High School Cheerleaders Cannot Carry Religious Banners On Field

Yesterday's Chattanooga (TN) Times Free Press reports on a new variation of the dispute over mixing of religion and high school football. In Fort Oglethorpe, Georgia, since 2003 Fort Oglethorpe High School cheerleaders have displayed religious banners that the football players crash through at the beginning of games. The banners urge fans and players to "commit to the Lord" and "take courage and do it." After a complaint from a local resident, the superintendent [corrected] prohibited the banners, agreeing that the display of Biblical verses on the football field violates the 1st Amendment. This led to a community rally in support of the cheerleaders and strong statements supporting them from Fort Oglethorpe Mayor Ronnie Cobb who said: "If it's offensive to anyone, let them go watch another football game. Nobody's forced to come there and nobody’s forced to read the signs." Meanwhile, an area outside the stadium has been set aside so the signs can be displayed there. Several of the players, upset by the ruling, protested by holding a team prayer after they took the field last week.

An attorney for the Christian Law Association has been advising those upset with the school's ruling on at least two alternative routes, according to Chattanoogan.com. Barbara J. Weller says that while the students may not continue to put Bible verses on the banners they have been making officially for the games, they can make other banners with Bible verses on them, as long as they make the banners at home and bring them to the games on their own, without the school's approval, permission or participation. She also says that the school should not be able to prohibit banners that merely used the words, "Power, Love, Self Discipline" without reference to the Bible verse that includes them.

UPDATE: At an Oct. 13 meeting, the Catoosa County School Board upheld the superintendent's ruling. (ABP).

Supporters of Sectarian Prayer Threaten Billboards Exposing Council Votes

Around the country, the Freedom from Religion Foundation has been challenging city councils that open their meetings with sectarian prayers, and city councils have been forced to consider whether to change their policies. Few of the debates have been as contentious as that in Lodi, California (see prior posting) where a vote will be taken tonight. Yesterday's Lodi News-Sentinel reports that in advance of the vote, Council has received a letter from Chaplain Gordon James Klingenschmitt, the founder of the Colorado-based "Pray In Jesus Name Project," threatening that if council eliminates invocations or requires them to be non-sectarian, he will purchase billboards on Interstate 5 and Highway 99 for one year listing each council member as "Against Jesus" or "For Jesus." Councilman Bob Johnson described as Klingenschmitt's threat as "blackmail" and "petty thuggery."

Court Rejects Copyright Suit Claiming Infringement In Use of Judas Iscariot Trial

In Porto v. Guirgis, (SDNY, Sept. 28, 2009), a New York federal district court rejected a claim by author Michael Porto (also known as "Guy Michaels") that Guirgis' play "The Last Days of Judas Iscariot" violates the copyrights for Porto's novel "Judas on Appeal." Both works involved a fictional trial of Judas Iscariot in which the issue is whether Judas should be admitted to paradise. The novel has the trial before a fictional World Court of Religion held in the Federal Courthouse in New York's Foley Square, while the play has the trial before a fictional judge in Purgatory. The court said:

The trials depicted in the two works are dramatically different in substance, setting, plot, theme, language, and the overall thrust and feel of the works. Stripped of unprotectible elements—such as the biblical characters and biblical story—the works are not substantially similar.

Courthouse News Service reported on the decision yesterday.

German Court Says School Must Provide Prayer Space For Muslim Student

In the first ruling of its kind in Germany, the Berlin administrative court has ruled that Diesterweg High School in Berlin-Wedding must allow a Muslim student known in the litigation as Yunus M. to pray 10 minutes each day in a separate classroom. Deutsche Welle reported yesterday that freedom of religion guarantees required this accommodation which the court saw as not disturbing school operations. Berlin's Education Senate says it fears that the ruling will lead to the creation of "islands of belief" in the schools, and the chairman of Berlin-Wedding's parents' board said she fears that the ruling will further lessen Muslim students' willingness to integrate into the school.

New York Appellate Court Voids Church Election of New Pastor and Trustees

Trustees of Gallilee Pentecostal Church, Inc. v. Williams, (NY App. Div., Sept. 22, 2009), is a case in which plaintiffs sought a declaration as to who are the legal trustees and members of the Gallilee Pentecostal Church in Poughkeepsie, New York. In 1983 when the Church was formed, its articles named six trustees. Despite provisions in the articles and in the New York Religious Corporations Law calling for annual elections, no election of trustees was ever held. Now only two of the original six trustees are alive. In 2006, at the instigation of Frances J. Williams, some 30 people, allegedly members of the church, were notified of a meeting. 17 showed up and purported to elect Williams as pastor and as a trustee, and also purported to elect Barbara Williams-Mahmood as another trustee.

Plaintiffs, who objected to Williams as pastor, sued challenging the validity of the 2006 meeting. The appellate court agreed with their challenge, finding that defendants failed to prove who were church members entitled to vote at the meeting. The court declared that the two remaining original trustees were the only valid trustees. It went on to enjoin Williams and his supporters from exercising any authority or control over church property. [Thanks to Y.Y. Landa for the lead.]

Court Rejects Interlocutory Appeal In Minnesota Charter School Case

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 88425 (D MN. Sept. 24, 2009), a Minnesota federal district court denied a motion by the sponsor of a controversial charter school to certify an interlocutory appeal of a decision handed down by the court in July. In that decision (see prior posting) the court held that the ACLU had taxpayer standing to bring an Establishment Clause challenge to funding of the school by the state and that plaintiff had sufficiently pleaded the elements of a "state action" by the sponsor, Islamic Relief. The ACLU charges that the charter school promotes Islam. In denying the motion, the court concluded that there is no substantial ground for difference of opinion on the issue of taxpayer standing and that questions as to state action are primarily factual ones that do raise appropriate issues for appeal.

British Jewish Schools Implement New Admissions Criteria Ordered By Court

Today's London Guardian reports on changes in admission policy made by Britain's publicly-funded Jewish schools after a Court of Appeal decision in June held that using the traditional Orthodox Jewish definition of who is Jewish amounts to impermissible racial discrimination instead of a permissible religious criterion. (See prior posting.) The article focuses particularly on the Jewish Free School, which it describes as "vast, in size and in reputation", and which was the school involved in the lawsuit. Now Jewish schools have introduced a "point system" to measure religious practice. Attending synagogue twice a month in addition to festivals earns a child three points. Formal Jewish education is worth one point. Voluntary work in a charity is worth one point. JFS requires three points to be considered a priority applicant. Meanwhile synagogues have seen a spike in attendance as families rush to earn points before the admissions deadline passes. The shift to assessing religious practice is consistent with criteria used by publicly-funded Christian and Muslim schools in Britain. The case is on appeal to Britain's new Supreme Court. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

Christian Group Creates "Adopt a Liberal" Initiative

Liberty Counsel (a Christian advocacy group) has begun a "prayer in action" initiative it calls "Adopt a Liberal." It is hoping to change the minds of political leaders it sees as "misguided". The initiative calls on participants to pick one of the eleven liberals on Liberty Counsel's list, or to choose some other liberal leader, and then:

Pray earnestly and intensely for them! Pray that the Lord would move upon them and cause them to be the kind of leaders who will encourage others to lead "a quiet and peaceable life in all godliness and reverence." We encourage you to seek the Lord's guidance on how to pray for your liberal(s), always allowing Him to temper your prayer with His love and mercy....

Please pray daily for the liberal(s) of your choice, so each can become a good influence on our Nation's culture. Prayer is powerful! It allows God to change the minds of those for whom we are praying. In fact, we fully expect that many of our adoptees will "graduate" from this prayer program with vivid testimonies of God having changed their lives and worldviews!

Woman's Caning Sentence Upheld On Appeal In Malaysia

In Malaysia, apparently a controversial sentence of a Muslim woman for drinking alcohol is back on track. Last month Kartika Sari Dewi Shukarno became the first woman to be sentenced under the country's Islamic law to caning for drinking alcohol. When she defiantly asked that her punishment be carried out in public, the sentence was delayed because of Ramadan and to allow for a government appeal after objections from activists. (See prior posting.) Now, according to AP, the chief Shariah judge of Pahang state has ruled that the lower court acted in accordance with law. It is now up to the Pahang Islamic Religious Department to carry out the largely symbolic caning.

Victoria Government Agrees To Broad Religious Exemptions In Discrimination Law

In the Australian state of Victoria, the attorney general has pre-empted a parliamentary committee and has announced an agreement with religious groups (including churches, schools, hospitals and welfare services) that will modify current law but still grant them broad exemptions from anti-discrimination prohibitions. According to The Age yesterday, the compromise permits religious groups to discriminate in employment and the furnishing of services on the basis of sex, sexuality, marital and parental status and gender identity, so long as they demonstrate how the discrimination relates to their religious doctrines. Thus conservative religious schools can refuse to hire single mothers or gays even for non-teaching positions, and Islamic groups can refuse to employ Christians. However religious groups will be barred from discriminating on the basis of race, disability, age, physical features, political beliefs or activity, or breastfeeding.

