Publications Charge Army With Improper Aid To Missionaires Filming TV Show

Jason Leopold at The Public Record yesterday, following up on a claim in the weekly newsletter of the Military Religious Freedom Foundation, charges that the U.S. Army was improperly entangled in the filming of an episode of the Trinity Broadcasting Network's Christian reality TV series titled Travel the Road. The series follows two so-called "extreme missionaries" who travel around the world to preach the gospel. The 2006 season of the program ended with three episodes filmed in Afghanistan. The missionaries, Will Decker and Tim Scott, were embedded with the Army in Afghanistan for the programs. They accompanied Army soldiers on patrol and say in one episode that a Staff Sergeant played a hands-on role in helping them facilitate proselytizing of Afghans. Apparently the missionaries distributed copies of the New Testament translated into Dari to Afghans.

Recent Prisoner Free Exercise Cases

In Parks v. Brooks, (9th Cir., Dec. 2, 2008), the U.S. 9th Circuit Court of Appeals reversed a grant of summary judgment and ordered a prisoner's claim that he was wrongly denied kosher meals to go to trial. The court held that the sincerity of plaintiff's religious beliefs is a question of fact that cannot be decided by summary judgment. It also held that the trial court should have considered the prison regulations under RLUIPA even though the pro se plaintiff did not cite to the statute. Plaintiff was permitted to proceed with his damage claim for past violations, even though the prison was now serving him kosher meals. As reported by AP, plaintiff, who is black, was originally refused kosher meals because he had no "hereditary connection" to Judaism and could not show "a substantial philosophical understanding" of it.

In Mello v. Martinez, 2008 U.S. Dist. LEXIS 98547, (ED CA, Nov. 25, 2008), a California federal magistrate judge found that a Native American inmate had failed to adequately allege free exercise or RLUIPA violations in connection with authorities' refusal to permit him to take various religious objects with him when he was transferred to a different facility. The court dismissed the complaint with leave to amend.

In Gonzalez v. Corrections Corporation of America, 2008 U.S. Dist. LEXIS 98667, (ND MS, Dec. 5, 2008), a Mississippi federal court held that a Muslim inmate's religious exercise was not substantially burdened by his failing to receiving meals that met his religious requirements 13 times over a course of 8 months. The court held it was sufficient that the rest of the time he was served vegetarian meals which met his religious requirements, even though he would have preferred kosher meals. The court rejected his claims under RLUIPA, the free exercise and the equal protection clauses. In reaching its decision, the court assumed without deciding that RLUIPA applies to a state prison that has been privatized.

In Bergmann v. Hanna, 2008 U.S. Dist. LEXIS 100329 (D DE, Dec. 11, 2008), a Delaware federal district court rejected a claim that a prisoner's free exercise rights were infringed when on one day she was denied permission to attend chapel services to protect her from others in attendance.

Gov. Palin's Wasilla Church Hit By Suspected Arson

Today's Anchorage Daily News reports that in Wasilla, Alaska, a fire of suspicious origin caused $1 million damage to the Wasilla Bible Church Friday night. Damage is mostly confined to the back corner of the building. The church became well known during the recent presidential elections as the church attended by Gov. Sarah Palin. Palin's office issued the following statement:

Gov. Palin stopped by the church this morning, and she told an assistant pastor that she apologizes if the incident is in any way connected to the undeserved negative attention the church has received since she became a vice-presidential candidate on Aug. 29. Whatever the motives of the arsonist, the governor has faith in the scriptural passage that what was intended for evil will in some way be used for good.

Arson investigators say that as of now they have no leads as to intent or motive and no indication at this time of a political motivation.

Suit Says False Story of No Circumcision Is Libelous

The New York Times earlier this week focused on an interesting complaint (full text) filed last month in a New York federal district court. John F. Singer of Queens says that Centropa (the Central Europe Center for Research and Documentation), an oral history project based in Europe, in 2005 published an article on its website about his family. The article quotes Singer's mother as saying that Singer was not circumcised as an infant. Singer notified the Center's director that this was false, but the Center published it anyway, and republished it when its website was redesigned. The quote was not removed until October 2008. Singer's mother denies making the statement quoted in the story. Singer's complaint alleges that "as a Jewish male, it is in direct contradiction to Jewish law to be uncircumcised." It goes on to allege that as a result of the false story, Singer "suffered loss of his reputation, shame, mortification and extreme emotional distress." The suit, alleging libel and intentional infliction of emotional distress, seeks an injunction and damages.

Ohio School Board Sued By Teacher Who Wants To Divert Union Dues To Charity

The National Right to Work Legal Defense Foundation announced in a press release last week that it had filed a federal lawsuit on behalf of an Ohio elementary school teacher who wants her compulsory union dues diverted to charity because of her religious objections to her union's positions on abortion and gay rights. Kathy Hart, who is an active member of the Catholic Church, teaches in the Coldwater (Ohio) Exempted Village School District. A collective bargaining agreement requires her to pay union fees to the National Education Association (NEA) and its affiliates - the Ohio Education Association (OEA) and the Coldwater Teachers Organization (CTO). The NEA agreed to Hart's request, but the OEA refused to go along. Hart originally filed a religious discrimination complaint with the EEOC, and it authorized her in September to file her own civil suit. (See prior related posting.)

Jewish Charities Are Victims of Madoff Wall Street Fraud

A number of Jewish charities find themselves among the victims of the massive Ponzi scheme carried out by Wall Street legend Bernie Madoff. Thursday's New York Times reports on the arrest of Madoff in a fraud scheme whose losses could reach $50 billion. Yesterday a New York federal district court appointed a receiver and froze all of Madoff's remaining assets. (Full text of court's order.) Today's Washington Post reports that the entire $8 million endowment of the Robert I. Lappin Charitable Foundation was invested with Madoff. The website of the Lappin Foundation carries the following notice on its home page:

The programs of the Robert I. Lappin Charitable Foundation and the Robert I. Lappin 1992 Supporting Foundation are discontinued, effectively immediately. This includes Youth to Israel and Teachers to Israel.

The money used to fund the programs of both Foundations was invested with Bernard L. Madoff Investment Securities and all the assets have been frozen by the federal courts..... The money needed to fund the programs of the Lappin Foundations is gone. The Foundation staff has been terminated today.

"It is with a heavy heart that I make this announcement," said Robert I. Lappin, Foundation trustee. "The Foundations' programs have touched thousands of lives over many years in our efforts to help keep our children Jewish."

In addition, the North Shore-Long Island Jewish Health System lost $5 million in the fraud. The Texas-based Julian J. Levitt Foundation that focuses on Jewish causes lost about $6 million. Yeshiva University, on whose board Madoff served, is still attempting to determine how much it had invested with him. Madoff's own foundation that contributed extensively to Jewish charities also is now gone. Haaretz reports that Madoff resigned from Yeshiva's board on Friday. It also suggests that a number of other Jewish philanthropists, in New York and Palm Beach, have likely lost significant amounts in the fraud.

UPDATE: The Los Angeles Jewish Community Foundation can be added to the list of victims. Luke Ford.net reports that some $18 million of the Foundation's Common Investment Pool (currently valued as 11% of its assets) was invested with Madoff.

UPDATE 2: Monday's Wall Street Journal [subscription required] reports on additional investors who were victimized, including foundations of two well-known Jewish philanthropists: Elie Wiesel's Foundation for Humanity and Steven Spielberg's Wunderkinder Foundation (which received 70% of its 2006 income from Madoff investments).

UPDATE 3: Monday's Haaretz has more information on Jewish foundations that were impacted: including the Chais Family Foundation which contributes heavily to Jewish causes and the Gift of Life Foundation, a Jewish bone marrow registry that to which Madoff contributes substantial amounts.

9th Circuit Rejects Tax Deduction for Religious Day School Tuition

In Sklar v. Commissioner of Internal Revenue, (9th Cir., Dec. 12, 2008), the U.S. 9th Circuit Court of Appeals has once again rejected a claim by parents that they should be able to deduct for income tax purposes a portion of the tuition and fees paid to their children's Orthodox Jewish day schools. The parents insisted that expenditures covering solely religious education should be deductible as a charitable contribution to the schools. In 2002, the 9th Circuit had rejected a similar claim by the same parents for prior tax years. Both then, and in this case, the parents claimed that a 1993 settlement agreed to by the IRS permitting members of the Church of Scientology to deduct 80% of the cost of "auditing" and "training" was analogous to the exemption claimed by the Sklars. They argued that denying the exemption to Orthodox Jews violated the Establishment Clause and principles of administrative consistency. The court disagreed. Here is the Department of Justice press release on the decision. Josh Gerstein's blog discusses the case at greater length. (Also see prior related posting.)

