Kasich Would Create Agency To Promote Judeo-Christian Values To Counter ISIS

In a speech at the National Press Club yesterday, Ohio Governor John Kasich, a contender for the Republican presidential nomination, told his audience that if elected he would set up an agency with a mandate to promote Judeo-Christian values around the world.  According to the Huffington Post, Kasich says the agency would promote human rights, democracy and the freedom of speech, religion and association as a counter to the message of Islamic militants. Kasich would distribute the information to countries in the Middle East, and to China, Iran and Russia as part of the "battle of ideas" with ISIS.

Facebook Is Immune From Suit For Removing Sikh Group's Page In India

In Sikhs For Justice ("SFJ"), Inc. v. Facebook, Inc., (ND CA, Nov. 13, 2015), a California federal district court dismissed a lawsuit by a Sikh human rights group that objected to Facebook's blocking of access in India to the group's Facebook page.  The suit alleges that Facebook discriminated in violation of the public accommodation provisions of the 1964 Civil Rights Act when it collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state. (See prior posting.) The court held that Sec. 230 of the Communications Decency Act immunizes Facebook from liability.  That section immunizes interactive computer services from liability as a publisher of content posted by third parties.  The court agreed with Facebook that the lawsuit "is entirely based on Defendant’s blocking of the SFJ Page in India, which is publisher conduct immunized by the CDA." Courthouse News Service reports on the decision.

U.S. Catholic Bishops Debate Voters' Guide In Light of Pope Francis' Priorities

The U.S. Conference of Catholic Bishops report that among the actions taken yesterday at their Fall General Assembly was the adoption of a new introductory note to and limited revision of their quadrennial statement on political responsibility, "Forming Consciences for Faithful Citizenship." According to Religion News Service yesterday, the debate on revision of this voters' guide highlighted the split between those bishops who want to echo the priorities of Pope Francis and those who support more traditional priorities. San Diego Bishop Robert McElroy, objecting that revisions had not gone far enough, told the Assembly:

I believe that this document is gravely hobbled. Specifically, I think the pope is telling us that alongside the issues of abortion and euthanasia — which are central aspects of our commitment to transform this world — poverty and the degradation of the Earth are also central.  But this document keeps to the structure of the worldview of 2007. It does not put those there.

India's Supreme Court Orders Crematorium Moved To Save Taj Mahal From Pollution Damage

In India yesterday, the country's Supreme Court ordered an over 200-year old crematorium near the Taj Mahal to either close down or be replaced by an electric crematorium.  According to the Times of India, smoke from the wooden funeral pyres burning 500 feet away from the Taj Mahal are causing deterioration of the Taj Mahal's marble dome and minarets. The white marble dome is now yellow with pollution from the 25 cremations every day.  Pro-Hindu political parties and religious groups oppose moving the crematorium.

New Muslim Political Party Launched In Australia

In Australia yesterday, a Sydney businessman launched a new political party, the Australian Muslim Party.  According to 9News, the new party hopes to run candidates for the Senate in all states and territories next year.  Businessman Diaa Mohamed, founder of the new party, says that  it is important that the Muslim community have a political voice.  The party was formed in part in response to the recent creation of six anti-Islamic parties.  Non-Muslims are welcome to join the party.

Organization Launches 13th Annual "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its 13th annual Friend or Foe Christmas Campaign.  It says the purpose of the campaign is "to make sure Christmas is not censored in public places."  As part of the campaign, Liberty Counsel publishes its Naughty or Nice list of retailers, praising those who use "Christmas" in their products and ads, while panning those which instead use the more generic term "Holiday." The campaign also seeks to encourage governmental organizations to embrace Christmas, saying: "public officials in schools and county offices are often cowering to grinch-like atheist organizations threatening lawsuits."

Republican Candidates Express Concerns About Muslims In U.S. After Paris Terrorism

The New York Times reported yesterday on statements by Republican presidential candidates reflecting a growing suspicion of Muslims after the recent terrorism in Paris:

[Donald] Trump, who said last month that he would be open to shutting down mosques as part of the fight against Islamic State militants, reiterated on Monday that the idea should be “studied.”

“I would hate it do it but it’s something that you’re going to have to strongly consider because some of the ideas and some of the hatred, the absolute hatred, is coming from these areas”....

Ben Carson ... called on Congress to defund its program to give safe passage to Syrian refugees. The retired neurosurgeon also suggested....  “I believe that we need to put a lot more pressure on the clerics, the imams, to make a very distinct line between what ISIS, ISIL, the radical Islamic jihadists are doing, and what traditional Islam is about”....

Jeb Bush ... also expressed concern about refugees from the Middle East entering the United States and said ... Christians and Muslims who are fleeing Syria should be treated differently. “We should focus our efforts as it relates to refugees for the Christians that are being slaughtered,” Mr. Bush said.

At a news conference, President Obama particularly criticized suggestions that there should be a religious test for which refugees will be admitted.

FBI Releases 2014 Hate Crime Statistics

The FBI this morning released its report on Hate Crime Statistics 2014.  The report shows 5,479 criminal incidents motivated by bias toward race, gender, gender identity, religion, disability, sexual orientation, and ethnicity. This is down from 5,928 in 2013.  A further breakdown of the data shows that 17.1% of the single-bias incidents were motivated by religious bias.  18.7% were based on bias toward sexual orientation, and 48.3% reflected racial bias. Of the 1,140 victims of hate crimes motivated by religious bias, 56.8% were motivated by anti-Jewish bias, while 16.1% were motivated by anti-Muslim bias. 6.1% of the incidents were anti-Catholic; 2.5% were anti-Protestant; and 1.2% were anti-Atheist/Agnostic.  11% of the incidents were based on bias against other religions. [Thanks to Michael Lieberman for the lead.]

Recent Articles of Interest

From SSRN:

• Perry Dane, Foreword: On Religious Constitutionalism, (16 Rutgers Journal of Law and Religion 460 (2015)).
• Marsha B. Freeman, Liberal, Conservative, and Political: The Supreme Court's Impact on the American Family in the Uber-Partisan Era, (Journal of Gender, Race and Justice, Vol. 18, 2015).
• Haider Ala Hamoudi, 'Lone Wolf' Terrorism and the Classical Jihad: On the Contingencies of Violent Islamic Extremism, (Florida International University Law Review, Forthcoming).
• Haider Ala Hamoudi, The Ironies of Shi'i Law, ("Regulating Religion" Conference sponsored by the Centre for Asian Studies, National University, Singapore, Dec. 2015).
• Marc O. DeGirolami, Virtue, Freedom, and the First Amendment, (Notre Dame Law Review, Forthcoming).
• Giuseppe Zago, A Victory for Italian Same-Sex Couples, A Victory for European Homosexuals? A Commentary on Oliari v Italy, (Article 29, August 21, 2015).
• Muhammad Mushtaq Ahmad, The Crime of Rape and the Hanafi Doctrine of Siyasah, (Pakistan Journal of Criminology, 6:1 (2014), 161-192).
• Terry A. Maroney & Phillip J. Ackerman-Lieberman, 'As a Father Shows Compassion for His Children': Ancient and Contemporary Perspectives on Judicial Empathy, (3 Journal of Law, Religion and State, 239 (2014)).

From elsewhere:

• Vol. 35, No. 6 of the National Center for Science Education has a series of articles reflecting on the tenth anniversary of the Kitzmiller (intelligent design) decision.

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis, 2015 U.S. Dist. LEXIS 151861 (ED CA, Nov. 6, 2015), a California federal magistrate judge recommended dismissing an inmate's complaint that he was not permitted by Jewish chaplains to convert to Judaism because he was serving a life sentence.

In Womack v. Perry, 2015 U.S. Dist. LEXIS 152588 (ED CA, Nov.10, 2015), a California federal magistrate judge dismissed with leave to amend an inmate's general complaint that the warden has denied inmates in C-yard Friday services for the past 8 months.

In Atkinson v. MacKinnon, 2015 U.S. Dist. LEXIS 153033 (WD WI, Nov. 12, 2015), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that retaliatory action (reducing his prison job grade and hours) was taken when he complained of religious harassment.  The court held that plaintiff had no more administrative remedies because the warden had promised to investigate his claim.

In Spears v. Curcillo, 2015 U.S. Dist. LEXIS 153320 (MD PA, Nov. 12, 2015), a Pennsylvania federal district court permitted an inmate to move ahead with his complaint that his Bible was confiscated when he was moved into the Restricted Housing Unit.

