Schools Face Various Church-State Issues This Year

While much of the country is focused on issues relating to the teaching of evolution in public schools, a number of other church-state issues top the agendas of various public schools around the country. Here are three examples:

In Raleigh, North Carolina, an activist Christian group has complained that an elementary school unconstitutionally promotes "New Age" beliefs through its stress-reduction class. Elementary school students were asked to do breathing exercises, chant and use their "life forces". The Sacramento Bee reports on the dispute. The organization promoting the classes, Rites of Passage Youth Empowerment Foundation, says it is not involved in religion; it merely enhances students' learning practices.

In Anna, Illinois, a local pastor is collecting signatures to urge the city's junior high school to put back up a painting of The Last Supper and two portraits of Jesus that the school took down earlier this school year. The Southern yesterday reported that the pictures were removed after Americans United For Separation of Church and State threatened to sue. Now the Alliance Defense fund threatens to sue if the school does not return the pictures to its hallway.

And in Kirkland, Washington, Lake Washington High School has its plate full of church-state issues. The Stranger reports that Antioch Bible Church, a conservative anti-gay congregation, rents the school's gym every Sunday to use for religious services. The school district's sex education program is supplemented by an abstinence presentation from a group called SHARE—an affiliate of the religiously based group Life Choices. The SHARE lecture is taught by volunteers, some of whom are recruited from Antioch Bible Church. Then last June, students in the pre-school program that is affiliated with the high school all received a copy of "10 commandments" at their graduation-- not the traditional ones, but still ones that were religious. They instructed parents to "please take me to church regularly" and to realize their kids are "a special gift from God."

Bush Urged To Overrule FAA On Cemetery Seizure

Two dozen religious and civil rights groups yesterday wrote President Bush urging him to respect the Religious Freedom Restoration Act and prevent federal approval for an airport expansion plan at Chicago's O'Hare which would destroy St. Johannes, an active religious cemetery. The letter read in part:

FAA stands poised to grant final approval and federal funds to an airport plan that would dig up the graves at St. Johannes, despite the availability of feasible options that would address flight delays at O’Hare and save the cemetery. Most upsetting, the FAA is about to do this despite its concession that the desecration of St. Johannes would substantially burden the religious exercise of the Church and those who have family and friends buried in St. Johannes’ sacred ground. In other words, the FAA has admitted that its actions establish a prima facie violation of the Church’s rights under RFRA, but insists that reducing flight delays justifies this burden.

The Becket Fund which represents the cemetery and the church that operates it issued a release yesterday on the controversy. The Illinois legislature has already enacted the O'Hare Modernization Act, excluding the cemetery from state law that protects other cemeteries from seizure.

Japan Prime Minister Did Not Violate Constitution In Shrine Visit

Reuters yesterday reported that in Japan, a Tokyo appellate court has upheld the dismissal of a suit against Prime Minister Junichiro Koizumi challenging his visits to a war shrine. The plaintiffs had argued that the visits to the Shinto shrine violated Japan's constitutional separation of religion and the state. The court ruled, however, that his visits were private acts.

Groups Urge USCIRF To Designate Turkmenistan

A coalition of non-governmental organizations on Wednesday wrote Secretary of State Condoleezza Rice, asking her to designate Turkmenistan as a "country of particular concern" this year under the International Religious Freedom Act of 1998. The full text of the letter has been published by Human Rights Watch. The groups contend: "The state no longer simply controls religion; it is actively trying to eliminate even state-controlled religions in order to establish a new religion based on the personality of the president." Turkmenistan is already on the Watch List of the U.S. Commission on International Religious Freedom.

North Carolina Moves To Dismiss ACLU's Oath Case On Standing Grounds

In North Carolina, the ACLU has sued to challenge state court policies that only permit use the King James version of the Bible in administering oaths. The courts do not allow other holy texts, such as the Quran, to be used instead. (See prior posting). Today's Winston-Salem Journal reports on a motion to dismiss on standing grounds that has recently been filed by the state. The suit was filed on behalf of the ACLU's 8,000 members statewide, some of whom are Muslims and Jews who would prefer to use religious texts other than the Christian Bible for courtroom oaths. The state, however, has moved to dismiss the suit because no named plaintiff has in fact been denied the opportunity to take an oath on a non-Christian book.

Moving Demonstrators From Church Does Not Endorse Religion

A Kentucky federal district court has rejected an Establishment Clause challenge by animal rights protesters who were forced to move the location of their picketing. In Friedrich v. Southeast Christian Church of Jefferson County, 2005 U.S. Dist. LEXIS 21218 (WD Ky., Sept. 22, 2005), activists associated with People for the Ethical Treatment of Animals attempted to demonstrate in front of a Louisville, Kentucky church on Christmas eve. Executives of the parent company that owned Kentucky Fried Chicken belonged to the church; demonstrators wished to encourage KFC to treat chickens more humanely. Police required demonstrators to move across the street. The demonstrators sued the Louisville police and the church, alleging numerous causes of action. In dismissing their Establishment Clause claim, the court held that the city did not endorse religion merely by moving the demonstrators away from the church on Christmas eve. It also dismissed civil rights claims against the church, finding that it was not a state actor.

China Limits Religious Speech On the Internet

According to a Sept. 26 press release from Reporters Without Borders, Chinese authorities have published new rules limiting postings by bloggers and website managers. The new edict, issued by the State Council Information Bureau and the Ministry of Industry and Information, brings together in one place a number of prior edicts, and adds some new prohibitions as well. The Beijing News has reported that there are 11 topics that are off limits for Internet transmission. One of those topics is any message that violates national policies on religion, or that promotes the propaganda of sects and superstition. The latter references are presumably to the Falungong movement, thirty of whose members are already in Chinese jails for posting news on the Internet.

Law Favoring Churches Teaching Family Values Questioned

According to today's San Diego Tribune, the mayor of Chula Vista, California is uncomfortable with a 14-year old city ordinance that was designed to set aside affordable land for churches, social service centers, day care facilities and small parks in the city's new eastern neighborhoods. Developments of over 50 acres must set aside land for "community purpose facilities", defined in part as churches that teach "traditional family values". In the 1980's, when the ordinance was enacted, the city was battling, for example, with a sex club owner who claimed his facility was a church. At the mayor's request, the city attorney's office is looking at removing the language referring to traditional family values.

Another Challenge To A Cross On City Property

There seems to be a rash of cases lately raising Establishment Clause challenges to crosses on public property. (See prior postings 1, 2). Jacksonville, Florida's WAWS Fox30 reported yesterday on yet another such lawsuit. In Starke, Florida, a cross has been on top of the city's water tower for over 20 years. Now Lon Bevell, an atheist, along with American Atheists, Inc., is suing the city claiming that the cross is unconstitutional. He says that when he complained to the city about the cross, one official told him it was not a cross, but was the letter "T".

Lot Size Requirement Only For Churches Violates RLUIPA

In Victory Family Life Church v. Douglas County, (Sept. 20, 2005), a Georgia trial court found that the Religious Land Use and Institutionalized Persons Act was violated when the county insisted that churches must be built on lots of at least 3 acres in size. The county articulated no compelling interest for imposing this zoning requirement on religious institutions when it had no similar requirement for any other kind of institution. Alliance Defense Fund yesterday issued a release praising the decision.

Two Rastafarian Prisoner Cases Decided

In Williams v. Snyder (Sept. 26, 2005), the U.S. Seventh Circuit Court of Appeals held that the trial court had applied the wrong standard in dismissing as frivolous a Rastafarian prisoner's claim that requiring him to cut his dreadlocks in order to leave his cell violated his religious free exercise of rights. The trial court's balancing of interests is appropriate only in a motion for summary judgment after additional fact finding. It is not the standard to be used for screening on the pleadings alone.

In Clark v. Briley, 2005 U.S. Dist. LEXIS 21350 (ND Ill., Sept. 26, 2005), an Illinois federal district court held that forcing a Rastafarian prisoner to cut his dreadlocks was the least restrictive means of achieving prison safety and security. His hair could serve as a hiding place of weapons or drugs, a significant risk considering this prisoner's past history. Therefore the court rejected the prisoner's claims under the Religious Land Use and Institutionalized Persons Act and under the First Amendment and granted summary judgment to the defendants.

New Organization Will Counter Religious Right Online

Frederick Clarkson this week has an interesting posting on a new group formed to counter the religious right. Called DefCon, short for "Campaign to Defend the Constitution: Because the Religious Right is Wrong", the group is based in Washington, D.C. It will conduct an Internet campaign modeled on the successful strategy of MoveOn.org. DefCon's website says "We will fight for the separation of church and state, individual freedom, scientific progress, pluralism, and tolerance while respecting people of faith and their beliefs." Links to the webswite and the DefCon blog have been added to the sidebar list on Religion Clause.

