Wednesday, February 28, 2007

Religious Objection-- Among Others-- Raised To Ohio's New Smoking Ban

The Ohio Department of Health yesterday held hearings on proposed rules to implement a state-wide indoor smoking ban in businesses and other public places that was approved by Ohio voters last November. Today's Columbus Dispatch reports that among the many vociferous opponents of the ban was one Native American woman who said the proposed rules would violate her First Amendment right to freedom of religion because she uses tobacco in spiritual rituals.

SCOTUS Hears Arguments Today On Taxpayer Standing To Challenge Faith-Based Inititative

Today, the U.S. Supreme Court hears oral arguments in Hein v. Freedom From Religion Foundation, raising the question of whether taxpayers have standing to bring an Establishment Clause challenge to expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit said they did. (See prior postings: 1, 2 .) Detailed background on the case can be found in a posting at The Roundtable, written by Professors Ira Lupu and Robert Tuttle. An editorial in today's New York Times urges the Supreme Court to affirm the 7th Circuit's grant of standing.

UPDATE: The Los Angeles Times has an account of today's oral arguments in the case.

UPDATE: The full transcript of today's oral arguments in the Hein case is now available online.

UPDATE: Dahlia Lithwick at Slate has a particularly interesting account of the oral argument.

LA Trial of Temple 420 Leader On Marijuana Charges Starts Friday

The Daily News of Los Angeles earlier this week reported on Friday's upcoming trial for possessing and transporting marijuana of Rev. Craig X Rubin who runs Temple 420. (See prior posting.) The Temple considers marijuana a sacrament, and Rubin distributes it six days each week to more than 400 Temple members, each of whom has paid a $100 initiation fee. Members are asked to donate $60 for each one-eighth ounce of marijuana they receive. Rubin claims that their activities are protected by the Free Exercise clause. The Daily News says: "Temple 420's tenets stem from Rubin's Jewish childhood, conversion to Christianity and experience taking peyote in American-Indian sweat lodges. A pro-pot Republican partial to dark suits and red ties, Rubin hangs the American flag behind his podium and gushes about Ronald Reagan."

Opinion Rejects Free Exercise Challenge To Teaching Children Respect For Gay Couples

Lexis has now made available the court's opinion in Parker v. Hurley, 2007 U.S. Dist. LEXIS 12751 (D MA, Feb. 23, 2007), a case that rejects Free Exercise, privacy and substantive due process claims by parents who were opposed to a Lexington, Massachusetts school's use in kindergarten of books that portray homosexual couples in a positive manner. (See prior posting.) Parents who sued believed that homosexuality is immoral. Following First Circuit precedent, the court held that "the constitutional right of parents to raise their children does not include the right to restrict what a public school may teach their children and that teachings which contradict a parent's religious beliefs do not violate their First Amendment right to exercise their religion." The court found that schools have a reasonable basis for teaching young children to respect differences in sexual orientation.

Property Ownership In Michigan Church Split Is Before State Court

Sunday's Grand Rapids, Michigan Press carried a story about a case scheduled for trial yesterday in state court involving the question of who owns the property of the Lamont, Michigan Christian Reformed Church. The battle is between those congregants who remained loyal to the parent body and local members who formed a new church-- allegedly a majority of the congregation-- after their pastor was defrocked by the parent body. At issue in the case is whether the Christian Reformed Church follows an hierarchical structure as to property disputes as well as to doctrine. If the judge finds it does, under settled First Amendment precedent he will leave determination of the property dispute to a church body. The dispute has begun its way through the Christian Reformed Church's decision making procedures, with a regional body already ruling in favor of those who remained loyal to the parent group. [Thanks to Brian D. Wassom for the lead.]

Judge Excludes Religious Appeal In Closing Arguments

Monday's Philadelphia, Mississippi Evening Bulletin reported on a fascinating ruling made by Mississippi federal district court judge Michael P. Mills. Trial attorney Jim Waide represents a police officer in a suit in which the officer claims he was fired because he criticized the Grenada, Mississippi police chief. Attorney Waide is known for appealing to jurors' religious beliefs in his closing arguments. For example, he has been known to ask the jury to consider "what would Jesus do?". At the request of attorney Gary Friedman, representing defendants, the judge has issued an order prohibiting either attorney from making religious references "in such a manner as can reasonably be construed to indicate that the jury should consider the teachings of or beliefs of the deity or any religious references in addition to or to the exclusion of the law." Friedman argued that counsel should not be put in the position of having to object to religious references in front of the jury.In explaining his order, Judge Mills wrote: "Religious values should not be used for temporal or adversarial gain or to invoke sectarian prejudice or bias. Such tactics have no utility in an unbiased search for the truth and as such are improper in the courtroom." Needless to say, attorney Waide does not agree, arguing that the nation's Christian heritage and the law are intertwined.

Tuesday, February 27, 2007

Serbia Guilty of Not Preventing Genocide of Muslims, But Not Guilty of Comitting Genocide

The New York Times reports that yesterday the International Court of Justice in The Hague issued a decision in Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro, (Summary of Judgment). In the case, Bosnia had sued Serbia civilly for committing genocide in the massacre of Bosnian Muslims at Srebrenica in 1995. The court found that Serbia was not guilty of committing genocide, but that it did violate its obligation to prevent genocide. It found that Serbia also violated its treaty obligations when it failed to transfer Ratko Mladić to the International Criminal Tribunal for the Former Yugoslavia. Details of the decision are discussed in ICJ Press Release 2007/8.

Cert. Denied In Challenge To Polygamy Laws

Yesterday the U.S. Supreme Court denied certiorari (Order List) in Holm v. Utah (Case No. 06-535). Petitioners had asked the court to review a decision of the Utah Supreme Court that upheld the constitutionality of Utah's polygamy laws. Petitioners argued that the right to privacy precludes states from regulating intimate relationships that occur outside of marriage. (See prior posting.)

French Supreme Court Finds Humorist's Remarks Were Anti-Semitic

France's Supreme Court of Appeal has reversed a decision of the Versailles Court of Appeal that had exonerated humorist Dieudonné M’Bala M’Bala of making a public racial insult against the Jewish community. Yesterday's European Jewish Press reports that the Supreme Court found that Dieudonné's words-- published in 2002 --were "clearly anti-Semitic". It rejected the lower court's holding that Dieudonne's remarks were not aimed at Jews, but instead at the influence of religion.

Quebec Soccer League Prohibits Wearing Hijab In Games

One of the rules of the Quebec Soccer Federation prohibits players from wearing headgear during the game. Yesterday's Winnipeg Free Press reports that last Sunday, an 11-year old Muslim girl was told by the referee that she must remove her hijab (head scarf) if she wanted to play in a tournament being held near Laval. The action, taken by a Muslim referee, has provoked controversy, with some arguing that it is another example of inadequate accommodation of individuals' religious practices. The Muslim Council of Montreal urged Quebec to follow the lead of the Ontario Soccer Association that allows players to wear religious clothing on the field.

Monday, February 26, 2007

New Religious Liberty & Church-State Articles

From SSRN:
Camil Ungureanu, The Relation Between Democracy and Religion: Towards a European Discursive “Model”?, (December 2006).

Thomas Charles Berg, Can Religious Liberty be Protected as Equality?, Texas Law Review, Vol. 85, No. 5, April 2007

From SmartCILP:
Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 71 Brooklyn Law Review 61-123 (2006).

Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 Cumberland Law Review 1-23 (2006-2007).

Andrew Koppelman, You Can't Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 71 Brooklyn Law Review (2006).

Winnifred Fallers Sullivan, John Randolph Tucker Lecture: Comparing Religions, Legally, 63 Washington & Lee Law Review 913-928 (2006).

Steven K. Green, "Bad History": The Lure of History in Establishment Clause Adjudication, 81 Notre Dame Review, 1717-1754 (2006).

Marci A. Hamilton & Rachel Steamer, The Religious Origins of Disestablishment Principles, 81 Notre Dame Law Review 1755-1791 (2006).

Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame Law Review 1793-1842 (2006).

NJ Rescue Mission Ordered To End Drug & Alcohol Treatment

In Asbury Park, New Jersey, the Market Street Mission, a gospel rescue mission seeking to operate a homeless shelter, was ordered last Thursday by the state Department of Social Services to stop providing alcohol and drug abuse treatment because the Mission has not obtained a permit. Yesterday's Asbury Park press reported on the new development. The battle between the Mission and local residents has been back and forth between the courts and the zoning board since 2005. The Mission believes its right to the free exercise of religion means it does not need a license. Asbury Park residents believe that the Mission will bring more homeless, unemployed people to the city and that the Mission does not properly screen its residents. In addition, Asbury Park is a city that was largely revitalized by a gay community, while the Mission believes that gays and lesbians require treatment for a sexual addiction.

