Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Tuesday, March 06, 2007
Indian Christians Urge Amendment of UN Universal Declaration of Human Rights
California Supreme Court Upholds Conduit Financing For Religious Schools
In California Statewide Communities Development Authority v. All Persons Interested In the Matter of the Validity of a Purchase Agreement, (CA Sup. Ct., March 5, 2007), a majority of the court held that the arrangement did not violate either California's Constitution (Art. XVI, Sec. 5) that bars state support for any school controlled by a sectarian denomination; nor does it violate the First Amendment.
The majority held that financing would be valid if it met 4 tests: it must serve the public interest and provide no more than an incidental benefit to religion; it must be equally available to secular and sectarian institutions; the program must prohibit use of bond proceeds for "religious projects"; and the program must not impose any financial burden on the government. The court went on to hold that the first of these tests would be met so long as the school provides a broad curriculum in secular subjects, and remanded the case to the trial court for it to determine whether the schools offer a sufficiently broad variety of secular courses.
The dissent argued that California's Constitution prohibits the state from acting as a fundraiser for schools. The Associated Press yesterday reported on the court's decision. [Thanks to How Appealing for my updated link to the opinion.]
Parliamentary Committee On Religious Freedom and Britain's Sexual Orientation Regulations
It says that in order to protect freedom of conscience, religion and belief, exemptions should assure that no one will be required to perform same-sex marriages, admit homosexuals to their religious organizations, or allow them to join in their activities or use their premises if this would violate their religious belief. It recommends that the new Regulations for Great Britain contain a narrow definition of harassment on the basis of sexual orientation in order to avoid incompatibility with freedom of speech religion and belief.
The report also recommended that there be no exemption for government-supported faith schools from the regulations that prohibit discrimination on the basis of sexual orientation. It says:
Regulations prohibiting sexual orientation discrimination should clearly apply to the curriculum, so that homosexual pupils are not subjected to teaching, as part of the religious education or other curriculum, that their sexual orientation is sinful or morally wrong. [This] would not prevent pupils from being taught as part of their religious education the fact that certain religions view homosexuality as sinful. In our view there is an important difference between this factual information being imparted in a descriptive way as part of a wide-ranging syllabus about different religions, and a curriculum which teaches a particular religion’s doctrinal beliefs as if they were objectively true. The latter is likely to lead to unjustifiable discrimination against homosexual pupils.LifeSiteNews yesterday reports on reactions to the Joint Committee's report.
Indiana Hate Crimes Bill Dies In Legislature
The American Family Association of Indiana pushed a grassroots campaign that resulted in many e-mails to legislators from those opposed to the law. Then Rep. Jackie Walorski proposed an amendment that would have made the hate crimes law apply to a fetus. Democrats who control the House of Representatives decided to shelve the legislation in order to avoid a divisive debate on abortion. These developments were reported by WDC Media and by 365Gay.com.
Monday, March 05, 2007
US Supreme Court Dismisses School T-Shirt Case As Moot In Complex Procedural Move
Today the U.S. Supreme Court granted the writ of certiorari in the preliminary injunction proceedings, but without further briefing or argument vacated the lower court judgment and remanded the case to the 9th Circuit with instructions to dismiss Tyler Harper's appeal as moot. The Supreme Court also rejected the motion by Tyler Harper’s sister, Kelsie Harper, to intervene at the Supreme Court level in order to prevent the case from being moot. Her claims, however, are still pending on appeal in the lower courts.
En Banc Rehearing Sought In 7th Circuit In Campus Preaching Case
Recent Prisoner Free Exercise Cases
In Fisher v. Virginia Department of Corrections, 2007 U.S. Dist. LEXIS 13063 (WD VA, Feb. 23, 2007), a Virginia federal Magistrate Judge recommended that certain of defendants' summary judgment motions be denied and that a prisoner be permitted to proceed with various of his First and Fourteenth Amendment and RLUIPA claims asserting that prison officials would not allow him to possess a "Thor's Hammer" pendant, central to his practice of Asatru, even though they allowed inmates of other religions to possess religious medallions. -- UPDATE: On March 15, the court adopted the Magistrate's report and recommendation, 2007 U.S. Dist. LEXIS 18270.
