False Anti-Muslim Speech Protected By 1st Amendment

In American Freedom Defense Initiative v. Southeastern Pennsylvania Transportation Authority ("SEPTA"), (ED PA, Nov. 25, 2014), a Pennsylvania federal district court granted a motion to exclude expert testimony on the falsity of language in an anti-Islam ad which an advocacy group wants to place on public buses. SEPTA refused to accept the ad under its policy to refuse copy that, among other things, disparages on the basis of religious belief.  AFDI sued claiming this rejection violates its free speech rights.  In the lawsuit, SEPTA sought to offer expert testimony that the ad's referring to Haj Amin al-Husseini as the “leader of the Muslim world” is false and that the statement “the Quar’an teaches Jew-Hatred” is “unfair and erroneous.” The court concluded however that the proposed testimony is irrelevant because the 1st Amendment protects false speech as well as accurate expression. The court also rejected as too attenuated the argument that the ad amounts to a fraudulent charitable solicitation.  The website listed in the ad links to a second website at which charitable contributions can be made. WND's report on the decision includes a photo of the disputed ad.

Suit Challenges MTA's Rejection of Anti-Hamas Ad

Reuters reported yesterday on a lawsuit filed by the American Freedom Defense Initiative claiming that its civil rights were violated when the New York City Metropolitan Transit Authority rejected its city bus ad that included the line: "Killing Jews is worship that draws us close to Allah - Hamas MTV". The MTA says they rejected the ad because it may incite violence.

Muslim Groups Denounce Anti-Islamist Ads That Will Appear on NYC Busses and Subway Stations

AlJazeera reported yesterday that Muslim groups are denouncing a series of six anti-Muslim, anti-Jihad ads that will appear on 100 New York buses and two subway entrances for the next four weeks, saying they equate all Muslims with extremism.  The ads, which reportedly cost some $100,000, were purchased by the American Freedom Defense Initiative, a group led by Pamela Geller. Five of the ads are pictured on AFDI's website.  One of the ads focuses on ISIL's radicalization of Westerners; another equates CAIR with Hamas; two others focus on promotion of anti-Christian and anti-Jewish views by Islamic countries; and one call Jihadists savages and urges support for Israel. An MTA spokesman says that court decisions (see prior posting) make it clear that under the First Amendment it must accept the ads unless they provoke violence or interfere with operations (which one proposed ad did).

DC Transit System Carries Competing Controversial Ads Sparked By Middle East Rivalries

The Washington Post reported last week on the latest round of competing advertising on the sides of Washington, DC's Metro buses.  In mid-March to mid-April, the Illinois-based group American Muslims for Palestine bought advertising space on the sides of 20 buses for an a banner ad featuring a drawing of Uncle Sam waving an Israeli flag, and reading: "We're Sweating April 15 So Israelis Don't Have To! Stop US Aid To Israel's Occupation!" In response to those ads which it described as "Jew-hating,"  the pro-Israel American Freedom Defense Initiative has purchased a month's worth of ads on the side of 20 buses beginning last Monday. Those ads feature a photo of Adolph Hitler with the mufti of Jerusalem who supported him, and read: "Islamic Jew-Hatred: It's In The Quran.Two-Thirds Of All US Aid Goes To Islamic Countries. Stop Racism. End All Aid To Islamic Countries."

Federal Circuit Denies Trademark Registration For "Stop the Islamisation of America"

In In re Geller, (Fed. Cir., May 13, 2014), the U.S. Court of Appeals for the Federal Circuit upheld the Trademark Office's refusal to register "Stop The Islamisation of America" as a trademark to be used in connection with understanding and preventing terrorism.  The appeals court agreed with the Trademark Trial and Appeal Board's conclusion that the phrase contains matter which may disparage a group of persons. Under 15 USC 1052(a), this is a basis for refusing registration. The court said in part:

The political meaning of Islamisation does not require violence or terrorism, and the Board properly found that associating peaceful political Islamisation with terrorism would be disparaging to a substantial composite of American Muslims.

