More on Cutter v. Wilkinson

Today's press release from the Beckett Fund on the Supreme Court's decision in Cutter v. Wilkinson does a good job of emphasizing the primary area in which the Supreme Court's approach differed from that of the Court of Appeals whose decision was reversed:

"The Court squarely rejected the core argument of the court below (and of RLUIPA's detractors) that religious accommodation laws that accommodate only religion violate the Establishment Clause of the First Amendment, because they impermissibly favor the religious over the secular. As the Court explained, "Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall."

"There's a strong argument to be made that the anti-accommodation reading of the Establishment Clause has been dead for a long time, but today's unanimous decision removes any lingering doubt,” said Anthony Picarello, President and General Counsel for the Becket Fund. "Cutter is a win for religious exercise in prison, but more importantly, it is a thumping victory for religion-only accommodations nationwide.”

UPDATE: There is also an excellent discussion of the Cutter case on today's SCOTUSblog.

We May See RLUIPA In the Courts Again

The last time the U.S. Supreme Court examined a statute similar to the Religious Land Use and Institutionalized Persons Act (that it upheld today) was in 1997 in City of Boerne v. Flores. There the Court found that the broader Religious Freedom Restoration Act exceeded Congress' legislative powers. Congress had relied on Section 5 of the 14th Amendment in enacting that law.

RLUIPA is narrower, and relies on Congress' commerce and spending powers. The prisoner provisions in Sec. 3 are limited:
"(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. "

Here is what Justice Ginsberg had to say in footnote 7 about the federalism issues in today's case, Cutter v. Wilkinson:

"Respondents argued below that RLUIPA exceeds Congress' legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents' challenges under the Spending Clause... and the Tenth Amendment..., and declined to reach the Commerce Clause question.... The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents' further arguments.... Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States' choices are not subject to congressional oversight.... Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here.... But cf. post, at 1-2, n. 2 (THOMAS, J., concurring)."

So there may still be another round in the battle over RLUIPA.

Supreme Court Unanimously Upholds RLUIPA in Cutter v. Wilkinson

The US Supreme Court this morning in Cutter v. Wilkinson unanimously upheld the Religious Land Use and Institutionalized Persons Act against a challenge to its constitutionality. The case involved a facial challenge to the Act's application to prisons. Justice Ginsburg's opinion for the Court is available online. So is Justice Thomas' concurring opinion. Here are excerpts from the Court's syllabus (omissions of text are not indicated):

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means."

Section 3 of RLUIPA, on its face, qualifies as a permissible accommodation that is not barred by the Establishment Clause. (a) Foremost, § 3 is compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. Furthermore, the Act on its face does not founder on shoals the Court's prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths.

Section 3 covers state-run institutions -- mental hospitals, prisons, and the like -- in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. But the Act does not elevate accommodation of religious observances over an institution's need to maintain order and safety. An accommodation must be measured so that it does not override other significant interests. There is no reason to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.

While the Act adopts a "compelling interest" standard, "context matters" in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions and anticipated that courts would apply the Act's standard with due deference to prison administrators' experience and expertise.

Finally, RLUIPA does not differentiate among bona fide faiths. It confers no privileged status on any particular religious sect.

In upholding § 3, the Court emphasizes that respondents have raised a facial challenge and have not contended that applying RLUIPA would produce unconstitutional results in any specific case. There is no reason to anticipate that abusive prisoner litigation will overburden state and local institutions. However, should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize an institution's effective functioning, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

Judge Offers Church Attendance As Alternative Sentence

A judge in Laurel County, Kentucky offers some defendants the option of attending church services instead of going to jail or rehabilitation, the Louisville Courrier-Journal reports today. The judge, a devout Christian, has offered the choice about 50 times to repeat drug and alcohol offenders. They may select any religious denomination The judge says that the alternative poses no constitutional problems because it is not mandatory. Other lawyers disagree.

Challenge to California Missions Act Pending

In 2004, Congress passed the California Missions Act authorizing the spending of $10 million in federal funds to preserve 21 Spanish-era missions that are in disrepair. The funds are to be matched by private contributions. Today's Contra Costa Times reports on a taxpayer challenge to the constitutionality of that act filed in December 2004 by Americans United for Separation of Church and State. AU's director, Rev. Barry Lynn, argues that if the Establishment Clause means that the government cannot build churches, it also means that it cannot spend funds to repair them. He also objects to use of some of the funds to preserve religious art and artifacts in the missions. Many others, however, argue that preservation of these kinds of historical buildings with government funds creates no Constitutional problem, especially since very little religious connotation remains associated with these historical sites.

Another View of the Van Orden Case

The San Antonio Express-News today carries an article on Van Orden v. Perry, one of the pending US Supreme Court Ten Commandments cases. The reporter offers an interesting perspective from the Texas state house. I mention the article because the reporter spoke with me at length in preparing it and quotes me, but without the nuance that I hoped I had communicated. As reported, I predicted that the Texas display would be upheld, partly because of the Justices concern about forcing bulldozers to tear down these displays around the country. But I also emphasized the peculiar history of the monuments that were furnished by the Fraternal Order of Eagles. Similarly, though not in the article, I predicted that the Kentucky display in the companion case before the Court would be struck down because of its different history. By the way, my record on accurately predicting Supreme Court results is not good.

Op Ed On Negative Impact of Protecting Religious Practice

Writing in Sunday's Observer, Nick Cohen has a provocative op ed criticizing the trend in both the United States and Europe to protect religious practice and belief through workplace religious freedom laws and blasphemy statutes. He argues that the price of these laws are unacceptable limitations on the freedoms of others in society. Says Cohen of fundamentalist religious believers: "Their life and faith must be one and no compromises can be made. In the past, most people who lived outside theocracies either compromised or withdrew into communities where they found sanctuary from the profane by living and working with co-believers."

President Bush At Arlington Memorial Day Ceremony

As reported by Fox News, President Bush spoke today in a Memorial Day ceremony at Arlington National Cemetery. A transcript of his remarks was released by the White House. Religious references were almost entirely absent from the message he delivered before placing a wreath at the Tomb of the Unknown Soldiers. He mentioned "God" three times, all in contexts which seem to clearly qualify for the "ceremonial Deism" label.

New Church-State Book Due in July

New York University Professor Noah Feldman's new book, "Divided By God-- America's Church-State Problem and What We Should Do About It" is scheduled for publication on July 6. Publisher's Weekly reports that Farrar, Straus & Giroux advanced the publication date to coincide with the expected Supreme Court ruling on public display of the Ten Commandments.

Commentary: Our National Motto and the Over-Reading of Precedent

In the past the Supreme Court has upheld the placing of our national motto “In God We Trust” on coins. Dicta in Lynch v. Donnelly is often pointed to. Justice O’Connor justified the practice because the history and ubiquity of the motto on our coins means that its use there is not understood as a government endorsement of religion. Justice Brennan described the motto as “ceremonial Deism”, words that through their rote repetition have lost any significant religious content. However today this precedent is often being over-read.

I would suggest that the Supreme Court’s language does not give the government totally free rein to use the words of the motto when the intent and effect is to in fact promote religion. (see related posting) This idea was driven home by an obscure story in yesterday’s Anderson SC Independent-Mail. It reported that in two neighboring Georgia counties, “In God We Trust” will soon be hanging in school classrooms. The Hebron Baptist Association bought over 500 copies of the motto and gave them to school districts. The superintendent in one of the districts said that she is “glad this is something that the school system can do.”

This is not a new idea. Some time ago, the American Family Association began a national campaign to get the national motto hung in every school classroom in the country. It said it would be “a reminder of the historic centrality of God in the life of our republic”. A number of states have enacted laws specifically permitting the posting of the motto in classrooms. In this context, the motto does not seem to have lost religious content. If it had, why would churches be so intent on funding its posting? In today’s context, the posting of these words is decidedly seen as an endorsement of religion. Holdings, not to mention dicta, in opinions need to be read contextually, and not latched onto with strict literalism as a pretext to violate the spirit of the Constitution’s Establishment Clause.

