German Authorities Say Madonna Concert Might Violate Ban On Insulting Religion

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

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

Boise, Idaho 10 Commandments Initiative Can Proceed

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

House Homeland Security Chairman Endorses Religious Profiling

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

Jewish Groups Split Over Taking Federal Homeland Security Funds

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

Petition For Cert Filed In Establishment Clause Standing Case

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

Georgia Tech Changes Speech Code To Settle Suit By Conservative Students

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

California Proposal To Fund Mission Repair Formally Defeated In Committee

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

5th Circuit Finds Bible Display In Courthouse Monument Unconstitutional

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

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

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

Councilman Loses In Attempt To Offer Christian Prayers

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

School Board Will Defend Jesus Portrait

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

Family Sues On School Reassignment That Interferes With Religious Class

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

New Voter Registration Drive In Evangelical Churches

Today's Los Angeles Times reports that James Dobson's Focus on the Family is beginning a massive new voter registration drive through Christian evangelical churches. The program was announced in an e-mail to supporters last week. It is recruiting county and church coordinators in 8 states: Maryland, Montana, Tennessee, Michigan, Ohio, Pennsylvania, New Jersey and Minnesota. In Ohio, 3 million copies of voter registration instructions will be distributed in bulletins by 15,000 churches. Focus on the Family will also distribute voter guides detaiing candidates' views on issues such as same-sex marriage, abortion, and stem cell research. Critic Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says that Dobson is jeopardizing the tax exemption of churches that take part in this project. Organizers of the project, however, say that they are within the law so long as they merely register voters and discuss values, and do not endorse a specific candidate or party.

Yemen Court Finds Jihad Permissible

Yesterday's Wall Street Journal [subscription required] reported on a decision handed down last month by Yemeni Judge Mohammed al-Baadani who sits on the country's special terrorism court. He ruled that Yemeni law was not violated when 19 defendants traveled to Iraq to kill American soldiers and fight with al Queda. He said that the country's law, which includes elements of Sharia, was not violated because Islamic law permits jihad against occupiers of Muslim lands. The law only prohibits attacking U.S. or Western targets outside of occupied land. The judge has been surprised by the strong criticism of his decision by the U.S. embassy and by the judge's own family members who live in the United States. The judge says that a contrary ruling would have made martyrs of the defendants. Indeed it appears that prosecutors had not charged the defendants for their activity in Iraq, but only with plotting attacks against a Western hotel in Aden and against other Western targets-- and the prosecution showed no evidence to support these charges.

Developments In Navy Chaplain's Court Martial

More developments were reported yesterday in the upcoming court martial of Navy Chaplain Gordon J. Klingenschmitt (see prior posting) who is charged with disobeying an order by praying while in uniform at a press conference in front of the White House earlier this year. Agape Press reports that Klingenschmitt's attorneys are asking a military judge to dismiss the charges before the scheduled court martial proceedings on September 11. The Associated Press reports that Klingenschmitt's attorneys are also asking the court to turn over as evidence in the court martial thousands of pages of e-mails about how to handle Klingenschmitt that were sent to or from Rear Adm. Frederic R. Ruehe who is in charge of the Navy's Mid-Atlantic region. They seek to have Ruehe removed from having any authority over the case, claiming he is biased.

Indian Supreme Court Stays Law On Qualifications For Hindu Priests

According to The Hindu yesterday, the Supreme Court of India on Monday temporarily stayed enforcement of a new law enacted by the state of Tamil Nadu that provides for the appointment of archakas (priests) in Hindu temples without discrimination on the basis of caste or creed. (See prior posting.) Traditionally archakas were only Brahmins. A 3-judge panel of the court issued the stay in a suit charging that the new law violates Articles 25 and 26 of India's constitution. Challengers argue that those section guaranteeing freedom of religion are violated when the law permits appointment of archakas who do not have the qualifications required by the Agamas. The court gave the state 6 weeks to respond to the lawsuit.

President Signs Bill Transferring Mt. Soledad Cross To Feds

President Bush today signed H.R. 5683 that provides for Federal acquisition of the Mt. Soledad Veterans Memorial in San Diego, California. (White House Release.) The signing follows a federal district judge's decision on Friday to refuse a request that the President be enjoined from signing the bill. The Memorial, which is comprised mainly of a 43 foot cross, has been the subject of 17 years of litigation. That litigation promises to continue as District Judge Barry Moskowitz set the case for further argument next month once the federal government has taken title to the cross. Saturday's Voice of San Diego reports on these developments and the background leading up to them. (Also see prior posting.) The new law vests title to the property in the federal government immediately, but gives the parties a year to decide on the amount that should be paid to the city for the taking. Under the new law, the Mount Soledad Memorial Association that built and maintains the memorial will continue to maintain it. But its members are concerned about added complexity when they wish to add new plaques or hold ceremonies, once the memorial is federally owned.

No Establishment Clause Problem With Ban Of Prostitution Near Churches

Oklahoma law imposes enhanced sanctions on those who operate houses of prostitution within 1000 feet of a church or school. (21 Okl. Stat. Secs. 1028, 1031). In Maxwell v. State, 2006 Okla. Crim. App. LEXIS 34 (OK Ct. Crim. App., Aug. 8, 2006), the Oklahoma Court of Criminal Appeals rejected a defendant's claim that his conviction for maintaining a house of prostitution within 1,000 feet of a church violates the Establishment Clause. The court held that the term "church" in the statute applies also to other houses of worship such as synagogues or mosques. The court went on to hold that the statute has the secular legislative purpose of deterring prostitution-related activities in areas where families with young children and the elderly can reasonably be expected to gather. It also found that the primary effect of the statute is not the advancement of religion, nor does it foster excessive government entanglement with religion.

Challenge To Faith-Based Jail Program Moves Ahead

Moeller v. Bradford County, 2006 U.S. Dist. LEXIS 66613 (MD PA, Aug. 10, 2006), disposed of various preliminary motions in a case challenging the constitutionality of federal, state and local funding of a faith-based vocational training program in the Bradford County (PA) Correctional Facility. The program, operated by the Firm Foundation, is a prison ministry that requires its staff to adhere to Christian beliefs. The program is the only vocational training available to inmates and routinely includes proselytization. Government funds are not limited to the program's secular aspects. A Pennsylvania federal district court held that it will entertain jurisdiction over state constitutional claims for injunctive and declaratory relief. It also held that the plaintiffs' complaint was adequate to give notice of the claims to the defendants and that the complaint adequately states an Establishment Clause claim.

Recent Articles On Law, Religion and Religion Clauses

From SmartCILP:

• Bernard M. Levinson, The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers In Light of Deuteronomy, 27 Cardozo Law Review 1853-1888 (2006).
• Michael R. Marrus, A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs, 1945-1946, 27 Cardozo Law Review 1651-1665 (2006).

From SSRN:

• Eric Claeys, Justice Scalia and the Religion Clauses: A Comment on Professor Epps, (Washington University Journal of Law and Policy, Vol. 21, 2006).
• Frederick M. Lawrence, The Hate Crime Project and its Limitations: Evaluating the Societal Gains and Risk in Bias Crime Law Enforcement, (GWU Legal Studies Research Paper No. 216).

