Religion Clause: June 2010

Wednesday, June 30, 2010

Supreme Court Refuses Review Of School Rules On Distributing Materials

On Monday, the U.S. Supreme Court denied certiorari in Morgan v. Plano Independent School District, (Docket No. 09-1131). (Order List.) In the case, the U.S. 5th Circuit Court of Appeals found that rules adopted in 2005 by a Texas school district restricting the times and places at which students can distribute written materials are constitutional, at least on their face. At issue were students who wished to distribute religious-themed candy canes and tickets to church musical and drama programs. (See prior posting.) Dallas Morning News on Monday reported on the court's action.

Groups Urge Congressional Hearings on Faith Based Initiative

On June 18, thirty national organizations comprising the Coalition Against Religious Discrimination, sent a letter (full text) to the Constitution, Civil Rights and Civil Liberties subcommittee of the House Judiciary Committee urging it to hold hearings on the current status of the Faith-Based Initiative. The letter reads in part:

As a candidate, President Obama promised to reinstate constitutionally required religious liberty protections and end federally funded religious discrimination in the Faith-Based Initiative. Yet, eighteen months after President Obama’s inauguration, the White House and all the federal agencies are still operating under the same inadequate safeguards against proselytizing and insufficient constitutional protections imposed by the previous Administration.

[Thanks to Michael Lieberman for the lead.]

Court Says Pooled Investment Funds Are Part of Delaware Diocese Bankruptcy Estate

In In re Catholic Diocese of Wilmington, Inc., (DE Bankr., June 28, 2010), a Delaware federal bankruptcy court held that funds in a pooled investment program operated by the Catholic Diocese of Wilmington are part of the bankruptcy estate. Individual parishes have over $2.3 million of their funds invested in the pool, while various Catholic charitable and educational organizations have over $25.8 million and the Catholic Diocese Foundation has $45 million there. These 31 participants in the pooled investment program claimed that a trust relationship existed so that their invested funds belong to them and are not property of the diocese. The court held that a trust exists, but that their funds are comingled with funds of the diocese that are also part of the pooled investment vehicle, and that these participants (with the exception of one parish) have not carried their burden of identifying and tracing the funds that belong to them. So these funds become part of the total pool that will be divided among some 140 sexual abuse victims who have sued the diocese. The parishes and institutions with funds in the pool will also have claims and will share pro rata with abuse claimants and other creditors. Bloomberg Businessweek, reporting on the decision, quotes an attorney for sex abuse victims who have sued the diocese who calls the result "a great victory for all the survivors of sexual abuse in the diocese."

Prop 8 Opponents Say CLS v. Martinez Supports Them

Earlier this month, lawyers made their closing argument in Perry v. Schwarzenegger, a federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. A decision has not yet been handed down in the case. (See prior posting.) Plaintiffs, who claim that gays and lesbians are a protected class for constitutional purposes, say language in Monday's Supreme Court decision in Christian Legal Society v. Martinez supports their position. The Recorder yesterday reported that lawyers for those challenging Proposition 8 wrote a letter (full text) to U.S. District Judge Vaughn Walker, bringing the Supreme Court's language to his attention. The letter reads in part:

In Christian Legal Society, the Supreme Court definitively held that sexual orientation is not merely behavioral, but rather, that gay and lesbian individuals are an identifiable class. Writing for the Court, Justice Ginsburg explained: "Our decisions have declined to distinguish between status and conduct in this context."

Kagan's Religion Comes Up In Unusual Contexts At Confirmation Hearings

JTA reports that at the Senate Judiciary Committee hearings yesterday on the Supreme Court nomination of Elena Kagan, the nominee referenced her religion in two unusual contexts. Sen. Chuck Grassley (R-Iowa) questioned Kagan on remarks she made at Harvard Law School welcoming Israeli Supreme Court Judge Aharon Barak in which she called the activist jurist her "judicial hero." (See prior posting.) Responding to Grassley's concerns, Kagan said that her admiration does not mean she wants to adopt Barak's views in the United States. Instead, she said, she admired his role in creating an independent judiciary for Israel and assuring that it "would become a very strong rule of law nation." Then she added: "As you know, I don't think it's a secret I am Jewish. The State of Israel has meant a lot to me and my family. And – and I admire Justice Barak for what he's done for the State of Israel and ensuring an independent judiciary."

At another point in the hearing, Sen. Lindsey Graham (R-SC) began to question Kagan about terrorism issues, focusing on the arrest in Detroit last Christmas Day of an attempted airline bomber. Graham asked: "Where were you on Christmas Day?" Kagan responded humorously: "Like all Jews, I was probably at a Chinese restaurant."

Don Byrd is live blogging from the hearings on church-state issues that arise.

En Banc Rehearing Denied In Challenge To Inauguration Prayer and Oath

Yesterday the D.C. Circuit Court of Appeals denied a panel rehearing and also denied an en banc rehearing in Newdow v. Roberts. The case is an Establishment Clause challenge to prayer and use of "so help me God" in the oath at Presidential inauguration ceremonies. In May's panel decision dismissing the case, two judges held that it was moot and that plaintiffs lacked standing, while the third judge would have dismissed on the merits. (See prior posting.) [Thanks to Bob Ritter for the lead.]

Tuesday, June 29, 2010

Reasons For Belgian Raid On Church Headquarters Disclosed

Today's New York Times reports new information explaining the raids by Belgian police last week on church offices and a cathedral in the Archdiocese of Malines-Brussels. The Pope criticized police tactics. (See prior posting.) The Times reports that the raids stemmed from a formal accusation by Godelieve Halsberghe, former head of an internal church commission handling sexual abuse cases, that the Church was hiding information. Investigators seized two truckloads of files, many relating to 475 complaints filed since April when Bishop Roger Vangheluwe resigned after admitting to sexually abusing a young man decades ago. (Background.) Investigators are comparing records to see if some complaints were kept from the church's commission. Prosecutors are also considering whether to move against those who knew children were being abused and took no action to protect them.

New Australian Prime Minister Says She Will Not Pretend Religious Beliefs For Votes

In Australia last week, the governing Labor Party changed its leaders, naming Julia Gillard as Prime Minister-- the first woman to hold that post. (Huffington Post). Gillard is expected to call elections for as early as August. (news.com.au). The Australian today reports on a refreshing honesty by Gillard in responding to views about her religious beliefs. When asked during a radio interview how she would attract Christian voters and whether she believes in God, she responded:

I'm not a religious person. I was brought up in the Baptist Church but during my adult life I've, you know, found a different path. I'm of course a great respecter of religious beliefs, but they're not my beliefs. I am not going to pretend a faith I don't feel. And for people of faith the greatest compliment I could pay to them is to respect their genuinely held beliefs and not to engage in some pretence about mine. I think it's not the right thing....

For, you know, people of faith what I would say to them is I grew up in a Christian Church, a Christian background, a Baptist Church, I won prizes for catechism for being able to remember Bible verses. I am steeped in that tradition but I've made decisions in my adult life about my own views.... What I can say to Australians broadly of course is that I believe you can be a person of strong principle and values from a variety of perspectives. And I've outlined mine to you.

Advocacy Groups React To CLS v. Martinez

Many advocacy groups and interested parties have issued statements on yesterday's Supreme Court decision in Christian Legal Society v. Martinez. Here is a sampling:

Citizens Link suggests that the decision may have limited impact because few if any other schools have an "all-comers" rule for student groups. Most have a rule that bars discrimination on specified grounds, such as race, religion, gender and sexual orientation. The majority avoided passing on the constitutionality of this sort of rule. The Chronicle of Higher Education also reviews reactions to the decision.

Report Released on Canadian Zoning Laws and Religious Freedom

The Evangelical Fellowship of Canada announced yesterday the release of a report titled Zoned Out: Religious Freedom in the Municipality. The report outlines the protections for religious freedom in Canada and focuses on municipal zoning laws that may violate the religious freedom of congregations seeking to relocate.

