Muslim Prisoner Denied Right To Wear Beard

In Gooden v. Grain, 2005 U.S. Dist. LEXIS 32960 (ED Tex., Dec. 13, 2005), a Texas federal district court rejected the RLUIPA and equal protection claims of a Muslim prisoner who was prevented by the Texas prison system's grooming policy from growing a quarter-inch beard. The court held that the grooming policy did not not impose a substantial burden on the prisoner's practice of his religion. Alternatively, even if it did impose a substantial burden, it furthers the compelling governmental interest of security and does so by the least restrictive means. Finally the court found that the policy applied equally to all religious groups and was not adopted with the intent to discriminate against Muslims.

EU Says Spain Must End VAT Tax Exemption For Catholic Church

On Friday, the Commission of the European Union formally requested that Spain bring its tax arrangements with the Vatican in line with EU law. (EU Release.) It told Spain that EU tax law is violated by a 1979 agreement providing the Catholic Church an exemption from Spain's value added tax on the purchase of goods. Reporting on the development, Ireland Online pointed out that the EU did give Spain an alternative. Spain can charge the tax and then reimburse the Church for some or all of the tax that it has to pay.

Americans United Opposes Alito Nomination

On Friday, Americans United for Separation of Church and State issued a 22 page report opposing confirmation of Supreme court nominee Samuel A. Alito. (AU press release.) The report concluded:

Judge Alito has on occasion been solicitous of free exercise rights — at least for non-prisoners. On the other hand, he has given broad license to religious majorities to use the public schools and other official settings to broadcast their religious messages without regard for the competing rights and interests of religious minorities.... Both the straightforward holdings and the underlying tenor of Judge Alito’s decisions in Establishment Clause cases contrast sharply with Justice O’Connor’s views. Throughout her career on the Court, Justice O’Connor has been keenly attuned to the plight of religious minorities in society as a whole, and most especially in the public schools. But Judge Alito’s focus has been elsewhere: on religious majorities’ ability to express their views through governmental instrumentalities, at government owned facilities, and in government-organized enterprises like the public schools.

Helsinki Commission on Religious Freedom In Uzbekistan and Turkmenistan

On Dec. 14, the U.S. Helsinki Commission held a formal briefing at the Rayburn House Office Building on Religious Freedom in Uzbekistan and Turkmenistan. An unofficial transcript of the briefing is available online. Covering the briefing, the Christian Post on Friday reported that the two countries criminalize unregistered religious activity while registering few groups that apply.

Muslims Seek Advance Relief To Prevent Border Searches

Seeking to avoid a repeat of problems they faced last year (see prior postings 1, 2 ), a group of Muslim-Americans, represented by the New York Civil Liberties Union, asked a federal judge Thursday to allow them to travel to and return from a religious conference in Toronto later this month without being fingerprinted, photographed and held for hours at the border. The Associated Press reported yesterday that the plaintiffs are seeking a court order prohibiting border agents from stopping and searching Muslim-Americans based solely on their attendance at the annual Reviving the Islamic Spirit conference in Toronto. Homeland Security officials acknowledged subjecting those returning from last year's conference to lengthy security checks, but said they had reason to believe that people associated with terrorism planned to attend the conference. Judge William Skretny said he would rule on the request before the December 23 start of the conference.

Student Can Give Classmates Candy Canes With Jesus Story Attached

In Mansfield, Texas Thursday, Jaren Burch, a fourth grader who was at first told that he could not hand out candy canes with a story of their connection to Jesus attached at his class' party, was able to do so. Today's Fort Worth Star-Telegram reports that the reversal by school officials came after the Liberty Legal Institute sent a letter to the school demanding that the student's first amendment rights be respected. A school district spokesman said that the teacher had gone a bit too far in trying to be sensitive to students with different backgrounds at this time of year. The student's father, Jason Burch said, "I'm sick and tired of people trying to pretend that Christmas is not about Christ. There wouldn't be a Christmas without Christ. It goes against my son's First Amendment right. If a Muslim student brought something, I would not have a problem. If it was something I didn't agree with, then I would simply throw it away."

