Recently Published On Religion, Law and Politics

Recently published Books of interest:

• Former Senator Gary Hart has published God and Ceaser In America: An Essay On Religion and Politics (Fulcrum Books, Nov. 2005).
• Glenn Feldman, ed., Politics and Religion in the White South (University of Kentucky Press, 2005).
• Peter W. Edge. Religion and Law-- An Introduction (Ashgate, 2005).

Articles from SmartCILP:

• Boston University Law Professor Jay D. Wexler, The Scopes Trope, (Reviewing Larry A. Witham, Where Darwin Meets the Bible: Creationists and Evolutionists in America), 93 Geogetown Law Jour. 1693-1721 (2005).
• David L. Abney, Religion and Housing for the Homeless: Using the First Amendment and the Religious Land Use Act to Convert Religious Faith Into Safe, Affordable Housing, 8 Scholar: St. Mary’s Law Review on Minority Issues 1-15 (2005).
• B. Jessie Hill, Putting Religious Symbolism in Context: A Linguistic Critique of the Endorsement Test, 104 Mich. L. Rev. 491-545 (2005).
• Alenka Kuhelj, Religious Freedom in European Democracies, 20 Tulane European & Civil Law Forum 1-35 (2005).
• Eric Stein, The Church and the Constitution for Europe: On the Margin of ... (Reviewing Joseph Weiler, Un' Europa Cristiana -- Un Saggio Esplorativo.) 11 Columbia Journal of European Law 451-460 (2005).

From Bepress:

• Haoliang Wu and Bingbin Lu, Prior Consents: Preventing Offensive Genetic Engineering Patents Against Indigenous People's Rights, Global Jurist Frontiers: Vol. 5: No. 1, Article 3 (2005).
• Brendan Michael Groves, Winning Wirzburger and Defeating the Blaine Amendments: Arguing Present Efficacy Instead of Past Intent (2005).

Court Finds Muslim Prisoner's Dietary Requirements Were Met

In Cox v. Kralik, 2005 U.S. Dist. LEXIS 37826 (SDNY, Dec. 29, 2005), a New York federal district court rejected a Muslim prisoner's free exercise claim. It held that a prison facility need not offer him Halal food when it had given him a choice of a kosher or vegetarian diet, either of which he could eat without violating his religious beliefs.

Fla. High Court Invalidates School Vouchers Without Reaching Aid To Religion Issue

In Bush v. Holmes, decided today, the Florida Supreme Court struck down Florida's school voucher program on state constitutional grounds without reaching the question of whether the program violates Florida's Blaine amendment that prohibits any state financial aid to any religious denomination or sectarian institution. By a vote of 5-2, the Court held that Florida's Opportunity Scholarship Program violates Article IX, Sec. 1(a) of the state's constitution. The opinion said:

The relevant words are these: "It is ... a paramount duty of the state to make adequate provision for the education of all children residing within its borders." Using the same term, "adequate provision," article IX, section 1(a) further states: "Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools." ... [W]e find that the OSP violates this language. It diverts public dollars into separate private systems parallel to and in competition with the free public schools that are the sole means set out in the Constitution for the state to provide for the education of Florida’s children. This diversion not only reduces money available to the free schools, but also funds private schools that are not "uniform" when compared with each other or the public system. Many standards imposed by law on the public schools are inapplicable to the private schools receiving public monies. In sum, through the OSP the state is fostering plural, nonuniform systems of education in direct violation of the constitutional mandate for a uniform system of free public schools.

[Thanks to Anthony Picarello via Religionlaw for the information.]

Clergy To Consecrate Senate Alito Hearing Room

At 1:00 this afternoon, the Christian Defense Coalition and National Clergy Council will hold a service in the Hart Senate Office Building to consecrate the hearing room where confirmation hearings on Supreme Court nominee Judge Samuel Alito will be held. In reporting on the planned event, the Christian Wire Service yesterday quoted Rev. Rob Schenck, President of the National Clergy Council: "The act of consecrating a special place for sacred use has a long and Biblical history to it. In setting apart the Senate hearing room for God's purpose, we will ask for His will to be done in all that is said by the senators and Judge Alito. We are praying that both parties be faithful to the Constitution, honest in their exchange and devoted to the truth. As to the outcome, we pray only that God's will be done on earth as it is in heaven."

