Fire Company's Role In Transporting Virgin Mary Statue Criticized

Americans United for Separation of Church and State has written the Jackson Mills, New Jersey Fire Company complaining of its role in transporting a 9-foot tall statue of the Virgin Mary between area churches. AU says that the fire department's activities create an "unmistakable message" of governmental endorsement of religion, particularly of the Catholic faith. (Text of Sept. 26 Letter). The tour of the statue around New York, in commemoration of the anniversary of 9-11, is sponsored by the Ohio-based Our Lady of America Center. According to the AU Release:

In New York, the firefighters, dressed in their official uniforms, carried the statue into the Church of St. Peter and helped install it near the altar. In Howell, the firefighters transported the statue to St. Veronica’s Roman Catholic Church and used a fire truck, with lights flashing and sirens blaring, as part of a processional that culminated in the parking lot of the church.

The motorcade also included fire trucks from nearby Jackson Township and police vehicles. The firefighters then joined members of the Knights of Columbus in carrying the statue into the church, and the event concluded with a special mass.

Rastafarian High Schooler Disciplined For Violating Dress Code

In the small town of Leakey, Texas, high school student Ben Daley—a former Baptist who became a Rastafarian—is in conflict with his high school that insists he cut his hair in order to comply with the school’s dress code. Daley—who says his religious beliefs require long hair-- is being isolated from the rest of his classmates in an alternative program until he complies with the school’s demand. Internet Broadcasting reports that school superintendent Fred McNeil says he needs support from the school board before he can grant Daly an exception from the dress code for religious reasons. The Leakey Star reports that Daley and his father spoke before the school board earlier this month, asserting Ben’s constitutional rights. Board president Jerry W. Bates says no ruling will be made by the board until next month’s meeting. Meanwhile Ben was prohibited from participating in this month’s Homecoming activities. Ben’s father, John Daley, has contacted a San Antonio TV station and the ACLU for assistance.

Hawaii Supreme Court Rejects Free Exercise Defense In Marijuana Case

In State v. Sunderland, (HI Sup. Ct., Sept. 21, 2007), the Hawaii Supreme Court held that the First Amendment's Free Exercise clause is not a viable defense to a prosecution under state law for illegal possession of marijuana. The court also found that defendant Joseph Sunderland failed to preserve for appeal his argument that use of marijuana for religious purposes in his own home is protected by his right to privacy. Three justices dissented on this point, but, after reaching the merits of the privacy argument, only one of those three concluded that Sunderland's defense should prevail. (Text of dissents 1, 2, 3).

KY County Removes 10 Commandments Display After Adverse Court Decision

The AP reports that last Wednesday, Garrard County, Kentucky officials took down a Ten Commandments display from the walls of the Fiscal Court. The action follows the decision earlier this month in American Civil Liberties Union of Kentucky v. Garrard County, Kentucky, 2007 U.S. Dist. LEXIS 70711 (ED KY, Sept. 5, 2007) in which a federal court suggested that the display of the 10 Commandments along with other historical documents violates the Establishment Clause. It found "sufficient evidence of the county's improper religious purpose in the extended history and evolution of the ... display" to deny defendant's motion for summary judgment. Summarizing the issue in the case, the court asked: "If a county gets it wrong in displaying the Ten Commandments, what does it then take to get it 'right' such that it passes constitutional muster?" (See prior related posting.)

Facial Challenge Rejected To School's Limits On Handouts

A Texas federal district court has rejected a facial challenge to the policy of the Katy (TX) Independent School District that restricts student distribution of non-school materials on school premises. In Pounds v. Katy Independent School District, 2007 U.S. Dist. LEXIS 70505 (SD TX, Sept. 24, 2007), plaintiffs claimed that teachers and the principal at Pattison Elementary School prevented children from distributing literature with a Christian message at school. The court upheld the school’s policy that requires advance approval, subject to specific content-neutral and viewpoint-neutral guidelines, for children to distribute more than ten copies of non-school material. Plaintiffs’ "as applied" challenge to the school regulations remains to be litigated

U.S. House Calls for Religious Accommodation By Mock Trial Group

Last Tuesday, the U.S. House of Representatives passed H. Res. 25, a resolution calling on the Board of Directors of the National High School Mock Trial Championship to accommodate students of all religious faiths. At issue is whether the normal Friday-Saturday schedule for the competition will be modified to permit the team from Torah Academy of Bergen County of Teaneck, New Jersey to participate without violating the Jewish Sabbath. Accommodation was made for them in the 2005 competition, but organizers voted to refuse accommodations in the future. This led the North Carolina Academy of Trial Lawyers to withdraw from participation in protest. The House resolution says "the decision of the Board of Directors … to refuse any future accommodations for students who observe their Sabbath on Friday and/or Saturday adversely and wrongly impacts observant Jewish, Muslim, and Seventh-Day Adventist students … [and] is inconsistent with the spirit of freedom of religion or equal protection."

City Street Fair Program Drawing Offends Christians

Christian groups are complaining about the drawing on the cover of the official program guide for San Francisco’s September 30th Folsom Street Fair, according to CNS News. The festival is funded in part by the city’s Grants for the Arts program. The controversial cover features a poster apparently based on Leonardo Da Vinci's painting of "The Last Supper". In this version, however, Jesus and his apostles are replaced with leather-clad men and women. On the supper table are bondage sex toys. House Speaker Nancy Pelosi, in whose district the festival will be held, said that the drawing was protected by the First Amendment and that she did not believe that Christianity had been harmed by the drawing.

Faith-Based Groups Get Increasing Share of Substance Abuse Voucher Funds

The Roundtable on Religion & Social Welfare Policy reported last week on the increasing participation by religious organizations in offering substance abuse treatment funded by federal government vouchers. A recent report by the Department of Health & Human Services reveals that in the Access to Recovery voucher program, 31% of clinical treatment services and 22% of recovery support services have been furnished by faith-based organizations. According to The Roundtable, critics have complained that many of the faith-based programs funded by ATR do not meet state licensing requirements, and are permitted to use religiously-based materials in treatment programs. [Thanks to Blog from the Capital for the lead.]

Senate Passes Hate Crimes Expansion Over Objections of Christian Groups

The U.S. Senate on Thursday passed the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, adding it as an amendment to the 2008 National Defense Authorization Act. The Senate invoked cloture on the amendment by a vote of 60-39, and then passed the amendment by voice vote. The House has already passed the much-debated hate crimes bill as a stand-alone piece of legislation. Friday’s Washington Post described the bill: "the definition of a hate crime would expand to include gender, sexual orientation, gender identity and disability. Local law enforcement officials would be allowed to apply for federal grants to solve such crimes, and federal agents would be given broader authority to assist state and local police. More stringent federal sentencing guidelines would also be instituted."

Conservative Christian groups strongly criticized the Senate’s action. Tony Perkins, president of the Family Research Council, said: "preserving equal justice under the law is more important than scoring points with advocates of homosexual behavior. All violent crimes are hate crimes, and every victim is equally important…. Congress should represent all Americans, not give special protections for some." (Christian Post). In the past, some Christian groups have argued that the bill interferes with their right to preach against homosexual behavior. At a press briefing following the Senate’s action, White House press secretary Dana Perino reiterated the White House’s opposition to the hate crimes bill, but stopped short of repeating previous promises by the President to veto the bill. (See prior posting.)

Court Will Decide Part of Buddhist Temple's Claim Against Parent Body

Jodo Shu Betsuin, a Buddhist Temple, was expelled from the Jodo Shu Buddhist sect by the umbrella organization that oversees the sect in North America. The expulsion resulted from an ongoing dispute over who would be the religious leaders of the Temple. After the expulsion, the umbrella organization prohibited the Temple from using its former property. The Temple sued for damages, claiming it was wrongfully evicted, seeking return of furnishings, religious objects and computers in the Temple, and seeking an order dissolving its oral partnership with the umbrella group. In Jodo Shu Betsuin v. Jodoshu North American Buddhist Missions, (Ct App. CA, Sept. 25, 2007), a California Court of Appeals permitted plaintiff to move to trial on two of its three claims.

The court held that adjudicating the eviction claim would unconstitutionally involve the court in determining an ecclesiastical issue—whether the disaffiliation pronouncement was properly reached: "The expulsion resulted from a dispute involving religious leadership. The religious leaders in question had been appointed by Jodo Shu leaders in Japan. The disaffiliation decision was confirmed at the highest levels of the hierarchical religious organization in Japan. The disaffiliation decision necessarily barred plaintiff from use of the temple property…." However the court held that the claims for conversion and partnership dissolution could probably be adjudicated without considering the propriety of the umbrella group’s disaffiliation order. Those claims, it held, created issues that should to go to trial.

