Dissent In Washington DOMA Case Argues Establishment Clause

Yesterday, in Andersen v. King County (WA. Sup. Ct., July 26, 2006), the Washington state Supreme Court in a 5-4 decision with six different opinions upheld its Defense of Marriage Act against challenges under various provisions of the state constitution. (New York Times coverage.) The dissenting opinion of Justice Bobb J. Bridge contains an interesting anti-establishment argument. Justice Bridge argues that DOMA is "clearly an unconstitutional foray into state-sanctioned religious belief":

What we ought not to address is marriage as the sacrament or religious rite--an area into which the State is not entitled to intrude at all and which is governed by articles of faith.... As succinctly put by amici ...: "To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment."... After all, we permit civil divorce though many religions prohibit it--why such fierce protection of marriage at its beginning but not its end?...

To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA....

[R]eligious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because "marriage was [ultimately] a state matter, not subject to . . . religious restrictions."... This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others' most intimate life decisions.... The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.

House Members With Opposing Views Have Dinner Over Church-State Issues

The Forward earlier this week reported on an unlikely group of House of Representatives members who have formed a discussion group to focus on church-state issues. The members are Democrats Steve Israel (NY), Susan Davis (CA) and Henry Waxman (CA). The Republicans in the dinner group are Todd Aiken (MO), John Hostettler (IN), and Walter Jones (NC). The diversity of the members is illustrated by the ratings they received in 2005 from the Family Research Council on whether their voting records reflect "the Judeo-Christian worldview". Waxman and Davis got a rating of 0 and Israel had a 8. Aiken, Hostettler and Jones each had a rating of 100.

Rehearing Denied; Supplemental Opinion Issued In Notre Dame Funding Case

Yesterday, the U.S. 7th Circuit Court of Appeals denied an en banc rehearing in Laskowski v. Spellings, (7th Cir., July 26, 2006), a case challenging on Establishment Clause grounds the receipt of federal funds by Notre Dame University for use by it to fund a Catholic teacher training program. In April, a 3-judge panel held that it was possible that the lower court could order Notre Dame to repay the $500,000 grant to the federal Treasury. Along with yesterday's denial of a rehearing, the original panel wrote a supplementary opinion clarifying that whether Notre Dame had to make restitution of the funds depended on whether or not it had reason to know that the grant it was receiving was illegal. The opinion pointed out that Congress cannot make grants to religious institutions without imposing conditions to assure that the funds will be used only for secular purposes. It continued: "Whether appropriate conditions were imposed by the Secretary of Education and were properly observed or implemented by Notre Dame are the issues on the merits that the district court will be resolving in the first instance on remand." The Fort Wayne News-Sentinel reports on the decision.

Greek Government To Build Athens' First Mosque

After 30 years of negotiations and failed attempts, the government of Greece is poised to approve building of Athens' first mosque, and government funds will be used for its construction. Kathimerini reports that while 200,000 Muslims live in Athens, there is still no official place of worship for them. The Inner Cabinet on Tuesday approved plans by Public Works and Environment Minister Giorgos Souflias to do something about this. In April, 10,000 people had petitioned the Education and Religion Ministry asking for the project to move forward.

Report On Religious Liberty In The Americas

Zenit continues to reprint portions of the report by Aid to the Church In Need on religious freedom around the world. Here are the sections of the report dealing with religious freedom in the Americas- 1, 2. Here is what the report has to say about conditions in the United States:

In the United States, the debate involving the conflict between two different ideas of the separation or distinction between religion and the state institutions is played out at the level of civil and individual rights.

The conflict between American society and the Islamic communities is no exception. The latter complain of attacks against their places of meeting and prayer. They pursue legal paths in their attempts to introduce Koranic law into the legal system as has happened in Canada.

Other parts of the report were the subject of a prior posting.

Newdow Appeals "In God We Trust" Loss To 9th Circuit

The Pacific Justice Institute has recently announced that an appeal to the 9th Circuit is being filed in Newdow v. Congress of the United States. In the case, a California federal district court upheld the constitutionality of "In God We Trust" on U.S. coins. (See prior posting.) [Thanks to How Appealing for the information.]

House Bill Proposes Prison Goods and Services For Non-Profits, Including Churches

Congress is proposing a new kind of governmental support to non-profit organizations, including religious organizations. The scope of the program became clear when, on Monday, the Congressional Budget Office issued a Report on H.R. 2965, the Federal Prison Industries Competition in Contracting Act of 2005. As described by the Report:

The legislation would authorize the Attorney General to establish a new FPI [Federal Prison Industries] program in federal prisons that, subject to appropriation of the necessary amounts, would produce goods to be donated to nonprofit organizations instead of being offered for purchase to the federal government. In addition, FPI would be authorized to contract with nonprofit organizations and certain public entities for the use of inmate labor to provide charitable services. The bill would authorize the appropriation of $12 million for fiscal year 2008 and $48 million over the 2008-2011 period for these programs.

Section 10 of the bill permits programs to be created to furnish prison-made goods to non-profit or religious organizations that "provide goods or services to low-income individuals who would likely otherwise have difficulty purchasing such products or services in the commercial market." Eligible organizations can suggest programs to FPI.

Section 10 more generally permits any religious (or other non-profit) organization that qualifies under Sections 501(c)(3) or 501(d) of the Internal Revenue Code to contract with the Inmate Work Training Administrator to employ inmates at below minimum wage rates. While there are various restrictions insuring that inmates will only provide non-profit services, and that inmates will not be discriminated against on the basis of religion (or on the basis of race, sex, national origin, disability or political belief), nothing in the bill appears to preclude using inmates to perform services that have religious content.

The bill has been approved by the House Judiciary Committee and will move to the full House for a vote.

Cert. Filed In Maine School Voucher Case

A petition for certiorari has been filed in the U.S. Supreme Court seeking review of the Maine Supreme Court's decision in Anderson v. Town of Durham, according to today's New York Sun. The decision upheld a state school voucher program for students from small towns with no high schools. Towns may pay for those students to attend a non-sectarian public or a private school, but they may not pay for attendance at religious parochial schools. (See prior posting.)

Required DNA Sample Does Not Violate Free Exercise Clause

A New York federal district court has rejected a free exercise challenge to the federal DNA Analysis Backlog Elimination Act. Kurt Kavoukian, on probation after serving a sentence for firearms violations, argued that requiring him to provide a DNA sample is an intrusion into his body prohibited by his religion. In United States v. Kavoukian, 2006 U.S. Dist. LEXIS 50014 (ND NY, July 20, 2006), the court found that the statute, designed to establish a federal DNA database to assist in the identification, arrest, and prosecution of criminals, is a permissible neutral law of general application.

White House Faith-Based Conference In Austin

Yesterday the White House hosted a Conference on Faith Based and Community Initiatives in Austin, Texas. Today's San Antonio Express-News reports on the conference. The article's lead is: "At the intersection of government and religion, Gov. Rick Perry sounded something like a preacher Tuesday as he touted public funds for faith-based and community groups helping the poor, the addicted and refugees."

Liberia Reassures Muslims On Wearing Of Veil

Liberia's Justice Minister Cllr. Frances Johnson-Morris reaffirmed the government's commitment to religious liberty, countering a controversial statement by Police Director Beatrice Munah Sieh who said that people of that faith would not be permitted to cover their faces while walking on the streets. AllAfrica.com reported yesterday that the Justice Minister assured Muslims that the government will protect the Islamic Community like any other religious group. She said Muslims will be allowed to dress in accordance with their religious beliefs. The Police Director's statement was made few days after masked robbers were arrested, and without an understanding of its legal implications.

More New Prisoner Cases

In Hardeman v. Stewart, (10th Cir., July 21, 2006), an inmate raised equal protection and free exercise claims, arguing that prison authorities had refused to recognize the Hebrew Israelites as a separate religion, and had denied him access to various requested religious items. The district court dismissed the claims because the Prison Litigation Reform Act precludes damages for non-physical harm, and any request for injunctive relief was moot because the inmate was transferred to a different facility. The Court of Appeals affirmed.

In Williams v. Bitner, (3d Cir., July 25, 2006), the Third Circuit Court of Appeals held that prison officials did not have qualified immunity in a claim for damages by a Muslim inmate who alleged that his First Amendment free exercise rights had been violated. Pennsylvania prison authorities had assigned Henry Williams to work as a cook in the prison kitchen. He was disciplined after he refused, on religious grounds, to help prepare a meal that contained pork.

In Scott v. Mecklenburg Correctional Center, 2006 U.S. Dist. LEXIS 49905 (WD Va., July 21, 2006), a Virginia state inmate challenged the prison's refusal to approve his participation in a Bible correspondence course in which he had previously enrolled. He also complained that he was not permitted to take his Bible into the recreation yard. A federal district court found that prison officials had a legitimate interest in restricting transient inmates' participation in long term correspondence courses. They also did not discriminate against plaintiff because no materials, secular or religious, are permitted in the recreation yard.

