Lawsuits Seek To Reform Curriculum of Ultra-Orthodox Jewish Schools

The Jerusalem Post yesterday reported at length on lawsuits in New York state and Quebec, Canada to force ultra-Orthodox Jewish schools to meet government-mandated secular curriculum standards. The suit in New York was brought by Naftuli Moster, founder of YAFFED (Young Advocates For Fair Education), while the suit in Quebec was brought by Yochanan Lowen, a former member of the Satmar hassidic community. In an article last month, the New York Times reported on the issue from the perspective of Mr. Moster.  The issue has also been a heated one in Belgium where educational authorities are pressing Orthodox Jewish school on the content of their secular curriculum.

Recent Articles of Interest

From SSRN:

• Jianlin Chen, Deconstructing the Religious Free Market, (3 Journal of Law, Religion and State 1-24 (2014)).
• Russell G. Pearce & Adam Winer, From Emancipation to Assimilation: Is Secular Liberalism Still Good for Jewish Lawyers?, (in Jews and the Law (Ari Mermelstein, Victoria Saker Woeste, Ethan Zaidoff & Marc Galanter, eds. 2014)).
• Ira C. Lupu & Robert W. Tuttle, Religious Exemptions and the Limited Relevance of Corporate Identity, (in The Rise of Corporate Religious Liberty (Zoe Robinson, Chad Flanders, and Micah Schwartzman, eds.), Oxford University Press, 2015).
• Katherine Kidd Young, The Institution of Marriage: Mediation of Nature and Culture in Cross-Cultural Perspective, (December 8, 2014).
• Khaled A. Beydoun, Antebellum Islam, (58:1 Howard L.J. (2015 Forthcoming)).
• Albert D. Spalding, Faith-Based Arbitration Clauses as a Global Alternative to Dispute Resolution, (Review of Business & Finance Studies, v. 5 (2) p. 1-8, 2014).
• John M. Breen, Abortion, Religion, and the Accusation of Establishment: A Critique of Justice Stevens' Opinions in Thornburgh, Webster, and Casey, (Ohio North University Law Review, Vol. 39, No. 3, 2013).
• Steven Douglas Smith, The 'Jurisdictional' Conception of Church Autonomy, San Diego Legal Studies Paper No. 14-177, Dec. 2014).
• Gregory S. Gordon, Speech Along the Atrocity Spectrum, (Georgia Journal of International and Comparative Law, Vol. 42, No. 2, 2014).
• Elizabeth A. M. Searing, Charitable (Anti)Trust: The Role of Antitrust Regulation in the Nonprofit Sector, (Nonprofit Policy Forum, 5(2), 261–288).
• Perry Dane, Prayer is Serious Business: Reflections on Town of Greece, (Rutgers Journal of Law and Religion, Forthcoming).

From SSRN (Non-U.S. Law):

• Hanna Lerner, Critical Junctures, Religion, and Personal Status Regulations in Israel and India, (Law & Social Inquiry, Volume 39, Issue 2, 387-415, Spring 2014).
• Aristidis Tsatsos, The Geopolitical Role of Orthodox Russia within a Planetary Context -- A Hellenic Perspective?, (September 27, 2014).
• Yuko Nishitani, Global Citizens and Family Relations, (Erasmus Law Review, Vol. 7, No. 3, 2014).
• Etah Fidelis Ewane, Rwanda Redux: The Latent Genocide in the Central African Republic and the Failure to Protect, (December 3, 2014).
• Paula Gerber, Kristine Tay & Adiva and Sifris, Marriage: A Human Right for All?, (2014 36(4) Sydney Law Review 643).
• Ivor Richardson, The Calculation of Interest, (20 New Zealand Journal of Taxation Law and Policy 231, 2014).
• Gerald Waltman, Prosecuting ISIS (December 11, 2014).

From elsewhere:

• Steven H. Sholk, A Guide To Election Year Activities of Section 501(c)(3) Organizations,(2014 update, PLI).