Flags of Christian Churches Advocated to Oppose Confederate Flag

Yesterday’s Galax Virginia Gazette reports the latest installment in the battle of flags. In April, Carroll County supervisors accepted funds from the Jubal Early Sons of Confederate Veterans Camp 1691 to erect a new flagpole on the courthouse lawn. It is to be used to fly flags honoring veterans of all wars from Carroll County, including those from the Civil War. This means that the Confederate flag will sometimes fly there. Many residents have objected to that. One opponent, Gary Marshall, director of the Bethesda Heritage Trust, has now requested that yet a third flagpole be set up for him to use to fly historic Christian flags of various denominations. He says that these are also part of the county’s history. [Thanks to Becky Dale on Religionlaw listserv for this information.]

Commentary: What "God-Talk" Is Permissible At School Graduations?

With graduation season upon us, a story today from Agape Press reminds us of the continuing ambiguities in the rules regarding what may be said at public school graduation ceremonies. Thirteen years ago in Lee v. Weisman, the Supreme Court struck down on Establishment Clause grounds a prayer by an invited clergyman at a graduation ceremony. The Court's holding was based both on the school's involvement in inviting the clergyman, and on the peer pressure placed on students attending graduation to show their support for the content of the prayer by standing or remaining respectfully silent.

Now, in a Wisconsin high school, the class valedictorian included the following in her talk: "There is Someone Who can make the journey seem a lot easier. His name is the Lord Jesus Christ. He is the ultimate source of success, love, laughter, dreams and the future. He is the Creator of the universe who longs to have a relationship with you." School officials required students to submit their speeches in advance. When this student did, the school told her to delete references to religion, God or Jesus. However, acting on the student's behalf, Liberty Counsel convinced school authorities that their action amounted to unconstitutional censorship, and that neutrality required the school to permit the student to share her gratitude to God with other students and family members.

I am not sure that is correct. The student prayer here was far more sectarian than the rather neutral one at issue in Lee v. Weisman. Students in the audience feel equal peer pressure to sit silently and accept the prayer. School officials have control over the content of student speeches-- they require them to be submitted in advance. Just as the clergyman was invited to speak in Lee, the valedictorian was invited to speak here by the school. Nothing requires a school to have a speech by the valedictorian at graduation, just as nothing requires it to have an invocation. Perhaps schools are merely responding to whichever lawyers lay siege to them first.

How Can Muslim Airport Cabbies Pray?

The question of when government must make exceptions to neutral generally applicable regulations in order to accommodate religious practice arose anew this week at the Cleveland, Ohio airport. The Associated Press reported yesterday on the problem faced by Somali immigrants who drive cabs and wish to carry out their duties to pray 5 times daily. Often prayer time comes while their cabs are in line at the airport terminal. When that happens, the cabbie must go into the airport rest room to wash, and must then pray standing and kneeling on the ground facing Mecca. Doing this runs afoul of airport regulations that prohibit leaving cabs unattended within 300 feet of the terminal. USA Taxi Company says that a third of its drivers have quit after receiving $150 tickets (plus $69 court costs). Police say that they are just enforcing a general rule that furthers safety and security, without regard to the offender's cultural background.

New Case: Workers Comp When Hajj Interferes With Employment

Over the years, the US Supreme Court has upheld the rights of employees to receive workers compensation even though they refuse new employment, if the refusal was for religious reasons. Yesterday, a Wisconsin Court of Appeals decided Rashad v. Labor & Indus. Review Commn., a case of this sort with a new twist. Rashad, a college instructor, refused a Spring Semester position because it would interfere with her making the Hajj (pilgrimage to Mecca).

The WI Workers Compensation Statute (Sec. 108.04(8)) permits applicants to refuse work for "good cause". The Labor Commission however had held that there was not good cause here because Rashad was not obligated to make the Hajj in any particular year. Rashad disagreed, arguing that she was required to make the pilgrimage at the first opportunity, and that this was the first time that she was financially able to do so.

The Court of Appeals held that there was no evidence in the record to support the state board's apparent finding that there was not a religious necessity that the pilgrimage be made in one particular year. The court remanded for further factual findings and for consideration of the constitutional issues that are involved if workers compensation is denied.

Wisconsin Will Liberalize Restrictions on Prison Visitors

Wisconsin has responded quickly to a suit filed by a Muslim woman who was forced to remove her headscarf (hijab) in order to visit an inmate in a Wisconsin prison. (See prior posting). The Baraboo News Republic reports today that one day after the suit was filed, the Department of Corrections has decided to change its policy. The Wisconsin Secretary of Corrections said it was never their intent to discriminate against someone because of religious beliefs when this security measure designed to prevent the hiding of contraband was put into place. Originally the woman visitor had offered to permit a female guard to search her headscarf, but this alternative was refused.

Constitutionality of "Charitable Choice"-- Part 3

Today Findlaw carries the third in a series of articles by Vikram Amar and Alan Brownstein on the constitutionality of the "Charitable Choice" bill (H.R. 27) that was recently passed by the House of Representatives. (see prior postings on Part 1 and 2 ). They argue that discrimination on the basis of religion in staffing government funded programs is fundamentally different than discrimination by secular organizations that hire only individuals who share their ideological beliefs.

Quebec Rejects Islamic Family Law Tribunals

The National Assembly of Quebec voted unanimously today to reject any establishment of Islamic tribunals in Quebec. (Official Transcript of today's session). According to a report in Macleans, this vote was intended to pre-empt a growing movement in Canada to have Sharia applied by religious tribunals in Muslim family law matters. A debate over the use of such tribunals has been going on in Ontario.

Court Upholds Government Funds To YMCA

In Conley v. Jackson Twp. Trustees, 2005 U.S. Dist. LEXIS 9860 (N.D. Ohio, 4/14/2005), which became available today, a U.S. District Court rejected an Establishment Clause challenge to government funding of a local YMCA. Jackson Township, Ohio gave the YMCA annual grants, office space and it allocated $1 million toward the Y's new building. The court held that the YMCA is not a pervasively sectarian institution and that there is no evidence that the government aid funds specifically religious activities of the organization.

Florida Schools Assign Genesis

Courts have permitted schools to teach the Bible as literature. The South Florida Sun-Sentinel reports today that two high schools in Boca Raton, Florida have assigned the book of Genesis (or parts of it) to all 11th-graders as summer reading. The assignment is supposed to prepare students for allusions in much of the American literature that they will study next year. Students in Advanced Placement and Honors classes have other reading assignments over the summer as well. For students in regular English courses, their only assignment is from Genesis. Some parents question whether the assignment violates principles of separation of church and state. School officials say that they will offer alternative assignments where parents object to the reading. They also say that students who do not own a Bible can read the assignment on the Web.

Religious Affirmative Action in Indian University

A debate is raging in India on religious affirmative action in universities. Aligarh Muslim University has reserved 50% of its seats for Muslims in 43 of its 289 courses. The controversial move is supported by the Indian government. Yesterday the University's vice chancellor defended the legality of the program under Article 30 of the Indian Constitution that protects minority educational institutions, according to a report in the Deccan Herald. Today, the Students Islamic Organization of India gave a more detailed legal defense of the policy according to a report in the New India Press.

Wisconsin Prison Sued Over Treatment of Muslim Visitor

In Wisconsin, a Muslim woman, Cynthia Rhouni, is suing prison authorities. Male prison guards at a Wisconsin maximum security facility required her to remove her headscarf (hijab) before she was permitted to visit her estranged husband who was being held in the prison facility. New York Newsday reported yesterday on the suit which charges a violation of Rhouni's constitutional right to free exercise of religion. She is being represented by the Wisconsin Civil Liberties Union. The full complaint describes at length the circumstances of Rhouni's prison visit and the impact of the events upon her.

Indiana Appeal of Order Prohibiting Raising of Child as Wiccan

In Indianapolis, Indiana, an unusual joint custody decree is being appealed. In granting a divorce to a couple, both of whom are Wiccans, a judge prohibited either parent from exposing their child to "non-mainstream religious beliefs and rituals". The Indy Star reports today that even though both parents objected to the order, the court entered it after reading the report of the Domestic Relations Counseling Bureau. Represented by the Indiana Civil Liberties Union, the father, who has organized Pagan Pride Day in Indianapolis, is asking the state court of appeals to strike the provision in the divorce decree. He claims that it infringes on the parents' right to control the religious education of their child. Unlike more typical divorce cases in which parents disagree about the religious training of their child, here the order was issued without either parent requesting it.

