California Trial Court Issues Tentative Ruling Against Episcopal Church In Property Dispute

A California state trial court has issued a tentative ruling (full text), subject to change if either party requests oral argument, in Diocese of San Joaquin v. Schofield, (Fresno Super. Ct., March 6, 2013). The case involves an attempt by The Episcopal Church to establish its title to property of the break-away San Joaquin Diocese.  As previously reported, a state appeals court held that the trial court should apply neutral principles of law to determine the validity of property transfers allegedly made by break-away Bishop John-David Schofield before he was replaced. The Episcopal Church moved for summary judgment, arguing that because all the property transfers occurred after Schofield was removed as Bishop, the transfers were invalid. The court, in its tentative ruling, however refused to grant the motion, saying:

It is not enough for plaintiffs to merely state that Schofield was not the Episcopal Bishop of the Diocese of San Joaquin when he effected the transfers at issue. Plaintiffs were also required to show that, under neutral principals of law, Schofield lacked the authority to effect such transfers.... An individual incorporated as a corporation sole "may at any time amend the articles of incorporation of the corporation...."   (Corp. Code, § 10010.)... Plaintiffs have utterly failed to present either facts or evidence from which this court could conclude that the December 8, 2007 amendments enacted to leave the Episcopal Church were invalid.... In short, there is nothing to for this court to review under neutral principals of law.

Anglican Curmudgeon blog comments on the tentative ruling.

South Carolina Episcopal Bishop Sues Break-Away Parishes Over Right To Be Identified As Protestant Episcopal Church

As reported by AP,  yesterday Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church filed a federal lawsuit against Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. The complaint (full text) in von Rosenberg v. Lawrence, (D SC, filed 3/6/2013), asserts trademark infringement and false advertising claims under the federal Lanham Act and seeks to enjoin the break-away congregations from using the name and symbols of the Protestant Episcopal Church in the Diocese of South Carolina. However, plaintiffs see the suit in broader terms. von Rosenberg said: "The intent of this suit is straightforward. We are asking the court to determine who is authorized to serve as bishop of the Episcopal Diocese of South Carolina."

The suit counters a state court lawsuit initially filed in January by the Diocese of South Carolina seeking to claim the right to diocese property and identity  (see prior posting). In that case the state court issued a temporary injunction to block the faction remaining with TEC from using the name "The Protestant Episcopal Church in the Diocese of South Carolina." (Background). Since then, the break-away group has used the name "Diocese of South Carolina." while the TEC congregations are using the name "The Episcopal Church in South Carolina." The Anglican Curmdgeon blog comments on the new lawsuit from the perspective of the break-away congregations.

Consent Decree Vindicates ACLU's Challenge of Library's Web Filtering Categories

In a consent order in Hunter v. Board of Trustees, Salem Public Library, (ED MO March 5, 2013), a Missouri federal district court ordered the Salem, Missouri public library to refrain from reactivating on its public computers filters that blocked websites relating to the categories "occult" or "criminal skills." (ACLU press release.) The suit was filed by the ACLU on behalf of a Salem resident who was blocked from accessing websites discussing Native American and Wiccan ideas about death or death rituals. The library had already changed its policy before this lawsuit was filed. (See prior related posting.) The St. Louis Post-Dispatch reports on the order.

Scottish Charity Regulator Holds Catholic Adoption Agency Does Not Qualify As A Charity

In a Report (full text) issued March 5, the Office of the Scottish Charity Regulator confirmed its Jan. 2013 decision that St. Margaret's Children and Family Care Society, a Catholic adoption agency based in Glasgow, fails to qualify as a "charity" under the Charities and Trustee Investment (Scotland) Act 2005.  The conclusion was based on the finding that St. Margaret's violates the Equality Act 2010 by discriminating against non-Catholics, and against same-sex couples, in placing children for adoption.(OSCR press release.) As summarized by the Report:

OSCR found that the charity does not provide public benefit because the way it provides benefit involves unlawful discrimination, which causes detriment to the public and to particular groups of people, the effect of which outweighs the other positive effects of the charity’s work. OSCR also found that access to the benefits the charity provides is unduly restricted. OSCR therefore found that the charity fails the charity test and confirmed the decision to direct the charity to meet the charity test.

The National Secular Society, which filed the original complaint against St. Margaret's, also issued a press release on OSCR's report.

Mississippi Legislature Adopts Student Religious Liberties Act

The Mississippi State Legislature has passed overwhelmingly and sent to Gov. Phil Bryant for his signature S.B. 2633, the Mississippi Student Religious Liberties Act of 2013.  The state Senate passed the bill by a vote of 50- 1 last month, and the House yesterday passed it by a vote of 109-6, with 5 not voting, absent or voting present. The bill prohibits public school from discriminating against students or parents on the basis of religious viewpoint or religious expression, including the expression of religious beliefs in homework or classroom assignments. It provides that students may pray, engage in religious activities and religious expression, and organize religious clubs and gatherings before, during and after the school day to the same extent that students may engage in nonreligious activities. It calls for schools to adopt a policy that creates a limited public forum at all events at which students speak publicly, and sets out a Model Policy that meets the statutory requirements. The Model Policy includes provisions that allow students, selected under neutral criteria, to introduce football games and speak at graduation ceremonies without discrimination against religious views they espouse. AP reports on the bill's passage.

UPDATE: AP reports that Mississippi Gov. Phil Bryant signed the bill on March 14.

Developments In Small Business Challenges To the Contraceptive Coverage Mandate

In Sioux Chief Mfg. Co., Inc. v. Sebelius, (WD MO, Feb. 28, 2013), a Missouri federal district court, with the consent of both parties, enjoined enforcement of the Affordable Care Act contraceptive coverage mandate against a small plumbing products company and its Catholic owners until the 8th Circuit rules on one of two cases before it raising similar issues. The court also stayed all proceedings in the case until the 8th Circuit rules. (See prior related posting.) LifeNews reports on the court's action.

Meanwhile, in Colorado another small business, along with its Evangelical Christian owners, filed a federal lawsuit challenging the contraceptive coverage mandate on 1st, 5th, 14th Amendment, RFRA and Administrative Procedure Act grounds.  The complaint (full text) in Armstrong v. Sebelius, (D CO, filed 3/5/2013), alleges that the shareholders of the Cherry Creek Mortgage Co. only realized last December that the company's health insurance policy covers contraceptive drugs that operate as abotrtifacients. Because there was not time to seek judicial relief before Jan. 1, the company (at least temporarily) kept the same coverage to comply with the mandate. An ADF press release reports on the filing of the lawsuit.

On a separate front, three members of the House of Representatives announced that they, with 50 co-sponsors, have introduced the Health Care Conscience Rights Act (full text). The proposed bill would provide that no individual, issuer or sponsor can be required to purchase or furnish health insurance coverage that includes coverage of an abortion or other service to which the individual, issuer or sponsor has a moral or religious objection. The bill would also strengthen conscience rights for health care providers who have objections to abortions. According to CNS, one of the bill's sponsors said it is possible that the bill could be attached to the House version of the continuing resolution that would keep the federal government operating after March 27.

Cert. Petition Filed Challenging Enjoining of Anti-Abortion Church Picketers

On Monday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Scott v. St. John's Church in the Wilderness. In the case, a Colorado appeals court (full text of opinion) enjoined anti-abortion protesters from engaging in certain kinds of protest activity aimed at a church they believed had gone astray.  The injunction applied during periods from shortly before to shortly after church services. The primary portion of the injunction challenged on appeal prohibits defendants from:

displaying large posters or similar displays depicting gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children under 12 years of age attending worship services and/or worship-related events at plaintiff church.