In Rose v. Snyder, 2007 U.S. Dist. LEXIS 13342 (SD IL, Feb. 27, 2007), an Illinois federal district judge approved the recommendations of Magistrate Judge denying the claims of a Rastafarian prisoner that he should be permitted to wear dreadlocks in violation of prison grooming rules.
In Abdullah v. Frank, 2007 U.S. Dist. LEXIS 13215 (ED WI, Feb. 26, 2007), a Wisconsin federal district court denied a motion for summary judgment by a Sunni Muslim prisoner who claimed that his rights under RLUIPA and the free exercise clause were infringed when he was denied the right to possess a turban/Kifiyyah, a Thawb and a silver ring in order to carry out the practices of his religion. The court found that questions of fact remained as to whether plaintiff's religious practices had been substantially burdened and whether prison officials acted in an intentionally discriminatory manner.
In Judd v. Adams, 2007 U.S. Dist. LEXIS 14502 (ED CA, Feb. 20, 2007), involved a claim by a prisoner who was an adherent of the Asatru/Odinist faith that he had difficulties in getting permission to keep a Thor's hammer medallion and alter cloth. A California federal Magistrate Judge dismissed the claims, but gave the prisoner the right to file amended complaints as to his First Amendment and RLUIPA claims.
In State of Ohio v. Whitaker, (OH Ct. App., march 2, 2007), an Ohio appellate court vacated the imposition of a 12-month prison sentence on Troy Whitaker, an adherent of a Native American religion, after he violated his community control by being unsuccessfully discharged from an alcohol residential treatment facility. Whhitaker had refused to cut his hair in violation of the program's grooming requirements. The court found that the state had not shown that forcing Whitaker to cut his hair is the least restrictive means to enforce any compelling interest the state has. It also held that Whitaker did not have to prove his Native American heritage to assert his claim.
Settlement Reached In Religious Expression Suit Against NC High School
Sunday, March 04, 2007
Many New Scholarly Articles Of Interest
Michael J. Gerhardt, Why the Catholic Majority on the Supreme Court May Be Unconstitutional, University of St. Thomas Law Journal, Vol. 4, 2007 .
Kinari Patel, The Constitutional Paradox Posed by Permitting Polygamy in India, (February 24, 2007).
Perry Dane, Separation Anxiety: A Review Essay on Noah Feldman's "Divided By God", (Journal of Law and Religion, Forthcoming).
Ryan Benjamin Witte, I'm the Mommy, That's Why: A Minor's Right to Free Exercise when it Conflicts With a Parent's Hybrid Right Under Smith.
Nathan B. Oman, "United States v. Reynolds" , ENCYCLOPEDIA OF MORMON HISTORY, Paul Reeve & Ardis Parshall, eds. (ABC-Clio, Forthcoming).
From Bepress:
Gregory A. Kalscheur , S.J., Catholics in Public Life: Judges, Legislators, and Voters, (February 26, 2007).
Cyra Akila Choudhury, (Mis)Appropriated Liberty: Identity, Gender Justice, and Muslim Personal Law Reform in India, (2007).
From SmartCILP:
Vaughn E. James, The African-American Church, Political Activity, and Tax Exemption, 37 Seton Hall Law Review 371-412 (2007).
Symposium: End of Life Decision Making: The Right to Die? Articles by Steven H. Aden, Kathleen M. Boozang, Lois Shepherd, Wendy E. Parmet, Edward James Furton, Mark C. Rahdert, Corrine Parver, Joseph B. Straton, M.D. and Max Lapertosa. 15 Temple Political & Civil Rights Law Review 323-500 (2006).
Symposium: Religion, Division, and the Constitution. Introduction by Richard W. Garnett; articles by Lawrence B. Solum, Frederick Mark Gedicks, Stephen M. Feldman, David E. Campbell and Paul Horwitz. 15 William & Mary Bill of Rights Journal 1-146 (2006).
Symposium: Religion in the Public Schools. Articles by Steven G. Gey, Laura S. Underkuffler, Arnold H. Loewy, Jay D. Wexler, Richard B. Katskee, Luke Meier and Anthony R. Picarello, Jr. 5 First Amendment Law Review 1-200 (2006).
