Defense Authorization Act Encourages Religious Diversity In The Armed Forces

After an initial veto by President Obama of the 2016 National Defense Authorization Act, Congress passed a revised version last week and on Monday sent it to the President for his signature.  It is expected the President will sign the bill. (Defense One.) The 1278-page bill (full text) contains at least 3 provision relating to religion or religious services in the military.

Section 504 permits extension of the mandatory retirement age of a chief chaplain or deputy chief of chaplains to 68. Section 898  provides that the Department of Defense may not preclude non-profit organizations from competing for contracts for religious related services at military installations.

The most important religion-related provision, however, is Section 528 which is a "sense of Congress" resolution encouraging diversity in the military. It reads:

(a) Findings-- Congress finds the following: (1) The United States military includes individuals with a variety of national, ethnic, and cultural backgrounds that have roots all over the world. (2) In addition to diverse backgrounds, members of the Armed Forces come from numerous religious traditions, including Christian, Hindu, Jewish, Muslim, Sikh, non-denominational, non-practicing, and many more. (3) Members of the Armed Forces from diverse backgrounds and religious traditions have lost their lives or been injured defending the national security of the United States. (4) Diversity contributes to the strength of the Armed Forces, and service members from different backgrounds and religious traditions share the same goal of defending the United States. (5) The unity of the Armed Forces reflects the strength in diversity that makes the United States a great nation.

(b) Sense of Congress-- It is the sense of Congress that the United States should (1) continue to recognize and promote diversity in the Armed Forces; and (2) honor those from all diverse backgrounds and religious traditions who have made sacrifices in serving the United States through the Armed Forces.

County Tries To Neutralize Courthouse Drawing of Jesus By Hanging Many Other Paintings

The Lexington Herald-Leader on Monday reported that a Kentucky county judge-executive responded to a complaint about a picture of Jesus hanging in the local courthouse by inviting local artists to submit other pictures to hang along side it.  After the Freedom From Religion Foundation sent a letter to Breathitt County Judge-Executive John Lester “JL” Smith in August asking him to remove the drawing of Jesus, Smith's response was to seek other artwork so that the walls now feature everything from landscapes to a portrait of Rachel Maddow to a drawing of Mr. Magoo.  An FFRF attorney argues however that this does not cure the original religious purpose for hanging the charcoal of a man kneeling before Jesus with the caption "In your place what would Jesus do."

CORRECTION: No Injunction Issued Against California's Reproductive FACT Act; Case Still Pending

Based on an error in a report by a news service, Religion Clause incorrectly reported last week that a California federal district court had issued a preliminary injunction barring the state of California from enforcing its recently enacted Reproductive FACT Act against two religiously affiliated pregnancy counseling centers. A proposed order has been filed by plaintiffs in A Woman's Friend Pregnancy Resource Center v. Harris, but a hearing on it will not take place until Dec. 18. Thanks to Stephen Blakeman for alerting me to the error, which the news service caught two days ago.

Kasich Would Create Agency To Promote Judeo-Christian Values To Counter ISIS

In a speech at the National Press Club yesterday, Ohio Governor John Kasich, a contender for the Republican presidential nomination, told his audience that if elected he would set up an agency with a mandate to promote Judeo-Christian values around the world.  According to the Huffington Post, Kasich says the agency would promote human rights, democracy and the freedom of speech, religion and association as a counter to the message of Islamic militants. Kasich would distribute the information to countries in the Middle East, and to China, Iran and Russia as part of the "battle of ideas" with ISIS.

Facebook Is Immune From Suit For Removing Sikh Group's Page In India

In Sikhs For Justice ("SFJ"), Inc. v. Facebook, Inc., (ND CA, Nov. 13, 2015), a California federal district court dismissed a lawsuit by a Sikh human rights group that objected to Facebook's blocking of access in India to the group's Facebook page.  The suit alleges that Facebook discriminated in violation of the public accommodation provisions of the 1964 Civil Rights Act when it collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state. (See prior posting.) The court held that Sec. 230 of the Communications Decency Act immunizes Facebook from liability.  That section immunizes interactive computer services from liability as a publisher of content posted by third parties.  The court agreed with Facebook that the lawsuit "is entirely based on Defendant’s blocking of the SFJ Page in India, which is publisher conduct immunized by the CDA." Courthouse News Service reports on the decision.

