11th Circuit Dismisses Christian Coalition's Suit On Non-Profit Tax Status

In Christian Coalition of Florida, Inc. v. United States, (11th Cir., Nov. 15, 2011), the 11th Circuit held that a tax refund suit needed to be dismissed as moot after the IRS refunded the disputed taxes in full. Christian Coalition of Florida ("CC-FL") sought IRS recognition as as Section 501(c)(4) social welfare organization. However IRS refused the application, concluding that CC-FL's activities primarily constitute participation in political campaigns-- an activity not permitted for 501(c)(4) organizations.  CC-FL paid the small amount of taxes due and then claimed a refund.  IRS refunded a portion of the taxes. CC-FL sued for a refund as to the remainder ($261) and also sought declaratory and injunctive relief in order to challenge the IRS determination that it was not entitled to 501(c)(4) status. Shortly after the litigation was filed, IRS refunded the remaining taxes.  The court agreed with the government that the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act preclude CC-FL from suing to obtain favorable tax status for future years. A special tax code provision (26 USC 7428) allows groups claiming Section 501(c)(3) status to obtain declaratory judgments, but the provision does not apply to 501(c)(4) organizations which do not face the same problem of losing donations when their deductibility is open to question.  Contributions to 501(c)(4) groups generally are not deductible in any event.

11th Circuit: RLUIPA "Equal Terms" Violation, But Only Nominal Damages Awarded

Covenant Christian Ministries, Inc. v. City of Marietta, Georgia, (11th Cir., Sept. 7, 2011), is an interesting RLUIPA case decided earlier this year which has just now come to my attention.  The case involves a RLUIPA challenge brought by a church to a city's zoning ordinance which prohibited religious institutions from locating in various residentially zoned areas, even though private parks, playgrounds and neighborhood recreation centers were permitted. The 11th Circuit upheld the district court's conclusion that the ordinance violates RLUIPA's "equal terms" provisions, but that plaintiff is entitled only to nominal damages.  The district court remedied the unequal treatment in the zoning law by holding that private parks, playgrounds and neighborhood recreation centers should be excluded from the residentially zoned areas, just as religious institutions were. Thus, according to the 11th Circuit, the church obtained no vested right to build its church under the ordinance's original language. Shortly after the district court's decision, the city amended its zoning law in a manner that still treats all places of assembly, religious and non-religious, alike.  They are special uses requiring special approval by city council.  According to the 11th Circuit, this change mooted plaintiff's claims for injunctive relief under the earlier law. (See prior related posting.) [Thanks to Christopher Lund via Religionlaw for the lead.]

Muslim Protesters Vandalize Monuments Donated To Maldives By Other South Asian Nations

The 17th Summit of the South Asian Association for Regional Cooperation (SAARC) was held on Nov. 10 to 11 in Addu City, Maldives.  In connection with the Summit, both Pakistan and Sri Lanka donated monuments to the Maldives.  Both monuments were promptly vandalized by protesters who claim the statues are idols that are illegal to import or display in the Maldives. The monument donated by Pakistan was set on fire and later stolen. Two men have been arrested in the incident.  However, according to Minivan News yesterday, Adhaalath Party President Sheikh Imran Abdulla said the monument "conflicts with the constitution of the Maldives, the Religious Unity Act of 1994 and the regulations under the Act because it depicted 'objects of worship' that 'denied the oneness of God'." The paper reports further:

The religious Adhaalath Party and the party of former President of Maumoon Abdul Gayoom, the Progressive Party of the Maldives (PPM), have declared those responsible for destroying the monument to be “national heroes”.

The Sri Lankan statue, a lion (representing Sri Lanka's national symbol), was doused with crude oil, according to as separate Minivan News report yesterday. Ahmed 'Marz' Saleem, PPM Council, member filed a complaint with police against the Maldives Customs Department for its allowing "idols" to be imported into the country. He says the importation violates the Police Act, Customs Act, Contraband Act and the Religious Unity Act.

