New Articles and Books of Interest

From SSRN:

• Raphael Cohen-Almagor, Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education, (American Journal of Education, Vol. 114, No. 2, pp. 215-241, February 2008).


• Russell Powell, Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor, (March 20, 2008).


• Carl H. Esbeck, What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause, (Mississippi Law Journal, Vol. 78, No. 2, Forthcoming).


• Nicholas A. Mirkay, Is it 'Charitable' to Discriminate?: The Necessary Transformation of Section 501(C)(3) into the Gold Standard for Charities, (Wisconsin Law Review, Vol. 2007, July 3, 2007).


• Nicholas A. Mirkay, Losing Our Religion: Reevaluating the 501(C)(3) Exemption of Religious Organizations that Discriminate, (Widener Law School Legal Studies, Research Paper No. 08-35, March 24, 2008).


• Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accommodation Provision, (Gonzaga Law Review, Vol. 44, No. 2, 2008).


• Dayna Bowen Matthew, Race, Religion, and Informed Consent -- Lessons from Social Science, (Journal of Law, Medicine and Ethics, Vol. 36, No. 1, 2008).


• David L. Gregory, Not the Bishops' Finest Hour: Economic Justice, with Cerberus Unchained?, (St. John's Legal Studies Research Paper No. 08-0119, March 2008).

From SmartCILP:

• David K. DeWolf, Book Review (Reviewing Stephen Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America.and What's Happened Since), 85 Denver University Law Review 443-461 (2007).


• Randy Lee, A Rose By Any Other Word Would Smell As Sweet", But Would It Still Be Treasured: The Mislabeling and Misunderstanding of Parents and Grandparents in American Policy, 15 Elder Law Journal 607-631 (2007).


• Mark Strasser, Preaching, Fundraising and the Constitution: On Proselytizing and the First Amendment, 85 Denver University Law Review 405-441 (2007).

Recent Books:

• David Gushee, The Future of Faith in American Politics: the Public Witness of the Evangelical Center, (Baylor University Press, 2008).


• Eleanor Abdella Doumato & Gregory Starrett (eds.), Teaching Islam: Textbooks and Religion in the Middle East, (Viva Books New Delhi, 2008), reviewed in Pakistan Daily Times.


• Noah Feldman, The Fall and Rise of the Islamic State, (Princeton University Press, 2008), reviewed in Middle East Online.
• George Weigel, Against the Grain, (Crossroad Publishing Co., 2008).

ACLU Has Taxpayer Standing To Challenge Charter School As Promoting Islam

In American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy, (D MN, July 21, 2009), a Minnesota federal district court held that plaintiff has taxpayer standing to challenge as an Establishment Clause violation the funding of a charter school by the state of Minnesota. Plaintiff alleges that the Tarek ibn Ziyad Academy advances the Muslim religion and fosters entanglement between government and religion. The court rejected defendants' argument that under the U.S. Supreme Court's Hein decision, funding of the school was a discretionary executive branch decision, not a legislative appropriation. It said: "The fact that the Commissioner [of Education] has the responsibility to choose or authorize charter schools (which then in turn receive funding) does not mean that Plaintiff here is challenging an executive action." The court did, however, dismiss plaintiff's claim of statutory violations and dismissed claims against certain of the defendants on sovereign immunity grounds. ACLU yesterday issued a press release on the decision and the Minneapolis Star-Tribune reported on the case. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Daniel Schick, Keeping Up with the Principle of Neutrality: Why Courts Should Not Extend Elmbrook's Mistaken Establishment Clause Analysis, (Mississippi Law Journal, Vol. 84, Forthcoming).
• Philip Hamburger, Equality and Exclusion: Religious Liberty and Political Process, (March 10, 2014).
• Ronan McCrea, European Law and the Prohibition of the Veil, (March 4, 2011).
• Andra le Roux-Kemp, A Question of Life and Death, (Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89).
• W. Cole Durham, Robert Theron Smith & William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions, (March 14, 2014).
• James E. Wheeler, God, Guns and Others: Why Restrictions on Carrying Firearms in Church Conflict with a Moral Duty to Defend Others, (March 11, 2014).
• Benjamin L. Berger, Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion, (Osgoode Legal Studies Research Paper No. 16 (2013)).
• Benjamin I. Berger, The Virtues of Law in the Politics of Religious Freedom, (Journal of Law and Religion, Vol. 29, No. 3, 2014).
• Malick W. Ghachem, Religious Liberty and the Financial War on Terror, (First Amendment Law Review, Vol. 12, No. 1, 2013).