Recent Prisoner Free Excercise Cases

In Searles v. Bruce, (10th Cir., Feb. 15, 2007), the U.S. 10th Circuit Court of Appeals dismissed an appeal for lack of jurisdiction under the "collateral order" doctrine that allows an interlocutory appeal of a denial of qualified immunity only on questions of law. Here a Jewish prisoner claimed prison officials denied him use of tefillin and denied him a meaningful religious observance of the Jewish festival of Sukkot.

In Henderson v. Frank, 2007 U.S. Dist. LEXIS 11064 (WD WI, Feb. 15, 2007), a Wisconsin the court federal district court rejected an Establishment Clause claim brought by a Taoist prisoner. held that a policy that creates seven "umbrella religions" under which all other religions fall, is merely a system to manage the many faith traditions and does not give any particular benefit to some religions that is denied to others. It also held that the prison's refusal to purchase Taosit religious texts for the prisoner failed to raise a Free Exercise claim.

Sunday, February 25, 2007

Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition

A bill has been introduced into the Maine legislature that would separate the religious role of clergy in performing marriage ceremonies from the legal recognition of marriage. The bill, LD 779, titled An Act to Remove Clergy as Signatories on Marriage Licenses, was introduced by a legislator on behalf of Rev. Mark Rustin, a Congregationalist minister, who says that he does not want to be an agent for the state of Maine. The bill calls for the legal aspect of the marriage contract to be carried out by lawyers, justices, judges or notaries. Today's Village Soup Times reports that Rev. Rustin is concerned that the present role of clergy places them in a difficult position when they need help a couple get through a divorce. Also, he said, that sometimes older couples want the clergy’s blessing to live together, but do not want a legal marriage contract because they will then lose Social Security benefits. Some people think the bill will also impact the issue of same-sex marriages.

Challenge To Sale of Boston Land To Mosque Dismissed As Untimely

In Boston, a Superior Court judge has dismissed a lawsuit challenging on Establishment Clause grounds the sale of a parcel of land by the Boston Redevelopment Authority to the Islamic Society of Boston. The land was sold at a price well below its appraised value. Today's Boston Globe reports that the court held the appeal of the BRA's decision to be untimely. The judge found that the plaintiff was bound by the requirement that BRA decisions be appealed within 30 days. of the sale of the land. (See prior related posting.)

Union Has Independent Accommodation Requirement Under Title VII

United States v. State of Ohio, 2007 U.S. Dist. LEXIS 11895 (SD OH, Feb. 21, 2007), is an opinion on the award of attorneys fees to a Presbyterian state employee after he won a settlement in a suit brought on his behalf by the EEOC and the U.S. Department of Justice. The settlement allowed him to direct a portion of his union fees to a charity because of his opposition to the union's support of abortion and gay rights. (See prior posting.) In the course of its decision to award attorneys' fees, the court held that the union had an independent duty under Title VII of the 1964 Civil Rights Act to accommodate the employee's religious beliefs, even though state law (and a directive of the State Employee Relations Board) provided that the state would not do so. State law permitted accommodation of public employees who hold sincere religious objections to joining or financially supporting a union only when they belonged to a religion that historically held conscientious objections to such support.

Religious Defense In Charges Of Possessing Hawk Feathers

In Marietta, Ohio Municipal Court, Steve Coulter is defending against charges of possessing hawk feathers without a permit, arguing that he was using them for a Native American religious ceremony. Friday's Marietta Times reports that Coulter picked up two dead hawks found along the highway. Coulter, who was raised as a Baptist, is now he leader of a local Native American tribe, "The People’s Nation". The group uses hawk feathers to make fans to lift smoke and prayer during religious ceremonies.

Defiant Pastor Back In Georgia Supreme Court

The Associated Press reports today on a dispute between the pastor of a small church in Cedartown, Georgia and the deacons of the church. Last week the dispute was back in the Georgia Supreme Court for the third time. Bethlehem Missionary Baptist Church pastor Willie M. Bolden refuses to leave his post. In an earlier round of litigation, the court ordered a congregational vote on whether the deacons control the church's property. By a vote of 27-12, the congregants said they do.

Jewish Groups Testify In Favor Of Maryland Divorce Bill

The Institute for Public Affairs reports that last Thursday, representatives of a number of Jewish organizations testified before the Maryland legislature in favor of pending bills that would require courts to refuse to grant a civil divorce where Jewish husbands had not given their wives a religious divorce document ("get"). (See prior posting.) An opinion letter from Maryland's attorney general says that the legislation does not violate the Establishment Clause. Here is the written testimony presented by the Union of Orthodox Jewish Congregations of America.

Teachers Pray For Students' Success, and Create Controversy

A different kind of controversy over prayer in the classroom has broken out in Brooksville, Florida. Thursday's St. Petersburg Times reported that after school hours on a Friday night at the beginning of February, the principal and several staff members decided to pray for the success of Brooksville Elementary School students on the FCAT-- Florida's achievement tests. They offered Christian prayers and anointed the students' desks with prayer oil. Some teachers however mistook the episode for vandalism because on Monday morning the desks were still greasy from the oil. After some complaints and a conversation with superintendent Wendy Tellone, the school's principal said that future prayer meetings would be held off campus. An attorney for the Hernando County school system said that as long as the religious activities were not disruptive, the school cannot discriminate against people because of their religious practice. [Thanks to Dispatches from the Culture Wars for the lead.]

Friday, February 23, 2007

High Schooler's Religious Objections End Teacher's Creative Essay Assignments

Yesterday's Everett, Washington Herald reports that a Lake Stevens, WA high school teacher is in trouble for assigning creative essays to his students. Gary McDonald asked his students to write an essay to compare "World on the Turtle's Back"-- an Iroquois creation myth -- with other creation stories and their own concepts of good and evil. He asked them to discuss how that story, and how the creation account in Genesis, reflect the four functions of myth. In a later assignment he asked students to write on how evil can exist if God is good and all-powerful. One of McDonald's 17-year old students complained that the assignments were offensive to her Christian beliefs. The complaint came one day after McDonald-- after being asked by one of his students-- told the class he was an atheist. McDonald's principal reprimanded him and told him to eliminate material he had added to standard assignments in the textbook. McDonald says he was trying to prepare students for the study of Arthur Miller's "The Crucible," based on the Salem witch trials.

Spanish Court Upholds Right Of Chruch School To Fire Teacher

In Madrid, Spain, the constitutional court today upheld the right of a religious school to fire a teacher because she was separated from her husband and living with another man. Reuters reports the court ruled that religious authorities have the right to decide whether a teacher should be retained, and in doing so they can consider not only a person's knowledge of dogma and the person's teaching ability, but also the individual's personal behavior. It said that behavior may be a vital element since personal witness is a way of transmitting values. Dismissed teacher Maria del Carmen Galayo said that she will appeal the decision to the European Court of Human Rights.

Missouri Courthouse Bible Group Changes Location

At St. Charles County, Missouri Bible study group group that had met each week in the county courthouse has now moved to a room in the county administration building. After a complaint by a local attorney about the group's use of courthouse premises (see prior posting), Judge Matthew Thornhill who leads the study group decided on the move. Unlike the courthouse, the county administration meeting room is available for other groups to reserve as well. Yesterday's St. Louis Post-Dispatch quotes Thornhill as saying: "I sought the Lord, and I made the decision that I believe was best for the circuit."

California Suupreme Court Refuses To Hear Mt. Soledad Appeal

Yesterday, the California Supreme Court announced that it would not hear an appeal from a November decision by a state appellate court in the long controversy over the Mt. Soledad cross. The decision at issue here had rejected an Establishment Clause challenge to a vote by San Diego residents that authorized the city to donate its interest in the Mt. Soledad Veterans Memorial to the federal government. WorldNet Daily reports that the court's ruling in Paulson v. Abdelnour also denied a request by the ACLU to depublish the Court of Appeals opinion. Yesterday's San Diego Union-Tribune, reporting on the decision, quotes Jay Sekulow, chief counsel of the American Center for Law and Justice, who said that this decision effectively ends the state court litigation challenging the cross-- which is now owned by the federal government. Federal lawsuits, however, are still ongoing. [Thanks to Richard Watson for the lead.]

