In Criminal Trial of Palestinian, Jewish Judge Recuses Himself On New Grounds

In Detroit yesterday, federal district Judge Paul Borman recused himself, sua sponte, in the criminal trial of a Palestinian woman chargged with failing to disclose to immigration officials the fact that she spent ten years in an Israeli prison for participating in two terrorist plots, one of which involved the bombing of a supermarket.  Last month Borman refused to recuse himself when his impartiality was challenged on the basis of his history of fundraising for the Detroit Jewish Federation and his organizing trips to Israel. (See prior posting.) Now, however, the prosecution furnished a translation of the Israeli indictment against defendant Rasmieh Odeh which indicated that the supermarket targeted in the bombing plot was a SuperSol. In United States v. Odeh, (ED MI, Aug. 12, 2014), Judge Borman wrote:

[A]t the time of the 1969 bombing, my family had a passive financial investment connection to SuperSol.... The Court concludes that my family’s passive financial investment connection to SuperSol at the time of the 1969 bombing could be perceived as establishing a reasonably objective inference of a lack of impartiality in the context of the issues presented in this case.

I recuse today, not because of my charitable giving or my work on behalf of the Jewish Federation of Metropolitan Detroit or other charities, which I concluded in my previous Order created neither the reasonable appearance nor the fact of impartiality. My decision to recuse today is based upon facts which became known to me yesterday in review of a relevant document not previously seen by the Court....

The Chicago Sun-Times reports on the decision.

USCIRF Issues Report On Sectarian Violence In Pakistan

The U.S. Commission on International Religious Freedom yesterday issued a Factsheet titled Violence Towards Religious Communities In Pakistan. It reports that  from July 2013 to June 2014 there were 122 incidents of sectarian violence resulting in 430 deaths and another 773 injuries.  The most common kind of violence was targeted shooting. The largest number of attacks were against Shi'a Muslims, with 222 deaths. The second largest number were against Christians, with 128 deaths. The report includes details of each violent incident.

Vatican Calls On Muslims and Others To Condemn ISIS

Vatican Radio reports that the Pontifical Council for Interreligious Dialogue yesterday issued a statement strongly condemning the atrocities comitted in Iraq by ISIS. The full text of the statement is included in the Vatican Radio report. It reads in part:

The whole world has witnessed with incredulity what is now called the "Restoration of the Caliphate," which had been abolished on October 29,1923 by Kamal Ataturk, founder of modern Turkey. Opposition to this "restoration" by the majority of religious institutions and Muslim politicians has not prevented the "Islamic State" jihadists from committing and continuing to commit unspeakable criminal acts....

The dramatic plight of Christians, Yezidis and other religious communities and ethnic minorities in Iraq requires a clear and courageous stance on the part of religious leaders, especially Muslims, as well as those engaged in interreligious dialogue and all people of good will. All must be unanimous in condemning unequivocally these crimes and in denouncing the use of religion to justify them. If not, what credibility will religions, their followers and their leaders have? 

Israel's Law of Return Extended To Same-Sex Non-Jewish Spouses

Since 1970, Israel's Law of Return which grants every Jew in the world the right to settle in Israel has also permitted the non-Jewish spouse of a Jew to settle in the country. The Jerusalem Post reports that yesterday Israel's Interior Minister Gidon Saar instructed the Population and Immigration Authority and the Jewish Agency to grant immigration visas and Israeli citizenship under the Law of Return to non-Jewish same-sex spouses on the same basis as to heterosexual couples. Haredi (ultra-Orthodox Jewish) groups in Israel and the United States strongly criticized the Interior Minister's decision.

Ohio Gubernatorial Candidates Take Different Approaches To Public Religious Expression

Yesterday's Columbus Dispatch explores the difference in the public expression of religion by Ohio's two gubernatorial candidates:

Gov. John Kasich doesn’t hide his religious convictions, talking about them frequently in speeches and at other public gatherings.

Ed FitzGerald holds religious values but rarely talks about them.

Although they espouse many of the same principles, the contrast in how Ohio’s gubernatorial candidates apply their Christianity to their public life and policies is stark.

While Democrat FitzGerald, the Cuyahoga County executive, favors abortion rights and supports same-sex marriage as public policy, the lifelong Catholic won’t say how he feels about those issues personally....

