Catholic Diocese of Duluth Files For Bankruptcy Reorganization

The Catholic Diocese of Duluth announced yesterday that it has filed on an emergency basis for bankruptcy protection in order to reorganize under Chapter 11.  The move comes after a jury last month found the Diocese liable for  $4.9 million in a clergy abuse case dating back to 1978. (See prior posting.) As reported by AP, the diocese faces five other sex abuse lawsuits that have already been filed, and has received notices of claims in 12 more.  Minnesota's 2013 Child Victims Act opened a statute of limitations window that closes next May for suit to be filed on old abuse claims. Plaintiff's attorney says that the bankruptcy stay delays attempts to force release of church documents on clergy sex abuse. A hearing on a motion to force release had been scheduled for December 17.  The Diocese's vicar general said that the filing safeguards the Diocese's limited assets, allows it to continue its day-to-day work, and ensures that all victims share justly in the resources available. This is the 15th U.S. diocese or religious order to file for bankruptcy reorganization.

Judge Rejects Challenge To Florida's School Voucher Program

According to AP, yesterday a Florida state trial court judge refused to grant a preliminary injunction against operation of the state's two main school voucher programs. State Circuit Judge George Reynolds held that plaintiffs lacked standing to challenge the program that provides private school tuition for children with disabilities.  He concluded that the other program that provides tuition assistance to low income families did not run afoul of state constitutional provisions, even though they allowed vouchers for attendance at religiously affiliated schools.  Another suit broadly challenging the adequacy of state funding for education however is still moving forward.

Virginia Jury Awards Muslim Cabbie $350,000 in Religiously Motivated Assault Case

Washington Post reports that a Fairfax County, Virginia civil jury yesterday awarded $100,000 in compensatory damages and $250,000 in punitive damages to a Muslim cab driver who was suffered a broken jaw in an assault by a passenger after the passenger engaged in a diatribe against the Muslim religion. The assault by Ed Dahlberg, a Fairfax County businessman, on cab driver Mohamed Salim was captured in part on video.  The jury found that Dahlberg's actions were motivated by animosity toward Salim's religion.

Donald Trump Calls For Ban on Muslims Entering United States

Acting in contradiction to the policy approach urged yesterday by President Obama (see prior posting), Republican front-runner Donald Trump this afternoon issued a statement (full text) calling for a complete ban on Muslims entering the United States.  The statement reads:

Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country's representatives can figure out what is going on. According to Pew Research, among others, there is great hatred towards Americans by large segments of the Muslim population. Most recently, a poll from the Center for Security Policy released data showing "25% of those polled agreed that violence against Americans here in the United States is justified as a part of the global jihad" and 51% of those polled, "agreed that Muslims in America should have the choice of being governed according to Shariah." Shariah authorizes such atrocities as murder against non-believers who won't convert, beheadings and more unthinkable acts that pose great harm to Americans, especially women.

Mr. Trump stated, "Without looking at the various polling data, it is obvious to anybody the hatred is beyond comprehension. Where this hatred comes from and why we will have to determine. Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life. If I win the election for President, we are going to Make America Great Again."

European Court Upholds Hungary's Refusal To Award Damages To Dismissed Pastor

Last week in a Chamber Judgment, the European Court of Human Rights held by a 4-3 vote that there had not been a violation of the European Convention on Human Rights, Sec. 6(1), when Hungary refused to adjudicate a dispute between a pastor and his Hungarian Calvinist Church.  At issue were claims by a pastor who had been terminated by the Church for stating in a local newspaper that State subsidies had been paid unlawfully to a Calvinist boarding school.  In Nagy v. Hungary, (ECHR, Dec. 1, 2015), a majority of the court, with fragmented reasoning spanning two opinions, concluded that there had not been a denial of the right to a hearing in the civil courts, particularly when a claim could have been brought in ecclesiastical courts.  Three judges dissented, saying in part:

[I]t is more than doubtful that it would be possible at all to show that (and how) the settlement, by a State court, of the pecuniary dispute between the applicant and the Calvinist Church could pose a “real” and “substantial” risk to that church’s autonomy.

