Recent Articles of Interest In Law and Religion

From NELLCO:
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).

Wisconsin Diocese Charged With Election Violations

Wisconsin election law requires any group that spends over $25 to support or oppose a state referendum to register with the State Elections Board. The Wisconsin Democracy Campaign (WDC) has sent a memo to the State Elections Board charging that the Catholic Diocese of Madison violated this provision when Bishop Robert Morlino passed out a flier to all parishioners urging them to support a November 7 constitutional amendment to ban same-sex marriages. Channel 3000 today reports Morlino's response: "a law that tells me I should have recourse to the state or commission in order to teach the truth of Christ about marriage in my own churches is an obstacle to our own free expression of religion." WDC has also issued a release on the matter.

Evangelist's Tax Evasion Trial Continues

Today's Pensacola (FL) News Journal reports on the ongoing tax evasion trial in federal district court of Pensacola evangelist Kent Hovind. At Hovind's Creation Science Evangelism Ministry, which includes Dinosaur Adventure Land, Hovind has failed to withhold federal income, social security and medicaid taxes, taking the position that he and his employees work for God, are paid by God and therefore aren't subject to taxation. Yesterday, Rebekah Horton, senior vice president of Pensacola Christian College testified for the prosecution saying that tax evasion is against the Scriptures. Pensacola Christian College, concerned about its students who worked for Hovind, apparently brought the situation to the attention of the IRS.

Times Series On Religious Exemptions Continues, As Does Comment On It

The New York Times today ran a fifth installment of its series on the benefits religious organizations receive from regulatory and tax exemptions. (See prior posting.) Today's installment, titled Ministry's Medial Program Is Not Regulated, focuses on exemptions of medical bill-sharing ministries from state insurance laws. One such group, the Christian Care Ministry, is facing a hearing next week on a complaint by the Kentucky Office of Insurance that the organization should in fact have to register as an insurance company.

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

In the Chicago suburb of Burbank, Illinois, Nichole Schultz filed suit this week because the city is requiring her to display a sticker on her automobile that she says endorses Christianity. The sticker depicts a soldier with a rifle, kneeling before a grave marked a cross. City officials say the cross is a generic symbol, while Shultz argues that the city is forcing her to Christianize her car. Today's Chicago Tribune reports that Schultz-- who apparently is an atheist-- is not asking the city to change the sticker, but instead is seeking an exemption from the requirement to display it. Earlier attempts to reach an out-of-court solution with the city failed. Now however the city says that Schultz could cover or cut out the cross on the sticker.

New York High Court Upholds Women's Health Act Under New State Constitutional Test

Yesterday in Catholic Charities of the Diocese of Albany v. Serio, NY Ct. App., Oct. 19, 2006), New York's highest court upheld a provision in the state's Women's Health and Wellness Act (WHWA) that requires faith-based organization to include contraceptive coverage for women in any prescription plan that they offer employees. (See prior posting.) The statute includes an exemption for most churches and religious schools where contraception is contrary to the institution's religious tenets. However, the exemption does not cover religiously affiliated social service agencies or hospitals. In this case, a group of ten faith-based social service agencies claimed that the law requires them to violate their religious beliefs by supporting conduct they believe to be sinful. However the court rejected both federal and state constitutional challenges to the law.

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

LifeSite News yesterday reported on a case pending in a Manitoba (Canada) Court of Queen's Bench brought by a former provincial marriage commissioner who was forced to surrender his license after he refused to perform same-sex marriages. After the legalization of same-sex unions in Canada in 2004, Manitoba adopted a policy requiring commissioners to perform them. However Ken Kisilowsky says that the policy violates his evangelical Christian beliefs. Clergy are not required to perform same-sex marriage, but others who hold licenses as marriage commissioners are. After the Manitoba Human Rights Commission rejected his religious discrimination claim, he filed the pending appeal. A number of marriage commissioners in Manitoba, Saskatchewan, Newfoundland and British Columbia have resigned over similar requirements. [Thanks to Alliance Alert for the lead.]

Missouri School Board Asked To Reinstitute "Christmas" Break

In Strafford, Missouri, supported by 30 people in attendance at the meeting, Dee Wampler last week asked the Strafford School District to change the name of "Winter Break" to "Christmas Break". The Springfield, Missouri News Leader reported today that Wampler told the board: "I'm not here today to say this is a religious thing. I'm saying this is our history, our national tradition, that we should recognize." However, others clearly thought it was a religious issue. Dennis Gromer, husband of a Strafford teacher and a local said, "This is a chance for us as Christians to make a stand on what we say that we stand for." No action will be taken until the Board discusses next year's calendar at its January meeting.

IRS Complaint Filed Against Church For Pastor's Political Endorsement

Citizens for Responsibility and Ethics has filed a complaint with the Internal Revenue Service against a Brooklyn Park, Minnesota church alleging that the church violated the terms of its tax exempt status when its minister personally endorsed a Congressional candidate from the pulpit last Saturday night. Yesterday the Associated Press reported that Rev. Mac Hammond of the Living Word Christian Center says that he misunderstood IRS guidelines, and says that this will not happen again. Speaking at the church, Republican candidate Michele Bachmann said that God had called on her to run for Congress. Videos of Bachmann's speech at the church can be viewed on YouTube.

New York Court of Claims Lacks Jurisdiction Over RLUIPA Cases

In a decision handed down two months ago, the New York State Court of Claims held that it lacks jurisdiction over a damage claim brought under the Religious Land Use and Institutionalized Persons Act alleging that a state prisoner's right to religious freedom was violated. In Gill v. State of New York, (NY Ct. Cl., Aug. 28, 2006), the court held that while state courts have concurrent jurisdiction with federal courts to adjudicate RLUIPA claims, New York law has not given jurisdiction in such cases to the Court of Claims. The court also held that damages from the state are not available for a violation of the New York constitution's protection of free exercise of religion, and that the state Supreme Courts, and not the Court of Claims, have jurisdiction over violations of New York's Correction Law, Sec. 610, that protects the free exercise of religion by prison inmates.

European Court OKs Turkish School's Required Photo Without Headscarf

On Monday, the European Court of Human Rights rejected an attack on regulations promulgated by Turkey's Higher Education Council, according to a report in Zaman. After losing in Turkey's administrative courts and State Council, Emine Arac, a student at the Marmara University Theology Faculty, appealed to the European Court claiming that her school required her to submit a picture of herself without her headscarf when she registered for classes. However the court held that the requirement does not violate the protections for religion and expression, or infringe the right to an education, guaranteed by the European Convention on Human Rights.