Investment Frauds Target Church Members

Affinity fraud-- investment schemes aimed at defrauding members of a particular church-- is on the rise. An AP article yesterday set out examples of church members being bilked out of millions of dollars. A typical approach is for a fraudster to first make a generous donation to the church, pulling in an implicit endorsement from the minister. Church members may be further enticed by the suggestion that they donate part of their investment earnings to the church. The SEC last year issued an Investor Alert warning about these kinds of schemes.

Arkansas Candidates On Intelligent Design

Today's Arkansas Democrat Gazette reports on views of candidates for statewide office in Arkansas on the issue of teaching intelligent design. Not surprisingly, views are mixed. Of particular interest are the views of Democratic nominee for governor, Mike Beebe. He says that he believes in intelligent design, and that information on it should be "available" to students. However he did not indicate whether he thought the theory should be a required part of the state's public school curriculum. He argued that availability "would provide Arkansas students background they need to wrestle with these and other fundamental questions as they become adults. I believe both should be available because one is the consensus theory of the scientific community, and the other is the predominant belief of most Arkansans and Americans."
Beebe did not say whether the theory should be a required part of the state’s curriculum.

By contrast, Democratic candidates for attorney general and lieutenant governor say the science curriculum should be left to science teachers, not politicians. AG candidate for Dustin McDaniel said: It's up to our churches and our families to explain exactly how the scientific parts of the universe are created by God. He added, "I’m not running to be the state’s science officer."

Republican candidate for lieutenant governor, Jim Holt, said teachers should have the option to teach about intelligent design. He called evolution "a fraud theory" and argued that keeping ID out of public schools is censorship.

UPDATE: On Monday, Democratic nominee for governor Mike Beebe clarified that while he believes information on intelligent design should be available to students, court rulings require that the theory be taught only in churches, faith organizations and private groups. (Arkansas Democrat Gazette, Aug. 15).

Atheist Family Files Civil Rights Claims Against School and Sheriff's Department

In Oklahoma, a federal civil rights suit has been filed on behalf of the Smalkowski family against the Hardesty, OK Public Schools and the Texas County Sheriff's Department. The suit alleges that daughter Nicole Smalkowski was forced from the Hardesty school basketball team for refusing to take part in reciting the Lord's Prayer after a game, and she was later suspended when her family complained. Subsequently Chester Smalkowski got into an altercation with the school principal over these events, was charged with assault and was acquitted. (See prior posting.) Smalkowski alleges that the District Attorney offered to drop charges if the family moved out of the county. (See prior posting.) American Atheists, whose national legal director is one of the attorneys representing the Smalkowskis, has issued a press release on the case.

Chinese Journalist Detained For Reporting On Protests Against Church Demolition

On Friday, the Committee to Protect Journalists issued a release protesting China's treatment of Hangzhou journalist Zan Aizong. Zan was charged with "disturbing public order" and placed under a seven-day administrative detention for writing about arrests and injuries involving thousands of Christians protesting the July 29 demolition of a church in Hangzhou. (See prior posting.) His articles were posted on web sites in China and overseas. Today's Taipei Times has further coverage of the journalist's arrest.

Christian Street Preacher's Civil Rights Claims Will Proceed To Trial

Marcavage v. City of Philadelphia, 2006 U.S. Dist. LEXIS 55643 (ED PA, Aug. 3, 2006), involves civil rights claims by Michael Anthony Marcavage, a devout Christian who believes that it is his "Biblical mandate" to educate people about "the sinful nature of our country." Marcavage engages in open-air preaching, distributing of Gospel literature, sidewalk ministering, and the displaying of signs opposing sexually oriented businesses, homosexuality and abortion. His activities have led to a series of encounters with police, including two arrests. A Pennsylvania federal district court refused to grant most of the motions by both plaintiff and defendants for summary judgment on Marcavage's free speech, free exercise of religion and equal protection claims, as well as certain other claims, finding that there are issues of fact as to whether Marcavage's activities threatened public safety and as to whether police reaction was based on the content of Marcavage's speech. The court did dismiss the claims against the city of Philadelphia that alleged failure to adequately train police and that city policy was to violate his rights.

NC Court Rejects Free Exercise Defense To Drug Charges

In State v. Carignan, (NC Ct. App., July 18, 2006), a North Carolina appellate court rejected arguments by Benjamin Carignan that his prosecution for possession of marijuana and of drug paraphernalia violated his constitutionally protected rights of free speech and religion. Carignan says that he is an ordained minister in the Universal Life Church and smokes marijuana for religious reasons as part of his adherence to the Hawaiian Cannabis Ministry. The court found that there had been no showing that the prosecution violated Carignan's free speech rights, and that neither state nor federal protections of religious freedom were violated by the prosecution.

North Korea's First Russian Orthodox Church

The Associated Press reports that North Korea's first Russian Orthodox Church held it inaugural mass on Sunday. Vice Premier Kwak Pom Gi and other government officials attended the service at Pyongyang's Trinity Church. Ho Il Jin, the chairman of the Korean Orthodox Church Committee, said rather cryptically that the North Korean government will "successfully manage and operate the church". The opening is expected to help relations between North Korea and Russia.

More Prisoner Free Exercise Cases

A number of prisoner free exercise decisions have recently become available. Some date back a few months. In all of them, inmates were unsuccessful in challenging prison or halfway house rules:

In Smith v. Ozmint, 2006 U.S. Dist. LEXIS 54852 (D SC, March 31, 2006), a South Carolina federal district court accepted a Magistrate Judge's recommendation that a preliminary injunction be denied in a RLUIPA challenge to prison grooming policies by a Rastafarian prisoner.

In Wren v. Johnson, 2006 U.S. Dist. LEXIS 54183 (SD TX, July 26, 2006), a Texas federal district court dismissed an action by a Native American prisoner who alleged that he was denied the opportunity to participate in sweat lodge and pipe ceremonies.

In Grigsby v. Sims, 2006 U.S. Dist. LEXIS 55599 (SD OH, Aug. 10, 2006), an Ohio federal district court dismissed an inmate's claim that his free exercise rights were violated when he was required to work on Sundays. The inmate failed to present evidence to support his claim that he is a practicing Christian who sincerely believes that Sunday should be observed as a day of rest. UPDATE: For the Magistrate Judge's report and recommendations in the case (adopted by the court), see 2006 U.S. Dist. LEXIS 59860 (SD OH, June 28, 2006).

In Roberts v. Ozmint, 2006 U.S. Dist. LEXIS 55486 (D SC, Aug. 7, 2006), a South Carolina federal district court rejected a Hebrew Israelite prisoner's claim that forced haircuts violate his free exercise rights.

In Hastings v. Marciulionis, 434 F. Supp. 2d 585 (D WI, June 6, 2006), a Wisconsin federal district court rejected an inmate's challenge to rules of a halfway house program that prevented him from leaving to attend religious services or a Pow Wow during his first 14 days in the program and which precluded him from possessing an eagle feather at the halfway house.

