Establishment Clause Does Not Prevent Court's Deciding Dispute Over Burials

In Attal v. Taylor, (CA Ct. App., July 25, 2008), a California state appellate court held that the Establishment Clause did not preclude it from settling a complicated dispute between three siblings regarding the burial of their mother and brother.

Sharon Attal petitioned a court to have the body of her mother-- Joan Taylor-- removed from a crypt where it had been interred in 1988, and buried in a Jewish cemetery. Joan was born Jewish, but during most of her life was a practicing Presbyterian, and raised her children as Presbyterians. However in 1989, Joan's daughter Sharon began practicing Judaism. When Sharon's brother Mark died, Joan disregarded his instructions that his body be placed next to their mother's, and instead Joan had Mark buried in a Jewish section of a cemetery. Subsequently, Sharon entered an arrangement with her other brother, Dennis, to move their mother Joan's remains to the Jewish cemetery next to Mark, and to transfer the crypt space for use by Dennis and his wife. The fourth sibling, John, however objected, and the cemetery refused to move Joan's body unless a court order was obtained.

When Sharon petitioned the court to have her mother's body moved, John petitioned the court instead to have Mark's body moved from the Jewish cemetery back to the crypt next to their mother, as Mark had originally requested. The trial court denied Sharon's petition and granted John's. The Court of Appeals affirmed, concluding that it could apply neutral principles to resolve the dispute, without becoming entangled in questions of religious doctrine. While the trial court elicited evidence on whether or not Joan and Mark had been practicing Jews, this was relevant to the neutral inquiry regarding their wishes as to the disposition of their remains.

India Supreme Court Considering Constitutionality of Haj Subsidy

On Monday, India's Supreme Court set for hearing a lawsuit by former BJP member of parliament Praful Goradia challenging the constitutionality of the government subsidy given to Muslims going on Haj. IANS reported that a government affidavit supporting the subsidy argues that the Haj has secular foreign policy and foreign relations elements. It said that friendship with foreign countries, including Arab countries, is an aspect of the country's foreign policy. Indian Muslims on Haj "promote international goodwill and understanding". Goradia, on the other hand, claimed that a subsidy for Muslims, without similar subsidies for Hindus, Christians, Buddhists and Sikhs, is discriminatory. (See prior related posting.)

Lithuania Grants Recognized Status To Seventh-Day Adventists

The Adventist News Network reported yesterday that Lithuania has granted the Seventh-Day Adventist Church's application for state recognized status under its Law on Religious Communities and Associations. The determination, made on July 15, means that the church will be entitled to state subsidies and certain tax exemptions. Also its clergy and theology students will be exempt from military service.

Ukrainian President Wants National Church Separate From Moscow Patriarchate

Ukrainian president Viktor Yushchenko wants to create a Ukrainian Orthodox Church, ending affiliation with the Russian Orthodox patriarchate in Moscow. Saturday's Washington Post reported that at the start of a prayer service marking the 1,020th anniversary of Ukraine's and Russia's conversion to Christianity, Yushchenko said: "I believe that, as if by the gift of God, as a historical truth and justice, a national self-governing church will be established in Ukraine," and asked visiting leader of the Orthodox Church, Bartholomew I of Constantinople, to approve the idea. Bartholomew's response was non-committal, as he became the first head of the Orthodox Church to visit Ukraine in 350 years. Many fear that if Constantinople supports Ukraine's move, this could lead to a major schism with Moscow. Unlike Ukraine, countries such as Georgia and Bulgaria have their own Orthodox Patriarchs.

UPDATE: On Wednesday, Archbishop Ionafan representing the Ukrainian Orthodox Church of the Moscow Patriarchate strongly criticized President Yushchenko's bid for an independent Ukrainian church. According to Interfax, Ionafan said Yushchenko "abused his authority, violated the constitution and ignored the opinion of hierarchs on the unity of the Russian Orthodox Church."

California Buddhist Temple In Complex Litigation Over Control of Assets

Saturday's Long Beach (CA) Press-Telegram reported on the complicated litigation in a battle between two factions for control of Wat Vipassanaram, a Long Beach Cambodian Buddhist temple. The problems began last January when a dissident group, alleging mistreatment of the wat monks and abuse of authority sought an election to replace the board of the Khmer Buddhist Association that controls the temple. (Press-Telegram, Jan. 25). When the group moved ahead with the election of three new officers, opponents, including the temple's monks, went to court. (Press-Telegram, Feb. 15).

On July 2, a Superior Court judge appointed a receiver to manage the finances of the Khmer Buddhist Association, but the temple leadership refused to turn over assets or records to the receiver. On July 8, Siphann Tith, president of the Khmer Buddhist Association, told the receiver that most of the assets had been donated him to a newly formed organization called "Wat Khmer Vipassaram" and had been put under the supervision of the Church of Revelation, a Gnostic church in Orange. (Press-Telegram, July 15).

On Saturday the Press-Telegram reported that the Church of Revelation filed suit in federal court alleging that the court-appointed receiver, David Pasternak, and ten others attempted to improperly seize the assets that were donated to it by the Buddhist temple. The suit challenges the order of the state Superior Court judge that threatened contempt charges if the temple's assets are not turned over to the receiver. The federal lawsuit argues that the temple's donation of assets to the church is protected under First Amendment's Free Exercise clause. The complaint alleges that by divesting itself of all its assets, the temple's board was following the teachings of its religion's founder, Siddhartha Gautama.

South Dakota High Court Issues 3 Decisions On Inmate's Kosher Food Claim

Last week, the South Dakota Supreme Court issued three separate opinions in the case of convicted murderer Charles Sisney who has been litigating extensively over the kind of kosher meals to which he is entitled while in prison. Sisney v. Best, Inc., (SD Sup. Ct., July 23, 2008), involved claims that the bread Sisney was served was not certified as kosher. The court dismissed Sisney's claims under federal civil rights statutes and the state's deceptive trade practices law. However the court permitted Sisney to proceed with his tort claim of deceit.

In Sisney v. State of South Dakota, (SD Sup. Ct., July 23, 2008), the court held that Sisney was not a third party beneficiary to a contract between the state and a food services supplier under which the supplier was to furnish prison meals-- including those to accommodate religious requirements-- which averaged 2500 to 2700 calories per day.

In Sisney v. Reich, (SD Sup. Ct., July 23, 2008), the court allowed Sisney to move ahead with his claim that he was a third-party beneficiary of a settlement agreement between the Department of Corrections and a former inmate. Under that agreement, DOC agreed to provide a kosher diet to all Jewish inmates who requested it, including prepackaged kosher meals for lunch and dinner. Sunday's Bismarck Tribune reported on the decisions. (See prior related posting.)

New Articles and Book of Interest

From SSRN:

• Mark C. Modak-Truran, Beyond Theocracy and Secularism (Part I): Toward a New Paradigm for Law and Religion, (Mississippi College Law Review 159, 2007-2008).
• Robert C. Blitt, How to Entrench a De Facto State Church in Russia: A Guide in Progress, (Brigham Young University Law Review, July 21, 2008, Forthcoming).
• Mark C. Modak-Truran, Book Review: Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts (2007), (Journal of Religion, Vol. 88, No. 2, p. 257, April 2008).
• Mark C. Modak-Truran, Introduction: Symposium on Religion, Religious Pluralism, and the Rule of Law, (Mississippi College Law Review, Vol. 27, p. 1, 2007-2008).
• Gary J. Simson, Reflections on Free Exercise: Revisiting 'Rourke v. Department of Correctional Services', (Albany Law Review, Vol. 70, p.1425, 2007).
• Asifa Quraishi, Who Says Shari'a Demands the Stoning of Women? A Description of Islamic Law and Constitutionalism, (Berkeley Journal of Middle Eastern & Islamic Law, Vol. 1, pp. 163-177, 2008).

Other Recent Articles:

• Joseph Bottum, The Death of Protestant America: A Political Theory of the Protestant Mainline (First Things, Aug./Sept. 2008).
• Jack S. Levey, Why Is This Tenant Different From Other Tenants? Representing A Tenant With A Kosher Business, (Probate and Property, July/Aug. 2008, 38-41).

New Book:

• John Witte, Jr. & Frank S. Alexander (eds.), Christianity and Law: An Introduction, (Cambridge Univ. Press, June 2008).
  

Violence Connected To Religion Sweeps 4 Countries In Unrelated Incidents

Since Friday, in unrelated incidents in four countries around the world, deadly violence with some connection to religious disputes or religious institutions have captured the headlines. In Iraq, in two separate incidents, Shiite pilgrims were killed on their way to ceremonies honoring imam Mussa Kadhim who died 12 centuries ago. On Sunday, gunmen killed 7 pilgrims in Madin, south of Baghdad. Today in Baghdad, bombs killed 25 pilgrims heading toward a shrine, and wounded 70 others. (AFP).