The Chamber Judgment may be appealed to the Grand Chamber. ADF issued a press release on the decision.

Focus On the U.S. Muslim Community In the Wake of the San Bernardino Shootings

Last night, just days after the San Bernardino killings, President Obama addressed the nation on issues of terrorism and keeping the country safe. (Full text of Oval Office speech). A portion of his remarks addressed the relationship of all Americans with the American Muslim community:

We cannot turn against one another by letting this fight be defined as a war between America and Islam. That, too, is what groups like ISIL want. ISIL does not speak for Islam. They are thugs and killers, part of a cult of death, and they account for a tiny fraction of more than a billion Muslims around the world — including millions of patriotic Muslim Americans who reject their hateful ideology. Moreover, the vast majority of terrorist victims around the world are Muslim. If we’re to succeed in defeating terrorism we must enlist Muslim communities as some of our strongest allies, rather than push them away through suspicion and hate.

That does not mean denying the fact that an extremist ideology has spread within some Muslim communities. This is a real problem that Muslims must confront, without excuse. Muslim leaders here and around the globe have to continue working with us to decisively and unequivocally reject the hateful ideology that groups like ISIL and al Qaeda promote; to speak out against not just acts of violence, but also those interpretations of Islam that are incompatible with the values of religious tolerance, mutual respect, and human dignity.

But just as it is the responsibility of Muslims around the world to root out misguided ideas that lead to radicalization, it is the responsibility of all Americans — of every faith — to reject discrimination. It is our responsibility to reject religious tests on who we admit into this country. It’s our responsibility to reject proposals that Muslim Americans should somehow be treated differently. Because when we travel down that road, we lose. That kind of divisiveness, that betrayal of our values plays into the hands of groups like ISIL. Muslim Americans are our friends and our neighbors, our co-workers, our sports heroes — and, yes, they are our men and women in uniform who are willing to die in defense of our country. We have to remember that.

The Muslim community is rethinking its responses to violence committed by Islamic radicals.  An AP article yesterday reports:

[S]ome in the Muslim community say a new game plan is needed. A younger generation is especially impatient with the condemnations of Islamic extremism from Muslim groups after every attack. They argue that the statements merely reinforce false notions that Muslims are collectively responsible for the violence

And a group of American Muslims last week launched the Muslim Reform Movement with a Declaration (full text) that rejects interpretations of Islam that call for violence, social injustice or politicized Islam.

Meanwhile, a Reuters poll released yesterday finds that 51% of Americans view Muslims living in the United States the same as any other community, while 14.6% are generally fearful of Muslims living in the U.S. However 34.7% say they are fearful of "a few groups and individuals" in the Muslim community.  Some 69% of Republicans surveyed and 48% of Democrats favor closing mosques suspected of having extremist ties.

Recent Articles of Interest and New Bibliography

From SSRN:

• Jens T. Theilen, Towards Acceptance of Religious Pluralism: The Federal Constitutional Court's Second Judgment on Muslim Teachers Wearing Headscarves, (German Yearbook of International Law 58 (2015)).
• Julia Rackow, From Conflict to Cooperation: The Relationship between Karlsruhe and Strasbourg, (in Katja S Ziegler, Elizabeth Wicks and Loveday Hodson (eds), The UK and European Human Rights: A Strained Relationship?, (Hart, 2015) (draft version)).
• Luke Beck, When Is an Office or Public Trust 'Under the Commonwealth' for the Purposes of the Religious Tests Clause of the Australian Constitution?, (Monash University Law Review, Vol. 41, No. 1, pp. 17-39, 2015).
• Haroun Rahimi, The Customary Practice of Gerawee in Afghanistan: A Case for Transitioning to Real Equity-Based Finance, (Indonesian Journal of International & Comparative Law, 2015).

