Herman Cain's Church Affiliation Explored

Today's Atlanta Journal Constitution profiles Republican presidential candidate Herman Cain's home church in Atlanta. The article is captioned Church's Pride in Cain Outweighs Differences.  Cain has been a member of the Antioch Baptist Church North for more than 30 years. The article reports:

For church members, Cain’s run for office is a point of pride — chagrin, too. He’s on a national stage, taking aim at President Barack Obama, who overwhelmingly carried the African-American vote in the 2008 election and still enjoys an 85 percent approval rating among blacks.

Post-Revolutionary Libyan Leader Endorses Islam-Based Constitution

In a ceremony in Benghazi, Libya yesterday, Mustafa Abdel-Jalil, the chairman of the Transitional National Council, declared that Libya's revolution has now ended, as he endorsed Islamic goals. According to the New York Times, Abdel-Jalil said: "We are an Islamic country. We take the Islamic religion as the core of our new government. The constitution will be based on our Islamic religion." He promised to create Islamic banks in the new Libya.

Recent Articles and Film of Interest

From SSRN:

• Zoe Robinson, Rationalizing Religious Exemptions: A Legislative Process Theory of Statutory Exemptions for Religion, (William & Mary Bill of Rights, Forthcoming).
• Parveen Ara Pathan, Idea of Right of Maintenance of Woman in Islam and Socio Legal Development in India, (October 18, 2011).
• Samuel J. Levine, Jewish Law from Out of the Depths: Tragic Choices in the Holocaust, (Washington University Global Studies Law Review, Vol. 10, No. 1, 2011).
• Jeffrey Shulman, The Siren Song of History: Originalism and the Religion Clauses, (Journal of Law and Religion, Vol. 27, p. 101, 2011).

From SmartCILP:

• Edward A. Fallone, Funding Stem Cell Research: The Convergence of Science, Religion & Politics In the Formation of Public Health Policy, 12 Marquette Elder's Advisor 247-293 (2011).
• Marci A. Hamilton, The Endorsement Factor, 43 Arizona State Law Journal 349-387 (2011).
• Anton Schutz, A Quandary Concerning Immanence, [Abstract], 22 Law & Critique 189-203 (2011).
• Symposium in Miniature: Religious Symbols on Government Property. Articles by John Witte, Jr., Nina-Louisa Arold, Andrea Pin and student Adam Linkner. 25 Emory International Law Review 5-149 (2011).

New Film:

• Vic Losick, In God We Teach, (2011).

Hertz Fires Muslim Employees For Refusing To Clock Out For Prayers

AP reported Friday that Hertz, the rental car company, is firing 26 Somali Muslim employees at Seattle-Tacoma International Airport because they refuse to clock out for their daily prayer breaks. The Teamsters local union that represents the workers says that the company agreed during negotiations last year that the employees would not need to clock out. Hertz says that the failure of many employees to return promptly after their prayers had created an unfair work environment.

Recent Prisoner Free Exercise Cases and Note on New Format

Note to readers: Today my weekly compilation of prisoner free exercise cases appears in an abbreviated format which I plan to use in the future.  The prior format which included summaries had begun to consume far too much of my time for what I perceive the value of the summaries to be. If readers disagree with this assessment of the value of the prior format, please let me know by e-mail.

Here are recent decisions in which federal or state prisoners seek relief-- usually asserting free exercise and/or RLUIPA claims-- regarding conditions of confinement or other issues they perceive to infringe their religious exercise.  These cases often involve access to religious diets, materials or services while incarcerated:

Williams v. Sibbett, 2011 U.S. App. LEXIS 21103 (10th Cir., Oct. 18, 2011)

Jackson v. Goord, 2011 U.S. Dist. LEXIS 117539 (WD NY, Oct. 11, 2011)

McKissick v. Owens, 2011 U.S. Dist. LEXIS 118237 (MD GA, Oct. 13, 2011)

Somie v. GEO Group, Inc., 2011 U.S. Dist. LEXIS 118546 (ED NC, Oct. 12, 2011)

Rupe v. Cate, 2011 U.S. Dist. LEXIS 118414 (ED CA, Oct. 11, 2011)

Fitch v. City of Leitchfield, 2011 U.S. Dist. LEXIS 118696 (WD KY, Oct. 11, 2011)

Cooper v. Evans, 2011 U.S. Dist. LEXIS 117991 (SD IL, Aug. 3, 2011), adopted by 2011 U.S. Dist. LEXIS 114891 (Oct. 5, 2011)

McKenzie v. Ellis, 2011 U.S. Dist. LEXIS 118373 (S.D. Cal. July 18, 2011), adopted by 2011 U.S. Dist. LEXIS 112222, (Sept. 29, 2011)

Turner-Bey v. Maynard, 2011 U.S. Dist. LEXIS 118883 (D MD, Oct. 13, 2011).

Walton v. Sing, 2011 U.S. Dist. LEXIS 119798 (ED CA, Oct. 17, 2011).

McChesney v. Hogan, 2011 U.S. Dist. LEXIS 119690 (ND NY, Aug. 2, 2011), accepted in part and rejected in part by 2011 U.S. Dist. LEXIS 112525 (Sept. 30, 2011).

Egyptian Court Sentences Facebook Poster To 3 Years For Insulting Islam

AFP reports that in Egypt yesterday, a court sentenced Ayman Yusef Mansur to 3 years in prison at hard labor for Facebook postings that "intentionally insulted the dignity of the Islamic religion and attacked it with insults and ridicule."

Default Judgments Totaling $3M Entered Against Former Priest

According to the Boston Globe, yesterday a Massachusetts state trial court awarded two clergy sex abuse victims damages of $2 million and $1 million respectively after former Catholic priest John Dority failed to appear in court or respond to a lawsuit filed against him.  The 70-year old Dority, now a registered sex offender living in Connecticut, earlier told reporters that he did not respond to the lawsuit because he could not afford an attorney. He has admitted molesting the two victims and says he is very sorry.

Is Washington Anti-Discrimination Exemption for Religious Organizations Constitutional?

In Donelson v. Providence Health Services, 2011 U.S. Dist. LEXIS 119194 (ED WA, Oct. 14, 2011), a former employee of a Catholic sponsored skilled nursing facility sued claiming she was wrongfully terminated because of an injury. In response to plaintiff's claim under the Washington Law Against Discrimination, the nursing facility invoked the exemption in the statute for non-profit religious organizations.  Plaintiff argued that insofar as that statutory exemption allowed sectarian organizations to discriminate on grounds other than religion, it violates Sec. 11 of the Washington Constitution "because it grants religious organizations broad license to discriminate on grounds such as disability, gender, and race, thereby improperly favoring religion over non-religion." In response, the federal court asked to parties to file briefs on whether the federal court should certify the question to the Washington Supreme Court.

8th Circuit Enjoins Nebraska Funeral Picketing Law

In Phelps-Roper v. Troutman, (8th Cir., Oct. 20, 2011), a 3-judge panel of the 8th Circuit held that the district court should have granted a preliminary injunction barring enforcement of the Nebraska Funeral Picketing Law against members of the Westboro Baptist Church-- a group that pickets military funerals, among other places, protesting tolerance of homosexuality in the United States.  The court was bound by a 2008 decision by the 8th Circuit which enjoined enforcement of a similar statute on free speech grounds. However in separate opinions the judges questioned the correctness of that 2008 precedent. The Columbia Daily Tribune reports on the decision.

Bus Line In New York Hasidic Neighborhoods Segregates Sexes

The New York World reported earlier this week on an unusual arrangement for bus service in Brooklyn, New York on a line that runs between the Hasidic Orthodox Jewish neighborhoods of Williamsburg and Borough Park.  A private company pays the city to allow it to provide public bus service on the route, and the company in turn collects fares from passengers. The buses-- at the behest of a board of consulting rabbis-- require men to sit an the front and women to sit in the back in order to prevent physical contact between members of the opposite sex.  The city Department of Transportation however says that the bus line-- as a public service-- is subject to anti-discrimination laws, and it is asking the company about the situation. [Thanks to Jean Dudley via Religionlaw for the lead.]

