California High Court Tells 9th Circuit: Initiative Proponents Have Standing

The California Supreme Court yesterday gave a substantial boost to backers of Proposition 8-- the initiative that amended the state constitution to bar recognition of same-sex marriage.  In a lengthy and unanimous decision in Perry v. Brown, (CA Sup. Ct., Nov. 17, 2911), the state's high court held that:

when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state‘s interest in the initiative‘s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.

Justice Kennard also filed a concurring opinion.  The court's decision came in response to a question certified to the California Supreme Court by the U.S. 9th Circuit Court of Appeals in a federal lawsuit challenging the constitutionality under the U.S. Constitution of Proposition 8. The federal district court held that Proposition 8 violated the due process and equal protection clauses of the U.S. Constitution.  State officials refused to defend the constitutionality of Proposition 8 and official proponents of Proposition 8 sought to intervene to defend the measure. (See prior posting). AP reports on yesterday's opinion.

Court Protects Anonymity of Blogger Who Criticized Spiritual Organization

In Art of Living Foundation v. Does 1-10, (ND CA, Nov. 9, 2011), a California federal district court held that plaintiff, an organization dedicated to teaching the spiritual lessons of Ravi Shankar, cannot not force Internet service providers at this time to reveal the name of an anonymous online blogger. In expressing concern about protecting the right of anonymous speech, the court noted that this case is unusual because the anonymous blogger appeared in the litigation under a pseudonym, and even participated in discovery.  Art of Living Foundation asserted claims of defamation, misappropriation of trade secrets, copyright infringement and trade libel against the blogger. Reporters Committee for Freedom of the Press reports on the decision.

ACLU Says School Cannot Avoid Prayer Ban By "Spinning Off" Commencement

Earlier this month, the ACLU of Nebraska announced that it had sent a letter (full text) to the Superintendent of the Lakeview Community Schools in Columbus, Nebraska demanding an end to prayers at high school graduation ceremonies. As reported yesterday by New American, the high school has an unusual justification for the practice. Ten years ago when the ACLU questioned prayer at the school's graduation ceremonies, the school "spun off" graduation ceremonies to the parents for them to run, hoping thereby to turn graduation into a private event at which prayer is permissible. However, the ACLU's current letter contends that the school "may not circumvent ... basic constitutional prohibitions by enlisting other private groups to present religious messages to students."

Another Cross Appears and Is Removed From Sunrise Rock

The long-running battle over the the cross on Sunrise Rock in the Mojave Desert Veterans' Memorial is back in the news. Congress attempted to transfer the land on which the cross was constructed to the VFW to avoid an Establishment Clause challenge. In a fragmented decision, the U.S. Supreme Court sent the challenge to the land transfer back to the lower courts. (See prior posting.) Subsequently the cross that was the subject of litigation was stolen, private parties erected a replica (see prior posting) and the National Park Service removed the replica to comply with a district court injunction that was still in effect. (Background from NPS). Yesterday Scripps Howard reported that yet another cross appeared on Sunrise Rock on Monday. Park Service rangers removed it on Tuesday. Park Service police will investigate who erected the cross and whether a crime was committed. Both this cross and the former one that was removed will be held as evidence while negotiations to settle the lawsuit over the land transfer continue. On Tuesday, the federal district court granted the parties a 90-day extension in their attempts to reach a settlement.

11th Circuit Dismisses Christian Coalition's Suit On Non-Profit Tax Status

In Christian Coalition of Florida, Inc. v. United States, (11th Cir., Nov. 15, 2011), the 11th Circuit held that a tax refund suit needed to be dismissed as moot after the IRS refunded the disputed taxes in full. Christian Coalition of Florida ("CC-FL") sought IRS recognition as as Section 501(c)(4) social welfare organization. However IRS refused the application, concluding that CC-FL's activities primarily constitute participation in political campaigns-- an activity not permitted for 501(c)(4) organizations.  CC-FL paid the small amount of taxes due and then claimed a refund.  IRS refunded a portion of the taxes. CC-FL sued for a refund as to the remainder ($261) and also sought declaratory and injunctive relief in order to challenge the IRS determination that it was not entitled to 501(c)(4) status. Shortly after the litigation was filed, IRS refunded the remaining taxes.  The court agreed with the government that the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act preclude CC-FL from suing to obtain favorable tax status for future years. A special tax code provision (26 USC 7428) allows groups claiming Section 501(c)(3) status to obtain declaratory judgments, but the provision does not apply to 501(c)(4) organizations which do not face the same problem of losing donations when their deductibility is open to question.  Contributions to 501(c)(4) groups generally are not deductible in any event.

11th Circuit: RLUIPA "Equal Terms" Violation, But Only Nominal Damages Awarded

Covenant Christian Ministries, Inc. v. City of Marietta, Georgia, (11th Cir., Sept. 7, 2011), is an interesting RLUIPA case decided earlier this year which has just now come to my attention.  The case involves a RLUIPA challenge brought by a church to a city's zoning ordinance which prohibited religious institutions from locating in various residentially zoned areas, even though private parks, playgrounds and neighborhood recreation centers were permitted. The 11th Circuit upheld the district court's conclusion that the ordinance violates RLUIPA's "equal terms" provisions, but that plaintiff is entitled only to nominal damages.  The district court remedied the unequal treatment in the zoning law by holding that private parks, playgrounds and neighborhood recreation centers should be excluded from the residentially zoned areas, just as religious institutions were. Thus, according to the 11th Circuit, the church obtained no vested right to build its church under the ordinance's original language. Shortly after the district court's decision, the city amended its zoning law in a manner that still treats all places of assembly, religious and non-religious, alike.  They are special uses requiring special approval by city council.  According to the 11th Circuit, this change mooted plaintiff's claims for injunctive relief under the earlier law. (See prior related posting.) [Thanks to Christopher Lund via Religionlaw for the lead.]

