Thursday, December 11, 2014

In Germany, Humanist Students Now Can Get Holiday Excused Absence

AP reported yesterday that in Germany, the schools in Berlin have officially recognized World Humanist Day (June 21) as a holiday for which Humanist students can obtain an excused absence. This places the day on the same plane as religious holidays such as All Saints Day, Yom Kippur or Eid al-Fitr for which students of other faiths can get excused absences. [Thanks to Scott Mange for the lead.]

Colorado Supreme Court Hears Arguments On School Vouchers

The Colorado Supreme Court yesterday heard oral arguments (audio of full arguments) in Taxpayers for Public Education v. Douglas County School District.  In the case, the state court of appeals upheld  Douglas County, Colorado's "Choice Scholarship Program" under which parents of eligible students can obtain vouchers covering a  portion of the tuition costs of sending their children to certain private schools, a majority of which have religious affiliations. (See prior posting.)  AP reports on the oral arguments.

CDC Proposes Recommendations Strongly Favoring Male Neonatal Circumcision

Last week the federal government's Centers for Disease Control released for comment (Dec. 2 Federal Register) recommendations for health-care providers who are counseling male patients and parents regarding male circumcision. (Full text of Recommendations).  The recommendations focus on the benefits of male circumcision in preventing transmission of HIV and other sexually transmitted infections, and strongly recommend neonatal circumcision of boys-- a practice consistent with Jewish and some Muslim traditions.  The recommendations are positive, but more cautious, as to circumcision of adolescent and adult males. The San Francisco Chronicle reports on reactions to the recommendations.

Polish Constitutional Tribunal Rules Ban On Ritual Slaughter Unconstitutional

Poland's Constitutional Tribunal ruled yesterday, in a 5-4 decision, that a ban on kosher and halal slaughter of animals is unconstitutional. JTA reports that the ruling came in a case filed by the Union of Jewish Religious Communities in Poland and other organizations claiming that the ritual slaughter ban that went into effect last year violates the European Convention on Human Rights. As previously reported, in late 2012 the Constitutional Tribunal held that Jewish and Muslim ritual slaughter of animals without first stunning them violates Poland's animal protection laws.  That ruling ended a $500 million industry in the country of processing halal and kosher meat for export. Poland's Parliament will now take up a bill drafted by the National Council of Agricultural Chambers that would legalize ritual slaughter. Jerusalem Post reports on the tensions between local Polish Jewish leaders and the Brussels-based European Jewish Association that arose over choice of strategies to fight the ritual slaughter ban.

In Reversal, Kentucky Denies Tax Incentives To Noah's Ark Theme Park

The Louisville Courier-Journal reported yesterday that Kentucky's Tourism, Arts and Heritage Cabinet has now turned down a request by a proposed Noah's Ark theme park for $18 million in sales tax rebate incentives, despite earlier preliminary approval of the request. The state says that Ark Encounter has changed it position on hiring and now intends to discriminate in hiring on the basis of religion. The state also says that the park has evolved from a tourist attraction into a project to promote a literal reading of the Biblical book of Genesis. The state's Tourism Secretary said:
State tourism tax incentives cannot be used to fund religious indoctrination or otherwise be used to advance religion.
Attorneys for Ark Encounter say that federal and state law allow it, as a religious institution, to hire on the basis of religion, and that refusing to allow it to participate in tax incentives amounts to unconstitutional viewpoint discrimination. They say they will have no choice but to sue. (See prior related posting.)