UPDATE: According to Haveeru News Service (11/17), the Maldives Islamic Ministry has ordered the Foreign Ministry, the President’s Office and Addu City Council to remove monuments displaying irreligious graphic content. The Pakistani monument is the clearest example. However the President's press secretary said that "returning a gift given by another government is not an easy thing to do."

USCIRF Will Get Another Temporary Extension In Continuing Resolution

As previously reported, under the International Religious Freedom Act, the U.S. Commission on International Religious Freedom would have gone out of business on Sept. 30, 2011. However provisions in two Continuing Resolutions have kept it alive pending enactment of a two-year reauthorization bill that has been passed by the House and is pending in the Senate. The latest of the Continuing Resolutions extended USCIRF's life to this Friday, Nov. 18.  Now, however, another temporary reprieve is apparently about to be enacted.  As reported in a memo issued Monday by the chairman of the House Appropriations Committee, the final conference report on the Fiscal Year 2012 Agriculture, Commerce/Justice/Science, and Transportation/Housing and Urban Development Appropriations bill – sometimes known as the "Mini-bus" contains yet another Continuing Resolution continuing other operations of the federal government until Dec. 16. (House Report 112-284 full text). The convoluted language of this Continuing Resolution has the effect of also extending USCIRF until Dec. 16.  The CR provides that:

The Continuing Appropriations Act, 2012 (Public Law 112-36) is amended by striking the date specified in section 106(3) and inserting "December 16, 2011".

Public Law 112-36 in turn extended the life of USCIRF through a provision reading:

Section 209 of the International Religious Freedom Act of 1998 (22 U.S.C. 6436) shall be applied by substituting the date specified in section 106(3) of this Act for "September 30, 2011".

In response to an inquiry, USCIRF Chairman Leonard Leo told Religion Clause blog by e-mail:

There is a provision in the CR to keep USCIRF going if the reauth cannot be achieved by the end of the week. But, we are hoping that the Democrats will move forward and get it done in the next couple of days. It would be shameful if, as other countries around the world create institutions like USCIRF, we shut ours down.

UPDATE: The White House website reports that the President signed the legislation on Nov. 18.

Bishop-Prosecutor Agree To Monthly Meetings On Child Abuse Evidence To Avoid Indictments

As previously reported, a Jackson County, Missouri grand jury last month indicted Catholic bishop Robert W. Finn and the Diocese of Kansas City-St. Joseph on misdemeanor charges growing out of their delay in reporting to authorities pornographic photos of girls found on a priest's laptop computer. The New York Times reported yesterday that now Bishop Finn has entered an agreement with the prosecuting attorney of neighboring Clay County to avoid indictment there as well. The bishop will meet monthly for the next five years with the prosecutor to report every suspicious episode in his diocese involving child abuse.  Finn will also visit each parish in Clay County to inform parishioners on how to report suspicious behavior. Victims' advocates criticized the agreement as ineffectual.

FBI May Invoke FOIA Exemption For Its Investigations Guide

In Muslim Advocates v. United States Department of Justice, (D DC, Nov. 10, 2011), the U.S. District Court for the District of Columbia held that the federal government can rely on the exemption in the Freedom of Information Act for certain law enforcement records to deny an advocacy group unredacted copies of chapters of the FBI's Domestic Investigations and Operations Guide. The court upheld in part the government's release of only a redacted version of the Guide. However, the court called for additional explanation of the government's insistence on extensive redactions in one of the chapters.

The 2009 complaint (full text) in the case contended that plaintiffs sought the documents because of their relevance to concerns over racial and religious profiling and  concerns about infringement of privacy and various 1st Amendment rights. In 2008, prior to implementing the Guide, the FBI had held two meetings with civil rights and civil liberties organizations to discuss the Guide. The attendees were allowed to review unredacted versions of 4 chapters, and take notes on them, for about two hours. Plaintiffs claimed that this waived the government's right to now withhold these chapters under FOIA exemptions. The court held, however, that it "is not convinced that such a limited review is sufficient to satisfy the requirements of the public-domain doctrine in the absence of evidence that the disputed chapters are now 'truly public'." Reporters Committee for Freedom of the Press reports on the decision.