In Holcomb v. Quinn, 2015 U.S. Dist. LEXIS 153572 (D SC, Nov. 12, 2015), a South Carolina federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 153789, Oct. 21, 2015), and dismissed without prejudice an inmate's complaint that the free exercise rights of a 3A Qabalah group were infringed when a corrections officer required them to remove the strings they wore on their left wrists.

Suit Claims Hospital's Mistake About Patient's Religion Led To Withholding Treatment

Courthouse News Service reports on a lawsuit filed last month (Oct. 13)  in a Tennessee state trial court alleging that a hospital's mistake about a patient's religious beliefs led to the patient's death.  Merle Piper was diagnosed with kidney failure, but for a number of days was denied potentially life-saving treatment because his medical chart incorrectly stated that he was a Jehovah's Witness.  Doctors though that meant he objected to such treatment.  The lawsuit against Cumberland Medical Center in Crossville, Tenn., two doctors and other John Doe defendants seeks damages for wrongful death and medical malpractice.

New Mexico Supreme Court Invalidates State Textbook Loans To Private School Students

In Moses v. Skandera, (NM Sup. Ct., Nov. 12, 2015), the New Mexico Supreme Court in a unanimous opinion upheld a state constitutional challenge to the New Mexico Instructional Material Law.  That statute allows the state to lend secular textbooks to private and parochial school students.  New Mexico's Constitution, Art. XII, Sec. 3 (a Blaine amendment provision) provides in part:

no ... funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.

Reversing the state court of appeal (see prior posting), the state Supreme Court held that this constitutional provision is more restrictive that the state or federal Establishment Clause and bars textbook loans:

Private schools benefit because they do not have to buy instructional materials with money they obtain by tuition or donations and they can divert such money to other uses in their schools. Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools

Albuquerque Journal reports on the decision.

Supreme Court Grants Review Of Texas Restrictions On Abortion Clinics

The U.S. Supreme Court today granted certiorari in the Texas abortion law case, Whole Woman’s Health v. Cole, (Docket No. 15-274, cert. granted 11/13/2015). (Order List.) Links to the 5th Circuit's opinion in the case, the petition for certiorari, the reply brief and amicus briefs are available at SCOTUSblog. According to USA Today:

The justices will decide whether tough new restrictions placed on abortion clinics and doctors in Texas constitute an "undue burden" on women seeking legal abortions and should be struck down.

The restrictions -- forcing doctors to have admitting privileges at nearby hospitals and requiring clinics to meet standards for outpatient surgery centers -- threaten to leave the state with only 10 clinics clustered in four population centers and along the Mexican border. 

Indiana Agrees To Narrow Interpretation of Sex Offender Restriction, Alleviating Religious Freedom Issue

AP reported yesterday that the ACLU of Indiana has agreed to a judge's dismissal of a lawsuit it filed (see prior posting) challenging restrictions on serious sex offenders after the state agreed to an interpretation of the law that essentially resolves the problem.  Indiana Code § 35-42-4-14 bars serious sex offenders from entering "school property," and the ACLU feared that this had the effect of prohibiting these offenders from attending worship services in churches, mosques or synagogues located on the same property as parochial schools. However now the state agrees that the ban only applies to worship services when they are held in a building owned by a private school (or leased by it).  It does not apply to worship services in the church, mosque or synagogue's own building.

Suit Charges Fatal Religious Harassment of Christian Student In Mississippi

A civil rights suit filed in a Mississippi federal district court last week claims that the failure of school officials to respond adequately to the severe religious bullying of a 12-year old Christian student led to the student's death.  The complaint (full text) in Malone v. Moss Point School District, (SD MS, filed 11/6/2015), alleges that 7th-grade student Lorel Ka'heim Malone was "bullied, teased, and harassed about his size, clothing, looks, and above all, his religious beliefs and practices." His middle-school classmates bullied him over his handing out of religious crosses, pictures of angels, and his slogan against bullying "be a hero, take a stand." The school responded to complaints about the bullying only by transferring Lorel to another math class, but did nothing to punish the students who were guilty of the bullying. In March 2014, Lorel died as the result of heart problems stemming from a physical attack by the same students who had been bullying him. The suit alleges that school officials' deliberate indifference violated Lorel's rights under the equal protection and due process clauses of the 14th Amendment. The (Biloxi, Miss.) Sun Herald reported on the lawsuit.

As Indian Prime Minister Visits Britain, Religious Minorities' Rights Are Raised

India's Prime Minister Narendra Modi, head of the Hindu nationalist Bharatiya Janata Party (Indian People's Party) began an important 3-day formal visit to Britain yesterday. However his visit has been dogged by concerns on at least two fronts regarding the rights of religious minorities in India. According to The Guardian:

In the last few months, mobs of fanatics, some linked to his party, the BJP, have lynched Muslims for eating, carrying or possessing beef, or on mere suspicion of having done so.... Most of all, however, critics say it was Modi himself who spawned the narrative of beef as a critical issue during elections last year by warning of a “pink revolution” (a widespread slaughter of cows) if his party didn’t win.

Meanwhile, Sikhs have a different concern, and have enlisted Britain's Labour Party leader Jeremy Corbyn in their cause. According to an NSO Press Release"

The office for the leader of the Labour Party has said Jeremy Corbyn will be taking up the issue of the 1984 Sikh genocide with the Indian premier during his visit to Britain this week.... [P]rior to Mr Modi’s landslide victory, he and his party had placed the blame for the killings of Sikhs on the then Congress government. Furthermore, following appointment to office Mr Modi’s Home Minister described the killings as “genocide”.... [However, according to a Sikh leader in the UK] ... "Mr Modi has done nothing to bring identified Congress leaders who urged gangs of hooligans, to kill, murder and burn Sikh men, women and children, to justice. They now freely roam the streets gloating of their achievements to the bewilderment of relatives of those murdered, as well as the wider Sikh community."

Arkansas County's Nativity Scene Violates Purpose Prong of Lemon Test

In American Humanist Association v. Baxter County, Arkansas, (WD AR, Nov. 12, 2015), an Arkansas federal district court held that a privately-owned nativity scene that has been erected on the Baxter County Courthouse lawn for the past 40 years violates the Establishment Clause, despite changes made in recent years to attempt to avoid this conclusion.  The display has long been accompanied by a Christmas tree, and in recent years by Santa Claus and reindeer figures. In 2014, the county leased the land on which the display sits for $1 to the Chamber of Commerce for the specific purpose of erecting a nativity display. It also added a sign with a disclaimer saying that the county is saluting liberty, and the display is owned and erected by private citizens.  The court held that whatever the relevance of these details under the Lemon test on whether the display has the effect of promoting religion, these details are irrelevant when the purpose of the display is predominately religious. The court said in part:

The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas." ... [Also] there is no dispute that in December 2013, Judge Pendergrass [the County CEO] denied at least two separate requests to install a banner near the creche stating "Happy Solstice."

The court in its judgment entered a declaratory judgment and injunction, and awarded $1 in nominal damages, against the county and its CEO in his official capacity. It held that the county CEO in his personal capacity had qualified immunity from a damage claim.  The court's injunction provides that  defendants must either

(1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.

Ozarks First reports on the decision.

Maine's AG Sues To Enjoin Anti-Abortion Protester

Maine's Attorney General has recently filed a civil suit against an anti-abortion protester, seeking to enjoin him from coming within 50 feet of Portland's Planned Parenthood clinic and seeking to impose a $5000 civil penalty on him.  The complaint (full text) in State of Maine v. Ingalls, (Super Ct., filed 10/30/2015), alleges that Brian Ingalls, a regular protester, violated provisions of Maine law that prohibit interfering with constitutional rights as well as a provision barring intentional interference with the delivery of health services by making noise that can be heard within the building of a health care provider.  Ingalls was arrested after he ignored police warnings and continued to yell toward Planned Parenthood's second floor examination and counseling rooms about murdering babies, aborted babies' blood, and Jesus. The Portland Press-Herald says that this is the first suit of its kind to be filed in the state.

In England, Couple Sentenced To Prison In Faith Healing Death of Their Daughter

In England yesterday, a court in Nottingham sentenced Brian and Precious Kandare to nine and one-half and eight years respectively in the faith healing death of their 8-month old daughter.  According to the Wolverhampton Express & Star,  the couple were members of the Apostolistic Church of God.  The husband was a pastor in the church.  Despite some nursing training on the part of the mother, the couple believed that evil spirits were causing their infant daughter not to thrive.  Instead of seeking medical help, they relied on ritual and prayer in accordance with the church's teaching. They ignored advice to give their daughter vitamin supplements, missed appointments for health check ups, and took the daughter to a faith healer as her condition worsened.  The daughter died of severe malnutrition.

