Religion Clause

Tuesday, May 12, 2009

Quebec Court Awards Damages To Raelians For Invasion of Privacy By Press

Yesterday's National Post reports on a decision by the Court of Quebec awarding $9000 in damages to two members of the Raelian movement who say their privacy was infringed by the undercover activities of a Sun Media Corp. reporter who infiltrated the sect. The two plaintiffs (a psychologist and a contractor) claim that they suffered injuries from their exposure as high-ranking Raelians. The lengthy decision in ville A (Québec) v. Corporation Sun Media, (Ct. of Que., March 31, 2009) (full text in French) (unofficial English translation) balances privacy rights with free press concerns. Describing the Raelian movement, the court says:

Rael, born in France, believes he is the result of the union between an Eloha, a member of an extra-terrestrial family, the Elohim, and a woman from Earth, and that after having received the good message from these which manifested themselves to him early in his adult life, he gave himself the mission to prepare the Elohim’s return on Earth and to create favourable conditions for humans of the Earth for them to give us eternal life.

The Raelian movement issued its own press release on the decision.

Monday, May 11, 2009

Privy Council Holds Trinidad & Tobago's Trinity Cross Unconstitutional

Great Britain's Privy Council Judicial Committee hears appeals of certain cases decided by Trinidad and Tobago's Court of Appeal. (Background.) In Sanatan Dharma Maha Sabha of Trinidad and Tobago Inc. v. The Attorney General of Trinidad and Tobago, (Privy Council, April 28, 2009) [Word doc), the Privy Council held that Trinidad and Tobago's Trinity Cross of the Order of Trinity, the country's highest award for meritorious service or gallantry, is unconstitutional under Trinidad and Tobago's Constitution as "an infringement of the rights and freedoms of members of the Hindu and Muslim communities in Trinidad and Tobago."

The decision reverses a 2007 judgement of the Trinidad and Tobago Court of Appeal holding that while the country's Trinity Cross award may be discriminatory against non-Christians, it was issued under letters patent that predate the current Constitution. Under Section 6 of the Constitution, pre-existing laws are not subject to attack for violating the Constitution's Declaration of Rights and Freedoms. (See prior posting.) The Privy Council concluded that the Letters Patent issued by the Crown is not the type of enactment or law that is protected against scrutiny under Trinidad and Tobago's Constitution. However the Privy Council also held that its judgment does not retroactively invalidate past awards of the Trinity Cross. Lord Mance issued a concurring judgment offering an alternative rationale for finding the award unconstitutional.

The Privy Council agreed to decide the case even though in 2008 Trinidad and Tobago changed the name of the award to The Order of the Republic of Trinidad and Tobago, changed the name of Order of the Trinity to The Distinguished Society of Trinidad and Tobago, and replaced the Cross with a Medal. Friday's London Times reported on the Privy Council decision.

Indiana Atheist Group Sues Over Rejection of Bus Ad

The Indiana Atheist Bus Campaign (IABC) was organized to eliminate the stigma of atheism. Building on campaigns in Canada and the UK, its goal was to place ads promoting its views on city busses. However the Bloomington (IN) public transit system rejected IABC's ad, which read "You Can Be Good Without God." The company based its refusal on the transit system's policy that excludes controversial public service announcements or ads on controversial public issues. (Atheist Bus Campaign press release.) On May 5, the ACLU, on behalf of IABC, filed a federal lawsuit challenging the transit company's ad policy as unconstitutionally vague and overbroad. The complaint (full text) in Indiana Atheist Bus Campaign v. Bloomington Public Transportation Corp., (SD IN, filed 5/5/09) seeks a declaratory judgment and an injunction. An ACLU May 7 press release (Word.doc) as well as IndyChannel on Friday reported on the lawsuit. IABC announced today that, in contrast to Bloomington, the Transpo bus system in South Bend (IN) will run their ad.

Yemen Begins Study of Religious School Curriculum; Plans Mosque Database

Yemen's Ministry of Endowment and Guidance has begun a review of the curriculum at the over 4,500 religious schools in the country. It plans to revise the curriculum where it is not compatible with Islamic teachings and to close schools that promote terrorism. Yesterday's Yemen Post reports that the Ministry is attempting to encourage moderate interpretations of Islam by preachers in mosques and is planning a nationwide database of mosques and those who preach and work in them. In an attempt to improve living conditions of mosque preachers, the Ministry is paying some 6,000 of them a monthly bonus equivalent to $50(US).

British Sikhs On Police Force Want Bulletproof Turbans

BBC News reported last Friday that in Britain, the newly-formed British Sikh Police Association is pressing for more research to develop a bullet-proof turban. Currently Sikhs on the police force cannot serve as firearms officers because regulations would require them to wear a helmet which does not fit over a turban. Research is underway to find bulletproof material that could be used to make turbans.

Malaysia Looks To Expand Its Islamic Finance Industry

Bloomberg reports today that Malaysia is taking several steps to expand the international reach of its Islamic banking industry. It is attempting to attract a large international bank that would provide services that comply with shariah law. Also, last month Malaysia's central bank raised the percentage of foreign ownership permitted in local Islamic banks. In addition, the government is considering a new issuance of $1 billion in global Islamic bonds. Malaysia’s government successfully raised $600 million in 2002 through the sale overseas of sukuk (Shariah-compliant bonds).

Sunday, May 10, 2009

Paper Questions Governmental Structure of Ave Maria, Florida

Beginning this week end, the Naples (FL) Daily News is running a lengthy 3-part investigative series titled Ave Maria: A Town Without a Vote. According to the article, when legislation creating the new town surrounding Catholic Ave Maria University was enacted, it also contained unusual provisions giving ongoing control to the town's founder, former Domino Pizza owner Tom Monaghan, and and to local landowner Barron Collier Cos. The paper reports: "The law makes landowners, not registered voters, the ultimate authority in Ave Maria. The law ensures Monaghan and Barron Collier Cos., as the largest landowners, can control Ave Maria’s government forever." The web page linking to the series also contains links to numerous primary source documents relating to the governmental structure of the town, and to its legality. [Thanks to Liam Dillon for the lead.]

In Kuwait, Islamists Challenge Women Candidates For Parliament

According to AFP, 19 women are running in Kuwait's May 16 Parliamentary elections-- all hoping to become the first women in Parliament. However at least one Islamic group has issued a fatwa declaring that voting for women candidates violates Islamic law. One of the leading women contenders is Aseel al-Awadhi. According to the Arab Times last week, the Thawabit Al-Ummah bloc has filed a lawsuit against her charging her with sacrilege. It claims she challenges the Islamic religion and has raised doubts about women wearing the hijab. The group wants an apology from those women who have questioned the hijab.

Recent Prisoner Free Exercise Cases

In Moriarty v. Rendell, 2009 U.S. Dist. LEXIS 37043 (MD PA, May 1, 2009), a Pennsylvania federal magistrate judge refused to grant a temporary restraining order against prison officials who insist that plaintiff, as a condition of parole, attend a religious-based 12-step alcohol abuse treatment program. The court concluded that plaintiff had not suffered the irreparable harm required for injunctive relief.

In Dawson v. Burnette, 2009 U.S. Dist. LEXIS 37729 (WD MI, May 4, 2009), a Michigan federal district judge adopted a magistrate's recommendations that a Buddhist prisoner be permitted to proceed with his 1st Amendment damage claim alleging that he was denied a vegan diet, but that his claims under RLUIPA be dismissed and his claims for declaratory and injunctive relief be dismissed as moot.

In Mitchell v. Hamlet, 2009 U.S. Dist. LEXIS 37567 (ND CA, April 15, 2009), in a screening hearing, the court permitted plaintiff to proceed with his claims that he was denied a Halal diet, the ability to wear a beard, the ability to group-worship, the ability to use earned time to attend prayer services, and that he was limited to a single vendor in purchasing religious items. He also claims he was limited in the amount of prayer oils that he can order, and that no Muslim chaplain or large prayer rug is available to Muslim inmates.

