Pres. Obama Sends Passover Greetings

Yesterday President Obama sent out a letter by e-mail conveying holiday wishes to all who are celebrating Passover. (Full text of letter.)

3rd Circuit Says Police Need Not Accommodate Officer's Khimar

In Webb v. City of Philadelphia, (3d Cir., April 7, 2009), the U.S. 3rd Circuit Court of Appeals rejected a Title VII religious discrimination claim brought by a Philadelphia police officer. Agreeing with the district court (see prior posting), the Court of Appeals held that it would impose undue hardship on the Department to require it to allow Kimberlie Webb, a Muslim, to wear a headscarf (khimar) while on duty in uniform. It agreed with the City that the uniform rule is necessary to create a perception of impartiality by citizens of all races and religions. AmLaw Daily reports on the decision, including the court's rejection of counsel's attmpt to raise a number of issues for the first time on appeal. [Thanks to Steven Sheinberg for the lead.]

Student In Israel Displays Novel Protest Over Court's Reading of Hametz Law

Passover begins tonight, and in Israel the dispute continues over how to interpret its Festival of Matzot (Prohibition of Leaven) Law, 5746-1986, (also known as the "Hametz Law"). Last year, a court held that its ban on the public display of any leavened product for sale or consumption during Passover did not prevent the sale in a closed place of business of leavened products. (See prior posting.) The Haredi (ultra-Orthodox) community is still distressed over the ruling. This week, according to Arutz Sheva, to protest the interpretation, yeshiva student Aryeh Yerushalmi entered a Tel Aviv grocery store, went to the bread section, and stripped naked (except for a sock over his private parts). He says Israeli law bans performing an indecent act in a public place, but if a grocery store is not "public" for purposes of the Hametz Law, it should not be for the indecent exposure law either. When police arrived at the scene, the student put his clothes back on. A Tel Aviv district court judge put Yerushalmi under house arrest for a week.

Cert. Denied In Establishment Clause Challenge To Navy Retirement System

Yesterday, the U.S. Supreme Court denied certiorari in Chaplaincy of Full Gospel Church v. Department of Navy, (Docket No. 08-1057) (Order List). In the case, the D.C. Circuit Court of Appeals had dismissed on standing grounds an Establishment Clause challenge by a group of non-liturgical Protestant Navy chaplains to the operation of the Navy's retirement system. Plaintiffs claimed that the system operated to favor Catholic chaplains. (See prior posting.)

Court Says Ministerial Exception Does Not Apply In Suit Against Archdiocese

In Dayner v. Archdiocese of Hartford, 2009 Conn. Super. LEXIS 606 (CT Super., March 11, 2009), a Connecticut trial court rejected a 1st Amendment free exercise challenge to its jurisdiction in a suit brought by a former principal of a Catholic girl's school against the Archdiocese and a priest. Plaintiff alleged that her firing as principal involved a breach of implied contract, breach of implied covenant of good faith, promissory estoppel, wrongful termination and negligent infliction of emotional distress as to the Archdiocese and tortious interference with business expectancies as to the priest, Father Bzdyra. The court held that the "ministerial exception" that precludes a court from adjudicating employment disputes between religious institutions and their religious leaders does not apply here because "the court will not be required to consider matters of religious belief or practice in deciding these claims."

High School Must Bus Students From Rented Catholic Building For Sex-Ed

Yesterday's Newark (NJ) Star-Ledger reports that some public school officials in Perth Amboy (NJ) apparently did not read a lease closely enough when last year the district rented an empty Catholic school six blocks from Perth Amboy High School to alleviate overcrowded classrooms. It turns out that a clause in the lease prohibits using the premises to teach doctrines contrary to those of the Catholic Church. This means that the building may not be used to teach sex education that does not promote abstinence-only. So now students must be bussed back to the high school's main building for their sex-education classes. Perth Amboy's director of health and physical education says that ironically the students are now probably remembering more of what they are taught in sex-ed classes because of what they have to go through to get the information. [Thanks to Mike Cundiff for the lead.]

