Town Official Refuses To Remove "God Bless America" Banners

Yesterday, the Associated Press reported from Lindenhurst, New York, a Long Island town supervisor rejected requests to take down two signs reading "God Bless America". One of the signs is an 11-foot banner on the front of Babylon town hall reading "Thank You to Our Troops, God Bless America." The second, reading "God Bless America," is on one side of a two-sided sign that also serves as a community calendar. Babylon Town Supervisor Steve Bellone said, "God Bless America is practically our second national anthem and a sacred American motto. I am confident that our display of these signs is not offensive to the Constitution, and therefore I will not remove them."

PrawfsBlawg On Miers Nomination and Religious Issue

Over on PrawfsBlawg, Paul Horwitz has a long and interesting post on the role of religion in the Harriet Miers Supreme Court nomination. Here is his summary of his longer discussion:

Properly speaking, there is no religious test problem here; more broadly, events surrounding this nomination raise questions about transparency and cynicism and make clear that clumsy treatments of the intersection between religion and law are not the sole province of the left, or of the non-religious; and I am disappointed that the Becket Fund, which embraced a broad view of the Religious Test Clause where religion is a disqualification for judicial office, has not been equally liberal in its views of whether religion may permissibly serve as a qualification for judicial office.

Recent Publications Of Interest to Religion Clause Readers

Matthew J. Brauer, Barbara Forrest & Steven G. Gey, Is It Science Yet? : Intelligent Design, Creationism and the Constitution, Spring 2005 Washington Univ. Law Quarterly. [From Dispatches From the Culture Wars blog.]

Jay D. Wexler, Intelligent Design and the First Amendment: A Response, Washington University Law Quarterly (forthcoming). [from SSRN]

Victor C. Romero, An "Other" Christian Perspective on Lawrence v. Texas, Journal of Catholic Legal Studies, Vol. 45, No. 1, 2005. [from SSRN]

An updated version of Steven H. Sholk's article, A Guide to Election Year Activities of Section 501(c)(3) Organizations, is in Practising Law Institute's course materials for "Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings 2005".

Biblical Quote In Courtroom Not Grounds For Reversing Death Sentence

In Malicoat v. Mullin (US Ct. App., 10th Cir., October 11, 2005), the 10th Circuit Court of Appeals rejected a claim of ineffective assistance of counsel raised by a habeas petitioner who had been convicted of murder and sentenced to death. One of petitioner's claims was that his counsel on direct appeal had been ineffective for failing to argue that a carving in the courtroom bearing the Biblical quotation "An Eye For An Eye And A Tooth For A Tooth" deprived him of a fair trial. Petitioner argued that display of the maxim throughout the trial amounted to an Establishment Clause violation. The Court of Appeals held that trial judge's refusal to cover the inscription was not a structural error, and that, as a result, counsel's failure to advance a structural error argument on direct appeal did not constitute ineffective assistance of counsel to petitioner.

Suit Claims Pro-Evolution Materials Online Violate Establishment Clause

In a reversal of usual roles, yesterday the Pacific Justice Institute announced that a parent, Jeanne Caldwell, is filing a federal lawsuit against the University of California at Berkeley and the National Science Foundation over religious statements on the “Understanding Evolution” website that was created with more than $500,000 in federal funding to promote the teaching of evolution. The website directs teachers to statements by seventeen denominations and groups that adhere to the doctrine that there is no conflict between their religious beliefs and evolution. World Net Daily reported today that the website also suggests various classroom activities that use religion to promote the teaching of evolution. The lawsuit alleges that through the website, the state and federal governments are promoting religious beliefs to minor school children in violation of the First Amendment.

U.S. Report on China Finds Religious Freedom Problems

The U.S. Congressional-Executive Commission on China announced the release of its 2005 Annual Report on Oct. 11. The findings in the human rights report report express continued concern over religious freedom in China. In part, the Report said: "The Chinese government continues to harass, abuse, and detain religious believers who seek to practice their faith outside state-controlled religious venues. Religious believers who worship within state-controlled channels are subject to government regulation of all aspects of their faith. In 2005, the government and Party launched a large-scale implementation campaign for the new Regulation on Religious Affairs to strengthen control over religious practice, particularly in ethnic and rural areas, violating the guarantee of freedom of religious belief found in the new Regulation."

Congress created the Commission in 2000 to monitor human rights and the development of the rule of law in China. It is made up of nine Senators, nine House members and five senior Administration officials appointed by the President. The Commission chairman in Nebraska Senator Chuck Hagel.

Ontario Labor Board Upholds Employee's Religious Exemption From Joining Union

Today the publication, Canadian Employment Law Today, discusses an interesting case decided earlier this year by the Ontario Labor Relations Board. Under Canadian labor law, the Labor Relations Board can exempt a worker from a requirement to join a trade union if the worker objects to doing so on religious grounds. This was the first application of the exemption provision to the construction industry. At issue was the sincerity of the worker's beliefs. The Board found that the employee adequately proved that he was entitled to an exemption.

The employee belonged to a fellowship of believers in Jesus Christ, called the Brethren. A central tenet of theirs is that the Bible permits only one assembly-- the believers of Christ. Membership in a union and all other associations violates this tenet of "separation". The employee also believed in the principle of master and bondsman, which also conflicts with belonging to a union. He owed a loyalty to his employer which would be disturbed if he belonged to a union and it acted on his behalf. The principal requires a direct relationship without a union or any other body as an intermediary. To depend upon a union would detract from his belief that salvation is only through Jesus Christ.

The decision, available in full online is Allan v. I.B.E.W., Local 586 (June 15, 2005).

White House Continues To Emphasize Miers' Religious Beliefs

President Bush continues to emphasize Supreme Court nominee Harriet Miers' religious beliefs. Here is an excerpt from his exchange with reporters today.

Q Thank you, Mr. President. Why do people in this White House feel it's necessary to tell your supporters that Harriet Miers attends a very conservative Christian church? Is that your strategy to repair the divide that has developed among conservatives over her nominee?

PRESIDENT BUSH: People ask me why I picked Harriet Miers. They want to know Harriet Miers' background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion. Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas. I remind people that Harriet Miers is one of the -- has been rated consistently one of the top 50 women lawyers in the United States. She's eminently qualified for the job. And she has got a judicial philosophy that I appreciate; otherwise I wouldn't have named her to the bench, which is -- or nominated her to the bench -- which is that she will not legislate from the bench, but strictly interpret the Constitution.

So our outreach program has been just to explain the facts to people. But, more importantly, Harriet is going to be able to explain the facts to the people when she testifies. And people are going to see why I named her -- nominated her to the bench, and she's going to make a great Supreme Court judge.

The Washington Post reports that earlier Family Research Council leader James Dobson had said that White House aide Karl Rove informed him in advance of the choice of Miers and assured him that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

Prisoner Sues Over Revocation of Kosher Diet

The Rocky Mountain News today reports on a law suit filed in federal court against against the Colorado Department of corrections by an Orthodox Jewish prison inmate who lost 30 pounds while subsisting on peanut butter and crackers after he was barred from eating kosher food. The suit, filed by the ACLU, alleges that prison refused to let Timothy Sherline have kosher food for a year as punishment for allegedly violating dining hall rules by putting pats of butter and packets of salad dressing in his pockets. Prisoners needing special religious diets are required to sign an agreement that allows for the diet to be revoked for a year if the inmate commits two dining hall violations. Sherline had also been accused of buying non-Kosher food at the prison commissary, but he said that he purchased it as a gift for his cell mate.

Air Force Withdraws Code Permitting Limited Proselytizing By Chaplains

The Washington Post reported yesterday that the Air Force has withdrawn "for further review" a code of ethics for Air Force chaplains that endorses the practice of evangelizing service members who are not affiliated with any specific religion. That code is separate from the Covenant and Code of Ethics for Chaplains of the Armed Forces, drafted by the private National Conference on Ministry to the Armed Forces. The NCMAF Code contains a similar provision: "I will not proselytize from other religious bodies, but I retain the right to evangelize those who are not affiliated." The Air Force action comes shortly after the filing of a law suit by a Jewish Air Force Academy graduate, a parent of a current cadet, who claims that officers and cadets impose Christianity on others at the Academy. (See prior posting.)

10 Commandment Cases Won't Go Away

Last week, the ACLU of Oklahoma filed suit seeking the removal of a Ten Commandments monument that is on the court house lawn in Haskell County, Kentucky. The Associated Press reported Monday that the 8-foot, $2,500 monument, funded by local residents and church members, was erected last November after approval from the Haskell County Commission. It sits alongside other monuments honoring those who died in the Civil War, the Trail of Tears, World War I and World War II.