Illinois Catholic Agencies Drop Suits Seeking To Keep Foster Care Funding

The Chicago Tribune reported yesterday that the Catholic dioceses of Joliet, Springfield and Belleville, Illinois have dropped their lawsuits against the state of Illinois in which they were seeking to retain state funding for foster care services without placing children with same-sex couples who had entered civil unions. (See prior posting.) An attorney for Catholic Charities says that they were forced to drop the lawsuit when the state delayed payments to the agencies and thus prevented foster care parents from receiving payment.

Meanwhile, Catholic Social Services of Southern Illinois announced that it was separating from the Diocese of Belleville and as a new organization, Christian Social Services of Illinois, will continue to offer foster care services in compliance with Illinois Religious Freedom Protection and Civil Union Act. A statement by the Diocese of Springfield indicated that it is completely ending its foster care and adoption services, but added: "The silver lining of this decision is that our Catholic Charities going forward will be able to focus on being more Catholic and more charitable, while less dependent on government funding and less encumbered by intrusive state policies."

Bishops Express Concern Over Government Policies Seen As Infringing Catholic Religious Freedom

According to AP, the Fall meeting of the U.S. Conference of Catholic Bishops, being held from Nov. 14-17, is focused heavily on religious freedom and the perceived infringement of Catholic religious liberty by various policies of federal and state governments. (See prior posting.)  AP reported in part:

Archbishop Timothy Dolan, president of the U.S. Conference of Catholic Bishops, said the bishops are not just reacting to Obama's policies, but to a broader society in a "drive to neuter religion" and "push religion back into the sacristy."

... But Dolan said he discussed the church's concerns with Obama when the two men met last week in the Oval Office. The archbishop said Obama was "extraordinarily friendly" and "very ardent" in reassuring Dolan that the administration would look into the problems.

"I left there feeling a bit more at peace with this issue than when I entered," Dolan said.

However yesterday the USCCB issued the following statement:

The meeting between President Obama and Archbishop Dolan on November 8 at the White House was very cordial and included pertinent moral concerns arising in foreign and domestic policy, issues of both agreement and disagreement. Both President Obama and Archbishop Dolan agreed that this was a private meeting, so no further details will be discussed.

FBI Releases 2010 Hate Crime Data

The FBI yesterday released its report on 2010 Hate Crime Statistics. (Full text of report.) Of the 6,224 single bias incidents reported in 2010, 20% were motivated by religious bias-- second only to racially motivated hate crimes which accounted for 47.3% of the incidents.  Sexual orientation bias was involved in 19.3% of the single bias incidents. Of the 1,409 hate crimes offenses motivated by religious bias, 65.4% were anti-Jewish; 13.2% were anti-Islamic; 4.3% were anti-Catholic; 3.8% were anti-multiple; 3.3% were anti-Protestant; 0.5% were anti-Atheism/Agnosticism/etc.; and 9.5% involved various other religions. The 6,628 total hate crime incidents in 2010 amounted to an insignificant increase over the 6,604 incidents reported for 2009. (See prior posting.) ADL issued a press release commenting on the 2010 data and decrying the fact that numerous law enforcement agencies around the country failed to report their hate crime data to the FBI.

Bishops Launch New Website Opposing Same-Sex Marriage

The U.S. Council of Catholic Bishops has created a new website-- Marriage: Unique for a Reason-- devoted to defending traditional marriage and opposing same-sex marriage.  A welcoming blog post from Bishop Salvatore J. Cordileone, chairman of the bishops' Subcommittee for the Promotion and Defense of Marriage, says in part:

Confusion about marriage's meaning is common today. What is marriage? Why does sexual difference matter for marriage? Do children have a right to a mom and a dad? Is marriage between one man and one woman discriminatory? These and many other questions are being raised with great urgency, and they call out for answers.

