Monday, September 22, 2014

Pope Francis In Albania Speaks On Religious Violence and Religious Freedom

Pope Francis, on a visit to Albania yesterday, spoke at the Catholic University of Tirana to leaders of various faith communities on issues of religious freedom and religious violence.  Vatican Radio reports the full text of his speech. The Pope said in part:
We cannot deny that intolerance towards those with different religious convictions is a particularly insidious enemy, one which today is being witnessed in various areas around the world.... [A]ll those forms which present a distorted use of religion, must be firmly refuted as false since they are unworthy of God or humanity. Authentic religion is a source of peace and not of violence! No one must use the name of God to commit violence! To kill in the name of God is a grave sacrilege. To discriminate in the name of God is inhuman.
Seen in this light, religious freedom is not a right which can be guaranteed solely by existing legislation, although laws are necessary. Rather religious freedom is a shared space, an atmosphere of respect and cooperation that must be built with everyone’s participation, even those who have no religious convictions. Allow me to outline two attitudes which can be especially helpful in the advancement of this fundamental freedom.
The first attitude is that of regarding every man and woman, even those of different religious traditions, not as rivals, less still enemies, but rather as brothers and sisters. When a person is secure of his or her own beliefs, there is no need to impose or put pressure on others.... 
The second attitude which fosters the promotion of religious freedom is the work done in service of the common good....  The more men and women are at the service of others, the greater their freedom!

Recent Articles and Books of Interest

From SSRN:
From SmartCILP:
New Books:

Sunday, September 21, 2014

Recent Prisoner Free Exercise Cases

In Williams v. Lemmon, 2014 U.S. Dist. LEXIS 129217 (SD IN, Sept. 16, 2014), an Indiana federal district court dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint about a 30-day suspension of Jumah services.

In Grohs v. Santiago, 2014 U.S. Dist. LEXIS 130139 (D NJ, Sept. 17, 2014 ( NJ, Sept. 17, 2014), a New Jersey federal district court dismissed, with leave to amend, an inmate's complaint that he had to dispose of religious material because of lack of storage space.

In Brown v. Mathena, 2014 U.S. Dist. LEXIS 130574 (WD VA, Sept. 16, 2014), a Virginia federal district court dismissed various complaints by a Nation of Islam inmate that the Common Fare diet does not give him nutritional food that meets his religious dietary requirements.

In Martz v. Sci-Coal Twp. Therapeutic Community, 2014 U.S. Dist. LEXIS 130823 (MD PA, Sept. 18, 2014), a Pennsylvania federal district court dismissed an inmate's claim that his rights under the Establishment Clause were infringed when he was denied parole because he did not complete a substance abuse program allegedly religious in nature.

In Cowart v. Allen, 2014 U.S. Dist. LEXIS 130693 (MD AL, Sept. 18, 2014), an Alabama federal district court adopted a magistrate's recommenation (2014 U.S. Dist. LEXIS 131149, Aug. 26, 2014) and dismissed an inmate's complaint that prison policy denies tobacco use during Native American religious ceremonies, that guards interrupt ceremonies, limit access to fires and a sweat lodge, allow gang members on sacred ground and that the chaplain desecrated his religious objects.

In Short v. Martyn, 2014 U.S. Dist. LEXIS 131352 (WD MI, Sept. 19, 2014), a Michigan federal district court permitted an inmate to proceed on a retaliation claim (but not a free exercise claim) against a corrections officer who fired plaintiff from his prison job after he attended a non-denominational Christian conference.

In Green v. Beck, 2014 U.S. Dist. LEXIS 131647 (ED NC, Sept. 9, 2014), a North Carolina federal district court dismissed a former inmate's complaints about the handling of his request for recognition  of his religious name. He was ultimately issued a new identifcation card.

In Powers v. Clarke, 2014 U.S. Dist. LEXIS 131886 (ED VA, Sept. 17, 2014), a Virginia federal district court dismissed an inmate's complaint that authorities refused to recognize Nation of Gods and Earths (Five Percenters) as a religion and instead have classified it as a gang and restricted distribution of its literature.

