Happy New Year and Thanks To Religion Clause Readers

Dear Religion Clause Readers:

Happy New Year! As we enter one of the most challenging years in U.S. history, I want to thank all of you who read Religion Clause. To the long time followers, thanks for your continuing interest; to those who have joined us more recently, welcome aboard! It has been a year packed full of news and developments relating to law and religion. And it has been a good year for Religion Clause blog. The site meter shows that the blog has attracted over 430,000 visits since it began in 2005. Over 205,000 of those were registered in 2008. This past year, Religion Clause was again named by the ABA as one of the 100 best legal blogs. Also this year, upon reader request, I have added an option permitting you to receive Religion Clause through daily e-mails. Some individuals appear to favor that delivery method. (Scroll to bottom of sidebar to sign up).

Religion Clause's established format of strict neutrality, broad coverage and links to numerous primary sources seems to have filled a special niche for those interested in the areas of church-state and religious freedom. I am pleased that my regular readers span the political and religious spectrum. Thanks also to those of you who send me leads to new developments. I read and appreciate receiving them, even though I cannot always acknowledge them. They help me assure that the coverage of the blog is complete.

Best wishes for 2009!

Howard M. Friedman

Christmas Music Case Is On Appeal in 3rd Circuit

Today's New Jersey Jewish News discusses the pending appeal in the 3rd Circuit of Stratechuk v. Board of Education, South Orange Maplewood School District, in which a New Jersey federal district court upheld a school board's holiday music policy that barred inclusion of religious holiday music in school holiday concerts. (See prior posting.) The Thomas More Law Center filed the appeal, arguing that the ban amounts to hostility toward religion, that it changes Christmas from a religious to a secular holiday and that it deprives students of the right to receive information and ideas. The American Jewish Congress is coordinating an amicus brief supporting the lower court's holding.

Vatican Will End Automatic Adoption of Italian Law

ANSA and the Times Online of London report that starting today, the Vatican will end the practice adopted under a Vatican statute signed in 1929 of automatically incorporating laws passed by Italy's Parliament into the Vatican's legal code (except in cases of radical incompatibility with canon law). A new Vatican statute signed in October by Pope Benedict XVI comes into effect today. It requires each Italian law to be carefully examined before being incorporated into the Code of Vatican Law. New international treaties will also be carefully examined. The change stems largely from concerns about liberal Italian laws on divorce and abortion, and trends in Europe that could find their way to Italy on same-sex civil unions and euthanasia, although the Vatican is also concerned about the sheer number of laws passed by Italy's Parliament.

Brokerage Firm Settles EEOC Religious-National Origin Discrimination Suit

Reuters reported yesterday that Merrill Lynch has agreed in a settlement with the EEOC to pay former employee Majid Borumand $1.55 million in damages, back pay and legal fees in a suit alleging that the financial analyst was not promoted and then was fired because he was an Iranian Muslim. Merrill also agreed to train employees to avoid future religious and national origin discrimination and retaliation. The EEOC will monitor Merrill for two years.

EEOC Gets Settlement To Reinstate Seventh Day Adventist Worker

Today's Sacramento Bee reports that Sierra Pacific Industries has entered a consent decree with the EEOC in a suit on behalf of a Seventh Day Adventist who was fired from the company's Oroville, California lumber mill when he refused to work Friday night shifts for religious reasons. The settlement reinstates Luciano Cortez and permits him to work a Monday through Friday day shift so he can be off on his Sabbath. It also awards him damages. The consent decree, approved by a California federal court last week, also requires the company to train its managers annually on accommodation of employees' religious beliefs and other discrimination issues, and to report annually to the EEOC.

DC Circuit Rejects Free Exercise Challenge To DNA Sampling

In Kaemmerling v. Lappin, (DC Cir., Dec. 30, 2008), rejected a federal prisoner's free exercise challenges the government's taking of a required DNA sample from him pursuant to the DNA Analysis Backlog Elimination Act. Russell Kammerling argued that as an Evangelical Christian, submitting to DNA testing is repugnant to his religious beliefs regarding the proper use of "the building blocks of life." He views the collection and retention of DNA samples as laying the foundation for the rise of the anti-Christ.

First, the court held that Kammerling need not exhaust administrative remedies, because the Bureau of Prisons had no authority to grant him any relief on this issue. Moving to the merits, the court rejected Kammerling's challenges under the First Amendment and RFRA. As to RFRA, the court concluded that the DNA collection does not burden any exercise of religion by Kammerling-- it does not pressure him to change his behavior. Even if his religious exercise were burdened, the court concluded that the government had a compelling interest in collecting prisoners' DNA. Yesterday's Washington Post reported on the decision.

Amish Farmer Charged For Failing To Register Livestock Premises

Yesterday's Chicago Tribune reports that for the first time in Wisconsin, an Amish farmer has been charged civilly with failing to comply with the state's livestock premise registration law. The law is designed to facilitate notice to farmers when there are emergencies or disease outbreaks. Emanuel Miller, Jr.'s failure to register slowed down the state's response to a 2007 outbreak of pseudorabies. The Amish are concerned that the identification number that will be assigned to their farm could be considered the "mark of the beast." Miller faces a possible fine of up to $5000.

NY Court Refuses To Confirm Arbitration Award Of Jewish Religious Court

In In re Brisman v. Hebrew Academy of the Five Towns & Rockaway, (Sup. Ct. Kings Co. NY, Dec. 18, 2008), a New York state trial court refused to confirm an arbitration award issued by a Bet Din (Jewish religious court) in a dispute between a religious school and a teacher who was terminated after his contract expired. The Bet din had awarded back pay and ordered reinstatement of the teacher with tenure at a set salary. the court held:

The Beth Din's determination ... essentially forces Respondent, an "at will" private employer, to employ Petitioner, who ... has a clear difference in ... religious philosophy from Respondent's administration, for an indefinite tenure. Furthermore, the salary set forth by the Beth Din of $100,000 is arbitrary, unfounded and irrational, as the base salary, as set forth by the expired employment contract, was $54,000....

Secondly, by retaining indefinite jurisdiction, the Beth Din exceeded a specifically enumerated limitation on its authority, as set forth by the parties in their own agreement to arbitrate.

Lastly, the award is violative of public policy. The Beth Din's ruling sets a precedent that will impact and limit the ability of private schools to make and enforce routine employment decisions....

[Thanks to Joel Katz for the lead and to Failed Messiah for posting the opinion.]

Oregon Appeals Board Says Animist Church Must Be Permitted Under RLUIPA

In Young v. Jackson County, (OR Land Use Bd. App., Dec. 23, 2008), the Oregon Land Use Board of Appeals held that the "equal terms" provision of RLUIPA was violated when a county denied an application to operate a church in an existing dwelling on land zoned for farm use, but within three miles of an urban growth boundary. Scott and Sulara Young, who practice a form of Native American Animism known as Huichol Shamanism, already use the 10-bedroom house as a religious retreat center. The Board found that the county permits a number of other uses that have a similar impact on agricultural land, such as parks, playgrounds, community centers golf courses and living history museums. Today's Medford (OR) Mail Tribune reports on the decision.

NJ Finds Discrimination In Faith Group's Refusal To Rent Premises For Civil Union

The New Jersey Division of Civil Rights announced yesterday that its investigation had found probable cause to credit allegations that the Methodist-affiliated Ocean Grove Camp Meeting Association had discriminated against a lesbian couple when it refused to rent its Boardwalk Pavilion for the couple to use for their civil union ceremony. In Bernstein v. Ocean Grove Camp Meeting Association, (NJ Civ. Rts. Div., Dec. 29, 2008), the Division first found that the Association's Boardwalk Pavilion-- widely used by the public-- is a place of public accommodation under New Jersey's Law Against Discrimination. The Division rejected the Association's free exercise of religion and free speech defenses to the discrimination charges. It found that in renting the Pavilion, the Association did not distinguish between religious or secular weddings, or between Christian weddings or those of other faiths, and that the Pavilion was not being used by the Association to convey a particular message. The case now moves from this preliminary determination to a hearing by an administrative law judge.

In a second case, Moore v. Ocean Grove Camp Meeting Association, (NJ Civ. Rts. Div., Dec. 29, 2008), the Division rejected a complaint from another lesbian couple who applied to sue the Boardwalk Pavilion for a civil union ceremony after the Association decided to stop renting it out to anyone for weddings or similar events. The AP reports on the decisions. It points out that an appeal in a suit alleging that the state Division of Civil Rights lacks jurisdiction to decide the Bernstein case is pending before the 3rd Circuit. A federal district court refused to enjoin the state from investigating the complaint. (See prior posting.)