European Court Rejects Appeal of Conviction For Comedy Performance Promoting Holocaust Denial

The European Court of Human Rights yesterday held inadmissible (i.e. dismissed at a preliminary stage as incompatible with the European Convention on Human Rights) the appeal of a conviction by a French court of a comedian charged with publicly directing insults at a person or group of persons on account of their origin or of belonging, or not belonging, to a given ethnic community, nation, race or religion.  M'Bala v. France, (ECHR, Nov. 10, 2015) (full text of decision in French) (Press Release in English) involves a comedian who at the end of a show in Paris invited a well-known Holocaust denier onto stage to receive a "prize for unfrequentability and insolence." According to the Court's press release:

The prize, which took the form of a three-branched candlestick with an apple on each branch, was awarded to him by an actor wearing what was described as a “garment of light” – a pair of striped pyjamas with a stitched-on yellow star bearing the word “Jew” – who thus played the part of a Jewish deportee in a concentration camp....

In the Court’s view, this was not a performance which, even if satirical or provocative, fell within the protection of Article 10 (freedom of expression) of the European Convention on human rights, but was in reality, in the circumstances of the case, a demonstration of hatred and anti-Semitism and support for Holocaust denial. Disguised as an artistic production, it was in fact as dangerous as a head-on and sudden attack, and provided a platform for an ideology which ran counter to the values of the European Convention.

Times of Israel reports on the decision.  [Thanks to Paul de Mello for the lead.]

Day Care Teachers Tell EEOC Their Firing Over Treatment of Transgender Child Was Religious Discrimination

At a news conference yesterday, high-profile Houston, Texas attorney Andy Taylor said that he has filed a discrimination complaint with the EEOC on behalf of the manager of a day care center who says she was fired because of her treatment of a 6-year old transgender child, and on behalf of her co-worker who was also fired.  As reported by KPRC News and the Houston Chronicle, Christian author Madeline Kirksey was fired from her Children's Lighthouse Learning Center position after she refused to comply with the instructions of the girl's male same-sex parents who said that the child, who had enrolled at the beginning of the year as a girl, should now be treated as a boy and called by a new masculine name.  Kirksey said that her religious beliefs made her approval of the change impossible.  She also contended that she had a duty to protect the child from possible bullying, and objected to the change being made without parents of others in the class first being informed.  At the press conference, attorney Taylor said in part:

To inflict upon a little 6-year-old girl the heavy decision of her sexual identity is nothing short of child abuse..... Can you only imagine the reaction of a couple of dozen 6-year-olds when they learn that Sally is all of a sudden Johnny? They may think this is a cruel game of opposite day. And are we going to have little girls running into boys' restrooms and little boys running into girls restrooms?

A spokesman for the Learning Center said that Kirksey and her co-worker were fired for other reasons and that their attorneys are misrepresenting the facts of the case.

Scientology Cannot Get Dismissal of Harassment Suit Under Texas Anti-SLAPP Statute

In Sloat v. Rathbun, (TX App., Nov. 6, 2015), a Texas appellate court held that the Church of Scientology and its officials cannot invoke the Texas Citizens Participation Act (TCPA) to obtain dismissal of a lawsuit against them alleging intentional infliction of emotional distress, invasion of privacy and tortious interference with contract. TCPA is designed to allow rapid dismissal of unmeritorious lawsuits challenging individuals' exercise of their rights of speech, petition or association.  Here plaintiff, the wife of a former high ranking Scientology official who spoke out against Scientology, claims that the Scientology defendants subjected her to relentless abuse, harassment and surveillance.  The court held that defendants have not shown that the alleged activities relate to the exercise of free speech or the rights of association or petition:

[With one exception]  the Scientology Defendants do not directly address the specific conduct Rathbun complains of, which includes following her while she went to and from work, shopping, out to dinner with friends, and walking her dog. Nor do they explain how alleged visits to Rathbun’s family members, friends, and coworkers during which they allegedly gave warnings about Rathbun’s personal safety while married to Marty Rathbun, constitute conduct covered by the TCPA. Moreover, other than deny having done so, the Scientology Defendants do not address Rathbun’s allegations that they sent a sex toy to her at work and sent flowers with a “romantic” message purportedly from her to a female co-worker.

Courthouse News Service reports on the decision.

Texas AG Opinion OK's "In God We Trust" On Police Cars

Texas Attorney General Ken Paxton last week issued Opinion No. KP-0042 (Nov. 4, 2015)  concluding that a police department or sheriff's office may display the national motto, "In God We Trust," on its patrol cars without violating the Establishment Clause.  The Attorney General's Opinion says in part:

[D]isplaying "In God We Trust" on police vehicles is a passive use of a motto steeped in our nation's history that does not coerce Citizen approval or participation.

AP reported on the Opinion.

Supreme Court Denies Review Of California Donor Disclosure Law

The U.S. Supreme Court yesterday denied certiorari in Center for Competitive Politics v. Harris, (Docket No. 15-152, cert. denied 11/9/2015). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals upheld California's requirement that in order to solicit tax deductible contributions in the state, a charity or other non-profit must file a non-public annual report that includes an unredacted IRS Form 990 Schedule B, the names and contributions of significant donors. (See prior posting.) AP reports on the Supreme Court's action.

British Employment Tribunal: Church of England Can Refuse To License Clergy Who Have Entered Same-Sex Marriage

In Pemberton v. Inwood, (Empl. Trib., Oct. 28, 2015), a British Employment Tribunal held that the Church of England had not violated the Equality Act when it refused to grant Rev. Jeremy Pemberton an Extra Parochial Ministry License that would qualify him to be appointed as a chaplain at the Sherwood Forest Hospitals.  The license was denied because Pemberton had entered into a same-sex marriage in contravention of Church of England doctrine. The Guardian last week reported on the decision. [Thanks to Law & Religion UK for the lead.] [Corrected-- an earlier version of this post had the parties reversed.]

Court Confirms Reorganization Plan of Milwaukee Archdiocese

The Milwaukee Journal-Sentinel reports that yesterday U.S. Bankruptcy Judge Susan V. Kelley confirmed the bankruptcy reorganization plan of the Archdiocese of Milwaukee.  The Archdiocese filed for bankruptcy in 2011 under the pressure of clergy sex abuse claims.  Yesterday's reorganization plan is summarized by the Wall Street Journal:

The terms of the settlement divide nearly 600 abuse victims into separate groups. About 350 victims will share the bulk of the $21 million settlement, and about another 100 victims will each receive $2,000, court papers show. About 120 remaining victims, who had previously settled with the archdiocese or otherwise didn't qualify for the settlement, won’t receive any monetary compensation. It also provides a total of $250,000 for victims who come forward in the future, plus $500,000 from the archdiocese’s parishes to provide therapy for victims in any group.

Over $20 million in legal fees have been run up during the protracted bankruptcy proceedings.  Fox News reprints a statement from the Archdiocese on the approval of the plan and a letter sent to Pope Francis on behalf of the first victims to publicly come forward-- deaf survivors who were abused at the St. John's School for the Deaf.

Appellant In Contraceptive Mandate Case Creates "Novena To Reverse HHS Mandate"

As previously reported, last week the U.S. Supreme Court granted certiorari in seven cases brought by various religious non-profits challenging the Obama Administration's accommodation for non-profits that object to furnishing contraceptive coverage in their employee health insurance plans. One of the plaintiffs that is pressing a challenge at the Supreme Court level is the Catholic pro-life organization Priests For Life. Yesterday the group announced that it had created a Novena to Reverse HHS Mandate (a series of nine prayers to be recited on successive days), and invited individuals, families, churches and schools to join in the prayer campaign.  Here are two excerpts from the Novenas:

At this moment, therefore, when our government has decided to force us to cooperate in evil, we pray for the grace to be faithful to you and to oppose the unjust laws and mandates that have been imposed upon us and our institutions.....

We pray, Lord, for our President and for the thousands of people who serve in his administration. We pray that you enlighten and guide them, and free them from the deception of evil.