In Turkey today, two bombs exploded in Istanbul killing 17 and wounding 150. While the bombings appeared to be the work of Kurdish separatists retaliating for a crackdown on the outlawed Kurdistan Workers' Party (PKK), they came just as Turkey's Constitutional Court was preparing for a key hearing in the lawsuit seeking to ban the country's ruling party for undermining the secular nature of the country. (AFP).

In India, a series of coordinated bombings in Ahmedabad on Saturday killed at least 45 people. A group called the "Indian Mujahideen" claimed responsibility for the attacks, saying they were in retaliation for a 2002 massacre of Muslims by Hindus in Gujarat. The bombings followed others one day earlier in Bangalore killing one woman. (Reuters-Sun. and Reuters-Mon.).

In the United States yesterday, a man carrying a shotgun in a guitar case entered a Knoxville, Tennessee Unitarian Universalist church and opened fire during the performance of a play by a group of children. He killed two people in the audience and wounded seven others. (New York Times). UPDATE: AP reports that the accused shooter, Jim D. Adkisson, left behind a note indicating that he had targeted the Unitarian church because he was upset with its liberal policies, including its acceptance of gays.

Westboro Baptist Church Loses Tax Appeal

In In re Tax Exemption Application of Westboro Baptist Church, (KS Ct. App., July 25, 2008), the Kansas Court of Appeals agreed with the state's Board of Tax Appeals that a pickup truck used by the Westboro Baptist Church to transport church members and signs for the church's high profile picketing of military funerals and other events is taxable personal property. The signs, in "acrimonious language", express the church's view that "God has punished and will continue to punish the United States because of the country's willingness to condone homosexuality." Kansas law grants a tax exemption to property that is used exclusively for religious purposes. Rejecting Free Exercise and Establishment Clause claims, the court concluded that the church's picketing activities have substantial amounts of political and secular content in addition to expressing religious beliefs, and thus do not qualify for the exemption.

Yesterdays Wichita Eagle , reporting on the decision, said that church officials will appeal to the Kansas Supreme Court even though only about $130 per year in taxes is at issue. Church spokesperson Shirley Phelps-Roper said that the principle of taxing religion is at stake, but that it probably did not really matter because the end of the world will come soon. (See prior related posting.)

UPDATE: In upholding the Board of Tax Appeals, the court did find that BOTA's labelling of signs as nonreligious when church members believed them to be religious was an Establishment Clause violation. However, the court found this to be harmless error.

Poll Says Many British Muslim College Students Hold Islamist Views

Today's London Telegraph and London Times Online report that a YouGov poll for the Centre for Social Cohesion shows a wide cultural gap between Muslim and non-Muslim students at British universities. 40% of Muslim students say Shariah should be introduced into British law for Muslims. 57% agreed that Muslim members of the armed forces should be allowed to opt out of operations in Muslim countries. While 53% of Muslim students say that killing in the name of religion is never justified, 28% said it was acceptable if religion was under attack and 4% said it could be justified to promote or preserve religion. One-third of Muslim students supported the establishment of a world-wide caliphate. Among non-Muslim students, 55% thought that Islam was incompatible with democracy. 40% of Muslim students opposed Muslim men and women associating freely, and 25% of Muslim students said they had little respect for gays. The report titled "Islam on Campus" says the group Hizb ut-Tahrir is responsible for much of the radicalization of Muslim students on British campuses.

Times Magazine Carries Photos of FLDS Ranch

The cover story in today's New York Times Magazine is titled Children of God. It introduces a series of 16 photos and another of 18 photos of FLDS women and children taken on July 17 and 18 by photographer Stephanie Sinclair who was was permitted access to the Yearning for Zion Ranch near Eldorado, Texas. In April, Texas authorities, concerned about polygamy and underage marriages, raided the ranch and temporarily took its children into custody. (See prior related posting.)

Muslim Women Sue McDonald's Franchise For Hiring Discrimination

Friday's Detroit News reports that two Muslim women have filed a religious discrimination lawsuit in state court against a Dearborn, Michigan McDonald's restaurant and its manager. The women, who applied for jobs at McDonald's, were told that they would not be able to wear their hijab (Muslim headscarf) while at work because it was too hot in the kitchen for the head coverings. The McDonald's in question is in the midst of many businesses that cater to Dearborn's large Arab-American population, and some of the restaurant's menu items comply with requirements for Halal food. Owners of the franchise say they have a strict policy against discrimination of any kind.

DC Historic Church Refused Request To Permit Demolition

Last year, over the church's objections, the Washington D.C. Historic Preservation Review Board in a unanimous decision (full text) voted to designate D.C. Third Church of Christ, Scientist as an historic landmark. (See prior posting.) Now, according to a Washington Post report on Friday, the Review Board has unanimously voted down the church's request that it be permitted to tear down its building and construct a new one in its place. Church officials say that the concrete building, designed by architect Araldo Cossutta, has an unwelcoming appearance, is dark inside and is expensive to heat and cool. Preservation Board chairman Tersh Boasberg criticized church leaders for failing to try to work out alternatives to demolition. Apparently church officials will now file a lawsuit challenging the Review Board's decision as a violation of the Religious Land Use and Institutionalized Persons Act.

Posting of Anti-Muslim Audio Clip Protected By Fair Use Doctrine

In Savage v. Council on American-Islamic Relations, (ND CA, July 25, 2008), a California federal district court rejected copyright infringement claims brought by radio talk-show host Michael Savage against CAIR. After Savage engaged in a four-minute anti-Muslim, anti-CAIR tirade on air, CAIR posted on its website an audio file of the relevant portion of the broadcast as well as a critique of the remarks. Savage sued, claiming that CAIR "in posting the audio clip on their website, engaged in copyright infringement in an effort to raise money for terrorism and further a terrorist conspiracy." The court held that CAIR's use of the audio clip is protected by the fair use doctrine. Savage also alleged a civil RICO claim against CAIR which the court dismissed on standing, proximate cause and pleading grounds, indicating that CAIR had substantial First Amendment defenses to the claim. However plaintiff was given leave to amend the RICO portion of his complaint. Friday's San Jose (CA) Mercury News reported on the decision.

Clergyman's Pay Dispute With Church Dismissed on First Amendment Grounds

In Jones v. Crestview Southern Baptist Church, (CO Ct. App., July 24, 2008), a Colorado state Court of Appeals dismissed a lawsuit by Baptist pastor Raymond Jones against his church for back pay allegedly due to him. The court held that "one of the issues to be resolved is whether Jones properly performed his duties as a pastor. " Determining this, the court said, would unconstitutionally entangle it in ecclesiastical matters. Similarly, the court said that adjudicating Jones' "equitable claims for unjust enrichment and quantum meruit would require determinations of the value of his services as a Baptist pastor, a matter that is largely ecclesiastical and thus not subject to court inquiry under the First Amendment."

Court Administrator Gets Partial Win In Claim for Retaliation and Discrimination

In Pucci v. Nineteenth District Court, (ED MI, July 10, 2008), a Michigan federal district judge permitted Julie Pucci, the former deputy administrator of a Michigan state court, to proceed with certain of her claims against the court's chief judge, Mark W. Somers. The federal court decision rejected Pucci's claim that the elimination of her postition as deputy administrator was motivated by Somers' religious objections to her live-in relationship with another judge on the court with whom Somers clashed. However the federal court permitted Pucci to move ahead with her First Amendment claim that her termination was in retaliation for her complaints about Somers' preaching religious beliefs from the civil court bench. The Dearborn (MI) Press & Guide reported on the decision in its Sunday edition. (See prior related posting.)

Obama's Note From Western Wall Published By Israeli Paper

When Barack Obama visited Israel during his recent foreign trip, like most visitors to the country he stopped at the Western Wall. Following a traditional custom, Obama left a note containing a personal prayer in one of the crevices in the Wall. Friday's Los Angeles Times reports, however, that in a breach of tradition, a young Orthodox Jewish student searched the Wall once Obama left and found his note. Obama's prayer for protection, wisdom and forgiveness, written on note paper from the King David Hotel, was turned over to the Israeli paper Maariv that then published it. The LA Times article contains a photo of the note.

UPDATE: Maariv's publication of Obama's note sparked outrage, and calls for a boycott of the paper and for a police investigation. Rabbi Shmuel Rabinowitz, who supervises the Western Wall, said the unauthorized removal of the note was a sacrilege. However Maariv said that Obama had submitted a copy of his note to media outlets when he left his Jerusalem hotel. (Haaretz). Meanwhile JTA reported on Sunday that the student who removed the note from the Wall went on Israel's Channel 2 television to apologize. Channel 2's religious affairs correspondent took the note and transmitted it to the Western Wall Heritage Foundation, which in turn placed it back in the Wall. [Thanks to Joel Katz for the lead.]