Appellants in the case, Pamela Geller and Robert Spencer, are co-founders of the American Freedom Defense Initiative. [Thanks to How Appealing for the lead.]

Recent Articles of Interest

From SSRN:

• Machtfeld Zee, Five Options for the Relationship between the State and Sharia Councils: Untangling the Debate on Sharia Councils and Women's Rights in the United Kingdom, (Journal of Religion and Society, Volume 16 (2014)).
• Cambria Queen, Is God in the United States?, (September 26, 2013).
• Caroline Mala Corbin, Corporate Religious Liberty: Why Corporations Are Not Entitled to Religious Exemptions, (American Constitution Society Issue Brief, January 2014).
• Haim Sandberg, From JNF to Viva Palestina – UK Policy Towards Zionist and Palestinian Charities, (January 23, 2014).

From SmartCILP and elsewhere:

• Audun Kjus, Adam and Lucifer: A Royal Example, 25 Law & Literature 466-482 (2013).
• David B. Kopel, Evolving Christian Attitudes Towards Personal and National Self-Defense, 45 Connecticut Law Review 1709-1771 (2013).
• Benjamin Porat, Lethal Self-Defense Against a Rapist and the Challenge of Proportionality: Jewish Law Perspective, 26 Columbia Journal of Gender & Law 123-181 (2013).
• Moshe Simon-Shoshan, "People Talking Without Speaking": The Semiotics of Rabbinic Legal Exemplum As Reflected in Bavli Berakhot 11a, 25 Law & Literature 446-465 (2013).
• Alan E. Garfield, The Contraception Mandate Debate: Achieving a Sensible Balance, Columbia Law Review, January 2014 Sidebar.
• Knox Thames, A Global Response to Religious Freedom Violations, Georgetown Journal of International Affairs, Jan. 2014.

Hawaii Federal Court Rejects RFRA Claims In 2 Cannabis Cases

This week the Hawaii federal district court rejected Religious Freedom Restoration Act claims in two separate marijuana cases:

United States v. Christie, (D HI, Dec. 30, 2013), involves a motion in limine in the prosecution of Roger Christie, the founder and leader of The Hawaiian Cannabis Ministry, and Sherryanne L. St. Cyr, an ordained minister in the THC Ministry, who are charged with manufacturing, distributing and possessing marijuana.  In one opinion (full text) the court held that Defendants had established a prima facie case for raising a Religious Freedom Restoration Act defense.  In a second opinion issued the same day (full text), the court held the government had established a compelling interest in enforcing the Controlled Substances Act against defendants to prevent diversion of substantial amounts of marijuana to non-adherents of the church. Finding also that the prosecution is the least restrictive means to further that compelling interest, the court held that defendants ultimately are not entitled to present a RFRA defense at trial.

In Oklevueha Native American Church of Hawaii, Inc. v. Holder, (D HI, Dec. 31, 2013), the court dismissed a suit brought by the Native American Church of Hawaii and its founder Rex "Raging Bull" Mooney seeking a declaratory judgment decreeing that criminal prosecution under the federal Controlled Substances Act for consuming, cultivating, possessing or distributing of cannabis would violate plaintiffs' free exercise of religion in violation of RFRA. The court said in part:

No reasonable juror could infer, from what is presently in the record, that Mooney’s religion is anything more than a strongly held belief in the importance or benefits of marijuana. Even if this belief is sincerely held, and even if marijuana use is indeed beneficial, the court cannot conclude from the record that a reasonable juror could find that Plaintiffs’ belief is religious in nature....

Even if the evidence in the record did support the existence of a religion,... a reasonable juror could not conclude that the prohibition on cannabis constitutes a substantial burden on Plaintiffs’ alleged religion..... Mooney himself describes peyote as his religion’s “primary sacrament,” and lists a litany of other drugs his Church members use. Nothing in the record explains why relying on these other drugs instead of cannabis would be more than an inconvenience for Plaintiffs.

