Report Says Islamic Finance Taxed Unfairly In MENA Region

The Qatar Financial Centre Authority last week released Phase One of a report on disparate tax treatment of Islamic financial products in the Middle East and North Africa.  The 83-page report on Cross Border Taxation of Islamic Finance in the MENA Region finds:

Islamic finance is of growing importance within the MENA region, but the taxation systems of almost all countries were developed in an environment of conventional finance. This can mean that Islamic finance suffers a tax burden that is not suffered by conventional finance.

The reason is that most transactions that are undertaken in Islamic finance seek to achieve economic outcomes which are similar to the economic outcomes achieved by conventional finance. However to achieve these economic outcomes the Islamic finance transactions typically require more component steps than do the equivalent conventional financial transactions....

The additional transactions required by Islamic finance are at risk of being subject to transfer taxes or to taxes on income or gains.... The researchers considered two alternative approaches to the modification of tax law to facilitate Islamic finance....

Lawsuit Challenges California School District's Yoga Offerings As Government Support of Religion

The National Center for Law and Policy announced yesterday that it has filed a lawsuit in state court in California challenging the Encinitas Union School District's decision to offer a yoga program as part of its curriculum.  According to the press release:

The lawsuit is the result of EUSD’s decision to accept $533,000 from the Jois Foundation in exchange for providing the religiously-based organization access to its young and impressible students to test and prove the feasibility of Jois’ "health and wellness" Ashtanga yoga curriculum.... EUSD’s Ashtanga yoga program is inherently and pervasively religious, having its roots firmly planted in Hindu, Buddhist, Taoist, and Western Metaphysical religious beliefs and practices.  As such, the program violates California constitutional provisions prohibiting government religious preference and religious discrimination (article I, § 4), prohibiting use of state resources to support religion (article XVI, § 5), and forbidding employing government resources to promote religion in public schools (article IX, § 8).

The allegations in the complaint were supported by a declaration (full text) from Candy Gunther Brown, an associate professor of religious studies at Indiana University. AP reports on the lawsuit.

Spain Agrees That Children Adopted From Morocco Will Remain Muslim

The Gatestone Institute reported yesterday that the government of Spain has agreed with the government of Morocco that Moroccan children adopted by Spanish families will be required remain culturally and religiously Muslim.  The Spanish government will create a "control mechanism" that will allow Moroccan religious authorities to monitor the children until they reach the age of 18 to see that they have not converted to Christianity. Spain agreed to these conditions so that Spanish families who are in the process of adopting Moroccan children can bring them to Spain.

Morocco has a high rate of child abandonment, and Spain has been an important source of adoptive parents for Moroccan chiidren.  As explained in a Morocco News Board report last year, in Islamic law raising a child that is not one's genetic offspring is encouraged, but the young person does not become the true child of the adoptive parents. Instead, in an arrangement known as kafala the child is monitored to assure that he or she is raised as a Muslim.  Because monitoring of children abroad is difficult, last year Morocco's Ministry of Justice and Freedoms issued Circular No. 40 S/2 providing that kafala would be allowed only for parents who reside permanently in Morocco. Spain's new arrangement allows Spanish parents to avoid the restrictions in Circular 40 S/2. [Thanks to Louis Offen for the lead.]

Parent's Claim In School "Candy Cane" Dispute Dismissed On Qualified Immunity Grounds

Last month, a Texas federal district court issued yet another decision in the 7-year long litigation challenging the Plano school district over school rules that, among other things, precluded a student from handing out candy canes with an attached religious message.  The most recent decision involved a complaint by one of the parents who was denied permission to hand out a card describing the religious legend of the candy cane to other parents at his son's school Winter Break party.  In Morgan v. Plano Independent School District, (ED TX, Jan. 15, 2013), the court adopted a magistrate's recommendation (Sept. 25, 2012) and, based on an earlier 5th Circuit decision, dismissed the complaint on qualified immunity grounds. Courthouse News Service yesterday reported on the decision.

In Sri Lanka, Radical Buddhist Party Stirs Up Anti-Muslim Sentiment

In Sri Lanka, a Buddhist country with a 10% Muslim minority, the radical Buddhist party, Bodu Bala Sena (Buddhist Strength Force), is stirring up anti-Muslim sentiment. It is calling on the government to ban halal food certification, ban the building of mosques with funds from Middle Eastern countries, and prohibit sending Sri Lankan women to work in the Middle East. Yesterday's Khaleej Times reports that thousands attended an anti-Muslim rally last Sunday. Bodu Bala Sena Secretary Galaboda Aththe Gnanasara Thero, claiming that Muslim extremists are threatening the Buddhist race, said: "Hundreds of monks are ready to fight....Our country is a Sinhalese one and we are its unofficial police." He also called for an amendment to the constitution to allow Buddhist men to have seven wives.

Virginia Legislature Protects Mission of College Religious Groups

Last week the Virginia state legislature gave final approval to HB 1617 which provides:

To the extent allowed by state and federal law:

1. A religious or political student organization may determine that ordering the organization's internal affairs, selecting the organization's leaders and members, defining the organization's doctrines, and resolving the organization's disputes are in furtherance of the organization's religious or political mission and that only persons committed to that mission should conduct such activities; and

2. No public institution of higher education that has granted recognition of and access to any student organization or group shall discriminate against any such student organization or group that exercises its rights pursuant to subdivision 1.

The bill has been sent to Gov. Bob McDonnell for his signature.  In an editorial yesterday, the Virginia Pilot called for the governor to veto the bill, saying: "The real reason for the bill is to allow certain religious or political groups to reject gay or lesbian students with the commonwealth's blessing."

Kazakhstan Elects New Grand Mufti

Tengri News yesterday reported that a new Grand Mufti of Kazakhstan has been elected unanimously by the participants of the 7th Kurultai of Kazakhstan Muslims.  The new Grand Mufti is 40-year old Yerzhan Mayamerov.  Since 2011 he has served as imam of the Semei region. Two new first deputies to the Grand Mufti were also appointed.

Canadian Prime Minister Announces Opening of Office of Religious Freedom

Northumberland View reports that Canadian Prime Minister Stephen Harper yesterday announced the creation of the Office of Religious Freedom within the Department of Foreign Affairs and International Trade. According to the ORF website: "the Office has been created to promote freedom of religion or belief as a Canadian foreign policy priority." Harper also announced the appointment of Dr. Andrew Bennett as Ambassador to the Office. (See prior related posting.)

4 Christians Arrested In Libya For Proselytizing

Both The Guardian and RT report that In Libya last week, four foreign nationals were arrested in Benghazi and charged with distributing Christian literature. Under a Gaddafi-era law, proselytizing potentially carries a death sentence.  The four--a Swedish-American, Egyptian, South African and South Korean-- were taken into custody at a publishing house where police found 45,000 pamphlets and said another 25,000 had already been distributed. The four  have been handed over to Libya's Preventive Security. Libya this week is celebrating the second anniversary of the overthrow of Muammar Gaddafi.

Egypt Picks New Grand Mufti, Elected By Al-Azhar For First Time

According to Ahram Online, in Egypt, yesterday President Mohamed Morsi officially approved Shawki Ibrahim Abdel-Karim as the country's new Grand Mufti. Morsi's approval comes after the Senior Scholars Authority of Al-Azhar voted to elect Abdel-Karim. This is the first time Al-Azhar has been given this kind of input into the selection of a Grand Mufti, presumably reflecting the enhanced powers given to the Sunni religious institution in Egypt's new Constitution. (See prior posting.) In the past, the Grand Mufti was merely appointed by the President. The new Grand Mufti, whose term begins March 4, is an expert on Islamic Jurisprudence. Among his writings is a book on the political rights of Muslim women.

Britain's Equality Commission Issues New Guidance On Workplace Religious Accommodation

Britain's Equality and Human Right Commission this month issued two publications designed to give guidance on accommodating religion and belief in the workplace, in light of last month's judgments on the issue handed down by the European Court of Human Rights. (See prior posting.)  One pamphlet, Religion or Belief in the Workplace: A Guide for Employers Following Recent European Court of Human Rights Judgments, answers common questions and sets out examples for employers.  A second pamphlet, titled Religion or Belief in the Workplace: An Explanation of Recent European Court of Human Rights Judgments, summarizes last month's decisions and their impact, saying:

The new judgment means that the courts cannot simply dismiss a case because of the possibility of changing jobs to other employment that allows the religious observance. Instead, this possibility should be a relevant factor, to be weighed amongst others, when considering whether or not the restriction is proportionate.