Kasich, a Republican who was raised Catholic but became a Protestant after his parents were killed by a drunken driver in 1987, cites God regularly in public, such as in justifying the building of a Holocaust Memorial on the Statehouse grounds, expanding Medicaid to more than a quarter-million Ohioans, in graduation speeches, in his State of the State addresses and even during an event launching a campaign to prevent the elderly from falling....

DC Circuit Acts On Case Remanded After Hobby Lobby

As previously reported, after the U.S. Supreme Court decided the Hobby Lobby case allowing for-profit-businesses to assert religious objections to the Affordable Care Act's contraceptive coverage mandate, it remanded three other cases on its docket posing the same issue. In what appears to be the first Circuit Court to act on the remand, the D.C. Circuit last week entered an order in Gilardi v. HHS (Aug. 8, 2014) providing:

it is ORDERED and ADJUDGED that the case be remanded to the district court with instructions to enter a preliminary injunction for the Freshway companies and to reconsider the denial of the preliminary injunction as to the individual owners in light of Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751 (2014).

Yesterday's Insurance Journal reports on the order. In the case, the D.C. Circuit Court had originally rejected the claim that secular corporations have free exercise rights, but had remanded to the district court for further findings the claims of the individual owners. The ruling on corporate rights had been appealed to the Supreme Court. (See prior posting.)

Little attention has been given to the fact that plaintiffs in the case asserted, consistent with their Catholic beliefs, that they have religious objections to all atificial contraception, not just the limited number of contraceptive methods involved in Hobby Lobby. (Gilardi complaint.) Apparently last week's D.C. Circuit Court order requires the district court to issue an injunction protecting these broader objections.

5th Circuit Rejects Discrimination Claim By Jehovah's Witness

In Norbach v. Woodland Village Nursing Center, Inc., (5th Cir., Augl 7, 2014), the U.S. 5th Circuit Court of Appeals, reversing the district court, dismissed a Title VII religious discrimination suit brought by a nursing home activities aide.  Kelsey Nobach was fired by the nursing home after she refused to pray the Rosary with a patient.  The court held that no evidence had been presented to the jury showing that the employer knew or reasonably should have known that her refusal was based on her Jehovah's Witness religious beliefs. BNA Daily Labor Report covers the decision.

Christian-Owned Bridal Shop Refuses Gown Fittings For Lesbian Couple

The latest installment in the battle over whether Christian-owned businesses can refuse service based on religious beliefs comes from Bloomsburg, Pennsylvania. According to yesterday's Christian News, W.W. Bridal Boutique in Bloomsburg recently refused to schedule gown fittings for two lesbian women who were planning their wedding.  One of the women refused service took her complaints to Facebook, and the dispute has now proliferated on social media.  Bridal shop owner Victoria Miller later told reporters: "We feel we have to answer to God for what we do. And providing those two girls dresses for a sanctified marriage would break God’s law." Now Bloomsburg city council is considering enacting an ordinance to prohibit discrimiantion on the basis of sexual orientation.

Texas Court Says There Is No Absolute Right To Home School Free of State Regulation

In El Paso Independent School District v. McIntyre, (TX App., Aug. 6, 2014), home-school parents challenged the right of the state to investigate the curriculum which they utilized. It was claimed that the McIntyre children did little school work, and that one of the children said they did not need to because they were going to be raptured. When another of the children ran away at age 17 so she could attend school, the parents refused to provide the school district with any information.

Most of the appellate court's lengthy decision dismissed various claims by the parents on procedural and jurisdictional grounds, including failure to exhaust administrative remedies, election of remedies and qualified immunity. Reaching the parents' 1st Amendment free exerrcise claim, the court rejected the parents' argument that the U.S. Supreme Court's 1972 Yoder decision gave them the right to withhold their children from any type of institutional school beyond the eighth grade. The court noted tha the situation of the Amish in that case was unique and observed:

No parents have ever prevailed in any reported case on a theory that they have an absolute constitutional right to educate their children in the home, completely free of any state supervision, regulation, or requirements. 

Lebanon Elects New Grand Mufti

Naharnet reports that in Lebanon yesterday, Sheikh Abdul Latif Daryan has been elected as the country's new Grand Mufti. Daryan is currently head of the Sunni Sharia Supreme Court. After his election, Daryan called for moderation and vowed to end the division between the Mufti and the Higher Islamic Council.