Court Does Not Stop City-Sponosored "Day of Faith"

In Jacksonville, Florida, a federal district judge Saturday morning refused to issue an injunction against Saturday's "Day of Faith" event sponsored by Mayor John Peyton, Sheriff John Rutherford and Jacksonville's city council. The sponsors invited the city's faith communities to take part in the rally to "take back our neighborhoods" after the city experienced a large increase in murders this year. The lawsuit claimed that it is a violation of the First Amendment for the city to sponsor a religious event on city property with city funds. News4Jax.com reported that the judge did not rule on the constitutional issue, finding instead that the parties were not given adequate notice of the suit. The suit was not filed until late Friday afternoon.

Religious Issues Dominate Murder Trial In Turkey

In Turkey on Friday the trial of Alparslan Arslan and eight accomplices began. Arslan is accused of the May 17 shooting in the Council of State, Turkey's highest administrative court, that wounded four judges and killed one. The shooting, according to Reuters, was prompted by Arslan’s anger over a ruling by the court that upheld denying promotion to a Muslim kindergarten teacher for wearing a headscarf outside of the classroom. (See prior posting.) The AP reports that during Friday’s trial, Arslan twice unsuccessfully attempted to escape from toe courtroom to attend Friday prayers. The first attempt came in the morning after the presiding judge refused to interrupt the proceedings so the defendant could go to pray. The second attempt came in the afternoon when Arslan heard the call for prayer from a nearby mosque.

"Ministerial Exception" Blocks 2 Title VII Race Cases

In Bogan v. Mississippi Conference of the United Methodist Church, 433 F. Supp. 2d 762 (SD MI, May 5, 2006), a Mississippi federal district court rejected a racial discrimination claim filed under Title VII by an African-American pastor who argued that he and other African-American pastors had not been promoted to higher paying church positions because of their race. They were offered positions only with churches that had majority African-American members, and which generally paid less than other churches. He also claimed that he was placed on administrative leave for absences from his parsonage while Caucasian pastors were not similarly penalized. However the court held that the "ministerial exception" to Title VII, rooted in first Amendment concerns, required it to dismiss the case. It also rejected plaintiff’s attempt to rely on the Religious Freedom Restoration Act.

In Ajabu v. St. James United Methodist Church, 2006 U.S. Dist. LEXIS 55014 (MD GA, Aug. 8, 2006), a Georgia federal district court relied on the ministerial exception to Title VII to dismiss a case brought by a black pastor who claimed that he was terminated as Associate Pastor of a white church for racial reasons, and that the church's claim of doctrinal differences was merely a pretext.

Controversy Over Sunday Use Of City Ball Fields

The Waterbury, CT Republican-American reported Wednesday on a decision taken last month by the Watertown (CT) Parks and Recreation Commission to reinstate a prior policy that precluded the granting of permits for Sunday morning use of the city’s athletic fields by sports teams. This had been the city’s policy until last March when the Commission, under pressure from youth sports organizations, voted to allow the recreation department to issue Sunday morning permits. After clergy and residents objected to the new policy, arguing that Sunday mornings should be reserved for religious services and quality family time, the Commission reinstated its old policy. That action, in turn, has led the state chapter of American Atheists to object. Its director, Dennis Paul Himes, wrote the Commission saying that he personally felt the well-being of families and upbringing of children would be improved "by spending time in practically any activity except going to church." He urged the Commission to let individuals decide for themselves what Sunday activities they prefer.

RI Auto Dealer Sunday Closing Law Upheld

In Lynch v. Autoplex, C.A., 2006 R.I. Super. LEXIS 98 (RI Super., July 25, 2006), a Rhode Island trial court held that the state's Sunday Motor Vehicle Law does not violate the Establishment Clause. The law (RIGL 31-5-19) requires auto dealerships to remained closed on Sundays.

US Muslims Object To Bush's Statement On Terror Arrests

In a statement in Green Bay, Wisconsin yesterday, President George W. Bush reacted to British arrests in an alleged terrorist airplane bombing plot, saying: "The recent arrests that our fellow citizens are now learning about are a stark reminder that this nation is at war with Islamic fascists who will use any means to destroy those of us who love freedom, to hurt our nation. " Reuters reports that leaders of Muslim advocacy groups in the United States strongly criticized the President's choice of language. Nihad Awad, executive director of the Council on American-Islamic Relations, said: "We believe this is an ill-advised term and we believe that it is counterproductive to associate Islam or Muslims with fascism. We ought to take advantage of these incidents to make sure that we do not start a religious war against Islam and Muslims."

Good News Clubs Win Again In 4th Circuit

Yesterday in Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, (4th Cir., Aug. 10, 2006), the U.S. 4th Circuit Court of Appeals again struck down the Montgomery County Maryland Public Schools' policy on approval of take-home flyers. The suit was brought by the Good News Clubs that wished to publicize their after-school Bible group meetings offered to elementary school students. In its second decision in the case, the court found that in a new policy adopted after an earlier one was struck down, the school system retained unfettered discretion in deciding which flyers could be sent home with children. Thus, even if the flyer policy involved merely a non-public forum, the unbridled discretion it gave to school officials violated free speech protections because it failed to assure that the policy would be administered in a viewpoint neutral manner. The Associated Press has a short article on the decision. [Thanks to Derek Gaubatz via Religionlaw for the information.]

Colorado Court Allows Church Challenge To Parking Limits

In Town of Foxfield v. Archdiocese of Denver, (Colo. Ct. App., Aug. 10, 2006), a Colorado appellate court considered challenges to an ordinance that restricted parking near the rectory of a Catholic parish. The rectory is used for housing, religious instruction, and gathering of parishioners, and the property also contains a small chapel. The court held that church activities affect interstate commerce sufficiently to make RLUIPA applicable. It also held that the parking ordinance's delegation of exclusive enforcement authority to citizens constituted governmental enforcement through individualized assessment under RLUIPA. The court held that the ordinance at issue was not exempt from Colorado's Freedom to Gather and Worship Act as a "general parking ordinance". Finally it held that the trial court should have applied strict scrutiny in assessing the constitutionality of the parking ordinance because it is not a neutral law of general applicability. There was evidence that it was specifically passed to target the rectory, and its enforceability only after the city receives written complaints from three neighbors creates the possibility of arbitrary enforcement. The decision is reported on by today's Rocky Mountain News. The Becket Fund provides background on the case.

Canadian Court Rejects Church's Tax Discrimination Claim

In Vancouver, a British Columbia judge has ruled against a Jehovah's Witnesses congregation that claimed it was being discriminated against when it was taxed on the property surrounding its church building. Wednesday's Globe and Mail reports that in 2003 municipalities in British Columbia were given new powers to tax property around a place of worship, while the church building itself remains exempt. The Jehovah's Witnesses congregation in Coquitlam is the only congregation, so far, to have to pay the new tax. The congregation that had been fully exempt from property taxes for 35 years had to build a new Kingdom Hall when some of its land was taken by the province to widen a road. Madam Justice Carol Ross ruled that the only burden created by the tax is indirect and not substantial. However, she sent the case back to the city for reconsideration because she ruled there was a lack of procedural fairness in the consideration of the Church's request for a tax exemption.