Challenge To School Board Invocation Policy Dismissed On Standing Grounds

WIS-TV News reported yesterday on the dismissal by a Wisconsin federal district court of a challenge to the invocation policy at school board meetings in School District Five of Lexington & Richland Counties, Wisconsin.  The suit originally also challenged the District's policy on prayer at graduation (see prior posting), but the parties previously settled that claim after the school district revised its policy to allow student speakers to determine the content of their own messages. Then in Nielson v. School District Five of Lexington & Richland Counties, (D SC, Oct. 22, 2014), the federal district court dismissed claims seeking an injunction and declaratory judgment as to the school board invocations because "none of the Individual Plaintiffs attended a Board Meeting after the August 2013 Invocation Policy became effective and none remain students in District Five."  The court added, however, that plaintiffs could still pursue damage claims growing out of pre-2013 prayer practices.  But on Dec. 1, the court ordered dismissal of the action without prejudice, noting that the parties had settled the case. (Full text of dismissal order.)

Wednesday, December 10, 2014

Today Is International Human Rights Day

Today is International Human Rights Day-- a date set by the United Nations General Assembly in Res. 423(V) to celebrate the adoption on Dec. 10, 1948 of the Universal Declaration of Human Rights. The U.N. announced that this year's theme is "Human Rights 365." In a press release, the U.S. Commission on International Religious Freedom says it is marking the occasion by highlighting prisoners of conscience around the world, particularly those imprisoned because of their faith or belief.

UPDATE: The White House on Dec. 9 issued a Presidential Proclamation (full text) declaring Dec. 10 to be Human Rights Day and the week beginning Dec. 10 to be Human Rights Week.

2nd Circuit Dismisses Alien Tort Suit Charging Catholic Orders With Human Trafficking

The U.S. Second Circuit Court of Appeals has dismissed an Alien Tort Statute suit brought against several Catholic religious orders charging human trafficking,  In Ellul v. Congregation of Christian Brothers, (2d Cir., Dec. 8, 2014), the Second Circuit concluded that the Supreme Court's decision last year in the Kiobel case holding that the Alien Tort Statute does not apply extraterritorially requires dismissal of most of plaintiffs' claims.  The remainder must be dismissed on statute of limitations grounds. The suit alleged "shocking violations of internationally accepted norms." As described by the court:
Plaintiffs’ claims stem from an alleged “child migration” program undertaken in the aftermath of World War II.  As part of the scheme, the purpose of which was to populate Australia with “pure white stock” from Britain and “working boys” from Malta..., defendants allegedly took plaintiffs away from their families as children, falsely told them that their parents had died or abandoned them, and transported them to Australia, where plaintiffs and other children were made to work essentially as slaves, for long hours without pay, and were subjected to extreme physical and, in some cases, sexual abuse.

Mosque Proponents Sue Pennsylvania Township Over Zoning Variance Denial

CAIR-Philadephia announced yesterday that it has filed a federal lawsuit against Bensalem Township, Pennsylvania challenging its refusal to grant a zoning variance to a Muslim congregation, Bensalem Masjid, which seeks to build a mosque on property that it currently leases with an option to purchase. The complaint (full text) in The Bensalem Masjid Inc. v. Bensalem Township, (ED PA, filed 12/8/2014), contends that the Township's zoning ordinances allow houses of worship only in areas zoned Institutional (IN), and that there are no available properties zoned IN that could be used for a mosque. The complaint contends that the Township's zoning ordinances and regulations, and its action refusing a variance, violate RLUIPA, the 1st and 14th Amendments and the state's Religious Freedom Protection Act. Philadelphia Daily News reports on the lawsuit.

Tuesday, December 09, 2014

Senate Report on CIA Interrogation Includes Role of Religion In Prisoner Cooperation

