Bush Allies Differ With Him On Intelligent Design

While President Bush earlier this week said he favored teaching the theory of Intelligent Design along with evolution (see prior posting), some of his political allies are distancing themselves from that position.

On Wednesday, the New York Times reported: "At the White House, where intelligent design has been discussed in a weekly Bible study group, Mr. Bush's science adviser, John H. Marburger 3rd, sought to play down the president's remarks.... [He] said in a telephone interview that "evolution is the cornerstone of modern biology" and "intelligent design is not a scientific concept." Mr. Marburger also said that Mr. Bush's remarks should be interpreted to mean that the president believes that intelligent design should be discussed as part of the "social context" in science classes." (See Jeremy Leaming's discussion of this on The Wall of Separation blog.)

Then on Thursday, Reuters reported that Pennsylvania Republican Senator Rick Santorum also largely rejected President Bush's position. Santorum is quoted as saying: "As far as intelligent design is concerned, I really don't believe it has risen to the level of a scientific theory at this point that we would want to teach it alongside of evolution." But he added: "What we should be teaching are the problems and holes -- and I think there are legitimate problems and holes -- in the theory of evolution. What we need to do is to present those fairly, from a scientific point of view."

MI County Outlaws False Halal and Kosher Labeling

According to a report in today's Detroit Free Press, Wayne County, Michigan commissioners have voted to make it a misdemeanor for restaurant owners, butchers and other food sellers to falsely claim their meat conforms to Islamic or Jewish religious laws. The vote follows several complaints that sellers had falsely claimed their meat was certified as halal, or conforming to Islamic regulations. Violators could face a fine of $500 and up to 90 days in jail. Statewide statute in Michigan already prohibit this kind of false representation, but the new law will permit county health inspectors to enforce the prohibitions.

In 2002, in Commack Self Serv v. Weiss, the US Second Circuit Court of Appeals struck down on Establishment Clause grounds a New York statute that prohibited the sale of any food product represented to be "kosher" that has not been prepared "in accordance with the orthodox Hebrew religious requirements .

Some School Prayer Claims Dismissed On Procedural Grounds

In Dobrich v. Walls, (D.Del., Aug. 2, 2005), a Delaware federal district court dismissed on procedural grounds a number of claims challenging an extensive pattern of school sponsored prayer at functions, events and School Board meetings in the Indian River School District. However some of the plaintiffs' claims were permitted to go forward. Some, but not all of the claims were dismissed on standing grounds. Defendants' statute of limitations defense was rejected. Claims against school board members in their individual capacities were dismissed on a finding that they had immunity from liability because their actions were legislative in nature.

EU Objects To Turkey's Draft Law On Property of Minority Religions

Reuters reported yesterday that the European Commission has complained to Turkey that the country's pending legislation dealing with property rights of non-Muslim religious communities does not yet satisfy EU standards for religious freedom. The head of Turkey's Orthodox Church in Istanbul has long complained about bureaucratic regulations that prevent it from freely using property it owns. Turkey plans to address the EU concerns once its Parliament meets again in October.

Malaysia Charged With Persecuting Sky Kingdom Sect

Human Rights Watch yesterday strongly criticized Malaysian authorities for their prosecution of the Sky Kingdom religious sect. Sky Kingdom was founded by Ayah Pin, who claims to be the reincarnation of the holy figures of Buddhism, Christianity, Hinduism and Islam. The community was one of 22 declared as “deviant sects of Islam” by the Malaysian government last month. Officials from the land office, state religious affairs department, and the police have demolished its religious structures—including a giant teapot. 58 members of the sect who have been arrested will appear today before a Shariah court on charges of practicing a “deviant religion”. They do not have legal defense counsel and have not had the opportunity to prepare a defense.

US Muslim Academics Criticize Anti-Terror Fatwa

Last week, a group of American Muslim scholars issued a fatwa condemning terrorism. (See prior posting.) Now, according to an Associated Press report yesterday, the fatwa is being sharply criticized by some American Muslim academics. They argue that the legal ruling was largely aimed at improving the public image of Islam and not at starting an honest discussion about Islamic teaching. These critics say that the fatwa was so broad it was meaningless, and that it should have denounced specific terrorist groups including al-Qaida. Also Emory University Professor Abdullahi An-Na'im, who specializes in Islamic law and human rights, said the American fatwa was misleading in taking the position that it applies equally when an Islamic country, like Iraq, is under occupation by a non-Muslim country.

Roberts Religion Clause Briefs Analyzed

Prof. Joseph M. Knippenberg at the Ashbrook Center has now analyzed all of the religion clause briefs that Supreme Court nominee John G. Roberts participated in writing prior to his becoming a Circuit Court Judge. In his lengthy posting, John Roberts on Church and State: A Speculative Reconstruction, Knippenberg reviews the arguments set out in a number of the briefs and concludes:

"A careful review of the publicly available evidence suggests that John Roberts has put his name to positions solidly within the mainstream of judicial interpretation of the First Amendment religion clauses. As seems to be the case in many other areas of law, he would be careful to stay within the proper bounds of judicial competence and be respectful of the role and judgments of the political branches. Above all, he would apparently continue and perhaps extend somewhat the Court's tendency to look favorably on attempts to accommodate religious expression, not necessarily as a matter of judicially-enforced constitutional right, but rather as a matter of what might be called legislative grace. This deference and "judicial restraint" would require a rethinking of the Court's Establishment Clause jurisprudence, continuing the move away from a mechanical application of the Lemon test and perhaps an abandonment of Sandra Day O'Connor's "endorsement" test, in favor of a return to a focus on the traditional elements of establishment ("force and funds")."

NY Mayoral Hopefuls Court Religious Communities

New York's Jewish Week today carries a long article on the candidates in New York City's upcoming Sept. 13 mayoral primary. With 4 Democrats and 2 Republicans in the races, the article reports on how candidates are appealing to the interests of New York's religious communities. Two of the Democrats are supporting faith-based initiatives, despite broader opposition to them in the Democratic Party. Democrat Anthony Weiner proposes to appoint a "nonprofit czar" to find housing for large, religious families, work to keep Catholic schools open and devote more police to protecting yeshivas. Council Speaker Gifford Miller, also a Democratic candidate, surrounded himself with Jewish social-service leaders at a kosher food pantry to highlight the nearly $12 million allocated by City Council for the Metropolitan Council on Jewish Poverty. Not to be outdone, incumbent mayor and Republican candidate Michael Bloomberg's campaign spokesman said that no one trumps the mayor in helping the faithful help the needy.

GA Prison System Changes Religious Headgear Policy

Under pressure of a lawsuit by the Becket Fund for Religious Liberty, the Georgia prison system has changed its regulations prohibiting the wearing of religious headgear. The Atlanta Journal-Constitution reports today that new Georgia Department of Corrections policy will allow inmates to wear religious headgear if it is made of single-ply material, is white and is no larger than a standard cap. That policy allows Jewish prisoner Ralph Benning to wear his yarmulke. The Becket Fund's press release indicated that it is still negotiating to get Benning access to kosher meals.

New Compromises on Religion In Draft Iraqi Constitution

The New York Times reports today that the drafters of Iraq's new Constitution have made new compromises in the document's treatment of the role of Islam in the nation. The new draft provides that Islam will be "a main source of legislation" instead of "the major source". Islam will be the official religion and the government will protect Iraq's holy shrines and religious heritage. However no political authority will be granted to Islamic religious leaders.

Prisoner Required To Show Religious Beliefs Are Sincere

In Hawkins v. Mills, 2005 U.S. Dist. LEXIS 15594 (WD Va., Aug. 1, 2005), a Magistrate Judge recommended dismissing a claim by a Virginia prisoner that his religious rights were infringed by denying him access to the prison's Common Fare diet. The judge upheld as reasonable the state's insistence that the prisoner show that his beliefs were sincere by adhering to the key tenets of his faith for at least nine months. Hawkins originally claimed to be a Siddha Yogi practitioner, but when informed that the Common Fare diet was not a requirement of that faith, the inmate claimed he was a member of the Nation of Islam. The Court also found that the doctrine of qualified immunity protected defendant from plaintiff's claim for monetary damages.

Kazakhstan's Religious Registration Law Has Sloppy Drafting

Forum 18 today discusses at length Kazakhstan's recently enacted law requiring the registration of religious organizations with the government. Legal experts examining the law in detail have found contradictory provisions relating to procedures for registration.

Commandments and Aphorism For Utah Park Spawn Litigation

On Monday, the U.S. Tenth Circuit Court of Appeals reversed and sent back to the district court for further development of the facts a suit involving the placement of a Ten Commandments monument in a park in Pleasant Grove, Utah. In Society of Separationists v. Pleasant Grove City, the Court said that the U.S. Supreme Court's recent Ten Commandments rulings now require the development of a myriad facts to determine whether plaintiffs can proceed.