Egyptian Blogger Jailed For Insulting Islam

In Egypt on Thursday, Abdel Kareem Nabil, 22, a former law student at Al Azhar University, was sentenced to 3 years in prison for using his blog to insult Islam and the Prophet Muhammad, and inciting sectarian strife. He was sentenced to an additional year for insulting Egypt's president, Hosni Mubarak. The Herald (Glasgow, Scotland) today reports that Nabil, blogging under the screen name Kareem Amer, strongly criticized conservative Muslims after a 2005 Muslim attack on a Christian church over a play that Muslims found offensive. In March, Nabil was expelled from Al Azhar where he had been a law student. He has called Al Azhar the "other face of the coin of al Qaeda" and has called for the University to be dissolved or secularized.

Russian Student's Challenge To Teaching of Evolution Dismissed

In Russia on Wednesday, the Admiralty District Court in St. Petersburg dismissed a suit that had been brought by Maria Shreiber, a 16-year old student, who claimed that her rights were violated and her religious beliefs were insulted by her school's teaching of the theory of evolution. She wanted her school to offer alternatives to the treatment of evolution set out in her 10th-grade biology textbook. Wednesday's International Herald Tribune reported that Schreiber has now dropped out of school after receiving low grades that her father attributed to teachers who were prejudiced against Maria. Schreiber's father, Kirill Schreiber, told the press, "Our task remains the same: to dethrone Darwin's theory." (See prior posting.)

Muslim Police Officer's Discrimination Claim Dismissed On Procedural Grounds

In Webb v. City of Philadelphia, 2007 U.S. Dist. LEXIS 11762 (ED PA, Feb. 20, 2007), a Muslim woman police officer brought four discrimination charges against the Philadelphia police department after it refused to allow her to wear khimar (Muslim head covering). In this decision the court dismissed two of those charges on procedural ground. Her Title VII claim of sex discrimination based on the fact that the department granted religious accommodations for men to wear beards was dismissed because that charge had not been presented to the EEOC. Her state claim of religious discrimination under Pennsylvania's Religious Freedom Protection Act was dismissed because she had not given the city the required statutory notice of her claim before filing suit.

Thursday, February 22, 2007

Suit Challenges Jacksonville's Permit Requirement To Feed Homeless

In Jacksonville, Florida last week, Michael J. Herkov, an associate professor at North Florida University filed a federal lawsuit challenging the constitutionality of a city ordinance that requires a permit in order to hand out food to the homeless. Yesterday's Florida Times-Union reports that Herkov alleges that the ordinance interferes with his carrying out a basic tenet of his Christian faith. City Assistant General Counsel Ernst Mueller says that the law is not directed at interfering with anyone's religion. It is intended to assure sanitation and toilet facilities where food is distributed and to protect the homeless population from dangers of spoiled food. But Herkov's attorney, Scott Fortune, says the law is so broadly worded that it could be construed to prevent serving someone coffee or a meal at one's home without a permit.

British School Girl Loses Battle To Wear Niqab yesterday reported that a British High Court has ruled against a 12-year old Muslim student who was challenging her Buckinghamshire school's ban on her wearing a niqab (full face veil). The student had argued that the ban violated her "legitimate expectation" and infringed her right to freedom of "thought conscience and religion" under the European Convention on Human Rights (Art. 9). The court, however, upheld the school, finding that the ban was "proportionate". The veil prevented teachers from seeing the pupil's facial expressions and so interfered with effective classroom interaction; the ban was necessary to enforce a school uniform policy so girls of different faiths would have a sense of equality and identity within the school; school security required the ban so that an unwelcome visitor could not move incognito around the school wearing a niqab; and the ban was necessary to avoid peer pressure on girls to start wearing the veil. Authorities have offered the student-- who is now being tutored at home-- a place at a different mixed school where wearing of the niqab is permitted, but she wants to go back to her original school. (See prior related postings 1, 2.)

Probationer With Religious Objections Permitted To Give Swab DNA Sample

The Violent Crime Control and Law Enforcement Act of 1994 creates a federal index of DNA samples from convicted offenders, crime scenes, and unidentified human remains. 42 USC Sec. 14135a (d) (1) requires probation officers to collect a DNA sample from individuals on federal supervised release. In United States v. Holmes, 2007 U.S. Dist. LEXIS 11597 (ED CA, Feb. 20, 2007), a California federal district court agreed with Elden Holmes who was on supervised release that he should be able to provide a buccal swab DNA sample rather than a blood sample because of his religious objections to having his blood drawn. The court found that under the Religious Freedom Restoration Act, drawing blood would impose a substantial burden on Holmes free exercise of religion, that the government lacks a compelling interest in requiring a blood sample instead of a cheek swab sample, and that forcing Holmes to submit to a blood-based DNA test is not the least restrictive means of achieving the government's compelling interest in obtaining his DNA profile.

Indiana Church's Zoning Challenge Rejected

In Digrugilliers v. Consolodated City of Indianapolis, 2007 U.S. Dist. LEXIS 11485 (SD IN, Feb. 15, 2007), and Indiana federal district court denied a preliminary injunction to a Baptist Church that was cited by the city for being in violation of zoning ordinances. The court rejected plaintiff's argument that requiring the Church to apply for a zoning variance unduly burdens its religious practice under the First Amendment and RLUIPA. The court found no basis to conclude that nonreligious land uses are treated more favorably than religious uses in seeking or receiving a variance. It said that religious land uses implicate land use concerns not posed by permitted uses such as community centers and auditoriums, including limiting the commercial viability of surrounding land because businesses such as liquor stores and adult bookstores cannot locate nearby. The court also rejected claims that the zoning ordinance infringed the Church's free expression rights, finding among other things that the ordinance is not a content-based restriction on speech. Finally it rejected claims under the Equal Protection clause and RLUIPA's anti-discrimination provisions.

Schools' Barring of Student Religious Literature Found Unconstituitonal

In Morgan v. Plano Independent School District, 2007 U.S. Dist. LEXIS 11557 (ED TX, Feb. 20, 2007), a Texas federal Magistrate Judge issued proposed findings in a case challenging policies in two Plano, Texas elementary schools that prohibit students from distributing invitations and tickets to church events to fellow students and prohibit them from giving fellow students pencils, brownies and candy cane pens with religious messages. The court held that the allegations, if proven, demonstrate that a number of the defendants engaged in unconstitutional viewpoint discrimination in banning religious viewpoint material while permitting students to distribute secular material to their classmates. The findings recommended the denial of motions to grant qualified immunity to those defendants. (See prior related posting.)

UPDATE: In a later proceeding in the same case at 2009 U.S. Dist. LEXIS 60179 (Feb. 27, 2009), the court denied qualified immunity to the school principal who stopped an elementary school student from passing out religious-themed pencils in the cafeteria and outside on school grounds during and after school hours.

Former Court Administrator Claims Religious Motives In Her Dismissal

Yesterday's Detroit News reports on a religious discrimination lawsuit filed by Julie Pucci, the former deputy administrator of Michigan's 19th District Court. Pucci was in a live-in sexual relationship with District Judge William Hultgren. In March 2005, Pucci was promoted to Deputy Administrator, but moved back to her deputy administrator position after the Michigan Supreme Court advised her to do so. Subsequently, Judge Mark Somers became chief judge of the 19th District Court. He reorganized the court and eliminated Pucci's position. Her lawsuit claims that Somers took that action because of his religious objections to her relationship with Hultgren. Pucci claims that Somers routinely forces his Christianity on the court, for example by asking defendants about their church attendance.

Suit Filed Over School's Objection To Jesus Halloween Costume

A federal lawsuit was filed on Tuesday against the Abington Township (PA) School District and a principal of one of its schools over last year's Halloween activities. According to a report by the AP and a release by the Alliance Defense Fund, students at Willow Hill Elementary School were to wear a costume at school on Halloween if they wanted to take part in the school's parade and party. A 4th grader and his mother objected on Christian religious grounds to promoting Halloween and its pagan elements. So they proposed that the student come to school dressed as Jesus.

However, school Principal Patricia Whitmire objected saying that the costume would violate the school's policy against advocating religion-- even though other students would dress as witches and warlocks. When the student appeared in the Jesus costume, Whitmire told him to remove the "crown of thorns" that was part of his costume and not identify himself as Jesus. The complaint in the case (full text) seeks a declaratory judgment that defendants action violated the student's free speech, free exercise of religion, due process and equal protection rights.

Kazakhstan Considering More Restictive Religion Law

Forum 18 yesterday reported that Kazakhstan's Religious Affairs Committee in the Justice Ministry is drafting new restrictive amendments to the nation's 2005 Religion Law. (See prior posting.) Under consideration are provisions to ban all unregistered religious activity. Registered religious groups with fewer than 50 adult citizen members would be prohibited from publishing or importing religious literature, setting up companies to produce religious objects or distribute theological literature, maintaining open places of worship or religious buildings, seeking or accepting donations, or conducting charitable activities.