2010 National Religious Moot Court Announced

George Washington University Law School has announced the 2010 National Religious Freedom Moot Court to be held February 5-6, 2010 in Washington, DC. This year's problem involves free exercise issues in decisions of a local police department to regulate the activities and the dress of a police officer. The competition is open to students from ABA-accredited law schools. Registration extends until November 6, 2009.

Recent Articles and Books of Interest

From SSRN:

• Jeffrey M. Lipshaw, Can There Be a Religion of Reason? A Response to Leiter's Circular Conception of Religious Belief, (Suffolk University Law School Research Paper Series, Sept. 27, 2009).
• Mostapha Benhenda, Liberal Democracy and Political Islam: The Search for Common Ground, Politics, Philosophy & Economics, Forthcoming).
• Umar Aimhanosi Oseni, Towards the Effective Legal Regulation of Waqf in Nigeria: Problems and Prospects, (September 25, 2009).

From SmartCILP:

• Stephen M. Johnson, Is Religion the Environment's Last Best Hope? Targeting Change in Individual Behavior Through Personal Norm Activation, 24 Journal of Environmental Law & Litigation 119-164 (2009).
• Chad G. Marzen, The Role of Custom in Canon, Jewish, and Islamic Law: Supplemented, Superseded, or Supplanted by Written Law?, 35 Ohio Northern University Law Review 813-827 (2009).
• Anne Orford, Jurisdiction Without Territory: From the Holy Roman Empire to the Responsibility to Protect, 30 Michigan Journal of International Law 981-1015 (2009).
• Nicholas C. Rigano, Fraudulent Conveyance Law: Destroying Free Exercise Rights at a Church Near You, 17 American Bankruptcy Institute Law Review 165-187 (2009).

Recent Books:

• Anne Marie Lofaso, Religion in the Public Schools: A Road Map for Avoiding Lawsuits and Respecting Parents' Legal Rights (Americans United for Separation of Church & State, 2009), reviewed on AU's website. [Link is to full text of book.]
• David Nash (ed.), Blasphemy in Britain and America 1800-1930, (4 vols.) (Pickering & Chatto Publishers, forthcoming April 2010).

China Issues New Report on Its Ethnic Policy-- Claims Religious Freedom

The Chinese government today issued a White Paper titled China's Ethnic Policy and Common Prosperity and Development of All Ethnic Groups. The Xinhua news agency carries a series of reports on the White Paper. Summarizing the report's findings on religious freedom, Xinhua says:

Freedom of religious belief in China means that every citizen has the freedom to believe or not to believe in any religion," said the white paper issued by the Information office of the State Council.... [A]ll normal religious activities, including those of ethnic minorities, are protected by law.... Venues for religious activities are found all over China, basically satisfying the needs of religious believers.... [T]he Chinese government also helps religious groups build seminaries to train clergymen of ethnic minorities, subsidizes the repairs of some religious venues in minority areas, and gives allowances to poor religious believers of ethnic minorities, according to the white paper.

The White Paper comes in the wake of a letter earlier this month (full text) from two members of the U.S. House of Representatives to Jon Huntsman, the new U.S. ambassador to China, raising concerns about reported plans by China to take new steps against "house churches" leading up to the Oct. 1 marking of the 60th anniversary of Communist Party rule in China. (Christian Post, Sept. 10.)

Illinois Supreme Court Says Limitiations Extension Cannot Be Applied Retroactively

In Doe v. Diocese of Dallas, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court refused to apply retroactively a 2003 amendment to Illinois law extending the statute of limitations in civil actions alleging child sexual abuse. The suit was filed by plaintiff who had been abused by a Catholic priest when he was 14 years old. However under prior law, the statute of limitations had run on his claim before the 2003 amendments took effect. The court concluded that even though the legislature had intended for the amended statute of limitations to apply retroactively: "once a claim is time barred, it cannot be revived through subsequent legislative action without offending the due process protections of our state's constitution." Friday's Belleville (IL) News-Democrat reported on the decision.

Recent Prisoner Free Exercise Cases

In May v. Donneli, 2009 U.S. Dist. LEXIS 85495 (ND NY, Aug. 25, 2009), a New York federal magistrate judge held that merely a loss of a few pounds was insufficient physical injury to justify a claim for compensatory damages under the Prison Litigation Reform Act that precludes compensatory damages for emotional injury unaccompanied by physical injury. In the case, a prisoner asserted that for seven days of Ramadan he was precluded from breaking the fast with blessed food. The court also held that a damage claim under the NY Corrections Law had to be brought in the state court of claims.

In Davis v. Hightower, 2009 U.S. Dist. LEXIS 85505 (ND FL, July 13, 2009), a federal magistrate judge recommended rejection of a Wiccan inmate's claim that his free exercise rights were infringed when authorities confiscated 9 "religious healing stones" from his property which he used to help heal his peptic ulcer.

Mauwee v. Donat, 2009 U.S. Dist. LEXIS 86148 (D NV, Sept. 18, 2009), involved claims that prison officials desecrated the prison's sweat lodge area by allowing non-Indians to use it. A Nevada federal district court concluded that damage claims are not permitted under RLUIPA and that plaintiffs' claim for equitable relief was precluded by qualified immunity. It also concluded that objections to changes in sweat lodge procedures were now moot since those changes had been rescinded. The magistrate's recommended findings in the case are at 2009 U.S. Dist. LEXIS 86141 (May 28, 2009).

In Kinney v. Curtin, 2009 U.S. Dist. LEXIS 86225 (WD MI, July 29, 2009), and in Thomas v. Bergh, 2009 U.S. Dist. LEXIS 86893 (WD MI, Aug. 21, 2009), a Michigan federal magistrate judge recommended that the court uphold decisions to deny plaintiffs participation in their prison's kosher food program because plaintiff had not shown that his beliefs were sincerely held.

In Parks v. Smith, 2009 U.S. Dist. LEXIS 87147 (ND NY, Sept. 23, 2009), a New York federal district court accepted most of the magistrate's recommendations (2009 U.S. Dist. LEXIS 87210, Aug. 17, 2009) allowing a Jehovah's Witness inmate to move ahead with his claim that authorities violated his free exercise rights and his rights under RLUIPA when they disciplined him for attempting to mail a photograph of himself in a meditation pose to a company for use in a personal ad. Prison authorities claim that the pose is in fact a gang signal. The court rejected the magistrate's holding that plaintiff's free exercise and retaliation claims were duplicative. He might be able to show retaliation based on religion even if he did not succeed in his claim that his rights were infringed when authorities classified his meditation pose as a gang signal.

In Strope v. McKune, 2009 U.S. Dist. LEXIS 86886 (D KS, Sept. 22, 2009) and Strope v. Cummings, 2009 U.S. Dist. LEXIS 86885 (D KS, Sept. 22, 2009), a Kansas federal district court rejected claims that Assembly of Yahweh inmates were not given adequate time for worship. It also rejected claims that certain foods served to those on the kosher diet were routinely spoiled, and that other foods were not included. UPDATE: The 10th Circuit affirmed (June 11, 2010).

In Shepard v. Peryam, 2009 U.S. Dist. LEXIS 87189 (SD FL, Aug. 20, 2009), a Florida federal magistrate judge recommended that the court reject claims by a Muslim pre-trial detainee that he was denied religious services, prayer beads, a prayer rug, a Kufi (prayer cap), and a Kosher diet.

In Floyd v. Leslie, 2009 U.S. Dist. LEXIS 87758 (ND IN, Sept. 23, 2009), and Indiana federal district court allowed an inmate to move ahead with his complaint that a prison officer denied him access to Satanist religious material that belonged to him, but the court dismissed plaintiff's claim against the prison's chaplain.

In Jenkins v. Vail, 2009 U.S. Dist. LEXIS 87730 (ED WA, Aug. 31, 2009), a federal district court (rejecting a magistrate's recommendations, 2009 U.S. Dist. LEXIS 87769, July 22, 2009) refused to grant a preliminary injunction to a Muslim inmate who would not participate in work or educational programming on the ground that his sincerely held religious beliefs prevent him from supporting a non-Islamic government.