Meanwhile, today the Salt Lake Tribune reports that followers of the Summum faith, founded in 1975 and based on Egyptian customs, have filed suit in federal district court in Utah to get its "Seven Aphorisms" posted in the Pleasant Grove park along with the Ten Commandments monument. They believe that these were handed down to Moses on a second trip down from Mt. Sinai as a "higher law" for the select few who could understand them.

AF Academy General's Promotion Delayed By Senate

The Associated Press reported yesterday that in considering a list of 21 Air Force Generals nominated to receive a second star, the U.S. Senate dropped the name of Brig. Gen. Johnny Weida, the second in command at the U.S. Air Force Academy. Weida, a born-again Christian, has been criticized for speeches and memos that proselytized Academy cadets. A Senate Armed Services Committee spokesman said Weida is still under investigation and the committee generally does not act on nominees in that situation. The Air Force inspector general's office cleared Weida in June of six allegations, finding he did nothing wrong. These included his June 2003 guidance to cadets telling them they are "accountable first to your God", and his urging cadets and staff to pray. One additional charge remains under review.

DeLay To Appear On "Justice Sunday II"

The New York Times yesterday reported that House of Representatives Republican Majority Leader Tom Delay has agreed to appear in an August 14 telecast sponsored by prominent Christian conservatives. Titled "Justice Sunday II", the program will call attention to what its organizers say is the Supreme Court's hostility to Christianity and traditional families. It will be broadcast to churches and Christian television stations and distributed as a video. This is part of a broader campaign to mobilize church members to support the nomination of Judge John Roberts for the U.S. Supreme Court and to focus on battles over the courts. In a televised prayer on Tuesday for Judge Roberts's confirmation, televangelist Pat Robertson asked his viewers to pray: "Take control, Lord! We ask for additional vacancies on the court." Democrats suggest that DeLay's appearance will hurt the Roberts nomination in the Senate.

Prisoner's Claim On Forced Cutting of Beard Continues

In two recently issued opinions, an Ohio federal district court denied a preliminary injunction, but permitted a claim for other relief to proceed, in the case of a prison inmate who claims that his free exercise of religion rights were violated when he was forced, in violation of his beliefs as a convert to Judaism, to cut his beard to comply with prison grooming policies. He had previously grown his beard for almost four years without disciplinary action. The cases are Smith v. Wilkinson, 2005 U.S. Dist. LEXIS 15564 (SD Ohio, July 27, 2005), and Smith v. Wilkinson, 2005 U.S. Dist. LEXIS 15567 (SD Ohio, July 29, 2005).

In Israel's Knesset: Discussion of Civil Marriage and of El Al

The Israeli papers are carrying reports of two interesting developments in the Knesset (Israel's Parliament). Haaretz today reports that Sephardi Chief Rabbi Shlomo Amar told the Knesset's Committee for the Advancement of Women and the State Control Committee that he is willing to support civil marriage in Israel for non-Jews and people who have no religion. Currently marriage is controlled by each religious community. The proposal is designed to solve the problem of 300,000 non-Jewish immigrants in Israel who have no religious affiliation. It would not apply to marriages between Jews and non-Jews.

In an unrelated matter, the Jerusalem Post reported yesterday that the Knesset's religious lobby has requested an urgent meeting with officials of El Al, Israel's national airline to protest two recent instances in which El Al flights took off on the Sabbath. The incidents have caused a storm of protest in the haredi (ultra-Orthodox) community. El Al has apologized.

Conference on Religious Freedom In Central Asia

Last week the United States Commission on International Religious Freedom (USCIRF) and the Center for Strategic and International Studies (CSIS) held a briefing on "U.S. Strategic Dilemmas in Uzbekistan and Turkmenistan." Relief Web yesterday reported on the conference which focused on how the United States can support democracy and human rights, including religious freedom, in Central Asia without compromising its strategic military interests. The full text of all the presentations at the conference are available online.

President Supports Teaching of Intelligent Design In Schools

In a rather startling interview yesterday with reporters from a group of Texas newspapers, President George W. Bush supported the teaching of "intelligent design" along with evolution in the public schools. The Associated Press reports that Bush, while declining to talk about his personal views on the origins of life, said that students should learn both theories. He said: “I think that part of education is to expose people to different schools of thought. You’re asking me whether or not people ought to be exposed to different ideas, the answer is yes.”

Ohio Restoration Project Seeks To Recruit Evangelical Voters

In a long story today, the Cleveland Jewish News reports on the fundamentalist Christian Ohio Restoration Project. ORP plans to recruit 2000 "Patriot Pastors" to get out the evangelical vote in Ohio's May 2006 primary. ORP leader Rev. Russell Johnson says of the upcoming primary: "This is a battle between the forces of righteousness and the hordes of hell." The paper reports that there will be Patriot Pastor policy briefings in eight Ohio cities. ORP seeks to have pastors host voter-registration drives in their churches, and distribute voter guides from the Christian Coalition and the Center for Moral Clarity to "clarify the positions of various candidates, who at times, would like to remain vague and noncommittal." As reported in a previous posting, the ORP's planned Ohio for Jesus rally will be promoted through radio ads featuring Ohio Secretary of State Kenneth Blackwell, a Republican candidate for governor supported by ORP.

Zoners' Motion To Dismiss RLUIPA Claim By Jewish School Loses

Last week, the federal district court for the Southern District of New York handed down another opinion in the long-running battle between the Orthodox Jewish Westchester Day School and Mamorenek, New York zoning authorities. The school had been denied a special permit that would allow it to construct a new school building and renovate existing buildings on its campus. In Westchester Day School v. Village of Mamorenek, 2005 U.S. Dist. LEXIS 15380 (SDNY, July 27, 2005), the court refused to dismiss the school's RLUIPA claim challenging the denial. It found that material issues of fact remained that needed to be determined at trial on whether there had been a complete denial of the school's permit application and, even if the denial was not a complete one, whether it nonetheless constituted a substantial burden on WDS's religious exercise. The court, however, upheld the dismissal of the school's religious discrimination claim under 42 USC Sec. 1983 on the ground that the complaint did not allege religious discrimination in the denial.

Churches Again Challenge MN Concealed-Carry Law

Two churches have again filed suit challenging Minnesota's new law permitting the carrying of concealed weapons, according to a story in today's Twin Cities Pioneer Press. The law prevents churches from banning firearms in their parking lots and allows them to ban firearms inside the church only if they post detailed signs or verbally tell each person of the ban at the door. The churches contend that "religious institutions should have the right to control their own property and to be able to worship without firearms." This is the second round of litigation. An earlier 2003 statute was successfully challenged by churches on the ground that the Minnesota Constitution requires laws only deal with a single subject and the concealed carry law was part of a law that also dealt with ice-fishing houses. (See earlier posting.) In 2005, the legislature re-enacted the concealed carry permit law alone, with minor changes in the kind of notification that was required to prohibit guns inside (see Duluth News Tribune story.)

Wiccan's Claim Under Victoria Religious Tolerance Act Rejected As Frivolous

Yesterday the Civil and Administrative Tribunal of the Australian state of Victoria decided Fletcher v. Salvation Army and CMC Australasia, strongly rejecting as frivolous a claim under Victoria's controversial Racial and Religious Tolerance Act. (See prior posting.) Prisoner Robin Fletcher, a Wiccan, claimed that a course offered by the Salvation Army caused hatred of Wiccans, occultists and pagans.

In a strongly worded opinion, Judge Stuart Morris said: "In recent months there has been community concern that Victoria's Racial and Religious Tolerance Act 2001 impairs legitimate free speech about racial and religious matters. This is not the case. The Act is reserved for extreme circumstances: such as where a person engages in conduct that inflames others to hate a person or persons because they adhere to an idea or practice or are of a particular race. The present proceedings, in which a person who says he practises a religion that involves nature worship and witchcraft has made a claim that certain Christian teaching amounts to religious vilification, come nowhere near the mark. In short, the claim is preposterous."

Today's Victoria Herald Sun reports on reactions to the decision.

Study Criticizes Public School Bible Curriculum

The New York Times today reports on criticism of The Bible in History and Literature, the curriculum that the National Council on Bible Curriculum in Public Schools has successfully gotten adopted in public schools around the country. (See prior posting.) A study released today (full text) by the Texas Freedom Network, concludes (Executive Summary): "The problems detailed by this report-- a blatant sectarian bias, distortions of history and science, numerous factual errors, poor sourcing-- reveal a curriculum that is clearly inappropriate for the 1,000 public schools the NCBCPS claims use its materials. Indeed, such schools would do far better by considering other Bible literacy curricula for what could be an enriching part of their students' learning experience." Among other things, TFN's Report says the curriculum promotes creationism and claims there are findings by NASA to support two Biblical stories of the sun standing still.

