Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Wednesday, August 02, 2006
Christian Rock Band Loses Suit Against School That Canceled Concert
The court also rejected the band's claim that it was discriminated against because of its religious identity, in violation of the equal protection clause. The court said, "Where speech is government speech, the government is entitled to exercise control over its presentation... Defendants were entitled to discriminate against Plaintiffs because of their Christian religious identity precisely because the assembly audience might associate that identity with the School...." Moreover, the court said, avoiding a potential Establishment Clause violation is a compelling interest that overcomes any equal protection objection.
Here is the full text of Plaintiff's and Defendant's motions for summary judgment. Today's Toledo Blade covers the case, reporting that plaintiffs say they will take the case to the U.S. 6th Circuit Court of Appeals.
UPDATE: The full opinion is available online thanks to How Appealing.
Moderates Will Regain Control Of Kansas School Board
RLUIPA Claim and Constitutionality Upheld By 9th Circuit
Senate Passes Mt. Soledad Cross Bill Giving Title To U.S.
Former FLDS Member Sues Police Officers Allegedly Controlled By Church
Tuesday, August 01, 2006
ACLU, Fox News, and Religious Expression
Lawyers Ask India's Supreme Court To Change Temple Rules
Charges Dismissed Against Street Preacher In Kansas City
Christians In China Continue Battles With Authorities
Today a Reuters report carried in the Washington Post says that 3,000 Christians demonstrated against police in Hangzhou as authorities moved to tear down their newly-built church that had been constructed without official approval. Two people who were involved in the construction were arrested. The church was located in an industrial suburb where a commercial center was to be built. A local official said that the Christian group had been offered another nearby piece of land for their use. Today's New York Sun also covers the clash between police and church members, and presents a good deal of background information.
Sharia Law In Indonesia
Meanwhile in Jakarta, two of the five candidates for governor have promised that they will oppose any Sharia based laws in the capial city if they win next year's election. Today's Jakarta Post says that the 3 other candidates for governor did not participate in the debate where the statements were made.
Monday, July 31, 2006
How Churches Can Stumble Into Political Contributions That Violate the Tax Code
British Court Awards Damages to Permit Religious Observance
Texas City Says It Has Too Many Churches
Recent Law Review Articles
- William A. Wildhack III, Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection , 51 Naval Law Review 217 (2005).
- Jamie Darin Prenkert & Julie Manning Magid, A Hobson's Choice Model for Religious Accommodation , 43 American Business Law Journal, No. 3 (2006).
From SmartCILP:
- William B. Ewald, The Protestant Revolutions and Western Law (Reviewing Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition), 22 Constitutional Commentary 181-196 (2005).
- Christopher B. Harwood, Evaluating the Supreme Court's Establishment Clause Jurisprudence In the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 Missouri Law Review 317-366 (2006).
- Paul Heaton, Does Religion Really Reduce Crime?, 49 Journal of Law & Economics 147-172 (2006).
- Thomas M. Messner, Can Parachurch Organizations Hire and Fire On the Basis of Religion Without Violating Title VII?, 17 University of Florida Journal of Law & Public Policy 63-106 (2006).
- Elijah L. Milne, Blaine Amendments and Polygamy Laws: The Constitutionality of Anti-Polygamy Laws Targeting Religion, 28 Western New England Law Review 257-292 (2006).
- Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy, and Civil Liberties In Nineteenth Century America. 14 William & Mary Bill of Rights Journal 987-1022 (2006).
The Spring 2006 issue of the Journal of Church and State has recently been published.
Prisoner Free Exercise Decisions
In Davis v. Basting, 2006 U.S. Dist. LEXIS 50787 (WD KY, July 19, 2006), a Kentucky federal district court permitted a prisoner to move ahead with his claims that he should be permitted to receive a Halal diet and attend religious services and his claims of retaliation against him because of his religion.
Sunday, July 30, 2006
Debate In Evangelical Movement Over Political Ties
Chicago Area Church Challenges Zoning Exclusions
UPDATE: Here is a copy of the court's order prohibiting enforcement of the zoning ordinance for 30 days, from Alliance Defense Fund.
Religious Liberty In Asia, Europe Surveyed; Turkey Revises Teachers' Training
The complexities in parts of Europe are illustrated by a story out of Turkey earlier this week reported by AKI. Turkey's secular Higher Board of Education (YOK), which previously moved the training of public school religious teachers from the theology to education departments of universities, has now announced plans for curriculum revision. University programs training teachers to offer courses in religion in Turkey's primary schools will focus less on Islam. A number of courses on Islam have been removed and the time spent on Arabic language instruction has been reduced. In their place, required courses in philosophy, sociology, music, computers, Christianity and missionary activities have been added. Turkey's union of teachers has strongly criticized the changes.
