On Retrial Saudi Court Sentences Poet To Death For Apostasy

The Star Daily Standard yesterday reported on a Nov. 17 judgment by a Saudi Arabian court that sentenced Palestinian artist Ashraf Fayadh to death for apostasy, apparently concluding he was spreading atheism.  In his original trial, he was sentenced to 800 lashes and four years in prison on charges that his 2008 Arabic poetry book “Instructions Within” was insulting to God and religion. Also on the basis of photos in his phone, he was charged with illicit relations with women. Prosecutors appealed, seeking a harsher sentence, and the appeals court remanded for a new trial.  At that trial he was sentenced to death. According to the Daily Standard report:

While judges in the initial trial also accepted Fayadh’s repentance for anything deemed offensive or insulting to religion in his book of poetry, judges in the retrial questioned whether repentance can nullify a proscribed punishment in a case involving “hadd”, which in Islam are specific crimes such as apostasy for which punishment is considered fixed. They also wrote that Fayadh’s repentance could only be accepted by the divine, and therefor they could not consider it when weighing the verdict.

It is likely the case will be appealed again.

Recent Prisoner Free Exercise Cases

In Woods v. McClure, 2015 U.S. Dist. LEXIS 158973 (ED TX, Nov. 24, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 159291, Sept. 30, 2015) and dismissed a Rastafarian inmate's complaint that he was not permitted to properly celebrate the Rastafarian holy day, the birthday of Haile Selassie.

In Trapp v. Roden, (MA Sup. Jud. Ct., Nov. 23, 2015), the Massachusetts Supreme Judicial Court held that the closure of a Wampanoag Tribal sweat lodge at a Massachusetts prison facility, purportedly because of health concerns over the smoke it produced, violated RLUIPA as well as a 2003 settlement agreement. MassLive reports on the decision.

PennLive reports that on Tuesday, a Middle District of Pennsylvania federal district court judge, in a case on remand from the 3rd Circuit ordered the Pennsylvania Department of Corrections to comply with a June settlement agreement that requires Camp Hill prison authorities to allow Christian inmates 30 minutes of fellowship and group prayer in the dining hall on Christmas after the mainline Christmas dinner has been served and other prisoners have left.

African American Clergy Squabble Publicly Over Planned Endorsements of Donald Trump

As reported by Clutch, the Donald Trump campaign has been widely advertising a meeting on Monday between Trump and a group of well-known Black pastors. The meeting will be televised and streamed online live from the Trump Towers. Apparently a Trump campaign press release said that 100 African American religious leaders will appear with Trump on Monday to endorse him.  On Friday, a group of 114 other Black religious leaders and scholars published an Open Letter in Ebony strongly criticizing those who plan to meet with Trump, saying in part:

[A]s people of God, you know that our theology shapes our politics, and politics are a great indicator of our theology. What theology do you believe Mr. Trump possesses when his politics are so clearly anti-Black? He routinely engages in the kind of rhetoric that brings out the worst sorts of white racist aggression, not only toward Black people, but also toward Mexican-Americans and Muslim-Americans, too. Surely, we can agree that this kind of unloving and violent language does not reflect the politics of the Christ we profess?

In response to all of this, several of the clergy who plan to attend the Monday meeting made it clear that they have not committed to endorsing Trump.  According to the Daily Beast today, Bishop Clarence McClendon whose name leads the list of those advertised as planning to attend, said in a Facebook post:

I am not officially endorsing ANY candidate and when I do you will NOT need to hear it from pulpitting courtjesters who suffer from intellectual and spiritual myopia.

It is not clear that the 100 religious leaders who it was said will endorse Trump Monday are the same ones who are attending the advertised meeting.

Challenge To Gun Store's "Muslim Free Zone" Dismissed For Lack of Imminent Injury

In CAIR Florida, Inc. v. Teotwawki Investments, LLC, (SD FL, Nov. 24, 2015), a Florida federal district court dismissed a religious discrimination suit brought by a Muslim advocacy organization against a gun store and firing range whose owner announced (through a YouTube video) that it was implementing a "Muslim Free Zone."  The suit alleged that the declaration by Florida Gun Supply violates Title II of the 1964 Civil Rights Act which prohibits discrimination in places of public accommodation. (See prior posting.) The court held however that the announcement -- which was seen on national television-- did not threaten imminent harm.  The court agreed with defendant's contention that:

[T]here are no facts demonstrating that Plaintiff was (or will be) unlawfully discriminated against. There are no facts demonstrating that Plaintiff has attempted to purchase a firearm from Defendant and was denied on the basis of its religion or has attempted to attend a gun safety class and was denied on the basis of its religion or attempted to do anything at Defendant’s retail gun store and was denied on the basis of religion. And there are no allegations that Plaintiff will attempt to do any such activities at Defendant’s retail gun store in the future and be unlawfully denied on the basis of religion. Thus, Plaintiff has not alleged facts to demonstrate actual present harm or a significant possibility of future harm as required by Article III.

