New Video On Being Muslim In U.S.

The Pew Research Center on Religion & Public Life yesterday released an 18-minute video on Being Muslim in the U.S. The video is based on the Center's 2017 survey of U.S. Muslims as well as on personal stories from Muslims across the U.S.

Defendant In Dead Sea Scrolls Debate Avoids Jail

Yeshiva World reports that a long running prosecution of a literature scholar (who is also now a disbarred lawyer) has ended without a jail sentence for the defendant who was charged with online impersonation growing out of an academic dispute over authorship of the Dead Sea Scrolls:

Raphael Golb’s conviction wasn’t quite like any other: using online aliases to discredit his father’s adversary in a scholarly debate over the Dead Sea Scrolls.

The 9-year-old case got a New York law thrown out and finally ended Monday with no jail time for Golb, who persuaded a judge to sentence him to three years’ probation rather than two months in jail.

Appeals had put the jail term on hold and narrowed the counts in his criminal impersonation and forgery conviction in a curious case of ancient religious texts, digital misdeeds, academic rivalries and filial loyalty.

"Obviously, I’m relieved not to be going to jail,” Golb said, adding that he remains concerned by having been prosecuted for online activity he said was meant as satire."

American Pastor Gets Initial Hearing In Turkish Court

According to Al-Monitor, in Turkey a North Carolina pastor finally was able to appear in court after being held in detention for 18 months. Pastor Andrew Craig Brunson, who led a small Protestant congregation in the Turkish city of Izmir, rejected the terrorism and espionage charges against him.  Brunson was among the many arrested after the failed 2016 coup which Turkish officials blame on Fethullah Gulen, who is living in Pennsylvania.  Many believe that the Turkish government wants to exchange Brunson for Gulen.  The court adjourned Brunson's trial until May 7, and ruled that he will continue to be held in solitary confinement. The U.S. Commission on International Religious Freedom issued a statement saying in part:

We are deeply disappointed that Turkish officials today decided to prolong their prosecution and unjust imprisonment of Pastor Andrew Brunson.

Israeli Court Rules "Am Yisrael Chai" Is Patriotic Slogan, Not A Prayer

In Israel, a Jerusalem Magistrate's Court yesterday ruled in favor of right-wing activist Itamar Ben Gvir in his suit for wrongful detention.  The suit grows out of a 2015 incident in which police held him for several hours because of his conduct at the Temple Mount where religious practices are controlled by the Muslim Waqf. As reported by Times of Israel, under current arrangements, Jews are allowed to visit the Temple Mount, but they may not pray there.  While Ben Gvir was touring the site with a Jewish group, a Muslim woman shouted Allahu Akbar at them.  He shouted back"Am Yisrael chai" (the Jewish People Live), at which point Israeli police detained him for violating the no-prayer rule.  The court ruled that the phrase used by Ben Gvir is a patriotic slogan, not a prayer.

No Spousal Privilege When Only Religious Marriage Was Entered

In Springfield, Massachusetts, a state trial court judge has ruled that the ex-wife of Ayyub Abdul-Alim may testify against him in his trial on firearms charges.  As reported by MassLive, the judge held inapplicable here the normal rule that bars a witness from testifying to private conversations with her spouse that occurred during their marriage. The parties were married in an Islamic religious ceremony, but never obtained a state-issued marriage certificate.  The court said:

While the court acknowledges that a marriage between the defendant and Ms. Stewart took place in the religious sense, there is no evidence that this marriage was sanctioned by the state through the fulfillment of the legal requirements.

6th Circuit: Church Restaurant Volunteers Are Not Covered By FLSA

In Acosta v. Cathedral Buffet, Inc., (6th Cir., April 16, 2018), the U.S. 6th Circuit Court of Appeals held that church volunteers who work at a for-profit restaurant operated by the church on its campus are not subject to the Fair Labor Standards Act.  The volunteers supplement paid staff.  The court held that because the volunteers do not expect to receive compensation and are not economically dependent on the restaurant, they are not "employees" for purposes of the FLSA.

