Wednesday, June 29, 2005
Cert Denied In Other 10 Commandments Cases
The McCreary County case which the Supreme Court decided on Monday involved the posting of the Ten Commandments in two court houses. When the 6th Circuit below decided the cases, they had been consolidated with a third case, Harlan County v. ACLU of Kentucky, which involved posting of a similar display in a school. The Lexington Herald-Leader reports that yesterday the Supreme Court denied certiorari in the Harlan County case, as well as in three Ohio cases involving Ten Commandments postings in schools and a court house.
Tuesday, June 28, 2005
Analysis: Van Orden and Stevens' Hints As To "Charitable Choice"
While there is much in yesterday's various Van Orden opnions from the Supreme Court that is worthy of note, I would like to focus on one excerpt from Justice Stevens dissent because of its implications for the future in battles over "charitable choice". (See prior post for discussion of the McCreary County opinion.) In discussing the history of the monuments erected by the Fraternal Order of Eagles, Stevens says (pp. 9-10):
"The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the"law of God"—directing fidelity to God and proscribing murder, theft, and adultery—the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular by-products that are intended consequences of religious instruction—indeed, of the establishment of most religions—are not the type of "secular" purposes that justify government promulgation of sacred religious messages."
"Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. "
Isn't the argument that Justice Stevens is rejecting exactly the argument made by many proponents of "charitable choice" today?
"The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the"law of God"—directing fidelity to God and proscribing murder, theft, and adultery—the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular by-products that are intended consequences of religious instruction—indeed, of the establishment of most religions—are not the type of "secular" purposes that justify government promulgation of sacred religious messages."
"Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. "
Isn't the argument that Justice Stevens is rejecting exactly the argument made by many proponents of "charitable choice" today?
Analysis: Quotations of Note from McCreary County
It is time to look beyond result to some of the doctrinal implications of yesterday's Ten Commandments decisions. Here are a few of the things said along the way in McCreary County that merit further attention. A second posting will look at excerpts from Van Orden.
From Justice Souter's majority opinion:
Putting some bite into the "purpose" inquiry: "The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it.... There is no precedent for the Counties' arguments.... [T]he secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." (pp. 15-16) This is important because at least some lower courts have been ready to uphold governmental action motivated by religious considerations so long as some minor secular justification could be uncovered as well.
Diminishing the importance of symbolic expression: "Displaying that text [of the Ten Commandments] is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view."(pg. 20). Justice Souter is old enough to remember the aphorism: "The medium is the message". Is it really only text that sends a message today?
Reaffirming neutrality: "Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters... but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate...." (pg. 28). Given the fundamental challenge to Establishment Clause principles in recent years, this is a useful primer on behalf of a majority of the Court.
From Justice Scalia's dissent in McCreary:
Notion of a religious peoplehood: "[I]n the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority."(pg. 16) Rarely have proponents of governmental expression of religion so candidly acknowledged an interest in the government cementing a national (or state-wide) religious community.
From Justice Souter's majority opinion:
Putting some bite into the "purpose" inquiry: "The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it.... There is no precedent for the Counties' arguments.... [T]he secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." (pp. 15-16) This is important because at least some lower courts have been ready to uphold governmental action motivated by religious considerations so long as some minor secular justification could be uncovered as well.
Diminishing the importance of symbolic expression: "Displaying that text [of the Ten Commandments] is thus different from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view."(pg. 20). Justice Souter is old enough to remember the aphorism: "The medium is the message". Is it really only text that sends a message today?
Reaffirming neutrality: "Given the variety of interpretative problems, the principle of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the prerogative of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individual conscience in religious matters... but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate...." (pg. 28). Given the fundamental challenge to Establishment Clause principles in recent years, this is a useful primer on behalf of a majority of the Court.
From Justice Scalia's dissent in McCreary:
Notion of a religious peoplehood: "[I]n the context of public acknowledgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority."(pg. 16) Rarely have proponents of governmental expression of religion so candidly acknowledged an interest in the government cementing a national (or state-wide) religious community.
Commentary On Getting It Right and Reading It Wrong
On balance, it seems to me that the Supreme Court got it more right than wrong yesterday in its Ten Commandments opinions. The atmosphere of the 1950's was substantially different than that of the past decade. While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country.
There is evidence, however, that evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn. It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion.
There is evidence, however, that evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn. It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion.
Editorials On Supreme Court's 10 Commandments Rulings
In no particular order, here are links to a sampling of editorials on yesterday's Ten Commandments decisions from today's newspapers: New York Times; Washington Post; Austin American Statesman; Atlanta Journal Constitution; Salt Lake Tribune; Indianapolis Star; Minneapolis Star Tribune; Baltimore Sun; Seattle Post Intelligencer; Chicago Tribune.
Monday, June 27, 2005
Commentary On Ten Commandments Decisions Available
Extensive commentary on today's US Supreme Court "Ten Commandments decisions" will be available on SCOTUS Blog's special discussion site. Click here. I plan to let the dust settle and weigh in tomorrow with my comments.
US Supreme Court Strikes Down Ten Commandments In KY Court Houses, But Upholds Texas Capitol Display
UPDATED: In a 5-4 decision today, the US Supreme Court in McCreary County v. ACLU of Kentucky held that the Kentucky display of the Ten Commandments in two court houses violates the Establishment Clause, according to a report by CNN. Justice Souter's opinion for the court said that the predominant purpose of these displays was the advancement of religion. Though he said that in other contexts, like the frieze in the US Supreme Court, a neutral display that honors the nation's legal history would be permissible. Justice O'Connor wrote a concurring opinion. Justice Scalia wrote the dissent. The full opinions are available online.
However, also in a 5-4 decision, the Court upheld the display of the Ten Commandments on the lawn of the Texas state capitol in Van Orden v. Perry. Chief Justice Rehnquist wrote the majority opinion. Here is the full text of the various opinions in the case.
As an aside, I predicted this result (albeit cautiously) in an earlier posting.
(Also thanks to SCOTUS Blog for some of these leads.)
However, also in a 5-4 decision, the Court upheld the display of the Ten Commandments on the lawn of the Texas state capitol in Van Orden v. Perry. Chief Justice Rehnquist wrote the majority opinion. Here is the full text of the various opinions in the case.
As an aside, I predicted this result (albeit cautiously) in an earlier posting.
(Also thanks to SCOTUS Blog for some of these leads.)
Illinois Expands Hate Crime Definition
Illinois Governor Rod Blagojevich yesterday signed into law SB 287 (full text) according to a report from the Associated Press. The new law expands the definition of hate crimes to include the use of electronic communications to harass a person because of religion, race, gender, sexual orientation, disability or national origin.
Russian Prosecutor Pursues Jewish Organization For Distributing Classic Writing
In a move reminiscent of Stalinist times, the Russian State Prosecutor has ordered an investigation of Russia's Congress of Jewish Organizations because the group has distributed an abbreviated Russian translation of the Shulkhan Arukh, a classic code of Jewish law compiled in the 16th century. According to a report in today's Haaretz, the Prosecutor is looking into whether statements in the work regarding the treatment of non-Jews constitute racist incitement and anti-Russian material. The inquiry, which has been reported widely in the Russian press, follows an increase in anti-Semitic incidents in Russia.
UPDATE: On Tuesday, June 28, the Russian State Prosecutor announced that he is cancelling this investigation, according to a report in Haaretz.
UPDATE: On Tuesday, June 28, the Russian State Prosecutor announced that he is cancelling this investigation, according to a report in Haaretz.
Police Officer Allegedly Targets Druid Couple In Traffic Stop
In Greer, SC, a couple claims that their Druid bumper stickers triggered their traffic stop, according to yesterday's World Net Daily. The policeman who ticketed them, they say, attempted to talk them out of their religious beliefs. After arresting them on charges of driving with a suspended license, operating a vehicle with an improper tag and failing to have proof of insurance, the officer sent a card and a letter to their home saying that their problems would continue unless they listened to the word of the Baptists.
Native American Sweat Lodges In Prisons
Accommodating the vast array of religious ritual requests from prisoners, now that the Supreme Court has upheld RLUIPA, will be a continuing challenge for correctional officials. Saturday's New York Times carried an interesting in-depth description of one accommodation that seems to be working-- the Native American Sweat Lodge at northern Connecticut's MacDougall-Walker Correctional Facility. Many states, though, are still concerned about the security problems posed by sweat lodges.
Sunday, June 26, 2005
Tulsa Zoo To Add Creationism Display
The newest battleground for creationism may be the nation's zoos. The Dallas Morning News reported yesterday that, in response to pressure, the Tulsa, Oklahoma zoo board has voted to put up a creationism display along side its long-standing display on evolutionary science. A local architect who leads creationist tours of the zoo has helped design a prototype of the display-- all the verses from Genesis 1 to 2:3, illustrated with color photographs. But zoo officials are working on a broader display that will add other cultural viewpoints as well.
Limit On Changing MA Blaine Amendment Upheld By 1st Circuit
On Friday, in Wirzburger v. Galvin, the US 1st Circuit Court of Appeals rejected a series of constitutional challenges, including a Free Exercise challenge, to provisions in the Massachusetts state constitution relating to initiatives. Plaintiffs wished to use the initiative process to repeal Massachusetts' prohibition on state aid to religious schools (the state's version of the Blaine Amendment, Art. 46). While Art. 48 of the Massachusetts Constitution permits amendment by initiative, it excludes from that process any amendment to the prohibition on aid to religious schools and any amendment that relates to religion, religious practices, or religious institutions. The court found that those exclusions did not violate plaintiffs' freedom of expression or free exercise of religion nor did the exclusions deny plaintiffs equal protection of the laws.
Part of plaintiffs' argument turned on whether the challenged provisions were motivated by anti-religious animus. The court found there was widespread anti-Catholic prejudice behind the original Anti-Aid Amendment in 1855; but it was revised in 1917 with the support of most of the Catholic delegates to the Constitutional Convention. Then the prohibition on amending the Anti-Aid clause through initiative was passed with similar broad support. Nothing showed that this was motivated by Anti-Catholic animus.
