Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Saturday, October 21, 2006
Recent Articles of Interest In Law and Religion
David A. Skeel, Jr., The Unbearable Lightness of Christian Legal Scholarship, (Aug. 2, 2006).
From SSRN:
Kathleen Boozang, Divining a Patient's Religious Beliefs in Treatment Termination Decision-Making, (Sept. 28, 2006).
Alan E. Brownstein, Taking Free Exercise Rights Seriously, (Sept. 21, 2006).
From SmartCILP:
Jim Wedeking, Quaker State: Pennsylvania's Guide to Reducing the Friction for Religious Outsiders Under the Establishment Clause. 2 New York University Journal of Law & Liberty 28-85 (2006).
Friday, October 20, 2006
Wisconsin Diocese Charged With Election Violations
Evangelist's Tax Evasion Trial Continues
Times Series On Religious Exemptions Continues, As Does Comment On It
The Times series has led to an unusual amount of editorial comment, both pro and con. The Times itself ran an editorial last Monday that argued "the wall between church and state is being replaced by a platform that raises religious organizations to a higher legal plane than their secular counterparts." However, yesterday the Weekly Standard carried an article by John DiIulio, Jr., first director of the White House Office of Faith-Based and Community Initiatives, strongly critical of the New York Times series. [Thanks to Steven H. Sholk for the lead to the Weekly Standard.]
Chicago Suburb Sued Over Design Of Vehicle Stickers
New York High Court Upholds Women's Health Act Under New State Constitutional Test
The court held that a First Amendment free exercise challenge failed under the Smith test, since this was a neutral law of general applicability. The fact that it exempts a narrow group of religious institutions from its coverage does not make it non-neutral. The more important part of the decision was the court's creation of a new test for free exercise of religion claims under Art. I, Sec. 3 of the New York constitution-- a test that is more protective of religion than the U.S. Supreme Court's Smith decision, but less protective than a "strict scrutiny" rule.
The court held that when general legislation creates an incidental burden on the free exercise of religion, "substantial deference is due the Legislature, and ... the party claiming an exemption bears the burden of showing that the challenged legislation, as applied to that party, is an unreasonable interference with religious freedom." In the court's view, plaintiffs here failed to show that the WHWA imposed an unreasonable interference. The state has a substantial interest in providing women with health care and institutions could ultimately avoid violating their religious principles by not offering prescription drug coverage at all. The court said that it would be a more difficult case if these institutions only hired employees who shared their views on the sinfulness of contraception.
Today's New York Law Journal carries an extensive analysis of the case.
Canadian Marriage Commissioner Appeals Gay-Marriage Requirement
Missouri School Board Asked To Reinstitute "Christmas" Break
Thursday, October 19, 2006
IRS Complaint Filed Against Church For Pastor's Political Endorsement
New York Court of Claims Lacks Jurisdiction Over RLUIPA Cases
European Court OKs Turkish School's Required Photo Without Headscarf
Christian Agency Entitled To Hire On Basis of Religion Under Title VII
Politician Promises Restoring Of Land To Bulgarian Orthodox Church
DC Circuit Upholds Terrorist Designation Of Jewish Website
Muslim Scholars Write Pope On His Regensburg Speech
Wednesday, October 18, 2006
Air Force Changes Chaplain Guidelines As Mandated By Congress
However, according to the same report by Jews On First, Mikey Weinstein, president of the Military Religious Freedom Foundation, charges that "Air Force leadership went about issuing these [new] guidelines in a subversive manner, without engaging in an open dialogue about the proper role of religion and chaplains within the Air Force."
Limitations Issues In Priest Abuse Case Decided
Minneapolis Bus Driver Can Avoid Busses With Offensive Ad
Rabbis Seek Move To Jewish Religious Courts For Civil Cases In Israel
California Courts Hear Arguments Over Cross and Constitution
Meanwhile, in a state appellate court in San Diego, oral arguments were being held on one aspect of the long-running dispute over the Mt. Soledad cross. The San Diego Union Tribune today reports that the "lively" two-hour oral argument focused on a 2005 trial court ruling that Proposition A-- a voter initiative transferring land under the Mt. Soledad cross to the federal government-- was unconstitutional. The lower court had found that the voters had intended to aid religion in violation of California's constitutional provisions prohibiting such aid or favoritism.