From SmartCILP:

• Max Guirguis, A Coat of Many Colors: The Religious Neutrality Doctrine From Everson to Hein, [Lexis link],  43 Stetson Law Review 67-118 (2013).

Recent Prisoner Free Exercise Cases

In Davis v. Davis, (5th Cir., June 14, 2016), the 5th Circuit , while affirming in part, vacated and remanded a district court's refusal to allow Native American inmates to wear long hair or kouplocks. The district court had not evaluated plaintiffs' claims in light of the specific characteristics and security risks posed by each inmate.

In Rouser v. White, (9th Cir., June 17, 2016), the 9th Circuit, in a 2-1 decision, held that the district court had abused its discretion in terminating a 2011 consent decree that allowed a Wiccan inmate to practice his religion in various ways.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 73906 (SD GA, June 6, 2016), a Georgia federal magistrate judge dismissed, but with leave to amend to allege a sincere religious belief, an inmate's complaint that he was denied a kosher Rastafarian diet.

In Ahdom v. Etchebehere, 2016 U.S. Dist. LEXIS 76149 (ED CA, June 9, 2016), a California federal district court permitted a Muslim inmate to move ahead under the free exercise clause with his complaint that he had been denied religious Ramadan Halal meals for a period of six days.

In Parker v. Shepard, 2016 U.S. Dist. LEXIS 77854 (SD GA, June 15, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 78216, April 18, 2016)  and denied a preliminary injunction to a Rastafarian inmate who wished to wear long hair and dreadlocks.

In Muhammad v. Crews, 2016 U.S. Dist. LEXIS 78744 (ND FL, June 15, 2016), a Florida federal district court, adopting a magistrate's recommendations in part, dismissed a number of claims by a Muslim inmate but remanded for evaluation under a proper framework his claim that he was denied a religious diet during a 4-year period.

In Owens v. Kernan, 2016 U.S. Dist. LEXIS 78854 (ED CA, June 16, 2016), a California federal magistrate judge dismissed a claim by an inmate serving a life sentence that denial of a conjugal visit to consummate his marriage violates his rights under RLUIPA.

Recent Prisoner Free Exercise Cases

In Aref v. Lynch, (DC Cir., Aug. 19, 2016), the D.C. Circuit Court of Appeals, in an opinion involving a number of other issues as well, rejected the claim of an inmate convicted of supporting terrorism that he was denied transfer out of the restrictive Communications Management Unit as retaliation for a sermon he gave as part of a Muslim prayer meeting.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 107690 (SD GA, Aug. 15, 2016), a Georgia federal magistrate judge recommended that an inmate be allowed to move ahead with most of his claims contending that he was denied meals in accordance with the tenets of his religion. UPDATE: The court adopted the magistrate's recommendations, 2016 U.S. Dist. LEXIS 128232, Sept. 20, 2016.

In Thomas v. Lawler, 2016 U.S. Dist. LEXIS 108143 (MD PA, Aug. 16, 2016), a Pennsylvania federal district court held on various grounds that a Muslim inmate's rights under the Americans With Disabilities Act were not infringed when Friday Jumu'ah services were held in the multi-faith chapel accessible only by walking four flights of steps.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 108734 (SD IL, Aug. 17, 2016), an Illinois federal district court dismissed some, but not all, defendants in a suit by a Muslim jail inmate complaining that he was denied Jumu'ah prayer services and was denied religious counseling on a equal basis with Christian inmates.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 108976 (ND NY, Aug. 17, 2016), a New York federal district court adopted a magistrate's recommendations and dismissed an inmate's complaint over rules that limited him to having eleven religious books at one time.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 109247 (SD GA, Aug. 17, 2016), a Georgia federal magistrate judge allowed an inmate to proceed with his RLUIPA challenge to the denial of a Rastafarian diet.

In Deangelis v. Cowels, 2016 U.S. Dist. LEXIS 109785 (D CT, Aug. 18, 2016), a Connecticut federal district court dismissed, with leave to amend, an inmate's complaint that his free exercise rights were infringed when his religious gold cross and gold necklace were taken from him and subsequently lost.

In Brown v. Cox, 2016 U.S. Dist. LEXIS 110284 (ED CA, Aug. 18, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his free exercise rights were infringed when he was denied access to his religious beads and cross while temporarily in administrative segregation.

In White v. Baker, 2016 U.S. Dist. LEXIS 110873 (D NV, Aug. 19, 2016), a Nevada federal district court allowed an inmate to move ahead with his suit seeking a "sacred Heraklean diet" (high protein natural and organic cuisine) and the right to possess two religious rings and a necklace, but dismissed his claims seeking group worship and official recognition of his religion.