From SmartCILP:

• M. Cherif Bassiouni, Misunderstanding Islam on the Use of Violence, 37 Houston Journal of International Law 643-677 (2015).
• Bonnie Honig, The Laws of the Sabbath (poetry): Arendt, Heine, and the Politics of Debt, 5 University of California Irvine Law Review 463-482 (2015).
• Karen A. Jordan, The Contraceptive Mandate: Compelling Interest or Ideology?, 41 Journal of Legislation 1-64 (2014-15).
• Yehiel S. Kaplan, Immigration Policy of Israel: The Unique Perspective of a Jewish State, 31 Touro Law Review 1089-1135 (2015).
• James A. Sonne, Domestic Applications of Sharia and the Exercise of Ordered Liberty, 45 Seton Hall Law Review 717-759 (2015).
• Gila Stopler, The Right to an Exclusively Religious Education--The Ultra-Orthodox Community in Israel in Comparative Perspective, 42 Georgia Journal of International & Comparative Law 743-796 (2014).
• Shaheer Tarin, An Analysis of the Influence of Islamic law on Saudi Arabia's Arbitration and Dispute Resolution Practices, [Abstract], 26 American Review of International Arbitration 131-154 (2015).
• Christopher Blain, Employing One's "Talents": The Power of Innovative Bond Transactions to Finance Catholic Nonprofits, 33 Journal of Law  Commerce 207-238 (2015).
• Philip Hamburger, Exclusion and Equality: How Exclusion From the Political Process Renders Religious Liberty Unequal, 90 Notre Dame Law Review 1919-1980 (2015).

Bibliography:

• The 2015 Law and Religion Bibliography, a 35-page bibliography of books, articles and blogs published in 2015, has been distributed as part of the AALS Section on Law and Religion Dec. 2015 Newsletter.

Hawaii Supreme Court Requires New Hearing For Proposed Telescope On Sacred Land

In Mauna Kea Anaina Hou v. Board of Land and Natural Resources, (HI Sup. Ct., Dec. 2, 2015), the Hawaii Supreme Court vacated on due process grounds a decision by the state's Board of Land and Natural Resources that allowed the University of Hawaii to construct a 30 meter telescope on land sacred to Native Hawaiians.  At issue was a "next generation" large telescope to be built on Mauna Kea, a dormant volcano on the island of Hawaii.  The court held that the Board acted improperly in approving the permit for the telescope, with construction merely delayed until a contested hearing on objections was held.  The majority held that the due process clause of the Hawaii constitution was violated when a contested hearing was not held prior to a decision on granting the permit. A concurring opinion by Justice Pollack, joined by Justice Wilson and joined in part by Justice McKenna, held that the Board's action violated other provisions of the state's constitution as well, including Ar. XII, Sec. 7 that protects cultural and religious rights of descendants of Native Hawaiians.  Christian Science Monitor reports on the decision.

Recent Prisoner Free Exercise Cases

In Cowart v. LaCasse, 2015 U.S. Dist. LEXIS 158333 (D SC, Nov. 24, 2015), a South Carolina federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 158593, Oct. 26, 2015) and dismissed an inmate's complaint that  he believed the Common Fare diet which was marked kosher was in fact not kosher.

In Carpenter v. Extendicare Health Services, 2015 U.S. Dist. LEXIS 159876 D MN, Nov. 30, 2015), a Minnesota federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 160141, Oct. 26, 2015) and dismissed on various grounds12 claims, including a free exercise claim, against a private nursing home that incorrectly believed plaintiff was the subject of a court order barring him from release.  The court found no state action.

In Farfan v. United States, 2015 U.S. Dist. LEXIS 160086 (SD FL, Nov. 24, 2015), a Florida federal magistrate judge recommended rejecting the claim by a federal inmate that her 144 month sentence for cocaine distribution violates RFRA because "she sincerely believes that God requires her to be at home with her family in order to properly observe holidays and rituals associated with her Catholic faith." The court responded in part: "The RFRA was enacted to encourage and protect free exercise of religion, even in a prison context. But it was never intended to be a get-out-of-jail-free card."

In McKnight v. MTC, 2015 U.S. Dist. LEXIS 160398 (ND TX, Nov. 30, 2015), a Texas federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160775, Nov. 9, 2015), and dismissed an inmate's claim that his free exercise and RLUIPA rights were infringed by housing him with a homosexual inmate.

