25th Anniversary of Canada's Charter of Rights and Freedoms Marked

Today is the 25th anniversary of Canada's adoption of its Charter of Rights and Freedoms that protects many individual rights, including freedom of conscience religion. Marking the anniversary, former prime minister Jean Chretien spoke last night at the University of Ottawa, according to a report by CanWest News Service. Chretien was justice minister in the Trudeau cabinet when the Charter was adopted. While Canada had earlier adopted a Bill of Rights, it was the Charter that gave courts the power to strike down legislation that violated protected rights.

President Attends Catholic Prayer Breakfast; Supports School Vouchers

On Friday, President Bush spoke at the annual National Catholic Prayer Breakfast held in Washington. (Full text). He talked about Charles Carroll, the only Catholic to sign the Declaration of Independence, saying: "In 1776, Carroll was one of the wealthiest men in America. But because he was a Catholic, he could not vote or hold public office in his native Maryland." Bush's remarks urged continued respect for a "culture of life"; support of faith-based institutions; support for school choice; and support for comprehensive immigration reform.

Friday afternoon, President Bush further promoted school choice by meeting at the White House with leaders of parochial schools and parents whose children attend Catholic schools. In his remarks after the meeting, he urged expansion to the rest of the nation of the D.C. Opportunity Scholarship program, as well as reauthorization of the No Child Left Behind Act.

Court Analyzes Elements of RLUIPA vs. Free Exercise Claim

A recent decision by Wisconsin federal district judge Barbara Crabb contained an interesting discussion of an issue that presents itself in many religious rights cases brought by prisoners-- the difference between the elements of a free exercise claim and a claim under the Religious Land Use and Institutionalized Persons Act. The case is Perez v. Frank, (WD WI, April 11, 2007), granting a Muslim prisoner summary judgment on claims that various correctional officials violated his rights when they prevented him from attending learning sessions, Friday prayer and group prayer during festivals; prevented him from eating dates during Ramadan and having Halal foods during festivals; and deprived him of a digital Qur'an player. Summary judgment was denied on various other claims. Here is Judge Crabb's analysis:

Although both the free exercise clause and RLUIPA protect religious "exercise," each defines religious exercise in a slightly different way. Under RLUIPA, a "religious exercise" is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."... In other words, RLUIPA protects individual acts of piety, regardless of their centrality. By contrast, the free exercise clause is concerned with the macrocosm of belief: so long as a believer's ability to freely practice his faith (rather than engage in all possible expressions of his faith) is not substantially burdened, the free exercise clause is not violated (hence the requirement that a belief be "central" before it can fall within the ambit of the free exercise clause....

Despite the technical differences between the types of religious exercise protected by each law, courts frequently fail to differentiate between the central practices protected by the free exercise clause and the wider variety of practices protected by statutes such as RLUIPA. The reason for this is fairly apparent. Courts are poorly positioned to decide which religious practices are "central" to any given faith tradition or any given believer; therefore, increasingly free exercise jurisprudence has emphasized deference to individuals' professed beliefs, so long as there is no reason to doubt their sincerity.....

So what, then, is the practical difference between a free exercise claim and a claim arising under RLUIPA? It appears that the answer is "not much," at least insofar as the "substantial burden" requirement is concerned.

(See prior related posting.)

Recent Publications On Law & Religion, Church-State

From SSRN:
David H. Schraub, When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles, (Dartmouth Law Journal, Vol. 5, Spring 2007).

Robert Fisher McCarthy, The Incompatibility of Free Speech and Funerals: Proposing a Grayned-Based Justification for Funeral Protest Statutes, (Ohio State Law Journal, Vol. 69, Forthcoming).

From SmartCILP:
Judith D. Fischer & Chloe J. Wallace, God and Caesar in the Twenty-First Century: What Recent Cases Say About Church-State Relations in England and the United States, 18 Florida Journal of International Law 485-515 (2006).

Symposium: Islamic Business and Commercial Law. Articles by Theodore Karasik, Frederic Wehrey, Steven Strom, Shaykh Yusuf Talal DeLorenzo, Ayman H. Abdel-Khaleq, Christopher F. Richardson, Michael J.T. McMillen, Umar F. Moghul, Rushdi Siddiqui, Nazih Hammad, Andreas Junius, Kilian Balz, Robert R. Bianchi, Walid S. Hegazy and Haider Ala Hamoudi. 7 Chicago Journal of International Law 379-622 (2007).

