Presidential Delegation Attends Canonization of 2 Americans, 5 Others

Yesterday in Rome, Pope Benedict XVI celebrated a special mass to canonize 7 individuals, including two Americans. (Full text of Pope's homily.) As reported by CNN, the Americans are the first Native American saint, 17th century Mohawk Kateri Tekakwitha; and  German-born Marianne Cope, who came to the U.S. as a child, became a nun and devoted 30 years to helping lepers in Hawaii. Last week, President Obama announced a Presidential delegation to attend the canonization mass: the U.S. ambassador to the Vatican, Miguel Humberto Diaz; Sister Agnelle Ching, an official with the Saint Francis Healthcare System of Hawaii; and Sister Kateri Mitchell, director of the Tekakwitha Conference whose patroness is the newly named saint.

Bible Club's Equal Protection Claim Dismissed For Lack of Standing

In Youth Alive v. Hauppauge School District, (ED NY, Oct. 12, 2012), a New York federal district court dismissed for lack of standing a claim by a high school after-school Bible club that the school board violated the Equal Protection clause when, in order to comply with the federal Equal Access Act, it refused to furnish the club a paid advisor. Instead the board required the club to have a volunteer advisor.  In finding no injury-in-fact and dismissing the claim, the court said:

The use of an unpaid supervisor to monitor Youth Alive meetings has had no discernible effect on Plaintiffs' ability to exercise their First Amendment rights..... Plaintiffs speculate that a paid advisor would be less likely to cancel meetings than an unpaid advisor, which, in theory, could affect their rights to free speech and exercise of religion.... But the parties stipulated that, unlike all other clubs, if Youth Alive's unpaid supervisor cannot attend a meeting, Defendants provide a substitute volunteer to supervise the students.... Youth Alive, then, very well may be able to conduct more meetings than non-religious clubs.  In  any event, the evidence shows at most three cancelled meetings..., which is comparable to clubs with paid advisors.

Recent Articles of Interest

From SSRN:

• Jerg Gutmann, Causes of Corruption in Religious Organizations, (October 19, 2012).
• Caroline Mala Corbin, The Contraception Mandate, (Northwestern University Law Review Colloquy, Vol. 106, Forthcoming).
• Charlton C. Copeland, Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology, (Law and Contemporary Problems, Vol. 75, No. 4, 2012).
• Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's Contraception Coverage Mandate, (American Constitution Society for Law and Policy Issue Brief, Oct. 18, 2012).
• Menachem Mautner, Religion in Politics: Rawls and Habermas on Deliberation and Justification, (Hanoch Dagan, Yedidia Z. Stern and Shachar Lifshitz eds., The Israel Democracy Institute, 2013).
• Wassim Rajhi, Islamic Finance, Distress and Restructuring: Lessons from Asian Financial Crises, (October 17, 2012).
• Roberta Rosenthal Kwall, Is the Jewish Tradition Intellectual Property?, (4 WIPO Journal, Forthcoming).

From SmartCILP:

• Rex Ahdar, Regulating Religious Coercion, [Abstract], 8 Stanford Journal of Civil Rights & Civil Liberties 215-243 (2012).
• Yaseen Eldik and Monica C. Bell, The Establishment Clause and Public Education in an Islamophobic Era, [Abstract], 8  Stanford Journal of Civil Rights & Civil Liberties 245-258 (2012).
• Mary Ann Glendon, Harold J. Berman Lecture. Religious Freedom--A Second-Class Right?, 61 Emory Law Journal 971-990 (2012).
• Myriam Hunter-Henin, Why the French Don't Like the Burqa: Laicite, National Identity and Religious Freedom, [Abstract], 61 International & Comparative Law Quarterly 613-639 (2012).
• John Witte, Jr. and Don S. Browning, Christianity's Mixed Contributions to Children's Rights: Traditional Teachings, Modern Doubts, 61 Emory Law Journal 991-1014 (2012).

Recent Prisoner Free Exercise Cases

In Peterson v. Lampert, (10th Cir., Oct. 15, 2012), the 10th Circuit dismissed an inmate's due process, free exercise and RLUIPA complaints growing out of the loss of religious personal property, including a crystal wand, tarot cards, feathers, incense, a prayer cloth, and a satanic Bible, after a transfer from one facility to another.

In  White v. Lindermen, 2012 U.S. Dist. LEXIS 150107 (D AZ, Oct. 18, 2012), an Arizona federal district court denied a Messianic Jewish inmate a preliminary injunction he sought to allow his family members to purchase religious items, including incense, scented oils, candles, a kippah, a talit, and herbs, for him from a vendor.

In McDaniel v. Fizer, 2012 U.S. Dist. LEXIS 147900 (D AZ, Oct. 15, 2012), an Arizona federal district court dismissed, with leave to amend, a Muslim inmate's complaint that his lacto-vegetarian diet was replaced by a vegan diet, and that he was being denied a kosher diet.

In Coulter v. Studeny, 2012 U.S. Dist. LEXIS 147230 (WD PA, Oct. 12, 2012), a Pennsylvania federal district court largely adopted a magistrate' recommendations (2012 U.S. Dist. LEXIS 150473, Sept. 21, 2012) and, among other things, rejected plaintiff's claim that her free exercise rights were violated by a special condition of her probation. She claimed that a 10 p.m. to 6 a.m. curfew prevented her from attending unspecified religious services.

In Rice v. Curry, 2012 U.S. Dist. LEXIS 134284 (ND CA, Sept. 18, 2012), a California federal district court dismissed without prejudice for failure to exhaust administrative remedies a claim by an inmate who was a member of the Muslim Ansar El Mohammad faith that AEM Muslims were not provided a Suhoor meal during Ramadan. The court dismissed on the merits plaintiff's complaint that AEM Muslims were not granted separate access to the interfaith chapel and that the prison refused to hire an AEM imam.

In Palermo v. Libby, 2012 U.S. Dist. LEXIS 148577 (D NH, Sept. 12, 2012), a New Hampshire federal magistrate judge recommended that an inmate be permitted to proceed with his free exercise and RLUIPA claims that he was denied a religious diet, religious reading materials, and ritual items, and an equal protection claim that he was denied religious reading materials and ritual items.

House of Lords Debates Placing Restrictions On Sharia Arbitration Panels

As reported today by The Telegraph, in Britain on Friday the House of Lords debated a bill to place restrictions on Sharia arbitration tribunals. (Full text of Lords' debate.) The proposed Arbitration and Mediation Services (Equality) Bill would add several provisions to British law. The Equality Act would be amended to prohibit anyone providing arbitration services from doing anything that constitutes discrimination, harassment or victimization on grounds of sex. The Arbitration Act would be amended to bar any arbitration agreement or process that gives more weight to the testimony of men than women, or which gives women fewer inheritance or property rights. The amendments would also exclude from arbitration anything within the jurisdiction of the criminal or family courts. The Family Law Act would be amended to allow a court to set aside any negotiated or mediated agreement if it concludes that one party's consent was not genuine. The proposed bill also takes aim at informal Sharia councils that deal with divorce and child custody.  It prohibits anyone from purporting to determine family law or criminal maters in arbitration, and from falsely purporting to exercise the power of a court to make legally binding rulings.

Miami Archdiocese Sues Over Contraceptive Coverage Mandate

On Friday, the Catholic Archdiocese of Miami announced that, along with its Catholic Health Services and Catholic Hospice, it has filed a federal lawsuit against the Department of Health and Human Services challenging the contraceptive coverage mandate imposed under the Affordable Care Act. It says that because the Archdiocese is self-insured, the Obama administration's compromise announced in February to have insurance companies pay for objectionable services is not a solution.  In remarks (full text), Archbishop Thomas Wenski said that the suit joins nearly 50 other across the country filed by Catholic dioceses, charities,  hospitals and schools, in coordination with the Jones Day law firm that is providing its services pro bono. At a news conference, the Archbishop said that the Catholic Church supports universal health care, but a plan "should kill no one and it should cover everyone." He added that the Affordable Care Act fails this test by requirmg employers to provide drugs and services that result in the killing of unborn children, and,on the other hand, excluding "millions of immigrants." Catholic News Agency reports on the lawsuit.