In Boyd v. McGuire, 2009 U.S. Dist. LEXIS 38026 (D NJ, May 5, 2009), a New Jersey federal district court permitted a Muslim jail inmate to proceed with his equal protection claim that Muslim prisoners receive only a vegetarian diet, while Jewish prisoners receive a kosher diet that includes meat. The court dismissed his 1st Amendment claim, but with leave to amend and refile. It also dismissed his claim for prospective injunctive relief because he was about to be transferred to a different facility.

In Davis v. Hawaii, 2009 U.S. Dist. LEXIS 38091 (D HI, May 4, 2009), a Hawaii federal magistrate judge transferred venue to Arizona in a case alleging that a Hawaii prisoner incarcerated in Arizona was prevented him from practicing his Native Hawaiian religion.

Obama Will Address Muslim World From Egypt June 4

Yesterday's Haaretz reports that President Obama will deliver an important speech on U.S. relations with the Muslim world in Egypt on June 4. During the presidential campaign, Obama promised that early in his presidency, he would deliver a major address to Muslims from a Muslim capital. The speech was announced at Friday's White House press briefing (full text), and led to this exchange between a reporter and Press Secretary Robert Gibbs:

Q: ... there are a lot of Muslims who look at the leadership of Egypt warily and consider it to be exactly the problem with leaders in the Muslim world.... Is it not possible that this is a bad selection?

MR. GIBBS: No. I think, as I mentioned earlier, ... in many ways, this is the heart of Arab world. And ... this isn't a speech to leaders. This is a speech to many, many people and a continuing effort by this President and this White House to demonstrate how we can work together to ensure the safety and security and the future well-being, through hope and opportunity, of the children of this country and of the Muslim world....

British Muslim Police Chef Objects To Requirement He Cook Pork

Abu Dhabi's The National reported yesterday on a case about to be heard by an employement tribunal in Britain. In London, Hasanali Khoja, a Muslim, is charging the Metropolitan Police Department with religious discrimination. Originally hired as a catering manager, Khoja's duties did not involve actually cooking food. However when he was transferred to police headquarters in west London, he was expected to cook pork products, and when he refused he was placed on paid special leave for a year. His law suit claims that his religious beliefs should have been accommodated. The only accommodation his west London supervisor suggested was that he wear gloves while handling the pork products. Right wing political parties such as the British National Party have seized on this case to object to "the madness of multiculturalism."

Saturday, May 09, 2009

Pope, In Jordan, Speaks On Manipulation of Religion

On the first leg of his trip to the Middle East, Pope Benedict XVI today was in Jordan. Both Zenit and the New York Times report on his interesting speech regarding ideological manipulation of religion delivered to Muslim religious leaders after his visit to the King Hussein bin Talal Mosque and the adjacent Hashemite Museum. In his remarks (full text), he said in part:

Certainly, the contradiction of tensions and divisions between the followers of different religious traditions, sadly, cannot be denied. However, is it not also the case that often it is the ideological manipulation of religion, sometimes for political ends, that is the real catalyst for tension and division, and at times even violence in society? In the face of this situation, where the opponents of religion seek not simply to silence its voice but to replace it with their own, the need for believers to be true to their principles and beliefs is felt all the more keenly. Muslims and Christians, precisely because of the burden of our common history so often marked by misunderstanding, must today strive to be known and recognized as worshippers of God faithful to prayer ... and ever mindful of the common origin and dignity of all human persons...The resolve of Jordanian educators and religious and civic leaders to ensure that the public face of religion reflects its true nature is praiseworthy.

Obama Compromises On End To D.C. School Vouchers

In the Omnibus Appropriations Act passed by Congress in March and signed by the President, Congress effectively eliminated the controversial D.C. Opportunity Scholarship school voucher program after next year. Over half of the students receiving vouchers attend religious-- mostly Roman Catholic-- schools. (See prior posting.) The Washington Post reported on Thursday, however, that President Obama is now supporting a compromise with supporters of the voucher program. He will ask Congress to appropriate funds so that all 1,716 children currently in the District's voucher program will continue receiving grants until they graduate high school. However no new participants will be added. Sunday's Washington Post carries assessments from 15 political and education experts on Obama's decision.

Two Amish Families Held In Contempt Over Sewage Code Compliance

In Ebensburg, Pennsylvania, at a contempt hearing on Friday, a state court judge ordered the homes of two Amish families padlocked, and the occupants evicted, until they complied with court orders to bring the homes into compliance with the county's building and sewage codes. The Altoona Mirror reports that the judge gave the families-- who are members of the conservative Swartzentruber Amish sect--until Monday morning to remove their belongings. The court had issued a preliminary injunction in February ordering the families to comply. However defendants say compliance would violate their religious beliefs. (See prior posting.)

Activists Will File Criminal Complaint Against Pope In Israel

As Pope Benedict XVI arrives in Israel Monday on his trip to the Middle East, two activists plan to file a criminal complaint against him in the Jerusalem Magistrate's Court charging him and others with possessing stolen goods, receiving items considered stolen and receiving goods that were obtained through criminal means. According to yesterday's Arutz Sheva, the complaint alleges that archaeological and scholarly treasures that belong to the Jewish people are being held by the Vatican in Rome. At issue are a number of relics from the Second Temple, destroyed in 70 C.E. The items-- including the 7-branch golden menorah-- were allegedly taken to Rome by Titus who plundered the Temple. The complaint also covers some 7500 books in the Vatican library taken there hundreds of years later.

British Court Upholds Ban On Hindu Funeral Pyres

Yesterday a British High Court rejected a challenge by a 70-year old Hindu man living in Britain to the country's ban on open-air funeral pyres used in traditional Hindu funerals, saying it must respect the political process. India Times and the London Telegraph report that the lawsuit, brought by Davender Ghai, founder of the Anglo-Asian Friendship Society, was a test case for the British Hindu community. The suit claimed that Britain's Cremation Act 1902 and the Cremation Regulations 2008 violate Articles 8 (respect for private and family live) and 9 (freedom of thought, conscience and religion) of the European Convention on Human Rights. The court, however, concluded that the ban was justified because others in the community would find the use of pyres to be offensive. The court gave Ghai permission to take the case to the Court of Appeal. (See prior related posting.)

Court Hears Petition To Force Teenager To Have Chemo Over Religious Objections

Today was the second day of a trial in a Minnesota state court on a petition filed by state child protection workers who want to force 13-year old Daniel Hauser to have chemotherapy and radiation treatments for his Hodgkins lymphoma-- a treatment that results in 95% survival rates. Daniel changed to complementary medicine, including dietary changes and ionized water, after suffering side effects from a first round of chemotherapy. Yesterday's Argus Leader reports on the background of the case, while AP and Fox News report further on the trial proceedings. The teenager says that he is a medicine man and church elder in the Native American religion of the Nemenhah band of Indians from Minnesota. While the family is not of Native American background, the boy and his mother were adopted into the band. Daniel says he will resist any attempt to administer chemotherapy to him, and his doctor says it would be difficult to forcibly administer it. However physicians say the boy is likely to die without the treatment.

Friday, May 08, 2009

6th Circuit Defines Test For Religious Accommodation Claim Against Union

Title VII of the 1964 Civil Rights Act prohibits employment discrimination by labor unions as well as by employers. In Reed v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, (6th Cir., May 7, 2009), the U.S. 6th Circuit Court of Appeals faced the question of how to apply to unions the religious accommodation standards it has developed in employer cases. In cases charging an employer with failure to accommodate an employee's religious beliefs, the employee must prove a prima facie case by showing he was discharged or disciplined for failing to comply with an employment requirement that conflicts with his religious beliefs. Only then does the issue of the reasonableness of any accommodation come into play.

In Reed, an employee who had religious objections to union membership was accommodated by allowing him to contribute the full amount of union dues to charity. The employee, however, argued that he should be allowed to contribute to charity $10 per month less-- the smaller amount that equals the agency fee charged by the union in lieu of dues to those who object to the union's political stances. The lead opinion written by Judge Batchelder held that the employee, Jeffrey Reed, had suffered no discipline or adverse employment action other than the accommodation itself. Thus he had not proven a critical element of his claim.