Amended Complaint Expands Reigious Promotion Charges Against Army

Yesterday the Military Religious Freedom Foundation filed an amended complaint (full text) in Chalker v. Gates, (D KA, filed 12.29/2008), seeking to protect enlisted military personnel from being required to attend military functions and formations that include Christian prayer. Plaintiff, an atheist stationed at Ft. Riley, Kansas, says that his treatment is evidence of a broad pattern and practice of the Defense Department and the U.S. Army unconstitutionally promoting religious belief. The 25-page amended complaint lists more than 2o examples of impermissible promotion of religion by the military. These range from military flyovers at religious events to the content of the Army's suicide prevention program. The suit was originally filed last September. (See prior posting.) Yesterday's Kansas City Star reports that the expanded complaint was filed after Chalker unsuccessfully attempted in recent months to pursue his complaints administratively. The amended complaint alleges that Chalker has exhausted the intra-Army administrative process in seeking relief.

Newdow Lawsuit Challenges Inaugural Oath and Invocation [UPDATED]

A press release from the American Humanist Association reports that a lawsuit was filed on Dec. 30 in Washington, D.C. federal district court challenging two elements of the upcoming inauguration ceremony planned for Barack Obama. The complaint (full text and links to Appendices) in Newdow v. Roberts, (D DC, filed 12/29/2008) asks the court to enjoin the Chief Justice-- who will administer the oath of office-- from adding "so help me God" to the constitutionally prescribed presidential oath (Art. II, Sec. 1). It also asks the court to declare unconstitutional the use of clergy to deliver an invocation and benediction. Plaintiffs allege that both of these practices violate the Establishment Clause, Free Exercise Clause and the Religious Freedom Restoration Act. In addition to the Chief Justice, defendants include the Presidential Inaugural Committee and its leaders, and the clergy scheduled to take part in the ceremony. Some 40 individuals and organizations-- atheist and secular humanist in belief-- are named as plaintiffs. On the crucial issue of standing, the complaint alleges:

Under the Establishment Clause, Plaintiffs have a right to view their government in action without being forced to confront official endorsements of religious dogma with which they disagree. This is especially the case when that dogma stigmatizes them in the process.

Being forced to confront such religious dogma as the price to pay for observing a governmental ceremony is a substantial burden upon Plaintiffs’ rights of Free Exercise as well.

The Examiner carries a posting commenting on the filing. Volokh Conspiracy has extensive commentary on the lawsuit.

2nd Circuit Says Asylum Applicant Is Not Genuine Falun Gong Adherent

In Zheng v. Mukasey, (2d Cir., Dec. 29, 2008), the U.S. 2nd Circuit Court of Appeals upheld the denial of asylum to an immigrant from China who claimed that he would face religious persecution if he was returned home. The court held that there was substantial evidence to support the Immigration Judge's finding that Yangli Zheng was not a genuine Falun Gong adherent and that he would not practice Falun Gong if returned to China.

Huge Mass In Spain Opposes Government's Social Reforms

Reflecting its opposition to social reforms enacted and proposed by Spain's Socialist government, the Catholic Church yesterday held an open-air Mass in Madrid attended by hundreds of thousands. AFP reports that Pope Benedict XVI addressed the crowd from the Vatican on large screens set up in Plaza Colon. The Pope urged families not to allow distortion of family life, and the Archbishop of Madrid attacked the "cruelty"of abortion. Since 2004, the Spanish government has legalized same-sex marriage and created quicker divorce procedures. It is proposing a new law to offer greater protections to women who wish to obtain abortions and to their doctors.

Orissa Will Investigate Charges of False Scheduled Caste Certificates

In the Kandhamal district of the Indian state of Orissa, the government has agreed to investigate charges that at least two politicians have used false Scheduled Caste certificates to obtain governmental positions. (See prior related posting.) In India, members of Scheduled Castes (formerly known as "untouchables") obtain various preferences. According to Zee News yesterday, opponents charge that Radhakant Nayak , now a member of India's upper house of Parliament, entered the civil service in the 1960's by using a false certificate. Nayak is head of a local chapter of the Christian charity, World Vision. Critics also charge that Sugrib Singh, a member of the lower house of India's Parliament, became a Parliament member by means of a false certificate. Under current Indian law, a Hindu member of a Scheduled Caste loses that status if he or she converts to Christianity. (See prior posting.) Members of Scheduled Tribes, however, do not lose their status through religious conversion.

Meanwhile, an article today in Religious Intelligence reviews the history of anti-Christian violence in Orissia over the last ten years.

UPDATE: The Hindu reports on Tuesday that the government of Orissa is attempting to deal with broader objections regarding false caste certificates by proposing to eliminate the term "kui" from the list of tribals. Many speak the kui language who were not tribals. Tribals can convert religion and keep tribal status. The proposal will be considered by the state level Tribal Advisory Committee on Jan. 19.

Connecticut Minister Disputes Interpretation of Tax Exemption Statute

Is church property subject to taxation if the church stops using it for religious services? The Colchester, Connecticut tax assessor says the answer to that is "yes" under Connecticut law. However, Rev. Susan Nikirk disagrees. Yesterday's Norwich (CT) Bulletin reports that Rev. Nikirk reluctantly paid over $3500 in taxes, but threatened to sue after the property tax exemption for the former Vine Training and Worship Center was revoked. The property has now been sold. The issue turns on the interpretation of Connecticut General Statutes, Chap. 203, Secs. 12-81 and 12-88.

Maryland Court Says Denial of New Sign Does Not Subtantially Burden Church

In Trinity Assembly of God of Baltimore City, Inc. v. People's Counsel for Baltimore County, (MD Ct. App., Dec. 24, 2008), the Court of Appeals of Maryland in a 48-page opinion rejected a church's RLUIPA challenge to a decision of the Baltimore County Zoning Board of Appeals. The county refused to grant a variance to a Towson (MD) church that wanted to put up a 250 square foot sign facing the Beltway. Rejecting Trinity church's appeal, the court held that neither the Sign Law nor the zoning denial imposed a substantial burden on the church's religious exercise.

Recent Prisoner Free Exercise Cases

In Shaw v. Norman, 2008 U.S. Dist. LEXIS 102744 (ED TX, Dec. 19, 2008), a Texas federal magistrate judge refused to grant summary judgment for defendants and permitted an inmate to move forward with his 1st Amendment an RLUPA challenges to confiscation of his property by prison authorities. Plaintiff's prayer rug was taken because he did not have property papers for it; his Koran was taken because he had altered it with tape; and his prayer beads were taken because he was wearing them around his neck.

In Moore v. McCracken County, 2008 U.S. Dist. LEXIS 102786 (WD KY, Dec. 19, 2008), a Kentucky federal district court dismissed a free exercise claim by a Muslim prisoner who complained about the delay he suffered in being given access to a diet consistent with his religious beliefs. The court held that plaintiff had not shown that he was inadequately nourished during the two months before he was placed on the list of prisoners to receive a no-pork diet.

In Rhodes v. Alameida, 2008 U.S. Dist. LEXIS 103335 (ED CA, Dec. 12, 2008) involved objections by a Native American prisoner that certain of his religious artifacts were destroyed by prison officials. A California federal magistrate judge refused to grant summary judgment to defendants, finding that they had not demonstrated a legitimate governmental interest in the prison policy that calls for destruction of disallowed property of inmates who have not paid to have the property mailed to a family member or friend. (See prior related posting.)

Top 10 Church-State/ Free Exercise Stories of 2008

Again this year, I am publishing my nominations for the 2008 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. There were many potential nominees, so I invite your comments on these choices. I have focused not just on the attention which particular stories received, but also on the long-range implications of the developments selected. Religion Clause has posted numerous items on these developments over the past year. Links are to selections of the coverage:

1. Barack Obama reaches out to faith groups in the campaign and renounces his own pastor's statements.

2. The Mormon Church (Church of Jesus Christ of Latter Day Saints) gains widespread national attention after Mitt Romney seeks Republican nomination and LDS members are active in opposing California's Proposition 8.

3. Christians see increasing clash between religious freedom and push for both same-sex marriage and sexual orientation non-discrimination.

