GA Court Refuses To Enjoin County Commission Opening Prayers

The Atlanta Journal Constitution reports that on Friday, an Atlanta, Georgia federal district court, in a 65-page order, refused to issue a preliminary injunction against the Cobb County Commission's practice of opening its sessions with a prayer. Judge Richard Story said the plaintiffs had not proven that the Commission's practice of inviting clergy of various faiths to deliver an opening prayer resulted "in the impermissible appearance of an official preference for one sect or creed to the exclusion of others." The court explained: "To be sure, many of these speakers, in offering their invocations, identify the deity to whom they direct their prayer. In that respect, they surely convey their alignment with one religious creed to the exclusion of others. But viewed cumulatively, given the diversity in the denominations and faiths represented, it is difficult to extrapolate from any one speaker's affiliation the preference on the part of the Cobb County government." The suit, captioned Pelphrey v. Cobb County, was filed by the Georgia Civil Liberties Union. (See prior posting.) The text of the complaint, plaintiff's motion for a preliminary injunction and the GCLU's press release upon filing the case are available at its website.

UPDATE: The full opinion in BATS v. Cobb County is now available at 2006 U.S. Dist. LEXIS 1428 (ND Ga., Jan. 13, 2006).

President Proclaims Jan. 16 As Religious Freedom Day

President George W. Bush has issued a Proclamation declaring January 16 as "Religious Freedom Day". It celebrates the 220th anniversary of the 1786 Virginia Statute for Religious Freedom, as well as the protection of religious freedom in the First Amendment.

Zoning Exclusion of Church Upheld

In Petra Presbyterian Church v. Village of Northbrook, 2006 U.S. Dist. LEXIS 876 (ND Ill., Jan. 11, 2006), an Illinois federal district court dismissed statutory and constitutional claims by a Presbyterian church that was refused permission to locate in an area zoned for industrial use. The court held that under RLUIPA, the requirement in Northbrook's zoning code that the church locate somewhere other than an industrial park was not a substantial burden on the church's exercise of religion. It also found that alleged discriminatory treatment of churches was remedied when the village amended its zoning code to exclude business-related organizations that were previously permitted in industrial zones. It also found that the statute of limitations had run on some of the church's constitutional claims.

Standing To Challenge Spending Promoting Faith-Based Initiative Upheld

On Friday, the U.S 7th Circuit Court of Appeals, by a vote of 2-1, held that taxpayers have standing to bring an Establishment Clause claim challenging Executive Branch spending on conferences to promote President Bush's "Faith-Based and Community Initiatives." At issue in Freedom From Religion Foundation, Inc. v. Chao (7th Cir., Jan. 13, 2005) was the question of whether taxpayer standing extends to situations in which there is no specific earmarking of funds by Congress for the challenged activity, and instead the spending comes from a general appropriation by Congress. Judge Posner wrote the majority opinion, and Judge Ripple dissented.

UPDATE: Here is further discussion and analysis of the case by Profs. Ira Lupu and Robert Tuttle.

Canadian Study Urges Legalization of Polygamy

A new study commissioned by the Canadian federal government recommends the legalization of polygamy and legislation to help women and children living in plural relationships. Friday's National Post reported on the study conducted by three law professors at Queen's University in Kingston. The drafters said that the current polygamy ban may well be unconstitutional under the Canadian Charter of Rights and Freedoms as a violation of freedom of religion. Polygamy has been practised for more than 60 years in Bountiful, British Columbia by a fundamentalist Mormon community living there. Last year, the RCMP investigated allegations of child abuse and sexual exploitation by the group, but no charges were filed.

Free Exercise Claim In Custody Order Rejected

On January 10, in Annette F. v. Sharon S., a California appellate court rejected a free exercise claim challenging a child custody order entered in a dispute between a child's birth mother and his adoptive mother, who were formerly lesbian partners. The birth mother, who practices Orthodox Judaism as a member of a Chabad congregation, argued that the trial court's time-share order must be reversed because it interferes with her weekly observance of Shabbat with her son. The adoptive mother , who is Christian, wished to expose their son to Reconstuctionist Judaism on some Saturdays. The court held that the birth mother had forfeited her constitutional claim by not raising it earlier, and even if that is not the case, that the claim lacks merit. The court indicated approval of the trial judge's finding that exposing the child to multiple Jewish practices can provide him with a better sense of Jewish religion and tradition.

Prisoner May Proceed On Communal Worship and Religious Name Allegations

In Shidler v. Moore, 2006 U.S. Dist. LEXIS 892 (ND Ind., Jan. 3, 2006), an Indiana federal district court granted a Muslim prisoner leave to proceed against a prison chaplain and his administrative assistant for damages for denying him access to communal worship. The court also permitted the prisoner to proceed with his claim for damages and an injunction for denying him the ability to send or receive mail using his religious name. Several other claims by the prisoner, including one that the prison had incorrectly listed him as Christian rather than Muslim, were rejected.

NY Appellate Court Rejects Challenge To Required Contraceptive Coverage

Yesterday, a New York appellate court upheld against constitutional attack a provision in the state's Women's Health and Wellness Act that requires employers who offer their employees prescription drug coverage to include coverage for prescription contraceptive drugs and devices. The statute contains an exemption for religious employers such as churches and schools that inculcate religious values and primarily employ persons who share the organization's religious tenets. But the exemption would not cover religiously affiliated social service organizations or hospitals. By a 3-2 decision, the court in Catholic Charities of the Diocese of Albany v. Serio (Dec. 12, 2005) rejected free exercise, establishment clause and free speech challenges by Catholic and Baptist groups. However, the dissenters argued that the provision violated both the U.S. and New York state constitution. Today's New York Law Journal summarizes the decision and points out that a far broader "conscience clause" was specifically rejected by the New York Legislature when the controversial bill was enacted in 2002.

SC Legislator Proposes Mandatory Cadet Prayer At Citadel

In 2003, The Citadel, in South Carolina, dropped its tradition of a mandatory mealtime prayer led by cadets, and instead instituted a period of silence before each meal at which a cadet merely has the option to pray silently. The change came after the U.S. 4th Circuit Court of Appeals struck down mandatory prayer at Virginia Military Institute. (CNN report.) Now a South Carolina legislator is attempting to reintroduce mandatory mealtime prayer at the Citadel. State Rep. Wallace Scarborogh told WCIV News (Charleston, SC): "They said that didn't have the legal authority to have prayer so I said well if they don't have the legal authority let's give them the legal authority."

Governor's Grant To Rebuild Historic Church Questioned

In Chicago last week, the historic Pilgrim Baptist Church, the birthplace of gospel music, went up in flames. Apparently the fire was caused by workers using a blow torch to repair a leaking roof. According to the Chicago Sun-Times, on Monday Governor Rod Blagojevich pledged $1 million of state money to help restore the facility. The Governor's spokeswoman, Cheryle Jackson, said "It's not going to the rebuilding of the church itself, so it doesn't violate constitutional role of separating church and state." The grant will come from the capital project fund that is used for community investments ranging from hospitals to schools. The grant to Pilgrim Baptist will go toward rebuilding the administration building, which housed a school, as well as historical documents.

Some are still questioning the legality of the Governor's move. Eric Zorn wrote in yesterday's Chicago Tribune: "Forget for a moment that the Illinois Constitution explicitly forbids funding schools that are controlled by churches. Reflect instead that any dollar the church doesn't have to spend rebuilding its school is a dollar it does have to spend rebuilding its sanctuary for Christian worship."

Scout Troops Feel Impact of Earlier Court Decision

The North Scott Press (Eldridge, Iowa) on Wednesday carried a long, interesting article on the impact of last summer's decision by an Illinois federal district court that government support of the Boy Scouts, to the exclusion of other groups, violates the Establishment Clause because of the religious component in scouting. In Eldridge, the charter of a Cub Scout Pack has been transfered from a public school to an American Legion group. After the decision in Winkler v. Chicago School Reform Bd. of Trustees finding an Establishment Clause problem in Pentagon funding of the Boy Scout Jamboree, scout organizations began to fear ACLU challenges to troops sponsored by governmental organizations. The problem affects troops affiliated with military bases, as well as those chartered by public schools.

There is no problem with scout groups meeting in schools, when the facilities are open to other groups as well. But, according to Ben Stone, executive director of the Iowa ACLU, "Chartering creates a special status and gives (the BSA) special treatment. Government should exercise their discretion and make the decision to not allow local taxpayer funds to be used to subsidize religious discrimination and discrimination on the basis of sexual orientation."