School Quickly Ends Pastor's Access To Cafeteria After Suit Is Filed

Within minutes after a lawsuit was filed by the ACLU yesterday, a Fort Wayne, Indiana middle school agreed to stop its practice of allowing a local youth pastor to regularly visit the school's cafeteria during lunch, where he stands in a prominent place, hands out materials and talks with students who are required to eat in the cafeteria.  The Fort Wayne News-Sentinel reports that the suit was filed by parents of an 11-year old who attends Summit Middle School in the Southwest Allen County school district who say no other outsider is given this kind of access to the cafeteria. The ACLU says the lawsuit will be dropped once it receives formal notice from the school district that it is changing its practices.

IRS Has Suspended Church Audits Until Rule Changes Are Finalized

BNA Daily Report for Executives dated 10/22/2012 (subscription required) reports that the Internal Revenue Service has temporarily suspended tax audits of churches pending final adoption of IRS rule changes to clarify which high level Treasury official has authority to make a determination under IRC Sec. 7611 that there are reasonable grounds to begin a church tax inquiry. (See prior posting.) At an American Law Institute Continuing Legal Education conference, IRS speaker Russell Renwicks, area group manager from the Mid-Atlantic region of the Tax-Exempt and Government Entities division, said the IRS has been bombarded with complaints about churches becoming involved in the elections, but it has been unable to respond even to potentially egregious cases. The rule changes are necessitated by a 2009 Minnesota federal district court ruling. (See prior posting.)

Another Suit Challenges Contraceptive Coverage Mandate of ACA

Yesterday, yet another federal lawsuit was filed challenging on RFRA, 1st Amendment and Administrative Procedure Act grounds the contraception coverage mandate under the Affordable Care Act.  The complaint (full text) in Griesedieck v. U.S. Department of Health and Human Services, (WD MO, filed 10/19/2012), alleges that the two individual plaintiffs, who are Evangelical Christians, own a controlling interest in four industrial companies that employ a total of 175 people. Citing the requirement that the companies' policies cover drugs that have a post-fertilization mechanism of action (such as Plan B and Ella), plaintiffs assert that:

As evangelical Christians, Plaintiffs believe in the sanctity of human life from the moment of conception.  They believe it would be sinful to for them to pay for services that have a significant risk of causing the death of embryonic human lives.

American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

In Mali, Islamists Destroy Historic Tombs They Consider Idolatrous

According to CNN, in northern Mali, for the fourth time this year al-Qeda linked Ansar Dine rebels have destroyed historic tombs. Some 30 armed fighters arrived in Timbuktu yesterday to reinforce local Islamists and destroyed three mausolea that have been designated by the United Nations as World Heritage Sites. The Islamists consider these Sufi shrines to be idolatrous and thus religiously prohibited.

Appeals Court: Accused Ft. Hood Shooter Can Be Forcibly Shaved

Accused Fort Hood shooter, Maj. Nadal Hasan, who has been seeking the right to wear a beard for religious reasons at his court martial trial, lost yesterday in the U.S. Army Court of Criminal Appeals.  In Hasan v. United States, (Army Ct. Cr. App., Oct. 18, 2012), an opinion of 5 judges held that Hasan's petition for a writ of prohibition should be denied. Hasan sought to prevent the government from forcibly shaving him after the military judge at his court martial ordered Hasan to be clean shaven for all subsequent pretrial proceedings and for his trial. (See prior posting.)  The majority concluded that the trial judge did not commit clear error in  concluding that Hasan was not necessarily growing his beard for religious reasons. The majority went on to hold that even if Hasan demonstrated that he was wearing a beard out of sincere religious conviction, the Army has compelling interests in requiring him to shave, and no less restrictive means are available to accomplish these interests:

The Army has a compelling interest to ensure uniformity, good order and discipline.... The Army has a further interest in the fair and proper administration of military justice. We agree with the military judge's conclusion that petitioner's wearing of the beard denigrates the dignity, order and decorum of the court martial and is disruptive under the current posture of the case.  Furthermore, in front of a military panel, it is undeniable that petitioner's failure to comply with Army grooming regulations without explanation of a suitable exception would cast him in a negative light. In this respect, the military judge has the authority ... to safeguard petitioner against the injection of prejudice into the court-martial process as a result, even where petitioner consents to that prejudice.

Two judges joined in an opinion dissenting in part, arguing that the court-martial judge should have merely ordered the government to ensure that the defendant was in proper uniform for the trial, leaving decisions about forced shaving or granting an exception to grooming regulations to the chain of command. The dissenters would not only grant the writ of prohibition invalidating the military judge's order, but would also disqualify the judge from further participation in the case because his action reasonably put into question his impartiality. Stars and Stripes reports on the decision.

Court Issues Temporary Injunction Approving Cheerleaders' Bible Banners

Just a day after Texas attorney general filed a petition to intervene on behalf of high school cheerleaders who wish to continue to display their own banners and run-throughs featuring Bible verses (see prior posting), a Texas state trial judge issued a temporary injunction granting the cheerleaders' request.  In Matthews v. Kountze Independent School District, (TX Dist. Ct., Oct. 18, 2012), the court concluded that the school district was prohibiting private religious expression. It ordered the district to cease and desist from preventing the cheerleaders from displaying banners or run-throughs at sporting events, or censoring the sentiments displayed on them. In a press release applauding the decision, Texas Attorney General Greg Abbott said:

Students' ability to express their religious views adds to the diversity of thought that has made this country so strong. Texas law supports students' right to freely express their religious beliefs without discrimination. We will not allow groups or individuals to wage a war on religion by trying to intimidate students into embracing a secular mindset.

According to a New York Times report on the decision, an Anti-Defamation League spokesman called the decision misguided, arguing that the banners are a school-sponsored religious message.

British Court Rejects Conscience Defense In B&B Owner's Refusal To Rent Room To Gay Couple

A trial court in Britain yesterday held that a gay couple suffered unlawful discrimination when the Christian owner of a bed and breakfast, Susanne Wilkinson, refused to allow them to stay in a double room because of the her religious views. The Reading Crown Court awarded each man damages of £1800 according to the London Telegraph. The court, in finding that defendant had violated regulation 4 of the Equality Act (Sexual Orientation) Regulations 2007, said in part:

The business is conducted from her home but it is still a business with a significant number of guests. I do not agree with the submission that if the restriction is unlawful the defendant would have to remove herself from public life.

My conclusion is that the application of the regulations to the defendant bed and breakfast establishment and the finding that the refusal of the double room constituted direct discrimination, are not in breach of her [ECHR] Article 9 Rights [freedom of conscience and religion].

2nd Circuit in 2-1 Decision Finds DOMA Unconstitutional

In Windsor v. United States, (2d Cir., Oct. 18, 2012), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that Section 3 of the Defense of Marriage Act (1 USC Sec. 7) is unconstitutional under the equal protection component of the 5th Amendment. In a suit by the surviving spouse of a lesbian couple who was denied the spousal deduction under the federal estate tax law, the majority held that it must apply heightened (intermediate level) scrutiny because homosexuals are a quasi-suspect classification:

A) homosexuals as a group have historically endured persecution and discrimination; B) homosexuality has no relation to aptitude or ability to contribute to society; C) homosexuals are a discernible group with non-obvious distinguishing characteristics, especially in the subset of those who enter same-sex marriages; and D) the class remains a politically weakened minority.

None of the justifications offered for DOMA-- maintaining a uniform definition of marriage; protecting the fisc; preserving a traditional understanding of marriage; or encouraging responsible procreation-- are strong enough to justify the discrimination involved.  In concluding, Chief Judge Jacobs, writing for the majority said:

Our straightforward legal analysis sidesteps the fair point that same-sex marriage is unknown to history and tradition.  But law (federal or state) is not concerned with holy matrimony.  Government deals with marriage as a civil status--however fundamental--and New York has elected to extend that status to same-sex couples.  A state may enforce and dissolve a couple’s marriage, but it cannot sanctify or bless it.  For that, the pair must go next door.

Judge Straub dissented, arguing first that the issue is controlled by the Supreme Court's summary dismissal of a similar challenge in 1972 in Baker v. Nelson. He concluded further that DOMA should be subject only to rational basis review, and that several of the rationales advanced for the law satisfy that level of scrutiny.

AP reports on the decision. In May, the 1st Circuit also found DOMA unconstitutional. (See prior posting.)