Moorish American Corrections Officers Can Move Ahead With Discrimination Allegations

Bey v. City of New York, 2009 U.S. Dist. LEXIS 87793 (SDNY, Sept. 9, 2009), is a lawsuit brought by a group of former New York City correction officers who were members of the Moorish American faith which teaches that Moors are exempt from taxation. They were terminated from their positions after hearings at which it was found that they had submitted false documents claiming to be tax exempt. They then sued, arguing that others of different faiths who had submitted false tax forms received less severe discipline. The court allowed certain of the plaintiffs to move ahead with equal protection and Establishment Clause claims, finding that "there remains a triable issue of fact as to whether Defendants' explanation for Plaintiffs' harsher treatment - that they persisted in their assertion of tax exempt status and failed to take affirmative steps to repay their taxes - is pretextual and whether, in fact, the Moors were singled out for harsher treatment based on their religion."

Guardian Ad Litem Has Immunity As To Comments On Mother's Religious Views

In Wood v. Epley, 2009 U.S. Dist. LEXIS 87490 (SD OH, Sept. 9, 2009), an Ohio federal magistrate judge recommended dismissing as frivolous a lawsuit brought by Kyra Wood seeking $40 million in damages from an attorney who was appointed guardian ad litem by a state juvenile court to represent the interests of her daughter. Wood alleged that she was deprived of her free exercise rights because of unflattering comments the guardian ad litem made to the court about her religious expression. The court said that the guardian ad litem has absolute immunity from liability growing out of his testimony as to what he believes are in the best interest of the Wood's daughter.

Christian Group Complains About Ganesh Statue At Calgary Zoo

In Canada, the publicly funded Calgary Zoo some two years ago put up a statue of the Hindu deity Ganesh-- a figure with an elephant head-- near the zoo's elephant display. An anonymous donor supplied funds for the statue in memory of her late father who worked and travelled extensively in Asia. According to yesterday's Calgary Herald, Concerned Christians Canada wrote the zoo this week complaining about the statue. The letter (full text) said: "The zoo is not a place of religious indoctrination, it is supposed to be a safe family environment free of religious icons and selective religious partiality." A zoo spokesman, however, says that the statue is a cultural symbol that shows the tie between the elephants and Asian culture. [Thanks to Scott Mange for the lead.]

Christian Reformed Church Gets Title To Property Over Breakaway Congregation

In Lamont Community Church v. Lamont Christian Reformed Church, (MI Ct. App., Sept. 22, 2009), a Michigan appellate court held that the Christian Reformed Church in North America is a hierarchical denomination, and therefore that civil courts are required to honor the determinations made by the denomination's parent body in resolving a property dispute between it and a break away congregation. Here the denomination, through its Zeeland Classis, determined that the congregation had no authority to transfer congregational property to a new entity without the consent of its regional Classis. The congregation argued that the denomination's rule governing the procedure to be used to determine ownership of property when a congregation disaffiliates did not take effect until after it had transferred its property. The court, however, said it was bound by the denomination’s determination that the rule took effect before the transfer at issue. [Thanks to Brian D. Wassom for the lead.]

Hasidic Congregation Gets Reversal of Damage Award, But Loses On Other Issues

This week, a New York appellate court handed down a decision in a dispute between two neighboring Orthodox Jewish congregations in Kiryas Joel (NY), a town populated primarily by members of the Satmar Hasidic community. A bit or reading between the lines is necessary to understand the disputes that were ruled on by the court in Bais Yoel Ohel Feige v. Congregation Yetev Lev D'Satmar of Kiryas Joel, (NY App. Div., Sept. 22, 2009). (It is not clear whether this case is part of a larger leadership battle within the Satmar movement.)

It appears that originally the 3,000-member Congregation Yetev Lev ("CYL") owned a synagogue building, surrounding parking lots and a nearby residence that was used as living quarters by its rabbi. In some fashion, Bais Yoel Ohel Feige ("BYOF") took ownership of the residence and began to use it as a synagogue. It also filed a suit under Art. 15 of New York's Real Property Actions & Proceedings Law to confirm its ownership of the premises. CYL brought several counterclaims. One asserted that BYOF's use of the property violated the town's zoning code. The appellate court agreed and upheld a trial court's injunction because the zoning code, as amended in 2007, requires a site plan review by the Village Zoning Board for operating a place of worship in a residence.

The appellate court however reversed the trial court's award of nearly $745,000 in damages on another counterclaim by CYL which complained that individuals attending services at BYOF had continuously used CYL's parking area. The appellate court concluded that there was no evidence that BYOF had instructed its members where to park and that, in any event, CYL had not put up signs attempting to restrict who could use its lots. Also testimony as to how many BYOF members parked there was speculative. Finally the appellate court held that CYL retained an implied easement to access the basement and roof of the residence area to install and repair water, sewer and utility lines and HVAC equipment that apparently served CYL's building. [Thanks to Y.Y. Landa for the lead.]

Religious Groups Active On Several Issues At G-20

Religious groups have been active at the G-20 Summit in Pittsburgh. Yesterday 30 religious leaders from numerous faiths met with U.S. deputy national security adviser Michael Froman urging action on problems faced by the world's poorest people. (Pittsburgh Post-Gazette.) Also yesterday morning more than 100 people gathered in one area of Pittsburgh to call for China to allow freedom to practice Falun Gong, while in another area of the city 15 Burmese monks and about 40 supporters protested human rights conditions in Myanmar. (Beliefnet News.) [Thanks to Insitute on Religion & Public Policy for the leads.]

4th Circuit Says Westboro's "Utterly Distasteful" Picketing Is Protected By 1st Amendment

In Snyder v. Phelps, (4th Cir., Sept. 24, 2009), the U.S. 4th Circuit Court of Appeals agreed with the Westboro Baptist Church and its leaders that a $5 million judgment against them growing out of their picketing of the funeral of Iraq veteran Matthew Snyder violated their free speech rights. Westboro Baptist Church members have gained notoriety for their picketing of veterans' funerals carrying signs attacking America's acceptance of gays. Here Snyder's father claimed that the picketing and a related Internet posting amounted to an invasion of privacy by intrusion upon seclusion, intentional infliction of emotional distress, and civil conspiracy. The majority held that defendants' picket signs, while "utterly distasteful" nevertheless involve matters of public concern including the issue of homosexuals in the military, the sex-abuse scandal within the Catholic Church, and the political and moral conduct of the United States and its citizens.

The court held that additionally no reasonable reader could interpret any of the signs, or the Internet posting, as asserting actual and objectively verifiable facts about Snyder or his son. They are merely "imaginative and hyperbolic rhetoric intended to spark debate about issues with which the Defendants are concerned." Judge Shedd, concurring in the judgment, would have avoided the constitutional issue by holding that Snyder failed to introduce sufficient evidence at trial to support the jury verdict in his favor.

Today's Baltimore Sun reports on the decision and reactions to it. Meanwhile this week Westboro members began a campaign to picket synagogues in Brooklyn, New York just before Yom Kippur. Westboro spokesperson Shirley Phelps-Roper told the The Brooklyn Paper that their efforts could be seen as an "obey your God rally." Also, last week, just before Rosh Hashanah, Westboro picketers turned up outside the University of Oklahoma's Hillel Foundation. According to the AP, Phelps-Roper said the church stopped there as part of a "love campaign" to critize Jews for "killing Christ."

Capitol Visitor Center Hosts Premiere of Film On Religion In America

Last December the U.S. Capitol Visitor Center opened amidst protests from conservatives (including former House Speaker Newt Gingrich) that it failed to appropriately honor America's religious heritage. (See prior posting.) This led to Congressional resolutions directing the Architect of the Capitol to engrave the motto "In God We Trust" on a large pillar in the Visitor Center, and a lawsuit being filed challenging that directive. (See prior posting.) According to Politcio, despite the lawsuit, work on the engraving began this week and tonight at the Visitor Center former Speaker Gingrich hosts the premiere of his documentary — Rediscovering God in America II: Our Heritage. The film explores the role of religion in early American history.

This Sunday Is Second "Pulpit Freedom Sunday"

Alliance Defense Fund announced yesterday that its second annual Pulpit Freedom Sunday will be held on September 27. The event is part of ADF's Pulpit Initiative which is designed to challenge the constitutionality of Internal Revenue Code provisions barring partisan electoral activity by Section 501(c)(3) non-profits, including churches. This year more than 80 pastors will preach sermons related to biblical perspectives on the positions of electoral candidates or current government officials who are not involved in election contests. ADF has posted legal resources for participating churches. Last year some critics charged that ADF was in violation of ethical rules binding on lawyers who practice before the IRS by encouraging churches to violate the tax code. (See prior posting.) ADF this year makes clear that there is no legal problem with pastors speaking from the pulpit about current government officials who are not presently candidates for elective office. ADF complains that "the IRS has issued increasingly vague guidance on the law, which limits the First Amendment rights of pastors speaking from the pulpit, but has continued to launch investigations while avoiding court review of the constitutionality of its actions."