Denominational Disputes Over Gay Clergy Are Moving To Civil Courts

Splits within Protestant denominations on the ordination of gay clergy are now finding their way into civil courts. In Ridgebury, New York, a small Presbyterian congregation is breaking away from the Presbyterian Church (USA) in protest of the denomination's willingness to ordain gays. The Church at Ridgebury however is trying to keep its church building and property in the process. The White Plains Journal News reported earlier this month that the church's regional body is now suing, claiming that under church rules (the Book of Order) all church property is held in trust for the denomination.

Similar disputes are racking the Episcopal Church. Last month (see prior posting), a breakaway Episcopal congregation in California was permitted to keep its church property as it broke away from the parent body in protest over its teachings on homosexuality. Now, according to an Associated Press report yesterday, a more far-ranging federal lawsuit has been filed in Connecticut. In it, six Episcopal parishes at the center of a dispute over gay clergy allege that their civil rights have been violated by Connecticut's bishop, the head of the U.S. Episcopal Church and others.

The priests of the six parishes that filed the lawsuit had asked to be supervised by a different bishop because they disagreed with their bishop's support for the ordination of the Episcopal Church's first openly gay bishop. Interestingly, the lawsuit also names Connecticut Attorney General Richard Blumenthal as a defendant. The suit claims that the state has entangled itself in the religious dispute because state law requires Episcopal parishes to operate under the rules of the Connecticut diocese. The full text of the 67-page complaint in the lawsuit is available online. It asks for an injunction to prevent the parent church from interfering with the dissident parishes, an ejectment order, a declaration that various state statutes relating to the Episcopal Church are unconstitutional, and damages.

School Says Musical Violates Spirit of Church-State Separation

In Old Washington, Ohio, the superintendent of schools has banned the Buckeye Trail High School drama club from presenting the play "Godspell". The superintendent claims that the play, which sets the Gospel of St. Matthew to modern music, violates the spirit of church-state separation. Today's Akron Beacon Journal reports that two teachers have resigned as advisors to the high school's Drama Club because this and another play involving violence were censored.

Prisoner Claims TB Testing Violates Religious Freedom

In Perry v. Levegood, 2005 U.S. Dist. LEXIS 20964 (ED Pa., Sept. 21, 2005), a prisoner alleged that his religious freedom rights were infringed when prison nurses forced him, without good reason, to take a tuberculosis immunization test. A Pennsylvania federal district court held that preventing the spread of TB is a legitimate penological interest, and that if the Department of Corrections' TB testing policy was reasonably related to that interest, it would survive a First Amendment challenge. However, the court allowed the plaintiff to move to additional discovery before determining whether the TB testing policy was applied correctly in this case. The court dismissed the prisoner's claim that the testing also violated the Universal Declaration of Human Rights.

Order On Children's Travel Does Not Violate Mother's 1st Amendment Rights

Earlier this month in Racsko v. Racsko, 91 Conn. App. 315 (Sept. 13, 2005), plaintiff appealed an order issued in connection with the dissolution of her marriage. The order required her to surrender her children's passports and gave her husband sole authority to make decisions about their children's international travel. Plaintiff claimed that the order violated her free exercise of religion because she wished to do missionary work in Israel and wanted her children to go with her. The Connecticut appellate court held that the orders do not limit plaintiff's exercise of religion; they merely impose restrictions on her ability to determine unilaterally the conditions under which her children can travel internationally

FEMA To Reimburse Churches For Hurricane Relief

For the first time, the Federal Emergency Management Agency will use taxpayer money to reimburse churches and other religious organizations involved in hurricane relief efforts. Today's Washington Post reports on the plans. FEMA officials said religious organizations would be eligible only if they operated emergency shelters, food distribution centers or medical facilities at the request of state or local governments in Louisiana, Mississippi and Alabama to help Hurricane Katrina or Rita victims. A FEMA spokesman said in an e-mail: "a wide range of costs would be available for reimbursement, including labor costs incurred in excess of normal operations, rent for the facility and delivery of essential needs like food and water." Groups like Americans United for Separation of Church and State have criticzed FEMA's plans, arguing that they violate principles of church-state separation.

Incisive Analysis Of Bible In American Public Life

Mark Noll's long essay, The Bible In American Public Life, 1860-2005, is definitely worth reading in full. Published in the Sept./Oct. issue of Christianity Today, the article traces the rhetorical, evocative and political use of the Bible in the U.S. Here are two excerpts:

Political use of Scripture is at once more dangerous and more effective than the rhetorical or evocative. It is more dangerous because it risks the sanctified polarization that has so often attended the identification of a particular political position with the specific will of God. It can also be dangerous for religion. In the telling words of Leon Wieseltier,"the surest way to steal the meaning, and therefore the power, from religion is to deliver it to politics, to enslave it to public life."...

To foreign Roman Catholics during the Civil War, to Quebec nationalists of the 19th century, to American Jews in the first generations of immigration, and to African Americans in the period before the exercise of full civil rights, the Bible was held to be a living book, and it was held to be relevant to the United States. But it was not relevant in the way that those at the center of American influence—be they Bible believers or Bible deniers—felt it was relevant.

Church and Politics In Mexico

Mexidata Info yesterday reported on the growing controversy in Mexico over the role of the Catholic Church in Mexican politics. Article 130 of the Mexican Constitution provides that clergy may not participate in partisan political activities except to vote for a chosen candidate. The church-state issue has been focused by Pope Benedict XVI's remarks recently about narcotics trafficking in Mexco, and remarks by a Mexican bishop suggesting that the Church is involved in laundering drug money.

What Is The Issue In O Centro?

On November 1, the case of Gonzales v. O Centro Espirito will be argued before the U.S. Supreme Court. There seems to be a basic disagreement among interested parties on what issue the Supreme Court will be deciding in the case. When the Court granted cert., it defined the issue as follows: "Whether the Religious Freedom Restoration Act ... requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty."

The government's brief defines the issue in this way. (See prior posting.) On the other hand, the respondent's brief (UDV Church) takes a narrower position-- the issue is the standard for issuing a preliminary injunction under the Religious Freedom Restoration Act. That does seem to be what the 10th Circuit's en banc opinion was about.

More interesting, perhaps, is skirmishing of a different sort that is going on in amicus briefs. Marci A. Hamilton, Professor at Cardozo Law School and church-state expert filed a brief on behalf of two "Tort Claimants Committees", groups of individuals suing the Catholic Church-- in particular, the Archdiocese of Portland and the Diocese of Spokane. Each religious entity has filed for bankruptcy. The claimants are seeking damages for prior sexual abuse, and in each case, the Diocese or Archdiocese is asserting that RFRA shields it from liability in some way. The Tort Claimants Brief argues that the Court should use this case to focus on the constitutionality of RFRA as applied to the federal government, and should hold that the law is unconstitutional. (The brief is available on Westlaw at 2005 WL 1630009). [Update- the brief is also available here.]

The brief argues that RFRA violates the separation of powers, is beyond Congress enumerated powers, and violates the Establishment Clause. While this argument might seem so far removed from the Court's original grant of certiorari that it could be ignored, a large number of civil rights groups have used their entire joint amicus brief to respond to Prof. Hamilton's constitutional arguments. They argue that the Court should not reach the constitutional issue, but, if it does, they urge the Court to uphold the constitutionality of RFRA as it applies to the federal government. Fourteen civil rights groups signed this joint amicus brief-- including some of the most influential groups in the area of church-state law. Among the signers were Becket Fund for Religious Liberty, American Jewish Congress, People for the American Way, American Jewish Committee, and the Unitarian Universalist Association.

States Have Offices For Faith-Based Initiatives

Twenty-six states and the District of Columbia now have offices to encourage faith-based initiatives, according to this morning's Grand Forks, North Dakota Herald. However, in North Dakota, the advisory panel on faith-based initiatives that was approved by the legislature last March has not yet even held its first meeting.

Religious Profiling In New Jersey?

New Jersey State Police who have been implementing federally mandated reforms to end racial profiling are now at the center of a dispute about religious profiling. The Newark Star-Ledger today reports that State Police have barred agents of the New Jersey Office of Counter-Terrorism (OCT) from filing reports in the State Police database, claiming that over 100 reports entered into the Statewide Intelligence Management System (SIMS) appeared to target suspects only because they practiced Islam or had connections to Muslim groups. OCT officials say that the reports were merely incomplete because supervisors did not have time to review them. The Governor's office called a meeting between state agencies to deal with the controversy. While the parties agreed that counter-terrorism agents were not intentionally profiling, they will not be allowed to file reports in SIMS until New Jersey's Attorney General finishes an investigation of the matter.