Reporter Charges Kenneth Copeland Ministries With Financial Improprieties

Associated Press religion writer Eric Gorski today published a long article detailing the business ventures connected with the ministry of TV evangelist Kenneth Copeland. Gorski writes:

Here in the gentle hills of north Texas, televangelist Kenneth Copeland has built a religious empire teaching that God wants his followers to prosper. Over the years, a circle of Copeland's relatives and friends have done just that.... They include the brother-in-law with a lucrative deal to broker Copeland's television time, the son who acquired church-owned land for his ranching business and saw it more than quadruple in value, and board members who together have been paid hundreds of thousands of dollars for speaking at church events.

Church officials say no one improperly benefits through ties to Copeland's vast evangelical ministry.... While Copeland insists that his ministry complies with the law, independent tax experts who reviewed information obtained by the AP through interviews, church documents and public records have their doubts. The web of companies and non-profits tied to the televangelist calls the ministry's integrity into question, they say.

Copeland's ministry is one of six being investigated by Sen. Charles Grassley. Copeland has strongly resisted Grassley's inquiries. (See prior posting.)

"Desecration of Eucharist" Charged In Incidents At Two Universities

In the history of the Catholic Church, "desecration of the host" is a form of sacrilege and charges of descration were a pretext for massacres of Jews in the Middle Ages. (Background). Over the last month, charges of desecrating the Eucharist-- in circumstances rather different from the historical precedents-- have come to the fore in two related incidents at universities in two states. As reported by WFTV, this all began at a June 29 Mass on the campus of the University of Central Florida. Student Senator Webster Cook, instead of immediately consuming the Eucharist handed to him as required by Catholic doctrine, took it back to his seat to show to a non-Catholic friend who was curious. Cook says someone tried to physically stop him from doing this. A week later, Cook returned the wafer in a plastic bag after receiving outraged e-mails from Catholics objecting to his desecration of the Eucharist. (WFTV). Then, according to the Orlando Sentinel, on July 17, Student Senate began impeachment proceedings against Cook, based not on his taking the Eucharist, but on his falsely representing himself as a student government officer at the service.

Meanwhile, in early July according to the Washington Times, a University of Minnesota Morris biology professor, Paul Z. Myers, used his blog to support Cook, asking in this post for his readers to send him (Myers) a consecrated Communion wafer for display. Last Thursday in this post, Myers displayed the Communion wafer pierced with a rusty nail tacked to pages torn from the Quran and some pages from Richard Dawkins The God Delusion. This led Catholic League for Religious and Civil Rights president Bill Donohue to file a complaint against Myers with the University of Minnesota, asserting that his posting amounted to a bias incident under University rules. (Catholic League July 24 release.) However University Chancellor Jacqueline Johnson said in a letter in response that academic freedom permits faculty "to speak or write as a public citizen without institutional discipline or restraint…." (Catholic League release, July 25).

In yet another development, Prof. Myers appeared on a Houston radio station on July 11 to complain in his own strong language about attacks against him by Catholic League's Donohue. In response to this, a delegate to the upcoming Republican National Convention has asked for the GOP to provide additional security so Catholics can worship without fear of violence. (Catholic Online, July 12). The request came despite the fact that Morris, MN is over 170 miles from Minneapolis- St. Paul. [Thanks to Scott Mange for the original lead on this.]

Los Angeles Sees Rise In Hate Crimes, Including Religiously Motivated Incidents

According to an AP story yesterday, hate crimes rose significantly in Los Angeles County, California last year, even though the overall crime rate dropped. A majority of the hate crimes were racially motivated. However, 105 of the 763 hate crimes reported in 2007 were religiously motivated-- with three-quarters of these directed against Jews. This amounts to a 17% increase in religiously motivated hate crimes for the year. Some 111 hate crimes were based on sexual orientation, mostly directed against gay men. The full text of the 2007 Hate Crime Report compiled by the Los Angeles Human Relations Commission is available online.

RLUIPA Challenge To Zoning Denial For Counselling Center Fails

In Calvary Temple Assembly of God v. City of Marinette, Wisconsin, 2008 U.S. Dist. LEXIS 55500 (ED WI, July 21, 2008), a Wisconsin federal district court rejected a RLUIPA challenge brought by a church that wanted a special exemption to locate a professional counselling center on land next to its church building. The City of Marinette concluded that the proposed faith-based counselling center would be a "professional office," a use not permitted in areas zoned residential. The court held that it need not decide whether the counselling center would be a "religious exercise" under RLUIPA because, even if it was, the church failed to show that the zoning denial imposed a "substantial burden" on its religious exercise.

Student Activity Fee Policy At Wayne State Challenged

At Wayne State University in Detroit (MI), a registered student group, Students for Life, has filed a federal lawsuit against the university challenging its policy on the spending of student activity fees. According to yesterday's Battle Creek Enquirer, last spring the the Student Council denied the group's request for $4000 to support a week of anti-abortion events because of "spiritual and religious" references, even though the group says it has no specific religious affiliation. Events included having one's picture taken with a model of a fetus. The lawsuit alleges that the funding denial amounts to unconstitutional viewpoint discrimination.

Suit Challenges Exclusion of Religious Literature From Distribution to Students

Alliance Defense Fund yesterday announced that it had filed a lawsuit in federal district court in Arizona on behalf of the First Baptist Church of Maricopa and its pastor, Jim Johnson, challenging Maricopa County school district's policy on distribution of literature by nonprofit groups. The school, after months of delay, denied Johnson's request that he be allowed to distribute a flyer on one of his church's weekly programs for high school students-- its Awana Journey 24 Club, a weekly Bible study program. School policy permits nonprofit groups to have their literature promoting various events and activities made available to students in schools. However the policy excludes literature from any sectarian organization or literature that promotes a particular religious belief or participation in religion. The complaint (full text) alleges that the denial violates plaintiffs' First and 14th Amendment rights and their rights under Arizona's Religious Freedom Restoration Act.

UPDATE: An ADF release dated Aug. 13 says that Maricopa Unified School District has reversed its position and will now permit the church's flyers to be distributed.

Senate Judiciary Committee Holds Hearings on Polygamous Sects

The U.S. Senate Judiciary Committee has posted the testimony presented by eight witnesses at yesterday's hearings on Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response. The hearings, which coincided with Utah's Pioneer Day, received wide coverage in the media. Some of the most extensive coverage appeared in yesterday's Deseret News , in the Salt Lake Tribune and at CNN. Senate majority leader, Harry Reid, who is a convert to Mormonism and the Senator who has led the call for hearings and the creation of a federal task force, told the Senate panel:

We do honor our pioneer ancestors by condemning those who have wrongfully cloaked themselves in the trappings of religion to obscure their true criminal purposes.... I am here to tell you that polygamist communities in the United States are a form of organized crime.... The most obvious crime being committed in these communities is bigamy, child abuse — teen and pre-teen girls are forced to marry older men and bear their children. But the criminal activity that goes on in these places is far broader. Witnesses at this hearing will describe a web of criminal conduct that includes welfare fraud, tax evasion, massive corruption and strong-arm tactics to maintain the status quo.

(See prior related posting.)

Pennsylvania Supreme Court Affirms Invalidation of Ethnic Intimidation Law

On Wednesday, the Pennsylvania Supreme Court issued a 2-sentence per curiam order affirming last year's decision by a Pennsylvania appellate court striking down amendments to the state's ethnic intimidation law. The law was amended in 2002 to add sexual orientation and several other categories to its previous coverage of crimes committed because of race, religion or national origin. In Marcavage v. Rendell, (PA Sup. Ct., July 23, 2008) the state Supreme Court agreed that the 2002 amendments violated the state constitution's ban on amending bills during the legislative process to change their original purpose.

The lawsuit challenging the statute was brought by several Christian evangelists, who were members of Repent America. A press release was issued by one of their attorneys, the Foundation for Moral Law. FML head, former Alabama Supreme Court Chef Justice Roy Moore, said: "We are very happy that the Pennsylvania Supreme Court has ruled in our favor to stop the Governor and a group of corrupt politicians from sneaking a 'hate crimes' bill through the Pennsylvania legislature. Preaching to homosexuals about the sin of sodomy should not be made a 'thought crime' in Pennsylvania or any other state."

