Another Church Zoning Suit Filed, This Time In Marietta, GA

In yet another zoning dispute between a church and city officials, in Marietta, Georgia, Rev. Frederick Anderson's Covenant Christian Ministries has filed suit in federal district court in Atlanta. The Atlanta Journal Constitution today said that Marietta City Council rejected a rezoning request to permit the church to build a sanctuary, school and dormitory on land the church purchased for $1.6 million. Refusing to look for a new location, Anderson says "This is where God wants us." The suit alleges free exercise, due process and RLUIPA violations.

Malay Muslims Must Sue To Get Change In Religious Status

In Malaysia, where there is ongoing debate over the respective jurisdiction of civil and Syariah courts when a Muslim wishes to convert, last Monday brought a new judicial precedent. Today's New Straits Times reports that in Malaysia's Labuan Federal Territory, a Syariah court dismissed a petition by Kenneth Wong Chun Chiak (also known as Kenny Abdullah) to have his name removed from the Labuan Federal Territory Islamic Council register. Syariah High Court judge Husin Ahamad said that Chiak had followed the wrong procedures. Wong had filed an affidavit with the Council stating that he had converted, and asking for the change in records. The court, however, said that before a Muslim could convert, he was required to file suit under the Federal Territory Syariah Court Civil Procedures Act against the Federal Territory Islamic Council, and ask the Syariah court to adjudicate whether he can renounce Islam.

Group Has Standing To Challenge California Textbook Decision

In California Parents for the Equalization of Educational Materials v. California Department of Education, CIV. S-06-532 FCD KJM (ED CA, Aug. 11, 2006). a California federal district court held that a non-profit organization formed to promote accurate portrayal of Hinduism in California's public schools has standing to pursue claims that California violated the First and Fourteenth Amendments in its 2005 revisions of its History-Social Science textbooks. The court permitted plaintiffs to proceed with their claim for injunctive relief against members of the State Board of Education. However the 11th Amendment bars their suit against state agencies themselves. CAPEEM's Aug. 11 press release give further information on the decision, as does an article in today's India Post. Another article in today's India Post gives background on the litigation. The review process in California has been contentious, and has led to at least one other lawsuit that is pending in state court.

En Banc Review Sought In Bible Monument Case

On Tuesday, according to the Associated Press, the Harris County, Texas Attorney's Office requested that the U.S. 5th Circuit Court of Appeals review en banc the 3-judge panel's August 15 decision in Staley v. Harris County. (See prior posting.) That decision upheld an Establishment Clause challenge to a monument on the Harris County courthouse grounds honoring Houston philanthropist William S. Mosher. The monument includes a Bible in a glass case as part of the display.

Is YMCA A Religious Organization?-- Colorado Tax Board Must Decide

The Colorado State Board of Assessment Appeals on Monday heard arguments in a challenge to the property tax-exemption that the state has given to the YMCA for its properties in two Rocky Mountain vacation areas-- Estes Park and Snow Mountain Ranch. The Longmont Daily Times-Call yesterday reported that the dispute centers on whether or not the YMCA's facilities are places of religious worship. YMCA attorney Stuart Lark said that the YMCA "is a Christian organization" committed to providing "a Christian environment" for people visiting the resort areas, even if those guests are not Christians themselves. Competing hotel owners say the tax exemption gives the YMCA an unfair competitive advantage.

Prayer For Rain Was Part of South Dakota's Call To Fight Drought

In a front-page story yesterday on the severe drought ravaging the Plains States, the New York Times mentioned that South Dakota Gov. Michael Rounds "recently sought unusual help from his constituents". He declared July 24-30 as a "week to pray for rain". The full text of the governor's Executive Proclamation calling for prayer focuses on the economic impact of the drought and the fire dangers it creates. In an accompanying press release, Gov. Rounds said: "We are a strong people and all can provide help in many ways, whether actually fighting the fires, providing assistance to the crews, or joining together in the power of prayer."

Religious Obedience To Husband Causes Problems For Muslim Woman

In Melbourne, Australia, a county court judge has accepted a Muslim woman's request to withdraw her guilty plea to charges of handling stolen property and obtaining property by deception. Her indictment alleged that, along with her husband, Shahida Karim-Hawchar resold stolen cars. Today's Melbourne Herald Sun reports that the woman pled guilty because her husband instructed her to do so, and she obeyed, acting in accordance with her religious and cultural traditions. Lebanese-born Mrs. Karim-Hawchar has not rejected her religious traditions in her plea change. She is withdrawing her plea because her husband has also ordered her to do so. The court refused to permit her husband to withdraw his plea.

FLDS Fugitive Warren Jeffs Is Captured

Yesterday Warren Jeffs, former head of the FLDS Church, was arrested outside Las Vegas, Nevada during a routine traffic stop. The New York Times reports that a state trooper stopped Jeffs’s 2007 red Cadillac Escalade because its temporary Colorado license tag was not fully visible. Jeffs, whose church promotes polygamy, faces charges-- including charges of being an accessory to rape-- in connection with arranging marriages between men and underage women. In May, he had been placed on the FBI's list of the 10 Most Wanted Fugitives. The FLDS Church has been the focus of extensive law enforcement attention in Utah and Arizona since last year. An AP article in the Washington Post traces some of the history of Jeff's controversial leadership and his control over the towns of Hildale, Utah, and Colorado City, Arizona.

New Mexico State Coach Sued For Religious Discrimination

Three Muslim college students who were thrown off of New Mexico State Univeristy's football team have sued the university and coach Hal Mumme for religious discrimination, according to the Associated Press yesterday. The suit, filed on behalf of Mu'Ammar Ali, Anthony Thompson and Vincent Thompson by the ACLU of New Mexico, alleges that Mumme made Muslim students feel like outcasts, questioning Ali about his attitudes toward al-Qaida. Coach Mumme had other players recite the Lord's Prayer after practices and before each game, but made Muslim players pray separately. A University investigation of the charges found no evidence of religious discrimination. (See prior posting.)

California Governor Signs GLBT Bias Bill With No Religious Exception

In California, the Campaign for Children and Families is criticizing Gov. Arnold Schwarzenegger's signing on Monday of SB 1441 that adds "sexual orientation" to the law that prohibits discrimination by any program that receives state financial assistance. Critics are concerned that there is no exception for religiously affiliated institutions. Religiously affiliated colleges enroll students who receive state financial aid, and many religiously affiliated children's day care centers and after-school programs receive state aid. CNSNews today, reporting on these developments, says that other bills calling for equal treatment of gays and lesbians are also pending in the California legislature.

Pakistani Muslim Lawmakers May Have Ripped Up Quran Verses

Last week Religion Clause reported that in Pakistan members of the Muslim alliance known as MMA tore up copies of the government's proposed Protection of Women's Rights Bill. Now, according to yesterday's Asia News, Ashfaq Chaudhry, head of the Islamabad’s chapter of the Pakistan People’s Movement, has charged those Parliamentarians with blasphemy. Apparently the text of the Bill that they tore up contained quotations from the Quran. Section 295-B of Pakistan’s Penal Code provides for life in prison for desecrating the Quran. MMA President Qazi Hussain Ahmed however argues that the draft bill did not contain Quran verses.

Ohio's Blackwell Thanks Pastors For Endorsement

In Columbus, Ohio yesterday, a group of conservative pastors from across the country held their planned news conference to endorse Republican gubernatorial candidate Kenneth Blackwell. The Associated Press reported that in thanking the clergy for their endorsement, Blackwell said:

I stand with you this morning as a defender, as an advocate, for religious liberty. I will fight for the right of the nonbeliever to non-believe, because we all have a right to be wrong. I, in fact, understand that we cannot strip God and faith and religion out of the public square and be the self-governing democracy that we've been for 230 years. From our first president to this president, there's been an innate understanding that a self-governing people must be a community or society that is built on a moral foundation.

Blackwell's Democratic opponent, Ted Strickland, commented, "I think whenever the church allows itself to become a tool of a political movement, or a particular political party, that the church is in danger of losing its moral authority."

Church Members Bless Public School

In Columbus, Ohio last Sunday, 180 members of four local churches surrounded Woodward Park Middle School to bless the building and those who use it. Yesterday's Columbus Dispatch reported on the event. The ACLU of Ohio had sent a letter to the school principal and the district's superintendent, arguing that the event would be perceived as showing favoritism toward particular religious groups. However a school spokesman said that like anyone else, these individuals can walk onto school grounds during the week end. ACLU Litigation Coordinator Gary Daniels warned that "Allowing ministers to bless a public building will open a Pandora's box of other groups that will want to come in and perform similar ceremonies."