Dworkin Gives Lecture on U.S. Religion and Politics

Hamilton College's website yesterday reported on the Truax Lecture in Philosophy delivered October 10 by NYU Professor Ronald Dworkin. The lecture was titled "The New Religious Wars" and focused on religion in American politics. Extensive excerpts from his lecture are set out. His main thesis: there are two possible models for the U.S. Either a community that is committed to the principle of religion but respects people who choose not to practice a religion, or one that considers itself neutral about religion but is tolerant of people’s freedom to practice any religion they choose.

Cert. Denied In Claim of Wiccan To Deliver Opening Benediction

Yesterday, according to the AP, the U.S. Supreme Court denied certiorari in Simpson v. Chesterfield County Board of Supervisors. The 4th Circuit Court of Appeals had upheld Chesterfield County, Virginia's decision to bar a Wiccan spiritual leader from delivering the opening prayer at one of the county Board of Supervisors meetings. Clergy in the Judeo-Christian tradition were invited to deliver prayers at the meetings, but it was determined that Wiccans were ineligible to be included on the list of invitees. The Supreme Court, without comment, refused to review the case.

British Christians Still Fighting Religious Hatred Bill

CNS News reported yesterday that in Britain, Christians began three days of protest hoping to convince the House of Lords to defeat the Racial and Religious Hatred Bill passed by the House of Commons last July. A broad range of groups oppose the bill. Evangelical Christians are concerned about its impact on their freedom to share their faith or question the claims of other religions. Actors and comedians fear it will make mocking religious beliefs a crime. The bill outlaws any written material or public verbal comments "that are threatening, abusive or insulting [and] likely to stir up racial or religious hatred." Violations are punishable by a jail term of up to seven years. Existing race-hate laws provide protection to minorities on the basis of ethnicity, not religion. Jews and Sikhs are considered as ethnic as well as religious groups, and so enjoy legal protection. Muslims as a religious group, however, are not protected under current law.

In the House of Commons Wednesday, Prime Minister Tony Blair defended the proposed law. His remarks are reported by ePolitix.

Massachusetts House Supports "Under God" In Pledge

The Massachusetts House of Representatives has voted 115-31 in favor of a resolution asking the U.S. Supreme Court to reject attempts to remove the phrase "under God" from the Pledge of Allegiance as recited daily in public schools. The Republican today reports that the resolution passed the Massachusetts House Sept. 28, two weeks after a U.S. District Court judge in Sacramento, Calif., ruled the pledge's reference to one nation "under God" violates a child's right to be free from "a coercive requirement to affirm God" in public schools.

High School Coach Quits After Team Prayer Prohibited

Football game prayer is not just a hot-button issue in the South, as I reported in a posting yesterday. It is equally contentious in New Jersey. WABC New York reported yesterday that East Brunswick New Jersey High School football coach Marcus Borden resigned after being told he could no longer lead the team in prayer before football games. A prayer by the team, led by the coach, giving thanks and asking for victory had been a 23 year tradition at the high school. The school said several parents of various religious backgrounds had complained about the prayer.

Michigan Pondering 10 Commandments Display

WLNS Lansing reported yesterday that Michigan legislators and the governor are beginning to consider whether there is a constitutional way of displaying the Ten Commandments at the state Capitol. A committee to consider the matter is scheduled to meet today. The committee will also meet later on to hear interested individuals testify on the issue.

Botswana Group Resists Measles Vaccination On Religious Grounds

In late September, All Africa.com reported that a religious group in Botswana were preparing to resist the government's national measles immunization and Vitamin-A campaign aimed a children in the country. The resistance comes from some members of the Johane Church of God (the Zezuru). Raphael Panganayi said that his followers would resist the vaccination program, saying that it would mean breaking their church rules. "I will never, under any circumstances, have my children immunised because doing so would be committing a sin. Why should I have them vaccinated when our church teaches us that the use of any kind of medicine is wrong?"

The threatened resistance seems to have been carried out. On Monday, Daily News Online reported that since the start of the immunization campaign, which was launched by Botswana's Health Minister Sheila Tlou on October 3, a majority of Bazezuru were reluctant to take their children for immunization.

City Council Resolves To Keep Prayer

The Anderson Independent-Mail yesterday reported that the City Council of Anderson, South Carolina wants to preserve its tradition of rotating among members of Council the responsibility for opening each Council meeting with a prayer, or choosing not to have a prayer, despite ACLU objections. Anderson Mayor Richard Shirley opened Monday night’s City Council meeting according to his custom of reading from a collection of invocations of a former U.S. Senate chaplain. The prayer ended with the words: "Through Jesus Christ Our Lord." Shirley insists (text of remarks) that his right to pray to Jesus insures the rights of any member of Council to pray according to his or her religious beliefs as well. He says he will resign if he is not permitted to continue to pray to Jesus. Council passed a resolution unanimously adopting a Policy that continues its long-standing practice of opening sessions with prayer. The resolution said: "The City Council expressly states that this moment of prayer should not be viewed as an attempt to establish a religion. Attendance during the prayer by a council member or the general public is not a requirement to participate in the City Council meeting."

Women In Bahrain Press For National Law On Personal Status

In Bahrain, the Supreme Council for Women (SCW) has launched a campaign for a new law to govern child custody cases, divorces, inheritances and other family disputes. According to Monday's Gulf Daily News, currently these matters are handled by religious Sharia courts. A study by the SCW and the Bahrain Centre for Studies and Research found that women were being treated unfairly by the current Sharia judicial system.

Paper Profiles Richard Land

Today's Boston Globe carries a long and interesting profile of Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission. Here is an example of the Globe's description of Land: "To his liberal foes, Land is easily the most confounding of religious right leaders. At least as steeped in Western history as biblical verse, this fan of Jane Austen and Thomas Wolfe boasts a doctorate of philosophy from Oxford and readily slips out of Southern Baptist vernacular into the language of the media elite. He frequently quotes Winston Churchill and tops the guest call-list when the subject on Washington's Sunday TV talk shows turn to faith and values. Last year he logged 160 media interviews. He counts Democrats among his best friends."

Israeli Government Funds Religious Ads; Shinui Objects

The Israeli government is funding an advertising campaign encouraging secular Israelis to participate in prayer and discussions this week on Yom Kippur eve at 250 community centers across the nation. The Jerusalem Post reported yesterday that the ads have become the subject of some controversy. Rabbi Michael Melchior, Deputy Minister for Israeli Society and the World Jewish Community, said that the aim of the ad campaign was to emphasize the relevance of Jewish holidays for all. However, MK Avraham Poraz (Shinui) called on the government Sunday to halt state funding for the ad campaign. His letter to Prime Minister Ariel Sharon said, "It is not the state's role to use tax payer's money to finance a campaign that encourages people to embrace religion".

Professor Shimon Sheetrit of the Hebrew University, a legal expert in religion-state issues said, "We are not in a state like the US that has a non-establishment clause or like France that is aggressively secular. We are in Israel, which is Jewish democratic state and provides funding for religious activity. About 95% of Israeli Jews fast on Yom Kippur. That is a clear consensus."

Football Game Prayers Persist In A Few Alabama High Schools

The Birmingham, Alabama News reports today that despite the U.S. Supreme Court's 2000 decision in Santa Fe Indepen. School Dist. v. Doe, in some parts of Alabama public schools allow students or ministers to pray over stadium public address systems before high school football games. ACLU of Alabama attorney Robert Varley says, "It's difficult for someone to come forward and complain about that kind of thing. They would be ostracized by the community. " After a 1997 federal court ruling against such prayer was issued by an Alabama federal district court, most schools in the state replaced pre-game prayers with moments of silence. However a few Alabama high schools have continued prayers over the public address system and almost dare anyone to try to stop them,

Senate To Hold Hearings On Saudi Literature In U.S. Mosques

The New York Sun reported last week that the U.S. Senate Judiciary Committee has scheduled hearings for October 25 to examine reports that documents inciting Muslims to acts of violence and which promote hatred of Jews and Christians were being distributed by the Saudi Arabian government to mosques in the U.S. The materials were first called to public attention in a report issued earlier this year by Freedom House’s Center for Religious Freedom. The Senate hearings are part of the Committee’s consideration of the Saudi Arabia Accountability Act of 2005 (S. 1171).

Tribes Again Challenging Snow Bowl Development

Despite the 1983 D.C. Circuit opinion in Wilson v. Block that permitted development of the Snow Bowl ski area on the San Francisco Peaks in the Coconino National Forest, several Native American tribes are trying again. The Arizona Daily Sun reported yesterday that the Hopi, Navajo and Hualapai are suing to protect their sacred sites by preventing Snow Bowl from making snow there with reclaimed wastewater. The tribes claim that now the Religious Freedom Restoration Act gives their religious practices greater protection that they were awarded in the 1983 case.

