Saudi Court Reduces Sentence From Death To 8 Years and 800 Lashes In Apostasy Case

CNN reported yesterday that a court in Saudi Arabia has upheld the guilty verdict on a charge of apostasy that was handed down against Palestinian poet Ashraf Fayadh. However the court overturned the death sentence against him and instead sentenced him to eight years in prison and 800 lashes to be administered over 16 sessions.  As previously reported, originally Fayadh was sentenced to 800 lashes and four years in prison on charges that his 2008 Arabic poetry book “Instructions Within” was insulting to God and religion. Also on the basis of photos in his phone, he was charged with illicit relations with women. However apostasy charges against him were dismissed because the judge found he had repented.  Prosecutors appealed, seeking a harsher sentence, and the appeals court remanded for a new trial.  At that trial in November, a different judge concluded that Fayadh's repentance was not sufficient, and he was sentenced to death.

City Adopts Moment of Silent Prayer To Stop Scheduled Satanic Invocation

After hours of discussion, the Phoenix, Arizona City Council last night voted 5-4 to begin council meetings with a moment of silent prayer, replacing the 65-year old tradition of opening meetings with an invocation.  As reported by Tucson News Now, the change came in reaction to the invocation scheduled for the February 17 council meeting that was to be delivered by a member of the Satanic Temple. Originally some Council members had proposed to merely change the way in which persons were chosen to deliver invocations as a way to prevent the Satanic invocation, but at yesterday's meeting the city's attorney said that kind of retroactive change would likely pose constitutional problems. Meanwhile,  Councilman Jim Waring who wants to continue having invocations says he will seek a referendum on the issue

President Obama Speaks At Baltimore Mosque

Yesterday President Obama made his first visit to a mosque in the United States and gave a wide-ranging 45-minute address (full text) emphasizing both the contributions and concerns of the Muslim community in the United States.  Speaking at the Islamic Society of Baltimore, he focused on the American tradition of religious liberty, dealt directly with the challenges posed to American society by groups such as al Quaeda and ISIL, and called on the American Muslim community "to show that it is possible to be faithful to Islam and to be part of a pluralistic society."  Near the end of his remarks, the President addressed himself explicitly to Muslim youth in the United States:

 In our lives, we all have many identities.  We are sons and daughters, and brothers and sisters.  We’re classmates; Cub Scout troop members.  We’re followers of our faith.  We’re citizens of our country.  And today, there are voices in this world, particularly over the Internet, who are constantly claiming that you have to choose between your identities -- as a Muslim, for example, or an American.  Do not believe them.  If you’re ever wondering whether you fit in here, let me say it as clearly as I can, as President of the United States:  You fit in here -- right here.  (Applause.)  You’re right where you belong.  You’re part of America, too.  (Applause.)  You’re not Muslim or American.  You’re Muslim and American. (Applause.) 

Don’t grow cynical.  Don’t respond to ignorance by embracing a world view that suggests you must choose between your faith and your patriotism.  Don’t believe that you have to choose between your best impulses and somehow embrace a world view that pits us against each other -- or, even worse, glorifies violence.  Understand your power to bring about change.  Stay engaged in your community.  Help move our country forward -- your country forward.  (Applause.) 

Several hours ahead of the President's appearance in Baltimore, White House advisor Rumana Ahmed released an e-mail emphasizing the importance to her of the President's visit to the mosque.

Suit Seeks To Oust Pastor Claiming Fraud As To Credentials

The Record reports today on a suit filed last December by 13 members of the Canaan Korean Community Church in Hackensack, New Jersey against their pastor, Sungnam Choi, and against the church.  The suit seeks to have Choi's contract rescinded and asks the court to bar him from serving as pastor.  Alleging fraud, breach of contract, emotional distress and negligence, the members claim that Choi lied about being a credentialed minister when the church hired him.  Just days before he was hired by the church, Choi surrendered his credentials to the United Methodist Church which had accused him of mishandling grant funds that were supposed to go to the Church.  Choi agreed to pay $37,000 in restitution to the United Methodist Church in exchange for their agreeing not to pursue further legal action against him. When some congregants confronted Choi, he apparently retaliated against them by spreading rumors about them and threatening to have them arrested for trespassing if they tried to attend religious services.  Among those the pastor has barred from worship is Chang Duk Cho, a 30-year member who lent the church $2 million to purchase a new church building. Church leadership however continues to support Choi and are preventing his removal.