New Ten Commandments Party Formed In Russia

Interfax reports that a new Ten Commandments party has been formed in Russia. 134 delegates-- including Christians, Muslims and Jews-- attended the party's inaugural Congress on Feb. 17.  Archpriest Vsevolod Chaplin, speaking at the Congress, said in part:

I hope that your activity will help to restore moral values, God's Ten Commandments in the everyday political life, in the life of our society. I hope that you will stay faithful to these God's Commandments, that you'll be able to unite a considerable number of people.

Court Denies TRO To Stop Church's Amplified Music

According to the Durham News & Observer, a Durham, North Carolina state trial court yesterday, finding no likelihood of success on the merits, denied a temporary restraining order against amplified music played at a popular local church.  Neighbors of Newhope Church, one of the country's fastest growing congregations, claimed the music amounts to nuisance and trespass, that it harms their property values, as well as their ability to relax and find peace in their own homes. The church argued that the music complies with the city's noise ordinance, and that any attempt to regulate it would violate its 1st Amendment rights.

White House Announces 2013 Easter Egg Roll

Last Friday, the White House announced the 2013 White House Easter Egg Roll. It will take place on Monday, April 1, on the South Lawn of the White House.  Tickets will be distributed through a on-line lottery system that is open for entries from Feb. 21 to 25.

Recent Articles of Interest

From SSRN:

• Neil James Foster, Freedom of Religion and Law Schools: Trinity Western University, (January 23, 2013).
• James M. Oleske, Lukumi at Twenty: A Legacy of Uncertainty for Religious Liberty and Animal Welfare Laws, (Animal Law Review, Vol. 19, No. 2, 2013).
• Patrick Parkinson, Suffer the Teenage Children: Child Sexual Abuse in Church Communities, (Paper for the Center for the Study of Law and Religion, Emory University, January 2013).
• Andrew F. March, Rethinking Religious Reasons in Public Justification, (American Political Science Review, Forthcoming).
• Carissima Mathen, Reflecting Culture: Polygamy and the Charter, (Supreme Court Law Review, 57, 2012).

From SmartCILP and elsewhere:

• Daniel P. Dalton, The Religious Land Use and Institutionalized Persons Act: Recent Developments in RLUIPA's Land Use Jurisprudence, 44 Urban Lawyer 647-665 (2012).
• R. George Wright, Can We Make Sense of "Neutrality" in the Religion Clause Cases?: Seven Rescue Attempts and A Viable Alternative, 65 SMU Law Review 877-909 (2012).
• Symposium: Sharia in America: Principles and Prospects. 57 New York Law School Law Review 231-311 (2012/13).
• Christopher J. Rosko and Leonard J. Nelson, III, The Emergency Research Waiver of Consent Rule: Is It Compatible With Catholic Teaching?, 6 University of St. Thomas Journal of Law & Public Policy 156-205 (2011).
• John Witte, The Study of Law and Religion in the United States: An Interim Report, [Abstract], 14 Ecclesiastical Law Journal 327–354 (2012).

Iranian Authorities Confiscating Buddha Statues

The London Guardian reported yesterday that Iranian authorities are confiscating Buddha statues from shops in Tehran. An official called the statues a symbol of cultural invasion. Apparently some Iranians have been buying the statues for decoration and not for religious reasons.

Recent Prisoner Free Exercise Cases

In Riley v. Decarlo, (3d Cir., Feb. 13, 2013), the 3rd Circuit rejected a Muslim inmate's claims that his free exercise and equal protection rights were infringed by the failure to provide a Halal meat diet to all Muslim inmates and by the Pennsyvania Department of Corrections policy of administering a PPD test for tuberculosis.

As reported by AP, the 8th Circuit in Sims v. Randall, (8th Cir., Feb. 14, 2013) summarily dismissed an appeal of a Nebraska federal district court decision rejecting claims that Nebraska prison officials failed to fully carry out a 2005 agreement to accommodate the religious and cultural needs of Native American inmates.

In March v. Townsend, 2013 U.S. Dist. LEXIS 17615 (ED TN, Feb. 8, 2013), a Tennessee federal district court permitted an Orthodox Jewish inmate to proceed under RLUIPA and the 1st Amendment with his complaint that he was terminated from a kosher diet for his breakfast meal, was served only vegetarian dishes, and that  non-kosher trays and utensils were used in the kosher meal service.

In Creveling v. Johnson, 2013 U.S. Dist. LEXIS 18373 (D NJ, Feb. 11,2013), a New Jersey federal district court dismissed a claim by an inmate in a Special Treatment Unit for sexual offenders that his free exercise rights were violated because the facility did not offer weekly Catholic Mass.

In Jenner v. Sokol, 2013 U.S. Dist. LEXIS 18075 (D CO, Feb. 11, 2013), a Colorado federal district court permitted a Jewish inmate to proceed with his complaint about cancellation and timing of Shabbat services, but dismissed his claims regarding the availability of religious supplies.

In Powers v. Naiman, 2013 U.S. Dist. LEXIS 18026 (MD FL, Feb. 11, 2013), a Florida federal district court rejected the portion of a magistrate's report (2012 U.S. Dist. LEXIS 185875, Nov. 2, 2012) recommending dismissal of a Messianic Jewish inmate's complaint under RLUIPA that he was not allowed to keep his religious garments in his cell.  Instead the court permitted defendants to file a corrected motion to dismiss based on failure to exhaust administrative remedies.

In Guthrie v. Unknown Handline, 2013 U.S. Dist. LEXIS 18462 (WD MI, Feb. 12, 2013), a Michigan federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185988, Oct. 19, 2013) and dismissed on statute of limitations grounds and inmate's complaint that a corrections officer permitted an inmate to attack him because of his religion.

In Blake v. Cooper, 2013 U.S. Dist. LEXIS 18530 (WD MO, Feb. 12, 2013), a Missouri federal district court dismissed Muslim inmates' claim that they were not allowed to break their Ramadan fast with dates, finding that any violation was de minimis and did not place a substantial burden on their free exercise of religion.

In Foster v. Western District of Louisiana, 2013 U.S. Dist. LEXIS 18906 (WD LA, Feb. 12, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 18914, Jan. 16, 2013) and dismissed a complaint by a Muslim inmate that his right to participate in Friday Jumah services was curtailed and he was not provided religious education.

Suit By Church Seeks TRO Against Dissident Faction

The Toledo Blade reports on a lawsuit filed February 1 by a Toledo, Ohio congregation-- the Southern Baptist Missionary Church--  against 13 church members who attempted in a contested January 28 meeting to remove Lemuel A. Quinn as pastor.  Background on the dispute is furnished in a Commentary by the Blade's religion editor. The suit claims that the defendants have filed false police reports and have physically threatened church members. It claims that one member physically assaulted Quinn during a church service, and that defendants have circulated false rumors that Quinn died in order to reduce attendance. Defendants say that Quinn has been deceitful about his 1973 conviction for manslaughter, and has been threatening to some members. So far, attempts by the judge to mediate the dispute have not been successful. A hearing has been scheduled For. Feb. 25 by Common Pleas Court judge James Bates who says he hopes he will not be required to decide who the church's pastor is.

Depositions From Legion of Christ Lawsuit Released

As previously reported, a Rhode Island Superior Court last month ordered release to the media of documents that had been produced by the scandal-ridden Legion of Christ in a lawsuit against it. According to the Daily Mail, the documents -- the first-ever depositions of high-ranking Legion officials-- were actually released yesterday and reveal:

details on how the founder of the organization, the Reverend Marcial Maciel who died in 2008, lived a double life, fathering three children, and was accused of abusing seminarians. The Legion kept this information hidden.  Also revealed are allegations that the organization solicited money from an elderly widow, eventually persuading her to bequeath it $60 million.

Army Will Bill West Point Student Who Left Criticizing Proselytizing

As previously reported, last December a West Point cadet, Blake Page, who had been disqualified on medical grounds from receiving a Second Lieutenant commission, resigned from West Point 5 months short of graduation in protest of the school's promotion of religion. At the time, it was reported that Page would receive an honorary discharge and would not have to reimburse the government for the cost of his education. Yesterday, however, NBC News reported that Assistant Secretary of the Army Thomas Lamont, while approving an honorable discharge, has rejected the recommendation of West Point superintendent Lt. Gen, David Huntoon that repayment of tuition be waived. Instead Page will be billed for over $200,000, Pages's supporters charge that the decision was in retaliation for the scathing commentary about Christian proselytizing at West Point that Page published  as he was leaving.

