Another Menorah Dispute- This Time In Colorado

Yesterday's New York Times reports on the dispute in Fort Collins, Colorado over a rabbi's request to place a menorah on publicly-owned property for the eight days of Hanukkah. For the second year in a row, the Fort Collins Downtown Development Authority has refused to permit the menorah in Old Town Square. Several city council members, backing the decision, said they were concerned that permitting the menorah would open the way for many other religious groups and organizations to demand that their symbols be placed in Old Town Square as well. Many in Fort Collins think that the city is wrong is excluding the menorah. This year, as it did last year, CooperSmith's Pub and Brewing in Old Town Square has permitted the rabbi to place the 9-foot tall menorah on its privately-owned premises. Many other businesses and residents are displaying their own small menorahs in support of the city's small Jewish population.

Property Fights Looming As Conservative Episcopal Churches Leave the Fold

New legal fights over ownership of church property may lie ahead as two large and influential Episcopal parishes in Fairfax and Falls Church, Virginia voted yesterday to leave the Episcopal Church in the United States (ECUSA) and affiliate with the Convocation of Anglicans in North America, a branch of the Nigerian Anglican church led by conservative archbishop Peter J. Akinola. The action of these parishes, and five smaller ones elsewhere in Virginia, result from disagreements with ECUSA over its increasingly liberal policies, culminating in the 2003 ordination of an openly gay bishop. Today's New York Times reports that while both sides want to avoid legal battles, Bishop Peter James Lee of the Episcopal Diocese of Virginia says that under church law, parish property is held in trust for the denomination and the diocese. He added: "As stewards of this historic trust, we fully intend to assert the church’s canonical and legal rights over these properties."

New Articles and Book On Religion and Law

From SSRN:
Jaynie R. Randall, Sundays Excepted: Originalism, the Blue Laws, and the Christian Nation, (Dec. 2006).

Nicholas Aroney, The Constitutional (In)Validity of Religious Vilification Laws: Implications for Their Interpretation, (Federal Law Review, Vol. 34, p. 287, 2006 ).

David Burnett, Atheism and the Courts, (May 2006).

From SmartCILP:
Decisions and Families: A Symposium on Polygamy, Same-Sex Marriage, and Medical Decision Making. Articles by Armand H. Matheny Antommaria, John E.B. Myers, Elizabeth B. Cooper, Christine Talbot and Irwin Altman. 8 Journal of Law & Family Studies 293-394 (2006).

New Book:
Michael J. Perry, Toward a Theory of Human Rights: Religion, Law, Courts, (Cambridge University Press, 2006) (Abstract).

Oregon Suits By Abuse Victims Against Archdiocese Settled

In Eugene, Oregon last week, U.S. District Judge Michael Hogan, at a press conference with church officials and lawyers for abuse victims, announced a settlement between the Archdiocese of Portland and almost 150 plaintiffs. Last Friday's Catholic Sentinel says that the settlement does not require the Archdiocese to sell off parish or school property. Among the suits settled is one that pushed the Archdiocese into bankruptcy proceedings in 2004. Insurance companies will contribute $50 million to the settlement fund, and the rest of the undisclosed settlement amount will come from the sale of non-parish and non-school real estate. Creditors, including abuse victims, must still vote to approve the settlement. Part of the settlement plan will result in parishes and schools being incorporated separately as charitable entities separate from the archdiocese.

5th Circuit Issues Splintered Decision On School Board Prayer

The U.S. 5th Circuit Court of Appeals on Friday issued an important decision on the opening of school board meetings with sectarian prayer. In Doe v. Tangipahoa Parish School Board, (5th Cir., Dec. 15, 2005), the court, in three divergent opinions, affirmed in part and vacated in part an injunction against opening school board meetings with religious invocations that had been issued by the district court in 2005. The district court, in its opinion, had held that the proper test to be applied was the Supreme Court's three-part Lemon test, rather than the legislative prayer exception of Marsh v. Chambers.

In the 5th Circuit, only Judge Stewart agreed fully with the district court. Judge Clement's opinion said that Marsh rather than Lemon applies to school board invocations, and found that all of the challenged prayers were permissible under Marsh. None of them "exploited the prayer opportunity either 'to proselytize or advance any one, or to disparage any other, faith or belief'." Judge Barksdale assumed, without deciding, that Marsh applied, but found that the prayers at issue were overtly sectarian, and were therefore not permitted by Marsh. The result of these splintered opinions was that the trial court's injunction was affirmed as to four specific prayers, but vacated insofar as it more broadly prohibited all prayer at board meetings.

