Religion Clause

Wednesday, October 21, 2009

6th Circuit Hears Oral Arguments In Long-Running 10 Commandments Case

The 6th Circuit yesterday heard oral arguments in the long running 10-Commandments case, ACLU of Kentucky v. McCreary County. In 2005, the U.S. Supreme Court upheld a preliminary injunction barring the a display of the Ten Commandments along with other historical documents that refer to God in two Kentucky county courthouses. A majority concluded that the displays violated the Establishment Clause because the predominant purpose of the displays was the advancement of religion. (See prior posting.) However Justice Souter added: "we do not decide that the Counties' past actions forever taint any effort on their part to deal with the subject matter." Meanwhile the counties put up yet a third display, a broader "Foundations of American Law and Government" display that included the Ten Commandments along with other historical documents. On that basis, on remand the district court refused to issue a permanent injunction, but also refused to find that the counties had purged themselves of their original religious motivation. (See prior posting.) The Cincinnati Enquirer says that yesterday's oral arguments in the 6th Circuit focused on whether the counties have done enough to eliminate their original religious motivation.

Tentative Settlement Reached in "Flying Imams" Case

Fox News reported yesterday that a tentative settlement has been reached by all parties in the so-called "flying imams" case. The lawsuit, filed by six Muslim clergy against US Airways and the Minneapolis-St. Paul Metropolitan Airport Commission, alleged false arrest, unreasonable search and seizure and equal protection violations. The six plaintiffs were removed from a U.S. Airways flight in 2006 as they were returning from the North American Imams Federation conference held in Minneapolis. (See prior posting.) Details still need to be worked out in the settlement agreed to by the parties on Monday, and federal court approval is still required. None of the parties would comment on specifics of the settlement.

Tuesday, October 20, 2009

Vatican Invites Conservative Anglicans Into New Affiliation

Surprise developments today out of Rome, London and Washington create new possibilities for dissident Episcopal congregations that are increasingly splitting off from ECUSA and affiliating with new more conservative Anglican provinces. (See prior related posting.) The Vatican's Congregation for the Doctrine of the Faith announced:

[T]he Catholic Church is responding to the many requests that have been submitted to the Holy See from groups of Anglican clergy and faithful in different parts of the world who wish to enter into full visible communion.... [T]he Holy Father has introduced a canonical structure that provides for such corporate reunion by establishing Personal Ordinariates, which will allow former Anglicans to enter full communion with the Catholic Church while preserving elements of the distinctive Anglican spiritual and liturgical patrimony. Under the terms of the Apostolic Constitution, pastoral oversight and guidance will be provided for groups of former Anglicans through a Personal Ordinariate, whose Ordinary will usually be appointed from among former Anglican clergy.

Bloomberg News characterizes the new initiative as a way "to integrate disaffected Anglicans and enable the faith's married priests to become Roman Catholic clerics." In London, Roman Catholic Archbishop Vincent Nichols of Westminster and Anglican Archbishop Rowan Williams issued a joint statement saying that today's announcement from the Vatican "brings to an end a period of uncertainty for such groups who have nurtured hopes of new ways of embracing unity with the Catholic Church." However, writing in the London Telegraph, Jonathan Wynne-Jones says this about the developments:

Interestingly, the archbishop says that "this new possibility is in no sense at all intended to undermine existing relations between our two communions or to be an act of proselytism or aggressions". He is either putting on a brave face for the sake of Anglican pride, being incredibly naive or had this part dictated to him by somebody in Rome. For there is no way that this won't undermine the archbishop’s position and weaken the Church of England.

Meanwhile in the United States, the head of the U.S. Conference of Catholic Bishops quickly issued a statement from Washington saying in part:

Today the United States Conference of Catholic Bishops has received word of the new Provision in the form of an apostolic constitution issued by the Holy See for the reception into full communion with the Catholic Church of groups from the Anglican tradition. The USCCB stands ready to collaborate in the implementation of that Provision in our country.

The New York Times reports on today's news conference held in the Vatican by Cardinal William Levada, the prefect for the Congregation for the Doctrine of the Faith:

Asked at the Vatican news conference what would happen if an Anglican congregation led by a woman priest wanted to join the Catholic Church, Cardinal Levada smiled and said, “I would be surprised” if that happened.

Justice Kennedy Reinstates Injunction Against Release of Petition Signers' Names

Yesterday, U.S. Supreme Court Justice Anthony Kennedy issued an order (full text) reinstating the preliminary injunction issued by a federal district court in Washington state in John Doe #1 v. Ried. The injunction bars release of the names of signers of referendum petitions seeking to overturn a recently-enacted state domestic partnership law. The 9th Circuit last week reversed the district court (see prior posting), and plaintiffs seeking to prevent release of the names immediately petitioned Justice Kennedy. The full text of both appellants' application to Kennedy and the response by Washington's Secretary of State are available online. AP reports on the case, and Eugene Volokh weighs in on the latest developments.

UPDATE: On Tuesday, the full Supreme Court (Justice Stevens dissenting) confirmed Justice Kennedy's reinstatement of the district court's preliminary injunction, "pending the timely filing and disposition of a petition for a writ of certiorari." (Full text of order.) [Thanks to Eugene Volokh for the lead.]

South Carolina Republican Officials Use Anti-Semitic Stereotypes

A letter to the editor published in Sunday's Orangeburg (SC) Times and Democrat from the chairmen of two South Carolina County Republican Party organizations reflects, at the very least, insensitivity to the anti-Semitic nature of comparisons they draw. Defending South Carolina U.S. Senator Jim DeMint's opposition to earmarks in budget bills, Bamberg County chairman Edwin O. Merwin Jr. and Orangeburg County chairman James S. Ulmer Jr. wrote:

There is a saying that the Jews who are wealthy got that way not by watching dollars, but instead by taking care of the pennies and the dollars taking care of themselves. By not using earmarks to fund projects for South Carolina and instead using actual bills, DeMint is watching our nation’s pennies and trying to preserve our country’s wealth and our economy’s viability to give all an opportunity to succeed.

JTA reports on the letter, quoting a conservative website in the state (The Palmetto Scoop) that said remarks like these "make many folks fear for the future of the once Grand Ole Party."

UPDATE: AP reported on Tuesday that the two county Republican officials have apologized for their remarks. Ulmer's apology was straight forward; however the apology from Merwin still suggested he did not understand the history of the stereotype he invoked. He said his original statement was was "truly in admiration for a method of bettering one's lot in life" and he meant nothing derogatory.

Opposing Religious Coalitions Active On Maine's Same-Sex Marriage Ballot Issue

Yesterday' Bangor (ME) Daily News reports on religious coalitions on opposing sides of Maine's Question 1-- a referendum on the November ballot that would overturn a law passed earlier this year permitting same-sex couples to marry. (See prior posting.) The Religious Coalition for the Freedom to Marry in Maine held rallies around the state on Sunday to urge a "No" vote on Question 1. Rev. Bob Emrich, founder of the Maine Jeremiah Project which opposes same-sex marriage and urges a "yes" vote on the referendum, says the issue is not discrimination, but redefining marriage.

Asst. Secretary of State for Democracy, Human Rights and Labor Sworn In

Yesterday, the new head of a little-known bureau within the State Department was formally sworn in, though he has been on the job for over three weeks. Michael Posner was sworn in as Assistant Secretary of State for Democracy, Human Rights, and Labor. Posner previously served as president of Human Rights First. In her remarks (full text) at the ceremony, Secretary of State Hillary Clinton described the work of the Bureau: "It trains NGOs and civil society leaders to try to turn the principles of democracy into practice, to combat violence and discrimination against women and minorities, to promote interfaith dialogue and fight exploitation in the workplace." Posner's actual confirmation by the Senate was Sept. 22, and immediately afterwards he led the first U.S. delegation to the UN Human Rights Council, sponsoring with Egypt a compromise resolution on freedom of expression and religion. (See prior posting.)

