Summary Judgment Denied To Defendants In 2 Prisoner Cases

In Smith v. Sears, 2005 U.S. Dist. LEXIS 18017 (USDC SD Ohio, July 11, 2005), handed down last month but made available only recently, a federal Magistrate Judge denied Ohio prison officials' motion for summary judgment in a claim by a prisoner that his religious freedom rights were infringed by forcing him to cut his beard. The court found that disputed factual issues could not be determined at the summary judgment stage of the case. The inmate claimed to be an Orthodox Jew, but prison officials presented some evidence challenging the sincerity of his beliefs. Prison officials claimed enforcement of grooming regulations were needed for prison security, but plaintiff had worn his beard for almost 4 years without security problems. A prior posting discussed related opinions in this litigation.

In Brown v. Johnson, 2005 U.S. Dist. LEXIS 17971 (USDC WD Pa., Aug. 24, 2005), a former Pennsylvania prisoner claimed that prison officials retaliated against him for exercising his First Amendment rights when they confiscated items in his cell and transferred him to the Restricted Housing Unit. Prison officials claimed he was a security threat because he belonged to a group known as the United Nation of Islam-KAM (UNOI-KAM). The court denied defendants' motion for summary judgment because evidence failed to conclusively show that the inmate belonged to UNOI-KAM.

NYC Questions Circumcision Method

New York City health authorities are questioning the health dangers of a circumcision method used by some Hasidic sects and certain other traditional Orthodox Jewish mohels. Today's New York Times reports that the practice, known as oral suction, risks spreading herpes to infants. The Orthodox Rabinnical Council of America advocates an alternative method, and Rabbi Moshe Tendler, a microbiologist and professor of Talmud and medical ethics at Yeshiva University, said that the procedure, known in Hebrew as metzitzah b'peh, violates Jewish law because of the health risk it poses. Nevertheless the practice persists among some, and the city does not plan to ban it, partly out of a concern for religious freedom and partly because a ban would probably be unenforceable in practical terms. Instead city officials, including Mayor Bloomberg, have been meeting with Orthodox Jewish leaders to persuade them to abandon the practice, but so far they have not been successful. After meeting with the Mayor, Rabbi David Niederman of the United Jewish Organization in Williamsburg, Brooklyn, said, "We do not change. And we will not change."

Israel High Court Rules On Fate of Gaza Synagogues

A fascinating politico-legal struggle has been taking place in Israel over the fate of synagogues in the Gaza Strip. It is detailed in a report by the Israel Hasbara Committee. Israeli authorities had planned that as part of the disengagement, Gaza synagogues, along with many other buildings, would be destroyed. A petition was filed last week with the Israeli High Court of Justice on behalf of an Elei Sinai rabbi and a professional photographer, asking that the Court order the synagogues to remain. On August 23, in a 2-1 decision, the Court largely rejected the petition. It ordered that two synagogues be moved across the border into Israel, and an examination of whether three others could be dismantled and moved. For the other Gaza synagogues, the court ruled that they should be photographed and documented, but then they should be desanctified according to Jewish law and destroyed. Artifacts, doors and external elements though would be removed an reused in synagogues in Israel. A dissent, however, argued that the synagogues should not destroyed even if they are abandoned. He urged the state to appeal to the Palestinian Authority and international bodies to examine the possibility of preserving the synagogues in their current locations in the Gaza Strip.

According to a report in yesterday's Haaretz, after the High Court's opinion was handed down, the Chief Rabbinical Council, headed by Israeli Chief Rabbis Shlomo Amar and Yonah Metzger, issued a ruling forbidding the demolition of any of the synagogues. They argued that demolishing the synagogues in evacuated settlements will set a precedent that jeopardizes synagogues all around the world.

Increased Saudi Religious Persecution Reported

Christian Today reports on Thursday: "Persecution among believers of religions other than Islam has noticeably increased since the new king of Saudi Arabia, King Abdullah, was installed after the death of King Fahd. AsiaNews has reported that sources have confirmed that the religious police known as the Muttawa, have raided homes of foreigners, and Christians have especially been targeted."

Symposia of Interest

From SmartCILP this week:

The Spring 2005 issue of the Pace Law Review carries three of the presentations from a Sympoisum held at Pace Law School on Dec. 3, 2004 on The Anti-Terrorist Financing Guidelines: The Impact on International Philanthropy. The published articles focus on the impact of the Guidelines on Muslim charities.

The Winter 2005 issue of the Yale Journal of Law & The Humanities carries a Symposium titled Rethinking Robert Cover's Nomos and Narrative.

Iraq Supreme Court To Include Muslim Clerics

Iraq's proposed new Constitution as translated by the AP provides (Art. 90):

The Supreme Federal Court will be made up of a number of judges and experts in Sharia (Islamic Law) and law, whose number and manner of selection will be defined by a law that should be passed by two-thirds of the parliament members.

At a press conference on Tuesday (full transcript), US Ambassador to Iraq, Zalmay Khalilzad, explained the provision:

[T]here was a proposal to establish a constitutional court. There were concerns that the court might be a kind of religious court, checking whether the constitution is consistent with Shari'a, and that was eliminated. Instead the responsibility of the constitutionality of laws has been given to the Supreme Court, and there has been a discussion that since there are three standards that the constitution cannot violate, the laws cannot be against Islam, the laws cannot be against democracy, the laws cannot be against human rights. There need to be experts on those three things, added to the court. Since this will be a new responsibility for the court to have responsibility over the three sources: democracy, human rights, and Islam.

Now, in the balance of forces, given where things are, I think that that's not bad. These are decisions that I'm reporting, but these are the decisions that the Iraqis have made for themselves. We should also not forget our own country's history, that when we were debating the constitution, when we were ratifying the constitution in the United States some of our states had state religions. This country is in the process of being built on new principles, but these principles of course cannot be divorced from the history and traditions of Iraq. We do not want to impose a cookie-cutter approach that America is this kind of a Republic and you have to follow it precisely. No, that's not American foreign policy, that's not our style of dealing with other nations. We respect other peoples' traditions, but we also believe in universal values that are relevant for countries that want to succeed, that have demonstrated their relevance, to have. We have tried to encourage Iraqis to consider those, but of course this is their country and they have to make their own decisions ultimately.

Hawaii Supreme Court Rejects Religious Defense In Marijuana Case

In State of Hawaii v. Adler, decided by the Hawaii Supreme Court on August 18, the court rejected a Free Exercise defense raised by Jonathan Adler who was convicted of commercial promotion of marijuana after authorities seized 82 marijuana plants at his home. The parties stipulated that Adler held sincere religious beliefs that his religion mandated the sacramental use of marijuana. However, his religion only required its members to use marijuana once a year. The court held that therefore Adler had failed to show that prohibiting the possession or cultivation of more than 50 plants burdens his free exercise. The court concluded "Inasmuch as Adler falls short of establishing a substantial burden of his free exercise of religion, this court need not evaluate (1) whether the State has a compelling interest in prohibiting the possession or cultivation of 50 or more marijuana plants or (2) Adler's somewhat disingenuous argument that [the commercial promotion statute] constitutes a total prohibition on the consumption of marijuana. "

LMRA Held Inapplicable To Parochial Schools

In Boston Archdiocese Teachers Association v. Archdiocesan Central High School, decided by the US District Court in Massachusetts on August 15, the court dismissed a complaint seeking to enforce the teachers' collective bargaining contract against a group of Catholic high schools and the Archdiocese of Boston. The suit was brought under Section 301 of the Labor Management Relations Act (29 USC Sec. 185). Finding that serious First Amendment problems would arise if the court accepted jurisdiction in collective bargaining disputes involving church-operated schools, the court interpreted the LMRA provision as not covering such schools. In doing so, it relied on a similar interpretation of the National Labor Relations Act by the US Supreme Court in the 1979 case of NLRB v. Catholic Bishop of Chicago. [Thanks to Steven Sholk for this information.]

New Steps In Australia and Britain Against Promoting Islamic Extremism

The International Herald Tribune yesterday quoted Australian Prime Minister John Howard as saying that he supported sending people into mosques and Islamic schools to determine whether they were promoting violence or extremism. On Australian radio, he said: "We have a right to know whether there is, within any section of the Islamic community, a preaching of the virtues of terrorism, whether any comfort or harbour is given to terrorism within that community".

