May Designated Jewish American Heritage Month

May has been designated as Jewish American Heritage Month. Today's Jewish Advocate carries a story about the efforts in Congress that led to President Bush issuing a Proclamation on April 21 (full text) establishing May 2006 as a time to "celebrate the rich history of the Jewish people in America and honor the great contributions they have made to our country."

10 Commandments Trial In Oklahoma

The Tulsa World today describes the testimony in an ongoing trial in Muskogee, Oklahoma, challenging a Ten Commandments monument on the Haskell County courthouse lawn. The testimony focused largely on the intent of the county in erecting the monument. Haskell County Commission Chairman Henry Few said that the Commandments are "a part of Haskell County history" similar to other monuments on the courthouse lawn that honor war veterans, the Choctaw tribe and Stigler High School's 1954 graduating class. However, Pastor Mike Bush, who suggested the monument in 2004, testified that "the Lord just burdened my heart" with the need for the monument. After the county commission approved Bush's proposal, members of 17 area churches raised the $2,000 needed to construct it.

ERISA Exemption For Church Plans Endangers Pensions Of Many Employees

Today's New York Times discusses the growing number of religiously-affiliated hospitals, schools, nursing homes, seminaries and charities that are taking advantage of an exemption for "church plans" in ERISA, the federal law that regulates pensions. Many employees are unaware that their employer has taken advantage of the exemption and that their pensions are no longer covered by federal insurance.

9th Circuit Upholds Limits On Public Employee Religious Expression

Yesterday, in Berry v. Department of Social Services, (9th Cir., May 1, 2006), the U.S. 9th Circuit Court of Appeals upheld the Tehama (California) County Department of Social Services' rules that limited religious expression by its employees. Daniel Berry, an evangelical Christian who worked for the Department, believed that he should share his faith and, where appropriate, pray with other Christians. He challenged the Departmental rules, but the court found that the agency had struck an appropriate balance between the employee's free exercise rights and its concern that the agency not be seen as endorsing a particular religion. The court said in part:

While it allowed employees to discuss religion among themselves, it avoided the shoals of the Establishment Clause by forbidding them from discussing religion with its clients. Similarly, the Department allowed employees to display religious items, except where their viewing by the Department's clients might imply endorsement thus evading the reef of the Establishment Clause. The Department did not prohibit its employees from holding prayer meetings in the common break room or outside, but declined to open the Red Bluff Room to employee social or religious meetings as such use might convert the conference room into a public forum. We conclude that these restrictions were reasonable and the Department's reasons for imposing them outweigh any resulting curtailment of Mr. Berry's rights under the First Amendment of the United States Constitution or Title VII of the Civil Rights Act of 1964.

The case was discussed in an Associated Press report yesterday.

Egyptian Government To Institute Centralized Call To Prayer In Cairo

In Egypt, the Ministry of Religious Endowments has put forward a plan to end the loud and disorganized calls to worship by some 4,000 mosques in Cairo and instead have a centralized call to prayer that is broadcast simultaneously to all the city's mosques. Yesterday's Washington Post says that the government plans to install receivers in all mosques, tuned to a single radio station that broadcasts the call to prayer from al-Azhar, one of the city's main Muslim houses of worship. The receivers will be activated at the proper times and shut off when the synchronized chant is over. Twenty-five muezzins have been selected to work in rotation chanting the call to prayer. The Religious Endowments Minister said the project will cost about $100,000, and should be ready to operate in Cairo in about eight months. Eventually the broadcasts will be extended to mosques in all large Egyptian cities.

Toledo Murder Trial Of Priest Continues With Suggestion Of Ritualistic Killing

In the Toledo, Ohio, the Toledo Blade continues to cover the trial of Fr. Gerald Robinson for the 1980 murder of a nun, Sister Margaret Ann Pahl. Today a Chicago Roman Catholic priest testified that circumstances suggest the killing was a ritualistic murder. Rev. Jeffrey Grob, on the witness stand, pointed out that the murder occurred on Holy Saturday, part of the holiest weekend of the church year. The murder took place in a sacristy where the Holy Eucharist--the presence of God-- is kept between Good Friday and Easter; an altar cloth was used to cover the nun's body, thereby transforming her into an "altar of sacrifice"; and stab wounds over the victim's heart were made in the shape of an inverted cross, a symbol of Satanic worship. Such details, he said, individually may not indicate a ritualistic murder, but in sum represent "a reversal of things sacred that aren't random acts." (See prior postings on the trial 1, 2 .)