Christian Agency Entitled To Hire On Basis of Religion Under Title VII

In Jackson v. Light of Life Ministries, Inc., 2006 U.S. Dist. LEXIS 75265 (WD PA, Oct. 16, 2006), a Pennsylvania federal district court rejected a Title VII religious discrimination claim that was brought by a part-time program aide at a Christian social service agency that provided food, shelter and outreach to the homeless. Raymond Jackson, a Jehovah's Witness, claimed that he was not hired full-time because of his religion, and then was fired in retaliation for filing an EEOC complaint. The court found that Light of Life was clearly a religious organization entitled to hire on the basis of religion under Title VII, and that the exemption applied even though Jackson's job did not require him to engage in religious counseling or religious activities.

Politician Promises Restoring Of Land To Bulgarian Orthodox Church

In Bulgaria, popular nationalist politician Volen Siderov, chairman of the National Union Attack party, recently met with the acting head of the Bulgarian Orthodox Church, Metropolitan Bishop Kiril, promising legislation to restore properties of the Church that were nationalized in 1945. The Sofia Weekly reported on Tuesday that Siderov and the Bishop have also discussed introducing religious studies in schools, and proposals to make the Orthodox Church Bulgaria's official religion.

DC Circuit Upholds Terrorist Designation Of Jewish Website

On Tuesday, the U.S. Court of Appeals for the DC Circuit upheld the Secretary of State's decision to designate Kahane Chai as a Foreign Terrorist Organization and to designate its website, Kahane.org, as an alias of the organization. In Kahane Chai v. Department of State, (DC Cir., Oct. 17, 2006), among other things, the court rejected claims by Kahane.org that the government had discriminated against it on religious grounds because websites of other Foreign Terrorist Organizations were not targeted. Jurist yesterday reported on the decision.

Muslim Scholars Write Pope On His Regensburg Speech

Earlier this week, 38 Muslim scholars from 20 countries-- some of the who are also government officials-- sent a letter to Pope Benedict XVI criticizing the interpretation of Islam in the Pope's recent speech at the University of Regensburg, in Germany. A report by the Catholic News Services points out that one focus of the scholars' letter was on the Pope's remarks about the concept of jihad. The letter also said to the Pope: "We share your desire for frank and sincere dialogue, and recognize its importance in an increasingly interconnected world. Upon this sincere and frank dialogue we hope to continue to build peaceful and friendly relationships based upon mutual respect, justice, and what is common in essence in our shared Abrahamic tradition." The full text of the letter, and the list of its signers, has been published by Independent Catholic News.

Air Force Changes Chaplain Guidelines As Mandated By Congress

As a previous posting notes, last month, a Conference Committee report on the Defense Authorization Act called for both the Air Force and the Navy to repeal their recent regulations governing the activity of chaplains and reinstate policies from earlier rules. Now Jews On First reports that on October 2, three days after Congress passed and the President signed the Defense Appropriations Act, the Air Force issued new guidelines for chaplains. The new rules appear to implement the mandate to reinstate policies from the Air Force's 1999 guidelines. The guidelines now provide that the Chaplain Service "requires awareness of, and sensitivity to, the diverse religious needs of Air Force members". They define the Chaplain Service's Global Ministry as one that is sensitive to the "religiously pluralistic environment" in which it operates, and state that "chaplains adhere to the requirements of their endorsing religious organizations while providing for the spiritual and religious needs of all Air Force members, their families, and other authorized personnel".

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

Last month, an Illinois appellate court, after a rehearing, filed a modified opinion in a priest sexual abuse case that decides interesting questions relating to statute of limitations issues. In Softcheck v. Imesch, (IL 3d Dist. App., Sept. 1, 2006), the court held that 2003 amendments to Illinois' statute of limitations cannot apply retroactively to revive claims for which the prior limitations period had run before 2003. In a 2-1 decision, the court held that the prior statute of limitations had not been tolled under the discovery rule. Plaintiffs' allegations that they did not, until recently, realize the wrongfulness of defendants' conduct were insufficient to prevent the statute from running. Finally, the court held that it was not being asked to unconstitutionally pass on the validity of church doctrine by allegations that defendant priests assured plaintiffs that instructions of the Church were infallible and complying with directions of priests would be beneficial. The original appellate decision had been handed down in January.

Minneapolis Bus Driver Can Avoid Busses With Offensive Ad

The McClatchy Newspapers yesterday reported on a decision by Minneapolis (MN) transit officials to accommodate religious beliefs of a bus driver. The driver objected on religious grounds to an ad carried on some 25 of the city's 150 busses. The ad promotes a local magazine aimed at gay, lesbian, bisexual and transgendered readers. An internal memo by the Transit Authority gives the employee permission to refrain from driving any of the busses that carry the offensive ad. The decision is of particular interest in light of last month's decision by Minneapolis-St. Paul airport officials to accommodate Muslim cab drivers who object to transporting passengers who bring alcohol in the cab.

Rabbis Seek Move To Jewish Religious Courts For Civil Cases In Israel

In Israel yesterday, a group of rabbis and experts in Jewish law launched "Gazit", a chain of nine Jewish religious courts that they hope will replace the nation's civil courts. Today's Jerusalem Post says that the organizers hope that tort and contract disputes will be settled according to Jewish law in these courts instead of in civil courts under Israeli civil law. They envision the Jewish law courts being used by both Jews and non-Jews. Currently the decisions of these courts will already be recognized by civil courts in the same way that decisions of other arbitral bodies are enforced. Experts say that for this initiative to succeed, issues relating to testimony of women and of non-Jews in Jewish religious courts will need to be worked out.

California Courts Hear Arguments Over Cross and Constitution

Two separate appellate courts in California yesterday heard arguments in cases involving challenges to alleged unconstitutional uses of a cross by local authorities. In Pasadena, a panel of the U.S. 9th Circuit Court of Appeals heard arguments in a case challenging a 2004 decision by Los Angeles county to remove a cross from the county's official seal. Today's Los Angeles Daily Bulletin reports that the suit was filed by the Thomas More Law Center on behalf of county Department of Public Works employee. He alleges that the change in the county's seal violated the Constitution by conveying a state-sponsored message of disapproval and hostility toward Christianity. The county has already spent $700,000 replacing the old seal with the new one that features a mission and an American Indian.