Revised Plan To Transfer Land To Catholic School Still Violates Establishment Clause

In Wirtz v. City of South Bend, Indiana, (ND IN, Oct. 19, 2011), and Indiana federal district court rejected a revised plan by South Bend to transfer land for use by a Catholic high school for construction of athletic facilities.  Last month the court held that the proposed transfer violates the Establishment Clause. (See prior posting.) In this decision, the court likewise rejected a new plan that called for sale of the land to the highest bidder, but with discretion to reject the high bid in favor of a lower one that promises to use the land to promote development of St. Joseph High School. The court said: "given the recent history of the City’s acquisition and attempt to convey the parcel here at issue, the City can’t do so with its stated criteria for selecting among bidders without sending a message of endorsement of the Catholic faith."  A press release from Americans United announced the decision. [Thanks to Don Byrd for the lead.]

Republican Debate Includes Role of Religion In Choosing Nominee

Last night's Republican presidential debate in Las Vegas sponsored by CNN included a lengthy discussion of the role of religion in choosing a candidate, in light of statements earlier this month by Rev. Robert Jeffress that Christians should not vote for Mitt Romney because he is a Mormon. (See prior posting.). Last night's debate was moderated by Anderson Cooper.  Here is an excerpt from the full Part 3 transcript:

COOPER: Should voters pay attention to a candidate's religion? SANTORUM: I think they should pay attention to the candidate's values, what the candidate stands for....

SANTORUM: That's what is at play. And the person's faith -- and you look at that faith and what the faith teaches with respect to morals and values that are reflected in that person's belief structure. So that's -- those are important things.

I -- I'm a Catholic. Catholic has social teachings. Catholic has teachings as to what's right and what's wrong. And those are legitimate things for voters to look at, to say if you're a faithful Catholic, which I try to be -- fall short all the time, but I try to be -- and -- and it's a legitimate thing to look at as to what the tenets and teachings of that faith are with respect to how you live your life and -- and how you would govern this country.

With respect to what is the road to salvation, that's a whole different story. That's not applicable to what -- what the role is of being the president or a senator or any other job....

 COOPER: Speaker Gingrich, you agree with that?

GINGRICH: Well, I think if the question is, does faith matter? Absolutely. How can you have a country which is founded on truths which begins we are endowed by our creator with certain inalienable rights? How can you have the Northwest Ordinance of 1787 which says religion, morality and knowledge being important, education matters. That's the order: religion, morality and knowledge.

Now, I happen to think that none of us should rush in judgment of others in the way in which they approach God. And I think that all of us up here I believe would agree....

But I think all of us would also agree that there's a very central part of your faith in how you approach public life. And I, frankly, would be really worried if somebody assured me that nothing in their faith would affect their judgments, because then I'd wonder, where's your judgment -- how can you have judgment if you have no faith? And how can I trust you with power if you don't pray?...

Who you pray to, how you pray, how you come close to God is between you and God. But the notion that you're endowed by your creator sets a certain boundary on what we mean by America.

COOPER: Governor Perry, Mitt Romney asked you to repudiate the comments of that pastor who introduced you on that stage. He didn't make the comments on the stage; he made them afterward in an interview. Will you repudiate those comments? ROMNEY: Well, our faith -- I can no more remove my faith than I can that I'm the son of a tenant farmer. I mean, the issue, are we going to be individuals who stand by our faith? I have said I didn't agree with that individual's statement. And our founding fathers truly understood and had an understanding of -- of freedom of religion.

And this country is based on, as -- as Newt talked about, these values that are so important as we go forward. And the idea that we should not have our freedom of -- of religion to be taken away by any means, but we also are a country that is free to express our opinions. That individual expressed an opinion. I didn't agree with it, Mitt, and I said so. But the fact is, Americans understand faith. And what they've lost faith in is the current resident of the White House....

ROMNEY: You know, with -- with regards to the disparaging comments about my faith, I've heard worse, so I'm not going to lose sleep over that....

What I actually found was most troubling in what the reverend said in the introduction was he said, in choosing our nominee, we should inspect his religion. And someone who is a good moral person is not someone who we should select; instead, we should choose someone who subscribes to our religious belief.

That -- that idea that we should choose people based upon their religion for public office is what I find to be most troubling, because the founders of this country went to great length to make sure -- and even put it in the Constitution -- that we would not choose people who represent us in government based upon their religion, that this would be a nation that recognized and respected other faiths, where there's a plurality of faiths, where there was tolerance for other people and faiths. That's bedrock principle.

And it was that principle, Governor, that I wanted you to be able to, no, no, that's wrong, Reverend Jeffress. Instead of saying as you did, "Boy, that introduction knocked the ball out of the park," I'd have said, "Reverend Jeffress, you got that wrong. We should select people not based upon their faith." Even though -- and I don't suggest you distance yourself from your faith any more than I would. But the concept that we select people based on the church or the synagogue they go to, I think, is a very dangerous and -- and enormous departure from the principles of our -- of our Constitution.

Court Says Counseling By Nun Is Not Privileged

According to the Parsippany, NJ Daily Record, and the Newark Star-Record,  a New Jersey state judge yesterday ruled that a nun who counseled a murder suspect can be called to testify against the suspect at trial. Sister Catherine Morrisett is a nun who is trained in therapy, but she is not a licensed psychologist. While she has a doctorate in ministry, she is not authorized by the Church to hear confessions or offer the sacrament of absolution. Therefore none of the traditional privileges against testifying apply to her.

Anti-Church Party Gets Surprising 3rd Place Win In Poland

Last Sunday in Parliamentary elections, Poland re-elected Prime Minister Donald Tusk who, according to AP, is holding coalition talks with the small Polish People's Party. The surprise, however, was the third-place showing of a new party, Palikot Movement (Movement of Support), which received 10% of the vote. According to CNS, the Palikot Movement campaigned against Catholic Church involvement in the Polish government:

The movement's leader, millionaire businessman Janusz Palikot, accused the church of "taking sides in politics," and said religious symbols had been "used disgracefully for political struggles."

He added that Poland needed "defending against Catholicism, not Catholicism against Poland," and said his first moves would include securing the removal of a cross from the Sejm, Poland's lower legislative chamber.

Poland's Catholic bishops reacted angrily to calls for religion to be less present in public life.

Recent Prisoner Free Exercise Cases

In Smith v. Marshall, 2011 U.S. App. LEXIS 20619 (9th Cir., Oct. 11, 2011), the 9th Circuit Court of Appeals held that a prison's restrictions on third-party purchases of prayer oil did not substantially burden an inmate's ability to practice his religion.

In Davis v. Thaler, 2011 U.S. Dist. LEXIS 116912 (SD TX, Oct. 6, 2011), a Texas federal district court rejected claims of a Christian Nazarite prisoner that his rights under the 1st Amendment and RLUIPA were violated by requiring him to cut his hair and beard.

In Jones v. Petty, 2011 U.S. Dist. LEXIS 111368 (MD GA, Sept. 29, 2011), a Georgia federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116716, Sept. 6, 2011) and allowed a Muslim inmate to proceed with his claim for nominal damages because of interference with his use of a prayer rug and with his non-pork diet.

In Goodson v. Maggi, 2011 U.S. Dist. LEXIS 82702 (WD PA, July 27, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116853, July 6, 2011) and dismissed an inmate's complaint that while in the Special Housing Unit he was denied religious meetings, including ones with a Catholic representative, and no church services were available to him.

In Smith v. Thomas, 2011 U.S. Dist. LEXIS 117482 (ED VA, Oct. 12, 2011), a Virginia federal district court adopted a magistrate's recommendations and rejected an inmate's complaint that he was denied the opportunity to receive religious materials from the chaplain's cart or office while he was in administrative segregation.

In Iscaro v. Unknown Party #1, 2011 U.S. Dist. LEXIS 116997 (WD MI, Oct. 11, 2011), a Michigan federal district court rejected an inmate's claim that his rights were violated when he was denied clergy visits with two specified individuals.

In Williams v. Dart, 2011 U.S. Dist. LEXIS 116993 (ND IL, Oct. 11, 2011), an Illinois federal district court rejected an inmate's claim that he was able to attend only one communal Muslim service and was not provided a proper religious diet during his four-months in the Cook County Jail.