Judge Guy, concurring in the result, concluded that Reed's claim fails because the accommodation offered by the union was reasonable. Judge McKeague, dissenting, argued that Reed had established his prima facie case by showing that he was subjected to adverse employment action. He was required to pay more as a religious objector than he would have had to pay as a secular objector to union membership. Judge McKeague went on to hold that the accommodation offered by the union was unreasonable and discriminatory. [Thanks to Jonathan Adler via Joe Slater for the lead.]

Under Pressure, National Mock Trial Group Agrees To Accommodate Sabbath Needs

Under intense pressure, the National High School Mock Trial Competition yesterday, at the last minute, agreed to a compromise that will accommodate the Sabbath observance needs of the Jewish team members from Maimonides High School of Brookline, Massachusetts in this week end's tournament. (See prior posting.) JTA reported that the team will be permitted to start the competition Thursday afternoon and, if Maimonides reaches the finals, the start of the championship round will be delayed from 5 p.m. until 9:30 p.m., after sundown, on Saturday. Maimonides had originally wanted all of its rounds scheduled on Thursday and Friday-- a change that organizers said was unreasonable.

This year's competition is being held in Atlanta, hosted by the Georgia State Bar. ADL yesterday said the schedule change came only after Judge Doris Downs, Chief Judge of Fulton County (GA) Superior Courts, said the competition could not use Fulton County courtrooms if all schools could not fully participate. Also, ADL Southeast Regional Board Chair Elizabeth Price tendered her resignation as a member of the Georgia State Bar's board of governors when the Association refused to support accommodation for the Jewish school. Adding even further pressure, according to a release from the Orthodox Union, were questions raised by Georgia Governor Sonny Purdue's office and questions raised by the Civil Rights Division of the US Department of Justice as to whether Georgia State Courts could receive federal grant funds if they discriminated. Today's Fulton County (GA) Record also has coverage of Judge Downs' role in obtaining the changed schedule.

UPDATE: Here is the competition organizers' side of the dispute in a press release from NHSMTC. It says that the Maimonides team had earlier accepted a compromise under wihich it would merely not participate in Saturday rounds. The organizers say they also provided other accommodations involving more hotel space and dietary considerations.

Settlement In Case Challenging NC Park Speech Rule

Liberty Counsel announced yesterday that a settlement has been reached with the North Carolina Division of Parks and Recreation in a suit challenging the constitutionality a rule that requires a permit for any meeting, exhibition, ceremony, or speech in a state park. The suit was filed after several members of Grace Baptist Church of Wilson (NC) who were picnicking at Fort Macon State Park were told they needed a permit when they shared their religious beliefs with other park visitors. (See prior posting.) Under the terms of the settlement, signed a day before a scheduled hearing on an injunction, the state will institute a formal rule making process to adopt new rule whose terms have been negotiated with Liberty Counsel. The state will also pay attorney’s fees and costs.

Oklahoma Legislature Authorizes 10 Commandments At Capitol

AP reported yesterday that the Oklahoma House of Representatives, by a vote of 83-2, has passed HB 1330, the Ten Commandments Monument Display Act [full text, Word doc]. The bill, previously passed by the Senate, now goes to Gov. Brad Henry for his signature. It provides in part:

The State Capitol Preservation Commission ... is hereby authorized to ... arrange for the placement on the State Capitol grounds of a suitable monument displaying the Ten Commandments. The ... monument shall use the same words used on the monument at issue in Van Orden v. Perry, that the United States Supreme Court ruled constitutional. This monument shall be designed, constructed, and placed on the Capitol grounds by private entities at no expense to the State of Oklahoma....

In the event that the legality or constitutionality of the Ten Commandments monument is challenged in a court of law, the Oklahoma Attorney General or Liberty Legal Institute is hereby authorized to prepare and present a legal defense of the monument.

The placement of this monument shall not be construed to mean that the State of Oklahoma favors any particular religion or denomination thereof over others, but rather will be placed on the Capitol grounds where there are numerous other monuments.

The family of Rep. Mike Ritze, sponsor of the bill, will pay the $10,000 cost of the monument.

European Parliament Recommends Directive Protecting Kosher Slaughter

According to a European Parliament press release, yesterday the European Parliament approved a new directive on protection of animals at the time of slaughter, with an exemption for slaughter according to religious ritual. (Full text of resolution, Word doc, scroll to pg. 114). The release explains:

MEPs approve the principle that animals must be slaughtered using only methods that ensure death instantly or after stunning, except in the case of religious ritual, for which they called for the current blanket exemption to be preserved rather than allowing for exemptions to be decided at national level.

EJP reports that the proposal now goes for a vote by the EU Council of Ministers, scheduled for next month. Currently kosher slaughtering of animals is banned in Sweden, Norway, Finland, Latvia, Estonia and Lithuania, while Switzerland permits it only for poultry. The European Jewish community is concerned that the impact of the bill could be undercut because a vote is scheduled next month by the Council of Ministers on whether even animals killed in religious rites are required to be stunned before slaughter. Kosher slaughtering does not permit stunning.

Parents Sue For Records of Lesbian Minister's Talk At High School

Pacific Justice Institute announced yesterday that it had filed suit on behalf of more than 20 California parents against the Castro Valley (CA) Unified School District seeking to force the school board to comply with a public records request. At issue is an attempt by parents to obtain all records relating to a presentation made in Castro Valley High School math and science classes by a lesbian minister. Students say the minister spoke about her lesbian wedding and and other events in a presentation titled "Out for Good."

Thursday, May 07, 2009

President Signs National Day of Prayer Proclamation

Today President Obama signed a Proclamation (full text) declaring May 7, 2009 as a National Day of Prayer, as required by Public Law 100-307 (36 USC Sec. 119). The Proclamation reads in part:

Throughout our Nation's history, Americans have come together in moments of great challenge and uncertainty to humble themselves in prayer.... It is in that spirit of unity and reflection that we once again designate the first Thursday in May as the National Day of Prayer.

The White House released a photo of the President signing the Proclamation, with Joshua DuBois, Director of the White House Office for Faith-Based and Neighborhood Partnerships, looking on.

At Tuesday's White House Press Briefing (full text), this exchange between reporters and Press Secretary Robert Gibbs took place:

Q: Robert, can I ask about Thursday? The National Day of Prayer -- the President, as I understand it, is going to sign a proclamation but there's not going to be a public ceremony, as the Bush administration did. Why the difference in approach? Does the President have a different feeling about this event than his predecessor?
MR. GIBBS: No, I mentioned, I think when I was asked about this last week, that prayer is something that the President does every day. I think, given some of the issues that you all have denoted today, it might be a healthy thing. But we're doing a proclamation, which I know that many administrations in the past have done.
Q: The previous administration had a ceremony with prayers and speeches and such. Does he think -- the current President think that that was politicized in some fashion?
MR. GIBBS: No, I'm not going to get into that. Again, I think the President understands, in his own life and in his family's life, the role that prayer plays. And I would denote that administrations prior to the past one did proclamations. That's the way the President will publicly observe National Prayer Day. But as I said, privately he'll pray as he does every day.
Q: Is he going to pray at the church that he calls his own?
MR. GIBBS: I'm sorry --
Q: Will he soon pray in a church that he calls his own?
MR. GIBBS: He may. Amen. (Laughter.)

[See prior related posting.]

Controversy Surrounds Today's National Day of Prayer

Today is National Day of Prayer, and the the White House's decision not to host a formal event marking the occasion continues to generate controversy. As reported previously, the President will issue a Proclamation marking the day, but will not be involved beyond that. The National Day of Prayer Task Force holds its event, led by Beth Moore and Shirley Dobson, at 9:00 a.m. in the Cannon House Office Building on Capitol Hill. Liberty Counsel has announced that:

following the National Day of Prayer Service, members of Congress and leaders of faith-based groups will hold a bipartisan press conference to affirm America's Christian heritage, as outlined in America’s Spiritual Heritage Resolution (H.Res. 397), and to address President Obama's recent statement, made while visiting Turkey, that "we do not consider ourselves a Christian nation or a Jewish nation...."