Indiana Released Time Program Challenged
Requiring Midwifery License Might Violate Religious Freedom
UPDATE: Saturday's Manatee Herald reported that trial judge Edward Nicholas has refused to grant release to the McGlades, despite the appellate court ruling. Nicholas on Thursday refused to permit the women to post bond because he believes that they would likely continue their illegal activity if released. Defense attorney Colleen Glenn filed an emergency motion with the appellate court on Friday to reverse the denial. Saturday's Sarasota Herald Tribune has more background on the case. The woman whose childbirth was aided by the McGlades was a relative. The McGlades believe that the licensing law was not meant to apply to that kind of situation.
Recent Prisoner Cases On Religious Rights
In Jesus Christ Prison Ministry v. California Department of Corrections, 2006 U.S. Dist. LEXIS 73813 (ED CA, Sept. 28, 2006), a federal magistrate judge ruled that a California prison’s policy of permitting religious literature, audio tapes and CDs only from approved vendors violates the free speech and free exercise rights, as well as rights under RLUIPA, of prisoners, as well as the rights of non-approved organizations wishing to distribute religious literature.
In Long v. Boehnemann, 2006 U.S. Dist. LEXIS 74532 (SD TX, Oct. 12, 2006), a Texas federal district court dismissed a suit alleging that a county jail’s kitchen manager denied plaintiff reasonable provisions during Ramadan. The court found that plaintiff had failed to exhaust his administrative remedies, that his transfer made his claims for injunctive relief moot, that federal law bars monetary damages absent a physical injury, that no First Amendment violation was shown, and that RLUIPA allows recovery only against governmental entities.
In Tayr v. Wisconsin Department of Corrections, 2006 U.S. Dist. LEXIS 74835 (ED WI, Sept. 29, 2006), a Wisconsin federal district court rejected a Muslim prisoner's claims that he was denied the right to use his religious name and was denied a religious diet, in violation of the First Amendment and RLUIPA. The court permitted claims relating to the denial of the use of religious property to move ahead.
Tuesday, October 17, 2006
Court Invalidates Eagle Protection Act Implementation As RFRA Violation
The BGEPA provides for a permitting process for the taking of eagles for Native American religious purposes. The government, however, discourages requests for permits and issues almost none. The court held that the government failed to demonstrate that this policy is the least restrictive means of advancing its interest in preserving eagle populations and protecting Native American culture, particularly in light of the recent recovery of the species. It concluded:
Although the Government professes respect and accommodation of the religious practices of Native Americans, its actions show callous indifference to such practices. It is clear to this Court that the Government has no intention of accommodating the religious beliefs of Native Americans except on its own terms and in its own good time.The court also upheld Friday's standing to challenge the futile permitting process even though he never applied for a permit.
The full text of the case is available through PACER. The Jackson Hole (WY) Star Tribune today reported on the court's decision. (Also see prior related posting.)
UPDATE: The decision is now available on LEXIS at 2006 U.S. Dist. LEXIS 74970.
Virginia Ballot Will Have Proposal To Permit Churches To Incorporate
House of Lords To Consider Removing Christian Prayer In Schools Requirement
FBI Hate Crimes Stats For 2005 Released
7th Circuit Rejects RLUIPA Challenge To Forced Feeding
Alaska Supreme Court Decides Church Property Dispute
City's Public Access Channel Pulls Religious-Political Videos
Illinois Bishops Issue Statement On Conscience and Voting
Catholics should always vote for that person most committed to being a public servant dedicated to the common good. ...[A]ny candidate who supports a public policy where part of humanity (such as the pre-born, the elderly, the handicapped, or the sick) is excluded from the protection of law and treated as if they were non-persons is gravely deficient in his or her view of the requirements of a just society.
