Appeals Court Removes Court Martial Judge For Bias In Ft. Hood Shooter Case

As reported by the Washington Post yesterday, accused Fort Hood shooter Maj. Nidal Hasan won a significant victory yesterday in his ongoing battle with a military judge who refuses to allow him to wear a beard during his murder trial. Hasan has asserted the refusal violates his rights to the free exercise of religion. (See prior related posting.)  In Hasan v. Gross, (Armed Forc. Ct. App., Dec. 3, 2012), the U.S. Court of Appeals for the Armed Forces in a per curiam opinion not only held that there was insufficient evidence to show that Hasan's beard materially interfered with the court martial proceedings, but also held that court martial judge Gregory Gross should be removed from the case because of the appearance of bias.  The court said in part:

the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.... [I]t could reasonably appear to an objective observer that the military judge had allowed the proceedings to become a duel of wills between himself and Appellant rather than an adjudication of the serious offenses with which Appellant is charged. Moreover, we are cognizant that the military judge and his family were present at Fort Hood on the day of the shootings.

The court also vacated Hasan's contempt convictions and the judge's order to forcibly shave him. It said: "We need not and do not decide if and how RFRA might apply to Appellant’s beard.  Should the next military judge find it necessary to address Appellant’s beard, such issues should be addressed and litigated
anew."

Chaplain Sues Church-State Activist For Defamation, Abuse of Process

Earlier this year, a Texas state trial court dismissed a suit brought by Mikey Weinstein, founder of the Military Religious Freedom Foundation (MRFF), against former Navy chaplain Gordon Klingenschmitt, contending that Klingenschmitt was conspiring to encourage violence against him through use of "imprecatory prayers." The court concluded that Weinstein had shown no connection between the prayers and the threats and vandalism suffered by his family. (See prior posting.) Last week, Klingenschmitt reciprocated, filing suit against Weinstein and MRFF in state court in New Mexico claiming defamation and malicious abuse of process. The complaint (full text) in Klingenschmitt v. Weinstein, (NM Dist. Ct.), alleges in part:

The factual assertion or implication that Klingenschmitt’s 2009 prayers somehow incited or caused unidentified others to commit acts of vandalism including “a swastika emblazoned on their home in New Mexico, animal carcasses left on their doorstep and feces thrown at the house,” is demonstrably false in that both Mikey and Bonnie Weinstein have admitted these acts of vandalism occurred in 2006, 2007 or 2008, and therefore could not have been caused by Klingenschmitt’s 2009 prayers....

Upon information and belief, the primary motive for Weinstein and Bonnie L. Weinstein to file the lawsuit against Klingenschmitt was an illegitimate end, specifically to cause Klingenschmitt or his interests financial difficulties, to prevent Klingenschmitt from promoting his philosophy or his religious beliefs, to marginalize Klingenschmitt’s influence, goals, and impact, and to subject Klingenschmitt to the expense, delay, and distraction of protracted litigation.

In a Dec. 2 press release, Klingenschmitt announced that Weinstein had been served in the lawsuit. God and Country blog reports on the lawsuit.

French Lawyer Fined, Faces Discipline, For Alleging Judicial Religious Bias Based On Jewish Name

Digital Journal reports that in Lyon, France last week, the Lyon Bar referred lawyer Alexis Dubruel for disciplinary proceedings after Dubruel sought disqualification of a judge because of the judge's Jewish name.  Dubruel, representing a grandmother seeking to obtain visitation rights to see her granddaughter, argued that Judge Albert Levy should be disqualified for lack of impartiality. According to Dubrel:

The presiding judge whose disqualification is sought has the surname "Levy". The "Papa" of the person in this case Miss X (...) had been prosecuted for the offence of taking away a minor under 18, is named Moses (Moïse). The first page of reference for the word "Lévy" on Wikipedia says that the word is, “according to tradition, the founder of the Jewish religion, Judaism, which is sometimes called, for this reason, Mosaic, that is to say, the religion of Moses. The materiality of these findings is incontestable.

The court denied Dubrel's motion and fined him 750 Euros. According to The Algemeiner, in an earlier hearing a client of Dubruel's felt she was unfairly treated and attributed it to Levy's bias in favor of a Jewish defendant. Judge Levy has previously been the subject of anti-Semitic attacks, including threats when he investigated the far-right Front National Party and his being placed under police protection when an Islamist group threatened him.

Appeals Court Says Amish Must Abide By Consent Judgment On Sewers

In Wagler v. West Boggs Sewer District, Inc., (IN App., Nov. 29, 2012), an Indiana appeals court refused to set aside consent judgments entered into by several members of an Old Order Amish community under which they are to connect to the public sewer system and install a grinder pump despite their religious beliefs that preclude using electricity from the public grid and being on a public utility sewer.

Recent Articles and Book of Interest

From SSRN (U.S. Law):

• Justin B. Richland, Hopi Tradition as Jurisdiction: On the Potentializing Limits of Tribal Sovereignty, (Law and Social Inquiry, Vol. 36, No. 1, 201-234, Winter 2011).
• Dominic Draye, Baptizing the Fourteenth Amendment: Equal Protection and Religion, (August 30, 2011).
• Nicholas P. Cafardi, Saving the Preachers: The Tax Code's Prohibition on Church Electioneering, (Duquesne University Law Review, Vol. 50, p. 503, 2012).
• Robert A. Kahn, Karl Loewenstein, Robert Post and the Ongoing Conversation between Europe and America Over Hate Speech Laws, (U of St. Thomas Legal Studies Research Paper No. 12-38, 2012).
• Eric Lane, On Madison, Muslims, and the New York City Police Department, (Hofstra Law Review, Vol. 40, No. 3, 2012).
• Courtney G. Joslin, Marriage, Biology, and Federal Benefits, (Iowa Law Review, Forthcoming).
• Linda Sugin, The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, (November 30, 2012).

From SSRN (Non-U.S. Legal Systems):

• Omar Salah, Legal Infrastructure of Sukuk Structures – Part 1, (TISCO Working Paper Series on Banking, Finance and Services No. 04/2012).
• Javaid Rehman and Eleni Polymenopoulou, Is Green a Part of the Rainbow? Sharia, Homosexuality and LGBT Rights in the Muslim World, (October 10, 2012).
• Juan Carlos Riofrio Martinez Villalba, El Derecho al Nombre de las Confesiones Religiosas (The Right to Religious Confession Name), (La Propiedad Inmaterial, No. 16, p. 77, 2012).
• Patrick McKinley Brennan, Subsidiarity in the Tradition of Catholic Social Doctrine, (Subsidiarity in Comparative Perspective, Michelle Evans and Augusto Zimmermann, eds., Springer, Forthcoming).
• Alan Greene, Natural Law and the Basic Norm of the Irish Constitution, ((2012) 30 (19) Irish Law Times 298-300).
• Shafi'i Abdul Azeez Bello, The Scope and Application of Wa' Ad, Muwa'Adah and Wa'Dan in Islamic Finance, (November 20, 2012).
• Renae Barker, The Full Face Covering Debate: An Australian Perspective, (University of Western Australia Law Review, Vol. 36, No. 1, 2012).

From SmartCILP and elsewhere:

• Religious Freedom in a Pluralistic Age: Trends, Challenges, and Practices. Articles by Zaki Azmi, Jorge Adame Goddard, Jose Ferrer Sanchez, Syamsul Arifin, Gennadiy Druzenko, Brian J. Grim, Gregor Puppinck and Renata Uitz. 2012 Brigham Young University Law Review 689-967.
• Steven J. Heyman, To Drink the Cup of Fury: Funeral Picketing, Public Discourse and the First Amendment,  45 Connecticut Law Review 101 (2012).

New Book:

• Brian Leiter, Why Tolerate Religion?, (Oct. 28, 2012).

Federal Court Upholds Nevada's Ban On Same-Sex Marriage

In Sevcik v. Sandoval, (D NV, Nov. 26, 2012), a Nevada federal district court upheld against an Equal Protection Clause challenge the constitutionality of Nevada's ban on same-sex marriages. Nevada does recognize same-sex and opposite-sex domestic partnerships, with the parties having most, but not all, of the same rights and responsibilities as do spouses in a marriage. The court concluded that it need apply only rational basis scrutiny to Nevada's state constitutional provisions limiting marriage to heterosexual couples:

Here, there is no indication of any intent to maintain any notion of male or female superiority, but rather, at most, of heterosexual superiority or “heteronormativity” by relegating (mainly) homosexual legal unions to a lesser status....