H. Res. 397 is in committee and has not as of this time been voted on by the House. Yesterday's Washington Times quotes several critics of President Obama. Shirley Dobson, chairwoman of the National Day of Prayer Task Force, said: "At this time in our country's history, we would hope our president would recognize more fully the importance of prayer." Wendy Wright, president of Concerned Women for America, added: "For those of us who have our doubts about Obama's faith, no, we did not expect him to have the service. But as president, he should put his own lack of faith aside and live up to the office."

Meanwhile the same Washington Times article reports that neither President Obama nor other top administration officials will attend the 6th annual National Catholic Prayer Breakfast scheduled for Friday. Joe Cella, a spokesman for the Catholic event, said that while the President would have been welcome to attend, he would not have been permitted to speak because of a 2004 statement from the U.S. Conference of Catholic Bishops (full text) calling on Catholic groups to avoid honoring politicians who oppose Catholic teachings on human life. At Mirror of Justice blog, Rob Vischer questions whether this was the result the Bishops intended by their 2004 directive. Keynote speaker at the Catholic breakfast will be U.S. Supreme Court Justice Antonin Scalia.

Maine Is 5th State To Permit Gay Marriage; New Hampshire Bill Sent To Governor

Maine yesterday became the 5th state to authorize same-sex marriage as Gov. John Baldacci signed LD 1020, "An Act to End Discrimination in Civil Marriage and Affirm Religious Freedom." The Brunswick (ME) Times Record reports that the bill moved quickly through the state legislature. Last Thursday the State Senate approved it by a vote of 21-14, the House followed on Tuesday with an 89-57 vote, and the Senate gave its final approval yesterday by a vote of 21-13. While authorizing same-sex marriage, the new law goes on to provide:

This Part does not authorize any court or other state or local governmental body, entity, agency or commission to compel, prevent or interfere in any way with any religious institution's religious doctrine, policy, teaching or solemnization of marriage within that particular religious faith's tradition as guaranteed by the Maine Constitution, Article 1, Section 3 or the First Amendment of the United States Constitution. A person authorized to join persons in marriage and who fails or refuses to join persons in marriage is not subject to any fine or other penalty for such failure or refusal.

AP reports that opponents of the new law say they will challenge it through a statewide referendum. Seacoast Online says that Rev. Bob Emerich of the Jeremiah Project in Plymouth (ME) will be working with the Portland Catholic diocese and other groups to obtain the 55,087 signatures needed to get a referendum measure on the statewide ballot.

Later yesterday, the New Hampshire legislature also passed a bill permitting same-sex marriage. (CNN). HB 436 provides however that:

Members of the clergy as described in RSA 457:31 or other persons otherwise authorized under law to solemnize a marriage shall not be obligated or otherwise required by law to officiate at any particular civil marriage or religious rite of marriage in violation of their right to free exercise of religion protected by the First Amendment to the United States Constitution or by part I, article 5 of the New Hampshire constitution.

The state Senate last week approved the bill by a vote of 13-11. Yesterday the House approved it by a vote of 178-167. The Concord Monitor says that it is unclear whether or not Gov. John Lynch will veto the bill. In the past he has said that his personal views are opposed to same-sex marriage.

Obama's Mother Was Baptized Posthumously By Mormons

America Blog and the Provo (UT) Daily Herald reported this week that during the 2008 Presidential campaign, someone in the Mormon Church in Provo, Utah posthumously baptized Stanley Ann Dunham, Barack Obama's mother. Time and Seasons explains that the Church has tried to limit baptisms by proxy except where requested by direct descendants. Dunham's name was apparently submitted to the church's FamilySearch.org genealogical site multiple times by at least three different people in three states. The proxy rites were performed in June of 2008, presumably without the knowledge of anyone in the Obama family. Politico quotes LDS spokeswoman Kim Farrah who said in an e-mail statement: "The offering of baptism to our deceased ancestors is a sacred practice to us and it is counter to Church policy for a Church member to submit names for baptism for persons to whom they are not related. The Church is looking into the circumstances of how this happened and does not yet have all the facts. However, this is a serious matter and we are treating it as such."

According to Mormon beliefs, after vicarious baptism, the deceased can choose whether or not to accept the ordinances. (About.com.) In the past, Mormon attempts to posthumously baptize Holocaust victims has generated tensions between the LDS Church and the Jewish community. (AP, 11/11/2008).

Hawaii Legislature Passes Resolution Proclaiming "Islam Day"

Hawaii's House and Senate have passed and sent to the governor for signature House Concurrent Resolution 100, declaring September 24, 2009 as "Islam Day" in Hawaii "to recognize the rich religious, scientific, cultural, and artistic contributions Islam and the Islamic world have made since their founding." The Senate vote yesterday approving the measure was 22-3. AP reports that the two Republicans opposing the Resolution were concerned about radical Islamists and said other religions had no special day honoring them. The one Democrat voting against it was concerned about church-state separation. Some 13 "Whereas" clauses in the Resolution stress the contributions and values of Islam.

Tentative Ruling By California Judge Goes Against Break-Away Episcopal Diocese

In Fresno, California, a Superior court judge has issued a tentative ruling in Diocese of San Joaquin v. Schofield, (Super. Ct., May 4, 2009) [scroll to pg. 48]. He proposed granting summary judgment rejecting the validity of amendments to the articles of incorporation of the corporation sole, The Protestant Episcopal Bishop of San Joaquin. Those amendments purported to eliminate the requirement that any new bishop be approved by Episcopal church bodies and ordained by 3 Episcopal bishops. The diocese attempted to implement the amendment to facilitate its break off from the Episcopal Church and its affiliation with the more conservative Province of the Southern Cone. Holding that state courts must defer to the highest ecclesiastical authority of an hierarchical church on questions of religious doctrine, the court concluded that civil courts must recognize Bishop Jerry Lamb who was installed by the Episcopal Church as the Bishop of San Joaquin after Bishop John-David Schofield broke way. It similarly held that the amendment to change the name of the corporation to The Anglican Bishop of San Joaquin was ultra vires and void.

According to yesterday's Religious Intelligence, the court held a hearing on May 5 for the parties to respond to the tentative ruling. In the hearing, attorneys for the break-away diocese argued that summary judgment is improper because there is a factual dispute about whether the Episcopal Church is "hierarchical." They also claim that the church failed to give proper notice of the meeting at which Lamb was elected as the continuing bishop. The Episcopal Church responded that the court lacks authority to review its internal procedures. Virtue Online also reports on the court's tentative ruling.

Legislative Invocations Reprinted By Paper

Yesterday's Oklahoma Gazette reprints at length excerpts from invocations and remarks by clergy offered in the Oklahoma House of Representatives this legislative session. Each week a state representative invites a member of the clergy to be pastor of the week. Usually they offer a prayer on Monday through Wednesday, and on Thursday give short remarks which can be reprinted in the House Journal if requested by the sponsoring member. From Bible verses, to humor, to inspiration, the prayers and remarks cover a wide range of topics.

Pontifical Academy of Social Sciences Focuses On Human Rights

The 15th Plenary Session of the Pontifical Academy of Social Sciences is meeting in the Vatican through Tuesday. The meetings this year are focused on Catholic social doctrine and human rights. Pope Benedict XVI addressed the group (full text of remarks). He said in part:

In the middle of the last century, after the vast suffering caused by two terrible world wars and the unspeakable crimes perpetrated by totalitarian ideologies, the international community acquired a new system of international law based on human rights....

The Church's action in promoting human rights is therefore supported by rational reflection, in such a way that these rights can be presented to all people of good will, independently of any religious affiliation they may have. Nevertheless..., human reason must undergo constant purification by faith, insofar as it is always in danger of a certain ethical blindness caused by disordered passions and sin; and, on the other hand, insofar as human rights need to be re-appropriated by every generation and by each individual....

