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.

Malaysia Court Rules Against Hindu Widow On Burial

In Malaysia today, a High Court judge held that he had no jurisdiction to overrule the findings of a Sharia court that an ex-army commando, M. Moorthy, was a Muslim convert and should be buried as a Muslim. Moorthy, who Died December 20, took part in a nationally celebrated Malaysian expedition to Mount Everest in 1997. According to today's China Post, the High Court refused to turn Moorthy's body over to his Hindu wife, instead giving possession to the Islamic Affairs Department. Judge Raus Sharif also refused to issue an order preventing cremation or burial of body while Moorthy's widow appeals. The Islamic Affairs Department did not provided any documentary proof of the Moorthy's alleged conversion, saying he did it verbally. His widow claims he remained a Hindu.

Curandero Indicted For Practicing Medicine Without License

In Travis County, Texas on Tuesday, William G. Martinez of San Antonio was indicted for practicing medicine without a license after he advertised his services as a "curandero" (a Santeria spiritual healer or witch doctor). Today's Austin-American Statemsan reports that an Austin man suffering from stomach pains responded to Martinez's television advertisement, and was told that he had three animals in his stomach. Martinez treated the man with charcoal and an unknown liquid, and later conducted religious rituals to rid him of his ailments, for which Martinez (also known as Gregorio) was paid almost $9000.

Korean Commission Urges Alternate Service For Conscientious Objectors

South Korea's National Human Rights Commission Monday recommended that the Ministry of Defense and the National Assembly find alternate forms of service for conscientious objectors who refuse military conscription. The Korea Times reports that the Ministry of Defense responded negatively to the recommendation. The Chosun Ilbo editorialized against the recommendation, pointing out that last year Korea's Constitutional Court upheld the Military Service Law that punishes conscientious objectors, saying "a recognition of conscientious objection harms the common benefit of national security, a prerequisite to the state's survival and all freedoms." The editorial argues that at least the Commission should draw up criteria to determine when a conscientious objector is genuine.

Texas School Agrees To Accommodate Muslim Prayer

Last week, the Becket Fund for Religious Liberty announced the agreement it had reached with Richardson, Texas school officials to accommodate religious practices of Muslim high school students. Muslim students in L.V. Berkner High School (outside Dallas) complained that they were no longer being allowed to pray their daily zuhr prayer on campus, or at best were required to forego their lunch in order to do so. Between October and April, the required time for such prayers falls only while the school day is in session. A December 16 letter from the school board's general counsel describes the detailed arrangement for students to "step outside the classroom just after the tardy bell to the hall alcove closest to the classroom to complete the prayer". The full text of the exchange of letter between school officials and the Becket Fund is available online.

Israeli Politicians Argue Over Hanukkah Grants To Yeshiva Students

Today's Haaretz reports on bitter political exchanges between members of Israel's Knesset as Finance Committee Chair Yaakov Litzman (Agudath Israel) Monday obtained an extra Hanukkah grant for yeshiva students. The grants total NIS 44 million. Over the next few days, each unmarried student in the ultra-Orthodox religious schools will receive NIS 330 (US $72), and each married student will get NIS 600 (US $130). MK Ronnie Brizon, of the secularist party, Shinui, was outraged, saying that the government was disbursing funds "like hot potato pancakes on Hanukkah." Brizon called the yeshiva students "people who contribute almost nothing to society, but receive almost everything from it".

No Liquor In Massachusetts On Monday After Christmas

Many residents of Massachusetts will be surprised to find that no liquor may be purchased today, says Saturday's Boston Globe. In 2003, Massachusetts law (Title XX, Chap. 138, Sec. 33) was amended to eliminate many of the restrictions on Sunday liquor sales. However, the legislature retained the prohibition on sales on Christmas day, and on the day after Christmas when Christmas falls on Sunday. The rationale for the Monday ban is not clear, but Massachusetts Historical Society librarian Peter Drummey suggested that it was meant to curb drunkeness on the day Christmas is observed by the state, as well as on the day it is celebrated by religion.

Free Exercise Challenge To Polygamy Ban Avoided

Article 20, Sec. 2 of the Arizona Constitution prohibits polygamy. An accused Colorado City member of the Fundamentalist Church of Jesus Christ of Latter Day Saints was planning to challenge the validity of that provision by asserting his religious freedom rights under the U.S. Constitution. However, the Provo, Utah Daily Herald reported on Saturday that his attempt to do this has been stymied as prosecutors dropped an underage sex charge against Randolph J. Barlow, and proceeded only on charges of sexual assault where the defense would not be relevant.

Recently Published Books On Religion, Law and Politics

Recently published books of interest to Religion Clause readers:

Barbara A. McGraw and Jo Renee Formicola (eds.), Taking Religious Pluralism Seriously: Spiritual Politics on America's Sacred Ground (Baylor Univ. Press). Reviewed in Sunday's New York Times.

Elizabeth Anne Oldmixon, Uncompromising Positions: God, Sex, and the U.S. House of Representatives (Georgetown Univ. Press).

Birgit Meyer and Annelies Moors (eds.), Religion, Media, and the Public Sphere (Indiana Univ. Press).

Henrik Syse, Natural Law, Religion, and Rights (St. Augustine's Press).

Santorum Withdraws From Thomas More Center Advisory Board

The decision last week by Judge John E. Jones in the Kitzmiller case rejecting the teaching of intelligent design in public schools has had its own political fallout, according to an AP story last week. Last Thursday, Republican Pennsylvania Senator Rick Santorum withdrew from the advisory board of the Thomas More Law Center which had backed the school board's experiment in teaching intelligent design and had represented the school board in the litigation. Santorum is in the midst of a hotly contested Senate race. He explained that his previous statements backing intelligent design meant that teachers should have the freedom to mention intelligent design -- not be required to do so. Santorum's leading Democratic challenger in his 2006 reelection bid, state Treasurer Robert P. Casey Jr., accused him of political expediency.

Menorah Compromise In Peabody, Massachusetts

In Peabody, Massachusetts, the church-state issues involved in menorah displays on public property have led to a compromise plan for this year, according to yesterday's Salem News. Last year, Chabad lit a menorah at City Hall on the first night of Hanukkah, and the mayor participated in the ceremony. This year, when a repeat of the ceremony was suggested, the city's Clergy and Ministerial Association-- which includes the city's Jewish congregations-- raised church-state concerns. So Mayor Michael Bonfanti reached a compromise with the groups. He did not attend the City Hall lighting ceremony last night, and a sign was placed on the menorah showing that it belongs to Chabad and not the city. In addition, though, instead of a one-day lighting, the menorah will be out for all eight days of Hanukkah this year.

President's Christmas Message

Here is President George W. Bush's 2005 Christmas Message, issued on Dec. 19:

'Behold, a virgin shall conceive and bear a son, and his name shall be called Emmanuel' which means, God with us. ---Matthew 1:23

More than 2,000 years ago, a virgin gave birth to a Son, and the God of heaven came to Earth. Mankind had received its Savior, and to those who had dwelled in darkness, the light of hope had come. Each Christmas, we celebrate that first coming anew, and we rejoice in the knowledge that the God who came to Earth that night in Bethlehem is with us still and will remain with us forever.

Christmas is a season of hope and joy, a time to give thanks for the blessing of Christ's birth and for the blessings that surround us every day of the year. We have much to be thankful for in this country, and we have a responsibility to help those in need. Jesus calls us to help others, and acts of kindness toward the less fortunate fulfill the spirit of the Christmas season.

On Christmas, we pray for freedom, justice, and peace on Earth. We remember those who have made the ultimate sacrifice for our country and for our freedom, and we ask for God's blessing on their loved ones. We ask God to watch over all of our men and women in uniform. Many are serving in distant lands, helping to advance the cause of freedom and peace. Our entire Nation is grateful to them and prays for their safe return.

Laura and I send our best wishes for a blessed and merry Christmas.

Iraqi Shiites Extend Christmas Greetings To Christian Countrymen

Apparently attempting to calm fears that a theocratic Shiite government is about to be established, the Iraqi government went out of its way to wish Iraqi Christians a Merry Christmas on Saturday. M&C News reports on the attempt to assure Iraqi Christians that they will have a role in the country's political future. Al-Iraqiya television, a station that reflects the government's views, gave air time for Moslem Iraqis to send greetings. A Christmas eve program featured telephone calls from inside and outside Iraq with holiday greetings to the 750,000 Christians in the country. The program also covered an hour-long mass from inside Baghdad's St. Joseph's Chaldean church. President Jalal Talabani, Vice-President Ghazi al-Yawer and Shiite Interior Minister Bayan Jaber Solagh all appeared on the program.