Temple Replica Found To Violate Zoning Code
Michigan Limit On Prisoner Suits Held Unconstitutional
International Body Upholds Soccer Hijab Ban
Jordan Journalists Oppose Proposed Law Against Villifying Religion
Saudi Virtue Commission Offical Defends Its Work
Tuwaijri rejected the allegation that the Commission denies women their rights. He said that the Commission "strongly intervenes when men try to harass [women] or tempts them to gratify their undignified impulses. The commission gives utmost importance to protect women’s rights and freedom that are accorded to them by the Shariah." He added, however that there are some things, which "are mistakenly claimed to be part of women’s freedom such as the immodest exhibition of their body and some other activities considered beyond the permissible limits of moral regulations fixed by Saudi society and the Shariah." He said that these "are in fact violations of the rights of other members of society who want to live in a morally chaste and unpolluted environment."
Saturday, March 03, 2007
Suspended Christian Group Sues Georgia College
Proposal Would Amend Missouri Constitution to Permit School Prayer
Last Wednesday, the House Special Committee on General Laws heard testimony on the proposal. Saturday's issue of The Maneater reports that at the hearings, Rep. Beth Low argued that the amendment is unnecessary and would not accomplish its goals.
British Magistrate Denied Right To Opt Out Of Gay Adoption Cases
California Christian School Loses RLUIPA Claim
Friday, March 02, 2007
Anti-Jewish Remark Forces Candidate Out Of Mayoral Race
Azeri Journalists On Trial For Insulting Muhammad
UPDATE: The International Herald Tribune reported on Monday that the trial has been postponed as the court ordered a change of venue to the district where the newspaper offices are located instead of where the defendants live.
Kuwait Will Drop Religious Freedom From High School Curriculum
Registration Difficult To Obtan Under Serbia's Religion Law
Controversial Chaplain Finally Discharged
Mennonnites Leave Missouri Over Drivers' Licence Requirement
Agency Finds Discrimination Against Catholic Priest At NIH
Indonesia Moves Toward Sharia
Thursday, March 01, 2007
San Diego Diocese Files For Bankruptcy Reorganization
City Land Swap Challenged As Unconstitutional
Pressure For Evolution, Creationism In Curriculum Continues
Meanwhile, the Associated Press on Tuesday reported on a fascinating resolution aimed at placing the Tennessee state education commissioner on the spot. State Sen. Raymond Finney has introduced SR 17 in the Tennessee state Senate. The resolution is worth being quoted at length:
Bill sponsor, Sen. Finney, a retired physician, lives some 60 miles from the town of Dayton, TN where the famous 1925 Tennessee Scopes Monkey Trial was held.BE IT RESOLVED ... that the commissioner of the department of education ... is hereby respectfully requested by this body to respond to the following questions:
(1) Is the Universe and all that is within it, including human beings, created through purposeful, intelligent design by a Supreme Being, that is a Creator?
Understand that this question does not ask that the Creator be given a name. To name the Creator is a matter of faith. The question simply asks whether the Universe has been created or has merely happened by random, unplanned, and purposeless occurrences.
Further understand that this question asks that the latest advances in multiple scientific disciplines –such as physics, astronomy, molecular biology, DNA studies, physiology, paleontology, mathematics, and statistics – be considered, rather than relying solely on descriptive and hypothetical suppositions.
If the answer to Question 1 is “Yes,” please answer Question 2:
(2) Since the Universe, including human beings, is created by a Supreme Being (a Creator), why is creationism not taught in Tennessee public schools?If the answer to Question 1 is "This question cannot be proved or disproved," please answer Question 3:
(3) Since it cannot be determined whether the Universe, including human beings, is created by a Supreme Being (a Creator), why is creationism not taught as an alternative concept, explanation, or theory, along with the theory of evolution in Tennessee public schools?
If the answer to Question 1 is "No" please accept the General Assembly’s admiration for being able to decide conclusively a question that has long perplexed and occupied the attention of scientists, philosophers, theologians, educators, and others....