Hughes In Egypt Opposes Religious Extremism, Pushes Religious Freedom

The increasingly complex interaction of the U.S. government with religion in the post- 9/11 world is illustrated by Under Secretary of State Karen Hughes' trip to Egypt yesterday. Her first stop as Under Secretary for Public Diplomacy and Public Affairs was the 1000 year old center of Islamic learning in Cairo, Al-Azhar, where she emphasized the importance of fighting terrorism and religious extremism. Al-Azhar's leader, Sheik Mohammad Sayyed al Tantawi, was one of the first to condemn the Sept. 11 attacks. He also strongly condemned this year's London subway attacks. (See prior posting.) The U.S. State Department has released the text of Secy. Hughes' remarks made after her visit. She spoke about interfaith dialogue and the importance of religious freedom in the United States.

A Primer For Tomorrow's Dover Intelligent Design Trial

Tomorrow in Harrisburg, Pennsylvania, a trial will begin in federal district court on the Dover Area School District's policy on intelligent design. Intelligent design has become a flash point in the war over the role of religion in American society, and Kitzmiller v. Dover Area School District seems destined to become a symbolic battle. Today's Pittsburgh Post-Gazette has an excellent summary of the opposing views. At the heart of the case is a statement that the school district requires biology teachers to read to ninth-grade students:

The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, "Of Pandas and People," is available for students who might be interested in gaining an understanding of what intelligent design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.

Resources on the trial are proliferating. A particularly good source for all the primary legal documents, background and developments is the website created by the National Center for Science Education. The Discovery Institute has set up a website linking to background from the pro-intelligent design point of view. Bloggers are covering developments extensively. Ed Brayton's Dispatches From the Culture Wars is one blog that has been following the case for some time. Finally, among the flood of articles, Live Science's series on evolution vs. intelligent design seems particularly useful.

Crosses In Las Cruces Seal Challenged

In an Albuquerque, New Mexico federal district court, a lawsuit has recently been filed challenging the presence of three crosses in the official emblem of the city of Las Cruces, New Mexico. The Associated Press reported on Friday that the suit also claims that the city violated the Civil Rights Act of 1964 by requiring prospective employees to fill out job applications that include religious symbols.

This may be a harder case than most, because here the religious symbol is tied closely to the name and history of the city. The Las Cruces Sun-News today points out that the city's name, often translated as "The Crosses", may well have originated from groups of crosses that marked the graves of massacre victims in the area. Plaintiffs in the lawsuit, however, claim that they have been forced to view "the pervasive religious symbols endorsed by the city of Las Cruces and the state of New Mexico," and that they feel excluded from public participation in government activities.

Religious Revival In Mongolia

Yesterday's Salt Lake Tribune reports that since the collapse of communism in 1990, religion is flourishing in Mongolia. Christian groups of all sorts, as well as traditional Mongolian religions, are actively involved in the Asian nation. Mormons are particularly visible as they travel from house to house.

Boston Archbishop Urges Signing of Ballot Petition Against Gay Marriage

In Massachusetts, the Catholic Church is spearheading a drive to collect 66,000 signatures on a petition to get an anti-gay marriage proposal on the 2008 ballot. The Boston Globe today reported that Boston Archbishop Sean P. O'Malley has issued a letter that is to be read at masses this week end. It urges parishioners to sign the petition as a way to protect traditional marriage. The ballot proposal would ban gay marriage and would make no alternative provision for civil unions. However, Bishop O'Malley's letter also says "There is no room in the Church or in society for rejection, disregard or mistreatment of a person because of their sexual orientation." Meanwhile other religious leaders in Massachusetts, organized as the Religious Coalition for the Freedom to Marry, support civil marriage for gay couples.

School's Withdrawal Of Speaking Invite Poses No 1st Amendment Problem

Last week, the U.S. Ninth Circuit Court of Appeals, in an opinion short on facts, rejected a First Amendment claim in Carpenter v. Dillon Elementary School Dist. 10, 2005 U.S. App. LEXIS 20364 (Sept. 19, 2005). Fortunately, the Rutherford Institute's website gives us additional facts. The District 10 School Board originally approved inviting an evangelical Christian motivational speaker to appear at a voluntary school assembly. The school required that he not discuss his religious faith or the religious youth rally scheduled for that evening. Subsequently the board withdrew the invitation, concerned that the assembly might violate church-state separation requirements. The Ninth Circuit upheld the school board's decision, finding that the speaker had not been denied "the type of governmental benefit or privilege the deprivation of which can trigger First Amendment scrutiny".

Land Urges Religious Concerns Be Part of Foreign Policy

Richard Land, a commissioner of the U.S. Commission on International Religious Freedom, spoke at a conference on religious tolerance held at Rice University on Sept. 21. The Baptist Press yesterday reported on his interesting remarks:

Future [American] leaders must take religion seriously. Otherwise, foreign policies will fall short. Our leaders must factor religion into domestic and foreign policies [if America hopes to continue to have an impact on peace and freedom around the world.]... If the 20th century was a century of ideology, the 21st century is shaping up to be a century of religion. The more we ignore the reality of how religion plays a role in conflicts, the more problems we will have....

Land is also president of the Southern Baptist Ethics & Religious Liberty Commission.

Hindu Group Supports Wiccan In Supreme Court

The Hindu American Foundation has filed an amicus brief in support of a petition for writ of certiorari, asking the U.S. Supreme Court to grant review in the case of Simpson v. Chesterfield County. Spero News reported yesterday on the brief (full text) which backs reversing the Fourth Circuit's decision that a Wicccan leader could be denied the opportunity to be among those who present invocations at county board of supervisors meetings.

Lawyer Nikhil Joshi, a member of HAF's Board of Directors said: "This is perhaps the most blatant affirmation of religious discrimination by any court to date. If allowed to stand, the Fourth Circuit’s decision will allow Chesterfield County to continue to selectively dole out certain governmental privileges to members of majority religions over others."

Indian Court Reverses Book Ban

In 2003, the government of West Bengal (India) banned the book Dwikhandita ("Split in Two") by Bangladeshi writer Taslima Nasrin. The state's Home Secretary, Amit Kiran Deb, said that if the book were not banned, “it could ignite communal tension." (Background article.) Yesterday's issue of The Statesman reports that the ban has been reviewed and reversed by a three-judge Special Bench of Calcutta High Court. The court held that the ban would only be justified under the law if the book violated Indian Penal Code, Sec. 295A that provides: "Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens ..., by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment... or with fine, or with both."

The court says that the book criticizes Bangladesh for becoming a theocratic state, and was not specifically intended to insult Islam. Another report on the court's decision in the Calcutta Telegraph says that the court directed the government to return the books it had seized to the book's publisher. However, after the decision was handed down, the Jamiat-e-Ulama-e-Hind (Council of Muslim Theologians) declared at a rally in Calcutta that the author would not be allowed to enter any district in Bengal. "She has tarnished Islam in her book and must be punished," said its general secretary, Siddikullah Choudhury.

Does FEMA Require Blessing Of Recovered Bodies?

An article in the Sept. 26 issue of Newsweek says that in the Hurricane Katrina clean-up, FEMA requires that contractors engaged in recovery work of must make certain that chaplains bless bodies that are retrieved. Yesterday, Rabbi David Saperstein, head of Reform Judaism's Religious Action Center, wrote FEMA seeking clarification. His letter said: "Americans affected by Katrina practiced and continue to practice a diverse array of faiths or choose no faith at all. Just as government may not establish religion among its citizenry, it may not impose prayer upon individuals after their passing." The Newsweek article, Cash and 'Cat 5' Chaos, reports that when a FEMA spokewoman was asked if that was mixing church and state, she responded: "A prayer is not necessarily religious. Everybody prays."

Bet Din To Decide On Case Against Mohel

In a politically sensitive case, the city of New York withdrew its lawsuit against an Orthodox mohel suspected of transmitting herpes to three baby boys-- one of whom died. The mohel used an unusual procedure-- metzitzah b'peh-- in their circumcisions. (See prior posting.) New York's Jewish Week reports today that after nearly a year of investigation the city has turned the matter over to a chasidic rabbinical court (a Bet Din) in Williamsburg, Brooklyn. This appears to be the first time that New York City has turned a public health matter over to a religious court.