Anti-Conversion Laws In India
Members of the U.S. Congress have also begun to take notice. On July 21, the Congressional Human Rights Caucus held a briefing on Anti-Conversion Legislation in India. One of the presenters (full text) was the The Becket Fund's Angela Wu.
Saturday, July 29, 2006
Free Exercise Challenge Planned In Ban On Feeding Homeless In Parks
Times Tells Of Incidents Behind Delaware School District Lawsuit
Ohio Issues New, Less Onerous, Draft Of Charity Reporting Rules
$36M Charitable Trust Not Available To Diocese Creditors In Bankruptcy
Courts Rule On Employment Claims Against Churches
In Redhead v. Conference of Seventh Day Adventists, 2006 U.S. Dist. LEXIS 51135 (ED NY, July 26, 2006), a New York federal district court held that the "ministerial exception" to Title VII employment discrimination claims does not apply to a teacher in a Seventh Day Adventist elementary school whose duties were primarily secular. The teacher's only religious functions were one hour of Bible instruction per day and attending religious services with students once per year.
A Texas state court of appeals has granted a motion for a rehearing and issued a new opinion in Patton v. Jones, (Tex. 3d Dist. Ct. App., July 28, 2006). In its earlier decision, the court held that the Free Exercise clause prohibited it from proceeding in connection with alleged defamatory communications made by a Church as part of its decision to end the employment of its Director of Youth Ministries. However, the court permitted the Director to proceed with defamation claims that arose out of statements made about him after the Church's decision on his dismissal was final. The revised opinion issued this week also dismisses the claims growing out of the post-termination statements.
China Denies Falun Gong Persecution Stories
The embassy’s statement said: "Falun Gong is an anti-science, anti-humanity and anti-society evil cult which has been banned in China in accordance with law. It uses religion … as camouflage to brainwash and control the practitioners. It preaches that human can, through psychological meditation, from invisible magic wheels inside their bodies, cure their illness without medical treatment. It spreads Dooms Day theory, [and] boasts that Li Hongzhi, founder of Falun Gong, is the most powerful God …."
Friday, July 28, 2006
Orthodox Church Opposes Liberalization Of Ukraine's Religion Law
Igumen Evstraty of the Kiev Patriarchate said that the country's current law is so liberal that: "[I]t's enough to gather ten people and announce whatever you want-even that they want to worship Winnie the Pooh-and they can't be denied registration." A spokesman for the Moscow Patriarchate even called for "non-traditional" faiths to be investigated to determine "whether they cut the throats of babies or exert pressure on the psyches of people." However, a government Department of Religious Affairs official said that every religion has the right to exist and that registration requirements should be the same for all groups.
9th Circuit Hears Arguments In High School Christian Bible Club Case
Belarus Dispute Over Taking Church For Economic Development
When Do Online Security Precautions Violate First Amendment?
Nun Loses In Seeking Canadian Refuge Under Legal Technicality
Georgia Supreme Court OKs Judicial Determination Of Church Membership List
In Malaysia: A Step Forward For Women and Backward For Free Speech
Meanwhile, Malaysia's National Fatwa Council has ruled that women may be appointed by State religious authorities as Syariah judges . However, according to the New Straits Times, the women judges will not be allowed to preside over hudud and qisas cases, i.e. those that deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Quran and the Sunnah. In Malaysia these offenses are found in the Syariah Criminal Code Enactment.
Thursday, July 27, 2006
Prisoner Free Exercise Cases Abound
Greene v. Solano County Jail, 2006 U.S. Dist. LEXIS 50380 (ED CA, July 24, 2006), involved a challenge to the policy at Solano's Claybank facility that precluded maximum security inmates from attending group religious services. A California federal district court agreed with prison authorities that security concerns adequately justified the policy and rejected plaintiff's claims based on the First Amendment, RLUIPA, the Equal Protection Clause and the Eighth Amendment.
In Ha'min v. Montgomery County Sheriffs, 2006 U.S. Dist. LEXIS 50448 (MD TN, July 21, 2006), a Tennessee federal district court judge dismissed the First Amendment claims of a Muslim prisoner who challenged a Tennessee jail's failure to provide regular Friday Muslim religious services and its failure to have copies of the Quran in the jail library while the library did have donated copies of the Bible.
UPDATE: Here is the earlier magistrate's recommendation in the case, 2006 U.S. Dist. LEXIS 73223.