Free Thought Group Responds To Ted Cruz's Views On Atheists

The Free Thought Equality Fund issued a press release yesterday decrying a statement made by Republican presidential contender Ted Cruz:

Senator Cruz made his remarks this weekend in Des Moines, Iowa, at the 2015 National Religious Liberties Conference, organized by Generations with Vision. When asked how important it is for the President of the United States to fear God, Cruz responded that “any president who doesn’t begin every day on his knees isn’t fit to be commander-in-chief of this nation.”

“By claiming that those who do not pray are not fit for office, Senator Cruz is perpetuating the prejudiced myth that humanists and atheists are not moral people,” said Bishop McNeill, manager of the Freethought Equality Fund PAC.

Michigan City Elects First Majority-Muslim City Council

Christian Science Monitor reports that Hamtramck, Michigan last week became the first U.S. city to elect a majority-Muslim city council.  Half of the 6-person city-council was up for election last Tuesday, and all 3 candidates who won were Muslim.  They join one other Muslim whose term was not up, giving Muslims four of the six council seats.  Hamtramck, a city of 22,000 in metropolitan Detroit, was historically Polish.  However now the city has a large population from Yemen (around 24%) and Bangladesh (15%) and is only 12% Polish.  It is 19% African American.  It is estimated that half of the city's population is Muslim, and it may be the first U.S. city to have a Muslim majority population. [Thanks to Scott Mange for the lead.]

Muslim Former Employee Sues Bed Bath & Beyond For Discrimination

The New York Daily News reports on a religious discrimination lawsuit filed by a former department manager at a Manhattan Bed Bath & Beyond store. In his state court lawsuit, Jose Alcantara alleges that he was subjected to months of harassment after he grew a beard that reflected his deepening Muslim religious faith. That faith was prompted by watching his mother-in-law dying from cancer.  He says colleagues continually referred to him as "terrorist" and the HR department, pressed by the store manager, ignored his complaints. He was ultimately fired for not showing up for work on 3 days which he says were supposed to be vacation days, but his schedule was altered to make it appear he was to work. The EEOC issued Alcantara a right to sue letter last July.

Recent Articles of Interest

From SSRN:

• Lotem Perry-Hazan, Curricular Choices of Ultra-Orthodox Jewish Communities: Translating International Human Rights Law to Education Policy, (Oxford Review of Education, Forthcoming).
• Mark Strasser, The Protection of Conscience: On ACA, RFRA and Free Exercise Guarantees, (82 Tennessee Law Review 345-404 (2015)).
• Jill I. Goldenziel, The Curse of the Nation-State: Refugees, Migration, and Security in International Law, (Arizona State Law Journal, 2016).
• Harry G. Hutchison, Religious Liberty for Employers as Corporations, Natural Persons or Mythical Beings? A Reply to Gans, (Penn State Law Review, Vol. 120, 2015, Forthcoming).
• Barry Sullivan, Access to Information: Citizenship, Representative Democracy, and Catholic Social Thought, (From Democracy, Culture, Catholicism: Voices from Four Continents (Fordham University Press 2015)).
• Khaled A. Beydoun, Between Indigence, Islamophobia, and Erasure: Poor and Muslim in 'War on Terror' America, (104 California Law Review ___ (2016 Forthcoming)).
• Richard J. Ross, Binding in Conscience: Early Modern English Protestants and Spanish Thomists on Law and the Fate of the Soul, (Law and History Review 33(4) (November 2015): 803-37).
• Partners for Law in Development, Piecing Together Perspectives on Witch Hunting: A Review of Literature, (2013).
• Ian Murray, The Australian Charities and Not-for-Profits Commission: Reform or Un-Reform?, (2014) 17 Charity Law and Practice Review 151

From SSRN (Obergefell decision):

• Carlos A. Ball, Bigotry and Same-Sex Marriage, (University of Missouri-Kansas City Law Review, Vol. 84, No. 3, 2016).
• Laurence H. Tribe, Equal Dignity: Speaking its Name, (Harvard Law Review Forum, Vol. 129, pp. 16-32, 2015).
• Nan D. Hunter, Interpreting Liberty and Equality Through the Lens of Marriage, (6 Cal. L. Rev. Circuit 107 (2015)).
• Cynthia Godsoe, Perfect Plaintiffs, Yale Law Journal Forum, Vol. 125, No. 136, 2015.
• Carl H. Esbeck, A Post-Obergefell America: Is a Season of Legal and Civic Strife Inevitable?, (University of Missouri School of Law Legal Studies Research Paper No. 2015-24).

From SSRN (Islamic law):

• Michael J. T. McMillen, The Arcapita Group Bankruptcy: A Restructuring Case Study, (Global Trends in Islamic Commercial Law: International Shari'ah Research Academy for Islamic Finance and Thomson Reuters Report, 2015).
• Yusuf Roque Santos Morales, A Community Development Framework Based on the Maqasid Shariah and the Millenium Development Goals, (June 4, 2015).

From SmartCILP:

• John D. Haskell & Jessica Fish, Law As Eschatology, 53 Journal of Catholic Legal Studies 185-209 (2014).
• John O. Hayward, The Free Exercise Clause: Fealty to God or Caesar?, 53 Journal of Catholic Legal Studies 211-252 (2014).

Recent Prisoner Free Exercise Cases

In Harris v. Cabe, 2015 U.S. Dist. LEXIS 148843 (ND MI, Nov. 3, 2015), a Mississippi federal district court dismissed, for failure to exhaust administrative remedies, a Muslim inmate's complaint that he was denied permission to attend religious services.

In Shabazz v. Giurbino, 2015 U.S. Dist. LEXIS 149002 (ED CA, Nov. 2, 2015), a California federal magistrate judge permitted a Muslim inmate to move ahead against two defendants with his complaint that Muslims were served vegetarian meals for breakfast and lunch, and a Halal meal only for dinner.  Three defendants were dismissed for failure to exhaust administrative remedies.

In Dunn v. Catoe, 2015 U.S. Dist. LEXIS 149146 (Nov. 3, 2015), a Texas federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 149436, Oct. 16, 2015)  and permitted a Muslim inmate to proceed with his complaint about the policy that requires an outside volunteer before inmates can hold religious meetings, and his complaints over gang infiltration of religious meetings and insufficient food during Ramadan.

In Muniz-Savage v. Addison, 2015 U.S. Dist. LEXIS 151202 (WD OK, Nov. 6, 2015) dismissed a suit by the daughter and by the former wife of an inmate who were denied rights to visit the inmate.  The daughter was the victim of her father's sex crimes.  Among the arguments rejected were that their free exercise rights were infringed because their religious beliefs required that the daughter receive blessings from her father.

Court Denies Preliminary Injunction In Challenge To Fayetteville Civil Rights Ordinance

In Fayetteville, Arkansas yesterday a state trial court judge refused to issue a temporary injunction to prevent the city's Uniform Civil Rights Protection ordinance from going into effect today. According to the Northwest Arkansas Democrat Gazette, opponents of the ordinance argued that it infringes freedom of conscience and religion of those who have religious objections to the protection of homosexual and transgender rights.  The lawsuit also contends that the Ordinance was improperly approved and submitted to voters, and that it violates Arkansas' recently enacted Act 137 which prohibits cities from enacting civil rights protections "on a basis not contained in state law." (See prior posting.) Voters approved the Ordinance in a referendum this week by a 53% -47% vote.  The court concluded that plaintiffs had failed to show irreparable harm and a likelihood of success on the merits of their claims.

Muslim Woman Can Move Ahead With Suit Against Bus Driver Who Evicted Her

In Louis v. Metropolitan Transit Authority, (ED NY, Nov. 6, 2015), a New York federal district court held that a Muslim woman, Maria Louis, could proceed to trial with her retaliation and intentional discrimination claims against a bus driver who insisted that Louis-- who was wearing a burqa that covered her face-- move further back in the otherwise empty bus.  When she refused, the driver had Louis removed by the police.  Louis claims she was standing a seat length behind the driver who called her "scary" and who ordered her to leave the bus when she told him she was a Muslim and had a right to practice her religion. The driver insists that Louis was standing illegally on the white line in the front of the bus and became confrontational when he asked her to move. He says he did not know whether he was dealing with a man or woman because of the burqa. The court dismissed claims against the MTA and the city.