UPDATE: ADF reports that 83 churches from 30 states and D.C. participated in the 2009 Pulpit Sunday.

Court Dismisses Prof's Dismissal Complaint Under Ecclesiastical Abstention Doctrine

Earlier this week, an Ohio trial court held that under the ecclesiastical abstention doctrine it could not decide a breach of contract claim (full text of complaint) brought by David Hoffeditz, a Professor of Bible and Greek, against Cedarville University, a Baptist college. Yesterday's Chronicle of Higher Education reports that Greene County Common Pleas judge J. Timothy Campbell concluded that he could not decide whether the tenured associate professor's dismissal was for just cause without examining matters of religious doctrine. The First Amendment precludes such an inquiry. The court however refused to dismiss Hoffeditz's claim that the University committed fraud by extending his contract into the 2007-8 academic year without telling him it had already decided to dismiss him once its academic accreditation process was completed. Extensive documents related to the case are posted on a website title The Cedarville Situation.

Illinois High Court Upholds Bequest To Grandson Who Married Within the Faith

In In re Estate of Max Feinberg, (IL Sup. Ct., Sept. 24, 2009), the Illinois Supreme Court, by narrowly defining the issue before it, upheld the result desired by Max Feinberg who wanted to leave his estate only to those of his grandchildren who married within the Jewish faith. Four of his five grandchildren married non-Jews, and one of them contested the testamentary provisions that disinherited her. The state Court of Appeals upheld her challenge on public policy grounds. (See prior posting.)

The Supreme Court, however, focused on the fact that Feinberg's wife exercised a power of appointment she had been given under the terms of her husband's testamentary trust. She had directed that upon her death her two children and the grandson who had then married within the faith receive the assets that were currently in trusts. This eliminated many of the hypothetical concerns that had influenced the Court of Appeals' decision and eliminated any influence on future marital decisions of potential beneficiaries. No "dead hand" controlled the future conduct of beneficiaries because the wife locked in the identity of the beneficiaries by making a bequest "to reward, at the time of her death, those grandchildren whose lives most closely embraced the values she and Max cherished."

The Supreme Court also rejected constitutional claims, saying:

Because a testator or the settlor of a trust is not a state actor, there are no constitutional dimensions to his choice of beneficiaries. Equal protection does not require that all children be treated equally; due process does not require notice of conditions precedent to potential beneficiaries; and the free exercise clause does not require a grandparent to treat grandchildren who reject his religious beliefs and customs in the same manner as he treats those who conform to his traditions.

AP reports on the decision and gives additional background.

Funeral Director Loses On Most of Her Religious Discrimination Claims

In Prise v. Alderwoods Group, Inc., 2009 U.S. Dist. LEXIS 86445 (WD PA, Spet. 21, 2009), a Pennsylvania federal district court dismissed religious discrimination claims under Title VII of the 1964 Civil Rights Act and the Pennsylvania Human Relations Act. Funeral director Deborah Prise was placed on paid leave and then fired as manager of the Hirsch Funeral Home . She claimed the actions against her involved employment discrimination on the basis of religion. The court, however, concluded that the actions stemmed from the fact that Prise was attempting to run Hirsch Funeral Home in strict accordance with Jewish law, and that her superiors wanted to accommodate the needs of non-Jewish customers even when doing so would contravene Jewish law. The court also rejected Prise's failure to accommodate claim, finding that at most the funeral home merely refused to give her an absolute guarantee that she would never be required to work on the Jewish Sabbath or Jewish holidays. The court, however, permitted Prise to move ahead with her claims of retaliation for filing her discrimination complaints with the EEOC and the Pennsylvania Human Relations Commission, finding that factual questions remained as to those charges.

House Committee Holds Hearings On Employment Non-Discrimination Act

Yesterday, the House Committee on Education and Labor held its first hearing on H.R. 3017, the Employment Non-Discrimination Act of 2009. The bill would prohibit employment discrimination, preferential treatment, and retaliation on the basis of sexual orientation or gender identity by employers with 15 or more employees. The bill includes an exemption for any "corporation, association, educational institution, or society that is exempt from the religious discrimination provisions of title VII of the Civil Rights Acts of 1964 pursuant to section 702(a) or 703(e)(2) of such Act." A webcast of the hearing and transcripts of witnesses' statements are available on the Committee's website.

The testimony by Rabbi David Saperstein, Director of the Religious Action Center of Reform Judaism, endorsed the the bill's anti-discrimination provisions as stemming "from a core teaching shared by an array of faith traditions." he said that the religious institutions exemption has broad based support. However Craig L. Parshall, Senior Vice-President of the National Religious Broadcasters, criticized the religious institutions exemption as inadequate. More broadly, he argued:

Neither the Congress nor the courts have jurisdiction over the religious beliefs of people of faith. Holding the faithful in contempt because they advance unpopular religious doctrines itself evidences a form of cultural discrimination. Christian ministries that object to those sexual preferences which are in clear violation of the standards of the Bible are standing on a long and well-worn road.... The rights to preach and practice those beliefs spring from a Bill of Rights that is two hundred and twenty years old....

Polish Court Fines Catholic Magazine For Its Attack On Woman Seeking An Abortion

In Poland, a court has ordered the magazine Gosc Niedzielny, which is published by the Catholic Archdiocese of Katowice, to apologize and pay damages of nearly $11,000 (US) to Alicja Tysiac who attempted unsuccessfully to obtain an abortion when her pregnancy threatened her eyesight. The Catholic publication vilified Tysiac for "wanting to kill her child," and equated abortion with Nazi medical experiments. AP reported yesterday that Judge Ewa Solecka held that Catholics are free to express their moral disapproval of abortion in a general way, but must stop short of vilifying an individual. The offending article in Gosc Niedzielny was in response to an award of damages to Tysiac who had sued Poland in the European Court of Human Rights. The magazine says yesterday's decision infringes its freedom of speech, and it plans an appeal.

Polygamy Charges Dismissed By British Columbia Supreme Court

An expected constitutional challenge to polygamy laws in the Canadian province of British Columbia (see prior posting) has been short circuited as province's Supreme Court quashed the indictments against two FLDS leaders on other grounds. In Blackmore v. British Columbia (Attorney General), (BC Sup. Ct., Sept. 23, 2009), the Court held that British Columbia's attorney general lacked authority to order appointment of a second special prosecutor to bring polygamy charges against leaders of two separate factions of the FLDS Church after a first special prosecutor recommended against bringing charges. Section 7.5 of the Crown Counsel Act provides that "the decision of a special prosecutor with respect to any matter within his or her mandate is final." The Court held that the appointment here of successive prosecutors is exactly the kind of political interference with the charging process that the Crown Counsel Act is meant to prohibit. Canadian Press yesterday reported on the decision.

Spanish Judge Works Out Compromise With Witness Wearing Burka

A Spanish judge yesterday worked out a compromise with a witness in a criminal trial who insisted on wearing her burqa when she testified. Think Spain reports that the woman had been called to testify for the prosecution in the trial of nine Islamists charged with recruiting suicide bombers in order to send them to Iraq. After a conference in chambers with the woman and the prosecutor, the parties agreed that the witness would appear Monday wearing her burqa above her eyebrows and below her chin so the judge can see her face. She will testify with her back to the public gallery in the court room, and no cameras will be allowed.

Here Are Religious Liberty and Church-State Issues From Senate's Health Care Reform Bill

Last week, the Chairman of the Senate Finance Committee, Sen. Max Baucus, introduced his detailed proposal for comprehensive health care reform, the America's Healthy Future Act of 2009. (Press release.) The committee has posted a 223 page document (the Chairman's Mark) describing the bill and a 348-page document summarizing a large number of proposed amendments from other Finance Committee members. Several items covered in the bill and proposed amendments are of particular interest to those following religious liberty and church-state matters-- abortion, conscience provisions, spiritual health care, faith-based grants and abstinence education.

Extensive attention has been given to issues relating to abortion services. A lengthy summary of the abortion provisions in the bill are in the Chairman's Mark at pp. 28-30 of that document. The provisions would:

• ensure that state laws prohibiting or requiring coverage or funding for abortions, and state laws involving abortion-related procedural requirements, are not preempted. The provision similarly provides that Federal conscience protections and abortion-related antidiscrimination laws would not be affected by the bill.
  
• abortions (beyond those for which federal funds can already be used) cannot be a mandated benefit as part of a minimum benefits package but a qualified health plan would not be prohibited from providing additional coverage. Federal funds continue to be prohibited from being used to pay for abortions unless the pregnancy is due to rape, incest, or if the life of the mother is in danger.


• no tax credit or cost-sharing credits may be used to pay for abortions beyond those for which federal funds may already be used. Insurers participating in any state-based exchange that offer additional abortion coverage must segregate from any premium and cost-sharing credits an amount of each enrollee's private premium dollars that is determined to be sufficient to cover the provision of those services.