A reported by the Washington Post, today the U.S. Senate Select Committee on Intelligence released an unclassified 525-page version of its Study of the CIA's Detention and Interrogation Program. (Full text of report). Appendix 3 in the report (.pdf pg. 488) outlines examples of inaccurate CIA testimony to the Intelligence Committee in 2007.  It includes a section captioned "The Religious Foundation for Cooperation" (.pdf pg. 511) that sets out the following inaccurate testimony given by CIA Director Michael Hayden:
This proposed program ... has been informed by our experience and it has been informed by the detainees. It's built on the particular psychological profile of the people we have and expect to get -- al-Qa'ida operatives. Perceiving themselves true believers in a religious war, detainees believe they are morally bound to resist until Allah has sent them a burden too great for them to withstand. At that point ... their cooperation in their own heart and soul becomes blameless and they enter into this cooperative relationship with our debriefers.
...we use the enhanced interrogation techniques at the beginning of this process, and it varies how long it takes, but I gave you a week or two as the normal window in which we actually helped this religious zealot to get over his own personality and put himself in a spirit of cooperation.... You recall the policy on which this is based, that we're going to give him a burden that Allah says is too great for you to bear, so they can put the burden down.
According to the Committee:
CIA records do not indicate that CIA detainees described a religious basis for cooperating in association with the CIA's enhanced interrogation technique.....
... [M]ore than two months before Abu Zubaydah began his August 2002 enhanced interrogation period, Abu Zubaydah told interrogators that "if he possessed any more information on future threats, then he would provide this information to us to help himself, claiming that 'the sharia' gives him permission to do so in his current situation.  Abu Zubaydah also made a similar statement to his interrogators approximately a week later ... stating that he had "prayed his 'Istikharah' (seeking God's guidance) and was now willing to tell what he really knew," and "that he had received guidance from God" to cooperate to "prevent his captured brothers from having a difficult time."

Most of City Council Walks Out On Atheist's Invocation

In Lake Worth, Florida last Tuesday, the mayor and three of the four city commissioners walked out of the commission chamber as atheist Preston Smith approached the podium to offer the invocation.  WPTV News reports that yesterday Mayor Pam Triolo said her action was not because Smith was an atheist, but because of a Tweet Smith allegedly authored last summer giving an offensive interpretation of scripture. Smith's invocation (video included in article) called for building a better community without religious division.

DOJ Expands Ban on Law Enforcement Profiling To Include Religion and Other Characteristics

Yesterday, U.S. Attorney General Eric Holder announced the issuance of new guidelines on profiling by federal law enforcement officials (and local officials participating in federal task forces).  The new Guidance for Federal Law Enforcement Agencies (full text) adds national origin, gender, gender identity, religion, and sexual orientation to the already existing prohibitions on racial and ethnic profiling imposed in 2003.  The 11-page document sets out both in general principles and examples guidance on when the covered characteristics can and cannot be used.

Officials may still use race, religion, ethnicity, or any of the other prohibited bases for profiling when
there is trustworthy information, relevant to the locality or time frame, that links persons possessing a particular listed characteristic to an identified criminal incident, scheme, or organization, a threat to national or homeland security, a violation of Federal immigration law, or an authorized intelligence activity.
Here are two interesting examples from the many set out in the new Guidance:
  • A law enforcement officer who is working as part of a federal task force has received a reliable tip that an individual intends to detonate a homemade bomb in a train station during rush hour, but the tip does not provide any more information.  The officer harbors stereotypical views about religion and therefore decides that investigators should focus on individuals of a particular faith. Doing so would be impermissible because a law enforcement officer’s stereotypical beliefs never provide a reasonable basis to undertake a law enforcement or intelligence action.
  • An FBI field office attempts to map out the features of the city within its area of responsibility in order to gain a better understanding of potential liaison contacts and outreach opportunities. In doing so, the office acquires information from public sources regarding population demographics, including concentrations of ethnic groups. This activity is permissible if it is undertaken pursuant to an authorized intelligence or investigative purpose. The activity would not be permitted without such an authorized purpose or in circumstances that do not otherwise meet the requirements of this Guidance.
MSNBC reports on release of the new guidelines.