American Freedom Law Center, which represented defendants, issued a press release announcing the decision. Its press release described the announcement by Florida Gun Supply as a "refusal to equip Islamic terrorists." WND reports on the decision.

European Court Upholds French Hospital's Hijab Ban

The European Court of Human Rights yesterday, in a Chamber Judgment by a panel of 7 judges, upheld the decision of a French hospital to refuse to renew the employment contract of a Muslim social worker who insisted on wearing a headscarf (hijab). The full decision in Ebrahimian v. France, (ECHR, Nov. 26, 2015) is available in French (with a partial dissenting opinion in English). According to the Court's English press release on the decision:

[T]he Court found that the requirement of neutrality of public officials could be regarded as justified in principle: the State, as employer of the applicant in a public hospital, could consider it necessary that she refrain from expressing her religious beliefs in discharging her functions in order to guarantee equality of treatment of patients....  [T]he Court reiterated that while public officials enjoyed total freedom of conscience, they were prohibited from manifesting their religious beliefs in discharging their functions. Such a restriction derived from the principle of the secular nature of the State, and that of the neutrality of public services, principles in respect of which the Court had already approved a strict implementation where a founding principle of the State was involved.

The Court considered that the fact that the national courts had afforded greater weight to the principle of secularism-neutrality and the State’s interest than to Ms Ebrahimian’s interest in not having the expression of her religious beliefs restricted did not cause a problem with regard to the [European] Convention [on Human Rights].

A Chamber Judgment may be appealed to the ECHR Grand Chamber. The Scotsman reports on the decision.  [Thanks to Paul de Mello for the lead.]

Two Popes Impact Delicate International Decisions

Pope Francis yesterday spoke in Narobi, Kenya to a group of  United Nations officials (full text of speech) urging action at two upcoming international conferences. Focusing on COP21, the meeting beginning Nov. 30 in Paris on climate change, the Pope said in part:

In a few days an important meeting on climate change will be held in Paris, where the international community as such will once again confront these issues.  It would be sad, and I dare say even catastrophic, were particular interests to prevail over the common good and lead to manipulating information in order to protect their own plans and projects....

I express my hope that COP21 will achieve a global and “transformational” agreement based on the principles of solidarity, justice, equality and participation; an agreement which targets three complex and interdependent goals: lessening the impact of climate change, fighting poverty and ensuring respect for human dignity.

The Pope also spoke about the upcoming 10th Ministerial Conference of the World Trade Organization scheduled to meet in Narobi in a few days:

It is my hope that the deliberations of the forthcoming Nairobi Conference will not be a simple balancing of conflicting interests, but a genuine service to care of our common home and the integral development of persons, especially those in greatest need.  I would especially like to echo the concern of all those groups engaged in projects of development and health care – including those religious congregations which serve the poor and those most excluded – with regard to agreements on intellectual property and access to medicines and essential health care.  Regional free trade treaties dealing with the protection of intellectual property, particularly in the areas of pharmaceutics and biotechnology, should not only maintain intact the powers already granted to States by multilateral agreements, but should also be a means for ensuring a minimum of health care and access to basic treatment for all.

Meanwhile, Israeli and Arab sources differ on the political importance of a gesture by Egypt's Coptic Pope Tawadros II who yesterday left with a delegation of bishops for Jerusalem to take part in the funeral of Archbishop Anba Abraham, the Archbishop of Jerusalem.  This is the first visit of a Coptic pope to Jerusalem since 1832.  In 1979, the previous Coptic Pope barred Copts from traveling to Jerusalem, insisting they will only enter together with Muslims. The Jerusalem Post speculates that Tawadros' trip will make it increasingly difficult to maintain the ban on other Copts making a pilgrimage to Jerusalem. Zvi Mazel, a former Israeli ambassador to Egypt said that Tawadros probably got approval from Egypt's President Abdel Fattah al-Sisi who is maintaining close intelligence ties with Israel in the fight against ISIL in Sinai.