UN Official Assesses Religious Freedom In Maldives

The United Nations Special Rapporteur on Freedom of Religion, Asma Jahangir, on Wednesday completed a visit to the Maldives. She welcomed enactment of the country's new Law on the Human Rights Commission but said that it does not meet the requirements of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination because the law requires that all Commission members be Muslim. (All residents of the Maldives are Muslim.) (Minivan News.) She said that in her report to the U.N. Human Rights Council, she will recommend that Maldive prisons be more religiously sensitive to the spiritual and dietary needs of foreign prisoners. (U.N. Press Release; Jahanigir's Press Conference Statement). However, according to Minivan News, Maldives Justice Minister Mohamed Jameel strongly criticized the U.N. official's visit, saying: "I have been told that she is asking people why this is not allowed in Islam and why that is not allowed in Maldives. It's because of her attitude that I am condemning her visit. I condemn anyone who comes to Maldives under the shadow of human right activists while challenging the Islamic unity in Maldives. It doesn't matter even if it is the United Nations or any other organization."

Buddhist Temple Sues California City For Use Permit

In Garden Grove, California, Quan Am Temple, a Buddhist congregation, has sued under the First Amendment and RLUIPA to obtain permission to use a one-story building it bought two years ago as a house of worship. It also wants permission to then build a temple on the site that is zoned for office use. According to today's Los Angeles Times, the congregation has 15 monks and nuns, plus 250 to 600 congregants. The city's Planning Commission and City Council have rejected the congregation's request to use or build on the site for a temple, concerned about noise and traffic. Suing on behalf of the congregation, the ACLU of Southern California argues that the city has routinely allowed non-religious non-profits to locate in commercial areas. The congregation has even offered to voluntarily pay property taxes if it is allowed to build on the site.

Regulations Issued Under Serbia's New Religion Law

In Serbia on July 26, Religion Minister Milan Radulovic issued regulations implementing the country's recently enacted Religion Law. Forum18 says that the new regulations are inconsistent with provisions of the statute, raising from 75 to 100 the number of members a religious organization needs in order to be registered. The new regulations leave unclear what rights unregistered religious organizations will have.

History Of Witness Oaths

Reporting a story about a 20-year old art student convicted of graffiti vandalism, who was also held in criminal contempt for refusing to take the oath as a witness, today's Pittsburgh Post-Gazette carries an interesting article on the form of the oath that witnesses are required to take. Pennsylvania's oath calls for the potential witness to "swear by Almighty God, the Searcher of all hearts". The article reviews much of the history of oaths and objections to them over the years.

California Proposal To Fund Historic Missions Stalls

The Oakland County Register yesterday reported that a proposed amendment (SCA 32) to the California Constitution to permit state funds to be used for the upkeep of historic missions stalled in the legislature this week. Senate Judiciary Committee Chairman Joe Dunn has raised church-state questions about the provision of state money to institutions where religious services are frequently held. In February, California's attorney general issued an opinion stating that funding would violate the state's current constitution. (See prior posting.)

Coast Guard To Change Religious Head Covering Policy

The Associated Press reports today that the Coast Guard has finally decided to change its rule prohibiting religious head coverings. The new rules, which "have verbally gone into effect" but have yet to be formally adopted, permit head coverings that fit under a uniform hat or helmet. However, to be permissible the headwear cannot bear bright colors, writing, pictures or symbols. This will permit skullcaps, but will exclude Sikh turbans. Further background is in a prior posting.

University Of Wisconsin Refuses To Recognize Student KofC Group

The University of Wisconsin-Madison has refused to give formal recognition to the Knights of Columbus as a student organization. The University says that the Catholic men's organization violates university rules that prohibit student organizations from discriminating on the basis of religion, as well as a requirement that student organizations be student controlled. Today's Chicago Tribune says that the Alliance Defense fund has written the University demanding that it stop applying non-discrimination requirements to Christian student groups. The university says that its policies do not violate a 7th Circuit ruling last month granting a preliminary injunction forcing Southern Illinois University to recognize the Christian Legal Society.

UPDATE: The University of Wisconsin announced that it reached an agreement with the Knights of Columbus yesterday to create a student group open to all students that will be recognized by the University in time for the beginning of Fall semester.

UPDATE: On Thursday, the faculty adviser to the Knights of Columbus denied that an agreement had been reached with the University of Wisconsin.

UPDATE: Later on Thursday, the University apologized for its erroneous announcement of an agreeement with K of C. (Gazette Extra).

Court Rejects Free Exercise Defense To Child Support Order

A Washington state court of appeals this week in a child support case rejected a father's claim that as a church "missionary," he did not have an income and had taken a "vow of poverty" that precluded him from accepting paid employment. The court held that the state's child support laws are neutral laws of general applicability, and their enforcement does not violate the father's First Amendment's free exercise rights. The case is In re Didier, (Ct. App. Wash., Aug. 8, 2006).

City Gives Church Use Permit To Avoid Lawsuit

Antioch, California city council voted on Tuesday to grant a use permit to the congregation of La Palabra de Dios to move its church to a location within a planned arts and entertainment district. Today's Contra Costa Times says that council members agreed only reluctantly in order to avoid the cost of defending a federal lawsuit under RLUIPA that was threatened by church attorneys if the permit was refused. Lawyers for the church say the city was unfairly criticizing the congregation, arguing that the city's redevelopment plan for the area had not been successful.

Court Refuses To Dismiss Suit By Christian Schools Against UC

The Los Angeles Times reports that a California federal district court yesterday rejected the University of California's motion to dismiss the suit against them by Calvary Chapel Christian School of Murrieta, several of its students and an association of Christian schools. The suit alleges religious discrimination, as well as free speech and association claims, because the University refuses to recognize certain high school courses in science, English and history taught from a Christian religious perspective taken by college applicants. While the court agreed to dismiss claims against several university administrators in their individual capacities, it permitted plaintiffs to proceed with their First Amendment claims against the University. (See prior posting.)

En Banc Review To Be Sought In O'Hare Case

The Arlington, IL Daily Herald reports that trustees from both Bensenville and Elk Grove Village, Illinois on Tuesday decided to seek an en banc rehearing in the DC Circuit in Village of Bensenville v. Federal Aviation Commission. Earlier this week, the cities lost a bid to block the expansion of O'Hare Airport in a challenge under the Religious Freedom Restoration Act to the moving of a cemetery as part of the airport expansion. (See prior posting.)

New Jersey Supreme Court Expands Sexual Abuse Liability Of Charitable Organizations

In a 5-1 decision yesterday, the New Jersey Supreme Court in Hardwicke v. American Boychior School, (Aug. 8, 2006) held that New Jersey's Charitable Immunity Act only bars claims based on simple negligence, and not those based on intentional, reckless or grossly negligent conduct. The court went on to hold that under the state's Child Sexual Abuse Act that a boarding school can be a passive abuser standing in loco parentis in the household. It held that the state's relaxed statute of limitations in child abuse cases applies to common law as well as statutory claims, and that an employer can be held vicariously liable for child abuse by its employees. Jurist reports on the case.

