Supreme Court Denies Review In Challenge To Ban On Pro-Life Picketers' "Gruesome Images"

The U.S. Supreme Court today denied certiorari in Scott v. Saint John’s Church in the Wilderness, (Docket No. 12-1077, cert. denied 6/10/2013). (Order List.) In the case, a Colorado appeals court enjoined anti-abortion protesters who were picketing a church they believed had gone astray from displaying gruesome images of mutilated fetuses or dead bodies in a manner reasonably likely to be viewed by children. (See prior posting.) The case has received a good deal of attention in the blogosphere, particularly through postings by Eugene Volokh who represented petitioners.

Organization of American States Adopts Two Human Rights Conventions; U.S. Has Objections

Merco Press reports that the General Assembly of the Organization of American States meeting last week in Guatemala adopted two human rights conventions-- the Inter-American Convention against Racism, Racial Discrimination, and Related Forms of Intolerance and the Inter-American Convention against All Forms of Discrimination and Intolerance. According to JTA, at a ceremony on Saturday, six countries signed the new conventions-- Argentina, Antigua and Barbuda, Brazil, Costa Rica, Ecuador and Uruguay.

The new Convention Against All Forms of Discrimination and Intolerance contains a broad definition of prohibited discrimination (Art. 1):

Discrimination may be based on nationality; age; sex; sexual orientation; gender identity and expression; language; religion; cultural identity; political opinions or opinions of any kind; social origin; socioeconomic status; educational level; migrant, refugee, repatriate, stateless or internally displaced status; disability; genetic trait; mental or physical health condition, including infectious-contagious condition and debilitating psychological condition; or any other condition.

The introductory language of the Convention proclaims that parties to it are "disturbed by ... a general increase in cases of intolerance and violence motivated by anti-Semitism, Christianophobia, or Islamophobia, and that directed against members of other religious communities, including those with African roots."  It goes on to recognize "that peaceful coexistence among religions in pluralistic societies and democratic states is based on respect for equality and nondiscrimination among religions and on a clear separation between the laws of the state and religious tenets."

Under Art. 4, states agree to  prevent and prohibit "publication, circulation or dissemination, by any form and/or means of communication, including the Internet, of any materials that advocate, promote, or incite hatred, discrimination, and intolerance."

Footnotes to both Conventions (which continue at the end of the respective documents) indicate that the United States has reservations. The U.S.states in part:

The United States believes that what is needed in this area are enhanced measures and efforts to implement existing human rights instruments, not the adoption of new instruments.  Additionally, we are concerned that some provisions of the draft conventions could undermine or are incompatible with international human rights law protections including those related to freedoms of expression and association.

At the Guatemala meetings, officers of the Inter-American Commission on Human Rights were also elected. (OAS press release). Winning candidates were Jose de Jesús Orozco (Mexico) who was reelected, Stanford Law Professor James L. Cavallaro (United States) and Paulo De Tarso Vannuchi (Brazil). Here is the U.S. State Department's press release on the OAS meetings.

Recent Articles of Interest

From SSRN:

• Daniel Golebiewski, Because the Bible Says So: The Impact of Roman Catholic Doctrines on LGBT Rights, (May 1, 2013).
• Pasquale Annicchino, The Conflict between the Autonomy of Religious Groups and Other Fundamental Rights: Recent Decisions of the U.S. Supreme Court and of the European Court of Human Rights, (Quaderni di Diritto e Politica Ecclesiastica 1, 2013).
• Peter G. Danchin, The Politics of Religious Establishment: Recognition of Muslim Marriages in South Africa, (in "Varieties of Religious Establishment" ed. Winnifred Fallers Sullivan and Lori G. Beaman (Farnham, Ashgate, 2013)).
• Alina Ng, Finding Copyright's Core Content, (University of St. Thomas Law Journal, Forthcoming).
• Michael J. Perry, The Morality of Human Rights, (June 4, 2013).
• Hdeel Abdelhady, Islamic Finance as a Mechanism for Bolstering Food Security in the Middle East: Food Security WAQF, (Sustainable Development Law & Policy 13, no. 1 (2012): 29-35, 63-65).
• Roger Colinvaux, Charitable Contributions of Property: A Broken System Reimagined, (Harvard Journal on Legislation, Vol. 50, No. 263, 2013).