Ohio Gubernatorial Candidate's Ad Criticized For Religious Content

In Ohio, a bitter 3-way race for the Republican nomination for Governor in 2006 is well underway. Yesterday, an op-ed piece in the Ohio State Lantern by Dan Magestro criticized the religious nature of an ad being run by one of the candidates, state Attorney General Jim Petro. The ad, which can be seen on Petro's website, begins with Petro asking "What does God expect of us?" Petro answers, "To do justice, to love kindness." Then, as the Lantern describes it:

The camera floats above a certificate of Christian baptism as Petro talks about his pro-life stance and 33-year marriage. "We believe that we have to do all that we can to advocate the protection of all life," he says. The camera then hovers gracefully over a Bible (yes, a Bible) resting on a table next to a wedding ring, while Petro discusses the sacred bond of marriage between a man and a woman. Petro closes with this shocker: "Our worship and our faith gives me the opportunity to make decisions that are more effective for people."

Magestro concludes: "When the OSU quarterback humbly praises God for his athletic talents, I respect and admire his personal faith. When the attorney general of our state calls on his Christian faith for making decisions on behalf of all Ohioans, I'm appalled."

11th Circuit Issues Unusual Order Clearing Attorney In Textbook-Sticker Case

The U.S. 11th Circuit Court of Appeals yesterday issued an unusual order clearing Atlanta attorney Jeff Bramlett of charges that he purposely misrepresented the timing of events in his brief and oral argument last month in the case of Selman v. Cobb County School District. The Associated Press reported on the order. During oral argument, the 3-judge panel had sharply questioned Bramlett about whether a petition from religious supporters of intelligent design preceded or followed the Cobb County School Board's decision to place stickers on biology books questioning the theory of evolution. (See prior posting.)

Earlier this week, the Fulton County Daily Report said that 11th Circuit Judge Edward E. Carnes had demanded that Bramlett provide a written explanation of his assertions about timing. On Dec. 22, a week after the argument, Bramlett filed a 127-page response saying that there were two petitions -- one with more than 2,300 signatures delivered to the school board before the books were purchased, and a smaller petition delivered after the sticker plan was implemented. Upon receiving that explanation, the Court of Appeals instructed the school board's attorney to provide "any evidence regarding the timing of any petitions that may have been filed with the School Board."

After yesterday's order, attorney Bramlett said: "I appreciate the court going to the trouble of putting out that order and, as they say, removing implications."

Maryland Muslim Students Seek Expansion of School Holiday Calendar

In suburban Baltimore Maryland, Islamic students are asking the county school system to include important Muslim festivals on the school's holiday calendar. The Towson, Maryland Northeast Booster yesterday said a school board committee is studying the issue. County resident Muhammad Jameel said Muslim children feel excluded because schools close for Christian and Jewish holidays, but not Muslim ones. School spokeswoman Kara Calder said religious absences are considered "excused". Students are permitted to make up the work and tests they miss. The school tries not to schedule tests on those days. However, excused absences do count against a student's perfect attendance record, which is sometimes important to qualify for certain scholarships.

Indiana House Speaker Will Not Defy Federal Judge On Prayer

The Baptist Press reported yesterday that in Indianapolis, Indiana Speaker of the House Brian Bosma refused urgings to defy the order of a federal judge banning the opening of legislative sessions with sectarian prayer. (See prior posting.) Bosma said that while the case is being appealed, members could have "informal" and "uncensored" prayers on the floor of the House before each legislative day begins -- but not a formal prayer from the podium. Under the judge's ruling prayers on the floor, rather than from the podium, can invoke Christ's name. Before Bosma spoke, members had already prayed together at the back of the House. Democrat Peggy Welch used "Holy Spirit" in her prayer, while Republican Eric Turner invoked the name of Christ.

In Dover Re-Vote, Challenger Wins Again

In Dover, Pennsylvania on Tuesday, a revote for one seat on the school board resulted in challenger Bryan Rehm again defeating incumbent James Cashman, according to the York Dispatch. The re-vote was limited to 800 voters and was held because a voting machine malfunctioned on election day. (See prior posting.) Rehm will now join seven other candidates fielded by Citizens Actively Reviewing Educational Strategies, a group that opposed the district's controversial plan-- now found to be unconstitutional-- to tell students about Intelligent Design in biology classes. (See prior postings 1, 2 .)

Thai Committee Recommends Establishing Buddhism As National Religion

In Bangkok, Thailand, The Nation yesterday reported that after extensive studies, a Senate committee is about to propose 15 changes to the nation's Constitution. One of the recommendations would insert a provision in the Constitution making Buddhism the national religion. The current Constitution already requires that the king must be a Buddhist (Sec. 9) and provides that the government is to protect Buddhism and other religions (Sec. 73).

Massachusetts Legislature To Consider Bills Affecting Catholic Church

The Boston Globe reports today that over 60 co-sponsors have been obtained for a bill that would partially eliminate Massachusetts' current $20,000 limit on liability for churches and other non-profits. (Gen. L. Mass., Chap. 231, Sec. 85K). The proposed change in the state's charitable immunity law would apply to cases involving sexual abuse of minors, and comes as new negotiations for settlement between sex abuse victims and the Boston Archdiocese were reported. The legislative change would follow similar action last month by New Jersey. (See prior posting.)