U.S. Catholic Bishops Debate Voters' Guide In Light of Pope Francis' Priorities

The U.S. Conference of Catholic Bishops report that among the actions taken yesterday at their Fall General Assembly was the adoption of a new introductory note to and limited revision of their quadrennial statement on political responsibility, "Forming Consciences for Faithful Citizenship." According to Religion News Service yesterday, the debate on revision of this voters' guide highlighted the split between those bishops who want to echo the priorities of Pope Francis and those who support more traditional priorities. San Diego Bishop Robert McElroy, objecting that revisions had not gone far enough, told the Assembly:

I believe that this document is gravely hobbled. Specifically, I think the pope is telling us that alongside the issues of abortion and euthanasia — which are central aspects of our commitment to transform this world — poverty and the degradation of the Earth are also central.  But this document keeps to the structure of the worldview of 2007. It does not put those there.

India's Supreme Court Orders Crematorium Moved To Save Taj Mahal From Pollution Damage

In India yesterday, the country's Supreme Court ordered an over 200-year old crematorium near the Taj Mahal to either close down or be replaced by an electric crematorium.  According to the Times of India, smoke from the wooden funeral pyres burning 500 feet away from the Taj Mahal are causing deterioration of the Taj Mahal's marble dome and minarets. The white marble dome is now yellow with pollution from the 25 cremations every day.  Pro-Hindu political parties and religious groups oppose moving the crematorium.

New Muslim Political Party Launched In Australia

In Australia yesterday, a Sydney businessman launched a new political party, the Australian Muslim Party.  According to 9News, the new party hopes to run candidates for the Senate in all states and territories next year.  Businessman Diaa Mohamed, founder of the new party, says that  it is important that the Muslim community have a political voice.  The party was formed in part in response to the recent creation of six anti-Islamic parties.  Non-Muslims are welcome to join the party.

Organization Launches 13th Annual "Friend or Foe Christmas" Campaign

Liberty Counsel announced yesterday that it is launching its 13th annual Friend or Foe Christmas Campaign.  It says the purpose of the campaign is "to make sure Christmas is not censored in public places."  As part of the campaign, Liberty Counsel publishes its Naughty or Nice list of retailers, praising those who use "Christmas" in their products and ads, while panning those which instead use the more generic term "Holiday." The campaign also seeks to encourage governmental organizations to embrace Christmas, saying: "public officials in schools and county offices are often cowering to grinch-like atheist organizations threatening lawsuits."

Republican Candidates Express Concerns About Muslims In U.S. After Paris Terrorism

The New York Times reported yesterday on statements by Republican presidential candidates reflecting a growing suspicion of Muslims after the recent terrorism in Paris:

[Donald] Trump, who said last month that he would be open to shutting down mosques as part of the fight against Islamic State militants, reiterated on Monday that the idea should be “studied.”

“I would hate it do it but it’s something that you’re going to have to strongly consider because some of the ideas and some of the hatred, the absolute hatred, is coming from these areas”....

Ben Carson ... called on Congress to defund its program to give safe passage to Syrian refugees. The retired neurosurgeon also suggested....  “I believe that we need to put a lot more pressure on the clerics, the imams, to make a very distinct line between what ISIS, ISIL, the radical Islamic jihadists are doing, and what traditional Islam is about”....

Jeb Bush ... also expressed concern about refugees from the Middle East entering the United States and said ... Christians and Muslims who are fleeing Syria should be treated differently. “We should focus our efforts as it relates to refugees for the Christians that are being slaughtered,” Mr. Bush said.