Montana Senate Keeps Child Health Contraceptive Payments Ban
Iran Universities Continue Discrimination Against Baha'is
Worcester City Council Backs Invocations
Wednesday, February 28, 2007
Religious Objection-- Among Others-- Raised To Ohio's New Smoking Ban
SCOTUS Hears Arguments Today On Taxpayer Standing To Challenge Faith-Based Inititative
UPDATE: The Los Angeles Times has an account of today's oral arguments in the case.
UPDATE: The full transcript of today's oral arguments in the Hein case is now available online.
UPDATE: Dahlia Lithwick at Slate has a particularly interesting account of the oral argument.
LA Trial of Temple 420 Leader On Marijuana Charges Starts Friday
Opinion Rejects Free Exercise Challenge To Teaching Children Respect For Gay Couples
Property Ownership In Michigan Church Split Is Before State Court
Judge Excludes Religious Appeal In Closing Arguments
Tuesday, February 27, 2007
Serbia Guilty of Not Preventing Genocide of Muslims, But Not Guilty of Comitting Genocide
Cert. Denied In Challenge To Polygamy Laws
French Supreme Court Finds Humorist's Remarks Were Anti-Semitic
Quebec Soccer League Prohibits Wearing Hijab In Games
Monday, February 26, 2007
New Religious Liberty & Church-State Articles
Camil Ungureanu, The Relation Between Democracy and Religion: Towards a European Discursive “Model”?, (December 2006).
Thomas Charles Berg, Can Religious Liberty be Protected as Equality?, Texas Law Review, Vol. 85, No. 5, April 2007
From SmartCILP:
Chai R. Feldblum, Moral Conflict and Liberty: Gay Rights and Religion, 71 Brooklyn Law Review 61-123 (2006).
Patrick M. Garry, A Congressional Attempt to Alleviate the Uncertainty of the Court's Establishment Clause Jurisprudence: The Public Expression of Religion Act, 37 Cumberland Law Review 1-23 (2006-2007).
Andrew Koppelman, You Can't Hurry Love: Why Antidiscrimination Protections for Gay People Should Have Religious Exemptions, 71 Brooklyn Law Review (2006).
Winnifred Fallers Sullivan, John Randolph Tucker Lecture: Comparing Religions, Legally, 63 Washington & Lee Law Review 913-928 (2006).
Steven K. Green, "Bad History": The Lure of History in Establishment Clause Adjudication, 81 Notre Dame L.aw Review, 1717-1754 (2006).
Marci A. Hamilton & Rachel Steamer, The Religious Origins of Disestablishment Principles, 81 Notre Dame Law Review 1755-1791 (2006).
Douglas Laycock, Regulatory Exemptions of Religious Behavior and the Original Understanding of the Establishment Clause, 81 Notre Dame Law Review 1793-1842 (2006).
NJ Rescue Mission Ordered To End Drug & Alcohol Treatment
Recent Prisoner Free Excercise Cases
In Henderson v. Frank, 2007 U.S. Dist. LEXIS 11064 (WD WI, Feb. 15, 2007), a Wisconsin the court federal district court rejected an Establishment Clause claim brought by a Taoist prisoner. held that a policy that creates seven "umbrella religions" under which all other religions fall, is merely a system to manage the many faith traditions and does not give any particular benefit to some religions that is denied to others. It also held that the prison's refusal to purchase Taosit religious texts for the prisoner failed to raise a Free Exercise claim.