Student's Op-Ed On Evolution Rejected For Class Magazine

In Franklin County, Virginia, the Gereau Center for Applied Technology and Career Exploration is a high school alternative that allows students to explore various careers. One of the courses it offers is Introduction to Media. The class produces a news magazine titled "In the Groove." Yesterday's Roanoke Times reports that a 16-year old student in the class, Brandon Creasy, says an opinion piece on evolution that he wrote for the magazine is being censored by the school's principal. The piece explains evolution by natural selection and says: "Evolution is a fact folks, not a theory!" (The full text of Creasy's essay accompanies the Times article.)

Principal Kevin Bezy says the piece needs to be revised because "It didn't present the theory with a sensitivity for those who hold other theories." The teacher of the course says that Principal Bezy was concerned that the article sounded angry at the church and could lead to community backlash. Brandon Creasy says his article was censored because the principal does not believe in evolution. Bezy says his personal views are irrelevant; he was acting in an unbiased way. Teacher David Campbell says he is using the situation to teach his class about the First Amendment and its application to student publications. [Thanks to Scott Mange for the lead.]

UPDATE: Commenters to this posting point out that the principal may have had other more legitimate reasons to reject the essay-- namely its resemblance to one available online.

Moratorium Placed On More Displays In Washington State Capitol

As previously reported, the Washington state Capitol's open forum policy for holiday displays has led to a flurry of applications after a Humanist group put up a controversial sign calling religion a "myth and superstition that hardens hearts and enslaves minds." The state Department of General Administration has had enough. KOMO News reported yesterday that the Department has declared a moratorium on any more displays while it reviews its policy. The Department says it has received more applications for displays than can be reasonably accommodated. This means that all the new proposals, including the one for a Festivus pole, remain on hold. Apparently the nativity scene, the Christmas tree and the Humanists' sign remain in the Capitol.

UPDATE: One of the applications put on hold by the moratorium is from the notorious Westboro Baptist Church, best known for picketing Iraq and Afghanistan veterans' funerals. Its proposed display was a poster captioned "Santa Claus Will Take You To Hell!" Dispatches from the Culture Wars (12/14) has more, along with a photo of the proposed display.

Costa Rican Court Rejects Religious Objection To Blood Test For Driver's License

Costa Rica requires each applicant for a drivers license to have a blood test so the individual's blood type can be noted on the license. Costa Rica Pages reported yesterday that a Costa Rican appellate court has rejected an attempt by a Jehovah's Witness to claim a religious exemption to the requirement. Apparently the court held that the government's interest in having this medical information which aids emergency services in treating victims of serious accidents justifies the infringement of religious belief.

Evangelical Lobbyist Resigns After Statement Supporting Gay Civil Unions

Richard Cizik has resigned as vice president for governmental affairs of the National Association of Evangelicals (NAE). Already under criticism from some of the evangelical community for his strong stance on global warming, Wednesday night's resignation came after Cizik told Terry Gross on on National Public Radio's Fresh Air that he now believes in civil unions for same-sex couples. He also expressed support for government programs that supply contraceptives to prevent unintended pregnancies. Christianity Today reports on developments. It also has the transcript of part of the NPR interview. NPR has a recording of the full program available on its website.

A statement issued yesterday by the NAE says: "in a December 2, 2008 broadcast interview on National Public Radio, Richard responded to questions and made statements that did not appropriately represent the values and convictions of NAE and our constituents. Although he has subsequently expressed regret, apologized and affirmed our values there is a loss of trust in his credibility as a spokesperson among leaders and constituents." Cizik was one of the signers of a New York Times ad earlier this month condemning violence against the LDS Church for its support of California's Proposition 8 banning same-sex marriage. (See prior posting.)

8th Circuit Hears Arguments In Gideon Bible Case

Yesterday the U.S. 8th Circuit Court of Appeals heard oral arguments in Roark v. South Iron R-1 School District, (Docket No. 08-1847). A recording of the full oral argument is available from this page of the 8th Circuit's website. In the case, a Missouri federal district court held that a school district's policy permitting adult members of Gideons International to distribute Bibles to elementary school students on school property during the school day violates the Establishment Clause. (See prior posting.) Today's Christian Post reports on the case. Liberty Counsel's Mat Staver who represents the school district framed the issue this way in a statement: "The Bible cannot be singled out for special penalties like contraband." Believers' Rights blog also discussed the case yesterday.

First Sikh Inaugural Ball Will Be Held

The Sikh Community Center announced this week that the first ever Sikh Inaugural Ball will be held in Washington, D.C. on January 20. The Sikh Inaugural Ball Inaugural Committee will hold the event a few blocks from the White House, at Ascot, I-The Indian Experience Restaurant. No more than 300 tickets will be sold.

3 Faith-Based Leaders Among 24 Recipients of Presidential Citizens Medal

On Wednesday, President Bush awarded the Presidential Citizens Medal to 24 individuals (including one posthumously). Three of the recipients, as described by a White House news release, were honored for their faith-based activities:

Charles W. Colson: For more than three decades, Chuck Colson has dedicated his life to sharing the message of God’s boundless love and mercy with prisoners, former prisoners, and their families. Through his strong faith and leadership, he has helped courageous men and women from around the world make successful transitions back into society. The United States honors Chuck Colson for his good heart and his compassionate efforts to renew a spirit of purpose in the lives of countless individuals.

John P. Foley, S.J.: Father John Foley has successfully reached some of our Nation’s most vulnerable youth and instilled in them a love of learning. Through his spiritual leadership of a faith-based education system that partners with the community, he has provided opportunities for young people to achieve their dreams. The United States honors Father John Foley for his commitment to helping his fellow citizens lead lives of integrity and achievement.

Timothy R. Scully, C.S.C.: Father Timothy Scully has committed his life to strengthening communities through faith-based education that prepares individuals for a lifetime of achievement, service, and compassion. Through his leadership at the University of Notre Dame, he has developed innovative ways to support under-resourced schools. The United States honors Father Timothy Scully for demonstrating that every human being has boundless potential.

The Medal was created in 1969 by Executive Order 114994. According to the official website for the Medal, it is intended "to recognize U.S. citizens who have performed exemplary deeds of service for the nation." Approximately 100 people have been awarded the Medal since 1969.

Federal Court Preliminarily Enjoins South Carolina "I Believe" Plates

A South Carolina federal district court has issued a preliminary injunction barring the state of South Carolina from further advertising, distribution or production of its controversial "I Believe" license plate. In Summers v. Adams, (D SC, Dec. 11, 2008), the court found that plaintiffs have standing and had made a strong showing of the likelihood of success on their Establishment Clause challenge to the special plates. The plates feature the words "I Believe" with a cross superimposed on a stained glass window. The court said it was unlikely that the "I Believe Act" which authorized the plates passed any of the three prongs of the Lemon test. Defendants in the case were the Director of Motor Vehicles, as well as the Director of the Department of Corrections since the plates are apparently made in state prisons. A release from Americans United (which filed the case) applauding the ruling also has links to some of the briefs and pleadings. (See prior related posting.)

Australia High Court Gives Expansive Definition of Tax-Exempt Charity

In Commissioner of Taxation of the Commonwealth of Australia v Word Investments Limited, [2008] HCA 55 (Dec. 3, 2008), Australia's High Court held that "a company that conducted commercial businesses to raise funds for a missionary organisation was entitled to the status of a tax-exempt charity." (High Court press release). In a 4-1 decision, the court held that Word Investments, an investment business (which also formerly operated a funeral business), is a charitable institution because all of its profits support the Christian activities carried out by Wycliffe Bible Translators which is a recognized charity. Under its memorandum, Word's profits may not be distributed to its members. A report on the decision from the law firm of Corney & Lind says that the decision will now permit charities "to pursue 'asset protection' strategies, by incorporating separate entities to raise funds for their charitable purposes."