The States are currently in the midst of an intense democratic debate about the novel concept of same-sex marriage, and homosexuals have meaningful political power to protect their interests. At the state level, homosexuals recently prevailed during the 2012 general elections on same-sex marriage ballot measures in the States of Maine, Maryland, and Washington, and they prevailed against a fourth ballot measure that would have prohibited same sex marriage under the Minnesota Constitution. It simply cannot be seriously maintained, in light of these and other recent democratic victories, that homosexuals do not have the ability to protect themselves from discrimination through democratic processes such that extraordinary protection from majoritarian processes is appropriate.

Applying rational basis scrutiny, the court concluded that "the protection of the traditional institution of marriage, which is a conceivable basis for the distinction drawn in this case, is a legitimate state interest."   The court also held that protection of Nevada's public policy is a valid reason for it to refuse to recognize same-sex marriages performed in other states.  AP reporting on the decision says that plaintiffs plan an appeal.

State Court Says Louisiana Voucher Program Violates State Constitution

In Louisiana Federation of Teachers v. State of Louisiana, (LA 19th Dist. Ct., Nov. 30, 2012), a Louisiana trial court held that the state's voucher program unconstitutionally diverts to nonpublic schools or entities funds which the state constitution's Minimum Foundation Program allocates to elementary and secondary public schools. The court said that its decision, however, does not foreclose "establishing educational programs that are funded outside the constitutional limitations of the Minimum Foundation Program...." Ponchartrain Newspapers reports more extensively on the testimony in the case, the decision and the reaction to it.

Raelians Ask UN Human Rights Council To Investigate Switzerland's Actions Against Them

Last week, the International Raelian Movement filed a Petition (full text) with the United Nations Human Rights Council asking it to investigate Raelian charges that Switzerland, conspiring with the Vatican, has misused the European Court of Human Rights to defame the Raelian movement.  The petition reads in part:

The honor and reputation of the entire leadership of a recognized worldwide religious movement has been intentionally defamed based on a manipulation of the facts by Judge Bratza of the European Court of Human Rights in a case involving Switzerland’s refusal to permit the inoffensive poster above to be displayed in public. Underlying this betrayal of justice by Judge Bratza was a conspiracy by Switzerland and the Vatican to bizarrely label the Raelian Movement leadership as pedophiles in retaliation for its stand against clerical pedophilia worldwide and in particular in francophone countries.

The European Court decision about which the Raelians complain is attached as an appendix to their petition. The Raelian Movement also issued a press release announcing the filing of their petition.

Recent Prisoner Free Exercise Cases

In Finney v. Marshall, 2012 U.S. Dist. LEXIS 167765 (ED TX, Nov. 27, 2012), a Texas federal magistrate judge dismissed as frivolous a complaint by a Mormon inmate that he was not allowed to take Sundays off from his job in the prison kitchen.

In Allen v. Hense, 2012 U.S. Dist. LEXIS 168217 (ED CA, Nov. 26, 2012), a California federal magistrate judge dismissed a Muslim inmate's complaint that on one day during his Administrative Segregation Unit confinement he was served the regular breakfast and sack lunch instead of his religious vegetarian meal.

In Heggem v. Holmes, 2012 U.S. Dist. LEXIS 168935 (WD WA, Nov. 27, 2012), a Washington federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 168936, Oct. 4, 2012) and dismissed an inmate's claims that the revocation of her alternative drug offender sentence involved retaliation because of her religious beliefs. Prior litigation had already rejected the same contentions.

In Lapine v. Vilgos, 2012 U.S. Dist. LEXIS 170011 (WD MI, Nov. 27, 2012), a Michigan federal district court rejected free exercise retaliation and equal protection claims by a Native American inmate who had a disciplinary misconduct charge for threatening behavior filed against him after he disrupted religious services because he was upset over new limits on the smudging ceremony.

In Goodson v. Clark, 2012 U.S. Dist. LEXIS 169906 (WD VA, Nov. 29, 2012), a Virginia federal district court dismissed an inmate's complaint that defendants told him that Satanism is not a religion recognized by the Department of Corrections and refused to allow him to order a Goat Head Star Amulet.

In Wall v. Wade, 2012 U.S. Dist. LEXIS 170537 (WD VA, Nov. 30, 2012), a Virginia federal district court dismissed an inmate's complaint that his rights were violated when he (along with 183 others) was removed from the Ramadan participation list for not having Islamic materials to demonstrate his religious sincerity.

In Cloyd v. Dulin, 2012 U.S. Dist. LEXIS 170100 (MD TN, Nov. 30, 2012), a Tennessee federal district court rejected a Muslim inmate's complaint that the prison's halal diet did not include real meat.

In Galdones v. Department of Public Safety, 2012 U.S. Dist. LEXIS 169824 (D HI, Nov. 29, 2012), an Hawaii federal district court dismissed without prejudice various claims by an inmate of interference with his practice of his Native Hawaiian religion and related retaliation and due process claims.

In Goodman v. Ramey, 2012 U.S. Dist. LEXIS 169264 (SD WV, Nov. 29, 2012), a West Virginia federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 170527, May 17, 2012) and rejected an inmate's claim that his free exercise rights were violated when was disciplined for accepting a money order from the parents of another inmate who sent the money to thank him for being a "Christian brother" to their son.

Court Upholds Indiana's Marriage Solemnization Statute Over Objections of Secular Celebrant

In Center for Inquiry v. Clerk, Marion Circuit Court, (SD IN, Nov. 30, 2012), an Indiana federal district court rejected constitutional challenges to Indiana's marriage solemnization statute (IN Code 31-11-6-1).  Under the statute, clergy can obtain a license to solemnize marriages, but those certified as "Secular Celebrants" by the non-religious Center for Inquiry cannot.  The court said in part:

We conclude that the Solemnization Statute is rationally related to the legitimate purpose of alleviating significant governmental interference with pre-existing religious beliefs about marriage. Additionally, the statute bears a  rational relation to the equally reasonable purpose of allowing the government to assume responsibility for the marriage regulation function without ostracizing its religious constituents. For these and all of the reasons explicated above, we find that Plaintiffs' First Amendment claim-whether grounded in Free Exercise Clause or Establishment Clause jurisprudence-does not succeed on the merits.

The court likewise rejected plaintiffs' equal protection claim. In reaching its conclusions, the court pointed out:

there are several readily available avenues by which a Secular Celebrant may facilitate a marriage ceremony in Indiana: she may (1) preside at a wedding and then instruct the couple to go before one of the individuals listed in the Solemnization Statute to have the marriage solemnized; (2) become a member of the "clergy" by seeking immediate Internet ordination from the Universal Life Church; or (3) seek certification to solemnize marriages from the Humanist Society.

Federal Court Refuses To Order Trailer of "Innocence of Muslims" Taken Down From YouTube

As reported by AP, a federal court in Los Angeles on Friday refused to grant a preliminary injunction to actress Cindy Lee Garcia who appears in the controversial film "Innocence of Muslims" and wants the trailer for the film removed from YouTube.  Garcia claims she was deceived about the film's subject matter and that her voice was dubbed over after filming. Her federal lawsuit alleges copyright infringement.  In Garcia v. Nakoula, (CD CA, Nov. 30, 2012), the court held that even if Garcia owns a copyright in her performance in the film, she necessarily "granted the Film’s author a license to distribute her performance as a contribution incorporated into the indivisible whole of the Film."

Oregon High Court Rules That Parent Church Owns Property of Breakaway Presbyterian Congregation

In Hope Presbyterian Church or Rogue River v. Presbyterian Church (U.S.A.), (OR Sup. Ct., Nov. 29, 2012), the Oregon Supreme Court held that the property of a break-away Presbyterian congregation belongs to PCUSA, the national church body.  The court concluded that it would use the "neutral principles" approach in determining the rights of the parties. Applying that approach, the court found that "Hope Presbyterian held its property in trust for the benefit of PCUSA."

Text Of Egypt's Proposed Constitution-- Provisions On Religion

The full text of Egypt's proposed new Constitution became available today in English from Egypt Independent. BBC News has also published a side-by-side comparison of key provisions in the new constitution and those in the now-suspended 1971 Constitution. Here are some of the provisions in the new draft Constitution relating to religion and religious liberty:

Article 1
. The Arab Republic of Egypt is an independent sovereign state, united and indivisible, its system democratic.
The Egyptian people are part of the Arab and Islamic nations, proud of belonging to the Nile Valley and Africa and of its Asian reach, a positive participant in human civilization.