In 1980, Father Robinson told the police that another man had admitted to the murder during confession; but then Robinson changed his story. Normally a priest would be excommunicated for revealing anything that was said in a confession, but this has not happened in Robinson's case. Rev. Grob testified, in response to a question, that a church court in deciding whether to excommunicate might take mitigating circumstances into account, such as Father Robinson being under stress because of the police interrogation.

In Israel, Government Formed With Shas As Part of Coalition

Bloomberg News reports that in Israel yesterday, Prime Minister Ehud Olmert was able to create a coalition government with a majority in in Knesset by bringing the Sephardic Orthodox religious party, Shas, into the coalition. Haaretz and the Jerusalem Post today report on detail of the agreement. Shas came in with the understanding that it did not agree to Olmert's plans for evacuation of some of the West Bank settlements. Shas also received a number of other concessions: increased allotments to socioeconomic programs; three cabinet positions (including a minister-without-portfolio in the Prime Minister's Office in charge of religious services); and a provision that essentially rules out any action on permitting civil marriage in Israel. Shas did not get the control it wanted of the Israel Lands Administration. Two other religious parties, the National Union-National Religious Party and United Torah Judaism, criticized Shas's decision to sign the coalition agreement.

Texas Supreme Court To Review Claim Against Pastor-Family Counselor

Yesterday's Fort Worth Star-Telegram reported that the Texas Supreme Court has agreed to review the state court of appeals 2004 decision in Penley v. Westbrook. The court of appeals upheld jurisdiction over several claims by Peggy Penley against Rev. C.L. 'Buddy" Westbrook, pastor of CrossLand Community Bible Church in Fort Worth. Westbrook was also a professional family counselor. Penley sued Westbrook for negligence in his secular role as counselor. After Penly decided to file for divorce against her husband, Westbrook and other church elders published a letter to church members telling them that there was no biblical basis for Penley's divorce, and that she had engaged in a 'biblically inappropriate" relationship with another man. The letter also encouraged the church members "to shun" Penley in order to obtain her repentance and restoration to the church. Westbrook has invoked the First Amendment doctrine that shields churches and clergy from civil suit over ecclesiastical matters.

The First Amendment And Parking Rules

An unusual First Amendment dispute simmering in the nation's capital was covered last week by the Washington Times. Sunday churchgoers regularly ignore the law banning double parking, and D.C. police historically have not been issuing tickets. Now new neighbors are often complaining that their cars are being blocked. In response, the city originally announced that it would begin enforcing the parking rules. However after 1000 clergy and parishioners protested a week ago, the mayor decided to appoint a task force of residents, city officials and church and community leaders to discuss solutions to the problem. Some church members claim that the city is trying to push churches out of the District.

These kinds of parking issues pose intriguing legal questions under exiting First Amendment jurisprudence. The Becket Fund has called attention to the issue in its e-update this week. Its Legal Counsel, Jered Leland, says that enforcement of the double parking law is unconstitutional because it places an unfair burden on religious institutions. Others however claim that the city's non-enforcement policy is illegal because it gives a preference to churches.

If one begins to examine the issue closely, policies in other cities could also be implicated. New York City has an elaborate policy on suspension of alternate side parking regulations. It has identified 34 holidays, many of them religious, on which it suspends the rules that are designed to facilitate traffic flow and street cleaning. Last year, some controversy was generated when New York City Council added the Hindu holiday of Diwali to the list of days on which parking restrictions were eased. If it were not to suspend these rules, it would pose substantial religious burdens on at least some faiths. Observant Jews are precluded from driving cars on many holidays. Enforcing the parking rules would force them to move their autos in violation of Jewish law.