Backgrounder On Lawsuit By NJ Methodist Congregation Against United Methodist Church

The Record today carries a long article about a lawsuit filed this summer by Alpine Community Church (in Alpine, New Jersey) against the Greater New Jersey Annual Conference of the United Methodist Church over ownership of church property. Here are some excerpts from the article:

Here in one of America’s priciest ZIP codes, a bitter dispute is bubbling at a beloved local landmark over religion and money, property and race, spilling from its pews and into the courts.

At its heart is ownership of the Alpine Community Church, a sanctuary with a storied history, millions of dollars in assets, and a tiny congregation. Its trustees have voted to cut ties with the United Methodist Church and say they want to preserve it as a church for all who want to worship there..... 

Court papers attest to the turmoil, with trustees alleging church funds were used to fuel the “luxurious lifestyle” of a former pastor appointed by the conference, causing some members to stop attending services and making donations.....

The former pastor at the center of the controversy is the Rev. Hae-Jong Kim, who roughly six years ago, in his retirement, was assigned to serve the Alpine church part time. Kim was the first Korean-American bishop in the UMC but resigned that post nearly a decade ago as part of the resolution of an unrelated complaint filed against him.

The lawsuit accuses Kim of misusing church funds; trustees allege that when evidence of forged checks, missing donations and more was presented to the conference, nothing was done....

Recent Prisoner Free Exercise Cases

In Chavis v. United States, (3d Cir., Dec. 12, 2014), the 3rd Circuit affirmed the dismissal of an inmate's claim that a correctional officer's pat down search of his genital area violated his free exercise rights because his religion prohibits homosexual activity.

In Goninan v. Holmes, 2014 U.S. Dist. LEXIS 169213 (D OR, Dec. 4, 2014), an Oregon federal magistrate judge dismissed an inmate's challenge to the prison system's ban on the Satanic Bible and certain other Satanic publications.

In Powers v. Clarke, 2014 U.S. Dist. LEXIS 170322 (ED VA, Dec. 8, 2014), a Virginia federal district court dismissed an inmate complaint that the prison system classified the Nation of Gods and Earths as a gang rather than a spiritual organization.

In Hamilton v. Carr, 2014 Cal. App. Unpub. LEXIS 8811 (CA App., Dec. 11, 2014), a California appeals court affirmed the dismissal of an inmate's claim that a correctional officer violated California's Bane Act when he pulled plaintiff's kufi cap off his head and yelled "get out of here."

Congress Gives Final Passage To Defense Authorization Act Including Provisions On Mt. Soledad Transfer

On Friday, the Senate gave final approval and sent to the President for his signature H.R. 3979, the  National Defense Authorization Act for Fiscal Year 2015 (full text). The Act includes a provision (Sec. 2852) calling for the sale of the Mt. Soledad Veteran's Memorial to the privately incorporated Mount Soledad Memorial Association.  The provision, sponsored by Sen. Diane Feinstein, is intended to end the long-running litigation challenging the Memorial's cross as a violation of the Establishment Clause. (See prior posting.) Politico reports on the Act's passage.

The Act also contains provisions regarding the National Park System, including (Sec. 3051) a requirement that the Secretary of the Interior conduct studies to determine whether various sites should be designated as national parks.  Among these sites are properties in Flushing, New York relating to the history of religious freedom during the era of the signing of the Flushing Remonstrance; and Atlanta's West Hunter Street Baptist Church (background).

The Act as passed does not include provisions in an earlier House version relating to military chaplains and religious expression. (See prior posting.)

Saperstein Confirmed As International Religious Freedom Ambassador

In a roll call vote yesterday, the U.S. Senate confirmed the nomination of Rabbi David Saperstein to be Ambassador-at-Large for International Religious Freedom.  The vote was 62-35. All but one of the "Nay" votes were cast by Republicans.  As reported by The Forward, Saperstein is the first non-Christian to hold the international religious freedom ambassadorship.  Some conservative Christian groups had opposed Saperstein, who has been director of Reform Judaism's Religious Action Center, because of his disagreement with the Supreme Court's Hobby Lobby decision and his generally liberal views on other issues. (The Blaze, July 29, 2014).