In Scotland-- Religious Discrimination Suit Against Catholic School

The Scottish press today is reporting on a discrimination case against a Catholic high school under way in an Employment Tribunal in Glasgow. Suing under a 2003 law that bans religious discrimination, a math teacher is protesting the school's refusal to consider him for a position as principal teacher of pastoral care because he is an atheist. Apparently Catholics who send their own children to non-religious schools and Catholics who are divorced and remarried are also denied approval for these kinds of positions in the school.

Viet Nam Continues to Persecute Protestants

Despite a suggestion at the beginning of this month that Viet Nam was liberalizing its treatment of Protestant groups (see prior posting), Radio Free Asia today carried a long report from three provinces on harassment and beatings of Protestants as well as attempts to force them to renounce their beliefs. Viet Nam remains listed by the United States as a "country of particular concern" on issues of religious freedom (see prior posting).

UPDATE 5/26/05: Vietnamese Foreign Ministry defends religious rights situation in Viet Nam after critical 2005 Amnesty International Report.

Italians Reinstate Defamation Claim Against Author by Muslim Activist

The conservative news and opinion blog Pardon My English today has a posting on reports of Italian authorities ordering author and journalist Oriana Fallaci to stand trial for defamation of Islam. The suit grows out of her 2004 book "La Forza della Ragione" (The Force of Reason). Prosecutors had originally dropped the charges on free speech grounds, but a local preliminary judge has reinstated the suit that was brought by Adel Smith, a high-profile Muslim activist. (See earlier posting about Smith).

Controversial Jurist Rejected As Amicus in Evolution Case

The Columbus ,GA Ledger Enquirer reported yesterday on the rejection of an amicus brief in an 11th Circuit Court of Appeals case raising the constitutionality of evolution-disclaimer stickers on school textbooks. Former Alabama Chief Justice Roy Moore, who gained notoriety in his attempt to place a large Ten Commandments monument in the Alabama Supreme Court building, filed a brief along with the Foundation for Moral Law (full text of brief). In an opinion dated May 20 in Selman v. Cobb County School Dist., Acting 11th Circuit Judge William Pryor rejected the brief. He said that its arguments were irrelevant because they asked the Court of Appeals to overrule Supreme Court precedent. Several amicus briefs from others were accepted.

Judge Pryor has himself been the subject of controversy. He is currently sitting on the Court by reason of a recess appointment made by President Bush last year when Pryor’s confirmation was filibustered by Democrats. Pryor's nomination has been resubmitted to the Senate, and is likely to be confirmed now that a compromise on judicial appointments has been reached by Senators.

In response to the rejection, Moore said it demonstrated "clear contempt for the text of the Constitution".

Recent Law Review Articles on Church-State

Among recently published Law Review Articles indexed by SmartCILP are:

South Dakota Prof. Patrick M. Garry's, The Myth of Separation: America's Historical Experience With Church and State. 33 Hofstra L. Rev. 475-500 (2004).

Adam M. Smith, The Perplexities of Promoting Religious Freedom Through International Law. (Reviewing Robert Drinan, Can God and Caesar Coexist? Balancing Religious Freedom and International Law.) 30 N.C. J. Int'l L. & Com. Reg. 733-757 (2005).

Court Refuses to Dismiss Catholic School Teacher's Claim

In a decision that became available today, Lazor v. Catholic Elementary School Sys. of Diocese of Bridgeport, 2005 Conn. Super. LEXIS 1145 (April 29, 2005), the court rejected a Catholic school's claim that the First Amendment precludes the court from proceeding with a teacher's breach of contract and wrongful termination claim. When the Pope requested that Catholics fast and pray for peace, teachers were asked to have their students write President Bush to support a peaceful resolution of the conflict in Iraq. Teacher Bonnie Lazor refused to assign this unless students had parental consent. She was fired.

Defendants invoke the "ministerial exception": where the reason for a discharge implicates religious teachings of the employer, the First Amendment precludes courts from interfering. The court held that while it cannot become entangled in theological disputes, here the dispute would not involve the court in determining the validity of religious principles. Instead the question is what was the real basis for Lazor's dismissal and whether proper procedures were followed in dismissing her.

Council Vote Against Christian Services Brings Recall Effort

The Detroit Metro Times reports this morning on an effort in Troy, Michigan to recall the mayor and mayor pro-tem because of their votes earlier this year to prevent the use of city property for a Christian-only religious service. While Troy city council eventually approved a Christian National Day of Prayer Service that was held on May 5, the newly-formed Troy Committee to Protect Free Speech is now trying to show their displeasure with those who voted against it. Mayor Louise Schilling explained her vote, saying, “It is not the role of elected officials to promote any one group or religion above another.”

US House Calls on Romania to Compensate Religious Groups

Yesterday, the U.S. House of Representatives passed H. Res. 191 "urging the government of Romania to recognize its responsibilities to provide equitable, prompt, and fair restitution to all religious communities for property confiscated by the former Communist government in Romania." The lengthy resolution sets out the history of confiscation of property from religious communities and calls upon the government of Romania to undertake a number of specific legal steps to implement its responsibilities.

AZ Takes First Step Against FLDS

The Fundamentalist Church of Jesus Christ of Latter Day Saints has posed a host of problems for state officials in Arizona, Utah and west Texas. As discussed in a prior posting, the group practices polygamy and is suspected of sexual exploitation, domestic violence, and welfare and tax fraud. An editorial in today's Arizona Republic points out that the Arizona legislature has recently dealt with one aspect of the FLDS problem. It enacted House Bill 2417 which permits the state to place the Colorado City school district into receivership for insolvency or for gross financial mismanagement. The school district, largely controlled by Church officials, owes $1.5 million to the Arizona School Risk Retention Trust. As pointed out in the earlier posting, authorities claim that school payrolls have been padded with jobs for Church members. Also the district purchased an airplane even though it was unable to meet obligations for teachers' salaries.

The editorial calls for additional action against FLDS, calling it "a cult [that] uses the trappings of religion to exercise complete control over its followers."

New Article on SSRN on Faith Based Initiative

George Washington University Law Professors Ira C. Lupu and Robert W. Tuttle have posted a new article on SSRN titled The Faith-Based Initiative and the Constitution. The paper, which will appear in Vol. 55, No. 1 of the DePaul Law Review discusses many of the constitutional issues raised by President Bush's Faith Based and Community Initiative.

New University Press Books of Interest

In June, Princeton University Press is publishing a new book by Winnifred Fallers Sullivan, Dean of Students at the University of Chicago Divinity School. The book is titled The Impossibility of Religious Freedom. In it she claims that the idea of religious freedom has become a force for intolerance in American society. She builds on her experience as an expert witness in a case involving the placement of religious markers in a city-owned burial ground in Boca Raton, Florida.

Harvard University Press has published a new book edited by Mary Jo Bane, Brent Coffin and Richard Higgins, titled Taking Faith Seriously. It uses nine case studies to show the impact of religion on civic life.

Harvard University Press has also published Michael Ruse's new book, The Evolution-Creation Struggle. He traces the long struggle between opposing ideologies and finds similarities in the evangelical attitudes of evolutionists and fundamentalists who oppose them.

Amish Custody Suit Raises Parental Religious Rights Issue

An unusual fight in the Iowa courts over custody of a 14-moth old girl is the subject of an article in today's Waterloo Cedar Falls Courier. The child was born out of wedlock to an Amish woman. The child's father is a non-Amish businessman. The mother is seeking sole custody so that the child can be raised in the Amish life style. She claims that it would be frightening and confusing for the child to be exposed to both Amish and English cultures. Arguing against the child's father sharing in custody, the mother says, "His church is different --- they sing different songs." The court faces the question of whether the "best interest of the child" calls for limiting the the rights of the father to be involved in his child's religious instruction.

