Recent Articles of Interest

From SSRN:

• Nicolai N. Petro, Russia’s Modernization: The Role of the Russian Orthodox Church, (November 4, 2011).
• Carmen Garcimartin, Education in the Secular State: Whose Right Is It?, (International Journal of the Jurisprudence of the Family, Vol. 2, 2011).
• Robert A. Kahn, The Acquittal of Geert Wilders and Dutch Political Culture, (University of St. Thomas Legal Studies Research Paper No. 11-31, 2011).
• Michael Hoffman, Religion, Conflict, and Regimes: A Two-Branch Model of Non-Democracy, (April 1, 2010).
• Danielle C. Jefferis, Institutionalizing Statelessness: The Revocation of Residency Rights of Palestinians of East Jerusalem, (International Journal of Refugee Law, Forthcoming).
• Salim Darmadi, Corporate Governance Disclosure in the Annual Report: An Exploratory Study on Indonesian Islamic Banks, (November 8, 2011).
• Gregory P. Magarian, Justice Stevens, Religion, and Civil Society, (Wisconsin Law Review, Vol. 73, 2011).
• Haider Ala Hamoudi, The Surprising Irrelevance of Islamic Bankruptcy, (American Bankruptcy Institute Law Review, Forthcoming).
• Joel A. Nichols (ed.), Marriage and Divorce in a Multicultural Context: Table of Contents and Introduction, (Cambridge University Press, 2012).
• Robert K. Vischer, How Do Lawyers Serve Human Dignity?, (University of St. Thomas Law Journal, 2012).
• Elizabeth Rose Schiltz, Exposing the Cracks in the Foundations of Disability Law, (Law and Contemporary Problems, Vol. 75, 2012).
• Richard Albert, The Separation of Higher Powers, (Southern Methodist University Law Review, Vol. 65, No. 1, 2012).

From SmartCILP:

• David E. Gilbert, Lessons from Theodicy: The Problem of Evil and the Limits of Governmental Power, [Abstract], 5 Liberty University Law Review 379-417 (2011).

NYT Op-Ed Explores Mormonism and Presidential Bids

Yale professor Harold Bloom writes a rather contentious op-ed in today's New York Times titled Will This Election Be the Mormon Breakthrough?  Here are a few excerpts from it:

[S]hould Mr. Romney be elected president, [Joseph] Smith’s dream of a Mormon Kingdom of God in America would not be fulfilled, since the 21st-century Church of Jesus Christ of Latter-day Saints has little resemblance to its 19th-century precursor. The current head of the Mormon Church, Thomas S. Monson, known to his followers as “prophet, seer and revelator,” is indistinguishable from the secular plutocratic oligarchs who exercise power in our supposed democracy....

I recall prophesying in 1992 that by 2020 Mormonism could become the dominant religion of the western United States. But we are not going to see that large a transformation. I went wrong because the last two decades have witnessed the deliberate dwindling of the Church of Jesus Christ of Latter-day Saints into just one more Protestant sect. Without the changes, Mitt Romney and Jon M. Huntsman Jr., a fellow Mormon, would not seem plausible candidates.

Lawsuit Alleges Bullying of Jewish School Girl

Yesterday's Akron Beacon Journal reports on a federal lawsuit that was filed recently by the family of a 14-year old Green, Ohio girl alleging years of bullying which school officials and employees did nothing to stop.  Most of the bullying was verbal and much of it was directed at the girl's Jewish religious beliefs. However there were also incidents of physical attacks, as well as a Facebook page devoted to disparaging comments about the girl. The girl is now enrolled in a different school, and the case has been turned over to the school district's insurance company.

Recent Prisoner Free Exercise Cases

In Williams v. Secretary Pennsylvania Department of Corrections, (3rd Cir., Nov. 3, 2011), the 3rd Circuit reversed a trial court's summary judgment against a Muslim inmate on his RLUIPA claim, holding that the district court should consider whether a prayer room should be provided for Muslim inmates working in the Food Services Department.

In Wallace v. Johnson, 2011 U.S. Dist. LEXIS 128382 (SD IL, Nov. 4, 2011), an Illinois federal district court permitted an inmate to move ahead with his claim that he was deprived of needed medical treatment and of adequate clothing and linens in retaliation for his Satmar Hasidic Jewish religious beliefs.

In State v. Velez, 2011 Wisc. App. LEXIS 830 (WI App., Sept. 27, 2011), a Wisconsin state appeals court rejected an inmate's claim that his free exercise rights were violated by a refusal to amend a 15-year old judgment of conviction to include a religious name which he had adopted through a common law name change.

In Jones v. Lorady, 2011 U.S. Dist. LEXIS 128957 (MD PA, Nov. 8, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations and permitted an inmate to move ahead against certain defendants with his claim that his sincere religious beliefs prohibited shaving of his beard. However official capacity monetary damage claims were dismissed.

