Friday, June 15, 2012

Study Says Religious Organizations Get $71B In Tax Subsidies and Other Aid

A study published in the June/July issue of Free Inquiry magazine titled How Secular Humanists (and Everyone Else) Subsidize Religion in the United States estimates that federal, state and local governments, through tax deductions, exemptions and direct expenditures, subsidize religion in the United States in an amount equal to at least $71 billion per year. Yesterday's Washington Post reports on the study.

Christian Groups Protest Government's "Two-Class" Concept For Religious Organizations

Baptist Press reports on a June 11 letter to Health and Human Services Secretary Kathleen Sebelius from over 140 leaders of Christian churches, educational institutions and other Christian organizations protesting the "two-class concept of religious organizations" that has been created by attempts to accommodate faith-based objections to the Obama administration's mandate on contraceptive coverage in health insurance policies. (Full text of letter.)  The letter says in part:
[W]e are united in opposition to the creation in federal law of two classes of religious organizations:  churches—considered sufficiently focused inwardly to merit an exemption and thus full protection from the mandate; and faith-based service organizations—outwardly oriented and given a lesser degree of protection.  It is this two-class system that the administration has embedded in federal law via ... rules providing for an exemption from the mandate for a narrowly defined set of “religious employers” and ... a different "accommodation” for non-exempt religious organizations.
And yet both worship-oriented and service-oriented religious organizations are authentically and equally religious organizations.... We deny that it is within the jurisdiction of the federal government to define, in place of religious communities, what constitutes true religion and authentic ministry.... The scheme honors acts of worship while burdening those whose faith leads them to service in our common life.
The letter was organized by the Institutional Religious Freedom Alliance.

Thursday, June 14, 2012

Egypt's Top Court Rules Parliament Illegally Elected In Blow To Muslim Brotherhood

In what the New York Times describes as "a frontal legal assault on the Muslim Brotherhood," Egypt's Supreme Constitutional Court today ruled that Egypt's new Parliament was improperly elected and must be dissolved immediately.  As explained by the Times:
The question at issue in the high court’s decision was the application of a rule setting aside two-thirds of the seats in Parliament for selection by a system of party lists, also known as proportional representation. The other third was reserved for individual candidates competing in winner-take-all races.
Other authorities had decided before the parliamentary election that parties could run their members under their banners as candidates for the individual seats as well as the party list seats, but the court ruled Thursday that the parties should not have been allowed to compete for those seats, and so the results were invalid.
The Muslim Brotherhood’s Freedom and Justice Party, as the largest and strongest, stands to lose the most from the ruling. As many as 100 of its 235 seats in the 508-member assembly were elected as individual candidates running under its banner. If it lost all of those seats, the Brotherhood would still control the largest bloc in the chamber, and together with the ultraconservative Salafi parties Islamists would still command a majority. But the Brotherhood’s leadership of the chamber would be much less decisive.
In a second decision, the Court upheld the candidacy of presidential contender Ahmed Shafik, who was Hosni Mubarak's last prime minister. It ruled unconstitutional a law that attempted to prevent former Mubarak government top officials from running for President.  Shafik is in a runoff with Muslim Brotherhood candidate Mohamed Morsi for the presidency.

Israel- Vatican Continue Negotiations On Status and Taxation of Church

Zenit reports that the Bilateral Permanent Working Commission between the Holy See and the State of Israel met in the Vatican on June 12 to discuss an agreement that has been under negotiation for the last 13 years. The agreement relates to the life, activity and tax status of the Catholic Church in Israel, but does not deal with Church properties in Jerusalem or the West Bank. A communique issued after the meeting stated: "The Parties have agreed on future steps and to hold the next plenary meeting on 6 December 2012 at the Israeli Ministry of Foreign Affairs."

Faith Groups Urge Congressional Passage of ENDA

On Tuesday, the U.S. Senate Committee on Health, Education, Labor & Pensions held a hearing on "Equality At Work: The Employment Non-Discrimination Act" (full text of witness statements and video of full hearing). The bill, S. 811, would bar employment discrimination on the basis of sexual orientation or gender identity.  In connection with the hearing, 37 faith groups released a letter they had sent to each member of the Committee urging passage of the bill, saying "we cannot tolerate arbitrary discrimination against millions of Americans just because of who they are." The letter, at the same time, emphasized that
ENDA broadly exempts from its scope any religious organization, thereby ensuring that religious institutions will not be compelled to violate the religious precepts on which they are founded, whether or not we may agree with those precepts. In so doing, ENDA respects the protections for religious institutions afforded by the First Amendment and Title VII of the Civil Rights Act of 1964....

Bishops Plan "Fortnight for Freedom"

Reuters reported yesterday that U.S. Catholic Bishops, at their national convention in Atlanta, have agreed to show a united front through a "Fortnight for Freedom". Some liberal Catholics have been concerned that the bishops' religious liberty campaign, sparked particularly by the Obama administration's mandate requiring contraceptive coverage in health care plans, has taken on too partisan a tone. A website created by the Bishops to make information about the Fortnight for Freedom available, includes the following description:
The fourteen days from June 21—the vigil of the Feasts of St. John Fisher and St. Thomas More—to July 4, Independence Day, are dedicated to this “fortnight for freedom”—a great hymn of prayer for our country. Our liturgical calendar celebrates a series of great martyrs who remained faithful in the face of persecution by political power—St. John Fisher and St. Thomas More, St. John the Baptist, SS. Peter and Paul, and the First Martyrs of the Church of Rome.  Culminating on Independence Day, this special period of prayer, study, catechesis, and public action will emphasize both our Christian and American heritage of liberty. Dioceses and parishes around the country have scheduled special events that support a great national campaign of teaching and witness for religious liberty.
The website also displays a "Prayer for the Protection of Religious Liberty" which reads in part as follows:
... Give us the strength of mind and heart to readily defend our freedoms when they are threatened; give us courage in making our voices heard on behalf of the rights of your Church and the freedom of conscience of all people of faith.
Grant, we pray, O heavenly Father, a clear and united voice to all your sons and daughters gathered in your Church in this decisive hour in the history of our nation, so that, with every trial withstood and every danger overcome— for the sake of our children, our grandchildren, and all who come after us— this great land will always be "one nation, under God, indivisible, with liberty and justice for all."...

EEOC Sues Company For Religious Discrimination In Hiring

The EEOC announced Tuesday that it had filed a lawsuit in federal district court in Oklahoma charging a Nebraska-based lighting products supplier with violating Title VII of the 1964 Civil Rights Act by refusing to hire an applicant at its Tulsa (OK) location because of his religious beliefs.  According to the release:
... Voss Lighting, advertised a vacancy for an “operations supervisor”  position through the website of the First Baptist Church of Broken Arrow, the  church attended by the incumbent manager.  Although he did not himself attend the church,  Edward Wolfe, who had prior management experience, learned about the vacancy  and applied for the position.  The Voss manager  met with Wolfe and recommended him to the branch manager for an interview.  Throughout the application process, both managers  made numerous inquiries, both subtle and overt, into Wolfe’s religious  activities and beliefs.  They asked Wolfe  to identify every church he has attended over the past several years; where and  when he was “saved” and the circumstances that led up to it; and whether he  “would have a problem” coming into work early to attend Bible study before clocking in.

