Wednesday, October 31, 2007
Covering yesterday's decision, the Indianapolis Star quotes ACLU attorney Ken Falk. He says if the legislature resumes sectarian prayer, his group would be willing to file suit on behalf of a person who would likely have standing-- someone who regularly attends legislative sessions and must listen to the prayers.
Meanwhile the American Jewish Committee issued a release saying that yesterday's decision "is extremely alarming because it denies taxpayers the right to challenge a legislative act that in practice gives preferential access to Christian clergy in determining who shall present a daily legislative prayer." Indiana Attorney General Steve Carter released a statement in support of the decision, saying: "Legislative prayer is a worthy act that I think the State should protect within relevant legal precedents."
Numerous prior postings on the case can be accessed at this link. Links to a recording of the Sept. 2006 oral arguments before the 7th Circuit , and to the earlier opinion staying the lower court's injunction pending appeal, are also available online.
The Court of Appeals rejected two rather elaborate theories used by the district judge to deny relief to the church. The lower court said that since a religious use includes not only religious services, but also residential uses such as a rectory for the minister, churches would get preferential treatment if they were not required to obtain a variance. Second it said that a church could interfere with existing businesses because state law prohibits the sale of liquor or pornography within specified distances from any church. Judge Posner wrote: "Government cannot, by granting churches special privileges (the right of a church official to reside in a building in a nonresidential district, or the right of the church to be free from offensive land uses in its vicinity), furnish the premise for excluding churches from otherwise suitable districts."
Tuesday, October 30, 2007
Singh v. Goord, 2007 U.S. Dist. LEXIS 78742 (SDNY, Oct. 9, 2007), involved a challenge by a Sikh prisoner to various policies of the new York Department of Corrections, attempting to obtain greater accommodation of a number of Sikh religious practices. Some of the claims were dismissed for failure to exhaust administrative remedies. However, the court permitted plaintiff to move ahead on his claim that he should be permitted to wear the kara (steel bracelet) and khanda (pendant), possess a second kanga (religious comb), possess longer turbans, remain in contact with religious articles during searches, and that prison religious exercise policies should be re-written to include Sikhs. It granted plaintiff summary judgment on separate packing and storage of his scriptures. It granted defendants summary judgment allowing them to require plaintiff to pray quietly instead of out loud, upholding the vegetarian diet plaintiff is now served, and permitting the identity card maintained by prison authorities.
In Britain, Muslim prisoners at a high security facility in Leeds are suing for $20 million in damages because of a mistake in the Ramadan menu. CFP yesterday reported that the menu offered ham sandwiches as one of the options. Ministry of Justice officials say it was merely a printing mistake, but some inmates claim they actually received ham sandwiches when they ordered cheese sandwiches, and that some were so hungry that they ate the religiously forbidden ham.
Monday, October 29, 2007
The script accompanying the 12th fold also mentions religion: "The twelfth fold, in the eyes of a Christian citizen, represents an emblem of eternity and glorifies, in their eyes, God the Father, the Son, and Holy Ghost." Last July, the Air Force secularized the script used at its funerals. (See prior posting.) [Thanks to Scott Mange for the lead.]
UPDATE: Here is the full text of the magistrate's opinion in Hudson Presbyterian Church v. Eastminster Presbytery, (OH Com. Pl., Summit Co., Oct. 23, 2007). [Thanks to Ed Koster for sending along the opinion.]
UPDATE: The Christian Post on Monday reports on the fourth annual Convocation of the New Wineskins Association of Churches beig held this week. It will create a non-geographical Transitional Presbytery for the increasing number of congregations leaving the PCUSA to seek New Wineskins membership.
- Martha Jane Bailey, Beverley Baines & Bita Amani, Expanding Recognition of Foreign Polygamous Marriages: Policy Implications for Canada, (Queen's Univ. Legal Studies Research Paper No. 07-12, 2006).
- Muriel Morisey, Flag Desecration, Religion and Patriotism, (Rutgers Journal of Law and Religion, Vol. 9, 2007).