Restrictions On Anti-Gay Marriage Protester Upheld

In Braun v. Terry, (ED WI, Nov. 30, 2015), a Wisconsin federal district court rejected claims by an anti-gay marriage protester that his free speech, equal protection and due process rights were infringed when authorities restricted the area in which he could carry his signs.  The events at issue occurred on the first day that same-sex marriage licenses were issued and marriages were conducted at the Milwaukee County Courthouse.  Plaintiff complains that he was not permitted to enter the courthouse to protest, and that the area in the park outside the courthouse where he could protest was restricted. The court found the restrictions imposed reasonable, non-discriminatory and narrowly tailored.

Mayor, Councilwoman Patch Up Dispute Over Christmas Tree

According to NJ.com, on Thursday, Roselle Park, New Jersey borough council voted 4-2 to go along with Mayor Carl Hokanson and change the name of the borough's annual "Tree Lighting" to "Christmas Tree Lighting."  This led Councilwoman Charlene Storey to resign, arguing that the renaming changed the ceremony "from a non-religious event to a religious one."  The mayor said that in going back to the event's traditional name, he was just calling the tree what it is. The mayor reached out to Storey, and after they met she withdrew her resignation.  The mayor in turn set up a new committee on diversity that Storey will chair.  She says she hopes the committee will come up with a process for groups to propose additions to the Christmas Tree Lighting and display, as well as deal with other diversity issues.  Both Hokanson and Storey are Democrats; Storey was raised Catholic, but is now a "non-believer."

Church's Suit Challenges Tax Decision Based On Project Gone Awry

In Panama City, Florida, the Faith Christian Family Church along with Markus Bishop, its owner and former pastor, filed suit last Monday against the Bay County Property Appraiser’s Office seeking to reverse a decision that restored three of the church's properties to the tax rolls. According to the Panama City News Herald, the dispute grows out of an innovative church project gone awry:

The church “wanted, as a form of religious and charitable outreach, to create a safe venue for young persons who might otherwise be endangered or tempted by the Spring Break revelry,” the complaint states. Faith Christian’s “intended concept was to offer a party-like but wholesome atmosphere, with music, food and non-alcoholic beverages. … Charitable outreach to persons who may be in need of a welcoming and safe refuge is a core religious principle of [Faith Christian’s] religious faith and practice.”

The complaint goes on to say that a promotion entity named Spring Break Amnesia was enlisted to market the outreach mission but “apparently had its own ideas for marketing and operation” by charging a $20 admission, selling sexually explicit merchandise and hosting naked paint parties and slumber-party Sundays.

For good measure, tax officials also revoked the non-profit status of a vacant lot next to the Life Center at which the spring break project took place, as well as the non-profit status of a mansion which the church claimed was a parsonage. The church claims that removing the properties' non-profit status infringed the church's First Amendment rights.

27 Sudanese Muslims Charged With Apostasy For Rejecting the Hadith

In Khartoum, Sudan, 27 defendants are on trial for apostasy.  According to Middle East Online and the Sudan Tribune, the charges under Sec. 126 of the Sudanese Criminal Code potentially carries a death sentence, but such a sentence is unlikely to be carried out.  The defendants are charged with preaching that only the Qur'an had religious authority, and rejecting the authority of the Hadith and of Sunnah.

Christian Camp Gets Preliminary Injunction Allowing It To Use Its Buses For Released Time Program

According to Public Opinion News, a Pennsylvania federal district court on Wednesday issued a preliminary injunction permitting Joy El Ministries to go back to using its own buses for its public school Released Time Bible Program while its lawsuit challenging state regulatory contentions is pending. The lawsuit, originally filed in state court, was removed to federal court by the state because it raises federal Establishment Clause issues. (Herald Mail Media).  As previously reported, Pennsylvania State Police cited the Greencastle, Pennsylvania Christian camp for transporting students to and from school for its a once-a-week "released time" program in buses that do not  meet the standards for vehicles owned by the school district or under contract with it.  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. The camp claims its buses are not school buses and its program is not an extracurricular activity, so that it is not covered by the regulations.  The camp has been renting other buses since state police cited it for violations.