Suburban Seattle Residents Sue To Prevent Church From Hosting Tent City

The Seattle (WA) Times on Wednesday reported on a lawsuit filed earlier this month seeking to prevent religious leaders on suburban Mercer Island from hosting Tent City 4, an encampment for the homeless. The city of Mercer Island granted a temporary use permit for the encampment to set up at the Mercer Island United Methodist Church from August 5 to November 10. Greg Asimakoupoulos, president of the Mercer Island Clergy Association, said: "We don't want to be viewed as the suburb of the city that's blind to the needs of people of metropolitan Seattle." However a group of Mercer Island neighbors, calling themselves the Mercer Island Citizens for Fair Process, are seeking an injunction arguing that Tent City 4 will be a nuisance. They also argue that their rights under the due process clause were violated. A hearing on a temporary restraining order is set for Monday.

UPDATE: On July 28, a King County (WA) judge denied a request for a restraining order to prevent Tent City 4 from coming to Mercer Island. According to the Mercer Island Reporter, Judge Michael J. Fox said that plaintiffs had not shown a likelihood of success on the merits at trial.

11th Circuit Holds Parental Rights Can Trump Child's 1st Amendment Protections

Yesterday in Frazier v. Winn, (11th Cir., July 23, 2008), the U.S. 11th Circuit Court of Appeals handed down a decision on the clash between parental rights to control the upbringing of their children and a child's own First Amendment rights. While the case focused on free speech issues, it presumably impacts similar Free Exercise clashes. At issue was a facial challenge to Florida's statute that provides a student must be excused from reciting the Pledge of Allegiance upon written request of his or her parent. In the case, the district court had concluded that the statute unconstitutionally "robs the student of the right to make an independent decision on whether to say the pledge."

The Court of Appeals disagreed, saying:

The rights of students and the rights of parents—two different sets of persons whose opinions can often clash—are the subject of a legislative balance in the statute before us. The State, in restricting the student’s freedom of speech, advances the protection of the constitutional rights of parents: an interest which the State may lawfully protect.... Although we accept that the government ordinarily may not compel students to participate in the Pledge... we also recognize that a parent’s right to interfere with the wishes of his child is stronger than a public school official’s right to interfere on behalf of the school’s own interest....

Even if the balance of parental, student, and school rights might favor the rights of a mature high school student in a specific instance, Plaintiff has not persuaded us that the balance favors students in a substantial number of instances—particularly those instances involving elementary and middle school students—relative to the total number of students covered by the statute.... We therefore decline to validate Plaintiff’s facial challenge.

The Court of Appeals also held unconstitutional that the portion of Florida's statute that requires students who are excused from reciting the pledge to nevertheless stand while others recite it. The AP reports on the court's decision. [Thanks to How Appealing for the lead.]

AU Seeks Investigation of Church-Sponsored Program At Army Base

In a letter yesterday (full text) to the Department of Defense's Acting Inspector General, Americans United for Separation of Church and State called for an investigation of the "Free Day Away" program at Fort Leonard Wood (MO) Army base. (AU Release). AU's letter alleges that soldiers at Fort Leonard Wood are given only two days off during their 8 weeks of basic training. One of these is "Free Day Away", sponsored by Tabernacle Baptist Church of Lebanon, MO. A church bus picks up trainees at the military base and takes them for a day of recreation which ends with a required church service during which soldiers are urged to accept Jesus as their personal savior. AU says: "Trainees are given the impression that the event is sponsored by the Army and that they must attend. If they do not attend, they have to remain on the base and continue with training, while those who attend the event have a break for the day." AU says the program involves unconstitutional endorsement of religion and coercion of religious belief.

10th Circuit: Exclusion of Pervasively Sectarian Schools From Scholarships Is Invalid

In an important decision interpreting the scope of the Supreme Court's 2004 Locke v. Davey decision, yesterday the 10th Circuit Court of Appeals held that Colorado acted unconstitutionally in excluding from its college scholarship program students who attend "pervasively sectarian" institutions. In Colorado Christian University v. Weaver, (10th Cir., July 23, 2008), the court found that the exclusion "expressly discriminates among religions without constitutional justification, and its criteria for doing so involve unconstitutionally intrusive scrutiny of religious belief and practice."

The court analyzed extensively Colorado's statutory criteria for determining that an institution is not "pervasively sectarian". Some of the criteria focus on whether students, faculty, trustees or funding sources are predominately of "one particular religion". The court observed that this requires government officials to decide which groups of believers count as a single religion. For example, do all Christians count as a single religious group?

The court held that "if the State wishes to choose among otherwise eligible institutions, it must employ neutral, objective criteria rather than criteria that involve the evaluation of contested religious questions and practices." The court said it did not need, in this case, to decide the exact level of scrutiny that should be applied when states discriminate in funding between denominations because in this case "the State scarcely has any justification at all." Yesterday's Examiner reported on the decision. [Thanks to Steve Sheinberg for the lead.]

UPDATE: On Aug. 1, Colorado's Department of Higher Education announced that the state will not appeal the 10th Circuit's decision to the U.S. Supreme Court. [Thanks to How Appealing for the lead.]

Belarus Fines Organizer of "Too Small" Bible Discussion Group

The Belorussian Law on Freedom of Conscience and Religion provides that a new religious organization must have at least 20 members over the age of 18 to receive government recognition. BosNewsLife reported yesterday that Valentin Borovik was convicted of violating this law by the Grodno Regional Court after he organized an informal Christian Bible discussion group of less than 20 people. On July 9, Borovik was fined the equivalent of (US) $150, despite his argument that he was not intending to form a new religious group.

4th Circuit Upholds City Council Mandate For Non-Denominational Invocations

Yesterday in Turner v. City Council of Fredericksburg, (4th Cir., July 23, 2008), the U.S. 4th Circuit Court of appeals upheld the policy of Fredericksburg, Virginia's city council requiring prayers which open its sessions to be nondenominational. In an opinion by former U.S. Supreme Court Justice Sandra Day O'Connor, sitting by designation on the case, the court held that legislative prayer is government speech. The city's policy was challenged by Hashmel Turner, a Baptist minister who was elected to city council. When his turn to offer an invocation came, Turner wanted to close by praying in the name of Jesus. The court held that council's policy precluding such prayer violates neither the Establishment Clause nor Turner's free exercise rights. The court concluded:

Turner was not forced to offer a prayer that violated his deeply-held religious beliefs. Instead, he was given the chance to pray on behalf of the government. Turner was unwilling to do so in the manner that the government had proscribed, but remains free to pray on his own behalf, in nongovernmental endeavors, in the manner dictated by his conscience. His First Amendment and Free Exercise rights have not been violated

In a release praising the decision, People for the American Way said that the ruling "is a vindication of the constitutional principle that the government must not take sides when it comes to religion." On the other hand, the Rutherford Institute which had represented Turner issued a release criticizing the decision, saying: "If the government can censor speech on the grounds that it is so-called 'government speech,' it will not be long before this label becomes a convenient tool for silencing any message that does not conform to what government officials deem appropriate." The Institute said it would ask the U.S. Supreme Court to review the decision.

Cult Leader Says Lying Naked With Girls Is Religious Healing Practice

In Ranton, New Mexico last Friday, Wayne Bent was indicted for inappropriately touching three minor girls while "lying naked" with them. Tuesday's Raton Rage reports that Bent, known to his followers as Michael Travesser, is the leader of The Lord Our Righteousness Church. He was arrested in May after police and social workers removed three teenagers from his Strong City compound. (See prior posting.) Bent (Travesser) claims that his practice of lying with naked children is a "religious healing practice" and does not have sexual connotations. Bent's attorney has moved to have the indictment dismissed.

Al-Aqsa TV Promotes Extremism Via Children's Show That Reaches Britain

Yesterday's London Telegraph reports on the children's show, Tomorrow's Pioneers, broadcast on the al-Aqsa television channel, a satellite channel set up by Hamas that broadcasts from the Gaza Strip. (Background on channel.) The channel has a substantial following in the Arab world, and can be received in Britain. The show currently features a Bugs Bunny type character named Assud who often promotes radical Islamic stances. In one episode Assud says he will kill and eat all Danish people in retaliation for caricatures of the Prophet Muhammad which appeared in Danish newspapers. In a July 11 episode, Assud is seduced by Satan into stealing money from his father. The studio audience and a phone-in audience as well discuss whether Assud's hands should be cut off for the offense. Eventually the host rules that only Assud's ear should be cut off. MEMRI has video clips with English subtitles and English language transcripts of this and several other episodes. YouTube also has a number of clips of the program with English subtitles. A spokesman for Britain's Association of Muslim Schools says the organization is opposed to any shows that incite violence.

HHS Considers Expanding Doctors' Rights of Conscience

The Department of Health and Human Services (HHS) is proposing to expand the rights of doctors who have religious objections to prescribing contraceptives that can cause the expulsion of a fertilized egg. This week's US News & World Report says that HHS is circulating to members of Congress a draft of rules that would prohibit federally funded medical facilities—including teaching hospitals and Planned Parenthood clinics—from refusing to hire doctors who object to dispensing such contraceptives. It is already illegal to refuse to hire doctors who object to performing abortions. These rules would protect those who believe that life begins at the moment of fertilization, even if the fertilized egg is not yet implanted in the womb. The Christian Post reports that on Monday, 104 members of the House of Representatives signed a letter to President Bush urging him to stop the new rules. Among other things, they object to the fact that the new rules would pre-empt state laws requiring hospitals to make emergency contraception available for rape victims.

