Kentucky Prohibition On Funeral Protests Struck Down

The Associated Press last week reported that a Kentucky federal district court has temporarily enjoined the enforcement of Kentucky's law barring protests within 300 feet of military funerals and memorial services. The law was aimed at members of the Westboro Baptist Church in Topeka, Kansas who go around the country carrying signs at military funerals claiming that soldiers' deaths are punishment from God for the U.S. tolerating homosexuality. The court in McQueary v. Stumbo (ED KY, Sept. 26, 2006) found Kentucky's law too broad, saying:

The provisions at issue in this case burden substantially more speech than is necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid. Section 5(1)(b) prohibits all congregating, picketing, patrolling, demonstrating or entering on property within 300 feet of a funeral whether such activities interfere with the funeral or not and whether such activities are authorized by funeral attendees or not. It prohibits such activity whether the persons involved in the activities are visible to funeral participants or not and whether they are making any sound that funeral participants can hear or not. Thus, in addition to prohibiting intrusive activities, Section 5(1)(b), prohibits activity that would not interfere with a funeral and prohibits communications that are neither necessarily unwanted nor so obtrusive that they cannot be avoided by the funeral attendees....

The 300-foot zone would encompass public sidewalks and streets and would restrict private property owners' speech on their own property. The zone is large enough that it would restrict communications intended for the general public on a matter completely unrelated to the funeral as well as messages targeted at funeral participants.

EEOC Sues Dentist Charging He Imposed Scientology On Employee

The U.S. Equal Employment Opportunity Commission has filed suit against a dentist in Plano, Texas, according to a report in today's Dallas Morning News. The suit claims that Jessica Uretsky, a receptionist who worked for Dr. K. Mike Dossett, was fired when she refused to adopt business practices based on Scientology. The EEOC alleges that Dossett blamed business slowdowns on a lack of "positive energy" among employees. Dossett denies the charges, says that Uretsky, who had worked for him for just over one month, was fired for poor job performance. Apparently Dossett, who was once a member of the Church of Scientology, is no longer a member, but does use Ron Hubbard's system of business management and organizational techniques.

Court Says St. Louis U. Can Get Urban Renewal Funds Despite Its Religious Origins

Yesterday in a 2-1 decision in St. Louis University v. Masonic Temple Association of St. Louis, (MO Ct. App., Oct. 3, 2006), a Missouri appellate court majority said that the city of St. Louis and the state of Missouri could finance development of a 13,000 seat sports arena by St. Louis University using urban renewal funds. The court rejected claims that the financing violates the Establishment Clause of the U.S. constitution and provisions in Missouri's constitution, Art. IX, Sec. 8, that prohibit the use of public funds to aid a university controlled by a religious creed. The majority opinion interpreted the Missouri constitutional provisions "to prohibit State aid only when an institution is controlled in such a way that religious authorities propagate and advance their religion through school operation." It held that while St. Louis University has a Jesuit tradition, it is controlled and operated by an independent, lay board of trustees. However, instead of affirming the trial court's summary judgment decision in favor of the University, the court transferred the case to the Missouri Supreme Court because of the general interest and importance of the issues involved.

Judge Mooney, concurring in the transfer of the case to the state's Supreme Court, wrote that he would not affirm the trial court's summary judgment. He believed that a trial was necessary to determine whether St. Louis University, despite its governing documents, is no longer in fact controlled by the Catholic creed.

Denver Pre-School Tuition Plan Opposed On Church-State Grounds

A proposal will appear on the ballot in Denver, Colorado this November to increase the city's sales tax in order to fund tuition credits for families to enroll their 4-year-olds in private pre-school programs. The Rocky Mountain News reported yesterday that the Mountain States Regional Office of the Anti-Defamation League has announced its opposition to the ballot measure, saying it violates principles of separation of church and state. ADL Regional Director Bruce DeBoskey said,"Although the goals of the Denver preschool plan are laudable, the proposed tax increase would raise serious church/state separation issues because it permits government funds to go to religious institutions to teach religion, without any restrictions or guidelines whatsoever on the use of those funds."

Preacher Sues Kentucky University For Access To Campus

The Lexington (KY) Herald Leader yesterday reported that an evangelical preacher from Symsonia, Kentucky last week filed a federal lawsuit against Murray State University because it is requiring him to have sponsorship of a student organization before he can preach at the University's Curris Center for Student Life. Brother Jim Gilles, represented by the Alliance Defense Fund (press release), says that the University is arbitrarily enforcing its speaker policy, after permitting him in the past to speak anywhere on campus. The complaint (full text) says that the university's policy operates as a prior restraint on speech and religious activity and denies Gilles equal protection of the laws. Gilles, who says he found God in 1981 while attending a Van Halen concert, speaks at universities and state capitals across the country.