Smithsonian Will Add Evolution Exhibit; Explore Religion and Science

USA Today reported last week that the Smithsonian's Natural History Museum will open a new 15,000 square foot permanent exhibit next March on the "discovery and understanding of human origins." The Museum has also created a Broader Social Impacts Committee to address the interaction between religion and science. However Jim Miller, co-chair of the committee and an official with the Presbyterian Association on Science, Technology and the Christian Faith, says that the evolution exhibit is "a scientific exhibit so it's not there to make a religious point." But, he says, he hopes the new exhibit, which opens on the 100th anniversary of the Museum on the National Mall, will provide an opportunity "for sound scientific discovery to enrich religious experience." [Thanks to Institute on Relig. & Public Policy for the lead.]

Monday, October 19, 2009

Wilmington Catholic Diocese Files For Chapter 11 Protection

Last night, the Catholic Diocese of Wilmington (covering Delaware and Maryland's Eastern Shore) became the seventh U.S. Catholic diocese to seek Chapter 11 bankruptcy protection. The filing delays the trial that was scheduled to start today in a clergy sex abuse case against the diocese. AP reports that today's case was the first of over 100 filed under a 2007 Delaware law that gave victims a 2-year window to file even though the prior statute of limitations had run. (See prior posting.) In the bankruptcy filing, the diocese listed its assets as between $50 million and $100 million, with liabilities between $100 million and $500 million. Since 2002, the diocese has paid out $6.2 million to settle clergy sex abuse lawsuits, and additional undisclosed amounts to victims who did not file suit.

UPDATE: According to Thursday's Wilmington News Journal, attorneys for clergy abuse victims will ask the bankruptcy court to include property of the parishes along with diocesan property as assets in the bankruptcy proceeding. The Diocese is incorporated under Delaware's nonprofit corporation law, while each parish is individually incorporated under either the Delaware or Maryland statue relating to religious societies or religious corporations.

IRS Receives Comments On Proposed Church Audit Rule Change

Today's BNA Daily Report for Executives [subscription required] summarizes four sets of comments the Internal Revenue Service has received on proposed changes in its Regulation governing which official has authority to authorize church tax inquiries. (See prior posting.) The proposal is designed to clarify the confusion over who has that authority after a 1998 IRS reorganization. Comments from D.C. attorney Marcus Owens object to the IRS conclusion that the authority should be given to the Director of Exempt Organizations. He urges that the authority should be vested in an official who has experience in making high-level sensitive policy decisions and who does not have church tax compliance as a significant part of his responsibilities.

British MPs Want Christian References Removed From Constitutions of Territories

Sunday's London Mail reports on efforts by the Foreign Affairs Committee of Britain's Parliament to have references to Christianity removed from the Preambles of the Constitutions of two British territories. Beginning in 1999, the British Foreign Office initiated efforts to have territories under British sovereignty update their Constitutions. However, when Parliament's Foreign Affairs Committee saw the redrafts from two territories, it raised objections. On the Cayman Islands draft, the Committee wrote in a letter to the Commonwealth Office:

we consider it inappropriate that both the preamble and the main text contain specific reference to the Christian religion and "Christian values". This gives the impression, even if it is a misleading one, that Christians will be granted more favourable treatment under the Constitution than people of other faiths or of none. Second, we regret the absence of explicit mention of sexual orientation as a prohibited ground for discrimination in clause 16.

In examining the draft of the proposed Constitution from St. Helena, Ascension Island and Tristan da Cunha, the Committee objected to a reference to "Christian and family values" in the Preamble. However in a letter, the Commonwealth Office said that other provisions in the document assure protections against religious discrimination. Meanwhile church leaders in Britain criticized Parliament for its concern with "spurious political correctness."

U.S. Attorney General Speaks On Hate Crimes

U.S. Attorney General Eric Holder addressed the Anti-Defamation League's 2009 American Heritage Dinner in Las Vegas Saturday night. His address (full text) focused primarily on hate crimes, including anti-Semitism which is one of the ADL's primary concerns. Holder hailed the fact that expanded hate crimes legislation is about to pass in Congress. (See prior posting.) He said that "on the day that it becomes law, we will hasten to begin using it." Then focusing on problems being faced by Muslim-Americans, he said:

Crimes against Muslims and those perceived to be Muslim have escalated dramatically since September 11th. Some hate-mongers seem to have adopted the twisted logic that an attack on innocents can somehow be avenged by another attack on innocents.... I have heard from Muslim Americans who feel uneasy about their relationship with our government, who feel isolated and discriminated against by law enforcement. They report feeling denied the full rights of citizenship and also, just as importantly, the full responsibilities of citizenship.

I realize that we can become emotionally overwhelmed by acts of terror committed in the name of Islam. We can, perhaps, fail to see that virtually all Muslim Americans are, just like us, trying to do what all Americans wish to do - lead fulfilling, honorable lives, raise their children, love their families, support their communities, and serve their country. The tension that arises among citizens of different faiths, and between government and citizens of a particular faith, is unacceptable to me. It is inconsistent with what America is all about.

Cyprus Benefits From No Civil Marriage Laws In Israel and Lebanon

AP yesterday reported on the thriving civil marriage industry in Cyprus, catering to residents of Israel and residents of Lebanon. In both of those countries, civil marriage does not exist and religious authorities will not perform interfaith marriages. In Israel the Orthodox rabbinate is particularly strict in determining who is Jewish for purposes of marriage. Last year, 523 couples from Lebanon and 1,533 from Israel were married in Cyprus.

Sunday, October 18, 2009

9th Circuit: Names of Referendum Petition Signers Can Be Released

Last month, a federal district court in Washington state enjoined release of the names of individuals who signed petitions supporting a referendum to overturn a recently-enacted state domestic partnership law. The Public Records Act request for the documents had been filed by two gay rights groups that wanted to be able to contact the signers to complain about their support for the referendum. (See prior posting.) In an order issued last Thursday, the 9th Circuit in John Doe #1 v. Ried, (9th Cir., Oct, 15, 2009), cleared the way for release of the names, holding that the district court had relied on an "incorrect legal standard" in granting the preliminary injunction. It said that "an opinion setting forth the reasons for the court’s reversal of the Preliminary Injunction Order shall be issued expeditiously and in due course." The Seattle Times reported Thursday that Protect Marriage Washington, the group supporting the referendum, will seek en banc review of the 3-judge panel's reversal of the injunction. Meanwhile, according to the Seattle Post-Intelligencer, there is still a temporary restraining order outstanding from a state court barring release of the information about petition signers. [Thanks to Alliance Alert for the lead.]

Canadian Court Decides Dispute Between Church Factions Over Control of Funds

Ethiopian Orthodox Church of Canada v. Hohite Semay St. Mary Ethiopian Orthodox Tewahido Church, (BC Sup. Ct., Oct. 9, 2009), involved a dispute over which of two factions in a Vancouver congregation in the Canadian province of British Columbia was entitled to control over $280,000 of church funds. The congregation was made up primarily of immigrants from Ethiopia and Eritrea whose first language is Amharic. The dispute grew out of the firing of the congregation's priest and inaccurate corporate filings when the congregation was created that had initially registered the congregation in the name of the Toronto-based Ethiopian Orthodox Church of Canada. That Church, as plaintiff, is aligned with the smaller of the two factions in the congregation. The British Columbia Supreme Court (as a trial court) held: "the conduct of the parties shows that there was never any intention that the funds raised by and for the benefit of members of the Vancouver Church were for the beneficial ownership of the plaintiff.... The plaintiff is not, and never was, the owner of the funds at issue."

