Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Monday, March 06, 2006
Israeli Justice Jockeying To Write Opinion On "Who Is A Jew?"
Sunday, March 05, 2006
RLUIPA Land Use Developments
In City and County of Honolulu v. Sherman (Feb. 28, 2006), the Hawaii Supreme Court held that a Hawaii statute (R.O.H. Ch. 38) that permits the city and county to file eminent domain proceedings to convert properties from leaseholds to fee simple ownership is not subject to RLUIPA because the law is neither a zoning nor a landmarking law. Therefore it does not constitute a "land use regulation" as RLUIPA defines the term.
The Associated Press reports that on Friday, a federal district judge released an opinion holding that RLUIPA prevents the Village of Mamaroneck in New York from using its zoning laws to block construction of a new 44,000 square-foot building by the Westchester Jewish Day School. The zoning board had raised issues of traffic, parking, esthetics and property values in denying the application to build the school in Mamaroneck's upscale Orienta Point neighborhood. Judge William Conner said that the board's denial, in 2001, "was so contrary to the evidence and to the equities as to be arbitrary and capricious." However, the judge stayed his order pending an appeal to the U.S. Second Circuit Court of Appeals. The long history of the case is traced by this coverage of Friday's decision by the Westchester Journal News. UPDATE: The lengthy opinion is now available on LEXIS, Westchester Day School v. Village of Mamaroneck, 2006 U.S. Dist. LEXIS 9058 (SDNY, March 2, 2006).
A recently published article reviews RLUIPA land use developments: Edwin P. Voss, Jr. & Meredith A. Ladd, Recent Developments Under the Religious Land Use and Institutionalized Persons Act, 37 Urban Lawyer 449-466 (2005). [Thanks to SmartCILP]
American Legion Begins Campaign For Public Expression of Religion Act
Last week, the Legion released a booklet titled In The Footsteps Of The Founders  A Guide To Defending American Values, which gives background on PERA. The Legion is particularly focusing on suits against the BoyScoutss, and and attorneys' fees that have been awarded to ACLU lawyers. The booklet says: "There simply is no reasonable basis to support the profiteering in attorney fee awards ordered by judges in these cases. The very threat of such fees has made elected bodies, large and small, surrender to the ACLU's demands to secularly cleanse the public square."
Australia Keeps Church-State Status Quo
Muslim Prisoner Has Initial RLUIPA Win
Saturday, March 04, 2006
New York Attempts To Close Bars Too Near To Unknown Mosque
The Tribeca Trib this week reported that the New York State Liquor Authority has denied a license to one bar, and is threatening to close three others, because they are within 200 feet of Masjid al-Farah, a Sufi mosque. The problem, however, is that none of the bar owners knew that the mosque was there. Indeed some of the bars had been operating over 10 years without realizing the problem. The mosque's nondescript building has no signage on it indicating that it is a mosque. Moreover, mosque officials have no objection to the bars. The Liquor Authority asserted the violations of law after other neighbors objected to the noise and over-concentration of bars in the neighborhood. One bar owner has suggested a legal loophole-- he argues that Sufism is "more a philosophy" than a religion. The state's liquor law (Alcoholic Beverage Contol Law, Sec. 64) applies to establishments on the same street and within 200 feet of a building "occupied exclusively as a school, church, synagogue or other place of worship..."
Proposed Missouri Resolution Stirs Up Blogosphere
we stand with the majority of our constituents and exercise the common sense that voluntary prayer in public schools and religious displays on public property are not a coalition of church and state, but rather the justified recognition of the positive role that Christianity has played in this great nation of ours, the United States of America.One of the introductory "Whereas" clauses in the resolution declares, "our forefathers of this great nation of the United States recognized a Christian God and used the principles afforded to us by Him as the founding principles of our nation." The Resolution has been commented upon by more blogs than usual, in part because the first web posting about the resolution, by KMOV-TV, was headlined (inaccurately) "State Bill Proposes Christianity Be Missouri’s Official Religion".