Group Seeks Records of Contacts Between DOD and Mikey Weinstein

Judicial Watch, a conservative advocacy group, announced last month that it has filed a Freedom of Information Act lawsuit seeking all records of communications between the Department of Defense and Mikey Weinstein, founder of the Military Religious Freedom Foundation.  Weinstein has been active in opposing Christian proselytization in the military. (See prior posting.) Explaining the lawsuit, Judicial Watch President Tom Finton said:

The American people deserve to know the full truth about just how close the relationship is between anti-Christian activist Mikey Weinstein and the Obama Department of Defense. There is increasing intolerance for the First Amendment rights of traditional Christians in today's military.

Recent Articles and Books of Interest

From SSRN:

• Monika Ambrus, The European Court of Human Rights and Standards of Proof in Religion Cases, (8 Religion and Human Rights 2 (2013), pp. 107-137, Forthcoming).
• Perry Dane, Doctrine and Deep Structure in the Contraception Mandate Debate,(July 21, 2013).
• Charles Tiefer, Jonathan W. Cuneo & Annie Reiner, Could This Train Make It Through: The Law and Strategy of the Gold Train Case, (Yale Human Rights and Development Law Journal, Vol. 15, 2012, pp. 129-154).
• Ian C. Bartrum, Religion and the Restatements, (Brooklyn Law Review, Forthcoming).
• Richard W. Garnett, 'The Freedom of the Church': (Towards) an Exposition, Translation, and Defense, (Journal of Contemporary Legal Issues, Forthcoming (2013)).

From SmartCILP:

• Todd A. DeMitchell, David J. Herbert & Loan T. Phan, The University Curriculum and the Constitution: Personal Beliefs and Professional Ethics in Graduate School Counseling Programs, 39 Journal of College and University Law 303-345 (2013).
• Jane C. Ginsburg, Proto-property in Literary and Artistic Works: Sixteenth-Century Papal Printing Privileges, 36 Columbia Journal of Law & the Arts 345-458 (2013).
• The Lautsi Debate -- Fin. Articles by Dimitrios Kyritsis, Stavros Tsakyrakis and Lorenzo Zucca; reply by J.H.H. Weiler. 11 I.Con: International Journsal of Constitutional Law 200-233 (2013).

Recent Books:

• Vincent Phillip Munoz, Religious Liberty and the American Supreme Court: The Essential Cases and Documents, (Rowman & Littlefield, July 2013).
• Robin Griffith-Jones (ed.), Islam and English Law: Rights, Responsibilities and the Place of Shari’a, (Cambridge Univ. Press, May 2013), Reviewed by Financial Times.

Court Denies Freedom of Information Request Relating To NYPD Surveillance of Muslims

In Asian American Legal Defense & Education Fund v. New York City Police Department, (NY Sup. Ct., May 6, 2013), a New York trial court upheld the NYPD's rejection of a Freedom of Information Law request by two groups seeking to learn more about the city's domestic surveillance program that targeted Muslims.  The groups sought information regarding record keeping and retention, policy guidelines and statistics related to the surveillance. The court said that the city properly relied on the statutory exemption for information "compiled for law enforcement purposes and which, if disclosed, would: (i) interfere with law enforcement investigations or judicial proceedings; [or] (iii) identify a confidential source or disclose confidential information relating to a criminal investigation; or (iv) reveal criminal investigative techniques or procedures ." The court also identified several other exceptions that would justify denial of parts of the FOIL request. The New York Daily News reports on the decision.

Iran Sentences Pastor To 8 Years In Prison

Reuters reported yesterday that Iranian-American Christian pastor Saeed Abedini has been sentenced to 8 years in prison by an Iranian court after his attorney had only one day to present his defense to charges of threatening Iran's national security through his leadership in Christian house churches. A U.S. State Department spokesman said: "We condemn Iran's continued violation of the universal right of freedom of religion and we call on the Iranian authorities to respect Mr. Abedini's human rights and release him." (See prior related posting.)

