Recent Prisoner Free Exercise Cases

In Kanda v. Melching-Rianda, 2006 U.S. Dist. LEXIS 65817 (ED CA, Sept. 1, 2006), a California federal Magistrate Judge held that a prisoner could file an amended complaint properly challenging denial of his request for a single cell so he would not be housed with someone who violated his religious belief that he could not have beef or beef by-products in his cell. He could also file an amended complaint alleging that he was placed in administrative segregation for invoking his religious beliefs.

In Scott v. Beard, 2006 U.S. Dist. LEXIS 65673 (MD PA, Sept. 14, 2006), a Pennsylvania federal district court held that defendants had qualified immunity in a prisoner's claim for damages growing out of a denial of his request on religious grounds for an exemption from prison requirements about hair length. The prisoner was a member of the Assemblies of Yahweh and had taken a Nazarite vow. The court found that the prisoner's RLUIPA claim for an injunction was moot because he had now been released from prison and the prison system had adopted revised policies making it easier to obtain an exemption from grooming rules.

In Northrop v. Summersett, 2006 U.S. Dist. LEXIS 65136 (ND CA, Aug. 30, 2006), a California federal district court dismissed on res judicata grounds a prisoner's claim that the removal of pork from menus in some California prisons violates the Establishment Clause, as well as his rights under the Free Exercise clause, RLUIPA, the equal protection clause and the California Constitution.

In Price v. Caruso, 2006 U.S. Dist. LEXIS 64322 (ED MI, Sept. 8, 2006), a Michigan federal district court refused to grant summary judgment to defendants in a prisoner's suit claiming that policies prohibiting travel between prison complexes interferred with Jewish prisoners' being able to adequately have Sabbath services and a Passover Seder.

In Smith v. Crose, 2006 U.S. Dist. LEXIS 64250 (D NJ, Sept. 7, 2006), a New Jersey federal district court permitted an inmate to move ahead with a claim that his free exercise rights were violated when he was prevented from attending Ju'ma services because he had an injured ankle. A number of plaintiff's other claims were dismissed.

In Skenandore v. Endicott, 2006 U.S. Dist. LEXIS 64175 (ED WI, Sept. 6, 2006), a Wisconsin federal district court rejected a RLUIPA challenge by an inmate who is a member of the Oneida Indian tribe to Wisconsin policies on the practice of religion in correctional institutions. Plaintiff complained that he was not permitted to possess a prayer pipe, smoke tobacco or smudge herbs; that he was prevented from forming a Native American Cultural Activity Group; that he was not given time com complete sweat lodge ceremonies; that he is being denied religious feasts and ceremonial foods; that he may not possess traditional regalia; and that non-Native American inmates are allowed to participate in Native American religious activities.

In Dixon v. Wodruff-Fibley, 2006 U.S. Dist. LEXIS 65911 (SD IN, Sept. 14, 2006), the court rejected a First Amendment claim by an inmate who was refused permission to pray outside of his cell. He claimed that his prayers are considered invalid if offered in the midst of pictures or drawings of living objects, such as his cellmate has in his cell.

New Publications In Law and Religion

From SmartCILP:
William E. Nelson, The Utopian Legal Order of the Massachusetts Bay Colony, 1630-1686, 47 American Journal of Legal History 183-230 (2005).

From SSRN:
Steven Douglas Smith, The Jurisdictional Establishment Clause: A Reappraisal (forthcoming Notre Dame Law Review).

From Bepress:
Steven H. Shiffrin, Liberalism and Religion (August 22, 2006), ExpressO Preprint Series. Working Paper 1601.

New Book:
Ray Suarez, The Holy Vote: The Politics of Faith in America (Harper Collins, August 29, 2006)-- reviewed in Sunday's Washington Post.

Religious Dress Ban In France As New School Year Begins

As the school year began in France, it appears that high profile controversies over the country's ban on wearing conspicuous religious symbols and dress in public schools have largely disappeared. The only open controversy involves four Sikh students who are being kept isolated in rooms apart from their classmates because they refuse to remove their turbans and and switch to an under-turban keski or patka. (Sikh Sangat News.) However, yesterday's Khaleej Times says that the ban has only been partially successful. It has helped some Muslim girls who came to school wearing headscarfs only because of pressure from their family or community. But other Muslim young women have gone to other countries to study or signed up for distance learning courses in order to avoid the ban. Meanwhile, in a tape released by Al Queida on the anniversary of the 9/11, Ayman Al Zawahiri criticized "those in France who prevent Muslims from covering their heads in schools".

Competing Bills On Military Chaplain Prayer In Congress

On Friday, WorldNet Daily carried a discussion of the competing provisions on prayer by military chaplains that appear in the House and Senate versions of this year's Defense Authorization Bill. The House version would assure chaplains that they could pray according to the dictates of their own conscience, except for narrow limitations compelled by military necessity. The Senate version, on the other hand, would require chaplains, outside of religious services or ceremonies for their own faith, "to be sensitive to and respect the diversity of faiths represented" in their audience." Navy Chaplain Gordon Klingenschmitt, the recently court-martialed proponent of sectarian prayer in the military, strongly opposes the Senate version. He says it would empower the Pentagon to establish "pluralism" as a new form of religion. Klingenschmitt favors yet a third proposal that would merely amend current 10 USC 6031 to broadly permit chaplains to pray according to the manner and forms of their religious denominations.

2nd Circuit Interprets 1998 Charitable Donation Protection Act

While a decision earlier this month by a Bankruptcy court judge on charitable donations in bankruptcy proceedings garnered a good deal of attention, an equally important case on the issue decided several weeks ago by the Second circuit seems to have gone largely unnoticed. In Universal Church v. Geltzer, (2nd Cir., July 26, 2006), the Second Circuit Court of Appeals held that treating some contributions to churches as fraudulent conveyances in bankruptcy does not violate the Free Exercise of Establishment clauses. It went on to interpret various provisions of the Religious Liberty and Charitable Donation Protection Act of 1998. It held that the statute's shield for charitable donations of up to 15% of a debtor's annual income applies to aggregate annual transfers, not to individual donations. The court held that in this case, the Church had waived its claim that it should be able to retain amounts donated to it under the 15% limit. Finally it held that on remand the church could raise the statutory defense that donations in excess of 15% "were consistent with the practices of the debtor in making charitable contributions."

Most Muslim Leaders Say Pope's New Statement Not A Sufficient Apology

As angry reaction spread across the Muslim world to an address last week by Pope Benedict XVI (see prior posting), the Pope today spoke on the issue (full text). He said:

I am deeply sorry for the reactions in some countries to a few passages of my address at the University of Regensburg, which were considered offensive to the sensibility of Muslims. These in fact were a quotation from a medieval text, which do not in any way express my personal thought.

Yesterday, the Cardinal Secretary of State published a statement in this regard in which he explained the true meaning of my words. I hope that this serves to appease hearts and to clarify the true meaning of my address, which in its totality was and is an invitation to frank and sincere dialogue, with great mutual respect.

The full text of Cardinal Secretary of State Tarcisio Bertone's statement, to which the Pope refers, is available as part of NPR's coverage of the story. Bertone assumed his office as Secretary of State only two days ago.

Before the Pope spoke today, there had even been calls by a Somali cleric for Muslims "to hunt down the Pope for his barbaric statements as you have pursued Salman Rushdie, the enemy of Allah who offended our religion." (Zimgreats. com). In a possibly related incident, an Italian nun at a children's hospital in Mogadishu was murdered on Sunday. (New York Times.)

After the Pope's statement on Sunday, Muslim clergy in Syria expressed satisfaction. (Deutsche Presse Agentur). However most Muslim leaders around the world say that the Pope's Sunday address did not go far enough in apologizing. (CNN).

Tennessee Ten Commandments Case Moves To Trial

In ACLU of Tennessee v. Rutherford County, 2006 U.S. Dist. LEXIS 65882 (MD TN, Sept. 14, 2006), a Tennessee federal district court lifted a stay on proceedings, and agreed to move to trial, in a Ten Commandments case. The court had imposed the stay in 2002 pending appellate review of a similar case from McCreary County, Kentucky. The McCreary County case was ultimately decided by the U.S. Supreme Court in decisions that struck down that county's Foundations of American Law and Government Display. Along with imposing a stay of proceedings in the Rutherford County case, the court in 2002 issued a preliminary injunction against Rutherford County's courthouse display of documents (including the Ten Commandments), finding that the county had an impermissible religious purpose in creating it. In compliance with the order, the display was removed. In its current decision the court has refused to automatically turn its 2002 preliminary injunction into a permanent injunction. It said:

[E]ven if the same public body previously attempted to post the Ten Commandments in an unconstitutional manner, it may be able to post the Ten Commandments in the future in a constitutionally permissible manner. While recent cases provide a "road map" to follow in permissibly displaying documents with religious content, these Rutherford County Defendants must show that they have purged themselves of their original sectarian purpose relating to the posting of the Ten Commandments.

