Recent Articles of Interest

From SSRN:

• John William Tobin, Should Discrimination in Victoria's Religious Schools Be Protected? Using the Victorian Charter of Human Rights and Responsibilities Act to Achieve the Right Balance, (U of Melbourne Legal Studies Research Paper No. 564, Nov. 28, 2011).
• Avishalom Westreich, The 'Gatekeepers' of Jewish Marriage Law: Marriage Annulment as a Test Case, Journal of Law and Religion, Vol. 27, 2012.
• Munir Ahmad Mughal, International Criminal Court: An Examination from Islamic Point of View, (November 30, 2011). 

From SmartCILP and elsewhere:

• Angela C. Carmella, Symbolic Religious Expression on Public Property: Implications for the Integrity of Religious Associations, 38 Florida State University Law Review 481-535 (2011).
• Scott Ellis Ferrin, Rights, Religion, Regard, Contact: The Common School Ideal, A Nurturing, Safe and Effective Educational Environment for All Students, [Abstract], 2011 BYU Education & Law Journal 205-236.
• Ralph D. Mawdsley, Employment, Sexual Orientation, and Religious Beliefs: Do Religious Educational Institutions Have a Protected Right to Discriminate in the Selection and Discharge of Employees?, 2011 BYU Education & Law Journal 279-302.
• Mark Strasser, Parents, Religious Convictions, and Public School Curricula, 2011 BYU Education & Law Journal 547-569.
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations-- 2011 Revision, PLI Course Handbook for Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings (2011).

Army Settles Case; Allows Jewish Chaplain To Enlist and Keep Beard

Chabad.org reports that the U.S. Army has settled the lawsuit filed against it by Rabbi Menachem Stern who was not permitted to become a military chaplain because he refused for religious reasons to shave his beard. (See prior posting.) Stern claimed that the refusal to grant him an exemption from the grooming provisions violated his free exercise and equal protection rights. The Army has now relented and has approved him for a reserve commission. He will be sworn in on Friday and will head to chaplain school in January. JTA reports that the swearing-in will be streamed live by the Alef Institute.  Stern hopes to request active duty after he completes his chaplaincy training.  There is currently a shortage of Jewish chaplains in the military. Only 9 Army rabbis are on active duty, and there are only 37 Jewish chaplains in all the armed services, including the reserves.  Many Chabad rabbis would be willing to serve as chaplains if they could obtain an exemption that allows them to continue to wear a beard.  Stern's case may set a precedent for doing so.

Recent Prisoner Free Exercise Cases

In Hernandez v. United States, 2011 U.S. Dist. LEXIS 136298 (ND OH, Nov. 28, 2011), an Ohio federal district court rejected a federal inmate's complaints regarding provision of kosher meals to Jewish inmates, particularly during Passover in 2011.

In Washington v. Adams, 2011 U.S. Dist. LEXIS 136916 (ED CA, Nov. 28, 2011), a California federal magistrate judge recommended that an inmate who is a member of the Moorish Science Temple of America be permitted to move ahead with his complaint that his religion requires him to change his name to a Muslim name, but that his request to do so was denied by the warden.

In Santana v. Aviles, 2011 U.S. Dist. LEXIS 137319 (D NJ, Nov. 30, 2011), a New Jersey federal district court rejected an inmate's claim that as a pre-trial detainee his rights under the 1st Amendment and RLUIPA were violated when, during a 9-month unit lock-down, he was denied the right to attend church services.

In White v. Linderman, 2011 U.S. Dist. LEXIS 138375 (D AZ, Nov. 29, 2011), an Arizona federal district court permitted an inmate who believed in Messianic Judaism to move ahead with his claim that his rights under federal and state law were infringed when prison authorities refused to provide him with a kosher diet.

In Murray v. Corrections Corporation of America, 2011 U.S. Dist. LEXIS 138305 (D AZ, Nov. 28, 2011), an Arizona federal district court permitted a Seventh Day Adventist inmate to move ahead with his claims against a number of defendants in which he alleged he was denied a religious diet. However the court dismissed the food service company as a defendant because "a Bivens action is only available against federal officers, not private companies acting under color of federal law in operating a prison."

In Burford v. Troutt, (MD TN, Nov. 18, 2011), a Tennessee federal magistrate judge recommended dismissing a Muslim inmate's complaint that he was required to return to his cell when Christian services were being held in the commons area, that there were problems with holding Muslim study sessions, and he was not allowed to wear a kufi.

Delaware Catholic Orders and School Settle Sex Abuse Cases

The Wilmington (DE) News-Journal reported yesterday that 14 Delaware men have settled for $7 million their suits charging sex abuse as children by two employees of a Catholic school.  The plaintiffs were abused in the 1970's and '80s, nine of them by Capuchin Friar Paul L. Daleo, and five by former wrestling coach John J. Fleming, both of whom were employed by St. Edmond's Academy.  The settlement was with the Academy, the Capuchian friars, and Brothers of the Holy Cross who run the school. It also requires the release of names of any others at Capuchin institutions with proven, admitted or credible accusations of child sexual abuse. Claims against religious orders were not part of the Diocese of Wilmington's Chapter 11 bankruptcy reorganization plan approved earlier this year. (See prior posting.)

ACLU Charges FBI With Illegally Collecting Information On Political and Religious Beliefs

In a press release issued Thursday, the ACLU charged that the FBI has been using its community outreach programs-- including its mosque outreach program-- to gather information for intelligence purposes, in violation of the Privacy Act. 5 USC 552a(e)(7) bars federal agencies, with certain exceptions, from maintaining records that describe an individual's exercise of First Amendment rights. An ACLU memo describes and links to the full text of various documents it obtained through Freedom of Information Act requests that led it to conclude that the FBI is illegally collecting and storing information on Americans' political and religious beliefs.

Egyptian Elections Lead To Debate Among Islamists Over Role of Shariah

In the first round of Egyptian elections for the lower house of parliament held this week, two Islamic parties were the winners. As reported by CNN, the relatively moderate Muslim Brotherhood's Freedom and Justice Party took 40% of the vote, while the more fundamentalist Noor Salafi Movement took 20% of the vote. The New York Times today analyzes at length the internal debate this has caused. Here are some excerpts from the analysis:

[Salafist] Sheik Shahat ...  and his allies are demanding strict prohibitions against interest-bearing loans, alcohol and “fornication,” with traditional Islamic corporal punishment like stoning for adultery.

The unexpected electoral success of the Salafis ... is terrifying Egyptian liberals and troubling the West. But their new clout is also presenting a challenge to the Muslim Brotherhood, in part by plunging it into a polarizing Islamist-against-Islamist debate over the application of Islamic law in Egypt’s promised democracy.... 

The Brotherhood ... is at its core a middle-class missionary institution, led not by religious scholars but by doctors, lawyers and professionals.... [I]ts leaders have sought to avoid potentially divisive conversations about the details of Islamic law that might set off alarms about an Islamist takeover. But their evasiveness on the subject has played into long-term suspicions of even fellow Islamists that they are too concerned with their own power.

Open Policy On Courthouse Displays Results In Unusual Mix

In Leesburg, Virginia, the first of  9 or 10 holiday displays on the Louden County Court House grounds will go up this week end.  As reported last month by Leesburg Today, after an unsuccessful effort in 2009 to end all holiday displays in Courthouse Square-- which would have included a manger scene and a Christmas tree that usually were placed there-- the county settled on a first-come first-served policy for December displays.  The first 10 (now reduced to 9 because of concern about a tree in one location on the grounds), are a mixed bag. They include a creche, two displays from atheist groups, a display of a letter from Jesus, a Santa on a cross to decry the materialistic nature of the holiday, and two displays from members of the Church of the Flying Spaghetti Monster. [Thanks to Scott Mange for the lead.]

South Dakota High Court Says Clergy Abuse Case Barred By Statute of Limitations

In Iron Wing v. Catholic Diocese of Sioux Falls, (SD Sup. Ct., Nov. 30, 2011), the South Dakota Supreme Court held that a lawsuit filed in 2008 by a victim of clergy sexual abuse committed over 40 years earlier is barred by the statute of limitations.  Plaintiff claimed he was sexually abused by a nun and a priest at a boarding school he attended. SDCL 26-10-25 requires the suit to be brought "within three years of the act alleged to have caused the injury or condition, or three years of the time the victim discovered or reasonably should have discovered that the injury or condition was caused by the act, whichever period expires later." The court said:

“Inquiry notice is determined by an objective standard.” ...  Although Iron Wing perhaps subjectively could not “connect the full extent of his injuries to the sexual abuse, he was aware of enough facts to put him on inquiry notice.”... He knew he had been abused by two members of a religious order beginning when he was age ten and resuming at age thirteen, because of this abuse he was angry and harbored hatred against the church and its priests and nuns from the time he was in the eleventh grade, he left the school because of the abuse, and he never forgot the abuse. These circumstances were sufficient to “‘prompt[] a reasonably prudent person to seek out information regarding his injury or condition and its cause.’”