Sunday, February 25, 2007
Maine Bill Would Separate Clergy's Role In Marriages From Legal Recognition
Challenge To Sale of Boston Land To Mosque Dismissed As Untimely
Union Has Independent Accommodation Requirement Under Title VII
Religious Defense In Charges Of Possessing Hawk Feathers
Defiant Pastor Back In Georgia Supreme Court
Jewish Groups Testify In Favor Of Maryland Divorce Bill
Teachers Pray For Students' Success, and Create Controversy
Friday, February 23, 2007
High Schooler's Religious Objections End Teacher's Creative Essay Assignments
Spanish Court Upholds Right Of Chruch School To Fire Teacher
Missouri Courthouse Bible Group Changes Location
California Suupreme Court Refuses To Hear Mt. Soledad Appeal
Egyptian Blogger Jailed For Insulting Islam
Russian Student's Challenge To Teaching of Evolution Dismissed
Muslim Police Officer's Discrimination Claim Dismissed On Procedural Grounds
Thursday, February 22, 2007
Suit Challenges Jacksonville's Permit Requirement To Feed Homeless
British School Girl Loses Battle To Wear Niqab
Probationer With Religious Objections Permitted To Give Swab DNA Sample
Indiana Church's Zoning Challenge Rejected
Schools' Barring of Student Religious Literature Found Unconstituitonal
UPDATE: In a later proceeding in the same case at 2009 U.S. Dist. LEXIS 60179 (Feb. 27, 2009), the court denied qualified immunity to the school principal who stopped an elementary school student from passing out religious-themed pencils in the cafeteria and outside on school grounds during and after school hours.
Former Court Administrator Claims Religious Motives In Her Dismissal
Suit Filed Over School's Objection To Jesus Halloween Costume
However, school Principal Patricia Whitmire objected saying that the costume would violate the school's policy against advocating religion-- even though other students would dress as witches and warlocks. When the student appeared in the Jesus costume, Whitmire told him to remove the "crown of thorns" that was part of his costume and not identify himself as Jesus. The complaint in the case (full text) seeks a declaratory judgment that defendants action violated the student's free speech, free exercise of religion, due process and equal protection rights.
Kazakhstan Considering More Restictive Religion Law
Wednesday, February 21, 2007
Justice Department Announces New Religious Freedom Initiatives
The Attorney General also announced these initiatives in a speech before the Executive Committee of the Southern Baptist Convention. (Full text.) In the speech he referred to the events of 9-11, saying that:"Nothing defines us more as a Nation – and differentiates us more from the extremists who are our enemies – than our respect for religious freedom."
He also praised the leadership of President George W. Bush, saying: "Most Americans believe in God. And so they naturally understand and accept the limitations and imperfections that are a part of being human. Perhaps because of our frailties, most of us yearn for heroes, we are attracted to and inspired by leaders who perform extraordinary deeds or at least inspire others in worthy causes. I believe this is why many Americans share a natural curiosity—a fascination—about the President of the United States.... [T]here are very few individuals as strong in their faith as George W. Bush."
Yesterday's Tennessean reported on the Attorney General's speech. It quoted Hedy Weinberg, executive director of the Tennessee branch of the American Civil Liberties Union, who wondered why the announcement of the new initiatives was made to a meeting of a single religious group rather than to an interfaith gathering.
Cert. Denied In Staten Island Billboard Case
U.S. Religious Conservatives Oppose Ratification of Treaty On Gender Discrimination
Now, however, Rep. Chris Smith along with pro-life organizations have circulated their own letters opposing the treaty, arguing that it "will be distorted and used against provisions like parental involvement laws, the ban on barbaric partial-birth abortions and conscience protection for people of faith -- not to mention promoting taxpayer funding for abortion." Opponents are particularly concerned with Article 12 of the Convention that provides: "States Parties shall take all appropriate measures to eliminate discrimination against women in the field of health care in order to ensure, on a basis of equality of men and women, access to health care services, including those related to family planning."
Prisoners' Inter-Religious Dialogue Is Not Religious Practice
petitioner is not challenging the prison’s decision to deny atheists the opportunity to meet together to discuss their commonly held religious beliefs. Instead, petitioner alleges that he asked prison officials to authorize a group for inmates of differing religious and philosophical persuasions, including inmates with no religious preference at all, to meet together to discuss their differing ideas. Such an activity is more akin to a debate society meeting than to a group religious practice. Although petitioner might wish to share his atheist beliefs with others (just as a Christian inmate might wish to evangelize his fellow prisoners), prison officials do not violate inmates' free exercise rights when they refuse to permit gathering of inmates of different religious or philosophical persuasions for the purpose of facilitating inter-religious dialogue.However, the court did permit plaintiff to proceed with his claim that his rights under the First Amendment and RLUIPA were violated when prison officials refused to permit him to order literature about atheism.