Article 2. Islam is the religion of the state and Arabic its official language. Principles of Islamic Sharia are the principal source of legislation.



Article 3
. The canon principles of Egyptian Christians and Jews are the main source of legislation for their personal status laws, religious affairs, and the selection of their spiritual leaders.



Article 4
. Al-Azhar is an encompassing independent Islamic institution, with exclusive autonomy over its own affairs, responsible for preaching Islam, theology and the Arabic language in Egypt and the world. Al-Azhar Senior Scholars are to be consulted in matters pertaining to Islamic law.


The post of Al-Azhar Grand Sheikh is independent and cannot be dismissed. The method of appointing the Grand Sheikh from among members of the Senior Scholars is to be determined by law.

The State shall ensure sufficient funds for Al-Azhar to achieve its objectives.


All of the above is subject to law regulations.

...

Article 6.... No political party shall be formed that discriminates on the basis of gender, origin or religion.

...

Article 10. The family is the basis of the society and is founded on religion, morality and patriotism.


The State is keen to preserve the genuine character of the Egyptian family, its cohesion and stability, and to protect its moral values, all as regulated by law.....

Article 11. The State shall safeguard ethics, public morality and public order, and foster a high level of education and of religious and patriotic values, scientific thinking, Arab culture, and the historical and cultural heritage of the people; all as shall be regulated by law.

...

Article 43. Freedom of belief is an inviolable right.

The State shall guarantee the freedom to practice religious rites and to establish places of worship for the divine religions, as regulated by law.

Article 44. Insult or abuse of all religious messengers and prophets shall be prohibited....

Article 60.... Religious education and national history are core subjects of pre-university education in all its forms....

UPDATE: Another provision of interest is Article 219: "The principles of Islamic Sharia include general evidence, foundational rules, rules of jurisprudence, and credible sources accepted in Sunni doctrines and by the larger community."

Court Dismisses Challenge To City's Ban On Unattended Park Displays; Critics Plan Live Nativity Scene Instead

After denying a preliminary injunction earlier this month (see prior posting), a California federal district court this week in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 29 2012) dismissed a challenge to a Santa Moncia (CA) ordinance that prevented a group from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. The court rejected plaintiff's contention that the City’s ordinance banning all unattended displays in Palisades Park violates the 1st Amendment's Free Speech and Establishment Clauses. Christian Post reported yesterday that a coalition of Christian groups plans to hold a Live Nativity Display in Palisades Park on Dec. 8. This is permissible since the city's ordinance bars only unattended displays.

British "Free Schools" Must Teach Evolution In Science Classes

In Britain, Free Schools are alternative state-funded schools set up in response to local demands. The first Free Schools opened in 2011. In January of this year, Britain's Department for Education revised its funding agreement for Free Schools to prevent the teaching of creationism in science classes, allowing it to be taught only in religious education classes. (The Guardian). Now, after pressure by the Royal Society as well as secular and humanist groups, the Department for Education has taken the next step.  Free Schools also may not omit evolution from their science curriculum. Instead, according to Thursday's Guardian, a new clause has now been placed in funding agreements with Free Schools requiring them to "make provision for the teaching of evolution as a comprehensive, coherent and extensively evidenced theory." The Department for Education has approved three Free Schools run by groups with creationist views, though only one of these schools has opened so far. [Thanks to Scott Mange for the lead.]

Egypt's Constituent Assembly Hurriedly Adopts New Constitution

Egypt's constituent assembly hurriedly completed its work on a new constitution yesterday. (Reuters). President Morsi has said that his controversial decrees that have sparked over a week of protest will end when the people vote on the constitution. CTV News reports that the new constitution, which contains over 230 articles, was adopted by an Islamist dominated body: "Of the 85 members in attendance, there was not a single Christian and only four women, all Islamists." Reuters describes the new draft as leaving the status of Islam unchanged, in that it keeps a provision making the principles of Islamic law the main source of legislation.  However it adds a new provision that the Sunni center of learning, Al-Azhar, must be consulted on "matters related to the Islamic sharia." Human Rights Watch offers this evaluation of the new document:

Article 43 on freedom of religion limits the right to practice religion and to establish places of worship to Muslims, Christians, and Jews. Previous drafts had provided for a general right to practice religion but limited the establishment of places of worship to adherents of these three Abrahamic religions. Article 43 discriminates against and excludes followers of other religions, including Egyptian Bahais. Under former President Hosni Mubarak, security forces would frequently arrest religious minorities including Shia, Ahmadis, Bahais, and Quranists because of their beliefs....

One positive development is that the final draft no longer includes what had been article 68 in earlier drafts on women’s rights, which stipulated that equality for women would be subject to conformity with rulings of Islamic law, a provision strongly promoted by Salafi members of the assembly. However, the draft no longer lists “sex” as one of the grounds for prohibiting discrimination, as no grounds are named. Article 30 now states that, “Citizens are equal before the law and equal in rights and obligations without discrimination,” without specifying whom this provision covers.

First Lady Conducts Preview Of White House Christmas Decorations

According to the White House website, on Wednesday First Lady Michelle Obama held a press preview of this year's White House Christmas holiday decorations. This year's theme is "Joy to All."  The White House features 54 decorated trees. Two rooms pay tribute to the sacrifices of the Armed Forces and their families. Children of military families attended the press preview. The 18-foot tall official White House Christmas tree in the Blue Room is trimmed with ornaments made by military children living on bases around the world.

Christian Proselytizers May Add Arab-American Chamber of Commerce As Sec. 1983 Defendant

In Acts 17 Apologetics v. City of Dearborn, (ED MI, Nov. 27, 2012), a Michigan federal district court ruled that the Arab-American Chamber of Commerce (AACC) may be added as a defendant in a 42 USC Section 1983 civil rights action brought against the city of Dearborn, its mayor and police officials by a Christian group whose purpose is to evangelize Muslims.  Members of the group, Acts 17 Apologetics, were acquitted on breach of the peace charges that had been filed against them for proselytizing at the Arab International Festival. (See prior posting.)  The Christian group then sued, alleging, among other things, a civil conspiracy to violate their 1st, 4th and 14th Amendment rights.  In allowing plaintiffs to file an amended complaint to add AACC as a defendant, the court held that a private party such as AACC could be found to be a state actor if it was jointly engaged with state officials in an action taken by the officials. American Freedom Law Center issued a press release announcing the decision.

Russian Court Says Pussy Riot Video Is Extremist and Must Be Removed From Websites

In Russia yesterday, the Zamoskvoretsky District Court in Moscow court ruled that four Internet videos of the punk rock group Pussy Riot are "extremist" and must be removed from a list of websites to which they have been uploaded. The best known of the videos is a montage of the group performing a prayer in punk rock form in Moscow's Christ the Savior Cathedral. The lyrics ask the Virgin Mary to "chase Putin out." (See prior posting.) Judge Marina Musimovich said the videos include "words and actions which humiliate various social groups based on their religion."  Financial Times and BBC News report on the decision. RAPSI has a transcript of the live blogging from the trial (Part 1, Part 2). An appeal of the decision may be filed within one month, however since the court has refused to permit the one Pussy Riot member who is not in jail to intervene as a party to the proceedings in this case, apparently she may not file an appeal. The only parties were the prosecutor and Russia's justice ministry.

Rev. Schuller Gets Only Limited Amounts In Crystal Cathedral Bankruptcy

In In re Crystal Cathedral Ministries, (CD CA Bkrpt., Nov. 26, 2012), a California federal bankruptcy court ruled on multi-million dollar claims against Crystal Cathedral by its former leader Rev. Robert H. Schuller and his wife Arvella Schuller. As reported by the Orange County Register, the court, in the Chapter 11 reorganization, allowed claims of $615,625 by Schuller for unpaid compensation, housing allowances and health care premiums.  The court allowed none of the claims by Schuller's wife.  The court disallowed Schuller's copyright infringement claims, finding, among other things, that Schuller's Hour of Power television program was a work for hire owned by Crystal Cathedral which was Schuller's employer. Claims by Schuller's daughter and son-in-law totaling $77,615 were also allowed. (See prior related posting.)

Group Has Standing To Sue Over Jesus Statue On Forest Service Land

In Freedom From Religion Foundation, Inc. v. Weber, (D MT, Nov. 27, 2012), a Montana federal district court held that an advocacy organization has standing to bring an Establishment Clause challenge to the decision by the U.S. Forest Service to allow the continued presence of a statue of Jesus on National Forest Service land within Whitefish Mountain Resort. (See prior posting.) The court found standing because one of FFRF's members had standing to sue in his own right.  The court rejected defendants' motion to dismiss after FFRF filed an affidavit from one of its members who lives 15 miles from the statue who said he is a frequent skier at the resort; he has skied past the statue many times previously and intends to again this winter; and he is a non-believer who considers the statue religious in nature and offensive. AP reports on the decision.