Meanwhile, Britain has adopted new criteria for deporting radical Muslim preachers from abroad. According to a report today from the Los Angeles Times, deportation may be ordered for any non-British citizen who has been found to "foment, justify or glorify terrorist violence in furtherance of particular beliefs; seek to provoke others to terrorist acts; foment other serious criminal activity or seek to provoke others to serious criminal acts; or foster hatred which might lead to intercommunity violence".

Dismissal of Gay Parochial School Teacher Upheld

In Doe v. Lutheran High School of Greater Minneapolis, decided by a Minnesota appellate court on August 23, the court dismissed a minister's claim that he was wrongfully discharged as a religious teacher, chair of the theology department and campus pastor at a religious high school. He argued that the Minnesota Human Rights Act prohibited his dismissal based on his sexual orientation. The court found that its resolution of the claim would require the kind of inquiry into church doctrine that is prohibited by the First Amendment. It also found that the claim must be dismissed under the Freedom of Conscience clause of the Minnesota Constitution. The religious high school's beliefs would be compromised by requiring it to continue to employ the teacher. Finally the court held that the religious-association exemption in Minnesota's Human Rights Act precludes applying it to the synod and the school here.

DC Lobbyist For Secular Views

A Washington, D.C. lobbyist to represent the rights of humanists, atheists and other freethinkers has been hired by the Secular Coalition for America. Humanist Network News reported yesterday that Lori Lipman Brown, a former Nevada state senator, will serve as the Coalition's first director/lobbyist. In announcing the appointment, Herb Silverman, president of the Secular Coalition said: "Bias against nonbelievers is the last civil rights struggle in which blatant discrimination by politicians is viewed as acceptable behavior. That situation is about to change."

AL Prisoners Sue Over Religious Twelve-Step Programs

Al.com reported yesterday that five Alabama prisoners have filed suit in federal court because they are required to participate in Christian-based drug treatment programs. A settlement of a suit five years ago ordered prison officials to offer alternatives to faith-based 12-step programs. The Department of Corrections claims that the former settlement only requires them to offer alternatives when at least 25 prisoners request it. The ACLU of Alabama which represents the prisoners argues that inmates are not informed of the secular alternative programs, so the prison system has no idea how many inmates desire to enroll in it. The suit seeks an order mandating alternative programs and notice of them to prisoners. It also seeks an order to prevent punishment of inmates who refuse to participate in the religious programs. [Thanks to Joel L. Sogol via Law & Religion listserv for the lead.]

CLS At SIU Obtains Injunction Pending Appeal on Merits

On Monday, in Christian Legal Society v. Walker, the US Seventh Circuit Court of Appeals in a 2-1 decision granted an injunction to the Christian Legal Society to reinstate it as a registered student organization at Southern Illinois University School of Law, pending resolution of its appeal of the trial court's denial of a temporary injunction. Its status as a recognized student organization had been revoked because the CLS refused to comply with the school's policy prohibiting recognized student groups from discriminating on the basis of sexual orientation. (See prior related postings 1, 2.)

CLS claimed that it had a First Amendment right to require its officers and members to adhere to its statement of orthodox Christian beliefs, including the Bible's prohibition on homosexual conduct. The majority opinion said that granting the injunction while the appeal was pending would not irreparably harm the law school, while a denial of CLS's First Amendment rights is presumptively irreparable injury. The majority also said it was unclear exactly what university policy CLS was violating. Alliancee Defense Fund which represented CLS issued a release praising the decision.

Muslim Council In Nigeria Protests Child's Rights Act

The Supreme Council for Shari'ah in Nigeria (SCSN), has protested the attempt of the country's federal government to impose the Child's Rights Act, passed by the National Assembly in 2003, on state Assemblies. According to a story on Monday by AllAfrica.com, SCSN said: "Any law that seeks to give equal rights to male and female children in inheritance, seeks to give an illegitimate child the same rights as the legitimate one, and establish a court (family court) that ousts the jurisdiction of shari'ah courts on all matters affecting children, is unacceptable to Muslims."

HHS Suspends Funding For Religious Abstinence Program

A federally funded abstinence program, the Silver Ring Thing, has had its funding suspended because tax money is being used by it for religious activities. According to yesterday's Washington Post, the Department of Health and Human Services ordered the program to file a corrective action plan in order to qualify for a grant this year. Teenagers in the program sign a covenant "before God Almighty" to remain virgins ; they earn a silver ring with a Biblical verse on it reminding them to "keep clear of sexual sin." The suspension follows the filing of a lawsuit by the ACLU charging HHS with using tax funds to promote Christianity through this program. (See prior posting.) An attorney for the Alliance Defense Fund representing the challenged group says that its religious teachings are kept separate from government-funded activities.

New Article on Bepress

A new article of interest has been posted on Bepress. Roger Williams University Law School Professor Edward J. Eberle, has written Religion and State in the Classroom: Germany and the United States.

Community College Criticized For Radio Station Arrangement

Daytona Beach Community College, a public institution, has drawn criticism for choosing Cornerstone Broadcasting Corp. to be its primary source for students and faculty to find out whether classes have been cancelled in weather and other emergencies. In exchange,the evangelical radio station is permitted to use one of the college's broadcast towers. According to today's East Volusia, Florida News Journal, critics of the arrangement such as People for the American Way lawyer Reggie Williams argue that in a crisis situation, students and faculty will become a captive audience for evangelical preaching.

Malaysian Citizens Seek Court Protection for Religious Beliefs

BBC News reports today on an interesting challenge pending in Malaysia's federal court. Two Malaysians have been charged by Islamic authorities with associating with a banned inter-faith group, the Sky Kingdom. (See prior posting.) The two argue that they have renounced Islam and are therefore not subject to the fatwa they are charged with violating. They say that Article 11 of Malaysia's Constitution allows them to practice the religion of their choice, and are seeking a hearing in the federal court to vindicate that right. In the past, secular courts have referred these cases back to Islamic authorities who usually rule that individuals are using this as a defense merely to evade Islamic justice.

Christian Leader Urges Chavez Assassination

The debate over the proper role of religious leaders in shaping governmental policy has heated up again. CNN reports today that Christian broadcaster Pat Robertson has called for the United States to assassinate Venezuelan President Hugo Chavez. Robertson said Chavez is attempting to make Venezuela "a launching pad for Communist infiltration and Muslim extremism all over the continent." On yesterday's 700 Club, Robertson said: "If he thinks we're trying to assassinate him, I think that we really ought to go ahead and do it. It's a whole lot cheaper than starting a war." He called Chavez "a dangerous enemy to our south, controlling a huge pool of oil, that could hurt us badly." He continued: "We have the ability to take him out, and I think the time has come that we exercise that ability. We don't need another $200 billion war to get rid of one strong-arm dictator. It's a whole lot easier to have some of the covert operatives do the job and then get it over with." The CNN story also links to a video of Robertson's full remarks.

Iraqi Draft Constitution's Compromise On Role Of Islam

A draft Constitution was submitted to the Iraqi National Assembly yesterday, but a vote on it was delayed by three days so that negotiators could try to obtain consensus on points that are still outstanding. CNN reported yesterday that the main outstanding issue relates to federalism, and that the parties have reached a compromise on the role of Islam in the state. However, a partial text of the proposed Constitution, published yesterday by the Associated Press, suggests that the compromise on religion was achieved by placing arguably inconsistent provisions in to the document. Chapter One, Article Two of the Constitution provides:

1. Islam is a main source for legislation.
- a. No law may contradict Islamic standards.
- b. No law may contradict democratic standards.
- c. No law may contradict the essential rights and freedoms mentioned in this constitution.

2. This constitution guarantees the Islamic identity of the Iraqi people and guarantees all religious rights; all persons are free within their ideology and the practice of their ideological practices.

3. Iraq is part of the Islamic world, and the Arabs are part of the Arab nation.

Then Chapter Two, Article 39 provides: "Iraqis are free to abide in their personal lives according to their religion, sects, beliefs or choice. This should be organized by law."

UPDATE: Here is an updated and expanded translation of the parts of the propposed Constitution relating to the role of Islam and religious freedom in Iraq.