New Jersey Court Issues Injunction Allowing Church To Use Building

A Superior Court judge sitting in Morris County, New Jersey issued an injunction last Friday ordering that Pastor Eric Simons be permitted to use his Randolph Christian Church's former building for services on Sunday pursuant to the terms of a contract the church entered with Bible Church International. The contract followed the sale of Randolph's former building to Bible Church. Sunday's Newark Star-Ledger reports that Bible Church International is seeking to break its 5-year contract with Randolph Christian after Pastor Simons settled charges by the state Division of Consumer Affairs that he used the proceeds of the sale of the church building to buy himself and his wife a mansion and a boat. Bible Church's pastor says Bible Church International wants to protect its reputation and does not want to be associated with Simons.

New Yorker Meets Judicial Resistance On Name Change

The Staten Island Advance reported on Sunday on the problems that Kyle Campbell is having in his attempt to get New York courts to allow him to change his name. Campbell is a member of The Nation of Gods and Earths, a religion affiliated with Nation of Islam, whose members commonly take Allah as a name. Last year Campbell's petition to change his name to "Black Cream Allah" however was denied by a Staten Island judge who ruled that the first two words are the title of a rap song with violent lyrics, and that allowing Allah as a name would be similar to bestowing religious authority. So now Campbell has filed a petition to instead change his name to "Original Kreeam Shabazz." Nation of Islam believes that the Tribe of Shabazz was an ancient Black tribe. Campbell is awaiting a decision on whether the court will permit this name.

Suit Challenges Michigan Funeral Protest Law On Unusual Facts

Last week, the ACLU announced it had filed suit in Michigan federal district court challenging Michigan's funeral protest statute, M.C.L. § 750.167d(1). The complaint (full text) in Lowden v. Claire County, (ED MI, filed 4/1/2009), alleges that Lewis and Jean Lowden were driving in the funeral procession of a close friend who had been killed in Iraq when sheriff's deputies ordered them out of the procession and arrested them because of political protest signs that were taped to their van. The signs were not directed at the funeral, but rather were criticisms of Pres. George W. Bush and his policies, and had been on the van for several years. Indeed, the Lowdens had been invited to the funeral by the deceased soldier's family, and at the church organizers of the funeral procession had placed a funeral flag on the van without commenting on the signs. The suit asks for damages and a declaratory judgment that the funeral protest law unconstitutionally infringes freedom of expression and is void for vagueness. The suit also claims that plaintiffs were subjected to an unlawful search and seizure. [Thanks to Dispatches from the Culture Wars for the lead.]

Army Chaplain Urges Day of Prayer and Fasting-- Conflicts With Passover

The head of the Army's chaplain corps, Maj. Gen. Douglas L. Carver, has issued a proclamation urging that Wednesday, April 8, be observed as a day of prayer and fasting for soldiers and their families. The day comes during the Army's 120-day stand down and unit training period to focus on suicide prevention and awareness. Baptist Press reported last week that Carver, a Southern Baptist, chose the date because Wednesday is a prayer meeting night for Southern Baptists. However April 8 is also first night of the Jewish festival of Passover that is celebrated with the Seder feast. The Public Record reported on Sunday that some Jewish members of the Army are distressed that this date was chosen. Carver said he did not consult a calendar to look for conflicts when selecting the date.

Orthodox Jewish Policy Director Appointed To President's Faith-Based Council-- [UPDATE]: 9 New Members Appointed

According to a press release today by OU, Nathan J. Diament, director of public policy for the Union of Orthodox Jewish Congregations of America, has been named by President Barack Obama to serve on the President's Advisory Council on Faith-Based and Neighborhood Partnerships. Diament was a Harvard Law School classmate of Obama, and they regularly played basketball together as law students. (See prior posting.) The Advisory Council is comprised of 25 religious and secular leaders and scholars. At least 15 others have already been appointed. (See prior posting.) Diament, who is also an adjunct professor at American University, said that he is deeply honored to be appointed to the Council and looks forward to an "opportunity to bring the Torah's timeless values into conversations seeking solutions to modern challenges."

UPDATE: The Washington Post reported Monday afternoon that a number of new members were appointed to the Advisory Council and that its first substantive meeting was held today:

Several new members come from groups representing minorities, including: Dalia Mogahed, executive director of the Gallup Center for Muslim Studies; Anju Bhargava, founder of Asian Indian Women of America and Harry Knox, head of the religion program at the Human Rights Campaign, which advocates for gays and lesbians.