Dallas Eases Restrictions On Feeding of Homeless; Settles Lawsuit

Last year, a Texas federal district court held that Dallas'  Food Establishment Ordinance imposing strict requirements on organizations feeding the homeless violates the Texas Religious Freedom Restoration Act. (See prior posting.) On Wednesday Dallas City Council, as part of a  settlement of the lawsuit, adopted amendments lightening the burdens on those feeding the homeless.  As reported by Think Progress:

The original Dallas ordinance required charities that wished to feed the homeless to provide bathrooms and running water, effectively restricting the groups to a handful of sites rather than allowing them to go to where the need was greatest. It also required them to register with the city no matter how large or small their food program might be, with the threat of a $2,000 fine for violators.....

Instead of running water and hand-washing facilities, street feeding programs may now use hand sanitizer. They only need to notify the city if they plan to serve more than 75 people, and must abide by some basic food safety guidelines.

According to the Dallas Morning News, the city also voted to pay a total of $250,000 for damages and attorneys fees to to Big Hart Ministries Association and Rip Parker Memorial Homeless Ministry.

Facebook Ad In Burma Lands Bar Managers In Jail For Insulting Religion

A court in Yangon, Burma yesterday denied bail to the owner and two managers of VGastro, a new upscale bar and tapas restaurant in the city's embassy area who are charged with insulting religion through an ad on the bar's Facebook page.  AFP reports that the offensive ad depicted a psychedelic mock-up of the Buddha wearing DJ headphones to promote a cheap drinks night.  The three defendants were charged with violating Myanmar Penal Code Sec. 295 (defiling a sacred object with the intent to insult religion) and Sec. 295A (insulting religious beliefs through written words or representations). Each charge carries a punishment of up to two years in prison.  The court ruled that these were no-bail offenses and remanded the men into custody until the next hearing on Dec.18.  A monk speaking for the Burmese Patriot Monks Union said: "We will wait and see what action the authorities take. We will do what we need to, if the authorities do not take action."

In Germany, Humanist Students Now Can Get Holiday Excused Absence

AP reported yesterday that in Germany, the schools in Berlin have officially recognized World Humanist Day (June 21) as a holiday for which Humanist students can obtain an excused absence. This places the day on the same plane as religious holidays such as All Saints Day, Yom Kippur or Eid al-Fitr for which students of other faiths can get excused absences. [Thanks to Scott Mange for the lead.]

Colorado Supreme Court Hears Arguments On School Vouchers

The Colorado Supreme Court yesterday heard oral arguments (audio of full arguments) in Taxpayers for Public Education v. Douglas County School District.  In the case, the state court of appeals upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students can obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. (See prior posting.)  AP reports on the oral arguments.

CDC Proposes Recommendations Strongly Favoring Male Neonatal Circumcision

Last week the federal government's Centers for Disease Control released for comment (Dec. 2 Federal Register) recommendations for health-care providers who are counseling male patients and parents regarding male circumcision. (Full text of Recommendations).  The recommendations focus on the benefits of male circumcision in preventing transmission of HIV and other sexually transmitted infections, and strongly recommend neonatal circumcision of boys-- a practice consistent with Jewish and some Muslim traditions.  The recommendations are positive, but more cautious, as to circumcision of adolescent and adult males. The San Francisco Chronicle reports on reactions to the recommendations.

Polish Constitutional Tribunal Rules Ban On Ritual Slaughter Unconstitutional

Poland's Constitutional Tribunal ruled yesterday, in a 5-4 decision, that a ban on kosher and halal slaughter of animals is unconstitutional. JTA reports that the ruling came in a case filed by the Union of Jewish Religious Communities in Poland and other organizations claiming that the ritual slaughter ban that went into effect last year violates the European Convention on Human Rights. As previously reported, in late 2012 the Constitutional Tribunal held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws.  That ruling ended a $500 million industry in the country of processing halal and kosher meat for export. Poland's Parliament will now take up a bill drafted by the National Council of Agricultural Chambers that would legalize ritual slaughter. Jerusalem Post reports on the tensions between local Polish Jewish leaders and the Brussels-based European Jewish Association that arose over choice of strategies to fight the ritual slaughter ban.