Divided 8th Circuit Panel Issues Stay Pending Appeal In Contraceptive Mandate Case

The U.S. 8th Circuit Court of Appeals yesterday, by a 2-1 vote, issued a stay pending appeal in O'Brien v. Department of Health and Human Services. (Full text of order.)  In the case, a Missouri federal district court rejected a series of challenges to the contraceptive coverage mandate of the Affordable Care Act brought by a small business organized as a limited liability company and by its sole owner who is Catholic. (See prior posting.) American Center for Law and Justice issued a press release applauding the 8th Circuit's action.

Texas Seeks To Seize FLDS Church's Compound

Texas Attorney General Greg Abbott announced yesterday that his office has initiated legal proceedings in state court to seize as contraband the 1600-acre YFZ Ranch in west Texas that has functioned as a compound for the polygamous FLDS Church. According to Abbott, "the YFZ Ranch was purchased on the orders of Warren Jeffs, who sought a rural location where the FLDS could operate a polygamist compound where the systemic sexual assault of children would be tolerated without interference from law enforcement authorities." In 2008, a high profile raid on the ranch led to the removal of 415 children by the Texas Department of Family and Protective Services. (See prior posting.)  According to the Search and Seizure Warrant and the Affidavit supporting the warrant filed in state district court, the property "has been used in the commission of Texas Penal Code offenses of first and second degree felonies, including Sexual Assault, Bigamy, Money Laundering and Engaging in Organized Criminal Activity." AP reports on developments.

Egypt Convicts 8 Connected With "Innocence of Muslims" In Abstentia For Capital Crimes

In what may be largely a symbolic move, yesterday a court in Egypt convicted and sentenced to death in abstentia 8 individuals who are connected with the controversial film "Innocence of Muslims."  AP and NBC report on the convictions for "intentionally committing acts to harm the unity of the country and peace of its land;" "calling to divide the country into small states on a sectarian basis and harming national unity;" and "using religion to promote extremist ideas resulting in religious division and disrespect [of] heavenly religion."   The best known of those convicted are the film's producer Mark Basseley Youssef (also known as Eli Basily), and anti-Muslim Florida pastor Terry Jones. Also convicted were 6 other Coptic Christians-- two of whom work in the U.S. for the Coptic group Sadek that calls for an independent Coptic state; a priest who hosts TV programs from the U.S.; a lawyer living in Canada who has previously sued the Egyptian government over riots in 2000 that left 21 Christians dead; and a woman who converted to Christianity and is a critic of Islam.

Decisions involving capital punishment must be reviewed by the country's chief religious authority.  Also, defendants convicted in abstentia of a capital crime would be automatically entitled to an appeal, and thus a retrial, if they were to return to Egypt. Maximum sentences are common in Egypt in cases tried in abstentia.

Suit Challenges Village's Policy That Excludes Religious Programs In Community Rooms

Liberty Counsel, a Christian educational and advocacy group, announced yesterday that it has filed suit in an Illinois federal district court challenging Plainfield, Illinois' policy regarding use of its Community Rooms by outside groups.  The Policy (full text), while permitting a wide variety of meetings, programs and activities, excludes use of the rooms for a dozen specific types of activities including use for "Religious services or other religious purposes."  The complaint (full text) in Liberty Counsel, Inc. v. Village of Plainfield, Illinois, (ND IL, filed 11/28/2012), says that Liberty Counsel wishes to use a community room to present an educational program promoting a Christian view of the founding of America, but is precluded from doing so under the village's policy.  The group claims that this violates provisions of the 1st and 14th Amendments, as well as the Illinois Religious Freedom Restoration Act.

Challenge To Contraceptive Coverage Mandate By Pittsburgh Diocese Dismissed On Ripeness and Standing Grounds

In Zubik v. Sebelius, (WD PA, Nov. 27, 2012), a Pennsylvania federal district court dismissed on ripeness and standing grounds a challenge by the the Catholic Diocese of Pittsburgh, Catholic Charities of Pittsburgh and Catholic Cemeteries Association of Pittsburgh to the contraceptive coverage mandate issued under the Affordable Care Act. The court concluded that:

the safe harbor provisions of the regulation itself protects all of the Plaintiffs from any potential enforcement action until at least January 1, 2014.  Further, the health care plan offered by the Diocese, as well as three of the four health care plans offered by Catholic Cemeteries, share additional protection under the regulations insofar as they are each grandfathered under the ACA.... Defendants have committed to amending the preventive services coverage regulations well before January 2014 to accommodate the religious objections of organizations such as Plaintiffs.

Trib Total Media reports on the decision.

UPDATE: On Jan. 23, plaintiffs filed an appeal with the 3rd Circuit. (TribLive).

Suit Claims "Conversion Therapy" For Gays Violates State Consumer Fraud Act

The Southern Poverty Law Center announced yesterday that it has filed a first-of-its-kind lawsuit in state court in New Jersey on behalf of 6 plaintiffs seeking equitable relief and damages for fraud against an organization that offers "conversion therapy" to gay men.  Defendant is JONAH, Jews Offering New Alternatives for Healing.  The complaint (full text) in Ferguson v. JONAH, (NJ Super Ct., filed 11/27/2012) alleges various violations of New Jersey's Consumer Fraud Act. The Daily Beast reports in depth on the lawsuit.

Poland's Constitutional Court Bars Kosher and Halal Slaughter, But Decision Is Pre-empted By New EU Regulation

AP reports that Poland's Constitutional Tribunal yesterday held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws, and that the agriculture minister unconstitutionally exceeded his powers when he issued regulations in 2004 permitting kosher and halal slaughter.  AFP reports, however, that the ruling is largely symbolic because on January 1, 2013, European Union Council Regulation No. 1099/2009 creating uniform EU rules on animal slaughter goes into effect. That Regulation permits ritual slaughter without stunning so long as the slaughter takes place in a slaughter house.  January 1 is the same date on which the Polish court's ruling takes effect, so-- according to Poland's Agriculture Minister-- it will be immediately overriden by the EU rules. Animal rights activists say it is possible for Poland to request and exception from the regulation.  Poland is a leading exporter of kosher and halal meat to other European countries, last year exporting $259 million worth.

Appeals Court Reverses Denial of Name Change After Gender Reassignment

In In re Steven Charles Harvey, (OK Ct. Civil App., Nov. 20, 2012), an Oklahoma appeals court held that a trial court judge abused his discretion in denying Steven Charles Harvey, who was undergoing a sex change, the right to change his name to Christie Ann Harvey. The trial judge (full text of trial court opinion) had held that it would assist that which is fraudulent to allow the name change because "a sex change cannot make a man a woman or a woman a man." The trial judge argued this could lead to inadvertent or illegal same-sex marriage, or, in case of a crime, could lead police to ignore a female suspect because they had retrieved male DNA.  In support of his denial of the name change petition, the trial court judge quoted from the Biblical book of Genesis: "So God created man in His own image, in the image of God created he him; male and female created he them...." and went on to say: "The DNA code shows God meant for them to stay male and female." The appeals court agreed with petitioner that there is nothing fraudulent in the use of a traditionally female name by one with male DNA. The Oklahoman reports on the appeals court decision.

Saudi-Backed Interreligious Center Opens In Austria

Yesterday, the inauguration ceremony marking the official opening of the King Abdullah bin Abdulaziz International Centre for Interreligious and Intercultural Dialogue (KAICIID) was held in Vienna, Austria, the Centre's home base.  Among those speaking at the opening ceremony was U.N. Secretary General Ban Ki-moon (full text of remarks). As reported by Reuters, KAICIID was launched by Saudi Arabia as an international organization with a multi-faith board to foster interfaith understanding and help deal with health crises. According to the Huffington Post, the Centre is backed by an international treaty signed by Austria, Spain and Saudi Arabia, with support from the Vatican. Saudi Arabia is funding the start-up costs and the first 3 years' budgets. Some in Austria, as well as some Saudi dissidents, are critical of the Centre, fearing that it will focus on the strict Wahhabi version of Islam. It is expected that the Centre's board will eventually hold a meeting in Saudi Arabia, which will pose the question of whether the nation will allow board member Rabbi David Rosen, who is an Israeli citizen, to attend.