Venice Commission Opinion Criticizes Azerbaijan Law On Religion; Government Responds

On Oct. 15, the European Union's Venice Commission  along with the OSCE's Office for Democratic Institutions and Human Rights issued a Joint Opinion (Opinion 681 / 2012) finding numerous problems with Azerbaijan's 2011 Law on Freedom of Religious Belief.  The Opinion concludes that the Law "sets a legal framework which is in several aspects contrary to international standards and would benefit from additional revisions in order to meet these standards." The Opinion sets out 15 key recommendations for change, along with 9 additional recommendations. The key recommendations include items such as expanding the law to include "belief" as well as religion, eliminating the ban on proselytism by foreigners, providing for alternative service for conscientious objectors and liberalizing restrictions on religious organizations. The government of Azerbaijan delivered its response to the Joint Opinion on Oct. 16 (full text). According to a report published in Turkish Weekly, the Head of Azerbaijani Presidential Administration Social and Political Department says he thinks that the Venice Commission now believes that the law fully meets the European standards.

8th Circuit En Banc Upholds Funeral Picketing Ordinance

In Phelps-Roper v. City of Manchester, (8th Cir., Oct. 16, 2012), the U.S. 8th Circuit Court of Appeals sitting en banc upheld against facial First Amendment challenges the current version of a Manchester, Missouri ordinance regulating picketing at funerals. The suit was brought by members of the Wesstboro Baptist Church which has a history of picketing veterans' funerals with signs deploring homosexuality.  Finding that challenges to earlier versions of the ordinance are moot, the court held that the current version is a valid content-neutral time, place, and manner regulation. The law bans picketing or other disruptive activity within 300 feet of a funeral or burial service during the period from 1 hour before to 1 hour after the service.  Applying intermediate scrutiny, the court concluded that:

mourners attending a funeral or burial share a privacy interest analogous to those which the Supreme Court has recognized for individuals in their homes... and for patients entering a medical facility.... Mourners have a similarly "significant and legitimate" interest in avoiding "potential trauma" when attending a funeral or burial....   Mourners ... must ... be in a certain place at a certain time to participate in a funeral or burial and are therefore unable to avoid unwelcome speech at that place and time.  A significant governmental interest exists in protecting their privacy because mourners are in a vulnerable emotional condition and in need of "unimpeded access" to a funeral or burial....

Judge Smith wrote a separate concurring opinion "to express concern about the extension of the unique protection afforded the sanctuary of the home to funerals and burials."  He argued that emotional offensiveness alone should not be enough to justify restriction of otherwise lawful speech. [Thanks to Steven Jamar via Religionlaw for the lead.]

Swedish Appeals Court Permits Home Schooling Of Chabad Children

According to Chabad Lubavitch News, an appellate court in Sweden yesterday struck down a law that barred Chabad parents from home schooling their children through Chabad's International Shluchim Online School and private lessons.  The law requiring all students to attend state schools except in extraordinary circumstances was originally enacted to protect immigrant children who were being denied an education and who grew up illiterate.  However, the rabbi and his wife in Gothenburg who filed the lawsuit were providing a high quality education to their children. The court said that the government's refusal to recognize religious objections to state schools contravenes Sweden's international obligations. (See prior related posting.)

Texas AG Petitions To Intervene In Case To Support Cheerleaders' Signs With Bible Verses

As previously reported, last month a Texas state court issued a temporary restraining order allowing Kountze (TX) Independent School District football cheerleaders to continue to display banners, including run-through banners, containing Bible verses. The banners are not made on school property and no school money is used to make them. The Texas Association of School Boards had advised the school district to ban the run-throughs after a complaint from the Freedom From Religion Foundation. Yesterday Texas Attorney General Greg Abbott filed a petition to intervene (full text)  in the case to support the cheerleaders. In a press release announcing the filing of the petition to intervene, Abbott referred to the Freedom From Religion Foundation as "an organization with a reputation for bullying school districts." The Houston Chronicle reports on the attorney general's action.

Church Nursery School Teacher Sues After Being Fired For Living With Fiancee

The Macon (GA) Telegraph reports on a lawsuit filed in a Georgia federal district court on Oct. 3 by a woman who claims religious and gender discrimination in her termination as nursery school coordinator at Friendship Baptist Church in Warner Robins, Georgia.  Plaintiff Jessica Atkinson says that she was asked to resign after church officials complained to her about her relationship with her fiancée, asked her what she planned to do about living in sin and whether she was being a good Christian. Before filing suit, Atkinson filed a complaint with the EEOC.

Suit Charges Evangelical Church Officials Abetted Sexual Abuse of Children By Church Members

A suit was filed yesterday in state court in Montgomery County, Maryland against six pastors and church officials of the Sovereign Grace Ministries, a group of some 80 evangelical churches. AP reports that the 3 female plaintiffs:

allege a conspiracy spanning more than two decades to conceal sexual abuse committed by church members. They accuse church representatives of permitting suspected pedophiles to interact with children, supplying them with free legal advice to avoid prosecution and forcing victims to meet with and "forgive" the person that had molested them.....

The lawsuit, filed in Montgomery County, Md., includes claims of intentional infliction of emotional distress, negligence and conspiracy, among others. It says there are other victims, both male and female, who have raised allegations but are not yet identified as named plaintiffs.

Two of the current plaintiffs allege they were abused as toddlers.

Court Rejects Biblical Objection To Conviction Under Law Defining Defendant As A "Person"

In Fond Du Lac County v. Manke, (WI App., Oct. 17, 2012), a Wisconsin state appeals court rejected an unusual religious liberty defense to a speeding ticket.  Defendant Jeffrey Manke was convicted of violating a state statute that prohibits any "person" from driving over 55 miles per hour unless a higher speed limit is posted.  Manke argued that according to the Bible, he is a "man", not a "person," so that convicting him as a person violates his religion and his due process rights. The appeals court held that as a man, defendant met the definition of person under the statute. The Fox 11 News reports on the decision.

Cert. Filed In Challenge To Ban On Carrying Firearms In Church

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in GeorgiaCarry.org, Inc. v. State of Georgia. In the case, the U.S. 11th Circuit Court of Appeals rejected constitutional challenges to a Georgia law restricting the the right to freely carry handguns, knives or long guns in 8 specific locations, including any place of worship. (See prior posting.) The petition asks the Supreme Court to review the case and rule that a law that specifically targets places of worship may violate the free exercise clause even if it does not burden a sincerely held religious belief. The Atlanta Journal Constitution reports on the filing of the cert. petition.

Mediation With Victims Fails In Milwaukee Archdiocese Bankruptcy

The Milwaukee Journal Sentinel reports that bankruptcy court-ordered mediation between the Catholic Archdiocese of Milwaukee and 575 victims of sexual abuse has failed after 3 months. Both sides confirmed on Monday that the talks have broken down. The victims represent the largest class of creditors asserting claims in the Archdiocese's Chapter 11 bankruptcy proceedings. This means that the claims will be back in court, with victims seeking to expand the assets that are considered part of the bankruptcy estate, while the Archdiocese seeks to assert defenses to reduce the number of claims eligible for compensation.

Drafts Of Proposed Egyptian Constitution Released

According to Ahram Online, two separate drafts of a proposed constitution for Egypt have been released during the last week.  The drafts, while criticized from various sides, do reflect compromises on some issues worked out between secularists and Salafists. The full text of "Part I, State and Society" as reflected in the most recently released draft has been published in English translation by Daily News Egypt. Among the proposed provisions are the following:

Article 2
Islam is the state religion, its official language Arabic, and the principles of Islamic Shari’a are the main source of legislation.

Article 3
For Egyptian Christians and Jews, the principles of their religious laws are the main source of legislation in personal and religious matters as well as in the selection of their spiritual leaders.

Article 4
Al-Azhar is an independent Islamic body and it alone addresses its internal affairs. Its scope covers the Muslim nation and the entire world. It spreads religious studies and the call to Islam. The state guarantees sufficient funds for it to achieve its goals. The law determines the method for selecting Al-Azhar’s Grand Imam, who shall be independent and cannot be removed from office.

The opinion of Al-Azhar’s Council of Grand Scholars shall be taken in matters related to Islamic Shari’a.....

 Article 10
The state is obliged to sponsor and protect ethics and public morals, empower authentic Egyptian traditions, take into account a high level of nurturing, religious and patriotic values, scientific facts, Arab culture, the historical and cultural heritage of the people, as regulated by the law....

Article 24
The state is obliged to revive and encourage the religious endowments system.

The law regulates religious endowments, determines the procedures for founding and managing them, investing them, and distributing their returns on beneficiaries as per the terms of the endowers.