In Clark v. Martel, 2011 U.S. Dist. LEXIS 129232 (ND CA, Nov. 8, 2011), a California federal district court dismissed with leave to amend an inmate's complaint about improper use of chaplains.

In Via v. Wilhelm, 2011 U.S. Dist. LEXIS 129646 (WD VA, Nov. 9, 2011), a Virginia federal district court rejected a Muslim inmate's claims that his free exercise, equal protection and RLUPA rights were violated when authorities substituted soy protein for halal meat in the Common Fare diet made available to him.

In Cortinas v. Lockwood, 2011 U.S. Dist. LEXIS 130498 (ED CA, Nov. 8, 2011), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed against one defendant on a religious discrimination claim based on withholding of his medicine.  However the court recommended dismissing claims against other defendants alleging verbal abuse and seeking access to the kosher diet alternative.

Settlement Allows Posters On Separation of Church-State In Courthouse

Yesterday Americans United announced that it had obtained a settlement in Stewart v. Johnson County, Tennessee. AP also reports on the settlement. The suit was filed after the county-- in response to a complaint about a display of the Ten Commandments in the lobby of the county courthouse-- adopted a limited public forum policy. It permits local residents and organizations to donate to the courthouse displays of historical documents that, among other things, "directly relate to the development of law...." Under the policy, the county accepted a display that features the Ten Commandments and other historical documents along with a 26-page pamphlet that includes an introduction titled "From Biblical Morality to Modern Law."  Ralph Stewart then asked to display two posters titled "On the Legal Heritage of the Separation of Church and State" and "The Ten Commandments Are Not the Foundation of American Law."  He sued when the county refused on the ground that his posters did not fall within the subject matter of the limited public forum it had created. (See prior posting.) Under the settlement, the county has agreed to display Stewart's posters in a prominent place, and modify its policy to make it clear that county commissioners may not reject a display merely because they dislike its content. The settlement also includes payment of $75,000 in legal fees. [Thanks to Don Byrd for the lead.]

North Carolina Supreme Court Upholds Campus Police Power On Religiously Affiliated Campus

In State v. Yencer, (NC Sup. Ct., Nov. 10, 2011), the North Carolina Supreme Court upheld North Carolina's Campus Police Act against an Establishment Clause challenge. At issue was the power of the campus police at Davidson College, a Presbyterian Church-affiliated liberal arts college. The state court of appeals, relying on earlier state Supreme Court precedent, had held it unconstitutional for the state to delegate police powers to a religious institution. (See prior posting.) However the Supreme Court disagreed, concluding that the earlier cases  relied upon by the court of appeals pre-dated the enactment of the Campus Police Act which added provisions to ensure neutral, uniform enforcement of the law by campus police.  The Supreme Court held:

this is not a case in which a statute delegates unbridled discretionary governmental powers to a religious organization. The delegation of limited power to campus police officers here “does not result in an 'excessive' entanglement that advances or inhibits religion.

The Burlington Times-News reports on the decision.

Religious College Sues To Challenge New Federal Regs On Insurance Coverage For Women

A Benedictine Catholic liberal arts college located in North Carolina filed suit yesterday challenging on 1st Amendment, RFRA and other grounds federal regulations issued in August that require all group health insurance plans to cover FDA-approved contraceptive methods, sterilization procedures, and counseling for women with reproductive capacity. While certain religious employers are exempt from the requirements, that exemption is too narrow to cover many religiously sponsored colleges. (See prior posting.) The complaint (full text) in Belmont Abbey College v. Sebelius, (D DC, filed 11/10/2011), alleges in part:

Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion..... The government’s Mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Belmont Abbey College to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American,unprecedented, and flagrantly unconstitutional.

Becket Fund issued a press release announcing the filing of the lawsuit.

31 Convicted In India of 2002 Murders In Religious Riots

In India on Wednesday, according to AFP, a court handed down verdicts in the trial of 73 Hindus accused of killing Muslims in religious rioting in the state of Gujarat in 2002.  The rioting followed a train fire that killed Hindu pilgrims.  31 of the defendants were found guilty of murder and arson in the killing of 33 Muslims who had sought shelter in a small house that was set on fire. 42 of the defendants were acquitted for lack of evidence. The Gujarat government has been accused of tacitly supporting the Hindu rioters.