Top 10 Church-State and Religious Liberty Developments For 2012

Here are my nominations for the 2012 Top Ten Church-State and Religious Liberty Developments:

1.  The long-simmering tensions between the U.S. Conference of Catholic Bishops and the Obama Administration took on a greater focus when in May some 40 Catholic institutions, in 12 lawsuits, filed challenges to the Obama administration's mandate that health insurance policies include contraceptive coverage. Other suits followed. The Administration had granted a one-year moratorium to non-profit institutions, while it worked unsuccessfully to produce a compromise that might be acceptable to religiously affiliated non-profit institutions. Meanwhile, for-profit companies owned by Catholics and conservative Christians also filed an avalanche of suits seeking conscience exemptions from the mandate.

2.  The battle between religious conservatives and advocates of marriage equality continued to rage on numerous fronts.  Each side saw some victories and some defeats, but proponents of marriage equality had a good year.  Legislatures in Washington and Maryland approved same-sex marriage. In November, voters in 4 states also indicated approval of same-sex marriage, but earlier in the year North Carolina voters approved a ban on same-sex marriage.. The 9th Circuit in a narrow opinion struck down California's Proposition 8, and the Supreme Court has agreed to review that decision. The Defense of Marriage Act was struck down by the 1st Circuit, the 2nd Circuit and a California federal district court. The Supreme Court has agreed to review the 2nd Circuit case. Same-sex marriage bans in Nevada and Hawaii were upheld by federal district courts.

 3.  Mitt Romney lost the Presidential election, but his Mormon religious faith was not an important issue in the campaign. Indeed, Romney's activities as a lay Mormon pastor were used to his advantage at the Republican Convention.

4. The Supreme Court in Hosanna-Tabor v. EEOC adopted the "ministerial exception" doctrine for employment discrimination cases, finding it to be constitutionally-based.

5.  Egypt has struggled to draft and adopt a new constitution.  The role the new constitution will provide for Sharia law in the country has been one of the central issues in debates on the document.

6.  A 17-year long struggle by the New York City Board of Education to bar churches from renting out school buildings on weekends for church services, even though the buildings are available to other community groups, was revived by a federal district judge. Most observers had thought that a 2011 decision by the 2nd Circuit had ended the dispute in favor of the Board of Education, but the court held that the 2nd Circuit had not passed on the Bronx Household of Faith's free exercise and establishment clause claims. The district court's vindication of the free exercise claim is now on appeal.

7.  An online video promoting the obscure movie "Innocence of Muslims" triggers demonstrations against American embassies in the Muslim world. The video leads to an unusual set of legal proceedings-- litigation involving probation violations by the producer, attempt by an actress in the movie to have it removed from YouTube, and in abstentia convictions in Egypt.

8.  New questions are raised around the world regarding ritual circumcision of young boys by Muslims and Jews. Germany's Bundestag confirmed the legality of religious circumcision after a Cologne district court held that parents lack the right to decide that their young sons should be circumcised for non-medical reasons. Ritual circumcision is also questioned in Australia and Norway. Meanwhile, in the United States some Orthodox Jewish groups sue challenging the New York City health department's new regulation requiring informed consent from parents when a Jewish religious circumcision involves use of the oral suction technique (metzitzah b'peh).

9.  The court martial trial of accused Fort Hood mass shooter Maj. Nidal Hasan is delayed as the question of his right to wear a beard for religious reasons at his trial is litigated.  In December, an appeals court held there was insufficient evidence to show that the beard materially interfered with the court martial proceedings. It also ordered court martial judge Gregory Gross removed from the case for the appearance of bias.

10.  In the wake of Congress' reorganization of the U.S. Commission on International Religious Freedom in late 2011, developments demonstrated internal divisions and conflicts in the Commission. The pressure of expiring terms of 5 Commissioners led to early release of USCIRF's annual report and to a public statement by 5 of the Commissioners charging that the report wrongly reflected the votes of Commissioners on the status of Turkey.  Meanwhile a former USCIRF staff member sued alleging anti-Muslim bias against her.  In an unrelated case, a different employee was sentenced to prison for embezzling USCIRF funds. And Muslim groups criticized one of the new Commissioners, claiming he is anti-Muslim.