Uzbeki Backlash Against Churches

After the massive casualties earlier this month in clashes between Uzbekistan troops and protesters, today Forum 18 reports that religious organizations have fallen under suspicion. In a number of cities, Uzbeki officials have visited Protestant churches to find out who attends and have taken church documents. However, Uzbekistan's President sees his main challenge as coming from Hizb-ut-Tahrir, a group whose goal is unite Muslims of the world into a single Caliphate.

Iraq's Yedizi Seek Constitutional Protection

Middle East Online reports today on efforts of the minority Yedizi community in Iraq to obtain protection through Iraq's new constitution. The Yedizis, who have historically been discriminated against, are a pre-Islamic religion that does not believe in heaven or hell and worships Satan. The Yedizi community, which is Kurdish, is found largely in Mosul and in the Sinjar Mountains near Syria. Three Yedizis were recently elected to Iraq's parliament as part of the Kurdish Alliance.

Religious Song Excluded From School Talent Show

Earlier this month, Frenchtown, New Jersey school officials refused to permit a second grader to sing "Awesome God" at her elementary school's talent show. The superintendent argued that the religious content of the song made it inappropriate. Over the weekend, the AP reported on a lawsuit filed in federal court on behalf of the student by the Alliance Defense Fund. The suit charged that the girl's free speech and due process rights were infringed. The judge refused to issue a temporary restraining order to permit the girl to participate in the show that was held last Friday. However, the court said that the suit could continue. The student's attorney pointed out that one of the acts that would be in the show was based on the opening scene in Macbeth. He complained, "They've got a scene about boiling animals and witchcraft, but they won't allow a song about God."

Commentary: Thinking About the Upcoming Ten Commandments Decision

First Amendment lawyers await the highlight of the Supreme Court's current term-- the decision on when, if ever, the Ten Commandments can be posted or planted on public property. In 2003, Human Events published a fascinating photo essay showing photos of varying of depictions of the Ten Commandments on federal buildings in Washington, DC. What got me thinking was the fact that in some of these depictions, the tablets have only the Roman numerals I through X on them. Are these subject to the same rules as tablets which carry actual text? An 11th Circuit case, King v. Richmond County, decided in 2003, found that the use of only Roman numerals made it less likely that the depiction of the Ten Commandments on a court clerk's seal had the effect of promoting or endorsing religion. However, this was treated as only one of many relevant factors.

Lawyers also are speculating on just when between now and the end of June the Court will hand down its decision. Any chance it will be on June 13 or 14? That is the Jewish holiday of Shavuot, which commemorates the giving of the Ten Commandments to Moses at Mt. Sinai. Do the Justices really have that exquisite a sense of timing?

By the way, the parties' briefs to the Supreme Court in both Van Orden and the McCreary County cases are available online.

NYT Magazine Features Sen. Rick Santorum

The New York Times Magazine this morning carries a picture of Senator Rick Santorum on its cover and features a long article profiling him. Santorum is a leading proponent of funding faith-based social services. His conservative Catholic beliefs strongly influence the policies he promotes. Michael Sokolove, the author of the article, contrasts Santorum's views with those of President John F. Kennedy who supported clear separation of church and state: "It is fair to say that Santorum believes in a more complementary relationship between church and state-- respective jurisdictions, yes, but with many more bridges and emissaries connecting them."

Rural La. Attitudes Toward ACLU and School Practices Explored

Attitudes in rural Louisiana about religion and schools are the subject of an article in today's Tuscaloosa News. The 5th Circuit is presently considering an appeal of a judgment obtained by the ACLU against the Tangipahoa Parish school board (see prior related posting). It enjoined the board from opening its meetings with a lengthy prayer that mentions Jesus. The article quotes an influential evangelical preacher who heads a church outside of New Orleans, Rev. Louis Husser, as saying: "The ACLU defends pedophiles. You have to understand where they're coming from."

The article also reports that some fundamentalist parents are upset over a thumbprint machine used in one high school to identify students. They believe it is a forerunner of the Antichrist. Again, Rev. Husser is outspoken: "We know that there are electronic devices that will be used in the End-Time by the Antichrist. Some feel that this is leading into some of the tactics of the Antichrist, which is a cashless system."

CLS Input on Next Supreme Court Nominee

American United's Wall of Separation blog carried an interesting posting yesterday on the White House's preparations for selecting the next US Supreme Court nominee. It discusses input to the White House from the Christian Legal Society whose top candidate for the post is 10th Circuit Court of Appeals Judge Michael W. McConnell. McConnell is known for supporting school vouchers, school prayer and more religious involvement in government. The second and third choices of the Christian Legal Society are Judge Edith Jones (5th Circuit) and Judge Samuel Alito (3rd Circuit).

Religion Classes Being Largely Removed From Algerian High Schools

In Algeria, Islamic conservatives are opposing a decision of the education minister to remove Islamic studies as a requirement in high schools. According to a Reuters report today, the curriculum change is part of an attempt to modernize schools and reduce unemployment. Islamic studies would remain a minor course in some specialties, and would be an elective for students at the university level. The government's move is seen as reducing the influence of Islamists on an increasingly Westernized society in Algeria.

President At Natl. Catholic Prayer Breakfast

President Bush spoke at Friday's second annual National Catholic Prayer Breakfast. Over 1600 people, including 14 members of Congress, attended. The Washington Post reports today that the breakfast is modeled on the Protestant prayer breakfast that has been led by members of Congress for over 50 years. It is part of a growing number of religious events designed to attract participation by public officials. The Post reports that at these event, public officials "have become adept at at finessing the rituals of other faiths -- such as when Bush, a Methodist, shuffled his papers yesterday while others crossed themselves."

In his remarks at the event (full text), the President said: "This morning we first thank God for the shared blessings of American liberty. Catholics have always known that a society built on respect for the religious beliefs of others would be a land where they could achieve and prosper." Praising the recently-elected Pope Benedict XVI, Bush said: "Catholics and non-Catholics alike can take heart in the man who sits on the chair of St. Peter, because he speaks with affection about the American model of liberty rooted in moral conviction."

New Cambridge Press Publications on Church-State

Cambridge University Press has announced the publication of a new book by Cardozo Law School Professor Marci A. Hamilton, titled God vs. the Gavel: Religion and the Rule of Law. The publisher describes the book as a challenge to "the pervasive assumption that all religious conduct deserves constitutional protection." The description continues: "While religious conduct provides many benefits to society, it is not always benign. The thesis of the book is that anyone who harms another person should be governed by the laws that govern everyone else - and truth be told, religion is capable of great harm. This may not sound like a radical proposition, but it has been under assault since the 1960s."

On SSRN, Prof. Daniel O. Conkle, Indiana University Law Schoool, has posted Indirect Funding and the Establishment Clause: Rehnquist's Triumphant Vision of Neutrality and Private Choice , which will appear as a chapter in a new Cambridge University Press book, The Rehnquist Legacy.

ACLU Challenges School's Denial of Excused Absence for Religious Activity

The Merriville Indiana Post Tribune reports today on a law suit by the Indiana Civil Liberties Union against Indiana's Tri-Creek school district attacking the school's excused absence policy. The suit was filed on behalf of the parent of a middle-school student. The student, a member of the United Church of God, attended the church's Festival of the Holy Days. His school issued him 5 unexcused absences and informed his parents that one more unexcused absence could result in his losing class credit or being expelled. The suit seeks to require the school board to change its policy to expand the availability of excused absences. Currently only illness, death of a family member and court appearances are eligible. The suit also asks that the student be permitted to make up work missed during his absences.

Vt. Limits On Vanity Plates Challenged

Agape Press reported yesterday on a lawsuit filed by the Alliance Defense Fund challenging the restrictions that Vermont places on the types of "Vanity" license plates it will issue. The suit was filed on behalf of Shawn Byrne who had applied for a license plate reading "John316". The reference is to a verse in the New Testament reading: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life." Vermont statutes (Title 7, Sec. 304(d)) require the Department of Motor Vehicles to refuse to issue plates with numbers and letters that refer to race, religion, color, deity, ethnic heritage, gender, sexual orientation, disability status, or political affiliation. The lawsuit claims that it is unconstitutional to categorize such religious references as offensive.

