Saturday, June 30, 2007

Recent Articles of Interest

From SSRN:
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)).

From Bepress:
Patrick McKinley Brennan, The Decreasing Ontological Density of the State in Catholic Social Doctrine, (Villinova Univ. Working Paper Series, 2007).

From SmartCILP:
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

Businessman Challenges Indonesia's Limits On Polygamy

Indonesian law permits polygamy only where a first wife is childless, or terminally ill or unable to fulfill her sexual obligations and where that wife gives her consent. However recently a number of prominent Indonesians, claiming that Islam allows up to four wives, have ignored the legal restrictions. Now, according to the Sydney, Australia Herald, an Indonesian businessman has begun a court challenge to Indonesia's restrictions on polygamy. Muhammad Insa says that his right to religious freedom is being restricted by the Marriage Act (background), and has filed suit in the Constitutional Court challenging the Marriage Office's refusal to permit him to take a second wife without getting his present wife's agreement.

9th Circuit Decides Burden of Proof In Reverse Religious Discrimination Case

In a 9th Circuit case from last month, the court decided on the appropriate burden that a plaintiff must carry to avoid dismissal before trial in a case alleging "reverse" religious discrimination under Title VII. In Noyes v. Kelly Services, (9th Cir., May 29, 2007), a former Kelly Services employee alleged that her supervisor repeatedly favored and promoted his coreligionists-- members of the Fellowship of Friends-- and passed over Noyes for promotion because she was not share those religious beliefs. The court held that once the employer articulated a non-discriminatory reason to explain a prima facie showing of discrimination, the plaintiff needed to come forward with proof that the explanation was a pretext. At the summary judgment stage, plaintiff can raise enough of an issue that the case must go to trial if she presents either direct evidence of discrimination or indirect evidence that undercuts the credibility of the employer's explanation.

Georgia Officials Exclude Muslim Woman Wearing Hijab From Courtroom

In a press release yesterday, the Council on American-Islamic Relations said that security officers at the Valdosta, Georgia Municipal Court refused to allow a Muslim woman to enter the courtroom wearing her hijab (headscarf). The woman decided to plead nolo contendere to her speeding ticket, after being informed that court rules would prevent her from wearing her head covering into the courtroom at any time. Later, through the clerk of courts, Judge Vernita Lee Bender apologized, but apparently said "we have rules that everyone has to follow". CAIR has written Georgia's Attorney General asking him to take appropriate steps to prevent this kind of religious discrimination, which CAIR says violates federal civil rights protections and is inconsistent with the Georgia Code of Judicial Conduct.

Two Plaintiffs Lose Religious Discrimination Suits

Two Title VII employment discrimination decisions alleging religious bias were handed down this week. In Postell v. Greene County Hospital Authority, 2007 U.S. Dist. LEXIS 46593 (MD GA, June 27, 2007), a Georgia federal district court held that a nurse who had been fired had failed to prove religious discrimination, despite a letter from her supervisor that said: "You had an incredible opportunity to shine as a manager and most importantly as a Christian and you failed."

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.

Michigan Supreme Court Rejects Church's RLUIPA Claim

On Wednesday, in Greater Bible Way Temple of Jackson v. City of Jackson, (MI Sup. Ct., June 27, 2007), the Michigan Supreme Court rejected a claim by Greater Bible Way Temple that Jackson, Michigan violated the Religious Land Use and Institutionalized Person's Act by refusing to rezone property on which the church wished to build an assisted living apartment complex. In a rather broad-based reversal of the court of appeals (see prior posting), the Supreme Court said:
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.]

City Amends Noise Ordinance and Settles Preacher's Challenge to Restrictions

The Jacksonville, Alabama News reported Wednesday that the city of Jacksonville has settled a civil rights lawsuit brought against it by Rev. Wesley Sewell challenging the city's restrictions on use of loudspeakers and its permit ordinance. (See prior posting.) The city will pay Sewell $500 in damages and $9500 in attorneys' fees. The settlement came after the city changed its loudspeaker ordinance to extend from 10 feet to 30 feet the distance sounds can project without violating the anti-noise ordinance.

British Sources Say Tony Blair Will Convert To Cathoicism

Largely overlooked in the U.S. media are reports out of Britain last week that Tony Blair, who has just resigned as Britain's prime minister, will convert to Catholicism. The Guardian is among those papers reporting on Blair's apparent decision. Blair's wife is Catholic and his children have been raised as Catholics. However, he has held off formal conversion apparently for political reasons. While there is not a specific ban on the prime minister being a Catholic, British law does bar the king or queen from becoming Catholic or marrying a Catholic. Christian Today last week reported that Blair's meeting last Saturday with Pope Benedict XVI was in part in preparation for his conversion. Commenting today on Blair's move, Ireland's Southern Star says that the remaining prohibitions on British monarchs embracing Catholicism, which stem from the 1701 Act of Settlement, violate the European Convention on Human Rights, Sec. I, Art. 9. In an interesting aside, the Southern Star article refers to the Old Bailey website that links to records of over 100,000 trials that took place between 1674 and 1834, including "cases of 'notorious papists' who suffered appalling death sentences for offences such as saying mass."

Moldova's President Rejects Parliament's Law On Religious Groups

Itar-Tass reported yesterday that Moldova's President, Vladimir Voronin, has refused to sign a new law on religious faiths passed by Parliament last month. He returned it to parliament for revisions, heeding objections raised by the Moldovan Orthodox archdiocese. Orthodox priests object that the law does not distinguish traditional denominations from newer religions that have multiplied in Moldova in recent years. They also say that the law does not distinguish pseudo-religious and commercial cults from mainstream religions. A long-standing dispute exists over whether the Moldovan Orthodox Church is a legitimate religious group. The Russian Orthodox Church says it is not, but Moldova granted it official recognition in 2002 after a decision of the European Court of Human Rights called for that step to be taken. (Background).

Fired University Chaplain Now Asserts A Title IX Discrimination Claim

After losing her attempt to get the U.S. Supreme Court to review her Title VII gender discrimination claims (see prior posting), former Gannon University chaplain, Lynette Petruska, has asked a federal district judge to permit her to file a claim under Title IX of the 1964 Civil rights Act. That provision requires gender equality by schools that receive federal funding. Petruska's Title VII claim was rejected under the "ministerial exception" doctrine, and at issue will be whether the same exception applies in Title IX cases. Yesterday's Philadelphia Daily News reports that Petruska, a former Catholic nun, is now an attorney in St. Louis.

Thursday, June 28, 2007

President Helps Rededicate DC's Islamic Center

Yesterday, President George W. Bush participated in the rededication of Washington, DC's Islamic Center. The rededication took place 50 years after President Eisenhower attended the original dedication of the Center. In his remarks (full text), the President said:
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.