Wednesday, June 13, 2012

ICANN Releases New gTLD Applications; Some Have Religious Connections [CORRECTED]

Among followers of the Internet, today is known as "New gTLD Reveal Day". In what will be the largest expansion ever of the Internet Domain Name System, the Internet Corporation for Assigned Names and Numbers (ICANN) published a list of who has applied for which new generic Top-Level Domain (gTLD) names. (Press release.) The full list discloses 1,930 applications.  Several organizations have applied for gTLD's that have, or may have, a religious connection or connotation. These faith-related domain names (along with the applicants) are:
  • BIBLE (American Bible Society)
  • CATHOLIC (Pontifical Council for Social Communication)
  • CBN (Christian Broadcasting Network)
  • CHRISTMAS (Uniregistry Corp.)
  • CHURCH (Life Covenant Church and Holly Fields)
  • FAITH (dot Faith Limited)
  • HALAL (Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti.)
  • ISLAM (Asia Green IT System Bilgisayar San. ve Tic. Ltd. Sti.)
  • ISMAILI (Aga Khan Foundation)
  • KOSHER (Kosher Marketing Assets LLC)
  • MORMON (IRI Domain Management, LLC)
  • YOGA (Victor Falls, LLC; Top Level Domain Holdings Limited; Uniregistry, Corp.)
  • كاثوليك (Pontifical Council for Social Communication)
  • 天主教 (Pontifical Council for Social Communication)
[CORRECTED-- an earlier version of this posting misread one of the application names. As misread, it could have been seen as controversial or derogatory. As correctly read, it has no connection to a religious topic.]

ICANN's Senior Vice President Kurt Pritz said:
A 60-day comment period begins today, allowing anyone in the world to submit comments on any application, and the evaluation panels will consider them," said Pritz. "If anyone objects to an application and believes they have the grounds to do so, they can file a formal objection to the application. And they will have seven months to do that."
Here it the page from wich public comments may be submitted.  ICANN has also posted instructions for those who wish to file formal objections.

UPDATE: Mashable reports further on religious gTLD applications, pointing out another relevant application as well: LDS (for Latter Day Saints) sought by IRI Domain Management, LLC.

UPDATE2: IMAMAT should also be added to the list of gTLD applications involving religious references. [Thanks to comment from Shahram Soboutipour.]

North Dakota Voters Defeat Religious Freedom Restoration Amendment

Voters in North Dakota yesterday soundly defeated Initiated Constitutional Measure No. 3 that would have placed a broad version of state religious freedom restoration laws in the state's constitution.  With all votes counted, the results were 107,680 (64.04%) No; and 60,465 (35.96%) Yes. (Official results).

The proposed constitutional amendment provided:
Government may not burden a person’s or religious organization’s religious liberty. The right to act or refuse to act in a manner motivated by a sincerely held religious belief may not be burdened unless the government proves it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest. A burden includes indirect burdens such as withholding benefits, assessing penalties, or an exclusion from programs or access to facilities.
As reported by the Dickinson (ND) Press, opponents of the measure argued that the amendment was vaguely worded, unnecessary, and might allow freedom of religion to be used as a defense in criminal cases.

Georgia Denies KKK's Application To "Adopt-A-Highway"

The Atlanta Journal Constitution reports that Georgia's Department of Transportation yesterday denied the application of the International Keystone Knights of the Ku Klux Klan to participate in the Department’s Adopt A Highway program. (Full text of DOT statement.) As reported Monday by the Atlanta Journal Constitution, the KKK wanted to adopt a one-mile stretch of highway in the Appalachian Mountains near the North Carolina border. Under the program a group agrees to pick up litter from the road at least 4 times per year, and is recognized by a sign placed  near the area for which the group is responsible.  Opponents say the Klan is trying to use the state program to rebrand its image.  In its statement on the refusal of the application, the DOT said:
Maintaining the safety of our roadways is this Department’s foremost mission.  Encountering signage and members of the KKK along a roadway would create a definite distraction to motorists.  Also, the section of roadway requested is ineligible for adoption due to its posted speed limit exceeding the program maximum of 55 mph.  
Further, promoting an organization with a history of inciting civil disturbance and social unrest would present a grave concern to the Department.

RLUIPA Injunction Claim Survives In Suit Over Building Permit For Private Chapel

In Anselmo v. County of Shasta, California, (ED CA, June 7, 2012), the devout Roman Catholic owner of a ranch and winery challenged the County of Shasta for its refusal to allow him to build a private chapel on his land. The county claimed that the building was inconsistent with the agricultural use zoning on the property, with the Williamson Act contract on it, and claimed that it was subject to the requirements of the Americans With Disabilities Act. A California federal district court permitted plaintiff to proceed with claims for an injunction against enforcement of a portion of the county building code and its zoning laws under the "substantial burden" provisions of the Religious Land Use and Institutionalized Persons Act.  However, it dismissed plaintiff's free exercise and due process claims, his RLUIPA "equal terms" claim, and his RLUIPA claim insofar as it related to county enforcement of the Americans With Disabilities Act against the chapel. The court also found that an individual defendant (a county official) had qualified immunity as to a claim for money damages under RLUIPA's substantial burden provision.

Tuesday, June 12, 2012

China Publishes Plan To Uphold Religious Freedom and Aid Religious Groups

Xinhua reports today that China's State Council Information Office has published the National Human Rights Action Plan of China (2012-2015).  The Plan, which  deals with a broad range of human rights, proclaims as to freedom of religious belief:
China upholds the principle of freedom of religious belief stipulated in the Constitution and strictly implements the Regulations on Religious Affairs to guarantee citizens' freedom of religious belief.
-- Protecting citizens from being forced to believe in or not to believe in any religion, and from discrimination due to religious belief.
-- Protecting normal religious activities according to law.
The Plan also promises financial support for a number of Buddhist and Islamic religious projects, im;oementing social security for religious staffs and improving the organization and management of services to Hajj pilgrims.  The Plan also calls for promotion of cultural exchanges between Chinese and foreign religious organizations.

Cert. Denied In Case On Student Distribution of Religious Material

The U.S. Supreme Court yesterday denied certiorari in Morgan v. Swanson (Docket No. 11-804) and the cross appeal in the same case, Swanson v. Morgan (Docket No. 11-941). (Order List, 5/11/2012). In the case, in 8 separate opinions, a majority of the U.S. 5th Circuit Court of Appeals, sitting en banc, held (see prior posting) that because the law was not clearly established,  Plano, Texas school principals had qualified immunity in a lawsuit charging them with restricting elementary school students' distribution of religious literature to other students. A separate majority of the court held, however, that the principals' actions were unconstitutional. Education Week reports on the Supreme Court's denial of review, noting that the 5th Circuit's decision applied to only two of several incidents in the schools that were challenged-- one of which involved the attempted distribution of candy cane ink pens with a religious message attached.

State Trial Court Rejects Challenge To Pledge of Allegiance In Schools

In Doe v. Acton-Boxborough Regional School District, (MA Super. Ct., June 5, 2012), a Massachusetts trial court rejected a state constitutional challenge to the recitation of the Pledge of Allegiance, including the phrase "under God", in Massachusetts schools at the beginning of each school day. No student is required to take part in the recitation. Plaintiffs claimed, however, that the phrase "under God" is a "religious truth" that contradicts their own atheist-humanist beliefs, and that daily recitation of the pledge discriminates against them by marginalizing them and classifying them as unpatriotic. The court held that the insertion of the phrase "under God" was a reference to the historical and religious traditions of the United States and did not turn the Pledge into a religious exercise nor violate anti-discrimination requirements. The Becket Fund issued a press release announcing the decision. In a press release yesterday, the American Humanist Association says that plaintiffs will appeal the decision.

