Israeli Rabbis Debate Jewish Prayer On Temple Mount

Today's Jerusalem Post reports on the halachic (Jewish religious law) dispute between haredi and national religious rabbis in Israel over whether it is permissible for Jews to visit the Temple Mount, now the location of Muslim holy sites.  The issue has taken on new urgency since the attempted assassination last month of Rabbi Yehudah Glick, leader of the Temple Mount Heritage Foundation that promotes the right of Jews to pray on the Mount in preparation for restoring of a third Jewish Temple there. (Background). In recent weeks there have been increased clashes between Arab demonstrators and police in Jerusalem. (Background).

USCIRF Issues Report On Burma As Obama Visit Approaches

In advance of President Obama's trip to Burma (Myanmar) later this week, the U.S. Commission on International Religious Freedom issued a report titled Burma: Religious Freedom and Related Human Rights Violations are Hindering Broader Reforms.  In a Nov. 6 press release summarizing the Report, USCIRF said in part:

USCIRF focused on four key issues in its mission: discrimination and horrible abuses against Rohingya Muslims; broader patterns of intolerance against Muslims driven by bigotry and chauvinism among religious and political figures that also impact all other minority religious communities in Burma; laws, policies and proposed legislation that entrench multiple forms of discrimination; and deprivation of citizenship to Rohingya Muslims and prejudicial practices in the issuance of identification documents to all Muslims.

Recent Articles of Interest

From SSRN:

• John Witte, Religion, (Dinah Shelton, ed., "The Oxford Handbook of International Human Rights Law" (New York/Oxford: Oxford University Press, 2014): 9-31 (with M. Christian Green)).
• William M. Janssen, Led Blindly: One Circuit's Struggle to Faithfully Apply the U.S. Supreme Court's Religious Symbols Constitutional Analysis, (West Virginia Law Review, Vol. 116, p. 33, 2013).
• William M. Janssen, Toiling in the Lemon Groves: Prelude to the Endorsement Test, (Charleston Law Review, Vol. 7, p. 691, 2013).
• C.G. Bateman, Method and Metaphysics: A Legal Historian's Canon, (The Journal Jurisprudence, Volume 23, pp. 255-312, September 2014).
• Edward A. Morse, Health Accounts/Arrangements: An Expanding Role Under the Affordable Care Act?, (NYU Review of Employee Benefits, 2014).
• Lorenzo Zucca, A Genealogy of State Sovereignty, (Theoretical Inquiries in Law, Forthcoming).
• Pnina Lahav, Current Challenges: Gender and New Forms of Political Activism, (Boston Univ. School of Law, Public Law Research Paper No. 14-71, 2014).
• Eliaabeth Wicks, Dying with Conscience: The Potential Application of Article 9 ECHR to Assisted Dying, (University of Leicester School of Law Research Paper No. 14-26, 2014).
• Law and ChristianityNathan B. Oman, Need for a Law of Church and Market, (Duke Law Journal Online, Forthcoming).
• Richard Delgado & Jean Stefancic, Hate Speech in Cyberspace, (Wake Forest Law Review, Vol. 49, 2014).
• Angela Cameron, Angela Chaisson & Jena McGill, The Law Society of Upper Canada Must Not Accredit Trinity Western University's Law School, (October 22, 2014.
• John Witte & Christopher Manzer, A Prequel to Law and Revolution: A Long Lost Manuscript of Harold J. Berman Comes to Light, (Journal of Law and Religion, Vol. 29 (2014) 142-169).

Fom SSRN: Law and Christianity

• John Witte, From Gospel to Law: The Lutheran Reformation and Its Impact on Legal Culture, (Mark A. Noll and Tal Howard, eds., Protestantism? Reflections in Advance of the 500th Anniversary of the Protestant Reformation, 1517-2017, Forthcoming).
• John Witte, John & M. Christian Green, Freedom, Persecution, and the Status of Christian Minorities, (Blackwell Companion to World Christianity, Basil Blackwell, 2014, Forthcoming).
• John Witte, Sex and Marriage in the Protestant Tradition: 1500-1900, (Adrian Thatcher, ed., Oxford Handbook on Theology, Sexuality, and Gender (Oxford: Oxford University Press, 2014), Forthcoming).

From SSRN: Law and the Mormon Church

• Cheryl B. Preston, 'The Spiritual Concept of Form and Function as One': Structure, Doctrine, and The Church of Jesus Christ of Latter-Day Saints, (53(3) BYU Studies Quarterly 37-76 (2014)).
• Nathan B. Oman, Doux Commerce in the City of God: Trade and the Mormon Ideal of Zion, William & Mary Law School Research Paper No. 09-289 (2014)).

