Arguments Underway In Challenge To Australian Religious Hatred Law

The Age reports on interesting arguments that are under way this week in the Court of Appeals of the Australian state of Victoria. Victoria's Racial and Religious Tolerance Act prohibits inciting hatred against a person or class of persons. In an appeal by the Christian group, Catch the Fire Ministries, and two pastors , the Islamic Council of Victoria argued that villifying Islam necessarily vilifies Muslims who hold those beliefs. The appellants argued that one could hate ideas without hating individuals who hold them. If the law is not interpreted that way, they argued, it becomes a blasphemy law. The pastors charged with violating the law claimed more generally that it violates free expression guaranteed by Australia's constitution and that it violates international treaties signed by Australia. The case grows out of comments made by Pastor Daniel Scott at a seminar on Islam sponsored by Pastor Danny Nalliah's Catch the Fire Ministries, and comments in an online newsletter. (Background from CNSNews.com.).

More Prisoner Free Exercise Cases

In Smith v. Kurmis, 2006 U.S. Dist. LEXIS 57667 (ND IN, Aug. 3, 2006), an Indiana federal district court dismissed the complaint of a pre-trial detainee who argued that placing him in administrative segregation violated his free exercise of religion by preventing him from attending religious services.

In Pinkston-El v. Snyder, 2006 U.S. Dist. LEXIS 58001 (SD IL, Aug. 17, 2006), an Illinois federal district court accepted the recommendation of a Magistrate Judge and rejected a prisoner's statutory and constitutional free exercise challenges to the Illinois Department of Corrections grooming policy. That policy prohibits "hairstyles that create a risk that contraband hidden in the hair cannot be detected or that impede searches for contraband or that pose a risk that contraband hidden in the hair may injure the employee(s) charged with searching the offender." Plaintiff Pinkston-El, a member of the Moorish Science Temple, had taken a Nazarite vow that precluded him from cutting his hair.

In Shidler v. Moore, 2006 U.S. Dist. LEXIS 58097 (ND IN, Aug. 9, 2006), an Indiana federal district court permitted a Sunni Muslim prisoner to move forward with his 1st and 14th Amendment and RLUIPA claims involving denial of prayer oil, denial of communal worship and denial of participation in Ramadan activities, as well as his complaint that classifying him as a Christian and preventing him from using his religious name on his mail prevented him from practicing his religion.

Recent Articles On Religion and Law

From SSRN:
Allan J. Samansky, Tax Consequences When Churches Participate in Political Campaigns (August 2006).

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Recently published in Law Reviews (in part from SmartCILP):

Steven Goldberg, Cutter and the Preferred Position of the Free Exercise Clause, 14 William & Mary Bill of Rights Journal 1403-1419 (2006).

David M. Smolin, Overcoming Religious Objections to the Convention on the Rights of the Child, 20 Emory International Law Review 81-110 (2006).

T. Jeremy Gunn, The Religious Right and the Opposition to U.S. Ratification of the Convention on the Rights of the Child, 20 Emory International Law Review 111-128 (2006).

Patrick McKinley Brennan, The "Right" of Religious Liberty of the Child: Its Meaning, Measure, and Justification, 20 Emory International Law Review 129-155 (2006).

Steven H. Resnicoff, Supplying Human Body Parts: A Jewish Law Perspective, 55 DePaul Law Review 851-874 (2006).

William E. Stempsey, Religion, Philosophy, and the Commodification of Human Body Parts, 55 DePaul Law Review 875-888 (2006).

Li-ann Thio, Control, Co-Optation and Co-Operation: Managing Religious Harmony in Singapore's Multi-Ethnic, Quasi-Secular State, 33 Hastings Constitutional Law Quarterly 197 (2006).

Francis J. Beckwith, The Court of Disbelief: The Constitution's Article VI Religious Test Prohibition and the Judiciary's Religious Motive Analysis, 33 Hastings Constitutional Law Quarterly 337 (2006).