Wisconsin State Employee Charity Campaign Cannot Exclude Religious Charities

In Association of Faith-Based Organizations v. Bablitch, (WD WI, Sept. 29, 2006), a Wisconsin federal district court held that it is unconstitutional for the state to exclude a religious charitable organization from participation in the Wisconsin State Employees Combined Campaign solely because the charity discriminates on the basis of religion in choosing its governing board and employees. In reaching the conclusion that the First Amendment rights of religious charitable organizations are infringed by the state's policy, the court rejected the state's arguments that the exclusion furthered a state policy against religious discrimination and that the presence of religious groups would cause controversy and reduce overall participation in the charitable campaign.

Yesterday's Milwaukee Journal Sentinel says that the state will not appeal the ruling. It also points out that to qualify for inclusion in the Combined Campaign, religious charities will still have to demonstrate that they do not discriminate in the delivery of services.

Turkey's Justice Minister and President Fear Islamism

In Turkey last week end, Justice Minister Cemil Çiçek complained, in a television interview, that the country's Religious Affairs Directorate is doing an inadequate job in providing religious education to young people. This has led people to accept misinformation about Islam as being accurate teachings, he said according to a report in Monday's Turkish Daily News. Meanwhile, on Sunday, Turkey's President Ahmet Necdet Sezer, in his last address to Parliament before he steps down next May, warned that the country faces a threat from rising Islamism. Another report in Monday's Turkish Daily News quotes Sezer, a former chief judge of the Constitutional Court, as saying: "The principle of secularism is the core of all the values that constitute the Republic of Turkey."

InterVarsity Christian Fellowship Sues University of Wisconsin For Recognition

Yesterday, the Alliance Defense Fund announced that it has filed a federal lawsuit on behalf of the University of Wisconsin-Superior's student InterVarsity Christian Fellowship. The University refused to grant recognition to the student group because it limits its leadership positions to Christians, in violation of the University's anti-discrimination policy. The complaint (full text) alleges that this violates the group's First Amendment rights to freedom of speech, assembly and religion, and denies the group equal protection of the laws. Reporting on the lawsuit, today's Badger Herald quotes university officials as saying that this case, as well as ones involving non-recognition of the Knights of Columbus and of the Roman Catholic Foundation on the UW-Madison campus, have more to do with concern over stricter allocation of student fees than with religion.

Student's Religious Speech Right Upheld, But No Relief Granted

In an interesting case decided two weeks ago by a Michigan federal district court, parents of a fifth-grade student in Saginaw, Michigan succeeded in proving that their son's religious speech was improperly limited by public school officials, but a combination of qualified immunity and mootness (since the student was no longer enrolled at the school) precluded plaintiffs from either recovering damages or obtaining injunctive and declaratory relief. In Curry v. School District of Saginaw, (ED MI, Sept. 18, 2006), students were required to take part in a "Classroom City Project", in which they constructed a fictitious city in the gymnasium from cardboard refrigerator boxes, elected city officials, constructed storefronts and made products to sell during a three-day event.

Student Joel Curry, largely inspired by his parents' suggestions, created candy cane ornaments from pipe cleaner as his product. He attached a card to the ornaments giving them a religious interpretation. While Joel received an "A" for his performance (a grade that the court described as a generous one for his parents' efforts), the school principal told Joel that he could not sell his product with the religious message attached. The court decided that this limitation improperly restricted the student's rights of expression (though not his free exercise rights). In reaching this conclusion, the court wrote:

The lessons Classroom City was designed to teach presumably included economics, marketing, civics, and entrepreneurialism. Standing alone, the candy canes with a religious card attached met those ostensible goals.... In fact, a religious theme might be viewed as filling a market niche. Joel would not be the first to discover the commercial allure that religion has brought to capitalism. It appears that he learned that lesson well by ascribing a religious -- albeit unoriginal and inaccurate -- aura to an historically secular object to enhance its marketability.

Churches, Politics, and Voters' Guides

As Agape Press reports on two recent studies showing that only 6% of clergy and 11% of lay church members said they feel their own church is "very involved in local politics or political issues," the Decatur, Alabama Daily News reports on two alternative voters guides that will be distributed in the state to church members. One guide is published by Christian Action Alabama. It focuses on candidates' views on specific legislative issues. A more recent entry is a guide by Redeem the Vote that asks candidates more general questions about the church they attend, their favorite Bible verse, how they will publicly acknowledge their faith, and what role their faith will pay in formulating public policy.