This perspective draws attention to some of the most critical social problems of recent decades, such as the growing awareness - which has in part arisen with globalisation and the present economic crisis - of a flagrant contrast between the equal attribution of rights and the unequal access to the means of attaining those rights. For Christians ... it is a shameful tragedy that one-fifth of humanity still goes hungry. Assuring an adequate food supply, like the protection of vital resources such as water and energy, requires all international leaders to collaborate in ... promoting solidarity and subsidiarity with the weakest regions and peoples of the planet as the most effective strategy for eliminating social inequalities ... and for increasing global security.

Mary Ann Glendon, president of the the Academy, delivered remarks (full text) upon being received by the Pontiff during the plenary session. After focusing on the Church's "long engagement with human rights," she also commented that: "in today's world, ironically, many threats to the dignity of the person have appeared in the guise of human rights."

Wednesday, May 06, 2009

Judge McConnell, 1st Amendment Expert, Will Move From 10th Circuit To Stanford

Press releases yesterday from Stanford Law School and the U.S. 10th Circuit Court of Appeals announced that Circuit Judge Michael W. McConnell will resign from the court to join Stanford Law School's faculty as director of the the Stanford Constitutional Law Center. McConnell is widely recognized as an expert on 1st Amendment religious freedom issues. Before being appointed to the 10th Circuit, he served on the faculties of University of Chicago and University of Utah law schools. (See prior related posting.)

DC Council, Over Religious Objections, Votes To Recognize Gay Marriages From Elsewhere

According to the Washington Post, over the opposition of a number of local ministers and others, the D.C. City Council yesterday voted 12-1 to recognize gay marriages performed elsewhere. The sole vote against the bill was former D.C. Mayor Marion Barry, who said he decided on his vote after prayer and discussion with religious leaders. He says his vote represents his constituents' wishes. (US News.) If, as expected, Mayor Adrian M. Fenty signs the bill, Congress will then have 30 days to pass, and send to the President for his signature, a joint resolution disapproving the law. (DC Home Rule Act, Sec. 602(c)). Immediately after the Council vote, a crowd of opponents, led by local ministers, began shouting that new Council members were needed. Security guards had to be called to restore order. If this bill is approved by Congress, it is expected that Council will later move to authorize gay marriages to be performed in the District.

Non-Muslims In Northwest Pakistan Dislocated By Taliban

While the press has focused extensively on demands of Islamists in Pakistan's North West Frontier Province for the institution of Sharia law (see prior posting), less attention has been given to the plight of non-Muslim minority religions in the area. Dawn, however, reported yesterday on the visit of Federal Minister for Minorities Affairs Shahbaz Bhatti to 128 displaced Sikh families who have taken refuge Gurdwara Panja Sahib in the town of Hasan Abdal. Addressing a press conference, Bhatti said: "The present government believes in the principles of tolerance, human equality and peaceful co-existence." He condemned the demand by local Taliban elements that non-Muslim minorities pay a Jizya (tax), and announced a relief package for non-Muslim families who have been dislocated in Swat, Buner and Orakzai Agency.

HUD Swears In Assistant Secretary For Fair Housing

The U.S. Department of Housing and Urban Development announced that John Trasviña was sworn in Monday as Assistant Secretary for Fair Housing and Equal Opportunity. In that position, he heads the office that is responsible for enforcing federal laws assuring equal access to housing, including the Fair Housing Act that bars religious discrimination in the sale, renal and financing of residential housing. Trasviña previously served as President and General Counsel of the Mexican American Legal Defense and Educational Fund. HUD also swore in two other officials on Monday: the General Counsel, and the Assistant Secretary for Congressional and Intergovernmental Affairs.

UN Special Rapporteur Evaluates Religious Freedom In Serbia

Yesterday, United Nations Special Rapporteur on freedom of religion or belief, Asma Jahangir, completed a six-day visit to Serbia. UN News Centre reports that Jahangir gave a mixed review to developments in the country. She praised the situation in a number of smaller municipalities that are multi-ethnic, multi-religious and multi-linguistic, and which seem to enjoy an atmosphere of religious tolerance. However, she criticized a 2006 religion law that requires registration of churches and religious communities, and which distinguishes between traditional and non-traditional religions. (See prior posting.) Jahangir will present her findings to the U.N. Human Rights Council next year.

Cert. Petition To Be Filed In Episcopal Church Property Dispute

Yesterday, St. James Anglican Church in Newport Beach, CA announced that it will file a petition for certiorari to seek U.S. Supreme Court review of the California Supreme Court's decision in the Episcopal Church Cases. In the case, the California high court held that the building and property of St. James Parish belongs to the Episcopal Church, not the parish, once the parish broke away and affiliated with the more conservative Anglican Church of Uganda. (See prior posting.) Apparently the major issue that will be raised by St. James is the validity of California's statutory provision permitting a trust to be imposed on assets of a religious corporation by the governing instruments of a general church of which the corporation is a member. (Cal. Corp. Code Sec. 9142.)

UPDATE: Here is the petition for certiorari that was filed on June 24, 2009.

Compliance, Or Not, With Religious Customs Relevant To Suicide Finding

In Green v. William Penn Life Insurance Company of New York, (NY Ct. App., May 5, 2009), New York's high court upheld a trial court's conclusion that Alan Green had committed suicide and his widow was not entitled to receive the proceeds of a half-million life insurance policy. The policy provided that if the insured died by suicide within 2 years of issuance of the policy, the only death benefit would be the premiums paid. The high court said that the presumption against suicide requires the fact finder to conclude that suicide was highly probable. It does not preclude such a finding merely because there is also evidence that would support a contrary finding. Among the evidence cited by the court was the fact that Green's widow "refused to permit an autopsy or a toxicological examination of his body, saying that such intrusions were forbidden by Jewish religious law, but she ordered the body cremated in violation of that religious prohibition." [Thanks to Y.Y. Landa for the lead.]

Tuesday, May 05, 2009

Al Jazeera Video Shows U.S. Soldiers Who Want To Proselytize In Afghanistan

Al Jazeera yesterday reports on a video, filmed a year ago, showing evangelical Christian soldiers at Bagram air base in Afghanistan with Bibles printed in Pashto and Dari that they hoped to distribute to local residents. The Bibles were sent to a serviceman by his church in the U.S., according to AlterNet. Apparently none were actually distributed. In the video, Lieutenant-Colonel Gary Hensley, chief of the U.S. military chaplains in Afghanistan, tells soldiers: "The special forces guys -- they hunt men basically. We do the same things as Christians, we hunt people for Jesus. We do, we hunt them down."

While General Order No. 1 issued by the U.S. military's central command specifically bans "proselytising of any religion, faith or practice, "Sergeant Jon Watt tells a group of soldiers: "you can't proselytise, but you can give gifts." In a second report today, Al Jazeera says that the U.S. military has confiscated the Bibles and reprimanded the soldiers who appear in the video. Col. Greg Julian told Al Jazeera: "Most of this is taken out of context ... this is irresponsible and inappropriate journalism.... There is no effort to go out and proselytise to Afghans." [Thanks to Scott Mange for the lead.]

French Trial of Gang Members Accused of Anti-Semitic Torture Is Closed To Press

In France, a court has made the controversial decision to bar journalists from the trial of gang members accused of kidnapping and torturing to death a 23-year-old French Jew, Ilan Halimi. (Background.) A report yesterday by JTA says that Halimi's family and the French Jewish community want the trial opened in order to raise awareness of anti-Semitism in France. However, because two of the 27 defendants were juveniles in 2006 when the crimes were committed, French law permits the trial to be closed. Apparently members of the Barbarians gang targeted Halimi because they believed Jews would be worth a large ransom. One of the questions in the trial of the gang's leader, Youssour Fofna, is whether this constitutes a crime based on Halimi's religion or ethnicity. Author Alexandre Lévy says: "Politically it's very delicate in France to be the first to talk about anti-Semitism. It's like the nuclear button."