Recent Prisoner Free Exercise Cases

In Hall v. Sutton, 2014 U.S. App. LEXIS 21073 (7th Cir., Nov. 5, 2014), the 7th Circuit affirmed the district court's grant of qualified immunity in a challenge to a prison's two-meal practice during Ramadan and its delay of the Eid-ul-Fitr celebration.

In May v. Snaza, 2014 U.S. Dist. LEXIS 156088 (WD WA, Nov. 4, 2014), a Washington federal district court adopted a magistrate's recommendation (2014 U.S. Dist. LEXIS 156027, Oct. 8, 2014) and dismissed without prejudice a Muslim inmate's claim that his transfer to a different jail violated his free exercise rights because he was then denied Ramadan meals, Jumu'ah prayer services, and an Islamic leader and literature, and had a delay in being placed on a vegetarian diet.

In Ajala v. West, 2014 U.S. Dist. LEXIS 156618 (WD WI, Nov. 4, 2014), a Wisconsin federal district court dismissed Muslim inmates' claims that prison authorities refused to accommodate their Ramadan fast and have a special meal for Eid al-Fitr. Plaintiffs though were permitted to file additional material on their claim that their 2012 Ramadan request was refused.

7th Circuit Upholds Northwestern University's Cut-Off of Chabad House

In Lubavitch-Chabad of Illinois, Inc. v. Northwestern University, (7th Cir., Nov. 6, 2014), the U.S. 7th Circuit Court of Appeals rejected a claim by Chabad House Rabbi Dov Hillel Klein at Northwestern University that his rights under 42 USC Sec. 1981 were violated when the University ended its affiliation with Chabad House because of underage student drinking there. Section 1981 bars racial discrimination in making or enforcing contracts. The disaffiliation resulted in non-renewal of the rabbi's contract to supervise kosher food supplied to Northwestern. The court concluded:

[T]he only discrimination ... alleged is that the university staff did not take the same measures against student organizations that it did against the Chabad house, even though, as is well known, excessive (and underage) drinking is common in such organizations, notably fraternities. But unlike Chabad houses, fraternities are not managed by adults and are components of the university rather than separate entities merely affiliated with it. And the fraternity drinking incidents to which Klein refers occurred before the current vice president of student affairs assumed office, so leniency regarding such drinking was the policy of a different decision‐maker.

Settlement Reached In Case of Sikh IRS Employee's Wearing of Kirpan

A settlement has been reached in the case of a Sikh employee of the Internal Revenue Service who lost her job after she insisted on wearing her kirpan into her federal office building. As reported this week by the Houston Chronicle and in a Becket Fund press release, the settlement was reached shortly after the trial of RFRA claims began in the case that was on remand from the 5th Circuit. (See prior posting.) Under the settlement, plaintiff Kawaljeet Tagore's firing is expunged from her record. She may not seek re-employment with the IRS, but may apply to other federal agencies.  She is allowed to enter federal buildings with her kirpan for a period of three years. Finally she is awarded $400,000 for lawyers' fees and expenses.

Challenge To Tennessee Limittions On LGBT Protections Dismissed On Standing and Mootness Grounds

In Howe v. Haslam, (TN App, Nov. 4, 2014) (Farmer, J opinion for court)  (Stafford, J concurring) (McBrayer, J concurring in part), the Tennessee Court of Appeals dismissed on a combination of mootness and standing grounds a challenge to Tennessee statutes that effectively prevent local governments from enacting civil rights protections to ban discrimination on the basis of sexual orientation or gender identity.  At issue are provisions of state law that amend Tennessee's state anti-discrimination law to define "sex" to mean the designation of male or female on one’s birth certificate, and then generally prohibit local governments from imposing anti-discrimination standards that deviate from those in state law.

Humanist Sues Navy Over Rejection of His Chaplaincy Application

Stars and Stripes reported yesterday that a lawsuit has been filed in federal district court for the Northern District of Virginia by a religion scholar and former youth minister whose application to become the Navy's first Humanist chaplain was turned down.  Plaintiff Jason Heap, who filed suit along with the Humanist Society, claims that political opposition to a Humanist as a chaplain derailed his application. (See prior related posting.) He contends that he holds his Humanist beliefs with the same strength and sincerity as believers in traditional religions hold theirs.  He says that his rejection violated his constitutional rights and asks the court to order his instatement as a Navy Chaplain. The suit names various Navy and Defense officials as defendants. Last week in an unrelated case, an Oregon federal district court held that Humanism is a religion for Establishment Clause purposes. (See prior posting.)