Challenge To County's Prayers and In God We Trust Posting Dismissed When Plaintiff Fails To Appeaar

In Wood County, Texas yesterday, a state trial court dismissed a lawsuit that had been brought challenging the County Commissioners' routine opening of their sessions with prayer and seeking removal of the "In God We Trust" motto prominently displayed in the county commissioners' meeting room.  Plaintiff Charles Scott said he is a devout Christian and believes that elected officials cannot honor the word of God if they also honor the Constitution's freedom of religion.  According to KLTV News, the court dismissed the case for lack of evidence when Scott failed to appear in court. Scott told reporters that he was unable to go to court because the Lord did not provide him with a means to get there.

Kenyan Court Upholds High School's Ban on Hijabs

Last month, in Republic v. The Head Teacher, Kenya High School, (High Ct. Kenya, Sept. 18, 2012), the High Court in Narobi, Kenya upheld the uniform requirements of Kenya High School which bar Muslim girls from wearing the hijab. Among other things, plaintiffs argued that the ban violated provisions of Kenya's Constitution that assure equality before the law and which protect freedom of religion and bar religious discrimination. In rejected plaintiff's arguments, the court said in part:

The significant and critical role played by standardized dress codes and observance of rules in controlled environments... cannot be overemphasized.... In my view, the most important role played by a standardized school uniform is that it creates uniformity and visual equality that obscures the economic disparities and religious backgrounds of students who hail from all walks of life.

If the court were to allow the applicant’s quest to wear hijab in school, the 48 Muslim girls in the school would look different from the others and this might give the impression that the applicants were being accorded special or preferential treatment. This may in all probability lead to agitation by students who profess different faiths to demand the right to adorn their different and perhaps multi-coloured religious attires of all shapes and sizes which the school administrators will not be in a position to resist.... Such an eventuality should be avoided at all costs since it is in the public interest to have order and harmonious co-existence in schools.... 

It is important to bear in mind that the Republic of Kenya is a secular State.... [A]llowing the applicant’s prayer in this motion would in my opinion be tantamount to elevating the applicant and their religion to a different category from the other students who belong to other religions. This would in fact amount to discrimination of the other students who would be required to continue wearing the prescribed school uniform.

Kenya's Daily Nation today reports on the decision.

Vatican- Equatorial Guinea Sign Accord

Zenit reports that last Saturday an official accord was signed between the Holy See and the Republic of Equatorial Guinea recognizing the juridical personality of the Catholic Church and Church institutions. The agreement contains 19 articles and a protocol, and deals with issues such as canonical marriage, places of worship and spiritual care of the sick and imprisoned. The government of Equatorial Guinea also announced the signing of the agreement.

New Texas-Focused Religious Advocacy Group Is Launched

A new religious advocacy organization began to operate last week, as Liberty Institute announced the launch of Texas Values. The new, state-focused organization "stands for biblical, Judeo-Christian values" in Texas, emphasizing religious liberty, families and human life. A link to the new group's website has been added to the Religion Clause sidebar's listing of Advocacy Groups.

Bhutan Bans Public Religious Events For 6 Months Before Elections

AP reported yesterday on the action of the Election Commission in the small, largely Buddhist nation of Bhutan banning public religious events from Jan. 1, 2013 until Parliamentary elections (expected to be held in June 2013) are completed.  Designed to prevent the mixing of religion and politics, the Commission's Oct. 1 Notification (full text) says in part:

The Constitution of the Kingdom of Bhutan provides for the political system in Bhutan to be secular where Religion is elevated to the higher pedestal through the declaration: “Religion shall Remain Above Politics”....

We  are  hopeful that  with  your  Prayers and Blessings, the conduct of  the Second Parliamentary Elections in early 2013 will be smooth and peaceful as the First. However, as a safety and preventive measure the ECB seeks the kind indulgence and the support  of the Religious Communities  in the Kingdom  to schedule public events to be carried out only after the Parliamentary Elections are completed.

Israeli Court On Procedural Grounds Refuses To Order YouTube To Remove Anti-Muslim Video

Times of Israel reports that the District Court in Jerusalem today rejected a petition by United Arab List and a group of Arab public figures seeking an order to require Google to remove from YouTube Israel the trailer for the controversial video "The Innocence of Muslims."  While noting that removing the video from YouTube would not prevent people accessing it on other sites, the basis for the court's decision was a procedural one.  YouTube was not included as a defendant in the case. Only its parent, Google, Inc., was named in the lawsuit.

Controversial Historian Raises Question of LDS Church Influence Over Romney's Decisions

Vanity Fair today carries an article by Michael Quinn, a controversial historian of the Church of Jesus Christ of Latter Day Saints, titled When Mormons Go To Washington. It argues that

Though Mitt Romney and his supporters invoke J.F.K.’s 1960 talk, most Mormons do not believe in the America of which Kennedy spoke. He described a nation “where no public official either requests or accepts instructions on public policy from” any “ecclesiastical source.” By contrast, L.D.S. politicians (both Democrats and Republicans) have sought instructions from their church’s leaders for more than a century. Republican officeholders have been most susceptible to such political “counsel,” while L.D.S. Democrats have often objected to it—sometimes stridently.

Quinn goes on to chronicle a notable exception who strongly resisted Church pressure-- Utah Republican Senator Reed Smoot, and quotes a Romney assertion that he would never expect a call from the L.D.S. Church president, because the obligation of national officials is to the nation. Quinn, who was excommunicated from the LDS Church in 1993, ends his article with these tendentious questions:

Is there any evidence that L.D.S. headquarters has abandoned its interest in influencing the decisions of L.D.S. officeholders in Washington, D.C.? Have Mormon Republicans departed from their historical patterns of embracing political direction from the L.D.S. Church hierarchy? Is Mitt Romney an unwavering statesman who is resistant to such pressures?

Court Rejects Name Change To "ChristIsKing"

In Matter of Nawadiuko, (City of NY Civil Ct., Oct. 1, 2012), a New York trial court denied an application by a family to change their name from Nwadiuko to "ChristIsKing". The court identified two concerns:

To permit this name change would be placing unwitting members of the public including public servants in the position of having to proclaim petitioners' religious beliefs which may or may not be in agreement with that person's own equally strongly held but different beliefs....

... [P]etitioner parents were both born in Nigeria. Twelve Nigerian states have adopted Sharia law which does recognize blasphemy as a crime and has some severe punishments depending on the level of the blasphemy. If petitioners returned to an area of Nigeria enforcing Sharia law, members of the Islamic faith calling petitioners' name in those areas might be committing blasphemy under Sharia law subjecting themselves to some degree of punishment.

The court noted that the family still has the common law right to change their names without obtaining a court order, but that "in post 9-11 America, this right may be more available in theory than in practice.... Security concerns now require consistency between a person's name on a birth certificate, driver's license, passport, marriage licenses, social security cards and other common everyday forms of identification issued by various levels of government."  Volokh Conspiracy has more on the case.

Tomorrow Will Be Pro-Life Day of Silent Solidarity In Schools

According to an ADF press release, tomorrow is the date set for this year's Pro-Life Day of Silent Solidarity. The day is marked by participating students at schools in the U.S. and elsewhere wearing red tape displaying the word "LIFE" over their mouths or around their arms.  With their teachers' permission, they also remain silent throughout the day to demonstrate their concern for what they describe as the silenced voices of millions of babies through abortion. ADF has prepared a Legal Memorandum outlining students' rights to participate in the event.

Recent Articles of Interest

From SSRN:

• Andrew R, Hamilton, The New York Marriage Equality Act and the Strength of Its Religious Exceptions, (St. John's Law Review, Journal of Catholic Legal Studies, Forthcoming).
• Patrick McKinley Brennan, 'Religious Freedom,' the Individual Mandate, and Gifts: On Why the Church is Not a Bomb Shelter, (Villanova Law Review, Forthcoming).
• John D. Inazu, The Four Freedoms and the Future of Religious Liberty, (Washington University in St. Louis Legal Studies Research Paper No. 12-10-08, Oct. 2012).
• Abdulla Galadari, Behind the Veil: Inner Meanings of Women’s Islamic Dress Code, (The Journal of Interdisciplinary Social Sciences, Vol. 6, No. 11, pp. 115-125, 2012).
• Helen Pausacker, Playboy, the Islamic Defenders’ Front and the Law: Enforcing Islamic Norms in Post-Soeharto Indonesia?, (Australian Journal of Asian Law, Vol. 13, No. 1, 2012).
• Atila Yanpar, A New Approach to Derivatives: Financial Engineering with Islamic Rules, (Conference on Financial Engineering, Izmir University of Economics, 20-21 October 2011).
• Eric Allen Engle, Faggot: Gay Rights, (October 11, 2012).
• Katie R. Eyer, Marriage This Term: On Liberty and the 'New Equal Protection', (60 UCLA L. Rev. Disc. 2, 2012).