4. Regulations focus on clash between patient rights and conscience rights for pharmacists and health care workers.

5. Texas child protective services agency conducts high profile raid on compound of polygamous FLDS Church and takes children into temporary state custody.

6. IRS rules on church involvement in political campaigns increasingly invoked and challenged.

7. Church-state and free speech challenges to religious-themed license plates reach courts.

8. Turkey's ruling party challenged in Constitutional Court over secularism disputes.

9. 9th Circuit interprets RFRA in Navajo Nation v. U.S. Forest Service.

10. Massive Bernard Madoff fraud decimates numerous Jewish non-profits and philanthropists.

You may find it interesting to compare my picks with those of the Religious Newswriters Association and of Time Magazine.

New Regulations Ban Religious Proselytizing of Military Recruits

Today's Virginian-Pilot reports that the Military Entrance Processing Command has issued new regulations to prevent religious proselytizing of recruits at its Military Entrance Processing Stations. The new regulations were issued after complaints that some ministries were targeting the centers-- where recruits get their physicals and are sworn in-- in an effort to identify themselves with the military. For example, one group handed out khaki covered copies of the New Testament. The new regulations still permit religious literature and publications produced by outside parties to be made available at processing stations, but the centers cannot show favoritism to any particular faith or group. No publications that create the impression of government endorsement or sponsorship are permitted. Also no proselytizing, preaching or spiritual counseling by outside parties will be permitted.

Islamic Revival In Bosnia Threatens Secularism

Today's New York Times says that Bosnia's secularism is being tested by an Islamic revival in the country. Some parents have complained after Muslim education was recently introduced in state-financed kindergartens. In predominately Muslim Sarajevo, many streets have been renamed for Muslim heroes. New madrasas have been built in recent years and political parties identifying with Muslim interests are popular. Still, a recent survey concluded that 60% of Bosnian Muslims still favor keeping religion a private matter.

Times Analyzes Madoff's Victimization of Jewish Philantropists and Charities

Today's New York Times carries an interesting analysis of the Jewish charities and philanthropists that were victims of the Bernard Madoff fraudulent Ponzi scheme. (See prior posting.) Titled Trust and Exploitation in a Close-Knit World, the article points out that the Jewish victims were all part of the Modern Orthodox community. It remarked: "[T]he conspicuous fact remains that no institutions explicitly, or even implicitly, affiliated with Reform, Conservative or Reconstructionist Judaism had investments with Mr. Madoff."

The article suggests that Madoff, who himself was not Orthodox, earned entree through J. Ezra Merkin of Ascot Partners. The synagogues, schools, institutions and individuals that were defrauded, it says, "are bound by religious praxis, social connection, philanthropic causes. Yet what may be the community’s greatest virtue — its thick mesh of personal relations, its abundance of social capital — appears to have been the very trait that Mr. Madoff exploited."

Ohio Mayor Reluctantly Changes Christmas Sign

Christmas has passed, but controversies of Christmas displays have not. Today's Elyria (OH) Chronicle-Telegram reports that Avon Lake, Ohio's mayor has changed the message he put up Dec. 15 on the display board outside city hall. It read: "Remember Christ is in Christmas." After two members of City Council and the city law director agreed with Americans United that the sign was inappropriate, Mayor Karl Zuber reluctantly took down everything except the word "Remember." Zuber said: "I think the government was founded on Christian principles, and I'm a firm believer in those principles.... I don’t think the message was establishing a church for our nation." Zuber says that next week, the sign will probably be changed to read: "Happy New Year."

Bahrain Wil Donate Land For New Catholic Church

Responding to a request from Pope Benedict XVI, the government of Bahrain will donate land for the building of a new Catholic Church in the country. Gulf News today reports that the existing Sacred Heart Catholic Church was built in 1939-- the first in an Arabian Gulf country.

Navy Says Messianic Jewish Chaplains Must Wear Cross As Lapel Insignia

Jews in Green reported last week that Vice Admiral M. E. Ferguson, head of the Navy's Uniform Board, has followed the lead of the Army and Air Force and ruled that Messianic Jewish chaplains must wear the Christian Cross, rather than the Jewish Ten Commandment Tablets, as lapel insignia. According to the Messianic Daily News, the Nov. 26 ruling by the Navy resulted in Messianic Jewish chaplain Michael Hiles refusing to enroll in the Navy Chaplain School. The ruling is characterized rather differently by competing sides. Jews in Green applauds it as a way to prevent Messianic chaplains from misidentifying themselves to unsuspecting Jewish service members. The Messianic Daily News calls the decision one that "essentially bars Messianic Jews from serving as chaplains ... because it would require them to wear an insignia inconsistent with their faith and belief system." [Thanks to God and Country blog for the lead.]

Tony Alamo Says Civil Suit Requires Court To Decide Religious Issues

Today's Arkansas Democrat Gazette reports that on Nov. 25, two former members of the Tony Alamo Christian Ministries filed a federal court lawsuit against Alamo charging that as teenagers they were beaten and subjected to abuse by the church. On Tuesday Alamo's lawyers filed a Motion to Dismiss or Strike References to Religion (full text), objecting to various of the charges that they say will involve the court in deciding theological matters. They claim that some of the alleged beatings were in fact spankings of unruly children that are authorized by the Bible and were consented to by the children's parents. They say that withholding of food is justified by references to fasting throughout the Bible. Alamo's marrying of young girls, that allegedly caused distress to plaintiffs, attorneys argue also follows examples in the Bible. In September, Alamo was arrested on federal charges. (See prior posting.)

UPDATE: AP on Tuesday reported plaintiffs' response, arguing against Alamo's free exercise defenses.

Defamation Suit Against Greek Orthodox Church Dismissed

In Martinos v Greek Orthodox Archdioceses of America, (NY S.Ct., Dec. 16, 2008), a New York trial court dismissed a defamation action brought by the former parish council president of a Greek Orthodox congregation against the archdiocese, the church, its priest and a parish council past president. At issue was a letter to church officials and a flyer distributed to the congregation regarding charges of financial irregularities in use of parish funds that had been leveled against George Martinos. The court found that the information disseminated-- that allegations had been made, that Martinos had resigned as parish council president and that the bishop had banned him from parish positions-- were true. The court also held that the sending of the letter to its initial recipients was covered by a qualified privilege and that plaintiff failed to allege that these defendants were involved in its broader distribution or in distribution of the flyer. Finally, the court added that it "is troublesome" that the church never gave Martinos (wo is now deceased) the opportunity to try to clear his name. The court added that while it is not in a position to order it, "it would seem just for the church to permit [Martinos'] estate such an opportunity."

Fired Employees Sue Over Scientology-Based Business Model

A religious discrimination lawsuit filed in California state court last month is beginning to attract attention around the blogosphere, such as this Dec. 20 posting by Scott Pilutik. The complaint (full text) in Godelman v. Diskeeper Corp., (L.A. Super. Ct., filed Nov. 5, 2008) alleges religious discrimination in violation of California's employment discrimination laws. Plaintiffs, who were fired by Diskeeper, claim that the business was operated under the "Hubbard Management System" which is "a thinly-veiled cover for the Scientology religion and its teachings." Employees were required to attend training courses that were essentially courses in Scientology. Plaintiffs seek damages, reinstatement and an injunction prohibiting the company from forcing any employee to study, adopt or apply the the Hubbard system.

In an unusual procedural move, defendants responded on Dec. 10 with a Motion to Strike the portions of plaintiffs' complaint that seek reinstatement and injunctive relief (full text of Motion and Memorandum in Support.) The memorandum argues that plaintiffs' injunction request seeks to shut down a company's entire business model on religious grounds. Defendants urge: "To the extent that the Hubbard Management System is inherently religious in nature, Mr. Jensen's choice to use it to conduct his business is protected by the First Amendment and the California Constitution." [Thanks to Dispatches from the Culture Wars for the lead.]

Disputed Reports Say Gaza Has Adopted Sharia Criminal Law

Yesterday's Arutz Sheva quotes reports apparently originating with the London-based Saudi-owned newspaper Al-Hayat saying that the Palestinian Authority in Gaza has enacted a new law adopting the traditional Sharia criminal code. The reports say the new law adopts penalties such as lashes, amputation of thieves' hands, crucifixion, approval of blood revenge, and execution. It provides that only the victim of a crime can allow something other than penalties prescribed by the Qur'an. Crimes such as the consuming or producing of alcoholic beverages are punishable by lashes and have no specific victim who can pardon the offender. The new law provides the death penalty for various actions that aid enemies or injure Palestinian interests on behalf of enemies. Palestinian Authority legislators in Gaza, however, deny reports that they have adopted Islamic law, saying there has been no official statement confirming the report.