German Chancellor Wants Christian Roots In EU Constitution

After meeting with Pope Benedict XVI, German Chancellor Angela Merkel said that Europe needs a constitution that reflects its Christian roots, arguing that "Christianity has forged Europe in a decisive way". Merkel, the daughter of Protestant minister, will assume the European Union's rotating presidency next year. Her views are supported by Spain, Italy and Poland, but mention of Christianity in the document is opposed by France, Britain, Sweden and Denmark. Merkle's position also creates problems for largely-Muslim Turkey as a potential EU member. Merkel's remarks are reported by ANSA, the Guardian, and UK's Muslim News.

School Prayer Challenged In Missouri Law Suit

Last month, the ACLU of Eastern Missouri filed a federal lawsuit against the Doniphan School District in southeast Missouri, alleging that during two honors assemblies at Doniphan Elementary School, teachers led the students in sectarian Christian prayer. The complaint alleges that sectarian prayer at these assemblies, where student attendance was mandatory, violated the Establishment Clause. The suit was filed after attempts to obtain informal resolution of the issue failed. The suit is discussed in an ACLU press release and in a story by Agape Press. The full text of the complaint in Doe v. Doniphan R-I School District is available online as is the ACLU's July 25 Memorandum in Support of Motion for Preliminary Injunction.

California Episcopal Diocese Lays Legal Foundation For Breaking Away

This week's Christian Century reports on legal moves by the Diocese of San Joaquin, California that could permit it to successfully break away from the Episcopal Church in the USA (ECUSA) over opposition to the ordination of women. The major hurdle that a breakaway diocese faces is the legal doctrine that requires civil courts to permit the internal machinery of hierarchical churches to resolve theological disputes within the denomination. San Joaquin Bishop John-David Schofield has has taken steps to make his diocese sufficiently independent of ECUSA that it can argue that it is not part of an hierarchical church. In October 2005, the San Joaquin diocese convention amended its constitution to provide that it takes precedence of national church policy. Then in March 2006, the diocese amended its bylaws to provide that ECUSA no longer has to approve San Joaquin's choice of bishop.

Fearing the impact of these moves on all California dioceses, four other bishops filed charges in an ecclesiastical tribunal against Bishop Schofield, seeking to remove him from the Church. A letter from one of those who filed the charges, San Francisco bishop William Swing, and a response from the Chancellor of the San Joaquin diocese, are available in full text from Virtue Online. Bishop Swing's letter argues that Schofield "has taken actions that put all Episcopal dioceses in the State of California in jeopardy" by undercutting the argument that ECUSA is an hierarchical church. In response, San Joaquin Chancellor Russell VanRozeboom argued that Canon IV.9. under which charges have been brought against Schofield only applies when there is an attempt to affiliate with a religious body that is not in communion with the Episcopal Church. He says that San Joaquin, if it breaks away, will remain in communion with the broader, more conservative world-wide Anglican Church.

VanRozeboom also argues that Bishop Schofield cannot be disciplined for action taken by the the Diocese Convention to amend its constitution, and that the October 2005 amendment only impacts the civil law issue of who is chief officer of the Diocese under California's Corporation Code, not the ecclesiastical issue of who should be Bishop.

Christian Century reports that meanwhile, the conservative Anglican Communion Network (ACN), that claims 900 parishes as members, has taken further steps toward its ultimate goal of becoming a separate Anglican province, with its own seminaries, churches and hierarchy. ACN was formed in 2004 after more conservative Episcopalians became upset with the ordination of a gay man as a bishop in New Hampshire.

Wife's Religious Spoofs Become Central In Custody Case

Newswire Today reports on a child custody case that has gained high profile in the blogosphere. Rachel Bevilacqua is active in the Church of the SubGenius, a "parody religion" that produces materials and engages in satire, performance art, and comedy that take aim particularly at Christian religious denominations. Attempting to gain sole custody of their son, Bevilacqua's former husband introduced photos of Rachel performing in an adult-oriented parody of Mel Gibson's movie, "The Passion of the Christ." Even though Bevilacqua's son has never attended any of the SubGenius events, the offensive photos led an Orleans County, New York judge to take away Rachel's joint custody and give sole custody of the Bevilacqua child to his father. This, in turn, has led to a flurry of online criticism by defenders of free expression. The case has now been reassigned to a different judge.

Early American Textbooks Filled With Christian References

Today's Wall Street Journal Online carries an article on the religious content of textbooks used in schools in the United States in the 18th and early 19th centuries. Christian references were embedded in all sorts of subject matter. In spelling, "A was for Adam, B was for the Bible and C was for Christ." In arithmetic, books asked, "How many days is it since the birth of Our Savior?" Science books said, "All parts of the solar system are framed and adjusted to answer exactly the purpose intended by the Creator." As the country became more diverse in the 19th century, explicit Christian references were dropped, but textbook material still attempted to teach values like virtue and obedience to the law.

Political Scientist on Islam and Christianity In Europe Today

Zenit yesterday carried an interesting interview with political scientist Hans Maier. The interview was conducted in July by the Italian daily Awenire. Maier, who was minister of Education and Culture in Bavaria from 1970 to 1986 and president of the Central Committee of German Catholics from 1976 to 1988, spoke about Europe's relations with Islam and the role of Christians in Europe's public life. Here are some excerpts:

To import in Europe the same Islam that has been structured in Arab countries would mean the suppression of present-day Europe to create another, radically different continent. This does not mean that we cannot have a Euro-Islam, an Islam adapted to Europe. But it presupposes on the part of Muslims respect for religious freedom, pluralism of thought and the distinction between religion and politics. It requires that the mullahs accept to live their faith along with the Jewish synagogues and Christian cathedrals. It is a process of transformation and maturation to which we must call Muslims, if they wish to be part of this Europe of ours.

Political and social participation ... becomes a responsibility that weighs on all Christians, especially in times such as our own, in which all withdraw in the first person from direct commitment. ... Christians are called to unite, to seek ties with others. It must never be forgotten that one of the factors that led to the affirmation of Nazism in Germany was the division between Catholics and Protestants, who were unable to form a common front.

The "secular" state is also in need of values expressed by citizens. It lives from the impulses and binding forces that religious faith itself transmits to its citizens. Hence the reason why it is good for the state to recognize the role of religion. And in Europe this means to be aware of the importance exercised by the Judeo-Christian tradition.

Alabama Dems Tell Holocaust Denier To Leave Party

The executive committee of the Alabama Democratic Party passed a resolution on Saturday telling Holocaust-denier Larry Darby that he is not welcome in the Party. According to the Associated Press, the resolution calls the Holocaust "a vile example of anti-Semitism." Darby, former director of the Atheist Law Center, said that the resolution demonstrates that party leadership is "intellectually and morally bankrupt." Earlier this year, Darby ran and lost in the Alabama Democratic primary for state attorney general. (See related prior posting.)

India's Supreme Court Orders State TV To Show Controversial Film

A panel of India's Supreme Court has ordered the state-owned television channel, known as DD, to televise an award-winning documentary film "Father, Son and Holy War," according to Ohmy News today. The film, produced by Anand Patwardhan, deals with religious zealotry and violence. The television station refused to show the film because of the classification it received from the Indian Censor Board. However the court said that every national award-winning film must be broadcast on DD. It concluded: "DD being funded publicly, could not have denied access to viewers to screen the respondent's documentary except on specified valid grounds."

Plaintiff In Landmark Church-State Case Dies

United Press International reports that Vashti McCollum, plaintiff in a landmark 1948 U.S. Supreme Court case, McCollum v. Board of Education, died yesterday at the age of 93. In the 1948 case, the Court by a vote of 8-1 struck down Illinois' plan that permitted the teaching of religion in school classrooms during school hours by outside religious teachers. Students whose parents did not consent to their attending one of the religious classes left their regular classroom and pursued secular studies elsewhere in the school. Justice Frankfurter's concurring opinion is particularly interesting to reread. It traces the development of the notion of "separation of church and state" in the setting of public school instruction.

New Poll On Religion and Public Life

Last Thursday, the Pew Forum on Religion and Public Life issued a new poll on Religion and Politics. The poll, which surveyed a national random sample of 2,003 adults last month, covers religion and public life, religion and politics, religion and science, and religious beliefs. The report's summary says:

While the public remains more supportive of religion's role in public life than in the 1960s, Americans are uneasy with the approaches offered by both liberals and conservatives. Fully 69% of Americans say that liberals have gone too far in keeping religion out of schools and government. But the proportion who express reservations about attempts by Christian conservatives to impose their religious values has edged up in the past year, with about half the public (49%) now expressing wariness about this.