Monday, June 11, 2012

Buddhist-Muslim Violence Rages In Myanmar

Reuters reports today on Buddhist-Muslim violence that broke out over the weekend in the state of Rakhine in Myanmar (Burma). At least 8 people have been killed as rival Buddhist and Muslim mobs torch large numbers of houses.  The fighting, which has spread to Sittwe (the capital of the state), reflects decades-long tensions between the majority Buddhist population and the long persecuted Rohingya Muslim minority.  The government regards the 800,000 Rohingya as illegal immigrants from neighboring Bangladesh and refuses to grant them citizenship, while the Rohingya claim they have been in Rakhine for centuries and want full citizenship. As democratic reforms have moved ahead under President Thein Sein, some Burmese in recent days have used their liberalized access to the Internet to express their anti-Rohingya feelings on social media sites (particularly on Twitter). The current violence was apparently triggered by the gang rape and murder of a Buddhist woman a week ago which was blamed on Muslims and killing by a Buddhist mob of 10 Muslims in return. Troops have been sent to the region and curfews are being imposed.

Controversial Pastor Hangs Obama In Effigy To Protest Marriage and Abortion Stances

Terry Jones, pastor of the small Gainesville, Florida Dove Outreach Center, who gained notoriety in 2011 for burning a copy of the Qur'an (see prior posting), has now created another controversy.  As reported last week by the Huffington Post (along with a photo), Jones has hanged President Obama in effigy on the front lawn of his church:
The effigy is suspended from a makeshift gallows with a noose of yellow rope, has a doll in its right hand and a rainbow-colored gay pride flag in its left.
In a telephone interview with The Huffington Post, Jones said the flag was meant to call attention to Obama's stance on same-sex marriage and that the baby doll is there because the president is "favorable toward abortion."...
There is also an Uncle Sam dummy standing at the base of the gallows outside the DWOC. Jones told HuffPost that the Obama effigy had originally been positioned to be hanging Uncle Sam when the display went up two weeks ago, but that the church changed the display on Wednesday.
The words “Obama is Killing America” are printed on a trailer nearby.
The U.S. Secret Service is investigating the situation. [Thanks to Joseph K. Grieboski for the lead.]

Parent Church's Default Judgment Against Break-Away Congregation Upeld On Appeal

In Church of God in Christ, Inc. v. Board of Trustees of Emmanuel Church of God in Christ, (KA Ct. App., June 8, 2012), a Kansas state appellate court affirmed a default judgment and award of damages to an international hierarchical church body in its suit against a break-away local local congregation and some of its members.  Even though the split off of the congregation arose out of a dispute over the authority of the bishop to appoint a pastor for the church, that issue, according to the court, is separate from the property dispute. The court held that while it does not have jurisdiction over  appointment of clergy, it does have jurisdiction to resolve the property dispute.

Recent Articles and Books of Interest

From SSRN:
The June issue of Church & State has recently appeared online.

Recent Books:

Sunday, June 10, 2012

Recent Prisoner Free Exercise Cases

In Nance v. Miser, 2012 U.S. Dist. LEXIS 75307 (D AZ, May 30, 2012), an Arizona federal district court permitted a Muslim inmate to proceed against the prison's deputy director and its chaplain on his free exercise and equal protection challenges to the refusal to provide him with a Halal diet.

In Patterson v. Ryan, 2012 U.S. Dist. LEXIS 75289 (D AZ, May 30, 2012), an Arizona federal district court, in a suit by a Messianic Jew, rejected plaintiff's complaint that his request for kosher meals was fulfilled by serving him vegetarian meals for breakfast and lunch, and kosher meals for dinner. Only Orthodox Jews received 3 kosher meals. Plaintiff failed to show any burden on his religious practice.

In Muhammad v. Martel, 2012 U.S. Dist. LEXIS 76445 (ND CA, June 1, 2012), a California federal district court denied an inmate's habeas corpus petition, holding in part that derogatory references to petitioner's religion by the victim at his trial for stalking, and in the pre-sentence report, did not violate his free exercise rights.

In Erickson v. Lopez, 2012 U.S. Dist. LEXIS 76548 (WD WA, June 1, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 76552, April 27, 2012) and dismissed a Muslim inmate's free exercise claim growing out of the prison's assignment of him to a cell with a Wiccan inmate who assaulted him after authorities refused to transfer him to a different cell. The court held that placing inmates of different religions together does not necessarily substantially burden either's free exercise.

In Foster v. Bhambi, 2012 U.S. Dist. LEXIS 77188 (ED CA, June 4, 2012), a California federal magistrate judge rejected a state prisoner's claim that his free exercise rights were violated when prison officials allowed coronary bypass surgery, which he had previously refused, to be performed on him.

In Glenn v. New Hampshire State Prison Family Connections Center, 2012 U.S. Dist. LEXIS 78689 (D NH, June 4, 2012), a New Hampshire federal magistrate judge permitted a Muslim inmate to proceed with free exercise, RLUIPA, establishment clause and equal protection challenges. He complained that there had been no Muslim Jum'ah services for three years. Authorities said there were no approved volunteers to conduct them; but there were state-paid Christian chaplains.  Plaintiff also complained that he had no Qur'an or other Muslim literature, that the prison had not accommodated his need for a Muslim diet, shaving practices, or prayer requirements and had not provided him with food for a Ramadan feast.

In Jordan v. Fuller, 2012 U.S. Dist. LEXIS 78338 (D CO, June 5, 2012), a Colorado federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 78378, Jan. 17, 2012) and dismissed the claim of an inmate who does not practice any particular religion that his free exercise, equal protection, 8th Amendment and due process rights were infringed when he was not permitted a vegetarian diet.

In Johnson v. Carroll, 2012 U.S. Dist. LEXIS 79380 (ED CA, June 6, 2012), a California federal magistrate judge refused to dismiss a Muslim inmate's free exercise and equal protection claims growing out of the confiscation of his religious diet card when he was transferred to a different prison.

Muslim Can Move Ahead With Challenge To Ban On Kufi In Juvenile Court

In Al-Qadir v. Wackenhut Corp., 2012 U.S. Dist. LEXIS 75304 (MD TN, May 31, 2012), a Tennessee federal magistrate judge recommended against dismissing a free exercise claim by a Muslim who contended that a Wackenhut security guard denied him entry to, and subsequently removed him from, the Juvenile Court building in Nashville, Tennessee because he was wearing a Kufi. Plaintiff agreed to remove the kufi to be searched, but insisted on then wearing it again. Apparently the publicity caused by the filing of this case has caused the Juvenile Court to modify its policy for the future.

Religious Beards Continue To Violate Military and Police Grooming Standards

The clash between beards grown for religious purposes and grooming standards continues to make the news.  McClatchy Newspapers reported Friday that at Texas' Fort Hood, a military judge delayed the pre-trial hearing for accused mass killer Maj. Nidal Hasan because Hasan appeared in court with a full beard, grown for religious reasons. The beard violates the Army's grooming regulations, and Col. Gregory Gross said it was a disruption to court proceedings.  When the hearing resumes, possibly this week, Hasan will be required to watch it on closed-circuit television outside the courtroom if he does not comply with an order to "appear with proper military grooming standards."

Meanwhile, in New York City, a Hasidic Jewish Police Academy recruit was dismissed last Friday  for refusing to keep his beard, grown for religious purposes, trimmed to the 1 millimeter length permitted by police grooming rules. Fishel Litzman was only a month away from graduation, according to AP and the New York Daily News. [Thanks to Rabbi Michael Simon for this lead.]

Denmark Approves Full Wedding Ceremonies For Same-Sex Couples

AP and RT report that on Thursday, Denmark's parliament, by a vote of 85-24, approved a change to the country's marriage law that permits same-sex couples to be married in formal church weddings by the Church of Denmark. According to the Copenhagen Post, bishops will quickly develop a separate ceremony for such marriages. The change becomes effective June 15.  Previously, under a 1997 law, the state's Lutheran Church could only marry same-sex couples in a special short blessing ceremony at the end of a regular church service. Under the new law, any minister can refuse to conduct a same-sex ceremony, but the local bishop is then required to arrange for a replacement to do so. Also the new legislation automatically recognizes the 4,100 couples in registered civil partnerships as married.