Court Refuses To Order Town To Allow Eruv

In East End Eruv Association, Inc. v. Village of Westhampton Beach, (ED NY, Nov. 3, 2011), a New York federal district court refused to issue a preliminary injunction to prevent the Town of Southampton (NY) from interfering with a Jewish group's constructing an eruv (symbolic boundary) by attaching plastic strips to utility poles. Utility companies that owned the poles had negotiated arrangements to permit the eruv, if required permits were obtained. The court held that the case was not ripe because plaintiffs had not applied to the town for a permit or variance. Doing so would allow the town to decide whether or not its sign ordinance applied to the eruv.  The court went on to hold that even if the case was ripe, plaintiffs had not shown a likelihood of success on the merits of their free exercise claims under the 1st Amendment or RLUIPA. The sign ordinance is a neutral law of general applicability, and the record does not show selective enforcement. No RLUIPA claim lies because plaintiffs have shown no property interest in any land involved. Since no relief was available against Southampton, so the eruv could not now be built, the court denied without prejudice motions for preliminary injunctions against two other towns through which the eruv would run. Westhampton- Hampton Bays Patch and 27 East report on the decision. (See prior related posting.)

Texas City's Food Ordinance May Infringe Group's Religious Liberty

In Big Hart Ministries Association, Inc. v. City of Dallas, (ND TX, Nov. 4, 2011), religious groups that drive around the city of Dallas looking for homeless individuals with whom to share food challenged the city's Food Establishments Ordinance. They contend that by requiring a pre-approved location for groups that feed the homeless, the Ordinance restricts their ability to practice their religious beliefs that call for spontaneous sharing of food and for seeking out the hungry in hard to reach locations. The court concluded that plaintiffs had alleged enough that a reasonable jury might find a substantial burden on plaintiffs' free exercise of religion in violations of the Texas Religious Freedom Restoration Act. The court therefore denied the city's motion for summary judgment.

Maryland Catholic Leaders Issue Statement On Religious Liberty

Catholic Review reported yesterday on a lengthy statement on free exercise of religion signed by Archbishop Donald Cardinal Wuerl, Archbishop Edwin O'Brien and Bishop W. Francis Malooly-- the heads of the dioceses that encompass the state of Maryland. (Full text of statement.) The document reviews the history of free exercise, and the threats to religious liberty that are of concern to the Catholic Church.

Polish Political Party Wants Cross Removed From Parliament

BBC News yesterday reported that in Poland, the Palikot Movement-- the third largest party in parliament-- has filed a formal request with the speaker of the parliament to remove the cross that hangs in the Sejm, the lower house of parliament.  In making the controversial request, the party urged: "The Republic of Poland is a secular state whose authorities ... should remain impartial on religion and philosophical matters." Palikot has been highly critical of the Catholic Church's involvement in Poland's government. (See prior related posting.)

Christmas Tree Promotion Order Withdrawn After It Is Panned As A Tax On Christmas Trees

The Washington Post yesterday reviewed details of the one of the first salvos in this year's "Christmas wars." At the urging of an industry group representing producers and importers of fresh cut Christmas trees, the Department of Agriculture published in the Federal Register this week an order under the Commodity Promotion, Research, and Information Act of 1996 establishing a national Christmas Tree Promotion Board.  Rules promulgated by the order assess a fee of fifteen cents per Christmas tree on producers and importers, with the proceeds being used by the Christmas Tree Promotion Board to urge consumers to buy fresh cut, rather than artificial, trees. The order quickly began being characterized on conservative Internet sites as an Obama administration tax on Christmas trees. (See The Foundry.) Ilya Shapiro writing at Cato@Liberty opined: "there are obvious Free Exercise and Equal Protection issues here. That is, unless we consider Christmas trees to be wholly secular, this is an obvious burden on the free exercise of Christianity, and one that no other religion faces." By late yesterday, Fox News reported that a White House spokesman said that the program is being withdrawn.

USCIRF Issues Study On Education and Religious Discrimination In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a 139-page study (full text) titled Connecting the Dots: Education and Religious Discrimination in Pakistan-- A Study of Public Schools and Madrassas. As summarized by USCIRF release on the report, the study found:

• Public school textbooks used by all children often had a strong Islamic orientation, and Pakistan’s religious minorities were referenced derogatorily or omitted altogether;
• Hindus were depicted in especially negative terms, and references to Christians were often inaccurate and offensive;
• Public school and madrassa teachers had limited awareness or understanding of religious minorities and their beliefs, and were divided on whether religious minorities were citizens;
• Teachers often expressed very negative views about Ahmadis, Christians, and Jews, and successfully transmitted these biases to their students;
• Interviewees’ expressions of tolerance often were intermixed with neutral and intolerant comments, leaving some room for improvement.

Dresser Rand Settles Religious Accommodation Suit By EEOC

The EEOC announced Tuesday a settlement in a religious discrimination suit that had been filed in federal court in New York against equipment manufacturer Dresser Rand. Harry Davis, a Jehovah's Witness employed by the company, refused for religious reasons to work on weapons of war-- specifically he refused to work on a part for a submarine. The company refused his request that he be transferred to work on a different piece of equipment, and then fired him. Under the consent decree, which still requires court approval, Dresser Rand agreed to pay Davis $110,000. It has also changed its EEO policy, will conduct anti-discrimination training and post notices regarding anti-discrimination laws.

