7th Circuit Orders Preliminary Injunction: SIU Must Recognize Christian Legal Society

Yesterday in a 2-1 decision, the U.S. 7th Circuit Court of Appeals decided that the Christian Legal Society at Southern Illinois University School of Law should be granted a preliminary injunction requiring the Law School to recognize it as an official student organization, despite the Law School 's claim that CLS violated the school's non-discrimination policy. Christian Legal Society v. Walker, (7th Cir., July 10, 2006), is one of a series of cases that has been filed around the country challenging attempts by public law schools to deny recognition to CLS chapters that insist their members and officers abide by a statement of Christian faith that includes rejecting sexual activity outside of heterosexual marriage. The CLS requirement excludes from voting membership both (1) non-Christians and (2) active gays and lesbians. The challenge at SIU focused primarily on exclusion of gays and lesbians.

The majority opinion said that CLS had demonstrated a likelihood that it would succeed on the merits. First, it is unclear that CLS in fact violated the language of the University's non-discrimination policies. The EEO policy applies to the university itself, and the majority doubted that this encompassed student organizations. Second, the majority held that it is likely that CLS will succeed in showing that its right of expressive association has been unconstitutionally infringed. SIU's only interest appears to be in suppressing particular ideas expressed in CLS's statement of faith. Finally, the majority said it was likely that CLS could show that the University's policy has violated its free expression rights because the policy has been applied in a discriminatory manner. It appears that other student organizations that exclude members based on religious belief or gender have not been denied recognition.

Judge Wood's dissent argued that the trial court had not abused its discretion in denying CLS a preliminary injunction. He disagreed with the majority's conclusions about CLS's likelihood of success on the merits, emphasizing the lack of evidence on crucial issues at this stage of the proceedings. He concluded: "If CLS wanted to forbid membership to all African-Americans, or to mixed-race wedded couples, or to persons of Arabic heritage, surely SIU would be entitled at a minimum to say that [it]... would have to sustain itself without any state support-- even if it could root such a membership policy in a religious text..... [T]he indirect impact of ... recognition of a student group maintaining such a policy is that SIU ... may be seen as tolerating such discrimination. Given that universities have a compelling interest in obtaining diverse student bodies, requiring a university to include exclusionary groups might undermine their ability to attain such diversity."

An AP story in the Washington Post discusses the decision. Jeremy Richey's Blawg has links to all the briefs that were filed in the case and to recordings of oral arguments. The 7th Circuit had previously granted CLS an injunction to reinstate it as a recognized group while the appeal was being argued. [Thanks to Ted Olsen at Christianity Today, and to Rory Gray for leads.]

Pakistan's Hudood Ordinance Amended

Last Friday, Pakistan's President signed an amendment to the Hudood Ordinance that had been enacted by religious conservatives under the military dictatorship of General Muhammad Zia-ul-Haq, supposedly to bring Pakistani law into conformity with the Quran. IRIN News, reporting on the amendment, says that the Hudood Law permits women to be sentenced to death for having sex outside marriage. It did not allow for women to be released on bail and specified a mandatory prison sentence at a minimum for violations. The amendment signed Friday allows women to be released on bail instead of serving their prison time, and the government immediately began releasing some of the 6500 women in jail under the law. The government said it would provide legal and financial assistance to help rehabilitate them. Pakistan’s Minister for Women’s Affairs, Sumaira Malik, called the ordinance "un-Islamic", and President Musharif said that he wants to the Ordinance to be totally repealed.

New York Has First Hasidic Police Recruit

Today, the New York City Police Academy has its first Hasidic Jewish police recruit. The New York Post reports that Joel Witriol, a 24-year-old Talmud scholar from Brooklyn, starts his training today. The Police Department has accommodated his religious needs by granting Witriol an exemption from its hairstyle rules so he can keep his beard and his peyot, and it will excuse him from working on the Jewish Sabbath and holidays. When Witriol graduates, he will be only the third Hasidic police officer in the country.

New York City Aids Private Religious Schools

Under state law, New York City must provide the same transportation for parochial school students as it gives to public school students (NY Educ. Law Sec. 3635). The New York Sun today reports that New York City Council has allocated $1 million out of this year's $15 billion school budget so Jewish day schools can buy their own busses to accommodate their longer school day. The city is routing the funds to schools through Agudath Israel of America. Last year, the city spent $2.5 million to put computers in Jewish and Catholic schools. And the city's Industrial Development Agency has made tax-exempt bonds available for financing construction at some local private and parochial schools. Critics, citing the chronically underfunded public school system, call the grants to religious schools "pork barrel" spending-- probably not the best choice of terms for the grants to Orthodox Jewish institutions. About a half million students in New York City attend private and parochial schools. Religious schools say they are saving the state money by keeping children out of the public school system.

Strict Sharia Being Introduced In Somalian Courts

In Somalia, Sheikh Hassan Dahir Aweys, the new leader of the Council of the Islamic Courts that has taken control in Mogadishu says that all of Somalia must be governed by Sharia (Islamic law). Reuters South Africa today quotes Aweys as saying, "I want the world to respect our sharia and beliefs and cooperate with us and also recognize our administrations and humanity. They should work with us as free people who have a right to choose their own future and religion." Meanwhile, in contrast to the moderate form of Islam that has been prevalent in Somalia, courts are now beginning to apply strict sharia. Whipping has been imposed as a criminal sentence and Islamic courts announced plans to stone five rapists to death.
A leading Mogadishu cleric has said that Muslims who do not pray five times a day should be killed.

Alliance Defense Fund Profiled

Today's Washington Post profiles the Alliance Defense Fund and its work in fighting to give religion a place in public life. The Arizona-based conservative Christian organization has an annual budget of $20 million. One of ADF's founders, D. James Kennedy, says, "What we are really trying to protect are the things this country was founded on." However critics, like Americans United executive director Barry Lynn argues: "They're not for some form of generic religious freedom. They're for Christian superiority, that Christians take over the courts. They are living in this fantasy world where the majority religion, Christianity, is claimed to be literally under attack." Gary S. McCaleb, ADF's director of litigation, says that the group is involved in 80 to 100 open cases at any one time, and files one to two new cases each week. Last November, an AP article in the Post similarly profiled the group.

Recent Publications of Interest

From NELLCO LSR:

Catharine P. Wells, Who Owns the Local Church? A Pressing Issue for Dioceses in Bankruptcy, (forthcoming in Seton Hall Legislative Journal v. 29, no.2 (2005)).

From SSRN:

R.L. Eisgruber & D. Mariah Riah Zeisberg, Religious Freedom in Canada and the United States, (International Journal of Constitutional Law, Vol. 4, Issue 2, pp. 244-268, 2006).

From SmartCILP:

Symposium: Borrowing the Land: Cultures of Ownership in the Western Landscape, 83 Denver University Law Review 943-1093 (2006).

Symposium: Catholics and the Death Penalty: Lawyers, Jurors & Judges, 44 Journal of Catholic Legal Studies 277-378 (2005).

FLDS Member Convicted On Sex Charges In Polygamous Marriage

Today's Salt Lake Tribune says that last week's conviction of Kelly Fischer on two sex-crime charges related to his "spiritual" polygamous marriage to a 16-year-old girl may provide a blueprint for bringing similar charges against other members of the FLDS Church, including its leader, Warren Jeffs, if he is ever found. In Fischer's case, a conviction was obtained even though there was no testimony from the victim or eye witnesses. Charges against 7 additional men are pending. Mohave County Attorney Matt Smith says his objective is to send a message to FLDS members that it is unacceptable for older men to have sex with girls under 18, and that religious belief is no shield for that behavior.

July Trial In Marijuana Charges Against Church of Cognizance Founders

Today's Arizona Daily Star reports that the federal court trial of a couple charged with possessing 172 pounds of marijuana that they claim is for religious use is scheduled to begin July 18 in Las Cruces, New Mexico. A revised complaint adds charges of conspiracy to distribute marijuana, and includes two more defendants. The couple, Dan and Mary Quaintance, are founders of the Church of Cognizance, whose members eat or drink marijuana daily as a way of becoming more spiritually enlightened. The Church says it has 72 monasteries around the country in members' homes. Its motto is: "With good thoughts, good words and good deeds, we honor marijuana; as the teacher, the provider, the protector."

The Quaintances are relying on the U.S. Supreme Court's decision earlier this year in the UDV case to support their free exercise claims. However Charles Haynes, a senior scholar at the First Amendment Center, says the federal government is in a stronger position to win against the religious use of marijuana than it was for the hallucinogenic tea involved in UDV because of the prevalence of marijuana and the federal government's concern about a marijuana drug problem.