AP reports on the decision.

Rhode Island's "Holiday Tree" Provokes Criticism

Rhode Island Gov. Lincoln Chafee has generated controversy after a press release announcing a "holiday tree lighting" to be held in the Statehouse Rotunda on Dec. 6. AP reported this week that critics are upset he is not calling it a "Christmas tree." Last January, the Rhode Island House of Representatives passed a resolution (full text) providing:

That it is the policy of the state that state officials and departments refer to the tree customarily erected or displayed in celebration of the period from Thanksgiving of each year to January of the following year as a "Christmas tree" and not as a "holiday tree" or other non-traditional terms...

However Chafee says he is merely respecting the state's history of religious tolerance.  He added that lawmakers who are upset should instead focus their energy on feeding the hungry. A press release from Liberty Counsel yesterday reported that John Leyden, the owner of Big John Leyden Christmas Trees, who donated the tree that will be lit this year says he may now take it back.

Obama and Family Light New National Christmas Tree

AP reports that yesterday President Obama, along with his family, attended the lighting of the National Christmas Tree on the Ellipse. In his remarks (full text) before he and his family lit the tree, Obama said in part:

More than 2,000 years ago, a child was born to two faithful travelers who could find rest only in a stable, among the cattle and the sheep.  But this was not just any child.  Christ’s birth made the angels rejoice and attracted shepherds and kings from afar.  He was a manifestation of God’s love for us.  And He grew up to become a leader with a servant’s heart who taught us a message as simple as it is powerful:  that we should love God, and love our neighbor as ourselves.  

That teaching has come to encircle the globe.  It has endured for generations.  And today, it lies at the heart of my Christian faith and that of millions of Americans.  No matter who we are, or where we come from, or how we worship, it’s a message that can unite all of us on this holiday season.  

So long as the gifts and the parties are happening, it’s important for us to keep in mind the central message of this season, and keep Christ’s words not only in our thoughts, but also in our deeds.

While this is the 89th year for the lighting ceremony, this year the ceremony took place using a tree that was newly planted in March after strong winds in February toppled the previous tree that had been used since 1978.

Court Rebuffs New Claims By Officer Disciplined For Refusing To Attend Event At Mosque

In Fields v. City of Tulsa, 2011 U.S. Dist. LEXIS 136522 (ND OK, Nov. 28, 2011), an Oklahoma federal district court rejected an attempt by a Tulsa police officer to file a second amended complaint in his suit against the Tulsa Police Department.  Officer Paul Fields was disciplined by the Department when he refused to attend, and refused to require officers under his command to attend, a "Law Enforcement Appreciation Day" hosted by the Islamic Society of Tulsa at a local mosque. Fields wanted to add a 1st Amendment speech claim and a claim under the Oklahoma Religious Freedom Act. In rejecting Fields' religious freedom arguments, the court said:

Fields argues his religious beliefs were substantially burdened because the defendants punished him for refusing "to engage in conduct that was contrary to his religious beliefs (i.e., attending the place of worship of another religion and being subjected to proselytizing by that religion)."... However, nothing in Fields' proposed Second Amended Complaint suggests that Defendants' actions in any way inhibited or curtailed Fields from practicing his religion.... Although Fields alleges that officers who attended the event were subjected to proselytizing, nowhere does he allege that such presentations were mandatory or that any such presentations would have inhibited or curtailed Fields from practicing his sincerely held religious beliefs....

(See prior related posting.) Yesterday's Tulsa World has more background on the decision.

ABA Names Religion Clause Among Top 100

I am pleased to announce that the editors of the ABA Journal today announced they have selected Religion Clause as one of the top 100 legal blogs. This is the 4th time in 5 years that Religion Clause has been on this list.  The 100 blogs are in 12 categories, and the ABA is now asking readers to vote for their favorite blog in each category.  Religion Clause is one of 14 blogs in the "Niche" category.  If you are a fan of Religion Clause, I hope you will vote for it here.  The ABA website will ask you to register before voting to prevent "ballot box stuffing." Voting ends Dec. 30.

"Tebowing" By Marines-- Church-State Issue or Silliness?

Occasionally the line between "silliness" and a true church-state issue is blurred.  Here is the latest example.  Last month, Yahoo! Sports explained a new fad known as "Tebowing," inspired by now-Denver Broncos quarterback Tim Tebow who is known for his displays of his Christian religious faith. According to an NFL posting, Tebowing is:

the practice of posing on bended knee as if deep in prayer, which spread across the Internet with amazing speed after [Tebow] was photographed in such a pose during a comeback win at Miami.

Tebow's reaction to the craze:  "Someone told me the greatest form of flattery is impersonating somebody." A Tebowing website is filled with photos of the practice.

The latest question arises, however because the Military Times last week published a photo of a dozen marines in formation in uniform on the football field performing "their version of 'Tebowing' before the Broncos-Jets game on Nov. 17."  It is not clear from the photo why they are there. The Military Times also explains Tebowing: "The trend pokes fun at Tebow's penchant for dropping to a knee in prayer, with his elbow on his knee and his fist under his bowed head." So the question is how to regard this display of Marines in uniform.  There is potentially a church-state issue if the Marines are there in some official capacity-- endorsing or, on the other hand, mocking, Tebow's religious beliefs.  Or maybe it is just silliness to which we should apply the legal maxim "de minimis non curat lex"-- the law does not concern itself with trifles. God and Country blog yesterday also  commented on the photo of the Marines.

German Court Says School Can Stop Student From Praying To Preserve Order

Germany's Federal Administrative court yesterday ruled that while a student's right to pray at school is constitutionally protected, a school may ban a student from praying when it disrupts the school's operations.  The Local and Al Jazeera both report on the decision that involved a Muslim student who, with several others, laid down his jacket in the school hallway between classes and prayed. The school's principal objected, in part because severe conflicts had already broken out among Muslim students over interpretation of the Qur'an.

Catholic University Cleared In Challenge To Same-Sex Dorms

In a press release yesterday, Catholic University announced that the D.C. Office of Human Rights has dismissed the complaint filed by George Washington University law professor John Banzhaf challenging as discriminatory Catholic University's elimination of mixed-gender dormitories on campus. The 16-page opinion in In re Banzhaf v. Garvey, (DC OHR, Nov. 29, 2011), reviews at length the arguments by both sides. Among the University's claims was that "co-ed dorms contribute to an atmosphere that is incompatible with the university's religious mission," and that its decision is protected by the Religious Freedom Restoration Act. Prof. Banzhaf disagreed arguing that the University's moral and ethical concerns are secular ones, not basic religious tenets.  In upholding the University's policy, the OHR held broadly that:

the DCHRA does not forbid colleges and universities from making sex-based distinctions between students. We agree that to follow Complainant's reasoning would include a prohibition on same-sex bathrooms, locker rooms, and sports teams, which would lead to absurd results.

Former Employee Sues Na'amat For Religious Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed Tuesday by Marshall Garvin against his former employer, Na'amat USA (a Jewish social service agency) and his supervisor there, Susan Schwartz. Garvin says he was fired immediately after he complained to Na'amat's president about his treatment by Schwartz in connection with his leaving work in order to say Kaddish for his mother who died in January. Observant Jews say the Kaddish prayer 3 times each day for 11 months at religious services after a parent dies. Garvin says that Schwartz phoned several local synagogues and told him which ones he could attend, harassed him about where he was, and kept him from attending services around 15 times. Na'amat says Garvin was laid off in a reduction of force. Apparently Garvin in the past won two settlements in religious discrimination cases against the U.S. Postal Service, where he worked for over 30 years.