Housing Commission May Not Limit Meeting Rooms To Secular Activities

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 1, 2016), a Michigan federal district court issued a preliminary injunction barring a public housing agency from denying a Christian church access to its community rooms for Sunday meetings that include worship and Biblically based lessons on morality and life skills. In the court's view, in denying use of meeting rooms in the public housing developments for religious activities, the housing commission engaged in unconstitutional viewpoint discrimination. Alliance Defending Freedom issued a press release on the decision which includes links to the complaint and other documents in the case.

Britain's 2014 Sovereign Sukuk Issuance Creates Unexpected Problem For House of Commons

In 2014, Britain in a bid to become the Western hub for Islamic finance, sold £200,000,000 in Sharia-compliant bonds-- otherwise known as sovereign Sukuk. (2014 press release) (Offering Circular).  Under the Sukuk arrangement, investors do not lend money in exchange for interest; instead they share in "rent" payments made by the government on government property which is first leased to the investors and then sub-leased back from them. One of the conditions of the arrangement is that the government property that underlies the Sukuk arrangement cannot be used in ways that violate Sharia law. This means, among other things, that no alcohol can be sold on the premises of the building.

It was reported by the Deccan Herald last week that this condition is now creating a problem for Parliament.  The 182-year old Palace of Westminster in London where the House of Commons now meets is in need of extensive repairs that it is estimated will take six years to complete. A Parliamentary committee is seeking a place for Commons to meet while the repairs are under way.  The Committee has identified Richmond House in the Whitehall district as a good fit.  The building currently houses UK's Department of Health. It is also one of the buildings that has been leased to support the 2014 Sukuk issuance. The Palace of Westminster currently has eight bars in it.  Members of Parliament will have to give up that convenience while in their temporary home.

Court Says Priest-Penitent Privilege From Reporting Child Abuse May Be Unconstitutional

Delaware Code, Title 16, Chap. 9 requires reporting of suspected child abuse or neglect to authorities. Under Sec. 909, the only privileges that excuse reporting are the attorney-client privilege and the privilege "between priest and penitent in a sacramental confession."  State of Delaware v. Laurel Delaware Congregation of Jehovah's Witnesses, (DE Super., Jan. 26, 2016), is an enforcement action against elders of a Jehovah's Witness congregation who did not report a sexual relationship between a 14-year old boy and an adult female member of the congregation.  Defendants' motion to dismiss raised the question of whether this priest-penitent privilege applies to these elders. The court held that if the privilege language is read narrowly, it is unconstitutional because it creates an exception only for certain religious denominations.  Even if read more broadly to cover similar kinds of conversations with clergy, here the conversations with elders were for the purpose of seeking spiritual advice and counsel, and were likely not for the purpose of penitence. Reveal reports on the decision.

Survey On Religion and Sports Shows 73% Favor Coaches Leading Players In Christian Prayer

The Public Religion Research Institute last week released its fourth annual survey of sports and religion.  The survey (full data) concluded that 48% of those surveyed think that playing fantasy online sports is gambling, while 63% think that gambling is morally acceptable.  Another question asked whether or not respondents agree that football coaches at public high schools should be allowed to lead their players in Christian prayer during games.  44% said they completely agree that this should be allowed, while 29% said they mostly agree; 14% completely disagree and 10% mostly disagree.

D.C. Circuit Revives Holocaust Survivors' Expropriation Claims Against Hungary

In Simon v. Republic of Hungary, (DC Cir., Jan. 29, 2015), the C.C. Circuit Court of Appeals allowed 14 Holocaust survivors to move ahead with claims against Hungary and the Hungarian state-owned railroad for property taken by the Nazis during World War II. The court summarized its decision as follows:

The wartime wrongs inflicted upon Hungarian Jews by the Hungarian government are unspeakable and undeniable. The issue raised by this appeal is whether those wrongs are actionable in United States courts.... The district court dismissed the suit, holding that the Foreign Sovereign Immunities Act’s treaty exception grants the Hungarian defendants immunity. The court concluded that the 1947 Peace Treaty between the Allied Powers and Hungary set forth an exclusive mechanism for Hungarian Holocaust victims to obtain recovery....

We hold that the peace treaty poses no bar to the plaintiffs’ lawsuit. While the treaty secures an obligation by Hungary to provide compensation for property interests confiscated from Hungarian Jews during the War, that obligation is not exclusive of other, extra-treaty means of recovery.... As a result, the FSIA’s treaty exception does not preclude this action.