- Robert A. Sedler, Essay: The Protection of Religious Freedom under the American Constitution, (Wayne State University Law School Research Paper No. 07-37).
- Benjamin Straumann, The Peace of Westphalia (1648) as a Secular Constitution, (September 2007).
- Journal of Church and State , Vol 49, No. 3 (Summer 2007) has recently been published.
Sunday, October 28, 2007
Meanwhile, in another move that heightens tensions, USA Today reports that the Vatican has beatified 498 victims of the anti-Catholic persecution that began in 1931 and became an excuse for Nationalists to launch a rebellion that ultimately placed Franco in power. This declaration of martyrdom comes just three days before Spain's Parliament is to enact a Socialist-sponsored law that will condemn Franco and call for the removal of tributes to him around the country. (See prior posting.) The ceremony today in St. Peter's Square in Rome is the largest mass beatification ceremony the Church has ever held.
In an Oct. 25 speech to the NGO, Committee for Freedom of Religion or Belief, she warned against countries going too far in banning defamation against religion. According to the Adventist News Network, Jahangir argued that "objective criticism" of religion is a human right, and expressed concern that blasphemy laws can be used to silence dissent. She also rejected analogies between racial hatred and religious hatred, saying: "religion is unlike race -- you cannot proselytize to change [your] race. There are serious differences."
Speaking on Oct. 26 before the General Assembly’s Social, Humanitarian and Cultural (Third) Committee, Jahangir warned against the use of religion as an excuse for criminal action that encroaches on the rights of others. A UN News Centre release quotes her: "No impunity should be awarded when criminal acts which infringe on the human rights of others are given a religious label. At the same time, all governmental actions should be proportionate, abide by the rule of law and respect the applicable international human rights standards."
For the conservative Christian leadership, what is most worrisome about the evangelical disappointment with President Bush is that it coincides with a widening philosophical rift. Ever since they broke with the mainline Protestant churches nearly 100 years ago, the hallmark of evangelicals theology has been a vision of modern society as a sinking ship, sliding toward depravity and sin. For evangelicals, the altar call was the only life raft — a chance to accept Jesus Christ, rebirth and salvation. Falwell, Dobson and their generation saw their political activism as essentially defensive, fighting to keep traditional moral codes in place so their children could have a chance at the raft.
But many younger evangelicals — and some old-timers — take a less fatalistic view. For them, the born-again experience of accepting Jesus is just the beginning. What follows is a long-term process of “spiritual formation” that involves applying his teachings in the here and now. They do not see society as a moribund vessel. They talk more about a biblical imperative to fix up the ship by contributing to the betterment of their communities and the world. They support traditional charities but also public policies that address health care, race, poverty and the environment.
Saturday, October 27, 2007
In a 2-1 decision, the majority held that “an allegation of a past chill of First Amendment-protected activity is sufficient to confer standing to a plaintiff seeking retrospective relief, even when that relief comes in the form of nominal damages…. [T]o establish such a claim, a plaintiff must show that the defendant’s actions or policy would deter a person of ordinary firmness from exercising his or her First Amendment liberties in the way that the plaintiff alleges he or she would have, were it not for the defendant’s conduct or policy.”
Judge Cook, dissenting, said: "'This is a case about nothing.' The majority burdens a federal district judge with a full-blown trial to determine whether to award the plaintiff a single dollar if a policy no longer in effect was unconstitutional despite never being enforced against the plaintiff.”
The appeal brought together unusual allies. Both the ACLU and the Alliance Defense Fund praised the 6th Circuit’s result. The AP reported on the decision. (See prior related posting.)
UPDATE: On Monday, according to the AP, Illinois U.S. District Judge Robert Gettleman refused to issue a temporary restraining order to prevent District 214 and Buffalo Grove High School from holding a moment of silence, after school officials agreed they would not mention religion in carrying out the law. However the court permitted the suit challenging the law to move ahead and scheduled another hearing for next month. The judge suggested that Sherman drop the Governor as defendant and replace him with the state board of education.