Nigerian Group Presses For Law Protecting Religious Freedom

The Christian Lawyers Fellowship of Nigeria (CLASFON) plans to sponsor a bill in the National Assembly to insure religious tolerance in the country. This Day reports on a press conference held this past week end by the President of CLASFON, Jonathan Kish Adamu, who says that his group, along with the Afri Foundation hopes to counteract the continuing religious conflict in both the northern and southern parts of Nigeria. With support from Open Society Initiative for West Africa, plans are underway to hold a series of conference across Nigeria to broaden support for such a law.

Court Holds RLUIPA Applies To Private Prisons

In Dean v. Corrections Corporation of America, 2006 U.S. Dist. LEXIS 57962 (ND MS, Aug. 16, 2006), a Mississippi federal district court issued an opinion containing an important interpretation of the Religious Land Use and Institutionalized Persons Act. It held that, putting together the complex definitional sections of the statute, RLUIPA applies to a private correctional facility holding prisoners under contract with a state so long as the state receives federal funds for some part of its state prison system.

Religious Displays and Harrison County, WV

Apparently the picture of Jesus in a Harrison County, West Virginia high school that has been the subject of recent litigation (see prior posting) is not the only instance of questionable religious displays in that county. The Charleston (WV) Gazette , in an article about the painting, reports that:

Tokens of Christianity, such as crosses or religious mottos, can be seen in schools and government buildings all over Harrison County. In a women's bathroom at the Harrison County Board of Education offices, there are a few amenities on the toilet. An extra roll of toilet paper. A bottle of cucumber-melon scented spray. Alongside them sits a powder blue, leather bound pocket bible titled "New Testament: Psalms Proverbs."

Federal Pre-Emption Requires Objector To Furnish SS Number For Drivers License

In Lewis v. State of Idaho Department of Transportation, (ID Ct. App., Aug. 17, 2006), an Idaho appellate court rejected an appeal by Lawrence Lewis who was denied a drivers' license when he refused to furnish his social security number. Lewis believes his social security number "is either the precursor to, or actually is, the biblical 'mark of the beast'." Apparently realizing that a claim under the First Amendment would be difficult to maintain, Lewis instead relied on Idaho's Free Exercise of Religion Act that requires the state to show a compelling interest and use of the least restrictive means when free exercise is burdened even by a neutral law. The court, however, found that federal law, 42 U.S.C. § 666(a)(13)(A), requiring states to collect social security numbers of drivers license applicants, pre-empts the state's Free Exercise of Religion Act. The federal provision was enacted as part of Congress' attempt to facilitate interstate child support enforcement. Saturday's Salt Lake Tribune covers the decision.

Teens Urge Repeal Of Anti-Polygamy Laws

In Salt Lake City, Utah on Saturday, over a dozen children and young adults from polygamist families spoke at a rally. They urged Utah to change its ban on polygamy so they can practice their religion as they choose. The AP's report on the rally that drew about 250 supporters says speakers emphasized that they are well treated by their families, supported and encouraged to obtain an education.

Wiccan Prison Chaplain May Proceed With Establishment Clause Claim

In McCollum v. State of California, 2006 U.S. Dist. LEXIS 58026 (ND CA, Aug. 8, 2006), a Wiccan clergyman who is a volunteer chaplain in a California prison challenged California's policy that limits salaried prison chaplain positions to members of five faiths. Only Protestant, Catholic, Jewish, Muslim and Native American clergy can be hired. The court dismissed a number of plaintiff's claims, in some cases because they related to prisoners' free exercise of religion, not to his own. The court, however, permitted plaintiff to proceed on his Establishment Clause claim challenging the Five Faiths policy. It also permitted him to proceed on equal protection and First Amendment retaliation claims relating to various denials of access as a volunteer chaplain to Wiccan prisoners.