Dissenting in part, Judge Mosk said: "If the lease is such that the plaintiff could not be evicted for doctrinal disputes or issues, then a court could determine that there was a wrongful eviction without addressing internal religious matters on the disaffiliation. Thus far, defendants' defense is not justification for the eviction, but rather that there was no valid lease."

Bureau of Prisons Backs Off Prison Chapel Library Project

Under pressure from religious and civil liberties groups, as well as from the American Library Association, last Wednesday the U.S. Bureau of prisons announced that it would abandon its attempt to create lists of acceptable books on religious topics for prison chapel libraries. The New York Times reported that in an e-mail, the Bureau announced that it would: "begin immediately to return to chapel libraries materials that were removed in June 2007, with the exception of any publications that have been found to be inappropriate, such as material that could be radicalizing or incite violence. The review of all materials in chapel libraries will be completed by the end of January 2008." (See prior related posting.) [Thanks to Melissa Rogers for the lead.]

Prof Fired For Remarks About Bible Story and Reaction to Student Debate

An adjunct professor at Southwestern Community College in Red Oak, Iowa claims he was terminated last Thursday because of remarks he made about the Bible in class two days earlier. According to the AP, Steve Bitterman says he was fired because he told students that the Biblical story of Adam and Eve is a fairy tale and should not be interpreted literally. However students say they complained as much about his brash style. One student left class crying after Bitterman, in the heat of the debate on the Bible, told her to "pop a Prozac." That student, Kristen Fry, said: "I talked to a lawyer and was told that what he was doing was illegal. He was not allowed to be derogatory toward me for being a Christian. I told my adviser I would sue if I had to." [Thanks to Matthew Caplan for the lead.]

More Prisoner Cases-- Diets, Runestones and Prejudicial Trial Statements

In Nelson v. Miller, 2007 U.S. Dist. LEXIS 69578 (SD IL, Sept. 20, 2007), a federal Magistrate Judge refused to dismiss a suit brought by a prisoner claiming that the prison chaplain would not allow him to receive a vegan diet for religious reasons, even though other prisoners could do so. Plaintiff is a Roman Catholic who also follows the Rule of St. Benedict which forbids eating the flesh of any four-legged animal.

In Keen v. Noble, 2007 U.S. Dist. LEXIS 69629 (ED CA, Sept. 20, 2007), a California federal district court refused to dismiss a federal prisoner's complaint that his free exercise rights were violated when prison authorities refused to provide him with runestones for his Asatru religious practices. However the court agreed with a Magistrate's recommendation to dismiss on qualified immunity grounds plaintiff's complaint that he was denied a hof. The court also held that RFRA does not authorize the award of monetary damages.

In Shabazz v. Martin, 2007 U.S. Dist. LEXIS 70342 (ED MI, Sept. 24, 2007), a Michigan federal district court denied plaintiff prisoner a new trial. Plaintiff had claimed that his defense counsel had made prejudicial comments during trial when, in questioning a witness, he referred to Plaintiff and other leaders of the Nation of Islam as "clerics" and "imams". The court rejected plaintiff's argument that this gave the jury a false impression that his religion was connected with the Sunni or Shiite doctrines in the Middle East.

In Henderson v. Virginia, 2007 U.S. Dist. LEXIS 70207 (WD VA, Sept. 21, 2007),a Virginia federal district court rejected a prisoner's claim that he was denied participation in the Ramadan fast as retaliation for "a verbal altercation" he had with prison officers. The court found that plaintiff did not show intentional conduct by defendants, did not show a retaliatory motive, and that in fact he was able to fast by saving food from his other meals.

In Conyers v. Abitz, 2007 U.S. Dist. LEXIS 70322 (ED WI, Sept. 21, 2007), a Muslim inmate was refused participation in the program that gave late meals during Ramadan because he missed the sign-up deadline. the court held that genuine issues of fact exist as to whether the deadline applied to this inmate, whether he had adequate notice of the deadline and whether the prison had a sufficient penological justification to impose the deadline.

Chicago Dentist Charged With Imposing Scientology On Employees

The EEOC has filed religious discrimination charges against a Chicago dentist, according to WBBM News. The suit claims that dentist James Orrington required ten employees to attend Scientology seminars and watch Scientology videos in order to retain their jobs. Before Orrington would give employees their checks, he demanded they write or recite Scientology formulas to help move them to a higher state of mind. The employees also allege sexual harassment.

Missionary's Bias Claim Dismissed Under Ministerial Exception Rule

A missionary has lost her racial and sexual discrimination suit against her former employer, Africa Inland Mission International, Inc. ("AIM"), challenging her termination in Namibia. In  its decision, 2007 U.S. Dist. LEXIS 70084 (D DC, Sept. 24, 2007), the federal district court for the District of Columbia applied the "ministerial exception" rule to dismiss plaintiff's claim that AIM wanted to turn the property where her home for abused and neglected children was located into a bead and breakfast for Whites. AIM said that plaintiff had been charged with abuse of children and improper sexual behavior. The court said that "Determining whether AIM's termination of [plaintiff] fell within ... contractually-permitted parameters--or whether ... [it] was motivated by other concerns--would involve inquiring into 'a core matter of ecclesiastical self-governance not subject to interference by a state'." The court also rejected defamation, breach of trust, conversion and unjust enrichment claims by plaintiff. [Note: This posting has been modified to eliminate the name of the plaintiff at plaintiff's request.]

Israeli Zionist Rabbis Threaten Split Over Sabbatical Farming Rules

In Israel, disagreements among Orthodox rabbis on whether to recognize a legal loophole that permits Jewish farmers to continue to grow crops on their land during the current Sabbatical year threatens to split the official Chief Rabbinate. Yesterday's Jerusalem Post reports that Tzohar, a group of religious Zionist rabbis, has rebelled against the strict interpretation adopted by the Chief Rabbinate and has announced it will set up an alternative supervisory organization to certify foods grown in Israel by Jewish farmers who have technically "sold" their fields to non-Jews for the Sabbatical year. Many authorities recognize this as a way to get around the religious requirement that Jewish fields in Israel must lie fallow for the year. Recognizing the loophole-- known as heter mechira-- is necessary to prevent many farmers from financial ruin. However, Rabbi Moshe Rauchverger, a member of the Chief Rabbinate's governing council, said that Tzohar's move threatened to break the Chief Rabbinate's monopoly on furnishing religious services. He said, "If Tzohar starts providing kosher supervision, what is to stop Reform and Conservative from doing the same?" (See prior related posting.)

Sheriff Violates Establishment Clause By Inviting Christian Speakers

Yesterday in Milwaukee Deputy Sheriffs Association v. Clarke, (ED WI, Sept. 25, 2007), a Wisconsin federal district court held that Milwaukee County Sheriff David A. Clarke Jr. violated the Establishment Clause when he invited the Fellowship of Christian Centurions to make presentations at the Department's leadership conference and at Department "roll calls" at the beginning of each work shift. Two deputies, a Catholic and a Muslim, who were made uncomfortable by the presentations objected and eventually filed suit seeking damages and an injunction. Federal judge Lynn Adelman wrote:

defendants invited representatives of a Christian organization to present a proselytizing Christian message to deputies at meetings held at the workplace during working hours, which deputies were required to attend, and conveyed a message of endorsement of the presentations. The effect of defendants’ actions was to promote religion and to do so coercively.

A hearing has been set for November to discuss remedies. Yesterday's Milwaukee Journal Sentinel reports on the case.

Hillary Clinton Emphasizing Liberal Religious Tradition In Her Campaign

An article in yesterday's Washington Post explores Hillary Clinton's use of religion in her campaign for the presidential nomination. It points out that Clinton's outreach to religious voters that have been alienated from the Democratic party combines moralism with her social liberalism. It comments: "In a nation obsessed by the influence of religious conservatives, it is easy to forget that liberal Protestants were once the dominant cultural influence in America."

Today Is "See You at the Pole" Event At Schools

CBN News reports that this morning around the country school students are taking part in before-school prayer at the annual See You at the Pole event. Held on the the fourth Wednesday of every September, organizers describe SYATP as "a student-initiated, student organized, and student-led event. That means this is all about students meeting at their school flagpole to pray—for their school, friends teachers, government, and their nation." The National Network of Youth Ministries coordinates the event. (SYATP website). Last year about 2 million students at over 50,000 schools participated.

Former FLDS Leader Jeffs Convicted Of Being Rape Accomplice

A Washington County, Utah state court jury today convicted Warren Jeffs, former head of the polygamist Fundamentalist Church of Latter Day Saints, of being an accomplice to the rape of a 14 year old girl who was pressured by Jeffs to enter into a marriage with her 19-year old cousin. The New York Times reports that "the verdict ... was a vindication of the prosecution’s argument — which some experts had thought might be hard to accept — that orchestrating a marriage of a young girl under duress made Mr. Jeffs culpable even though he was not present when the rape occurred." Prosecutors argued that Jeffs knew that the marriage would lead to non-consensual sexual relationships.