Part of plaintiffs' argument turned on whether the challenged provisions were motivated by anti-religious animus. The court found there was widespread anti-Catholic prejudice behind the original Anti-Aid Amendment in 1855; but it was revised in 1917 with the support of most of the Catholic delegates to the Constitutional Convention. Then the prohibition on amending the Anti-Aid clause through initiative was passed with similar broad support. Nothing showed that this was motivated by Anti-Catholic animus.
New London Decision May Pose Special Risk for Churches
Last Monday, the US Supreme Court decided the case of Kelo v. New London, which upheld broad eminent domain powers of state and local governments. (4 Justices dissented.) Now some religious leaders are suggesting that the decision poses special threats for religious institutions. In a report carried Friday by Beliefnet, Jared Leland of the Beckett Fund for Religious Liberty suggested that because properties owned by non-profit institutions do not generate tax revenues, they will be particularly attractive targets for local governments to take for economic redevelopment.
Judge Questions EEOC Religious Discrimination Consent Decree
On June 13 the video rental chain Blockbuster agreed with the EEOC to a consent decree in a case charging that a Blockbuster manager in Scottsdale, AZ, had refused to permit an Orthodox Jewish employee wear his yarmulke at work. The store must pay a $50,000 penalty and modify its employee handbook and operating procedures. So far, this seems unremarkable. But, according to yesterday's East Valley Tribune, the federal judge who signed the consent decree was hesitant to do so, suggesting that under the 1985 US Supreme Court case of Estate of Thornton v. Caldor, Title VII of the 1964 Civil Rights Act as applied here might be unconstitutional under the Establishment Clause. But the EEOC attorney involved said that the 1985 case involved a statute that did not have exceptions for accommodations that unduly burden the employer.
Friday, June 24, 2005
Op Ed: US Senate Bill Gives Native Americans Religious Veto
In a Seattle Times op-ed today, University of Tennessee Anthropology Professor Richard L. Jantz calls attention to an upcoming hearing before the US Senate Indian Affairs Committee on Senate Bill 536 (Sec. 108). It will amend Native American Graves Protection and Repatriation Act (NAGPRA) to give Native American tribes broader control over pre-historic human remains found in the United States. According to Prof. Jantz, the amendment "would automatically give tribes the authority to control all evidence that may contradict their particular religious beliefs and give tribes complete veto power over scientific research on those remains." Those supporting the amendment claim that provisions in the Act limiting tribes' control to remains with which they can show a cultural affiliation will prevent the problem. Dr. Jantz disagrees. The amendment would codify an interpretation that the government unsuccessfully argued for in Bonnichsen v. US, a 9th Circuit Court of Appeals Case decided act year.
Ohio Bill Calls For Posting Mottos Mentioning God In Schools
On Tuesday, in another try to find ways to post references to God in school classrooms, the Ohio House of Representatives passed House Bill 184 and sent it on to the Ohio Senate. The bill provides that if a reasonably sized copy of the US motto"In God We Trust", or the Ohio motto "With God, All Things Are Possible", is donated to a school district, or if money is donated to purchase copies, the district must accept the donation and display the motto in a school classroom, auditorium, or cafeteria. By the way, in 2001, in ACLU v. Capitol Square Review & Advisory Bd., the federal 6th Circuit Court of Appeals (en banc) upheld Ohio's official motto against an Establishment Clause attack.
Book Review
Findlaw today carries a book review by Noah S. Leavitt of two books on church-state issues, Marci Hamilton's God vs. The Gavel and Kent Greenawalt's Does God Belong In the Public Schools?
Thursday, June 23, 2005
Copyright Used To Attempt To Silence Criticism of Religious Prophecies
Can copyright laws be used to stifle legitimate criticism of a religion's beliefs? A press release today from Watchtower Whistleblower traces attempts by the Watch Tower Bible and Tract Society of Pennsylvania to shut down a website that carried quotes from past Jehovahs Witness publications in order to show that Witness' prophecies had not come true. After halting operations for a few days last month, the website, http://quotes.watchtower.ca is back in operation, at least for the time being.
Taiwan To Regulate Religious Release of Animals
Expanding on their religious duty to save any animal that is trapped, it has become a custom in China for Buddhists to buy various animals and then free them in a religious ceremony in order to bring good fortune. This practice has caused increasing ecological and environmental problems. Today, CNA News reports that in Taiwan, the Cabinet-level Council of Agriculture has proposed new regulations on freeing animals for religious purposes that will conserve the island's ecological system. Scientists and conservationists have become increasingly concerned about the 200 million animals that are released in Taiwan each year. Problems include both the inability of captive-bred animals to survive and damage caused by the introduction of non-native species.
Prisoner's Claim For Lost Religious Items Permitted To Continue
In Crump v. May, 2005 U.S. Dist. LEXIS 12013 (D.DE, 6/16/2005), the federal district court in Delaware has permitted a prisoner to proceed with his claim that while being moved between prison facilities, his Koran and Kufi were taken and never returned to him. It held that this raised a First Amendment Free Exercise claim, while the negligent loss of his jewelry and personal items did not. Claims as to loss of non-religious items were dismissed as not raising a due process issue; the appropriate remedy was an action in state court.
In Britain: Can Religious Belief Be Invoked To Refuse To Trim Trees?
Claims for religiously-motivated exemptions from general regulations take many forms. This report comes from yesterday's London Daily Mail via Beliefnet. In Gosport, Hampshire in England, rules under Britain's Anti-Social Behaviour Act give local authorities the power to order homeowners to trim back trees and hedges over 6 and one-half feet tall if they obstruct a view or block out light. Trina Horey is refusing her neighbor's demand that she cut back her 15 foot-high conifer trees, citing religious beliefs. She says she cannot trim the conifers without getting the trees' permission first. "As a pagan, I don't believe in harming living trees. We have to ask its permission to prune a tree and we never rip it out from the root."
Wednesday, June 22, 2005
Air Force Academy Investigation Report Issued
The special team headed by Lt. Gen. Robert A. Brady, selected by the Air Force to look into problems of religious intolerance at the Air Force Academy, filed its report today. A release issued by the Air Force describes some of the report's findings: a lack of operational guidance on what is appropriate, the failure of the Academy to address issues of religious accommodation, and the youth and inexperience of the student body. The Air Force has promised to release the full text of the report, and this posting will be updated to link to it as soon as it is available.
UPDATE: Now available online-- (1) Cover Letter Transmitting Report; (2) the 100-page Report of the Headquarters Review Group Concerning the Religious Climate at the U. S. Air Force Academy; and (3) Summary of Complaint Analysis Against Brig. Gen. Weida.
UPDATE: Now available online-- (1) Cover Letter Transmitting Report; (2) the 100-page Report of the Headquarters Review Group Concerning the Religious Climate at the U. S. Air Force Academy; and (3) Summary of Complaint Analysis Against Brig. Gen. Weida.
NJ Anti-Discrimination Law Exempts Religious Colleges
A New Jersey Court of Appeals held today that Seton Hall University, a Catholic college, could deny recognition to a gay and lesbian student group on the ground that recognition is inconsistent with the teachings of the Catholic Church. In the full opinion in Romeo v. Seton Hall University , the court held that New Jersey's Law Against Discrimination exempts from its provisions "any educational facility operated or maintained by a bona fide religious or sectarian institution". It also rejected waiver and breach of contract claims put forward by the student group. A report on the decision is in today's Star-Ledger. (Thanks to Steven Sholk for the lead.)
Australian Pastors Ordered To Apologize For Vilifying Islam
In Australia, the Victorian Civil and Administrative Tribunal has just issued a 140-page opinion (full text) and ordered a Remedy (full text) in the case of Islamic Council of Victoria v. Catch the Fire Ministries. According to a report today from News.com.au, the suit was the first to be heard under the Racial and Religious Tolerance Act of 2001. Plaintiffs alleged that two pastors had made statements disparaging Islam in a speech, a newsletter and on a website. The lengthy statements included claims that Islam was inherently violent and that Muslims were planning to impose their faith on Australia. The court ordered the Pastors to publish an apology in specified newspapers, in their newsletter and on their website. The Remedy order set out the text of the required statement. It also requires the Pastors to agree that they will not make similar statements in the future. At least one of the defendants, viewing this as a freedom of speech issue, says he would rather go to jail than apologize. The case is being appealed to the Supreme Court of Victoria.
Md. Federal Trial Judge Upholds 10 Commandments Monument
Just days before the US Supreme Court is expected to rule on the constitutionality of placing the Ten Commandments on public property, a federal district judge in Baltimore upheld a Ten Commandments monument in a city park in Frederick, Maryland. In this case, in the face of a challenge to the monument in 2002, the city had sold the monument and the strip of park land on which it stood to the Fraternal Order of Eagles. According to a report in today's Baltimore Sun, Judge Quarles opinion held that no reasonable observer, aware of the history and context, would see the monument as a government endorsement of religion.
UPDATE: The full opinion in Chambers v. City of Frederick is now available.
UPDATE: The full opinion in Chambers v. City of Frederick is now available.
President Addresses Southern Baptist Annual Meeting
Yesterday, President Bush addressed the Southern Baptist Convention Annual Meeting by satellite from Washington. The meeting is being held in Nashville, TN. The text of his full remarks, as well as a video of his presentation, are available online from the White House website. His speech included the following call for Congressional enactment of his faith-based initiative:
"Because faith-based groups should never have to forfeit their religious liberty to get federal dollars -- and that's an important concept -- we want your help, we want your love, but at the same time, you do not have to forget the mission of faith or ignore the mission of faith that calls you to action in the first place. And that's why the executive order I signed should be codified into federal law. Congress needs to pass charitable choice legislation to forever guarantee equal treatment for our faith-based organizations when they compete for federal funds."
"Because faith-based groups should never have to forfeit their religious liberty to get federal dollars -- and that's an important concept -- we want your help, we want your love, but at the same time, you do not have to forget the mission of faith or ignore the mission of faith that calls you to action in the first place. And that's why the executive order I signed should be codified into federal law. Congress needs to pass charitable choice legislation to forever guarantee equal treatment for our faith-based organizations when they compete for federal funds."