From SmartCILP:

• Maarsha B. Freeman, What's Religion Got To Do With It? Virtually Nothing: Hosanna-Tabor and the Unbridled Power of the Ministerial Exemption, [Abstract], 16 University of Pennsylvania Journal of Law & Social Change 133-149 (2013).
• Richard W. Garnett, The Story of Kedroff v. St. Nicholas Cathedral [Includes photographs], [Abstract], 38 Journal of Supreme Court History 80-93 (2013). 
• Douglas Laycock, Edward Schempp and His Family [Includes photographs], [Abstract], 38 Journal of Supreme Court History 63-79 (2013).
• Raymond C. O'Brien, Family Law's Challenge to Religious Liberty, 35 University of Arkansas Little Rock Law Review 3-88 (2012).
• Fatahillah Abdul Syukur & Dale Margaret Bagshaw. When Home Is No Longer "Sweet": Family Violence and Sharia Court-Annexed Mediation in Indonesia, 30 Conflict Resolution Quarterly 271-294 (2013).

In Israel, Women of the Wall Pray Without Interference Under Police Protection

Haaretz reports that this morning in Israel police enforced a Jerusalem district court order allowing "Women of the Wall" to pray in the main section of the Western Wall wearing prayer shawls and tefillin (phylacteries).  In the past, police enforced rules created by Orthodox Rabbi Shmuel Rabinowitz, the rabbi of the Western Wall, which barred women from wearing religious garb that in more traditional circles is worn only by men. (See prior posting.) But today the women prayed without interference.  The tens of thousands of Haredi (ultra-Orthodox) demonstrators who were supposed to show up to protest never materialized.  Only 200 unorganized demonstrators were present. Today's events lessen the pressure to implement a compromise plan developed by Jewish Agency Chairman Natan Sharansky to build a new third area at the Wall for egalitarian prayer.

British Soccer Team Faces Opposition From Player Over Wearing Shirt Advertising Payday Loan Sponsor

According to yesterday's Daily Mail, in Britain the Newcastle United soccer club is facing opposition from one of its star players over wearing a shirt displaying the name of the club's new sponsor, Wonga.com.  Senegalese football striker Papiss Cissé, who signed with the Newcastle Club for some £8 million, says it offends his Muslim beliefs to wear shirts advertising the payday loan company that entered a lucrative 4-year deal with Newcastle.  Sharia law prohibits Muslims from benefiting through lending money to others.  Wonga charges over 4000% interest on its short-term loans. Newcastle's options are allowing Cisse to wear an unbranded shirt during games, or selling Cisse to another team.

No Free Exercise Problem With Evidence of Defendant's Santa Muerte Necklace

In Batiste v. State of Texas, (TX Ct. Crim App., June 5, 2013), defendant who was convicted of capital murder and sentenced to death objected, among other things, to the introduction at the penalty phase of his trial of a Santa Muerte necklace he was wearing when arrested. Apparently drug traffickers pray to Santa Muerte to ward off the police when making a drug run. The court held that appellant had failed to object on any 1st Amendment religious ground to introduction of the evidence. It added in a lengthy footnote, however:

Even if appellant had objected on a First Amendment basis, claiming that the admission of the necklace infringed upon his right to his free exercise of religion, the trial judge would not have abused his discretion in overruling that objection. At no time did the prosecutor or the gang expert suggest that appellant's necklace had any significance to the exercise of a bona fide religion. Its established relevance in criminal trials is to criminal street gangs and their "worship" of "Santa Muerte" or "Saint Death" who has been described as "the drug trafficker's god" and is "used as a protector of drug traffickers.... "

Recent Prisoner Free Exercise Cases

In Ali v. Reilly, 2013 U.S. Dist. LEXIS 77549 (D NH, June 3, 2013), a New Hampshire federal magistrate judge recommended allowing a Muslim inmate to move ahead with a number of his claims alleging denial of access to Jum'ah services, denial of nutritious food during Ramadan and removal from the Ramadan list.