A Thomas More Society press release discusses further the certiorari petition. Eugene Volokh, one of the drafters of the cert. petition, discusses it further at Volokh Conspiracy.

 

Israel May Have Coalition Government That Dramatically Changes Current Religion-State Arrangements

A New York Jewish Week article today speculates that dramatic changes in the relationship of religion and government could be in the offing in Israel as Benjamin Netanyahu moves to form a coalition government that may exclude the haredi (strictly Orthodox) Shas and United Torah Judaism parties. In the coalition negotiations, Yair Lapid of Yesh Atid and Naftali Bennett of the Jewish Home Party, which together hold 31 seats in the Knesset, have pledged they will not join a government with the haredi parties.

Among the changes that could result are limiting or ending draft exemptions for yeshiva students, easier conversion to Judaism of immigrants from the former Soviet Union who have been unable to prove that they are Jewish under Jewish religious law, an end to the Orthodox monopoly over Jewish marriage and divorce, and proportionate government funding of the Reform and Masorti (Conservative) branches of Judaism along with Orthodox.

Czech Constitutional Court Refuses Injunction Pending Its Decision On Church Restitution Law

Last year the Czech Republic passed a law on return of church property confiscated during the country's Communist regime. Under the law, the government will return land worth 75 billion crowns and will pay additional compensation of 59 billion crowns over the next 30 years. (See prior posting.)  Challenges to the law have been filed in the country's Constitutional Court, and the court has agreed to decide one of those cases challenging its constitutionality. Nevertheless, the government moved ahead on Feb. 22 to sign contracts with 16 churches and religious societies on their financial compensation.  The opposition Social Democratic Party filed with the Constitutional Court asking it to enjoin the government moving ahead with the contracts pending the court's decision on the validity of the entire law. Prague Daily Monitor reported yesterday that the Constitutional Court dismissed the injunctive action ruling that it lacks jurisdiction since it may only decide constitutional challenges.

Attorneys For Abuse Victims Speculate That Benedict May Be More Vulnerable Legally After His Resignation

AP reports yesterday that attorneys for clergy sex abuse victims are exploring whether Pope Benedict XVI's resignation makes him more vulnerable to successful legal action challenging his failure to act more aggressively against priests involved. They speculate that the resignation may make prosecutors more likely to act, particularly as to his role before he became Pope when he was head the Congregation for the Doctrine of the Faith that was charged with dealing with the abuse claims. However a lawyer for the Vatican says that Benedict retains legal immunity as a former head of state. The Center for Constitutional Rights in New York is urging the International Criminal Court to investigate the Vatican's response to abuse as crimes against humanity.

Tithing Not A Necessary Expense In Computing Installment Payments To IRS

In Thompson v. Commissioner, (USTC, March 4, 2013), the U.S. Tax Court faced the question of the extent to which a taxpayer entering an installment agreement for the payment of back taxes should be allowed to continue to tithe to the Mormon Church.  George Thompson, who was a volunteer shift coordinator and a stake scouting coordinator for the Church, sought a partial payment installment agreement with the IRS for the over $880,000 in taxes and penalties he owed. The IRS offered an agreement under which he would pay $8389 per month, computed by deducting from Thompson's monthly income those items the IRS classified as "necessary expenses." Thompson claimed that his $2110 per month tithing expenses to his Church should also be a necessary expense.

The Internal Revenue Manual provides that "necessary expenses" include those that are a condition of employment. Thompson would be required to resign from his positions with the Church if he stopped tithing. The Tax Court concluded, however, that while required tithing by a minister who receives compensation would be a necessary expense, this does not apply to expenses connected with uncompensated activities. The Internal Revenue Manual also classifies payments for a taxpayer's health and welfare as necessary ones. However the court said it was not an abuse of discretion to exclude payments relating to "spiritual health." The Tax Court also rejected Thompson's arguments under the free exercise clause and RFRA. TaxProf Blog reports on the decision.

Malaysians Can Now Deduct Contributions To Places of Worship

Today's New Straits Times reports that this year for the first time Malaysians will be able to deduct from their income tax returns contributions made last year to approved places of worship. Under The Income Tax (Amendment) Act 2012, these type of donations were further encouraged by provisions allowing religious organizations to create a place-of-worship management fund to which tax deductible contributions can be made.

Philippine Ombudsman Dismisses Prosecution of Controversial Artist and Cultural Center Trustees

The Philippine Daily Inquirer yesterday reported that the Ombudsman of the Philippines has dismissed a criminal case that had been filed against controversial artist Mideo Cruz and ten members of the Board of Trustees of the Cultural Center of the Philippines. The prosecution had charged defendants with violating Article 201 of the Revised Penal Code, the law which penalizes offenses against decency and good customs, because of the display of Cruz's collage titled Poleteismo as part of the 2011 Kulo art exhibit organized by the Cultural Center. Some Catholics had objected to Cruz’s mixing of religious images with phallic symbols, a condom and Mickey mouse ears. The Ombudsman also held that that there is no substantial evidence to hold Cultural Center officials administratively liable either.

Pastor Who Aided International Parental Kidnapping Sentenced To Prison, But Stayed Pending Appeal

Christian News Network reports that a federal court judge in Burlington, Vermont yesterday sentenced Mennonite pastor Ken Miller of Stuarts Draft, Virginia to 27 months in prison plus one year of supervised probation after Miller was convicted last year of abetting an international parental kidnapping. (See prior posting). Miller's conviction grew out of the assistance he gave to Lisa Miller (no relation to the pastor), who-- before declaring herself a born-again Christian-- had been in a Vermont civil union with another woman. She now sought to avoid the court-ordered child visitation rights awarded to her former partner by fleeing with her daughter. The pastor helped her ultimately get to Nicaragua and obtain shelter from missionaries there. Edge quotes from a letter that Pastor Miller sent to the sentencing judge ahead of the sentencing decision in which Miller calls the decree awarding visitation rights "inhumane" and said the court is judging his faith, conscience and deeply held moral beliefs. Judge Sessions, after imposing the prison sentence, ruled that imposition of the sentence would be stayed pending an appeal on whether the case should have been tried in Virginia instead of Vermont.

Secularist Group Issues Report Critical of Religious Fundamentalism In U.S. Military

The Center for Inquiry last week released a 36-page position paper titled For God and Country: Religious Fundamentalism In the U.S. Military. The report was authored by retired Air Force Lieutenant Colonel James Parco, a former Air Force Academy faculty member and a leading critic of religious proselytizing at the Academy. The report summarizes its findings as follows:

Tension over what constitutes proper religious expression within the United States military has significantly intensified over the past decade. This paper examines and analyzes recent reports and several prominent cases, revealing how religiously motivated behavior has increased over the years and remains either tacitly or overtly endorsed by senior military leaders. In light of increasing religious fundamentalism within the ranks, coupled with a lack of social and political will to affect change, the cultural reticence to hold commanders accountable for inappropriate behavior remains an obstacle. The paper concludes with actionable recommendations.

[Thanks to Scott Mange for the lead.] 

Court Denies Injunction In Businesses' Challenge To Contraceptive Coverage Mandate

In Gilardi v. Sebelius. (D DC, March 3, 2013), the D.C. federal district court refused to issue a preliminary injunction to prevent enforcement of the Affordable Care Act contraceptive coverage mandate in a suit by two related for-profit Subchapter S corporations and their Catholic owners.  Plaintiffs object on religious grounds to providing coverage for contraception, sterilization and contraceptive methods that act as abotifacients. The court concluded that plaintiffs failed to show a likelihood of success on the merits of their claim under the Religious Freedom Restoration Act.