UPDATE: Here is the full text of the draft rules being considered. [Thanks to Blog from the Capital for the lead.]

Texas Grand Jury Indicts Jeffs and Other FLDS Members

Yesterday in Eldorado, Texas a state grand jury issued indictments against former FLDS leader Warren Jeffs and five others, apparently based on evidence seized during a widely-publicized raid on the religious group's YFZ Ranch in April. AP and the San Angelo (TX) Standard-Times report that Jeffs and four others were charged with sexually assaulting girls under 17, and one of Jeffs' four followers was also charged with bigamy. A sixth individual was charged with failing to report child abuse. Jeffs who is already in jail has been convicted of related charges in Utah and is awaiting trial in Arizona. (See prior related posting.)

DoD Inspector General Finds Religious Discrimination In Tenenbaum Case

The Project on Government Oversight yesterday made available a July 13 Department of Defense Inspector General's Report (full text) on the case of Army employee David Tenenbaum. In a series of events beginning in 1997, Tenenbaum, an Orthodox Jew, lost his access to classified information and had his security clearance revoked on the basis of unsubstantiated allegations that he was spying for the state of Israel. The IG's report found that Tenenbaum was the subject of inappropriate treatment by investigative officials who used an investigation to upgrade his security clearance "as a ruse for a counterintelligence investigation." The Report concluded that:

Mr. Tenenbaum was subjected to unusual and unwelcome scrutiny because of his faith and ethnic background, a practice that would undoubtedly fit a definition of discrimination, whether actionable or not.

In the case, the U.S. Attorney had declined to prosecute because of insufficient evidence. Tenenbaum had brought two lawsuits alleging disparate treatment and civil rights violations. One was dismissed because defendants would need to disclose state secrets in their defense, and the other because security clearance issues were found non-justiciable. In 2003, Tenenbaum's security clearance was restored and upgraded.

EEOC Issues New Guidance On Issues of Religious Discrimination

Yesterday the EEOC issued consolidated and updated guidelines for investigating and analyzing charges of religious discrimination. New Section 12 of the EEOC Compliance Manual also contains numerous examples to help employers understand their obligations under Title VII of the 1964 Civil Rights Act. Business Week quotes an EEOC spokesman who said the new guidelines were issued as a result of a growing number of religious discrimination complaints. The number doubled between 1992 and 2006.

UPDATE: The EEOC also issed a press release, a question-and-answer fact sheet and best practices booklet along with the new guidelines. [Thanks to Melissa Rogers for the lead.]

Israeli Court Fines Recalcitrant Husband In Divorce Proceeding

In Israel, Jerusalem's Family Court has ruled that a wife may recover damages for mental anguish when a husband refuses to grant her a religious divorce ("get"). Haaretz today reports on the decision which awarded the damages after a husband refused to follow orders of a Rabbinic Court to grant his wife a divorce. Judge Ben-Zion Greenberger ruled, however, that damages could also be awarded even where women did not have a Rabbinic Court order.

Pastor's Candidacy For City Council Creates Church-State Concerns

The Arizona Republic reports on issues raised by the candidacy of Kevin Hartke for Chandler, Arizona City Council. Hartke is pastor of Trinity Christian Fellowship. He was originally appointed to Council to fill the seat of a member who was called to active military duty. A fellow-clergyman, Rev. Tom Rakoczy of Chandler First Assembly of God Church, has asked Hartke to remove a campaign sign that was near Rakoczy's church out of concern that it might appear that his church was endorsing Hartke. Also, Hartke says it is difficult to separate his two roles, especially when congregants approach him at Sunday services about municipal issues.

Suit Challenges Illinois Grant To Help Rebuild Historic Church

In Chicago last week, atheist activist Rob Sherman filed a state court lawsuit against Illinois Governor Rod Blagojevich and other state officials challenging a $1 million state grant to help rebuild Chicago's historic Pilgrim Baptist Church. The church was severely damaged by fire in 2006. The state grant is to go toward rebuilding the church's administration building that housed a school, and historical documents.(See prior posting.) The complaint (full text) alleges that while the grant agreement provides state funds are not to be used to further sectarian activities, the state-funded portion will be identified with the church, the grant will allow the church to divert $1 million in its own funds toward the promotion of religious activities, and there is no meaningful way to segregate the non-religious from the religious uses of the building. It also alleges that the agreement provides no enforcement mechanism after two years. The suit alleges violations of the Establishment Clause as well as various provisions of the Illinois Constitution that effectively bar expenditures for religious purposes.

Today's Chicago Tribune reports that Sherman's lawsuit comes after Sherman received a large inheritance from his mother last year. This allows him to operate on more than the shoestring budget that characterized his earlier challenges to government favoritism for religion.

UPDATE: The AP reports that on Friday, a Sangamon County circuit judge approved plaintiff's moving ahead with his taxpayer suit against the state Comptroller and the Department of Commerce and Economic Opportunity, but required that Gov. Blagojevich be dropped as a defendant.

Court Says Historic Preservation Laws Invalidate Permit For Church Parking Lot

In Topeka, Kansas yesterday, a Shawnee County district judge ruled that Topeka City Council violated state historic preservation laws when it approved an application by Grace Episcopal Cathedral to build a parking lot on a site listed on the Register of Historic Kansas Places. Today's Topeka Capital-Journal reports that the ruling comes in a challenge to the city's action filed by Friends of Bethany Place who argued that historic preservation laws apply to trees on the property as well as buildings. (See prior posting.) The church insists that denying it permission to build violates its free exercise rights.

Court Invalidates Exclusion of Chaplains From Court Martial Panels

Article 25 of the Uniform Code of Military Justice provides that any commissioned officer on active duty is entitled to serve on a court martial panel. However all branches of the armed forces have a policy of exempting chaplains from serving on courts martial. The Army also excludes medical personnel and inspectors general. (Army Regulation 27-10, Chapter 7). In United States v. Bartlett, (US Ct. App. A.F., July 7, 2008), the U.S. Court of Appeals for the Armed Forces held that Army regulations excluding chaplains, medical personnel and inspectors general from serving are invalid. However, the court refused to order a new sentencing hearing for appellant, finding that the error involved was harmless. The ruling was handed down after the court granted discretionary review in the case of an Army Lieutenant Colonel convicted of unpremeditated murder and sentenced to 25 years in prison and dismissal from the Army. Judge Erdmann concurred, but took issue with language in the majority decision suggesting that improper court member selection would never be considered to be "structural error". [Thanks to Charlotte E. Hunter for the lead.]

Senate Judiciary Committee Will Hold Hearings on Crimes Associated With Polygamy

The U.S. Senate Judiciary Committee will hold a hearing this Thursday on "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response." (Official witness list.) Today's Salt Lake Tribune reports that attorney Rod Parker, a spokesman for the polygamous FLDS Church, has complained that FLDS members have not been given equal time to testify. FLDS spokesman Willie Jessop and several other FLDS members will observe the hearing, and an official FLDS statement will be presented to be read into the record.

New Hampshire School District Sued Over Flyer Distribution Policy

In Concord, New Hampshire, Patricia Regan who is assistant director of her local church's Vacation Bible School, yesterday filed suit in federal district court challenging the flyer distribution policy of the Hudson (NH) School District. In her complaint (full text), Regan alleges that the school district allows nonprofit community organizations to distribute flyers to be sent home with students through the Principal's office so long as the flyers contain an appropriate disclaimer. However, the schools do not permit flyers containing religious content to be distributed. The lawsuit, announced yesterday by Alliance Defense Fund, claims that the exclusion of religious material violates plaintiff's First and Fourteenth Amendment rights.

McCain, Obama To Make First Joint Appearance At Saddleback Church Forum

According to yesterday's Christian Post, the first joint appearance by John McCain and Barack Obama will be on August 16 at Lake Forest, California's Saddleback Church. The occassion is the Saddleback Civil Forum on Leadership and Compassion, sponsored by Faith in Public Life. Each candidate will appear separately and be questioned for about one hour by Pastor Rick Warren on how they make decisions and on faith and on moral issues such as poverty, AIDS, climate change and human rights. Warren, who wrote the best-selling book "The Purpose-Driven Life", personally invited each candidate to the Forum. Also reporting on the planned event, yesterday's New York Times quoted Warren as saying: "Since I'm their friend, I’m not going to give them any gotcha questions."

