Senate Resolution Condemns Mumbai Attack, Opposes Religious Extremism

The U.S. Senate on Tuesday passed S. Res. 724, condemning the recent terrorist attack in Mumbai, India. In addition to calling upon Pakistan to root out extremism and calling on President-elect Obama to bolster counter-terrorism cooperation with India, the resolution:

urges bolstered United States efforts to develop and implement policies and projects to combat all forms of religious extremism, including anti-Semitism, in order to deter the type of targeted attacks like that waged against the Chabad Lubavitch center in Mumbai.

Senators Casey and Voinovich, co-sponsors of the Resolution issued a press release announcing Senate passage of the measure.

Sikh Wins Religious Bias Complaint Against CA Corrections Department

Yesterday's Sacramento Bee reports on a recent California State Personnel Board administrative law judge's decision finding that the California Department of Corrections and Rehabilitation (CDC) discriminated against a Sikh applicant for employment. Trilochan "Obe" Oberoi met most of the requirements for being hired as a prison guard. However, CDC refused to allow him to take the gas mask fit test unless he shaved his beard. The ALJ, finding religious discrimination, said that CDC has allowed correctional officers with skin problems that prevent shaving to use an alternative type of mask. He wrote: "it is difficult to imagine why [CDC] cannot extend the same accommodation to [correctional officers] who cannot shave for religious reasons." CDC has until Dec. 18 to appeal the decision.

11th Circuit Hears Arguments In Christian Fraternity's Bid For Recognition

Yesterday, the U.S. 11th Circuit Court of Appeals heard oral arguments in Beta Upsilon Chi v. Machen, a case in which BYX, a Christian fraternity, is challenging the University of Florida's refusal to grant it recognition. University rules prohibit religious (and other) discrimination by recognized student organizations. BYX requires its members to believe in Jesus. In May, a Florida federal district court refused to issue a preliminary injunction against the University. However in August, the 11th Circuit ordered the University to grant recognition to the fraternity while its appeal is pending. (See prior posting.) The AP reports that BYX argued to the court that the University's policy threatens its core beliefs. University's counsel responded that recognized student groups are an extension of the educational process and should be open to all. BYX can maintain its current policy and continue to operate on campus without recognition. However this will mean it is not eligible for funding, priority use of facilities, access to certain bulletin boards, listing in University publications, a University website and email address.

Court Allows Menorah Again In Downtown Poughkeepsie

Articles last week and this week in the Poughkeepsie Journal report on efforts by a local Chabad rabbi in Poughkeepsie, New York, to again erect a 22-foot tall menorah on downtown city property as he has done each Hanukkah since 1996. In the past, city workers have helped him put it up. However this year, the city (along with four intervenors) sued claiming that the use of city workers violates the Establishment Clause.

After complaints last year, the city adopted a policy barring city workers from helping to put up any displays, but allowing anyone to place religious or secular holiday symbols on a specified city-owned vacant lot. Rabbi Yacov Borenstein wants to continue to use the traditional city site for his display, and wants a city "cherry picker" truck to lift him to the top of the menorah for the daily lighting ceremonies. Trial court Justice James D. Pagones ruled yesterday in favor of Rabbi Borenstein, in part because the city traditionally uses tax money to put up wreaths on downtown utility poles and to decorate Christmas trees on city-owned property. He wrote that excluding the menorah would have the principal effect of promoting Christianity and inhibiting Judaism in violation of the Establishment Clause.

UPDAATE: On Dec. 16, a state appellate court judge refused to stay Judge Pagones' ruling pending appeal. (Poughkeepsie Journal).

Articles Analyze Background of Nigeria's Muslim-Christian Violence

Nigeria's Daily Sun this week published an extensive two-part article explaining the background of the recent much-publicized Muslim-Christian violence in the city of Jos. (See prior posting.) Part 1 of the article titled Beyond the Black Friday in Jos says that "an incendiary mix of factors including politics, ethnicity, religion and class combine to create ideal circumstances for sectarian violence" which is common in northern Nigeria. Part 2 says that "the Federal Government must work on erecting a wall of separation between religion and politics," including an end to sponsorship of Mecca and Jerusalem pilgrimages. It also complains that "a frightening number of our young people are unemployed, unschooled and unskilled. They live on the margins of the society from where they can be recruited to torch churches and mosques or to blow up oil pipelines." It analyzes the cause: "some politicians come in the name of Allah; others come in the name of Jesus. The end result is the same – the plunder of the treasury and the impoverishment of the people."

Transcript Available Of Today's SCOTUS Arguments In Iqbal Case

The U.S. Supreme Court today heard oral arguments in Ashcroft v. Iqbal (Docket No. 07-1015), an appeal growing out of claims that the U.S. government engaged in religious, racial and national origin discrimination in its arrest and subsequent treatment of more than 700 Muslim or Arab men treated as persons of "high interest" after the 9/11 attacks. This case was brought by Pakistani Muslim, Javaid Iqbal, who was placed in solitary confinement for almost six months. He was ultimately deported. Among the defendants named in Iqbal's lawsuit are former Attorney General John Ashcroft, and FBI Director Robert Mueller. The government claimed that they should be dismissed on the basis of qualified immunity. However the Second Circuit disagreed. (Full text of 2nd Circuit decision.)

Here is the government's description of the issues in its petition for certiorari:

The court of appeals held that cabinet-level officers and other high-ranking officials-in this case, a former Attorney General and the incumbent Director of the FBI-may be subjected to discovery and the demands of litigation (at least through the summary judgment stage) in this Bivens action based on bare and conclusory allegations that they knew about and condoned the allegedly discriminatory actions of much-lower-level officials in the Department of Justice in responding to an unprecedented national-security crisis. In addition, the Second Circuit's decision effectively holds that high- ranking officials-including Cabinet officers-may be held potentially liable in Bivens suits on a constructive notice theory that is tantamount to imposing respondeat superior liability.

Today the Los Angeles Times and the AP report on the arguments presented. The full transcript of the arguments is now available, as are all the briefs of the parties and amici.

Today Is 60th Anniversary of Universal Declaration of Human Rights

Today is the 60th anniversary of the adoption by the United Nations General Assembly of the Universal Declaration of Human Rights. Article 18 of the document provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

President Bush yesterday issued a Proclamation (full text) declaring December 10 as Human Rights Day; December 15 as Bill of Rights Day; and the week beginning December 10 as Human Rights Week.

In Britain, the National Secular Society is marking the day by launching the "One Law for All" campaign inthe House of Lords-- a campaign against the use of Sharia law in Britain. According to an NSS press release: "The campaign calls on the UK government to recognise that Sharia law is arbitrary and discriminatory and for an end to Sharia courts and all religious tribunals on the basis that they work against and not for equality and human rights. The campaign also calls for the Arbitration Act 1996 to be amended so that all religious tribunals are banned from operating within and outside of the legal system."

Arizona Supreme Court Hears Arguments On School Vouchers

Attorneys yesterday presented oral arguments to the Arizona Supreme Court in Cain v. Horne, a case testing the constitutionality of two Arizona school voucher programs. An Arizona appellate court had held that while the programs do not violate the Religion Clause of Arizona's constitution, they do violate the separate state constitutional ban on aid to private or sectarian schools. (See prior posting.) The Arizona Capitol Times reported on the arguments, which focused on whether families receiving vouchers, rather than the schools, are the "true beneficiaries" of the state funds. Voucher opponents argued that the state voucher plans effectively reroute funds intended for public schools into private schools in violation of the drafters' desire to protect the public school system and avoid forcing citizens to pay for religious instruction with which they disagree. Before the hearing, hundreds of voucher supporters demonstrated near the court.

Sacristan Gets Unemployment Comp Despite Firing For Opposing Parish Policy

In Czajka v. Department of Employment Security, (IL App., Dec. 5, 2008), an Illinois appellate court overturned the denial of unemployment compensation benefits to Carmen Czajka, a sacristan at the Saint Liborius School responsible for keeping the sacristy clean. She was fired because of her disagreement with a Parish program that would show school children a film, followed by discussions, concerning inappropriate physical contact. She had contacted parents warning them about the program and telling them that they could opt out of the video which Czajka believed "bordered on pornography." The court said: "there simply is no evidence demonstrating that [Czajka] engaged in the conduct with an awareness of any rule or policy forbidding her from expressing her views to parishioners." It also concluded that her actions did not cause harm to the parish. Finding these grounds on which to overturn the denial of benefits to Czajka, the court said it need not decide her First Amendment challenge to the denial of benefits.