Muslim Protesters Vandalize Monuments Donated To Maldives By Other South Asian Nations

The 17th Summit of the South Asian Association for Regional Cooperation (SAARC) was held on Nov. 10 to 11 in Addu City, Maldives.  In connection with the Summit, both Pakistan and Sri Lanka donated monuments to the Maldives.  Both monuments were promptly vandalized by protesters who claim the statues are idols that are illegal to import or display in the Maldives. The monument donated by Pakistan was set on fire and later stolen. Two men have been arrested in the incident.  However, according to Minivan News yesterday, Adhaalath Party President Sheikh Imran Abdulla said the monument "conflicts with the constitution of the Maldives, the Religious Unity Act of 1994 and the regulations under the Act because it depicted 'objects of worship' that 'denied the oneness of God'." The paper reports further:

The religious Adhaalath Party and the party of former President of Maumoon Abdul Gayoom, the Progressive Party of the Maldives (PPM), have declared those responsible for destroying the monument to be “national heroes”.

The Sri Lankan statue, a lion (representing Sri Lanka's national symbol), was doused with crude oil, according to as separate Minivan News report yesterday. Ahmed 'Marz' Saleem, PPM Council, member filed a complaint with police against the Maldives Customs Department for its allowing "idols" to be imported into the country. He says the importation violates the Police Act, Customs Act, Contraband Act and the Religious Unity Act.

UPDATE: According to Haveeru News Service (11/17), the Maldives Islamic Ministry has ordered the Foreign Ministry, the President’s Office and Addu City Council to remove monuments displaying irreligious graphic content. The Pakistani monument is the clearest example. However the President's press secretary said that "returning a gift given by another government is not an easy thing to do."

USCIRF Will Get Another Temporary Extension In Continuing Resolution

As previously reported, under the International Religious Freedom Act, the U.S. Commission on International Religious Freedom would have gone out of business on Sept. 30, 2011. However provisions in two Continuing Resolutions have kept it alive pending enactment of a two-year reauthorization bill that has been passed by the House and is pending in the Senate. The latest of the Continuing Resolutions extended USCIRF's life to this Friday, Nov. 18.  Now, however, another temporary reprieve is apparently about to be enacted.  As reported in a memo issued Monday by the chairman of the House Appropriations Committee, the final conference report on the Fiscal Year 2012 Agriculture, Commerce/Justice/Science, and Transportation/Housing and Urban Development Appropriations bill – sometimes known as the "Mini-bus" contains yet another Continuing Resolution continuing other operations of the federal government until Dec. 16. (House Report 112-284 full text). The convoluted language of this Continuing Resolution has the effect of also extending USCIRF until Dec. 16.  The CR provides that:

The Continuing Appropriations Act, 2012 (Public Law 112-36) is amended by striking the date specified in section 106(3) and inserting "December 16, 2011".

Public Law 112-36 in turn extended the life of USCIRF through a provision reading:

Section 209 of the International Religious Freedom Act of 1998 (22 U.S.C. 6436) shall be applied by substituting the date specified in section 106(3) of this Act for "September 30, 2011".

In response to an inquiry, USCIRF Chairman Leonard Leo told Religion Clause blog by e-mail:

There is a provision in the CR to keep USCIRF going if the reauth cannot be achieved by the end of the week. But, we are hoping that the Democrats will move forward and get it done in the next couple of days. It would be shameful if, as other countries around the world create institutions like USCIRF, we shut ours down.

UPDATE: The White House website reports that the President signed the legislation on Nov. 18.

Bishop-Prosecutor Agree To Monthly Meetings On Child Abuse Evidence To Avoid Indictments

As previously reported, a Jackson County, Missouri grand jury last month indicted Catholic bishop Robert W. Finn and the Diocese of Kansas City-St. Joseph on misdemeanor charges growing out of their delay in reporting to authorities pornographic photos of girls found on a priest's laptop computer. The New York Times reported yesterday that now Bishop Finn has entered an agreement with the prosecuting attorney of neighboring Clay County to avoid indictment there as well. The bishop will meet monthly for the next five years with the prosecutor to report every suspicious episode in his diocese involving child abuse.  Finn will also visit each parish in Clay County to inform parishioners on how to report suspicious behavior. Victims' advocates criticized the agreement as ineffectual.

FBI May Invoke FOIA Exemption For Its Investigations Guide

In Muslim Advocates v. United States Department of Justice, (D DC, Nov. 10, 2011), the U.S. District Court for the District of Columbia held that the federal government can rely on the exemption in the Freedom of Information Act for certain law enforcement records to deny an advocacy group unredacted copies of chapters of the FBI's Domestic Investigations and Operations Guide. The court upheld in part the government's release of only a redacted version of the Guide. However, the court called for additional explanation of the government's insistence on extensive redactions in one of the chapters.

The 2009 complaint (full text) in the case contended that plaintiffs sought the documents because of their relevance to concerns over racial and religious profiling and  concerns about infringement of privacy and various 1st Amendment rights. In 2008, prior to implementing the Guide, the FBI had held two meetings with civil rights and civil liberties organizations to discuss the Guide. The attendees were allowed to review unredacted versions of 4 chapters, and take notes on them, for about two hours. Plaintiffs claimed that this waived the government's right to now withhold these chapters under FOIA exemptions. The court held, however, that it "is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public'." Reporters Committee for Freedom of the Press reports on the decision.