The Forum, which will be open to the media, will be the only joint appearance by the two candidates before their parties' respective national conventions. At the same time, Warren will convene an interfaith meeting of some 30 Christian, Jewish and Muslim leaders to discuss joint social projects. The next day, Warren will deliver a special sermon at Sunday services entitled "Making Up Your Mind: Questions to Consider before the Election."

Jehovah's Witnesses Allegedly Being Targed By Russian Authorities

The Other Russia reported yesterday that government authorities in a number of Russian regions have increasingly moved against members of the rapidly-expanding Jehovah's Witness faith. In Yekaterinburg, Federal Security Service (FSB) agents seized literature that allegedly incited hatred and promoted the exclusivity of the Jehovah's Witness faith. In the Rostov Oblast, Jehovah's Witnesses are being tried for "extremism" under Article 282 of the Russian Criminal Code that prohibits "Incitement of National, Racial, or Religious Enmity". In Murmansk, Jehovah's Witnesses were prevented from holding services scheduled for a stadium under a law that prohibits using sporting facilities for religious purposes.

UPDATE: A Forum 18 report on July 22 says that Russian authorities have prevented about eight Jehovah's Witness congresses being held this summer while about thirty have gone ahead.

Recently Available Prisoner Free Exercise Cases

In Meyer v. Wisconsin Department of Corrections, 2008 U.S. Dist. LEXIS 51362 (WD WI, July 3, 2008), a Wisconsin federal distict court permitted an inmate who claimed to be an "hereditary shaman" to proceed on his RLUIPA claim alleging that his religious exercise was substantially burdened when officials refused his request for prayer beads.

In Copenhaver v. Burnett, 2008 U.S. Dist. LEXIS 53040 (ED MI, July 11, 2008), a Michigan federal district judge agreed with a magistrate's recommendation to dismiss a Jewish inmate's claim that in 2006 he was prevented from celebrating a Passover Seder. In ordering dismissal the judge accepted some, but not all, of the magistrate's conclusions. UPDATE: The Magistrate's recommendations are at 2007 U.S. Dist. LEXIS 97373.

In Brown v. D.O.C. PA, (3rd Cir., Feb 19, 2008), decided several months ago, the U.S. 3rd Circuit Court of Appeals agreed with the district court that an inmate had not shown that he was placed in solitary confinement in retaliation for his religious beliefs. It also rejected plaintiff's First Amendment claim arising from authorities taking from him a newspaper published by the Five Percenters (Nation of Gods and Earths).

Ministerial Exception Held To Apply To Title IX Cases

A decision handed down several months ago by a Pennsylvania federal district court in a long-running sex discrimination case has just become available on Lexis. In Petruska v. Gannon University, the 3rd Circuit in 2006 held that the "ministerial exception" prevented a female chaplain at Gannon University, a diocesan college, from bringing a Title VII employment discrimination claim that she was demoted solely because she was a woman. (See prior posting.) The Supreme Court denied cert. Then Ms. Petruska attempted to amend her complaint to allege discrimination in violation of Title IX which applies to colleges receiving federal financial assistance. Now in Petruska v. Gannon University, 2008 U.S. Dist. LEXIS 54884 (WD PA, March 31, 2008), the court held that the ministerial exception applies equally to claims under Title IX.

Welsh Mayor Wants Town's Ban on "Life of Brian" Lifted

In Britain, Sue Jones-Davies, mayor of the Welsh town of Aberystwyth, wants her town to lift its nearly 30-year old ban on the Monty Python movie, Life of Brian. BBC News reported the story on Saturday. Long before becoming mayor, Jones-Davies was in the movie, playing a revolutionary named Judith Iscariot. She was featured in a nude scene with the film's hero, Brian. A number of areas in Wales banned the movie as blasphemous in 1979. Urging that the ban be lifted, Jones-Davies said: "I would like to think that any religion would have the generosity to see the film for what it is, which is a comedy." [Thanks to Scott Mange for the lead.]

Bhutan's New Constitution Signed-- Deals With Religious Freedom and Heritage

According to Zee News, the country of Bhutan on Friday formally became a democratic constitutional monarchy as King Jigme Khesar Namgyel signed the country's new Constitution (full text). The new Constitution, which calls on the government "to promote those conditions that will enable the pursuit of Gross National Happiness" (Art. 9, Sec. 2), has been endorsed by the country's Parliament. The new document contains a number of provisions relating to religion and freedom of conscience.

Art. 7, Sec. 4 provides: "A Bhutanese citizen shall have the right to freedom of thought, conscience and religion. No person shall be compelled to belong to another faith by means of coercion or inducement." Art. 15, Sec. 3 provides: "Candidates and political parties shall not resort to regionalism, ethnicity and religion to incite voters for electoral gain."

Article 3 of the new Constitution deals with "Spiritual Heritage". It provides that "Buddhism is the spiritual heritage of Bhutan," and that the king is the "protector of all religions in Bhutan." The king appoints the Je Khenpo, the head of the country's central monastic body. Art. 3, Sec. 3 also provides: "It shall be the responsibility of religious institutions and personalities to promote the spiritual heritage of the country while also assuring that religion remains separate from politics in Bhutan. Religious institutions and personalities shall remain above politics." Implementing this, the country's election law makes Buddhist monks ineligible to run for office or vote. (See prior posting.) More background is on the website of the Constitution Drafting Committee.

Colorado Church Group Seeking Ballot Measure On Moment of Silence

The Colorado Secretary of State's office last week approved the circulation of an initiative petition calling for schools to provide five minutes for private meditation at the beginning of each school day. According to the Denver Post (July 17), the petition was filed by Bishop Kevin Foreman and his 2-year-old Final Harvest Christian Center in Aurora. In order to get the proposal on the November ballot, 76,000 signatures must be collected by August 4. According to 9News yesterday, the Interfaith Alliance of Colorado released a statement opposing the proposal, saying "we believe public schools are for education and not religious worship, rituals, or indoctrination." Some teachers are concerned about the loss of instructional time that would be created by such a long period for prayer each day.

Dobson Says He May Endorse McCain

In remarks scheduled for broadcast on his radio show today, conservative Christian leader James Dobson says he is considering reversing his former position and endorsing Sen. John McCain for president. In a statement given to AP, Dobson said: "Barack Obama contradicts and threatens everything I believe about the institution of the family and what is best for the nation. His radical positions on life, marriage and national security force me to reevaluate the candidacy of our only other choice, John McCain." (See prior related posting.)

Today Is Anniversary of Scopes Trial

Today, according to Wired, is the 83rd anniversary of the end of the famous "Scopes Monkey Trial" in which high school teacher John Scopes was found guilty of violating a Tennessee law against teaching evolution. The Advocate yesterday reviews a new account of the trial written for young adults in free verse form. Ringside 1925 by Jen Bryant is an account of the trial from the persepctives of nine people watching it. It was published by Knopf Books for Young Readers in February 2008.

Georgia Church Wins Partial RLUIPA Victory

In a case decided several months ago, but which has just become available, a Georgia federal district court upheld a claim by a church that a 2004 amendment to Marietta, Georgia's zoning ordinance violates the "equal terms provision" of the Religious Land Use and Institutionalized Persons Act. In Covenant Christian Ministries, Inc. v. City of Marietta, Georgia, 2008 U.S. Dist. LEXIS 54304 (ND GA, March 31, 2008), the court concluded that removing religious uses as permitted uses in residential districts, however, had not been shown to substantially burden plaintiffs' free exercise of religion, nor did it violate the nondiscrimination provisions of RLUIPA. (See prior related posting.)

NYT Magazine Profiles DNC Official In Charge Of Religious Outreach

Today's New York Times Magazine, in a long article titled Can Leah Daughtry Bring Faith to the Party?, profiles Democratic National Committee Chair Howard Dean's chief of staff, Leah Daughtry. Daughtry, who is also a part-time Pentecostal preacher, was placed by Dean in charge of this year's Democratic convention. Part of her role as Dean's chief of staff has been to attract religious believers to the party. She created a team, known as Faith in Action, to reach out to religious voters. She also set up a 60-member Faith Advisory Council.

Texas Court Upholds Firing of Pastors By Church Elders

Friday's Houston Chronicle reports that a state district court judge has agreed with a special master's findings in a long-running internal dispute at the Korean Christian Church of Houston. The church split last September in a dispute over finances. In November, church elders fired youth pastor Seung Woong Ok. In response, senior pastor,Paul C. Park said he was dismissing the board of elders. The Board of Elders immediately fired Park. However the pastors refused to step down. The Elders sought a temporary restraining order, while the pastors called a meeting of supportive congregants who voted to oust the Elders. The dispute led to disruption at worship services and police were called in several times. In December, the Elders excommunicated 100 members and 20 were warned that the police would arrest them for criminal trespass if they came onto church property. Since then, the competing groups have held separate Sunday services at different locations.