Italy's New Anti-Terror Law Bans Burqa

The Australian reports on Sunday on new anti-terrorism legislation just enacted by Italy's Parliament. In addition to giving police greater powers to trace, interrogate, and detain suspects, it doubles the existing penalty for wearing in public a burqa or chador -- traditional robes worn by Muslim women to cover their faces. It similarly prohibits the wearing in public of the kind of face mask often worn by terrorists, the balaclava. The new law imposes a penalty of up to 2 years in jail and a fine of 2000 Euros for anyone convicted of covering his or her face in public.

US Objects To Proposed Conversion Law In Sri Lanka

Newspapers in Sri Lanka reported Sunday that U.S. Secretary of State Christina Rocca has complained to Sri Lanka's ambassador to the United States about possible legislation in Sri Lanka that would restrict religious conversions. The proposal would outlaw "converting persons unethically, subjecting a person to punishment for refusal to convert, accosting people with a view to converting and holding funds for such activities." The U.S. official told Ambassador Bernard Gunatilleke that religion cannot be legislated. She also reminded the ambassador that his government had previously assured the US ambassador in Sri Lanka, Jeffrey Lunstead, that this bill would not be enacted.

RLUIPA and Religious Services In Homes and Offices

An article in yesterday's Miami Herald focuses on conflicts in cities around the country when religious services are regularly held in homes and office buildings. The Religious Land Use and Institutionalized Persons Act gives houses of worship a good deal of leverage against zoning officials. Some neighbors think they are wrongly being portrayed as anti-religious when they object to the noise and parking problems involved.

Warden Claims Illegal Religious Endorsement By Ohio Corrections Dept.

In Rose v. Wilkinson, 2005 U.S. Dist. LEXIS 15235 (ND Ohio, July 27, 2005), a prison warden who was demoted sued Reginald Wilkinson, Director of the Ohio Department of Rehabilitation and Corrections, alleging that he used his position to promote Christianity in violation of the Establishment Clause. Plaintiff claims that Wilkinson led employees and inmates in Christian prayers during training and other secular state events, held mandatory employee training in Christian churches, ordered wardens to promote the Promise Keepers program, a Christian proselytizing event, in Ohio prisons, and required employees to support a religion-based offender reentry plan. As a result of these claimed violations, Plaintiff argues that he was wrongfully demoted. One of the charges in his letter of discipline was that he ordered inmates to watch the Promise Keepers broadcast.

In this decision, the court dismissed without prejudice the claims regarding the warden's discipline, demotion and fallback rights because those claims, which were also made in his Ohio Court of Claims case, are better left to that court. The federal district court retained jurisdiction over Plaintiff's claim for prospective injunctive and declaratory relief.

Foreign Aid Bill Urges Attention To Iraq's Minority Christians

On July 20, the U.S. House of Representatives passed and sent to the Senate the Foreign Relations Authorization Act, H.R. 2601 (full text). The Associated Baptist Press on Friday reported on the Sense of Congress provisions added in Sec. 1056 of the Bill that ask the Bush administration to work with the United States Agency for International Development to use funding for welfare, education and resettlement of Iraq’s Christian minority. The provision was introduced by Rep. Anna Eshoo (D-Calif.), the only Chaldo-Assyrian Christian in Congress. The bill also urges "all relevant departments and agencies ...[to] pay special attention to the welfare of ChaldoAssyrians and other indigenous Christians in Iraq in order to prevent a mass exodus that would detrimentally affect the preservation of diversity in the Middle East and the promotion of general tolerance for others."

Soledad Cross Referendum Passes With Votes To Spare

Last Tuesday was the referendum in San Diego on Proposition A to authorize City Council to donate the Soledad Cross site to the Federal government as a veterans' memorial. (See earlier posting.) The Thomas More Law Center reported that the referendum passed with over 75% of the voters favoring it, well above the 2/3 vote that a court earlier had said would probably be required. However, a number of legal battles still remain over the fate of the site.

Earp Nominated For Another EEOC Term

On Friday, President Bush nominated Naomi Churchill Earp for a 5-year term on the Equal Employment Opportunity Commission. This is a renomination of Ms. Earp whose current term on the Commission expired July 1. Among the anti-discrimination laws enforced by the EEOC are provisions prohibiting religious discrimination in employment.

Two Recent Prisoner Religious Freedom Cases-- One Succeeds On Hair Policy

Last Friday, the US Ninth Circuit Court of Appeals in Warsoldier v. Woodford upheld a claim challenging the hair grooming policy in a California minimum security prison. The suit was brought under the Religious Land Use and Institutionalized Persons Act by Billy Warsoldier and sought a preliminary injunction. A Cahuilla Native American, Warsoldier's religious faith teaches that hair embodies the knowledge a person acquires during a lifetime and it may be cut only upon the death of a close relative. The court held that the California Department of Corrections failed to demonstrate that its grooming policy is the least restrictive means necessary to ensure prison safety and security. The decision was discussed in a widely published AP story on Friday.

In Carson v. Williams, 2005 U.S. Dist. LEXIS 15106 (ND Fla., July 27, 2005), a federal magistrate judge wrote an opinion giving a prisoner detailed instructions on how to amend his vague and incomplete complaint if he wishes to adequately allege violations of his religious freedom by jail officials.

10th Circuit Rejects Establishment Clause Challenge To University Art Exhibit

Yesterday, in O'Connor v. Washburn University, the U.S. Tenth Circuit Court of Appeals rejected an Establishment Clause challenge to a statue that Washburn University included in its annual outdoor sculpture exhibit. A Catholic professor and a Catholic student sued the municipal university claiming that the sculpture, called Holier Than Thou, conveyed an anti-Catholic message. It depicted a Roman Catholic bishop with a contorted facial expression and a miter that some have interpreted as a stylized representation of a phallus.

Even though the exhibit is now over, the court permitted the plaintiffs' claim for nominal damages to proceed. Finding plaintiffs had standing to sue, the court proceeded to the merits and rejected plaintiffs' arguments. It found that the University's purpose in selecting the statute was campus beautification, not anti-Catholic bias. It also found that in the context of this kind of art exhibit, a reasonable observer would not conclude that the University was endorsing an anti-Catholic message.

Some Federal Dollars OK'd For California Mission Repair

The Monterey Herald reports today that California Sen. Dianne Feinstein has secured a $300,000 grant for the California Missions Foundation to help repair Mission San Miguel which has been closed since a 2003 earthquake. The money comes from Save America's Treasures, an Interior Department program to restore historically significant buildings. The action is subject to review by the Justice Department to ensure that it doesn't raise church-state problems. A pending lawsuit challenging Congress' earlier grants to California Missions on Establishment Clause grounds is pending, and Congress has failed to approve other funding for the 21 struggling Missions. (See earlier postings 1, 2.)

Vatican Ambivalent on Catholic Abortion Foes' Suggested Boycott of Vaccines

A report in today's Tidings News details a Vatican study on vaccines requested by a Florida pro-life group. The group's claims threaten to create tensions between state health authorities and Catholics over required vaccination for children. Children of God for Life says that the human cell lines used to cultivate the production of a number of vaccines used today come from tissue derived from two human fetuses voluntarily aborted in 1964 and 1970. In June 2003 the group asked the Vatican's Congregation for the Doctrine of the Faith for a formal statement on the church's position concerning the morality of using vaccines associated with human tissue coming from abortions.

The Vatican's study of the issue has now been released, and it does not squarely support the Florida group's contentions. While affirming the right of parents to refuse "morally objectionable" vaccines for their children, it urges substantial caution before a parent does so. Explaining the ruling, Msgr. Jacques Suaudeau, a Vatican spokesman, said: "If it is a question of protecting the whole population and avoiding death and malformation in others, that is more important" than abstaining from vaccines developed from abortions that might have occurred decades ago. The Vatican's ruling held that doctors and parents who use the vaccines for health reasons are carrying out "a form of very remote ... material cooperation," reflecting a "very mild" immoral act.

UPDATE: The full text of the letter sent by the Vatican to the Children of God for Life is now available online. Also the Children of God for Life claims that the Catholic New Service's report on the matter (the one linked above) contained misquotations, inaccuracies and omitted important information. A different report on the developments was published by Catholic World News.

CO Court Dismisses Pastor's Defamation Claim

Yesterday in Seefried v. Hummel, a Colorado Court of Appeals dismissed claims of defamation and interference with business relationships growing out of statements made at a meeting convened by a church and its board for church members to discuss whether plaintiff should be terminated as the church's pastor. The court found that this case came within the well-accepted doctrine that the First Amendment precludes a court from exercising jurisdiction over claims concerning a religious institution's activities on matters of religious doctrine or authority.