Jewish Group Denies Wrongdoing In Ties To Abramoff

The Seattle Weekly has published the full text of a long e-mail message that has been widely circulated and posted online by Rabbi Daniel Lapin, responding to charges that he was connected to the Jack Abramoff lobbying scandal. Lapin, the head of a conservative Jewish group, Toward Tradition, talks about the role of Abramoff on his organization's board of directors, and about his personal friendship with Abramoff. Lapin says that Toward Tradition conducted itself with integrity and propriety.

Jack Abramoff's Plea Agreement included an Attachment setting out the factual basis for the plea. It included the following paragraph:

...Abramoff and others sought Staffer A's agreement to perform a series of official acts , including assisting in stopping legislation regarding internet gambling and opposing postal rate increases. With the intent to influence those official acts, Abramoff provided ... ten equal monthly payments totaling $50,000 through a non-profit entity to the wife of Staffer A.

Lapin says that the non-profit referred to was Toward Tradition. However, he says, the payments were for work actually done for the group in organizing conferences; and the amounts were typical of fees charged for this kind of work. Lapin said that it is not uncommon for donors to make specific gifts for specific purposes, so they thought that this was a completely legitimate arrangement.

Alito Discusses Religion Clause Views At Hearing

For the first time during his nomination hearings, yesterday Judge Samuel Alito discussed at some length his views on the Establishment and Free Exercise clauses. The discussion came during questioning by Sen. Sam Brownback, R-Kan. The testimony is summarized in an Associated Press report. The full transcript was reprinted by the Washington Post. The exchange focused on several of Alito's Third Circuit opinions, and produced nothing in the way of surprises about his views.

City Councilman Challenges Council's Prayer Policy

In Virginia, according to today's Free Lance-Star, Fredricksburg City Councilman Hashmel Turner has filed suit in federal district court claiming that the city's policy of prohibiting sectarian prayers at city council meetings violates his First Amendment rights. Turner, who is a Baptist minister, has traditionally invoked the name of Jesus when giving an opening prayer at council meetings. In response to an ACLU complaint, city council adopted a policy of requiring opening prayers to be nondenominational. Then the Mayor excluded Councilman Turner from the prayer rotation because of his refusal to abide by that policy. Represented by the Rutherford Institute, Turner claims that City Council is engaged in an unlawful attempt to prescribe the content of prayers at City Council meetings. The suit claims this violates Turner's rights to free speech, free exercise of religion, and equal protection of the law, as well as the Establishment Clause. The Rutherford Institute has also issued a release explaining the lawsuit, and arguing that Fourth Circuit precedents on the issue have created "confusion".

Trial of Muslim Cleric For Soliciting Murder Begins In Britain

In London on Wednesday, the criminal trial against Islamic cleric Abu Hamza Al Masri began in Old Bailey. He is charged with soliciting murder and stirring up racial hatred. The Middle East Times reports that prosecutor David Perry said that Hamza, in his sermons and lectures, told his followers that part of their religious duty was to kill apostates and non-believers-- particularly Jews. Perry told the jury that this was not a trial against Islam or the Koran, but about what Hamza said. Perry added: "It is quite clear that no religion condones the murder or killing of innocent men, women or children or the dissemination of hatred and bigotry. Any suggestion that murder and hatred can be wrapped in a cloak of righteousness and justified on the basis of the great religion of Islam and its book, the Koran, is simply incorrect." Hamza denies all the charges.

Roy Moore Officially Enters Alabama Gubernatorial Race

Reuters reports that former Alabama Supreme Court Chief Justice Roy Moore officially entered the race for Alabama governor on Wednesday. Moore became famous for setting up, and then refusing to remove, a large 10 Commandments monument in the Alabama state judiciary building. His defiance of court orders eventually led to his removal as Chief Justice in 2003, but his stance endeared him to many Christian fundamentalists.

Israel May Not Give Robertson Land For Center After His Remarks

According to the January 13 edition of the Forward, the Israeli Tourism Ministry may block Rev. Pat Robertson's plan for an evangelical center alongside the Sea of Galilee, after Robertson suggested last week that Prime Minister Sharon's stroke was a punishment from God. The Israeli government was planning to furnish the land for the center free of charge, until Robertson's remarks last week on his television program, "The 700 Club." Government spokesman Ido Hartuv said the Tourism Ministry may pursue the plan for the Christian center with other evangelical leaders. He also suggested that the rejection of Robertson might not be final, saying , "We just want to find out what are the reasons for his statement. Maybe we didn't get him like he meant to be."

Navy Chaplain Ends Protest Fast

The Washington Post reported yesterday that Navy Chaplain James Klingenschmitt ended his 18-day hunger strike in front of the White House in protest of what he said were Navy restrictions on his preaching Christianity. A Navy spokesman said that chaplains are free to pray as they wish in any military chapel or worship service. But in other settings that are essentially secular in nature, such as a retirement or memorial ceremony attended by personnel of many faiths, they are asked to offer nonsectarian prayers. At one point, Klingenschmitt was told he could not wear his Navy uniform during the hunger strike. Klingenschmitt vowed that he would not eat "until the president gives me back my uniform and let's me pray in the name of Jesus." Ultimately he was permitted to wear if he was conducting a bona fide worship service in front of the White House. He broke his fast with a communion wafer. [Thanks to Blog from the Capital for the information.]

Concerned Women Group Supports Alito, Citing Religion Views

Concerned Women for America yesterday issued a statement supporting the confirmation of Supreme Court nominee Samuel A. Alito. CWA is a public policy organization dedicated to Biblical principles. Commenting on the first day of hearings, the group said:

Yesterday, Democrats on the Senate Judiciary Committee tried to make Justice O’Connor the gold standard to which they will hold Judge Alito. Nothing could be worse, especially when it comes to protecting our first liberty, religious liberty. After all, O'Connor thinks it violates the Establishment Clause to publicly display the Ten Commandments.

Judge Alito has consistently protected the free exercise rights of all religious people, including Christians, Jews, Muslims, Native Americans and the artwork of a young school boy thankful for Jesus. He has ruled against government actions that discriminate against or unfairly burden religion, and he has rejected government attempts to use the Establishment Clause to remove all things religious from the public square.

Ohio Board Refuses To Change Standards For Teaching Biology

The Columbus Dispatch reports that at yesterday's meeting of the Ohio Board of Education, a member raised the issue of dropping state guidelines on teaching of biology. After a bitter exchange between board members on whether Ohio's model lesson plan was intended to promote Intelligent Design, the board by a vote of 9-8 refused to reconsider the standards. Two board members were absent. Critics of the standards made their point by having a man dressed as a panda outside the board meeting, carrying a copy of the book Pandas and People. The board's vote appears to open the way for threatened litigation by Americans United for Separation of church and State. (See prior posting.)

Pope Emphasizes Religious Freedom In Address To Diplomats

In the Vatican on Monday, Benedict XVI addressed the traditional meeting of the Pope with the diplomatic corps accredited to the Holy See. (Full text from Zenit News Agency.) Part of the Pope's remaks focused on the need for religious liberty:

by its very nature the Holy See's diplomatic activity is concerned with promoting, among other forms of freedom, the aspect of freedom of religion. Unfortunately, in some states, even among those who can boast centuries-old cultural traditions, freedom of religion, far from being guaranteed, is seriously violated, especially where minorities are concerned.

Here I would simply recall what has been laid down with great clarity in the Universal Declaration of Human Rights. Fundamental human rights are the same on every latitude; and among them, pride of place must be given to the right to freedom of religion, since it involves the most important of human relationships: our relationship with God. To all those responsible for the life of nations I wish to state: If you do not fear truth, you need not fear freedom! The Holy See, in calling for true freedom for the Catholic Church everywhere, also calls for that freedom for everyone.

Kentucky Governor Urges Teaching of Intelligent Design

Kentucky governor Ernie Fletcher does not appear to be convinced by recent defeats in the courts for advocates of teaching intelligent design. In an interview with the Associated Press after his State of the Commonwealth speech on Monday, Fletcher said Kentucky schools should consider teaching intelligent design along with other ideas of how the world began. Explaining his support for this approach, Fletcher said: "Our inalienable rights are based on the self-evident truth of those endowed inalienable rights. And all I was saying is that from my perspective that's not a matter of faith and it's not a matter of religion. It's a matter of something called self-evident truth."