Too often, the choice of candidates for elected office falls short of a vision of the common good as rich and full as Catholic social teaching. This may be discouraging, so we call on Catholics who understand and accept the Church’s teaching to become more engaged in political life.... In Illinois, we make up almost one-third of the population.... For Catholics, voting ought not to be seen as just an option or a privilege but a duty. By voting with an informed conscience, a renewed "Catholic vote" could become a political force for justice....
Monday, October 16, 2006
Cert. Denied In Scouts' Suit Against Berkeley Non-Discrimination Policy
Ballot Measure On Alcohol Sales Raises Church-State Issues
Cert. Petition Filed In Polygamy Case
New Zealand Will Penalize Excessive Political Activity By Churches
Sunnis In Iraq Want Separate Islamic State
UPDATE: The full text of the statement published this morning indicates that the Mujahideen Shura Council actually declared the establishment of an Islamic state in parts of Iraq. (Kavkaz Center).
Recent Articles Of Interest
Johnny Rex Buckles, The Constitutionality of the Monkey Wrench: Exploring the Case for Intelligent Design, forthcoming in Oklahoma Law Review, Vol. 59, 2006.
From SmartCILP:
Richard W. Garnett, Religion, Division, and the First Amendment, 94 Georgetown Law Journal 1667-1724 (2006).
Marianna Moss, How Are Reasonable Children Coerced? The Difficulty of Applying the Establishment Clause to Minors, 10 UC Davis Journal of Juvenile Law & Policy 379-428 (2006).
Sunday, October 15, 2006
Interesting Employment Discrimination Cases From Britain
Meanwhile, in London, a Catholic chef who was fired for refusing to work on Sunday won his claim for employment discrimination before an employment tribunal, according to a report today in This Is Local London.
But a Muslim teaching assistant at Headfield Church of England Junior School in West Yorkshire was removed by the Kirklees local educational council after she refused to remove her veil during lessons aimed at helping bilingual students improve their communication skills. Pupils-- many from families of Pakistani or Indian origin who are still learning to speak English--were finding it difficult to understand the teacher when she was wearing her veil. A report from the Times, carried today by The Peninsula, says that leading Muslims have backed the council's removal of Aishah Azmi, the bilingual support teacher. The teacher has taken the case to an employment tribunal.
Battles Over Christmas Displays Beginning
Meanwhile in Berkley, Michigan, a group of residents, hearing that the city was considering possibly ending its 65 year tradition of displaying a nativity scene on city property, have formed a new group called "Stop the ACLU Tyranny". Michigan’s Hometown Life reporting last Friday on the developments quoted one member of the new group who describes the ACLU's position against the religious displays as "religious bigotry". (See prior posting.)
"Untouchables" Convert To Protest Anti-Conversion Laws
Egypt Censors Book Discussing Controversial Muslim Changes
Hawaii Court Rejects Student's Religious Objections To TB Test
Former White House Aide Charges Hypocritical Attitude Toward Evangelicals
[Kuo] says some of the nation’s most prominent evangelical leaders were known in the office of presidential political strategist Karl Rove as "the nuts."Conservative Christian leaders questioned the timing of the book’s publication. (Washington Post). At his press briefing on Friday, White House Press Secretary Tony Snow emphasized that the White House has not seen the book, so it cannot respond to it. However, he said so far as there is an insinuation that the administration takes faith-based groups lightly, that is false. And he said that Carl Rove has denied the book’s report that he referred to evangelical leaders as "nuts".
"National Christian leaders received hugs and smiles in person and then were dismissed behind their backs and described as 'ridiculous,' 'out of control,' and just plain 'goofy,'" Kuo writes.
More seriously, Kuo alleges that then-White House political affairs director Ken Mehlman knowingly participated in a scheme to use the office, and taxpayer funds, to mount ostensibly "nonpartisan" events that were, in reality, designed with the intent of mobilizing religious voters in 20 targeted races.