School Prayer Dispute In Korea

Issues of school prayer are not limited to the United States. Sunday’s Korea Herald reported on a lawsuit pending in a Seoul Korea District court by a high school student raising religious freedom claims in challenging his expulsion from school. Kang Eui-seok, an agnostic, refused to attend high school chapel services, which along with a course in Christian education, is required. Supporting the student’s case are the Korea Institute for Religious Freedom, Christian Solidarity for Justice and Peace, Citizen Coalition for Religious Freedom in Schools, and Parents' Coalition for Realizing Human Education.

Another Move Against FLDS Control Of Arizona City

In another step against the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway polygamist Mormon sect, Arizona's attorney general is seeking a federal civil rights review of the entire police force of Colorado City. The development is reported in an AP story from Friday carried by Officer.com. It is claimed that the FLDS dominates Colorado City and adjacent Hildale, Utah. (See prior posting.) Other law enforcement officials and citizens claim that the Colorado City police force operates under direction of FLDS. Young men who had clashed with leaders of FLDS have complained of being threatened with arrest and forced to leave the city. There are also claims that the police have ignored complaints from women who were forced into marriage or subjected to violence.

Minority Groups Concerned Over Romania's Proposed Religion Law

Today the American Daily reports that minority religious communities in Romainia are concerned about the current draft of a new religion law and the way it has been rushed to Parliament under an "emergency procedure." The proposed law divides religious groups into three different categories, each with different rights. Eighteen recognized "religious denominations" or "cults" enjoy the greatest rights. Those with fewer than about 22,000 members can register as "religious associations" with lesser rights, while those with under 300 members can only function as "religious groups" which have no legal status. Religious activity by unregistered communities will be legal.

District Court Upholds RLUIPA Against Various Constitutional Challenges

In Gooden v. Crain, 2005 U.S. Dist. LEXIS 22744 (ED Tex., Oct. 5, 2005), a Texas federal district court upheld the Religious Land Use and Institutionalized Persons Act against a number of constitutional challenges. Pointing to decisions of various Courts of Appeal, the court rejected commerce clause, spending clause and Tenth Amendment challenges to the statute.

Prisoner's Protest of Removal As Sweat Lodge Leader Rejected

In Wills v. Reighard, 2005 U.S. Dist. LEXIS 22575 (WD Mo., Oct. 5, 2005), a Missouri federal district court rejected a prisoner's free exercise and equal protection claims growing out of the prisoner's removal from a leadership position in the prison's Native American Sweat Lodge. Tensions had developed among inmates who participated in the prison's Native American Spiritual Group. Plaintiff was regarded as unqualified to serve as Lodge Leader because he was not Native American, was not an enrolled member of a tribe, listed his religious preference as Jewish, and was unfamiliar with the songs necessary to properly perform the Sweat Lodge ceremony. The court held that plaintiff had no constitutional right to hold a leadership position in the religious group. It also rejected plaintiff's racial discrimination claims.

Vatican Entitled To Foreign Sovereign Immunities Act Protection

A federal court in Kentucky on Thursday dealt a setback to victims of sexual abuse who are attempting to bring a class action against the Vatican claiming that it covered up sexual abuse by priests. The Associated Press yesterday reported on the details of Judge John G. Heyburn II's opinion. The court ruled that the Holy See is a foreign state and can be sued only under the strict requirements of the Foreign Sovereign Immunities Act (FSIA). That Act permits suits against foreign governments in limited circumstances. The lawsuit argues that the Holy See engaged in both commercial and harmful activity in the United States, both of which are grounds permitting a suit to be brought under the FSIA. In this case, however, the court ruled that initially the plaintiffs failed to strictly follow the service of process requirements of the FSIA. Instead of serving the Vatican Foreign Minister, Archbishop Giovanni Lajolo, plaintiffs served his boss, Cardinal Angelo Sodano. The court gave plaintiffs 60 more days to effect proper service of process.

DOE Withdraws Funding For Alaska Christian College

On Friday, the U.S. Department of Education withdrew around $450,000 of Congressionally earmarked funds from Alaska Christian College after a federal investigation found that the school has been spending the money on religious instruction. The Anchorage Daily News reported that a letter from the DOE's Assistant Secretary for Postsecondary Education said that the school failed to separate religious proselytizing from its avowed purpose of preparing rural Native students for college life. The ruling by the Department of Education came as part of a settlement of a lawsuit against it challenging the constitutionality of federal funding for the school. (See prior posting.)

"Love In Action" Claims Licensing Violates Its Free Exercise Rights

Friday's Washington Blade reports that Love In Action, a Memphis, Tennessee Christ-centered ministry that operates group homes offering treatment designed to turn gay people straight, has filed a federal lawsuit against the state of Tennessee. The state wants the group to be licensed as a mental health supportive living facility if it has more than one mentally ill person in residence. Love In Action claims that it does not offer mental health care, but instead ministers from a Christian perspective. Its website says that it exists to help people align their behavior with their faith. The suit alleges that requiring the group to obtain a license would violate its rights to free speech and free exercise of religion. Love In Action is represented by the Alliance Defense Fund.

Ministerial Exception Applied To FMLA Claim

In Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 U.S. Dist. LEXIS 22546 (ED Pa., Oct. 4, 2005), a Pennsylvania federal district court applied the “ministerial exception” to dismiss a claim by a church Music Director under the Family and Medical Leave Act of 1993. The court held that the ministerial exception, required by the First Amendment’s Free Exercise and Establishment Clauses, applies to all federal employment statutes, not just to Title VII and the ADA.

Weida Transferred Out Of Air Force Academy

An officer at the center of the U.S. Air Force Academy's problems with religious prosetylization, Brig. Gen. Johnny Weida, is leaving the Academy and being transferred to Wright Patterson Air Force Base in Ohio. A report today on Military.com points out that the Commandant of Cadets is leaving the school one month after he was cleared of an allegation that he used his position to proselytize non-Christian cadets. (See prior posting).

Final Opinion Strikes Down Transfer of Mt. Soledad Cross

Today's San Diego Union-Tribune reports that a Superior Court judge in San Diego, California issued a final ruling mirroring her tentative opinion last month finding the transfer of the Mt. Soledad Cross and the La Jolla land surrounding it to be unconstitutional. (See prior posting.) The full opinion in Paulson v. Abdelnour finds the transfer to be an unconstitutional preference of religion that violates Art. I, Sec. 4 of the California Constitution, and an unconstitutional aid to religion in violation of Art. XVI, Sec. 5 of the California Constitution.

In Mississippi, Religious Arguments Intrude Into Casino Legislation

In the wake of Hurricane Katrina, Mississippi legislators are considering allowing the state's devastated offshore gambling casinos to rebuild on land. The North County Times today reports that the House passed a bill, and the Senate is now considering it. The new law would allow casinos to build up to 800 feet onshore, rather than restricting them to coastal waters as before. Some legislators though are raising religious objections to the gambling bill. The Mississippi Baptist Convention is one of the strongest anti-casino forces in the state. About 50 Baptist pastors from across Mississippi came to the Capitol in Jackson last week to urge legislators not to allow casinos on land.

Court Refuses To Dismiss Establishment Clause Claim In Salvation Army Case

In Lown v. Salvation Army, Inc., 2005 U.S. Dist. LEXIS 22260 (Sept. 30, 2005), a New York federal district court dismissed constitutional claims brought by employees of the Salvation Army challenging the organization's requirement that employees not act inconsistently with the teachings of the religious group. It found that any religious discrimination against the employees could not be attributed to governmental action.

However the court permitted a taxpayers' Establishment Clause claim against governmental defendants in the case to proceed. The City of New York and a number of other governmental entities contract with the Salvation Army for the provision of social services. Plaintiffs alleged that government funds were used to finance the Salvation Army's religious discrimination, and that government funds supported indoctrination of clients whom the government compelled to participate in the Salvation Army's Social Services for Children programs.

AF Academy Sued Over Religious Proselytization

The controversy over Christian proselytization at the U.S. Air Force Academy (see prior posting) has finally found its way into the courts. The Associated Press reports that yesterday in Albuquerque, New Mexico, a Jewish father of a recent graduate and a currently enrolled Air Force Academy cadet sued the Air Force. The father, Mikey Weinstein, is himself an Academy graduate. An outspoken critic of the situation at the Academy, Weinstein claims that senior officers and cadets illegally imposed Christianity on others at the school. [Thanks to Brad M. Pardee via Religionlaw for the information.]

Wiccan Students May Wear Pentacles; Club Still In Doubt

The Decatur Alabama Daily reported earlier this week on progress Wiccan students, led by 16-year old Ricky Shepard, are making in Morgan County, Alabama's Priceville High School. They have been seeking the right to wear pentacles (Wiccan symbols) and to form a Wicca club for the estimated six students who practice Wicca. School authorities have come around on the wearing of pentacles. The school board's attorney said, "In the beginning, we really didn't know anything about (Wicca). . . . It's a learning process, something we had to look into." He said that after the boy's mother assured them Wicca was not gang-related or Satanic, administrators lifted the ban on pentacles. The principal said he had mistaken the necklace's symbol for a pentagram, an upside-down version that symbolizes Satanism.

