Catholic Leader Calls For Civil Disobedience On Pledge

Last week, a California federal district court, following precedent set by the Ninth Circuit Court of Appeals, held that recitation in school classrooms of the Pledge of Allegiance, containing the phrase "under God", violates the Establishment Clause. (See prior posting.) While many religious leaders have been critical of the decision, William Donohue, President of the Catholic League for Religious and Civil Rights has been particularly outspoken. In a release issued last Wednesday, he said:

Now that U.S. District Judge Lawrence Karlton has said he would sign a restraining order banning the recitation of the Pledge of Allegiance in some California school districts, the time has come for patriotic teachers in those schools to practice civil disobedience. They need to lead their students in the Pledge, bellowing the dreaded words "under God." But nothing should be done until the television cameras are in place—the sight of teachers being handcuffed by the police would be an invaluable teaching moment.

Settling this issue in court is fine, but it is inadequate: it’s time to shock the conscience of the nation by bringing this matter directly into their living rooms.

Pres. Bush At Dinner Honoring 350 Years of American Jewish Life

Last Wednesday, President Bush spoke at a dinner in Washington honoring the 350th anniversary of Jewish life in America. His remarks (full text) included the following:

Religious freedom is a foundation of fundamental human and civil rights. And when the United States promotes religious freedom, it is promoting the spread of democracy.... Religious freedom is more than the freedom to practice one's faith. It is also the obligation to respect the faith of others. So to stand for religious freedom, we must expose and confront the ancient hatred of anti-Semitism, wherever it is found....

Under America's system of religious freedom, church and state are separate. Still, we have learned that faith is not solely a private matter. Men and women throughout our history have acted on the words of Scripture and they have made America a better, more hopeful place. When Rabbi Abraham Heschel marched with Martin Luther King, we saw modern-day prophets calling on America to honor its promises. We must allow people of faith to act on their convictions without facing discrimination.

And that's why my administration has started a faith-based and community initiative, to call on the armies of compassion to help heal broken hearts. A few years ago in New York, the Metropolitan Council on Jewish Poverty was discouraged from even applying for federal funds because it had the word "Jewish" in its name. We must end this kind of discrimination if we want America to be a hopeful place.

Miss. Supreme Court Rules On Priest-Penitent Privilege In Discovery

On September 15, the Mississippi Supreme Court in Mississippi United Methodist Conference v. Brown held that a document-by-document review was required in discovery to determine whether particular documents were covered by the priest-penitent privilege. Today's Jackson, Mississippi Clarion-Ledger reports on the case which involves release of United Methodist Church documents to a woman who had filed a $10 million lawsuit against a minister who sexually assaulted her.

Peremptory Removal of Clergy As Jurors Unconstitutional

In Highler v. State, (IN Ct. App., Sept. 15, 2005), an Indiana state appellate court held that the prosecution's use of peremptory challenges in criminal trials to remove all members of the clergy from jury panels "because they're more apt for forgiveness" is unconstitutional. However, it found tha in this case there were other legitimate reasons for the peremptory challenge of an African-American clergyman.

Sabbath Observer Gets Unemployment Compensation

In Guaranteed Auto Finance, Inc. v. Director, ESD (Sept. 14, 2005), an Arkansas court of appeals upheld an administrative agency's award of unemployment compensation to an employee who left his work because the company required he work on Saturday, his Sabbath. The court held that the employee had good cause to leave his job when his religious beliefs conflicted with his employer's requirements.

Bush's Remarks At National Services For Katrina Victims

On Friday, President Bush spoke at the National Day of Prayer and Remembrance Service at the Washington National Cathedral honoring victims of Hurricane Katrina. His remarks (full text) included the following:

In this hour of suffering, we're prayerful. In a wounded region, so many placed their faith in a God who hears and helps. And so many are bringing their grief to a Savior acquainted with grief. Our nation joins with them to pray for comfort and sorrow, for the reunion of separated families, and a holy rest for the ones who died.

Through prayer we look for ways to understand the arbitrary harm left by this storm, and the mystery of undeserved suffering. And in our search we're reminded that God's purposes are sometimes impossible to know here on Earth. Yet even as we're humbled by forces we cannot explain, we take comfort in the knowledge that no one is ever stranded beyond God's care. The Creator of wind and water is also the source of even a greater power -- a love that can redeem the worst tragedy, a love that is stronger than death.

County Will Not Send Judge To Florida Christian CLE Program

Hamilton County, Ohio Commissioners have refused to authorize $1700 to send Cincinnati state court of appeals judge Rupert Doan to a Christian legal conference in Naples, Florida. The Cincinnati Enquirer today reported that even though judges are required to attend continuing legal education programs, this one, the Christian Legal Society's national conference titled Faith at the Crossroads: Following Christ in Law & Life, was turned down by the county commission not because of its religious content, but because of its "exotic Location".

White House On Faith-Based Initiatives and Katrina

The White House has posted on its web site the transcript on an online "Ask the White House" forum in which Jim Towey, Director of the White House Office of Faith-Based and Community Initiatives discusses the role of religious organizations in Hurricane Katrina relief. The posting includes Towey's answers to a dozen different questions from around the country on relief measures and other topics. Here is an example:

Tom, from Gaithersburg, MD writes: Why does huricane releief have to be "faith based". Why can't people withouth "faith" get huricane relief? Thomas Munro

Jim Towey: Hi Tom. Just to be clear, people without faith are equally eligible to receive disaster assistance. There is not a "faith test" for aid. And people very devout in their faith or with no faith at all have been volunteering and helping serve hot meals to the hungry and house those without home. It has been marvelous to watch.

High School Student Suspended For Handing Out Religious Literature

The Staunton, Virginia News Leader reported today on the three-day suspension of a high school student who refused to stop distributing religious literature at her Augusta County public high school. The student, Samantha Weatherholtz , had passed out about 100 leaflets when Fort Defiance High School's Assistant Principal told her to stop. The only comment from school officials was from Assistant Superintendent George Earhart, who said: "I am certainly going to look into it next week. At this point, I do not have anything else to say."

Faith-Based Initiatives, Katrina and the Jewish Community

Liberal Jewish groups have historically opposed President Bush's faith-based initiatives. The Baltimore Jewish Times today reports that the aftermath of Hurricane Katrina has created new concerns for these groups. Synagogues and Jewish day schools that have set up shelters and other relief services will have to decide whether to accept federal aid that is likely to be available to faith-based groups, and Jewish institutions damaged by the hurricane will have to decide whether to accept assistance from FEMA. There also is concern that future Federal aid packages will contain funds for religious groups to provide relief. That could put opponents of faith-based initiatives in the difficult position of opposing disaster relief.

NY College Sued Over Denial Of Access By Religious Speaker

On Sept. 7, the Alliance Defense Fund filed suit alleging First Amendment violations (full complaint) against New York's Ulster County Community College on behalf of an individual who was not permitted to speak on campus about his Christian faith and hand out religious literature. ADF's release on the case explains that the plaintiff, Greg Davis, was first told that he could speak. Later the same day that he was told he would need to submit a facilities use permit application even though he did not intend to make use of any school buildings. Finally, Davis left campus after a different school official informed him that his religious expression was totally prohibited. Davis then filed the use permit application, but it was denied because religious expression does not constitute a "cultural," "educational," "social," or "recreational" activity.

Pledge Decision Condemned By Officials; Appeal Planned

Official reactions were quick to come to Wednesday's federal district court decision from California finding that school classroom recitation of the Pledge of Allegiance containing the phrase "under God" violates the Establishment Clause. (See prior posting.)

U.S. Attorney General Alberto Gonzales issued the following statement:

For more than two hundred years, many of our expressions of national identity and patriotism have referenced God. The Supreme Court, which opens each session by saying "God save the United States and this honorable Court," has affirmed time and again that such official acknowledgments of our Nation's religious heritage, foundation, and character are constitutional. The Department of Justice will continue vigorously to defend the ability of American schoolchildren to pledge allegiance to the flag.

Also, late Thursday, the U.S. Senate voted to condemn the court ruling (S. Res. 243), according to a report by the Associated Press.

Meanwhile, the Knights of Columbus, one of the defendants in the case, announced that it planned an immediate appeal.

Baptist Meeting Examines Religious Liberty

Yesterday, the Baptist Press reported on the recent Baptist Distinctives Conference sponsored by the Southwestern Baptist Theological Seminary. Keynote speaker was Richard Land, president of the Ethics & Religious Liberty Commission of the Southern Baptist Convention. The theme of the Conference was “The First Freedom” of religious liberty. In his remarks, Land said: "The greatest threat to religious freedom in America are secular fundamentalists who want to ghetto-ize religious faith and make the wall of separation between church and state a prison wall keeping religious voices out of political discourse."