Teaching Biblical Literacy In Public Schools

New York Newsday reported yesterday that a new text book designed for teaching about the Bible in public high schools has just been published. The Bible and Its Influence attempts to avoid legal and religious disputes. The Bible Literacy Project of Fairfax, Va., spent five years and $2 million developing the book which has been endorsed by experts in literature, religion and church-state law. The book follows principles from a 1999 agreement between educational and religious groups, "The Bible and Public Schools," brokered by Bible Literacy and the First Amendment Center.

Meanwhile, another curriculum for teaching about the Bible in high school which has been severely criticized, has just been revised. Wednesday's Baptist Standard reported that the National Council on Bible Curriculum in Public Schools has issued a revision of its teaching guide, The Bible in History and Literature. The revision reflects a number of the constitutional and academic criticisms that surfaced last month in a review of the curriculum published by the Texas Freedom Network. (See prior posting.)

Jehovah's Witnesses Lose Facial Challenge To Puerto Rico Controlled Access Law

In an opinion that has recently become available, the federal district court in Puerto Rico last month rejected a facial constitutional attack by Jehovah's Witnesses to the Commonwealth's Controlled Access Law. In Watchtower Bible and Tract Society of New York v. Ramos, 2005 U.S. Dist. LEXIS 20652 (USDC PR, Aug. 9, 2005), the law that permits residential associations to close off neighborhoods in order to prevent crime was upheld against a series of First Amendment claims. Jehovah's Witnesses believe that they have a Bible-based duty to tell others about the contents of the Bible, and do this by going door-to-door in residential neighborhoods. The court rejected plaintiffs' facial challenge that claimed the law violated their speech, press, associational and religious exercise rights, as well as Fourth Amendment and right to travel claims. However, the court allowed plaintiffs' to present further evidence on their claims that the law was unconstitutional "as applied" to them.

New Religion Clause Scholarship

From SmartCILP:
Francis J. Beckwith, Gimme That Ol' Time Separation: A Review Essay (Reviewing Philip Hamburger, Separation of Church and State.) 8 Chapman Law Rev. 309-327 (2005).

G. Sidney Buchanan, Evolution, Creation-Science, and the Meaning of Primary Religious Puropose, 58 SMU Law Rev. 303-317 (2005).

Posted online:
Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming in Stanford Law & Policy Review. (Abstract)

Muslim Firefighter Loses Bid To Keep Beard On Job

Yesterday, a common pleas court judge in Philadelphia ruled against a Muslim firefighter, agreeing with the city that the firefighter cannot wear a beard on the job. The Associated Press reported yesterday that the court found the city's concern about safety problems with the seal on respiratory masks posed by beards was a compelling interest that justified an exception to the protections granted by Pennsylvania's Religious Freedom Protection Act. "Directive 13 (the facial-hair ban) ... is the least restrictive means of furthering its compelling interest in maximizing safety for its members," Common Pleas Judge James Murray Lynn wrote in his order. The court had granted a preliminary injunction to the firefighter pending this decision. (See prior posting.)

RI Supreme Court Rejects Opening Birth Records Based On Mormon Beliefs

On Sept. 19, in In re Philip S., the Rhode Island Supreme Court ruled against an adoptee, now an adult, who claimed that his Mormon religious beliefs should permit him to discover the identity of his birth mother. He claimed that he had a religious duty to trace his ancestry. Additional details of the case, in which the court placed a high value on confidentiality of adoption proceedings, are reported in today's Providence Journal. The Court avoided ultimately deciding a difficult constitutional issue by holding that the petitioner presented the Family Court with no meaningful evidence to support his claim of good cause to open his records other than his own subjective assertions about what he considered to be the requirements of his religion. In a footnote, however, the Court said: "While we make no definitive holding at this time, it is our tentative view that, unless a petitioner’s religious beliefs can be “translated” into a more secular context (such as being a constituent element of a particular petitioner’s psychological need), we do not see how deferring to such a belief would be anything other than a preferential treatment by government based upon religion."

Ballot Measure On Cross In City Seal

In Redlands, California this fall, voters will be called on to cast their ballot on Measure Q, a voter initiative that would amend the municipal code to make official the the city seal used since 1963 that includes in it a cross. The Redlands Daily Facts yesterday reported on the likely challenge that will be raised by the ACLU if the initiative is passed. The Save Redlands' Seal Committee says that the symbol represents the legacy of religion in Redlands, which has sometimes been called the "city of churches." An opposing group, the Redlands Values Coalition, says that using a cross in the logo is intolerant of other faiths, unconstitutional, and fiscally irresponsible because the city would be liable for the ACLU's court costs if it loses in litigation.

ACLU Encourages States To Refuse Abstinence Grants

Today's Washington Times reports that the ACLU is targeting 18 states to encourage them to reject federal funds for "abstinence only" sex education programs in public schools. Among the ACLU's reasons for opposing the programs is their claim that the programs promote religion. Maine announced this week that it will join California and Pennsylvania in rejecting grant money available under Title V of the Social Security Act (42 USC Sec. 710). The Bush administration has proposed increasing the funding for abstinence programs in next year's budget to $206 million.

CA Medical Association Withdraws Original Brief Supporting Doctors' Religious Objections

Oral arguments are scheduled October 11 in a San Diego, California state court of appeals in the case of two doctors who refused because of their religious beliefs to provide artificial insemination to a lesbian. The Associated Press reported yesterday that the California Medical Association which originally filed a brief backing the doctors has now withdrawn its controversial brief, and will file another brief in its place. The Medial Association's Chief Executive, Jack Lewin, said, "it is clear that CMA's policy commitment to oppose any form of invidious discrimination had been so significantly confused and misrepresented, that it was in the best interest of CMA to withdraw the brief." The CMA's new brief says that legal and ethical standards prohibit physicians from discriminating on the basis of sexual orientation, gender identity or marital status, but they can refuse to perform certain procedures on religious grounds if they refuse such treatment for all patients.

Court Will Decide Pastor's Claims Against His Former Church

In Duncan v. Peterson, decided Sept. 8, 2005, the Illinois Court of Appeals permitted a pastor to sue his former church that revoked his ordination. Richard Duncan, and Hope Church of which he was pastor, sued Moody Church, its pastor and chairman of its board of elders. They alleged that defendants invaded Duncan's privacy by sending false and misleading letters revoking Duncan's ordination as a minister. They also alleged conspiracy to damage Duncan's reputation. Duncan, who had been ordained by Moody Church, was charged by defendants with financial and personal wrongdoing. The trial court had dismissed the claims based on the doctrine of ecclesiastical abstention. The court of appeals reversed that holding in part, finding that Duncan's claims can be decided without extensive inquiry into religious law and policy.

ACLU Urges Anti-Discrimination Provisions In Head-Start

The House of Representatives is expected to debate today the School Readiness Act of 2005 (H.R. 2123), which would reauthorize the Head Start program. It is expected that some members of Congress will attempt to amend the bill to allow religious organizations that are Head Start providers to hire teachers based on their religious beliefs. (See prior posting.) The ACLU yesterday urged the House of Representatives to oppose any amendments that would repeal current anti-discrimination provisions in the law. In its letter to members of Congress, the ACLU argues that the statute would be unconstitutional if amended to exempt religious organizations from anti-discrimination provisions.

UPDATE: The AP reports that Thursday afternoon, the House, by a vote of 220-196, approved an amendment offered by Rep. John Boehner to provide hiring protections for faith-based Head Start providers. The ADL immediately issued a release criticizing the amendment. It said: "Federally funded religious discrimination is always wrong, and to permit such discrimination in Head Start, an historic anti-poverty program universally acclaimed and present in so many communities across the country, is misguided and dangerous."

Sikhs In French Court Challenging Turban Ban In Schools

The application to Sikhs of France's law banning the wearing of "conspicuous religious symbols" in public schools is now before France's highest court, the Conseil d'Etat. (See prior postings 1, 2). Today's Hindustan Times reports that counsel is arguing that the Sikh turban is not a "conspicuous" religious symbol, but a part of religious practice. If this argument does not succeed, the petitioners plan to go to the European Court of Justice.

Court Upholds License Photo Requirement

In Valov v. Department of Motor Vehicles, (Sept. 20, 2005), a California appellate court rejected free exercise claims under the U.S. and California constitutions raised to the requirement that a driver's license contain a photo of the licensee. Jack Peter Valov is an orthodox member of the Molokan religious faith. He believes that the Biblical prohibition against "graven images" prohibits the photographing of his image.

The Court rejected Valov's First Amendment claim because the photograph requirement is a neutral, generally applicable requirement that is rationally related to achieving the legitimate governmental interests of promoting highway safety, discouraging fraud, and deterring identity theft. In doing so, the Vehicle Code only incidentally burdening Valov's religious beliefs and practices. The Court rejected a free exercise claim under the California Constitution because the photograph requirement was narrowly drawn to achieve compelling and legitimate state purposes.

