Dispute Over Control Of CA Mosque Moves To Court

A feud between two factions over control of a mosque in Lodi,California has now made its way to the courtroom in Stockton, California, according to a report in Friday's Lodi News-Sentinel. The judge continued the case until August 12. The major legal issue, according to an earlier report by the News-Sentinel seems to be whether Mosque President Mohammad Shoaib resigned his position, or merely threatened to do so. That in turn is unclear because the alleged resignation letter was written in Urdu, the language spoken in Shoaib's native Pakistan. (July 13 Tracy Press story.) If Shoaib had resigned, then his firing of the mosque's imam, Shabbir Ahmed, would not be valid. Shoaib claims he fired the imam two days after the clergyman told an immigration judge in San Francisco that he had once made speeches in Pakistan supporting the Taliban’s efforts against the United States. Shoaib also removed four of the mosque's board members.

Plaintiffs challenging Shoaib's actions are represented by high profile attorney Brian Chavez-Ochoa who says that the suit is necessary to keep the mosque in compliance with state corporation law and its own bylaws. "This is just about the corporation," Chavez-Ochoa said. "If we don't seize control, the state of California could suspend the status of the (mosque) corporation." The mosque has also been the subject of national attention because two of its members were arrested in June in an FBI terrorism investigation. (Detroit News report.)

The 10 Commandments Rulings As They Are Implemented On The Ground

As we have learned many times over the decades, even when the Supreme Court rules on a matter, it is not clear that "in the trenches" there is compliance. And so it seems with this story today from WKYT in Lexington, Kentucky:

"Crittenden County officials endorsed a Baptist preacher's plans to put a Ten Commandments monument on the courthouse grounds in western Kentucky. The Rev. Tony Alexander, pastor of Glendale General Baptist Church, intends to raise money to donate the monument. 'Christian people need to take a stand,' he said. The $1,200, six-foot granite tablet inscribed with the commandments will be placed on the lawn near another monument at the courthouse 45 miles northeast of Paducah. The county Fiscal Court approved Alexander's plans Tuesday. 'These are the laws God handed down,' Alexander said. 'If we can't abide by them, the local laws aren't worth much.'"

And then, in what might be seen as the understatement of the year: "Judge-Executive Fred Brown said the monument will probably be placed near several historical displays, and since the commandments would also be considered a historical marker, Brown said he hopes no one will object to them. 'But if they do, they do,' he said. 'We don't have any control over that. ... I would hope that no one would object, but you never know with this kind of thing.'"

Meanwhile, in a protest that raises no constitutional problems, funeral homes and a tire store in Bullit County, just south of Louisville, are handing out Ten Commandments yard signs for people to put up in front of their homes or businesses.

Should Test Oath Clause Limit Scope of Roberts Questioning?

Judge John Roberts' position on abortion rights promises to be a major focus in the upcoming Supreme Court confirmation hearings in the Senate. As the media speculates about the impact of his Roman Catholic faith on his views about Roe v. Wade, over on the Religionlaw listserv there is an interesting discussion on whether there are Constitutional objections to asking him about his religious beliefs. Do the provisions of Art. VI, Clause 3: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States", limit the Senate's right to question him about the impact of his religious beliefs? Here is the beginning of the discussion thread.

Canada Enacts Law Permitting Gay Marriage, Protecting Religious Objections

Canada on Wednesday became the fourth country to officially recognize gay marriage as the Senate passed Bill C-38 (Washington Blade ) and the act received royal assent (RedNova News).

The new statute contains two provisions specifically protecting the religious freedom of those who object to gay unions: "officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs" and "no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom."

The full text and legislative history of the Act is available online.

Another Link To Religion Clause Brief of Roberts

In a posting on Tuesday, I called attention to an article that reviewed and linked to the religion clause briefs that SCOTUS nominee John G. Roberts co-authored when he was at the Department of Justice. Oglethorpe University Prof. Joseph Knippenberg points out to me that the article only links to Roberts' brief on the petition for cert. in Lee v. Weisman, and he furnishes this link to Roberts' merits brief in the case: http://www.usdoj.gov/osg/briefs/1990/sg900105.txt

Christian Dalits Seek Same Benefits In India As Dalits of Other Faiths

Bellevision Global carries a long report today on the struggle in India of Dalits (formerly known as "untouchables") who are now Christians to obtain many of the special rights granted by law to Dalits of Hindu, Sikh and Buddhist faiths. A Public Hearing on their plight was held the day before the Supreme Court of India will hear an appeal by the Public Litigation Centre on the Constitutional validity of existing legislation that grants those rights on the basis of religious faith. The so-called "People's Tribunal" headed by former Indian Supreme Court Justice SB Sawant concluded: "It is necessary that the Christian Dalits are given the same benefits aids and advantages, facilities and opportunities as are given to Dalits of Hindus, Sikhs and Neo Buddhists on the basis of caste to which they belong before conversion and which they are carrying even today."

Proposal Will Repeal Victoria's Ban On Witchcraft

In the Australian state of Victoria, the attorney general has introduced legislation to repeal the Vagrancy Act which, among other things, bans witchcraft and fortune-telling. In a report today in The Age, Gavin Andrew, Victorian coordinator for the Pagan Awareness Network, is quoted as saying that the repeal will make it clear that Victoria's Racial and Religious Tolerance Act applies to pagans and witches. Some of the other provisions in the Vagrancy Act will be the subject of new legislation, according to a report in Stuff.

1st Amendment Claim In PBS Radio Station Sale

There is quite a battle going on in Orange County, California over the decision by the cash-strapped Coast Community College District to sell off its Public Television Station, KOCE. It rejected a $40 million cash bid in favor of a much lower one from the KOCE Foundation that would keep the station as part of the PBS system. Last month in Word of God Fellowship, Inc. v. Coast Community College District, 2005 Cal. App. Unpub. LEXIS 5454 (CA Ct. App., June 23, 2005) an appellate court invalidated the sale, holding that the reason for the acceptance of the lower bid was that the high bid came from a group of televagelists. In reversing the trial court, the court of appeals said: "In essence, this means a new sale -- or, if the district's trustees find that the prospect of televangelists eventually acquiring KOCE to be too distasteful, no sale at all. As we have shown they certainly have at least that discretion under the statute. But if they do sell, it must be a fair sale to the highest cash bidder, with no favoritism as regards bidding deadlines."

Today, the Los Angeles Times reports that the high bidder, Daystar Television Network, in another attempt to buy the station, will file suit in federal court for damages arguing that its free exercise of religion rights were violated when the college district refused to sell to it. The suit claims that the defendants' actions were "designed to interfere with the plaintiff's right to acquire KOCE-TV based solely on the fact that plaintiff is a religious organization" and that its "programming [is] designed to promote and disseminate Christian tenets, teachings, beliefs and values."

Daylight Savings Proposal Creates Religious Conflict For Jews

The Orthodox Jewish Institute for Public Affairs issued a release yesterday opposing the provision in the pending federal Energy Policy Act of 2005 that would extend Daylight Savings Time by two months. The time shift would be extended to run from early March to late November. The Orthodox Union is concerned that pushing sunrise back to 8:00 AM or later in some parts of the country will create religious problems for Orthodox Jews. The time for morning prayers (Shacharit service) is tied to sunrise time. In some places, this will make it impossible for individuals to say those prayers before their workday begins. Similar issues already arise in mid-winter months when sunrise is late.

MA Prisoner Free Exercise Claim Moves Ahead In Part

An opinion in a prisoner Free Exercise case decided by a state trial court in Massachusetts last month has just become available. Jackson v. Verdini, 2005 Mass. Super. LEXIS 279 (June 9, 2005) involved a challenge by two Muslim prisoners claiming that they were entitled to have Friday Jumuah services led by an Imam every week, instead of every second week as the prison was doing. One of the prisoners, a male, also claimed the right not to be patted down by female guards except in an emergency. The court held that the prisoners had exhausted their administrative remedies. It also held that the provision in 42 USC 1997e(e) precluding a damage action for mental or emotional injury without showing physical injury does not apply here, because a Free Exercise claim is a claim for violation of intangible rights. However the court dismissed the prisoners' claim for monetary damages under the Massachusetts Civil Rights Act (G.L.c. 12, §§ 11(H) & 11(I)), because defendant was protected by sovereign immunity.