Both sides asked the court to step in. Special Master E. Michelle Bohreer decided that the Elders had authority to fire the pastors and that the meeting Park organized to dismiss the elders was invalid. In the underlying dispute over finances, the special master said that the church is not obligated to issue an annual financial report, allow inspection of its records or submit to a financial audit. Those findings were approved by District Judge Elizabeth Ray who ordered that the pastors be enjoined from coming within 500 feet of the church and that they pay the prevailing parties' attorneys fees. The attorney representing a group of excommunicated deacons says he will ask the court to enter a final judgment so an appeal can be filed.

UPDATE: The Houston Chronicle reports that a final judgment was issued on Oct. 31.

Messianic Jewish Prisoners Claim Discrimination In Denial of Kosher Meals

At Mansfield, Ohio's Richland Correctional Institution, four Messianic Jews have filed a grievance with the Ohio Department of Rehabilitation and Correction complaining that they are denied kosher meals. In his grievance, inmate Ronald Lutz argued that the denial amounts to religious discrimination. According to yesterday's Mansfield News Journal , ODRC religious-services administrator Rev. Gary Sims says Messianic rabbis informed ODRC that kosher meals are not a basic tenet of their faith. Sims somewhat inaccurately described kosher meals as ones that are "blessed and sanctioned by the Jewish community for those with Jewish faith, so the food is not contaminated." Messianic Jews are classified by the Ohio prison system as Protestants, and only Jews are allowed requests for kosher meals in Ohio prisons.

Italian High Court Says Rastafarians Protected In Marijuana Use

Earlier this month, in a ruling that breaks new ground in Europe, Italy's high court-- the Court of Cassation -- reversed the conviction of a Rastafarian for trafficking in marijuana. According to a July 10 report by Reuters, the court ruled that Rastafarians should be given special consideration in determining how much marijuana exceeds requirements for personal use since the drug is considered by Rastafarians to be a sacrament. Drug War Chronicle says that possession of small amounts of marijuana is not a crime in Italy. According to London's Independent, Italian Interior Ministry officials say the decision undercuts the country's drug laws.

China Imposes Special Rules For Sports Chaplains At Olympics

The Canadian Press reported Friday on the special rules imposed by the government of China on sports chaplains who traditionally accompany athletes to Olympic games. Daily religious services will be available to athletes at next month's Olympics, but they will be run by Chinese religious leaders and seminary students. At other Olympic games, members of the international confederacy of sports chaplains have officiated, however foreign chaplains are not being used this year. China generally prohibits its citizens from attending religious services conducted by foreigners. China is printing 100,000 copies of the New Testament with special Olympic logos; foreigners are restricted in bringing religious materials into the country. Some countries are sending official chaplains with their Olympic teams. Six unofficial chaplains from different countries (including the U.S. and Canada) will also be in China "on call" if their services are needed for counselling. (See prior related posting.)

Texas Board Gives Final Approval To Bible Course Guidelines

The Abilene (TX) Reporter News and the Dallas Morning News both report that on Friday, the Texas State Board of Education gave final approval to guidelines for elective courses on the impact of the Hebrew Bible (Old Testament) and New Testament on the History and Literature of Western Civilization. (Full text of Guidelines and summary of public comments). By a vote of 10-5, the Board adopted general guidelines rather than the more specific ones urged by some state legislators concerned with the constitutionality of the courses. The Dallas Morning News reported earlier this month that state Attorney General Greg Abbott told the state board that the proposed guidelines appeared to comply with the First Amendment's requirement of neutrality, but that he could not say whether any particular course would be constitutional without reviewing the details of how the guidelines are implemented in the course. Because the guidelines received a two-thirds vote, schools will be able to put courses in place for this fall. (See prior related posting.)

Website Tracks Religious Rhetoric In Presidential Campaign

Earlier this month, the Berkley Center for Religion, Peace & World Affairs launched it Faith 2008 database. The website tracks religious rhetoric in the Presidential campaign by candidate and theme. The site also gives historical and international examples of religious rhetoric in politics.

Counsellor Fired For Refusing Client Seeking Advice On Same-Sex Relationship

Alliance Defense Fund announced last Tuesday the filing of a religious discrimination lawsuit on behalf of Marcia Walden, a professional counsellor whose employer was under contract to provide counselling services to employees of the federal Center for Disease Control. The complaint (full text) filed in federal district court in Atlanta alleges that Walden was fired after she refused on religious grounds to counsel a client on repairing a troubled lesbian relationship. Doing so would have violated Walden's Christian religious beliefs. Walden instead referred the client to a fellow counsellor who had different religious views. The suit alleges that the action taken against Walden violates her speech, free exercise and due process rights, the Religious Freedom Restoration Act, and Title VII of the 1964 Civil Rights Act.

Britain to Sponsor Muslim Scholars For Study On Islam and Western Values

BBC News reported yesterday that the British government will fund creation of a group of scholars, to be hosted by Oxford and Cambridge Universities, who will examine issues relating to Islam's role in Britain and the obligations of Muslims as British citizens. Communities Secretary Hazel Blears said government support for the project grew out of requests by the Muslim community in attempts to build alliances against extremism and teach young Muslims that their faith is compatible with wider shared values. BBC News also published a longer analysis of the new government initiative, saying: "Many scholars agree that they have long needed a helping hand in collating and disseminating their views on what it is to be a Muslim in the West." Glasgow's Herald reports that the panel will include 20 leading Muslims and is expected to complete report over the next academic year. [Thanks to Edward Still for the lead.]

Appeal to 6th Circuit Filed in Kentucky Baptist Homes Case

An appeal has been filed with the 6th Circuit in Pedreira v. Kentucky Baptist Homes, Inc. In the case, the district court dismissed on standing grounds an Establishment Clause challenge to use of state funds to pay for placing children in a faith-based facility. (See prior posting.) Americans United and the ACLU, representing appellants, filed a brief (full text) in support of the appeal. A release yesterday from AU and an article yesterday at Gay.com report on the filing of the appeal.

Village Officials Question Conversion of Expensive Home Into a Family Church

In Lake Bluff, Illinois, George Michael says he has converted his $3 million home into a church and has received a state property tax exemption that saves him some $80,000 per year. According to Wednesday's Chicago Tribune, Michael says he was ordained online and began his Armenian Church so his disabled wife would not have to travel to Sunday services. A few close friends and family members apparently attend the church. Last year Michel transferred ownership of the house from his wife's name to the name of the Armenian Church of Lake Bluff, and opened a bank account for the church. Local officials, unhappy about the loss of tax revenue, question whether the residence is really being used as a church. They say if it is, Michael should have obtained a special use permit from the village. Operating without a permit is punishable by a fine of up to $500 per day. The village has sent Michael a bill for $115,000 in fines. It also plans to appeal the state's grant of a tax exemption to Michael.

UPDATE: The July 23 Lake Forester reported that on July 6, an Administrative Law Judge removed the religious tax exemption that had been granted by the Illinois Department of Revenue for the Michael's property.

3rd Circuit Upholds Arrest of Disruptive Protesters At OutFest

In Startzell v. City of Philadelphia, (3rd Cir., July 15, 2008), the U.S. 3rd Circuit Court of Appeals rejected claims by a members of a Christian group, Repent America, that their free speech rights were infringed when they were arrested by Philadelphia police for disorderly conduct and refusal to obey police orders at the gay pride OutFest in 2004. The court also rejected plaintiffs' equal protection, 4th Amendment and conspircacy claims. Repent America, founded by Michael Marcavage, believes that homosexuality is a sin and that "it is their duty to God to warn others about the destructiveness of sin through public proclamation of the gospel of Jesus Christ." The court's majority opinion by Judge Sloviter held:

The right of free speech does not encompass the right to cause disruption, and that is particularly true when those claiming protection of the First Amendment cause actual disruption of an event covered by a permit. The City has an interest in ensuring that a permit-holder can use the permit for the purpose for which it was obtained. This interest necessarily includes the right of police officers to prevent counter-protestors from disrupting or interfering with the message of the permit-holder. Thus, when protestors move from distributing literature and wearing signs to disruption of the permitted activities, the existence of a permit tilts the balance in favor of the permit-holders.

Judge Stapleton concurring argued that police acted properly because police intervened only after a member of Repent America addressed "fighting words" to an OutFest participant. Yesterday's Legal Intelligencer reported on the decision. (See prior related posting.)