• in each state exchange, at least one plan must provide additional abortion coverage and at least one plan must not provide such coverage.


• health benefits plans participating in state exchanges would be prohibited from discriminating against any individual health care provider or health care facility because of its willingness or unwillingness to provide, pay for, provide coverage of, or refer for abortions.

Other provisions of interest in the Chairman's Mark are:

• Pg. 31: Exemptions from the requirement to have health coverage would be allowed for religious objections that are consistent with those allowed under Medicare.
  
• Pg. 32: Exemptions from the excise tax on those who do not purchase health insurance policies will be made for any health arrangement provided by established religious organizations comprised of individuals with sincerely held beliefs (such as those participating in Health Sharing Ministries),.
  
• Pg. 76: states can apply for funds to provide incentives to Medicaid enrollees who successfully complete healthy lifestyle programs. In designing plans, States may collaborate with community-based programs, non-profit organizations, providers, and faith-based groups, among others.

Many of the proposed amendments are also of interest to those concerned with religious liberty and church-state issues. Here is a summary with an indication of the pages at which they appear:

• Pg. 36: Rockefeller Amendment #C22: $80 million annually would go to non-profit, community-based, and faith-based organizations as well as to states to cover the administrative costs of system and policy improvements that expedite enrollment and retention in the Children's Health Insurance Program.
  
• Pg. 79: Kerry-Hatch Amendment #C-14 (pg. 79): No qualified health plan offered through a State Exchange may deny benefits for religious or spiritual health care.
  
• Pg. 201: Hatch Amendment #C-10: Restores funding for abstinence education.
  
• Pg. 203: Hatch Amendment #C-12: Prohibits federal funds from being used to pay for assisted suicide and offers conscience protections to providers or plans refusing to offer assisted suicide services.
  
• Pg. 204: Hatch Amendment #C13: Non-discrimination on abortion and respect for right of conscience.
  
• Pg. 205: Hatch Amendment #C14: Prohibits federal funds under the Act from being used for elective abortions and plans that cover such abortions.
  
• Pg. 310: Enzi Amendment #C12: Prohibits requirement that a health plan cover abortions except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest.
  
• Pg. 311: Enzi Amendment #C13: Prohibits federal funds to be used to pay for any abortion or cover any part of the cost of any health plan that includes coverage of abortion, except in the case where the mother‘s life is in danger or the pregnancy is the result of rape or incest. But individuals may purchase supplemental abortion coverage with non-federal funds.
  
• Pg. 312: Enzi Amendment #C14: Prohibits any provision in the bill from overturning or preempting constitutionally permissible laws or regulations of a State, that place limitations or procedural requirements on abortions, including any state law requiring parental notification or consent for the performance of an abortion on a minor.
  
• Pg. 313: Enzi Amendment #C15: Prohibits the federal, state or local governments, health care providers or plans that receives federal funds from discriminating against an individual or institution on the basis that they do not perform or participate in specific surgical or medical procedures or prescribe certain pharmaceuticals in violation of the moral, ethical, or religious beliefs of the individual or entity.

Yesterday the Interfaith Alliance released letters it sent to Sen. Orrin Hatch objecting to his Amendment #C-10 and to Sen. Michael Enzi objecting to his Amendment #C-15.

Litigation Over Church Property Was Costly For Both Sides In Colorado Springs

Yesterday's Colorado Springs Gazette reports on the high cost to both sides of the litigation over ownership of Colorado Springs Grace Church & St. Stephen's $17 million building after members split from the Episcopal Church USA. (See prior posting.) St. George’s Anglican Church-- the break away group that ultimately gave up the building-- has asked its members for a one-time family donation of $1,500 each to cover about $750,000 in legal fees plus tens of thousands of dollars in court costs. The Episcopal Diocese of Colorado spent $2.9 million to defend its ownership of the building. It was forced to sell stocks and bonds from its endowment portfolio to cover the costs at a time when its investment income dropped dramatically because of market conditions.

Canadian Appeals Court Permits Religious Groups' Intervention In Prostitution Law Challenge

According to today's Toronto Globe & Mail, the Court of Appeal for Ontario this week reversed a decision of a Canadian trial judge and has permitted two religious groups and a conservative women's group to intervene in a case challenging the constitutionality of several of Ontario's anti-prostitution laws. The challengers argue that prostitution laws violate a constitutional guarantee to life, liberty and security by exposing sex workers to danger. A 3-judge panel of the appeals court ruled that the Christian Legal Fellowship, REAL Women of Canada and the Catholic Civil Rights League have a legitimate contribution to make to an issue that has moral dimensions. The challengers had objected to the groups' intervention, arguing that the case involves the health and safety of sex trade workers, and not moral questions. (See prior related posting.)

Today Is 20th Annual "See You At The Pole"

Today is the 20th annual See You At the Pole event at schools around the country. The event's website describes its purpose: "See You at the Pole™ is all about prayer. It's about you coming together and laying aside all of the labels and groups for one day, to simply engage with God in prayer and connect with fellow Christians in unity around the flag pole." Charisma News says that sponsors expect 2 million students-- from elementary school to college age-- to attend the student-led events, usually scheduled before the formal beginning of the school day. Church-state questions still remain as to the permissibility of participation in SYATP by teachers and administrators, and about how the programs may be publicized in schools. (See prior posting.)

Baptist Joint Committee Executive Director J. Brent Walker, writing Monday at the Washington Post's On Faith, suggests guidelines for conducting programs. They include a warning that: "students should avoid being lulled into a civil religion trap. Joining hands in a circle facing the quintessential symbol of our country, the American Flag, makes this a real risk. Yes, we are told in Scriptures to pray for our leaders. Students should understand they are not praying to Caesar, but to God." Jamison Foser at Media Matters criticizes Walker's suggestions, saying that SYATP undermines the spirit, if not the letter, of church-state separation.

Paper Says Minnesota's Funding of Drug Program Raises Church-State Issues

Yesterday's Minnesota Independent features an investigative article on state funding of Minnesota Teen Challenge's faith-based drug treatment centers. MnTC has received nearly $2.4 million in state funding since 2007, primarily from the Minnesota Department of Human Services' Consolidated Chemical Dependency Treatment Fund. County agencies, using state guidelines, determine which clients need treatment and then pay state-licensed providers (such as Teen Challenge) for the treatment on a fee-for-service basis. The state Fund reimburses counties for much of their costs. Teen Challenge says that state funds are not used for evangelical programming. However, according to the newspaper's report: "most of the language about the program — coming from its managers, Web site and clients — references the transformational power of Jesus Christ, as opposed to chemical health and behavior therapy." Last year, American United called for termination of federal grants to Minnesota Teen Challenge because of Establishment Clause concerns. (See prior posting.)

New Saudi University, Sponsored By King, Moves Away From Strict Islamic Norms

UAE's The National reports that today in Thuwal, Saudi Arabia, the King Abdullah University for Science and Technology (KAUST) will be dedicated. Long the dream of King Abdullah, KAUST--a graduate university dedicated to scientific research and innovation-- has been set up with an endowment of over $10 billion. The King has organized the University so that it is independent and has freed it somewhat from the religious influences that dominate in other Saudi universities. In particular, the country's conservative religious establishment has been critical that the KAUST will be co-educational, with men and women studying and working together. On campus, women will not have to wear the traditional abaya and they will be permitted to drive on campus. University officials are not aiming to spread these freedoms for women elsewhere in the Kingdom, but do hope that KAUST will force the national education system to replace rote learning with creative thinking.

Uganda's Government Will Propose Creation of Khadi Courts

Uganda's Constitution, Sec. 129, provides for various courts to be established, including "qadhis' courts for marriage, divorce, inheritance of property and guardianship, as may be prescribed by Parliament." New Vision reported yesterday that Uganda's Attorney General, Freddie Ruhindi, told a committee of Parliament that the Government will soon propose a bill to implement this provision. The bill will provide for the creation of Islamic Khadi courts in which Muslims will be able to apply Sharia law.

Rockland County Health Officials Again Monitoring Kapparot Ritual Site

The Jewish holy day of Yom Kippur begins Sunday evening. Again this year, the Rockland County (NY) Health Department is giving close attention to the site where Orthodox Jews are carrying out the pre-Yom Kippur ritual of kapparot-- the symbolic passing off of sins by circling a live chicken above one's head three times. The chicken is then slaughtered, and donated for food for the needy. According to today's Lower Huson Valley Journal News, for the third year in a row authorities have found sanitary code violations by Moshe Lefkowitz who is bringing some 11,000 chickens to a site in front of a former drive-in move theater in Rockland County, New York. The tradition of kapparot is controversial, both in terms of its theology and its treatment of animals. Many Orthodox Jews substitute funds equal to the value of the chicken, using that in the ceremony and then donating the funds to charity for the poor. (Background.) [Thanks to Vos Iz Neias? for the lead.]