New Jersey Supreme Court Will Hear RLUIPA Appeal

Last week, the New Jersey Supreme Court agreed to hear an appeal in a RLUIPA case brought by St. Joseph Korean Catholic Church against the borough of Rockleigh. A state court of appeals upheld the town's refusal to grant a zoning variance to the church. These developments were reported Saturday by North Jersey.com.

Cert. Denied In Challenge To California School's History Unit On Islam

On Monday, the U.S. Supreme Court denied certiorari in Elkund v. Byron Union School District, No. 05-1539, a case challenging a California elementary school's role playing activities that were designed to acquaint students with Islam. (See prior posting.) In reporting on the denial of cert., the Associated Press noted that the case involved a challenge by school parents to a world history unit titled "The Roots of Islam and the Empire" that had students reading pages from the Koran and studying Islam's Five Pillars of Faith. The 9th circuit had agreed that the unit did not create Establishment Clause problems.

Maryland Prison Policy On Religious Holidays Questioned

The Associated Press reported Monday that advocates for prisoners are questioning Maryland's policy that guarantees prisoners only the right to observe one holy day per year while in prison. Some institutions permit two, but even that poses problems for Jewish inmates. Prisoners in Maryland also can gather twice each week for religious purposes-- once for worship and once for study. Prison officials say that they have 29 recognized religions. The Maryland Division of Corrections says it is looking into the complaints about limits on holiday observance.

Senate Passes Bill To Protect Tithing In Chapter 13 Bankruptcies

The Salt Lake Tribune reports that on Saturday morning, before it adjourned for the election break, the U.S. Senate passed a bill to amend the Bankruptcy Code to overrule a recent decision that held that in Chapter 13 bankruptcy proceedings, tithes to a church could not be paid until the debtors had repaid their other creditors. More specifically, the court held that above-medium income debtors in Chapter 13 cannot deduct charitable contributions from their payment plans. The Senate bill was sponsored by Senators Orin Hatch and Barack Obama. In a release on the bill, Sen. Hatch said: "As a rule, I do not like impromptu legislative responses to judicial decisions,” Hatch said. “But the religious practices and beliefs of individuals should not be subject to the whims of judicial interpretation. This bill ensures those who tithe can continue to live their faith while in bankruptcy." The House of Representatives has not yet acted on the bill.

Four Justices, Other Officials, At Sunday's Red Mass

Four of the U.S. Supreme Court's five Catholic justices attended the Red Mass on Sunday at the Roman Catholic Cathedral of St. Matthew in Washington. Today's New York Times reports that many other cabinet members and politicians were also in attendance at the service that marks the opening of the Supreme Court's term. Here is the full text of the homily delivered at the service by Washington Archbishop Donald W. Wuerl. In it, he said: "The assertion by some that the secular voice alone should speak to the ordering of society and its public policy, that it alone can speak to the needs of the human condition, is being increasingly challenged." Zenit points out that this was Wuerl's first Red Mass. It was co-celebrated by Archbishop Pietro Sambi, the apostolic nuncio to the United States.

Malawi Human Rights Commission Orders Buddha Statues Out Of Orphanage

Last week, the Malawi Human Rights Commission ordered a Buddhist orphanage funded from Taiwan to remove statues of Buddha from all its dormitories. The Commission said their presence could force children into accepting Buddhism. Malawi's Constitution (Chap. IV, Sec. 23)provides how children and orphans are to be treated. Spero News reported on these developments on Sunday. Also, Malawi's deputy information minister, John Bande, praised the Buddhist community for constructing the orphanage but asked officials at the to consider allowing children there to eat meat.

Compromise On Chaplains In Defense Appropriations Act

On Friday, Congress passed the FY 2007 Defense Appropriations Act before it adjourned for its election break. The bill had been held up over language on military chaplains. The House version would have assured chaplains that they could pray according to the dictates of their own conscience, except for narrow limitations compelled by military necessity. (See prior posting.) The Senate version did not contain this language. The Conference Committee eliminated completely from the bill any language about chaplains. However the Conference Committee Report included language directing the Air Force and the Navy to rescind recent policies that they had adopted, and requiring them to reinstate earlier policies:

The conferees direct that the Secretary of the Air Force rescind the policy and revised interim guidelines concerning the exercise of religion in the Air Force issued on February 9, 2006, and direct that the Secretary of the Air Force reinstate the policy that was set fort in Air Force directive 52-1 dated 1 July 1999. The conferees further direct that the Secretary of the Navy rescind Secretary of the Navy Instruction 1730.7C dated February 21, 2006, titled "Religious Ministry within the Department f the Navy" and direct that the Secretary of the Navy reinstate the policy that was set forth in the Secretary of the Navy Instruction 1730.7B dated October 12, 2000.