Illinois Catholic Agencies Drop Suits Seeking To Keep Foster Care Funding

The Chicago Tribune reported yesterday that the Catholic dioceses of Joliet, Springfield and Belleville, Illinois have dropped their lawsuits against the state of Illinois in which they were seeking to retain state funding for foster care services without placing children with same-sex couples who had entered civil unions. (See prior posting.) An attorney for Catholic Charities says that they were forced to drop the lawsuit when the state delayed payments to the agencies and thus prevented foster care parents from receiving payment.

Meanwhile, Catholic Social Services of Southern Illinois announced that it was separating from the Diocese of Belleville and as a new organization, Christian Social Services of Illinois, will continue to offer foster care services in compliance with Illinois Religious Freedom Protection and Civil Union Act. A statement by the Diocese of Springfield indicated that it is completely ending its foster care and adoption services, but added: "The silver lining of this decision is that our Catholic Charities going forward will be able to focus on being more Catholic and more charitable, while less dependent on government funding and less encumbered by intrusive state policies."

Bishops Express Concern Over Government Policies Seen As Infringing Catholic Religious Freedom

According to AP, the Fall meeting of the U.S. Conference of Catholic Bishops, being held from Nov. 14-17, is focused heavily on religious freedom and the perceived infringement of Catholic religious liberty by various policies of federal and state governments. (See prior posting.)  AP reported in part:

Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said the bishops are not just reacting to Obama's policies, but to a broader society in a "drive to neuter religion" and "push religion back into the sacristy."

... But Dolan said he discussed the church's concerns with Obama when the two men met last week in the Oval Office. The archbishop said Obama was "extraordinarily friendly" and "very ardent" in reassuring Dolan that the administration would look into the problems.

"I left there feeling a bit more at peace with this issue than when I entered," Dolan said.

However yesterday the USCCB issued the following statement:

The meeting between President Obama and Archbishop Dolan on November 8 at the White House was very cordial and included pertinent moral concerns arising in foreign and domestic policy, issues of both agreement and disagreement. Both President Obama and Archbishop Dolan agreed that this was a private meeting, so no further details will be discussed.

FBI Releases 2010 Hate Crime Data

The FBI yesterday released its report on 2010 Hate Crime Statistics. (Full text of report.) Of the 6,224 single bias incidents reported in 2010, 20% were motivated by religious bias-- second only to racially motivated hate crimes which accounted for 47.3% of the incidents.  Sexual orientation bias was involved in 19.3% of the single bias incidents. Of the 1,409 hate crimes offenses motivated by religious bias, 65.4% were anti-Jewish; 13.2% were anti-Islamic; 4.3% were anti-Catholic; 3.8% were anti-multiple; 3.3% were anti-Protestant; 0.5% were anti-Atheism/Agnosticism/etc.; and 9.5% involved various other religions. The 6,628 total hate crime incidents in 2010 amounted to an insignificant increase over the 6,604 incidents reported for 2009. (See prior posting.) ADL issued a press release commenting on the 2010 data and decrying the fact that numerous law enforcement agencies around the country failed to report their hate crime data to the FBI.

Bishops Launch New Website Opposing Same-Sex Marriage

The U.S. Council of Catholic Bishops has created a new website-- Marriage: Unique for a Reason-- devoted to defending traditional marriage and opposing same-sex marriage.  A welcoming blog post from Bishop Salvatore J. Cordileone, chairman of the bishops' Subcommittee for the Promotion and Defense of Marriage, says in part:

Confusion about marriage's meaning is common today. What is marriage? Why does sexual difference matter for marriage? Do children have a right to a mom and a dad? Is marriage between one man and one woman discriminatory? These and many other questions are being raised with great urgency, and they call out for answers.

The Marriage: Unique for a Reason website is designed as a home of resources on what the Catholic Church teaches about the unique meaning of marriage, and why.

Supreme Court Denies Cert In Two Religion and Schools Cases

The U.S. Supreme Court today denied certiorari in two cases involving school-related religion issues. (Order List for 11/14/2011). The first case in which it denied review is Workman v. Mingo County Board of Education (Docket No. 11-380). In the case, the 4th Circuit upheld West Virginia's statute requiring vaccination for various diseases as a condition of attending school, rejecting plaintiff's free exercise, equal protection and substantive due process challenges to the requirement. (See prior posting.)

The other case in which the Court denied review is Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School District, (Docket No. 11-402).  In the case, the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral, rejecting complaints by a group that was dedicated to using sports for evangelism that under the policy it was limited to distributing its flyers once per year. (See prior posting.)  Education Week reports on the Supreme Court's denial of cert. in both cases.

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.

D.C. Circuit Upholds Health Care Reform, Giving Short Shrift To Religious Freedom Argument

The D.C. Circuit Court of Appeals today upheld the constitutionality of the Affordable Care Act, last year's federal health care reform law.  In Seven-Sky v. Holder, (DC Cir., Nov. 8, 2011), the majority opinion, the concurrence and the dissent focused virtually all of their attention on (1) whether the Anti-Injunction Act bars a pre-enforcement challenge to the individual mandate; and (2) whether Congress had authority under the commerce clause to impose the mandate.  The majority opinion, written by Judge Silberman, found that the Anti-Injunction Act is not a bar to the lawsuit and that Congress acted within its commerce clause powers. Judge Edwards filed a short concurring opinion. Judge Kavanaugh dissented concluding that the Anti-Injunction Act creates a jurisdictional bar to the court deciding the case at this time.

In the case, plaintiffs also invoked the Religious Freedom Restoration Act, arguing that the requirement they purchase health insurance conflicts with their Christian faith by insisting they perform an act that implies they doubt God's ability to provide for their health. The district court (see prior posting) spent 5 pages rejecting that argument. In today's opinion, Judge Silberman disposed of the RFRA argument in a footnote (fn. 4):

We affirm the dismissal of appellants’ Religious Freedom Restoration Act claim, because we agree with the district court’s reasoning that appellants failed to allege facts showing that the mandate will substantially burden their religious exercise.