Federal Election Commission Releases Enforcement Files On Catholic Group's Robocalls

BNA's Daily Report for Executives [subscription required] reports that on Nov. 25, the Federal Election Commission released documents in an enforcement case against Informed Catholic Citizens (ICC), a 501(c)(4) non-profit organization.  The  case grew out of a complaint (full text) filed in 2008 by the Freedom From Religion Foundation. At issue were robocalls featuring a Catholic priest supporting John McCain over Barack Obama in the Presidential election because of their respective positions on abortion.  In January 2011, the FEC voted unanimously that the call involved express advocacy and there was reason to believe that ICC had violated the Federal Election Campaign Act by failing to report an independent expenditure and failing to include a disclaimer stating that ICC had paid for the call. (FEC Certification). A General Counsel's Report concluded, however, that because of the low dollar amount at issue, no further action should be taken.  A vote of the FEC in October split 3-3 on that recommendation. Instead the Commission voted 5-0 to send ICC a letter of caution and close the file. However on Oct. 21, the 3 Democratic members of the Commission released a Statement of Reasons why they preferred to seek a statutory penalty of $7500 against ICC. They contended that "while the call may have been relatively inexpensive, it appears to have reached almost 70,000 recipients."

New York Trial Court Lets Open Meeting Challenge To Same-Sex Marriage Law Continue

In New Yorkers for Constitutional Freedom v. New York State Senate, (NY Sup. Ct. Livingston Co., Nov. 18, 2011), a New York trial court refused to dismiss a challenge to the procedures used by the New York legislature in enacting the Marriage Equality Act that legalizes same-sex marriage.  The court held that the complaint presents a justiciable issue as to whether the Senate violated New York's Open Meetings Law when the governor held a meeting with all the Republican members of the Senate to attempt to convince them to break their party's opposition to the bill and vote for it. The court dismissed a challenge to the governor's certification that waived the requirement that a bill be presented to legislators at least three days before a vote, even though, in the court's view the governor's statement of necessity for a more rapid vote was "logically and clearly ... disingenuous." LIberty Counsel issued a release calling the decision "a victory for the people of New York and a setback to the political arm-twisters who tried to thwart the open meetings process." (See prior related posting.)

Dissident Hasidic Faction Loses Establishment Clause Challenge To Town's Government

In Kiryas Joel Alliance v. Village of Kiryas Joel, (SD NY, Nov. 28, 2011), a New York federal district court dismissed a series of claims brought by a dissident faction within the Village of Kiryas Joel (NY), an Orthodox Jewish Hasidic enclave.  The court describes the claims as follows:

Plaintiffs ... bring this action alleging that the Village is a "theocracy," the affairs of which are so "inherently infused by, and entangled, with religion" that its "very existence" violates the Establishment Clause....

Behind the suit is a long-standing and much-litigated dispute between two factions of the Satmar Hasidim over which faction's rabbi should be the leader of the community. The dominant faction that controls the main synagogue (Congregation Yetev) and which holds political offices in the community is led by Grand Rebbe Aron Teitelbaum. (See prior related posting.)  Plaintiffs argue that the Establishment Clause has been violated because:

the Mayor of the Village holds a leadership position in Congregation Yetev, and ... his "dual religious and governmental roles" operate to establish an official faith becuase his religious beliefs trump his governmental role with respect to his actions as Mayor...; [and] all the other Village officials are members of Congregation Yetev, and therefore are controlled by the Grand Rebbe's dictates....

The court held, however that:

the Supreme Court held in McDaniel v. Paty ... that the Establishment Clause does not bar an individual from holding public office simply because he is a member of the Clergy.

The court also rejected on various pleading and procedural grounds-- including res judicata and standing-- several claims by plaintiffs alleging zoning and other actions by defendants that discriminate against the dissidents and their synagogue. However one claim rejected on standing grounds was dismissed without prejudice so it could be refiled with adequate allegations. That was a claim that the town's Community Room Law that requires builders to include a community room in residential developments violates the Establishment Clause because all but one of the community rooms is used as a synagogue.

The Hudson Valley Times Herald-Record and the Mid-Hudson News both report on the decision. [Thanks to Failed Messiah for the link to the decision.]

Azerbaijan Government Agency Busy Examining Religious Literature

According to a report by News.Az yesterday, one of the main roles of Azerbaijan's State Committee for Work with Religious Organizations is the review of religious literature and texts that religious groups wish to distribute in the country. In 2010, the Committee reviewed 18.052 items and found 348 inappropriate for distribution.  In the first 9 months of this year, the Committee reviewed 15,051 items and found 47 inappropriate for distribution.

Michigan Legislature Passes Anti-Bullying Law, Dropping Religious Exemption

Michigan's state Senate yesterday passed the House version of "Matt's Safe School Law," an anti-bullying bill. (Full text of HB 4163). As reported by the Huffington Post, in doing so the Senate gave up on a much more controversial version it had passed earlier which exempted from coverage statements of sincerely held beliefs or moral convictions. That version was strongly criticized by those claiming it would create a religious exemption for bullying of gay and lesbian students. (See prior posting.) HB 4163 contains no similar exception, and requires public schools to adopt anti-bullying policies that prohibit bullying "without regard to its subject matter or motivating animus."

Courts Drawn Into Dispute Over Recall Petitions Circulated By Churches

Earlier this month, an El Paso, Texas church and its pastor filed a federal lawsuit challenging on 1st and 14th Amendment grounds the city's enforcement against churches of a provision of the Texas Election Code that bans corporations from circulating petitions to call an election. (TX Election Code Sec. 253.094). The complaint (full text) in Hoyt v. City of El Paso, Texas, (WD TX, filed 11/17/2011), was filed after the city invoked the state law provision to attempt to stop churches from circulating recall petitions aimed at the city's mayor and two city council members for their votes to restore health benefits to same-sex and unmarried domestic partners of city employees. (See prior posting.) Alliance Defense Fund announced the filing of the lawsuit. Meanwhile, according to KTSM News and an ADF release, Monday in a state court lawsuit brought by the mayor against Tom Brown Ministries, Word of Life Church of El Paso, El Pasoans for Traditional Family Values, and other local residents, the judge refused to issue a preliminary injunction to stop the recall election. The mayor argued that signatures collected in churches on the recall petitions were invalid.

USCIRF Urges Clinton To Press Burma On Religious Freedom During Trip There

As reported by Voice of America, Secretary of State Hillary Rodham Clinton left yesterday for a trip to Asia that includes the first visit in over 50 years of a U.S. Secretary of State to Burma. (Background form State Dept.) The trip comes in response to progress in Burma on political reform and human rights issues. Also yesterday, the U.S. Commission on International Religious Freedom released a letter (full text) it sent to Clinton urging her to publicly raise concerns about religious freedom while in Burma, saying:

Religion drives serious human rights abuses in Burma, particularly against ethnic minorities and Buddhist monks who participated in peaceful protests in 2007. We believe improvements in religious freedom should be a critical benchmark for gauging the government of Burma’s commitment to genuine reform.

Burma has been listed by the State Department since 1999 as a "country of particular concern" because of its religious freedom violations. (See prior posting.)

Suit Challenging 10 Commandments In School May Proceed

The Roanoke Times reports that yesterday a Virginia federal district judge refused to dismiss a lawsuit challenging the posting of the Ten Commandments as part of a display in the Giles County, Virginia Public Schools. (See prior posting.) The court said there are too many unknown facts to dismiss the complaint in Doe 1 v. School Board of Giles County at this point. The court also gave the parties 14 days to work out a protective order to protect the identity of the two John Doe plaintiffs-- a student and the student's parent. (See prior posting.)

UPDATE: On Dec. 12, Judge Michael Urbanski signed a protective order to keep the plaintiffs in the case anonymous. According to the Roanoke Times, attorneys for the school board will learn the names of plaintiffs so they can determine issues such as whether the student has standing. However members of the school board will not learn the identity of plaintiffs. The order also bans any harassment, threats or intimidation of plaintiffs. [Thanks to Scott Mange for the lead.]

Security Company Settles Religious Accommodation Suit Brought By EEOC

The EEOC announced last week that the Philadelphia-based Imperial Security, Inc. has agreed to settle a lawsuit bought against it by the EEOC on behalf of a Muslim woman who was employed as a security guard, but was then told she could not wear her khimar (scarf that covers her head, neck and ears). The employee, Julie Holloway-Russell, objected and was fired. Under the settlement, Imperial Security will pay $50,000 in damages. It also agreed to a 3-year consent decree barring religious discrimination, setting up internal procedures to handle discrimination complaints, appointing an EEO officer, requiring employee training on Title VII and reporting to the EEOC on how complaints are handled.