Court Dismisses Rabbi's Breach of Contract Claim On 1st Amendment Grounds

In Friedlander v. Port Jewish Center, (ED NY, Dec. 8, 2008), a New York federal district court dismissed a breach of contract claim brought by a rabbi against her congregation. Rabbi Ariel Friedlander was fired by her congregation after members complained about a number of things, most relating to the manner in which she conducted religious services and life cycle events. The court held that deciding the case would unduly entangle it in a religious dispute: "Here, adjudicating the Plaintiff’s claim would ... necessarily require the Court to review the Plaintiff’s performance of her rabbinical duties. This is precisely the type of inquiry that the First Amendment prohibits." [Thanks to Volokh Conspiracy for the lead.]

Suit Challenging Iowa State Employee Charity Rules Is Settled

An Alliance Defense Fund release reported Wednesday that a settlement has been reached in Association of Faith-Based Organizations v. Anderson, a lawsuit challenging the exclusion of religious charities from the Iowa One Gift program under which state employees can designate participating charities to receive their contributions withheld by payroll deduction. (See prior posting.) The regulations, challenged on First Amendment grounds, excluded from participation any charitable organization that "engages in any way in sectarian activities," advocates "religious viewpoints," or "discriminates" on the basis of religion in employment. Under the settlement, the state Department of Administration has amended its rules so they exclude only charities that fail to comply with Iowa's ban on employment discrimination. Iowa law includes an an exemption for the faith-based hiring policies of religious employers. The Sioux City Gospel Mission, a member of the Association of Faith Based Organizations that brought the lawsuit, has already been approved to participate in the One Gift program under the new rules.

New Jersey Panel Recommends Permitting Same-Sex Marriage

The New Jersey Civil Union Review Commission yesterday submitted its final report titled The Legal, Medical, Economic & Social Consequences of New Jersey's Civil Union Law. The report recommends that the state legislature and Governor "expeditiously" change the law to permit same-sex couples to marry. A portion of the 79-page report discusses testimony in opposition to same-sex marriage. It states in part:

Some witnesses opposed to same-sex marriage testified concerning their understanding of the meaning and authority of Biblical scripture.... While the Commission also heard considerable testimony to the contrary, it is not the role of this Commission to comment on the merits of religious tenets or faiths of any of the witnesses who testified. This Commission recommends that the civil institution of marriage be extended to same-sex couples.

The Review Commission's website links to extensive background material, including transcripts of Commission hearings. An AP story discusses the Commission's report.

Group Criticizes French Report On Religious Sects

The Institute on Religion and Public Policy yesterday wrote to French President Nicolas Sarkozy to express concerns about recommendations in a 2008 Report to the Prime Minister by a government agency known as the Inter-Ministerial Mission to Fight Against Sectarian Deviations, or MIVILUDES. (Full text of letter.) According to an IRRP press release, the recommendations on dealing with religious sects:

would reform laws to limit the free practice of religion of minority groups. Groups on France's "sect" list include Southern Baptists, Hasidic Jews and Buddhists.... [T]he report classes "victims" of sects into three categories: "1) 'followers who are not yet conscious of being victims;' 2) former followers and 3) 'victims' families." The MIVILUDES report further prescribes ways to intervene for 'victims.' The recommendations include having judges place 'consenting victims' under guardianship and the creation of mobile intervention cells each with a psychologist expert on sects who could intervene during police operations or custody matters.

The letter to Sarkozy was based on a Memorandum from IRRP's committee of experts which concludes:

These measures contravene fundamental human rights principles articulated in international instruments that France has signed and ratified as well as decisions of the European Court of Human Rights and the UN Human Rights Committee interpreting the right to religious freedom and the State’s corresponding duty of religious neutrality and impartiality. Under these circumstances, these recommendations should not be transposed into law.

Senate Resolution Condemns Mumbai Attack, Opposes Religious Extremism

The U.S. Senate on Tuesday passed S. Res. 724, condemning the recent terrorist attack in Mumbai, India. In addition to calling upon Pakistan to root out extremism and calling on President-elect Obama to bolster counter-terrorism cooperation with India, the resolution:

urges bolstered United States efforts to develop and implement policies and projects to combat all forms of religious extremism, including anti-Semitism, in order to deter the type of targeted attacks like that waged against the Chabad Lubavitch center in Mumbai.

Senators Casey and Voinovich, co-sponsors of the Resolution issued a press release announcing Senate passage of the measure.

Sikh Wins Religious Bias Complaint Against CA Corrections Department

Yesterday's Sacramento Bee reports on a recent California State Personnel Board administrative law judge's decision finding that the California Department of Corrections and Rehabilitation (CDC) discriminated against a Sikh applicant for employment. Trilochan "Obe" Oberoi met most of the requirements for being hired as a prison guard. However, CDC refused to allow him to take the gas mask fit test unless he shaved his beard. The ALJ, finding religious discrimination, said that CDC has allowed correctional officers with skin problems that prevent shaving to use an alternative type of mask. He wrote: "it is difficult to imagine why [CDC] cannot extend the same accommodation to [correctional officers] who cannot shave for religious reasons." CDC has until Dec. 18 to appeal the decision.

11th Circuit Hears Arguments In Christian Fraternity's Bid For Recognition

Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments in Beta Upsilon Chi v. Machen, a case in which BYX, a Christian fraternity, is challenging the University of Florida's refusal to grant it recognition. University rules prohibit religious (and other) discrimination by recognized student organizations. BYX requires its members to believe in Jesus. In May, a Florida federal district court refused to issue a preliminary injunction against the University. However in August, the 11th Circuit ordered the University to grant recognition to the fraternity while its appeal is pending. (See prior posting.) The AP reports that BYX argued to the court that the University's policy threatens its core beliefs. University's counsel responded that recognized student groups are an extension of the educational process and should be open to all. BYX can maintain its current policy and continue to operate on campus without recognition. However this will mean it is not eligible for funding, priority use of facilities, access to certain bulletin boards, listing in University publications, a University website and email address.

Court Allows Menorah Again In Downtown Poughkeepsie

Articles last week and this week in the Poughkeepsie Journal report on efforts by a local Chabad rabbi in Poughkeepsie, New York, to again erect a 22-foot tall menorah on downtown city property as he has done each Hanukkah since 1996. In the past, city workers have helped him put it up. However this year, the city (along with four intervenors) sued claiming that the use of city workers violates the Establishment Clause.

After complaints last year, the city adopted a policy barring city workers from helping to put up any displays, but allowing anyone to place religious or secular holiday symbols on a specified city-owned vacant lot. Rabbi Yacov Borenstein wants to continue to use the traditional city site for his display, and wants a city "cherry picker" truck to lift him to the top of the menorah for the daily lighting ceremonies. Trial court Justice James D. Pagones ruled yesterday in favor of Rabbi Borenstein, in part because the city traditionally uses tax money to put up wreaths on downtown utility poles and to decorate Christmas trees on city-owned property. He wrote that excluding the menorah would have the principal effect of promoting Christianity and inhibiting Judaism in violation of the Establishment Clause.

UPDAATE: On Dec. 16, a state appellate court judge refused to stay Judge Pagones' ruling pending appeal. (Poughkeepsie Journal).

Articles Analyze Background of Nigeria's Muslim-Christian Violence

Nigeria's Daily Sun this week published an extensive two-part article explaining the background of the recent much-publicized Muslim-Christian violence in the city of Jos. (See prior posting.) Part 1 of the article titled Beyond the Black Friday in Jos says that "an incendiary mix of factors including politics, ethnicity, religion and class combine to create ideal circumstances for sectarian violence" which is common in northern Nigeria. Part 2 says that "the Federal Government must work on erecting a wall of separation between religion and politics," including an end to sponsorship of Mecca and Jerusalem pilgrimages. It also complains that "a frightening number of our young people are unemployed, unschooled and unskilled. They live on the margins of the society from where they can be recruited to torch churches and mosques or to blow up oil pipelines." It analyzes the cause: "some politicians come in the name of Allah; others come in the name of Jesus. The end result is the same – the plunder of the treasury and the impoverishment of the people."