Limits On Travel For Religious Purposes Pending Trial OK'd By Vermont High Court

In State of Vermont v. Johnson, (VT Sup. Ct., Sept. 21, 2011), the Vermont Supreme Court upheld the conditions imposed by a trial court in releasing Janette Johnson pending her trial for aggravated domestic assault with a deadly weapon.  The conditions include not leaving Bennington County, except for church services in Cambridge, New York. Johnson unsuccessfully sought a modification so that she could also travel around New York and New England with her liturgical dance group. The court rejected the claim that this limitation violates Johnson's free exercise of religion.

Suit Claims Public School Discriminated Against Student Because of His Muslim Religion

Yesterday's New York Post reports on an "incendiary" lawsuit filed in federal district court in Brooklyn claiming that a Brooklyn public school refused to promote 5th grader Abedin Kajoshaj to the 6th grade because of his Muslim religion.  The boy claims he had the grades to move on in PS 180, the SEEALL Academy in Borough Park, but he was ordered to repeat 5th grade. He says this is part of a pattern of discrimination against him based on his religious faith. The suit seeks damages of at least $600,000.

Nondisclosure of Factional Fighting Leads Court To Vacate Approval of Satmar Property Transfer

In Matter of Congregation Yetev Lev D'Satmar Inc. v Congregation Machneh Rav Tov, (NY Sup Ct Ulster Co., Sept. 27, 2011), a New York trial court vacated an order it had entered last December approving transfer of 8 parcels of property by a Satmar (Hasidic Jewish) religious organization. New York's Religious Corporation Law requires court approval for such real estate transfers.  However, in applying for the court order, those purporting to represent the selling congregation failed to inform the court or the state Attorney General's office of a long-running battle among two factions over which has authority to control the Satmar congregation's board of directors, and thus which faction had authority to initially authorize the property transfer. The court said: "The initial application by the petitioner is the quintessence of non-disclosure, bordering on a fraudulent application before this Court." (See prior related posting.) [Thanks to Steven H. Sholk for the lead.]

Israel's High Court Again Orders End To Sex Segregated Streets For Sukkot Celebration

Haaretz and the Jerusalem Post report on an order issued Sunday by Israel's High Court of Justice in a clash between women's rights organizations and residents of the extremely traditional Jerusalem neighborhood of Mea Shearim.  A little known tradition of the Jewish holiday of Sukkot is the Simchat Beit Hashoeivah (Water Drawing Ceremony), a celebration recalling the the water libation ceremony festivities that took place in the ancient Temple in Jerusalem when it was standing.  In Temple times, women were separated from men to watch this celebration. (Background.) In recent years, residents of Mea Shearim, copying the Temple practice, have erected canvass partitions on neighborhood streets, using private security personnel to make sure that women use separate streets during the celebration period. Last year, two women who are members of Jerusalem's city council obtained an order from the High Court to end the segregated streets. However this year police nevertheless gave permission for the barriers to be put up again, though limited them to 26 meters in length. The High Court on Sunday did not order the barriers removed immediately, but ruled that this is the last year that police may permit them. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Articles of Interest

From SSRN:

• Abhyuday Bhotika, Status and Role of a Karta – A Critical Study, (October 6, 2011).
• Daniel Kroslak, The Cultural Defense in Germany, (October 9, 2011).
• Abdulla Galadari, Inner Meanings of Islamic Finance: Understanding the Theory Behind All Theories, (5th IIUM International Accounting Conference, Kuala Lumpur, Malaysia, July 12-13, 2011).
• Anne Twomey, Changing the Rules of Succession to the Throne, (Sydney Law School Research Paper No. 11/71, Oct 12, 2011).
• Linda Ross Meyer, Book Review: Apology and Sympathy: On the Importance of ‘Training in Moral Discomfort’, (April 9, 2011).
• Christopher C. Lund, The New Victims of the Old Anti-Catholicism, (Connecticut Law Review, 2012).

From SmartCILP:

• Rachel Goldberg and Brian Blancke, God In the Process: Is There a Place for Religion in Conflict Resolution?, [Abstract], 28 Conflict Resolution Quarterly 377-398 (2011).
• Nathan J. McGrath, Reed v. UAW: An Adverse Ruling on Adverse Action, 23 Regent University Law Review 391-402 (2010-2011).
• David Skeel, Making Sense of the New Financial Deal, 5 Liberty University Law Review 181-199 (2011).
• Juan Marco Vaggione, Sexual Rights and religion: Same-sex Marriage and Lawmakers' Catholic Identity in Argentina, [Abstract], 65 University of Miami Law Review 935-954 (2011).
• Rev. Carlton W Veazey and Marjorie Brahms Signer, Religious Perspectives on the Abortion Decision: The Sacredness of Women's Lives, Morality and Values, and Social Justice, 35 N.Y.U. Review of Law and Social Change 281-302 (2011).
• Symposium: Critical Perspectives on the Criminalization of Islamic Philanthropy in the War on Terror. Articles by Jonathan Benthall, Nina J. Crimm, Sally Howell, Erica Caple James, Ramzi Kassem and Khalid Mustafa Medani. 10 UCLA Journal of Islamic & Near Eastern Law 1-137 (2010-2011).

10 Commandments Suit Begins With Skirmishes Over Allowing "John Doe" Plaintiffs

As previously reported, the ACLU of Virginia last month filed suit in federal district court on behalf of a high school student and the student's parent challenging the posting of a Ten Commandments display in Giles County, Virginia's Narrows High School. Now, in preliminary skirmishing in the case, lawyers representing the school board have filed an objection to plaintiffs in the lawsuit being identified only as Doe 1 and Doe 2.  The Roanoke Times reported last week that the school board contends it needs to know the identity of plaintiff so it can determine whether the student in fact attends Narrows High School and whether he or she regularly passes by the Ten Commandments display. Plaintiffs' lawyers say that the pseudonyms are necessary to prevent harassment of the plaintiffs.

Kazakh President Signs Restrictive New Religion Law

Forum 18 reported last week that Kazakhstan's President Nursultan Nazarbaev has signed two new laws on freedom of religion or belief. According to Forum 18:

The Law on Religious Activity and Religious Associations" among other restrictions imposes a complex tiered registration system, bans unregistered religious activity, imposes compulsory religious censorship and requires both central and local government approval to build or open new places of worship. All religious communities will be required to re-register or face liquidation through the courts....

(See prior related posting.)

Church Sues New Jersy City Over Zoning Delay

According to North Jersey's The Record, last week the Harlem-based Israelite Church of God in Jesus Christ filed a civil rights lawsuit against Hackensack, New Jersey and 5 city officials over a lengthy delay in approving the church's use of a former school as a school for its clergy.  The complaint in the federal lawsuit claims that the zoning delays were due to antagonistic views of city officials toward the church's teachings and ethnic discrimination against the church's largely Latin American, African American and Native American membership.

Recent Prisoner Free Exercise Cases

In Kyles v. Mathy, 2011 U.S. Dist. LEXIS 115551 (CD IL, Oct. 6, 2011), an Illinois federal district court rejected an inmate's claim that his rights were violated when there was a 39 day delay in his beginning to receive his religious vegan diet.

In Guy v. Mims, 2011 U.S. Dist. LEXIS 115771 (ED CA, Oct. 6, 2011), a California federal magistrate judge dismissed with leave to amend an inmate's complaints regarding denial of a kosher diet and surrendering his yarmulke.

In Jupiter v. Johnson, 2011 U.S. Dist. LEXIS 110743 (MD PA, Sept. 28, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 115406, April 26, 2011) and dismissed for failure to exhaust administrative remedies plaintiff's complaint that he was denied a halal vegetarian diet consistent with his Nation of Islam beliefs.

In Johnson v. Hafiz, 2011 U.S. Dist. LEXIS 115945 (D MD, Oct. 7, 2011), a Maryland federal district court dismissed a complaint by an incarcerated psychiatric patient that his property, including his prayer book, were temporarily taken from him when he was placed in seclusion.

In Ashley v. Oliver, 2011 U.S. Dist. LEXIS 115852 (ED TX, Oct. 6, 2011), a Texas federal magistrate judge   dismissed a claim by a Native American prisoner seeking to participate in Native American religious ceremonies, such as the Indian war dance and buffalo dance. The court, among other things, relied on mootness and qualified immunity as the basis for its decision.