New Church-State Scholarship
Cardozo Prof. Marci A. Hamilton's review essay of Jeffrey Stout's book, Democracy and Tradition, appears in the April 2005 issue of the Minnesota Law Review. The article "What Does "Religion" Mean in the Public Square?" is at 89 Minn. L. Rev. 1153 (2005). (Thanks to SmartCILP).
UPDATE: Also posted earlier this month on SSRN is Michael J. Perry, A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture, to appear in Roger Williams Univ. L. Rev., Vol. 10, pp. 349-89 (2005).
UPDATE: Also posted earlier this month on SSRN is Michael J. Perry, A Right to Religious Freedom? The Universality of Human Rights, the Relativity of Culture, to appear in Roger Williams Univ. L. Rev., Vol. 10, pp. 349-89 (2005).
Tuesday, June 21, 2005
CAIR Seeks Use of Koran For Muslim Witnesses' Oaths In NC
The Council on American-Islamic Relations is asking courts in North Carolina to permit Muslims to be sworn as witnesses using the Koran rather than the Bible. Today's Charlotte Observer says that the Administrative Office of the Courts has ruled that use of the Koran is permissible. However, judges in Guilford County refuse to use the Koran. They have turned down an offer by Greensboro's Islamic Center to donate copies of the Koran to the court. The issue now moves to consideration at judicial conferences in North Carolina this week.
AF Academy Issues Lead To Ugly Charges On House Floor
An ugly exchange broke out on the House floor yesterday as Congress debated the Defense Appropriations Bill. At issue, according to the report in today's Washington Post, was the language Congress would use in calling for the Air Force to report on the charges of religious intolerance at the Air Force Academy. After Democrats introduced an amendment calling for the Air Force Academy to develop a plan to prevent "coercive and abusive religious proselytizing", Indiana Representative John Hostettler said:
"The long war on Christianity in America continues today on the floor of the House of Representatives" and "continues unabated with aid and comfort to those who would eradicate any vestige of our Christian heritage being supplied by the usual suspects, the Democrats. Like a moth to a flame, Democrats can't help themselves when it comes to denigrating and demonizing Christians."
Eventually Hostettler withdrew his remarks under threat of a ruling by the chair that he had violated House rules by disparaging another member. The Democratic amendment was ultimately defeated and was replaced by a milder Republican version calling for the Air Force to report on how it is promoting religious tolerance. The full text of the debate is available in yesterday's Congressional Record.
"The long war on Christianity in America continues today on the floor of the House of Representatives" and "continues unabated with aid and comfort to those who would eradicate any vestige of our Christian heritage being supplied by the usual suspects, the Democrats. Like a moth to a flame, Democrats can't help themselves when it comes to denigrating and demonizing Christians."
Eventually Hostettler withdrew his remarks under threat of a ruling by the chair that he had violated House rules by disparaging another member. The Democratic amendment was ultimately defeated and was replaced by a milder Republican version calling for the Air Force to report on how it is promoting religious tolerance. The full text of the debate is available in yesterday's Congressional Record.
Introduction of "Pledge and Prayer Amendment" Expected
The Hill reported yesterday that Oklahoma Representative Ernest Istook plans to introduce a Constitutional amendment to permit religious expression in public schools and on public property. It is expected that he will propose the measure soon after the US Supreme Court decides its pending Ten Commandments cases. Istook's Pledge and Prayer Amendment "would allow the display of the Ten Commandments and other historical religious documents on public property", "allow greater freedom for students who wish to pray" and "allow students to recite the entire Pledge of Allegiance" — including the line "one nation, under God". The proposal already has 45 co-sponsors and Istook is looking for more through a "Dear Colleague" letter he is circulating. Istook has introduced similar amendments in the past.
House Holds Hearings on Vietnam Religious Freedom as Prime Minister Arrives
Today Prime Minister Phan Van Khai of Vietnam will visit the United States. His arrival marks the tenth anniversary of the creation of diplomatic relations with Vietnam. In anticipation of the visit, yesterday the House Subcommittee on Africa, Global Human Rights and International Operations held hearings on Human Rights in Vietnam. Witnesses emphasized ongoing issues of religious freedom and religious persecution in that country. Testimony of witnesses is available online (scroll to June 20, 2005 hearings). (See prior related post.) At his press briefing yesterday, President Bush's Press Secretary, Scott McClellan said that talks between the President and the Prime Minister will focus on Vietnam's bid to join the World Trade Organization, accounting for Americans who remain missing from the Viet Nam War, as well as religious freedom and human rights concerns.
Anticipating concerns, Prime Minister Khai wrote an op-ed piece in today's Washington Times. In reviewing a number of developments in his country, Khai wrote: "Vietnam is a country of many religions. Major religions in the world like Buddhism, Catholicism and Protestantism are all present in Vietnam. They exist in harmony with traditional beliefs and indigenous creeds. Indeed, religion is central to the identities of many of my fellow countrymen. It is our consistent policy to regard beliefs and religion as a basic spiritual need of the people. The freedom of religion and of non-religion is respected and protected. We are working with religious groups in Vietnam to strengthen our society. We welcome and appreciate the participation by religious organizations in national construction, national defense and endeavors to improve people's lives."
UPDATE: After Prime Minister Khai's visit to the White House, he and the President issued a joint statement (full text) that included the following: "The two leaders agreed on the importance of continuing an open and candid dialogue on issues of common concern, including human-rights practices and conditions for religious believers and ethnic minorities. The President welcomed Vietnam's efforts to date and encouraged further progress."
Anticipating concerns, Prime Minister Khai wrote an op-ed piece in today's Washington Times. In reviewing a number of developments in his country, Khai wrote: "Vietnam is a country of many religions. Major religions in the world like Buddhism, Catholicism and Protestantism are all present in Vietnam. They exist in harmony with traditional beliefs and indigenous creeds. Indeed, religion is central to the identities of many of my fellow countrymen. It is our consistent policy to regard beliefs and religion as a basic spiritual need of the people. The freedom of religion and of non-religion is respected and protected. We are working with religious groups in Vietnam to strengthen our society. We welcome and appreciate the participation by religious organizations in national construction, national defense and endeavors to improve people's lives."
UPDATE: After Prime Minister Khai's visit to the White House, he and the President issued a joint statement (full text) that included the following: "The two leaders agreed on the importance of continuing an open and candid dialogue on issues of common concern, including human-rights practices and conditions for religious believers and ethnic minorities. The President welcomed Vietnam's efforts to date and encouraged further progress."
CLS Suit Against University of Toledo Settled
The Alliance Defense Fund reported last week that a settlement has been reached in a suit filed by the Christian Legal Society against the University of Toledo. One of a series of claims around the country against law schools by the CLS (see prior posting), the suit challenged attempts by the University to apply its non-discrimination policy to CLS. CLS requires anyone seeking to become a member to subscribe to its Statement of Faith. CLS interprets the Statement to prohibit homosexual conduct and heterosexual sex outside of marriage by those who wish to become full members of the organization.
The ADF reports: "University of Toledo officials agreed to accept the CLS chapter’s constitution and to recognize the group as an official registered student organization. The university also agreed to allow all student organizations to include references and citations to religious texts, such as the Bible, in their constitutions and bylaws. The university further acknowledged that religious student organizations are not required to abide by non-discrimination policies that would force the groups to accept leaders and members who do not agree with their beliefs."
Last year, Ohio State University reached a similar settlement with CLS.
The ADF reports: "University of Toledo officials agreed to accept the CLS chapter’s constitution and to recognize the group as an official registered student organization. The university also agreed to allow all student organizations to include references and citations to religious texts, such as the Bible, in their constitutions and bylaws. The university further acknowledged that religious student organizations are not required to abide by non-discrimination policies that would force the groups to accept leaders and members who do not agree with their beliefs."
Last year, Ohio State University reached a similar settlement with CLS.
Monday, June 20, 2005
In Ohio, Stem Cell Issue Posed As Battle Between Religious Traditions
In budget debates over the last few weeks, Ohio's legislature has become embroiled in the stem-cell research issue. This weekend, the Conference Committee placed back into the budget bill language that will totally prohibit the use of so-called Third Frontier state funding for stem cell research. What is particularly interesting here, however, are the arguments used by a leading proponent of stem cell research, State Senator Eric Fingerhut. In addition to the usual countering of religious opposition with secular arguments, Fingerhut increasingly used religious arguments to advance the cause of such research. Quoted in the Warren Tribune-Chronicle last week, Fingerhut said:
"There is one religious perspective that is opposed to [stem cell research]. I respect that perspective, but it does not represent the religious view of a majority of Ohioans. My faith [Jewish] and many Protestant denominations all believe the same God that created embryos also created the skill of scientists to do research and commands us to try to save life through this research. There is an ethical and moral obligation to do the research, and I do not believe the state should take the position of one religious domination over another. God created stem cell research.''
By the way, the blog Stem Cellular has an archive page devoted solely to the issue in Ohio.
"There is one religious perspective that is opposed to [stem cell research]. I respect that perspective, but it does not represent the religious view of a majority of Ohioans. My faith [Jewish] and many Protestant denominations all believe the same God that created embryos also created the skill of scientists to do research and commands us to try to save life through this research. There is an ethical and moral obligation to do the research, and I do not believe the state should take the position of one religious domination over another. God created stem cell research.''
By the way, the blog Stem Cellular has an archive page devoted solely to the issue in Ohio.
AJC Supports Cert In Case On Religious Drug Rehabilitation Programs
Today the American Jewish Congress announced that it has filed an amicus brief with the U.S. Supreme Court supporting the granting of certiorari in the case of Hanas v. Michigan. At issue is whether the Michigan courts violated the First Amendment rights of a practicing Roman Catholic drug user by requiring him to attend a pervasively religious evangelical Protestant drug rehabilitation program in order to avoid jail or obtain an expungement of his criminal record. The original petition for certiorari was filed in January by the ACLU of Michigan.