Christmas Is Legal Holiday For First Time This Year In Iraq

For Iraqis, Christmas was different this year. According to the AP yesterday, for the first time the Iraqi government has declared Christmas an official holiday. The Orlando Christianity Examiner on Tuesday reported that in a small Baghdad park, Iraq's Interior Ministry hosted the country's first-ever legal public Christmas celebration. Most of those attending were not Christian, but Interior Ministry spokesman Major-General Abdul Karim Khalaf said warmly: "All Iraqis are Christian today!"

President Marks Christmas In Statement, Radio Address and Phone Calls To Military

On Tuesday, the White House released President Bush's formal Christmas Message for 2008 (full text). He said in part:

During this season, we remember Jesus' birth from the Virgin Mary, His justice and mercy that changed the world, and His ultimate sacrifice for all people. Though Jesus was born humbly in a manger, He was destined to be the Savior of the world. The light He brought into the world continues to break through darkness and change people's lives two thousand years later.

This holiday season, as you rejoice in the good news of Jesus' love, forgiveness, acceptance, and peace, I encourage you to show grace to those less fortunate, just as God showed it to us. By serving those in need and through other acts of love and compassion, we can honor God's goodness and affirm the immeasurable value God places on the sanctity of life. We remember the members of our Armed Forces serving to protect our country and secure God's gift of freedom for others around the globe. All Americans are indebted to these men and women and their families for their sacrifice, devotion to duty, and patriotism.

The President's radio address on Tuesday (full text) focused on the armed forces at Christmas time. He recalled the "miracle [that] took place on Christmas night, 1776" when George Washington led troops across the Delaware River in a successful attack on the British.

On the morning of Christmas eve, the President telephoned nine "exemplary members of the Armed Forces who are stationed in remote locations worldwide to wish them a Merry Christmas and Happy New Year and to thank them for their service to our Nation." (White House release.)

President-elect Barack Obama also released his Holiday Radio Address this week (full text and video), saying: "This season of giving should also be a time to renew a sense of common purpose and shared citizenship."

Court Issues Finely-Tuned Ruling In Ordering Surgery For Amish Boy

In St. Lawrence County, New York, a family court judge has issued a finely-tuned ruling in the case of a 20-month old Amish boy, Eli Hershberger, who likely will die if he does not receive surgery to repair a hole in his heart. His parents' religious beliefs preclude them from consenting to the surgery. According to yesterday's Watertown Daily Times, Family Court Judge Barbara R. Potter ruled that while the boy's parents give him affection and provide for his basic needs, they have neglected him medically. That neglect finding permitted the court to order the surgery without the boy's parents needing to sign a consent form. Parents Gideon and Barbara Hershberger, however, will not lose custody of Eli and no criminal charges will be brought against the parents. The Family Court could subsequently dismiss the case if the parents comply with specified conditions, including taking Eli to all medical checkups and providing doctors with his medical information.

Queen Elizabeth To Give Christmas Message; Channel 4 Has Controversial Alternative

In Britain, Queen Elizabeth II's Christmas message will be broadcast Thursday afternoon (British time). A video of the speech is available from the YouTube Channel of the British Monarchy. The Guardian yesterday previewed her remarks. A history of the Royal Christmas Broadcast, which began in 1932, and transcripts of a number of the earlier addresses, are also available from the Monarchy's website.

Meanwhile, as reported yesterday by the New York Times, by AFP, and by the Times of London, Britain's Channel 4 continues with the tradition it began in 1993 of broadcasting a high-profile alternative Christmas greeting. In past years, it has been delivered by the likes of Jesse Jackson, Brigitte Bardot and cartoon character Marge Simpson. In a highly controversial move, this year Channel 4 is broadcasting a Christmas message from Iranian President Mahmoud Ahmadinejad. The full text of Ahmadinejad's message is already on Channel 4's website. Many in Britain, as well as Israel's ambassador in London, have criticized Channel 4's decision. Channel 4 says it is "offering viewers an insight into an alternative world view." In a departure from past timing, this year's alternative greetings will be broadcast several hours after the Queen's to avoid any implication of equivalence.

Rubashkin Bail Denied Again; Court Says Law of Return Not Important Factor

In United Sates v. Rubashkin, (ND IA, Dec. 22, 2008), an Iowa federal magistrate judge denied a motion for reconsideration of an order for pre-trial detention of defendant Sholom Rubashkin, former CEO of an Iowa kosher meat packing plant that was shut down after a large-scale immigration raid earlier this year. Rubashkin argued that the original denial of bail involved religious discrimination because the magistrate judge indicated as one reason for denial the risk of flight to Israel where the Law of Return would permit Rubashkin to obtain citizenship. (See prior posting.) In denying reconsideration, the magistrate judge said:

Much of Defendant's argument is directed to the Court's reference to Israel's Law of Return. Defendant attaches too much significance to that single reference. At the time of the hearing, Mr. Weiss made it clear that if Defendant attempted to seek refuge in Israel, he would be subject to extradition.... and the Court accepted his representation.

Yesterday's Jerusalem Post reported on the decision. JTA reported yesterday that the Anti-Defamation League has written to U.S. Attorney General Michael Mukasey urging him to ensure that Israel's Law of Return is not used to deny bail to Jewish defendants.

President Sends Kwanzaa Greetings

On Wednesday, the White House released President Bush's 2008 Message for Kwanzaa (full text). He said in part: "As people across our country gather to commemorate this seven-day celebration, may we all be reminded that Kwanzaa is an opportunity to celebrate the many contributions of our African American citizens."

8th Circuit Denies Review of Religious Discrimination Judgment on Procedural Grounds

In EEOC v. Southwestern Bell Telephone, LP, (8th Cir., Dec. 19, 2008), the U.S. 8th Circuit Court of Appeals dismissed on procedural grounds an appeal by AT&T of a Title VII religious discrimination judgment against it obtained by the Equal Employment Opportunity Commission on behalf of two former Jehovah's Witness employees. AT&T refused to allow the two employees to take a vacation day to attend their annual religious convention. The employees were fired when they took the time off anyway. AT&T claimed that the employees did not hold a sincere religious belief requiring attendance at the conference and that they failed to mitigate damages. While AT&T had filed a motion for judgment as a matter of law under FRCP 50(a) before the case went to the jury, it failed to renew the motion through a Rule 50(b) motion after the verdict was rendered. (See prior related posting.)

Times Analyzes Appeal of Islamic Movements To Jordanian Youth

In another of its extended series of articles on the lives of youth in the Muslim world, today's New York Times profiles the increasing attractiveness of Islam to university students in Jordan. It says:

Today, the search for identity in the Middle East no longer involves tension between the secular and religious. Religion has won. The struggle, instead, is over how to define an Islamic society and government.

The Muslim Brotherhood is legal in Jordan, with a political party and a network of social services. The government permits it to operate, but the security services still control election outcomes. Some youth think the Brotherhood is too extreme while others criticize it for working within an un-Islamic political system. The article suggests that authoritarian governments see moderate Islamic movements as more of a threat than extremist ones. However, it argues:

The long-term implications of this are likely to complicate American foreign policy calculations, making it more costly to continue supporting governments that do not let secular or moderate religious political movements take root.

Other articles in the Generation Faithful series remain available online.

AALS Section Publishes Law and Religion Bibliogrpahy

The Association of American Law Schools Section on Law and Religion has issued its December 2008 Newsletter containing a 40-page bibliography of books and articles on law and religion published during the past year. It also contains a listing of blogs dealing with law and religion.

Obama Will Use Same Bible As Lincoln For Swearing-In

The Obama Presidential Inaugural Committee announced yesterday that president-elect Barack Obama will be sworn in on the Bible used by Abraham Lincoln at his 1861 inauguration. The velvet-bound Lincoln Bible was made available by the Library of Congress for the ceremony. Photos and more on the history of the Bible are included as part of the announcement. The oath of office will be administered to Obama by U.S. Supreme Court Chief Justice John G. Roberts, Jr.. The oath of office will be administered to vice-president elect Joseph Biden by U.S. Supreme Court Associate Justice John Paul Stevens. (Full schedule via the Washington Post.)