The more difficult question faced by the court was the concern expressed in Supreme Court cases that employers might coerce employees to make assertions that they did not expect compensation.  In this case, it was argued, the church's pastor engaged in coercion of church members to volunteer:

Reverend Angley recruited volunteers from the church pulpit on Sundays....  [B]efore his sermon, Angley would announce to the congregation that more volunteers were needed. Angley said the restaurant was “the Lord’s buffet,” and “[e]very time you say no, you are closing the door on God.” ...Ushers would pass around slips of paper, and parishioners interested in volunteering would write down their phone number and hand it in.

Judge Siler's opinion for the court rejected this argument, saying that "spiritual coercion cannot stand in for the economic coercion" that concerned the Supreme Court in prior precedent.

Judge Kethledge filed a concurring opinion exploring the "coercion" argument at greater length, saying in part:

The Department seeks to regulate spiritual conduct qua spiritual conduct, and to impose significant liability as a result. ... [T]he Department’s position here is that otherwise legal conduct—such as volunteering at a church restaurant—becomes illegal if the worker’s pastor spiritually pressures her to engage in it.... 

Nor is the Department even competent to make the spiritual judgment it purported to make here. “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”... That same idea of centrality perforce lies beneath any judgment about spiritual coercion. And bureaucrats are no better than judges at making that judgment. Hence it is beyond the ken of federal agencies, or the courts, to determine that congregants were spiritually coerced even though the congregants themselves say they were not.... 

What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.

Cleveland.com reports on the decision.

European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Says Bektashi Community Should Have Been Recognized

In Bektashi Community v. The former Yugoslav Republic of Macedonia, (ECHR, April 12, 2018), the European Court of Human Rights, in a Chamber Judgment, held that the Bektashi Community had wrongfully been denied registration as an officially recognized religious organization under Macedonia's 2007 Legal Status of Churches, Religious Communities and Religious Groups Act.  The Court held in part:

[T]he ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued....

After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name "Bektashi Religious Community of the Republic of Macedonia"....

The Court also rejected a name-confusion argument, finding that the name is "sufficiently specific to distinguish it from the 'Ehlibeyt Bektashi Religious Group of Macedonia'".  The Court went on:

The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered "Islamic Religious Community". That conclusion was made on the basis of an assessment by the domestic courts of the applicant association's fundamental precepts and their comparison with the precepts of the "Islamic Religious Community" .... In the Court's view, such an assessment and interpretation of the applicant association's basic tenets of creed was incompatible with the State's role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed....

 Law & Religion UK has more on the decision.

USCIRF Issues New Report On Religious Freedom Challenges In Burma

The U.S. Commission on International Religious Freedom has recently issued an update on religious freedom challenges in Burma. (Full text of report).  The report, which particularly focuses on the conditions faced by Rohingya Muslims in Rakhine State, also more broadly summarizes the situation in the country:

Successive governments in Burma have failed to ensure that all religious communities are able to practice their faith freely, openly, and without fear, and in some cases have directly perpetrated, tolerated, or ignored religious- and ethnic-based discrimination and abuses. Religious and ethnic minorities are disadvantaged by:

• Institutionalized discrimination;

• Increasing anti-Muslim sentiment and the related rise of Buddhist nationalism, which has affected all religious minorities;

• A culture of impunity and lack of accountability for human rights abuses and crimes committed by military and nonstate actors; and

• Decades of ethnic armed conflicts and internal displacement.

The deprivation of Rohingya Muslims’ rights became even more acute following 2012 communal violence in Rakhine State...