India's Supreme Court Orders Protection For Intermarrieds

The Supreme Court of India on Friday ordered police to provide new protections to young men and women who enter inter-caste or inter-religious marriages. Latta Singh v. State of U.P., (Sup. Ct. India, July 7, 2006), was a case involving violence and frivolous criminal charges brought by the unhappy family of a woman who married out of her caste. Not only did the court quash unjustified criminal charges, but it went out of its way to provide additional protections in the future.

It said: "If the parents ... do not approve of such inter-caste or inter-religious marriage the maximum they can do is ... cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such ... marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl [who is not still a minor]... undergoes inter-caste or inter-religious marriage ..., the couple are not harassed by any one nor subjected to threats or acts of violence, and any one who gives such threats or harasses or commits acts of violence ... is taken to task by instituting criminal proceedings by the police against such persons...."

Friday's Times of India covers the decision.

Atheist Law Center Disbanded

Larry Darby, the Holocaust denier who lost his race for Alabama attorney general in the Democratic primary this year, announced yesterday that he has formally dissolved his organization, the Atheist Law Center. Darby said the Center was formed to advocate for separation between religion and government. His statement on the closing of the Center was riddled with anti-Semitic rhetoric. He concluded by stating: "I no longer categorically deny the existence of God. My views have changed based on experiences or understanding of the world around me. I appreciate the wisdom of Thomas Jefferson who, in the Declaration of Independence, spoke of the laws of nature and of nature's God. I agree with moral precepts put forth by Jesus of Nazareth and I am Christian in a sense that Jesus of Nazareth would approve."

German Ban On Muslim Teacher Wearing Headscarf Found Discriminatory

In the German state of Baden-Wuerttemberg, an administrative tribunal has found illegal discrimination in a Stuttgart school's enforcement of a law that prohibits "outward expressions that undermine the neutrality of the government or peace between political and religious creeds in school." The school refused to permit a Muslim teacher to wear a headscarf while she taught, but Catholic nuns are permitted to wear veils when they teach. Expatica as well as Jurist both covered the decision yesterday.

DC Circuit Says In Chaplain Case That Establishment Clause Violation Creates Per Se Irreparable Injury

Yesterday, in Chaplaincy of Full Gospel Churches v. England, (DC Cir., July 7, 2006), the District of Columbia Court of Appeals reversed the trial court and remanded for further findings a suit alleging that the Navy has unconstitutionally maintained a religious quota system for the promotion, assignment, and retention of Navy chaplains that disadvantages chaplains of non-liturgical Protestant faiths (i.e. Baptist, Evangelical, Pentecostal, and Charismatic chaplains.) Plaintiffs had moved for a preliminary injunction, arguing that their evidence demonstrated that Catholic Naval Reserve chaplains were favored and permitted to remain on active duty beyond mandatory separation age limits. This they argued violated the Establishment Clause.

The district court had denied the motion for an injunction, in part because plaintiffs had not demonstrated irreparable injury. The Court of Appeals, however, held that the Navy's violation of the Establishment Clause constituted per se irreparable injury. It remanded the case to the trial court for it to determine whether plaintiffs had also shown the other 3 elements necessary for a preliminary injunction: likelihood of success on the merits, the injunction will not substantially injure other parties and that it will further the public interest.

Justice Kennedy Stays Order To Remove Mt. Soledad Cross

The battle to preserve the Mt. Soledad Cross took on new life yesterday. U.S. Supreme Court Justice Anthony Kennedy issued an in-chambers opinion granting a stay of the federal district court's order to remove the cross pending final disposition of the appeal to the Ninth Circuit. (See prior posting.) The Ninth Circuit had denied a stay of the district court order to remove the cross, though it had ordered expedited briefing and scheduled argument for Oct. 16, 2006. Earlier this week Kennedy issued a temporary stay. Now in San Diegans for the Mt. Soledad National War Memorial v. Paulson, (Sup. Ct., July 7, 2006), Kennedy, sitting as Circuit Justice, wrote:

[T]he equities here support preserving the status quo while the city's appeal proceeds. Compared to the irreparable harm of altering the memorial and removing the cross, the harm in a brief delay ... seems slight. In addition, two further factors make this case "sufficiently unusual" ... to warrant granting a stay. First, a recent Act of Congress has deemed the monument a "national memorial honoring veterans of the United States Armed Forces" and has authorized the Secretary of the Interior to take title to the memorial on behalf of the United State if the city offers to donate it. Sec.116, 118 Stat. 3346.... Second, San Diego voters, seeking to carry out the transfer ... have approved a ballot proposition authorizing donation of the monument to the United States. While the Superior Court ... has invalidated the ballot proposition [on state constitutional grounds,] ... if the state appellate court reverses ... and allows the memorial to become federal property, its decision may moot the District Court's injunction, which addresses only the legality under state law of the cross' presence on city property....

Today's San Diego Union-Tribune has a story on Justice Kennedy's decision.
[Thanks to SCOTUS Blog for the link.]

Kerala Government Probe of Actress' Visit To Indian Temple May Be Started

In the state of Kerala, in India, the Sabarimala Temple has become the center of world-wide attention lately. India eNews.com today reports on recent developments at the shrine which traditionally excludes women between 10 and 50 years of age. Only girls who have not attained puberty and women who have entered menopause are allowed to enter the temple, dedicated to Lord Ayyappa. However recently the Indian actress, Jaimala claimed that she had entered the temple in violation of this tradition and had inadvertently touched the temple deity some 18 years ago. On Tuesday the Kerala High Court accepted a petition seeking to order a government probe of Jaimala's actions. (Press Trust of India.) Meanwhile, the Travancore Devaswom Board, the custodian of the temple, said that it will begin a series of corrective rituals that will cost around half a million rupees and take almost two years to complete.

Delaware School District Remains At Center Of Prayer Debate

The Indian River School District in Delaware continues to be at the center of controversy about school prayer. An article in today's Sussex County (Delaware) Post reports that the board of education last week made minor changes in its policy on prayer at graduation ceremonies and baccalaureate services in the district. After a controversy in 2004, the board adopted a policy that provides that student-initiated, student-delivered, voluntary messages are permitted during such ceremonies. The most recent revisions deal with who is responsible for selecting student speakers and reviewing their speeches.

Lawsuits against the school district are pending challenging the Board's continuing practice of opening school board meetings with a prayer, its extensive pattern of school-sponsored prayer at graduation, and its promotion of Christianity in other contexts. (See prior postings 1, 2.) Last week, Jews on First published a long account of the charges against the school district and reported that the Jewish family that filed the 2004 lawsuit against the district felt it necessary to move to Wilmington, two hours away, out of fear of retaliation.

Jews For Jesus New York Subway Ads Are Controversial

A massive ad campaign on the New York City subways by Jews for Jesus (JFJ) has offended many Jews who ride the City's transit system, according to an article from today's New York Post. However, the guidelines for ads on New York subways adopted by MTA New York City Transit in 1997 only prohibit messages that discriminate on the basis of race, gender or sexual orientation, or those that contain images or sell services inappropriate for minors. Subway officials say that the First Amendment prohibits them from otherwise discriminating on the basis of their disagreement with an ad's message. JFJ has purchased ads in subway cars and on 42 illuminated panels at the Times Square subway station, urging Jews to accept Jesus as their Messiah. The ads are part of a broader $1.4 million campaign by Jews for Jesus that has sent 200 missionaries to New York City for the month of July. Today's New York Times reports that the missionaries will operate in all five boroughs and suburban counties, and will have special programs aimed at Russian-speaking Jews, Israelis and Hasidic Jews.

Church Sues To Keep Offering Classes In Its Building

The American Center for Law and Justice announced yesterday that it had filed suit in a Virginia federal district court to defend the rights of the McLean Bible Church to offer Bible study and religious ministry classes in its church building under its current use permit. The Church is one of the largest in the Washington, D.C. metropolitan area. The county claims classes were not included as part of the church’s permit and that if it wants to conduct them it must qualify as a college or university. The problem arose because of a 2001 agreement with Capitol Bible Seminary to administer some aspects of the Church's educational offerings. The suit claims that the actions of Fairfax County violate the Church's rights to religious free exercise under the Constitution and RLUIPA, as well as its freedom of speech and association, and its right to equal protection of the laws.

HUD Charges Apartment With Religious Discrimination

The U.S. Department of Housing and Urban Development brought an unusual housing discrimination case on Wednesday against Triple H. Realty, LLC of Lakewood, New Jersey. (HUD Press Release.) The complaint (full text) filed before an administrative law judge says that the owner, managing agent, and onsite superintendent of the Cottage Manor Apartments treated non-Jewish tenants less favorably than Jewish tenants in a number of ways, including imposing more restrictive rules and charging higher rents. The complaint alleged that respondents also attempted to set aside better-maintained buildings in the apartment complex for Jewish tenants. Non-Jewish Hispanic and African-American tenants were forced to transfer to buildings located in the rear of the apartment complex. The HUD complaint asks for a declaration that the respondents have violated the Fair Housing Act, an injunction against future violations, an award of damages and imposition of a civil penalty.