Parliament May Remove Ban On Women As Bishops In Church of England
County To Place "In God We Trust" On Court House
Friday, March 03, 2006
Plaintiff Claims Capital Punishment Tradition Parallels Biblical Episode
Furor Over Appointment To Illinois Anti-Discrimination Commission
Even the Governor did not realize who Sister Muhammad was until last month, when she invited members of the Commission to attend a speech by Nation of Islam leader Louis Farrakhan who has often virulently attacked whites, Jews and gays. The invitation led two Jewish leaders on the Commission to resign in protest. Lonnie Nasatir, regional ADL director and Richard Hirschhaut, executive director of the Illinois Holocaust Museum and Education Center, resigned, saying that the Commission has been compromised by Muhammad's appointment. Now there are calls for Muhammad to disavow Farrakhan's remarks, but many black lawmakers say this is unfair when other members are not held responsible for everything their religious leaders say. Muhammad issued a statement Wednesday supporting "fairness to all people regardless of race, creed, color, national origin or religious beliefs."
Anti-Evolution Litigation Hits Russia
Judge's Order To Remove Bible Does Not Invalidate Conviction
Canada Supreme Court Strikes Down Ban On Kirpans In Schools
Greece Approves Cremation For Non-Orthodox
Paper Chronicles Neighborhood Battle Centered On Orthodox Jews
Thursday, March 02, 2006
Alito Thank-You To Dobson Raises Criticism
Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State strongly criticized Alito's note, saying, "Justice Alito should follow the commands of the Constitution, not the orders of Dobson and the Religious Right." Reviewing the tempest on the blog Politcal Cortex, James Clarkson comments "what is missed in all the commentary so far is that Alito expressed a desire to meet with Dobson. Even if it is true that he sent out a number of thank you letters and that it was routine, does he also want to meet with these supporters?"This is just a short note to express my heartfelt thanks to you and the entire staff of Focus on the Family for your help and support during the past few challenging months.... As I said when I spoke at my formal investiture at the White House last week, the prayers of so many people from around the country were a palpable and powerful force. As long as I serve on the Supreme Court I will keep in mind the trust that has been placed in me. I hope that we’ll have the opportunity to meet personally at some point in the future.
Democratic Catholic House Members Issue Statement of Principles
We are committed to making real the basic principles that are at the heart of Catholic social teaching: helping the poor and disadvantaged, protecting the most vulnerable among us, and ensuring that all Americans of every faith are given meaningful opportunities to share in the blessings of this great country. That commitment is fulfilled in different ways by legislators but includes: reducing the rising rates of poverty; increasing access to education for all; pressing for increased access to health care; and taking seriously the decision to go to war. Each of these issues challenges our obligations as Catholics to community and helping those in need....Connecticut Rep. Rosa DeLauro said Catholic Democrats did not want to see Catholic faith defined solely by a "one-issue, very narrow right-wing agenda." Cardinal Theodore McCarrick of Washington, who is heading a bishops' task force on how to respond to dissenting politicians, said he had not yet seen the statement, but said he was willing to continue informal discussions with Catholics in both parties. [Thanks to Mirror of Justice for the lead.]
In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience. In recognizing the Church's role in providing moral leadership, we acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate -- a debate that often fails to reflect and encompass the depth and complexity of these issues.
California School Will Not Excuse Absence For Ash Wednesday Service
No Federal Court Jurisdiction In Priest Abuse Case
More Prisoner Free Exercise Cases
In Shaw v. Frank, 2006 U.S. Dist. LEXIS 7231 (ED Wis., Feb. 15, 2006), a Wisconsin federal trial court held that allegations by a prisoner sufficiently stated free exercise and RLUIPA claims to permit his case to proceed. Terrence J. Shaw alleged that Wisconsin prison authorities terminated him from participation in sex offender treatment because of his religious beliefs, belittled and forced him to engage in exercises contrary to his religious beliefs during sex offender treatment, and refused to allow him to use his religious name.
In Shabazz v. Martin, 2006 U.S. Dist. LEXIS 7207 (ED Mich., Feb. 9, 2006), a federal district judge accepted earlier findings by a magistrate judge that a prisoner's free exercise claims are not moot and that he adequately asserted equal protection claims. Plaintiff alleged that the use of prayer rugs and pendants by Nation of Islam religious members was prohibited, while members of other Islamic faiths were permitted to possess these items. He also alleged that he was denied transfer to another prison consistent with his security classification because of his membership in the Nation of Islam. The magistrate's recommendations are reported at 2005 U.S. Dist. LEXIS 40657 (ED Mich., Oct. 11, 2005).