The White House blog noted the decision.

Lastest Flap Over Prayer Surrounds Proposed Plaque At World War II Memorial

Another battle over government recognition of religion appears to be developing in connection with H.R. 2070, the World War II Memorial Prayer Act of 2011.  The proposed law would add a plaque with Franklin Roosevelt's D-Day Prayer to the World War II Memorial in Washington.  At a hearing on the bill held last week, Robert Abbey, director of the Bureau of Land Management, testified (full text of prepared statement) in part:

The Commemorative Works Act specifically states that a new commemorative work shall be located so that it does not encroach upon an existing one. It is not a judgment as to the merit of this new commemoration, simply that altering the Memorial in this way, as proposed in H.R. 2070, will necessarily dilute this elegant memorial’s central message and its ability to clearly convey that message to move, educate, and inspire its many visitors. The Department strongly believes that the World War II Memorial, as designed, accomplishes its legislated purpose to honor the members of the Armed Forces who served in World War II and to commemorate the participation of the United States in that conflict. It should not be altered in the manner suggested by H.R. 2070.

He added that the National Capital Memorial Advisory Commission and the American Battle Monuments Commission agreed with BLM's position.

Now, however, according to Fox News last week, "Republican lawmakers and conservative activists are expressing outrage" at BLM's opposition.  Rep. Bill Johnson, sponsor of the legislation, said: "For there to be objections to demonstrating a faith in God at critical points in our nation's history -- particularly D-Day -- boggles my mind." And Tony Perkins, president of the Family Research Council, said: "This is further evidence that the administration has created an environment that is hostile towards American history -- but in particular towards Christianity."

Court Finds Employee Was Offered Religious Accommodation

In Antoine v. First Student, Inc., (ED LA, Nov. 4, 2011), a Louisiana federal magistrate judge held that a company which operated school buses for Jefferson Parish, Louisiana had attempted to reasonably accommodate the religious needs of a Seventh Day Adventist bus driver.  The court rejected plaintiff's Title VII religious discrimination claim, finding that the company allowed him to swap his Friday afternoon route with a volunteer, or find a volunteer to cover the route. The company claimed that other alternatives would have violated its collective bargaining agreement. [Thanks to CCH Employment Law Daily via Steven H. Sholk for the lead.]

New Tunisian Constitution Will Not Call For Shariah Law

In Tunisia, Rachid Ghannouchi, head of the moderate Islamic Ennahda party that won 40% of the seats in Parliament in last month's elections, says that the country's new constitution will not make reference to Shariah or Islamic law.  According to Bikya Masr yesterday, all parties have agreed to keep the old constitution's Art. 1 that provides: "Tunisia is a free, independent and sovereign state. Its religion is Islam, its language is Arabic and its type of government is the Republic." However there will be no other mention of religion in order to maintain a secular interpretation of law in the country. (See prior related posting.)

Supreme Court Refuses Review In Jehovah's Witness Challenge To Controlled Access Law

The Supreme Court today denied certiorari in Watchtower Bible and Tract Society of New York, Inc. v. Segardia de Jesus, (Docket No. 11-26, cert. denied 11-7-2011). (Order List). In the case, the 1st Circuit dismissed a facial challenge brought by the Jehovah's Witnesses to Puerto Rico's Controlled Access Law, but vacated the trial court's order denying injunctive and declaratory relief on an "as applied" challenge to the law. The challenged statute -- a crime control measure-- authorizes municipalities to grant permits to neighborhood homeowners' associations (urbanizations) so they can control vehicular and pedestrian access to the neighborhood. The Jehovah's Witnesses say this has prevented them from entering neighborhoods to engage in religious proselytizing. (See prior posting.)

Hospital Sues Over Whether It Is A Public Agency-- Church-State Implications

As previously reported, church-state questions are being raised in Kentucky regarding the agreement for the proposed merger of Louisville's University Hospital with two other Kentucky health care systems to create a state-wide network that would be controlled by Catholic Health Initiatives. All of the participating hospitals have agreed to follow Catholic health care policies. The University claims that the hospital is not a public institution so that the church-state issue is irrelevant. Now, according to yesterday's Louisville Courier-Journal, a related state lawsuit has been filed that will bear on that question.  The ACLU and various news organizations have requested documents related to the merger under the state's open records law, and the attorney general last month ruled that the hospital is a public entity that is subject to that law. Now University Hospital has sued to avoid turning over records on the ground that it is not a public agency subject to the open records requirements, but instead is a private non-profit corporation.

Church Violates Fair Housing Act In Trying To Set Up Sex Offender Program

Florida's sexual offender law, FL Stat Sec. 947.1405(7)(a)(2), provides that certain sex offenders who have been conditionally released from prison may not live, among other places, within 1000 feet of a public school bus stop. Matthew25Ministries, a prison ministry that has developed an after-care program for those charged with sex crimes, leased all the units in Pelican Lake Village apartments, a Palm Beach County (FL) apartment complex, intending to sublease them to sex offenders as they became available. However it could not do so while a school bus stop was located at the site.  The Ministry was unsuccessful in getting the school bus stop moved. Therefore it told families with children living in the apartment complex that they would be required to move out. Presumably that would eliminate the bus stop. The affected families filed suit in federal district court charging violations of the federal Fair Housing Act (42 USC 3604) that prohibits discrimination in rentals on the basis of familial status. In two opinions (full text 1,  full text 2) in Whyte v. Alston Management, Inc., (SD FL, Nov. 1, 2011), a Florida federal district court held that Matthew25Ministries, as well as the real estate management companies involved and their employees, are liable for violations of 42 USC 3604(a)-(c). Last Friday's Palm Beach Post reports on the decisions.