Lessening Church-State Ties Recommended In Norway

In Norway, a commission set up in 2003 is expected to recommend shortly a loosening of the ties between church and state in the country. Ekklesia today reports that 14 of the 20 commission members favor relaxing the ties between church and state, without moving to a complete separation. Included in that group is a Muslim member of the commission. Four commission members want total separation, while 2 members favor the status quo. Since 1537, the king has also been the formal head of the Church of Norway, to which 85% of Norwegians belong.

Ohio May Be Next Battlefield On Intelligent Design

Ohio may become the next venue for the battle over the teaching of Intelligent Design in the public schools. (See prior posting.) Yesterday's Ohio State Lantern reported that Americans United for Separation of Church and State is collecting documents from the state under a public records request in anticipation of filing a lawsuit against Ohio's Model Lesson Plan on Critical Analysis of Evolution if the state board of education does not change the model curriculum. Meanwhile, the Ohio Board of Education meets today for the first time since the federal court decision striking down Dover, Pennsylvania's policy on Intelligent Design. The Ohio Citizens for Science, along with faculty members from Ohio State University, plan to lobby the board to change the standards, even though the issue is not on the agenda for Tuesday's meeting.

Ohio State University Trustee Brian Hicks lobbied the Ohio Board of Education for the current science curriculum, which encourages the teaching of alternatives to evolution, when he was chief of staff to Governor Bob Taft. However, Ohio State University's Senate, and Faculty Council, as well as the Inter-University Council of Ohio (on which OSU President Karen A. Holbrook sits), have all passed resolutions opposing the state board's science standards and curriculum. Currently trustee Hicks will not answer questions about his position on intelligent design or the state board's science curriculum unless the same questions are presented to every member of the Board of Trustees.

Canadian Prime Minister Proposes Constitutional Amendment To Strengthen Religious Freedom

In Canada yesterday, the website of the Liberal Party reported that Prime Minister Paul Martin has proposed a constitutional amendment to end Parliament’s ability to invoke the "Notwithstanding Clause" in Section 33 of the Canadian Charter of Rights and Freedoms which presently permits Parliament to override the Charter's protections-- including its guarantee of freedom of conscience and religion-- for up to 5 years. Under the proposal, provincial legislatures would still be able to invoke the clause.

Cert. Denied In AmeriCorps Teacher Funding Case

The Associated Press reports that yesterday the U.S. Supreme Court denied certiorari in American Jewish Congress v. Corporation for National and Community Service. (See prior posting.) At issue was whether the Corporation for National and Community Service may, through the Americorps program, provide education awards to teachers who teach religion as well as secular subjects in religious schools, and whether it may make grants of $400 per trainee to the religious organizations that oversee those teachers-- including six "faith-based" programs. Last year the D.C. Circuit held that the funding did not promote religion in violation of the Establishment Clause. Chief Justice Roberts did not participate in the decision on the petition. The American Jewish Congress expressed regret that its cert petition was not granted.

More on Michigan Decision Permitting Carrying of Kirpan

Today's Detroit, Michigan News reports that Wayne State University is reviewing its public safety policies on carrying of knives after a Detroit judge ruled a Sikh student's religious right were infringed when he was arrested for carrying a kirpan. Elaborating on an earlier report about the case, the paper reported on the opinion written by Judge Rudy Serra of the 36th District Court. He held that Detroit's knife ordinance was intended to apply to people carrying "a knife as a weapon or for some unlawful purpose," not someone like Sukhpreet Singh Garcha who was carrying a kirpan for religious reasons. "There is no question that forbidding him from wearing the kirpan imposes a burden," Serra wrote. "It would be similar to an ordinance that made it illegal to wear a cross or a Star of David."

Alito Hearings Live On Internet

Many PBS stations, as well as others, will be webcasting the Samuel Alito nomination hearings live, beginning at noon today. Here is the link to listen at Greater Washington DC's, WETA.

Religion Clause blog has had many background postings on Judge Alito and his views on religion clause issues. To see them, type in "Alito" as a search term at the top of this page and click on "Search This Blog".

Full Opinion Refusing To Amend Indiana Legislative Prayer Ban Now Available

Federal district Judge David Hamilton's full opinion refusing to amend his earlier order prohibiting sectarian prayer in the Indiana legislature has now become available. (See prior postings 1, 2 .) Largely unreported before was he fact that Hinrichs v. Bosma II, (Dec. 28, 2005), contains an interesting holding on standing. While most of the plaintiffs in the case based their claims on their standing as taxpayers, one, Anthony Hinrichs, also was a lobbyist who had listened to many of the prayers. After the trial of the case, Hinrichs' employer, Indiana Friends Committee on Legislation, fired him as a lobbyist because of the litigation and his position on legislative prayer. In its Dec. 28 decision the court held that even though standing of plaintiffs is now based only on taxpayer status, the court is not required to limit its injunction to merely prohibiting the expenditure of public funds on sectarian prayer, but can prohibit such prayers even if they are financed in other ways.

The court also clarified that the injunction purposely did not require the Speaker of the House to obtain advance assurances from those offering legislative prayers that they would be non-sectarian, nor does it require the Speaker to interrupt a prayer if it turns out to be sectarian. But the Speaker must give pointed advice about sectarianism in inviting individuals to deliver prayers. Finally the court clarified what is a "sectarian" Christian prayer. "Prayers are sectarian in the Christian tradition when they proclaim or otherwise communicate the beliefs that Jesus of Nazareth was the Christ, the Messiah, the Son of God, or the Savior, or that he was resurrected, or that he will return on Judgment Day or is otherwise divine. "

Prime Minister Sharon's Treatment and Jewish Law

Brian Murphy, the Associated Press Religion Writer, has put together an interesting article on the Halachic (Jewish law) issues that surround decisions on the future medical treatment of Israeli Prime Minister Ariel Sharon who recently suffered a massive stroke. Even though Sharon led a secular lifestyle, his treatment is likely to become involved in religious disputation.

Jewish law forbids doing anything to hasten death, but it is permissible to remove an "impediment" standing in the way of the natural end of life. Rabbis remain divided over what constitutes an unreasonable obstacle to death. Murphy speculates that any need for life-sustaining equipment could open the kind of religious showdowns in Israel that gripped the United States last year over Terri Schiavo, the Florida woman who died her feeding tube was finally removed.

There are also disagreements among rabbis on how Jewish law defines death. In 1986, Israel's Chief Rabbinate ruled that brain death controlled, but some other rabbis take the position that death occurs only when there is both no respiration and no "movement" in the body. They consider a heartbeat to be movement, even if maintained through life-support. After six years of debate, last month the Israeli Knesset finally passed legislation allowing terminally ill patients to refuse life support. But the law contains an unusual provision: the equipment can only be turned off by an automatic timer to avoid having a health care worker do it. The law has not yet gone into effect.

Danish Muslims Seek Government Action Against Paper For Drawings

Danish Muslims are attempting to get governmental officials to take action against a mass-circulation newspaper, the Jyllands-Posten, over 12 drawings that appeared in the paper last September. They depicted the Prophet Muhammad in different settings, including one showing him wearing a turban in the shape of a bomb. The local attorney general in the city of Viborg, the seat of the High Court of Western Denmark, has refused to prosecute. Local Muslims now plan to petition the federal attorney general to take action. If that does not lead to results, a suit could be filed before the European Human rights Commission, according to Islam Online that reported on the situation yesterday.

US Troops In Afghanistan Given Cards On Muslim Practices

The New York Times today reprints excerpts from the wallet-sized cultural sensitivity cards that the military has distributed to all 19,000 American troops in Afghanistan. Much of the text is devoted to understanding and respecting Muslim religious practices. The cards were distributed in order to prevent incidents like the burning of the bodies of two dead Taliban fighters in October that created backlash in the Muslim world.

Saudi Arabia Accuses Iraq In Distribution of Hajj Permits

In Saudi Arabia, the Hajj begins today. Saudi Arabia's Ministry of Pilgrim Affairs has accused Iraq's Shi'ite-dominated government of distributing pilgrimage permits on a sectarian basis to favor Shi'ites over Sunnis. The report appears in yesterday in Malaysia's Star. Sunni Islam prevails in Saudi Arabia. The Ministry has also accused Iraq of exaggerating its population in order to get more pilgrims admitted. The comments came after reports in the Arab media that Iraqi Prime Minister Ibrahim al-Jaafari claimed Saudi authorities had not allowed some Iraqi pilgrims into the country.