Recent Prisoner Free Exercise Cases

In Putzer v. Donnelly, 2009 U.S. Dist. LEXIS 94467 (D NV, Oct. 9, 2009), a federal district court adopted a magistrate's recommendation to deny a preliminary injunction (2009 U.S. Dist. LEXIS 94472, Aug. 17, 2009). A Jewish prisoner, alleging RLUIPA and 1st Amendment violations, objected that he was not permitted to attend a candle-lighting ceremony on Friday evenings just before sundown, in celebration of the Sabbath.

In Albrecht v. Williams, 2009 U.S. Dist. LEXIS 95070 (D NJ, Oct. 13, 2009), a New Jersey federal magistrate judge found that there were factual disputes that precluded summaryjudgement for either side ina suit by a Catholic prisoner who complained that he was disciplined for refusing to work at his prison job on Sundays, while accommodations were made for Jews, Muslims and Seventh Day Adventists to avoid work on their Sabbaths.

In Henderson v. Hubbard, 2009 U.S. Dist. LEXIS 95652 (ED CA, Sept. 25, 2009), a California federal district court refused to issue a preliminary injunction granting a Muslim prisoner conjugal visits. Plaintiff claimed that his religious faith mandates sexual intercourse with his spouse.

In Nixon v. Brown, 2009 U.S. Dist. LEXIS 95610 (SD FL, Oct. 14, 2009), a Florida federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 95615, Sept. 18, 2009) finding that a former prisoner sufficiently stated a claim that he was prevented from worshiping and that his Kufi cap was confiscated. However his claim for declaratory and injunctive relief is now moot and he is not entitled to recover damages for emothonal injury unaccompanied by physical injury.

In State of Vermont v. Hall, (VT Sup. Ct., Oct. 8, 2009), the Vermont Supreme Court held that an inmate's free exercise rights are not violated by requiring him to submit a DNA sample.

Saturday, October 17, 2009

Tax Liens Complicate Efforts To Reform FLDS UEP Trust

Saturday's Salt Lake (UT) Tribune reports that growing numbers of tax liens are complicating the work of the Utah court-appointed trustee of the FLDS United Effort Plan Trust. The trust holds land in Colorado City, AZ and Hildale, UT on which FLDS members, many in polygamous relationships, live. A combination of misunderstandings, disagreements and complexity has led to taxes not being paid on many properties in Colorado City, as trustee Bruce Wissan still seeks to remove the religious elements from the trust and allocate some land to former FLDS members who left or were expelled from the Church. (See prior posting.) Tax liens have been filed on homes, businesses and school buildings, vacant land and a 54-acre community park and zoo. In February, tax liens on 35 large communal properties were sold at auction, giving the buyers the right to foreclose if back taxes are not paid within three years. Part of the problem is that non-FLDS members placed on land by the trustee have not paid their share of communal taxes. Also Wissan has not applied for tax exemptions for some of the properties that previously had exemptions. Furthermore, some tax lien sales stem from unpaid taxes on only a small portion of a communal lot.

UPDATE: Sunday's Dallas Morning News has a long article that more broadly reviews the unexpected problems being faced being faced by the state of Utah in its attempts to reform the UEP Trust.

Canadian Court Hands Down Decision In Botched Ritual Circumcision Case

In Canada, the Supreme Court of British Columbia (which is the province's superior trial court) this week ruled that the Crown had proved the elements of criminal negligence in the case of a man who performed a botched ritual circumcision on his 4-year old son. It ruled that the defense can now proceed with its claim that the father is entitled to a constitutional exemption because the circumcision was motivated by defendant's desire to fulfill his religious duty. The opinion in Regina v. D.J.W., (BC Sup. Ct., Oct. 14, 2009), contains rather graphic descriptions of the facts underlying the case.

The exact nature of the accused's religious beliefs is not clear. He is not Jewish, but follows both the Old and New Testaments of the Bible. He believed that it was necessary to circumcise his son before Passover. Counsel argued that defendant was entitled to relief in the nature of a constitutional exemption under s. 24(1) of the Charter of Rights and Freedoms. Wednesday's Vancouver Sun reports on the decision.

British National Party Agrees To Eliminate Racial Membership Limits

Thursday's London Telegraph reports that the British National Party has agreed to settle a complaint brought against it in August by Britain's Equality and Human Rights Commission. The party's Constitution (full text) limits membership to those who descend from indigenous Caucasian British ethnic groups. The Commission charged that this violates Britain's Race Relations Act. (EHRC Letter Before Claim to BNP). In settling the case, the BNP has agreed to use "all reasonable endeavours" to revise its constitution to eliminate discrimination on the basis of "protected characteristics" including race, gender and religious belief. The court gave party leader Nick Griffin ten days to submit a signed agreement undertaking to present party members with a revised constitution at the BNP's general meeting next month.

Plaintiff Who Challenged Teacher's Remarks Now Speaks At Republican Fund Raisers

Earlier this year, California high school student Chad Farnan and his parents won a mixed victory in a lawsuit against Chad's former high school history teacher James Corbett. They alleged that Corbett made comments in class hostile to religion, particularly to Christianity. A federal court found that one of the teacher's comments violated the Establishment Clause, but on various grounds denied any sort of relief. (See prior posting.) Now, according to yesterday's Orange County (CA) Register, 17-year old Farnan is speaking at fund raisers for Republican candidates. At an event for Shawn Black, a candidate for the 70th Assembly District in Orange County, Farnan told the audience: "Now is the time to fight back, so our rights as Christians and conservatives can be taken back." The fundraiser's master of ceremonies told the audience: "We need to pray for [Farnan] because he is under attack for his faith." The Capistrano Valley High School senior has given about ten fund raising speeches since May.

Friday, October 16, 2009

Group Challenges Constitutionality of IRS Parsonage Allowance Provisions

The Freedom from Religion Foundation and 21 of its members, represented by Michael Newdow, filed a federal lawsuit today challenging the constitutionality of two provisions of the Internal Revenue Code that give special tax deductions to "ministers of the gospel." the complaint (full text) in Freedom from Religion Foundation v. Geithner, (ED CA, filed 10/16/ 2009) alleges that Sections 107 and 265(a)(6) of the Revenue Code violate the Establishment Clause by discriminating against secular organizations and excessively entangling the government with religion because determinations whether the sections apply turn on religious criteria and inquiries.

Section 107 exempts from income the rental value of a parsonage, or the amount of a parsonage allowance, furnished to a "minister of the gospel." Section 265(a)(6) allows a minister of the gospel to claim deductions interest and property taxes, even though the money used to pay such amounts was received from a church in the form of a tax-exempt §107 allowance. The concern is not a literal interpretation of "minister of the gospel"-- courts have not limited application of these IRS regulations to Christian denominations. (Background). Instead the objection is to the requirement that to be deductible, the parsonage allowance must be received as compensation for service performed in the exercise of a religious ministry. This requires an examination of whether the clergy person is performing religious worship or conducting the activities of a religious organization.

The lawsuit also challenges Sections 17131.6 and 17280(d)(2) of the California Revenue and Taxation Code which track the federal provisions being challenged. ABC News 10 reported on the lawsuit.

Colbert's Satirical Review of Arguments In Sunrise Rock Cross Case

There has been much commentary on last week's oral arguments before the Supreme Court in Salazar v. Buono-- the case involving the Sunrise Rock Cross located in the Mojave Preserve war memorial . (See prior posting.) In paticular pundits have focused on Justice Scalia's questioning. (St. Louis Post Dispatch.) Stephen Colbert's satirical take on the arguments is among the more interesting reactions to Scalia. Thanks to Don Byrd for pointing out this video clip:

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President Attends White House Diwali Celebration

According to the Washington Post, on Wednesday, President Obama became the first U.S. President to attend a celebration of the Diwali holiday in the White House. While the White House Diwali celebration tradition began during the George W. Bush Administration, previously only cabinet members and White House staff attended. Diwali is celebrated by Hindus, Sikhs, Jains and Buddhists, although with different traditions in each religion. The White House blog has also posted an account of the President's participation in the ceremony, along with a video greeting extending holiday wishes. At the ceremony the President lit the White House diya (earthen lamp) which is traditional for the festival. He also signed an executive order (full text)reestablishing the Initiative on Asian Americans and Pacific Islanders and setting up an Advisory Committee on Asian Americans and Pacific Islanders.