Three other bills affecting the Catholic Church have also been introduced into the Massachusetts legislature, but face opposition. Two would restructure the state's statute of limitations in civil and criminal cases involving sexual abuse of minors. A fourth bill, already approved by the Massachusetts Senate, is scheduled for House consideration this month. It would require financial reporting to the attorney general by religious organizations. (See prior posting.) The Massachusetts Catholic Conference particularly opposes the proposed changes in the statute of limitations. Its executive director, Edward Saunders, said, ''The position for the church is that it is opposed to any legislation that crosses the lines of separation of church and state." He said the organization opposes elimination of the statute of limitations for sex abuse because ''as time goes by there is a weakening of testimony and evidence."

Breakaway Church and PCUSA In Court Over Title To Property

The Times Record-Herald (Hudson Valley, New York) yesterday chronicled the background of a case currently pending in a New York trial court pitting the 18-member Ridgebury Presbyterian Church in Wawayanda, New York against the Prebyterian Church USA. In a theological schism over homosexuality, abortion and scriptural interpretation, the Ridgebury congregation notified PCUSA that it was leaving the denomination. Now the two groups are fighting in court over who owns the church building and property. The congregation says it holds deeds to the property which has been in its hands since the congregation was founded in 1792. But PCUSA and the Hudson River Presbytery claim that in 1983, a legally binding property trust clause was inserted into PCUSA's internal constitution. (Book of Order, Chap. VIII, Sec. 2). The clause provides that local congregations hold church property in trust for PCUSA as long as they are members. PCUSA says the provision simply codified what had been a longtime church practice. As the Times-Herald Record reporter points out: "For little congregations wishing to break away on theological grounds, a ruling upholding the trust clause could serve as a material leash on spiritual dissent."

Israeli Religious Parties Reject Religious Affairs Changes

Today's Jerusalem Post reports on a proposal to reduce Israeli national government involvement in Religious Affairs and increase local control of Religious Councils. The Ne'emanei Report was presented earlier this week to the chairmen of three leading Israeli political parties. It suggested that synagogues, funded by a voluntary religion tax, should employ the local rabbi and provide basic educational services and a place of worship. Services that individual synagogues could not provide, such as marriages, burials, ritual baths and kashrut supervision, would be provided by one or more national unions of synagogues. Leaders of the major religious parties, Shas and NRP, rejected the proposal, saying that it would be a first step toward separation of religion and state. National Religious Party chairman Zevulun Orlev said, "Religious services must remain an intrinsic part of the state. This is fundamental to the definition of Israel as a Jewish democratic state."

Dover School Board Rescinds Intelligent Design Policy

The Associated Press reports that in Dover, Pennsylvania on Tuesday, the recently-elected school board rescinded the prior board's policy of presenting students a statement on "intelligent design" as an alternative to evolution in high school biology classes. This move was expected, and came two weeks after a federal judge found the teaching of intelligent design to be unconstitutional. (See prior related postings 1, 2 .)

Italian Case On Proving Existence of Christ Proceeds

Under the Italian Penal Code, both "abuse of popular credulity" (Sec. 661) and "impersonation"(Sec. 494) are offenses. Luigi Cascioli, who lives in Viterbo, a town north of Rome, is a retired agronomist who once studied for the priesthood but later became a militant atheist. He has written a book titled The Fable of Christ. A priest, Father Enrico Righi of Bagnoregio, denounced Cascoli in the parish newsletter for questioning Christ's historical existence. In September,2002, Cascoli responded by filing suit. The trial judge dismissed the case but the Court of Appeal held that Signor Cascioli had a reasonable case for his accusation that Father Righi was "abusing popular credulity". So yesterday the trial judge, Gaetano Mautone, set a preliminary hearing for next month. The London Times reports on the case as one in which Father Righi will be required to prove that Jesus Christ existed. It also reports, not surprisingly, that "the Vatican has so far declined to comment".

In an e-mail sent last September to the Archbishop of Bologna, Cascioli said he would drop the suit if Righi offered just one proof of the existence of Jesus. Cascioli has made many of the documents in his lawsuit available on his website. From the complaint, here is an excerpt from his explanation of the charges:

According to article 661 of the Italian Penal Code, there is an abuse of popular credulity when someone, by means of fraud, deceives a great number of people. In this particular case, the ministers of religion of the Catholic Church, like Righi in the present case, by committing historical falsity, therefore presenting invented facts as if true and actually occurred – but useful to religious doctrine – they deceive all the people that come into contact with the teachings of such religion, by inducing them to believe in that religion, not on the basis of purely theological reasoning (totally legitimate and admissible), but on the basis of a deceptive representation of the facts.