Cert. Petitions Filed In Oklahoma and Virginia Same-Sex Marriage Cases

Following quickly on the heels of Utah's Aug. 5 certiorari petition to the U.S. Supreme Court (see prior posting), certiorari petitions have been filed in two more same-sex marriage cases:

A petition (full text) was filed Aug. 6 in Smith v. Bishop, a case in which the 10th Circuit held that Oklahoma's ban on granting licences for same-sex marriages performed in the state is unconstitutional. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog points out that this is the longest-running federal court challenge to same-sex marriage bans, having been filed in 2004.

On Aug. 8, a petition for certiorari (full text) was filed in Rainey v. Bostic. In the case, the 4th Circuit Court of Appeals, in a 2-1 decision, struck down Virginia's ban on same-sex marriage. (See prior posting.) Reporting on the petition, Lyle Denniston at SCOTUS Blog comments that: "The Virginia case has special symbolic significance, because that is the state that produced the case of Loving v. Virginia, in which the Supreme Court in 1967 struck down a state law barring marriage by couples of different races."

Street Preacher's Challenge To Permit Requirements Dismissed

In Craft v. Village of Lake George, New York, (ND NY, Aug. 7, 2014), a New York federal district court dismissed free speech, free exercise and equal protection challenges by a street preacher to the permit requirements of a resort town in New York's Adirondacks.  His "as applied" challenge to the solicitation permit requirements was dismissed because he denies ever soliciting money from passersby.  Thus "he could not be deprived of what he did not attempt or intend to exercise." HIs facial challenge to the seasonal permit requirement for handing out leaflets was held to be moot because the village subsequently made "sweeping changes" to the provisions of the Village Code being challenged.

Recent Articles of Interest

From SSRN:

• Vincius Marinho, The Tension Between Normativity and Plurality in Religious Dogmas and in Constitutional Principles, (June 23, 2014).
• Carl Mosk, Liberal Nationalism, Religious Nationalism, and the Human Development Index, (July 16, 2014).
• Ciara Torres-Spelliscy, The Democracy We Left Behind in Greece and McCutcheon, (July 18, 2014).
• Cyra Akila Choudhury, From Bandung 1955 to Bangladesh 1971: Oppressed Populations, Self-Determination, and Third Worldist Failures in South Asia, (July 31, 2014).
• Todd E. Pettys, Doubting Abood, Finding Religion at Hobby Lobby, and More: Civil Cases in the Supreme Court's 2013-2014 Term, (Court Review, Vol. 50, Forthcoming).
• Houssem Eddine Bedoui & Walid Mansour, Performance and Maqasid al-Shari’ah’s Pentagon-Shaped Ethical Measurement, (July 16, 2014).

From SmartCILP:

• Ofra Friesel, Race versus Religion In the Making of the International Convention Against Racial Discrimination, [Abstract], 1965, 32 Law & History Review 351-383 (2014).
• Muhammad-Basheer Ismail, The 1979 United States-Iran Hostage Crisis Reviewed From an Islamic International Law Perspective, 42 Denver Journal of International Law & Policy 19-40 (2013).

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis of Northern and Southern California, 2014 U.S. Dist. LEXIS 105841 (ED CA, Aug. 1, 2014), a California federal magistrate judge dismissed with leave to amend an inmate's 250-page long complaint alleging  denial or restrictions on conversion to Judaism; hard cover books, materials and artifacts; numbers of books; religious packages; observance of holy days; kosher diet; facial beard; and a kosher work environment.

In Dilworth v. Goldberg, 2014 U.S. Dist. LEXIS 106258 (SD NY, Au. 1, 2014), a New York federal district court allowed a former inmate to proceed with his claim that his religious freedom was infringed while in jail when he was not allowed to attend church services and had his Bible was confiscated.

In Moore v. Gloucester County Jail, 2014 U.S. Dist. LEXIS 108600 (D NJ, Aug. 5, 2-14), a New Jersey federal district court dismissed a Muslim inmate's claim that he was not allowed to practice his religion properly.

In Rojas v. Heimgartner, 2014 U.S. Dist. LEXIS 108855 (D KS, August 7, 2014), a Kansas federal district court dismissed free exercise, equal protection and Indian Religious Freedom Act claims challenging prison dress policy that limited adherents of Native American religious to wearing white bandana headbands at religious ceremonies, and denied them permission to wear colorful headbands.

In Dushane v. Sacramento County Jail, 2014 U.S. Dist. LEXIS 108628 (ED CA, Aug. 5, 2014), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that the director of chaplains denied kosher diets to Muslim inmates and limited them to vegetarian diets if they wished to observe their religious dietary requirements.