Public Employee Dismissal Upheld For Harassment Including Religious Messages

In Leslie v. Johnson, 2006 U.S. Dist. LEXIS 24064 (SD Ohio, March 14, 2006), an Ohio federal district court rejected a claim by former Ohio Department of Development attorney Mark Leslie that his free exercise rights were infringed when he was dismissed for making unwanted personal advances to fellow employee Karen Banyai and disobeying his supervisors' orders to have no further non-work contact with Banyai. Some of Leslie's unwanted advances to Banyai consisted of sending her religious material and inviting her to participate in various projects sponsored by religious groups. In rejecting Leslie's free exercise claim, the court applied the balancing test that the U.S. Supreme Court developed in Pickering v. Board of Education, for cases involving public employee termination for speaking on matters of public concern.

Religious Groups At Center of Today's "Save Darfur" Rally In D.C.

Today in Washington, D.C. (as well as in other cities around the country), the Save Darfur Coalition is sponsoring a large rally to urge U.S. leaders to take more action to stop the ongoing genocide in Darfur. As reported by yesterday's San Francisco Chronicle, religious leaders from Jewish, Muslim and Christian groups have been at the forefront of the Save Darfur movement. The Baltimore Sun calls this "the broadest coalition of faith-based groups ever assembled for a political cause". American Jewish World Service has take a leading role in the campaign. Its president, Ruth Messinger, along with 5 members of Congress and 5 others, was arrested on Saturday for demonstrating in front of the Sudanese embassy. The Jewish Holocaust experience has made Darfur a particularly resonant issue in the Jewish community.

There are other religious elements in the Darfur situation. The London Sunday Times points out that the violence in Darfur is Muslim-on-Muslim. It also says that "there have been tensions in the Save Darfur campaign over some American Christian groups' zeal for conversions. After complaints, Sudan Sunrise, a group based in Kansas, last week removed references on its website to its 'one-on-one lifestyle evangelism to Darfurian Muslims living in refugee camps in Chad'."

Meanwhile, yesterday President George W. Bush met with organizers of the Washington rally, saying that the United Nations needs to augment African Union troops already in Sudan. In his statement following their talks, Bush said that the U.S. is working through NATO to respond to the situation, and added, "those of you who are going out to march for justice, you represent the best of our country."

New Scholarly Articles On Church-State

From SmartCILP:
Chris Kemmitt, RFRA, Churches and the IRS: Reconsidering the Legal Boundaries of Church Activity In the Political Sphere, 43 Harvard Journal on Legislation 145-180 (2006).

From SSRN:
Kyle Duncan, Subsidiarity and Religious Establishments in the U.S. Constitution, (forthcoming in Villanova Law Review).

Department of Justice Plans Single-Faith Pre-Release Program For Prisoners

Yesterday's Washington Post reported on the Justice Department's plans to create a single-religion, faith-based pilot program to prepare federal prison inmates for release. On March 30, the Bureau of Prisons (BOP) issued a formal Request for Proposals (RFP) from private contractors to run the program, called "Life Connections". The RFP says that the government "intends to make multiple awards for the provision of single-faith, residential reentry programs at one or more pilot site locations." The plan is to set aside cells at up to six federal prisons for the voluntary experiment that aims to "facilitate personal transformation for the participating inmates, and thereby reduce recidivism." $3 million has been appropriated for the program. A BOP spokesperson said it is possible that different prisons could host programs run by different faith groups. Some academics say that the program poses serious constitutional issues. The Department of Justice says the program is constitutional because it is voluntary and gives participating inmates no special advantages.

New Mississippi Law May Permit Teaching of Creationism

Yesterday's Biloxi Sun-Herald reported that Mississippi Governor Haley Barbour has signed into law H.B. 214 that may allow the teaching of both intelligent design and creationism in public school classrooms. The new law provides:

No local school board, school superintendent or school principal shall prohibit a public school classroom teacher from discussing and answering questions from individual students on the origin of life.

Secular Democracy Promoted For Nepal

Following popular demonstrations in Nepal that forced the king to reinstate the Parliament, now the country's second-largest party, the Communist Party of Nepal-Unified Marxist Leninist, is urging that the country become a secular republic. Currently, Nepal is a Hindu kingdom. Daily India yesterday reported on these developments.