Roberts' Testimony On Church-State

The Wall of Separation blog carries an interesting summary of John Roberts' testimony on his church-state views given during his confirmation hearings. One of Roberts' statements:

[The Court] has adhered through thick and thin to the Lemon test, probably because they can’t come up with anything better. But the results sometimes, I think, are a little difficult to comprehend.

Prison Ban On White Supremacist Books Upheld

In Borzych v. Frank, 2005 U.S. Dist. LEXIS 19840 (USDC, WD Wis., Sept. 9, 2005), a Wisconsin federal district court rejected a prisoner's claim that he was wrongfully denied access to several White Supremacist books in violation of his religious rights. The court rejected plaintiff's First Amendment, RLUIPA, and state statutory claims, finding that the prison's "interest in maintaining a safe and secure multi-racial prison environment is served by minimizing plaintiff's ability to flaunt his kinship with a disruptive group whose philosophical ideology promotes racial superiority, encourages violence and disregards social standards."

California District Court Finds Pledge In Classrooms Unconstitutional

Yesterday in Newdow v. Congress of the United States, the United States district court for the Eastern District of California held that the Ninth Circuit's prior decision finding that the recitation of the Pledge of Allegiance in public school classrooms violates the Establishment Clause is binding on the district court. That decision, questioning the inclusion of "under God" in the Pledge, was subsequently reversed by the U.S. Supreme Court because the plaintiff, Michael Newdow, lacked standing. Now the district court applies the prior 9th Circuit holding on the merits in an extremely narrow manner.

First the district court denied standing to Michael Newdow, but found that the other plaintiffs who are parents of school children had standing. On the merits, it held that teacher-led recitation the Pledge in school classrooms violates the Establishment Clause because of the pressure placed on students to recite it, but that reciting the Pledge at school board meetings does not create the same kind of coercion. Finally, in an interesting twist, the Court held that since it stands ready, if requested, to enjoin the recitation of the Pledge in classrooms, the parents who are plaintiffs no longer have any injury in fact. Therefore, their challenge to the constitutionality of 4 U.S.C. Sec. 4, which codifies the wording of the Pledge of Allegiance, is rendered moot.

The New York Times today reports that teachers in the Elk Grove Unified School District, one of the Districts involved in the lawsuit, were told to continue leading students in the pledge because the judge's ruling did not include an injunction.

ACLU Questions Use Of Religion By New Mexico Coach

The Albuquerque, New Mexico Tribune reported yesterday that the New Mexico chapter of the American Civil Liberties Union is again raising concerns that University of New Mexico men's basketball coach Ritchie McKay is inappropriately mixing religion with his recruiting and coaching. This round of complaints was triggered by newspaper accounts of McKay's recruitment of Kansas transfer J.R. Giddens.

The ACLU went public with its concerns after being unhappy with the response it received to an Aug. 4 letter it wrote to McKay and Athletics Director Rudy Davalos. McKay says he never received the ACLU letter, but denies any improprieties. However, McKay says that the pastor of his church will continue to attend practices, because "he has a great relationship with many of our players."

Summary Judgment Denied In Dover Intelligent Design Case

A trial in the evolution/Intelligent Design controversy in Pennsylvania's Dover School District is scheduled to start on Sept. 26. The York Daily Record reported yesterday that U.S. District Judge John E. Jones III on Tuesday denied Dover's request that the case be dismissed before trial through summary judgment.

Ontario Premier Wants To Ban Religious Tribunals; Objections Voiced

According to the Associated Press, Jews and Muslims in Ontario will fight for faith-based tribunals to settle family disputes after Ontario Premier Dalton McGuinty announced on Sunday that he would introduce legislation to ban all religious arbitration in Ontario. McGuinty on Sunday said that religious arbitrations "threaten our common ground." He promised his Liberal Party government would introduce legislation to outlaw them in Ontario. B'nai B'rith Canada is considering a constitutional challenge to the decision that would ban the long-standing use of rabbinical courts to grant divorces and adjudicate other family matters. (See related prior posting.)

Cert Filed In Americorps Religious Funding Case

The American Jewish Congress announced today that it has filed a petition for certiorari in the United States Supreme Court asking it to review the D.C. Circuit Court of Appeals March 2005 decision in American Jewish Congress v. Corporation for National and Community Service. At issue is whether the Corporation for National and Community Service which administers federal Americorps programs may provide education awards to teachers who teach religion as well as secular subjects in religious schools, and whether it may make grants to the religious organizations that oversee those teachers. AJC contends that this violates the Establishment Clause.

New Scholarly Papers Online

On SSRN:
Cornell University Professor Bernadette A. Meyler, The Equal Protection of Free Exercise: Two Approaches and their History .

On Bepress:
McGeorge School of Law Professor Gregory C. Pingree, Rhetorical Holy War: Polygamy, Homosexuality, and the Paradox of Community and Autonomy.

Southwest Missouri State University Professor Kevin Pybas, Two Concepts of Liberalism in Establishment Clause Jurisprudence.

Another 10 Commanments Monument OK'd

The Seattle Post-Intelligencer reports that yesterday a federal district court in Seattle, Washington applied the U.S. Supreme Court's recent rulings on Ten Commandments monuments and held that a monument on public property in Everett, Washington may remain. The monument, donated by the Fraternal Order of Eagles 45 years ago, was almost identical to the one in Texas that the U.S. Supreme Court approved in the Van Orden case in June 2005.

UPDATE: Here is the full opinion inthe case, Card v City of Everett.

TX Capital Punishment Laws Do Not Violate Establishment Clause

In Roach v. Dretke, 2005 U.S. Dist. LEXIS 19697 (USDC ND Texas, Sept. 9, 2005), a federal district judge rejected arguments that the Texas capital punishment laws violate the Establishment Clause. The court held, however, that there were a number of secular purposes for the law. It said that where proponents of the death penalty did cite the Bible, it was in response to quotes from the Bible by those opposed to capital punishment.

6th Circuit Upholds RLUIPA On Spending Clause Grounds

In May 2005, the U.S. Supreme Court upheld the Religious Land Use and Institutionalized Person Act against an Establishment Clause attack. On remand to the U.S. Sixth Circuit Court of Appeals, challengers claimed other constitutional defects in the statute. Yesterday, the Sixth Circuit in Cutter v. Wilkinson held that RLUIPA was a valid exercise of Congress' power under the spending clause. Because this was a sufficient basis for the statute, the court indicated that it need not decide whether Congress could also have relied on the commerce clause to enact the statute. [Thanks to Derek Gaubatz via Religionlaw listserv for the lead.]

Two Prisoner Cases From Wisconsin

In West v. Overbo, 2005 U.S. Dist. LEXIS 19550 (EDWis., Sept. 8, 2005), a Wisconsin federal district court reject a Muslim inmate's claims that prison authorities retaliated against him by serving nutritionally inadequate food, insulting Ramadan participants by issuing an extra dessert, and repudiating the feast of Eid-al-Fitr.

In Andreola v. Wisconsin, 2005 U.S. Dist. LEXIS 19535 (EDWis., Sept. 2, 2005), a county jail inmate had requested that he be served a kosher diet prepared in separate facilities which he could supervise. The court rejected his First Amendment claim based on a denial of his request, as well as his fraud claim. However, the court permitted more evidence to be introduced on the prisoner's claim under the Religious Land Use and Institutionalized Persons Act.

Raising Legal Fees On eBay By Selling the Decalogue

In July, a Georgia federal judge ordered Barrow County to remove a Ten Commandments plaque from its courthouse. (See prior posting.) A private group, Ten Commandments-Georgia, pledged to reimburse the county for its legal expenses. The Atlanta Journal Constitution reports today that in order for the group to raise the last $52,000 it needs to meet that pledge, it has put up for auction on e-Bay the authentic Ten Commandments plaque that was removed under the order of the court.

Temporary Injunction For Churches Against MN Concealed Carry

The Associated Press reported yesterday that Hennepin County, Minnesota District Judge LaJune Thomas Lange granted two Twin Cities churches a temporary injunction against enforcement of Minnesota's concealed carry law. The statute requires churches that wish to exclude firearms to post signs with specific wording. It also allowed concealed weapons in church parking lots and in church premises leased to other groups. (See prior posting.) One church ignored the required wording and put up signs that read "Blessed are the peacemakers. Firearms are prohibited in this place of sanctuary.'' The temporary injunction applies until a trial is held. The judge said that the statute "impermissibly intrudes into the free exercise of religion by arbitrary definitions, which dictate restrictions on the use of church property for worship, childcare, parking and rental space."