The Democratic Party continues to face a serious "God problem," with just 26% saying the party is friendly to religion. However, the proportion of Americans who say the Republican Party is friendly to religion, while much larger, has fallen from 55% to 47% in the past year, with a particularly sharp decline coming among white evangelical Protestants (14 percentage points).

The survey found that white evangelical Christians make up 24% of the population. While 32% identify themselves as liberal or progressive Christians, this group is split among themselves on many issues. The Associated Press and Blog from the Capital have discussed the poll's findings.

Recent Articles and Books Of Interest

From SmartCILP:

• Thomas B. Colby, A Constitutional Hierarchy of Religions? Justice Scalia, the Ten Commandments, and the Future of the Establishment Clause, 100 Northwestern University Law Review 1097-1139 (2006).
  
• Frederick Mark Gedicks, Spirituality, Fundamentalism, Liberty: Religion At the End of Modernity, 54 DePaul Law Review 1197-1235 (2005).
  
• Judge William H. Pryor, Jr., The Religious Faith and Judicial Duty of an American Catholic Judge, 24 Yale Law & Policy Review 347-362 (2006).
  
• Christopher L. Eisgruber, Justice Stevens, Religious Freedom, and the Value of Equal Membership, 74 Fordham Law Review 2177-2185 (2006).
  
• Eduardo Moises Penalver, Treating Religion as Speech: Justice Stevens's Religion Clause Jurisprudence, 74 Fordham Law Review 2241-2257 (2006).

_________________________________
Recent Books:

• Ann Coulter, Godless: The Church of Liberalism (Crown Forum, June 6, 2006).
  
• John Danforth, Faith and Politics: How the "Moral Values" Debate Divides America and How to Move Forward Together (Viking Adult, September 19, 2006).
  
• Mel White, Religion Gone Bad: The Hidden Dangers of the Christian Right (Tarcher, September 7, 2006).

School Board Successfully Defends Against Claim It Promoted Baptist Doctrines

In Marsh v. School Board of Marion Community Unit School, 2006 U.S. Dist. LEXIS 59552 (SD IL, Aug. 23, 2006), an elementary school student and her father sued a school board in Marion, Illinois and its superintendent alleging that the superintendent, who was also a church deacon, was using the public schools to indoctrinate students with teachings of the Baptist faith. Apparently plaintiff had at one time belonged to a Baptist church but had been "kicked out" of it. The court rejected on various grounds Establishment Clause challenges based on distribution of flyers about Baptist youth programs, alleged discriminatory hiring practices, school assemblies featuring a minister as a speaker on secular topics, distribution during school time of tickets for a pizza party with religious content, alleged religious content in the school's curriculum, and religious content in a summer theater program and in a teaching institute. Among the grounds for dismissal were mootness, lack of standing, and lack of evidence to support some of the constitutional claims. Documents presented in support of plaintiff’s unsuccessful motion for summary judgment included a letter that plaintiff had fished from defendant's trash dumpster.

Cleric Urges Vatican-Israel Mutual Recognition

Asia News today published an interview with Fr. David-Maria A. Jaeger, an Israeli citizen who is the new head of “The Church and Israel Public Education Initiatives”. In 1992, the Vatican and the state of Israel signed the "Fundamental Agreement" that was supposed to lead to mutual recognition. Jaeger’s goal is to obtain full implementation of this and a follow-up agreement on the Legal Personality of the Church entered in 1997. Jaeger says this is necessary for meaningful survival of the Catholic community in Israel.

Bangladeshi Madrassa Grads Can Now Sit For Civil Service Exams

An op-ed in Bangladesh’s Financial Express today strongly criticizes a decision taken last week by the government of Bangladesh to recognize degrees from Islamic madrashas as equal to degrees from mainstream educational institutions. This will for the first time permit madrasha graduates to sit for the Bangladesh Civil Service Exams. Columnist Enayet Rasul asserts: "after becoming civil servants they will not help the end of good governance any because of their sheer knowledge deficiency and, on the other, many of them can be expected to work behind the wings for the Islamic extremists to wage Islamic revolution or to Islamise the administration."

Katherine Harris On Church-State, Religion and Politics

In a controversial interview published Thursday by the Florida Baptist Witness, U.S. Rep. Katherine Harris (R-FL) gave her views of the role that religion should play in politics and government:

[W]e have to have the faithful in government and over time, that lie we have been told, the separation of church and state, people have internalized, thinking that they needed to avoid politics and that is so wrong because God is the one who chooses our rulers. And if we are the ones not actively involved in electing those godly men and women and if people aren't involved in helping godly men in getting elected than we’re going to have a nation of secular laws. That’s not what our founding fathers intended and that’s certainly isn't what God intended. So it’s really important that members of the church know people’s stands. It’s really important that they get involved in campaigns…. It’s time that the churches get involved. Pastors, from the pulpit, can invite people to speak, not on politics, but of their faith. But they can discern, they can ask those people running for election, in the pulpit, what is your position on gay marriage? What is your position on abortion? That is totally permissible in 5013C organizations. They simply cannot endorse from the pulpit. And that’s why I’ve gone to churches and I’ve spoken in four churches, five churches a day on Sunday and people line up afterwards because it’s so important that they know. And if we don’t get involved as Christians then how could we possibly take this back?

Today’s Orlando Sentinel published strong criticisms of Harris' statements by a wide variety of political and religious leaders, many of whom focused on another statement in her interview: "if you’re not electing Christians then in essence you are going to legislate sin".

UPDATE: The Orlando Sentinel reported on Sunday that Katherine Harris spoke while campaigning, attempting to explain away her remarks in her Baptist Witness interview about religion and politics.

A New Group Of Prisoner Free Exercise Cases

In Jackson v. Federal Bureau of Prisons, 2006 U.S. Dist. LEXIS 59119 (D DC, Aug. 22, 2006), the D.C. federal district court dismissed RLUIPA claims against the federal Bureau of Prisons and its director by a Muslim prisoner who claims he was denied a pork-free diet as required by his religious beliefs. The court held that RLUIPA applies only to state and local governments, and not to the federal government.

In Scott v. California Supreme Court, 2006 U.S. Dist. LEXIS 59573 (ED Cal., Aug. 22, 2006), a California federal district court rejected claims by a Hebrew-Israelite prisoner that his First Amendment rights and his rights under RLUIPA were violated when the prison warden refused to permit him to legally change his name to a religious name.

Jackson v. Department of Corrections, 2006 Mass. Super. LEXIS 363 (Middlesex County, July 27, 2006), involved challenges by male Muslim prison inmates in Massachusetts to pat-searches by female guards and to provision of religious services only once every two weeks. A Massachusetts trial judge denied the state's motions for summary judgments on state statutory and RLUIPA claims, finding that facts remained in dispute. The court granted the state's motion to dismiss claims of cruel and unusual punishment and discriminatory treatment of Muslims.

In Carrio v. Texas Dept. of Criminal Justice, (5th Cir., Aug. 23, 2006), the U.S. Fifth Circuit Court of Appeals rejected a prisoner's claim that a prison's property-storage rules violated his free exercise rights under the First Amendment and RLUIPA. It rejected various other claims because they had not been raised in the trial court.

Anti-Jewish Cartoon Exhibit In Iran

In a front page story today, the New York Times reports on an anti-Semitic art show in Iran. The display of 200 drawings in Tehran's Palestinian Contemporary Art Museum that opened this month is called "Holocaust International Cartoon Contest". The offensive display is variously justified as a response to cartoons of Muhammad published in the West last year and as a protest against the treatment of Palestinians by Israel. The exhibit, which is not technically sponsored by the government, has attracted little attention from Iranians. The show's curator argues that the exhibit is not anti-Jewish, but merely opposed to Israeli "repression".

New Lawsuit Filed Over Mt. Soledad Cross

Yesterday, a new lawsuit over the Mt. Soledad cross was announced by the ACLU which filed a complaint on behalf of the Jewish War Veterans and several San Diego residents challenging the constitutionality of the continued display of the cross now that the federal government has taken ownership of the land on which the Mt. Soledad Veterans Memorial stands. The full text of the complaint in Jewish War Veterans v. Rumsfeld, filed in federal district court for the Southern District of California, chronicles the long history of the dispute over the Mt. Soledad Cross. The complaint asks for a declaratory judgment that the continued display of the cross violates the Establishment Clause. It seeks an injunction against its display and asks the court to encourage and permit the cross to be moved, at the expense of individual citizens, to an appropriate non-governmental site.