Proposal To Protect Scientology From Picketing Tabled

The Riverside, California Board of Supervisors yesterday decided that the proposed cure was worse than the disease as they voted to defer further consideration of an anti-picketing ordinance that had been introduced in response to repeated protests against the Church of Scientology by the international group "Anonymous" that opposes Scientology. The San Diego Union Tribune reports that the tabled proposal would have restricted "targeted picketing" in unincorporated communities to at least 300 feet away from the subject's residence. Council members were concerned that they were being drawn into a religious dispute, and that, in any event, merely moving a protest away from Scientology's San Jacinto compound to a different location does not solve the problem.

Oral Arguments Heard In Missouri Baptist Dispute

The Associated Baptist Press yesterday reported on arguments presented on Nov. 25 to a Missouri state appellate court in the latest installment in a dispute between the Missouri Baptist Convention (MBC) and five institutions that amended their charters to break away from MBC in 2000 and 2001. The institutions apparently disagreed with the fundamentalist stance of new leaders of MBC. (Background.) One of those institutions, Windermere Baptist Conference Center, was the focus of this appeal from a trial court decision that had upheld the change in the Windermere's articles of incorporation. At issue are questions under Missouri's non-profit corporation law as to who could properly vote on the article amendments. Windermere argues that it has no members, so its directors are the proper parties to vote. MBC on the other hand argued that it was the sole member of Windermere and that it controls amendments. The website missouribaptists.org says that MBC has spent $3.7 million in its lawsuits attempting to reassert control over the five break away institution. (See prior related posting.)

Ads Countering Humanists To Appear On D.C. Busses

Washington Post columnist John Kelly yesterday reported on the response being mobilized to ads recently placed on D.C. buses by the American Humanist Association. The Humanists' ad reading "Why believe in a god? Just be good for goodness' sake" has generated considerable reaction. (See prior posting.) Now former Capitol Hill staffer Jo Ellen Murphy has raised nearly $9000 for counter-ads that will begin running on buses next week. They will show the Sistine Chapel's image of God's finger reaching out to Adam, with the added words: "Why Believe? Because I created you and I love you, for goodness' sake. -- God." Murphy's campaign has its own website, "I Believe Too" which features a photo of the ad. A separate group, Pennsylvania Friends in Christ, will be running ads reading: "Believe in God. Christ is Christmas for goodness sake."

ABC Interview With Bush Includes Extensive Discussion of Religious Views

Last night, ABC's Nightline aired a wide-ranging interview with President George W. Bush. An article and published excerpts of the interview on ABC's website report that among the topics discussed were Bush's religious beliefs. Bush said he is not a literalist when it comes to reading the Bible. Asked about his views on evolution, Bush said:

I think evolution can -- you're getting me way out of my lane here. I'm just a simple president. But it's, I think that God created the Earth, created the world; I think the creation of the world is so mysterious it requires something as large as an almighty, and I don't think it's incompatible with the scientific proof that there is evolution.

Asked about the development of his personal faith, Bush said:

It is hard for me to justify or prove the mystery of the Almighty in my life. All I can just tell you is that I got back into religion and I quit drinking shortly thereafter and I asked for help -- I was a one-step program guy.

In the interview, Bush rejected the notion that he was chosen by God to be president, and the suggestion that his decision to go to war in Iraq was based on his religious views.

6th Circuit Upholds Michigan's Exclusion of Biblical Quotes From Advocate Directory

In Grosjean v. Bommarito, (6th Cir., Dec. 4, 2008), the U.S. 6th Circuit Court of Appeals rejected free speech, free exercise, overbreadth and vagueness challenges to the editorial practices of Michigan's Unemployment Insurance Agency in its listing of advocates available to assist claimants. Advocates are private contractors paid by the state to furnish free advice and representation to claimants in their appeals of rulings on unemployment benefits.

The Agency removed Biblical quotations that plaintiffs wished to include in their profiles that UIA sent out to claimants. Clients had previously been attracted to plaintiffs because of those references. The court held that the current compilation, using a required template that limits the form and style of biographical information presented, is government speech. So UIA can make content-based choices to limit published information to narrow professional biographical data. An earlier, more open-ended version, of the listings arguably were not government speech. However they were a non-public forum, in which the UIA could impose reasonable, content-based regulation. (See prior related posting.)

Denial of Equal Protection To Jews Claimed In Appeal of Bail Denial

A fascinating religious discrimination issue is raised in a motion to reverse an Iowa federal magistrate's denial of bail in the prosecution of Sholom Rubashkin. (Full text of Motion and of the Memorandum in Support of the Motion in US v. Rubashkin, (ND IA, filed 12/8/08.)) Rubashkin is the former CEO of the large Postville, Iowa kosher meat packing plant, Agriprocessors, Inc. The plant was the subject of a high-profile immigration enforcement raid earlier this year. (See prior posting.) Originally Rubashkin, charged with immigration law violations, was released on bail. Two weeks later he was arrested under a superseding indictment, this one including bank fraud charges. This time the magistrate judge denied bail, claiming a risk that Rubashkin would flee to Israel. In denying bail, the magistrate pointed to the fact that two other Agriprocessors supervisors had fled, and that Israel's Law of Return gives Jews moving there an automatic right of citizenship.

In appealing the magistrate's order to the court, defendant argued first that the extradition treaty with Israel made reliance on the Law of Return useless. Defendant went on to argue that invoking the Law of Return violated his equal protection rights. The brief argues that a rule which treats Jews differently is subject to strict scrutiny. It went on:

The government clearly has a compelling interest in insuring that defendants are present at trial.... But it has no compelling interest in a rule that Jews are a heightened bail risk, for the simple reason that is has failed to demonstrate any statistical correlation between Jews and flight risk. In other words, the government introduced no evidence that Jews are more likely to flee because of the Law of Return than non-Jews. An unproven assumption is fatal in a case subject to strict scrutiny.... Moreover, there are clearly narrower, tailored measures, that would be effective rather than subjecting Jews to a different set of standards.

JTA reported on these developments yesterday.

UPDATE: Here is the full text of the magistrate's Nov. 20, 2008 Order for Detention denying bail, thanks to Volokh Conspiracy.

President Bush Sends Muslims Greetings On Eid al-Adha

In a statement issued yesterday (full text), President Bush sent greetings to Muslims around the world who were celebrating Eid al-Adha, the Festival of Sacrifice. As reported by AFP, the festival, which was celebrated yesterday as the Hajj concludes, commemorates Abraham's willingness to sacrifice his son at God's command. In the end, God provided a sheep as an alternative sacrifice. Muslims sacrifice a sheep to symbolically re-enact the moment. In his statement, Bush said: "Our Nation is blessed by vibrant Muslim communities. On this holiday, all Americans celebrate our religious liberty, and we remember that religious freedom belongs not to any one nation but to the world."

Cert. Denied In Case On Religious Candy Canes In School

Yesterday, the U.S. Supreme Court denied certiorari in Curry v. Hensinger, (Docket No. 08-190) (Order List.) In the case, the 6th Circuit Court of Appeals concluded that a Saginaw, Michigan school had legitimate pedagogical reasons for barring a fifth-grader from selling candy canes with religious material attached as part of a classroom project to learn about marketing. (See prior posting.) Education Week reported on the Supreme Court's action. [Thanks to Alliance Alert for the lead.]

Another Appeal To 5th Circuit Filed In World Wide Street Preachers Case

According to the Monroe (LA) News Star, an appeal to the 5th Circuit has been filed in World Wide Street Preachers Fellowship v. Town of Columbia, Louisiana. The Fellowship is seeking reversal of a determination by a Louisiana federal district court that the town of Columbia should be dismissed as a defendant because the court found no widespread municipal practice of infringing speech rights. (See prior posting.) A claim under 42 USC Sec. 1983 can be brought against a municipality only if it has a policy or custom of infringing constitutional rights. Regardless of the outcome of the appeal, the trial court has allowed plaintiffs to proceed against a police officer who broke up the Fellowship's protests. The Fellowship generally protested against abortion, homosexuals and the ordination of women ministers. The case has already been on appeal once before the 5th Circuit.