Recent Articles of Interest

From SSRN:

• Ruth E. Gavison, The Law of Return at Sixty Years: History, Ideology, Justification, (October 31, 2011).
• William J. Haun, A Standard for Salvation: Evaluating 'Hybrid Rights' Free-Exercise Claims, (November 1, 2011).
• Richard Albert, The Constitutional Politics of the Establishment Clause, (Chicago-Kent Law Review, Vol. 87, No. 1, 2012).
• Wendy S. Goffe, An Estate Planners Roadmap to the Valley of the Shadow of Death: Health Care Directives from Religious Perspectives. Fear No Evil, (November 3, 2011).
• Matthew Hood, John R. Nofsinger and Abhishek Varma, Conservation, Discrimination, and Salvation: Investors' Social Concerns in the Stock Market, (November 4, 2011).

From SmartCILP:

• Helen M. Alvare, Bishops v. Nuns in Jeeps? Why a Facially "Intra-Catholic" Health Care Dispute Matters, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 563-591 (2011).
• Bishop Thomas John Paprocki, Caring for the Sick: The Catholic Contribution and Its Relevance, [Abstract], 25 Notre Dame Journal of Law, Ethics and Public Policy 447-461 (2011).
• Redeeming Law: Christian Calling in the Legal Profession. Keynote addresses by J. Budziszewski and Michael P. Schutt; panel participation with Janet Epp Buckingham, Roger Alford and Brad Jacob, moderators; Teresa S. Collett, Santiago Legarre, Gabriel Mora-Restrepo, Ken Starr, Zhang Shoudong, Kwame Frimpong, Li-Ann Thio and Vilma C. Balmaceda, panelists. 7 Regent Journal of International Law 1-163 (2009).

Trade Group Wants Court To Bar Utah Legislators From Considering Mormon Views In Enacting Liquor Laws

Utah's Senate Bill 314, signed by the governor last March, imposes new limitations on liquor licenses and the sale of alcoholic beverages. Among other things, it eliminates discount pricing of alcoholic beverages offered by social clubs and links the issuance of liquor licenses to social clubs to both population quotas and the number of public safety officers employed by the State of Utah. As reported by Fox News last week, in June the Utah Hospitality Association filed a federal lawsuit challenging the new law on antitrust grounds. An amended complaint (full text) was filed on Oct. 27 in Utah Hospitality Assoc. v. Herbert, (D UT), now also seeking:

a declaration that the legislators of the State of Utah shall not consult with, or consider the opinions of, the Church of Jesus Christ of Latter Day Saints when making alcohol policies during future legislative sessions [, and] ... a declaration that the legislators consultation with the Church of Jesus Christ of Latter Day Saints when making alcohol policies during the 2011 legislative session was unconstitutional.

Recent Prisoner Free Exercise Cases

In Olivier v. Scribner, 2011 U.S. Dist. LEXIS 125755 (SD CA, Oct. 31, 2011), a California federal district court dismissed an inmate's complaint that he was not provided a kosher diet. Plaintiff failed to allege sufficient facts to support a claim under RLUIPA or the 1st Amendment.

In Funtanilla v. Williams, 2011 U.S. Dist. LEXIS 126238 (ED CA, Oct. 31, 2011), a California federal magistrate judge allowed a Seventh Day Adventist, incarcerated at a substance abuse and treatment facility, to proceed with his complaint that he was not permitted to post a copy of the 10 Commandments on his door. However the court dismissed, with leave to file an amended complaint, plaintiff's claims that his rights were violated when he was not furnished a pastor or access to group services or provided with food at his cell on the Sabbath.

In Saif'ullah v. Haviland, 2011 U.S. Dist. LEXIS 126249 (ED CA, Oct. 31, 2011), a California federal magistrate judge held that a Muslim inmate failed to state a habeas corpus claim in his complaint that his parole suitability hearing was held during Ramadan and in his complaints he was not given his cup when the Ramadan daily fast was over and was denied an evening meal on one occasion.

In Whitfield v. Illinois Department of Corrections, 2011 U.S. Dist. LEXIS 126475 (SD IL, Nov. 2, 2011), an Illinois federal magistrate judge, while dismissing a number of claims, allowed an inmate (whose religion was not specified in the opinion) to proceed with individual capacity damage claims based on alleged denial of religious meals, unequal allocation of funds for religious programs and services, forcing plaintiff to get a TB shot on the Sabbath, and inadequate training of personnel.

In Gregorio v. Aviles, 2011 U.S. Dist. LEXIS 127155 (D NJ, Nov. 3, 2011), a New Jersey federal district court dismissed, with leave to amend, an inmate's claim that his 1st Amendment and RLUIPA rights were violated because his portion of the prison was not allowed to attend religious services.

Mississippi Governor Supports Personhood Amendment

On Friday, Mississippi Governor Haley Barbour posted a statement on his official website indicating that he supports Initiative 26, the Personhood Amendment that will appear on the ballot in Mississippi this week. The statement reads:

A pro-abortion group has called people's homes and deceived voters into thinking I'm opposed to Initiative 26, the Personhood Amendment. As I've previously stated, I voted for the Personhood Amendment. These misleading calls were made without my knowledge, without my permission and against my wishes. I have demanded this deception be stopped, and those responsible have assured me that no more calls will be made.