Fraud and Emotional Distress Claims Dismissed On First Amendment Grounds

In Peeler v. Way International, Inc., (Tenn. Ct. App., July 5, 2006), a Tennessee court of appeals upheld the dismissal of claims by a doctor and his wife against Way International, a worldwide religious organization. It found that many of the claims were barred by the statute of limitations and that the others would involve the court in determining the validity of The Way's religious doctrines and beliefs in a manner barred by the First Amendment's religion clauses. The suit alleged fraud and infliction of emotional distress resulting from The Way's teachings and mind control practices that required avoiding debt and "abundant sharing" of follower's assets. The plaintiffs feared being "marked and avoided" if they did not share their assets, which were allegedly not used for The Way's outreach purposes, but rather for the "prurient interests" its leadership.

Judge's Accommodation Of Religious Needs Of Defendant Upheld

In Trubin v. Mazzuca, 2006 U.S. Dist. LEXIS 45321 (SDNY, July 6, 2006), a New York federal district court rejected a Muslim prisoner's claim that he was denied his free exercise rights at his burglary trial because the judge refused to completely adjourn jury deliberations on Friday. The court found that the judge had proposed a reasonable accommodation that would have adjourned the proceedings for two hours for the defendant to attend services and then return to the court room.

House Hearings On Religious Minorities In Middle East

Last week, the House Committee on International Relations, through its Subcommittee on Africa, Global Human Rights and International Operations, held hearings on The Plight of Religious Minorities: Can Religious Pluralism Survive? The subcommittee has posted the Hearing Notice, and the prepared statements of The Honorable Henry J. Hyde , The Honorable John V. Hanford III, Ms. Nina Shea, Father Firas Aridah, Ms. Rosie Malek-Yonan, and Ms. Kit Bigelow. It also posted the subcommittee Staff Report that was submitted for the record. The hearings focused on the plight of religious minorities in a number of countries in the Middle East. [Thanks to Blog from the Capital for the information.]

Parties Agree, But Judge Postpones Hearing On Chabad vs. Hollywood, Florida

The U.S. Department of Justice announced yesterday that a settlement has been reached in the lawsuit against the city of Hollywood, Florida that is charged with discriminating against a Orthodox Jewish Chabad congregation by removed a special zoning exception that had been granted to it for operating its synagogue. (See prior posting.) Under the settlement the city will allow the Hollywood Community Synagogue to operate permanently at its current location, and to expand within a block of that location. The city also agreed that its leaders and managers, and certain city employees, will attend training on the requirements of RLUIPA, and that it will adopt new complaint procedures and report periodically to the Justice Department. Finally, in a separate agreement, filed with the court at the same time, the city agreed to pay Chabad $2 million in damages, attorneys fees and costs.

The settlement still has to be approved by U.S. district Judge Joan Lenard, who could call a public hearing to allow neighborhood residents to voice their opinions on the settlement. (Miami Herald, July 6). This morning, Judge Lenard postponed the hearing that had been scheduled for today on the settlement. (Bradenton Herald).

UPDATE: Yesterday, four homeowners in the neighborhood filed a request asking Judge Joan Lenard to permit them to argue against the propposed settlement between Chabad and the city of Hollywood. (Miami Herald).

Australian Schools Object To Newly Mandated Salaries For Chaplains

In the Australian state of South Australia, 187 schools face the prospect of having to raise the pay of their school chaplains by 400%. ABC South East reports that a new state law requires school chaplains be paid by the hour, instead of being given a small honorarium as is done at present. Critics of the new law call it "atheism by stealth", since they say this could make chaplains unaffordable for many schools.

Priest Sues Community College For Religious Discrimination

The Associated Press yesterday reported on a federal lawsuit that was filed in Connecticut last January by Rev. James A. Crowley, who is a Catholic priest and a business professor at Naugatuck Valley Community College. Crowley claims that his promotion was delayed after one of his supervisors objected to his clerical clothing and his use of "Catholic examples" in business ethics classes. Crowley claims that his class was placed under surveillance by campus police for over two years. After Crowley complained about the delay in his promotion, he was moved to an undesirable office and given a harsh class schedule. The lawsuit also claims that Dennis E. Spector, a supervisor who supported Crowley, was wrongfully accused of workplace violence and moved to the same windowless office as Crowley.

Recent Prisoner Cases

In Eley v. Herman, 2006 U.S. Dist. LEXIS 44963 (ND Ind., June 21, 2006), an Indiana federal district court dismissed a prisoner's free exercise and RLUIPA claim that his rights were violated when he was not permitted to observe the Friday Jumu'ah prayer service during lunch times. The court permitted the plaintiff prisoner, Gregory Eley, to introduce more evidence on his complaint that the county jail refused to provide him a Koran. The court held that while the jail had no obligation to furnish religious materials to Eley, if he could show that the jail's Christian chaplain was acting under color of law in furnishing Christian material to inmates, Eley might have an equal protection claim.

In Gray v. Johnson, (WD Va., June 30, 2006), a Virginia federal district court rejected an inmate's Establishment Clause challenge to the Therapeutic Community Program (a 12-step program for those with a history of substance abuse) in which the inmate was required to participate in order to accrue good conduct time. Plaintiff John Martin claimed that fellow participants pressured him to adopt religious beliefs during mandatory group meetings. However the court found that TCP serves the important, secular purpose of rehabilitation, and that there is no indication that the program failed to strike the necessary constitutional balance between the inmates' right to speak and their right to be free from state-sponsored religious indoctrination. (See prior posting on Magistrate Judge's recommendations.)

Prague Cathedral Belongs To Church, Not State

In the Czech Republic, according to Catholic News Service yesterday, a court has held that St. Vitus Cathedral and surrounding properties in Prague belong to the Catholic Church. This holding reversed an earlier decision that the 660 year old cathedral containing tombs of kings and queens was "built from the dues of people regardless of their religion" and should be regarded as a symbol of the entire nation. On June 16, a Prague Municipal Court judge vindicated the claim of the Church to the cathedral that was nationalized under a 1954 Communist decree, and restored to the Church in a 1994 court ruling which a year later was overturned. In his decision last month, Judge Vladimir Fucik said the church's ownership of the cathedral had never been legally terminated.

County Fire Ban Impacts Native American Religious Ceremonies

In Gilpin County, Colorado, this summer's drought has created problems for Native Americans who wish to practice their traditional sweat lodge ceremony. Today's Rocky Mountain News says that officials have refused to exempt the ceremony-- which involves heating rocks with fire-- from the county's ban on open burning imposed to prevent wildfires. County Commissioner Al Price said that allowing ceremonial fires would open the floodgates for other people seeking a way around the ban. However Ray Rubio, a Southern Paiute, complains that the county did nothing to stop a Fourth of July fireworks show which he says was equally a fire danger. The county said it had no jurisdiction over the show in Black Hawk. Not all counties are as unyielding. Boulder County Sheriff Joe Pelle said the county tries to accommodate those who want to use fire for religious ceremonies during the county-wide fire ban. "We don't have problems with sweat lodge fires starting fires, we have problems with knuckleheads drinking in the woods and having campfires," he said.

Contempt Hearing Scheduled In Prisoner Autopsy Ban Case

Civil and criminal contempt hearings are scheduled in federal court in Nashville, Tennessee for July 28 as the daughter of executed murderer Sedley Alley claims the state medical examiner and a prison warden ignored an order issued by the court. The court, heeding Alley's religious objections, prohibited the state from performing an autopsy on Alley's body. (See prior posting.) Yesterday, the Knoxville News Sentinel reported that Glenn Funk, attorney for state medical examiner Dr. Bruce Levy, said that an autopsy was not performed, but that fluids were routinely removed from the body. Funk also said that the medical examiner's office did not know of the preliminary injunction that was issued only three hours before Alley's late-night execution, and was not served on authorities until the next morning.

Islamic Foundation In Zoning Fight In Pennsylvania

The Philadelphia Enquirer today reports on a zoning fight involving the Foundation for Islamic Education in Villanova, Pennsylvania. The Foundation wants to expand operations on its 23-acre campus. However neighbors say the group has violated many of the restrictions imposed on them by a 1994 zoning order. Religion does not appear to be playing a major role in the zoning dispute.

Belarus Prosecutor Objects To Jewish Holiday Celebration In School

The European Jewish Press reported yesterday that a Jewish music teacher in Belarus has been threatened with prosecution if she again goes beyond teaching her young public school students about Jewish traditions, and instead continues to organize holiday celebrations for them. Lyudmila Izakson-Bolotovskaya, the director of Alef, was supposed to be teaching a class on Jewish culture and traditions to 12 Jewish children at Mogilev's state-run Kindergarten No. 72. She is accused of "illegal and deliberate dissemination of religious dogma to young children, which could cause considerable harm to their world view, rights and legal interests." Belarussian Public Prosecutor Sergei Kopytov said Izakson-Bolotovskaya said the teacher's conduct violates the country's 2002 Religion Law which prohibits activity by religious organizations in educational institutions. Belarus is attempting to limit religious activity to existing houses of worship. (See prior related posting.)