In Wood v. Michigan Department of Corrections, 2013 U.S. Dist. LEXIS 79310  (WD MI, June 6, 2013), a Michigan federal district court, while dismissing a number of plaintiff's claims, permitted a Muslim inmate to proceed on other of his claims against the Department of Corrections and the special activities coordinator seeking a halal diet, bagged meals during Muslim fast days, and the ability to possess religious property.

In Rodriguez v. Mims, 2013 U.S. Dist. LEXIS 79980 (ED CA, June 6, 2013), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed on his complaint against one defendant alleging that the jail in which he was previously held refused to provide him with a kosher diet.

In King v. Bosenko, 2013 U.S. Dist. LEXIS 80075 (ED CA, June 6, 2013), a California federal magistrate judge denied an inmate summary judgement, holding that his mere assertion that as a Buddhist he requires a vegetarian diet is not enough to establish as a matter of law that his beliefs are sincere and that vegetarianism is a tenet of his religion.

In Maloney v. Ryan, 2013 U.S. Dist. LEXIS 80410 (D AZ, June 6, 2013), an Arizona federal district court permitted a Muslim inmate to proceed on several related complaints about the prison's breakfast policy during Ramadan.

Canadian Terrorist Defendant Insists On Lawyer That Will Help Him Be Judged By the Qur'an

Today's Toronto Star reports on the difficulties faced by a Canadian justice of the peace in attempting to find a lawyer to defend accused terrorist Chiheb Esseghaier.  The defendant, a Tunisian national, is accused of taking part in a plot to derail a Toronto-bound passenger train.  Esseghaier insists that he will only accept a lawyer who will help him be judged by the Qur'an, rather than by the Canadian Criminal Code which he considers "a book written by humans." Recently a legal aid lawyer refused to take the case because of this demand.

County Commission Prayer Challenge Survives Legislative Immunity Defense

In Doe v. Franklin County, Missouri, (ED MO, June 7, 2013), plaintiff, who attended County Commission meetings, sued the county and Presiding Commissioner John Griesheimer who often opened Commission meetings with a Christian prayer, instead of with the scheduled moment of silence. The court fund that plaintiff has standing.  It then refused to dismiss the suit against Griesheimer on the basis of legislative immunity, finding that the content of the prayers involved did not relate to deliberating or passing any law-- a prerequisite for legislative immunity. The court held in abeyance defendants' motion to dismiss the suit as a political question until the U.S. Supreme Court decides a legislative prayer case on its docket for next term. (See prior posting.)

This Weekend Is Pulpit Freedom Sunday-- With Slightly Different Emphasis

This Sunday is Alliance Defending Freedom's 6th Annual Pulpit Freedom Sunday. According to an ADF press release,  almost 1,100 pastors in all 50 states plus the District of Columbia, Puerto Rico, and the U.S. Virgin Islands have registered to participate. Participants this year have agreed to preach sermons that present the biblical perspective on marriage as the union of one man and one woman.  The focus of this year's event is slightly different than in the past, lacking the previous years' avowed defiance of Internal Revenue Code restrictions on non-profits. (See prior posting.) ADF explains:

Since 2008, one of Pulpit Freedom Sunday’s aims has been to have the IRS rule known as the Johnson Amendment struck down as unconstitutional for its regulation of sermons, which are protected by the First Amendment. The primary focus, however, has been on encouraging pastors to exercise their First Amendment freedom to speak truth into every area of life from the pulpit.