NYT Surveys Increasing Persecution of Rohingya By Myanmar

The New York Times in a lengthy article posted yesterday surveys the increasing persecution of the Rohingya Muslims by the government of Myanmar. Here is an excerpt:

The Myanmar government has given the estimated one million Rohingya people in this coastal region of the country a dispiriting choice: Prove your family has lived here for more than 60 years and qualify for second-class citizenship, or be placed in camps and face deportation.

The policy, accompanied by a wave of decrees and legislation, has made life for the Rohingya, a long-persecuted Muslim minority, ever more desperate, spurring the biggest flow of Rohingya refugees since a major exodus two years ago.

Malaysian Court Strikes Down Law Restricting Transgender Rights

BBC News reports today that a 3-judge appeals court panel in the Malaysian state of  Negeri Sembilan has struck down a state law barring Muslim men from wearing women's clothing. The appeal was brought by three transgender women who, a lower court had ruled, were required to wear men's clothing because they were born as males. In what is seen as a major victory for transgender rights, the court ruled that the law is "degrading, oppressive and inhumane."

Court Rejects Free Exercise and Establishment Clause Challenges To California's Reparative Therapy Ban

In Welch v. Brown, (ED CA, Nov. 5, 2014), a California federal district rejected Free Exercise and Establishment Clause challenges to California's ban on mental health professionals providing "sexual orientation change efforts" (SOCE) for minors.  The decision follows on the 9th Circuit's rejection of a free speech challenge to the law.  At issue was a claim by a licensed therapist who was also an ordained minister. The court held that the SOCE ban is a neutral law of general applicability, so that only rational basis review need be applied, saying:

the Legislature was concerned with the harm SOCE therapy causes minors regardless of whether it is motivated by secular or religious beliefs.

The court also rejected the argument that the law creates excessive entanglement with religion:

even if a mental health provider's use of SOCE relies on church doctrines or teachings, the state need not evaluate or consider those religious teachings in order to determine whether the provider performed SOCE.

Finally the court rejected privacy challenges to the law.

White House Aide Will Be New ADL National Director

The Anti-Defamation League announced yesterday that its new National Director will be Jonathan Greenblatt who currently serves as Special Assistant to President Obama and Director of the White House Office of Social Innovation & Civic Participation. Greenblatt, the grandson of a Holocaust survivor who escaped Nazi Germany, is described as a social entrepreneur who has had a lifelong commitment to Jewish social causes.  Greenblatt will succeed long-time ADL director Abe Foxman.

6th Circuit Upholds Same-Sex Marriage Bans

In DeBoer v. Snyder, (6th Circuit, Nov. 6, 2014), in a 2-1 decision, the U.S. 6th Circuit Court of Appeals today became the first federal circuit court to uphold state bans on same-sex marriage and on recognition of same sex-marriages performed elsewhere.  Departing from decisions by the Fourth, Seventh, Ninth and Tenth Circuits, the court upheld state statutory and constitutional provisions from Michigan, Ohio, Kentucky and Tennessee. Judge Sutton, writing for the majority, summarized his approach:

What remains is a debate about whether to allow the democratic processes begun in the States to continue in the four States of the Sixth Circuit or to end them now by requiring all States in the Circuit to extend the definition of marriage to encompass gay couples. Process and structure matter greatly in American government. Indeed, they may be the most reliable, liberty assuring guarantees of our system of government, requiring us to take seriously the route the United States Constitution contemplates for making such a fundamental change to such a fundamental social institution.

Judge Daughtry dissenting said in part:

In the main, the majority treats both the issues and the litigants here as mere abstractions.  Instead of recognizing the plaintiffs as persons, suffering actual harm as a result of being denied the right to marry where they reside or the right to have their valid marriages recognized there, my colleagues view the plaintiffs as social activists who have somehow stumbled into federal court, inadvisably, when they should be out campaigning to win “the hearts and minds” of Michigan, Ohio, Kentucky, and Tennessee voters to their cause. But these plaintiffs are not political zealots trying to push reform on their fellow citizens; they are committed same-sex couples, many of them heading up de facto families, who want to achieve equal status....

SCOTUSblog reporting on the 6th Circuit's decision speculated that the split among circuits that it creates is likely to lead to Supreme Court review unless en banc review from the 6th Circuit is sought and granted.

Court Says Students Can Proceed With Claims of Anti-Semitic Harassment At School

In T.E. v. Pine Bush Central School District, (SD NY, Nov. 4, 2014), a New York federal district court refused to dismiss claims by three Jewish students that they suffered extensive anti-Semitic harassment from fellow-students while attending elementary school, middle school and high school. In a 76-page opinion, the court allowed students to proceed against the school district and various school officials in their individual capacities with claims under Title VI of the 1964 Civil Rights Act, the 14th Amendment and the New York Civil Rights Law. Courthouse News Service reports on the decision.