Student Seeks Right To Read Bible With Friends During Recess

On Monday, the Alliance Defense Fund asked a federal court in Knoxville, Tennessee to issue a preliminary injunction so that 10-year-old student, Luke Whitson, can read and discuss the Bible with his friends during school recess. In its Memorandum supporting its motion (full text), ADF argues that the school is wrong in treating recess as school instructional time for First Amendment purposes. The motion claims that the school is violating the student's First Amendment speech and religion rights and the due process and equal protection clauses of the 14th Amendment, and that permitting the activity during recess does not violate the Establishment Clause.

Catholic Church vs. PSOE Government In Spain

An article posted on Wednesday on the World Socialist Web Site says that the Catholic Church in Spain is using its network of family organizations, Concapa, in a campaign to oust the Spanish Socialist Workers Party (PSOE) government and return the right-wing Popular Party to power. The Church particularly objects to PSOE's policies on education under which Catholic families will retain the right to choose a religious education for their children, but it will be optional. The Church is also opposed to a proposal to allow Islamic clerics to teach religion in schools. Before the Popular Party was defeated in March 2004, it had proposed the Organic Law of Educational Quality (LOCE). LOCE would have reintroduced compulsory religious education for primary and secondary pupils.

ACLU and ADF On Same Side In School Free Exercise Case

The ACLU of New Jersey finds itself, for a change, on the same side of a case as the Alliance Defense Fund. The case (see prior posting) involves the refusal by a Frenchtown, NJ elementary school to allow an eight-year old girl to sing "Awesome God" in an after-school talent show. The New Jersey Express-Times reports that on Monday the ACLU filed a motion to join the case as amicus on behalf of the student, Olivia Turton. ACLU attorney Jennifer Klear said: "Because the school left the choice of songs up to each individual student, no reasonable observer would have believed that the school affirmatively endorsed the content of each student's selection. Therefore it would not constitute a violation of the separation of church and state. Rather, it's an issue of religious freedom." (See ACLU release.)

Romanian Conference On Religious Liberty

The Adventist News Network yesterday reported on a seminar held earlier this month in Romania on "Religious Liberty in the Romanian and European Context." The conference was organized by organized by the Ministry of Culture and Religious Affairs, State Secretariat for Religious Affairs and the National Association for the Defense of Religious Liberty. A new law on religious freedom (full text) is being considered by the Romanian Parliament. At the Conference, Brigham Young University law professor Dr. W. Cole Durham Jr., said that the proposed law promotes religious liberty, but could be improved in its current "multi-tiered" system of religious organizations that gives some groups more prominence than others.

Iraqi Catholic Bishops Want Change In Constitution

At the last minute, the Iraqi Catholic Bishops' Conference is seeking changes in Iraq's draft Constitution. The Catholic News Service reports today that Chaldean Patriarch Emmanuel-Karim Delly met Iraqi interim President Jalal Talabani and Prime Minister Ibrahim Jaafari Sept. 18 to ask them to remove from the draft the clause providing that laws cannot contradict the undisputed rules of Islam. The Iraqi Bishop's Conference issued a public statement the next day, expressing concern about provisions in the draft Constitution that might lead to discrimination against Christians.

"See You At The Pole" Is Tomorrow, But Is Already In Court

Tomorrow at public schools around the country, students will participate in the annual "See You At the Pole" event. SYATP involves students' gathering at their school flagpoles before classes begin to pray for their leaders, schools, and families. According to the press release for this year's event, over 2 million teenagers participated in last year's programs. This year's theme is "PRAY: call 2 me".

Meanwhile, in Denver, Colorado, a federal judge refused to order a Pueblo, Colorado high school principal to show a video announcing the SYATP rally at his school. According to today's Pueblo Chieftan, a student group called the Fellowship of Christian Bulldogs asked for the 73-second video to be shown during normal school announcements over closed-circuit television. The principal refused because the video called for students to "pray for your school, family, nation and world." The principal, Miguel Elias insisted that references in the video to "prayer" be changed to "event", in order to avoid the school promoting prayer. The student leader of SYATP refused, saying that students who would show up an hour before school for the rally might be offended, not knowing the event was about prayer. However, U.S. District Judge Lewis Babcock agreed that the principal's position was reasonable. He urged both parties to begin negotiations on how to announce next year's rally.

Justice Department Urges Diplomatic Immunity For Pope

In a pending case in U.S. District Court for the Southern District of Texas, the United States Department of Justice has filed a "suggestion of immunity", arguing that Pope Benedict XVI enjoys diplomatic immunity as head of state of the Vatican. According to today's Syndey Morning Herald, the filing says that allowing the lawsuit to proceed would be "incompatible with the United States' foreign policy interests". The former Cardinal Joseph Ratzinger was named as a defendant in a civil lawsuit by three boys who allege that a seminarian molested them during counseling sessions in the mid-1990s. The lawyer for the boys says that if the court grants diplomatic immunity, he will challenge the constitutionality of giving diplomatic recognition to the Holy See, claiming that it violates the Establishment Clause. (See prior posting.)

The Noah Alliance

On Wednesday, a coalition of Jews and evangelical Christians will announce a coalition to support the Endangered Species Act. A release published yesterday by the Religious News Service reports that the Academy of Evangelical Scientists and Ethicists along with the Coalition on the Environment and Jewish Life have formed the Noah Alliance. The House Committee on Resources is considering major changes in the Endangered Species Act.

Some Charges Against Macedonian Archbishop Upheld

Last week, Macedonia's Supreme Court acquitted the head of the Serbian Orthodox Church in the country of two charges, but affirmed his conviction on two others, upholding the 18-month jail sentence he is serving. According to Forum 18 today, Archbishop Jovan (Vranisskovski) of Ohrid. The Archbishop was acquitted of charges of holding a religious service in his father's apartment and being present at the consecration of two bishops in Serbia in 2003. But his conviction for inciting national and religious hatred by becoming exarch of the Ohrid Archbishopric, and for having church calendars were affirmed. The calendars were booklets containing holy dates, prayers and saints' pictures. After prior acquittals, he now faces a new trial on charges of embezzlement, which he alleges was merely depositing foreign funds under his name because the Church was not allowed to hold foreign currency.

Law and Religion Scholarship Recently Published

New law review articles of interest from this week's SmartCILP:
Tawia Ansah, A Terrible Purity: International Law, Morality, Religion, Exclusion, 38 Cornell Int'l. Law Jour. 9-70 (2005).

Justus Reid Weiner, Palestinian Christians: Equal Citizens or Oppressed Minority In a Future Palestinian State, 7 Oregon Review of Int'l. Law 26-222 (2005).

Also just out is Vol. 3, No. 1 of the UCLA Journal of Islamic and Near Eastern Law (2003-04). Included in it are: Anver M. Emon, Toward a Natural Law Theory in Islamic Law: Muslim Juristic Debates on Reason As a Source of Obligation; and Andrew Grossman, "Islamic Land": Group Rights, National Identity and Law.

Newly posted on SSRN:
David E. Guinn, Religion In the Public Square: The Debate, forthcoming in The Encyclopedia of American Civil Liberties.

Malaysia Court Rejects Reflecting Conversion On Identity Card

In Putrajaya, Malaysia, an appellate court has rejected an application to remove "Islam" from the identity card of a woman who says she has accepted the Christian faith. Bernama reports today on the 2-1 decision which held that her renunciation of Islam had not been confirmed by a Sharia court or any other Islamic religious authority.

Mass. Governor Urges Mosque Wiretapping

Last week, Massachusetts Governor Mitt Romney spoke to the Heritage Foundation on Homeland Security: Status of Federal, State and Local Efforts (webcast of speech). The Fitchburg, Massachusetts Sentinel today reports on some particularly controversial comments he made regarding surveillance of mosques:

How about people in settings, mosques for instance, that may be teaching doctrines of hate and terror? Are we monitoring that? Are we wiretapping? Are we following what's going on? Are we seeing who's coming in? Are we seeing who's coming out? Are we eavesdropping, carrying out surveillance on those individuals from places that sponsor domestic terror?

The Anti-Arab Discrimination Committee has called on Romney to repudiate his remarks, but the Governor has refused to do so.

Jewish Naval Academy Chapel Dedicated; Catholic League Issues Equivocal Press Release

Yesterday at the U.S. Naval Academy, a Jewish chapel was dedicated. The Washington Post reported Saturday that now, for the first time, Jewish midshipmen will have their own place to hold religious services. The other service academies already have chapels for their Jewish students. The new building is named after Uriah P. Levy, a naval officer during the War of 1812, who was court-martialed because of conflicts with fellow officers over their anti-Semitic insults.