Cert. Denied In Abuse Suit Against Vatican

The Supreme Court yesterday denied certiorari in Holy See v. Doe, (Docket No. 90-1). (Order List.) In the case, a Seattle man is attempting to hold the Vatican liable for abuse by a priest in the 1960's. The 9th Circuit held that plaintiff could proceed against the Vatican on a respondeat superior theory under the Foreign Sovereign Immunity Act's tortious act exception. (See prior posting.) Reporting on the Supreme Court's refusal to review which allows the lawsuit to move to trial, AP quoted plaintiff's attorney who hopes now to be able to depose Vatican officials.

Monday, June 28, 2010

Supreme Court Upholds Hastings Law School's All-Comers Policy for Registered Student Organizations

The U.S. Supreme Court today in a 5-4 decision upheld the non-discrimination policy of Hastings College of Law that requires registered student organizations to allow any student to participate. The policy was challenged by the Christian Legal Society which requires members to sign a Statement of Faith and abide by it, so that non-Christians and those who engage in "unrepentant homosexual conduct" are excluded. Registered student organizations get the advantage of being able to meet on school premises, and of communicating with its member through sending e-mails to the student body and through other official forums.

In Christian Legal Society Chapter of the University of California, Hastings College of Law v. Martinez, (Sup. Ct., June 28, 2010), CLS argued that all-comers rule violates its rights to free speech, expressive association and free exercise of religion. The majority ruled only on the "all comers" rule that the parties specified applied in their stipulation of facts. It refused to pass on the question of whether the narrower non-discrimination policy as written that prohibits discrimination only on specified bases, including religion and sexual orientation, is unconstitutional because it targets beliefs based on religion or having to do with particular kinds of sexual behavior.

The majority in an opinion written by Justice Ginsburg, held that Hastings' policy is a reasonable, viewpoint-neutral condition on access to a limited public forum for registered student organizations. She summarized:

The First Amendment shields CLS against state prohibition of the organization's expressive activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state subvention of its selectivity.

Responding to concerns about a takeover of a group by opponents who wish to sabotage it, Justice Ginsburg wrote that membership or leadership positions can be conditioned on "requirements designed to ensure that students join because of their commitment to a group’s vitality, not its demise."

Justices Stevens and Kennedy filed separate concurring opinions. Justice Stevens argued that even as written, the non-discrimination policy is constitutional. Justice Kennedy emphasized the informal learning that is furthered through student interaction by the all-comers policy.

Justice Alito wrote a dissent, joined by Chief Justice Roberts and Justices Scalia and Thomas. The dissent argued that the Court should focus on the non-discrimination policy as written, since that was the policy originally invoked to deny CLS registration. That policy, the dissent argues, amounts to viewpoint discrimination since only religious groups are required to admit students who do not share their views. Political groups or groups formed around other causes can limit membership. The dissent goes on to argue that even limiting the analysis to the broader all-comers rule, the policy is unconstitutional. It was adopted as a pretext to suppress a particular viewpoint and it is not reasonable in light of the purposes of the student organization policy which is promoting diversity among student organizations.

Pakistan Monitoring Major Websites For Sacrilegious Content

According to Salon, the Pakistan Telecommunications Authority under order from the Ministry of Information Technology is monitoring seven major websites for sacrilegious content. The sites being monitored are: Yahoo, Google, MSN, Hotmail, YouTube, Amazon and Bing. It will block links on these sites to offensive content. It is also completely blocking access to 17 other less well-known websites, including islamexposed.blogspot.com. The action was taken in response to an order by a court in the city of Bahawalpur, and follows a court-ordered temporary ban on access to Facebook last month. (See prior posting.)

Belgian Police Search of Cathedral and Church Offices Condemned

Yesterday, according to Zenit, Pope Benedict XVI in a letter to Belgian Archbishop André-Joseph Léonard condemned the methods used last Thursday by Belgian police in searching the headquarters of the Archdiocese of Malines-Brussels in a sexual abuse investigation. As described by Zenit:

The police arrived at 10:30 Thursday morning to the headquarters of the Archdiocese of Malines-Brussels, where the bishops of Belgium were meeting for their monthly meeting. The authorities detained the bishops at the headquarters for nine hours as they searched the offices and the Cathedral of Malines.

At that time they drilled holes in the two graves of cardinals Jozef Ernest Van Roey and Leon Joseph Suenens, deceased archbishops of Malines-Brussels, located in the crypt of the cathedral, and then sent cameras down in search of hidden documents.

In addition to the headquarters of the archbishopric of Brussels, the authorities seized some 500 confidential files In Leuven, Belgium, from the office of Peter Adriaensses, president of the commission for the treatment of sexual abuses. The home of former archbishop of Malines-Brussels, Cardinal Godfried Danneels, was also searched.

Sunday, June 27, 2010

Compromise Lets Israel's High Court Release School Parents From Jail

In Israel, a compromise has led to the release from jail of the fathers of 35 girls enrolled in the Beit Ya'acov school in the town of Emmanuel. As previously reported, Israel's High Court ruled that a group of parents of the Slonim Hasidic sect would be imprisoned for two weeks for contempt if they did not obey the court's previous order to send their girls back to a school where they study together with Sephardi girls. Ultimately only the father's were jailed. According to today's Jerusalem Post and Haaretz, under the compromise all the girls will spend this week's last three days of the school year together hearing lectures about unity. Everyone agrees that this satisfies the Court's order. Then over the summer, the parties will meet to work out a more permanent solution. The Jerusalem Post says that the agreement calls for the right of Ashkenazi Hasidic parents to establish a new school next year. The haredi community calls the compromise a victory by religious forces over the state's secular institutions. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Recent Prisoner Free Exercise Cases

In Gunn v. Kentucky Department of Corrections, 2010 U.S. Dist. LEXIS 60530 (WD KY, June 18, 2010), a Kentucky federal district court rejected an inmate's equal protection, free exercise and RLUIPA claims growing out of his treatment by the prison chaplain. Plaintiff was required to sit in an assigned seat in the chapel because of his security status, and on one occasion was escorted out and not allowed to return to services after they had begun.

In Jackson v. Raemisch, 2010 U.S. Dist. LEXIS 61130 (WD WI, June 21, 2010), a Wisconsin federal district court dismissed a suit by a Muslim inmate formerly employed in the prison's food service area where inmates were not permitted to pray. The court held that plaintiff's RLUIPA claim for injunctive relief to allow prayer was mooted because he no longer works for food services. Defendants were granted qualified immunity as to plaintiff's claim for damages under the First Amendment. Plaintiff's equal protection claim was dismissed for lack of evidence. However he was permitted to pursue a claim for retaliation.

In Jones v. McFadden, 2010 U.S. Dist. LEXIS 61559 (ED CA, May 27, 2010), a California federal magistrate judge dismissed a complaint by a Muslim inmate that breakfast pastries served to inmates during a lock down contained pork products. The court held that mere negligence in checking the ingredients before serving them to Muslim inmates did not support a free exercise claim. A conscious or intentional act is required.

In Smith v. Marshall, 2010 U.S. Dist. LEXIS 61323 (CD CA, June 21, 2010), a California federal district court adopted the recommendations of a federal magistrate (2010 U.S. Dist. LEXIS 61371, May 11, 2010) and dismissed a complaint by a Muslim prisoner that he was denied prayer oil purchased for him by a third party because he had met his limit for receiving packages, and in buying prayer oil himself (which was allowed) he was required to pay use tax.

In Allen v. Weimer, 2010 Kan. App. Unpub. LEXIS 458, (KS Ct. App., June 18, 2010), a Kansas appellate court held that an inmate who was dismissed from his prison job with a private employer could not validly claim violation of his religious rights when he untruthfully represented that he could work 8-hour days, even though he knew his religious call out was during that 8-hour period.

In Johnson v. Delaunay, 2010 U.S. Dist. LEXIS 62038 (SD NY, June 18, 2010), a New York federal district court upheld a Department of Corrections policy that permits an inmate to participate in a religion's programs only if the individual is registered in the Department of Corrections database as belonging to that religion. It also rejected damage claims on sovereign immunity grounds.

In Cooper v. Evans, 2010 U.S. Dist. LEXIS 61998 (SD IL, May 28, 2010), an Illinois federal magistrate judge refused to dismiss an inmate's claims that he was denied a lacto-ovo diet required by his Buddhist religious beliefs. The court rejected defendants' claims that plaintiff failed to exhaust his administrative remedies.