Other new members include Anthony Picarello, formerly of the religious liberties law firm Becket Fund and now general counsel to the U.S. Conference of Catholic Bishops, and Rev. Peg Chemberlin, president-elect of the National Council of Churches, a sprawling ecumenical umbrella group of mostly mainline Protestants

A White House press release Monday afternoon lists all the members, including the 9 new appointees. Additional new members are Bishop Charles Blake, Nancy Ratzan and Dr. Sharon Watkins. Absent from the list of appointees was former NFL coach Tony Dungy. A previous announcement that he had been invited to join the Council stirred criticism. (See prior posting.) [Thanks to Blog From the Capital for the lead.]

Former Student Challenges University's Requirements for Counseling Practicum

Last week, a former graduate student at Eastern Michigan University [corrected] filed suit in a Michigan federal district court alleging that she was unconstitutionally dismissed from the University's graduate Counselling Program solely because her religious beliefs and expression regarding homosexual behavior contradicted those of the University's counseling department. Ward believes that homosexual behavior is immoral and can be changed. In Ward v. Members of the Board of Control of Eastern Michigan University, (ED MI, filed 4/2/2009) (full text of complaint), Julea Ward alleged that disciplinary proceedings were brought against her because in her Counseling Practicum course she referred a homosexual client to another counsellor rather than affirm and validate the client's homosexual conduct. She was told that to remain in the program she would need to undergo a "remediation" program to "see the error of her ways" and change her "belief system" on homosexual conduct. Alliance Defense Fund issued a release announcing the filing of the lawsuit. The University today refused specific comment, but said that it is a "diverse campus with a strong commitment not to discriminate on the basis of gender, race, disability, religion, sexual orientation, gender identity or expression." (Ann Arbor News.)

Obama In Turkey Stresses Respectful US-Muslim Relationship

At both a news conference today with Turkish President Abdullah Gul, and in a major address today to Turkey's Parliament, President Barack Obama spoke of US-Muslim relations. In his press conference in Ankara, according to CNN, Obama said:

I think that where there's the most promise of building stronger U.S.-Turkish relations is in the recognition that Turkey and the United States can build a model partnership in which a predominantly Christian nation, a predominantly Muslim nation -- a Western nation and a nation that straddles two continents ... that we can create a modern international community that is respectful, that is secure, that is prosperous, that there are not tensions -- inevitable tensions between cultures -- which I think is extraordinarily important....

[O]ne of the great strengths of the United States [is that it does not consider itself] a Christian nation or a Jewish nation or a Muslim nation. We consider ourselves a nation of citizens who are bound by ideals and a set of values. I think modern Turkey was founded with a similar set of principles.

In his speech to Parliament (full text from Hurriyet) Obama said:

I know that the trust that binds us has been strained, and I know that strain is shared in many places where the Muslim faith is practiced. Let me say this as clearly as I can: the United States is not at war with Islam and will never be. In fact, our partnership with the Muslim world is critical in rolling back a fringe ideology that people of all faiths reject.

But I also want to be clear that America’s relationship with the Muslim world cannot and will not be based on opposition to al Qaeda. Far from it. We seek broad engagement based upon mutual interests and mutual respect. We will listen carefully, bridge misunderstanding, and seek common ground. We will be respectful, even when we do not agree. And we will convey our deep appreciation for the Islamic faith, which has done so much over so many centuries to shape the world for the better – including my own country. The United States has been enriched by Muslim Americans. Many other Americans have Muslims in their family, or have lived in a Muslim-majority country – I know, because I am one of them.

Court Says Pro Se Prisoner Cannot Maintain Class Action

In Blast v. Fischer, 2009 U.S. Dist. LEXIS 27264 (WD NY, March 30, 2009) , plaintiff, a practitioner of Santeria, brought an action claiming that New York prison policies are being selectively applied to prevent non-mainstream religious practitioners from being able to obtain various religious items. (Plaintiff, housed in an all-male prison, is in the process of gender transition, and is referred to as "she" in the decision in accordance with her request.) In a previous decision, a different federal district judge denied appointment of counsel for plaintiff. In this decision, the New York federal district court refused to certify her suit-- brought under RLUIPA and the 1st Amendment-- as a class action on behalf of all Santeria practitioners currently in state correctional facilities. The court held: "It is well established law that class action suits cannot be maintained by pro se litigants."