New York Investigation Into "Christian Skate Time" Dropped

Last week, the New York Division of Human Rights dropped its inquiry into Christian Music Skate Time at an Accord, New York skating rink. (See prior posting.) The Middletown (NY)Times Herald-Record reported last week that the investigation, which had garnered national attention, was dropped after the rink explained that the skating events were open to everyone, but merely featured Christian music. Also, the rink changed the advertised name from "Christian Skate" to "spiritual skate". [Thanks to Media Law Prof Blog for the information.]

Air Force Flag Script Secularized

The Las Vegas Review-Journal today reports on a little-noticed change by the U.S. Air Force in its unofficial script that had been traditionally read at some flag folding ceremonies, attaching meaning to each of the 13 folds. The original script, written by an anonymous Air Forces Academy chaplain in the 1980's included these two lines: "The 11th fold, in the eyes of a Hebrew citizen, represents the lower portion of the seal of King David and King Solomon, and glorifies, in their eyes, the God of Abraham, Isaac, and Jacob. The 12th fold, in the eyes of a Christian citizen, represents an emblem of eternity and glorifies, in their eyes, God the Father, the Son, and Holy Ghost." In January of this year, the Air Force revised its Honor Guard Manual to include a new script for flag folding ceremonies that is an historical account of the flag, with no religious references in it. Traditionally the scripts are not read at funerals, but are sometimes read at other ceremonies such as retirements and other special occasions.

U.S. Supreme Court Justice Delays Mt. Soledad Cross Order

Today' Los Angeles Times reports that on Monday the U.S. Supreme Court gave San Diego, California officials a reprieve from a federal court order to remove the Mt. Soledad Cross or else pay a $5000 per day fine. Associate Justice Anthony Kennedy ordered a delay until he or the entire court issues a further order. The city claims the cross is a war memorial, and thus does not violate the Establishment Clause. Prof. Carl Tobias of the University of Richmond said Kennedy's order is "fairly typical'' when justices want some time to further review an issue. (See prior posting.)

For Independence Day-- Religion and America's Founders

The July 4 holiday has brought a spate of articles on the religious views of America's founders. Here is one from the Macon (GA) Telegraph focusing on an interview with John Thomas Scott, a Mercer University professor of early American history and religion. Here is an article from uuworld.org on the views of John Adams and Thomas Jefferson that argues "Theologically, the second and third U.S. presidents were Unitarians." SFGate.com carries an interview with David L. Holmes, professor of religious studies at the College of William and Mary, and author of The Faiths of the Founding Fathers. Finally, here is a link to "State of Belief," The Interfaith Alliance Foundation's show on Air America Radio, which this Sunday discussed with four authors why the separation of church and state was important to America's founders.

Atheist Acquitted In Assault Case

A press release issued last week by American Atheists reports on the acquittal of Chester (Chuck) Smalkowski by a Guymon, Oklahoma jury. Smalkowski, an atheist, was charged with criminal assault after an altercation between him and Lloyd Buckley, his daughter's high school principal. Apparently the daughter, Nicole Smalkowski, was removed from the girls' basketball team after refusing to stand in a circle with her teammates on the gymnasium floor of the Hardesty High School and recite the "Lord's Prayer." False statements about the girl were apparently used as the basis for removal. The fight between the two men broke out when Smalkowski went to accused the principal of lying about Nicole. During voir dire, defense counsel had to explain to some of the potential jurors what an "atheist" is, in order to get an accurate answer to questions about possible bias.

Arguments In Malaysia's Federal Court In "Lina Joy" Case

The Malaysian news site Sun2Surf today has an extensive account of the arguments in Malaysia's Federal Court in the Lina Joy case. Joy converted from Islam to Christianity and wants the word "Islam" removed from her identity card, but the National Registration Department insists that she first furnish an apostasy certificate from the Sharia Court. (See prior posting.) During oral argument, the Chief Justice asked the lawyer for the Federal Territories Religious Council, Sulaiman Abdullah, why it is not discriminatory to require religion on the identity car of Muslims, but not of non-Muslims. Abdullah responded: "It is a useful provision and serves as a practical process like identifying a person's religion at death, the collection of zakat (tithes), for marriage purposes, for identification during the fasting month and so on." The case has attracted an unusual amount of attention in the United States because the American group, The Becket Fund, is heavily involved in the representation of Ms. Joy in the case, and has written a memo for Malaysian counsel analyzing the international and comparative law issues involved.

UPDATE: On July 4, Bernama reported additional details of oral arguments in the case and said that the Court will deliver its decision as quickly as possible.

Another Priest Attacked In Turkey

The Christian Post via AP reported the third attack against a Catholic priest since February in Turkey. The French priest, 74 year old Pierre Brunissen, was injured in the hip and leg and rushed to a hospital Sunday. A 16-year-old is currently being tried for the February killing of the Rev. Andrea Santoro, who was shot twice in the back after his attacker shouted "Allahu Akbar!" — Arabic for "God is great!"..

Court-Appointed Trustee For FLDS Properties Makes Progress

Today's Arizona Republic chronicles the progress that has been made by Bruce Wisan who was appointed by a Utah judge last summer to oversee the $120 million in assets of the Fundamentalist Church of Jesus Christ of Latter Day Saints. He has begun to privatize the land that had long been controlled communally by FLDS leaders. The land had been held by the United Effort Plan, a communal trust based on the frontier Mormon concept of an order in which workers donate their labor to a common fund to benefit all living in the community. Wisan also has sued the FLDS church for losses to the trust. Meanwhile a large FLDS temple has been built by the polygamous sect near Eldorado, Texas, and many from the twin cities of Colorado City, Ariz., and Hildale, Utah are apparently moving there.

USIP Urges US Support of "Islamic Renewal"

Yesterday's Morocco Times covered a special report by Abdeslam Maghraoui issued recently by the United States Institute of Peace (USIP) in Washington. The report argues that the only way for the U.S. to effectively counter Islamic extremism is to back "Islamic Renewal", a growing social, political, and intellectual movement whose goal is a deep reform of Muslim societies and policies. The USIP is an independent, nonpartisan institution established and funded by Congress. Here is the USIP's summary of the report and a link to the full text of the document titled American Foreign Policy and Islamic Renewal.

Israeli Government Suspends Welcome For Bnei Menashe

The Israeli government has temporarily halted the immigration to Israel of the Bnei Menashe, a group of about 7000 individuals living in India who claim descent from Jews exiled before the destruction of the First Temple, and who still live as Jews according to the Old Testament. Yesterday the Jerusalem Post reported that the government is halting all conversion activity among the group in India while an inter-ministerial committee reviews its policy toward those who have not completed the conversion process. 216 Bnei Menashe in India have already completed conversion and are awaiting transport to Israel. The problem began in 2003 when then new Interior Minister Avraham Poraz of Shinui stopped the group's immigration claiming that they were only coming for economic reasons, and that their supporters in Israel merely wanted them to come to help populate areas outside the Green Line.

New Scholarly Articles On Church-State Issues

From SSRN:
Josh Chafetz, Social Reproduction and Religious Reproduction: A Democratic-Communitarian Analysis of the Yoder Problem, (forthcoming 15 William & Mary Bill of Rights Journal (2006)).

From BePress:
Christian M. Keiner, Preaching from the State’s Podium: What Speech Is Proselytizing Prohibited by the Establishment Clause? (June 2006).

From SmartCILP:
Naz K. Modirzadeh, Taking Islamic Law Seriously: INGOs and the Battle for Muslim Hearts and Minds, 19 Harvard Human Rights Journal 191-233 (2006).

Andrew Koppelman, Is It Fair To Give Religion Special Treatment?, 2006 University of Illinois Law Review 571-603.

Defamation Claim Against Church and Minister Dismissed

In Trice v. Burress, Okl. Ct. Civ. App., June 27, 2006), an Oklahoma appellate court upheld the dismissal of a defamation claim that had been brought against Wesley United Methodist Church of Shawnee, Oklahoma and its senior minister by Todd Trice, former youth director of the church, who had been terminated from his position. Trice alleged that the church's senior minister had told a church member that Trice had been dismissed because he was questioning his sexuality. The court held that adjudicating the claim would involve an impermissible inquiry into church disciplinary matters, barred by the First Amendment. It also held that there is a qualified privilege for statements between church officers or members about the conduct of other officers or members, as matters affecting a common interest or purpose.