Court Rejects Establishment Clause Challenge To Seizure of Funds

In Midamar Corp. v. United States, (ND IA, Nov. 19, 2012), an Iowa federal district court denied a motion by a company that is a leading supplier of Halal food to order release of $454,000 seized by the government from the company's bank account.  According to the Washington Post, the government is suggesting that the company improperly branded and sold meat products as meeting Muslim dietary requirements when that was not the case.  Rejecting the company's motion, the court said in part:

Next, Midamar argues that the court must quash the warrant because, according to Midamar, the government presumably intends to seek an indictment charging Midamar with fraud, and any fraud charges would require the court to define Halal, a religious term without an agreed-upon meaning, in violation of the Establishment Clause of the First Amendment of the United States Constitution.  The court finds that such argument is unavailing.  Midamar cites no  authority in support of its contention that this is an appropriate basis to quash a warrant.  Moreover, such an argument is premature.  The government has not filed any charges against Midamar and, consequently, the court is without jurisdiction to consider the constitutionality of any potential fraud charges.

Priest's Conviction Was Based On Excessive Religious Evidence

In State of Minnesota v. Wenthe, (MN Ct. App., Nov. 26, 2012), a Minnesota appeals court held that the state's clergy sexual conduct statute is not facially invalid under the Establishment Clause.  However, the court upheld the as applied challenge to the law raised by a priest who had been convicted under it for having sex with a woman for whom he served as confessor. The court held that the conviction was invalid under the Establishment Clause because it was based on excessive religious evidence:

the religious evidence provided the jury with religious standards for judging appellant’s conduct.  It invited the jury to determine appellant’s guilt on the basis of his violation of Roman Catholic doctrine, his breaking of the  priestly vows of celibacy, and his abuse of the spiritual authority bestowed on Roman Catholic priests; additionally, the evidence invited concern about the response of church authorities to the victim’s complaint.

The Minneapolis Star-Tribune reports on the decision.

Supreme Court Sends Free Exercise Challenge To Affordable Care Act To 4th Circuit

Yesterday, in an unusual move, the U.S. Supreme Court revived a 4th Circuit case which challenges the Affordable Care Act (ACA) on 1st Amendment, 14th Amendment and RFRA grounds. In Liberty University v. Geithner, plaintiffs claim, among other things, that the ACA permits federal funding of abortions in violation of the free exercise clause and the Religious Freedom Restoration Act. They also claim that the ACA violates the Establishment Clause and equal protection clause because the narrow religious exemptions in the Act favor certain religious adherents. The 4th Circuit dismissed the case, holding that the federal tax Anti-Injunction Act barred the lawsuit, and the Supreme Court declined to review that decision. Plaintiffs, however asked for a rehearing on the decision to deny review, since earlier this year, in National Federation of Independent Business v. Sebelius, the Supreme Court held that the Anti-Injunction Act does not bar a challenge to the ACA.  Yesterday, the Supreme Court held (Order List, Docket No. 11-438):

The petition for rehearing is granted. The order entered June 29, 2012, denying the petition for a writ of certiorari is vacated. The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of National Federation of Independent Business v. Sebelius.

Liberty Counsel issued a press release applauding the court's action. Christian Science Monitor also reports on the court's action. (See prior related posting.)

NYT Discloses More Details On Making of Film "Innocence of Muslims"

Today's New York Times carries a front-page article revealing new details on Nakoula Basseley Nakoula and his making of the controversial film "Innocence of Muslims." A trailer for the film sparked demonstrations around the world. (See prior posting.) According to the Times:

The making of the film is a bizarre tale of fake personas and wholesale deception. And as with almost everything touched over the years by Mr. Nakoula — a former gas station manager, bong salesman, methamphetamine ingredient supplier and convicted con man — it is almost impossible to separate fact from fabrication.

Scotland Reports Data On Religiously Motivated Hate Crimes

On Friday, the Scottish government released a new report, Religiously Aggravated Offending In Scotland  2011-12. The Executive Summary says in part:

There has been an increase in the number of recorded religious aggravation charges in 2011-12 compared with previous years. For this report, 876 charges with a religious aggravation reported in 2011-12 were analysed, compared with 693 charges in 2010-11. This is an increase of 26%..... [T]his increase may be partly due to increased awareness, reporting and recording of these crimes....

Although the number of football-related charges rose in the last year by 16% (from 231 to 267) the proportion went down from 33% to 31% of charges. The number of charges occurring in football stadiums also decreased from 90 (13%) to 67 (8%). This reduction in charges may in part be explained by the increased focus on football-policing and supporter conduct through the work of the Joint Action Group on Football, established in 2011.

Roman Catholicism and Protestantism were most often the religions that were the subject of abuse. The proportional spread of the religions that were targeted was similar to the previous year: 57.7% in 2010-11 and 58.1% in 2011-12 for Roman Catholicism; and 36.5% in 2010-11 and 40.3% in 2011-12 for Protestantism.

Police officers were the most common target of religiously aggravated offending, in over half (51%) of all charges.

Swartzentruber Amish Group Moving From Pennsylvania To Upstate New York

AP reported Saturday that the 21-family congregation of Swartzentruber Amish who have lived in western Pennsylvania are moving to St. Lawrence County in upstate New York rather than continue their battles with local officials over sewage disposal codes. (See prior posting.) Land values in western Pennsylvania have been rising because of the Marcellus Shale natural gas boom.

Recent Articles of Interest

From SSRN:

• June Mary Makdisi, Application of the Principle of Totality and Integrity in American Case Law, (National Catholic Bioethics Quarterly, 2012).
• Avihay Dorfman, Freedom From Religion, (July 31, 2012).
• Gordon A. Christenson, 'Liberty of the Exercise of Religion' in the Peace of Westphalia, (Transnational Law & Contemporary Problems, Vol. 21, 2012).
• Michael  J.T. McMillen, Islamic Home Purchase Financing: A Conceptual Overview, (November 17, 2012).
• Marina Lostal Becerril, The Meaning and Protection of ‘Cultural Objects and Places of Worship’ under the 1977 Additional Protocols, (59 Netherlands International Law Review 3 (2012), pp. 455-72).
• Marina Lostal Becerril, Challenges and Opportunities of the Current Legal Design for the Protection of Cultural Heritage during Armed Conflict, (International Symposium on Cultural Heritage Protection in Times of Risk: Challenges and Opportunities. Yildiz Technical University, ICOMOS ICORP,. Istanbul (Turkey) 2012).
• Nicholas Hatzis, The Church-Clergy Relationship and Anti-Discrimination Law, (Ecclesiastical Law Journal, Forthcoming).
• Geoffrey P. Miller, Taxation in the Bible, (Oxford Encyclopedia of the Bible and Law, Forthcoming).
• Farrah Ahmed and Jane Calderwood Norton, Religious Tribunals, Religious Freedom, and Concern for Vulnerable Women, (Child and Family Law Quarterly, Forthcoming).
• Mohammad Fadel, Seeking an Islamic Reflective Equilibrium: A Response to Abdallahi A. An-Na'im's Complementary, Not Competing, Claims of Law and Religion: An Islamic Perspective, (Pepperdine Law Review, Vol. 39, p. 1257, 2013).
• Avishalom Westreich, Talmud Based Solutions to the Problem of the Agunah, (Agunah Research Unit Volume 4, Deborah Charles Publications, 2012).
• Frederick C. DeCoste, Hitler's Conscience, Redemptive Political Emotions, and the Politics of Fear, (November 23, 2012).

SSRN --from Erasmus Law Review Vol. 5, No. 1, 2012:

• Wouter De Been and Sanne Taekema, Religion in the 21st Century Debating the Post-Secular Turn.
• Veit Bader, Post-Secularism or Liberal-Democratic Constitutionalism?
• Markha Valenta, Pluralist Democracy or Scientistic Monocracy? Debating Ritual Slaughter.
• Ann-Sophie Vandenberghe, Regulating the Relationship between State and Religion: An Economic Approach.
• Kristin  A.M. Henrard, Duties of Reasonable Accommodation in Relation to Religion and the European Court of Human Rights: A Closer Look at the Prohibition of Discrimination, the Freedom of Religion and Related Duties of State Neutrality.
• Marlies Galenkamp, Locke and Bayle on Religious Toleration.