Texas Issues Report On Raid of FLDS Ranch

On Monday, the Texas Department of Family and Protective Services (DFPS) issued a 21-page report (full text) defending its highly publicized April raid of the polygamous FLDS Church's Yearning For Zion Ranch. It said that

12 girls are confirmed victims of sexual abuse and neglect because they were married at ages ranging from 12 to 15. There were 43 girls removed from the ranch from the ages of 12 to 17 – which means that more than one out of every four pubescent girls on the ranch was in an underage marriage. 262 other children were subjected to neglect because parents failed to remove their child from a situation in which the child would be exposed to sexual abuse committed against another child within their families or households.

Cases involving 424 children have been nonsuited. Lawsuits are pending in the cases of 5 mothers and their 15 children. The state has conservatorship of two girls, one of whom is with her mother. DFPS summarized its role:

In these cases, DFPS’s sole purpose was to protect the children, reunite them with their families when the children’s safety could be reasonably assured, and give those families better tools to protect their children from abuse or neglect in the future.

Yesterday's Dallas Morning News covers the DFPS report. (See prior related posting.)

Planned Anti-Abortion Protest At Inaugural Parade Hits Snags

The Christian Defense Coalition is planning a series of anti-abortion rallies and demonstrations during the Presidential inauguration. The Birmingham Letter Project website sets out the schedule and related information. In a letter (full text) sent to federal authorities last Tuesday, organizers requested a meeting with officials to work out the logistics of a demonstration scheduled during the inaugural parade. A press release from the group yesterday explains that they plan to display photos along the Inaugural Parade route depicting the development of a child from conception until birth. The National Park Service apparently is likely to issue a demonstration permit, but says it is unable to assure organizers that they will have access to the requested sidewalk locations. Four years ago, the group had a permit, but parade watchers had taken over their assigned area. Organizers this time have asked for early screened access so they will not be pre-empted by others. It is not clear whether this request will be granted.

Indiana City Rejects Prayer Box Proposal

Rensselaer, Indiana's City Council yesterday reluctantly voted down a proposal by local ministers to install a "prayer box" in the City Hall reception area. JC Online reports that the mayor and council members personally favored the idea, but were concerned about church-state issues it raised. The box-- like those already in private businesses-- would have allowed individuals to leave anonymous notes with requests for prayers of support or praise. The notes would be collected periodically and taken to local churches where the requested prayers would be offered.

Does Employment Accommodation Include Saying Merry Christmas?

How far does the obligation extend under employment discrimination laws to reasonably accommodate an employee's religious beliefs? A release yesterday by Liberty Counsel publicizing a case in Panama City, Florida raises the issue. Officials at Counts Oakes Resort Properties, a property management company, instructed employees to answer phones this month with the greeting "Happy Holidays." Tonia Thomas objected on the ground that her religious beliefs prevented her from contributing to the secularization of Christmas. She requested an accommodation to permit her to either say "Merry Christmas" or continue answering phones in the same way as they are answered all year. Her employer refused and ultimately fired her for insubordination. Thomas has filed a complaint with the EEOC.

Preliminary Injunction Allows Religious Sign To Remain Near US Highway

In Burritt v. New York State Department of Transportation, (ND NY, Dec. 18, 2008), a New York federal district court issued a preliminary injunction preventing the state of New York from enforcing its regulations relating to highway signs against a businessman who displayed a large religious sign on his property adjacent to US Route 11 in northern New York. Daniel Burritt believes he has a religious duty to communicate the Gospel of Jesus in all aspects of his life, including his business. At issue was a sign displaying a religious message placed on the side of a semi-trailer parked on Burritt's property.

Under the New York regulations, a sign on the premises of a business identifying the business can be displayed without a permit even adjacent to a highway, but a special permit is needed where the sign visible from the highway carries a different message. In enjoining enforcement while litigation on a permanent injunction is pending, the court said in part:

The State has not demonstrated a compelling interest for the Sign Laws' restriction on "off-premises" signs.... Plaintiff's trailer sign is apparently adjudged an "illegal sign" not because of its location on his property or its dimensions, but because of its content. It seems that a sign containing the same physical characteristics as Plaintiff's trailer sign but announcing the name of his business, "Acts II Construction, Inc.: Building Bridges for Jesus," would be allowed under the regulations. The Court cannot see how aesthetics and traffic safety are protected by a sign that displays the name of business, but are jeopardized by a sign of the same size and location that contains a religious message.... [T]he regulations are not narrowly tailored to achieve the ends that the regulations are intended to achieve.

Alliance Defense Fund yesterday issued a release discussing the decision, including a photo of the disputed sign. (See prior related posting.)

UPDATE: In March 2009, ADF announced that "a favorable settlement with the New York Department of Transportation" that permits the sign to remain.

New Study of Religious Affiliation of Members of 111th Congress

Pew Forum on Friday released a study of the religious affiliation of members of the new 111th Congress. Looking at the House and Senate together, 54.7% are Protestant (most from the mainline denominations), 30.1% are Catholic, 8.4% are Jewish, 2.6% are Mormon and 1.3% are Orthodox. The new Congress also includes 2 Buddhists and 2 Muslims. While 16.1% of American adults say they are unaffiliated, no one in Congress specifically claimed a lack of religious affiliation, though 5 members did not specify a religious affiliation. Included on the Pew Forum's website is a list of each member and his or her religious affiliation, a graphic summarizing the findings, and extensive additional data on affiliations in each house of Congress and of Congressional leaders. Reacting to the survey yesterday, Americans United says that denominational affiliation does not tell much about members' positions on particular issues.

Georgia's AG Supports Permitting Religious Garb In Courtrooms

Georgia's Attorney General Thurbert E. Baker says he supports changing court rules to permit the wearing of religious garments, including the Islamic hijab, in courtrooms. A press release yesterday by CAIR says that Baker wrote in response to CAIR's request for sanctions against a Douglasville (GA) judge who has barred from his courtroom Muslim women wearing religious headscarves. (See prior posting.) Baker wrote that policies "must be designed in such a way so as not to unnecessarily or inappropriately infringe on individuals' rights to observe their religious practices, including the wearing of religious garments...[I]t is difficult to imagine a security concern that could not be addressed in a way that would also accommodate an individual's religious practices related to dress. Religious freedom is a cornerstone of this nation's constitution and should be vigorously protected." Baker also sent a copy of his letter to the Georgia Judicial Qualifications Commission.

UPDATE: AP reported on Wednesday that Douglasville police officers, as well as city employees who work with the court, will be given sensitivity training, focusing on court restrictions and on special accommodations (such as hearings outside the court room) that are available. Also courtroom decorum rules will be posted around the building.

Malaysian Official Wary On Moves Toward Inter-Religious Understanding

In Malaysia today, according to a report by Bernama, Dr. Ahmad Zahid Hamidi, Minister in the Prime Minister's Department, spoke to reporters after opening the 4th Islamic Religious Enforcement Officers and Syariah Prosecutors' Conference and launching the Code of Ethics for Religious Enforcement Officers. He said that, at the urging of the Cabinet, he has asked various Islamic officials to meet with the Unity, Culture, Arts and Heritage Ministry to create new guidelines for better religious understanding. However, he believes that involvement of politicians in religious dialogue creates more problems. He urged that any inter-religious discussions or dialogues be held in private, saying: "The more such discussions are held, the further apart we will be. Therefore, our contention is that there should be less such discussions but more racial integration activities, such as holding functions together to honour religious leaders which can improve relations between people of different religions." Zahid also told reporters that so far 1,242 religious enforcement officer positions have been created-- one for every 23,000 Malaysians.

Vietnam Recognizes Presbyterians and Seventh Day Adventists

Earth Times reports today that the government of Vietnam has now officially recognized the Vietnamese branches of the Seventh-Day Adventist Church and the Presbyterian Church. The recognition took place in a ceremony in Ho Chi Minh City yesterday.