Assistant Principal Sues Over Principal's Religious E-Mails

In Clay County, Florida, the assistant principal in a public school earlier this month filed a federal lawsuit against the school's principal and the Clay County School Board complaining about religious (as well as political) e-mails sent to faculty by the principal using the principal's school e-mail account. The complaint (full text) in Capriola v. Clay County School District, (MD FL, filed 11/18/2011), pointed to ten separate e-mails with religious or proselytizing messages.  The lawsuit seeks a declaratory judgment that the e-mails violated the free exercise and establishment clauses and seeks an injunction against further similar e-mails. The Jacksonville Times-Union reports on the case.

Recent Articles of Interest

From SSRN:

• Steven D. Jamar, Challenges Presented to Law and Public Norms by Claims of Freedom of Religion Arising in Increasingly Diverse Societies, (Journal of Law and Religion, Vol. 26, No. 595, 2011).
• W. Bradley Wendel, Lawyering in the Christian Colony: Some Hauerwasian Themes, Reflections, and Questions, (Law and Contemporary Problems, Forthcoming).
• Michael J. Glennon, Pre-Empting Proliferation: International Law, Morality, and Nuclear Weapons, (European Journal of International Law, Forthcoming).
• Ajit Singh, Dictating Selective Tolerance or Silence in the Face of Ignorance: S.L. v. Commission Scolaire Des Chênes, (May 26, 2011).
• Sahar F. Aziz, Terror(izing) the Muslim Veil, (The Rule of Law and the Rule of God, Simeon Elsanmi, ed., University of Virginia Press, Spring 2012).
• Neo Joe Thomas, John Locke and Natural Rights in a State of Nature, (November 25, 2011).
• Vikram D. Amar and Alan E. Brownstein, Afterthoughts on Snyder v. Phelps, (Cardozo Law Review de novo, p. 43, 2011).

From SSRN-- Islamic Law:

• Munir Ahmad Mughal, Law of Sales in Islam, (November 19, 2011).
• Nor Fadzlina Nawi, Developing a Mandatory Family Mediation Program in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia, (Conference Booklet - Sydney University Postgraduate Law Conference, 2011).
• Ousama Abdulrahman Anam, Users of Corporate Reporting of Information: An Islamic Perspective, (January 1, 2011).
• Jean Allain, Acculturation Through the Middle Ages: The Islamic Law of Nations and its Place in the History of International Law, (October 10, 2011).
• Muhammad Akbar Khan, Consumer Protection and the Islamic Law of Contract, (Islamabad Law Review, Vol. 2, No. 2).
• Nor Fadzlina Nawi, Family Mediation in Malaysian Muslim Society: Some Lessons for the Civil Family Law in Malaysia, (Conference Booklet - East Asian Law and Society Conference, 2011).

From SmartCILP and elsewhere:

• Daniel R. Suhr, The Religious Liberty of Judges, 20 William & Mary Bill of Rights Journal 179 (2011).
• Douglas Laycock, Government-Sponsored religious Displays: Transparent Rationalizations and Expedient Post-Modernism, 61 Case Western Reserve Law Review 1211-1252 (2011).

Christian Worker At Heathrow Sues Over Treatment By Muslim Co-Workers

The London Telegraph and London Mail yesterday both reported on a lawsuit brought by a saleswoman-- a Lebanese born Christian-- who worked at Britain's Heathrow Airport World Duty Free shop. She was fired after Muslim co-workers filed a complaint against her. They thought they heard her insult a Muslim co-worker by saying he was a member of the Alawi sect.  The woman, Nohad Halawi says that she called the co-worker "allawhi"-- "a man of God" in Arabic.  Halawi, says that far from insulting Muslims, she has been the victim, having been subjected to bullying by Muslim co-workers.  She says one employee brought a Qur'an to work and insisted she read it, and another handed out Islamic leaflets.  A Christian co-worker of hers was driven to tears after a Muslim bullied her for wearing a cross. Halawi says that there is a growing atmosphere of fear among Christian employees at Heathrow as the number of employees who embrace fundamentalist Islam grows. Halawi says: "This is supposed to be a Christian country, but the law seems to be on the side of the Muslims."  Halawi's situation is complicated by the fact that she works on a freelance basis, placed by a cosmetic staff agency.  Since she is not an employee of World Duty Free, the religious anti-discrimination protections in Britain's employment law do not apply to her. Meanwhile elsewhere at Heathrow, a Jewish businessman is threatening to sue because of his treatment by Muslim security staff at the airport. He says they have repeatedly singled him out for full body scans.

Church Sued For Not Reporting Abuse By Preacher

The Charleston (SC) Post and Courier reported last week that a lawsuit has been filed against the North Charleston (SC) Full Word Ministries on behalf of a plaintiff identified only as Joshua Doe, charging that a church official knew that its former pastor, Tyrone Moore, was sexually abusing plaintiff and failed to report it to authorities. In 2009, Moore (a charismatic preacher) was sentenced to 30 years in prison for molesting or assaulting 8 young boys at his home or in his church over a several year period. Twenty years earlier he had plead guilty to sexually abusing girls at his grandfather's church.

Moderate Islamists Win In Morocco; Promise No Religious State

As reported by Voice of America, the moderate Islamist Justice and Development Party (PJD) has apparently won the largest number of Parliamentary seats in Fridays elections in Morocco. Taking about one-fifth of the seats, it will be charged with forming a new government. The current prime minister's Istiqlal Party came in second and is ready to enter into coalition talks with the PJD. In an interview by Al Aribiya, Justice and Development Party leader Abdel Ilah Bin Kiran said that the party would not turn the country into a religious state:

[W]e are going to rule as a political and not a religious party. Religion belongs to mosques and we are not going to interfere in people’s personal lives..... If we want to fail we will impose the veil. We will not interfere in people’s choices and not one woman will be forced to wear the veil if we want to succeed.... The religious state has been gone a long time ago and will never come back.

Recent Prisoner Free Exercise Cases

In Neal v. Campbell, (9th Cir., Nov. 23, 2011), the 9th Circuit upheld a California district court's finding of qualified immunity based on the failure to show a substantial burden on the practice of religion in a case brought by an inmate who complained that he was placed in administrative segregation for becoming an "ameer" (a Muslim leader) at the prison. (See prior posting.)

In Kailey v. Zavaras, 2011 U.S. Dist. LEXIS 133277 (D CO, Nov. 17, 2011), a Colorado federal district court dismissed various free exercise (as well as a number of other) claims, partly on statute of limitations grounds and partly on the merits. Plaintiff claimed certain of his magazines had been destroyed, that he was prevented from obtaining emergency outreach community relief for his daughter, was strip searched after attending a Jewish service, was prevented from participating in a "Kairas" four-day weekend event as an "inside team member," and was prevented from attending Passover services.

In  Whitehouse v. Johnson, 2011 U.S. Dist. LEXIS 133822 (ED VA, Nov. 18, 2011), a Virginia federal district court dismissed a claim by by an inmate that his rights under RLUIPA and the 1st Amendment were infringed when a correctional center to which he was transferred interfered with his ability to complete his correspondence coursework from a Protestant theological seminary in which he was enrolled.

In Abel v. Martel, 2011 U.S. Dist. LEXIS 133713 (ED CA, Nov. 18, 2011), a California federal magistrate judge allowed an inmate to proceed with claims that he was not allow to purchase for personal use certain items used for Wiccan religious worship, but instead was limited under prison policy to using these for group worship. Plaintiff was also permitted to move ahead with a claim that various religious items were confiscated from his cell in retaliation for his filing a complaint. Plaintiff failed to exhaust his administrative remedies as to other claims.

In Ouahman v. Hillsborough County Department of Corrections, 2011 U.S. Dist. LEXIS 133751 (D NH, Nov. 16, 2011), a New Hampshire federal district court approved two separate magistrate's opinions (2011 U.S. Dist. LEXIS 133756, Aug. 29, 2011 and 2011 U.S. Dist. LEXIS 134060, Oct. 25, 2011) and permitted an inmate to proceed on RLUIPA and First Amendment claims that correctional officers denied him a prayer rug and a Qur'an, denied accommodations for observing Ramadan, and discriminatorily placed him in unnecessarily restrictive housing conditions.

In Runnels v. Banks, 2011 U.S. Dist. LEXIS 133892 (D MS, Nov. 18, 2011), a Mississippi federal magistrate judge permitted a Rastafarian inmate to move ahead with his claim for nominal and punitive damages for burdening his practice his religion while incarcerated. His claims for injunctive relief were found to be moot.