Court Says Privilege Did Not Excuse Failure To Report Sex Abuse

R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 U.S. Dist. LEXIS 65772 (WD WA, Sept. 14, 2006), involves a suit in a Washington federal district court against the Mormon church for negligence in failing to report sexual abuse of a 13-year old boy by his scout leader, as required by state law. The suit was brought by an individual who was abused the following year by the same scout leader. A Bishop learned of the first incident of abuse during a conversation with the father of the abused child. The Church claims that the priest-penitent privilege, as codified in Washington law, precluded reporting, but the court found that the Bishop could have reported the abuse to law enforcement officials in a way that would not have disclosed any confidential communications.

Indian Court Bans Priests' Helpers From Temple

A court in Calcutta, India has banned assistants to Hindu priests-- known as touts or pandaas-- from entry into the famous Kalighat temple . Yesterday, BBC News reported that the pandaas have been accused of extorting money from worshipers who they escort into the temple and help perform the puja (worship).

Newdow Seeks Libel Judgment Against Critic

On Monday, Michael Newdow, who has gained fame through his law suits challenging the constitutionality of the phrase "under God" in the Pledge of Allegiance, will be appearing in a state court of appeals in California to defend his right to move ahead with a libel suit against Rev. Austin Miles, an interdenominational chaplain. Yesterday’s issue of The Recorder reports on Newdow’s claim that Miles defamed him in two internet postings that accused Newdow of committing perjury before the 9th Circuit Court of Appeals in the "Pledge of Allegiance" case. Miles said that Newdow told the court that his daughter had suffered emotional distress by being forced to recite the pledge. Newdow says he only told the court that children like his daughter are unduly influenced when schools lead them in a ritual proclaiming the existence of God. Newdow says that the chaplain acted with actual malice in making the false statements—a standard that must be met when a public figure like Newdow sues for libel. Newdow is also seeking reinstatement of a default judgment against Miles that was originally issued and then set aside by the trial court.

California Church Location Approved Under Pressure of RLUIPA

Yesterday’s San Diego Union-Tribune reports that in Rancho Bernardo, California, city planners next week will reluctantly recommend that Grace Church be permitted to hold evening and Sunday services in an 18,000 square foot leased space in Bernardo Industrial Park. Planners would rather preserve the space in the industrial park for more lucrative industrial uses that generate jobs and taxes. However, officials say that the Religious Land Use and Institutionalized Persons Act requires them to approve the church’s requested 10-year conditional use permit, especially because a few other churches have been granted permits to locate in the same industrial park. Grace Church's pastor, Eric Turbedsky, says the rented space is a small warehouse that has been unoccupied for six years, and that there is no other land in Rancho Bernardo left that is zoned for churches.

State Department Issues International Religious Freedom Report

Yesterday, the U.S. State Department released its eighth annual International Religious Freedom Report. (Press Release, Full Text of Report, Secretary RiceÂ’s Statement) The report examines the extent to which religious freedom is protected in 197 different countries. The report is required by the International Religious Freedom Act of 1998, which also requires the State Department to designate as "countries of particular concern"(CPCs) those nations that are most egregious in violating, or tolerating violations of, religious freedom. However, Ambassador At Large for International Religious Freedom, John V. Hanford III, said that while the report is being released, the State Department has not yet finalized its list of CPCs for 2006. It will do that in "several weeks". Immediately following the State Department release, the U.S. Commission on International Religious Freedom issued a statement criticizing thereport's drafters for removing "longstanding and widely quoted language ... that freedom of religion does not exist in Saudi Arabia".

Kansas AG's Campaign Tactics Toward Churches Revealed

In Kansas, a memo from the campaign of Attorney General Phill Kline on how he plans to appeal to religious voters has been leaked to the media, according to the Associated Press yesterday. In the memo, Kline tells his re-election campaign to hold political receptions near churches after their services, and to try to get pastor to mention the receptions during services. He also wants pastors to bring a few "money people" to each reception. In a debate with his Democratic challenger Paul Morrison yesterday, Kline defended his outreach to churches. He said, "They didn't need to break into my campaign software program and computer and hack this information to know about it - I have been speaking in churches for more than 20 years now." Challenged about church-state separation issues, he said that the principle is designed to prevent government imposing a religion, and not to preventing people of faith from expressing their opinions or holding public office.

UPDATE: Here is the full text of the Attorney General's memo to his campaign staff. For more on this see Jews On First blog.

Still No Agreement Over Women's Protection Bill In Pakistan

The New York Times reported yesterday that the Pakistani government has encountered continued opposition from some Muslim clerics over its attempt to enact the Women's Protection Bill that would amend the Hudood Ordinance of 1979. A vote planned for Wednesday was postponed. Under the government's original proposal, rape cases would be moved from Islamic courts to civil courts, and accusers in adultery cases would have to appear before a court instead of just filing complaints with the police. It would also raise the age of consent to 16, and allow women as well as men to be one of the four required witnesses to prove adultery. Under a compromise agreement this week, the punishment would remain the same for women for rape and adultery, though a judge could under some circumstances elect to use the country's civil law instead of Sharia. Another proposal would criminalize "lewdness", including consensual sexual relations. Some supporters of the original bill say these changes are unacceptable. (See prior posting.)

Religious Amusement Parks and Tax Breaks

An article published in McClatchy Newspapers today explores the issue of property tax exemptions for religious-themed amusement parks. Florida has passed a special property tax exemption for theme parks like Holy Land. (HB 7183). Some tax officials argue that these operations should be taxed like other amusement parks, and not like religious organizations.

Pope's Remarks Anger Muslim Countries

Anger spread across the Muslim world today at remarks made last Tuesday by Pope Benedict XVI in an address to scientists at the University of Regensburg, where he was a professor and vice rector from 1969 to 1971. (Bernama; Investors Business Daily.) The Pope titled his address "Faith, Reason and the University" (full text). In his remarks, the Pope decried the use of force, rather than reason, to convert individuals to a particular religious belief. In making his point, the Pope referred to statements made in 1391 by Byzantine emperor Manuel II Paleologus, who, in debating an "educated Persian" on the subject of Islam and Christianity, said: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached."

Pakistan's Parliament unanimously passed a resolution condemning the Pope's remarks, and in Turkey a leader in the Prime Minister's party said the Pope would go down in history with leaders like Hitler and Mussolini for his remarks. (The Independent.) The Egyptian-based Muslim Brotherhood said Islamic countries should consider breaking diplomatic relations with the Vatican unless the remarks are withdrawn. (ITV.) In response, the Vatican issued a statement, saying that the Pope wishes to "cultivate an attitude of respect and dialogue toward other religions and cultures, obviously toward Islam too.... What is at the Pope's heart is a clear and radical refusal of the religious motivation of violence."

TRO Denied To Funeral Protesters

In St. Louis yesterday, a federal judge refused to issue a temporary restraining order to prevent enforcement of Missouri's law against demonstrating at funerals. The St. Louis Post Dispatch reports on the decision. The law is being challenged by Shirley Phelps-Roper, a member of the Westboro Baptist Church. Her group has gained notoriety for picketing funerals of veterans of the Iraq and Afghanistan wars, holding signs claiming that soldiers' deaths are punishment by God of the United States for sins such as tolerating homosexuality. U.S. District Judge Stephen N. Limbaugh said that church members would not be irreparably harmed by not being able to protest at Sunday's funeral of Jeremy R. Shank, who was killed by small arms fire in Balad. Another lawsuit has already been filed challenging Missouri's law. (See prior posting.)

Native Americans Argue Snowbowl Appeal In 9th Circuit

Yesterday the U.S. Ninth Circuit Court of Appeals heard arguments in The Navajo Nation v. U.S. Forest Service, a challenge by various Southwestern Indian tribes to the expansion of an Arizona ski resort. Associated Press reports on the arguments over what would be the country's first ski resort to use entirely reclaimed sewage water to make snow. Scott Canty, attorney for the Hopi Tribe, argued that man-made snow would desecrate the mountain that is sacred to 13 Southwestern tribes. Jack Trope, attorney for the Hualapai tribe, said that the artificial snow could melt into a nearby spring used by the tribe for healing ceremonies, making the waters unusable for spiritual purposes. The lower court had rejected the tribes' First Amendment and RFRA claims. (See prior posting.)

Michigan House Passes Bills To Permit Rejection Of Gay Adoptions By Agencies

Pride Source reports that last week, Michigan's House of Representatives passed two companion bills that would allow faith-based adoption agencies to refuse to place children with same-sex parents if they have "written religious moral convictions or policies" against homosexuality. HB 5908 and HB 5909 also prohibit the state from considering such policies adversely in its dealings with faith-based agencies. The votes on the bills were 69-37.