Some of my picks were rather obvious candidates for inclusion, while others may surprise some readers. A number of the top developments continue trends reflected in last year's list.  You may also find it interesting to compare two other "Top 10" lists: Religion Newswriters 2012 Top 10 Religion Stories and Blog from the Capital's Top Religious Liberty Stories of 2012. I invite you to post your comments or disagreements with my choices this year.

6th Circuit: Transit System Can Refuse Anti-Muslim Ad

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 25, 2012), the U.S. 6th Circuit Court of Appeals held that a public transit system could refuse an ad that read: "Fatwa on your head?  Is your family or community threatening you?  Leaving Islam?  Got Questions?  Get Answers! RefugefromIslam.com."  Holding that the district court should not have granted a preliminary injunction, the 6th Circuit said:

Since the advertising space on SMART’s vehicles is a nonpublic forum, the content restrictions imposed on that space are constitutional as long as they are reasonable and viewpoint neutral.....  SMART could reasonably view the fatwa advertisement as falling within the prohibition against political advertisements, and AFDI is unlikely to succeed with its counterarguments that these rules are unconstitutional or merely a pretext for SMART’s disagreement with AFDI’s viewpoint.

The Wall Street Journal reports on the decision. [Thanks to Alliance Alert for the lead.]

Recent Articles of Interest

From SSRN:

• Jerg Gutmann, Causes of Corruption in Religious Organizations, (October 19, 2012).
• Caroline Mala Corbin, The Contraception Mandate, (Northwestern University Law Review Colloquy, Vol. 106, Forthcoming).
• Charlton C. Copeland, Creation Stories: Stanley Hauerwas, Same-Sex Marriage, and Narrative in Law and Theology, (Law and Contemporary Problems, Vol. 75, No. 4, 2012).
• Frederick Mark Gedicks, With Religious Liberty for All: A Defense of the Affordable Care Act's Contraception Coverage Mandate, (American Constitution Society for Law and Policy Issue Brief, Oct. 18, 2012).
• Menachem Mautner, Religion in Politics: Rawls and Habermas on Deliberation and Justification, (Hanoch Dagan, Yedidia Z. Stern and Shachar Lifshitz eds., The Israel Democracy Institute, 2013).
• Wassim Rajhi, Islamic Finance, Distress and Restructuring: Lessons from Asian Financial Crises, (October 17, 2012).
• Roberta Rosenthal Kwall, Is the Jewish Tradition Intellectual Property?, (4 WIPO Journal, Forthcoming).

From SmartCILP:

• Rex Ahdar, Regulating Religious Coercion, [Abstract], 8 Stanford Journal of Civil Rights & Civil Liberties 215-243 (2012).
• Yaseen Eldik and Monica C. Bell, The Establishment Clause and Public Education in an Islamophobic Era, [Abstract], 8  Stanford Journal of Civil Rights & Civil Liberties 245-258 (2012).
• Mary Ann Glendon, Harold J. Berman Lecture. Religious Freedom--A Second-Class Right?, 61 Emory Law Journal 971-990 (2012).
• Myriam Hunter-Henin, Why the French Don't Like the Burqa: Laicite, National Identity and Religious Freedom, [Abstract], 61 International & Comparative Law Quarterly 613-639 (2012).
• John Witte, Jr. and Don S. Browning, Christianity's Mixed Contributions to Children's Rights: Traditional Teachings, Modern Doubts, 61 Emory Law Journal 991-1014 (2012).