From SmartCILP:

• Katya Assaf, Magical Thinking In Trademark Law, 37 Law & Social Inquiry 595-626 (2012).
• Danny Cohen-Zada and William Sander, Religious Participation Versus Shopping: What Makes People Happier?, 54 Journal of Law & Economics 889-906 (2011).
• David M. Forman, A Room for "Adam and Steve" at Mrs. Murphy's Bed and Breakfast: Avoiding the Sin of Inhospitality in Places of Public Accommodation, 23 Columbia Journal of Gender & Law 326-394 (2012).
• Saeed A. Khan, Sharia Law, Islamophobia and the U.S. Constitution: New Tectonic Plates of the Culture Wars, 12 University of Maryland Law Journal of Race, Religion, Gender & Class 123-139 (2012).
• David M. Smolin, Of Orphans and Adoption, Parents and the Poor, Exploitation and Rescue: A Scriptural and Theological Critique of the Evangelical Christian Adoption and Orphan Care Movement, 8 Regent Journal of International Law 267-324 (2012).

Recent Prisoner Free Exercise Cases

In Davis v. Powell, 2012 U.S. Dist. LEXIS 144067 (SD CA, Oct. 4, 2012), a California federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 144072, July 25, 2012), and permitted a Muslim inmate to proceed with his free exercise and RLUIPA claims growing out of a temporary total ban on Islamic prayer oil, and his equal protection claim against one defendant for instituting a policy restricting religious items to quarterly packages.

In Santos v. Caudle, 2012 U.S. Dist. LEXIS 144628 (MD PA, Oct. 5, 2012), a Pennsylvania federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that his kosher diet was wrongly suspended for 90 days.

In Washington v. Brown, 2012 U.S. Dist. LEXIS 145550 (ED CA, Oct. 5, 2012), a California federal district court, in an inmate's suit for monetary damages under RLUIPA, held that "based on ... the lack of any allegations ... suggesting that the denial of his religious diet would lead in the aggregate to a substantial effect on interstate commerce, the court concludes that plaintiff's claims do not come within the Commerce Clause underpinnings of RLUIPA." The magistrate's recommendations in the case are at 2012 U.S. Dist. LEXIS 120950, Aug. 24, 2012).

In Rowe v. Lemon, (IN App., Oct. 9, 2012), and Indiana appellate court held that the state had not shown as a matter of law that an inmate who adhered to Identity Christianity lacked sincere religious reasons for requesting a kosher diet, though the court described his claim as "arguably ... eyebrow-raising." It denied summary judgment to either side, concluding that issues of fact remain.

In Elfand v. County of Sonoma, 2012 U.S. Dist. LEXIS 146179 (ND CA, Oct. 9, 2012), a California federal district court dismissed on qualified immunity grounds a Jewish inmate's complaints over delays in responding to his requests for religious accommodation, including his request for kosher meals.

In Miles v. Moore, 2012 U.S. Dist. LEXIS 147451 (ED VA, Oct. 10, 2012), a Virginia federal district court dismissed plaintiff's complaint that (before recent amendments to prison rules) inmates were only allowed to sign up for religious programs during an open enrollment period once a quarter, which he missed because he was in isolation. The court held his request for injunctive relief is moot and damages are not recoverable under RLUIPA.

In Pittman-Bey v. Clay, 2012 U.S. Dist. LEXIS 146994 (SD TX, Sept. 19, 2012), a Texas federal magistrate judge recommended permitting an Hanafi Muslim inmate to move ahead with his 1st Amendment damage claim (other than for emotional damges) for denying him Ramadan meals. Under now-amended rules, Ramadan meals were not allowed to inmates who did not also attend Jumah services. Hanafi teachings barred plaintiff from attending Jumah services while in prison.

In Payne v. Lucas, 2012 U.S. Dist. LEXIS 146982 (D SC, Oct. 12, 2012), a South Carolina federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 147364, July 19, 2012) and dismissed a pre-trial detainee's request for a vegan diet and for a specific Catholic priest to be added to his visitor list.

2nd Circuit Upholds Denial of Vaccination Exemption

In Caviezel v. Great Neck Public Schools, (2d Cir., Oct. 12, 2012), the 2nd Circuit Court of Appeals affirmed the district court and rejected parents' constitutional challenges to New York's denial to them of a religious exemption from the requirement their children be vaccinated in order to attend public schools.  The 2nd Circuit found no clear error in the trial court's conclusion that plaintiffs had failed to show a genuine and sincere religious belief which would prohibit vaccinations.

Georgian Orthodox Church's Role In Parliamentary Elections Seen As Important

In an article posted yesterday, the New York Times reported on the role of the Georgian Orthodox Church in  last week's Parliamentary elections in the nation of Georgia. The election replaced President Mikheil Saakashvili's government with one formed by Bidzina Ivanishvili.  The Church has had a number of disagreements with the Saakashvili government, especially over legislation granting other religions equal status with the Orthodox Church in Georgia. Saakashvili was associated by Church conservatives with lax Western values.  Patriarch Ilia II insisted that the Church maintain neutrality in the election, but that signaled it was not endorsing the government.  One scholar described it as "a very active and anti-governmental neutrality."  As the election approached, Patriarch Ilia arranged for an airplane carrying icons and holy relics to circle over the country while priests prayed for its future.

1st Amendment Challenge To FBI-CIA Infiltration of Mosques Dismissed

In Zeiny v. United States, (ND CA, Oct. 10, 2012), a California federal district court dismissed a claim by a Muslim man, originally born in Egypt, that the CIA and FBI has violated his 1st Amendment rights by infiltrating Islamic centers.  He alleged that members of the Muslim community are deprived of the right to attend religious services without fear of law enforcement agents spying on them, and that his free speech in Islamic Centers is obstructed for fear of CIA action against him.

Italian Court Invalidates Attempt To Tax Church-Owned Property

In Italy last Monday, the Council of State invalidated a decree issued last February that would have subjected to taxation much of the now tax exempt property held by the Catholic Church.  The decree was an attempt to conform Italian law to European Union requirements. EU antitrust officials are investigating whether current exemptions amount to illegal government subsides of commercial activities.(See prior related posting.)  According to The Right Perspective, the Council on Monday held that the decree is "too heterogeneous" and goes “beyond the competences" of a tax law. The Church owns 20% of the property in Italy.  Purely commercial property it owns is already subject to tax. The new law would have expanded taxation to include property that generates profits, but which is now tax free because some percentage of the activities on it are religious, such as a shopping center that includes a chapel. According to ANSA, Italy's Economy Minister says that despite the court decision, the government is still determined to extend the property tax to Church property.

Despite Days In Jail For Contempt, Two Men Insist On Using Church Name Found To Be A Trademark Infringement

Yesterday's Jackson, Tennessee Sun carries an interesting interview with Walter McGill and Luke Chartier, members of a small Guys, Tennessee church who have recently been released after serving 30 days and 10 days respectively in jail for civil contempt growing out of a trademark infringement case they lost to the Seventh Day Adventist Church. (See prior posting.) The contempt sanctions were approved by a federal district court in General Conference Corporation of Seventh Day Adventists v. McGill, (WD TN, April 5, 2012).  The two men insist on calling their small church "The Creation 7th Day & Adventist Church." In the published interview, they say, in part:

We were told by God to use the name “Creation 7th Day Adventist” or “Creation Seventh Day Adventist” (spelled either way). We made an effort to show good faith in compromising in our advertising. We changed to “The Creation 7th Day & Adventist Church” (for the world church) or, at Guys, “A Creation 7th Day & Adventist Church” for the single congregation. Neither the plaintiffs nor the court recognized our “good-faith compromise” to be adequate. The fact is this: We refuse to give up our “God-given name,” which is “Creation Seventh Day Adventist.” Until God tells us differently, we must adhere to his mandate.