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

In Morgan County, Indiana, a federal lawsuit has been filed by an elementary school parent challenging the Weekday Religious Education Program offered to Neil Armstrong Elementary School students. IndyStar today reports on the litigation, filed through the ACLU of Indiana. The complaint (full text) alleges that the religious classes are offered from a trailer on school property, and that school officials monitor enrollment and single out students who elect not to participate. Mary Parker, an adviser to Morgan County Schools on the program, said that the trailer is on the edge of school grounds for convenience, and that utilities and other costs are paid by the non-profit group offering the program. However, she said that if necessary to avoid controversy, the location of the program would be moved. 1500 3rd and 4th graders in Morgan and Adams counties participate in the one-hour-per-week Christian education program.

Requiring Midwifery License Might Violate Religious Freedom

A Florida state appellate court has held that Linda and Tanya McGlade, convicted of practicing midwifery without a license, may be able to challenge their convictions under Florida's Religious Freedom Restoration Act. The women sought to post bond pending appeal of their convictions, but the trial court refused, according to yesterday's Manatee Herald. Bond is allowed under Florida law (Title XLVII, Sec. 903.132) only if the appeal is "in good faith on grounds not frivolous but fairly debatable". The appellate court reversed the denial of bond, saying that the Religious Freedom Restoration Act is a reasonable, arguable ground for the appeal by the women who had been sentenced to 30 months in prison in the case that involved the death of the mother whose delivery they assisted.

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 Campbell v. Alameida, 2006 U.S. Dist. LEXIS 73111 (ND CA, Sept. 25, 2006), a California federal district court rejected an inmate’s claims that the refusal to permit him to purchase and keep religious oils in his cell violated his rights under the 1st and 14th Amendments. It found that while the refusal may have violated his rights under RLUIPA, defendants had qualified immunity from damages, and no injunctive relief was available because now prison authorities were permitting plaintiff to have the requested oils.

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.

Court Invalidates Eagle Protection Act Implementation As RFRA Violation

Last week, a federal district court in Wyoming granted a motion to dismiss criminal charges that had been filed against Winslow Friday, a member of the Northern Arapaho Indian Tribe. In United States v. Friday, (Case No. 05-CR-260-D, Oct. 13, 2006), the court held that the government's implementation of the Bald and Golden Eagle Protection Act (BGEPA) violates the defendant's right to the free exercise of religion as protected by the Religious Freedom Restoration Act.

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

Virginia voters this November will be asked to approve an amendment (full text) repealing a provision in Art. IV, Sec. 14 of the state's constitution that prohibits the legislature from granting a charter of incorporation to any church or religious denomination. Today's Hampton Roads Pilot reports that the vote will have little practical significance since a federal District Court in 2002 ruled that the ban violates the First Amendment's guarantee of free exercise of religion.

House of Lords To Consider Removing Christian Prayer In Schools Requirement

Great Britain's House of Lords this week will debate a proposed amendment to the Education and Inspections Bill that would remove the requirement that schools to provide a daily "act of collective worship" that must be "wholly or mainly of a broadly Christian character". The amendment instead calls for assemblies that are inclusive of all children, according to a press release issued by a coalition of religious groups, teaching unions and the British Humanist Association. A briefing paper issued by the coalition supporting the change points out that the new language will call for school assemblies that further pupils' "spiritual, moral, social and cultural education". (See prior related posting.)

FBI Hate Crimes Stats For 2005 Released

The FBI yesterday released data on hate crimes in the United States for 2005. Overall, such crimes were down by 6% from the previous year, according to a report by the Associated Press. Just over 17% of all hate crimes in 2005 targeted victims because of their religious beliefs. The detailed data is available from the FBI's website.

7th Circuit Rejects RLUIPA Challenge To Forced Feeding

In O'Malley v. Litscher, (7th Cir., Oct. 16, 2006), the U.S. Seventh Circuit Court of Appeals yesterday rejected a prisoner's claim that prison officials violated his rights under the Religious Land Use and Institutionalized Persons Act by force feeding him to end his protest fast. Robert O'Malley claimed he was using the power of prayer and fasting to ask God to move his former accusers to recant testimony that led to his conviction for sexual assault. Ultimately prison officials obtained a court order permitting them to force feed O'Malley. The court held that the choice of methods to end O'Malley's fast did not implicate his religious rights. It also held that carrying out a state court's order is not an independent violation of the constitution or of RLUIPA. [Thanks to How Appealing for the information.]

Alaska Supreme Court Decides Church Property Dispute

The Alaska Supreme Court this week, in a case of first impression under Alaska law, decided how property disputes should be resolved following a schism between a church an its parent body. In St. Paul Church Inc. v. Board of Trustees of the Alaska Missionary Conference of the United Methodist Church, Inc., (AK Sup. Ct., Oct. 13, 2006), the court applied an approach that relied on neutral principles of law to determine that the Alaska Missionary Conference (AMC) was entitled to possession to two parcels of property acquired by St. Paul's when it was affiliated with the United Methodist Church. However, the court held that St. Paul's Church was entitled to retain its independent corporate existence and name. The court also upheld trespass and conversion claims against individuals connected with St. Paul's who entered the church, changed the locks and held services in it over the objections of AMC.

City's Public Access Channel Pulls Religious-Political Videos

After a complaint from the president of the East County (California) Democratic Club, the City Manager of El Cajon, CA has removed videos created by David Barton, Vice Chair of the Texas Republican Party, from the city-owned public access television channel, according to the Raw Story yesterday. The city had a policy that it would not accept programming that directly promotes religious beliefs or religious philosophies for broadcast. Nevertheless, it had paid over $2500 per year for videos produced by WallBuilders that focus on "the Godly foundation of our country" and had political, historical and Christian themes. (The videos on DVD are available on WallBuilders website for $19.95 each.) In particular, Democrats objected to the airing of a video titled "The Role of Pastors & Christians in Civil Government".

Illinois Bishops Issue Statement On Conscience and Voting

Yesterday, the six Catholic bishops of Illinois issued a statement on Elections, Conscience, and the Responsibility to Vote. In part, it reads:

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....