Today Was "Liberty Sunday"
Church Sues City Over Ban On Food Aid In Downtown Areas
Friday, October 13, 2006
Texas Fair Held Public For Protection Of Religious Messages
Senate Committee Report Says Religious Group Was One That Aided Abramoff
Quebec Schools Seek More Accommodation of Religious Diversity
India's Supreme Court Says It Can Review Clemency Decision Based On Religion
Thursday, October 12, 2006
Canada's Moderate Muslims Want Government Protection From Fundamentalist Threats
3rd Circuit Denies En Banc Review In Title VII Case
Swiss City Debates Permitting Religious Cemeteries
Delaware AG Says Loans and Grant To Churches Were Unconstitutional
Times' Series On Religious Exemptions Criticized
Wednesday, October 11, 2006
Tennessee City Commissioner Supports Religion In Schools
Somalia Proposes Islamic Restrictions On Media
Iowa Diocese Files For Bankruptcy
UPDATE: The Associated Press on Wednesday distributed an interesting article on the risks and uncertainties of dioceses using the bankruptcy route to deal with priest sexual abuse liabilities.
Orthodox Church In Russia Insists Clergy Not Hold Civil Office
Michigan Rejects Intelligent Design In Science Classes
Catholic Hospital Succeeds In Defense Against Wiccan's Title VII Claim
Memorandum Raises 1st Amendment Defenses In Terrorism-Related Case
The Wooster (MA) Telegram & Gazette reports that last week, two high profile First Amendment lawyers filed appearances in a Massachusetts federal district court to represent the defendants. The lawyers are law professor Susan Estrich and former Massachusetts ACLU president Harvey Silvergate. On Oct. 5, 2006, they filed a fascinating 49-page memorandum urging dismissal of the indictment on First Amendment grounds. The case is United States v. Muhamed Mubayyid and Emadeddin Z. Muntasser (Criminal No. 05-40026-FDS, D MA).
The memorandum (available through PACER- subscription and fee required) argues that the information the defendants are charged with concealing related only to the ideological basis of Care International’s activities, and is therefore irrelevant to the granting of non-profit status to the group. It contends that the government is attempting to punish defendants for legitimate activities of an established religious charity that do not differ from the activities of mainline Jewish and Catholic organizations. The memorandum argues that the indictment misinterprets the concept of “jihad”, and that if the government’s theory is upheld, then mere distribution of the Koran by Muslim charities would become a criminal activity.
In arguing that Care International was merely pursuing religious goals, the memorandum says:
[I]t is well-established among all respectable sources that jihad, mujahideen, and zakat are all concepts which derive to varying degrees from the Koran and have enormous religious significance to practicing Muslims. Under the teachings of the Koran, Muslims have an obligation to give zakat,; the mujahideen are widely interpreted to be one of the eight categories of recipients entitled to zakat. The gravamen of the indictment is that Care was devoted to the support of "jihad" which the government simplistically defines as “holy war,” as if doing so negates the charitable and religious basis of Care’s and Mr. Muntasser’s claim to First Amendment protection and creates an obligation to supply information that would normally not be seen as material to such an application for tax-exempt status.
Tuesday, October 10, 2006
Turkish Government Hesitates To Permit Reopening Of Seminary
Montana Church Appeals Constitutionality Of State Election Regulations
Federal Grant Will Fund Study Of Impact Of Religion On Youth Social Behavior
Sunday Closing Rules In Nova Scotia Invalidated
School's Motion To Dismiss Suit On "Day of Truth" Cards Dismissed
Chinese Christian Member Of Unregistered Church Granted Asylum
Monday, October 09, 2006
Recently Available Prisoner Free Exercise Cases
In Kyles v. Clarke, 2006 U.S. Dist. LEXIS 72749 (ED WI, Oct. 4, 2006), a Wisconsin federal district court permitted a prisoner to move forward with his claim that he was denied the right to have Islamic religious services in the jail, while Christian religious services were offered several times per week.