Publisher May Not Intervene In Intelligent Design Litigation

There has been another procedural development in the Pennsylvania federal district court litigation challenging the Dover Area School District's promotion of intelligent design in school classrooms. (See prior postings 1 , 2 , 3). On Wednesday, the court refused to permit the Foundation for Thought and Ethics (FTE), publisher of the leading book on Intelligent Design, to intervene in the case. FTE claimed that if the court found Intelligent Design Theory to be "religious", it would lose substantial sales of its book, Pandas and People, and of a new book it is about to publish, The Design of Life: Discovering Signs of Intelligence in Biological Systems. In Kitzmiller v. Dover Area Sch. Dist., the court held that the motion to intervene was untimely, that the publisher's interest in the case was insufficient to permit intervention, and at any rate its interests were being adequately represented in the litigation.

US Muslim Scholars Issue Anti-Terrorism Fatwa

For the first time, 18 American Muslim legal scholars have issued a formal fatwa condemning terrorism. A press release by the Muslim Public Affairs Council reports on yesterday's press conference at which the Fiqh Council of North America announced the ruling. Over 135 US Muslim organizations, mosques and leaders have endorsed the fatwa. Nihad Awad, Executive Director of the Council on American Islamic Relations said, "United, we can confront the terrorists and frustrate their goal of sparking an apocalyptic war between faiths and civilizations."

The full text of the Fatwa includes the following condemnation: "Islam strictly condemns religious extremism and the use of violence against innocent lives. There is no justification in Islam for extremism or terrorism. Targeting civilians' life and property through suicide bombings or any other method of attack is haram - prohibited in Islam - and those who commit these barbaric acts are criminals, not 'martyrs'."

It goes on to state: "In the light of the teachings of the Qur'an and Sunnah we clearly and strongly state: 1. All acts of terrorism targeting civilians are haram (forbidden) in Islam. 2. It is haram for a Muslim to cooperate with any individual or group that is involved in any act of terrorism or violence. 3. It is the civic and religious duty of Muslims to cooperate with law enforcement authorities to protect the lives of all civilians." [Interestingly, in an apparent transcription error, a purported full text posted by the Muslim Public Affairs Council omits this paragraph.]

A report by the Associated Press yesterday on the fatwa points out that unlike a similar ruling issued last week by British Muslim scholars, American scholars did not exclude suicide bombings in "occupied" countries like Iraq and Israel from the ruling's general condemnation. (See prior posting.)

US Representative Discusses Bombing Holy Sites In Response To Nuclear Terrorism

On a Florida radio talk show last week, US House of Representatives member Tom Tancredo, a Republican from Colorado and a member of the House International Relations Committee, angered Muslims by answering a rather hypothetical question. A press release issued by the Muslim Public Affairs Council reports the following colloquy:

After being asked what the U.S. should do in response to a nuclear attack on this country by "extremist fundamentalist Muslims." Tancredo said one possible response would be to "take out their holy sites." When Campbell asked if the congressman was "talking about bombing Mecca," Tancredo replied, "Yeah."

Muslim groups have called on Tancredo to apologize. The Denver Post reported yesterday that Tancredo said: "I'm not suggesting we do it. I have nothing to apologize for in that respect. I'm simply saying to have a good discussion on this issue, a thorough discussion on what is perhaps the most serious kind of possible situation we could face as a civilization, that you cannot simply take things off the table because they are uncomfortable to talk about."

AF Academy Faculty Ask For Truce To Solve Religion Problem

This week's Chronicle of Higher Education carries an interesting article by Prof. Barry S. Fagin, a faculty member at the US Air Force Academy and president of its Faculty Forum. Titled Faith and Tolerance at the Air Force Academy, he focuses on the pressures felt by faculty who find themselves in the middle of the political hurricane created by charges of religious intolerance at the Academy. (Here are some prior postings on the situation: 1 , 2 ). Prof. Fagin pleads: "Resident faculty members of the academy, civilian and military, have the experience, ability, and will to solve this problem. But to do so, we need both sides to step away from Defcon 4 alert. Sheath the bayonets, put the legal briefs back in the drawer. Give us a climate where those of us responsible for shaping young minds are as free as possible."

Commentary On Governmental Definition of "True Religion"

Rick Garnett has an interesting posting on Prawfs Blog titled Government Statements About "True Religion". He focuses on Tony Blair's statements after the recent London bombings that the "true voice of Islam" has to be mobilized. He raises the difficult question of whether it is appropriate for government to declare what the true interpretation of a religion is. Of course, President Bush made very similar statements about the peaceful nature of true Islam after 9-11.

It seems to me that one of the core functions of the Establishment Clause-- one that is often overlooked-- is to prevent government from redefining or watering down religious doctrine. That was Roger Williams' position in 1644 when he wrote in The Bloudy Tenent of Persecution, For Cause of Conscience: "When they have opened a gap in the hedge of or wall of separation between the garden of the church, and the wilderness of the world, God hath ever broken down the wall itself. . . and made his garden a wilderness, as at this day. And that therefore if He will ever please to restore His garden and paradise again, it must of necessity be walled in peculiarly unto Himself from the world." -- By the way, this, and not Jefferson's Letter, is the origin of the famous "wall of separation" metaphor.

Government attempts to redefine religion in numerous subtle ways. One of my favorite examples is the seemingly innocuous issuance by the US Postal Service of the Hanukkah Stamp. This is a statement by government that the minor Jewish holiday of Hanukkah is really Judaism's important celebration. It is the one that deserves recognition. Never mind, for example, about Rosh Hashanah where there is a stronger tradition of sending greeting cards through the mail.

Those who see the Establishment Clause as a threat to religion should consider the prospect of a prayer book that has been written by Congress or a state legislature after hearings that result in all the political compromise found in most legislation.

Alberta to Protect Officials With Religious Objections to Performing Gay Marriage

Now that Canada has recognized same-sex marriages, individual provinces are concerned about protecting marriage commissioners who have religious scruples against performing such ceremonies. (See earlier posting.) Alberta Justice Minister Ron Stevens has promised to introduce legislation to shield commissioners from human rights complaints in such cases, even if it means invoking the "notwithstanding clause" of Sec. 33 of the Canadian Charter of Rights and Freedoms that permits laws to override the Charter, subject to re-enactment every 5 years. Today's Globe and Mail reports on these developments and says that the Canadian federal government is unlikely to oppose such a law. In Alberta, use of the "notwithstanding clause" requires a province-wide referendum. A marriage minister in Manitoba has already been sued by a gay couple after he refused to perform a wedding ceremony for them.

Opinion Available in PA Muslim Firefighter's Case

A previous posting noted the first interpretation of Pennsylvania's Religious Freedom Protection Act by a Philadelphia trial court. It granted a preliminary injunction to a Muslim firefighter to permit him to return to his job without shaving his beard. The court's opinion supplementing its earlier memorandum is now available. Deveaux v. City of Philadelphia, 2005 Phila. Ct. Com. Pl. LEXIS 331 (July 14, 2005).

Rastafarians' Conviction For Possessing Marijuana In Natl. Park Upheld; Sentence Vacated

Last week, the US District Court for the Eastern District of Pennsylvania issued an interesting opinion in an appeal of a federal Magistrate Judge's opinion in United States v. Forchion, 2005 U.S. Dist. LEXIS 14791 (July 22, 2005). Defendants who are Rastafarians, were convicted under federal law of smoking marijuana in Philadelphia's Independence National Historical Park. 36 CFR 2.35 prohibits the possession of any controlled substance in a National Park. Defendants claimed that smoking marijuana is a "sacrament" in their religion, akin to a Christian's consumption of wine at communion. They claimed that their conviction violated their Free Exercise rights as protected by the Religious Freedom Restoration Act. The court upheld their conviction, holding that "With so many alternative places to practice Rastafarianism, the ban on marijuana possession in national parks does not force [defendants] to choose between abandoning their faith and facing criminal prosecution."

In sentencing defendants, the Magistrate Judge placed them on probation, but imposed a number of conditions that totally prohibit them from possessing or using controlled substances. The court vacated the sentence and remanded the case to the Magistrate Judge to consider the "thorny constitutional and statutory questions that the six conditions raise".

One aspect of this decision merits comment. While the court is correct that the challenged regulation does not preclude defendants using marijuana in their homes, places of worship or other non-federal locations, those uses would likely violate state law and, after City of Boerne v. Flores, RFRA would not protect defendants in a state law prosecution.

CLS At SIU Appeals Denial of Preliminary Injunction

Yesterday, the Christian Legal Society at Southern Illinois University School of Law filed an appeal with the 7th Circuit Court of Appeals challenging the trial court's July 5 denial of preliminary injunction. Alliance Defense Fund announced the appeal that is discussed in this AP report. SIU claims that the CLS requirement that its voting members and leaders adhere to basic Christian beliefs, including beliefs on sexuality, violates the university's affirmative action policy. This is one of a series of cases filed by CLS around th country to challenge university rules that require student groups to admit gays and lesbians to membership on an equal basis. (See prior posting.) Links to the pleadings and opinion in the district court, and to the notice of appeal, are on Jeremy Richey's Blawg.