Jediism Founder Accuses British Supermarket Chain of Religious Discrimination

In Britain, the founder of the Jedi religion (inspired by the Star Wars films) has accused Tesco supermarkets of religious discrimination. The London Guardian reported last Friday that Daniel Jones was ordered by staff at a Tesco store in north Wales to remove his hood while in the store. Jones, also known by his Jedi name Morda Hehol, said his religion requires him to wear the hood while in public. He is considering legal action against Tesco. Tesco though was undaunted in enforcing its rules, saying: "Obi-Wan Kenobi, Yoda and Luke Skywalker all appeared hoodless without ever going over to the Dark Side and we are only aware of the Emperor as one who never removed his hood. If Jedi walk around our stores with their hoods on, they'll miss lots of special offers."

Jewish Groups Protest Plans For Saturday Iowa Caucuses In 2010

On Friday, the Jewish Council for Public Affairs released the text of a letter sent to the chairmen of Iowa's Republican and Democratic parties by a coalition of 18 national Jewish groups. The letter protests plans to hold the January 2010 Iowa party caucuses on a Saturday (the Jewish Sabbath), saying: "Saturday caucuses will force members of the Iowa Jewish community to choose between their faith and their civic duties." Caucuses do not permit absentee voting. Friday's Chicago Tribune reports that the change to Saturday was made by the parties to enable more working people to attend the caucuses. Party leaders say the change is an experiment, and that it does not necessarily mean that the 2012 Iowa Presidential caucuses would also be moved to Saturday.

Teenager Will Stay In Florida For Now As Clarifications Are Sought

A court in Orlando, Florida yesterday held another hearing in the case of Rifqa Bary, the 17-year old who fled her Muslim parents' home in Ohio and came to Florida claiming that she feared her father would kill her because she had converted to Christianity. (See prior posting.) WBNS TV 10 reports Circuit judge Daniel Dawson ordered that for now Rifqa will remain in Florida, but that she may have no contact with Pastor Blake Lorenz's family with whom she had been staying. According to the St. Petersburg Times, Dawson will confer with a judge in Ohio to determine if a legitimate dependency action has been filed. Rifqa's guardian ad litem is concerned that the petition filed in Ohio is merely a ploy, and the case will be dropped once Rifqa is returned.

According to Central Florida News 13, a report by the Florida Department of law Enforcement found a number of misrepresentations in Rifqa Bary's story. She did not hitch hike to the Greyhound bus station to flee, but instead she was driven to the bus station by the man who baptized her in Ohio. Her bus ticket was actually purchased in Orlando under a false name. Currently four different attorneys claim to be representing Rifqa. The Florida Department of Children and Families has filed a motion asking the court to determine who should be recognized as her attorney.

UPDATE: WBNS TV10 reported on Tuesday that Pastor Blake Lorenz and his family are under criminal investigation for possibly helping Bary flee from Ohio.

Georgetown's Feldblum Nominated To EEOC

Last week, President Obama nominated Chai Rachel Feldblum to be a member of the Equal Employment Opportunity Commission. (White House release.) The EEOC enforces employment discrimination laws, including the ban on religious discrimination in employment. Feldblum currently is Professor of Law and Director of the Federal Legislation Clinic at Georgetown University Law Center. The nomination to one of the five positions as Commission member must still be confirmed by the Senate.

Recent Prisoner Free Exercise Cases

In Timbuktu v. Malone, 2009 U.S. Dist. LEXIS 82053 (ED WI, Sept. 9, 2009), a Wisconsin federal district court refused to grant summary judgement to two Muslim inmates who alleged that in a number of instances their prayers were interrupted or stopped, the location of their prayers were changed and that there were infringements on their observance of Ramadan and other religious feasts.

In Norton v. Kootenai County, 2009 U.S. Dist. LEXIS 82863 (D ID, Sept. 11, 2009), an Idaho federal district court dismissed plaintiff's claim that his First Amendment rights were violated when he was ordered to attend Alcoholics Anonymous meetings as a condition of his probation. The court concluded that while there was a religious component to the program, plaintiff never notified his probation officer of his objections to it.

In Parnell v. Tucker, 2009 U.S. Dist. LEXIS 83103 (ND CA, Aug. 27, 2009), a California federal district court permitted plaintiff to move ahead with claims against certain of the defendants that restrictions on his exercise of his Islamic religion, such as denying him access to the chapel or yard for congregational prayers and study, violate his First Amendment rights and his rights under RLUIPA.

In Hodgson v. Fabian, 2009 U.S. Dist. LEXIS 83134 (D MN, Aug. 19, 2009), a Minnesota federal magistrate judge recommended dismissing claims by a Wiccan prisoner that his rights are violated by prison policies that resulted in confiscation of issues of a Wiccan magazine, refusing to allow him and the Wiccan group to smudge or burn incense in the prison chapel, limiting the herbs that inmates could order for religious use, and prohibiting keeping or using prayer oil in inmate cells.

In Jordan v. Caruso, 2009 U.S. Dist. LEXIS 83575 (ED MI, Sept. 14, 2009), a Michigan federal district court rejected a claim by a prisoner who was a member of the Moorish Science Temple of America that his rights were violated when prison officials refused to use the term "El" as part of his name on his cell door card, as required by his religious beliefs. The magistrate's recommendations in the case are at 2009 U.S. Dist LEXIS 83584 (June 11, 2009).

In Hundal v. Lackner, 2009 U.S. Dist. LEXIS 83814 (CD CA, Sept. 15, 2009), a California federal magistrate judge held that a Sikh prisoner who was denied an exemption from beard length restrictions had not stated a claim under the First Amendment, but had stated a claim under RLUIPA. However the complaint was dismissed with leave to refile to eliminate the RLUIPA claims for damages against defendants in their individual capacities which the court held were not authorized under the statute.

In Cromer v. Unknown Chaney, 2009 U.S. Dist. LEXIS 84726 (WD MI, Aug. 26, 2009), a Michigan federal magistrate judge recommended dismissal of a claim that plaintiff's rights were violated when prison authorities confiscated Five Percent Nation religious materials from his cell.

In Robinson v. Meyers, 2009 U.S. Dist. LEXIS 84202 (D SC, Aug. 10, 2009), a South Carolina federal magistrate judge recommended granting summary judgement to defendants in a case in which a pre-trial detainee who was a member of the House of Yahweh complained about a 5-month delay in obtaining a diet meeting his religious requirements. The delay resulted from confusion about Plaintiff's religious affiliation and the type of diet required under the beliefs of that religion.

South Carolina High Court Rules For Break-Away Anglican Parish

Last week the South Carolina Supreme Court issued an interesting decision in litigation stemming the 2004 vote by members of All Saints Parish, Waccamaw, to break away from the Episcopal Church USA and instead affiliate with the more conservative Episcopal Church of Rwanda. A small group of members remained loyal to ECUSA and the South Carolina Episcopal Diocese and purported to elect a new vestry for the congregation. In All Saints Parish Waccamaw v. The Protestant Episcopal Church in the Diocese of South Carolina, (SC Sup. Ct., Sept. 18, 2009), the court, applying neutral principles of civil law, held that the Parish's property belongs to the break-away group and that the vestry elected by the majority break-away group are the true officers of the Parish.

The court's decision on property ownership held that the Statute of Uses converted beneficial ownership of Parish property under a 1745 Trust Deed into legal title for the Congregation of All Saints Parish. The Court went on to hold that while the Diocese of South Carolina amended its Constitution in 1987 to add the Dennis Canon-- which declares a trust in favor of the ECUSA and the Diocese on all real and personal property held by any congregation-- the action did not affect property of All Saints Parish. The Court said that the Dennis Canon could only impose a trust on property owned by the Diocese. A comment on the decision on Episcopal Cafe makes the interesting point that "the decision simply assumes (without considering the matter) that South Carolina can switch from being a 'deference' state to a 'neutral principles' state without thereby interfering with anybody's established property rights." [Thanks to John B. Chilton for the lead.]

Recent Articles Of Interest

From SSRN:

• Brian Leiter, Foundations of Religious Liberty: Toleration or Respect?, (September 16, 2009).
• Brian D. Galle, Foundation or Empire? The Role of Charity in a Federal System, (FSU College of Law, Law, Business & Economics Paper No. 1473107, Sept. 14, 2009).

From SmartCILP:

• A Symposium on God and the Land: Conflicts Over Land Use and Religious Freedom. (Table of Contents.) 2 Albany Government Law Review 354-652 (2009).