Supreme Court Grants Review In 7 Cases Challenging ACA Religious Non-Profit Accommodation On Contraceptive Coverage

The U.S. Supreme Court today granted certiorari in all seven of the cases pending before it that challenge the Obama Administration's Affordable Care Act regulations accommodating religious non-profit institutions that object to furnishing contraceptive coverage in their health insurance plans. The Court also consolidated the cases for review. (Order list.) The religious hospitals, colleges and charities involved all claim that the accommodation does not go far enough and still forces them to be complicit in furnishing contraceptive coverage. The Court limited its grant of certiorari to questions of whether the regulations' impact on the religious exercise of the non-profits violates the Religious Freedom Restoration Act. Becket Fund has links to the petitions for certiorari in all the cases, as well as to the reply and amicus briefs.  The cases are Zubik v. Burwell (3rd Circuit); Priests for Life v. Department of Health & Human Services (D.C. Circuit); Roman Catholic Archbishop v. Burwell (D.C. Circuit); East Texas Baptist University v. Burwell (5th Circuit); Little Sisters of the Poor v. Burwell (10th Circuit); Southern Nazarene University v. Burwell (10th Circuit); and Geneva College v. Burwell (3rd Circuit).  All of these circuit court decisions upheld the accommodation.  The two cases from the 8th Circuit which held that the accommodation violates RFRA (see prior posting) have not yet reached the Supreme Court. The Washington Post reports on the Court's action.

Senator Hatch Criticizes Supreme Court's Establishment Clause Jurisprudence

In September, Utah Senator Orrin Hatch (former chairman of the Senate Judiciary Committee) delivered the first in a planned series of 8 speeches on the Senate floor addressing Religious Liberty.  This past Wednesday, Hatch delivered the fourth speech in that series, this one on Faith and Public Life.  The full transcript was included in a press release from Hatch's office. The speech broadly attacks the notion that the Establishment Clause creates a wall of separation between church and state. He said in part:

[T]he ratification debates clarify that the ratifiers viewed official establishment of a particular church as direct financial support for a preferred sect, wholly distinct from the non-discriminatory support and encouragement of religion in general, which the Establishment Clause was not thought to limit....  For a century and a half, this understanding of the Establishment Clause endured with little challenge....

Unfortunately, religion was not spared from the destructive judicial activism of a Supreme Court that spun wildly out of control in the mid-twentieth century. A new crop of justices, disinclined to follow the traditional judicial role of applying the law as written, instead sought to remake the law according to their left-wing worldview. From inventing new rights for criminals to mandating nearly unlimited access to abortion on demand, the Court in this period left few stones unturned in its radical rewriting of the Constitution. The longstanding understanding of the Establishment Clause was one of the mid-century Court’s first victims. Abandoning the understanding of the Clause I have previously detailed—an understanding that was clearly supported by text, structure, history, and precedent—the Court turned the Establishment Clause on its head.

Wall of Separation blog criticizes Hatch's remarks.  Video of the three prior speeches in the series by Hatch are available on YouTube: Basic Principles (Sept. 22); Religious Liberty in the U.S. (Oct. 1); Status of Religious Freedom (Oct. 8).

Ben Carson Says Egyptian Pyramids Were Joseph's Grain Storage Facilities

AP reported yesterday that Republican Presidential candidate Ben Carson disagrees with historians and archaeologists about the origins of the Egyptian pyramids.  Virtually all academics agree that the pyramids were constructed as tombs for Egypt's Pharaohs.  Carson however, referring to the Biblical story of Joseph, insists that the pyramids were built as grain storage facilities when Joseph predicted a future famine to Pharaoh and advised storing grain in anticipation of it. (Genesis 41). Carson advanced his theory 17 years ago, but stood by his contention in comments at a book signing in Florida yesterday.  The Washington Post has extensive excerpts (as well as nearly 15 minutes of video) from Carson's speech 17 years ago, delivered at the commencement ceremonies at the Seventh Day Adventist affiliated Andrews University. In it Carson more broadly defended a literal reading of the Bible. [Thanks to Tom Rutledge for the lead.]

Cert. Filed In Refusal By State To Allow Church School To Participate In Playground Grant Program

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Trinity Lutheran Church of Columbia, Inc. v. Pauley.  In the case, the U.S. 8th Circuit Court of Appeals rejected arguments that Missouri's Blaine Amendments violate the free exercise, establishment and equal protection clauses of the federal Constitution. At issue was the refusal by Missouri's Department of Natural Resources of a grant application by Trinity Church for a Playground Scrap Tire Surface Material Grant that would allow it to resurface a playground at its day care and preschool facility on church premises. (See prior posting.) ADF issued a press release announcing the filing of the petition.

Russian Appeals Court Reverses Extremist Labeling of Qur'an Excerpts

In the Russian Far East yesterday, the Sakhalin Regional Court overturned the controversial ruling of a lower court that had labeled as "extremist material" excerpts from the Qur'an that were found in the book "Prayer To God."  RT reports that the ruling of the lower court, the Yuzhno-Sakhalinst City Court, had caused outrage in the Muslim community. Meanwhile the State Duma is moving to rush through a bill proposed by President Putin that would prevent the any portions of the  holy scriptures of Russia's four established religions-- Christianity's Bible, Judaism's Tanach, Islam's Qur'an and Buddhism's Kangyur-- from being included on Russia's Federal List of Extremist Materials,.

Utah Supreme Court Hears Arguments In Suit By FLDS Victim Against UEP Trust

The Utah Supreme Court yesterday heard oral arguments in another case growing out of Utah's attempts to reform the United Effort Plan Trust-- the trust that holds much of the property in Hildale, Utah, and Colorado City, Ariz., the home of many of the members of the polygamous FLDS Church.  According to the Salt Lake Tribune, plaintiff Elissa Wall is suing the Trust for damages growing out of her 2001 forced marriage to her 19 year old cousin.  She claims that sect leader Warren Jeffs who was also at that time trustee of the UEP Trust forced her into the marriage.  She argues that Jeff's role as trustee and as sect leader cannot be separated so the Trust is also liable for his actions even now that it has a different trustee.

Minnesota Jury Awards Clergy Sex Abuse Victim $8.1 Million

In one of the largest clergy sex abuse awards on record, a Ramsey County, Minnesota jury yesterday awarded $8.1 million to a plaintiff identified as Doe 30 in his suit against the Diocese of Duluth .  According to the Minneapolis Star-Tribune, Doe 30, as an altar boy in 1978, was abused by priest James Vincent Fitzgerald who is now deceased. Fitzgerald assaulted Doe 30 for two weeks in 1978 while taking him on a trip across Minnesota. The jury found that the Diocese was 60% responsible for the negligent supervision of Fitzgerald. Fitzgerald's order, the Oblates of Mary Immaculate, who were found 40% responsible, had previously been dismissed from the case. The verdict is the first under Minnesota's 2013 Child Victims Act which created a 3-year window for previously time-barred suits to be filed.

Supreme Court Hears Oral Arguments In Indigent Prisoner Fee Case

Yesterday, the U.S. Supreme Court heard oral arguments (full transcript of arguments)  in Bruce v. Samuels, a case raising an issue important to indigent prisoners suing to challenge their conditions of confinement, including infringements on their free exercise of religion. A provision in the Prison Litigation Reform Act caps monthly payments by prisoners proceeding in forma pauperis at 20% (28 USC 1915(b)(2)).  At issue in the case is whether a prisoner who files multiple cases or appeals has his monthly payment capped at 20% of his total income, or whether he must pay 20% of his income each month for each pending case. (See prior posting.) SCOTUSblog analyzed the oral arguments, saying that some of the justices' questions surprised the lawyers. USA Today also reports on the arguments.

Kim Davis Files Opening Brief With 6th Circuit

On Monday, Rowan County, Kentucky Clerk Kim Davis filed a 126-page opening brief (full text) in her appeal of the federal district court's various rulings against her that require her office to issue marriage licenses to same-sex couples despite her religious objections to doing so.  As summarized in the Liberty Counsel press release announcing the filing, the appeal asks the 6th Circuit to reverse the following district court rulings: (1) Preliminary injunction against Davis on August 12, 2015; (2) District court’s denying a preliminary injunction against the State Defendants on August 12, 2015; (3) Expanded injunction against Davis on September 3, 2015; and (4) Contempt order against Davis on September 3, 2015. (See prior related posting.) AP reports on developments.

House Resolution Urges Stepped-Up Action Against European Anti-Semitism

On Nov. 3, the U.S. House of Representatives unanimously passed H. Res. 354 (full text) urging the U.S. government to do more to combat growing anti-Semitism in Europe.  The Resolution, in part, encourages the U.S. government to work closely with European governments, law enforcement agencies, the OSCE  and EU to "formally recognize, partner, train, and share information with Jewish community security groups to strengthen preparedness, prevention, mitigation,
and response related to anti-Semitic attacks and to support related research initiatives." The Resolution's sponsor, New Jersey Rep. Chris Smith, issued a press release providing further background.