From SmartCILP:

• Amy Adler, The First Amendment and the Second Commandment, 57 New York Law School Law Review 41- 58 (2012/13).
• Alan Brownstein, Continuing the Constitutional Dialogue: A Discussion of Justice Stevens's Establishment Clause and Free Exercise Jurisprudence, 106 Northwestern University Law Review 605-656 (2012).
• Erwin Chemerinsky, A Fixture on a Changing Court: Justice Stevens and the Establishment Clause, 106 Northwestern University Law Review 587-603 (2012).
• Nicole Stelle Garnett, Are Charters Enough Choice? School Choice and the Future of Catholic Schools, 87 Notre Dame Law Review 1891-1916 (2012).
• Edward Whelan, The HHS Contraception Mandate vs. The Religious Freedom Restoration Act, 87 Notre Dame Law Review 2179-2190 (2012).

Britain's House of Lords Debates Role of Religion In Society

Last Thursday, Britain's House of Lords held a 90-minute debate on the role of religion in society in the United Kingdom. (Full text of the debate.) Lords from numerous faith traditions spoke. The concluding statement was made by Baroness Warsi, Minister for Faith and Communities, who said in part:

This Government believe that religion plays a vital role in British society. Not only do we support people in their right to follow a faith if they choose to do so; we also celebrate faith and faith communities' contribution to society...

Places of worship of different faiths in a town or city can sometimes be unaware of the work each is doing, often to address similar problems. The Government want to help build effective, co-operative working relationships between people of different faiths.... The Government are also happy to support A Year of Service, to highlight and link up faith-based volunteering efforts during Her Majesty the Queen's Diamond Jubilee year....

The Government are also committed to maintaining the status of religious education as a compulsory subject that all pupils must study throughout their schooling, subject to parental choice. Religious education is important so that children can understand the history that has shaped the values and traditions of this country, forming a key part of promoting the spiritual, moral, social and cultural development of children and young people.... The Government also remain committed to the provision of collective worship in schools-or, as I knew them, assemblies.

... UK has a strong Christian heritage.... Britain is proud of its established church and Europe must be more confident in its Christianity. It is therefore right that religious education reflects the fact that the religious traditions of Great Britain are in the main Christian. Last year, every state school in England was provided with a King James Bible to mark its 400th anniversary and recognise the huge influence it has had on our culture, language, society and values....

The noble Lord, Lord Curry, also raised concerns about the perceived marginalisation of Christians. I am in receipt of the Christians in Parliament All-Party Parliamentary Group report setting out these concerns, and we are currently considering a response to that....

This Government believe that faith should have a seat at the table in public life.... [T]his is not a position of privilege but that of a strong contributor to the public debate.... This Government have held faith receptions at Downing Street for major festivals: Vaisakhi, Eid, Hanukkah and Diwali-and, yes, it was right that this coalition Government introduced the celebration of Easter as well.

Preachers' Access To Tour of Lights Festival In Court Again

Last year, a Minnesota federal district court granted a preliminary injunction to prevent city of Duluth police officers from interfering with activities of two street preachers at the Bentleyville Tour of Lights-- a holiday festival held each year on city property, but sponsored by a private non-profit group. (See prior posting). This year, the city is attempting to limit the preachers to a new "First Amendment zone" created in a parking lot outside one of the entrances to the festival. According to the Duluth News Tribune, last Tuesday the preachers filed a new motion in federal district court again seeking an order that officials allow them inside the park during the Tour of Lights. The city, however, says it has negotiated a new contract with festival sponsors that allow them to set rules on who is allowed in the display.

UPDATE: Here is the full text of the motion to enforce the preliminary injunction and hold defendants in contempt.

Recent Prisoner Free Exercise Cases

In Pouncil v. Tilton, (9th Cir., Nov. 21, 2012), an inmate challenged under RLUIPA prison officials' denial to him of conjugal visits with his second wife. The 9th Circuit had that the statute of limitations had not run on his claims despite the fact that he had earlier been denied conjugal visits with his first wife  pursuant to the same regulation.

In Cartwright v. Woody, 2012 U.S. Dist. LEXIS 165122 (ED VA, Nov. 19, 2012), a Virginia federal district court dismissed an inmates complaint that inmates must sometimes place their names on a sign-up sheet to attend religious services, and that more Bibles than Qur'ans are available at the jail.

In Contreraz v. Adams, 2012 U.S. Dist. LEXIS 165884 (ED CA, Nov. 19, 2012), a California federal magistrate judge refused to permit an inmate to proceed in forma pauperis  in his attempt to obtain a religious exemption from the prison's grooming requirements because plaintiff had brought at least 3 other suits that were dismissed as frivolous.

In McDaniel v. Lanigan, 2012 U.S. Dist. LEXIS 166716 (D NJ, Nov.21, 2012), a New Jersey federal district court dismissed, with leave to amend, an inmate's claims relating to denial of Halal meals to Muslim inmates and denial to Jewish inmates of kosher milk, glatt kosher meals and wearing of the tallit, since it was not clear how any of these impacted plaintiff.

In Desper v. Ponton, 2012 U.S. Dist. LEXIS 166546 (ED VA, Nov. 20, 2012), a Virginia federal district court dismissed an inmate's free exercise and RLUIPA challenges to a sign-up policy for religious services, and a policy discouraging transient offenders at reception centers from receiving publications, including Bible study materials.

In Williams v. Fluaitt, 2012 U.S. Dist. LEXIS 166820 (ED WA, Nov. 21, 2012), a Washington federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 166826, Oct. 31, 2012) and denied an inmate's request for a preliminary injunction because the relief requested (relating Ramadan meal request contracts and denial of separate Nation of Islam services) were unrelated to the complained violation (advance sign-up for Ramadan meals).

Settlement Allows Florida Christian College Students To Qualify For State Grant Program

A settlement was reached earlier this month in Florida Christian College v. Shanahan, a federal court challenge to Florida Christian College's exclusion from the Florida Resident Access Grant program. (See prior posting.) The state had contended that the school did not meet the "secular purpose" requirement for participation that is imposed by Florida law.  The Lakeland, Florida Ledger reported Friday that the settlement:

will allow four students who were named plaintiffs in the case to receive so-called FRAG grants during the spring semester of this academic year — and will admit the college into the program for the 2013-14 academic year.

Also, the settlement indicates the state Department of Education will revise the way it determines whether religious colleges qualify for the program, including getting rid of what was dubbed a "secularity checklist.

Alliance Defending Freedom issued a Nov. 15 press release reporting on the settlement, and also made available the full text of the Mediation Settlement Agreement.

Zimbabwe Supreme Court Orders Break-Away Anglican Bishop To Return Church Properties

AP reports that Zimbabwe's Supreme Court on Monday ruled that Anglican Church property in the country must be returned by break-away Bishop Nolbert Kunonga to the Anglican Province of Central Africa.  Kunonga was excommunicated in 2007 for inciting violence in sermons supporting President Robert Mugabe's ZANU-PF Party.  Kunoga formed a new diocese and took over the Cathedral in Harare and other church property with the help of police. Kunoga says he left the Anglican Church because of its position on gay marriage. According to the Financial Gazette, the Anglican Province is undertaking an audit of returned properties to determine damage and missing items.

In Recently Released Opinion, Court Dismisses Damage Claim Against Proponents of Ground Zero Mosque

In Forras v. Rauf, (NY County Sup. Ct., Sept. 26, 2012) (a decision that was not made available until Nov. 20), a New York trial court dismissed plaintiff's suit to recover damages against defendant who proposed to construct a mosque and Islamic cultural center near Ground Zero in New York City.  Plaintiff, who leased nearby office space also used as a part-time residence, alleged nuisance, negligent infliction of emotional distress and assault. He claimed he suffered increased anxiety and fear due to Islamic rituals in one room  inside the building. The court found that many of the alleged injuries were the result of the attack on 9-11 and not because of the proposed mosque construction.

TRO Issued To Uphold Student's Religious Objections To Wearing ID Badge With RFID Chip

The Rutherford Institute announced Wednesday that it has obtained a temporary restraining order in a suit filed in state court in Bexar County, Texas on behalf of high school student Andrea Hernandez. Plaintiff objects for religious reasons to wearing a Smart ID badge that is implanted with an RFID chip as part of the school's Student Locator Project. The complaint (full text) in Hernandez v. Northside Independent School District, says that plaintiff objects on the basis of scriptures in the book of Revelation that "an individual's acceptance of a certain code, identified with his or her person, as a pass conferring certain privileges from a secular ruling authority, is a form of idolatry or  submission to a false god." Plaintiff also refused the school's proposed accommodation under which the RFID chip would be removed, but plaintiff would still wear the ID badge around her neck as a symbol of her participation in the school's project. The suit claims that the school is violating plaintiff's rights under the Texas Religious Freedom Act. It also alleges that plaintiff's free speech rights were infringed when school officials refused to allow her to distribute petitions and fliers at school criticizing the Program. [Thanks to Mark Scarberry via Religionlaw for the lead.]