Raelians Threaten To Sue Las Vegas Police For Airport Discrimination

Ricky Roehr, a bishop in the Raelian Movement and its North American Continental Guide, says that the movement will file suit against the Las Vegas (NV) police and the Las Vegas airport authority for religious discrimination and abuse of power. A press release from the Raelians says that they were forced to leave the Las Vegas McCarran International Airport on Saturday afternoon under threat of arrest as they awaited the arrival of their spiritual leader, Rael. Roehr says that none of the Raelians created any disturbance that would justify the police order. Hundreds of believers are expected to attend the Dec. 13th International Raelian Celebration in Las Vegas. The Raelians believe that life on earth was created by extraterrestrial human beings. A French journalist, Rael, learned this in 1973 when he was contacted by a visitor from another planet. (Rael website.)

2nd Circuit Hears Arguments In Vermont License Plate Case

The U.S. Second Circuit Court of Appeals yesterday heard oral arguments in Byrne v. Rutledge, a case in which a Vermont federal district court upheld Vermont's policy of refusing to place religious messages of any kind on "vanity" license plates. (See prior posting.) Yesterday's Burlington Free Press reported on the arguments. Appellants claim that the rule amounts to unconstitutional viewpoint discrimination since motorists can obtain vanity plates with letters or numbers that express their non-religious viewpoints on policies. Motorist Shawn Byrne had wanted to obtain a license plate reading "JN36TN," short for John 3:16.

President Bush Gives Half-Hour Interview To Saudi TV Network

Yesterday, President Bush gave a 30-minute interview (full text) to Middle East Broadcasting Center reporter Nadia Bilbassy-Charters. MBC is a Saudi-run television network broadcasting from the UAE. Here an excerpt from the interview:

Q: Sir, some people say that the war on terror is a war on Islam.... Yet you went to the first mosque after 9/11 and you spoke there. How do you convince people in the Middle East that George Bush is not fighting a war against Islam?

THE PRESIDENT: ... [I]t troubles my soul, because I believe we're all God's children. And I hear people say, George Bush doesn't like Muslims; he wants to fight Muslims.... But I am objecting to anybody who murders innocent people to achieve their objectives. I don't think people who murder in the name of religion are truly religious people. And secondly, I would hope that people would know that when we try to use some of our influence to help on education programs ... or we welcome students, Saudi students, to the United States to study here, that it's a sign of respect and a sign of my desire to reach out to all people regardless of their religion.

Vietnam Court Gives Suspended Sentence To Catholic Demonstrators

In Vietnam today, eight Catholics were tried for disturbing public order and damaging property during a series of prayer vigils last year. The vigils were protesting the government's asserted ownership of Church property and the proposed sale of the property near Thai Ha Church to developers. Officials say that defendants destroyed a brick wall around the property whose claimed ownership by the city of Hanoi is disputed by Catholics. (AP). Javno reports that at the conclusion of the trial, seven of the defendants were given suspended prison terms and one was merely given a warning. Nearly 1,000 supporters carried signs outside the Dong Da district court where the trial was taking place. The sentence was more lenient than many had expected. Defendants could have been sentenced to up to seven years in prison. (See prior related posting.)

Title VII's Religious Organization Exclusion Held Non-Jurisdictional

Smith v. Angel Food Ministries, Inc., 2008 U.S. Dist. LEXIS 98280 (MD GA, Dec. 4 2008) is a religious discrimination decision that will be of interest to experts in the Federal Rules of Civil Procedure. Angel Food Ministries (AFM) is an organization that partners with churches to help distribute food to the poor. James and Crystal Smith, who were employed by AFM in non-clergy positions, were discharged because they had stopped attending Emmanuel Praise Church. Attendance was a condition of employment. When the Smiths sued under Title VII of the 1964 Civil Rights Act claiming religious discrimination, AFM moved to dismiss for lack of subject matter jurisdiction, arguing that AFM comes within the exclusion in Title VII (Sec. 702) that permits religious organizations to hire on the basis of religion. The Smiths contend that AFM is not a religious organization entitled to claim that exemption. The court held that whether the religious exemption is available is not a "jurisdictional" question. Therefore plaintiffs' FRCP Rule 12(b)(1) motion is not the appropriate way to assert the defense. Instead the defense should be raised, after discovery, by way of a Rule 12(b)(6) motion for failure to state a claim, or a Rule 56 motion for summary judgment.

Religious Worker Visa Rules Have Been Amended

The Department of Homeland Security has recently amended its regulations implementing the Citizenship and Immigration Services' Religious Worker program. (73 Fed. Reg. 72275 (Nov. 26, 2008)). The long-pending regulations were adopted after Public Law 110-391, signed by the President on Oct. 10, 2008, mandated their issuance within 30 days. Responding to concerns about fraud in the religious worker program, the new regulations require

religious organizations seeking the admission to the United States of nonimmigrant religious workers to file formal petitions with USCIS on behalf of such workers.... USCIS will conduct inspections, evaluations, verifications, and compliance reviews of religious organizations to ensure the legitimacy of the petitioner and statements made in the petitions. This rule adds and amends definitions and evidentiary requirements for both religious organizations and religious workers. Finally, this rule amends how USCIS regulations reference the sunset date by which special immigrant religious workers, other than ministers, must immigrate or adjust status to permanent residence.

The new rules appear to answer prospectively an issue left open by the 9th Circuit in a decision handed down last week. In order to qualify as a "religious occupation," among other things the duites may not be "primarily administrative or support such as janitors, maintence workers, clerical employees, fund raisers, persons solely involved in the solicitation of dontations, or similar positions, although limited administrative duties that are only incidental to religious functions ar permissible."

Responding to criticism of the rules as they were originally proposed in 2007 (see prior posting), USCIS announced:

The final rule also removes the examples of employment positions from the proposed definition of "religious occupation.'' The listed employment positions were only examples, but commenters appeared to believe that the examples represented an exhaustive or biased list of employment positions that were eligible for religious worker status and that the list was tailored only to Judeo-Christian organizations. USCIS has removed those examples to eliminate confusion. The final rule, however, clarifies that religious organizations must submit evidence identifying religious occupations that are specific to that denomination.

India's Supreme Court Says Marriage By Christian Under Hindu Marriage Act Is Void

In Raj v. Pavani, (India Sup. Ct., Dec. 4, 2008), the Supreme Court of India held that a marriage entered into and registered under the Hindu Marriage Act is void where the husband was actually a Roman Catholic and misrepresented at the time of the marriage that he was Hindu. The court held that the wife (who was now remarried) should be granted a decree of nullity. The Hindu on Sunday reported on the decision.

Recent Articles and Book of Interest

From SmartCILP:

• Donald R. Davis, Jr., Before Virtue: Halakhah, Dharmasa, and What Law Can Create, 71 Law & Contemporary Problems 99-108 (2008).


• Laura Dudley Jenkins, Legal Limits on Religious Conversion in India, 71 Law & Contemporary Problems 109-127 (2008).


• Martha Nussbaum, David C. Baum Memorial Lecture. Living Together: The Roots of Respect, 2008 University of Illinois Law Review 1623-1641.

New Book:

• Zaki Cooper and Guy Lodge (Eds.), Faith in the Nation:Religion, Identity and the Public Realm in Britain Today, (IPPR, Dec. 2008), reviewed in the Times of London.

Group Calls for Removal of Texas State Board of Education Member

The Texas Freedom Network is calling for the removal of Cynthia Dunbar from the Texas State Board of Education. Saturday's Ft. Wort Star-Telegram reports that the call came after Dunbar published a new book titled One Nation Under God. In it she claims that the public school system is unconstitutional and tyrannical, because public schools undermine the scriptural authority of families to direct their children's education. However she goes on to say that it would not be responsible at this late date to try to dismantle our system of public education. Dunbar says her book was written for Christian parents seeking an alternative to public education. [Thanks to Scott Mange for the lead.]