The Los Angeles Times last week filled out the details: "Jeffs pressured the girl into marriage, then refused to free her when she complained that her husband was touching her in ways she did not like." Jeffs' attorney, Walter F. Bugden Jr., had argued: "The state can say Warren Steed Jeffs is on trial, but it's his . . . church, his religious beliefs that is on trial here, dressed up as a crime called rape." He argued that the state should have charged Jeffs only with officiating at an unlawful marriage.

Police Officer Has Partial Win In Attempt To Wear Cross Lapel Pin On his Uniform

Risk v. Burgettstown Borough, 2007 U.S. Dist. LEXIS 70048 (WD PA, Sept. 21, 2007) involved religious discrimination and retaliatory discharge claims by a part-time Pennsylvania police officer who was ordered to stop wearing a small cross lapel pin on his uniform. A Pennsylvania federal district court dismissed plaintiff's First amendment speech and religion claims, but permitted plaintiff to move ahead with employment discrimination claims under Title VII of the 1964 Civil Rights Act and the PHRA, Pennsylvania's comparable anti-discrimination law.

In Compromise, Israel Appoints 19 New Rabbinic Court Judges

YNet News reports that after four years of political maneuvering and litigation, 19 new judges have been appointed by the Justice Department to Israel's religious court. The appointees were chosen by a special committee set up by Justice Minister Daniel Friedmann. A compromise has gotten 5 of the 19 new judges to come from the national religious sector, instead of all appointees being strictly Orthodox. Seven of the 15 Orthodox appointees are Sephardic Jews. Women's groups were still unhappy with the appointments, saying they merely solidify the hold of the Orthodox community which advocates patriarchal rules regarding divorce. (See prior related posting.) Haaretz also reports on the appointments.

Plaintiff Suing Military Is Being Harassed

The Navy Times today reports that Spc. Jeremy Hall who recently filed a lawsuit against the military claiming he was threatened by an Army major for holding a meeting of non-Christians and atheists in Iraq now says that he is personally being harassed. E-mails from Hall to Mikey Weinstein, founder of the Military Religious Freedom Foundation, say that Hall has been threatened on blogs with being killed by friendly fire for filing the lawsuit. Meanwhile, Lt. Col. James Hutton, a spokesman for the U.S.-led multinational force in Iraq, said that the Major alleged to have been involved in the incident leading to Hall's lawsuit-- Paul Welbourne-- cannot be located by the Army.

UPDATE: Truthout reports that Military Religious Freedom Foundation researchers have identified the Major at the center of Hall's lawsuit. His correct name is Freddy J. Welborn. He was found through his MySpace page. The complaint in the lawsuit will be amended and refiled to reflect the correct name.

Connecticut City Will Lend Textbooks To Non-Public Schools

On Monday, Manchester, Connecticut's Board of Education voted 7-2 to spend $50,000 on a program to lend textbooks to non-public schools. Today's Journal Inquirer reports that the issue has been discussed for more than a year. Only books currently in use in public schools will be available for loan, although state law permits a broader list to be made available. Board member Steven "Moose" Edwards said that nonpublic schools already receive over $700,000 per year in assistance for transportation, food services and social workers.

School's Decision To Exclude Religious Music From Graduation Upheld

Last week in Nurre v. Whitehead, 2007 U.S. Dist. LEXIS 70049 (WD WA, Sept. 20, 2007), a Washington federal district court rejected a complaint by a student member of a high school wind ensemble that his constitutional rights were violated when school officials rejected the Ensemble's decision to play Franz Biebl's instrumental arrangement of "Ave Maria" at the 2006 Jackson High School graduation ceremony in Everett, Washington. Officials decided that all religious music should be kept out of graduation. The court rejected plaintiff's First Amendment speech claim, as well as her Establishment Clause and Equal Protection claims. The court held that the Ensemble's performance of "Ave Maria" at graduation would have borne the imprimatur of the school, and the state therefore had an interest in preventing possible Establishment Clause problems that would arise if the musical piece had been permitted.

UPDATE: Here is the full opinion in a non-proprietary database, thanks to Alliance Alert. And here is a recording of Biebl's version of the hymn via YouTube.

California Church Keeps Exempt Status; Questions IRS Conclusions

All Saints Episcopal Church in Pasadena, California earlier this month received a letter from the Internal Revenue Service informing it that its non-profit status would be continued. The letter (full text) said, however, that a 2004 sermon constituted improper interference in a Presidential campaign. The letter said that this appears to be a one-time occurrence and that the Church now has policies in place to prevent future problems. According to Episcopal News Service yesterday, parish leadership has asked the Treasury Inspector General for Tax Administration to furnish an explanation of why the sermon was found to be a problem and also to look into allegations that IRS officials may have breached the Church's privacy rights in conversations with high Justice Department officials. The Church is concerned that the IRS exam may have been triggered by partisan political considerations. (See prior related posting.)

A Flood of New Scholarly Publications In Law and Religion

From SSRN:

• Ali L. Khan, Advocacy Under Islam and Common Law, (August 2007).
  
• John Witte, Go Ye, Therefore, and Make Disciples of All Nations': Proselytism in the New World Order, (2007).


• John Witte, Rights, Resistance, and Revolution: The Protestant Foundations of Rights and Revolution, (2007).


• Edward A. Hartnett, Catholic Judges and Cooperation in Sin, (University of St. Thomas Law Journal, Vol. 4, No. 2, 2006).


• Charles J. Reid, Children and the Right to Life in the Canon Law and the Magisterium of the Catholic Church: 1878 to the Present, BEST LOVE OF THE CHILD, Timothy Jackson, (ed.), 2008.


• Charles J. Reid, The Rights of Children in Medieval Canon Law, (U. of St. Thomas Legal Studies Research Paper No. 07-34, 2007).


• Marie Ashe, Beyond Nomos and Narrative: Unconverted Antinomianism in the Work of Susan Howe, (Yale Journal of Law & Feminism, Vol. 18, No. 1, 2006).


• Peter Radan, From Dayton to Dover: The Legacy of the Scopes Trial, (Macquarie Law Working Paper No. 2007-6, September, 2007).

From SmartCILP:

• Mark Strasser, Establishing the Pledge: On Coercion, Endorsement, and the Marsh Wild Card, 40 Indiana Law Review 529-583 (2007).


• Stephen E. Young & Alison Shea, Separating State From Church: A Research Guide to the Law of the Vatican City State, 99 Law Library Journal 589-610 (2007).


• Program on Law and State Government Fellowship Symposium: From the State House to the Schoolhouse: Religious Expression in the Public Sphere. Introduction by Cynthia A. Baker; articles by Kevin C. McDowell and Luke Meier. 40 Indiana Law Review 491-528 (2007).

New book:

• Alan Dershowitz, Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence, (John Wiley and Sons, June 2007), reviewed in the Jewish Standard.

Indianapolis Airport Foot Washing Sink Creates Religious Controversy

In Indianapolis, Indiana, International Airport officials are proposing to install a foot-washing sink that would be used primarily by Muslims before prayer. Yesterday The Indy Channel reported that Rev. Jerry Hillenburg of Indianapolis' Hope Baptist Church has raised a biblical and constitutional challenge to the proposal. He argues that the proposal involves use of tax funds to promote one religion. Airport officials say the issue is one of safety and health. Over 100 Muslim taxi drivers currently use a traditional sink at the airport, creating problems by leaving the floor wet.

Russian Schools Increasingly Teaching Religion

Yesterday's New York Times reports on the increasing introduction of religion into the curriculum of schools in Russia. Recently 10 prominent Russian scientists wrote President Vladimir Putin protesting the "growing clericalization" of Russian society. Proponents, however, say that children need to know about Russian Orthodoxy in order to appreciate Russia's arts, literature, heritage and history.

Recent Prisoner Free Exercise Cases

Randolph v. City of New York Department of Corrections, 2007 U.S. Dist. LEXIS 68104 (SDNY, Sept. 7, 2007), involves claims regarding the availability of Halal food for prisoners at New York's Rikers Island correctional facility. A federal magistrate judge recommended dismissal of a claim that the prison commissary violated plaintiff's free exercise rights by selling products containing pork without identify those contents to prisoners. However he recommended that plaintiff be allowed to proceed with claims for an injunction and declaratory relief regarding the prison's alleged practice of failing to follow proper practices in serving Halal meals, such as washing Halal and non-Halal trays together.