National Menorah To Be Lit Tonight

Tonight at 4:00 p.m., not far from the National Christmas Tree on the Ellipse, the first candle of the National Menorah will be lit. The festival of Hanukkah begins at that time. The AP reports that Homeland Security Secretary Michael Chertoff will be taking part in the ceremony. The National Menorah stands 30 feet tall - the maximum allowed by Jewish law.

Defense Bill Includes Rita-Katrina School Voucher Program

The Defense Appropriations Bill passed by Congress on Thursday included a school voucher program for students displaced by Hurricanes Rita and Katrina. According to the Alliance for School Choice, the bill provides tuition reimbursement up to $6,000 per student ($7,500 for special education students) for public or private schools that provided educational refuge. The funds will run through state and local governments. On Thursday, the Anti-Defamation League issued this statement:

We are very sympathetic to the plight of the students who attend the devastated schools in the Gulf Coast region, but this funding scheme does not provide appropriate firewalls against taxpayer funding of religious instruction and proselytizing – and sets a disturbing precedent for the future.

The provisions approved by Congress do not include necessary prohibitions against using these funds for religious education – or even worship services. Under the bill, parents would be forced to affirmatively act to 'opt-out' their children from these religious worship activities or classes. In addition, this bill would permit federally funded religious discrimination in hiring teachers for these private and religious schools.

Tax Court Rejects Establishment Clause Claim On Deductions

Sklar v. Commissioner, decided by the U.S. Tax Court on Dec. 21, held that no part of tuition paid to an Orthodox Jewish day school was deductible for federal income tax purposes as a charitable contribution. The school offered both secular and religious instruction. Taxpayers had argued that the portion paid for religious instruction was deductible under Section 170 of the Internal Revenue Code and that the IRS's refusal to allow a deduction violated the Establishment Clause because the IRS allows members of the Church of Scientology to deduct as charitable contributions "auditing" and "training" payments. However, the court rejected these arguments, distinguishing cases involving churches organized exclusively religious purposes. The taxpayers had previously litigated similar claims for an earlier year's tax return. [Thanks to Steven H. Sholk for the lead.]

UPDATE: Here is a link to the 9th Circuit decision in the earlier litigation. [Thanks to Expatriate Owl.]

Mosques Secretly Checked For Radiation

A story in U.S. News & World Report on Thursday revealed that the federal government since 9/11 has run a top secret program to monitor radiation levels at over a hundred Muslim sites in Washington, D.C., as well as in 5 other cities. The sites included prominent mosques. Federal officials claim that warrants are not required for this kind of radiation sampling, but some legal scholars disagree. Officials said that the monitoring targets were not chosen on the basis of religious affiliation or ethnicity, but only on the basis of intelligence findings. The equipment used took air samples near suspected targets. In some cases, the tests involved driving a vehicle into a mosque parking lot.

Church Sues San Diego Over Park Fee Schedule

In San Diego, California last Tuesday, Canyon Ridge Baptist Church sued the city of San Diego over the rental fee schedule for the Kearney Mesa Recreation Center, operated by San Diego's Park and Recreation Department. The complaint (full text) alleges that the fee schedule unconstitutionally discriminates against religious groups by charging them the "Private Group" rather than the "Community Group" rate for using the facility. Today's Christian Post reported on the suit. Representing the church, the Alliance Defense Fund said: "Landlords shouldn't treat Christian tenants any differently than other tenants. Cities cannot single out religious organizations for unequal treatment compared to all other similarly situated groups."

Pope Held To Have Diplomatic Immunity

The Associated Press reports that on Thursday, a federal district court in Houston, Texas held, at the urging of the U.S. Justice Department, that Pope Benedict XVI has diplomatic immunity. (See prior posting.) The issue arose in a civil lawsuit accusing the Pope of conspiracy to cover up the sexual abuse of minors by a seminarian. Judge Lee Rosenthal wrote: "After a suggestion of immunity is filed, it is the court's duty to surrender jurisdiction." The ruling found that Benedict was the "head of a foreign state, the Holy See," not merely the head of a religious entity. Previously, plaintiffs' lawyer in the case said that if the court found diplomatic immunity here, he would challenge the constitutionality of U.S. recognition of the Vatican.

Judge Refuses To Prevent Border Stops For Islamic Spirit Attendees

A federal district court judge in Buffalo, New York has rejected the request of several Muslim-Americans for an order that would prohibit border agents from stopping and searching individuals based solely on their attendance at the upcoming Reviving the Islamic Spirit conference in Toronto. (See prior posting.) The Associated Press reported that on Thursday U.S. District Judge William Skretny dismissed the suit that was brought to prevent a repeat of last year's border problems. While characterizing last year's stops as "understandably frustrating," he said that the searches did not violated the attendees' constitutional rights to practice religion and avoid unlawful searches. He wrote: "Plaintiffs were delayed for an extended period of time and subjected to unexplained inspection techniques that were inconvenient and made them feel uncomfortable. The government readily admits that plaintiffs' experience at the border was not ideal . . . As unfortunate as this incident may have been, I find that it was not unconstitutional."

On its website, the New York Civil Liberties Union, along with a release decrying the decision, has an intake form for use by anyone detained after attending this year's conference.

UPDATE: The full opinion in Tabbaa v. Chertoff is now available at 2005 U.S. Dist. LEXIS 38189 (WD NY, Dec. 22, 2005).

Pew Survey On Attitudes To Christmas Greetings and Displays

A survey released on December 15 by the Pew Research Center for the People and the Press reveals a mixed attitude by average Americans to the "Christmas wars". In response to one question, 60% of those surveyed say they prefer the greeting "Merry Christmas" over "Happy Holidays". However when given the option of answering that the form of greeting doesn't matter to them, 45% chose that alternative and 12% said they prefer a less religious greeting than "Merry Christmas".

In response to another question, 83% of respondents favored the display of Christmas symbols on public property, but only 44% supported them if they are displayed alone without symbols of other traditions. Finally, more Americans said they are bothered at least to some extent by the commercialization of Christmas (52%) than were concerned about opposition to religious symbols in public places (35%).

Scientologist Wins German Court Challenge of Hamburg Practices

In Germany, the Church of Scientology has won a court victory against governmental practices that have been criticized by the U.S. State Department's International Religious Freedom Report. Federal and seven state Offices for the Protection of the Constitution in Germany have had the Church of Scientology under observation, claiming that the Church's teachings and practices are opposed to the democratic constitutional order or violate human rights. (Background memo.) Scientology's website reported on Thursday that the Federal Supreme Administrative Court in Leipzig has ruled that the Hamburg state government violated the constitutional right to freedom of religion of a Scientologist when it advised a private employer to have anyone employed by or conducting business with it sign a "filter" to disavow the works of L. Ron Hubbard, founder of Scientology.

Recently Published In Law Journals

The Autumn 2005 issue of the Journal of Church and State has been published. Its table of contents and excerpts are available online.

From SmartCILP: L. Scott Smith, Constitutional Meanings of "Religion" Past and Present: Explorations In Definition and Theory, has recently been published in 14 Temple Political & Civil Rights Law Rev. 89-142 (2004).

Finland Looks At Its Guidelines On Christmas In Schools

Helsingen Sandomat reports that Finland's National Board of Education is rethinking it present Guidelines on religious celebrations in schools. Under Finland's Constitution (Section 11), students must be allowed to opt out of activities that violate their religious beliefs. According to an earlier report by the same paper, the growth of Finland's Muslim population seems to be the impetus for the rethinking. Under present Guidelines, an opt-out is permitted for church services and morning assemblies with a religious theme. However, Kirsi Lindroos, Director General of the Board, says that neither the singing of hymns nor the presentation of the events surrounding the birth of Jesus make an event a religious occasion that pupils would have the right to opt out of. She says that a line is crossed if there are prayers or the reading of the Biblical Christmas Story.

In most schools, there have been negotiations with parents of children of various religious denominations in order to have a celebration that everyone can attend. Some schools hold two different Christmas celebrations - a neutral one in school and one with more religious content in a nearby church. In one school, the Christmas Gospel texts are read at the beginning of the school Christmas party, and non-Christian children do not come to the party until after the reading is over.