Justice Department Announces Non-Prosecution Policy For Certain Tribal Eagle and Protected Bird Ceremonial Use

Yesterday the U.S. Department of Justice announced  that it has issued a Memorandum (full text) to its enforcement personnel formalizing a uniform policy that assures members of federally recognized Indian tribes that they will not be prosecuted under the Bald and Golden Eagle Protection Act or the Migratory Bird Treaty Act for certain specified limited use of eagle and other protected bird feathers and parts in cultural and religious activities. Under the policy, tribal members (without obtaining a Fish and Wildlife Service permit) may possess, use, wear and travel with bird feathers or parts; acquire from the wild, without compensation, naturally molted or fallen feathers; give or exchange feathers and bird parts with other members of federally recognized tribes for their use, including to craftsmen (who may be paid for their work) for fashioning into objects for use in tribal religious or cultural activities. The Justice Department. however, will continue to prosecute both tribal members and non-members for illegal killing of eagles and other migratory birds, and for buying or selling of the feathers or other parts of protected birds. (See prior related posting.) CNN reported on the Justice Department's policy announcement.

Suit Challenges City's Ban On Traditional Nativity Diorama In Park

Earlier this week, a suit was filed in a California federal district court challenging the 2010 decision of the city of Santa Monica to adopt regulations that bar a group comprised of 13 churches and a police organization from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season.  In recent years, the display consisted of a sequential 14-scene story of Christmas. Each display was in an 18-foot long booth and included life-size mannequins and props. The city took the action after controversy in recent years when secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. The complaint (full text) in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, filed 10/9/2012) contends:

By amending the ordinance ... Defendant City succumbed to a "heckler's veto" and has thereby given preference to a messages hostile to religion, particularly Christianity.

It claims the city has imposed a content-based restriction on speech, has violated the Establishment Clause by adopting a policy that reflects hostility to Christianity and our nation's religious heritage, and has violated the equal protection clause by denying use of a public forum to those whose messages it finds unacceptable.

CBS News reports on the lawsuit.

Vice-Presidential Debate Explores Candidates' Religious Views

In last night's vice-presidential debate (full transcript), one question by moderator Martha Raddatz went directly to the candidates' religious views. Here is a slightly edited version of the exchange:

RADDATZ: ... We have two Catholic candidates, first time, on a stage such as this. And I would like to ask you both to tell me what role your religion has played in your own personal views on abortion..... 

RYAN: I don't see how a person can separate their public life from their private life or from their faith. Our faith informs us in everything we do. My faith informs me about how to take care of the vulnerable, of how to make sure that people have a chance in life.... Now, you want to ask basically why I'm pro-life? It's not simply because of my Catholic faith. That's a factor, of course. But it's also because of reason and science.

You know, I think about 10 1/2 years ago, my wife Janna and I went to Mercy Hospital in Janesville where I was born, for our seven week ultrasound for our firstborn child, and we saw that heartbeat. A little baby was in the shape of a bean. And to this day, we have nicknamed our firstborn child Liza, "Bean." Now I believe that life begins at conception.

... Now I understand this is a difficult issue, and I respect people who don't agree with me on this, but the policy of a Romney administration will be to oppose abortions with the exceptions for rape, incest and life of the mother. What troubles me more is how this administration has handled all of these issues. Look at what they're doing through Obamacare with respect to assaulting the religious liberties of this country. They're infringing upon our first freedom, the freedom of religion, by infringing on Catholic charities, Catholic churches, Catholic hospitals.

Our church should not have to sue our federal government to maintain their religious liberties. And with respect to abortion, the Democratic Party used to say they wanted it to be safe, legal and rare. Now they support it without restriction and with taxpayer funding. Taxpayer funding in Obamacare, taxpayer funding with foreign aid. The vice president himself went to China and said that he sympathized and wouldn't second guess their one child policy of forced abortions and sterilizations. That to me is pretty extreme....

BIDEN: My religion defines who I am, and I've been a practicing Catholic my whole life. And has particularly informed my social doctrine. The Catholic social doctrine talks about taking care of those who - who can't take care of themselves, people who need help. With regard to - with regard to abortion, I accept my church's position on abortion as a - what we call a (inaudible) doctrine. Life begins at conception in the church's judgment. I accept it in my personal life.

But I refuse to impose it on equally devout Christians and Muslims and Jews, and I just refuse to impose that on others, unlike my friend here, the - the congressman. I - I do not believe that we have a right to tell other people that - women they can't control their body. It's a decision between them and their doctor. In my view and the Supreme Court, I'm not going to interfere with that. With regard to the assault on the Catholic church, let me make it absolutely clear, no religious institution, Catholic or otherwise, including Catholic Social Services, Georgetown Hospital, Mercy Hospital, any hospital, none has to either refer contraception, none has to pay for contraception, none has to be a vehicle to get contraception in any insurance policy they provide. That is a fact.

.... Now with regard to the way in which the - we differ, my friend says that he - well I guess he accepts Governor Romney's position now, because in the past he has argued that there was - there's rape and forcible rape. He's argued that in the case of rape or incest, it was still - it would be a crime to engage in having an abortion. I just fundamentally disagree with my friend....

RYAN: All I'm saying is, if you believe that life begins at conception, that, therefore, doesn't change the definition of life. That's a principle. The policy of a Romney administration is to oppose abortion with exceptions for rape, incest and life of the mother.....

Malaysian Court Upholds Shariah Provision Barring Cross Dressing

In Malaysia yesterday, the High Court in Seremban ruled against four transgender plaintiffs who sued in civil court to bar enforcement against them of a law-- enforced in Shariah courts-- that bans Muslim men from cross dressing in women's clothing. AP and BikyaMasr report that four transgender activists who had previously been arrested by religious authorities for violating the law had challenged the law as infringing freedom of expression and as violating the constitutional prohibition on gender discrimination.  The government argues that the protection against gender discrimination does not cover sexual orientation. The court held that Muslim transsexuals cannot be exempted from Shariah law applying to them. The four plaintiffs have undergone hormone therapy and present themselves in public as women.

British Soccer Players Are Told New Team Shirts Violate Sharia Law

In Britain earlier this week, Newcastle's soccer team, the Magpies, signed a lucrative deal with Wonga.com, a short-term loan company that operates online, under which Wonga becomes the team's shirt sponsor beginning in the 2013-14 season. (Goal.com). Now, according to Goal.com, Shaykh Ibrahim Mogra, assistant general secretary of the Muslim Council of Britain, has told Muslim players that they will violate Sharia law if they wear the shirts. Under Islamic law, Muslims are not allowed to benefit from the lending of money. Wonga charges over 4000% interest on its loans.  Four players on the current Newcastle squad are practicing Muslims.

Suit Filed Challenging NYC Informed Consent Requirements For Certain Ritual Circumcisions

A widely anticipated lawsuit was filed in federal district court in New York yesterday challenging a recently adopted New York City Board of Health regulation requiring informed consent from parents before a controversial method is used in the Jewish religious circumcision of their infant sons. (See prior posting.) As reported by the Wall Street Journal, three Orthodox Jewish organizations and three rabbis sued challenging the city's new requirement that mohels who use metzitzah b'peh (oral suction) when circumcising infants first obtain signed written consent forms from parents warning them of the risk of transmission of diseases such as herpes simplex.  The suit contends that the city lacks proof that the procedure poses health risks, and that the regulation unconstitutionally forces private citizens to convey information they do not believe.

UPDATE: The full text of the complaint in Central Rabbinical Congress of the USA and Canada v. New York City Department of Health & Mental Hygiene, (SD NY, filed 10/11/2012) is now available. The complaint asserts a compelled speech claim, as well as free exercise claims under the U.S. and New York state constitutions.

Atlanta Archdiocese Sues Over Contraceptive Insurance Coverage Mandate

The Catholic Archdiocese of Atlanta announced yesterday that it has filed suit in a Georgia federal district court challenging the mandate that health insurance policies cover contraceptive services. Joining the Archdiocese as plaintiffs are the Diocese of Savannah; Catholic Charities of the Archdiocese of Atlanta; and Christ the King School, Atlanta. The complaint (full text) in Roman Catholic Archdiocese of Atlanta v. Sebelius, (ND GA, filed 10/5/2012) alleges that the mandate violates the 1st Amendment, RFRA, the Administrative Procedure Act and amounts to an unconstitutional delegation of legislative authority. Dozens of other Catholic organizations and dioceses have already filed similar suits. (See prior posting.)