Supreme Court Hears Arguments On Attorneys' Fees In Civil Rights Cases

The U.S. Supreme Court Wednesday heard oral arguments in a case that could have important implications for the recovery of attorneys' fees by prevailing parties who assert Free Exercise claims against state and local governments. Perdue v. Kenny A. is an appeal from an 11th Circuit decision that raises the question of whether attorneys' fees awarded under 42 USC Sec. 1988 can be enhanced based solely on the quality of performance and results obtained in the litigation. The attorney fee provisions of Sec. 1988 apply to actions under Sec. 1983, under RFRA and under RLUIPA. SCOTUS Wiki has background on the case and links to all the briefs as well as the 11th Circuit opinion below. The Supreme Court has posted the full transcript of the argument. SCOTUSBlog carried a summary of the arguments.

USCIRF Urges Secretary of State To Press Iran On Religious Freedom

The U.S. Commission on International Religious Freedom on Tuesday wrote Secretary of State Hillary Clinton (full text of letter) urging her to press Iran on its human rights and religious freedom record as the U.S. pursues talks over Iran's nuclear program. Iran has been designated a "country of particular concern" under the International Religious Freedom Act (IRFA) since 1999. (See prior posting.) USCIRF letter recommends that the U.S. impose sanctions on Iran under the IRFA by barring entry entry into the United States and freezing the assets of Iranian government officials who have engaged in particularly severe religious freedom violations.

NY City Council Candidate Is a Neopagan Priest

Religion Dispatches yesterday reports on Dan Halloran, a Republican candidate for New York's City Council from Queens. Halloran is a practicing Neopagan. He is a priest of Theodism, a form of Norse Paganism which is a branch of Heathenism (or Asatru). Halloran says he believes in God and that faith is a cornerstone of his life. Explaining his views in a letter to a Neopagan blog, Halloran said: "I honor my Ancestors and cling to my Hiberno-Norse Culture’s Worldview. I revere my God (Tiw)- and henotheistically I may add... I have never hidden my religion—it's on my Facebook.... I've been the corporate counsel for a variety of pagan groups—and have lectured and discussed theology all over the U.S."

Christian Sports Camp Group Sues School That Excluded Its Flyers

On Wednesday, a religious group that operates Christian summer sports camp programs throughout the Midwest filed a federal lawsuit against the Lee's Summit (Missouri) School District challenging its policies governing its Backpack Flyers for Students Program. Only groups specifically named in the school policy statement (with a limited exception for Boy Scouts and Girl Scouts) are allowed to send flyers home with students. None of the named organizations are religious in nature. The complaint (full text) in Victory Through Jesus Sports Ministry Foundation v. Lee's Summit R-7 School District, (WD MO, filed 9/14/2009), alleged that the school's refusal to send home flyers on Victory's soccer camp amounted to a content- and viewpoint-based prior restraint of speech and denied Victory equal protection of the laws. Liberty Counsel yesterday issued a press release on the case.

Thursday, October 15, 2009

Ute Tribal Court Rejects Religious Challenge To Fish Hatchery

Yesterday's Vernal, Utah Express reports that a Ute Tribal Court ruled Monday in favor of the Tribe against tribal members challenging the Tribe's construction of the Big Springs Tribal Fish Hatchery. Tribal religious leaders say "the springs are a traditional religious site that must flow naturally without being tapped into a pipeline." While the court rejected these arguments, it did order a 30-day halt in construction of the pipeline to give time to bring concerned parties together to re-evaluate the situation.

Virginia Supreme Court Will Review Episcopal Church Case

According to yesterday's Washington Post, the Virginia Supreme court has agreed to review a lower court's decision in In Re: Multi-Circuit Episcopal Church Property Litigation (see prior posting). The lower court held that under Virginia's "Division Statute," church properties belong to the congregations and not to the Episcopal Church USA and the Diocese. The Episcopal Church argues that the congregations never legally "divided," but instead a conservative faction merely decided to leave and affiliate elsewhere.

Hawaiian Court Gives Key Ruling For Plaintiff In Cemetery Case

As previously reported, last July a descendant of Hawaiian royalty filed suit in Hawaii state court to require Honolulu's Kawaiahao Church and the state Department of Land and Natural Resources to fully comply with state burial laws in a construction project on land that was once a cemetery. Now, according to yesterday's Honolulu Advertiser, plaintiff has won a key ruling. The court rejected the argument that because the church maintains an active cemetery, it is subject to less stringent regulations. The court said that a full hearing before the Oahu Island Burial Council to review the project is required because it is on property that contains burial remains.

One Faith-Based Task Force Urges Involvement In Israeli-Palestinian Issues

On Tuesday, the White House Office of Faith-Based and Neighborhood Partnerships Advisory Council released preliminary drafts of recommendations from its six task forces. (See prior posting.) The Forward reported yesterday that a draft recommendation from one of the Task Forces (the one on interreligous dialogue) recommended that the Faith-Based Office should "create a working group of multi-religious and community organizations focused on the Israeli-Palestinian conflict, to advise administration officials at the National Security Council and the State Department on a just resolution of the conflict." Jewish leaders say this is outside the scope of the Office, and predict the recommendation will not make it into the final version of the Task Force reports.

Meanwhile, the task force on reform of the faith-based office proposed three recommendations for strengthening church-state separation: (1) Strengthen prohibitions against proselytizing program beneficiaries; (2) Post a list of grant recipients online; and (3) Strengthen language in the Executive Order creating the Office to emphasize that following constitutional principles is as important as distributing funds efficiently.

2nd Circuit: Ministerial Exception, Not RFRA, Bars Pastor's ADEA Suit

In Hankins v. New York Annual Conference of the United Methodist Church, (2d Cir., Oct. 13, 2009), the U.S. 2nd Circuit Court of Appeals held that the constitutionally-based "ministerial exception" doctrine requires dismissal of a pastor's age discrimination complaint. Plaintiff claimed that the United Methodist Church's policy requiring ministers over 70 to retire violated the federal ADEA and the New York State Human Rights Law. The court's decision affirmed the result the trial court had reached, but concluded (contrary to its own earlier holding) that it was the ministerial exception doctrine, not the Religious Freedom Restoration Act, that leads to that result. [Thanks to Steven H. Sholk for the lead.]

South African Court Rules Forced Circumcision of Teenager Is Unconstitutional

South Africa's Weekend Post reported yesterday on a decision by a High Court Judge in the town of Bhisho in South Africa's Eastern Cape Province. Teenager Bonani Yamani, now a second-year university student, sued his father and ten other men for abducting him and forcibly performing a traditional Xhosa circumcision on him in 2007 just three months after he had already been circumcised in a hospital. Bonani argued that the traditional circumcision violated his religious beliefs. The court ruled that the forced circumcision violated Bonani's constitutional rights. The teenager had also named the Eastern Cape Congress of Traditional Leaders of South Africa as a defendant. However he withdrew his complaint after the current head of the group apologized for comments made by his predecessor urging that people who refused traditional circumcision should be ostracised.