This Week's New Church-State Articles

From SmartCILP:
Amy Stambach, Rallying the Armies or Bridging the Gulf: Questioning the Significance of Faith-Based Educational Initiatives In a Global Age, 12 Indiana Jour. of Global Legal Studies 205-226 (2005).

Roundtable Discussion: Religious Organizations Filing for Bankruptcy. Moderator: Hon. Bruce A. Markell; Samuel J. Gerdano, Douglas Laycock, Jonathan Lipson, Nancy Peterman, Robin Phelan and David Skeel. 13 Am. Bankr. Inst. L. Rev. 25-57 (2005).

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Vol. XX, Issue No. 1, of the Hamline University Journal of Law and Religion has been issued. A preliminary table of contents is available online.

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From SSRN:
Richard W. Garnett, American Conversation With(in) Catholicism, 102 Mich. L. Rev. 1191 (May 2004).

FL Faith-Based Advisory Board Challenged Under Blaine Amendment

The Tallahassee Democrat reports this morning on a suit filed in Leon County Circuit Court challenging the activities of the Governor's Faith Based and Community Advisory Board. The Council for Secular Humanism, one of the plaintiffs, argues that the activities violate the provisions in Art. I, Sec. 3 of Florida's Constitution that prohibit direct or indirect use of state funds to aid any church, sect, religious denomination or sectarian institution.

White House Plans Summit on Grants for Faith-Based Organizations

Yesterday, a White House press briefing by Jim Towey, Director of the Office of Faith Based and Community Initiatives, announced the President had met with 20 African-American leaders of the faith community. During that meeting, the President announced plans for a White House summit in March to discuss private-sector policies that often prevent faith-based organizations from qualifying for corporate and foundation grants. Many granting organizations currently rule out grants to all faith-based organizations, or require grantees to have 501(c)(3) status, which many churches do not have.

Kabbalists Place Death Curse on Ariel Sharon

Ynet News reports today that some 20 right-wing activists opposed to Israel's pullout from the Gaza Strip recently performed a Kabbalistic ceremony called Pulsa Dinura, at which they called for "angels of destruction" to kill Ariel Sharon. Supposedly authorized by rabbis, the ceremony took place at the ancient cemetery in Rosh Pina. Rabbi Yosef Dayan of the West Bank settlement of Psagot described the ceremony: "The rabbis ordered that those participating in the event must be married (no widowers or divorcees), over 40 years of age and bearded. Everyone was dressed in black, except for one person who was dressed in white." He went on to say that two hours before the ceremony, questions were raised regarding Sharon’s religion. The ceremony may be conducted only against a person who is recognized by traditional Jewish law as being Jewish. “The kabbalist rabbis told us not to do it, but eventually we decided to perform the ceremony, as in any case Sharon is considered by the public to be Jewish.”

Baruch Ben-Yosef, an attorney who was present at the ceremony said: "We said the prayer near the grave of (hanged pre-state activist) Shlomo Ben-Yosef - the most suitable site - as he is Sharon’s antithesis. Ben-Yosef sacrificed his soul for the people of Israel, while Sharon is robbing the nation. We hope the lord will take him from us."

Subpoena Against Archdiocese Upheld Against Constitutional Attack

In a long opinion issued yesterday in Roman Catholic Archbishop of Los Angeles v. Superior Court of Los Angeles County, a California court of appeals upheld a grand jury subpoena directed to the Archdiocese for numerous documents needed in the grand jury's deliberations over whether to indict two priests for sexually molesting children while they worked for the Archdiocese. The Archdiocese raised defenses under the free exercise clauses of the US and California constitutions, under the establishment clause of the US Constitution, various claims of privilege and other defenses. The court found that only one of the numerous documents was protected from discovery by the grand jury. Among other holdings, the court found that the rule in Employment Division v. Smith applies to the federal free exercise challenge to the production of documents.

Is The Issue Terrorism Or Taxes?

In his Sunday sermon on July 24, Pope Benedict XVI condemned "the execrable terrorist attacks which caused death, destruction, and violence in different countries including Egypt, Turkey, Iraq, and Britain", but did not mention the the attack that took place Netanya in Israel on July 12. Yesterday, Israel's Ministry of Foreign Affairs summoned the Vatican ambassador to convey a strong statement condemning the omission. Today the Italian publication Asia News alleges that the Foreign Ministry statement was really a smokescreen for Israel's cancellation of planned negotiations with the Vatican on a new treaty to confirm the Church's tax exemptions and property rights in Israel. However it offers no explanation for the omission of Israel in the Pope's sermon.

Prisoner Claim On Denial of Ramadan Accommodation Moves Ahead

Yesterday in Conyers v. Abitz, the U.S. Seventh Circuit Court of Appeals permitted a prisoner's claim against Wisconsin prison officials to move forward, rejecting the state's claim that his grievance was not filed in a timely manner as well as other defenses. While serving time in prison segregation, Conyers asked for late bagged dinners during the Fast of Ramadan. He was told that the deadline to sign up for them had passed. The sign-up deadline had been published in the prison's daily bulletin, but Conyers did not have access to that bulletin while in segregation.

Roberts and Recusal

The impact of Judge John Roberts' Roman Catholic religious beliefs on his performance as a Supreme Court Justice has become the focus of much attention. In yesterday's Los Angeles Times, an op-ed by Jonathan Turley reported on an exchange that occurred during an informal meeting between Roberts and Illinois Senator Richard Durbin. Asked what he would do if he faced a conflict between what the law required and what his Church considered immoral, Roberts supposedly, after a long pause, said he would probably recuse himself in the case. Today the Washington Times reports that Durbin's office disputes Turley's account. Durbin's press secretary Joe Shoemaker said that Durbin never asked that question and Roberts never said he would recuse himself in such a case. Turley however says he confirmed the story with Shoemaker before he wrote his article.

Whatever in fact happened, perhaps the more interesting question is what a sincere Catholic judge should do when a case calls on him or her to make a ruling that violates important teachings of the Church. There has been a lively discussion of this issue on Mirror of Justice blog, including this posting. Also related to the controversy is an interesting article in an issue of last year's Catholic Lawyer by St. Thomas Law School faculty members Gregory C. Sisk & Charles J. Reid, Jr., Abortion, Bishops, Eucharist, and Politicians: A Question of Communion.

Most Iraqi Jews In Israel Precluded From Recovering Citizenship By Draft Iraqi Constitution

One of the issues that has been largely under-reported in connection with the draft Iraqi constitution is its provisions that effectively deny most Iraqi Jews who emigrated to Israel the right to reclaim their Iraqi citizenship. The issue is mentioned in an article in today's Conservative Voice. A June 30 draft of the constitution (see post on Jihad Watch) specifically precluded anyone holding Israeli citizenship from obtaining Iraqi citizenship or holding dual citizenship with Iraq. In the July 20 draft of the Constitution, those specific references to Israel have been removed. However the new draft still effectively limits the ability of most Iraqi Jews in Israel to automatically regain citizenship because of the date they left Iraq. Most of them left and went to Israel in the 1950's. Chapter Two, Sec. 4 of the new draft Constititon provides: "An Iraqi who was stripped of his citizenship after February 8, 1968 for any reason is considered Iraqi and is entitled to regain [his citizenship]." A full text of both drafts is available from the Carnegie Endowment. The translator points out that the Feb. 8 date may be a drafting error. Presumably the intent was to focus on the date that Saddam's Baathist Party came to power, which was July 1968.

"Peace Tax Seven" In UK Told To Go To Strasbourg

In England, a group of conscientious objectors known as the "peace tax seven" have been trying to get the Treasury to stop using their tax money for military spending. (Full text of letters between Treasury and protesters.) (Text of plaintiffs' petition in the Administrative court.) Appearing in the Royal Courts of Justice , attorneys for the protesters argued that refusal to set up a special account for the protesters' tax payments violated the European Convention on Human Rights. According to a report in today's Guardian, Mr. Justice Collins said that the former European Commission on Human Rights had decided the issue against conscientious objectors two decades ago. Any reconsideration would require a ruling by the European Court of Human Rights in Strasbourg. In order to expedite the parties' exhaustion of domestic courts before filing in the European Court, Justice Collins refused the seven leave to seek judicial review.

Falwell Cleared By IRS and FEC

Last year during a chapel service at Southwestern Baptist Theological Seminary in Fort Worth, Texas , Rev. Jerry Falwell urged support for the re-election of President George W. Bush. This led to complaints about Falwell's political activities being filed with the Internal Revenue Service and the Federal Election Commission. The complaint to the IRS, filed by Americans United for Separation of Church and State, claimed that Falwell’s endorsement of Bush violated the Southwestern Baptist Theological Seminary’s tax-exempt status.