Saturday, September 20, 2014

State University Reaches Compromise With Football Team Members On Wearing Cross Decal

Inquisitr reports that Arkansas State University officials have reached a compromise with member of the school's football team-- the Red Wolves-- who want to honor their recently murdered teammate and their recently deceased equipment manager by wearing a Christian cross with the men's initials on it on team helmets this season. (See prior posting.) So long as the student athletes purchase the cross decals themselves and personally place them on their helmets, the University will not object. Liberty Institute, which had written the University (full text of letter) complaining about its original decision to disallow the decals, issued a press release praising the University's decision last Wednesday to now allow them.

Oklahoma Trial Court Rejects Challenge To State Capitol Ten Commandments

AP reports that an Oklahoma state trial court has dismissed an Establishment Clause challenge to a Ten Commandments monument on Oklahoma State Capitol grounds. The court in Prescott v. Capitol Preservation Commission, (OK Cnty Dist. Ct., Sept. 19, 2014), held that the monument, which is on statehouse grounds that have 51 other monuments as well, held that "the Ten Commandments monument on the Oklahoma Capitol grounds is constitutional because of its historical value." According to AP:
The 6-foot-tall granite monument was authorized by the Legislature in 2009 and was erected in 2012 after Republican state Rep. Mike Ritze and his family paid nearly $10,000 for it. The monument's placement has led others to seek their own on the Capitol grounds, including a satanic group that earlier this year unveiled designs for a 7-foot-tall statue of Satan.
In a release reacting to the decision, the Oklahoma ACLU said:
We respectfully disagree with the decision of the court.... [I]t is offensive to [plaintiffs] that this sacred document has been hijacked by politicians. We will appeal this decision and ask the Oklahoma Supreme Court to find that the Oklahoma Constitution does not give the government the power to cheapen inherently religious texts.
(See prior related posting.) [Thanks to How Appealing for the lead.]

Friday, September 19, 2014

Congressional Committee Holds Hearing On Protecting International Religious Freedom

The U.S. House Committee on Oversight & Government Reform held a hearing yesterday on "Protecting International Religious Freedom."  A video of the full hearing and trascripts of the six witnesses' prepared statements are available on the Committee's website.

Pakistani State's Supreme Court Invalidates Appointments of State's Shariat Court Judges

The Supreme Court of the Pakistani state of Azad Jammu and Kashmir has handed down a decision invalidating the procedures for appointing the jurisdiction's Shariat Court judges. In Mughal v. Azad Government of the State of  Jammu and Kashmir, (AKJ Sup. Ct., Aug. 25, 2014), the Court concluded that appointments to the Shariat Court since 1993 are void because the law did not provide for consultation with the relevant chief justices before Shariat Court judges are appointed, did not provide for removal of Shariat Court judges for misconduct or incapacity, and did not require appointment of at least one Islamic legal scholar to the court. In order to avoid the order creating a vacuum, the Supreme Court instructed the government to immediately appoint High Court judges as judges of the Shariat Court as well. Pakistan's Daily Times reports on the decision, which it says was released on Sept. 17.

Group Says Justice Ginsburg Made Improper Comment On Possible Review of Same-Sex Marraige Cases

Liberty Counsel issued a press release yesterday contending that U.S. Supreme Court Justice Ruth Bader Ginsburg violated the Judicial Code of Conduct in remarks she made to an audience at the University of Minnesota Law School.  Ginsburg apparently told the audience that there would be "no need for us to rush" in reviewing challenges to same-sex marriage bans if the 6th Circuit in four cases pending before it does not create a split among circuits by upholding the bans.  She continued saying that there would be "some urgency" to review if a split is created.  Liberty Counsel says that this amounted to comment on the merits of an impending case. Technically, the Judicial Conference's Code of Conduct is not binding on Supreme Court Justices.