Consent Decree Allows Gospel Tracts At Street Festivals

In Price v, City of Fayetteville, North Carolina, (ED NC, Aug. 7, 2014), a North Carolina federal district court entered a consent decree enjoining the city from restricting distribution of religious literature at private festivals on public streets that are free open to the public.  This specifically includes the Dogwood Festival and the Independence Day Concert held in downtown Fayetteville-- venues at which last year police prevented plaintiffs Tom Price and William Legg  from distributing gospel tracts. WRAL News reports on the court's action. [Thanks to Paul de Mello for the lead.]

China Government Is Promoting A Chinese Version of Protestant Theology

China Daily this week reported on remarks by China's director of the State Administration for Religious Affairs outlining a 5-year campaign started last year to promote Christian theology in China. Wang Zuoan was speaking at a seminar in Shanghai on the Sinicization of Christianity, part of the celebration of the 60th anniversary of the founding of the National Committee of the Three-Self Patriotic Movement of the Protestant Churches in China. The new government campaign is designed to adapt Protestant theology to China's national condition and Chinese culture. It will give guidance to Protestant churches in an attempt to promote theological ideas seen as positive and correct by the government.

Egyptian Court Dissolves Muslim Brotherhood's Freedom and Justice Party

In Egypt yesterday, the Supreme Administrative Court ordered dissolution of the Freedom and Justice Party, the political wing of the Muslim Brotherhood. Reuters and BBC News report that the decision, which excludes the party from running candidates in future elections, calls for seizure of the party's assets by the state. The government's Committee of Political Party Affairs had accused the FJP of irregularities. Among other things, police found that the party's headquarters had been used to store weapons. The court's decision may not be appealed. FJP's parent Muslim Brotherhood was banned and its assets were confiscated by court order last year. (See prior posting.)

New York City Health Department Orders 2 Mohels To Stop Controversial Circumcision Method After Infections

The Forward reported this week that the New York City Health Department has prohibited two mohels from performing Jewish religious circumcisions using the direct oral suction method (metzitzah b’peh) after infant boys allegedly contracted herpes infections from the two. The Health Department refuses to name the mohels  for privacy reasons.  New York City Health Department regulations adopted in 2012 require mohels to obtain written informed consent before using the controversial method for a circumcision. (See prior posting.) Only one of the two mohels targeted by the Health Department was able to produce the consent form for the infected infant.

Suit Claims Rabbi Sexually Assaulted Students At His Israeli Schools For Girls

Courthouse News Service and JTA report on a class action lawsuit filed last Monday in federal district court in Illinois against Rabbi Elimelech Meisels, his four Orthodox Jewish seminaries in Israel, the U.S. fundraising arm of the schools, and other alleged co-conspirators.  The lawsuit, alleging racketeering, fraud, breach of contract, emotional distress, conspiracy and conversion, claims that Meisels induced parents in the U.S. to send their daughters to his high-tuition seminaries where he would sexually assault the girls after developing mentorship relations with them. It is alleged that he kept his victims quiet in part by threatening to ruin their reputations and their chances for an appropriate marriage candidate. A Chicago Jewish religious court that learned of the problems urged parents not to send their children to the schools. The complaint alleges that at that point Meisels engaged in a sham sale of the seminaries to try to retain students.

Ten Commandments On City Hall Lawn Violates Establishment Clause

In Felix v. City of Bloomfield, (D NM, Aug. 7, 2014), in a decision described by the court as "a very close case," a New Mexico federal district court held that a 5-foot tall Ten Commandments monument on the lawn in front of the Bloomfield, New Mexico municipal building violates the Establishment Clause. The monument was constructed on city property by a former member of city council under a city council policy on the placement of monuments on the city lawn. Summarizing its 32-page decision, the court said:

a. Plaintiffs have Article III standing because they have regular, direct, and unwelcome contact with the Ten Commandments monument and therefore have suffered an “injury-in-fact”.... 

b. The Ten Commandments monument is government speech ... because the ... monument is a permanent object located on government property and it is not part of a designated public forum open to all on equal terms.

c. In view of the circumstances surrounding the context, history, and purpose of the Ten Commandments monument, it is clear that the City of Bloomfield has violated the Establishment Clause because its conduct in authorizing the continued display of the monument on City property has had the primary or principal effect of endorsing religion.