State Judge Admonished For Infringing Muslim Woman's Rights

Washington state's Commission on Judicial Conduct has reprimanded Tacoma Municipal Court Judge David Ladenburg, who ejected a Muslim woman from his court room after she refused to remove her headscarf. Yesterday's Seattle Times reports that the Commission found Ladenburg created an appearance of bias by his actions, and issued an "admonishment" to him. Ladenburg subsequently apologized to the woman. (See prior posting.) The Commission's full opinion issued on Aug. 4 says that the evidence showed no actual bias or prejudice by Ladenburg, but instead merely a mistake of law about the individual's free exercise rights. It said: "A judge's honest but mistaken application of the law does not usually result in judicial discipline. Here, however, Respondent failed to consider settled law, which resulted in a courtroom practice that infringed upon constitutional rights and created an appearance of bias. Accordingly, Respondent's actions rise to the level of sanctionable conduct." In the disciplinary proceeding, Ladenburg agreed not retaliate against anyone involved in bringing charges against him. He also agreed not to repeat his conduct, to study the judicial conduct rules and to take a course on cultural competence.

Aso Proposes Turning Shrine Into Secular Memorial

In Tokyo today, Japan's Foreign Minister Taro Aso joined the rising number of voices that are calling for the country to transform the controversial Yasukuni Shrine into a secular entity sponsored by the government. MCT reports on a detailed series of steps proposed by Aso to eliminate the religious nature of the shrine. In recent years, a number of court cases have challenged as a violation of church-state separation visits by Japan's Prime Minister to the Shinto shrine. The shrine is also controversial because among the war dead it honors are Japanese war criminals. (See prior posting.)

2nd Circuit Hears Arguments In Church Anti-Gay Billboard Case

Agape Press reports that in New York today, the U.S. Second Circuit Court of Appeals is hearing arguments in Okwedy v. Molinari. The case involves a challenge to action taken by the president of the Borough of Staten Island who wrote a billboard company urging it to taken down an anti-gay billboard advertisement posted by Keyword Ministries church. The billboard carried four versions of a verse from the Bible, Leviticus 18:22. The King James Version reads: "Thou shalt not lie with mankind as with womankind. It is abomination". The billboard was signed: "I AM your Creator." The Center for Law and Policy represented the church in a suit alleging, among other things, violation of free speech rights. Initially the district court dismissed the suit, but the Second Circuit in a 2003 opinion reversed as to the free speech claims. On remand, the federal district court again dismissed the suit and the church again appealed, leading to today's arguments.

Church Groups Lack Standing To Challenge Lethal Injection

A Montana federal district court yesterday held that two religious groups, as well as the ACLU, lack standing to pursue a challenge to the execution of convicted murderer David Dawson. The Montana Association of Churches and the Montana Catholic Conference claim that lethal injection can be so painful as to amount to cruel and unusual punishment. Dawson himself wants his execution to go ahead. Today's Great Falls Tribune reports on the judge's order.

Finnish Court Finds Religious Male Circumcision Illegal

In Finland, according to yesterday's Helsingen Sanomat, a trial court judge has found a Muslim mother guilty of assault for having her four-year-old son circumcised. The case was brought after the boy's father complained that he had not been consulted. The court held that the procedure, even though performed by a physician, amounted to an assault and that not even a long religious tradition justifies not protecting the bodily inviolability of the boy. The same principle that outlaws female circumcision was seen by the court as applying to males as well. The trial court imposed no punishment on the mother as the case moves to the Court of Appeals.

Recent Prisoner Cases

In Bloch v. Samuels, 2006 U.S. Dist. LEXIS 53732 (SD TX, Aug. 3, 2006), a Texas federal district court rejected the claims of a former inmate at a federal halfway house who was denied permission to leave the premises to attend daily Roman Catholic Mass.

In Balawajder v. Texas Dep't of Criminal Justice Institutional Division, (TX Ct. App., July 31, 2006), a Texas state appeals court reversed a trial court and decided that issues of fact remain in claims by a Hare Krishna inmate brought under the Texas Religious Freedom Restoration Act. The court held that issues remain as to whether the Department has a compelling interest in prohibiting additional storage space for religious materials, even though it allows it for legal and educational materials, and whether the it has a compelling interest to prevent the administrative burden of reviewing prisoners' eligibility for additional storage space for religious materials.

In Henderson v. Berge, (7th Cir., Aug. 3, 2006), the 7th Circuit Court of Appeals rejected a Taoist prisoner's Establishment Clause claim based on a Wisconsin prison's providing a satellite television channel broadcasting Christian programming, but not ones providing programming for other religions.

New Head Of White House Faith-Based Office Appointed

Almost unnoticed last week, President George W. Bush appointed a new head of the White House Office of the Faith-Based and Community Initiatives. He is Jay Hein. The White House's Aug. 3 announcement of the appointment said:

Mr. Hein is the President of the Sagamore Institute for Policy Research, a national think tank he founded that specializes in community-based reforms. Mr. Hein also serves as Executive Vice President and CEO of the Foundation for American Renewal, which provides financial grants and other support to community-based organizations and educates the general public on effective compassion practices.

"Jay has long been a leading voice for compassionate conservatism and a champion of faith and community-based organizations. By joining my Administration, he will help ensure that these organizations receive a warm welcome as government's partner in serving our American neighbors in need," stated President Bush.

Mr. Hein previously was Executive Director of Civil Society Programs at the Hudson Institute. Earlier in his career, he served as a Welfare Reform Policy Assistant to the Governor of the State of Wisconsin...

One of the few papers covering the appointment of the Indiana resident was the Indianapolis Star which said that White House officials discovered Hein when, at the suggestion of former Indiana Senator Dan Coates, they went to Hein for suggestions about other candidates for the job.

Planned Katrina Memorial Creates Church-State Issues

Last year's Hurricane Katrina has been the source of many controversies, and now, according to yesterday's New Orleans Times-Picayune, another one is brewing. This time it is over the memorial to the storm's victims being planned in St. Bernard Parish. The monument, which was authorized by the Parish Council, will feature a cross bearing a likeness of the face of Jesus. Two parish officials are co-chairing the memorial committee-- on their private time. Importantly, the site chosen for the monument-- the banks of the Mississippi River Gulf Outlet, a public waterway-- will be private property since erosion has eliminated the government-owned land that previously comprised the waterway's banks. And the monument is being financed with private donations.

The ACLU of Louisiana has protested. Its July 28 open letter to St. Bernard Parish President Henry Rodriguez said that either building a religiously neutral monument or moving the monument to private property would be acceptable. However the Times-Picayune article suggests that now the ACLU is arguing that even if the memorial is placed on private property, there was sufficient government involvement in authorizing it to create Establishment Clause problems.

Cardinal Says Basic British Document Supports Anti-Catholic Attitudes

In Scotland, according to today's Times Online, Catholic Cardinal Keith O'Brien has called on the British government to repeal the 300-year-old Act of Settlement that prevents Roman Catholics or those who marry them from ascending to the throne. He said that this constitutional document still describes Catholicism as "the popish religion" and calls Catholics "papists". Recently there have been high profile attempts to eliminate ugly anti-Catholic chants that Glasgow Rangers Football Club fans enjoy. The Scottish Parliament has created a working group on religious hatred. But Cardinal O'Brien argues that the anti-Catholic provisions enshrined in British law support the kinds of attacks that Parliament and soccer clubs are trying to eradicate.

