Saturday, June 30, 2007
Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom, (June 2007, U. of Chicago, Public Law Working Paper No. 167).
Ira C. Lupu & Robert W Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, (West Virginia Law Review, Vol. 110, 2007).
Joshua D. Dunlap, When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception, (82 Notre Dame Law Review 2005 (2007)).
Patrick McKinley Brennan, The Decreasing Ontological Density of the State in Catholic Social Doctrine, (Villinova Univ. Working Paper Series, 2007).
Tom Lewis, What Not To Wear: Religious Rights, the European Court, and the Margin of Appreciation, 56 International & Comparative Law Quarterly 395-414 (2007).
David Morris Phillips, The Unexplored Option: Jewish Settlements in a Palestinian State, 25 Penn State International Law Review 75-205 (2006).
Reuven (Ruvi) Ziegler, The French "Headscarves Ban": Intolerance or Necessity?, 40 John Marshall Law Review 235-266 (2006).
Colloquium: Religion and Immigration. Articles by Amelia J. Uelmen, Michael Scaperlands, Stephen H. Legomsky, Elizabeth McCormick, Patrick McCormick, Marta Vides Saade, Kathryn A. Lee and Michael J. Churgin. 83 University of Detroit Mercy Law Review 829-953 (2006).
Symposium: Law and Religion. McElroy Lecture by Cass R. Sunstein; articles by Deniz Coskun, Peter Cumper, Peter Edge, Silvio Ferrari, Charles I. Lugosi, Asher Maoz, Kurt Martens, Renata Uitz and Howard J. Vogel. 83 University of Detroit Mercy Law Review 567-827 (2006).
Friday, June 29, 2007
In Nuha Saabiraah El v. City of New York, 2007 U.S. Dist. LEXIS 46443 (SDNY, June 26, 2007), a New York federal district court dismissed on res judicata grounds a claim by a fired employee of the New York Department of Corrections. Plaintiff claimed that her dismissal violated her 1st and 14th Amendment and her statutory rights because the Department of Corrections, in disciplining her, was motivated by the fact that she was associated with the Moorish-American faith-- a group that DOC thought posed security concerns.
We conclude that a refusal to rezone does not constitute an "individualized assessment," and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is applicable, the building of an apartment complex does not constitute a "religious exercise," and even if it does constitute a "religious exercise," the city of Jackson’s refusal to rezone plaintiff's property did not substantially burden plaintiff's religious exercise, and even if it did substantially burden plaintiff's religious exercise, the imposition of that burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest.Two justices wrote concurring opinions urging reversal on narrower grounds. Yesterday's Jackson Citizen Patriot reported on the decision. [Thanks to Brian D. Wassom for the lead.]
Thursday, June 28, 2007
The greatest challenge facing people of conscience is to help the forces of moderation win the great struggle against extremism that is now playing out across the broader Middle East. We've seen the expansion of the concept of religious freedom and individual rights in every region of the world -- except one. In the Middle East, we have seen instead the rise of a group of extremists who seek to use religion as a path to power and a means of domination.The President also announced that, for the first time, he would appoint a special envoy to the Organization of the Islamic Conference as part of the country's efforts to reach out to Muslim communities around the world. A White House "Fact Sheet" emphasized the opportunity that exists to help forces of moderation oppose radicals who purport to act in the name of Islam.
Wednesday, June 27, 2007
UPDATE: In an unusual move, Life Site News on Thursday issued the following statement:
The LifeSiteNews.com story published Tuesday on the jailing of Pastor Lerle in Germany has been retracted after LifeSiteNews.com was informed that we were working with false information from trusted news sources. While Pastor Lerle has in the past been jailed for anti-abortion activities his current one year imprisonment stemmed solely from charges of holocaust denial and not from comparing abortion to the Nazi Holocaust as we erroneously reported Tuesday.[Thanks to Patrick Gallagher for the update lead.]
The court also rejected arguments by St. James Parish that its free speech and free exercise rights were being violated. The court said that the lawsuit: "is a property dispute -- basically over who controls a particular church building in Newport Beach -- and does not arise out of some desire on the part of the general church to litigate the free exercise rights of the local congregation. They are free to disaffiliate just so long as they do not try to take the parish property with them."