In Reversal, Kentucky Denies Tax Incentives To Noah's Ark Theme Park

The Louisville Courier-Journal reported yesterday that Kentucky's Tourism, Arts and Heritage Cabinet has now turned down a request by a proposed Noah's Ark theme park for $18 million in sales tax rebate incentives, despite earlier preliminary approval of the request. The state says that Ark Encounter has changed it position on hiring and now intends to discriminate in hiring on the basis of religion. The state also says that the park has evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. The state's Tourism Secretary said:

State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion.

Attorneys for Ark Encounter say that federal and state law allow it, as a religious institution, to hire on the basis of religion, and that refusing to allow it to participate in tax incentives amounts to unconstitutional viewpoint discrimination. They say they will have no choice but to sue. (See prior related posting.)

Challenge To School Board Invocation Policy Dismissed On Standing Grounds

WIS-TV News reported yesterday on the dismissal by a Wisconsin federal district court of a challenge to the invocation policy at school board meetings in School District Five of Lexington & Richland Counties, Wisconsin.  The suit originally also challenged the District's policy on prayer at graduation (see prior posting), but the parties previously settled that claim after the school district revised its policy to allow student speakers to determine the content of their own messages. Then in Nielson v. School District Five of Lexington & Richland Counties, (D SC, Oct. 22, 2014), the federal district court dismissed claims seeking an injunction and declaratory judgment as to the school board invocations because "none of the Individual Plaintiffs attended a Board Meeting after the August 2013 Invocation Policy became effective and none remain students in District Five."  The court added, however, that plaintiffs could still pursue damage claims growing out of pre-2013 prayer practices.  But on Dec. 1, the court ordered dismissal of the action without prejudice, noting that the parties had settled the case. (Full text of dismissal order.)

Today Is International Human Rights Day

Today is International Human Rights Day-- a date set by the United Nations General Assembly in Res. 423(V) to celebrate the adoption on Dec. 10, 1948 of the Universal Declaration of Human Rights. The U.N. announced that this year's theme is "Human Rights 365." In a press release, the U.S. Commission on International Religious Freedom says it is marking the occasion by highlighting prisoners of conscience around the world, particularly those imprisoned because of their faith or belief.

UPDATE: The White House on Dec. 9 issued a Presidential Proclamation (full text) declaring Dec. 10 to be Human Rights Day and the week beginning Dec. 10 to be Human Rights Week.

2nd Circuit Dismisses Alien Tort Suit Charging Catholic Orders With Human Trafficking

The U.S. Second Circuit Court of Appeals has dismissed an Alien Tort Statute suit brought against several Catholic religious orders charging human trafficking,  In Ellul v. Congregation of Christian Brothers, (2d Cir., Dec. 8, 2014), the Second Circuit concluded that the Supreme Court's decision last year in the Kiobel case holding that the Alien Tort Statute does not apply extraterritorially requires dismissal of most of plaintiffs' claims.  The remainder must be dismissed on statute of limitations grounds. The suit alleged "shocking violations of internationally accepted norms." As described by the court:

Plaintiffs’ claims stem from an alleged “child migration” program undertaken in the aftermath of World War II.  As part of the scheme, the purpose of which was to populate Australia with “pure white stock” from Britain and “working boys” from Malta..., defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.

Mosque Proponents Sue Pennsylvania Township Over Zoning Variance Denial

CAIR-Philadephia announced yesterday that it has filed a federal lawsuit against Bensalem Township, Pennsylvania challenging its refusal to grant a zoning variance to a Muslim congregation, Bensalem Masjid, which seeks to build a mosque on property that it currently leases with an option to purchase. The complaint (full text) in The Bensalem Masjid Inc. v. Bensalem Township, (ED PA, filed 12/8/2014), contends that the Township's zoning ordinances allow houses of worship only in areas zoned Institutional (IN), and that there are no available properties zoned IN that could be used for a mosque. The complaint contends that the Township's zoning ordinances and regulations, and its action refusing a variance, violate RLUIPA, the 1st and 14th Amendments and the state's Religious Freedom Protection Act. Philadelphia Daily News reports on the lawsuit.