The State Column reported yesterday that the robocalls to which Barbour refers used a portion of an MSNBC interview with Barbour in which he expresses concern about the ambiguity of the language of Initiative 26.  The proposed constitutional amendment provides: "As used in this Article III of the state Constitution, "The the term 'person' or 'persons' shall include every human being from the moment of fertilization, cloning, or the functional equivalent thereof."

White House Statement Sends Greetings To Muslims On Eid and Hajj

President Obama today released a statement (full text) sending greetings for a happy Eid al-Adha to Muslims around the world observing the feast on Monday. The statement also congratulates those performing Hajj, which began today. The President said in part: "The Eid and Hajj rituals are a reminder of the shared roots of the world’s Abrahamic faiths and the powerful role that faith plays in motivating communities to serve and stand with those in need." AP reports that some 2.5 million pilgrims are taking part in the 5-day Hajj in Saudi Arabia. Meanwhile, according to today's Jakarta Globe, in Indonesia police in Banten arrested 3 officials from the Ministry of Religious Affairs for fraud. They took up to $5600 each from dozens of people who thought they were paying for arrangement to perform Hajj.

Air Force Academy Changes Backing Of Christmas Project

The Colorado Springs Gazette reported Thursday that the U.S. Air Force Academy has withdrawn its general solicitation of cadets by cadet leaders to support Operation Christmas Child. The program, sponsored by an evangelical Christian group, sends toys and toiletries to children around the world in boxes that also contain religious messages. The Academy has instead turned participation in the project over to Academy chaplains who can recruit support for religious activities. The change was made after a complaint was filed by Mikey Weinstein, head of the Military Religious Freedom Foundation. The Air Force Academy has been embroiled in numerous controversies in recent years accusing it of promoting Christianity to its cadets. (See prior related posting.)

Michigan Anti-Bullying Bill Criticized Over Religious Exemption

Michigan is one of three states without an anti-bullying law. Currently, Matt's Safe School Law, SB 45, is working its way through the state's legislature. ABC News reports that the state Senate passed the bill last Wednesday, but added a controversial exemption that provides the bill "does not prohibit a statement of a sincerely held belief or moral conviction." Columnist Dan Savage strongly criticized the exemption, saying:

It really is a God-hates-fags-special-rights-for-Christians-to-abuse-LBGT-kids-in-the-school law. It's a law that specifically empowers students, teachers, administrators [and] principals to bully LGBT kids if they can point to a moral justification."

Bill sponsor Rick Jones says this language was not intended to allow a child to be confronted or abused, but was merely designed to protect the child who says in class that his religion does not believe in same-sex marriage.  Jones says he is open to the language being changed, so long as students' 1st Amendment rights are protected.


UPDATE: The Michigan House of Representatives on Nov. 10 passed HB 4163, a version of the anti-bullying law that does not contain the language exempting statements motivated by religious or moral beliefs. (Huffington Post.)

Summum Sues Pleasant Grove Again-- Now In State Court

The Summum organization has been attempting for several years to obtain permission to put up a Seven Aphorism's monument in a park in Pleasant Grove City, Utah. The park already contained a number of other monuments, including the Ten Commandments.  The city's refusal has been upheld against federal constitutional challenges by the U.S. Supreme Court (see prior posting) as well as subsequently on remand by the Utah federal district court. (See prior posting.) However the federal district court declined to exercise supplemental jurisdiction to hear Summum's claim that the city's refusal violates Utah's state constitution. The Provo (UT) Daily Herald today reports that now Summum has filed another lawsuit in state court raising the state constitutional claims. It alleges that the state establishment clause (Art. I, Sec. 4) is broader than the federal establishment clause.

Nurses Sue NJ Hospital Claiming Forced Participation In Abortion Procedures

A lawsuit was filed last week by a group of nurses against the University of Medicine and Dentistry of New Jersey claiming that the University has demanded that the nurses assist in abortions in violation of their religious objections, and that they begin training to do so immediately.  The complaint (full text) in Danquah v. University of Medicine and Dentistry of New Jersey, (D NJ, filed 10/31/2011), alleges that these demands violate federal and state statutes that protect the conscience rights of medical personnel, and also violate the 14th Amendment. AP reported yesterday that the University has assured the court that it will not require nurses to participate in the training until after a scheduled Nov. 18 court hearing.

Mormon Church Sues Texas City To Challenge Denial of Zoning Permit

The Mormon Church last week filed a federal lawsuit against the city of Mission, Texas, challenging its refusal to grant a conditional use permit for a new church building that was needed to alleviate the inadequate space currently available for local church members to worship. The complaint (full text) in Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. City of Mission, (SD TX, filed 10/31/2011), alleges that the city arbitrarily imposed a super-majority City Council voting requirement for approval of the permit, and that  one member of City Council should have abstained from voting because of a conflict of interest. The suit claims violations of RLUIPA, the Texas Religious Freedom Restoration Act, and free exercise and due process provisions of the Texas and U.S. Constitutions. Yesterday's Rio Grande Valley Monitor reported on the lawsuit.

Preliminary Injunction Permits Student To Distribute Religious Flyers

In K.A. v. Pocono Mountain School District, (MD PA, Oct. 20, 2011), a Pennsylvania federal district court issued a preliminary injunction permitting an elementary school student to hand out non-school related religious flyers.  The suit was filed after school officials barred the student from handing out invitations to a Christmas party at her church.  The court said that where, as here, student speech is involved, analysis should focus on the "disruption" test developed in the Tinker case, and not an analysis of whether a school is a nonpublic forum. The North County Gazette reports on the opinion. (See prior related posting.)

New Poll Shows Small Increase In U.S. Anti-Semitic Attitudes

The Anti-Defamation League released a new national poll yesterday finding a slight increase in anti-Semitic attitudes of Americans over the past two years. The survey found that 15% of Americans hold deeply anti-Semitic views, up from 12% in 2009. The survey demonstrated that old attitudes and stereotypes are still prevalent in significant groups of the population.  14% agreed with the statement that Jews have too much power in the United States. 31% agreed with the statement that the Jews were responsible for the death of Christ.