7th Circuit Denies Stay Of Order Against Sectarian Prayer In Indiana House
Wednesday, March 01, 2006
US Muslim Group Says Closing Charities Interferes With Religious Duties
Private Town Planned Around Christian Teachings
UPDATE: In an interview on Friday with the Associated Press, Thomas Monaghan qualified many of his earlier statements. He said that mandatory restrictions will be limited to Ave Maria University. The town will be open to anyone, but it will be suggested to businesses that they not sell adult magazines or contraceptives. The town will not restrict cable television programming, and, according to the town's developer, it will not discriminate on the basis of religion, race, ethnicity or sexual orientation.
TRO Denied In Challenge To Navy's Chaplain Selection System
Church-State Tensions In Spain
Government spokesman Fernando Moraleda said, "This is a government that is deeply secular and reform-oriented," and it must adapt Spain to its position as a modern member of the European Union. Church supporters say Zapatero's government is anti-clerical and out of touch with Spanish society, which is more than 80 percent Catholic. Government moves aim at changing the constitutional balance between church and state that was created under Spain's 1978 Constitution, adopted after the death of the longtime dictator Gen. Francisco Franco. Clashes between the Spanish left and the church helped propel Franco to power during the 1936-39 Spanish Civil War.
Anti-Evolution Proposals In the West-- One Dies While Another Is Born
Meanwhile, the Las Vegas Sun reports that in Nevada on Tuesday, masonry contractor Steve Brown filed an initiative petition with the secretary of state's office. His proposal would require that students, by the end of the 10th grade, be informed that "although most scientists agree that Darwin's theory of evolution is well supported, a small minority of scientists do not agree." Several "areas of disagreement" would have to be covered in class, including the view by some scientists that "it is mathematically impossible for the first cell to have evolved by itself." Students also would have to be told some scientists argue "that nowhere in the fossil record is there an indisputable skeleton of a transitional species, or a 'missing link'", and "be informed that the origin of sex, or sex drive, is one of biology's mysteries" and that some scientists contend that sexual reproduction "would require an unbelievable series of chance events".
Brown will need to collect 83,184 signatures by June 20 to get his plan on the November ballot, and will have to get voter approval both this year and in the 2008 elections for the amendment to be finally adopted.
School Can Remove Religious Postings From Teacher's Classroom
The Associated Press report on the case indicates that Lee's postings included news articles about President Bush's religious faith and former Attorney General John Ashcroft's prayer meetings with his staffers; a flier publicizing the National Day of Prayer; and a depiction of George Washington praying at Valley Forge.
UPDATE: Steve Taylor, attorney for teacher William Lee, says he will appeal the decision to the 4th Circuit Court of Appeals.
Tuesday, February 28, 2006
Board Committee Meeting On Textbook Depiction of Hindus Is Contentious
Free Exercise Claim To Use of Hemp Rejected
More Questions Raised On Boston's Sale Of Land To Mosque
Jewish Group Endorses Principles Supporting Pluralistic Democracy
The resolution went on to deal with a number of specific issues in more detail It said that science and medicine-- including funding, research, availability of medicines and services, and appointments to governmental advisory boards-- need to remain independent from religious, political and ideological interferences.The pairing of the Free Exercise Clause alongside the Establishment Clause secures for Americans freedom of religion and freedom from governmental imposition of religion. These freedoms have enabled America to thrive as perhaps the most religiously diverse society in history. There are those, however, who seek not just a place for religion in the public square, but to co-opt the institutions of the government itself to advance their own religious agenda, while denying freedoms to others.
It is the right of individuals, including political and religious leaders to express their beliefs in public settings, but it is not their right to imbue governmental actions, meetings, buildings and other segments of the 'public square' with sectarian religious messages. It is the rights of individuals to adopt religious or scientific explanations for the origins of life, but religious theories should never be taught as science or an alternative to science in public schools. It is the right of members of the military to express religious viewpoints to fellow soldiers, but not to proselytize within the chain of command, or implicitly or explicitly pressure those of differing religious beliefs. It is the right of individuals to seek personal freedoms that may run contrary to religious convictions, but the laws of this nation and the pluralistic spirit which they foster demand no single religious belief or view be championed or codified above other sincerely held beliefs.