The Marriage: Unique for a Reason website is designed as a home of resources on what the Catholic Church teaches about the unique meaning of marriage, and why.

Supreme Court Denies Cert In Two Religion and Schools Cases

The U.S. Supreme Court today denied certiorari in two cases involving school-related religion issues. (Order List for 11/14/2011). The first case in which it denied review is Workman v. Mingo County Board of Education (Docket No. 11-380). In the case, the 4th Circuit upheld West Virginia's statute requiring vaccination for various diseases as a condition of attending school, rejecting plaintiff's free exercise, equal protection and substantive due process challenges to the requirement. (See prior posting.)

The other case in which the Court denied review is Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School District, (Docket No. 11-402).  In the case, the 8th Circuit held that a Missouri elementary school's limitation on the groups that could send home flyers with students was reasonable and viewpoint neutral, rejecting complaints by a group that was dedicated to using sports for evangelism that under the policy it was limited to distributing its flyers once per year. (See prior posting.)  Education Week reports on the Supreme Court's denial of cert. in both cases.

Recent Articles of Interest

From SSRN:

• Nicolai N. Petro, Russia’s Modernization: The Role of the Russian Orthodox Church, (November 4, 2011).
• Carmen Garcimartin, Education in the Secular State: Whose Right Is It?, (International Journal of the Jurisprudence of the Family, Vol. 2, 2011).
• Robert A. Kahn, The Acquittal of Geert Wilders and Dutch Political Culture, (University of St. Thomas Legal Studies Research Paper No. 11-31, 2011).
• Michael Hoffman, Religion, Conflict, and Regimes: A Two-Branch Model of Non-Democracy, (April 1, 2010).
• Danielle C. Jefferis, Institutionalizing Statelessness: The Revocation of Residency Rights of Palestinians of East Jerusalem, (International Journal of Refugee Law, Forthcoming).
• Salim Darmadi, Corporate Governance Disclosure in the Annual Report: An Exploratory Study on Indonesian Islamic Banks, (November 8, 2011).
• Gregory P. Magarian, Justice Stevens, Religion, and Civil Society, (Wisconsin Law Review, Vol. 73, 2011).
• Haider Ala Hamoudi, The Surprising Irrelevance of Islamic Bankruptcy, (American Bankruptcy Institute Law Review, Forthcoming).
• Joel A. Nichols (ed.), Marriage and Divorce in a Multicultural Context: Table of Contents and Introduction, (Cambridge University Press, 2012).
• Robert K. Vischer, How Do Lawyers Serve Human Dignity?, (University of St. Thomas Law Journal, 2012).
• Elizabeth Rose Schiltz, Exposing the Cracks in the Foundations of Disability Law, (Law and Contemporary Problems, Vol. 75, 2012).
• Richard Albert, The Separation of Higher Powers, (Southern Methodist University Law Review, Vol. 65, No. 1, 2012).

From SmartCILP:

• David E. Gilbert, Lessons from Theodicy: The Problem of Evil and the Limits of Governmental Power, [Abstract], 5 Liberty University Law Review 379-417 (2011).

NYT Op-Ed Explores Mormonism and Presidential Bids

Yale professor Harold Bloom writes a rather contentious op-ed in today's New York Times titled Will This Election Be the Mormon Breakthrough?  Here are a few excerpts from it:

[S]hould Mr. Romney be elected president, [Joseph] Smith’s dream of a Mormon Kingdom of God in America would not be fulfilled, since the 21st-century Church of Jesus Christ of Latter-day Saints has little resemblance to its 19th-century precursor. The current head of the Mormon Church, Thomas S. Monson, known to his followers as “prophet, seer and revelator,” is indistinguishable from the secular plutocratic oligarchs who exercise power in our supposed democracy....

I recall prophesying in 1992 that by 2020 Mormonism could become the dominant religion of the western United States. But we are not going to see that large a transformation. I went wrong because the last two decades have witnessed the deliberate dwindling of the Church of Jesus Christ of Latter-day Saints into just one more Protestant sect. Without the changes, Mitt Romney and Jon M. Huntsman Jr., a fellow Mormon, would not seem plausible candidates.