Bill Assures Jamboree Funding and Equal Local Treatment For Boy Scouts

While the Defense Appropriations Act (H.R. 2863) yesterday stumbled temporarily over ANWR oil drilling, less attention has been given to another provision in the Conference version of the bill. This provision, almost certain to eventually be adopted, directs the Pentagon to continue to provide support for the National Boy Scout Jamboree. This directive was included despite a federal court ruling last June finding that, given the scouts' substantial religious component, such support violates the Establishment Clause. (See prior posting.)

Buried in Section 8173 of the 293-page appropriations bill, the provision is part of the "Support Our Scouts Act of 2005" contained in the Defense Appropriations Act. A press release from Senate Majority Leader Bill Frist who authored the provisions praised the bill.

[CORRECTED] The Act also requires state and local governments that receive federal housing funds and community development money to afford equal access for the Boy Scouts to meet in public facilities that are open to other groups. Yesterday's 365Gay reports that Congressman Barney Frank objected to the provision, saying:

The Boy Scouts of America have been found by States and cities to be violating their anti-discrimination policies with regard to both sexual orientation and religion, and some cities have said that they do not want anyone who fails to follow their State or city's policy getting free facilities. That I suppose can be debated or not as to whether it is right or wrong, but it does not seem to me that there is any argument for having it in the Armed Services authorization bill in a Congress run by supposed States rights conservatives, a provision that says to every city in America you will let the Boy Scouts use your facilities for free whether or not you think they violate the law against discrimination based on religion or sexual orientation.

Russian Authorities Hinder Return Of Moscow Chief Rabbi

FSU Monitor this week outlines a complex dispute between Russian authorities and one of Moscow's two competing Chief Rabbis, Pinchas Goldschmidt. In September, an immigration officer refused to readmit Goldschmidt to the country after he returned from a trip to Israel. No one is quite sure who pressed for this to happened. One theory focuses on Vladimir Slutsker, a banker and engineering tycoon who had been president of the Russian Jewish Congress. Slutsker is in a real estate dispute with Rabbi Goldschmidt.

Another theory is that Rabbi Berl Lazar who represents the Lubavitch-Chabad movement in Russia, and who is the competing Chief Rabbi, was involved. The U.S. State Department and the foreign ministries of both Israel and Switzerland have become involved in lobbying Russia on Goldschmidt's behalf. In early November, the Internal Affairs Ministry informed Goldschmidt that he had been deemed a threat to national security. However by the end of November, he was invited to re-apply for a visa. On December 2, Goldschmidt received word that a new one-month visa had been approved.

California Lutheran School Sued Over Policy on Lesbians

A suit filed last week in state court in Riverside, California raises the issue of whether a religious school can avoid the anti-discrimination provisions of California's Unruh Civil Rights Act by invoking the school's right to freedom of religion and association. The North County Times reported Tuesday on the suit against the California Lutheran High School Association that oversees Wildomar's Cal Lutheran High. The school expelled two female students who were suspected of having a lesbian relationship with each other. In a letter to the students' parents, the school said that the "bond of intimacy" that exists between the two girls is "unchristian". The students' attorney, Christopher Hayes, argues that the school is a "business establishment" under the anti-discrimination law.

9th Circuit Rejects Prisoner's Religious Diet Claim

In Stewart v. Stewart, (Dec. 16, 2005), the U.S. 9th Circuit Court of Appeals upheld the dismissal of a former prisoner's free exercise claim, finding that Arizona prison officials had a clear penological interest in requiring inmates on the prison's religious diet to sign for each meal. It also rejected plaintiff's claim that serving him regular meals, rather than the religious diet, for six months amounted to cruel and unusual punishment.

U.S. House Resolution Criticizes Saudi Religious Education

On Monday, the U.S. House of Representatives passed H. Con Res. 275 urging the government of Saudi Arabia to speed up educational reform in that country. Of particular interest are the findings in the "Whereas" clauses of the Resolution that focus on the nature of religious education in the Saudi Kingdom. The introductory clauses point out that "Islamic religious education is compulsory in public and private schools at all levels in Saudi Arabia" and that "the religious curriculum is written, monitored, and taught by followers of the Wahhabi interpretation of Islam, the only religion the Government of Saudi Arabia allows to be taught".

The preamble go on to say that "rote memorization of religious texts continues to be a central feature of much of the educational system of Saudi Arabia, leaving thousands of students unprepared to function in the global economy of the 21st century." It continues: "some textbooks in Saudi Arabian schools foster intolerance, ignorance, and anti-Semitic, anti-American, and anti-Western views", and "these intolerant views instilled in students make them prime recruiting targets of terrorists and other extremist groups".

The vote on the Resolution was 351 Yes; 1 No; 2 voting Present. Here is the floor debate on the measure. The lone No vote was Republican Texas Congressman Ron Paul.

6th Circuit: Surprising Ten Commandments Ruling

A surprising 10 Commandments decision was handed down by the U.S. 6th Circuit Court of Appeals yesterday. ACLU of Kentucky v. Mercer County (Dec. 20, 2005), involved a display of historical documents, including the 10 Commandments, in the Mercer County courthouse. The display, titled "Foundations of American Law and Government", is identical to the one found unconstitutional by the U.S. Supreme Court last June in the McCreary County case. However, according to the 6th Circuit, a very different history of of the county's purpose was present here. The 6th Circuit upheld this display, saying:

Here, unlike McCreary County, Mercer County’s stated purpose was more than a mere "litigating position." Instead, it is supported by context, including the explanatory document and the eight other objectively historical and secular documents. A reasonable observer would not view this display as an attempt by Mercer County to establish religion. Instead, he would view it for what it is: an acknowledgment of history.

The court continued:

The ACLU’s argument contains three fundamental flaws. First, the ACLU makes repeated reference to "the separation of church and state." This extra-constitutional construct has grown tiresome. The First Amendment does not demand a wall of separation between church and state.... Second, the ACLU focuses on the religiousness of the Ten Commandments. No reasonable person would dispute their sectarian nature, but they also have a secular nature that the ACLU does not address.... Third, the ACLU erroneously–though perhaps intentionally–equates recognition with endorsement. To endorse is necessarily to recognize, but the converse does not follow.

While the court found a secular purpose in the display, Carroll Rousey, a retired dry-wall contractor who paid for and put up the 2001 Mercer County display, was quoted in an article in today's Columbus, Georgia Ledger-Enquirer as saying, "I feel that this is what the Lord wanted me to do."

Christian Coalition's 2006 Agenda

The Christian Coalition has set its legislative agenda for 2006, according to a report carried on Tuesday by the Christian Wire Service. Its top 10 goals are (1) support of multicast/ must-carry legislation to protect Christian broadcasters; (2) confirmation of Pres. Bush's judicial nominees; (3) making existing federal tax cuts permanent; (4) passing the Unborn Child Pain Awareness Act; (5) passing the Broadcasting Decency Enforcement Act; (6) supporting legislation to stop discrimination against Christians in the military; (7) passing the Child Interstate Abortion Notification Act; (8) passing the Houses of Worship Free Speech Restoration Act; (9) passing legislation to protect display of the 10 Commandments; and (10) passing Holly’s Law which would suspend sales and investigate the abortion pill, RU 486.

Editorials Support Judge's Intelligent Design Decision

From around the nation, newspaper editorial comment this morning strongly supports yesterday's decision by Pennsylvania federal district court judge John E. Jones' banning Intelligent Design from science classrooms. Here are links to a sampling of editorials: Detroit Free Press, Provo Utah Daily Herald, Harrisburg Pennsylvania Patriot-News, Wichita Kansas Eagle, Dayton Ohio Daily News, Philadelphia Daily News, Baltimore Sun, Pittsburg Kansas Morning Sun.

San Bernadino Student Group Challenges Nondiscrimination Policies

The Associated Press yesterday reported on a battle over university anti-discrimination policies taking place at California State University, San Bernadino. There the Christian Student Association is seeking university recognition that will entitle it to funding and use of university facilities. However the university has refused to approve the group's charter. California law prohibits student groups at public universities from excluding students because of their religion or sexual orientation. The CSA's proposed constitution includes a statement on sexual morality and requires members and officers to be Christian. Here, as at other universities where similar disputes are taking place, CSA argues that the non-discrimination requirements violate the group's religious freedom. The organizer of the CSA chapter at San Bernadino is Ryan Sorba, who is also president of the campus Young Republicans and is a controversial figure on campus. Similar anti-discrimination policies at California State University campuses in Long Beach and San Diego are the subject of a lawsuit filed last month by the Alliance Defense Fund. (See prior posting.)