In Carey v. Mason, 2016 U.S. Dist. LEXIS 110879 (MD AL, Aug. 18, 2016), an Alabama federal magistrate judge, among other issues, dismissed a Buddhist inmate's complaint that the warden tore up his bible (Diamond Sutra) and threw it in the trash.

Recent Scholarly Articles and New Book of Interest

From SSRN:

• Teresa Stanton Collett, Advancing the Culture of Life Through Faithful Citizenship, (Journal of Religion and Society, 2008).
• Akiva Shapiro, Should the Lower Courts Save Taxpayer Standing? Interpreting Hein v. Freedom from Religion Foundation Narrowly Through the Lens of Judicial Spending,(Journal of Appellate Practice and Process, Vol. 10, No. 2, 2009).
• Scott A. Taylor, Spirituality and Academic Performance at a Catholic Law School: An Empirical Study, (California Western Law Review, Vol. 45, 2008).

Recent Law Review Articles:

• Erwin Chemerinsky, Why Church and State Should Be Separate, 49 William & Mary Law Review 2193 (2008).
• Gerard V. Bradley, Religion at a Public University, 49 William & Mary Law Review 2218 (2008).

New Book:

Jeff Sharlet, The Family: The Secret Fundamentalism at the Heart of American Power, (HarperCollins, May 2008).

Court Says No Standing To Challenge State Funds For Faith-Based Agency

In Pedreira v. Kentucky Baptist Homes for Children, Inc., (WD KY, March 31, 2008), a Kentucky federal district court dismissed on standing grounds a lawsuit by Kentucky state taxpayers claiming that the state violated the Establishment Clause by providing funding to Kentucky Baptist Homes for Children (KBHC). The state pays KBHC to provide services to children placed in its care as wards of the state. Plaintiffs alleged that KBHC filled staff positions in accordance with religious tenets and sought to instill Christian values and teachings in youths in its programs. In dismissing the lawsuit, the court relied on two recent U.S. Supreme Court decision. It held that Daimler Chrysler Corp. v. Cuno requires the application of federal standing doctrines to state taxpayer lawsuits, including those brought under the Establishment Clause. It then held that because KBHC receives funds through contracts with state agencies rather than through legislative action, under Hein v. Freedom from Religion Foundation plaintiffs lack taxpayer standing. Yesterday's Louisville Courier-Journal reports on the case which was originally filed in 2000 and included religious discrimination claims against KBHC which were subsequently dismissed by the court.

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Bailey H. Kuklin, The Natures of Universal Moralities, (Brooklyn Law Review, Forthcoming).
• Preston C. Green & Joseph Oluwole, Hein v. Freedom from Religion Foundation and Taxpayer Standing, (Wayne Law Review, Vol. 54, No. 3, 2008).

From SmartCILP:

• Scott Atran & Robert Axelrod, Reframing Sacred Values, 24 Negotiation Journal 221-246 (2008).
• John R. Dorocak, The Income Tax Exclusion of the Housing Allowance for Ministers of the Gospel per I.R.C. Section 107: First Amendment Establishment of Religion or Free Exercise Thereof--Where Should the Warren Court Have Gone?, 54 South Dakota Law Review 233-252 (2009).
• Stephen P. Halbrook, "Arms in the Hands of the Jews are a Danger to Public Safety": Nazism, Firearm Registration, and the Night of the Broken Glass, 21 St. Thomas Law Review 109-141 (2009).
• Andrew S. Mansfield, Religious Arguments and the United States Supreme Court: A Review of Amicus Curiae Briefs Filed by Religious Organizations, 7 Cardozo Public Law Policy & Ethics Journal 343-394 (2009).
• Eugene R. Milhizer, So Help Me Allah: An Historical and Prudential Analysis of Oaths as Applied to the Current Controversy of the Bible and Quran in Oath Practices in America, 70 Ohio State Law Journal 1-71 (2009).
• A David Pardo, Judicial Discretion in Talmudic Times and the Modern Era, 7 Cardozo Public Law, Policy & Ethics Journal 429-454 (2009).
• Steven D. Smith, Discourse in the Dusk: The Twilight of Religious Freedom?, (Reviewing Kent Greenawalt, Religion and the Constitution--Volume 2: Establishment and Fairness.) 122 Harvard Law Review. 1869-1907 (2009).

