Suit Seeks Identity of Bloggers Who Claimed Abuse by Rabbi

Public Citizen last week announced the filing of two motions in a pending California case in which Rabbi Mordecai Tendler, who was accused of sexually propositioning women who came to him seeking spiritual guidance, is trying to force Google to disclose the identities of four anonymous bloggers. (Full text of motions 1, 2.) Concerned about First Amendment issues, Public Citizen is urging the court to adopt a balancing test for these kinds of cases.

Tendler, who denies the charges against him, has been expelled from the Orthodox Rabbinical Council of America and was later sued for sexual harassment a former congregant. He is seeking to learn the identities of four bloggers who wrote about his case on: rabbinicintergrity.blogspot.com/, jewishsurvivors.blogspot.com/, jewishwhistleblower.blogspot.com/ and newhempsteadnews.blogspot.com. Tendler claims that defamatory materials about him have been posted. A report in today's Forward says that blogs and message boards are increasingly being used by Orthodox Jewish women to report allegations of sexual misconduct by rabbis.

Malaysia's School No-Turban Rule Upheld

On Wednesday, Malaysia's highest court-- the Federal Court-- upheld the Education Ministry's rule that bars the wearing of a turban as part of one's school uniform during school hours. New Straits Times reports on the suit that was filed on behalf of three Muslim brothers who had been expelled from school for refusing to remove their turbans. They claimed that the no-turban rule is unconstitutional, but the court said that wearing a turban is not a mandatory requirement of Islam. The court also pointed out that students can still wear turbans outside of school, and even in school can wear them in the prayer room. In its decision, the Court praised the Government's moves to preserve Malaysia’s multi-racial and multi-religious make-up.

Ohio Science Education Standards Again Challenged

Apparently some members of Ohio's state board of education are planning to try again to change the science instructional standards in Ohio schools. Americans United for Separation of Church and State said yesterday that board member Colleen Grady last month urged the Board of Education’s Achievement Committee to give 10th-grade science teachers guidance on teaching evolution and other "controversial" issues such as global warming, cloning and stem-cell research. This week, Americans United filed a request under the Ohio open records law asking for copies of the Grady proposal as well as all related documents. Earlier this year, the Ohio board, after a long battle, rejected changes that would have urged criticism of evolutionary theory in science classes. (See prior posting.)

Sikh Funeral Pyre In Britain May Have Violated Law

In Northumberland yesterday, Rajpal Mehat, an Indian-born Sikh who drowned several months ago in London, was cremated on the first religious funeral pyre in Britain in modern times. The Guardian reports that police are now investigating the funeral, claiming that the ceremony may have violated the Cremation Act that they say prohibits the cremation of human remains anywhere except in a crematorium. Northumbria police reluctantly permitted the ceremony to proceed, not wanting at the time to further upset a grieving family. Davender Ghai, president of the Anglo-Asian Friendship Society says that the Cremation Law does not forbid religious funeral pyres. (Backgound on Sikh funerals.)

Ohio Now Requires School Display of Donated US or State Motto

Ohio's Governor Bob Taft yesterday signed Sub. H.B. 184 which requires school districts that receive donated copies of the mottoes of the United States ("In God We Trust") or the State of Ohio ("With God, All Things Are Possible") to display them in school buildings. The requirement also applies when funds are donated to purchase copies of either motto. The law sets out design requirements, and permits school boards to adopt alternative designs.

NY Appellate Court Dismisses Satmar Case As Involving Doctrinal Dispute

In a much-watched case, yesterday a New York state appellate court dismissed a suit between two factions of the Orthodox-Jewish Satmar Chasidic community. The two sons of recently deceased grand rebbe Moshe Teitelbaum are engaged in a long-running battle for control over millions of dollars of property belonging to the 100,000 member group. This piece of the dispute involved the question of who was the properly elected president of the Satmar's congregational board in Williamsburg, and whether the grand rebbe had the authority to remove a president of the congregation. (See prior postings, 1, 2.) According to a report in today's New York Sun, the appellate court sitting in Brooklyn ruled that "Resolution of the parties' dispute would necessarily involve impermissible inquiries into religious doctrine and the congregation's membership requirements."

A dissent by Judge Robert Spolzino argued that "the by-laws of the congregation here provide the neutral principles of law upon which the authority of the grand rebbe with regard to the corporate governance of the congregation can be determined."

This decision continues the current balance of power in the Satmar community, with the Williamsburg group led by Rabbi Zalmen and the Kiryas Joel faction led by Rabbi Aaron.