NJ Court Reverses In RLUIPA Challenge To Zoning Amendment

Yesterday a New Jersey Appeals Court decided House of Fire Christian Church v. Zoning Board of Adjustment of Clifton, reversing the trial court's holding that a change in the City of Clifton's zoning rules during the pendency of a church's site plan application violated the Religious Land Use and Institutionalized Persons Act. The amendment made the rear yard setback requirement for houses of worship match those for other land uses. The court held that the trial court had improperly shifted the burden of persuasion to the City. The correct rule, the court said, is that plaintiff has the initial burden of demonstrating that the land use regulation imposes a "substantial burden" on the church's "religious exercise".

Churches Argue Against MN Gun Laws

Today's Duluth News Tribune reports on arguments yesterday in a challenge by two churches to Minnesota's law on carrying of concealed weapons. (See earlier posting.) The churches, in a Hennepin County Trial Court, were seeking a temporary injunction against the enforcement of some of the law's provisions.

Attorneys for the churches argued that requiring signs with a specific size, typeface and language in order to prohibit guns in churches interferes with the churches' religious messages. The state responded that requiring specific religiously neutral words does not impose a substantial burden on the churches and does not cause them irreparable harm. The churches also argued that religious institutions should not be prohibited from banning guns in their parking areas, because those areas used to further religious missions when people talk about services on the way to their cars or when a church holds a fundraiser or services in a parking lot. The state said that when a church is holding an activity in the parking lot for a religious purpose, it may ban guns under the law. Finally the churches objected to provisions that prohibit landlords from banning tenants and their visitors from carrying guns, for example in child care centers or homeless centers operated out of church premises.

Kenyan Churches Oppose New Draft Constitution

Mainline Christian churches in Kenya are uniting to urge rejection in an upcoming November referendum of the proposed new Constitution for Kenya-- known as the Wako Draft. Christian Today reports that one reason for the opposition is the inclusion in the Constitution of provisions on Kadhi's courts - Islamic religious courts. However the reasons for church opposition is broader than that. They object to the fact that the current draft drastically revises the Bomas Draft of the Constitution produced last year by the National Constitutional Conference. In particular the new draft creates a strong President and a weak Prime Minister. See last month's Mail & Guardian report.

Yoga In Elementary School Raises First Amendment Hackles

IndoLink reports today that First Amendment objections have been raised to the teaching of yoga in Aspen, Colorado's Aspen Elementary School. Steven Woodrow, pastor of the First Baptist Church in Aspen is quoted: "At its base element, yoga is a spiritual practice. You can´t separate the religious from the spiritual. Why not teach Pilates or aerobics if it´s just stretching?" School officials say yoga is designed to help students be more attentive and improve their ability to focus.

The original yoga program was changed, after objections by critics, to eliminate all Sanskrit words. Students now end class here by saying "peace" rather than "namaste." But Pastor Woodrow says that even as modified, yoga incorporates aspects of Eastern religions that believe in reincarnation and pluralism,.

Soldier's Bible Carries Army's Seal

On Saturday, Black Anthem carried an article raising First Amendment questions about The Soldier's Bible and The Soldier's New Testament, published by Broadman & Holman Bible Publishers in Nashville, Tenn., which is owned by the Southern Baptist Convention. The legal issue stems from the fact that each Bible carries a gold-embossed Department of Army emblem on the front cover. Each Bible carries a small-type disclaimer on page 3: "The seal of the Army is used by permission but in no way carries the endorsement of this product by the U.S. Army, the Department of Defense or the government of the United States." But, the article asks, is that enough to avoid the Bible appearing to be a government publication?

Currently the publisher's website features the Coast Guardman's Bible, with the Coast Guard seal on the cover. Its promotion reads: "This Holman CSB Coast Guardsman’s Bible is the fifth in Holman’s series of Military Bibles. For these perilous times Holman Bible Publishers is pleased to provide the entire Bible in a format that is handsome, easy to carry, and that is designed to meet the unique needs of those who serve the U.S. in exceedingly difficult situations."

Proposed Belgian Law Would Prohibit Kosher Slaughtering

The Jewish Telegraphic Agency reported yesterday that in Belgium, proposed legislation would effectively prohibit kosher slaughtering of animals. The law would also affect dhabiha, the Muslim method of slaughtering. The law was introduced at the behest of an animal rights group, Global Action in the Interest of Animals. The Jewish community has no problem with one part of the proposed law-- limiting animal slaughtering to government-inspected abattoirs. This part is aimed at slaughtering of sheep by Muslims each year around the festival of Id al-Adha, which commemorates Abraham's being given an animal to sacrifice to God, instead of his son. But the Jewish community objects to two other parts of the proposed law. One is the mandatory stunning of animals before slaughtering, which is inconsistent with kosher slaughtering. The other is the required labeling of meat that as "ritually slaughtered". This is seen as a way of stigmatizing ritually slaughtered meat, particularly kosher-slaughtered meat that is sold in non-kosher outlets because it is from the hind quarter of animals or because it does not meet kosher standards for other reasons.

CO Library Changes Meeting Room Policy After Being Sued

In Woodland Park, Colorado, the public library has changed its policy and opened its meeting rooms to religious advocacy groups on the same basis as other groups. Denver Channel 7 reported yesterday that the change was impelled by a federal lawsuit that had been filed against the library by Liberty Counsel. The challenged policy had required advocacy groups like Liberty Counsel to allow those with opposing views to speak at their events held in the library. The library's director, Sharon Quay, said although she believed the old policy was proper, she did not want to spend scarce library funds defending a lawsuit.

Actions Against FLDS Seen As Part of Broader Fight Against Polygamy

Today's Salt Lake Tribune, in an article titled The Modern Raid on Polygamy traces the series of actions in recent months against the Fundamentalist Church of Jesus Christ of Latter Day Saints in the twin cities of Hildale, Utah, and Colorado City, Arizona. Some see this as an attack on polygamy in general, rather than just on this group's practices. They point out that in March the Utah Police Officer Standards and Training Board decertified two Hildale police officers who practiced polygamy. Not everyone is happy with these developments. Civil rights lawyer Brian Barnard represents three Salt Lake County residents who are challenging Utah's ban on polygamy.

Papers Examine Origins of Intelligent Design

In a front page article titled Politicized Scholars Put Evolution on the Defensive, the New York Times today carries a long profile of the Discovery Institute and its activities which are aimed largely at promoting the theory of Intelligent Design. It describes the Institute's strategy:

Pushing a "teach the controversy" approach to evolution, the institute has in many ways transformed the debate into an issue of academic freedom rather than a confrontation between biology and religion.

However, the Institute also has taken positions on issues such as local transportation and foreign affairs. Among the organization's backers is the Bill and Melinda Gates Foundation that gives it $1 million a year.

[UPDATED] Meanwhile, the New York Times Magazine today runs an interesting column by William Safire describing the origins of Intelligent Design. He quotes Prof. Leonard Krishtalka of the University of Kansas who describes Intelligent Design as ''nothing more than creationism in a cheap tuxedo.''

School District To Use "Winter Break", Not "Christmas Break"

Fox News today reports on a turnaround by the South Kitsap, Washington School District. In the past, the December school vacation had been called "Winter break". In May, the school board voted to instead call the vacation "Christmas break". However, Sheldon Levine, an ACLU member, wrote the school board criticizing its lack of sensitivity and arguing that the new name might violate the state Constitution's requirement (Art. 9, Sec. 4) that public schools be "free from sectarian control of influence." After receiving these objections, the board reversed itself and went back to the "Winter break" label. Needless to say, some are accusing Levine of "stealing Christmas".

7th Circuit Holds Atheism Is A Religion

In Kaufman v. McCaughtry, yesterday the US Seventh Circuit Court of Appeals held that atheism is a “religion”. Responding to a claim by a Wisconsin prisoner who was refused permission to form an inmate group to study and discuss atheism, the Court held that atheism qualifies as the inmate’s religion for purposes of his First Amendment claims.

The Court remanded the case for further proceedings to consider the Establishment Clause claims that had been raised, finding that prison officials had given no reasons to justify permitting other faiths to form prison groups, but not atheists. However the court rejected plaintiff’s Free Exercise claim. He had not shown that a weekly study group was necessary to the practice of his religion.

In a report on the case, World Net Daily quoted Brian Fahling, senior trial attorney for the American Family Association Center for Law & Policy, who said that the ruling is “further evidence of the incoherence of Establishment Clause jurisprudence.”