"Joe the Plumber" Gives His Views on Religion and Politics

Monday's Christianity Today carries an interview with Samuel Wurzelbacher , who became known as "Joe the Plumber"-- the symbol of the average American-- in the 2008 Presidential campaign. Wurzelbacher answers questions regarding his Christian faith and his view of the future of the Republican Party. After saying that "the Founding Fathers based the Constitution off of Christian values," Wurzelbacher opines that the Republican Party is not reaching out enough to evangelicals. His favorite Christian leader is James Dobson. He says: "When politicians start talking about being a Christian, I just worry, because a lot of them don't really follow through.... I would love to hear our leaders actually check with God before he does stuff." On whether he plans to run for political office: "Not right now. God hasn't said, 'Joe, I want you to run.'"

New Website On "Islamic Lawfare"

The Middle East Forum today announced the launch of a new website, The Legal Project. The website features primary source material and analysis on "Islamic lawfare," described as:

attempts by supporters of radical Islam to suppress free discourse on Islam and terrorism by (1) exploiting Western legal systems and traditions and (2) recruiting state actors and international organizations such as the United Nations.

I have added the website to the "Resources" section of the Religion Clause sidebar.

Turkish Author Tried In Abstentia For Insulting Religious Values

AFP today reports that in Istanbul, Turkish author Nedim Gursel goes on trial in abstentia charged under Art. 216 of the Turkish Penal Code with insulting the religious values of the people. The charges grow out of Gursel's novel "The Daughters of Allah." Gursel currently lives in France. Hurriyet reports that a Religious Affairs Directorate committee concluded that the book "was insulting and sarcastic, humiliating Allah, its prophets, divine religions, worshipping, holy books and religious principles. This cannot be explained in the scope of freedom of thought or criticism."

Leaders In Hungary Propose Ban on Holocaust Denial and Hate Speech

In Hungary, Ildiko Lendvai, leader of the governing Socialist Party, told a May Day celebration last Friday that her party plans to propose a constitutional amendment to ban Holocaust denial and hate speech. MTI reports that the move follows a Holocaust denial demonstration held in Budapest two weeks ago by right-wing organizations including the Magyar Garda Movement.

Claims By Chuch Founder Against City Employees Dismissed

In Kovalev v. City of Philadelphia, (ED PA, April 29, 2009), a Pennsylvania federal district court dismissed a series of constitutional claims brought by Sergei Kovalev against the city and several city employees challenging inspection attempts and the refusal of a building permit for a small additional structure on property that contained his home as well as operations of his "International Church of Eternal Revival ." In the lawsuit, filed pro se, Kovalev claimed the inspection was instigated by a state senator whose office was nearby and that he is a victim of discrimination because he is a foreign born U.S. citizen from Eastern Europe. He says any construction was "done in an act of worship to God." The court found a lack of evidence to support his 1st, 4th and 14th Amendment claims and held that individual defendants had qualified immunity.

Monday, May 04, 2009

Cert. Denied In Challenge To Marijuana Laws

The U.S. Supreme Court today denied certiorari in Olsen v. Holder, (Docket No. 08-777) (Order List.) In the case (captioned below as Olsen v. Mukasey) the U.S. 8th Circuit Court of Appeals held that plaintiff's attempt to enjoin enforcement against him of the federal and Iowa's controlled substances acts should be dismissed. Plaintiff, a member of the Ethiopian Zion Coptic Church, uses marijuana for sacramental purposes. (See prior posting.) Meanwhile, in a different approach, plaintiff has attempted in both state and federal forums to require marijuana to be removed as a Schedule I controlled substance now that a number of states recognize its legitimacy for medical use. The attempts have met varying degrees of success. (See prior posting.)

Controversy Continues Over UNLV's Proposed Policy On Bias Incidents

At the University of Nevada Las Vegas, faculty concern continues over the University's proposed Policy on Bias Incidents and Hate Crimes. The draft defines a "bias incidents" as:

verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias based on actual or perceived race, ethnicity, color, religion, creed, sex (including gender identity or expression, or a pregnancy related condition), sexual orientation, national origin, military status or military obligations, disability (including veterans with service-connected disabilities), age, marital status, physical appearance, political affiliation, or on the basis of exercise of rights secured by the First Amendment of the United States Constitution.... Bias incidents do not include statements made on controversial issues that serve to promote intellectual inquiry into those issues. While such statements and related discussion can cause feelings of discomfort, a "reasonable person" can and must differentiate these statements from bias incidents.

The draft encourages reporting of bias incidents to UNLV police. After the ACLU of Nevada criticized the draft as an unconstitutional infringement on free speech, Nevada's chancellor of public higher education called for the policy to be rewritten. (Las Vegas Sun, 4/27). But now faculty are concerned that UNLV President David Ashley chose Christine Clark, the vice president of diversity and inclusion, to head a task force to review the draft. She helped develop the initial draft, and critics say she ignored their concerns at that time. (Las Vegas Sun, 5/4). The policy was drafted in response to a call by the state Board of Regents last year for all state schools to develop policies on bias incidents. (Las Vegas Sun, 4/25.)

Pakistan Islamists Reject Sharia Court Set Up By Government In Peace Deal

Last month, the government of Pakistan entered an agreement with Taliban insurgents to set up Islamic courts in the Malakand Division of the North West Frontier Province in order to end fighting there. (See prior posting.) Voice of America reports that on Saturday, Pakistani authorities implemented the agreement by setting up an Islamic appellate court and appointing two senior judges to it. However Sufi Mohammad who mediated the agreement rejected the announcement saying that the government is not competent to appoint Islamic judges without first consulting him as senior cleric. He also said the government's ongoing offensive against the Taliban was to have been halted before the court was set up. Taliban say they will not lay down their arms until those conditions are met. The government says that private individuals cannot be involved in process of appointing judges.

Pope Travels To Jordan, Israel, West Bank At End of This Week

Pope Benedict XVI will be visiting the Middle East beginning the end of this week. He will be in Jordan from May 8 to 11. (Tidings Online.) Then he moves on to visit Israel and the West Bank from May 11 to 15, . The Israel Ministry of Tourism has set up a website with information about this portion of the Pontiff's trip. The website includes Benedict's itinerary and presumably will be updated with reports during his trip. The Forward last week previewed the visit in an article titled Pope's Visit to Israel Fraught With Potential Minefields. And Politics Daily today has a lengthy review of the religious, political and personal issues that confront the Pope on the trip. Meanwhile Zenit yesterday reported that the Pope will deliver 29 discourses and homilies during his week in the Middle East, and will meet with both government officials and representatives of Christianity, Islam and Judaism.

Recent Articles and Books of Interest

From SSRN:

Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time, (Duke Law Journal, Vol. 59, January 2010).

Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, (Boston University Law Review, Vol. 89, 2009).

From SmartCILP and elsewhere:

Mohamed R. Hassanien, International Law Fights Terrorism in the Muslim World: A Middle Eastern Perspective, 36 Denver Journal of International Law & Policy 221-253 (2008).

Frank Ravitch, Playing the Proof Game: Intelligent Design and the Law, 113 Penn State Law Review 841-897 (2009).

Mark Strasser, The Protection and Alienation of Religious Minorities: On the Evolution of the Endorsement Test, 2008 Michigan State Law Review 667-724.

Symposium--First Amendment Rights in America's Public Schools: From the Schoolhouse Gate to the Courthouse Steps. Welcoming remarks by Rex R. Perschbacher and Alan Brownstein; articles by Vikram David Amer, Kenneth Starr, R. George Wright, Alan Brownstein, Erwin Chemerinsky, Steven K. Green, Joan W. Howarth, Melissa Rogers and Steven D. Smith. 42 UC Davis Law Review 631-1057 (2009).

Symposium: Islam, Democracy, and Nation Building. Articles by Joseph N. Kickasola, John H. Johns, Stephen Schwartz, Mehrangiz Kar, Thomas Najjar and Jennifer Jefferis; note by Eva M. Robinson. 6 Regent Journal of International Law 271-499 (2008).

Brian Leiter, Why Tolerate Religion?, 25 Constitutional Commentary 1-27 (2008).