Johnson v. Rees, 2006 U.S. Dist. LEXIS 50556 (ED KY, July 20, 2006) involved rejection by a Kentucky federal district court of a somewhat unusual prisoner Free Exercise and RLUIPA claim. Inmate Johnny Johnson alleged that he is a Jehovah's Witness whose religious faith requires him to "witness" and to distribute religious literature to others. Prison rules permit outside organizations, including the Jehovah's Witnesses, to donate religious literature to the prison's chapel where other inmates are free to take extra copies. But Johnson is not allowed to take that literature and distribute it elsewhere directly to other inmates. The court said that since Johnson can distribute the literature inside the chapel library, he is not totally prevented from engaging in the conduct his faith requires. Only time and place are circumscribed.
Dissent In Washington DOMA Case Argues Establishment Clause
What we ought not to address is marriage as the sacrament or religious rite--an area into which the State is not entitled to intrude at all and which is governed by articles of faith.... As succinctly put by amici ...: "To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment."... After all, we permit civil divorce though many religions prohibit it--why such fierce protection of marriage at its beginning but not its end?...
To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA....
[R]eligious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because "marriage was [ultimately] a state matter, not subject to . . . religious restrictions."... This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others' most intimate life decisions.... The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.
House Members With Opposing Views Have Dinner Over Church-State Issues
Rehearing Denied; Supplemental Opinion Issued In Notre Dame Funding Case
Greek Government To Build Athens' First Mosque
Report On Religious Liberty In The Americas
In the United States, the debate involving the conflict between two different ideas of the separation or distinction between religion and the state institutions is played out at the level of civil and individual rights.Other parts of the report were the subject of a prior posting.
The conflict between American society and the Islamic communities is no exception. The latter complain of attacks against their places of meeting and prayer. They pursue legal paths in their attempts to introduce Koranic law into the legal system as has happened in Canada.
Wednesday, July 26, 2006
Newdow Appeals "In God We Trust" Loss To 9th Circuit
House Bill Proposes Prison Goods and Services For Non-Profits, Including Churches
The legislation would authorize the Attorney General to establish a new FPI [Federal Prison Industries] program in federal prisons that, subject to appropriation of the necessary amounts, would produce goods to be donated to nonprofit organizations instead of being offered for purchase to the federal government. In addition, FPI would be authorized to contract with nonprofit organizations and certain public entities for the use of inmate labor to provide charitable services. The bill would authorize the appropriation of $12 million for fiscal year 2008 and $48 million over the 2008-2011 period for these programs.Section 10 of the bill permits programs to be created to furnish prison-made goods to non-profit or religious organizations that "provide goods or services to low-income individuals who would likely otherwise have difficulty purchasing such products or services in the commercial market." Eligible organizations can suggest programs to FPI.
Section 10 more generally permits any religious (or other non-profit) organization that qualifies under Sections 501(c)(3) or 501(d) of the Internal Revenue Code to contract with the Inmate Work Training Administrator to employ inmates at below minimum wage rates. While there are various restrictions insuring that inmates will only provide non-profit services, and that inmates will not be discriminated against on the basis of religion (or on the basis of race, sex, national origin, disability or political belief), nothing in the bill appears to preclude using inmates to perform services that have religious content.
The bill has been approved by the House Judiciary Committee and will move to the full House for a vote.
Cert. Filed In Maine School Voucher Case
Required DNA Sample Does Not Violate Free Exercise Clause
White House Faith-Based Conference In Austin
Liberia Reassures Muslims On Wearing Of Veil
More New Prisoner Cases
In Williams v. Bitner, (3d Cir., July 25, 2006), the Third Circuit Court of Appeals held that prison officials did not have qualified immunity in a claim for damages by a Muslim inmate who alleged that his First Amendment free exercise rights had been violated. Pennsylvania prison authorities had assigned Henry Williams to work as a cook in the prison kitchen. He was disciplined after he refused, on religious grounds, to help prepare a meal that contained pork.
In Scott v. Mecklenburg Correctional Center, 2006 U.S. Dist. LEXIS 49905 (WD Va., July 21, 2006), a Virginia state inmate challenged the prison's refusal to approve his participation in a Bible correspondence course in which he had previously enrolled. He also complained that he was not permitted to take his Bible into the recreation yard. A federal district court found that prison officials had a legitimate interest in restricting transient inmates' participation in long term correspondence courses. They also did not discriminate against plaintiff because no materials, secular or religious, are permitted in the recreation yard.