Texas County Denies Televangelist Tax Exemption Because of Secrecy on Salaries

Ft. Worth (TX) televangelist Kenneth Copeland, who has been resisting Congressional requests for financial information from his prosperity gospel organization (see prior posting), now finds that this lack of transparency has created state tax problems. According to yesterday's Ft. Worth Star-Telegram, Tarrant County, Texas has denied Kenneth Copeland Ministry's application for a personal property tax exemption for its $3.6 million jet. Texas Comptroller of Public Accounts Form 50-115, which charitable organizations must file to apply for a property tax exemption, requires the charitable organization to attach a list of salaries and other compensation for services paid in the last year, and to list any funds distributed to members, shareholders or directors. Tarrant's chief appraiser denied the Ministry's application because Copeland's accountant was only willing to state that the ministry "is operated in a way that does not result in accrual of distributable profits, realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered...." The Ministry is appealing the exemption denial at a hearing on Monday.

Recent Prisoner and Institutional Free Exercise Cases

In Desimone v. Bartow, 2008 U.S. Dist. LEXIS 97271 (MD GA, Oct. 27, 2008), a Georgia federal district court refused a request to appoint counsel in a pro se case in which plaintiff, confined in a mental health Department of Corrections facility, alleged that his free exercise rights were violated by authorities denying him the ability to write in a language he refers to as "Atlantean." (See prior related posting.)

In Hawkins v. Ferriter, 2008 U.S. Dist. LEXIS 98220 (D MT, Dec. 4, 2008), a Montana federal district court dismissed a prisoner's free exercise claim against Montana Governor Brian Schweitzer. Plaintiff had alleged that the Governor holds authority over the workings of the Montana State Prison and harbors "anti-Catholic feelings."

In Marr v. Foy, 2008 U.S. Dist. LEXIS 97891 (WD MI, Dec. 3, 2008), a Michigan federal district judge affirmed a federal magistrate's order denying plaintiff prisoner's motion for appointment of counsel in a suit alleging free exercise and RLUIPA violations. The suit alleges that in retaliation for his requesting kosher food, authorities assigned plaintiff to work as a "midnight porter" which interfered with his daytime religious study and worship.

CBN News reports (Dec. 4) that the ACLU of New Jersey has filed a lawsuit against New Jersey prison authorities on behalf of inmate Howard N. Thompson Jr., an ordained Pentecostal minister, challenging a 2007 ban imposed by the New Jersey Corrections Department on preaching by inmates.

California Housing Discrimination Case Settled

Lookout News reported on Friday that a settlement has been reached in a complex group of lawsuits in Santa Monica, California growing out of charges that a group known as Or Khaim Hashalom (OKH) was evicting tenants from a rent-controlled apartment building because of their race, religion and national origin in order to build luxury condominiums for Jewish persons from the Middle East. The building is located in an exclusive part of the city. The city also says that OKH falsely claimed to be a religious organization. The city had designated the building an historic landmark in order to keep OKH from demolishing it. (See prior posting.) Under the terms of the settlement, OKH will adopt a comprehensive fair housing policy, will return the apartments to the jurisdiction of the Rent control Board at their former rates, and will keep the building on the rental market for at least three years (with an additional one year grace period for current tenants). The settlement allows evicted tenants to move back and provides for mandatory mediation with tenants over damages.

Samoan Council of Churches Wants To Limit Entry of New Religions To Country

In the South Pacific Ocean nation of Samoa, Congregational Church minister Oka Fau'olo, who is head of the Samoa Council of Churches, says the Council has asked the country's Prime Minister to consider limiting the constitutionally protected freedom of religion in the country. According to Radio New Zealand on Friday, Fau'olo want the government to limit the number of religious groups entering the country. He is concerned that mainstream churches are losing members. Their congregants are converting to small denominations and non-Christian beliefs. Currently the main religious groups in Samoa are the Congregational Christian Church of Samoa, the Methodists, Roman Catholics, Latter Day Saints, Assembly of God and Seventh Day Adventist. The prime minister is skeptical about the proposal that would likely require amendment Article 11 of Samoa's Constitution. The limitation is not a new idea. A 2002 Pacific Magazine article reported Fau'olo supported the idea then, although the Samoan Supreme Court had ruled that it was illegal for village councils to forbid the entry into villages of new religious groups.

Nebraska High Court Rejects Free Exercise Challenge To Newborn Screening Law

In In re Interest of Joel Anaya, (NE Sup. Ct., Dec. 5, 2008), the Nebraska Supreme Court held that the religious freedom clause of the Nebraska Constitution (Art. I, Sec. 4) should be interpreted identically to the federal Free Exercise clause in determining whether a neutral law of general applicability is constitutional. Applying this standard, the court rejected a state constitutional free exercise challenge to a Nebraska statute that requires newborns to have a blood screening test for specified metabolic and genetic disorders. The court pointed to its 2005 decision in which it had reached the same conclusion in a federal free exercise challenge to the law brought by the same family in connection with another of their children. However, the court concluded that the state's enforcement of the newborn screening law by taking temporary custody of the newborn was not justified, since there was not evidence of child neglect. The AP today reports on the decision. (See prior related posting.)

Palestinian Infighting Prevents Gazans From Making Hajj

Some 3000 Palestinians seeking to make Hajj this year find themselves caught in rivalry between Hamas that controls the Gaza Strip and the government of President Mahmoud Abbas that controls the West Bank. According to an AP report yesterday, both rivals submitted a list of Gazans seeking Hajj permits to Saudi authorities. Saudi Arabia granted permits only to the Gazans listed on Mahmoud Abbas' list. Piqued over this, Hamas refuses to permit those individuals to leave Gaza. The Hajj begins tomorrow. (See prior posting.) The head of Egypt's al-Azahr University said that Hamas' interference with pilgrims is a violation of Islamic law. Hamas however says that choosing participants has always been left to local officials, and Abbas has politicized the process.

9th Circuit Defines Religious Workers For Visa Purposes

In Love Korean Church v. Chertoff, (9th Cir., Dec. 5, 2008), the 9th Circuit Court of Appeals interpreted the provisions of 8 USC 1153(b)(4) that provide up to 5000 permanent resident visas per year for religious workers other than ministers. Implementing regulations (8 CFR 204.5(m)(5)) define "religious occupation" as "an activity which relates to a traditional religious function." In deciding whether a choir director qualified, the court rejected the BCIS Administrative Appeal Office's determination that no part of a religious worker’s duties could be non-religious. The court remanded the case for the AAO to determine what quantum of religious duties must be present for the job to qualify. The court also rejected the AAO’s holding that a visa could be issued only if the church had traditionally employed a salaried full-time choir director, saying that the Bureau of Citizenship and Immigration Services was focusing unduly "on the labor history of the institution filing the petition as opposed to the type of work described…." [Thanks to Bob Ritter for the lead.]

UPDATE: As noted by a commenter, the religious worker regulations that are the subject of this decision have recently been amended. The amendments appear to resolve prospectively the issue left open by this decision. See this posting for details.

Many React To Anti-Religion Sign In State Capitol Display

As reported on Tuesday, the Freedom From Religion Foundation created a stir in Olympia, Washington when it took advantage of the state Capitol's open forum policy permitting any group to put up a display during the holiday season. FFRF put up a sign extolling the virtues of non-belief. Sometime overnight between Thursday and Friday, the 50-pound sign disappeared from the Capitol building, and then showed up at a local radio station where an unidentified man dropped it off. Meanwhile, other groups have applied to place displays in the Capitol, including a set of "Nativity balloons" from one applicant, and a "Festivus" pole (honoring a made-up holiday depicted by comedian Jerry Seinfeld) from another group. State troopers are now in the Capitol building guarding the display that remains—a Nativity scene. Presumably they will remain to guard other displays as well.

Bill O’Reilly on Fox News carried a segment (full text)on Tuesday night that was critical of the FFRF display. That led to the Governor’s office receiving over 200 calls per hour objecting to the sign. Governor Chris Gregoire and Attorney General Rob McKenna issued a statement defending the state’s non-discriminatory policy, saying that the state capitol "belongs to all citizens of Washington state." These developments are reported by CNN, KATU News and the AP. [Thanks to Scott Mange for the lead.]

7th Circuit En Banc Upholds Damages Against Muslim Groups For Financing Hamas

In Boim v. Holy Land Foundation for Relief and Development, (7 Cir., Dec. 3, 2008), in a 7-3 en banc decision, the 7th Circuit Court of Appeals held the American Muslim Society and the Quranic Literacy Society liable under 18 USC 2333. The statute, as interpreted by the court, permits the award of treble damages against those who donate funds to a terrorist group. The lawsuit was brought by parents of a Jewish teenager who, in 1996, was shot to death by members of Hamas in Israel. Finding no First Amendment problem even if a donor does not intend to further the illegal goals of an organization, the court said:

Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability. To require proof that the donor intended that his contribution be used for terrorism—to make a benign intent a defense— would as a practical matter eliminate donor liability except in cases in which the donor was foolish enough to admit his true intent.