In Lolley v. Louisiana Correctional Services, 2011 U.S. Dist. LEXIS 112023 (SD AL, Sept. 29, 2011), an Alabama federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116283, Sept. 9, 2011) and dismissed all but one claim brought by a Native American inmate of a prison housing hiim under contract with the state. His claims regarding desecration of religious items, deprivation of herbs, lack of sweat lodge, and worship services were dismissed. He was permitted to move ahead with his claim regarding lack of ceremonial grounds.

In Bellamy v. Eagleton, 2011 U.S. Dist. LEXIS 112086 (D SC, Sept. 29, 2011), a South Carolina federal district court adopted in part and rejected in part a magistrate's recommendations (2011 U.S. Dist. LEXIS 116210, July 21, 2011) and dismissed a claim for injunctive relief, but not a claim for monetary relief, in a suit in which an inmate claimed he was denied access to Buddhist religious books while in solitary confinement for 6 months.

In Hickman-Bey v. Shabazz, (TX App., Oct. 6, 2011), a Texas appeals court dismissed an inmate's claim against a Muslim prison chaplain and the Texas Department of Criminal Justice. Plaintiff claimed the chaplain wrongfully prevented him from attending Islamic services and programs.

In Kingsley Lajohn Wright v. Medical Mental Prison Reform Group, 2011 U.S. Dist. LEXIS 116469 (CD CA, Oct. 6, 2011), a California federal magistrate judge dismissed, with leave to amend, an inmate's generalized complaint that "he is 'a very religious man,' but 'was denied the right to religion'."

In Rodriguez v. Schwarzenegger, 2011 U.S. Dist. LEXIS 116481 (ED CA, Oct. 4, 2011), a California federal district court permitted an inmate to proceed against certain defendants on his claim that he was prevented from practicing his Native American religion by restrictions on his access to tobacco .

In Bonnell v. Burnett, 2011 U.S. Dist. LEXIS 112323 (ED MI, Sept. 29, 2011), a Michigan federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 116555, Aug. 10, 2011) and denied plaintiff summary judgment on his claim that he should be entitled to a kosher diet. The court concluded that questions of fact remained about the sincerity of plaintiff's religious beliefs.

Suit Against Charter School Over Accommodating Family's Religious Practice Proceeds

In Meadows v. Lesh, (WD NY, Oct. 6, 2011), a parent sued a charter school for religious discrimination alleging that the school principal undercut the request by the mother of a school child that the charter school respect their "familial religious practice" of fasting from 7 a.m. to 4 p.m. by excusing the child from the cafeteria during lunch. Apparently the fasting was in observance of Lent. Initially the complaint was dismissed for failure to allege that the charter school was acting under color of state law. (See prior posting.) Now, considering an amended complaint, the New York federal district court allowed the suit to proceed in part, holding that it is unable to conclude as a matter of law that a charter school is not a state actor. The court also found that plaintiff has adequately pleaded the sincerity of her religious beliefs and has adequately set out an equal protection claim. However plaintiff had not alleged an official custom or policy as would be required to hold the governmental entity liable. The court allowed the pro se plaintiff to file a second amended complaint to cure this defect. Finally the court rejected a qualified immunity defense at this point.

9th Circuit Denies En Banc Review of Mt. Soledad Case, Over Dissents

Last January, the 9th Circuit held that the now federally-owned Mt. Soledad Memorial featuring a 43-foot high cross conveys a government message of endorsement of religion that violates the Establishment Clause. (See prior posting.)  On Friday, the 9th Circuit refused to rehear the case and also refused an en banc rehearing. However 5 judges, in an opinion written by Judge Bey, dissented from the denial of an en banc rehearing. In Jewish War Veterans v. City of San Diego, (9th Cir., Oct. 14, 2011), Judge Bey wrote in part:

History is important, in part because things change over time. The Spanish government of the day endorsed the Inquisition until the early years of the 19th Century. Would a reasonable observer therefore consider the edicts of King Ferdinand VII in determining whether today's Socialist government endorses the Inquisition? Of course not. 

The panel concentrated its analysis on the history of the Cross as a religious symbol. Not on how this Cross at Mt. Soledad has been used by this government, but on the cross in general....

The principal defect of the panel's decision is its concentration on facts which occurred between 1913 and 2006. The City of San Diego is no longer the owner of the property. The federal government now owns the property. Thus, the use to which the City of San Diego put the Mt. Soledad Cross from 1954 to 2006, just as the use to which the private group put the Cross from 1913 to 1954, is not relevant as to whether the present use by the government—the precise use which plaintiffs seek to enjoin—constitutes an endorsement of religion.

Article Details Romney's Role As Mormon Church Lay Leader

Today's New York Times carries a lengthy front-page article on presidential candidate Mitt Romney's active role as a lay leader in the Mormon church.  Here is an excerpt:

First as bishop of his own congregation, and later as Boston “stake president,” overseeing a region akin to a Roman Catholic diocese, he operated as clergyman, organization man and defender of the faith, guiding the church through a tumultuous period of rapid growth.

He confronted anti-Mormon sentiment and management challenges, supervising youth programs, the church’s social welfare system, missionary training and outreach to Hispanic, Portuguese and Southeast Asian converts, including Cambodian and Laotian refugees whose teenagers were joining the church in droves.

Later, when his official duties were complete, he contributed handsomely to the construction of the grand — and controversial — Boston Temple, high on a hilltop in Belmont, its steeple topped by a golden angel, just minutes from the Romney home. “Mitt’s Temple,” some local residents called it derisively. 

Some Mormons, like Mr. Clark, found Mr. Romney thoughtful and compassionate; one mother recalled his kindness to her dying son. Others, including a group of Mormon feminists demanding a greater role for women, found him condescending, doctrinaire or just plain bossy.

Sudan Leader Says Country Will Adopt Islamic Constitution

According to Reuters, in a speech last Wednesday Sudanese President Omar al-Bashir told students that Sudan will move ahead with its plans to adopt an Islamic constitution now that South Sudan with its largely non-Muslim population has gained independence.  Bashir said: "Ninety eight percent of the people are Muslims and the new constitution will reflect this. The official religion will be Islam and Islamic law the main source (of the constitution)."  The move carries out promises made last December by Bashir. (See prior posting.)

Egyptian Military Rulers Issue Anti-Discrimination Decree

AP reported yesterday that Egypt's transitional military government has issued a decree prohibiting all forms of discrimination, including religious discrimination. The move comes in the wake of the killing of 26 people in violence between the military and protesters objecting to the burning of a Coptic church. (See prior posting.) Violation of the anti-discrimination ban can lead to up to 3 months in prison and a fine of up to 100,000 Egyptian pounds (approx. $17.000).

Some Scientology Zoning Challenges Survive Motion To Dismiss

Church of Scientology of Georgia, Inc. v. City of Sandy Springs, 2011 U.S. Dist. LEXIS 116945 (ND GA, Sept. 30, 2011), involves "a zoning dispute over the Church of Scientology's desire to convert a 32,053 square foot office building into a roughly 44,000 square foot Church....  The City of Sandy Springs approved the use of the subject property for a church but limited the size of the building to the existing 32,053 square feet based on a lack of sufficient on-site parking." In a lengthy opinion, the court dismissed plaintiff's RLUIPA  discrimination, equal terms and exclusion claims, as well as its equal protection and due process allegations. However the court held that triable issues of fact remain on plaintiff's First Amendment claims and its RLUIPA claim that the city's action posed a substantial burden on its religious exercise.

Suit Dropped Challenging Faith-Based DC Homeless Shelter After Revised Arrangements

In a press release on Thursday, the ACLU and Americans United announced that they are dropping a lawsuit filed in 2008 (see prior posting) challenging a proposed D.C. arrangement with a religiously-sponsored homeless shelter:

The organizations filed the lawsuit ... after D.C. officials proposed giving the Central Union Mission approximately $7 million in cash, as well as a $9 million property called the Gales School, in exchange for property worth about $4 million.... At the time, the Mission required homeless men to attend Christian religious services as a condition of getting food and shelter....

[Under new arrangements] the Mission will lease the Gales School for $1 per year... and will rebuild and maintain the Gales School at its own expense. The lease prohibits the Mission from “requir[ing] any individual seeking [the Mission’s] services to participate in religious services or religious studies as a condition to receiving any service at the Leased Premises,” though the Mission will be allowed to use the Gales School for voluntary religious activities. The ACLU and Americans United will monitor the new developments to make sure the lease arrangement meets constitutional requirements.