The court refused to impute the owners' religious views onto their corporations, holding that it must evaluate the claims of the owners and the businesses separately.  Declining to decide whether a for-profit business could ever exercise religion, the court held that in this case the charitable activities and other actions pointed to by plaintiffs do not establish that these companies exercise religion, so the contraceptive coverage mandate cannot impose a substantial burden on them.  Moving to claims by the individual owners, the court held that a substantial burden is not shown merely by plaintiffs claiming that it is such. Here the owners have not shown a substantial burden because they are not required to personally support, endorse or engage in pro-abortion or pro-contraception activity; only the corporations are.

US and Russian Branches of Chabad At Odds Over Putin's Suggested Lawsuit Compromise

As previously reported, U.S. courts have ordered the Russian government to return two expropriated collections of valuable Jewish religious books and manuscripts (the Schneerson Library and the Archive) to the U.S. Chabad organization. Recently Russian President Vladimir Putin has suggested a possible compromise-- keeping the portion of the collection that was nationalized by the Bolsheviks in Moscow's Jewish Museum and Tolerance Center, a museum controlled by the Russian branch of Chabad.  According to yesterday's Forward, the proposal has placed the Russian and U.S. branches of Chabad at odds. Nathan Lewin, lawyer for the Brooklyn-based branch of Chabad has rejected Putin's suggestion.  However, Boruch Gorin, a spokesman for the Russian Chabad's Federation of Jewish Communities, said that Lewin's rejection of the proposed compromise could be "dangerous [for] the future of the Jewish community in Russia." Gorin says that the U.S.-based Chabad should focus on seeking return only of the Archive, which was seized by the Nazis, and only later by the Red Army. The Library, on the other hand, was nationalized by the Bolshevik government in 1917, and its return would create a more difficult precedent for Russia because of the large amount of property nationalized by the Bolsheviks.

Recent Articles of Interest

From SSRN:

• Vito Breda, Sharia Law in Catholic Italy: A Non-Agnostic Model of Accommodation, (February 18, 2013).
• Megan Pearson, Proportionality: A Way Forward for Resolving Religious Claims?, (Nick Spencer (ed.) Religion and Law (London: Theos Think Tank, 2012).)
• Andrew M. Koppelman, And I Don't Care What It Is: Religious Neutrality in American Law, (Pepperdine Law Review, Vol. 39, 2013).
• Paul Horwitz, Defending (Religious) Institutionalism, (Virginia Law Review, Forthcoming).
• John Witte and Joel A. Nichols, Who Governs the Family? Marriage as a New Test Case of Overlapping Jurisdictions, (Faulkner Law Review (Forthcoming 2013)).
• Elizabeth L. Hillman, Outing the Costs of Civil Deference to the Military, (60 Journal of Homosexuality 312, 2013).

From SmartCILP:

• Symposium: The Competing Claims of Law and Religion. Introduction by Robert F. Cochran, Jr. and Michael A. Helfand; articles by James Davison Hunter, Andrew Koppelman, Michael Stokes Paulsen, Abdullahi A. An-Na'im, Mark Strasser, Susan J. Stabile, Barak D. Richman, Sherman J. Clark and John Lawrence Hill; responses by Zachary R. Calo, Patrick McKinley Brennan, Chad Flanders, Richard W. Garnett, Eugene Volokh and Mohammad H. Fadel. 39 Pepperdine Law Review 1051-1425 (2013).
  
• The Sixth Annual John F. Scarpa Conference on Law, Politics, and Culture. A Celebration of the Work of John Finnis. Introduction by Patrick McKinley Brennan; articles by George C. Christie, Michelle Madden Dempsey, Frederick G. Lawrence, Rev. Martin Rhonheimer, Candace Vogler and Michael J. White; responses by Patrick McKinley Brennan, Matthew Lister, Anna Bonta Moreland, Michael P. Moreland and Rev. Richard A. Munkelt; keynote response by John Finnis. 57 Villanova Law Review 809-955 (2012).

Legal Documents To Assist In Following the Upcoming Papal Election

With the proceedings leading to the election of a new Pope scheduled to begin tomorrow, here are formal legal documents and other useful resources for following the process.

The formal rules for electing a pontiff are found in the Apostolic Constitution, On the Vacancy of the Apostolic See and the Election of the Roman Pontiff, promulgated by Pope John Paul II in 1996, as modified by the Apostolic Letter, On Certain Modifications to the Norms Governing the Election of the Roman Pontiff, promulgated by Pope Benedict XVI on Feb. 22, 2013. (An intermediate amendment to the rules promulgated by Pope Benedict XVI in 2007 (full text in French) has been superseded by his 2013 amendments.)

On March 1, Angelo Cardinal Sodano, Dean of the College of Cardinals, issued a formal letter (full text) notifying the Cardinals of the vacancy in the Apostolic See and convoking "the first of the General Congregations of the College of Cardinals, to be held Monday, March 4 at 9:30 am in Paul VI Hall, in the room of the Synod of Bishops."

The OUP Blog has posted a useful guide titled An Oxford Companion to the 2013 Papal Elections.

Recent Prisoner Free Exercise Cases

In Williams v. Fisher, 2013 U.S. Dist. LEXIS 23275 (ND NY, Feb. 20. 2013), a New York federal district court adopted a magistrate’s recommendation (2013 U.S. Dist. LEXIS 24560, Jan. 29, 2013) and refused to dismiss a complaint by a Nazarite Jewish inmate that his religious dietary needs were not being met.

In Elder v. Scolapia, (WV Sup. Ct., Feb. 22, 2013), the West Virginia Supreme Court of Appeals rejected claims by petitioner who was sentenced to home incarceration after pleading guilty to sexual abuse and assault charges that his rights were infringed when the trial court denied his request to attend religious services at a specific church.

In Smith v. Owens, 2013 U.S. Dist. LEXIS 22722 (MD GA, Feb. 20, 2013), a Georgia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 25428, Jan. 15, 2013) and permitted a Muslim inmate to proceed with his claim for injunctive relief under RLUIPA.  Plaintiff claims that the Georgia prison grooming policy violates his rights by not permitting him to grow a beard for religious purposes. Other claims by plaintiff were dismissed.

In Rogers v. Giurbino, 2013 U.S. Dist. LEXIS 26293 (SD CA, Feb. 26, 2013), a California federal district court dismissed an inmate's claim that suspension of Protestant group prayer services, fellowship and ministry classes during the prison lock downs violated his rights under RLUIPA.

In Toland v. Williams, 2013 U.S. Dist. LEXIS 26198 (SD GA, Feb. 26, 2013), a Georgia federal magistrate judge permitted an inmate to proceed with his claim that he did not receive the restricted vegan diet demanded by his religious beliefs.

In Mills v. McGarry, 2013 U.S. Dist. LEXIS 26953 (SD WV, Feb. 26, 2013), a West Virginia federal district court, rejecting a magistrate's recommendation (2012 U.S. Dist. LEXIS 186457, Dec. 11, 2012), permitted a Hare Krishna inmate to proceed with his motion for an emergency preliminary injunction under RLUIPA challenging a policy that required him to waive his medical diet in order to receive a diet that comported with his religious beliefs. Agreeing with the magistrate's other recommendations, the court dismissed plaintiff's 1st and 8th amendment and state constitutional claims, saying in part that: "giving a prisoner daily sustenance whose quality comports with the overwhelming majority of society's standards, but of a nature that does not fully comport with a prisoner's religious beliefs" does not amount to cruel and unusual punishment.