In Chance v. TDCJ, 2011 U.S. Dist. LEXIS 132664 (ED TX, Nov. 17, 2011), a Texas federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 133972, Oct. 13, 2011) and denied a preliminary injunction to a Native American inmate who sought to have weekly religious ceremonies that include sacred pipe ceremonies and smudging and wished to carry a lock of his parents' hair in a pouch.

In Wakefield v. Indermill, 2011 U.S. Dist. LEXIS 134795 (ED CA, Nov. 21, 2011), a California federal magistrate judge recommended dismissing a Seventh Day Adventist inmate's complaints under the 1st Amendment and RLUIPA that the Protestant chaplain did not provide him with weekly Communion and foot washing.

In Groves v. Gusman, 2011 U.S. Dist. LEXIS 134869 (ED LA, Nov. 21, 2011), a Louisiana federal district court adopted a magistrate's recommendation (2011 U.S. Dist. LEXIS 134883, Oct. 17, 2011), and dismissed for failure to prosecute the case an inmate's claim that he was unable to practice his Santeria religion.

300 In Maldives Protest UN Human Rights Commissioner's Speech

AP reported that yesterday in the Maldives, 300 people demonstrated against UN High Commissioner for Human Rights Navi Pillay who had just concluded a visit to the country. The protesters, claiming that the United Nations is spreading anti-Islamic activities in the Maldives, objected to Pillay's speech before Parliament in which she said that the flogging of women found to have had sex outside marriage is "inhuman and degrading."  Protesters also criticized Maldives officials for allowing Pillay to speak in Parliament.

UPDATE: Minivan News (11/27) reports on additional criticism of Pillay by various political and religious leaders in the Maldives.

Court Quashes Rabbi's Subpoenas Seeking Identity Of Anonymous Bloggers

In 2008, a New York appeals court in Tendler v. Bais Knesses of New Hempstead, Inc.,  held that Rabbi Mordechai Tendler was entitled to recover damages against the synagogue that fired him in violation of a contract clause that provided he could not be terminated unless the action was authorized by a Rabbinical court. His synagogue's action came after several women alleged he had abused his position to have sex with them.  As outlined in a Memorandum of Law in the case, for several years, Tendler has been attempting to obtain the identities of four bloggers who have commented about the charges against him, claiming that the charges were false and in retaliation for his speaking out on feminist issues. Most recently Tendler has served subpoenas on the anonymous bloggers' counsel again seeking their identity arguing that this information is relevant to determination of damages by the trial court.  In a Nov. 16 decision in the case (full text), the court quashed the subpoenas. The court held that since Tendler had already prevailed on the issue of liability, to permit disclosure of non-parties who have a right to anonymous speech would "open the floodgates and set a precedent that this Court is unwilling to do." Public Citizen Consumer Law & Policy Blog last week reported on these developments.

Court Says It May Decide Pastor's Employment Dispute With Church

In Errgong-Weider v. United Congregational Church of Norwalk, 2011 Conn. Super. LEXIS 2765 (CT Super., Oct. 25, 2011), a Connecticut trial court refused to dismiss a lawsuit by a pastor against his church challenging the termination of his contract by a vote of members at a meeting. It held:

The issues raised by the plaintiff's complaint include: (1) whether the vote terminating his contract was taken at a meeting duly warned to consider that issue; (2) whether the motion to terminate his contract was properly seconded ...; and (3) whether barring him from attendance at the meeting ... violated his rights as a member of the defendant non-stock corporation.... [R]esolution of these issues would not require the court to intrude upon the defendant's exclusive right to decide matters pertaining to doctrine or its internal governance or organization. Resolution of these issues involve questions of corporation law and the application of Robert's Rules of Order, not the application of religious doctrine or matters of governance outside the jurisdiction of the court. Under the neutral-principles approach ..., the court may analyze the defendant's bylaws and constitution in resolving the dispute.

Restriction on Sex Offender Infringes Free Exercise Rights

In United States v. Lantz, (6th Cir., Nov. 22, 2011), the 6th Circuit vacated, in part on religious freedom grounds, one of the special terms of supervised release  imposed on defendant who plead guilty to distributing child pornography. The terms would take effect after the defendant completed a 15-year prison sentence.  At issue was the requirement that "Defendant shall neither possess nor have under his control any matter that is pornographic or that depicts or alludes to sexual activity..." The court concluded:

A restriction on material that "depicts . . . sexual activity" alone might not be overly broad. But one that bans mere allusion to sexual activity is certainly overly broad. Not only would such a ban prohibit the defendant from reading significant parts of the Old Testament—Proverbs 7, The Song of Solomon, and II Samuel 11 come immediately to mind—it would encompass an enormous swath of literature, music, and other media.... Given the mass of literature and other media such a condition would encompass, the error was clear and obvious; it affects substantial First Amendment rights to receive information ... and to freely exercise religion.

School Prior Approval Policy For Handouts Upheld Over Objections of Religious Group

In Taylor v. Roswell Independent School District, (D NM, Nov. 23, 2011), a New Mexico federal magistrate judge dismissed 1st Amendment and equal protection claims brought by high school students who were members of a religious group, Relentless in Roswell. The students sued after they were stopped from distributing rubber fetus figurines with a passage from Psalms and contact information for a pregnancy resource center attached to them. School officials took the action because a previous similar distribution caused substantial disruption. The court upheld a school policy requiring prior approval for students to distribute non-school related material on school grounds, even though members of Relentless in Roswell had a history of handing out many  kinds of items-- including candy canes, wrist bands and Easter eggs, many with religious messages attached-- generally without seeking school permission.  None of these however created disruption in the schools. (See prior related posting.)

FFRF Says Sheriff's Ad Violates Establishment Clause

On Tuesday, the Freedom from Religion Foundation announced that it had sent a letter (full text) to the Onslow County, North Carolina Board of Commissioners complaining about an ad that the county sheriff placed in a local newspaper. The ad, in the form of a letter from the sheriff to "All Decent and Respectable Citizens...", says in part: "Our society in in a big mess today because good, decent and respectful citizens have ignored the Truth of God, good common sense, and a decent standard because of an opinion given by someone with a doctrinal degree who has no wisdom.... Remember, there are no loop holes or places for opinion in the Law of God, The Ten Commandments." The Jacksonville (NC) Daily News reported yesterday that Sheriff Ed Brown says he paid for the ad from his personal funds, as he has done for dozens of other ads over the past 21 years. FFRF says that the letter -- which includes the sheriff's official badge and seal-- is clearly intended to carry the weight and authority of the Sheriff's Office and thus violates the Establishment Clause.

Some Defendants Dismissed From Suit On Hosting Religious Services At Homeless Shelter

In Caractor v. City of New York Department of Homeless Services, 2011 U.S. Dist. LEXIS 134623 (SD NY, Nov. 22, 2011), plaintiff, a bishop in the Discovered Being Ministry, sought to hold religious services at a housing facility for the homeless shortly after he and his family received shelter there. The Department of Homeless Services denied his request and he sued. The court now granted motions of certain of the defendants to dismiss them because they were not personally involved in any of the alleged violations of plaintiff's free exercise or free speech rights.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Allen v. Holmes, (FL Cir. Ct., Nov. 22, 2011), a Florida trial court, invoking the ecclesiastical abstention doctrine, dismissed claims of defamation and intentional infliction of emotional distress brought by plaintiff against her pastor.  Plaintiff claimed that defendant made defamatory statements about her as part of an effort to oust her from the church. The court concluded that the case turns on a determination of whether the statements were lies or instead were a response to disruptive behavior by plaintiff that was inconsistent with church doctrine. Thus resolution of the case would involve an inquiry into church governance and the conduct expected of church members-- matters which the ecclesiastical abstention doctrine preclude the court from considering. [Thanks to Russell  Buchanan for the lead.] 

Memorial Cross At Camp Pendleton Raises Objections

The Los Angeles Times last Monday reported on the latest controversy over religious symbols on public property-- this time a 13-foot cross erected by Marines at Camp Pendleton. The cross was put up on Veterans Day to honor four marines killed in combat in Iraq, as well as a more general memorial. Three of the four Marines were part of a group that had erected a cross on the same location in 2003 before deploying to Iraq. That earlier cross was destroyed in a brush fire in 2007.  The Military Association of Atheists and Freethinkers has protested the cross. The American Center for Law and Justice has sent a letter to the Marines defending the constitutionality of the cross as a historical and universal symbol of remembrance.  The Marine corps says that it is reviewing the issue, and that the cross was erected by private individuals acting solely in their personal capacities. [Thanks to Scott Mange for the lead.]