Lawsuit Alleges Bullying of Jewish School Girl

Yesterday's Akron Beacon Journal reports on a federal lawsuit that was filed recently by the family of a 14-year old Green, Ohio girl alleging years of bullying which school officials and employees did nothing to stop.  Most of the bullying was verbal and much of it was directed at the girl's Jewish religious beliefs. However there were also incidents of physical attacks, as well as a Facebook page devoted to disparaging comments about the girl. The girl is now enrolled in a different school, and the case has been turned over to the school district's insurance company.

Recent Prisoner Free Exercise Cases

In Williams v. Secretary Pennsylvania Department of Corrections, (3rd Cir., Nov. 3, 2011), the 3rd Circuit reversed a trial court's summary judgment against a Muslim inmate on his RLUIPA claim, holding that the district court should consider whether a prayer room should be provided for Muslim inmates working in the Food Services Department.

In Wallace v. Johnson, 2011 U.S. Dist. LEXIS 128382 (SD IL, Nov. 4, 2011), an Illinois federal district court permitted an inmate to move ahead with his claim that he was deprived of needed medical treatment and of adequate clothing and linens in retaliation for his Satmar Hasidic Jewish religious beliefs.

In State v. Velez, 2011 Wisc. App. LEXIS 830 (WI App., Sept. 27, 2011), a Wisconsin state appeals court rejected an inmate's claim that his free exercise rights were violated by a refusal to amend a 15-year old judgment of conviction to include a religious name which he had adopted through a common law name change.

In Jones v. Lorady, 2011 U.S. Dist. LEXIS 128957 (MD PA, Nov. 8, 2011), a Pennsylvania federal district court adopted a magistrate's recommendations and permitted an inmate to move ahead against certain defendants with his claim that his sincere religious beliefs prohibited shaving of his beard. However official capacity monetary damage claims were dismissed.

In Clark v. Martel, 2011 U.S. Dist. LEXIS 129232 (ND CA, Nov. 8, 2011), a California federal district court dismissed with leave to amend an inmate's complaint about improper use of chaplains.

In Via v. Wilhelm, 2011 U.S. Dist. LEXIS 129646 (WD VA, Nov. 9, 2011), a Virginia federal district court rejected a Muslim inmate's claims that his free exercise, equal protection and RLUPA rights were violated when authorities substituted soy protein for halal meat in the Common Fare diet made available to him.

In Cortinas v. Lockwood, 2011 U.S. Dist. LEXIS 130498 (ED CA, Nov. 8, 2011), a California federal magistrate judge recommended that a Muslim inmate be permitted to proceed against one defendant on a religious discrimination claim based on withholding of his medicine.  However the court recommended dismissing claims against other defendants alleging verbal abuse and seeking access to the kosher diet alternative.

Settlement Allows Posters On Separation of Church-State In Courthouse

Yesterday Americans United announced that it had obtained a settlement in Stewart v. Johnson County, Tennessee. AP also reports on the settlement. The suit was filed after the county-- in response to a complaint about a display of the Ten Commandments in the lobby of the county courthouse-- adopted a limited public forum policy. It permits local residents and organizations to donate to the courthouse displays of historical documents that, among other things, "directly relate to the development of law...." Under the policy, the county accepted a display that features the Ten Commandments and other historical documents along with a 26-page pamphlet that includes an introduction titled "From Biblical Morality to Modern Law."  Ralph Stewart then asked to display two posters titled "On the Legal Heritage of the Separation of Church and State" and "The Ten Commandments Are Not the Foundation of American Law."  He sued when the county refused on the ground that his posters did not fall within the subject matter of the limited public forum it had created. (See prior posting.) Under the settlement, the county has agreed to display Stewart's posters in a prominent place, and modify its policy to make it clear that county commissioners may not reject a display merely because they dislike its content. The settlement also includes payment of $75,000 in legal fees. [Thanks to Don Byrd for the lead.]