Recent Articles of Interest

From SSRN:

• R. Michael Cassidy, Catholic Social Thought and Criminal Justice Reform, (Journal of Catholic Social Thought, Forthcoming).
• Giancarlo Anello & Mohamed A. Arafa, The Meaning of ‘Religion’ in the Legal Context: Some Remarks on the Pragmatics of Islam in Egyptian Law in Multicultural Societies Law, (39 Rivista Telematica [Milan Univ. L. J. “Italy”] (Fall 2017)).
• Trudo Lemmens, Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice, (85 Supreme Court Law Review (2nd Series) (Forthcoming)).
• Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, (NOMOS LXI: Political Legitimacy(2018)).
• Amos N. Guiora, Inciting Terrorism on the Internet: The Limits of Tolerating Intolerance, (Incitement to Terrorism (A. Bayefsky & L. Blank, eds, Brill 2018)).
• Sabir Ali, Usman Umer & Muhammad Waqas Butt, Role of English Press in Dissemination of Liberal Values for Women Empowerment in Pakistan: Honor Killing of Qandeel Baloch, (May 30, 2016).
• Mohammed Hussain, Vanja Hamzić: Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge, (VRUE Journal, Spring 2018, Forthcoming).
• Linda Sugin, Competitive Philanthropy: Charitable Naming Rights, Inequality, and Social Norms, (79 Ohio St. L. J. _ (2018)).

From SmartCILP:

• Gregory Brazeal, Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith, 120 West Virginia Law Review 363-426 (2017).

Tax Objector's Strategy To Prevent Garnishment Does Not Constitute Tax Evasion

The Oregonian last week reported on a partial court victory by Christian tax objector Michael Bowman who for the last nearly 20 years has refused to file income tax returns unless some accommodation is made so none of his tax monies support abortion.  When in 2012 Oregon tax authorities began to garnish Bowman's bank account, he moved to keep only a small balance in his checking account by cashing his pay checks rather than depositing them.  This led federal authorities last year to charge him with felony counts of tax evasion.  However, last week an Oregon federal district court held that merely cashing pay checks, when his income was fully reported to the IRS, could not constitute tax evasion.  However Bowman still faces four federal misdemeanor counts of willful failure to file tax returns.

Recent Prisoner Free Exercise Cases

In Buckley v. Cook, 2018 U.S. Dist. LEXIS 59987 (SD IL, April 9, 2018), an Illinois federal district court dismissed without prejudice an inmate's complaint that the Alton County Jail did not offer formal religious services on Sundays. The court allowed him to proceed on certain unrelated claims.

In Little v. Guice, 2018 U.S. Dist. LEXIS 59995 (WD NC, April 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was sanctioned for writing his cousin about the Moorish American faith.

In Chila v. Camden County Correctional Facility, 2018 U.S. Dist. LEXIS 60547 ( NJ, April 9, 2018), a New Jersey federal district court dismissed a female Muslim inmate's complaint that her hijab was taken from her, she was denied access to a Quran, and she could not leave her cell for religious worship.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 61560 (MD PA, April 10, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his religious beads were confiscated and his commissary privileges were restricted during Ramadan.

In Robertson v. Call, 2018 Kan. App. Unpub. LEXIS 274 (KA App., April 13, 2018), a Kansas Court of Appeals agreed that a prison had not violated the Establishment Clause by limiting a Messianic Jewish inmate's visits with his rabbi to interaction through video conferencing rather than allowing face-to-face visits. It also agreed that a visit by a Christian ministries group had not violated the Establishment Clause.

In Michigan, Battle Over Appropriations For State Mandates On Private Schools, Continues

Detroit News yesterday reported on developments in Michigan in the battle over legislative appropriations to fund state mandates imposed on private and religious schools-- requirements such as fire drills and criminal background checks.  Last year, the state Court of Claims issued a preliminary injunction barring payment of the $2.5 million that the legislature had appropriated.  The Court's decision was based on Michigan's Blaine Amendment (inserted in the state constitution in 1970) that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior posting.)  On March 12, Immaculate Heart of Mary Catholic school in Grand Rapids, along with parents and state legislators, filed a counter-suit in the Court of Claims contending that the Blaine Amendment violates the free exercise, free speech and equal protection clauses of the federal constitution.  According to the Detroit News:

The Grand Rapids school’s lawsuit argues the state’s so-called Blaine Amendment was developed in a furor of “anti-Catholic sentiment” and should be disregarded in the debate over the $2.5 million state allocation for non-public schools.