Recent Articles of Interest

From SSRN:

• Sarah M. Fallon, Respecting American Muslims and Shari'a Law: Maintaining Comity within American Jurisprudence, (Boston College International and Comparative Law Review, Vol. 35, 2012).
• Carl H. Esbeck, Religion During the American Revolution and the Early Republic, (Silvio Ferrari, ed., Law & Religion, Ashgate Publishing Co., U.K., 2013).
• Frederick Mark Gedicks, Ironies of Hosanna-Tabor, (Mercer Law Review, Forthcoming).
• András Koltay, Europe and the Sign of the Crucifix: On the Fundamental Questions of the Lautsi and Others v. Italy Case, (January 15, 2012).
• Shruti Chaganti, Why the Religious Freedom Restoration Act Provides a Defense in Suits by Private Plaintiffs, (October 2, 2012).
• Paul A. Lombardo, Return of the Jukes: Eugenic Mythologies and Internet Evangelism, (Journal of Legal Medicine, Vol. 33, 2012).
• Jeremy G. Mallory, Prophetic Speech, (August 24, 2012).
• David Allen Larson and Chang Wang, Preparing to Negotiate in a Globally Diverse Environment: An Examination of Chinese and Jewish Perspectives on Truth and Lies, (Hamline Journal of Public Law and Policy, Vol. 33, No. 2, 2012).
• John D. Haskell, Divine Immanence: The Evangelical Foundations of Modern Anglo-American Approaches to International Law, (11:3 Chinese Journal of International Law 429, 2012).
• Ebrahim Moosa, Translating Neuroethics: Reflections from Muslim Ethics, (Science and Engineering Ethics no. 18 (2):1-10, 2012).

From SmartCILP:

• Jean L. Cohen, The Politics and Risks of the New Legal Pluralism In the Domain of Intimacy, [Abstract], 10 I.Con: International Journal of Constitutional Law 380-397 (2012).
• Katheryn M. Dutenhaver, Mediating the Religious Upbringing Issue in Divorce Cases, 12 Pepperdine Dispute Resolution Law Journal 397-413 (2012).
• Cecile Laborde, State Paternalism and Religious Dress Code, [Abstract], 10 I.Con: International Journal of Constitutional Law 398-410 (2012).
• Julieta Lemaitre, By Reason Alone: Catholicism, Constitutions, and Sex in the Americas, [Abstract], 10 I.Con: International Journal of Constitutional Law 493-511 (2012).

AU Calls For IRS To Investigate Colorado Christian Organization

Americans United announced last week that it has filed a complaint (full text of letter) with the Internal Revenue Service asking it to investigate the Ridgway, Colorado based Ridgway Christian Center for violating tax code limitations on non-profit organizations. The letter points to a magazine distributed by Ridgway (a project of Praise Him Ministries) to Colorado residents:

Please note the cover of the publication. It is dated Fall 2012 and contains a photo of a series of American flags. The headline reads, “Honor God! Love your country! VOTE REPUBLICAN!”

Inside the publication, Victoria Hearst, founder and president of the ministry, writes a long article challenging the right of the Internal Revenue Service to prohibit tax exempt organizations from endorsing or opposing candidates for public office. The articles relies heavily on material produced the Alliance Defending Freedom (formerly the Alliance Defense Fund), an Arizona-based organization that every year sponsors an event called “Pulpit Freedom Sunday,” during which pastors are urged to openly violate the law by endorsing or opposing candidates from the pulpit.

New York MTA Ban On Ads That Demean Religious Groups Violates 1st Amendment

In American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, July 20, 2012), a New York federal district court held unconstitutional the provision in the standards for the sale of ad space on New York City buses that prohibits ads which demean a religious group. AFDI wanted to buy ad space on the tails of 318 NYCTA buses to run an ad reading: "In Any War Between the Civilized Man and the Savage, Support the Civilized Man. Support Israel. Defeat Jihad."  The court held that advertising space on exterior of buses is a designated public forum in which content based restrictions are subject to strict scrutiny. The MTA policy at issue which precludes ads that demean an individual or group on account of "race, color, religion, national origin, ancestry, gender, age, disability or sexual orientation" was seen to be content based: "as presently worded, [it] overtly differentiates among speech based on the target of the speech's abuse and invective." The New York Times reports on the decision. [Thanks to Steven H Sholk for the lead and to Fairness blog for posting the decision.]