Plaintiffs, however, still must overcome the FSIA’s default grant of immunity to foreign sovereigns. We hold that the FSIA’s expropriation exception affords plaintiffs a pathway to pursue certain of their claims: those involving the taking of the plaintiffs’ property in the commission of genocide against Hungarian Jews.... We further hold that the plaintiffs’ claims do not constitute nonjusticiable political questions.... We leave for the district court to consider on remand whether, as a matter of international comity, the plaintiffs must first exhaust available remedies in Hungary before proceeding with their claims in United States courts.

Law.com reports on the decision.

Recent Articles of Interest

From SSRN:

• Imen Gallala-Arndt, The Impact of Religion in Interreligious Custody Disputes: Middle Eastern and Southeast Asian Approaches, (American Journal of Comparative Law, Vol. 63, No. 4, pp. 829-858, 2015).
• Barbara P. Billauer, The First Amendment, Moral Law and Abortion: The Conflict between Fetal Rights & Freedom of Religion, (January 22, 2016).
• Ross Campbell, Hobby Lobby as a Land Use Case: Charting For-Profit RLUIPA Claims, (NYU Journal of Law & Liberty, Vol. 10, No. 2, 2016).
• William P. Kratzke, The Biblical Fool and the Brander: The Law and Economics of Propertization in American Trademark Law, (Cardozo Arts & Entertainment Law Journal, 2016).
• Blair A. Major, Religion and Law in R v. NS: Finding Space to Re-Think the Balancing Analysis, (Windsor Yearbook of Access to Justice, Vol. 32, No. 1, 2015).
• Anita Bernstein, Common Law Fundamentals of the Right to Abortion, (Buffalo Law Review Vol. 63, No. 1141 (2015)).
• Eric Heinze, Towards a Legal Concept of Hatred: Democracy, Ontology, and the Limits of Deconstruction, (Hate, Politics and Law (T. Brudholm & B. Johanssen, eds., Oxford University Press, 2016, Forthcoming)).
• Stuart Roth, The Politics of Turkey During the Holocaust, (1 J. Oxford Ctr. For Study of L. & Pub. Pol'y 87 (2015)).
• John George Archer, This SOX: Combating Public Charity Fraud with Sarbanes-Oxley, (January 20, 2016). 

From SSRN (Islamic Law):

• Mohamed A. Arafa & Jonathan G. Burns, Judicial Corporal Punishment in the United States? Lessons from Islamic Criminal Law for Curing the Ills of Mass Incarceration, (25 Indiana International & Comparative Law Review 3, 2015).
• Nadjma Yassari, Adding by Choice: Adoption and Functional Equivalents in Islamic and Middle Eastern Law, (American Journal of Comparative Law, Vol. 63, No. 4, pp. 927-962, 2015).
• Lena-Maria Möller, An Enduring Relic: Family Law Reform and the Inflexibility of Wilāya, (American Journal of Comparative Law, Vol. 63, No. 4, pp. 893-925, 2015).
• Nadjma Yassari, Lena-Maria Möller & Imen Gallala-Arndt, Introduction – Negotiating Parenthood in Muslim Countries: Changing Concepts and Perceptions, (American Journal of Comparative Law (AJCL), Vol. 63, No. 4, pp. 819-827, 2015).
• Yusuf Roque Santos Morales, Maslaha as a Guide and Basis for Governance of Society, ("3rd Bitiala sa Maguindanao" Series (conversations in Maguindanao) January 11, 2016).
• Muhammad Hasbi Zaenal & Abdul Ghafar Ismail, Slavery - A Mere 'Commodity' or a Human Dignity: Classical View and Solution, (January 13, 2016).
• Zahid Siddique, Liberal Development Strategies: An Islamic Perspective, (January 27, 2016).

Suit Over Chabad House In Historic District Survives Almost All Motions To Dismiss

Chabad Lubavitch of Litchfield County, Inc. v. Borough of Litchfield, Connecticut, (D CT, Jan. 27, 2016), a decision on remand from the 2nd Circuit, is the latest installment in the long-running attempt of the Hasidic Jewish organization, Chabad, to expand a building it purchased in Lichtfield, Connecticut's Historic District.  In a 61-page opinion in the suit filed under RLUIPA,  the court first examined whether all parts of the proposed expansion of the building into a Chabad House would be used for religious purposes. It concluded:

Construction of the proposed facilities is in large measure religious exercise and, as to the remaining use / facilities, there exist genuine issues of material fact regarding their status as places of religious exercise.