Last Thursday, the Catholic League for Religious and Civil Rights issued a somewhat equivocal press release on the topic. While applauding the building of the chapel, it noted that traditional civil liberties groups have not objected to the spending of federal funds on it, while they routinely object to the spending of federal funds for classroom materials for Catholic schools. Catholic League president William Donohue concluded the release with the following rather oversimplified criticism of current First Amendment doctrines: "In other words, prayer rugs can be purchased with federal funds to accommodate suspected Muslim terrorists in Guantanamo Bay, and Jewish chapels can be built with federal monies, but Christian kids can’t sing 'Silent Night' in the classroom. Got it everyone?"

Catholic Leader Calls For Civil Disobedience On Pledge

Last week, a California federal district court, following precedent set by the Ninth Circuit Court of Appeals, held that recitation in school classrooms of the Pledge of Allegiance, containing the phrase "under God", violates the Establishment Clause. (See prior posting.) While many religious leaders have been critical of the decision, William Donohue, President of the Catholic League for Religious and Civil Rights has been particularly outspoken. In a release issued last Wednesday, he said:

Now that U.S. District Judge Lawrence Karlton has said he would sign a restraining order banning the recitation of the Pledge of Allegiance in some California school districts, the time has come for patriotic teachers in those schools to practice civil disobedience. They need to lead their students in the Pledge, bellowing the dreaded words "under God." But nothing should be done until the television cameras are in place—the sight of teachers being handcuffed by the police would be an invaluable teaching moment.

Settling this issue in court is fine, but it is inadequate: it’s time to shock the conscience of the nation by bringing this matter directly into their living rooms.

Pres. Bush At Dinner Honoring 350 Years of American Jewish Life

Last Wednesday, President Bush spoke at a dinner in Washington honoring the 350th anniversary of Jewish life in America. His remarks (full text) included the following:

Religious freedom is a foundation of fundamental human and civil rights. And when the United States promotes religious freedom, it is promoting the spread of democracy.... Religious freedom is more than the freedom to practice one's faith. It is also the obligation to respect the faith of others. So to stand for religious freedom, we must expose and confront the ancient hatred of anti-Semitism, wherever it is found....

Under America's system of religious freedom, church and state are separate. Still, we have learned that faith is not solely a private matter. Men and women throughout our history have acted on the words of Scripture and they have made America a better, more hopeful place. When Rabbi Abraham Heschel marched with Martin Luther King, we saw modern-day prophets calling on America to honor its promises. We must allow people of faith to act on their convictions without facing discrimination.

And that's why my administration has started a faith-based and community initiative, to call on the armies of compassion to help heal broken hearts. A few years ago in New York, the Metropolitan Council on Jewish Poverty was discouraged from even applying for federal funds because it had the word "Jewish" in its name. We must end this kind of discrimination if we want America to be a hopeful place.

Miss. Supreme Court Rules On Priest-Penitent Privilege In Discovery

On September 15, the Mississippi Supreme Court in Mississippi United Methodist Conference v. Brown held that a document-by-document review was required in discovery to determine whether particular documents were covered by the priest-penitent privilege. Today's Jackson, Mississippi Clarion-Ledger reports on the case which involves release of United Methodist Church documents to a woman who had filed a $10 million lawsuit against a minister who sexually assaulted her.

Peremptory Removal of Clergy As Jurors Unconstitutional

In Highler v. State, (IN Ct. App., Sept. 15, 2005), an Indiana state appellate court held that the prosecution's use of peremptory challenges in criminal trials to remove all members of the clergy from jury panels "because they're more apt for forgiveness" is unconstitutional. However, it found tha in this case there were other legitimate reasons for the peremptory challenge of an African-American clergyman.

Sabbath Observer Gets Unemployment Compensation

In Guaranteed Auto Finance, Inc. v. Director, ESD (Sept. 14, 2005), an Arkansas court of appeals upheld an administrative agency's award of unemployment compensation to an employee who left his work because the company required he work on Saturday, his Sabbath. The court held that the employee had good cause to leave his job when his religious beliefs conflicted with his employer's requirements.

Bush's Remarks At National Services For Katrina Victims

On Friday, President Bush spoke at the National Day of Prayer and Remembrance Service at the Washington National Cathedral honoring victims of Hurricane Katrina. His remarks (full text) included the following:

In this hour of suffering, we're prayerful. In a wounded region, so many placed their faith in a God who hears and helps. And so many are bringing their grief to a Savior acquainted with grief. Our nation joins with them to pray for comfort and sorrow, for the reunion of separated families, and a holy rest for the ones who died.

Through prayer we look for ways to understand the arbitrary harm left by this storm, and the mystery of undeserved suffering. And in our search we're reminded that God's purposes are sometimes impossible to know here on Earth. Yet even as we're humbled by forces we cannot explain, we take comfort in the knowledge that no one is ever stranded beyond God's care. The Creator of wind and water is also the source of even a greater power -- a love that can redeem the worst tragedy, a love that is stronger than death.

County Will Not Send Judge To Florida Christian CLE Program

Hamilton County, Ohio Commissioners have refused to authorize $1700 to send Cincinnati state court of appeals judge Rupert Doan to a Christian legal conference in Naples, Florida. The Cincinnati Enquirer today reported that even though judges are required to attend continuing legal education programs, this one, the Christian Legal Society's national conference titled Faith at the Crossroads: Following Christ in Law & Life, was turned down by the county commission not because of its religious content, but because of its "exotic Location".

White House On Faith-Based Initiatives and Katrina

The White House has posted on its web site the transcript on an online "Ask the White House" forum in which Jim Towey, Director of the White House Office of Faith-Based and Community Initiatives discusses the role of religious organizations in Hurricane Katrina relief. The posting includes Towey's answers to a dozen different questions from around the country on relief measures and other topics. Here is an example:

Tom, from Gaithersburg, MD writes: Why does huricane releief have to be "faith based". Why can't people withouth "faith" get huricane relief? Thomas Munro

Jim Towey: Hi Tom. Just to be clear, people without faith are equally eligible to receive disaster assistance. There is not a "faith test" for aid. And people very devout in their faith or with no faith at all have been volunteering and helping serve hot meals to the hungry and house those without home. It has been marvelous to watch.

High School Student Suspended For Handing Out Religious Literature

The Staunton, Virginia News Leader reported today on the three-day suspension of a high school student who refused to stop distributing religious literature at her Augusta County public high school. The student, Samantha Weatherholtz , had passed out about 100 leaflets when Fort Defiance High School's Assistant Principal told her to stop. The only comment from school officials was from Assistant Superintendent George Earhart, who said: "I am certainly going to look into it next week. At this point, I do not have anything else to say."

Faith-Based Initiatives, Katrina and the Jewish Community

Liberal Jewish groups have historically opposed President Bush's faith-based initiatives. The Baltimore Jewish Times today reports that the aftermath of Hurricane Katrina has created new concerns for these groups. Synagogues and Jewish day schools that have set up shelters and other relief services will have to decide whether to accept federal aid that is likely to be available to faith-based groups, and Jewish institutions damaged by the hurricane will have to decide whether to accept assistance from FEMA. There also is concern that future Federal aid packages will contain funds for religious groups to provide relief. That could put opponents of faith-based initiatives in the difficult position of opposing disaster relief.

NY College Sued Over Denial Of Access By Religious Speaker

On Sept. 7, the Alliance Defense Fund filed suit alleging First Amendment violations (full complaint) against New York's Ulster County Community College on behalf of an individual who was not permitted to speak on campus about his Christian faith and hand out religious literature. ADF's release on the case explains that the plaintiff, Greg Davis, was first told that he could speak. Later the same day that he was told he would need to submit a facilities use permit application even though he did not intend to make use of any school buildings. Finally, Davis left campus after a different school official informed him that his religious expression was totally prohibited. Davis then filed the use permit application, but it was denied because religious expression does not constitute a "cultural," "educational," "social," or "recreational" activity.

Pledge Decision Condemned By Officials; Appeal Planned

Official reactions were quick to come to Wednesday's federal district court decision from California finding that school classroom recitation of the Pledge of Allegiance containing the phrase "under God" violates the Establishment Clause. (See prior posting.)

U.S. Attorney General Alberto Gonzales issued the following statement:

For more than two hundred years, many of our expressions of national identity and patriotism have referenced God. The Supreme Court, which opens each session by saying "God save the United States and this honorable Court," has affirmed time and again that such official acknowledgments of our Nation's religious heritage, foundation, and character are constitutional. The Department of Justice will continue vigorously to defend the ability of American schoolchildren to pledge allegiance to the flag.

