warrant restriction.

Recent Articles of Interest

From SSRN:

• Robert C. Blitt, Russia’s "Orthodox" Foreign Policy: The Growing Influence of the Russian Orthodox Church in Shaping Russia’s Policies Abroad, (December 14, 2010).
• Alan E. Brownstein, Gays, Jews, and Other Strangers in a Strange Land: The Case for Reciprocal Accommodation of Religious Liberty and the Right of Same-Sex Couples to Marry, (University of San Francisco Law Review, No. 45, 2010).
• Leslie C. Griffin, Snyder v. Phelps: Searching for a Legal Standard, (Cardozo Law Review De Novo, p. 353, 2010).
• Leslie C. Griffin, Smith and Women's Equality, (Cardozo Law Review, Vol. 32, 2011).
• Benjamin L. Berger, Section 1, Constitutional Reasoning, and Cultural Difference: Assessing the Impacts of Alberta v. Hutterian Brethren of Wilson Colony, (Supreme Court Law Review (2D), Vol. 51, pp. 25-46, 2010).
• Richael Faithful, Religious Exemption or Exceptionalism? Exploring the Tension of First Amendment Religion Protections and Civil Rights Progress within the Employment Non-Discrimination Act, (The Legislation and Policy Brief, Forthcoming).
• Mohammad Fadel, Muslim Reformists, Female Citizenship and the Public Accommodation of Islam in Liberal Democracy, (Politics and Religion, Cambridge University Press, 2012).
• Jeff Redding, Beyond Exclusion: A Review of Peter J. Spiro’s 'Beyond Citizenship', (Minnesota Law Review Headnotes, Vol. 95, p. 29, 2010).
• Asifa Quraishi, On Fallibility and Finality: Why Thinking Like a Qadi Helps Me Understand American Constitutional Law, (Michigan State Law Review, Vol. 2009, No. 2, 2009).
• Jeremy Waldron, Torture, Suicide, and Determinatio, (The American Journal of Jurisprudence, Vol. 55, 2010).

From SmartCILP:

• Nicholas Parsons &  Marcus Mietzner, Sharia By-laws in Indonesia: A Legal and Political Analysis, [Abstract], 11 Australian Journal of Asian Law 190-217 (2009).
• Geoffrey R. Stone, The Second Great Awakening: A Christian Nation?, 26 Georgia State University Law Review 1305-1333 (2010).
• Kevin J. Worthen, The NCAA and Religion: Insights About Non-State Governance from Sunday Play and End Zone Celebrations, 2010 Utah Law Review 123-140.
• Symposium: A Celebration of the Twentieth Anniversary of Mulieris Dignitatem, Part II. Articles by Mary G. Leary, Ernest Caparros, Sr. Thomas Augustine Becker, Jane F. Adolphe, Robert L. Fastiggi, Fr. John J. Coughlin, Katherine Shaw Spaht, Mary Shivanandan, Lisa Lickona, Joseph Isanga and Howard Bromberg. 8 Ave Maria Law Review 247-442 (2010).

Ontario High Court Upholds "Motive" Clause In Canada's Anti-Terrorism Law

In Regina v. Khawaja, (Ct App. ON, Dec. 17, 2010), the Court of Appeal for Ontario reversed the holding of a trial court below and upheld the constitutionality of the "motive clause" in the definition of "terrorist activity" in Canada's anti-terrorism law. An element of that law's definition of "terrorist activity" is that the act must have been "committed in whole or in part for a political, religious or ideological purpose, objective or cause." The trial court had found that because this provision will focus prosecutorial scrutiny on political, religious and ideological beliefs, its chilling effect renders it unconstitutional under Canada's Charter of Rights and Freedoms. (See prior posting.) The appeals court, however, reasoned:

There are many potential explanations for why people might feel a chilling effect when it comes to expressing extremist Islamic views. Perhaps, most obviously, there is the reality of the world we live in. Terrorism and the fear and uncertainty terrorism creates are facts of life. Fear can generate many things, including suspicion based on ignorance and stereotyping. Many, but by no means all, of the major terrorist attacks in the last 10 years have been perpetrated by radical Islamic groups fueled by a potent mix of religious and political fanaticism. It is hardly surprising that, in the public mind, terrorism is associated with the religious and political views of radical Islamists. Nor is it surprising that some members of the public extend that association to all who fit within a very broad racial and cultural stereotype of a radical Islamist.

In making these observations, we do not intend to condone profiling or stereotyping. We do, however, mean to say that the most obvious cause of any “chilling effect” among those whose beliefs would be associated in the public mind with the beliefs of terrorist groups is the temper of the times, and not a legislative provision that in all probability is unknown to the vast majority of persons who are said to be “chilled” by its existence....