The ACLU has posted background material about the dispute here and here.

Clergy Group Will Endorse Blackwell For Ohio's Governor

Continuing the high profile of religious leaders in Ohio's gubernatorial race, the Associated Press reports that an inter-racial group of ministers from around the country, Clergy for Blackwell, will hold news conferences on Monday in Columbus and Cincinnati. Acting in their individual capacities, the clergymen will endorse conservative Republican candidate Blackwell. Clergy in the group include the director of the Memphis-based Coalition of African-American Pastors, Bishop George McKinney of St. Stephen's Cathedral Church of God in Christ San Diego and Bishop Harry Jackson, chairman and CEO of the Maryland-based High Impact Leadership Coalition.

Blackwell's opponent, Democrat Ted Strickland-- who is a Methodist minister-- says that clergy have the right to endorse candidates in their personal capacity. However, he says, "certain clergy have allowed Mr. Blackwell to become so identified with their church and their religious work in the minds of the public they are indistinguishable."

Now 4 GOP Candidates Have Called For Religious Profiling Of Muslims

An Al-Jazeerah editorial yesterday says that Florida Republican Congressional candidate Mark G. Flanagan has become the fourth candidate for political office to endorse profiling of Muslims. In an August 21 statement he urged that airline passengers who appear to be Arab or Muslim should be subjected to additional special screening. Last week, House Homeland Security Chairman Peter King (R-NY) expressed similar sentiments (see prior posting). Republican Paul Nelson, running in the 3rd District of Wisconsin, who has endorsed similar approaches was asked on a radio show how he would identify who was a Muslim male. He responded, "If he comes in wearing a turban and his name is Muhammad, that's a good start." And Republican candidate for governor of New York, John Faso, also calling for profiling, said "Looking for Muslims for participation in Muslim jihad is not playing the odds. It is following an ironclad tautology."

Ohio Supreme Court Decides 2 More Priest Abuse Limitations Period Cases

On August 23, the Ohio Supreme Court summarily affirmed the court of appeals holdings (see prior posting) on statute of limitations in two priest sexual abuse cases. In Miller v. Archdiocese of Cincinnati and Doe v. Archdiocese of Cincinnati, the Supreme Court affirmed the lower court's refusal to extend the statute of limitations. The summary affirmance was based on a decision handed down by the Supreme Court last May. (See prior posting on that decision.)

Navajo-Hopi Dispute Over Sacred Lands Continues

Over the last week, three stories in the Gallup (NM) Independent traced the most recent development in the decades-old Navajo-Hopi land dispute. See newspaper's articles at 1, 2, 3 . Since 1958, the Hopi Tribe and the Navajo Nation have been involved in litigation over ownership of 3.5 million acres of land in Arizona. Both tribes want access to the disputed land for religious ceremonies. In 1974, Congress authorized a compact to settle the major lawsuit. Over the last four years, Navajo and Hopi negotiating teams have reached agreement on language for the proposed compact. The compact must be approved by both tribal councils, by U.S. District Court Judge Earl Carroll and by the Secretary of the Interior. Under the proposed settlement, the Navajos retain ownership of the disputed land and both tribes will maintain access to the other's land for religious ceremonies. However, last Monday the Government Services Committee of the Navajo Nation Council voted 3-2 against the proposed settlement. A few members of the Navajo nation have filed suit seeking an injunction against the approval of the compromise, claiming it was negotiated in secret. Portions of the compact that identify the precise location of sacred Hopi sites are to remain confidential, available only to tribal officials with responsibility for enforcing the compact.

Seizure Of Gospel Tracts By Secret Service Appealed

Agape Press yesterday reported that an appeal has been filed with the U.S. 5th Circuit Court of Appeals by the Great News Network whose religious flyers were confiscated by Secret Service agents. The government claims the flyers violate counterfeiting prohibitions. (See prior posting.) GNN has distributed gospel tracts that resemble $1 million bills, a non-existent denomination of U.S. currency. On the back, the tract says: "The million-dollar question: Will you go to heaven?" Brian Fahling, senior trial attorney with the Center for Law & Policy who represents GNN, says that no one would confuse these with real currency. They say, "This bill is not legal tender"and "from the Department of Eternal Affairs".

Malaysian Official Wants More Restrictions On Proselytization

Malaysia's Constitution, Part II, Sec. 11(4) provides: "State law and in respect of the Federal Territories of Kuala Lumpur and Lubuan, federal law may control or restrict the propagation of any religious doctrine or belief among persons professing the religion of Islam." Bernama reported yesterday that cabinet minister Mohamed Nazri Aziz has demanded that four Malaysian states that have not yet done so amend their constitutions to forbid the proselytization of Muslims.

Cert Petition Filed In NYC School Holiday Symbols Case

A petition for certiorari has been filed with the U.S. Supreme Court in Skoros v. Tine, a Second Circuit case in which the Court of Appeals, by a 2-1 vote, upheld a New York City Department of Education policy that allows the menorah to be displayed as a symbol of the Jewish holiday of Chanukkah and the star and crescent to be displayed as a symbol of the Islamic holiday of Ramadan, but permits only secular symbols, and not a creche or nativity scene, to be displayed as a symbol of Christmas. (See prior posting.) The Thomas More Law Center, which yesterday announced its filing of the petition on behalf of a parent and two school children, is apparently asking the Supreme Court to make major changes in its Establishment Clause jurisprudence. The petition asks the Court to abandon the "endorsement test that it increasingly uses in Establishment Clause cases, arguing that the test "is unworkable and incapable of consistent application." It is making this argument, even though the dissent in the 2nd Circuit used the endorsement test as the basis for arguing that the school policy was an unconstitutional endorsement of Judaism and Islam.

NJ School Appeals Football Coach Prayer Decision

To the surprise of many observers, the East Brunswick (NJ) Public Schools yesterday filed a notice of appeal with the U.S. Third Circuit in a case involving football coach Marcus Borden. The Asbury Park (NJ) Press reports that the school system asked the appellate court to overturn a lower court's ruling that Borden can participate in student-initiated non-sectarian prayers offered by football team players. (See prior posting.) Press releases by the school system following the district court decision had suggested that the board was satisfied with the ruling delivered from the bench by U.S. District Judge Dennis Cavanaugh.

Malaysia Uses Religious Rehabilitation Camps

In an article about Muslims who convert to Christianity in Malaysia, today's New York Times discloses that Malaysian religious authorities sentence converts to "religious rehabilitation camps". The article reviews the high profile case of convert Lina Joy pending in the Federal Court, Malaysia's highest court. The case seeks a ruling that civil courts can order a change of religion on Joy's identity card without approval of her conversion from a Shariah court. (See prior posting.) Shariah courts would likely consider Joy an apostate, and if she did not repent it would likely sentence her to several years in an Islamic rehabilitation center. Joy's case is seen as a critical test of whether Malaysia will remain a secular country.

Meanwhile the New Straits Times says that the Federal Court has indicated that it will not be rushed into rendering its decision in Lina Joy's appeal.

9th Circuit Reaffirms Constitutionality Of RLUIPA Land Use Provisions

In a brief opinion yesterday, the U.S. Ninth Circuit Court of Appeals in Elsinore Christian Center v. City of Lake Elsinore, (9th Cir., Aug. 22, 2006), again upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act. It citied a decision it handed down earlier this month upholding RLUIPA. (See prior posting.) According to a release by the Becket Fund for Religious Liberty, the lower court decision that was reversed yesterday was the only decision in the country that had found RLUIPA's land use provisions unconstitutional. The decision allows the Elsinore Christian Center to base its church in a downtown building it owns.

Report On Evangelicals and US Foreign Policy

The Council on Foreign Relations yesterday issued a background paper titled Christian Evangelicals and U.S. Foreign Policy. The report says that the influence of evangelicals on international human rights issues has been growing and they have been increasingly active in support of the state of Israel. Evangelicals have also shown an increasing interest in "creation care," i.e. environmental issues.

New Zealand Moves To Give Guidelines On Religion In Schools

In New Zealand the country's Education Ministry is preparing to issue guidelines on prayer and other religious practices in schools. The New Zealand Herald today reports on testimony before a Parliamentary committee by Martin Connelly, the Ministry's senior manager. The country's Education Act requires teaching in all primary and intermediate schools to be only secular, except that schools can, with advance announcement, be "officially closed" up to one hour per week for religious instruction. The Education Ministry is proposing new guidelines that will require an opt-in, instead of merely permitting an opt-out, for students for religious instruction. Prayers at school assemblies are not permitted because all students are required to attend assemblies. Secondary schools are not bound by these limitations.