House Holds Hearings On Tax Reform and Charitable Contributions

Yesterday, the House Ways and Means Committee held hearings on Tax Reform and Charitable Contributions.  The testimony of all six panels of witnesses is available from the Committee's website, as is the Opening Statement of Committee Chairman Dave Camp. In anticipation of the hearing, the staff of the Joint Committee on Taxation released a 55-page report titled Present Law and Background Relating to the Federal Tax Treatment of Charitable Contributions. [Thanks to Steven H. Sholk for the lead.]

Religious Conservatives Around The World Object To Valentine's Day

Today is Valentine's Day-- a celebration that has become increasingly popular around the world.  As in past years, conservative religious authorities in some countries continue to express their opposition to the occasion. In Coimbatore, India, members of the All India Youth Federation have petitioned police for protection, according to yesterday's Deccan Chronicle. The group says that every year, religious parties and other protesters gather in city parks and elsewhere where young people meet, and try to catch them and force them to marry in public places.

In Indonesia, according to today's Tengri News, the country's largest Muslim organisation, Nahdlatul Ulama, says it does not want to ban Valentine's Day, but it should not be celebrated by teenagers. The Head of the conservative Islamic Defenders Front went further and declared the day "haram" (forbidden) for Muslims, saying it reflects the culture of "infidels."

According to OnIslam, in Pakistan, the head of Jammat-e-Islami, the country’s largest Islamic party, said: "We are going to observe February 14 as Hijab Day in all over the country, especially in the educational institutions in order to show to the world that the people of Pakistan totally reject this custom, which is a direct attack on the culture of modesty."

Meanwhile, according to Chicago's Daily Herald, in Illinois, supporters of same-sex marriage hope that the state Senate will use today to pass and send to the House a bill permitting same-sex marriage.

Orange County Settles, Allowing Muslim Women In Custody To Wear Hijab

The San Clemente Patch reported yesterday that Orange Count, California has settled a 6-year long lawsuit brought against it by the ACLU on behalf of Souhair Khatib, a Muslim woman who was required to remove her hijab (head scarf) while in a courthouse holding cell. (See prior posting.) Under the settlement, Orange County officials will no longer require women in custody to remove their hijab. Also the county will provide training to law enforcement officers on the new policy, and will pay $85,000 in damages, fees and court costs.

Challenge To 10 Commandments Monument Dismissed After Plaintiff Says It Now Lacks Standing

In 2006, Dixie County, Florida commissioners approved a request by citizens to permit them to place a 5-foot tall, 6-ton granite Ten Commandments monument at the county courthouse. The ACLU filed a lawsuit challenging the monument on behalf of an ACLU member, identified only as John Doe, who did not live in Dixie County, but said he was looking to purchase property there on which he and his wife could park their recreational vehicle. They encountered the offending display when they went to the county courthouse to research any encumbrances on property they were considering. Apparently the ACLU was unable to find an actual Dixie County resident who was willing to act as plaintiff.

As the case wound its way through the courts, standing of plaintiff to bring the lawsuit remained an issue, and last year the 11th Circuit remanded the case to the district court for a hearing on standing. Last month, the ACLU filed a motion (full text) to dismiss the suit without prejudice, asserting that changed circumstances have led plaintiff to conclude that it lacks standing.  The motion asserted:

John Doe recently learned that a revised permitting process will limit the number and location of properties on which RVs may be placed. And more troubling for Doe and his wife, the revised permitting process would require John Doe to publicly advertise his request for a permit. The Does are fearful that, because it is common knowledge that they were seeking property for the purpose of living in their RV, the new permitting requirements will lead to their identities being discovered and make them targets for physical violence and threats or harm to their property.... With these new requirements and accompanying fears for their safety, John Doe and his wife regrettably concluded this past week that, even if the monument is removed, they “are very unlikely to return to Dixie County to search for property.”

Yesterday, in American Civil Liberties Union of Florida, Inc. v. Dixie County, Florida, (ND FL, Feb. 13, 2013), the federal district court dismissed the case without prejudice, indicating that all matters, including costs and attorneys' fees, have been resolved by the parties. A press release by Liberty Counsel indicates that under the parties' agreement, the ACLU will pay defendants $1300 for court costs. It says that plaintiff has admitted he does not intend to buy property in the county because the court had ordered him to be deposed to reconcile inconsistencies in his prior affidavit and deposition.

11th Circuit Tells Parties To Try Again To Mediate RLUIPA Zoning Dispute Over Mosque Expansion

The Atlanta Journal Constitution reports that yesterday, after hearing oral arguments in Islamic Center of North Fulton, Inc. v. City of Alpharetta, Georgia, the U.S. 11th Circuit Court of Appeals ordered the parties to try again to resolve their zoning dispute by mediation.  In the case, a federal district court dismissed RLUIPA and federal constitutional challenges to Alpharetta's refusal to approve the Islamic Center's expansion. The proposed project would replace the Center's present worship structure with 2 buildings-- a mosque and a smaller community hall. (See prior posting.) The 11th Circuit said that if no settlement is reached in 120 days, it will issue a ruling in the case.

House Passes Bill To Allow FEMA Aid To Houses of Worship Damaged In Hurricane Sandy

As reported by the Huffington Post, by a vote of 354-72 yesterday the U.S. House of Representatives passed HR 592, the Federal Disaster Assistance Nonprofit Fairness Act.  The bill, which now goes to the Senate for consideration, adds houses of worship to the list of types of private non-profit facilities eligible for federal disaster aid from the Federal Emergency Management Agency. The change is aimed at assisting houses of worship in the Northeast that were damaged by Hurricane Sandy. Americans United and the ACLU opposed the bill on church-state separation grounds.

School Board Modifies Policy On Youth Ministers' Lunchtime Visits

The Conway, Arkansas Log Cabin Democrat reports that yesterday the Conway school board approved a policy that will allow youth ministers back on school campuses, after their lunch hour visits with students were temporarily suspended in reaction to a complaint by the Freedom From Religion Foundation. Some parents were particularly concerned with ministers approaching children without parental consent. The schools asked Liberty Institute to analyze the constitutionality of the school policy on outside visitors.  The organization's report (full text, scroll to pg. 62 of Board agenda items), was released late Thursday, too late for parents to get on Tuesday's agenda to comment on it.  It concluded that the existing visitor policy was neutral, but the Board on Tuesday adopted changes to reinforce that conclusion.  The new policy requires visitors to senior and junior high schools to maintain a list of students with whom they are affiliated. The principal can then bar a visitor from talking with students not on the visitor's list. At elementary and middle schools, parental consent is required before a visitor may have access to a student.

Scholar Argues Britain No Longer Needs Chief Rabbi

The Forward this week published an interesting opinion piece by a visiting scholar at Oxford arguing that in Britain, the position of Chief Rabbi has outlived its usefulness.  In December, a selection committee from Britain's Orthodox Jewish United Synagogue chose Rabbi Ephraim  Mervis to succeed Lord Jonathan Sacks as Chief Rabbi later this year.  According to op-ed author Keith Kahn-Harris:

[B]ehind the imposing title of chief rabbi lies an often beleaguered office, struggling to reconcile the United Synagogue’s different wings. Outside the United Synagogue, other denominations, from Reform to Haredi, are clear that the chief rabbi does not represent them. At the national level, other Jewish leaders are invited to most state events alongside him....

From the 18th to the early 20th century, the chief rabbi, whose office was modeled closely on the established Church of England, provided an arguably useful service in demonstrating to non-Jewish British society that Jews were respectable enough to be emancipated. But in today’s multicultural Britain, where even the established church doesn’t command the loyalty of more than a small minority of Britons, the chief rabbinate is clearly anachronistic.

Obama Issues Statement On Pope's Resignation

On Monday, President Obama issued the following statement on the resignation of Pope Benedict XVI:

On behalf of Americans everywhere, Michelle and I wish to extend our appreciation and prayers to His Holiness Pope Benedict XVI. Michelle and I warmly remember our meeting with the Holy Father in 2009, and I have appreciated our work together over these last four years.   The Church plays a critical role in the United States and the world, and I wish the best to those who will soon gather to choose His Holiness Pope Benedict XVI’s successor.