Poland's President Visits Synagogue Service For First Time In History

Lech Kaczynski, president of Poland, yesterday lit a candle in a ceremony marking the beginning of Hanukkah in a Warsaw synagogue. The Hanukkah service also included a prayer for the Polish nation written for the occasion. After the service, the president joined the congregation in sampling potato latkes-- a food that is a symbol of the holiday. Haaretz reports that this is the first time a Polish president has ever attended a religious service at a synagogue in Poland. The only other presidential visit came in the 1920's when Ignacy Moscicki visited a synagogue, but not for a religious service. Even as mayor of Warsaw, Kaczynski befriended the Jewish community, and for the past two years he has hosted a Hanukkah candle-lighting ceremony at the presidential palace. Kaczynski's example has created a spirit of tolerance that has spread to other officials in a country whose Jewish population was largely destroyed in the Holocaust. Meanwhile, current Warsaw Mayor Hanna Gronkiewicz-Waltz yesterday joined a candle-lighting Hanukkah ceremony in front of the Palace of Culture.

Recent Articles of Interest and Two Unusual New Books

From SSRN:

• Tanya Dumas, Sean Gates & Deborah Schwarzer, Evidence for Homeschooling: Constitutional Analysis in Light of Social Science Research, (Widener Law Review, Forthcoming).


• Daniel R. Suhr, On the Freedom of a Congregation: Legal Considerations When Lutherans Look to Change Denominational Affiliation, (Texas Review of Law & Politics, Vol. 13, 2009).


• Raphael Cohen-Almagor, Reply to Rejoinder: Teaching in Class Versus Free Expression, (American Journal of Education, Vol. 115, pp. 179-183, November 2008).

From SmartCILP:

• Yehiel S. Kaplan, The Power of Interpretation: Religious Scholars Elevate the Status of Female Guardians in Jewish Law, 14 Cardozo Journal of Law & Gender 519-547 (2008).


• The Fourteenth Annual International Law and Religion Symposium [full text]. Articles by Noryamin Aini, Robert C. Blitt, Pieter Coertzen, Liaquat Ali Khan, Javier Garcia Oliva, M. Elena Pimstein and Keiko Yamagishi. 2008 BYU Law Review 669-941.

Two Unusual Books:

• Rev. Dean M. Kelley, The Law of Church and State in America (full text of 5 volumes published online, 2008), reviewed by First Amendment Center.


• Patrick & Mary Mangan, The Cross and the Water Tower: A Christmas Story, (Rotondo Press, 2008), (children's fiction based on a church-state issue), reviewed by the Arlington Heights (IL) Daily Herald.

Former Armenian Churches In Georgia are Focus of Contention

An article in the Armenian Reporter and an interview with Armenian Bishop Vazgen Mirzakhanian focus on six church buildings in the nation of Georgia-- five of them in the capital of Tiblisi-- which are claimed by the Armenian Orthodox Church. The disputed churches were taken from the Georgian-Armenian Diocese during the Soviet era and the buildings were put to nonreligious uses. In a recent visit to Tiblisi by the prime minister of Armenia, one of the churches (Holy Norashen) was briefly opened for prayers and lighting of candles at a ceremony attended by the prime minister. Meanwhile, pending resolution of ownership, the former church buildings are not being cared for by the Georgian government and are falling into disrepair. The issue of the churches is now being discussed by political leaders of both Georgia and Armenia.

Hanukkah Begins Tonight With Mixed Church-State Messages In DC

The Jewish festival of Hanukkah begins at sundown this evening. In Washington, DC, events project a mixed church-state message. On the Ellipse near the White House, the "National Chanukah Menorah" will be lit in a ceremony featuring, among others, the U.S. Navy Band. (Chanukah on the Ellipse website.) The menorah is a project of American Friends of Lubavich. Earlier this week, the White House hosted a Hanukkah reception. (See prior posting.) As reported last month by the New York Sun, this year's invitations to the White House Hanukkah reception raised some eyebrows. The front of the invitation pictured a Clydesdale horse hauling a Christmas tree up to the White House whose windows all displayed Christmas wreaths. Brooklyn Jewish community leader Isaac Abraham joked that this must be depicting the Christmas tree being taken out of the White House with the menorah being brought in the back door. A number of commentators, such a this item from the Houston Chronicle, suggest that there is irony in the increasing mixing of Hanukkah with Christmas since the holiday celebrates the victory of those who opposed the assimilationist force of Hellenism in the second century BCE.

British Marriage Registrar Loses Discrimination Appeal

In London Borough of Islington v. Ladele, (EAT, published Dec. 19, 2008), Britain's Employment Appeal Tribunal reversed a lower Tribunal's decision (see prior posting) and held that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships. In a 47-page decision, the appellate tribunal said in part:

The claimant’s complaint on this score is not that she was treated differently from others; rather it was that she was not treated differently when she ought to have been.... That is a complaint about a failure to accommodate her difference, rather than a complaint that she is being discriminated against because of that difference....

[P]art of the commitment to the promotion of equal opportunities and fighting discrimination is that employees should not be permitted to refuse to provide services to the community for discriminatory reasons.... [R]equiring the staff to act in a non-discriminatory manner was entirely rationally connected with the legitimate objective....

The council were entitled to take the view that they were not willing to connive in that practice by relieving Ms Ladele of these duties, notwithstanding that her refusal was the result of her strong and genuinely held Christian beliefs. The council were entitled to take the view that this would be inconsistent with their strong commitment to the principles of nondiscrimination and would send the wrong message to staff and service users....

The claimant's beliefs were strong and genuine and not all of management treated them with the sensitivity which they might have done. However, we are satisfied that the Tribunal erred in finding that any of the grounds of discrimination was made out.

BBC News reported on the decision on Friday. The Christian Institute issued a release stating that claimant Lillian Ladele plans to appeal to the Court of Appeal.

Inidian Court Refuses To Permit Burial of Terrorists By Jailed Muslim Qazi

In India, the Maharashtra Control of Organised Crime Act Court has rejected an application by a Muslim Qadi (religious judge) who wants to bury the nine Pakistani terrorists from the recent Mumbai massacre in a cemetery plot he owns. Today's Times of India reports that the application was filed by Saquib Nachan, who is in jail facing charges of conspiracy from a 2003 train bombing. Saquib filed the application after Muslim cemeteries in Mumbai refused burial. Those cemeteries say that the terrorists could not be true followers of Islam. (See prior posting.)

Recently Available Prisoner Free Exercise Cases

In Rivers v. McConnell, (3d Cir., Dec. 17, 2008), the U.S. 3rd Circuit Court of Appeals dismissed a frivolous an appeal by a prisoner who claimed, among other things, free exercise violations stemming from action taken against him after he made death threats against county officials in a pleading in a child custody case.

In Roddy v. West Virginia, 2008 U.S. Dist. LEXIS 100595, (ND WV, Dec. 11, 2008), a West Virginia federal district judge adopted a magistrate's recommendation that a prisoner's claim be dismissed for failure to exhaust administrative remedies. Plaintiff claimed that certain Native American religious items were seized from him upon entry to prison. The case was on remand from the 4th Circuit. (See prior posting.)

In Rust v. Nebraska Department of Correctional Services Religion Study Commission, 2008 U.S. Dist. LEXIS 100823 (D NE, Dec. 1, 2008), a Nebraska federal district court allowed two prisoners to proceed pro se (but not as class representatives) in their claims that prison officials refused to provide them separate time and space for Theodish worship and failed to provide certain religious items for them.

In Gillet v. Anderson, 2008 U.S. Dist LEXIS 59557 (WD LA, Aug. 3, 2008), a Louisiana federal district court accepted a magistrate judge's recommendation (2008 U.S. Dist LEXIS 77273, July 11, 2008) to dismiss a prisoner's suit for failure to exhaust administrative remedies. Plaintiff was seeking access to Hermetic Gnostic books, organizations and services. The complaint was dismissed with prejudice to its refiling in forma pauperis.

In India, Tribals Protest Ban On Religious Hunting Ritual

Today's Calcutta Telegraph, following up on an article published last month, reports on the problems that followers of the tribal Sarna religion in India are having in carrying out one of their key rituals-- the Sendra. In the Indian state of Jharkhand, the Jharkhand Raksha Sangh is trying to revive the Sendra-- a ritual that involves fasting and then hunting animals. However the Jharkhand Forest Department is banning followers from hunting in the Dalma region, which includes a large wildife sanctuary. Apparently the ban relies on Section 144 of the Indian Code of Criminal Procedure (orders to prohibit apprehended danger). Friday, supporters held a protest in front of the East Singhbhum deputy commissioner's office. Jharkhand Raksha Sangh leaders have submitted a memorandum to the President of India claiming that the restriction violates their rights to freedom of conscience and religion protected by Art. 25(1) of the Indian Constitution. They say they will file a lawsuit in India's Supreme Court if the district administration does not permit them to practice their traditional rites.