New Books Focus On Impact of Religion On Law and Policy

Two new books are discussed at length in reviews made available online. At Mirror of Justice, Patrick Brennan has posted his review of David Yamane's new book, The Catholic Church in State Politics: Negotiating Prophetic Demands & Political Realities (Rowman & Littlefield Publishers, 2005).

In Tikkun Magazine, Michael Lerner writes a lengthy Editorial titled "Hostile Takeover: Theocracy in America". It reflects the thesis of his new book The Left Hand of God: Taking Our Country Back from the Religious Right (Harper San Francisco, February 7, 2006). [Thanks to Jesus Politics for the lead.]

Faith-Based Funding Goes To Secular Programs In New York

Today's Westchester, New York Journal News says that most of the programs in New York that have been listed by the White House as receiving money in 2003-04 under the President's Faith-Based Initiative are not really religious programs. While the recipient organizations have a religious affiliation in their title, the funded programs are non-sectarian social welfare programs without a religious component.

BJC Analyzes Alito's Religion Decisions; Will Blog Hearings In Real Time

The Baptist Joint Committee for Religious Freedom on Friday issued its analysis of Supreme Court nominee Samuel Alito's views on church-state issues. It concludes, "Alito's church-state record is mixed. While some of his free exercise opinions suggest a strong commitment to protecting religious rights, his record on applying the Establishment Clause to protect religious freedom is less promising."

Senate hearings on Alito's nomination are scheduled to begin Monday. Don Byrd, who writes BJC's "Blog from the Capital", will be live-blogging the hearings, with special emphasis on the religious liberty and church-state issues that are addressed in the hearings.

Impact of Dover Intelligent Design Case Debated

Around the country, the implications of the Kitzmiller case-- which struck down the teaching of intelligent design in the Dover, Pennsylvania school system-- are being debated. On Friday, the Akron, Ohio Beacon Journal reported that Lawrence Krauss, a professor of physics and astronomy at Case Western Reserve University, told an Akron Press Club audience that Ohio's model lesson plan on the teaching of evolution is unconstitutional if the approach of Kitzmiller is applied. Most of Ohio's model lesson plan, called Critical Analysis of Evolution, is "directly from the book Of Pandas and People, which was the book that was shown in the Dover trial to be based on religion, not science," Krauss said. However, Ohio Department of Education spokesman J.C. Benton disagreed. He argued that unlike the Dover plan, Ohio's lesson plan does not mention intelligent design nor require that it be taught.

UPDATE: The Columbus Dispatch reports (Jan. 8) that pressure is growing for Ohio's state board of education to reconsider its controversial science standards.

Meanwhile, in California, school officials are faced with the question of whether it is permissible to teach intelligent design in a philosophy class, instead of in biology. The Associated Press on Friday reported that in Lebec, California, the school board, by a 3-2 vote, approved the teaching of a 4-week winter session class titled "Philosophy of Design". The course, offered by Frazier Mountain High School, is being taught by a minister's wife. Three experts on intelligent design are scheduled to speak while two evolution experts listed as guest speakers for the course are in fact not coming. One disagrees with the course, and the other listed guest speaker died in 2004. Glenn Branch, deputy-director of the National Center for Science Education said, "It doesn't matter if they label it philosophy, science or home ec. For this to be endorsed as scientifically credible is a violation of church-state separation." State Superintendent of Public Instruction Jack O'Connell, who has opposed teaching intelligent design as science, however, said "In a true philosophy class, if it's one of many concepts being discussed, I have no problem."

UPDATE: AP reported on January 10 that a suit on behalf of 11 parents has been filed by Americans United for Separation of Church and State challenging the Frazier Mountain High School course. UPDATE: Here is the text of the complaint. [Thanks to Dispatches From the Culture Wars.]

British Liquor Laws Impede Purchase of Altar Wine

The London News Telegraph reported Friday that Britain's new liquor laws which allow pubs to be open longer hours have had an unanticipated effect in another area. New licensing provisions for stores selling alcoholic beverages have made it more difficult for churches to buy wine for the altar. All but three of the 30 Christian bookshops run by the Society for Promoting Christian Knowledge, have stopped selling wine, and now the St Albans Diocesan Resources Centre, Herts, is also giving up. Many churches now have to buy wine in supermarkets.

German Muslims Challenge Questioning of Visa Applicants

In Germany, the Central Council of Muslims is challenging a regulation imposed by the Democratic Christian/Liberal-controlled German Federal state of Baden-Wertenberg. It requires every foreigner applying for a visa who wants citizenship in the state to answer a questionnaire about religious beliefs. Reports this week in Expatica and from Presna Latina differed somewhat in details. Apparently the questions are submitted to every applicant, but special attention is given to those from any of the 57 countries of the Organization of the Islamic Conference . Questions include ones such as, "Imagine that your adult son comes to you and says he is homosexual and plans to live with another man. How do you react?" Other questions include views on a wife obeying her husband; whether Muslim men are willing to be treated by female doctors in Germany; and views on forced marriage and changing religion. The state's Interior Ministry officials defend the questions, saying a segment of Muslim society in Germany does not view its faith as something which can conform to the nation's constitution.

White House Criticizes Religious Leader's Comments About Ariel Sharon

Haaretz today reports that White House spokesman Trent Duffy sharply criticized Christian broadcaster Pat Robertson for suggesting that Prime Minister Ariel Sharon's stroke was divine retribution for Sharon's withdrawal from the Gaza Strip and some West Bank settlements. On his radio program, The 700 Club, Robertson said: "[Sharon] was dividing God's land, and I would say woe unto any prime minister of Israel who takes a similar course to appease the EU, the United Nations, or the United States of America. God says, 'This land belongs to me. You better leave it alone.'" White House spokesman Duffy's reaction was: "Those comments are wholly inappropriate and offensive and really don't have a place in this or any other debate." (Transcript of Duffy's statement.)

People for the American Way has a transcript and video of Robertson's remarks on its website. Subsequently according to CBN, a Robertson spokesperson issued a statement about Robertson's comments, criticizing "People for the American Way, who have a clear left-wing political agenda and who, on an ongoing basis, lift [Robertson's] comments out of context and widely circulate them in an attempt to discredit him."

Law School Clinic Loses In 8th Circuit In Refusal To Represent Client

In Wishnatsky v. Rovner, decided yesterday by the U.S. 8th Circuit Court of Appeals, the University of North Dakota Law School's clinical program has lost the first round of a battle in its refusal to represent a client who wished to challenge the display of a statue of Themis, the Greek goddess of justice, on the top of the Grand Forks County court house.

Martin Wishnatsky had previously, in a letter to the editor of the local newspaper, criticized the law school clinic for taking a case seeking removal of the 10 Commandments from public property. He then requested assistance from the clinic to develop a lawsuit on the same basis challenging the pagan statue, claiming that viewing it made him feel like a second-class citizen. The clinic refused, saying that its current case load and limited resources precluded it from taking new cases at the time. But the clinic's director, Laura Rovner, added in her letter to Wishnatsky, "your persistent and antagonistic actions against the Clinical Education Program and faculty involved would adversely affect our ability to establish an effective client-attorney relationship with you and would consequently impair our ability to provide legal representation."

Wishnatsky sued, claiming that the denial of legal services on the basis of his criticism of the clinical program and its director violated his free speech and equal protection rights. The federal district court agreed, but yesterday the Court of Appeals reversed the trial court's judgment on the pleadings. It said: "No concern about the operation of traditional government functions supports a rule that permits institutions of higher education -- traditionally bastions of free speech and the vigorous exchange of ideas -- to discriminate on the basis of viewpoint in the administration of a clinical legal program." The appellate court added that while "decisions of a clinical program about which cases and clients to accept in an academic environment should be entitled to substantial deference", its justifications are factual defenses and should not be disposed of in a motion on the pleadings. (Here is AP coverage of the case.)

Justice Sunday III Host Criticized For Political Ties

On Tuesday, Americans United for Separation of Church and State issued a release criticizing Philadelphia Pastor Herb Lusk, who, on Sunday, is hosting the "Justice Sunday III" rally. The event, which will be held at Lusk's Greater Exodus Baptist Church, will be broadcast nationwide. It is designed to rally support for the confirmation of Supreme Court nominee Samuel Alito Jr. Americas United said that Lusk has a long history of partisan activity on behalf of Republicans and has been awarded more than $1 million in "faith-based" grants by the Bush administration. Yesterday's New York Times explored Lusk's background further.