However, Gulf News quotes a Coptic Church spokesman who said that Tawadros' visit to Jerusalem, which the Church considers occupied territory, does not change the Church's position:

The Pope’s visit came as an exception. It is for offering condolences and nothing more.  Pope Tawadros II will not make any visits in the Holy Land, and he will return to Cairo immediately following the funeral prayers. Copts will only go to Jerusalem with their Muslim brethren.

British Court Says Religious Education Curriculum Must Include Non-Religious Beliefs

As reported by a British Humanist Association press release, a British High Court judge in London held yesterday that non-religious views, such as humanism, must be included in British schools' Religious Education studies.  In Fox v. Secretary of State for Education, (EWHC, Nov. 25, 2015), a judge held:

The Strasbourg jurisprudence shows that the duty of impartiality and neutrality owed by the state do not require equal air-time to be given to all shades of belief or conviction. An RE [Religious Education] syllabus can quite properly reflect the relative importance of different viewpoints within the relevant society. The same would seem to follow for a region or locality. The duty might therefore be described as one of “due” impartiality..... In addition, of course, a generous latitude must be allowed to the decision-maker as to how that works out in practical terms. But the complete exclusion of any study of nonreligious beliefs ... would not in my judgment be compatible with [the European Convention on Human Rights' provisions on the right to education].

Spain's Catholic Lawyers Sue Over Art Exhibit

In Spain, the Spanish Association of Christian Lawyers has filed a lawsuit seeking to close down a controversial art exhibit which opened in Pamplona City Hall last Friday  According to yesterday's The Local, the display-- a retrospective of the works of controversial 27-year old Spanish artist Abel Azcona-- includes a work titled "Amen" which consists of 242 holy wafers spelling out "paedophilia".  Azcona's critics claim that he stole the hosts used in the display by pretending to take Holy Communion, but then pocketing the wafers.  The lawsuit alleges that Azcona committed the crimes of desecration and crimes against religious sentiment under Spain’s Penal Code. On Tuesday evening the communion wafers disappeared as critics staged a protest, and city hall says that part of the display will not be replaced.

President Issues Proclamation for Thanksgiving 2015

Last week President Obama issued a Presidential Proclamation-- Thanksgiving Day 2015. It reads in part:

In the same spirit of togetherness and thanksgiving that inspired the Pilgrims and the Wampanoag, we pay tribute to people of every background and belief who contribute in their own unique ways to our country's story.  Each of us brings our own traditions, cultures, and recipes to this quintessential American holiday -- whether around dinner tables, in soup kitchens, or at home cheering on our favorite sports teams -- but we are all united in appreciation of the bounty of our Nation.  

Amicus Brief Filed In Appeal of Bankruptcy Stay of Jewish Religious Court Proceedings

As previously reported, in August a New York federal bankruptcy court held in the case of In re Congregation Birchos Yosef that the statutory automatic stay of proceedings against a debtor that is triggered by the filing of a petition in a bankruptcy reorganization applies to invalidate proceedings against a debtor and its principals in a Jewish religious court (beis din). That decision was appealed to the federal district court. Last week an interesting amicus brief (full text) was filed in that appeal by 3 well-known law professors and a former bankruptcy court judge urging reversal of the bankruptcy court's decision.  The 23-page brief argues in part:

given the intensely religious nature of the beis din proceeding, and the conceded inability of the beis din to enforce its rulings in any secular court, any effort by a bankruptcy tribunal to restrain the Bais Chinuch and other individuals from invoking the beis din as a parallel non-coercive forum of religious conscience violates the Free Exercise Clause of the First Amendment, the provisions of the Religious Freedom Restoration Act (hereafter RFRA), and the Bankruptcy Code.

[Thanks to Max Raskin for the lead.]

Groups Say Texas Refusal To Accept Syrian Immigrants Infringes Religious Liberty of Resettlement Agencies

In an article yesterday, the New Republic reports that a number of faith-based refugee resettlement groups in Texas believe that the state's Health and Human Services Commission is infringing their religious liberty.  In a Nov. 19 letter, the Commission's Executive Commissioner told resettlement agencies that they should discontinue immediately any plans they have to resettle Syrian refugees in Texas.  This follows a Nov. 16 letter (full text) from Texas Gov. Greg Abbott to President Obama telling the President that Texas will not accept any Syrian refugees out of fear that they could be terrorists. Bee Moorhead, executive director of Texas Impact/Texas Interfaith Center for Public Policy, criticizes the Governor's position, saying:

Religious freedom is now the rhetorical currency of the right, but it’s turning out to be in implementation that what’s politically expedient for the right is not affirmative of religious freedom.