The issue of religion in schools has been complicated in New Zealand because of the existence of Maori language schools. Maori customs and traditions-- Tikanga-- have elements of spirituality. However they are central parts of instruction in Maori schools, even when they use Maori prayer (karakia). Meanwhile, Pat Newman, head of the New Zealand Principal's Association, says the proposed new guidelines are impractical and unworkable. He says many aspects of New Zealand culture have Christian aspects to them. Even the national anthem could be viewed as a prayer. (Report by stuff.co.nz.)

The National Party has called for the Education Ministry to scrap the guidelines. Education officials say folowing the guidelines is voluntary for schools, but failure to do so could lead to parent complaints to the Human Rights Commission. (stuff.co.nz).

Court Approves NJ Synagogue Expansion Plans

In Morristown, New Jersey, a Superior Court judge approved the conditions imposed by the city's Board of Adjustment on the expansion of a Jewish temple. Superior Court Judge B. Theodore Bozonelis had previously overturned the Town Council's denial of the synagogue's expansion plans, but told the Board of Adjustment to develop the expansion guidelines that he approved on Tuesday. According to yesterday's Morris News Bee, the judge's earlier opinion had precluded certain restrictions as violative of the Temple B'Nai Or's religious freedom.

Liberty Law School Profiled

Last Saturday, the Roanoke (VA) Times carried an interesting article on Liberty University's School of Law, and more generally on "faith-based law schools". Liberty University's founder Jerry Falwell says the law school is training "lieutenants for the Lord". Most of the school's 160 students share conservative Christian views on school prayer, abortion, homosexuality and the death penalty. The law school's new interim dean is Mat Staver, executive director of the Liberty Counsel. He says: "[W]e are a Christian school, but we teach law and the foundation of the law. We're not opening up the book on Exodus to find our position on capital punishment."

Defending Liberty University's approach, Nikolas Mikas, president of the Bioethics Defense Fund says, "Without a true Christian rooting of a legal education, all you have is law as power instead of law as justice." Criticizing the law school, Jeremy Leaming on Wall of Separation blog says "Jerry Falwell’s law school aspires to produce lawyers committed to wrecking the First Amendment principle of church-state separation. " Liberty Law School received provisional accreditation from the American Bar Association in February.

Parish Suit Against Episcopal Diocese Dismissed

On Monday, a Connecticut federal district court dismissed a suit against the Episcopal Diocese of Connecticut brought by six parishes whose priests were removed and whose property was taken over by the Diocese in a dispute over the ordination of gay priests. In Parish of St. Paul's Episcopal Church v. Episcopal Diocese of Connecticut Donations & Bequests for Church Purposes, Inc., (D. Conn., Aug. 21, 2006) the court rejected a series of constitutional challenges to the actions of the Diocese. Plaintiffs had come up with a number of innovative theories as to why the Diocese was engaged in "state action", but all of these theories were rejected by the court. The court went on to hold that the issue of whether the Bishop acted contrary to the Diocese's own rules is a question of canon law. Plaintiffs requested a declaratory judgment that Connecticut's statue incorporating the Protestant Episcopal Church is unconstitutional. The court held that the Bishop did not need to rely on these statutes to assert heirarchical authority over the parishes, so that any declaration of unconstitutionality would not remedy the plaintiffs' alleged injuries. Therefore the claim is not justiciable.

The decision is covered by today's Hartford Courant. Also see prior related posting.

USCIRF Praises DOJ Changes Protecting Asylum Seekers

On Monday, the U.S. Commission on International Religious Freedom (USCIRF) issued a release praising action taken by the Justice Department earlier this month to protect legitimate asylum seekers from abroad (including those facing religious persecution at home) from unfair deportation under the expedited removal system. The changes were based on recommendations made by USCIRF in a 2005 study titled Report on Asylum Seekers in Expedited Removal. USCIRF Chair Felice D. Gaer urged the Department of Homeland Security to also make recommended changes "to bring an end to jail-like detention for legitimate asylum seekers by DHS."

New Report Decries "Patriot Pastors"

People for the American Way foundation, the NAACP, and the African American Ministers Leadership Council have recently issued a report titled The Patriot Pastors’ Electoral War Against the 'Hordes of Hell'. The report's Summary begins: "A new generation of Religious Right leaders is turning conservative churches into political machines for far-right Republican candidates .... Christians may hold the most powerful political offices in the country, but to these pastors, Christians are on the verge of being thrown into jail for professing their faith. Political opponents aren't just wrong, they are the 'hordes of hell' and the 'forces of darkness'." The report focuses particularly on activities in Ohio, Texas, Pennsylvania, Florida and Missouri. [Thanks to Blog from the Capital for the lead.]

Muslim Parties Oppose Pakistani Women's Rights Bill

In Pakistan, according to AKA/DAWN, the government Monday proposed to amend the "Hudood Ordinance" of 1979 that deals with property rights, rape and adultery. The law is widely seen as discriminatory against women, particularly in its procedures for proving rape charges. (See prior posting.) The proposed legislation also seeks to amend Pakistan Penal Code, the Criminal Procedure Code and the Dissolution of Marriages Act of 1939 to provide "relief and protection to women against misuse and abuse of law and to prevent their exploitation". However, the Protection of Women's Rights bill is strongly opposed by the Muttahida Majlis-i-Amal (MMA), an alliance of six Islamic parties. They say that the bill is "un-Islamic". Many of its members tore up copies of the draft bill when Pakistan's law and justice minister introduced it. A senior member of the MMA alliance told BBC News that proposal is part of an attempt to secularize Pakistan. However, the prime minister said that the ordinance is an attempt to conform to Muslim law promoting women's rights. Other amendments to the Hudood Ordinance lessening the harsh penalties for adultery were enacted last month.

Delaware School District Rejects Settlement; Insurer Doesn't Want To Pay

In Wilmington, Delaware, according to today's News Journal, a federal judge has unsealed records in a pending lawsuit by Graphic Arts Mutual insurance company against the Indian River School Board. The insurance company wants an order excusing it from paying the school district's legal bills in a suit claiming the school improperly promotes Christianity. (See prior posting.) The insurance company says the District refused to go along with a proposed settlement of the case. The settlement would have imposed a new policies and guidelines applicable to classrooms and to graduation and baccalaureate ceremonies. The school board says the settlement language would even have required the elimination of references to "Christmas Break" on school calendars. Another unrelated provision that was a deal breaker would have required the school board to admit two children from the family of one of the plaintiffs to the district's arts school ahead of others on the waiting list for admission. A counterclaim filed by the school district charges that the settlement was negotiated by the insurance company without consulting school board attorneys and disregarded the school board's interests in favor of those of the insurance company.

UPDATE: A posting on Jews On First dated Aug. 24 gives additional details on the dispute between Indian River School District and its insurer, including links to all the unsealed pleadings in the litigation.

UPDATE: A report from the News Journal on Aug. 24 says that the Indian River School District has now drawn up an alternative settlement proposal.

Evangelical Pastor Arrested For Trespassing At Mormon Pageant

In Clarkston, Utah, an evangelical Christian minister who describes himself as a "missionary to Mormons" was arrested for trespassing last Friday when he and eight others handed out religious tracts at the Clarkston Cemetery amphitheater. Today's Salt Lake Daily Herald reports that the incident occurred at the Clarkston Pageant that depicts the life of Martin Harris, an early follower of Joseph Smith, founder of the Mormon church. Organizers of the pageant said that Daniel "Chip" Thompson, director of Solid Rock Christian Fellowship, who was handing out pamphlets comparing Mormonism with other forms of Christianity, was rude and was shouting offensive remarks-- charges denied by Thompson. Thompson says his rights were violated because the cemetery is public property. However, Clarkston's city clerk says the cemetery is "reserved" each summer by local church leaders for the pageant which is a ticketed event. Cache County Sheriff Chad Jensen says that the property reverts to "quasi-private" status during the event. Earlier this month, another evangelical pastor was arrested at the pageant for disorderly conduct after a dispute about his taping the pageant for use in Christian videos he produces.

Michigan Excludes Some Religious Employers From Health Plan Requirement

The Michigan Civil Rights Commission yesterday ruled Michigan employers that provide prescription drug plans to their employees cannot exclude coverage for federally approved prescription contraceptive drugs and devices. The Associated Press reports, however, that the ruling excludes religious employers from the requirement. Exempt groups are nonprofit organizations that primarily employ and serve people who share the same religious tenets as the employer. However the exclusion does not cover employee plans offered by religiously affiliated hospitals and social service agency that serve the general public. The ruling made under the state's Elliott-Larsen Civil Rights Act covers small businesses that are excluded from a similar U.S. Equal Employment Opportunity Commission ruling.