Kentucky Schools Rediscovering Old Statute

According to Saturday's Lexington (KY) Herald-Leader, schools in Kentucky are rediscovering an old Kentucky statute (KRS 158.190) that provides "no book or other publication of a sectarian, infidel or immoral character, or that reflects on any religious denomination, shall be used or distributed in any common school." It also prohibits schools from teaching "sectarian, infidel, or immoral doctrine." Schools are adding the prohibitions to their official policy manuals. According to the paper's report, Kentucky courts have ruled that despite the reference to "sectarian" publications, the ban does not apply to the Christian and Hebrew scriptures. This presumably refers to the 1905 Kentucky Court of Appeals decision in Hackett v. Brooksville Graded School District, 120 Ky. 608 [LEXIS link] that rejected a claim that the King James translation of the Bible was a sectarian book.

School Board Wants Private Funds To Defend Jesus Painting

The Harrison County, West Virginia school board has agreed to defend the painting of Jesus at Bridgeport High School only if it can find non-government sources for the $150,000 anticipated cost of litigation before the Board's next meeting on August 25. Friday's State Journal reports that school board member Mike Queen, acting as a private citizen, is heading up the fundraising effort. In June, Americans United brought suit to challenge the painting that has been hanging in the school for at least 30 years. (See prior posting.)

Malaysia Ruling On Jurisdiction In Mixed Family Law Issue

Malaysia's Civil High Court in Kuala Lumpur has handed down a decision resolving one of the complexities stemming from the vesting jurisdiction over Islamic family law issues in Syariah courts., but jurisdiction of non-Muslim family law matters in civil courts. (Background.) On Friday, Sun2Surf reported on the case in which a Civil High Court ruled that it has jurisdiction over a complex custody matter. Aishah Abdullah is the mother of two children born out of wedlock. After the children were born, Aishah converted to Islam, but did not have her children converted. Since neither of the children (nor their father) is Muslim, Syariah courts would not have jurisdiction over the custody claim.

RFRA Challenge To FAA Approval Of O'Hare Expansion Rejected

The D.C. Circuit Court of Appeals today, in a case based on the Religious Freedom Restoration Act, eliminated a major hurdle that had been in the way of the expansion of Chicago's O'Hare Airport. In Village of Bensenville v. Federal Aviation Commission, (DC Cir., Aug. 4, 2006), the court rejected a petition challenging the Federal Aviation Administration's approval of an airport layout plan-- a necessary step in obtaining federal funding. The approved plan involved relocating the remains of those buried in a nearby cemetery. Members of a church that owned the cemetery and descendents of those buried in it argued that moving the remains would substantially burden their religious exercise because of their belief in the physical resurrection of the bodies of Christian believers. Relying on RFRA, the challengers insisted that the FAA was required by RFRA to show that the plan they approved was the least restrictive means of meeting the government’s compelling interests in reducing airport delay and enhancing airport capacity.

In a 2-1 decision, the majority held that the expansion plan that will impact the cemetery was developed and will be implemented by the city of Chicago. RFRA applies only to the federal government, not to state and local government action. FAA approval does not turn the city's implementation into into federal action. Judge Griffith dissenting argued that FAA approval of a plan that it screened, studied, chose and modified is enough to require the FAA to comply with RFRA.

In addition, the court the court unanimously held that it lacked jurisdiction to consider a challenge to the FAA letter expressing a nonbinding intention to obligate federal funding for O'Hare's expansion because the letter was not a final order.

The Chicago Tribune covers the court's decision. It explains that additional litigation remains. A suit now before the U.S. 7th Circuit Court of Appeals, among other things, is challenging a 2003 Illinois law that specifically exempted the cemeteries involved from the state's Religious Freedom Restoration Act. (See prior posting.)

Wiccan Veteran's Widow Asks Americans United For Help

Roberta Stewart, whose husband was killed when the military helicopter he was in was shot down over Afghanistan, has now asked Americans United For Separation of Church and State to assist her in her long struggle to get the Department of Veterans Affairs to approve placing a Wiccan symbol on her husband's grave marker in a veteran's cemetery. The Reno(NV) Gazette-Journal today reports that AU assistant legal director Richard Katskee says this is a situation in which the government, which has approved emblems for 38 other religions, is playing favorites. AU will first try to resolve the issue by negotiations, but will file suit if that does not work. Veterans Administration spokesman Matthew Burns said that his department has merely "deferred a decision on this application until [it] completes its efforts to develop a uniform set of rules by which all applications can be considered." (See prior posting.)

More Anti-Conversion Legislation In India

The battle over anti-conversion laws in India goes on. Now the Chhattisgarh state legislature has voted to enact a law requiring official approval for any religious conversion. However, in order to facilitate the reconversion of Christians to Hinduism, the bill provides that "returning to one's forefather's religion or his original religion will not be treated as conversion." BBC News today reports that Christian groups are reacting strongly against the bill and hope to persuade the governor to refuse to sign it. (See prior related posting.)

Korean Evangelicals Sent Home From Afghanistan

The Middle East Times reports today that Afghanistan has begun to deport 600 South Korean Christians who had recently come to the country, out of fear for their safety. Their visit was sponsored by the Institute of Asian Culture and Development, and was undertaken despite warnings against it from the South Korean government. Afghan authorities claimed the group had come to attempt to convert Muslims to Christianity, and Muslim clerics had begun to speak out against them. South Korean Christians are known for aggressive evangelism in Muslim countries. Here is another report on the story from Radio Free Europe, emphasizing the group's denials that they were planning conversionary activities. They were trying to organize a "peace festival" that would include a medical conference and two soccer games.

Senate Hearings On Bill To Deny Attorneys' Fees In Establishment Clause Cases

On Wednesday, a subcommittee of the Senate Judiciary Committee held hearings on the Public Expressions of Religion Act, S.3696, a bill that would preclude the award of attorneys' fees in Establishment Clause cases. The Senate bill explicitly refers to a number of high profile kinds of cases as being among those covered. The language would assure that plaintiffs could not recover attorneys' fees in challenging the Mt. Soledad cross , "In God We Trust" on coins and currency, the Ten Commandments in federal buildings, and government chartering or aid to the Boy Scouts. Sen. Sam Brownback, who sponsored the bill, issued this release on the hearings. The American Legion testified in favor of the bill, while in a release, Americans United opposed its passage.

FLDS Member Gets Light Sentence In Polygamous Sex Charges

Court TV reports that on Wednesday, an Arizona judge sentenced polygamist Kelly Fischer to only 45 days in jail for having sexual relations with a teenager that he took as his third wife. He will also be on probation for 3 years and will be required to register as a sex offender. A member of the FLDS church that encourages polygamy, Fischer is the first of 7 to be tried for polygamous marriages to minors. The judge told Fischer that his religious beliefs do not justify his violating the law. The woman involved, now 21, refused to cooperate with the prosecution and supported Fisher.