Religious Objections To Recitation Of India's National Song

Saturday's Daily India.com reports that a clash is brewing between the Indian government and Muslim clerics in the state of Uttar Pradesh over the singing of India’s national song, "Vande Mataram". India’s Human Resource Development Minister, Arjun Singh, has called on all schools in the country to recite the first two stanzas of the song on Sept. 7, to celebrate the 100th anniversary of the adoption of the song as India’s national anthem. Maulana Khalid Rasheed, who heads the Firangi Mahal and is a member of the All India Muslim Personal Law Board, announced that the recitation of the song by Muslim students is un-Islamic. He explained that "the song tends to equate the nation to god and Islam does not permit this. Even Prophet Mohammad cannot be placed on an equal pedestal with Allah, the almighty."

A Particularly Literate and Engaging Decision In Oklahoma 10 Commandments Case

On Friday in Green v. Board of County Commissioners of the County of Haskell, (ED OK, Aug. 18, 2006), an Oklahoma federal district court ruled that a Ten Commandments monument on the Haskell County (OK) courthouse lawn may remain. The monument also contains the text of the Mayflower Compact. The conclusion of the court-- that the circumstances surrounding the approval and erection of the monument do not demonstrate that the primary purpose or effect of the monument is religious—is hardly unusual. What is unusual is the literate and amusing opinion written by federal district Judge Ronald A. White. The opinion, whose subheadings are inspired by Dante’s Inferno, accomplishes the nearly impossible task of keeping the reader enthralled for 43 pages.

While the opinion has been covered extensively—a release by Alliance Defense Fund, a story in the Tulsa World, a report from the Associated Press (including a photo of the monument), and a posting on How Appealing blog—none of these capture the truly refreshing flavor of the opinion. Here are a some excerpts:

The Findings of Fact are labeled "Cantico I". In part A. captioned "Here Is Set Forth The Story Of The Monument’s Erection And The Subsequent Although Not Necessarily Consequent Events", Judge White explains at length the setting and background of the monument. Focusing on the identity of the defendants, he writes:

The Commissioners during the relevant time period in this case were Henry Few, Kenny Short, and Sam Cole. Mr. Cole unfortunately died after this lawsuit was filed and only seventeen days after his deposition was taken. There is no known connection.

Describing the monument, he says:

This phrasing has been described by all parties to this litigation as the "King James Version" ("KJV") of the Ten Commandments. That description is not grossly inaccurate, but is something of a stretch…. The Monument’s text could best be described as a butchered paraphrase of the KJV. The only real similarities between them are the numerical order of the Commandments and the prodigious use of the idiom "shalt".

"Cantica II" of the opinion—The Conclusions of Law—contain some subheadings ("Cantos") that are direct quotes from Dante. Thus the first subpart is labeled "Justice the founder of my fabric mov’d: To rear me was the task of power divine, Supremest wisdom, and primeval love." Early on, Judge White engages in an extensive discussion of the meaning of "purgatory" in Catholic doctrine, criticizing the 6th Circuit for remarking that the Supreme Court’s two 10 Commandment decisions left them "in Establishment Clause Purgatory".

Particularly interesting is Judge White’s discussion in "Canto C" labeled "Here Is Set Forth The Catechism of McCreary and Van Orden". Focusing on whether the Haskell County monument was part of an integrated historical display, he wrote:

Suffice it to say that the Haskell County courthouse lawn is pure Americana. True, there is no grand integral design of the various monuments and displays on the lawn. They were dreamed up, developed and deposited over the years, each reflecting that generation’s view of what is appropriately historical, artistic and pretty. Perhaps the next generation will add the cannon or a nice shrubbery. In any event, this court does not fathom how artistic integration must be a bedrock constitutional requirement simply because a text of one of the displays contains religious sentiments.

Only a full reading does justice to the opinion.

Circumcision Opponents Being Undercut By Science

Saturday’s Washington Post carries an article about groups that are attempting to make male circumcision, along with female circumcision, illegal. Arguments by the groups are being undercut by the finding that circumcised men were less than half as likely as uncircumcised men to get HIV, and that female to male transmission is cut by 60% by male circumcision. Nevertheless, the group MGMBill.org is attempting to find members of Congress who will introduce the proposed legislation that they have drafted. Their proposal explicitly provides that in applying its prohibitions, "no account shall be taken of the effect on the person on whom the operation is to be performed of any belief on the part of that or any other person that the operation is required as a matter of custom or ritual."