In Travillion v. Leon, 2007 U.S. App. LEXIS 22203 (3rd Cir., Sept. 14, 2007), the U.S. 3rd Circuit Court of Appeals held that a Protestant plaintiff's Establishment Clause and Equal Protection rights were not violated when a state jail served all prisoners vegetarian meals during Lent, even though their religious beliefs did not require them to abstain from meat.

In Portune v. Ornoski, 2007 U.S. Dist. LEXIS 68534 (ND CA, Sept. 6, 2007), a California federal district court permitted a prisoner to proceed with a habeas corpus action alleging in part that his right to the free exercise of religion was infringed when his parole was denied because he refused to attend a religious-based Narcotics Anonymous program.

In Saif'ullah v. Sisto, 2007 U.S. Dist. LEXIS 68703 (ED CA, Sept. 5, 2007), a California federal district court permitted to proceed with their First Amendment and RLUIPA claims that they were offered only a vegetarian diet instead of a diet that included Halal meat. However the court found that they failed to state a claim when they alleged that they were prevented from offering their evening prayers in the prison's day room, and instead had to pray individually in their prison dorms.

In Dupree v. Laster, 2007 U.S. Dist. LEXIS 69288 (SD IL, Sept. 19, 2007), a federal district court adopted a Magistrate Judge's Report and Recommendation, rejecting prison officials' arguments that their actions dealing with Plaintiff's behavior during religious services while incarcerated were legitimate, and that RLUIPA does not authorize individual capacity claims for monetary damages

In Jackson v. Epps, 2007 U.S. Dist. LEXIS 69017 (ND MS, Sept. 18, 2007), a Mississippi federal district court dismissed a prisoner's complaint that he was not permitted to attend Muslim religious services, finding that plaintiff had not filled out the required prison form to designate his religion as Islam.

Wisconsin Modifies Murder Remembrance Day Program To Avoid Church-State Issue

September 25 is the first National Day of Remembrance for Murder Victims, sponsored by the National Center for Victims of Crime and the National Organization of Parents of Murdered Children. (Kansas City Star Crime Scene blog.) Ceremonies are being planned around the country. In Wisconsin, the program planned by the state's Department of Justice was modified to eliminate a hymn and a closing prayer, after objections from the Freedom From Religion Foundation.

Of concern to FFRF were the lyrics to This Too Shall Pass which arguably suggest that the murders being commemorated were "part of a deity's plan". FFRF argued that: "Grieving and vulnerable families should not be proselytized by state government or be told how or what they are expected to believe," nor should the state "be selecting which minister, which denomination or which religion should confer blessings...." The Capital Times reported yesterday that Department of Justice spokesman Kevin St. John said: "Rather than create the unintentional appearance that the state was endorsing religion or a particular creed, the department amended the program to exclude those parts."

Two Courts Reject Free Exercise Defenses To Liability For Clergy Sexual Abuse

Two recent cases have rejected First Amendment defenses by religious organizations to claims against them growing our of clergy sexual abuse charges. In Mary Doe SD v. Salvation Army, 2007 U.S. Dist. LEXIS 69728 (ED MO, Sept. 20, 2007), plaintiff sued the Salvation Army for sexual abuse by one of its Captains who sexually abused her when she was a teenage volunteer camp counsellor at a Salvation Army summer day camp. The Salvation Army raised First Amendment defenses to claims that it negligently failed to protect plaintiff and to breach of fiduciary duty claims. A Missouri federal district court rejected these, saying: "Certainly ... Defendant does not contend that protecting children from a child abuser, investigating child abusers, or supervising employees violate any doctrine or practice of the Salvation Army." The court also rejected Establishment Clause defenses.

In Young v. Gelineau, (RI Super., Sept. 20, 2007), a Rhode Island trial court rejected Free Exercise defenses raised by the Catholic hierarchy to claims against it growing out of plaintiff's sexual molestation by a priest. Christopher Young claimed that the Church is liable for permitting Priest John Petrocelli to have contact with him and other minors after the Church knew that Petrocelli was a child molester. The court rejected the Church's First Amendment defenses, holding that the court's inquiry into the claims "will merely constitute the application of a neutral law and will not impose upon or significantly restrict the Hierarchy Defendants’ religious beliefs or practices." The court went on to reject the argument that since hiring, retention and supervision of a priest is based on Canon law, the suit should be dismissed under the Church Autonomy doctrine.

Bureau of Prison Chapel Library Lists Published; Project Is Widely Criticized

The New York Times reported yesterday that the federal Bureau of Prisons is under pressure from all sides to change its policy of restricting the books that can be in prison chapel libraries. (See prior postings 1, 2, 3, 4.) The Republican Study Committee, a caucus of conservative House of Representatives members, wrote Bureau’s director Harley G. Lappin on Wednesday, saying, "We must ensure that in America the federal government is not the undue arbiter of what may or may not be read by our citizens." (Full text of letter.) However the Bureau of Prisons said it is not reconsidering its decision that stemmed from a 2004 Justice Department Inspector General's report warning that radical books that incite violence and hate may be on chapel library shelves.

Interestingly, along with this article, the Times has posted the list of acceptable books for each of 19 different religious groups that the Bureau of Prisons has placed on its Standardized Chapel Library Project lists. The Bureau took this approach after initial attempts to review every book in chapel libraries became unmanageable. Examination of the book lists is fascinating. The lists contain many audio-visual items as well as books. For some religious groups, the number of permitted items is well over 300, while other lists are much shorter. A list for "Other Religions" for example, contains only two books-- both on Christian Science. The Yoruba list has 76 items, while Messianic (i.e. Messianic Judaism) gets 60. The Catholic and Protestant lists are among the longest. The Jewish list is somewhat shorter with 134 items. Separate lists are furnished for Islam and Nation of Islam.

The Bureau told representatives of Christian and Jewish prison chaplains that a book could be restored to the chapel library if a prisoner requested it and a chaplain reviewed the book and sent a certification to the Bureau in Washington for review. Rabbi Aaron Lipskar, executive director of the Aleph Institute, said it is unrealistic to expect chaplains to have time to review books in this way. [Thanks to Melissa Rogers for the lead.]

Court Says Halloween Decorations Are Secular Symbols

Rivera-Alicea v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905 (D PR, Sept. 20, 2007), involves claims by a secretary in Puerto Rico's Department of Justice that she was retaliated against for complaining that "pagan" office Halloween decorations offended her Pentecostal Christian religious beliefs. In rejecting plaintiff's Establishment Clause claim, the Puerto Rico federal district court held:

Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols. Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.

The court also rejected plaintiff's Free Exercise claim and her claim under various provisions of Puerto Rican law. However the court permitted plaintiff to move ahead with her claim of retaliation under Title VII of the 1964 Civil Rights Act based on her allegations that various actions were taken against her because she filed a complaint with the EEOC over the Halloween decorations.

3rd Circuit Rejects Free Exercise Challenge To Giving Minor "Morning After" Pill

On Friday, the U.S. Third Circuit Court of Appeals rejected free exercise and parental rights claims against the City of Philadelphia's Health Department in a suit alleging that a health center acted unconstitutionally when it furnished a 16-year old girl emergency contraception without first notifying her parents or encouraging her to consult with them. In Anspach v. City of Philadelphia, (3d Cir., Sept. 21, 2007), the court rejected both parental rights and First Amendment claims. The suit, brought by both the parents and the girl, argued that the health center misled Melissa Anspach when a staffer told her that the morning-after pill would prevent her from getting pregnant, without informing her that it could prevent the implantation of a fertilized egg. Melissa's religious beliefs saw this as abortion.

The court rejected Melissa's free exercise claim, finding that she was not coerced by the government into taking the pills and that she does not allege she ever informed the clinic staff about her religious beliefs. It also rejected a free exercise claim by Melissa's parents, holding that the Constitution does not require the government to ensure that children abide by their parents' religious beliefs. Much of the court's 47-page opinion focuses on-- and rejects-- substantive due process claims that parental rights were infringed. The Baltimore Sun's news blog reported on the case on Friday.

Pennsylvaina Suit Claims Religious Discrimination In Marriage License Law

Represented by the ACLU, a Pennsylvania couple has filed a religious discrimination suit against the Allegheny County Register of Wills who refused to issue them a marriage license that would allow them to marry without a third party officiating. Yesterday's Pittsburgh Tribune-Review and today's Wilkes Barre Times Leader report the couple was told that only members of the Quaker and Baha'i faiths-- traditional religions that have no clergy-- are permitted to self-officiate. Pennsylvania law (23 Pa. Consol. Laws Sec. 1503(b)) provides that a marriage ceremony can be conducted by members of a religion without clergy "according to the rules and customs" of the religious group. Mary Jo Knelly and David Huggins-Daines, who want to have a ceremony similar to that of the Quakers, but secular in content, say this amounts to preferential treatment of one religion over another. However Register of Wills Solicitor Timothy E. Finnerty wrote them that under Pennsylvania law, "There is no provision for the individuals to officiate at their own marriage." (See prior related posting.)