Trial On ME Social Studies Curriculum Starts Next Week

Next week in Bangor, Maine a federal jury trial will begin in a suit by a teacher against his school district alleging that changes in the school district’s Social Studies curriculum were motivated by religious objections of Christian fundamentalist parents. According to a report in today’s Bangor Daily News, the school board denies this claim, arguing that the changes were instead a response to curriculum standards, called Learning Results, adopted by Maine’s Department of Education in 2000.

The dispute began, however, back in 1997 at Presque Isle Middle School when two parents complained that the teacher's lessons on Cro-Magnon man violated their religious beliefs about the age of the earth. The teacher, Gary Cole, claims that shortly after the complaint, he was informed that he could only teach European history. For an earlier opinion in the case denying the school district's motion for summary judgment, see Cole v. Maine School Adm. Dist. No. 1, 350 F. Supp.2d. 143 (USDC D Maine, Dec. 3, 2004) [LEXIS link].

8th Circuit Applies Van Orden

An en banc opinion issued yesterday by the US Eighth Circuit Court of Appeals upheld the constitutionality of the display of a Ten Commandments monument in a public park in Plattsmouth, Nebraska. The case is ACLU Nebraska Foundation v. City of Plattsmouth. A three-judge panel of the same court had earlier by a 2-1 vote found the monument impermissible. The monument, donated to the city in 1965 by the Fraternal Order of Eagles, was virtually identical to the one upheld by the US Supreme court in Van Orden v. Perry earlier this year. The Associated Press yesterday reported on the decision.

Roberts At Least Is Sure About One Thing God Didn't Do

Yesterday, some 38,546 additional pages of Supreme Court nominee John Roberts' papers were released by the National Archives. They include a wide range of letters and memos issued under Roberts' name between 1982 and 1986 while Roberts served as Associate Counsel to the President in the Reagan White House. CBN reports that in one memo Roberts advised Reagan to change the language in a speech he was about to give. He urged the President not to call America "the greatest nation God ever created". Roberts wrote, "According to Genesis, God creates things like heavens and the earth and the birds and the fishes, but not nations."

Lawyer Wants No Diplomatic Immunity For Pope

The Associated Press reported on Wednesday on a press conference by Texas lawyer, Daniel Shea, who is representing three boys in a suit against Pope Benedict XVI for allegedly covering up the sexual abuse of children by a seminarian. Shea urged President Bush to abstain from confirming the Pope's diplomatic immunity. Shea said he would challenge the constitutionality of U.S. diplomatic recognition of the Vatican if the Pope is given diplomatic immunity in the case.

Indian Islamic Ruling Denies Women Full Rights To Challenge Elections

The Indian Times reports today that Darul Uloom, Deoband, an Islamic religious and academic center in India, has ruled that Muslim women should not contest elections, and if they have to, they must do so from behind the veil. The paper strongly criticizes the ruling as regressive and lacking in respect for the norms of secular democracy.

Disestablishment Urged In Britain

The Guardian reports today that the Fabian Society, a leading Labour think tank, has called for the Church of England's preferential status to end and for its bishops to the lose the right to sit in the House of Lords. In a book to be published next month titled "Islam, Race and Being British", Sunder Katwala, the society's general secretary, says that a fresh settlement is needed between religion and the state.

Vertical Grave Marker Bans Do Not Violate Religious Freedom

Yesterday, as reported by the Palm Beach Post, the federal Eleventh Circuit Court of Appeals upheld regulations imposed by a city-owned cemetery in Boca Raton, Florida. Several owners of grave sites sued the city in 1998 arguing that a requirement that only ground level grave markers be used restricted their religious freedom to erect crosses, statues and other religious symbols. The Eleventh Circuit certified to the Florida Supreme Court questions relating to the application of Florida's Religious Freedom Restoration Act here. Yesterday in Warner v. City of Boca Raton, the Court of Appeals ruled, in accordance with the Florida Supreme Court's determination, that the regulations were permissible, and also rejected other state and federal constitutional attacks on the cemetery rules.

Bishop Calls For Procedures Before Denying Politician Communion

Bishop Donald W. Wuerl of Pittsburgh has issued a statement calling for the country's Roman Catholic bishops to create a more formal mechanism or procedure to decide whether a particular politician should be denied communion because of his stand on abortion. A story issued yesterday by the Catholic News Service quoted Wuerl's concern that: "Given the mobility of the population and the ubiquity and influence of the means of social communications, actions taken by one bishop within a diocese can have immediate national impact and affect the bishops of the rest of the dioceses throughout the country, especially neighboring dioceses which share the same media market."

Azerbaijan Moves Against Wahhabism

EurasiaNet reports that in recent weeks, authorities in Azerbaijan have taken various steps to crack down on Wahhabi Islam in the country. Several arrests have been made, imported extremist religious literature has been banned and, reportedly, the Ministry of National Security has placed several mosques in Baku under its control (though the Ministry denies this).

CA Primary Conflicts With Rosh Hashanah

At the recommendation of the Orange County, California Registrar of Voters, the Governor's office has scheduled an important primary election in conflict with the Jewish High Holy Days. The Los Angeles Times reports today that the primary election to replace Rep. Chris Cox, new chairman of the Securities and Exchange Commission, has been scheduled for October 4, the first day of Rosh Hashana. Observant Jews would be unable to vote on that day. Though posing somewhat less of a conflict for adherents, October 4 is also the first day of the Muslim month-long fast of Ramadan. Jewish groups have complained about the conflict, but Orange County Voting Registrar Steve Rodermund said that absentee voting and voting early at the registrar's office in Santa Ana are available alternatives.

Parents Win Appeal On Exposure of Child To Wicca

In Jones v. Jones yesterday, an Indiana appellate court held that a trial court judge had abused his discretion in entering a divorce decree requiring parents, both of whom were practicing Wiccans, to shelter their child from involvement in and observation of Wicca. (See prior posting.) The appeals court avoided deciding the case on constitutional grounds, finding instead that the trial court had no basis for its order because it had not found any endangerment to the child’s physical health or significant impairment of the child’s emotional health. The Associated Press reported on the appellate decision. The appeal was argued by the Indiana Civil Liberties Union.

Another Roberts Church-State Memo From 1985

Another short memo by Supreme Court nominee John Roberts on church-state issues has surfaced in the over 5,000 pages of documents released earlier this week by the National Archives. (See earlier posting.) The documents cover the period during which Roberts served as Associate Counsel to President Reagan. An article in today's Kentucky Post says that Roberts advised the President in 1985 not to endorse a movement to require Kentucky public schools to hang plaques inscribed with the national motto "In God We Trust", as well as the Preamble to the Kentucky Constitution which mentions God.

Roberts wrote: "It would be inappropriate for the president to interfere in the consideration of this resolution by the Kentucky legislature by sending a message of support." Roberts said that the proposed resolution raised the same Establishment Clause concerns that led the Supreme Court in 1980 in Stone v. Graham to hold that Kentucky public schools could not be required to post copies of the Ten Commandments. "The president should not gratuitously opine on the constitutionality of this specific resolution," he concluded.

Alabama Teachers' Union Promotes Appropriate Teaching About Religion

The Tuscaloosa News yesterday reported that the Alabama Education Association is distributing two booklets on dealing with religion in the public schools to 50,000 teachers around the state. The 16-page The Bible and Public Schools and the 20-page A Teacher's Guide to Religion in Public Schools were compiled by the First Amendment Center. The booklets give guidance to people of faith on how to take an academic, rather than a devotional, approach to religion.

Comparative Law and Religion Dominates This Week's New Scholarship

A number of interesting new law review articles focusing on law and religion around the world are reported this week by SmartCILP:

Shima Baradaran-Robison, Brett G. Scharffs and Elizabeth A. Sewell, Religious Monopolies and the Commodification of Religion, 32 Pepperdine Law Rev. 885-943 (2005).

Leigh Hunt Greenhaw & Michael H. Koby, Constitutional Conversations and New Religious Movements: A Comparative Case Study, 38 Vanderbilt Jour. Transnat'l Law 615-678 (2005).

Achim Seifert, Respectful Religious Pluralism In the Workplace. (Reviewing Douglas A. Hicks, Religion and the Workplace: Pluralism, Spirituality, Leadership.) 25 Comparative Labor Law & Pol'y J. 463-475 (2004).

Ann Black, Survival or Extinction? Animistic Dispute Resolution in the Sultanate of Brunei, 13 Willamette Jour. Int'l Law & Dispute Resolution 1-25 (2005).