Senate Report on CIA Interrogation Includes Role of Religion In Prisoner Cooperation

A reported by the Washington Post, today the U.S. Senate Select Committee on Intelligence released an unclassified 525-page version of its Study of the CIA's Detention and Interrogation Program. (Full text of report). Appendix 3 in the report (.pdf pg. 488) outlines examples of inaccurate CIA testimony to the Intelligence Committee in 2007.  It includes a section captioned "The Religious Foundation for Cooperation" (.pdf pg. 511) that sets out the following inaccurate testimony given by CIA Director Michael Hayden:

This proposed program ... has been informed by our experience and it has been informed by the detainees. It's built on the particular psychological profile of the people we have and expect to get -- al-Qa'ida operatives. Perceiving themselves true believers in a religious war, detainees believe they are morally bound to resist until Allah has sent them a burden too great for them to withstand. At that point ... their cooperation in their own heart and soul becomes blameless and they enter into this cooperative relationship with our debriefers.

...we use the enhanced interrogation techniques at the beginning of this process, and it varies how long it takes, but I gave you a week or two as the normal window in which we actually helped this religious zealot to get over his own personality and put himself in a spirit of cooperation.... You recall the policy on which this is based, that we're going to give him a burden that Allah says is too great for you to bear, so they can put the burden down.

According to the Committee:

CIA records do not indicate that CIA detainees described a religious basis for cooperating in association with the CIA's enhanced interrogation technique.....

... [M]ore than two months before Abu Zubaydah began his August 2002 enhanced interrogation period, Abu Zubaydah told interrogators that "if he possessed any more information on future threats, then he would provide this information to us to help himself, claiming that 'the sharia' gives him permission to do so in his current situation.  Abu Zubaydah also made a similar statement to his interrogators approximately a week later ... stating that he had "prayed his 'Istikharah' (seeking God's guidance) and was now willing to tell what he really knew," and "that he had received guidance from God" to cooperate to "prevent his captured brothers from having a difficult time."

Most of City Council Walks Out On Atheist's Invocation

In Lake Worth, Florida last Tuesday, the mayor and three of the four city commissioners walked out of the commission chamber as atheist Preston Smith approached the podium to offer the invocation.  WPTV News reports that yesterday Mayor Pam Triolo said her action was not because Smith was an atheist, but because of a Tweet Smith allegedly authored last summer giving an offensive interpretation of scripture. Smith's invocation (video included in article) called for building a better community without religious division.

DOJ Expands Ban on Law Enforcement Profiling To Include Religion and Other Characteristics

Yesterday, U.S. Attorney General Eric Holder announced the issuance of new guidelines on profiling by federal law enforcement officials (and local officials participating in federal task forces).  The new Guidance for Federal Law Enforcement Agencies (full text) adds national origin, gender, gender identity, religion, and sexual orientation to the already existing prohibitions on racial and ethnic profiling imposed in 2003.  The 11-page document sets out both in general principles and examples guidance on when the covered characteristics can and cannot be used.

Officials may still use race, religion, ethnicity, or any of the other prohibited bases for profiling when

there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity.

Here are two interesting examples from the many set out in the new Guidance:

• A law enforcement officer who is working as part of a federal task force has received a reliable tip that an individual intends to detonate a homemade bomb in a train station during rush hour, but the tip does not provide any more information.  The officer harbors stereotypical views about religion and therefore decides that investigators should focus on individuals of a particular faith. Doing so would be impermissible because a law enforcement officer’s stereotypical beliefs never provide a reasonable basis to undertake a law enforcement or intelligence action.

• An FBI field office attempts to map out the features of the city within its area of responsibility in order to gain a better understanding of potential liaison contacts and outreach opportunities. In doing so, the office acquires information from public sources regarding population demographics, including concentrations of ethnic groups. This activity is permissible if it is undertaken pursuant to an authorized intelligence or investigative purpose. The activity would not be permitted without such an authorized purpose or in circumstances that do not otherwise meet the requirements of this Guidance.

MSNBC reports on release of the new guidelines.