High School Students Object To Prom Being Open To LGBT Classmates

Time reported yesterday that in Sullivan, Indiana, a group of high school students are unhappy with the decision by the principal of Sullivan High School that anyone, including same-sex couples, can attend the high school prom.  A group of students met Sunday at a church to discuss holding a separate event that would exclude LGBT students. One supporter of the alternative prom commented: "We believe what the Bible says, that it says it’s wrong. We love the homosexuals, but we do not condone what they’re doing."

Artist Appeals Russian Court's Fine For Causing Religious Offense By Selling Pussy Riot Shirts

In Russia, fallout from last year's conviction of members of the punk rock band Pussy Riot for their protest performance in Moscow's Christ the Savior Cathedral continues. RAPSI today reports that in the Siberian city of Novosibirsk, artist Artyom Loskutov has filed an appeal of a 1000 ruble ($33 US) fine imposed on him by a magistrate's court for causing religious offense by selling Pussy Riot T-shirts.  In his appeal of last month's administrative case against him, Loskutov argues that his actions cannot be seen as causing religious offense.

European Court Rejects Mosque's Complaint Against Azerbaijan

The European Court of Human Rights last week, in a Chamber Judgment, dismissed claims against the government of Azerbaijan brought by a Muslim congregation in Baku.  In Juma Mosque Congregation v. Azerbaijan, (ECHR, Feb. 8, 2013), the congregation sued complaining that the government refused to re-register the congregation unless it subordinated itself to the Caucasus Muslim Board. The congregation was evicted from the state-owned Juma Mosque which they had occupied for 12 years.  The court held that the congregation had failed to exhaust the domestic remedies available to challenge the re-registration refusal. On the congregation's complaint that it was evicted from the mosque, the court held that there is no protected right for a religious group to obtain a place of worship from state authorities.

Becket Fund issued a press release on the decision saying:

The mosque was targeted by the authorities because it would not agree to replace its existing religious leader, Ilgar Ibrahimoglu Allahverdiyev–a prominent democracy and religious liberty activist–with a government-appointed imam

Good News Clubs Sue Claiming Unequal Treatment By School District

In Harrisburg, Pennsylvania last week, the organization that operates after-school Good News Clubs filed suit in federal court challenging on constitutional grounds the school district's refusal to include it as a non-profit community service group that may use school facilities without charge.  Instead the district told the group that it would be charged $1200 per year per school for after-school use of space for its activities. The complaint (full text) in Child Evangelism Fellowship of Dauphin County, Inc. v. Harrisburg School District, (MD PA, filed 2/8/2013), alleges:

In depriving Plaintiff access on equal terms, the District applied its Policy in an unconstitutional manner, thereby violating the free speech, free exercise, due process, and equal protection clauses of the First and Fourteenth Amendments tothe United States Constitution.

The Harrisburg Patriot-News reports on the lawsuit.

Israeli Police Detain 10 Jewish Women In Conflict Over Egalitarian Prayer Customs At Western Wall

In Israel, the ongoing struggle over Jewish women's rights to egalitarian prayer at the Western Wall in Jerusalem continues.  The New York Times and the Jerusalem Post report that earlier today ten women were detained by police after the women prayed there wearing the type of prayer shawls (tallitot) traditionally worn by men.  The Orthodox Jewish authorities who control activities at the Western Wall allow women to wear colorful "female style" prayer shawls that resemble a scarf, but do not allow "male tallitot" which are blue and white or black and white and are worn folded across the shoulders. The Israeli Supreme Court ruled in 2003 that worshipers at the Western Wall must "uphold the customs" of the site. The group known as Women of the Wall have gathered once a month for the last 24 years on Rosh Chodesh (the beginning of each Jewish month) to challenge the Orthodox limitations on women's rights there.  Police confiscated male prayer shawls carried by women through security check points, but men sympathetic to their cause smuggled in prayer shawls for them to wear.

With the women praying at the Wall today were veterans from the 1967 Six Day War who fought at the Western Wall.  Those detained by police-- after prayers were completed and they were exiting the site-- included two U.S. rabbis, an American-born Israeli Reform Rabbi who is the sister of comedienne Sarah Silverman, and a pregnant rabbinical student. Apparently some of the women did not agree to the conditional release that typically includes a bar on them from entering the Western Wall Plaza for 15 days.

Pope Benedict XVI Will Resign On Feb. 28

Pope Benedict XVI announced (full text and audio) today that he will resign the Papacy on Feb. 28:

[I]n today’s world, subject to so many rapid changes and shaken by questions of deep relevance for the life of faith, in order to govern the bark of Saint Peter and proclaim the Gospel, both strength of mind and body are necessary, strength which in the last few months, has deteriorated in me to the extent that I have had to recognize my incapacity to adequately fulfill the ministry entrusted to me. For this reason, and well aware of the seriousness of this act, with full freedom I declare that I renounce the ministry of Bishop of Rome, Successor of Saint Peter, entrusted to me by the Cardinals on 19 April 2005, in such a way, that as from 28 February 2013, at 20:00 hours, the See of Rome, the See of Saint Peter, will be vacant and a Conclave to elect the new Supreme Pontiff will have to be convoked by those whose competence it is.

Reporting on developments, the New York Times commented: "While there had been questioning about his health and advancing years, his announcement — even by the Vatican’s official account — stunned many."

Parishioner's Arrest For Trespass Does Not Violate 1st or 4th Amendments

In Lye v. City of Lacey, (WD WA, Feb. 8, 2013), a Washington federal district court rejected claims that police officers violated Hui Son Lye's 1st and 4th Amendment rights when they arrested her for trespass at the request of Sacred Heart Catholic Church. The Church issued Lye a "no trespass" order after she disrupted services several times with her demands that the Church conduct Mass in Korean.

Recent Articles of Interest

From SSRN:

• Yossi Nehushtan, What are Conscientious Exemptions Really About?, (Oxford Journal of Law and Religion, Forthcoming).
• Ivan E. Bodensteiner, Are Catholic Bishops Seeking a Religious Preference or Religious Freedom?, (Valparaiso University Legal Studies Research Paper No. 13-1, Feb. 2013).
• Lena Salaymeh, Commodifying 'Islamic Law' in the U.S. Legal Academy, (Journal of Legal Education, 2014, Forthcoming).
• Mark Strasser, The Endorsement Test Is Alive and Well: A Cause for Celebration and Sorrow, (39 Pepperdine Law Review 1273-1315 (2013)).
• George Harinck and Hans-Martien Ten Napel, Democracy: Instrument for or Expression of a Christian Political Order?, (Journal of Inter-Religious Dialogue, Issue 11, p. 42, 2013).
• Mark Strasser, Leaving the Dale to Be More FAIR: On CLS v. Martinez and First Amendment Jurisprudence, (11 First Amendment Law Review 235-89 (2012)).
• Matthew B. O'Brien, Brief of Amicus Curiae Matthew B. O’Brien in Support of Hollingsworth and Bipartisan Legal Advisory Group of the U.S. House of Representatives Addressing the Merits and Supporting Reversal, (January 29, 2013).

Court Dismisses Contraceptive Coverage Mandate Challenge By Illinois Catholic Organizations On Standing and Ripeness Grounds

In Conlon v. Sebelius, (ND IL, Feb. 8, 2013), an Illinois federal district court dismissed on standing and ripeness grounds a challenge to the Affordable Care Act contraceptive coverage mandate brought by Catholic dioceses and related Catholic Charities organizations in Joliet and Springfield, Illinois, as well as by a Catholic high school. The court concluded that the government's March 2012 Advance Notice of Proposed Rulemaking made it clear that the government intends to address concerns expressed by employers with religious objections to contraception. The Chicago Tribune reports on the decision.

Recent Prisoner Free Exercise Cases

In Jones v. Beaver County Jail, 2013 U.S. Dist. LEXIS 13702 (WD PA, Feb. 1, 2013), a Pennsylvania federal magistrate judge dismissed an inmate's claim that his free exercise rights were violated by the refusal to provide him with vegetarian meals.

In Sloane v. Nevada, 2013 U.S. Dist. LEXIS 13332 (D NV, Jan. 30, 2013), a Nevada federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185431, Oct. 12, 2012) and allowed a Jewish inmate to proceed with his complaint that Seder supplies sent to him were delivered too late for him to use them for the First Seder. However the court dismissed his complaint that he did not receive kosher for Passover food on two days.

