Pope Francis Addresses European Parliament and Council of Europe

Pope Francis yesterday delivered a lengthy address (full text) to the European Parliament in Strasbourg, France. As reported by Vatican Radio, the Pope spoke of the importance of Christian values to Europe. He said in part:

Today, the promotion of human rights is central to the commitment of the European Union to advance the dignity of the person, both within the Union and in its relations with other countries....

At the same time, however, care must be taken not to fall into certain errors which can arise from a misunderstanding of the concept of human rights and from its misuse.  Today there is a tendency to claim ever broader individual rights; underlying this is a conception of the human person as detached from all social and anthropological contexts....  The equally essential and complementary concept of duty no longer seems to be linked to such a concept of rights. ....

To our dismay we see technical and economic questions dominating political debate, to the detriment of genuine concern for human beings. Men and women risk being reduced to mere cogs in a machine that treats them as items of consumption to be exploited, with the result that – as is so tragically apparent – whenever a human life no longer proves useful for that machine, it is discarded with few qualms, as in the case of the terminally ill, the elderly who are abandoned and uncared for, and children who are killed in the womb.

Later yesterday, the Pope gave a second address to the Council of Europe. (Full text.) As reported by Vatican Radio, his talk addressed many of the challenges facing Europe today.

A day before the Pope's visit, the radical feminist group FEMEN staged a protest in the Strasbourg Cathedral. According to FEMEN's webiste:

Today, the day before Pope's venue, FEMEN sextremists climbed the altar in Strasbourg Cathedral and installed a European flag as a symbol of new union between European political power and Catholic Church with it's Vatican. Symbolically, the protest took place in the only region of France where the state and church are not separated by law, Alsace region. The activist was carring a slogan "Antisecular Europe" on her chest to denounce the betrayer of secular ideas by the EU Parliament that invited the Pope.

Lifesite News reports on the topless demonstration.

Religion Clause Nominated For ABA Journal Blawg 100

I am pleased to announce that Religion Clause has been nominated by the ABA Journal for inclusion in its 8th Annual Blawg 100 rankings.  This is the sixth time in eight years that Religion Clause has made this prestigious list of the top 100 blogs directed at audiences interested in law and lawyers.  This year, Religion Clause was awarded the added honor of becoming part of the Blawg 100  Hall of Fame-- a group of 30 blogs described by the ABA Journal as blogs which have "consistently been outstanding throughout multiple Blawg 100 lists."

Click here to go to ballot

Now that the ABA Journal editors have narrowed the list to 100, the Journal asks you to vote for your favorite in each of its 13 categories. Religion Clause has been nominated in the "Profs" category. You may cast your votes in all categories at this link.  The ABA Journal requires a short registration process as part of the voting in order to prevent ballot box stuffing.  I hope you find Religion Clause a worthwhile enough read to vote for it.  Voting ends on Dec. 19.  Thanks to all who nominated Religion Clause for this honor.

Colorado Supreme Court: FFRF Lacks Standing To Challenge Day of Prayer Proclamations

In a 5-2 decision yesterday, the Colorado Supreme Court held that the Freedom From Religion Foundation and its members lack standing to challenge the Governor's annual Colorado Day of Prayer proclamations. The suit claimed that the proclamations violate Art. II, Sec. 4 of the Colorado Constitution which prohibits the government from giving preference to any religious denomination.  In Hickenlooper v. Freedom from Religion Foundation, Inc., (CO Sup. Ct., Nov. 24, 2014), the majority said in part:

Although we do not question the sincerity of Respondents’ feelings, without more, their circuitous exposure to the honorary proclamations and concomitant belief that the proclamations expressed the Governor’s preference for religion is simply too indirect and incidental an injury to confer individual standing. To hold otherwise would render the injury-in-fact requirement superfluous, as any person who learned of a government action through the media and felt politically marginalized as a result of that secondhand media exposure would have individual standing to sue the government. Because such a result would stretch our already broad conceptualization of individual standing beyond recognition and thrust the judiciary beyond its article III limits, we hold that Respondents have not alleged an injury sufficient to establish individual standing.

Justice Hood, joined by Justice Hobbs, dissented. They would have found standing, but concluded that the proclamations do not violate the state constitution's Preference Clause, saying in part:

If our “tradition assumes that adult citizens, firm in their own beliefs, can tolerate and perhaps appreciate a ceremonial prayer delivered by a person of a different faith,” then it must also be assumed that adult citizens can tolerate something far less intrusive: a proclamation urging appreciation of the power of a prayer.