Russian Religious Discrimination Alleged

Radio Free Europe reports today on a statement by human rights activists meeting in Moscow criticizing Russia's treatment of religious groups other than the Russian Orthodox Church. Pointing to growing signs of intolerance, they allege that law-enforcement officials make it difficult for minority religious groups to find locations for their houses of worship and that visas are increasingly being denied to foreign representatives of religious groups. Synagogues and Baptist churches have been vandalized. Only the Russian Orthodox Church received government funding for church buildings. There is also growing anti-Islamic feelings, stemming largely from the conflict in Chechnya.

Conyers To Introduce Resolution Supporting Respect for Koran

Townhall Newswire reports today that Michigan Congressman John Conyers will introduce a resolution in Congress encouraging that the Koran, like the holy books of other religions, "be treated with dignity and respect". The resolution goes on to condemn bigotry and intolerance against any religious group, including Muslims. This resolution and a new "Explore the Quran" campaign by the Council on Islamic-American Relations come in response to a May 9 Newsweek report (now retracted) alleging that US interrogators at Guantanamo Bay had flushed a copy of the Koran down a toilet to "rattle" Muslim detainees who were being questioned.

Graduation In Church Continues Despite Judge's Doubts About Constitutionality

Florida Today reports that a Florida Federal District Court yesterday denied a temporary restraining order to Brevard County high school parents who object to the location of today's graduation ceremonies. Four schools have scheduled their graduations for Calvary Chapel, arguing that it is the only indoor facility that can seat the expected audience of 3,500. Other articles pointed out that alternative locations available would not have been handicap accessible.

However, Middle District of Florida Judge Gregory Presnell was not happy with the choice of locations. Rather, he said that even though the ceremonies probably violate the constitution, it would be too disruptive to move them on such short notice. During the hearing the schools agreed to two changes in their plans: diplomas will be handed out at the side of the stage so that the church's cross will not be in graduation pictures, and the graduation program will carry a disclaimer explaining that the ceremonies are intended as secular events.

The director of Americans United for Separation of Church and State that filed the suit on behalf of the parents was quoted earlier by the Daily Review as saying: “This kind of symbolic joining of government and religion makes some families feel like they’re second-class citizens in their own communities, and that should never happen.”

"Fresh Air's" Debate on Separation of Church and State

An extensive debate on the separation of church and state was featured yesterday on National Public Radio on Terry Gross' program Fresh Air. The full audio of 20-minute interviews with two authors on opposing sides of the issue are available online. Arguing for greater involvement of religion with government was D. James Kennedy, head of the Statesman Institute which furnishes public officials with resources to integrate biblical principles into lawmaking. On the other side, defending separationism was Frederick Clarkson, author of Eternal Hostility: The Struggle Between Theocracy And Democracy.

British Barrister To Criticize Proposed Religious Hatred Bill

The British online newspaper, Telegraph.co.uk, carried an interesting report of the Margaret Howard Memorial Lecture to be delivered today at Oxford by barrister David Pannick, QC. Pannick will strongly criticize the Religious Hatred bill proposed in the Queen's speech earlier this week (see prior post). Pannick will argue that race and religion should be treated differently. Race, he argues, is an immutable characteristic, but religious belief is voluntarily chosen. He will say: "Unlike racial groups, religions usually make claims about how society should be run. Religious beliefs have a significant impact on the way adherents treat each other and strongly influence how society is organised. Critical comments on religious beliefs may serve a valuable function in identifying and remedying abuse of power." He fears that the new bill will chill speech by novelists, playwrights and comedians who often engage in irreverent criticism.

ACLU Sues For Religious Rights On Behalf of Detained Sikh Refugee

The ACLU in San Francisco announced today a suit filed on behalf of Harpal Singh Cheema, a Sikh who fled to the United States seeking asylum from persecution in India. Cheema's asylum claim has been wending its way through administrative and judicial hearings for many years. Immigration authorities placed Cheema in custody pending action on his asylum application. In 2002, he was transferred to the Yuba County Jail. Jail authorities have refused to allow Cheema to leave his bed wearing his turban, even though a central tenet of his religion is keeping his head covered. In the full complaint, the ACLU alleges that this violates Mr. Cheema's federal and state constitutional rights to free exercise of religion as well as the federal Religious Freedom Restoration Act and the Religious Land Use and Institutionalized Persons Act.

Church-State Separation Urged Internationally

According to a report today by Ecumenical News International, delegates to this year's conference of Liberal International (an association of liberal political parties from around the world) have expressed concern about the failure of many countries to implement the separation of church and state. The May 14 resolution of the conference described freedom of belief and state neutrality toward religion as the targets of fundamentalist terrorism.

Bush Urged to Raise Issue of Religious Freedom for Egyptian Copts

US Newswire reports today that the U.S. Copts Association has urged President Bush to raise the issue of Egyptian Christian human rights with the prime minister of Egypt when Bush meets him today. In a letter (full text) to President Bush and an ad in the Washington Times signed by Coptic leaders around the world the Association claimed that the Egyptian government endorses kidnapping and forced conversion of young Coptic women, and destruction of Christian villages and houses of worship.

Good News Clubs Challenge Schools' Discriminatory Fees

Last week (May 12) Liberty Counsel announced that it had filed a law suit against a California school district on behalf of Child Evangelism Fellowship (CEF). CEF sponsors the Good News Clubs, after-school elementary school religious groups. The Chico Unified School District insisted that the Good News Clubs pay a fee to cover the direct costs of using school facilities after school hours, while not charging that fee to non-religious groups such as the scouts and the 4-H clubs. A report yesterday from Agape Press quotes CEF's attorney as saying that the school's discriminatory fee policy is unconstitutional. He describes as "absolutely ludicrous" the school board's position that it is required to charge a fee to religious groups in order to avoid promoting religion.

Turkey's Ban on Muslim Headscarfs Before Human Rights Court

ADN Krononos International today that the European Court of Human Rights Great Chamber has begun hearing arguments today in an appeal challenging Turkey's law that prohibits Muslim women from wearing headscarfs in Turkish universities. The student challenging the law was dismissed from Istanbul University's Faculty of Medicine for refusing to remove her headscarf. The University claims that the ban is designed to prevent religious fundamentalists from pressuring other students. The lower court had upheld the law as consistent with Turkey's secular constitution. The student's lawyers will argue that the law violates Article 9 of the European Convention on Human Rights that protects religious freedom. Turkey, however, will point to the provisions in Article 9 that permit states to limit freedom of religion and expression to protect the "public order" and the "rights and freedoms of others".

Government Funds Faith-Based Juvenile Correction Programs

Fox News reported yesterday on the country's first group of federally-funded faith-based halfway houses and mentoring programs for juvenile offenders. The idea is being tested at six detention facilities across Florida. The offenders study the Bible and join in organized prayer as part of their correctional program. While the curriculum is Christian, offenders are linked with volunteer mentors of all faiths who work with the juveniles for a year after they are released. Critics of the program argue that it has crossed the line into prohibited government financing of religious teaching.

WI Considers Protection of Pharmacists Who Refuse To Fill Birth Control RX's

The Wisconsin legislature held hearings yesterday on a proposed law to protect pharmacists who refuse on religious grounds to fill prescriptions for birth control pills or emergency contraception. The Twin Cities Pioneer Press reporting today on the hearings says that last month the Wisconsin pharmacy board reprimanded a pharmacist who refused to transfer a college student's birth control prescription. (See related prior post on Illinois). Four other states already have protections like those being considered in Wisconsin. Opponents say the bill would deny women access to contraceptives prescribed by their doctors.

11th Circuit: Prison May Refuse To Allow Shoes to Be Removed In Chapel

The US Eleventh Circuit Court of Appeals on May 13 upheld the dismissal of a Florida prisoner's Free Exercise of religion claim. In Williams v. Sec'y. for Dept. Corr. the court found that "the prison's policy of prohibiting Williams from removing his shoes before entering the prison chapel was reasonably related to the legitimate penological objective of maintaining safety and security."

Is Indian Government Planning To Expropriate Hindu Temples?