Cert. Denied In Scouts' Suit Against Berkeley Non-Discrimination Policy

On Monday, the U.S. Supreme Court, after agreeing to permit several groups to file amicus briefs, denied certiorari in Evans v. City of Berkeley, (No. 06-40). In the case, the California Supreme Court had upheld the right of a city to suspend free use of its marina by the Sea Scouts (a Boy Scout affiliate) because the scouts refused to confirm that they would not discriminate against gays and atheists. (See prior posting.) The Los Angeles Times, covering the denial of cert., reported "Some conservative groups had joined the challenge to the Berkeley policy, saying that advocates of 'traditional moral values' were being subjected to discrimination nationwide by 'politically correct' government officials." Here are the full amicus briefs filed by the United States Justice Foundation, and by the Boy Scouts of America. [Thanks to Steven H. Sholk for the lead.]

Ballot Measure On Alcohol Sales Raises Church-State Issues

In Arkansas City, Kansas, voters are being asked to vote to overturn city council's decision to permit the sale of alcohol on Sundays. The Ark City Traveler on Monday reported that many who oppose the ballot measure see it as an infringement on the separation of church and state, while some who support the ban on Sunday alcohol sales see it as supporting the mandate in the Ten Commandments to honor the Sabbath.

Cert. Petition Filed In Polygamy Case

A petition of certiorari has been filed seeking U.S. Supreme Court review of the Utah Supreme Court's decision in State of Utah v. Holm. (See prior posting.) Today's Salt Lake Tribune reports that the petition asks the high court to review the constitutionality of polygamy laws, arguing that the right to privacy precludes states regulating intimate relationships that occur outside of marriage. Rodney Holm is a member of the Fundamentalist Church of Jesus Christ of Latter Day Saints that considers taking multiple wives to be a religious obligation. Utah's polygamy law permits prosecution of person like Holm who do not enter multiple legal marriages, but merely take additional wives in religious ceremonies.

New Zealand Will Penalize Excessive Political Activity By Churches

In New Zealand, government rules under the new Charities Act of 2005 will permit the country's Charities Commission to strip churches (and other charities) of their tax exempt status if their predominant activity is political advocacy for social change rather than engaging in charitable activities. Political advocacy as a "subsidiary activity" will still be allowed, according to a report today in the Dominion Post.

Sunnis In Iraq Want Separate Islamic State

Reuters reported yesterday that in a video on an Iraqi website, the leader of a Sunni insurgent coalition led by al Qaeda has called for the setting up of a separate Islamic state in Baghdad and in the provinces of Anbar, Diyala, Kirkuk, Salahedddin, Nineveh and parts of Babel and Wasit-- all areas where there are large concentrations of Sunni Arabs. The move follows approval by Iraq's parliament of procedures for creating federal regions that could lead to a Shi'ite state in the center and south of the country.

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

From SSRN:
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).

Interesting Employment Discrimination Cases From Britain

A number of interesting cases involving religious discrimination in employment have arisen recently in Great Britain. British Airways has generated controversy by demanding that a Christian check-in worker remove, or conceal under her clothing, a cross that she was wearing around her neck. Saturday's Examiner says that the airline does not have a similar policy regarding turbans, hijabs and bangles since it is not practical to conceal these under airline uniforms.

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

Christian groups opposed to limitations on public religious displays during the upcoming holiday season are already beginning to organize. Liberty Counsel has launched its "Fourth Annual Friend or Foe Christmas Campaign". It pledges to be the "Friend" of those who do not censor Christmas, and a "Foe" to those that do. It offers a "Help Save Christmas" package that includes legal memoranda, bumper stickers, buttons and sample ads.

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

In the city of Nagpur, India this week end, 9000 Dalits (low-caste Hindus) converted to Buddhism and 500 converted to Christianity-- to protest anti-conversion laws that have been enacted by a number of Indian states. Catholic News reports that the ceremony marked the 50th anniversary of the conversion to Buddhism of Bhimrao Ramji Ambedkar, a Dalit who drafted India's current constitution.

Egypt Censors Book Discussing Controversial Muslim Changes

The Egyptian Organization for Human Rights (EOHR) last week protested action by the Egyptian Censorship Office in raiding a bookstore and seizing 280 copies of the book "Modern Sheikhs and the Making of Religious Extremism". All Africa.com on Friday reported that the seizure was based on the failure of the book’s publisher to obtain a license from Al Azhar. The book criticizes Egyptian censorship, and discusses separation of church and state, as well as the right of women to lead Muslim prayer. EOHR says that the seizure violates protections for freedom of opinion and expression found in Egypt’s constitution.

Hawaii Court Rejects Student's Religious Objections To TB Test

In Hilo, Hawaii, a state judge has refused to extend a restraining order she previously issued ordering the Department of Education to admit 14-year old Alena Horowitz to high school. Saturday’s Honolulu Star Bulletin reports the student objects on religious grounds to taking a required tuberculosis test, saying that she has religious objections to permitting foreign substances to enter her blood. The court ruled that the claim had already been rejected in a prior federal court suit and that there would be no irreparable harm in denying an extension of the order since Alena could be home-schooled, as she had been previously. According to Saturday’s Honolulu Advertiser, Hawaii law allows religious exceptions from required immunizations, but state officials say the law does not cover TB testing.

Former White House Aide Charges Hypocritical Attitude Toward Evangelicals

MSNBC on Friday reported on a controversial new book by David Kuo, who was second in command at the White House Office of Faith Based Initiatives from 2001 to 2004. The book, titled Tempting Faith, is scheduled for release on Oct. 16. MSNBC reports:

[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."

"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.

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".

Today Was "Liberty Sunday"

Today was Liberty Sunday, a nationwide simulcast sponsored by Tony Perkins' Family Research Council. The theme of the program was the idea that the expansion of non-discrimination laws to include sexual orientation constricts the rights of Christians to express their religious beliefs, and that there have been increasing incidents of "government intolerance against those who live out their faith in the public square." Speakers were to include Ann Romney, wife of Massachusetts Governor Mitt Romney. The governor himself, and a number of other politicians, were to be featured in video presentations. (Christian Post.) People for the American Way issued a release on Friday criticizing Liberty Sunday as being based on a warped premise, and saying that the charge that there is a "War on Christians" is "bogus".