The court also said that donors to terrorism should not be able to escape liability just because "terrorists and their supporters launder donations trough a chain of intermediate organizations." The court also rejected the 7th Circuit panel's conclusion that there was not sufficient evidence to find Hamas was responsible the teenager's death.

The court remanded for further trial the question of liability of the Holy Land Foundation, finding that the district court had wrongly applied the doctrine of collateral estoppel in holding it liable. The court reversed the judgment against an individual, Muhammad Salah, because his contributions pre-dated the effective date of a critical portion of the statutes under which the suit was brought. Judges Rovner, Williams and Wood dissented in two separate opinions. Bloomberg and IPT News both reported on the decision earlier this week. [Thanks to Jewish Delaware for the lead.]

Brookings Report Advises Obama On Continuation of Faith-Based Initiative

The Brookings Institution yesterday released a 58-page paper titled Serving People in Need, Safeguarding Religious Freedom: Recommendations for the New Administration on Partnerships with Faith-Based Organizations. Written by Brookings fellow E.J. Dionne, Jr. and Wake Forest Divinity School’s Melissa Rogers, the paper makes sixteen recommendations to the Obama administration for continuing, clarifying, modifying and strengthening President Bush’s Faith-Based and Community Initiative. The report recommends that the new administration ultimately create "a more durable policy regime" for partnering with religious groups so that the ground rules do not change from administration to administration. Brookings has separately posted the "List of Sources" that serve as endnotes to the report.

Russian Orthodox Patriarch Alexy II Dies

The International Herald Tribune reports that Russian Orthodox Patriarch Alexy II died today in Moscow at age 79. Heading the Church since 1990, Alexy presided over a restoration of the influence of the Orthodox Church in Russia. He maintained close ties with the Russian government and also often spoke out on moral issues. Alexy's relations with the Roman Catholic Church were often contentious. Pope Benedict XVI issued a statement of condolence. (International Herald Tribune.) The Jewish Telegraphic Agency eulogized Alexy, saying that he "became one of the first major religious Christian voices to call for an end to anti-Semitism in Russia." The Moscow Times speculates on Alexy's likely successor.

Times Ad Condemns Violence Against LDS Church For Its Prop 8 Support

A full-page ad titled "No Mob Veto" (full text) ran in today's New York Times. The ad condemns the "violence and intimidation" being directed at the Mormon Church by reason of its support of California's Proposition 8 that banned same-sex marriage. (See prior posting.) Coordinated by the Becket Fund, the ad is signed by thirteen prominent religious, academic and human rights leaders. The ad indicates that the signers have different views on the "wisdom and justice" of Proposition 8, but agree on their opposition to anti-religious bigotry and violence. Signers included individuals with Evangelical, Catholic and Jewish organizational affiliations.

In a press release on the ad, Interfaith Alliance President C. Welton Gaddy said: "I am pleased to see the newfound commitment of some of my friends on the right to fight against anti-religious bigotry and violence against houses of worship.... [However] I do wonder if the signers will be willing to spend tens-of-thousands of dollars along with their prestige the next time a primarily gay congregation’s legitimacy is called in to question, or a mosque is targeted for harassment." Towleroad blog has additional background on the ad.

Irish Broadcasting Commission Rejects Christmas Ads From Catholic Bishops

The Broadcasting Commission of Ireland (BCI) General Advertising Code, Sec. 9, as well as Section 10(e) of Ireland's Radio and Television Act of 1988 and Section 65 of the Broadcasting Act 2001, ban the broadcast in Ireland of ads "directed towards a religious end." In a press release issued yesterday, BCI said that applying this ban, it had rejected a number of scripts for a proposed Christmas advertising campaign by the organization Veritas which is owned by the Irish Catholic Bishops Conference. According to yesterday's Irish Times, the offending ad encouraged people to buy a Christmas gift that "means more."

NY Appellate Court: Civil Courts Can Require Inspection of Church Records

In Tae Hwa Yoon v New York Hahn Wolee Church, Inc., (NY App. Div., Nov. 25, 2008), a New York state appellate court reversed the dismissal of one claim in a lawsuit against a Yonkers (NY) church, its pastor and several of its trustees. Plaintiff, a member and former trustee of the church, alleged that defendants had diverted or misappropriated church funds. Invoking the New York Not-For-Profit Corporation Law, plaintiff sought to inspect the church's books and records, compel an accounting, enjoin defendants from accessing certain church funds and obtain a declaration that the election of the trustee who replaced him and the installation of a new pastor violated the church's bylaws. The trial court dismissed on the ground that the case could not be decided by the application of neutral principles of civil law.

The Appellate Division held that the claim for production of church books and records (N-PCL Sec. 621) could be decided without examining issues of religious doctrine. The Appellate Division upheld dismissal of the remainder of the claims, but on the ground that since they were asserting rights of the church, they needed to be brought as a derivative action and the special procedural requirements of such actions needed to be met. (N-PCL Sec. 623). [Thanks to J.J. Landa for the lead.]

Saudi Ministry Prepares For Hajj Pilgrims

The Hajj takes place in Saudi Arabia this year from Dec. 7 to 11. Only pilgrims with Hajj permits may participate. The Saudi Gazette today reports on arrangements that have been made by the Saudi Ministry of Islamic Affairs, Daw'a, and Guidance to handle the thousands who will take part. Over 800 religious guides and 180 interpreters have been stationed at pilgrim entry points and at holy sites. It has created a toll-free telephone number, and has set up 123 field centers in Mecca and Medina, to answer Hajj related questions. An area in Mecca has been converted into a spiritual center for sermons and instructions on performing the Hajj. The Saudi Project for Utilization of Sacrificial Animals will act as the agent of pilgrims in carrying out the slaughtering of animal offerings and the distribution of the meat in accordance with Shariah.

Tourist Council Treads Carefully In Funding for Christian Music Festival

A column in today's St. Petersburg (FL) Times discusses the state and federal constitutional issues that presented themselves last month as the Hernando County Tourist Development Council decided what kind of support it would give to the Brooksville Ministerial Association's annual summer Freedom Fest Christian music festival. As reported by the Nov. 25 issue of Hernando Today, originally the county agreed to give the Ministerial Association $5000 to help with promotion of the event. However, after questions were raised by the ADL and the ACLU, the Council decided that the funds, to be used to promote tourism, would go directly to vendors and advertisers, and not to the Association. Also, as reported by the Nov. 22 St. Petersburg Times, this year's festival slogan was changed from "God and Country" to the more secular "Family, Freedom and Country." Rev. Joe Santerelli, president of the Ministerial Association, however, says that they are still "going to proclaim the gospel of Jesus Christ at the event."

European Court of Human Rights Upholds French Limit on Head Scarves In Schools

In Dogru v. France, (ECHR, Dec. 4, 2008) [in English, Word.doc] and Kervanci v. France, (ECHR, Dec. 4, 2008) [in French, Word.doc], the European Court of Human Rights upheld French restrictions on Muslim girls wearing Islamic head scarves in their physical education classes. It found that the rule did not violate the girls' freedom of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. As summarized in the Court's press release on the cases:

[T]he purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to the requirements of secularism in state schools..... [N]ational authorities were obliged to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In the Court's view, that concern did indeed appear to have been answered by the French secular model.

In the applicants' cases the Court considered that the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable..... [T]he penalty of expulsion did not appear disproportionate.... [A]pplicants had been able to continue their schooling by correspondence classes. It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It was also clear that the decision complained of was based on those requirements and not on any objections to the applicants' religious beliefs.

Yesterday's Irish Times and Today's Zaman reported on the decision.