In Wells v. Caldwell, 2006 U.S. Dist. LEXIS 72813 (ED MI, June 14, 2006), a Michigan federal magistrate judge permitted a Buddhist prisoner who was denied vegan meals to proceed with his claim that he was not given a reasonable chance to prove the sincerity of his religious beliefs.
In Harris v. Schriro, 2006 U.S. Dist. LEXIS 72558 (D AZ, Oct. 4, 2006), an Arizona federal district court dismissed two of the claims filed by a Jewish prisoner. The claim against a food service corporation were dismissed because it was not vicariously liable for its employees who failed to provide Kosher meals to the plaintiff. It rejected his claim that his rights were violated because no rabbi was provided to conduct religious services for him. No volunteer rabbi has been found who is available.
In Walton v. Tilton, 2006 U.S. Dist. LEXIS 72219 (ED CA, Oct. 3, 2006), a California federal magistrate judge recommended dismissal of a prisoner's claim that the California Department of Corrections and Rehabilitation's "no pork" policy constitutes an impermissible establishment of religion by endorsing the Muslim faith.
In Ortega v. Apio, 2006 U.S. Dist. LEXIS 72930 (D Az, Oct. 3, 2006), an Arizona federal district court gave plaintiff prisoner a chance to refile his claim to allege the proper elements of a cause of action, in connection with his claim that he has been denied access to Native American clergy and instead he received visits from "Rez Connections, a Christian ministration group bent on converting Native Americans to Christianity".
Preacher Acquitted On Noise, Trespassing Charges
A New Danish Muhammad Cartoon
Globe Series on "Exporting Faith"
Part II is titled "Religious Right Wields Clout-- Secular Groups Losing Funding Amid Pressure". It points out that USAID officials have favored groups that promote abstinence as the most important way to prevent AIDS. Of the $15 billion in the President's Emergency Plan for AIDS Relief (PEPFAR), $3 billion is for prevention, and $1 billion of that is required to be spent for "abstinence-until-marriage" programs. A 2003 law requires groups receiving anti-AIDS funds to have a policy explicitly opposing prostitution and sex trafficking. A number of foreign aid groups are concerned that this interferes with their outreach to sex workers who are at high risk for transmitting AIDS.
UPDATE: Part III is titled "Together, But Worlds Apart -- Christian Aid Groups Raise Suspicion In Strongholds of Islam". It says that hospitals in Muslim countries run by Christian groups create suspicion both because of popular opposition to U.S. policies around the world, and concern about proselytization.
Part IV is titled "Healing the Body to Reach the Soul-- Evangelicals Add Converts Through Medical Trips". It focuses on medical missions to developing countries by evangelical Christian medical personnel.
Sunday, October 08, 2006
Sandra Day O'Connor On Church-State
Boston Doctor Succeeds In Claiming Conscientious Objector Status
Religious Discrimination In Adoptions May Have Ended In India
3rd Circuit Reinstates Challenge To School's Policy Banning Religious Music
Candidate's Religious Beliefs Become Issue In Texas Judicial Race
British Court Fines Muslim Cabbie For Refusing To Transport Guide Dog
Times Series Examines Accommodation of Religion By American Law
Friday, October 06, 2006
Recent Publications On Church-State; Relgion & Law
- Frederick Mark Gedicks, The Permissible Scope of Legal Limitations on the Freedom of Religion or Belief in the United States, (Emory International Law Review, Vol. 19, 2005).
- Frederick Mark Gedicks & Roger Hendrix, Uncivil Religion: Judeo-Christianity and the Ten Commandments, (October 4, 2006).
- Carl H. Esbeck, "Play in the Joints Between the Religion Clauses" and Other Supreme Court Catachreses, (Hofstra Law Review, Vol. 34, p. 1331, 2006).
From European Journal of Philosophy:
- Jurgen Habermas, Religion in the Public Sphere, (Vol. 14, No. 1, 2006). [PrawfsBlawg review.]
- Andy G. Olree, James Madison and Legislative Chaplains (Sept. 25, 2006).