Symposium: Can God and Caesar Coexist? Balancing Religious Freedom and International Law by Robert F. Drinan, S.J., 45 Journal of Catholic Legal Studies 1-114 (2006).

Patrick McKinley Brennan, Harmonizing Plural Societies: The Case of Lasallians, Families, Schools--and the Poor, 45 Journal of Catholic Legal Studies 131-175 (2006).

Thomas J. Paprocki, Presumption As a Matter of Law and Eternal Salvation, 45 Journal of Catholic Legal Studies 177-182 (2006).

Recent Book:
James Serritella, Thomas Berg, Cole Durham, Edward Gaffney, Craig Mousin, eds., Religious Organizations in the United States: A Study of Identity, Liberty and Law, (Carolina Academic Press, 2006).

Broadway Revival Again Focuses Attention on Evolution

The debate over teaching of evolution in American schools is now the focus of Broadway as a revival of "Inherit the Wind" opened last Thursday. The play, a fictional re-enactment of the 1925 Scopes "monkey" trial, was first produced in 1955. It was written as a response to McCarthyism. Reuters says that reviews of the revival were generally positive.

Recently Available Prisoner Free Exercise Decisions

In Buckley v. Alameida, 2007 U.S. Dist. LEXIS 26864 (ED CA, April 11, 2007), a California federal district court screened a number of claims by a Black Orthodox Jewish prisoner. The court determined that plaintiff could move ahead with claims against certain of the defendants for their confiscation of his kosher food package; for severe retaliation because of an argument growing out of confiscation of the package; and for disappearance of his menorahs and candles. He was not permitted to move ahead with other claims, including one growing out of threats and anti-Semitic slurs.

In Mayweathers v. Hickman, 2006 U.S. Dist. LEXIS 95882 (SD CA, Dec. 26, 2006), a California federal Magistrate Judge held that a prisoner's allegation that he was denied his religious diet tray for one week did not allege a substantial burden on his free exercise of religion under RLUIPA.

In Williams v. Dankert, 2007 U.S. Dist. LEXIS 26975 (ED WI, April 11, 2007), a Wisconsin federal Magistrate Judge rejected a prisoner's RLUIPA claim. Plaintiff alleged only that deprivation of his religious material denied him access to the courts. Thus there was no support for the claim that this was done to prevent him from exercising his religion.

In Ruiz v. Early, 2007 U.S. Dist. LEXIS 27206 (ED CA, March 28, 2007), a California federal Magistrate Judge found that plaintiff prisoner's general complaints about prison grooming standards did not support a cognizable free exercise claim.

In Moynihan v. Arpaio, 2007 U.S. Dist. LEXIS 27331 (D AZ, April 11, 2007), an Arizona federal district court dismissed an inmate's claim for failure to exhaust his administrative remedies. One of the claims was that his free exercise rights were vioalted when officials refused to provide him a vegetarian diet.

In Harrison v. Laffin, 2007 U.S. Dist. LEXIS 27399 (ED LA, March 22, 2007), a Louisiana federal Magistrate Judge recommended dismissal of a prisoner's claim that his free exercise rights were violated when he was unable to attend church because he was in 23-hour lockdown.

Washington State Mandates Pharmacies Fill All Prescriptions

The Washington state Board of Pharmacy on Thursday voted unanimously to adopt a rule requiring drug stores to fill all lawful prescriptions. The AP says the rule means that pharmacists with moral, religious or other personal objections to filling a prescription can opt out only if a co-worker can fill the prescription at the time it is presented. Pharmacists are also prohibited from destroying prescriptions or harassing patients, and must order new supplies of a drug if it is out of stock. The Washington State Catholic Conference, among others, opposes the new rule. It may require pharmacists to violate their conscience in dispensing drugs such as the Plan B "morning after" birth control pills. (See prior related posting.)