Quebec Court Refuses To Enforce Husband's Agreement To Give Divorcing Wife a "Get"

According to today's Canadian Jewish News, the Quebec court of Appeals has overturned a lower court decision that had enforced an agreement that a husband had signed obligating him to appear before a Jewish religious court after receiving a civil divorce. The appellate court ruled unanimously that Superior Court justice Israel Mass was wrong when he decided that husband Jessel (Jason) Marcovitz, entered into a contract that is civilly enforceable, despite its religious nature. The Court of Appeals held that the federal Divorce Act does not give courts jurisdiction to require the issuance of a "get", the Jewish religious divorce, no matter what the divorcing parties have consented to, because courts do not have the right to enforce a matter of religious obligation. The lower court had awarded Marcovitz's wife $47,500 in damages because her husband had delayed for 15 years in giving her a "get", making it impossible during that period for her to remarry according to traditional Judaism.

Alaska Senator Wants To Fund Religious Materials For Homeschoolers

In Alaska, home-schooled students receive state funds to pay for supplies. Now an Alaska state senator is urging a change in the rules so that students can use that money to buy religious textbooks and religious software to use along with secular material. Tuesday's Anchorage Daily News reported that Senator Fred Dyson raised the issue at a recent state Board of Education meeting. "If the material meets academic standards, then it ought not to be disqualified just on the basis that it has some religious connotations," Dyson said.

Roy Moore Will Run For AL Governor

Church-state issues are certain to be at the center of the Alabama Republican gubernatorial primary on June 6 next year. The Birmingham News reports that former Alabama Supreme Court Chief Justice Roy Moore announced on Monday before a cheering home town crowd that he is running for Governor in 2006. (See prior posting.) Moore was removed from office as Chief Justice after he refused to take down a 5,300 pound monument of the Ten Commandments from the Alabama Supreme Court building's rotunda.

State's Placing Children In Overtly Religious Facility Is Establishment Violation

Last week, in Teen Ranch v. Udow, 2005 U.S. Dist. LEXIS 22164 (WD Mich., Sept. 29, 2005), Judge Robert Bell issued an important opinion finding Establishment Clause problems with Michigan's Family Independence Agency (FIA) contracting for a faith-based organization to provide youth residential services. Teen Ranch is an overtly Christian facility that promotes a Christian worldview and encourages conversion to faith in Christ as part of its services to youth. FIA refused to continue to place children who are wards of the state with Teen Ranch unless the Ranch changed its practice of imposing its religious beliefs into its daily treatment and service plan activities. Teen Ranch sued, asserting violation of free speech, free exercise of religion, due process and equal protection. The court rejected all of these contentions.

The court recognized that the U.S. Supreme Court has permitted government funds to flow to religious organizations when a subsidy is given by reason of an individual who has used true private choice in selecting that organization. Here, the state places children in Teen Ranch and merely gives them the opportunity to opt out if they object to the religious nature of the program. The court held that this was not sufficient to satisfy the test of true choice required to avoid an Establishment Clause problem.

Family News In Focus today reported that Teen Ranch is considering an appeal to the Sixth Circuit. Teen Ranch claims that the FIS's action amounts to religious discrimination, according to Agape Press.

10th Circuit Upholds Land Sale By City To Mormon Church

On October 3, the U.S. 10th Circuit Court of Appeals decided Utah Gospel Mission v. Salt Lake City Corp. The case involved the 1999 sale by Salt Lake city of a block-long section of Main Street to the Mormon Church so it could build a Plaza on it. The Plaza was to serve as an ecclesiastical park. The city hoped the Plaza would stimulate downtown pedestrian traffic and promote business. The Church prohibited demonstrations, leafleting and picketing on the Plaza. The sale was challenged on free expression and establishment clause grounds, and the court rejected both challenges. It found that the arrangements had a secular purpose , did not have a primary effect that advanced religion, and did not create excessive entanglement between church and state.

New Articles Of Interest Online

From the University of Chicago:
Daniel L. Chen and Jo T. Lind, The Political Economy of Beliefs: Why Do Fiscal and Social Conservatives/Liberals Come Hand-In-Hand?


From Bepress:
Gonzaga Law Professor Sharon Keller, The Rules of the Game: "Play in the Joints" Between the Religion Clauses

Max E. Dehn, How It Works: Sobriety Sentencing, the Constitution and Alcoholics Anonymous. A Perspective from AA's Founding Community

How Much of An Issue Will Miers' Religion Be?

The appropriateness of considering a Supreme Court nominee's religious beliefs in Senate nomination hearings and deliberations is now a high agenda item. Among the little know about nominee Harriet Miers, her religious beliefs are now a matter of public record. Yesterday, papers like the Washington Post and New York Times ran long stories on Miers' spiritual journey from Catholicism to becoming a born-again Christian active in a Dallas evangelical church.

Her former law firm colleague, Nathan L. Hecht, now a justice on the Texas Supreme Court recounted the event: "She decided that she wanted faith to be a bigger part of her life. One evening she called me to her office and said she was ready to make a commitment" to accept Jesus Christ as her savior and be born again, he said. He walked down the hallway to her office. There amid the legal briefs and court papers, the two "prayed and talked".

Cert. Denied In Bible-In-Jury Room Case

Today, the U.S. Supreme Court denied certiorari in Colorado v. Harlan. Thus it refused to review the 3-2 decision by the Colorado Supreme Court that had held that using a Bible in the jury room during deliberations undermines a capital defendant's right to a fair trial. The denial of cert. and reactions to it are reported today by the Christian Science Monitor.

New Supreme Court Nominee-- Any Clues On Her 1st Amendment Religion Clause Views?

Today President Bush announced his intent to nominate White House Counsel Harriet Miers to fill Justice Sandra Day O'Connor's seat on the U.S. Supreme Court. Little is known about her views on many legal issues, including church-state questions. The President's announcement included the fact that among the community organizations in Texas with which she was involved was Exodus Ministries. That group, part of Preston Hollow Presbyterian Church in Dallas, is described as follows on its website:

Exodus is both a challenging and gratifying ministry that seeks to encourage ex-offenders, to reunite them with their families, and to empower them to become self-sustaining, productive, Christ-centered members of society. Individuals are needed to help in the Exodus offices to serve as Bible Study leaders, computer instructors, and tutors/mentors. Professional experts, such as doctors, dentists and lawyers, are welcome at Exodus to help with both guidance and more immediate needs.

Interestingly, also in listing the community groups in which Miers was involved, the President referred to the full name of one, the Young Women's Christian Association, even though nationally the organization formally calls itself the "YWCA".

President Wishes Happy New Year As Rosh Hashanah Approaches

On Friday, President Bush issued a Presidential Message sending greetings to all who will be celebrating Rosh Hashanah beginning tonight.

Moment of Silence Seems To Be Working Constitutionally in Indiana

In Indiana public schools, a new law that took effect this fall requires a moment of silence for students at the beginning of the day. A Fort Wayne Journal Gazette reporter visited 5 different schools to see how the mandate is being carried out "in the trenches". Her detailed report published Sunday is interesting, and does not suggest that the moment of silence is being used to encourage prayer, as some feared.

NYC Urged To Ban Ritual Male Circumcision For Infants

New York City's uneasy arrangement with its Orthodox Jewish community which led the city to transfer to a Jewish religious court the issue of the safety of a particular method of circumcision (see prior posting) has led anti-circumcision advocates to urge the City to take much more drastic action. Medical News Today on Sunday reported that activist Matthew Hess of San Diego is urging New York to ban medically unnecessary circumcision of children under 18 since they are unable to give their consent. J. Steven Svoboda, Executive Director of Attorneys for the Rights of the Child said, "Removing healthy, functional tissue from a nonconsenting minor in the name of religion or preventive medicine is assault' and urged that male circumcision be banned just as female circumcision already is.

Post 9-11 Actions Generate Free Exercise Claims

Two free exercise cases growing out of the federal government’s war on terror have recently been decided.

Elmaghraby v. Ashcroft, 2005 U.S. Dist. LEXIS 21434 (E NY, Sept. 27, 2005), involved two Muslim men from Egypt and Pakistan, respectively, who were arrested on criminal charges in the months following 9-11, and detained at the Metropolitan Detention Center ("MDC") Special Housing Unit in Brooklyn. Among their many claims of mistreatment during their confinement were claims of harsher treatment because of their religious beliefs and deliberate interference with their religious practices. Officers banged on their cells while they were praying, routinely confiscated their copies of the Koran, and refused to permit them to participate in Friday prayer services with fellow Muslims, making comments such as "No prayer for terrorists". The court refused to dismiss most of these claims insofar as they were based on alleged violations of the Constitution, but if found that defendants are entitled to qualified immunity insofar as claims allege RFRA violations.