At a news conference, President Obama particularly criticized suggestions that there should be a religious test for which refugees will be admitted.

FBI Releases 2014 Hate Crime Statistics

The FBI this morning released its report on Hate Crime Statistics 2014.  The report shows 5,479 criminal incidents motivated by bias toward race, gender, gender identity, religion, disability, sexual orientation, and ethnicity. This is down from 5,928 in 2013.  A further breakdown of the data shows that 17.1% of the single-bias incidents were motivated by religious bias.  18.7% were based on bias toward sexual orientation, and 48.3% reflected racial bias. Of the 1,140 victims of hate crimes motivated by religious bias, 56.8% were motivated by anti-Jewish bias, while 16.1% were motivated by anti-Muslim bias. 6.1% of the incidents were anti-Catholic; 2.5% were anti-Protestant; and 1.2% were anti-Atheist/Agnostic.  11% of the incidents were based on bias against other religions. [Thanks to Michael Lieberman for the lead.]

Recent Articles of Interest

From SSRN:

• Perry Dane, Foreword: On Religious Constitutionalism, (16 Rutgers Journal of Law and Religion 460 (2015)).
• Marsha B. Freeman, Liberal, Conservative, and Political: The Supreme Court's Impact on the American Family in the Uber-Partisan Era, (Journal of Gender, Race and Justice, Vol. 18, 2015).
• Haider Ala Hamoudi, 'Lone Wolf' Terrorism and the Classical Jihad: On the Contingencies of Violent Islamic Extremism, (Florida International University Law Review, Forthcoming).
• Haider Ala Hamoudi, The Ironies of Shi'i Law, ("Regulating Religion" Conference sponsored by the Centre for Asian Studies, National University, Singapore, Dec. 2015).
• Marc O. DeGirolami, Virtue, Freedom, and the First Amendment, (Notre Dame Law Review, Forthcoming).
• Giuseppe Zago, A Victory for Italian Same-Sex Couples, A Victory for European Homosexuals? A Commentary on Oliari v Italy, (Article 29, August 21, 2015).
• Muhammad Mushtaq Ahmad, The Crime of Rape and the Hanafi Doctrine of Siyasah, (Pakistan Journal of Criminology, 6:1 (2014), 161-192).
• Terry A. Maroney & Phillip J. Ackerman-Lieberman, 'As a Father Shows Compassion for His Children': Ancient and Contemporary Perspectives on Judicial Empathy, (3 Journal of Law, Religion and State, 239 (2014)).

From elsewhere:

• Vol. 35, No. 6 of the National Center for Science Education has a series of articles reflecting on the tenth anniversary of the Kitzmiller (intelligent design) decision.

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis, 2015 U.S. Dist. LEXIS 151861 (ED CA, Nov. 6, 2015), a California federal magistrate judge recommended dismissing an inmate's complaint that he was not permitted by Jewish chaplains to convert to Judaism because he was serving a life sentence.

In Womack v. Perry, 2015 U.S. Dist. LEXIS 152588 (ED CA, Nov.10, 2015), a California federal magistrate judge dismissed with leave to amend an inmate's general complaint that the warden has denied inmates in C-yard Friday services for the past 8 months.

In Atkinson v. MacKinnon, 2015 U.S. Dist. LEXIS 153033 (WD WI, Nov. 12, 2015), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that retaliatory action (reducing his prison job grade and hours) was taken when he complained of religious harassment.  The court held that plaintiff had no more administrative remedies because the warden had promised to investigate his claim.

In Spears v. Curcillo, 2015 U.S. Dist. LEXIS 153320 (MD PA, Nov. 12, 2015), a Pennsylvania federal district court permitted an inmate to move ahead with his complaint that his Bible was confiscated when he was moved into the Restricted Housing Unit.