Reporting on the decision, yesterday's Orange County Register points out that at issue was the decision of St. James Parish to split off from the Episcopal Church in a dispute over scriptural doctrine and homosexuality. The Court of Appeals emphasized, however, that the reason for the parish's decision to break away was irrelevant to its decision.
UPDATE: In an unpublished opinion filed the same day, the court relied on its analysis relating to St. James Parish to reach the same result as to two other breakaway parishes-- All Saints in Long Beach, and St. David's in North Hollywood. Episcopal Church Cases II, (CA Ct. App., June 25, 2007). [Thanks to Jeffrey Hassler, via Religionlaw listserv for the lead.]
In suburban Minneapolis, Minnesota, Chris Lind, employed by Prior Lake High School as a hallway and parking lot supervisor claims that his firing violated his religious freedom by firing him for talking with students about their sexual orientation, including the Biblical view of homosexuality. The school board says that Lind was disciplined for failing to separate his role as supervisor from that of friend of students. Lind has threatened to sue. (Minneapolis Star Tribune).
Finally, in Springfield, Missouri, pharmacist Todd Campbell has filed suit against Nitelines USA and Fort Leonard Wood after he was fired from his job as a hospital pharmacist for refusing to provide proof that he had been vaccinated. Campbell argues that he is exempt from vaccination requirements because of his religion, which he says is "Hebrew". (AP)
Tuesday, June 26, 2007
Monday, June 25, 2007
Justice Thomas' concurring opinion argued that the Tinker case-- the basis for protection of the speech rights of school students-- should be overruled. Justices Alito and Kennedy joined the majority opinion "on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as 'the wisdom of the war on drugs or of legalizing marijuana for medicinal use.'"
Justice Breyer argued that the Court should not have gotten to the merits, but should have merely held that defendants' had qualified immunity from plaintiff's claim for monetary damages. CNN among others reports on today's decision.
Justice Stevens dissented, joined by Justices Souter and Ginsburg. Stevens wrote: "I agree with the Court that the principal should not beheld liable for pulling down Frederick’s banner.... I would hold, however, that the school’s interest in protecting its students from exposure to speech 'reasonably regarded as promoting illegal drug use,' ... cannot justify disciplining Frederick for his attempt to make an ambiguous statement to a television audience simply because it contained an oblique reference to drugs."
The narrow grounds on which the Court decided the case is unlikely to make it a case which has substantial implications for student religious speech-- a concern that some had expressed as the case was pending.
US Supreme Court Holds Taxpayers Lack Standing To Challenge White House Faith-Based Initiative Expenditures
The plurality opinion was written by Justice Alito, who was joined by Chief Justice Roberts and Justice Kennedy. Here are excerpts from the Court's syllabus of that opinion:
The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances....Justice Kennedy also wrote a separate concurrence in which he said: "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."
Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast-- the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined....
Taking the Circuit’s zero-marginal-cost test literally-- i.e., that any marginal cost greater than zero suffices-- taxpayers might well have standing to challenge some (and perhaps many) speeches by Government officials. At a minimum, that approach would create difficult and uncomfortable line-drawing problems.
Justice Scalia, joined by Justice Thomas, concurred. Here are excerpts from the syllabus of that concurrence:
A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing.... Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.Justice Souter wrote a dissent in which Justices Stevens, Ginsburg and Breyer joined. They said, in part:
Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent....
Daniel O. Conkle, The Establishment Clause and Religious Expression in Governmental Settings: Four Variables in Search of a Standard , (West Virginia Law Review, Vol. 110, No. 1, 2007).
Richard L. Kaplan, Honoring Our Parents: Applying the Biblical Imperative In the Context of Long-Term Care, 21 Notre Dame Journal of Law, Ethics & Public Policy 493-515 (2007).
Kenneth L. Marcus, Anti-Zionism as Racism: Campus Anti-Semitism and the Civil Rights Act of 1964, 15 William & Mary Bill of Rights Journal 837-891 (2007).
Selected Papers from the Terrence J. Murphy Institute Conference. Public Policy, Prudential Judgment and the Catholic Social Tradition. Articles by Charles M. A. Clark, R. Mary Hayden Lemmons, Robert K. Vischer and Andrew Yuengert. 4 University of St. Thomas Law Journal 1-86 (2006).