More on Roberts and Religion Clauses

Nathan Diamant wrote a column for Beliefnet yesterday, giving his fairly upbeat interpretation of the scant evidence we have about Supreme Court nominee John G. Roberts' views on First Amendment religion issues. (See earlier related posting.) Commenting on the brief that Roberts wrote as Deputy Solicitor General in Lee v. Weisman, Diamant said: "the brief made a mainstream legal argument in support of the non-denominational prayer at issue in the case, which was offered at a junior high school graduation by a rabbi. The argument, essentially, was that such a prayer was in the tradition of many non-denominational invocations which take place at public ceremonies. This tradition, the brief argued, coupled with the fact that students were not required to attend the graduation ceremony, meant that the prayer did not constitute an 'establishment of religion' as barred by the First Amendment. Four of the nine justices agreed with this view, and its underlying arguments have been incorporated into the jurisprudence in subsequent cases--hardly a radical position."

Another Chapter In Battle Over LA School Prayer

The Associated Press reported today on another chapter in the long-running litigation over prayer in various school functions in the Tangipahoa Parish, Louisiana schools. (See prior posting.) According to the story, federal district court Judge Ginger Berrigan found that the teacher did not violate an outstanding consent decree when she held a before-school Bible club, encouraged students to bring their Bibles to school and led students in a silent prayer following the Pledge of Allegiance. The existing order only prohibits prayer at "school sponsored events" such as athletic events, prayers over the public announcement system and during school assemblies. The ACLU says it is now considering a separate suit over the activities of fourth-grade teacher Pamela Sullivan.

In Bahrain, Women-Only Colleges Approved At Request of Islamists

The Arab Times reported yesterday that Bahrain's parliament has approved a draft law to set up women-only colleges as part of the country's university system. This was in response to Islamist demands for separation of the sexes in colleges.

Iraq Constitution Draft Gives Shariah Greater Role

A working draft of the new constitution being put together for Iraq reveals a much greater role for Islamic law than the Interim Constitution, according to a report today in the New York Times. The new constitution guarantees equal rights for women as long as those rights do not "violate Shariah," or Koranic law. It would also require court cases dealing with marriage, divorce and inheritance to be judged according to the law practiced by the family's sect or religion. This would repeal a liberal personal status law enacted in Iraq in 1959. The new provision would mean that Shiite women, regardless of age, would need permission of their families to marry, and might be subject to divorce at the will or their husbands.

However the fate of the new constitution is in some doubt as two Sunni members of the drafting committee were assassinated Tuesday afternoon, according to the New York Times.

A Wealth of New Scholarship

From SmartCILP this week, a wealth of new scholarship:

Enrique Armijo, Belief Behind Bars: Religious Freedom in Prison, RLUIPA, and the Establishment Clause, 31 New England Jour. on Criminal & Civil Confinement 297-330 (2005).

Kristen A. Carpenter, Considering Individual Religious Freedoms Under Tribal Constitutional Law, 14 Kansas Jour. of Law & Public Policy 561-606 (2005).

Angela Fernandez, Record-Keeping and Other Trouble Making: Thomas Lechford and Law Reform in Colonial Massachusetts, 23 Law & History Review 235-277 (2005).

__________

Roger Williams Law Review hosts a Symposium--Religious Liberty in America and Beyond: Celebrating the Legacy of Roger Williams on the 400th Anniversary of His Birth. Articles in it are:

Edward J. Eberle, Introduction, 10 Roger Wms. U. L. Rev. 279-287 (2005).

Edward J. Eberle, Roger Williams on Liberty of Conscience, 10 Roger Wms. U. L. Rev. 289-323 (2005).

Steven D. Smith, The Tenuous Case for Conscience, 10 Roger Wms. U. L. Rev. 325-358 (2005),

Kathleen A. Brady, Foundations for Freedom of Conscience: Stronger Than You Might Think, 10 Roger Wms. U. L. Rev. 359-384 (2005).

Michael J. Perry, A Right to Religious Freedom? The Universality of Human Rights, The Relativity of Culture, 10 Roger Wms. U. L. Rev. 385-425 (2005).

Richard S. Kay, Michael Perry's Right to Religious Freedom, 10 Roger Wms. U. L. Rev. 427-438 (2005).

Jonatas E.M.Machado, Freedom of Conscience and the Rights of Non-TOTFers, 10 Roger Wms. U. L. Rev. 439-449 (2005).

Jonatas E.M.Machado, Freedom of Religion: A View From Europe, 10 Roger Wms. U. L. Rev. 451-535 (2005).

Consent Decree In Another 10 Commandments Case

[CORRECTED] The Atlanta Journal Constitution reported yesterday on the consent decree (full text) issued by U.S. Georgia District Court Judge William C. O’Kelley ordering the removal of a poster-size depiction of the Ten commandments from the wall of the Barrow County, Georgia courthouse. The county is barred from posting similar displays on public property. However individual county employees are still permitted to display the 10 Commandments on their person or in their personal office. The suit had been filed by the ACLU of Georgia, which also recovered expenses and attorneys' fees of $150,000.

"Tea Leaves" On Roberts On Church-State

Beliefnet tonight ran an article titled Clues on Roberts Church-State Views. The story quotes lengthy excerpts from two amicus briefs to the Supreme Court co-authored by US Supreme Court nominee Judge John G. Roberts while he was Deputy Solicitor General. One was in the high-school graduation prayer case of Lee v. Weisman. The other was in Westside Community Bd. of Educ. v. Mergens, the case raising the constitutionality of permitting religious groups to meet on school premises after school, as called for by the Equal Access Act.

It's Roberts for SCOTUS-- Here Is Link To Hearings on Him in 2003

By now, the news media have made clear that President Bush's nominee to the US Supreme Court will be DC Circuit Judge John G. Roberts, Jr. Here is a link to the April 30, 2003 Senate Judiciary Committee hearings when he was being considered for the Circuit Court.

Scopes Trial Photos Discovered

Sixty unpublished photos from the Scopes Monkey Trial 80 years ago, like this one of William Jennings Bryan being interrogated by Clarence Darrow, have been discovered in the archives of the Smithsonian Institution. They were taken by Watson Davis, managing editor of Science Service, who covered the trial, according to an AP report carried in today's Washington Post. The Smithsonian has placed a dozen of the photos on its website.

Developments In New Challenge to "Under God" In Pledge

After Michael Newdow lost his U.S. Supreme Court challenge last year to the inclusion of "under God" in the Pledge of Allegiance, he filed another suit that avoided the standing problem that led to the demise of his first attempt. The new suit is brought on behalf of eight plaintiffs who are either children or custodial parents. Yesterday, there were two developments in the new case in federal district court in Sacramento, California.

First, the San Diego Union Tribune reported that Judge Lawrence Karlton ruled that plaintiffs could not challenge the Pledge itself, and could move forward only to challenge the recitation of the Pledge in public schools. Second, Judge Karlton permitted the Knights of Columbus and seven families who are KofC members to intervene in the case. The Knights of Columbus' Press Release said that they "had a central role in adding 'under God' to the Pledge 51 years ago, and are determined to do everything possible to defend it in this court challenge."

German Official Suggests Keeping Mosques Under Electronic Surveillance

According to Islam Online yesterday, German Interior Minister Otto Schily has said that the German government is considering placing all mosques under observation through installing closed-circuit television cameras. Condemning "hate-inciting imams", Schily followed the lead of Bavarian Interior Minister Guenther Beckstein who earlier has suggested planting spies and cameras inside mosques and censoring sermons. However many other officials condemned the idea of monitoring places of worship. There are approximately 3.4 million Muslims in Germany.

Florida's Former Secy. State Urged Kabbalah Water For State Ag. Dept.

The Forward last Friday called attention to a report published earlier this month in the Orlando Sentinel regarding former Florida Secretary of State Katherine Harris. Harris, who gained notoriety during the 2000 Presidential election, is now a member of the US House of Representatives from the 13th District of Florida. In 2001, while Harris was still Florida's Secretary of State, apparently she attempted to get Florida's Department of Agriculture to test Kabbalah Water as a potential treatment for Citrus Canker then spreading through Florida orange groves. The Orlando Sentinel found that at Harris' urging, state researchers worked with a rabbi and a cardiologist to test "Celestial Drops". Harris learned about the water from Rabbi Abe Hardoon, who now heads the West Boca Kabbalah Learning Center. Harris denied knowing that Celestial Drops was connected with the Kabbalah Center. She said she recommended it after learning that it had been developed by "Israeli scientists".