In Rutherford v. Hines, 2013 U.S. Dist. LEXIS 24255 (D SC, Feb. 22, 2013), a South Carolina federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 26312, Jan. 31, 2013) and dismissed an inmate's free exercise claims regarding not receiving a pork-free diet while a pre-trial detainee.

In Duwenhoegger v. King, 2013 U.S. Dist. LEXIS 23498 (D MN, Feb. 21, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 25255, Jan. 28, 2013), and dismissed an inmate's complaint that he was not permitted to send or receive mail using the honorific title "Pastor," and was denied participation in a correspondence Bible studies course while he was in segregation. The court also rejected a large number of complaints about other aspects of plaintiff's confinement.

In Bramlett v. Ligget, 2013 U.S. Dist. LEXIS 27374 (SD IL, Feb. 28, 2013), an Illinois federal district court permitted an inmate to proceed with claims that the correctional center mail room supervisor interfered with his receiving gospel tracts and a religious enrollment form that had been sent to him.

In Cooke v. United States Bureau of Prisons, 2013 U.S. Dist. LEXIS 26947 (D NC, Feb. 27, 2013), a North Carolina federal district court allowed inmates, who were confined to wheel chairs, to proceed with complaints under RFRA and the 1st Amendment that unlike detainees without disabilities they cannot access the religious library or outdoor pagan worship area at their correctional facility.

In Hughes v. Heimgartner, 2013 U.S. Dist. LEXIS 26727 (D KA, Feb. 27, 2013), a Kansas federal district court, while dismissing a number of claims, permitted a Muslim inmate to move ahead with claims for declaratory and injunctive relief under RLUIPA and the 1st Amendment in a suit alleging that while in segregation he had been denied the Halal meal for Eid  ul Fitr that was available to other Muslim inmates.

In Maldonado v. Yates, 2013 U.S. Dist. LEXIS 27163 (ED CA, Feb. 26, 2013), a California federal magistrate judge recommended dismissal of an inmate's complaint that under prison rules he is not allowed to attend religious services of more than one religious group, and that he was denied a kosher diet that he says is better for his health and mental disability. The court said in part: "Plaintiff appears to seek the option to sample whatever religion suits his interest, which is not the purpose of the rights protected by the Free Exercise Clause."

Constitutional Issue Avoided In Preacher's Guilty Plea For Possessing Poisonous Snakes

In a Tennessee trial court last Monday, James Coots, pastor of the Full Gospel Tabernacle in Jesus Name in Middlesboro, Kentucky, pleaded guilty to illegally possessing poisonous snakes. According to UPI, Coots, whose church engages in the practice of snake handling, legally acquired the snakes in Alabama and was driving through Tennessee taking the snakes to Kentucky where they are also legal to possess. Tennessee police discovered the snakes when they pulled Coots over for having too darkly tinted windows in his car.  Coots lawyer says he believes seizing the snakes was unconstitutional. However, apparently in a plea deal, Coots received only one-year probation in exchange for his guilty plea.

Clergy Have Mixed Views of Arkansas Lifting of Gun Ban In Churches

As previously reported, last month Arkansas adopted the Church Protection Act that removes the absolute ban on carrying handguns in houses of worship and leaves the decision on who may carry a concealed weapon into a church up to each congregation. The Arkansas Times reports this week that the change has been greeted with mixed feelings.

Faith Assembly of God minister Nic Horton says that the new law will allow smaller, rural churches to provide security by arming a few specific trusted parishioners. He says that allowing churches to make that kind of decision is "the real meaning of the separation of church and state."  However Presbyterian minister Marie O'Connell has a different perspective. She complains:

I have to take time out from pastoring and teaching and preaching to work on an issue that was a non-issue before the government decided they wanted it to be an issue. It's a perfect example of society imposing on religion, and religion having to consider: What does this mean? What does this mean for what I believe?"

Court Denies Preliminary Injunction To Non-Liturgical Protestant Navy Chaplains

In In re: Navy Chaplaincy, (D DC, Feb. 28, 2013), the D.C. federal district court refused to issue a preliminary injunction in a suit claiming that the U.S. Navy's chaplain selection process results in denominational favoritism that prefers Catholic and liturgical Protestant chaplains, to the disadvantage of non-liturgical Protestant chaplains. The suit brought by former chaplains, chaplain endorsing agencies and a group of churches claimed, primarily on the basis of statistical evidence, that the Navy discriminates against non-liturgical chaplains in violation of the Establishment Clause and the equal protection component of the 5th Amendment. Plaintiffs point to the unique voting procedures used by chaplains on selection boards. The court held that plaintiffs must prove discriminatory intent to show a constitutional violation, and have failed to do so. The mere disparate impact shown here was not enough to require an inference of purposeful intent. The court's decision came after the case was remanded to it from the D.D. Circuit Court of Appeals. (See prior posting.)

Spanish Supreme Court Invalidates City's Burqa Ban

ANSAMED reports that on Thursday the Supreme Court of Spain overturned a local ban on clothing that covers the face, such as the burqa.  The Catalonian city of Lierda enacted the ban in 2010.  In a challenge to it by the Catalan Muslim Association, the Supreme Court ruled that banning the Islmic veil infringes religious freedom. The full Supreme Court opinion in Spanish is available from this link.

Colorado Appeals Court Rejects Challenge To School Voucher Program

In Taxpayers for Public Education v. Douglas County School District, (CO App., Feb. 28, 2013), a Colorado state appeals court in a 2-1 decision upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students could obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. The appeals court majority held that plaintiffs lack standing to claim that the scholarship program violates the Colorado Public School Finance Act.  The majority also concluded that the voucher program does not violate provisions of the Colorado Constitution that prohibit funding or support of sectarian institutions. Judge Bernard dissented, arguing that the program violates Colorado Constitution Art. IX, Sec. 7 that prohibits state support for any school controlled by any church or sectarian denomination. The ACLU issued a press release, saying it would appeal the decision to the Colorado Supreme Court.

Justice Department Briefs Its Position On Merits In Both SCOTUS Same-Sex Marriage Cases

The U.S. Department of Justice has now filed briefs setting forth its arguments on the merits in the two same-sex marriage cases that will be argued before the Supreme Court later this month.  On Feb. 22, the Justice Department filed a merits brief (full text) in United States v. Windsor, the challenge to the constitutionality of the Defense of Marriage Act.  Yesterday the Justice Department filed an amicus brief (full text) with the U.S. Supreme Court in Hollingsworth v. Perry, the federal equal protection challenge to California's Proposition 8. In both cases, the Justice Department argued that classifications based on sexual orientation should, when challenged under the Equal Protection Clause, be subject to heightened scrutiny. In its Hollingsworth brief, DOJ stated directly that: "The President and Attorney General have determined that classifications based on sexual orientation should be subject to heightened scrutiny for equal protection purposes."

In its Windsor brief, DOJ argued rather straight forwardly that Section 3 of DOMA fails heightened scrutiny. In its Hollingsworth brief, however, the Department of Justice took a more complicated position.  As discussed by Lyle Denniston at SCOTUS Blog, DOJ took the position that California's Proposition 8 fails the heightened scrutiny test, but in an argument that stops short of contending that the U.S. Constitution requires all states to recognize same-sex marriage.  DOJ reasoned that California does not substantially further any important governmental interest by barring same-sex marriage since it already gives same-sex couples the right to enter domestic partnerships that confer all the same rights as marriage.  This argument would apply only to the 8 states that have granted domestic partners or those who have entered civil unions rights equal to those of married couples.