UPDATE: On Thursday, federal judge Joy Flowers Conti granted a temporary restraining order, requiring Allegheny County to issue a marriage license to Knelly and Huggins-Daines. While the court did not make a final ruling on how Pennsylvania's law should be interpreted, Allegheny County said that in the future it would grant self-uniting marriage licenses without regard to religion. (Pittsburgh Post-Gazette, Sept. 28).

House Passes Bill With Funds Earmarked For Group Promoting Creationism

Yesterday's New Orleans Times-Picayune reports that the House has passed an sent to the Senate an appropriations bill containing a $100,000 earmark for a group promoting creationism to use "to develop a plan to promote better science education." Louisiana Senator David Vitter placed the earmark in the bill to benefit nonprofit Louisiana Family Forum, a group that has taken the lead in the state in promoting "origins science". The report authorized by the earmark will include an evaluation of a 2006 policy change by the Ouachita Parish School Board that permits teachers to introduce alternative theories to evolution in science classes. Two of Vitter's paid 2004 campaign staff are also employees of the Family Forum.

Hospital Chaplain Fired for Objecting To Gideons' Bible Distributions

Jews on First yesterday reported on the forced resignation of hospital chaplain Rev. Kay Myers by Salisbury, Maryland's Peninsula Regional Medical Center after she raised objections to Gideons going room-to-room delivering Christian Bibles to hospital patients. The Bibles contained only the New Testament and the book of Psalms. Not only was Myers, a Presbyterian minister, concerned about keeping the hospital's chaplaincy non-sectarian, but she also feared that giving the Gideons access violated patient privacy under HIPAA. In addition, the hospital's infection control department was concerned that the Bibles might harbor resistant organisms. Hospital CEO Alan Newberry told Myers that as Director of Pastoral Care, she should be taking the lead in placing Bibles in patient rooms.

Israel's Yom Kippur-Based Daylight Savings Time Shows Religious-Secular Split

Today's Chicago Tribune reports that in Israel, decisions about the date on which daylight savings time ends reflects the broader debate over the role of religion in public life. Two years ago, in a compromise bill, Parliament set the end of daylight savings time as the Sunday before Yom Kippur. The move was taken so that sunset-- the time at which observant Jews can break their Yom Kippur fast-- will arrive an hour earlier. Yom Kippur begins this evening, so daylight savings time has ended in Israel-- well ahead of the time that it ends in Europe and the United States. Secular Jews in Israel, however, are complaining because they are deprived of the extra hour of light after work. They say this is an example of how the interests of Israel's religious minority are interfering with the lifestyle of the majority of the population who are secular Israeli Jews.

House Passes Vietnam Human Rights Act

On Tuesday (by a vote of 414-3) the U.S. House of Representatives passed H.R. 3096, the Vietnam Human Rights Act. Among other things, it prohibits any increase in nonhumanitarian foreign aid to Vietnam until the President certifies that various human rights goals have been met. Among these are "substantial progress toward respecting the right to freedom of religion, including the right to participate in religious activities and institutions without interference by or involvement of the Government" and "substantial progress toward releasing all political and religious prisoners". The bill, which now goes to the Senate, also calls for the State Department to submit an annual report on Vietnam's progress in various areas of concern. Vietnam's News Service today published an opinion piece criticizing passage of the bill.

Authorities Prosecuting Promoters of "Corporations Sole" Scams

Today's Arizona Republic reports on efforts of federal and state law enforcement to prosecute promoters of "corporations sole" scams-- the use by individuals for tax evasion purposes of entities intended for church assets. A corporation sole, permitted under the laws of 17 states, is legitimately created by an individual church leader in order to provide an entity to hold church property and funds. A corporation sole does not need to file an income tax return. Promoters have bilked many individuals who have no connection to a church by charging them high fees to set up a corporation sole for their personal assets. The promoters incorrectly tell the individuals that this excuses them from paying income taxes.

China Appoints Vatican-Approved Bishop

In another step toward reconciliation with the Vatican, China's state-controlled Catholic church today appointed as bishop of Beijing a cleric who has the approval of the Vatican. The Associated Press reports that Joseph Li Shan, in taking the traditional oath to the Church, also added a promise to "lead all the priests seminarians and nuns of this diocese in adhering to the nation's constitution, maintaining national unification and social stability." (See prior related posting.)

Controversy Over Funding Denial For Christian Concert At University of Arizona

A decision last week by the Student Senate at the University of Arizona has created controversy. The organization refused to fund a Christian concert, already scheduled by Priority Campus Ministries, a student group. The concert, "Overflow", had been funded for the last seven years, but a recent change in the bylaws of the Associated Students of the University of Arizona was applied to deny funding this year. The bylaws now exclude funding for events that exclude some students, involve proselytizing and worship, are expressly political, or are merely for entertainment or commercial benefit. The concert went on with funding from local churches. An editorial in yesterday's Arizona Daily Wildcat reviews the controversy.

Qatar Starting New Moderate Islamic Satellite Channel

Gulf News reported yesterday that Qatar is developing a new Islamic satellite television channel designed to counter the growing number of channels in the Arab world that are promoting Sunni- Shiite conflict. The Organization of the Islamic Countries has approved the project. The new channel will focus on Islam's traditions of unity and tolerance.

Article Explores Trend Toward Ban On Wearing Religious Symbols

IBN carries an interesting lengthy article today on the trend in Western Europe (and to some extent in the U.S.) to ban the wearing of religious symbols-- particularly non-European cultural and religious symbols. The article, titled Ban on Asian symbols: A Westside story of bias? is worth a full read.

State Appeals Court Says Custody Order Burdens Father's Religious Exercise

A Minnesota court of appeals has ordered a lower court to narrow the order it issued in a custody proceeding that prohibited the non-custodial father from discussing "inappropriate" religious topics with his children. In In re the Marriage of: Barbara A. Kinley, (MN Ct. App., Sept. 18, 2007) the court held that while the lower court could issue an order protecting the custodial parent's right to determine her children's religion, here the order impermissibly burdened the father's free exercise of religion. The trial court failed to make findings supporting the restrictions and failed to place limits on their scope and duration. The prohibition on the father's reading of bible stories to the children was not narrowly tailored and the ban on discussing "inappropriate" religious ideas is vague and overbroad.

Christian Pakistani Teenager Cleared of Blasphemy Charges

In Pakistan today, a judge unexpectedly cleared 18-year old Shahid Masih of blasphemy charges. Journal Chretien reports that prosecution witnesses dropped their claims that they had been told that the defendant, a Christian, had torn pages from a book containing Quranic verses.

Quebec Jewish Hockey Player Surrenders Religious Observance To Game Schedules

In the Canadian provice of Quebec this week, just as the government's Consultation Commission on Accommodation Practices Related to Cultural Differences began hearings, Orthodox Jewish hockey player Benjamin Rubin announced that he had agreed to somewhat less accommodation as he begins to play for the Gatineau Olympiques of the Quebec Major Junior Hockey League. Today's Canadian Jewish News reports that Rubin, who has NHL ambitions, played for the Quebec (City) Ramparts last year under an arrangement that excused him from all games on the Jewish Sabbath, as well as Jewish holidays. That arrangement ultimately did not work out well. The Olympiques schedule for this year has over half of the team's game slotted for Friday night or Saturday. Rubin has agreed that he will play in these and will only take off for major Jewish holidays. Rubin's father said that the family had consulted several "esteemed" Orthodox rabbis. While none gave a formal ruling, most did not consider playing hockey a violation of the Sabbath if it is not for pay. Travel for the games however has posed the greater problem, as the Olympiques insists that Rubin travel with the rest of the team.

One 10 Commandments Display Stays, Another Goes, In Kentucky

A Kentucky federal district court this week upheld the constitutionality of a display of the Ten Commandments as part of a "Foundations of American Law and government" display in the Rowan County (KY) Fiscal Courtroom. The "Foundations" display was authorized by the Fiscal Court after the ACLU challenged an earlier posting of the 10 Commandments among 17 other miscellaneous documents. In American Civil Liberties Union of Kentucky v. Rowan County, Kentucky, (ED KY, Sept. 17, 2007), the court concluded that "plaintiffs have failed to show that religion was the county’s predominant purpose in posting the Foundations Display – it may have been a purpose, but it was not the predominant purpose."