Transcript Available Of Today's SCOTUS Arguments In Iqbal Case

The U.S. Supreme Court today heard oral arguments in Ashcroft v. Iqbal (Docket No. 07-1015), an appeal growing out of claims that the U.S. government engaged in religious, racial and national origin discrimination in its arrest and subsequent treatment of more than 700 Muslim or Arab men treated as persons of "high interest" after the 9/11 attacks. This case was brought by Pakistani Muslim, Javaid Iqbal, who was placed in solitary confinement for almost six months. He was ultimately deported. Among the defendants named in Iqbal's lawsuit are former Attorney General John Ashcroft, and FBI Director Robert Mueller. The government claimed that they should be dismissed on the basis of qualified immunity. However the Second Circuit disagreed. (Full text of 2nd Circuit decision.)

Here is the government's description of the issues in its petition for certiorari:

The court of appeals held that cabinet-level officers and other high-ranking officials-in this case, a former Attorney General and the incumbent Director of the FBI-may be subjected to discovery and the demands of litigation (at least through the summary judgment stage) in this Bivens action based on bare and conclusory allegations that they knew about and condoned the allegedly discriminatory actions of much-lower-level officials in the Department of Justice in responding to an unprecedented national-security crisis. In addition, the Second Circuit's decision effectively holds that high- ranking officials-including Cabinet officers-may be held potentially liable in Bivens suits on a constructive notice theory that is tantamount to imposing respondeat superior liability.

Today the Los Angeles Times and the AP report on the arguments presented. The full transcript of the arguments is now available, as are all the briefs of the parties and amici.

Today Is 60th Anniversary of Universal Declaration of Human Rights

Today is the 60th anniversary of the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights. Article 18 of the document provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

President Bush yesterday issued a Proclamation (full text) declaring December 10 as Human Rights Day; December 15 as Bill of Rights Day; and the week beginning December 10 as Human Rights Week.

In Britain, the National Secular Society is marking the day by launching the "One Law for All" campaign inthe House of Lords-- a campaign against the use of Sharia law in Britain. According to an NSS press release: "The campaign calls on the UK government to recognise that Sharia law is arbitrary and discriminatory and for an end to Sharia courts and all religious tribunals on the basis that they work against and not for equality and human rights. The campaign also calls for the Arbitration Act 1996 to be amended so that all religious tribunals are banned from operating within and outside of the legal system."

Arizona Supreme Court Hears Arguments On School Vouchers

Attorneys yesterday presented oral arguments to the Arizona Supreme Court in Cain v. Horne, a case testing the constitutionality of two Arizona school voucher programs. An Arizona appellate court had held that while the programs do not violate the Religion Clause of Arizona's constitution, they do violate the separate state constitutional ban on aid to private or sectarian schools. (See prior posting.) The Arizona Capitol Times reported on the arguments, which focused on whether families receiving vouchers, rather than the schools, are the "true beneficiaries" of the state funds. Voucher opponents argued that the state voucher plans effectively reroute funds intended for public schools into private schools in violation of the drafters' desire to protect the public school system and avoid forcing citizens to pay for religious instruction with which they disagree. Before the hearing, hundreds of voucher supporters demonstrated near the court.

Sacristan Gets Unemployment Comp Despite Firing For Opposing Parish Policy

In Czajka v. Department of Employment Security, (IL App., Dec. 5, 2008), an Illinois appellate court overturned the denial of unemployment compensation benefits to Carmen Czajka, a sacristan at the Saint Liborius School responsible for keeping the sacristy clean. She was fired because of her disagreement with a Parish program that would show school children a film, followed by discussions, concerning inappropriate physical contact. She had contacted parents warning them about the program and telling them that they could opt out of the video which Czajka believed "bordered on pornography." The court said: "there simply is no evidence demonstrating that [Czajka] engaged in the conduct with an awareness of any rule or policy forbidding her from expressing her views to parishioners." It also concluded that her actions did not cause harm to the parish. Finding these grounds on which to overturn the denial of benefits to Czajka, the court said it need not decide her First Amendment challenge to the denial of benefits.

Proposal To Protect Scientology From Picketing Tabled

The Riverside, California Board of Supervisors yesterday decided that the proposed cure was worse than the disease as they voted to defer further consideration of an anti-picketing ordinance that had been introduced in response to repeated protests against the Church of Scientology by the international group "Anonymous" that opposes Scientology. The San Diego Union Tribune reports that the tabled proposal would have restricted "targeted picketing" in unincorporated communities to at least 300 feet away from the subject's residence. Council members were concerned that they were being drawn into a religious dispute, and that, in any event, merely moving a protest away from Scientology's San Jacinto compound to a different location does not solve the problem.

Oral Arguments Heard In Missouri Baptist Dispute

The Associated Baptist Press yesterday reported on arguments presented on Nov. 25 to a Missouri state appellate court in the latest installment in a dispute between the Missouri Baptist Convention (MBC) and five institutions that amended their charters to break away from MBC in 2000 and 2001. The institutions apparently disagreed with the fundamentalist stance of new leaders of MBC. (Background.) One of those institutions, Windermere Baptist Conference Center, was the focus of this appeal from a trial court decision that had upheld the change in the Windermere's articles of incorporation. At issue are questions under Missouri's non-profit corporation law as to who could properly vote on the article amendments. Windermere argues that it has no members, so its directors are the proper parties to vote. MBC on the other hand argued that it was the sole member of Windermere and that it controls amendments. The website missouribaptists.org says that MBC has spent $3.7 million in its lawsuits attempting to reassert control over the five break away institution. (See prior related posting.)

Ads Countering Humanists To Appear On D.C. Busses

Washington Post columnist John Kelly yesterday reported on the response being mobilized to ads recently placed on D.C. buses by the American Humanist Association. The Humanists' ad reading "Why believe in a god? Just be good for goodness' sake" has generated considerable reaction. (See prior posting.) Now former Capitol Hill staffer Jo Ellen Murphy has raised nearly $9000 for counter-ads that will begin running on buses next week. They will show the Sistine Chapel's image of God's finger reaching out to Adam, with the added words: "Why Believe? Because I created you and I love you, for goodness' sake. -- God." Murphy's campaign has its own website, "I Believe Too" which features a photo of the ad. A separate group, Pennsylvania Friends in Christ, will be running ads reading: "Believe in God. Christ is Christmas for goodness sake."

ABC Interview With Bush Includes Extensive Discussion of Religious Views

Last night, ABC's Nightline aired a wide-ranging interview with President George W. Bush. An article and published excerpts of the interview on ABC's website report that among the topics discussed were Bush's religious beliefs. Bush said he is not a literalist when it comes to reading the Bible. Asked about his views on evolution, Bush said:

I think evolution can -- you're getting me way out of my lane here. I'm just a simple president. But it's, I think that God created the Earth, created the world; I think the creation of the world is so mysterious it requires something as large as an almighty, and I don't think it's incompatible with the scientific proof that there is evolution.

Asked about the development of his personal faith, Bush said:

It is hard for me to justify or prove the mystery of the Almighty in my life. All I can just tell you is that I got back into religion and I quit drinking shortly thereafter and I asked for help -- I was a one-step program guy.

In the interview, Bush rejected the notion that he was chosen by God to be president, and the suggestion that his decision to go to war in Iraq was based on his religious views.

6th Circuit Upholds Michigan's Exclusion of Biblical Quotes From Advocate Directory

In Grosjean v. Bommarito, (6th Cir., Dec. 4, 2008), the U.S. 6th Circuit Court of Appeals rejected free speech, free exercise, overbreadth and vagueness challenges to the editorial practices of Michigan's Unemployment Insurance Agency in its listing of advocates available to assist claimants. Advocates are private contractors paid by the state to furnish free advice and representation to claimants in their appeals of rulings on unemployment benefits.

The Agency removed Biblical quotations that plaintiffs wished to include in their profiles that UIA sent out to claimants. Clients had previously been attracted to plaintiffs because of those references. The court held that the current compilation, using a required template that limits the form and style of biographical information presented, is government speech. So UIA can make content-based choices to limit published information to narrow professional biographical data. An earlier, more open-ended version, of the listings arguably were not government speech. However they were a non-public forum, in which the UIA could impose reasonable, content-based regulation. (See prior related posting.)