The JCPA is the umbrella group for 13 national Jewish groups and local community relations councils from around the country.
How Various Religions Fare In Court Challenges
First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah’s Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.
Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome—Catholic (at the 99% probability level) and Baptist (at the 95% probability level).
The question remains why those whose religious views are within the mainstream of American society would be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices. I’ll examine several possible answers to that question, beginning tomorrow.
U.S. To Oppose Current Version of UN Human Rights Council
Monday, February 27, 2006
International Court Hearing Begins On Genocide Charges Against Serbia
US Agency Says Iran Is Increasing Repression of Religious Minorities
Crosses Along Highways Are Proliferating, Professor Says
Sunday, February 26, 2006
9th Circuit Permits Sikh Prisoner's Claim To Go Forward
2006 Christmas In Schools Controversies Begin
Saturday, February 25, 2006
Utah Judge Removed By State Supreme Court For Polygamy
IRS Report On Improper Non-Profit Political Activity
Today's New York Times also covers the report and Commr. Everson's speech about it yesterday in Cleveland. The full text of the report and materials released along with it are online. Here is a summary of the alleged and determined violations from the Executive Summary:
[Thanks to Blog From the Capital for the lead.]
- Charities, including churches, distributing diverse printed materials that encouraged their members to vote for a preferred candidate (24 alleged; 9 determined)
- Religious leaders using the pulpit to endorse or oppose a particular candidate (19 alleged; 12 determined)
- Charities, including churches, criticizing or supporting a candidate on their website or through links to another website (15 alleged; 7 determined)
- Charities, including churches, disseminating improper voter guides or candidate ratings (14 alleged; 4 determined)
- Charities, including churches, placing signs on their property that show they support a particular candidate (12 alleged; 9 determined)
- Charities, including churches, giving improperly preferential treatment to certain candidates by permitting them to speak at functions (11 alleged; 9 determined), and
- Charities, including churches, making cash contributions to a candidateÂs political campaign (7 alleged; 5 determined).
Recent Publications On Church-State Issues
Robert W. Gurry, The Jury Is Out: The Urgent Need For A New Approach In Deciding When Religion-Based Peremptory Strikes Violate the First and Fourteenth Amendments, 18 Regent Univ. Law Review 91-128 (2005-2006).
Symposium: Bankruptcy in the Religious Non-Profit Context, 29 Seton Hall Legislative Journal 341-557 (2005):
- Boozang, Kathleen M., Introduction - Bankruptcy In the Religious Non-Profit Context.
- Skeel, David A., Jr., "Sovereignty" Issues and the Church Bankruptcy Cases.
- Cafardi, Nicholas P., The Availability of Parish Assets for Diocesan Debts: A Canonical Analysis.
- Wells, Catharine Pierce, Who Owns the Local Church? A Pressing Issue For Dioceses In Bankruptcy.
- DiPietro, Melanie, The Relevance of Canon Law In a Bankruptcy Proceeding.
- Sargent, Mark A., The Diocese After Chapter 11.
- Carmella, Angela C., Constitutional Arguments In Church Bankruptcies: Why Judicial Discourse About Religion Matters.
- Brody, Evelyn, The Charity In Bankruptcy and Ghosts of Donors Past, Present, and Future.
- Davitt, Christina M., Student Article: Whose Steeple Is It? Defining the Limits of the Debtor's Estate In the Religious Bankruptcy Context.
Jury Award For Denying Religious Burial To Stillborn Fetus Upheld
Prisoner Free Exercise Decisions Newly Released
In Young v. Medden, (ED Pa., Feb. 23, 2006), a wide-ranging lawsuit against prison officials, a Pennsylvania federal district court permitted a prisoner to proceed with various claims alleging violation of his free exercise rights and of RLUIPA. Willie Young, a believer in African Traditional Spirituality claimed that officials at two different prisons interfered with his ability to practice his religion.
In McElyea v. Schriro, 2006 U.S. Dist. LEXIS 6765 (D. Ariz., Feb. 13, 2006), an Arizona federal district court judge dismissed a Jewish prisoner's religious exercise claims, finding that the prisoner's "multiple frivolous motions and filings are malicious and vexatious and based on complaints which are designed to harass and antagonize the Defendants". His complaints centered primarily on his ability to observe certain rules regarding the Sabbath and kosher food, and on his objection to the prison's permitting persons to attend Jewish services who are not Jewish according to Orthodox Jewish religious law.