Saturday, June 09, 2012

State Department's New Format For Human Rights Report Triggers Partisan Debate On Religious Liberty

On May 24, the State Department released the 2011 Country Reports on Human Rights Practices in a new streamlined format that includes a country-specific executive summary and examples of the significant human rights problems reported in each country.  The report can be accessed for each country, or a customized report across any number of countries by human rights topic can be created online. A report by CNS News this week illustrates, however, that the new format has become part of the partisan battle over the Obama administration's commitment to religious liberty. In the new format, for each country under the section on "Respect for Civil Liberties," the subtopic of "Freedom of Religion" reads:  See the Department of State’s International Religious Freedom Report at http://www.state.gov/j/drl/irf/rpt/"  According to CNS, some are claiming that this move is part of an effort by the Obama administration to downplay international religious freedom, and particularly to hide violence directed at Christians and other minorities in Muslim nations in Africa and the Middle East since the Arab Spring uprisings of 2011.  The cross-referenced State Department religious freedom report only covers the period through December 2010.

Vouchers Are Benefiting Catholic Schools

In a long front-page article in today's weekend edition, the Wall Street Journal reports that Catholic parochial schools are making a come back, and "are benefiting disproportionately from the rise of vouchers, available in 10 states and Washington, D.C.," as well as from and tax credit programs. According to the report, vouchers benefit Catholic schools more that higher-priced private schools because Catholic schools are often in urban areas, they have space, and they have an established history in the community. When Indiana began a voucher program last year, over 2,400 students transferred from public to Catholic schools, and another 1,500 moved to other religious or private schools.

House Hearing Held On Bill Clarifying VA's Role In Veterans' Funeral Ceremonies

On June 6, a subcommittee of the House Committee on Veterans' Affairs held hearings on a series of bills, one of which was HR 2720 (full text) which is designed to clarify the VA's role in military funerals.  Witnesses on Panel 3 and the submission of Rep. Poe at the hearing focus on this bill, which was prompted by a dispute last year over rules at the National Cemetery in Houston, including allegations that the Department of Veterans Affairs restricted religious content at ceremonies. (See prior posting.) The government claimed that the VA was merely attempting to honor the wishes of families. (See prior posting.) The bill would require the VA to make certain that a chapel displaying religious symbols chosen by the family is available at national cemeteries, and that access to the cemetery is provided to honor guards when requested by the family.  It also provides:
The Congress reaffirms the inviolable individual zone of privacy that each American possesses, including the deeply private act of choosing the content and creed of an individual's funeral, memorial service, or ceremony... [N]o official of the Federal Government, including the Secretary of Veterans Affairs, may interfere with the content and creed of the funeral, memorial service, or ceremony of a deceased individual, as expressed by the last will and testament of the individual or as determined by the family or agent of the individual....
The Washington Post reports on some of the questions raised by lawmakers during the hearing. [Thanks to Don Byrd for the lead.] 

Lawsuit Against USCIRF Claims Anti-Muslim Bias

On Thursday, a lawsuit was filed in federal district court in Washington, DC against the U.S. Commission on International Religious Freedom by a lawyer and expert on South Asian affairs, Safiya Ghori-Ahmad, who alleges that a permanent job offer with the Commission that she accepted was withdrawn because of anti-Muslim bias of two of the USCIRF commissioners. The complaint (full text) in Ghori-Ahmad v. United States Commission on International Religious Freedom, (D DC, filed 6/7/2012), recounts that plaintiff, formerly employed by the Muslim Public Affairs Council, was hired as an analyst by USCIRF’s executive director after staff interviews and review of her qualifications. However, after she left her prior job and before she began with USCIRF, the Commission, particularly at the urging of then-Commissioner Nina Shea, reneged on its hiring decision and instead offered her only a temporary 90-day position. According to the complaint:
Internal USCIRF email and discussions make clear that Ms. Ghori-Ahmad’s national origin and religion drove USCIRF’s ultimate decision to rescind its job offer. For example, Commissioner Shea, a particularly influential voice with long tenure on the Commission, wrote that hiring a Muslim like Ms. Ghori-Ahmad to analyze religious freedom in Pakistan would be like “hiring an IRA activist to research the UK twenty years ago.”
USCIRF allegedly retaliated further against Ghori-Ahmad when she filed a complaint about her treatment with the EEOC. The lawsuit claims that USCIRF's discrimination against plaintiff violates the Congressional Accountablity Act which was made applicable to USCIRF by the legislation passed last year that reauthorized the Commission.The Washington Post, reporting on the lawsuit, adds:
The allegations in the suit are the most explicit in a years-long series of allegations that commission leaders are biased against Muslims, specifically people associated with groups critical of U.S. foreign policy and who work for groups that fight anti-Muslim discrimination.
[Thanks to all who sent me leads on this.]

Friday, June 08, 2012

Kuwait's Emir Vetoes Increased Blasphemy Penalties, But Override Possible

RTT News reports that on Wednesday, Kuwait's Emir, Sabah Al-Ahmad Al-Jaber Al-Sabah, rejected legislation that had been passed by the National Assembly (Parliament) last month increasing the penalties for blasphemy. The Emir sent the bill back for reconsideration. Upon reconsideration, a 2/3 vote by the National Assembly requires the Emir to promulgate the law (Kuwait Constitution Art. 66) -- a result that seem likely since the bill originally passed by a vote of 40-6. (See prior posting.) The law would amend Article 111 of the Kuwait Penal Code to provide that any Muslim who mocks God, his prophets, messengers, Prophet Mohammad’s wives or the Qur'an may be subject to the death penalty or life in prison unless the defendant repents. If he does, then the judge is to instead impose a sentence of at least 5 years in prison and a fine equivalent to $36,000 (US). Lower penalties are provided for non-Muslim offenders. (See prior posting.) Currently, Section 111 provides only a one-year penalty for defamation of religion. (Background.)

9th Circuit Affirms Dismissal of Establishment Clause Challenge To Waldorf Schools

In a 3-page opinion in PLANS, Inc. v. Sacramento City Unified School District, (9th Cir., June 7, 2012), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's dismissal of an Establishment Clause challenge to two Northern California school districts that have created "Waldorf" schools. These schools use a holistic teaching method based on the educational philosophy of Rudolf Steiner, creator of the spiritually-based philosophy known as Anthroposophy. (See prior posting.) The 9th Circuit held that:
PLANS failed to meet its burden of showing that anthroposophy is a religion for purposes of the Establishment Clause. Although we express no view as to whether anthroposophy could be considered a religion on the basis of a fuller or more complete record, the record as it is before us is simply too thin to sustain that conclusion.
The court also held that PLANS had waived any argument that it could prevail on its Establishment Clause claim even without a determination that anthroposophy is a religion. The case has been winding its way through the courts since 1998.

USCIRF Elects Chair, Vice-Chairs

The U.S. Commission on International Religious Freedom announced yesterday that Dr. Katrina Lantos Swett has been elected Chair of USCIRF.  Rev. William J. Shaw and Mary Ann Glendon were elected Vice-Chairs. Section 201(d) of the International Religious Freedom Act mandates election of a chair by a majority of the USCIRF members present and voting at the first meeting after May 30 each year.