Value Voters Summit Held Last Week End

The Value Voters Summit was held this past weekend in Washington, D.C., bringing together Christian conservatives from around the country. CQ Politics reports on the Summit's straw poll for 2012 Presidential candidate. The winner was former Arkansas Governor Mike Huckabee. On issues, 41% said that abortion was the primary issue that would determine their choice for President. 18% chose religious liberty as their primary concern.

FLDS Member Sues For Religious Discrimination

Friday's Salt Lake Tribune , as well as Fox 13 News, report on the first-ever civil rights action by a member of the FLDS Church, filed Friday in Maricopa County (AZ) Superior Court. The complaint (full text) in Barlow v. Goddard, (AZ Super. Ct., filed 9/18/2009) alleges that the decertification of former police officer Preston Barlow by the Arizona Police Officer Standards and Training Board violated various federal and state constitutional and statutory provisions. Barlow claims that he was misled about the purpose of an investigation during which he refused to answer a number of questions about his FLDS faith. In fact the investigation was designed to look into whether Barlow and other FLDS officers had failed to protect property belonging to the United Effort Plan Tust which holds property of FLDS members (and which is now being reorganized under court supervision). Barlow claims that the investigation and his decertification placed a burden on his free exercise of religion, imposed a religious test for state employment, and were carried out under unconstitutionally broad and vague standards.

Settlement Reached In Lawsuit Challenging FaithGuard Homeowners' Insurance

The U.S. Justice Department announced on Friday that it had reached a settlement with GuideOne Mutual Insurance Company and two of its agents in connection with the company's FaithGuard endorsements on homeowners policies. The endorsement offered special benefits and discounts only to churchgoers and "people of faith," a practice which the Department of Housing and Urban Development claimed violated the Fair Housing Act. A complaint was filed along with the proposed settlement on Friday in a Kentucky federal district court. Under the settlement, which still must be approved by the court, defendants will pay damages of $29,500 to three victims of discrimination and will pay a civil penalty to the government of $45,000. In addition, GuideOne will stop selling homeowners and renters insurance policies with the FaithGuard endorsement, train GuideOne insurance agents on their responsibilities under the Fair Housing Act and provide periodic reports to the Justice Department. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Mississippi Supreme Court Rules In Challenge By Members of Church Damaged By Katrina

In Schmidt v. Catholic Diocese of Biloxi, (MS Sup. Ct., Sept. 17, 2009), members of St. Paul Catholic Church in Pass Christian, Mississippi brought suit after the diocese effectively closed the church that had been damaged by Hurricane Katrina and merged the parish into a newly created one. In this decision, the Mississippi Supreme Court held that plaintiffs lack standing to assert that St. Paul's property was held in trust for them. However, it held that the courts do have jurisdiction over claims that Church funds were improperly diverted and that one of the defendants, a priest, made intentional misrepresentations in soliciting funds for the rebuilding of St. Paul's. A concurring opinion by Justice Randolph, joined in part by Justice Pierce, concluded that the ecclesiastical abstention doctrine removes jurisdiction from courts over whether or not St. Paul's property was held in trust. (See prior related posting.)

White House and State Department Messages Mark Eid-ul-Fitr

Yesterday the White House issued a statement from President Obama and the First Lady extending greetings to Muslims on the ending of Ramadan and the celebration of Eid-ul-Fitr. A posting on the White House blog from D. Paul Monteiro, Deputy Associate Director, White House Office of Public Engagement, indicated that several government agencies have participated this year in events to mark Ramadan. Earlier this week, Secretary of State Hillary Clinton issued a message for Eid-ul-Fitr, stating in part: "the United States seeks a new beginning with Muslims around the world, one based on mutual interest and mutual respect." A video of the message, as well as transcripts in English and 15 other languages are posted on the State Department's website.

Bankruptcy Judge Accommodates Hindu Temple In Chapter 11

Yesterday's Atlanta Journal Constitution reports that a Georgia federal bankruptcy judge has found a creative solution to what could have become a troublesome church-state problem. After the Hindu Temple of Georgia defaulted on a $2.3 million loan and faced foreclosure on its 9-acre property in Norcross, Georgia, it filed for a Chapter 11 bankruptcy protection. The bankruptcy judge ordered an inventory of the Temple's property, however Temple priests are undergoing a 216-day period of ritual cleansing during which non-Hindus are barred from entering the Temple. So Judge James E. Massey ordered that creditors send someone of the Hindu faith to inventory and photograph Temple rooms. Meanwhile the Temple may drop a $26 million lawsuit it filed earlier this month against police and those who cooperated with them in charging its swami, Annamalai Annamalai, with practicing medicine without a license and theft. The charges were later dropped for lack of evidence.

President Reaches Out Internationally With Rosh Hashanah Greetings

Rosh Hashanah begins this evening. It has become standard practice for the U.S. President to issue holiday greetings to those celebrating the Jewish holy days. This year the White House broke new technological ground in reaching out to Jews around the world. The President recorded video greetings which can be viewed online with French, Hebrew, Russian, Spanish, Turkish, Arabic or Persian subtitles. In addition to an English language transcript of President Obama's remarks, transcripts are also available in these same seven languages. In his message, the President said in part:

Let us work to extend the rights and freedoms so many of us enjoy to all the world's citizens – to speak and worship freely; to live free from violence and oppression; to make of our lives what we will. And let us work to achieve lasting peace and security for the state of Israel, so that the Jewish state is fully accepted by its neighbors, and its children can live their dreams free from fear.

Jewish Newspaper Interviews Scalia On Religion and State

In an interview this week with the Jewish newspaper Hamodia, U.S. Supreme Court Justice Antonin Scalia spoke about the Court's Establishment Clause jurisprudence and about the role religion should play in American life. He said:

My court has a series of opinions that say that the Constitution requires neutrality on the part of government, not just between denominations ... but neutrality between religion and non-religion. I do not believe that. That is not the American tradition.

He also remarked:

I am not sure how Orthodox Jews feel about the Establishment Clause, but I assume they do not like driving G-d out of public life.

State Department Hosts Iftar

Earlier this week, the U.S. State Department hosted its annual Iftar dinner in honor of Ramadan. The State Department has posted the full text of remarks at the dinner by Farah Anwar Pandith, Special Representative to Muslim Communities, and by Secretary of State Hillary Clinton. Clinton said in part:

I think that American embassies have been holding Iftars for decades. Our diplomatic posts have held hundreds of events to celebrate Ramadan this year alone. And I am proud that we have so many Muslims serving in our Foreign Service and our Civil Service who are playing an important role in advancing our nation’s foreign policy interests and strengthening the bonds of cooperation and understanding with Muslims at home and abroad.

Pakistan's The News reported on the dinner.

Creationist Views of Florida Mayoral Candidate Debated

The St. Petersburg (FL) Times reported on Wednesday that the Creationist views of St. Petersburg mayoral candidate Bill Foster have become an election issue. Foster believes that the earth was created in literal six days, and that dinosaurs and humans lived at the same time. Supporters of Kathleen Ford, Foster's opponent, argue that Foster's views will make it more difficult for the city to recruit scientific firms to locate there. Foster insists that he will not let his personal religious beliefs interfere with governing the city and that he will eagerly recruit science-based companies.

EEOC Sues Clothing Chain Over "Look Policy" Barring Head Coverings

The EEOC announced yesterday that it has filed a federal religious discrimination lawsuit against the retail clothing chain Abercrombie & Fitch for refusing to hire a 17-year old Muslim because she wore a hijab (head scarf). The complaint filed in an Oklahoma federal district court alleges that an Abercrombie Kids store in a Tulsa, Oklahoma mall interviewed Samantha Elauf for a sales position, but refused to hire her because wearing of a head covering violated the company's "Look Policy." The suit was filed after attempts to reach a negotiated settlement failed.

School Principal, Athletic Director Acquitted of Contempt In Prayer Case

Late yesterday afternoon, a Florida federal district court judge acquitted a Santa Rosa County (FL) high school principal and the school's athletic director of criminal contempt charges growing out of their failure to follow the terms of a temporary injunction against faculty-led school prayer. In January, nine days after U.S. District Judge Casey Rodgers issued the injunction, principal Frank Lay asked Pace High School athletic director Robert Freeman to lead a prayer at the beginning of a school luncheon at which students were present. According to yesterday's Pensacola News-Journal: "[Judge] Rodgers said the prayer at a field house dedication during the school day that was held on church property was spontaneous, and there was seemingly no intent to violate the order." AP reports that Judge Rodgers decision "was greeted with a roar of approval followed by rounds of religious hymns from the hundreds of protesters who had stood outside the Pensacola Federal Court House for the daylong trial." The contempt charges against the two officials of the rural Florida Panhandle school had become the center of national attention, in part through press releases from Liberty Counsel that was representing Lay and Freeman. (See prior posting.)