In Nicaragua, Sandinistas Use Religion To Keep Political Support

This week's Nica Times (published in Costa Rica) reports on events in Nicaragua as politicians used religion for political purposes before and after recent Nicaraguan municipal elections. Before the Nov. 9 elections, Sandinista President Daniel Ortega sought out evangelical Christian leaders, giving them land, quoting the Bible, dedicating a Bible Plaza in downtown Managua, and declaring a National Day to Honor the Bible. However, after claims of election fraud in last month's elections, the Catholic Church in particular is concerned with the government's use of religious symbols for political ends. After the election, Sandinistas clashed with demonstrators while wearing government T-shirts bearing religious messages such as "Love is stronger than hate." The Ortega government has also attempted to identify itself with religion by placing statues of the Virgin Mary in all the traffic roundabouts in Managua.

Civil Court May Decide Scope of Authority of Archdiocese Agent

In Favalora v. Sidaway, (FL Ct. App., Dec. 3, 2008), a Florida state appellate court rejected a First Amendment religious autonomy challenge to civil court jurisdiction in a suit against the Catholic Archdiocese of Miami. In the case, plaintiff alleged that the Archdiocese fraudulently induced him to settle a claim by promising reforms which it never planned to implement. Plaintiff also asserted that that the agent for the Archdiocese who entered the settlement lacked authority to bind the Archbishop or Archdiocese. The Archdiocese moved to dismiss, claiming that questions of its agent's delegated powers are matters of internal church governance. The court disagreed, holding: "The mere fact that this case may require inquiry into the applicable church law does not constitute 'excessive entanglement' under the First Amendment.... Nothing in this case suggests that the circuit court is poised to substitute its interpretations of church law for those of the religious organization...."

Complaint In Suit Challenging Kentucky Homeland Security Law Now Available

As reported previously, the American Atheists and ten individuals are suing to challenge provisions in Kentucky statutes creating the state's Office of Homeland Security. The statute requires the agency to stress dependence on God as a necessary part of homeland security, and requires it to install a plaque with specified language to that effect. The lawsuit was filed in a Kentucky state court on Tuesday. (NoGodBlog). The complaint (full text) describes the state law as being enacted in response to the 9-11 attacks on the United States "by religious fanatics in a faith-based initiative." It alleges that the statutes are violative of Section 5 of the Kentucky Constitution (Right of religious freedom), and the First Amendment as well as Article VI of the U.S. Constitution:

The challenged laws unlawfully attempt, inter alia, to establish religion, endorse belief over non-belief, set up a religious test, indoctrinate Kentucky citizens and state employees in theistic religious beliefs, and diminish the civil rights, privileges or capacities of Atheists and others who do not believe in a god, or who believe in a different god or gods than the presumed supernatural entity unconstitutionally endorsed by the legislation complained of herein.

The lawsuit seeks a declaratory judgment and damages.

Roundtable Releases 2008 Report: Legal Developments In Faith-Based Initiative

On Tuesday, the Roundtable on Religion and Social Welfare Policy announced the release of The State of the Law-- 2008, a report on legal developments affecting government partnerships with faith-based organizations. This is the seventh, and last, of the reports on the Bush Administration's Faith-Based and Community Initiative that have been written annually by Law Professors Ira C. Lupu and Robert W. Tuttle. The report's Executive Summary concludes:

Partnerships between government and faith-based organizations did not begin with the Administration of George W. Bush, but the past eight years have involved an intense effort to expand such partnerships into new shapes and programs, and those efforts have borne significant fruit. The rules governing relationships between the state and religious organizations have been refined and clarified in ways that could not have been predicted on January 20, 2001.... We very much doubt that faith-based organizations will ever again be categorically disqualified from partnering with government in delivering social services.

The Roundtable's website contains extensive additional information on the faith-based social services.

In Britain, Queen Announces Proposal To Create Single Equality Commission

In Britain yesterday, the Queen's speech to Parliament (full text) announced that the government would introduce legislation to create a single commission for equality and human rights. The proposal will consolidate nine existing anti-discrimination laws into one Equality Bill. In 2007, Britain's Ministry of Justice circulated a consultation document on this proposal. (See prior posting.) EPolitix and Pink News yesterday both discussed at greater length the provisions of the proposed new legislation. The British Humanist Association issued a release welcoming the announcement by the Queen, but urged that the law also address discrimination by religious organizations. It said: "Existing UK equality law gives religious groups power to discriminate against those who do not share their beliefs in both employment and service provision – even when they are receiving public funding – and this is one inequality that we look to the Government to address."

UPDATE: The Muslim Council of Britain on Thursday particularly welcomed the proposed provisions in the new Equality Bill that will require public bodies to consider how their spending decisions, employment practices, and service delivery can affect people according to their religion. Current law requires consideration of race, disability or gender; the new law would extend this to religion or belief, gender, age, sexual orientation and sexual reassignment. (Mathaba).

North American Conservative Anglicans Create New Church Province

Over the last several years, courts in the United States and Canada have faced numerous lawsuits involving congregations and dioceses that have broken away from the Episcopal Church or the Anglican Church of Canada. The break-away congregations are more conservative and take issue with the parent Churches' policies on issues such as same-sex marriage, ordination of women and ordination of gay clergy. Yesterday these conservatives announced the formation of the Anglican Church in North America, a competing national Province still claiming to be part of the Anglican Communion. Yesterday's San Francisco Chronicle, reporting on developments, says that it is unprecedented for an Anglican national Province to be created where any other such national church already exists. However the new Province has the support of archbishops in three African countries and Argentina. The new Anglican Church in North America must still adopt a constitution and elect leaders. A Provisional Constitution and Provisional Canons have been published.

UPDATE: Episcopal News Service reported Thursday on a statement from the London office of the Archbishop of Canterbury on the proposed new Anglican province in North America. It said in part: "There are clear guidelines..., notably [Anglican Consultative Council] resolution 12, detailing the steps necessary for ... the creation of new provinces.... Once begun, any of these processes will take years to complete. In relation to the recent announcement from the meeting of the Common Cause Partnership in Chicago, the process has not yet begun."

Egyptian Freed Pending Appeal in Case on Religion in Identity Documents

Compass Direct News reported yesterday on a case in Egypt involving forgery charges against a woman for falsely failing to list herself as a Muslim on her official identification papers, including her marriage certificate. Bahia El-Sisi says that she is a Christian. Her father converted to Islam in 1962, but reconverted to Christianity three years later. He is in prison for obtaining forged identification papers identifying him as a Christian. Only recently has there been any possiblity of legally changing identity papers to reflect such a reconversion. (See prior posting.) El-Sisi and her sister were both charged with forgery and sentenced to jail in abstentia in 2000. Her sister was freed last January. On Nov. 25, Supreme Court Judge Abdel Meged Mahmood rescinded a warrant for El-Sisi's arrest and ruled that she could remain free pending appeal of her conviction.

Maldives Blocks Access To Christian Website

In the Maldives, the restrictive Protection of Religious Unity Act prohibits dissemination of information on non-Muslim religions. (Forum 18 background.) According to Minivan News today, the Maldives Ministry of Islamic Affairs this week blocked access to a website, Sidahitun.com, which contains information about Christianity in the Dhivehi language that is spoken in the Maldives. Sheikh Ibrahim Fareed Ahmed supported the ban, saying: "Although this is an Islamic society, some Maldivians' faith in Islam is not very strong." The Maldives 2008 Constitution (Sec. 27) provides: "Everyone has the right to freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenet of Islam."

Los Angeles Jews for Jesus Leafleting Case Settled

Alliance Defense Fund announced yesterday the settlement of a challenge to leafleting restrictions imposed by the City of Los Angeles (CA) on a Jews for Jesus group. Last year, a California federal district court issued a preliminary injunction ordering police to protect Jews for Jesus members who planned to hand out literature outside an Israel Independence Day Festival, so long as they remained at a prescribed distance. (See prior posting.) Now, in a stipulated permanent injunction in Jews for Jesus v. City of Los Angeles, California, (CD CA, Nov. 12, 2008), the court issued a permanent injunction permitting Jews for Jesus to hand out literature and converse with attendees at future Israeli Independence Day Festivals, but only if they remain at least 10 yards away from the entrance gate and outside the Festival's fenced off area. Following entry of the judgment, the court, on Dec. 1, entered a Stipulation of Voluntary Dismissal.