Court Again Dismisses Moorish American's Claim of Immunity

In Bey v. City of Tampa, 2015 U.S. Dist. LEXIS 148847 (MD FL, Nov. 2, 2015), a Florida federal district court dismissed with prejudice an amended complaint by a defendant claiming that her free exercise, speech and assembly rights were infringed when the city would not allow her to display her "Moorish Religious, Heritage, and History sign of the Morocco Treaty of Peace and Friendship" without a permit. Instead of curing pleading problems that led to her original complaint being dismissed (see prior related posting), plaintiff again argued that her status as "Moorish American national" exempts her from the Tampa's permit requirements.

Houston Voters Reject Anti-Discrimination Law In Focus On Transgender Rights

Texas Tribune reports that in Houston, Texas yesterday voters rejected the city's Equal Rights Ordinance by a vote of 61% to 39%.  The Ordinance (full text) barred discrimination on the basis of sex, race, color, ethnicity, national origin, age, familial status, marital status, military status, religion, disability, sexual orientation, genetic information, gender identity, or pregnancy.  In a campaign centered in churches to obtain a referendum on the measure (see prior posting), opponents of the measure focused on its sexual orientation and gender identity provisions.  Republican leaders in the state, including the governor and lieutenant governor, supported repeal of the Ordinance.  Yesterday Lt. Governor Dan Patrick, reflecting the predominate theme of the anti-Ordinance campaign, said:

The voters clearly understand that this proposition was never about equality – that is already the law. It was about allowing men to enter women’s restrooms and locker rooms — defying common sense and common decency.

 After the vote, Houston Mayor Annise Parker, the first openly gay mayor of a major U.S. city, said:

Unfortunately, I fear that this will have stained Houston’s reputation as a tolerant, welcoming, global city.  And I absolutely fear that there will be a direct economic backlash as a result of this.

Turkey Sees First Trial Judge Presiding Wearing Headscarf

According to Daily Sabah, a female judge in Istanbul, Turkey yesterday became the first judge in the country to preside at a trial wearing a Muslim headscarf (hijab). For many years, Turkey-- because of its tradition of secularism-- banned women from wearing the headscarf in public institutions.  This past June, the High Council of Judges and Prosecutors changed the rule for judges.

Report Analyzes Political Affiliation and Public Policy Views of Various U.S. Religious Groups

The Pew Research Center yesterday released a new 265-page report (full text) with an appropriately long title: U.S. Public Becoming Less Religious-- Modest Drop in Overall Rates of Belief and Practice, but Religiously Affiliated Americans Are as Observant as Before.  The Report analyzes findings from Pew's 2014 Religious Landscape Study. Chapter 4 of the Report analyzes the views of various U.S. religious groups on a wide variety of social and political topics.  These include political party affiliation, the role of the government, government aid to the poor, environmental regulation, homosexuality, same-sex marriage, abortion, women in the workforce, childbearing out of wedlock, immigration and evolution.

Among the interesting findings is that the religiously unaffiliated (the "nones") is now the largest single religious group among those who self-identify as Democrats or as Democratic-leaning.  28% of Democrats are unaffiliated; while only 14% of Republicans are unaffiliated. The largest religious group among Republicans is Evangelical Protestants. They comprise 38% of Republicans, but only 16% of Democrats.

District Court Upholds Denial of Medicare Reimbursement To Christian Science Nursing Training Programs

In Chestnut Hill Benevolent Association v. Burwell, (D DC, Nov. 3, 2015), the D.C. federal district court upheld a ruling by the Center for Medicare Services that four Christian Science nursing facilities were not entitled to Medicare reimbursement for furnishing "approved educational activities."  The court concluded that while the Christian Science Nursing Arts Training Programs offered by these facilities are accredited by the Commission for Accreditation of Christian Science Nursing Organizations/Facilities, the Commission's standards do not meet those required by Medicare regulations.

FBI Delays Website Designed To Counter ISIS Recruiting After Complaints That It Stigmatizes Muslim Students

Think Progress reports that on Monday, the FBI at least temporarily delayed the launch of its "Don't Be A Puppet" website which was designed to undercut recruitment efforts of extremist groups such as ISIS.  As reported by the New York Times, the website "leads the viewer through a series of games and tips intended to teach how to identify someone who may be falling prey to radical extremists." However community organizations expressed concern that school teachers do not have the expertise to identify those being radicalized and that the website will stigmatize Arab and Muslim students.  The director of the Sikh Coalition complained that schoolchildren face a much greater threat from gun violence that from Muslim extremism.

New Study Examines Power of Orthodox Churches In Former Soviet Republics

The London-based Foreign Policy Centre last week (Oct. 28) released a 79-page report (full text) titled Traditional Religion and Political Power: Examining the Role of the Church in Georgia, Armenia, Ukraine and Moldova. Here is an excerpt from the report's Executive Summary:

In all four states the churches are looking to entrench their role in society and are testing the limits of their influence given that they are the most trusted institutions in each country. To varying extents they have all used a ‘traditional values’ agenda, focused primarily and most successfully on opposition to LGBTI rights, to bolster their support. The Russian Church and state have also been trying to promote this traditional values agenda as part of their ethos of ‘the Russian World’ with which they have been looking to influence the churches and societies of their ‘near abroad’. The Russian social agenda tallies with that of the orthodox communities in these four countries, though this does not always translate into geo-political support for Russia as some of the churches are keen to assert their independence. Having been pushed to the margins of society in Soviet times, the Orthodox churches have taken the opportunity to place themselves at the centre of national and political life in Georgia, Armenia, Ukraine and Moldova, a position they are unlikely to relinquish in the near future.

Eurasianet reports on the study.

NYT Investigates Religious Arbitration

The New York Times is running a series of investigative stories on the extent to which arbitration agreements are forcing individuals out of the court system into often defendant-friendly alternative dispute resolution processes.  Today's installment is titled In Religious Arbitration, Scripture Is the Rule of Law. Here is an excerpt:

For generations, religious tribunals have been used in the United States to settle family disputes and spiritual debates. But through arbitration, religion is being used to sort out secular problems like claims of financial fraud and wrongful death.

Customers who buy bamboo floors from Higuera Hardwoods in Washington State must take any dispute before a Christian arbitrator, according to the company’s website. Carolina Cabin Rentals, which rents high-end vacation properties in the Blue Ridge Mountains of North Carolina, tells its customers that disputes may be resolved according to biblical principles. The same goes for contestants in a fishing tournament in Hawaii.....

By adding a religious component, companies are taking the privatization of justice a step further. Proponents of religious arbitration said the process allowed people of faith to work out problems using shared values, achieving not just a settlement but often reconciliation.

Yet some lawyers and plaintiffs said that for some groups, religious arbitration may have less to do with honoring a set of beliefs than with controlling legal outcomes. Some religious organizations stand by the process until they lose, at which point they turn to the secular courts to overturn faith-based judgments, according to interviews and court records.

Villanova Creates New Center for Law and Religion

Villanova University School of Law yesterday announced the creation of its new Center for Law and Religion endowed by a $2 million gift from Joseph and Eleanor McCullen. The Center will sponsor innovative courses, conferences and seminars on emerging advocacy issues in law and religion. The new Center is now listed in the Religion Clause sidebar under "Academic Centers."

USCIRF Urges Secretary Kerry To Raise Religious Freedom Issues With Tajikistan

U.S. Secretary of State John Kerry is currently on a trip to various countries in Europe and Central Asia.  In anticipation of his arrival in Tajikistan today, the U.S. Commission on International Religious Freedom issued a press release yesterday strongly criticizing Tajikistan's "ongoing efforts to  control religious activity" and urged Secretary Kerry to raise religious freedom concerns with officials in Tajikistan.  USCIRF said in part:

The legal environment for religious freedom in Tajikistan has deteriorated recently, largely to the implementation of the 2009 religion law which: establishes onerous registration requirements for all religious groups; criminalizes all unregistered religious activity as well as private religious education and proselytism; requires official permission for religious groups to provide religious instruction and communicate with foreign co-religionists; and imposes state controls over the content, publication, and import of all religious materials.