Court Refuses TRO Against Contraceptive Coverage Mandate In Challenge By For-Profit Senior Care Companies

In Briscoe v. Sebelius, (D CO, Feb. 27, 2013), a Colorado federal district court refused to grant a temporary restraining order to a for-profit corporation, two related for-profit LLCs and their evangelical Christian owner who were challenging the application of the Affordable Care Act contraceptive coverage mandate to them. The companies manage and operate senior care assisted living centers and skilled nursing facilities, and offer a self-insurance plan to their over 200 employees. Business owner Stephen Briscoe Briscoe says that his religious beliefs prevent him from including coverage for contraceptives, abortifacients, and sterilization procedures in his companies' insurance plans. The court concluded that plaintiffs' had not shown a substantial likelihood of success on the merits of their claims.

Rejecting plaintiffs' claim under the Religious Freedom Restoration Act, the court held that "secular, for-profit corporations neither exercise nor practice religion." It went on to reject the claim that the mandate imposes a substantial burden on the business owner's practice of religion:

Briscoe claims a substantial burden based on what his companies must do, rather than what he himself must do. The AHCA’s mandate does not prevent Briscoe from personally exercising his religion....  [A]ny burden Briscoe claims on his ability to exercise his religion based on his companies’ compliance with the AHCA mandate, is slight and attenuated. Further, Briscoe’s argument implicitly requests that I disregard the distinction between a corporation and its officers and owners. Briscoe cannot use corporate status to shield himself from liability and at the same use it as a sword to assert an RFRA claim.

The court also rejected plaintiffs' 1st Amendment free exercise, free speech and Establishment Clause challenges.

Texas Diocese's Challenge To Contraceptive Coverage Mandate Dismissed On Ripeness Grounds

In Roman Catholic Diocese of Dallas v. Sebelius, (ND TX, Feb. 26, 2013), a Texas federal district court dismissed on ripeness grounds a challenge by the Catholic Diocese of Dallas to the contraceptive coverage mandate under the Affordable Care Act. The court held that while plaintiff at the time of filing the lawsuit faced sufficiently imminent injury to have standing, subsequent developments require a dismissal for lack of ripeness. The government's Feb. 2013 Notice of Proposed Rulemaking undermine a realistic and pragmatic consideration of the issue at this time.

Canadian Supreme Court Upholds Key Part of Saskatchewan's Hate Speech Law

In Saskatchewan Human Rights Commission v. Whatcott, (Sup. Ct. Canada, Feb. 27, 2013), the Supreme Court of Canada, in a 116-page opinion, upheld the constitutionality of a key provision in the Saskatchewan Human Rights Code, Sec. 14.  However it invalidated a portion of the statute's language.  At issue in the case were 4 flyers critical of homosexuality published and  distributed by William Whatcott. The Supreme Court concluded that 2 of the flyers violated the Saskatchewan ban, while two other flyers did not.

Sec. 14 in part bars publication of any statement

that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

The court held that while this provision imposes limitations on freedom of expression and conscience, the limitations are permissible under Sec. 1 of the Charter of Rights and Freedoms that allows "reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." The Court said in part:

[H]ate speech seeks to delegitimize group members in the eyes of the majority, reducing their social standing and acceptance within society.... Hate speech lays the groundwork for later, broad attacks on vulnerable groups that can range from discrimination, to ostracism, segregation, deportation, violence and, in the most extreme cases, to genocide. Hate speech also impacts on a protected group’s ability to respond to the substantive ideas under debate, thereby placing a serious barrier to their full participation in our democracy....

The societal harm flowing from hate speech must be assessed as objectively as possible and the focus must be on the likely effect of the hate speech on how individuals external to the group might reconsider the social standing of the group. Section 14(1)(b) of the Code reflects this approach. The prohibition only prohibits public communication of hate speech; it does not restrict hateful expression in private communications between individuals....

The fact that s. 14(1)(b) of the Code does not require intent by the publisher or proof of harm, or provide for any defences does not make it overbroad.... [T]he preventive measures found in human rights legislation reasonably centre on effects, rather than intent.

However, the court found that some of the prohibitions in Sec. 14 go too far:

[E]xpression that “ridicules, belittles or otherwise affronts the dignity of” does not rise to the level of ardent and extreme feelings constituting hatred required to uphold the constitutionality of a prohibition of expression in human rights legislation. Accordingly, those words in s. 14(1)(b) of the Code ... unjustifiably infringe freedom of expression.... and must be struck from s. 14(1)(b)....

 The Globe and Mail and AFP report on the decision.

Dutch Court Upholds Fine On Orthodox Jew For Failing To Carry ID On Sabbath

AP reported Tuesday that in the Netherlands, an appeals court held that a 2005 law which makes it mandatory to carry an identification card and show it to police on request does not exempt individuals who fail to carry the ID card for religious reasons. The Hague Appeals Court upheld a 60 Euro fine imposed on an Orthodox Jewish man who could not produce the ID card for police on the Sabbath because it was against his religious beliefs to carry anything on the Sabbath. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Ohio High Court Hears Oral Arguments On Fired Science Teacher's Rights

The Ohio Supreme Court yesterday heard oral arguments (video of full arguments) in Freshwater v. Mount Vernon City School District Board of Education.  In the case, a state appeals court upheld the firing of John Freshwater, a middle school school science teacher. The school board based the firing on Freshwater's injecting his religious views, including belief in Creationism, into the classroom and for insubordination in failing to remove certain religious materials from the classroom after being ordered to do so by the school board. (See prior posting.) The oral argument preview posted by the Ohio Supreme Court describes the question at issue as follows:

Did the firing of a public school teacher for violating a school district policy that prohibits teachers from distributing extracurricular materials of a religious nature to students in the classroom or endorsing the beliefs or principles of any religion in the course of instructing students violate the teacher’s right to freedom of speech and freedom of religion under the First Amendment of the U.S. Constitution?

AP and the Columbus Dispatch, reporting on yesterday's oral arguments, said that the Justices particularly questioned David Kane Smith, attorney for the school's insurance company, who argued the case for the school board.

4th Circuit Upholds Regulation of Fortune Tellers Over 1st Amendment Objections

In Moore-King v. County of Chesterfield, Virginia, (4th Cir., Feb. 26, 2013), the U.S. 4th Circuit Court of Appeals upheld against various constitutional challenges a Virginia county's regulation of fortune tellers. The regulations require fortune tellers to obtain a license and business permit, and to obtain a conditional use permit in order to locate their business in specifically zoned areas.  The court held that while the 1st Amendment's free speech clause gives some protection to fortune telling, here the county has merely enacted a generally applicable licensing and regulatory scheme regulating professional speech. The court also rejected the argument that the regulation infringes the free exercise of religion in violation of the 1st Amendment and RLUIPA.  It concluded that the beliefs of the "spiritual counselor" here challenging the regulation are "personal and philosophical choices consistent with a way of life," and are "not deep religious convictions shared by an organized group deserving of constitutional solicitude." Finally the court rejected plaintiff's equal protection challenge to the regulatory scheme. AP reports on the decision. (See prior related posting.)

Australia's Top Court Upholds Permit Requirement For Preaching On Streets

Yesterday the High Court of Australia, the country's supreme court, upheld a By-Law of the city of Adelaide that requires the obtaining of a permit in order to "preach, canvass, harangue, tout for business or conduct any survey or opinion poll" on any public or private street. The by-law was challenged by two street preachers.  In Attorney-General (SA) v Corporation of the City of Adelaide, (HCA, Feb. 27, 2013), Justice Hayne, writing one of the opinions upholding the By-Law, said:

... [T]he concern of those who must decide whether to grant or withhold consent is confined to the practical question of whether the grant of permission will likely create an unacceptable obstruction of the road in question.  Once that is understood, it is readily evident that the impugned provisions are reasonably appropriate and adapted to prevent obstruction of roads in a manner which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government.... 