In Raheem v. Miller, 2010 U.S. Dist. LEXIS 62230 (WD OK, June 23, 2010), an Oklahoma federal district court adopted the recommendations of a magistrate (2010 U.S. Dist. LEXIS 62148, May 14, 2010) and permitted an inmate to proceed with some of his RLUIPA claims based on denial of a kosher/halal diet. However the court dismissed his claim seeking damages for emotional distress.

In Amaker v. Goord, 2010 U.S. Dist. LEXIS 62350 (WD NY, June 23, 2010), a New York federal district court adopted a magistrate's recommendations (2010 U.S. Dist. LEXIS 62349, March 25, 2010) and found that the New York Department of Corrections violated RLUIPA when it allowed Rastafarians to wear dreadlocks, but did not permit them to be worn by members of other religious groups. Prison officials argued that wearing of dreadlocks by plaintiffs who were members of Nation of Islam was not required by their religious faith. The court concluded however that officials may not impose restrictions based on governmental assessments of the validity to a religious denomination of a particular practice.

Religious Limits On Arbitrators Invalidated By British Appellate Court

In Jivraj v. Hashwani, (EWCA, June 22, 2010), Britain's Court of Appeal held that Britain's Employment Equality (Religion and Belief) Regulations 2003 invalidate a provision in a private commercial arbitration provision requiring that arbitrators are to be drawn from members of a particular religious community. The agreement provided that "All arbitrators shall be respected members of the Ismaili community and holders of high office within the community." The trial court had held that arbitrators were not in an employment relationship and thus were not covered by the non-discrimination regulations. The Court of Appeal reversed, finding that so long as the relationship grew out of a contract, it was covered. Lexology reports on the decision.

Britain To Appoint Its First Catholic Woman As Ambassador to the Vatican

London's Sunday Telegraph today reports that Britain's coalition government will reach out to Catholics through a high profile appointment for Britain's next ambassador to the Vatican. The Foreign Secretary has endorsed naming former Conservative MP Ann Widdecombe, who would be the first Roman Catholic woman to hold the position. No Catholic held the ambassadorial position before 2006, when the current British ambassador to the Vatican, Francis Campbell, was appointed. Widdecombe, who is fluent in Latin, is an outspoken defender of the Church's traditional teachings. She converted to Catholicism in 1993 after the Church of England voted to ordain women priests. The nomination must be sent to the Vatican for final approval, and will be announced formally later this summer. The current ambassador will resign after the Pope's visit to Britain in September.

DC Circuit: Researchers Have Standing To Challenge Change In Stem Cell Grant Policy

In Sherley v. Sebelius, (DC Cir., June 25, 2010), the U.S. Court of Appeals for the D.C. Circuit, reversing the trial court, held that two doctors who specialize in adult stem cell research have "competitor standing" to challenge the Obama administration's lifting of limitations on NIH funding of embryonic stem cell research. Plaintiffs are injured because they will now find the application process for stem cell research more comeptitive, and will need to invest more time and resources to craft successful grant applications. The court did not pass on the merits of the claim that the new NIH Guidelines are in violation of Congressional limits on the use of Department of Health and Human Services funds to support research that will harm or destroy human embryos. The district court had denied standing to all plaintiffs, including the Christian Medical Association and a Christian adoption agency. (See prior posting.) Reuters reports on the decision. Alliance Defense Fund issued a press release on the decision, as did Advocates International.

$1.15M Settlement Reached In Church Zoning Case

Alliance Defense Fund announced Friday that a $1.15 million settlement had been reached in St. Benedict Center v. Town of Richmond, a suit in New Hampshire state court in which a conservative Catholic religious organization brought constitutional and RLUIPA challenges to various zoning rulings restricting its building of a chapel and religious school. (Full text of complaint.) In October, the court granted summary judgment to St Benedict holding that the requirement that a house of worship obtain a special zoning exception is an unconstitutional prior restraint on speech and that various conditions imposed on St Benedict's site plan violate the "substantial burden" provisions of RLUIPA. However the court held that individual members of the Planning Board and Zoning Board of Appeal had absolute judicial immunity for their actions, despite allegations that the Planning Board chairman was motivated by his disagreement with St. Benedict's teachings on abortion, homosexual behavior, pornography and divorce. (Full text of decision.) (See prior posting.)

In April, the parties submitted a proposed settlement, but nearby landowners intervened to object to the settlement. The court ordered the town's Board of Selectmen to confer with town zoning bodies on the matter. Now, apparently after such consultation, a settlement has been reached. In addition to payment of damages and attorneys fees, the town has agreed to a separate settlement that makes completion of the Church and school building possible.

Saturday, June 26, 2010

Pagan Group Is Suing To Obtain Property Tax Exemption

Today's Greene County (NY) Daily Mail reports on the long-running controversy between a Pagan sect and the town of Catskill over whether an historic inn owned by the sect is entitled to a tax exemption. The Maetreum of Cybele, Magna Mater, a 501(c)(3) religious organization, purchased the former Central House in 2002. It uses it as a convent to house priestesses, as well as hosting public events and providing temporary housing and other services to the needy. The Maetreum was granted a tax exemption in 2006, but it was taken away a year later because of a split in the group. Apparently the town now argues that the property should be classified as an inn or lodge, whie the Maetreum insists that it is a religious retreat center for pagans. The Maetreum filed suit in state court last year to regain its tax exemption, and an initial hearing was held last December. Currently discovery is ongoing.

Friday, June 25, 2010

Concerns of Britain's Office for Judicial Complaints Over Judge's Comments Are Disclosed

Britain's National Secular Society (NSS) reports today that a press release earlier this month by Britain's Office for Judicial Complaints (OJC) clearing part-time judge Cheri Booth (wife of former Prime Minister Tony Blair) of charges of judicial misconduct omitted concerns that OJC had about her conduct. In sentencing a Muslim man in an assault case, Booth said she was imposing a suspended sentence because he is a religious person. An OJC statement said that Booth's comments did not constitute judicial misconduct and that no disciplinary action is necessary. (See prior posting.) However, a letter to NSS, the group which originally filed the complaint against Booth, said: "The Lord Chancellor and Lord Chief Justice have expressed some concern about the impact Recorder Booth [sic] comments may have had on the public perception of the judiciary and the sentencing process. All judges must, of course, be very mindful of how they express themselves when dealing with sensitive issues of equality and diversity so as not to create the impression that some individuals can expect more leniency than others." It also disclosed that Booth would receive "informal advice from a senior judge."

Court Says Hawaii Church's Challenge To Cannabis Laws Is Not Ripe

In Oklevueha Native American Church of Hawaii v. Holder, 2010 U.S. Dist. LEXIS 61844 (D HI, June 22, 2010), an Hawaii federal district court dismissed on ripeness grounds a pre-enforcement challenge to federal drug laws by a church that uses cannabis in its religious ceremonies and by its spiritual leader. In the amended complaint involved in the case, plaintiffs allege that the church's 250 members fear criminal prosecution for cultivating, consuming, possessing, and distributing cannabis. However, according to the court, plaintiffs allege neither a concrete plan to violate federal drug laws nor a specific threat of law enforcement against them. The complaint also failed to describe in sufficient detail plaintiffs' use of cannabis, how they acquire it and their future intent. Plaintiffs also sought return or compensation for $7000 worth of cannabis seized from FedEx in transit to plaintiffs. The court concluded that plaintiffs' tort claims for theft and conversion are barred by sovereign immunity and the Supremacy Clause. However the court left open for further proceedings claims under the federal Religious Freedom Restoration Act for return of the cannabis or compensation. (See prior related posting.)

Secularists Begin Billboard Campaign Objecting To "Under God" in Pledge

The North Carolina Secular Association this week, in time for Independence Day, launched a billboard ad campaign objecting to the phrase "under God" in the Pledge of Allegiance. Yesterday's Christian Post carries a photo of the billboard that appears throughout the state. It superimposes the phrase "One Nation Indivisible" (leaving out "under God") on an American flag. One of the billboards is on Charlotte's Billy Graham Highway. Similar campaigns have been undertaken in other states. (My Fox Tampa Bay).