Native American Religious Concerns Cost Washington State $58M

In December 2004, the Washington State Department of Transportation stopped construction of a massive dry dock in Port Angeles, Washington, even though the state had already spent $58 million on it. At the time, the reason for the cancellation was said to be archeological concerns. The dock was located on the site of Tse-whit-zen, an important Klallam Indian village containing at least several hundred intact burials. (Background from History Link.org.) Now it appears that the real reason for ending construction was religious objections raised by the Lower Elwha Klallam tribe.

Washington's Peninsula Daily News yesterday reported that a letter to the auditor investigating the closing down of the project from Allyson Brooks, head of the state Department of Archaeology & Historic Preservation, revealed the true motivation of state officials. She wrote: "the underlying issue . . . is how we incorporate cultural values and religious beliefs into our decision-making processes in a manner that is fair, sensitive, constitutional and still results in a complete project.''

Over 350 bodies of tribal members were reburied after construction began, but the Klallam tribe wanted the remains returned to the Tse-whit-zen site. They believe their ancestors are angry that their remains were removed. Tribal members put red ochre below their eyes when they visit the site to ward off ancestors' anger, and they ceremonially wash with water containing snowberries when they leave so they will not take their ancestor's anger home.

High School Coach Wins Right To Join His Team's Prayers

In Newark, New Jersey today, East Brunswick High School football coach Marcus Borden won his federal civil rights suit in which he claimed the right to pray along with his team's players. The court rejected the high school's contention that the Establishment Clause was violated when coach Borden would silently bow his head and "take a knee'' while his players engaged in student-initiated, student-led, nonsectarian pre-game prayer. The Central Jersey Home News Tribune, reporting on the decision, quoted Borden's attorney, Ronald J. Riccio, who said that the decision "reaffirms that government can't be hostile to religion." The lawsuit was filed last November. (See prior posting.)

Promoters Of Baptist Affinity Fraud Convicted

Both today's Washington Post and today's Arizona Republic report that two former executives of the Baptist Foundation of Arizona were found guilty Monday on 3 counts of fraud and one count of knowingly conducting an illegal enterprise in what has been called the largest "affinity fraud" ever. More than 11,000 investors lost more than $550 million in total. The investors, many of them elderly, were encouraged to invest their money at promised high rates and at the same time "do the Lord's work," building Baptist churches and retirement homes. Defendants William Crotts and Thomas Grabinski, however, were acquitted of 23 counts of theft. The jury found that they did not personally profit from the Ponzi scheme. Instead they got in over their heads and then tried to cover it up. Defense attorneys had argued that the foundation could have been able to pay off investors if state regulators had not forced it to stop selling securities in 1999.

Loud Speakers On Bulgarian Mosque Challenged

In Sofia, Bulgaria, both mayor Boiko Borissov and the ultra-nationalist group Ataka have called for removal of the loudspeakers on the Banya Bashi mosque that are used to call the faithful to prayer. The mayor said that the volume of the loudspeakers has been turned down. He urged Christian and Muslim leaders to continue the Bulgarian tradition of peaceful co-existence. The Sofia Echo reports on this as well as on a pending case before Bulgaria’s Commission for Protection Against Discrimination involving two Muslim girls who were banned from wearing traditional Islamic headscarves in school.

Jerusalem Gay Pride Parade Cancelled Because Of Security Concerns

As reported previously, Orthodox Jewish, Muslim and conservative Christian leaders in Jerusalem have called for cancellation of the planned Aug. 10 GLBT World Pride Parade. To Be Publications reported yesterday that the fighting between Israel and Lebanon's Hezbollah has led to the fulfillment of those religious leaders' demands. Orthodox Jews threatened to stage massive counter-demonstrations to the GLBT parade. Jerusalem police had planned to bring in reinforcements from other cities to protect the marchers. Because of the new war with Hezbollah, not only are those reinforcements not available, but some members of Jerusalem's police force have been deployed outside of the city, closer to the war zones. World Pride organizers say they will hold an alternative event.

9th Circuit Issues New Opinions Denying Asylum To Chinese Christian

In Gu v. Gonzales, (9th Cir., July 21, 2006), the U.S. 9th Circuit Court of Appeals last week, by a 2-1 vote, upheld the findings of an Immigration Judge denying asylum to a Chinese citizen who claimed past persecution, and fear of future persecution, because of his distribution of Christian religious literature and his attending an unofficial "house church". In doing so, the court withdrew opinions issued in December 2005 reaching the same result (429 F.3d 1209), and substituted new opinions. [CORRECTED-- thanks to several readers.]

Italian Case Challenging Existence of Jesus Reportedly To Be Heard By European Court of Human Rights

Religion Clause reported last February that an Italian judge dismissed a suit against a priest in Viterbo, Italy. The suit charged that the priest's assertion that Jesus had lived violated Italian laws against deceit and impersonation. In March, an appeal in the case was filed with the European Court of Human Rights. (Text of Application to Court.) Today, the website of Luigi Cascioli, the plaintiff who brought the charges against the priest, reports that the European Court of Human Rights has agreed to hear the appeal. The case is Cascioli v. Italy, Case No.14910/06.

Public Schools Try To Accommodate Various Religious Holidays

Public schools and colleges around the country are increasingly being asked to accommodate the holiday observances of students from a wide variety of religious faiths. Some have not been responsive to the requests, but others have. From a school-wide holiday, to a ban on scheduling exams on particular days, to merely permitting a student to have an excused absence, at least some schools are seeking the correct balance, according to an Associated Press article last Friday. Earlier this month the New York state Legislature passed SB 7461 a bill that requires the state Department of Education to make a bona fide effort to schedule state mandated exams on days other than religious holidays. The bill was introduced after the decision by the Department of Education last January to begin statewide tests for third, fourth and fifth-graders on the Islamic holiday of Eid-ul-Adha.

Asatru In Prisons Poses Concerns

An AP story yesterday discusses the growing problems within American prisons posed by prisoners' practice of Asatru-- a pagan religion with roots in Viking mythology. Attention has been focused on the religion as Michael Lenz is scheduled to be executed in Virginia later this week. During an Asatru worship ceremony, Lenz thought that another inmate, Brent Parker, had committed blasphemy, and so he killed him to protect the honor of the gods. The religion is sometimes associated with beliefs in White supremacy, though that connection is disputed by most of its leaders. Britt Minshall, a Baltimore pastor who ministers to inmates, says that some white inmates who felt threatened by black prison gangs formed their own gangs and then found Asatru as a belief system to provide additional security.

New Yorker Article Features Role Of Christian Right In Ohio's '06 Elections

This week's New Yorker Magazine profiles the central role of the Christian religious right in this year's Ohio gubernatorial election. Republican candidate J. Kenneth Blackwell, whose political history is chronicled in the New Yorker piece, has strong appeal to conservative Christians. The article titled Holy Toledo: Ohio’s Gubernatorial Race Tests the Power of the Christian Right, also focuses on Pastor Rod Parsley's Reformation Ohio and Rev. Russell Johnson's Ohio Restoration Project.

Recent Law Review Articles

From SmartCILP:

Babek Rod Khadem,The Doctrine of Separation in Classical Islamic Jurisprudence, 4 UCLA Journal of Islamic & Near Eastern Law 95-142 (2004-2005).

Jed Kroncke, Jed, Substantive Irrationalities and Irrational Substantivities: The Flexible Orientalism of Islamic Law, 4 UCLA Journal of Islamic & Near Eastern Law 41-73 (2004-2005).

Caleb E. Mason, Faith, Harm, and Neutrality: Some Complexities of Free Exercise Law, 44 Duquesne University Law Review 225-273 (2006).

Symposium: Law and Religion, 8 University of Pennsylvania Journal of Constitutional Law 335-513 (2006):

Howard Lesnick, The Consciousness of Religion and the Consciousness of Law, With Some Implications for Dialogue;

Imad-ad-Dean Adman, American and Muslim Perspectives on Freedom of Religion;

Marie A. Failinger, Against Idols: The Court As a Symbol-Making or Rhetorical Institution;

Stephen M. Feldman, The Theory and Politics of First Amendment Protections: Why Does the Supreme Court Favor Free Expression Over Religious Freedom?

Kent Greenawalt, Common Sense About Original and Subsequent Understanding of the Religion Clauses.

Civil Rights Division Hiring Has Been Changing

An interesting article in this morning's Boston Globe reports that the Bush administration has quietly been changing hiring practices at the Justice Department's Civil Rights Division. Political appointees at the Justice Department have been given more authority in decisions on hiring of lawyers for the Division. Hiring committees made up of veteran career lawyers have been disbanded. Since this began in 2003, only 42% of new hires have civil rights organization experience. In the 2 years before that, 77% had such experience. Since 2003, new hires were more likely to have been members of the Federalist Society or members of the Republican National Lawyers Association. This has also led to a change in the kind of cases being brought by the Civil Rights Division. Fewer traditional voting rights and employment discrimination cases are being brought, while more reverse discrimination and religious discrimination cases alleging discrimination against Christians are being filed.