The Tajik government imposes additional restrictions on Muslims such as: limiting the number and size of mosques; closing hundreds of unregistered mosques and prayer rooms; and demolishing three unregistered mosques in Dushanbe. The Tajik government pays imams’ salaries in the largest mosques and restricts the preaching of sermons to these mosques.  Muslim prayer officially is allowed only in mosques, cemeteries, homes, and shrines. As of October 2015, Tajik authorities reportedly are prohibiting government employees from attending Friday prayers.

Studies Estimate Costs To U.S. Catholic Church of Sex Scandals Are In the Billions of Dollars

The National Catholic Reporter yesterday published the results of its extensive research into the cost of the sex-abuse crisis to the Catholic Church in the United States.  In the most extensive review yet from numerous sources, the publication concluded that since 1950 the Church has paid out at least $3.99 billion in judgments and settlements, and in expenses for therapy for victims, support for offenders, attorneys' fees, child protection efforts and related costs.  And it is known that this total is low because data is not available as to certain related expenditures.

Meanwhile another study published in the Journal of Public Economics and also reported on yesterday by the National Catholic Reporter concludes that the more than 3000 scandals in Catholic dioceses around the U.S. between 1980 and 2010 has led to a decline in charitable giving to the Church and other charities of billions of dollars.  As summarized by NCR:

"The estimates suggest that each scandal caused a decline of 1.3% in the total itemized charitable giving in the affected zip code per year," Harvard-trained economist Perez-Truglia explained in an email. "Multiplying that 1.3% by the total itemized giving in the zip codes affected by the 3,000+ scandals results in a decline in itemized contributions of about $1.77 billion per year.

"But that number does not include the effect on non-itemized contributions," which account for 25 percent of all giving, according to Perez-Truglia, who is a postdoctoral researcher at Microsoft Research. "Assuming that the effect for non-itemizers is similar to the effect found for itemizers, the total cost in charitable contributions would be $2.36 billion per year."

Anti-Westboro Baptist Church Protesters Challenge City Ordinance Used Against Them

In Topeka, Kansas yesterday, Four members of the Journey 4 Justice motorcycle group pleaded not guilty in Topeka Municipal Court to the misdemeanor charge of "picketing of religious events" of the Westboro Baptist Church.  As reported by the Topeka Capital-Journal, the motorcycle group has placed themselves outside the Westboro Baptist Church for several years.  They use an American flag to shield passers-by from Westboro's well-known signs that are virulently anti-gay and which predict the country's doom.  Topeka's Municipal Code Sec. 9-45-140 bans "focused picketing" on the public street, sidewalk or other public space around a house of worship during a worship service or other religious event.  The ordinance defines "focused picketing" to include "walking in a repeated manner past or around a house of worship ... while carrying a banner, placard, or sign."  The motorcyclists want to challenge police interpretation of the ordinance. Police claim that an American flag is a "banner" under the law.  The cyclists also say that Westboro's closed service should not be included as a "worship service" under the law.  Their trial was set for December 7. The cyclists say if the judge agrees with the police, they will move their protest to private property across the street from the church.  Apparently the group is not currently represented by counsel in the case.

Forest Service Tells Interior To Cancel Leases On Sacred Blackfoot Land

Acting under the National Historic Preservation Act, last week Secretary of Agriculture Thomas Vilsack recommended in a letter (full text) to Interior Secretary Sally Jewell that 18 oil and gas leases on sacred Blackfoot Indian land in Montana be cancelled.  As reported by AP, drilling suspensions on the land have been in effect since the 1980's.  The leases are on land in the Badger-Two Medicine Traditional Cultural District located on the Lewis and Clark National Forest. The U.S. Forest Service is part of the Department of Agriculture.  One of the lease holders has sued challenging as unreasonable the 29-year delay in reviewing the lease suspension.  Last month in Solenex, LLC v. Jewell, (D DC, Oct. 8, 2015), the D.C. federal district court ordered the government to notify the court by November 23 whether it plans to cancel or lift the suspension of the lease.

UPDATE: On Nov. 28, AP reported that the Interior Department accepted the recommendation and plans to cancel a 6,200 acre lease to Solenex.  Counsel for Solenex says if the lease is cancelled, the company is entitled to compensation.

State Taxpayers May Not Intervene In Religious Theme Park's Suit Against State Officials

In Ark Encounter, LLC v. Stewart, (ED KY, Oct. 30, 2015), a Kentucky federal district court refused to permit four Kentucky taxpayers to intervene as defendants in a lawsuit by promoters of a Noah's Ark theme park who are suing Kentucky officials for refusing to grant the park sales tax rebate incentives designed to promote tourism.  The promoters plan to build a full-size replica of Noah's Ark which they say will attract hundreds of thousands of visitors. The state countered that the project has evolved into a project to promote a literal reading of the Biblical book of Genesis. The promoters say their exclusion amounts to viewpoint-based discrimination. (See prior posting.)

The intervenors are taxpayers who strongly oppose use of tax funds to promote a religious ministry and wish to enforce provisions of the Kentucky constitution that bar use of funds for that purpose. However, the district court was unconvinced, saying:

the Court is deeply concerned that too permissive a standard for intervention would allow any Kentucky taxpayer to intervene in nearly any suit involving the administration of the state’s tax laws.

The court went on to find:

The proposed intervenors have not identified how the Commonwealth’s interest in upholding the Kentucky Constitution differs from theirs such that the Commonwealth cannot represent their interests in the constitutional use of Kentucky residents’ tax dollars....

The court however did permit the proposed intervenors instead to file an amicus memorandum setting forth their arguments.

Recent Articles and Books of Interest

From SSRN:

• Anna Su, Judging Religious Sincerity, (August 21, 2015).
• Ruth Colker, Religious Accommodations for County Clerks?, (Ohio State Law Journal Furthermore, Vol. 76, 2015).
• Robert A. Katz, Indiana’s Flawed Religious Freedom Law, (49 Indiana L. Rev 37 (2015)).
• Mary Leary, Religion and Human Trafficking, (CUA Columbus School of Law Legal Studies Research Paper No. 2015-8).
• Michael Harper, Distinguishing Disparate Treatment from Disparate Impact; Confusion on the Court, (Boston University Law Review, Vol. 96, 2016, Forthcoming).
• Joseph Benjamin Landau, Roberts, Kennedy, and the Subtle Differences that Matter in Obergefell, (Fordham Law Review, Vol. 84, No. 101, 2015).
• Clare Huntington, Obergefell's Conservatism: Reifying Familial Fronts, (Fordham Law Review, Vol. 84, No. 23, 2015).
• Elizabeth B. Cooper, The Power of Dignity, (Fordham Law Review, Vol. 84, No. 3, 2015).
• R. A. Lenhardt, Marriage as Black Citizenship?, (Hastings Law Journal, Vol. 66, No. 101, 2015).

From SmartCILP:

• Joshua D. Hawley, Return to Political Theology, 90 Notre Dame Law Review 1631-1662 (2015).
• Mark Strasser, The Protection of Conscience: On ACA, RFRA and Free Exercise Guarantees, [Abstract], 82 Tennessee Law Review 345-404 (2015).
• Jessica L. Waters & Leandra N. Carrasco, Untangling the Reproductive Rights and Religious Liberty Knot, [Abstract], 26 Yale Journal of Law & Feminism 217-241 (2014).

Recent Books:

• Samuel Moyn, Christian Human Rights, (Univ. of Pennsylvania Press, Sept. 2015), reviewed at Mirror of Justice.
• Mark A. Smith, Secular Faith: How Culture Has Trumped Religion in American Politics, (Univ. of Chicago Press, Sept. 2015).

Female Bishops In UK's House of Lords Will Carry Title "Lord Bishop"

Law & Religion UK reports that last Monday as Rachel Treweek, the most senior female Bishop in the Church of England, was sworn in as a member of the House of Lords, the leader of the House of Lords ruled that she will nevertheless be referred to as "The Lord Bishop." The Church of England and the Crown Office have agreed that all Bishops in the House of Lords will be referred to in this way. Thus last Monday's Hansard refers to her as "Rachel, Lord Bishop of Gloucester." [corrected]

Recent Prisoner Free Exercise Cases

In Johnson v. Pritchard, 2015 U.S. Dist. LEXIS 144822 (MD TN, Oct. 26, 2015), a Tennessee federal magistrate judge recommended concluding that a Muslim inmate's exercise of religion was not substantially burdened when he was denied a special food tray at the Eid ul-Fitr feast because he could not afford to pay for it.