Wisconsin High Court: Diocese Had No Duty To Warn Teacher's Future Employers

Hornback v. Archdiocese of Milwaukee, (WI Sup. Ct., July 16, 2008), was an appeal to the Wisconsin Supreme Court in lawsuit against the Archdiocese of Milwaukee and the Diocese of Madison for their negligent failure to warn later employers of that teacher Gary Kazmarek had a propensity to sexually abuse children. Plaintiffs were abused by Kazmarek when he later taught at a Catholic school in Louisville (KY). Plaintiffs' case against the Milwaukee Archdiocese was the stronger of the two because the Archdiocese promised victims' parents that Kazmarek would be sent to treatment and not have future contact with children, and asked parents not to report Kazmarek to police.

The Supreme Court was evenly split as to the claim against the Milwaukee Archdiocese and affirmed the Court of Appeals dismissal of the complaint. As to the Diocese of Madison, the Supreme Court unanimously affirmed the dismissal of the complaint, writing a lengthy opinion. It said in part:

Reasonable and ordinary care does not require the Diocese to notify all potential subsequent employers within dioceses and parochial school systems across the country, along with all parents of future unforeseeable victims. Requiring such notification under these circumstances would create a vast obligation dramatically exceeding any approach to failure to warn recognized either in this state or in other jurisdictions....

[P]laintiffs in this case had virtually no relationship with the Diocese. There are
significant gaps temporally and geographically.... A decision to the contrary would create precedent suggesting that employers have an obligation to search out and disclose to all potential subsequent employers, which could include in an employment context every school in the country or beyond, all matters concerning an ex-employee's history.

Wednesday's Milwaukee Journal Sentinel reported on the decision.

Challenge To Funding of Religious Social Services Dismissed on Standing Grounds

In Freedom From Religion Foundation, Inc. v. Olson, (D ND, July 16, 2008), a North Dakota federal district court dismissed on standing grounds an Establishment Clause challenge to the use of state and county social service funds to pay for the care of children at the Lutheran-sponsored Dakota Boys and Girls Ranch. Plaintiffs claimed that religion was an inherent component of the social services provided by the Ranch. The court dismissed for lack of standing claims brought by plaintiffs both as state and municipal (county) taxpayers. Today's Chicago Tribune reports on the decision. more facts on the underlying allegations are in this prior posting.

Support Urged For Ban On US Recognition of Foreign Blasphemy Judgments

A Becket Fund release reports on remarks yesterday by its international law director, Angela Wu, to the Congressional Human Rights Caucus conference on "Religious Freedom in a Post-9-11 World". She urged support for HR 6146, introduced in May by Rep. Steve Cohen. The bill would prohibit state and federal courts from recognizing defamation judgments of foreign courts if they are inconsistent with the First Amendment. The bill is directed at judgments under blasphemy and hate speech laws around the world that permit defamation actions against those who criticize the beliefs of other religions.

Christian Proselytization Charged At Ohio's Wright Patterson Air Force Base

This week's Dayton (OH) Jewish Observer carries a story on Christian proselytizing in the military at Fairborn, Ohio's Wright Patterson Air Force Base. Mikey Weinstein, president of the Military Religious Freedom Foundation, says he has received more than 100 complaints about activities on the base. In July 2006, a former military contractor charged that staff meetings were opened and closed by Christian prayer, and military trainees were evaluated on whether they enthusiastically participated. Trainees who did not attend Christian prayer services on Sunday received unpleasant alternative assignments. Senior officers, the contractor charged, prayed as an aid in making decisions, and many saw the Iraq war as being religiously motivated. Wright Patterson's public relations office said that while the Air Force is committed to the prohibition on establishment of religion, "consistent with the Free Exercise Clause of the Constitution, Air Force members and employees may freely exercise their own religions, to include participating in worship, prayer, study and voluntary discussions of religion so long as it is reasonably clear they are acting in their personal, not official, capacity."

Wright Patterson is the home of the U.S. Air Force National Museum. Among the military displays in the museum is a Holocaust exhibit designed to show that the U.S. goes to war to defeat tyranny.

Illinois Church Denied Temporary Injunction In RLUIPA "Equal Terms" Case

In River of Life Kingdom Ministries v. Village of Hazel Crest, Illinois, 2008 U.S. Dist. LEXIS 53491 (ND IL, July 14, 2008), an Illinois federal district court in an elaborate opinion denied a preliminary injunction to a church that challenged provisions of the Hazel Crest (IL) zoning ordinance. The church argued that its exclusion from a Tax Increment Financing (TIF) district the village had zoned to attract transit oriented businesses violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.

In an earlier order denying the church a temporary restraining order, the court had questioned the version of the zoning ordinance then in effect by finding that non-religious "special uses" allowed in the area, including art galleries, museums, public libraries, recreational buildings and community centers, were "comparable" to religious use. The village quickly amended its zoning law to eliminate the comparable non-religious uses as permissible. The Church nevertheless pursued its claim, and the district court found that the Seventh Circuit would likely adopt the "strict scrutiny" test enunciated by the 11th Circuit in interpreting RLUIPA's equal terms provision.

The Village argued that permitting the church within its TIF district would have a devastating effect on attracting the businesses sought by the village because no liquor license can be granted to an establishment within 100 feet of a Church. The court concluded that because the church has shown only a slight chance of success on the merits, it should deny a preliminary injunction. (See prior related posting.)

New Zoning Rules In Florida City Seen As Still Restrictive On Religious Groups

Last January, a Florida federal district court ruled that Cooper City, Florida's zoning laws violated RLUIPA by excluding all houses of worship from commercial areas. (See prior posting.) This week, according to Florida's Sun-Sentinel, the Cooper City Commission amended its zoning rules to treat religious institutions the same as all other forms of community assembly activities. The new rules, however, allow only three community assembly uses at any strip mall in the city. Chabad of Nova that filed the successful RLUIPA challenge says that the new rules still severely limit its choice of a location for its Outreach Center. Chabad leaders say they will go back to court to challenge the new rules as violative of their religious freedom.

Saudi King Hosts Interfaith Conference In Spain

An interfaith conference sponsored by Saudi Arabia opened in Madrid, Spain yesterday with an address by Saudi King Abdullah. The conference is aimed primarily at bringing Muslims, Christians and Jews closer together, but representatives of several Eastern religions, including Buddhism and Hinduism, also attended. Spain's King Juan Carlos also spoke to the gathering. According the the AP yesterday, Abdullah urged interfaith reconciliation and a rejection of extremism. Two TV stations in Saudi Arabia carried the opening of the conference live.

A number of Jewish participants were among the 200 people invited to the Conference, including a prominent Irish-Israeli rabbi, David Rosen. More controversial was the conference invitation to Rabbi Yisrael Dovid Weiss, a representative of Neturei Karta from upstate New York. Neturei Karta believe that the creation of the modern state of Israel violates Jewish religious law. New York Jewish Week reports that conference organizers finally announced that Weiss-- who spoke at a Holocaust denial conference two years ago-- would not be one of the speakers. Objections to his appearance came not only from Jewish groups, but also from Dr. Sayyid Syeed, national director of the Islamic Society of North America. Instead the main Jewish speaker was to be New York Rabbi Arthur Schneier, founder of the interfaith Appeal of Conscience Foundation. The conference, the first of its kind initiated by the Saudis, was held outside Saudi Arabia because of conservative Wahhabi opposition to interfaith dialogue.

New "Church" Offers Way Around Dutch Cafe Smoking Ban

On July 1, a smoking ban went into effect for cafes, bars and restaurants in the Netherlands (though it did not impact smoking of marijuana in specially licensed coffee shops). (AFP July 1). Now however some bar owners seem to be finding a way around the tobacco ban. Dutch News reported yesterday that several dozen bars hae joined a new religious movement-- the One and Universal Smokers Church of God. The church believes in the trinity of smoke, fire and ash. Worshippers who join the church get a membership card entitling them to honor their god by smoking inside the bar. Promoters of the movement say church members' "religious practice" is protected by the Dutch Constitution and the European Convention on Human Rights. [Thanks to Paul Birchenough for the lead.]v

Croatia Enacts Sunday Closing Law

Croatia's Parliament has passed a Sunday closing law in response to a long campaign by the Catholic Church for such legislation. Yahoo News today reports that week end shopping in malls around the country has flourished. The new law that takes effect January 1 allows stores to remain open on Sundays during the summer and around the Christmas holidays, but not the rest of the year. The law also excludes bakeries, newsstands and flower shops. [Thanks to Scott Mange for the lead.]

Fired Science Teacher Has New Website to Highlight His Legal Defense

Former Mt. Vernon, Ohio science teacher John Freshwater who was fired for teaching conservative Christian religious views in his middle school classroom and for using an electrostatic device to put a cross on a student's arm (see prior posting) has now created his own website, Bibleonthedesk.com. Freshwater, as well as school officials, have been sued in federal court. (See prior posting.) The new website says : "This is the only official source of information from John Freshwater and his team of legal and spiritual advisors." [Thanks to Dispatches from the Culture Wars for the lead.]