Wednesday, February 21, 2007

Justice Department Announces New Religious Freedom Initiatives

Yesterday, the U.S. Department of Justice released its Report on Enforcement of Laws Protecting Religious Freedom: Fiscal Years 2001- 2006. (AP report.) It also issued a press release announcing the First Freedom Project-- a number of new initiatives to promote religious freedom. Attorney General Alberto J. Gonzales says the department will: (1) create a Department-wide Religious Freedom Task Force; (2) initiate a program of public education to make certain that people know their rights and that community leaders bring religious liberty concerns to the department's attention; (3) hold a series of regional training seminars for religious, civil rights and community leaders; (4) launch a new website with information on laws protecting religious freedom and how to file a complaint; and (5) distribute informational literature on how to file religious discrimination complaints.

The Attorney General also announced these initiatives in a speech before the Executive Committee of the Southern Baptist Convention. (Full text.) In the speech he referred to the events of 9-11, saying that:"Nothing defines us more as a Nation – and differentiates us more from the extremists who are our enemies – than our respect for religious freedom."

He also praised the leadership of President George W. Bush, saying: "Most Americans believe in God. And so they naturally understand and accept the limitations and imperfections that are a part of being human. Perhaps because of our frailties, most of us yearn for heroes, we are attracted to and inspired by leaders who perform extraordinary deeds or at least inspire others in worthy causes. I believe this is why many Americans share a natural curiosity—a fascination—about the President of the United States.... [T]here are very few individuals as strong in their faith as George W. Bush."

Yesterday's Tennessean reported on the Attorney General's speech. It quoted Hedy Weinberg, executive director of the Tennessee branch of the American Civil Liberties Union, who wondered why the announcement of the new initiatives was made to a meeting of a single religious group rather than to an interfaith gathering.

Cert. Denied In Staten Island Billboard Case

Yesterday, the United States Supreme Court denied certiorari (Order List) in Okwedy v. City of New York, (Case No. 06-676). The case involves a constitutional challenge to action taken by the president of the Borough of Staten Island who wrote a billboard company urging it to taken down an anti-gay billboard advertisement posted by Keyword Ministries church. (See prior posting.) SI Live reported on the denial of cert.

U.S. Religious Conservatives Oppose Ratification of Treaty On Gender Discrimination

Conservative leaders, including conservative religious groups, are initiating an effort to prevent U.S. ratification of Convention on the Elimination of All Forms of Discrimination Against Women. The Convention was adopted by the United Nations General Assembly 28 years ago, and 185 countries are a party to it. The United States signed the treaty in 1980, but it has never been ratified by the Senate. BP News reported yesterday that supporters of the treaty have asked Sen. Joseph Biden, chairman of the Senate Foreign Relations Committee, to schedule a vote on the treaty March 8, International Women's Day. Rep. Lynn Woolsey has circulated a letter to members of the House of Representatives seeking support for a non-binding resolution asking the Senate to ratify the Convention.

Now, however, Rep. Chris Smith along with pro-life organizations have circulated their own letters opposing the treaty, arguing that it "will be distorted and used against provisions like parental involvement laws, the ban on barbaric partial-birth abortions and conscience protection for people of faith -- not to mention promoting taxpayer funding for abortion." Opponents are particularly concerned with Article 12 of the Convention that provides: "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."

Prisoners' Inter-Religious Dialogue Is Not Religious Practice

A Wisconsin federal district court took a novel approach in denying a claim by an atheist prisoner that he should be permitted to form a study group for inmates who designate themselves as atheists, humanists, freethinkers and "other" and inmates who have no religious preference. In Kaufman v. Schneiter, (WD WI, Feb. 15, 2007), the court said:
petitioner is not challenging the prison’s decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates of different religious or philosophical persuasions for the purpose of facilitating inter-religious dialogue.
However, the court did permit plaintiff to proceed with his claim that his rights under the First Amendment and RLUIPA were violated when prison officials refused to permit him to order literature about atheism.

New Jersey School Board Prohibits Religious Teaching In Wake of Class Recordings

In Kearny, New Jersey last night, the Kearny Board of Education held a heated meeting focusing on a teacher's religious proselytizing in class-- taped by a student. (See prior posting.) Civil rights groups have offered to represent the student, Matthew LaClair, in court. (New York Times.) WABC reported that the Board of Education yesterday adopted a policy that prohibits teaching of religion in schools. Teacher David Paszkiewicz, though, will keep his job. And the Board has already ruled that students can no longer tape classes unless they first ask for permission.

British Muslim Peer Speaks Out Against Niqab

In Britain, Lord Ahmed of Rotherham, the leading Muslim member of the House of Lords, reversed his prior position and spoke out against Muslim women in Britain wearing the niqab (full-face veil). This Is London reported yesterday that Ahmed, one of the Labour government's main Muslim supporters, said that "the veil is now a mark of separation, segregation and defiance against mainstream British culture." He said it is a "barrier to integration" that invites "harassment" from non-Muslims.

Tuesday, February 20, 2007

Cert. Denied In NY School Holiday Decorations Case

The U.S. Supreme Court today denied certiorari (order list) in Skoros v. New York (Case No. 06-171). In the case below, the 2nd Circuit last February in a 2-1 decision upheld a New York City Department of Education policy that allows the menorah to be displayed as a symbol of the Jewish holiday of Hanukkah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but permits only secular symbols, and not a creche or nativity scene, to be displayed as a symbol of Christmas. (See prior postings 1, 2 ). The Supreme Court had the case on its calendar to consider at its conference seven previous times before it finally decided to deny cert. today. (See SCOTUS Blog). Today's AP reports on the case. [Thanks to Richard Watson for the information.]

San Diego Diocese Considering Bankruptcy Filing

The Roman Catholic Diocese of San Diego, California may become the fifth Catholic diocese in the United States to declare bankruptcy in the face of lawsuts over past priest sexual abuse of minors, according to yesterday's San Bernadino Press-Enterprise. In a letter to parishioners distributed Sunday by Bishop Robert Brom, the diocese said that attorneys had been unable to reach a settlement with lawyers for those who claim to have been molested by priests. The letter continued: "Good stewardship demands that settlements not cripple the ability of the church to accomplish its mission and ministries. If this cannot be done through settlement negotiations, the diocese may be forced to file Chapter 11 reorganization in bankruptcy court." A number of the pending suits name the San Bernadino diocese along with that of San Diego. John Manly, an attorney who represents plaintiffs suing both dioceses, says that San Diego's decision may pass more damages off to San Bernadino. He continued: "This is not about money. This is about disclosing information and giving people their day in court."

Ukraine Archives Takes Back Jewish Community's Torah Scrolls

In central Ukraine, the Jewish community of Zhitomir (run by Chabad) has been forced to return their remaining 10 Torah scrolls to the Zhitomir Regional State Archives. JTA yesterday reported that the scrolls originally belonged to synagogues and individuals in Zhitomir, but were confiscated by Nazis during their occupation of Ukraine in World War II or were seized by Communist authorities in anti-religious campaigns. The returned scrolls are among 290 held by the Archives which had loaned 17 of them to the Jewish community. However, in disputes about whether the scrolls had been damaged, the Archives has taken them back. The Jewish community hopes that Ukraine's legislature will enact a restitution law so the Torahs can be reclaimed.

Upcoming Conferences of Interest

On March 20, the Boston College Law & Religion Program will hold its inaugural conference titled Matters of Life and Death: Religion and Law at the Crossroads.

On April 12-13, the West Virgina University College of Law and the American Constitution Society will sponsor a conference titled The Religion Clauses in the 21st Century.

Monday, February 19, 2007

Army Chaplain Discharged During Attempt To Move To Wicca

Today's Washington Post reports on an army chaplain who was ordered out of Iraq and removed from the chaplain corps -- on a technicality-- as he attempted to change his affiliation from a Pentecostal Christian church to a Wiccan Congregation. Donald M. Larsen entered the chaplain corps under the endorsement of the Full Gospel Churches. When that church learned of Larsen's application to change endorsements to the Wiccan Sacred Well Congregation, it quickly pulled his endorsement. The Sacred Well could not step in immediately because it was still awaiting certification as an official endorser. The gap led the Army to pull Larsen's chaplaincy appointment.

The Post reports: "Jim Ammerman, a retired Army colonel who is president and founder of the Chaplaincy of Full Gospel Churches, acknowledges that there is a longstanding agreement among endorsers not to summarily pull the papers of a chaplain who wants to make a valid switch. 'But if it's not a valid thing, all bets are off,' Ammerman says, adding that Wiccans 'run around naked in the woods' and 'draw blood with a dagger' in their ceremonies. 'You can't do that in the military. It's against good order and discipline.'" [Thanks to Prof. Steven Jamar via Religionlaw listserv for the lead.]