Germany's Federal Labor Court Rules On Church Employees' Right To Strike

Reuters yesterday reported that Germany's Federal Labor Court has handed down a decision which has both sides claiming victory on the question of whether employees of church organizations have the right to strike. Together, Catholic and Protestant schools, hospitals and social service agencies employ 1.3 million people in Germany.  Historically, the church groups, relying on the provision in the German constitution that guarantees them the right to manage their own internal affairs, have barred strikes in favor of mediation in labor disputes.  However, Germany's service sector union says that church organizations have undercut wages in recent years by outsourcing many jobs. The Labor Court concluded that: "Limiting the churches' right to self-determination by a strike is not illegal in all cases."  However, it also said that strikes "severely limit social ministries and damage the credibility of the church."  It said churches should allow unions more rights in the mediation process if they want to avoid strikes. According to Deutsche Welle, both sides say they will appeal the Federal Labor Court's ruling to the Federal Constitutional Court. Meanwhile a case from Romania under consideration by the European Court of Human Rights may resolve the issue of whether churches can prohibit strikes or unionization.

Fort Worth Diocese Settles Sex Abuse Lawsuit

The Fort Worth (TX) Catholic diocese on Tuesday settled a lawsuit brought against it by a man who was sexually abused by a priest between 1982 and 1987, beginning when plaintiff was 16 years old.  The Fort Worth Star Telegram reports that under the settlement, accused priest Rev. William Paiz will not work  in a position that puts him in contact with children or young adults and Paiz will not be allowed to present himself as a priest. He will be supervised by Claretian Order officials. Also the diocese must publicly acknowledge that  plaintiff's allegations are credible,

Opus Dei Sues Game Maker In Denmark For Trademark Infringement

AP reported yesterday that in Denmark, the Catholic organization Opus Dei is suing the Danish company Dema Games for trademark infringement.  The company is selling a philosophy-themed strategy-based card game called "Opus Dei. Existence After Religion." The lawsuit demands damages equivalent to $51,500 (US), cancellation of the company's trademark registration for the game,and closure of the company's website where the game is for sale. Dema Games says that no one can claim exclusive rights to religious concepts.

Obama Issues Presidential Proclamation For Thanksgiving Day

President Obama this week issued the official Presidential Proclamation-- Thanksgiving Day, 2012 setting today as a National Day of Thanksgiving. The proclamation reads in part:

When President George Washington marked our democracy's first Thanksgiving, he prayed to our Creator for peace, union, and plenty through the trials that would surely come. And when our Nation was torn by bitterness and civil war, President Abraham Lincoln reminded us that we were, at heart, one Nation, sharing a bond as Americans that could bend but would not break....

On Thanksgiving Day, individuals from all walks of life come together to celebrate this most American tradition, grateful for the blessings of family, community, and country. Let us spend this day by lifting up those we love, mindful of the grace bestowed upon us by God and by all who have made our lives richer with their presence.

Water Tower Cross Eliminated By Town After Complaint

As reported yesterday by the Bolingbrook Patch, the Chicago (IL) suburb of Alsip this year will not display a cross that it has put up for nearly 35 years at Christmas time on the city's water tower. A letter to residents from the town's mayor says that a complaint by the Freedom From Religion Foundation led to the decision, because "the Village cannot afford to waste any tax dollars on a lawsuit that simply cannot be won."  The mayor says that in future years, a different holiday decoration will be placed on the water tower.

Good News Clubs Challenge California's Requirement That Schools Charge For Space Used For Religious Services

The Good News Clubs filed suit in federal district court on Monday challenging the constitutionality of California Education Code Secs. 38131(b)(3) and 38134(d) which together require schools to charge an amount at least equal to direct costs for use of school space for religious services, but make charging of fees discretionary when school space is used by other civic groups.  The complaint (full text) in Child Evangelism Fellowship, Inc. of West Orange County v. Buena Park School District, (CD CA, filed 11/19. 2012), alleges that the school district's regulations that allow use without charge of school space by nonprofit organizations organized to promote youth and school activities, but not to the after-school religious activities of Good News Clubs amounts to unconstitutional viewpoint discrimination, as well as infringing free exercise, equal protection and establishment clause rights. The American Center for Law and Justice issued a press release announcing the filing of the lawsuit.

Church's RLUIPA Suit Dismissed On Ripeness Grounds, Avoiding Decision On Prudential Standing

In Cassidy v. City of Brewer, (D ME, Nov. 19, 2012), a Maine federal district court dismissed on ripeness grounds a RLUIPA religious discrimination claim because plaintiff did not appeal the decision of the city's code enforcement officer to the zoning board of appeals. As reported by the Bangor Daily News, Rock Church had wanted to expand in rented space in a shopping center, but the code enforcement officer held that the expansion would lose the church's status as a nonconforming use.  The court held that it did not need to decide whether the church's landlord as a RLUIPA plaintiff must meet prudential standing requirements as well as Article III standing requirements, saying:

If he must, then the Magistrate Judge is certainly correct that this commercial landlord plaintiff, who is not a religious institution and whose church tenant has abandoned his lease, does not meet those requirements in bringing this RLUIPA challenge against the City of Brewer.  But there are cases that read RLUIPA’s language as requiring that a plaintiff meet only the Article III standing requirements and not the additional prudential requirements.

The federal magistrate judge's opinion in the case, dealing at length with the standing issue, is at  2012 U.S. Dist. LEXIS 165723 (Sept. 12, 2012).

Oklahoma High Court Dismisses Challenge To Voucher Program On Standing Grounds

Last March, an Oklahoma state trial court judge struck down Oklahoma's school voucher program for special needs students, finding that the program violates the state Constitution's ban on use of public funds to benefit any sectarian institution. (Constitution, Art. II-5). 38 of the 40 schools eligible to enroll students under the program are Christian schools. (See prior posting.) Now in Independent School District No. 5 of Tulsa County v. Spry, (OK Sup. Ct., Nov. 20, 2012), in a 7-2 decision, the Oklahoma Supreme Court reversed that decision on standing grounds. It held that the school districts which were plaintiffs in the lawsuit lack standing because they are not taxpayers who have a right to challenge the program, nor are the funds involved taxes from taxpayers in the districts' county revenue streams that a county assessor is improperly reducing or disposing of. Becket Fund issued a press release announcing the state Supreme Court's decision.

First Hindu Member of U.S. House Will Be Sworn In On Bhagavad Gita

Yesterday's Huffington Post reports that Tulsi Gabbard, the first Hindu elected to the U.S. Congress, will take her oath of office in January using the Bhagavad Gita, a sacred Hindu text. Gabbard, elected to represent Hawaii's 2nd Congressional district, was born in American Samoa and moved to Hawaii when she was 2 years old. Her father, a Samoan, was Catholic, while her mother was a convert to Hinduism. Gabbard follows the Vaishnava branch of Hinduism.  She served in the Hawaii state senate, and as a national guard member served in Kuwait and Iraq.  She takes the Congressional seat of Mazie Hirono, a Buddhist, who was elected to the U.S. Senate as its first Buddhist member.

Religious Composition of 113th Congress Compiled

Pew Forum last week released an analysis of the religious makeup of the new 113th Congress. Protestants hold 56% of the seats in Congress. Among Protestant groups, Baptists hold the largest number of seats-- 74 in all.  Catholics hold 30% of the seats, holding 5 seats more than in the last Congress.  6% of the members of the new Congress are Jewish, a loss of 7 seats from the 112th Congress.  Mormons hold almost 3% of the seats.  Reflecting increased diversity, the new Congress includes 3 Buddhists (including 1 for the first time in the Senate), 2 Muslims and, for the first time, a Hindu member. Opposing Views has further commentary on the data.

Court Denies Hobby Lobby and Its Owners A Preliminary Injunction Against Contraceptive Coverage Mandate

Another decision in the many challenges to the contraceptive coverage mandate under the Affordable Care Act was handed down yesterday. In Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, Nov. 19, 2012), an Oklahoma federal district court denied a preliminary injunction, rejecting both 1st Amendment and Religious Freedom Restoration Act claims by Hobby Lobby Stores, Inc., Mardel, Inc. and the Green family that owns and operates the closely held businesses. Plaintiffs asserted that their free exercise rights are infringed by requiring the companies' employee health insurance policies to cover contraceptive methods that they believe amount to abortion. The court held that secular, for-profit corporations do not have a constitutional right to the free exercise of religion. As to claims by the individual owners of the companies, the court found that the free exercise claims are not likely to succeed because the mandate is a neutral requirement of general applicability, and therefore need only meet the rational basis test.