New Focus On Elena Kagan's Religious Liberty and Church-State Views

As hearings on the nomination of Elena Kagan for the Supreme Court approach, more focus is now being given to her views on religious liberty and church-state separation. Brookings Institution fellow Melissa Rogers suggests that Kagan may be more sympathetic to free exercise claims than is Justice Stevens whom she is replacing.

Americans United for Separation of Church and State has written to the Chairman and Ranking Member of the Senate Judiciary Committee raising concerns about Kagan's "views on the critical relationship between religious liberty claims and civil rights laws" and about "her position on core Establishment Clause values, such as the principle that the government may not fund 'pervasively sectarian' organizations." (Press release, full text of letter).

Several Jewish groups have weighed in on the Kagan nomination. The Union of Orthodox Jewish Congregations wrote to to members of the Senate Judiciary Committee saying that "Kagan has demonstrated a reassuring appreciation for the rights guaranteed by the Free-Exercise clause and a growing respect for a balanced approach to the Establishment Clause which allows for appropriate government support for the work of religious organizations." (Press release, full text of letter). The Religious Action Center for Reform Judaism wrote members of the Judiciary Committee recommending a number of questions that should be asked of Kagan. They cover not just church-state matters, but also issues such as the death penalty, corporate election contributions, abortion, gay marriage, environmental laws and Presidential powers. (Full text of letter). The Rabbinical Alliance of America (representing 850 right wing Orthodox rabbis) issued a strong statement denouncing the Kagan nomination, releasing it through Christian Newswire.

The Secular Coalition for America issued a statement opposing the Kagan nomination "until she makes her support for church-state separation much more clear and emphatic." It also sent a letter to the chairman of the Senate Judiciary Committee with suggested questions for Kagan.

Meanwhile, US News & World Report says that one of the key issues that Republican Judiciary Committee members will raise with Kagan is her praise in 2006 for activist Israeli Supreme Court Judge Aharon Barak. In presenting Barak with an award at Harvard Law School, Kagan called him "my judicial hero."

The Judiciary Committee hearings begin on Monday, June 28. The Committee has extensive materials on the nomination posted on its website. The hearings will also be webcast through the Committees website.

Hindu American Leader Writes On Political Candidates From Dharma Faiths

An op-ed by Aseem Shulka, co-founder of the Hindu American Foundation, published Wednesday by the Washington Post, laments the fact that the two best known Indian-American political figures, both with backgrounds in Dharma faiths, emphasize their Christianity. Governor of Louisiana, Bobby Jindal, who grew up in a Hindu family, converted to Catholicism while in High School. Nikki Haley, winner of the Republican gubernatorial primary in South Carolina this week, who at one time melded her Sikh heritage with her husband's Methodist faith, has increasingly emphasized her evangelical Christian beliefs. Shulka writes:

Jindal and Haley, as brilliant and dynamic trailblazers, have thrown open the doors to political office, laying waste to minefields of ethnic slurs and perverse allegations that naysayers put in their way. Race is not an impediment to high office, and that is something to celebrate, no doubt. But in their public remonstrations of their parent's faiths, Jindal and Haley tell well over three million Hindu and Sikh Americans that their time has not yet come as people of faith. And in their absolute denial of their religious heritage, they deny something far greater: a society that privileges pluralism, that no one religion has the monopoly on Truth, and that Hindus, Sikhs, Muslims, Pagans, agnostics and atheists may invest differently towards the afterlife, but can live in this life with all of the humanity, generosity and yes, frailty of any of those that presume to lead our states or nation today.

Thursday, June 24, 2010

Supreme Court Rejects Facial Challenge To Release of Petition Signers, But Says As-Applied Challenge May Win

The U.S. Supreme Court today by an 8-1 vote rejected a facial challenge to Washington state's Public Records Act, but left open the possibility that a pending as-applied challenge could succeed. At issue in Doe v. Reed, (S. Ct., June 24, 2010), are objections to the release of the names of signers of a petition seeking a referendum to overturn Washington's expansion of the rights of domestic partners. The Court concluded that the state's interest in protecting the integrity of the electoral process is strong enough to justify the public release of most referendum petitions. But here plaintiffs claim that the objective of those seeking release is to post the names of signers on the Internet and urge backers of the domestic partnership bill to contact and harass them. Courts may prohibit disclosure if the signers can show a reasonable probability they will face harassment, threats or reprisals from either government officials or private parties.

While there was broad agreement on the result, the case produced six separate opinions, including a dissent by Justice Thomas who argued that the facial challenge should succeed because there are always less restrictive means for the state to use to preserve the integrity of the referendum process. Various concurring opinions differed on the strength of the remaining as-applied challenge in the case. (See prior related posting.) The Wall Street Journal reports on today's decision.

FLDS Member Gets 17 Years For Sexual Assault of Minor In Celestial Marriage

A Texas trial court judge yesterday sentenced FLDS member Abram Harker Jeffs to 17 years in prison and a $10,000 fine for sexual assault of a child. Jeffs was convicted of assaulting a 15-year old with whom he had entered a "spiritual" or "celestial" marriage while he was legally married to another woman. Jeff has three other wives and children in other states. Yesterday's San Angelo Standard Times reports that Jeffs could have received up to life in prison, and that the sentence he received is the lowest first-degree felony sentence yet for a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints. Much of the evidence in Jeffs' trial was seized in the high-profile April 2008 raid of the FLDS Yearning for Zion Ranch.

Fired Prison Chaplain States Valid 1st Amendment Claim

In Holmgren v. State of Minnesota, (MN Ct. App., June 22, 2010, a Minnesota state appellate court held that a former prison chaplain's First Amendment free expression may have been violated when she was fired for speaking out against a new program being considered by the state which she believed would violate the Establishment Clause. Kristine Holmgren, employed as a non-denominational chaplain at the state's Shakopee facility, learned that the state-funded InnerChange Initiative Program was being considered for Shakopee. She believed the program's purpose was to convert inmates to Christianity using state dollars, and knew that a similar program was under court challenge in Iowa. (See prior posting.) She pressed the warden on the issue, including at a staff meeting, for which the warden fired her.

The court denied defendant's motion for summary judgment, concluding that the facts alleged by Holmgren were sufficient to establish a First Amendment violation. She at least raised a factual question as to whether she was speaking as a citizen rather than as part of her employment duties. Her criticisms involved a matter of public concern, and her right to speak about the issue outweighs the state's interest in an orderly work place. Defendant does not have qualified immunity because case law clearly establishes Holmgren's right not to be fired for raising potentially illegal conduct by government officials.

Native Americans Seek To Stop Reservoir Construction At Cemetery Site

In Santee, California, efforts are underway on several fronts to prevent the Padre Dam Municipal Water Board from proceeding with construction of a reservoir and pipeline in an area that was a burial ground for the Viejas Band of Kumeyaay Indians. East County Magazine reported yesterday that after human remains and artifacts were discovered, a state Superior Court judge issued a temporary restraining order to stop construction on part of the project. The Viejas Tribe plans to seek an extension of the order to the entire construction site at a hearing on Friday. On June 17, the California Native American Heritage Commission ruled the site to be a sanctified cemetery and ceremonial site, and requested a halt to construction while mitigation measures, including tribal monitoring during grading activities, are considered. However construction continued until the state Attorney General threatened to file suit to stop further damage to the area while the Water District reviews the Commission's proposed mitigation measures. Padre Dam authorities say construction is necessary to protect against firestorms and delays cost some $150,000 per month. It says moving the project to a new site would cost $10 million.

New York Legislature Passes Anti-Bullying Bill

WGRZ News reports that on Tuesday the New York state Senate passed by a vote of 58-3 an anti-bullying bill, the Dignity For All Students Act. The bill which was previously approved by the state Assembly bars discrimination or harassment of students by school employees or other students. It provides:

No student shall be subjected to harassment by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.

The bill, which will now go to Gov. Patterson for his signature, also requires school boards to develop policies and guidelines to foster a school environment free from harassment and discrimination.