British Schools Face Problems In Attempt To Serve Halal Lunches

Two local Councils in Britain find themselves in the middle of a dispute in the Islamic community over which bodies are the appropriate certifiers of Halal meat. Schools in the localities have halal meat on their lunch menus, but have recently changed their meat supplier. This Is Lancashire yesterday reported that the Lancashire Council of Mosques has urged parents to have their children select vegetarian options or take their own lunches until the controversy is resolved. The new supplier gets its meat from New Zealand, and the meat is certified by the non-profit Halal Food Authority. Salim Mulla, secretary of the Lancashire Council of Mosques, says they want the meat certified instead by the Halal Monitoring Committee. Lancashire County Council has replaced meat with an alternative option until the situation is resolved, while Blackburn with Darwen Borough Council is keeping halal meat on the menu, but is meeting with mosque council leaders to resolve any problems.

Judge Refuses To Keep Media Out of Imams' Civil Rights Trial

Omar T. Mohammedi, a New York attorney for the six imams who have filed a civil rights action after they were removed from a US Airways flight at the Minneapolis airport, has lost his bid to reduce media access to the trial proceedings. Mohammedi says that he and his clients have received anonymous death threats after inaccurate media coverage of the lawsuit. The Associated Press yesterday reported that U.S. District Judge Ann Montgomery refused Mohammedi's request that members of the media be removed from an electronic distribution list, that they be excluded from attending hearings in the case and that proceedings in the case be held in closed session. The judge also told Mohammedi that future communications in the case should be filed through the court's electronic filing system, instead submitting requests off the record as Mohammedi had done in seeking less media involvement.

New Abuse Charges Against Saudi Arabia's Commission for Prevention of Vice

The Associated Press reported yesterday that new charges of police brutality have been raised against an officer in Saudi Arabia's Commission for the Propagation of Virtue and the Prevention of Vice. Last week, three officers were charged with involvement in the death of a detained border patrol guard. (See prior posting.) The new charges involve last month's death in detention of Sulaiman al-Huraisi who was taken into custody after a raid on his house because he was suspected of having large amounts of alcohol. Alcohol is illegal in Saudi Arabia. The governor of Riyadh said that several officers who were not part of the official team charged with making the raid nevertheless took part in it. One of those individuals severely beat al-Huraisi.

School Board Debates Religious Released Time Program

Canastota, New York's Board of Education on Tuesday debated the extent to which it should release students who wish to attend religious education classes at the end of the school day. Yesterday's Oneida Dispatch reports that St. Agatha's Church wants the school to bus students to classes at the church for the last hour of the school day. School officials prefer releasing students only after the school day is over. Supporters of the religious education program say that moving the classes to after normal school hours will significantly reduce student attendance at them.

British Judges Reach Out To Muslim Community

A report from Islam Online reprinted by Turkish Weekly discusses efforts by a group of 45 judges in England and Wales to reach out to local religious minorities, especially Muslims, in order to heighten their confidence in the judicial system. Members of the group are known as Ethnic Minority Liaison Judges (EMLJ). They visit mosques and schools and arrange for visits to the courts. Their goal is both to get people to understand the judicial system and to encourage them to apply for jobs in the courts. Earlier this year, EMLJ released its annual report for 2005-06.

Wednesday, June 27, 2007

Church-State Conflict Over Jesus Picture In Courthouse Continues

A small Slidell, Louisiana courthouse is becoming the latest symbol in church-state conflict. As previously reported, the ACLU has threatened to sue if the picture of Jesus that hangs in the courthouse lobby is not removed. On Tuesday night, according to the New Orleans Times-Picayune, 250 Slidell residents held a "revival-like" demonstration in support of keeping the picture. Some protesters argued that the picture-- a reproduction of a 16th century Russian Orthodox icon-- is artistic expression, not proselytizing. Another, however, said: "Christians are seen as very passive. It's time for Christian people to stand up and say, 'Hey!'"

German Pastor Convicted Under Holocaust Denial Ban For Abortion Comments-- UPDATE: Story Retracted

Life Site News reports that in Erlangen, Bavaria, a city court has convicted Lutheran Pastor Johannes Lerle of violating Germany's Volkverhetzung law that is used to combat Holocaust denial. Lerle was sentenced to one year in jail for comparing abortion in Germany to the murder of innocent Jews in Auschwitz. Commenting on reports of the conviction, the Becket Fund's Angela C. Wu said: "While Volksverhetzung laws exist in Germany because of its unique history, that is no excuse for illegally violating the international human right to freedom of belief, which must include the right to profess those beliefs, even those of a controversial nature."

UPDATE: In an unusual move, Life Site News on Thursday issued the following statement:
The story published Tuesday on the jailing of Pastor Lerle in Germany has been retracted after 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.]

California Court Upholds Episcopal Church's Right To Property of Dissident Parish

In a 77-page opinion filed on Monday, the California Court of Appeal, Fourth Appellate District held that in a dispute over the ownership of church property of a break-away congregation, a general church has the clear right to enforce a governing instrument that provides for a trust against the property of a local member parish. In Episcopal Church Cases, (CA Ct. App., June 25, 2007) the court said that a long line of state and U.S. Supreme Court decisions require using the "principle of government" or "highest church judicatory" approach in resolving church property disputes. The court rejected the "neutral principles"approach to church property disputes that was taken by the lower court (see prior posting), and that has been taken by a number of other California appellate courts.

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.]

New Jersey Officials Say Sign On Supposed Monestary Violates Zoning Rules

Today's Woodbridge Sentinel reports that Middletown Township, New Jersey officials are in a somewhat strange battle with Archimandrite Ephraem Bertolette, who claims to be a bishop of the Greek Orthodox Church. However the chancellor of the Greek Orthodox Metropolis of New Jersey says that Metropolitan Ephraem is not affiliated with it. Ephraem claims that his home is a monastery, and has been fighting for four years to get a tax exemption for it. In a new dispute, township officials have ordered Ephraem to take down a large sign he has recently placed in front of his home declaring to to be a monastery. Officials say that the sign violates zoning rules. Ephraem claims that taking down the sign would violate his religious beliefs, citing among other things, a verse from Proverbs: "Remove not the ancient landmarks which thy fathers have set up."