The decision was covered by today's New Orleans Times-Picayune.

Bankruptcy Court Invites Free Exercise Challenge To Nearly-Repealed Chapter 13 Provision

Shortly before Congress passed an amendment to the Bankruptcy Act that would change the court's result, a New Mexico Bankruptcy Court refused to confirm a Chapter 13 plan that allowed over-median income debtors to deduct charitable contributions as a reasonably necessary expense. However the court gave the debtors 45 days to show that Congress infringed their free exercise of religion by distinguishing between above- and below-median income debtors in the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005. In the case, In re Meyer, 2006 Bankr. LEXIS 3383 (D NM Bankr., Dec. 4, 2006), the United States Trustee supported the debtors who were attempting to protect their ability to continue to make charitable contributions before obligations to other creditors were satisfied. The statutory change to Chapter 13 that will protect charitable contributions is awaiting the President's signature.

Russia's NGO Law Burdens Religious Organizations

Reuters reports that church leaders in Russia are asking the government for an exemption from the country's Law on Non-Governmental Organizations enacted earlier this year. The law, which takes effect in April 2007, requires NGOs to register with a special state agency and supply details of membership, sources of finance and a record of all meetings. Moscow's Catholic Archbishop says this means it would need to report the number and names of attendees at every Mass the church conducts. The Russian Orthodox church says the new requirements are reminiscent of the Soviet era. The Moscow Orthodox Patriarchate told Interfax last week that a number of the provisions of the law are impossible to observe. It suggests that religious organizations should be exempted from the requirement to report on the number of members.

Christian Group's Suit Against Chicago Police Survives Dismissal Motion

In Marcavage v. City of Chicago, 2006 U.S. Dist. LEXIS 90443 (ND IL, Dec. 14, 2006), an Illinois federal district court refused to dismiss First Amendment free expression and equal protection claims brought by volunteers for Repent America, a Christian ministry, against the Chicago police department. Plaintiffs alleged that police limited their ability to pass out leaflets during Chicago's "Gay Games" last July by attempting to restrict them to "Free Speech Zones". The court also refused to dismiss plaintiffs' claims under the Illinois Religious Freedom Restoration Act.

Religious Day Cares Resist Regulation In Pennsylvania

Today's Lancaster (PA) Sunday News carries a lengthy article on the ten-year battle in Pennsylvania over state licensing of religiously affiliated day-care centers. The state's welfare department has threatened to close down a dozen unlicensed non-profit day cares. The religious day-care centers do not object to health and safety inspections, but rear that licensing will lead to state regulation of hiring and curriculum.

Church Orders Kenya's Catholic Clergy Out Of Politics

In Kenya, a pastoral letter issued by the Kenya Episcopal Conference on behalf of the country's 27 Catholic bishops prohibits Catholic clergy in the country from accepting positions on governmental boards. It also says that priests should not take sides in party politics. Friday's East African Standard reports that the mandate was issued as the Kenyan government began to try to enlist the support of churches for President Kibaki in next year's elections. The directive seems to particularly be directed at Father Dominic Wamugunda, the Dean of Students, University of Nairobi, who has been increasingly active in government affairs.

4th Circuit Upholds Good News Club Challenge To School

Yesterday in Child Evangelism Fellowship of South Carolina v. Anderson School District Five, (4th Cir., Dec. 15, 2006), the U.S. 4th Circuit Court of Appeals reversed the trial court and found that the unfettered discretion given to South Carolina school officials to waive fees for use of school facilities violates the First Amendment. Child Evangelism Fellowship had been denied a fee waiver for religious Good News Club meetings it wished to hold in the school. The court found that permitting fee waivers when it is "in the district’s best interest" could invite administrators to discriminate on the basis of content or viewpoint of a group's speech. (See prior posting on lower court’s decision.) The Associated Press reported on the 4th Circuit’s decision.

Creche Opponents Find Different Tactics

In Clio, Michigan, after failing to convince the city to remove a nativity scene from city-owned land downtown, the Freedom From Religion Foundation has requested to lease space next to the creche to put up its own message that would read: "At this season of the Winter Solstice, may reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is but a myth and superstition that hardens hearts and enslaves minds." The Flint Journal yesterday reported that the land in question is owned by the city, but operated by the Chamber of Commerce.