Friday, October 26, 2007
First, I trace the historical roots of liberty in Britain to a struggle for tolerance, by which I mean also a gradual acceptance of pluralism - a notion of political liberty that would allow those of different denominations and beliefs to coexist peacefully together.... This did not happen all at once, or without setbacks and struggle. The flames of religious intolerance burned across this land too. But never as strongly as in continental Europe....
[W]e should neither glorify nor distort what has gone before - and the struggles, both the ups and downs, of empire are not long behind us - to uphold a particular view of where we are now or what we can become. So we need to recognise, for example, that it took until 1829 for Catholic emancipation, even later for legislation ending discrimination against the Jewish community..... But the single most powerful thread that runs though our history is a succession of chapters in the defence of liberty and toleration. We gave refuge to Huguenots fleeing persecution in the 1600s. By the eighteenth century, London was arguably already the world's most diverse city - a situation which we can remain proud of in Britain to this day.
The suit just filed was brought on behalf of the New Horizon Church Ministry that wishes to submit a charter application. The complaint in New Horizon Church Ministry v. Spitzer, (full text) claims that the Charter Schools Act and the state's Blaine Amendment violate federal constitutional guarantees of equal protection, free exercise of religion and free speech.Gotham Legal Foundation has posted online a series of questions and answers about the case.
Other legislators are taking somewhat more nuanced stands. House Speaker Lance Cargill says he will accept the gift, but "as a measure of goodwill" would present the Council with a copy of the Centennial edition of the Bible published by Oklahoma Baptists. Rep. George Faught said he was refusing the Quran not out of racial or ethnic hate, but because "As a Christian, I view the Holy Bible as God’s inerrant, inspired word and try every day to apply the teachings of Christ to all areas of my life." Council chair Seirafi-Pour lamented that one reason the decision was made to distribute the Quran was to give lawmakers accurate information about Islam.
Thursday, October 25, 2007
The 3-judge panel of the High Court ordered the Chief Rabbinate to exercise its authority to authorize kashrut certificates for produce grown under heter mechira. In the lawsuit filed by the Plants Production and Marketing Board, the Israel Farmers Federation, and a group of farmers and marketers, the High Court criticized the informal telephone poll that the Chief Rabbinate used to change its prior policy. The court also said that the Rabbinate's had no authority to take this more stringent stance unnecessarily, that its new approch seriously harmed farmers' livelihood, leads to discrimination and results in inequality due to the high prices of produce. The Court, according to Justice Rubenstein, was not expressing a Halakhic (Jewish legal) opinion, but was instead ruling on the administrative validity of the decision by the Chief Rabbinate.
For those interested in following Israeli issues closely, Joel Katz has a new blog and weekly E-Newsletter, Religion and State In Israel. A link to it is also in the Religion Clause sidebar.
Wednesday, October 24, 2007
The White House concern about same-sex marriage stems from language in Section 8 of the Act: "An unlawful employment practice ... shall include [employment discrimination] ... that is conditioned, in a State in which a person cannot marry a person of the same sex, either on being married or being eligible to marry.
H.R. 3685 is inconsistent with the right to the free exercise of religion as codified by Congress in the Religious Freedom Restoration Act (RFRA).... For instance, schools that are owned by or directed toward a particular religion are exempted by the bill; but those that emphasize religious principles broadly will find their religious liberties burdened by H.R. 3685.
A second concern is H.R. 3685’s authorization of Federal civil damage actions against State entities, which may violate States’ immunity under the Eleventh Amendment to the U.S. Constitution.
The bill turns on imprecise and subjective terms that would make interpretation, compliance, and enforcement extremely difficult. For instance, the bill establishes liability for acting on "perceived" sexual orientation, or "association" with individuals of a particular sexual orientation.... Provisions of this bill purport to give Federal statutory significance to same-sex marriage rights under State law. These provisions conflict with the Defense of Marriage Act, which defines marriage as the legal union between one man and one woman. The Administration strongly opposes any attempt to weaken this law, which is vital to defending the sanctity of marriage.
UPDATE: On Thursday, Thanhnien News published a transcript of a meeting between USCIRF members in Vietnam and Deputy Minister of Public Security Senior Lieutenant General Nguyen Van Huong. The U.S. delegation inquired of him about a number of religious and human rights issues.