The regulations that Congress ordered rescinded had been explicit in calling on chaplains to offer non-sectarian prayers when officiating at military events other than religious services. The earlier versions that are to be reinstated are less explicit on this issue. (Background on Navy policy. Background on Air Force policy.)

This is merely a temporary solution, however, to the debate over the extent to which military chaplains should be permitted to offer explicitly sectarian prayers at service-wide ceremonies with interfaith audiences. Those on both sides claimed that the compromise was a temporary victory. Jay Sekulow of the American Center for Law and Justice said:

In a temporary victory, Congress rolled back those regulations that were causing the difficulty for the chaplains and reinstated earlier regulations that were more protective of the free exercise of religion. Congress also said that they will visit this issue fully in January when the new Congress returns. We anticipate major hearings on these issues.

On the other side, Mikey Weinstein, founder of the Military Religious Freedom Foundation said that keeping the House language out of the final bill was a victory.

Does Yom Kippur Ceremony Violate Los Angeles Law?

LA Voice.org on Friday raised the question of whether a pre-Yom Kippur ceremony practiced by some traditional Jews violates the Los Angeles Municipal Code. The ceremony of kaparot involves swinging a live chicken over one's head, while reciting a set prayer in order to symbolically rid oneself of one's sins. It is intended to imbue people with the feeling that their very lives are at stake as they begin the Yom Kippur prayers for repentance. After the ceremony, the chicken is slaughtered and donated for a needy family to eat for the pre-Yom Kippur meal (or an equivalent value is given to charity). Most traditional Jews today swing money to be donated to charity over their head instead of a live chicken, but some communities still practice the more traditional form of the ritual. Los Angeles Municipal Code Chap. V, Section 53.67 prohibits animal sacrifice, which is defined broadly as "the ... killing of any animal in any religious ... ritual ... wherein the animal has not been ... killed primarily for food purposes, regardless of whether all or any part of such animal is subsequently consumed."

"First Monday" Without Oral Arguments To Accommodate Yom Kippur

Tomorrow, the first Monday in October, is the traditional day for the U.S. Supreme Court to open its term. However, because tomorrow is also the Jewish holy day of Yom Kippur, the opening day will be without the presentation oral arguments, according to Law.com.

Some More Prisoner Free Exercise Cases

In Fabricius v. Maricopa County, 2006 U.S. Dist. LEXIS 67423 (D AZ, Sept. 14, 2006), an Arizona federal district court rejected a free exercise claim by a jail inmate who alleged that the fact that female guards could see him using the toilet and shower violates the principles of modesty required by his Catholic religion. It also rejected his Establishment Clause claim based on allegations of the jail's lengthy playing of music that advanced Judeo/Christian religious doctrines.

In Massingill v. Livingston, 2006 U.S. Dist. LEXIS 68249 (ED TX, Aug. 9, 2006), a Texas federal magistrate judge recommended rejection of free exercise and RLUIPA claims of a prisoner who was a member of the Israyl Identity faith. The prisoner challenged the application of the prison's grooming requirements to him, seeking to grow a beard and shoulder-length hair. He also wanted to be kept separate from inmates of other races, and to have his meals for Saturday delivered to him on Friday so that prison employees who serve him would not have to work for him on Saturday.

In Vega v. Lantz, 2006 U.S. Dist. LEXIS 69120 (D CT, Sept. 26, 2006), a Connecticut federal district court permitted claims by a Muslim prisoner to proceed against certain of the defendants. The plaintiff had charged denial of daily congregate prayer, of Jumah services when no Islamic chaplain is present, a lack of timely Ramadan prayers,, insufficient calories in the meals during Ramadan, inability to purchase Islamic items, no Halal meats, no inmate chaplains, denial of his request for circumcision, improper handling of the Quran, and discrimination.

In Hill v. Cruz, 2006 U.S. Dist. LEXIS 69094 (SD TX, Sept. 26, 2006), a Texas federal district court dismissed for lack of proof a Muslim prisoner's claim that processed American cheese containing pork enzymes is placed in non-pork food entrees at the prison.

In Jordan v. Carr, 2006 U.S. Dist. LEXIS 68753 (ND IA, Sept. 22, 2006), an Iowa federal district court rejected a jail inmate's claim that he should be allowed to attend both Christian and Muslim religious services.

In Jonas v. Schriro, 2006 U.S. Dist. LEXIS 69427 (D AZ, Sept. 25, 2006), an Arizona federal district court rejected First Amendment and RLUIPA claims by a Native American prisoner who complained that he was prohibited from engaging in pipe ceremonies, smudging, wearing of colored headbands, and using a sweat lodge.