A puzzling report showed up today on the website of the Press Trust of India. The story says that the United Progressive Alliance government of India has proposed to a committee of Parliament that the government acquire all Hindu temples in the country. Supposedly the government is also planning to tax the earnings of temples and charitable institutions. The head of Vishwa Hindu Parishad , a Hindu social service and educational organization, claims that "this is a conspiracy to destroy Hindu institutions". In a number of Indian states, temples are already under government control. The head of VHP said that in those states, priests were being underpaid and governments were misappropriating temple money.

ACLU Challenges Federally Funded Abstinence Program

Yesterday the ACLU announced that it has filed suit in federal district court in Massachusetts against the US Department of Health and Human Services challenging federal funding of an abstinence program known as the Silver Ring Thing. Funded with over $1 million in federal grant money during the past three years, the program describes itself as "offering a personal relationship with Jesus Christ as the best way to live a sexually pure life." The director of the Massachusetts ACLU claimed that the funding here amounted to federal underwriting of "religious indoctrination" in violation of the Establishment Clause. In its full complaint, the ACLU says that the three-hour multi-media presentation featured by the Silver Ring Thing is "permeated with religion", and that its 12-step follow-up program is also "highly religious". Further information on the lawsuit can be found in a report in today's Medical News Today.

Religious Hatred Bill Proposed Again In Britain

In Great Britain today, the Queen's Speech to Parliament (full text) which sets out the Labour Government's legislative program included the Incitement to Religious Hatred Bill. The proposed legislation would prohibit stirring up hatred against individuals because of their religion. According to a report in this morning's Scotsman, this is the third time the government has attempted to obtain this type of legislation. Previous attempts have foundered on free speech concerns. The bill is seen as particularly protecting Britain's Muslim population. Jews and Sikhs are already protected under special racial hatred laws.

7th Circuit Seeks Clarification on Prison's Exclusion of Religious Faction

The US Seventh Circuit Court of Appeals yesterday sent back to the district court for further proceedings a claim by prisoners that their religious rights were being violated when Indiana prison officials excluded a faction of the Moorish Science Temple of America from entering the prison to conduct services. The prison's superintendent had excluded the group "until such time as your problems have been resolved to my satisfaction and that of [persons in the parent organization]".

In Easley-El v. Ridley-Turner the 7th Circuit said: "Plaintiffs and their chosen spiritual guides are entitled to know what they must demonstrate before the prison will permit services to be held, and the district court then must determine whether the prison's conditions are valid." The record was unclear as to whether prison officials were taking sides in a theological dispute within the religious organization, or were concerned with legitimate issues about the conduct of the religious organization or the number of inmates interested in it.

The Moorish Science Temple of America teaches that all Blacks are descendants of the Moors and advocates that African-Americans return to Islam.

School Board Challengers Want Intelligent Design in Humanities, Not Biology

The New York Times reports on a primary election for school board today in Dover, Pennsylvania which focuses on the teaching of "intelligent design" as an alternative to the theory of evolution. Last fall the Dover school board approved a policy calling for reading to biology students a disclaimer stating that the theory of evolution "is not a fact" and urging students "to keep an open mind". The statement also calls students' attention to the book, Of Pandas and People. Students may leave class when the required disclaimer is read.

A slate of 7 candidates is opposing the current school board that adopted this policy. The primary winners are likely to run unopposed in the fall. The challengers are not proposing that intelligent design be removed from the schools. Instead they are calling for it to be taught in humanities class as a religious concept, instead of in biology. This might in fact lead to intelligent design being given more attention than currently. However, the current board insists that intelligent design be taught in the same course that teaches evolution.

Al Qaeda: Sunni Doctrine Precludes Participation in Iraq Constitution-Drafting

According to a Reuters story carried in today's Khaleej Times, Iraq's Al-Qaeda issued a statement yesterday calling on Sunnni Muslims to reject US proposals for them to participate in drafting Iraq's new constitution. The statement said: "Would anyone draft the constitution other than those who do not believe in God’s book.... Our Sunni faith stipulates that the sword and bullets be the only dialogue between us and worshippers of the cross."

Partnership Between Public and Jesuit Colleges Raises Questions

The Las Vegas Business Press reported yesterday on an unusual arrangement between colleges that raises First Amendment questions. Community College of Southern Nevada, part of the state university system, entered a lengthy memorandum of understanding with Denver-based Regis University, a Jesuit college. Under the new arrangements, students can earn a 2-year associate's degree at CCSN and then complete their bachelor's degree through Regis which will teach in both CCSN and Regis classrooms. Students will be required to take at least 6 hours of religious studies to obtain their Regis degree. Some of these classes will be offered in CCSN classrooms.

Critics of the program suggest that this is in reality a sharing of facilities between a public and a religiously-sponsored university which poses establishment clause problems if below-market rent for use of CCSN classrooms effectively subsidizes Regis' program. Regis says it has 46 similar public-private partnerships throughout the country.

Israeli Cabinet Transfers Authority Over Complaints Against Rabbis

The complex relationships between religion and government in Israel have taken another labyrinthine turn. Israel's 1971 Jewish Religious Services Law gave administrative jurisdiction over municipal rabbis to the Religious Affairs Minister. In 2004, the Religious Affairs Ministry was dismantled and its duties were split between the Prime Minister's office, the Interior Ministry and the Ministry of Tourism. The Prime Minister's Office got the jurisdiction to submit complaints against municipal rabbis to administrative tribunals. Now the government is concerned about statements by some rabbis directed against the Prime Minister because of his Gaza withdrawal plan. To eliminate any potential conflict of interest in complaints filed against such rabbis, the Israeli Cabinet announced yesterday (see Par. 4) that it was transferring to the Justice Minister the authority to submit these complaints to administrative tribunals. This decision will be submitted to the Knesset for approval.

In another action yesterday (see Par. 3), the Israeli Cabinet transfer the issue of conversions that are not Jewish conversions from the Prime Minister's Office to the Justice Minister.

Promise Keepers Use of Razorback Stadium Opposed

Controversy is brewing at the University of Arkansas campus in Fayetteville over a planned rally at the University's Razorback Stadium by the Promise Keepers. The Northwest Arkansas Times reports today that the planned June 10-11 event is being opposed by a coalition made up of NOW, the Washington County Green Party and the OMNI Center for Peace, Justice and Ecology. A spokesman said: "They’re calling on all people to be disciples of Jesus. If they were in their church, we wouldn’t have any problem with that. But they are on a public athletic field, and we think that this is inappropriate for the University of Arkansas."

The Promise Keepers' views of women, as well as its Christian message, are the focus of those who oppose the use of University facilities by the group. They object that the rally will send the wrong message from a university dedicated to diversity.

New Church-State Research on SSRN

New scholarship recently posted on SSRN includes:

Michigan State Professor Frank S. Ravitch's new article, Religious Objects as Legal Subjects, which will appear in Vol. 40 of Wake Forest Law Review.

University of St. Thomas Professor Gregory C. Sisk's new article, How Traditional and Minority Religions Fare in the Courts: Empirical Evidence From Religious Liberty Cases , which will appear in a forthcoming issue of the University of Colorado Law Review.

Analysis: The Lambeth Case on "In God We Trust"

As I noted in yesterday's posting, the Fourth Circuit in the Lambeth case has rejected an Establishment Clause challenge to the inscription “In God We Trust” on the a building housing county courts and offices in Lexington, NC. The court’s approach was fairly standard: it applied the 3-prong test of Lemon v. Kurtzman. However, the case demonstrates how little it now takes to satisfy the first prong of that test, that there be a “secular purpose” behind the statute.

The Court emphasized that the secular purpose need not be the predominant purpose. All that is needed is “a” legitimate secular purpose. It said: “the demonstration of such a legitimate secular purpose is "a fairly low hurdle."…. Indeed, we will deem the first prong of the Lemon test to be contravened "only if [the action] is ‘entirely motivated by a purpose to advance religion.’" …. A legitimate secular purpose is thus sufficient to pass muster… unless the alleged secular purpose is in fact pretextual….”

As press reports from the AP note this morning, in 2002 the cost of the inscription was paid for by donations from individuals and churches. The 4th Circuit’s opinion itself noted: “The Complaint alleges that Board members, and members of the public as well, "emphasized" at the Board meeting the religious nature of the phrase "In God We Trust"…. [O]ne Board member observed that voting against the installation of the display would be perceived by the public as a vote against God. [T]he Complaint also alleges that "the fact that these words are also the national motto was mentioned but not emphasized at the meeting at which defendant authorized the display."”

