New Religion Clause Scholarship

From SmartCILP:
Francis J. Beckwith, Gimme That Ol' Time Separation: A Review Essay (Reviewing Philip Hamburger, Separation of Church and State.) 8 Chapman Law Rev. 309-327 (2005).

G. Sidney Buchanan, Evolution, Creation-Science, and the Meaning of Primary Religious Puropose, 58 SMU Law Rev. 303-317 (2005).

Posted online:
Robert K. Vischer, Conscience in Context: Pharmacist Rights and the Eroding Moral Marketplace, forthcoming in Stanford Law & Policy Review. (Abstract)

Muslim Firefighter Loses Bid To Keep Beard On Job

Yesterday, a common pleas court judge in Philadelphia ruled against a Muslim firefighter, agreeing with the city that the firefighter cannot wear a beard on the job. The Associated Press reported yesterday that the court found the city's concern about safety problems with the seal on respiratory masks posed by beards was a compelling interest that justified an exception to the protections granted by Pennsylvania's Religious Freedom Protection Act. "Directive 13 (the facial-hair ban) ... is the least restrictive means of furthering its compelling interest in maximizing safety for its members," Common Pleas Judge James Murray Lynn wrote in his order. The court had granted a preliminary injunction to the firefighter pending this decision. (See prior posting.)

RI Supreme Court Rejects Opening Birth Records Based On Mormon Beliefs

On Sept. 19, in In re Philip S., the Rhode Island Supreme Court ruled against an adoptee, now an adult, who claimed that his Mormon religious beliefs should permit him to discover the identity of his birth mother. He claimed that he had a religious duty to trace his ancestry. Additional details of the case, in which the court placed a high value on confidentiality of adoption proceedings, are reported in today's Providence Journal. The Court avoided ultimately deciding a difficult constitutional issue by holding that the petitioner presented the Family Court with no meaningful evidence to support his claim of good cause to open his records other than his own subjective assertions about what he considered to be the requirements of his religion. In a footnote, however, the Court said: "While we make no definitive holding at this time, it is our tentative view that, unless a petitioner’s religious beliefs can be “translated” into a more secular context (such as being a constituent element of a particular petitioner’s psychological need), we do not see how deferring to such a belief would be anything other than a preferential treatment by government based upon religion."

Ballot Measure On Cross In City Seal

In Redlands, California this fall, voters will be called on to cast their ballot on Measure Q, a voter initiative that would amend the municipal code to make official the the city seal used since 1963 that includes in it a cross. The Redlands Daily Facts yesterday reported on the likely challenge that will be raised by the ACLU if the initiative is passed. The Save Redlands' Seal Committee says that the symbol represents the legacy of religion in Redlands, which has sometimes been called the "city of churches." An opposing group, the Redlands Values Coalition, says that using a cross in the logo is intolerant of other faiths, unconstitutional, and fiscally irresponsible because the city would be liable for the ACLU's court costs if it loses in litigation.

ACLU Encourages States To Refuse Abstinence Grants

Today's Washington Times reports that the ACLU is targeting 18 states to encourage them to reject federal funds for "abstinence only" sex education programs in public schools. Among the ACLU's reasons for opposing the programs is their claim that the programs promote religion. Maine announced this week that it will join California and Pennsylvania in rejecting grant money available under Title V of the Social Security Act (42 USC Sec. 710). The Bush administration has proposed increasing the funding for abstinence programs in next year's budget to $206 million.

CA Medical Association Withdraws Original Brief Supporting Doctors' Religious Objections

Oral arguments are scheduled October 11 in a San Diego, California state court of appeals in the case of two doctors who refused because of their religious beliefs to provide artificial insemination to a lesbian. The Associated Press reported yesterday that the California Medical Association which originally filed a brief backing the doctors has now withdrawn its controversial brief, and will file another brief in its place. The Medial Association's Chief Executive, Jack Lewin, said, "it is clear that CMA's policy commitment to oppose any form of invidious discrimination had been so significantly confused and misrepresented, that it was in the best interest of CMA to withdraw the brief." The CMA's new brief says that legal and ethical standards prohibit physicians from discriminating on the basis of sexual orientation, gender identity or marital status, but they can refuse to perform certain procedures on religious grounds if they refuse such treatment for all patients.

Court Will Decide Pastor's Claims Against His Former Church

In Duncan v. Peterson, decided Sept. 8, 2005, the Illinois Court of Appeals permitted a pastor to sue his former church that revoked his ordination. Richard Duncan, and Hope Church of which he was pastor, sued Moody Church, its pastor and chairman of its board of elders. They alleged that defendants invaded Duncan's privacy by sending false and misleading letters revoking Duncan's ordination as a minister. They also alleged conspiracy to damage Duncan's reputation. Duncan, who had been ordained by Moody Church, was charged by defendants with financial and personal wrongdoing. The trial court had dismissed the claims based on the doctrine of ecclesiastical abstention. The court of appeals reversed that holding in part, finding that Duncan's claims can be decided without extensive inquiry into religious law and policy.