Mexican Drug War Tactic Angers Santa Muerte Followers

As part of its war on the drug cartels, Mexican law enforcement is apparently destroying shrines to the "Santa Muerte"-- the Death Saint, often portrayed as a robe-covered skeleton resembling the Grim Reaper. San Jose (CA) Mercury News reported yesterday that the Death Saint is often popular with drug traffickers. However the new government campaign against the worship of Santa Muerte has angered many other believers who often use elements of Catholic ritual to worship the Saint. Last month, army troops and workers used back hoes to destroy more 30 Santa Muerte shrines in Nuevo Laredo, across the border from Laredo, Texas. The sect's archbishop, David Romo, called the destruction religious persecution. Some 200 protesters, agreeing with his position, marched in Mexico City yesterday.

UAE Proposal Would Unify Fatwa Procedures Through Federal Law

In the United Arab Emirates, the government is taking steps to bring under control the "fatwa chaos" that has resulted from religious rulings being issued by unqualified sources. The National reports today that the first step towards standardizing national fatwa procedures was taken last year when a dedicated fatwa centre was created to answer questions from the public on religious topics. Now the General Authority of Islamic Affairs and Endowments (Awqaf) has submitted a draft of new legislation for Cabinet approval. The bill would create a high committee consisting of qualified religious scholars-- particularly from the Maliki school of Islamic jurisprudence--drawn from all seven emirates. They would set federal fatwa policies, and would decide on a single federal position on major religious issues. The proposed law would also regulate those who are qualified to issue religious edicts. Proponents of the law are concerned about the confusion created by the present situation, and the promulgation of radical fatwas that do not represent the core of authentic Islam.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, Equality, Conscience, and the Liberty of the Church: Justifying the Controversiale Per Controversialius, (Villanova Law Review, Forthcoming).


• Calvin R. Massey, Church Schisms, Church Property, and Civil Authority, (March 26, 2009).


• Prakash Shah, Transnational Hindu Law Adoptions: Recognition and Treatment in Britain, (International Journal of Law in Context, Vol. 5, No. 2, 2009).


• Paul Horwitz, Demographics and Distrust: The Eleventh Circuit on Graduation Prayer in Adler v. Duval County, (University of Miami Law Review, 2009).


• Kenneth George Leonczyk, RLUIPA and Eminent Domain: How a Plain Reading of a Flawed Statute Creates an Absurd Result, (Texas Review of Law & Politics, Vol. 13, 2009).

From SmartCILP:

• Martha C. Franks, Water, Theology, and the New Mexico Water Code, 48 Natural Resources Journal 227-244 (2008).


• Mark Strasser, State Funding of Devotional Studies: A Failed Jurisprudence That Has Lost Its Moorings, 11 Journal of Law & Family Studies 1-34 (2008).


• Kelly S. Terry, Shifting Out of Neutral: Intelligent Design and the Road to Nonpreferentialism, 18 Boston University Public Interest Law Journal 67-117 (2008).


• Essays From the Honorable James J. Gilvary Symposium on Law, Religion & Social Justice: "Justice for Strangers? Legal Assistance and the Foreign Born. Introduction by Sheila F. Miller; articles by Howard F. Chang, Bruno G. Romero and Karen Denise Bradley. 34 University of Dayton Law Review 1-46 (2008).

Surprise Nominee For Civil Rights Division Head Likely To Face Some Opposition

Last week, President Obama sent to the Senate the name of Thomas Perez to serve as Assistant Attorney General for the Civil Rights Division of Justice Department. Today's Los Angeles Times says that Perez, who is currently secretary of Maryland's Department of Labor, Licensing and Regulation, will face opposition in his confirmation hearings. (Biographical information.) However approval of Perez's nomination is expected. The Perez choice came as a surprise after Obama decided not to appoint Thomas Saenz, an advisor to Los Angeles Mayor Antonio Villaraigosa, in order to avoid a confirmation fight over immigration issues. (See prior posting.) That decision has caused concern among advocates of immigration reform. (LA Weekly.)