Meanwhile, elsewhere others have moved to self-help in their opposition to nativity scenes on public property. The San Diego Union Tribune today reports that this year almost two dozen thefts of baby Jesus figures from nativity scenes have been reported. The paper says these kinds of thefts "have become something of a holiday tradition".

White House Issues Hanukkah Greetings

Yesterday, the White House released the President’s 2006 Hanukkah Message. It recounts the history of Hanukkah: "Judah Maccabee and his followers courageously set out to reclaim Jerusalem from foreign rule. Though their numbers were small, the Maccabees' dedication to their faith was strong, and they emerged victorious." It continues: "the glow of the menorah is a reminder of the blessings of a just and loving God and the sacrifices made over the centuries for faith and freedom."

Egypt's High Court Rules Against Bahais

Egypt's Supreme Administrative Court today ruled against Egyptian Bahais' right to be identified by their proper religion on government documents. Ekklesia says that the decision, which reverses a lower Administrative Court, "upholds current government policy, one which forces the Baha'is either to lie about their religious beliefs or give up their state identification cards. The policy effectively deprives Egyptian Bahais of access to most rights of citizenship, including education, financial services, and even medical care."

Middle East Online reports that Judge Sayed Nofal said: "the constitution promotes freedom of belief for the three recognized heavenly religions and they are Islam, Christianity and Judaism. As for the Bahais, Islamic jurists have all agreed that the Bahai faith is not one of the threerecognizedd religions. Those who belong to this religion are apostates of Islam, because the faith's principles contradict the Islamic religion and all other religions." (See prior posting on lower court decision.) The case began when a Bahai couple applied to have their daughters added to their passports that listed their faith as Bahai. Human rights organizations condemned today's decision, but many in Parliament support it. (See prior posting.) The case is seen by many as an important test of religious freedom in Egypt.

UPDATE: UPI reports on Monday that the U.S. State Department has criticized the decision of Egypt's Supreme Administrative Court.

Recent Prisoner Free Exercise Cases

In Buckley v. Alameida, 2006 U.S. Dist. LEXIS 87579 (ED CA, Dec. 4, 2006), plaintiff was a black Orthodox Jew incarcerated in California Correctional Instutition. He claimed that his free exercise rights were violated when prison officials confiscated his kosher food package in retaliation for his filing a citizen's complaint against a correctional officer. A federal magistrate judge recommended that his free exercise and equal protection claims be dismissed, but that his retaliation claim based on this incident move ahead. He claimed that in a separate incident his menorahs, candles and radio were confiscated, depriving him of his ability to celebrate Hanukkah. The court found that his claim of intentional religious discrimination growing out of this incident could also move forward.

In Bell v. Dretke, 2006 U.S. Dist. LEXIS 89376 (SD TX, Oct. 23, 2006), a Texas federal Magistrate Judge recommended rejection of a prisoner's claim that his free exercise rights were violated. The prisoner, who was under a cell restriction disciplinary sanction, was not permitted to attend eve of Ramadan services nor served a "fasting meal".

In Bilal v. Lehman, 2006 U.S. Dist. LEXIS 89430 (WD WA, Dec. 8, 2006), a federal district court dismissed on the grounds of mootness and immunity a former Muslim prisoner's claim that his rights were violated when prison authorities refused to provide him with a Halal diet. The court said, however, that "Defendants should not construe the court's ruling ... as a license to ignore future dietary requests from inmates with sincerely held religious beliefs."

In Muhammad v. McDonough, 2006 U.S. Dist. LEXIS 89439 (MD FL, Dec. 8, 2006), a Florida federal district court dismissed a prisoner's complaint that his First Amendment rights were violated when prison officials refused to change his name in his official records to his new religious name. Prison policy called for the adding of his new name to his identification tag, but not for its use for other purposes.

In Moore v. Camp, 2006 U.S. Dist. LEXIS 89986 (MD FL, Dec. 13, 2006), a Florida federal district court permitted a Muslim prisoner to proceed against several defendants on his claims that his free exercise rights were violated by the removal of a prayer towel as contraband, a delay in furnishing him a Quran, and his not receiving a diet in conformance with his Muslim beliefs.

In McDonald v. Schuffman, 2006 U.S. Dist. LEXIS 90004 (ED MO, Dec. 13, 2006), a Missouri federal district court dismissed a suit by civilly committed residents of the Missouri Sexual Offender Treatment Center. One of plaintiffs' claims was that their right to free exercise of religion was violated by MSOTC's policy on what items are allowable and because there is a lack of religious service offerings.

