Harvard Prof Says Intelligent Design Proponents Must Change Focus

Harvard Law Professor William Stuntz, who is an evangelical Christian, has written an interesting article in the Spring 2006 Harvard Law Bulletin explaining why proponents of intelligent design are destined to lose their debate with evolutionary scientists unless ID proponents radically change their mode of argument. He says:

[T]he proponents [of intelligent design] are too invested in the bottom line. You don't win scientific debates by arguing like lawyers; you win them by arguing like scientists. But my friends in the evangelical Christian community tend to argue like lawyers: They start with the bottom line and look for reasons to support it, just as a lawyer starts with the conclusion that most benefits her client and looks for arguments to support that conclusion. The only way to win a scientific debate is to play by the scientists' rules--start with premises and reason forward to conclusions. And the only way to do that credibly is to make clear at the outset that you're not committed to any conclusion, that you haven't already embraced a bottom line. Religious believers have already failed that test, which is why this debate will end up looking to most people like the debate over evolution in the 1920s. Nonbelievers think that believers are strategic, that we will embrace any argument that works to our benefit. To a large degree, they're right. Unless and until that changes, religious believers won't have any credibility with the secular academic world. We don't deserve to have credibility if we're not honestly engaged in truth-seeking.

Report On "War On Christians" Conference

People for the American Way has posted an extensive summary of the proceedings at last week's conference in Washington, D.C. sponsored by Vision America, titled "The War on Christians and Values Voters in 2006". PFAW reports that the conference speakers focused on claims that people of faith, especially Christians, are under constant attack by radical secularists, homosexual activists, federal judges, non-believers and pagans. Speakers argued that the Right was losing the culture war because it has been too passive and unwilling to fight to defend its beliefs. The main panels at the conference were: (1) Christian Persecution: Reports From The Frontlines; (2) Jews Confront The War On Christians; (3) The Gay Agenda: America Won’t Be Happy; and (4) The ACLU And Radical Secularism: Driving God From Our Public Life.

EEOC Sues On Behalf Of Rastafarian Employees

For the second time in a week, the U.S. Equal Employment Opportunity Commission has filed suit against a business charging it with discrimination against a Rastafarian employee. Last week it filed suit against United Parcel Service for refusing to hire a Rastafarian as a driver helper because of his beard. The most recent suit was against Atlanta-based RaceTrac Petroleum Inc. for firing a Rastafarian from her position as staffing coordinator because she wore dreadlocks and a head wrap for religious reasons. The Atlanta Business Chronicle reports on both the UPS and RaceTrac cases.

Two More Prisoner Cases

In Hudson v. Merline, 2006 U.S. Dist. LEXIS 14463 (DNJ March 8, 2006), a New Jersey federal court permitted a Muslim pre-trial detainee to proceed with his claim that New Jersey prison authorities infringed his free exercise rights by refusing to permit him to attend Friday Jumah prayer services.

In Adamson v. McDonough, 2006 U.S. Dist. LEXIS 13715 (ND Fla., March 29, 2006), a Florida federal district judge accepted the Magistrate Judge's recommendation and held that prohibiting a Florida prisoner from sending out mail to solicit pen pals does not infringe his right to free exercise of religion.

FLDS Not Welcome In Saskatchewan

A Canadian Press report yesterday says that Saskatchewan's attorney general and Minister of Justice, Frank Quennell, does not welcome the news that the Fundamentalist Church of Jesus Christ of Latter Day Saints may be planning to create a colony in Saskatchewan. The fundamentalist Mormon splinter group practices polygamy and has been embroiled in legal battles in the United States. (See prior posting.) Quennell said, "Polygamy is against the law in Canada and perhaps more importantly, there are laws against the sexual exploitation of children and minors. Those laws will be enforced in Saskatchewan and we certainly don't have the welcome mat out for anybody who would break them."

Religious Groups Active In Immigration Law Reform Debate

Today's Knight-Ridder News Service profiles the growing role of religious groups, particularly the Catholic Church, in the debate over reform of U.S. immigration laws. These groups have added a moral voice to the debate, joining with business to press for more protection for undocumented aliens. On the other hand, the Christian Coalition has taken a strong stand against liberalization of immigration laws, saying that it would reward those who break the law.