The second case is Islamic American Relief Agency v. Unidentified, 2005 U.S. Dist. LEXIS 21570 (Sept. 15, 2005). The case involves a challenge to action taken by the United States under anti-terrorism legislation to block the assets of the Islamic American Relief Agency. One of the claims was that by blocking its assets, the government interfered with the free exercise of religion of its donors who used the organization to fulfill their religious obligations as Muslims to engage in Zakat (humanitarian charitable giving). The court dismissed the free exercise claim both on the merits and because the organization did not have standing to assert it.

Another 10 Commandments Monument Can Remain

The Ten Commandments cases don't stop. The Bismarck, North Dakota Tribune reported Friday that a federal district court judge in Fargo held last week that a Ten Commandments display outside Fargo City Hall could remain. U.S. District Judge Ralph Erickson issued a 20-page opinion saying the monument conveys both secular and religious ideals.

UPDATE: The opinion in the case is now available. Twombly v. City of Fargo, 2005 U.S. Dist. LEXIS 21967 (D ND, Sept. 29, 2005).

Two More Prisoner Free Exercise Cases

In Durham v. Department of Corrections, 2005 U.S. Dist. LEXIS 21436 (ED Pa., Sept. 28, 2005), a Pennsylvania federal trial court held that a prisoner’s First Amendment religion claim growing out of a search of his cell should be dismissed. The officers searching the cell tore down portraits of Elijah Mohammad and Rev. Louis Farrakahn and made disparaging comments about the religion of Islam. The court found that the portraits were not central to the plaintiff’s religious worship, and tearing them down had no substantial impact.

In Shaheed-Muhammad v. Dipaolo, 2005 U.S. Dist. LEXIS 21539 (D. Mass, Sept. 28, 2005), plaintiff alleged violations of state and federal religious freedom protections when prison officials, confiscated a religious medallion, failed to provide him with vegetarian meals in accordance with his religious practices; denied him access to The Five Percenter, a newspaper published by the Nation of Islam; and transferred him to another facility in retaliation for asserting his religious freedoms. The court rejected the retaliatory transfer claims, but allowed his other claims to move forward on at least some of the grounds which plaintiff had asserted.

House of Representatives Recognizes Religious Concerns

On Thursday, the U.S. House of Representatives covered all of its religious bases. It agreed to take off on Tuesday and Wednesday for Rosh Hashanah. It passed House Concurrent Resolution 245 "Expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States". Also Representative Eddie Johnson introduced House Resolution 472 "Recognizing the commencement of Ramadan, the Islamic holy month of fasting and spiritual renewal, and commending Muslims in the United States and throughout the world for their faith".

Eritrea Sanctioned, Saudis Given More Time On Religious Freedom

Last week, according to the Associated Press, the State Department notified Congress that Secretary of State Condeleeza Rice had banned commercial export of certain defense articles to Eritrea because of its poor record on religious freedom. This is the first time that sanctions have been imposed under the International Religious Freedom Act. The African country was classified a year ago along with Saudi Arabia and Vietnam as a "country of particular concern" because of its religious freedom record. (See prior posting). However, the State Department also authorized a 180-day waiver of action against Saudi Arabia, "in order to allow additional time for the continuation of discussions leading to progress on important religious freedom issues." The U.S. Commission on International Religious Freedom urged the State Department to continue to press the Saudis.

Osaka Court Goes Other Way; PM's Shrine Visit Unconstitutional

Contradicting a ruling by a Tokyo court the day before (see prior posting), on Friday, according to the Associated Press, the High Court in Osaka, Japan ruled that Prime Minister Junichiro Koizumi's 2004 visits to a Tokyo war shrine violated the constitution's required separation of religion and state. In contrast to the Tokyo court ruling, this court held that the prime minister's act was a public act, not a private one. However, the court rejected the Taiwanese plaintiffs' demands for damages of $88 each.

New Publications

The September issue of Law and Society Review (Vol. 39, pp. 677-722) has published a series of articles under the caption Forum: Lloyd Burton's Worship and Wilderness: Culture, Religion, and Law in Public Lands Management. Among the articles in it are William Blatt, Holy River and Magic Mountain: Public Lands Management and the Rediscovery of the "Sacred in Nature", and Winnifred Sullivan, Advocating Religion on Public Lands: Native American Practice or Buddhist Sermon? [From SmartCILP].

Schools Face Various Church-State Issues This Year

While much of the country is focused on issues relating to the teaching of evolution in public schools, a number of other church-state issues top the agendas of various public schools around the country. Here are three examples:

In Raleigh, North Carolina, an activist Christian group has complained that an elementary school unconstitutionally promotes "New Age" beliefs through its stress-reduction class. Elementary school students were asked to do breathing exercises, chant and use their "life forces". The Sacramento Bee reports on the dispute. The organization promoting the classes, Rites of Passage Youth Empowerment Foundation, says it is not involved in religion; it merely enhances students' learning practices.

In Anna, Illinois, a local pastor is collecting signatures to urge the city's junior high school to put back up a painting of The Last Supper and two portraits of Jesus that the school took down earlier this school year. The Southern yesterday reported that the pictures were removed after Americans United For Separation of Church and State threatened to sue. Now the Alliance Defense fund threatens to sue if the school does not return the pictures to its hallway.

And in Kirkland, Washington, Lake Washington High School has its plate full of church-state issues. The Stranger reports that Antioch Bible Church, a conservative anti-gay congregation, rents the school's gym every Sunday to use for religious services. The school district's sex education program is supplemented by an abstinence presentation from a group called SHARE—an affiliate of the religiously based group Life Choices. The SHARE lecture is taught by volunteers, some of whom are recruited from Antioch Bible Church. Then last June, students in the pre-school program that is affiliated with the high school all received a copy of "10 commandments" at their graduation-- not the traditional ones, but still ones that were religious. They instructed parents to "please take me to church regularly" and to realize their kids are "a special gift from God."

Bush Urged To Overrule FAA On Cemetery Seizure

Two dozen religious and civil rights groups yesterday wrote President Bush urging him to respect the Religious Freedom Restoration Act and prevent federal approval for an airport expansion plan at Chicago's O'Hare which would destroy St. Johannes, an active religious cemetery. The letter read in part:

FAA stands poised to grant final approval and federal funds to an airport plan that would dig up the graves at St. Johannes, despite the availability of feasible options that would address flight delays at O’Hare and save the cemetery. Most upsetting, the FAA is about to do this despite its concession that the desecration of St. Johannes would substantially burden the religious exercise of the Church and those who have family and friends buried in St. Johannes’ sacred ground. In other words, the FAA has admitted that its actions establish a prima facie violation of the Church’s rights under RFRA, but insists that reducing flight delays justifies this burden.

The Becket Fund which represents the cemetery and the church that operates it issued a release yesterday on the controversy. The Illinois legislature has already enacted the O'Hare Modernization Act, excluding the cemetery from state law that protects other cemeteries from seizure.

Japan Prime Minister Did Not Violate Constitution In Shrine Visit

Reuters yesterday reported that in Japan, a Tokyo appellate court has upheld the dismissal of a suit against Prime Minister Junichiro Koizumi challenging his visits to a war shrine. The plaintiffs had argued that the visits to the Shinto shrine violated Japan's constitutional separation of religion and the state. The court ruled, however, that his visits were private acts.

Groups Urge USCIRF To Designate Turkmenistan

A coalition of non-governmental organizations on Wednesday wrote Secretary of State Condoleezza Rice, asking her to designate Turkmenistan as a "country of particular concern" this year under the International Religious Freedom Act of 1998. The full text of the letter has been published by Human Rights Watch. The groups contend: "The state no longer simply controls religion; it is actively trying to eliminate even state-controlled religions in order to establish a new religion based on the personality of the president." Turkmenistan is already on the Watch List of the U.S. Commission on International Religious Freedom.

North Carolina Moves To Dismiss ACLU's Oath Case On Standing Grounds

In North Carolina, the ACLU has sued to challenge state court policies that only permit use the King James version of the Bible in administering oaths. The courts do not allow other holy texts, such as the Quran, to be used instead. (See prior posting). Today's Winston-Salem Journal reports on a motion to dismiss on standing grounds that has recently been filed by the state. The suit was filed on behalf of the ACLU's 8,000 members statewide, some of whom are Muslims and Jews who would prefer to use religious texts other than the Christian Bible for courtroom oaths. The state, however, has moved to dismiss the suit because no named plaintiff has in fact been denied the opportunity to take an oath on a non-Christian book.