ACLU Urges Anti-Discrimination Provisions In Head-Start

The House of Representatives is expected to debate today the School Readiness Act of 2005 (H.R. 2123), which would reauthorize the Head Start program. It is expected that some members of Congress will attempt to amend the bill to allow religious organizations that are Head Start providers to hire teachers based on their religious beliefs. (See prior posting.) The ACLU yesterday urged the House of Representatives to oppose any amendments that would repeal current anti-discrimination provisions in the law. In its letter to members of Congress, the ACLU argues that the statute would be unconstitutional if amended to exempt religious organizations from anti-discrimination provisions.

UPDATE: The AP reports that Thursday afternoon, the House, by a vote of 220-196, approved an amendment offered by Rep. John Boehner to provide hiring protections for faith-based Head Start providers. The ADL immediately issued a release criticizing the amendment. It said: "Federally funded religious discrimination is always wrong, and to permit such discrimination in Head Start, an historic anti-poverty program universally acclaimed and present in so many communities across the country, is misguided and dangerous."

Sikhs In French Court Challenging Turban Ban In Schools

The application to Sikhs of France's law banning the wearing of "conspicuous religious symbols" in public schools is now before France's highest court, the Conseil d'Etat. (See prior postings 1, 2). Today's Hindustan Times reports that counsel is arguing that the Sikh turban is not a "conspicuous" religious symbol, but a part of religious practice. If this argument does not succeed, the petitioners plan to go to the European Court of Justice.

Court Upholds License Photo Requirement

In Valov v. Department of Motor Vehicles, (Sept. 20, 2005), a California appellate court rejected free exercise claims under the U.S. and California constitutions raised to the requirement that a driver's license contain a photo of the licensee. Jack Peter Valov is an orthodox member of the Molokan religious faith. He believes that the Biblical prohibition against "graven images" prohibits the photographing of his image.

The Court rejected Valov's First Amendment claim because the photograph requirement is a neutral, generally applicable requirement that is rationally related to achieving the legitimate governmental interests of promoting highway safety, discouraging fraud, and deterring identity theft. In doing so, the Vehicle Code only incidentally burdening Valov's religious beliefs and practices. The Court rejected a free exercise claim under the California Constitution because the photograph requirement was narrowly drawn to achieve compelling and legitimate state purposes.

Student Seeks Right To Read Bible With Friends During Recess

On Monday, the Alliance Defense Fund asked a federal court in Knoxville, Tennessee to issue a preliminary injunction so that 10-year-old student, Luke Whitson, can read and discuss the Bible with his friends during school recess. In its Memorandum supporting its motion (full text), ADF argues that the school is wrong in treating recess as school instructional time for First Amendment purposes. The motion claims that the school is violating the student's First Amendment speech and religion rights and the due process and equal protection clauses of the 14th Amendment, and that permitting the activity during recess does not violate the Establishment Clause.

Catholic Church vs. PSOE Government In Spain

An article posted on Wednesday on the World Socialist Web Site says that the Catholic Church in Spain is using its network of family organizations, Concapa, in a campaign to oust the Spanish Socialist Workers Party (PSOE) government and return the right-wing Popular Party to power. The Church particularly objects to PSOE's policies on education under which Catholic families will retain the right to choose a religious education for their children, but it will be optional. The Church is also opposed to a proposal to allow Islamic clerics to teach religion in schools. Before the Popular Party was defeated in March 2004, it had proposed the Organic Law of Educational Quality (LOCE). LOCE would have reintroduced compulsory religious education for primary and secondary pupils.

ACLU and ADF On Same Side In School Free Exercise Case

The ACLU of New Jersey finds itself, for a change, on the same side of a case as the Alliance Defense Fund. The case (see prior posting) involves the refusal by a Frenchtown, NJ elementary school to allow an eight-year old girl to sing "Awesome God" in an after-school talent show. The New Jersey Express-Times reports that on Monday the ACLU filed a motion to join the case as amicus on behalf of the student, Olivia Turton. ACLU attorney Jennifer Klear said: "Because the school left the choice of songs up to each individual student, no reasonable observer would have believed that the school affirmatively endorsed the content of each student's selection. Therefore it would not constitute a violation of the separation of church and state. Rather, it's an issue of religious freedom." (See ACLU release.)

Romanian Conference On Religious Liberty

The Adventist News Network yesterday reported on a seminar held earlier this month in Romania on "Religious Liberty in the Romanian and European Context." The conference was organized by organized by the Ministry of Culture and Religious Affairs, State Secretariat for Religious Affairs and the National Association for the Defense of Religious Liberty. A new law on religious freedom (full text) is being considered by the Romanian Parliament. At the Conference, Brigham Young University law professor Dr. W. Cole Durham Jr., said that the proposed law promotes religious liberty, but could be improved in its current "multi-tiered" system of religious organizations that gives some groups more prominence than others.