Rev. Barry W. Lynn, exeutive director of AU, said: "Government funding too often sucks churches into partisan politics. After all, if church leaders want to keep the pipeline to tax funding open, they had better back administration policies."

Pennsylvania Senator Rick Santorum will be among those speaking at the Justice Sunday rally, according to yesterday's Pittsburg Post-Gazette.

Church's Libel Suit Rejected

Harvest House Publishers v. The Local Church, decided January 5 by a Texas state court of appeals, has rejected a libel claim by a church against a publisher and two authors who included the church in The Encyclopedia of Cults and New Religions. The court held that merely being labeled a "cult" is not actionable because the truth or falsity of the statement depends on one's religious beliefs which should not be tried in a court of law. Similarly accusing a church of accepting occult powers or promoting idolatry are statements concerning religious beliefs that cannot be proved true or false. While some of the characteristics of cults discussed in the book may have been defamatory, the court held that it cannot reasonably be found that those characteristics were attributed to every group discussed in the book.

Recently Published On Religion, Law and Politics

Recently published Books of interest:

• Former Senator Gary Hart has published God and Ceaser In America: An Essay On Religion and Politics (Fulcrum Books, Nov. 2005).
• Glenn Feldman, ed., Politics and Religion in the White South (University of Kentucky Press, 2005).
• Peter W. Edge. Religion and Law-- An Introduction (Ashgate, 2005).

Articles from SmartCILP:

• Boston University Law Professor Jay D. Wexler, The Scopes Trope, (Reviewing Larry A. Witham, Where Darwin Meets the Bible: Creationists and Evolutionists in America), 93 Geogetown Law Jour. 1693-1721 (2005).
• David L. Abney, Religion and Housing for the Homeless: Using the First Amendment and the Religious Land Use Act to Convert Religious Faith Into Safe, Affordable Housing, 8 Scholar: St. Mary’s Law Review on Minority Issues 1-15 (2005).
• B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 Mich. L. Rev. 491-545 (2005).
• Alenka Kuhelj, Religious Freedom in European Democracies, 20 Tulane European & Civil Law Forum 1-35 (2005).
• Eric Stein, The Church and the Constitution for Europe: On the Margin of ... (Reviewing Joseph Weiler, Un' Europa Cristiana -- Un Saggio Esplorativo.) 11 Columbia Journal of European Law 451-460 (2005).

From Bepress:

• Haoliang Wu and Bingbin Lu, Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights, Global Jurist Frontiers: Vol. 5: No. 1, Article 3 (2005).
• Brendan Michael Groves, Winning Wirzburger and Defeating the Blaine Amendments: Arguing Present Efficacy Instead of Past Intent (2005).

Court Finds Muslim Prisoner's Dietary Requirements Were Met

In Cox v. Kralik, 2005 U.S. Dist. LEXIS 37826 (SDNY, Dec. 29, 2005), a New York federal district court rejected a Muslim prisoner's free exercise claim. It held that a prison facility need not offer him Halal food when it had given him a choice of a kosher or vegetarian diet, either of which he could eat without violating his religious beliefs.

Fla. High Court Invalidates School Vouchers Without Reaching Aid To Religion Issue

In Bush v. Holmes, decided today, the Florida Supreme Court struck down Florida's school voucher program on state constitutional grounds without reaching the question of whether the program violates Florida's Blaine amendment that prohibits any state financial aid to any religious denomination or sectarian institution. By a vote of 5-2, the Court held that Florida's Opportunity Scholarship Program violates Article IX, Sec. 1(a) of the state's constitution. The opinion said:

The relevant words are these: "It is ... a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools." ... [W]e find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

[Thanks to Anthony Picarello via Religionlaw for the information.]

Clergy To Consecrate Senate Alito Hearing Room

At 1:00 this afternoon, the Christian Defense Coalition and National Clergy Council will hold a service in the Hart Senate Office Building to consecrate the hearing room where confirmation hearings on Supreme Court nominee Judge Samuel Alito will be held. In reporting on the planned event, the Christian Wire Service yesterday quoted Rev. Rob Schenck, President of the National Clergy Council: "The act of consecrating a special place for sacred use has a long and Biblical history to it. In setting apart the Senate hearing room for God's purpose, we will ask for His will to be done in all that is said by the senators and Judge Alito. We are praying that both parties be faithful to the Constitution, honest in their exchange and devoted to the truth. As to the outcome, we pray only that God's will be done on earth as it is in heaven."

Ohio Gubernatorial Candidate's Ad Criticized For Religious Content

In Ohio, a bitter 3-way race for the Republican nomination for Governor in 2006 is well underway. Yesterday, an op-ed piece in the Ohio State Lantern by Dan Magestro criticized the religious nature of an ad being run by one of the candidates, state Attorney General Jim Petro. The ad, which can be seen on Petro's website, begins with Petro asking "What does God expect of us?" Petro answers, "To do justice, to love kindness." Then, as the Lantern describes it:

The camera floats above a certificate of Christian baptism as Petro talks about his pro-life stance and 33-year marriage. "We believe that we have to do all that we can to advocate the protection of all life," he says. The camera then hovers gracefully over a Bible (yes, a Bible) resting on a table next to a wedding ring, while Petro discusses the sacred bond of marriage between a man and a woman. Petro closes with this shocker: "Our worship and our faith gives me the opportunity to make decisions that are more effective for people."

Magestro concludes: "When the OSU quarterback humbly praises God for his athletic talents, I respect and admire his personal faith. When the attorney general of our state calls on his Christian faith for making decisions on behalf of all Ohioans, I'm appalled."

11th Circuit Issues Unusual Order Clearing Attorney In Textbook-Sticker Case

The U.S. 11th Circuit Court of Appeals yesterday issued an unusual order clearing Atlanta attorney Jeff Bramlett of charges that he purposely misrepresented the timing of events in his brief and oral argument last month in the case of Selman v. Cobb County School District. The Associated Press reported on the order. During oral argument, the 3-judge panel had sharply questioned Bramlett about whether a petition from religious supporters of intelligent design preceded or followed the Cobb County School Board's decision to place stickers on biology books questioning the theory of evolution. (See prior posting.)

Earlier this week, the Fulton County Daily Report said that 11th Circuit Judge Edward E. Carnes had demanded that Bramlett provide a written explanation of his assertions about timing. On Dec. 22, a week after the argument, Bramlett filed a 127-page response saying that there were two petitions -- one with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. Upon receiving that explanation, the Court of Appeals instructed the school board's attorney to provide "any evidence regarding the timing of any petitions that may have been filed with the School Board."

After yesterday's order, attorney Bramlett said: "I appreciate the court going to the trouble of putting out that order and, as they say, removing implications."

Maryland Muslim Students Seek Expansion of School Holiday Calendar

In suburban Baltimore Maryland, Islamic students are asking the county school system to include important Muslim festivals on the school's holiday calendar. The Towson, Maryland Northeast Booster yesterday said a school board committee is studying the issue. County resident Muhammad Jameel said Muslim children feel excluded because schools close for Christian and Jewish holidays, but not Muslim ones. School spokeswoman Kara Calder said religious absences are considered "excused". Students are permitted to make up the work and tests they miss. The school tries not to schedule tests on those days. However, excused absences do count against a student's perfect attendance record, which is sometimes important to qualify for certain scholarships.

Indiana House Speaker Will Not Defy Federal Judge On Prayer

The Baptist Press reported yesterday that in Indianapolis, Indiana Speaker of the House Brian Bosma refused urgings to defy the order of a federal judge banning the opening of legislative sessions with sectarian prayer. (See prior posting.) Bosma said that while the case is being appealed, members could have "informal" and "uncensored" prayers on the floor of the House before each legislative day begins -- but not a formal prayer from the podium. Under the judge's ruling prayers on the floor, rather than from the podium, can invoke Christ's name. Before Bosma spoke, members had already prayed together at the back of the House. Democrat Peggy Welch used "Holy Spirit" in her prayer, while Republican Eric Turner invoked the name of Christ.