Courthouse Christmas Tree Furor In Toronto

In Canada, CTV and UPI both report that a Toronto judge has created a good deal of consternation by ordering her staff to move a small Christmas tree out of the courthouse lobby and into a back hallway where it is hidden by frosted glass doors. Justice Marion Cohen, in a letter to her staff, said that when the tree is in the lobby, visitors are confronted with it and it makes non-Christians "feel they are not part of this institution". A Canadian Muslim leader, Ontario's Premier and several religious groups have all criticized the judge's move. Tarek Fatah, founder of the Muslim Canadian Congress, said that "they should ban political correctness, not Christmas trees." Court employees say that the tree has been displayed in the lobby for decades.

Pakistan Court Acquits Bookseller Of Making Additions To Quran

In Pakistan, according to today's Daily Times, the Peshawar High Court bench has acquitted Abdul Ahad Noorani of charges of Tehreef (making additions to the text of the holy Quran). A lower court had imposed life imprisonment on the shop owner who, it was alleged, was selling the booklets of "Yasin Maghribi" and "Ayatul Kursi", in which he had done Tehreef. The lower court had statements from 12 eyewitnesses and had received a fatwa from a local mufti who said Noorani had added to the real text of books. In addition to acquitting Noorani due to lack of evidence, the High Court urged the government to create a religious scholars' body to issue fatwas on important issues, and to end the practice of unofficial fatwas.

Turkey's Muslims Celebrate A Secular Christmas

The McClatchey Newspapers today carry an interesting story on how Christmas has caught on in Turkey, a country that is officially secular but whose population is 99% Muslim. Around the country trees are trimmed, children await presents from Father Christmas (Santa Claus), and shopping malls are filled with blinking lights. However, despite angels and stars as part of the decorations, Christmas has no religious significance in the country. Another difference-- belly dancers are also a Christmas tradition. In Turkey, Christmas is celebrated on December 31-- half way between the December 25 date used by Western Christianity and the January 7 date used by Eastern Orthodox Christians.

Jewish Community Divided On Menorahs In Public Square As Hanukkah Begins

Tonight begins the Jewish holiday of Hanukkah. Papers around the nation report on the campaign by the Chabad movement to have Hanukkah Menorahs displayed in public places, and the ambivalence of other portions of the Jewish community about this push. The Berkshire Eagle reports on Sunday's planned Menorah lighting at the Berkshire Mall. Rabbi Leo Volovik, director of Chabad of the Berkshires says: "We assemble in the Berkshire Mall to light a public menorah to tell people that the lesson of Hanukkah is universal." But Rabbi Deborah Zecher of the Hevreh of Southern Berkshire synagogue says: "I disagree. Religious symbols belong in religious places."

A similar debate is taking place in Nashville where, according to The Tennessean, this year for the first time there will be a Menorah in Nashville's Riverfront Park. It will be lit by Nashville Mayor Bill Purcell. Chabad Rabbi Yitzchok Tiechtel has led an effort for several years to get Menorahs in public places. For the past four years, one is placed on the state capitol grounds. Tiechtel has gotten Menorahs into malls and grocery stores. Next Thursday, shoppers at the Mall of Green Hills will construct a 10-foot-tall menorah made out of of Legos. Tiechtel justifies all of this by saying: "It's a holiday of religious freedom. And I personally feel that a lot of Jewish people feel like they would like to have a display of something of their own on the holiday, that their holiday gets lost." However, again, others in the Jewish community do not all agree. Rabbi Laurie Rice says: "On the one hand, Jews in general feel good when they see menorahs displayed publicly because they feel like there's some equity, even though we live in a such a Christian culture. On the other hand, Hanukkah is not a major holiday in Judaism, and are we inflating it only because of competition with Christmas?" Rice said she personally believes "we're just commercializing Judaism and, in the same way that Christians take the season to heart, it's probably equally as frustrating."

An interesting article run last year by The Forward suggests that Christian activists have used Chabad's campaign for Menorahs in public places as leverage to demand nativity displays on public property. [Thanks to Joe Knippenberg for the lead to this article.]

"Christmas Wars" Discussed At Pew Forum

The Pew Forum on Religion & Public Life has posted a transcript of an interesting discussion it hosted on Tuesday titled The Christmas Wars: Religion in the American Public Square . Speakers were Jon Meacham, managing editor of Newsweek and Michael Novak, resident scholar at the American Enterprise Institute. [Thanks to Joseph Knippenberg for the lead.]