The enjoined funding has been included by the legislature, over the opposition of Gov. Rick Snyder, in the proposed 2019 budget.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Judge's Suit Challenging His Removal From Death Penalty Cases Moves Ahead

In Griffen v. Arkansas Supreme Court, (ED AR, April 12, 2018), an Arkansas federal district court held that sovereign and judicial immunity do not bar a suit for declaratory relief brought by a state court judge against justices of the Arkansas Supreme Court after they barred him from hearing death penalty cases.  Plaintiff, who is also a pastor, was active in demonstrations and vigils opposing the death penalty.  He contends that the action taken against him amounts to retaliation based on his speech and religion in violation of the 1st Amendment and the Arkansas Religious Freedom Restoration Act. The court held that he had stated a plausible claim for relief.  AP reports on the decision.

UPDATE: On April 24, defendants filed a writ of mandamus with the 8th Circuit challenging the district court's refusal to dismiss the lawsuit. (Arkansas Online).

Dolphins Cheerleader Claims Religious Discrimination In Limits On Her Social Media Posts

According to USA Today, former Miami Dolphins cheerleader Kristan Ann Ware this week filed a complaint with the Florida Commission on Human Relations against the Dolphins and the National Football League alleging religious and gender discrimination.  She says that in her annual work review, she was told not to discuss on social media her religious decision to abstain from sex before marriage.  She had posted a photo of her baptism online.  She contends that the players are not held to the same standards regarding discussion of religion on social media.

Magazine Says Muslims Are Thriving In America

National Geographic has posted a lengthy article titled How Muslims, Often Misunderstood, Are Thriving in America.  Here is an excerpt:

Today an estimated 3.45 million Muslims in America are living in a climate of hostility, their faith distorted by violent extremists on one end and an anti-Muslim movement on the other. The rise in animosity was stoked by fiery anti-Muslim rhetoric from conservative commentators and politicians, including the president. Trump repeatedly has described Islam as a threat, retweeting anti-Muslim videos from a British hate group and keeping his distance from the religion, like when he decided the White House, for the first time in more than two decades, would not host a dinner to mark Ramadan....

And yet Muslim communities in America are thriving. Modest clothes for women who cover their hair are being created by Muslims in the U.S. under labels like Haute Hijab and Austere Attire, and Macy’s is now selling fashion for Muslim women. Halal products, the Muslim equivalent of kosher, are available at Costco and Whole Foods. Mattel has even debuted a Muslim Barbie. The doll, complete with a head scarf, is modeled on Olympic fencer Ibtihaj Muhammad. There’s a Muslim liberal arts college in Berkeley, California, and a graduate school in Claremont, California. Community activism is thriving, and Muslim activists are forging alliances with other marginalized communities.

Trump Issues Proclamation On Holocaust Remembrance

Today is Yom Hashoah (Holocaust  Remembrance Day).  Yesterday President Trump issued a Proclamation (full text) asking the people of the United States:

to observe the Days of Remembrance of Victims of the Holocaust, April 12 through April 19, 2018, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

New Report On Worldwide Antisemitic Incidents

Yesterday Tel Aviv University's Kantor Center for the Study of Contemporary European Jewry released its 103-page report titled Antisemitism Worldwide General Analysis 2017 .  The Center highlights this excerpt:

In 2017, there was a moderate worldwide average decrease in antisemitic violent incidents that were directed at Jewish people, their communities and their private property, of about 9% (327 cases compared to 361 in 2016, according to the Kantor Center criteria). It does not include yet the numbers of violent incidents in France, which the Jewish security body is still elaborating. During the years 2006 to 2014, the violent cases worldwide numbered between 600 to 700 per year, while during recent years they decreased 300 to 400. But it should be emphasized that some of the recent violent cases have been perpetrated more brutally, causing more harm. And most important – this decrease is overshadowed by what is seen by the Jewish communities as a dramatic increase in all other forms of antisemitic manifestations, many of which are not even reported, most notably harassment in schools (some Jewish pupils moved to Catholic schools) and on social media.

AP reports on the data.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has announced its 9th Annual Religious Liberty Writing Competition for law students and graduate students in related areas.  The deadline for submissions is July 1, 2018.