New Jersey School Board Prohibits Religious Teaching In Wake of Class Recordings
British Muslim Peer Speaks Out Against Niqab
Tuesday, February 20, 2007
Cert. Denied In NY School Holiday Decorations Case
San Diego Diocese Considering Bankruptcy Filing
Ukraine Archives Takes Back Jewish Community's Torah Scrolls
Upcoming Conferences of Interest
On April 12-13, the West Virgina University College of Law and the American Constitution Society will sponsor a conference titled The Religion Clauses in the 21st Century.
Monday, February 19, 2007
Army Chaplain Discharged During Attempt To Move To Wicca
The Post reports: "Jim Ammerman, a retired Army colonel who is president and founder of the Chaplaincy of Full Gospel Churches, acknowledges that there is a longstanding agreement among endorsers not to summarily pull the papers of a chaplain who wants to make a valid switch. 'But if it's not a valid thing, all bets are off,' Ammerman says, adding that Wiccans 'run around naked in the woods' and 'draw blood with a dagger' in their ceremonies. 'You can't do that in the military. It's against good order and discipline.'" [Thanks to Prof. Steven Jamar via Religionlaw listserv for the lead.]
President's Day Brings Discussion of First President's Beliefs
By the way, Presidents Day -- placed on the third Monday in February by the Uniform Monday Holiday Act of 1968 that became effective in 1971 (5 USC 6103) -- is still called "Washington's Birthday" in the federal statute. However, as explained by one U.S. Embassy's website: "President Nixon issued a proclamation declaring the holiday as "Presidents' Day" in 1971. President Nixon erroneously believed that a Presidential proclamation on the matter carried the same weight as an Executive Order. Since that change in 1971, the common term has been 'Presidents' Day'."
Here is a Proclamation issued last week by President Bush which, opting for historical accuracy, proclaims February 22 (not today) as the 275th anniversary of George Washington's birth. (It does not mention today's statutory holiday.) Steering away from controversy, the Proclamation-- in describing Washington's accomplishments-- says nothing about Washington's religious faith or beliefs.
State Reps Circulate Memo On Supposed Jewish Origins Of Evolutionary Theory
Recent Prisoner Free Exercise Cases
In Howard v. Epps, 2007 U.S. Dist. LEXIS 9716 (ND MI, Feb. 9, 2007), a federal district judge accepted a federal magistrate judge's recommendations that a Rastafarian prisoner's free exercise and equal protection challenges to prison hair-length policies be dismissed.
In Ashanti v. California Department of Corrections, 2007 U.S. Dist. LEXIS 10612 (ED CA, Feb. 15, 2007), a federal magistrate judge, in a long opinion, recommended granting summary judgment for defendants. The effect of this is to reject claims under the 1st, 8th and 14th Amendments by a prisoner that he is entitled to have his African-Muslim name appear as his only name on California Department of Correction records in connection with his current sentence.
Meanwhile the Associated Press today has coverage of a suit filed by a South Dakota prisoner who is seeking various religious items and privileges in order to be able to practice Asatru.
New Zealand Reaffirms Religious Diversity
UPDATE: Here is the full text of the Draft National Statement on Religious Diversity.
Sunday, February 18, 2007
Recent Articles On Church-State, Law & Religion
Juan Ferreiro Galguera , Cartoons Crisis, Religious Feelings and European Court of Human Rights (Las Caricaturas Sobre Mahoma Y La Jurisprudencia Del Tribunal Europeo De Los Derechos Humanos), (Revista Electrónica de Estudios Internacionales, Vol. 12, pp. 1-40, 2006).
Dawinder S. Sidhu & Neha Singh Gohil, The Sikh Turban: Post-9/11 Challenges to this Article of Faith, (February 12, 2007).
Timothy D. Lytton, Clergy Sexual Abuse Litigation: The Policymaking Role of Tort Law, (Connecticut Law Review, Vol. 39, No. 3, p. 809, 2007).
From SmartCILP:
Irina D. Manta, Missed Opportunities: How the Courts Struck Down the Florida School Voucher Program, 51 St. Louis University Law Journal 185-202 (2006).