Study Finds Behavioral Changes When "Blue Laws" Are Repealed

Richard Morin's column in today's Washington Post calls attention to a fascinating empirical study of the impact of repealing Sunday closing laws. Recently published by the National Bureau of Economic Research, Jonathan Gruber & Daniel M. Hungerman, The Church vs the Mall: What Happens When Religion Faces Increased Secular Competition?, concludes that the repeal of "blue laws" has definite effects on the behavior. Here is part of the Abstract:

We ... use a variety of datasets to show that when a state repeals its blue laws religious attendance falls, and that church donations and spending fall as well. These results do not seem to be driven by declines in religiosity prior to the law change, nor do we see comparable declines in membership or giving to nonreligious organizations after a state repeals its laws.... We find that repealing blue laws leads to an increase in drinking and drug use, and that this increase is found only among the initially religious individuals who were affected by the blue laws.... [T]he gap in heavy drinking between religious and non religious individuals falls by about half after the laws are repealed.

The full report is available online from SSRN at a cost of five dollars.

Wiccan Symbol Will Go On Memorial Plaque For Veteran

While Nevadan Roberta Stewart has still not gotten the federal Department of Veteran's Affairs to approve the use of a Wiccan symbol on the grave marker of her deceased husband who was killed in Afghanistan, she has received a more sympathetic reception from state officials. The Nevada Office of Veterans Services has approved placement of a plaque containing a pentacle on the Veterans' Memorial Wall at the Northern Nevada Veterans Memorial Cemetery in Fernley, NV. It will be ready for installation by Sept. 25, the one-year anniversary of Patrick Stewart's death. Today's Reno Gazette-Journal and today's Nevada Appeal report on these developments. The deceased serviceman was a member of Nevada's National Guard.

Ohio School District Will Not Defend Its Win Before 6th Circuit

The Toledo Blade yesterday reported that the Rossford, Ohio Board of Education has voted, 3-2, not to spend the money that it will cost defend its victory in a church-state case. At the end of July, an Ohio federal district court rejected claims of a Christian rock band that it had been discriminated against when its planned concert at Rossford (Ohio) High School was cancelled out of concern that it might violate the Establishment Clause. (See prior posting.) The band appealed, represented by the Rutherford Institute. The Rossford board will enter settlement discussions with the band.

Baltimore Archdiocese Can Tear Down Historic Building

On Tuesday, Maryland's Court of Appeals (its highest court) denied certiorari in Mt. Vernon Belvedere v. Dept. of Housing, ending attempts by preservationists to prevent the Archdiocese of Baltimore from tearing down a 100-year old apartment building in order to build a prayer garden. (See prior posting.) Yesterday's Baltimore Sun reported that Paul Warren, president of the Mount Vernon Belvedere Association that was challenging the Archdiocese's plans, reacted bitterly: "It is disgusting that the archdiocese will succeed, with a Catholic mayor's acquiescence, in demolishing a key Baltimore historic asset.... [T]he archdiocese is using the church-state laws not as the shield they were intended to be, but as a sword to gain privileges none of the rest of society has been granted.

Indian State To Amend Its Anti-Conversion Law

In the Indian state of Gujarat, the Cabinet has decided to propose liberalization of its anti-conversion law that had been enacted in 2003, according to yesterday's Times of India. The amendments to the Freedom of Religion Act will eliminate the need for government approval of conversion between sects of the same religion. It will consider Hinduism, Buddhism, Jainism and Sikhism all sects of a single faith for these purposes. The amendments will be presented to the Assembly during its Sept. 18-19 session. The government hopes that this will permit it to implement the 2003 statute which it so far has not enforced because of doubts about its legality.

UPDATE: On Sept. 19, the amendments to the Freedom of Religion Act were passed by the State Legislative Assembly. However opponents vigorously protested the law's description of Buddhism and Jainism as Hindu denominations. (Express News Service.)

Puzzling Developments In Ohio On Intelligent Design

What is Ohio's State Board of Education doing? After much speculation that it would be adopting a "Controversial Issues Template" that might permit discussion of Intelligent Design in the classroom, on Monday a board subcommittee failed to vote on the proposal. The Akron Beacon Journal says that instead, the subcommittee spent the two hours allocated to the issue rewriting the minutes of its July meeting to remove references in them to Intelligent Design. The original July minutes referred to other controversial issues, such as global warming, cloning and stem-cell research. Apparently, however, these were in fact not discussed, and Monday's revised minutes delete references to them.

Dutch Justice Minister-- Sharia Could Be Established Democratically

In Netherlands, Justice Minister Piet Hein Donner said that if enough people vote for it, the country should be able to adopt Islamic law. The statement is reported Wednesday in WorldNet Daily. It came in reaction to parliamentary leader Maxime Verhagen who argues that the country should ban parties wanting to establish Islamic law. Donner said that Muslims have a right to practice their religion in ways that are different from Dutch social norms, and concluded that Muslim groups should be able to come to power through democratic means.

Study Says Texas High School Bible Courses Are Sectarian

Today's San Antonio Express News reports on a study by the Texas Freedom Network that finds a majority of Bible courses offered as electives in Texas high schools are devotional and sectarian rather than academic. The report says:

with a few notable exceptions, the public school courses currently taught in Texas often fail to meet minimal academic standards for teacher qualifications; curriculum, and academic rigor; promote one faith perspective over all others; and push an ideological agenda that is hostile to religious freedom, science and public education itself.

Courses are often taught by teachers with no academic training in biblical, religious or theological studies, and sometimes are taught by local clergy. However the report cited 3 districts that presented courses in a much more neutral manner. The full text of the report, titled Reading, Writing and Religion: Teaching the Bible in Texas Public Schools, is available online.

Masorti Movement Wins A Small Victory In Israel

In Israel, just a day before a hearing was to be held in the High Court of Justice, the Jerusalem Post reports that a compromise was reached between the religious council in the Negev settlement Meitar and its local Masorti (Conservative) synagogue. The Council agreed to advertise the times of Masorti services for the Jewish High Holidays along with publicizing Orthodox services. Orthodox Rabbi Moshe Bigal had ordered the Council not to advertise for the Masorti Movement, saying: "Jewish law does not permit me to advertise them. I cannot condone a movement that did nothing to prevent assimilation in the US. For me the Conservatives are not a part of Judaism. It's as if a church or mosque asked me to advertise for them."

Church May Be Liable For Negligent Supervision Of Minister-Marriage Counselor

Here is a case from a few months ago that has not previously been noted. In Vione v. Tewell, (Sup. Ct. NY County, May 19, 2006), a New York trial court held that it would not unconstitutionally impinge on ecclesiastical issues if it moved forward with plaintiff's claims that a minister was having an affair with his wife at the same time he was providing secular marriage counseling to the couple. The court said that a claim had been stated for breach of fiduciary duty by the minister acting as marriage counselor, but that the church was not vicariously liable because the minister was acting outside the scope of his duties in having sexual relation with plaintiff's wife. However the church could be liable for negligent retention and supervision of the minister.

Suit Challenges Faith-Based Grants To Marriage Institute

Yesterday, on behalf of 13 Washington state taxpayers and residents, Americans United for Separation of Church and State filed suit challenging two federal faith-based grants awarded to the Northwest Marriage Institute. (Press release.) The complaint in Christianson v. Leavitt (full text) says that the Institute, formed to provide Bible-based pre-marital and marriage counseling, has used federal funds for staff salaries, for educational materials and to set up a web site that promotes fundamentalist religious beliefs. The complaint alleges that there are not adequate safeguards to prevent federal funds from being used for religious purposes in violation of the Establishment Clause. It seeks an injunction against future grants to the Institute and an order requiring the Institute to repay funds it has already received.

Covering the filing of the suit, today's New York Times interviewed Bob Whiddon Jr., director of the Northwest Marriage Institute, who argued that the federal grants could legally be used to increase the capacity of his organization to serve the community. George Washington University Law Professor Robert Tuttle criticizes the government for not providing clear guidelines on the use of federal faith-based funds.

Chaplain's Court Martial Begins

The court martial trial of Navy Chaplain Gordon J. Klingenschmitt began yesterday. The Associated Press reported that the case turns on whether or not Klingenschmitt violated an order regarding when he could wear his Navy uniform. A superior officer had ordered him not to wear it during media appearances without first receiving permission, but said he could be in uniform if conducting a worship service. At issue is whether his leading two prayers in uniform at a press conference held in front of the White House violated that order. The news conference was called by the Foundation for Moral Law, headed by former Alabama Supreme Court Justice Roy Moore. It is expected that Moore-- who became famous when he erected a large 10 Commandments monument in the lobby of the Alabama Supreme Court's building-- will testify on Klingenschmitt's behalf. Klingenschmitt, an Evangelical Episcopal priest, has been on a long campaign against Navy rules that call for chaplains to deliver only non-denominational prayers, except when they are conducting their own denomination's religious services. (See prior posting.)