No Appeal Likely In Intelligent Design Case

It is unlikely that today's Intelligent Design decision from Dover, Pennsylvania will be appealed. (See prior posting.) In November, Dover voters ousted almost all of the school board members who had initiated the policy and replaced them with individuals who oppose the teaching of intelligent design in science classes. (See prior posting.) The Associated Press reports today that the new school board president, Bernadette Reinking, said the board intends to remove intelligent design from the science curriculum and place it in an elective social studies class. As to today's court decision, she said, "As far as I can tell you, there is no intent to appeal."

Dover School District Loses Intelligent Design Case

Pennsylvania U.S. District Judge John E. Jones III today ruled unconstitutional a required disclaimer calling Dover, Pennsylvania high school students' attention to the theory of intelligent design. (See prior posting.) Reports on today's court decision are available from both CNN and BBC News. The contested statement was required by the Dover Area school board to be read in all 9th-grade biology classes. In its opinion, the court found that "the classroom presentation of the disclaimer, including school administrators making a special appearance in the science classrooms to deliver the statement, the complete prohibition on discussion or questioning ID, and the 'opt out' feature all convey a strong message of religious endorsement" by government.

The 139-page opinion in Kitzmiller v. Dover Area School District is a strong endorsement of arguments by the plaintiffs that the school board's action violated the First Amendment's Establishment Clause. The full opinion is available online here. [Thanks to Ed Brayton for posting it].

In finding that the Dover school board violated the Establishment Clause of the U.S. Constitution and Article 1, Sec. 3 of the Pennsylvania constitution , the court applied both the “endorsement” test and the Lemon test.

It held that an objective student would view the disclaimer read in class as a strong endorsement of religion; and that an objective adult member of the Dover community, aware of the social context in which the ID policy arose, would view school board policy and the conduct of board members as a strong endorsement of a religious view.

Applying Lemon, the court found that the language, legislative history and historical context in which ID policy arose "inevitably lead to the conclusion that Defendants consciously chose to change Dover’s biology curriculum to advance religion". The court made extensive findings that Intelligent Design "is not science". It found that ID violates the ground rules of science by invoking supernatural causation; it employs "the same flawed and illogical contrived dualism that doomed creation science"; and ID has failed to gain acceptance in the scientific community. The court then concluded that since ID is not science, its only real effect is the advancement of religion.

In concluding his opinion, Judge Jones wrote:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board’s decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

House of Lords Permits Sex Discrimination Claim By Minister

Great Britain's House of Lords has overturned a decision of Scotland's highest court, the Court of Session, and has permitted a minister to assert a claim for sex discrimination in employment, according to Personnel Today. Helen Percy claimed she lost her clergy position with the Church of Scotland after having sexual relations with a church elder, even though the church had "not taken similar action against male ministers who are known to have had/are having extra-marital sexual relationships". In Percy v. Church of Scotland Board of National Mission, (Dec. 15, 2005), the House of Lords in a 4-1 decision held that a minister is an employee protected by the Sex Discrimination Act of 1975. The 1921 Church of Scotland Act gives the church the right to govern its own affairs on "matters spiritual. But the House of Lords held that "a sex discrimination claim would not be regarded as a spiritual matter even though it is based on the way the church authorities are alleged to have exercised their disciplinary jurisdiction".

RLUIPA Does Not Apply To Eminent Domain

Section 8 of the Religious Land Use and Institutionalized Persons Act limits its application to any "zoning or landmarking law, or the application of such a law, that limits or restricts a claimant's use or development of land... ." In Faith Temple Church v. Town of Brighton, 2005 U.S. Dist. LEXIS 33389 (WD NY, Dec. 19, 2005), a New York federal district court held that RLUIPA does not apply to a city's use of eminent domain to take land to expand a park. Faith Temple Church had contracted to purchase the 66-acre site for a new church campus. The court said, "Eminent domain is hardly an arcane or little-known concept, and the Court will not assume that Congress simply overlooked it when drafting RLUIPA." Today's Rochester Democrat and Chronicle reports on the decision.

Dover "Intelligent Design" Decision To Be Released Later Today

MSNBC reports that yesterday the Harrisburg, Pennsylvania federal district court sent out an advisory e-mail saying, "Judge [John E.] Jones is expected to file his opinion in the Kitzmiller v. Dover case at some point" on Tuesday. The 6-week long trial challenging the Dover, Pennsylvania school board's decision to teach students about the theory of intelligent design has captured extensive national attention. (See prior posting.) The pleadings, briefs, and parties' proposed findings can all be accessed from a special page on the district court's website. Religion Clause will post information on the decision later today as soon as it becomes available.

Op Eds On Church-State

Emotions on issues of church and state run high this time of year. I have tried not to fill Religion Clause with endless links to op-ed pieces, even though ones on-topic appear in newspapers daily. However, occassionally it is worth pointing to examples that are particularly well-written. Here are two from this past weekend's papers. One is from Cynthia Tucker, editorial page editor for the Atlanta Journal-Constitution, titled Campaign For Religious State Is No Blessing. The second from Saturday's Toledo, Ohio Blade by Rabbi Barry Leff is titled Yes, Virginia, It Really Is A Christmas Tree.

Magistrate Defers To Prison Security Concerns In RLUIPA Case

An extreme example of deference to prison authorities' claims in RLUIPA cases is reflected in a recently available Magistrate's decision, Spratt v. Wall, 2005 U.S. Dist. LEXIS 33266 (D RI, Nov. 21, 2005). A convicted murderer, Wesley Spratt, was a gifted preacher who for seven years had preached on a weekly basis at Christian religious services in his Rhode Island prison's maximum security unit, always under the supervision of prison clergy. Spratt saw this as his calling from God. When the prison administration changed, however, Spratt was prohibited from continuing, and Spratt sued claiming an infringement of his free exercise of religion. Authorities argued that security is threatened whenever inmates are given positions of authority or perceived authority, citing unrest and violence at the prison during the 1970's. Accepting this claim, a federal Magistrate Judge found that there are no less restrictive means available to accomplish the prison system's compelling security interest and recommended that summary judgment be granted to defendants.

French Government Issues Brochure For Hajj Pilgrims

January 8, 2006 marks the beginning of this year's Hajj, the pilgrimage to Saudi holy sites required at least once in a lifetime from faithful Muslims. Islam Online reported last week that despite its emphasis on secularism, the French government has published a 5-page guide for French Muslims heading to Saudi Arabia. The French Foreign Ministry has issued thousands of the brochures in French and Arabic to provide key advice, like avoiding deadly stampedes. The brochure also contains basic information on legal rights against travel agents who default on their promises. Last year, 3,000 French pilgrims were left stranded at Saudi airports due to disorganization and unconfirmed flight reservations by some tour operators. Meanwhile Saudi Arabia has enacted a new law to regulate Hajj tour operators. However it does not take effect until after this year's Hajj.

Study Results Boost Faith-Based Prisons

Faith based programs in prison got a boost this month by a newly-published study. Prof. Kent R. Kerley, of the criminal justice department at the University of Alabama at Birmingham was lead author. The Washington Times yesterday reported on the study, conducted at the Mississippi State Penitentiary, which found that "religiosity" -- believing in a higher power, attending worship services regularly and participating in faith-based prison programs -- directly reduces inmate arguments, and indirectly then reduces the fights that typically follow arguments. The article, titled Religious Participation and Negative Prison Behaviors is in Vol. 44 Journal for the Scientific Study of Religion, pp. 443-457. (Abstract). Co-authors with Dr. Kerley are Todd L. Matthews and Jeffrey T. Schulz.

House of Representative Supports Christmas Symbols

The Christmas wars found their way into Congress last week, as the House of Representatives on Thursday passed H. Res. 579 by a vote of 401 yeas, 22 nays, 5 voting present and 5 not voting:

Whereas Christmas is a national holiday celebrated on December 25; and Whereas the Framers intended that the First Amendment to the Constitution of the United States would prohibit the establishment of religion, not prohibit any mention of religion or reference to God in civic dialog: Now, therefore, be it Resolved, That the House of Representatives—
(1) recognizes the importance of the symbols and traditions of Christmas;
(2) strongly disapproves of attempts to ban references to Christmas; and
(3) expresses support for the use of these symbols and traditions, for those who celebrate Christmas.