7 Amish Charged With Federal Hate Crimes In Forced Beard Cuttings

The Cleveland Plain Dealer reports that authorities yesterday arrested Samuel Mullet, Sr., the Bishop of a break-away Amish group, known as the Bergholz clan, as well as three of his sons and three other followers, on charges of forcibly cutting the beards of 4 Amish men who were members of a different Amish community.  The FBI Affidavit in support of a criminal complaint (full text) says that Mullet controlled all aspects of his followers lives, forced extreme punishments on them and cleansed married women in the clan of the devil by sexual intimacy with them. After 8 families moved away from the Bergholz community in 2005 because of religious disagreements, Mullet excommunicated them. However a special committee of bishops from other communities determined that Mullet's excommunications were invalid. The 4 victims of the beard cuttings were involved with the bishop's committee, or aided break-away families, or, in one case, was one of the excommunicated members (and the father of one of those charged in the case). (See prior related posting.)

The Affidavit seeks a criminal complaint charging the 7 defendants with conspiracy to violate the federal Hate Crimes Prevention Act (18 USC Sec. 249). The federal Hate Crimes statute permits federal prosecution only if the crime involves one or more specified links to interstate commerce. One of those links is that the defendant employed a dangerous weapon that has traveled in interstate commerce. The FBI affidavit states that the attacks were carried out with "hair clippers and 8" scissors manufactured in the state of New York."

President Issues Thanksgiving Proclamation

Last week, President Obama issued a Presidential Proclamation (full text) declaring today a National Holiday of Thanksgiving. The Proclamation says in part:

When President George Washington proclaimed our country's first Thanksgiving, he praised a generous and knowing God for shepherding our young Republic through its uncertain beginnings..... In times of adversity and times of plenty, we have lifted our hearts by giving humble thanks for the blessings we have received and for those who bring meaning to our lives.  Today, let us offer gratitude to our men and women in uniform for their many sacrifices, and keep in our thoughts the families who save an empty seat at the table for a loved one stationed in harm's way.  And as members of our American family make do with less, let us rededicate ourselves to our friends and fellow citizens in need of a helping hand.

Trial Court Upholds Most of Canada's Anti-Polygamy Law

In Canada, the Supreme Court of British Columbia (the province's superior trial court) today upheld most of Canada's anti-polygamy law (Sec. 293 of Criminal Code of Canada) against challenges to it brought under the Canadian Charter of Rights and Freedoms. The suit was brought as a reference case by the province's attorney general after unsuccessful attempts to prosecute leaders of two FLDS factions. (See prior posting.)

In today's decision, Reference re: Section 293 of the Criminal Code of Canada, (B.C. Sup. Ct., Nov. 23, 2011), Chief Justice Bauman concluded that Section 293, while generally valid, is overbroad with respect to its application to children between the ages of 12 and 17. To this extent, it violates Sec. 7 of the Charter which provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."

The court also found that the statute violates the religious liberty of fundamentalist Mormons, some Muslims and Wiccans-- as protected by Sec. 2 of the Charter-- but that this infringement is justified by Sec. 1 of the Charter that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The court rejected arguments that the anti-polygamy law violates various other provisions of the Charter, such as protections of expression and assurances of equal protection. The opinion-- which runs 1367 numbered paragraphs in length-- includes an extensive survey of the history of polygamy and the alleged harms caused by the practice.

CBC News reports on the decision.

UPDATE: The National Post on Wednesday quotes a lawyer for the FLDS community as saying that Chief Justice Bauman's decision suggests a route for circumventing the polygamy statute. The decision finds that the statute only covers relationships entered into with some sanctioning event, and not mere common law marriage.

Archdiocese To Ask Bankruptcy Court For Approval of Therapy Fund

As previously reported, the Catholic Archdiocese of Milwaukee (WI) filed for Chapter 11 bankruptcy reorganization last January. This week the Milwaukee Journal-Sentinel reported that the Archdiocese will ask the bankruptcy court for permission to create a $300,000 fund to be used for counseling and therapy for sex-abuse victims whose claims are disallowed because the statute of limitations has run, because the abuser was not employed by the diocese or the victim has already reached a settlement with the Archdiocese (Archbishop's letter announcing the plan.) Jim Stang, the attorney for the creditors committee, says he fears this is a prelude to the Archdiocese beginning to file objections to claims.  One of the contested issues is whether the Archdiocese is responsible for claims involving priests who belong to religious orders, but needed the Archbishop's approval to operate in the Archdiocese.

Court Upholds Denial of Use Permit To Virginia Church

In Calvary Christian Center v. City of Fredericksburg, Virginia, 2011 U.S. Dist. LEXIS 134290 (ED VA, Nov. 21, 2011), a Virginia federal district court upheld the city of Fredericksburg's denial of a special use permit to Calvary Christian Center that wanted to lease space in its church to the operator of a private day school for disabled children. Rejecting plaintiff's free exercise and RLUIPA claims, the court said that "Calvary has not pled any facts demonstrating that the operation of the day school by a third party is a religious exercise." The court also rejected plaintiff's free speech claims, as well as its overbreadth and vagueness assertions. The Fredericsburg Free Lance-Star reports on the decision.

Roy Moore To Run Again For Alabama Chief Justice

Sunshine State News today reports that former Alabama Supreme Court Chief Justice Roy Moore yesterday announced that he would enter the March Republican primary to run again for the Alabama chief justice position. At least two other Republicans are also seeking the position. Moore became well know because of his unsuccessful battle, beginning in 2001, to keep a large Ten Commandments monument in the lobby of the Alabama State Judicial Building. Moore's announcement ends speculation that he would run for the Presidency next year. Moore says he will continue to defend religion in the public square, but will not bring back the Ten Commandment monument, which now is housed at a church in Gasden, Alabama. (See prior posting.)

Maldives Government Shuts Down Sufi Blog

According to Reporters Without Borders, last Saturday the Communications Authority of the Maldives, on the orders of the Islamic affairs ministry, shut down the blog of Ismail Khilath “Hilath” Rasheed because it contained anti-Islamic material. Rasheed is a Sufi, while most Maldivians are Sunni Muslims. Rasheed plans to go to court-- only a court order can permit him to reopen his blog.  Rasheed says this is the beginning of a crackdown by conservatives in control of the Islamic affairs ministry.

Suit Seeks Right To Preach At "Tour of Lights" Event

Yesterday's Duluth (MN) News Tribune and the Minneapolis Star Tribune, report that two locally well-known street preachers have filed suit in federal district court to obtain the right to preach at the Bentleyville Tour of Lights held in Duluth's Bayfront Festival Park. The event attracts 150,000 people annually, and the city furnishes trash and snow removal, lights and similar services. Plaintiffs say they have a religious obligation to preach in public, including carrying signs and wearing messages on their clothes. One of the men, along with a second preacher, was ordered out of the display last year when they insisted on preaching to those attending.  Deputy City Attorney Alison Lutterman says that Bentleyville, a private organization, "has a contact with the city that allows it exclusive rights to the use of the Bayfront area for its presentation of a holiday lighting display.... These exclusive rights include the right to exclude persons. Bentleyville is not an area intended for the exercise of 1st Amendment activity. The management of Bentleyville have been advised of its right to exclude persons from the area within its contractual exclusive use." In the lawsuit, Steve Jankowski and Peter Scott ask the court to enjoin Duluth police officials from ejecting them from the event.

Court Orders Father To End Mormon Education of Children Without Mother's Consent

In In re the Marriage of John and Angela Bell, (CA App., Nov. 18, 2011), a California appellate court upheld a trial court's order in a marriage dissolution case preventing the father from continuing taking the couple's young children to Mormon religious services and Sunday School without the mother's consent.  The order would expire when the children reached 12 years of age.  The mother was Jewish, and during the marriage the children had been raised in the Jewish religion. An expert who conducted a child custody investigation concluded that the children were confused because they thought their father had become Jewish, that involving the children in Mormon education was being used as a weapon by the father to intimidate his former spouse, and that continuing it would cause psychological harm to the children.