Cert. Filed In Case of Police Officer Who Refused To Attend Appreciation Event In Mosque

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Fields v. City of Tulsa.  In the case, the 10th Circuit dismissed a complaint filed by a Tulsa, Oklahoma police captain who was disciplined after he refused on religious grounds to comply with an order to arrange for two officers and a supervisor from his shift to attend a law enforcement appreciation day held at a mosque. American Freedom Law Center which represents plaintiff has more background on the case and links to all of plaintiff's pleadings.

Thursday, September 18, 2014

Catholic Non-Profits Object To Newly Revised Contraceptive Mandate Rules

As reported yesterday by the Southwest Florida News-Press, Catholic non-profit instituitons have signaled their dissatisfaction with the Interim Final Rules under the Affordable Care Act issued last month in an attempt to meet objections to the contraceptive coverage mandate. (See prior posting.) In a Motion for Preliminary Injunction (full text) filed last week by the Becket Fund on behalf of Ave Maria University, the non-profit Catholic college takes issue with the government's claim that the new rules are consistent with the Supreme Court's order in the Wheaton College case:
The augmented rule demands far more than what the Supreme Court required in Wheaton, and, in fact, is substantively indistinguishable from the original rule that the Wheaton Court enjoined. Rather than simply requiring notice that Ave Maria is a religious nonprofit with a religious objection, the augmented rule would require Ave Marie to provide its insurance company’s name and contact information for the specific purpose of allowing HHS to issue a notice requiring the insurer to provide the exact same items through Ave Maria’s healthcare plan as if Ave Maria had given the insurer Form 700 directly. 
Simply routing the form through HHS is a distinction without a difference....

Air Force Will Allow Enlistees and Officers To Drop "So Help Me God" From Oath

The U.S. Air Force announced yesterday that effective immediately it would allow enlisted members and officers who wished to do so to omit the words "So help me God" from enlistment and officer appointment oaths.  The change comes after the Department of Defense General Counsel issued an opinion concluding that the omission is permissible despite language in federal statutes setting out the language of the oaths that include the phrase. The Air Force requested the opinion after an enlisted man who is an atheist insisted on omitting the phrase. (See prior posting.) According to ABC News, the other branches of the military already allow the omission, as did the Air Force until a policy change last year.

Poland's Supreme Court Upholds Airport Security Requirement To Remove Sikh Turban

According to Sikh Sangat News, Poland's Supreme Court yesterday ruled against Shaminder Singh Puri, an environmental expert who does a great deal of international travel, who sued the the Chief of Poland's Border Guard for violation of his religious rights.  Puri, a practicing Sikh, was asked on five occasions between 2009 and 2011 to remove his turban at Warsaw Airport. Puri, seeking damages and an apology, argued that security officials acted disproportionately by immediately requiring him to remove  his turban instead of first using other screening methods.  The Supreme Court held however that security guards were respectful of Puri's religion and, when ordering him to remove his turban, allowed him to do so in a separate room away from other passengers.

Wednesday, September 17, 2014

Court Says Hospital's Retirement Plan Is "Church Plan," Rejecting Magistrate's Recommendation

In Medina v. Catholic Health Initiatives, (D CO, Aug. 26, 2014), a Colorado federal district court disagreed with the interpretation of ERISA in a federal magistrate judge's recommendation (see prior posting) and held that a Catholic health system's retirement plan is an exempt "church plan." This is one of a series of cases filed around the country claiming an IRS 2002 Private Letter Ruling was legally incorrect in allowing plans that were not "created" by a church to claim the exemption. The suits seek to require the religiously-affiliated hospital plans to meet ERISA's funding and other requirements. The court held that it is enough under the relevant statutory provision that the retirement plan is "maintained by an organization controlled by or associated with a church...." BNA Daily Report for Executives (Aug. 28) [subscription required] reports that with this decision, federal district courts are split 2-2 on the issue, with four more cases pending.