House Bill Would Withhold Funds For Removal of 10 Commandments In Indiana
In January 2005, a federal district court ordered a 10 commandments monument removed from the Gibson County court house lawn in Princeton, Indiana. Now, in order to thwart that ruling, a provision has been placed in the Department of Justice's appropriation bill by a vote of the House of Representatives last Wednesday to prohibit the US Marshals Service from using any funds to carry out the court order. In reporting on this development today, the Mt. Carmel Republican Daily Register quotes Indiana Congressman John Hostettler, who had sponsored the of the legislation, as saying: "The Founders certainly never intended for federal court rulings that violate Americans' rights to be blindly funded and enforced by the other two branches. The bill we passed today employs the Legislature's power of the purse to check a federal court that's attempting to turn a constitutional right into a constitutional prohibition."
Bar Council In India Denies Nun Right To Practice Law
In Kerala, India, a nun has been denied enrollment as an advocate by the Bar Council on the ground that she is already engaged in another profession. Web India 123 reports today that Sister Teena Jose is going to court to contest the ruling, arguing that her position as a sister is a matter of religion, not a profession.
President At Natl. Hispanic Prayer Breakfast
Last Thursday, President Bush delivered remarks at the National Hispanic Prayer Breakfast, held at the Andrew Mellon Auditorium in Washington, D.C. This is the third "national" prayer breakfast the President has addressed this year. In May he spoke at the National Catholic Prayer Breakfast (see prior posting), and in February he addressed the annual National Prayer Breakfast. After the 2004 National Prayer Breakfast, the New Republic's Easterblogg raised some provocative questions about the institution of prayer breakfasts. Some of the criticisms may be cheap shots, like this description of the event: "hundreds of dignitaries and big-shots get together to proclaim their deep prayerful concern for the downtrodden while being served by impoverished Salvadorans and Mexicans". But as prayer breakfasts proliferate, the critique is worth re-reading.
Sunday, June 19, 2005
European Convention Seen As Requiring Recognition of Humanist Marriages
Scotland's Registrar General has interpreted the European Convention on Human Rights to require him to recognize Humanist wedding ceremonies. According to a report today in DeHavilland, previously Humanists needed to go through a valid civil ceremony (before their Humanist ceremony) in order to have their marriage legally recognized. The British Humanist Association has written to the Lord Chancellor urging the application of this ruling to England and Wales as well, or, alternatively, the introduction of new legislation to achieve this result in those jurisdictions. (Full text of letter.)
Conflict On Trial Tactics Among Intelligent Design Proponents
There appears to be dissension in the ranks of Intelligent Design proponents. According to the York Daily Record today, the Dover Pennsylvania Area school board, which is in federal court defending its decision to teach Intelligent Design, essentially fired three of its experts when they insisted on bringing their own lawyers to their depositions.
Saturday, June 18, 2005
Commentary: Church-State, Dean Rudenstine and Understanding "Religion"
Church-state issues often involve fundamentally different understandings of the nature of religious faith. That fact became clear yesterday when the New York Law Journal reported on recent remarks by Cardozo Law School Dean David Rudenstine. Rudenstine’s remarks have prompted a lively debate in the blogosphere. Dean of the law school at religiously-affiliated Yeshiva University, Rudenstine was reported to have said in a speech to pre-law advisors:
"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."
Mark Sargent, at Mirror of Justice blog, takes Rudenstine to task: “Many of us in the Catholic center and left are deeply frustrated by the religious right's cooptation of the religious voice in public life. We believe that the Bush/DeLay/Frist type of "Christian nationalism" is deeply antagonistic to the Catholic Tradition. I believe that it even verges on a kind of blasphemy, as it wraps the cross in the flag. But for Rudenstine to argue that there is no place for faith in public discourse … [leads to] impoverishing the quality of debate within law schools and marginalizing (or excluding) those students who seek to integrate faith, reason and public responsibility in their lives. This constitutes a kind of secularist fundamentalism that is as unsophisticated, un-nuanced and dogmatic as any religious fundamentalism. In my opinion his statements are also unworthy of the great Jewish ethical and social traditions that is Yeshiva's legacy….”
It seems to me that Rudenstine commits a more fundamental error. He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories. The first true act of religious faith expressed in Genesis is not the blind acceptance of facts for which we have no evidence. It is Abraham’s decision to act as lawyer for the inhabitants of Sodom. Abraham invokes his values to challenge God over God’s own decision to destroy the innocent along with the wicked (Genesis 18). The abhorrence of “guilt by association” is a basic religious value. An evidentiary hearing is irrelevant to whether that proposition is one that should be at the basis of a legal system. It is that foundational value, and not the historical accuracy of the story of Sodom and Gomorrah, that is the lesson of religious faith.
Some of the responses that take issue with Dean Rudenstine’s remarks reflect the same misunderstanding that Rudenstine himself holds. On Prawf Blog, entering law teacher Kaimi Wegner argues that Rudenstine is wrong, by saying: “I'm going to teach my classes, go to conferences, write my articles. Hopefully I'll do well. In any case, the question of whether or not I believe in God is going to have as much relevance in my classroom discussions as the question of whether I cheer for the Yankees or the Red Sox. I'm not going to ask my students "do you believe in God?" on exams. I'm going to ask about law, and I'm going to teach about law. And hopefully, my students will do the same. It's not my job to quibble about theology with my students -- I'm there to teach them law, and they should be prepared to learn on the same terms.”
I hope that values inspired by faith are relevant to Prof. Wegner’s classroom discussions. The codes of ethics that have guided lawyers over the years have always recognized that lawyers need not limit their advice to their clients to technical legal issues. Model Rules of Professional Conduct 2.1 states: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” The values of faith might well have impelled a lawyer in 1950 to urge his or her client to consider the moral implications of operating segregated facilities. In subsequent decades, faith might have impelled a lawyer to suggest to a client that a plant closing has social as well as economic implications. Faith could encourage a lawyer to suggest to a client that anti-pollution efforts need not be limited to the minimum required by law. And all of these might in the long run also have led to very good business decisions.
Of course, not everyone agrees with this conception of religious faith. And the challenge to courts is how to deal with claims that a religion requires one to believe facts that contradict scientific or historical evidence. The first step is for courts to understand the nature of the problem.
"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."
Mark Sargent, at Mirror of Justice blog, takes Rudenstine to task: “Many of us in the Catholic center and left are deeply frustrated by the religious right's cooptation of the religious voice in public life. We believe that the Bush/DeLay/Frist type of "Christian nationalism" is deeply antagonistic to the Catholic Tradition. I believe that it even verges on a kind of blasphemy, as it wraps the cross in the flag. But for Rudenstine to argue that there is no place for faith in public discourse … [leads to] impoverishing the quality of debate within law schools and marginalizing (or excluding) those students who seek to integrate faith, reason and public responsibility in their lives. This constitutes a kind of secularist fundamentalism that is as unsophisticated, un-nuanced and dogmatic as any religious fundamentalism. In my opinion his statements are also unworthy of the great Jewish ethical and social traditions that is Yeshiva's legacy….”
It seems to me that Rudenstine commits a more fundamental error. He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories. The first true act of religious faith expressed in Genesis is not the blind acceptance of facts for which we have no evidence. It is Abraham’s decision to act as lawyer for the inhabitants of Sodom. Abraham invokes his values to challenge God over God’s own decision to destroy the innocent along with the wicked (Genesis 18). The abhorrence of “guilt by association” is a basic religious value. An evidentiary hearing is irrelevant to whether that proposition is one that should be at the basis of a legal system. It is that foundational value, and not the historical accuracy of the story of Sodom and Gomorrah, that is the lesson of religious faith.
Some of the responses that take issue with Dean Rudenstine’s remarks reflect the same misunderstanding that Rudenstine himself holds. On Prawf Blog, entering law teacher Kaimi Wegner argues that Rudenstine is wrong, by saying: “I'm going to teach my classes, go to conferences, write my articles. Hopefully I'll do well. In any case, the question of whether or not I believe in God is going to have as much relevance in my classroom discussions as the question of whether I cheer for the Yankees or the Red Sox. I'm not going to ask my students "do you believe in God?" on exams. I'm going to ask about law, and I'm going to teach about law. And hopefully, my students will do the same. It's not my job to quibble about theology with my students -- I'm there to teach them law, and they should be prepared to learn on the same terms.”
I hope that values inspired by faith are relevant to Prof. Wegner’s classroom discussions. The codes of ethics that have guided lawyers over the years have always recognized that lawyers need not limit their advice to their clients to technical legal issues. Model Rules of Professional Conduct 2.1 states: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” The values of faith might well have impelled a lawyer in 1950 to urge his or her client to consider the moral implications of operating segregated facilities. In subsequent decades, faith might have impelled a lawyer to suggest to a client that a plant closing has social as well as economic implications. Faith could encourage a lawyer to suggest to a client that anti-pollution efforts need not be limited to the minimum required by law. And all of these might in the long run also have led to very good business decisions.
Of course, not everyone agrees with this conception of religious faith. And the challenge to courts is how to deal with claims that a religion requires one to believe facts that contradict scientific or historical evidence. The first step is for courts to understand the nature of the problem.
Evolution-Sticker Briefs Available Online
Briefs in the Cobb County, Georgia evolution disclaimer-sticker case pending in the 11th Circuit Court of Appeals are available from the website of the National Center for Science Education. (See prior related post.) (Thanks to Dispatches From the Culture Wars blog for the lead.)
Gull Lake Rejects Intelligent Design In Science; OKs It For Social Studies
Some time ago, I posted information on the attempts by two 7th-grade teachers in the Gull Lake, Michigan school district to bring intelligent design into the classroom over the objection of school administrators. The Thomas More Law Center took up the teachers’ cause. Now Ed Brayton at his blog, Dispatches From the Culture Wars, reports that earlier this week, the Gull Lake school board refused the teachers’ request that they be allowed to continue teaching intelligent design. In doing so, the board followed the nearly unanimous recommendation of a special committee that studied the issue, of district science teachers and of the District Curriculum Council. The Board, however, accepted the special committee’s recommendation that Intelligent Design could be appropriately taught in a properly-approved high school level elective course in social studies, humanities, political science or philosophy. (Thanks to Logos blog for the lead.)
Friday, June 17, 2005
Is Running A Homeless Shelter A Religious Activity?