Yesterday's Lexington Herald-Leader reported on the decision, and also reported that in a September 5 decision, the same judge found that a Ten Commandments display inthe Garrard County courthouse was unconstitutional. The Ten Commanments were displayed along with other documents linking government and religion. The court found that in this case, "a reasonable person would conclude that the county's display has the effect of endorsing religion."

Third Circuit Finds JCC Entitled To Title VII Religious Exemption

Yesterday, the U.S. 3rd Circuit Court of Appeals, in a 2-1 ruling, issued an important decision interpreting the scope of the religious institutions exemption in the 1964 Civil Rights Act. In LeBoon v. Lancaster Jewish Community Center Association, (3rd Cir., Sept. 19, 2007), an Evangelical Christian bookkeeper who lost her job at a Jewish Community Center claimed that the JCC was not entitled to claim an exemption from religious discrimination claims under Section 702 of the Civil Rights Act (42 USC 2000e-1(a)). She argued that the JCC "lacked financial or administrative ties with a synagogue and its nature and purposes were primarily cultural, not religious." The majority, however, disagreed, finding "the LJCC was entitled to the protection of Section 702 during the period under scrutiny because its structure and purpose were primarily religious."

Judge Rendell, dissenting, argued that "Congress understood § 702(a) to cover only those entities that, unlike the LJCC, are controlled by a religious sect." He said that the majority's approach places the court in the position of analyzing the activities of religiously inclined organizations to determine which are religiously meaningful.

The court unanimously rejected a retaliation claim by the plaintiff, crediting instead the JCC's explanation that LeBoon was terminated because of the financial problems the JCC was experiencing.

Ontario Catholic Schools Debate HPV Vaccine Program

In the Canadian province of Ontario, the government has begun a school-based program of offering the HPV vaccine to girls in grade 8. Now Catholic schools throughout the province are debating whether to permit the programs. The Hamilton Catholic School Board voted on Monday to allow public health officials into the schools. Tuesday's National Post reported that the Conference of Catholic Bishops issued a statement expressing regret that the program was introduced without more study. Their statement said that the decision is ultimately up to parents, but emphasized that HPV can only be contracted through sex, and sex outside marriage carries "profound risks to a young person's spiritual, emotional, moral and physical health." It went on: "Sexual activity is appropriate only within marriage. Outside of marriage, abstinence is not only clearly the choice that leads to spiritual and moral well being, but it is obviously the best protection against risks of disease."

DC Court Orders Members of Congress To Produce Documents On Mt. Soledad Law

The judicial decisions in the Mt. Soledad Cross cases never seem to end, as plaintiffs attempt to show that the Establishment Clause was violated by legislation under which the federal government acquired the war memorial. Plaintiffs have been attempting to gather evidence to show that Congress had a religious purpose in enacting legislation transferring control of the site to the federal government. A California federal district court has issued two decisions refusing to permit plaintiffs to take the depositions of members of Congress and their advisers on the issue of motivation. (See prior postings 1, 2.) Now, however, in Jewish War Veterans of the United States v. Gates, (D DC, Sept. 18, 2007), the D.C. federal district court has issued a 55-page opinion and an order permitting plaintiffs to subpoena some documents from three members of Congress.

The court held that "each category of documents requested has the potential to shed light on at least one of the three Lemon prongs. Foremost among these is legislative purpose." Responding to defendants' claim that production of the documents are shielded by the Constitution's "speech or debate" clause, the court said:

The Members are correct that... informal information gathering in connection with or in aid of a legitimate legislative act is itself protected by the Speech or Debate Clause. Such information gathering may take the form of communications with organizations, constituents, or officials of a coordinate branch. The Members are likewise correct that the Clause prohibits inquiry into an individual legislator's motives for engaging in particular legislative acts. At the same time, JWV is correct that accepting the Members' position on these points does not necessarily shield from production all documents responsive to specifications 3, 5, 7 and 9. Documents that reflect a Member's efforts to persuade Executive Branch officials to use existing statutory authority, for example, must be produced, as must documents that reflect legislative purpose, rather than the motives of individual legislators.

The court left it in part to the defendants to decide which documents must be produced under the principles announced in the court's decision. Today's New York Sun reports on the decision.

Soldier Sues Army Claiming Religious Discrimination

A press release distributed by the Military Religious Freedom Foundation yesterday announced a religious discrimination lawsuit that has been filed against the Department of Defense and an Army Major:

(MRFF) and U.S. Army Specialist Jeremy Hall have filed a lawsuit against Defense Secretary Robert Gates and Major Paul Welborne in U.S. District Court in Kansas City, Kansas citing a pattern of military practices that discriminate against non-Christians in the military. The lawsuit also cites overt government support of private civilian religious organizations and activities.

... In August of this year, Specialist Hall, after receiving permission from a chaplain at Contingency Operations Base Speicher, Iraq, posted flyers around his base announcing a meeting of atheists and other non-Christians.... Army Major Paul Welborne disrupted the meeting and threatened to retaliate against Hall by charging him with violating the Uniform Code of Military Justice and vowed to block Hall's reenlistment in the Army because of Hall’s role in organizing the meeting, a violation of Hall's First Amendment rights under the Constitution.

The complaint charges that Hall, who is based at Ft. Riley, Kansas, has been forced to "submit to a religious test as a qualification to his post as a soldier in the United States Army," a violation of Article VI, Clause 3 of the Constitution.

The International Herald Tribune has also published a report on the lawsuit.

Methodist Pavillion Loses Tax Exemption For Refusing To Host Civil Unions

New Jersey's Commissioner of Environmental Protection has refused to renew the real estate tax exemption for the Ocean Grove Boardwalk Pavilion which is operated by an organization affiliated with the Methodist Church, according to an article yesterday in Edge. The exemption denial came because the Ocean Grove Camp Meeting Association (OGCMA) that owns the Pavilion has refused on religious grounds to make it available for same-sex couples to use for civil union ceremonies. Two lesbian couples have filed a complaint with the state Division of Civil Rights arguing that the Pavilion is a public accommodation subject to the state's non-discrimination laws. The Pavilion is broadly used by the public, but is also used by OGCMA for Sunday worship services and a Youth Ministry program. Last month a federal judge refused to order a halt to the state's civil rights investigation. The real estate tax exemption for the rest of the boardwalk and the beach, both of which are also owned by OCGMA, however were renewed. (See prior related posting.)

Nebraska State Senator Sues God To Protest Frivolous Lawsuits

Ernie Chambers, a Nebraska state senator, has filed a lawsuit in a Douglas County, Nebraska state court naming God as defendant. The suit accuses God of causing, death destruction and terror through floods, earthquakes, hurricanes, tornadoes and plagues. The lawsuit asks for a permanent injunction ordering defendant to cease harmful activities. Chambers says the court has jurisdiction because since Defendant is omnipresent, God is personally present in Douglas County. Chambers filed the suit to protest frivolous litigation, particularly a suit filed recently by Tory Bowen claiming that her free speech rights were violated when a state judge barred words such as "rape" and "victim" in a sexual assault trial. Yesterday both the AP and the Christian Post report on these developments.

UPDATE: On Thursday, the Christian Post reported that a one page document mysteriously appeared on the counter in the clerk's office at the Douglas County Court House. Captioned a "Special Appearance", it argues that Chambers' lawsuit should be dismissed because there was not proper service of a summons on defendant.

Paper Profiles Bush's Orthodox Jewish Attorney General Nominee

Today's Jerusalem Post points out that President George Bush's nominee for U.S. Attorney General, Michael Mukasey, is an Orthodox Jew. If confirmed, Mukasey would be only the second Jewish Attorney General in U.S. history.

Turkey's Prime Minister Wants To Permit Headscarves To Be Worn At Universities

BBC News reports that Turkish Prime Minister Recep Tayyip Erdogan has said, in a Financial Times interview, that he wants to lift Turkey's ban on Muslim women wearing headscarves at state universities. President Abdullah Gul supported Erdogan, saying: "It is much better for [women who are covered] to go to university than to stay home and be isolated from social life." In Turkey, the headscarf has become a symbol of a perceived threat to the country's secular foundations, and was a major issue in the Parliamentary election of Gul as President earlier this year. Military and judicial leaders oppose any changes that would erode Turkey's official secularist rules.

Mukasey Decided Few Religion Cases As Judge

A Lexis search indicates that Michael Mukasey, President Bush's nominee for Attorney General, decided only few cases involving free exercise claims during his 18-year tenure as a federal district judge in New York. The major decision he wrote was in United States v. Rahman, 1994 U.S. Dist. LEXIS 10151 (SDNY, 1994), in which defendant, charged with conspiracy to commit urban terrorism, raised First Amendment objections. Mukasey wrote: "it is the rare offense, particularly the rare conspiracy or aiding and abetting offense, that is committed entirely in pantomime. However, that speech -- even speech that includes reference to religion -- may play a part in the commission of a crime does not insulate such crime from prosecution."