Line Drawing In New 10 Commandments Displays

The confusion created by Supreme Court's line drawing in its recent Ten Commandments decisions is indicated by a report in this morning's Casper, Wyoming Star-Tribune. Casper had one of the Fraternal Order of Eagles monuments in its City Park. In 2003, it removed the monument under threat of a lawsuit. Now the city is building a new downtown plaza. It plans to take the Ten Commandments monument out of storage and place it there, along with monuments to other documents that played an important part in the development of American law. Casper's city attorney, Bill Luben, has ruled that this is permissible under Van Orden v. Perry because the display will emphasize the Ten Commandments' historic value, not their religious value.

MA Referendum Challenging Stem Cell Research Stymied Because of CO Provision In Law

In a ruling filled with some irony, Massachusetts Attorney General Tom Reilly has rejected a referendum petition that sought to get voters to overturn Massachusetts' new law that encourages stem cell research (MGL Chap. 111L- full text.). The ruling is reported in a story by the Associated Press and carried by Dateline Alabama. The Massachusetts Constitution provides: "no law that relates to religion, religious practices or religious institutions ... shall be the subject of a referendum petition." The AG ruled that the stem cell law is not subject to referendum because the law (Secs. 5(e) and 7(a)) contains conscientious objection provisions, protecting doctors, nurses and other medical employees from being required to do stem cell research that conflicts with their "sincerely held religious practices or beliefs". Larry Cirignano, the Catholic activist who began the referendum drive (see June 16 Boston Globe), plans to appeal the attorney general's ruling.

Bald Eagle Protections Challenged By Non-Indian Religious Adherents

The Federal Bald and Golden Eagle Protection Act prohibits even the possession of Eagle feathers or parts. However, there is an exception for Native Americans who use eagle feathers, heads and talons in religious ceremonies. The National Eagle Repository, a federal agency, collects dead eagles from zoos, game wardens and highway departments, and, under a permit system (50 CFR 22.22), distributes them to those holding a Certificate of Indian Birth for religious uses.

The Los Angeles Times today reports that this carefully constructed system is breaking down. Thousands of non-Indians have embraced Native American beliefs and ceremonies. Four of them are suing in federal court in Utah claiming that the permit system that excludes them violates their constitutional right to free exercise of religion. Also demand among Native Americans is increasing as tribes attempt to revive traditional practices. Finally private collectors, particularly in Europe, are willing to pay large sums for regalia with eagle feathers. All this means that black-market prices for eagle feathers are soaring, and the government fears an increased illegal killing of eagles will occur.

Pakistan Province Passes Law Creating Office to Enforce Islamic Observance

In Pakistan, the Provincial Assembly of the North West Frontier Province, a province on the Afghan border, has enacted a controversial new law known as the Hasba Act. Italy's Asia News reported last week that the act creates the office of the muhtasib, a religious ombudsman whose function is to assure that people strictly follow Islamic rules, such as Friday prayers, separation of single men and women, and limitations on singing and dancing. The bill now goes to the governor of the Province for his signature. The Times of India quotes the governor, Khalilur Rehman, as saying that he will take every constitutional step to prevent "Talibanization" of the region.

Last Friday, Pakistan's attorney general, on behalf of the president, referred the provincial bill to Pakistan's Supreme Court for an advisory opinion on whether the bill violates Pakistan's constitution. According to a report on this by Dawn, a 5-member Supreme Court panel will hold a hearing on the bill on July 25.

Meanwhile, the Pakistan Daily Times today reports that Akram Khan Durrani, Chief Minister of the Northwest Frontier Province, has been in the United States attempting to explain the human rights aspects of the Hasba Act to US officials and to a "think tank". Durrani said, "I hope the US government will not oppose the Hasba Bill". He added that his meeting with the US think-tank had been successful.

Reporters' Testimony Sought In Intelligent Design Challenge

In Pennsylvania, a federal lawsuit brought on behalf of 8 families by the ACLU is pending challenging the policy of the Dover Area School District that requires reading ninth-graders a statement about intelligent design before teaching about evolution. (See prior postings 1 and 2) The Christian Post reports today on last Thursday's pre-trial hearing. At issue in the case is whether the school's district's policy was motivated by religion, or was purely educational. Attorneys for the school district, the Thomas More Law Center, have asked the judge to permit them to call as witnesses two reporters whose stories quoted school board members as making religious statements. They claim that reporters reporters, Heidi Bernhard-Bubb and Joe Maldonado, misrepresented what the board members said. U.S. District Judge John E. Jones III will review the reporters' notes to decide whether they should testify.

MS Adoption Agency Takes State Funds, Turns Away Catholics

A Christian adoption agency in Jackson, Mississippi, that receives funds from the state's Choose Life license plate sales refuses to place children with Roman Catholic families. An AP story reported by the South Florida Sun-Sentinel on Friday quotes Bethany Christian Services as saying that Catholicism does not agree with Bethany's Statement of Faith. 24 adoption and pregnancy counseling centers in Mississippi receive funds from the extra fee charged when the state sells Choose Life plates. The state raised $244,000 from the sales in 2004. Bethany received $7053 of that.

California Missions In Financial Trouble

Today's Monterey Herald reports that with a lawsuit pending (see prior posting) challenging federal aid for renovating California's 21 historic missions, the California Missions Foundation is in deep financial trouble. It appears that Congress will not appropriate any funds for them in this year's budget, despite its previous enactment of the California Missions Act. State funding has also dried up after the California Cultural and Historic Endowment Board ruled that the prohibition on using state funds for religious purposes precludes them from funding the missions. 19 of the missions are owned by the Catholic Church and still used for religious services. Even if the California Missions Act is upheld, it calls for the missions to raise matching funds, and they have had difficulty doing this. Mission San Miguel near San Luis Obispo has been completely closed because of earthquake damage since December 2003.

No Enforcement Planned Against Groups For Polygamy In Utah

With the highly publicized crackdown in recent months on the FLDS (see latest prior posting), the Salt Lake Tribune reports today that other religious groups in Utah that practice polygamy are wary. But apparently the Utah attorney general's office has assured groups that do not practice underage marriage that they will not be prosecuted. The Apostolic United Brethren, based in Salt Lake City, and Arizona's Centennial Park group recommend to their followers that girls be at least 18 before they marry. More problematic is the Kingston group which accepts relationships between half-siblings and first cousins.

Commentary: The First Amendment and Changing Views of Islam After London

Ever since 9-11 there has been a nagging question which both pundits and politicians have largely avoided: will the invocation of Islam as justification by terrorists cause Americans in opposing terror to change the normative Free Exercise doctrines deeply embedded in US constitutional jurisprudence? It is sensitive topic even to raise.

Immediately after 9-11, the White House gave a clear endorsement to traditional First Amendment values. It characterized the 9-11 terrorists as individuals who do not represent Islam; the terrorists have misinterpreted the religion's true teachings. So the First Amendment issues could, for the most part, be avoided. In his speech to a joint session of Congress on Sept. 20, 2001, President Bush set the tone: “The terrorists practice a fringe form of Islamic extremism that has been rejected by Muslim scholars and the vast majority of Muslim clerics -- a fringe movement that perverts the peaceful teachings of Islam.” This has remained the dominant U.S. government approach. As recently as last week, a State Department official addressing a conference on Human Rights and the Fight Against Terrorism said that “many terrorists have chosen to hide behind a distorted version of their faiths”.

However with the July 7 bombings in London, I detect a change in unofficial attitudes—a suggestion that terrorism may be more normative in parts of Islam than we have been willing to admit. Thomas Friedman’s July 15 New York Times column hinted at this: “Of course, not all Muslims are suicide bombers; it would be ludicrous to suggest that. But virtually all suicide bombers, of late, have been Sunni Muslims. There are a lot of angry people in the world…. But the only ones who seem to feel entitled and motivated to kill themselves and totally innocent people, including other Muslims, over their anger are young Sunni radicals. What is going on? Neither we nor the Muslim world can run away from this question any longer.”

On Saturday, the conservative columnist Robert Klein Engler left no doubt about his attitude. In an American Daily column titled Political Factions and a Modest Proposal for Dealing With Islam, he wrote: “The average American knows the so-called war on terror is not really a war on terror. He knows in his gut that what's happening is that we are fighting another war with Islam. That's what it is, no matter what the politicians say. This war against Islam is the flaring up again of a conflict that has been going on for 1,500 years…. "

Engler continued: "It is a fault of liberalism that it sees Islam as just one faction among many in Western societies…. It is the theological ideas inherent in Islamic law that make Islam the greatest challenge that constitutional democracies face. As soon as these democracies grant Islam the status of a faction, Muslims begins to campaign for the overthrow of the very constitutional structures that make them a viable faction…. The conclusion to draw from this is that either Islam stops being Islam, or it be excluded as a faction from democratic republics….”