Archdiocese Accused of Fraud In Sex Abuse Lawsuit Seeking To Skirt Statute of Limitations

USA Today reports on a lawsuit filed Tuesday against the Catholic Archdiocese of Los Angeles (CA) alleging fraud and negligence in allowing Rev. Jeffrey Newell to continue to serve as a priest long after sex abuse charges against Newell were reported to church officials in 1994. Plaintiff alleges he was defrauded into not suing earlier because he believed the Archdiocese had prevented Newell from ever working around children as it promised to do. While Newell was removed from the Los Angeles archdiocese and transferred to Tijuana, Mexico a year before the victim reported the abuse, he continues to hold daily Mass there with drums and electric bass. He says he has led a chaste life for the last 20 years. By using fraud, plaintiff and others who have invoked a similar theory, get around statute of limitations problems, since fraud tolls the statute and individuals have three years after discovering they were a victim of fraud to sue.

Wednesday, June 23, 2010

Court Refuses To Halt Civil Rights Investigation of Home School Group

A state trial court judge in Hamilton County, Indiana has refused to intervene to prevent the Indiana Civil Rights Commission from investigating discrimination charges against a home schooling organization. According to today's Indianapolis Star, the Fishers Adolescent Catholic Enrichment Society (FACES), which organizes group activities for home-schooled children, claims that the burden of the Civil Rights investigation on the small group violates its members freedom of religion and association. The investigation grows out of a mother's complaint that the group refused to accommodate her daughter's food allergy to chicken at a 2008 All Souls' Day Masquerade Ball. The group expelled the girl's family after they filed a discrimination complaint. The court held that FACES has suffered no harm that would justify judicial intervention, even though it has suspended its activities because of the litigation. (See prior related posting.)

Volunteer Police Chaplain Fired Over Ties To Holy Land Foundation Case

Last December, the Illinois State Police appointed seven clergy to be volunteer police chaplains. However, according to today's Chicago Tribune, detailed background checks were not carried out at the time. Now one of those appointed as a Muslim chaplain, Sheikh Kifah Mustapha, associate director of the Mosque Foundation in Bridgeview, has had his appointment revoked. It turns out he was named as an unindicted co-conspirator in the case against Holy Land Foundation for Relief and Development, the Muslim charity whose founders were convicted of sending funds to Hamas. (See prior posting.) Mustapha helped raise funds in Chicago for the Holy Land Foundation. Today the Council on American Islamic Relations will hold a press conference to object to the State Police action against Mustapha.

High School Diplomas Drop "In the Year of Our Lord"

Today's New Haven (CT) Register reports that after receiving a complaint last year, this year for the first time the diplomas awarded by New Haven, Connecticut high schools have dropped the phrase "in the year of our Lord". The city said that none of its other public documents use the phrase in reciting dates, while school superintendent Reginald Mayo said: "I'm surprised it took this long for someone to notice it. We certainly don’t want to offend anyone."

Gay Pride Organizers Seek To Exclude Anti-Gay Christian Evangelist

In Minneapolis (MN), organizers of a gay pride festival expected to draw 200,000 people want the Minneapolis Park Board to bar a Christian evangelist from handing out literature at the event. According to yesterday's Minneapolis Star Tribune, the Park Board denied a booth to evangelist Brian Johnson, but approved a request that he be allowed to hand out anti-gay literature at Twin Cities Pride, saying that since it is a public event he is free to share his views so long as he does not disturb others. However festival organizers say they will file suit in federal court today seeking an injunction. They say Johnson is welcome to attend, but not to hand out literature, relying on the Supreme Court decision in Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston that allowed St. Patrick's Day Parade organizers to exclude an LGBT group from marching. The Park Board says, however, that the case is inapplicable; since Johnson was denied a booth at Twin Cities Pride, he is not part of the event.

UPDATE: Our Twin Cities (6/24) reports that organizers of the Twin Cities Pride Festival have filed a lawsuit in federal court seeking an emergency order to reverse the decision of the Minneapolis Park and Recreation Board that would allow homosexual critic Brian Johnson to hand out at the festival written materials supporting his message of sin and repentance.

UPDATE2: On Top Magazine (6/26) reports that federal district court judge John Tunheim has refused to bar Brian Johnson from Loring Park during the Gay Pride event. Event organizers said: "As long as Mr. Johnson and his family do not create a disturbance, they can walk the Festival and distribute their leaflets and Bibles to willing attendees. But should their behavior be as troubling as it was at last year's festival, we shall ask Minneapolis Police to remove them."

Court Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Heineman, (D NE, June 21, 2010), a Nebraska federal district court upheld the constitutionality of the Nebraska Funeral Picketing Law. In so doing, the court refused a request by Shirley Phelps-Roper, a member of Westboro Baptist Church, to issue a preliminary injunction against enforcement of the statute . Westboro members often picket funerals of veterans carrying signs proclaiming that God is punishing America for its sins, which include tolerating homosexuality. The court distinguished the 8th Circuit's decision (see prior posting) striking down Missouri's funeral picketing law, saying:

The government interest underlying the NFPL is distinguishable from, and more significant than, the government interest underlying the statute addressed in [Phelps-Roper v.] Nixon. There, the Eighth Circuit ruled that a state’s interest in protecting funeral attendees as a group was outweighed by Phelps-Roper’s First Amendment right.... However, it is not apparent that the ruling in Nixon would apply to a statute designed to protect a much narrower group: family members of the deceased.

Relying instead on a 6th Circuit decision upholding Ohio's funeral picketing law (see prior posting), the court concluded that Nebraska's law:

is narrowly tailored to serve a significant government interest, i.e., the protection of family members attending funeral and burial services, and leaves ample alternative channels for Phelps-Roper’s communications that are protected by the First Amendment.

Yesterday's Wichita (KS) Eagle reports on the decision.

Tuesday, June 22, 2010

Michigan High Court Rejects Catholic School's Zoning Appeal

In Shepherd Montessori Center Milan v. Ann Arbor Charter Township, (MI Sup. Ct., June 18, 2010), the Michigan Supreme Court rejected a Catholic school's claim that the denial of its zoning variance request amounted to an infringement of its equal protection rights. The Court rejected plaintiff's claim that the Township treated it differently than similarly situated entities and also rejected the school's charge that the Zoning Board of Appeals "discriminatorily applied the facially neutral zoning ordinance against it because of its religious affiliation." The Court said:

ZBA member Laporte validly questioned plaintiff's attorney about the basis for the assertion that religious use should be favored over secular uses. Nothing in the exchange demonstrates bias against Catholics or Catholic primary education. The questions were asked to clarify plaintiff’s attorney’s own statements. Nothing in the minutes of the ZBA hearing supports the conclusion that the ZBA denied plaintiff the variance because of a bias against plaintiff's religious affiliation.

Zoo Enjoined From Barring Religious Group's Sale of T-Shirts

In Higher Taste v. City of Tacoma, 2010 U.S. Dist. LEXIS 60638 (WD WA, June 4, 2010), a Washington federal district court issued a preliminary injunction prohibiting the enforcement of a resolution adopted by the Metro Park District of Tacoma restricting the sale of goods in the entrance area of the Point Defiance Zoo and Aquarium. Plaintiff, Higher Taste, is a religious organization whose purpose is "to propagate, through the dissemination of educational literature and other expressive items, such as message-bearing T-shirts, the principles of non-violence, animal protection, vegetarianism, and spiritual ecology (as set forth in the Vedic literatures of ancient India)...." The Park District's resolution barred Higher Taste from selling their T-shirts, or distributing them in exchange for a voluntary contribution, on the walkway leading to the front of the zoo. The court concluded that the Park District had not met its burden of showing that its restriction is narrowly tailored to meet its significant interests in park aesthetics and public safety.

Court Upholds Texas Rejection of Graduate Program In Creation Science

In Institute for Creation Research Graduate School v. Texas Higher Education Coordinating Board, (WD TX, June 18, 2010), a Texas federal district court upheld the Texas Higher Education Coordinating Board's refusal to grant the Institute of Creation Research Graduate School a certificate of authority to offer a Master of Science degree with a major in Science Education. The Texas Education Code (Sec. 61.301) authorizes the Board to regulate the use of "academic terminology" in order "to prevent deception of the public resulting from the conferring and use of fraudulent or substandard college and university degrees." The Board denied ICRGS's application because its curriculum which was designed to promote "scientific creationism" and "Biblical creationism" does not adequately cover the breadth of knowledge of the discipline taught. The Board's decision was based on the conclusion by the Commissioner of Higher Education that the school's program "inadequately covers key areas of science and their methodologies and rejects one of the foundational theories of modern science," and thus "cannot be properly designated as either 'science' or 'science education.'"