Native American Religious Concerns Cost Washington State $58M
Washington's Peninsula Daily News yesterday reported that a letter to the auditor investigating the closing down of the project from Allyson Brooks, head of the state Department of Archaeology & Historic Preservation, revealed the true motivation of state officials. She wrote: "the underlying issue . . . is how we incorporate cultural values and religious beliefs into our decision-making processes in a manner that is fair, sensitive, constitutional and still results in a complete project.''
Over 350 bodies of tribal members were reburied after construction began, but the Klallam tribe wanted the remains returned to the Tse-whit-zen site. They believe their ancestors are angry that their remains were removed. Tribal members put red ochre below their eyes when they visit the site to ward off ancestors' anger, and they ceremonially wash with water containing snowberries when they leave so they will not take their ancestor's anger home.
Tuesday, July 25, 2006
High School Coach Wins Right To Join His Team's Prayers
Promoters Of Baptist Affinity Fraud Convicted
Loud Speakers On Bulgarian Mosque Challenged
Jerusalem Gay Pride Parade Cancelled Because Of Security Concerns
9th Circuit Issues New Opinions Denying Asylum To Chinese Christian
Monday, July 24, 2006
Italian Case Challenging Existence of Jesus Reportedly To Be Heard By European Court of Human Rights
Public Schools Try To Accommodate Various Religious Holidays
Asatru In Prisons Poses Concerns
New Yorker Article Features Role Of Christian Right In Ohio's '06 Elections
Recent Law Review Articles
Babek Rod Khadem,The Doctrine of Separation in Classical Islamic Jurisprudence, 4 UCLA Journal of Islamic & Near Eastern Law 95-142 (2004-2005).
Jed Kroncke, Jed, Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law, 4 UCLA Journal of Islamic & Near Eastern Law 41-73 (2004-2005).
Caleb E. Mason, Faith, Harm, and Neutrality: Some Complexities of Free Exercise Law, 44 Duquesne University Law Review 225-273 (2006).
Symposium: Law and Religion, 8 University of Pennsylvania Journal of Constitutional Law 335-513 (2006):
- Howard Lesnick, The Consciousness of Religion and the Consciousness of Law, With Some Implications for Dialogue;
- Imad-ad-Dean Adman, American and Muslim Perspectives on Freedom of Religion;
- Marie A. Failinger, Against Idols: The Court As a Symbol-Making or Rhetorical Institution;
- Stephen M. Feldman, The Theory and Politics of First Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?
- Kent Greenawalt, Common Sense About Original and Subsequent Understanding of the Religion Clauses.
Sunday, July 23, 2006
Civil Rights Division Hiring Has Been Changing
The Globe found that the law schools from which new hires graduated has also changed. More Southern and Midwestern law schools are now represented. Previously new hires tended to be from "elite" eastern law schools. The average US News & World Report ranking for the law school attended by successful applicants hired in 2001 and 2002 was 34, while the average law school rank dropped to 44 for those hired after 2003.
Defenders of the new policy say first that it tends to balance the liberal bias of former hires. Second, they say that while many hires now do not have a background with civil rights organizations, they often clerked for federal judges where they obtained substantial constitutional law experience.
Indonesian Editor To Face Trial On Muhammad Cartoons
Washington Pharmacy Board Rethinking Proposed Rule
Officials' Motives Found Relevant To RLUIPA Claim
Arizona City Debates New Church Zoning Rules
Saturday, July 22, 2006
Funeral Protesters Challenge Missouri Ban
Rastafarian Prison Employee's Religion Claims Move Ahead
NJ Homeowner Seeks Religious Tenants-- May Violate Law
Fabrics, who says that his home contains two religious statues that weep holy tears, says that if after he makes his feelings clear, someone who does not believe in God insists on moving in, he will let them do so.
Opinion In Hollywood, FL. Synagogue Case Finding Zoning Regs Vague
The court ordered that Hollywood Community Synagogue be granted the special exception that it formerly had, conditioned only on certain specific conditions regarding soundproofing and trash. It ordered that the city promptly enact a new Special Exception ordinance for places of worship with narrow, objective and definite standards to guide city officials. Finally it ordered that the issue of damages be placed before a jury.
This Week's Prisoner Free Exercise Decisions
In Buchanan v. Burbury, 2006 U.S. Dist. LEXIS 48244 (ND Ohio, July 17, 2006), an Ohio federal district court granted a preliminary injunction in a RLUIPA case brought by an inmate who was an adherent of the Yahweh's New Covenant Assembly, a Sacred Name Sabbatarian faith group. The court ordered that plaintiff be provided with a kosher diet, he be excused from work on the Sabbath and his religion’s seven holy days, and that the group be given the opportunity to worship under the same requirements as other groups, which might require that it be removed from the prison’s Protestant catchment and placed into its own separate catchment.