School Board Settles Justice Department Suit On Refusal To Accommodate Hajj Trip

The Justice Department announced on Thursday that it has entered into a consent decree with the Berkeley, Illinois Board of Education in a Title VII religious discrimination lawsuit filed on behalf of Safoorah Khan, a Muslim middle school teacher who was denied an unpaid leave that she requested so she could perform the Hajj. (See prior posting.) The suit was the first growing out of a program of enhanced cooperation between the EEOC and Justice Department's Civil Rights Division. Under the consent decree, which must still be approved by the court, the school district will pay $75,000 to Khan for lost back pay, compensatory damages and attorneys’ fees, will develop a religious accommodation policy and will provide mandatory training on religious accommodation various personnel.

Bishop and Diocese Indicted For Delay In Reporting Sexual Offender To Authorities

The New York Times yesterday reported that a Missouri grand jury has indicted both Catholic bishop Robert W. Finn and the Diocese of Kansas City-St. Joseph on misdemeanor charges growing out of their delay in reporting evidence of a suspected sex-offender priest to authorities. Bishop Finn knew last December that a priest, Father Shawn Ratigan, might subject children to sexual abuse, discovering hundreds of pornographic photos of girls on the priest's laptop. However the photos were not turned over to police until May. During that time, Ratigan continued to attend church events at which children were present, and took lewd photos of another young girl.  This is the first time that a criminal indictment has been brought against a diocese and its leader in connection with actions of a priest in the diocese. If convicted, Finn faces a possible fine of $1000 and up to one year in jail, while the diocese faces a possible fine of up to $5000. In a statement on the diocese website, Bishop Finn denied criminal wrongdoing.

Annual Audit of Anti-Semitic Incidents In US Released

Last week, the Anti-Defamation League released its 2010 Audit of Anti-Semitic Incidents, detailing anti-Jewish assaults, harassment and vandalism in the U.S.  The study showed a 2.3% increase over 2009. Of the 1239 incidents reported in 2010, California accounted for 297 of them and New York for 205. Nationwide, over 70% of the incidents involved harassment. Less than 2% involved assaults.

Illinois County Imposes New Zoning Limits On Houses of Worship

According to yesterday's Chicago Tribune, the DuPage County (IL) Board has approved a zoning law amendment that will limit new houses of worship and other places of assembly in residential areas. Under the new rules, residential buildings used as places of assembly must have access on an arterial street and must use public sewer and water service, or else receive a variance from the county. The limitation came after 5 applications for new mosques in residential areas had come to the county board-- three of which have been approved.  Opponents of the change say that single-family homes have been the primary starting point for new religious congregations.

Group Asks IRS To Investigate Alleged Political Endorsement By Church

Americans United announced yesterday that it has sent a letter (full text) to the Internal Revenue Service asking it to investigate the First Baptist Church of Dallas (TX) for violating the tax code's ban on non-profits endorsing political candidates.  The church's pastor, Robert Jeffress, introduced candidate Rick Perry at the Value Voters Summit last week end. (See prior posting.) Jeffress then posted a video of the introduction and of his appearance on MSNBC on the church's website. AU says that Jeffress has not avoided church endorsement of Perry by merely placing a disclaimer on the video clips saying they do not constitute an endorsement by the church.

Israeli Civil Court Awards Large Damages To Wife Whose Husband Spurned Religious Court Order

YNet News reported yesterday on a decision by the Rishon Lezion Family Court in Israel awarding civil damages to a wife whose husband refused to comply with a rabbinical court order to give her a divorce document ("get").  The civil court awarded damages equivalent to $182,850 (US). Judge Esther Stein wrote: "refusal to divorce constitutes a violation of the values protected by the ‘Basic Law: Human Dignity and Freedom,’ which includes: freedom of choice, the right to self-fulfillment, the right to dignity and equal rights." [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

2 Amish Men Fined For Refusing To Use Safety Emblem

In a Kentucky state court yesterday, two more members of the Old Order Schwartzentruber Amish community were convicted of refusing to use state-required orange colored safety emblems on their horse-drawn buggies. They have religious objections to the bright colors and to trusting man-made symbols for their safety. One defendant was ordered to pay fines and costs of $341; the other defendant was ordered to pay $173. Both men indicated they would refuse to pay. Judge Deborah Hawkins Crooks gave them until January 12 to comply, or else face jail. These two men and 6 others served 3 to 5 days in jail last month for refusal to pay similar fines. (See prior posting.)

Moroccan Imams Protest Government Regulation

AP reports that some 50 imams from mosques across Morocco demonstrated in Rabat yesterday, complaining about the tight controls the government imposes on them.  Imams are given government prepared sermons that they must deliver on Fridays, without deviation from the text. The imams want to deliver their own sermons, higher salaries and want to be consulted on religious matters.  Under Morocco's constitution, the king is the final arbiter of all religious matters. This is seen as a protection against Islamic extremism.

Egyptian Court Says Islamist Group's Party Can Field Candidates

Reuters reports that yesterday an Egyptian court overturned a decision of the parties committee and permitted the Islamist group al-Gam'aa al-Islamiyya's Construction and Development Party to run candidates in the upcoming parliamentary elections. The parties committee had rejected Construction and Development because the party wanted to introduce Islamic law and because one of its founders had been convicted of a criminal offense-- involvement in the 1981 assassination of President Anwar Sadat.  While Egyptian law bans parties based on religion, the court said that the Construction and Development Party does not restrict membership on the basis of religion and its founders included Muslims and non-Muslims.

Religious Comments of Sentencing Judge Do Not Justify Habeas Relief

In Deyton v. Keller, 2011 U.S. Dist. LEXIS 110631 (WD NC, Sept. 27, 2011), a North Carolina federal district court in a habeas corpus proceeding rejected claims that a state court judge's religious comments made during a sentencing hearing violated the due process rights of defendants who plead guilt to robbing a church. However the court issued a certificate of appealablity to the 4th Circuit.  In handing down a sentence of 53 to 71 years for each defendant, the state trial judge said in part:

Gentlemen, this is just something that can't be tolerated ... there are times when you have to kind of draw the line and you have to say that there are some things that just can't be tolerated by society. I mean you can't just go in a church armed and tie people or hold them at gunpoint, threaten to kill them and rob the collection plate and rob them while they are there in the worship service and expect that the law is not going to come down just about as strongly as it can on you. There is scripture that says "Vengeance is mine sayeth the Lord" but every now and then I think the judicial system has to contribute what it can.

Islamist Clashes In Tunisia

Reuters reports that in Tunisia yesterday police used teargas to disperse hundreds of Islamist demonstrators.  The demonstrators attacked police with stones, knives and batons as they protested a university's enforcement of a government ruling that bars enrolling women who wear the niqab. Earlier Islamists protested outside Nessma television, objecting to its broadcasting "Persepolis," the story of a woman growing up under strict religious rule in Iran. Demonstrators say the show denigrated Islam. The demonstrations come as the Oct. 23 elections for an assembly to draft a new constitution approach. Secularists are concerned that the Islamist Ennahda party is likely to receive the largest number of votes.

Recent Articles of Interest

From SSRN:

• Allison Anna Tait, Polygamy, Publicity, and Locality: The Place of the Public in Marriage Practice, (Michigan State Law Review, Vol. 2011, p. 171, 2011).
• Richard W. Garnett, Thomas Berg, Kimberlee Colby and Carl Esbeck, Religious Freedom, Church-State Separation, and the Ministerial Exception, (Northwestern University Law Review Colloquy, 2011).
• Bruce MacDougall and Donn Short, Religion-Based Claims for Impinging on Queer Citizenship, (Dalhousie Law Journal, Vol. 32, No. 2, pp. 133-160, Fall 2010).
• John D. Inazu, Stanley Hauerwas and the Law: is There Anything to Say?, (Law and Contemporary Problems, Forthcoming).
• Linda C. McClain and James E. Fleming, Respecting Freedom and Cultivating Virtues in Justifying Constitutional Rights, (Boston University Law Review, Vol. 91, p. 1311, 2011).
• Ruth Sarah Lee, Locking in Wedlock: Reconceptualizing Marriage Under a Property Model, (Faulkner Law Review, Forthcoming).