Canadian Court Rules In Sikh Temple Factional Dispute

A Canadian trial court in Windsor, Ontario has issued a ruling in a factional dispute at the Sikh Cultural Society of Metropolitan Windsor.  As reported by the Windsor Star on Wednesday, the court determined which members of the Sikh temple are eligible to vote at an upcoming election. The dispute arose when the temple's former leader, Dr. Sukhdev Singh Kooner, refused to hand over leadership to a newly elected executive committee.  On several occasions, violence has erupted between the factions.  The court this week also ordered Kooner and his supporters to stay away from the temple, except for Sunday worship services, for the next three months while elections are being held.

Britain To Permit Civil Partnership Ceremonies On Religious Premises

On Wednesday, Britain's Equalities Office published a summary of the responses to its consultation on regulatory changes that would permit same-sex civil partnership ceremonies to take place on the premises of religious institutions in England and Wales. The report includes a draft of The Marriages and Civil Partnerships (Approved Premises) (Amendment) Regulations 2011 to implement the changes. (Full text of report.) The report says:

Making this change will allow those religious organisations that wish to do so to host civil partnership registrations on their religious premises. This voluntary provision is a positive step forward for both LGB rights and religious freedom.

The decision by any particular faith group on whether they wish their premises to be designated for civil partnership ceremonies is entirely voluntary.  The proposed regulations will leave it up to local authorities to decide whether they will as well designate clergy who apply to become civil partnership registrars. The draft Regulations will be laid before Parliament so they can come into force by the end of 2011.  The government also promised to publish a consultation document in March 2012 on equal civil marriage. Anglican Journal on Wednesday reported on developments.

Prosecutor Settles Religious Discrimination Law Suit

The Youngstown Vindicator reported Tuesday that a settlement has been reached in Ally v. City of Youngstown, a federal law suit by a Muslim assistant prosecutor in the Youngstown, Ohio Law Department alleging religious discrimination and failure to accommodate his need to attend Friday mosque services. (See prior posting.) In the settlement, plaintiff Bassil Ally will receive an immediate payment of $110,000 and will also receive a $4000 per year raise in his salary. Ally is now permitted to adjust his lunch schedule to attend Friday mosque services.

7th Circuit Hears Arguments In Bald Knob Cross Case

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Sherman v. State of Illinois. An audio recording of the full oral arguments is available online. In the case, an Illinois federal district court dismissed a suit by activist Robert Sherman that challenged on Establishment Clause grounds a $20,000 state renovation grant for Bald Knob Cross. The district court dismissed the complaint on mootness and standing grounds. (See prior posting.) The Chicago Tribune reported on yesterday's oral arguments which focused in part on whether legislative intent that certain appropriated funds be used for Bald Knob creates a specific legislative appropriation which a taxpayer can have standing to challenge.

Turkish Court Upholds Alevis' Right To Create Houses of Worship

Today's Zaman on Wednesday reported on a trial court decision in Turkey that vindicates the right of Alevis to maintain their own houses of worship (cemevi). In 2004, Turkey's Religious Affairs Directorate took the position that "it is not possible to consider cemevis and other [such] places as places of worship because Alevism, which is a sub-group of Islam, cannot have a place of worship other than mosques or mescit that are common places of worship within Islam." Relying on this, the Interior Ministry asked the Çankaya Cemevi Building Association to remove references to cemevis as places of worship from its bylaws. The Association refused and the Ankara Prosecutor's Office moved to shut down the Association. The Ankara 16th Court of First Instance rejected the government's petition, writing:

Alevi cemevis or cem houses have been socially known and accepted as places of worship for centuries. The provision that cemevis are places of worship, which was included in the association’s bylaws, is not in conflict with Article 2 of the Turkish Constitution and there is not a law that prohibits this in the Turkish Constitution.

French Satirical Paper Fire Bombed Over Treatment of Islamic Law

The Los Angeles Times reports that in France yesterday, the Paris headquarters of the satirical newspaper Charlie Hebdo was fire bombed as a special edition of the French paper satirizing Islamic law in Libya and Tunisia was about to hit the newstands. According to the Daily Beast, which carries a photo of the cover of the special issue, Charlie Hebdo's website was also hacked. Muslim groups in France condemned the fire bombing, but also expressed disapproval of the depictions in the satirical issue.

Clergy Sexual Assault Provision Upheld Against Constitutional Challenge

In Smith v. Thaler, 2011 U.S. Dist. LEXIS 125869 (ND TX, Sept. 7, 2011), a Texas federal magistrate judge rejected overbreadth, vagueness and Establishment Clause challenges to a provision (TX Penal Code Sec. 22.011(b)(10)) in the Texas sexual assault statute. The challenged section provides that a sexual assault is without the consent of the other person if "the actor is a clergyman who causes the other person to submit or participate by exploiting the other person's emotional dependency on the clergyman in the clergyman's professional character as spiritual adviser." A federal district judge subsequently accepted the magistrate's findings denying habeas corpus relief, and also denied a certificate of appealability. (2011 U.S. Dist. LEXIS 121962, Oct. 20, 2011).

2012 Religious Freedom Moot Court Competition Announced

George Washington University Law School has announced that it will host the 6th Annual National Religious Freedom Moot Court Competition on Feb. 11-12.  The competition is open to teams from law schools around the country. According to GW Law Professor Ira Lupu, this year's problem involves the interpretation and constitutionality of the religious performance exception in the Copyright Act of 1976 (17 USC Sec. 110(3).) Registration deadline for teams is Nov. 7.