Denial of Equal Protection To Jews Claimed In Appeal of Bail Denial

A fascinating religious discrimination issue is raised in a motion to reverse an Iowa federal magistrate's denial of bail in the prosecution of Sholom Rubashkin. (Full text of Motion and of the Memorandum in Support of the Motion in US v. Rubashkin, (ND IA, filed 12/8/08.)) Rubashkin is the former CEO of the large Postville, Iowa kosher meat packing plant, Agriprocessors, Inc. The plant was the subject of a high-profile immigration enforcement raid earlier this year. (See prior posting.) Originally Rubashkin, charged with immigration law violations, was released on bail. Two weeks later he was arrested under a superseding indictment, this one including bank fraud charges. This time the magistrate judge denied bail, claiming a risk that Rubashkin would flee to Israel. In denying bail, the magistrate pointed to the fact that two other Agriprocessors supervisors had fled, and that Israel's Law of Return gives Jews moving there an automatic right of citizenship.

In appealing the magistrate's order to the court, defendant argued first that the extradition treaty with Israel made reliance on the Law of Return useless. Defendant went on to argue that invoking the Law of Return violated his equal protection rights. The brief argues that a rule which treats Jews differently is subject to strict scrutiny. It went on:

The government clearly has a compelling interest in insuring that defendants are present at trial.... But it has no compelling interest in a rule that Jews are a heightened bail risk, for the simple reason that is has failed to demonstrate any statistical correlation between Jews and flight risk. In other words, the government introduced no evidence that Jews are more likely to flee because of the Law of Return than non-Jews. An unproven assumption is fatal in a case subject to strict scrutiny.... Moreover, there are clearly narrower, tailored measures, that would be effective rather than subjecting Jews to a different set of standards.

JTA reported on these developments yesterday.

UPDATE: Here is the full text of the magistrate's Nov. 20, 2008 Order for Detention denying bail, thanks to Volokh Conspiracy.

President Bush Sends Muslims Greetings On Eid al-Adha

In a statement issued yesterday (full text), President Bush sent greetings to Muslims around the world who were celebrating Eid al-Adha, the Festival of Sacrifice. As reported by AFP, the festival, which was celebrated yesterday as the Hajj concludes, commemorates Abraham's willingness to sacrifice his son at God's command. In the end, God provided a sheep as an alternative sacrifice. Muslims sacrifice a sheep to symbolically re-enact the moment. In his statement, Bush said: "Our Nation is blessed by vibrant Muslim communities. On this holiday, all Americans celebrate our religious liberty, and we remember that religious freedom belongs not to any one nation but to the world."

Cert. Denied In Case On Religious Candy Canes In School

Yesterday, the U.S. Supreme Court denied certiorari in Curry v. Hensinger, (Docket No. 08-190) (Order List.) In the case, the 6th Circuit Court of Appeals concluded that a Saginaw, Michigan school had legitimate pedagogical reasons for barring a fifth-grader from selling candy canes with religious material attached as part of a classroom project to learn about marketing. (See prior posting.) Education Week reported on the Supreme Court's action. [Thanks to Alliance Alert for the lead.]

Another Appeal To 5th Circuit Filed In World Wide Street Preachers Case

According to the Monroe (LA) News Star, an appeal to the 5th Circuit has been filed in World Wide Street Preachers Fellowship v. Town of Columbia, Louisiana. The Fellowship is seeking reversal of a determination by a Louisiana federal district court that the town of Columbia should be dismissed as a defendant because the court found no widespread municipal practice of infringing speech rights. (See prior posting.) A claim under 42 USC Sec. 1983 can be brought against a municipality only if it has a policy or custom of infringing constitutional rights. Regardless of the outcome of the appeal, the trial court has allowed plaintiffs to proceed against a police officer who broke up the Fellowship's protests. The Fellowship generally protested against abortion, homosexuals and the ordination of women ministers. The case has already been on appeal once before the 5th Circuit.

Raelians Threaten To Sue Las Vegas Police For Airport Discrimination

Ricky Roehr, a bishop in the Raelian Movement and its North American Continental Guide, says that the movement will file suit against the Las Vegas (NV) police and the Las Vegas airport authority for religious discrimination and abuse of power. A press release from the Raelians says that they were forced to leave the Las Vegas McCarran International Airport on Saturday afternoon under threat of arrest as they awaited the arrival of their spiritual leader, Rael. Roehr says that none of the Raelians created any disturbance that would justify the police order. Hundreds of believers are expected to attend the Dec. 13th International Raelian Celebration in Las Vegas. The Raelians believe that life on earth was created by extraterrestrial human beings. A French journalist, Rael, learned this in 1973 when he was contacted by a visitor from another planet. (Rael website.)

2nd Circuit Hears Arguments In Vermont License Plate Case

The U.S. Second Circuit Court of Appeals yesterday heard oral arguments in Byrne v. Rutledge, a case in which a Vermont federal district court upheld Vermont's policy of refusing to place religious messages of any kind on "vanity" license plates. (See prior posting.) Yesterday's Burlington Free Press reported on the arguments. Appellants claim that the rule amounts to unconstitutional viewpoint discrimination since motorists can obtain vanity plates with letters or numbers that express their non-religious viewpoints on policies. Motorist Shawn Byrne had wanted to obtain a license plate reading "JN36TN," short for John 3:16.

President Bush Gives Half-Hour Interview To Saudi TV Network

Yesterday, President Bush gave a 30-minute interview (full text) to Middle East Broadcasting Center reporter Nadia Bilbassy-Charters. MBC is a Saudi-run television network broadcasting from the UAE. Here an excerpt from the interview:

Q: Sir, some people say that the war on terror is a war on Islam.... Yet you went to the first mosque after 9/11 and you spoke there. How do you convince people in the Middle East that George Bush is not fighting a war against Islam?

THE PRESIDENT: ... [I]t troubles my soul, because I believe we're all God's children. And I hear people say, George Bush doesn't like Muslims; he wants to fight Muslims.... But I am objecting to anybody who murders innocent people to achieve their objectives. I don't think people who murder in the name of religion are truly religious people. And secondly, I would hope that people would know that when we try to use some of our influence to help on education programs ... or we welcome students, Saudi students, to the United States to study here, that it's a sign of respect and a sign of my desire to reach out to all people regardless of their religion.

Vietnam Court Gives Suspended Sentence To Catholic Demonstrators

In Vietnam today, eight Catholics were tried for disturbing public order and damaging property during a series of prayer vigils last year. The vigils were protesting the government's asserted ownership of Church property and the proposed sale of the property near Thai Ha Church to developers. Officials say that defendants destroyed a brick wall around the property whose claimed ownership by the city of Hanoi is disputed by Catholics. (AP). Javno reports that at the conclusion of the trial, seven of the defendants were given suspended prison terms and one was merely given a warning. Nearly 1,000 supporters carried signs outside the Dong Da district court where the trial was taking place. The sentence was more lenient than many had expected. Defendants could have been sentenced to up to seven years in prison. (See prior related posting.)

Title VII's Religious Organization Exclusion Held Non-Jurisdictional

Smith v. Angel Food Ministries, Inc., 2008 U.S. Dist. LEXIS 98280 (MD GA, Dec. 4 2008) is a religious discrimination decision that will be of interest to experts in the Federal Rules of Civil Procedure. Angel Food Ministries (AFM) is an organization that partners with churches to help distribute food to the poor. James and Crystal Smith, who were employed by AFM in non-clergy positions, were discharged because they had stopped attending Emmanuel Praise Church. Attendance was a condition of employment. When the Smiths sued under Title VII of the 1964 Civil Rights Act claiming religious discrimination, AFM moved to dismiss for lack of subject matter jurisdiction, arguing that AFM comes within the exclusion in Title VII (Sec. 702) that permits religious organizations to hire on the basis of religion. The Smiths contend that AFM is not a religious organization entitled to claim that exemption. The court held that whether the religious exemption is available is not a "jurisdictional" question. Therefore plaintiffs' FRCP Rule 12(b)(1) motion is not the appropriate way to assert the defense. Instead the defense should be raised, after discovery, by way of a Rule 12(b)(6) motion for failure to state a claim, or a Rule 56 motion for summary judgment.