3 Briefs In O Centro Available

The full briefs submitted by both parties, as well as one of the amicus briefs, in Gonzales v. O Centro Espirito which will be argued before the US Supreme Court on November 1 have been posted by Mark Kleiman on his blog. The case involves a challenge under the Religious Freedom Restoration Act to a prohibition under the drug laws on the use of ayahuasca for religious purposes. (See related posting.)

Dutch Court Bars Funding of Christian Party That Discriminates Against Women

From the Netherlands, Expatica reports today that a court in The Hague last week prohibited the Dutch government from continuing to give an annual grant to a small Christian political party, the Staatkundig Gereformeerde Partij (SGP). The court accepted the argument advanced by a coalition of women's groups that the State should not fund a party that does not allow women to be full members. The Court said that the funding violates the United Nations Convention on Discrimination against Women which Netherlands has ratified. The Dutch government says it will appeal the ruling.

Columnist Questions Faith-Based New Orleans Aid

James Carroll's column in today's Boston Globe asks whether "the abysmal performance of government agencies in responding to this crisis [in New Orleans] isn't related to the unprecedented emphasis the government itself has been putting on ''faith-based" groups as key providers of social services." He continues:

Even when faith-based groups claim to offer social services with no strings attached, one must ask if such detachment is possible.... The problem is redoubled when religiously sponsored good works supply essential needs in place of government responses. Something essential to democracy is at stake here. The rights of citizens to basic relief, especially in times of crisis, are rooted not in charity, but in justice. Charity can be an affront to the dignity of citizenship. Citizens in a democracy, after all, are the owners of government; therefore government help is a form of self-help.

Anti-Sharia Protests In Canada Also Threaten Jewish and Catholic Tribunals

Ynet News reports today on an unanticipated consequence of the furor over the possible introduction of Islamic tribunals in Canada. (See prior posting.) The protests threaten the use in Ontario since 1991 of Jewish and Catholic tribunals to settle family law matters on a voluntary basis. Ontario Premier Dalton McGuinty said that he is against letting Islamic law be used to settle family disputes, and will move against existing religious courts, as well.

Idaho Governor's Plans For Dalai Lama Visit Protested

The Dalai Lama is visiting Sun Valley, Idaho this weekend. The Associated Press reported on Saturday that Idaho's Governor Dirk Kempthorne had school children write essays related to the Tibetan Buddhist leader's visit and plans to send busloads of school children to see him in Sun Valley on Monday. The Governor's web site features extensive information about the visit of the Buddhist leader Some parents have complained that the governor's plans violate the constitutionally required separation of church and state.

Pastor Claims 9-11 Memorial Design Is Islamic Crescent

World Net Daily reported yesterday that Rev. Ron McRae, head of the Bible Anabaptist Church near Jerome, Pa., is considering going to court to challenge the design that has been approved for the memorial to honor the victims of Flight 93 that crashed in Pennsylvania on 9-11. The memorial will be a mile-long semicircle of red maples surrounding the place near Shanksville, Pa, where the flight's 40 passengers and crew were killed. The pastor argues that the design, called "Crescent of Embrace", is in fact the symbol of Islam. McRae said: "They wouldn't dare put up the Ten Commandments or the cross of Christ, but they're going to put up a red crescent. We're not going to stand idly by and allow this to happen."

Israel's Cabinet Votes To Leave Gaza Synagogue Buildings Standing

The Jerusalem Post today reports that Israel's Cabinet, by a vote of 14-2, has decided not to destroy the buildings in the Gaza Strip that had been used as synagogues. Even though Israel's High Court of Justice ruled that Israel could destroy the buildings as part of its disengagement from Gaza, significant opposition to the plan arose from rabbis within Israel as well as from Jewish communities outside of Israel who argued that the plan would encourage destruction of synagogues elsewhere in the world. (See prior posting ). The Palestinian Authority is not happy about the decision to leave the buildings standing, since the fear the bad publicity if they are not be able to prevent radical Palestinians from destroying the buildings. One Israeli official said that the buildings, from which all contents have been removed, might be sealed with cement to prevent their destruction.

UPDATE: On Monday morning, Aljazeera reported that Palestinians set fire to 3 abandoned Gaza synagogues as Israeli troops left the area. A synagouge in Netzarim was bulldozed after a group of youths burned it down.

Articles On Religion Clause Issues Published Recently

This week from SmartCILP:
Sheldon H. Nahmod, The Pledge As Sacred Political Ritual, 13 Wm. & Mary Bill of Rights Jour. 771-793 (2005).

Michael deHaven Newsom, Some Kind of Religious Freedom: National Prohibition and the Volstead Act's Exemption For the Religious Use of Wine, 70 Brooklyn Law Rev. 739-888 (2005).

L. Scott Smith, "Religion-Neutral" Jurisprudence: An Examination of Its Meanings and End, 13 Wm. & Mary Bill of Rights Jour. 815-870 (2005).

The Journal of Law and Religion, Vol. 20, Issue 1 has been published. A partial table of contents is available online.

National Days of Prayer and Remembrance Proliferate

National days of prayer and remembrance seem to abound. On Thursday, President Bush issued a Proclamation making September 16, 2005, a National Day of Prayer and Remembrance for the Victims of Hurricane Katrina. The President requested: "I ask that the people of the United States and places of worship mark this National Day of Prayer and Remembrance with memorial services and other appropriate observances. I also encourage all Americans to remember those who have suffered in the disaster by offering prayers and giving their hearts and homes for those who now, more than ever, need our compassion and our support."

Then on Friday, the President issued another Proclamation making September 9 through September 11, 2005 Days of Prayer and Remembrance to honor those killed by terrorism in the attacks of 9-11. The President asked the country to "pay tribute to the memory of those taken from us in the terrorist attacks in New York, in Pennsylvania, and at the Pentagon."

Indiana 10 Commandments OK'd

An Indiana federal district court judge has decided that a Ten Commandments monument can remain on the Gibson County, Indiana courthouse lawn, according to a report in today's Fort Wayne Journal Gazette. This reverses a ruling the judge made in January before the US Supreme Court set down standards for Ten Commandments monuments on public property.

Native American Prisoner Wins Nominal Damages

Today the Arkansas Democrat Gazette reported on a recommended decision by a federal district court magistrate in Fayetteville. She concluded that Benton County violated a former inmate’s rights under the First Amendment and RLUIPA when it banned his American Indian "prayer feather" from the county jail. The magistrate found that the denial substantially burdened Billy Joe Wolf, Jr.'s religious exercise. Wolf testified that he needed the feather to communicate with the "Great Spirit." Officials claimed that the feather could be used as a weapon, but Magistrate Beverly Stites Jones said that inmates are allowed to have pencils, toothbrushes and other items that are as potentially dangerous. The Magistrate recommended that the county pay Wolf nominal damages of $1.

Hawaiian Natives File Emergency Appeal On Burial Items

The Honolulu Star-Bulletin today reports that a native Hawaiian group has filed an emergency appeal to the US Ninth Circuit Court of Appeals after a federal district court judge in Hawaii ordered the group to return burial items so that 14 federally recognized native Hawaiian claimants could be consulted on what to do with the items. The group, Hui Malama I Na Kupuna 'O Hawaii Nei, reburied the items in 2000 to honor the wishes of kupuna (ancestors). In an affidavit supporting their appeal, a founder of the group said: "Specifically, it would be an extreme hewa (wrong) for me or any other Hui Malama member, if ordered, to take part in any effort to enter the Kawaihae burial cave, with two to three known caves, to remove the 83 moepu, as they belong to the kupuna buried therein," and that would harm "the integrity of the afterlife of these kupuna." It "amounts to stealing from the dead, an action that threatens severe spiritual consequences for anyone involved." Hui Malama has also said it does not want to return the items because it would be handing them over to the Bishop Museum that "acted as a fence for the original grave robbers."

Court TV Excluded From Intelligent Design Trial

A Pennsylvania federal district court has refused the request by Court TV to televise live the proceedings in the suit against the Dover Area School District challenging its teaching of intelligent design. The case denying the request is Kitzmiller v. Dover Area School Dist., 2005 U.S. Dist. LEXIS 19295 (MD Pa., Sept. 7, 2005).