Then came Engler's radical proposal. He wrote: “[L]et me make a modest proposal: instead of tolerating Islam, we should build a fence around it. This fence makes no judgment about the religion of Islam. Instead, it respects the uniqueness of Islam. A fence simply recognizes that two world views are incompatible…. A fence around Islam may include the removal of Muslims from Western societies, the outlawing of Islamic practices, cultural parity with Muslim states, new sources of oil and the postponement of economic and technical development in the Muslim world until the military and cultural threat of Islam is diminished.”

That's Engler's view. The difficult question is whether a view like that is also beginning to resonate with the political mainstream in America? Probably, "not yet". But when British Muslim leaders and scholars condemn the bombings in London, but at the same time go out of their way to justify terrorist bombings in Iraq and Israel, they do not help their case. If the mainstream view in the U.S. of normative Salafi Islam does begin to change, the attitudinal shift will have profound moral, political and legal implications for all Muslims and all Americans.

Abuse and Church Liability--In 2 Cases, Different Facts, But Neither Succeeds

Within the past few days, two state Supreme Courts have ruled in cases claiming church liability growing out of sexual abuse. In both, the church prevailed. But the two cases were factually rather different from each other.

Holly Berry v. Watchtower Bible and Tract Society of New York, decided by the New Hampshire Supreme Court on July 15, involved a claim by two girls against church officials who failed to report to authorities that their father was sexually and physically abusing them after the girls' mother reported the abuse to church elders. The court held that the state’s child abuse reporting statute does not give rise to a private right of action. Plaintiffs also claimed that the congregation had a common law duty to protect them because of a fiduciary or special relationship, since Jehovahs Witnesses are taught not to report problems to secular authorities. But the majority found no facts present to establish a special relationship here. Nor were there special circumstances created by the elders that enhanced the risk of abuse.

A dissent argued that a duty was created based on special circumstances. It also rejected the claim that investigation into claims of negligent counseling would violate the Free Exercise or Establishment Clause of the First Amendment. The case was discussed in today's Concord Monitor.

John Doe 67C v. Archdiocese of Milwaukee, decided July 13 by the Supreme Court of Wisconsin, involved claims of negligence, fiduciary fraud and breach of fiduciary duty growing out of sexual abuse of plaintiff by a priest when he was a child. The Supreme Court upheld the dismissal of the claim because there had been no allegations that the Archdiocese knew or should have known that the priest was a child abuser during the relevant years.

A concurring opinion rejects Establishment Clause “excessive entanglement” objections to plaintiff’s claims, and finds that the “discovery rule” prevents the claims from being barred by the statute of limitations.

Sikhs Sue NY MTA Over Required Logo On Turbans

Five Sikhs employed by the New York Metropolitan Transit Authority filed a religious discrimination suit in US District Court in Brooklyn today, according to a report by Newsday. The five claim that they were ordered to wear MTA logos on their turbans, even though employees who wear other religious or secular headgear are not required to do so. Amardeep Singh, a lawyer for the men, said "It smacks of discrimination to create special rules for Sikhs and Muslims that don't apply to anyone else."

DC Cardinal Supports Catholic Belief In Theory of Evolution

Last week, Cardinal Christoph Schonborn created quite a stir by claiming that the Catholic Church supports Intelligent Design. (See prior posting.) Now it appears that Washington, DC Cardinal Theodore McCarrick disagrees. KATC News in Acadiana, Lousiana reported yesterday on a press conference held by Cardinal McCarrick at the National Press Club in Washington. McCarrick said that instead of "the beautiful story of Genesis," Catholics can believe in evolution -- as long as they understand evolution to have been guided by God rather than chance. He said: "as long as in every understanding of evolution, the hand of God is recognized as being present, we can accept that."

Cardinal McCarrick was quickly criticized by Ken Ham of Answers In Genesis, a group that supports a literal reading of the Creation Story. Agape Press yesterday quotes Ham as saying: "If you're going to believe in evolution, and say that God took an ape man and made a soul to make Adam, and God took an ape woman and made a soul to make Eve, then the woman came from an ape woman. She didn't come from Adam. And if the woman didn't come from Adam's side, then you've got a major problem." He continued: "The issue about believing in millions of years and evolution undermines biblical authority.... And that's the problem with much of the Church, and the problem you find in the Catholic Church, where the Bible is really not the ultimate authority. It's really the Church [that is considered] the ultimate authority."

Conservative Caucus Backs Roy Moore For SCOTUS

The Conservative Caucus, led by its chairman Howard Phillips, this week called for President Bush to nominate former Alabama Supreme Court Justice Roy Moore to the United States Supreme Court. The Washington Post yesterday reports on the news conference held by the group which is suggesting a Draft Roy Moore movement. Joined by former Republican Presidential and Senatorial hopeful Alan Keyes, Phillips described Moore as: "The great patriot, that exemplary jurist, God's man for these times."

New Website on Clergy Sexual Abuse Legal Developments

Tidings News reports that the Los Angeles law firm of Hennigan, Bennett and Dorman LLP has created a web site to provide comprehensive information and legal analysis on the clergy sexual abuse cases involving the Los Angeles diocese. The web site, at www.la-clergycases.com , contains news, background and updates on the pending cases, information on policy developments, and a library of legal and other documents.

Kazakhstan Law Restricting Religious Groups Takes Effect

Forum 18 reports today that in Kazakhstan, the President on July 8 signed a new law affecting the freedom of religious groups to operate in the country. (See prior related posting.) The new measures came into force upon the publication on July 13 and 14. The new law bans unregistered religious organizations and requires all missionaries to register annually with local authorities. Those taking part in public meetings of unregistered religious organizations, or those who finance them, are subject to fines. All literature and videos a missionary intends to use must be approved by officials. The head of the Association of Religious Organizations in Kazakhstan pointed out limited successes from lobbying while the laws were under consideration. The definition of who is a missionary was narrowed as was language prohibiting religious education injurious to children.

ACLU Has New Director For Its Religious Freedom Program

The American Civil Liberties Union announced yesterday that Dr. Jeremy Gunn has joined its national staff as Director of its new Program on Freedom of Religion and Belief. For the past five years, Dr. Gunn was at Emory Law School as a Senior Fellow for Religion and Human Rights.

EEOC District Offices Restructured

SHRM Online today reports: "After a long and often tense meeting, the Equal Employment Opportunity Commission (EEOC) voted 3-1 July 8 to approve controversial changes to the civil rights enforcement agency’s field structure that will cut the number of operations led by district directors and regional attorneys from 23 to 15 but will not involve closing offices or laying off employees." Eight of the current district offices will now become field offices. The Society for Human Resource Management praised the changes, saying they will reduce bureaucratic supervisory layers. The union representing EEOC employees, however, claims the changes will compromise civil rights enforcement. The EEOC enforces federal discrimination in employment laws, including those prohibiting discrimination on the basis of religion.

Israel's Knesset Discusses Changing National Anthem

The Constitution, Law and Justice Committee of Israel's Knesset is discussing the possibility of changing the lyrics to Israel's national anthem, Hatikvah, so that it will be meaningful to non-Jewish citizens of Israel as well, particularly Israeli Arabs. The current anthem speaks of the historical yearning of Jews to be a free nation in the land of Zion.

In a July 7 article, Haaretz reports: "The debates were held within the framework of meetings on formulating a 'widely approved constitution'. The main proposal debated was to change the lyric 'the soul of a Jew yearns' to 'the soul of an Israeli yearns'."

A July 10 Haaretz article remarks: "The real surprise is that the person who led the discussion on the subject of changing the anthem is the chair of the committee, Michael Eitan, one of the hard-core members of the nationalist camp in the Likud. Although Eitan emphasized that he is not proposing practical solutions, afterwards he couldn't restrain himself. He said, for example that 'if we add another line, so that even an Arab citizen will be able to say 'the Jewish soul', but will feel that his own soul is also included in the enterprise that belongs to all of us, we have to be proud of that if we succeed'.... Eitan pointed out that the public debate 'will be about the identity of the State of Israel and not about the difficulty of getting used to a new version...' "

Although adopted by the 18th Zionist Congress in 1933 as the national anthem of the Jewish people, Hatikvah was not formally made the national anthem of the state of Israel until November 2004 when the Knesset amended the Flag and Emblem Law of 1949. A July 12 Haaretz article traces much of this background.