3rd Circuit Invalidates Registration Law For Door-To-Door Proselytization

The 3rd Circuit Court of Appeals yesterday struck down a Mt. Lebanon, Pennsylvania ordinance that required registration of door-to-door canvassers who planned to hand pamphlets or written material to residents, or to discuss with them issues of religious or public interest. The case is Service Employees Int’l. Union, Local 3 v. Municipality of Mt. Lebanon, (3rd Cir., April 28, 2006). While the suit was brought by a union that wanted to conduct a get-out-the-vote campaign, the decision is also important for religious groups that wish to proselytize door-to-door. The court held that "the challenged ordinance is not tailored to serve Mt. Lebanon’s legitimate interest in preventing crime and fraud. At the same time, that ordinance substantially burdens a broad range of speech which enjoys the highest level of First Amendment protection." The Associated Press yesterday reported on the decision

Baptist Official Speaks on Church-State Issues

On Friday, the Baptist Standard reprinted parts of a lecture given earlier in the month by Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. The remarks were part of his Maston Christian Ethics Lectures at Hardin-Simmons University’s Logsdon School of Theology. His title was "The Top 10 Lies About Church & State". He contended that "lies" about the relationship of church and state in America were being perpetuated both by "people who should know better", and by other "well-intentioned souls who simply have been misled".

Hawaii Court To Order Artifacts Removed From Cave

Last December, the 9th Circuit Court of Appeals upheld an earlier district court ruling involving a dispute between competing native Hawaiian groups over valuable burial artifacts. A native Hawaiian group was ordered to return 83 valuable burial objects to the Bishop Museum so that 13 other claimants could help decide their final resting place. Following that decision, federal trial court Judge David Ezra ordered the parties to conduct a Hawaiian mediation process called hooponopono to decide how the items could be removed from Kawaihae, or Forbes Cave, and where they should then be kept. Today’s Honolulu Star Bulletin reports that since then the sides have been meeting under the guidance of mediators, but yesterday it was reported that still no resolution had been reached. So Judge Ezra will now issue a court order requiring the cave to be opened and the objects to be removed in the safest possible way, so all claimants can examine them and have input into their final disposition. (See other related postings, 1, 2, 3.)

Swedish Muslim Group Wants Legal Accommodations; Others Object

The Jerusalem Post reported on Friday that the Swedish government and moderate Muslims in Sweden have strongly rejected a call by Mahmoud Aldebe, head of Sweden's largest Islamic organization, for the enactment of special laws to aid Muslims in observing their religious obligations. Aldebe’s letter was sent to each of Sweden’s parliamentary parties on behalf of the Swedish Muslim Association, as Sweden moves toward fall elections. The letter suggested that Muslims should be given time off work for Friday prayers and Islamic holidays; imams should approve all divorces between Muslim couples; public swimming pools should have one night a week for women-only to swim; imams should have the right to teach Islam to Muslim children in public schools; and special Muslim cemeteries should be established. The only politician who seems to agree with the proposal is Ebtisam Aldebe, running as a member of the Centre Party. (Brussels Journal report.)

Hindu Couple In New York Lose Battle To Keep Cows In Village

I have previously posted information about the appeal filed by an Angelica, New York, Hindu couple, Stephen and Linda Voith, challenging a trial court's decision that prohibits them from keeping their six cows (considered sacred in Hindu beliefs) within the city limits. (Legal background.) On Friday, the Appellate Division affirmed the trial court’s determination. In Village of Angelica v. Voith, (App. Div., April 28, 2006), the court held that husband Stephen Voith had lost in a prior case after fully litigating the same free exercise defenses raised in this case. That operated as collateral estoppel to preclude both him, and his wife Linda who is in privity with him, from relitigating the issue. On the question of whether the town’s ordinance was violated, the court held their leasing of 12 non-contiguous acres did not satisfy the requirement that the animals be kept on at least a 10-acre area. Also the court said that the Voith’s claim that their animals are companions or pets did not bring them into compliance.