Church Sues City Over Ban On Food Aid In Downtown Areas

In July, the city of Orlando, Florida enacted an ordinance banning religious and charitable groups from serving meals to the hungry at the city’s Lake Eola Park and other areas downtown without first obtaining a special permit. A permit is available to any particular organization only for serving two times each year; however the city has created an alternative sitre that can be used without a permit. (See prior posting.) On Thursday, the ACLU of Central Florida brought suit against the city on behalf a church, the homeless man that serves as its pastor, and on behalf of a charity that serves vegan meals, alleging that the new ordinance is an unconstitutional infringement of free expression rights. The South Florida Sun Sentinel reported on the lawsuit. Both sides express hope that the suit will encourage negotiations between the parties.

Texas Fair Held Public For Protection Of Religious Messages

Yesterday a federal district court in Texas held that the Texas State Fair is a public, not a private event, so that the First Amendment protects the rights of Christian proselytizer Darrel Rundus. A release by the AFA Center for Law and Policy reports on the case. The city had taken the position that only the sidewalks outside the fairgrounds are public. While Rundus won the right to orally present his message on the fairgrounds, the court upheld the State Fair's rule that required anyone wishing to hand out leaflets on the fairgrounds to pay a fee.

Senate Committee Report Says Religious Group Was One That Aided Abramoff

The Senate Finance Committee yesterday released a 600-page report charging that five non-profit groups may have jeopardized their tax-exempt status by taking money from clients of convicted lobbyist Jack Abramoff in exchange for assisting Abramoff's lobbying efforts. (Washington Post). Today's Seattle Post Intelligencer reports that one of the groups implicated is Toward Tradition, a group based in Washington state that was once chaired by Abramoff. Toward Tradition describes itself as "a national coalition of Jews and Christians devoted to fighting the secular institutions that foster anti-religious bigotry, harm families, and jeopardize the future of America." The Senate committee report, written by the Democratic staff of the Finance Committee, says that Toward Tradition took money in exchange for help in generating news articles for Abramoff and his clients. Republicans on the committee agreed to release of the report. (See prior related posting.)

Quebec Schools Seek More Accommodation of Religious Diversity

Canada's province of Quebec is examining ways to more effectively deal with religious differences in the schools. Education Minister Jean-Marc Fournier has announced creation of a committee to make recommendations on "reasonable accommodation" of religious, cultural and linguistic diversity. Yesterday's Montreal Gazette reported that the move comes after discovery of a network of underground schools run by parents who are unhappy with the public school system.

India's Supreme Court Says It Can Review Clemency Decision Based On Religion

India's Supreme Court on Wednesday held that the courts can review the exercise of clemency by the president or governor. In Epuru Sudhakar & Anr. v. Government of Andhra Pradesh & Ors., the court said that it should overturn a clemency decision where religion, sex, race, political loyalty or caste was the basis for the decision. PTI reported on the decision.

Canada's Moderate Muslims Want Government Protection From Fundamentalist Threats

Farzana Hassan, president of the Muslim Canadian Congress, has written Ontario's Attorney General asking him to investigate "thinly veiled death threats" made by fundamentalist Muslims against moderate Muslims. The report yesterday by CanWest News Service explains that statements charging moderates are anti-Islam are understood within the Muslim community to be charges of apostasy that are punishable by death. The Muslim Canadian Congress says that labeling a Muslim as anti-Islam or an apostate should be considered a hate crime.

3rd Circuit Denies En Banc Review In Title VII Case

The Wilkes Barre (PA) Times Leader reported yesterday that the U.S. 3rd Circuit Court of Appeals has denied en banc review in Petruska v. Gannon University. A 3-judge panel in September held in the case that the "ministerial exception" to Title VII of the 1964 Civil Rights Act precluded recovery by a female chaplain who claimed that she was demoted at Gannon University because she was a woman.

Swiss City Debates Permitting Religious Cemeteries

Currently, cemeteries in Geneva, Switzerland must be public and non-denominational. However, Jews and Muslims both would like to create private cemeteries in which they can bury their dead according to their religions' rules-- something they can now do in only limited space that is running out. The Associated Press reports that a bill to permit private cemeteries is to be voted on this week by the cantonal parliament. However, Social Democrats are opposed to the proposal. Christian Brunier, Social Democrat deputy, said: "This would open the door to community divisions".

Delaware AG Says Loans and Grant To Churches Were Unconstitutional

The Wilmington, Delaware News Journal reported that a Delaware Attorney General's Opinion released on Wednesday said that three loans and one grant to churches by the town of Middletown, Delaware were probably unconstitutional. Deputy Attorney General Frank N. Broujos said that most of the town's loans to non-profit organizations were probably permissible because they advanced a public purpose. However the grant and loans to churches impermissibly advance religion and religious activities.

Times' Series On Religious Exemptions Criticized

An article Wednesday by the Business & Media Institute strongly criticized the New York Times' recent series on benefits and exemptions granted by government to religious organizations. The Institute said that the series was a "pro-government, pro-regulation treatise". It argues that Diana B. Henriques, reporter on the Times series, failed to point out "the radical nature of several anti-religious sources mentioned in her series".

Tennessee City Commissioner Supports Religion In Schools

In Mt. Juliet, Tennessee, city commission member Glen Linthicum is leading a campaign against the recent lawsuit filed by the ACLU that challenges religious practices in the Wilson County (TN) school district's Lakeview Elementary School. Linthicum co-sponsored a resolution passed unanimously by the city commission urging the schools to fight for their rights to religious expression. He is also organizing a prayer rally for later this month to support the schools. The Tennesssean quotes Linthicum, who said:: "What I hope to accomplish is to send a clear message to ACLU and the rest of Tennessee that Mt. Juliet stands for traditional values in America and that ACLU needs to ply their trade elsewhere."

Somalia Proposes Islamic Restrictions On Media

In Somalia, Islamists who have taken over control of Mogadishu and most of central and southern Somalia have proposed a new set of restrictions that would be imposed on the media. They are designed to prohibit "un-Islamic" reporting, according to a report today from South Africa's IOL. Thirteen proposed rules would ban reporting of information seen as contrary to Islam. The rules would also require registration for media. Reporters Without Borders called the proposals "completely unacceptable".