Britain's Law Society Withdraws Practice Note On Drafting Sharia-Compliant Wills

Last March, the Law Society of England and Wales issued a Practice Note to assist British solicitors whose clients ask them to draw up wills that comply with Sharia law. The Law Society's action drew criticism from those who objected that such wills may deny women an equal share of an estate and exclude "illegitimate" children or unbelievers. (See prior posting.) Yesterday the Law Society announced that it has withdrawn the Practice Note, saying in part:

Our practice note was intended to support members to better serve their clients as far as is allowed by the law of England and Wales.  We reviewed the note in the light of criticism. We have withdrawn the note and we are sorry.

The Telegraph reports on reaction to the Law Society's latest action.

DOJ Requires Georgia County To Provide Extensive Training To Prevent Religious Bullying of Sikhs and Others

Last week (Nov. 18), the Justice Department announced an extensive agreement between federal authorities and the DeKalb County, Georgia school district requiring the district to implement polices and procedures to prevent and respond to religious and national origin harassment of students by fellow-students. The Resolution Agreement (full text) supplements a May 2013 agreement (full text) that settled a lawsuit brought by a Sikh student who had been repeatedly harassed and bullied. (2013 Sikh Coalition release.) That agreement required implementation of a safety plan for that student and anti-harassment training.  Last week's settlement (Sikh Coalition release) grew out of the Justice Department's continuing examination of the school district's harassment policies. Among other things, it requires the school district:

to develop and implement annual age and position-appropriate trainings on religious and national origin harassment for all students, staff who interact with students (including administrators, teachers, counselors, and bus drivers), and District-level administrators who interact with students or who are involved in addressing harassment or bullying in the District. The District will implement separate student- and staff-specific trainings....

All trainings must include:

A facilitated discussion of the root causes of religious and national origin harassment and the harms resulting from such conduct, including but not limited to issues related to post-9/11 backlash and the perpetuation of negative stereotypes impacting the Sikh, Muslim, South Asian, and Arab-American communities....

SCOTUS Hobby Lobby Decision Implemented With Narrow Injunction

Last week, an Oklahoma federal district court implemented the U.S. Supreme Court's decision in the Hobby Lobby case, issuing a narrow injunction. In Hobby Lobby Stores, Inc. v. Sebelius, (WD OK, Nov. 19, 2014), the court enjoined the government from enforcing regulations under the Affordable Care Act "which require plaintiffs Hobby Lobby Stores, Inc. and Mardel, Inc. to provide their employees with health coverage for contraceptive methods, sterilization procedures, and related patient education and counseling to which plaintiffs' object on religious grounds...." The court refused to issue the broader injunction sought by plaintiff that would have enjoined enforcement of the statute, as well as the regulations, saying: "A broader order enjoining any potential application of the statute ... goes beyond what has been actually decided and litigated in this case."

Oklahoma Legislator Will Replace Destroyed 10 Commandments Monument

As previously reported, last month a man, claiming to have been directed to do so by Satan, drove his car into the Ten Commandments monument on the Oklahoma State Capitol grounds.  KOCO today reports that Republican state legislator Mike Ritze who paid $10,000 for the monument says that he has ordered an identical new monument to replace the original that is beyond repair. Again the monument will be paid for by private funds. An Establishment Clause challenge to the original monument was rejected by an Oklahoma state trial court (see prior posting), and the case is now on appeal to the state Supreme Court.

Conservative Group Seeks IRS Communications With Freedom From Religion Foundation

As previously reported, in July the Freedom From Religion Foundation reached a settlement agreement with the Internal Revenue Service in a suit challenging the IRS's alleged non-enforcement against churches and religious organizations of the Section 501(c)(3) ban on political activity by non-profits. In announcing the settlement, FFRF said that the IRS has now adopted procedures for reviewing, evaluating and determining whether to initiate church investigations.

Now the conservative organization, Judicial Watch is attempting to discover more about these new procedures.  It announced today that earlier this month it filed a Freedom of Information Act lawsuit seeking all records of communications between the IRS and FFRF on the promotion of political issues, legislation and candidates by churches and religious organizations.  It is also seeking all records relating to IRS monitoring of churches and religious organizations that took place to ensure they are not engaging in political activity.  The complaint (full text) in  Judicial Watch, Inc. v. Internal Revenue Service, (D DC, filed 11/6/2014), says that so far the IRS has failed to comply with Judicial Watch's request for these records.