UPDATE: After deliberating for 1 hour and 20 minutes, a jury of 5 officers on Wednesday found Klingenschmitt guilty of disobeying a senior officer's order. Klingenschmitt's attorney called no witnesses for the defense, instead arguing that the government's evidence demonstated his client's innocence. The jury returns on Thursday to determine the appropriate sentence, which could be forfeiture of 2/3 pay for a year and a reprimand. (Associated Press)

UPDATE: On Thursday, the court martial decided that Klingenschmitt should receive a letter of reprimand. The jury also recommended that he lose $250 per month of his pay, but the court suspended that part of the sentence. Klingenschmitt says he will appeal. (WAVY-TV, Norfolk, VA.)

2nd Circuit Rejects Establishment Clause Challenge To Legal Services Restrictions

The U.S. Second Circuit Court of Appeals has rejected a rather ingenious Establishment Clause argument in a suit challenging federal restrictions on local legal assistance programs that receive federal funding through the Legal Services Corporation. The restrictions relate to the organizations bringing class actions, seeking certain types of attorneys' fees and engaging in in-person client solicitation. When a local program receives non-federal money as well, it can create an affiliate organization to use funds for otherwise prohibited purposes, but only if it meets strict requirements of separation between the two organizations. In Brooklyn Legal Services Corp. B v. Legal Services Corporation, (2nd Cir., Sept. 8, 2006), challengers argued that under the President's faith-based initiative, religious organizations that receive federal funds have less stringent separation requirements for assuring that federal funds are not used for their religious activities. The court rejected the argument that this amounts to an unconstitutional discrimination against secular speech.

Scientologists Lose Challenge To Nebraska Infant Blood Test Law

Nebraska's required blood test for newborns to screen them for eight metabolic diseases that can cause mental retardation or death if left untreated was upheld against constitutional challenges brought by a couple who follow the teaching of the Church of Scientology. They believe that parents should insulate their newborns from pain during the birth process and for the first seven days of life. In Spiering v. Heineman, 4:04 CV 3385 (D NE, Sept. 12, 2006), a Nebraska federal district court rejected free exercise, due process and Fourth Amendment challenges. The Associated Press yesterday reported on the decision. Nebraska is one of only four states that do not have religious exemptions to their laws on screening of newborns, and is the only state that permits courts to force parents to have their children tested.

The court spent most of its opinion on plaintiffs' free exercise challenge. It held that the requirement is a neutral law of general applicability, and as such the legislature needed only a rational basis for imposing the regulation. (See prior related posting.) [Thanks to How Appealing for posting the opinion.]

European Parliament Criticizes Turkey On Religious Freedom; Turks Respond

Earlier this month, the Foreign Affairs Committee of the European Parliament approved a report that was very critical of the progress toward EU membership that Turkey has made in a number of areas. (AINA report.) Among the items in the report (full text) was criticism of Turkey's limitations on the free exercise of religion by non-Sunni Muslim minorities. The non-profit group ABHaber yesterday issued comments (full text) responding to the European Parliament's report, including a defense of progress that Turkey has made in assuring religous freedom for minorities.

The comments point out that a Minority Issues Assessment Commission has been set up to find solutions to daily problems faced by non-Muslim religions; non-Muslim religious foundations have been granted the right to buy and sell real property; non-Muslim places of worship have been restored; and an amended Law on the Civil Status Registration Services allow individuals to have their religion removed from the register of families and the religion section of their birth certificate left blank.

Christian Anti-Abortion Group Has 501(c)(3) Status Revoked

The Internal Revenue Service announced last Friday that it has revoked its determination that Youth Ministries, Inc., d/b/a Operation Rescue West Wichita, KS qualifies as a Section 501(c)(3) and Section 170(c)(2) exempt non-profit organization. IRS Announcement 2006-69 (Sept. 8, 2006). Operation Rescue is an anti-abortion group that describes itself as "one of the leading pro-life Christian organizations in the nation ... on the cutting edge of the abortion issue, taking direct action to restore legal personhood to the pre-born and stop abortion in obedience to biblical mandates." The group and its leader, Troy Newman, have been under investigation by the IRS for money laundering and tax evasion. Apparently Newman claims his staff are "missionaries" and does not report their income to the IRS. (Wikipedia.)

Wiesenthal Center To Ask Israel Supreme Court For Approval On Museum

The Los-Angeles based Simon Wiesenthal Center will ask Israel's Supreme Court to allow it to begin building a Museum of Tolerance in downtown Jerusalem. The Associated Press today reports that this step is being taken after seven months of court-ordered mediation between the Center and Arab groups opposing the Museum failed. (See prior related posting.) Muslim groups say the site was a cemetery. They rejected the Center's proposal to move remains to a nearby neglected Muslim cemetery and renovate it, after Palestinian families living in east Jerusalem who had relatives buried at the Museum site opposed the plan. The proposed Museum site is now a 4-floor deep parking lot and was given to the Center by the Jerusalem municipality. It has not been officially designated as a cemetery for more than 30 years, and in 1964 an Islamic court ruled that the area is no longer sanctified as a cemetery. However Durgham Saif, a lawyer for Karameh, one of the two Arab groups involved in the dispute, says that the Islamic judge who made that ruling was corrupt and was acting without due process.

Michigan Religious Leaders Oppose Anti-Affirmative Action Ballot Measure

Today's Detroit Free Press reports that some 300 Christian, Jewish and Muslim leaders of will hold a news conference this morning to register their opposition to the so-called Michigan Civil Rights Initiative, a proposal on the ballot in November that, if adopted, would ban affirmative action programs. Yesterday, the U.S. 6th Circuit Court of Appeals denied opponents request for an injunction pending appeal in their attempt to keep the proposal off the November ballot.

Navy Chaplains Lose Evidentiary Challenge

Plaintiffs have suffered a loss in a long-running challenge to the Navy Chaplain Corps' hiring, promotion and retention policies. Adair v. Winter, 2006 U.S. Dist. LEXIS 64327 (DDC, Sept. 11, 2006), involves issues at the discovery stage of the case that was brought by current and former Navy chaplains and an agency that certifies chaplains. Plaintiffs claim that Naval policy favors liturgical Christian sects over non-liturgical Christian sects. This opinion involves a constitutional challenge to 10 USC 618(f) that denies plaintiffs civil discovery of the proceedings of Naval officer promotion boards. The court held that there is no constitutional right to privileged evidence in the case, and that the board proceedings are not essential to plaintiffs' proving their claim. (See prior related posting.)

Boston Religious Leaders Urge Muslims To Do More To Repudiate Terrorism

The Boston Globe reports that yesterday in commemoration of 9/11, there was an "unusually candid, two-hour conversation among many of the most important religious leaders in Massachusetts, including rabbis, imams, and bishops, as well as several dozen clergy and lay leaders" that urged the Islamic community to be more vocal in distancing itself from those who support violence and terrorism. Some Muslims at the meeting suggested that the media had not adequately covered voices within the Muslim community that do condemn violence. The meeting also covered other concerns, such as Muslim fears of discrimination and Jewish concerns over anti-Semitism.

More Limits On Jurisdiction Of Israel's Rabbinic Courts

In another blow to the jurisdiction of rabbinical courts, Israel's High Court of Justice ruled yesterday that rabbinical courts do not have jurisdiction to grant a divorce to a couple where only one of the spouses is Jewish. The Jerusalem Post reports that the case had been pending for ten years while the parties lobbied the Knesset for legislation that would specifically grant religious courts jurisdiction over mixed marriages. The decision turned on an interpretation of the 1953 Rabbinical Court Adjudication Law (Marriage and Divorce). (See prior related posting.)

Pentagon Chapel Is Busy Venue

Yesterday's Washington Post profiles the chapel at the Pentagon building, constructed after the 9/11 attack on the building. No permanent symbols of particular religions appear in the chapel, and its stained glass windows all have secular themes. Many faiths use it, and their symbols are brought out for their services. On Fridays, the chapel is busy: Catholic Mass at 11:30, a Jewish service at 12:30 and an Islamic service at 2.

Boston Court Refuses To Apply Anti-SLAPP Law To Mosque's Defamation Suit

A decision that is particularly interesting as we today commemorate the anniversary of 9/11 has just become available on LEXIS, even though it was handed down almost 8 weeks ago by a state trial court in Boston. Islamic Society of Boston v. Boston Herald, Inc., 2006 Mass. Super. LEXIS 391 (Super. Ct., Suffolk Co., July 20, 2006), grows out of efforts of the Islamic Society of Boston (ISB) to build a new mosque in Roxbury on land that was part of an urban redevelopment project. The mosque purchased land from the Boston redevelopment authority for the mosque. (See prior posting.) However a media campaign and litigation in opposition to the mosque developed by individuals who asserted that ISB was directly connected to and funded by radical terrorist organizations. This publicity prevented ISB from raising sufficient funds to finally build the mosque.