With political leaders stating or implying that Jerusalem might be redivided for the sake of a "peace process," we must remind them of basic principles. The holy city of Jerusalem has been central to the spirituality and destiny of Jews for millennia. Forty years ago, Jerusalem was rescued from languishing as a divided city. During the period of 1948-1967, when the city was under Arab jurisdiction, Jews and Christians were barred from their holiest sites. Many holy sites were damaged or destroyed. Western Jerusalem was subjected to daily sniper fire. The duly enacted policy of the United States of America is the recognition that the holy city of Jerusalem as the indivisible capital of the State of Israel.
Tuesday, October 23, 2007
The Dallas Morning News reports that U.S. Muslim leaders were relieved by the verdict. At a Dallas news conference, Mahdi Bray of the Muslim American Society Freedom Foundation said: "The American Muslim community is protected under the First Amendment. Feeding people is not a crime and we aren't going to let the American government make it a crime."
UPDATE: The Oklahoma City Journal Record reports that the lawsuit was refiled on Thursday, this time adding as a plaintiff a restaurant that claims it has lost 40% of its business as a result of the passage of HB 1804.
Monday, October 22, 2007
In response to the city's contention that its display of Tibetan objects is cultural, not religious, Christian activist Amy Bernitt said the Ten Commandments also are cultural and artistic because they are carved from limestone for which the Bloomington area is famous. The city quickly removed the Ten Commandments after the brief ceremony.
Staff, inmates, and volunteers overwhelmingly find value in the FCBI model and believe that it is achieving its goals of changing inmate behaviors, preparing inmates for successful reentry, and ultimately reducing recidivism. Respondents feel that, in particular, the FCBI experience helps promote family reunification and employment prospects upon release, while also improving the prison environment for inmates, volunteers, and staff.The Report also concluded: "The FCBI model is carefully administered to avoid many of the conflicts with the principle of church-state separation that have led to challenges of other faith-based prison programs."
... At six months after release, male FCBI inmates have lower reincarceration rates than a matched comparison group of inmates housed in general population FDOC facilities.... [However] the differences between the two male groups are not statistically significant at twelve months post-release, nor are the differences between female FCBI participants and their matched comparisons at either six or twelve months after release.... [C]orrections officials may ... wish to replicate the impact analysis ... in a year’s time, when the sample sizes are more likely to yield results in which they can have increased confidence.
- Ira C. Lupu & Robert W. Tuttle, Ball on a Needle: Hein V. Freedom from Religion Foundation and the Future of Establishment Clause Adjudication, (Brigham Young University Law Review, Forthcoming Feb. 2008).
- David B. Kopel, Self-Defense in Asian Religions, (Liberty Law Review, Vol. 2, p. 79, 2007).
- David R. Barnhizer & Daniel D. Barnhizer, Myth, Magic and Mystery: Defending the Hidden Order of the Rule of Law, (Cleveland-Marshall Legal Studies Paper No. 07-149, Oct. 16, 2007).
- John Copeland Nagle, The Evangelical Debate Over Climate Change, (University of St. Thomas Law Journal, Forthcoming).
- JoEllen Lind, What Counts as Neutrality? The Religion and Race Cases Compared, (Valparaiso University Legal Studies Research Paper No. 07-04).
- David B. Kopel, Dhimmitude and Disarmament, (George Mason University Civil Rights Law Journal, Forthcoming).
- Steven Douglas Smith, How Is America 'Divided by God'?, (Mississippi College Law Review, Vol. 27, 2007).
- Ryan Spear, What We Talk About When We Talk About God (Reviewing Richard Dawkins, The God Delusion; Sam Harris, Letter to a Christian Nation; and E. O. Wilson, The Creation: An Appeal to Save Life on Earth), 1 Harvard Law & Policy Review 495-506 (2007).
- Forrest Church, So Help Me God: The Founding Fathers and the First Great Battle Over Church and State, (Harcourt, Sept. 10, 2007), reviewed by the Deseret Morning News.