Cert. Granted On Taxpayer Standing To Challenge White House Faith-Based Office

Yesterday, the United States Supreme Court granted certiorari in Hein v. Freedom From Religion Foundation, No. 06-157. (See prior posting on filing of petition for cert. [Updated:] Here is the Brief in Opposition [Westlaw link] and the Solicitor General's reply brief to the petition.) The case involves the question of whether taxpayers have standing under the Establishment Clause to challenge activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit Court of Appeals held that there is taxpayer standing to challenge Executive Branch spending for organizing national and regional conferences and for making speeches promoting faith-based funding, even though these activities were paid for from a general appropriation without Congressional earmarking of the funds for a specific program. (See prior posting.) Yesterday's Washington Post reported on the Supreme Court's action. [Thanks to Aaron Stemplewicz & to Marty Lederman via Religionlaw, for the cert. petition and reply brief links.]

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.

Dutch Justice Minister Refuses To Bar Madonna's Concert

As Madonna's "Confessions" concert tour moves through Europe, Christian groups continue-- unsuccessfully-- to protest her mock crucifixion scene. On Friday, Netherlands' Justice Minister Piet Hein Donner refused requests by the Protestant Reform Party to block her appearance. CBC reported yesterday that Donner told those opposing Madonna's act; "Judgment over whether the event in question constitutes blasphemy is not up to the justice minister, but up to prosecutors and ultimately a judge." (See prior related posting.)

US Supreme Court Holds Taxpayers Lack Standing To Challenge White House Faith-Based Initiative Expenditures

This morning in a 5-4 decision in Hein v. Freedom From Religion Foundation, (S.Ct., June 25, 2007), the U.S. Supreme Court held that taxpayers lack standing to challenge expenditures and activities of President Bush's Office of Faith-Based and Community Initiatives, distinguishing the facts from those in the seminal taxpayer standing case, Flast v. Cohen. The majority opinion was written by Justice Alito. Justices Scalia and Thomas, in a concurring opinion, urged that Flast be overruled. Justice Souter wrote the dissent. SCOTUS Blog, as usual, had the first report on the decision. Here are more details:

The plurality opinion was written by Justice Alito, who was joined by Chief Justice Roberts and Justice Kennedy. Here are excerpts from the Court's syllabus of that opinion:

The link between congressional action and constitutional violation that supported taxpayer standing in Flast is missing here. Respondents neither challenge any specific congressional action or appropriation nor ask the Court to invalidate any congressional enactment or legislatively created program as unconstitutional. That is because the expenditures at issue were not made pursuant to any Act of Congress, but under general appropriations to the Executive Branch to fund day-to-day activities. These appropriations did not expressly authorize, direct, or even mention the expenditures in question, which resulted from executive discretion, not congressional action. The Court has never found taxpayer standing under such circumstances....

Respondents argue to no avail that distinguishing between money spent pursuant to congressional mandate and expenditures made in the course of executive discretion is arbitrary because the injury to taxpayers in both situations is the same as that targeted by the Establishment Clause and Flast-- the expenditure for the support of religion of funds exacted from taxpayers. But Flast focused on congressional action, and the invitation to extend its holding to encompass discretionary Executive Branch expenditures must be declined....

Taking the Circuit’s zero-marginal-cost test literally-- i.e., that any marginal cost greater than zero suffices-- taxpayers might well have standing to challenge some (and perhaps many) speeches by Government officials. At a minimum, that approach would create difficult and uncomfortable line-drawing problems.

Justice Kennedy also wrote a separate concurrence in which he said: "It must be remembered that, even where parties have no standing to sue, members of the Legislative and Executive Branches are not excused from making constitutional determinations in the regular course of their duties. Government officials must make a conscious decision to obey the Constitution whether or not their acts can be challenged in a court of law and then must conform their actions to these principled determinations."

Justice Scalia, joined by Justice Thomas, concurred. Here are excerpts from the syllabus of that concurrence:

A taxpayer’s purely psychological disapproval that his funds are being spent in an allegedly unlawful manner is never sufficiently concrete and particularized to support Article III standing.... Although overruling precedents is a serious undertaking, stare decisis should not prevent the Court from doing so here. Flast was inconsistent with the cases that came before it and undervalued the separation-of-powers function of standing. Its lack of a logical theoretical underpinning has rendered the Court’s taxpayer-standing doctrine so incomprehensible that appellate judges do not know what to make of it. The case has engendered no reliance interests. Few cases less warrant stare decisis effect. It is past time to overturn Flast.

Justice Souter wrote a dissent in which Justices Stevens, Ginsburg and Breyer joined. They said, in part:

Here, the controlling, plurality opinion declares that Flast does not apply, but a search of that opinion for a suggestion that these taxpayers have any less stake in the outcome than the taxpayers in Flast will come up empty: the plurality makes no such finding, nor could it. Instead, the controlling opinion closes the door on these taxpayers because the Executive Branch, and not the Legislative Branch, caused their injury. I see no basis for this distinction in either logic or precedent....