At that point, ISB and two individuals connected with it brought a defamation action alleging that their public vilification damaged their reputation and led to donors being unwilling to contribute funds to ISB. Defendants in the case responded by asserting that the defamation action is barred by Massachusetts' anti-SLAPP statute -- a law designed to prevent use of lawsuits against citizens who petition the government on a matter under review, or to encourage such review. In this decision, the court holds that the anti-SLAPP law does not bar the defamation action because the challenged statements were made to turn public opinion against ISB, and not to affect or obtain government review of the mosque project.

The court concluded: "The instant case not only involves a claim for libel but it also touches on the right to the free exercise of one's religion: The Complaint ... alleges that ... that [plaintiffs] were targeted because they were Muslim, in violation of their civil rights. To prevent them from pursuing relief at this early juncture ... would come dangerously close to applying [the anti-SLAPP law] in an unconstitutional manner."

No Immunity For Principal In Recess Bible Reading Case

L.W. v. Knox County Board of Education, 2006 U.S. Dist. LEXIS 64138 (ED TN, Sept. 6, 2006), is a suit by a Christian 5th grade student at Karns Elementary School in Knox County, Tennessee, challenging the school's policy that precludes him from informally reading and discussing the Bible with fellow students during recess. The suit alleges violations of the student's First Amendment rights. In response, the principal of Karns Elementary School filed a $3 million counterclaim alleging libel and slander. In this opinion, a federal district judge dismissed the principal's counterclaim on jurisdictional grounds and held that the principal did not have qualified immunity in the student's lawsuit against her. The school claims that the denial of the student's rights came from a misunderstanding about the kind of Bible study that was being proposed. (See prior posting.) The court found that "L.W.'s right to read and discuss the Bible at recess with his friends is a clearly established right under the First Amendment."

Indian Government's Haj Subsidy Debated

Yesterday's Times of India carried an interesting debate on whether the subsidy that the Indian government gives to Haj pilgrims should be withdrawn. B. N. Shukla says yes, arguing that the subsidy violates provisions in the Indian constitution prohibiting the government from giving benefits to one faith to the detriment of others. Sociologist Imtiaz Ahmad says no, arguing that the government in fact has been subsidizing practices of other religious communities in various ways, so the Haj subsidy is merely an issue of equal treatment.

The Haj begins on December 29, 2006. The Allahabad High Court has told the central government and the government of Uttar Pradesh that, pending a final hearing, they may no longer pay a subsidy for Haj pilgrims. The subsidy now comes in the form of reduced airfares on Air India or Indian Airlines. (Times of India.) The court's decision however permits the government to continue to provide for the safety and well being of religious pilgrims. (India eNews.)

Recent Articles and Book On Law, Religion and Politics

From NELLCO:

• Paul Robinson, et. al., Shari'a, Legality, and the Freedom to Invent New Forms: Americans Drafting an Islamic Model Penal Code (July 28, 2006).

From SmartCILP:

• Kent Greenawalt, David C. Baum Memorial Lecture on Civil Rights and Civil Liberties. Objections in Conscience to Medical Procedures: Does Religion Make a Difference?, 2006 University of Illinois Law Review 799-825.
• Alexandra R. Harrington, Resurrection From Babel: The Cultural, Political, and Legal Status of Christian Communities in Lebanon and Syria and Their Prospects for the Future, 13 Tulsa Journal of Comparative & International Law 217-248 (2006).
• Melynda J. Price, Litigating Salvation: Race, Religion and Innocence in the Karla Faye Tucker and Gary Graham Cases, 15 Southern California Review of Law and Social Justice 267-298 (2006).

New Book:

• Ryan Sager, The Elephant in the Room: Evangelicals, Libertarians, and the Battle to Control the Republican Party, Wiley (August 25, 2006).

Religion and Candidates For Texas Governor

An article in today's San Antonio Express-News explores the role of religious faith in Texas' gubernotorial race among 5 candidates. The candidates differ significantly in their emphasis. Democrat Chris Bell says: "Jesus never said, 'Heal the sick unless politics gets in the way'" Republican incumbent Rick Perry's campaign replies: "Liberal Democrats tend to view compassion by how many people are on the welfare rolls or getting assistance from the state." And independent candidate Kinky Friedman says: "If you're not doing good, I don't think any religious activity makes a lot of sense."

Malaysia Human Rights Official Suggests New Religious Affairs Ministry

In Malaysia that has been racked with religious controversy recently, Tan Sri Abu Talib Othman, chairman the Human Rights Commission of Malaysia, has suggested that country create a Religious Affairs Ministry to deal with disputes between different religions or issues that cannot be resolved within a religious group. The Star (Malaysia) today reports that Abu Talib also called for repeal current laws that deny access to the courts.

FLDS Leader Seeks Return Of Seized Records

Arrested leader of the Fundamentalist Church of Jesus Christ of Latter Day Saints (FLDS), Warren Jeffs, is asking a federal court in Las Vegas, Nevada to order a return of papers, laptops and recording devices seized from his vehicle, claiming that they are protected by the First Amendment's Free Exercise clause. Today's Salt Lake (UT) Tribune reports that Jeffs' attorney, Richard Wright, says the items are confidential religious writings and teachings of the FLDS, as well as privileged communications with FLDS members. FBI agents say that among the items found when Jeffs was arrested were names of people who had sheltered the leader of the polygamous sect while he was a fugitive on the FBI's "most wanted" list.

Establishment Clause Claim Against Veteran's Affairs Department Survives

Last week, in Freedom From Religion Foundation v. Nicholson, (WD WI, Sept. 5, 2006), a Wisconsin federal district court denied a motion to dismiss an Establishment Clause lawsuit against the Department of Veterans Affairs brought by the Freedom From Religion Foundation. The suit challenges the VA's integration of chaplain services into patient medical care. Each VA medical center patient is given a spiritual and pastoral care screening to determine whether to offer pastoral care for a "spiritual injury or sickness". The court held that the language in the VA's spiritual assessment form that links a patient's spiritual health to his or her physical health could demonstrate that the VA impermissibly favors religion over non-religion by sending a message to non-religious veterans that they might not recover fully if they do not believe that spirituality plays an important role in their treatment. It may also impermissibly entangle government and religion. The holding permits the parties to present evidence so the court can determine whether or not the VA chaplaincy program is unconstitutional or is instead an appropriate accommodation of Free Exercise rights of patients. (See prior related posting.)

This Week's Prisoner Free Exercise Cases

In Gillard v. Kuykendall, 2006 U.S. Dist. LEXIS 62291 (WD AR, Aug. 30, 2006), an Arkansas federal district judge accepted the recommendation of a magistrate judge and refused to dismiss a prisoner's claim that his free exercise rights were violated when he was required to mop and clean his cell every day, including his Sabbath day.

In Mark v. Gustafson, 2006 U.S. Dist. LEXIS 62376 (WD WI, Aug. 30, 2006), a Wisconsin federal district court rejected First Amendment and RLUIPA claims by a Wiccan prisoner whose "magic seals" were removed from his prison cell walls and door by prison officials.

In Shaka Zulu Acoolia v. Angelone, 2006 U.S. Dist. LEXIS 62574 (WD VA, Sept. 1, 2006), a Virginia federal district court rejected First Amendment and RLUIPA claims by a Rastafarian prisoner who was refused a strict vegan diet and instead served the prison's vegetarian Alternative Entree Menu that includes eggs, milk and sweets.

In Jackson v. Department of Correction, 2006 Mass. Super. LEXIS 389 (Middlesex County, Aug. 25, 2006) a Massachusetts Superior Court judge found that the state's Department of Corrections violated RLUIPA by failing to provide an Imam to perform jum'ah services at MCI-Shirley every Friday, and by having female correctional officers in non-emergency situations pat-frisk male Muslim inmates (including touching of the inmate's genital or anal areas). These practices were also found to violate a Massachusetts statute that requires equal treatment of prisoners who are not being disciplined. (See prior related posting.)

In Kaufman v. McCaughtry, (7th Cir., Sept. 7, 2006), the U.S. 7th Circuit Court of Appeals affirmed a trial court's holding that prison officials who denied atheists the right to form a study grope were entitled to qualified immunity because prior precedents were not clear on whether atheism was to be treated as a religion.

Saudi Religious Police Ban Sale of Dogs and Cats

In Saudi Arabia, the Muttawa, or religious police, have banned the sale of dogs and cats in the cities of Jiddah and Mecca. The Associated Press reported Friday that religious authorities have asked city officials to help them enforce the ban . Dogs are considered unclean in Muslim tradition, and generally pets are seen as a sign of unwanted Western influence. The inclusion of cats in the ban is puzzling. One of the Prophet Muhammad's closest companions always carried a kitten and took care of it.