In Moore v. Gloucester County Jail, 2013 U.S. Dist. LEXIS 15326 (D NJ, Feb. 5, 2013), a New Jersey federal district court dismissed a Muslim inmate's complaint that while being held in the county jail, on two occasions his prayers were interrupted.  The court also dismissed his complaint that the jail does not provide Muslim inmates with a place to conduct prayers or attend Jumuah service, and only provides for church services. Plaintiff sought $50 million in damages.

In Roberts v. Schofield, 2013 U.S. Dist. LEXIS 16042 (MD TN, Feb. 6, 2013), a Tennessee federal magistrate judge recommended dismissing, in part on mootness grounds, the complaint by two prisoners that their correctional facility did not serve proper Kosher meals nor allow them to engage in certain other Jewish religious observances. UPDATE: The court adopted the magistrate's recommendations at 2013 U.S. Dist. LEXIS 25271, Feb. 25, 2013. UPDATE2: The court subsequently granted plaintiff's motion to reconsider and refused to dismiss certain official capacity claims against defendants, and denied a motion to dismiss for improper venue. (2013 U.S. Dist. LEXIS 62013, April 30, 2013).

In Haas v. Spencer, 2012 Mass. Super. LEXIS 374 (MA Super., Dec. 6, 2012), a Massachusetts state trial court rejected two inmates' constitutional and statutory challenges to their temporary suspension of access to the building in which religious services were held. The step was taken because the one of the inmates had gotten the Catholic chaplain improperly to mail letters for them while the other got the chaplain to look up information in the Inmate Management System.

In Davilla v. National Inmate Appeals Coordinator, 2013 U.S. Dist. LEXIS 15991 (SD GA, Feb. 6, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16940, Jan. 22, 2013) and dismissed an inmate's claim that his rights under the 1st Amendment and RFRA were infringed when the requirement that he purchase all personal religious property from the commissary inventory or through an approved catalogue source precluded him from obtaining Santeria beads and cowrie divination shells that contain "ache".

In Rainey v. Huertas, 2013 U.S. Dist. LEXIS 16798 (D CO, Feb. 7, 2013), a Colorado federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 16799, Jan. 17, 2013) and dismissed an inmate's claim that his religious rights were infringed when the religious diet he was served was not a "mechanical soft diet" as ordered by the facility's medical department.

Former Prison Chaplain's Employment Discrimination Claims Rejected

In Askew v. New York State, (ND NY, Feb. 6, 2013), a New York federal district court dismissed employment discrimination and retaliation claims brought by an African-American Protestant minister who worked as the Department of Corrections Protestant Ministerial Program Coordinator. Plaintiff claimed that her supervisors discriminated in favor of the Catholic Coordinator in the manner they approved of meetings and training opportunities, assigned duties, and offered speaking appearances. The court also dismissed her claim that her free speech and free exercise rights were infringed when she was not approved to speak or participate in Protestant faith and community activities in her official capacity.

Bergholz Amish Defendants Receive Sentences Up to 15 Years for Hate Crime Assaults

The U.S. Attorney's Office for the Northern District of Ohio announced that on Friday 16 defendants were sentenced on hate crime charges growing out of a series of assaults on members of a rival Amish group in which the victims'  hair or beards were cut. (See prior posting.) As reported by the Cleveland Plain Dealer, Bergholz Amish bishop Samuel Mullet received a 15 year sentence. Other defendants received sentences ranging from 7 years to just over one year. In imposing the sentences, federal district judge Dan Aaron Polster told the defendants:

Each and every one of you did more than terrorize, traumatize and disfigure the victims.You trampled on the Constitution.

9th Circuit In 2-1 Decision Rejects Church's Challenge To Town's Sign Restrictions

In Reed v. Town of Gilbert, (9th Cir., Feb. 8, 2013), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, upheld an Arizona town's sign ordinance that limits the size, number and time frame in which temporary directional signs can be displayed.  The ordinance was challenged by a church that placed 17 signs in the area around its place of worship announcing the time and location of its services. The majority concluded that the ordinance does not violate free expression guarantees since it is not a content-based regulation, and the restrictions are tailored to serve a significant governmental interest.  The majority also rejected free exercise, equal protection and overbreadth-vagueness challenges.

Judge Watford dissenting argued that the ordinance is content-based because it favors political and ideological signs over signs promoting events sponsored by non-profit organizations. (See prior related posting.)

Egyptian Court Orders 30-Day Ban On YouTube Over Anti-Muslim Video

According to AhramOnline, Egypt's administrative court today ordered the government to block access to the website YouTube for 30 days because YouTube carried the video trailer for the controversial move "Innocence of Muslims." (See prior related posting.) The order also applies to other websites that aided in sharing the video. AP reports that Judge Hassouna Tawfiq labeled the video “offensive to Islam” and to the Prophet Muhammad. The lawsuit was filed in September by Hamed Salem, an attorney who has filed a number of controversial lawsuits.

3rd Circuit Denies Stay Pending Appeal In Small Business Challenge to Contraceptive Coverage Mandate (Corrected)

In a 2-1 decision, the U.S. 3rd Circuit Court of Appeals refused to grant a stay pending appeal in a small business' challenge to the Affordable Care Act contraceptive coverage mandate. In Conestoga Wood Specialties Corp. v. Secretary of U.S. Dept. of Health and Human Services, (3rd Cir., Feb. 7, 2013), Judge Rendell in her majority opinion concluded that the Mennonite owners of a wood specialties manufacturing company had failed to show a reasonable likelihood of success on the merits of their free exercise, RFRA or Establishment Clause claims. (See prior related posting.)

Judge Garth, concurring, emphasized that:

for-profit corporate entities, unlike religious non-profit organizations, do not — and cannot — legally claim a right to exercise or establish a "corporate" religion under the First Amendment or the RFRA.

He also agreed with the district court that:

It would be entirely inconsistent to allow the Hahns to enjoy the benefits of incorporation, while simultaneously piercing the corporate veil for the limited purpose of challenging these regulations.

Judge Jordan dissented, arguing first that injunctive relief should be available "if the threatened harm is particularly great, despite a showing on 'likelihood of success' that is less than would usually be required." He added:

The government is at pains to point out ... that the “preventive health services provisions [of the ACA] require coverage of an array of recommended services...."  [However] "There’s just one fatal dish," is non-responsive to [plaintiffs'] point, which is that their religious liberty is directly threatened by the government’s edict....

An entity’s incorporated status does not ... alter the underlying reality that corporations can and often do reflect the particular viewpoints held by their flesh and blood owners....

Policymic reports on the decision. [Thanks to Jeff Pasek for the lead.] 

[Note: An earlier version of this posting contained 2 errors.  It referred in the body of the post to the incorrect circuit.  It also had an incorrect date for the decision. That incorrect earlier date stemmed from the fact that 3rd Circuit opinions contain, without explanation, the date on which the clerk's office forwards the motion to the 3-judge panel. I incorrectly used that  date. Thanks to Howard Bashman for the corrections.]

Catholic Bishops Say New HHS Contraceptive Mandate Proposal "Falls Short"

In a Statement (full text) issued yesterday, the U.S. Conference of Catholic Bishops said that the Department of Health and Human Services' Feb. 1 Notice of Proposed Rulemaking attempting to accommodate non-profit religious organizations' objections to the contraceptive coverage mandate "shows some movement by the Administration but falls short of addressing U.S. bishops' concerns." In the statement, Cardinal Timothy Dolan argued that Catholic health care, education and charities should have the same total exemption as churches. He indicated that it is unclear how much involvement religious organizations will be required to have in arranging for required separate policies. Finally he objected to the lack of any conscience protection to private for-profit employers and insurers.

Christian Churches Call For Comprehensive Immigration Reform

Christian Churches Together, an organization of over 40 Christian church groups (Catholic, Orthodox, evangelical and main-line Protestant) last week issued a press release and Statement (full text) calling for comprehensive immigration law reform. The diverse group of Christian religious leaders agreed on the following principles:

• An earned path to citizenship for the 11 million people in the United States without authorization.
• The priority of family reunification in any immigration reform.
• Protecting the integrity of our borders and protecting due process for immigrants and their families.
• Improving refugee protection laws and asylum laws.
• Reviewing international economic policies to address the root causes of unauthorized immigration.