Catholics Lead Drive In Pakistan To Repeal Blasphemy Law

In Pakistan, Archbishop Lawrence Saldanha, president of Pakistan's Catholic Bishops Conference, is leading a movement to repeal a portion of Pakistan's blasphemy law, according to America: The Catholic Weekly Magazine. The drive is aimed at two parts of Penal Code Ordinance 295. Section 295-B mandates life imprisonment for desecration of the Koran. Section 295-C calls for thee death penalty for anyone who defames or insults the Prophet Muhammad. The Bishop's National Commission for Justice and Peace says that in more than 100 recent blasphemy cases in which defendants were acquitted, the accusers were shown by the court to have been motivated by personal grudges or hope of financial gain. Even though Muslims make up 97 per cent of Pakistan's population, they widely see themselves as threatened by India's Hinduism, and Ordinance 295 is a popular reaction to this threat.

Judge Pryor Discusses Religion and Public Life

Judge William H. Pryor, Jr., who sits on the U.S. 11th Circuit Court of Appeals spoke at the University of Alabama Friday as part of a Symposium on the Role of Religion in Public Life. The Crimson White today reports that Pryor said his faith gives him a moral duty to obey the law because he swore an oath to protect the Constitution. He also said he considers his job "a form of prayer" that "honors the Creator's gifts". In the Q&A, Pryor said that if a judge's religious convictions come into conflict with the law, the judge should recuse himself from the case.

Islamic Reformers In U.S. Featured

Today's Boston Globe carries an interesting article on increasing pressure by Muslim scholars, intellectuals and professionals in the United States to liberalize Islam and align its teachings with American democratic values. One of those reformers is scholar Ahmed Mansour, who fled to the United States after a fatwa was issued against him in his native Egypt. Mansour was recently brought in as a defendant in a suit that has been filed by the Islamic Society of Boston. ISB claims that defendants' negative statements interfered with fundraising for the mosque. Mansour has attacked ISB over radical Islamist positions supported by the mosque. The suits and counter-suits surrounding the Islamic Society of Boston's efforts to build a mosque in Roxbury are discussed in an article that appeared last month in the Daily Standard.

House-Passed Education Bill Contains Religious Protections

Last Thursday the House of Representatives passed, and sent on to the Senate, the College Access and Opportunity Act (H.R. 609). (Reuters report.) The House Committee has issued a Summary of the bill's complex provisions.

Sec. 112 of the bill amends the current 20 USC Sec. 1011a to include a provision stating that it is the sense of Congress that students at institutions of higher education "should not be intimidated, harassed, discouraged from speaking out, discriminated against, or subject to official sanction because of their personal political, ideological, or religious beliefs...." It also adds a provision attempting to insure that sanctions imposed on students for disrupting a college sponsored class, performance or speech are imposed "objectively, fairly, and without regard to the student’s personal political, ideological, or religious beliefs".

Also Section 495 of the bill amends the current 20 USC Sec. 1099b to provide that the criteria for federal recognition of higher education accrediting agencies must include as one factor whether the accrediting agency consistently applies and enforces standards "that consider the stated missions of institutions of higher education, including such missions as inculcation of religious values".

New Charges of Chinese Persecution Of Falun Gong

Austrian law professor Manfred Nowak, United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is looking into new charges of persecution of the Falun Gong by the government of China. Reuters reported last week on allegations that up to 6,000 people were being held at a state-run concentration camp in the northern city of Shenyang. It is claimed that some of the prisoners have been killed and their organs or tissues sold.

New Articles and Books

A large number of articles and books of interest have recently been published:

The Winter 2006 issue of the Journal of Church and State containing numerous articles, book reviews and features has just appeared.

From SmartCILP:

• Steven K. Green, A Legacy of Discrimination"? The Rhetoric and Reality of the Faith-Based Initiative: Oregon as a Case Study, 84 Oregon Law Review 725-777 (2005).
• Philip Hamburger, Religious Freedom in Philadelphia, 54 Emory Law Journal 1603-1631 (2005).
• Sue Ann Mota, Competing Judicial Philosophies and Differing Outcomes: The U.S. Supreme Court Allows and Disallows the Posting of the Ten Commandments on Public Property in Van Order v. Perry and McCreary County v. ACLU, 42 Willamette Law Review 99-122 (2006).
• Brian D. Wassom, Unforced Rhythms of Grace: Freeing Houses of Worship from the Specter of Copyright Infringement Liability, 16 Fordham Intellectual Property, Media & Entertainment Law Journal 61-240 (2005).