Church Challenges Denial Of Permit For Music Festival

The Pittsburgh, Pennsylvania Tribune-Review reported Saturday that a suit has been filed in federal district court in Pittsburgh by William D. Pritts, founder of the Church of Universal Love and Music (CULM). He alleges that Fayette County officials infringed his First Amendment free exercise rights last year when they denied his request for a special-exception permit to conduct nondenominational, interfaith services on his agricultural property in Bullskin Township. The county zoning board said that Pritts was operating a music business, not a church. Neighbors have complained for five years about the noise and traffic from day-long summer funk, jazz and rock concerts featuring well-known musicians on Pritts' 147-acre property. The complaint in the lawsuit alleges: "Defendants have chosen an overbroad prohibition of CULM from holding further events of any type, religious or commercial at the facility that places the maximum burden on CULM's religious exercise, despite the availability of several alternatives that do not burden the CULM's religious exercise."

Human Rights Groups Call For Repeal of Pakistan's Hudood Laws

In Pakistan, according to Saturday's AsiaNews.it, a group of eleven human rights organizations have called for repeal of the Hudood ordinances that were originally adopted in 1979 based on strict Islamic law. The laws relate to property rights, and to adultery and rape. Under the ordinances, a woman who is a victim of rape must bring before an Islamic court the testimony of four adult Muslim males who witnessed the act and can testify the act was carried out using violence. If the victim is unable to produce these witnesses, she may find herself accused of adultery. Also the laws prohibit non-Muslims from being witnesses or judges in these trials. The groups say this provision violates Pakistan's constitutional guarantee of equal rights regardless of sex, religion, race or creed.

Texas Group Seeks To Keep Churches Out Of Politics

Last Thursday, according to the Sherman Texas Herald Democrat, the 600-member Texas Faith Network launched a campaign to get religious leaders to sign a pledge to refrain form endorsing candidates or political parties, and avoid involving their congregations with partisan campaigns. Rev. Samuel Hose of St. John Vianney Catholic Church in Round Rock, Texas said: "Dragging churches into partisan politics endangers the integrity of our houses of worship and is disrespectful of the faith and beliefs of all congregants."

Washington School Head Sued Over Veto Of Graduation Music Selection

Today' Seattle Times reports on another battle over high school graduation ceremonies. It has been a tradition at Henry M. Jackson High School in Mill Creek, Washington, for the seniors in the wind ensemble to select a favorite selection for the ensemble to play during commencement. This year they chose Ave Maria, which they had performed at a school concert in December 2004. However, Superintendent Carol Whitehead vetoed the selection as too religious for commencement ceremonies. So, at her mother's suggestion, Kathryn Nurre, an 18-year-old who played alto saxophone in the ensemble, filed suit in federal district court, with the assistance of the Rutherford Institute. (Release) "It was our graduation and it was our choice to pick the piece, and we didn't think they should be able to tell us we couldn't," said Nurre. Her mother added that the students were not attempting to make a religious statement in selecting the piece.

Bundestag Approves First Anti-Discrimination Bill

Expatica reports that on Thursday, the Bundestag, the lower house of Germany's Parliament, for the first time approved a German anti-discrimination law that bans any form of discrimination based on religion, as well as discrimination based on race, ethnic background, sex, sexual identity, age or handicap. Last minute changes eliminated from the act's coverage most firings of employees after business expressed fear that there would be a rush of lawsuits. Also excluded from coverage are landlords who rent out fewer than 50 units. The law is expected to be approved by the Bundesrat, Parliament's upper house, on July 7.

Recent Prisoner Free Exercise Cases

In Thomas v. Condit, 2006 U.S. Dist. LEXIS 43019 (WD NC, June 13, 2006), a North Carolina federal court dismissed First Amendment and RLIUPA claims of a Jewish prisoner who was given a Passover meal on the wrong date because of an error in the Director of Prison's memo on holidays. The court also dismissed the prisoner's complaint that he was not permitted to attend a Christian Bible class, finding that this did not substantially burden the religious rights of a Jewish inmate. Finally the court dismissed the claim that the prisoner did not receive a non-pork meal after fasting all day on Yom Kippur because the prison chaplain, who apologized for the mix-up, did not follow up on the original request for the meal. The court found that eating after fasting is not part of the religious requirements of Yom Kippur.

In Thompson v. Hooper, 2006 U.S. Dist. LEXIS 43822 (D. Kan., June 27, 2006), a Kansas federal court refused to reconsider a previous judgment against Tremain Thompson in his suit alleging deprivation of his free exercise rights by prison officials. Thompson wanted to demonstrate that he was wrongly housed in a restricted pod of the jail. The court said that this would be irrelevant since in its prior determination, it found that Thompson was able to adequately exercise his religion in that restricted environment.

A New York trial court upheld the policy of the Sullivan Correctional Facility on accommodating Muslim worship. SCF provided Shi'ite Muslims with separate religious instructional classes during the week, but the Friday Jumah Service combined Shi'ite and Sunni Muslims. In Matter of Holman v. Goord, (Sup. Ct. Sullivan Co., June 29, 2006), the court rejected plaintiff's request for separate Shi'ite services.

In Blount v. Fleming, 2006 U.S. Dist. LEXIS 44413 (WD Va., June 29, 2006), a Virginia federal Magistrate Judge recommended a finding that prison authorities' denial of an inmate's request to receive the common fare diet substantially burdened the inmate's free exercise of religion in violation of RLUIPA and the First Amendment. The inmate held a sincere belief in the House of Yahweh. However the Magistrate also found that the former head of the prison's Religious diet Committee was entitled to good faith qualified immunity in the claims filed against him personally.

Court Says Veganism Is Not A Religion

In McDavid v. County of Sacramento, 2006 U.S. Dist. LEXIS 43711 (ED Cal., June 27, 2006), a California federal court held that even though the belief is sincerely held, veganism is not a "religion" for purposes of the First Amendment or RLUIPA. The issue arose in the context of a prisoner's request for a vegan diet. The court held: "Plaintiff's veganism ... does not address 'fundamental and ultimate questions;' it has no formal and external signs. Plaintiff does not allege the existence of any larger body of adherents to which he belongs. Instead, he describes his veganism as a 'right and appropriate way to live.' .... [Therefore] Plaintiff's dietary regimen is a purely secular lifestyle choice, not protected by the Free Exercise Clause."

Israel's High Court Asked To Enforce Its Holding On "Pop-Over" Conversions

In Israel, the World Union for Progressive Judaism has petitioned the High Court of Justice in order to force the Interior Ministry to recognize the Court's 2005 ruling mandating the recognition of so-called "pop-over conversions". The 2005 ruling held that a person who studies Judaism in Israel under the auspices of the Conservative or Reform movements, and then goes abroad for a conversion ceremony in one of the recognized Jewish communities overseas, must be recognized as Jewish under the Law of Return. Haaretz today reports that the Population Administration has not yet adopted rules to implement the Court's holding. The petition filed two weeks ago is on behalf of a woman who underwent a Reform conversion in Brazil after studying in Israel, but whose attempts to register as a citizen under the Law of Return were rebuffed by the Interior Ministry.

Contempt Findings In Louisiana School Prayer Case

On Wednesday, a federal judge in New Orleans partially granted two civil contempt motions against the Tangipahoa Parish School Board for violating an August 2004 consent order regulating prayer in the school system. 2theadvocate.com today reports on this development in the three-year battle between the ACLU and the school board. At issue were two school banquets at which students offered prayers. The school board claimed that in each case the school board president who attended did not know in advance about the prayers, and the school principals at the banquets believed-- incorrectly-- that student initiated prayers were permissible under the consent decree. Federal district Judge Helen G. Berrigan said in her ruling that school officials should have intervened to stop the prayers, and that good faith belief by the principals that the prayers were permissible is not a defense in a civil contempt action.

Some Religious Leaders Warn Against Jerusalem Gay Pride March

Today's New York Blade reports that some Jewish, Muslim and conservative Christian religious leaders warned that an international Gay Pride event scheduled for Aug. 6-12 in Jerusalem could trigger a worldwide Islamic uprising more intense than those that occurred after last year's publication of offensive cartoons in European newspapers. The leaders demanded cancellation of World Pride Jerusalem which was originally scheduled for last year, but was postponed because of the ongoing Israeli withdrawal from Gaza at the time. The Israeli Consular Office in New York said the Israeli government has no plans to interfere with the planned march. Israeli police and security agencies will provide the the same protection given to all public events.

Sheikh Ibrhim Sarsur, an Arab-Israeli member of the Israeli Knesset, said that if the Pride participants "dare to approach" Jerusalem's historic Temple Mount during the parade, "they will do so over our dead bodies." Event leaders say that the the Temple Mount is nowhere near the planned march route. Rabbi Sharon Kleinbaum of an LGBT synagogue in Manhattan said that opponents of Pride Jerusalem were using religion as a "weapon" for bigotry.