Obama Criticizes Growing Anti-Muslim Sentiment In United States

At his White House press conference yesterday (full text) with President Hollande of France, President Obama again criticized the anti-Muslim sentiment in the United States that has surfaced in the wake of ISIL's attacks in Paris, saying:

... [A]nother part of defeating terrorists like ISIL, is upholding the rights and freedoms that define our two great republics.  That includes freedom of religion.  That includes equality before the law.  There have been times in our history, in moments of fear, when we have failed to uphold our highest ideals, and it has been to our lasting regret.  We must uphold our ideals now.  Each of us, all of us, must show that America is strengthened by people of every faith and every background.

Russian Court Says Scientology Does Not Qualify As A Religious Organization

In Russia, the Moscow City Court yesterday in affirming a lower court decision backed the Ministry of Justice's efforts to close down the Church of Scientology.  According to AFP, the court ruled that since the Church has registered its name as a trademark in the United States, it cannot call itself a religious organization. The Church says it will appeal to Russia's Supreme Court.

Kim Davis' Case Continues to Defy Finality

The controversy surrounding Rowan County, Kentucky, Clerk Kim Davis' refusal to issue marriage license to same-sex couples is not over.  As previously reported, after being released from custody on contempt charges, Davis allowed others in her office to issue licenses, but only with revised wording. On Nov. 13, outgoing Governor Steven Beshear filed a response (full text) with the federal district court that had held Davis in contempt stating that:

those altered licenses are not fully consistent with Kentucky statute, but such deviations do not render the marriages ineffective.  Thus, the Third-Party Defendants have and will continue  to  recognize  as  valid  those  marriages  solemnized  pursuant  to  the  altered licenses for purposes of the governmental rights, benefits, and responsibilities conveyed by the Executive Branch agencies over which Governor Beshear exercises supervisory control.

This led the ACLU to file a motion (full text) on Nov. 20 urging to court to require licenses to be issued in their original unaltered form, stating:

As Governor Beshear has now recognized, Davis’ actions have created considerable uncertainty regarding the legality of the altered marriage licenses.  They impose significant and ongoing harm on Rowan County couples who are legally eligible to marry but now face doubt and fear that a marriage solemnized pursuant to an altered marriage license could be held invalid at some unknown time in the future. And Davis’ actions effectively brand the altered licenses with a stamp of animus against gay people. This Court can and should eliminate the uncertainty and harm by enforcing its prior orders....

Meanwhile, accordidng to the Nov. 6 International Business Times, Republican Kentucky Gov.-elect Matt Bevin says that when he is sworn in on Dec. 8, he will issue an executive order removing county clerks' names from state marriage licenses, hoping that this will resolve the problem.

Localities Adjusting Nativity Displays To Avoid Constitutional Problems

As the Christmas season approaches, cities and counties that traditionally placed Nativity Scenes on government property are now responding to constitutional challenges to them. Either in response to demand letters or to actual litigation, one of two types of responses is typical: (1) transfer the nativity scene to private ownership and display of  on private property; or (2) surrounding the nativity scene with numerous secular displays.

In Wadena, Minnesota, the nativity display previously placed in a public park was sold to the Wadena Ministerial Association for $25 and will be placed on a lawn across from the town's hospital.  Forum News Service reported yesterday that a town resident is also inviting others to display nativity scenes, attempting to break the record for the most creches displayed in one area.

In Franklin County, Indiana, the county avoided losing a lawsuit (see prior posting) by adopting an ordinance allowing county resident to erect their own displays on the courthouse lawn alongside the nativity scene. AP reported yesterday that the county has approved 9 displays, including one of George Washington, Benjamin Franklin and Thomas Jefferson huddled around a manger holding the Bill of Rights.

UPDATE: Fox19 reports that the banner put up by Freedom From Religion Foundation proclaiming "There are no gods, no angels, no heaven or hell" was stolen from the Franklin County Courthouse grounds over the Dec. 5 weekend.

Major British Theater Chains Reject Church of England Ad

The three largest movie chains in Britain-- Odeon, Cineworld and Vue-- all have policies against accepting political or religious advertising. Invoking these provisions, the theater chains have refused a 60 second advertisement produced by the Church of England promoting its JustPray.uk website.  According to Sunday's Guardian, the ad which the Church wanted to run before the showing of Star Wars: The Force Awakens (to be released Dec. 18) depicts each line of the Lord's Prayer being said by a different person, beginning with the Archbishop of Cantebury. The Church complained that this refusal chills free speech, and the Church's position has attracted some unexpected backers, including atheist (but free speech advocate) Richard Dawkins. [Thanks to Seth Tillman for the lead.]