Natan Lerner, How Wide the Margin of Appreciation? The Turkish Headscarf Case, the Strasbourg Court, and Secularist Tolerance, 13 Willamette Jour. Int'l Law & Dispute Resolution 65-85 (2005).

Peter Cumper, Book Review. (Reviewing Regulating Religion--Case Studies from Around the Globe, edited by James T. Richardson.) 13 Willamette Jour. Int'l Law & Dispute Resolution 87-108 (2005).

Vanessa Von Struensee, Stoning, Shari'a, and Human Rights Law in Nigeria, 11 William & Mary Jour. of Women & Law 405-425 (2005).

More Churches Closed Down In Indonesia

In West Java, Indonesia, Members of the Indonesian Council of Ulama (MUI), an organization of Muslim Clerics supported financially by the Indonesian government, last weekend entered eight Christian churches during worship services and ordered them closed. Christian Today has reported that this follows the issuing of eleven fatwas by the MUI condemning of any religious teaching "influenced by pluralism, liberalism and secularism". Since the end of July, 35 churches have been closed down in West Java. The closings are also being linked to the ongoing trial of three Christian women accused of enticing Muslim children to convert to Christianity through an after-school program called "Cheerful Sunday".

Challenge To Parochial School Closing Rejected On First Amendment Grounds

The Westchester County New York Journal News reported yesterday that a trial court judge has dismissed a lawsuit by parents and parishioners of St. Pius X Catholic Church in Scarsdale seeking to prevent the Archdiocese from closing the parish school. Justice Gerald Loehr held on Monday that the First Amendment protects the authority of the Church to decide where it will locate parochial schools.

India's Supreme Court Asked To Invalidate Sharia Tribunals

In India, both the Deccan Herald and the Hindustan Times yesterday have reported on a petition filed with the Supreme Court of India challenging the Sharia courts being run by the All India Muslim Personal Law Board and the Islamic seminary Darul-Uloom. These courts operate in the states of Uttar Pradesh, Haryana, Assam, Madhya Pradesh, Rajasthan, West Bengal and Delhi. The suit seeks to restrain these organizations from establishing a parallel Muslim judicial system. It also seeks an order instructing them to refrain from interfering with the marital status of Muslim citizens and passing any judgment, remark or fatwa as well as deciding matrimonial disputes among Muslims. The petition, filed by advocate Vishwa Lochan Madan, urges the court to decide whether Article 25 of the Indian Constitution guaranteeing religious freedom includes the right to administer justice based on faith. (See prior related posting.)

UPDATE: Here from the Milli Gazette is the response of the Shariath Protection Council, arguing that the challenged tribunals are merely arbitration forums.

Prisoner Alleges No Shi'ite Clergy Permitted

In Cancel v. Mazzuca, 2005 US Dist. LEXIS 16713 (SDNY, Aug. 11, 2005), plaintiff, a former prisoner, alleges that the Islamic Affairs Coordinator for the New York State Department of Correctional Services violated plaintiff's religious exercise and free expression rights by hiring only Sunnis , and no Shi'ites, to serve as imams at New York correctional facilities. He also claims that defendant directed these imams to deny non-Sunni Muslims the opportunity to practice forms of Islam other than Sunnism. In this decision, the court ordered the defendant to respond to certain interrogatories.

Passions Still High On 10 Commandments In TN

The passion over displays of the Ten Commandments on public property seems to be as high as ever. Yesterday's Greeneville Sun reported on a County Commission meeting debating what to do with a privately-funded Ten Commandments plaque hanging in the front hall of the Greene County, Tennessee, courthouse. A petition carrying 4000 signatures supported leaving the plaque in place. A packed audience heard three local citizens support the petitions with statements that bordered on, or perhaps crossed the border to, hyperbole.

Danny Ricker, an ordained minister who is also the employee in charge of maintenance of county buildings, spoke first. Representing an organization called Citizens for Truth, he said that the Ten Commandments are part of the nation’s heritage, "but it’s our Lord and Savior Jesus Christ we’re talking about today" as well. He continued, "It’s time we get some backbone about it."
Ricker said Americans have stood by for too long and let their religious freedoms be taken from them. "I believe in obeying the law of the land until they start messing with my Lord," he said.

The second speaker, Ray Rowney, also representing Citizens for Truth urged the County to leave the plaque in place and publicly reaffirm support for the God and Country wall as "now more necessary than ever" to correct what he called "an unconstitutional act by the Supreme Court justices."

The final speaker was Gerben Hoekstra who said that when he was 10 years old, "I saw Hitler’s soldiers come past our house on beautiful brown horses," to occupy Holland, "my birth country". "Now I see the same injustice happening to my beloved adopted country. The forces of good have mostly been silent and let this slow erosion of our freedom happen.... We can lie down and play dead and let evil win." Or the Ten Commandments plaque can be left in place with a "wait and see" attitude adopted. But if this is done, he said, "Evil will win again, with a slight delay." He concluded: "So far, our rights have been defended by lawyers," who tend to get tangled in "legal mumbo-jumbo." In the future, he said, "I suggest we use laymen."

Further Order In Case of DC Muslim Firefighters' Beards

In Potter v. District of Columbia (US Dist. Ct. D.C., Aug. 11, 2005), the court issued a Memorandum and an Order in the long-running dispute between Muslim firefighters who wish to wear beards for religious reasons, and the DC fire department that argues it is impossible to use certain face masks with a beard. Judge James Robertson ordered the fire department to allow plaintiffs to take an appropriate face-fit test despite the department's argument that reliable tests are impossible because of day-to-day variability of hair length on beards.

Dismissed Pastor's Suit Rejected

In Denny v. Prince, 2005 Va. Cir. LEXIS 85 (Va. Cir. Ct. Portsmouth, Aug. 8, 2005), a Virginia trial court dismissed a suit by the former Pastor of Cradock Baptist Church against those who were responsible for his firing. The Pastor claimed that the church finance committee held secret meetings, and asserted he had performed improper financial transactions regarding church property. He also claimed irregularities in the vote on his dismissal. The court , in a long opinion, said that ecclesiastical decisions regarding the appointment and removal of pastors are generally beyond the jurisdiction of secular courts.

New NJ Local Zoning for Houses of Worship Is Controversial

A controversial Houses of Worship Act setting new zoning standards for houses of worship in Marlboro Township, New Jersey was the subject of an article in today's Farmingdale NJ News Transcript. The ordinance changes the lot coverage and setback standards, parking space and the acreage requirements for a house of worship, though existing buildings and expansion of them are grandfathered in under old standards. Supporters say the new law is an attempt to create a balance between neighborhoods and houses of worship. Opponents say it effectively prevents any new houses of worship from being built.

Teacher Sues Over Removal of Religious Posters

The Rutherford Institute announced last week that is has filed a lawsuit in a Virginia federal district court against the York County, Virginia schools on behalf of a public high school Spanish teacher whose religious-themed posters were removed from his classroom while he was out sick. The Complaint (full text) in Lee v. York County School Division alleges violations of the free expression and equal protection provisions of the US and Virginia constitutions.

British Muslims React To PM's Statements

The Guardian today has published the full text of a joint statement by 38 British Muslim groups and individuals who "fear that recent events are being exploited by some sections in society to demonise legitimate Islamic values and beliefs". Reacting to statements and proposals by Prime Minister Tony Blair since the London bombings, the statement says: "To equate "extremism" with the aspirations of Muslims for Sharia laws in the Muslim world or the desire to see unification towards a Caliphate in the Muslim lands, ... is inaccurate and disingenuous." It also asserts that "the proposal to close mosques if they are arbitrarily defined as being "extremist" or to try and politically influence what may or may not be said during a religious talk ... would amount to a collective punishment of the community and will be likely to create fear and prevent legitimate political discussion within mosques."

Local Breakaway Episcopal Church Awarded Church Property

Today the Los Angeles Times reports on a decision by an Orange County, California Superior Court judge that awarded millions of dollars of church property to the breakaway Newport Beach parish that severed ties with the Episcopal Church over scriptural teaching and homosexuality. Judge David C. Velasquez's rejected the Episcopal Diocese of Los Angeles' claim that under canon law the local congregation, St. James Episcopal Church, held the property in trust for the diocese, and that it forfeited any right to the buildings and other property, including hymnals, when it broke with the diocese and national church. He said that church property disputes must be resolved under neutral principles of law. The diocese said it would appeal the ruling, which also relied on First Amendment free expression rights of the church.