Mandatory Boy Scout Membership Presentation Is Not Discriminatory

Oregon law prohibits religious discrimination (as well as discrimination on various other grounds) against any person in any public elementary or secondary school. On Friday, the Oregon Supreme Court in Powell v. Bunn (Sept. 8, 2006) held that requiring elementary school students to attend a presentation at which the Boy Scouts provided information and encouraged boys to join did not amount to discrimination against a student who was precluded from joining because the scouts limit membership to those who believe in God. Justice Kistler dissented. The case was discussed yesterday by Oregon Live.

Challenge To IL Requirement On Dispensing of Contraceptives Moves Ahead

On Wednesday, an Illinois federal district court held that a number of pharmacists as well as Walgreens (the former employer of five of them) can proceed with their declaratory judgment actions against the state of Illinois challenging a rule promulgated by the Illinois Department of Financial and Professional Regulation that requires pharmacies to dispense emergency contraceptives when presented with a prescription for them. Illinois takes the position that the rule applies to every pharmacist, even if filling the prescription would violate his or her moral or religious beliefs. This led Walgreens to change its former policy that had permitted individual pharmacists who had religious objections to refer the prescription on to another pharmacist at the same store or one close by. (See prior posting.)

In Menges v. Blagojevich, 2006 U.S. Dist. LEXIS 63671 (CD IL, Sept. 6, 2006), the court held that plaintiffs alleged sufficient facts to possibly show that Illinois' rule is not a neutral rule of general applicability. The court held that the case should move to trial. Plaintiffs claim that the Illinois rule was targeted at pharmacists to force them to either surrender their religious beliefs or else leave the practice of pharmacy, and thus the rule is subject to strict scrutiny review by the court. The court held that plaintiffs’ pleadings also adequately raise the issue of whether the Illinois rule was inconsistent with Title VII of the federal 1964 Civil Rights Act. The court however dismissed Walgreens request for a declaratory judgment that its prior pharmacist referral policy complies with Title VII and the Illinois pharmacy rules.

The Associated Press yesterday discussed the decision, as did Blog from the Capital.

Pro-Life Minister's Suit To Protect Protest Rights Moves Forward

As a previous posting reported, on August 31, an Illinois federal district court granted a preliminary injunction against enforcement of Granite City’s ordinance that prohibits signs larger than 8 ½ x 11 along any parade route. The suit was brought by a minister and members of his family who wanted to carry anti-abortion signs large enough for politicians marching in the parade to see. Now in Michael v. City of Granite City, 2006 U.S. Dist. LEXIS 63638 (SD IL, Sept. 6, 2006), the court issued a decision dealing with a number of procedural issues as the case moves on. In addition to challenging the city’s sign limits, the suit also claims that police are restricting plaintiffs’ speech and free exercise rights by a policy of not protecting them against assaults by onlookers who disagree with their pro-life views. The court denied defendants’ motion to dismiss the suit on standing, inadequate pleading and immunity grounds.

Hindu Temple In India Wants Its Own Township

In the Indian state of Andhra Pradesh, there is growing tension between Christians and Hindus over Christian conversionary activities around the Sri Venkateswara temple that attracts over 50,000 visitors per day. Thursday’s Indian Catholic reports that Tirumala Tirupati Devasthanam (TTD), the administrative board that manages the temple, passed a resolution in July to ask the state government to create a new "religious township" out of the 332-square kilometer area around the temple and place it under temple jurisdiction. This would give the temple a status similar to Vatican City. Also, State Minister for Endowments J.V. Diwakar Reddy said in August that the state government is considering a new law to prohibit propagation of any religion other than Hinduism in Tirumala where the temple is located. Violators would risk to up to 2 years in prison and a fine of up to 2,000 rupees (US$43). And TTD is being asked to fire the non-Hindu employees that work at the temple site (several Muslims and 15 to 20 Christians).

Cobb County Invocations OK; But Not Planning Comm'n. Choice Of Clergy

Largely echoing the reasoning in his denial of a preliminary injunction, a Georgia federal district judge has upheld the practices of the Cobb County (GA) Commission in opening its sessions with prayer. In Pelphrey v. Cobb County, Georgia, Civil Action No. 1:05-CV-2075-RWS (ND GA, Sept. 8, 2006) [available through PACER], the court held that legislative prayer violates the Establishment Clause only if there is an impermissible motive in the selection of clergy; use of invocations to promote the beliefs of one religious sect or to disparage the beliefs of another; or maintenance of a practice that conveys governmental preference of one religious view over others. The court found that neither the identity of those offering invocations, nor the sometimes sectarian references in their prayers, were sufficient to violate the Establishment Clause. The court similarly upheld the selection procedures used by Cobb County in locating individuals to deliver invocations, even though it resulted in 96% of those delivering invocations being Christian.

However in a parallel challenge to the invocation policy of the Cobb County Planning Commission, the court found that its policies in 2003-04 for selecting individuals to deliver invocations did violate the Establishment Clause. "[C]ertain faiths were categorically excluded from the list of prospective speakers based on the content of their faith."

Today’s Atlanta Journal Constitution discusses the decision.

UPDATE: The opinion is now available on LEXIS at 2006 U.S. Dist. LEXIS 64294 (ND GA, Sept. 8, 2006),

California Mayor Sees Christian-Shiite Spiritual War

In Redding, California on Thursday, a ceremony titled "One Nation Under God" was held on the Shasta County Courthouse steps in commemoration of the Sept. 11, 2001 terrorist attacks. The event was co-sponsored by the county Sheriff's Department, the Shasta County Jail Chaplaincy, the Marshal's Office, PrayNorthstate, the Good News Rescue Mission and Sysco Foods. Friday’s Redding Record Searchlight reports that at the ceremony Mayor Ken Murray spoke about a war to the spiritual death between Christianity and Shiite Muslims.

Murray says he distinguishes between "mainstream" practitioners of Islam, and Shiites. He says, "Since the Crusades, there's been a spiritual battle for the hearts and minds of people. I think it's a historical reality, and the rubber's meeting the road again. Either the Judeo-Christian philosophy will survive or the Islamic philosophy will survive." Mayor Murray says the noontime event was not about government sponsorship of religion; rather it was about free speech by individual officials. Murray’s remarks apparently included allegations that Shiites believe that it is acceptable to lie, cheat, steal and kill, as long as it ultimately glorifies Allah. He added: "Folks, they're not like us. They're not like us at all, and for them, their war has been going on for 1,200 years."

UPDATE: Sacramento-area Muslims are asking for an apology from Mayor Murray. (Associated Press, Sept. 11).

2005 Bankruptcy Law Makes Charitable Giving Difficult For Debtors

A press release from the National Association of Consumer Bankruptcy Attorneys describes a recent decision by a federal bankruptcy judge in New York that makes it difficult for individuals going through Chapter 13 bankruptcy proceedings to meet religious obligations to tithe. In In re: Diagostino and Diagostino, Case No. 06-10384, (Bkrptcy., ND NY, Aug. 28, 2006), a bankruptcy judge interpreted Sec. 102 of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 to preclude the inclusion of tithes to a church or other charitable donations as "reasonably necessary" expenses. So unsecured creditors must be paid off under the court-approved repayment plan before charitable contributions can be made. The only exceptions are for situations such as a minister whose employment contract requires tithing. An article in today's Deseret (UT) News points ot that this decision undercuts the Religious Liberty and Charitable Donation Protection Act of 1998 that allowed tithing by those going through bankruptcy. [Thanks to Ross Heckman via Religionlaw for the information.]

Evangelicals And American Foreign Policy

The current issue of Foreign Affairs magazine contains a long and interesting article by Walter Russell Mead on evangelicals and U.S. foreign policy. The article, God's Country?, argues that changes in contemporary Protestantism are changing American foreign policy. Mead traces the role of religion in U.S. public life. His analysis carefully distinguishes three different strands of American Protestantism:

The three contemporary streams of American Protestantism (fundamentalist, liberal, and evangelical) lead to very different ideas about what the country's role in the world should be. In this context, the most important differences have to do with the degree to which each promotes optimism about the possibilities for a stable, peaceful, and enlightened international order and the importance each places on the difference between believers and nonbelievers. In a nutshell, fundamentalists are deeply pessimistic about the prospects for world order and see an unbridgeable divide between believers and nonbelievers. Liberals are optimistic about the prospects for world order and see little difference between Christians and nonbelievers. And evangelicals stand somewhere in between these extremes....

Evangelicals are likely to focus more on U.S. exceptionalism than liberals would like, and they are likely to care more about the morality of U.S. foreign policy than most realists prefer. But evangelical power is here to stay for the foreseeable future, and those concerned about U.S. foreign policy would do well to reach out. As more evangelical leaders acquire firsthand experience in foreign policy, they are likely to provide something now sadly lacking in the world of U.S. foreign policy: a trusted group of experts, well versed in the nuances and dilemmas of the international situation, who are able to persuade large numbers of Americans to support the complex and counterintuitive policies that are sometimes necessary in this wicked and frustrating -- or, dare one say it, fallen -- world.