Moving to the RFRA claim, the court concluded that business corporations are also not covered by its protections:

General business corporations do not, separate and apart from the actions or belief systems of their individual owners or employees, exercise religion.  They do not pray, worship, observe sacraments or take other religiously-motivated actions separate and apart from the intention and direction of their individual actors.  Religious exercise is, by its nature, one of those “purely personal” matters ... which is not the province of a general business corporation.

Finally the court concluded that the mandate does not impose a "substantial burden" on the free exercise rights of the individual owners of the business corporations:

[E]ven assuming, as appears to be the case with plaintiffs, that they object as a matter of religious faith to any act supporting or facilitating abortion, no matter how indirect, that does not end the issue. RFRA’s provisions do not apply to any burden on religious exercise, but rather to a “substantial” burden on that exercise.... [T]he particular “burden of which plaintiffs complain is that funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by health care providers and patients covered by [Hobby Lobby’s] plan, subsidize someone else’s participation in an activity that is condemned by plaintiff’s religion.”...  Such an indirect and attenuated relationship appears unlikely to establish the necessary “substantial burden.”...

UPDATE: A Becket Fund press release says that Hobby Lobby will appeal the decision.

UPDATE2: Plaintiffs on Nov. 20 filed with the 10th Circuit Court of Appeals a motion for an injunction pending appeal and a memorandum in support of the motion. (Full text).

Pakistan Court Drops Trumped-Up Blasphemy Charges Against Christian Girl

The Guardian reports that in Pakistan this week, the Islamabad high court dismissed blasphemy charges that had been brought against a Christian girl, Rimsha Masih.  The case, in which the girl was charged with burning pages from holy texts, gained heightened international attention after it was claimed that a local mullah had planted charred pages from a Qur'an in the papers that Masih was carrying in order to strengthen the case against her. Police in the case testified that there was no evidence against Masih who was released on bail in September. (See prior posting.)

UPDATE: The full text of the court's order quashing the charges is now available.

Cert. Filed In Challenge To State Findings On Reliance on God

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in American Atheists, Inc. v. Kentucky Office of Homeland Security, (cert. filed 11/13/2012). In the case, a Kentucky state appeals court rejected an Establishment Clause challenge to legislative findings in a state Antiterrorism Act about the necessity of reliance on God. (See prior posting.).The Kentucky Supreme Court denied review. Sunday's Louisville Courier-Journal reports on the petition for review.

Court Upholds Santa Monica's Ban On Park Christmas Display

AP reports that a California federal district court yesterday denied a preliminary injunction in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19 2012).  The suit involved a challenge to a Santa Moncia (CA) ordinance that prevented a group from continuing the 60-year tradition of erecting a series Christmas story dioramas in Palisades Park during the holiday season. (See prior posting.) In recent years, controversy has surrounded holiday displays in the park after secular groups won substantial space in a neutral lottery for space and put up secular and anti-religious signs. According to AP:

The judge, however, said Santa Monica proved that it banned the displays not to squash religious speech but because they were becoming a drain on city resources, destroying the turf and obstructing ocean views. Churches can set up unattended displays at 12 other parks in the city with a permit and can leaflet, carol and otherwise present the Christmas story in Palisades Park when it is open, she said.

UPDATE: The opinion in Santa Monica Nativity Scenes Committee v. City of Santa Monica, (CD CA, Nov. 19, 2012) is at 2012 U.S. Dist. LEXIS 167525.

Obama Speaks In Burma About Religious Freedom

As part of his trip to Burma (Myanmar), President Obama spoke today at the University of Yangon in Rangoon. (Full text of speech.) His speech included a plea for the country to deal with the ethnic-religious violence faced by the Rohingya Muslim minority, and the persecution of ethnic minority Chin Christians in Kachin state:

And this truth leads me to the third freedom that I want to discuss:  the freedom to worship -- the freedom to worship as you please, and your right to basic human dignity.

This country, like my own country, is blessed with diversity.  Not everybody looks the same.  Not everybody comes from the same region.  Not everybody worships in the same way.  In your cities and towns, there are pagodas and temples, and mosques and churches standing side by side.  Well over a hundred ethnic groups have been a part of your story.  Yet within these borders, we’ve seen some of the world’s longest running insurgencies, which have cost countless lives, and torn families and communities apart, and stood in the way of development.

No process of reform will succeed without national reconciliation.  (Applause.)  You now have a moment of remarkable opportunity to transform cease-fires into lasting settlements, and to pursue peace where conflicts still linger, including in Kachin State.  Those efforts must lead to a more just and lasting peace, including humanitarian access to those in need, and a chance for the displaced to return home.

Today, we look at the recent violence in Rakhine State that has caused so much suffering, and we see the danger of continued tensions there.  For too long, the people of this state, including ethnic Rakhine, have faced crushing poverty and persecution.  But there is no excuse for violence against innocent people.  And the Rohingya hold themselves -- hold within themselves the same dignity as you do, and I do.

National reconciliation will take time, but for the sake of our common humanity, and for the sake of this country’s future, it is necessary to stop incitement and to stop violence.  And I welcome the government’s commitment to address the issues of injustice and accountability, and humanitarian access and citizenship.  That’s a vision that the world will support as you move forward.

(See prior related posting.)

Church With Police Hosts Operation Safe Surrender

AP reports that last week, Greater Friendship Baptist Church in Daytona Beach, Florida for the third time hosted Operation Safe Surrender in cooperation with law enforcement authorities.  The program allows those wanted by the police to surrender at the church, get an initial hearing there by closed-circuit TV with public defenders available, and for non-violent defenders get possible reduced or dismissed charges.  Clergy were also available for spiritual counseling.

Stanford Offers Religious Liberty Clinic

First Things reports that next semester Stanford Law School will become the first law school to offer students participation in a clinic that focuses on religious liberty. The Religious Liberty Clinic director is James Sonne, formerly of Ave Maria Law School.

Recent Articles of Interest

From SSRN:

• Solomon A.M. Ekwenze, The Use of the Holy Bible, the Holy Qu’Ran, Juju and Others for Oath of Office: To Fight Corruption in Nigeria, (November 11, 2012).
• Margit Cohn, Taking a Bus from Immanuel to Mea Shearim: The Role of Israel's High Court of Justice in Regulating Ethnic and Gender Discrimination in the Haredi Ultra Orthodox Sector, (November 15, 2012).
• Jon Hursh, Advancing Women's Rights Through Islamic Law: The Example of Morocco, (Berkeley Journal of Gender, Law & Justice, Vol. 27, No. 2, 2012).
• Alexandra Glynn, If You're Not Touched by Others' Pain: Natural Law, the Koran, and Three Texts from Muslim Culture, (November 11, 2012).
• Douglas M. Coulson, Persecutory Agency in the Racial Prerequisite Cases: Islam, Christianity, and Martyrdom in United States v. Cartozian, (University of Miami Race and Social Justice Law Review 2 (2012)).

From SmartCILP:

• Stacy A. Scaldo, Life, Death & the God Complex: The Effectiveness of Incorporating Religion-Based Arguments Into the Pro-Choice Perspective on Abortion, 39 Northern Kentucky Law Review 421-465 (2012).
• Symposium: One Nation Under Law. Articles by Eric Michael Mazur, Cheryl A. Sharp, Umar F. Moghul and Betsy Walters. 11 Connecticut Public Interest Law Journal 183-295 (2012).

Judge Requires Teen To Attend Church For 10 Years As Probation Condition

ABC News reports that a state trial court judge in Oklahoma has sentenced a teenager to a probation arrangement that includes a requirement that he attend the church of his choice every week for ten years. After 17-year old Tyler Alred plead guilty to manslaughter in the death of his friend who was riding with him in an auto crash, Judge Mike Norman imposed a deferred prison sentence. Alred had been drinking. Alred will avoid jail and have his conviction expunged after 10 years if he complies with all the probation conditions: graduating high school, wearing a drug and alcohol bracelet, attending counseling sessions, and going to church. Judge Norman has imposed a sentence of church attendance in other cases also. Alred's lawyer did not object to the sentence.