Books:

From Random House, Jon Meacham, American Gospel : God, the Founding Fathers, and the Making of a Nation (April 2006), reviewed in this week's Newsweek. [Thanks to Joel Sogol via Religionlaw for the lead.]

From HarperCollins, Michael Burleigh, Earthly Powers: The Clash of Religion and Politics in Europe From the French Revolution to the Great War (Feb. 2006), reviewed in today's New York Times .

Feb. and March Prisoner Free Exercise Cases

In Sample v. Lappin, (DDC, March 31, 2006) (Opinion, Order), an Orthodox Jewish prisoner challenged restrictions imposed by the Federal Bureau of Prisons on his use of wine for religious purposes. Regulations allow him access to sacramental wine only if permitted by the warden and if administered by an authorized rabbi during the course of a religious ritual. The DC federal district court found that plaintiff had made a prima facie showing that this policy violates the Religious Freedom Restoration Act. However, neither party had made an adequate showing for the court to determine if the BOP policy was the least restrictive means of furthering the government's compelling interest in controlling alcohol consumption in prisons.

In Figel v. Overton, 2006 U.S. Dist. LEXIS 13892 (WD Mich., Feb. 14, 2006), on remand from the Sixth Circuit, a federal Magistrate Judge in Michigan permitted a prisoner to proceed with a claim for damages growing out of the confiscation of religious books not received directly from the publisher or an authorized vendor. He recommended that defendants' claims of qualified immunity be denied.

In Diaz v. Goord, 2006 U.S. Dist. LEXIS 14309, (WD NY, March 20, 2006), a New York federal district court found that while atheism qualifies as a religion for purposes of a prisoner's free exercise claim, plaintiff had failed to allege how the confiscation of his atheist pendant and chain infringed on his right to practice his religion.

In Scrible v. Miller, a West Virginia federal district court judge adopted a federal Magistrate Judge's recommendations that a Rastafarian prisoner be permitted to proceed with his claims under the Free Exercise clause and the Religious Land Use and Institutionalized Persons Act. Plaintiff alleged that he has taken the vow of the Nazarite, and sought an exemption from the state prison's grooming policy, a religious diet, and assistance in finding a Rastafarian leader and/or literature. The Magistrate Judge's opinion is at 2006 U.S. Dist. LEXIS 14411, (ND WVa, Feb. 2, 2006), and the district judge's opinion is at 2006 U.S. Dist. LEXIS 14394 (ND WVa., March 15, 2006).

Justice Scalia Creates Tempest At Boston Red Mass

Yesterday’s edition of The Pilot, published by the Catholic Archdiocese of Boston, carried a flattering story about Justice Antonin Scalia’s attendance at the Catholic Lawyer’s Guild annual Red Mass, held on March 26 at Boston’s Holy Name Cathedral of the Holy Cross. Traditionally the Red Mass opens the Court’s term, but it was delayed this year because of scheduling issues. While The Pilot’s story reported on Scalia’s talk after the Mass at a luncheon sponsored by the Guild, it was silent about a controversy that was created by Scalia between Church and the lunch.

As Scalia was leaving the Mass, a Boston Herald reporter, Laurel J. Sweet, asked him whether he receives a lot of criticism for publicly proclaiming his conservative Catholic beliefs. "You know what I say to those people?" Scalia replied, flicking his hand under his chin. "That’s Sicilian," he said. He continued: "It’s none of their business. This is my spiritual life. I shall lead it the way I like." The Boston Herald article described the under-the-chin gesture as "obscene". This led Justice Scalia to write a letter to the Herald (full text) complaining that the gesture was not obscene, but merely meant "I couldn’t care less".

It turns out that free-lance photographer Peter A. Smith actually caught Scalia’s gesture on film. Smith is a part-time faculty member in Journalism at Boston University and was covering the event for the Catholic Pilot. As the controversy raged, he released the photo and gave his account of what happened: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, Vaffanculo, punctuating the comment by flicking his right hand out from under his chin.'" The Italian phrase means "f--- you." The Boston Herald reporter who had asked Scalia the original question agreed with Smith’s story, but said he did not hear Scalia say "Vaffanculo".