CDC Issues Report On Risky Ultra-Orthodox Jewish Circumcision Procedure

Time Magazine reports that the U.S. Centers for Disease Control and Prevention (CDC) released a report yesterday on Neonatal Herpes Simplex Virus Infection Following Jewish Ritual Circumcisions that Included Direct Orogenital Suction — New York City, 2000–2011. The report finds that during the 12 year period covered 11 newborn males contracted HSV infection from the ultra-Orthodox Jewish practice of  metzitzah b'peh in which the mohel places his mouth directly on the newly circumcised penis and sucks blood away from the circumcision wound. This circumcision method increases the risk for neonatal herpes 3.4 times that of male infants who have not had direct orogenital suction. On Wednesday, the New York City Health Department issued a statement (full text) strongly advising against the practice of metzitzah b’peh.  It also announced that 9 New York hospitals have agreed to distribute a Health Department pamphlet, Before the Bris: How to Protect Your Baby Against Infection, to parents considering out-of-hospital circumcision of their newborn boys. The New York Health Department's warnings echo those it issued as early as 2005. (See prior posting.) [Thanks to Vos iz Neias? for the lead.]

Egypt's Constitution Drafting Panel To Be Split Between Islamists and Non-Islamists

In Egypt, the Supreme Council of the Armed Forces has invited both chambers of parliament to meet next Tuesday to select the 100 members of the panel that is to draft the country's new constitution.  According to the Financial Times, this move came after agreement was reached on Thursday between the army and representatives of Islamist, liberal and leftwing parties in parliament on the makeup of the new drafting commission. Its membership will be split evenly between Islamists and non-Islamists, and will include members of parliament, judges, young people, women, public figures, Muslim clerics and church representatives.

Sikh Employee Wins Settlement With TSA

The Washington Post reported Wednesday that a Sikh man has won a $30,000 settlement in an employment discrimination claim against the Transportation Security Administration.  Kulwinder Singh, a TSA employee at New York's Kennedy Airport, was told by his TSA supervisor that he had to hide his kara (religious wristband) under a long sleeve shirt, or not wear it at all. In a decision last March, the EEOC ruled that the TSA needed to permit employees to wear the kara freely. Singh's attorney says that hiding the kara from sight defeats its purpose of reminding its wearer to act righteously and protect others.

Note to Readers: Comment Feature To Be Reactivated On Religion Clause Blog

A Note to Religion Clause Readers--

Beginning today, I am experimenting again with activating the Comment feature on Religion Clause blog.  Readers, after registering, will be able to post Comments relating to this and future items.  I deactivated the Comment feature in February 2010 after the Comment forum stopped serving a useful purpose. You can see my concerns that led to the decision at that time here.  Some readers were using it more to proselytize than to comment on the postings, and the number of readers submitting posts was small. I hope that its use will prove more effective this time.  However if it does not, I will again deactivate it.

Comments will not be moderated before they appear.  I do not have the time necessary to carry out that labor intensive function.  However, I reserve the right to remove any Comment that I find inappropriate for any reason.  Needless to say, though, my failure to remove a comment in no way indicates that I endorse it or find it appropriate.  Religion Clause has a knowledgeable and articulate readership. I hope the Comments will reflect this, and will respect the overall tone and goal of the blog. I also reserve the right to remove excessive numbers of postings by any individual reader, even if their content is appropriate.

The Comments will be accessible in a pop-up window so that they will not distract readers who are interested only in the main postings. I welcome Comments suggesting anything else that would make the Comment forum of more interest to you.  As always, feel free to contact me by e-mail where that is more appropriate. Thanks again to all the loyal Religion Clause readers.  I hope you find this step an improvement in the blog.

Best wishes,
Howard Friedman

Thursday, June 07, 2012

Another Court Says DOMA Is Unconstitutional

Another court has held that the Defense of Marriage Act is unconstitutional.  In Windsor v. United States, (SD NY,June 6, 2012), a New York federal district court awarded plaintiff Edith Windsor damages equal to the $353,000 in estate taxes paid to the federal government on her same-sex spouse's estate. Edith and her long-time partner Thea Spyer, who were New York residents, were married legally in Canada in 2007. Spyer by will left her estate for the benefit of Windsor, but because of DOMA Spyer did not qualify for the unlimited estate tax marital deduction. Without invoking strict scrutiny, the court held that Section 3 of DOMA violates the equal protection component of the 5th Amendment because the government's asserted interests are inadequate to support the law. Jurist reports that this is the fourth federal court decision invalidating DOMA. (See prior related posting.)

Former Cadet May Challenge Required Prayer At Honor Code Hearing

In Spadone v. McHugh, (D DC, June 6, 2012), the U.S. District Court for the District of Columbia held that former West Point cadet Alan Spandone has standing to claim that the Establishment Clause was violated when, at a hearing on his alleged Honor Code violations, he was ordered by the Commandant of Cadets to stand with his body rigid in a military posture and to read aloud the "Cadet’s Prayer."  The hearing involved charges of plagiarism, and the Commandant thought that Spandone had not shown contrition or accepted responsibility for his conduct. The Army argued to the court that reinstating Spandone would not cure the Establishment Clause violation.  The court held, however, that the likely remedy would be an injunction banning forced religious prayer. The court however rejected due process and other challenges by Spandone to his removal from West Point.

9th Circuit Upholds Hawaii Licensing Requirement For Commercial Beach Weddings

In Kaahumanu v. State of Hawaii, (9th Cir., June 6, 2012), the U.S. 9th Circuit Court of Appeal for the most part upheld against 1st and 14th Amendment challenges Hawaii's regulation and associated guidelines that require permits for "commercial weddings" on public beaches.  The permit requirement applies to any wedding involving receipt of compensation for goods or services, other than service of a photographer, even if the only compensation is that paid to a member of the clergy for performing the ceremony. The court held that the state regulation "is is narrowly tailored to a significant governmental interest, is content-neutral, leaves ample alternative spaces for hosting a wedding, and does not vest too much discretion in the government official when issuing the permits." The court however struck down a provision in the regulation giving the Department of Land and Natural Resources authority to revoke or add terms and conditions to an already issued permit for any reason.  The court rejected a contention by plaintiffs that the regulation's prohibition on placing various types of wedding accessories on the beach creates a preference for nonliturgical religions and targets members of the Catholic, Orthodox or Jewish faiths. The court interpreted the regulation as permitting hand-held accessories including religious objects such as hand-held chuppas, chalices, and small, handheld kahilis.

Suit Challenges NYPD Surveillance of Muslim Communities

Yesterday, a group of Muslim organizations, Muslim-owned businesses and individuals filed suit in federal district court in New Jersey to challenge the New York Police Department's program of secretly infiltrating and monitoring Muslim religious institutions, schools, businesses, associations, and congregations around New York City. The complaint (full text) in Hassan v. City of New York, (D NJ, filed 6/6/2012), charges that the NYPD program impermissibly discriminates against plaintiffs because of their religion and intentionally denigrates Islam:
The NYPD Program is founded upon a false and constitutionally impermissible premise: that Muslim religious identity is a legitimate criterion for selection of law-enforcement surveillance targets, or that it is a permissible proxy for criminality, and that the Muslim community can therefore be subject to pervasive surveillance not visited upon any other religious group or the public at large.
The lawsuit seeks a declaratory judgment, an injunction against continuation of the program and asks that all records of plaintiffs made through unlawful spying be expunged. It also asks for nominal damages and attorneys' fees. Muslim Advocates issued a press release announcing the filing of the lawsuit.  The Wall Street Journal reports on the lawsuit.

UPDATE: An amended complaint was filed on Oct. 3, 2012. Center for Constitutional Rights has links to subsequent pleadings in the case.

Suit Claims Anti-Gay Discrimination By Doctor On Religious Grounds

In New Jersey, an HIV-positive gay man has filed suit against a hospital under the state's Law Against Discrimination charging that his treatment was delayed and he suffered embarrassment and humiliation as a result of discrimination against him on the basis of his sexual orientation and/or his HIV-positive status. The state-court complaint (full text) in Simoes v. Trinitas Regional Medical Center, (NJ Super., filed 5/23/2012) alleges that shortly after plaintiff was admitted to the hospital's mental health wing, he was approached by Dr. Susan Borga, who walked out on him after she learned that he contracted HIV from unprotected sex with men. The complaint alleges the Dr. Borga hung up the phone on plaintiff's HIV doctor, telling him: "This is what he gets for going against God's will."  The complaint faults the hospital for failing to promulgate or enforce an anti-discrimination policy. Courthouse News Service reports on the case. [Thanks to Scott Mange for the lead.]