Religious Worker Visa Rules Have Been Amended

The Department of Homeland Security has recently amended its regulations implementing the Citizenship and Immigration Services' Religious Worker program. (73 Fed. Reg. 72275 (Nov. 26, 2008)). The long-pending regulations were adopted after Public Law 110-391, signed by the President on Oct. 10, 2008, mandated their issuance within 30 days. Responding to concerns about fraud in the religious worker program, the new regulations require

religious organizations seeking the admission to the United States of nonimmigrant religious workers to file formal petitions with USCIS on behalf of such workers.... USCIS will conduct inspections, evaluations, verifications, and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. This rule adds and amends definitions and evidentiary requirements for both religious organizations and religious workers. Finally, this rule amends how USCIS regulations reference the sunset date by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence.

The new rules appear to answer prospectively an issue left open by the 9th Circuit in a decision handed down last week. In order to qualify as a "religious occupation," among other things the duites may not be "primarily administrative or support such as janitors, maintence workers, clerical employees, fund raisers, persons solely involved in the solicitation of dontations, or similar positions, although limited administrative duties that are only incidental to religious functions ar permissible."

Responding to criticism of the rules as they were originally proposed in 2007 (see prior posting), USCIS announced:

The final rule also removes the examples of employment positions from the proposed definition of "religious occupation.'' The listed employment positions were only examples, but commenters appeared to believe that the examples represented an exhaustive or biased list of employment positions that were eligible for religious worker status and that the list was tailored only to Judeo-Christian organizations. USCIS has removed those examples to eliminate confusion. The final rule, however, clarifies that religious organizations must submit evidence identifying religious occupations that are specific to that denomination.

India's Supreme Court Says Marriage By Christian Under Hindu Marriage Act Is Void

In Raj v. Pavani, (India Sup. Ct., Dec. 4, 2008), the Supreme Court of India held that a marriage entered into and registered under the Hindu Marriage Act is void where the husband was actually a Roman Catholic and misrepresented at the time of the marriage that he was Hindu. The court held that the wife (who was now remarried) should be granted a decree of nullity. The Hindu on Sunday reported on the decision.

Recent Articles and Book of Interest

From SmartCILP:

• Donald R. Davis, Jr., Before Virtue: Halakhah, Dharmasa, and What Law Can Create, 71 Law & Contemporary Problems 99-108 (2008).


• Laura Dudley Jenkins, Legal Limits on Religious Conversion in India, 71 Law & Contemporary Problems 109-127 (2008).


• Martha Nussbaum, David C. Baum Memorial Lecture. Living Together: The Roots of Respect, 2008 University of Illinois Law Review 1623-1641.

New Book:

• Zaki Cooper and Guy Lodge (Eds.), Faith in the Nation:Religion, Identity and the Public Realm in Britain Today, (IPPR, Dec. 2008), reviewed in the Times of London.

Group Calls for Removal of Texas State Board of Education Member

The Texas Freedom Network is calling for the removal of Cynthia Dunbar from the Texas State Board of Education. Saturday's Ft. Wort Star-Telegram reports that the call came after Dunbar published a new book titled One Nation Under God. In it she claims that the public school system is unconstitutional and tyrannical, because public schools undermine the scriptural authority of families to direct their children's education. However she goes on to say that it would not be responsible at this late date to try to dismantle our system of public education. Dunbar says her book was written for Christian parents seeking an alternative to public education. [Thanks to Scott Mange for the lead.]

Texas County Denies Televangelist Tax Exemption Because of Secrecy on Salaries

Ft. Worth (TX) televangelist Kenneth Copeland, who has been resisting Congressional requests for financial information from his prosperity gospel organization (see prior posting), now finds that this lack of transparency has created state tax problems. According to yesterday's Ft. Worth Star-Telegram, Tarrant County, Texas has denied Kenneth Copeland Ministry's application for a personal property tax exemption for its $3.6 million jet. Texas Comptroller of Public Accounts Form 50-115, which charitable organizations must file to apply for a property tax exemption, requires the charitable organization to attach a list of salaries and other compensation for services paid in the last year, and to list any funds distributed to members, shareholders or directors. Tarrant's chief appraiser denied the Ministry's application because Copeland's accountant was only willing to state that the ministry "is operated in a way that does not result in accrual of distributable profits, realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered...." The Ministry is appealing the exemption denial at a hearing on Monday.

Recent Prisoner and Institutional Free Exercise Cases

In Desimone v. Bartow, 2008 U.S. Dist. LEXIS 97271 (MD GA, Oct. 27, 2008), a Georgia federal district court refused a request to appoint counsel in a pro se case in which plaintiff, confined in a mental health Department of Corrections facility, alleged that his free exercise rights were violated by authorities denying him the ability to write in a language he refers to as "Atlantean." (See prior related posting.)

In Hawkins v. Ferriter, 2008 U.S. Dist. LEXIS 98220 (D MT, Dec. 4, 2008), a Montana federal district court dismissed a prisoner's free exercise claim against Montana Governor Brian Schweitzer. Plaintiff had alleged that the Governor holds authority over the workings of the Montana State Prison and harbors "anti-Catholic feelings."

In Marr v. Foy, 2008 U.S. Dist. LEXIS 97891 (WD MI, Dec. 3, 2008), a Michigan federal district judge affirmed a federal magistrate's order denying plaintiff prisoner's motion for appointment of counsel in a suit alleging free exercise and RLUIPA violations. The suit alleges that in retaliation for his requesting kosher food, authorities assigned plaintiff to work as a "midnight porter" which interfered with his daytime religious study and worship.

CBN News reports (Dec. 4) that the ACLU of New Jersey has filed a lawsuit against New Jersey prison authorities on behalf of inmate Howard N. Thompson Jr., an ordained Pentecostal minister, challenging a 2007 ban imposed by the New Jersey Corrections Department on preaching by inmates.

California Housing Discrimination Case Settled

Lookout News reported on Friday that a settlement has been reached in a complex group of lawsuits in Santa Monica, California growing out of charges that a group known as Or Khaim Hashalom (OKH) was evicting tenants from a rent-controlled apartment building because of their race, religion and national origin in order to build luxury condominiums for Jewish persons from the Middle East. The building is located in an exclusive part of the city. The city also says that OKH falsely claimed to be a religious organization. The city had designated the building an historic landmark in order to keep OKH from demolishing it. (See prior posting.) Under the terms of the settlement, OKH will adopt a comprehensive fair housing policy, will return the apartments to the jurisdiction of the Rent control Board at their former rates, and will keep the building on the rental market for at least three years (with an additional one year grace period for current tenants). The settlement allows evicted tenants to move back and provides for mandatory mediation with tenants over damages.

Samoan Council of Churches Wants To Limit Entry of New Religions To Country

In the South Pacific Ocean nation of Samoa, Congregational Church minister Oka Fau'olo, who is head of the Samoa Council of Churches, says the Council has asked the country's Prime Minister to consider limiting the constitutionally protected freedom of religion in the country. According to Radio New Zealand on Friday, Fau'olo want the government to limit the number of religious groups entering the country. He is concerned that mainstream churches are losing members. Their congregants are converting to small denominations and non-Christian beliefs. Currently the main religious groups in Samoa are the Congregational Christian Church of Samoa, the Methodists, Roman Catholics, Latter Day Saints, Assembly of God and Seventh Day Adventist. The prime minister is skeptical about the proposal that would likely require amendment Article 11 of Samoa's Constitution. The limitation is not a new idea. A 2002 Pacific Magazine article reported Fau'olo supported the idea then, although the Samoan Supreme Court had ruled that it was illegal for village councils to forbid the entry into villages of new religious groups.

Nebraska High Court Rejects Free Exercise Challenge To Newborn Screening Law

In In re Interest of Joel Anaya, (NE Sup. Ct., Dec. 5, 2008), the Nebraska Supreme Court held that the religious freedom clause of the Nebraska Constitution (Art. I, Sec. 4) should be interpreted identically to the federal Free Exercise clause in determining whether a neutral law of general applicability is constitutional. Applying this standard, the court rejected a state constitutional free exercise challenge to a Nebraska statute that requires newborns to have a blood screening test for specified metabolic and genetic disorders. The court pointed to its 2005 decision in which it had reached the same conclusion in a federal free exercise challenge to the law brought by the same family in connection with another of their children. However, the court concluded that the state's enforcement of the newborn screening law by taking temporary custody of the newborn was not justified, since there was not evidence of child neglect. The AP today reports on the decision. (See prior related posting.)