Iowa Diocese Files For Bankruptcy

The Davenport Iowa Diocese has become the fourth Roman Catholic diocese in the United States to go into bankruptcy in response to claims by individuals suing over sexual abuse by priests. The Des Moines Register reports today that the bankruptcy filing comes a month after the diocese was ordered to pay $1.5 million in damages to an abuse victim. David Clohessy, national director of Survivors Network of Those Abused by Priests, said: "Bankruptcy is not a particularly Christian response."

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

Interfax today reports that a Russian Orthodox priest is about to be suspended by the church after he won a recent civil election to become head of administration in the Russian village of Ladovksaya Balka. Yevgeny Bronsky, press secretary for the Diocese of Stavropol and Vladikavkaz said: "Canonically, a priest cannot be a temporal chief. By his decision to head an administration Igor Sheverdin has violated the oath he gave when he was ordained priest".

Michigan Rejects Intelligent Design In Science Classes

The Associated Press reports that on Tuesday, the Michigan State Board of Education unanimously adopted new curriculum guidelines that support the teaching of evolution and exclude the teaching of intelligent design in science classes. The theory could be taught in other courses. Michigan Citizens For Science issued a statement praising the fair procedures used by the Board of Education in considering the issue.

Catholic Hospital Succeeds In Defense Against Wiccan's Title VII Claim

In Saeemodarae v. Mercy Health Services-Iowa Corp., (ND IA, Oct. 6, 2006), an Iowa federal district court held that the religious organization exemption in Title VII of the 1964 Civil Rights Act could be invoked by a hospital founded by the Sisters of Mercy to defend against Title VII religious discrimination and retaliation claims. Plaintiff , a telemetry technician, alleged that the hospital fired her because of her Wiccan religious beliefs and activities, including her reading Wiccan literature while at work. The court held that the exemption applied to preclude the lawsuit even where plaintiff's work for the religious organization was secular in nature. The court declined to exercise supplemental jurisdiction over plaintiff's discrimination claim brought under state law, and so refused to decide whether the religious institution exemption in the Iowa Civil Rights Act is narrower than that in federal law.

Memorandum Raises 1st Amendment Defenses In Terrorism-Related Case

In May, 2005, two former officers of a Boston-based Islamic charity, Care International, were indicted on charges of concealing facts about Care International from the federal government and with defrauding the Internal Revenue Service into granting Care International 501(c)(3) tax status. The indictment claimed that the organization was involved in funding of the mujahideen and of jihad. (AP; US Attorneys Office; ADL summary).

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.

Turkish Government Hesitates To Permit Reopening Of Seminary

The question of whether the government of Turkey will permit the reopening of a 162-year old Greek Orthodox seminary on the island of Halki will be an important measure of religious freedom in Turkey, according to today's Turkish Daily News. That in turn will impact the decision on admitting Turkey to the European Union. In 1971, Turkey closed all university level religious schools, including Muslim ones. As the only secular state in the Muslim world, Turkey argues that it cannot permit the Christian seminary to reopen without also permitting Islamic groups to open schools that could radicalize the Muslim population. The government also does not want to take steps that could lead to Istanbul becoming a kind of "Vatican" for Orthodox Christians.

Montana Church Appeals Constitutionality Of State Election Regulations

Representing a Baptist church charged with violating Montana's election campaign reporting laws, the Alliance Defense Fund (press release) yesterday filed a notice of Appeal with the U.S. 9th Circuit Court of Appeals in Canyon Ferry Road Baptist Church v. Higgins, (D MT, Sept, 26, 2006). In the case, the district court rejected the Church's First Amendment speech and religion challenges to the election regulations. The Montana Commissioner of Political Practices had ruled that the church should have reported its support of activities in 2004 to get voters to pass a constitutional ban on gay marriage. (See prior posting.)

Federal Grant Will Fund Study Of Impact Of Religion On Youth Social Behavior

A $400,000 federal grant to Baylor University (press release) may shed light on the wisdom of funding faith based social programs. The grant, from the Department of Justice Office of Juvenile Justice and Delinquency Prevention, will fund a multidisciplinary initiative to study the role of religiousness, religiosity, religious institutions and congregations, as well as religious practices and beliefs, in promoting prosocial behavior among youth.

Sunday Closing Rules In Nova Scotia Invalidated

In Canada, the Nova Scotia Supreme Court has held that current Sunday closing regulations exceed the authority given to the province's Cabinet by the Nova Scotia Retail Business Uniform Closing Act. In Sobeys Group Inc. v. Attorney General of Nova Scotia, (N.S. Sup. Ct., Oct. 4, 2006), the court struck down Sunday closing rules that exempted most small grocery stores. It said: "Cabinet cannot discriminate either as to the size of the retail outlet or the corporate structure of it without the requisite regulatory power. Such power is neither express or implied in Section 8 of the [Retail Business Uniform Closing] Act. It logically follows that the impugned regulations are ultra vires the Governor in Council (the Cabinet) and are therefore of no force and effect." (See prior related posting.) The Halifax Daily News yesterday reported that most church-goers said that they will not be affected by the fact that stores may now be open.

School's Motion To Dismiss Suit On "Day of Truth" Cards Dismissed

Last week in Arthurs v. Sampson County Board of Education, (ED NC, Oct. 2, 2006), a North Carolina federal district court refused to dismiss a lawsuit against a North Carolina school system brought by a Christian student who was not permitted to hand out Day of Truth cards presenting a Christian view on homosexuality. (See prior posting.) The Sampson County Board of Education had moved to dismiss on the ground that the student's speech was not religious speech, but the court disagreed. In a press release, the Alliance Defense Fund, representing the student, said: "It’s clearly unconstitutional when students participating in the Day of Silence, which supports the homosexual agenda, are permitted to observe their event by distributing flyers ..., but a student with an opposite perspective is prevented from communicating it during non-instructional time."

Chinese Christian Member Of Unregistered Church Granted Asylum

Last week, the Department of Justice Executive Office For Immigration Review's Houston Immigration Court found that the heightened risks for unregistered church members in China is a change of circumstances that justifies granting a previously denied application for asylum. In the high profile case of In the Matter of Li, Xiaodong, (Oct. 3, 2006), the Immigration Court held that Xiaodong Li should be granted asylum. These developments, reported by the Alliance Defense Fund, follow a widely reported 2005 Fifth Circuit decision in the case upholding a denial of asylum. However that decision was vacated later in 2005 after the government agreed to reopen the case based on new evidence.