The court rejected ICRGS' claim that the Board engaged in "viewpoint discrimination", finding no animus toward any religious viewpoint. Applying a "rational basis" standard, the court rejected claims that the Board violated ICRGS' free exercise and free speech rights, as well as claims under the Texas Religious Freedom Restoration Act, and the equal protection and due process clauses of the 14th Amendment. The court concluded that the Board's "decision is rationally related to the State's legitimate interest in protecting the public by preserving the integrity of educational degrees." (See prior related posting.)

Rubashkin To Be Sentenced To 27 Years In Financial Fraud Case

Yesterday Iowa federal district judge Linda Reade released a 52-page Sentencing Memorandum in the case of United States v. Rubashkin. In it she concludes that at the hearing scheduled for today she will impose a sentence of 27 years in prison, followed by five years of supervised release, on Sholom Rubashkin who was convicted on 86 counts of financial fraud. Rubashkin, former vice president of the kosher meat processing firm Agriprocesors in Postville, Iowa, will also be ordered to pay restitution totalling $26.85 million to two banks and a livestock supplier. The sentence imposed is at the low end of the Federal Sentencing Guidelines range for the crime and offender characteristics involved as computed by the court, but is two years more than the prosecution requested. (See prior posting).

The court rejected a number of arguments for a downward departure in sentencing, including that "Defendant did not commit the offense conduct for personal gain or out of a sense of greed, but rather, 'in order to continue what he viewed as the critical Lubavitch mission of providing Kosher food to the Jewish community.'" It also rejected government arguments for an upward departure, but said it reserved the right to consider an upward departure if it is required to re-sentence Rubashkin. Despite this threat, according to the New York Times Rubashkin will appeal the decision to challenge the court's interpretation of the Sentencing Guidelines. Rubashkin supporters have conducted an extensive campaign on Rubashkin's behalf, arguing that he has been unfairly treated. (See prior posting.)

Monday, June 21, 2010

USCIRF Urges Obama To Publicly Raise Human Rights Concerns With Russian Leader

Russian President Dmitry Medvedev will be in the United States this week to promote Russian-US economic ties. Tomorrow he visits California's Silicon Valley and on Thursday he will meet with President Obama in Washington. (Business Week). Last week, Leonard Leo, recently re-elected chairman of the U.S. Commission on International Religious Freedom, wrote President Obama urging him to publicly raise religious freedom and other human rights issues with the Russian leader. (Full text of letter.) The letter urges the President to press for reform of Russia's law on extremism and "to protest the impunity accorded to Russian officials and others who commit gross human rights violations as well as violent hate crimes against members of Russia’s religious and ethnic minorities...." The letter goes on to express concern that "the de facto favored status of the Moscow Patriarchate Russian Orthodox Church results in difficulties for minority religious communities, particularly those officially deemed non-traditional, such as the non-Moscow Patriarchate Russian Orthodox and Protestant communities."

RLUIPA Lawsuit Filed By Hasidic Group Against New York Village

A lawsuit has been filed against the village of South Blooming Grove, New York by a Satmar Hasidic group that wants to restore an old club house at a former resort on Lake Anne. Today's Hudson Valley Times Herald-Record reports that the lawsuit, originally filed in state court but transferred to federal court on the judge's order, claims that the village's refusal to consider Sheri Torah's application violates RLUIPA. The village says the application by the Jewish group raises questions. Originally Sheri Torah sought to build a synagogue, then it asked for a special use permit to build a yeshiva, and finally it filed a site plan for a subdivision with more than 500 homes. Sheri Torah, a group opposed to the leadership in the nearby Satmar community of Kiryas Joel, is associated with a group of investors who have been trying for years to develop the 800 acres-- nearly half the land in the village-- that belonged to the former resort on Lake Anne. The village's attorney accuses Sheri Torah of trying to bully their way to get land use approval. According to Wikipedia , South Blooming Grove was incorprated in 2006 to check expansion of the Satmar Hasidim in Kiryas Joel. Since then, two other RLUIPA lawsuits have been filed against it.

Louisiana Passes Religious Freedom Act

The Louisiana legislature has passed and sent to Gov. Bobby Jindal for his signature SB 606, the Preservation of Religious Freedom Act. As reported by the Baton Rouge Advocate, final enactment came yesterday as the state Senate voted 30-6 to concur in House changes. (Vote history). The bill provides that state and local governments must show both a compelling interest and use the least restrictive means before they may substantially burden a person's exercise of religion, even through a facially neutral rule or a rule of general applicability. Opponents say the law will open floodgates for costly lawsuits.

Sunday, June 20, 2010

Recent Prisoner Free Exercise Cases

In Powell v. Raemisch, 2010 U.S. Dist. LEXIS 57798 (WD WI, June 11, 2010), a Wisconsin federal district court permitted a Muslim inmate to proceed with free exercise and RLUIPA claims alleging that he was denied Ramadan meal bags for 18 days during Ramadan in 2009.

In Meyer v. Wisconsin Department of Corrections, 2010 U.S. Dist. LEXIS 59437 (WD WI, June 16, 2010), a Wisconsin federal district court rejected an inmate's free exercise and RLUIPA challenges to the prison's refusal to furnish him an emblem of the "world tree" as a symbol of his claimed religion, Shamanism. The court said plaintiff could have reverted to the classification of Paganism as his religious preference and received a blank Book of Shadows in which he could have drawn a world tree emblem. There was no evidence that this would have been a substantial burden.

In Rosales v. Abbott, 2010 U.S. Dist. LEXIS 59809 (WD TX, June 16, 2010), a Texas federal magistrate judge recommended rejecting a Muslim inmate's objection that he was not permitted to change his name in accordance with religious practice. The court concluded that the Texas statute barring name changes by felons does not violate plaintiff's free exercise rights.

In Carney v. Hogan, 2010 U.S. Dist. LEXIS 59440 (ND NY, June 15, 2010), a New York federal district court accepted a magistrate's recommendations (2010 U.S. Dist. LEXIS 59439, March 30, 2010) and permitted plaintiff to move ahead with his complaint that the Sex Offender Treatment Program violates his free exercise rights by requiring his participation in faith-based programs as a condition of his release from civil confinement. However the court held that defendants had qualified immunity from damage actions. Only plaintiff's claim for injunctive relief
can proceed.

In Merrell v. Lawler, 2010 U.S. Dist. LEXIS 60088 (MD PA, June 16, 2010), a Pennsylvania federal district court allowed an inmate to move ahead with his claim that his free exercise rights were infringed when he was not permitted to attend religious services in the prison chapel.

In Kramer v. Raemisch, 2010 U.S. Dist. LEXIS 60235 (WD WI, June 16, 2010), a Wisconsin federal district court refused to permit inmates in different Wisconsin prisons who allege various restrictions on their ability to practice Odinism to join their claims in a single lawsuit. They claimed they were denied the right to engage in group religious exercise, to possess various religious items and to consume pork as part of a religious diet and at religious feasts.

7th Circuit: "Deific Decree Exception" In Insanity Defense Has Establishment Problems

In Wilson v. Gaetz, (7th Cir., June 17, 2010), the U.S. 7th Circuit Court of Appeals has raised an interesting Establishment Clause concern over a traditional aspect of the insanity defense. The case involved a murder defendant who suffered from delusions about a sinister Catholic conspiracy. A famous 1915 New York case decided by then-Judge Cardozo created the "deific decree" exception to the principle that an insanity defense requires that the defendant show his mental illness prevented him from appreciating the wrongfulness of his act. Cardozo argued that "if ... there is an insane delusion that God has appeared to the defendant and ordained the commission of a crime, ... it cannot be said of the offender that he knows the act to be wrong" even though he knows that it is illegal. Here the 7th Circuit observed:

[T]o distinguish between "deific" and all other delusions and confine the insanity defense to the former would present serious questions under the First Amendment’s establishment clause, and it is notable therefore that Judge Cardozo placed his emphasis on a defendant’s inability to appreciate his act as being morally wrong, whatever the source of his moral beliefs.