Russia's Justice Ministry Proposes Controversial Religion Law Amendments

Russia's Justice Ministry is proposing controversial new amendments to the country's law on religion, according to a report yesterday by Georgian Daily. Religious organizations will be required to seek registration from regional rather than local authorities. Also no one who has been convicted of inciting inter-ethnic or inter-religious hostility or "other crimes of an extremist nature" can be listed among the group's members seeking registration. Of more concern among established groups is the proposed new restriction on missionary activity. Government approval will be need before a religious group can engage in any kind of proselytizing activity-- defined as "the dissemination of one’s own faith among people who are not members, participants or followers of that religious organization." Missionaries from abroad must have an invitation form a group within Russia. The Russian Orthodox Church is strongly opposed to these provisions, calling them "spiritual terrorism against missionaries." This opposition may well lead to changes or rejection of the proposals.

Wednesday, October 14, 2009

Court Reverses Order Barring Autopsy Finding No Evidence of Religious Objections

In Harris County Medical Examiner v. Saghian, (TX Ct. App., Oct. 8, 2009), a Texas state court of appeals reversed a trial court's 2007 decision barring the county medical examiner from performing an autopsy on a Jewish man who apparently had committed suicide. The court rejected the trial court's finding that the autopsy violated the Texas Religious Freedom Restoration Act because, while several rabbis testified as to Orthodox Jewish beliefs regarding autopsies, there was no evidence that the deceased and his wife were in fact observant Orthodox Jews. The only evidence before the court was that the husband and wife consulted with one of the rabbis on several occasions and that the deceased attended events and classes sponsored by a Jewish organization.

Court Says Church Could Be Liable For Harassment of Summer Camp Employees

Nunez v. Mariners Temple Baptist Church, (NY Sup. Ct., Oct. 8, 2009), involved a lawsuit by the father of two teenagers who alleged sexual harassment by their supervisor at a children's summer camp where they were employed. A New York trial court held that the lawsuit could be maintained against a Church that owned the building and yard where the camp operated, as well as against the non-profit organization that ran the camp. The court concluded that the complaint raised a triable issue of fact as to whether the two organizations should be considered an integral enterprise for the purposes of liability. In the case the Church also asserted a claim against its insurance company seeking a declaration that the insurer is obligated to defend and indemnify it in the case. The court refused to conclude that the claim against the Church was excluded from coverage under its insurance policy.

British Tribunal Reverses Exclusion of Dutch Politician Geert Wilders

BBC News reports that yesterday Britain's Asylum & Immigration Tribunal reversed a government decision that refused right-wing Dutch politician Geert Wilders entry into the country last February. Wilders called the Tribunal decision a victory for free speech. Wilders, known for his strong anti-Islam views, had been invited to show his inflammatory film Fitna in the upper house of Britain's Parliament. (See prior posting.) Wilders plans a visit to Britain next week. An appeal by the Home Office, or a ban on different grounds, are possible responses. The Home Office can keep the travel ban in place pending appeal only if it obtains permission from the Court of Appeal.

Brooklyn's Ultra-Orthodox Jews More Willing To Use Civil Authorities In Abuse Cases

The New York Times yesterday reported on the sharp rise in child sexual abuse cases brought recently by prosecutors in Brooklyn (NY) against members of the ultra-Orthodox (haredi) community. After decades in which almost no abuse prosecutions were brought against ultra-Orthodox Jews, a number of developments have led to members of the haredi community for the first time being willing to go to civil authorities to file complaints. The Jewish press, therapists, Orthodox Jewish social workers, rabbis, Jewish blogs and new organizations, combined with the failure of rabbinical courts to deal effectively with molesters, have led parents of victims and the victims themselves to overcome the traditional stigma of going to civil authorities instead of internal religious courts. Brooklyn District Attorney Charles J. Hynes has begun a program called Kol Tzedek (Voice of Justice) that cooperates with Orthodox social workers and sends speakers into schools and community centers to talk about sexual abuse.

UPDATE: According to Wednesday' Forward, despite these developments several national rabbinic leaders urge that Orthodox rabbinic courts continue to screen allegations of sexual abuse to decide whether they should be forwarded to civil law enforcement authorities.

Florida Judge Will Order Teenage Convert Back To Ohio's Jurisdiction

The Orlando (FL) Sentinel reported yesterday that a Florida judge will order 17-year old Fathima Rifqa Bary back to her home state of Ohio where an Ohio court wants jurisdiction. A foster home for the girl has been identified in Ohio. Bary, who converted from Islam to Christianity, fled in August to Florida to husband and wife pastors she had met through Facebook. Rifqa claimed she was afraid her father would kill her because of her conversion. Currently the girl is in custody of Florida's Department of Children and Families. (See prior posting.) Bary's family says that Rifqa's fears are unfounded, but the girl's Florida lawyer says she still is afraid of being returned to her native Sri Lanka.

Florida Circuit Court Judge Daniel Dawson says he will not order the girl returned until her family submits paper work clarifying her immigration status which so far have not been forthcoming despite several court orders seeking them. He also wants assurances that Rifqa will be able to continue studying in a Florida online school. Several people in an Ohio courtroom participated by phone in yesterday's hearing in Florida, including lawyers for Rifqa's parents, her Ohio lawyer, an Ohio prosecutor and a judge. Rifqa spent much of the hearing thumbing through a Bible.

California Governor Vetoes Bill Mandating Police Educational Material On Kirpans

On Sunday, California's Governor Arnold Schwarzenegger vetoed a bill passed by the state legislature that would have required the Peace Officer Standards and Training Commission (POST) to create additional training materials for law enforcement officers on how to deal with Sikhs carrying kirpans. (See prior posting.) The governor said that AB 504 is unnecessary because POST already has authority to create this type of material if it finds it is needed. Religion News Service yesterday quoted Neha Singh of the Sikh Coalition who said the Sikh community was "outraged" by the veto. Singh said that police officers often do not know what they are looking at when they see a kirpan. However a POST spokesman said that statistically the kirpan is not a significant issue.

Tuesday, October 13, 2009

Postal Service's 2009 Holiday Stamps Are Being Issued

As reported (with photos) by Collectors Quest, the U.S. Postal Service is in the midst of issuing its 2009 holiday season stamps. Last week at the American Stamp Dealers Association show in New York it issued a set of four Winter Holiday stamps with non-religious designs on them-- a reindeer, a snowman, a gingerbread man and a toy soldier. Next week USPS will issue a Christmas stamp with a religious theme. It will feature a painting of Madonna and Child by the 17th century Italian painter Giovanni Sassoferrato. According to a USPS news release, this stamp will be issued Oct. 20 at the Hearst Castle in San Simeon, CA. The the Sassoferrato painting was acquired by William Randolph Hearst in 1926.

Also at the New York ASDA show last week, the Postal Service issued a new Hanukkah stamp featuring a Menorah with nine lit candles and a new brightly colored Kwanzaa stamp. A second Christmas stamp featuring an angel playing a lute was originally also going to be issued this year, but was dropped because of the Postal Service's budget problems. (Stamp News 3/19/2009.)

Senate Majority Leader Criticizes Mormon Church's Support For Proposition 8

The Salt Lake Tribune reported yesterday that U.S. Senate Majority Leader Harry Reid, in a meeting with three organizers of last weekend's National Equality March in Washington criticized the Church of Jesus Christ of Latter Day Saints for its support of California's Proposition 8 last year. Proposition 8 banning gay marriage passed by a 52% vote after a campaign in which the LDS Church and many of its members contributed significant funds and other support. (See prior posting.) Reid, a Senator from Nevada and himself a Mormon, said he thought it was a waste of Church resources and good will for the LDS Church to focus on such a divisive issue.

Recent Prisoner Free Exercise Cases

In Dedrick v. Wilner, 2009 U.S. Dist. LEXIS 92618 (D CO, Sept. 23, 2009), a federal prisoner complained that he is being required to attend a drug abuse education program in violation of his free exercise rights as a condition of obtaining supervised release, and that he will be required to attend a 12-step program with religious content upon release. The court held that his claim regarding future requirements is not ripe, and that his claim regarding his current conditions of confinement need to be filed as a Bivens action instead of a habeas corpus action.