Pro-Lifers Challenge Ordinance Barring Noise Around Health Care Facilities

A federal lawsuit was filed yesterday against the city of West Palm Beach, Florida by two anti-abortion activists challenging the city ordinance that prohibits shouting and all amplified sound within 100 feet of the property line of a property housing a health care facility.  The complaint (full text) in Pine v. City of West Palm Beach, Florida, (SD FL, filed 6/6/2013), alleges that plaintiffs, one of whom is the founder of a pro-life ministry, have for many years carried sings and used sound amplification devices at a West Palm Beach women's center that performs abortions. The suit alleges that the ordinance is an overbroad regulation of speech; that selective enforcement of it amounts to a viewpoint-based restriction; and that the ordinance and the application of it "substantially burden Plaintiffs' free exercise of their religious beliefs by prohibiting Plaintiffs from fulfilling their Biblical mandate to promulgate the Gospel of Jesus Christ and evangelize others." Liberty counsel issued a press release announcing the filing of the lawsuit.

Bangladesh Court Fines Muslim Clergy For Election Campaigning

According to bdnews24, in Bangladesh a "mobile court" has fined an imam and a moazzin (Muslim preacher) 10,000 Tk (equivalent of $128 US) for campaigning for a candidate in the upcoming Gazipur City Corporation elections. The judge involved told the press: "We got information that the duo had been campaigning for BNP-backed candidate Professor MA Mannan after Thursday’s Magrib prayers. We went to the spot and caught them in the act. They have been fined for breach of code of conducts."

Christian Employee Who Objects To Secular Counseling Loses Religious Accommodation Claim

In Valenzisi v. Stamford Board of Education, (D CT, June 5, 2013), a Connecticut federal district court dismissed a claim by high school math teacher challenging his termination on, among other grounds, Title VII and 1st Amendment claims of failure to accommodate his religious beliefs. Teacher Frank Valenzisi was required to obtain a "fit for duty" medical evaluation before he could resume teaching after claims of aggressive behavior, difficulty recognizing people and bizarre behavior in a meeting with the deputy superintendent.  Valenzisi objected to the requirement, and sued claiming that as a born-again bible-believing Christian he objected to secular counseling. The court held that there is a question of whether the fitness-for-duty evaluation involved secular counseling, but even if it did Valenzisi did not show that he had requested an accommodation from his employer.

High School Valedictorian Insists on Delivering Prayer

Christian Post reports on the June 3 graduation at Liberty High School in Pickens County, South Carolina.  Valedictorian Roy Costner IV tore up his pre-approved speech and instead, to the applause of many in attendance, recited the Lord's Prayer in full. YouTube has his speech.

FBI To Expand Religious Groups Covered By Hate Crime Reports

According to the Huffington Post, the FBI Advisory Policy Board yesterday approved a pending proposal to amend the standard hare crime incident reporting form so that police departments around the country track hate crimes against Sikhs, Hindus and Arabs. (See prior posting.) Currently the form tracks hate crimes motivated by religious animus against Jews, Catholics, Protestants, Muslims and atheists/agnostics. Subsequently yesterday an FBI spokesman announced that the FBI will go even further and will track hate crimes against "all self-identified religions in the United States as listed in the Pew Research Center’s Pew Forum on Religion and Public Life (2008) and the Statistical Abstract (2012) approved by the U.S. Census Bureau." That list includes: Catholic, Protestant, Mormon, Jehovah's Witness, Orthodox, Other Christian, Jewish, Islamic (Muslim), Buddhist, Hindu, Sikh, Other Religions, Multiple Religions-Group, and Atheism/Agnosticism. All of these changes must still be approved by FBI Director Robert Mueller.

Quebec Soccer Federation Bans Sikh Turbans; Federal Officials Criticize Move

In Canada, the Quebec Soccer Federation has created controversy by deciding last week end to uphold its ban on Sikh boys wearing turbans on the soccer fields.  The Montreal Gazette reported Tuesday:

Quebec referees began cracking down in the last year on turbans, patkas and keskis, the religious headgear worn by Sikh men and boys.

The weekend decision to uphold the ban occurred despite a directive from the Canadian Soccer Association in April, calling for provincial associations to allow them by extending an existing rule that allows Islamic hijabs for girls.

Quebec is the only province that has balked at the directive.

The Soccer Federation sent a memo (full text in French) to referees on Tuesday telling them that they are required to enforce the ban.  The Province reported yesterday that Canadian federal officials are strongly criticizing the turban ban.