Recently Available Prisoner Free Exercise Cases

In Rhorabough v. Carey, 2006 U.S. Dist. LEXIS 72209 (ED CA, Oct. 3, 2006), a California federal magistrate judge dismissed a prisoner's claim that he was not allowed to attend religious services because the complaint did not connect the denial to any defendant named in the law suit.

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

In Commonwealth v. McRae, (Case No. 0366 SA 2005, Sept. 27, 2006), the Dauphin County, Pennsylvania Court of Common Pleas acquitted Ronnie M. McRae, director of the World Wide Street Preacher's Fellowship of charges that he violated Harrisburgh's noise ordinance while preaching across the street from an annual PrideFest gay pride festival held in July 2005. The court held that it need not reach the question of the constitutionality of the ordinance, since the DVD of the event demonstrated that defendant's preaching was consistent with the level of noise that was occurring at the festival. The court also acquitted McRae of charges of "defiant trespass", because McRae was preaching on a sidewalk that was open to the public. (See prior related posting.) [Thanks to David Miller for sending me a copy of the court's opinion.]

A New Danish Muhammad Cartoon

A controversy over a new Danish cartoon of the Prophet Muhammad could be brewing, according to today's Jakarta, Indonesia Post. On Friday, Denmark's national TV2 channel broadcast a video showing a drawing contest at a summer camp run by the far-right Danish People's Party. One of the drawings was a camel with Muhammad's head and beer bottles as humps. The 20 and 30 year olds participating in the contest appeared to have been drinking alcohol and were laughing at the drawing. Din Syamsuddin, chairman of Indonesia's Islamic organization, Muhammadiyah, urged that a lawsuit be filed against those producing the drawings for slandering Islam. However he urged followers not to over react, saying the airing may have been deliberately intended to provoke anger during Ramadan.

Globe Series on "Exporting Faith"

The Boston Globe is running a four-part series titled "Exporting Faith". Part I is titled "Bush Brings Faith to Foreign Aid-- As Funding Rises, Christian Groups Deliver Help -- With a Message". It points out that the present administration has almost doubled the percentage of U.S. foreign aid dollars going to faith-based groups-- mostly Christian groups-- and through a series of executive orders has removed many of the restrictions on intermingling government aid with religion. New policies permit foreign aid groups to engage in faith-based hiring, and to offer religious services immediately before or after distributing government funded aid.

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.

Sandra Day O'Connor On Church-State

Sunday's Richmond (VA) Times-Dispatch reports on a lecture focusing on church-state issues given by former U.S. Supreme Court Justice Sandra Day O'Connor at William & Mary Law School. In it, she said: "I do think we're lucky in this country. We have generally kept religion a matter of individual conscience and not a matter for the prosecutor or bureaucrat." She also said that she opposes the idea that the federal government should have greater leeway to reflect Christianity as the religion of the majority of Americans.

Boston Doctor Succeeds In Claiming Conscientious Objector Status

An Army doctor has succeeded in her attempt to obtain conscientious objector status after her religious beliefs changed since her enlistment. Anesthesiologist Mary Hanna will repay with interest the money the government spent on her medical education. Yesterday's Boston Globe reported that a Boston federal district court reversed the ruling of an Army review board denying CO status. The review board had relied extensively on evidence that the doctor's Coptic Orthodox faith does not have pacifism as one of its tenets. Last month the same court had issued a temporary injunction barring the Army from forcing Dr. Hanna into active duty. (See prior posting.)

Religious Discrimination In Adoptions May Have Ended In India

India's Daily News and Analysis on Saturday discusses the impact of the August 2006 amendments to India's Juvenile Justice Act on adoptions by non-Hindus. Before the new law, non-Hindus were only "guardians" of their adopted children until the children turned 18. The child had no inheritance rights unless named in a will, and the adoption could be revoked when the child turned 18. The new law allows people of any religion to adopt, and gives the adopted child the same legal rights as a biological child. However the old laws treating adoptions by non-Hindus differently than those by Hindus were not repealed, and the interaction of the old and new laws remains unclear.

3rd Circuit Reinstates Challenge To School's Policy Banning Religious Music

Last week the U.S. Third Circuit Court of Appeals in Stratechuk v. Board of Education, South Orange-Maplewood School District, (3d Cir., Oct. 5, 2006), reinstated a lawsuit challenging the banning of religious music by a New Jersey school district. The lower court had dismissed the suit against the school district after reviewing the school's official policy on music that was a matter of public record. The Court of Appeals held that the plaintiff's complaint alleges that the school's actual policy was more restrictive than the one that was publicly available. The complaint alleged a categorical ban on exclusively religious music, enacted with the express purpose of sending a message of disapproval of religion. If that is proven, it would support a challenge on First Amendment grounds. Saturday's New York Times reported on the decision.

Candidate's Religious Beliefs Become Issue In Texas Judicial Race

This week's Texas Lawyer reports that religion has been raised as an issue in a race for appellate court judge for the 6th Court of Appeals in east Texas. An online newsletter issued by the Republican Party of Texas criticized Democratic criticized judicial nominee E. Ben Franks, saying he "is reported to be a professed atheist" and apparently believes the Bible is a "collection of myths." It goes on to say: "Should Franks be elected in November, one would have to conclude that he will hold true to his out of touch 'atheist' belief system and ignore the laws and Constitution of Texas." Franks says he has never professed to be an atheist, but that his religious beliefs are his private business. He says that he does strongly support separation of church and state.

British Court Fines Muslim Cabbie For Refusing To Transport Guide Dog

Britain's Disability Discrimination Act 1995 (Sec. 37) requires all licensed cab drivers to accept individuals with guide dogs as passengers. Saturday's Gulf Times reports that in London, cab driver Abdul Rasheed Majekodumni was fined and ordered to pay compensation to blind passenger Jane Vernon after he refused for religious reasons to permit Vernon to enter his cab with her dog. Muslim tradition considers dogs impure and commands Muslims to avoid contact with them.