Will Iraq's New Constitution Protect Minority Religions?

The Washington Times reports on yesterday's news conference at the National Press Club by representatives of minority religious groups in Iraq-- Chaldo/Assyrian Catholics, Iraqi Turkmen Muslims, and Mandaeans. They fear that the new Iraqi Constitution being drafted will not have meaningful protections for religious freedom. They are concerned that the Constitution will provide that Sharia will be the main source of Iraqi civil law, and that it will prohibit enactment of laws that are repugnant to Islam.

Also at the news conference was Nina Shea, a member of the U.S. Commission on International Religious Freedom (USCIRF). She indicated that a draft of the Constitution's religious freedom provisions may be available this week. In March, USCIRF published a report (press release) analyzing the constitutions of 44 predominantly Muslim countries. It examines their provisions on the role of Islam, freedom of religion, and equality for women. The full text of the report is available online in both English and Arabic.

Report on Increased Transparency for Non-Profits Given to Senate

Yesterday, the Acton Institute reported on the recommendations from the Panel on the Non-Profit Sector, an advisory group to the U.S. Senate. The Panel's report contains 120 suggestions for increased transparency and accountability in the non-profit sector. The recommendations would likely affect faith-based organizations. However many of its recommendations would not apply to religious congregations that are not required to file IRS Form 990. The report focuses on issues like compensation to directors and executives, benefits to related parties, non-cash donations, audit committees, board composition, disclosure of performance data, and conflicts of interest. The full text Panel's 112-page Report titled Strengthening Transparency, Governance, Accountability of Charitable Organizations was transmitted to the Senate Finance Committee on June 22.

British Muslims To Issue Fatwa Condemning London Bombers

Today's Scotland Daily Record reports that top Islamic scholars in Britain plan to issue a Fatwa condemning the four suicide bombers who carried out the attacks in London last week. The ruling will attack the religious basis of the terrorists' justifications for their action. According to the paper, "The religious ruling will outlaw the bombers among Muslims for breaking the basic rules of the religion."

UPDATE: On Friday, July 15, Muslim scholars in London condemned the July 7 bombings, saying they violated the Quran by killing innocent civilians. According to CNN, they said the bombers should not be considered martyrs. However, they refused to condemn all suicide bombings, saying that in countries like Israel and Iraq they are sometimes justified as a defense against occupiers. The statement also condemned racism, unemployment and economic deprivation that Muslim young people suffer in poor sections of London.

Tulsa Zoo Changes Its Mind On Creationism Display

The board of the Tulsa zoo has reversed itself and decided against installing an exhibit displaying the Biblical account of creation next to its display on evolution. (See prior posting). The Dallas Morning News reported last week that the Tulsa Park and Recreation Board has had second thoughts after a public outcry against the exhibit.

The paper reports: "Tulsa architect Dan Hicks, who proposed the creationism display, decried the zoo oversight board's reversal, saying it "stepped on the constitutional liberties of Tulsa taxpayers." He argued it is only fair to include Christian beliefs on origins, since the zoo already displays other religious symbols, including an elephant-like, Hindu statue. But board member Dale McNamara said she believes the statue fits the zoo's "living museum" mission of developing displays that explain the cultural significance of animals."

PA Courtroom 10 Commandments OK'd

The Harrisburg Pennsylvania Express-Times reports today that the nine county court judges in the Northampton County Pennsylvania Court of Common Pleas have ruled that Ten Commandments hanging above the witness stand in Courtroom One can stay. In an opinion by Presiding Judge Robert A. Freedberg, the court said that there is no evidence that the plaque was intended to convey a religious message, and there is no other evidence of the county attempting to promote religion. The plaque was presented to the court in 1954 by a Jewish community group to commemorate the 300th anniversary of the first Jewish settlement in America. The opinion quotes US Supreme Court Justice Steven Breyer's concurring opinion in the recent case of Van Orden v. Perry, that "passage of significant time without a challenge to the plaque's placement demonstrates that it has not been perceived as an establishment of religion."

Blair Seeks Dialogue With British Muslims

In a speech today before the House of Commons, British Prime Minister Tony Blair pledged to open a dialogue with the country's Muslims after last Thursday's terrorist bombings in London. The Los Angeles Times reports on today's reactions by Blair and others. In his address, Blair said of the bombings:

"This is not an isolated criminal act we are dealing with. It is an extreme and evil ideology whose roots lie in a perverted and poisonous misinterpretation of the religion of Islam. ... We will seek to debate the right way forward in combating this evil within the Muslim community with Muslim leaders and it is our intention to begin this process immediately. In the end this can only be taken on and defeated by the community itself, but we all can help and facilitate."

And More New Scholarship....

This week's SmartCILP turns up yet more great articles on church-state and free exercise issues:

Monica K. Miller & Brian H. Bornstein. Religious Appeals In Closing Arguments: Impermissible Input or Benign Banter?, 29 Law & Psychol. Rev. 29-61 (2005).

Andrew C Nichols, Exemptions for "Religious Corporations" From Employment Discrimination Statutes: Should Non-Profit Status Be Required?, 3 Georgetown Jour. L. & Pub. Pol'y 133-149 (2005).

_______________

Creighton Law Review has published a Centennial Symposium on Reconciling the Free Exercise and Establishment Clauses. It includes the following articles:

Steven K. Green, Federalism and the Establishment Clause: A Reassessment, 38 Creighton L. Rev. 761-797 (2005).

Steven D. Smith, The Iceberg of Religious Freedom: Sub-Surface Levels of Nonestablishment Discourse, 38 Creighton L. Rev. 799-814 (2005)

Richard Collin Mangrum, Shall We Sing? Shall We Sing Religious Music in Public Schools?, 38 Creighton L. Rev. 815-870 (2005 )

________________

Oxford University Press has published Edwin S. Gaustad's biography of Roger Williams. It is part of Oxford's "Lives and Legacies" series.

Canada Signs Cybercrime Protocol On Racist Acts

Canada last week became the first country outside of Europe to sign the Additional Protocol to the Convention on Cybercrime Concerning the Criminalisation of Acts of a Racist and Xenophobic Nature Committed Through Computer Systems (full text). According to a report yesterday from OUT-LAW News, the Cybercrime Convention itself entered into force in July 2004. The Additional Protocol has not yet entered into force. While 28 countries in addition to Canada have signed the Protocol, it has been formally ratified so far only by four. It takes five ratifications for it to enter into effect.

The Additional Protocol does not cover all religious incitement online. Its definition of "racist and xenophopic material" is "any written material, any image or any other representation of ideas or theories, which advocates, promotes or incites hatred, discrimination or violence, against any individual or group of individuals, based on race, colour, descent or national or ethnic origin, as well as religion if used as a pretext for any of these factors."

The Protocol requires signatories to outlaw public dissemination of this type of material through computer systems, such as through a website. The Protocol also covers racist and xenophopic motivated threats, even if sent to an individual by e-mail and not disseminated publicly.

More New Articles of Interest

Two recent articles of interest are discussed in postings at Mirror of Justice Blog:

Emory Law School Prof. John Witte, Jr. , One Public Religion, Many Private Religions: John Adams and the 1780 Massachusetts Constitution, which appears in THE FOUNDERS ON GOD AND GOVERNMENT, Daniel L. Dreisbach, Mark D. Hall, and Jeffry R. Morrison, eds., pp. 23-52, Lanham, MD: Rowman & Littlefield, 2004. [Mirror of Justice post]

Regent University Law School Prof. Michael V. Hernandez, A Flawed Foundation: Christianity's Loss of Preeminent Influence on American Law [LEXIS link], 56 Rutgers Law Review 625 (2004). [Mirror of Justice post]

Evangelicals Numbers Increasing In Military Chaplaincy

The New York Times this morning carries a very interesting front-page article on the growing number of evangelicals in the Chaplain Corps of the armed forces. Focusing particularly on the Air Force, it points out that this increase is accompanied by decreases in Catholic and mainline Protestant chaplains. The article explores at length the tension between evangelicals' obligation to share the Gospels, and military chaplains' duty to serve personnel of all faiths. The full article is worth a read.