Commenting on the filing of the lawsuit, Judicial Watch president Tom Fitton said:

As expressed by the First Amendment, Americans have the God-given right to both express their religious views and to engage in the political process. It is troubling that the IRS seems set to rely on a group of atheists to point them toward churches that might have criticized politicians.  And it is even more disturbing that the IRS would violate federal law, The Freedom of Information Act, in order to keep secret its monitoring of Americans praying together in church.  To be clear, the very IRS that abused Tea Partiers for Obama’s election now purports to be able to ‘audit’ houses of worship in order to protect politicians from criticism. I am sure the Obama administration is more than happy to use the excuse of a lawsuit by a leftist group to use the IRS to punish churches that oppose Obama’s war on religious freedom

Recent Articles and Books of Interest

From SSRN:

• Abner S. Greene, Religious Freedom and (Other) Civil Liberties: Is There a Middle Ground?, (Harvard Law & Policy Review, 2015 Forthcoming).
• Geoffrey P. Miller, The Kingdom of God in Samuel, (NYU School of Law, Public Law Research Paper No. 14-66, Nov. 2014).
• Cyra Akila Choudhury, Beyond Culture: Human Rights Universalisms versus Religious and Cultural Relativism in the Activism for Gender Justice, (__J. of Research in Gender Studies__ (2015 Forthcoming)).
• Charles J. Reid, Sovereignty and Belief: Thoughts on H.L.A. Hart, the Rule of Recognition, and the Crisis in Iraq, (Judicial Service Association Journal (2014 Forthcoming)).
• Margo A. Bagley, The Wheat and the (GM) Tares: Lessons for Plant Patent Litigation from the Parables of Christ, (Virginia Public Law and Legal Theory Research Paper No. 71 (Nov. 2014)).
• Margo A. Bagley, 'Grant Me Justice Against My Adversary': What Parables Can Teach Us About Organic Seed Growers & Trade Assoc. v. Monsanto Co., (Irene Calboli & Srividyha Ragavan, eds., Reconciling Diverse Identities and Intellectual Property, Cambridge University Press, 2015, Forthcoming).
• Larissa Lee, Let the Hospital's Conscience Be Your Guide: How Institutional Policies are Eroding 'Death with Dignity', (November 22, 2014). 

From SSRN (Islamic Law):

• Muhammad Munir, Shari‘ah and Nation-State: The Transformation of Maqasid Al-Shari‘ah Theory, (November 8, 2014).
• Michael J. T. McMillen, The UNCITRAL Model Secured Transactions Law: A Shariʿah Perspective, (UNCITRAL Working Group VI: The Draft UNCITRAL Model Law on Secured Transactions (tentative title), Forthcoming).

From SmartCILP:

• William A. Galston, Should Public Law Accommodate the Claims of Conscience?, [Abstract], 51 San Diego Law Review 1-18 (2014).
• Frederick B. Jonassen, "So Help Me?": Religious Expression and Artifacts In the Oath of Office and the Courtroom Oath, [Abstract], 12 Cardozo Public Law, Policy and Ethics Journal 303-373 (2014).
• Charles J. Russo, Religious Freedom In A Brave New World: How Leaders In Faith-Based Schools Can Follow Their Beliefs In Hiring, [Abstract], 45 University of Toledo Law Review 457-470 (2014).
• Ronna Greff Schneider, The Crucifix In the Classroom, Religious Symbols, and Public Classroom Walls: An International Perspective On Religion In the Public Sphere (Reviewing The Lautsi Papers: Multidisciplinary Reflections on Religious Symbols in the Public School Classroom, edited by Jeroen Temperman), [Abstract], 36 Human Rights Quarterly 668-682 (2014).
• Adam Wallwork, Legislating the Free Exercise Clause: Congressional Power and the Religious Land Use and Institutionalized Persons Act of 2000, 5 Faulkner Law Review 1-28 (2013-2014). 

Recent Books:

• Franco Garelli, Religion Italian Style: Continuities and Changes in a Catholic Country, (Ashgate, Nov. 2014).
• Marie-Claire Foblets, et. al. (eds.), Belief, Law and Politics: What Future for a Secular Europe?, (Ashgate, Dec. 2014). (from the book, Pasquale Annicchino, Coherence (and Consistency) or Organized Hypocrisy? Religious Freedom in the Law of the European Union.)