Idaho Says Vodka's Label Could Be Offensive To Mormons; Decision Challenged On Constitutional Grounds

Jonathan Turley reports that yesterday, on behalf of his client Ogden's Own Distillery, he wrote the director of the Idaho Liquor Division objecting on 1st and 14th Amendment grounds to the state's refusal to approve the sale of "Five Wives Vodka" in Idaho. (Full text of letter.) A Liquor Division official said that an important factor in the denial is that the name and packaging could be offensive to members of the Church of Jesus Christ of Latter-Day Saints, as well as to women. The Distillery argues that the refusal violates the Establishment Clause, denies free speech, due process and equal protection, and violates the commerce clause.

UPDATE: Jonathan Turley reports that in a letter sent May 6, Idaho has agreed to lift its ban on special orders of Five Wives Vodka and is prepared to consider approving general listing for the vodka at the Liquor Division's next meeting with brokers in July. [Thanks to Don Byrd for the update lead.]

Wednesday, June 06, 2012

New Science May Modify Debate On Contraceptive Coverage Mandate

Surprising scientific disclosures in a lengthy New York Times article today could change the debate over the Obama administration's health insurance contraception coverage mandate. The free exercise challenges to the mandate have been given special force because the mandate covers Plan B and Ella-- so-called morning-after pills-- which until now had been thought by most of the public to prevent implantation of a fertilized egg in the wall of the uterus.  That is seen by many objectors as equivalent to abortion. (Background.) The Times discloses however that this is not the way the morning-after pill works.  Instead it delays ovulation.  The article traces how the information on preventing implantation came to appear on FDA-required labels. However, Richard Doerflinger, associate director of the Secretariat of Pro-Life Activities for the United States Conference of Catholic Bishops says: "So far what I see is an unresolved debate and some studies on both sides...."

9th Circuit Denies En Banc Review In Proposition 8 Case

As reported by The Recorder, the U.S. 9th Circuit Court of Appeals yesterday denied en banc review in Perry v. Brown.  In the case in February, a 3-judge panel (by a 2-1 vote) struck down Proposition 8 that eliminated the right for same-sex couples to marry. (See prior posting.) However the court stayed the mandate in the case pending any petition to the Supreme Court for review and until final disposition by the Supreme Court. In denying en banc review, the 9th Circuit issued an order along with a dissent by 3 judges, plus a response to the dissent by two others. (Full text.) The dissent, written by Judge O'Scannlain, said in part:
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same sex marriage as a policy matter.  Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”  
Today our court has silenced any such respectful conversation.  Based on a two-judge majority’s gross misapplication of Romer v. Evans, 517 U.S. 620 (1996), we have now declared that animus must have been the only conceivable motivation for a sovereign State to have remained committed to a definition of marriage that has existed for millennia....  Even worse, we have overruled the will of seven million California Proposition 8 voters based on a reading of Romer that would be unrecognizable to the Justices who joined it, to those who dissented from it, and to the judges from sister circuits who have since interpreted it.
The response, written by Judge Reinhardt expressed puzzlement over the dissenters' "unusual reliance on the President’s views regarding the Constitution, especially as the President did not discuss the narrow issue that we decided in our opinion."

New Ontario Anti-Bullying Law Generates Catholic Opposition Over Required "Gay-Straight Alliances" In Schools

The Toronto Globe and Mail reports that yesterday Ontario's Legislative Assembly passed by a vote of 65-36 the third and final reading of Bill 13, the Accepting Schools Act (full text). The bill will become law later this month when it receives Royal Assent. The law, which is designed to prevent and punish bullying in government funded Catholic schools as well as public schools, has generated opposition from from the Assembly of Catholic Bishops of Ontario because of its requirement that all schools support "activities or organizations that promote the awareness and understanding of, and respect for, people of all sexual orientations and gender identities, including organizations with the name gay-straight alliance...."  As reported by an earlier Globe and Mail article, Catholic schools want to be able to use a different name for student clubs that encourage respect for all students, objecting to the use of the word "gay" or "rainbow" in the names of the groups. The controversy is apparently part of the larger debate over government funding of Catholic schools in Ontario.

Churches Challenge Philadelphia's Ban On Feeding Programs In Parks

In Pennsylvania, a group of churches and church leaders have filed suit in federal district court challenging the constitutionality of regulations and policies adopted by Philadelphia's city government in anticipation of the opening of the Barnes Foundation's relocated art collection in downtown Philadelphia.  The new regulations operate to close down the churches' decade-long programs of feeding of the homeless outdoors in Philadelphia's public parks.  The complaint (full text) in Chosen 300 Ministries, Inc. v. City of Philadelphia, (ED PA, filed 6/5/2012), alleges that these governmental actions were designed to remove the food program and homeless persons from the vicinity of a new art gallery in order to bolster the city's public image.  Plaintiffs claim the city's action violate their 1st Amendment free exercise and free speech rights, as well as their rights under the Pennsylvania Religious Freedom Protection Act. The complaint claims that the regulations target religiously sponsored feeding programs, while creating exceptions to permit social, family or business picnics, and  outdoor commercial food service. The ACLU issued a press release announcing the filing of the lawsuit.

Tuesday, June 05, 2012

7th Circuit: No Taxpayer Standing To Challenge Bald Knob Cross Grant

In Sherman v. State of Illinois, (7th Cir., June 4, 2012), the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacks taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state.  Under the Supreme Court's decision in Hein v. Freedom from Religion Foundation, Inc., taxpayers have standing to bring an Establishment Clause challenge only where funds have been spent pursuant to a legislative mandate, and not where the spending decision was an administrative one under a general appropriation. The 7th Circuit held that the procedure in Illinois under which an administrative agency makes grants from a general appropriation pursuant to patronage-based decisions from legislative political leaders is not the same as a specific legislative appropriation. The court said:
It is not enough to say that Friends was "specifically selected" by the legislative leadership for the grant, as we see no room in the Supreme Court’s decisions for the Realpolitik approach that Sherman urges.
(See prior related posting.)

Kuwaiti Trial Court Sentences Man To 10 Years For Blasphemous Tweets

Christian Post reported yesterday that a Kuwaiti trial court has sentenced 26-year old Hamad al-Naqi to 10 years in prison for making insulting comments about Islam on Twitter.  According to Gulf News, prosecutors charged that between February 5 and March 27, al-Naqi posted comments and tweets that insulted Prophet Mohammad, his companions Abu Baqer, the first Caliph, and Omar, the second caliph, and his wife Aisha. He also, it was charged, insulted the political regimes in two Gulf Cooperation Council countries. Al-Naqi claims that he did not compose the tweets, and that his account was hacked.  Al-Naqi's lawyer says they will appeal and are optimistic about their chances of success.