Decalogue Builders Pay More Attention To Precedent Now

The Associated Press today reports that two new 10 Commandment monuments are being erected in southeastern Oklahoma, but with more careful attention to legal guidelines that the courts have set out. At the Atoka County Court House, the monument has several other displays near it such as a war and veterans memorial. At the dedication of the new monument, supporters were careful to talk about a celebration of America and not make it a religious service. In Coalgate, Oklahoma, a new monument is being put up on private property next to the court house lawn. The site will display the Oklahoma, American and Christian flags along with the King James version of the commandments.

Court Orders Mobile Home Park To Allow Religious Use of Clubhouse

Yesterday a San Diego, California trial court ordered Warner Springs Homeowners Association to allow residents at the mobile home park to use the park's common areas for Bible and prayer meetings, according to a release by the United States Justice Foundation. The court rejected the claim of the Homeowners' Association that it had a right to be free of religion in the community clubhouse. The residents' suit had claimed violations of the U.S. and California constitutions and of California's Unruh Civil Rights Act. (See prior posting.) [Thanks to Alliance Alert for the lead.]

West Virginia School's Jesus Portrait Stolen-- Is Case Moot?

The AP yesterday reported on an unexpected twist in the case challenging the constitutionality of a portrait of Jesus hanging in Bridgeport, West Virginia High School. (See prior posting.) Around 4:00 am Thursday morning, an intruder broke into the school and stole the controversial painting. Three security cameras caught the thief in action, but the person's face was obscured. U.S. District Judge Irene M. Keeley has set Feb. 27, 2007 as a trial date in the constitutional challenge. An interesting question is whether, assuming the stolen painting is not found, the case is now moot.

UPDATE: On Saturday, the Times West Virginian reported that the Harrison County School Board accepted Alliance Defense Fund's offer to defend the display of the Jesus portrait. ADF, as well as 7 other law firms, had offered free representation. The $150,000 raised for the Board for defense costs will be held in case the Board loses and is required to pay costs and punitive damages. Also lawyers for both sides say the suit will go ahead even though the portrait has been stolen. The Board has rejected the offer of a replacement portrait for the one stolen, pending the outcome of litigation.

Recent Prisoner Free Exercise Cases

In Dawson v. Schwarzenegger, 2006 U.S. Dist. LEXIS 56226 (ED CA, Aug. 11, 2006), a California federal Magistrate Judge held that a group of challenges under RLUIPA to the California prison system's grooming rules by Native American inmates are moot because the rules have been amended to permit the wearing of hair by prisoners in any style so long as it does "not extend over the eyebrows, cover the inmate's face or pose a health and safety risk".

In Raiford v. Wallens Ridge State Prison, 2006 U.S. Dist. LEXIS 56271 (WD VA, Aug. 11, 2006), a Virginia federal district court rejected an inmate's claim that his free exercise rights were violated when he did not receive appropriate meals for Passover and when he was denied the Common Fare Diet. Inmate Thomas Raiford failed to offer evidence of his religious beliefs requiring him to receive such meals.

In Watts v. Director of Corrections, 2006 U.S. Dist. LEXIS 56193 (ED CA, Aug. 10, 2006), a California federal Magistrate Judge, ruling on summary judgment motions, recommended that Rastafarian prisoner's RLUIPA and equal protection claims in connection with California hair length grooming standards for prisoners go to trial. In its motion the state failed to show that its grooming standards were the least restrictive means of furthering the its interest. The equal protection claim focused on the fact that the state's policy was applicable only to male prisoners. However because the state has subsequently changed its grooming standards, the only relief that can be available is expungement of plaintiff's disciplinary reports.