In Lewers v. Pinellas County Jail, 2009 U.S. Dist. LEXIS 92702 (MD FL, Sept. 18, 2009), a Florida federal district court held that a Jewish inmate may proceed with his claim that he was denied a kosher diet. However it rejected his claim that he is entitled to be furnished free of charge with Jewish reading materials, a Torah and a Talmud. The court held that plaintiff failed to adequately allege an equal protection claim, but gave him leave to file an amended petition to cure pleading deficiencies as to his free exercise claims.

In Holley v. Johnson, 2009 U.S. Dist. LEXIS 94126 (WD VA, Oct. 1, 2009), a Virginia federal district court held that plaintiff had adequately alleged violations of his rights under RLUIPA and the First Amendment stemming from confiscation of religious materials and denial of the Common Fare Diet. Plaintiff claimed that the only reason for these actions was that prison authorities do not consider Nations of Gods and Earths to be a religion. The court held that an inmate's sincere, but personal, religious beliefs are entitled to consideration regardless of whether they are shared by all of the members of a religious sect.

Conservative Christian Groups Oppose Current Heath Care Reform Proposals

Liberty Counsel yesterday issued a press release endorsed by 34 other conservative Christian groups saying that "it is time to start over" on health care reform, with a "nonpartisan approach." The statement said in part:

We oppose funding for abortion. Abortion is not healthcare. We support the sanctity of human life from conception to natural death.... We support conscience laws protecting hospitals and healthcare providers from coerced participation in abortion. We oppose government policies pressuring people to forgo or limit treatment because of age or illness..... Every proposed bill funds abortion, including the so-called Baucus bill from the Senate Finance Committee. This is unacceptable. We will not support any bill that funds abortion.

... We support legal reform to stop frivolous lawsuits ...[,] portability, allowing people to take their healthcare with them so it is not tied to employment...[,] options to purchase health insurance across state lines.... We support competition; coverage of pre-existing conditions; wellness care and prevention incentives; tax relief that provides a dollar-for-dollar deduction for every dollar spent on premiums or other medical or prescription costs; and a dollar-for-dollar tax deduction with no limit from gross income for every dollar contributed to nonprofit organizations providing healthcare for free or at reduced cost to the needy..... We oppose a single-payer, government-run insurance program or the so-called public option.

Monday, October 12, 2009

Christian Scientists Want Coverage Under Health Care Reform Bill

Today's St. Petersburg (FL) Times reports on concerns of Christian Scientists as to proposed health care reforms. They want Christian Science practitioners and similar prayer-based healing covered by health insurance. Some of the drafts of health care reform legislation mandate this type of coverage. Other drafts merely exempt religious objectors from the requirement to obtain health insurance.

Two Pentecostal Churches In Britain Cited For Loud Music

In Britain, according to yesterday's London Telegraph, two Christian pentecostal churches have been served with noise abatement notices after neighbors complained about the loud music played at their services. All Nations Centre in Kennington, south London, has been told to end amplification of music and sermons. A week earlier, Immanuel International Christian Centre in Waltham Forest, north-east London, was cited and told it could play amplified music only for twenty minutes on Sundays. Attendance has gone down from 100 to 30 because of the ban. The churches say the bans are not about noise, but about silencing Christian viewpoints.

Restoring Historical Cross Explored By California City

In 1969, a wooden cross was put up on Monterey, California's Del Monte Beach to mark 200th anniversary of the raising of a wooden cross at the site by explorer Don Gaspar de Portol and Father Juan Crespi as a signal to the supply ship San Jose, expected to arrive from Mexico. Last month vandals cut down that cross. The Monterey County Herald last week reported that City Council wants to restore the cross because of its historical significance, but is concerned about possible litigation from the ACLU. Even before the vandalism, the ACLU and the city were engaged in discussions about the cross and compromise ways to keep it as a historical marker without its being an endorsement of religion. In a closed session last Tuesday, following a public hearing on the matter, City Council voted to proceed with the new cross only after raising $50,000 in contributions as a legal defense fund.

Egyptian Islamists Sue Top Cleric Over His Ban on Niqab At Al-Ahzar

As reported last week, Egypt's top cleric, Mohammed Sayyed Tantawi, announced he would ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. Today Al Arabiya reports that a Muslim brotherhood lawyer, representatives of Egypt's lower house of parliament and the Sawaseya Center for Human Rights have joined together in a lawsuit against Tantawi, claiming that his ban unconstitutionally violates personal freedom and infringes the principle of equality for all citizens. The lawsuit also names Egypt's minister of higher education and the president of Cairo University as defendants. A spokesman for al-Azhar argued that the Muslim Brotherhood is not able to sue because it is an outlawed group. He also claimed that the ban is an internal policy of al-Ahzar that outsiders have no right to challenge.

Vermont Supreme Court Remands Clergy Sex Abuse Case For New Trial, Ruling For Plaintiff

In Turner v. Roman Catholic Diocese, (VT Sup. Ct., Oct. 9, 2009), the Vermont Supreme Court held that neither the Free Exercise Clause, the Establishment Clause nor the religious autonomy doctrine bars negligent hiring or negligent supervision claims against the Catholic Diocese of Burlington, Vermont. In the clergy sexual abuse case in which the plaintiff was awarded $15,000 in damages, the Court said:

Defendant does not argue that the common law of negligence is something other than a neutral law of general applicability or that it is directed specifically towards a religious belief or practice of defendant. Nor has defendant identified a specific doctrine or practice that will be burdened if plaintiff’s suit goes forward. We do not believe defendant’s generalized assertion that requiring it to hire and supervise priests in a non-negligent manner would constitute undue interference in church governance.

Rejecting defendant's religious autonomy claim, the court said that "the claim was not brought under church law, nor did it seek to enforce the duties of defendant according to religious beliefs." The court also held that summary judgment should not be granted to defendant on statute of limitations grounds.

Finally the court held that the trial court should have excused for cause a juror who was a member of the defendant Diocese. The Court rejected the argument that permitting this challenge for cause would amount to religious discrimination. This finding led the Court to vacate the judgment and remand the case for a new trial.

Yesterday's Bennington (VT) Banner reported on this decision, as well as on another unrelated case in which a trial court jury in Chittenden, Vermont on Friday handed down a $2.2 million verdict in a suit against the same Catholic Diocese in a different clergy child molestation case.

Sunday, October 11, 2009

State Court Decision In Synagogue Dispute Leads To Self-Help

Today's Hudson Valley (NY) Times Herald-Record reports on the aftermath of a recent state appellate court decision in a lawsuit between two Hasidic synagogues in the town of Kiryas Joel. Opponents of the village's chief rabbi had for 25 years been using the former living quarters of the chief rabbi (next to the main synagogue) as their own place of worship. Apparently the house had been left to the group by the late wife of Satmar Rebbe Joel Tietelbaum. In the court decision last month, New York's Appellate Division ruled that the dissidents' use of the former home as a place of worship now requires a site plan review by the Village Zoning Board. (See prior posting.) This ruling led the main synagogue, Yetev Lev, to shut off electricty, water and sewer services to the dissident synagogue, Bais Yoel Ohel Feige.

Not deterred, members of BYOF tapped electricity from a neighboring property and ran a hose with water from there to their synagogue. Then, according to the paper's account, along came "Joseph Waldman, a onetime dissident firebrand ... who prays three times a day at the dissident synagogue." He commandeered a truck carrying portable toilets and, with fellow congregants, took the toilets onto BYOF grounds. According to the paper: "Equipped with improvised utilities, dissidents continued using the synagogue during Sukkot last week, but their Planning Board application still looms, and more legal fighting is certain."

UPDATE: BYOF has been held in contempt by a state trial court judge for continuing to use the premises without submitting a site plan for review. The court ordered the synagogue closed within 5 days. (Times Herald-Record, 12/3/2009).