The Globe found that the law schools from which new hires graduated has also changed. More Southern and Midwestern law schools are now represented. Previously new hires tended to be from "elite" eastern law schools. The average US News & World Report ranking for the law school attended by successful applicants hired in 2001 and 2002 was 34, while the average law school rank dropped to 44 for those hired after 2003.

Defenders of the new policy say first that it tends to balance the liberal bias of former hires. Second, they say that while many hires now do not have a background with civil rights organizations, they often clerked for federal judges where they obtained substantial constitutional law experience.

Indonesian Editor To Face Trial On Muhammad Cartoons

In Indonesia, the editor of the online newspaper Rakyat Merdeka has been released from prison, but he will still be required to stand trial for posting cartoons of the Prophet Muhammad on his newspaper website earlier this year. Friday's Sydney Morning Herald reported that the Indonesian editor, who posted the cartoons while reporting on the controversy over the cartoons' first appearance in Denmark, was charged with two counts of "inciting animosity and hatred" towards Islam. He faces a possible maximum sentence of 5 years in prison. [Thanks to Jurist for the information.]

Washington Pharmacy Board Rethinking Proposed Rule

The Washington State Board of Pharmacy has postponed until August 31 a vote on controversial new proposed rules that would permit pharmacists to refuse to fill prescriptions for personally held moral reasons. Saturday’s Seattle Times says that the Board may be considering changes in its proposal. Gov. Christine Gregoire and women's advocates have criticized the proposal because it could hinder patient access to emergency contraceptives.

Officials' Motives Found Relevant To RLUIPA Claim

In Denver First Church of the Nazarene v. Cherry Hills Village, 2006 U.S. Dist. LEXIS 49483 (D. Colo., July 19, 2006), a Colorado federal district court denied a motion filed by the city of Cherry Hills to prevent plaintiff, a church, from taking the deposition of various members of City Council, the Planning and Zoning Commission and the Board of Adjustment. Denver First Church of the Nazarene brought suit under RLUIPA challenging the city’s refusal to grant its applications to expand its current church building, and to rezone certain lots so the church could add parking. The court, rejecting various claims of privilege, found that depositions were appropriate because the motives of city officials are relevant to plaintiff’s claims under RLUIPA.

Arizona City Debates New Church Zoning Rules

In Scottsdale, Arizona, the leaders of 50 churches have mobilized to oppose proposals from the Scottsdale Planning Commission to require a conditional use permit for the building of new churches, or major expansion of current ones, in single family residential areas. Yesterday's East Valley Tribune reports the Commission’s proposal, that will be discussed at an August 23 public meeting, would apply not just to houses of worship but also to private schools, colleges, universities, community buildings and private recreational uses. Scottsdale residents are concerned about increasing noise, traffic and parking problems especially from the proliferation of large church campuses. Howard Myers, president of the Desert Foothills Property Owners Association complained that operations of some large churches have extended to longer hours and go on every day of the week as they rent or give use of church premises for many programs and permit installation of cell phone towers on their property.

Funeral Protesters Challenge Missouri Ban

Rev. Fred Phelps and his followers from Kansas City’s Westboro Baptist Church have outraged many by picketing the funerals of Iraq and Afghanistan war veterans claiming that U.S. tolerance of homosexuality and other sinful activity is causing the deaths of Americans in those wars. (See prior related posting.) In response, Missouri, a number of other states, and the federal government have all enacted laws prohibiting picketing a location where a funeral is being held. Now, on behalf of Phelps, the ACLU of Kansas and Western Missouri has filed suit claiming that the anti-picketing law violates the First Amendment free speech and free exercise rights of Phelps and his religious followers. Today’s Washington Post reports on the lawsuit that was filed yesterday in federal court in Jefferson City, Missouri. The plaintiffs argue that Missouri’s statute unconstitutionally regulates speech on the basis of its content.

Rastafarian Prison Employee's Religion Claims Move Ahead

In Booth v. Maryland Department of Public Safety & Correctional Services, 2006 U.S. Dist. LEXIS 49313 (D. Md., July 7, 2006), a Maryland federal court refused to dismiss state breach of contract and state constitutional claims by a Rastafarian employee of the Maryland prison system who was first demoted and then fired for refusing to remove his dreadlocks. However plaintiff’s federal claim against a prison warden was dismissed on the ground that the warden enjoyed qualified immunity.

NJ Homeowner Seeks Religious Tenants-- May Violate Law

In New Jersey, a homeowner’s religious freedom claim could fail because it falls between the cracks of the state law’s exclusion for renting out part of an owner-occupied home. Yesterday’s Morris County Daily Record reports that homeowner Joe Fabrics requires the four tenants in his New Brunswick, NJ property to sign a lease that informs them that "This is a Christian household" and "If you hate God, don’t move in". The director of New Jersey’s Division of Human Rights says that this could be illegal religious discrimination. Fabrics owns a two-family home. He occupies it as a residence and also rents to four other tenants. New Jersey’s Law Against Discrimination, Sec. 10:5-5(n) excludes from coverage "the rental (1) of a single apartment … in a two-family dwelling, the other occupancy unit of which is occupied by the owner as a residence; or (2) of a room or rooms to another person or persons by the owner … of a one-family dwelling occupied by the owner … as a residence at the time of such rental."

Fabrics, who says that his home contains two religious statues that weep holy tears, says that if after he makes his feelings clear, someone who does not believe in God insists on moving in, he will let them do so.

Opinion In Hollywood, FL. Synagogue Case Finding Zoning Regs Vague

Religion Clause has included numerous postings on the litigation involving alleged discrimination against a Hollywood, Florida synagogue stemming from the city’s removal of a special zoning exception that it had previously granted the Orthodox Jewish Chabad group. Negotiations toward a settlement in the case were encouraged by an announcement in June by Judge Joan A. Lenard that she planned to rule that the city’s zoning ordinance was unconstitutionally vague. Her formal decision finding that to be the case has now become available. In Hollywood Community Synagogue, Inc. v. City of Hollywood, Florida, 2006 U.S. Dist. LEXIS 49491 (SD Fla., June 24, 2006), the court held that the directions given to the Development Review Board by the zoning statute are not sufficiently "precise and objective" and could lend themselves to covert discrimination against houses of worship under the guise of "compatibility" or other intangible considerations.

The court ordered that Hollywood Community Synagogue be granted the special exception that it formerly had, conditioned only on certain specific conditions regarding soundproofing and trash. It ordered that the city promptly enact a new Special Exception ordinance for places of worship with narrow, objective and definite standards to guide city officials. Finally it ordered that the issue of damages be placed before a jury.

This Week's Prisoner Free Exercise Decisions

In Kretchmar v. Beard, 2006 U.S. Dist. LEXIS 49530 (ED Pa., July 18, 2006), a Pennsylvania federal court rejected the Free Exercise and RLUIPA claims filed by a Reform Jewish prisoner who argued that he should have been provided with a Kosher diet consisting of a rotating menu and two hot meals per day instead of the repetitive and cold Kosher diet that was given to him.

In Buchanan v. Burbury, 2006 U.S. Dist. LEXIS 48244 (ND Ohio, July 17, 2006), an Ohio federal district court granted a preliminary injunction in a RLUIPA case brought by an inmate who was an adherent of the Yahweh's New Covenant Assembly, a Sacred Name Sabbatarian faith group. The court ordered that plaintiff be provided with a kosher diet, he be excused from work on the Sabbath and his religion’s seven holy days, and that the group be given the opportunity to worship under the same requirements as other groups, which might require that it be removed from the prison’s Protestant catchment and placed into its own separate catchment.

Survey Of Religious Freedom In Africa

The international Catholic charity Aid To The Church In Need has published a report on the state of religious freedom in African countries. Zenit has published the report in three parts— here are the links 1, 2, 3.

Hate Crimes Still In The News

Hate crimes continue to make the news. In California, new data shows that hate crimes were at a new low in 2005, down 4.5% from the year before. (San Francisco Chronicle.) However in Lewiston, Maine, state prosecutors have filed charges of desecrating of a place of worship, a misdemeanor, against Brent Matthews. He is charged with rolling a frozen pig's head into a mosque in Lewiston on July 3 while 26 men prayed. Yesterday, state Attorney General Steven Rowe filed a civil lawsuit against Matthews alleging that he was motivated by bias based on race, color, ancestry, national origin and religion. The suit asks the court to bar Matthews from having contact with the mosque or its members and to order him to comply with the state's anti-discrimination law. Mosque leaders hope that federal hate crime charges will also be brought. (Boston Globe.)