Friday's Virginian-Pilot reported that the resolution was introduced by Rep. Jo Ann Davis, a conservative Christian member of Congress from Virginia. Speaking in favor of the proposal during House debate, Davis lamented, "Christmas has been declared politically incorrect." In response to concerns that her resolution amounted to government promotion of religion, Davis amended her original resolution to make clear that she wants to protect Christmas traditions simply "for those who celebrate Christmas."

Democratic Rep. Robert C. Scott, also from Virginia, accused Davis of being more concerned about the symbols of Christmas than the substance. He argued: "Instead of legislation that respects the spirit of Christmas, Congress in just these past few weeks has passed a budget that includes mean-spirited attacks on the least of us. For those who are hungry, we are cutting food stamps. For those who are sick, we are cutting Medicaid."

Alabama Bill To Permit Teaching About Bible

In Alabama, House Majority Leader Ken Guin has pre-filed HB 58 that, if enacted, will authorize public school systems to offer an elective course in grades 9-12 on the Bible's influence on history, arts and literature, according to Saturday's Montgomery Advertiser. The bill, however, has been criticized by some state school board members because it takes the unusual step of specifying the precise textbook that must be used in the elective course. It is The Bible and Its Influence, published by the Bible Literacy Project. (See prior posting.) The text book has been endorsed by advocates of church-state separation and by a wide spectrum of religious leaders. Nevertheless, some local school boards feel that their autonomy is threatened by the legislative imposition of particular books by title.

Muslim Prisoner Denied Right To Wear Beard

In Gooden v. Grain, 2005 U.S. Dist. LEXIS 32960 (ED Tex., Dec. 13, 2005), a Texas federal district court rejected the RLUIPA and equal protection claims of a Muslim prisoner who was prevented by the Texas prison system's grooming policy from growing a quarter-inch beard. The court held that the grooming policy did not not impose a substantial burden on the prisoner's practice of his religion. Alternatively, even if it did impose a substantial burden, it furthers the compelling governmental interest of security and does so by the least restrictive means. Finally the court found that the policy applied equally to all religious groups and was not adopted with the intent to discriminate against Muslims.

EU Says Spain Must End VAT Tax Exemption For Catholic Church

On Friday, the Commission of the European Union formally requested that Spain bring its tax arrangements with the Vatican in line with EU law. (EU Release.) It told Spain that EU tax law is violated by a 1979 agreement providing the Catholic Church an exemption from Spain's value added tax on the purchase of goods. Reporting on the development, Ireland Online pointed out that the EU did give Spain an alternative. Spain can charge the tax and then reimburse the Church for some or all of the tax that it has to pay.

Americans United Opposes Alito Nomination

On Friday, Americans United for Separation of Church and State issued a 22 page report opposing confirmation of Supreme court nominee Samuel A. Alito. (AU press release.) The report concluded:

Judge Alito has on occasion been solicitous of free exercise rights — at least for non-prisoners. On the other hand, he has given broad license to religious majorities to use the public schools and other official settings to broadcast their religious messages without regard for the competing rights and interests of religious minorities.... Both the straightforward holdings and the underlying tenor of Judge Alito’s decisions in Establishment Clause cases contrast sharply with Justice O’Connor’s views. Throughout her career on the Court, Justice O’Connor has been keenly attuned to the plight of religious minorities in society as a whole, and most especially in the public schools. But Judge Alito’s focus has been elsewhere: on religious majorities’ ability to express their views through governmental instrumentalities, at government owned facilities, and in government-organized enterprises like the public schools.

Helsinki Commission on Religious Freedom In Uzbekistan and Turkmenistan

On Dec. 14, the U.S. Helsinki Commission held a formal briefing at the Rayburn House Office Building on Religious Freedom in Uzbekistan and Turkmenistan. An unofficial transcript of the briefing is available online. Covering the briefing, the Christian Post on Friday reported that the two countries criminalize unregistered religious activity while registering few groups that apply.

Muslims Seek Advance Relief To Prevent Border Searches

Seeking to avoid a repeat of problems they faced last year (see prior postings 1, 2 ), a group of Muslim-Americans, represented by the New York Civil Liberties Union, asked a federal judge Thursday to allow them to travel to and return from a religious conference in Toronto later this month without being fingerprinted, photographed and held for hours at the border. The Associated Press reported yesterday that the plaintiffs are seeking a court order prohibiting border agents from stopping and searching Muslim-Americans based solely on their attendance at the annual Reviving the Islamic Spirit conference in Toronto. Homeland Security officials acknowledged subjecting those returning from last year's conference to lengthy security checks, but said they had reason to believe that people associated with terrorism planned to attend the conference. Judge William Skretny said he would rule on the request before the December 23 start of the conference.

Student Can Give Classmates Candy Canes With Jesus Story Attached

In Mansfield, Texas Thursday, Jaren Burch, a fourth grader who was at first told that he could not hand out candy canes with a story of their connection to Jesus attached at his class' party, was able to do so. Today's Fort Worth Star-Telegram reports that the reversal by school officials came after the Liberty Legal Institute sent a letter to the school demanding that the student's first amendment rights be respected. A school district spokesman said that the teacher had gone a bit too far in trying to be sensitive to students with different backgrounds at this time of year. The student's father, Jason Burch said, "I'm sick and tired of people trying to pretend that Christmas is not about Christ. There wouldn't be a Christmas without Christ. It goes against my son's First Amendment right. If a Muslim student brought something, I would not have a problem. If it was something I didn't agree with, then I would simply throw it away."

By the way, Snopes.com says the claim that candy canes originated to represent the letter "J" and the purity and blood of Christ is a false urban legend. However, it says, candy canes do have a Christmas connection. A choirmaster in Cologne Cathedral in 1670 persuaded craftsmen to make sticks of candy bent at the end to represent shepherds' crooks so he could hand them out to restless youngsters who were attending ceremonies around a living creche.

Indiana Legislative Prayer Case Being Appealed

Yesterday the Associated Press reported that Indiana House Speaker Brian Bosma is asking a federal judge to reconsider a decision prohibiting sectarian prayer in the Indiana House of Representatives. (See prior posting.) Indiana Attorney General Steve Carter filed a motion in federal district court in Indianapolis asking Judge David Hamilton to reconsider his recent opinion that found explicitly Christian invocations to be unconstitutional. The motion also asked the judge to stay his ruling pending the requested reconsideration. At the same time, the state filed formal notice of appeal in the case to the 7th Circuit Court of Appeals.

11th Circuit Hard On Evolution-Sticker Appellants In Oral Arguments

A panel of federal appellate judges were particularly harsh during oral arguments in the 11th Circuit yesterday as they heard an appeal of a district court case that held unconstitutional the placing of evolution disclaimer stickers on biology textbooks in Cobb County, Georgia. The Atlanta Journal Constitution reports that Judge Ed Carnes dominated much of the 40-minute arguments by tearing apart sections of district Judge Clarence Cooper's January ruling. At the end of the arguments, Carnes took the highly unusual step of calling Atlanta lawyer Jeffrey Bramlett, who argued on behalf of five parents who sued the school board, back up to the podium and suggested he may have mislead the Court of Appeals in his legal brief filed with the court. The other judges on the panel were also critical of the lower court opinion. Judge Bill Pryor said that Cooper relied on facts that "are just contradicted by the record." Some of the debate turned on the relationship in time of the school board's decision to adopt the stickers and a petition from 2,300 individuals complaining about the district's science textbooks.

Anti-Conversion Bill To Be Introduced In Indian State

BosNewsLife reported yesterday that the government of India's eastern state of Jharkhand says it is introducing an anti-conversion law "to protect the culture and identity" of "tribal people", despite opposition from Christian groups. Nearly one-third of Jharkhand's predominantly Hindu population still belongs to tribal groups, each with its own customs and language. The proposed law will likely require government approval to change one's religion or to perform a ceremony of conversion. Jharkhand's only Christian cabinet minister, Enos Ekka, said, "I do not feel it is appropriate to introduce such a bill. In a secular country like India everyone has the right to live on the call of his conscience."

Utah Judge Issues Opinion On FLDS Trust

Yesterday's Deseret Morning News reports that Utah Third District Judge Denise Lindberg issued a 30-page ruling Wednesday that essentially eliminates any religious influence over the assets of a trust that emerged from the FLDS church, a secretive polygamous sect. The judge's decision lays the groundwork for the trust to operate independently. The decision provided that new trustees will not be subject to any particular religious authority; that if the trust is ever terminated, its assets will not go to the FLDS Church but will be used for the benefit of people who contributed the property; and that any reformation of the trust should be done in such a way that trust assets are not used for illegal purposes such as polygamy. Also in her decision, Lindberg appointed a board of advisers to help Bruce Wissan, the current count-appointed special fiduciary who is temporarily managing the trust. (See prior related posting.)