The Australian reporting on the decision gives additional background on events that led to the case:

In September 2010, the preachers - who are not affiliated with any church - were banned from holding their self-described "prayer meetings" in the mall. Retailers and shoppers had complained their preaching - done through amplifiers and megaphones - was "xenophobic, homophobic and sexist". They claimed the group "shout and scream slanderous" comments including "Muslims are dirty" and "you are all sinners who will be killed by God". Adelaide City Council claimed it had the power to exclude them from the Mall under a bylaw governing the proper use of roadways.

Milwaukee Mexican Festival Agrees To End Ticket Discount For Mass Attendees

Each year, the Wisconsin Hispanic Scholarship Foundation sponsors a festival, Mexican Fiesta, at Milwaukee's Sumerfest Grounds. As reported by WITI News, in past years the Fiesta offered a steeply discounted admission price to individuals who attended a Catholic Mass held on the festival grounds prior to the opening of the festival. Last year the Freedom From Religion Foundation objected, arguing that this amounts to preferential treatment in public accommodations on the basis of creed-- a violation of Wis. Stat. 106.52(3)(a)(2). It filed a complaint with the state Equal Rights Division. Now the festival has agreed to a settlement in the case including an agreement that "future Mexican Fiesta promotions will not be timed to coincide with times of entry or exit of the annual Mass."

Group Wins Settlement In Suit Alleging Discrimination Against Nonbelievers

The Center For Inquiry (CFI) announced yesterday that it has successfully settled a religious discrimination and breach of contract lawsuit it brought last year against a Michigan country club.  The Wyndgate Country Club of Rochester Hills, Michigan cancelled its contract for CFI to hold a dinner at the country club after the club learned that the speaker for the event was famous atheist Richard Dawkins.  The club justified the cancellation by saying "the owner does not wish to associate with certain individuals and philosophies." (See prior posting.) CFI says that this may be the first time federal and state laws barring religious discrimination in public accommodations have been successfully invoked by nonbelievers.

Indian Court Says Child Marriage Ban Overrides Muslim Personal Law

Times of India reports that yesterday the high court in the Indian state of Karnataka has ruled that the Prohibition of Child Marriage Act which sets the minimum age for marriage at 18 overrides provisions of the Muslim Personal Law.  The court dismissed a petition filed on behalf of a 17-year old Muslim girl who claimed that the Prohibition of Child Marriage Act is not applicable to Muslims because Muslim Personal Law permits marriage of a girl after she has attained puberty.

Hungary's Constitutional Court Invalidates Law On Status of Religious Communities

AP reports that on Tuesday, Hungary's Constitutional Court struck down the country's law on the Legal Status of Churches, Denominations and Religious Communities that was passed by the National Assembly (Hungary's parliament) at the end of December 2011 (see prior posting). The law recognized only 14 "traditional" religious faiths instead of the 300 that had previously been recognized.  Faiths not specified in the new law were permitted to apply to parliament for recognition if they had been operating in Hungary for at least 20 years. The law was designed to prevent groups that do not carry out religious activities from taking advantage of tax benefits and support granted to churches.

In this week's decision (full text in Hungarian), the Constitutional Court struck down the law because parliamentary decisions on recognition cannot be appealed, no written justification for refusing recognition is called for, and the process lends itself to political influence. However this invalidation may be short-lived. The government coalition led by Prime Minister Viktor Orban's Fidesz party is proposing amendments to Hungary's 2011 Basic Law, the country's constitution.  One of these would explicitly permit the National Assembly to decide which churches are to be officially recognized.  Also many of the groups denied recognition under the 2011 law have by now disappeared or converted themselves into associations.

6th Circuit: City Not Required To Add "Winter Solstice" Sign To Holiday Display

In Freedom From Religion Foundation, Inc. v. City of Warren, Michigan, (6th Cir., Feb. 25, 2013), the U.S. 6th Circuit Court of Appeals upheld a holiday display put up by the city of Warren, Michigan in its civic center. The court held that the display-- which included a lighted tree, reindeer, snowmen, a "Winter Welcome" sign and a nativity scene-- does not offend the Establishment Clause. It also held that the city was not required to include near the display a Winter Solstice sign composed by the Freedom From Religion Foundation. The sign included language calling religion "myth and superstition." The court said:

The short answer to the Foundation’s Winter Solstice request was that the Supreme Court has long permitted exhibits like the Warren holiday display, and the Establishment Clause does not convert these displays into a seasonal public forum, requiring governments to add all comers to the mix and creating a poison pill for even the most secular displays in the process.

The court also concluded that the mayor's letter rejecting FFRF's request, despite some questionable statements in it, did not turn the city's holiday display into an impermissible establishment of religion.

Finally, the court emphasized the the holiday display involved is "quintessentially government speech." Quoting the 9th Circuit, it added: "Simply because the government opens its mouth to speak does not give every outside individual or group a First Amendment right to play ventriloquist."  The Detroit Free Press reports on the decision.

3 Abuse Suits Filed Against Catholic Diocese and Order After Priest Commits Suicide

WKBN News reported yesterday on the third lawsuit growing out of sexual abuse of teenage boys by Franciscan Brother Stephen Baker at Catholic high schools in Warren, Ohio and Johnstown, Pennsylvania. Baker had been placed under supervision in a monastery in 2000 when complaints against him were first raised.  Last month, Baker committed suicide, leaving notes apologizing for his actions. Charges against Baker became widely known last month after a Boston attorney announced a settlement on behalf of 11 victims. The settlement was paid by the Third Order Regular Franciscans and the Youngstown Catholic Diocese. There followed three lawsuits filed in Pennsylvania state court against the Franciscans and the Johnstown-Altoona Catholic Diocese.  Baker allegedly used his position as athletic trainer to give teenage boys massages that included fondling their genitals and digitally penetrating them. Last week, the Youngstown diocese announced it had written 1200 adults who were students during the years that Baker taught in diocese schools, asking them to come forward with any other charges against Baker.

Ultra-Orthodox Jewish Schools Seeking Religious Accommodations In Complying With Federal School Nutrition Rules

The Forward reported yesterday on the unique problems of religious accommodation in complying with the federal Healthy, Hunger-Free Kids Act of 2010 faced by ultra-Orthodox Jewish schools. Under the Act and implementing regulations, federal assistance for a school's food program is available only if the school's menus meet specified nutritional guidelines.  Orthodox Jewish schools have encountered two issues, only one of which has been resolved so far. First, government standards limited the amount of  grain-based food that could be served.  Orthodox Jewish students needed a slice of bread in order to say the traditional Hamotzi-- the blessing over bread with which each meal is begun. That left no room for other grain-based foods. USDA officials agreed that schools could increase the amount of grain consumption, so long as it stayed within the calorie limit set out in USDA regulations.

The second issue involves the requirement to serve leafy dark-green vegetables as part of school meals. Ultra-Orthodox standards for kosher observance require special inspection of leafy vegetables to be sure that they are not insect infested. This would pose prohibitive costs on schools, and if they did not provide for inspection parents would advise their children not to eat the vegetables.  The schools are consulting with a nutritionist to attempt to find equally nutritious alternatives.

Scottish Cardinal Resigns Amid Charges Of Inappropriate Sexual Behavior

Vatican Radio this morning announced that Pope Benedict XVI has accepted the resignation of Scotland's Cardinal Kieth O'Brien. The resignation follows a report Saturday in The Observer that 3 priests and a former priest have charged O'Brien with "inappropriate behavior" involving inappropriate contacts, beginning in the 1980's. According to The Observer:

The four, from the diocese of St Andrews and Edinburgh, have complained to nuncio Antonio Mennini, the Vatican's ambassador to Britain, and demanded O'Brien's immediate resignation. A spokesman for the cardinal said that the claims were contested.