RLUIPA Protects New York Church's Catering Activities From Adverse Zoning Action

In Third Church of Christ, Scientist v. City of New York, (SDNY, Dec. 2, 2008), a New York federal district court, applying the "equal terms provision" of RLUIPA, enjoined the city from revoking previously granted approval for a church to use its building for catering activities. The city argued that the catering activities were no longer an "accessory use." Rather they had become so extensive that use of the building as a church by the declining congregation's membership was no longer the building's primary use. The court was troubled that this interpretation would permit smaller religious groups to be treated less favorably than larger ones. Ultimately however the court said that it did not need to resolve the issue of "accessory use" because

the Equal Terms provision is squarely implicated by the City's decision to revoke its earlier granted pre-consideration for the Church when other food-service and catering businesses, associated with non-religious groups, operating in the same neighborhood as Plaintiff, also in violation of the Zoning Resolution, were given only a "Notice of Violation."

Finding that the 2nd Circuit had not interpreted the RLUIPA's equal terms provision, the court held that under either the 3rd or 11th Circuits' competing interpretations, Plaintiff would prevail. The court also expressed concern over the City's policy of investigating zoning violations only when a complaint is filed. This can lead to "unfair targeting of unpopular groups." Yesterday's New York Times reported on the decision. (See prior related posting.)

Capitol Visitor Center Opens With Objection To Lack of Religious References

Yesterday, the $621 million U.S. Capitol Visitor Center, over-budget and behind schedule, opened to the public. (Washington Post.) South Carolina Republican Senator Jame DeMint almost delayed the opening further, according to the McClatchy Newspapers yesterday. DeMint complains that the Center "fails to appropriately honor our religious heritage that has been critical to America’s success." (DeMint Press Release.) Problems began when, on a preview tour, DeMint discovered that a panel on a wall incorrectly identified "E Pluribus Unum", rather than "In God We Trust" as the national motto. The chairman and the ranking member of the Senate Rules and Administration Committee have agreed to support removal of the erroneous reference to "Our Nation's Motto" (which has been temporarily plastered over), and to adding engravings of "In God We Trust" and the Pledge of Allegiance in prominent locations in the Visitor Center. DeMint says:

While the Architect of the Capitol has pledged to include some references to faith, more needs to be done.... The current ... displays are left-leaning and in some cases distort our true history. Exhibits portray the federal government as the fulfillment of human ambition and the answer to all of society’s problems. This is a clear departure from acknowledging that Americans' rights 'are endowed by their Creator' and stem from 'a firm reliance on the protection of Divine Providence.'

DeMint particularly objects to the engraving near the entrance reading: "We have built no temple but the Capitol. We consult no common oracle but the Constitution."

Fired Human Resources VP Who Disputed Gay Rights Sues University

The Toledo Blade reports that on Monday a federal lawsuit was filed against the University of Toledo by its former Associate Vice-President for Human Resources, Crystal Dixon. Dixon was fired after she wrote a column for a local newspaper arguing that gays and lesbians are not "civil rights victims." (See prior posting.) The complaint (full text) alleges that "Plaintiff, an African-American woman and sincere practicing Christian, believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic...."

The lawsuit alleges that Dixon's column expressed her personal views, and that her firing infringes her 1st Amendment free speech rights. The complaint also claims equal protection violations, arguing that other University personnel have been permitted to speak out on political and social issues without consequences. Richard Thompson of the Thomas More Law Center who represents Dixon said that homosexuals have an "inordinate amount of influence" over University president Lloyd Jacobs. The University claims that Dixon's human resources position was one of special sensitivity, and that her ability to perform that job was undermined by her statements.

Orthodox Church Wants Russia To Outlaw Satanism and Church Desecration

Concerned with Satanist symbols, swastikas and inverted stars being scratched on church walls, a Russian Orthodox Church official has called on Russia to adopt a statutory ban on Satanism. Interfax reported yesterday that Archpriest Vsevolod Chaplin, deputy chairman of the Moscow Patriarchate Department for External Church Relations, also wants a law banning desecration of religious shrines. Chaplin says Satanism leads to murder, animal abuse and desecration of churches and graves.

Court Says No Free Exercise Problem In Homicide Charges Against Parents

In Wausau, Wisconsin, a trial court judge ruled Monday that Dale and Leilani Neumann's free exercise and due process rights are not violated by prosecuting them for reckless homicide. AP reports that the parents are charged with praying for the recovery of their 11-year old daughter instead of getting her medical assistance as required by law. She died of untreated diabetes. The court's opinion stated that the parents' "right to transfer religious belief into conduct must yield to neutral, generally applied criminal statutes designed to protect public safety." The court ruled, however, that if it is shown that the parents "genuinely believed that prayer alone would save their daughter and that she was in no danger of dying without medical care, then they could not be found criminally negligent." The court also ruled that the exclusion of treatment by prayer from the state's child abuse statute did not preclude fair notice to the parents that the homicide law could still cover their behavior.

Australian Court Is Asked To Order Police Investigation of Religious Group

In Australia, three women, former members of the Christian Exclusive Brethren movement, have petitioned the Federal Court seeking to have it issue a writ of mandamus to force government authorities to investigate the religious group. The Age (Melbourne) today reports that the petitioners, three sisters, say they are on the run from the sect that they accuse of trafficking, debt bondage and cultural genocide. Justice Tony North urged petitioners, who appeared pro se, to obtain an attorney. When they said they could not afford one, North said he would attempt to have the Law Institute furnish a lawyer free of charge. Melbourne's Herald Sun yesterday, reporting on the case, said that the Exclusive Brethren is very controversial in Australia because of allegations that it used its wealth to prevent the Senate from investigating it. The court petition raises questions of whether the Federal Court has jurisdiction to order the Federal Police to investigate allegations of crime.

Massachusetts High Court Lets Rastafarian Go To Trial Against Jiffy Lube

In Brown v. F.L. Roberts & Co., Inc., (MA Sup. Jud. Ct., Dec. 2, 2008), the Massachusetts Supreme Judicial Court rejected defendant's motion for summary judgment and ordered to trial a case in which a Rastafarian sought an exemption from an employer's grooming policy. Plaintiff, Bobby Brown, alleged religious discrimination in violation MGL c. 151B, § 4(1A) after Jiffy Lube told the lube technician that he could only work in the lower bay, where there was no customer contact, because he wore a beard and long hair. The statute requires an employer to accommodate an employee's religious practices unless accommodation would impose an undue hardship. The court held that Jiffy Lube must show more than merely a non-economic cost to its image to prove undue hardship. It also held, however, that Jiffy Lube is entitled to a trial on whether working in the lower bay was a reasonable accommodation of Brown's religious needs. The Quincy Patriot Ledger and the AP report on the case.

Cuba Improves Relations With Vatican As Castro Attends Beatification Mass

NBC News reported yesterday that Cuba's government has taken an important step toward improving relations with the Catholic Church. Last week end, Cuban President Raul Castro sat in the front row at a 3-hour mass beatifying Cuban Friar Jose Olallo Valdes. The 19th century friar is known as "father of the poor."

Religion Clause Nominated As One of "100 Best" By ABA For Second Year

I am pleased to announce that Religion Clause has been nominated by the editors of the ABA Journal as one of the 100 best legal blogs for 2008. (ABA press release.) Religion Clause is one of only 50 blawgs that have been nominated to the list of the "100 best" two years in a row. Until January 2, you can vote online for the best blog in each of the ABA's ten categories. Religion Clause is nominated in the "Niche" category, along with 14 other great blawgs. To vote for the best in the Niche category, click here. To vote in all of the categories, click here.

Limitation on Church Attendance Does Not Violate Parolee's Free Exercise Rights

In Burchett v. Bromps, 2008 U.S. Dist. LEXIS 96920 (ED WA, Nov. 20, 2008), a Washington federal district court rejected a free exercise challenge to the conditions of his community release brought by a pedophile sex offender. Donald Burchett, whose offense was committed at a church, was required to obtain permission of his parole officer in order to go within three blocks of a church. This specific requirement was imposed after the parole officer received a complaint from a pastor that Burchett was harassing a female member of the congregation. The court held:

The limitation placed on Mr. Burchett by the stipulated Agreement did not represent a substantial burden on the observation of a central religious belief or practice, and cannot be considered anything more than an inconvenience. Mr. Burchett could still attend church if he so desired; he merely had to seek permission before doing so.... The government has a compelling interest in making sure the community is protected from pedophile sex offenders.