Moving Demonstrators From Church Does Not Endorse Religion

A Kentucky federal district court has rejected an Establishment Clause challenge by animal rights protesters who were forced to move the location of their picketing. In Friedrich v. Southeast Christian Church of Jefferson County, 2005 U.S. Dist. LEXIS 21218 (WD Ky., Sept. 22, 2005), activists associated with People for the Ethical Treatment of Animals attempted to demonstrate in front of a Louisville, Kentucky church on Christmas eve. Executives of the parent company that owned Kentucky Fried Chicken belonged to the church; demonstrators wished to encourage KFC to treat chickens more humanely. Police required demonstrators to move across the street. The demonstrators sued the Louisville police and the church, alleging numerous causes of action. In dismissing their Establishment Clause claim, the court held that the city did not endorse religion merely by moving the demonstrators away from the church on Christmas eve. It also dismissed civil rights claims against the church, finding that it was not a state actor.

China Limits Religious Speech On the Internet

According to a Sept. 26 press release from Reporters Without Borders, Chinese authorities have published new rules limiting postings by bloggers and website managers. The new edict, issued by the State Council Information Bureau and the Ministry of Industry and Information, brings together in one place a number of prior edicts, and adds some new prohibitions as well. The Beijing News has reported that there are 11 topics that are off limits for Internet transmission. One of those topics is any message that violates national policies on religion, or that promotes the propaganda of sects and superstition. The latter references are presumably to the Falungong movement, thirty of whose members are already in Chinese jails for posting news on the Internet.

Law Favoring Churches Teaching Family Values Questioned

According to today's San Diego Tribune, the mayor of Chula Vista, California is uncomfortable with a 14-year old city ordinance that was designed to set aside affordable land for churches, social service centers, day care facilities and small parks in the city's new eastern neighborhoods. Developments of over 50 acres must set aside land for "community purpose facilities", defined in part as churches that teach "traditional family values". In the 1980's, when the ordinance was enacted, the city was battling, for example, with a sex club owner who claimed his facility was a church. At the mayor's request, the city attorney's office is looking at removing the language referring to traditional family values.

Another Challenge To A Cross On City Property

There seems to be a rash of cases lately raising Establishment Clause challenges to crosses on public property. (See prior postings 1, 2). Jacksonville, Florida's WAWS Fox30 reported yesterday on yet another such lawsuit. In Starke, Florida, a cross has been on top of the city's water tower for over 20 years. Now Lon Bevell, an atheist, along with American Atheists, Inc., is suing the city claiming that the cross is unconstitutional. He says that when he complained to the city about the cross, one official told him it was not a cross, but was the letter "T".

Lot Size Requirement Only For Churches Violates RLUIPA

In Victory Family Life Church v. Douglas County, (Sept. 20, 2005), a Georgia trial court found that the Religious Land Use and Institutionalized Persons Act was violated when the county insisted that churches must be built on lots of at least 3 acres in size. The county articulated no compelling interest for imposing this zoning requirement on religious institutions when it had no similar requirement for any other kind of institution. Alliance Defense Fund yesterday issued a release praising the decision.

Two Rastafarian Prisoner Cases Decided

In Williams v. Snyder (Sept. 26, 2005), the U.S. Seventh Circuit Court of Appeals held that the trial court had applied the wrong standard in dismissing as frivolous a Rastafarian prisoner's claim that requiring him to cut his dreadlocks in order to leave his cell violated his religious free exercise of rights. The trial court's balancing of interests is appropriate only in a motion for summary judgment after additional fact finding. It is not the standard to be used for screening on the pleadings alone.

In Clark v. Briley, 2005 U.S. Dist. LEXIS 21350 (ND Ill., Sept. 26, 2005), an Illinois federal district court held that forcing a Rastafarian prisoner to cut his dreadlocks was the least restrictive means of achieving prison safety and security. His hair could serve as a hiding place of weapons or drugs, a significant risk considering this prisoner's past history. Therefore the court rejected the prisoner's claims under the Religious Land Use and Institutionalized Persons Act and under the First Amendment and granted summary judgment to the defendants.

New Organization Will Counter Religious Right Online

Frederick Clarkson this week has an interesting posting on a new group formed to counter the religious right. Called DefCon, short for "Campaign to Defend the Constitution: Because the Religious Right is Wrong", the group is based in Washington, D.C. It will conduct an Internet campaign modeled on the successful strategy of MoveOn.org. DefCon's website says "We will fight for the separation of church and state, individual freedom, scientific progress, pluralism, and tolerance while respecting people of faith and their beliefs." Links to the webswite and the DefCon blog have been added to the sidebar list on Religion Clause.

Denominational Disputes Over Gay Clergy Are Moving To Civil Courts

Splits within Protestant denominations on the ordination of gay clergy are now finding their way into civil courts. In Ridgebury, New York, a small Presbyterian congregation is breaking away from the Presbyterian Church (USA) in protest of the denomination's willingness to ordain gays. The Church at Ridgebury however is trying to keep its church building and property in the process. The White Plains Journal News reported earlier this month that the church's regional body is now suing, claiming that under church rules (the Book of Order) all church property is held in trust for the denomination.

Similar disputes are racking the Episcopal Church. Last month (see prior posting), a breakaway Episcopal congregation in California was permitted to keep its church property as it broke away from the parent body in protest over its teachings on homosexuality. Now, according to an Associated Press report yesterday, a more far-ranging federal lawsuit has been filed in Connecticut. In it, six Episcopal parishes at the center of a dispute over gay clergy allege that their civil rights have been violated by Connecticut's bishop, the head of the U.S. Episcopal Church and others.

The priests of the six parishes that filed the lawsuit had asked to be supervised by a different bishop because they disagreed with their bishop's support for the ordination of the Episcopal Church's first openly gay bishop. Interestingly, the lawsuit also names Connecticut Attorney General Richard Blumenthal as a defendant. The suit claims that the state has entangled itself in the religious dispute because state law requires Episcopal parishes to operate under the rules of the Connecticut diocese. The full text of the 67-page complaint in the lawsuit is available online. It asks for an injunction to prevent the parent church from interfering with the dissident parishes, an ejectment order, a declaration that various state statutes relating to the Episcopal Church are unconstitutional, and damages.

School Says Musical Violates Spirit of Church-State Separation

In Old Washington, Ohio, the superintendent of schools has banned the Buckeye Trail High School drama club from presenting the play "Godspell". The superintendent claims that the play, which sets the Gospel of St. Matthew to modern music, violates the spirit of church-state separation. Today's Akron Beacon Journal reports that two teachers have resigned as advisors to the high school's Drama Club because this and another play involving violence were censored.

Prisoner Claims TB Testing Violates Religious Freedom

In Perry v. Levegood, 2005 U.S. Dist. LEXIS 20964 (ED Pa., Sept. 21, 2005), a prisoner alleged that his religious freedom rights were infringed when prison nurses forced him, without good reason, to take a tuberculosis immunization test. A Pennsylvania federal district court held that preventing the spread of TB is a legitimate penological interest, and that if the Department of Corrections' TB testing policy was reasonably related to that interest, it would survive a First Amendment challenge. However, the court allowed the plaintiff to move to additional discovery before determining whether the TB testing policy was applied correctly in this case. The court dismissed the prisoner's claim that the testing also violated the Universal Declaration of Human Rights.

Order On Children's Travel Does Not Violate Mother's 1st Amendment Rights

Earlier this month in Racsko v. Racsko, 91 Conn. App. 315 (Sept. 13, 2005), plaintiff appealed an order issued in connection with the dissolution of her marriage. The order required her to surrender her children's passports and gave her husband sole authority to make decisions about their children's international travel. Plaintiff claimed that the order violated her free exercise of religion because she wished to do missionary work in Israel and wanted her children to go with her. The Connecticut appellate court held that the orders do not limit plaintiff's exercise of religion; they merely impose restrictions on her ability to determine unilaterally the conditions under which her children can travel internationally

FEMA To Reimburse Churches For Hurricane Relief

For the first time, the Federal Emergency Management Agency will use taxpayer money to reimburse churches and other religious organizations involved in hurricane relief efforts. Today's Washington Post reports on the plans. FEMA officials said religious organizations would be eligible only if they operated emergency shelters, food distribution centers or medical facilities at the request of state or local governments in Louisiana, Mississippi and Alabama to help Hurricane Katrina or Rita victims. A FEMA spokesman said in an e-mail: "a wide range of costs would be available for reimbursement, including labor costs incurred in excess of normal operations, rent for the facility and delivery of essential needs like food and water." Groups like Americans United for Separation of Church and State have criticzed FEMA's plans, arguing that they violate principles of church-state separation.