Turkey's Supreme Court Says Patriarch Should Not Use Title "Ecumenical"

According to Today's Zaman, on Wednesday the 4th Chamber of Turkey's Supreme Court of Appeals approved the acquittal of Greek Orthodox Patriarch Bartholomew I and other officials who were charged with "barring others from worship" after the Patriarch stripped a Bulgarian Orthodox Church priest, Konstantin Kostoff, of his title. The court rejected the priest's claim that his removal violated his freedom of religion. Of more interest inside Turkey, however, was another comment that the Supreme Court of Appeals made in its opinion. The Patriarch is known by the title "Ecumenical Patriarch". The court said, however, that he has no legal right to use the title "Ecumenical"-- which means universal. Reflecting the long-held view of the government of turkey, it said that such title amounts to a special privilege that conflicts with the country's constitutional principle of equality. A Greek Foreign Ministry spokesman disagreed with the court's comments, saying that the title is based on "international treaties, the sacred regulations of Orthodoxy, on history and Church tradition".

Mennonite Farmer Excused From ID Number Mandate In Settlement of Lawsuit

Pennsylvania Department of Agriculture officials have quickly settled a lawsuit filed by a Mennonite farmer who had religious objections to the requirement that he obtain a federal identification number in order to continue to ship his ducks to markets in New York. (See prior posting.) A settlement stipulation filed in court on Wednesday in Landis v. Wolff provides that James Landis will not be required to obtain a federal premise identification number in order to participate in the Avian Influenza Monitored Flock Program. Alliance Defense Fund announced the settlement in a press release yesterday.

Employment Discrimination Suits Proliferate Recently

An unusually large number of religious discrimination in employment cases have made the news in the past day or two. The EEOC has filed suit against Vonage Holdings Corp., alleging that it refused to accommodate the religious needs of an Orthodox Jewish employee, Mikhail Rozenberg, when it refused to permit him to miss parts of a six-week training session in order to observe religious holidays, and refused to offer him positions that would not require him to work on Saturdays. (AP) The EEOC has also filed suit against Merrill Lynch & Co. alleging that it failed to promote, and eventually fired analyst Majid Borumand because hew was Muslim and Iranian. (Wall Street Journal).

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

Germany Excludes Scientologist Tom Cruise's Moviemakers From Military Bases

BBC News this morning reports that German officials have banned the makers of a new movie about Colonel Claus von Stauffenberg's 1944 plot to assassinate Hitler from filming at military sites. The German defense ministry's reason is that the film's star, Tom Cruise, has "publicly professed to being a member of the Scientology cult". Germany believes that Scientology is a commercial enterprise, not a religion, and that its activities pose a threat to "the free democratic order".

Hindu Chaplain To Deliver Invocation In U.S. Senate

Mangalorean reports that for the first time in history, on July 12, the U.S. Senate will open with a Hindu prayer. Rajan Zed, Director of Public Affairs and Interfaith Relations of Hindu Temple of Northern Nevada, has been invited to give the opening invocation that day.

Poway High School T-Shirt Case Gets More Procedurally Complex

Harper v. Poway School District, a case that can only be described as a procedural morass, became even more complex on Friday as the Alliance Defense Fund filed a motion asking a California federal district court to reconsider its previous rejection of a challenge to the hate behavior policy of Poway (CA) High School. (ADF Press Release.) The motion comes in the case of Kelsie Harper, after the U.S. Supreme Court refused to allow her it intervene at the Supreme court level in a similar challenge brought by her brother, Tyler-- a challenge that was dismissed as moot because Tyler had graduated. The motion in Kelsie's case argues that the district court rejected Kelsie Harper's claims in reliance on the 9th Circuit opinion that was vacated as moot by the Supreme Court. At issue in the case is whether the school can prohibit Christian students, who object to homosexuality on Biblical grounds, from wearing T-shirts opposing the gay rights Day of Silence.

Monday, June 25, 2007

Supreme Court Upholds Student Speech Restrictions On Narrow Grounds

The U.S. Supreme Court today, in a case generating five separate written opinions, decided that Juneau, Alaska school officials did not violate a student's free speech rights when they confiscated a banner reading "Bong Hits 4 Jesus" that the student displayed at the at the Olympic Torch Relay through town. School officials approved and supervised student attendance at the event which took place during school hours In Morse v. Frederick, (S.Ct., June 25, 2007), Chief Justice Roberts opinion, joined by Justices Scalia, Kennedy, Thomas and Alito, held that "schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use".

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

This morning in a 5-4 decision in Hein v. Freedom From Religion Foundation, (S.Ct., June 25, 2007), the U.S. Supreme Court held that taxpayers lack standing to challenge expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives, distinguishing the facts from those in the seminal taxpayer standing case, Flast v. Cohen. The majority opinion was written by Justice Alito. Justices Scalia and Thomas, in a concurring opinion, urged that Flast be overruled. Justice Souter wrote the dissent. SCOTUS Blog, as usual, had the first report on the decision. Here are more details:

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....

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 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."

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....

Religious Leaders In NY Gay Pride Parade Criticize Mayor

Christian, Jewish and Buddhist religious groups marched near the head of this year's gay pride parade in New York City on Sunday according to the AP. Two clergy who served as grand marshals criticized Mayor Michael Bloomberg's decision to join in the parade's march only after it passed St. Patrick's Cathedral. Today's New York Sun quotes Rabbi Sharon Kleinbaum and Rev. Troy Perry who criticized the mayor for not marching the full length of the parade route-- a practice he began in 2002 "in order to avoid some of the disrespectful acts that have taken place" as the parade passed St. Patrick's. Bloomberg walked beside New York's first openly gay City Council Speaker, Christine Quinn. Many other elected officials, including Senator Charles Schumer, also marched in the parade.

Australian Hate Speech Case Settled

In Australia, a long-running case in which Victoria's Racial and Religious Tolerance Act was invoked against two Christian ministers for their criticism of Muslims has been settled. Today's Daily Telegraph reports that Catch The Fire Ministries leader Danny Nalliah and the Islamic Council of Victoria settled the case that had been remanded to the Victorian Civil & Administrative Tribunal by the Court of Appeals. (See prior posting.) After mediation, the parties issued a joint statement of goodwill, recognizing the dignity and worth of all individuals, but upholding the right to "robustly debate" and criticize the religion of others.

Employees of Israel's Conversion Authority Threaten To Strike

Yesterday's Jerusalem Post reports that administrative employees in the government's Conversion Authority are taking steps to authorize a strike over the chaotic working conditions that prevail in the agency. Disputes between two rabbinic factions in the Authority have slowed down the work of the agency which is responsible for performing conversions of Israelis who wish to become Jewish. Some 50 new Ethiopian immigrants who are candidates for conversion staged a protest march on Sunday to call attention to the unresponsiveness and the bureaucratic hurdles they are encountering. (Jerusalem Post.) There are also thousands of immigrants from the former Soviet Union who immigrated to Israel under the Law of Return, but who are not Jewish under halacha (Jewish law). Many of them are also awaiting conversion.

New Articles and Book of Interest

From SSRN:
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).

From SmartCILP:
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).