Israel High Court Lifts Injunction Against Synagogue Destruction In Gaza

Haaretz reports that on Thursday, an expanded panel of Israel's Supreme Court allowed the government to proceed with its planned demolition of synagogues in the now-evacuated Gaza Strip that have not been moved back to Israel. (See prior postings, 1, 2, 3 ). The ruling lifted an earlier temporary injunction against the demolitions. In a 4-3 decision, a majority determined that there was no legal basis for further hearings on the issue. Nevertheless, the Government delayed beginning demolitions until after Sunday's Cabinet meeting.

Sixth Circuit Upholds Prison Hair Length Rules

In Hoevenaar v. Lazaroff, the U.S. Sixth Circuit Court of Appeals yesterday rejected a prisoner's claim that rules regarding his hair length burdens his right to practice his religion in violation of the Religious Land Use and Institutionalized Persons Act. Hoevenaar is a Native American of Cherokee ancestry who wishes to maintain a “kouplock” (a two inch by two inch square section at the base of the skull where hair is grown longer than a person's other hair). This violates the grooming provisions in Ohio Admin. Code § 5120-9-25(D). Prison authorities argued that the grooming provisions prevent inmates from hiding contraband in their hair, and prevent them from quickly changing their appearance after a prison break by cutting their hair. The court reversed the trial court's ruling in favor of the Hoevenaar, saying that the trial judge failed to give proper deference to prison officials on the issue of whether banning a kouplock was the least restrictive means to promote prison safety and security. [Thanks to Stuart Buck via Religionlaw listserv for the lead.]

Selective Prosecution Claim Rejected

In Kelly v. City of New York, 2005 U.S. Dist. LEXIS 19140 (SDNY, Sept. 6, 2005), a federal trial court rejected the claim of several former employees of the New York Department of Corrections that they were suspended and recommended for termination because of their adherence to the Moorish faith. The court found overwhelming evidence that they were disciplined because of bogus tax documents they submitted and because the Department reasonably believed that they were affiliated with a dangerous non-religious group.

AF Academy General Cleared of Final Charges

Yesterday the Air Force Inspector General cleared Air Force Academy Commandant of Cadets Brig. Gen. Johnny Weida of the last charge pending against him relating to claimed proselytization of cadets. (See prior posting.) The Associated Press reports today that the last charge which has now been dropped is "using a religious communicative code to facilitate the proselytizing of non-Christian cadets." An Air Force spokesperson added, "Gen. Weida has readily acknowledged that his actions were inappropriate and has taken positive, visible corrective actions that reflect his true character."

British Catholic Leader Protests Draft Iraqi Constitution

A top Catholic Church official in Britain, Cardinal Murphy-O’Connor, the Archbishop of Westminster and the Head of the Roman Catholic Church of England and Wales, wrote a letter to the British Foreign Secretary Jack Straw last Friday complaining that the new draft Iraqi Constitution may be a real threat to religious freedom in Iraq. He cited the controversial Article 2(a) of the draft constitution that provides "no law can be passed that contradicts the undisputed rules of Islam". The Christian Post reports today that one problem is the requirement in Islamic law that conversion of Muslims to other religions be prohibited or discouraged.

Today Is Protest Day Against Sharia Courts In Canada

Today is the Second International Demonstration Against Sharia Courts In Canada, according to the campaign's website. Protest speakers are scheduled in major cities around Canada as well as in several European cities. An opinion piece in yesterday's Judeoscope reviews support for Sharia tribunals in Canadian media, but argues that if adopted, the tribunals would impose legal apartheid on Canadian Muslims and destroy the legal and social fabrics of Canada. And today's Toronto Globe & Mail carries a story on the problems that women in Canada now face on family law matters in Sharia courts.

Spokane Diocese Appeals; Others React

The Associated Press reported yesterday that, as expected, the Diocese of Spokane has appealed a bankruptcy judge's decision that churches and parochial schools were assets of the Diocese that can be sold off in the Diocese's bankruptcy proceedings. (See prior posting.) The bankruptcy filing was necessitated by claims against the Diocese for clergy sexual abuse. The National Catholic Reporter this week in an editorial titled Bankruptcy: The Gamble That Backfired criticized the Diocese of Spokane and the Archdiocese of Portland for filing for bankruptcy. Meanwhile, Catholics in Tuscon, Arizona are considering separately incorporating Arizona parishes to shield their assets from being sold off for debts of the Diocese after the Diocese filed for bankruptcy and settled with clergy sexual abuse victims.

Utah State Education Board Rejects Intelligent Design In Science Curriculum

The Wall of Separation Blog yesterday reported that last week, Utah's State Board of Education, with the support of the state's governor, voted unanimously to keep evolution in the biology curriculum. Their action was taken despite pressure from the Religious Right to include Intelligent Design in science classes. A Utah state senator, Chris Buttars has been a strong backer of Intelligent Design, saying that the theory of evolution "has more holes than a crocheted bathtub". Buttars said that he would introduce a Academic Freedom Act" next year to force public schools to teach Intelligent Design.

Rastafarian Prisoners Punished For Grooming Rule Violations

The Richmond, Virginia Times Dispatch reports this morning that at least eleven Rastafarian prisoners in Virginia prisons have been held in segregation since 1999 for refusing to comply with prison grooming policies. In segregation, prisoners spend 24 hours in their cells, eating their meals there as well. For religious reasons, the Rastafarians refuse to cut their hair or shave their beards. Prison officials say the policy was put in place to help identify prisoners who could otherwise change their appearance from their original mug shots. Advocates for the prisoners seek a religious exemption from the grooming rules.

Residents of Faith-Based Treatment Facilities Retain Food Stamp Eligibility

The U.S. Department of Agriculture announced yesterday that Agriculture Secretary Mike Johanns and Health and Human Services Secretary Mike Leavitt have issued a joint letter to governors clarifying the policies on access to food stamps for individuals living in faith-based and community drug and alcohol treatment centers. The August 26 letter made it clear that that a faith-based or community treatment facility does not need to be licensed by the state in order for its residents to qualify for food stamps. So long as a facility is recognized by a State's Title XIX agency as one that furthers drug or alcohol rehabilitation, the residents of the facility retain their food stamp eligibility and the facility itself qualifies as an authorized food stamp retailer. Secretary Leavitt said, "We have informed all governors that there should be no barriers to Food Stamp participation for successful and proven recovery models such as those often used by faith-based and community treatment centers."

Another Decision On Gaza Synagogues By Israel's High Court

As reported in a previous posting, on Sunday an expanded panel of Israel's Supreme Court conducted a hearing on the legitimacy of the government's plans to destroy most of the synagogues in the Gaza Strip now that Israel has disengaged from the area. Arutz Sheva reported that on Tuesday, the Court's seven judge panel issued a unanimous interim decision. According to an AP report on the decision, the Court called on Prime Minister Ariel Sharon to "issue official requests to different authorities (the Palestinian Authority, the secretary of the United Nations and the president of the United States) in order to ensure that with the transfer of all of Gaza to Palestinian control, the synagogues will be preserved and not demolished."

Reacting to the ruling, the Palestinian Authority Cabinet demanded that Israel demolish or move the synagogues, according to a report today by the Palestine Media Center. Palestinian leaders argue that they will be subject to firece criticism if they destroy the synagogues, but if they do not, the buildings are likely to become a rallying point for radical groups.

Scientology-Based Drug Program Dropped From California Schools

[CORRECTED] Here is a story from earlier this year which has surfaced again. In February of this year, California state school superintendent Jack O'Connell urged all California schools to drop the Narconon Drug Prevention & Education, a free program with ties to the Church of Scientology. A report posted Tuesday by Pressbox.co.uk from the February 23, 2005 San Francisco Chronicle says that a review of the program revealed that it contained inaccurate and unscientific information based on beliefs of the Church of Scientology. San Francisco and Los Angeles schools earlier dropped the program. The state's report on the Narconon program is available online.

University of Minn. Ends Faith-Health Course After Being Sued

BBS News reported yesterday that the University of Minnesota, after being sued by the Freedom From Religion Foundation, has agreed that it will not offer a planned "faith/health leadership" course. The University had already announced that it was withdrawing from the Minnesota Faith Health Consortium. In its full complaint, FFRF alleged that the University's program which integrated medicine and theology violated the Establishment Clause of the US Constitution and the "no-preference" provision of Minnesota Constitution Art. I, Sec. 16. FFRF argued that tax-supported religious indoctrination is an integral component of the program, and that it includes explicitly religious content designed to be integrated into public health delivery models.