Palestinian Infighting Prevents Gazans From Making Hajj

Some 3000 Palestinians seeking to make Hajj this year find themselves caught in rivalry between Hamas that controls the Gaza Strip and the government of President Mahmoud Abbas that controls the West Bank. According to an AP report yesterday, both rivals submitted a list of Gazans seeking Hajj permits to Saudi authorities. Saudi Arabia granted permits only to the Gazans listed on Mahmoud Abbas' list. Piqued over this, Hamas refuses to permit those individuals to leave Gaza. The Hajj begins tomorrow. (See prior posting.) The head of Egypt's al-Azahr University said that Hamas' interference with pilgrims is a violation of Islamic law. Hamas however says that choosing participants has always been left to local officials, and Abbas has politicized the process.

9th Circuit Defines Religious Workers For Visa Purposes

In Love Korean Church v. Chertoff, (9th Cir., Dec. 5, 2008), the 9th Circuit Court of Appeals interpreted the provisions of 8 USC 1153(b)(4) that provide up to 5000 permanent resident visas per year for religious workers other than ministers. Implementing regulations (8 CFR 204.5(m)(5)) define "religious occupation" as "an activity which relates to a traditional religious function." In deciding whether a choir director qualified, the court rejected the BCIS Administrative Appeal Office's determination that no part of a religious worker’s duties could be non-religious. The court remanded the case for the AAO to determine what quantum of religious duties must be present for the job to qualify. The court also rejected the AAO’s holding that a visa could be issued only if the church had traditionally employed a salaried full-time choir director, saying that the Bureau of Citizenship and Immigration Services was focusing unduly "on the labor history of the institution filing the petition as opposed to the type of work described…." [Thanks to Bob Ritter for the lead.]

UPDATE: As noted by a commenter, the religious worker regulations that are the subject of this decision have recently been amended. The amendments appear to resolve prospectively the issue left open by this decision. See this posting for details.

Many React To Anti-Religion Sign In State Capitol Display

As reported on Tuesday, the Freedom From Religion Foundation created a stir in Olympia, Washington when it took advantage of the state Capitol's open forum policy permitting any group to put up a display during the holiday season. FFRF put up a sign extolling the virtues of non-belief. Sometime overnight between Thursday and Friday, the 50-pound sign disappeared from the Capitol building, and then showed up at a local radio station where an unidentified man dropped it off. Meanwhile, other groups have applied to place displays in the Capitol, including a set of "Nativity balloons" from one applicant, and a "Festivus" pole (honoring a made-up holiday depicted by comedian Jerry Seinfeld) from another group. State troopers are now in the Capitol building guarding the display that remains—a Nativity scene. Presumably they will remain to guard other displays as well.

Bill O’Reilly on Fox News carried a segment (full text)on Tuesday night that was critical of the FFRF display. That led to the Governor’s office receiving over 200 calls per hour objecting to the sign. Governor Chris Gregoire and Attorney General Rob McKenna issued a statement defending the state’s non-discriminatory policy, saying that the state capitol "belongs to all citizens of Washington state." These developments are reported by CNN, KATU News and the AP. [Thanks to Scott Mange for the lead.]

7th Circuit En Banc Upholds Damages Against Muslim Groups For Financing Hamas

In Boim v. Holy Land Foundation for Relief and Development, (7 Cir., Dec. 3, 2008), in a 7-3 en banc decision, the 7th Circuit Court of Appeals held the American Muslim Society and the Quranic Literacy Society liable under 18 USC 2333. The statute, as interpreted by the court, permits the award of treble damages against those who donate funds to a terrorist group. The lawsuit was brought by parents of a Jewish teenager who, in 1996, was shot to death by members of Hamas in Israel. Finding no First Amendment problem even if a donor does not intend to further the illegal goals of an organization, the court said:

Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability. To require proof that the donor intended that his contribution be used for terrorism—to make a benign intent a defense— would as a practical matter eliminate donor liability except in cases in which the donor was foolish enough to admit his true intent.

The court also said that donors to terrorism should not be able to escape liability just because "terrorists and their supporters launder donations trough a chain of intermediate organizations." The court also rejected the 7th Circuit panel's conclusion that there was not sufficient evidence to find Hamas was responsible the teenager's death.

The court remanded for further trial the question of liability of the Holy Land Foundation, finding that the district court had wrongly applied the doctrine of collateral estoppel in holding it liable. The court reversed the judgment against an individual, Muhammad Salah, because his contributions pre-dated the effective date of a critical portion of the statutes under which the suit was brought. Judges Rovner, Williams and Wood dissented in two separate opinions. Bloomberg and IPT News both reported on the decision earlier this week. [Thanks to Jewish Delaware for the lead.]

Brookings Report Advises Obama On Continuation of Faith-Based Initiative

The Brookings Institution yesterday released a 58-page paper titled Serving People in Need, Safeguarding Religious Freedom: Recommendations for the New Administration on Partnerships with Faith-Based Organizations. Written by Brookings fellow E.J. Dionne, Jr. and Wake Forest Divinity School’s Melissa Rogers, the paper makes sixteen recommendations to the Obama administration for continuing, clarifying, modifying and strengthening President Bush’s Faith-Based and Community Initiative. The report recommends that the new administration ultimately create "a more durable policy regime" for partnering with religious groups so that the ground rules do not change from administration to administration. Brookings has separately posted the "List of Sources" that serve as endnotes to the report.

Russian Orthodox Patriarch Alexy II Dies

The International Herald Tribune reports that Russian Orthodox Patriarch Alexy II died today in Moscow at age 79. Heading the Church since 1990, Alexy presided over a restoration of the influence of the Orthodox Church in Russia. He maintained close ties with the Russian government and also often spoke out on moral issues. Alexy's relations with the Roman Catholic Church were often contentious. Pope Benedict XVI issued a statement of condolence. (International Herald Tribune.) The Jewish Telegraphic Agency eulogized Alexy, saying that he "became one of the first major religious Christian voices to call for an end to anti-Semitism in Russia." The Moscow Times speculates on Alexy's likely successor.

Times Ad Condemns Violence Against LDS Church For Its Prop 8 Support

A full-page ad titled "No Mob Veto" (full text) ran in today's New York Times. The ad condemns the "violence and intimidation" being directed at the Mormon Church by reason of its support of California's Proposition 8 that banned same-sex marriage. (See prior posting.) Coordinated by the Becket Fund, the ad is signed by thirteen prominent religious, academic and human rights leaders. The ad indicates that the signers have different views on the "wisdom and justice" of Proposition 8, but agree on their opposition to anti-religious bigotry and violence. Signers included individuals with Evangelical, Catholic and Jewish organizational affiliations.

In a press release on the ad, Interfaith Alliance President C. Welton Gaddy said: "I am pleased to see the newfound commitment of some of my friends on the right to fight against anti-religious bigotry and violence against houses of worship.... [However] I do wonder if the signers will be willing to spend tens-of-thousands of dollars along with their prestige the next time a primarily gay congregation’s legitimacy is called in to question, or a mosque is targeted for harassment." Towleroad blog has additional background on the ad.

Irish Broadcasting Commission Rejects Christmas Ads From Catholic Bishops

The Broadcasting Commission of Ireland (BCI) General Advertising Code, Sec. 9, as well as Section 10(e) of Ireland's Radio and Television Act of 1988 and Section 65 of the Broadcasting Act 2001, ban the broadcast in Ireland of ads "directed towards a religious end." In a press release issued yesterday, BCI said that applying this ban, it had rejected a number of scripts for a proposed Christmas advertising campaign by the organization Veritas which is owned by the Irish Catholic Bishops Conference. According to yesterday's Irish Times, the offending ad encouraged people to buy a Christmas gift that "means more."

NY Appellate Court: Civil Courts Can Require Inspection of Church Records

In Tae Hwa Yoon v New York Hahn Wolee Church, Inc., (NY App. Div., Nov. 25, 2008), a New York state appellate court reversed the dismissal of one claim in a lawsuit against a Yonkers (NY) church, its pastor and several of its trustees. Plaintiff, a member and former trustee of the church, alleged that defendants had diverted or misappropriated church funds. Invoking the New York Not-For-Profit Corporation Law, plaintiff sought to inspect the church's books and records, compel an accounting, enjoin defendants from accessing certain church funds and obtain a declaration that the election of the trustee who replaced him and the installation of a new pastor violated the church's bylaws. The trial court dismissed on the ground that the case could not be decided by the application of neutral principles of civil law.