Today the Lynchburg, Virginia News & Advance reports that both federal agencies have dismissed those complaints. Falwell was represented by Liberty Counsel. Its president, Mathew D. Staver, reacted to the ruling: "Personal statements by an invited speaker expressing their views regarding political candidates do not violate the IRS Tax Code." Falwell's reaction was: "As I see it, while we can’t call it a legal precedent, it is clear that the IRS has determined that pastors have the same First Amendment rights as newspapers. I think this gives pastors free sailing to speak their minds on candidates." [Thanks to Becky Dale via Religionlaw listserv for the information.]

Christian Exodus Movement Targets South Carolina

South Carolina has become the target of the Christian Exodus Movement. The Philadelphia Inquirer this morning reports on the group's strategy: move thousands of conservative Christians to South Carolina to elect like-minded state and local officials. The Action Plan on the group's website lays out this initial strategy: "The first move of ChristianExodus.org members has commenced. Our research committee selected two city/county combinations for Phase One. We believe we can reestablish constitutionally limited government in these two counties with the relocation of 500 Christians to one and 2,000 to the other. That number of activist emigres, when combined with the present Christian electorate, will enable constitutionalists to win the city council, the county council, elected law enforcement positions, and elected judgeships. We will then be able to protect our God-given and constitutionally protected rights within our local community."

The group's website lists eleven areas in which they hope to act, including outlawing abortion, gay marriage and teaching of evolution in the schools; restoring school prayer, public posting of the Ten Commandments; promoting gun rights, rights of fathers in child custody cases and protection of private property from arbitrary government seizure. Another page on its website argues that the 14th Amendment was fraudulently enacted, and that the 16th amendment (permitting a federal income tax) and 17th Amendment (requiring direct election of US Senators) should be repealed. The ultimate plan is to secede if the federal government interferes with their state and local agenda.

The Philadelphia Inquirer reports, however, that so far only 5 families have actually moved to South Carolina as a result of the organization's efforts.

Judge Roberts and the "Catholic Card"

Last Wednesday in the liberal magazine American Prospect, Adele M. Stan's article Meet John Roberts focused in part on the religon of the new Supreme Court nominee:

"In choosing a Roman Catholic, Bush is betting he’s bought himself some insulation -- any opposition to Roberts, particularly because of his anti-abortion record, will likely be countered with accusations of anti-Catholicism. A timely pitch, one must say, to conservative Catholic voters prior to the midterm elections. Make no mistake, though: Sterling credentials or not, John Roberts should not be confirmed for a seat on the Supreme Court. He has demonstrated too little respect for the ideals of the Constitution’s Framers. Democrats owe it to those who have stood by them, through thick and thin, to oppose this nomination. So go to it, Senators Durbin, Leahy, Kennedy, and Biden. Don’t vote to let this nomination out of the Judiciary Committee on which you sit. Millions of liberal Catholics, and Americans of all stripes, are counting on you to vote your conscience."

The same day, Catholic League President William Donohue responded: “The fact that Jew baiting did not accompany the nominations of Ginsburg and Breyer shows how this nation has progressed. Unfortunately, within 24 hours of Roberts’ nomination, Catholic baiting has raised its ugly head. And the fact that it is coming from a mainstream liberal source is even more disconcerting. We hope this is not the beginning of an ugly few months.”

Couple To Be Sentenced In Death of Infant Denied Antibiotics In Favor of Prayer

The Associated Press reported Sunday on the upcoming August 12 sentencing of Indiana parents who insisted on praying for their seriously ill newborn instead of seeking medical assistance for her. The child died less than two days after she was born from an infection that was treatable with antibiotics. The parents, Dewayne and Maleta Schmidt were convicted in May of reckless homicide. They could be sentenced to up to 8 years in prison; however they are asking for probation and monitoring by a child welfare agency so they will not be separated from their two other children. The couple who belong to the General Assembly and Church of the Firstborn at Morgantown say they would do the same thing again, even though their church does not totally prohibit medical treatment. It merely encourages prayer and faith healing.

Mega-Churches vs. NJ Zoning Authorities

The Bridgewater, New Jersey Courier-News today carries a long and interesting article on the clashes between zoning authorities and mega-churches in the Northeast, and particularly in New Jersey. It is a useful examination of the strong feelings on both sides, and of the leverage that the RLIUPA gives to churches in these battles. In a separate article, the paper reports on proposed changes in Bridgewater's Master Plan to require larger lot sizes for "accessory uses" of property by religious institutions, such as gymnasiums and child care centers.

Dispute Over Control Of CA Mosque Moves To Court

A feud between two factions over control of a mosque in Lodi,California has now made its way to the courtroom in Stockton, California, according to a report in Friday's Lodi News-Sentinel. The judge continued the case until August 12. The major legal issue, according to an earlier report by the News-Sentinel seems to be whether Mosque President Mohammad Shoaib resigned his position, or merely threatened to do so. That in turn is unclear because the alleged resignation letter was written in Urdu, the language spoken in Shoaib's native Pakistan. (July 13 Tracy Press story.) If Shoaib had resigned, then his firing of the mosque's imam, Shabbir Ahmed, would not be valid. Shoaib claims he fired the imam two days after the clergyman told an immigration judge in San Francisco that he had once made speeches in Pakistan supporting the Taliban’s efforts against the United States. Shoaib also removed four of the mosque's board members.

Plaintiffs challenging Shoaib's actions are represented by high profile attorney Brian Chavez-Ochoa who says that the suit is necessary to keep the mosque in compliance with state corporation law and its own bylaws. "This is just about the corporation," Chavez-Ochoa said. "If we don't seize control, the state of California could suspend the status of the (mosque) corporation." The mosque has also been the subject of national attention because two of its members were arrested in June in an FBI terrorism investigation. (Detroit News report.)

The 10 Commandments Rulings As They Are Implemented On The Ground

As we have learned many times over the decades, even when the Supreme Court rules on a matter, it is not clear that "in the trenches" there is compliance. And so it seems with this story today from WKYT in Lexington, Kentucky:

"Crittenden County officials endorsed a Baptist preacher's plans to put a Ten Commandments monument on the courthouse grounds in western Kentucky. The Rev. Tony Alexander, pastor of Glendale General Baptist Church, intends to raise money to donate the monument. 'Christian people need to take a stand,' he said. The $1,200, six-foot granite tablet inscribed with the commandments will be placed on the lawn near another monument at the courthouse 45 miles northeast of Paducah. The county Fiscal Court approved Alexander's plans Tuesday. 'These are the laws God handed down,' Alexander said. 'If we can't abide by them, the local laws aren't worth much.'"

And then, in what might be seen as the understatement of the year: "Judge-Executive Fred Brown said the monument will probably be placed near several historical displays, and since the commandments would also be considered a historical marker, Brown said he hopes no one will object to them. 'But if they do, they do,' he said. 'We don't have any control over that. ... I would hope that no one would object, but you never know with this kind of thing.'"

Meanwhile, in a protest that raises no constitutional problems, funeral homes and a tire store in Bullit County, just south of Louisville, are handing out Ten Commandments yard signs for people to put up in front of their homes or businesses.

Should Test Oath Clause Limit Scope of Roberts Questioning?

Judge John Roberts' position on abortion rights promises to be a major focus in the upcoming Supreme Court confirmation hearings in the Senate. As the media speculates about the impact of his Roman Catholic faith on his views about Roe v. Wade, over on the Religionlaw listserv there is an interesting discussion on whether there are Constitutional objections to asking him about his religious beliefs. Do the provisions of Art. VI, Clause 3: "no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States", limit the Senate's right to question him about the impact of his religious beliefs? Here is the beginning of the discussion thread.

Canada Enacts Law Permitting Gay Marriage, Protecting Religious Objections

Canada on Wednesday became the fourth country to officially recognize gay marriage as the Senate passed Bill C-38 (Washington Blade ) and the act received royal assent (RedNova News).

The new statute contains two provisions specifically protecting the religious freedom of those who object to gay unions: "officials of religious groups are free to refuse to perform marriages that are not in accordance with their religious beliefs" and "no person or organization shall be deprived of any benefit, or be subject to any obligation or sanction, under any law of the Parliament of Canada solely by reason of their exercise, in respect of marriage between persons of the same sex, of the freedom of conscience and religion guaranteed under the Canadian Charter of Rights and Freedoms or the expression of their beliefs in respect of marriage as the union of a man and woman to the exclusion of all others based on that guaranteed freedom."

The full text and legislative history of the Act is available online.