Georgia High Court Favors Parent Church In Two Property Cases

In Rector, Wardens and Vestrymen of Christ Church in Savannah v. Bishop of the Episcopal Diocese of Georgia, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court in  a 6-1 decisions held that "neutral principles of law show that the property of Christ Church at issue is held in trust for the benefit of the Episcopal Church." In 2007, Christ Church broke away from the Episcopal Church and affiliated with the more conservative Anglican Province of Uganda. The break came after the Episcopal Church voted to ordain an openly gay man as Bishop of New Hampshire. Judge Brown dissented.  Episcopal News Service reports on the decision.

In a 4-3 decision in Presbytery of Greater Atlanta, Inc. v. Timberridge Presbyterian Church, Inc., (GA Sup. Ct., Nov. 21, 2011), the Georgia Supreme Court held that under the "neutral principles of law" doctrine, the property of the break-away Timberridge Presbyterian Church was held in trust for the national church, the PCUSA. Justice Nahmias, writing for the majority, said:

in its own charter TPC Inc. proclaimed its allegiance to the PCUSA Book of Order, which included a provision explicitly stating that local church property is held in trust for the use and benefit of the PCUSA, and at no time during the more than two decades before this dispute erupted and the eight years after it was deeded the property at issue did TPC Inc. even seek to amend its Articles to demonstrate any different intent.

Two separate dissenting opinions were also filed.

House Holds Hearing On International Religious Freedom Report

On Nov. 17, the House Committee on Foreign Affairs, Subcommittee on Africa, Global Health, and Human Rights, held a hearing on the State Department's 2011 International Religious Freedom Report. (See prior posting.) The subcommittee has posted the full text of testimony by Leonard Leo, Chairman of USCIRF; Bishop Ricardo Ramirez, representing the U.S. Conference of Catholic Bishops; Benedict Rogers, representing Christian Solidarity Worldwide; Rev. Majed El Shafie, president of One Free World International; and R. Drew Smith, scholar-in-residence at Morehouse College. While the witnesses focused on religious freedom issues in specific countries, they also dealt with various organizational and structural issues. Leonard Leo, for example, urged passage of the USCIRF reauthorization bill, discussed the reporting cycle used by the State Department, welcomed the announcement of Countries of Particular Concern at the same time that the International Religious Freedom Report is issued, urged upgrading of the role of the Ambassador-at-Large for International Religious Freedom and sought more training for Foreign Service Officers on promoting religious freedom.

New Report On Religious Advocacy Groups In D.C.

Yesterday, the Pew Forum on Religion and Public Life released a new report titled Lobbying for the Faithful:   Religious Advocacy Groups in Washington D.C. Here is an excerpt from the Executive Summary:

The number of organizations engaged in religious lobbying or religion-related advocacy in Washington, D.C., has increased roughly fivefold in the past four decades, from fewer than 40 in 1970 to more than 200 today. These groups collectively employ at least 1,000 people in the greater Washington area and spend at least $390 million a year on efforts to influence national public policy. As a whole, religious advocacy organizations work on about 300 policy issues. For most of the past century, religious advocacy groups in Washington focused mainly on domestic affairs. Today, however, roughly as many groups work only on international issues as work only on domestic issues, and nearly two-thirds of the groups work on both.... 

The study finds that about one-in-five religious advocacy organizations in Washington have a Roman Catholic perspective (19%) and a similar proportion are evangelical Protestant in outlook (18%), while 12% are Jewish and 8% are mainline Protestant. But many smaller U.S. religious groups, including Baha’is, Buddhists, Hindus, Muslims and Sikhs, also have established advocacy organizations in the Washington area. In fact, the number of Muslim groups (17) is about the same as the number of mainline Protestant groups (16). And the largest category today is interreligious: One-quarter of the groups studied (54) either represent multiple faiths or advocate on religious issues without representing a specific religion....

 Efforts by religious groups to influence U.S. public policy are a multimillion-dollar endeavor, with combined annual expenditures conservatively estimated at more than $390 million.

British Scouting Organization Considering Religion Neutral "Promise"

Britain's Guide Association-- a half-million member organization similar to the Girl Scouts-- is considering amending its "Promise" to eliminate religious references (or creating a separate non-religious alternative) after two families objected to the  current version that reads: "I promise that I will do my best, to love my God, to serve the Queen and my country, to help other people and to keep the Guide Law." Yesterday's London Telegraph reports that Guides who do not take the Promise are not eligible for some of the group's highest awards, such as the Baden-Powell Challenge Award and the Chief Guide's Challenge. The Guides in France and Netherlands have a version of the Promise that omits references to God. Britain's National Secular Society says that Britain's version discriminates against atheists.

Recent Articles of Interest

From SSRN:

• Elda De Waal, Raj Mestry and Charles J. Russo, Religious and Cultural Dress at School: A Comparative Perspective, (Potchefstroom Electronic Law Journal, Vol. 14, No. 6, 2011).
• Daniel Martin and Jessica Margolin, Uniform Guidelines, Spirituality, and Predictors of Ethical Workplace Behaviors, (Journal of Law, Business and Ethics, Forthcoming).
• C. Scott Pryor, Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition, (Campbell Law Review, Vol. 33, p. 609, 2010-2011).
• C. Scott Pryor, Natural Law and the Two Kingdoms: A Study in the Development of Reformed Social Thought by David Vandrunen, (January 26, 2011).
• Sigrid Hemels, Effectiveness of the Current VAT Treatment of Charities: Are the Objects of the VAT Exemptions in the Public Interest Being Achieved and If Not, How Can This Be Improved within the Restrictions Imposed by EU Legislation?, (International VAT Monitor, No. 5, 2011).
• Sigrid Hemels, What If Gulbenkian Had Been Persche: Taxing Charitable Giving in Europe, (Revista de finanças públicas e direito fiscal, Vol. 3, No. 4, pp. 137-155, 2011).
• Lynnn D. Wardle, Marriage and Religious Liberty: Comparative Law Problems and Conflict of Laws, (Journal of Law & Family Studies, Vol. 12, No. 2, p. 315, 2010).
• John B. Davis, Pluralism and Anti-Pluralism in Economics: Homo Economicus and Religious Fundamentalism, (November 15, 2011).

From SmartCILP:

• Carl Anderson, Law and Culture: Christianity on Trial, [Abstract], 9 Ave Maria Law Review 207-220 (2011).
• Caitlin Stapleton, The Legal Legacy of Pope Gregory I: In Life and Letters, [Abstract], 9 Ave Maria Law Review 303-333 (2011).
• Symposium. Confronting Islam: Shari'ah, the Constitution, and American Muslims. Panel participation by Peter Danchin and Barbara Olshansky, moderators; Nathan Brown, Faisal Kutty and Sahar Aziz, panelists; keynote address by Imam Suhaib Webb. 11 University of Maryland Law Journal of Race, Religion, Gender & Class 59-96 (2011). 

Report Traces Path of Herman Cain's Religious Faith

CNN yesterday posted a lengthy report on Republican Presidential hopeful Herman Cain's religious faith and his active involvement as an associate minister in Atlanta's Antioch Baptist Church-- a congregation Cain's parents joined when Cain was 10 years old.  CNN reports:

Cain’s religiosity runs deep enough that he regularly delivers sermons at his childhood church, has recorded a gospel music album and has a traveling minister as part of his campaign apparatus.... For all his church involvement, Cain’s message of self-determinism is seemingly at odds with Antioch’s focus on social justice....

Since becoming an associate minister at Antioch, Cain has preached in pulpits around the country, often eschewing the big paydays of motivational speaking gigs for modest preaching honorariums.

Cain has written that his decision to run for the U.S. Senate in 2002 as well as his current run for the Presidency was inspired by God.  In 2006 Cain had successful surgery for colon cancer. CNN recounts:

And when it was time for surgery, the doctors explained they would be making a J-shaped incision. “Like J-E-S-U-S?” Cain asked the doctor. The candidate would go on to call the incision a “Jesus cut.”...

By January 2007, Cain was cancer-free. The road signs began to change. He returned to the radio airwaves and began sowing the seeds of a run for president..... Herman Cain did not want to run for president. He did not want to be president. But God told him to.....

“When I finally realized that this was God saying what I needed to do, I was like Moses. ‘You got the wrong man, Lord! Are you sure?’ Now, you're not supposed to doubt God. But I'm going, ‘I think maybe you're looking at somebody else.’”