Town Brings Back Nativity Scene-- This Time With Frosty and Reindeer

Last year, the town of Dallas, North Carolina moved its traditional nativity scene from the courthouse lawn to private property down the street under threat of a lawsuit from the Freedom From Religion Foundation. However many town residents were angry over the move.  So, according to WSOCTV News yesterday, this year a nativity scene is back on the courthouse lawn.  It is larger than the former one, but also includes figures of Frosty the Snowman and reindeer.  The city attorney told the town's Board of Aldermen that under Supreme Court rulings, a nativity display is permitted if it includes secular figures. FFRF still contends that the display is improper.

First Family Lights National Christmas Tree

Reuters reports that President Obama and his family yesterday led the lighting of the National Christmas Tree across the street from the White House.  Meanwhile, on a page titled Holidays at the White House, the White House website displays this year's White House Holiday Decor-- with the theme "A Timeless Tradition."

European Commission Appoints Officials To Combat Anti-Semitism and Anti-Muslim Hatred

The European Commission announced on Tuesday that it has appointed a Coordinator on Combating Antisemitism (Katharina von Schnurbein, a German national), and a Coordinator on Combating Anti-Muslim Hatred (David Friggieri, a national of Malta).  The new positions grew out of a Colloquium on Fundamental Rights held last October. [Thanks to Law & Religion UK for the lead.]

Church Gets Preliminary Injunction Under RLUIPA For Zoning Exclusion

In Hope Rising Community Church v. Municipality of Penn Hills, 2015 U.S. Dist. LEXIS 160148 (WD PA, Nov. 30, 2015), a Pennsylvania federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 160852, Oct. 28, 2015) and granted a preliminary injunction to a church that was ordered to stop holding worship services in a warehouse building it leased in an area zoned only for "Light Industrial" uses.  The city also denied a zoning variance.  The court concluded that the city's zoning law violates RLUIPA's "equal terms" provision by not allowing churches as a permitted use in areas zoned "Light Industrial," given the other types of uses that are allowed. The court concluded that:

the City has failed to show how a religious institution would cause greater harm to the Light Industrial District and its objectives than parks, playgrounds and educational institutions [which are permitted].

Court Issues Preliminary Injunction Against School Show's Live Nativity Depiction

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, Dec. 2, 2015), an Indiana federal district court granted a preliminary injunction barring an Indiana school district from presenting its traditional live nativity scene as part of this year's school Christmas Spectacular show. The court said in part:

a reasonable observer would fairly believe that the portrayal of the living nativity scene, when viewed in the particular context, circumstances, and history of the Christmas Spectacular, conveys a message of endorsement of religion, or that a particular religious belief is favored or preferred.

The court held that the school's insertion, in response to the filing of this lawsuit, of short segments on Hanukkah and Kwanzaa did not cure the Establishment Clause problem:

the way in which Chanukah and Kwanzaa are being presented in the show in comparison to the Christmas portion in general and the nativity scene in particular actually serves to place greater emphasis on and suggest greater preference of the religious message conveyed by the nativity scene.

In its press release on the decision, FFRF says it continues to prepare for trial on the merits since the preliminary injunction applies only to this year's show.

UPDATE:  The Dec. 12 Goshen News reports that the school stayed in technical compliance with the preliminary injunction by featuring a static nativity scene using mannequins, in place of the enjoined live performance.

New Religion In Iceland Seeks To End Tax Support of Churches

According to yesterday's BBC News, in Iceland in recent weeks more than 1,000 people have registered as members of a new religious denomination, Zuism.  The relatively new religion bases its teachings on ancient Sumerian beliefs.  However its real goal is to end Iceland's parish fees-- a portion of each citizen's income tax that is allocated to the church with which the taxpayer is affiliated.  The new group also wants the government to end record keeping of citizens' religious affiliations.  The Zuist organization promises to rebate to its members any parish fees that are allocated to it. Tax authorities say any rebates will be subject to income tax.