New Books:

John Witte, The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered, (Cambridge Univ. Press, April 2009), reviewed by the Center for the Study of Law and Religion.

T. Jeremy Gunn, Spiritual Weapons: The Cold War and the Forging of an American National Religion, (Praeger Publishers, Dec. 2008), reviewed by the Center for the Study of Law and Religion.

Sunday, May 03, 2009

Q&A on Hate Crimes Bill Seeks To Reassure Religious Leaders

Third Way has recently issued a memo titled Questions and Answers about the Hate Crimes Bill for People of Faith. It attempts to alleviate concerns raised particularly by conservative Christian groups about religious freedom and the Hate Crimes Prevention Act that has recently passed the House. (See prior posting). The memo concludes that pastors could not be prosecuted under the bill for preaching that homosexuality is an abomination, or saying that gay people will go to hell. It points to specific language in the bill, language of the House Report and the special role of the 1st Amendment. The memo also points out that the bill expands protection against religiously motivated hate crimes:

Current federal law only protects against hate crimes based on
religion if the person was targeted because they were engaged in a federally protected activity like voting or going to school. The legislation under consideration by Congress would remove that limitation.

[Thanks to Michael Lieberman for the lead.]

5th Circuit: Prison's Rules On Buddhist Services May Violate RLUIPA

In Newby v. Quarterman, (5th Cir., April 30, 2009), the U.S. 5th Circuit Court of Appeals upheld a Buddhist inmate's challenge to Texas prison rules that require religious services in his prison unit to be conducted by either a chaplain or an approved religious volunteer. There were no approved religious volunteers for Buddhist ceremonies, and the regular chaplain refused to conduct Buddhist ceremonies because he is unfamiliar with Buddhist religious practices and was occupied by other obligations. Ruling on plaintiff's claim under RLUIPA, the court held that there is a reasonable basis for a fact finder to conclude that the outside-volunteer policy creates a substantial burden on plaintiff's free exercise and that Texas has not furthered its interest in prison safety and security through the least restrictive means. The court also reversed the district court's dismissal of plaintiff's free exercise and equal protection challenges to the prison's outside-volunteer policy.

1st Amendment Challenge To Termination of Parental Rights Dismissed

In Haines v. New Hampshire Department of Health and Human Services, 2009 U.S. Dist. LEXIS 36331 (D NH, April 28, 2009), a New Hampshire federal magistrate judge held that the Rooker-Feldman doctrine deprives the federal court of jurisdiction to review a state court's termination of a mother's parental rights and rulings on visitation. She raised 1st Amendment objections to the state's order, saying that the state court's rulings were based on her religious objection to undergoing a mental health evaluation that was based on principles of secular psychology or psychiatry.

Zoning Challenge Dismissed On Ripeness Grounds

In Miles Christi Religious Order v. Northville Township, 2009 U.S. Dist. LEXIS 36228 (ED MI, April 30, 2009), a Michigan federal district court dismissed as unripe a challenge to a Township's zoning determination classifying as a small church the house where Miles Christi priests and monks reside and conduct classes and services. Miles Christi, a Catholic religious order, challenged the determination as a violation of RLUIPA, the 1st and 14th Amendments and various provisions of the Michigan constitution. The court found that plaintiffs had not appealed to the zoning board of appeals the township's determination that a change to a more intensive use of the property had occurred. Nor did they submit a site plan or seek a variance or other administrative relief from the zoning board of appeals.

New Approach Attempted In Challenge To Drug Laws By Religious Users

In Olsen v. Holder, (SD IA, April 27, 2009), a priest in the Ethiopian Zion Coptic Church-- which employs marijuana in its religious rituals-- attempted a new approach in challenging federal laws banning marijuana use. Instead of asserting free exercise claims, he sought a declaratory judgment and injunction against continuing marijuana as a Schedule I drug under federal law. (Background on Controlled Substances Act.) He alleged that marijuana is only appropriately listed on Schedule I if it has "no currently accepted medical use in the United States," and that now 12 states have enacted laws finding that it does have medical uses. The court, however, dismissed the case on jurisdictional grounds, holding that the appropriate route to raise the issue is to appeal to the appropriate Court of Appeals a refusal by the DEA to reschedule marijuana. An appeal by plaintiff of a refusal by the DEA is already proceeding on a parallel track. (See prior related posting.)

UPDATE: In McMahon v. Iowa Board of Pharmacy, (IA Dist. Ct., April 21, 2009), an Iowa state court reviewed a state pharmacy board's action on rescheduling of marijuana under state law and remanded the case to the Board, holding that it must recommend rescheduling to the legislature if it finds that marijuana has an accepted medical use in the U.S. and is safe for use under medical supervision. Plaintiff in the federal case discussed above was an intervenor in the state case. The pleadings and briefs in the case are available here. Extensive background documents, pleadings and briefs in the attempt to obtain federal reclassification are available here. (Also the link in the original posting has been changed to a version of the opinion that is available without a LEXIS subscription.)

Recent Prisoner Free Exercise Cases

In Johnson v. Killian, 2009 U.S. Dist. LEXIS 34670 (SD NY, April 21, 2009), a New York federal district court rejected for failure to exhaust administrative remedies plaintiffs' objections to Muslim inmates being limited to performing congregational prayer once a day, five times per week, and limits on their ability to pray individually in their cells.

A series of similar screening opinions have recently been released by a California federal magistrate judge. In each, she dismisses the complaint, with leave to amend, holding (among other things) that plaintiff has failed to adequately allege that prison restrictions being challenged infringe on his sincerely held religious beliefs. Each of the following is from Magistrate Judge Sandra M. Snyder in the Central District of California: Chavez v. Ahlin, 2009 U.S. Dist. LEXIS 35063 (April 8, 2009); Languein v. Ahlin, 2009 U.S. Dist. LEXIS 35060 (April 8, 2009); Sanchez v. Ahlin, 2009 U.S. Dist. LEXIS 35062 (April 8, 2009); Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 35050 (April 7, 2009); Sumahit v. Ahlin, 2009 U.S. Dist. LEXIS 35205 (April 9, 2009); Angulo v. Ahlin, 2009 U.S. Dist. LEXIS 35452 (April 9, 2009).

In Ellington v. Director of Corrections, 2009 U.S. Dist. LEXIS 34895 (ED CA, March 30, 2009), a California federal magistrate judge dismissed, on grounds of failure to comply with the procedural rule on joinder, plaintiff's claim that he was denied a kosher diet in compliance with his faith, which consists of House of Yahweh, Kaballah, and Hebrew/Islam. Plaintiff was given leave to refile amended complaints.

In Cowart v. Gonzales, 2009 U.S. Dist. LEXIS 34991 (MD GA, Feb. 24, 2009), a Georgia federal magistrate judge recommended granting summary judgment to defendant in a lawsuit claiming that authorities seized religious material from plaintiff's cell and subsequently had the materials destroyed. The court found that plaintiff had failed to exhaust his administrative remedies as to this claim. Another claim alleging withholding of religious mail for one day was dismissed as not interfering with plaintiff's free exercise of religion.

UPI reported last week that a Nebraska judge refused a state prisoner's request to change his name for religious reasons to "Sinner Lawrence Bilskirnir." Plaintiff is an adherent of the Norse religion.

Utah High Court Finds Church's Theft of Funds Violates Anti-Racketeering Statute

In Hill v. Estate of Owen A. Allred, (UT Sup. Ct., May 1, 2009), the Utah Supreme Court held that an elaborate scheme by a religious group and some of its followers to steal $1.54 million from a woman who thought the funds were being used to purchase a ranch violates Utah's Pattern of Unlawful Activity Act. The statute, Utah Code Ann. § 76-10-1605, allows an award of double damages and attorneys' fees to plaintiff, Virginia Hill, who was injured by a pattern of unlawful activity. Drawing on federal precedent, the court rejected defendants' claim that conversion of Hill's money involved only a single episode of criminal activity.