Peter Irons, God on Trial: Dispatches from America's Religious Battlefields (Viking, May 2007), reviewed by AP.
Sunday, June 24, 2007
UPDATE: Former Reagan White House aide Jeffrey Lord, writing in Monday's issue of The American Spectator, takes the UCC to task, claiming that Obama's speech crossed the line of permissible political activity by non-profit groups. His strongly worded critique argues that Obama's long-scheduled appearance should have been cancelled after he became a candidate in the Democratic presidential race.
UPDATE: Rev. Barry Lynn, Director of Americans United for Separation of Church and State, says that Obama's appearance should not be seen as creating problems under the Tax Code. He says that Obama's reference to his Presidential bid did not turn his appearance into an endorsement from UCC.
Saturday, June 23, 2007
In Smith v. McDonough, 2007 U.S. Dist. LEXIS 44577 (MD FL, June 20, 2007), a Florida federal district court dismissed as frivolous a free exercise challenge to grooming regulations of the Florida Department of Corrections. The challenge was filed by an inmate who claimed to be a practicing Rastafarian whose religious beliefs require him to wear a beard and long hair.
In McCree v. Pocock, 2007 U.S. Dist. LEXIS 44594 (ND GA, June 19, 2007), a Muslim prisoner claimed that his rights under RLUIPA were violated when prison officials refused to permit him to transfer between pods on Fridays in order to participate in Jumu'ah prayers. A Georgia federal district court refused to grant summary judgment for either party, holding that "a genuine issue of fact exists as to whether the Defendant has engaged in the least restrictive means of furthering its compelling government interest in the safety and security of its facility. If the Plaintiff is able to demonstrate that Jumu'ah requires an Imam or at least two other Muslims, the Defendant must prove that its policy of prohibiting the transfer of Muslims on Fridays and refusing to place the Plaintiff in a housing unit with at least two other Muslims is the least restrictive means of furthering its compelling interest."
In Singleton v. Morales, 2007 U.S. App. LEXIS 13931 (9th Cir., June 11, 2007), the 9th Circuit in a brief opinion affirmed a district court decision rejecting a Muslim prisoner's free exercise claim because the prisoner "did not raise a genuine issue of material fact as to whether his Koran was so damaged that he was prevented from practicing his religion." The prisoner failed to exhaust his administrative remedies on another claim-- that his Koran had been confiscated. (See prior related posting.)
In Washington v. Fannon, 2007 U.S. Dist. LEXIS 42860 (ED CA, June 13, 2007), a California federal Magistrate Judge recommended rejection of a free exercise claim by a Muslim prisoner who claimed he was prevented from participating in the Ramadan fast when officers removed food from his Ramadan food tray. The only evidence in the record involved failure to receive a cup of coleslaw on one occasion.
In reaching its conclusion, the court rejected arguments that plaintiff lacked standing and that the case was moot because the union had ultimately made accommodations for Katter. The court also recognized that its action does not assure that Katter will be awarded an exemption under Ohio law, but that she may well be entitled to accommodation under Title VII of the federal 1964 Civil Rights Act.
I also made it very clear that in order for relations to grow deeper that it's important for our friends to have a strong commitment to human rights and freedom and democracy. I explained my strong belief that societies are enriched when people are allowed to express themselves freely or worship freely.In his response, Triet said:
Mr. President and I also had direct and open exchange of views on a matter that we may different [sic], especially on matters related to religion and human rights. And our approach is that we would increase our dialogue in order to have a better understanding of each other. And we are also determined not to let those differences afflict our overall, larger interest.Today's Washington Post reports on the two leaders' exchange. The Associated Press reports that in a private meeting between Triet and senior members of Congress, lawmakers also emphasized their concerns with human rights in Vietnam.
Meanwhile Friday’s Democrat and Chronicle published op-ed pieces on both sides of the issue – one from local ACLU director Gary Pudup and the other from Rev. Robert Brado, a local Christian minister.