Reluctant Judge Upholds Prisoner's RLUIPA Claim

Last week, in a case that has been in the courts for five years, a Michigan federal district court sustained a prisoner' claim for injunctive relief under the Religious Land Use and Institutionalized Person's Act, while expressing strong disagreement with Congress' decision to enact the statute. Johnson v. Martin, 2005 U.S. Dist. LEXIS 32278 (WD Mich., Dec. 7, 2005), involved the Michigan Department of Corrections' classification of the Melanic Islamic Palace of the Rising Sun as a security threat group. This resulted in prison officials taking from prisoners all Melanic literature and materials. Plaintiffs contend , however, that Melanic Literature is essential to practicing their religion.

While rejecting plaintiffs' First Amendment free exercise claim, the court found that RLUIPA imposes a heavier burden on the government. Finding that a total ban on Melanic Literature is not the least restrictive means available to assure prison security, the court held that RLUIPA had been violated. But the court's unhappiness with RLUIPA was clear, as it said:

Congress has taken the Supreme Court's fears in Turner [v. Safley] and made them a reality. Courts are now "the primary arbiters of what constitutes the best solution to every administrative problem," as RLUIPA "'unnecessarily perpetuate[s] the involvement of the federal courts in affairs of prison administration.'"... RLUIPA obligates this Court to cast aside its doubts about the dubious role it will play in prison administration, and therefore, this [Court will] enjoin MDOC from totally banning Melanic Literature from its institutions.

Clergy Litigation Scholar Nominated To Bench

The President yesterday nominated University of St. Thomas Law Professor Patrick J. Schlitz to be United States District Judge for the District of Minnesota. The Associated Press reports that Schlitz has represented religious organizations in more than 500 clergy sex abuse cases. In 2003, Schlitz published an article in Boston College Law Review titled The Impact of Clergy Sexual Misconduct Litigation on Religious Liberty.

2005 Report on Legal Developments Affecting Faith-Based Initiative Released

The Roundtable on Religion and Social Welfare Policy has just released a 118-page study, The State of the Law 2005: Legal Developments Affecting Partnerships Between Government and Faith-Based Organizations. Written by George Washington University Law Professors Ira C. Lupu and Robert W. Tuttle, this is the Roundtable's fourth Annual Report on the law governing the Faith-Based and Community Initiative. This year's report is divided into four parts: (1) Changes In the Composition of the Supreme Court-- Significance for Government Partnership With Faith-Based Organizations; (2) Gulf Coast Hurricanes and the Special Problems of Emergency Responses; (3) Judicial Developments Affecting Government Partnerships With Faith-Based Organizations; and (4) Federal-State Relations and public Partnerships With Faith-Based Organizations.

New Jersey Removes Charitable Immunity In Sexual Assault Claims

New Jersey is one of only three states that grant charitable immunity from law suits to nonprofits that are sued by one of their beneficiaries. Yesterday's Jersey Journal reports that this is now about to change. The New Jersey Assembly has passed, and sent to the governor for his signature, S.540 . The bill removes immunity in claims against charities, including churches and religious nonprofits, for negligent hiring, supervision or retention of any employee where that results in a sexual offense being committed against a minor who was being served by the charity. [Thanks to Steven H. Sholk for the lead.]

Belarus Authorities Seek Political Support By Exempting Churches From Tax

Forum18 reports today that in Belarus, as the 2006 presidential elections approach, authorities are seeking support of religious organizations by exempting their property from tax. A December 1 decree signed by President Aleksandr Lukashenko exempts land occupied by houses of worship, "including diocesan offices, monastic complexes and theological schools." 3,025 named groups benefit from the exemption. However, many - predominantly Protestant - organizations still cannot obtain houses of worship, and some continue to be fined or warned for worshipping in private homes. A new amendment to the Criminal Code allows a 2 year prison sentence for participating in unregistered or liquidated religious organizations.

New York Health Department Warns of Danger In Disputed Circumcision Procedure

The Dec. 16, issue of the Jewish Week reports that New York City's Health Commissioner has issued an unprecedented public warning about a controversial circumcision procedure after a breakdown in an agreement the Department had with a Jewish religious court in Brooklyn. (See prior posting.) Health Commissioner Dr. Thomas Frieden wrote "An Open Letter to the Jewish Community", saying: "there exists no reasonable doubt that metzitzah b'peh can and has caused neonatal herpes infection." Herpes can be fatal in newborns. The letter says that "the Health Department recommends that infants being circumcised not undergo metzitzah b'peh." The Health Department has also developed a Fact Sheet for parents, available in English online, and soon to become available in Yiddish and Hebrew. While the Health Department considered regulating the controversialal procedure, or requiring informed consent be obtained by Mohels using it, ultimately it opted for an educational effort.

Rabbi Moshe Tendler, a dean at Yeshiva University’s rabbinic school who is an expert in Jewish medical ethics with a doctorate in microbiology, has long opposed metzitzah b'peh as medically dangerous and unnecessary under Jewish law. However Rabbi Levi Heber, a mohel from the Lubavitch community where the procedure is often used, objected to the Health Department's initiative. "The concept of non-Jewish authorities trying to influence certain behaviors should not be accepted by anyone," he said. "You never know where it could lead."

Churches Attacked In New South Wales

Beginning last Sunday, as reported by the Guardian, violence broke out around Sydney, Australia between groups of white youths and members of the Muslim community. Today, The Australian reports that the riots have moved from race to religion. A community hall attached to a church was burned to the ground, carol-singers were spat on, and church buildings were hit with gunfire. In response, members of the Arab Christian and Arab Muslim communities have called for a week-end curfew for all Lebanese youths. Some have suggested that the violence against churches was an attempt to "shame" the city's Lebanese Christian community into supporting Lebanese Muslims in the racial conflict that began as a battle over use of suburban beaches. ABC news reports that in response to all of this, the New South Wales Parliament has been called into special session to enact laws giving police broad powers to deal with the situation.

Religious Activists Protesting Social Service Cuts Arrested At Capitol

Today at the Cannon House Office Building, U.S. Capitol Police arrested 115 liberal religious activists who were part of a peaceful sit-in protesting a Republican budget bill that would cut $42 billion over five years from a range of federal programs, including health care for the poor and elderly and possibly child care, student loans and food stamps. Reuters today reported on the developments and indicated that also local prayer vigils were being planned for today in 32 states by "Call to Renewal," a network of churches and other religious organizations. UPDATE: An article syndicated by the Chicago Tribune reports on remarks at the rally by Christian activist, Rev. Jim Wallis.

Meanwhile, this morning the Washington Post ran an article asking: "Why in recent years have conservative Christians asserted their influence on efforts to relieve Third World debt, AIDS in Africa, strife in Sudan and international sex trafficking -- but remained on the sidelines while liberal Christians protest domestic spending cuts?" Conservative religious leaders answer that by arguing that it is a matter of priorities, saying their primary attention is focused on issues of abortion, same-sex marriage and seating judges who will back their position against those practices. Others, such as Tony Perkins, president of the conservative Family Research Council, focus on the responsibility of the private sector: "There is a [biblical] mandate to take care of the poor. There is no dispute of that fact," he said. "But it does not say government should do it. That's a shifting of responsibility."

9th Circuit Rejects Religious Objections To Returning Hawaiian Artifacts

On Monday, in Na Lei Alii Kawananakoa v. Hui Malama I Na Kupuna O Hawai'i Nei, the U.S. Ninth Circuit Court of Appeals upheld an earlier district court ruling involving a dispute between competing native Hawaiian groups over valuable burial artifacts. (See prior posting.) Both the Honolulu Star Bulletin and the Honolulu Advertiser report on the case which involves alleged violations of the Native American Graves Protection and Repatriation Act. In a brief opinion, the appeals court upheld the lower court's preliminary injunction ordering Hui Malama, a Native Hawaiian group, to return 83 valuable burial objects to the Bishop Museum so 13 other claimants can help decide their final resting place.