Diocese Challenge To Charter School's Leasing of Catholic High School Property Moves Ahead

In Roman Catholic Diocese of Brooklyn, New York v. Christ the King Regional High School, (NY Queens Co. Sup. Ct., Aug. 21, 2014), a New York state trial court denied a Catholic high school's motion to dismiss a declaratory judgment action filed against it by the Brooklyn Diocese challenging its decision to lease a substantial portion of its property to a non-sectarian charter middle school. In 1976 the Diocese conveyed the school property to the educational corporation that operated the Catholic high school on the condition that the property would be reconveyed to the Diocese if it ceased to be used for a Catholic high school. While under New York property law failure to record the condition extinguished it as a possibility of reverter, the court held that the restriction is still enforceable as a matter of contract law.

European Court Says Turkey Should Offer Alevis Exemption From Compulsory Religion and Ethics Courses

In Mansur Yalçın and Others v. Turkey, (ECHR, Sept. 16, 2014) (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Turkish schools have not made sufficient chagnes in required religion and ethics classes to accommodate Alevis.  As summarized in the Court's English language press release:
The fact that the curriculum of the religion and ethics classes gave greater prominence to Islam as practised and interpreted by the majority of the Turkish population than to other minority interpretations of Islam could not in itself be viewed as a departure from the principles of pluralism and objectivity which would amount to indoctrination. However, bearing in mind the particular features of the Alevi faith as compared with the Sunni understanding of Islam, the applicants could legitimately have considered that the approach adopted in the classes was likely to cause their children to face a conflict of allegiance between the school and their own values.
The Court failed to see how such a conflict could be avoided in the absence of an appropriateexemption procedure. The discrepancies complained of by the applicants between the approach adopted in the curriculum and the particular features of their faith as compared with the Sunni understanding of Islam were so great that they would scarcely be alleviated by the mere inclusion in textbooks of information about Alevi beliefs and practice.
A Chamber Judgment may be appealed to the Grand Chamber of the Court.

Professor's Law Review Article Used In Robocall By Opponent in Mayoral Race

In 2010, then-Associate Professor Jorge Elorza at Roger Williams University Law School published an interesting and sophisticated 65-page law review article in Pittsburgh Law Review titled Secularism and the Constitution: Can Government Be Too Secular?  (Given the timing, this may well have been his "tenure piece.") Elorza, now a full professor, is on leave and running as the Democratic candidate for mayor of Providence, Rhode Island.  WPRI News reported yesterday that the law review article has become the subject of a robocall attack by one of Elorza's opponents in the mayoral race, independent candidate Vincent A. “Buddy” Cianci Jr.:
The caller asks the listener to press 1 if they agree with Cianci that teaching about the existence or nonexistence of God “does not belong in schools,” or press 2 if they agree with Elorza that it would be acceptable “to teach in schools that there is no God.”

Tuesday, September 16, 2014

New Brunswick Law Society Members Call On Council To Revoke Approval of Christian Law School

In Canada, controversy over the new Christian-affiliated Trinity Western University Law School continues. The school, scheduled to open in 2016, requires students, faculty and staff to subscribe to its religious-based "community covenant" which, among other things, prohibits sex outside of heterosexual marriage. In June, the Council of the New Brunswick Law Society voted to accredit the law school, clearing the way for its graduates to practice in the province.  However, according to yesterday's Straight Talk, at a special general meeting held last week, Law Society members in an advisory vote of 137-30 called on the Council not to approve the school.

Pennsylvania Boy Charged With Desecrating Venerated Object After Facebook Photo of Simulated Sex With Jesus Statue

In Everett, Pennsylvania last week police charged a 14-year old boy with violating Pennsylvania's ban on desecration of venerated objects (18 Pa. Cons. Stat. § 5509) after he posted photos on Facebook showing him simulating oral sex with a statue of Jesus. According to a Pennsylvania State Police Report, the incident took place in July, and charges were filed in Juvenile Court on Sept. 9. Queerty reports that the statue belongs to the Christian organization Love In the Name of Christ.  An organization spokesman says it does not believe the boy should be prosecuted, and asked instead "for prayer for the young man."