Vermont Enforces Unconstitutional Liquor Regulation

According to today's Rutland Herald, the state of Vermont continues to enforce a liquor control regulation that fairly clearly violates the Establishment Clause. Department of Liquor Control Regulation No. 35 provides that no liquor license may be granted for a premise within 200 feet of a church or school without the church or school's permission. In 1982, in Larkin v. Grendel's Den Inc. the U.S. Supreme Court held that a similar Massachusetts statute violates the 1st Amendment.

Sikh Temple Dispute Goes On As Members Await Court Appeal

In Bedford, Ohio, a dipute that is working its way through the courts required police to be present at midnight New Years Eve services at the Guru Gobind Singh Sikh Sikh Temple. Yesterday's Cleveland Plain Dealer reports on the dispute between less traditional Sikhs who are longtime members of the temple, and more numerous newcomers who favor a return to tradition, including beards and turbans. The longtime leadership also wishes to restrict who can be a voting member of the temple. But a group of the newcomers, claiming they are the newly elected leaders of the Temple, grabbed the microphone at the midnight prayer service, and then returned later Sunday to continue their takeover. Police finally left Sunday after the longtime leaders agreed to leave the temple.

A Cuyahoga County Common Pleas Court judge ruled in 2004 that the Temple's membership could be expanded with the many newcomers and that all members are entitled to vote and view financial records. That paved the way for the new leadership. But the old leaders filed a notice of appeal and aruge that until the 8th Ohio District Court of Appeals rules, they should remain in place as Temple leaders.

Two Prisoner Cases From A Few Months Ago

The decisions in two prisoner free exercise cases from several months ago have just become available. Ford v. Martel, 2005 U.S. Dist. LEXIS 37318 (ED Cal., Sept. 14, 2005), involved complaints about limits on religious services during a prison lock down imposed after weapons-related materials were found near where Muslim inmates had just participated in Ramadan services. A U.S. Magistrate recommended dismissal of complaints that during the Ramadan lock down inmates were given access to a Muslim imam only in their cells.

In Pineda-Morales v. De Rosa, 2005 U.S. Dist. LEXIS 37179 (D. NJ., July 6, 2005), a prisoner complained that he was not allowed separate services for the Apostolic Faith Church, arguing that the "trinity doctrine" of other Protestant churches was inconsistent with teachings of his faith. The court denied prison officials' summary judgment motion on one claim, finding that questions of fact remained on whether prison officials employed the least restrictive means when they denied denominational recognition and Saturday meeting time to Plaintiff's group. However summary judgement on various other claims was granted based on exhaustion, statute of limitations and immunity.

Op-Ed Criticizes Democrats' Outreach To Religious Voters

An op-ed piece in today's New York Times by Joseph Loconte is worth reading. Titled Nearer, My God, to the G.O.P., it accuses the Democrats of now misusing religion as badly as the right. It points out that after the 2004 election, Democrats decided to try to reclaim religious voters. In the House they set up the Democratic Faith Working Group. In the Senate, minority leader Harry Reid added a page called Word to the Faithful to his website.

Pending Federal Legislation On Religious Liberty and Church-State

As Congress reconvenes later this month, at least 20 bills impacting free exercise or church-state relations are pending in committee or at other stages of the legislative process. Here they are:

• Workplace Religious Freedom Act- S.677; H.R. 1445.
  
• Houses of Worship Free Speech Restoration Act- H.R. 235.
  
• Denial of tax exemption for discriminatory social clubs- H.R. 237.
  
• Family Education Freedom Act- H.R. 406.
  
• Bill to allow clergy to revoke their Social Security exemption- H.R. 451.
  
• Trade sanctions for countries that violate human rights- H.R. 967.
  
• Tools For Community Initiatives Act- H.R. 1054.
  
• Tax code's definition of "convention or association of churches"—H.R. 1411.
  
• Responsibility of pharmacies to fill prescriptions- H.R. 1539, H.R. 1652, S. 809.
  
• Liberty List Act- H.R. 1662.
  
• War Memorial Preservation Act—H.R. 2229.
  
• Religious Freedom Peace Tax Fund Act- H.R. 2631.
  
• Public Expression of Religion Act- H.R. 2679.
  
• Commission on Religious Freedom and Respect in the Armed Forces- H.R. 3108.
  
• Disaster Relief Equity Act- H.R. 3208.
  
• Religious exemption from furnishing tax identifying numbers- H.R. 3410.
  
• Voluntary non-denomination prayer at military academies- H.R. 3430.
  
• Reinstating harboring sanctions for paid alien religious volunteers- H.R. 4321.
  
• Public Prayer Protection Act- H.R. 4364.
  
• Extending Equal Access Act to Elementary schools- S. 483.