Religious Group Challenges Ohio Library's Meeting Room Use Rule

Fresh from a victory in Colorado in which it obtained agreement of a public library to change its rules, Liberty Counsel announced last week that it is now suing a northeast Ohio public library to challenge its policy on the use of its Community Room. The library makes the room available to non-profit organizations, but requires that if a program a group presents deals with a "controversial subject", then the group must present "all sides of the issue". Liberty Counsel applied to use the room for a meeting that would present the Biblical view of traditional marriage. The meeting was to include prayer and the reading of scripture. Permission to use the room was denied because other sides of the issue were not being presented. Liberty Counsel claims that government cannot require citizens to violate their conscience by promoting other views in order to express their own.

Uzbekistan Controls Religious Literature

On Tuesday, Forum 18 reported that a court in the Tashkent region of Uzbekistan has ordered the destruction of 600 Uzbek-language Christian leaflets for children. Other books, including New Testaments, seized from four Baptists in July were ordered to be handed over to the government's Religious Affairs Committee. The 4 individuals were found guilty of illegally importing the books and were each fined $35(US). However a senior religious affairs official explained the problem as follows: "According to Uzbek law, religious literature brought into the country has to undergo preliminary analysis at our committee. There is no problem with the Bible or New Testament. The Baptists should ask us 10 days before they intend to import the books and we would no doubt give them permission to go ahead with the shipment. As far as the other religious literature goes, then we do need to check it. If we judge that it contains no call to inter-ethnic or inter-faith conflict or proselytising ideas, then we will allow its import into the country."

Fifth Circuit Finds China's Actions Are Not Religious Persecution

The Sept. 6 issue of Christianity Today carries a story about the U.S. Fifth Circuit Court of Appeals opinion (Aug.9, 2005) in Li v. Gonzales. The Court of Appeals upheld a decision of the Board of Immigration Appeals which refused to permit a Chinese Christian who claimed religious persecution to remain in the United States. At issue were the provision of 8 USC Section 1253(h), which are now found in 8 USC Sec. 1231(b)(3). They permit withholding of an alien's removal from the country if the alien would be persecuted at home on account of his or her religion. Li had been prosecuted in China for holding an illegal religious gathering and conducting an underground church. The court found that Li had been punished at home for violating China's law on unregistered churches and not because of his religion. It said:

The evidence suggests that the Chinese government condones, or rather tolerates, the Christian faith and seeks to punish only the unregistered aspect of Li’s activities. There is therefore reasonable, substantial, and probative evidence to support the BIA’s decision that Li’s punishment was for his activities and not for his religion.... Clearly, we are faced with a complicated issue in this case. The issue in this case is perplexing not only because it involves affairs of a foreign state that are contrary to our fundamental ideals but also because the line between religious belief and religious activity here is indeed a fine one and it is colored by sensitive political and religious concerns. However, while we may abhor China’s practice of restricting its citizens from gathering in a private home to read the gospel and sing hymns, and abusing offenders, like Li, who commit such acts, that is a moral judgment not a legal one.

[Thanks to Brad M. Pardee via Religionlaw listserv for the lead.]

License Suspension In Child Support Case Opposed on Free Exercise Grounds

Today the Vermont Supreme Court will hear arguments in a religious freedom case, according to yesterday's Boston Globe. The Vermont Office of Child Support, acting under a court order, proceeded to suspend the driver's license of former Vermonter Joyce Stanzione who has not paid child support since she separated from her husband in 1991. Stanzione is a member of the Florida Twelve Tribes Messianic Community whose rules prohibit her from having an income. Her attorney says that Ms. Stanzione uses her car every day in church work she performs around the community. Stanzione argues that suspending her license because she has no income violates her First Amendment Free Exercise of Religion rights.

Australian Islamic Party Wants Sharia For All Aussies

The Australian reports today that the Best Party of Allah has become the first Islamic political party to apply for registration in the Australian Capital Territory. Kurt Kennedy, the leader of the party who is a Vietnamese born Muslim convert says that all Australians should be living under Islamic law as set out in the Quran. Non-Muslims are welcome to join the party which presently has less than 200 members.

Positions of Jewish Groups On Roberts

American Jewish organizations across the spectrum have sent letters and met with members of the Senate Judiciary Committee as the hearings on the nomination of John Roberts to the Supreme Court approaches. The groups do not all agree among themselves on whether Roberts nomination should be supported or opposed. Yesterday's Jerusalem Post outlined the positions of six major organizations.

Commercial Tenant Claims Haunted Building Violates His Religious Principles

An Orlando, Florida trial court faces an unusual defense in what began as a typical commercial landlord-tenant dispute for back rent and damages for breach of a restaurant's lease. Friday's Orlando Business Journal reports in detail on the litigation. The restaurant is in the heart of Orlando's historic district and the defendant claims that the historic building is haunted. Christopher Chung has refused to move his sushi restaurant into the building because his religious beliefs require him to avoid encountering or having any association with spirits or demons.

In a classic demonstration of alternative defenses, the owner of the building denies there are ghosts in the building, and argues that even if there are ghosts, they do not interfere with the use of the property. In another defense, the owner says it offered to conduct an exorcism to free the property from the ghosts. Finally, the owner argues that the lessor is a corporation, and corporations do not have religious beliefs.

Minister Blesses Senate Hearing Rooms Before Roberts Hearings

Today's Washington Post reported that Evangelical minister Rob Schenck has secretly blessed every piece of furniture in the three Senate hearing rooms where the Judiciary Committee will hold hearings on the nomination of Judge John Roberts. The blessing took place before President Bush announced today that he would now nominate Roberts to replace the late William Rehnquist as Chief Justice. Rev. Schenck, who heads the National Clergy Council, described his actions in the hearing rooms as "an act of prayer, in preparation for this whole process."

KY County Changes Mind On 10 Commandments Monument

Last month in a posting I reported that Crittenden County, Kentucky officials endorsed plans of a Baptist minister to erect a Ten Commandments monument on the county court house grounds. Now the county magistrates have reversed their decision, according to a report in today's Courrier & Press. The change of heart follows advice by the County Attorney that the plans were clearly contrary to the U.S. Supreme Court's rulings and that it would cost thousands of dollars to try to defend a lawsuit. Then the Kentucky ACLU made inquiries. Judge-Executive Fred Brown said, "It's easy to say we should fight the ACLU, but if the fiscal court spends big money defending a lawsuit, I think it would pretty much be malfeasance if we indebted the county on something we've been advised not to do." He advised supporters instead to purchase a vacant lot available downtown and use it for a Ten Commandments monument. Rev. Frank McCallam, a former president of the county's ministerial association, suggested that there were better uses for the moneys the churches were raising. He said the funds should be used to provide food and clothing for the needy in the community, saying "I don't believe the ACLU would stop us from giving away food and clothing."

Indonesia President To Remedy Church Closings

A posting last month reported on the forced closing down of Christian churches in Indonesia. Now something may be done. People's Daily reports that Indonesian president Susilo Bambang Yudhoyono has ordered the minister of religious affairs and local administrators to find a solution to the closures. The president was quoted as saying: "The state guarantees the freedom of its citizens to practice their religion and also guarantees that they can conduct religious rituals." He has ordered the National police Chief to enforce the law against those responsible or the closures.

Rehnquist Dies; Legacy Includes Religion Clause Decisions

We mourn the death of Chief Justice William H. Rehnquist. The Chief Justice was eugolized today in a statement by President Bush: "He was extremely well respected for his powerful intellect. He was respected for his deep commitment to the rule of law and his profound devotion to duty. He provided superb leadership for the federal court system, improving the delivery of justice for the American people, and earning the admiration of his colleagues throughout the judiciary."

Chief Justice Rehnquist's impact on the interpretation of the First Amendment religion clauses will likely be seen as one of his most important legacies. In the Fall 2004 issue of Northwestern University Law Review, Prof. Kent Greenawalt reviewed this legacy in an article titled Religion and the Rehnquist Court [LEXIS link]. He begins his analysis by saying: "The Rehnquist Court has turned the constitutional law of religion nearly upside down." Whether one agrees or disagrees with the direction of the changes, most observers would agree with this assessment of the changes that have occurred.

India Supreme Court Refuses Loudspeakers For Religious Festivals

In India, the Supreme Court has turned down a request by the government of the state of Maharashtra to relax a ban on the use of loudspeakers between 10 p.m. and 6 a.m. on 15 different religious festivals during the year. WebIndia123 reported on Friday that the state filed the petition because of the difficulty it foresaw in enforcing the ban this week during the festival of Ganesh Chaturthi.