UPDATE: Here is the full opinion in In re Congregation Yetev Lev D'Satmar, Inc., v. Kahana, (App. Div., 2nd Dept., July 11, 2006). There was a companion decision in Congregation Yetev Lev D'Satmar of Kiryas Joel, Inc. v. Congregation Yetev Lev D'Satmar, Inc., (App. Div., 2nd Dept., July 11, 2006), that challenged the transfer of a 50% interest in the Williamsburgh congregation's cemetery to the Kiryas Joel congregation. The court held: "The transfer ... is ... bound with this leadership dispute and it is clear that, at least in part, it was made to advance the interests of one of the competing Satmar factions and not to advance religious or charitable objects generally. Under these circumstances it cannot be said that the transfer was in the best interests of the Brooklyn Congregation and accordingly we decline to exercise our discretion to approve it, thereby restoring the status quo ante." Judge Spolzino concurred in the result. [Thanks to Steven H. Sholk for the lead.]

Court Upholds School Fees For Good News Club

In Child Evangelism Fellowship of South Carolina v. Anderson School District 5, 2006 U.S. Dist. LEXIS 46298 (D. SC, July 7, 2006), a federal district court in South Carolina upheld a school district's policy on charging fees for use of school facilities by groups running after-school programs. Child Evangelism Fellowship (CEF) applied to use school facilities for the Good News Club, a Bible and religious education program for elementary school children. The school informed CEF that it would be required to pay a rental fee. CEF argued that this discriminated against it on the basis of its religious viewpoint and the content of its message. Even though other groups offering after-school programs , such as the scouts and the YMCA, came within the school's fee waiver policy, the court held that the District had valid reasons for treating CEF differently, and that administrators had not applied school policy in a discriminatory manner.

Free use was permitted for school-related organizations, organizations offering joint programs with the school, and, in the original version of the policy, others where the school found a fee waiver to be in the school's best interest. After suit was filed against it, the District eliminated the waiver provisions, but grandfathered in free usage for groups that had been using school facilities in the past. The court found these to be valid classifications, and rejected CEF's free speech, free exercise, equal protection and establishment clause arguments.

In deciding the case, the court also dealt with standing, mootness and 11th Amendment arguments.

Ohio Charity Rule Amendments Will Impact Faith-Based Groups

Interested parties have until July 28 to file comments on Proposed Rules Changes for charitable organizations issued by Ohio Attorney General Jim Petro on June 30. The Attorney General's Fact Sheet says: "Faith-based organizations that are not closely controlled by churches, including many hospitals and a few nursing homes, would be required to file an annual report under the new rules. However, the rules would clarify that churches and strictly religious organizations remain exempt from registration."

An accompanying press release explains that "the rules are aimed at reducing the potential for problems such as excessive executive compensation and expense reimbursements by charities and hospitals, or conflicts of interest in business contracts let by governing boards... The proposal is also designed to foster best practices by charitable hospitals and other proprietary charitable organizations in billing, collection, and charity care, and to set standard guidelines in Ohio for reporting how charitable organizations benefit the community so the public can make meaningful comparisons of their charitable activities. [It requires] ... larger charitable organizations to either adopt a set of policies prescribed in the rules or publicly disclose their board-approved conflicts of interest, whether they have allowed insiders to approve their own compensation, all payments to board members by the charity, insider loans, and the like."

Rabbinic Court Challenges Israel's Supreme Court

In Israel today, the Jerusalem Post reports that another chapter has begun in the struggle between rabbinic courts and civil courts over the extent of their respective powers. Two months ago Israel's Supreme Court, rejecting a ruling of the High Rabbinic Court, ruled that a rabbinic court could not permit a husband in a divorce case to present a video of his wife's sexual exploits because it violated the wife's privacy rights. However now three judges on Netanya's regional rabbinic court have ruled that the video can be used to force the unfaithful wife to accept a writ of divorce (get). The rabbis held that under Jewish law, the husband is obligated to divorce his wife after viewing the content of the video even if the video was obtained illegally. In the past few months the rabbinic courts have launched an aggressive offensive after an April Supreme Court ruling curtailing rabbinic courts' jurisdiction over monetary matters.

Suit In Dominican Republic Challenges Concordat With Vatican

In the Dominican Republic today, representatives of the more than 1,600 evangelical churches rallied in front of the Dominican Supreme Court filed an appeal challenging the country's agreement with the Vatican-- known at the Concordat-- according to a report from Dominican Today. The suit claims that the Concordat conflicts with constitutional protection of freedom of conscience and religion. (Dominican Constitution.) The Concordat, signed in 1954, gives the Catholic Church special privileges not granted to other religious organizations, including the use of public funds to underwrite some church expenses and a waiver of customs duties when importing goods. (Background.)