Philippines Enters Agreement With Islamic Rebels; Will Create Area With Sharia Law For Muslims

In the Philippines last Sunday, President Benigno Aquino announced that a preliminary agreement has been reached with the Moro Islamic Liberation Front that will end a Muslim insurgency in Mindanao that has gone on for many years. The framework agreement is scheduled to be signed on Oct. 15. The agreement calls for establishment of  an area called Bangsamoro.  According to the Philippine Daily Inquirer, Sharia law rather than the Civil Code will apply to Muslims in Bangsamoro, but any law or regulation to be adopted by the region must assure basic constitutional rights and liberties, including separation of religion and state. Any Islamic religious schools (madaris) will be privately funded. The state will continue to regulate public schools, but will be culturally sensitive in creating the curriculum. A 15-member Transition Commission will work out details of the agreement. Some commentators are concerned that the arrangement will infringe religious liberties of both Muslims and Christians in the area.

UPDATE: In the United States, the White House welcomed the signing of the agreement in an Oct. 15 statement by the Office of the Press Secretary. The White House says that the agreement "marks another step toward ending insurrection and restoring good governance."

German Court Refuses To Excuse Muslim Girl From Co-Ed School Swimming Classes

Gatestone Institute reports on a Sept. 28 decision by the Hessian Administrative Court in Germany refusing to excuse a 12-year old Muslim girl from co-ed swimming lessons in her school. The court, emphasizing that religious minorities must avoid segregating themselves, said that the girl's religious beliefs could be accommodated by her wearing a full-body swimsuit (also known as a "burkini"), as do several other Muslim girls at her school. The girl's lawyer said the 12-year old does not want to wear a burkini because it makes her look ugly, and seeing other boys and girls in short clothes violates her modesty. Because of the importance of the case, the court is asking the Federal Administrative Court to review the decision.

Trespass Conviction of Church Member Reversed

In a 2-1 decision in Semenick v. State of Indiana, (IN App., Oct. 9, 2012), and Indiana appellate court reversed the criminal trespass conviction of a long-time church member who was evicted from church services by an off-duty police officer acting as a security guard after the church member complained that a volunteer greeter was speaking too loudly with others during the service.  The majority held that the church member had a right to be on church premises and there was no evidence that the off-duty police officer had authority to take sides in a dispute between members and ask one of them to leave. Judge Mathias dissenting  argued that defendant's conduct during services was disruptive. The jury, he argued, could reasonably conclude that defendant did not have a contractual interest in the property at issue, and knowingly or intentionally refused to leave the Church after having been asked to do so by an agent of the Church.

Denial of Loan Guarantee for Faith-Based Group Remanded For Consideration of Constitutional Issues

In Care Net Pregnancy Center of Windham County v. U.S. Department of Agriculture, (D DC, Oct. 10, 2012), a Christian pregnancy resource center in Brattleboro, Vermont challenged the Department of Agriculture's denial to it of a loan under the agency's Community Facilities Loan Program. The agency sought to purchase and renovate property for it to use as its permanent facility. While faith-based organizations are eligible to participate in the program, inherently religious activities cannot be supported. Part of Care Net's program included Bible study or Bible centered teaching.  The USDA's Appeals Division Hearing Officer concluded that:

Due to the fluctuating nature of [Care Net’s] program and due to a lack of reliable classroom information provided by [Care Net], [the USDA] is unable to realistically separate the eligible activities from the inherently religious activities either by time or space, thereby creating an excessive entanglement between Government and religion.... [Care Net] has not satisfactorily shown that the amount of direct USDA assistance requested does not exceed the cost of the proposed acquisition and renovation attributable to eligible program activities.

The court concluded that this was a reasonable interpretation of the agency's regulations. However the court remanded the case to the USDA's Appeals Division for it to consider Care Net’s claims under the Free Speech and Equal Protection Clauses, the USDA’s defense under the Establishment Clause, and Care Net’s Fair Housing Act claim.

Another Suit Filed Challenging ACA Contraceptive Coverage Mandate

New suits continue to be filed challenging the mandate under the Affordable Care Act requiring that most insurance policies cover contraceptive services. The latest is Korte v. U.S. Department of Health and Human Services, (SD IL, filed 10/9/2012) (full text of complaint) in which the two controlling shareholders of a family-owned construction firm with 90 employees allege that complying with the Mandate would require them to violate their Catholic religious beliefs. Plaintiffs also filed a Memorandum of Law in support of their motion for partial summary judgment and a Memorandum of Law in support of their motion for a preliminary injunction. In  a press release, the American Center for Law and Justice announced the filing of the lawsuit.

School Ban On Student Distribution of Proselytizing Messages Is Viewpoint Discrimination

In Gilio v. School Board of Hillsborough County, Florida, (MD FL, Oct. 5, 2012), a Florida federal magistrate judge recommended issuance of a preliminary injunction to allow a 4th grade student to distribute invitations to a church organized Easter egg hunt to fellow classmates. The invitation indicated that the purpose of the event was "To have fun and learn the true meaning of Easter." According to the court:

Board Policy 9700 bans the distribution of materials from religious institutions or organizations that “contain a proselytizing message (i.e., promote the benefits of the specific religion).”  The policy also states that school officials shall use the criteria in Board Policy 5722 to determine whether materials are suitable for distribution at school.  In turn, one provision in Board Policy 5722 explains that materials are not appropriate if they “[s]eek to establish the supremacy of a particular religious denomination, sect, or point of view over any other religious denomination, sect, or point of view[.]”...

As applied to J.G.’s invitations, the contested provisions ... permit viewpoint discrimination because they target proselytizing messages solely from a religious perspective.... Board Policy 9700 applies only to religious institutions and organizations – not secular groups.  The policy also defines “proselytizing messages” exclusively in relation to religious speech,  or messages that “promote the benefits of the specific religion.”  But proselytizing also has a broader meaning, such as “recruit[ing] members for an institution, team, or group.”...  Although the School Board asserts that the policies are viewpoint neutral because they apply equally to all religions, regardless of the underlying theology, this argument is not persuasive.

Student Press Law Center reports on the decision.

Recent Articles of Interest (Installment 2 For This Week)

From SSRN:

• Robin Fretwell Wilson, The Calculus of Accommodation: Contraception, Abortion, Same-Sex Marriage, and Other Clashes Between Religion and the State, (Boston College Law Review, Vol. 53, p. 1417, 2012).
• Amos N. Guiora and Julia Chamberlin, Religion and the Status of Women, (October 2, 2012).
• Aaron J. Rappaport, Tinka M. Veldhuis, and Amos N. Guiora, Homeland Security and the Inmate Population: The Risk and Reality of Islamic Radicalization in Prison, (Special Needs Offenders IN Correctional Institutions, p. 431, Lior Gideon, ed., 2012).
• Kay Wilson, Penelope June Weller, Benevolent Paternalism or a Clash of Values: Motherhood and Refusal of Medical Treatment in Ireland , (2011) 21 Journal of Mental Health Law 74.
• Hadassa A. Noorda, Review on Ahmed Al-Dawoody, The Islamic Law of War – Justifications and Regulations, (Journal of Military Ethics, 11:1, 67-69, 2012).

From SmartCILP and elsewhere:

• Susanna Mancini, Patriarchy As the Exclusive Domain of the Other: The Veil Controversy, False Projection and Cultural Racism, 10 I.Con: International Journal of Constitutional Law 411-428 (2012).
• Laura Nader, Rethinking Salvation Mentality and Counterterrorism, 21 Transnational Law & Contemporary Problems 99-117 (2012).
• Wadie E. Said, The Message and Means of Modern Terrorism Prosecution, 21 Transnational Law & Contemporary Problems 175-195 (2012).
• Stephanie M. Wurdock, Doctors, Dioceses, and Decisions: Examining the Impact of the Catholic Hospital System and Federal Conscience Clauses on Medical Education, 6 Pittsburgh Journal of Environmental & Public Health Law 179-212 (2012).
• Stanley W. Carlson-Thies, Which Religious Organizations Count as Religious? The Religious Employer Exemption of the Health Insurance Law's Contraceptives Mandate, Engage Volume 13, Issue 2, July 2012.
• Karen Lugo, American Family Law and Sharia-Compliant Marriages, Engage Volume 13, Issue 2, July 2012.
• Pew Forum on Religion & Public Life, Preaching Politics From the Pulpit--2012 Guide to IRS Rules on Political Activity by Religious Organizations, (2012).