The Appellate Division held that the claim for production of church books and records (N-PCL Sec. 621) could be decided without examining issues of religious doctrine. The Appellate Division upheld dismissal of the remainder of the claims, but on the ground that since they were asserting rights of the church, they needed to be brought as a derivative action and the special procedural requirements of such actions needed to be met. (N-PCL Sec. 623). [Thanks to J.J. Landa for the lead.]

Saudi Ministry Prepares For Hajj Pilgrims

The Hajj takes place in Saudi Arabia this year from Dec. 7 to 11. Only pilgrims with Hajj permits may participate. The Saudi Gazette today reports on arrangements that have been made by the Saudi Ministry of Islamic Affairs, Daw'a, and Guidance to handle the thousands who will take part. Over 800 religious guides and 180 interpreters have been stationed at pilgrim entry points and at holy sites. It has created a toll-free telephone number, and has set up 123 field centers in Mecca and Medina, to answer Hajj related questions. An area in Mecca has been converted into a spiritual center for sermons and instructions on performing the Hajj. The Saudi Project for Utilization of Sacrificial Animals will act as the agent of pilgrims in carrying out the slaughtering of animal offerings and the distribution of the meat in accordance with Shariah.

Tourist Council Treads Carefully In Funding for Christian Music Festival

A column in today's St. Petersburg (FL) Times discusses the state and federal constitutional issues that presented themselves last month as the Hernando County Tourist Development Council decided what kind of support it would give to the Brooksville Ministerial Association's annual summer Freedom Fest Christian music festival. As reported by the Nov. 25 issue of Hernando Today, originally the county agreed to give the Ministerial Association $5000 to help with promotion of the event. However, after questions were raised by the ADL and the ACLU, the Council decided that the funds, to be used to promote tourism, would go directly to vendors and advertisers, and not to the Association. Also, as reported by the Nov. 22 St. Petersburg Times, this year's festival slogan was changed from "God and Country" to the more secular "Family, Freedom and Country." Rev. Joe Santerelli, president of the Ministerial Association, however, says that they are still "going to proclaim the gospel of Jesus Christ at the event."

European Court of Human Rights Upholds French Limit on Head Scarves In Schools

In Dogru v. France, (ECHR, Dec. 4, 2008) [in English, Word.doc] and Kervanci v. France, (ECHR, Dec. 4, 2008) [in French, Word.doc], the European Court of Human Rights upheld French restrictions on Muslim girls wearing Islamic head scarves in their physical education classes. It found that the rule did not violate the girls' freedom of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. As summarized in the Court's press release on the cases:

[T]he purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to the requirements of secularism in state schools..... [N]ational authorities were obliged to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In the Court's view, that concern did indeed appear to have been answered by the French secular model.

In the applicants' cases the Court considered that the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable..... [T]he penalty of expulsion did not appear disproportionate.... [A]pplicants had been able to continue their schooling by correspondence classes. It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It was also clear that the decision complained of was based on those requirements and not on any objections to the applicants' religious beliefs.

Yesterday's Irish Times and Today's Zaman reported on the decision.

In Nicaragua, Sandinistas Use Religion To Keep Political Support

This week's Nica Times (published in Costa Rica) reports on events in Nicaragua as politicians used religion for political purposes before and after recent Nicaraguan municipal elections. Before the Nov. 9 elections, Sandinista President Daniel Ortega sought out evangelical Christian leaders, giving them land, quoting the Bible, dedicating a Bible Plaza in downtown Managua, and declaring a National Day to Honor the Bible. However, after claims of election fraud in last month's elections, the Catholic Church in particular is concerned with the government's use of religious symbols for political ends. After the election, Sandinistas clashed with demonstrators while wearing government T-shirts bearing religious messages such as "Love is stronger than hate." The Ortega government has also attempted to identify itself with religion by placing statues of the Virgin Mary in all the traffic roundabouts in Managua.

Civil Court May Decide Scope of Authority of Archdiocese Agent

In Favalora v. Sidaway, (FL Ct. App., Dec. 3, 2008), a Florida state appellate court rejected a First Amendment religious autonomy challenge to civil court jurisdiction in a suit against the Catholic Archdiocese of Miami. In the case, plaintiff alleged that the Archdiocese fraudulently induced him to settle a claim by promising reforms which it never planned to implement. Plaintiff also asserted that that the agent for the Archdiocese who entered the settlement lacked authority to bind the Archbishop or Archdiocese. The Archdiocese moved to dismiss, claiming that questions of its agent's delegated powers are matters of internal church governance. The court disagreed, holding: "The mere fact that this case may require inquiry into the applicable church law does not constitute 'excessive entanglement' under the First Amendment.... Nothing in this case suggests that the circuit court is poised to substitute its interpretations of church law for those of the religious organization...."

Complaint In Suit Challenging Kentucky Homeland Security Law Now Available

As reported previously, the American Atheists and ten individuals are suing to challenge provisions in Kentucky statutes creating the state's Office of Homeland Security. The statute requires the agency to stress dependence on God as a necessary part of homeland security, and requires it to install a plaque with specified language to that effect. The lawsuit was filed in a Kentucky state court on Tuesday. (NoGodBlog). The complaint (full text) describes the state law as being enacted in response to the 9-11 attacks on the United States "by religious fanatics in a faith-based initiative." It alleges that the statutes are violative of Section 5 of the Kentucky Constitution (Right of religious freedom), and the First Amendment as well as Article VI of the U.S. Constitution:

The challenged laws unlawfully attempt, inter alia, to establish religion, endorse belief over non-belief, set up a religious test, indoctrinate Kentucky citizens and state employees in theistic religious beliefs, and diminish the civil rights, privileges or capacities of Atheists and others who do not believe in a god, or who believe in a different god or gods than the presumed supernatural entity unconstitutionally endorsed by the legislation complained of herein.

The lawsuit seeks a declaratory judgment and damages.

Roundtable Releases 2008 Report: Legal Developments In Faith-Based Initiative

On Tuesday, the Roundtable on Religion and Social Welfare Policy announced the release of The State of the Law-- 2008, a report on legal developments affecting government partnerships with faith-based organizations. This is the seventh, and last, of the reports on the Bush Administration's Faith-Based and Community Initiative that have been written annually by Law Professors Ira C. Lupu and Robert W. Tuttle. The report's Executive Summary concludes:

Partnerships between government and faith-based organizations did not begin with the Administration of George W. Bush, but the past eight years have involved an intense effort to expand such partnerships into new shapes and programs, and those efforts have borne significant fruit. The rules governing relationships between the state and religious organizations have been refined and clarified in ways that could not have been predicted on January 20, 2001.... We very much doubt that faith-based organizations will ever again be categorically disqualified from partnering with government in delivering social services.

The Roundtable's website contains extensive additional information on the faith-based social services.

In Britain, Queen Announces Proposal To Create Single Equality Commission

In Britain yesterday, the Queen's speech to Parliament (full text) announced that the government would introduce legislation to create a single commission for equality and human rights. The proposal will consolidate nine existing anti-discrimination laws into one Equality Bill. In 2007, Britain's Ministry of Justice circulated a consultation document on this proposal. (See prior posting.) EPolitix and Pink News yesterday both discussed at greater length the provisions of the proposed new legislation. The British Humanist Association issued a release welcoming the announcement by the Queen, but urged that the law also address discrimination by religious organizations. It said: "Existing UK equality law gives religious groups power to discriminate against those who do not share their beliefs in both employment and service provision – even when they are receiving public funding – and this is one inequality that we look to the Government to address."

UPDATE: The Muslim Council of Britain on Thursday particularly welcomed the proposed provisions in the new Equality Bill that will require public bodies to consider how their spending decisions, employment practices, and service delivery can affect people according to their religion. Current law requires consideration of race, disability or gender; the new law would extend this to religion or belief, gender, age, sexual orientation and sexual reassignment. (Mathaba).