Teacher Has Immunity In Student's Religious Discrimination Claim

In C.H. v. Rankin County School District, 2009 U.S. Dist. LEXIS 26719 (SD MS, March 30, 2009), parents of a high schooler filed suit alleging, among other things, that their son was discriminated against because of his religion. The instructor and director of an auto body class prohibited the student from returning to class when, after a suspension for alleged harassing behavior, he refused to go to counselling, saying "he only needed God and his father." Also the student and his father refused on religious grounds to sign an instructor-student classroom/lab contract, which outlined expected behavior. A Mississippi federal district court held that even if there was a constitutional violation, defendants had qualified immunity in the damage claim against them because it was not a clearly established constitutional violation.

Recently Available Prisoner Free Exercise Cases

In Harper v. Beard, 2009 U.S. Dist. LEXIS 25129 (MD PA, March 25, 2009), a Pennsylvania federal district court accepted a magistrate's recommendation to dismiss a prisoner's claim that his 1st Amendment rights were violated when authorities deprived him of a Bible. The magistrate's recommendation is available at 2009 U.S. Dist. LEXIS 30604 (Jan. 13, 2009).

In Wright v. Veda, 2009 U.S. Dist. LEXIS 24828 (ED MI, March 25, 2009), a Michigan federal district court rejected an inmate's claim that his free exercise rights were violated when his religious books were lost after shipment between prison facilities.

In Walls v. Schriro, 2008 U.S. Dist. LEXIS 108112 (D AZ, June 16, 2008), an Arizona federal district court rejected plaintiff's RLUIPA and 1st Amendment claims objecting to the denial of customized Hare Krishna meals. However the court ordered prison authorities to permit plaintiff to wear his sikha hairstyle. Damages however were denied. (See prior related posting.)

In Coble v. Butler, 2009 U.S. Dist. LEXIS 25361 (D AZ, March 18, 2009), an Arizona federal district court rejected plaintiff's claim that his free exercise rights were infringed when jail officials interfered with mail to and from his pastor.

In Junaid v. Kempker, 2009 U.S. Dist. LEXIS 25940 (ED MO, march 27, 2009), a Missouri federal district court rejected a Muslim inmate's complaints that he was denied Halal food; that members of other religious groups could not attend Muslim services; that he could not wear his religious headgear except during religious services; that the Muslim group was barred from holding religious classes and conducting fundraisers; that the prison discriminated in the hiring of chaplains; and that officials refused to accept money mailed to him because it only contained his legally-changed name.

In Henny v. Harvey, 2009 U.S. Dist. LEXIS 25977 (WD VA, March 27, 2009), a Virginia federal district court rejected plaintiff's 1st Amendment and RLUIPA claims. Plaintiff objected to officials' failure to separate NOI's Friday "Jumah" service from the Sunni Muslims' prayer service, objected to cancellation of Jumah services held in the gymnasium, and complained about pork-flavored foods served as part of the Muslim religious diet.

In Anderson v. Raemisch, 2009 U.S. Dist. LEXIS 25657 a federal district court gave a Jewish prisoner two weeks to supplement his complaint to clarify what religious materials and services he was allegedly being denied in Transition Phase status after administrative segregation.

In Thorne v. Hale, 2009 U.S. Dist. LEXIS 25938 (ED VA, March 26, 2009), a Virginia federal district court permitted plaintiff to move ahead with his claim against directors of the state's drug court program alleging that they were responsible for his entering a plea agreement in which he was required to attend religious-based AA and NA programs, and was refused permission to attend a drug treatment program more consistent with his religious beliefs.

In Harrison v. Watts, 2009 U.S. Dist. LEXIS 26009 (ED VA, March 26, 2009), a Virginia federal district court refused to grant a motion for reconsideration and held that the Nation of Gods on Earth organization is not a religion. The court thus rejected plaintiff's attempt to have NOGE treated on the same basis as other faith-based groups in prison.

In Hayes v. Tennessee, 2009 U.S. Dist. LEXIS 26411 (ED TN, March 31, 2009), a Tennessee federal district court rejected a prisoner's claim that the Christian Identity Faith should be recognized as a legitimate religion, that he be allowed to receive literature concerning his faith, and that the Department of Corrections be enjoined from adopting unconstitutional Security Threat Group criteria.