In South Bend, Indiana, the group Catholic Worker is raising an interesting question about the scope of the Religious Land Use and Institutionalized Persons Act. Section 2 of that statute protects against substantial zoning burdens on "religious exercise" unless there is a compelling governmental interest. The South Bend Tribune reports today that the religious group claims RLUIPA protection for its the operation of three overnight homeless shelters. It argues that they involve its "religious exercise". Margaret Pfeil, co-founder of the group, says: "I've come to think that this configuration of events is interfering with our ability to practice our religion. If I as a private resident want to practice works of mercy by sharing my home with people who are homeless, I ought to be able to do that."
Viet Nam Allegedly Hospitalizes Clergyman For Religious Beliefs
In a story reminiscent of Soviet practices 50 years ago, Christian Today now reports from Viet Nam that Rev. Than Van Truong of the Baptist General Conference has been unjustifiably held in a mental hospital because of his religious beliefs since September 2004. His troubles apparently began after he wrote several articles on religion and sent Bibles as gifts to Viet Nam's top government officials.
Mozambique Official Emphasizes Prohibition on Proselytization In Schools
The government of Mozambique has strongly condemned the distribution to children in public schools of Christian pamphlets titled "Livro da Vida" (Book of Life). All Africa reports today that Zefanias Muhate, Permanent Secretary in the Education Ministry, emphasized that distribution of religious propaganda in public schools violates the country's separation of religion and state.
Protestant Church Repressed In Uzbekistan
Forum 18 reports today on more problems for unregistered Protestant groups in Uzbekistan: "Nail Kalinkin of the embattled Bethany Protestant Church in the capital Tashkent was sentenced to 15 days in prison on 10 June for 'illegally' teaching his faith, while his wife Marina was fined.... After the church's Sunday service was raided by police on 12 June six more – including the pastor... – face administrative charges of breaking the country's religion law by leading an unregistered religious community. The church – located in a city district where mosques are also banned - has repeatedly tried but failed to register."
Kim To Be Appointed Civil Rights Division Head
Yesterday President Bush announced his intention to nominate Wan J. Kim to be Assistant Attorney General for Civil Rights at the Department of Justice. Mr. Kim currently serves as Deputy Assistant Attorney General in the Civil Rights Division. That Division, among other duties, handles cases involving religious discrimination.
The South Korean paper Chosun Ilbo reports that Kim will be the third Korean-American to be appointed to a sub-cabinet position in the Bush administration. According to the paper, earlier in his career Kim served as a trial attorney in the Justice Department's Terrorism and Violent Crime section where he handled the case against Oklahoma City bomber Timothy McVeigh.
The South Korean paper Chosun Ilbo reports that Kim will be the third Korean-American to be appointed to a sub-cabinet position in the Bush administration. According to the paper, earlier in his career Kim served as a trial attorney in the Justice Department's Terrorism and Violent Crime section where he handled the case against Oklahoma City bomber Timothy McVeigh.
Las Vegas School Dress Code Upheld Over Claim of Right to Wear Religious Symbols
Last week, the U.S. District Court in Nevada rejected a First Amendment challenge to the dress code imposed by Clark County Nevada at 25 of its schools. The suit was brought by the ACLU of Nevada on behalf of a student who was suspended for wearing shirts with religious symbols on them. According to the Las Vegas Sun yesterday, Judge Roger Hunt held that students had sufficient alternative means of communication available to them. He also struck down a provision that permitted principals to exempt students from the dress code on the basis of religious belief. The ACLU says it will appeal the ruling.
UPDATE: The full opinion is now available-- Jacobs v. Clark County Sch. Dist., 2005 U.S. Dist. LEXIS 11766 (USDC DNV, 6/10/2005).
UPDATE: The full opinion is now available-- Jacobs v. Clark County Sch. Dist., 2005 U.S. Dist. LEXIS 11766 (USDC DNV, 6/10/2005).
FLDS Assets Placed Under Receiver; Paper Calls For Legalizing Polygamy
The Provo Daily Herald today reports that, at the request of Utah's Attorney General, a court has placed the assets of the Fundamentalist Church of Latter Day Saints (FLDS) under the control of an outside auditor. Attorney General Mark Shurtleff said this step was necessary to prevent FLDS leader Warren Jeffs from liquidating the assets of the religious sect. As described in earlier postings (1, 2, 3), FLDS is currently in the crosshairs of numerous enforcement officials because of its promotion of polygamy, as well as for alleged padding of public school payrolls and other financial irregularities.
In a surprising move, the Daily Herald suggests that the way to deal with the issue of polygamy is to legalize it, and instead concentrate on prosecuting related crimes such as domestic violence, child abuse, statutory rape and welfare fraud.
In a surprising move, the Daily Herald suggests that the way to deal with the issue of polygamy is to legalize it, and instead concentrate on prosecuting related crimes such as domestic violence, child abuse, statutory rape and welfare fraud.
Thursday, June 16, 2005
Controversy Over Religious Theme of County's "One Book" Program
"One Book" projects are reading programs designed to have everyone in a community read and discuss a single book. Usually they foster cooperation. But according to a report yesterday by the Associated Press, this year's Chester County, Pennsylvania program has stirred First Amendment controversy because of the religious themes of the featured book. The book chosen is Missing Heaven, which was self-published by Chester County author Caroline Wagner in 2003. The Freethought Society and the Anti-Defamation League have both questioned the appropriateness of the heavy focus on religion in the book and its accompanying discussion guide in a project being sponsored by a public library.
British Equality Bill Has Second Reading In House of Lords
Yesterday the Scotsman reported that in Britain's House of Lords, the second reading of the proposed Equality Bill (HL Bill 2) took place. The proposed law would create a single Commission for Equality and Human Rights to replace three separate commissions that now exist. It would also prohibit discrimination on the basis of religion or belief in the provision of goods, facilities, services or premises.
Prisoner's Claim For Access To Religious Books With Racist Themes Continues
In Borzych v. Frank, 2005 U.S. Dist. LEXIS 11486 (WD WI, 6/8/2005), the court allowed a prisoner's case alleging First Amendment infringements to proceed to trial, despite substantial doubts about the merits of the claim. Wisconsin prison officials denied plaintiff access to two allegedly religious books, "Temple of Wotan" and "Creed of Iron". In a case from a different correctional facility decided earlier this year, the same court found that the books present security risks by advocating the use of force to achieve racial purity and white supremacy. Nevertheless, plaintiff now may attempt to show that different considerations should apply in his maximum security facility where interaction between prisoners is limited.
Wednesday, June 15, 2005
Bush Welcomes Muslim Teens; Draws Christian Criticism
In the Rose Garden on Monday, President Bush spoke to a group of Muslim students from the Middle East who have been in the U.S. for 10 months in the Partnership for Learning Youth Exchange and Study Program. (transcript of remarks).
An article by Bill Wilson, Montana News Association Senior Analyst surprisingly takes the President to task for some of his remarks, including the following seemingly innocuous sentences: "You found out one of the great strengths of this country is the fact that people volunteer to make somebody else's life better. We all got hearts and care deeply about a neighbor in need, and there's a universal call in the Good Books throughout the world that says, love a neighbor like you'd like to be loved yourself."
Wilson says this is an example of Bush's toning down of "faith rhetoric" which leaves many "puzzled about what he actually does believe". Wilson complains, "The President omitted the source of a Biblical quote and degraded the Bible by including it with other 'good books'." He says, "The toning down of faith rhetoric, omitting Jesus Christ from Biblical quotes, and referencing God generically are not the fruits of a Christian walk."
An article by Bill Wilson, Montana News Association Senior Analyst surprisingly takes the President to task for some of his remarks, including the following seemingly innocuous sentences: "You found out one of the great strengths of this country is the fact that people volunteer to make somebody else's life better. We all got hearts and care deeply about a neighbor in need, and there's a universal call in the Good Books throughout the world that says, love a neighbor like you'd like to be loved yourself."
Wilson says this is an example of Bush's toning down of "faith rhetoric" which leaves many "puzzled about what he actually does believe". Wilson complains, "The President omitted the source of a Biblical quote and degraded the Bible by including it with other 'good books'." He says, "The toning down of faith rhetoric, omitting Jesus Christ from Biblical quotes, and referencing God generically are not the fruits of a Christian walk."
Parochial Schools in Milwaukee Thrive Because of Vouchers
Yesterday I posted a story about the importance of voucher money to Catholic parochial schools in Washington, DC. A similar story can be told about Catholic and Lutheran schools in Milwaukee, according to yesterday's Milwaukee Journal Sentinel. 60% of students in grades 1-8 in Catholic schools, and 66% in Lutheran schools, in Milwaukee are on vouchers. Voucher payments now total $60 million per year. In addition to keeping Catholic and Lutheran schools afloat, the program has encouraged the creation of at least 20 new schools connected to African-American churches. Three Muslim and one Jewish school are also part of the voucher program. Despite this, the overall number of students in private schools in Milwaukee continues to drop.
Wicca In the Military
What is it like to be a Wiccan in the military stationed in Iraq? This week's Up & Coming Magazine carries a story from Fayetteville, Arkansas on the mixed experiences of military personnel.
WI Bill Would Expand Procedures That Health Care Workers Can Refuse
The movement toward permitting conscientious objection by health care professionals is expanding. Currently Wisconsin law permits health care professionals to refuse on moral or religious grounds to participate in abortions and sterilizations. The Associated Press reported yesterday that Assembly, the lower house of the Wisconsin legislature, has passed Assembly Bill 207 that would expand the list of procedures that health care workers could refuse to perform. Newly added are procedures such as removal of feeding tubes, stem-cell research and transplants using fetal tissue. The bill would also protect health care workers who refuse to refer patients elsewhere for these procedures. Previously the governor has said that he will not sign a bill that would prevent patients from obtaining health care.
Tuesday, June 14, 2005
Vouchers Have Revived DC Parochial Schools
In Washington, DC, a federal voucher program permits some children to use federal grants toward tuition at private secular or religious schools. While the impact of vouchers on student achievement in DC is not yet clear, the Washington Post reported on Monday that the program has been very beneficial for Catholic parochial schools. Enrollment in Catholic elementary schools has increased for the first time in thirty years, as the voucher program has given the schools almost 600 new students, and total revenue of over $3.5 million.