In Holcomb v. Quinn, 2015 U.S. Dist. LEXIS 153572 (D SC, Nov. 12, 2015), a South Carolina federal district court adopted a magistrate's recommendation (2015 U.S. Dist. LEXIS 153789, Oct. 21, 2015), and dismissed without prejudice an inmate's complaint that the free exercise rights of a 3A Qabalah group were infringed when a corrections officer required them to remove the strings they wore on their left wrists.

Suit Claims Hospital's Mistake About Patient's Religion Led To Withholding Treatment

Courthouse News Service reports on a lawsuit filed last month (Oct. 13)  in a Tennessee state trial court alleging that a hospital's mistake about a patient's religious beliefs led to the patient's death.  Merle Piper was diagnosed with kidney failure, but for a number of days was denied potentially life-saving treatment because his medical chart incorrectly stated that he was a Jehovah's Witness.  Doctors though that meant he objected to such treatment.  The lawsuit against Cumberland Medical Center in Crossville, Tenn., two doctors and other John Doe defendants seeks damages for wrongful death and medical malpractice.

New Mexico Supreme Court Invalidates State Textbook Loans To Private School Students

In Moses v. Skandera, (NM Sup. Ct., Nov. 12, 2015), the New Mexico Supreme Court in a unanimous opinion upheld a state constitutional challenge to the New Mexico Instructional Material Law.  That statute allows the state to lend secular textbooks to private and parochial school students.  New Mexico's Constitution, Art. XII, Sec. 3 (a Blaine amendment provision) provides in part:

no ... funds appropriated, levied or collected for educational purposes, shall be used for the support of any sectarian, denominational or private school, college or university.

Reversing the state court of appeal (see prior posting), the state Supreme Court held that this constitutional provision is more restrictive that the state or federal Establishment Clause and bars textbook loans:

Private schools benefit because they do not have to buy instructional materials with money they obtain by tuition or donations and they can divert such money to other uses in their schools. Consistent with the rules of statutory construction and the majority of jurisdictions interpreting similar state constitutional provisions, the IML violates Article XII, Section 3 because it provides support to private schools

Albuquerque Journal reports on the decision.

Supreme Court Grants Review Of Texas Restrictions On Abortion Clinics

The U.S. Supreme Court today granted certiorari in the Texas abortion law case, Whole Woman’s Health v. Cole, (Docket No. 15-274, cert. granted 11/13/2015). (Order List.) Links to the 5th Circuit's opinion in the case, the petition for certiorari, the reply brief and amicus briefs are available at SCOTUSblog. According to USA Today:

The justices will decide whether tough new restrictions placed on abortion clinics and doctors in Texas constitute an "undue burden" on women seeking legal abortions and should be struck down.

The restrictions -- forcing doctors to have admitting privileges at nearby hospitals and requiring clinics to meet standards for outpatient surgery centers -- threaten to leave the state with only 10 clinics clustered in four population centers and along the Mexican border. 

Indiana Agrees To Narrow Interpretation of Sex Offender Restriction, Alleviating Religious Freedom Issue

AP reported yesterday that the ACLU of Indiana has agreed to a judge's dismissal of a lawsuit it filed (see prior posting) challenging restrictions on serious sex offenders after the state agreed to an interpretation of the law that essentially resolves the problem.  Indiana Code § 35-42-4-14 bars serious sex offenders from entering "school property," and the ACLU feared that this had the effect of prohibiting these offenders from attending worship services in churches, mosques or synagogues located on the same property as parochial schools. However now the state agrees that the ban only applies to worship services when they are held in a building owned by a private school (or leased by it).  It does not apply to worship services in the church, mosque or synagogue's own building.