Also, late Thursday, the U.S. Senate voted to condemn the court ruling (S. Res. 243), according to a report by the Associated Press.

Meanwhile, the Knights of Columbus, one of the defendants in the case, announced that it planned an immediate appeal.

Baptist Meeting Examines Religious Liberty

Yesterday, the Baptist Press reported on the recent Baptist Distinctives Conference sponsored by the Southwestern Baptist Theological Seminary. Keynote speaker was Richard Land, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. The theme of the Conference was “The First Freedom” of religious liberty. In his remarks, Land said: "The greatest threat to religious freedom in America are secular fundamentalists who want to ghetto-ize religious faith and make the wall of separation between church and state a prison wall keeping religious voices out of political discourse."

Roberts' Testimony On Church-State

The Wall of Separation blog carries an interesting summary of John Roberts' testimony on his church-state views given during his confirmation hearings. One of Roberts' statements:

[The Court] has adhered through thick and thin to the Lemon test, probably because they can’t come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.

Prison Ban On White Supremacist Books Upheld

In Borzych v. Frank, 2005 U.S. Dist. LEXIS 19840 (USDC, WD Wis., Sept. 9, 2005), a Wisconsin federal district court rejected a prisoner's claim that he was wrongfully denied access to several White Supremacist books in violation of his religious rights. The court rejected plaintiff's First Amendment, RLUIPA, and state statutory claims, finding that the prison's "interest in maintaining a safe and secure multi-racial prison environment is served by minimizing plaintiff's ability to flaunt his kinship with a disruptive group whose philosophical ideology promotes racial superiority, encourages violence and disregards social standards."

California District Court Finds Pledge In Classrooms Unconstitutional

Yesterday in Newdow v. Congress of the United States, the United States district court for the Eastern District of California held that the Ninth Circuit's prior decision finding that the recitation of the Pledge of Allegiance in public school classrooms violates the Establishment Clause is binding on the district court. That decision, questioning the inclusion of "under God" in the Pledge, was subsequently reversed by the U.S. Supreme Court because the plaintiff, Michael Newdow, lacked standing. Now the district court applies the prior 9th Circuit holding on the merits in an extremely narrow manner.

First the district court denied standing to Michael Newdow, but found that the other plaintiffs who are parents of school children had standing. On the merits, it held that teacher-led recitation the Pledge in school classrooms violates the Establishment Clause because of the pressure placed on students to recite it, but that reciting the Pledge at school board meetings does not create the same kind of coercion. Finally, in an interesting twist, the Court held that since it stands ready, if requested, to enjoin the recitation of the Pledge in classrooms, the parents who are plaintiffs no longer have any injury in fact. Therefore, their challenge to the constitutionality of 4 U.S.C. Sec. 4, which codifies the wording of the Pledge of Allegiance, is rendered moot.

The New York Times today reports that teachers in the Elk Grove Unified School District, one of the Districts involved in the lawsuit, were told to continue leading students in the pledge because the judge's ruling did not include an injunction.

ACLU Questions Use Of Religion By New Mexico Coach

The Albuquerque, New Mexico Tribune reported yesterday that the New Mexico chapter of the American Civil Liberties Union is again raising concerns that University of New Mexico men's basketball coach Ritchie McKay is inappropriately mixing religion with his recruiting and coaching. This round of complaints was triggered by newspaper accounts of McKay's recruitment of Kansas transfer J.R. Giddens.

The ACLU went public with its concerns after being unhappy with the response it received to an Aug. 4 letter it wrote to McKay and Athletics Director Rudy Davalos. McKay says he never received the ACLU letter, but denies any improprieties. However, McKay says that the pastor of his church will continue to attend practices, because "he has a great relationship with many of our players."

Summary Judgment Denied In Dover Intelligent Design Case

A trial in the evolution/Intelligent Design controversy in Pennsylvania's Dover School District is scheduled to start on Sept. 26. The York Daily Record reported yesterday that U.S. District Judge John E. Jones III on Tuesday denied Dover's request that the case be dismissed before trial through summary judgment.

Ontario Premier Wants To Ban Religious Tribunals; Objections Voiced

According to the Associated Press, Jews and Muslims in Ontario will fight for faith-based tribunals to settle family disputes after Ontario Premier Dalton McGuinty announced on Sunday that he would introduce legislation to ban all religious arbitration in Ontario. McGuinty on Sunday said that religious arbitrations "threaten our common ground." He promised his Liberal Party government would introduce legislation to outlaw them in Ontario. B'nai B'rith Canada is considering a constitutional challenge to the decision that would ban the long-standing use of rabbinical courts to grant divorces and adjudicate other family matters. (See related prior posting.)

Cert Filed In Americorps Religious Funding Case

The American Jewish Congress announced today that it has filed a petition for certiorari in the United States Supreme Court asking it to review the D.C. Circuit Court of Appeals March 2005 decision in American Jewish Congress v. Corporation for National and Community Service. At issue is whether the Corporation for National and Community Service which administers federal Americorps programs may provide education awards to teachers who teach religion as well as secular subjects in religious schools, and whether it may make grants to the religious organizations that oversee those teachers. AJC contends that this violates the Establishment Clause.

New Scholarly Papers Online

On SSRN:
Cornell University Professor Bernadette A. Meyler, The Equal Protection of Free Exercise: Two Approaches and their History .

On Bepress:
McGeorge School of Law Professor Gregory C. Pingree, Rhetorical Holy War: Polygamy, Homosexuality, and the Paradox of Community and Autonomy.

Southwest Missouri State University Professor Kevin Pybas, Two Concepts of Liberalism in Establishment Clause Jurisprudence.

Another 10 Commanments Monument OK'd

The Seattle Post-Intelligencer reports that yesterday a federal district court in Seattle, Washington applied the U.S. Supreme Court's recent rulings on Ten Commandments monuments and held that a monument on public property in Everett, Washington may remain. The monument, donated by the Fraternal Order of Eagles 45 years ago, was almost identical to the one in Texas that the U.S. Supreme Court approved in the Van Orden case in June 2005.

UPDATE: Here is the full opinion inthe case, Card v City of Everett.

TX Capital Punishment Laws Do Not Violate Establishment Clause

In Roach v. Dretke, 2005 U.S. Dist. LEXIS 19697 (USDC ND Texas, Sept. 9, 2005), a federal district judge rejected arguments that the Texas capital punishment laws violate the Establishment Clause. The court held, however, that there were a number of secular purposes for the law. It said that where proponents of the death penalty did cite the Bible, it was in response to quotes from the Bible by those opposed to capital punishment.

6th Circuit Upholds RLUIPA On Spending Clause Grounds

In May 2005, the U.S. Supreme Court upheld the Religious Land Use and Institutionalized Person Act against an Establishment Clause attack. On remand to the U.S. Sixth Circuit Court of Appeals, challengers claimed other constitutional defects in the statute. Yesterday, the Sixth Circuit in Cutter v. Wilkinson held that RLUIPA was a valid exercise of Congress' power under the spending clause. Because this was a sufficient basis for the statute, the court indicated that it need not decide whether Congress could also have relied on the commerce clause to enact the statute. [Thanks to Derek Gaubatz via Religionlaw listserv for the lead.]

Two Prisoner Cases From Wisconsin

In West v. Overbo, 2005 U.S. Dist. LEXIS 19550 (EDWis., Sept. 8, 2005), a Wisconsin federal district court reject a Muslim inmate's claims that prison authorities retaliated against him by serving nutritionally inadequate food, insulting Ramadan participants by issuing an extra dessert, and repudiating the feast of Eid-al-Fitr.

In Andreola v. Wisconsin, 2005 U.S. Dist. LEXIS 19535 (EDWis., Sept. 2, 2005), a county jail inmate had requested that he be served a kosher diet prepared in separate facilities which he could supervise. The court rejected his First Amendment claim based on a denial of his request, as well as his fraud claim. However, the court permitted more evidence to be introduced on the prisoner's claim under the Religious Land Use and Institutionalized Persons Act.

Raising Legal Fees On eBay By Selling the Decalogue

In July, a Georgia federal judge ordered Barrow County to remove a Ten Commandments plaque from its courthouse. (See prior posting.) A private group, Ten Commandments-Georgia, pledged to reimburse the county for its legal expenses. The Atlanta Journal Constitution reports today that in order for the group to raise the last $52,000 it needs to meet that pledge, it has put up for auction on e-Bay the authentic Ten Commandments plaque that was removed under the order of the court.