UPDATE: RNS reports:

The Quebec Soccer Federation lifted the ban Saturday (June 15), a day after the Canadian Soccer Association sent out word that FIFA, the international governing body, approved the headgear. But allegations of religious intolerance and racism still linger.

UK Parliamentary Committee Report Urges Changes In Charities Act Definition of Religious Charity

In Britain yesterday, the House of Commons Public Administration Select Committee published a report titled The role of the Charity Commission and “public benefit”: Post-legislative scrutiny of the Charities Act 2006.  Britain's 2006 Charity Act requires that to qualify as a charity, an organization must not only be created to advance one of a set of specified purposes, such as "advancement of religion," but must also be "for the public benefit."  The Report says in part:

The Charity Commission... argued that there was a “lack of certainty as to the law relating to the public benefit requirement for the advancement of religion” since the passing of the Charities Act 2006. This lack of certainty, and the Commission’s interpretation of the Act, have led to the questioning of the charitable status of independent schools and the Plymouth Brethren Christian Church (or Exclusive Brethren) and concerns over the wider impact on faith charities.... 

We recommend that the removal of the presumption of public benefit in the 2006 Charities Act be repealed, along with the Charity Commission’s statutory public benefit objective. This would ensure that no transient Government could introduce what amounts to substantive changes in charity law without Parliament’s explicit consent. If the Government wishes there to be new conditions for what constitutes a charity and qualifies for tax relief, it should bring forward legislation, not leave it to the discretion of the Charity Commission and the courts.

Third Sector has additional information.

School Need Not Accommodate Teacher's Tuesday Sabbath

In Slocum v. Devezin, (ED LA, June 3, 2013), a Louisiana federal district court dismissed an elementary school teacher's Title VII religious accommodation lawsuit.  Special education teacher Joy Slocum wanted to take time off to observe her Sabbath from 10:00 a.m. on Tuesday until 10:00 a.m. on Wednesday each week. The school refused.  According to the court:

Accommodating Plaintiff's request to take off every Tuesday would require Defendants to hire a substitute teacher every week, or a part-time employee to cover every Tuesday, in addition to paying Plaintiff's salary, or perhaps would require her students to sit with another teacher's class – overloading the student-teacher ratio.... [O]bliging Plaintiff's request and accommodating her religious practices in this regard would require Defendants  to bear more than a de minimus cost, and as such would be an "undue hardship."

Louisiana Passes Bill Encouraging Student Use of School Space For Prayer

Last Saturday the Louisiana legislature gave final passage to HB 724 that encourages schools to allow students to use school space for prayer. The bill provides:

A. Upon the request of any public school student...  school authorities may permit students to gather for prayer in a classroom, auditorium, or other space that is not in use, at anytime before the school day begins when the school is open and students are allowed on campus, at any time after the school day ends provided that at least one student club or organization is meeting at that time, or at any noninstructional time during the school day. A school employee may be assigned to supervise the gathering if ... requested by the student ... and the school employee volunteers....

B. Any school employee may attend and participate in the gathering if it occurs before the employee's workday begins or after [it] ... ends.

C. Any parent may attend the gathering....

D. The students may invite persons from the community to attend and participate in the gathering if other school organizations ... are allowed to make similar invitations.

Wall of Separation blog sets out the concerns that American United have with the bill.

Missouri Governor Vetoes Anti-Foreign Law Bill

As reported by AP, yesterday Missouri Governor Jay Nixon vetoed (full text of veto message) S.B. No 267, the Civil Liberties Defense Act, which provided that any ruling by a court or tribunal will be void and unenforceable if it is based on any foreign law, legal code or system that is repugnant or inconsistent with the Missouri or U.S. constitutions. Bills such as this one are the outgrowth of earlier versions that were more explicitly directed at barring the application of Sharia law.  In vetoing the bill, the governor in part emphasized the problems that it would create with foreign adoptions by Missouri parents. Explaining his veto during a visit to a children's services agency, Nixon said:

This legislation seeks to solve a problem that does not exist, while creating the very real problem of jeopardizing Missouri's families' ability to adopt children from foreign countries.