Supporters of Scottish Independence Promise Protection of Catholic Schools

On Thursday, voters in Scotland will cast ballots on whether Scotland should break away from the United Kingdom and become an independent country. (Background from Wikipedia.) According to yesterday's Herald Scotland, just days ahead of the vote Roseanna Cunningham, the country's Legal Affairs Minister, promised that in the event of independence, parochial schools will be protected.  She said:
A Yes vote means that Scotland will have a written constitution and that means everyone can be assured that the constitution in place on Independence Day will uphold the rights and liberties of all, including freedom of religion and the protection of Catholic education.
In an advertisement yesterday, 100 members of the Catholic community urged a "yes" vote on independence.

Citing Hobby Lobby, Court Excuses Testimony From FLDS Member Who Has Religious Belief In Secrecy

Relying extensively on both the 10th Circuit and Supreme Court opinions in Hobby Lobby, a Utah federal district court has held that the Religious Freedom Restoration Act allows Vernon Steed, a member of the FLDS Church, to refuse to testify in a Department of Labor administrative proceeding about the internal affairs and organization of the Church.  In Perez v. Paragon Contractors, Corp., (D UT, Sept. 11, 2014), the Department of Labor sought testimony from Steed as part of its investigation of possible child labor violations involving work by FLDS children at a Utah pecan ranch harvest. Steed however claimed he believes that the identity of FLDS Church leaders, the Church's organization and its internal affairs are sacred matters, designated by God, and that he has vowed not to discuss them.  The court held:
It is not for the Court to “inquir[e] into the theological merit of the belief in question”. Hobby Lobby, 723 F.3d at 1137. “The determination of what is a ‘religious’ belief or practice is more often than not a difficult and delicate task .... However, the resolution of that question is not to turn upon a judicial perception of the particular belief or practice in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 714 (1981)....
Petitioner has failed to show that forcing Mr. Steed to answer the questions offensive to his sincerely held religious beliefs is the least restrictive means to advance any compelling interest it may have. For example, as a less restrictive alternative, Petitioner can continue with its efforts to obtain needed information from Paragon Contractors Corporation, Brian Jessop, Dale Barlow and others who contracted to manage the pecan ranch. See Hobby Lobby, 134 S.Ct. at *2780....
UPDATE: It should be noted that the body of the opinion refers to the objecting FLDS member as "Vernon Steed", while the caption labeling the motion being ruled upon refers to him as "Vergel Steed."

Air Force Grants Its First Religious Accommodation For Jewish Chaplain To Wear Beard

J Space News reports that last Wednesday the U.S. Air Force for the first time granted a religious accommodation under a January 2014 revised Department of Defense directive (see prior posting) to commission a bearded rabbi as a chaplain.  Rabbi Elie Estrin, director of a Chabad House at the University of Washington, was sworn in at McCord Air Force Base in Seattle.  In 2011 the Army commissioned a rabbi after litigation over whether he should receive an accommodation for wearing a beard. (See prior posting.)

Satanic Temple Will Seek To Hand Out Its Literature In Florida High Schools

As previously reported, once Orange County, Florida high schools allowed World Changers to distribute Bibles it had essentially created a limited public forum and felt compelled to allow Freedom From Religion Foundation to distribute at least some literature.  Now the next shoe is about to drop. Yesterday's Orlando Sentinel reports that a New York-based group, The Satanic Temple, plans to ask Orange County to allow it to hand out it literature to students so at least they will be exposed to a variety of religious opinions.  In particular it wants to hand out "The Satanic Children's Big Book of Activities" which, it says, gives students information on protecting themselves from corporal punishment at school. The Satanic Temple supports social justice causes and sees Satan as the "eternal rebel against the ultimate tyrant."