Federal Court Hears Arguments On Sectarian City Council Prayer

In Richmond, Virginia on Thursday, a federal district judge heard arguments on summary judgment motions in a case in which a Fredericksburg City Council member is challenging Council policy that does not let him invoke the name of Jesus Christ when he offers an opening prayer at council meetings. The Associated Press reports that Judge James R. Spencer suggested he was not convinced by the First Amendment arguments raised by council member Hashmel Turner's lawyer. Judge Spencer told the lawyer that all of the case law was against him. (See prior posting.)

Recently Available Prisoner Free Exercise Cases

In Chambers v. Steed, 2006 U.S. Dist. LEXIS 52920 (D. Kan., July 25, 2006), a Kansas federal district court rejected a prisoner's claim that his rights were violated because his segregated confinement prevented him from attending Friday prayer services.

In Andreola v. Wisconsin, 2006 U.S. Dist LEXIS 52968 (ED Wis., July 19, 2006), a Wisconsin federal district court held that federal law precludes the award of compensatory damages in RLUIPA claims by prisoners alleging merely mental or emotional injury. However the court refused to grant defendants summary judgment on a punitive damages claim. The decision came in a long-running suit in which a prisoner alleged that he was denied a kosher diet while incarcerated. In Magistrate Judge P.A. v. Miami-Dade County, 2006 U.S. Dist. LEXIS 52595 (SD Fla., May 16, 2006), a Florida federal district court similarly held that, despite 42 USC 1997e(e), nominal and punitive damages may be recovered for free exercise violations, even though there are no physical injuries from the violations.

In Martinez v. Ortiz, 2006 U.S. Dist. LEXIS 52350 (D. Colo., July 31, 2006), a Colorado federal district court permitted a Native American prisoner to proceed with a claim for injunctive relief, but not for monetary relief, in his free exercise claim stemming from limitations placed on his religious practices.

In Madison v. Kilbourne, 2006 U.S. Dist. LEXIS 52994 (WD Va., July 18, 2006), a Virginia federal district court rejected an inmate's claims that he was denied his rights under the First Amendment and RLUIPA when on one day prison authorities denied him two kosher meals.

Officials Are Trying To Correct Tax Sale Of St. Louis Synagogue

In St. Louis, tax officials are in court today asking a judge to undo the sale at auction of a $4.5 million synagogue building-- Central Reform Congregation-- for $11,800. The problem arose because the synagogue owed a little over $4000 in back taxes on a house it had bought next door to the synagogue. The properties were combined on tax records because the synagogue failed to apply for a separate tax exemption for the synagogue building. So a dispute over taxes on the house subjected the entire property to a tax lien. Yesterday's St. Louis Post Dispatch gives details.

Pedophile Claims Free Exercise Protections

In Cleveland, Ohio yesterday, a man charged with sexually assaulting nine boys who have physical or mental disabilities argued in court that his activities were protected by the First Amendment's free exercise clause. According to the Associated Press, Phillip Distasio, who admits he is a pedophile, says he is the leader of a church called the Arcadian Field Ministries. He says having sex with children is a sacred ritual of his church. Distasio made the argument himself after his court-appointed lawyer refused to put forward a First Amendment defense.

Las Vegas Sued Over Ban On Feeding Homeless

In Las Vegas, Nevada yesterday, the ACLU of Nevada filed suit challenging an ordinance passed July 19 that prohibits "providing food or meals to the indigent for free or for a nominal fee" in any city park. The complaint alleges, according to the Associated Press, that the statute violates the First and 14th Amendments, including the rights to freedom of speech and free exercise of religion.

Canadian Muslim Claims Religious Right To Install Satellite Dish For Condo

In Halifax. Nova Scotia on Tuesday, a Human Rights Board of Inquiry held a hearing on a complaint by a Muslim condominium owner who claims religious discrimination because condo rules do not permit him to keep a satellite dish that he installed for religious reasons. Wednesday's Halifax Daily News reports that Ahmed Assal was told by the condo managers that he could not install a dish that picks up 18 Arabic channels from the Middle East. Assal wanted the satellite dish so he could to teach his three children about their religion, language, culture and traditions. One of the managers told him that satellite dishes were not permitted under the condominium bylaws and that a dish could damage the roof. After 21 months, Assal moved ahead and installed a dish on a tree in his backyard. He says that the condo board has granted exceptions to various rules for other owners. But the managers say those other owners, unlike Assal, made formal requests for rule waivers.

Pennsylvania Zoning Ordinance Challenged By Church

Liberty Counsel has filed a federal lawsuit on behalf of the Lighthouse Christian Center against the city of Titusville, Pennsylvania, challenging the city's zoning ordinances that exclude churches from commercial areas and only permit them in areas zoned residential. CNSNews.com reported yesterday that the lawsuit alleges that the "church-free" zoning rule violates the federal Religious Land Use and Institutionalized Persons Act.

Nigerian State Claims Sharia Legal System Is A Success

On Wednesday, the Nigerian paper This Day carried a long article on the success of the Sharia legal system that has been operating for seven years in the Nigerian state of Zamfara. Government officials claim the following achievements for the system: "Institutionalization of equity and justice in the conduct of government business, reduction of crime rate at all levels of society, greater respect for human rights and the entrenchment of such rights, greater awareness of Islamic teachings and practices by the citizens of the state, ... [and] the curtailing of alcoholism and prostitution which led to the closure of 2, 800 brothels and beer palours. Similarly, cinema houses were outlawed and were subsequently purchased from the owners and converted to offices or learning centres." Also fears that non-Muslims would disinvest did not materialize.

Christian Rock Band Loses Suit Against School That Canceled Concert

In a case decided Tuesday by a federal district judge in Toledo, Ohio, the court rejected First Amendment and Equal Protection claims by a Christian rock band whose planned concert at Rossford (Ohio) High School was cancelled out of concern that it might violate the Establishment Clause. In Golden v. Rossford Exempted Village School District, Case 3:05-cv-7052 (ND Ohio, July 31, 2006), the court held that "a student assembly, held during school hours, with only one musical performer approved by the Principal, bears the imprimatur of the School." Therefore, it said, the school was entitled to exercise editorial control over the performance. Cases involving requirements of viewpoint neutrality, the court said, do not apply where the state creates no forum for speech.

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

The Kansas City Star reports that in yesterday's Kansas State Board of Education primary election, it appears that two moderate Republicans who favor teaching a conventional science curriculum have defeated two current conservative board members who favor teaching of intelligent design. Five board seats were at issue. In the other three races, incumbents (2 conservative Republicans and one moderate Democrat) held onto their seats. These results assure that moderates will win a majority on the Board in the November general election. Last year by a 6-4 vote, the conservative majority on the Board adopted science standards that favor teaching approaches that are critical of evolution. Here are the official results from the Kansas Secretary of State's office.