Incisive Analysis Of Bible In American Public Life

Mark Noll's long essay, The Bible In American Public Life, 1860-2005, is definitely worth reading in full. Published in the Sept./Oct. issue of Christianity Today, the article traces the rhetorical, evocative and political use of the Bible in the U.S. Here are two excerpts:

Political use of Scripture is at once more dangerous and more effective than the rhetorical or evocative. It is more dangerous because it risks the sanctified polarization that has so often attended the identification of a particular political position with the specific will of God. It can also be dangerous for religion. In the telling words of Leon Wieseltier,"the surest way to steal the meaning, and therefore the power, from religion is to deliver it to politics, to enslave it to public life."...

To foreign Roman Catholics during the Civil War, to Quebec nationalists of the 19th century, to American Jews in the first generations of immigration, and to African Americans in the period before the exercise of full civil rights, the Bible was held to be a living book, and it was held to be relevant to the United States. But it was not relevant in the way that those at the center of American influence—be they Bible believers or Bible deniers—felt it was relevant.

Church and Politics In Mexico

Mexidata Info yesterday reported on the growing controversy in Mexico over the role of the Catholic Church in Mexican politics. Article 130 of the Mexican Constitution provides that clergy may not participate in partisan political activities except to vote for a chosen candidate. The church-state issue has been focused by Pope Benedict XVI's remarks recently about narcotics trafficking in Mexco, and remarks by a Mexican bishop suggesting that the Church is involved in laundering drug money.

What Is The Issue In O Centro?

On November 1, the case of Gonzales v. O Centro Espirito will be argued before the U.S. Supreme Court. There seems to be a basic disagreement among interested parties on what issue the Supreme Court will be deciding in the case. When the Court granted cert., it defined the issue as follows: "Whether the Religious Freedom Restoration Act ... requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate an international treaty."

The government's brief defines the issue in this way. (See prior posting.) On the other hand, the respondent's brief (UDV Church) takes a narrower position-- the issue is the standard for issuing a preliminary injunction under the Religious Freedom Restoration Act. That does seem to be what the 10th Circuit's en banc opinion was about.

More interesting, perhaps, is skirmishing of a different sort that is going on in amicus briefs. Marci A. Hamilton, Professor at Cardozo Law School and church-state expert filed a brief on behalf of two "Tort Claimants Committees", groups of individuals suing the Catholic Church-- in particular, the Archdiocese of Portland and the Diocese of Spokane. Each religious entity has filed for bankruptcy. The claimants are seeking damages for prior sexual abuse, and in each case, the Diocese or Archdiocese is asserting that RFRA shields it from liability in some way. The Tort Claimants Brief argues that the Court should use this case to focus on the constitutionality of RFRA as applied to the federal government, and should hold that the law is unconstitutional. (The brief is available on Westlaw at 2005 WL 1630009). [Update- the brief is also available here.]

The brief argues that RFRA violates the separation of powers, is beyond Congress enumerated powers, and violates the Establishment Clause. While this argument might seem so far removed from the Court's original grant of certiorari that it could be ignored, a large number of civil rights groups have used their entire joint amicus brief to respond to Prof. Hamilton's constitutional arguments. They argue that the Court should not reach the constitutional issue, but, if it does, they urge the Court to uphold the constitutionality of RFRA as it applies to the federal government. Fourteen civil rights groups signed this joint amicus brief-- including some of the most influential groups in the area of church-state law. Among the signers were Becket Fund for Religious Liberty, American Jewish Congress, People for the American Way, American Jewish Committee, and the Unitarian Universalist Association.

States Have Offices For Faith-Based Initiatives

Twenty-six states and the District of Columbia now have offices to encourage faith-based initiatives, according to this morning's Grand Forks, North Dakota Herald. However, in North Dakota, the advisory panel on faith-based initiatives that was approved by the legislature last March has not yet even held its first meeting.

Religious Profiling In New Jersey?

New Jersey State Police who have been implementing federally mandated reforms to end racial profiling are now at the center of a dispute about religious profiling. The Newark Star-Ledger today reports that State Police have barred agents of the New Jersey Office of Counter-Terrorism (OCT) from filing reports in the State Police database, claiming that over 100 reports entered into the Statewide Intelligence Management System (SIMS) appeared to target suspects only because they practiced Islam or had connections to Muslim groups. OCT officials say that the reports were merely incomplete because supervisors did not have time to review them. The Governor's office called a meeting between state agencies to deal with the controversy. While the parties agreed that counter-terrorism agents were not intentionally profiling, they will not be allowed to file reports in SIMS until New Jersey's Attorney General finishes an investigation of the matter.

Hughes In Egypt Opposes Religious Extremism, Pushes Religious Freedom

The increasingly complex interaction of the U.S. government with religion in the post- 9/11 world is illustrated by Under Secretary of State Karen Hughes' trip to Egypt yesterday. Her first stop as Under Secretary for Public Diplomacy and Public Affairs was the 1000 year old center of Islamic learning in Cairo, Al-Azhar, where she emphasized the importance of fighting terrorism and religious extremism. Al-Azhar's leader, Sheik Mohammad Sayyed al Tantawi, was one of the first to condemn the Sept. 11 attacks. He also strongly condemned this year's London subway attacks. (See prior posting.) The U.S. State Department has released the text of Secy. Hughes' remarks made after her visit. She spoke about interfaith dialogue and the importance of religious freedom in the United States.

A Primer For Tomorrow's Dover Intelligent Design Trial

Tomorrow in Harrisburg, Pennsylvania, a trial will begin in federal district court on the Dover Area School District's policy on intelligent design. Intelligent design has become a flash point in the war over the role of religion in American society, and Kitzmiller v. Dover Area School District seems destined to become a symbolic battle. Today's Pittsburgh Post-Gazette has an excellent summary of the opposing views. At the heart of the case is a statement that the school district requires biology teachers to read to ninth-grade students:

The Pennsylvania Academic Standards require students to learn about Darwin's theory of evolution and eventually to take a standardized test of which evolution is a part. Because Darwin's theory is a theory, it continues to be tested as new evidence is discovered. The theory is not a fact. Gaps in the theory exist for which there is no evidence. A theory is defined as a well-tested explanation that unifies a broad range of observations. Intelligent design is an explanation of the origin of life that differs from Darwin's view. The reference book, "Of Pandas and People," is available for students who might be interested in gaining an understanding of what intelligent design actually involves. With respect to any theory, students are encouraged to keep an open mind. The school leaves the discussion of the origins of life to individual students and their families. As a standards-driven district, class instruction focuses upon preparing students to achieve proficiency on standards-based assessments.

Resources on the trial are proliferating. A particularly good source for all the primary legal documents, background and developments is the website created by the National Center for Science Education. The Discovery Institute has set up a website linking to background from the pro-intelligent design point of view. Bloggers are covering developments extensively. Ed Brayton's Dispatches From the Culture Wars is one blog that has been following the case for some time. Finally, among the flood of articles, Live Science's series on evolution vs. intelligent design seems particularly useful.

Crosses In Las Cruces Seal Challenged

In an Albuquerque, New Mexico federal district court, a lawsuit has recently been filed challenging the presence of three crosses in the official emblem of the city of Las Cruces, New Mexico. The Associated Press reported on Friday that the suit also claims that the city violated the Civil Rights Act of 1964 by requiring prospective employees to fill out job applications that include religious symbols.

This may be a harder case than most, because here the religious symbol is tied closely to the name and history of the city. The Las Cruces Sun-News today points out that the city's name, often translated as "The Crosses", may well have originated from groups of crosses that marked the graves of massacre victims in the area. Plaintiffs in the lawsuit, however, claim that they have been forced to view "the pervasive religious symbols endorsed by the city of Las Cruces and the state of New Mexico," and that they feel excluded from public participation in government activities.

Religious Revival In Mongolia

Yesterday's Salt Lake Tribune reports that since the collapse of communism in 1990, religion is flourishing in Mongolia. Christian groups of all sorts, as well as traditional Mongolian religions, are actively involved in the Asian nation. Mormons are particularly visible as they travel from house to house.

Boston Archbishop Urges Signing of Ballot Petition Against Gay Marriage

In Massachusetts, the Catholic Church is spearheading a drive to collect 66,000 signatures on a petition to get an anti-gay marriage proposal on the 2008 ballot. The Boston Globe today reported that Boston Archbishop Sean P. O'Malley has issued a letter that is to be read at masses this week end. It urges parishioners to sign the petition as a way to protect traditional marriage. The ballot proposal would ban gay marriage and would make no alternative provision for civil unions. However, Bishop O'Malley's letter also says "There is no room in the Church or in society for rejection, disregard or mistreatment of a person because of their sexual orientation." Meanwhile other religious leaders in Massachusetts, organized as the Religious Coalition for the Freedom to Marry, support civil marriage for gay couples.