Politician Promises Liberia Will Be "Christian Nation"
It is not just politicians in the U.S. who sometimes talk about making their country a “Christian nation”. In Liberia, an African nation with historical ties to the United States, one of the candidates for president has made similar statements. Charles Brumskine promises that if elected he will declare Liberia to be a Christian state. An editorial in last Sunday’s Liberian Times condemns this proposal as religious extremism.
NY Village Sued By US For Prohibiting Religious Boarding Schools
Last Friday, the U.S. Attorney's Office in Manhattan (press release) filed a religious discrimination suit against officials of Airmont, New York, according to an article in today's Rockland Journal News. According to the federal government, the village bans boarding schools while it permits other group residential facilities. This prevents Hasidic Jews from establishing yeshivot (religious schools). The law suit alleges violations of the federal Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Ten years ago, the village lost a similar suit that challenged its restrictions on home synagogues being established. Airmont has already entered a settlement with one yeshiva that will permit it to build a dormitory and married student housing, but the settlement is being challenged in state court by other Airmont residents.
Swaziland Near Final Adoption of Constitution With Religious Freedoms Included
Today the Associated Press reports that the legislature in the African kingdom of Swaziland has approved the country's first constitution. The king must still give his approval. Section 24 of the new Constitution provides for freedom of thought, conscience or religion, including the right to worship alone or with a community; the right to change one's religion; and the protection of religious educational institutions. However it does permit reasonable governmental regulation, including protection against unsolicited proselytizing. The Constitution declares that official religion of Swaziland is Christianity, but that this shall not prevent the existence or practice of other religions (Section 4).
Britain May Permit More Flexible Civil Wedding Rites
As the world became aware with the recent marriage of Prince Charles to Camilla Parker Bowles, British law extensively regulates civil marriage ceremonies. An article in Monday's Guardian reports that the government may soon relax existing legal restrictions on the content of civil marriage rites. Currently any readings or music in a civil ceremony must be secular in nature. The British Office for National Statistics, which regulates both civil and religious wedding ceremonies, is about to propose a change that will permit civil ceremonies to use readings or songs that "contain an incidental reference to a god or deity in an essentially non-religious context".
OR House Moves To Exempt Churches From Zoning Regulation
On Monday, the Oregon House of Representatives passed H.B. 3474, according to a report in Monday’s Oregon Live. The bill broadly exempts religious organizations from land use restrictions. It would, however, still permit site and design review of building plans. Critics say the bill goes too far.
Sunday, June 12, 2005
FLDS Head Indicted For Arranging Polygamous Marriage
In another legal step against the practice of polygamy advocated by the Fundamental Church of Jesus Christ of Latter Day Saints, the church's leader has been indicted in Arizona on charges that he arranged a marriage between a 16 year-old girl and a man who was already married. According to a report by the AP carried in today's New York Times, the Church's president was charged with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor even though he did not have sex with the teenager. The religious group, which split from mainstream Mormons when they renounced polygamy, believes that the practice is required to reach the highest place in heaven. (See prior related postings 1, 2).
Vatican Urges Boycott Of Italian Referendum on Assisted Reproduction
In Italy, a 2-day referendum is being held today and tomorrow on proposed amendments to Italy's restrictive law on assisted procreation. The BBC reports today that Italian bishops, with the backing of Pope Benedict XVI, are encouraging Catholics to boycott the vote on moral grounds. Under the referendum ground rules, at least 50% of Italy's voters must cast a ballot for the vote to be effective. Leading Catholic politicians, including Italy's President Carlo Azeglio Ciampi, have defied the bishops' call and have already voted. Current law in Italy prohibits sperm or egg donations. It bans scientific research on embryos and embryo screening for birth defects. It also permits only three embryos to be created each time for in vitro fertilization, and requires that all three be implanted at the same time.
UPDATE: The Vatican was successful in its boycott campaign. The referendum failed after only 26% of the electorate turned out, according to the June 14 New York Times.
UPDATE: The Vatican was successful in its boycott campaign. The referendum failed after only 26% of the electorate turned out, according to the June 14 New York Times.
Groups File Amicus Brief In GA Evolution-Sticker Case
On Friday three organizations that support separation of church and state filed an amicus brief (full text) in the federal 11th Circuit Court of Appeals case of Cobb County School District v. Selman. The suit involves a challenge to the placing of anti-evolution disclaimer stickers on school textbooks. Releases by the American Jewish Committee and Americans United for Separation of Church and State announced the filing. Also signing the brief was the Anti-Defamation League.
The federal district court had found in its opinion that the stickers were unconstitutional because they had the effect of endorsing the beliefs of Christian fundamentalists. The amici challenge a different finding that the lower court made—that the stickers did not have a “religious purpose”. The lower court held: “by presenting evolution in a manner that is not unnecessarily hostile, the Sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution.” The brief argues that placating constituents who have religious opposition to the teaching of evolution should be seen as a “religious” purpose.
The federal district court had found in its opinion that the stickers were unconstitutional because they had the effect of endorsing the beliefs of Christian fundamentalists. The amici challenge a different finding that the lower court made—that the stickers did not have a “religious purpose”. The lower court held: “by presenting evolution in a manner that is not unnecessarily hostile, the Sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution.” The brief argues that placating constituents who have religious opposition to the teaching of evolution should be seen as a “religious” purpose.
Indiana Papers Defend ICLU
After a suit earlier this month by the Indiana Civil Liberties Union (ICLU) challenging overtly sectarian Christian prayers in the Indiana legislature (see prior posting), some papers in Indiana have published background articles emphasizing that the ICLU is neither anti-religious nor anti-Christian. Today the Evansville Courrier & Press carries an article titled State-Sanctioned Prayer Differs from Individual Free Speech. It quotes a Presbyterian minister who says "Christians ought to be courteous enough to respect other people's faiths." Last week, the Indianapolis Star carried a long article titled ICLU Leaders Balance Freedom and Faith. It points out that the ICLU legal director has a quotation from Isaiah on his office wall and its executive director sings in his church's gospel choir.
Jordan Seeking to Revamp Islamic Curriculum
In Jordan, educators are reviewing the current Islamic curriculum used in schools, according to today's New York Times. Part of a broader review of Jordan's education system undertaken with UNESCO, officials are attempting to foster more moderate expressions of Islam. Critics claim that the changes are being driven by American pressure, a charge which American officials deny. The most controversial part of the reassessment is how to deal with teaching about jihad.
Saturday, June 11, 2005
Blog Discusses Religious Hiring By Recipients of Federal Funding
Over at Balkinization blog, Marty Lederman has posted an analysis of the ongoing dispute over government funding of social service organizations that hire on the basis of religious belief. It is an excellent source for links to arguments on all sides of the issue. A particular interest are his links to contrasting opinions of the Justice Department’s Office of Legal Counsel in the Clinton and Bush Administrations.
"Equitable Deviation" Applied To Permit Church Sale
Washington’s Supreme Court yesterday permitted a growing church to sell its current building and construct a new one nearby, despite a requirement in the original conveyance calling for its present location to remain for the “perpetual use” of the church. The majority in Niemann v. Vaughn Community Church held that the original conveyance created a charitable trust. Then they applied the doctrine of equitable deviation to amend the trust terms. Finding “that deviation is permissible when, due to circumstances unanticipated by the settlor, modification of an administrative requirement would advance the trust's purpose,” the Court permitted the Church to sell the building it had outgrown.
Justice Madsen, concurring in part and dissenting in part, argued that the majority’s approach unconstitutionally entangled the court with religious matters of the church. She argued that the property was not conveyed to the church subject to a trust. Instead the church should be seen as holding a fee simple interest that it was free to sell without restriction.
Justice Madsen, concurring in part and dissenting in part, argued that the majority’s approach unconstitutionally entangled the court with religious matters of the church. She argued that the property was not conveyed to the church subject to a trust. Instead the church should be seen as holding a fee simple interest that it was free to sell without restriction.
Friday, June 10, 2005
Kansas Board Committee Finishes Draft of New Science Standards
Last night, a 3-member subcommittee of the Kansas Board of Education completed a draft of new standards for the teaching of science in the state, according to a report in today's Topeka Capital-Journal. The standards question the theory of evolution, though as proposed they eliminate any specific mention of "intelligent design" theory. Specific examples of the criticism of evolution theory have been added to the standards. The full Board will consider the changes today. Opponents argue that many of the changes are misleading and would invite the teaching of supernatural or religious explanations in science courses.
Ministerial Exception Precludes Reverse Discrimination Suit Against Catholic Schools
Yesterday in Pardue v. Center City Consortium Schools of the Archdiocese of Washington, the District of Columbia Court of Appeals upheld the dismissal of a racial discrimination claim on First Amendment grounds. Plaintiff sued under the District of Columbia Human Rights Act alleging that the Center City Consortium of 8 inner-city Catholic elementary schools was intentionally replacing Caucasian principals with less-qualified African-American principals. Applying the "ministerial exception", the court held that the First Amendment bars the court from inquiring into the basis for a Church's action involving employees whose primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.
Thursday, June 09, 2005
Russia Considering Amendments To Religion Law
Forum 18 reports today that the Religion Committee of Russia's Parliament has begun to consider four important amendments to Russia's 1997 Religion Law. The amendments would give the government more discretion in evaluating registration applications by religious groups, and would require advance notice of religious activities planned outside of regular places of worship and certain other places. The proposals would also require any invitations to foreign religious workers to come from centralized religious organizations.
Britain Moves Ahead With Controversial Religious Hatred Proposal
The British government is moving ahead with its plans to enact a controversial Racial and Religious Hatred Bill according to a report in today's Times Online. The Home Office Minister today released the text of the bill which will prohibit incitement to religious hatred of any kind. Opponents claim that the proposed law will stifle free speech. Home Minister Goggins attempted to alleviate fears. He said: "It will not stop people ... from telling jokes. It does not stop people poking fun or causing offence. It is about stopping people from inciting hatred." The proposal is aimed primarily at protecting Muslims. Jews and Sikhs are already protected under existing legislation on inciting racial hatred. Others object that the bill will curb justifiable criticism of devil worshipers and cults. (See prior related posting.)