Suit Charges Fatal Religious Harassment of Christian Student In Mississippi

A civil rights suit filed in a Mississippi federal district court last week claims that the failure of school officials to respond adequately to the severe religious bullying of a 12-year old Christian student led to the student's death.  The complaint (full text) in Malone v. Moss Point School District, (SD MS, filed 11/6/2015), alleges that 7th-grade student Lorel Ka'heim Malone was "bullied, teased, and harassed about his size, clothing, looks, and above all, his religious beliefs and practices." His middle-school classmates bullied him over his handing out of religious crosses, pictures of angels, and his slogan against bullying "be a hero, take a stand." The school responded to complaints about the bullying only by transferring Lorel to another math class, but did nothing to punish the students who were guilty of the bullying. In March 2014, Lorel died as the result of heart problems stemming from a physical attack by the same students who had been bullying him. The suit alleges that school officials' deliberate indifference violated Lorel's rights under the equal protection and due process clauses of the 14th Amendment. The (Biloxi, Miss.) Sun Herald reported on the lawsuit.

As Indian Prime Minister Visits Britain, Religious Minorities' Rights Are Raised

India's Prime Minister Narendra Modi, head of the Hindu nationalist Bharatiya Janata Party (Indian People's Party) began an important 3-day formal visit to Britain yesterday. However his visit has been dogged by concerns on at least two fronts regarding the rights of religious minorities in India. According to The Guardian:

In the last few months, mobs of fanatics, some linked to his party, the BJP, have lynched Muslims for eating, carrying or possessing beef, or on mere suspicion of having done so.... Most of all, however, critics say it was Modi himself who spawned the narrative of beef as a critical issue during elections last year by warning of a “pink revolution” (a widespread slaughter of cows) if his party didn’t win.

Meanwhile, Sikhs have a different concern, and have enlisted Britain's Labour Party leader Jeremy Corbyn in their cause. According to an NSO Press Release"

The office for the leader of the Labour Party has said Jeremy Corbyn will be taking up the issue of the 1984 Sikh genocide with the Indian premier during his visit to Britain this week.... [P]rior to Mr Modi’s landslide victory, he and his party had placed the blame for the killings of Sikhs on the then Congress government. Furthermore, following appointment to office Mr Modi’s Home Minister described the killings as “genocide”.... [However, according to a Sikh leader in the UK] ... "Mr Modi has done nothing to bring identified Congress leaders who urged gangs of hooligans, to kill, murder and burn Sikh men, women and children, to justice. They now freely roam the streets gloating of their achievements to the bewilderment of relatives of those murdered, as well as the wider Sikh community."

Arkansas County's Nativity Scene Violates Purpose Prong of Lemon Test

In American Humanist Association v. Baxter County, Arkansas, (WD AR, Nov. 12, 2015), an Arkansas federal district court held that a privately-owned nativity scene that has been erected on the Baxter County Courthouse lawn for the past 40 years violates the Establishment Clause, despite changes made in recent years to attempt to avoid this conclusion.  The display has long been accompanied by a Christmas tree, and in recent years by Santa Claus and reindeer figures. In 2014, the county leased the land on which the display sits for $1 to the Chamber of Commerce for the specific purpose of erecting a nativity display. It also added a sign with a disclaimer saying that the county is saluting liberty, and the display is owned and erected by private citizens.  The court held that whatever the relevance of these details under the Lemon test on whether the display has the effect of promoting religion, these details are irrelevant when the purpose of the display is predominately religious. The court said in part:

The record leaves no room for doubt that, as the owner of the creche stated during his deposition, "[o]bviously the purpose of it was to celebrate Christmas." ... [Also] there is no dispute that in December 2013, Judge Pendergrass [the County CEO] denied at least two separate requests to install a banner near the creche stating "Happy Solstice."

The court in its judgment entered a declaratory judgment and injunction, and awarded $1 in nominal damages, against the county and its CEO in his official capacity. It held that the county CEO in his personal capacity had qualified immunity from a damage claim.  The court's injunction provides that  defendants must either

(1) refrain from placing any religiously sectarian seasonal display on the courthouse grounds, or (2) create a public forum on the courthouse grounds for a seasonal display open to persons of all faiths as well as of no faith at all, without discrimination on the basis of viewpoint.

Ozarks First reports on the decision.