Federal Jury Rejects Religious Discrimination Claim By Indiana City Employee

Friday's Chicago Tribune reports that a federal court jury sided with the Kendallville, Indiana water department in a religious discrimination lawsuit brought against it by former employee Greg Rice. Rice claimed that his supervisor, Scott Mosley, posted religious slogans in the office and repeatedly lectured him about the state of his soul. Mosley is also the pastor of a local church. However apparently the jury believed Mosley's testimony that he fired Rice for insubordination after Rice argued and hung up on a staff member of the city clerk's office.

Appellate Court Reinstates Pakistani Muslim's Employment Discrimination Claims

Taking both parties to task for the 5,415 pages of material that were before the trial court when it was called on to decide a summary judgment motion, a California appellate court nevertheless reversed the dismissal of discrimination and harassment claims brought against United Airlines by a Muslim of Pakistani ancestry. Plaintiff was fired from his position as supervisor of facilities maintenance mechanics, according to United Airlines because of an assault on a female employee of an outside service provider. In Nazir v. United Airlines, Inc., (CA Ct. App., Oct. 9, 2009), the court concluded that questions of fact remained as to whether the reasons given for Nazir's firing were a pretext for religious or national origin discrimination. Nazir had cited a long history of ethnic name calling and harassment by co-workers. Today's San Francisco Chronicle reports on the decision.

Presidential Statement, Official Delegation Hail Canonization of Fr. Damien

Pope Benedict XVI today canonized five new saints, including Belgian-born priest, Jozef De Veuster, known as Father Damien, who died of leprosy in 1889 after years of caring for those suffering from leprosy on the Hawaiian island of Molokai. (New York Times.) On Friday, the White House issued a statement from the President recognizing Fr. Damien's canonization. Obama, who was born in Hawaii, recalled hearing stories of Fr. Damien's work. A large delegation from Hawaii attended the canonization ceremony in Rome. ABC News reports that President Obama sent an official delegation to Sunday's ceremony. It was led by US ambassador to the Vatican, Miguel Humberto Diaz, and included Hawaii Sen. Daniel Kahikina Akaka; New Jersey Rep. Donald Payne; the superintendent of Kalaupapa National Historic Park, Stephen Prokop; Bishop of Honolulu Larry Silva; and President of the Catholic Health Association of the United States Sister Carol Ann Keehan.

Ohio Judge Again Enjoined From Displaying Poster Featuring 10 Commandments

In ACLU of Ohio Foundation, Inc. v. DeWeese, (ND OH, Oct. 8, 2009), an Ohio federal district court enjoined Richland County (OH) Common Pleas Judge James DeWeese from continuing to display in his court room a framed poster he had created titled "Philosophies of Law In Conflict." The poster was put up after the judge was enjoined in 2004 from displaying a poster containing the Ten Commandments. The new poster discussed moral absolutism as opposed to moral relativism. In a column titled Moral Absolutes, the poster lists the text of the Ten Commandments next to a column listing "Humanist Precepts." Granting summary judgment to the ACLU, the court concluded that Judge DeWeese's purpose in posting the display was religious, and that a reasonable person would view the poster as a governmental endorsement of religion. The poster violated the Establishment Clause as well as Art. I, Sec. 7 of the Ohio Constitution. The court also concluded that the Free Speech clause of the First Amendment does not protect the display because it is not private speech. The Ohio ACLU issued a press release on the case and Friday's Mansfield (OH) News Journal reported on it. (See prior related posting.)

UPDATE: The Oct. 13 Mansfield News Journal reports that Judge DeWeese has complied with the federal court order by placing a dark blue drape over his display and posting on the drape a statement objecting to censorship which he says was imposed because "the ACLU was offended" by reading his essay.

Friday, October 09, 2009

San Francisco Catholic Archdiocese Battles City Over Transfer Tax Liability

The San Francisco Bay Guardian reports on a hearing yesterday before the city's Transfer Tax Review Board. At issue is somewhere between $3 million and $15 million in transfer taxes that the city says are due from the San Francisco Catholic Archdiocese as a result of its transfer last year of some 233 properties to two new Catholic non-profit holding companies. According to yesterday's SF Appeal, apparently the properties were transferred to shield them from judgments in any future clergy sexual abuse lawsuits. The Archdiocese says the transfers are not subject to tax because, as transfers from one Catholic entity to another, they qualify as "gifts" under canon law. In an earlier statement, the Archdiocese claimed that the law treats these as properties of the Church, and that the transfers between religious corporations are seen as merely conveniences to assist the Church in holding title. Church supporters say that paying these transfer taxes could cripple other Church programs. Some suggest that attempts by San Francisco Assessor-Recorder Phil Ting to impose the tax is retaliation for the Church's support of Proposition 8 (banning gay marriage) last year. [Thanks to PewSitter for the lead.]

NY Appellate Court Refuses To Adjudicate Validity of Hindu Marriage Rites

In Madireddy v. Madireddy, (NY App. Div., Oct. 6, 2009), a New York state appellate court dismissed a divorce complaint because the case required the civil courts to determine whether the parties' were validly married in a Hindu ceremony in India in 1952. The court concluded that determining the validity of the alleged marriage required analysis of "the various and customary rites, customs, and practices of the Hindu religion of a particular caste in a particular region." The trial court was without jurisdiction to settle a religious controversy that could not be resolved by the application of neutral principles of law. [Thanks to Eugene Volokh via Religionlaw for the lead.]

City Will Post "In God We Trust"

The Fortuna, California City Council on Monday voted 5-0 to post the national motto, "In God We Trust", in city council chambers. Members of the public expressed conflicting views on the proposal at the Council meeting. One argued that he should not be forced to recognize God, but another responded that a majority of people in the community believe in God and he was tired of having the minority telling him that he can't recognize his God in public. Yesterday's Humboldt (CA) Beacon reports that one of the Council members will come up with funding for the placard. Some 56 cities have joined a movement to post the motto. Council must still give final approval later this month.

Illinois Cancels Controversial Grant To Historic Church For Rebuilding

Chicago activist Rob Sherman reports that the Illinois Department of Commerce and Economic Opportunity notified (full text of letter) Pilgrim Baptist Church last month that it was terminating a grant promised to the church by former Governor Rod Blagojevich. The $1 million state grant was intended to help rebuild the historic Chicago church after it was severely damaged by fire in 2006. Last year, Sherman filed a lawsuit alleging that the grant violates the Establishment Clause as well as various provisions of the Illinois Constitution that effectively bar expenditures for religious purposes. (See prior posting.) The grant agreement limited the funds to use for secular purposes, but Sherman claimed that the state portion will still be identified with the church and that there were no effective limits on use of the funds after the two-year grant period.

New Hampshire Noise Law Challenged By Two Evangelists

Two Christian evangelists filed a federal lawsuit on Wednesday challenging the constitutionality of New Hampshire's statute banning loud and unreasonable noise in a public place, and the application of that statute by the Town of Hampton. The complaint (full text) in Frost v. Town of Hampton, (D NH, filed 10/7/2009), alleges that N.H. RSA 644:2(III)(a) is unconstitutionally vague and overbroad, and is used to improperly restrain any speech "that the government subjectively determines does not increase tourism in the Hampton Beach area." The two plaintiffs were arrested in August and charged with disorderly conduct after preaching near the beach boardwalk where a rock concert was being held. Those charges were dismissed. The lawsuit also claims false arrest in connection with that incident. Alliance Defense Fund issued a release announcing the lawsuit.

NY Finds That Restaurant Discriminated Against Falun Gong Patrons

Epoch Times reports on an Oct. 2 ruling by the New York State Division on Human Rights finding that the Lucky Joy restaurant in Flushing violated anti-discrimination laws when it refused service to two women and a young girl because one of them was wearing a Falun Gong T-shirt. (See prior posting.) Each of the three was awarded $7000 in damages. In addition the restaurant must display an anti-discrimination poster and create anti-discrimination training and procedures.