The disputed objects were reburied in their original resting place at Kawaihae (Forbes) cave five years ago after they were loaned by the Museum to Hui Malama. Hui Malama now argues that reopening the cave would be a desecration that violates their religious beliefs. They also argue that the cave would collapse if opened. A settlement, however, may be in sight. Alan Murakami, an attorney with the Native Hawaiian Legal Corp. which is representing Hui Malama, said that Hui Malama is "on the verge" of getting a majority of the original 13 claimants to the artifacts to agree that leaving the items in the cave is the preferred course of action.

UPDATE: The Dec. 16 Honolulu Advertiser reports that Hui Malama has told the court that it will disclose the location of the artifacts in question, but it would like that disclosure sealed from the public.

Court Refuses To Adjudicate Church Governance Dispute

In Alexander v. Allen, (Dec. 13, 2005), a Texas Court of Appeals refused on First Amendment grounds to step into a dispute between the pastor and the board of the Christ Temple Apostolic Church. The church's pastor, David Allen, Sr., attempted to unilaterally replace board members, change the lock on the church doors and change authorized signers on the church's bank account. He relied in part on a provision in the church's bylaws provided that a member who fails to show a cooperative attitude toward the pastor and the church program shall not be eligible to hold any church office. The court held that the dispute was an ecclesiastical one, and therefore beyond the court's jurisdiction.

Unusual First Amendment Challenge To Smoking Ban Fails

A rather innovative free exercise challenge to Austin, Texas' ban on smoking in public places was rejected by a federal district court several weeks ago. In Roark & Hardee v. City of Austin, (Oct. 18, 2005), plaintiffs launched a partially-successful broad-based attack on Austin's smoking ordinance. One of plaintiff's constitutional claims was that the ordinance infringed the free exercise of religion because it banned the burning of incense. However, the court was unconvinced since the City expressly disavowed that the ordinance covers the burning of incense or candles and stated that it would not enforce the ordinance to ban these activities.

Administrative Segregation Does Not Violate Prisoner's Religious Rights

In Grimes v. Cunningham, 2005 U.S. Dist. LEXIS 32099 (D. Del., Dec. 8, 2005), a Delaware federal district court rejected a prisoner's First Amendment challenge to his administrative segregation for security reasons. Russell Grimes, a pre-trial detainee, had argued that the detention prevented him from attending communal worship services.

Wisconsin Legislature Holds Hearing On College Dorm Bible Studies

The Colleges and Universities Committee of the Wisconsin Assembly held an informational hearing on Tuesday on the policy of the University of Wisconsin Eau-Claire that prevented a dormitory resident assistant from leading Bible study groups in his dorm. (See prior posting.) The Janesville, Wisconsin Gazette reported that the committee heard testimony from the student RA, Lance Steiger. Republican Rep. Stephen Nass supported Steiger, saying that resident assistants are free to lead groups supporting diversity, political viewpoints or gay and lesbian students. "Yet when you want to hold your hands in prayer you are told you cannot." The Freedom From Religion Foundation said the hearing was merely political grandstanding. It criticized the University for "capitulating to the demands of the religious right."

Challenge To Pennsylvania Home Schooling Regulation Rejected

In Combs v. Homer Center School District, 2005 U.S. Dist. LEXIS 32007 (WD Pa., Dec. 8, 2005), a Pennsylvania federal district court, in a lengthy opinion, rejected free exercise of religion challenges by a number of parents to Pennsylvania’s regulation of home schooling. Plaintiffs alleged that "God has given parents jurisdiction and authority over the education of their children," and that it would be "sinful for them to engage in conduct or expression that would grant control over their children's education to the civil government . . . [or require them to] seek approval from the secular civil government”. The parents particularly objected to the requirement that they submit an educational log and a portfolio containing samples of their children's work to public school officials for review. The court held, however, that, Plaintiffs did not allege any actual, tangible ways in which the state’s requirements impair or restrict the exercise, practice, conduct or expression of their religion. It therefore rejected claims that the Pennsylvania statute violated the First Amendment or the Pennsylvania Religious Freedom Protection Act.

Cardinal Schonborn Lecture Attempts To Clarify His Stand On Intelligent Design

Zenit yesterday published an English translation of a lecture by Catholic Cardinal Christoph Schönborn on creation, evolution, and his views on Intelligent Design. The lecture was delivered in October in Vienna and was intended to clarify misunderstandings that arose from his widely-discussed op-ed piece that appeared in the New York Times last July. (See prior posting.) He said in part:

I see no difficulty in joining belief in the Creator with the theory of evolution, but under the prerequisite that the borders of scientific theory are maintained.... When science adheres to its own method, it cannot come into conflict with faith. But perhaps one finds it difficult to stay within one's territory, for we are, after all, not simply scientists but also human beings, with feelings, who struggle with faith, human beings, who seek the meaning of life. And thus as natural scientists we are constantly and inevitably bringing in questions reflecting worldviews.

In 1985, a symposium took place in Rome under the title "Christian Faith and the Theory of Evolution." ... [A]t its conclusion, Pope John Paul II received us in an audience. There he said: "Rightly comprehended, faith in creation or a correctly understood teaching of evolution does not create obstacles: Evolution in fact presupposes creation; creation situates itself in the light of evolution as an event which extends itself through time -- as a continual creation -- in which God becomes visible to the eyes of the believer as 'creator of heaven and earth.'"

But Pope John Paul then added the thought that for the creation faith and the theory of evolution to be correctly understood, the mediation of reason is necessary, along with, he insisted, philosophy and reflection.... For me the question that has emerged from this debate is not primarily one of faith vs. knowledge but rather one of reason. The acceptance of purposefulness, of "design" [English in the original], is entirely based on reason, even if the method of the modern natural sciences may require the bracketing of the question of design. Yet my common sense cannot be shut out by the scientific method. Reason tells me that plan and order, meaning and goal exist, that a timepiece does not come into being by accident, even less so the living organism that is a plant, an animal, or, above all, man.

California Court Supports Break-Away Episcopal Churches

The Long Beach Press Telegram reports that in Orange County, California, a state trial court yesterday dismissed a suit by the Episcopal Diocese of Los Angeles against two dissident churches, All Saints' and St. David's of North Hollywood. The decision allowed the parishes, which had split from the Episcopal Church in 2004 because of disagreements over the consecration of an openly gay bishop and the blessing of same-sex unions, to retain possession of their property. (See prior related posting.) The Los Angeles diocese had invoked canon law to claim that the churches' property and hymnals belonged to the larger Diocese. The court rejected that claim, however, finding that deeds gave title to church buildings to individual churches, and that the church’s articles of incorporation did not create a trust in favor of the parent religious body. The parishes were had defended the case by filing anti-SLAPP motions, which claimed the lawsuit arose from their exercise of freedom of speech and religion. That allowed the case to be dismissed immediately if the plaintiff was unable to show it was likely to prevail in a trial. (See prior posting.)

Moscow Mayor Urged To Ban Building of Hindu Temple

According to a report today from Clickwalla, the Archbishop of the Russian Orthodox Church has asked Yuri Luzhkov, the mayor of Moscow, to ban construction of a proposed Hindu temple in Moscow. Otherwise, according to Archbishop Nikon, the temple would become "an idolatrous disgrace erected for the glory of wicked and malicious 'god' Krishna". Mayor Luzhkov signed a decree allocating land in northwest Moscow for the Temple almost two years ago. But in October, after mass protests prompted by the Russian Orthodox Church, the mayor repealed the decree and ordered removal of a temporary Hindu shrine that had already been built on the land. Last week, a "Defend Russian Hindus" campaign was begun in London. Speaking for that campaign, Kishore Ruparelia said: "We cannot believe that in this age of respect and multi-cultural co-existence, a leader of the Russian Church chooses to make statements that are intolerant and disrespectful to one billion Hindus in the world."

Welcome to "Blog from the Capital"

Religion Clause welcomes to the blogosphere a new entrant, Blog From the Capital . Sponsored by the Baptist Joint Committee for Religious Liberty, it will focus on the debate over church-state separation and religious liberty. Daily posts will cover legislation, judicial review, news, and commentary. [Thanks to Mainstream Baptist for the information.]

The blog is newly listed to the left on this page in the Religion Clause sidebar. If you have not looked at my sidebar listings, please do so. Almost 100 links are provided to resources, academic centers, government offices, advocacy organizations, journals, forums and blogs that focus primarily on issues relating to church-state or religious freedom.