British Court Holds That Bishop May Be Vicariously Liable For Sex Abuse By Priest

Yesterday's Irish Examiner reports that a judge in Britain's High Court of Justice has ruled that the nature of the relationship between a priest and the Catholic Church is one that can give rise to vicarious liability of the diocesan bishop for sexual abuse committed by the priest.  In JGE v. English Province of Our Lady of Charity, (High Ct. QB Div, Nov. 8, 2011), Mr. Justice MacDuff wrote:

I am satisfied, as I have already noted, that the relationship between Father Baldwin and the Defendants was significantly different from a contract of employment; no real element of control or supervision, no wages, no formal contract and so on. But are those differences such that the Defendants should not be made responsible for the tortious acts of the priest acting within the course of his ministry? There are, it seems to me, crucial features which should be recognised. Father Baldwin was appointed by and on behalf of the Defendants. He was so appointed in order to do their work; to undertake the ministry on behalf of the Defendants for the benefit of the church. He was given the full authority of the Defendants to fulfil that role. He was provided with the premises, the pulpit and the clerical robes. He was directed into the community with that full authority and was given free rein to act as representative of the church. He had been trained and ordained for that purpose. He had immense power handed to him by the Defendants. It was they who appointed him to the position of trust which (if the allegations be proved) he so abused....

In this case, the empowerment and the granting of authority to Father Baldwin to pursue the activity on behalf of the enterprise are the major factors. In my judgment, whether or not the relationship may be regarded as “akin to employment” the principal features of the relationship dictate that the Defendants should be held responsible for the actions which they initiated by the appointment and all that went with it.

However defendant was granted leave to appeal.

Arkansas Will Beef Up Inspection of State-Subsidized Pre-Schools On Church-State Issues

Following up on a complaint last week by Americans United, the Arkansas Department of Human Services says it will change its inspection checklist for pre-kindergarten schools funded under the Arkansas Better Chance (ABC) program to assure compliance with church-state restrictions.  The Arkansas News reported Monday that an inspector who visited the Growing God's Kingdom pre-school in West Fork, Arkansas found religious pictures and posters, and a schedule that includes Bible study and Bible song sessions. The school received $534,000 in ABC funds this year, and over $1 million since 2005. Meanwhile, according to a report by the Fort Smith Times Record, two state legislators who own state-funded pre-schools that include religion in the curriculum contend that teaching religion is permissible so long as it is done outside the 7.5 hours of instruction funded by the ABC program. [Thanks to Don Byrd for the lead.]

Texas Allows Gun Safety Instructor To Continue After Non-Discrimination Pledge

The Syracuse Post-Standard reported yesterday that the Texas Department of Public Safety will not revoke the certification of gun instructor Crockett Keller as a qualified hand gun instructor now that Keller has agreed not to discriminate in the future. Keller offers certified courses for individuals applying for a license to carry a concealed handgun.  Keller became the center of controversy after he included as part of a radio commercial for his gun safety class a disclaimer that said:

If you are a socialist liberal and/or voted for the current campaigner-in-chief, please do not take this class. You’ve already proven that you cannot make a knowledgeable and prudent decision as required under the law. Also, if you are a non-Christian Arab or Muslim, I will not teach you the class. Once again, with no shame, I am Crockett Keller.

Mississippi Personhood Amendment Defeated

Mississippi's proposed Personhood Amendment failed at the polls yesterday. According to the Jackson Clarion-Ledger, with 96% of the polls reporting, 58% voted against and 42% voted in favor of the proposal.  CBS News says that concern over the amendment's effect on fertility treatments was a major factor in its defeat. The proposed amendment defined a "person" as "every human being from the moment of fertilization, cloning, or the functional equivalent thereof." (See prior related posting.)

Controversial Navy Chaplain Sues For Reinstatement and Back Pay

Former Navy chaplain Gordon James Klingenschmitt, who has been in a long-running battle with the military over regulation requiring chaplains to deliver inclusive prayers at military events other than religious services, has filed suit in the U.S. Court of Federal Claims seeking back pay, restoration to active duty and removal of a court martial conviction and a letter of reprimand from his service record.  Klingenschmitt insisted he had a right to pray "in Jesus name" whenever he led prayers. (See prior related posting.) The complaint (full text) in Klingenschmitt v. United States, (Ct. Fed. Cl., filed 11/1/2011), contends that the various actions taken against him violate the Religious Freedom Restoration Act. World Net Daily reported on the lawsuit yesterday.