The 4th Circuit may have correctly summarized the current state of the law, but if that is so, is there anything left to the “secular purpose” requirement of Lemon?

Chicago Prof Warns of US Trend In Religious Thought

Today's New York Times Book Review section carries an essay titled Church Meets State by University of Chicago Professor Mark Lilla . In it, he discusses the understanding of religious psychology held by the Founding Fathers of the United States . He says: "The British and Americans made two wagers. The first was that religious sects, if they were guaranteed liberty, would grow attached to liberal democracy and obey its norms. The second was that entering the public square would liberalize them doctrinally, that they would become less credulous and dogmatic, more sober and rational. " He goes on to argue that today, religion in the United States, and especially Protestantism, is moving in the opposite direction.

He concludes: "The fascination with the ''end times,'' the belief in personal (and self-serving) miracles, the ignorance of basic science and history, the demonization of popular culture, the censoring of textbooks, the separatist instincts of the home-schooling movement -- all these developments are far more worrying in the long term than the loss of a few Congressional seats. No one can know how long this dumbing-down of American religion will persist. But so long as it does, citizens should probably be more vigilant about policing the public square, not less so."

Arguments Scheduled in Florida State Constitution School Choice Challenge

Now that the US Supreme court has settled the question of the constitutionality of school vouchers under the federal Constitution, the battle has moved to state courts. The Tallahassee Democrat carries an op-ed piece this morning discussing a case to be heard June 9 by the Florida Supreme Court. With Opportunity Scholarships, parents of children in failing public schools can transfer their children to private schools, including religious ones. The case uses the Florida state Constitution to challenge Florida's Opportunity Scholarship program.

Like many other states, Florida's Constitution contains a so-called "Blaine Amendment" providing that "No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution." The op-ed points out that other Florida programs will also be impacted by any decision, including a new pre-kindergarten program that will offer religious as well as non-religious options.

4th Circuit Upholds "In God We Trust" On County Building

Two and a half years ago, the Commissioners of Davidson County, North Carolina decided to inscribe “In God We Trust” on the façade of the Government Center in Lexington, NC. Yesterday, in Lambeth v. Board of Comm’rs. of Davidson County, the US Fourth Circuit Court of Appeals rejected an Establishment Clause challenge to that decision. It held that the Commissioners’ action passed muster under the Lemon test.

In the Court’s view, the County Commissioners had at least some secular purpose. “In God We Trust” is the US national motto (36 USC Sec. 302). Even though there were also religious motivations, the secular ones were not just a pretext. Secondly, the 4th Circuit decided that given the long-standing patriotic uses of the motto, a reasonable observer would not view this as an endorsement of religion. Finally, the court found that this did not excessively entangle government with religion. It indicated that the concern about political divisiveness along religious lines under this strand of Lemon is limited to cases involving financial subsidies to parochial schools.

Mother Sues Nashville Schools Claiming Religious Recruitment

The Nashville Tennessean reports today on a lawsuit brought by several plaintiffs, including a parent of a Nashville, Tennessee high school student. The suit against the Nashville Metro school system claims that the 3000-member Bethel World Outreach Center, with the consent of school administrators, is using the schools to actively solicit teenagers into BWOC's youth ministry. The suit alleges that a teacher recruited the plaintiff's daughter to the church. Later a church staff member told the teen that her faith was strong enough that she no longer needed to take her anti-depressive medication. This led to a suicide attempt by the teenager. A church spokesman expressed concern but defended the youth program.

Sunday: Intl. Conscientious Objector Day

This Sunday, May 15, is International Conscientious Objectors Day. According to the War Reisisters' International website, this year's focus is on the plight of conscientious objectors in Greece. A report on the situation in Greece prepared by WRI for the United Nations Human Rights Committee is available online.

Mauritanian Police Raid Mosques Seeking Terrorists

According to a report today from Reuters, police in Nouakchott, the capital of the west African country of Mauritania, have searched at least ten mosques. They seized religious texts, prayer recordings made by imams, and in one case have arrested the resident muezzin. Since last month, police have arrested a number of Islamic activists and opposition leaders, charging that they are cooperating with an Algerian-based group allied with Al Qaeda. Mauritania is officially an Islamic republic, but it bans any political party based solely on religion.

Pressure on Pakistan To Repeal Blasphemy Law

Ecumenical News International reported yesterday that Catholic and human rights groups were renewing their campaign to get Pakistan to repeal its blasphemy law. A recent study of blasphemy cases reported over the last 17 years shows that 90 out of 642 were brought against Pakistan's small Christian community. Many blasphemy convictions have been overturned on appeal, but 20 defendants (including 6 Christians) have been murdered during their trials.

Ga. Proposes Parental Consent for Extra-Curricular Activities

The Georgia Board of Education yesterday proposed for public comment a rule that would require schools to furnish parents a list each year of all extra-curricular student clubs with their faculty advisors, purposes, activities, dues and national affiliations. A second, and more controversial, portion of the proposed rule would require schools to get parental permission for a student to join an after-school club. While this may impact after-school religious organizations, according to a report in the Southern Voice Blog today it has primarily been criticized as preventing closeted gay students from joining gay rights or gay support groups at their schools. The full text of the proposal is available online.

Constitutionality of Charitable Choice-- Part 2

Findlaw today has posted Part 2 (see prior post for Part 1) of an article by Vikram Amar and Alan Brownstein on the constitutionality of the "Charitable Choice" bill (H.R. 27) pending in Congress. Today they focus on the provision in the bill that would permit religious organizations to discriminate on the basis of creed in hiring employees to carry out government-funded social services. They conclude that this is impermissible under the Supreme Court's 1987 decision in Corporation of Presiding Bishop v. Amos. They argue that Amos permitted religious organizations to hire on the basis of religious belief only in order to protect their religious missions; but government funding under H.R. 27 may not fund the religious mission of an organization.

Profile of a First Amendment Defender

Yesterday's Tampa Weekly Planet carried an extensive profile of Brent Walker, Executive Director of the Baptist Joint Committee on Public Affairs. Walker, a political moderate, is a strong supporter of church-state separation. Says Walker, "The best thing government can do for religious liberty is to simply leave it alone. If any of us are going to be free, then all of us have to be free. This is not a pick-and-choose proposition."

Inter-Religious Tension Continues In Sri Lanka

The debate between Christian groups on the one hand and Buddhist and Hindu groups on the other over religious freedom and proselytization continues in Sri Lanka. According to a May 13 report in Christian Today, one of two bills that would limit Christian conversionary efforts was presented last week for a second reading in Parliament and then referred to a Standing Committee, even though part of the bill has been held unconstitutional by the Sri Lanka Supreme Court. The bill would prohibit conversions obtained by force or fraud and would require those who convert to notify local authorities.

Also it is reported today by ADNKronos International that a Special Rapporteur for the United Nations Human Rights Commission has said that Sri Lanka is not punishing acts of anti-religious violence, such as the burning of churches. She worries that this could lead to religious intolerance. She has also heard charges that faith-based organizations bringing aid to last year's Tsunami victims have attempted to play on their vulnerabilities.

Sweden's High Court to Review Pastor's Conviction for Anti-Gay Sermon

Last year, Pentacostal pastor Ake Green was sentenced by a Swedish court to 30 days in jail for preaching a sermon calling homosexuals "a deep cancer tumor on all of society". The court held that the sermon violated Sweden's 2003 hate crimes law. In Febrary 2005, an appeals court reversed the conviction. According to an AP report in today's Washington Post, Sweden's Supreme Court has announced it will now accept the prosecutor's request that it review the case.

Egypt's PM Excludes Possibility of Religious Political Party

Earlier this week, the Egyptian parliament approved constitutional changes that will permit some additional candidates to run for president in future elections. However, according to a report today from Middle East Online, Egypt's prime minister has excluded the possibility that the opposition Muslim Brotherhood could form a party and run a candidate. He said: "They are not a party and they will never be a party because our constitution says that a party cannot be based on religion."