New Book:
Peter Irons, God on Trial: Dispatches from America's Religious Battlefields (Viking, May 2007), reviewed by AP.

EEOC Sues On Behalf Of Sikh Employee

The Sikh Coalition reports that last Thursday the Equal Employment Opportunity Commission filed suit on behalf of Sukhvir Kaur, a Sikh woman, against National Wholesale Liquidators, charging religious, gender and national origin discrimination. An April press release by the Coalition provides background on the case in which, among other things, Kaur's manager told her that Sikh employees are "thieves", and retaliated against her for rebuffing his advances.

Sunday, June 24, 2007

Romney's Mormon Faith Continues to Be An Issue In Campaign

The Mormon religious faith of Republican presidential hopeful Mitt Romney continues to be an issue. The AP reported yesterday that Sen. John McCain's campaign has apologized to Romney for comments made by a McCain volunteer in April at a meeting of Iowa Republicans. McCain's Warren County, Iowa, chairman, Chad Workman, apparently questioned whether Mormons are Christians and said that the Mormon Church supports Hamas. In response to a question, he also compared Mormon women to the Taliban. At a Salt Lake City fundraiser yesterday, Romney complained that rival campaign attacks on his religious beliefs are too frequent. (AP). (See prior related posting.) Meanwhile, The Politico reports that Utah lawyer Ryan Bell has set up a blog to "counter the ever more frequent misinformation being published in the political sphere about the LDS church and its beliefs."

Muslim Girl's Soccer Team Rejected From League Because of Hijab

Scotland on Sunday reports that a ruling by the International Football Association Board prohibiting Muslim women players from wearing a hijab (headscarf) has been applied to prevent competitive play by the Ansar Women's team from the east end of Glasgow. A majority of the girls on the team wear a hijab. The ruling apparently prevents the promising team from being admitted to the Scottish Women's Football Association. (See prior related posting.)

Obama Addresses Church Group-- Says Faith Has Been Hijacked

The New York Times reports that Sen. Barak Obama, a Democratic presidential hopeful, yesterday addressed the United Church of Christ -- the denomination to which he belongs-- at its General Synod on the occasion of its 50th anniversary. Obama said that religion has a role to play in American politics, but that now "faith got hijacked" and is "being used to drive us apart". A video of Obama's full address is available from the UCC's website. [Corrected. Thanks to Donald C. Clark, Jr. for details.]

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.

Pastor's Trial Delayed Until MN Supreme Court Rules On Clergy Sex Statute

In Winona, Minnesota last Thursday, the criminal trial of Rev. Donald Dean Budd was postponed until the Minnesota Supreme Court hands down its ruling on the constitutionality of the state's statute that criminalizes sexual conduct between a member of the clergy and someone receiving spiritual or religious advice from the minister. Friday's Winona Daily News reports that Budd has been charged with 10 counts of criminal sexual conduct for his relations with a woman he was counseling. On April 10, the Minnesota Supreme Court heard arguments in Minnesota v. Bussman (case summary), challenging Minn. Stat. § 609.344, subd. l(ii) on vagueness and Establishment Clause grounds.

Saturday, June 23, 2007

Recent Prisoner Free Exercise Cases

In Jones v. Richwine, 2007 U.S. Dist. LEXIS 44800 (SD IN, June 18, 2007), an Indiana federal district court rejected a free exercise claim by a maximum security inmate who was not permitted to attend group church services, but was permitted to meet individually with a chaplain or minister.

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.

Court Invalidates Selective Religious Exemptions In Ohio's Public Employee Law

In Katter v. Ohio Employment Relations Board, (SD OH, June 21, 2007), an Ohio federal district court declared a portion of Ohio’s public employee collective bargaining law unconstitutional under the Establishment Clause. Ohio Revised Code 4117.09(C) provides that certain employees who object to union membership on religious grounds may instead contribute an amount equal to union fees to a nonreligious charity. The exemption, however, applies only to members of a bona fide religious body that has historically held conscientious objections to joining or financially supporting labor unions. The court held that this favors members of groups such as the Seventh Day Adventists and Amish Mennonites, while it discriminates against individuals such as Carol Katter, a Roman Catholic, whose objections are based on the union’s support for abortion rights. The court issued a declaratory judgment and enjoined the Ohio Employment Relations Board from applying the statute.

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.

Vietnam President In US Is Pressed On Religious Freedom Concerns

During his current trip to the United States, Nguyen Minh Triet, the first Vietnamese president to visit the U.S. since the Vietnam War, is being pressed by members of Congress and the President on religious freedom issues. In a statement yesterday after meeting with Triet, President Bush said:
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.

North Carolina Will Not Appeal Case Permitting Any Holy Text For Oaths

The North Carolina Attorney General's office has announced it will not appeal a trial court ruling permitting religious texts other than the Christian Bible to be used to swear in witnesses and jurors in North Carolina courts. The Winston-Salem Journal reports on the decision not to appeal last month's ruling. The trial court held that as a matter of North Carolina common law, an oath could be administered on whatever text the witness or juror found most sacred and obligatory. (See prior posting.)

Greece, NY Town Board To Continue Unrestricted Invocations

The Town Board of Greece, New York plans to stick with its practice of permitting invited clergy to deliver invocations prior to the beginning of Board meetings, despite objections from the ACLU about the specific references to Jesus in some of the prayers. The Rochester (NY) Democrat and Chronicle reported yesterday that the Board selects clergy to invite from those they find in a local newspaper's listing of local religious services. All of those invited so far have been Christian, but town Supervisor John Auberger says that if someone from another faith wants a pre-meeting prayer from that tradition, the Board would make efforts to accommodate the request.

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.

Saudi Religious Police Come Under Increasing Scrutiny

Two stories published this week have indicated growing objections in Saudi Arabia to activities of the country's Commission for Promotion of Virtue and Prevention of Vice—the official police who enforce Islamic legal restrictions. On Thursday, The Economist reported that the press and public have increasingly complained about excessive zeal by the religious police —with some individuals actually suggesting that the Commission should be abolished. For the first time, one woman is demanding compensation for injuries suffered in an accident when agents recklessly drove her to headquarters for questioning. However, according to The Economist, the Commission serves the useful purpose of helping to solve the high unemployment problem in the country and absorbing the oversupply of Saudis who have obtained degrees in religious studies.

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

British Women Who Wear Niqab Featured

This morning's New York Times carries a front page article on the increasing number of Muslim women in Britain who are wearing the niqab-- the full-face veil and black gown covering the entire body except for a slit for the eyes. The Times comments: "Their appearance, like little else, has unnerved other Britons, testing the limits of tolerance here and fueling the debate over the role of Muslims in British life." The women interviewed for the article give religious, political and personal reasons for their decisions to wear the niqab.