The Toronto Star reports that this is one of six decisions released by Ontario's highest court on Friday which increased the prison sentences of three individuals and ordered two others extradited to the United States. The other 5 cases are R. v. Amara, R. v. Banwait, R. v. Gaya, R. v. Houssari,and R. v. Khalid.

Sudan's President Promises Islamic Constitution, Defends Sharia Punishments

Reuters today reports that Sudan's president, Omar Hassan al-Bashir, at a rally today told supporters that if Southern Sudan votes to secede in January's referendum, the rest of Sudan will adopt an Islamic constitution.  An interim constitution adopted in 2005 limited shariah law to the north and recognized "the cultural and social diversity of the Sudanese people." Bashir says that the recognition of that diversity will disappear in his new constitution. Bashir also defended a YouTube video of police lashing a woman, saying: "If she is lashed according to sharia law there is no investigation. Why are some people ashamed? This is sharia."

Recent Prisoner Free Exercise Cases

In Tapp v. Proto, (3d Cir., Dec. 13, 2010), the 3rd Circuit held that a two-week delay in providing plaintiff kosher meals and plaintiff's complaint that the meals lacked variety and were often cold did not amount to a violation of plaintiff's free exercise rights.

In Nichols v. Federal Bureau of Prisons, 2010 U.S. Dist. LEXIS 130879 (D CO, Nov. 30, 2010), a Colorado federal district court rejected a motion by convicted Oklahoma City bomber Terry Nichols to amend an earlier decision rejecting Nichols' free exercise and RFRA challenges to the diet he receives in prison. Nichols claimed that as a Christian, he must adhere to a high fiber diet of whole foods.

In Mauwee v. Palmer, 2010 U.S. Dist. LEXIS 131704 (D NV, Nov. 29, 2010), a Nevada federal district court dismissed a free exercise claim by a Native American spiritual leader who alleged that an eagle talon he possessed was confiscated by a prison officer.

In Wing v. Braye, 2010 U.S. Dist. LEXIS 131906 (SD IL, Dec. 14, 2010), and Illinois federal district court rejected as a de minimis burden on free exercise an officer's order to a Catholic inmate to either leave the prison chapel where no services were in progress or stay in a classroom where a Muslim class was under way.

In Howard v. Skolnik, 2010 U.S. Dist. LEXIS 132323 (D NV, Dec. 1, 2010), a Nevada federal magistrate judge concluded that plaintiff had not alleged sufficient irreparable harm to justify a preliminary injunction in his suit seeking reinstatement of Nation of Islam services in English at his former housing facility and an Order preventing his new housing facility from cancelling the Nation of Islam services.

In Lebaron v. Clarke, 2010 U.S. Dist. LEXIS 133156 (D MA, Dec. 3, 2010), a Massachusetts federal district court denied without prejudice ex parte injunctive relief requested by a Messianic Jewish prisoner who claimed that he was being retaliated against for requesting kosher meals, and that the kosher meals he receives are too small. He also claimed his request for religious materials and a place to study were denied.

In Riley v. Jones, 2010 U.S. Dist. LEXIS 132866 (D OK, Dec. 15, 2010), an Oklahoma federal district court adopted the recommendations of a federal magistrate judge (2010 U.S. Dist. LEXIS 133064, Nov. 19, 2010) and dismissed plaintiff's free exercise and RLUIPA challenges to the prison's vegetarian diet and plaintiff's claim that his rights were violated when he was switched from a religious vegetarian diet to a health diet ordered by doctors.

County Commission Says Denial of Increased Occupancy To Chabad House Does Not Violate RLUIPA

The Ventura County,California Planning Commission ruled Thursday that the county's Board of Supervisors did not violate the Religious Land Use and Institutionalized Persons Act when it refused an application from Chabad of Oak Park to raise the occupancy limits for Jewish Sabbath and religious services at a converted house used by the group as a synagogue. According to the Ventura County Star, Chabad wants to raise the limits from 70 to 145, saying the building can safely hold that number. The Board of Supervisors says that Chabad agreed to the 70 person limit in 1994 when it negotiated for a permit for the house. Fire inspectors say the building can hold up to 168 people safely.  Chabad says its members, who do not drive on the Sabbath, cannot easily get to other religious services if they show up and find that 70 people are already attending. Even though the Planning Commission ruled 4-1 that the county had used the least restrictive means to carry out its compelling zoning interests, the Commission said it hoped that the Supervisors would decide to raise the occupancy limit over the current 70. Chabad says it is not interested in compromising on a number less than 145.