In Dover Re-Vote, Challenger Wins Again

In Dover, Pennsylvania on Tuesday, a revote for one seat on the school board resulted in challenger Bryan Rehm again defeating incumbent James Cashman, according to the York Dispatch. The re-vote was limited to 800 voters and was held because a voting machine malfunctioned on election day. (See prior posting.) Rehm will now join seven other candidates fielded by Citizens Actively Reviewing Educational Strategies, a group that opposed the district's controversial plan-- now found to be unconstitutional-- to tell students about Intelligent Design in biology classes. (See prior postings 1, 2 .)

Thai Committee Recommends Establishing Buddhism As National Religion

In Bangkok, Thailand, The Nation yesterday reported that after extensive studies, a Senate committee is about to propose 15 changes to the nation's Constitution. One of the recommendations would insert a provision in the Constitution making Buddhism the national religion. The current Constitution already requires that the king must be a Buddhist (Sec. 9) and provides that the government is to protect Buddhism and other religions (Sec. 73).

Massachusetts Legislature To Consider Bills Affecting Catholic Church

The Boston Globe reports today that over 60 co-sponsors have been obtained for a bill that would partially eliminate Massachusetts' current $20,000 limit on liability for churches and other non-profits. (Gen. L. Mass., Chap. 231, Sec. 85K). The proposed change in the state's charitable immunity law would apply to cases involving sexual abuse of minors, and comes as new negotiations for settlement between sex abuse victims and the Boston Archdiocese were reported. The legislative change would follow similar action last month by New Jersey. (See prior posting.)

Three other bills affecting the Catholic Church have also been introduced into the Massachusetts legislature, but face opposition. Two would restructure the state's statute of limitations in civil and criminal cases involving sexual abuse of minors. A fourth bill, already approved by the Massachusetts Senate, is scheduled for House consideration this month. It would require financial reporting to the attorney general by religious organizations. (See prior posting.) The Massachusetts Catholic Conference particularly opposes the proposed changes in the statute of limitations. Its executive director, Edward Saunders, said, ''The position for the church is that it is opposed to any legislation that crosses the lines of separation of church and state." He said the organization opposes elimination of the statute of limitations for sex abuse because ''as time goes by there is a weakening of testimony and evidence."

Breakaway Church and PCUSA In Court Over Title To Property

The Times Record-Herald (Hudson Valley, New York) yesterday chronicled the background of a case currently pending in a New York trial court pitting the 18-member Ridgebury Presbyterian Church in Wawayanda, New York against the Prebyterian Church USA. In a theological schism over homosexuality, abortion and scriptural interpretation, the Ridgebury congregation notified PCUSA that it was leaving the denomination. Now the two groups are fighting in court over who owns the church building and property. The congregation says it holds deeds to the property which has been in its hands since the congregation was founded in 1792. But PCUSA and the Hudson River Presbytery claim that in 1983, a legally binding property trust clause was inserted into PCUSA's internal constitution. (Book of Order, Chap. VIII, Sec. 2). The clause provides that local congregations hold church property in trust for PCUSA as long as they are members. PCUSA says the provision simply codified what had been a longtime church practice. As the Times-Herald Record reporter points out: "For little congregations wishing to break away on theological grounds, a ruling upholding the trust clause could serve as a material leash on spiritual dissent."

Israeli Religious Parties Reject Religious Affairs Changes

Today's Jerusalem Post reports on a proposal to reduce Israeli national government involvement in Religious Affairs and increase local control of Religious Councils. The Ne'emanei Report was presented earlier this week to the chairmen of three leading Israeli political parties. It suggested that synagogues, funded by a voluntary religion tax, should employ the local rabbi and provide basic educational services and a place of worship. Services that individual synagogues could not provide, such as marriages, burials, ritual baths and kashrut supervision, would be provided by one or more national unions of synagogues. Leaders of the major religious parties, Shas and NRP, rejected the proposal, saying that it would be a first step toward separation of religion and state. National Religious Party chairman Zevulun Orlev said, "Religious services must remain an intrinsic part of the state. This is fundamental to the definition of Israel as a Jewish democratic state."

Dover School Board Rescinds Intelligent Design Policy

The Associated Press reports that in Dover, Pennsylvania on Tuesday, the recently-elected school board rescinded the prior board's policy of presenting students a statement on "intelligent design" as an alternative to evolution in high school biology classes. This move was expected, and came two weeks after a federal judge found the teaching of intelligent design to be unconstitutional. (See prior related postings 1, 2 .)

Italian Case On Proving Existence of Christ Proceeds

Under the Italian Penal Code, both "abuse of popular credulity" (Sec. 661) and "impersonation"(Sec. 494) are offenses. Luigi Cascioli, who lives in Viterbo, a town north of Rome, is a retired agronomist who once studied for the priesthood but later became a militant atheist. He has written a book titled The Fable of Christ. A priest, Father Enrico Righi of Bagnoregio, denounced Cascoli in the parish newsletter for questioning Christ's historical existence. In September,2002, Cascoli responded by filing suit. The trial judge dismissed the case but the Court of Appeal held that Signor Cascioli had a reasonable case for his accusation that Father Righi was "abusing popular credulity". So yesterday the trial judge, Gaetano Mautone, set a preliminary hearing for next month. The London Times reports on the case as one in which Father Righi will be required to prove that Jesus Christ existed. It also reports, not surprisingly, that "the Vatican has so far declined to comment".

In an e-mail sent last September to the Archbishop of Bologna, Cascioli said he would drop the suit if Righi offered just one proof of the existence of Jesus. Cascioli has made many of the documents in his lawsuit available on his website. From the complaint, here is an excerpt from his explanation of the charges:

According to article 661 of the Italian Penal Code, there is an abuse of popular credulity when someone, by means of fraud, deceives a great number of people. In this particular case, the ministers of religion of the Catholic Church, like Righi in the present case, by committing historical falsity, therefore presenting invented facts as if true and actually occurred – but useful to religious doctrine – they deceive all the people that come into contact with the teachings of such religion, by inducing them to believe in that religion, not on the basis of purely theological reasoning (totally legitimate and admissible), but on the basis of a deceptive representation of the facts.

Vermont Enforces Unconstitutional Liquor Regulation

According to today's Rutland Herald, the state of Vermont continues to enforce a liquor control regulation that fairly clearly violates the Establishment Clause. Department of Liquor Control Regulation No. 35 provides that no liquor license may be granted for a premise within 200 feet of a church or school without the church or school's permission. In 1982, in Larkin v. Grendel's Den Inc. the U.S. Supreme Court held that a similar Massachusetts statute violates the 1st Amendment.

Sikh Temple Dispute Goes On As Members Await Court Appeal

In Bedford, Ohio, a dipute that is working its way through the courts required police to be present at midnight New Years Eve services at the Guru Gobind Singh Sikh Sikh Temple. Yesterday's Cleveland Plain Dealer reports on the dispute between less traditional Sikhs who are longtime members of the temple, and more numerous newcomers who favor a return to tradition, including beards and turbans. The longtime leadership also wishes to restrict who can be a voting member of the temple. But a group of the newcomers, claiming they are the newly elected leaders of the Temple, grabbed the microphone at the midnight prayer service, and then returned later Sunday to continue their takeover. Police finally left Sunday after the longtime leaders agreed to leave the temple.

A Cuyahoga County Common Pleas Court judge ruled in 2004 that the Temple's membership could be expanded with the many newcomers and that all members are entitled to vote and view financial records. That paved the way for the new leadership. But the old leaders filed a notice of appeal and aruge that until the 8th Ohio District Court of Appeals rules, they should remain in place as Temple leaders.

Two Prisoner Cases From A Few Months Ago

The decisions in two prisoner free exercise cases from several months ago have just become available. Ford v. Martel, 2005 U.S. Dist. LEXIS 37318 (ED Cal., Sept. 14, 2005), involved complaints about limits on religious services during a prison lock down imposed after weapons-related materials were found near where Muslim inmates had just participated in Ramadan services. A U.S. Magistrate recommended dismissal of complaints that during the Ramadan lock down inmates were given access to a Muslim imam only in their cells.

In Pineda-Morales v. De Rosa, 2005 U.S. Dist. LEXIS 37179 (D. NJ., July 6, 2005), a prisoner complained that he was not allowed separate services for the Apostolic Faith Church, arguing that the "trinity doctrine" of other Protestant churches was inconsistent with teachings of his faith. The court denied prison officials' summary judgment motion on one claim, finding that questions of fact remained on whether prison officials employed the least restrictive means when they denied denominational recognition and Saturday meeting time to Plaintiff's group. However summary judgement on various other claims was granted based on exhaustion, statute of limitations and immunity.