RLUIPA Claim and Constitutionality Upheld By 9th Circuit

Yesterday in Guru Nanak Sikh Society of Yuba City v. County of Sutter, (9th Cir., Aug. 1, 2006), the U.S. 9th Circuit Court of Appeals ordered Sutter County, California to issue a Sikh temple a conditional use permit to permit the construction of a temple on a parcel of land zoned as "agricultural". The county had denied permits twice, under conditions that significantly lessened the prospect that the group would be able to find any acceptable location. The court found that the county thereby imposed a substantial burden on Guru Nanak's exercise of religion in violation of RLUIPA. The Court also held that RLUIPA's religious land use provisions are a constitutional exercise of Congress' powers to enforce the 14th Amendment, saying "RLUIPA is a congruent and proportional response to free exercise violations because it targets only regulations that are susceptible, and have been shown, to violate individuals’ religious exercise." Today's Marysville-Yuba City Appeal Democrat covers the decision. [Thanks to Anthony Picarello via Religionlaw listserv for the information.]

Senate Passes Mt. Soledad Cross Bill Giving Title To U.S.

By unanimous consent on Tuesday, the U.S. Senate approved the bill-- previously passed by the House-- to transfer to federal control the land on which the Mount Soledad war memorial cross stands. Yesterday's San Diego Union-Tribune reports on the Senate's quick action, and says that President Bush is expected to sign the law. Under the bill, the Department of Defense will manage the monument and the private Mount Soledad Memorial Association will continue to maintain it. Federal courts have ordered the cross removed, finding that it violates California's constitution. Proponents argue that the federal government has greater leeway. And while a federal court has found the cross to be a violation of the California Constitution and a state court has held that it would be a violation of the California Constitution for San Diego to transfer the cross to the United States, this new bill has the United States take title without the city taking any action to transfer it. Last month, U.S. Supreme Court Justice Anthony Kennedy issued a stay of the lower federal court's order to remove the cross, pending final adjudication of pending appeals. [CORRECTED]

Former FLDS Member Sues Police Officers Allegedly Controlled By Church

In Salt Lake City, Utah federal court, Andrew Chatwin, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, has filed a civil rights suit against three police officers from the twin cities of Hildale, Utah- Colorado City, Arizona. Details of the suit were reported yesterday by the Associated Press. Chatwin built his home in Hildale in 1992, but when he left the FLDS church, he turned it over to his father. Chatwin then tried twice to move back, but was blocked by police or family members who said they were acting on orders from former church leader Warren Jeffs. Chatwin argues that the cities' governments are under control of the church. Property and homes in the cities have been the community property of the church's United Effort Plan Trust. Church elders assigned vacant lots to FLDS men who then built their homes on them, but were not given deeds. Church leaders have also traditionally ordered families in and out of homes based on their obedience to church tenets, which include the practice of polygamy. Chatwin wants the court to award him damages and the deed to his house.

ACLU, Fox News, and Religious Expression

There is an interesting video posted on YouTube that critiques coverage of the ACLU by Fox News' Bill O'Reilly. The video contrasts O'Reilly's statements criticizing the ACLU for supposedly opposing all religious expression on public property with O'Reilly's statements equally criticizing the ACLU for defending expression by Fred Phelps' Westboro Baptist Church group that is picketing veterans' funerals. The video is titled Fox News Forgets ACLU Story Contradicts Fox Falsehood. [Thanks to Allen Asch via Religionlaw listserv for the information.]

Lawyers Ask India's Supreme Court To Change Temple Rules

In India, the Indian Young Lawyers Association (IYLA) and a group of women lawyers have filed a petition in the Supreme Court asking for it to order the government of Kerala and the head priest Tantri of Sabari Mala temple to permit women to freely enter the shrine. United News of India reported on Sunday on the lawsuit that was triggered by a controversy after film actress Jayimala said she had entered the temple and touched the deity. (See prior posting.) The Supreme Court petition claims that current restrictions on women between the ages of 10-50 entering the temple violate Articles 14, 15, 25 and 51A (e) of India's Constitution.

Charges Dismissed Against Street Preacher In Kansas City

In Kansas City, Kansas, officials have decided to drop criminal trespass charges of against Michael Wheeler who was arrested for preaching about his Christian beliefs and praying on a public sidewalk near the University of Kansas Medical Center. After being issued a warning, Wheeler was ticketed and spent 6 hours in jail. An Alliance Defense Fund release discusses the case and links to a copy of Wheeler's motion in Kansas City Municipal Court to dismiss the charges against him on First Amendment grounds.

Christians In China Continue Battles With Authorities

A number of reports are coming out of China regarding restrictions on Christian worship. Last week, Christian Newswire reported that on July 25, four well-known House Church Leaders in Sichuan were formally sentenced to 2 years "re-education through Labor". Also a number of actions have been taken against house churches in Wendeng City, including the arrest of worshippers.

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

Today's New York Times reports at some length on the administration of Sharia law in the Indonesian province of Aceh, the first province to adopt Islamic law as its civil law. Special Sharia courts to impose punishment such as caning have been operating for a year in Aceh. Now some of the other provinces in Indonesia are beginning to look to Aceh as an example. This threatens to change the traditional rather liberal interpretation of Islam that has prevailed 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.

How Churches Can Stumble Into Political Contributions That Violate the Tax Code

On July 19, Americans United for Separation of Church and State wrote to IRS officials asking them to investigate the Calvary Temple Church in Kerrville, Texas. (AU Release). Texas Ethics Commission reports disclosed that the congregation donated $1,000 to the Kerr County Republican Party on May 12, 2005, and $250 in 2003 and 2004. Last Friday, BNA's Daily Report For Executives [subscription required] interviewed the church's pastor, Del Way, who said that he had not intended to support a Republican Party candidate when he paid for an advertisement for "Golf Classics", a golf tournament sponsored by the local Republican Party. He said that the church also sponsors other community events, and several parishioners asked him to sponsor the golf tournament. Church officials saw it as a way of giving the church visibility. The problem was not caught by the church's outside auditor because the check was made out to the tournament, not to the Republican party. Americans United Executive Director Barry Lynn told BNA: "If you know it's a Republican entity and the purpose of the tournament is to raise money to elect Republicans, how can you not know what the money is going for?" Pastor Wey has asked the Kerr County Republican Party to return the funds.

British Court Awards Damages to Permit Religious Observance

A British court has awarded damages to the family of a Muslim woman in a persistent vegetative state for home care instead of nursing home care so that she can be provided with the religious regimen that she would have wanted. Today's Telegraph reports that even though it costs 70% more, this award by the London High Court will permit her devout family to share daily prayers and reciting of the Koran with her without having to travel extensive distances to visit her.

Texas City Says It Has Too Many Churches

Stafford, Texas has 51 tax exempt churches and religious institutions in its seven square mile boundaries. With no property tax, the city depends on business fees and sale taxes for revenues that churches do not produce. Today's Los Angeles Times reports that the city is looking for ways to keep more churches out of its remaining 300 undeveloped acres. Most who attend churches in Stafford live in Houston and elsewhere outside the city. Until an ordinance was passed in 2003, there was virtually no review of applications to build churches. City Councilman Cecil Willis said that when he asked the last 15 churches that located in Stafford why they chose the location, they replied that they had prayed about it and God told them to located there.

Recent Law Review Articles

From SSRN:

• 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 Scible v. Miller, 2006 U.S. Dist. LEXIS 51002 (ND WV, July 25, 2006), a West Virginia federal court rejected a Rastafarian prisoner's complaint that prison grooming policies requiring hem to cut his hair violated his rights to free exercise of religion.

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.