North Carolina Supreme Court Upholds Campus Police Power On Religiously Affiliated Campus

In State v. Yencer, (NC Sup. Ct., Nov. 10, 2011), the North Carolina Supreme Court upheld North Carolina's Campus Police Act against an Establishment Clause challenge. At issue was the power of the campus police at Davidson College, a Presbyterian Church-affiliated liberal arts college. The state court of appeals, relying on earlier state Supreme Court precedent, had held it unconstitutional for the state to delegate police powers to a religious institution. (See prior posting.) However the Supreme Court disagreed, concluding that the earlier cases  relied upon by the court of appeals pre-dated the enactment of the Campus Police Act which added provisions to ensure neutral, uniform enforcement of the law by campus police.  The Supreme Court held:

this is not a case in which a statute delegates unbridled discretionary governmental powers to a religious organization. The delegation of limited power to campus police officers here “does not result in an 'excessive' entanglement that advances or inhibits religion.

The Burlington Times-News reports on the decision.

Religious College Sues To Challenge New Federal Regs On Insurance Coverage For Women

A Benedictine Catholic liberal arts college located in North Carolina filed suit yesterday challenging on 1st Amendment, RFRA and other grounds federal regulations issued in August that require all group health insurance plans to cover FDA-approved contraceptive methods, sterilization procedures, and counseling for women with reproductive capacity. While certain religious employers are exempt from the requirements, that exemption is too narrow to cover many religiously sponsored colleges. (See prior posting.) The complaint (full text) in Belmont Abbey College v. Sebelius, (D DC, filed 11/10/2011), alleges in part:

Plaintiff Belmont Abbey College is a small religious college, whose religious beliefs forbid it from participating in, paying for, training others to engage in, or otherwise supporting contraception, sterilization, or abortion..... The government’s Mandate unconstitutionally coerces Belmont Abbey College to violate its deeply-held religious beliefs under threat of heavy fines and penalties. The Mandate also forces Belmont Abbey College to fund government-dictated speech that is directly at odds with its own speech and religious teachings. Having to pay a fine to the taxing authorities for the privilege of practicing one’s religion or controlling one’s own speech is un-American,unprecedented, and flagrantly unconstitutional.

Becket Fund issued a press release announcing the filing of the lawsuit.

31 Convicted In India of 2002 Murders In Religious Riots

In India on Wednesday, according to AFP, a court handed down verdicts in the trial of 73 Hindus accused of killing Muslims in religious rioting in the state of Gujarat in 2002.  The rioting followed a train fire that killed Hindu pilgrims.  31 of the defendants were found guilty of murder and arson in the killing of 33 Muslims who had sought shelter in a small house that was set on fire. 42 of the defendants were acquitted for lack of evidence. The Gujarat government has been accused of tacitly supporting the Hindu rioters.

Court Refuses To Order Town To Allow Eruv

In East End Eruv Association, Inc. v. Village of Westhampton Beach, (ED NY, Nov. 3, 2011), a New York federal district court refused to issue a preliminary injunction to prevent the Town of Southampton (NY) from interfering with a Jewish group's constructing an eruv (symbolic boundary) by attaching plastic strips to utility poles. Utility companies that owned the poles had negotiated arrangements to permit the eruv, if required permits were obtained. The court held that the case was not ripe because plaintiffs had not applied to the town for a permit or variance. Doing so would allow the town to decide whether or not its sign ordinance applied to the eruv.  The court went on to hold that even if the case was ripe, plaintiffs had not shown a likelihood of success on the merits of their free exercise claims under the 1st Amendment or RLUIPA. The sign ordinance is a neutral law of general applicability, and the record does not show selective enforcement. No RLUIPA claim lies because plaintiffs have shown no property interest in any land involved. Since no relief was available against Southampton, so the eruv could not now be built, the court denied without prejudice motions for preliminary injunctions against two other towns through which the eruv would run. Westhampton- Hampton Bays Patch and 27 East report on the decision. (See prior related posting.)