Arguments Underway In Challenge To Australian Religious Hatred Law

The Age reports on interesting arguments that are under way this week in the Court of Appeals of the Australian state of Victoria. Victoria's Racial and Religious Tolerance Act prohibits inciting hatred against a person or class of persons. In an appeal by the Christian group, Catch the Fire Ministries, and two pastors , the Islamic Council of Victoria argued that villifying Islam necessarily vilifies Muslims who hold those beliefs. The appellants argued that one could hate ideas without hating individuals who hold them. If the law is not interpreted that way, they argued, it becomes a blasphemy law. The pastors charged with violating the law claimed more generally that it violates free expression guaranteed by Australia's constitution and that it violates international treaties signed by Australia. The case grows out of comments made by Pastor Daniel Scott at a seminar on Islam sponsored by Pastor Danny Nalliah's Catch the Fire Ministries, and comments in an online newsletter. (Background from CNSNews.com.).

More Prisoner Free Exercise Cases

In Smith v. Kurmis, 2006 U.S. Dist. LEXIS 57667 (ND IN, Aug. 3, 2006), an Indiana federal district court dismissed the complaint of a pre-trial detainee who argued that placing him in administrative segregation violated his free exercise of religion by preventing him from attending religious services.

In Pinkston-El v. Snyder, 2006 U.S. Dist. LEXIS 58001 (SD IL, Aug. 17, 2006), an Illinois federal district court accepted the recommendation of a Magistrate Judge and rejected a prisoner's statutory and constitutional free exercise challenges to the Illinois Department of Corrections grooming policy. That policy prohibits "hairstyles that create a risk that contraband hidden in the hair cannot be detected or that impede searches for contraband or that pose a risk that contraband hidden in the hair may injure the employee(s) charged with searching the offender." Plaintiff Pinkston-El, a member of the Moorish Science Temple, had taken a Nazarite vow that precluded him from cutting his hair.

In Shidler v. Moore, 2006 U.S. Dist. LEXIS 58097 (ND IN, Aug. 9, 2006), an Indiana federal district court permitted a Sunni Muslim prisoner to move forward with his 1st and 14th Amendment and RLUIPA claims involving denial of prayer oil, denial of communal worship and denial of participation in Ramadan activities, as well as his complaint that classifying him as a Christian and preventing him from using his religious name on his mail prevented him from practicing his religion.

Recent Articles On Religion and Law

From SSRN:
Allan J. Samansky, Tax Consequences When Churches Participate in Political Campaigns (August 2006).

___________

Recently published in Law Reviews (in part from SmartCILP):

Steven Goldberg, Cutter and the Preferred Position of the Free Exercise Clause, 14 William & Mary Bill of Rights Journal 1403-1419 (2006).

David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child, 20 Emory International Law Review 81-110 (2006).

T. Jeremy Gunn, The Religious Right and the Opposition to U.S. Ratification of the Convention on the Rights of the Child, 20 Emory International Law Review 111-128 (2006).

Patrick McKinley Brennan, The "Right" of Religious Liberty of the Child: Its Meaning, Measure, and Justification, 20 Emory International Law Review 129-155 (2006).

Steven H. Resnicoff, Supplying Human Body Parts: A Jewish Law Perspective, 55 DePaul Law Review 851-874 (2006).

William E. Stempsey, Religion, Philosophy, and the Commodification of Human Body Parts, 55 DePaul Law Review 875-888 (2006).

Li-ann Thio, Control, Co-Optation and Co-Operation: Managing Religious Harmony in Singapore's Multi-Ethnic, Quasi-Secular State, 33 Hastings Constitutional Law Quarterly 197 (2006).

Francis J. Beckwith, The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis, 33 Hastings Constitutional Law Quarterly 337 (2006).

Nigerian Group Presses For Law Protecting Religious Freedom

The Christian Lawyers Fellowship of Nigeria (CLASFON) plans to sponsor a bill in the National Assembly to insure religious tolerance in the country. This Day reports on a press conference held this past week end by the President of CLASFON, Jonathan Kish Adamu, who says that his group, along with the Afri Foundation hopes to counteract the continuing religious conflict in both the northern and southern parts of Nigeria. With support from Open Society Initiative for West Africa, plans are underway to hold a series of conference across Nigeria to broaden support for such a law.

Court Holds RLUIPA Applies To Private Prisons

In Dean v. Corrections Corporation of America, 2006 U.S. Dist. LEXIS 57962 (ND MS, Aug. 16, 2006), a Mississippi federal district court issued an opinion containing an important interpretation of the Religious Land Use and Institutionalized Persons Act. It held that, putting together the complex definitional sections of the statute, RLUIPA applies to a private correctional facility holding prisoners under contract with a state so long as the state receives federal funds for some part of its state prison system.

Religious Displays and Harrison County, WV

Apparently the picture of Jesus in a Harrison County, West Virginia high school that has been the subject of recent litigation (see prior posting) is not the only instance of questionable religious displays in that county. The Charleston (WV) Gazette , in an article about the painting, reports that:

Tokens of Christianity, such as crosses or religious mottos, can be seen in schools and government buildings all over Harrison County. In a women's bathroom at the Harrison County Board of Education offices, there are a few amenities on the toilet. An extra roll of toilet paper. A bottle of cucumber-melon scented spray. Alongside them sits a powder blue, leather bound pocket bible titled "New Testament: Psalms Proverbs."

Federal Pre-Emption Requires Objector To Furnish SS Number For Drivers License

In Lewis v. State of Idaho Department of Transportation, (ID Ct. App., Aug. 17, 2006), an Idaho appellate court rejected an appeal by Lawrence Lewis who was denied a drivers' license when he refused to furnish his social security number. Lewis believes his social security number "is either the precursor to, or actually is, the biblical 'mark of the beast'." Apparently realizing that a claim under the First Amendment would be difficult to maintain, Lewis instead relied on Idaho's Free Exercise of Religion Act that requires the state to show a compelling interest and use of the least restrictive means when free exercise is burdened even by a neutral law. The court, however, found that federal law, 42 U.S.C. § 666(a)(13)(A), requiring states to collect social security numbers of drivers license applicants, pre-empts the state's Free Exercise of Religion Act. The federal provision was enacted as part of Congress' attempt to facilitate interstate child support enforcement. Saturday's Salt Lake Tribune covers the decision.

Teens Urge Repeal Of Anti-Polygamy Laws

In Salt Lake City, Utah on Saturday, over a dozen children and young adults from polygamist families spoke at a rally. They urged Utah to change its ban on polygamy so they can practice their religion as they choose. The AP's report on the rally that drew about 250 supporters says speakers emphasized that they are well treated by their families, supported and encouraged to obtain an education.

Wiccan Prison Chaplain May Proceed With Establishment Clause Claim

In McCollum v. State of California, 2006 U.S. Dist. LEXIS 58026 (ND CA, Aug. 8, 2006), a Wiccan clergyman who is a volunteer chaplain in a California prison challenged California's policy that limits salaried prison chaplain positions to members of five faiths. Only Protestant, Catholic, Jewish, Muslim and Native American clergy can be hired. The court dismissed a number of plaintiff's claims, in some cases because they related to prisoners' free exercise of religion, not to his own. The court, however, permitted plaintiff to proceed on his Establishment Clause claim challenging the Five Faiths policy. It also permitted him to proceed on equal protection and First Amendment retaliation claims relating to various denials of access as a volunteer chaplain to Wiccan prisoners.

Religious Objections To Recitation Of India's National Song

Saturday's Daily India.com reports that a clash is brewing between the Indian government and Muslim clerics in the state of Uttar Pradesh over the singing of India’s national song, "Vande Mataram". India’s Human Resource Development Minister, Arjun Singh, has called on all schools in the country to recite the first two stanzas of the song on Sept. 7, to celebrate the 100th anniversary of the adoption of the song as India’s national anthem. Maulana Khalid Rasheed, who heads the Firangi Mahal and is a member of the All India Muslim Personal Law Board, announced that the recitation of the song by Muslim students is un-Islamic. He explained that "the song tends to equate the nation to god and Islam does not permit this. Even Prophet Mohammad cannot be placed on an equal pedestal with Allah, the almighty."