Ohio Governor's Race Focuses On Christian Voters

Ohio's race for governor this year promises to be a battle between two candidates, Watch of whom is appealing strongly to Christian voters. The Associated Press reports this morning that Democratic candidate Ted Strickland, a former United Methodist minister, has just bought extensive advertising on Christian talk, gospel and other religious stations in communities around the state that have traditionally been the territory of his Republican opponent, Kenneth Blackwell who has been backed by the conservative Christian Ohio Restoration Project. (See prior posting.) In his new ad, Strickland quotes a passage from the Biblical book of Micah, that calls for people "to do justice, to love kindness and to walk humbly with our God." He says he has applied the principle throughout his life, and continues: "And now I am running for governor because most Ohioans know that we are not doing as well as we should. Ohio is in desperate need of new leadership and the same biblical principles which have guided and instructed me in the past will continue to sustain me as I serve as Ohio's next governor."

After the Blackwell campaign accused Strickland of having a record of voting against issues that are important to Christian conservatives, Strickland's campaign spokesman said that Strickland opposes using religion "to divide Ohioans against one another".

7th Circuit Orders Preliminary Injunction: SIU Must Recognize Christian Legal Society

Yesterday in a 2-1 decision, the U.S. 7th Circuit Court of Appeals decided that the Christian Legal Society at Southern Illinois University School of Law should be granted a preliminary injunction requiring the Law School to recognize it as an official student organization, despite the Law School 's claim that CLS violated the school's non-discrimination policy. Christian Legal Society v. Walker, (7th Cir., July 10, 2006), is one of a series of cases that has been filed around the country challenging attempts by public law schools to deny recognition to CLS chapters that insist their members and officers abide by a statement of Christian faith that includes rejecting sexual activity outside of heterosexual marriage. The CLS requirement excludes from voting membership both (1) non-Christians and (2) active gays and lesbians. The challenge at SIU focused primarily on exclusion of gays and lesbians.

The majority opinion said that CLS had demonstrated a likelihood that it would succeed on the merits. First, it is unclear that CLS in fact violated the language of the University's non-discrimination policies. The EEO policy applies to the university itself, and the majority doubted that this encompassed student organizations. Second, the majority held that it is likely that CLS will succeed in showing that its right of expressive association has been unconstitutionally infringed. SIU's only interest appears to be in suppressing particular ideas expressed in CLS's statement of faith. Finally, the majority said it was likely that CLS could show that the University's policy has violated its free expression rights because the policy has been applied in a discriminatory manner. It appears that other student organizations that exclude members based on religious belief or gender have not been denied recognition.

Judge Wood's dissent argued that the trial court had not abused its discretion in denying CLS a preliminary injunction. He disagreed with the majority's conclusions about CLS's likelihood of success on the merits, emphasizing the lack of evidence on crucial issues at this stage of the proceedings. He concluded: "If CLS wanted to forbid membership to all African-Americans, or to mixed-race wedded couples, or to persons of Arabic heritage, surely SIU would be entitled at a minimum to say that [it]... would have to sustain itself without any state support-- even if it could root such a membership policy in a religious text..... [T]he indirect impact of ... recognition of a student group maintaining such a policy is that SIU ... may be seen as tolerating such discrimination. Given that universities have a compelling interest in obtaining diverse student bodies, requiring a university to include exclusionary groups might undermine their ability to attain such diversity."

An AP story in the Washington Post discusses the decision. Jeremy Richey's Blawg has links to all the briefs that were filed in the case and to recordings of oral arguments. The 7th Circuit had previously granted CLS an injunction to reinstate it as a recognized group while the appeal was being argued. [Thanks to Ted Olsen at Christianity Today, and to Rory Gray for leads.]

Pakistan's Hudood Ordinance Amended

Last Friday, Pakistan's President signed an amendment to the Hudood Ordinance that had been enacted by religious conservatives under the military dictatorship of General Muhammad Zia-ul-Haq, supposedly to bring Pakistani law into conformity with the Quran. IRIN News, reporting on the amendment, says that the Hudood Law permits women to be sentenced to death for having sex outside marriage. It did not allow for women to be released on bail and specified a mandatory prison sentence at a minimum for violations. The amendment signed Friday allows women to be released on bail instead of serving their prison time, and the government immediately began releasing some of the 6500 women in jail under the law. The government said it would provide legal and financial assistance to help rehabilitate them. Pakistan’s Minister for Women’s Affairs, Sumaira Malik, called the ordinance "un-Islamic", and President Musharif said that he wants to the Ordinance to be totally repealed.

New York Has First Hasidic Police Recruit

Today, the New York City Police Academy has its first Hasidic Jewish police recruit. The New York Post reports that Joel Witriol, a 24-year-old Talmud scholar from Brooklyn, starts his training today. The Police Department has accommodated his religious needs by granting Witriol an exemption from its hairstyle rules so he can keep his beard and his peyot, and it will excuse him from working on the Jewish Sabbath and holidays. When Witriol graduates, he will be only the third Hasidic police officer in the country.