France Considers State Funding of Mosque Construction and Clergy Training

In France, a debate has begun on whether Islamic extremism is encouraged by the nation's strict separation of church and state. A Washington Times article today reports that a book published last year by French Interior Minister Nicolas Sarkozy argues for reform that would allow the French government to help pay for mosque construction. This is designed to limit the influence of Morocco and Saudi Arabia on French Muslims. Sarkozy wrote, "What is dangerous is not minarets, but basements and garages that hide clandestine places of worship. Thus we must choose between mosques, where we know that the rules of the republic are respected, and secret places where extremism has been developing for too long."

Many politicians oppose a change in the basic law separating church and state as the centennial of the enactment that law approaches in December. Instead, they support another effort that is underway-- the creation of a private foundation that would raise funds, primarily from other countries, to construct mosques. Under this proposal, the source of the funds will be traceable and the handling will be transparent. The new foundation has been approved by the Council of State, France's highest administrative court. The foundation will also become involved with training imams, to help them master the French language and integrate themselves into French culture. However, some in the Islamic community oppose this initiative, fearing that it will lead to partial governmental control of mosques and Islamic organizations.

CLS Settles With Arizona State

The Christian Legal Society has settled its lawsuit against Arizona State University, according to a report in yesterday's East Valley Tribune. The suit, filed last November, challenged the University's attempt to require the student group to comply with the school's nondiscrimination policy. That policy prevented the group from limiting full membership to those who agree with CLS's Statement of Faith. In particular, the school objected to the exclusion of non-Christians as members, and the exclusion of gays and lesbians. The settlement apparently permits the group to limit their membership on the basis of religion, but does not permit them to discriminate on the basis of sexual preference. This is one of a series of similar suits filed against universities around the country. (See prior posting.)

Israel's High Court To Reconsider Gaza Synagogue Issue

As I reported in an earlier posting, on August 23 a three-judge panel of Israel's High Court of Justice ruled that the government could tear down most of the synagogues in Gaza after the area was evacuated. Two were to be relocated in Israel; the rest were to be desanctified and destroyed. However the decision led to an outcry from a number of quarters. Not only, as reported in my previous posting, did Israel's Chief Rabbinical Council oppose the ruling, but so did the Law Committee of Israel's Knesset (Parliament). This led the High Court of Justice to have second thoughts. Last week, according to the Jerusalem Post, it issued a temporary injunction delaying the razing of the synagogues until an extended panel of the High Court considered the case.

Today's Jerusalem Post carries a long story on the issue as the larger panel of judges in the High Court prepares for a hearing today. The government claims that leaving the synagogues intact will lead to their desecration by Palestinians and will send an incorrect message that Israel plans a future return to Gaza. The Chief Rabbinical Council says it would be better to have the synagogues destroyed by Palestinians than by IDF soldiers acting on government orders. Others opposing the government's position argue that as a legal matter, the destruction violates various United Nations resolutions, and as a practical matter will hinder efforts to prevent destruction of synagogues in other countries.

UPDATE: Haaretz reports on Sunday that the Palestinian Authority rejected an Israeli request, made through an American mediator, that the PA take responsibility for protection of synagogues in evacuated Gaza settlements.

License Requirement For Photo Without Veil Upheld

Yesterday, a Florida state Court of Appeals rejected the claim of a Muslim woman that that the Florida Department of Motor Vehicles had violated the state’s Religious Freedom Restoration Act when it required that she be photographed without her veil in order to keep her Florida driver's license. In Freeman v. Dept. of Hwy. Safety & Motor Vehicles, the court held that the photo requirement did not place a substantial burden on Freeman’s religious exercise since the Department was willing to accommodate her beliefs by having her photographed by a female photographer with no one else present in the room.

Soledad Cross Conveyance Nixed By Court

This week we had another milestone in the long-running saga of the Mt. Soledad Cross. (See prior postings 1, 2.) In San Diego, California yesterday, a Superior Court judge issued an order prohibiting the city from transferring the Mt. Soledad Cross property to the federal government, despite voters’ overwhelming approval of the transfer in a July election. The San Diego Union-Tribune reported that Judge Patricia Yim Cowett held that the transfer would violate California Constitution. The judge’s findings were labeled "Tentative rulings… for the assistance of counsel and the parties in preparing to address the Court in their matter."

This is another in a long series of court decisions on the matter. Here, in a 34-page opinion (full text), the court found that the attempt to justify the cross as a war memorial was largely a pretext. The transfer instead was seen as an attempt to save a religious symbol. The transfer would constitute a preference to Christianity in violation of Art. I, Sec. 4 of the California Constitution, and an aid to religion in violation of Art. XVI, Sec. 5.

Procedural Dismissal of Prisoner's Religious Claim Overturned

In Gormley v. Nix, decided by the U.S. Eleventh Circuit Court of Appeals on August 31, the court found that the district court had abused its discretion in dismissing on procedural grounds a federal prisoner’s claim involving the First Amendment and the Religious Freedom Restoration Act. The prisoner’s challenge involves events that took place while he was on bond following his criminal convictions. James Gormley’s probation officer refused to allow Gormley, a Roman Catholic, to attend Christmas Eve and Christmas Day mass with his family.

The district court dismissed Gormley’s claim for failure to comply with the court's order that he fill out and return USM-285 forms within 20 days. This is the form used to effectuate service of process on the defendant. However, the Court of Appeals found that much of the delay was a result of Gormley being held in lock-down in prison, and was not the result of delay or willful contempt.

Denial of Enlistee's CO Claim Upheld

In Alhassan v. Hagee, decided by the U.S. Tenth Circuit Court of Appeals on Sept. 1, the denial of conscientious objector status to a marine was upheld. The Court found that the Marine Corps had a basis in fact for finding that the marine beliefs were not sincerely and deeply held. He had applied for conscientious objector status only after learning of his imminent departure to Iraq and he never expressed any anti-war religious sentiment before this time. The court suggested that a higher standard applies where the person claiming conscientious objector status voluntarily enlisted in the military. [Thanks to Derek Gaubatz via Religionlaw listserv for the lead.]

Order and Opinion of Pakistan Supreme Court In Hasba Bill Case

As reported in a prior posting, on August 4, the Supreme Court of Pakistan issued an order finding that portions of the Hasba law enacted by the North West Frontier Province unconstitutional. The law created the office of the muhtasib, a religious ombudsman whose function was to assure that people strictly follow Islamic rules. Now there is available on line the text of the Court's Order, and a summary of its lengthy opinion that was just released on August 31.

South African Lawyer May Press Religion Claim At UN Body

In South Africa, Gareth Prince, a Rastafarian lawyer, has been attempting to vindicate his right to use cannabis as a practice that is central to his religious beliefs. Because he had two convictions for possessing cannabis, the Cape Law Society refused to admit him as an attorney unless he would promise never to smoke cannabis again. The South African courts have affirmed this decision. The Mail & Guardian reports today that Prince's lawyers are now considering taking his case to the United Nations Human Rights Commission to claim that the refusal to accommodate Prince's religious practices violates the International Covenant on Civil and Political Rights. However there are problems with his case since the denial of bar admission to him took place before South Africa signed onto the international agreement.

Indonesia Court Sentences Christian Women To 3 Years In Prison

In a widely-followed case from Indonesia, Christian Today reports that three women who had been convicted of violating the Child Protection Act of 2002, which forbids "deception, lies or enticement" causing a child to convert to another religion, have been sentenced to 3 years in prison. Muslim children, with their parents' consent, were attending an education program sponsored by a Christian church. Charges were filed by the Indonesian Council of Muslim Clerics when it was reported that some of the children started to sing Christian praises at school and at home. During the trial, threats were made by Islamic extremists inside and outside the courtroom. One reportedly brought a coffin to bury the defendants if they were found innocent. The defendants plan an appeal.

Prison Officials Had Qualified Immunity

In Rachimim v. Oritz, decided by the US Tenth Circuit Court of Appeals on Aug. 31, the court found that prison officials were entitled to qualified immunity in a claim for monetary damages growing out of their refusal in certain past years to provide Jewish prisoners with a kosher diet. It also agreed with the district court that an injunction was not needed because prison officials were now providing kosher food to prisoners.