Recent Prisoner Free Exercise Cases

In Shepherd v. Goord, (2d Cir., Nov. 15, 2011), the 2nd Circuit held that 42 U.S.C. § 1997e(d)(2) which caps any attorney fee award in prisoner cases at 150% of of damages applies to prisoner cases in which only nominal damages are awarded. In the case, a jury awarded $1 in damages to an inmate whose Rastafarian religious beliefs were violated by correction officials touching his dreadlocks during a search. Attorneys fees payable by defendants were thus limited to $1.50.

In Cobb v. Mendoza-Powers, 2011 U.S. Dist. LEXIS 131017 (ED CA, Nov. 14, 2011), a California federal magistrate judge rejected an inmate's claim that his rights under the 1st Amendment and RLUIPA were violated when he was required to shave his head against his religious beliefs.

In Thompson v. Hoops, 2011 U.S. Dist. LEXIS 131130 (CD CA, Nov. 9, 2011), a California federal magistrate judge permitted a pre-trial detainee to move ahead with his claim that his free exercise rights were infringed when prison authorities refused to give him access to ceremonial oils, an Assemblies of Yahweh religious text and chaplain, and refused to allow him to participate in his religion's holy days and feasts.

In Brown v. Alden, 2011 U.S. Dist. LEXIS 131343 (ED WA, Nov. 14, 2011), a Washington federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 131347, Oct. 13, 2011), and permitted an inmate who self-identified as Jewish to move ahead with his complaint that he was denied access to Jewish chapel on Fridays for group worship, candle lighting, and access to Jewish materials.

In Hawkins v. Hollingsworth, 2011 U.S. Dist. LEXIS 131582 (SD IL, Nov. 15, 2011), an Illinois federal district court refused to dismiss claims by an inmate that his free exercise rights were violated when he was denied the right to assemble, time for prayer and study, the right to watch videos, and a religious diet. Plaintiff was also permitted to move ahead on his complaint that his House of Yaweh group was not given its own separate worship time, but, instead, was placed with another religious group.

In Mootry v. Flores, 2011 U.S. Dist. LEXIS 132266 (ED CA, Nov. 16, 2011), a California federal magistrate judge recommended dismissal on various grounds of a Muslim inmate's complaint that his rights under the 1st Amendment and RLUIPA were being violated by prison rules that required a chaplain or outside volunteer before group religious services could be held. The lack of volunteers and delays in hiring a Muslim chaplain led to an absence of Friday Jum'ah services for over a year.

Bankruptcy Court Approves Sale of Robert Schuller's Crystal Cathedral To Catholic Diocese

In Santa Anna, California on Thursday, a bankruptcy judge approved the sale of Crystal Cathedral-- the modernistic home of televangelist Rev. Robert Schuller's ministry-- to the Roman Catholic Diocese of Orange.  Crystal Cathedral Ministries filed for Chapter 11 bankruptcy last October.  The Los Angeles Times reports that Chapman University had also been bidding for the Cathedral, and even upped its bid to $59 million, topping the $57.5 million sale to the Catholic Church approved by the court.  The Crystal Cathedral board and Schuller himself both strongly favored the sale to the Catholic diocese because it will consecrate the Cathedral as a Catholic Church. Chapman University wanted the site as a satellite campus and might some day have used the Cathedral for non-religious purposes. The diocese will allow Cathedral Ministries to lease back core buildings for three year. Chapman University had been willing to allow the church to stay on most of the property for as long as 20 years.

Suit On Wearing Kufi In Courthouse Is Not Frivolous

In Al-Qadir v. Wackenhut Corp., 2011 U.S. Dist. LEXIS 131470 (MD TN, Nov. 15, 2011), a Tennessee federal magistrate judge ruled that a free exercise complaint filed by a plaintiff proceeding in forma pauperis is not frivolous. Under 28 USC 1915(e), the complaint would be dismissed if it was frivolous. At issue are allegations that Juvenile Court officials told plaintiff that he could not wear his kufi inside the court building. The court held: "While it appears that the situation underlying Plaintiff's Complaint has been resolved for the future, Plaintiff still has an arguable claim for nominal damages for the incident that occurred on April 11, 2011."

Utah Highway Patrol Memorial Crosses Modified In Hopes of Saving Them

Now that the U.S. Supreme Court has refused to review the 10th Circuit's decision in Utah Highway Patrol Association v. American Atheists (see prior posting), proponents of the memorial crosses involved in the case have made changes hoping to overcome the Establishment Clause problems found by the 10th Circuit.  At issue are roadside crosses memorializing individual Highway Patrol members who were killed in the line of duty. 11  of the 14 crosses are on state property. AP reported Friday that the logo of the Utah Highway Patrol Association has now been removed from the crosses, and a disclaimer (large enough to be read by passing cars) has been added to each cross stating that it is not meant to be a state endorsement of religion. However it is unclear that this will be enough to change the court's ruling since no other organizations are permitted to place signs or memorials along highways for safety reasons.

ACLU Questions Policy On High Schoolers Wearing Rosaries That Are Gang Symbols

In Brownsville, Texas, the ACLU has filed an open records request with school officials in order to look into the a provision in the high school's Code of Conduct that bans wearing "religious symbols which have been altered with the intent of causing offense or inciting or promoting gang activity, violence, or other prohibited behaviors."  The San Antonio Express News today reports that the move comes after school officials instructed  students wearing handmade rosaries around their heads and waists to instead tuck them into their clothes.  Police officials say the rosaries are symbols identifying the students' connection to prison gangs.

Education Official In Canadian Territory Sets Ground Rules For Distributing Religious Materials In Schools

The Deputy Minister of Education in the Canadian federal territory of Nunavut has ruled that religious materials may be distributed in the public schools.  Deputy Minister Kathy Okpik's statement (full text) reads in part:

The Education Act allows District Education Authorities to grant permission for the distribution of religious materials in schools outside of the education program.

Governments cannot promote any particular religion or faith over another. As a public institution, the District Education Authority cannot show favoritism to one religious group over another. If a District Education Authority allows one religious group into the schools to distribute materials, it must allow all religious groups the same access.

No one, including teachers and students can be forced to participate in religious programs or receive religious materials if they object on personal, moral or religious grounds.

Nunatsiaq Online reports that the statement was issued shortly after the District Education Authority in the town of Arviat gave the Gideons permission to distribute Bibles to students in grades 5 through 12 in the schools.

Canadian Court Rejects Claim That Ban of Cannabis Violates Religious Freedom

In Bennett v. Attorney General for Canada, (Fed. Ct., Nov. 15, 2011), the Federal Court of Canada upheld a refusal by Canada's Minister of Health to grant an exemption from Canada's Controlled Drugs and Substances Act to a member of the Church of the Universe who believes that cannabis is the "tree of life."  Applicant argued that the ban on marijuana violates his rights under Sections 2 (freedom of religion), 7 (protection of liberty) and 15 (equal protection) of the Canadian Charter of Rights and Freedoms. Rejecting applicant's religious freedom claim, the court said:

The Applicant ... has not shown that his practice of consuming seven grams of marihuana per day has any nexus with religion. While the Applicant has shown that his practice is based on the belief that cannabis is the tree of life, this, in and of itself, does not make it a religious practice....

The Charter’s recognition that religion is of great personal importance to its adherents does not flow into the converse conclusion that all practices and beliefs that are of great personal importance to individuals are religious in nature.

Cannabis Culture reports on the decision.

Suit Claims Employee Was Fired For Refusing To Wear "666" Sticker

AP reports today on a religious discrimination lawsuit filed in federal court in Georgia by a fired factory worker.  Pliant Corp. (now Berry Plastics Corp.) celebrated its safety record by having workers each day wear stickers displaying the number of accident-free days in their factory. In early 2009, the accident-free days moved into the 600's and employee Billy Hyatt told a manager that he would not be able to wear a sticker proclaiming 666 days. According to Hyatt's Christian religious beliefs, wearing this would force him to accept the mark of the beast and be condemned to hell. The manager assured him that he would not have to wear the number, but when the 666th day arrived he was told that his beliefs were ridiculous and he would be suspended for 3 days for not wearing the sticker. Several days later he was fired. The EEOC issued Hyatt a right to sue letter.

7th Circuit Grants En Banc Review In Case On Use of Church For Graduation Ceremonies

Brookfield Patch reports that yesterday the U.S. 7th Circuit Court of Appeals granted en banc review in John Doe, 3 v. Elmbrook School District.  In granting review by the full court, the court vacated the 2-1 panel decision that upheld against an Establishment Clause challenge the practice by two Wisconsin public high schools of holding their graduation ceremonies in a Christian church that the district rented for the occasion. (See prior posting.)