Temporary Injunction For Churches Against MN Concealed Carry

The Associated Press reported yesterday that Hennepin County, Minnesota District Judge LaJune Thomas Lange granted two Twin Cities churches a temporary injunction against enforcement of Minnesota's concealed carry law. The statute requires churches that wish to exclude firearms to post signs with specific wording. It also allowed concealed weapons in church parking lots and in church premises leased to other groups. (See prior posting.) One church ignored the required wording and put up signs that read "Blessed are the peacemakers. Firearms are prohibited in this place of sanctuary.'' The temporary injunction applies until a trial is held. The judge said that the statute "impermissibly intrudes into the free exercise of religion by arbitrary definitions, which dictate restrictions on the use of church property for worship, childcare, parking and rental space."

3 Briefs In O Centro Available

The full briefs submitted by both parties, as well as one of the amicus briefs, in Gonzales v. O Centro Espirito which will be argued before the US Supreme Court on November 1 have been posted by Mark Kleiman on his blog. The case involves a challenge under the Religious Freedom Restoration Act to a prohibition under the drug laws on the use of ayahuasca for religious purposes. (See related posting.)

Dutch Court Bars Funding of Christian Party That Discriminates Against Women

From the Netherlands, Expatica reports today that a court in The Hague last week prohibited the Dutch government from continuing to give an annual grant to a small Christian political party, the Staatkundig Gereformeerde Partij (SGP). The court accepted the argument advanced by a coalition of women's groups that the State should not fund a party that does not allow women to be full members. The Court said that the funding violates the United Nations Convention on Discrimination against Women which Netherlands has ratified. The Dutch government says it will appeal the ruling.

Columnist Questions Faith-Based New Orleans Aid

James Carroll's column in today's Boston Globe asks whether "the abysmal performance of government agencies in responding to this crisis [in New Orleans] isn't related to the unprecedented emphasis the government itself has been putting on ''faith-based" groups as key providers of social services." He continues:

Even when faith-based groups claim to offer social services with no strings attached, one must ask if such detachment is possible.... The problem is redoubled when religiously sponsored good works supply essential needs in place of government responses. Something essential to democracy is at stake here. The rights of citizens to basic relief, especially in times of crisis, are rooted not in charity, but in justice. Charity can be an affront to the dignity of citizenship. Citizens in a democracy, after all, are the owners of government; therefore government help is a form of self-help.

Anti-Sharia Protests In Canada Also Threaten Jewish and Catholic Tribunals

Ynet News reports today on an unanticipated consequence of the furor over the possible introduction of Islamic tribunals in Canada. (See prior posting.) The protests threaten the use in Ontario since 1991 of Jewish and Catholic tribunals to settle family law matters on a voluntary basis. Ontario Premier Dalton McGuinty said that he is against letting Islamic law be used to settle family disputes, and will move against existing religious courts, as well.

Idaho Governor's Plans For Dalai Lama Visit Protested

The Dalai Lama is visiting Sun Valley, Idaho this weekend. The Associated Press reported on Saturday that Idaho's Governor Dirk Kempthorne had school children write essays related to the Tibetan Buddhist leader's visit and plans to send busloads of school children to see him in Sun Valley on Monday. The Governor's web site features extensive information about the visit of the Buddhist leader Some parents have complained that the governor's plans violate the constitutionally required separation of church and state.

Pastor Claims 9-11 Memorial Design Is Islamic Crescent

World Net Daily reported yesterday that Rev. Ron McRae, head of the Bible Anabaptist Church near Jerome, Pa., is considering going to court to challenge the design that has been approved for the memorial to honor the victims of Flight 93 that crashed in Pennsylvania on 9-11. The memorial will be a mile-long semicircle of red maples surrounding the place near Shanksville, Pa, where the flight's 40 passengers and crew were killed. The pastor argues that the design, called "Crescent of Embrace", is in fact the symbol of Islam. McRae said: "They wouldn't dare put up the Ten Commandments or the cross of Christ, but they're going to put up a red crescent. We're not going to stand idly by and allow this to happen."

Israel's Cabinet Votes To Leave Gaza Synagogue Buildings Standing

The Jerusalem Post today reports that Israel's Cabinet, by a vote of 14-2, has decided not to destroy the buildings in the Gaza Strip that had been used as synagogues. Even though Israel's High Court of Justice ruled that Israel could destroy the buildings as part of its disengagement from Gaza, significant opposition to the plan arose from rabbis within Israel as well as from Jewish communities outside of Israel who argued that the plan would encourage destruction of synagogues elsewhere in the world. (See prior posting ). The Palestinian Authority is not happy about the decision to leave the buildings standing, since the fear the bad publicity if they are not be able to prevent radical Palestinians from destroying the buildings. One Israeli official said that the buildings, from which all contents have been removed, might be sealed with cement to prevent their destruction.

UPDATE: On Monday morning, Aljazeera reported that Palestinians set fire to 3 abandoned Gaza synagogues as Israeli troops left the area. A synagouge in Netzarim was bulldozed after a group of youths burned it down.

Articles On Religion Clause Issues Published Recently

This week from SmartCILP:
Sheldon H. Nahmod, The Pledge As Sacred Political Ritual, 13 Wm. & Mary Bill of Rights Jour. 771-793 (2005).

Michael deHaven Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Act's Exemption For the Religious Use of Wine, 70 Brooklyn Law Rev. 739-888 (2005).

L. Scott Smith, "Religion-Neutral" Jurisprudence: An Examination of Its Meanings and End, 13 Wm. & Mary Bill of Rights Jour. 815-870 (2005).

The Journal of Law and Religion, Vol. 20, Issue 1 has been published. A partial table of contents is available online.

National Days of Prayer and Remembrance Proliferate

National days of prayer and remembrance seem to abound. On Thursday, President Bush issued a Proclamation making September 16, 2005, a National Day of Prayer and Remembrance for the Victims of Hurricane Katrina. The President requested: "I ask that the people of the United States and places of worship mark this National Day of Prayer and Remembrance with memorial services and other appropriate observances. I also encourage all Americans to remember those who have suffered in the disaster by offering prayers and giving their hearts and homes for those who now, more than ever, need our compassion and our support."

Then on Friday, the President issued another Proclamation making September 9 through September 11, 2005 Days of Prayer and Remembrance to honor those killed by terrorism in the attacks of 9-11. The President asked the country to "pay tribute to the memory of those taken from us in the terrorist attacks in New York, in Pennsylvania, and at the Pentagon."

Indiana 10 Commandments OK'd

An Indiana federal district court judge has decided that a Ten Commandments monument can remain on the Gibson County, Indiana courthouse lawn, according to a report in today's Fort Wayne Journal Gazette. This reverses a ruling the judge made in January before the US Supreme Court set down standards for Ten Commandments monuments on public property.

Native American Prisoner Wins Nominal Damages

Today the Arkansas Democrat Gazette reported on a recommended decision by a federal district court magistrate in Fayetteville. She concluded that Benton County violated a former inmate’s rights under the First Amendment and RLUIPA when it banned his American Indian "prayer feather" from the county jail. The magistrate found that the denial substantially burdened Billy Joe Wolf, Jr.'s religious exercise. Wolf testified that he needed the feather to communicate with the "Great Spirit." Officials claimed that the feather could be used as a weapon, but Magistrate Beverly Stites Jones said that inmates are allowed to have pencils, toothbrushes and other items that are as potentially dangerous. The Magistrate recommended that the county pay Wolf nominal damages of $1.

Hawaiian Natives File Emergency Appeal On Burial Items

The Honolulu Star-Bulletin today reports that a native Hawaiian group has filed an emergency appeal to the US Ninth Circuit Court of Appeals after a federal district court judge in Hawaii ordered the group to return burial items so that 14 federally recognized native Hawaiian claimants could be consulted on what to do with the items. The group, Hui Malama I Na Kupuna 'O Hawaii Nei, reburied the items in 2000 to honor the wishes of kupuna (ancestors). In an affidavit supporting their appeal, a founder of the group said: "Specifically, it would be an extreme hewa (wrong) for me or any other Hui Malama member, if ordered, to take part in any effort to enter the Kawaihae burial cave, with two to three known caves, to remove the 83 moepu, as they belong to the kupuna buried therein," and that would harm "the integrity of the afterlife of these kupuna." It "amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama has also said it does not want to return the items because it would be handing them over to the Bishop Museum that "acted as a fence for the original grave robbers."

Court TV Excluded From Intelligent Design Trial

A Pennsylvania federal district court has refused the request by Court TV to televise live the proceedings in the suit against the Dover Area School District challenging its teaching of intelligent design. The case denying the request is Kitzmiller v. Dover Area School Dist., 2005 U.S. Dist. LEXIS 19295 (MD Pa., Sept. 7, 2005).