Vodou Practitioner Gets Light Sentence

The Miami, Florida Herald reports that Myrlene Severe was sentenced in federal court today to two years probation and a $1000 fine for illegally storing human remains. The woman, a practitioner of Vodou, brought a skull, with strands of black curly hair, in her luggage on a flight back from Haiti. It was nestled in a cotton rice bag along with a banana leaf, dirt, small stones and a rusty iron nail. Severe believed that the skull would protect her. She did not know she was violating the law when she brought the skull in as a part of her religious beliefs. Originally more serious charges were filed against her, but they were subsequently reduced to a misdemeanor charge. (See prior posting).

New Scholarly Articles Posted Online

From Bepress:
Kathleen A. Brady, Religious Group Autonomy: Further Reflections About What Is At Stake (July 1, 2006).

From SSRN:
Richard W. Garnett IV, The Freedom of the Church , forthcoming in Journal of Catholic Social Thought, Vol. 4 (2007) .

Joel A. Nichols, Dual Lenses: Using Theology and Human Rights to Evaluate China's 2005 Regulations on Religion, forthcoming in Pepperdine Law Review, Vol 34 (2006). [Thanks to Legal Theory blog.]

Apparent New Mexican President May Bring Changes In Church-State Policy

An article from McClatchy Newspapers today reports that unless Mexico's Federal Electoral Tribunal overturns the disputed July 2 presidential election, Filepe Calderon will be the first Mexican president out of a tradition of conservative Catholicism that gave rise to the Cristero guerrilla movement. That movement, to which Calderon's father belonged, opposed Mexico's anti-clerical policies 80 years ago. The article traces the apparent president's deeply religious background and the uncertainties that this poses for a country that has had a strong tradition of church-state separation.

Some Kosher Food Laws Problematic For Conservative Rabbis

Ten states, including California (Cal Pen Code § 383b) and Massachusetts (ALM GL ch. 94, § 156), have statutes that make it fraudulent to sell meat as "kosher" unless the product complies with Orthodox Jewish religious requirements. Today's Forward reports that this language is creating problems as Conservative Jewish rabbis are pressing for stores to sell kosher meat that does not meet the higher "glatt Kosher" standard, in order to reduce costs to consumers.

Preliminary Injunction Denied In City Incentives For Baptist Convention

As previously reported on Religion Clause, in June Americans United for Separation of Church and State sued the city of Baltimore in federal court over economic development incentives it granted to the National Baptist Convention to attract its annual convention to Baltimore. The full opinion denying a preliminary injunction has now become available. The case is Cheryl Person v. Mayor and City Council of Baltimore, 2006 U.S. Dist. LEXIS 48899 (D. Md., June 20, 2006).

The city agreed to discount the price of its arena by $ 195,000, provide up to $100,000 for transportation costs, and provide $5,000 to feed hungry people in Baltimore at a pre-convention event involving representatives of the national convention. The court previously ordered that participants in the Feed the Hungry Event could not engage in religious solicitation or distribute religious materials as part of that city-funded event. With that safeguard in place, the court held that the incentives granted by Baltimore did not violate the Establishment Clause.

Interview With China's Religious Affairs Head

Ye Xiaowen, director of China's State Administration of Religious Affairs, has given his first press interview since he took office ten years ago. Xinhua today reports on the interview. Ye emphasized that the country will channel religious groups to play an active role in the country's social and economic construction. The government will guide religions to explain their tenets in ways that are in line with the requirements of the development of the society. He said: ""There are a great deal of useful concepts, like peace, non-violence, harmony and balanced development, in Chinese religions, especially traditional ones, which can help advocate environmental protection and promote peace."

Afghanistan To Re-Establish "Vice and Virtue" Department

The Middle East Times reports today that Afghanistan's government has defended its proposal to re-establish a Department for the Promotion of Virtue and Prevention of Vice, despite the abuses of a similar group which acted as religious police when Afghanistan was under Taliban rule. Unlike its predecessor, the new department will have no authority to patrol the streets looking for violators of Islamic law. Instead, it will use mosques and the media to encourage virtues such as prayer, charity, and respect of elders and parents, and to discourage "sins" such as adultery, murder, theft, and using alcohol. The proposal has been approved by the cabinet and will go to Parliament later this month. The government says the move is necessary to counter extremist opposition to the government that argues the country has been invaded by "infidels"-- pointing to the lack of a vice and virtue department as evidence.

Property Dispute Between New York Episcopal Parish and Diocese

In another of the growing number of disputes over ownership of church property, today's Syracuse (NY) Post-Standard reports that the Episcopal Diocese of Central New York filed a lawsuit Wednesday against St. Andrew's Church in Syracuse, asking a state trial court to grant the diocese a restraining order to prevent the parish from selling church real estate. In February, the parish which objects to positions of the diocese such as Bishop Gladstone "Skip" Adams' support of the ordination of a gay bishop, filed an amendment to its certificate of incorporation requesting that ecclesiastic oversight move from Adams to Archbishop Emmanuel Kolini, head of Anglican Church in Rwanda and of Anglican Mission in America. The diocese claims that it, and not the parish, owns the church's real estate.

Cert. Filed In California Sea Scouts Case

The Pacific Legal Foundation has announced that on July 11 it filed a petition for certiorari (full text) to the U.S. Supreme Court in Evans v. City of Berkeley. The appeal is from a March 2006 decision of the California Supreme Court in which it upheld the right of Berkeley to suspend the Sea Scouts' (an affiliate of the Boy Scouts) free use of a berth in the city's marina after the scout group refused to confirm that it would not discriminate against gays or atheists. (See prior posting.)

Article On Court-Stripping Legislation

Beginning with a reference to yesterday's passage by the House of Representatives of a bill to remove federal court jurisdiction over constitutional challenges to the Pledge of Allegiance (see prior posting), today's Indianapolis Star carries an interesting article on the history of "court-stripping" legislation.

Atheists Demand Apology For Army General's Remarks

American Atheists yesterday issued a press release demanding an apology from officials for remarks made by Lt. Army Gen. H. Steven Blum during a speech at the NAACPs Annual Armed Services and Veterans Affairs Awards Dinner on July 18. Blum, who is Chief of the National Guard Bureau, lumped atheists and agnostics together with bigots in one line of his speech in which he otherwise praised diversity in the armed forces. Blum said: "Agnostics, atheists and bigots suddenly lose all that when their life is on the line. Something that they lived with their whole life believing gets thrown out the door, and they grasp the comrade next them, and they don't care what color their skin is, and they don't care where they pray...." American Atheists President Ellen Johnson said: "Why is he singling out the millions of Americans who simply have doubts about religion or do not believe in religious teachings, and then comparing this group to 'bigots'?" The American Forces Press Service yesterday quoted extensive excerpts from Blum's speech.

Attorney Protests IRS Church Audit Procedures

BNA's Daily Report for Executives [subscription required] this week reported on a July 17 letter to Internal Revenue Service Commissioner Mark Everson from attorney Marcus Owens who says that the IRS is acting illegally in promulgating a new policy on who should determine when a tax audit of a church should be instituted. A May 9 IRS issued Chief Counsel Advice Memoranda 200623061[LEXIS link] without an opportunity for public comment. It formalized delegation for determining when a church should be audited to the Director of Exempt Organization Examinations. Owens said that in a recently released memorandum dated March 31, 2005, the Director of EO Examinations made an explicit delegation of the "reasonable belief" decision even lower within the IRS as part of the procedures for the IRS's Political Intervention Project. Owens said this is a "clear violation" of Internal Revenue Code Section 7611, which provides that an appropriate "high-level Treasury Department official must reasonably believe (on the basis of facts and circumstances) that a church may not be tax-exempt." BNA makes the full text of the letter available to subscribers.

Saudis Granted Waiver On Sanctions-- Progress On Religious Freedom Cited

The Washington Post reported yesterday that the United States has found that Saudi Arabia has made enough progress in improving religious tolerance that the U.S. is extending a waiver of sanctions that would otherwise have been called for under the International Religious Freedom Act. The waiver was originally granted in 2004 after the State Department first classified Saudi Arabia as a "country of particular concern", a designation that was continued in 2006. (See prior posting.) The State Department's release on the briefing to Congress by Ambassador John Hanford said that the Saudis are pursuing a number of policies to promote greater religious freedom and tolerance:

These include policies designed to halt the dissemination of intolerant literature and extremist ideology, both within Saudi Arabia and around the world, to protect the right to private worship, and to curb harassment of religious practice. For example, the Saudi Government is conducting a comprehensive revision of textbooks and educational curricula to weed out disparaging remarks toward religious groups, a process that will be completed in one to two years. The Saudi Government is also retraining teachers and the religious police to ensure that the rights of Muslims and non-Muslims are protected and to promote tolerance and combat extremism. The Saudi Government has also created a Human Rights Commission to address the full range of human rights complaints.