- Mary R. Bundren, The Influence of Catholicism, Islam and Judaism on the Assisted Reproductive Technologies ("ART") Bioethical and Legal Debate: A Comparative Survey of Art in Italy, Egypt and Israel (September 22, 2006).
- Vincent Phillip Munoz, Thou Shalt Not Post the Ten Commandments? McCreary, Van Orden, and the Future of Religious Display Cases, 10 Texas Review of Law & Politics 357-400 (2006).
- Barbara A. Perry, Jefferson's Legacy to the Supreme Court: Freedom of Religion, 31 Journal of Supreme Court History 181-198 (2006).
- Joshua E. Perry, Biblical Biopolitics: Judicial Process, Religious Rhetoric, Terri Schiavo and Beyond,16 Health Matrix 553-630 (2006).
- Li-ann Thio & Jaclyn Ling-Chien Neo, Religious Dress in Schools: the Serban Controversy in Malaysia, 55 International & Comparative Law Quarterly 671-688 (2006).
Hijab Remains Controversial In Some Countries
In Tunisia, the government is defending its ban on wearing the hijab in educational institutions and public buildings. Islam Online reports that women students are increasingly kept out of classes if they insist on wearing a hijab. Last month in Tunisia, security forces raided toy stores and removed all the Fulla dolls. Islam Online reports that these hijab clad dolls, with long sleeve dresses and a prayer mate, have outpaced Barbie dolls in popularity in the country. Tunisian Religious Affairs Minister Aboubaker Akhzouri said that the hijab runs counter to the country's "cultural legacy," and is seen as a "foreign phenomenon" in society.
University Of The Cumberlands Withdraws Motion To Dismiss Suit Against It
Alaska Constitution May Protect Religious Marijuana Use
The Court of Appeals reversed and remanded for the trial court to conduct an evidentiary hearing on whether the defendants' conduct was based on a sincere religious belief and, if so, whether the state has not merely a compelling interest in enforcing its drug laws, but whether that interest will suffer if an exemption is granted to accommodate these defendants' religious beliefs. The court said that the test under the Alaska Constitution was similar to the test under RFRA applied by the United States Supreme Court in its 2006 O Centro decision.
Suit Charges New York With Failing To Accommodate Religious Practices Of Prison Guards
Saudis Try Al Qaeda In Shariah Courts
Democrats Tout Religious Credentials In North Carolina
European Court Upholds Salvation Army Claim Against Russia
Thursday, October 05, 2006
Michigan City Deciding Whether To Move Creche To Private Property
Indian Court Will Hear Challenge To Jain Fasting Ritual
More Prisoner Free Exercise Cases From September
In Barnes v. Pierce, 2006 U.S. Dist. LEXIS 69303 (SD TX, Sept. 26, 2006), a Texas federal district court permitted inmates to proceed with a claim that Muslim prisoners are not allowed the same opportunities as are available to prisoners of other faiths to practice their religion, but rejected a challenge to the prohibition on prisoners wearing beards.
In Colquitt v. Camp, 2006 U.S. Dist. LEXIS 69934 (MD FL, Sept. 27, 2006), a Florida federal district court permitted a Muslim plaintiff to move ahead with his claim against one of the jail officials he sued. Plaintiff alleged that officials refused to accommodate his dietary restrictions during Ramadan and retaliated against him for filing complaints in connection with his diet issues. It also held that defendant was not entitled to qualified immunity.
In Grant v. Sutton, 2006 U.S. Dist. LEXIS 70076 (SD IL, Sept. 27, 2006), an Illinois federal district court permitted a former inmate to move ahead with claims that prison officials did not give Muslim inmates full access to the prison chapel for prayer, would not allow Imams to lead services except during Ramadan, denied Muslim inmates permission to participate in religious festivals, denied them access to Qurans, denied plaintiff permission to attend religious classes and chapel, and barred him from leading worship services.
In Ferdinand v. Johnson, 2006 U.S. Dist. LEXIS 70986 (WD VA, Sept. 29, 2006), a Virginia federal district court held that a prison's grooming policy did not violate the Religious Land Use and Institutionalized Persons Act.