Burma Sues Author For Insultig Buddhism

In Burma last month, an official of the Department of Immigration in northwestern Chaung-U Township, at the request of local Buddhist clergy, filed a lawsuit against prominent writer and National League for Democracy member Htin Lin Oo, charging him with violation of Burmese statutes prohibiting the causing of religious offense.  Irrawaddy reported yesterday on the suit filed Nov. 20 which grew out of a two-hour speech that Htin Lin Oo delivered at a literary event on Oct. 23.  In the speech, he decried those who use Buddhism as an excuse for prejudice and discrimination. When a 10-minute excerpt from the speech was widely shared on social media, the Patriotic Buddhist Monks Union issued statement denouncing it. Htin Lin Oo says that people should listen to the entire speech before they react.  The suit charges Htin Lin Oo with violating Myanmar Penal Code Sec. 295-A (Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs), and Sec. 298 (Uttering words, etc; with deliberate intent to wound religious feelings).

Monday, December 08, 2014

Former High School Softball Players' Suit On School Religious Activites Moves Ahead

In Ryan v. Mesa Unified School District, (D AZ, Dec. 5, 2014), three former members of a Mesa, Arizona high school varsity girls' softball team sued the school district and the softball coach, Joseph Goodman, over various religious activities. The court held that plaintiffs lacked standing to challenge the school's LDS Church released time program. However, the court permitted plaintiffs to move ahead with two other claims, but only against Coach Goodman:

First, the court allowed an Establishment Clause claim alleging that during the 2013-14 girls softball season, certain players were appointed “prayer leaders” to lead a team prayer at the beginning of every game. Plaintiffs were dismissed from the team after one of them announced, and the others supported, an end to these prayers.

Second, the court allowed a free speech claim growing out of a 2014 softball tournament where hip-hop and other popular music was played to get players in a proper mental state for the game. One of the plaintiffs, the daughter of an LDS Church member, found the music offensive to her religious sensibilities. During the same tournament, the LDS parent of that plaintiff read a speech from a Tweet by another of the plaintiffs, and the content of the Tweet was reported to Coach Goodman.  Apparently this was related to the reason for plaintiffs' dismissal from the team.

Claims of Mislabeling of Dietary Supplements Did Not Infringe Free Exercise Rights

In State of Texas v. Valerie Saxion, Inc., (TX App., Dec. 4, 2014), a Texas state appellate court rejected arguments by defendant and her company that the state was infringing their free exercise rights by proceeding against them with charges that their mislabeling and misbranding of dietary supplements violated the Texas Food, Drug, and Cosmetic Act and the Deceptive Trade Practices Act. Defendant argued that her statements were based on sincerely held religious beliefs.  The court concluded, however:
The twenty-four “practices in pursuit and conduct of trade or commerce” listed by the State in its live pleading do not seek to restrain Saxion from practicing any religious beliefs or expressing any religious opinions..... Rather, the relief sought by the State attempts to regulate the advertising and sale of certain dietary supplements as a proper restraint on commercial speech necessary to protect the public..... Therefore [defendant] ... failed to allege a viable ultra vires claim with regard to her free-exercise-of-religion rights and the attorney general’s discretion and authority to enforce the TFDCA and DTPA.

Recent Articles of Interest

From SSRN:
From SmartCILP:
  • Hossein Mir Mohammad Sadeghi, Filling the Gap In Favor of the Accused: The Approach of Islamic Criminal Law In Light of the Rule No Punishment In Case Of Doubt, [Abstract], 29 Tulane European & Civil Law Forum 147-156 (2014).

Sunday, December 07, 2014

Recent Prisoner Free Exercise Cases

In Mitchell v. Fox, (9th Cir., Dec. 5, 2014), the 9th Circuit affirmed the dismissal of an inmate's complaint that prison officials destroyed and confiscated his religious property. Plaintiff had not shown that this constituted a substantial burden on his practice of religion.