President's Day Brings Discussion of First President's Beliefs

Today is President's Day. The occasion has generated at least two interesting articles on the true nature of George Washington's religious beliefs. One by author Peter Lillback for the Philadelphia Evening Bulletin last week argues that scholars have underplayed the extent of Washington's Christian faith. Another by Beliefnet Editor-In-Chief Steven Waldman concludes: "By the definition of Christianity offered by modern-day liberal Christians, Washington would pass muster. He believed in God, attended church, endorsed the golden rule, and valued the behavioral benefits of religion. But for those who define being a Christian as requiring the acceptance of Christ as personal savior and the Bible as God's revelation, Washington, based on what we know, probably was not 'Christian.'" Finally, here is an article from several years ago on Beliefnet discussing the "controversial" religious views of Washington, Jefferson and Lincoln.

By the way, Presidents Day -- placed on the third Monday in February by the Uniform Monday Holiday Act of 1968 that became effective in 1971 (5 USC 6103) -- is still called "Washington's Birthday" in the federal statute. However, as explained by one U.S. Embassy's website: "President Nixon issued a proclamation declaring the holiday as "Presidents' Day" in 1971. President Nixon erroneously believed that a Presidential proclamation on the matter carried the same weight as an Executive Order. Since that change in 1971, the common term has been 'Presidents' Day'."

Here is a Proclamation issued last week by President Bush which, opting for historical accuracy, proclaims February 22 (not today) as the 275th anniversary of George Washington's birth. (It does not mention today's statutory holiday.) Steering away from controversy, the Proclamation-- in describing Washington's accomplishments-- says nothing about Washington's religious faith or beliefs.

State Reps Circulate Memo On Supposed Jewish Origins Of Evolutionary Theory

An AP article and one from the New York Times over the weekend discuss a memorandum from Georgia state Representative Ben Bridges. The memo says that evolution is a myth propagated by the ancient Jewish Pharisees, and that the Big-Bang theory derives from Kabbala (Jewish mysticism). The memo was apparently written by Marshall Hall, president of the Fair Education Foundation, who says that Bridges consented to his writing it and sending it out in Bridge's name. The memo was distributed to key legislators in California and Texas. In turn, Texas Rep. Warren Chisum, chairman of the state's House Appropriations Committee, sent the memo to all 149 other representatives in the Texas legislature. After a complaint from the Anti-Defamation League, Chisum has apologized

Recent Prisoner Free Exercise Cases

In Hyde v. Fisher, (ID Ct. App., Feb. 8, 2007), the Idaho Court of Appeals concluded that the trial court had erred in dismissing-- largely on procedural grounds-- a prisoner's federal RLUIPA claim and his state claim under the Free Exercise of Religion Protected Act. The prisoner claimed he had been denied the right to practice his Native American religion. The Court of Appeals temporarily remanded the case, which had gone through a full trial, for the court to enter findings of fact and conclusions of law on the statutory claims.

In Howard v. Epps, 2007 U.S. Dist. LEXIS 9716 (ND MI, Feb. 9, 2007), a federal district judge accepted a federal magistrate judge's recommendations that a Rastafarian prisoner's free exercise and equal protection challenges to prison hair-length policies be dismissed.

In Ashanti v. California Department of Corrections, 2007 U.S. Dist. LEXIS 10612 (ED CA, Feb. 15, 2007), a federal magistrate judge, in a long opinion, recommended granting summary judgment for defendants. The effect of this is to reject claims under the 1st, 8th and 14th Amendments by a prisoner that he is entitled to have his African-Muslim name appear as his only name on California Department of Correction records in connection with his current sentence.

Meanwhile the Associated Press today has coverage of a suit filed by a South Dakota prisoner who is seeking various religious items and privileges in order to be able to practice Asatru.

New Zealand Reaffirms Religious Diversity

New Zealand's Human Rights Commission yesterday released a statement on tolerance at an inter-faith forum. NZPA today reported that Destiny Church and Vision Network of evangelical churches expressed outrage that the statement says New Zealand has no state religion. Prime Minister Helen Clark said: "We are very diverse peoples these days we simply couldn't agree on a state religion."

UPDATE: Here is the full text of the Draft National Statement on Religious Diversity.

Sunday, February 18, 2007

Recent Articles On Church-State, Law & Religion

From SSRN:
Juan Ferreiro Galguera , Cartoons Crisis, Religious Feelings and European Court of Human Rights (Las Caricaturas Sobre Mahoma Y La Jurisprudencia Del Tribunal Europeo De Los Derechos Humanos), (Revista Electrónica de Estudios Internacionales, Vol. 12, pp. 1-40, 2006).

Dawinder S. Sidhu & Neha Singh Gohil, The Sikh Turban: Post-9/11 Challenges to this Article of Faith, (February 12, 2007).

Timothy D. Lytton, Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, (Connecticut Law Review, Vol. 39, No. 3, p. 809, 2007).

From SmartCILP:
Irina D. Manta, Missed Opportunities: How the Courts Struck Down the Florida School Voucher Program, 51 St. Louis University Law Journal 185-202 (2006).

Washington State's Religious Discrimination Complaints Grow

The Associated Press yesterday reported that religious employment discrimination complaints in Washington state have risen twice as fast as the national average. From 2002 to 2006, complaints in the state rose 60%, compared to a 30% rise nationwide. The increase is blamed on rising workplace tensions from the war in Iraq and increasing diversity in the population. While many of the complaints have come from Muslims, there are a growing number from Christians as well.

Religion Continues As An Issue For 2008 Presidential Race

Today's New York Times reprints this cartoon from the Tulsa World commenting on religion in the 2008 presidential race. In addition today's New York Times Magazine carries a piece by Gary Rosen titled Narrowing the Religion Gap?. He says that when one compares the presidential front runners-- Hillary Clinton, Barack Obama, John McCain and Rudy Giuliani-- we may have "a matchup between churchgoing Democrats and secular-minded Republicans."

Governmental Bodies In Israel Feud Over Conversion Standards

This week's Forward carries an article on the tensions between two different governmental bodies in Israel over permitting conversions to Judaism. The state-funded Institute for Jewish Studies that was formed in 1998 to break a deadlock between Orthodox and non-Orthodox Jewish concerns about conversions has stopped referring candidates to Israel's rabbinical courts for conversion until the chief rabbinate appoints new members to the Conversion Authority who will not impose such strict conditions for conversion. Rabbi Andrew Sacks of the Masorti (Conservative) Movement criticized current rabbinical court members, saying that they are imposing a new "Khomeinization of the process of conversion in Israel".

Appointment of new members of to conversion courts has been held up for months. Civil Service Commissioner Shmuel Hollander says this is because he has been under pressure to approve rabbinical court judges who do not meet statutory standards for appointment.

South Korea Debates Religion In Schools

In South Korea, where students are required to attend the school in the district where they live, regardless of whether it is public or private, the Ministry of Education and Human Resources Development is proposing that schools be required to offer more than one alternative to classes in religion. Faith-based private schools receive government funding. Yesterday, The Hankyoreh reported that the Ministry's proposal-- which is scaled down from an earlier draft-- is still controversial. Some say that students could still be forced to participate in religious ceremonies that are inconsistent with their beliefs, while religious schools oppose any regulation of religious education. Meanwhile, in a related case, a challenge to mandatory chapel attendance at religious universities is being considered by Korea's Constitutional Court.

California Defendants Can Refile RFRA Challenge To Marijuana Seizure

In Multidenominational Ministry of Cannabis and Rastafari, Inc. v. Gonzales, 2007 U.S. Dist. LEXIS 10727 (ND CA, Feb. 2, 2007), a number of individuals and a non-profit religious corporation sued federal, state and local officials seeking an injunction and declaratory judgment to prevent confiscation of marijuana plants grown on their property. Plaintiffs had lost challenges to prior seizures of marijuana. This suit was filed after the seizure of 11,500 marijuana plants in 2005. The court dismissed plaintiffs' claims under the First Amendment, the Religious Freedom Restoration Act, RLUIPA, and California's Compassionate Use Act. Some of the claims were dismissed on sovereign immunity grounds. Claims by the corporation were dismissed because, unlike the individual plaintiffs, it could not appear pro se. The court, however, refused to accept defendants' res judicata defense alleging that the claims could have been raised in prior litigation. The court found that the U.S. Supreme Court's O'Centro decision "shifted the legal terrain surrounding plaintiffs' suit, thereby warranting reexamination of the grounds for relief raised in plaintiffs' previous petition." While dismissing plaintiffs' current complaint as insufficient, it gave them the opportunity to file an amended RFRA complaint against the federal officials setting forth a proper prima facie case.