Russian Court Suspends Sentence Of One Pussy Riot Band Member

In Russia today, according to Reuters, the Moscow City Court suspended the sentence of Yekaterina Samutsevich, one of the 3 members of the punk rock band Pussy Riot who had been given a 2-year prison sentences for hooliganism motivated by religious hatred growing out of a protest performance after the band entered Christ the Savior Cathedral. (See prior posting.) It turns out that Samutsevich had not taken part in the actual performance because she had been stopped and led away before it began.  The court however reaffirmed the sentences of the other 2 band members, rejecting the argument they made in appealing their sentences that they did not intend to offend religious believers, but instead "to speak out against the merger between spiritual figures and the political elite of our country."

Indian Court Says Scholarship Program Creates Religious Discrimination

In the Indian state of Gujarat on Monday, a 2-judge bench of the high court upheld the state government's refusal to implement a central government program that awards scholarships to children of 5 minority groups.  According to the Times of India, the court ruled that the program violates Article 15(1) of the Indian Constitution by favoring students of one religious group over another. The Constitution bars the State from discriminating against any citizen on grounds of religion, race, caste, sex, or place of birth. The central government says the program is not discriminatory, but is designed to help backward groups and has been implemented in other states. However, rather than implementing its judgment, the court referred the case to a larger bench since an opposite view was taken by another division bench in 2009.

N.Y. Court Recognizes UAE Judgment Enforcing Mahr Agreement

In S.B. v. W.A., (Sup. Ct. N.Y., Sept. 26, 2012), a New York trial court issued an order declaring enforceable an Abu Dhabi court's judgment in a divorce proceeding under the law of the United Arab Emirates enforcing a Muslim couple's Mahr agreement. Defendant raised 1st Amendment objections since the agreement had been entered as part of a religious ceremony two months after the parties' civil marriage. The court concluded, however: "Since a Mahr agreement may be enforced according to neutral principles of law, it will survive any constitutional challenge and be enforceable as a contractual obligation." The agreement entitled the wife to $250,000 in case of a divorce. Volokh Conspiracy has more on the case. [Thanks to Steven H. Sholk for the lead.]

Legislative Religious Freedom Caucuses In 9 States Announced

Leaders representing a bi-partisan group of 120 state legislators today announced the formation of religious freedom caucuses in nine state legislatures-- Arizona, Colorado, Florida, Idaho, Kansas, Missouri, New Hampshire, Oklahoma, and Tennessee. Leaders hope to have caucuses formed in all 50 states by the end of 2013. The caucuses will create legislative agendas for strengthening religious liberty in consultation with diverse faith communities, and will create educational materials on religious freedom.

Cert. Denied In RLUIPA Land Use Case

Today, the U.S. Supreme Court denied review in Gutay Christian Fellowship v. San Diego County, CA, (Docket No. 11-1451, certiorari denied 11/9/2012). (Order List.) In the case, the U.S. 9th Circuit Court of Appeals dismissed on ripeness grounds a church's RLUIPA land use lawsuit. The church had not actually filed an application for a modification of use permit. (See prior posting.)

New Jersey Police Charge Proselytizers With Breach of Peace

According to Christian News, police in Jersey City, New Jersey on Saturday cited six members of the Bread of Life Fellowship for breach of the peace when members of the public complained about their preaching, one-on-one witnessing, and handing out of Gospel tracts in Jersey City's Journal Square. Police told the six men who were ticketed that in the future they need a special permit to carryout their proselytizing on the publicly owned property. A hearing on the breach of peace charges is set for next month in Municipal Court. [Thanks to Andrew Reibman for the lead.]

Two More Suits Challenge Contraceptive Coverage Mandate Under Affordable Care Act

New lawsuits continue to be filed challenging the Obama administration’s Mandate under the Affordable Care Act requiring most health insurance policies to cover contraceptive services.  A corporation that manufactures precision auto parts, an affiliated limited liability company that manufactures precision medical components, and the Catholic family that owns both companies has filed suit in federal district court in Michigan challenging the Mandate on 1st Amendment, RFRA and Administrative Procedure Act grounds.  The complaint (full text) in Autocam Corporation v. Sebelius, (WD MI, filed 10/8/2012) contends that the companies will face fines of $66,000 per day for noncompliance with the Mandate. The Thomas More Society issued a press release announcing the filing of the lawsuit.

Meanwhile, in Texas, two Baptist schools, East Texas Baptist University and Houston Baptist University have also filed suit in federal district court challenging the Mandate.  The complaint (full text) in East Texas Baptist University v. Sebelius, (SD TX, filed 10/9/2012) challenges the Mandate on similar grounds. Becket Fund issued a press release announcing the filing of this lawsuit.

As is typical with the numerous suits that have been filed, Catholic institutions and plaintiffs complain that contraception coverage of all kinds is inconsistent with their religious beliefs, but emphasize required coverage for contraceptive drugs and devices that may prevent implantation of fertilized eggs which plaintiffs see as abortion. Protestant plaintiffs focus only on coverage of those contraceptive methods seen as abortifacients.

Recent Articles of Interest

From SSRN:

• Sarah M. Fallon, Respecting American Muslims and Shari'a Law: Maintaining Comity within American Jurisprudence, (Boston College International and Comparative Law Review, Vol. 35, 2012).
• Carl H. Esbeck, Religion During the American Revolution and the Early Republic, (Silvio Ferrari, ed., Law & Religion, Ashgate Publishing Co., U.K., 2013).
• Frederick Mark Gedicks, Ironies of Hosanna-Tabor, (Mercer Law Review, Forthcoming).
• András Koltay, Europe and the Sign of the Crucifix: On the Fundamental Questions of the Lautsi and Others v. Italy Case, (January 15, 2012).
• Shruti Chaganti, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, (October 2, 2012).
• Paul A. Lombardo, Return of the Jukes: Eugenic Mythologies and Internet Evangelism, (Journal of Legal Medicine, Vol. 33, 2012).
• Jeremy G. Mallory, Prophetic Speech, (August 24, 2012).
• David Allen Larson and Chang Wang, Preparing to Negotiate in a Globally Diverse Environment: An Examination of Chinese and Jewish Perspectives on Truth and Lies, (Hamline Journal of Public Law and Policy, Vol. 33, No. 2, 2012).
• John D. Haskell, Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law, (11:3 Chinese Journal of International Law 429, 2012).
• Ebrahim Moosa, Translating Neuroethics: Reflections from Muslim Ethics, (Science and Engineering Ethics no. 18 (2):1-10, 2012).

From SmartCILP:

• Jean L. Cohen, The Politics and Risks of the New Legal Pluralism In the Domain of Intimacy, [Abstract], 10 I.Con: International Journal of Constitutional Law 380-397 (2012).
• Katheryn M. Dutenhaver, Mediating the Religious Upbringing Issue in Divorce Cases, 12 Pepperdine Dispute Resolution Law Journal 397-413 (2012).
• Cecile Laborde, State Paternalism and Religious Dress Code, [Abstract], 10 I.Con: International Journal of Constitutional Law 398-410 (2012).
• Julieta Lemaitre, By Reason Alone: Catholicism, Constitutions, and Sex in the Americas, [Abstract], 10 I.Con: International Journal of Constitutional Law 493-511 (2012).

Powers of Saudi Religious Police Are Curbed

BBC reported last week that in Saudi Arabia, Abdul Latif Abdul Aziz al-Sheikh, head of the country's Commission for the Promotion of Virtue and Prevention of Vice, has announced new limits on the power of the religious police.  Arrests, interrogations, house raids and searches will now be carried out by other government agencies, as the public is increasingly criticizing aggressive enforcement by the Commission's mutawa.

Canadian Government's Cut In Prison Chaplains Is Criticized

The Windsor Star reported yesterday that the Canadian government's decision to stop funding for 50 part-time minority faith chaplains who serve in the Canadian prison system is being criticized by both NDP and Liberal opposition members of Parliament. The move, which affects 31 Christian and 18 non-Christian part-time chaplains will save the government $1.3 million.  The 80 full time prison chaplains (all but 1 of whom is Catholic or Protestant) will now serve the non-Christian inmate population. Those opposed to the move by the Conservative government say it infringes religious freedom. Jewish, Muslim and Sikh clergy involved in the program also criticized the cuts. The government's move does not affect some 2500 volunteers who offer religious services, nor does it impact spiritual services for aboriginal inmates.