Report Urges British Prisons To Combat Institutional Religious Intolerance

The Associated Press reports today that in Britain, High Court Judge High Brian Keith has issued his report on British prisons. His investigation was prompted by the killing in 2000 of a Muslim prisoner by his racist cellmate at the Feltham Young Offenders Institution. The report cited 186 different problems-- many involving a breakdown of communications-- that contributed to the killing. Among other reforms, Keith recommended that the Home Office and the Prison Service introduce the concept of "institutional religious intolerance" to combat prejudice against Muslim inmates.

Oregon Pharmacy Board Modifies Conscientious Objection Policy

Earlier this month, the Oregon Board of Pharmacy issued a Clarification of its policy that permits pharmacists with moral or ethical objections to dispensing certain drugs to refrain from doing so. A pharmacist may not lecture a patient about the pharmacist's moral or religious beliefs. Pharmacies must insure that a patient's prescription needs are met either by another pharmacist on site or in another way. If the patient requests, the pharmacy must return the patient's prescription. Otherwise the pharmacy must identify another nearby pharmacy that will fill the prescription and refer the patient to it. Yesterday's Portland (OR) Catholic Sentinel reports on the policy changes that were requested by abortion rights groups. Gayle Atteberry, executive director of Oregon Right to Life, said "I am very disappointed that the pharmacy board did not stand up for those pharmacists who feel offended in their moral and religious conscience."

Sunday Closing Loophole To Be Closed In Nova Scotia

In the Canadian province of Nova Scotia, Premier Rodney MacDonald is acting to remove a loophole from the province's Sunday closing law that has permitted two large grocery chains to remain open on Sunday. Nova Scotia voters in an October 2004 referendum supported a requirement that stores with more than 4,000 square feet of retail space stay closed on Sunday. Two large grocery chains subdivided several of their stores into smaller businesses to get around the law. MacDonald said that a new plebiscite on Sunday closing will be held in 2008, but in the meantime the spirit of the voter's decision will be enforced. These developments were reported earlier this week in Today's Family News.

Malaysian State Gives Marriage Incentives To Get Animist Conversions

In Malaysia's northern state of Kelantan, the government's Religious Affairs Committee is unhappy over the low rate of conversion to Islam by the Orang Asli-- the state's indigenous inhabitants who are animists, according to yesterday's AsiaNews.it. Of the 12,900 Orang Asli in Kelantan, only 2,902 have converted. So the government has come up with a new plan. The government is offering a $2700 cash payment, an automobile and place to live, and an allowance of $1270 per month to any Muslim who marries an Orang Asli. Malaysian law requires anyone who marries a Muslim to first convert to Islam. The new policy has come under fire even from members of the Muslim community. Kelantan is the only Malaysian state governed by the extremist Pan-Malaysia Islamic Party.

Obama Urges Democrats To Talk More About Religious Faith

Speaking Wednesday in Washington at a conference on poverty sponsored by Sojourners, a progressive faith-based group, Illinois Senator Barack Obama said Democrats should to talk more openly about the role of religious faith in their lives. Today's Washington Post reports on the conference. Here is the full text of Obama's remarks posted by the Chicago Sun-Times.

Rabbi Has Been Consultant To Air Force On Religious Tolerance

Yesterday's Washington Jewish Week profiles Rabbi Arnold Resnicoff who has spent the past year as Special Assistant for Values and Vision to the Secretary and Chief of Staff of the Air Force. Resnicoff was called in after incidents of religious intolerance were reported at the U.S. Air Force Academy. Not only has Resnicoff worked on religious guidelines for the service, but he has moved more broadly to create a "values-based vision" for Air Force personnel. He believes that this may be more important in preventing future problems.

Autopsy On Executed Murderer Barred On Religious Grounds

In Nashville, Tennessee, lawyers for convicted murderer Sedley Alley who has just been executed by lethal injection have obtained a court order barring the state from performing an autopsy. Alley had religious objections to autopsy, according to today's Tennessean. In an attempt to prevent execution, Alley had unsuccessfully argued that the state's lethal injection protocol is cruel and inhumane. An autopsy might disclose whether Alley suffered as he was put to death. It is not clear whether the state will appeal the ruling by federal Judge Aleta Trauger.

UPDATE: The full opinion in the case, granting a prelimiary injunction on Free Exercise grounds as well as on the ground of lack of statutory authority is now available on LEXIS: Alley v. Levy, 2006 U.S. Dist. LEXIS 44641 (MD Tenn., June 28, 2006).

Arizona Governor Vetoes Bill On Recognition Of College Religious Groups

Arizona Governor Janet Napolitano yesterday vetoed the Associational Freedom in Higher Learning Act that would have prevented public universities from denying recognition to student groups that limit their membership to students who hold the religious, political or philosophical views of the organization. A prior posting describes S.B.1153 more fully. Today's Arizona Republic reports that this is one of nine bills vetoed by the Governor as the legislative session ended. The Governor's veto letter (full text) seemed to suggest that she saw the bill as broader than it in fact was. She said:

Students at postsecondary institutions should not be prohibited from participating in student organizations of their choice simply based on their religious or political beliefs. A law that would permit such discrimination could lead to a host of adverse consequences. For example, if this bill became law, there would be nothing to prohibit the school football team or chess club from denying participation by Jews, Christians, Muslims or members of other religions.

Suit Seeks Removal of Jesus Portrait From West Virginia High School

In Clarksburg, West Virginia, Americans United For Separation of Church and State (press release) and the American Civil Liberties Union of West Virginia have sued to force Harrison County education officials to remove a large a portrait of Jesus hanging in Bridgeport High School. The The painting has hung in the school for at least 30 years. Originally it was in a counselor's office, but was moved to the wall outside the principal's office when the counselor left the school. After a request that the painting be removed, the school board earlier this month by a tie vote decided to keep it. Expecting a lawsuit, Board President Sally Cann voted in favor of removing the painting, saying that the school did not have to keep it to profess its Christian values. The suit, filed on behalf of a parent of a former student as well as on behalf of a former teacher in the school, alleges "the school district has sent a powerful visual message to all who enter the school that Christian students are more valued than others and that students who wish to curry favor with the administration should adhere to the school district's preferred religious views..." Reports on the case are in today's Charleston (WV) Gazette and the Washington Post.

California Supreme Court Will Not Review Unruh Act Case Against Lutheran School

Yesterday the California Supreme Court denied review in California Lutheran High School Association vs. Superior Court, a suit by two high school girls and their parents challenging the girls' expulsion from a Lutheran religious high school in Wildomar, California. (See prior postings 1, 2, 3.) School principal Gregory Bork claims that the two girls may have been engaged in a lesbian relationship in violation of the school's code of conduct which prohibits actions "contrary to Christian decency.'' The suit claims that the school's action violated California's Unruh Act that prohibits prohibits businesses from discriminating on the basis of actual or perceived sexual orientation. The school argues that as a non-profit religious school it is not a business and so is not covered by the law. It also argues that its free exercise rights override any statutory restriction. Yesterday's San Francisco Chronicle reported on the decision.

House Committee Defeats Pledge of Allegiance Bill

Yesterday, the House Judiciary Committee defeated by a 15-15 vote the Pledge Protection Act (H.R. 2389) that would have removed federal court jurisdiction to hear challenges to the constitutionality of the Pledge of Allegiance. One Republican, U.S. Rep. Bob Inglis of South Carolina, voted with 14 Democrats to defeat the proposal that had been strongly backed by conservative religious groups concerned about challenges to the phrase "under God" in the Pledge. Americans United for Separation of Church and State issued a press release calling the defeat a tremendous victory.

Supreme Court Upholds Depriving Prisoners Of Rights To Encourage Behavior Changes

The United States Supreme Court today in Beard v. Banks (June 28, 2006) upheld a Pennsylvania prison policy that deprives the most incorrigible, recalcitrant prisoners of newspapers, magazines, and personal photographs as an incentive for better prison behavior. Pennsylvania still permitted these inmates to possess legal and personal correspondence, religious and legal materials, two library books and writing paper. By a 6-2 vote , the Court rejected prisoners' First Amendment challenges to the regulations. Justice Breyer wrote the majority opinion, Justice Thomas wrote a concurrence joined by Justice Scalia, while Justices Stevens and Ginsburg dissented. Justice Alito did not participate. Neither the majority nor the concurring opinion gave any indication that Pennsylvania's exception for religious material was necessary for the policy to be valid. The Becket Fund had filed an amicus brief in the case arguing that the deprivation theory could equally be used to take away from prisoners their access to the Bible or other sacred texts, or to deny them of the right to otherwise practice their religion, in violation of their constitutional rights to free exercise of religion.

Here is Reuters report on the decision.