Saturday, February 17, 2007

D.C. Circuit Upholds Denial of C.O. Status To Solider

In Aguayo v. Harvey, (D.C. Cir., Feb. 16, 2007), the U.S. Court of Appeals for the District of Columbia upheld the denial of conscientious objector status to a soldier who had applied for a discharge shortly before he was to be deployed to Iraq. The Court found that Department of the Army Conscientious Objector Review Board had adequate support in the record for its conclusion that "Aguayo lacked the 'religious foundation' or 'underpinning' required of conscientious objectors and had not adequately explained the source of his claimed beliefs; that [he] appeared to hold his beliefs prior to enlistment; and that the timing of [his] application was suspect." NBC5i reported on the decision yesterday. (See prior related posting, and links to legal documents in the case.)

Religious Discrimination Found In Refusal To Process Photos

In Santa Clara County, California last week, a Superior Court judge awarded $4000 in damages and $50,000 in attorney’s fees in a religious discrimination suit filed against a local camera store. The court also ordered the store to not discriminate against customers based on their religion or ancestry. The San Jose Mercury News reported yesterday that plaintiff Mitchell Cutler claimed he was discriminated against when the camera store owner refused to make enlargements of dozens of old photos taken in the early 20th century of Cutler’s relatives in Europe and pre-state Israel. Cutler had told store owner David Muston that the relatives in the photos were forced to flee to France after taking part in political and military activities in pre-state Israel. Muston said he assumed the individuals in the photos were Jewish terrorists and his refusal to enlarge the photos was his way of taking a stance against terrorism.

Protecting Native American Religious Sites OK Under Establishment Clause

In Mount Royal Joint Venture v. Kempthorne, (D.C. Cir., Feb. 16, 2007), the U.S. Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the Department of the Interior’s withdrawal of portions of the Sweet Grass Hills of Montana from mineral exploration. Plaintiffs’ claim was based on the fact that one of the articulated purposes of the withdrawal was to protect areas of traditional religious importance to Native Americans. Most of the court’s opinion dealt with challenges to the land management decision on other grounds.

Friday, February 16, 2007

Appeal Filed In Philly Gay Pride Protest Case

A notice of appeal to the U.S. 3rd Circuit Court of Appeals was filed last Tuesday in Startzell v. City of Philadelphia. (Alliance Defense Fund release.) Last month in the case, a Pennsylvania federal district court upheld the city of Philadelphia that had applied its permit requirements to prevent a group of evangelical Christians from disseminating anti-gay messages at a 2004 gay pride event. (See prior posting.)

NYPD Has Liaison To New York's Muslim Community

Yesterday's Canarsie Digest carries a story on Erhan Yildirim, whose job is community coordinator between the New York Police Department and the Muslim community. Employed directly under NYPD Commissioner Ray Kelly, Yildirim's job is to both explain Islam to the police and explain police practices to New York's Muslim community.

British Court Upholds Conviction For Sending Photos Of Fetus To Pharmacies

In Britain yesterday, the Queen's Bench Division of the High Court upheld the conviction of a Catholic grandmother who had been charged with violations of the Malicious Communications Act of 1988 for sending photos of an aborted fetus to three pharmacies that had begun to sell the "morning after" pill. One of the letters containing the photo was opened by a pharmacy employee whose relative had recently given birth to a still-born child. In Connolly v. Director of Public Prosecutions, [2007] EWHC 237 (Admin) (Feb. 15, 2007), the court found that the law's prohibition on sending an article that is indecent or grossly offensive in nature to someone else for the purpose of causing stress or anxiety had been violated.

It also held that applying the law in this way did not violate Art. 9 of the European Convention on Human Rights that protects the freedom to manifest one's religious beliefs "subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interest of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others." Christian Today reporting on the decision says that Mrs. Connolly has instructed her counsel to appeal the decision to the House of Lords. In comments to the press, she particularly reacted to a portion of the court's opinion that said: "A member of the Cabinet who spoke publicly in support of abortion and who received such photographs in his office in Westminster might well stand on a different footing..." Mrs. Connolly said: "on every moral issue which affects the public, it is everyone's democratic right to be able to obtain full information on which they can make an informed decision."

First Amendment Challenge To Denial of Immunization Exemption Moves Ahead

In Nagy v. Bayport Bluepoint Union Free School District, 2007 U.S. Dist. LEXIS 9809 (ED NY, Feb. 13, 2007), a New York federal district court permitted parents to move ahead with their First Amendment challenge to a school district's rejection of their application for an exemption from mandatory immunization requirements for their school-age daughter. However the court dismissed plaintiffs' equal protection and state law challenges to the refusal to grant an exemption.

Delaware Court Upholds Religious Discrimination Finding Against Department Store

A Delaware state Superior Court has upheld the finding of the state's Human Rights Commission that Boscov's-- a department store chain-- discriminated on religious grounds against two Christians, two Wiccans and a pagan when it cancelled classes they planned to offer as part of the store's October 2005 Campus of Classes. Yesterday's Wilmington News Journal reports on the case. Wednesday's court decision rejected the store's argument that sessions on tarot, talismans, candle magic and the pentagram were called off for lack of diversity. Instead the court affirmed findings of the Human Rights commission that the cancellation stemmed from complaints by members of Capitol Baptist Church. The church's pastor, William Jeffcoat, complained that some of the classes would be taught by practitioners of Wicca, which was "very, very dark".

Virginia Legislators Weigh In On Wm. & Mary Chapel Cross

The battle over how often a cross should be displayed in the chapel at the College of William and Mary continues (see prior posting)-- now in the Virginia legislature, according to yesterday's Virginia Informer. Delegate Robert Marshall, a Republican member of the Virginia General Assembly, this week introduced an amendment to the state budget bill that would have reduced the salary of William and Mary president Gene Nichol by 50% if the cross was not restored to the chapel by May 3. The proposal was defeated 36-58. Earlier, another Delegate introduced an amendment aimed at withholding funds from the school. It would have required that "any building interior or exterior change, alteration or modification shall be restored to its original state with 45 days." That provision was considered too vague, and was removed from consideration. However, the House of Delegates did pass, 83-14, a bill calling for a review board made up of college administrators, students, faculty and alumni to look into the issue. William and Mary president Gene Nichol has already appointed a 14-person committee to address the question of the role of religion at a public university, including the use of the historic Wren Chapel. (W&M News).

Iowa Legislators Disagree On Exemptions From Bullying Policies For Non-Public Schools

Last week (Radio Iowa, Feb. 8), the Iowa House of Representatives passed a bill to require schools to adopt policies to protect students against bullying on the basis of age, color, creed, national origin, race, religion, marital status, sex, sexual orientation, gender identity, physical attributes, physical or mental ability or disability, ancestry, political party preference, political belief, socioeconomic status, or familial status. However, administrators at religious schools raised objections that the bill could open them up to lawsuits if they teach that homosexuality is a sin. So the Iowa House approved an amendment providing that the bill is not intended to affect the way non-public schools teach about religious topics. The Senate however disagreed with this exception, and on Tuesday, by a vote of 36-14, approved a version of the bill without an exclusion for non-public schools. (SF 61). Reporting on developments, Wednesday's Sioux City Journal said that opponents of the House version were concerned that it suggested "that there is a double standard for nonpublic schools". They say the bill is about bullying, not about curriculum.

One Suit Filed, Another Settled, On Equal Use of Public Space By Religious Groups

On Tuesday of this week, Care and Share Ministry filed suit in federal district court in New Jersey (full text of complaint) challenging the policy of South Orange, New Jersey that opens the use of its Village Square for events by public and private non-religious groups, but denies use for events sponsored by religious organizations. (Alliance Defense Fund release.) Care and Share is a Christian group that is seeking to present a family-friendly show of music, skits and puppets. The Associated Press reported on the lawsuit yesterday.

Meanwhile, a suit filed last year against Idaho Springs, Colorado, challenging its refusal to permit use of city council chambers for religious events and meetings-- while permitting use by secular non-profit and community groups-- has been settled. Alliance Defense Fund announced yesterday that the city is building a new room in city hall that can be used by the public as a meeting room-- and there will be no discrimination against use by religious groups. The group sponsoring National Day of Prayer observances that instituted the complaint last year has already reserved the new room for this year's observance.