1985 Memos By SCOTUS Nominee Roberts On School Prayer

The National Archives last week announced that it would release today 5,383 pages from the records of the Staff Member Office Files of John G. Roberts Files, 1982-1986. Included in these papers (which have been released but are not available online) are two memos on school prayer written by Supreme Court nominee John G. Roberts when he Associate Counsel to the President in the Reagan White House. Bloomberg News reports on much of the text of the memos. The Washington Post quotes other portions of them.

On June 4, 1985, the day the decision was released, Roberts sent White House Counsel Fred Fielding a memo analyzing the Supreme Court decision in Wallace v. Jaffree . He pointed out that the Court found that lawmakers who sponsored Alabama's moment of silence law had an express purpose to return voluntary prayer to schools. Roberts wrote: "The statute was thus struck down because of the peculiarities of the particular legislative history, not because of any inherent constitutional flaw in moment-of-silence statutes." Roberts also wrote that despite the Court's conclusion, "careful analysis shows at least a majority of the justices would vote to uphold a simple moment of silence statute." He went on to speculate that "the outcome of this case shifted in the writing." He said he thought Justice William Rehnquist had started out writing a majority opinion to uphold the law, but his argument went too far for Justices Sandra Day O'Connor and Lewis Powell, both of whom ended up filing concurring opinions. Roberts continued: "Thus, as I see it, Rehnquist took a tenuous five-person majority and ... ended up losing the majority."

In a November 21, 1985 memo to White House Counsel Fred Fielding, Roberts suggested that the White House could expect the Justice Department to support a Constitutional amendment permitting silent prayer in public schools. He wrote: "I would have no objection to such a position statement. Many who do not support prayer in school support a 'moment of silence'." Analyzing the Supreme Court's holding in Wallace v. Jaffree, he said that its conclusion "that the Constitution prohibits such a moment of silent reflection --or even 'silent prayer''-- seems indefensible.''

LA School Case Settled After Parents Move

Last Friday the Associated Press reported that the ACLU of Louisiana and the Bossier Parish School District settled a claim that the school district had violated the Establishment Clause by permitting a teacher-led prayer group during recess, and various Christmas activities. The suit, brought on behalf of parents of two school children, claimed that the children were sent to computer lab while others practices Christmas carols with religious themes. Also the school displayed a nativity scene in the library during the holiday season. On April 4, the U.S. District Court partially dismissed the case because the family had moved. The school's position was defended by the Alliance Defense Fund, whose attorney, Mike Johnson, said: "Stockwell Place Elementary School's display of a creche was unquestionably lawful and legitimate, and its allowance for equal access for Christian student organizations is in perfect compliance with the First Amendment." (ADF announcement of settlement.)

Justice Sunday II Report

Many newspapers this morning are reporting on the Justice Sunday II program that originated last night in Nashville and was broadcast to churches around the country. Sponsored by prominent Christian conservatives, Justice Sunday II was titled "God Save the United States and This Honorable Court". (See prior posting.) Typical of reports on the program is this article from the Chicago Tribune . Most political attention focused on remarks by Congressman Tom DeLay who said that the Constitution assigned Congress the power to make laws, but "this fact ... has been forgotten in recent decades by too many members of the American judiciary, including, most notably, the United States Supreme Court itself." A more interesting proposal was the one by the president of the Catholic League for Religious and Civil Rights, William Donohue. He urged a constitutional amendment to provide that "unless a judicial vote is unanimous, you cannot overturn a law created by Congress."

Also, a dozen bloggers entered live postings from the Justice Sunday II rally. Links to them are on the Justice Sunday II website.

Haaretz: "Beware the Zealots"

In Israel, religious opposition to the government's decision to disengage from the Gaza Strip continues to pose intriguing issues of the relationship of religion to government. Today's Haaretz carries an interesting editorial reflecting on the impact of religious zealotry in a democracy. The setting for the comments is today's Jewish holiday of the Ninth of Av which commemorates, among other tragedies, the destruction of the Second Temple in Jerusalem the year 70 C.E. The editorial is worth quoting at length:

"The destruction of the Second Temple was not only the ruin of the physical Temple in Jerusalem, it was also the ruin of the national home. The actual destruction was carried out by foreigners, but it was the blind zealots, saturated with a megalomaniacal hunger for power, who presumed to lead the tiny Jewish state on their own stubborn path, turning their back on political reality and speaking in the name of a single principle: religion, according to their interpretation."

"The zealotry of those who destroyed the Temple and the national home sprouted from the fundamentalist flower beds of the religious hierarchy, which cloaked itself in eternal power in the name of a jealous God, deaf to the world and refusing all compromise. In the struggle over the image and existence of that Jewish state, the zealots bested the yearners for peace. The former chose suicide, slaughter and exile, and sealed the fate of the entire Jewish people. Much to our horror, the third Jewish commonwealth now faces a challenge which draws its inspiration from similar sources."

'The location is identical, and the balance of power between the state and the international community is similar. Once again, the fragile sovereignty of a state fighting for survival can be perceived. Once again, a stubborn, irresponsible, megalomaniacal group of zealous rabbis has arisen, kicking indiscriminately at the sovereignty of the state and at the chances for a normal, just life within the family of nations, and threatening to bring down the house if it does not get its way."

Bishop Harry Jackson Profiled In Post

Yesterday's Washington Post profiled Bishop Harry Jackson, pastor of Hope Christian Church in Lanham, Maryland, who has launched a campaign to get 1 million people to sign his "Black Contract With America". The document calls for a return to "biblically based values," such as preserving a traditional definition of marriage and eliminating abortion. Only a few thousand people have signed on so far. However Jackson is increasingly active with the Republican Party and was among a number of Black clergy recently hosted at the White House to discuss African Debt Relief. Jackson has been speaking around the country in support of Republican-backed judicial nominees, and he will participate in today's national broadcast titled Justice Sunday II sponsored by the Family Research Council in support of conservative judicial nominees.

New SSRN Article on Free Exercise

St. John's Law School Prof. Nelson Tebbe, has posted a new article on SSRN: Free Exercise and the Problem of Symmetry. The article will appear in the Hastings Law Journal.

Pakistani Court Imposes Life Sentence for Blasphemy

The Gulf Times reported yesterday that a Pakistani anti-terrorism court sentenced writer Younus Shaik to life in prison for writing an allegedly blasphemous book about the Qur’an and the Islamic justice system. The book, titled "Satanic Cleric" described the "four Imams" as Jews, public prosecutor Naimat Ali Randhawa said. The four Imams were the third generation interpreters of the religion after the Prophet Muhammad, and their views on law are widely respected by Muslims, he said. Shaik was also found to have committed blasphemy by saying that stoning to death for adultery was not mentioned in the Qur’an. Pakistani newspapers said Shaik was a hotel manager who had little academic background and no religious education.

Fraternity Claims Religious Infringement In Refusal To Admit Its Return To Campus

Bloomberg.com reports today on a law suit filed against the University of Delaware by Alpha Epsilon Pi Fraternity. The Fraternity was banned from Delaware's campus 5 years ago for violating the University's code of conduct. Now, in a case filed in the Delaware Chancery Court, the Jewish fraternity claims that its free exercise of religion, as well as its free speech rights, are being violated by not allowing the group back on campus. The University claims that the fraternity will not be reinstated until at least 2009 because last October it held an illegal meeting seeking to recolonize. Richard McKaig, director of the Center for the Study of the College Fraternity, said he knows of no other case where a fraternity has attempted to be readmitted by claiming religious discrimination.

Ad On Gaza Raises Issues of Appropriate Religious Argumentation

A full page ad in today's New York Times titled An Open Letter to the President of the United States raises interesting questions about the appropriate use of religious argumentation in the Public Square. The letter, from a group of ultra-Orthodox Jews who follow the Lubavitcher Rebbe's teachings, asks President Bush to halt Israeli Prime Minister Ariel Sharon's Gaza Disengagement Plan. Here are some excerpts from the letter:

"By endorsing such actions, Mr. President, you foster the violation of two of the seven universal Noahide laws; causing the death of innocent human beings, and enabling the theft of personal property. Will your own conscience be clear Mr. President? Can you be at peace with yourself once the disastrous and irremediable effects of these actions become manifest? Remember! This is no less than a declaration of war against G-d and his holy Bible.... America's greatness and its might derive from the proud belief that "In G-d we trust." Now is the time to listen to Him and honor His eternal bond.... G-d has chosen you, Mr. President, to bring peace to the world, and to triumph over the forces of evil. He will bless your efforts only if you make manifest your concern for the welfare of His people and their Holy Land."