Last Trial Court Decision Issued In Virginia Episcopal Church Litigation

In In Re: Multi-Circuit Episcopal Church Property Litigation, (VA Cir. Ct., Dec. 19, 2008), a Virginia state trial judge issued a letter opinion deciding the remaining eight issues outstanding in the elaborate litigation involving eleven break away Episcopal (now Anglican) congregations which are seeking to retain control of their church buildings and property. The churches filed petitions under Virginia's "Division Statute" seeking adjudication of their ownership of various properties. The decisions handed down in this latest opinion, with one exception, reaffirm prior holdings that the properties belong to the congregations, not to the Episcopal Church USA and the Diocese. However the court did hold that ownership of a Falls Church endowment fund that was in dispute was not covered by the the congregation's petition under the Division Statute, and adjudication of its ownership would be decided in a pending declaratory judgment action.

Episcopal News Service, the Christian Post, and AP report on the decision, and indicate that an appeal is likely. (See prior related posting.) Links to all the extensive pleadings and opinions in the litigation are available from the website of the Diocese of Virginia.

6th Circuit OK's Exclusion of Religious Work From Military Post-Retirement Credit

In Bowman v. United States, (6th Cir., Dec. 18, 2008), the U.S. 6th Circuit Court of Appeals rejected a claim by a retired Air Force sergeant that he was wrongly denied participation in a program that credited extra years toward military retirement benefits for post-separation public and community service. Linden Bowman sought credit in the program for service as a lay intern and a youth minister in a local church. Defense Department regulations allow credit for work with non-profit religious organization only if the work is unrelated to religious instruction, worship services or proselytizing. The court held that this provision is consistent with the Congressional statute authorizing the community service program. The court also held that the limitations did not infringe Bowman's free exercise rights and did not amount to religious discrimination. Applying a rational basis analysis to Bowman's equal protection challenge, the court held that Congress' limiting of the program to public service involving critical community needs passes the rational basis test.

Americans United issued a release applauding the decision which affirmed the trial court. (See prior posting).

Court Adjudicates Competing Claims For Control Of Baptist Church

In Premiere Eglise Baptiste Haitienne de Manhattan (First Haitian Baptist Church of Manhattan) v. Joseph, (NY App. Div., Dec. 18, 2008), a New York state appellate court rejected a claim by George Joseph that he had authority over a congregation's temporal affairs by reason of a power of attorney given to him by his father, a former pastor of the church. Under a stipulation growing out of prior litigation, Joseph's father (now deceased) was made merely a "counseling pastor" with only advisory powers. Thus he lacked the authority to transfer church control to his son. The court also upheld the trial court's injunction prohibiting Joseph, whose membership in the church had been terminated, from disturbing worship services. The court held that as a Baptist church, the congregation has control over spiritual matters, including termination of membership for violation of church discipline. [Thanks to J.J. Landa for the lead.]

Amish Landowner Loses In Prosecution for Refusing To Install Septic System

In State of Ohio v. Bontrager, (OH Munic. Ct., June 24, 2008), decided several months ago by the Trumbull County, Ohio Municipal Court, but just made available online, an Amish man lost his battle with county Board of Health officials. Adam Bontrager refused to install a required septic system on his property because it would require the use of electricity which was prohibited by his religious beliefs. In defending criminal charges brought against him, Bontrager argued that the free exercise provisions of Ohio's Constitution (Art. I, Sec. 7) protected him. The court held that while Ohio applies strict scrutiny even to neutral laws of general application, here the state had a compelling interest in prohibiting the discharge of untreated sewage. Bontrager was convicted and fined $50.

City Settles RLUIPA Suit-- Church and City Both Get Money From Insurer

After months of negotiations (see prior posting), under pressure from the Illinois Counties Risk Management Trust (ICRMT), its insurer, Carlinville, Illinois City Council has finally approved an agreement settling a lawsuit brought against it by the Carlinville Southern Baptist Church. The Southern Baptist group wants to use a former Wal-Mart building, zoned for commercial use, as a church, and sued under RLUIPA as well as the 1st and 14th Amendments when it was refused permission to do so. According to Friday's Alton (IL) Telegraph, last Monday, City Council implemented the settlement by adopting an ordinance granting a special use permit to the church. The church will receive a check from ICRMT for $125,000. Interestingly, the city itself will receive from ICRMT a check for $50,000 to compensate it for its loss of economic development opportunities. The $50,000 might be used to explore forming a tax increment financing district in Carlinville.

Idaho University Sued Over Denial of Funding To Student Religious Groups

In Idaho, six students have filed suit in federal district court against Boise State University challenging University rules that preclude student religious organizations from receiving funding from student activity fees. The University contends that the exclusion is required by the provision in Idaho's Constitution (Art. IX, Sec. 5) barring state monies from going to religious institutions. Plaintiffs, represented by the Center for Law and Religious Freedom, say that the University policy amounts to viewpoint discrimination in violation of the free expression provisions of the U.S. Constitution. The complaint in Cordova v. Laliberte, (D ID, Dec. 17, 2008), and plaintiff's brief in support of motion for preliminary injunction are available online. Yesterday's Deseret News reported on the lawsuit.

HHS Adopts Final "Conscience Rules" To Protect Health Care Providers

The Department of Health and Human Services published in today's Federal Register the final version of its "conscience rules" that protect health care providers who have moral or religious objections to performing or furnishing particular services. (HHS News Release.) The Federal Register release titled Ensuring That Department of Health and Human Services Funds Do Not Support Coercive or Discriminatory Policies or Practices in Violation of Federal Law provides that the new rules take effect January 20, 2009-- just before the change in administrations.

The new rules protect institutional health care providers as well as individual employees of HHS grant recipients. Certain health care providers must certify their compliance with the new regulations. The rules prohibit state and local governments, as well as health care institutions, that receive federal funds from discriminating against those who object to furnishing abortion, sterilization and various other services. Slightly different constraints apply to different categories of funding recipients. One provision prohibits entities that receive HHS research grants from discriminating in employment against employees who refuse to take part in the research on the ground that it "would be contrary to his religious beliefs or moral convictions, or because of the religious beliefs or moral convictions concerning such activities themselves." The rules also encourage providers to disclose clearly to their patients what services they do and do not provide.

Reporting on the new rules, today's Washington Post says that "officials at hospitals and clinics predicted the regulation will cause widespread disruptions...." The paper speculates that clashes over the new rules could become more intense if embryonic stem cell therapies expand. the rules were published for comment last August. (See prior posting.)

Texas Town Uses Christianity In School Football Program

The Sherman, Texas Herald Democrat reported Wednesday on the continued use of Christianity in the football program of the Celina, Texas public schools. At the end of a recent game, players from Celina and opponent Liberty Hill joined hands to recite the Lord's Prayer. Celina coach Butch Ford said: "Our goal (against Liberty Hill) was to play with the joy of the Lord in our heart so we'd play excited all of the time, and we wouldn't be down no matter what happened...." In 1999, Celina's prior coach defied a court order to lead a pre-game prayer. One of the Celina team's players said: "In our community we stress God and Jesus very, very much.... I've never lived anywhere else in my life, but people who move in say there's no other place like Celina."

Arizona Bar Considering Expanding Oath To Assure Proper Representation of Gays

Yesterday's Yuma Sun reports that the State Bar of Arizona is considering expanding the non-discrimination oath that lawyers now take to include sexual orientation. Currently each lawyer admitted to the bar is required to sign an oath that he or she "will not permit considerations of gender, race, age, nationality, disability or social standing to influence my duty of care." While bar president Ed Novak says the new oath would merely require an attorney who takes on a case to represent the client without regard to the attorney's personal views on homosexuality, 31 attorneys have written a letter to the Bar objecting. They say the oath is so broad that it might require attorneys to accept cases that violate their moral beliefs. Novak, however, says that lawyers should not take on cases if they feel they cannot properly represent the client's interests.