In Mehmood v. United States Marshals Service, 2014 U.S. Dist. LEXIS 166386 (ED CA, Dec. 1, 2014), a California federal magistrate judge permitted a Muslim federal pre-trail detainee housed in a county jail to proceed with claims under the Free Exercise and Establishment clauses objecting to the diet furnished to him in response to his request for halal food, and denial of various religious items and of the ability to leave his cell 5 times a day to pray. His equal protection and RLUIPA claims were dismissed with leave to amend.

In Evans v. Godinez, (IL App., Dec. 1, 2014), an Illinois appellate court affirmed the trial court's dismissal of a complaint by a Nation of Islam inmate seeking space and time for weekly inmate-led NOI study groups and prayer sessions.

In Brame v. Hodge, 2014 U.S. Dist. LEXIS 166586 (SD IL, Dec. 2, 2014), an Illinois federal district court denied a preliminary injunction to a Hebrew Israelite inmate who claims he suffered retaliation because of a lawsuit he filed complaining that he was denied a kosher diet, attendance at Jewish services, and participation in Jewish holidays.

In Reiske v. Bruno, 2014 U.S. Dist. LEXIS 167443 (D CT, Dec. 3, 2014), a Connecticut federal district court dismissed a Wiccan inmate's complaint that he was not permitted to purchase various religious items, including religious oils and a pendant cord.

In Ajala v. West, 2014 U.S. Dist. LEXIS 168602 (WD WI, Dec. 5, 2014), a Wisconsin federal district court vacated its earlier order and allowed a Muslim inmate to proceed with his complaint that he was denied Ramadan meal accommodations, but affirmed the earlier dismissal of his complaint regarding his Eid-al-Fitr meal.

NYT Surveys Atheists' Push To Remove Belief Requirement For Public Office

The New York Times posted an article yesterday titled In Seven States, Atheists Push to End Largely Forgotten Ban. Reporting on the bans in Maryland, Arkansas, Mississippi, North Carolina, South Carolina, Tennessee and Texas, it says in part:
Maryland and six other states still have articles in their constitutions saying people who do not believe in God are not eligible to hold public office. Maryland’s Constitution still says belief in God is a requirement even for jurors and witnesses.
Now a coalition of nonbelievers says it is time to get rid of the atheist bans because they are discriminatory, offensive and unconstitutional. The bans are unenforceable dead letters, legal experts say, and state and local governments have rarely invoked them in recent years. But for some secular Americans, who are increasingly visible and organized, removing the bans is not only a just cause, but a test of their growing movement’s political clout.

Iowa's Flag Desecration and Misuse Laws Invalidated In Suit By Westboro Baptist Church Demonstrators

In Phelps v. Red Oak Police Chief, (SD IA, Dec. 3, 2014), an Iowa federal district court held Iowa's flag desecration and flag misuse statutes unconstitutional on their face because of their overbreadth.  The holding comes in a free expression challenge to the laws by members of the Westboro Baptist Church who regularly picket funerals of soldiers and participate in other protests. Plaintiffs allege that Red Oak police threatened to enforce the statutes against them, leading them to refrain from dragging the flag on the ground and wearing it on their bodies as part of their demonstrations. The court rejected plaintiff's additional argument that the laws infringed her free exercise of religion.

Saturday, December 06, 2014

IRS Shifts Offices Responsible For Legal Rulings On Tax Exempt Organization Issues

In Announcement 2014-34, issued last Wednesday, the Internal Revenue Service announced that beginning Jan. 2, it is shifting responsibility for making various legal rulings regarding tax-exempt organizations from the much-criticized Tax Exempt and Government Entities Division based in Cincinnati to the office of Associate Chief Counsel (Tax Exempt and Government Entities) based in Washington. Shifting to Washington is "the authority to prepare revenue rulings, revenue procedures, announcements, and notices, and to issue technical advice (including technical advice memoranda (TAMs)), certain letter rulings, and certain information letters" on tax-exempt organization issues.  The Cincinnati office will retain authority to issue determination letters on the exempt status of organizations under §§ 501(c) and 521.  Law 360 reports on the IRS action.