Parishioners Sue Bishop to Get Control Of Closed Church Building and Parish Assets

In Kansas, Ohio, members of St. James Catholic Church have filed suit against the Diocese of Toledo and Bishop Leonard Blair to get control of their former parish's property and assets, according to this morning's Toledo Blade. Last July Bishop Blair closed 16 churches including St. James Parish, and merged 12 others into new parishes in the 19-county diocese. Two months before the scheduled closure, about 50 St. James parishioners began a prayer vigil in their wood-frame church. Ultimately the Diocese evicted the worshipers and padlocked the building. The members' lawsuit, filed in Seneca County Common Pleas Court, claims that parishioners are the true owners of parish property, and that the Bishop was merely holding the property as trustee for them. Elsewhere in the country, in diocese bankruptcy filings, the Church has often argued the position that plaintiffs are taking here in an effort to keep parish property from Diocese creditors. Meanwhile former St. James parishioners meet each Sunday for a prayer service at a local Methodist church. Rev. Jaroslaw Nowak, of the Polish National Catholic Church, celebrates Mass with them once a month.

UPDATE: A second similar suit was filed against the Toledo Diocese on June 28 by former members of St. Joseph parish in Carey, Ohio whose church was closed by the Diocese in July 2005. (Tiffin Advertiser-Tribune).

Navy Chaplain Continues To Press For Sectarian Prayer

WorldNetDaily reports today Navy Chaplain Lt. Gordon James Klingenschmitt is continuing his battle with the Navy to be able to freely pray "in Jesus name" at military ceremonies. (See prior posting.) A military judge has upheld a decision by Rear Adm. F.R. Ruehe to reject Klingenschmitt's appeal of sanctions imposed on him by his commanding officer Capt. James A. Carr. The officer's action stemmed from a decidedly Christian message delivered by Klingenschmitt at a memorial service for a sailor who died in a motocycle accident. Also Klingenschmitt has been warned about non-inclusive evening prayer over the ship's PA system. The military judge's ruling has led Klingenschmitt to file a whistleblower complaint with Sen. Hillary Clinton and other members of Congress charging Navy officials with violating the Constitution. Meanwhile Adm. Ruehe is convening a special court-martial against Klingenschmitt for the chaplain's appearance in uniform at a March 30 event with former Alabama Chief Justice Roy Moore in front of the White House.

Ohio Prisons Agree To Settle Suit By Changing Prison Practices

The Ohio Department of Rehabilitation and Corrections has tentatively agreed to settle a lawsuit brought against its former director by a deputy warden who claimed that the director was using his position to promote Christianity in the prison system. (See prior posting.) Yesterday's Akron Beacon-Journal says that in the settlement in Rose v. Wilkinson the state has agreed that it will eliminate prayers, religious music and proselytization from all secular events held inside Ohio's prisons. The prison system will not order inmates to attend religious programs and will not sponsor or endorse the message of any religious program allowed to enter the prison. In addition, the Department will stop holding employee training sessions and other programs in churches.

Suit Challenges Exclusion Of Religious Meetings From City Hall

The Alliance Defense Fund announced yesterday that it has filed suit in federal court against the city of Idaho Springs, Colorado to challenge its policy that prohibits the use of City Council chambers for religious events and meetings. The issue arose when Idaho Springs residents who were observing the National Day of Prayer were denied use council chambers as a back-up location when rain precluded use of a city park. The complaint (full text) in Barkey v. City of Idaho Springs says that City Hall Council Chambers- Meeting Room is open for use by non-profit and community service groups generally, but not for meetings with religious content or for religious ceremonies. the suit claims that this policy of viewpoint and religious discrimination violates First and Fourteenth Amendment protections.

Bill To Save Mt. Soledad Cross Introduced Into Congress

On Monday, yet one more attempt to save San Diego, California's Mt. Soledad Cross was made. California Congressmen Duncan Hunter, along with two co-sponsors, introduced a bill that would have the federal government acquire the city-owned property on which the Cross stands. The Defense Department would take over responsibility for maintenance of the area, through a contractual arrangement with the private Mt. Soledad Memorial Association, the group that erected the Cross in 1954 to honor Korean War veterans. Reporting on this today, the San Diego Union-Tribune says that this bill would permit the city of San Diego to remove itself from the costly legal battle over the memorial site. Currently the city is under court order to remove the Cross by august 1 or face a fine of $5000 per day. (See prior posting.)

Bavarian Premier Wants Tougher Blasphemy Laws

Bavarian premier Edmund Stoiber is pressing for the enactment of stricter blasphemy laws in Germany. Deutsche Welle today says that the premier has called for all forms of blasphemy, regardless of religion, to be outlawed. He wants up to a three-year prison sentence for the most severe instances of deliberate insults to the religious feelings of others. Currently blasphemy is an offense in Germany only if it "disrupts the public peace". Germany's Lutheran Church does not support Stoiber's proposal. Petra Bahr, the church's commissioner for culture, said "We believe that respect for religious symbols can be better achieved through religious instruction." Also,Bahr contended, the government is not in a position to "decide what's blasphemous and what isn't." Muslims in Germany also are not behind Stoiber's idea. Burhan Kesici, vice president of the conservative Islamic Federation, said. "We think this is just a political move, calculated to keep certain circles in Bavaria happy and so we're not supporting it."

10 Commandments Across From Supreme Court OK'd

A Washington D.C. group that set up a large display of the Ten Commandments on its property across the street from the Supreme Court building apparently has been vindicated. Today's Washington Post reports that the D.C. Department of Transportation has rescinded an earlier warning to Faith and Action that it faced a $300 per day fine for failing to obtain proper permits to erect the 850-pound granite monument. (See prior posting.) The city's letter said: "In view of the First Amendment interests reflected in the installation of the Ten Commandments sculpture . . . and upon further consideration of applicable law," the city now believes that no permits are required.

Amish Farmer Challenges Ohio's Milk Regulations

In New Hope, Ohio, an Amish farmer is mounting a religiously-based court challenge to Ohio's prohibition on the sale of unpasteurized milk (ORC 917.04). Yesterday's Akron Beacon-Journal reports that the challenge comes after Arlie Stutzman had his license to sell milk suspended for two months for selling unlabelled milk to a state Department of Agriculture undercover agent. Even though his license was returned, regulators have asked a Holmes county common pleas court judge to formally order Stutzman to comply with dairy laws. Stutzman argues that his religious beliefs call for him to share his milk with others. Stutzman believes he was targeted because he is part of an arrangement that skirts the prohibitions on selling unpasteurized milk. His cows are partly "owned" by a group of 150 families in a "herd share" agreement under which all of the owners, for a fee, are entitled to a portion of the milk.

Jehovah's Witnesses Complain About Solicitation Restrictions

In Raynham, Massachusetts, Jehovah's Witnesses are complaining about a requirement that anyone planning to engage in door-to-door solicitation or sales notify the police in advance. Their concerns were publicized in yesterday's Taunton (MA) Gazette. Last month, in a letter to the Board of Selectmen, Paul Polidoro, associate counsel for the Watchtower Bible and Tract Society, argued that applying the notification rule to those engaged in religious activities is unconstitutional. In 2002, the U.S. Supreme Court invalidated a similar policy imposed by an Ohio town. Raynham Police Chief Louis J. Pacheco said that the policy keeps the police from bothering ministers because it allows officials to reassure homeowners who call to complain about strangers wandering in their neighborhood.

Malaysia Court May Rule On Jurisdiction Over Converts

In Malaysia, the Federal Court is expected to rule in the next few days on whether Islamic courts have sole jurisdiction over Muslims who claim to have converted from Islam to another religion, according to yesterday's Boston Globe. In recent months, there have been a number of civil suits in Malaysian courts by converts who are seeking to register their new religious affiliation. Fundamentalists are pressing to make apostasy a capital offense in the country, though it is unlikely that they will succeed. However, on the website of the Prime Minister's Department for Religious Affairs, a Malay-language Frequently Asked Questions section says that apostates should be isolated and counseled, and if they fail to repent they should be jailed. It continues: "If the person remains an apostate, it is left to the respective authorities to impose the fitting sentence that is death."

Settlement-- Maybe-- In Chabad vs. Hollywood, Florida

There always seems to be another shoe to drop in the discrimination lawsuit against Hollywood, Florida brought by a Chabad Congregation and the U.S. Department of Justice after the city removed a special zoning exception that had been granted for operating a synagogue. (See prior postings 1, 2, 3, 4. ) The South Florida Sun-Sentinel and the Miami Herald today reported on the most recent developments.

With a trial date set for today, last Friday Hollywood city commissioners voted to offer to settle the case by allowing the synagogue to stay in its current location for a year while the city rewrote its zoning laws which Judge Joan Lenard had said were unconstitutionally vague. However, Chabad rejected that offer late Friday, and that led to a flurry of negotiations over the weekend. In court this morning, the parties announced a new settlement-- one much more favorable to Chabad. In exchange for Chabad and the Justice Department dropping their suit, Chabad will be awarded $2 million and permitted to operate permanently from inside the two homes in a residential neighborhood that it is now using for a synagogue. It will also be permitted to expand within a city block without ever having to seek a special permit. The city will rewrite its provisions on special zoning permits. City officials -including commissioners- will have to attend special classes on religious land use laws. And the city will agree not to "harass" Chabad in the future.