Christian Theme Park Given Property Tax Exemption

A state circuit court in Orlando, Florida has decided that the Christian theme park, Holy Land Experience, is entitled to a property tax exemption as a nonprofit organization, according to a report in Monday's USA Today. The park is operated by Zion's Hope, an organization devoted to converting Jews to Christianity. Previously, the Orange County Property Appraiser's Office had exempted only the park's administrative building and educational facilities. But Judge Cynthia McKinnon, in a July 5 ruling, held that the entire park is tax exempt: "The undisputed evidence before the court is that (Zion's Hope) is using the property to spread what it considers to be God's word to many people at one time."

In a press release yesterday, Liberty Counsel which represented the theme park explained the decision, saying: "The government treads on thin ice when it bifurcates a ministry into what it considers secular and religious activities.... Every aspect of The Holy Land Experience is part and parcel of the religious ministry. The government may not make doctrinal decisions by determining some aspects are central to the religious ministry and some are not. The First Amendment prohibits governmental gerrymandering."

NC Quran In Court Dispute Being Referred To Legislature

In a posting last month, I focused on the dispute in North Carolina courts over whether witnesses may be sworn using a copy of the Quran instead of the Bible. Two judges in Guilford County had said "no". The issue was supposed to have been decided by a state Judicial Conference, or by the Administrative Office of the Courts. But now the Charlotte Observer reports that apparently the issue is being referred to the state legislature instead. Current state law calls for the oath to be taken on the "Holy Scriptures". The Guilford County judges say that this means the Christian Bible.

The language of the North Carolina General Statutes, Chap. 11, Art. 1 on the administration of oaths is interesting. Apparently the section at issue is Sec. 11-1, which reads: "Judges ... shall (except in the cases in this Chapter excepted) require the party to be sworn to lay his hand upon the Holy Scriptures, in token of his engagement to speak the truth and in further token that, if he should swerve from the truth, he may be justly deprived of all the blessings of that holy book and made liable to that vengeance which he has imprecated on his own head."

Prisoner's "Religious Name" Recognized Only Prospectively

In United States v. Baker, yesterday the 11 Circuit Court of Appeals held that a prisoner who has changed his name to adopt a "religious name" may have that name added, prospectively, to the name under which he was committed to prison. However, he has no Free Exercise right to have his commitment order, issued in 1993, changed to reflect his later legal name change.

UK Racial and Religious Hatred Bill Clears Commons

Yesterday, Great Britain's controversial Racial and Religious Hatred Bill moved one step closer to passage. (See prior postings 1, 2). BBC News reported that the House of Commons gave the proposal a vote of 301 to 229 on its third reading, but not before assuring that citizen's arrests for violation of the law would not be permitted. As the Telegraph reported today, many had feared that otherwise people taking offense at comments made at a public meeting could just arrest the speaker. Representatives of many churches, as well as both Conservative and Liberal Democratic politicians oppose the bill that prohibits incitement to religious hatred. They argue it will infringe free speech by prohibiting legitimate discussion of religious beliefs. They also argue that by not defining religion, the law could be used to protect Satanists and other marginal groups. The bill will now move to the House of Lords where its prospects for passage are far more doubtful.

Christian Group Call For Anti-ACLU Court Appointee

Despite President Bush's request that conservative groups moderate their rhetoric on Supreme Court nominees, it is clear that some religious groups are not heeding his plea. Today a press release was issued by Christians Reviving America's Values calling on the President to appoint a conservative Justice "to counter Bill Clinton's appointment of former ACLU General Counsel Ruth Bader Ginsburg." It also called for Congressional hearings "to expose the ACLU's use of taxpayer money to fund its extremist agenda, and pass legislation to stop this practice," pointing to awards of attorney fees to the ACLU in suits in which it prevailed against city or state governments. The release also said: "President Bush has been elected twice -- with the deciding votes by all accounts being cast by conservative Christians. It is imperative that he appoint a counterbalance to the pro-ACLU Ruth Bader Ginsburg."

Israel’s High Court Holds Another Hearing on IDF Exemptions for Yeshiva Students

Both the Jerusalem Post and the Haaretz yesterday reported on proceedings before Israel's High Court of Justice in the ongoing suit challenging Israel's 3-year old Tal Law. The Law (background article) provides for postponement of military service for ultra-Orthodox yeshiva students. Its enactment was impelled by a 1998 High Court decision that struck down a long-standing arrangement exempting yeshiva students from the draft.

The Tal Law was supposed to encourage Orthodox students to enlist by giving them the option to take a "decision year", during which they can leave their yeshiva and decide whether to enter the IDF for a short period of time, followed by reserve duty; enlist in alternative national service; or return to their studies. For the past three years, the Court has been considering a petition filed by the Movement for the Quality of Government in Israel seeking to declare the law unconstitutional. The group would like to see Orthodox students subject to the draft in the same manner that all others are. The government says that more time is needed to see if the law achieves its goal.

Everyone concedes that the decision year option, so far, has been a failure. Yeshivas do not publicize it, students do not know about it, and an alternative civil national service program has still not been created. In 3 years, only 31 students have been inducted into the military. Another 178 are in the process of being drafted and 48 are waiting to be assigned to the alternative civil national service. They were all part of the 1,115 students who took advantage of the decision year. Currently 41,000 yeshiva students remain exempt from service, a 35% increase since 1998.

Prisoner's Religious Claim Rejected Under PLRA

A case decided earlier this month by a Kentucky federal district court illustrates the procedural hurdles that prisoners face in bringing claims for religious accommodation, despite the enactment of RLUIPA. In Franklin v. Rees, 2005 US Dist. LEXIS 13578 (WD KY, July 1, 2005), a Sikh prisoner had filed grievances for over 3 years seeking a diet consistent with his religious beliefs and items he needed for religious worship. Even though the court concedes that "plaintiff has diligently pursued his quest to have his religious needs met while confined", it rejected his claim because the Prison Litigation Reform Act (PLRA), 42 USC 1997e(a), requires that a prisoner exhaust his administrative remedies before filing suit. Here, the court said, "he has failed to satisfy the PLRA's exhaustion requirement as his many grievances did not specifically name any of the individuals that he has named as defendants in his complaint."

Closing of Uzbek Protestant Church Upheld

Forum 18 reports today that a court in Uzbekistan's northwest province of Karakalpakstan has upheld the Justice Ministry's closure of the last legal Protestant church in the province. Authorities claimed that the Emmanuel Full Gospel Church held an illegal general meeting in a private home 125 miles away from its church building in Nukus. It has also been reported that authorities in the province have been encouraging private kangaroo court proceedings against Muslim converts to Christianity. Previous postings (1, 2, 3)have reported on the long-running religious freedom issues in Uzbekistan.

Recent Law Review Article on Religion Clauses

A recent law review article of interest on defining religion under the religion clauses is Troy L. Booher, Finding Religion for the First Amendment, 38 John Marshall Law Review 469 (2004).

Vote on Fate of Mt. Soledad Cross Approaching

In a bit over two weeks, the long fight over maintaining the Mt. Soledad cross on a hill overlooking La Jolla, California will reach another milestone. Today's San Diego Union Tribune reports that on July 26, the voters of San Diego will vote on Proposition A which will authorize City Council to donate the cross site to the Federal government as a veterans' memorial.

In 1991 in Murphy v. Bilbray, 782 F. Supp. 1420, a California federal district court ruled that the cross on city land violated the "No Preference" clause of the California Constitution. Ever since then, the city has been seeking a solution. This has included attempts to sell the land to private parties, extensive additional litigation, and the inclusion of language in this year's federal budget bill that directs the Secretary of Interior to administer the site as part of the National Park System once it is donated to the federal government. In addition, California Congressman Duncan Hunter has introduced the War Memorial Preservation Act (H.R. 2229) which would specifically permit federal war memorials to recognize the religious backgrounds of members of the armed forces by including religious symbols.

Opponents claim the transfer would be an unconstitutional governmental preference for Christianity, and that the transfer would merely create Establishment Clause problems for the federal government. Opponents, though, are doing little to campaign against the ballot issue. Instead they are focusing on court challenges. There will be a court hearing this Wednesday in a suit that seeks to invalidate the referendum, or at least impose a two-thirds requirement for its passage.

UPDATE: After a July 13 hearing, Judge Patricia Yim Cowett ruled that the referendum could move forward. The Union Tribune reported that the judge said that a 2/3 vote however might be required and asked for futher briefs on other issues. A further hearing is scheduled before the date of the vote.