Iraqi Catholic Bishops Want Change In Constitution

At the last minute, the Iraqi Catholic Bishops' Conference is seeking changes in Iraq's draft Constitution. The Catholic News Service reports today that Chaldean Patriarch Emmanuel-Karim Delly met Iraqi interim President Jalal Talabani and Prime Minister Ibrahim Jaafari Sept. 18 to ask them to remove from the draft the clause providing that laws cannot contradict the undisputed rules of Islam. The Iraqi Bishop's Conference issued a public statement the next day, expressing concern about provisions in the draft Constitution that might lead to discrimination against Christians.

"See You At The Pole" Is Tomorrow, But Is Already In Court

Tomorrow at public schools around the country, students will participate in the annual "See You At the Pole" event. SYATP involves students' gathering at their school flagpoles before classes begin to pray for their leaders, schools, and families. According to the press release for this year's event, over 2 million teenagers participated in last year's programs. This year's theme is "PRAY: call 2 me".

Meanwhile, in Denver, Colorado, a federal judge refused to order a Pueblo, Colorado high school principal to show a video announcing the SYATP rally at his school. According to today's Pueblo Chieftan, a student group called the Fellowship of Christian Bulldogs asked for the 73-second video to be shown during normal school announcements over closed-circuit television. The principal refused because the video called for students to "pray for your school, family, nation and world." The principal, Miguel Elias insisted that references in the video to "prayer" be changed to "event", in order to avoid the school promoting prayer. The student leader of SYATP refused, saying that students who would show up an hour before school for the rally might be offended, not knowing the event was about prayer. However, U.S. District Judge Lewis Babcock agreed that the principal's position was reasonable. He urged both parties to begin negotiations on how to announce next year's rally.

Justice Department Urges Diplomatic Immunity For Pope

In a pending case in U.S. District Court for the Southern District of Texas, the United States Department of Justice has filed a "suggestion of immunity", arguing that Pope Benedict XVI enjoys diplomatic immunity as head of state of the Vatican. According to today's Syndey Morning Herald, the filing says that allowing the lawsuit to proceed would be "incompatible with the United States' foreign policy interests". The former Cardinal Joseph Ratzinger was named as a defendant in a civil lawsuit by three boys who allege that a seminarian molested them during counseling sessions in the mid-1990s. The lawyer for the boys says that if the court grants diplomatic immunity, he will challenge the constitutionality of giving diplomatic recognition to the Holy See, claiming that it violates the Establishment Clause. (See prior posting.)

The Noah Alliance

On Wednesday, a coalition of Jews and evangelical Christians will announce a coalition to support the Endangered Species Act. A release published yesterday by the Religious News Service reports that the Academy of Evangelical Scientists and Ethicists along with the Coalition on the Environment and Jewish Life have formed the Noah Alliance. The House Committee on Resources is considering major changes in the Endangered Species Act.

Some Charges Against Macedonian Archbishop Upheld

Last week, Macedonia's Supreme Court acquitted the head of the Serbian Orthodox Church in the country of two charges, but affirmed his conviction on two others, upholding the 18-month jail sentence he is serving. According to Forum 18 today, Archbishop Jovan (Vranisskovski) of Ohrid. The Archbishop was acquitted of charges of holding a religious service in his father's apartment and being present at the consecration of two bishops in Serbia in 2003. But his conviction for inciting national and religious hatred by becoming exarch of the Ohrid Archbishopric, and for having church calendars were affirmed. The calendars were booklets containing holy dates, prayers and saints' pictures. After prior acquittals, he now faces a new trial on charges of embezzlement, which he alleges was merely depositing foreign funds under his name because the Church was not allowed to hold foreign currency.

Law and Religion Scholarship Recently Published

New law review articles of interest from this week's SmartCILP:
Tawia Ansah, A Terrible Purity: International Law, Morality, Religion, Exclusion, 38 Cornell Int'l. Law Jour. 9-70 (2005).

Justus Reid Weiner, Palestinian Christians: Equal Citizens or Oppressed Minority In a Future Palestinian State, 7 Oregon Review of Int'l. Law 26-222 (2005).

Also just out is Vol. 3, No. 1 of the UCLA Journal of Islamic and Near Eastern Law (2003-04). Included in it are: Anver M. Emon, Toward a Natural Law Theory in Islamic Law: Muslim Juristic Debates on Reason As a Source of Obligation; and Andrew Grossman, "Islamic Land": Group Rights, National Identity and Law.

Newly posted on SSRN:
David E. Guinn, Religion In the Public Square: The Debate, forthcoming in The Encyclopedia of American Civil Liberties.