From SmartCILP:

• Katayoun Alidadi, Opening Doors to Muslim Minorities In the Workplace? From India's Employment Quota to EU and Belgian Anti-Discrimination Legislation, 23 Pace International Law Review 146-214 (2011).
• John Laws, Lord Justice of Appeal, England and Wales. Religion and Law, 62 South Carolina Law Review 471-484 (2011).
• Steph Sterling and Jessica L. Waters, Beyond Religious Refusals: The Case for Protecting Health Care Workers' Provision of Abortion Care, 34 Harvard Journal of Law & Gender 463-502 (2011).
• Karin Carmit Yefet. The Constitution and Female-Initiated Divorce in Pakistan: Western Liberalism in Islamic Garb, 34 Harvard Journal of Law & Gender 553-615 (2011).
• Symposium. Liberalism, Constitutionalism, and Christianity: Perspectives on the Influence of Christianity on Classical Liberal Legal Thought. Introduction by Kevin Lee; articles by John M. Breen, Bruce P. Frohnen, Barry Alan Shain, Michael Scaperlanda, John D. Inazu, C. Scott Pryor, Donald R. McConnell, Anthony V. Baker and Robert F. Cochran, Jr. 33 Campbell Law Review 501-694 (2011).

At Least 23 Killed In Protests Against Burning of Coptic Church In Egypt

CNN  reports that at least 23 people were killed today in Cairo, Egypt in clashes between the army and demonstrators protesting the Sept. 30 burning of a Coptic Christian church in a small village in Aswan. Daily News Egypt last week had more background on the burning of the church that Christians were renovating in the village of Marinab. A group of Muslims claimed that the renovations were illegal, saying that a license was issued only for a service center owned by a Copt. The New York Times says that today's protests turned into a broader call by many of the demonstrators for the resignation of the military’s top officer, Field Marshal Mohamed Hussein Tantawi.

Two Amish Men Under Arrest For Attacks on Other Amish

Fox News reports today that in Steubenville, Ohio, two Amish men remain under arrest on burglary and kidnapping charges, while a third was released because he had been mistaken for his brother.  According to an AP report last week, the men under arrest are part of a dissident Amish group, mostly related, who live in the Ohio town of Bergholz. They are charged with breaking into the homes of other Amish in Carroll, Holmes, Jefferson and Trumbull counties, cutting off their beards or hair-- something which is considered degrading to the victims. Police say the attacks are in retaliation for the ostracizing of bishop Sam Mullet, leader of the Bergholz clan, over allegations of sexual abuse after a disputed 2007 police raid. The two men in custody are Mullet's sons.

Town's Mayor Has Strong Words For Group Seeking Removal of Cross

In a press release issued last week, the Freedom from Religion Foundation said it would have little choice but to sue if the town of Whiteville, Tennessee does not remove a Christian cross which a private group erected 8 years ago atop the town's water tower. Fox News reported Friday that the town council has voted to consult with Alliance Defense Fund about its legal options. Whiteville's mayor, James Bellar, had strong words for FFRF, calling them "terrorists":

A terrorist is more than a guy that flies the planes into the building. It’s anyone who can disrupt your way of living, destroy your lifestyle, cause you anxiety. It’s more than killing people. If they can disrupt your routine in life, that’s what they want to do. They are terrorists as far as I’m concerned.

New Egyptian Election Rules Ban Religious Slogans

Reuters reports that yesterday Egypt's ruling military council announced new election rules for the parliamentary elections which begin on Nov. 28.  Among the provisions in the decree are ones that strengthen the notion that Egypt is a civil state.  The decree provides: "Electoral campaigns based on the use of religious slogans or on racial or gender segregation are banned."  This may require the Islamic Brotherhood's Freedom and Justice Party to refrain from using its slogan "Islam is the solution" in the campaign.

UPDATE: Bikya Masr has more on the new election rules.

Recent Prisoner Free Exercise Cases

In Muhammad v. County of Marin, 2011 Cal. App. Unpub. LEXIS 7475 (Cal. App., Sept. 29, 2011), a California state appeals court dismissed an inmate's claim that his rights under RLUIPA were violated by a probation report that stated he "converted to the Islamic religion" while previously in prison and had manipulated Islamic religious tenets "into supporting his self involved belief system."

In Murphy v. Lockhart, 2011 U.S. Dist. LEXIS 113190 (ED MI, Sept. 30, 2011), a Michigan federal district court adopted in part a magistrate's recommendations (2011 U.S. Dist. LEXIS 115758, Jan. 31, 2011) and rejected an inmate's claim that his free exercise and RLUIPA rights were violated when prison officials refused to deliver a copy of Codex Magica that had been mailed to him because it contains information on how to write letters in code.

In Knight v. Yarborough, 2011 U.S. Dist. LEXIS 113599 (CD CA, Sept. 30, 2011), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 113710, Aug. 22, 2011) and dismissed as moot an inmate's claim that he was prevented from wearing his hair in dreadlocks for religious reasons. The state's grooming policy has since been changed and also plaintiff has been transferred to a different prison.

In Pelzer v. McCall, 2011 U.S. Dist. LEXIS 113870 (D SC, Sept. 30, 2011), a South Carolina federal district court adopted a magistrate's recommendations that among other things rejected an inmate's claim that newsletters provided by the prison chaplain's office violated the Establishment Clause.  UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 117407, June 29, 2011.

In Cooper v. Evans, 2011 U.S. Dist. LEXIS 114891 (SD IL, Oct. 5, 2011), an Illinois federal district court rejected a Buddhist inmate's claim regarding "scarring" of his ovo-lacto food tray by including Jello. However he was permitted to move ahead on several claims involving access to a religious diet and use of the prison chapel.

In Halloum v. Ryan, 2011 U.S. Dist. LEXIS 114713 (D AZ, Oct. 4, 2011), plaintiff claimed his rights were violated by various limitations on his ability to practice his Muslim religion. An Arizona federal district court dismissed a number of claims, but permitted plaintiff to move ahead on claims of denial of a religious shaving waiver, refusal to distribute a copy of the Qur'an and denial of communal prayer.

In Atkins v. Christiansen, 2011 U.S. Dist. LEXIS 110394 (WD MI, Sept. 28, 2011), a Michigan federal district court modified a magistrate's recommendations (2011 U.S. Dist. LEXIS 115040, June 6, 2011) and dismissed an inmate's claims that his free exercise and RLUIPA rights were violated when he was designated as a member of a Security Threat Group because of his membership in the Nation of Islam. Prison officials said the designation came from the inmate's affiliation with a subversive group known as the "Family."

Pastor Says Christians Should Not Vote For Romney Because He Is Not A Christian

Robert Jeffress, senior pastor of the 10,000 member First Baptist Church of Dallas (TX), has created a controversy by suggesting that Christians should not vote for Republican Presidential hopeful Mitt Romney because he is a Mormon.  According to CNN, Jeffress who introduced candidate Rick Perry at the Value Voters Conference in Washington on Saturday later told a CNN correspondent:

I think Mitt Romney's a good, moral man, but I think those of us who are born-again followers of Christ should always prefer a competent Christian to a competent non-Christian like Mitt Romney. So that's why I'm enthusiastic about Rick Perry.

Jeffress also said that the Southern Baptist Convention considers Mormonism a "cult."  But, he said, there are many other reasons also not to vote for Romney.  Rick Perry later told reporters he did not think Mormonism is a cult.

Suit Challenges Austin, Texas Disclosure Requirement For Pregnancy Center

A lawsuit was filed yesterday in federal district court in Texas on behalf of Austin LifeCare, Inc., a Christian pregnancy counseling center seeking to have an Austin (TX) ordinance requiring disclosures by limited-service pregnancy centers declared unconstitutional. The complaint (full text) in Austin LifeCare, Inc. v. City of Austin, (WD TX, filed 10/6/2011), claims that Austin City Code Chap. 10-9 violates LifeCare’s freedom of speech, assembly and association,and  religion, and denies it equal protection of the laws. The Ordinance provides:

The Owner or Operator of a Limited Service Pregnancy Center shall prominently display, at the entrance of the Center, two black and white signs, one in English and one in Spanish, that state as follows: "This center does not provide abortions or refer to abortion providers. This center does not provide or refer to providers of U.S. Food and Drug Administration approved birth control drugs and medical devices."