In three cases, Mukasey denied prisoner free exercise claims: Robinson v. Scully, 1990 U.S. Dist. LEXIS 3632 (SDNY, 1990) (removal of prisoner's kufi during search); Prins v. Coughlin, 1995 U.S. Dist. LEXIS 8673 (SDNY, 1995) (Jewish prisoner protests lack of hot kosher food); Salahuddin v. Mead, 2000 U.S. Dist. LEXIS 3932 (SDNY, 2000) (Muslim prisoner denied access to chaplain during prison work program hours).

Candidates' Religious Views Continue As An Issue Among Christian Conservatives

A "Value Voters" debate among Republican presidential candidates, sponsored by several conservative Christian groups, was held yesterday in Ft. Lauderdale, Forida. However, the major Republican contenders did not participate, according to the Florida Sun-Sentinel. Seven of the second-tier candidates did take part: Mike Huckabee, Tom Tancredo, Ron Paul, Sam Brownback, Duncan Hunter, Alan Keyes and businessman John Cox. Among the information that came out at the debate was when several of the candidates first accepted Jesus as their personal savior. WorldNet Daily also reports on the debate.

Meanwhile, the Florence (AL) Times Daily says that Fred Thompson's performance on the campaign trail is causing concern among conservative Christian voters. Thompson has said that he does not belong to a church in his home community in Virginia and does not attend church regularly. He says he attends services when he visits his mother in Tennessee. He also has declared that he will not talk about religion in his campaign.

Pope Comments On Church-State Relations

Catholic World News yesterday reported on remarks made by Pope Benedict XVI as he accepted the credentials of Ireland's new ambassador to the Vatican:

Speaking about the broad question of Church-state relations in a democratic society, Pope Benedict said that the faith "serves all of society by shedding light on the foundation of morality and ethics, and by purifying reason, ensuring that it remains open to the consideration of ultimate truths and draws upon wisdom." In making that contribution, he said, the Church does not threaten the proper authority of the state, but "keeps public debate rational, honest and accountable."

Zenit reprints additional portions of his remarks.

South Korea To Permit Alternative Service For Conscientious Objectors

South Korea's Defense Ministry has announced that for the first time it will permit religious conscientious objectors to perform alternative service. Today's Korea Herald says the government will introduce the option of serving in special care hospitals instead of the army by 2009. Veterans groups say they will oppose the plan, arguing that it will undermine compulsory military service and promote inequality.

California City To Consider Return of Creche To Public Property

The Sonoma (CA) News reports that at this week's City Council meeting, freshman Council member August Sebastiani will propose that the city bring back a creche display to the city's Sonoma Plaza this Christmas season. The Sonoma Valley Ministerial Association previously moved the display to a local church in order to avoid controversy, but Sebastiani says that a poll shows 72% of the people want it returned to public property. City attorney Tom Curry says that in order to meet constitutional requirements, the city must either include the creche as part of a broader holiday display along with secular symbols and religious symbols from various traditions, or permit a private group to set up the creche under a policy that allows anyone to set up a display on a first-come first-served basis regardless of the display's content.

No Religious Discrimination In Denial Based On Religious Arguments

In Boston v. Dawn Unknown, 2007 U.S. Dist. LEXIS 67939 (ED MO, Sept. 13, 2007), a Missouri federal district judge held that St. Louis Fitness Club employees did not engage in religious discrimination when they failed to renew plaintiff's membership in the Club because he had engaged in heated debates about religion with the club's staff.

Creationism Group Using Copyright Law To Silence Critics On YouTube

Although the reports coming in the last few days are sketchy, apparently a group that promotes Creationism as factual science is using the Digital Millennium Copyright Act to silence its critics that post videos on YouTube. The DMCA provides a safe harbor to online service providers who take down content promptly after being notified that it infringes a copyright. (Background). Apparently, unsupportable DMCA notices of infringement are being filed by Creation Science Evangelism against any YouTube video that criticizes its founder, Kent Hovind. (Panda's Thumb, Slashdot). In order to get the videos restored, under the DMCA their producers need to file a counter-notification with YouTube. However, apparently YouTube is closing the accounts of individuals who have DMCA notices filed against them before they get a chance to file their objections. (RichardDawkins.net).

California Supreme Court To Hear Episcopal Church Dispute

Last Thursday, the California Supreme Court voted unanimously to grant review in the Episcopal Church Cases. The lower court (see prior posting) held that it should give deference to the highest adjudicatory authorities of the Episcopal Church, instead of applying neutral property principles to decide whether three break-away congregations or the Episcopal Church USA own the property on which the local churches are located. Virtue Online last week reported extensively on the case.

New Articles, Books and DVD's of Interest

From SSRN:

• John Mikhail, The Free Exercise of Religion: An American Perspective, (chapter in Matthias Mahlmann and Hubert Rottleuthner, eds., Ein neur Kampf der Religionen? Staat, Recht und religiose Toleranz (2007)).


• Haider Ala Hamoudi, The Muezzin's Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, (American Journal of Comparative Law, Vol. 56, No. 2, 2008).


• Margaret F. Brinig, Children's Beliefs and Family Law, (Notre Dame Law School Legal Studies Research Paper Series, Sept. 11, 2007, Forthcoming).


• Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, (Boston College Law Review, Forthcoming).


• Martha Minow, Tolerance in an Age of Terror, (Southern California Interdisciplinary Law Journal, Vol. 16, No. 3, 2007).

From SmartCILP:

• Roger W. Bowen, Exploring the Role of Religion, 53 Loyola Law Review 157-163 (2007).
  
• Catholicism and the Court: The Relevance of Faith Traditions to Jurisprudence. Keynote address by Hon. Diarmuid O'Scannlain; panel articles by Margaret O'Brien Steinfels, Michael J. Gerhardt, Sheldon Goldman, Edward A. Hartnett, Brian Z. Tamanaha, Sanford Levinson, Robert F. Cochran, Jr., Scott C. Idleman and Hon. Joan B. Gottschall. 4 University of St. Thomas Law Journal 157-341 (2006).

Vol. XXII, No.2 of the Journal of Law and Religion (2006-07) has recently been published.

Recent Books:

• Stephen Bates, God's Own Country: Tales from the Bible Belt, (Hodder & Stoughton, July 2007), reviewed by The Guardian.


• Mark Lilla, The Stillborn God: Religion, Politics and the Modern West, (Alfred A. Knopf, 2007), reviewed by the Wall Street Journal and the New York Times.

New DVD:

• Baptist Center for Ethics, Golden-Rule Politics: Reclaiming the Rightful Role of Faith in Politics, (2007), reviewed by The Tennessean.

Pennsylvania Weddings By Clergy Without Congregations Ruled Invalid

Earlier this month, a York County, Pennsylvania judge ruled that Pennsylvania law limits clergy who can perform weddings to those who have a "regularly established church or congregation." (23 Pa. Consol. Stats. 1503). Law.com reported last week on the decision that came in the case of a couple who broke up seven months after their wedding ceremony was performed by a Universal Life Church minister who was ordained online. Apparently the effect of the ruling was to eliminate the need for the couple to obtain a divorce. Philadelphia's NBC10 outlines the implications of the ruling on other couples.

Israeli Rabbinate Fears Conversion Efforts During Sukkot Festivities

In Israel, many celebrations and events are scheduled during the week-long Jewish holiday of Sukkot that begins this year on the evening of September 26. One of these is the annual parade in Jerusalem that attracts thousands of foreign tourists as well as Israelis. According to YNet News (Sept. 12), this year an official committee appointed by the Chief Rabbinate says that Jews should not participate in the parade, or in various Feast of Tabernacle activities planned by International Christian Embassy Jerusalem. The Rabbinate fears that the events will be used by Christian missionaries to attempt to convert Jews. The Jerusalem municipality however issued a statement saying that "participation (in the parade) is planned in advance and approved by the city, whose inspectors wouldn't allow a missionary group or any other political group to attend the parade." Christian Embassy also says that it is not a missionary organization.

Reward Offered For Assassination of Artist Who Drew Offensive Muhammad Cartoon

CBS News reported on Saturday that al Qaeda in Iraq leader Abu Omar al-Baghdadi has offered a $100,000 reward for the assassination of artist Lars Vilks, whose drawing of Muhammad's head on a dog was published in a Swedish newspaper last month. (See prior posting.) Al-Baghdadi said the reward would be increased to $150,000 if Vilks was "slaughtered like a lamb". He also offered a $50,000 reward for the killing of the editor of Nerikes Allehanda, the paper that printed Vilks' drawing. Al-Baghdadi also threatened strikes on Swedish companies if the "crusader state of Sweden" did not apologize. Swedish Prime Minister Fredrik Reinfeldt has already invited 22 ambassadors who represent Muslim countries in Sweden to a meeting to discuss their concerns.