Mennonnite Farmer Sues Claiming Animal ID System Infringes His Religious Beliefs

Yesterday, the Alliance Defense Fund filed suit in state court on behalf of Mennonite farmer, James Landis, challenging the requirement imposed by the Pennsylvania Department of Agriculture that Landis obtain a federal premise identification number in order to continue to ship his Muscovy ducks to live bird markets in New York City. (Press release). The requirement is the first step in a National Animal Identification System that is being developed to better trace diseased animals. Landis believes that any numbering system imposed on him violates the command in Revelation Chaps. 13-14 to avoid the mark of the beast. The complaint (full text) in Landis v. Wolff alleges that the Agriculture Department's demand violates Landis' right to the free exercise of religion protected by the Pennsylvania Constitution (Art. I, Sec. 3) and by the Pennsylvania Religious Freedom Protection Act.

White House Rally on July 4th To Call For Pagan Military Chaplain

On the 4th of July, a group of pagan religious leaders will lead a rally in Lafayette Square, across from the White House, to call for the appointment of a Pagan military chaplain and request approval of more Pagan religious symbols by the Department of Veterans Affairs. A news release carried yesterday by PR Newswire says that among the speakers will be Rev. Marcia Drewry of Sacred Well Congregation who led the first Wiccan Open Circle in Iraq in 2003. Additional information on the rally is available at the Pagan Religious Rights Now website.

ADF Defends Sectarian Legislative Prayers In Ohio

As previously reported, the Ohio House of Representatives has guidelines calling for invocations offered by invited clergy to be non-denominational, non-sectarian and non-proselytizing. Now at the request of Ohio Rep. Diana M. Fessler, the Alliance Defense Fund (press release) has submitted a memo concluding not only that sectarian invocations are constitutional (so long as government does not exploitatively promote one religion to the exclusion of others), but also that the Ohio House Guidelines for Guest Ministers are unconstitutional because they require clergy to submit their invocations for approval 72 hours in advance. ADF also submitted a model policy on opening invocations that it suggested the Ohio House adopt.

British High Schooler Sues For Right To Wear "Chastity Ring"

In Britain, a 16-year old high school student, Lydia Playfoot, is filing suit against her West Sussex high school because it refuses to permit her to wear a "chastity ring". InTheNews today reports that teachers at the Millais School placed Lydia in "isolation" after she refused their request that she remove the ring that she began wearing after attending an event sponsored by The Silver Ring Thing, a religious organization that promotes abstinence until marriage among teenagers. The school has a "no jewellery" policy. Lydia claims the school's action violates the Human Rights Act protection of her right to practice her religion. The school, however, says that the ring is not an integral part of the Christian faith.

NM Coach Settles Religious Discrimination Suit Against Him

The Associated Press reports that New Mexico State University football coach Hal Mumme yesterday announced a settlement in a lawsuit brought against him and and the University charging religious discrimination and infringement of the free exercise of religion. The suit had been filed by four former Muslim football players who claimed that Mumme created an atmosphere hostile to Islam and pressed team members to recite the Lords Prayer after practice and before games. Both parties have agreed to keep the terms of the lawsuit settlement confidential for six months. (See prior related posting.)

OR Supreme Court To Hear Divorced Parents' Fight Over Son's Circumcision

According to a report yesterday by the Associated Press, the Oregon Supreme Court has agreed to review a case in which divorced parents are arguing over whether their 12-year old son who wishes to convert to Judaism can be circumcised. (See prior posting.) The father, James Boldt, who has custody of the boy and who has himself converted to Judaism, wants the boy to be circumcised. He claims that as custodial parent, he has the right to raise his son in his religion. The boy's mother says her son is afraid to tell his father that he objects to the procedure.

Alevi Seek Separate Recognition In Turkey

In Turkey, in a hearing earlier this week, the Cem Foundation appealed a refusal by the Prime Minister's Religious Affairs Directorate to recognize Alevism as a separate religious group. In the case, argued before Ankara's 6th Administrative Court, Alevi leaders want the government to register cem evleri as a house of prayer, allocate positions in the Religious Affairs Directorate to Alevi leaders and allocate funds for Alevi religious practices. The Religious Affairs Directorate argues, however, that Alevism is merely a sect within Islam, and is not a separate religious group. Today's Zaman reports on the case, and says that Alevi leaders plan to appeal to the European Court of Human Rights if they lose in the Administrative Court.

Thursday, June 21, 2007

MO Court Allows Workers Comp Despite Religious Refusal of Blood Transfusion

In Wilcut v. Innovative Warehousing, (MO Ct. App., June 19, 2007), a Missouri appellate court reversed a decision by the state's Labor and Industrial Relations commission that had denied death benefits under the Workers Compensation Law to a Jehovah's Witness who had died as the result of refusing a blood transfusion. Floyd Wilcut was a truck driver who had been seriously injured in an accident. His life could have been saved if he had not refused the transfusion on religious grounds. His employer, after initially beginning to pay benefits, terminated them arguing that under the statute, no benefits were payable because Wilcut's death was the result of his "unreasonable refusal" to submit to medical treatment. The Court of Appeals disagreed, holding that Wilcut's "refusal was not unreasonable in light of his beliefs."

ACLU Demands Removal of Jesus' Picture From Lousiana Courthouse

The lobby of the Slidell, Lousiana City Court prominently features a picture of Jesus, with an inscription under it reading "To know peace, obey these laws". Today's New Orleans Times-Picayune reports that the ACLU of Louisiana has written court officials demanding that the picture be removed. The letter says that the picture violates the Establishment Clause, arguing that "The only possible purpose of the display in your courthouse is to convey a religious message." The ACLU says that it will file suit if the picture is not removed.

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).

Evidentiary Issues Raised In Defamation Suit Against Pastor

The Monterey County (CA) Herald reported yesterday on interesting evidentiary issues that are being raised at a defamation trial brought by Rayn Random, a former parishioner, against Rev. William Martin, pastor of Monterey's St. John's Chapel Episcopal Church. Random says the pastor told other church members that she sexually pursued, stalked and harassed him. Judge Susan Dauphine has ruled that Random will not be permitted to introduce evidence of ecclesiastic decisions at trial. So she may not offer evidence about being denied communion during an Ash Wednesday church service and eventually being told she was no longer welcome at the church. Less clear is whether she will be able to tell jurors that subsequently church officials called police and had her removed from church premises for trespassing. The judge said that action was not ecclesiastic, but left open the problem of how it could be explained to jurors without telling them that Random's church membership had been revoked.