California Appeals Court Refuses To Enforce $18 M Oral Pledge To Chabad

In Chabad of California, Inc. v. Arnall, (CA App., Jan. 25, 2013), a California state appellate court, affirming a trial court decision, refused to enforce a purported oral pledge of $18 million to Chabad of California by a now-deceased donor. The court said in part:

After finding that nearly every witness in this case was lacking in credibility to one degree or another, the trial court found that Chabad had failed to prove an essential element of its case, namely, the existence of a promise to donate $18 million for the new facility.  In making this finding, the trial court necessarily found that Rabbi Cunin's testimony was not credible on the fundamental question regarding the existence of an oral pledge.  Because the adverse credibility determination was based on substantial evidence that Chabad does not dispute on appeal, there are no valid grounds to overturn the trial court‟s findings.

Los Angeles Jewish Journal reports on the decision. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Mass. Governor's Income Tax Proposal Would End Parsonage Exemption; Continue No Charitable Deduction

Last week the Massachusetts Taxpayers Foundation published an analysis of Gov. Deval Patrick's FY 2014 tax proposal. Among the 44 personal exemptions and deductions the Governor proposes eliminating from the state income tax is the exemption for the rental value of parsonages provided to members of the clergy. It is estimated that the elimination of the parsonage allowance will increase state revenues by $2 million to $2.5 million. Also the Governor proposes eliminating the provision that would restore the personal charitable deduction if personal income tax rates reach 5%. [Thanks to Don Clark for the lead.]

Granddaughters of Founder Leave Westboro Baptist Church

Megan Phelps-Roper and her sister Grace-- daughters of Westboro Baptist Church leader Shirley Phelps-Roper, and granddaughters of Westboro's founder Fred Phelps-- have left the church, according to a report yesterday by Jeff Chu at Medium. Westboro's followers have become known for the virulent anti-gay signs they carry in picketing funerals of veterans and other venues. Megan says her doubts about church doctrine began with a conversation with Israeli web designer David Abitbol about one of the church's picket signs reading "Death Penalty for Fags."

Court Upholds Town's Zoning Denial For Bible Camp

In Eagle Cove Camp & Conference Center, Inc. v. Town of Woodboro, (WD WI, Feb. 1, 2013), a Wisconsin federal district court upheld a town's denial of a rezoning request and an application for a conditional use permit to construct a year-round Bible camp facility which, among other things, would minister to children with serious disabling medical conditions. Summarizing its holding, the court said:

The court has no reason to doubt plaintiffs, and particularly the Jaros brothers', sincere belief that they have been called to build a Bible camp on the land in issue -- and is aware of the years, talents and money spent, as well as dedication shown, in pursuit of that belief. Patently obvious is this court‟s inability to discern whether plaintiffs‟ utter lack of success to date is God's way of telling them -- through admittedly-imperfect, secular institutions -- to look elsewhere for a more acceptable location. Ultimately, only God knows if they should continue to knock at this particular door or look for an open window somewhere else. What appears substantially more certain, at least to this court, is that plaintiffs have no right to relief under RLUIPA, the United States Constitution or the Wisconsin Constitution. Indeed ... the undisputed facts demonstrate that plaintiffs do not meet their burden of establishing all the elements of proof under any of their claims.

Plaintiffs have filed a Notice of Appeal to the 7th Circuit. (See prior related posting.) [Thanks to Arthur G. Jaros for the lead]

President Speaks At National Prayer Breakfast; Says Dubois Leaving As Faith-Based Office Head

As reported by the Huffington Post, yesterday President Obama spoke at the National Prayer Breakfast organized by the Fellowship Foundation and held at the Washington Hilton Hotel. In his remarks (full text), the President announced that Joshua Dubois this week is leaving his position as head of the White House Office of Faith-Based and Neighborhood Partnerships. Huffington Post reports that DuBois will be teaching at New York University will start a new organization  to facilitate partnerships with faith based organizations. In his Prayer Breakfast remarks, the President also said:

As Christians, we place our faith in the nail-scarred hands of Jesus Christ.  But so many other Americans also know the close embrace of faith -- Muslims and Jews, Hindus and Sikhs.  And all Americans -- whether religious or secular -- have a deep and abiding faith in this nation.  

Suit Challenges Jesus Portrait In Public Middle School

The Freedom From Religion Foundation announced that it, along with the ACLU of Ohio, filed suit yesterday on behalf of parents and a student who attends Jackson, Ohio Middle School. The federal court lawsuit seeks removal of a portrait of Jesus displayed on an entrance wall in the school. The complaint (full text) in Doe v. Jackson City School District, (SD OH, filed 2/7/2013), alleges that the display violates the federal Constitution's Establishment Clause, as well as  Art. I, Sec. 7 of the Ohio Constitution. Plaintiffs sought court permission to file the lawsuit using pseudonyms (memo in Support of Motion). In response to the lawsuit, Liberty Institute (which had been engaged by the school board to make a recommendation on the matter) said that plaintiffs should have waited for its report to be completed.

Ground Zero Mosque Leader Sued For Diverting Funds

In 2010, New York City's Iman Feisal Abdul Rauf became well known-- until he was ousted in January 2011-- as the leader of a group that planned to build a mosque and Islamic center near "Ground Zero". (See prior posting.) Now, according to reports by the New York Daily News and Reuters yesterday, Rauf is being sued by a Westchester County couple who donated $167,000 to his Cordoba Initiative and the American Society for Muslim Advancement. The suit, filed in state court in New York, claims that Rauf used these funds, as well as $3 million from the Malaysian government for vacations and gifts for a woman with whom he shared a personal relationship, as well as for real estate, entertainment, and luxury sports car for himself and his wife. The suit also claims Rauf concealed his scheme by falsifying the charitable organizations' tax returns.

Teacher's Pregnancy Discrimination Claim Against Catholic School Must Go To Jury

In Dias v. Archdiocese of Cincinnati, (SD OH, Jan.30, 2013), a former technology coordinator at two Catholic Archdiocese schools sued under Title VII claiming pregnancy discrimination after she was fired for being pregnant and unmarried, and for becoming pregnant through artificial insemination. The court held that the suit was not barred by the ministerial exception doctrine since, as a non-Catholic who was not permitted to teach Catholic doctrine, plaintiff could not be considered a minister of the Catholic faith. The Archdiocese claimed it relied on the morals clause in the teacher's contract in dismissing her. The court concluded that it is up to a jury to determine the real reason for plaintiff's dismissal.  If it was a ban against premarital sex-- as opposed to a dismissal for being pregnant-- that would be permissible under Title VII, but only if the policy is enforced against men equally with women. The court, however, held that plaintiff could not sue for breach of contract because she knew she was in violations of its morals clause by hiding a long-term homosexual relationship from her employer. Courthouse News Service reports on the decision.

In China, Christian Activist Sues Local Police After Detention For Preaching In Park

According to yesterday's London Daily Telegraph, in China, Christian "house church" activist Cao Nan has filed a lawsuit against the police in the city of Shenzhen to challenge the police decision to detain him for 12 days for meeting with other Christians to preach and sing hymns in Shenzhen's Lizhi Park.  Police charged Cao with "falsely using the name of Christianity to harm social order." Cao hopes to encourage others to speak out against legal persecution and to vindicate his actions through legal means.

Feds Ease Rules On Taking Religious Items Through Federal Building Security

According to a news release this week from the Becket Fund, the Department of Homeland Security last December issued Federal Protective Service Directive Number: 15.9.3.1 creating a procedure to allow religious items through screening at federal buildings, even though they would otherwise be banned.  This has particularly become an issue with Sikh kirpans. The new policy was apparently not made public by the government until a few days ago. It provides in part:

Some items that are otherwise prohibited from a particular Federal facility may have some other legitimate and lawful purpose or use in a Federal facility, including as accommodations for civil rights and civil liberties under Federal laws such as Title VII of the Civil Rights Act, the Americans with Disabilities Act, the Rehabilitation Act, and the Religious Freedom Restoration Act. 

One of the attachments to the FPS Directive is a Training Document titled Accommodating Sikh Articles of Faith.

All of this occurred as yesterday the 5th Circuit heard oral arguments (recording of full arguments) in Tagore v. United States, a federal lawsuit by a former Internal Revenue Service employee who was fired after she insisted on wearing her kirpan in a Houston federal office building. (See prior posting.) [Thanks to Eric Rassbach for the lead.]