First Amendment Does Not Require Accommodation Of Job Applicant's Beliefs

In Filinovich v. Claar, 2006 U.S. Dist. LEXIS 48341 (ND Ill., July 14, 2006), an Illinois federal district court applied the June 2006 holding by the 10th Circuit in Shrum v. Coweta (see prior posting) to dismiss a Free Exercise claim by Alice Filinovich who was applying for the position of Finance Director with the Village of Bolinbrook, IL. Plaintiff, a Seventh Day Adventist, claimed that, even though she was the top candidate, she was not hired by the village because her religious beliefs would not permit her to attend required quarterly budget workshops held on Saturdays. The court held that so long as the village had a legitimate reason for the neutral, generally applicable requirement of attendance at Saturday meetings, for purposes of the First Amendment-- as opposed to Title VII-- there was no requirement that the village attempt to accommodate Filinovich's religious practices. The court said that the 7th Circuit, whose decisions control it, had reached the same conclusion as Shrum in its 1991 decision in Ryan v. U.S. Department of Justice, 950 F.2d 458 [LEXIS link].

New Jersey Chief Justice Nixes Fugitive Safe Surrender Program

Federal officials have been blocked from instituting a program known as Fugitive Safe Surrender in Camden, New Jersey by church-state objections from New Jersey Chief Justice Deborah T. Poritz . The Philadelphia Inquirer reported yesterday that the program, which originated in Cleveland, grants funds to cities to get low-level fugitives into the criminal justice system without police having to confront them on the streets. Instead, the wanted criminals surrender at a church, where fugitives feel safe. Also the church community helps to spread the word about the program. The plans were to use Camden's Antioch Baptist Church.

In Cleveland, fugitives were greeted by volunteers who handed out water and pretzels, while sheriff's deputies ran their names through computerized databases. Then they met with a judge and a public defender in the church's library, and generally released on bond. The New Jersey Supreme Court, however, is concerned about court procedures taking place in a religious facility. It is also concerned that it would appear that the court was working on behalf of the prosecutor and was not neutral. The court offered to have a judge available at the courthouse to process the fugitives, but U.S. Marshall James Plousis said that is inconsistent with the underlying concept of the program.

GAO Report Reviews Faith-Based Initiative

The New York Times today carries an article about a Government Accountability Office Report issued last month on the Bush administration's faith-based initiative. The GAO did not find evidence of a widespread diversion of government money to religious activities, but in looking at 10 government programs, the GAO found that only four federal program offices gave an explicit statement to religious organizations about protecting the religious liberties of the people they serve.

Titled Faith-Based and Community Initiative: Improvements in Monitoring Grantees and Measuring Performance Could Enhance Accountability, the full report has just been posted on the GAO's website. Here is part of the Report Abstract:

Since 2001, federal agencies have awarded over $500 million through new grant programs to provide training and technical assistance to faith-based and community organizations and to increase the participation of these organizations in providing federally funded social services.... Most of the agencies provided grantees with an explicit statement on the safeguard prohibiting the use of direct federal funds for inherently religious activities. If these activities are offered, they must be offered separately in time or location from services provided with direct federal funds and must be voluntary for the beneficiary. However, we found that Justice's regulation and guidance related to these activities is unclear for its correctional programs. We also found that only four programs provided a statement on the rights of program beneficiaries and only three provided information on permissible hiring by FBOs.

While officials in all 26 FBOs [Faith Based Organizations] that we visited said that they understood that federal funds cannot be used for inherently religious activities, a few FBOs described activities that appeared to violate this safeguard. Four of the 13 FBOs that provided voluntary religious activities did not separate in time or location some religious activities from federally funded program services....

[I]t is unclear whether the data reported on grants awarded to FBOs provide policymakers with a sound basis to assess the progress of agencies in meeting the initiative's long-term goal of greater participation of faith-based and community organizations. Moreover, little information is available to assess progress toward another long-term goal of improving participant outcomes because outcome-based evaluations for many pilot programs have not begun.

Americans United Criticizes Upcoming House Vote On 2 Bills

Today a vote is scheduled in the House of Representatives on the Pledge Protection Act of 2005 (H.R. 2389) that would prevent federal courts from hearing challenges to the constitutionality of the Pledge of Allegiance. A vote is also scheduled on H.R. 5683 that would transfer ownership of the Mt. Soledad Cross in California to the federal government. Yesterday, Americans United for Separation of Church and State issued a statement criticizing these bills. AU executive directory Barry W. Lynn said: "The leaders of the House are shamelessly pandering to their Religious Right base. The forthcoming votes on these measures hit a new low for election-year posturing."

UPDATE: On Wednesday afternoon, the House of Representatives passed the Pledge Protection Act by a vote of 260-167. Here is the roll call vote. It now goes to the Senate where the Associated Press reports that its fate is uncertain. On Wednesday afternoon, the House also passed the bill authorizing the federal government to take title to the Soledad Veterans Memorial. The roll call vote was 349 yes; 74 no; 3 present. (10news.com report.)

Church Homeless Shelter Housing Code Trial Will Begin In Florida

The South Florida Sun-Sentinel this morning reports that a jury trial is scheduled to begin July 31 in Palm Beach County, Florida's efforts to collect $30,000 in code enforcement fines from Westgate Tabernacle Church. However the Church has filed its own counter-suit claiming infringement of its free exercise rights. Westgate runs a homeless shelter that, unlike other county agencies, takes almost anyone as a resident, subject to only a few rules-- no drugs, look for work and attend services. Because of this, police bring people to the shelter every day, at the same time that the county is attempting to get it to relocate outside a residential neighborhood.

Recent Prisoner Decisions On Claims By Muslim and Atheist

In Hamdan v. Copes, 2006 U.S. Dist. LEXIS 46765 (WD La., May 19, 2006), the court rejected a prisoner's claim that Muslim prisoniers at South Louisiana Correctional Center were denied the right to attend Friday Ju'mah services on a regular basis.

In Kaufman v. Frank, 2006 U.S. Dist. LEXIS 47840 (WD Wis., July 13, 2006), a state prison inmate who was an atheist claimed that his rights under the First Amendment and RLUIPA were violated by: (1) references to God in the Wisconsin Constitution; (2) a state statute granting inmates access to Bibles; (3) prohibitions on sex offenders changing their names; (4) the prison's refusal to allow him to possess a silver circle emblem representing Atheist beliefs; (5) its refusal to authorize study groups for atheist and agnostic inmates; and (6) its refusal to make donated atheist literature available in the prison library. The court permitted plaintiff to proceed only as to claims that the Establishment Clause was violated by the prison's making Christian literature, but not literature about atheism available, and its excluding free non-religious items and publications while permitting other inmates to receive free religious items and publications.

Retired Professor Wants Anti-Evolution Issue On Oshkosh Wisconsin Ballot

The Oshkosh,Wisconsin Northwestern reports today on a retired University of Wisconsin-Oshkosh physics professor's petition drive to get an advisory referendum on the November ballot on the teaching of evolution in the public schools. Sandra Gade says that "the way evolution is being taught is antagonistic to students' religious beliefs. Students are told that it is a scientifically established fact that evolution, a purely natural process made all living things." She wants to require teaching of facts that discredit as well as those that support evolution. Despite Glade's efforts, state law has no provision for school boards to place an advisory referendum on the ballot.

Evangelist Argues Lack of Jurisdiction After Indictment For Tax Fraud

In Pensacola, Florida on Monday, evangelist Kent Hovind pled not guilty to a 58-count federal indictment charging him with tax fraud, avoiding financial reporting requirements and impeding an IRS investigation. Today's Pensacola News Journal reports on the rather outlandish claims of immunity made by Hovind who owns Dinosaur Adventure Land, a creationist theme park. Hovind claims that the federal government has no jurisdiction over him, and when pressed in court to enter a plea Hovind said he wished to enter a plea of "subornation of false muster."

Hovind is accused of paying employees of his Creation Science Ministry in cash and calling them missionaries to avoid withholding payroll and FICA taxes. His wife is also charged. For years Hovind has claimed that he is employed by God and has no income or property because everything he owns belongs to God. Hovind believes that man and dinosaurs inhabited the earth at the same time and has offered a $250,000 reward to anyone who can furnish satisfactory proof of evolution.

Muslim Group Claims Zoning Discrimination

In Wayne, New Jersey, according to today's Star-Ledger the Albanian Associated Fund, a Muslim organization, has sued the township claiming it has been discriminated against in its application to build a mosque on an 11-acre site it owns. The federal court suit filed yesterday attempts to stop the township from condemning the land for open space use, claiming violations of constitutional rights and of RLUIPA. The suit claims that Wayne's planning board has given in to anti-Muslim sentiment and for 3 1/2 years has forced the group to take application steps not required of others.