A Particularly Literate and Engaging Decision In Oklahoma 10 Commandments Case

On Friday in Green v. Board of County Commissioners of the County of Haskell, (ED OK, Aug. 18, 2006), an Oklahoma federal district court ruled that a Ten Commandments monument on the Haskell County (OK) courthouse lawn may remain. The monument also contains the text of the Mayflower Compact. The conclusion of the court-- that the circumstances surrounding the approval and erection of the monument do not demonstrate that the primary purpose or effect of the monument is religious—is hardly unusual. What is unusual is the literate and amusing opinion written by federal district Judge Ronald A. White. The opinion, whose subheadings are inspired by Dante’s Inferno, accomplishes the nearly impossible task of keeping the reader enthralled for 43 pages.

While the opinion has been covered extensively—a release by Alliance Defense Fund, a story in the Tulsa World, a report from the Associated Press (including a photo of the monument), and a posting on How Appealing blog—none of these capture the truly refreshing flavor of the opinion. Here are a some excerpts:

The Findings of Fact are labeled "Cantico I". In part A. captioned "Here Is Set Forth The Story Of The Monument’s Erection And The Subsequent Although Not Necessarily Consequent Events", Judge White explains at length the setting and background of the monument. Focusing on the identity of the defendants, he writes:

The Commissioners during the relevant time period in this case were Henry Few, Kenny Short, and Sam Cole. Mr. Cole unfortunately died after this lawsuit was filed and only seventeen days after his deposition was taken. There is no known connection.

Describing the monument, he says:

This phrasing has been described by all parties to this litigation as the "King James Version" ("KJV") of the Ten Commandments. That description is not grossly inaccurate, but is something of a stretch…. The Monument’s text could best be described as a butchered paraphrase of the KJV. The only real similarities between them are the numerical order of the Commandments and the prodigious use of the idiom "shalt".

"Cantica II" of the opinion—The Conclusions of Law—contain some subheadings ("Cantos") that are direct quotes from Dante. Thus the first subpart is labeled "Justice the founder of my fabric mov’d: To rear me was the task of power divine, Supremest wisdom, and primeval love." Early on, Judge White engages in an extensive discussion of the meaning of "purgatory" in Catholic doctrine, criticizing the 6th Circuit for remarking that the Supreme Court’s two 10 Commandment decisions left them "in Establishment Clause Purgatory".

Particularly interesting is Judge White’s discussion in "Canto C" labeled "Here Is Set Forth The Catechism of McCreary and Van Orden". Focusing on whether the Haskell County monument was part of an integrated historical display, he wrote:

Suffice it to say that the Haskell County courthouse lawn is pure Americana. True, there is no grand integral design of the various monuments and displays on the lawn. They were dreamed up, developed and deposited over the years, each reflecting that generation’s view of what is appropriately historical, artistic and pretty. Perhaps the next generation will add the cannon or a nice shrubbery. In any event, this court does not fathom how artistic integration must be a bedrock constitutional requirement simply because a text of one of the displays contains religious sentiments.

Only a full reading does justice to the opinion.

Circumcision Opponents Being Undercut By Science

Saturday’s Washington Post carries an article about groups that are attempting to make male circumcision, along with female circumcision, illegal. Arguments by the groups are being undercut by the finding that circumcised men were less than half as likely as uncircumcised men to get HIV, and that female to male transmission is cut by 60% by male circumcision. Nevertheless, the group MGMBill.org is attempting to find members of Congress who will introduce the proposed legislation that they have drafted. Their proposal explicitly provides that in applying its prohibitions, "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."

Decalogue Builders Pay More Attention To Precedent Now

The Associated Press today reports that two new 10 Commandment monuments are being erected in southeastern Oklahoma, but with more careful attention to legal guidelines that the courts have set out. At the Atoka County Court House, the monument has several other displays near it such as a war and veterans memorial. At the dedication of the new monument, supporters were careful to talk about a celebration of America and not make it a religious service. In Coalgate, Oklahoma, a new monument is being put up on private property next to the court house lawn. The site will display the Oklahoma, American and Christian flags along with the King James version of the commandments.

Court Orders Mobile Home Park To Allow Religious Use of Clubhouse

Yesterday a San Diego, California trial court ordered Warner Springs Homeowners Association to allow residents at the mobile home park to use the park's common areas for Bible and prayer meetings, according to a release by the United States Justice Foundation. The court rejected the claim of the Homeowners' Association that it had a right to be free of religion in the community clubhouse. The residents' suit had claimed violations of the U.S. and California constitutions and of California's Unruh Civil Rights Act. (See prior posting.) [Thanks to Alliance Alert for the lead.]

West Virginia School's Jesus Portrait Stolen-- Is Case Moot?

The AP yesterday reported on an unexpected twist in the case challenging the constitutionality of a portrait of Jesus hanging in Bridgeport, West Virginia High School. (See prior posting.) Around 4:00 am Thursday morning, an intruder broke into the school and stole the controversial painting. Three security cameras caught the thief in action, but the person's face was obscured. U.S. District Judge Irene M. Keeley has set Feb. 27, 2007 as a trial date in the constitutional challenge. An interesting question is whether, assuming the stolen painting is not found, the case is now moot.

UPDATE: On Saturday, the Times West Virginian reported that the Harrison County School Board accepted Alliance Defense Fund's offer to defend the display of the Jesus portrait. ADF, as well as 7 other law firms, had offered free representation. The $150,000 raised for the Board for defense costs will be held in case the Board loses and is required to pay costs and punitive damages. Also lawyers for both sides say the suit will go ahead even though the portrait has been stolen. The Board has rejected the offer of a replacement portrait for the one stolen, pending the outcome of litigation.

Recent Prisoner Free Exercise Cases

In Dawson v. Schwarzenegger, 2006 U.S. Dist. LEXIS 56226 (ED CA, Aug. 11, 2006), a California federal Magistrate Judge held that a group of challenges under RLUIPA to the California prison system's grooming rules by Native American inmates are moot because the rules have been amended to permit the wearing of hair by prisoners in any style so long as it does "not extend over the eyebrows, cover the inmate's face or pose a health and safety risk".

In Raiford v. Wallens Ridge State Prison, 2006 U.S. Dist. LEXIS 56271 (WD VA, Aug. 11, 2006), a Virginia federal district court rejected an inmate's claim that his free exercise rights were violated when he did not receive appropriate meals for Passover and when he was denied the Common Fare Diet. Inmate Thomas Raiford failed to offer evidence of his religious beliefs requiring him to receive such meals.

In Watts v. Director of Corrections, 2006 U.S. Dist. LEXIS 56193 (ED CA, Aug. 10, 2006), a California federal Magistrate Judge, ruling on summary judgment motions, recommended that Rastafarian prisoner's RLUIPA and equal protection claims in connection with California hair length grooming standards for prisoners go to trial. In its motion the state failed to show that its grooming standards were the least restrictive means of furthering the its interest. The equal protection claim focused on the fact that the state's policy was applicable only to male prisoners. However because the state has subsequently changed its grooming standards, the only relief that can be available is expungement of plaintiff's disciplinary reports.

In Smith v. Beauclair, 2006 U.S. Dist. LEXIS 56561 (D ID, Aug. 11, 2006), an Idaho federal district court denied state prison officials' motions for summary judgment on some of the RLUIPA claims of by an inmate who had requested accommodation of various of his individualized versions of Cherokee religious practices. Plaintiff was permitted to move ahead on his request for accommodation for use of a Sacred Fire, exceptions to the grooming standards, and use of medicinal herbs, but not on his claims for tobacco smoking, daily smudging of his cell and a special diet. The court granted qualified immunity to individual defendants on damage claims against them, but warned that "this ruling should not be construed as a license to ignore future religious accommodation requests from inmates with individualized religious beliefs."

In Price v. Scott, 2006 U.S. Dist. LEXIS 57263 (ND IN, Aug. 14, 2006), an Indiana federal district court ruled against an inmate who alleged that correctional authorities prevented him from practicing his Native American religion in violation of the First Amendment, RLUIPA and the American Indian Religious Freedom Act. The court held that prison officials fully satisfied their obligation to accommodate the plaintiff's religious beliefs when they offered him a transfer to a different prison that had an active Traditional Native American religious group.

German Authorities Say Madonna Concert Might Violate Ban On Insulting Religion

Pop star Madonna will be under scrutiny by German prosecutors Sunday as she performs on tour in Dusseldorf. In her performance, as part of an appeal to her audience to donate to AIDS charities, Madonna, wearing what appears to be a crown of thorns, sings from a mirrored Cross. People Magazine yesterday reported that authorities will be looking to see if the performance violates the ban against insulting religious beliefs in a manner that might disturb the peace.. Authorities do not plan to send observers to the concert, but instead will rely on media reports. The performance may be protected by German laws protecting artistic freedom. Madonna says: "I don't think Jesus would be mad at me and the message I'm trying to send."