Second Lawsuit Against Georgia County Filed Over Zoning Denial For Churches

For the second time this year (see prior posting), a federal lawsuit has been filed against Coweta County, Georgia challenging its denial of a conditional use permit to a predominately African-American church. At issue in the latest suit is the county's refusal to allow Holy Is The Way Ministries to build a church on a rural tract of land it has contracted to purchase. The county Board of Commissioners denied the church's application, rejecting a recommendation of the Board of Zoning Appeals.  The complaint (full text) in Holiness Is The Way Ministries, Inc. v. Coweta County, Georgia, (ND GA, filed 4/13/2011), alleges violations of RLUIPA as well as numerous constitutional violations. Among other claims, plaintiffs charge that the provision in the county's zoning ordinance that calls for churches and other places of worship to obtain a conditional use permit to locate in areas zoned Rural Conservation is unconstitutional.  The complaint alleges that since this requires the county to analyze the content of speech and other expressive activity in order to determine whether a gathering is "a Church or other place of worship," this violates the 1st Amendment's protection of freedom of expression as well as the Establishment Clause. Alliance Defense Fund issued a press release announcing the filing of the lawsuit.

Preliminary Injunction Forces Bus System To Accept Ads From Anti-Jihad Group

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation ("SMART"), (ED MI, March 31, 2011), a Michigan federal district court granted a preliminary injunction preventing the bus system in four southeastern Michigan counties from rejecting anti-jihad ads that plaintiff sought to place on buses.  According to a press release from the Thomas More Law Center, the ads read: "Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got questions? Get Answers!" SMART rejected the ads under its policy that prohibited, among others, political ads or ads that are likely to hold any group up to scorn or ridicule. The court held that while it is likely that the bus advertising space  is a non-public forum, the restriction is unconstitutional because "there is nothing in the policy that can guide a government official to distinguish between permissible and impermissible advertisements in a non-arbitrary fashion."

10th Circuit Upholds Bald Eagle Protection Regulations Over RFRA Challenge

In a complicated opinion yesterday, the U.S. 10th Circuit Court of Appeals upheld the current federal regulations that implement the Bald and Golden Eagle Protection Act against a claim that they infringe the religious freedom of adherents of Native American religions who are not members of federally recognized Indian tribes.  In United States v. Wilgus, (10th Cir., March 29, 2011), the court gave this background:

16 U.S.C. § 668, prohibits possession of the feathers or parts of eagles, but contains an exception to the ban when the feathers are possessed "for the religious purposes of Indian tribes." Id. § 668a. The regulations implementing the exception limit its scope to members of federally-recognized tribes only, who are allowed to apply to the government for permits. 50 C.F.R. § 22.22. Wilgus is a follower of a Native American faith, but is not a member of a federally-recognized tribe, nor is he Indian by birth.

Faced with prosecution, Wilgus interposed as a defense the Religious Freedom Restoration Act ... which prohibits the federal government from substantially burdening the religious freedom of individuals, unless it does so to forward a compelling governmental interest via the least restrictive means. Wilgus argues that the government’s choice to limit legal possession of eagle feathers to members of federally-recognized tribes substantially burdens his religious exercise which, he claims, requires him to possess eagle feathers.

In an earlier en banc decision, the 10th Circuit had held that defendant's religious exercise was substantially burdened, but that the government had two compelling interests for doing so. In yesterday's decision, the 10th Circuit dealt with the remaining issue-- whether the current regulation is the least restrictive means of furthering the government's interests in protecting the bald eagle as our national symbol and in fostering Native American  culture and religion. It held that it is.

In the course of its decision, the court refined the articulation of the government's compelling interests. It concluded that the interest was one of protecting the culture of federally-recognized Indian tribes, not protecting Native American religion more generally. It said that the broader formulation would run afoul of the Establishment Clause:

"When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality...." [citation omitted]. If we were to hold that the federal government has a compelling interest in fostering Native American culture generally by providing special exceptions to criminal laws for Native American religious practices, we are concerned this might run up against this principle.

By adopting the federally-recognized tribes version of the interest, however, we remain on safe ground, based on the Supreme Court’s conclusion that federally recognized tribes are political—rather than religious or racial—in nature.

AP reports on the decision.