Arkansas Supreme Court Dismisses Claims Against Parochial School As Involving Religious Doctrine

In Calvary Christian School Inc. v. Huffstutler, (Ark. Sup. Ct., June 29, 2006). the Arkansas Supreme Court held that it lacked jurisdiction over most of the claims brought by the parents of a parochial school student who was "disenrolled" from the school after he and his parents complained about a video camera that they discovered was hidden in the vetilation system of a school classroom that was also used as a dressing room for school events. In order to keep their son enrolled in school, his parents signed an agreement to support the policies and administration of the school and not to make any negative comments that could possibly destroy the ministry and unity of the school. However subsequently the parents made comments that violated the agreement, and the student was dismissed. The majority agreed with Calvary Christian School that the dismissal was based on failure to comply with school policies that are based in Matthew 18 principles. This made it a theological dispute over which the court could not exercise jurisdiction under First Amendment principles. The majority also dismissed one of the claims because there was no evidence that the camera had ever been used to film anything. Three justices dissented, each as to different aspects of the majority's opinion.

Religious Objections Impede Prosecution Of US Soldiers In Iraq Murder Case

U.S. authorities are preparing their case against five soldiers from the 101st Airborne Division who are accused of raping and murdering 14-year old Abeer al-Janabi near the town of Mahmoudiya in Iraq on March 12. A sixth soldier is accused of failing to report the crime. Those still on active duty face an Article 32 hearing, a proceeding similar to a grand jury. However the prosecution is being impeded by objections from the girl's family to the exhumation of her body. The Associated Press today reports that al-Janabi's relatives have refused to allow her body to be exhumed after objections from a Muslim cleric. Islamic law views exhumations as desecration of the dead. Iraqi Prime Minister Nouri al-Maliki argues that Iraqi courts should try cases of abuse by American soldiers and has called for a review of the agreement giving foreign troops immunity from Iraqi prosecution.

Colorado City Will Limit Display To Christmas Trees

Fort Collins, Colorado city council last Tuesday voted to continue to display only Christmas trees during the 2006 holiday season, rejecting requests to also include a menorah in the December holiday display. The Coloradoan today quotes Council Member Kurt Kastein: "I'm not afraid to say it's Christmas. And I have no problem defending a Christmas tree in the public display." The city's Human Relations Commission said that limiting displays to Christmas trees would be exclusionary. It recommended that city property be made available year-round for displays by private groups that first obtain a permit, and had offered to create a Holiday Display Community Task Force.

Suits Against Las Cruces For Using Crosses In City Logo Pending

The Las Cruces Sun-News yesterday reported on developments in a federal lawsuit that had been filed last September challenging the presence of three crosses in the official emblem of the city of Las Cruces, New Mexico. (See prior posting.) The question is whether the city is violating the establishment clause in spending public funds to put the crosses on city logos and city buildings. In the latest development, plaintiffs are challenging a report by New Mexico State University history professor Jon Hunner, who was selected to provide the court with a history of the city's symbol. Plaintiff Paul Weinbaum says the report is tainted by a conflict of interest because Hunner was also providing a similar report to the city's Convention and Visitors Bureau. The city has spent $16,000 in legal fees so far. Trial in the case is set for Nov. 27. Another case against the Las Cruces Public Schools for its use of crosses on its vehicles and logos is also pending.

Minister In Congress Opposes Amendment To Ban Gay Marriage

Emanuel Cleaver (D-MO), a United Methodist Minister in Kansas City, is the only member of the U.S. House of Representatives who is a practicing clergyman. Today's Charlotte Observer reports that Cleaver is strongly opposed to the proposed constitutional amendment to define marriage as between a man and a woman. The House is expected to vote on the amendment this week. Cleaver says that government should not meddle in a religious sacrament, arguing: "Marriage is a spiritual issue. That's not for the Congress to dictate, no more than it's appropriate for Congress to dictate how much bread should be used in communion. Communion is a sacrament. Marriage is a sacrament. Why not just put all the sacraments in the Constitution?"

US Senate Urges Russia To Protect Unregistered Religious Groups

On Friday, the U.S. Senate passed by unanimous consent S. Res. 500. The Resolution expresses the sense of Congress that the Russian Federation should fully protect the freedoms of all religious communities, whether registered or not, as required by the Russian Constitution and international standards. In March, the House of Representatives passed a similar resolution (H. Con Res. 190). (See prior posting.)

Church Files RLUIPA Challenge In Southfield Michigan

Today's Detroit Free Press reports that Lighthouse Community Church of God is suing the City of Southfield, Michigan in federal court for the right to use an office building it bought in 2004 for church services. Two churches had previously used the same space. The city cited the Church for using the building without an occupancy permit, and that citation was upheld by a state court judge. The Church says that the city has prevented it from adding parking so it can comply with occupancy requirements. Jury selection in the case begins August 7. The case may be the first jury trial in Michigan of a case under RLUIPA. The city has moved to dismiss the case, arguing that RLUIPA was not intended to permit churches to bypass city zoning laws. Church attorney Daniel Dalton says the city wants to let a development firm take over the disputed site in order to build housing.

Recent Law Review Articles Of Interest

Recent law review articles from SmartCILP:

Susan J. Becker, Many Are Chilled, But Few Are Frozen: How Transformative Learning in Popular Culture, Christianity, and Science Will Lead To the Eventual Demise of Legally Sanctioned Discrimination Against Sexual Minorities in the United States, 14 American University Journal of Gender Social Policy & the Law 177-252 (2006).

David S. Caudill, Arthur M. Goldberg Family Chair Lecture: Augustine and Calvin: Post-Modernism and Pluralism, 51 Villanova Law Review 299-309 (2006).

Jennifer L. Monk & Robert H. Tyler, The Application of Prior Restraint: An Alternative Doctrine for Religious Land Use Cases, 37 University of Toledo Law Review 747-779 (2006).

Gregory C. Pingree, Rhetorical Holy War: Polygamy, Homosexuallity, and the Paradox of Community and Autonomy.,14 American University Journal of Gender Social Policy & the Law 313-383 (2006).

Routine Judicial Mix-Up Gets Attention Because Of Religious Content

Last month in Honolulu, Hawaii defendant Junior Stowers was acquitted on a misdemeanor charge of abusing his 15 year old son after the boy said it was really his brother who hit him. Just before the jury returned, Circuit Judge Patrick Border issued a standard warning to both lawyers in the case that he did not want any outbursts of emotion in the court room when the verdict was announced. However, Stowers' public defender lawyer did not have time to tell Stowers of the order, and when the jury announced his acquittal, Stowers raised his hands and exclaimed, "Thank you, Jesus!" The judge cited Stowers for contempt, and he was held for six hours until at a hearing the judge realized that Stowers did not know of his order, and released him. The AP story on this rather routine mix up has been carried in media around the world because of the religious expression involved in Stowers' emotional outburst.

Conscientious Objection By Medical Providers Creates Victims

Sunday’s Washington Post carries a story on the personal agony of individuals who have been turned away by health care workers whose religious beliefs lead them to refuse to provide treatment or services. Included are accounts of a lesbian woman who was turned away by a fertility clinic and a woman in Denton, Texas whose pharmacist refused to dispense her the morning-after pill after she was raped on a date. In another case, a doctor refused to send a woman’s records to a clinic where she sought an abortion after discovering the fetus she was carrying had severe deformities. And in Encinitas, Calif., a family practitioner refused a routine physical to a patient who needed it to adopt a baby from Mexico. The doctor said he objected to a single woman's adopting a child.

Brother of FLDS Leader Gets Lenient Sentence

On Friday, Seth Steed Jeffs, younger brother of Fundamentalist Church of Latter Day Saints head Warren Jeffs, was placed on three years’ probation and fined $2,500 for helping fugitive Warren Jeffs evade capture. Today’s Salt Lake Tribune reports on the sentencing. Warren Jeffs is wanted on various charges growing out of the polygamous practices of the FLDS Church. Seth Jeffs could have received a much harsher sentence for harboring a federal fugitive. However, federal judge Robert Blackburn said he found Seth Jeffs "credibly contrite", and said he would not visit the sins of his fugitive brother on him. While Seth Jeffs has promised to distance himself from the FLDS, he still has one legal wife and one “plural” wife that he married in a religious ceremony.

Mosque Zoning Decision Unleashes Anti-Islamic Feelings

In Pompano Beach, Florida, the zoning commission’s approval for the Islamic Center of South Florida to build a new mosque has led to ugly confrontations with several black ministers and civic leaders. Rev. O’Neal Dozier, pastor of Worldwide Christian Center near the mosque site, is leading the protests that began at the zoning commission’s June meeting. According to yesterday’s St. Petersburg Times, Dozier says he will file suit if the commission does not rescind its approval of the mosque.