New York City Aids Private Religious Schools

Under state law, New York City must provide the same transportation for parochial school students as it gives to public school students (NY Educ. Law Sec. 3635). The New York Sun today reports that New York City Council has allocated $1 million out of this year's $15 billion school budget so Jewish day schools can buy their own busses to accommodate their longer school day. The city is routing the funds to schools through Agudath Israel of America. Last year, the city spent $2.5 million to put computers in Jewish and Catholic schools. And the city's Industrial Development Agency has made tax-exempt bonds available for financing construction at some local private and parochial schools. Critics, citing the chronically underfunded public school system, call the grants to religious schools "pork barrel" spending-- probably not the best choice of terms for the grants to Orthodox Jewish institutions. About a half million students in New York City attend private and parochial schools. Religious schools say they are saving the state money by keeping children out of the public school system.

Strict Sharia Being Introduced In Somalian Courts

In Somalia, Sheikh Hassan Dahir Aweys, the new leader of the Council of the Islamic Courts that has taken control in Mogadishu says that all of Somalia must be governed by Sharia (Islamic law). Reuters South Africa today quotes Aweys as saying, "I want the world to respect our sharia and beliefs and cooperate with us and also recognize our administrations and humanity. They should work with us as free people who have a right to choose their own future and religion." Meanwhile, in contrast to the moderate form of Islam that has been prevalent in Somalia, courts are now beginning to apply strict sharia. Whipping has been imposed as a criminal sentence and Islamic courts announced plans to stone five rapists to death.
A leading Mogadishu cleric has said that Muslims who do not pray five times a day should be killed.

Alliance Defense Fund Profiled

Today's Washington Post profiles the Alliance Defense Fund and its work in fighting to give religion a place in public life. The Arizona-based conservative Christian organization has an annual budget of $20 million. One of ADF's founders, D. James Kennedy, says, "What we are really trying to protect are the things this country was founded on." However critics, like Americans United executive director Barry Lynn argues: "They're not for some form of generic religious freedom. They're for Christian superiority, that Christians take over the courts. They are living in this fantasy world where the majority religion, Christianity, is claimed to be literally under attack." Gary S. McCaleb, ADF's director of litigation, says that the group is involved in 80 to 100 open cases at any one time, and files one to two new cases each week. Last November, an AP article in the Post similarly profiled the group.

Recent Publications of Interest

From NELLCO LSR:

Catharine P. Wells, Who Owns the Local Church? A Pressing Issue for Dioceses in Bankruptcy, (forthcoming in Seton Hall Legislative Journal v. 29, no.2 (2005)).

From SSRN:

R.L. Eisgruber & D. Mariah Riah Zeisberg, Religious Freedom in Canada and the United States, (International Journal of Constitutional Law, Vol. 4, Issue 2, pp. 244-268, 2006).

From SmartCILP:

Symposium: Borrowing the Land: Cultures of Ownership in the Western Landscape, 83 Denver University Law Review 943-1093 (2006).

Symposium: Catholics and the Death Penalty: Lawyers, Jurors & Judges, 44 Journal of Catholic Legal Studies 277-378 (2005).

FLDS Member Convicted On Sex Charges In Polygamous Marriage

Today's Salt Lake Tribune says that last week's conviction of Kelly Fischer on two sex-crime charges related to his "spiritual" polygamous marriage to a 16-year-old girl may provide a blueprint for bringing similar charges against other members of the FLDS Church, including its leader, Warren Jeffs, if he is ever found. In Fischer's case, a conviction was obtained even though there was no testimony from the victim or eye witnesses. Charges against 7 additional men are pending. Mohave County Attorney Matt Smith says his objective is to send a message to FLDS members that it is unacceptable for older men to have sex with girls under 18, and that religious belief is no shield for that behavior.

July Trial In Marijuana Charges Against Church of Cognizance Founders

Today's Arizona Daily Star reports that the federal court trial of a couple charged with possessing 172 pounds of marijuana that they claim is for religious use is scheduled to begin July 18 in Las Cruces, New Mexico. A revised complaint adds charges of conspiracy to distribute marijuana, and includes two more defendants. The couple, Dan and Mary Quaintance, are founders of the Church of Cognizance, whose members eat or drink marijuana daily as a way of becoming more spiritually enlightened. The Church says it has 72 monasteries around the country in members' homes. Its motto is: "With good thoughts, good words and good deeds, we honor marijuana; as the teacher, the provider, the protector."

The Quaintances are relying on the U.S. Supreme Court's decision earlier this year in the UDV case to support their free exercise claims. However Charles Haynes, a senior scholar at the First Amendment Center, says the federal government is in a stronger position to win against the religious use of marijuana than it was for the hallucinogenic tea involved in UDV because of the prevalence of marijuana and the federal government's concern about a marijuana drug problem.