Congressman Criticizes Air Force Religion Guidelines

As I reported in a previous posting, recently the Air Force issued Guidelines discouraging public prayer at most official functions. The Forward today reports that U.S. Representative Walter B. Jones, the North Carolina member of the Armed Services Committee, has strongly criticized the Guidelines as an assault on "the Judeo-Christian values of America" and argued that the Air Force was "yielding to outside political pressure". In July, Jones introduced a bill (HR 3430) that would protect voluntary non-denominational prayer at military academies.

LA Governor Calls For Day of Prayer

On Tuesday, in the wake of Hurricane Katrina and the chaos in New Orleans, Louisiana Governor Kathleen Blanco declared Wednesday, August 31 a "Day of Prayer in the State of Louisiana". She said, "I know, by praying together on Wednesday, that we can pull together and draw strength we need; strength, that only God can give us." The propriety of this kind of declaration has been the subject of a rather heated debate on Religionlaw listserv. (Follow the thread for "Floodwaters and Undermined Walls".)

NLRB Rejects RFRA Claim of Religious College

On August 26, the National Labor Relations Board issued its decision in Carroll College, Inc. and International Union, UAW , involving a religious college's challenge under the Religious Freedom Restoration Act to forcing it to engage in collective bargaining with its faculty. (See prior posting). Carroll College argued that requiring it to bargain collectively would interfere with its right to decide autonomously whether faculty members are satisfactorily conforming to the Protestant theological tradition and the tenets of the "reformed" Presbyterian Church. The Board held, however, that this contention was not supported by the evidence. Hypothetical possibilities are not enough to satisfy RFRA's requirement that there be a substantial burden on free exercise of religion before its provisions apply. In so holding, the Board made it clear that they would follow the 2002 decision of the D.C. Circuit Court of Appeals in NLRB v. University of Great Falls, that RFRA could apply even though a religiously affiliated school was not completely exempt from the NLRA. [Thanks to Steven Sholk for the lead on this decision.]

Does Establishment Clause Affect Liability Insurance?

Perhaps an over-reaction to Establishment Clause concerns is reflected in an incident reported yesterday by the Insurance Journal from Preston, Idaho. It seems that the Franklin County Senior Citizen Center provided a 15-passenger van twice a week for any seniors who wanted to go to Logan, Utah. They would visit the Logan Temple of the Church of Jesus Christ of Latter Day Saints, go to Wal-Mart, get ice cream and lunch, and return home. But then someone questioned whether there was a church-state problem in using the van this way. So the center's manager stopped the bus rides until she could make sure that the county's insurance policy covered the trips even if the seniors were going to the Mormon Temple. It seems that now they have received assurance that as long as the trip is not exclusively to the Temple, there is no problem. But the center is still waiting for a report at the next formal board meeting before they resume the trips.

Court Accepts VT Magistrate's License Plate Recommendations

The Rutland Vermont Herald reports today that federal district court judge J. Garvan Murtha has accepted the Magistrate's Report in Byrne v. Terrill, 2005 WL 2043011 (D.Vt., Aug. 1, 2005). (See prior posting.) Plaintiff is attempting to force the Vermont Department of Motor Vehicles to issue a "vanity" license plate with the number JN36TN, a reference to a Biblical verse. The decision refuses to preliminarily enjoin the DMV from enforcing its regulation against references to religion on license plates. However, it permits plaintiff to attempt to prove that the DMV is violating the equal protection clause or engaging in prohibited viewpoint discrimination by permitting some religious references on license plates and denying others.

Israel's High Court To Face Claim For Equal Treatment of Reform Woman Rabbi

Haaeretz reports today on a case that is about to be filed in Israel's High Court of Justice by the Religious Action Center of Israel's Movement for Progressive Judaism. It will seek to require the government to honor the request of the Gezer Community Council to allot one of the government paid city rabbinical positions to a Reform rabbi, Miri Gold, the rabbi of Kibbutz Gezer in central Israel. The case will raise two important questions: Is a Reform or Conservative rabbi entitled to receive a salary from the state as the rabbi of a community, and, if so, does this entitlement apply to a female rabbi? Currently, no liberal rabbi is recognized by the state as the rabbi of a neighborhood, community or city.

The Religious Action Center's release on the upcoming case says that they are not only seeking a position for Rabbi Gold, but a change in the procedures for qualifying for a salary as a community rabbi.

Prisoner's Establishment Clause Claim Not Ripe

Earlier this week, in Duquette v. New Hampshire, (USDC D NH, Aug. 29, 2005), the New Hampshire federal district court avoided deciding a claim that the state prison system's sexual offender program is a religious program the violates the Establishment Clause. The court found that since plaintiff will not be eligible to enroll in the program until near the end of his 20 year sentence, his claim is not ripe at this time.

Interparliamentary Religious Freedom Conference Will Be In Morocco

The Third Session of the Interparliamentary Conference on Human Rights and Religious Freedom will be held in Marrakech, Morocco on Nov. 28 through Dec. 1. According to a report today by the Christian Communication Network, national parliaments, organizations, and individuals are registering in unprecedented numbers. Participation is expected from over 75 countries. For the first time, an international parliamentary assembly on the topic of religious freedom is being held in a pre-dominantly Muslim country.

New National Survey On Religion and Political Attitudes

Yesterday, a new national survey on religion, politics and public policy issues was released by the Pew Research Center for the People & the Press and Pew Forum on Religion & Public Life. A lengthy summary, as well as the full report, are available online.

The survey finds that by a margin of 51% to 28% ,­ the Republican Party is seen as most concerned with protecting religious values, while by a margin of 52%-30% the Democratic Party is seen as most concerned with protecting the freedom to make personal choices. 44% of those surveyed say that liberals who are not religious have too much control over the Democratic Party, while 45% say that religious conservatives have too much influence over the Republican Party. On evolution and the origins of life, 48% of the public says that humans have evolved over time, while 42% say that living things have existed in their present form since the beginning of time. 64% of those surveyed say they are open to the idea of teaching creationism along with evolution in the public schools, and 38% favors replacing evolution with creationism. Two thirds of respondents say that liberals are going too far in trying to keep religion out of schools and the government. The survey covers a number of other issues as well.

Naval Academy To Continue Lunchtime Prayer

While the Air Force issued a policy statement this week discouraging public prayer in most Air Force sponsored activities, the Navy plans to continue its practice of having chaplains at the Naval Academy say grace before lunch each day. (See prior posting.) The Baltimore Sun reports on this today, saying that during each mandatory lunch, all midshipmen stand for announcements and nondenominational prayer led by Catholic, Jewish or Protestant chaplains.

Law Review Articles Recently Published

New law review articles from this week's SmartCILP:
Jordan C. Budd, Cross Purposes: Remedying the Endorsement of Symbolic Religious Speech, 82 Denver Univ. Law Rev. 183-257 (2004).

Susan J. Stabile, State Attempts To Define Religion: The Ramifications of Applying Mandatory Prescription Contraceptive Coverage Statutes To Religious Employers, 28 Harvard Jour. of Law & Public Policy 741-780 (2005).

Symposium: Religious Education and the Liberal State, 44 Journal of Catholic Legal Studies 57-231 (2005).

Complaint in Christian School Challenge to UC Now Online

The full text of the complaint in Association of Christian Schools International v. Stearns is now available online. This suit challenges the University of California's refusal to recognize certain courses from fundamentalist Christian high schools as meeting UC's course requirements for those applying for admission. (See prior posting.) Further discussion of the case (and the lead to the link) is on The Questionable Authority blog.

Air Force Issues Interim Religious Guidelines

The Air Force Times reported yesterday that new Interim Guidelines (full text) on religious tolerance have been adopted by the Air Force in the wake of allegations that at the Air Force Academy, evangelical Christians created a hostile atmosphere for non-Christians. The new guidelines discourage public prayer at functions like staff meetings, office meetings, classes and sports events or practices. They urge commanders to be sensitive that personal expressions of religious faith can easily be mistaken for official expressions. They also tell chaplains to to "respect the rights of others to their own religious beliefs, including the right to hold no beliefs." However, the Guidelines point out that in situations like mass casualties or preparation for imminent combat, the potential benefit of public prayer may outweigh the potential of causing discomfort.

The official Air Force release announcing the Guidelines quotes Lt. Gen. Robert A. Brady as saying: "In a world where many nations are torn apart by religious strife, we must understand that our ability to stand together -- those who represent many religions shoulder-to-shoulder with those who claim no religion -- is a great strength."