Temporary Injunction Bans Christian Prayers At Municipal Council Meetings

The ACLU of New Jersey announced Friday that a state trial court has issued a temporary injunction barring the borough of Point Pleasant Beach (NJ) from opening municipal council meetings with prayers that reflect the personal religious belief of the council member offering the invocation.  Under a previous policy, the council opened its meetings with the clerk reciting the Lord's Prayer and making the sign of the cross.  When the ACLU filed suit in September (see prior posting), council agreed to end that policy and the suit was dropped.  However council then adopted a policy that allowed council members to lead prayers, resulting in the continuance of only Christian prayers at meetings. The ACLU claims that the practice violates provisions in the New Jersey Constitution that require government not to show a preference for one religion over another.

Federal Reserve Board Backs Off Policy of Barring Religious Displays In Bank

The Federal Reserve Board's Regulation B (12 CFR Part 202) implementing the Equal Credit Opportunity Act prohibit banks from making statements in their advertising or otherwise that would discourage an applicant for credit from applying because of the applicant's race, religion,gender marital status or age. (12 CFR 202.4). A Staff Interpretation of that provision provides that: "The use of words, symbols, models or other forms of communication in advertising that express, imply, or suggest a discriminatory preference or a policy of exclusion in violation of the Act." Examiners inspecting a bank in Perkins, Oklahoma last week created a stir by insisting that the bank's display of religious messages is in violation of this policy.

According to KOCO News, display of a Bible verse of the day on a screen in the bank and on the bank's website, crosses on the teller’s counter and buttons that say "Merry Christmas, God With Us," were seen by examiners as violating Regulation B. According to another report by KOCO News, U.S. Sen. Jim Inhofe and U.S. Rep. Frank Lucas sent a letter to the Federal Reserve Board calling the action an "all-out assault on the faith, values and rights of the bank, its employees and the people it serves". This led the Fed changed its mind. The president of Payne County Bank, Lynn Kinder, said that both sides have agreed to work out the issue and in the meantime the Fed has allowed the bank to restore its display of Christian items and verses. [Thanks to ReligionLaw listserv for the lead.]

Senate Passes DADT Repeal for Obama's Signature; Opponents Vow To Fight On

AP reports that the U.S. Senate today voted 65-31 to approve and send to the President for his signature the Don't Ask, Don't Tell Repeal Act of 2010. An identical bill was passed by the House earlier this week. (See prior posting.) 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. The President has promised to sign the bill into law. Earlier today he issued a statement reading in part:

It is time to recognize that sacrifice, valor and integrity are no more defined by sexual orientation than they are by race or gender, religion or creed. It is time to allow gay and lesbian Americans to serve their country openly. I urge the Senate to send this bill to my desk so that I can sign it into law.

In response to the Senate's action,  the Freedom Federation, a coalition of conservative religious and public policy groups issued a statement promising to fight for a reversal of Congress' action, saying:

Our armed forces should take heart, because the American people will not turn its back on you. This vote happened because opportunistic Senators – only days before Christmas – put political interest groups above supporting our men and women in uniform.

This action will be overturned in the next Congress because it breaks the bond of trust that must exist between the military and those who command in the Pentagon and Congress. Today’s vote will prove as costly to its proponents as ObamaCare was to its advocates. We promise a full mobilization of faith-based and policy organizations, veterans, and military families in the states of every Senator who voted for repeal of DADT against the advice of our service chiefs and during a time of war. Those Senators – and the Pentagon leaders responsible for this breach of trust – should understand that they will be the object of concerted political action against them.

Indiana County Will Not Remove Creche

Today's Richmond, Indiana Palladium-Item reports that Franklin County, Indiana Commissioners say that unless ordered to do so by a court, they will not remove a nativity scene owned by the town of Brookville and placed on the court house lawn around the flag pole each year by fire fighters.  The Freedom from Religion Foundation had complained about the display which is not part of a larger holiday display with secular symbols. (FFRF News Release with photo and letter.) A pair of reindeer is also on the court house lawn, but not near the nativity scene. County Commissioner Tom Wilson says that a donated Christmas tree was added to try to make the display more secular. 500 people rallied Saturday in support of the nativity scene. Wilson commented: "If we let them do this, let them take Christmas away, what's next?... If you ruffle the feathers of the people of Franklin County, you better be ready to fight because they know how to counterpunch."

Two New Hampshire Churches File RLUIPA Challenges To Zoning Denials

Today's Nashua (NH) Telegraph reports on two separate RLUIPA zoning lawsuits filed in federal district court in New Hampshire. In Merrimack Congregation of Jehovah's Witnesses v. Town of Merrimack, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs allege violations of RLUIPA and the state and federal equal protection clauses. They claim that their application for a special exception to locate in a residential area is the only application by a church to have been denied in 15 years. In Goffstown Harvest Christian Church v. Town of Goffstown, (D NH, filed 12/16/2010) (full text of complaint), plaintiffs claim that the town's amendment of its zoning ordinance to prohibit religious, but not non-religious, assemblies in areas zoned industrial violates RLUIPA, and the free exercise clauses and the equal protection clauses of the state and federal constitutions. New personnel on the Zoning Board of Adjustment refused to extend the church's site plan approval because they felt that the zoning changes were intended to encourage taxable industrial uses.