Israel's Cabinet Approves Proposed Basic Law Declaring Israel As A Jewish State

The Jerusalem Post reports that Israel's Cabinet today voted 15-6 to approve three proposed versions of the highly controversial "Basic Law: Israel as the Nation-State of the Jewish People." The Cabinet Ministers' discussion descended into a shouting match. The bills will be presented for a preliminary vote in the Knesset Wednesday, and then will go to committee where the versions will be combined. All of the versions protect "Hatikva" as the national anthem, protect state symbols, use of the Hebrew calendar and the Law of Return, and give freedom of access to holy places and protect them.

Recent Prisoner Free Exercise Cases

In Robbins v. Toole, 2014 U.S. Dist. LEXIS 160274 (SD GA, Nov. 14, 2014), Georgia magistrate judge allowed an inmate to proceed with his complaint that he was not being given food that meets his religious requirements.

In Malipurathu v. Johnson, 2014 U.S. Dist. LEXIS 160529 (ND OK, Nov. 13, 2014), an Oklahoma federal district court dismissed complaints by a Sikh inmate that he was not permitted to obtain a halal diet until he listed his religion as Sikh/ Islam.  Plaintiff never requested that the Department of Corrections add the Sikh religion to the list of those entitled to a halal diet. The court also dismissed various complaints about the content of halal meals served to plaintiff.

In Snodgrass v. Robinson, 2014 U.S. Dist. LEXIS 161517 (WD VA, Nov. 17, 2014), a Virginia federal district court refused to dismiss a Muslim inmate's complaint that he was not permitted to participate in the 2013 Ramadan fast.

In Amos v. Stolzer, 2014 U.S. Dist. LEXIS 161557 (ED MO, Nov. 18, 2014), a Missouri federal district court permitted a Muslim inmate to proceed against a jail sergeant, but not against other defendants, in his complaint that he was denied halal food, a "hardback" Qur'an, a "prayer rug" and access to religious services with an Imam.  His Establishment Clause claim based on the absence of Muslim clergy on the authorized clergy list was dismissed.

In Pegues v. Billingsley, 2014 U.S. Dist. LEXIS 161842 (CD IL, Nov. 19, 2014), an Illinois federal district court permitted a "vegetarian Ethiopian Jewish" pre-trial detainee to proceed with his complaint that he has been denied pastoral care from any religious volunteers, and has been denied the opportunity to meet with religious leaders in retaliation for his filing complaints.

Court Enjoins South Carolina's Refusal To Recognize Same-Sex Marriages From Elsewhere

As previously reported, on Nov. 12 in Wilson v. Condon, a South Carolina federal district court struck down South Carolina's ban on issuing licenses for same-sex marriages. Attempts to stay effectiveness of the decision failed. (See prior posting.)  Six days later, in a decision that has been less noticed, a different South Carolina federal district court judge entered a permanent injunction against enforcing South Carolina's ban on recognition of same-sex marriages validly performed in other jurisdictions.  In Bradacs v. Haley, (D SC, Nov. 18, 2014), the court concluded that "South Carolina’s denial of legal recognition to the marriages of same-sex couples who were married in other states or jurisdictions violates the Equal Protection and Due Process Clauses...." However the court refused to hold that the ban violates the Constitution's Full Faith and Credit Clause. WXLT reported on the decision.

Egyptian Court Acquits First Doctor Charged With Female Genital Mutilation

The Guardian on Thursday reported that the first doctor in Egypt to be brought to trial under a 2008 law on charges of female genital mutilation has been acquitted:

Raslan Fadl, a doctor and Islamic preacher in the village of Agga, northern Egypt, was acquitted of mutilating Sohair al-Bata’a in June 2013. The 12-year-old died during the alleged procedure, but Fadl was also acquitted of her manslaughter.

No reason was given by the judge, with the verdict being simply scrawled in a court ledger, rather than being announced in the Agga courtroom.

Sohair’s father, Mohamed al-Bata’a, was also acquitted of responsibility. Police and health officials testified that the child’s parents had admitted taking their daughter to Fadl’s clinic for the procedure.

Despite his acquittal, the doctor was ordered to pay 5,001 Egyptian pounds (about £450) to Sohair’s mother for her daughter’s manslaughter, after the pair reached an out-of-court settlement.

In rural areas, both Muslims and Christians support FGM, believing it reduces adultery. 91% of married Egyptian women have been subjected to the procedure.