Catholic Archbishop Speaks Out On Government's Relationship With Catholics

CNA reports on an interesting speech delivered by Catholic Archbishop of Denver Charles J. Chaput yesterday at North Carolina's Belmont Abbey College where he was given the Envoy of the Year Award. He praised Belmont Abbey for its stand against the EEOC which has charged the college with gender discrimination for dropping coverage for contraceptive drugs from its health plan for employees. (See prior posting.) Contrasting anti-Catholic bigotry in early America with today, Chaput said:

Caesar wears a different suit. He has great media handlers. He bullies religion while he claims to respect it. He talks piously about the law and equality and tolerance and fairness. But he still confuses himself with God –and he still violates the rights of Catholic believers and institutions by intruding himself where he has no right to be....

It's one of the great ironies of the moment that tiny Belmont Abbey would have the courage to challenge Caesar over its right to be faithfully Catholic in its policies, while so many other American Catholics seem eager to give Caesar honors.

Earlier this week, Chaput published an article in the Italian newspaper Il Foglio criticizing Notre Dame University's award of an honorary degree to President Obama last Spring.

Hate Crimes Bill Included In Defense Authorization Conference Report Passed By House

It appears that the long battle to expand federal hate crimes legislation is about to succeed. (See prior posting.) The Conference Report on HR 2647, the 2010 Department of Defense Authorization Bill, included in the bill the Matthew Shepard and James Byrd, Jr. Hate Crime Prevention Act. Yesterday the House of Representatives approved the Conference Report by a vote of 281-146. The Conference Report now goes to the Senate for its approval. President Obama has promised to sign the legislation.

According to a release from the Senate Armed Services Committee, the hate crime provisions will (1) prohibit hate crimes based on the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of any person; (2) provide support for the criminal investigation and prosecution of hate crimes by State, local, and tribal law enforcement officials; and (3) prohibit attacks on United States service members based on their military service.

Yesterday's Los Angeles Times reports that 131 of the 146 "No" votes were from Republicans who object to the hate crimes legislation, despite language designed to protect religious speech and association. Conservative Christians have argued that the bill could be used to prosecute pastors for anti-gay sermons that are later connected to violence against gays. Here are the provisions in the Conference Report intended to deal with this issue (at pp. 1366-69):

SEC. 4710. RULE OF CONSTRUCTION.
For purposes of construing this division and the amendments made by this division the following shall apply:

(1) IN GENERAL.—Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

(2) VIOLENT ACTS.—This division applies to violent acts motivated by actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of a victim.

(3) CONSTRUCTION AND APPLICATION.—Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to—
(A) plan or prepare for an act of physical violence; or
(B) incite an imminent act of physical violence against another.

(4) FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

(5) FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

(6) CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

SEC. 4711. GUIDELINES FOR HATE-CRIMES OFFENSES.
Section 249(a) of title 18, United States Code, as added by section 4707 of this Act, is amended by adding at the end the following:

"(4) GUIDELINES.—All prosecutions conducted by the United States under this section shall be undertaken pursuant to guidelines issued by the Attorney General, or the designee of the Attorney General, to be included in the United States Attorneys’ Manual that shall establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person."

ADL issued a press release welcoming the House action and said the next step is training for law enforcement personnel and prosecutors about the new law. The Family Research Council issued a statement criticizing the legislation, calling it a "thought-crimes bill" and charging that it gives special rights based solely on sexual behavior.

Human Rights Lawyer In Egypt Sues To Stop "Hesba" Proponent

Egyptian human rights lawyer Naguib Gobraiel filed a lawsuit in Cairo on Wednesday against fellow-lawyer Nabih el Wahsh charging him with "ghawi shohra" or "seeking fame." The charges stem from el Wahsh's long history of bringing "Hesba" cases against intellectuals, artists, religious leaders and government ministers charging them with immorality or blasphemy. The doctrine of Hesbah allows any Mulim to take legal action against anyone seen as harming Islam. In Egypt, the doctrine also extends to actions seen as immoral or injurious to the country. UAE's The National yesterday reported that el Wahsh has filed nearly 1000 Hesbah cases in the past ten years. For example he recently filed suit attempting to get seven TV series removed from Egyptian and Arab stations during Ramadan for violating Islamic law and presenting immoral scenes. Most of el Wahsh's cases are dismissed by the prosecutor general before they get to court. However earlier this year he won a case stripping Egyptian nationality from anyone married to an Israeli. If Gobraiel's lawsuit is successful, it could lead to a fine being imposed on el Wahsh.

Thursday, October 08, 2009

Recent Prisoner Free Exercise Cases

In McAlister v. Livingston, (5th Cir., Oct. 6, 2009), the U.S. 5th Circuit Court of Appeals remanded for trial a Wiccan inmate's claims under the 1st Amendment and RLUIPA, alleging that prison officials wrongly denied his requests for devotional items for in-cell and group use, and that Wiccan inmates are not allowed to meet to celebrate the eight Wiccan holy days or for group worship without the supervision of an approved volunteer.

In Brown v. Lindsay, 2009 U.S. Dist. LEXIS 91126 (MD PA, Oct. 1, 2009), a Pennsylvania federal district court dismissed a challenge by a Muslim inmate to the temporary removal from the sheves of the prison chapel's library for security reasons of certain books. Plaintiff had since been transferred to a different facility and the Bureau of Prisons has rejected the Standardized Chapel Library Project policy responsible for the removal of the books. (See prior related posting.)

In Hamilton v. Smith, 2009 U.S. Dist. LEXIS 91039 (ND NY, Sept. 30, 2009), a New York federal district court rejected an inmate's complaint that his free exercise rights and his rights under RLUIPA were violated when the prison refused to provide him meals that met both his religious tenets and his medical needs for a low-sodium, low-cholesterol diet. The magistrate's recommendation is at 2009 U.S. Dist. LEXIS 91032 (Jan. 13, 2009).

In Fetzer v. McDonough, 2009 U.S. Dist. LEXIS 91063 (ND FL, Sept. 29, 2009), a Florida federal district court accepted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91074 (June 26, 2009)) and rejected an inmate's free exercise, equal protection and due process challenges to the Florida Department of Corrections discontinuance of its Jewish Dietary Accommodation Program.

In Bey v. Caruso, 2009 U.S. Dist. LEXIS 90314 (ED MI, Sept. 30, 2009), a Michigan federal district court rejected a magistrate's evidentiary ruling (2009 U.S. Dist. LEXIS 90323 (Feb. 27, 2009)) and held that material questions of fact remained for trial in a suit by an inmate, a member of the Moorish Science Temple of America, who wanted prison officials to use his religious name in prison documents.

In Smith v. Stoley, 2009 U.S. Dist. LEXIS 91142 (WD MI, Sept. 30, 2009), a Michigan federal district court adopted a magistrate's recommendations (2009 U.S. Dist. LEXIS 91456 (July 21, 2009)) and dismissed claims by a Wiccan prisoner who wanted to possess a number of items for religious rituals, such as a knife, a crystal ball, candles, incense and a senser, and wanted to cover his cell window in order to perform certain Wiccan rituals naked.

In Crump v. McBurney, 2009 U.S. Dist. LEXIS 90693 (WD MI, Sept. 30, 2009) a Michigan federal district court adopted the recommendations of a magistrate judge (2009 U.S. Dist. LEXIS 91403 (June 11, 2009)) and rejected a RLUIPA claim by a prisoner who was wrongly removed from the prison's kosher food program for 39 days. Under prison rules, inmates could be suspended from the program if they purchased non-kosher food from the prison commissary. A guard had claimed that cough drops ordered by the inmate violated this restriction, but was later overruled when the warden ruled that these were personal care items, not food.