The court then moved to consider whether the Historic District Commission's denial of a Certificate of Appropriateness placed a substantial burden on Chabad’s religious exercise. It concluded that there are genuine issues of material fact as to whether or not it did, so that defendants' motion for summary judgment on this point was denied. The court also refused to dismiss plaintiffs' discrimination claim under RLUIPA, holding that there is sufficient evidence in the record for the fact finder to conclude that the Commission acted with an intent to discriminate on the basis of religion. The court went on to reject various defenses. Finally the court granted defendants' motion to dismiss the Chabad Rabbi as a plaintiff in the discrimination claim, but not as to the substantial burden claim.

Recent Prisoner Free Exercise Cases

In Mauwee v. Olivas, (9th Cir., Jan. 27, 2016), the 9th Circuit affirmed the dismissal of a complaint by a Native American inmate that for five months he was deprived of deer antlers used for sweat lodge ceremonies.

In Terry v. Babcock, 2016 U.S. Dist. LEXIS 6073 (CD CA, Jan. 19, 2016), a California federal district court dismissed with leave to amend a Jehovah's Witness inmate's complaint that he was forced to attend an educational class that violated his beliefs. Plaintiff had asserted that his religious beliefs preclude him from being "a part of any educational class/program which does not include worship, and the timeless teachings of the Creator."

In San Antonio v. Shipman, 2016 U.S. Dist. LEXIS 8209 (ND FL, Jan. 25, 2016), a Florida federal district court adopted a magistrate's recommendations (2015 U.S. Dist. LEXIS 175229, Dec. 18, 2015) and dismissed as moot an inmate's RLUIPA complaint over his removal from the faith-based dormitory. The court dismissed, with leave to amend, plaintiff's 1st Amendment claim.

In Tatum v. Meisner, 2016 U.S. Dist. LEXIS 8642 (WD WI, Jan. 26, 2016), a Wisconsin federal district court allowed an inmate to move ahead with this claim under RLUIPA that authorities had denied his request for a diet that complies with Nation of Islam rules.

In Moseley v. Spencer, 2016 U.S. Dist. LEXIS 10232 (D MA, Jan. 27, 2016), a Massachusetts federal district court ordered an inmate to file an amended complaint or else face dismissal of his complaint that he was forced to choose between his religious (kosher) diet and his medical diet involving an evening snack for diabetes. He also complained that he has not been provided proper food and other items to celebrate Passover.

Texas Supreme Court: Cheerleaders' Battle With School District Not Moot

In Matthews v. Kountze Independent School District, (TX Sup. Ct., Jan. 29. 2016), the Texas Supreme Court, without hearing or oral argument, held that a dispute between football cheerleaders and a local school system over run-through banners carrying religious messages is not moot.  Originally the school banned the religious verses, but after a trial court issued a temporary injunction allowing the cheerleaders to continue using the banners, the school reversed its ban and the court of appeals agreed with the school that this eliminated any live controversy. (See prior posting.) The Supreme Court reversed, saying in part:

the District’s voluntary abandonment here provides no assurance that the District will not prohibit the cheerleaders from displaying banners with religious signs or messages at school-sponsored events in the future.

Justice Willett filed a concurring opinion, invoking analogies from the movie The Lion King. Justice Guzman filed a concurring opinion emphasizing that school officials need guidance on the extent to which limits on religious speech are permissible. AP reports on the decision. [Thanks to Steven Jamar via Religionlaw for the lead.]

Tennessee Appeals Court Invokes Ecclesiastical Abstention In Church Property Dispute

In Church of God In Christ, Inc. v. L.M. Haley Ministries, Inc., (TN App, Jan. 27, 2016), a Tennessee state appeals court in a 2-1 decision held that the ecclesiastical abstention doctrine prevents civil courts from adjudicating a dispute between a local congregation and its parent body over ownership of assets-- including real property and a bank account with a balance of over $150,000.  Sometime after Gospel Center Temple's founding pastor died, the Jurisdictional Bishop for the Tennessee area of the Church of God In Christ ("COGIC"), David Hall, invoked a provision in COGIC's Official Manual that vacancies in the pastorate of local churches would be filled by the Jurisdictional Bishop until a new pastor was appointed. When Hall attempted to actively manage the local church and transfer its bank account into his name, some members of the local church threatened him and prevented him from getting access to the church's liquid assets. The local members also formed a new corporation to take title to the church's real estate, and voted to remove themselves from Bishop Hall's jurisdiction. However they remained member of COGIC. This led to a suit by COGIC. The majority rejected jurisdiction, saying that it could not adjudicate the real property dispute as long as the congregation had not withdrawn from the parent body.  And as to the dispute over the church's bank account, the majority said in part:

Bishop Hall's alleged authority regarding Gospel Center Church's personal property, including its bank accounts, derives from Bishop Hall's alleged place as the lawful leader of the church. This Court, however, has no subject matter jurisdiction to declare that Bishop Hall is the lawful leader of Gospel Center Church....