British Teachers Oppose Expansion Of Faith Schools

In Britain, NASUWT, the largest union representing teachers and head teachers in the UK, adopted a resolution at its recent convention opposing government plans to create a new generation of faith schools funded by the government. The resolution warns of "social fragmentation" that might result from more faith schools. One delegate, Brian Williams from Cardiff, said that parents often pretend to be religious merely to get their children into good Church of England or Roman Catholic schools. This Is London, reporting on NASUWT's annual conference, says that delegates stopped short of calling for the closing of existing faith schools.

IL Proposal On Limitations In Abuse Cases Opposed by Catholic Conference

A column in Saturday’s Peoria (IL) Journal Star discusses Illinois SB 1733, a bill introduced in February in the Illinois legislature to create a one-time two-year window in which childhood sexual abuse cases could be filed even though pre-existing statutes of limitation have run. At March hearings on the bill [bill status], the only organization to testify against it was the Catholic Conference of Illinois. CCI executive director, Robert Gilligan said that the bill gives false hope to victims because the Illinois constitution bans the revival of retroactive claims.

Report Issued On Blasphemy Cases In Pakistan

Pakistan's Daily Times says that the National Commission for Justice and Peace—a group formed by Pakistan's Catholic Bishops’ Conference-- has issued a report on blasphemy prosecutions in Pakistan. It found that 90 blasphemy cases were recorded in 2006, of which only 48 were registered with the police. Of those, 27 of the accused were Muslims, 10 were Christians and 11 were Ahmadis. Only 5 cases have been decided by the courts in 2006—with three resulting in life sentences. NCJP executive secretary Peter Jacob said that the blasphemy law is being exploited by some to create tensions in society.

School Baord Candidate Says Husband's Suit Will Be Dropped If She Wins

Four years ago, Marion Illinois parent Robert Marsh sued school superintendent Wade Hudgens and the Marion school board for allowing the schools to endorse religion. The suit claimed that Superintendent Hudgens organized school assemblies featuring the evangelical pastor of Ronnie Hill Ministries in Fort Worth, Texas. The lawsuit claims that the assemblies were going to be used to hand out tickets to evening pizza parties at a church, during which students would have to listen to a sermon by Pastor Hill. The school board has spent $167,000 so far defending the lawsuit. The case was dismissed earlier this year for lack of evidence, but Mash has filed a motion for reconsideration. Now Marsh’s wife is running for school board in next Tuesday’s election. Jan Bowman-Marsh says that if she wins, her husband will drop his lawsuit. These developments were reported by The Southern yesterday.

Uzbekistan Blocks Russian Religious News Website

Forum 18 last week reported that in Uzbekistan, the National Security Service—the country’s secret police—have blocked access in the country to one of Russia’s leading religious websites. While Uzbekistan has blocked many foreign-based website that carry independent news of developments in Uzbekistan, its blocking of the Portal Credo site seems to be the first time it has banned a site devoted to religious news. The blocked website posts almost entirely Russian language items.

Turkish Demonstrators Fear Inroads On Secular State

In Ankara, Turkey on Saturday, a crowd estimated variously at 200,000 to 300,000 marched to protest the potential loss of secularism in Turkey if the ruling AK Party chooses Prime Minister Tayyip Erdogan as its presidential candidate. Because of Erdogan’s Islamist roots, a group of secular generals, judges and university rectors fears he would undermine the strict secular nature of the country. They have similar fears about the potential candidacy of parliament’s speaker, Bulent Arinc. Erdogan denies he has an Islamist agenda. While the post of President in Turkey is largely ceremonial, under current President Ahmet Necdet Sezer the office has strongly defended the secular tradition of the overwhelmingly Muslim country. Developments are reported by Reuters and the Associated Press.

Texas City Council Urges School Prayer

In Brazoria, Texas, city council last Tuesday passed a resolution calling for prayer to be a part of public schools and urging other Texas cities to pass similar resolutions. Today’s Houston Chronicle quotes Brazoria mayor Ken Corley as saying: "My goal is to just bring God back into the lives of these kids through our school system." Houston attorney and ACLU member, Randall Kallinen, said that there is nothing wrong with the resolution so long as it is merely a non-binding expression of Council's opinion.