At the June commission meeting, Dozier called Muslims "dangerous," said they were "terrorists." Another black minister warned they would "try to convert young black men." The protest continued at last Tuesday’s commission meeting. Dozier, a former NFL player with a law degree who has been prominent in Republican politics in Florida arrived at City Hall with a "church security force" to protect him from "terrorists." Speaking at the meeting, he said "People in the neighborhood feel less safe knowing Muslims are invading."

Dozier is supported by two other black ministers and four local Jewish supporters, led by Joe Kaufman, founder of "Citizens Against Hate" and the "Republican Jewish Coalition of South Florida." However the Muslim group’s zoning request is backed by Willie Larson, head of Broward County’s NAACP chapter; Andrew Louis, head of the county’s Democratic Black Caucus; and a number of elderly Jewish residents of the Holiday Springs Condominiums who were aided by members of another local mosque after Hurricane Wilma hit last year.

Meanwhile last Monday Florida Governor Jeb Bush, upset with Dozier’s statements, asked him to resign from the judicial nominating committee to which Bush had previously appointed him. Dozier did so, saying “I’m saddened but I’m not giving up the fight.” (See prior posting on Rev. Dozier.)

Kyrzyg Officials Criticized For Welcome To Unification Church

In Kyrgyzstan, the Forum of Young Politicians last month issued a statement criticizing the president and prime minister for their welcome of Unification Church officials to the country. IWPR today reports many observers argue that officials are breaching the separation of church and state in the favoritism shown to the Unification Church's founder Rev. Sun Nyung Moon and his associates. Hak Ja Han, the wife Rev. Moon, arrived in Kyrgyzstan on June 18, and was hosted by leading politicians and academics at a formal ceremony shown on national television. At the event, Han gave certificates conferring the honorary title of 'ambassador of peace' to a district government chief in Bishkek, the head of the Kyrgyz committee of UNESCO, and four university and college rectors. Both Muslim and Orthodox Christian officials in Kyrgyzstan are concerned about the number of converts that outside proselytizing groups are attracting

Evolution Is Issue In August Kansas Primaries

The National Center for Science Education reports today that the issue of teaching evolution remains important in the upcoming August 1 Kansas primaries. Last year, the state school board adopted anti-evolution teaching standards by a vote of 6-4. However, particularly in the primaries for school board, opponents of that decision are pitted against supporters. Major newspapers have focused on candidates' views on science education. It has also become an issue in the gubernatorial primary as a Kansas newspaper asked all seven candidates in the Republican primary a question about teaching intelligent design as part of a candidate questionnaire.

Senate Resolution Marks Upcoming 50th Anniversary of National Motto

July 30 is the 50th anniversary of Congress' formal adoption of "In God We Trust" as the national motto. To commemorate this, on Wednesday the U.S. Senate passed by unanimous consent and sent on to the House of Representatives a Concurrent Resolution, S. Con. Res. 96 (full text). After 15 "Whereas" clauses chronicling the motto's history, the Resolution provides:

Resolved by the Senate (the House of Representatives concurring), That Congress— (1) commemorates the 50th anniversary of the national motto of the United States, ‘"In God We Trust";

(2) celebrates the national motto as— (A) a fundamental aspect of the national life of the citizens of the United States; and (B) a phrase that is central to the hopes and vision of the Founding Fathers for the perpetuity of the United States;

(3) reaffirms today that the substance of the national motto is no less vital to the future success of the Nation; and

(4) encourages the citizens of the United States to reflect on— (A) the national motto of the United States; and (B) the integral part that the national motto of the United States has played in the life of the Nation, before and after its official adoption.

Clergy Resign From Katrina Fund In Protest

After Hurricane Katrina, President George W. Bush asked two former presidents-- Bill Clinton and George H. W. Bush-- to co-chair a private fund-raising effort. They created the Bush-Clinton Katrina Fund which has raised over $100 million in contributions. Some $20 million of those funds were earmarked for churches to assist them in rebuilding damaged houses of worship. An interfaith committee was created to advise the fund on how to distribute monies to churches.

Yesterday the Washington Post reported that the co-chairs of the advisory committee-- Bishop T.D. Jakes and the Rev. William H. Gray III-- have resigned. A third committee member, Rev. William J. Shaw, resigned last week end. Some reports say that 8 of the 9 advisory committee members have submitted resignations. The advisory committee says that the staff of the Fund is ignoring their recommendations. Gray said that the board and staff would concur with the committee's recommendations in meetings, but then would act in the opposite way. Jakes and Shaw resigned when the staff refused to explain why, without committee knowledge, they sent $35,000 to a church that had not been inspected to determine its need.

Recent Books Of Interest On Religion and Politics

Here are a number of recent books on religion and politics:

Patrick M. Garry, Wrestling With God: The Court's Tortuous Treatment of Religion ,(Catholic University of America Press, May 2006).

Jonathan Bartley, Faith And Politics After Christendom: The Church As A Movement for Anarchy, (Paternoster Press, Sept. 2006).

Dan Wakefield, The Hijacking of Jesus: How the Religious Right Distorts Christianity and Promotes Prejudice and Hate, (Nation Books, March 2006).

Robin Meyers, Why the Christian Right Is Wrong: A Minister's Manifesto for Taking Back Your Faith, Your Flag, Your Future, (John Wiley & Sons, May 2006).

Shmuel Bar, Warrant for Terror : The Fatwas of Radical Islam, and the Duty of Jihad , (Rowman & Littlefield Publishers, Inc. , April 2006).

Sikh Transit Employee Protests Use Of His Photo

According to today's New York Sun, a Sikh employee of the New York Transit Authority is objecting to the use of his photo in a Transit Authority dress code bulletin. Trilok Arora is shown wearing an MTA logo on his turban, as required by Transit authority rules. However, Arora objects to having to do this and, with four other employees, last year filed suit to challenge the logo requirement. The Justice Department, which is also suing to challenge the MTA's dress code, has asked New York federal Magistrate Judge Marilyn Go to order the MTA to remove Arora's photo from the bulletin. Arora, 68, plans to retire in two years. Until then, he says he will wear his MTA logo only when a supervisor orders him to do so.

Seizure of Marijuana Does Not Violate Religious Freedom

In Loop v. United States, 2006 U.S. Dist. LEXIS 46636 (D. Minn., June 30, 2006), a Minnesota federal district court held that the religious freedom of Dennis Loop, a Rastafarian, was not infringed when federal marshals seized his brass marijuana pipe, wooden marijuana case, and a small amount of marijuana as he went through a metal detector in order to enter the federal courthouse in Minneapolis. The court rejected Loop's First Amendment and RFRA claims, finding that while marijuana is essential to Loop's religious practice, he did not show any burden in having to leave it at home during brief visits to the court house. The magistrate's recommendation, which was accepted by the judge, is at 2006 U.S. Dist. LEXIS 46635 (D. Minn., March 29, 2006).

Amish Farmer's Beliefs Not Infringed By Milk Regulations

In Millersburg, Ohio, a state trial court judge has ruled that an Ohio law prohibiting dairy farmers from selling unpasteurized milk does not violate an Amish farmer's religious beliefs. Farmer Arlie Stutzman had argued that his religious beliefs call for him to share his milk with others. (See prior posting.) Yesterday's Akron Beacon-Journal reports that Holmes County Common Pleas Court Judge Thomas D. White ruled that Stutzman may give unpasteurized milk to people in need, but he may not accept donations for it. He said that Stutzman had "produced no evidence that his religion compels him to make money from feeding the hungry." White also rejected Stutzman's entrapment argument. The case against Stutzman was brought after he sold mild to a state Department of Agriculture undercover agent.

Suit Seeks Identity of Bloggers Who Claimed Abuse by Rabbi

Public Citizen last week announced the filing of two motions in a pending California case in which Rabbi Mordecai Tendler, who was accused of sexually propositioning women who came to him seeking spiritual guidance, is trying to force Google to disclose the identities of four anonymous bloggers. (Full text of motions 1, 2.) Concerned about First Amendment issues, Public Citizen is urging the court to adopt a balancing test for these kinds of cases.

Tendler, who denies the charges against him, has been expelled from the Orthodox Rabbinical Council of America and was later sued for sexual harassment a former congregant. He is seeking to learn the identities of four bloggers who wrote about his case on: rabbinicintergrity.blogspot.com/, jewishsurvivors.blogspot.com/, jewishwhistleblower.blogspot.com/ and newhempsteadnews.blogspot.com. Tendler claims that defamatory materials about him have been posted. A report in today's Forward says that blogs and message boards are increasingly being used by Orthodox Jewish women to report allegations of sexual misconduct by rabbis.