The full article is definitely worth reading.

7th Circuit Hears Arguments In Indiana Legislative Prayer Case

The Associated Press reports that yesterday the U.S. 7th Circuit Court of Appeals heard arguments in Hinrichs v. Bosma, a case in which a federal district court banned the Indiana House of Representatives from opening its sessions with sectarian prayer. (See prior posting.) Interestingly, the U.S. Department of Justice filed a brief supporting Indiana House Speaker Brian Bosma, and participated in oral argument. The brief argued that the trial court had imposed too strict a standard, effectively banning any mention of Jesus Christ or other sectarian references. The brief said that opening prayers in the U.S. Congress often have some mention of a specific deity. Today's Indianapolis Star reports on details of oral argument that focused in part on whether prayers offered by legislators should be considered personal speech or government speech. Meanwhile Indiana House officials plan to try to raise money from the public to pay the legal fees involved in the appeal, instead of continuing to use taxpayer funds for the costs of the private law firm hired to represent House members in the litigation. (Indianapolis Star.)

House Committee Approves Public Expression of Religion Act

By voice vote yesterday, the House Judiciary Committee approved H.R. 2679, the Public Expression of Religion Act. The bill, which now goes to the full House of Representatives, would limit relief in Establishment Clause claims to issuance of an injunction, and would deny the award of attorneys' fees and expenses to plaintiffs who win Establishment Clause lawsuits. Americans United For Separation of Church and State strongly criticized the Committee's action. AU Executive Director Rev. Barry W. Lynn said: "This bill is nothing more than an attempt to scare people away from having their day in court. The House Judiciary Committee should be ashamed of itself for passing such a blatantly un-American scheme."

UPDATE: The vote in the House Judiciary Committee to approve the bill was 7-5, along party lines, with Republicans in favor and Democrats against. (Associated Baptist Press.)

Secular Coalition Rates Congress Members' Voting Records

Yesterday, the Secular Coalition for America released its ratings of members of the 109th Congress based on their records on ten key votes in each house. Seven members of the House and 18 Senators earned a perfect score for their support for separation of church and state and protection of minority rights. SCA Director Lori Lipman Brown said: "With the political strength of the religious right and the irrational demonizing of the nontheist community, I am very proud of these members of Congress." The Scorecard for every House and Senate member is available at SCA's website.

Storefront Churches and Decaying Downtowns A Municipal Worry

The Raleigh (NC) News and Observer yesterday focuses on efforts by small North Carolina towns to keep churches from renting inexpensive vacant storefronts in decaying downtown areas. Last month, the Kenly, NC Town Council imposed a 60-day moratorium on new churches in the downtown area. Proponents of these moves say that churches prevent the economic redevelopment of small downtown areas. A Kenly Town Council member said town officials were unaware of the federal Religious Land Use and Institutionalized Persons Act that makes these kinds of restrictions on churches particularly problematic. She said they will now consider the impact of RLUIPA as they draft a new ordinance dealing with the issue on a more permanent basis.

Cayman Officials Kept In Dark By UK Over Human Rights Convention Applicability

The United Kingdom is responsible for the international relations of the Cayman Islands. In February 2006, the UK extended the European Convention on Human Rights, and the right to petition the European Court of Human Rights, to the Cayman Islands (as well as a number of other territories). However, according to today's Cayman Net News, Britain never bothered to inform the Cayman Islands Human Rights Commission that the action had been taken. HRC commissioners apparently found out about the action when a dispute over whether or not the Convention applied in the Cayman Islands appeared in the press.

Elementary School Enjoined In Gideon Bible Distribution

A federal district court has granted a preliminary injunction to elementary school parents to prohibit Annapolis, Missouri's South Iron R-1 School District from allowing the Gideons to distribute Bibles to elementary school students on school property during the school day. In Doe v. South Iron R-1 School District, (ED MO, Sept. 5, 2006), the court rejected the school board's argument that denying groups the right to distribute Bibles, while permitting other kinds of literature to be distributed, would amount to unconstitutional viewpoint discrimination. Instead the court found that it was highly likely that plaintiffs would succeed in proving that the school's policy was adopted for the purpose of promoting Christianity, and was thus in violation of the Establishment Clause.

The suit was originally filed to challenge the school board's decision to permit the Gideons to distribute Bibles in the classroom to fifth graders. While the litigation was pending, the school board adopted a new policy that permitted distribution of any kind of literature, including Bibles, to students in any grade, on 48 hours notice, with distribution being limited to the hallway in front of the administrative offices and the cafeteria area during limited time periods.

National Days Of Prayer For 9/11 Anniversary Proclaimed

On Tuesday, as the fifth anniversary of the 9/11 terrorist attacks approach, President George W. Bush issued a Proclamation declaring September 8 through 10 as National Days of Prayer and Remembrance. The days are to "honor the heroism of the police officers, firefighters, rescue personnel, members of the military, and private citizens who responded selflessly in the face of terror. We also honor the courage and spirit of the mothers and fathers, sons and daughters, brothers and sisters, and husbands and wives who continue to grieve for their irreplaceable loss."

The Proclamation concludes with this request: "I ask that the people of the United States and their places of worship mark these National Days of Prayer and Remembrance with memorial services, the ringing of bells, and evening candlelight remembrance vigils. I also invite the people of the world to share in these Days of Prayer and Remembrance."

2nd Circuit Holds Evangelicals Not "Vulnerable Victims" In Fraud Case

In a fascinating decision yesterday, the U.S. Second Circuit Court of Appeals rejected a trial court's application of the Federal Sentencing Guidelines to enhance the sentence of two defendants who had been convicted of carrying out a wire fraud scheme directed particularly at evangelical Christians. In United States v. Dupre, (2d Cir., Sept. 6, 2006), the trial court had found that the advance fee fraud had been aimed at particularly "vulnerable victims", concluding that the "scheme was imbued with religious elements. It asked participants to have faith, to accept what they were told, to not ask questions, to pray for the success of the project, and to plan on doing good works with the payout that they receive. It was described as a plan in which there would be a redistribution of wealth from the wicked to God’s people."

The trial court used that finding to enhance the offense by two levels, as permitted by U.S.S.G. § 3A1.1(b). However, the Second Circuit held:

While we recognize that a fraud grounded in religious themes may pose an especially effective threat, ... membership in religious groups cannot, standing alone, make victims "vulnerable" for purposes of the enhancement, even where a fraud involves reliance on religious themes or imagery.... We have no reason to believe that evangelical Christians as a class are "unusually susceptible" to fraud.

An Associated Press report yesterday gives additional background on the case.

Abortion Protesters Claim Arrests Violate Their Religious Freedom

In Richmond, Virginia last week, two abortion protesters filed suit in federal district court alleging that an off-duty city police officer hired by Richmond's Medical Center for Women infringed their free exercise and free speech rights. Richmond's Style yesterday reported on the lawsuit. The protesters' claims are based on their being cited three times since 2004 for violating Virginia's disorderly conduct law and Richmond's noise ordinance. In addition to claiming that the city ordinance is unconstitutionally vague because it sets no standard for when noise is too loud, the complaint (full text) also alleges that enforcement of the laws prevents the demonstrators from carrying out a tenet of their religious faith in violation of their free exercise rights. The complaint alleges that plaintiffs as Christians "sincerely believe they are discharging a religious duty by publicly proclaiming and orally communicating their beliefs, particularly with respect to their beliefs on the topic of abortion."

3rd Circuit Backs Away From Its Narrow Interpretation of Title VII Ministerial Exception

Yesterday, the U.S. Third Circuit Court of Appeals, upon rehearing, changed its mind about the scope of the "ministerial exception" in Title VII employment discrimination cases. It joined seven other circuits that have considered the issue and held that the First Amendment precludes courts from interfering in any decisions of religious organizations about who will perform spiritual functions and how those functions will be divided. The case, Petruska v. Gannon University, (3rd Cir., Sept. 6, 2006), was set for rehearing after it was determined that the judge who wrote the majority opinion (Becker, J.) in the earlier 2-1 ruling had died after the opinions were completed, but before they were filed. In its earlier opinion in the case, the 3rd Circuit had ruled that the ministerial exception applies only where alleged discrimination is based on religious belief or doctrine, and not where the discrimination is based on some non-religious ground such as gender bias. Now, however, the 3-judge panel unanimously held that the exception applies to any claim, the resolution of which would limit a religious institution’s right to choose who will perform particular spiritual functions. However, the court remanded for further consideration the plaintiff's breach of contract claim against Gannon University.

Today's Inside Higher Education reports on the decision.