Another Link To Religion Clause Brief of Roberts

In a posting on Tuesday, I called attention to an article that reviewed and linked to the religion clause briefs that SCOTUS nominee John G. Roberts co-authored when he was at the Department of Justice. Oglethorpe University Prof. Joseph Knippenberg points out to me that the article only links to Roberts' brief on the petition for cert. in Lee v. Weisman, and he furnishes this link to Roberts' merits brief in the case: http://www.usdoj.gov/osg/briefs/1990/sg900105.txt

Christian Dalits Seek Same Benefits In India As Dalits of Other Faiths

Bellevision Global carries a long report today on the struggle in India of Dalits (formerly known as "untouchables") who are now Christians to obtain many of the special rights granted by law to Dalits of Hindu, Sikh and Buddhist faiths. A Public Hearing on their plight was held the day before the Supreme Court of India will hear an appeal by the Public Litigation Centre on the Constitutional validity of existing legislation that grants those rights on the basis of religious faith. The so-called "People's Tribunal" headed by former Indian Supreme Court Justice SB Sawant concluded: "It is necessary that the Christian Dalits are given the same benefits aids and advantages, facilities and opportunities as are given to Dalits of Hindus, Sikhs and Neo Buddhists on the basis of caste to which they belong before conversion and which they are carrying even today."

Proposal Will Repeal Victoria's Ban On Witchcraft

In the Australian state of Victoria, the attorney general has introduced legislation to repeal the Vagrancy Act which, among other things, bans witchcraft and fortune-telling. In a report today in The Age, Gavin Andrew, Victorian coordinator for the Pagan Awareness Network, is quoted as saying that the repeal will make it clear that Victoria's Racial and Religious Tolerance Act applies to pagans and witches. Some of the other provisions in the Vagrancy Act will be the subject of new legislation, according to a report in Stuff.

1st Amendment Claim In PBS Radio Station Sale

There is quite a battle going on in Orange County, California over the decision by the cash-strapped Coast Community College District to sell off its Public Television Station, KOCE. It rejected a $40 million cash bid in favor of a much lower one from the KOCE Foundation that would keep the station as part of the PBS system. Last month in Word of God Fellowship, Inc. v. Coast Community College District, 2005 Cal. App. Unpub. LEXIS 5454 (CA Ct. App., June 23, 2005) an appellate court invalidated the sale, holding that the reason for the acceptance of the lower bid was that the high bid came from a group of televagelists. In reversing the trial court, the court of appeals said: "In essence, this means a new sale -- or, if the district's trustees find that the prospect of televangelists eventually acquiring KOCE to be too distasteful, no sale at all. As we have shown they certainly have at least that discretion under the statute. But if they do sell, it must be a fair sale to the highest cash bidder, with no favoritism as regards bidding deadlines."

Today, the Los Angeles Times reports that the high bidder, Daystar Television Network, in another attempt to buy the station, will file suit in federal court for damages arguing that its free exercise of religion rights were violated when the college district refused to sell to it. The suit claims that the defendants' actions were "designed to interfere with the plaintiff's right to acquire KOCE-TV based solely on the fact that plaintiff is a religious organization" and that its "programming [is] designed to promote and disseminate Christian tenets, teachings, beliefs and values."

Daylight Savings Proposal Creates Religious Conflict For Jews

The Orthodox Jewish Institute for Public Affairs issued a release yesterday opposing the provision in the pending federal Energy Policy Act of 2005 that would extend Daylight Savings Time by two months. The time shift would be extended to run from early March to late November. The Orthodox Union is concerned that pushing sunrise back to 8:00 AM or later in some parts of the country will create religious problems for Orthodox Jews. The time for morning prayers (Shacharit service) is tied to sunrise time. In some places, this will make it impossible for individuals to say those prayers before their workday begins. Similar issues already arise in mid-winter months when sunrise is late.

MA Prisoner Free Exercise Claim Moves Ahead In Part

An opinion in a prisoner Free Exercise case decided by a state trial court in Massachusetts last month has just become available. Jackson v. Verdini, 2005 Mass. Super. LEXIS 279 (June 9, 2005) involved a challenge by two Muslim prisoners claiming that they were entitled to have Friday Jumuah services led by an Imam every week, instead of every second week as the prison was doing. One of the prisoners, a male, also claimed the right not to be patted down by female guards except in an emergency. The court held that the prisoners had exhausted their administrative remedies. It also held that the provision in 42 USC 1997e(e) precluding a damage action for mental or emotional injury without showing physical injury does not apply here, because a Free Exercise claim is a claim for violation of intangible rights. However the court dismissed the prisoners' claim for monetary damages under the Massachusetts Civil Rights Act (G.L.c. 12, §§ 11(H) & 11(I)), because defendant was protected by sovereign immunity.

More on Roberts and Religion Clauses

Nathan Diamant wrote a column for Beliefnet yesterday, giving his fairly upbeat interpretation of the scant evidence we have about Supreme Court nominee John G. Roberts' views on First Amendment religion issues. (See earlier related posting.) Commenting on the brief that Roberts wrote as Deputy Solicitor General in Lee v. Weisman, Diamant said: "the brief made a mainstream legal argument in support of the non-denominational prayer at issue in the case, which was offered at a junior high school graduation by a rabbi. The argument, essentially, was that such a prayer was in the tradition of many non-denominational invocations which take place at public ceremonies. This tradition, the brief argued, coupled with the fact that students were not required to attend the graduation ceremony, meant that the prayer did not constitute an 'establishment of religion' as barred by the First Amendment. Four of the nine justices agreed with this view, and its underlying arguments have been incorporated into the jurisprudence in subsequent cases--hardly a radical position."

Another Chapter In Battle Over LA School Prayer

The Associated Press reported today on another chapter in the long-running litigation over prayer in various school functions in the Tangipahoa Parish, Louisiana schools. (See prior posting.) According to the story, federal district court Judge Ginger Berrigan found that the teacher did not violate an outstanding consent decree when she held a before-school Bible club, encouraged students to bring their Bibles to school and led students in a silent prayer following the Pledge of Allegiance. The existing order only prohibits prayer at "school sponsored events" such as athletic events, prayers over the public announcement system and during school assemblies. The ACLU says it is now considering a separate suit over the activities of fourth-grade teacher Pamela Sullivan.

In Bahrain, Women-Only Colleges Approved At Request of Islamists

The Arab Times reported yesterday that Bahrain's parliament has approved a draft law to set up women-only colleges as part of the country's university system. This was in response to Islamist demands for separation of the sexes in colleges.

Iraq Constitution Draft Gives Shariah Greater Role

A working draft of the new constitution being put together for Iraq reveals a much greater role for Islamic law than the Interim Constitution, according to a report today in the New York Times. The new constitution guarantees equal rights for women as long as those rights do not "violate Shariah," or Koranic law. It would also require court cases dealing with marriage, divorce and inheritance to be judged according to the law practiced by the family's sect or religion. This would repeal a liberal personal status law enacted in Iraq in 1959. The new provision would mean that Shiite women, regardless of age, would need permission of their families to marry, and might be subject to divorce at the will or their husbands.

However the fate of the new constitution is in some doubt as two Sunni members of the drafting committee were assassinated Tuesday afternoon, according to the New York Times.

A Wealth of New Scholarship

From SmartCILP this week, a wealth of new scholarship:

Enrique Armijo, Belief Behind Bars: Religious Freedom in Prison, RLUIPA, and the Establishment Clause, 31 New England Jour. on Criminal & Civil Confinement 297-330 (2005).

Kristen A. Carpenter, Considering Individual Religious Freedoms Under Tribal Constitutional Law, 14 Kansas Jour. of Law & Public Policy 561-606 (2005).

Angela Fernandez, Record-Keeping and Other Trouble Making: Thomas Lechford and Law Reform in Colonial Massachusetts, 23 Law & History Review 235-277 (2005).

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Roger Williams Law Review hosts a Symposium--Religious Liberty in America and Beyond: Celebrating the Legacy of Roger Williams on the 400th Anniversary of His Birth. Articles in it are:

Edward J. Eberle, Introduction, 10 Roger Wms. U. L. Rev. 279-287 (2005).

Edward J. Eberle, Roger Williams on Liberty of Conscience, 10 Roger Wms. U. L. Rev. 289-323 (2005).

Steven D. Smith, The Tenuous Case for Conscience, 10 Roger Wms. U. L. Rev. 325-358 (2005),

Kathleen A. Brady, Foundations for Freedom of Conscience: Stronger Than You Might Think, 10 Roger Wms. U. L. Rev. 359-384 (2005).

Michael J. Perry, A Right to Religious Freedom? The Universality of Human Rights, The Relativity of Culture, 10 Roger Wms. U. L. Rev. 385-425 (2005).

Richard S. Kay, Michael Perry's Right to Religious Freedom, 10 Roger Wms. U. L. Rev. 427-438 (2005).