Judge Goldin filed a dissenting opinion.

Suit Seeks To Bring Marijuana Under American Indian Religious Freedom Act

Courthouse News Service reported this week that Oklevueha Native American Church leaders James "Flaming Eagle" Mooney and Joy Graves filed suit in an Oregon federal district court on January 15 against the federal government and the U.S. Postal Service.  The suit claims that federal authorities illegally seized 5 ounces of sacramental marijuana mailed to a church member in Ohio last December. Plaintiffs claim that their use of marijuana is protected by the American Indian Religious Freedom Act.  National leaders of the Native American Church do not recognize the Oklevueha branch, nor do they agree with its claims that marijuana (as opposed to peyote) has sacramental use.  In 2013, a Hawaii federal district court rejected a claim under RFRA by Mooney. (See prior posting.) That decision is on appeal.

Arkansas Board of Health Rejects Legislature's Description of Abortion

The Northwest Arkansas Democrat reports today that the Arkansas state Board of Health is setting up a confrontation with the state legislature.  The Board voted 12-6 (with 5 abstentions) to avoid using the phrase "death of the unborn child" in final regulations it is adopting, even though that language appears in statutes it is implementing.  The Board substituted the phrase "termination of the pregnancy" in the regulations that implement six abortion laws passed last year and parts of an older statute. The governor and the state Department of Health director expect the legislature to reject the new language in the rule review process that follows.

Atheists Can Move Ahead With Challenge To Florida County Ten Commandments Monument

In American Atheists, Inc. v. Levy County, Florida, (ND FL, Jan. 27, 2016), a Florida federal district court held that American Atheists and one of its members have standing to challenge on Establishment Clause grounds a Ten Commandments monument that was placed on the Levy County courthouse grounds. It also held that plaintiffs have standing to assert an Equal Protection challenge after their application to erect a monument of their own near the Ten Commandments monument was rejected.  The court concluded that plaintiffs complaint plausibly states both 1st and 14th amendment claims. Religion News Service reports on the case.

Court Refuses To Allow Amended Complaint On Building Code Application To Home Bible Study Groups

In Salman v. Phoenix, (D AZ, Jan. 27, 2016), an Arizona federal district court refused to permit an ordained minister who used his home for weekly Bible study meetings  and worship to file a third amended complaint seeking damages and injunctive relief against the city's application of its building code to his activities.

Suit Challenges High School History Unit On Islam

The parents of a high schooler filed suit in a Maryland federal district court this week alleging that a two-week unit on Islam in the La Plata High School 11th grade World History class unconstitutionally promoted Islam over Christianity and Judaism.  The complaint (full text) in Wood v. Charles County Public Schools, (D MD, filed 1/27/2016), contends that plaintiffs' daughter was removed from class and given failing grades on assignments when she refused to complete work sheets on Islam that would have caused her to deny and insult her Christian beliefs. The suit contends that this violated the 1st and 14th Amendments, federal civil rights laws and state constitutional provisions.  Thomas More Law Center issued a press release on the case.

Report Traces New Role of The Satanic Temple

San Jose, California's Metroactive carried an interesting article yesterday titled How Satan Became the New Face of Secularism.  It chronicles the emergence of the Satanic Temple as a player in the church-state debate:

Originally conceived as a "poison pill in the church-state debate," ... the temple has since evolved beyond reactive political ploys. "Our message and beliefs are deeply sincere," says Jex Blackmore, who leads the group's highest-profile chapter in Mesner's native Detroit. "To us, Satan is a figure that embodies the characteristics that inform our deeply held beliefs, rather than a stab at the superstitious."

Adherents ...  embrace an atheistic philosophy that views Satan not as a deity but a literary symbol. Satan, in this brand of "ism," stands for reason, autonomy and rejection of superstition and arbitrary authority.... 

In the spirit of Satan as eternal outcast, activism remains central to the group's mission. Where religion has already breached the church-state divide, the Satanic Temple elbows in to remind lawmakers that those privileges necessarily extend to other beliefs.