- D. Michael Lindsay, Faith in the Halls of Power: How Evagelicals Joined the American Elite, (Oxford Univ. Press, Aug. 2007), reviewed in the Wall Street Journal.
Sunday, October 21, 2007
UPDATE: The full opinion is now available on LEXIS: Boyer v. Irvin, 2007 Del. Ch. LEXIS 146 (DE Ch., Oct. 19, 2007).
Saturday, October 20, 2007
The Court of Appeal said, however, that whether a clergyman is an employee will vary from church to church and from religion to religion. It observed: "The religious beliefs of a community may be such that their manifestation does not involve the creation of a relationship enforceable at law between members of the religious community and one of their number appointed to minister to the others. The law should not readily impose a legal relationship on members of a religious community which would be contrary to their religious beliefs." Reporting on the decision, The Times pointed out that earlier cases had referred to ministers as "servants of God" who had been appointed to a holy office, instead of treating them in the same way as secular employees.
Meanwhile the Jehovah’s Witnesses have won a significant legal victory in Pridnestrovia (also known as Trans-Dniestria)-- a break-away republic within the internationally recognized boundaries of Moldova. According to Thursday's Tiraspol Times, Pridnestrovia’s Supreme Court has held unconstitutional a requirement imposed by Religious Affairs Commissioner Pyotr Zalozhkov that that Jehovah’s Witnesses register under local laws governing the leadership of religious organizations.
In Tafari v. Annets, 2007 U.S. Dist. LEXIS 76017 (SDNY, Oct. 15, 2007), a New York federal Magistrate Judge recommended that an inmate be permitted to proceed with his claim that his free exercise rights were violated when on five separate occasions he was denied kosher food while in transit between prison facilities. The magistrate recommended dismissal of a number of other claims.
In Farnsworth v. Baxter, 2007 U.S. Dist. LEXIS 72209 (WD TN, Sept. 26, 2007), a Tennessee federal district judge denied defendant’s motion to dismiss a RLUIPA claim brought by a prisoner who complained about the failure to provide Messianic Jewish religious services. Defendant had argued that damages are not available under RLUIPA in suits brought against officials in their individual capacities.
In Cruz v. Scribner, 2007 U.S. Dist. LEXIS 76423 (ED CA, Oct. 3, 2007), a California federal Magistrate Judge dismissed, subject to the right to file an amended complaint, claims by a Native American prisoner that he was denied the right to participate in the annual Pow-Wow, Banquet and Sweat Ceremony that is part of his religion. Plaintiff failed to allege any link between the named defendants and his free exercise, equal protection and RLUIPA claims.
In two nearly identical opinions, a California federal district court held that plaintiff prisoners must specifically allege how their religious rights are being violated in the institution where they are incarcerated instead of making broad and generic allegations about policies or practices at all other California prison facilities. The cases are Bonner v. Tilton, 2007 U.S. Dist. LEXIS 76932 (ED CA, Oct. 2, 2007) and Green v. Tilton, 2007 U.S. Dist. LEXIS 76925 (ED CA, Oct. 2, 2007).
In Jones-el v. Pollard, 2007 U.S. Dist. LEXIS 77505 (ED WI, Oct. 18, 2007), a Wisconsin federal district court permitted an inmate to move ahead with a variety of claims under the First Amendment and RLUIPA. Plaintiff charged that he was prevented from observing Ramadan, was deprived of Islamic publications, was prevented from possessing prayer oil and a prayer rug while in segregation, and was denied Halal meals. He also alleged that prison authorities favor Christianity over Islam by employing full-time Christian chaplains and using Christian chapels.
Friday, October 19, 2007
Meanwhile, in another attempt to maintain the authority of traditional Rabbinic bodies, Israel's Chief Sephardic Rabbi, Shlomo Amar, arrived in the United States this week to oversee the Rabbinical Council of America's appointment of religious court judges to its conversion courts. Amar has ordered that only conversions by special Orthodox Jewish tribunals that he has approved should be recognized in Israel. JTA reports on these developments. (See prior related posting.)