Religious Lobbying Impacts ICANN Delay of xxx Domain

According to a report in the Dec. 7 issue of BNA Electronic Commerce and Law Reporter [subscription required], after initial approval, the board of the Internet Corporation for Assigned Names and Numbers (ICANN) has postponed consideration of a proposal to create a new top level domain(TLD) for adult entertainment sites. (ICANN Report). Stuart Lawley, Chairman of the Internet Foundation for Online Responsibility which proposed sponsoring the new TLD blamed the delay on intervention by the U.S. Department of Commerce and the influence of religious groups. In a December 1 press release, Concerned Women for America praised ICANN's action and said that its Chief Counsel had met with top Commerce Department officials to urge that the new TLD be blocked. CWA's Mission, as described on its website "is to protect and promote Biblical values among all citizens - first through prayer, then education, and finally by influencing our society - thereby reversing the decline in moral values in our nation."

In August, it had been reported that the Commerce Department had received over 6000 letters and e-mails from individuals expressing concern about the new TLD, and that those concerns had, in turn, been communicated in a letter from the Commerce Department to ICANN. Conservative groups like the Family Research Council were apparently behind the flood of protests sent to the Commerce Department.

A RLUIPA Conundrum

Every once in a while, we need to step back and smile at the impact of our legal rules. A posting by Nate Oman last week at the blog Concurring Opnions gives us a chance to do this. He suggests this for the individual who wants to use sacramental peyote: get arrested-- maybe for using peyote. RLUIPA may well give free exercise rights to the inmate that he doesn't have outside. The full posting is worth a read. [Thanks to SCOTUSblog for the lead.]

Intelligent Design Back On Center Stage

The controversy over teaching Intelligent Design in public schools will apparently assume center stage again this week. The Atlanta Journal Constitution reports that this week arguments will be heard in the U.S. 11th Circuit Court of Appeals in the case of Selman v. Cobb County School District. In 2001, the Cobb County, Georgia school board ordered stickers placed on their new biology textbooks that contained 101 pages on evolutionary theory. The stickers read: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered." A lower court ordered the stickers removed. (Full text of opinion).

Meanwhile, today's Washington Post profiles Cobb County, Georgia, pointing out that "the fast-growing suburb of about 650,000 people northwest of Atlanta ... has long shown a remarkable flair for high-profile social controversy." And the South Florida Sun Sentinel reports that support for Intelligent Design has made its way into the Orthodox Jewish community, as a conference this week at Florida International University on Torah & Science features Christian ID proponent William A. Dembski as one of its speakers.

Settlement Near In Tenafly Eruv Case

In 2002, the U.S. Third Circuit Court of Appeals granted a preliminary injunction to Orthodox Jewish residents of Tenafly, New York, to prevent the city from enforcing a city ordinance that would have prohibited plaintiffs from creating an eruv by attaching plastic strips to utility poles. The court found it likely that the plaintiffs' free exercise rights were being infringed by the Tenafly's apparently discriminatory enforcement of the ordinance. Sunday's North Jersey Record reports that a settlement of the dispute may finally be at hand. A public hearing on the proposed settlement will be held January 10. Then on January 24 borough officials will vote on the settlement which would allow expansion of the existing eruv, but only if done using plastic lechis (inconspicuous black strips on telephone poles). Tenafly would also pay $325,000 in attorney fees to the Tenafly Eruv Association and would not be allowed to pursue any related legal action against Verizon or Cablevision, which originally gave permission for the eruv to be constructed using their poles.

Sikh Battles Over Drivers License Photo In France

The Sikh News Sentinel yesterday and Tuesday covered the ongoing legal battle in France over whether Sikh men can wear their turbans in their drivers' license identity photos. Originally authorities cited a 1999 Interior Ministry order and required Shingara Mann Singh to remove his turban for the photo. But then, the Council of State, France's highest administrative body, ruled that only the Transport Ministry had authority over drivers' licenses, and its 1999 decree was not precise enough to justify refusing Singh's request for a photo with his turban on. But a day later the Transport Ministry cured the imprecision in its decree and specifically said that it would now apply the Interior Ministry's edict to drivers licenses. Singh's lawyer, Patrice Spinosi, said he would take the case back to the Council of State, and if he loses there, would go on to other tribunals, even the European Court of Human Rights.

City Asks Judge To Limit Religious Remarks By Lawyer

The city of Oxford, Mississippi is seeking an unusual order from a federal judge in an upcoming racial discrimination trial, according to today's Jackson, Mississippi, Clarion-Ledger. Oxford is being sued by a former employee of its water department who alleges that he was fired because a supervisor disapproved of his dating a white woman. The city wants an order against plaintiff's attorney prohibiting him from suggesting to the jury that their decision in the case should be made on the basis of religious belief. In the past, Tupelo attorney Jim Waide has, for example, told jurors to "do what Jesus would do". The city wants the court to order that Waide not be allowed to talk about religion, biblical authority and/or a deity in his opening or closing statements.

Drawing Lines On Christmas Music In Public Schools

Holiday music is a particularly difficult subject in public schools in December. On Oct. 11, the Greece Central School District near Rochester, New York adopted a resolution providing that in order to recognize the nation's rich cultural heritage, the Board approves "all holiday music to be studied, performed, and presented within the district without differentiation due to title." Apparently this language was intended to adopt the policy set out in a memo to the Board from Louise Trucks, the district's arts director. Today's Rochester Democrat and Chronicle describes the memo: It says that sacred music at school assemblies should be included for educational purposes, and that educational information about the music can be given in program notes or verbally. It continues: "Some selections, those in which the text particularly implies or encourages worship, would not be appropriate in school settings." The memo gives "O Come, All Ye Faithful," as an example. However, according to the memo, "Silent Night," because it is "descriptive in nature and does not request a particular religious behavior," would be acceptable if accompanied by educational text.

New Scholarly Articles of Note

From SmartCILP:
Symposium on Conscience and the Free Exercise of Religion. Articles by Steven D. Smith, James W. Nickel, Kent Greenawalt, Kevin J. Worthen, Gregory C. Sisk and Martin H. Belsky. 76 Univ. Colorado Law Review 911-1080 (2005).

New on BePress:
David A. Skeel Jr., University of Pennsylvania Law School & William J. Stuntz, Harvard Law School, Christianity and the (Modest) Rule of Law .

Faisal M. Kutty, Osgoode Hall Law School, The Shari'a Factor in International Commercial Arbitration .

Medicaid Eligibility Claim Raises Possible Church-State Issues

In a recent case, In re The Fair Hearing of Hoffer, (Dec. 6, 2005), the Montana Supreme Court was faced with the question of whether seven residents of King Colony Ranch, a Hutterite Colony, met the test for limited resources in order to be eligible for the Family-Related Medicaid Program. The majority found that the Colony’s assets are held in trust for the benefit of its members, and remanded the case for determination of eligibility in light of this conclusion. The dissent, however, argued that any duty that the Colony has to support the Claimants is a religious, not a legal, one. The dissent argued that to conclude otherwise would require the court to make a religious inquiry in violation of the Establishment Clause and Free Exercise Clause of the U.S. Constitution and of Article II, Section 5 of the Montana Constitution. A story on the case was carried by Wednesday's Billings Gazette.

White House Religious Accommodations At Hanukkah Party

Following up yesterday's posting on this year's White House Hanukkah party, the blogosphere offers some other interesting glimpses into the details of the religious accommodation that went into planning of the event. Scott Johnson, who attended the party, describes the festivities on Power Line, including this: "Guests were escorted to President and Mrs. Bush by Marines in dress uniforms, and each couple was in turn announced by the Marine to the president. The Marine asked questions to determine if we observed Jewish law regarding touching between the sexes and instructed us where to stand..." And Life-Of-Rubin carries a photo of Mrs. Bush with the supervising rabbis and kitchen staff during the koshering of the White House kitchen.

Juror's Use of Biblical Verses Does Not Invalidate Death Sentence

In Fields v. Brown, (Dec. 8, 2005), the U.S. Ninth Circuit Court of Appeals reversed the trial court and reinstated the death sentence for Stevie Lamar Fields who has been on death row since 1979. UPI yesterday reported on the part of the decision involving church-state issues. A lower court had ruled that a foreman's use, and sharing with other jurors, of notes on Biblical passages was not permissible during jury deliberations in the penalty phase of Field's trial. The Ninth Circuit reversed, holding that at least some of the Biblical verses were not extrinsic factual material, but instead were common knowledge. As to others, the court said that it was not shown that they had a substantial and injurious effect on the verdict.