Court Dismisses 1 of 3 Suits Challenging Eruv In Long Island Village

The New York Times reports that a New York federal district court on Monday dismissed one of three lawsuits challenging a proposed eruv that Orthodox Jews in Westhampton Beach plan to put up. The dismissed lawsuit was brought by a group calling itself Jewish People for the Betterment of Westhampton Beach which claimed that permitting the eruv would violate the Establishment Clause. (See prior posting.) Proponents of the eruv, who see opposition as an attempt to keep Orthodox Jews out of the community, have bypassed a formal vote by the Village. Instead the East End Eruv Association entered a direct agreement with Verizon and Long Island Lighting to use their utility poles for the eruv-- a symbolic boundary that allows observant Jews to carry things outside their homes on the Sabbath.

Catholic Hospital Says Its "Fetus Is Not A Person" Defense Was Morally Wrong

As reported by the Denver Post, Colorado-based Catholic Health Initiatives (CHI) released a statement (full text) Monday acknowledging that it was "morally wrong" for lawyers representing St. Thomas More Hospital in Canon City, Colorado to raise in a malpractice suit the defense that Colorado's Wrongful Death Act that does not consider a fetus to be a person.  As previously reported, the defense came in a lawsuit by the husband and the daughter of a woman, pregnant with twins, who died in the hospital's emergency room, and who argued that at least a cesarean section should have been performed to save the twins. CHI said that if the Colorado Supreme Court grants review in the case, it will not cite the Wrongful Death Act which does not permit fetuses to sue.

Meanwhile, the losing plaintiff in the lawsuit, Jeremy Stodghill, has filed for bankruptcy because of the $47,000 in legal fees for the defendants awarded against him. CHI did not file a lien or pursue a claim in bankruptcy court against Stodghill, but a physician who was a co-defendant did file lien which led to the bankruptcy filing. Stodghill's attorney says, however, that CHI used the legal fee award as a negotiating tool to try to persuade Stodghill not to appeal.

Another Small Business Challenges Contraceptive Coverage Mandate

On Monday, another Christian-owned for-profit small business filed a challenge to the Affordable Care Act contraceptive coverage mandate. The complaint (full text) in Briscoe v. Sebelius, (D CO, filed 2/4/2013), alleges that plaintiff Stephen Briscoe, owner of affiliated corporations and LLCs that operate senior independent living, assisted living and skilled nursing facilities, believes that furnishing coverage for contraceptives that may prevent implantation of an already fertilized egg is a sin for which he will be held accountable.  Briscoe discovered that his companies' self-insured plan covers these types of contraceptives as controversy over the HHS Mandate arose.   The company that provides his businesses with insurance told him that without a judicial order, it cannot exclude such coverage. The suit claims that the mandate violates plaintiffs' rights under RFRA, the 1st and 5th Amendments and the Administrative Procedure Act. Alliance Defending Freedom announced the filing of the lawsuit.

Churches Split On Boy Scout Proposal To End Ban On Gay Scouts and Leaders

According to yesterday's New York Times, the Boy Scouts at their national board meeting in Texas this week may vote to drop its ban on gay scouts and gay scout leaders. According to today's Atlanta Journal Constitution, the Scouts' decision implicates many churches.  70% of scout troops are sponsored by churches. The three largest religious sponsors are Church of Jesus Christ of Latter-day Saints (37,000 units), the Methodist Church (11,000 units) and the Roman Catholic Church (8,000 units). Within church bodies, there are strong feelings on both sides of the issue. The most outspoken criticism of the proposed change has come from Southern Baptist churches.

UPDATE: On Feb. 6, the Boy Scouts announced that it is postponing until May a decision on whether to lift a ban on gay scouts and scout leaders. (AP).

Victims Argue That LA Archdiocese Document Release Is Incomplete

In accordance with a settlement in a lawsuit by clergy abuse victims, last week, the Catholic Archdiocese of Los Angeles released 12,000 pages of internal files on accused priests. (See prior related posting.) Now, according to yesterday's New York Times, victim advocates charge that the files released are incomplete and many documents are unaccounted for.  On many pages of documents, the names of supervisors of offending priests have been redacted. Lawyers for victims also argue that there should be many more documents. In litigation in which the Archdiocese opposed going through the documents to remove prior redactions, it argued that there were 30,000 pages, not the mere 12,000 produced.  The lawyer for the Archdiocese said the 30,000 number was a "wild guess."

Court Rejects Standing-Ripeness Defenses To Diocese's Contraceptive Coverage Challenge

In Roman Catholic Diocese of Fort Worth v. Sebelius, (ND TX, Jan. 31, 2013). a Texas federal district court rejected both standing and ripeness challenges to a lawsuit challenging the application of the Affordable Care Act contraceptive coverage mandate to the Fort Worth Diocese. The government argued that a temporary enforcement safe harbor for religious non-profits and the Advance Notice of Proposed Rulemaking proposing amendments to the Mandate make the case unripe for review and remove plaintiff's standing.  The court concluded however:

The Mandate ... is a final rule with a definite effective date, and neither the ANPRM nor Defendants’ related announcements change this. And because the Mandate is “on the books,” there is nothing improper about subjecting it to the limitations of the United States Constitution and other applicable laws.

The American Center for Law and Justice reports on the decision. [Thanks to Hillary Byrnes for the lead.]

Romanian Court Orders Demolition of Office Building To Protect Cathedral

The National Catholic Register reports that an appeals court in Romania has ordered the city of Bucharest to pay for the demolition of a 19-story skyscraper that threatens the physical security of an historic Catholic cathedral located just 26 feet away.  The Cathedral Plaza office tower, located in an active earthquake zone, threatens the unreinforced walls of Bucharest's Cathedral of St. Joseph. The office tower was built without proper permits or authorizations and contains a number of building code violations.  The court ordered  that the office tower site be restored to its prior condition as a small park.

Arkansas Legislature Passes Law Giving Churches Right To Allow Concealed Carry

As reported by KATV News, yesterday the Arkansas legislature gave final passage to SB 71, the Church Protection Act of 2013.  The bill eliminates the absolute ban on carrying a concealed handgun in a church or other place of worship, and allows the place of worship to decide who may carry a concealed handgun on their premises. The bill now goes to Gov. Mike Beebe who says he will sign it. Proponents of the bill say that current law infringes a church's freedom by deciding for it whether guns are permitted.

Archbishop Says Gays Should Be Protected From Discrimination

RNS reports that Archbishop Vincenzo Paglia, head of the Pontifical Council for the Family, in his first press conference sine he was appointed, urged protection of gays and lesbians from discrimination in countries where homosexuality is illegal. While emphasizing the Church's continued opposition to same-sex marriage, the Archbishop at a press conference yesterday said:

In the world there are 20 or 25 countries where homosexuality is a crime.  I would like the church to fight against all this.

Oregon AG Investigating Bakery's Refusal To Provide Cake For Same-Sex Wedding

The Oregon Attorney General's civil enforcement office has opened an investigation into a baker who refused to furnish a wedding cake for a lesbian couple's marriage.  According to today's New York Daily News, Aaron Klein, the owner of Sweet Cakes in Gresham, Oregon, says he was following his strong religious beliefs in deciding not to be a part of a same-sex marriage. Oregon's Equality Act of 2007 bars sexual orientation discrimination in public accommodations.

Mennonite Pastor Ordered Back To Jail For Refusing To Testify To Grand Jury

AP on Friday reported that Kenneth Miller, a Mennonite pastor from Stuarts Draft, Va., was sent back to jail by a Vermont federal district judge who has ordered him to testify before a grand jury about a man involved in the 2009 flight of Lisa Miller and her daughter to Central America. Kenneth Miller already faces up to 3 years in prison after  he was convicted of abetting an international kidnapping. (See prior posting.). He told Vermont district judge William Sessions III: "If I were to bring testimony against a fellow member of Christ’s kingdom, for honoring Christ’s kingdom’s laws, I would be disloyal to his kingdom and to Christ." Lisa Miller renounced homosexuality, became a Baptist and then a Mennonite, and fled the country after her former same-sex partner was awarded custody of of the daughter. Lisa Miller was originally granted custody, but after she refused to comply with visitation schedules for her former partner, courts in both Virginia and Vermont granted custody to the former partner. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Mine Yildirim, Religion in the Public and Private Turkish Workplace: The Approach of the Turkish Judiciary, (in A Test of Faith? Religious Diversity and Accommodation in the European Workplace, K. Alidadi, M.-C. Faoblets and J. Vrielink, (eds.), Ashgate, 2012).
• Steven H. Resnicoff, The Causes and Cures of Unethical Business Practices – A Jewish Perspective, (January 27, 2013).
• Deirdre M. Bowen, I Wanna Marry You: An Empirical Analysis of the Irrelevancy and Distraction of DOMAs, (January 31, 2013).
• Matthew I. Hall, How Congress Could Defend DOMA in Court (and Why the BLAG Cannot), (Stanford Law Review Online, Vol. 65, p. 92, 2013).