Malaysia's School No-Turban Rule Upheld

On Wednesday, Malaysia's highest court-- the Federal Court-- upheld the Education Ministry's rule that bars the wearing of a turban as part of one's school uniform during school hours. New Straits Times reports on the suit that was filed on behalf of three Muslim brothers who had been expelled from school for refusing to remove their turbans. They claimed that the no-turban rule is unconstitutional, but the court said that wearing a turban is not a mandatory requirement of Islam. The court also pointed out that students can still wear turbans outside of school, and even in school can wear them in the prayer room. In its decision, the Court praised the Government's moves to preserve Malaysia’s multi-racial and multi-religious make-up.

Ohio Science Education Standards Again Challenged

Apparently some members of Ohio's state board of education are planning to try again to change the science instructional standards in Ohio schools. Americans United for Separation of Church and State said yesterday that board member Colleen Grady last month urged the Board of Education’s Achievement Committee to give 10th-grade science teachers guidance on teaching evolution and other "controversial" issues such as global warming, cloning and stem-cell research. This week, Americans United filed a request under the Ohio open records law asking for copies of the Grady proposal as well as all related documents. Earlier this year, the Ohio board, after a long battle, rejected changes that would have urged criticism of evolutionary theory in science classes. (See prior posting.)

Sikh Funeral Pyre In Britain May Have Violated Law

In Northumberland yesterday, Rajpal Mehat, an Indian-born Sikh who drowned several months ago in London, was cremated on the first religious funeral pyre in Britain in modern times. The Guardian reports that police are now investigating the funeral, claiming that the ceremony may have violated the Cremation Act that they say prohibits the cremation of human remains anywhere except in a crematorium. Northumbria police reluctantly permitted the ceremony to proceed, not wanting at the time to further upset a grieving family. Davender Ghai, president of the Anglo-Asian Friendship Society says that the Cremation Law does not forbid religious funeral pyres. (Backgound on Sikh funerals.)

Ohio Now Requires School Display of Donated US or State Motto

Ohio's Governor Bob Taft yesterday signed Sub. H.B. 184 which requires school districts that receive donated copies of the mottoes of the United States ("In God We Trust") or the State of Ohio ("With God, All Things Are Possible") to display them in school buildings. The requirement also applies when funds are donated to purchase copies of either motto. The law sets out design requirements, and permits school boards to adopt alternative designs.

NY Appellate Court Dismisses Satmar Case As Involving Doctrinal Dispute

In a much-watched case, yesterday a New York state appellate court dismissed a suit between two factions of the Orthodox-Jewish Satmar Chasidic community. The two sons of recently deceased grand rebbe Moshe Teitelbaum are engaged in a long-running battle for control over millions of dollars of property belonging to the 100,000 member group. This piece of the dispute involved the question of who was the properly elected president of the Satmar's congregational board in Williamsburg, and whether the grand rebbe had the authority to remove a president of the congregation. (See prior postings, 1, 2.) According to a report in today's New York Sun, the appellate court sitting in Brooklyn ruled that "Resolution of the parties' dispute would necessarily involve impermissible inquiries into religious doctrine and the congregation's membership requirements."

A dissent by Judge Robert Spolzino argued that "the by-laws of the congregation here provide the neutral principles of law upon which the authority of the grand rebbe with regard to the corporate governance of the congregation can be determined."

This decision continues the current balance of power in the Satmar community, with the Williamsburg group led by Rabbi Zalmen and the Kiryas Joel faction led by Rabbi Aaron.

UPDATE: Here is the full opinion in In re Congregation Yetev Lev D'Satmar, Inc., v. Kahana, (App. Div., 2nd Dept., July 11, 2006). There was a companion decision in Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D'Satmar, Inc., (App. Div., 2nd Dept., July 11, 2006), that challenged the transfer of a 50% interest in the Williamsburgh congregation's cemetery to the Kiryas Joel congregation. The court held: "The transfer ... is ... bound with this leadership dispute and it is clear that, at least in part, it was made to advance the interests of one of the competing Satmar factions and not to advance religious or charitable objects generally. Under these circumstances it cannot be said that the transfer was in the best interests of the Brooklyn Congregation and accordingly we decline to exercise our discretion to approve it, thereby restoring the status quo ante." Judge Spolzino concurred in the result. [Thanks to Steven H. Sholk for the lead.]

Court Upholds School Fees For Good News Club

In Child Evangelism Fellowship of South Carolina v. Anderson School District 5, 2006 U.S. Dist. LEXIS 46298 (D. SC, July 7, 2006), a federal district court in South Carolina upheld a school district's policy on charging fees for use of school facilities by groups running after-school programs. Child Evangelism Fellowship (CEF) applied to use school facilities for the Good News Club, a Bible and religious education program for elementary school children. The school informed CEF that it would be required to pay a rental fee. CEF argued that this discriminated against it on the basis of its religious viewpoint and the content of its message. Even though other groups offering after-school programs , such as the scouts and the YMCA, came within the school's fee waiver policy, the court held that the District had valid reasons for treating CEF differently, and that administrators had not applied school policy in a discriminatory manner.

Free use was permitted for school-related organizations, organizations offering joint programs with the school, and, in the original version of the policy, others where the school found a fee waiver to be in the school's best interest. After suit was filed against it, the District eliminated the waiver provisions, but grandfathered in free usage for groups that had been using school facilities in the past. The court found these to be valid classifications, and rejected CEF's free speech, free exercise, equal protection and establishment clause arguments.

In deciding the case, the court also dealt with standing, mootness and 11th Amendment arguments.

Ohio Charity Rule Amendments Will Impact Faith-Based Groups

Interested parties have until July 28 to file comments on Proposed Rules Changes for charitable organizations issued by Ohio Attorney General Jim Petro on June 30. The Attorney General's Fact Sheet says: "Faith-based organizations that are not closely controlled by churches, including many hospitals and a few nursing homes, would be required to file an annual report under the new rules. However, the rules would clarify that churches and strictly religious organizations remain exempt from registration."

An accompanying press release explains that "the rules are aimed at reducing the potential for problems such as excessive executive compensation and expense reimbursements by charities and hospitals, or conflicts of interest in business contracts let by governing boards... The proposal is also designed to foster best practices by charitable hospitals and other proprietary charitable organizations in billing, collection, and charity care, and to set standard guidelines in Ohio for reporting how charitable organizations benefit the community so the public can make meaningful comparisons of their charitable activities. [It requires] ... larger charitable organizations to either adopt a set of policies prescribed in the rules or publicly disclose their board-approved conflicts of interest, whether they have allowed insiders to approve their own compensation, all payments to board members by the charity, insider loans, and the like."

Rabbinic Court Challenges Israel's Supreme Court

In Israel today, the Jerusalem Post reports that another chapter has begun in the struggle between rabbinic courts and civil courts over the extent of their respective powers. Two months ago Israel's Supreme Court, rejecting a ruling of the High Rabbinic Court, ruled that a rabbinic court could not permit a husband in a divorce case to present a video of his wife's sexual exploits because it violated the wife's privacy rights. However now three judges on Netanya's regional rabbinic court have ruled that the video can be used to force the unfaithful wife to accept a writ of divorce (get). The rabbis held that under Jewish law, the husband is obligated to divorce his wife after viewing the content of the video even if the video was obtained illegally. In the past few months the rabbinic courts have launched an aggressive offensive after an April Supreme Court ruling curtailing rabbinic courts' jurisdiction over monetary matters.

Suit In Dominican Republic Challenges Concordat With Vatican

In the Dominican Republic today, representatives of the more than 1,600 evangelical churches rallied in front of the Dominican Supreme Court filed an appeal challenging the country's agreement with the Vatican-- known at the Concordat-- according to a report from Dominican Today. The suit claims that the Concordat conflicts with constitutional protection of freedom of conscience and religion. (Dominican Constitution.) The Concordat, signed in 1954, gives the Catholic Church special privileges not granted to other religious organizations, including the use of public funds to underwrite some church expenses and a waiver of customs duties when importing goods. (Background.)

Ohio Governor's Race Focuses On Christian Voters

Ohio's race for governor this year promises to be a battle between two candidates, Watch of whom is appealing strongly to Christian voters. The Associated Press reports this morning that Democratic candidate Ted Strickland, a former United Methodist minister, has just bought extensive advertising on Christian talk, gospel and other religious stations in communities around the state that have traditionally been the territory of his Republican opponent, Kenneth Blackwell who has been backed by the conservative Christian Ohio Restoration Project. (See prior posting.) In his new ad, Strickland quotes a passage from the Biblical book of Micah, that calls for people "to do justice, to love kindness and to walk humbly with our God." He says he has applied the principle throughout his life, and continues: "And now I am running for governor because most Ohioans know that we are not doing as well as we should. Ohio is in desperate need of new leadership and the same biblical principles which have guided and instructed me in the past will continue to sustain me as I serve as Ohio's next governor."

After the Blackwell campaign accused Strickland of having a record of voting against issues that are important to Christian conservatives, Strickland's campaign spokesman said that Strickland opposes using religion "to divide Ohioans against one another".