Montana's Same-Sex Marriage Bans Falls; Becomes 34th State To Recognize Marriage Equality

On Wednesday, a Montana federal district court issued a permanent injunction barring Montana from enforcing statutory and constitutional provisions that prevent same-sex marriages or recognition of same-sex marriages performed in other jurisdictions.  The opinion in Rolando v. Fox, (D MT, Nov. 19, 2014), granting plaintiffs' motion for summary judgement on their equal protection claim, relies heavily on the 9th Circuit's decision last month striking down same-sex marriage bans in Idaho and Nevada. (See prior posting.) The Montana federal court's injunction, made effective immediately, makes Montana the 34th state to permit same-sex marriage.

AP reported today that in the Yellowstone County clerk's office in Billings, one deputy clerk has expressed religious objections, and three others have moral objections, to issuing same-sex marriage licenses. The County Human Relations Director, after consulting with the county attorney, has exempted the four, in part citing Title VII of the 1964 Civil Rights Act barring religious discrimination in employment.  Yellowstone County Clerk Kristie Lee Boelter is unhappy with the exemptions.  There are a total of 20 deputy clerks in the office.

Muslim's Religious Discrimination Claim Against NJ Transit Dismissed

In Allison v. New Jersey Transit Corp., 2014 U.S. Dist. LEXIS 162175 (D NJ, Nov. 19, 2014), a New Jersey federal district court dismissed a claim by an African American Muslim employee of New Jersey Transit that disciplinary action taken against him amounted to religious discrimination.  Individuals who filed complaints, investigated, prosecuted and adjudicated the disciplinary actions were unaware that plaintiff was a Muslim.

Zoning Denial Did Not Create Substantial Burden Under RLUIPA

In Andon, LLC v. City of Newport News, Virginia, (ED VA, Nov. 20, 2014, a Virginia federal district court dismissed a RLUIPA challenge to the city's refusal to grant a zoning variance to allow use of a leased building as a church.  The court held that while the landowner has standing, even though it did not engage in any religious activity, the denial of a variance does not impose a substantial burden on the religious exercise of the congregation that had entered an agreement to lease the building, subject to zoning approval.

Neo-Pagan Group Gets NY Property Tax Exemption

In In the Matter of Maetreum of Cybele, Magna Mater, Inc., v. McCoy. (NY Ct. App., Nov. 18, 2014), New York's highest court, in a brief opinion, affirmed the decision of an appellate court that a neo-Pagan group is entitled to a tax exemption for property in the Town of Catskill that includes a 12-bedroom house, a caretaker's cottage, several outbuildings and an outdoor temple. The Court of Appeals said:

The Appellate Division properly granted the petitions. Petitioner adequately established its entitlement to the RPTL 420-a exemption, as the proof at the trial established that petitioner "exclusively" utilized the property in furtherance of its religious and charitable purposes.

(See prior related posting.) Courthouse News Service reports on the decision.

Supreme Court Developments On Same-Sex Marriage

Yesterday the U.S. Supreme Court issued an Order (full text) in Wilson v. Condon denying a stay of a South Carolina federal district court's decision striking down South Carolina's ban on same-sex marriage. (See prior posting.) Justices Scalia and Thomas dissented from the denial of the stay. SCOTUSblog reports on developments.

Meanwhile, the state of Louisiana filed a petition for certiorari (full text) in Robicheaux v. George, seeking to bypass the 5th Circuit Court of Appeals and obtain Supreme Court review of a Louisiana federal district court decision that upheld Louisiana's ban on same-sex marriage. (See prior posting.) SCOTUSblog reports.

High Schooler Sues After He Is Suspended For Proselytizing

The Seattle Post Intelligencer reports on a federal lawsuit filed this week on behalf of an Everett, Washington high school student who was suspended three times for handing out Christian religious tracts at school and preaching to students using an amplifying device at a school-sponsored extracurricular event. Student Michael Leal claims religious discrimination. The school says that it took action because of the disruptive nature of the Leal's activity. Pacific Justice Institute announced the filing of the lawsuit.

9th Circuit Hears Oral Arguments In Conscience Challenge To Pharmacy Board Rules

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments in Stormans, Inc. v. Weisman. (Audio of full oral arguments). In the case,  a Washington federal district court held unconstitutional the enforcement of rules of the Washington State Pharmacy Board that require pharmacies and pharmacists to dispense emergency contraception even when doing so violates a pharmacist's religious beliefs. (See prior posting.) The Oregonian reports on yesterday's oral arguments.