9th Circuit Says Amended Mining Plan For Sacred Mt. Tenabo Violates NEPA

In Te-Moak Tribe of Western Shoshone of Western Nevada v. U.S. Department of the Interior, (9th Cir., June 18, 2010), the 9th Circuit held that the Bureau of Land Management's approval of an amendment to a phased exploration project on sacred Indian land in Nevada violated the National Environmental Policy Act. Cortez Gold Mines, Inc. plans to explore for minerals in the area that is traditionally linked to the religion and culture of the Te-Moak and other Western Shoshone tribes. In particular, Mount Tenabo, traditionally used for prayer and meditation, is considered the source of life by the tribes and figures in their creation stories. The court concluded that the BLM's required Environmental Assessment of the amendment to the project failed to adequately consider the cumulative impacts to Cultural Resources and Native American Religious Concerns of the proposal. However the court concluded that the project did not violate either the National Historic Preservation Act or the Federal Land Policy and Management Act. After consultation with the Tribe, BLM has already designated Horse Canyon and parts of Mount Tenabo-- both within the project area-- as eligible for inclusion on the National Register of Historic Places. Courthouse News reports on the decision.

New Zealand Court Faces Religious Accommodation Issue In Community Service Sentence

New Zealand's Dominion Post yesterday reported on an unusual religious accommodation issue that has arisen in a community service sentence imposed by a New Zealand court on a recent Muslim convert. Last December, Jason Osborne was sentenced to 300 hours of community work for failure to pay $15,334 of fines. His probation officer assigned him to work in the recycling area of a rubbish dump and Osborne refused. Corrections officials claim Osborne told them he needed to pray 5 times each day and could not do so in front of non-Muslims. Osborne however says his only objection was that at the rubbish dump he could not find a clean enough place to pray at the twice-per day prayer times during his work schedule. After being threatened with prison if he did not complete his community service, Osborne found a different probation officer who allows him to do his community work as Splash Planet, and he has completed 50 hours during the past three weeks. On Thursday he appeared in court in Hastings to plead guilty to not completing his community work. After holding him in custody over night, the court released him on bail for eight weeks for him to complete his 300 hours of service.

Saturday, June 19, 2010

6th Circuit Permits Evangelist To Distribute Literature On Outskirts of Arab Festival

In Saieg v. City of Dearborn, (6th Cir., June 17, 2010), the U.S. 6th Circuit Court of Appeals issued an injunction pending appeal to permit a Christian evangelist to distribute religious literature on the streets in the "outer perimeter" or "buffer zone" of the 2010 Dearborn Arab International Festival this week. A federal district court had upheld festival rules that required literature distribution take place only from a booth in the vendor area. (See prior posting.) The 6th Circuit said that prior case law supports restricting leaflet distribution among crowds in the core area of the Festival, but not in the surrounding streets. The Thomas More Law Center issued a release on the decision and the Detroit Free Press reports on the decision.

Meanwhile the Detroit Free Press reports that on Friday four Christian missionaries with a group called Acts 17 Apolegitics were arrested at the Festival on charges of disorderly conduct.

Groups Suggest Questions For Kagan On Establishment and Free Exercise

A release yesterday from the Religious Action Center for Reform Judaism reports that 21 religious and secular organizations have sent a joint letter to the Senate Judiciary Committee suggesting questions that should be asked during the Elena Kagan hearings on the Supreme Court nominee's views on the First Amendment religion clauses. Among other things, the five questions focus on instituitonal as well as individual religious liberty concerns, questions of taxpayer standing and the nominee's broader views about the Court's religion clause jurisprudence.

Quebec Court Orders Exemption From Religious Culture Course For Catholic School

In Canada, a Quebec Superior Court yesterday ordered the provincial government to grant an exemption from the mandatory course in Ethics and Religious Culture to a private Catholic high school. In a reform implemented last year, Quebec required both public schools and private religious schools (most of which receive some government funding) to offer a course in Ethics and Religious Culture covering Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. (See prior posting.) The Montreal Gazette reports that Loyola High School has won the right to teach about other religions and ethical creeds from a Catholic perspective rather than following the secular teaching guidelines created by the Education Department. The court ruled that otherwise the province would be infringing the school's religious freedom guaranteed by the Quebec Charter of Human Rights and Freedoms. The court wrote: "The obligation imposed on Loyola to teach the ethics and religious culture course in a lay fashion assumes a totalitarian character essentially equivalent to Galileo’s being ordered by the Inquisition to deny the Copernican universe." A broader challenge to the new course filed by parents was rejected last year. (See prior posting.)

Suit Planned Against Legion of Christ Over Sex Abuse

AP reports that a Mexican man, Jose Raul Gonzalez, plans to file suit on Monday against the Legion of Christ claiming that the now-deceased priest who founded the religious order was his father and sexually molested him. Gonzalez' mother, Blanca Lara Gutierrez, claims that Legion founder Rev. Marcial Maciel-- posing as an oil company employee and CIA agent-- fathered two children with her, adopted another, and proceeded to abuse two of the three children. The suit, charging fraud and negligence, will be filed in Connecticut where the Legion's U.S. headquarters are located. Plaintiff Gonzalez says that Maciel promised him and his brothers a trust fund. Gonzalez previously asked the Legion for $26 million to remain quiet about his charges against Maciel.

Friday, June 18, 2010

New Jersey Rabbi Pleads Guilty To Money Laundering

The Newark (NJ) Star-Ledger reports that yesterday Rabbi Eliahu Ben Haim, former head of a prominent synagogue in Deal, New Jersey, plead guilty in a New Jersey federal district court to money laundering charges. Ben Haim was one of five rabbis from the Syrian Jewish community and 39 others arrested last year in a high profile federal investigation of public corruption and money laundering. (See prior posting.) The rabbi used religious charities to launder $1.5 million purportedly from illegal activities provided to him by a government informant. According to a plea agreement, Ben Haim will cooperate in an investigation of his past tax returns, but he did not agree to cooperate in the prosecution of others in the case. Ben Haim remains free on $1.5 million bail.

Priest Publicly Challenges La Crosse Diocese's Standards In Reviewing Abuse Charges

Yesterday's Milwaukee (WI) Journal Sentinel reports that James Connell, a priest and canon lawyer who serves on the Archdiocese of Milwaukee Review Board has issued an open letter (full text) complaining that the standard of proof used by the Diocese of La Crosse's Child Sexual Abuse Review Board in evaluating whether to pursue a case against a priest or deacon is too high. He says that the Vatican requires any sexual abuse charge against a priest that "has a semblance of truth" to be referred to the Vatican's Congregation for the Doctrine of the Faith. (Vatican Guide).(See prior related posting.) However the La Crosse Diocesan Review Board that assists the Bishop in assessing charges apparently uses a standard of "moral certitude which excludes every prudent doubt or every doubt founded on positive reasons." Connell says that data for La Crosse shows a substantially higher percentage of unsubstantiated charges of abuse that the national average, and that this might be due to using too high a threshold in evaluating evidence. Connell went public after three months of trying to get the Diocese to make changes.

The Diocese of LaCrosse yesterday issued a Media Statement in response, calling Connell's statement a "personal highly technical opinion of church law." It says that it is fully complying with the Charter for the Protection of Children and Young People , and that a review of cases before the Review Board found none in which "a finding of insufficiency was based upon any canonical technicality." It says its standard of proof is one of "sufficiently confirmed." A May 11 letter (full text) from Msgr. Richard W. Gilles, the La Crosse Diocesan Administrator to the USCCB National Review Board says that the Diocese has consulted with its own canonist, Father Michael Gorman. The letter continues: "While Father Gorman points out some ambiguities which could give rise to some confusion about the burden of proof, Father Gorman does not share Father Connell’s views and opinions."

Lawsuit Challenges Coney Island Concerts Invoking Protection of Nearby Religious Services

In Brooklyn, New York, opponents of a proposed $64 million amphitheater project in Coney Island's Asser Levy Park filed suit in state court yesterday, invoking a city law designed to protect religious congregations. (See prior related posting.) The law prohibits amplified sound within 500 feet of religious institutions, schools, courthouses and other gathering places when they are in session. An Orthodox synagogue, Sea Breeze Jewish Center, which is 300 feet from the park, has services every day. In the summer, evening services run until 10:00 p.m. Already police do not issue sound permits for the park for Friday and Saturday nights because of larger services at the synagogue on the Sabbath. But up to now synagogue members have not complained about concerts on other nights in the park's existing band shell. Now however, according to the New York Daily News, these weekday concert are being challenged. At stake are this year's free summer concerts (schedule), including ones by the Beach Boys and Neil Sedaka. A hearing is scheduled for June 30; the Neil Sedaka concert is scheduled for July 15. Plaintiffs say if they win on these concerts, that should establish precedent for stopping the entire amphitheater project.