LifeCare claims, among other contentions, that the ordinance unconstitutionally compels speech and substantially burdens its ability to serve women in accordance with its sincerely-held religious beliefs. Jubilee Campaign issued a press release announcing the filing of the lawsuit and furnishing additional background.

Muslim Student Sues Southwest Airlines For Discrimination In Removing Her From Flight

A Muslim-American graduate student at San Jose State University filed a religious discrimination lawsuit yesterday in California federal district court against Southwest Airlines.  The suit grows out of the airline's removal last March of psychology student Irum Abbasi from a flight bound for San Diego because a flight attendant though she heard Abbasi say "it's a go" on her cell phone.  In fact, Abbasi said "I have to go," because the plane was about to depart. AP reports that Abbasi was searched and cleared for reboarding, but was prevented from doing so when the crew was uncomfortable with that decision. Instead she was given a voucher and boarding pass for the next San Jose flight. The delay caused her to miss a critical research experiment that she needed to complete for her graduate studies. The lawsuit contends that Abbasi was removed under these circumstances only because she was wearing an Islamic head covering.

Christian Proselytizers Lose Most Claims Against Chicago for Location Restrictions

In Marcavage v. City of Chicago, (9th Cir., Oct. 4, 2011), a Christian outreach group, Repent America, sued claiming that their religion, free speech and equal protection rights were violated during the 2006 Gay Games in Chicago when police in three instances ordered the group to change the location of their activities.  The court held that police orders given at two locations were content neutral and narrowly tailored to prevent interference with pedestrian traffic. Two of the 3 judges held that claims as to plaintiff's treatment at Gateway Park, adjacent to Navy Pier, should be remanded for further clarification of the reasons for the city's permit policy there. Courthouse News Service reports on the decision. (See prior related posting.)

Fired Ohio Science Teacher Loses Bid For Additional Hearing

An Ohio common pleas court judge has ruled that fired middle-school science teacher John Freshwater is not entitled to an additional hearing on his dismissal for teaching creationism and promoting Christian religious beliefs in class. According to yesterday's Columbus Dispatch, the judge, after reviewing the 6,344 page long hearing transcript, ruled that Freshwater's request for additional hearings is not well taken. (See prior related posting.)

Settlement Reached On Religious Head Coverings In Georgia Court

The ACLU of Georgia announced yesterday that a settlement has been reached in a lawsuit against the city of Douglasville, Georgia brought last year by a Muslim woman who was told she could not enter a municipal courtroom unless she removed her hijab (religious headscarf). She was held in contempt and temporarily jailed when she got in an argument with security guards. (See prior posting.) Under the settlement, the city has adopted a new screening policy (full text) for those entering the court with a head covering worn for religious or medical reasons. Where security requires removal of the head covering, the individual may do so in a private area in the company of a same-gender security guard. After this screening, the individual may place the head covering back on. For individuals detained, full face arrest photos may be taken with the person wearing his or her head covering.

Former Security Agency Employee Sues Claiming Discrimination Because of Wife's Religious Activities

AP reported yesterday that an employment discrimination lawsuit has been filed in a Virginia federal district court against the National Geospatial-Intelligence Agency by a former employee who alleges that his security clearance was revoked solely because of his wife's Muslim religion, her constitutionally protected speech and her association with a faith-based Islamic organization. Plaintiff Mahmoud Hegab, who worked as a budget analyst, says his top-secret clearance was revoked in November after he got married because officials were concerned about his wife's schooling at the Islamic Saudi Academy in Virginia, her employment with the Islamic charity Relief USA, and her participation in a 2003 anti-war rally sponsored by a group that has worked together at times with Palestinian activists.

Ohio Prison Response To Muslim Food Issue Threatens Suit By Pork Producers

AP reported yesterday that the Ohio prison system finds itself with threatened lawsuits from competing directions as it attempts to respond to demands of Muslim inmates for Halal food. When Muslim inmates sued seeking to have access to non-pork meat products slaughtered according to Islamic law, Ohio responded by merely removing pork from all prison menus.  Now the Ohio Pork Producers Council is threatening to sue to challenge the prisons' removal of pork products.  All of this is a bit puzzling, since Muslim inmates were not seeking removal of pork, but instead access to pre-packaged Halal meals, similar to meals served in the kosher meal program. And the $27,000 per week of pork rib patties served in the prisons are furnished by a Michigan company so that removal of this does not affect Ohio producers.

Equal Access For Bible Club Does Not Require School-Furnished Paid Adviser

In Youth Alive v. Hauppauge School District, 2011 U.S. Dist. LEXIS 113628 (ED NY, Sept. 30, 2011), an extracurricular student Bible club at a New York high school complained that its rights were being violated when the school insisted on its having a volunteer monitor instead of a paid staffer that is furnished to other groups to supervise its meetings.  The group contended that an unpaid adviser will cancel meetings at a greater rate than would a paid staff person.  A New York federal district court held that the federal Equal Access Act does not require the school district to provide a paid adviser.  The court also held that the refusal to provide a paid adviser does not substantially burden the group's free exercise of religion or infringe its free speech rights.  However it found that the parties' briefing leaves open a question of fact as to plaintiff's equal protection claim, as well as the claim for nominal damages from the group's treatment during its initial formation.

Muslim Scholars Criticize Female Shariah Magistrates In Kenya

On Islam reported yesterday that in Kenya, Muslim scholars are critical of a decision by Kenyan Chief Justice Willy Mutunga to create the position of female magistrate in the nation's Islamic courts.  There are 17 Kadhis courts in Kenya which deal with matters of personal status such as marriage, divorce and inheritance. Under Kenya's 2010 constitution, Kadhis courts are part of the government court system, subordinate to superior courts. Egypt, Tunisia, Sudan, and Turkey all have female Shariah court magistrates. (See prior related posting.)

Supreme Court Hears Oral Arguments In Hosanna-Tabor Case

The U.S. Supreme Court today heard oral arguments (full transcript) in Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC. In the case, the 6th Circuit refused to apply the "ministerial exception" to a retaliation claim under the Americans With Disabilities Act brought by a parochial school teacher. Answering a question from Justice Ginsburg, Douglas Laycock, representing the school, argued for broad coverage of the ministerial exception doctrine, saying:

If she's commissioned as a minister and if that is not a sham, then we think that makes her a minister. If you have a Jesuit teaching physics, we think he is still a priest and he is still controlled by the ministerial exception....

JUSTICE GINSBURG: ... did I understand you before, in response to Justice Sotomayor and Justice Scalia, that even if she were merely a contract teacher, the fact that she teaches religion classes would be enough for her to qualify for the ministerial exception? 

 MR. LAYCOCK: Yes. And the fact that she's a commissioned minister is the clincher in this case.

Justice Scalia then probed the meaning of "commissioned minister:

JUSTICE SCALIA: And that term is a legal term. What constitutes a minister is -- is decided by the law, not by the church, right?

MR. LAYCOCK: That is correct.

The government, represented by Assistant to the Solicitor General Leondra Kruger urged the Court to take an approach that does not focus on the traditional "ministerial exception" tests:

MS. KRUGER: The contours -- the inquiry that the Court has set out as to expressive associations we think translate quite well to analyzing the claim that Petitioner has made here. And for this reason, we don't think that the job duties of a particular religious employee in an organization are relevant to the inquiry.

... the government's interest in this case is not in dictating to the church-operated school who it may choose to teach religion classes and who it may not. It is one thing and one thing only, which is to tell the school that it may not punish its employees for threatening to report civil wrongs to civil authorities. That is an interest that we think overrides the burden on the association's religious message about the virtues of internal dispute resolution as opposed to court resolution.

The merits and amicus briefs in the case are available online. ScotusBlog has a summary of the arguments.The Los Angeles Times also reports on the oral arguments.