O'Brien, who is due to retire next month, has been an outspoken opponent of gay rights, condemning homosexuality as immoral, opposing gay adoption, and most recently arguing that same-sex marriages would be "harmful to the physical, mental and spiritual well-being of those involved". Last year he was named "bigot of the year" by the gay rights charity Stonewall.

According to the New York Times, a statement issued by the Diocese of Edinburgh on O'Brien's behalf yesterday said: "A number of allegations of inappropriate behavior have been made against the cardinal The cardinal has sought legal advice, and it would be inappropriate to comment at this time. There will be further statements in due course."

In Australia, Parliament Debates Scope of Religious Exemptions In Proposed Anti-Discrimination Law Revisions

The Australian reported last week on the controversy over the scope of exemptions for religious organizations in proposed Australian civil rights legislation.  Labor proposed a bill-- the Human Rights and Anti-Discrimination Bill 2012-- to consolidate Australia's five existing anti-discrimination laws. Under the proposal, exemptions for religious organizations were to be largely retained, except for government-funded providers of care for the elderly where there is concern about discrimination against same-sex couples seeking to enter care facilities.  However the Senate Legal and Constitutional Affairs Legislation Committee in a report released Feb 21 (full text) has recommended much narrower religious exemptions in the new law. (Full text of recommendations).  Opposition members of the Senate in turn, concerned about protecting Church schools, called on the Attorney General to retain current exemptions in the new law.

German Prosecutor Drops Circumcision Prosecution of Rabbi

Applying Germany's new law enacted in December to confirm the legality of religious circumcisions performed with parental consent by specially trained members of the religious community, a court in the German city of Hof has dismissed charges that had been filed last year against a rabbi.  According to the European Jewish Congress, the criminal charges were dropped last Thursday by the prosecutor who said that Rabbi David Goldberg has satisfied all the requirements of the new law.

Recent Articles of Interest

From SSRN:

• Stuart Vincent Campbell, Brazil, Blasphemy, and Free Speech: Why the US Must Maintain Strong Freedom of Expression Protections in Spite of International Pressure to Punish Anti-Religious Hate Speech, (December 15, 2012).
• John Lunstroth, On Stanford Law’s Religious Liberty Clinic and Ideology, (U of Houston Law Center No. 2013-W-1 (Jan. 29, 2013)).
• Moeen Hayat Cheema, Beyond Beliefs: Deconstructing the Dominant Narratives of the Islamization of Pakistan's Law, (The American Journal of Comparative Law, Vol. 60, No. 4, 2012).
• Mathilda McGee-Tubb, Standing a Little Bit Above the Rest: Establishment Clause Enforcement & Taxpayer Standing after Winn, (January 10, 2012).
• Renée Mirkes and Edward A. Morse, Conscience and Competing Liberty Claims, (Ethics & Medicine: An International Journal of Bioethics, Vol. 29, No. 1, pp. 23-29, Spring 2013).
• Christopher McCrudden, In Pursuit of Human Dignity: An Introduction to Current Debates, (Understanding Human Dignity, Proceedings of the British Academy/Oxford University Press, Forthcoming).
• Alan E. Brownstein, Protecting the Religious Liberty of Religious Institutions, (Journal of Contemporary Legal issues, Forthcoming).
• Sahar F. Aziz, Policing Terrorists in the Community, (February 21, 2013).
• Jeff Redding, Secularism, the Rule of Law, and 'Shari‘a Courts’: An Ethnographic Examination of a Constitutional Controversy, (57 St. Louis U. L.J. __ (2013)).
• Susannah William Pollvogt, Animus and Marriage Equality, (February 21, 2013).
• Aziza Ahmed, No Way Out: The Dual Subordination of Muslim Women in Indian Legal Culture, (Self-Determination and Women's Rights in Muslim Societies, Chitra Raghavan, James P. Levine, eds., Brandeis University Press, 2012).

From SmartCILP:

• Rev. Joseph E. Bush, Keeping Faith in Community: A Pastoral Response and Ethical Argument, 10 Ohio State Journal of Criminal Law 181-190 (2012).

Recent Prisoner Free Exercise Cases

In Abel v. Martel, 2013 U.S. Dist. LEXIS 19638 (ED CA, Feb. 13, 2013), a California federal magistrate judge recommended dismissing plaintiff's complaint that his rights were violated when authorities denied him the ability to purchase and personally possess certain religious items approved for group use by Wiccans, and when they confiscated and destroyed several of his religious items including ceremonial wands, a crystal and chalices.

In Shoemaker v. Williams, 2013 U.S. Dist. LEXIS 19641 (D OR, Feb. 11, 2013), an Oregon federal district court rejected a Muslim inmate's claim that his rights were violated when the halal meals he was served only contained meat on two Islamic holidays per year. The remainder of the time they were only vegetarian or fish meals. Prepackaged halal meat meals could be purchased from the commissary.

In Anderson v. Rettke, 2013 U.S. Dist. LEXIS 17793 (D MN, Feb. 11, 2013), a Minnesota federal district court adopted a magistrate's recommendations (2013 U.S. Dist. LEXIS 18745, Jan 2, 2013) and dismissed a jail inmate's complaint that he was not permitted to conduct a Native American pipe ceremony. Authorities said it would create a safety hazard from smoke and fire.

In Gutman v. Wrigglesworth, 2013 U.S. Dist. LEXIS 18350 (WD MI, Feb. 12, 2013), a Michigan federal district court adopted a magistrate's recommendations (2012 U.S. Dist. LEXIS 185987, Oct. 9, 2012) and dismissed a Jewish inmate's complaint regarding access to and removal from a kosher diet, his claim that he was not informed of the rules regarding participation in a kosher diet, and his allegation that he was not permitted to possess certain religious items.

In Shabazz v. Parris, 2013 U.S. Dist. LEXIS 20264 (CD CA, Feb. 13, 2013), a California federal magistrate judge dismissed, with leave to amend, an inmate's conclusory free exercise allegations where the only facts alleged were that he is Muslim and the arresting officer used a religious epithet.

In Jouvert v. New York State, 2013 U.S. Dist. LEXIS 11509 (ND NY, Jan. 29, 2013), a New York federal district court agreed with a magistrate's recommendation (2012 U.S. Dist. LEXIS 186103, Oct. 23, 2012) and dismissed a former inmate's claim that he was denied participation in Islamic classes, Islamic Friday services, and the 2009 Ramadan fast.

In Shannon v. Nero, 2013 U.S. Dist. LEXIS 21029  (D MD, Feb. 8, 2013), a Maryland federal district court dismissed an inmate's complaint that while he was confined to administrative segregation he could not attend monthly Jewish religious services, and rejected his claim that he was denied kosher meals.

In Owens v. Beckley, 2013 U.S. Dist. LEXIS 22223 (SD WV, Feb. 19, 2013), a West Virginia federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22225, Jan. 31, 2013) and refused to issue a preliminary injunction sought by plaintiff who wanted authorities to treat New Age Druidry as a separate religion and provide means to practice it, rather than dealing with it as an aspect of the Wiccan program.  Plaintiff also sought to prevent officers from retaliating against him and others, claiming that an officer had raided the Wiccan locker and seized a book and a cord.