Israel's Rabbinical High Court To Consider Retroactive Conversion Revocation Case

Times of Israel and Haaretz report on an appeal filed last week with Israel's Rabbinical High Court seeking reversal of a lower religious court's decision handed down in 2012 that retroactively invalidated a Christian woman's 1983 conversion to Judaism. The lower court's action was taken because the woman was not living the Orthodox Jewish life-style she had promised to lead at the time of her conversion. The appeal is being pursued by the woman's daughter because it calls into question her and her young daughter's religious status. It is expected that the High Court will reverse the invalidation because it usually refuses to retroactively invalidate conversions.

Recent Articles of Interest

From SSRN:

• Robin Boyle, Employing Trafficking Laws to Capture Elusive Leaders of Destructive Cults, (St. John's Legal Studies Research Paper No. 15-0030 (Nov. 2015)).
• Ruthann Robson, Justice Ginsburg's Obergefell v. Hodges, (University of Missouri-Kansas City Law Review, 2015).
• Kevin M. Barry, Jennifer Levi, Jennifer, Neelima Vanguri & Brian Farrell, A Bare Desire to Harm: Transgender People and the Equal Protection Clause, (Boston College Law Review, Forthcoming).
• Serena Mayeri, Marriage (In)Equality and the Historical Legacies of Feminism, (California Law Review Circuit, Vol. 6, Pg. 126, 2015).
• Ryan H. Nelson, Sexual Orientation Discrimination Under Title VII after Baldwin v. Foxx, (72 Wash. & Lee L. Rev. Online 255 (2015)).
• Abdul Azeez Maruf Olayemi, Abdul Majeed Hamzah Alabi & Ahmad Hidayah Buang, Islamic Human Rights Law: A Critical Evaluation of UIDHR & CDHRI in Context of UDHR, (Journal of Islam, Law and Judiciary, Vol. 1, Issue 3, 2015, pp. 27-36).
• Abdul Azeez Maruf Olayemi,  Aznan Hasan, Uzaimah Ibrahim & Ahmad Hidayah Buang, Non-Interest (Islamic) Liquidity Management in the Nigerian Non-Interest Banking: A Legal Study from the Experience of Malaysia, ([2015] 1 SHR, Shariah Report (A Journal on Islamic Law, Banking & Finance), Malaysian Current Law Journal (MCLJ)).

From SmartCILP:

• Peter Nash Swisher, "I Now Pronounce You Husband and Wives": The Case for Polygamous Marriage After United States v. Windsor and Burwell v. Hobby Lobby Stores, 29 BYU Journal of Public Law 299-325 (2015).

Recent Prisoner Free Exercise Cases

In In re Pima County Mental Health No. MH64461112, 2015 Ariz. App. Unpub. LEXIS 1364 (AZ App., Nov. 10, 2015), an Arizona appeals court rejected appellant's claim that because she was receiving treatment in accordance with the tenets of Scientology the trial court should not have ordered her to continue to receive court-ordered mental health treatment.

In Schlemm v. Wall, 2015 U.S. Dist. LEXIS 155714 (WD WI, Nov. 18, 2015). a Wisconsin federal district court refused to allow a Native American inmate to amend his complaint to add a claim for damages, and ordered the case to proceed only as to declaratory and injunctive relief under RLUIPA as to plaintiff's complaint regarding venison for use during the Navajo Tribe Ghost Feast and wearing a multi-colored headband while praying in his cell and during group religious ceremonies.

In Brown v. Major, 2015 U.S. Dist. LEXIS 155632 (D SC, Nov. 18, 2015), a South Carolina federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 155804, Oct. 30, 2015) and dismissed a Muslim inmate's complaint that he was denied a Kosher diet, the opportunity to pray in common areas, and a Quran.

Settlement Requires 1st Amendment Training For Hawaiian Police

On Nov. 16, a Hawaii federal district court approved a settlement agreement (full text) in Goodhue v. County of  Maui. In the lawsuit, a pastor and his wife charged that their First Amendment rights were infringed when police hired to provide security prevented them from handing out religious literature on sidewalks outside the Maui Fair.  As summarized in an ACLU press release:

As part of the settlement agreement, the County of Maui has dropped its appeal to the 9th Circuit Court of Appeals, and, for three years, will conduct additional specialized training for current and new Maui Police Department (“MPD”) officers on upholding the 1st Amendment in public spaces.