China Raids Unregistered House Churches
Boxun News reported today that Chinese officials are cracking down on unregistered Christian house churches. The churches attract university students, professors and young intellectuals. A church leader arrested on May 22 was charged with "using other means to instigate and disturb social stability".
Pryor Confirmation Expected Today Amid Concern Over His Positions on Religion
Today the Senate will vote on the confirmation of William H. Pryor, Jr. to the 11th Circuit Court of Appeals. As an article yesterday from the Knight Ridder Newspapers points out: “What distinguishes Pryor from Bush's other controversial judicial nominees is his place at the center of a political clash over the role of religion and faith in federal courts.” Liberal groups point to statements Pryor has made about restoring the place of Christianity in America. On the other hand, conservatives object to Pryor’s action as Alabama Attorney General in enforcing court orders against then-Chief Justice Roy Moore who attempted to place a large 10 commandments monument in the Alabama Supreme Court rotunda.
In fact Pryor already sits on the 11th Circuit temporarily under an unusual recess appointment that President Bush made last year. Since then, he has written at least one First Amendment religion opinion. In December 2004 in Benning v. Georgia, writing for a unanimous panel, he upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act against attacks under the Establishment Clause, the spending clause and the Tenth Amendment.
In fact Pryor already sits on the 11th Circuit temporarily under an unusual recess appointment that President Bush made last year. Since then, he has written at least one First Amendment religion opinion. In December 2004 in Benning v. Georgia, writing for a unanimous panel, he upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act against attacks under the Establishment Clause, the spending clause and the Tenth Amendment.
Nurse Claims Discrimination After Refusal To Dispense Morning-After Pill
The Associated Press today reports on another law suit over the right of medical personnel to refuse to dispense contraceptives. A former nurse has sued Eastern Illinois University claiming she was denied a promotion because she would not dispense morning-after pills. The nurse, represented by the American Center for Law and Justice, claims her religious freedom and equal protection rights and her rights under federal anti-discrimination laws were violated. The University said that its personnel decision was made for other reasons.
Saudis Release 7 Jailed Protestants
Saudi Arabia today released 7 Protestants (foreign workers from India) who had earlier been arrested for conducting prayer services in a private home. Most of the arrests took place on May 28, but one of the released religionists had been held since March. Daijiworld reports today that the jailed Christians signed a renunciation of religious practice as a condition of their release. Four of the individuals have been sent back to India.
Wednesday, June 08, 2005
Qatar Constitution To Be Promulgated Tomorrow
According to Al Jazeera, tomorrow the Persian Gulf nation of Qatar will for the first time in its history bring a Constitution into effect. The full text of the Constitution prohibits discrimination on grounds of sex, race, language or religion (Art. 35), and protects the freedom to practice religious rites for all persons "in accordance with the law and the requirements of the maintenance of public order and morality". (Art. 50). However the document (Art. 1) provides: "Qatar is an independent sovereign Arab State. Its religion is Islam and Shari'a law shall be a main source of its legislations."
WI Bill To Assure Access To Contraceptives Introduced
A previous posting reported on bills pending in the Wisconsin legislature to protect pharmacists who refuse on religious grounds to fill prescriptions for contraceptives (SB 155 .) Now those who support access to birth control have taken action. Today's Baraboo News Republic reports that Democratic lawmakers have just introduced a competing bill that would permit the state to punish any pharmacist who refuses to dispense legal forms of contraception.
New Article on Bepress
A new article of interest on church-state separation has been posted on Bepress:
Steven D. Smith, Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past (June 2005).
Steven D. Smith, Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past (June 2005).
Student Claims Religious Discrimination in College Grade
In a release yesterday, the American Center for Law and Justice explained a 12-page demand letter which it sent to California’s Victor Valley Community College on behalf of student Bethany Hauf. Hauf claims that her freedom of speech and religion were infringed by her English 101 instructor. The adjunct instructor, Michael Shefchik, approved as Hauf’s topic for a research paper, “Religion and Its Place Within Government”. However he stipulated that the topic must be treated objectively, and added: “I have one limiting factor – no mention of big “G” gods, i.e., one, true god argumentation.” Shefchik, an atheist, said that the reason for this limitation was that references to God could be offensive. Shefchik gave Ms. Hauf a low grade on her paper, claiming that she had written “off topic”. ACLJ argues that the grade was a result of unconstitutional viewpoint discrimination against Hauf’s religious beliefs. It demands that Hauf’s grade be corrected and that her instructor apologize for his actions.
Tuesday, June 07, 2005
Transcript of FL School Voucher Arguments Is Online
The transcript of today's oral argument before the Florida Supreme Court in Bush v. Holmes is available online. The case involves a constitutional challenge under the state and federal constitutions to Florida's state-wide Opportunity Scholarship Program. Under the program, funds are available to students attending religious schools, as well as secular institutions. (See prior posting. )
This Week's New Law Review Articles on Church-State Issues
This week's SmartCILP lists 3 new articles of interest on church-state issues:
Cece Cox, To Have and To Hold--or Not: The Influence of the Christian Right on Gay Marriage Laws in the Netherlands, Canada, and the United States, 14 Tulane Jour. of Law & Sexuality 1-50 (2005).
Steven K. Green, Locke v. Davey and the Limits to Neutrality Theory, 77 Temple L. Rev. 913-955 (2004).
C.M.A. Mc Cauliff, Distant Mirror or Preview of Our Future: Does Locke v. Davey Prevent American Use of Creative English Financing for Religious Schools?, 29 Vermont L. Rev. 365-406 (2005).
Cece Cox, To Have and To Hold--or Not: The Influence of the Christian Right on Gay Marriage Laws in the Netherlands, Canada, and the United States, 14 Tulane Jour. of Law & Sexuality 1-50 (2005).
Steven K. Green, Locke v. Davey and the Limits to Neutrality Theory, 77 Temple L. Rev. 913-955 (2004).
C.M.A. Mc Cauliff, Distant Mirror or Preview of Our Future: Does Locke v. Davey Prevent American Use of Creative English Financing for Religious Schools?, 29 Vermont L. Rev. 365-406 (2005).
South African Teacher Claims Religion Calls For Corporal Punishment
In South Africa, a teacher has taken a religious liberty claim to court. Cape Argus reports today on an elementary school teacher who claims that corporal punishment of children is ordained by God. Fired for improperly administering corporal punishment, the teacher has sued in an Equality Court claiming that the Education Department is discriminating against his living out his Christian faith.
UPDATE: The court has rejected the teacher's claim according to a June 13 story from the South African Press Assoc.
UPDATE: The court has rejected the teacher's claim according to a June 13 story from the South African Press Assoc.
Monday, June 06, 2005
Poll: 37% In US Think Clergy Should Influence Government Policy
The Associated Press reported today on a recent poll asking individuals in 10 countries whether or not religious leaders should try to influence government decisions. The United States had the highest number-- 37%-- who thought they should. France had the lowest, only 12% thinking they should. The full poll results are available online.
Follow-Up on Texas Bill-Signing At Religious School
The New York Times reports this morning on Texas Governor Rick Perry's signing of abortion and gay marriage legislation at an evangelical school. (See prior posting.) Held in the school's gymnasium, separate from the church sanctuary, the event included a number of speakers and a closing benediction by a Messianic Jewish clergyman. In his remarks, Gov. Perry said: "I'm confused where God is: He's everywhere. If we did this in a parking lot of Wal-Mart, God would be there."
Ohio Secretary of State In Ads for Religious Group
The blog Mainstream Baptist reported last week that Ohio Secretary of State (and gubenatorial hopeful) Kenneth Blackwell is being featured in 30-second radio ads endorsing the Ohio Restoration Project. The Project, led by fundamentalist Christians, is attempting to recruit 2000 "Patriot Pastors" around the state to work on behalf of specific issues and furnish voter guides to their church members. The ads featuring Blackwell will be promoting the "Ohio For Jesus" rally set for the Spring of 2006.
Sunday, June 05, 2005
Voucher Case To Be Before FL Supreme Court This Week
This week the Florida Supreme Court will hear arguments in a major case challenging Governor Jeb Bush's school voucher program, according to a report in today's South Florida Sun-Sentinel. The statewide program that permits vouchers to be used for religious schools as well as others has been in litigation for six years. The case involves a challenge to the vouchers both under the Florida constitution and the First Amendment to the U.S. Constitution.
Italian Justice Minister Claims Burka Is Illegal
The Australian Daily Telegraph reports today that Italy's Justice Minister has said that he will seek fines against Muslim women wearing Burkas. He argues that Italy's law that prohibits going around in public with one's face covered is violated by the practice of wearing these robes that cover women entirely. Opposition politicians have demanded his resignation over the remarks.
Chabad Successfully Challenges Application of Zoning Law
On June 3 the U.S. Eleventh Circuit Court of Appeals in Konikov v. Orange County ruled in favor of a Chabad Rabbi who had been charged with violating the Orange County Florida zoning code. The Rabbi, head of Chabad of South Orlando, was charged with operating a “religious organization” in a residential district without obtaining a special exception from the County Board of Zoning Adjustment.
While rejecting the Rabbi’s facial challenge to the zoning ordinance, the Court accepted his argument that, as applied, he was not being treated on an equal basis with non-religious organizations in violation of Sec. 2(b) of the Religious Land Use and Institutionalized Persons Act. Non-religious social groups could meet two to three times per week at a home without a special exception; but a permit was required when a religious organization did the same thing. The Court also accepted the Rabbi’s due process challenge to the zoning ordinance. It did not define “religious organization.” Also there was a risk of discriminatory enforcement because too much discretion was delegated to enforcement officials to determine how many meetings in a home would constitute a code violation.
While rejecting the Rabbi’s facial challenge to the zoning ordinance, the Court accepted his argument that, as applied, he was not being treated on an equal basis with non-religious organizations in violation of Sec. 2(b) of the Religious Land Use and Institutionalized Persons Act. Non-religious social groups could meet two to three times per week at a home without a special exception; but a permit was required when a religious organization did the same thing. The Court also accepted the Rabbi’s due process challenge to the zoning ordinance. It did not define “religious organization.” Also there was a risk of discriminatory enforcement because too much discretion was delegated to enforcement officials to determine how many meetings in a home would constitute a code violation.