Recent Prisoner Free Exercise Cases-- District, Circuit and State Decisions

In Kay v. Bemis, (10th Cir., Sept. 11, 2007), the U.S. 10th Circuit Court of Appeals reversed a Utah district court's dismissal of a prisoner's complaint that he had been denied tarot cards, incense, and religious books. It found several errors in the trial court's approach, including its insistence that the use of tarot cards and other items be "necessary" to the practice of the prisoner's Wicca religion. The appellate court said that it is enough that the prisoner sincerely believed in use of the requested items.

In Travillion v. Coffee, (3d Cir., Sept. 12, 2007), the U.S. 3rd Circuit Court of Appeals rejected Establishment Clause and Equal Protection challenges to actions of the food service contractor for the Allegheny County (PA) jail. During the 2004 Lenten season, it served vegetarian meals to all inmates, regardless of their religious affiliation.

In Williams v. Thurmer, 2007 U.S. Dist. LEXIS 65628 (ED WI, Aug. 27, 2007), a Wisconsin federal district court held that plaintiff stated a claim under the Free Exercise clause and RLUIPA when he alleged that prison officials prevented him from obtaining the Quran and other religious material and from cleaning himself prior to praying. He also adequately stated an Equal Protection claim, alleging that Christian inmates could possess Bibles while he was not permitted to possess a copy of the Quran.

In Messere v. Dennehy, 2007 U.S. Dist. LEXIS 65529, (Aug. 8, 2007), magistrate's report adopted, 2007 U.S. Dist. LEXIS 65442 (D MA, Aug. 30, 2007), a Massachusetts federal district court denied defendant's motion to dismiss a suit brought against her by a prisoner who was denied transfer to a lower security prison because he refused to attend religious-based AA/ NA programs.

In McGowan v. Cantrell, 2007 U.S. Dist. LEXIS 64534 (ED TN, Aug. 30, 2007), as part of a case asserting a series of claims, a prisoner alleged that his Free Exercise rights were violated when prison authorities took his Bibles, Bible Dictionary, and Bible Concordance away from him for one day. The court concluded that plaintiff had not demonstrated that he was denied a reasonable opportunity to practice his religion.

In Williams v. Fleming, 2007 U.S. Dist. LEXIS 67738 (WD VA, Sept. 13, 2007), plaintiff complained that prison authorities improperly interfered with his religiously motivated attempt to fast for 40 days. The court held that there are valid penological interests for prohibiting an inmate from fasting for that period of time. It also rejected his claims that officials retaliated against him because of his exercise of his religious beliefs.

In Andersen v. Griffin, (CA 4th Dist. Ct. App., Sept. 13, 2007), a California appellate court rejected a claim by an inmate held in protective custody that the Establishment Clause was violated by a correctional program coordinator who frequently tuned the television set watched by inmates to a religious channel that promoted a single religion. Plaintiff asserted that this amounted to promoting a specific religion to the inmate population.

Another Interesting Installment In the Mt. Soledad Cross Litigation

Last week, yet another court decision in the litigation over the Mt. Soledad, California cross and memorial was handed down. In April, a California federal district judge held that plaintiffs challenging the constitutionality of the legislation authorizing the United States to acquire the Mount Soledad Veterans Memorial could not depose Congressman Duncan Hunter about his motivation in supporting the legislation. In reaching this conclusion, the court relied heavily on the Constitution's "speech or debate" clause. (See prior posting.) So plaintiffs then tried a different route. They sought to depose Charles Li Mandri, who is West Coast Regional Director of the Thomas More Law Center. Li Mandri was an advisor to Rep. Hunter on issues related to the Mt. Soledad cross, even though he was not on Hunter's staff.

In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 67766 (SD CA, Sept. 13, 2007), the California federal district court quashed the subpoena and issued a protective order to LiMandri. It held that questioning LiMandri would intrude into matters protected by the "speech or debate" clause and would "produce a harmful chilling effect on the right of federal legislators to gather information and consult with paid or non-paid advisors with regard to prospective legislative activities and decisions."

A second ground for quashing the subpoena is perhaps the most interesting. The court said that the Lemon test for determining whether there has been an Establishment Clause violation looks at whether an informed objective observer would perceive that the government has endorsed religion by its challenged action. However, "Mr. LiMandri does not fit the mold of an objective observer. Any testimony Mr. LiMandri may therefore have regarding his observations of the memorial are unhelpful and irrelevant to the Lemon test's effect prong." Finally the court relied on the attorney-client privilege as well as a basis for its conclusion that LiMandri should not be forced to testify.

D.C. Church's Meeting Held Invalid, Negating Vote To Oust Pastor

A District of Columbia Superior Court judge last week ruled that a contested meeting of members of the Shiloh Baptist Church was invalidly called because the notice required by the Church's Constitution was not given. Yesterday's Washington Post reports that at the meeting, held in August in the Church's parking lot, 138 Church members voted to fire the Church's pastor, Rev. Wallace Charles Smith. While Smith won this round, more litigation is pending against Rev. Smith and his supporters. A suit charging breach of contract, fraud and breach of fiduciary duty has been filed in the battle between Church factions. Smith's detractors say he has taken an outside job and has wasted millions of dollars by failing to make needed repairs to the Church's building. Numerous lawyers, as well as public relations firms, are now part of this high profile dispute.

D.C. Circuit Hears Arguements on Application of RFRA to Guantanamo

On Friday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Rasul v. Gates, a case in which four British nationals who were formerly held as detainees at Guantanamo Bay have sued alleging that they were repeatedly harassed as they tried to practice their religion while in custody. The district court held that the Religious Freedom Restoration Act applies to non-resident aliens at Guantanamo. (See prior posting.) On appeal the government argues that RFRA does not apply to aliens outside the U.S. Today's Baltimore Sun reports on the oral arguments at which Judge A. Raymond Randolph asked whether affirming the district court's holding would mean that prisoners abused at Abu Ghraib to also sue. Plaintiffs' counsel Eric Lewis answered, "One place at a time, your honor."

Religious Schools In Britain Are Focus of Government Policies

Friday's Jewish Chronicle reports that the head of Britain's Charity Commission, Dame Suzi Leather, has indicated that she will give a narrow interpretation to a provision in Britain's Charities Act 2006. Under the new law, private religious schools will be required to show that their educational activities provide a "public benefit" in order to maintain their advantageous tax status. Leather said that "public benefit" will require that activities extend beyond “a narrow, exclusive group” and that they benefit those on low incomes. The Chronicle says that the "narrow group" test may threaten 45 ultra-Orthodox Jewish schools that only admit children who come from rigidly observant Jewish families.

Meanwhile, Britain's Department for Children, Schools and Families last week released a document titled Faith in the System. The document, a joint statement with Christian, Hindu, Jewish, Muslim and Sikh supporters of faith schools, seeks to increase understanding of the role of publicly-funded schools with a religious character.

7th Circuit Rejects Free Exercise Challenge To O'Hare Airport Expansion

Last week, the U.S. 7th Circuit Court of Appeals upheld an Illinois district court’s denial of a preliminary injunction in one of the numerous lawsuits that have been filed to prevent expansion of Chicago’s O’Hare Airport. At issue in this case are challenges to Chicago’s plans to take by eminent domain a cemetery belonging to St. John’s United Church of Christ. In St. John’s United Church of Christ v. City of Chicago, (7th Cir., Sept. 13, 2007), the court, in a 2-1 decision, rejected religious freedom and other claims growing out of the Church's belief that remains buried in the cemetery must not be disturbed until Jesus raises them on the day of Resurrection.

The Court found that no free exercise violation occurred when the Illinois legislature amended the state’s Religious Freedom Restoration Act to exclude from its provisions Chicago’s actions in relocating cemeteries or graves as part of carrying out the O’Hare expansion. The amendment was found both to be a neutral law of general applicability and to meet the strict scrutiny test. The Court also rejected challenges under the Equal Protection Clause and RLUIPA.

Judge Ripple, dissented, saying:

I believe that the amendments to the Illinois Religious Freedom Restoration Act … made in the O’Hare Modernization Act … violate the Free Exercise Clause, and, for that reason, must be subject to strict scrutiny. I further believe that there remain factual questions regarding whether the City of Chicago … has shown that the proposed modernization and expansion plan of O’Hare Airport is narrowly tailored to meet the compelling interest the City claims. These factual issues render dismissal inappropriate at this stage in the litigation.

Chicago Business and the Wayne (IL) Republican both report on the decision. (Also see prior posting.)