New Egyptian Law On Political Parties Angers Muslim Clerics

Top Egyptian clerics are speaking out against a new law on political parties that no longer requires party platforms to be consistent with Sharia (Islamic law). A member of the Parliament's religious affairs committee says that the legislation was never reviewed by his committee. A report today in Egypt Election Daily News quotes Sheikh Mohammed Sayed Tantawi, head of Al Azhar mosque as saying that several members of the Academy of Islamic Scholars, a consultative body affiliated to the Al Azhar mosque, wanted to send Parliament a memorandum on the issue. “However, I refused, saying that we did not want to get into problems with the government and parliament.”

Can Prosecutor Use Religious Beliefs of Alleged Terrorist In Closing Argument?

What role can a defendant’s religion play in a prosecutor’s closing argument? The Legal Times on Friday reported on a terrorism trial in a Virginia federal court in which Assistant U.S. Attorney Gordon Kromberg argued to the jury: "If you're a kafir, Timimi believes in time of war he's supposed to lie to you. Don't fall for it. Find him -- find Sheik Ali Timimi -- guilty as charged." A “kafir” is a non-Muslim or a non-believer. Kromberg claims that his remark was not about Islam in general, but about this individual defendant’s beliefs.

Before the trial began, the lawyers argued a pre-trial motion revolving around whether jurors could be told that defendant Timimi had said that Muslims could lie to the enemy if they were at war. Defense counsel cited Federal Rules of Evidence, Rule 610, that prohibits using witnesses’ religious beliefs to undermine or support their credibility. But the judge ruled that this statement was a political belief, not a religious one.

Timimi was indicted in 2004 on charges that he helped several others learn how to get to a terrorist training camp in Pakistan.

Tomorrow Marks 80 Years Since Scopes Trial

Sunday’s 80th anniversary of the beginning of the Scopes "Monkey Trial" is attracting a good deal of media attention. (See prior posting). Friday’s Wichita Eagle discussed the trial and two recent books about it. The books are Marvin Olasky & John Perry, Monkey Business: The True Story of the Scopes Trial (Broadman & Holman), and Michael Ruse, The Evolution-Creation Struggle (Harvard University Press), previously mentioned on this blog.

The Ashland, TN City Times on Friday reported on the Scopes Festival, held each year in Dayton, Tennessee, the site of the trial. The Festival, which features a re-enactment of the trial, is expected to draw 1,100 people this year. The organizing chairman for the festival is Tom Davis. He is affiliated with Bryan College, a religious college named for William Jennings Bryan, the prosecutor in the Scopes trial.

Pentagon Enjoined Under Establishment Clause From Funding Scout Jamboree

Every year the Boy Scouts hold their National Jamboree at Fort A.P. Hill, Virginia. Each year the Pentagon spends some $6 to $8 million transporting personnel and supplies to get the base ready for the event. That aid is authorized by 10 USC Sec. 2554 (the Jamboree statute). Today the Army Times reports that on June 22, an Illinois federal district court enjoined further funding of Boy Scout Jamborees. The injunction follows the court's earlier grant of summary judgment in the case in Winkler v. Chicago School Reform Bd. of Trustees, 2005 WL 627966 (ND IL, May 16, 2005). There the court held that the Jamboree statute violates the Establishment Clause by funding the Boy Scouts with its substantial religious component, to the exclusion of all other groups. The Scouts require an oath of duty to God, exclude atheists and agnostics from the organization, and require a prayer book as part of each scout's personal camping equipment for the Jamboree. The ruling will not affect this year's Jamboree scheduled to begin later this month.

The ACLU of Illinois also announced the injunction today. The plaintiffs in the case, who were represented by the ACLU, were Reverend Eugene Winkler and Rabbi Gary Gerson. They praised the court's action as maintaining government neutrlity toward religion.

Opinons in GA Cheerleader's Case Available

While a bit dated (story from Columbus Ga Ledger-Enquirer), there appeared on LEXIS for the first time today two opinions handed down April 28 in the case of University of Georgia cheerleading coordinator Mari Louise Braswell.

Braswell and her husband, a Christian minister, conducted Bible study classes in their home that were attended by members of the cheerleading squad. Two Jewish cheerleaders claimed that Braswell used her position to encourage students to adopt certain religious practices and that she treated non-Christian cheerleaders unfavorably. As a result of a formal complaint by one of them, the University placed Braswell on administrative probation, requiring her to eliminate the religious overtones in her program. The University also gave the complaining student an extra year to cheer and placed her on the football cheerleading squad without a tryout.

After Braswell read a public statement complaining about the handling of the complaint, the University fired her. In Braswell v. Board of Regents of the Univ System of Ga., 369 F.Supp.2d 1362 (DC ND GA, April 28, 2005), a federal district court refused to issue a preliminary injunction against the University finding that Braswell was unlikely to succeed on her free exercise of religion, free speech, equal protection and due process claims.

In a second opinion with the same caption, reported at 369 F. Supp.2d 1371, the court dismissed the damage claims against various defendants, finding 11th Amendment immunity or qualified immunity. However it permitted Braswell to proceed with her claim for reinstatement, even though it had found that it is unlikely that she will succeed on the merits.

Jewish Groups Hesitate To Take Active Role In SCOTUS Nomination Fight

Yesterday, the Jewish Journal of Greater Los Angeles reported on the "awkward" position in which Jewish groups find themselves in the battle over who will succeed Sandra Day O'Connor on the US Supreme Court. It points out that many Jewish groups hesitate to oppose specific candidates, particularly because that may sacrifice political capital and access in a fight with little chance of success. But traditional coalition partners may pressure the groups to weigh in. Also, Jewish groups are increasingly divided on domestic issues. Strong support for church-state separation is the main issue that unites them. A few of the more liberal Jewish groups, like the National Council of Jewish Women and the Religious Action Center of Reform Judaism, however, are likely to be active in the political fight according to the paper. They will focus not just on church-state, but on reproductive rights and civil rights as well.

A similar conclusion is reached in a story in today's Cleveland Jewish News. Its interviews with leaders of a number of Jewish organizations indicate Jewish concern over who will be selected. However, much of their involvement is likely to be low key and behind the scenes.

New Book on Pluralistic America

Encounter Books has recently published The Right to be Wrong: Religion and Freedom in a Pluralistic America, written by Kevin Seamus Hasson, founder of the Becket Fund for Religious Liberty. Here is part of the publisher's description: "No area of civil government seems safe from the ongoing struggle between those who say only the true faith belongs in public and those who say that no faiths do. Who are the people behind this battle? ... Hasson thinks of them as “the Pilgrims” and the “Park Rangers.” Pilgrims believe that their truths require them to restrict others' religious freedom. Park Rangers believe that their freedoms require them to make sure others' religious truths remain private. Together, these groups are responsible for the impasse over the role of religion in our public life. The [book] explains why the Pilgrims and Park Rangers are both mistaken."

School Sued After Refusing Religious Immunization Waiver

Parents of a Rochester, New York area high school student have sued the Rush-Henrietta Central School District, seeking a temporary restraining order and $1 million in damages for civil rights violations, according to an AP article in yesterday's NY Newsday. The federal lawsuit alleges that school officials barred plaintiffs' son from the lacrosse team because he refused to get a tetanus shot for religious reasons. The parents had obtained a waiver from immunizations on religious grounds under New York's Public Health Law. School officials claim that waiver covers only academics, and not athletics.

Two Muslim Religious Leaders Condemn London Bombings

At least two Middle Eastern Muslim religious leaders have strongly condemned the bombings that occurred today in London, according to a report from Islam Online. From Cairo, Al-Azhar Grand Imam Sheikh Mohammad Sayyed Tantawi said: "Those responsible for London attacks are criminals who do not represent Islam or even truly understand (its message)." He went on to denounced the killing of civilians, including women and children, "without differentiating between combatants and non-combatants." Tantawi, who is the highest spiritual authority for Sunni Moslems around the world, has previously condemned suicide bombings against Israeli civilians.

From Lebanon, a leading Shiite scholar, Mohammad Hussein Fadlallah, said: "These crimes are not accepted by any religion. It is a barbarism wholly rejected by Islam." In addition many government officials and ordinary citizens throughout the Middle East were quoted by Islam Online as denouncing the killings.

Intelligent Design Gains Support of Austrian Cardinal

The controversy over teaching Intelligent Design in the schools is likely to heat up as a leading Catholic Cardinal, Christoph Schonborn, seemingly endorsed the theory today in a New York Times op-ed titled Finding Design in Nature. Schonborn, the Cardinal Archbishop of Vienna, was the lead editor of the 1992 Catechism of the Catholic Church. Minimizing the importance of a 1996 letter by Pope John Paul II that seemed to endorse evolutionary theory, Schonborn said: "Any system of thought that denies or seeks to explain away the overwhelming evidence for design in biology is ideology, not science."