NY High Court Hears Arguments On Requiring Insurance Coverage For Contraceptives

Yesterday, New York's highest court, the Court of Appeals, heard arguments in Catholic Charities of the Diocese of Albany v. Serio, a case challenging New York's Health and Wellness Act that requires employers' health insurance plans to cover contraceptives. Today's Albany Times Union reports on the "fast paced" arguments over whether the legislature can define narrowly what it means to be a religious employer. The statute exempts churches and religious schools from coverage, but not social service agencies or hospitals. (See prior posting.) The suit brought by Catholic Charities and two Baptist churches argues that the statute is unconstitutional, infringing plaintiffs' rights of speech, association and free exercise of religion. Sister Maureen Joyce, CEO of Catholic Charities in Albany, says: "We're not saying our employees can't use contraceptives. We're saying as an employer we should not be mandated by the state to provide contraceptive services."

Bush's Speech On the War On Terror-- Has He Avoided A "Religious War"?

President George W. Bush yesterday delivered a major speech on the Global War on Terror (full text) to the Military Officers Association of America. In it, he faced the problem with which he has struggled ever since 9/11-- how to define Islamic extremism in a way that avoids turning the war on terror into a religious war. Here are some excerpts from the speech:

The terrorists who attacked us on September the 11th, 2001 ... kill in the name of a clear and focused ideology.... [They] ... are violent Sunni extremists... driven by a radical and perverted vision of Islam that rejects tolerance.... They hope to establish a violent political utopia across the Middle East, which they call a "Caliphate" -- where all would be ruled according to their hateful ideology....

This caliphate would be a totalitarian Islamic empire encompassing all current and former Muslim lands, stretching from Europe to North Africa, the Middle East, and Southeast Asia.... We know what this radical empire would look like.... Under the rule of the Taliban and al Qaeda, Afghanistan was a totalitarian nightmare -- a land where women were imprisoned in their homes, men were beaten for missing prayer meetings, girls could not go to school, and children were forbidden the smallest pleasures.... Religious police roamed the streets, beating and detaining civilians for perceived offenses. Women were publicly whipped. Summary executions were held in Kabul's soccer stadium in front of cheering mobs....

The goal of these Sunni extremists is to remake the entire Muslim world in their radical image. In pursuit of their imperial aims, these extremists say there can be no compromise or dialogue with those they call "infidels" -- a category that includes America, the world's free nations, Jews, and all Muslims who reject their extreme vision of Islam....

[W]e also face the threat posed by Shia extremists... This Shia strain of Islamic radicalism is just as dangerous, and just as hostile to America, and just as determined to establish its brand of hegemony across the broader Middle East.... In 1979, they took control of ... the nation of Iran, subjugating its proud people to a regime of tyranny, and using that nation's resources to fund the spread of terror and pursue their radical agenda.

Two Interesting New Online Sites Created

Two new interesting websites have just come on line. The first is Faithful Democrats. In an introductory posting, Tennessee Senator Roy Herron says:

I am tired of politicians, partisans, and preachers spelling God "G-O-P." But make no mistake — regardless of how wrong they are or how false their doctrine is, they have been frighteningly effective. Now many Americans think Jesus never rode a donkey and today rides only an elephant. The truth is, God cannot be held hostage by any political party. And American Christians should not be either.

The AP yesterday reported on the Democrats' new online initiative. [Thanks to Mainstream Baptist for the lead.]

The second entry into cyberspace is a new blog from the Alliance Defense Fund (news release), called ConstitutionallyCorrect.com. The blog has been created to focus on issues of concern to ADF, such as religious freedom in order to be able to spread the Gospel, the sanctity of human life and traditional family values. (See ADF's website.)

Both sites have been added to Religion Clause's sidebar.

Little Rock Council Moves To Non-Sectarian Invocations

Little Rock, Arkansas city council has decided to permit only non-sectarian prayers to open their meetings after a resident complained about sectarian Christian invocations. City attorney Tom Carpenter gave city council a memo on permissible practices. Some have suggested that city council should hire its own chaplain to give opening prayers, according to a report yesterday by KTAV-TV.

Air Force Academy Adds Secular Group To Extracurricular Program

The U.S. Air Force Academy has expanded its extracurricular Special Programs In Religious Education by adding a secular organization to the list of groups that participate. Free Thinkers of Colorado Springs hopes to bring prominent scientists, authors and academics to the Academy for weekly discussions. The AP yesterday reported on these developments, indicating that Free Thinkers describes itself as "a haven for people moving away from religious dogma." The Air Force Academy has been criticized for imposing Christian doctrine on its cadets. A lawsuit on those charges is pending.

Baltimore Prayer Garden OK'd Over Preservationist Objections

In Baltimore, Maryland, a housing department hearing officer has upheld the decision of Housing Commissioner Paul Graziano who decided that the Archdiocese of Baltimore can tear down a 100-year hotel building in order to build a prayer garden. WBAL-TV reports today that historic preservationists oppose demolition of the historic building located next to a remodeled church. However, they were unsuccessful in their argument that housing authorities should have made their decision without considering the impact of the federal Religious Land Use and Institutionalized Persons Act.

Russian Supreme Court Upholds Order To Tear Down Mosque

On Tuesday, Interfax reported that the Russian Supreme Court has upheld an order by the Sovetsky District Court of Astrakhan that required the local Muslim community to tear down a partially-constructed mosque that was being built without a permit. The Russian Federal Environmental, Technological, and Nuclear Control Service had banned the construction because it was too near a high-voltage power transmission line.

Scholar In Yemen Says Presidential Election Violates Islamic Law

In Yemen, a country that is struggling to have meaningful presidential elections this month, a Muslim cleric, Salafi scholar Abu Al Hassen Al Maribi, says that democratic elections are contrary to the teachings of Islam. He says that under Islamic law, "to compete with the ruler is an illegitimate act". Gulf News today reports that the statement was made during a rally supporting the re-election of current President Ali Abdullah Saleh. Not surprisingly, the campaign of opposition candidate Faisal Bin Shamlan strongly criticized the cleric's ruling, saying: "This is an affront to the constitution which provides for democracy, the multi-party system and peaceful transfer of power. And releasing such fatwas means non-recognition of constitution, laws in effect and elections." Opposition leaders called for the Supreme Committee for Elections and Referendum to ban such fatwas.

Israel To Appoint 10 More Rabbis To Conversion Courts

Yesterday's Jerusalem Post reports that ten new rabbinic judges will shortly be appointed to fill vacant places on the country's Jewish conversion courts. In recent years, rabbis have been slow to approve potential converts, and some say that the current 25 judges have little to do. There is speculation that the new appointments are an attempt to loosen up on standards for approval of converts. However, apparently some of the new judges will specifically serve the haredi (ultra-orthodox) community that has been increasingly critical of the conversion authority as not being strict enough in its screening of converts. The new appointments do not appear likely to solve the biggest problem facing the conversion courts-- screening 280,000 non-Jewish immigrants from the Former Soviet Union who may wish to convert. None of the new judges speak Russian. Rabbinic judges must determine that a potential convert is sincere in his or her desire to convert, before the conversion can be approved. Deciding this through a translator's filtering of testimony is difficult.

Azeri Women Call For Change In Rules On ID Photos

In the largely Shiite Muslim country of Azerbaijan, government regulations prohibit women from wearing a hijab, or religious headscarf, in photos on their identification documents. Now activists at a meeting of the Center for the Protection of Freedom of Conscience and Religion are calling for a change in the rules. Yesterday's Middle East Times says that women who refuse to remove their headscarves for passport and other identification photos lack equal access to jobs, health care, the right to travel and the right to vote.

Chinese Police Bulldoze Unregistered Catholic Church

China's attempts to require registration of places of worship has led to a confrontation on the island of Pingtang in Fujian province in southeast China. About 10,000 Catholics live on the island. They have refused to register with the government because they do not want to be controlled by the Patriotic Association that is trying to create a Catholic church that is not connected to the Vatican. Asia News yesterday reported that on Sept. 1, about 500 Chinese police brought in bulldozers and destroyed an illegal church building that had been completed less than two months ago at a cost of some $50,000. Police also warned that they plan to destroy another church that is being built in Ao Qian village. (See related prior posting.)

Jacksonville Sued Over Day of Faith Program

While they did not succeed in getting a court to ban the event from taking place, the American Atheists is now suing to recover for the city and its schools the $101,000 Jacksonville, Florida spent for its recent Day of Faith anti-violence rally, and to prevent future events of the same kind. The ACLU has also requested records regarding the program. The Florida Times-Union and WAWS Fox30 both report on the developments. The city has had 103 homicides so far this year. Mayor John Peyton promoted A Day of Faith: Arming Our Prayer Warriors to help combat that homicide trend. Some complain that the rally was too religious in nature for the city to have sponsored. The mayor, however, says that all citizens were invited and that secular non-profit organizations were heavily involved in the program as well.