Suit By Catholic Challenges Nigeria's Requirements For Christian Marriages

In Nigeria, Olisa Agbakoba, the former president of the Nigerian Bar Association,  has filed a lawsuit challenging the constitutionality of provisions of the Marriage Act and the Matrimonial Causes Act. According to yesterday's This Day, the suit brought in the Lagos Division of the Federal High Court contends that the Marriage Act forces Agbakoba, a Catholic, to be married in a secular ceremony rather than in accordance with Canon Law in violation of his constitutionally protected right of religious freedom.  According to the complaint:

The Marriage Act and the Matrimonial Causes Act subject the sacrament of holy matrimony to state certification thus constrained the Applicant to contract a secular marriage. But the ATR [African traditional Religion] adherents, Muslims, and traditionalists are enabled by the Nigerian legal system to contract valid marriages under their religious codes without state intervention or further ‘validation’ by a Marriage Registry or other civil authority under a secular statute.

Agbakoba also claims that the Matrimonial Causes Act is discriminatory by requiring Christians to resolve marital disputes through the civil courts by judges who are not knowledgeable in Canon law, while Muslims may use Islamic courts and adherents of African Traditional Religions may use Customary Courts.

Tuesday Exit Polls Reveal Voting Behavior By Religious Affiliation

The Fox News Exit Polls published yesterday include a number of questions about religious affiliation and voting behavior on Tuesday.  While Republicans did well nationally, the poll shows significant variation in support for Republicans depending on the voter's religious affiliation. Here are the percentages by religious persuasion who voted Republican: Mormon- 73%; Protestant-65%; Other Christian- 55%; Catholic- 34%; Jewish 33%; Other religion- 32%; No religion- 29%. For the sub-category of White evangelical or born again Christians, 78% voted Republican.

Results On Ballot Issues of Interest

Here are unofficial voting results from yesterday on several ballot issues of interest to Religion Clause readers:

Alabama Issue 1 adding a state constitutional amendment banning use of "foreign law" in Alabama courts passed with 72% in favor. (99% of votes counted) (full voting results).

Colorado personhood amendment (Amendment 67) defeated with 64.29% voting no. (17 of 64 counties not fully counted) (full voting results).

Illinois Advisory Question on requring contraception coverage as part of drug coverage passed with 66% in favor. (92% of votes counted) (full voting results).

North Dakota "life begins at conception" amendment defeated with 64.13% voting no. (100% of votes counted) (voting results).

Tennessee Amendment 1 adding a state constitutional amendment allowing regulation of abortion passed with a vote of 52.61% in favor. (100% of votes counted) (voting results).

Many Polling Places Are In Houses of Worship

Yesterday's Houston Chronicle explores the widespread practice of using churches and other houses of worship as polling places. Reporting on one Texas county, the paper says:

As Harris County voters Tuesday help select a new governor and other key officials in an unusually contentious mid-term election, many will cast their ballots at places of worship. Almost one-fifth of the county's 1,069 precincts vote in churches. And while election officials say they endeavor to ensure that such venues are neutral, recent studies suggest that even when overt political messages are absent, religious spaces can subtly affect voter choices.

Belgium's Top Administrative Court Invalidates School Bans On Religious Headwear

Strasbourg Observers blog reported yesterday on two Oct. 14 decisions by Belgium's Council of State (its highest administrative court) invalidating school regulations that banned students from wearing religious headwear or other religious insignia. The bans at issue were imposed by the Flemish Community Education Board. One of the cases decided by the court involved a Sikh turban or patka and the other involved a Muslim headscarf-- the main target of the regulations. The Court held:

Taking into account the proportionality requirement, a justification is all the more necessary as the litigious ban might lead to a denial of access to education for students for the sole reason that they exercise a fundamental right, without it being adequately demonstrated that they disrupt the public order or endanger the rights and freedoms of others.

The full text of the decisions (Case 228.751 and Case 228.752 ) are available in Dutch. [Thanks to Paul deMello for the lead].

Crimea Related Sanctions Lead To Issues For Russian Jews

After the United States and Western European nations imposed sanctions on Russia over of its annexation of Crimea and its support for rebels in eastern Ukraine, Russia imposed counter-sanctions barring import of European agricultural products.  To make up for the lost European produce, agricultural imports from Israel to Russia have increased dramatically.  According to yesterday's Jerusalem Post, this has created problems for religious Jews in Russia who want to comply with strict interpretations of religious law barring consumption of produce grown in Israel during the Biblical sabbatical year (which is this year). Russia's Congress of Jewish Religious Organizations met in Moscow this week to discuss the matter.