Judge Lenard received the news of the settlement somewhat grudgingly, since the pool of potential jurors were already at the courthouse. This new settlement has to be voted on by city commissioners on Wednesday. Attorneys representing the city and the city's insurance company called commissioners individually this weekend and got at least four "approvals" for the new agreement, but Mayor Mara Guilianti and others said they were stunned by the new agreement. If commissioners do not approve the settlement on Wednesday, trial of the case will begin on July 6.

UPDATE: It was reported by the Miami Herald on June 29 that with city commissioners poised to reject the settlement wiht Chabad, for the first time city and synagoge officials will meet face-to-face to attempt to negotiate a settlement. The meeting, scheduled for Thursday at 1:00 will include Justice Department attorneys who are flying in to help with the negotiations.

U.S. House Members Debate Concerns Over Palestinian Christian Community

In Washington, members of Congress are expressing concern over the dwindling size of the Palestinian Christian community in the West Bank. However they sharply disagree over whether the cause of the problem is Israel or the Palestinian Authority. This past week's Forward reports that last month House International Relations Committee Chairman Rep. Henry Hyde (R-IL) sent a letter to President Bush, warning that "Israeli actions [in the West Bank] seem to go beyond the realm of legitimate security concerns and have negative consequences on communities and lands under their occupation." A few days later two members Hyde's committee, Rep. Michael McCaul, (R-TX) and Rep. Joseph Crowley (D-NY), circulated to their colleagues a resolution blaming the P.A. for the problem. So far they have obtained 20 co-sponsors. The Resolution asks the President and Secretary of State "to address the condition of minorities under Palestinian Authority rule in order to save from destruction the oldest Christian community in the world." It also urges the State Department to "investigate and report on the extent of human rights violations by the Palestinian Authority" against Palestinian Christians.

Court Orders US To Act On Muslim Scholar's Visa Application

A federal district judge in New York has given the federal government ninety days to act on the visa application of Tariq Ramadan, a prominent Islamic scholar who had been appointed to a faculty position at Notre Dame University. In 2004, just as he was ready to move to the U.S., his visa was revoked without explanation. Notre Dame then reapplied for a visa for him, but the government did not act on the application. This forced Ramadan, a Swiss citizen who is one of the most prominent European thinkers about Islam, to resign his Notre Dame position.

Instead of deciding the First and Fifth Amendment issues raised in the complaint, the court in American Academy of Religion v. Chertoff, (SDNY, June 23, 2006) held that the government has failed to adjudicate Ramadan's via application within a reasonable period of time as required by the Administrative Procedure Act (5 USC 555(b)). The decision is covered by today's Inside Higher Ed.

French Stores Battle Over Sunday Closing Restrictions

The Washington Post yesterday reported on the challenges by French retail stores to regulations prohibiting many places of business from being open on Sundays. Complex regulations permit stores to open on Sundays only if they are in a tourist area and have a cultural, recreational or sports dimension. So far, courts have upheld the regulations. On June 14, an appellate court ordered Usines Center mall outside Paris to close on Sundays. The mall with 140 shops and 600 employees has been operating illegally on Sundays for 20 years. Officials "know the law is old and stupid, and at the same time they don't want to change it, because of Catholic tradition and social issues," said Jean-Patrick Grumberg, president of the mall's association of shop owners.

Supporter Of Islamic State Installed In Somalia

The New York Times reports this morning that in Somalia, Sheik Hassan Dahir Aweys has been appointed the leader of the 88-member Council of the Islamic Courts, the newly formed governing body formed after Islamists ousted governing warlords earlier this month. (See prior posting.) Aweys has been a supporter of making Somalia an Islamic state. In the past he has told followers that God would forgive them for spilling the blood of foreign peacekeepers in the country. He has also said Somalis who hand over their countrymen to American for cash are guilty of "selling us to the Jews."

Bolivian President Withdraws Proposal To End Religion Classes In Schools

The Washington Post reported yesterday that in Bolivia, President Evo Morales has withdrawn a proposal to replace religious education with ethics classes in the country's school curriculum. The change had been opposed by the country's powerful Catholic Church. Bolivia is in the process of rewriting its constitution. With an 80% Catholic population, Bolivia's current Constitution (Art. 3) recognizes Catholicism as the official religion. The Church however is willing to accept a change to eliminate that formal status. (See prior posting.) It is more concerned that society in general not become less religious.

City-Owned Theater Refuses Film Offensive To Church

In Maumee, Ohio, the city-owned Maumee Indoor Theater has turned down the makers of "Twist of Faith" who wanted to engage the venue to show their Oscar-nominated documentary about a firefighter who confronts the trauma of boyhood sexual abuse by a Catholic priest. Toledo Blade columnist Russ Lemon today says that the promoters were willing to guarantee the city that it would not lose money on a week-long showing of the film, but Maumee-- just named an "All-American City"-- did not want to offend the Catholic Church.

Justice Alito Gets St. Thomas More Award

U.S. Supreme Court Justice Samuel Alito, Jr. was honored yesterday by members of the St. Thomas More Society in his home town of Trenton, New Jersey for his contributions to "family, church and society". The Times of Trenton reports that Alito received the diocese's St. Thomas More Award after attending the fourth annual Red Mass, a tradition that originated in the Middle Ages. In his remarks, Justice Alito said that St. Thomas More, who was executed for opposing King Henry VIII's claim to be head of the Church of England, would be disappointed that today in parts of the world people are still killed for converting to Christianity. He added that More might be proud of religious freedoms in the U.S., but would be disappointed by pop culture.

Pennsylvania Home Schooling Case Appealed

The Altoona (Pennsylvania) Mirror reports today that an appeal has been filed with the U.S. 3rd Circuit Court of Appeals in Combs v. Homer Center School District. (See prior posting.) In the case, the district court rejected free exercise challenges to Pennsylvania's home schooling regulations. Parents say that it is "sinful" for them to provide state authorities with a portfolio of their children’s work and a log of their educational goals. The Home School Legal Defense Association is coordinating the legal challenge.

Nursing Student Fails To Prove Free Exercise Claim

In Olojo v. Kennedy King College, 2006 U.S. Dist. LEXIS 42109 (ND Ill., June 7, 2006), a nursing student at a state community college filed a series of claims against her teacher and the school, one alleging a violation of the free exercise clause. Badejoko Olojo claimed that her professor, Kina Montgomery told her "not to ever mention the name of Jesus anytime she is engaged in a conversation with her." Also, upon learning of Olojo's pregnancy, Montgomery asked Olojo whether she would like to use contraceptives to terminate the pregnancy. Olojo explained that her religious beliefs prevented her from doing so. The court concluded that Olojo made no allegations that Prof. Montgomery inhibited her ability to practice her religion in any way. The court found Olojo's other statutory civil rights claims so frivolous that it imposed Rule 11 sanctions on the attorney involved.

Recent Books and Law Review Articles

New Books:
James Lowell Underwood & W. Lewis Burke (eds.) , The Dawn of Religious Freedom In South Carolina (Univ. of South Carolina Press, March 2006).

Matthew Levitt, Hamas: Politics, Charity and Terrorism in the Service of Jihad (Yale University Press), reviewed in today's New York Times.

From SSRN:
Clark B. Lombardi & Nathan J. Brown, Do Constitutions Requiring Adherence to Sharia Threaten Human Rights?: How Egypt's Constitutional Court Reconciles Islamic Law with the Liberal Rule of Law , 21 American Univ. International Law Review 379-435 (2006).

From SmartCILP:
Symposium on Law & Politics as Vocation, 20 Notre Dame Journal of Law, Ethics & Public Policy 1-512 (2006).

Court Rejects Free Exercise Claims In Divorce Case

In MacFarlane v. MacFarlane, (Oh. Ct. App., Cuyahoga County, June 22, 2006), an Ohio appellate court rejected a wife’s attempt to move jurisdiction over the divorce and custody case filed by her husband to the Diocesan Tribunal of the Cleveland Catholic Diocese. Among the grounds for denying her request was that child custody disputes are not subject to arbitration and that she had waived any right to arbitration when she filed her own complaint for legal separation with the court.

The court also rejected the wife’s claim that her free exercise rights had been infringed when the court gave custody of the couple’s children to their father. The mother claims that this prevents her from home schooling the children and therefore is unable to raise them in the Catholic faith. The court found that the trial court had not been motivated by a preference for a particular religious belief, or by any antagonism to the Catholic faith, but instead acted to protect the best interests of the children. Moreover, nothing prevents the mother from attending religious services with the children or enforcing religious beliefs with them in the home.