Friday, September 30, 2005
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."
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.
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.
Thursday, September 29, 2005
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.
Wednesday, September 28, 2005
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.
Tuesday, September 27, 2005
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.
Monday, September 26, 2005
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.
Sunday, September 25, 2005
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.
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.
Saturday, September 24, 2005
Land is also president of the Southern Baptist Ethics & Religious Liberty Commission.
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....
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."
Friday, September 23, 2005
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.
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.)
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).
Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming in Stanford Law & Policy Review. (Abstract)
Thursday, September 22, 2005
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."
Wednesday, September 21, 2005
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.
Tuesday, September 20, 2005
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.
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.
Monday, September 19, 2005
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.
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?"
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.
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.
Sunday, September 18, 2005
Saturday, September 17, 2005
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.
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.
Friday, September 16, 2005
U.S. Attorney General Alberto Gonzales issued the following statement:
Also, late Thursday, the U.S. Senate voted to condemn the court ruling (S. Res. 243), according to a report by the Associated Press.
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.
Meanwhile, the Knights of Columbus, one of the defendants in the case, announced that it planned an immediate appeal.
Thursday, September 15, 2005
[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.
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.
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."
Wednesday, September 14, 2005
Cornell University Professor Bernadette A. Meyler, The Equal Protection of Free Exercise: Two Approaches and their History .
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.
UPDATE: Here is the full opinion inthe case, Card v City of Everett.
Tuesday, September 13, 2005
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.
Monday, September 12, 2005
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.
Sunday, September 11, 2005
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."
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.
Saturday, September 10, 2005
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.
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."