Mojave Desert Cross Case Argued Before 9th Circuit

Last Monday, the U.S. Ninth Circuit Court of Appeals heard oral arguments in Buono v. Kempthorne, a case involving the constitutionality of a transfer of federal lands to private parties in order to preserve the Mojave Desert Cross war memorial. The cross was originally put up by the Veterans of Foreign Wars. When it was challenged in litigation, the federal government took steps to transfer the public land on which the cross sits to private ownership. An audio recording of oral argument in the case is available online. The oral arguments are covered by stories in the Gospel Herald and One News Now.

Church Sues Florida Town Under RLUIPA

In Southwest Ranches, Florida, Christ Covenant Church has filed a lawsuit alleging that the town violated its religious freedom rights and the Religious Land Use and Institutionalized Persons Act when it denied the church a zoning permit. Today’s South Florida Sun-Sentinel reports that the dispute involves the church's plans to build a 2000 sq. ft. hall next to its existing sanctuary. The hall would be used for bible study, weddings, funerals and meetings. Council said it rejected the application because the site had insufficient parking.

U Wisconsin-Superior Settles Suit Brought By Christian Student Group

Last week, a Wisconsin federal district judge approved a settlement by the University of Wisconsin- Superior of a suit brought against it by the Inter-Varsity Christian Fellowship. The University had attempted to apply its non-discrimination rules to deny formal recognition to the group which required its officers to sign a statement affirming their Christian beliefs. IVCF claimed the refusal violated its First Amendment rights. In the settlement agreement, the University agrees to recognize IVCF as a student organization, give it some $1500 in student fees for its activities for the year, and to pay $20,000 in legal fees to the Alliance Defense Fund that represented IVCF in the lawsuit. Today’s Winona Daily News, reporting on the settlement, says that the University’s student government agreed several months ago to recognize IVCF. ADF also reports on the settlement.

Portland Archdiocese Reorganization Plan Nears Confirmation

In an opinion issued Friday in the bankruptcy proceedings of the Portland, Oregon, Catholic Archdiocese, federal bankruptcy judge Elizabeth Perris indicated that she would confirm the Archdiocese's proposed plan of reorganization if one change is made in it. An exculpation clause in the plan must be narrowed to exclude potential liability of the Archdiocese for failing to disclose certain confidential settlement information as required by a prior court order. As summarized by an Associated Press report, under the plan some 175 victims of priest sexual abuse will settle their claims for $52 million. Another $20 million will be set aside for those who come forward after an agreed deadline. Finally, up to $3.8 million has been set aside to pay for claims that have not been settled in the bankruptcy negotiations. The court rejected an argument that this last amount is too small. (See prior related posting.)

Vatican Envoy Shuns Yom Hashoah Service In Israel Over Pius XII Depiction

The Vatican’s ambassador to Israel is refusing to attend Israel's official Holocaust memorial service tomorrow in Jerusalem in protest of the way in which Israel's Holocaust Museum describes the role of Pope Pius XII during World War II. Monsignor Antonio Franco is refusing to attend the annual Yom Hashoah commemoration at the museum, Yad Vashem, because of a paragraph—added in 2005-- accompanying a display of a picture of Pius XII. The caption says of Pius: "When he was elected pope in 1939, he shelved a letter against racism and anti-semitism that his predecessor had prepared. Even when reports about the murder of Jews reached the Vatican the Pope did not protest either verbally or in writing." It also says that the Pope in 1942 chose not to sign an Allied declaration condemning the extermination of Jews and did not intervene when Jews were deported from Rome to Auschwitz. The Guardian today reports that Yad Vashem said its description accurately reflects current historical knowledge. The museum said it is "prepared to continue examining the issue", and that the Vatican should open up its archives of documents relating to Pius XII.

Religious Voters and the 2008 Presidential Candidates

Religious voters are obviously seen as an important constituency for 2008 Presidential contenders. Associated Baptist Press on Friday carried a long summary of the religious background of each of the Republican and Democratic hopefuls. It also covers each candidate’s relations with the religious right, and his or her position on major issues of interest to religious voters. The issues included are abortion, gay rights, Iraq and church-state relations.

Meanwhile, on Friday the McClatchy Newspapers carried an article on religious conservatives "shopping around" for a Republican candidate to back in the Presidential race. Rudolph Giuliani speaks on Tuesday at Pat Robertson’s Regent University, but White evangelical Christians are looking for an alternative. A number of conservatives oppose Giuliani because of his support for abortion rights, gun control, and civil unions between same-sex couples.