Illinois Supreme Court Says Challenge To Pharmacy Rules May Move Ahead

In Morr-Fitz, Inc. v. Blagojevich, (IL Sup. Ct., Dec. 18, 2008), the Illinois Supreme Court in a 5-2 decision, overturned lower courts and held that plaintiffs had stated a justiciable challenge to a State Board of Pharmacy rule that requires pharmacies to dispense the "morning after pill" even if pharmacists or pharmacy owners have a conscientious objection to doing so. While the lawsuit was pending, the state amended its rule to permit objecting pharmacists to avoid dispensing the drug if a pharmacist at a remote locations authorizes a non-pharmacy employee to sell the drug to a customer. The Court summarized its holding as follows:

Plaintiffs are two licensed pharmacists and three corporations that own and operate pharmacies.... [T]he pharmacists brought this preenforcement challenge ... [claiming] that this rule is null and void on its face as in violation of the first amendment and statutory law....

In this decision, the ... Court held that the action was ripe for judicial review and should not have been dismissed. It held that legal issues were presented that did not require agency expertise and that the stores had shown disruption of their business despite the absence of actual enforcement. The requirement that administrative remedies must be exhausted before filing suit in circuit court was not applicable here....

The dissenters argued that plaintiffs had failed to exhaust their administrative remedies before filing suit. AP yesterday reported on the decision. (See prior related posting.)

UN General Assembly Passes Defamation of Religion Resolution With Less Support

Yesterday, the United Nations General Assembly-- for the fourth year in a row-- passed a resolution urging member states to take action against defamation of religions and religious hatred. Reuters reports that the resolution, supported by the Organization of the Islamic Conference, passed by a vote of 86 to 53 with 42 abstentions. This was significantly less support that the resolution garnered last year. Many Western countries and Christian advocacy groups have strongly opposed the resolution, arguing that it improperly restricts freedom of expression. Earlier this week, NPR's Morning Edition had a segment on the resolution (audio recording). (See prior related posting.)

Judgments Threaten To Bankrupt Vermont Catholic Diocese

A jury in a Vermont state court on Wednesday decided that the Roman Catholic Diocese of Burlington, Vermont is liable for damages of $3.6 million for negligence in hiring and supervising Edward Paquette, a pedophile priest. The Rutland Herald reports that this, along with other judgments, threaten to bankrupt the Diocese. Earlier this year, in a case involving a different plaintiff who was also abused by Paquette, a jury awarded damages of $8.7 million. Another 25 cases involving Paquette and other sexual abusers are still unsettled. The Diocese is litigating with an insurance company attempting to get some coverage for its losses from a policy that was in effect from 1972 to 1978. A judge has already put a lien on the Diocese headquarters building in Burlington.

Magazine Publishes Long Interview With Archbishop of Canterbury

New Statesman yesterday published a long interview with Rowan Williams, the Archbishop of Canterbury. The interview came from a series of meetings over the last year between Williams and reporter James Macintyre. Williams "spoke about sharia law, capitalism, the disestablishment of the Church, and his love of The West Wing."

Mukasey Recusal From Madoff Case In Part Because of Ties To Defrauded Jewish Organizations

In yet another twist, reported yesterday by the New York Times and Cityfile, Attorney General Michael Mukasey has recused himself from all Justice Department investigations into the massive Bernard Madoff securities fraud. One reason is that Mukasey's son, Marc, is a defense attorney representing Frank DiPascali, a top financial officer at Madoff's investment firm. (AP). However there are other reasons as well. Mukasey had close ties to two non-profit organizations that were victims of the Ponzi scheme. Mukasey's synagogue, Congregation Kehilath Jeshurun on the Upper East Side of New York, had invested $3.5 million with Madoff. Its affiliated Jewish day school, Ramaz, had $6.5 million invested with Madoff. According to Wikipedia, Mukasey was a 1959 graduate of Ramaz. At a later date, Mukasey's wife, Susan, was a teacher and headmistress of the Ramaz lower school. Also both of the Mukasey children attended the school. (See prior related posting.) [Thanks to Above the Law for the lead.]

Court Says Rabbis' Homes Qualify For NJ Parsonage Exemption

In Mesivta Ohr Torah of Lakewood v. Township of Lakewood, (NJ Tax Ct., Dec. 10, 2008), the Tax Court of New Jersey held that two homes owned by a religious organization are entitled to the parsonage exemption from property tax under New Jersey law (NJSA 54:4-3.6). The Tax Court found, that "while the synagogue is situated on school property and in a building that also houses educational pursuits, plaintiff maintains a separate and independent synagogue at the facility." It went on to hold that the parsonage exemption is available even though the congregation collected rent from the clergy occupying the houses, and that the receipt of federal Section 8 housing assistance does not preclude the exemption. The court rejected the argument that granting tax exempt status to the properties while receiving federal subsidies would constitute an endorsement of religion by the federal government.

Court Refuses To Reonsider Opinion In UW Catholic Foundation Case

In Roman Catholic Foundation, UW Madison, Inc. v. Regents of the University of Wisconsin System, 2008 U.S. Dist. LEXIS 101390 (WD WI, Dec. 16, 2008), a Wisconsin federal district court denied plaintiffs' motion for reconsideration in a case plaintiffs had largely won challenging the constitutionality of the University's refusal to fund certain or its activities out of student fees. (See prior posting.) The Roman Catholic Foundation unsuccessfully attempted to convince the court to reverse its holdings that defendants have qualified immunity, that plaintiffs were not entitled to monetary relief, that the University's discrimination was content-based (not viewpoint based), and that plaintiffs are entitled to declaratory relief but not an injunction.

Obama's Selection For Inauguration Invocation Creates Controversy

Barack Obama yesterday created one of the earliest controversies of his upcoming administration by inviting pastor Rick Warren, author of the popular book, The Purpose-Driven Life, to deliver the invocation at his inaugural. Warren is the founder of Lake Forest, California's Saddleback Church at which Obama and McCain held a candidate forum in August. CNN reports that the selection of Warren has particularly incensed gay rights supporters. Warren backed California's Proposition 8 banning same-sex marriage.

An Obama spokesperson defended the choice of Warren as an attempt to make the inauguration inclusive, even though Obama disagrees with Warren's views on gay rights. The Boston Globe says that "Warren has been a forceful advocate for reordering evangelical priorities.... [H]is public priority has been combating AIDS in Africa, and he has criticized the politicization of evangelical Protestantism." Dan Gilgoff of U.S. News says that this "is an early taste of the Democrats' post-election effort to reach evangelical Americans."

The benediction at the inauguration will be delivered by the 87-years old civil rights leader, Rev. Joseph E. Lowery, co-founder of the Southern Christian Leadership Conference. Yesterday's Atlanta Journal Constitution says that Yale poet Elizabeth Alexander will read a poem before Lowery's closing prayer. The Washington Post yesterday published the full schedule of the inauguration ceremony.

UPDATE: Here is an excerpt from a controversial Beliefnet interview with Pastor Rick Warren on the issue of gay marriage. Many opponents of Warren's participating in the inauguration point to language in this interview as being particularly insulting to gays and lesbians.

UPDATE2: AP reported on Sunday that Pastor Rick Warren defended the invitation extended to him to deliver the invocation at the Inaugural. In a speech to the Muslim Public Affairs Council annual convention in Long Beach (CA), Warren said that he loves people of other religions, of both political parties and he also loves "gays and straights."

UK Charity Commission Issues New Guidance For Religious Groups

Under Britain's Charities Act 2006, to qualify as a charity, a group must have charitable purposes that are for the "public benefit". (Background). In February, the Charity Commission (which regulates charities in England and Wales) issued for comment a supplementary guidance document titled Public Benefit and the Advancement of Religion. In a news release yesterday, the Commission announced that, following these public consultations, it is now releasing four supplementary public benefit guidance documents. They cover charities whose aims include preventing or relieving poverty, or advancing education or religion, and those that charge fees.

The guidance titled The Advancement of Religion for the Public Benefit provides that in order to qualify as a religious charity, an organization must advance religion. It will not qualify as charitable if its aims are political. However "charities can campaign for a change in the law, policy or decisions where such change would support the charity’s aims. Charities can also campaign to ensure that existing laws are observed."

The guidance goes on to provide that in assessing public benefit, the Charity Commission must also look at any "detriment or harm" that may flow from the organization carrying out its aims. Annex C to the Guidance sets out four potentially controversial examples of detriment or harm. It suggests that proselytizing in a country where that activity is illegal could be detrimental where it exposes the group's staff or volunteers to harm. In some cases refusal to permit medical treatment, as well as promoting hatred or violence and restricting adherents' personal choice to change their beliefs or leave a religion, could all be detrimental. Religious Intelligence reported on the new guidance document yesterday. (See prior related posting.)