School's Withdrawal Of Speaking Invite Poses No 1st Amendment Problem

Last week, the U.S. Ninth Circuit Court of Appeals, in an opinion short on facts, rejected a First Amendment claim in Carpenter v. Dillon Elementary School Dist. 10, 2005 U.S. App. LEXIS 20364 (Sept. 19, 2005). Fortunately, the Rutherford Institute's website gives us additional facts. The District 10 School Board originally approved inviting an evangelical Christian motivational speaker to appear at a voluntary school assembly. The school required that he not discuss his religious faith or the religious youth rally scheduled for that evening. Subsequently the board withdrew the invitation, concerned that the assembly might violate church-state separation requirements. The Ninth Circuit upheld the school board's decision, finding that the speaker had not been denied "the type of governmental benefit or privilege the deprivation of which can trigger First Amendment scrutiny".

Land Urges Religious Concerns Be Part of Foreign Policy

Richard Land, a commissioner of the U.S. Commission on International Religious Freedom, spoke at a conference on religious tolerance held at Rice University on Sept. 21. The Baptist Press yesterday reported on his interesting remarks:

Future [American] leaders must take religion seriously. Otherwise, foreign policies will fall short. Our leaders must factor religion into domestic and foreign policies [if America hopes to continue to have an impact on peace and freedom around the world.]... If the 20th century was a century of ideology, the 21st century is shaping up to be a century of religion. The more we ignore the reality of how religion plays a role in conflicts, the more problems we will have....

Land is also president of the Southern Baptist Ethics & Religious Liberty Commission.

Hindu Group Supports Wiccan In Supreme Court

The Hindu American Foundation has filed an amicus brief in support of a petition for writ of certiorari, asking the U.S. Supreme Court to grant review in the case of Simpson v. Chesterfield County. Spero News reported yesterday on the brief (full text) which backs reversing the Fourth Circuit's decision that a Wicccan leader could be denied the opportunity to be among those who present invocations at county board of supervisors meetings.

Lawyer Nikhil Joshi, a member of HAF's Board of Directors said: "This is perhaps the most blatant affirmation of religious discrimination by any court to date. If allowed to stand, the Fourth Circuit’s decision will allow Chesterfield County to continue to selectively dole out certain governmental privileges to members of majority religions over others."

Indian Court Reverses Book Ban

In 2003, the government of West Bengal (India) banned the book Dwikhandita ("Split in Two") by Bangladeshi writer Taslima Nasrin. The state's Home Secretary, Amit Kiran Deb, said that if the book were not banned, “it could ignite communal tension." (Background article.) Yesterday's issue of The Statesman reports that the ban has been reviewed and reversed by a three-judge Special Bench of Calcutta High Court. The court held that the ban would only be justified under the law if the book violated Indian Penal Code, Sec. 295A that provides: "Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of citizens ..., by words, either spoken or written, or by signs or by visible representations or otherwise, insults or attempts to insult the religion or the religious beliefs of that class, shall be punished with imprisonment... or with fine, or with both."

The court says that the book criticizes Bangladesh for becoming a theocratic state, and was not specifically intended to insult Islam. Another report on the court's decision in the Calcutta Telegraph says that the court directed the government to return the books it had seized to the book's publisher. However, after the decision was handed down, the Jamiat-e-Ulama-e-Hind (Council of Muslim Theologians) declared at a rally in Calcutta that the author would not be allowed to enter any district in Bengal. "She has tarnished Islam in her book and must be punished," said its general secretary, Siddikullah Choudhury.

Does FEMA Require Blessing Of Recovered Bodies?

An article in the Sept. 26 issue of Newsweek says that in the Hurricane Katrina clean-up, FEMA requires that contractors engaged in recovery work of must make certain that chaplains bless bodies that are retrieved. Yesterday, Rabbi David Saperstein, head of Reform Judaism's Religious Action Center, wrote FEMA seeking clarification. His letter said: "Americans affected by Katrina practiced and continue to practice a diverse array of faiths or choose no faith at all. Just as government may not establish religion among its citizenry, it may not impose prayer upon individuals after their passing." The Newsweek article, Cash and 'Cat 5' Chaos, reports that when a FEMA spokewoman was asked if that was mixing church and state, she responded: "A prayer is not necessarily religious. Everybody prays."

Bet Din To Decide On Case Against Mohel

In a politically sensitive case, the city of New York withdrew its lawsuit against an Orthodox mohel suspected of transmitting herpes to three baby boys-- one of whom died. The mohel used an unusual procedure-- metzitzah b'peh-- in their circumcisions. (See prior posting.) New York's Jewish Week reports today that after nearly a year of investigation the city has turned the matter over to a chasidic rabbinical court (a Bet Din) in Williamsburg, Brooklyn. This appears to be the first time that New York City has turned a public health matter over to a religious court.

Teaching Biblical Literacy In Public Schools

New York Newsday reported yesterday that a new text book designed for teaching about the Bible in public high schools has just been published. The Bible and Its Influence attempts to avoid legal and religious disputes. The Bible Literacy Project of Fairfax, Va., spent five years and $2 million developing the book which has been endorsed by experts in literature, religion and church-state law. The book follows principles from a 1999 agreement between educational and religious groups, "The Bible and Public Schools," brokered by Bible Literacy and the First Amendment Center.

Meanwhile, another curriculum for teaching about the Bible in high school which has been severely criticized, has just been revised. Wednesday's Baptist Standard reported that the National Council on Bible Curriculum in Public Schools has issued a revision of its teaching guide, The Bible in History and Literature. The revision reflects a number of the constitutional and academic criticisms that surfaced last month in a review of the curriculum published by the Texas Freedom Network. (See prior posting.)

Jehovah's Witnesses Lose Facial Challenge To Puerto Rico Controlled Access Law

In an opinion that has recently become available, the federal district court in Puerto Rico last month rejected a facial constitutional attack by Jehovah's Witnesses to the Commonwealth's Controlled Access Law. In Watchtower Bible and Tract Society of New York v. Ramos, 2005 U.S. Dist. LEXIS 20652 (USDC PR, Aug. 9, 2005), the law that permits residential associations to close off neighborhoods in order to prevent crime was upheld against a series of First Amendment claims. Jehovah's Witnesses believe that they have a Bible-based duty to tell others about the contents of the Bible, and do this by going door-to-door in residential neighborhoods. The court rejected plaintiffs' facial challenge that claimed the law violated their speech, press, associational and religious exercise rights, as well as Fourth Amendment and right to travel claims. However, the court allowed plaintiffs' to present further evidence on their claims that the law was unconstitutional "as applied" to them.

New Religion Clause Scholarship

From SmartCILP:
Francis J. Beckwith, Gimme That Ol' Time Separation: A Review Essay (Reviewing Philip Hamburger, Separation of Church and State.) 8 Chapman Law Rev. 309-327 (2005).

G. Sidney Buchanan, Evolution, Creation-Science, and the Meaning of Primary Religious Puropose, 58 SMU Law Rev. 303-317 (2005).

Posted online:
Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming in Stanford Law & Policy Review. (Abstract)

Muslim Firefighter Loses Bid To Keep Beard On Job

Yesterday, a common pleas court judge in Philadelphia ruled against a Muslim firefighter, agreeing with the city that the firefighter cannot wear a beard on the job. The Associated Press reported yesterday that the court found the city's concern about safety problems with the seal on respiratory masks posed by beards was a compelling interest that justified an exception to the protections granted by Pennsylvania's Religious Freedom Protection Act. "Directive 13 (the facial-hair ban) ... is the least restrictive means of furthering its compelling interest in maximizing safety for its members," Common Pleas Judge James Murray Lynn wrote in his order. The court had granted a preliminary injunction to the firefighter pending this decision. (See prior posting.)

RI Supreme Court Rejects Opening Birth Records Based On Mormon Beliefs

On Sept. 19, in In re Philip S., the Rhode Island Supreme Court ruled against an adoptee, now an adult, who claimed that his Mormon religious beliefs should permit him to discover the identity of his birth mother. He claimed that he had a religious duty to trace his ancestry. Additional details of the case, in which the court placed a high value on confidentiality of adoption proceedings, are reported in today's Providence Journal. The Court avoided ultimately deciding a difficult constitutional issue by holding that the petitioner presented the Family Court with no meaningful evidence to support his claim of good cause to open his records other than his own subjective assertions about what he considered to be the requirements of his religion. In a footnote, however, the Court said: "While we make no definitive holding at this time, it is our tentative view that, unless a petitioner’s religious beliefs can be “translated” into a more secular context (such as being a constituent element of a particular petitioner’s psychological need), we do not see how deferring to such a belief would be anything other than a preferential treatment by government based upon religion."