1st Circuit Denies Standing In Challenge To Holiday Displays

Yesterday in Osediacz v. City of Cranston, the US First Circuit Court of Appeals rejected a challenge to a holiday display policy in Cranston, Rhode Island, finding that plaintiff lacked standing. In 2003, the city allowed private parties to place "appropriate" holiday displays on City Hall lawn, subject to approval of the mayor. The trial court had rejected plaintiff's Establishment Clause challenge to the policy, but had found that the policy violated the First Amendment's speech clause by placing standardless discretion in the mayor to approve or disapprove displays. However the Court of Appeals held that because plaintiff had no interest in erecting a display, she would not be subject to the vagaries of the approval process. Because she had no personal interest beyond that of any resident or taxpayer, she lacked standing to maintain the challenge.

More on Judge McConnell's Views

In response to my posting yesterday on Religion Clause opinions of potential Supreme Court nominees, commenters have suggested additional sources on Judge Michael McConnell's views. While not strictly a free exercise or establishment clause opinion, McConnell wrote a concurring opinion in O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir., Nov. 12, 2004). It involves the standard for granting a preliminary injunction when a practice is challenged under the Religious Freedom Restoration Act. The US Supreme Court has granted certiorari in the case. [Thanks to Derek L. Gaubatz]

Also, McConnell has written at least 3 law review articles on the religion clauses, Here they are with links to LEXIS: The Problem of Singling Out Religion, 50 DePaul Law Review 1 (2000); Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 William & Mary Law Review 2105 (2003); The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law Review 1409 (1990) . [Thanks to Troy L. Booher]

ADL Objects To Lunchtime Prayer At Naval Academy

The Baltimore Sun this morning reports on a letter sent to the US Naval Academy last month by the Anti Defamation League objecting to organized lunchtime prayer at the Academy. The ADL's June 17 letter objected to the Academy's requiring all the midshipmen to "stand in formation, before lunch, while the chaplain recites a prayer." Chaplains of different faiths rotate in giving the prayer. The Academy said that part of the reason for the prayer is to encourage future officers to understand other religions. In 2003, the ACLU had filed a similar complaint with the Academy.

Bishops Conference Outlines Concerns On Supreme Court Appointment

Spokane Bishop William S. Skylstad, president of the United States Conference of Catholic Bishops, wrote President Bush last Friday regarding the type of person the USCCB would like to see nominated to replace retiring US Supreme Court Justice Sandra Day O'Connor. His letter, which is included in the USCCB's July 6 press release, says in part:

"I urge you to consider for the Court qualified jurists who, pre-eminently, support the protection of human life from conception to natural death, especially of those who are unborn, disabled, or terminally ill. I would ask you to consider jurists who are also cognizant of the rights of minorities, immigrants, and those in need; respect the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment; recognize the value of parental choice in education; and favor restraining and ending the use of the death penalty. "

Chinese Church Leader To Be Tried For Illegally Printing Bibles

The leader of an underground Chinese church who has been in custody for 10 months is scheduled to appear in court in Beijing tomorrow, according to a report by BBC News. Cai Zhuohua, along with his wife and two other church members, has been charged with "illegal business practices" for printing over 200,000 Bibles. Only one company is permitted by the Chinese government to print Bibles. Cai's lawyer, Gao Zhisheng, said that the Bibles were not going to be sold, but were to be distributed free. He continued, "Authorities are always using economics as a pretext to deal with religious and political issues".

New Sudan Constitution Grants Concession to Non-Muslims

Today the AP in a story carried by the Los Angeles Times reports that Sudan's National Assembly has adopted a new Constitution. (See earlier related posting.) The new charter moves the country away from complete Islamic rule. For the first time, the Constitution protects freedom of religion and expression. After a peace agreement with the country's southern rebels, the new Constitution provides that Islamic law will not be applied in the south of the country which is mainly Christian and animist. It also removes the present requirement that the country's President be a Muslim, paving the way for Christian rebel leader John Garang to be sworn in as First Vice President.

Religion Clause Views of Potenital Supreme Court Nominees

In last week's New York Times, Neal A. Lewis wrote In List of Potential Justices, Many Kinds of Conservative suggesting eight leading candidates for replacing Justice Sandra Day O'Connor. Seven of the eight are sitting judges. What kind of Religion Clause opinions have the seven written?

For three, I could find none-- Judges John G. Roberts (DC Circuit), Michael McConnell (10th Circuit), and Edith Brown Clement (5th Circuit). [If you know of opinions I have missed, please let me know.] However, here is an article written in 1995 by Michael McConnell while he was a Professor at the University of Chicago Law School, titled The Movement For Religious Rights. It appeared in The American Enterprise.

For the other potential nominees, I was able to find Free Exercise and/or Establishment Clause opinions they authored. Here is a Religion Clause opinion from each:

Judge J. Harvie Wilkinson III (Fourth Circuit)- Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (April 14, 2005)- dismissal of claim by Wiccan seeking to be added to list of those who could give legislative invocation.

Judge J. Michael Luttig (Fourth Circuit)- Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (Aug. 14, 1998)- upheld single day each school year for distribution of religious and political literature in high schools by private groups. But struck down practice as to elementary schools.

Judge Edith H. Jones (5th Cir.)- Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854 (May 7, 2004)- upheld against Free Exercise challenge prison’s policy on holding of religious services.

Judge Emilio Garza (5th Cir.)- Dissent in Doe by Doe v. Beaumont Indep. School Dist., 173 F.3d 274 (April 16, 1999) [LEXIS link]- dissent would reject Establishment Clause challenge to "Clergy in the School" character education program. Note: apparently this opinion was withdrawn after an en banc rehearing reported at 240 F.3d 462 in which opinions were written by others.

Also widely mentioned elsewhere as a possible nominee is Judge Samuel A Alito, Jr. (Third Circuit). Among his opinions is Blackhawk v. Pennsylvania, 381 F.3d 202 (Aug. 20, 2004)- found Free Exercise violation in refusing waiver of a permit fee requirement under the Pa. Game & Wildlife Code for Native American keeping animals for religious purposes.

Recent Church-State Law Review Articles

The Spring 2005 issue of the Journal of Church and State has recently been published. Its table of contents and a few of its features are available online free of charge. The full issue is available on Westlaw. The issue contains 7 articles and reviews of 21 books.

SmartCILP this week lists these new articles of interest:

Thomas C. Berg, Minority Religions and the Religion Clause, 82 Washington Univ. Law Quar. 919-1000 (2004).

David A. Fraser, A Passive Collaboration: Bureaucracy, Legality, and the Jews of Brussels, 1940-1944, 30 Brooklyn J. Int'l. L. 365-420 (2005).

Lee Ann Rabe, A Rose By Any Other Name: School Prayer Redefined As a Moment of Silence Is Still Unconstitutional, 82 Denver Univ L. Rev. 57-78 (2004).

Ellen S. Reinstein, Turn the Other Cheek, or Demand an Eye for an Eye? Religious Persecution in China and an Effective Western Response, 20 Connecticut Jour. Int'l. Law 1-37 (2004).

New Progressive Christian Group Supports Church-State Separation

The Christian Alliance for Progress (CAP) is a new grassroots progressive religious movement. The Inter Press Service News Agency reported yesterday that the group began organizing 4 months ago and has attracted 4000 members. According to the article: "CAP's core principles include commitments to economic justice, environmental stewardship, equality for homosexuals, effective prevention -- but not criminalisation -- of abortion, peaceful solutions to international disputes, and universal health care for all U.S. citizens."

Last week CAP delivered The Jacksonville Declaration, challenging the stance of the Christian right, proclaiming in part: "We do not support your agenda to erode the separation of church and state, to blur the vital distinction between your interpretation of Christianity and our shared democratic institutions. Moreover, we do not accept what seems to be your understanding of Christian values. We reject a Christianity co-opted by any government and used as a tool to ostracize, to subjugate, or to condone bigotry, greed and injustice."

NPR On the Scopes "Monkey Trial"

National Public Radio yesterday marked the 80th anniversary of the Scopes "Monkey Trial". The audio of a very interesting piece by Noah Adams is available on its website, as is a Timeline of the trial and other coverage of the evolution-creationism debate.