Jonatas E.M.Machado, Freedom of Conscience and the Rights of Non-TOTFers, 10 Roger Wms. U. L. Rev. 439-449 (2005).

Jonatas E.M.Machado, Freedom of Religion: A View From Europe, 10 Roger Wms. U. L. Rev. 451-535 (2005).

Consent Decree In Another 10 Commandments Case

[CORRECTED] The Atlanta Journal Constitution reported yesterday on the consent decree (full text) issued by U.S. Georgia District Court Judge William C. O’Kelley ordering the removal of a poster-size depiction of the Ten commandments from the wall of the Barrow County, Georgia courthouse. The county is barred from posting similar displays on public property. However individual county employees are still permitted to display the 10 Commandments on their person or in their personal office. The suit had been filed by the ACLU of Georgia, which also recovered expenses and attorneys' fees of $150,000.

"Tea Leaves" On Roberts On Church-State

Beliefnet tonight ran an article titled Clues on Roberts Church-State Views. The story quotes lengthy excerpts from two amicus briefs to the Supreme Court co-authored by US Supreme Court nominee Judge John G. Roberts while he was Deputy Solicitor General. One was in the high-school graduation prayer case of Lee v. Weisman. The other was in Westside Community Bd. of Educ. v. Mergens, the case raising the constitutionality of permitting religious groups to meet on school premises after school, as called for by the Equal Access Act.

It's Roberts for SCOTUS-- Here Is Link To Hearings on Him in 2003

By now, the news media have made clear that President Bush's nominee to the US Supreme Court will be DC Circuit Judge John G. Roberts, Jr. Here is a link to the April 30, 2003 Senate Judiciary Committee hearings when he was being considered for the Circuit Court.

Scopes Trial Photos Discovered

Sixty unpublished photos from the Scopes Monkey Trial 80 years ago, like this one of William Jennings Bryan being interrogated by Clarence Darrow, have been discovered in the archives of the Smithsonian Institution. They were taken by Watson Davis, managing editor of Science Service, who covered the trial, according to an AP report carried in today's Washington Post. The Smithsonian has placed a dozen of the photos on its website.

Developments In New Challenge to "Under God" In Pledge

After Michael Newdow lost his U.S. Supreme Court challenge last year to the inclusion of "under God" in the Pledge of Allegiance, he filed another suit that avoided the standing problem that led to the demise of his first attempt. The new suit is brought on behalf of eight plaintiffs who are either children or custodial parents. Yesterday, there were two developments in the new case in federal district court in Sacramento, California.

First, the San Diego Union Tribune reported that Judge Lawrence Karlton ruled that plaintiffs could not challenge the Pledge itself, and could move forward only to challenge the recitation of the Pledge in public schools. Second, Judge Karlton permitted the Knights of Columbus and seven families who are KofC members to intervene in the case. The Knights of Columbus' Press Release said that they "had a central role in adding 'under God' to the Pledge 51 years ago, and are determined to do everything possible to defend it in this court challenge."

German Official Suggests Keeping Mosques Under Electronic Surveillance

According to Islam Online yesterday, German Interior Minister Otto Schily has said that the German government is considering placing all mosques under observation through installing closed-circuit television cameras. Condemning "hate-inciting imams", Schily followed the lead of Bavarian Interior Minister Guenther Beckstein who earlier has suggested planting spies and cameras inside mosques and censoring sermons. However many other officials condemned the idea of monitoring places of worship. There are approximately 3.4 million Muslims in Germany.

Florida's Former Secy. State Urged Kabbalah Water For State Ag. Dept.

The Forward last Friday called attention to a report published earlier this month in the Orlando Sentinel regarding former Florida Secretary of State Katherine Harris. Harris, who gained notoriety during the 2000 Presidential election, is now a member of the US House of Representatives from the 13th District of Florida. In 2001, while Harris was still Florida's Secretary of State, apparently she attempted to get Florida's Department of Agriculture to test Kabbalah Water as a potential treatment for Citrus Canker then spreading through Florida orange groves. The Orlando Sentinel found that at Harris' urging, state researchers worked with a rabbi and a cardiologist to test "Celestial Drops". Harris learned about the water from Rabbi Abe Hardoon, who now heads the West Boca Kabbalah Learning Center. Harris denied knowing that Celestial Drops was connected with the Kabbalah Center. She said she recommended it after learning that it had been developed by "Israeli scientists".

Line Drawing In New 10 Commandments Displays

The confusion created by Supreme Court's line drawing in its recent Ten Commandments decisions is indicated by a report in this morning's Casper, Wyoming Star-Tribune. Casper had one of the Fraternal Order of Eagles monuments in its City Park. In 2003, it removed the monument under threat of a lawsuit. Now the city is building a new downtown plaza. It plans to take the Ten Commandments monument out of storage and place it there, along with monuments to other documents that played an important part in the development of American law. Casper's city attorney, Bill Luben, has ruled that this is permissible under Van Orden v. Perry because the display will emphasize the Ten Commandments' historic value, not their religious value.

MA Referendum Challenging Stem Cell Research Stymied Because of CO Provision In Law

In a ruling filled with some irony, Massachusetts Attorney General Tom Reilly has rejected a referendum petition that sought to get voters to overturn Massachusetts' new law that encourages stem cell research (MGL Chap. 111L- full text.). The ruling is reported in a story by the Associated Press and carried by Dateline Alabama. The Massachusetts Constitution provides: "no law that relates to religion, religious practices or religious institutions ... shall be the subject of a referendum petition." The AG ruled that the stem cell law is not subject to referendum because the law (Secs. 5(e) and 7(a)) contains conscientious objection provisions, protecting doctors, nurses and other medical employees from being required to do stem cell research that conflicts with their "sincerely held religious practices or beliefs". Larry Cirignano, the Catholic activist who began the referendum drive (see June 16 Boston Globe), plans to appeal the attorney general's ruling.

Bald Eagle Protections Challenged By Non-Indian Religious Adherents

The Federal Bald and Golden Eagle Protection Act prohibits even the possession of Eagle feathers or parts. However, there is an exception for Native Americans who use eagle feathers, heads and talons in religious ceremonies. The National Eagle Repository, a federal agency, collects dead eagles from zoos, game wardens and highway departments, and, under a permit system (50 CFR 22.22), distributes them to those holding a Certificate of Indian Birth for religious uses.

The Los Angeles Times today reports that this carefully constructed system is breaking down. Thousands of non-Indians have embraced Native American beliefs and ceremonies. Four of them are suing in federal court in Utah claiming that the permit system that excludes them violates their constitutional right to free exercise of religion. Also demand among Native Americans is increasing as tribes attempt to revive traditional practices. Finally private collectors, particularly in Europe, are willing to pay large sums for regalia with eagle feathers. All this means that black-market prices for eagle feathers are soaring, and the government fears an increased illegal killing of eagles will occur.

Pakistan Province Passes Law Creating Office to Enforce Islamic Observance

In Pakistan, the Provincial Assembly of the North West Frontier Province, a province on the Afghan border, has enacted a controversial new law known as the Hasba Act. Italy's Asia News reported last week that the act creates the office of the muhtasib, a religious ombudsman whose function is to assure that people strictly follow Islamic rules, such as Friday prayers, separation of single men and women, and limitations on singing and dancing. The bill now goes to the governor of the Province for his signature. The Times of India quotes the governor, Khalilur Rehman, as saying that he will take every constitutional step to prevent "Talibanization" of the region.

Last Friday, Pakistan's attorney general, on behalf of the president, referred the provincial bill to Pakistan's Supreme Court for an advisory opinion on whether the bill violates Pakistan's constitution. According to a report on this by Dawn, a 5-member Supreme Court panel will hold a hearing on the bill on July 25.

Meanwhile, the Pakistan Daily Times today reports that Akram Khan Durrani, Chief Minister of the Northwest Frontier Province, has been in the United States attempting to explain the human rights aspects of the Hasba Act to US officials and to a "think tank". Durrani said, "I hope the US government will not oppose the Hasba Bill". He added that his meeting with the US think-tank had been successful.

Reporters' Testimony Sought In Intelligent Design Challenge

In Pennsylvania, a federal lawsuit brought on behalf of 8 families by the ACLU is pending challenging the policy of the Dover Area School District that requires reading ninth-graders a statement about intelligent design before teaching about evolution. (See prior postings 1 and 2) The Christian Post reports today on last Thursday's pre-trial hearing. At issue in the case is whether the school's district's policy was motivated by religion, or was purely educational. Attorneys for the school district, the Thomas More Law Center, have asked the judge to permit them to call as witnesses two reporters whose stories quoted school board members as making religious statements. They claim that reporters reporters, Heidi Bernhard-Bubb and Joe Maldonado, misrepresented what the board members said. U.S. District Judge John E. Jones III will review the reporters' notes to decide whether they should testify.