Friday, February 24, 2006
Conservative Ohio Board Member Defends Removing Intelligent Design
I believe in God the creator. I believe in freedom. I believe in America, and the state of Ohio, and the Republican Party, fiscal conservatism, fairness and honesty. These values guided me last week to lead the Ohio Board of Education to remove creationism from our state's Science Standards and Model Curriculum.
You may ask: Why would being a creationist make me want to remove "critical analysis"/"intelligent design" creationism from the standards? It's simple, really: It is deeply unfair to the children of this state to mislead them about the nature of science. The future of Ohio's prosperity depends on a well-educated workforce that understands science. The future of religious freedom in this country depends on the electorate understanding that modern science is not a threat to faith....Our board had to decide whether to waste millions of taxpayer dollars to hear a federal judge tell them the same thing Judge Jones told the Dover, Pa., board. We chose to stand up for kids, for the state of Ohio, for freedom of religion, and for the integrity of science. The public trusts us to uphold first-class standards and to protect democracy and religious freedom. So, we set aside our differences and did the right thing for Ohio and Ohio's children.
Israel Supreme Court Appoints Mediator In Dispute Over Museum Construction
Convicted Sex Offender Raises Religious Objections To Electronic Monitoring
Hindu Board Calls For Murder Of Controversial Artist
Those who are endangering religion and nation, should be eliminated for everyone's good. Anyone who kills Hussain for making obscene paintings of goddess Sarswati and Bharat Mata, the Danish cartoonist, those in the German company printing pictures of Ram and Krishna on tissue paper and the French filmmaker desecrating Lord Shiva will be given Rs 51 crore in cash.Hussain has apologized and withdrawn the picture from auction.
HHS Settles With ACLU In Challenge To Funding Of Abstinence Program
Non-Buddhists Object To New Broadcast Services In Bhutan
Thursday, February 23, 2006
O Centro Impacts Peyote Charges In Utah
In light of the U.S. Supreme Court's decision in the O Centro case, Mooney now says he will seek to have the court throw out his agreement with prosecutors and confirm his right to use peyote in religious ceremonies. Mooney says that while he fights his agreement, members of his church should be free to resume their ceremonies without his participation. However U.S. District Attorney Criminal Division Chief Richard Lambert took the position that federal law still requires anyone who uses peyote for religious purposes to be a member of a federally recognized Indian tribe. "Congress has spoken on this," Lambert said, pointing out that unlike hoasca, which is unregulated, Congress has specifically regulated peyote. He said that anyone using peyote who is not a member of a federally recognized tribe, including members of Mooney's church, is still breaking the law.
Dispute Over Muslim Census In Indian Armed Forces
Competing Opinions On Constitutionality Of Utah's Proposed Voucher System
Catholicism Making Gains In Vietnam
Wednesday, February 22, 2006
Dover Schools Pay $1 Million To Plaintiffs For Lawyers' Fees
School's Lease With Church OK Under Georgia Constitution
German Man Prosecuted For Insulting the Quran
UPDATE: On Feb. 23, the AP reported that the businessman charged in the case was convicted of disturbing the peace and given a one-year suspended jail sentence.
Court Upholds Student's Dismissal For Suggesting Church
Bahrain Defers Ratification of International Covenant on Civil and Political Rights
Anti-Harassment Training Does Not Infringe Free Exercise of Religion
Tuesday, February 21, 2006
Preliminary Thoughts On Today's O Centro Decision
First, there was some uncertainty as to how broadly the Court would rule. (See prior posting.) In its actual decision, the Court resolved both the narrow issue of the standard for issuing a preliminary injunction under RFRA, and broader substantive issues of the meaning of RFRA. On the issue of the standard for a preliminary injunction, the Court ruled clearly "that the burdens at the preliminary injunction stage track the burdens at trial." It is the government's burden to show a likelihood of success on the merits at trial. It is not up to the challengers to prove that the government would likely fail at trial.