From SmartCILP:

• Haider Ala Hamoudi, Repugnancy in the Arab World, [Abstract], 48 Willamette Law Review 427-450 (2012).
• Javaid Rehman and Stephanie E. Berry, Is "Defamation of Religions" Passe? The United Nations, Organisation of Islamic Cooperation, and Islamic State Practices: Lessons from Pakistan, [Abstract], 44 George Washington International Law Review 431-472 (2012).
• Remembering David Michael Cobin. Introduction by Howard J. Vogel; articles by Paul Finkelman, Daniel Sinclair, Michael J. Broyde, Ira Bedzow and Earl Schwartz; memorial by Michael Tsur. 35 Hamline Law Review 547-673 (2012).

NFL Publishes Copyright Guidelines For Church Super Bowl Viewing Parties

With the Super Bowl about to begin, it should be noted that again this year the NFL has issued Guidelines to prevent copyright infringement by churches that are hosting viewing parties.  As reported by Copyright Community:

A church may hold their “viewing party” in its usual place of worship and must not charge a fee for attending such viewing party. If those requirements are met, the NFL will not object when a church has a party for its congregants to watch the Super Bowl together.”...

If  a church is only using NFL marks and no logos to describe the party in materials distributed to its congregants, the NFL will not object. For example, you can refer to the party as the Super Bowl party and you can refer to the two teams participating (i.e., “San Francisco 49ers vs. Baltimore Ravens”), but cannot use the NFL Shield, Super Bowl or Club logos.

British Court For First Time Refers Marital Dispute For Arbitration By Jewish Religious Court

As reported by the Hodge Jones & Allen law firm, the English and Wales High Court (Family Division) last week handed down a judgment that for the first time in Britain endorsed the determination of a matrimonial dispute through reference to a Jewish religious court (Bet Din).  In AI v. MT, (EWCH, Jan. 30, 2013), after the parties instituted custody proceedings in British courts, they agreed to refer their disputes to arbitration by a senior rabbi, Rabbi Geldzehler of the New York Bet Din.  They then asked to court to enter an order referring the case to the Bet Din. The court then recounted:

At the outset ... I indicated to the parties that I did not consider the terms of the draft order to be lawful. In particular, they flouted the principle that the court's jurisdiction to determine issues arising out of the marriage... cannot be ousted by agreement. On the other hand, having regard to the parties' devout religious beliefs and wish to resolve their dispute through the rabbinical court, and acknowledging that it always in the interests of parties to try to resolve disputes by agreement wherever possible... I indicated that the court would in principle be willing to endorse a process of non-binding arbitration....

I indicated that I would endorse the parties' proposal to refer their disputes to a process of arbitration before the New York Beth Din on the basis that the outcome, although likely to carry considerable weight with the court, would not be binding and would not preclude either party from pursuing applications to this court in respect of any of the matters in issue....

It was not until September 2011 ... that the New York Beth Din eventually handed down its ruling on the arbitration. The award covered all issues between the parties.... Even then, there were further negotiations between the parties....

There was, furthermore, one remaining impediment. Under Jewish law, it was necessary for the father to give the Get. Within orthodox Jewish culture, great social stigma attaches to a woman who is separated from her husband but has not been granted a Get.... For this reason, the mother was unwilling to agree to the complex provisions of the arbitration award unless the Get was given. Equally, the father was unwilling to agree to give the Get until the court had approved the award and indicated that it would agree to its terms being incorporated in a court order. The solution arrived at by the parties was for the court to convene a hearing, consider the terms of a draft order based on the arbitration award and, if so minded, indicate that it would be prepared to make the order in the best interests of the children, whereupon the father would forthwith attend at the London Beth Din with the mother and go through the lengthy ceremony for the giving of the Get....

DOJ Reaches Settlement With California City Over Permit For Islamic Center

The Justice Department announced Friday that it has reached a settlement with the city of Lomita, California in a RLUIPA lawsuit challenging the city's refusal to allow the Islamic Center of South Bay to tear down existing buildings it is using and replace them with a single worship and activities center. Under the Agreed Order (full text) in United States v. City of Lomita California, (CD CA), the city will consider on an expedited basis a new application from the Islamic Center. The parties have separately reached an agreement on its contents. The city will also comply with training, reporting, record keeping and monitoring provisions set out in the Agreed Order. The order must still be approved by the court. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Thompson v. Smeal, (3d Cir., Feb. 1, 2013), the 3rd Circuit vacated the trial court's decision and remanded for further proceedings an inmate's complaint that Christian inmates were not allowed to congregate for special feasts on Christmas and Easter, even though various other religious groups were allowed special religious meals.

In Weeks v. Corizon Medical Services, 2013 U.S. Dist. LEXIS 10016 (ED MO, Jan. 25, 2013), a Missouri federal district court dismissed an inmate's complaint that he was forcibly injected with a tuberculosis test, in violation of his sincerely held beliefs as a member of The House of Yahweh.

In Lewis v. Zon, 2013 U.S. Dist. LEXIS 10374 (WD NY, Jan. 25, 2013), a New York federal district court dismissed a Jewish inmate's complaint that his RLUIPA and free exercise rights were violated by prison policies in the Special Housing Unit requiring the plastic wrap covering his kosher meals to be removed and barring him from attending congregational services. It also rejected his claim that denying him food he needed for medical reasons on Jewish fast days violates the Establishment Clause.

In Pennick v. Williamson, 2013 U.S. Dist. LEXIS 10420 (WD WA, Jan.25, 2012), a Washington federal district court dismissed on qualified immunity grounds an inmate's complaint that for two days he was mistakenly left off the list of those to receive Passover food.  In a separate order (2013 U.S. Dist. LEXIS 10489, Jan. 24, 2013) the court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185127, Oct. 19 2012) to allow plaintiff to proceed with his complaint regarding what lists control entitlement to Passover meals.

In Blanks v. Cate, 2013 U.S. Dist. LEXIS 11233 (ED CA, Jan. 25, 2013), a California federal magistrate judge recommended dismissing complaints by a Rastafarian inmate that authorities failed to procure a Rastafarian chaplain, did not provide a separate outside place of Rastafarian worship, delayed issuing renewed artifact chronos and approval of a Rastafarian religious vendor.

In Ward v. Rich, 2013 U.S. Dist. LEXIS 11310 (CD CA, Jan. 25, 2013), a California federal district court adopted a magistrate's recommendation (2012 U.S. Dist. LEXIS 185223, Sept. 26, 2012) and dismissed claims that an inmate was punished for continually singing gospel songs, and that he was denied his Bible for three days.

In Warren v. Washington, 2013 U.S. Dist. LEXIS 12679 (WD MI, Jan. 30, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185360, Dec. 10, 2012) and dismissed an Orthodox Jewish inmate's complaint that he was discriminated against, was banned from the building where the Messianic Jewish group was allowed to continue their services, and was forced to practice his religion outside on a smoke pad.

In Crawford v. Bukowski, 2013 U.S. Dist. LEXIS 12113 (CD IL, Jan. 28, 2013), an Illinois federal district court dismissed an inmate's claim that he was denied vegan meals that were required by his religious beliefs.

In Papa v. Chester County Prison, 2013 U.S. Dist. LEXIS 13054 (ED PA, Jan. 31, 2013), a Pennsylvania federal district court dismissed an inmate's complaint that he had not received kosher meals, had rarely seen a rabbi, did not have his worship requests met and received a Tanach only after significant delay.

In Sargent v. New Hampshire Department of Corrections, 2013 U.S. Dist. LEXIS 13964 (D NH, Jan. 31, 2013), a New Hampshire federal magistrate judge in a supplemental report concluded that an inmate's free exercise rights were not violated when he was barred from proselytizing other inmates during the sex offender treatment program.

In Ericson v. Magnusson, 2013 U.S. Dist. LEXIS 12992 (D ME, Jan. 31, 2013), a Maine federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185504, Dec. 18, 2012) and permitted an inmate to move ahead with claims for declaratory or injuntive relief based on his complaint that he was not allowed to attend Protestant worship services or fast, and was not given access to sufficient hymnal books or a baptismal font.