Meanwhile, Friday's Washington Post reports that three members of the religious police will stand trial today in the death of a former border patrol guard who died in their custody after being arrested for inviting a woman unrelated to him into his car. Officials are also investigating another death—this one of a man accused of possessing large amounts of alcohol. He died after being handcuffed and beaten by Commission police. Authorities are investigating other incidents as well. [Thanks to Jefferson Gray for the lead.]
UPDATE: The AP reported on Sunday that the trial of the 3 religious police force members has been postponed temporarily because documents presented by the victim's family were incomplete.
Friday, June 22, 2007
Thursday, June 21, 2007
UPDATE: Slidell court officials say they need time to consult an independent constitutional expert on the legality of the Jesus portrait, and so will be unable to meet the one-week deadline for removing it set in the ACLU's letter. The Times-Picayune reports, however, that Joe Cook, state ACLU director, says a lawsuit will be filed if the deadline is not met.
UPDATE: Saturday's Times-Picayune shows a photo of the disputed portrait-- a 16th century Russian Orthodox icon showing Jesus holding a Bible with two quotations in Russian. They are from John 7:24 and Matthew 7:2 that call for judging fairly.
UPDATE: On Monday, the ACLU agreed to extend its deadline for filing suit in order to give Slidell City Judge Jim Lamz more time to study the issue. (June 26 Times-Picayune).
Wednesday, June 20, 2007
Meanwhile, according to today's Royal Oak (MI) Daily Tribune, residents of Berkley, Michigan, are seeking the return to property outside city hall of a nativity scene that was removed last year. Residents are circulating a petition to place an amendment to the city charter on the November ballot that would reverse the decision made last year to remove the creche from city property and display it on a rotating basis at local churches.
Tuesday, June 19, 2007
UPDATE: Today's Fargo Forum reports that religious activists are circulating an initiative petition that would add a section to Fargo's City Code requiring the 10 Commandments monument to remain on public property where it has stood for many years. Meanwhile the city is accepting proposals from private parties who would like to have the monument placed on their land. It will decide on a location on July16.
Monday, June 18, 2007
the TFN Education Fund’s second annual report on the religious right’s powerful influence in Texas. Inside the report you will find:
• A comprehensive history of proposed state legislation relating to key parts of the religious right's agenda, including promoting private school vouchers, opposing responsible sex education, attacking stem cell research and censoring public school textbooks.
• A listing of Texas groups associated with the religious right, including data on each group’s finances, leadership and activities.
• An analysis of the 2006 Texas Republican Party platform
• A compilation of some choice quotes attributed to far-right leaders and elected officials in 2006.
Sunday, June 17, 2007
UPDATE: The AP reported on Monday that Pakistan's parliament passed a resolution demanding Britain withdraw the knighthood awarded to Rushdie, while in the Pakistani city of Multan, students burned the Queen and Rushdie in effigy, and chanted "Kill Him! Kill Him!"
Saturday, June 16, 2007
Carolyn M. Evans, Religious Freedom and Religious Hatred in Democratic Societies, (Univ. of Melbourne Legal Studies Research Paper No. 236).
Carl H. Esbeck, When Accommodations for Religion Violate the Establishment Clause: Regularizing the Supreme Court's Analysis, (West Virginia Law Review, Vol. 110, No. 1, Fall 2007).
Paul E. McGreal, Social Capital in Constitutional Law: The Case of Private Norm Enforcement Through Prayer at Public Occasions, (May 2007).
Ezekial Johnson & James Wright, Are Mormons Bankrupting Utah? Evidence from the Bankruptcy Courts, 40 Suffolk University Law Review 607-639 (2007).
Heba A. Raslan, Shari'a and the Protection of Intellectual Property--the Example of Egypt, 47 IDEA 497-559 (2007).
Symposium on Pope John Paul II and the Law. Foreword by Elizabeth R. Kirk; articles by Gerald J. Beyer, Renato Raffaele Cardinal Martino, Gregory R. Beabout, Mary Catherine Hodes, Michael Lower, Christopher Tollefsen and Most Rev. Nicholas DiMarzio. 21 Notre Dame Journal of Law, Ethics & Public Policy 1-214 (2007).
Judge Harrell, dissenting, argued that "Moersen's position was of a ministerial nature…. A position entailing the performance of religious music, for a church during its religious services, to a religious end cannot possibly be perceived as anything but religious."