Anti-Religion Sign Is Next To Creche In Capitol Under Open Forum Rules

Last October, the Alliance Defense Fund settled a suit it had brought against Washington state on behalf of private citizen Ron Wesselius who wished to put up a Nativity Scene in the state Capitol building next to a menorah and holiday tree that were previously approved. Under the settlement (see prior posting), Capitol campus facilities would be made available for public use on a non-discriminatory basis. Yesterday's Seattle Times reports that, taking advantage of that open forum designation, the Freedom from Religion Foundation has put up a sign for December at the Capitol reading in part: "Religion is but myth and superstition that hardens hearts and enslaves minds." Because a similar sign placed in the Wisconsin capitol is frequently turned around by those who object to it, the Washington sign has an inscription on the back: "State/Church; Keep Them Separate." A Nativity scene is also being put up near the sign by Ron Wesselius, plaintiff in last year's settled case.

Marijuana Conviction Upheld; Religious Freedom Defense Rejected

In People v. Rubin, (CA Ct. App., Dec. 1, 2008), a California state appellate court upheld a defendant's conviction for selling marijuana and possessing it for sale. The court rejected his argument that the Free Exercise clause of the state and federal constitutions protected his activity. Defendant Craig X. Rubin was the owner of Temple 420, a church in which members could buy various sorts of marijuana. Rubin, ordained online as a minister of the Universal Life Church, even planned to make marijuana available in the church through vending machines. The court rejected Rubin's argument that he was denied a fair trial because he was not allowed to refer to the federal Religious Freedom Restoration Act. The court also rejected Rubin's 1st Amendment defense, saying he was prosecuted for selling and possessing marijuana, not for its religious use. Finally the court rejected Rubin's claim that it should have instructed the jury on mistake of law. (See prior related posting.) [Thanks to Robert H. Thomas for the lead.]

Zimbabwe Court Protects Apostolic Sect From Local Chief

In Zimbabwe, a High Court judge has ruled in favor of the Friday Apostles Johane Masowe Ye Chishanu sect in their lawsuit against Chief Clement Nembire in Mt. Darwin. The background is found in an article from last month in Zimbabwe's Herald. Nembire claimed that the sect, led by Madzibaba Reuben Tapedza, keeps its children out of schools, denies them hospital treatment, and marries off underage children. The sect denied the charges and agreed to protect the rights of children. Nevertheless, Nembire prohibited the sect from engaging in any worship activities in his chiefdom, destroyed its shrine and barred members from meeting together. Nembire threatened violence and murder against anyone who violated these orders. Yesterday's Herald reports that the High Court has now barred Chief Nembire from interfering with the sect's right to worship, and with its members' use of their homes and land. The court ruled that citizens have a right to live free from harassment. The sect was represented by Zimbabwe Lawyers for Human Rights.

Wyoming Prisons Will Accommodate Muslim Prisoner Meal Times

The Jackson Hole (WY) Star Tribune reported last month that the Wyoming Department of Corrections has adopted a new policy to accommodate the religious needs of Muslim inmates. The new policy was agreed to in order to settle a lawsuit filed by the ACLU on behalf of two prisoners. It challenged a rule requiring inmates to eat their meals within 20 minutes of delivery. This mandate often interfered with Muslim prayer times. Now prisoners receiving religious meals will be permitted to keep the meals in their cells until the next meal is served. Those eating in dining halls will also get timing adjustments. Special arrangements will be made for Muslim prisoners to obtain meals when religious fast periods end. Finally, the settlement also requires the prison to install a new microwave oven that will be used only for pork-free food.

Mumbai Muslim Cemetery Refuses To Bury Terrorists; Police Seeking Alternatives

In India, at least one Muslim cemetery is refusing to bury the bodies of the slain Mumbai terrorists. Yesterday's London Times reports that the Jama Masjid Trust said it will not bury the men in its Badakabrastan graveyard because they could not be true followers of Islam. It says that no follower of Islam would be permitted to commit such barbaric crimes. A senior police inspector says: "we are bound to see that their last rites are performed according to the religion they follow. We have heard the trust's decision. We are considering what to do now." There are seven other Muslim cemeteries in Mumbai. However it is anticipated that they will follow the lead of the influential Jama Masjid.

President Bush Talks About Faith In His Life

On Friday, the White House posted on its website excerpts from the interview of President Bush and First Lady Laura Bush by Doro Bush Koch for StoryCorps. Here is one exchange:

Q What role does faith play in your day-to-day life?

THE PRESIDENT: I've been in the Bible every day since I've been the President, and I have been affected by people's prayers a lot. I have found that faith is comforting, faith is strengthening, faith has been important....

I would advise politicians, however, to be careful about faith in the public arena. ...In other words, politicians should not be judgmental people based upon their faith. They should recognize -- as least I have recognized I am a lowly sinner seeking redemption, and therefore have been very careful about saying (accept) my faith or you're bad. In other words, if you don't accept what I believe, you're a bad person.

And the greatness of America -- it really is -- is that you can worship or not worship and be equally American. And it doesn't matter how you choose to worship; you're equally American. And it's very important for any President to jealously protect, guard, and strengthen that freedom.

Pope To Visit Israel In May To Ease Catholic-Jewish Tensions

Haaretz reported last week that Pope Benedict XVI will visit Israel and the Palestinian Territories in May. The visit is designed to reduce some of the tension of recent weeks over the timing by the Vatican in moving toward the canonization of Pope Pius XII. Many Jews say that Pius XII failed to protest the murder of Jews during the Holocaust and did not intervene when Jews were deported from Rome to Auschwitz. Pope Benedict and many other Catholics contend that Pius did help save many Jews during World War II. Benedict is considering a request to delay the canonization process until all the Holocaust-related documents in the Vatican archives are released-- probably in about 7 years. Some conservatives in the Vatican however want the canonization process sped up.

Recent Articles and Book of Interest

From SSRN:

• Frederick Mark Gedicks, Indeterminacy and the Establishment Clause, (Constitutional Commentary, 2009).

FromSmartCILP:

• Mark DeForrest, The Use and Scope of Extrinsic Evidence in Evaluating Establishment Clause Cases in Light of the Lemon Test's Secular Purpose Requirement, 20 Regent University Law Review 201-255 (2007-2008).


• Gary S. Gildin, Book Review: The Protection of Free Exercise of Religion for Minority Faiths, (Reviewing Bruce Ledewitz, American Religious Democracy), 14 Widener Law Review 255-264 (2008).


• The Role of Religion in Public Debate. Introduction by Hon. Diane S. Sykes; articles by James W. Skillen, Robert Audi and Hon. Michael W. McConnell; response by Kent Greenawalt. 20 Regent U. L. Rev. 301-335 (2007-2008).

Recent Book:

• Phillip F. Lawler, The Faithful Departed: The Collapse of Boston’s Catholic Culture, (Encounter Books, Feb. 2008), reviewed on PowerBlog.

Religious Coalition Presses For New Policies On Mortgage Foreclosures

Saturday's Washington Post reports that a coalition of 1000 religious congregations, operating under the label PICO National Network, is attempting to change national economic policies in a way that prevents mortgage foreclosures. The group, which recently held a "prayer rally" outside of the Treasury Building, wants a requirement that every bank receiving federal bailout money must agree to a uniform set of loan-modification procedures. Mortgage payments would have to be set at no higher than 34% of income, and in some cases principal on loans would be reduced. Many congregations say that members are turning to them for help when they are hit by the current financial crisis.

Infringing Confession's Confidentiality OK Under Australia's Free Exercise Clause

In SDW v Church of Jesus Christ of Latter-Day Saints, (NSW Sup. Ct., Nov. 27, 2008),the Supreme Court of the Australian state of New South Wales held that the statute of limitations had run on a claim by a woman who contended that the Mormon Church breached a duty of care it owed to her. The woman had, as a teenager, been sexually molested by her stepfather, who was excommunicated from the Church as a result. Plaintiff now claims that the Church had a duty to protect her against further molestation by, among other things, reporting her step-father to child protection or police authorities. In the course of its decision, the Court held that a law overriding the confidentiality of a religious confession is not an unconstitutional infringement of the free exercise of religion that is protected by Australia's Constitution, Sec. 116. The court found that this free exercise argument was so unmeritorious that it refused to include costs associated with presenting the argument in those costs assessed against plaintiff. Australia's Herald Sun reported on the decision last week.