Refusing To Provide Photography Services To Same-Sex Ceremony Violates State Anti-Discrimination Law

In Elane Photography, LLC v. Willock, (NM Ct. App., May 31, 2012), a New Mexico state appeals court held that a photography firm's refusal to provide its services to photograph a same-sex commitment ceremony violates the New Mexico Human Rights Act's prohibition on discrimination in public accommodations on the basis of sexual orientation.  According to the court:
Elane Photography’s owners are Christians who believe that marriage is a sacred union of one man and one woman.  They also believe that photography is an artistically expressive form of communication and photographing a same-sex commitment ceremony would disobey God and the teachings of the Bible by communicating a message contrary to their religious and personal beliefs.
Rejecting Elane Photography's free expression arguments, the court held:
the mere fact that a business provides a good or service with a recognized expressive element does not allow the business to engage in discriminatory practices.... While Elane Photography does exercise some degree of control over the photographs it is hired to take... this control does not transform the photographs into a message from Elane Photography.
The court also rejected Elane Photography claim that applying the Human Rights Act to it would violate its free exercise of religion protected by the U.S. and New Mexico constitutions. It held that the statute is a neutral law of general applicability. Finally it rejected a claim under the New Mexico Religious Freedom Restoration Act, concluding that it applies only to suits in which government agencies are the adverse parties, not to suits against a private individual or business.  Volokh Conspiracy has an extensive discussion of this aspect of the case, as well as a posting on its more general holding.

Judge Wechsler filed a concurrence in the case, arguing that the New Mexico constitution's free exercise clause is broader than that in the First Amendment, but also concluding that Elane Photography had not properly preserved that issue for appeal. WND reports on the decision.

Defendant Says Threatening Letter Was Divinely Inspired

Last year the U.S. Department of Justice filed a civil lawsuit against Kansas resident Angel Dillard under the Freedom of Access to Clinic Entrances Act.(Full text of complaint.) She was charged with sending a threatening letter to a Wichita doctor who is training to provide abortion services.  The letter, which warned that some day explosives may be placed under the doctor's car, was a particular concern because Dillard had befriended Scott Roeder after he was convicted of murdering abortion provider Dr. George Tiller. (See prior related posting.) Yesterday AP reported that Dillard has now filed a counterclaim, contending that "she was inspired by God" to send the threatening letter. She believes that her message was "divinely inspired" and should be within the 1st Amendment's protection of speech and religion. Dillard says that the government's lawsuit and related publicity led to her losing ministry positions at her church and at the Sedgwick County Detention Center
.

Monday, June 04, 2012

8th Circuit: Trial Court Must Consider RFRA Challenges To Contempt Citations

In United States v. Ali, (8th Cir., June 4, 2012), the U.S. 8th Circuit Court of Appeals vacated 19 criminal contempt citations issued by a Minnesota federal district court against a Muslim defendant who, for religious reasons, refused to stand when the court convened and recessed.  The disputed conduct occurred during defendant's trial for providing material support to a designated foreign terrorist organization. After defendant failed to stand at the status conference for her case, the trial court had issued a specific order requiring all parties to follow the Rules of Decorum set forth by the Court.  The 8th Circuit held that the district court, in rejecting defendant's challenge to the order, had considered her 1st Amendment challenges, but had failed to consider her challenges under the Religious Freedom Restoration Act:
Because the district court applied only a First Amendment analysis, it never evaluated whether the pretrial order was  the least restrictive means to achieve a compelling government interest, as required by RFRA.
The 8th Circuit, however, upheld defendant's criminal contempt conviction on the first contempt citation against her, because she had at that point disobeyed the trial court's order without formally challenging it. AP reports on the decision.

6th Circuit Rejects Establishment Clause Challenge To AIG Bailout On Standing Grounds

In Murray v. U.S. Department of Treasury, (6th Cir., June 1, 2012), the U.S. 6th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to the federal government's 2008 bailout of American International Group, Inc. (AIG). Plaintiff complained that federal dollars were committed to a company whose subsidiaries market and sell Sharia-compliant financial products. The district court dismissed on the merits, finding that the government had a secular purpose and did not become excessively entangled in religion. (See prior posting.) The 6th Circuit affirmed the dismissal but instead relied on plaintiff's lack of standing, finding that the challenged spending resulted from executive branch decisions, not a specific Congressional mandate.

Recent Articles of Interest

From SSRN:
From SmartCILP:
From Engage: Vol. 13, Issue 1 (March 2012):

Sunday, June 03, 2012

Chinese Clamp Down On Tibetan Monastery Leads To Wave of Self-Immolations

Today's New York Times reports that Chinese control of the Kirti Monastery in Tibet and the city of Ngaba in which the monastery is located has led to the largest wave of self-immolations in modern history.  At least 38 Tibetans have set themselves afire since 2009.  Of those, 15 were monks or former monks from Kirti. A Chinese occupation of the monastery has radicalized it over the last four years.

Harsh Islamic Law Imposed In Northern Mali

The New York Times today reports on the dismal situation in Timbuktu, in northern Mali, since Islamists have taken over. It explains:
All of northern Mali, an area the size of France, has been in the hands of a loose coalition of Islamists and nomadic Tuareg rebels since late March, when resistance by the Malian Army collapsed after a coup d’état by junior military officers in the capital.
Since the takeover, however, the Islamists of Ansar Dine, supported by Al Qaeda, have gained the upper hand over the Tuaregs, and they are aggressively promoting their brand of Islamic law.
The paper summarizes the situation:
Women are now forced to wear full, face-covering veils. Music is banned from the radio. Cigarettes are snatched from the mouths of pedestrians. And the look of the ancient mud-brick town is changing. A centuries-old monument, the shrine of a 15th-century saint, has been defaced; bars have been demolished; and black flags have been hung around town to honor Ansar Dine, or Defenders of the Faith, the radical Islamist movement that emerged from the desert and turned life upside down.

Recent Prisoner Free Exercise Cases

In Ekene v. Cash, 2012 U.S. Dist. LEXIS 74786 (CD CA, May 30, 2012), a California federal district court adopted a magistrate's recommendations (2011 U.S. Dist. LEXIS 155244, Sept. 13, 2011)  and dismissed, with leave to amend, an inmate's complaint that a correctional officer confiscated his Bible when he was placed on management cell status, thereby depriving him of the opportunity to do his daily devotions.

In Morris v. Yates, 2012 U.S. Dist. LEXIS 74896 (ED CA, May 30, 2012), a California federal magistrate judge, in recommending a denial of an inmate's habeas corpus petition, concluded that petitioner had not shown that he was prejudiced at trial by the prosecutor wearing a small cross as a necklace.

In Cullen v. Illinois Department of Human Services, 2012 U.S. Dist. LEXIS 75483 (CD IL, May 31, 2012), an Illinois federal district court dismissed, with leave to file an amended complaint, a lawsuit by a former inmate challenging the Illinois correctional system's endorsement, funding, and implementation of a 12-step program based on Alcoholics Anonymous' religious model.

In Johnson v. Randle, 2012 U.S. Dist. LEXIS 75080 (SD IL, May 31, 2012), a Buddhist inmate, on a Locto-Ovo-Vegetarian diet for religious reasons, was permitted to move ahead with his free exercise and RLUIPA claims for injunctive relief.  Plaintiff claims that his religious exercise is burdened by a prison rule that requires those on special diets to to to the back of the chow line and receive their meals last. This gives him inadequate time to eat, thus, he alleges, pressuring him to  abandon his religious beliefs.

In Kruger v. Kaemingk, 2012 U.S. Dist. LEXIS 75640 (D SD, May 30, 2012), a South Dakota federal district court permitted an inmate to move ahead with his complaint that prison officials have refused his requests for a place and time to conduct Messianic Jewish worship services.

9th Circuit: Tribe Delays Mining Under Endangered Species Act Because of Religious and Spiritual Concerns

In Karuk Tribe of California v. United States Forest Service, (9th Cir., June 1, 2012), the U.S. 9th Circuit Court of Appeals en banc agreed with the federal district court that the Karuk Indian Tribe has standing to challenge the continuation of gold mining operations along the Klamath River and its tributaries because these operations may, among other things, impact the Tribe’s ability to enjoy the spiritual, religious, subsistence, recreational, wildlife, and aesthetic qualities of the areas affected by the mining operations. Then in a 7-4 decision, the majority held that the Forest Service violated the Endangered Species Act when it allowed mining operations to proceed in areas of critical habitat for coho salmon without first consulting appropriate wildlife agencies. The New York Times reports on the decision.