Novel Anti-SLAPP Motion In Episcopal Church Dispute

The Long Beach, California Press Telegram reports today on a novel maneuver in a law suit between the Episcopal Diocese of Los Angeles and three local churches. In August, the three churches broke away from the Episcopal Church USA in protest over the ordination of an openly gay bishop and the blessing of same-sex unions. They placed themselves under the jurisdiction of an Anglican Bishiop in Uganda. In response, the Los Angeles diocese sued to get the property, hymnals and financial records of the three churches. It also asked for punitive damages.

Now comes the novel twist. The three churches have filed an anti-SLAPP motion under California Code of Civil Procedure Sec. 425.16. SLAPPs (Strategic Lawsuits Against Public Participation) were historically suits by businesses or government officials to silence critics. They were brought against individuals who spoke out on public issues, claiming that in speaking out, the individual became liable for defamation, conspiracy or interference with economic advantage. To prevent these, California and other states have provided that "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike..."

A hearing on the anti-SLAPP motion is scheduled for June 9.

US Commn. On Intl. Religious Freedom Issues 2005 Report

Yesterday the U.S. Commission on International Religious Freedom announced its 2005 recommendations on countries whose governments violate or tolerate serious interference with religious freedom. Those nations named as "countries of particular concern"-- the most egregious violators-- are ten who remain from last year: Burma, North Korea, Eritrea, Iran, Pakistan, People's Republic of China, Saudi Arabia, Sudan, Turkmenistan, and Vietnam. Added to the list this year was Uzbekistan because of its restrictive law on religion and its control over the way in which Islam can be practiced. India was removed from the list this year. A number of other countries were placed on a "watch list". These are Belarus, Cuba, Egypt, Indonesia, Nigeria and Bangladesh. A third level of concern-- countries being monitored-- was expressed as to Laos and Georgia (both moved from last year's watch list), and as to Afghanistan, India, Iraq and Russia.

The full text of the Commission's Annual Report, containing policy recommendations, is available online. The International Religious Freedom Act requires the report to be issued each year.

Update on Air Force Academy Religious Discrimination Probe

In a prior posting, I reported on the religious tolerance class being required for all Air Force Academy personnel after complaints by non-Chiristian cadets. Today the New York Times reports that the film being used for the class, titled "Respecting the Spiritual Values of All People", was originally 90 minutees in length, but was cut to 50 minutes. The article claims that chief of chaplains, Maj. Gen. Charles C. Baldwin, objected to some of the original footage. The Times reports: "General Baldwin said he asked that the Air Force cut out segments in the program on non-Christian religions like Buddhism, Judaism and Native American spirituality, as well as a clip from "Schindler's List," the 1993 movie on the Holocaust. The R.S.V.P. program was cut from 90 minutes to 50. Captain Morton [a Lutheran Academy chaplain] said that instead of educating about other religions, it had been reworked to emphasize a more neutral message: that cadets should respect one another's differences."

Another officer, however, told the Times reporter that the Academy is developing a second phase of the program that will educate cadets about "world religions".

Now It's Tajikistan....

Now Tajikistan joins many of the other former Soviet republics in closing churches. Today, Forum 18 reports that a Korean-led Protestant church in the town of Khujand has been closed down temporarily, partly under pressure from local Muslims. The church had previoulsy been accused of violating Tajikistan's law on religious organizations by teaching religious fanaticism. Tajik law calls for registration of religious organizations, but registration is not compulsory. The chairman of the country's religious affairs committee also complained about the vast amount of uncontrolled Muslim and non-Muslim religous books entering Tajikistan.

Belarus Holding Off Further Action Against Unregistered Religious Groups

Forum 18 reports today that Belarus has held off on taking action against the New Life Church and the Minsk Society for Krishna Consciousness (MSKC) after previously issuing warnings to them that they would be liquidated. Their re-registration has been denied because they do not have government approval to use the buildings in which they are meeting to worship. MSKC is not holding worship services out of fear of the large fines that would be imposed if they did. Baptist groups have also been denied re-registration when they refused to accept limits on the geographical region in which they could operate. This situation echos similar issues in other former Soviet Republics described in prior postings on Kazakhstan, Turkmenistan , and Azerbaijan

No Delay Permitted For Removal of Anti-Evolution Stickers

Last week (May 5), according to an AP Report, the 11th Circuit US Court of Appeals denied a request by the Cobb County, Georgia school board to permit it to delay complying with an order to remove evolution disclaimer stickers from school books. The school board requested the delay while an appeal was pending. The offending stickers, which the district court had ordered removed, read: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully, and critically considered."

Court Battle to Change Name to "Jesus Christ" Continues

The South African Mail and Guardian today reports on a legal battle over a name change in Washington, DC. Fifteen years ago, Peter Robert Phillips, Jr. changed his name on his passport, drivers' license and social security card to "Jesus Christ". In 2003, West Virginia refused to place this name on a deed to property without a formal name change. So Christ nee Phillips petitioned the District of Columbia Superior Court for a legal change of name. The trial court denied his request on the ground that use of this name is blasphemy and will cause a violent reaction. On April 7, 2005, the DC Court of Appeals reversed on the ground that the petitioner failed to publish notice of his proposed name change in a newspaper of general circulation as required by D.C. Code Sec. 16-2503, and that no transcript of the hearing in the trial court was filed with the appeal. The court remanded the case so it can proceed in accordance with applicable rules. Phillips attorney, who reports that a new hearing is expected within the next two months, says that his client is a devout Christian who is expressing respect and love for his religion through the name change.

New Law Review Articles

Here are some of the most recent First Amendment Religion Clause articles published in law reviews, courtesy of SmartCILP:

Dokupil, Susanna, Thou Shalt Not Bear False Witness: "Sham" Secular Purposes in Ten Commandments Displays, 28 Harv. J.L. & Pub. Pol'y 609-650 (2005).

Garry, Patrick M., The Institutional Side of Religious Liberty: A New Model of the Establishment Clause, 2004 Utah L. Rev. 1155-1189.

Gedicks, Frederick Mark and Roger Hendrix, Religious Experience In the Age of Digital Reproduction, 79 St. John's L. Rev. 127-160 (2005).

Goldstein, Jared A., Is There A "Religious Question" Doctrine? Judicial Authority To Examine Religious Practices and Beliefs, 54 Cath. U. L. Rev. 497-551 (2005).

Malaysia Releases Arrested Christians; Demands Bible Labeling

Christian Today reports that Malaysia has released two American Protestants who had been arrested on April 25 for proselytizing (see prior posting). Sentenced to 14 days in jail, they were released after 10 days. All charges against them were withdrawn. Islam is the official religion in Malaysia and it is illegal to attempt to convert Muslims. The Prime Minister recently announced that Bibles published in the Malay language must display a prominent warning, "Not For Muslims".

11th Circuit Denies Native American Prisoner's Religion Claims

In Brunskill v. Boyd , decided yesterday, the US 11th Circuit Court of Appeals rejected free exercise, establishment clause, equal protection and RLUIPA claims by a Native American who practices the Tobacco Indian religion. The inmate had charged that prison rules requiring him to cut his hair were unconstitutional, as were those denying him access to tobacco, sage, cedar, sweetgrass, beads, leather, thread, needles, and feathers used for religious purposes.

2 Publications By Political Scientists On Religion and Public Policy

A new book edited by two political scientists presents case studies of faith-based programs funded by the federal government. The book is David K. Ryden & Jeffrey Polet, Sanctioning Religion?: Politics, Law, and Faith-Based Public Services , from Lynne Reinner Publishers. It is described as investigating "the potential—as well as the perils—of mixing religion and politics in the United States." The book's Introduction is available online.

Another group of political scientists have published a paper analyzing the role that religion plays in voting patterns of members of Congress. In the May 10 issue of Roll Call (subscription required), an article describes their paper, The Confessional Congress: Religion and Legislative Behavior. The paper analyzes religious faith and voting behavior of House members in the 105th Congress (1997-98). It concludes "even when party membership, district religious characteristics, and important political variables are controlled, religious affiliation and theological perspective still have a direct impact on members' voting." [Thanks to Steven H. Sholk for this information].