On the broader issue, the Court made it clear that when RFRA requires the government to show a compelling interest in order to substantially burden a person's exercise of religion; generalized interests are insufficient:
RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' -- the particular claimant whose sincere exercise of religion is being substantially burdened.This does not mean that there can never be a compelling interest in uniformly applying a law to everyone. The Court says that if religious accommodations would seriously compromise the Government's ability to administer a law, that could be a compelling interest. The Court points to cases holding that exemptions to paying Social Security taxes could undermine the tax system, and exemptions to Sunday blue laws could undermine the need for a uniform day of rest. But the Court thought that O Centro was different:
Here the Government's argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to 'rule[s] of general applicability.'This reasoning would seem to extend beyond RFRA and apply also to cases under the Religious Land Use and Institutionalized Persons Act.
The Court does not totally preclude the possibility that at trial, the Government will eventually be able to carry its burden of showing a compelling interest and that the Controlled Substances Act was the narrowest means of furthering that interest. It seems to particularly leave open that possibility in connection with the government's argument that it had a compelling interest in complying with the 1971 U.N. Convention on Psychotropic Substances. But so far the government has not, in the Court's view, made a persuasive case.
Finally, the Court did not accept the invitation of at least one amicus brief to focus on the constitutionality of RFRA as applied to the federal government. The opinion's language, however, suggests that while the Court previously struck down the application of RFRA to the states, it has little doubt about the constitutionality of RFRA as applied to federal regulations that impinge upon religious practices.
Supreme Court Upholds Church's Right To Use Hallucinogenic Tea
The U.S. Supreme Court, saying law enforcement goals in some cases must yield to religious rights, ruled that the Bush administration can't block a New Mexico church from using a hallucinogenic tea.Here are excerpts from the Court's Syllabus of its opinion:
In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court today said the church, a 130-member branch of a Brazilian denomination, is protected by the 1993 Religious Freedom Restoration Act. The justices upheld a preliminary injunction barring federal prosecution of church leaders.
The case put the Bush administration in the unusual position of opposing religious groups, including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals, both of which backed the New Mexico church. The government contended the tea, known as hoasca, is dangerous and illegal.
The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca....
The Government's argument that, although [under RFRA] it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666....
Also rejected is the Government's central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV.... RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government's categorical approach.... [T]he Government's mere invocation of the general characteristics of Schedule I substances cannot carry the day.... The peyote exception has been in place since the Controlled Substance's Act's outset, and there is no evidence that it has undercut the Government's ability to enforce the ban on peyote use by non-Indians.
The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U.N. Convention [on Psychotropic Substances].... At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on ... the general (and undoubted) importance of honoring international obligations and maintaining the United States' leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough.
Bill Introduced To Strip Federal Courts of Jurisdiction Over Legislative Prayer
Europeans Urge Changes In Afghanistan's Supreme Court; Islamists Demur
This however is likely to meet opposition from Islamic scholar Fazel Hadi Shinwari who presently heads Afghanistan's Supreme Court and whose rulings have reflected strict compliance with Sharia. Responding to the European pressure for professionalization of the Court, Shinwari said: "Anything that is according to the Koran is fine with me, but if you go against the Koran, you Europeans will have to tell Karzai to get rid of this old man who is in charge of the Supreme Court. I'm ready to resign, but then there will be lots of problems, just as the desecration of the image of the prophet Muhammad, peace be unto him, caused 60,000 people to go out into the streets. The same thing will happen here."
As to pressure to address gender imbalance in the judiciary, Shinwari who is both Chief Justice and head of Afghanistan's Council of Islamic Scholars says: "We have many women judges here, but a woman cannot be a judge over the general country, and she cannot sit in this chair. If a woman becomes a top judge, then what would happen when she has a menstruation cycle once a month, and she cannot go to the mosque? Also, a woman judge cannot give an execution order, according to Islamic law."
Court Issues Revised Opinion In Florida Drivers' License Case
Monday, February 20, 2006
Editorial Commentary: The Cartoon Controversy and the False Holocaust Analogy
The fundamental difference between Neo-Nazi propaganda and the "cartoon affair" is the well-recognized difference in U.S. constitutional law between incitement cases and hostile audience cases. Incitement cases, to which U.S. courts apply the clear-and-present-danger test, involve situations in which we fear that listeners will so strongly agree with the speaker that language will quickly move to conduct. That is the concern with neo-Nazi propaganda and marches. Given the history of mid-20th century Europe, and the resurgence of anti-Semitism in Europe at the end of the 20th and beginning of the 21st centuries, a real fear exists that those who agree with neo-Nazis will quickly be recruited to persecute and resort to violence against Jews.