In Martin v. Lee, 2013 U.S. Dist. LEXIS 22459 (WD LA, Feb. 14, 2013), a Louisiana federal district court adopted a magistrate's recommendation (2013 U.S. Dist. LEXIS 22461, Jan. 17, 2013) and dismissed a Muslim inmate's complaint that his right to participate in Friday Jumah services has been curtailed and that he is being served food that may contain pork products.

Factual Issue Remains In Establishment Clause Challenge To School Board's Outsourcing

In Kucera v. Jefferson County Board of School Commissioners, (ED TN,  Feb. 21, 2013), a Tennessee federal district court allowed two plaintiffs-- a former teacher and the former principal in an alternative school-- to proceed with their claims that a Tennessee school district violated the Establishment Clause when it closed the alternative school in which they were employed and contracted with Kingswood Academy, a Christian school, to provide alternative school services.  In denying defendants' motion for summary judgment, the court said that there remains an issue of fact as to whether or not the alternative day program offered by Kingswood is religious in nature in the same way its residential program is. (See prior related posting.)

Israel's Haredi Religious Parties Fear Loss of Influence In New Government

In an article titled Haredi Power on the Brink, The Forward yesterday reported the two largest Israeli religious parties representing the ultra-Orthodox ("Haredi") Jewish community are now seriously concerned about the continuation of their political power.  The results of the recent election for members of Israel's Knesset have left the two parties-- United Torah Judaism and Shas-- facing the possibility of a government coalition that could threaten the continuation of military draft exemptions for yeshiva students and large amounts of government financial support for yeshivas (religious schools).  According to the Forward, the most significant "sign of panic" from the two Haredi  parties that fear being left out of the ruling coalition is their courting of their traditional opponent-- the Modern Orthodox Religious Zionist party, Jewish Home-- which may become part of the governing coalition. (See prior related posting.)

Vatican Says Media Publishing Embarrassing Stories To Affect Papal Election

According to Thursday's Irish Times (quoting the Italian daily La Repubblica), Pope Benedict’s recent resignation was partly impelled by a damaging report commissioned at Benedict’s direction after the leaking of confidential Vatican documents last year by the Pope's butler. Prepared by 3 senior cardinals --Julian Herranz, Josef Tomko and Salvatore De Giorgi-- the report reportedly concludes that various lobbies, including a gay lobby, exercise improper influence in Vatican affairs. According to La Repubblica, the lobbies were involved in adultery and in stealing relating to the Vatican Bank. In an unusual statement today (full text) the Vatican Secretary of State reacted to the press reports, characterizing them as attempts to influence the selection of the next Pope.  The statement says in part:

Over the course of the centuries, Cardinals have had to face many forms of pressures, exerted upon individual electors or upon the College of Cardinals itself....  If in the past ... States, sought to influence the election of the Pope, today there is an attempt to do this through public opinion....  It is deplorable that, as we draw closer to the moment that the Conclave will begin ... there is a widespread distribution of often unverified, unverifiable, or even completely false news stories that cause serious damage to persons and institutions.

9th Circuit: Inmates State Plausible Establishment Clause Objection To Refusal To Hire Wiccan Chaplain

In Hartmann v. California Department of Corrections and Rehabilitation, (9th Cir.,  Feb. 19, 2013), the U.S. 9th Circuit Court of Appeals held that Wiccan inmates had plead sufficient facts to move forward with plausible state and federal Establishment Clause objections to the California prison system's refusal to hire a Wiccan chaplain. California prisons employ Catholic, Jewish, Muslim, Native American, and Protestant chaplains. Prisoners of other faiths must rely on these chaplains, or on volunteer chaplains. Plaintiffs claim that the state does not apply "neutral, equitable, and unbiased criteria" to determine chaplain hiring needs or other religious accommodations, and assert that the state's chaplain-hiring policy "constitutes an unconstitutional endorsement of one religion over another." The court affirmed the dismissal of plaintiffs' free exercise, RLUIPA and equal protection claims. AP reports on the decision.

Amish Convicted In Assaults On Rivals Appeal Convictions

Yesterday AP reported that all 16 of the members of the Bergholz Amish sect who were convicted last September in a series of beard- and hair-cutting assaults on a rival Amish group have appealed their federal hate-crimes and conspiracy convictions to the U.S. 6th Circuit Court of Appeals. Earlier this month, the group's leader Samuel Mullet received a 15 year sentence, while other defendants received sentences ranging from 7 years to just over one year.

Egypt's High Administrative Court OK's Police Wearing Beards

According to Middle East Online, Egypt's High Administrative Court on Wednesday ruled that members of Egypt's police force may grow beards. Under now-ousted President Hosni Mubarak, as a method of opposing Islamist forces informal rules barred police and senior government officials from wearing beards.   Christians and the liberal opposition to the Muslim Brotherhood may see this week's Court's ruling as an invitation to Islamists to further press their practices on Egyptian society.

Couple Denied Utilities May Pursue Religious Discrimination Claim Against FLDS Town

In Cooke v. Town of Colorado City, Arizona, (D AZ, Feb. 13, 2013), an Arizona federal district court, while dismissing some of plaintiffs' causes of action, permitted them to move ahead with their claims that Colorado City, Arizona and two utility companies discriminated against them on the basis of religion. Plaintiffs, husband and wife, allege they were denied utility connections for their home because they are not members of the locally dominant Fundamentalist Church of Jesus Christ of Latter Day Saints. The husband was a former FLDS member.  The court held that plaintiffs may move ahead with their claims under the Federal and Arizona Fair Housing Acts and Arizona anti-discrimination laws. KUTV News reports on the decision.

Split 5th Circuit Denies En Banc Review In Prisoner Kosher Food Case

By a vote of 8-7, the U.S. 5th Circuit Court of Appeals in Moussazadeh v.Texas Department of Criminal Justice, (5th Cir., Feb. 20, 2013), denied en banc review to the Texas prison system which had refused to fully accommodate a Jewish prisoner's request for kosher food.  A 3-judge panel, in a 2-1 decision, held that charging plaintiff for his kosher food, while it was available at a different facility without cost to prisoners, imposes a substantial burden on religious exercise. The panel remanded plaintiff's RLUIPA claim for determination as to compelling interest and least restrictive means. (See prior posting.) Judge Jolly wrote a dissent to the denial of en banc review, warning that "we should not be blind to the misuse of RLUIPA in the prison setting." He explained:

this appeal involves the Texas Department of Criminal Justice’s (“TDCJ”) efforts to accommodate the religious practice of keeping kosher of roughly 900 Jewish prisoners among an inmate population greater than 140,000; TDCJ’s establishment of a “Jewish prison unit” with a kosher kitchen; a single Jewish prisoner, Moussazadeh, whose demands were thus accommodated, even though they were not required to be by any court decision; major disciplinary infractions – committed by Moussazadeh – that required his transfer to a more secure prison that did not have a kosher kitchen but nonetheless offered vegetarian and non-pork options and where pre-packaged kosher food in the more secure prison’s commissary was available for purchase; and, finally, the demands of Moussazadeh to be served kosher food, necessarily prepared by a kosher kitchen at the secured facility, even when he later had the option of being transferred back to the Jewish prison....

[Thanks to Howard Bashman for the lead.] 

Lumbees Not Included In DOJ's Non-Prosecution Policy On Eagle Feathers

As previously reported, last October the Justice Department formalized a non-prosecution policy that allows members of federally recognized Indian tribes to possess and use eagle and other protected bird feathers for religious and cultural purposes. Earlier this week, McClatchy Newspapers reported on the problems that still remain for the Lumbee Indians of North Carolina who are not a federally recognized tribe. Their possession of eagle feathers remains illegal, as does that by other unrecognized tribes.  The Lumbees have tried unsuccessfully over the years to obtain federal recognition

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.)