Proving the old adage that "no good deed goes unpunished", yesterday's Boston Herald reported on photojournalist Peter Smith's fate. His decision to release of the photo of Justice Scalia led The Pilot to fire the professor-photographer who had freelanced for the paper for ten years.

Malaysian Man Fined For Missing Friday Prayers

A rather surprising story, even for Malaysia, appears in today’s edition of the New Straits Times. The Malaysian state of Kelantan has enacted a law known as the Kelantan Islamic Council and Malay Customs Enactment 1986 (Amendment 1994). It makes it an offense, punishable by a fine or up to 6 months in jail, for a Muslim to be absent from prayers in his sub-district for three consecutive Fridays. Mohamad Taib, in a rare prosecution, was charged under the Act. He claimed his absence was due to his being ill with asthma, but Syariah Court judge Mohd Hafiz Daud rejected the excuse, suggesting that straying from God is what caused Taib’s asthma in the first place. Taib paid a fine of RM300 (around $82US).

Afghanistan Convert Case Continues To Have Legal Implications Worldwide

The divide between Western countries and many Muslim nations over the tradition of religious freedom was emphasized in the last few days in the wake of the last minute escape from Afghan courts of Muslim convert to Christianity, Abdul Rahman.

On Thursday, by a vote of 427-0, the U.S. House of Representatives passed H. Res. 736 strongly condemning Afghanistan's attempts to prosecute Rahman for abandoning Islam:

Resolved, That the House of Representatives-- (1) condemns, in the strongest possible terms, the enforcement of laws against apostasy; (2) requests the President to continue to work with the Government of Afghanistan to establish better protections for religious minorities, including converts to minority religions, and to enhance human rights protections in Afghanistan; and (3) calls upon the Government of Afghanistan, and especially President Hamid Karzai, to continue to conform Afghan laws to Afghanistan's international human rights treaty obligations, thereby protecting Afghan citizens who have converted or plan to convert to other religions from prosecution.

The Century Foundation today published an analysis of lessons learned from the Rahman episode about the tensions between Islamic law and Western law still faced by Afghanistan. It reports that President Hamid Karzai has presented the Afghanistan Parliament with a new slate of reformist Supreme Court judges. It is unclear whether Parliament will approve them. In a U.S. News & World Report column posted Thursday, Jay Tolson suggested that it was unfortunate that Afghanistan dismissed the Rahman case. He says: "Kabul has only put off its rendezvous with an inevitable constitutional dilemma.... At the same time, the dismissal robs the larger Muslim world of a golden opportunity for religious moderates to challenge an Islam-wide crisis of authority that allows extreme, literalist interpretations of Islamic law to go unchallenged."

Meanwhile, many other countries continue to impose legal restrictions on proselytizationtion and conversion. The Toronto Star today published an excellent summary of the law in ten Middle Eastern countries on religious conversion. And, according to Bos News Life, on Friday the Algerian Parliament approved a new law aimed at preventing Christian proselytization in the country. It imposes a 2 to 5 year prison sentence and a fine equivalent to $12,000 (US) on anyone who forces, urges or tempts a Muslim to convert to another religion. It also prohibits manufacturing, storing, or circulating publications or audio-visual material aimed at "destabilizing attachment to Islam." Finally the new law permits the practice of religions other than Islam only in buildings that have been licensed by the government.

Assets of Polygamous FLDS Sect Still An Issue

The Associated Press reports that a hearing in a Utah state court yesterday revealed new complexities in the court's attempt to supervise the trust that holds assets belonging to the Fundamentalist Church of Jesus Christ of Latter Day Saints. The FLDS Church has gained notoriety because of the polygamous practices of its members and the activities of its former leader, Warren Jeffs, who may now be founding a new colony in Saskatchewan. An attorney for the court-appointed trustee yesterday told Judge Denise Lindberg that resources from the United Effort Plan trust may have been diverted to new FLDS outposts in Colorado, South Dakota, Texas and Nevada. Judge Lindberg called on law enforcement officers in the sect's communities of Colorado City, Colo., and Hildale, Utah, to end their current obstructionism and cooperate in the investigation of the use of UEP funds.