The court also reversed the trial court's holding that Hill could not be awarded punitive damages because of "unclean hands." She had failed to produce tax returns showing she had paid taxes on the funds converted by defendants. Since the damages she was awarded were not based on doctrines of equity, the court concluded that "the hygiene of her hands was never at issue." Friday's Salt Lake Tribune reports on the decision.

Saturday, May 02, 2009

Canadian Court Orders More Hearings On Whether Witness Can Wear Niqab

Toronto's Globe and Mail and the National Post report on a decision handed down last Thursday by Ontario's Superior Court of Justice on whether a Muslim woman should be allowed to testify in court with her face fully covered by a niqab. The Toronto-area woman wants to testify with her face veiled at the trial of two men charged with sexually assaulting her when she was a child. A Provincial Court judge refused her request, finding that she was motivated more by comfort than by religious belief. The Superior Court reversed the decision, instructing the Provincial Court to hold two hearings-- one on whether the woman's beliefs are sincere, and a second on whether the evidence rules permit introduction of testimony from a veiled witness.

Australian Court Rejects Muslim Man's Claim of Invalidity of Marriage

The Family Court of Australia has handed down an interesting decision in Wold & Kleppir, ([2009] FamCA 178, Feb. 6, 2009), a case in which a husband defended against his wife's claim for a property settlement by asserting that the couple were never validly married. The court rejected husband's claim that he believed the ceremony performed by an Imam was merely one to convert to Islam the woman with whom he was living and with whom he had fathered two children. The court concluded that the husband "well knew it was a ceremony of marriage."

The court also rejected a a second argument made by husband. He claimed that the marriage is invalid because it is potentially polygamous, since any Muslim man in Australia can take up to 4 wives. The court accepted the argument by wife's counsel that this would lead to the absurd result of every Muslim marriage in Australia being invalid. Today's Australian reports on the decision.

Teacher's Criticism of Creationism Found Violative of Establishment Clause

In C.F. v. Capistrano Unified School District, (CD CA, May 1, 2009), a high school student and his parents brought suit against high school history teacher James Corbett alleging that Corbett violated the Establishment Clause by making repeated comments in class hostile to religion in general and Christianity in particular. The court found that many of the challenged statements did not mention religion, but merely took positions on issues that particular religious groups find offensive. Of several comments specifically mentioning religion, the court found only one of them violative of the Establishment Clause-- criticism of fellow teacher John Peloza who advocated creationism. Corbett said, in part: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The court concluded there was no legitimate secular purpose in Corbett's characterization of Creationism as "superstitious nonsense," and that the characterization sent a message of disapproval of religion.

The court dismissed claims against the school district, and left for later adjudication the question of the remedy that would be granted against Corbett. Yesterday's Orange County Register and OC Weekly report on the decision.

Obama Will Sign Proclamation, But Not Host Ceremony, On National Day of Prayer

At yesterday's White House Press Briefing (full text), Press Secretary Robert Gibbs announced that on Thursday, May 7, the President will sign a Proclamation recognizing the day as National Day of Prayer. The announcement follows extensive speculation and uncertainty about the President's plans. (See prior posting.) Following up, CBN News reports that the White House will not hold any additional special ceremony marking the day. In taking this route, President Obama reverts to the practice of Presidents Reagan and George H.W. Bush, and moves away from the elaborate White House commemoration held each year during the George W. Bush administration.

The non-governmental National Day of Prayer Task Force (chaired by Shirley Dobson) has extensive events planned for the day, including a program on Capitol Hill from 9:00 a.m. to noon that will be webcast and broadcast on satellite TV channels.

Preliminary Injunction Permits School Posters Advertising See You At The Pole

In Gold v. Wilson County School Board of Education, (MD TN, May 1, 2009), a Tennessee federal district court judge issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior related posting.) In a previous lawsuit, a court found that Lakeview administrators and some of its teachers had violated the Establishment Clause by their involvement with the "Praying Parents" group at the school. (See prior posting.) Now, however, the court essentially concluded that school officials had over-reacted to that earlier decision.

Finding that the school had created a limited public forum in the school's lobby and hallway for community, educational, charitable, recreational, and similar groups to advertise events of interest to students, the court concluded:

Requiring the Plaintiffs to cover all religious speech on the posters under the guise of a reasonable time, place and manner restriction reflects a misunderstanding of law, with the result that the Defendants stifled religious speech, while the restrictions imposed to stifle the speech were neither reasonable nor viewpoint neutral....

The posters invite students and parents to attend the event advertised. By its name, it has a religious connotation, but no one is forced to attend or to engage in a religious exercise; no one is made to read the Bible or pray, and no one is bound to sit in attendance while other students or parents pray. No one is required to accept a religious tract or flyer advertising a religious event, pay attention to a poster, or listen to a religious message.... Mere receipt of an invitation to a religious activity does not rise to the level of support for, or participation in, religion or its exercise to create an Establishment Clause problem.

Today's Tennessean reports on the decision, as does a release from Alliance Defense Fund.

EEOC Gets Settlement In Suit Against Hospital That Refused Leave For Hajj

The EEOC announced this week that a Tennessee federal judge on Monday issued a two-year consent decree settling a religious discrimination lawsuit that the agency had filed against Nashville's Southern Hills Medical Center. The suit alleged that the hospital had refused to permit a Muslim employee to use earned vacation time for an extended leave to make his Pilgrimage to Mecca. It told employee Wali Telwar that instead he would have to resign his position and reapply. (See prior posting.) Under the settlement, Southern Hills will pay $70,000 in damages. The consent decree also enjoins the hospital from refusing to accommodate employees' sincerely held religious beliefs or retaliating against any employee for requesting a religious accommodation. Finally the decree imposes certain record-keeping, posting and reporting requirements in connection with religious accommodations.

Friday, May 01, 2009

Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions

U.S. Supreme Court Associate Justice David Souter sent a letter to President Obama today informing him that he plans to retire at the end of the Court term this year. President Obama delivered a statement (full text) in the White House briefing room praising Souter's service on the court. The Washington Post reports on developments.

Here is a list (with links) of the majority, concurring and dissenting opinions on church-state, religious freedom and religious discrimination issues that Justice Souter has written during his 19 years on the Court.

Majority opinions:

McCreary County v. ACLU, 545 U.S. 844 (2005).
Edelman v. Lynchburg College, 535 U.S. 106 (2002).
Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).

Concurrences:

Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995).
C hurch of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
Lee v. Weisman, 505 U.S. 577 (1992).

Dissents:

Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).
Van Orden v. Perry, 545 U.S. 677 (2005).
Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
Good News Club v. Milford Central School, 533 U.S. 98 (2001).
Mitchell v. Helms, 530 U.S. 793 (2000).
Agostini v. Felton, 521 U.S. 203 (1997).
Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

(Please let me know of any omissions in the list.) [Updated.] [Thanks to Ed Elfrink and Kevin Pybas for additions.]

USCIRF Issues 2009 Report On Religious Freedom Concerns In Various Countries

The U.S. Commission on International Religious Freedom today issued its 2009 Annual Report. The 274-page document issued under the 1998 International Religious Freedom Act recommends that the President designate 13 countries as "countries of particular concern"-- those where violations of religious freedom are the greatest. Eight of those countries are already designated CPC's by the State Department: Burma, North Korea, Eritrea, Iran, China, Saudi Arabia, Sudan, and Uzbekistan. (See prior related posting.) USCIRF recommends adding: Iraq, Nigeria, Pakistan, Turkmenistan and Vietnam.

The Report also places eleven countries on its "Watch List": Afghanistan, Belarus, Cuba, Egypt, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela. (Today's Wall Street Journal carries an op-ed on the growing anti-Semitism in Venezuela.) The Commission calls for close monitoring of Bangladesh, Kazakhstan and Sri Lanka, and says it will issue a report on India later this year after a visit there by USCIRF members.

The USCIRF Report also discusses the role of the OSCE and the United Nations in religious freedom issues and discusses a move by the Organization of the Islamic Conference in the U.N. to limit free speech through banning "defamation of religions." Finally the Report discusses continuing problems in the U.S. policy of expedited removal for asylum seekers. [Thanks to Tom Carter for the lead.]