Plaintiff In Famous Religious Liberty Case Dies

Roy R. Torcaso, plaintiff in a landmark U.S. Supreme Court religious liberty case, died in suburban Washington, DC on June 9, according to today's Wahsington Post. In the 1961 decision in Torcaso v. Watkins, the Supreme Court invalidated Maryland's requirement (then found in its state constitution) that Torcaso declare a belief in God in order to become a notary public.

New British Group Will Defend Muslim Conversion

Tomorrow in Britain, a new organization will be launched-- the Council of ex-Muslims of Britain. Today's London Telegraph reports that the group plans to plans to speak out against Islamic states that still punish Muslim apostates with death, as called for by Islamic law. Countries still imposing the death penalty for conversion are Saudi Arabia, Yemen, Iran, Sudan and Afghanistan. The new group is sponsored by the British Humanist Association and the National Secular Society.

Russian Court Rejects Challenge To Religious Organizations Law

In Russia, the Minsk City Court has rejected a challenge to the Law on Freedom of Conscience and Religious Organizations that requires congregations to obtain permission to hold religious services at residential premises. Protestant pastor, Antony Bokun, who was fined for holding an unauthorized service, argued that the law was inconsistent with both Russia's constitution and international law. Charter'97 yesterday reported on the decision.

San Diego Episcopal Diocese Sues To Regain Property Of Three Parishes

In its continuing battle with breakaway congregations, the Episcopal Diocese of San Diego this week filed lawsuits against three parishes-- St. Anne's, Holy Trinity and St. John's-- to regain property of the churches. Episcopal News Service quotes diocese spokesman Canon Howard Smith, who said: "We have a fiduciary responsibility to care for all the assets of these congregations, including church records, historical documents and buildings." (See prior related posting.)

Wednesday, June 20, 2007

State's Use of Faith-Based Juvenile Detention Facility Challenged In Court

The Freedom From Religion Foundation announced yesterday that it has filed a federal lawsuit against the North Dakota Department of Corrections and Rehabilitation, as well as against a county social services department, claiming that their referral of children to the religiously-based Dakota Boys and Girls Ranch violates the Establishment Clause. Children are committed without their consent to the Ranch by county social service agencies or the North Dakota Department of Juvenile Services. The referring public agencies pay for the care of those they send to the Ranch, using taxpayer funds. The complaint in Freedom From Religion Foundation v. Bjergaard (full text) , filed on behalf of North Dakota taxpayers, says that the Lutheran-sponsored Ranch attempts to modify the behavior of children by directing them to find faith in Jesus Christ. It alleges that "Christian beliefs and standards are integrated into the fabric of treatment services provided by the Dakota Boys and Girls Ranch."

Battles Over Chreches On Public Property Begin Early This Year

The "Christmas wars" are beginning early this year. Yesterday's New York Sun reports that in Queens, New York, City Council member Tony Avella is asking the New York City Department of Education to change its policy so that nativity scenes can be displayed in schools. Avella is scheduled to disclose the exact language of his proposal on Sunday at City Hall. At that time he will hold a press conference along with representatives from the Catholic League for Religious and Civil Liberties and the Ladies Ancient Order of Hibernians. Current school policy permits only secular Christmas symbols, but permits menorahs for Hanukkah and the star and crescent for Ramadan.[CORRECTED] (See prior related posting.)

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.

Brownback Apoligizes For Staffer's Anti-Mormon E-Mail

Republican presidential hopeful Sen. Sam Brownback has apologized to fellow-candidate Mitt Romney for an e-mail sent out by one of Brownback's staffers claiming that Mormons are not truly Christians. Yesterday's Salt Lake Tribune reports that Brownback's southeast field director in Iowa, Emma Nemecek, used her perosnal AOL account to send the e-mail to a dozen people. Brownback also plans to apologize to leaders of the LDS Church for the incident. Both Rudy Giuliani and John McCain apologized earlier this year when their staffers distributed or made anti-Mormon comments.

Detroit Area Church Sues Housing Commission For Discrimination

The New Life Family Church is suing the River Rouge, Michigan Housing Commission for religious discrimination after the Commission voted last week to stop renting the city's Hyacinth Court Community Center to the start-up congregation for it to use for Sunday worship services. Today's Detroit News reports that the Commission ignored the advice of its general counsel and decided that it did not want the Center used for religious worship. However, the church is not immediately without a place to congregate. A Wayne County Circuit Court issued a temporary restraining order on June 15, permitting the church to remain in the Center pending a hearing on a preliminary injunction set for June 28. Lawyers representing the church have also issued a press release on the case.

Indian Candidate Creates Controversy By Opposing Veils

Dawn reports today that Muslim leaders in India are calling on Prime Minister Manmohan Singh to drop his support of the moderate Hindu governor of Rajasthan, Pratibha Patil, for election to the largely ceremonial post of president. Patil angered Muslims when, last week end, she urged women to end the practice of wearing the veil. She said the practice of wearing it started in the 16th century when women were trying to save themselves from Mughal invaders. Many historians say the practice actually began earlier than that. The presidential election is in July, and nominations can be made until June 30.

Taking of Church Property By Eminent Domain Upheld

A Broward County, Florida Circuit judge has ruled that the county can use its eminent domain power to take property leased by a church for the county to use to build a drug treatment center. Yesterday's Miami Herald reports that the county decided on the land before the church leased the then-vacant property, but church signed its lease with an option to buy just before the county filed its eminent domain petition in court. The court concluded that the taking did not violate Florida's Religious Freedom Restoration Act, holding that the church's exercise of religion will not be substantially burdened by being forced to move.

Tomorrow Is National Day of Prayer For Native American Sites

Tomorrow, June 21, has been designated by the Morning Star Institute as the 2007 National Day of Prayer to Protect Native American Sacred Places. In Washington, DC, the day will be marked by an observance on the Capitol grounds. Indian Country Today reports that the annual event was begun five years ago as a way to seek Congressional legislation that would create a cause of action to protect Native American sacred places. Events marking the day will also be held at a number of locations around the country.

Tuesday, June 19, 2007

North "Dakota City Moves 10 Commandments Monument

Fargo, North Dakota city commissioners voted 3-2 on Monday night to remove a 10 Commandments monument from public property next to city hall and instead place it on private land. The Fargo Forum reports today that the move follows Council's unanimous rejection of an offer from the Red River Freethinkers to put up a monument near the Ten Commandments that would contain a quote from a 1796 US-Tripoli treaty: "The government of the United States of America is not in any sense founded on the Christian religion." Voting to move the 10 Commandments monument, Councilman Mike Williams said: "Religion is too important for politics, and that's why we need to make a change here."

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.

Italian Prosecutors Investigating "Da Vinci Code" Film

In Italy earlier this year, a group of clergy filed a complaint against the film, The Da Vinci Code. The Washington Post reported yesterday that the state prosecutor's office now says it will open a criminal investigation into the film to determine whether it is "obscene" from a religious perspective. If the film, originally released over a year ago, is found to violate Art. 528 of Italy's Penal Code, defendants could face jail time and fines. However the defendants cannot be extradited from abroad to face these charges.