In Smith v. Beauclair, 2006 U.S. Dist. LEXIS 56561 (D ID, Aug. 11, 2006), an Idaho federal district court denied state prison officials' motions for summary judgment on some of the RLUIPA claims of by an inmate who had requested accommodation of various of his individualized versions of Cherokee religious practices. Plaintiff was permitted to move ahead on his request for accommodation for use of a Sacred Fire, exceptions to the grooming standards, and use of medicinal herbs, but not on his claims for tobacco smoking, daily smudging of his cell and a special diet. The court granted qualified immunity to individual defendants on damage claims against them, but warned that "this ruling should not be construed as a license to ignore future religious accommodation requests from inmates with individualized religious beliefs."

In Price v. Scott, 2006 U.S. Dist. LEXIS 57263 (ND IN, Aug. 14, 2006), an Indiana federal district court ruled against an inmate who alleged that correctional authorities prevented him from practicing his Native American religion in violation of the First Amendment, RLUIPA and the American Indian Religious Freedom Act. The court held that prison officials fully satisfied their obligation to accommodate the plaintiff's religious beliefs when they offered him a transfer to a different prison that had an active Traditional Native American religious group.

German Authorities Say Madonna Concert Might Violate Ban On Insulting Religion

Pop star Madonna will be under scrutiny by German prosecutors Sunday as she performs on tour in Dusseldorf. In her performance, as part of an appeal to her audience to donate to AIDS charities, Madonna, wearing what appears to be a crown of thorns, sings from a mirrored Cross. People Magazine yesterday reported that authorities will be looking to see if the performance violates the ban against insulting religious beliefs in a manner that might disturb the peace.. Authorities do not plan to send observers to the concert, but instead will rely on media reports. The performance may be protected by German laws protecting artistic freedom. Madonna says: "I don't think Jesus would be mad at me and the message I'm trying to send."

UPDATE: It was reported on Aug. 22 that prosecutors have decided against opening an invetigation of Madonna's concert performance. (Myrtle Beach Sun-News.)

Boise, Idaho 10 Commandments Initiative Can Proceed

On Monday the Idaho Supreme Court ruled 4-1 that a challenged ballot initiative can proceed. The initiative asks Boise residents whether a Ten Commandments monument, donated in 1965 by the Fraternal Order of Eagles, should be placed back in a city park. The monument was moved to the grounds of a cathedral in 2004. The case, In re Initiative Petititon for A Ten Commandments Display, (ID Sup. Ct., Aug. 14, 2006), held that the challenge to the initiative was not ripe for adjudication. At issue was whether the initiative called for action that was merely administrative in nature, in which case it is not a proper subject for a voter initiative. The court said that it would not rule on that issue now, because the initiative might never pass, or if it did, City Council might exercise its authority to amend or reject it. Justice Trout dissenting thought that the case was ripe, and that the proposal was administrative so that the city is not required to hold an initiative election on it. Tuesday's Seattle Times covered the decision. [Thanks to Blog from the Capital for the lead.]

House Homeland Security Chairman Endorses Religious Profiling

Today's Newsday reports that Rep. Peter King, (R-NY), chairman of the U.S. House of Representatives Homeland Security Committee, has endorsed religious and ethnic profiling. He would require persons of "Middle Eastern and South Asian" descent to undergo additional security checks, saying "if the threat is coming from a particular group, I can understand why it would make sense to single them out for further questioning." King has said that while not all Muslims are terrorists, all recent terrorists have been Muslim. Legal and law enforcement officials, however, have rejected racial and religious profiling both on constitutional grounds and on grounds of effectiveness.

Jewish Groups Split Over Taking Federal Homeland Security Funds

The current issue of New York's Jewish Week reports that Jewish groups-- usually strong supporters of separation of church and state-- are divided over whether to accept federal funds to increase security at local synagogues. United Jewish Communities and a number of other Jewish groups are urging the Department of Homeland Security to release $25 million that has been appropriated to help non-profits increase their security, and are seeking additional appropriations from Congress for next year. However Mark Pelavin, associate director of the Religious Action Center of Reform Judaism, disagrees. He says: "If our security needs are pressing enough that we are lining up at the public trough, then they should be pressing enough that our own community will make meeting those needs a priority.... It is not healthy for our community to come to depend on the government to take care of our communal needs."