UPDATE: It was reported on Aug. 22 that prosecutors have decided against opening an invetigation of Madonna's concert performance. (Myrtle Beach Sun-News.)

Boise, Idaho 10 Commandments Initiative Can Proceed

On Monday the Idaho Supreme Court ruled 4-1 that a challenged ballot initiative can proceed. The initiative asks Boise residents whether a Ten Commandments monument, donated in 1965 by the Fraternal Order of Eagles, should be placed back in a city park. The monument was moved to the grounds of a cathedral in 2004. The case, In re Initiative Petititon for A Ten Commandments Display, (ID Sup. Ct., Aug. 14, 2006), held that the challenge to the initiative was not ripe for adjudication. At issue was whether the initiative called for action that was merely administrative in nature, in which case it is not a proper subject for a voter initiative. The court said that it would not rule on that issue now, because the initiative might never pass, or if it did, City Council might exercise its authority to amend or reject it. Justice Trout dissenting thought that the case was ripe, and that the proposal was administrative so that the city is not required to hold an initiative election on it. Tuesday's Seattle Times covered the decision. [Thanks to Blog from the Capital for the lead.]

House Homeland Security Chairman Endorses Religious Profiling

Today's Newsday reports that Rep. Peter King, (R-NY), chairman of the U.S. House of Representatives Homeland Security Committee, has endorsed religious and ethnic profiling. He would require persons of "Middle Eastern and South Asian" descent to undergo additional security checks, saying "if the threat is coming from a particular group, I can understand why it would make sense to single them out for further questioning." King has said that while not all Muslims are terrorists, all recent terrorists have been Muslim. Legal and law enforcement officials, however, have rejected racial and religious profiling both on constitutional grounds and on grounds of effectiveness.

Jewish Groups Split Over Taking Federal Homeland Security Funds

The current issue of New York's Jewish Week reports that Jewish groups-- usually strong supporters of separation of church and state-- are divided over whether to accept federal funds to increase security at local synagogues. United Jewish Communities and a number of other Jewish groups are urging the Department of Homeland Security to release $25 million that has been appropriated to help non-profits increase their security, and are seeking additional appropriations from Congress for next year. However Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, disagrees. He says: "If our security needs are pressing enough that we are lining up at the public trough, then they should be pressing enough that our own community will make meeting those needs a priority.... It is not healthy for our community to come to depend on the government to take care of our communal needs."

Petition For Cert Filed In Establishment Clause Standing Case

A petition for certiorari to the U.S. Supreme Court has recently been filed by the U.S. Justice Department appealing the 7th Circuit's decision in Grace v. Freedom From Religion Foundation, Inc. The question presented, as described by the brief is: "Whether taxpayers have standing ... to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government." The 7th Circuit found standing. (See prior posting). The underlying claim challenges White House spending for conferences and other activities promoting the President's Faith Based Initiative. The Roundtable on Religion and Social Welfare Policy discusses the petition at greater length. [Thanks to Blog from the Capital for the lead.]

Georgia Tech Changes Speech Code To Settle Suit By Conservative Students

In response to a suit filed on behalf of students by the Alliance Defense Fund, Georgia Institute of Technology has agreed to change portions of its speech code for students living in on-campus housing. Yesterday's Atlanta Journal Constitution reports that the school has agreed to eliminate language that prohibits students from any attempt to "injure, harm" or "malign" a person because of "race, religious belief, color, sexual/affectational orientation, national origin, disability, age or gender." The Christian and Jewish plaintiffs alleged that the speech code infringed free expression by religious conservatives who wish to speak out against homosexuality and feminism. Under the court order issued yesterday embodying the settlement between the parties, Georgia Tech will need court approval if it changes its speech code any time in the next five years. Praising the settlement, Alliance Defense Fund Senior Legal Counsel David French said: "Officials at Georgia Tech had been enforcing draconian speech codes that prohibited any kind of student speech they deemed to be 'intolerant.' This is a tremendous victory for free speech."(See prior posting.)

California Proposal To Fund Mission Repair Formally Defeated In Committee

In California on Tuesday, by a vote of 2-0 the Senate Judiciary Committee formally rejected Senate Constitutional Amendment 32 that would have permitted state funding for repair of California's 21 historic missions. (Palm Springs Desert Sun.) Today's Los Angeles Times sets out the church-state arguments of committee chairman Sen. Joe Dunn-- the money would have funded churches that are used regularly for religious services. However Sen. Abel Maldonado, whose proposal would have placed the funding issue on the November ballot disagrees. He says that the missions are important parts of California's early history. He framed the proposal as a constitutional amendment because, as reported in an earlier posting, the California attorney general believes that funding would violate present provisions in the state's constitution. Earlier, Judiciary Committee staff had suggested a compromise-- specify in the amendment the maximum number of church services that may be held at historic sites that will get state funding. (Ventura County Star.)

5th Circuit Finds Bible Display In Courthouse Monument Unconstitutional

The U.S. 5th Circuit Court of Appeals yesterday issued a fascinating 2-1 decision upholding an Establishment Clause challenge to a monument on the grounds of the Harris County, Texas courthouse. The monument was originally erected in 1953 by a local Christian charity to honor William S. Mosher, a prominent Houston businessman and philanthropist. The top of the monument was a glass-topped display that included a Bible to memorialize Mosher's Christian faith. From 1988 to 1995 the Bible was removed from the monument, and the monument fell into disrepair. In 1995, John Devine was elected judge after campaigning on a platform of placing Christianity back into government. Devine and his court reporter solicited private donations to refurbish the monument, to restore a Bible to the display case, and to add neon lighting around the Bible. In Staley v. Harris County, Texas, (5th Cir., Aug. 15, 2006), the court held that the circumstances surrounding this refurbishment gave a predominately religious purpose to a monument that previously was primarily secular.

A dissent by Judge Jerry Smith argued that the majority has "enable[d] a candidate for political office to alter the character and constitutionality of a longstanding, privately-owned memorial merely by invoking religion and making benign alterations to the monument’s appearance.... This formerly unknown principle of constitutional law-- which perhaps should be crowned the 'Principle of Devine Intervention' --has serious doctrinal and practical consequences."

Yesterday's Houston Chronicle covers the decision. It reports that the county is likely to seek en banc review of the decision.

Councilman Loses In Attempt To Offer Christian Prayers

In Turner v. City Council of the City of Fredericksburg, Case 3:06-cv-00023-JRS (ED VA, Aug. 14, 2006), a federal district court dismissed the claim of city council member Hashmel Turner that his First Amendment rights were violated when he was not permitted to offer a specifically Christian opening prayer at city council meetings. The court found that his opening prayer is government speech, not private speech. Thus, "City Council can restrict what is said on its behalf during the opening prayer without infringing on the speaker’s viewpoint." The court went on to hold that the Establishment Clause prohibits sectarian legislative prayers, and the city's policy of requiring nonsectarian prayer is not an Establishment Clause violation. The decision is covered in today's Richmond Times-Dispatch which says that Turner is likely to appeal.

School Board Will Defend Jesus Portrait

The Harrison County, West Virginia Board of Education has raised more than the $150,000 it needed to mount a defense in a suit brought by the West Virginia ACLU and Americans United to force Bridgeport High School to remove a painting of Jesus that has hung in the school for many years. (See prior postings 1, 2.) The Associated Press yesterday reported that now the board will select lead counsel from among eight national advocacy groups that have offered legal help. Dennis Swindle, a local minister who defends the painting, said: "The ACLU is saying they have the right to come in and find a few people who disagree with the majority and use them to overtake the majority. All we're saying is, 'not without a fight.'" The school board itself has seen the controversy as something of a distraction from its concerns about educational issues.

Family Sues On School Reassignment That Interferes With Religious Class

In Raleigh, North Carolina, a Mormon family is suing the Wake County School board over the reassignment of their younger daughter, Brittany Bailey, to a new high school. The parents say that requiring her to go to a different school than her older sister attends will prevent Brittany from attending an early-morning religious class essential for the family's Mormon faith. WRAL.com reports that previously Brittany went to school with her older sister to school after the religious class. On Tuesday, a judge refused to order that Brittany remain in her old school while the case was being litigated. The school board decided not to make exceptions to reassignments for siblings because it would make it difficult to fill seven new schools.