Hostile audience cases, on the other hand, are cases in which the listeners vociferously disagree with the speaker. The fear is not that listeners will follow the speaker’s urgings, but that listeners will attack the speaker or otherwise exert a hecklers’ veto. In these cases, American constitutional law protects the speaker, except in the most extreme of circumstances. The Muslim cartoons are problematic because of the reaction of a hostile audience, the reaction of Muslims who are offended by them. No one realistically fears that the cartoon of Muhammad with a bomb in his turban will so convince the Danes that Muslims are terrorists that they will begin to violently attack Muslims. Non-Muslims in general recognize the cartoons as exaggerations or over-generalizations. The fear—justified in the reality—is that some Muslims, insulted by the cartoons, will react violently against those who have published them. American law generally protects speakers from this kind of hostile reaction.
Understanding this distinction does not solve the problem of the cartoons. But hopefully it does prevent us from using false analogies in seeking a solution. Balancing the interests of listeners and speakers is difficult. Western democracies have, by and large, come down heavily in favor of the rights of speakers and have told listeners who are offended by the ideas being expressed to walk away, turn the page, switch off the broadcast, stay away from the presentation, or reply with ideas that are more convincing to listeners. Muslim protesters around the world do not agree with that resolution of the conflicting values at stake. But they need to at least recognize that the problem is different from that posed by neo-Nazi attempts to find sympathizers who would like to revive Hitler’s "final solution".
--- HMF
Arizona Bill Would Permit Opt-Out From College Assignments
Appeals In Ritual Beheading By Indigenous Indonesian Tribe
Recent Articles and Upcoming Conference
- Ivan E. Bodensteiner, The Demise of the First Amendment As a Guarantor of Religious Freedom, 27 Whittier Law Review 415-434 (2005).
- E. Frank Stephenson, An Argument for Tax Reform Based on Judeo-Christian Ethics: A Rejoinder, 36 Cumberland Law Review 103-113 (2005-2006).
- Fundamentalism and the Rule of Law, Cardozo School of Law, March 14, 2006.
No Federal Court Jurisdiction In Priest Abuse Case
Science Association Denounces States' Anti-Evolution Efforts
Sunday, February 19, 2006
Private Maryland Center Refuge For Christian State Legislators
Inside A High School Bible Class
At Harris's class last week there was nothing close to preaching. He asked students questions about aspects of the Bible, like which events in world history explained why the Old Testament was written in Hebrew and the New Testament in Greek. At another, he talked about the tensions leading to the Protestant Reformation. But other moments arguably reinforced a traditional brand of Christian thinking. Harris referred to creation and made statements such as the Bible is one book, which has 66 smaller books, 40 authors and one central theme: "The redemption of man through Jesus Christ."Rick Holliday, New Hanover County School's executive director of instructional services said that the classes have been renamed to reflect a more historical bent. The course that was "In the Beginning" is now "Old Testament I" and "The Life of Christ" is now "New Testament I." The school is also insisting that miracles are not treated as history, but instead as something “the Bible says”. Holliday says that the goal is to give the community what it wants and to follow the constitution, but adds, "That's a tough balancing act".
NH Supreme Court Rejects Foreign Islamic Divorce Of NH Domiciliaries
The court decided that another issue raised by the husband was moot. The trial court's initial temporary decree had ordered the husband "not [to] speak about the Petitioner as a Muslim/Muslim woman to the children or within hearing of the children." Since that provision was not in the final divorce decree being appealed, the Supreme Court held it did not have to determine whether it amounted to an unconstitutional prior restraint on speech.
Closing Arguments In Trial Challenging InnerChange
Lawyers for Americans United argue that the program "requires and coerces inmates to take part in religious activities." They say it discriminates against other religious beliefs, particularly Catholicism, and provides special privileges to participants. These include an opportunity to complete treatment classes required for parole earlier than they could otherwise. Defense lawyers dispute these claims, saying no one is forced to participate and that participants receive no preference for paroles. "Inmates of all faiths and no faiths are welcome," said Anthony Troy, a lawyer for Prison Fellowship. He says that those of other faiths who join the program can continue to observe their traditions