RLUIPA Suits Settled-- Shabbos House OK'd; Prayer Breakfast Will Move

AP yesterday reported that the village of Sufferin, New York has settled a RLUIPA lawsuit brought against it by the Department of Justice chllenging the village's refusal to grant a zoning variance to permit the operation of a "Shabbos House" near Good Samaritan Hospital. The Shabbos House allows observant Jews to stay within walking distance of the hospital so they can visit patients without violating Jewish religious law that bars driving and use of money on the Sabbath. The settlement allows up to 14 people to stay overnight at the Shabbos House. The operator of the facility, Bikur Cholim, Inc., agreed to apply for a site-plan approval and comply with any instructions. The village attorney said the house has been operating throughout the four-year lawsuit without any incidents. A separate suit brought by Bikur Cholim was also settled. (See prior related posting.)

Meanwhile, in Phoenix, Arizona, CrossRoads United Methodist Church has settled its RLUIPA suit against the city challenging a zoning decision. Yesterday's Arizona Republic reports that under the agreement, the church will move the location of its Saturday pancake breakfast service within six months. In the meantime, the service will be moved from outside to inside the church. The city's Board of Adjustment had agreed with neighbors that the church was operating a charity dining hall in violation of residential zoning restrictions by holding its weekly service that offered an egg, pancake and bacon breakfast along with song and prayer.

Thursday, June 17, 2010

Lawsuit Charges Anti-Muslim Discrimination In Naturalization Approvals

The ACLU of Southern California yesterday announced that it has filed a lawsuit against the Citizenship and Immigration Service alleging that the naturalization application of a 50-year old Egyptian Muslim man was wrongfully denied. It claims that USCIS's action in the case of Tarek Hamdi is part of a broader pattern of discrimination against Muslims who are seeking citizenship. The complaint (full text) in Hamdi v. United States Citizenship and Immigration Service, (SD CA, filed 6/16/2010), alleges that USCIS determined that Hamdi was ineligible for naturalization because of false statements on his application and during interviews. At issue is Hamdi's failure to disclose, in response to a question on the naturalization application, an "association" with Benevolence International Foundation, an Islamic charity which the Treasury Department has designated as financing terrorism. Hamdi made a single donation to the charity in 2000, and says that he did not regard this as "associating" him with the group. The lawsuit claims that applying the question on associations to charitable organizations to which an individual has made a donation is unconstitutional because it is void for vagueness. The Riverside (CA) Press-Enterprise reports on the case.

In Israel, Demonstrators Back Dissident Haredi Parents Defying High Court

On Tuesday, according to the Jerusalem Post, Israel's High Court ruled that a group of parents of the Slonim Hasidic sect will be imprisoned for two weeks for contempt if they do not obey the court's previous order (background) to send their girls back to a school where they study together Sephardi students. However the parents remain adamant. Beit Ya'acov school in Emmanuel removed a physical separation that had been built for some 70 students pursuing the Hasidic track of studies after the High Court ruled that it amounted to illegal discrimination. The parents have refused to return their girls to the school unless all the students' parents agree to a very stringent code of conduct and dress. Their attempts to send the girls to school outside of Emmanuel have been rejected by the Education Ministry. A member of the parents' committee said: "This is a battle over the Jewish religion, and the guardians of the religion, who have won all their past battles, will be victorious here, too."

Today, according to the Jerusalem Post, tens of thousands of haredi (strictly Orthodox Jews) demonstrated in Bnei Brak and Jerusalem in support of the Hasidic parents. Prison officials say that special arrangements have been made at both men's and women's prisons to allow the parents to maintain their strictly Orthodox life style while in jail.

European Court Says Poland Forced Student To Indirectly Reveal Religious Beliefs

In Grzelak v. Poland, (ECHR, June 15, 2010), the European Court of Human Rights by a vote of 6-1 held that a Polish school violated the European Convention on Human Rights when it failed to offer an ethics class for a student who opted out of the school's religious education class. The Court held that the absence of a grade for Religion/Ethics on the student's school certificates would be understood by any reasonable person as an indication that the student did not take widely available religious education classes, and would lead to the conclusion that he was likely a person without religious beliefs. By indirectly requiring the student to reveal his religious beliefs, the school violated Article 14 (prohibition on religious discrimination) taken in conjunction with Article 9 (freedom of thought, conscience and religion) of the Convention. In the case, the student argued that because most state schools in Poland do not provide separate ethics courses, non-Catholic parents often end up sending their children to religious instruction classes with which they disagree. Baltic Review reports on the decision.

Trial Judge Hears Closing Arguments In Challenge To California's Prop 8

Yesterday in federal district court in San Francisco, Judge Vaugh Walker heard closing arguments in Perry v. Schwarzenegger, the federal constitutional challenge to California's Proposition 8 that bans same-sex marriage. The Washington Post and the San Francisco Chronicle report on the arguments in which Charles J. Cooper, arguing on behalf of supporters of Proposition 8, focused on the procreative role of marriage. In the two and one-half week trial, Cooper called only two witnesses, political scientist Kenneth Miller who said that gays and lesbians were not in need of special protection to vindicate their political rights, and author David Blankenhorn who testified that same-sex marriage could impact the number of marriages between men and women. David Boies and Theodore Olson, attorneys for the challengers, presented most of the witnesses in the 12-day trial in January-- same-sex couples and eight academics. In his closing argument, Olson contended that Proposition 8 involved discrimination on the basis of gender and focused on the 1967 Supreme Court decision in Loving v. Virginia which struck down state bans on interracial marriages. (See prior related posting.)

UPDATE: Here are the full transcripts of the closing arguments via the Sacramento News & Review.

CAIR Says U.S. Muslims Stranded Abroad After Being Placed on No-Fly List

On Tuesday, the Council on American-Islamic Relations wrote Attorney General Eric Holder (full text of letter) complaining about cases of U.S. citizens who, while traveling abroad, have been placed on the U.S. no-fly list and have been delayed or prevented from returning home. The New York Times Tuesday ran an article about a 26-year old American Muslim from Virginia who has now been stranded in Cairo, Egypt for six weeks. He was placed on the no-fly list and questioned by FBI agents as he was trying to return to the U.S. from an 18-month stay in Yemen. CAIR says that in one case, a man questioned by the FBI in Cairo was pressured to spy on the American Muslim community when and if he is allowed to return to the U.S. Yesterday, CAIR issued a press release and held a news conference on the issue.

Wednesday, June 16, 2010

President Announces Religious Freedom Appointees

President Obama yesterday announced his intent to appoint Suzan Johnson Cook to the vacant position of Ambassador-At-Large for International Religious Freedom. Dr. Cook is the Founder and President of Wisdom Worldwide Center, and has also served as the Senior Pastor of Bronx Christian Fellowship Baptist Church in New York City since 1996. Religious freedom advocates have been pressing for Obama to fill this position. (See prior posting.)

At the same time, the President announced two appointments to the U.S. Commission on International Religious Freedom. One is Felice D. Gaer who has seved a number of terms on USCIRF. Gaer directs the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee. The second appointee, new to USCIRF, is Dr. William J. Shaw, Immediate Past President of the National Baptist Convention, USA. Inc. and Pastor of White Rock Baptist Church in Philadelphia. Under the International Religious Freedom Act, Sec. 201, three Commissioners are selected by the President, three by the Senate and three by the House.

Norwegian Judges Can Wear Religious Clothing

Norway's National Court Administration ruled yesterday that judges and other court officials can wear religious dress during court sessions. This includes the Muslim hijab (headscarf) and the national costume of the indigenous Sami people. Europe News reports that the ruling departs from an initial proposal that would have banned all religious clothing. Under yesterday's ruling, if a party to the case objects to the clothing, the court official can be recused.