IN Court Holds Parents Liable For Child's Medical Bill Despite Religious Objections

In Schmidt v. Mutual Hospital Services, Inc., decided Wednesday, an Indiana state Court of Appeals held that parents are liable for over $171,000 in medical incurred in the treatment of their daughter in the neonatal intensive care unit, even though the parents had informed the hospital that they had religious objections to the medical treatment and would not pay for treatment given without their consent. The court found that the baby's initial treatment was emergency in nature, and that the parents were therefore liable for its costs. But that the hospital continued after the emergency passed to treat the infant over the parents' religious objections and without obtaining a court order. Nevertheless, the court held that the parents' failure to demand the child's release after the initial emergency, and their failure to themselves seek a court order to stop the treatment, operated as tacit consent to the treatment. Their religious objections did not negate their obligation to provide and pay for necessary medical care for their child. A concurring opinion argued that all the care the infant received was emergency care for which the parents were responsible.

Teacher's Claim On Use of Historical/ Religious Materials In Class Settled

The San Jose Mercury News reports today on the settlement of a much-publicized lawsuit by fifth-grade teacher Stephen J. Williams against Cupertino Union School District officials. Willams claimed that his First Amendment rights were infringed when the school principal and other officials limited his classroom use of historical documents with religious references in them. (See prior posting.) The settlement agreement, filed in federal court in San Jose on Thursday, restates the district's existing policy that "allows teachers, no matter what their religious beliefs, to use appropriate educational material, (including supplemental handouts of historical significance) during instructional time that has religious content -- so long as it is objective, age appropriate, and in compliance with curriculum." A website set up by Stevens Creek parents gives more information on the controversy.

New Tack Attempted in WI Priest Sexual Abuse Claim

The Associated Press reports today on a suit filed in Wisconsin that is attempting to get around the state's restrictive legal doctrines that prevent most suits against the Church for sexual abuse of children by priests. (See prior related posting.) The plaintiff, a man who claims he was sexually abused by a Roman Catholic priest for six years, has sued the Milwaukee Archdiocese for fraud.

Challenge To Christian Prayers At Commission Meetings in GA

The ACLU of Georgia announced yesterday that it had filed suit on behalf of 5 residents against the Cobb County Commission and Planning Commission over the kinds of prayers that are recited before Commission meetings. The suit seeks to keep the prayers free of references to specific religious denominations. An ACLU staff attorney said: “Cobb County is a diverse county and citizens of all religions and non-religion should be welcome at government meetings. If the County chooses to begin its meetings with a legislative prayer, it should not show a bias for one particular faith over another.” The lawsuit claims that the overwhelming majority of prayers at the meetings are given by Christian clergy and are made in the name of Jesus Christ.

NY Case Challenges School Rental By Churches

The Washington Times yesterday reported on an hearing scheduled for today in a New York Federal district court in Bronx Household of Faith v. Board of Education of the City of New York. The case involves a challenge to religious groups' renting of space in public school buildings on week ends for religious services, on the same basis that school buildings are available to non-religious organizations. In 2002, the court issued a preliminary injunction allowing about 24 churches and a mix of other religious groups to meet in 1,197 schools in the city's school system. That decision was affirmed by the Second Circuit (full opinion). Now Bronx Household is now asking the district court to make the order permanent. But the city wants the the temporary injunction rescinded. Lisa Grumet, senior counsel for New York City's law department, says: "Given the diverse backgrounds of the children attending the city's schools, the city is concerned about having any public school identified with a particular religion or congregation."

Proposal Looming To Permit Religious Hiring Criteria In Head Start Programs

In a release yesterday, the Anti Defamation League says that when the bill reauthorizing the Head Start Program comes before the House of Representatives in the near future, an amendment is likely to be offered which, for the first time, would permit Head Start programs run by religious organizations to engage in religious discrimination in hiring and firing of teachers and staff. The House Education and the Workforce Committee on May 18 approved the Head Start reauthorization legislation (H.R. 2123, the School Readiness Act) by a bipartisan, unanimous vote, with the existing anti-discrimination provisions in it. However Committee Chairman John Boehner, with the support of the administration, has announced that he intends to offer an amendment on the House floor to repeal the anti-discrimination provisions so that religious criteria could be used for staffing.

Gaza Withdrawal Poses Religious Crisis For Orthodox Jews

BBC News reports today that Israeli Prime Minister Ariel Sharon's decision to withdraw from Gaza has created spiritual turmoil in the Orthodox Jewish community in Israel. Most authorities on Jewish law say that land in the Biblical boundaries of Israel can only be given up if doing so would guarantee the preservation of Jewish lives.

Former Chief Rabbi Avraham Shapira has issuing a ruling declaring the disengagement forbidden under Jewish law He said: "This prohibition applies to every Jew, soldier and civilian alike. An order to take part in the evacuation of Jews from their homes in order to give over the land to non-Jews is an order that is against the religion of our holy Torah and forbidden to fulfill. Anyone who violates this prohibition will not be exonerated, not in this world and not in the world to come." Not all Orthodox rabbis agree. US Yeshiva University Chancellor, Dr. Norman Lamm said he and other rabbis "felt very strongly that actual disobedience on the part of the Israeli forces would constitute a desecration of God's name that would haunt [the Jewish people] for generations".

Wisconsin Buddhists Face Opposition to Zoning Approvals

The newest clash before zoning authorities over obtaining permission to build religious facilities is about to take place in rural Caledonia, Wisconsin. Yesterday's Milwaukee Journal Sentinel reports on attempts by the Wat Lao Wattanaram Buddhist Temple of Wisconsin to obtain clearance to build a temple, meditation building, fellowship hall, Buddha building and nun facility on a 13 acre site that had been designated for a conservation subdivision and single-family homes. Residents say housing would contribute to the town's tax base, while the religious facility will not. The Buddhists who would use the temple are mainly immigrants from Laos or first-generation Laotian-Americans. They say the land is ideal because of its location.

CT Court Upholds Church In Dispute With Parent Body Over Pastor, Property

In Annual Conf. of Unison Freewill Baptist Church v. St. Luke's Unison Freewill Baptist Church, 2005 Conn. Super. LEXIS 1771 (Conn. Super. Ct., July 20, 2005), The Annual Conference of the Unison Free Will Baptist Church, its presiding bishop and various current and former members of St. Luke's Unison Freewill Baptist Church sued to remove Rev. Jesse Polite, Pastor of St. Luke's, and to gain control of the church property. Plaintiffs allege that various defendants have refused to recognize the authority of the Annual Conference to remove Rev. Polite. The majority of the congregation supported Rev. Polite and had voted to withdraw from the Annual Conference. The court decided that the church here had a congregational, and not an hierarchical, structure, and the the articles and by-laws of the church do not support the authority of the Annual Conference to suspend the pastor or determine disputes about the ownership of church property.

Fourth Circuit Upholds Pledge

[UPDATED AND CORRECTED] The Associated Press reports today that the US Fourth Circuit Court of Appeals on Wednesday upheld a Virginia law that requires public schools to lead a daily recitation of the Pledge of Allegiance. It rejected a claim by the father of public school children that the pledge violated the Establishment Clause of the First Amendment. Instead, the court said, the pledge is a patriotic exercise. The full opinion in Myers v. Loudon County Public Schools is available online.

Plaintiff's claim was unusual. As the District Court described it: "Myers appears to claim that the pledge violates the Establishment Clause because it creates and supports the state sponsored religion of "God and Country." Myers' claim, as it relates to the pledge statute's impermissible state establishment of religion, is unique. Indeed, previous claims brought challenging the constitutionality of the pledge of allegiance as violative of the Establishment Clause focused on Congress' insertion of the phrase "under God" as establishing monotheism as a state sanctioned religion.... In contrast, Myers objects to the Pledge in its entirety, not simply the phrase "under God." 251 F. Supp.2d 1262 (DC EDVa., 2003) [LEXIS link].