2 New Prisoner Religion Cases From Wisconsin
Two prisoner religion case were decided by the federal district court for the Western District of Wisconsin on May 26:
In Meyer v. Farrey, a prisoner claimed that for 3 months he was unable to attend Native American religious activities because his name had been left off the prison’s religious services list. The Court held that if the omission was merely because of negligence, he has no First Amendment claim. It also dismissed three of the defendants from the suit, finding that there is absolute immunity for persons who merely make recommendations for the disposition of inmate complaints.
In Henderson v. Berge, the court rejected a prisoner’s complaint that the cable television package to which the prison subscribed included the Judeo-Christian oriented Sky Angel Trinity television channel, but not channels devoted to other religious beliefs. The court found no Establishment Clause violation.
In Meyer v. Farrey, a prisoner claimed that for 3 months he was unable to attend Native American religious activities because his name had been left off the prison’s religious services list. The Court held that if the omission was merely because of negligence, he has no First Amendment claim. It also dismissed three of the defendants from the suit, finding that there is absolute immunity for persons who merely make recommendations for the disposition of inmate complaints.
In Henderson v. Berge, the court rejected a prisoner’s complaint that the cable television package to which the prison subscribed included the Judeo-Christian oriented Sky Angel Trinity television channel, but not channels devoted to other religious beliefs. The court found no Establishment Clause violation.
Friday, June 03, 2005
Article on Religious Discrimination in Employment
A primer on the law of religious discrimination in employment appears in today's Mondaq's Article Service. The article is Employment Law Commentary-- May 2005, by Cynthia L. Gillette.
Bill Signing At TX Parochial School Questioned
Texas Governor Rick Perry has scheduled a controversial signing ceremony for a bill that requires minors to obtain parental consent (or a court order) before having an abortion (S.B. 419). The signing will take place at the parochial school connected to Fort Worth's Calvary Cathedral. He will also use the ceremony to sign an anti-gay marriage proposal (H.J.R. 6) that will be on the ballot in Texas in November. According to a report in today's Fort Worth Star-Telegram, Texas Democrats supported by Americans United for Separation of Church and State have objected, arguing that the signing is being used as a campaign event for the governor. This, they say, puts the tax exempt status of the church and the school into question.
Ministers Defy City Council's Invocation Guidelines
Escondido, California city council has guidelines for the invocations that are given by clergy at Council sessions. In compliance with a 2002 state appellate court decision, council requires that the prayers not reflect specific religious traditions, though they can make generic references to God. The San Diego Union-Tribune reports today that clergy have been intentionally defying the guidelines. The most recent offender, Pastor Vincent Xavier, said: "It would be impossible for me to project what I believe is a very truthful prayer without invoking the name of Jesus Christ."
Minister Fired For Being Gay May Proceed With CA Defamation Claim
Last week, a California appellate court, in a sharply divided decision, permitted the worship director of a church, who had been fired after discovery of his homosexuality, to proceed with his defamation and invasion of privacy claims against the church, its pastors and board of elders. At issue in the case, Gunn v. Mariners Church, Inc., was the application of the First-Amendment based “ministerial exemption” that shields the choice and dismissal of clergy from judicial review. In announcing the reasons for Gunn’s dismissal to the congregation, defendants not only said that Gunn had engaged in sinful conduct, but also that he had been asked 40 or 50 times if he were gay and that he had lied in denying it. Gunn claimed that his dismissal was motivated by homophobia, not by church doctrine.
The court held that the First Amendment precludes it from investigating whether or not church doctrine condemns homosexuality as a sin. However, the statement that Gunn had been questioned about his homosexuality and lied does not involve religious doctrine, and the pleadings did not show that disclosing this to the church congregation was part of defendants’ ecclesiastical duties.
Judge Sills filed a lengthy and colorful dissent, arguing that this is really a suit about the theology of the Mariners Church. Here is a sample of Judge Sills rhetoric:
“If the church and its elders contradict the complaint and aver that their religious beliefs and doctrine are "homophobic," plaintiff will publicly denounce his former ecclesiastical employers as a bunch of ignorant bible-thumping knuckle-dragging pitchfork toting rednecks, masquerading as a tolerant church. Or, if they take the bait and "admit" that their doctrine is not "homophobic," the plaintiff will be able to rake them over the scriptural coals by forcing them to distance themselves from various texts in Leviticus, or Romans or whatever, and force them to defend the merits of the fine nuances of their theology as he presses the point that, yes, they really are "homophobic." If the latter happens, further proceedings will turn this case into a theological circus that will make the Scopes Trial look like a boring treatise on insurance law.”
The court held that the First Amendment precludes it from investigating whether or not church doctrine condemns homosexuality as a sin. However, the statement that Gunn had been questioned about his homosexuality and lied does not involve religious doctrine, and the pleadings did not show that disclosing this to the church congregation was part of defendants’ ecclesiastical duties.
Judge Sills filed a lengthy and colorful dissent, arguing that this is really a suit about the theology of the Mariners Church. Here is a sample of Judge Sills rhetoric:
“If the church and its elders contradict the complaint and aver that their religious beliefs and doctrine are "homophobic," plaintiff will publicly denounce his former ecclesiastical employers as a bunch of ignorant bible-thumping knuckle-dragging pitchfork toting rednecks, masquerading as a tolerant church. Or, if they take the bait and "admit" that their doctrine is not "homophobic," the plaintiff will be able to rake them over the scriptural coals by forcing them to distance themselves from various texts in Leviticus, or Romans or whatever, and force them to defend the merits of the fine nuances of their theology as he presses the point that, yes, they really are "homophobic." If the latter happens, further proceedings will turn this case into a theological circus that will make the Scopes Trial look like a boring treatise on insurance law.”
Utah To Be Next Evolution Battleground
Utah promises to be the next battleground in the debate over teaching of alternatives to evolution. The Salt Lake Tribune today reports that State Senator Chris Buttars, supported by the Eagle Forum, will lead a fight in the next legislative session to have schools teach "Divine Design". According to Buttars: ''The divine design is a counter to the kids' belief that we all come from monkeys. Because we didn't. It shocks me that our schools are teaching evolution as fact."
Thursday, June 02, 2005
MA City Trying To Skirt Religious Discrimination in Housing Prohibitions
The Brookline, Massachusetts Tab today discusses the complex legal questions posed by arrangements that are being made to redevelop a Catholic Church site into affordable housing. Funds for the new housing are coming from the federal government through HUD, from the city of Brookline, and from private sources. The Catholic archdiocese wants to reserve 3 of the 50 housing units for Catholic parishioners of St. Mary's church.
Federal law, 42 USC Sec. 5309, prohibits religious discrimination in housing that is funded in whole or part with federal Community Development funds. In order to skirt that requirement, the diocese Planning Office for Urban Affairs will develop the 3 units with totally private funds. Government funds will be used for the other 47 units.
If no federal funds are used, there is an exemption under the broader federal Fair Housing Act, for a religious organization that limits the sale of housing to person of the same religion (42 USC Sec. 3607). HUD however is looking into whether occupants of the 3 privately developed units will be benefiting from federal funds spent for overall plumbing and common hallways.
Federal law, 42 USC Sec. 5309, prohibits religious discrimination in housing that is funded in whole or part with federal Community Development funds. In order to skirt that requirement, the diocese Planning Office for Urban Affairs will develop the 3 units with totally private funds. Government funds will be used for the other 47 units.
If no federal funds are used, there is an exemption under the broader federal Fair Housing Act, for a religious organization that limits the sale of housing to person of the same religion (42 USC Sec. 3607). HUD however is looking into whether occupants of the 3 privately developed units will be benefiting from federal funds spent for overall plumbing and common hallways.
First Amendment Bars Damage Claim From Counseling Disaster
In Rose v. Washington Conf. of Seventh Day Adventists, decided Tuesday by a Washington state Court of Appeals, damage claims against a Pastor and the Seventh Day Adventist Church were dismissed on First Amendment grounds. The suit grew out of a lurid series of events. Gerald Rose’s wife, Theresa, who suffered serious mental problems, was in spiritual counseling for four years with Pastor Terry Campbell. Apparently the Pastor demonized Gerald and convinced Theresa that their marriage was irretrievably damaged. This led to Theresa hiring her daughter’s boyfriend to murder Gerald. In the end, the plan to kill Gerald failed, and Theresa’s daughter ended up murdered.
After Theresa was convicted criminally, Gerald sued the pastor and the Church. On appeal, the Court faced two issues. (1) Did Pastor Campbell breach a fiduciary duty to warn Gerald of a foreseeable danger that Theresa would kill him? (2) Was the Church liable for negligently supervising and retaining Campbell?
The Court found that personal counseling between a pastor and parishioners is a central tenet of the Seventh-Day Adventist faith. Physical and mental illness are seen as a by-product of sin. The Court held that since it would have to choose between competing interpretations of Church doctrine to determine if Campbell’s counseling gave rise to a special relationship and to a duty to warn, that inquiry would violate the First Amendment. Similarly, the claim against the Church for negligent supervision would require the interpretation of religious doctrine. It could not be determined through the use of neutral principles. So it too was barred by the First Amendment.
After Theresa was convicted criminally, Gerald sued the pastor and the Church. On appeal, the Court faced two issues. (1) Did Pastor Campbell breach a fiduciary duty to warn Gerald of a foreseeable danger that Theresa would kill him? (2) Was the Church liable for negligently supervising and retaining Campbell?
The Court found that personal counseling between a pastor and parishioners is a central tenet of the Seventh-Day Adventist faith. Physical and mental illness are seen as a by-product of sin. The Court held that since it would have to choose between competing interpretations of Church doctrine to determine if Campbell’s counseling gave rise to a special relationship and to a duty to warn, that inquiry would violate the First Amendment. Similarly, the claim against the Church for negligent supervision would require the interpretation of religious doctrine. It could not be determined through the use of neutral principles. So it too was barred by the First Amendment.
Subscribe to:
Posts (Atom)