Thursday, February 15, 2007

Utah Proposed Free Exercise Bill Pulled From Legislative Agenda

In Utah, state Sen. Chris Buttars has pulled back his proposed Free Exercise of Religion Without Government Interference bill. (See prior posting.) Today's Salt Lake Tribune says that the bill will be studied further before it is reintroduced. The University of Utah had expressed concern that the bill would open them to lawsuits by extreme religious groups. Buttars is seeking a bill that will allow students to wear clothing with religious messages and caroling groups to sing at city hall, but, the paper says, "he doesn't want to open the door to female genital mutilation or any other religious practice he considers extreme."

7th Circuit Upholds State School's Exclusion of Uninvited Evangelist

Yesterday, in Gilles v. Blanchard, (7th Cir., Feb. 14, 2007), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Richard Posner upheld the refusal of a state university-- Indiana's Vincennes Univeristy-- to permit traveling campus evangelist James Gilles from preaching uninvited from the library lawn in the middle of campus. The opinion refused to invalidate the university's practice of limiting speeches on the lawn those that have been invited onto campus by a faculty member or student group.

Rejecting an analysis that would categorize the library lawn as a "limited public forum", Judge Posner wrote: "The issue more simply posed is whether a university should be able to bar uninvited speakers under a policy that by decentralizing the invitation process assures nondiscrimination, and a reasonable diversity of viewpoints consistent with the university’s autonomy and right of self-governance.... [T]he Constitution does not commit a university that allows a faculty member or student group to invite a professor of theology to give a talk on campus also to invite Brother Jim and anyone else who would like to use, however worthily, the university’s facilities as his soapbox." [Thanks to Alliance Alert for the lead.]

Vandal Damages Radio Station Tower With Wooden Cross

Yesterday's Pensacola (FL) News Journal reports on a strange case of vandalism in Milton, Florida. Radio station WCEM discovered that its broadcast signal was weaker than it should be. After much investigation, the station's owner discovered that someone had placed a wooden cross on top of the station's 200-foot tower. Repairing the tower to restore its full power will cost thousands of dollars. The station's current owner, Baron of Fulwood, who is Jewish, acquired the 1,000 watt station in 2005. The station plays music from the 1950's, 60's, and 70's. Twice a day, however, it features a Biblical reading from Deuteronomy 4: 6-9, in both Hebrew and English. Fulwood -- who always wears a kippah (head covering) -- says he has received a number of anti-Semitic phone calls since buying the radio station. As of now, Milton Police Chief Greg Brand said he is treating the incident as vandalism and not as a hate crime.

Falun Gong Controversy Finds Way Into U.S. Chinese New Year Celebrations

The controversy between China and the Falun Gong has found its way into the United States in two separate ways this week. In San Francisco yesterday, Superior Court Judge Patrick Mahoney dismissed a lawsuit brought by Falun Gong against the city of San Francisco growing out of Falun Gong's exclusion last year and this year from San Francisco's Chinese New Year's parade. The parade is sponsored by the Chinese Chamber of Commerce. According to yesterday's San Francisco Chronicle, the lawsuit claimed that the city's contribution of funds to the parade, along with its provision of police protection and other services violated the rights of Falun Gong. The city's Human Rights Commission, however, found that Falun Gong was excluded because it failed to follow parade rules against political activity during the parade. Falun Gong claims that Chinese businesses in San Francisco have given in to pressure from the government of China. (See prior related posting.)

Meanwhile this year's Chinese New Year celebration in New York has been denounced by the government of China because of supposed ties to the Falun Gong. Yesterday's International Herald Tribune reports that the "Chinese New Year Spectacular" that opened yesterday at Radio City Music Hall contains some segments that refer to Falun Gong and its persecution in China. Jian Huali, acting spokesman for the Chinese Embassy in Washington, said: "We strongly oppose the show because Falun Gong is an evil cult. This is not a real Chinese culture show. It's a very politicized show."

Connecticut Synagogue Loses Zoning Appeal

In Cross Street, LLC v. Zoning Board of Appeals of the Town of Westport, 2007 Conn. Super. LEXIS 253 (CN Super., Jan. 26, 2007), a Connecticut trial court upheld a ruling by the Zoning Board of Appeals denying a zoning variance for construction of an Orthodox synagogue. The synagogue, as proposed, would not have the required number of parking spaces. The court held that denial of the variance did not violate either the federal Religious Land Use and Institutionalized Persons Act or Connecticut's Religious Freedom Act.

8th Circuit Denies Asylum To Russian Jewish Couple Who Claim Persecution

Yesterday the U.S. 8th Circuit Court of Appeals upheld the denial of an asylum claim by a Russian Jewish couple who have been in the United States for 15 years. In Pavlovich v. Gonzales, (8th Cir., Feb. 14, 2007), the court upheld an Immigration Judge's decision ordering removal of the couple to Russia, or alternatively to Latvia, and granting voluntary departure. The couple who originally lived in the portion of the Soviet Union that is now Russia, and who later moved to Latvia, claimed that they should be granted asylum in the United States because of past persecution of them in Latvia because of their Jewish heritage, and because of a well founded fear of future persecution because of anti-Semitism in both Russia and Latvia.

As to past persecution, the court held that neither the husband or wife "was ever arrested, detained, or questioned by Latvian authorities. Employment discrimination, anti-Semitic flyers, and harassment by private citizens -- even threats and random acts of violence -- are deplorable but do not compel a finding of past persecution." As to a fear of future persecution, the court found that the Immigration Judge was permitted to "reasonably rely on State Department reports assessing the likelihood of future persecution." The court refused to overule the Immigration Judge based on other reports of anti-Semitism in Russia and Latvia.

In concluding, Chief Judge Loken's opinion for the court said: " To us, it seems contrary to the traditions of this great Nation to remove an elderly, law-abiding couple who have spent fifteen productive years in this country to Russia, a country where they have not lived for nearly forty years and whose people do not yet enjoy our levels of economic, political, and religious freedom. But Congress has delegated this judgment to the Executive Branch." Yesterday's Minneapolis Star Tribune reported on the decision.

Courthouse Bible Study Group Defended

St. Charles County, Missouri officials have been asked by a local attorney to end a voluntary Bible study group that meets each week in the county courthouse. Judges, lawyers, and other courthouse employees began the study group-- led by Associate Circuit Judge Matthew E.P. Thornhill-- in 2002. In a press release issued yesterday, the American Center for Law and Justice defended the right of the Bible group to meet.

In a 9-page letter to St. Charles County Executive Steve Ehlmann, ACLJ argued: "An objective observer of the Bible study could not conclude that the government was endorsing the content of the group's private speech. This is not a case where any government employee or private citizen is required to participate in religious activity or where the speech is part of an official work-related meeting. There is no suggestion that employees have been harassed or intimidated or that the Bible study has disrupted the efficient performance of governmental functions. It is clear that the First Amendment prohibits the censorship of religious speech solely because someone may find that speech 'offensive.'"

Wednesday, February 14, 2007

8th Circuit Arguments Held On Faith-Based Prison Program; MP3 Version Available

The St. Louis Post Dispatch reports on yesterday's oral arguments in the U.S. 8th Circuit Court of Appeals in Americans United for Separation of Church and State v. Prison Fellowship Ministries, a case in which an Iowa district court held that InnerChange, a faith-based prison rehabilitation program financed with state funds, violates the Establishment Clause. The 3-judge panel in the Court of Appeals included retired U.S. Supreme Court Justice Sandra Day O'Connor. (See prior posting.) About 15 seconds into his argument, O'Connor cut off retired Iowa deputy attorney general, Gordon Allen to ask a question about recidivism rates in Iowa and in other states. An MP3 file of yesterday's entire oral argument can be played or downloaded from the 8th Circuit's website.

UPDATE: A fuller account of the oral arguments is available at this post from Anne Farris at The Roundtable [via Blog from the Capitol]. And here is a posting at Knippenblog (Joe Knippenberg) with links to the briefs and recent op-ed pieces on the case.

Sharia Mediation Board Created In Western Australia

In the Australian state of Western Australia, the state's Islamic Council has created a board of imams to mediate civil disputes between Muslims using Islamic legal principles. Perth Now reports on the developments. A spokesman for the non-profit Ethnic Communities Council said that the new Muslim board would be required report to the federal attorney-general to make sure that its decisions using Sharia do not conflict with Australian law.

Azerbaijan Considering More Restrictive Religious Freedom Law

Interfax today reports that Azerbaijan's Parliament is preparing to enact a more restrictive version of the country's 1992 Law on Freedom of Religious Belief. A member of Parliament was quoted as saying: "Missionary organizations of unconventional religious movements have intensified their activities in Azerbaijan and some of them are with radical views. These organizations are trying to entice Azeri citizens to join their ranks. In a number of cases such activities of these organizations are the result of the flaws in the legislation, which is why a new version of the law freedom of religion is now needed."