Establishment Clause Challenge To Women's Studies Program Dismissed On Collateral Estoppel Grounds

In Hollander v. Members of the Board of Regents of the University of the State of New York, 2011 U.S. Dist. LEXIS 125593 (SD NY, Oct. 31, 2011), a New York federal district court adopted a magistrate's recommendations and dismissed on collateral estoppel grounds an Establishment Clause lawsuit by an alumnus of Columbia University. Plaintiff challenged provision of public funds to Columbia, arguing that the University's Women's Studies program unconstitutionally promotes a religion of feminism. In previous litigation, the same claim had been dismissed on standing grounds. UPDATE: The magistrate's recommendations are at 2011 U.S. Dist. LEXIS 126375, July 1, 2011.

IRS Changes Preserve Social Security Conscience Exemption For LLCs

Yesterday the Internal Revenue Service published T.D. 9554 in the Federal Register. As explained by the Journal of Accountancy, the release amends federal tax regulations under Sec. 3127 of the Internal Revenue Code. That section provides an exemption from Social Security taxes where both the employer and employee are members of a religious sect that opposes participation in Social Security. However, changes in regulations in 2009 created a problem where the employer was not an individual, but instead a so-called "disregarded entity"-- primarily a limited liability company (LLC) wholly owned by one individual. The 2009 changes treated the LLC as the employer-- and the LLC as an artificial business entity, of course, has no religious beliefs. The changes made yesterday assure that the exemption will continue to be available where the sole owner of the LLC is an individual whose religious faith opposes participation in Social Security.

House Reaffirms "In God We Trust" As National Motto

Yesterday, by a vote of 396- 9 (with 2 members voting "present"), the U.S. House of Representatives passed H Con Res 13, reaffirming "In God We Trust" as the national motto and encouraging its display in public buildings. Christian Post outlines the background events leading to the resolution. Americans United criticizes the House for spending time on the resolution.

House Hearing Today On Health Law and Conscience Rights

The Health Subcommittee of the House Energy and Commerce Committee will hold a hearing today on "Do New Health Law Mandates Threaten Conscience Rights and Access to Care?" The advance written testimony of the 5 witnesses is available online from the Committee's website. Testfying will be representatives of the Alliance of Catholic Health Care; Christian Medical Association; Archdiocese of Washington, D.C.; Catholics for Choice; and Washington Hospital Center. Life News reports on the scheduled hearing.

Catholic Group May Sue Over Loss of Grant For Serving Trafficking Victims

The Washington Post reported Monday that the U.S. Conference of Catholic Bishops may sue the Department of Health and Human Services over the its refusal to renew a grant to the USCCB for it to provide services for victims of human trafficking. Instead the grant money will be shared by 3 other non-profit groups.  Apparently career staff at HHS's Office of Migration and Refugee Services recommended that the grant which USCCB has held since 2006 be awarded to it again, on the basis of scores assigned by an independent review board. However senior political appointees reportedly overruled them because USCCB will not refer victims of trafficking for contraceptive or abortion services.  The Catholic group did allow subcontractors to refer women for these services, but would not reimburse the subcontractors with federal grant funds. The ACLU sued over USCCB's practices in 2009. USCCB Media Blog earlier this month accused HHS of having an "ABC Rule", i.e. "Anybody But Catholics."

Court Upholds School's Ban of Anti-Islam T-Shirts

In a decision that has just become available, Sapp v. School Board of Alachua County, Florida, (ND FL, Sept. 30, 2011), a Florida federal district court upheld against free expression challenges a school's dress codes that were applied to send students home for wearing T-shirts carrying the slogan "Islam is of the Devil."  The children who wore the T-shirts came from two families that were members of the Dove World Outreach Center. The Center had gained notoriety for promoting a "Burn a Quran Day." (See prior posting.)  At issue in the new decision were two separate versions of a dress code, in effect in successive school years. (See prior related posting.)  [Thanks to Volokh Conspiracy for the lead.]

Parents Get 75 Months In Faith Healing Death of Infant

In Calckamas County, Oregon yesterday, a trial court judge sentenced Dale and Shannon Hickman to 75 months in prison in the death of their infant son, David, who was born prematurely and lived less than 9 hours.  The couple also received 3 years' probation. As reported by the Oregonian and Courthouse News Service yesterday, the Hickmans' who are members of the Followers of Christ Church, failed to seek medical assistance for their infant and instead merely prayed for him and anointed him with olive oil in compliance with their church's teachings.  The Hickmans are the fourth Followers of Christ couple to stand trial in the last 3 years for failing to seek medical care for their children. The sentence was the minimum mandatory sentence under the state's sentencing guidelines. The judge refused to invoke a now-repealed religious exception that could have allowed him to impose less than the mandatory minimum imprisonment, saying the case did not qualify for the  exemption. The Hickman's attorney had sought merely probation, saying that the couple had already taken their two remaining children to a pediatrician, and would comply with court orders regarding medical care for them.

School Attorney Says Weekly Flag Pole Prayer Violates Establishment Clause

According to yesterday's Jacksonville Times-Union, in Clay County, Florida, the attorney for the county school board last week sent the board a Legal Memorandum (full text) concluding that weekly "Prayer Around the Flag Pole" activities involve an endorsement of religion that violates the Establishment Clause. The prayers are led and organized by a local Baptist minister and take place at 8:15 each Monday morning-- nearly an hour after teachers' work time has begun. Teachers, staff and students participate, and the school has promoted the ceremonies in a newsletter to staff and administrators. The attorney's memo says that the minister and others could use school grounds for prayer, so long as they leave before the time teachers report for work.