In Brame v. Vaughn, 2015 U.S. Dist. LEXIS 146113 (SD IL, Oct. 28, 2015), an Illinois federal district court permitted an inmate to move ahead with his claim that the prison chaplain refused to add him to the Passover Commemoration and refused his request for a kosher diet, in retaliation for plaintiff's previous filing of a lawsuit.

In Tucker v. Livingston, 2015 U.S. Dist. LEXIS 146482 (ED TX, Oct. 28, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 146731, Oct. 7, 2015) and dismissed an inmate's complaint that authorities did not permit members of Nation of Gods and Earth to congregate separately for religious services. The court found that this is the least restrictive means of preventing NOGE from spreading their supremacist views that promote hate crimes and violence.

In Hunter v. Corrections Corporation of America, 2015 U.S. Dist. LEXIS 147643 (SD GA, Oct. 30, 2015), a Georgia federal magistrate judge ordered defendant to provide a more adequate response in discovery to an inmate's request for admission that defendant forces plaintiff to participate in Christianity through mandatory group sessions.

In Cejas v. Brown, 2015 U.S. Dist. LEXIS 147695 (SD CA, Oct. 30, 2015), a California federal district court permitted a Buddhist inmate to move ahead with his claim that he has not been provided adequate accommodations to properly practice his faith, including access to a chaplain.

In Yah'Torah v. Hicks, 2015 U.S. Dist. LEXIS 147755 (D NJ, Oct. 29, 2015), a New Jersey federal district court dismissed a pre-trial detainee's complaint regarding restrictions on reordering fragrant oils for religious purposes, finding that plaintiff had not shown a sincerely held religious belief.

More Stabbings In Bangladesh Of Those Involved In Criticizing Islam

Last February in Bangladesh, the Bangladeshi-American blogger Avijit Roy was hacked to death in an attack by an Islamist group that objected to his secularist postings on science, religion and LGBT issues on his blog. (See prior posting.) Now, according to the New York Times, earlier today in Dhaka assailants entered the offices of Jagriti Publications which had published Avjit Roy's book"The Virus of Faith" and stabbed to death publisher Faisal Arefin Dipan.  Around the same time, several men entered the Shuddhashar publishing house and attacked Ahmed Rahim Tutul who had previously received death threats over books he had published, including one of Roy's. Tutul is in critical condition.  They also attacked two other men who were in the office with Tutul. One of those is Sudip Kumar Barman, a blogger who (under the name Ranadipam Basu) had posted on Roy's website. According to CNN, Al-Qaeda in the Indian Subcontinent (AQIS) claimed responsibility for the assaults, saying that the victims had made derogatory remarks about Islam. In Bangladesh, "hit lists" of secular writers have been circulating on the Internet.

Pakistan's Supreme Court Warns Against False Blasphemy Allegations

Earlier this week, Pakistan's Supreme Court published the opinion of its 3-judge panel which earlier this month upheld the death sentence that had been imposed on Mumtaz Qadri, a former elite force guard who in 2011 killed Salmaan Taseer, governor of Punjab Province.  Qadri acted because of Taseer's support for a pardon for Aasia Bibi, a Christian woman who had been sentenced to death for blasphemy. (See prior posting.)  The court used the opinion in Qadri v. State, (Sup. Ct. Pakistan, Oct. 7, 2015), to warn about the dangers of false blasphemy charges-- a significant problem in Pakistan.  The Court said in part.

In the following paragraphs of this judgment it shall be highlighted as to how the accused person in this case had acted on the basis of nothing but hearsay without getting his information ascertained, verified or investigated and, as Almighty Allah has warned, he has brought harm not only to another person but also to himself. Verily, such are the consequences when Almighty Allah’s warnings or commands are not heeded to....

Commission of blasphemy is abhorrent and immoral besides being a manifestation of intolerance but at the same time a false allegation regarding commission of such an offence is equally detestable besides being culpable. If our religion of Islam comes down heavily upon commission of blasphemy then Islam is also very tough against those who level false allegations of a crime. It is, therefore, for the State of the Islamic Republic of Pakistan to ensure that no innocent person is compelled or constrained to face an investigation or a trial on the basis of false or trumped up allegations regarding commission of such an offence.

The Guardian reports on the decision.

Indian Judge Concerned Over Water Pollution From Immersing of Idols

According to NDTV, in India a Justice on the Madras High Court is concerned that the traditional religious practice of immersing idols in bodies of water is having detrimental environmental effects.  At a bail hearing yesterday growing out of a clash at last month's Vinayaka Chaturthi idol immersion festival, Justice S Vaidyanathan commented:

On account of the immersion, materials like clay, bamboo, grass, wood, metals, jute, colours, painted cloth, flowers, incense sticks, dhoop, camphor and ash are released into water bodies..... It is not rational, prudent and judicious to pollute an already scarce commodity. This illiterate attitude towards water should be put to an end.

He suggested that artificial ponds might be built just for use during the festival season.

Washington Football Coach Is Latest Focus In Battle Over Prayer At School Activities

An AP report yesterday focused on Bremerton, Washington, High School assistant football coach Joe Kennedy who is quickly becoming the latest focus in the ongoing battle over prayer at public school events.  Kennedy has been praying mid-field at the end of the game since 2008, but his actions have not become a cause for controversy until last month. Needless to say, Kennedy and school officials have starkly differing narratives.

Kennedy's lawyers, the Liberty Institute, say that Kennedy is merely engaging in a personal faith practice, in which he has often been voluntarily joined by a majority of his team, other coaches and the opposing team. The school district, however, says that coaches still have duties after the game is over, and permitting Kennedy to engage in a public religious display in the midst of his duties would amount to district endorsement of religion. He has now been placed on paid administrative leave. The school district says it has offered to accommodate Kennedy by providing him a private location for him to use to pray in a way that does not interfere with his duties.  Kennedy's lawyer responds: "When it comes to religious freedom in the country, that's never been the law, that you can have religious expression, but you have to hide it somewhere." (Bremerton Patriot.)  Apparently Kennedy plans to sue claiming a denial of religious accommodation.

Meanwhile, others are getting into the act.  In October, the Freedom From Religion Foundation sent a letter to the Bremerton superintendent supporting the school district's position. (Press release.) As reported by the Christian Post, 47 members of Congress this week signed a letter (full text) supporting Kennedy. And (as reported by RT) this week the Seattle Chapter of the Satanic Temple, saying that the school has essentially turned the post-game field into a public forum for religion, wrote to school officials (full text of letter) saying: "In light of football coach Joe Kennedy’s public prayer on the Bremerton High football field at the October 18 game, The Satanic Temple of Seattle requests permission to also perform a public Satanic invocation on the football field after the next football game, at the behest of a Bremerton High student."

Suit Questions Whether Released Time Church Buses Must Meet School Bus Standards

Public Opinion News reported yesterday on a suit filed in a Franklin County, Pennsylvania trial court challenging the contention by Pennsylvania State Police that yellow buses used by a Christian camp to transport students to and from school for a once-a-week "released time" program must meet the standards for vehicles owned or under contract with a school district.  Among other things, the buses used by Camp Joy El do not have swinging stop signs attached to the side, are not marked as school buses and are not painted with the specifically required yellow paint. A state trooper stopped one of the buses for inspection in a church parking lot, cited it for 9 violations and refused to allow students to board the bus to return to school. The suit asks for a preliminary injunction and a declaratory judgment permitting the Joy El to resume using its buses. Since the citation,it has been renting other buses at a cost of over $5000 per week.

Appeals Court: Sexual Orientation Not Covered By Missouri's Ban On Sex Discrimination In Employment

In Pittman v. Cook Paper Recycling Corp., (MO App., Oct. 27, 2015), a Missouri appeals court in a 2-1 decision held that the Missouri Human Rights Act does not bar employment discrimination on the basis of sexual orientation. At issue was a hostile work environment claim by a former male employee of a recycling company. Judge Welsh's opinion held:

The clear meaning prohibiting discrimination based upon "sex" under the Missouri Human Rights Act intended by the Missouri legislature concerns discrimination based upon a person's gender and has nothing to do with sexual orientation.

Judge Clayton in a brief opinion concurred with the result only.  Judge Gabbert dissented, saying:

Where our legislature used the broad term “sex,” and that term has been defined in many realms and most recently by the EEOC to include sexual orientation, I prefer to believe that if one is looking to the legislature for guidance, the legislature’s failure to exclude sexual orientation is more telling than its failure to act to include.

Columbia Daily Tribune reports on the decision.