Yemeni Editor Gives Inside Look At Paper's Decision To Run Controversial Caricatures

On the first anniversary of the government-ordered suspension of the paper for publishing controversial Danish caricatures of the Prophet Muhammad, yesterday's Yemen Observer carried a fascinating account of last year's events by the newspaper's former editor, Mohammed al-Asaadi. He described the internal debate within the paper's editorial staff on the running of the drawings and his 12 days in jail that followed. He said: "I don’t think that we were stupid, but rather, that we were too rational at the wrong moment."

Kansas Reinstates Mainstream Science Guidelines On Evolution

The Kansas State Board of Education has once again changed the state's guidelines for teaching science in the public schools, reinstating a mainstream scientific approach on teaching of evolution. Today's Lawrence (KA) Journal-World reports that the move comes after a block of Democrats and moderate Republicans won control of the school board in November. (See prior posting.) By a 6-4 vote on Tuesday, the Board eliminated its earlier standards that encouraged the teaching of intelligent design. (See prior posting.) The new guidelines define science as a search for "natural explanations" of observations in the universe. The Board removed language suggesting that key evolutionary concepts were controversial and were challenged by new research. This is the fifth time in eight years that the state's science standards have been changed, and state law mandates updating of the standards again by 2014-- though changes could come sooner depending on the make-up of the board in the future.

DC Circuit Rejects Constitutional Challenge To Freezing Of Islamic Group's Assets

In Islamic American Relief Agency v. Gonzales, (DC Cir., Feb. 13, 2007), the U.S. Court of Appeals for the D.C. Circuit upheld the federal government's blocking of the assets of IARA-USA which the government found to be a branch of another organization that had been designated as supporting global terrorism. In a portion of its opinion, the court rejected arguments by IARA-USA that blocking of its assets violated its Fifth Amendment right to equal protection and its First Amendment rights of association and free exercise of religion. The court rejected IARA-USA's claim that it had been singled out because it was a Muslim organization. The court held that the blocking does not inhibit associational activities other than financing and does not punish advocacy of IARA-USA's goals. It also rejected the argument that blocking of funds substantially burdens the religious exercise of IARA-USA's members because they intended their donations to fulfill their religious obligation to engage in humanitarian charitable giving. Quoting an earlier case it had decided, the court said: "There is no free exercise right to fund terrorists." A story yesterday from the Associated Press reported on the decision. [Thanks to How Appealing for the lead.]

Free Exercise Claim To Arrest Method Proceeds

In Stroman v. Lower Merion Twp., 2007 U.S. Dist. LEXIS 9408 (ED PA, Feb. 7, 2007), two plaintiffs sued challenging the methods used by police officers in arresting them. One of the plaintiffs, Janice Myers, claimed that a police officer searched her by putting his hands all over her body, "including on her private parts and under her religious garb and undergarments," even though she had asked to be searched by a female officer. The court rejected her federal Religious Freedom Restoration Act claim because that statute has been held unconstitutional as applied to states and localities. However the court permitted her to proceed with a claim that Marion Township tolerated a policy of use of police power in violation of the Free Exercise Clause, and to proceed with claims against individual officers for their actions.

Tuesday, February 13, 2007

Congressional Interfaith Caucus Suggested

Last Friday, an essay by four clergy in the Washington Post suggested that the new Congress needs an Interfaith Caucus that would meet regularly to discuss the positive role that religion plays in people's lives and in communities, and to explore how religion is misused by demagogues around the world.

Suit Filed Over William & Mary Chapel Cross

The controversy (see prior posting) over when a cross will be displayed in College of William and Mary's Wren Chapel has now moved into the courts. Today's Hampton Roads Daily Press reports that a William and Mary Law School graduate has filed a federal lawsuit claiming that the College is restricting the practice of religion by removing the cross from permanent display. Charles Haynes, senior scholar at the First Amendment Center, says the suit is frivolous. The Daily Press reports that the plaintiff, George R. Leach, was disbarred in 2003, but is seeking reinstatement.

Christian School Challenges Exclusion From League

In San Antonio, Texas, Cornerstone Christian Schools has filed suit in federal district court challenging the decision by the University Interscholastic League to exclude the school from membership, according to today's San Antonio Express-News. The school is eligible only for membership in the Texas Association of Private and Parochial Schools because of the size of its enrollment. Cornerstone's attorney Jonathan Pauerstein said:"We contend that the UIL, by denying membership to private schools, denies access to the UIL's programs to the children of parents who seek a religious education for them. Here, we have a state-created organization denying participation to citizens who have made choices based on religion."

Idaho Legislator Told To Redraft Proposed Workers Comp Exemption For Clergy

In the Idaho legislature, the State Affairs Committee this week asked Rep. Dick Harwood to redraft a bill he had introduced. Harwood's intent was apparently to exempt churches from paying for Workers Compensation insurance for their clergy. His bill, however, broadly exempted churches from paying workers' compensation for any employee. This would have included thrift store workers, janitors, secretaries and other staff. Yesterday's New West Politics reports that committee chair Tom Loertscher appointed Rep. Lynn Luker, an attorney, to help Harwood with revising the bill's language.

Churches Complain About Sign Limits

Churches in Noblesville, Indiana complain that the city's sign ordinance infringes their religious freedom, according to a story in today's Noblesville Ledger. The ordinance limits all businesses, non-profit organizations and churches to displaying one banner per year, for a period of up to 4 weeks. Churches say this limits them in advertising church events, and even requires them to decide whether Christmas or Easter is the most important to advertise. Mayor John Ditslear said the city's planning staff is looking at whether the limits should be liberalized for churches.

Divorce Bills In Maryland Legislature Would Help Jewish Women

Late last month and earlier this month, bills were introduced into the Maryland state House (HB 324) and Senate (SB 533) that are designed to assist Jewish women in obtaining a religious divorce (get) from a recalcitrant husband. Without a religious divorce, under Jewish law the wife is unable to remarry. The bills would require anyone filing a complaint for divorce or annulment with a civil court in Maryland to also file an affidavit stating that the person has taken all steps within his control to remove all religious barriers to remarriage by the other party. Courts will not be able to order a husband to grant his wife a get. However, the civil court will not be able to enter a divorce decree until the affidavit is filed.

The Feb. 2 edition of the Forward carried an article on the proposed legislation that is designed to deal with the problem of agunot-- women trapped by their husbands' intransigence. However, many question the constitutionality of the proposed law-- and of a similar one already on the books in New York (DRL Sec. 253). Marc Stern, general counsel of the American Jewish Congress, said: "This is designed exclusively to deal with a religious problem, and it conditions a civil benefit-- a divorce-- on solving a religious problem. We don't think you can do that."

The Maryland Senate has scheduled its first hearing on the proposed legislation for Feb. 22.

Christian University Claims BFOQ Exemption In Firing Transgendered Faculty Member

Yesterday's Workplace Prof Blog discusses the legal issues involved in a Title VII employment discrimination claim brought by Professor Julie Marie Nemecek who was fired as assistant dean and Associate Professor at Michigan's Spring Arbor University. The school, that describes itself as having a "total commitment to Jesus Christ as its perspective for learning", dismissed Nemecek because she is transgendered and is transitioning from male to female. In response to Nemecek's EEOC complaint, the University said it was relying on the "bona fide occupational qualification" exception to Title VII. 42 USC 2000e-2(e) provides an exemption from the Act's prohibitions on discrimination on the basis of religion or gender where religion or sex is "a bona fide occupational qualification reasonably necessary to the normal operation of" the institution.

In a press release, it said: "We expect our faculty to model Christian character as an example for our students. Faculty who 'persist with activities that are inconsistent with the Christian faith'" are subject to being dismissed.

Monday, February 12, 2007

Arkansas Legislators Don't Like Thomas Paine's Views On Religion

The Arkansas House of Representatives last Thursday dealt a surprising defeat to a bill designating January 29 as "Thomas Paine Day" (HB 1317). Today's Associated Press reports that Democratic Rep. Lindsley Smith had wanted Arkansas to join nine other states that honor the Revolutionary War figure. However, Republican Rep. Sid Rosenbaum raised questions. Quoting from Paine's book, The Age of Reason, Rosenbaum said: "He did some good things for the nation, but the book that he wrote was anti-Christian and anti-Jewish. I don’t think we should be passing things out like this without at least debating it and letting people in the House know what we're voting on." Thursday's vote was 46-20, but the bill needed 51 votes to pass.