President Attends National Hispanic Prayer Breakfast

Last Friday, President George W. Bush spoke (full text of remarks) at the National Hispanic Prayer Breakfast in Washington. The President said that he appreciated "the opportunity to be with Hispanic American pastors and priests and community leaders and faith-based activists from all over the United States. " He thanked them for inviting him and for their "abiding faith in the power of prayer". Many of his remarks focused on immigration reform.

New Zealanders Oppose Queen's Title of "Defender of the Faith"

In New Zealand, a group that is pressing for a an elected head of state for the country to replace the British monarch's serving in that role, issued a press release on a survey published this week. The poll by Research New Zealand revealed that most New Zealanders are opposed to recognizing Christianity as the state religion in the country and are also opposed to one part of the Queen's title-- the phrase "defender of the faith". Under the Royal Titles Act 1974, her full title is: "Elizabeth the Second, by the Grace of God Queen of New Zealand and Her Other Realms and Territories, Head of the Commonwealth, Defender of the Faith".

Monday, June 18, 2007

Cert. Denied In Libel Suit By Church Group Against Encyclopedia

Today the U.S. Supreme Court denied certiorari in The Local Church v. Harvest House Publishers (Case No. 06-1520) (June 18 Order List), a case on the scope of the "ecclesiastical abstention" doctrine and other First Amendment doctrines as they apply to defamation actions that arise in a religious context. In the case, a Texas state court of appeals, rejected a libel claim by a group of churches against a publisher and two authors who included "The Local Church" in The Encyclopedia of Cults and New Religions. (See prior posting). Extensive primary materials and commentary on the case are posted on Contending for the Faith website.

When Are Bilingual Charter Schools Too Religious For State Sponsorship?

Yesterday's South Florida Sun Sentinel reports on the controversy surrounding a new Hebrew/ English bilingual charter school that will open this fall in Hallandale, Florida. Some argue that the school's plan of operations at least comes close to violating principles of church-state separation. The school's principal will be a rabbi, and its curriculum will include Jewish history and culture. However, Susan Onori, the charter school coordinator for the Broward School Board, says that while the school will be in a Jewish Center, many of Broward's 48 charter schools are in churches and temples. The school will follow the same calendar as all public schools. Onori says that all religious symbols are to be covered during the day. Also, the school is already over-enrolled, so it must select students through a lottery, which will help create diversity. This controversy echos a controversy surrounding an Arabic/English charter school opening in New York this fall.

Can State Protect Children From Religious Approaches At County Fair?

Liberty Counsel last week pointed to a interesting change in policy that it convinced the Canyon County (Idaho) Fair & Festival Board to make. The Board had imposed restrictions on two religious organizations renting booths at the upcoming county fair. Contracts with the Child Evangelism Fellowship (CEF) and with the Gideons had originally restricted the groups from offering their materials to children unless the child's parent was also present. After a demand letter from Liberty Counsel arguing that these restrictions violated the religious groups' freedom of speech, the Board relented and provided new contracts without the restrictions. So now, as in past years, CEF will offer face painting and literature with a Christian message to children at the fair, to be held in July.

Group Issues Report On Religious Right's Influence In Texas

The Texas Freedom Network has recently published a report on The State of the Religious Right: 2007, God’s Lawgivers? Carrying the Water for the Religious Right in Texas Government. The organization's press release on the report describes it as:

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.

Indonesian Christian Women Released Early From Prison

Ekkleisa reports that earlier this month, Indonesian authorities released from prison three Christian women who, in a much-publicized case, had been jailed for violating the country's Child Protection Code that bans converting children through tricks, lies or force. They had been convicted of operating a "Happy Sunday" program that attracted Muslim children, as well as Christians. The program included Christian songs, games and Bible studies. The women were released after serving two years of their three-year sentence. (See prior related posting.)

Sunday, June 17, 2007

Danish Official OK's Muslim Practices For Judges, Attorneys

The president of the Danish Supreme Court, Torben Melchior, has ruled that there is no problem with female Muslim judges wearing headscarves in court. Nor is there any objection if they refuse to shake hands with men. Radiance Viewsweekly, reporting on an article in the June 5 Jyllands-Posten [Danish version], quotes Melchior as saying that the country needs more immigrants, including believing Muslim women, to become judges and barristers. "It would benefit integration and our legal system. Judges and lawyers must be recruited from the population as a whole, in order to assure that all backgrounds and points of view are represented," he said.

Performance Of IN Social Service Agency Chaplain Raises More Than Church-State Issues

As previously reported, last month a federal lawsuit was filed challenging the constitutionality under the Establishment Clause of the hiring of a chaplain by Indiana's Family and Social Service Administration. Now the Indianapolis Star reports that, separate from the lawsuit, there are substantial questions about the Rev. Michael Latham's performance as that chaplain. First there are questions about Latham's relatively high salary. Also, he does not appear, after 21 months, to have followed through on his main responsibility, which was to organize a network of volunteer clergy to counsel FSSA employees. Also Latham does not meet the qualifications required generally for state chaplains hired by Indiana prisons and hospitals. He graduated from high school unable to read, eventually learning to read from tutors in his church. He has never attended college or a seminary and has no training n counseling. However, Latham was active in the 2004 campaign of Indiana's now-governor, Mitch Daniels. Latham appeared in Daniels' campaign ads, and at a campaign news conference criticized the minority-hiring practices of then-Democratic Gov. Joe Kernan. Latham and FSSA Secretary Mitch Roob defend Latham's performance in his new position.

Queen Knights Rushdie; Iran Says This Shows Anti-Islamism

BBC News reported on Friday that Salman Rushdie, author of The Satanic Verses, has been knighted by Queen Elizabeth. His name appeared on the Honours List , which cited him for his services to literature. His book aroused great controversy in the Muslim world. He went into hiding in 1989 after after an Iranian fatwa, accompanied by a bounty on his head, put him under threat of death. In 1998, the Iranian government said it would no longer support the fatwa, and Rushdie emerged from hiding. However some Muslim groups consider the fatwa still in force. In a press conference today, according to the AP, Iran Foreign Ministry spokesman Mohammad Ali Hosseini criticized the Queen's move, saying: "Awarding a person who is among the most detested characters in the Islamic society is obvious proof of anti-Islamism by ranking British officials."

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

Recent Scholarly Articles of Interest

From SSRN:
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).

From Bepress:
Paul E. McGreal, Social Capital in Constitutional Law: The Case of Private Norm Enforcement Through Prayer at Public Occasions, (May 2007).