Survey Of Religious Freedom In Africa
Friday, July 21, 2006
Hate Crimes Still In The News
Vodou Practitioner Gets Light Sentence
New Scholarly Articles Posted Online
Kathleen A. Brady, Religious Group Autonomy: Further Reflections About What Is At Stake (July 1, 2006).
From SSRN:
Richard W. Garnett IV, The Freedom of the Church , forthcoming in Journal of Catholic Social Thought, Vol. 4 (2007) .
Joel A. Nichols, Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion, forthcoming in Pepperdine Law Review, Vol 34 (2006). [Thanks to Legal Theory blog.]
Apparent New Mexican President May Bring Changes In Church-State Policy
Some Kosher Food Laws Problematic For Conservative Rabbis
Preliminary Injunction Denied In City Incentives For Baptist Convention
The city agreed to discount the price of its arena by $ 195,000, provide up to $100,000 for transportation costs, and provide $5,000 to feed hungry people in Baltimore at a pre-convention event involving representatives of the national convention. The court previously ordered that participants in the Feed the Hungry Event could not engage in religious solicitation or distribute religious materials as part of that city-funded event. With that safeguard in place, the court held that the incentives granted by Baltimore did not violate the Establishment Clause.
Interview With China's Religious Affairs Head
Thursday, July 20, 2006
Afghanistan To Re-Establish "Vice and Virtue" Department
Property Dispute Between New York Episcopal Parish and Diocese
Cert. Filed In California Sea Scouts Case
Article On Court-Stripping Legislation
Atheists Demand Apology For Army General's Remarks
Attorney Protests IRS Church Audit Procedures
Saudis Granted Waiver On Sanctions-- Progress On Religious Freedom Cited
These include policies designed to halt the dissemination of intolerant literature and extremist ideology, both within Saudi Arabia and around the world, to protect the right to private worship, and to curb harassment of religious practice. For example, the Saudi Government is conducting a comprehensive revision of textbooks and educational curricula to weed out disparaging remarks toward religious groups, a process that will be completed in one to two years. The Saudi Government is also retraining teachers and the religious police to ensure that the rights of Muslims and non-Muslims are protected and to promote tolerance and combat extremism. The Saudi Government has also created a Human Rights Commission to address the full range of human rights complaints.
First Amendment Does Not Require Accommodation Of Job Applicant's Beliefs
Wednesday, July 19, 2006
New Jersey Chief Justice Nixes Fugitive Safe Surrender Program
In Cleveland, fugitives were greeted by volunteers who handed out water and pretzels, while sheriff's deputies ran their names through computerized databases. Then they met with a judge and a public defender in the church's library, and generally released on bond. The New Jersey Supreme Court, however, is concerned about court procedures taking place in a religious facility. It is also concerned that it would appear that the court was working on behalf of the prosecutor and was not neutral. The court offered to have a judge available at the courthouse to process the fugitives, but U.S. Marshall James Plousis said that is inconsistent with the underlying concept of the program.
GAO Report Reviews Faith-Based Initiative
Titled Faith-Based and Community Initiative: Improvements in Monitoring Grantees and Measuring Performance Could Enhance Accountability, the full report has just been posted on the GAO's website. Here is part of the Report Abstract:
Since 2001, federal agencies have awarded over $500 million through new grant programs to provide training and technical assistance to faith-based and community organizations and to increase the participation of these organizations in providing federally funded social services.... Most of the agencies provided grantees with an explicit statement on the safeguard prohibiting the use of direct federal funds for inherently religious activities. If these activities are offered, they must be offered separately in time or location from services provided with direct federal funds and must be voluntary for the beneficiary. However, we found that Justice's regulation and guidance related to these activities is unclear for its correctional programs. We also found that only four programs provided a statement on the rights of program beneficiaries and only three provided information on permissible hiring by FBOs.
While officials in all 26 FBOs [Faith Based Organizations] that we visited said that they understood that federal funds cannot be used for inherently religious activities, a few FBOs described activities that appeared to violate this safeguard. Four of the 13 FBOs that provided voluntary religious activities did not separate in time or location some religious activities from federally funded program services....
[I]t is unclear whether the data reported on grants awarded to FBOs provide policymakers with a sound basis to assess the progress of agencies in meeting the initiative's long-term goal of greater participation of faith-based and community organizations. Moreover, little information is available to assess progress toward another long-term goal of improving participant outcomes because outcome-based evaluations for many pilot programs have not begun.