Kansas Evolution Standards Move Ahead

The Wichitaw, Kansas Eagle reports today that the Kansas State Board of Education yesterday approved by a 6-4 vote the latest draft of science standards that include greater criticism of evolution and the origins of life. The board will now send the standard to be reviewed by outside academics., and will vote on final approval in October. (See prior posting.)

Magistrate Recommends No Injunction In VT Religious Plate Case

The Rutland, Vermont Herald reports today that a federal magistrate has recommended against issuing an injunction to require the state Department of Motor Vehicles to issue a West Rutland man a vanity license plate with a biblical message, "JN36TN", on it. (See earlier posting.) However the magistrate refused to dismiss the case entirely. Attorneys have until next week to decide if they will file any objections to the report. Then it will be up to a U.S. District Court judge to decide whether to adopt the magistrate's recommendations. The Magistrate wrote: "Although the statute appears to be viewpoint neutral on its face, Byrne asserts that some religious references have been permitted by the DMV. If that is the case, Byrne may have a viable equal protection claim, as distinctions between religious speech would not reasonable."

Impact of Bush's Statement on Intelligent Design

Yesterday's San Francisco Chronicle carried an interesting story on the impact of President Bush's recent statement encouraging the teaching of Intelligent Design. It suggests that this has encouraged proponents to do more to challenge biology teachers, such as presenting teachers with a list known as "Ten Questions to Ask Your Biology Teacher".

Nonprofits Urge Cautious Reforms on Noncash Contributions

BNA's Daily Tax Report yesterday [subscription required] reported that a group of 280 nonprofit organizations (including religious ones) signed onto a July 20 letter urging Sens. Charles Grassley (R-Iowa) and Max Baucus (D-Mont.) to adopt recommendations on the donation of noncash gifts contained in a June Independent Sector report.

The letter recommended continuing to base noncash donations on fair market value--as well as strengthening the definition of a qualified appraisal and appraiser, as recommended by the Independent Sector report. (Full text of Independent Sector report.)

The letter from the nonprofits also urged adoption of several other recommendations from the report, including expansion of penalties on taxpayers who grossly inflate valuations, imposing penalties on appraisers who make such valuations and mandating of electronic filing of Forms 8282, Donee Information Return, and 8283, Noncash Charitable Contributions. It continued: "As you are considering reforms relating to the donation of noncash gifts, we urge you to move with caution," the letter said, "given the importance of such donations to many kinds of charities." [Thanks to Steven Sholk for this information.]

MA Legislature To Consider Church Financial And Property Disclosures

According to today's Boston Globe, this week the Massachusetts legislature will be considering a bill that would require all religious organizations to file annual financial reports and a list of real estate holdings with the attorney general's charities division. The legislation is opposed by the Catholic Church and major mainline Protestant denominations. The bill is discussed further at The Bostonist.

Arkansas Fears Results of Increased Immunization Exemptions

The Arkansas News Bureau yesterday published an interesting, and perhaps troubling, follow-up to an Establishment Clause victory in Arkansas over school immunization policy. Before 2003, parents or legal guardians seeking a waiver to keep a child from receiving immunization could do so only on religious or medical grounds. To satisfy the religious exception, parents had to be members of a recognized church. In 2002, in Boone v. Boozman, 217 F. Sup. 2d 938 [LEXIS link], the federal district court found the singling out in the statute of recognized churches for preferential treatment violated the establishment and free exercises clauses of the First Amendment.

In response to this, the Arkansas legislature joined 16 other states to add "philosophical reasons" to the statute as a basis for excusal from immunization. That has led to an almost doubling of the number of children who have been granted immunization waivers in Arkansas. During the 2004-05 school year, 100 students obtained medical waivers, 366 obtained a waiver on religious grounds, and 731 obtained a waiver for philosophical reasons. Most of the children are concentrated in six counties in the northwest part of the state.

State health officials now fear that this will lead to an outbreak of preventable diseases in the state. "We will see an outbreak," said Dr. Sandra Snow, medical director for the state Department of Health's Communicable Disease/Immunization Program. "The question is how many years is it going to be before it hits."

Compromise on Sikh Headwear In French Schools

A controversial French law enacted last year that banned conspicuous religious symbols and attire in public schools has posed problems for Sikh students, as well as others. Now, however, there appears to be some compromise on the part of the French government. The Panthic Weekly reported yesterday that lobbying by the Sikh community in France and around the European Union, as well as behind-the-scenes pressure by the government of India, has led to permission for Sikh students to wear "patkas"-- which are headscarfs or under-turbans. The Sikh community in France hopes this is a first step toward allowing students to wear the dastar (turban).

Russert Quizzes Cuomo and Kmiec on Roberts and Religion

Today on Meet the Press, Tim Russert interviewed former New York Governor Mario Cuomo and Law Professor (former Dean of Catholic University Law School) Douglas Kmiec on whether Supreme Court nominee John Roberts should be questioned in confirmation hearings about his religious beliefs. The full transcript of the interview is available online.

San Diego City Atty. Claims Proposed Lease Violates Establishment Clause

In San Diego, California, the San Diego Concourse is a city-owned mid-sized convention facility used primarily for local meetings and community events located next to City Hall. It has been losing money. So the city began looking for someone new to lease and operate the Community Concourse, including its Golden Hall. In June, the city's real estate division negotiated a lease agreement with a nonprofit business subsidiary of the North Park Apostolic Church. The lease would allow the church to rent the hall from its subsidiary, which would also lease the space to community groups. Today the San Diego Union Tribune reports that City Attorney Michael Aguirre believes that the lease violates the Establishment Clause. The lease for the concourse would require the city to "convert public property to a full-time church," he said.

College Resists Unionization On Religious Grounds; Hospitals Back It

The UAW is seeking to represent teachers at Carroll College in Waukesha, Wisconsin. The college, Presbyterian in its origin, is arguing to the National Labor Relations Board that allowing its faculty to unionize would force the school to put federal labor law above its religious mission. In January, 2005, in Carroll College, Inc. v. International Union UAW, the NLRB's Regional Director ruled against the College. The case was then appealed to the full NLRB. On Thursday, the Milwaukee Journal Sentinel reported that a West Coast chain of Seventh Day Adventist hospitals has now intervened in the case by filing a brief with the NLRB in support of the college's religious freedom arguments.

New Saudi King Pledges Quran As His Constitution

Earlier this week, Saudi Arabia's King Fahd Ibn Abdul Aziz died and was succeeded by his half-brother, Abdullah. (Washington Post report.) Yesterday, Ain Al-Yaqeen reported on King Abdullah's speech to the citizens of Saudi Arabia. In his address, the country's new ruler made clear the important place of Islam in the nation. He said: "I promise you to take the holy Quran as a Constitution and Islam as a way of life." He added: "I will dedicate my time for enhancing the pillars of justice and the service of all citizens without any discrimination." King Abdullah is taking the title that his predecessor King Fahd had adopted: "The Custodian of the Two Holy Mosques".

Hasba Act In Pakistan Province Declared Unconstitutional In Part

An earlier posting discussed the Hasba Act passed by the legislature in Pakistan's North West Frontier Province. The act creates the office of the muhtasib, a religious ombudsman whose function is to assure that people strictly follow Islamic rules. Pakistan's President Pervez Musharraf submitted the Act to Pakistan's Supreme Court for an advisory opinion on its constitutionality. On Thursday, the Supreme Court ruled several clauses in the Act unconstitutional, and said that the province's governor may not assent to the bill in its present form. The Court's reasons for its decision will follow. A report yesterday by Dawn gave these details:

"The sections declared ultra vires by the court relate to powers and duties of the mohtasib under which he has to protect and watch the Islamic values and etiquettes and can monitor adherence to moral values of Islam at public places, discourage extravagance, particularly at the time of marriages and other family functions, follow the code of Islam in giving dowry, monitor adherence of Islamic values, its respect and regard at the times of iftar and taraveeh, discourage entertainment shows and business transactions at the times of Eid and Friday prayers around mosques, etc." The Provincial government will apparently now consider an amended bill that takes account of the Court's decision.

Bush Allies Differ With Him On Intelligent Design

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

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

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

MI County Outlaws False Halal and Kosher Labeling

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

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

Some School Prayer Claims Dismissed On Procedural Grounds

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

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

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

Malaysia Charged With Persecuting Sky Kingdom Sect

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

US Muslim Academics Criticize Anti-Terror Fatwa

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