IL Mosque Loses Bid For New Trial In Claim Against City

Last week, a suburban Chicago mosque lost its bid for a new trial in its failed attempt to purchase a church building over the objections of local residents and city council. (See background article.) In Al Salam Mosque Foundation v. City of Palos Heights, 2005 U.S. Dist. LEXIS 18237 (USDC ND Ill., Aug. 26, 2005), an Illinois federal district court rejected a series of objections raised by plaintiff to an earlier jury verdict. The jury rejected plaintiff's claim that its religious freedom rights under the First Amendment and the Illinois Religious Freedom Restoration Act had been infringed by the city. The mosque reluctantly backed out of a contract to purchase a Palos Heights church building after it was unable to get written confirmation from the city that the property could be used by it as a mosque and school. The court said that plaintiff had not shown that the city itself did anything to interfere with plaintiff's rights.

Beard Prohibition Deters Recruiting Jewish Military Chaplains

An August 26 article in The Forward points out that the severe shortage of Jewish chaplains in the military is exacerbated by the military's insistence that beards are not permitted. Only 29 Jewish chaplains are on active duty in the military. Many young Chabad-Lubavitch rabbis might be interested in enlisting if beards were permitted. Unlike some Orthodox Jewish groups which permit shaving with an electric razor, Chabad prohibits removal of facial hair by any means. The military insists however that beards interfere with the effective use of gas masks. One bearded Lubavitch rabbi does serve in the military, though, because he, as well as Sikhs with beards, who were in the service before 1986 were exempted from the requirement.

German Court Rules Against Muslim School Teacher

In Germany, the Superior Administrative Court in Bremen has ruled against a Muslim public school teacher who insists on wearing a headscarf while teaching. Bernama reports today that the decision upholds an amendment to Section 38 of the School Act enacted by the Bremen Parliament in June providing: "Teachers at public schools... are not allowed to exercise political, religious, ideological or similar manifestations that may endanger or disturb the neutrality of the country towards pupils or parents or the political, religious or ideological peace of the school." The judges held that the head scarf constitutes an "abstract danger for the education mandate given to the state and also for the peace in school".

College Instructor Claims Unconstitutional State Religious Endorsement

An adjunct instructor at Florida's Broward Community college has sued claiming that he was not hired to teach more courses because the school's religion department has embraced Christian fundamentalism. James W. Johnson, who is Catholic, charges that state-supported community college is discriminating against nonfundamentalists in violation the Florida Constitution that prohibits using state money "directly or indirectly in aid of any church, sect, or religious denomination." Today's South Florida Sun Sentinel reports on the filing of the lawsuit in Broward County Circuit Court by Johnson who has taught religion part time at the college for 12 years.

Americans United Report Opposes Roberts Nomination

Today, Americans United For Separation of Church and State issued a report titled Religious Minorities At Risk: A Report In Opposition to the Nomination of John G. Roberts Jr. to the United States Supreme Court. The 19-page report concludes that:

At every step of his legal career, Roberts has advanced an exceedingly narrow reading of the constitutional provision that was designed to ensure a healthy separation of church and state. He has time and again advocated a legal standard that jettisons longstanding protections against over-reaching by religious majorities.... Roberts may claim that he took some of these positions because they represented the views of his clients or employers, rather than his own. But if that were so, one would expect to find writings advancing varied positions from a range of perspectives. Instead, Roberts’ writings ... present a remarkably consistent vision: a federal court system that is wholly unreceptive to the Establishment Clause concerns of religious minorities.

A press release accompanying the Report quotes AU executive director Rev. Barry W. Lynn as saying: "I urge every senator to read this report and then vote against Roberts' confirmation. I understand why Jerry Falwell and Pat Robertson support Roberts' confirmation. I don't understand why anyone else would."

The American Center for Law and Justice immediately issued a release criticising AU's Report.

New SSRN Postings

New papers on SSRN:
Gregory A. Kalscheur, Christian Scripture and American Scripture: An Instructive Analogy?

Jim Wedeking, Quaker State: Pennsylvania's Guide to Reducing the Friction for Religious Outsiders under the Establishment Clause.

No Unemployment Comp Exemption For Christian School In VT

On Friday, the Vermont Supreme Court decided Mid Vermont Christian School v. Department of Employment and Training, rejecting the claim of an independent Christian school that it should be exempt from the state’s unemployment compensation law. The Court affirmed the determination of the state’s Employment Security Board that Mid Vermont Christian School fit neither of the statutory exemptions (21 VSA 1301(6)(C)(vii)(I)) —(1) a church or association of churches, or (2) an organization operated primarily for religious purposes which is operated, supervised, controlled, or principally supported by a church or association of churches.

The school claimed that requiring it to pay unemployment compensation violated the First Amendment and the Equal Protection Clause of the Federal Constitution, and the Common Benefits Clause of the Vermont Constitution. However the court disagreed, saying that all of the school’s constitutional arguments were based on its claim that the Vermont distinguishes between religious schools owned or operated by churches and those run independently. However, church-run schools are also subject to the tax, since they are operated for educational, not religious, purposes.

Christian Schools Sue University of California Over Admissions

Last Thursday, the Calvary Chapel Christian School in Murrieta, California along with the Association of Christian Schools International filed suit in federal district court in Los Angeles against the University of California system alleging violations of plaintiffs’ First Amendment rights. California newspapers, including the Long Beach Press Telegram, the San Diego Union-Tribune and the Los Angeles Times have reported on the lawsuit which alleges unconstitutional discrimination by UC admissions officials against the Christian perspective in various courses offered by Christian schools.

The UC system requires entering students to have completed certain high school science, English and history courses in order to be admitted, though those who have not can try to obtain admission based solely on their SAT scores. The Universities last year began sending a form letter to many Christian high schools indicating that some courses they teach will not be accepted as meeting the universities’ minimum standards. Courses using two popular Christian biology textbooks that challenge evolution are not acceptable. UC says that the outlines in courses using these are “not consistent with the viewpoints and knowledge generally accepted in the scientific community.” The UC system also rejected a Calvary Chapel Christian School history course titled "Christianity's Influence on American History”, an English course titled “Christianity and Morality in American Literature” and a government course titled “Special Providence: American Government”. [Thanks to Ed Brayton and Allen Asch via Religionlaw listserv for leads on this posting.]

Petitioner's Brief In O Centro Available

The Petitioner's Brief on the Merits in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, scheduled for argument before the US Supreme Court on November 1, 2005, is now available online. The Brief describes the question presented as:

Whether the Religious Freedom Restoration Act of 1993 ... requires the government to permit the importation, distribution, possession, and use of a Schedule I hallucinogenic controlled substance, where Congress has found that the substance has a high potential for abuse and is unsafe for use even under medical supervision, and where its importation and distribution would violate an international treaty.

However, the case may be seen as presenting only the narrower issue of what is the appropriate standard for granting a preliminary injunction under the Religious Freedom Restoration Act. (See prior posting.)

Jewish Synagogue Group Endorses Roberts

In a move seen as somewhat unusual, the United Synagogue of Conservative Judaism has sent a letter to the Chairman of the Senate Judiciary Committee endorsing Supreme Court nominee John Roberts as "qualified to serve". The August 22 letter to Sen. Arlen Specter from USCJ's Public Policy Committee says that its conclusion is based on a Position Paper on Federal Judicial Nominations adopted by USCJ in June. The Paper concludes that the criteria for an acceptable judge are:

1) – be well trained, well educated and enjoy wide respect among diverse segments of society.
2) – eschew an ideologically defined approach to judicial interpretation. That is to say, a jurist should be neither an activist for change nor an unalterable opponent thereof.
3) – demonstrate in his or her past decisions a balanced respect for foundational documents, reasonable interpretation and societal realities.

The Baltimore Jewish Times today reports that this is the first time that USCJ has endorsed a Supreme Court nominee. USCJ is the parent body of Conservative synagogues in the United States and Canada.

ACLU Sues On Behalf Of Mormon Prisoner

The ACLU of Louisiana announced on Friday that it has filed suit against the Louisiana Department of Corrections on behalf of Norman Sanders, a Mormon prisoner who has been denied access to religious materials. Also Sanders' requests that Mormon religious services be held in the prison have been ignored. Under a 2003 policy change, the Louisiana State Penitentiary at Angola permits inmates to order books and other written materials only from vendors on an "approved vendor list". The prison has refused to add vendors such as Brigham Young University, to the list. The Complaint (full text) says that the LDS Church itself-- which sells copies of scriptures but not other kinds of religious books-- is on the approved list, but that requests for books from it have been returned to Sanders by prison employees without comment.