Op-Ed Criticizes Democrats' Outreach To Religious Voters

An op-ed piece in today's New York Times by Joseph Loconte is worth reading. Titled Nearer, My God, to the G.O.P., it accuses the Democrats of now misusing religion as badly as the right. It points out that after the 2004 election, Democrats decided to try to reclaim religious voters. In the House they set up the Democratic Faith Working Group. In the Senate, minority leader Harry Reid added a page called Word to the Faithful to his website.

Pending Federal Legislation On Religious Liberty and Church-State

As Congress reconvenes later this month, at least 20 bills impacting free exercise or church-state relations are pending in committee or at other stages of the legislative process. Here they are:

• Workplace Religious Freedom Act- S.677; H.R. 1445.
  
• Houses of Worship Free Speech Restoration Act- H.R. 235.
  
• Denial of tax exemption for discriminatory social clubs- H.R. 237.
  
• Family Education Freedom Act- H.R. 406.
  
• Bill to allow clergy to revoke their Social Security exemption- H.R. 451.
  
• Trade sanctions for countries that violate human rights- H.R. 967.
  
• Tools For Community Initiatives Act- H.R. 1054.
  
• Tax code's definition of "convention or association of churches"—H.R. 1411.
  
• Responsibility of pharmacies to fill prescriptions- H.R. 1539, H.R. 1652, S. 809.
  
• Liberty List Act- H.R. 1662.
  
• War Memorial Preservation Act—H.R. 2229.
  
• Religious Freedom Peace Tax Fund Act- H.R. 2631.
  
• Public Expression of Religion Act- H.R. 2679.
  
• Commission on Religious Freedom and Respect in the Armed Forces- H.R. 3108.
  
• Disaster Relief Equity Act- H.R. 3208.
  
• Religious exemption from furnishing tax identifying numbers- H.R. 3410.
  
• Voluntary non-denomination prayer at military academies- H.R. 3430.
  
• Reinstating harboring sanctions for paid alien religious volunteers- H.R. 4321.
  
• Public Prayer Protection Act- H.R. 4364.
  
• Extending Equal Access Act to Elementary schools- S. 483.

Role of Shariah In Malaysia Increasingly Questioned

In Malaysia, criticism is growing of Islamic fundamentalists who control the government's Islamic Affairs Department that administers Shariah law. Two events have prompted calls for change: (1) the passage last December of a new Islamic family law that makes divorce and polygamy easy and allows a husband to claim his wife's properties, and (2) the the forced Islamic burial last week of Mt. Everest climber, M. Moorthy, over his Hindu wife's objections. Western-educated Muslim feminists criticize the Islamic Affairs Department's strict interpretation of the Quran. The main opposition Democratic Action Party has called for a major review of Article 121(1A) of the Malaysian constitution, added in 1988, that strips civil courts of jurisdiction over "any matter" within the jurisdiction of the Shariah courts. A long background report on the situation today by Spero News says these developments have led to a questioning of "the role of an increasingly puritanical Islam in a multi-ethnic society that prides itself on tolerance and an easygoing, modern way of life".

Colorado Mayor Launches Faith-Based Program

Colorado Springs, Colorado mayor Lionel Rivera is initiating his Mayor's Faith Based and Community Initiatives program, according to today's Colorado Springs Gazette. He will use the mayor's office to link charities in need of volunteers with churches, synagogues and mosques that can supply them. This will be done through the city's Web site and e-mails the mayor sends to a database of leaders in the religious and nonprofit communities. Citizens Project executive director Ellie Collinson questions the approach. "For the government to target specifically faith-based organizations, I think, is not the best use of taxpayer money, and I would rather see the private sector get involved in that sort of activity," Collinson said. "And certainly the mayor could endorse it as a worthwhile effort, but I don't see the need for spending city services in order to make the project happen." The mayor says he will gladly accept nonfaith-based groups into his program.

Happy New Year To Religion Clause Readers

Dear Religion Clause Readers,

Happy New Year. A bit over 8 months ago, I began this blog, somewhat on a whim, but with the perception that there was a need for the type of coverage it provides. A half hour after the New Year arrived on the East Coast of the United States, visitor number 22,228 logged onto Religion Clause. That hardly ranks it at the top of world readership, but I am pleased to have attracted those numbers.

Thanks in particular to my regular readers. Your comments, tips, and links from your own blogs are appreciated. If you enjoy Religion Clause, please take a moment today to e-mail others who you think might like to add the blog to their daily reading.

I invite all readers to e-mail me with comments or ideas-- whether on coverage, format, linking policy or other topics. I cannot promise to incorporate every suggestion—after all one of the virtues of blogs is that they permit an author to indulge a personal style and approach without the intervention of editors and marketers. However, I will read all suggestions with an open mind. Happy New Year!

[photo from New Media Journal.us]

Conscientious Objector Claims In U.S. Military Growing

Yesterday, the Associated Press reported on the small, but growing, number of U.S. soldiers, disillusioned with the Iraq war, who are applying for conscientious objector status. In 2004, some 110 applied, a four-fold increase from 2000. About half the applications were approved.

Creditors of Portland Archdiocese Can Reach Parish Properties

Yesterday, U.S. Bankruptcy Judge Elizabeth Perris in Portland, Oregon, issued three separate opinions in Roman Catholic Archbishop of Portland v. Tort Claimants Committee. The two major opinions held that parish church, school and cemetery properties are part of the assets of the Archdiocese and that at least some of those properties are available to creditors of the Archdiocese to satisfy their claims in the Archdiocese bankruptcy proceedings.

In the major opinion, the court rejected First Amendment challenges to its jurisdiction, holding that a determination of whether parish properties are part of the bankruptcy estate does not involve its deciding a theological or doctrinal matter. Finding that the Archdiocese had not separately incorporated its parishes or schools, the court said:

What defendants ask this court to do in the name of religious freedom is to disregard the choice debtor has made about how to hold property under civil law, because of their argument that the choice leads to a result not consistent with canon law. It is not for the civil courts to enforce canon law if the actions of the religious organization under applicable civil law do not effectuate what canon law requires.

However, the court had more difficulty with the Archdiocese claim that the Religious Freedom Restoration Act protected it from having church and school properties sold off to satisfy creditors' claims. In its second opinion, focusing on the bankruptcy trustee's right to ignore claims of parishes and schools to the properties, the court said:

that there is a question of fact whether application of the avoidance powers under Sec. 544(a)(3) might substantially burden the exercise of religion in violation of RFRA, if it were to result in the loss of so many parish churches and Archdiocesan high schools that it would leave defendants with no place to worship and study.

However the court left that determinationn to future litigation, suggesting that it might limit the number of properties that could be sold off.

Finally, a third opinion focused on the scope of questioning that the Tort Claimants Committee could engage in when taking the depositions of the Archbishop and other witnesses. Among other things, the court held that the First Amendment does not protect against questions about internal church governance where that is relevant to the Church's patterns, practices, and policies in addressing priest sexual misconduct with minors.

The Associated Press, reporting on the opinions, points out that they mirror an earlier decision in the bankruptcy of the Diocese of Spokane, Washington.

Atypical RLUIPA Issues Decided

Two RLUIPA cases that have recently become available address some of the more obscure issues posed by RLUIPA.

Lighthouse Institute For Evangelism, Inc. v. City of Long Branch, 2005 U.S. Dist. LEXIS 36425 (D NJ, Dec. 27, 2005) involved a challenge to Long Branch, New Jersey's Redevelopment Ordinance by a church that wished to locate in an area in which churches were not a "permitted use." One of the church's RLUIPA claims was brought under 42 USC 2000cc(b): "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Rejecting the approach of some other courts, New Jersey federal district Judge William Walls held that subsection (b) is violated only if there has been a "substantial burden" placed on the church's free exercise of religion.

The opinion in Williams v. Gerges, 2005 U.S. Dist. LEXIS 36958 (ED NY, July 26, 2005), which has only recently become available even though it was decided 5 months ago, holds that the four year statute of limitations under 28 USC 1658(a) applies to RLUIPA actions. That provision applies to civil actions arising under any federal law enacted after December 1, 1990. This is so even thought the statute of limitations for a First Amendment claim brought under 42 USC Sec. 1983 may be shorter. Courts have found the limitations period under Section 1983 to be the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits.