Developments In Priest Sexual Abuse Claims

Today's National Catholic Reporter carries a story on hearings taking place in state legislatures across the country on proposals to extend the statute of limitations in cases alleging priest sexual abuse of minors. In Maryland, Washington Archdiocese chancellor Jane Belford argued: "By eliminating time limits or vastly extending them, these bills unfairly require a religious organization or other private entity to try to defend a civil lawsuit involving allegations that could be 30 to 40 years old. Memories fade over time, and witnesses and accused individuals may have died, disappeared or become infirm." The bill pending in Colorado that focuses only on suits against religious and private institutions has led the Catholic Church in that state to urge that sexual abuse in public schools and public institutions should be subject to the same rules.

Meanwhile, early last month a Colorado federal district court refused to permit the Archdiocese of Denver remove to federal court claims that had originally been filed against it in state court. In Doe v. Archdiocese of Denver, 413 F. Supp. 2d. 1187 (D. Colo., Feb. 7, 2006) and Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181 (D. Colo, Feb. 7, 2006), the court held that claims that the Church was negligent in hiring, supervising or retaining offending priests do not raise First Amendment issues that justify removal of the cases to federal court.

Navy Policy For Chaplains-- Analysis and Attack

Jews On First yesterday posted an excellent analysis of the U.S. Navy's recently modified instructions for its chaplains (SECNAV Instruction 1730.7C, Feb. 1, 2006). The 20-page document gives extensive guidance to chaplains and their commanders. It says that except in extraordinary circumstances, any religious element in a Navy function that is not a religious service must be non-sectarian. However a chaplain may refuse to participate in any program that is inconsistent with his or her religious beliefs. The instructions call on chaplains to function in a pluralistic environment that respects the free exercise of religion by all military members.

Yesterday, former Alabama Supreme Court Justice Roy Moore joined dissident Navy Chaplain Gordon James Klingenschmitt at a news conference. Klingenschmitt says that the Navy's policy violates his First Amendment rights by prohibiting him from reciting Christian prayer at non-religious events. Today's Birmingham, Alabama News reports that Klingenschmitt disobeyed an order not to wear his Navy uniform at the news conference. Instead, he invited disciplinary action by appearing in uniform, with a stole around his neck, where he specifically invoked Jesus Christ in prayer. Later, he changed into civilian clothing and a clerical collar and explicitly criticized the Navy's policy.

Apparently Klingenschmitt is not the only chaplain who has had a run-in with the Navy. There has just become available on LEXIS a case from last year brought by another chaplain who was forced into early retirement. In Wilkins v. United States, 2005 U.S. Dist. LEXIS 41268 (SD Cal., June 29, 2005), a Navy chaplain claimed that various institutionalized practices of the Navy's Chaplain Corps violated the First Amendment's Establishment and Free Exercise Clauses, as well as the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments. In particular, he allged discrimination against non-liturgical Protestant chaplains. The court rejected all of his claims.

Ohio Autopsy Law Respects Jewish Halacha

The Ohio General Assembly last week passed and sent to the Governor for signature Am. Sub. H.B. 235. The bill, which amends the Coroner's Law, includes provisions to take account of religious concerns about autopsy procedures. Ohio law already has a provision (ORC Sec. 313.131) relating to autopsy when the deceased had religious objections to the procedure. It permits a rapid judicial hearing to determine if the autopsy is a compelling public necessity. The new bill, which more generally deals with disposal of specimens after an autopsy, provides:

If an autopsy is performed ... and pursuant to section 313.131 ... the coroner has reason to believe that the autopsy is contrary to the deceased person's religious beliefs, the coroner shall not remove any specimens ... from the body of the deceased person unless removing those specimens ... is a compelling public necessity. Except [for a DNA specimen retained for diagnostic, evidentiary or confirmatory purposes]] ..., if the coroner removes any specimens from the body of the deceased person, the coroner shall return the specimens, as soon as is practicable, to the person who has the right to the disposition of the body.

These provisions are consistent with Jewish religious law regarding disposal of body tissue and organs. (Background.) Ohio Jewish Communities and Agudath Israel worked with drafters of the law to assure that the final version respected Halacha (Jewish law). (See prior posting.) [Thanks to OJC March 24, 2006 Internal Newsletter for the information.]