From SmartCILP:
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).

MD Court Says Organist Not Excluded By Title VII "Ministerial Exception"

In Archdiocese of Washington v. Moersen, 2007 Md. LEXIS 348, (MD Ct. App., June 14, 2007), a Maryland state appellate court, in a 2-1 decision, held that William Moerson, formerly an organist for St. Catherine Laboure Parish Catholic church, can pursue a Title VII employment discrimination claim against the church. The court held that his job position is not covered by the "ministerial exception" to Title VII. The majority wrote: "Moersen was not required to have any specialized knowledge of the Catholic faith…. [H]is lack of knowledge of many aspects of the Catholic faith did not prevent him from doing his job…. Moersen was not the 'voice' of the church. It was the Cantor that led the Parish and choir in song, and Moersen merely accompanied him. Not only did he not preach or inculcate values, he did not decide how the message was expressed. He was not … in a teaching role, in a position where his own beliefs affected his ability to perform his job."

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."

Judge Confirms Jury's Findings Against Florida Homeless Shelter

On Friday, a Palm Peach County, Florida Circuit Court judge refused to overturn a jury's verdict handed down in February finding that the county had a compelling interest in applying its zoning ordinances to a homeless shelter operated by Westgate Tabernacle. Westgate claimed that the county infringed its religious freedom by interfering its housing the homeless. The Palm Beach Post reports that Circuit Judge David Crow's opinion says: "there was substantial and competent evidence presented that the ordinances and codes in question do serve a compelling state interest in promoting health and safety".

Friday, June 15, 2007

Army Chaplain's Bible Study Guides Create Controversy

Jews on First this week has a long posting on a controversy over study guides used in Bible study classes for US soldiers conducted by the Protestant chaplain at the Ft. Leavenworth, Kansas Army Base. Some of the study materials, posted for a while on the Command Chaplain Bible Studies website, appear to disparage Judaism.

Religious Belief No Defense To Order To Restore Competency To Stand Trial

In United States v. Smith, 2007 U.S. Dist. LEXIS 42839 (D KS, June 12, 2007), a federal district court judge was able to reject, largely by way of language in a footnote, a pre-trial detainee's religious objections to being required to take anti-psychotic medications in order to restore his competency to stand trial. The detainee, Isaac Smith, claimed that one reason he did not want to take the medication was that God had healed him. In a footnote, the court said: "defendant does not suggest how a court order ... would prohibit his free exercise of religion. Further, the Court finds that the government's compelling interest in prosecuting this serious crime outweighs any First Amendment interest that may exist here."

Do Public Accommodation Laws Limit Ability To Carry Out Shunning?

Suits filed yesterday by the Arizona Attorney General against two restaurant owners raise the interesting question of how far members of religious groups can go in implementing a religious decision to excommunicate or "shun" a fellow member without violating civil rights laws. According to the Associated Press the lawsuits charge the restaurant owners, who are members of the Fundamentalist Church of Jesus Christ of Latter Day Saints, with refusing to serve Isaac Wyler and Andrew Chatwin who were excommunicated in 2004 by then-FLDS leader Warren Jeffs. One of the suits claims that FLDS members are taught to shun Jeffs opponents. (AP) The restaurants are located in Colorado City, Arizona, one of the centers of the FLDS Church-- best known for its continued practice of polygamy. Commenting on the suit, a representative of the Arizona Attorney General's office said that refusing to serve Wyler and Chatwin because they are not FLDS member violates Arizona law: "The law in Arizona says that if you operate a place of public accommodation, you cannot refuse service based on religion." The suits seek damages and a court order prohibiting future discriminatory conduct.

Tennessee AG Says Grants To Churches Violate Establishment Clause

On Monday, Tennessee's legislature passed the state budget bill, HB 2353, containing provisions for Community Enhancement Grants that the Secretary of State may award to charities, non-profit organizations and governmental agencies. The grants can be used for public safety activities, educational initiatives, cultural activities, or community development activities. (Tennessean, However, an opinion issued by the state's Attorney General at the request of a legislator effectively eliminated the possibility of awarding such grants to churches. Opinion No. 07-94 said that it would be a violation of the Establishment Clause to give such grants to churches, or pervasively sectarian youth groups affiliated with churches, without specific instructions on how the funds are to be spent. However, it said, any attempt to monitor restrictions on use of grant funds might create a risk that the state would become excessively entangled with the day-to-day operations of these religious organizations, also an Establishment Clause violation. [Thanks to Blog from the Capital and to Jack Shattuck for the leads.]

New Commission To Study Church-State Relations In Czech Republic

The Prague Post reports that on May 30, Czech Republic Culture Minister Václav Jehlička created a six-member Commission for Church-State Relations to develop a plan to compensate churches for confiscated property and to formalize the relationship between church and state. In 1948, officials in then-Communist Czechoslovakia took control of the Catholic church in the country. It confiscated Church property and began paying the salaries of priests. Today, when over half of the country's population claim to be atheists, taxpayers are still subsidizing the salaries of Catholic clergy. The Catholic Church also wants the new Commission to look into entering an agreement with the Vatican to spell out the role of the Church in the Czech Republic. All other European countries have such an agreement.

2nd Circuit Allows 9-11 Detainee to Proceed With Religious Discrimination Claims

Yesterday in Iqbal v. Hasty, (2d Cir., June 14, 2007), the U.S. 2nd Circuit Court of Appeals refused to dismiss a number of constitutional claims, including claims of religious discrimination and interference with religious practice, brought by a Pakistani Muslim who was detained after 9-11 in Brooklyn, New York's Metropolitan Detention Center. In the suit which is seeking damages for civil rights violations, the court refused to find that the facility's former warden had qualified immunity as to plaintiff's claim that he was not allowed to attend Friday prayers, that prison guards banged on his door when he tried to pray, and that his Koran was routinely confiscated. The court also refused to dismiss on qualified immunity grounds claims against Attorney General John Ashcroft, and FBI Director Robert Mueller that they targeted him for mistreatment and classified him as a detainee of high interest solely because of his race, ethnicity and religion. Yesterday's Washington Post discusses the decision.

Chinese Officials Demolish Buddhist Statue At Monestary

The International Campaign for Tibet reports that a 30 foot statue of the 8th century founder of Buddhism in Tibet-- Guru Rinpoche (Padmasambhava)-- donated by Chinese Buddhists to Tibet's Samye monastery, was demolished by Chinese People's Armed Police last month. A regulation adopted in China in 2005, and in the Tibet Autonomous Region this year, prohibits construction of "large-size outdoor religious statues" by individuals or organizations "other than religious bodies, monasteries, temples, mosques and churches." Even when erected by a religious body, both Tibetan and Chinese religious affairs officials would need to approve.