It's Not Over In Dover-- Election Re-Run For 1 Board Seat Tuesday

It was widely reported in November that residents of Dover, Pennsylvania voted out the 8 incumbent school board members who supported the teaching of intelligent design, and elected challengers who opposed teaching this alternative to evolution in science classes. (See prior posting.) However, the election battle is not over. Today's Harrisburg Patriot-News reports on the little-noticed development. Board incumbent James Cashman lost to challenger Brian Rehm by only 96 votes. Cashman sued, and a county judge has now ordered a partial re-vote because it appears that one voting machine malfunctioned. Cashman received only one vote on that machine, while other incumbents each received about 100 votes. So next Tuesday there will be a special election open only to the 817 people who voted on Nov. 8 at the precinct in question.

California's Extension of Time To Sue For Childhood Sexual Abuse Upheld

On Dec. 21, the U.S. District Court for the Southern District of California issued an opinion in Melanie H v. Defendant Doe 1 (Civ. No. 041596-WQH-(WMc), rejecting a constitutional challenge by the Catholic Church to California's extension of the statute of limitations in priest childhood sexual abuse cases. The opinion is not yet available online, except through the court's PACER system (account required). The Bishop of San Diego and Sisters of Precious Blood argued that California's SB 1779 (Cal. Code of Civil Procedure Sec. 340.1) violates the free exercise, establishment, due process, ex post facto and bill of attainder clauses of the U.S. Constitution.

The court concluded that SB 1779 does not burden the Church's choice, supervision or retention of priests, and that the financial burden in defending lawsuits is not a burden on religious belief or practice. It also found that the statute does not favor or disfavor one religion over others, nor will it lead to excessive entanglement of Church and state. The court found that the claim that defendants due process rights were violated is premature and that SB 1779 is not per se unconstitutional under the Due Process Clause. Finally, it rejected the ex post facto and bill of attainder claims.

Reporting on the decision, last week's Los Angeles Times pointed out that this is the second case to reject constitutional challenges to SB 1779.

NJ Township Permits Creation Of Eruv

In Maplewood Township, New Jersey, the Township Committee has approved a proposal by two Orthodox Jewish congregations to mark existing telephone poles and wires in order to create an eruv around the town-- a symbolic boundary that will permit observant Jews to carry objects and push strollers on the Sabbath. Yesterday's New Jersey Jewish News reports that the proposal was approved by a vote of 4-1. The lone dissenter, Vice Mayor Ian Grodman, said: "I have a problem with the township getting involved in what amounts to a violation of the Establishment clause." However, in 2002 in a case from Tenafly, New Jersey, the U.S. Third Circuit Court of Appeals rejected the argument that permitting an eruv would create establishment clause problems.

Top Ten 2005 Church-State/ Free Exercise Developments

Here are my picks for the Top Ten developments in Church-State Separation/Free-Exercise of Religion in the United States in 2005. Each development has been the subject of many postings over the year. A link to one typical story on the issue accompanies each pick. I invite comments by those who agree or disagree with my choices.

1. Supreme Court rules on 10 Commandments displays.
2. Intelligent Design is at center of public controversy.
3. Supreme Court nominees are scrutinized over their 1st Amendment religion views.
4. The "Christmas wars" heat up-- "holiday" vs. "Christmas".
5. Government funding of faith-based organizations remains controversial.
6. Proselytization at the Air force Academy creates controversy.
7. RLUIPA is upheld as constitutional by Supreme Court and lower courts.
8. Courts strike down sectarian legislative prayers.
9. Christian student groups demand university recognition: non-discrimination vs. free exercise.
10. Accommodation of Muslim religious beliefs and practices increases.

Also you might want to compare my picks with the Religion Newswriters Association's top 10 news events of 2005, a somewhat broader category than mine.

Judge Denies Request To Amend Indiana Legislative Prayer Ruling

Indiana federal district judge David Hamilton on Wednesday denied a request to amend his order banning sectarian prayer in the Indiana House of Representatives. (See prior posting). This clears the way for an appeal. House Speaker Brian Bosma argued that the ruling was too vague to enforce. The Indianapolis Star today reports that the refusal was accompanied by this warning from Judge Hamilton: "If the speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening. In that unlikely event, the court will be able to take appropriate measures to enforce" the injunction.

Hindu Couple Appeals Ban On Cows In City Limits

Yesterday's New York Newsday reports that a Hindu couple, Stephen and Linda Voith, earlier this month filed an appeal of a New York trial court's decision that prohibits them from keeping their six cows within the city limits of Angelica, NY. An Angelica village ordinance prohibits the keeping of farm animals without a permit unless the owner has at least 10 acres of land on which the animals can graze. Hinduism considers protecting cows a sacred obligation. The Voiths, members of the Krishna Consciousness branch of Bhakti Hinduism, claim that the cows are not farm animals. They see them as being among their family members and integral to the practice of their religion. A supporter of the Voith's position has even created a website to explain and advocate their cause.

Contempt Finding After Settlement Of Church Dispute Dismissed

In Foster v. Collins, (TN Ct. App., Dec. 27, 2005), a Tennessee appellate court dismissed a case involving a dispute between church members and church leadership over expenditure of church funds and renewal of the employment contract of the church's pastor, Dr. Frank Thomas. Originally a group of church members sued claiming that members should vote on whether or not to retain Thomas. Church leadership agreed to hold an election under court-ordered election guidelines. Members voted to renew, and plaintiffs then filed a petition to hold the leadership in contempt for violating the election guidelines. The parties negotiated a settlement of this claim, but then members filed another series of contempt petitions, alleging violation of that settlement agreement. The trial court found defendants in contempt. However, the Court of Appeals ordered the case dismissed, finding a lack of jurisdiction from the beginning because selection and termination of clergy are ecclesiastical matters in which courts cannot, under the First Amendment, interfere. Since the order on which the Chancery Court based its finding of contempt was void, the court could not find disobedience of that order constituted contempt.

RLUIPA and Church Signs

In Baltimore County, Maryland, the zoning Board of Appeals is considering another twist on RLUIPA, according to yesterday's Towson Times. In June, a state circuit court judge ordered the Board to consider the impact of RLUIPA on the request by Trinity Assembly of God Church in Ruxton for a zoning variance to permit it to put up a neon, 25-foot-high, 250-square-foot sign with a changing electronic message. The Church wants to place the sign on its property next to the Baltimore Beltway to help eastbound drivers find the megachurch. At hearings on Dec. 21, Trinity's lawyer, C. William "Bud" Clark, argued that it would place a "substantial burden" on the church to require a smaller sign because there would be no room for scriptural messages or times of services. The county argued however that neutral application of sign controls in a residential zone is not a burden on religious exercise. The Board plans public deliberations on the matter at a future date.

O Centro Oral Argument Transcript Now Online

The full transcript is now online of the November 1 oral arguments in the U.S. Supreme Court in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal. The case involves the federal government's attempt to bar a New Mexico church from using a hallucinogenic tea in religious ceremonies. (See prior posting.) Usuallly transcripts are posted by the Supreme Court 2 to 3 weeks after argument. The Court did not explain the delay in this case.

Hawaiian Group In Contempt For Refusing Disclosure of Artifacts

Hawaii KITV reported yesterday on the latest installment in the dispute between Hui Malama and 13 other Hawaiian groups. (See prior posting.) Hawaii federal district court judge David Ezra Tuesday found four members of Hui Malama I Na Kupuna O Hawaii Nei in contempt and jailed one of them-- Edward Halealoha Ayau, executive director of the group-- for refusing to say where they buried Native Hawaiian burial artifacts borrowed from Bishop Museum. Other Hawaiian groups had claimed that they had a right to participate in determining the disposition of the objects. Hui Malama refused to obey the court order to return the artifacts both because they said the cave could collapse if they opened it, and because their religious beliefs hold that digging up the artifacts will violate the kupuna (ancestors). Today's Honolulu Star-Bulletin chronicles the courtroom disruptions that Judge Ezra faced during the contempt hearing.

Orthodox Jewish Group Supports Alito

The Orthodox Union, representing a large segment of Orthodox Jews in the United States, has sent a letter to the Senate Judiciary Committee supporting Supreme Court nominee Samuel Alito, Jr. , according to a report yesterday from the JTA. The letter from O.U.’s Institute for Public Affairs said it is impossible to view Alito’s positions on the separation of church and state as out of the mainstream. "Only those who would advocate the most extreme views of religion-state relations in America — either total separation or total integration — could assert as much," the letter said.