European Court Finds Problem With Ireland's Abortion Law Implementation

Yesterday in Case of A, B and C v. Ireland, (ECHR, Dec. 16, 2010), the Grand Chamber of the European Court of Human Rights dealt with challenges by three Irish women to Ireland's ban on abortions. The country's Constitution bans abortion. It however allows women to travel abroad for an abortion and allows abortions in Ireland where the mother's life (but not merely her health) is threatened. The Court found that the failure of the Irish parliament to implement the provisions on protection of a mother's life violates the European Convention on Human Rights. As summarized in the court's Press Release on the case:

Having regard to the first and second applicants’ right to travel abroad to obtain an abortion and to appropriate pre- and post-abortion medical care in Ireland, as well as to the fact that the impugned prohibition in Ireland on abortion for health or well-being reasons was based on the profound moral values of the Irish people in respect of the right to life of the unborn, the Court concluded that, the existing prohibition on abortion in Ireland struck a fair balance between the right of the first and second applicants to respect of their private lives and the rights invoked on behalf of the unborn.

However the Court found a violation of Article 8 of the European Convention on Human Rights as to the third woman. Again from the Court's Press Release:

[T]he third applicant had a rare form of cancer and she feared it might relapse as a result of her being pregnant. The Court considered that the establishment of any such risk to her life clearly concerned fundamental values and essential aspects of her right to respect for her private life.

It went on to find that the only non-judicial means for determining such a risk on which the Government relied, the ordinary medical consultation between a woman and her doctor, was ineffective. The uncertainty surrounding such a process was such that it was evident that the criminal provisions of the 1861 Act constituted a significant chilling factor for women and doctors as they both ran a risk of a serious criminal conviction and imprisonment if an initial doctor’s opinion that abortion was an option as it posed a risk to the woman’s health was later found to be against the Irish Constitution.

Neither did the Court consider recourse by the third applicant to the courts (in particular, the constitutional courts) to be effective, as the constitutional courts were not appropriate for the primary determination of whether a woman qualified for a lawful abortion.... Consequently, the Court concluded that Ireland had breached the third applicant’s right to respect for her private life given the failure to implement the existing Constitutional right to a lawful abortion in Ireland. Accordingly, there had been a violation of Article 8.

Six dissenting judges would have found that the rights of all three women were infringed.  The Guardian reports on the decision.

White House Enlists Clergy To Back DREAM Act

Religion Dispatches reports that the White House yesterday hosted a call for reporters with four members of the clergy who are supporting passage of the DREAM Act.  The Act offers citizenship to young people brought to the U.S. illegally as children who pursue higher education or join the military. Speaking in favor of the bill, Noel Castellanos of the Christian Community Development Association; Rabbi Jack Moline of Agudas Achim Congregation in Alexandria, VA; Pastor Joel Hunter of Northland, A Church Distributed in Longwood, Florida; and Pastor Rich Nathan of Vineyard Columbus in Columbus, Ohio all focused on the religious imperative to welcome the stranger. A version of the DREAM Act passed the House earlier this month (Skokie Patch), but Senate action is now required.

New Swiss Policy Will Bar U.S. Missionaries

The Rexburg, Idaho Standard Journal yesterday reports that Switzerland will effectively bar all missionaries from non-European countries from serving in Switzerland beginning in 2012.  In 2002, a bilateral accord between Switzerland and the European Union provided that European nationals can enter Switzerland to work, but work permits for people from other countries were severely restricted. Then recently a Swiss court held that missionary work is "gainful employment" and so is subject to the quotas on work permits.  The restrictions pose a particular problem for the Mormon Church which has a long history of sending missionaries to Switzerland.  In August, 14 US Senators wrote the Swiss government urging that LDS missionaries be allowed to continue coming into the country, pointing out that these missionaries are not paid while on missions.  So theydo not compete with other workers nor do they receive social benefits from the Swiss government.

DC Circuit Upholds FTC Jurisdiction Over Purported Religious Organization

In Daniel Chapter One v. FTC, 2010 U.S. App. LEXIS 25496 (DC Cir., Dec. 10 2010), the D.C. Circuit Court of Appeals held that an organization's formal legal status as a religious corporation sole does not prevent the Federal Trade Commission from regulating its advertisements for dietary supplements.  The organization in fact operated as a for-profit entity generating economic benefits for its founder and his wife. The court also rejected petitioner's argument that the FTC violated the Establishment Clause by using "scientism" as the basis for its requirements.