USCIRF Reauthorization Bill Still Pending [CORRECTED]

The U.S. Commission on International Religious Freedom was scheduled to go out of business last week.  22 USC Sec. 6436 originally provided that USCIRF "shall terminate on September 30, 2011." A reauthorization bill, HR 2867, passed the House on Sept. 15 and is now pending in the Senate. The reauthorization bill would reduce the number of Commission members from 9 to 5. However USCIRF was saved by provisions in two separate Continuing Appropriations Acts (HR2017 and HR2608). Both extended the life of USCIRF. HR 2017, signed by the President on Sept. 30, extended the Commission's life to Oct. 4.  HR2608, signed by the President on Oct. 5 extended USCIRF to Nov. 18. So USCIRF remains in business for now. An opinion piece in yesterday's Huffington Post by Suhag Shukla, Managing Director of the Hindu American Foundation, suggests that greater reform of USCIRF is needed.  She argues that the Commission's history causes it to focus disproportionately on persecution of Christian minorities. [Thanks to Don Byrd for the lead.]

School's Exclusion of Good News Club From Enrichment Program Upheld

In Child Evangelism Fellowship of Minnesota v. Minneapolis Special School District No. 1, 2011 U.S. Dist. LEXIS 113380 (D MN, Sept. 30, 2011), a Minnesota federal district court refused to issue a preliminary injunction to require school officials to include the Good News Club in the school district's formal After-School Youth Enrichment Program that includes school publicity, busing and snacks for participants. Instead GNC was allowed to use school space as a Community Partner, but was denied other benefits furnished to groups in the program. The court said:

CEF has cited no cases in which a court found proselytizing and prayer proper content for school-sponsored speech. Here, the District has at most engaged in content discrimination, in keeping religious prayer and proselytizing from the limited designated public forum of the After-School Program, while at the same time providing after-school facilities to CEF as a community partner....

Although it is a close question, on balance the Court finds it likely that the organizations participating in the After-School Program engage in school-sponsored public speech. Such organizations are selected by the District for additional benefits separate from those of the larger group of CPs, the forms, flyers, and other information communicated to parents bear the logos and information of District employees, and the Site Coordinators exercise some control over the content of the After-School Program. Further, an objective observer, including the parents of After-School Program attendees, could reasonably believe that a religious program held on school grounds, for which they gave permission on a sheet including other school-sponsored activities, and which involves travel on a school bus, has the imprimatur and support of the school itself.

Canada Considers Creating Office of Religious Freedom In Foreign Affairs Ministry

Catholic Register reported that on Monday Canada's Foreign Affairs Minister John Baird, with 100 religious leaders present, opened formal consultations on creation by Canada of an Office of Religious Freedom. In his remarks (full text) Baird said in part:

This office will be created to promote and protect freedom of religion and belief, consistent with core Canadian values such as freedom, democracy, human rights and the rule of law. Most importantly, it will demonstrate that Canada truly is a free society.

CBC News has additional background.

Indian Court Says Temple Board Must Be Open To Lower Castes

In Thrissur, the cultural capital of the Indian state of Kerala, a court has ruled that membership in the governing board of the Thiruvambady temple cannot be limited to upper caste Hindus, but must be open to all castes.  The Pioneer reported today that the bylaws of the Thiruvambady Devaswom Board currently allow 1300 board members, limited to upper class Hindus from three specified areas.

Recent Prisoner Free Exercise Cases

In Deville v. Crowell, 2011 U.S. Dist. LEXIS 111107 (D KA, Sept. 28, 2011), a Kansas federal district court rejected claims by a federal inmate seeking group religious services reflecting his Creativity Prison Ministries (White Nationalist) beliefs, as well as his complaint that he was not receiving the Common Fare diet.

In Yassin v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 110393 (SD CA, Sept. 27, 2011), a California federal district court permitted a Muslim inmate to move ahead with his claim that refusal to provide him a halal diet violated his free exercise, equal protection and RFRA rights.

In Dean v. Hazewood, 2011 U.S. Dist. LEXIS 110890 (ED CA, Sept. 27, 2011), a California federal magistrate judge permitted a Muslim inmate to move forward with his claim that his free exercise and privacy rights were violated when he was subjected to an unclothed body search in front of a female correctional officer.

In Hopson v. TDCJ-CID, 2011 U.S. Dist. LEXIS 111387 (ED TX, Sept. 29, 2011), a Texas federal district court dismissed as moot an inmate's complaint that Native American prisoners are not permitted to gather for group worship, because now a contract chaplain has been hired. The court held that plaintiff had failed to exhaust his administrative remedies in connection with complaints about the lack of pipe ceremonies and oral teachings, smudging, access to non-desecrated religious prayer paraphernalia and honoring of Native American memorial days. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116466, Aug. 12, 2011.

In McKinley v. Maddox, 2011 U.S. Dist. LEXIS 111307 (WD OK, Sept. 28, 2011), an Oklahoma federal district court held that an inmate's free exercise rights were not substantially burdened by a temporary delay in approving his attending off-site church services. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 116292, Aug. 8, 2011.

In Schuh v. Michigan Department of Corrections, 2011 U.S. Dist. LEXIS 112540 (WD MI, Sept. 30, 2011), a Michigan federal district court rejected a defendant's complaint that his rights were violated when he was denied kosher meals until he showed that he had a sufficient and sincere understanding of the Jewish faith. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 115692, Feb. 11, 2011.

In McChesney v. Hogan, 2011 U.S. Dist. LEXIS 112525 (ND NY, Sept. 30, 2011), a New York federal district court permitted a civilly committed inmate who is an atheist to move ahead with his claims that his required sex offender treatment program is based in part on religious tenets in violation of the Establishment Clause and of his free exercise rights.

In Moore v. Cucchi, 2011 U.S. Dist. LEXIS 112582 (D NJ, Sept. 29, 2011), a New Jersey federal district court rejected a Buddhist inmate's free exercise and RLUIPA claims regarding problems with his vegetarian diet.

Court Approves Minnesota Department of Education Settlement In TiZA Suit

The ACLU of Minnesota announced Monday that a Minnesota federal district court has approved a Settlement Agreement (full text) with the Minnesota Department of Education in ACLU v. Tarek ibn Ziyad Academy. The lawsuit claims that TiZA, a publicly-funded Minnesota charter school violated the Establishment Clause by promoting Islam. (See prior posting.) Under the settlement, the court approved release of a 29-page Stipulation of Facts (full text) compiled by the ACLU, the Department of Education, and Islamic Relief USA (the charter school's former sponsor). The stipulation illustrates various incidents in which public funds or the school's operations appear to have furthered Islam or Muslim religious organizations.  Under the Settlement Agreement, the Department of Education also agreed that in the future it will require every charter schools to provide annual written assurances (full text of required assurances) that it is operating in a non-sectarian manner and provides equal treatment and equal access for all religions. (See prior related posting.)

EEOC Sues Over Firing of Jehovah's Witness Employee Who Would Not Raise Flags

Pacific News Center reports today that the U.S. Equal Employment Opportunity Commission has filed an employment discrimination lawsuit against Aviation Concepts, an aircraft retailer and service provider in Guam. The suit charges that the company refused to accommodate the religious beliefs of a Jehovah's Witness employee.  The employee, a mechanic, was fired after he refused an order from his manager to raise the U.S. and Guam flags at the work site. Raising the flags would violate the employee's religious beliefs. The company denied the charges.

Muslim Woman Sentenced For Contempt After Refusing To Rise In Courtroom

A 35-year old Muslim woman on trial in Minneapolis on charges of funneling money to a Somali terrorist group has been held in contempt of court for refusing on religious grounds to rise when the judge and jury entered the courtroom. AP reported  yesterday that defendant Amina Farah Ali was sentenced to 50 days in jail on the contempt charges, subject to purging of the charges if Ali changes her mind after conferring with Muslim religious authorities. Ali says she will not stand up for anyone except Allah.

UPDATE: Here is the full text of the judge's opinion in United States v. Ali, (D MN, Oct. 3, 2011), finding Ali in contempt. Volokh Conspiracy had additional analysis of the case.

California Bars Localities From Regulating Circumcision

As reported by yesterday's Christian Post, California Governor Jerry Brown last week signed
assembly Bill 768 (full text) which prohibits any city or county government in California from prohibiting or restricting male circumcision or a parent's authority to have a child circumcised. The legislation is a reaction to attempts earlier this year in San Francisco and Santa Monica to obtain voter approval for circumcision bans, including religious circumcision. (See prior related posting.)