National Groups Want Bush Administration's RFRA Memo Withdrawn

Yesterday 58 national civil rights and religious groups sent a letter (full text) to U.S. Attorney General Eric Holder seeking a change in an interpretation of the Religious Freedom Restoration Act issued by the Bush administration in 2007. In the 2007 memo, the Justice Department's Office of Legal Counsel concluded that RFRA trumps the religious anti-discrimination provisions of the Juvenile Justice and Delinquency Prevention Act, allowing a Christian youth program to receive a federal grant even though the organization hires only Christian staff. (See prior posting.) The letter to Attorney General Holder reads in part:

The OLC Memo wrongly asserts that RFRA is “reasonably construed” to require that a federal agency categorically exempt a religious organization from an explicit federal nondiscrimination provision tied to a grant program. Although the OLC Memo’s conclusion is focused on one Justice Department program, its overly-broad and questionable interpretation of RFRA has been cited by other Federal agencies and extended to other programs and grants. The guidance in the OLC Memo is not justified under applicable legal standards and threatens to tilt policy toward an unwarranted end that would damage civil rights and religious liberty....

We accordingly request that the Obama Administration publicly announce its intention to review the OLC Memo, and that at the end of that review, withdraw the OLC Memo and expressly disavow its erroneous interpretation of RFRA....

The Anti Defamation League (one of the signatories) issued a press release calling attention to the letter. [Thanks to Michael Lieberman for the lead.]

Court Says Congregation Cannot Disaffiliate From National Church Body

In Classis of Central California v. Miraloma Community Church, (CA Ct. App., Sept. 15, 2009), a California Court of Appeals held that a local congregation of the Reformed Church in America lacked authority to amend its governing documents to disaffiliate from the national church in order to avoid a takeover by its hierarchical governing body, the classis. Under church rules, the classis could appoint an administrative body to supersede the congregation's trustees if the congregation's membership declined significantly. The congregation's bylaws included a provision that that its articles could not be amended in any manner-- including to disaffiliate-- without prior written consent of the classis.

Today Is Constitution Day, As Contempt Trial In School Prayer Case Begins

Today is Constitution Day, marking the 222nd anniversary of the signing of the 1787 Constitution. Liberty Counsel is circulating a press release noting that the criminal contempt trial of the principal and athletic coach of Pace High School in Santa Rosa County, Florida, begins today. They are charged with ignoring a court injunction against faculty-led prayer. (See prior posting.) Liberty Counsel's founder, Matthew Staver, commented: "What a sad state of affairs, when on the day we celebrate the oldest and most enduring Constitution in the world, that honorable public servants are tried as criminals for praying over a meal." Some 61 members of Congress, many from the Congressional Prayer Caucus, sent a letter (full text) to the defendants in the case saying that the country's founders would be astonished that someone would be charged criminally for engaging in prayer. Americans United commenting on the case last month had a different take, arguing that school officials "should be teaching their students to respect the law and the Constitution, not to ignore it when they don’t agree."

City Council Acts To Keep Invocations Non-Sectarian

Yet another city council has reacted to a letter from the Freedom from Religion Foundation objecting to sectarian invocations. With almost no discussion, the Tracy, California City Council voted Tuesday to take steps to assure that invocations are non-sectarian. The Tracy (CA) Press reports that Council will send out a letter to those who sign up to deliver prayers telling them to keep their prayer non-sectarian. Council also will write to several dozen religious groups, including three that are non-Christian, inviting them to participate in delivering invocations.

Florida Church's Lawsuit Challenges Zoning Denial

Yesterday's Jacksonville (FL) News reports that the predominantly African-American First Baptist Church of Mandarin has filed a federal lawsuit-- apparently under RLUIPA-- against St. Johns County, Florida challenging the county's denial of its zoning application to build a sanctuary, ancillary buildings and a commercial retail area to support its mentoring program, the Jesus Christ Institute. Neighbors said the 249,000 square foot project is too large for the proposed site on a two-lane rural road. The church's lawsuit alleges that the zoning decision was based on religious prejudice, burdening its religious practice through unequal and discriminatory treatment.

Do Government Economic Incentives Trigger Church-State Limits For Grocery?

In St. Louis (MO), some are arguing that a new downtown grocery store, Culinaria (owned by the Schunck's grocery chain), should be subject to church-state separation requirements because more than half of its funding came from government sources. Funding sources included tax credits and a leasing arrangement which results in the Missouri Development Finance Board owning the building in which the store is located. Yesterday's St. Louis Post-Dispatch reports that the issue arose because of a decision by Culinaria's Catholic manager to display a crucifix on a wall behind the customer service counter, opposite the store's checkout registers. Manager Tom Collora says the crucifix "is not meant to promote one faith over another. It's just an opportunity to share a part of myself and my life with people I work hard to serve every day."

Dutch Supreme Court Says Football Chant Violated Ban on Insulting of Religious Group

The Netherlands Supreme Court on Tuesday upheld a lower court's conviction and sentence of a football fan under Section 137c of the Dutch Penal Code that prohibits "insulting of a group of people because of their ... their religion or belief..." The conviction grew out of an odd football tradition in the country (explained by Counter Jihad). Before World War II, the Amsterdam team Ajax had many Jewish supporters from Amsterdam's large Jewish community. Supporters of other teams referred to Ajax fans as Jews as a term of abuse. After the Holocaust and World War II, Ajax supporters adopted the term Jews as a "badge of honor" and often used the Israeli flag as a symbol of support. However this led to the phenomenon of fans from opposing teams waving the Palestinian flag in opposition and engaging in anti-Jewish chants.

The chants are now banned in stadiums, but it was one of those chants by a fan in the street nearby that led to the conviction upheld this week. A supporter of the Hague football club ADO was arrested in 2006 for chanting: "Hamas, Hamas, Jews to the gas." The Supreme Court upheld his sentence of 80 hours of community service and two years' probation. According to Dutch News, the court rejected his defense that the chant was merely a way to provoke Ajax fans, and was not intended to be anti-Semitic.

Treatment Of Muslims By French Army Criticized

World Bulletin yesterday reported that the France's Defense Ministry is exerting additional control over Muslim officers in the French army by arranging their travel this year for the Hajj. The Ministry will provide a plane to fly them to Saudi Arabia and will organize their stay. In another attempt to influence Muslims in the military, last year the French army sent two of its imams to a government-sponsored class on citizenship and secular values. Another six imams will attend the course this year. Some French Muslim leaders have criticized this as an inappropriate attempt by the state to train imams. At the same time, Muslims in the Army have complained that no accommodation was made for their meals during Ramadan this year.

Teacher Awarded Qualified Immunity In Suit For Remark Against Creationism

A long-running lawsuit in which a California high school student and his parents sued history teacher James Corbett for making remarks hostile to religion has finally come to a close. In May, the court found that one of the teacher's comments-- calling Creationism "superstitious nonsense"-- violated the Establishment Clause. (See prior posting.) Then in July, the court held that plaintiffs were not entitled to declaratory or injunctive relief. (See prior posting.) Now, in C.F. v. Capistrano Unified School District, (CD CA, Sept. 15, 2009), a federal district court dismissed the remaining claim for nominal damages after finding that the teacher was entitled to qualified immunity. The court wrote in part:

Public officials must be able to do their jobs without fear that every misstep, however slight, will subject them to liability and the paralysis which goes with such a fear. Thus, the doctrine of qualified immunity looks to whether there was a clearly established right in issue.... The law as it existed in the fall of 2007 did not make clear that a single statement in an area of the law which lacks precision could violate the Constitution. The decision here on the merits advances the clarity of Farnan’s right to be free of anti-religious comments, but the extent of the advance and the results of future applications of the doctrine of qualified immunity in this area are for another day and another court.

The court's disposition of the case also bars future claims by plaintiff for attorneys' fees and costs. The OC Register reported on the decision and indicated that plaintiffs plan an appeal to the 9th Circuit.

Israeli Student's Legalistic Protest of Hametz Law Fails

YNet News yesterday reported on the results of the trial in Israel growing out of an incident earlier this year that attracted significant attention. Yeshiva student Aryeh Yerushalmi protested an Israeli court's interpretation of the law that prohibits the public display of leavened products for sale or consumption during Passover. He entered a Tel Aviv grocery store, went to the bread section, and stripped, claiming that if a grocery is not "public" for purposes of the Hametz Law, it should not be for the indecent exposure law either. (See prior posting.) The Rishon Lezion Magistrates' Court apparently does not agree. While this week it acquitted him of indecent assault, it convicted him of indecent conduct in a public place. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]