Court Rules Town Meeting Prayer Violates Vermont Constitution

In Hackett v. Town of Franklin, (VT Super. Ct., May 29, 2012), a Vermont trial court held that a town's practice of including a prayer at its town meetings violates Art. 3 of the Vermont constitution that prohibits a person from being "compelled to attend any religious worship." The prayer was regularly led by a local Christian minister. The court enjoined the town from continuing such prayers in the future, and it also scheduled a further hearing on damages that should be awarded to plaintiff. However, the court held that town meeting prayer does not violate the "compelled support" clause of Vermont's constitution (Art. 3) nor its statutory prohibition on religious discrimination in public accommodations. A release from the Vermont ACLU reports on the decision, and links to all the pleadings in the case.

Court Upholds City's Holiday Display and Rejection of Anti-Religious Sign

In Freedom from Religion Foundation, Inc. v. City of Warren, Michigan, 2012 U.S. Dist. LEXIS 75464 (ED MI, May 31, 2012), a Michigan federal district court upheld Warren, Michigan's 2011 holiday display in the Atrium entrance area of city hall. The display included a Nativity scene, but the mayor refused to include an FFRF sign that read in part: "There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but myth and superstition...."  The court concluded that the holiday display was overwhelmingly secular in nature, despite the inclusion of the Nativity scene, and that the FFRF sign was properly excluded from the display, which was a limited public forum:
[T]he Mayor sets forth permissible bases for denial—that the Sign was meant to counter the Nativity Scene, not celebrate the holiday season, and that the anti-religious language of the sign, in this context, could lead to a disruption of city business. There is nothing indicating the Mayor denied placement of the Sign solely in defense of religion; religion was simply not the appropriate subject-matter.

Southern Baptist Public Policy Spokesman Reprimanded For Trayvon Martin Comments

Baptist Press reported on Friday that the executive committee of the Southern Baptist Convention's Ethics & Religious Liberty Commission has issued two reprimands to Richard Land, president of the Commission and its prominent spokesman on public policy issues.  The reprimands grew out of Land's comments on March 31 regarding the Trayvon Martin shooting.  The comments, made on Land's March 31 radio show, "Richard Land Live!", criticized African-American leaders such as Jesse Jackson, Al Sharpton and Louis Farrakhan (April 10 Baptist Press report), saying: that "they need the Trayvon Martins to continue their central myth: America is a racist and an evil nation. For them, it's always Selma, Ala., circa 1965. They haven't noticed that the nation has changed."  Land contended that criticism by African-American leaders was politically motivated:
Instead of letting the legal process take its independent course, race mongers are anointing themselves judge, jury and executioners.... This is being done to try to gin up the black vote for an African American president who is in deep, deep, deep trouble for reelection and who knows that he cannot win reelection without getting the 95 percent of blacks who voted for him in 2008 to come back out and show that they're going to vote for him again,
Land issued a length apology on May 9, a week after meeting with key Baptist African-American clergy. The reprimands issued Friday criticized Land's "hurtful, irresponsible, insensitive, and racially charged words" and also criticized his lifting of those remarks from a Washington Times column without attribution. The Executive Committee also indicted that it is terminating Land's radio show.

Friday, June 01, 2012

Virginia County Again Modifies Display of 10 Commandments In School

As previously reported, the ACLU last year filed suit in a Virginia federal district court on behalf of a high school student and the student's parent challenging the posting of Ten Commandments displays in the Giles County, Virginia Public Schools. Last month, the judge ordered the case to mediation. (See prior posting.) Now, according to the Roanoke Times, the Giles County School Board yesterday voted unanimously to replace the Ten Commandments text that is displayed at Narrows High School with a copy of a page from a history textbook captioned "Roots of Democracy".  That page includes a depiction of the Ten Commandments tablets, but without the full text of the Commandments, with the explanation: "The values found in the Bible, including the Ten Commandments and the teachings of Jesus, inspired American ideas about government and morality." The page also depicts Greco-Roman, Enlightenment, and English Parliamentary roots of American government.  This is the third version of the Ten Commandments display, as the School Board struggles with how to respond to legal challenges. (See prior posting.)  [Thanks to Scott Mange for the lead.]

Hate Crimes Prevention Act Is Constitutional and Covers Intra-Religious Violence

In United States v. Mullet, (ND OH, May 31, 2012), an Ohio federal district court upheld the constitutionality of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act against commerce clause and First Amendment challenges.  The case involves the indictment of 16 members of an Amish community led by Sam Mullet who are charged with attacking and cutting off the beards and hair of members of a rival Amish community who did not comply with Mullet's directives. (See prior posting.) The court held that because the Hate Crimes law requires an explicit nexus between defendants conduct and interstate commerce, it is a constitutional exercise of Congress' lawmaking power. The court also rejected a claim that the statute infringes defendants' freedom of expression and free exercise of religion, saying that "the First Amendment has never been construed to protect acts of violence against another individual, regardless of the motivation or belief of the perpetrator."  The court rejected defendants' claim that the Hate Crimes Prevention Act does not cover intra-religious violence. The court said:
While hate crimes are often committed by members of one religious (or racial or ethnic) group against another, history is replete with examples of internecine violence. 

Finally, the court rejected the argument that the Hate Crimes Prevention Act violates the Religious Freedom Restoration Act. AP reports on the decision.

Online Resource On Challenges To Health Insurance Contraceptive Services Mandate Launched

As reported by Eurasia Review, the Becket Fund last week launched the HHS Mandate Information Central, an online resource for reporters and the public on the 23 separate lawsuits that have been filed to challenge the federal mandate that health insurance policies cover contraceptive services. The webpage links to legal documents, press releases and other materials for each case, as well as furnishing more general background material on the mandate.

Suit Challenges High School Graduation Prayer Policy

The Freedom From Religion Foundation announced Wednesday that it, along with one of its members who is a graduating senior at Irmo High School, has filed a federal lawsuit suit against a South Carolina school district challenging the district's policy that allows a student vote each year on whether or not to have prayer at the high school graduation ceremony.  The complaint (full text) in Nielson v. School District Five of Lexington & Richland Counties, (D SC, filed 5/30/2012), alleges that the policy violates the Establishment Clause and Equal Protection Clause. The district superintendent had told plaintiff, when he complained about the policy: "while I am a staunch supporter of the separation of Church and State, I do not believe that Freedom of Religion should be interpreted as requiring Freedom from Religion within the public schools." Cranston Patch reports on the lawsuit.

Obama Speaks At White House Reception For Jewish American Heritage Month

President Obama spoke on Wednesday at a reception in the East Room of the White House marking Jewish American Heritage Month. (Full text of remarks.) In his remarks, he reminded his audience of a sometimes forgotten episode in American history:
This year, we celebrate ... Jewish American Heritage Month, and we're also commemorating an important anniversary. One hundred-fifty years ago, General Ulysses Grant issued an order –- known as General Orders Number 11 –- that would have expelled Jews, “as a class,” from what was then known as the military department of the Tennessee.  It was wrong.  Even if it was 1862, even if official acts of anti-Semitism were all too common around the world, it was wrong and indicative of an ugly strain of thought.
But what happened next could have only taken place in America. Groups of American Jews protested General Grant’s decision.  A Jewish merchant from Kentucky traveled here, to the White House, and met with President Lincoln in person.  After their meeting, President Lincoln revoked the order -- one more reason why we like President Lincoln.  (Laughter and applause.)
And to General Grant’s credit, he recognized that he had made a serious mistake.  So later in his life, he apologized for this order, and as President, he went out of his way to appoint Jews to public office and to condemn the persecution of Jews in Eastern Europe.