Times Series Examines Accommodation of Religion By American Law

The New York Times on Sunday began a 4-part series examining how American religious organizations benefit from laws granting them exemptions and special treatment. The first installment focuses on regulatory exemptions for social service agencies and exemptions from zoning rules. The online version has extensive links to the pleadings in a RLUIPA case pending in Boulder, Colorado. The second installment focuses on reduced employee rights against religious institutions. UPDATE: Part three focuses on property tax exemptions and tax exempt revenue bond financing for religious institutions. Part IV is titled "Religion-Based Tax Breaks: Housing to Paychecks to Books". It focuses on the parsonage exemption for clergy and sales tax exemptions for religious organizations and publications. All the articles in the series are available from links on a web page set up for the series titled In God's Name.

Recent Publications On Church-State; Relgion & Law

From SSRN:

• 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.]

From Bepress:

• 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).

From SmartCILP:

• 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

Wearing of the hijab, or Islamic headscarf, continues to be controversial in a number of countries. Interfax News today reports that, despite a petition signed by 30,000 Muslim women, the government of Kyrgyzstan continues to refuse to permit women to wear headscarves for passport photographs.

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

As previously reported, in Kentucky in April a suit was filed in state court against the University of the Cumberlands, a private religious university located in Williamsburg. The suit challenged the constitutionality of state appropriations to the religiously affiliated institution for the building of a pharmacy school and for pharmacy scholarships. Originally the University filed a motion to dismiss arguing that plaintiffs lacked standing. Today, the Lexington Herald-Leader reports that the motion to dismiss was withdrawn because, if it had been successful, it would have left the validity of the appropriations still in doubt.

Alaska Constitution May Protect Religious Marijuana Use

In Lineker v. State of Alaska, (AK Ct. App., Oct. 4, 2006), an Alaska couple were arrested for possession of marijuana. They defended by invoking the free exercise clause of the Alaska Constitution. Claiming to be members and ordained ministers of the Universal Life Church and the Hawaiian THC Ministry Church, they asserted that oil from the cannabis plant was an essential part of their religion. The trial court rejected the defense, holding that even if the couple held sincere religious beliefs the state had a compelling interest in enforcing its drug laws.

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

The New York Civil Liberties Union yesterday (press release) filed a federal lawsuit challenging a policy that forbids state prison guards from wearing religious head coverings. The suit was brought on behalf of a devout Muslim who was informed that he could no longer wear a kufi while on duty at a state work-release program, even though he had been wearing it for many years without creating any problems. The complaint (full text) charges that the refusal by the State Department of Correctional Services to accommodate religious beliefs of prison guards "stands in sharp contrast to the policies of other agencies". Today's Albany Times Union reports on the case.

Saudis Try Al Qaeda In Shariah Courts

A report from Reuters published today in Qatar's The Peninsula says that Saudi Arabia has begun trying Al Qaeda militants in Shariah courts in which Islamic scholars apply religious law. Deputy Interior Minister Prince Ahmed bin Abdul-Aziz told reporters, "There are Islamic Shariah courts that specialize in these issues. The trials are continuing and ongoing. There are many who have been sentenced and are finished with." Commenting on the militants who began a campaign in 2003 to bring down the royal family by bombing Western housing compounds, he said, "God will judge them harshly. There is no justification at all for attacking peaceful civilians. We are an Islamic country and it is totally unacceptable that their slogan should be Islam."

Democrats Tout Religious Credentials In North Carolina

In western North Carolina where a hotly contested Congressional race is under way, a new political action group, Devout Democrats, plans to run an ad to show that Democrats are religious too. Today's Raleigh News & Observer reports that the ad features former UNC basketball coach Dean Smith saying, "I'm a lifelong Baptist and vote for Democrats. One reason? Democrats are serious about alleviating poverty." the quote is followed by a passage from the Gospel of Matthew about caring for the poor.

European Court Upholds Salvation Army Claim Against Russia

According to a report yesterday by the Associated Press, the European Court of Human Rights has ruled that the refusal by Russia to register the Moscow branch of the Salvation Army after a change in Russian law in 1997 violates the group's rights to freedom of religion and association under the European Convention on Human Rights. The Moscow Justice Department refused to register the group because its founders were foreign nationals. A Moscow district court then ruled on appeal that the Salvation Army branch should be denied registration as a religious body because it was a "paramilitary organization" whose members wore uniforms and served in an "army". The European Court rejected the paramilitary characterization, and held that there was no reason for Russia to treat foreigners different than Russian nationals as to their exercise of religious freedom.

Michigan City Deciding Whether To Move Creche To Private Property

Issues of holiday displays on public property are beginning to surface as the 2006 holiday season approaches. Today's Detroit News reported that in the city of Berkley, Michigan, an ad hoc committee of city council has been studying what to do with the city's traditional nativity scene. For 65 years it has been displayed outside City Hall, but last year the ACLU raised a question about it. The council committee is proposing three alternatives: move the creche to a nearby business property, establish a free-speech zone where any religious groups can display its symbols, or allow a group of religious leaders to rotate the display among churches. Mayor Marilyn Stephan, who supports a move, says that she has received angry e-mails from a coalition of residents calling themselves STAT -- Stopping the ACLU Tyranny-- who dislike any of the alternatives and want to continue the display at City Hall. City Council will discuss the issue at its Oct. 16 meeting.

Indian Court Will Hear Challenge To Jain Fasting Ritual

In India today, the Rajasthan High Court is hearing a Public Interest Litigation challenge to the practice of Santhara, a religious ritual in which seriously ill individuals fast themselves to death. The Shwetambar sect of the Jain community considers Santhara to be the ultimate spiritual achievement. CNN-IBN reports on the case.

More Prisoner Free Exercise Cases From September

In Zarska v. Whitely, 2006 U.S. Dist. LEXIS 69444 (D KS, Sept. 26, 2006), a Kansas federal district court rejected claims by a Seventh-day Adventist inmate that prison food service employees retaliated against him because of his religion by and failing to correct problems with his the special diet he was to receive for religious reasons.

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.

Morocco Ministry Changes Religious Textbooks

Islam on Line reported Tuesday that the Ministry of Education in Morocco, as part of its curriculum reform efforts, has made several changes in a Revival of Islamic Education textbook used in public schools. The changes are an attempt to deter Islamic extremism. The changes include deletion of a verse from the Quran that instructed women to "lower their gaze and be modest ... and to draw their veils over their bosoms". The Ministry also removed a hadith that cursed men dressing in women's clothing and women putting on men's clothing. Finally it deleted a photo of a girl wearing hijab and kissing her mother's hands.