By the way, Snopes.com says the claim that candy canes originated to represent the letter "J" and the purity and blood of Christ is a false urban legend. However, it says, candy canes do have a Christmas connection. A choirmaster in Cologne Cathedral in 1670 persuaded craftsmen to make sticks of candy bent at the end to represent shepherds' crooks so he could hand them out to restless youngsters who were attending ceremonies around a living creche.

Indiana Legislative Prayer Case Being Appealed

Yesterday the Associated Press reported that Indiana House Speaker Brian Bosma is asking a federal judge to reconsider a decision prohibiting sectarian prayer in the Indiana House of Representatives. (See prior posting.) Indiana Attorney General Steve Carter filed a motion in federal district court in Indianapolis asking Judge David Hamilton to reconsider his recent opinion that found explicitly Christian invocations to be unconstitutional. The motion also asked the judge to stay his ruling pending the requested reconsideration. At the same time, the state filed formal notice of appeal in the case to the 7th Circuit Court of Appeals.

11th Circuit Hard On Evolution-Sticker Appellants In Oral Arguments

A panel of federal appellate judges were particularly harsh during oral arguments in the 11th Circuit yesterday as they heard an appeal of a district court case that held unconstitutional the placing of evolution disclaimer stickers on biology textbooks in Cobb County, Georgia. The Atlanta Journal Constitution reports that Judge Ed Carnes dominated much of the 40-minute arguments by tearing apart sections of district Judge Clarence Cooper's January ruling. At the end of the arguments, Carnes took the highly unusual step of calling Atlanta lawyer Jeffrey Bramlett, who argued on behalf of five parents who sued the school board, back up to the podium and suggested he may have mislead the Court of Appeals in his legal brief filed with the court. The other judges on the panel were also critical of the lower court opinion. Judge Bill Pryor said that Cooper relied on facts that "are just contradicted by the record." Some of the debate turned on the relationship in time of the school board's decision to adopt the stickers and a petition from 2,300 individuals complaining about the district's science textbooks.

Anti-Conversion Bill To Be Introduced In Indian State

BosNewsLife reported yesterday that the government of India's eastern state of Jharkhand says it is introducing an anti-conversion law "to protect the culture and identity" of "tribal people", despite opposition from Christian groups. Nearly one-third of Jharkhand's predominantly Hindu population still belongs to tribal groups, each with its own customs and language. The proposed law will likely require government approval to change one's religion or to perform a ceremony of conversion. Jharkhand's only Christian cabinet minister, Enos Ekka, said, "I do not feel it is appropriate to introduce such a bill. In a secular country like India everyone has the right to live on the call of his conscience."

Utah Judge Issues Opinion On FLDS Trust

Yesterday's Deseret Morning News reports that Utah Third District Judge Denise Lindberg issued a 30-page ruling Wednesday that essentially eliminates any religious influence over the assets of a trust that emerged from the FLDS church, a secretive polygamous sect. The judge's decision lays the groundwork for the trust to operate independently. The decision provided that new trustees will not be subject to any particular religious authority; that if the trust is ever terminated, its assets will not go to the FLDS Church but will be used for the benefit of people who contributed the property; and that any reformation of the trust should be done in such a way that trust assets are not used for illegal purposes such as polygamy. Also in her decision, Lindberg appointed a board of advisers to help Bruce Wissan, the current count-appointed special fiduciary who is temporarily managing the trust. (See prior related posting.)

Reluctant Judge Upholds Prisoner's RLUIPA Claim

Last week, in a case that has been in the courts for five years, a Michigan federal district court sustained a prisoner' claim for injunctive relief under the Religious Land Use and Institutionalized Person's Act, while expressing strong disagreement with Congress' decision to enact the statute. Johnson v. Martin, 2005 U.S. Dist. LEXIS 32278 (WD Mich., Dec. 7, 2005), involved the Michigan Department of Corrections' classification of the Melanic Islamic Palace of the Rising Sun as a security threat group. This resulted in prison officials taking from prisoners all Melanic literature and materials. Plaintiffs contend , however, that Melanic Literature is essential to practicing their religion.

While rejecting plaintiffs' First Amendment free exercise claim, the court found that RLUIPA imposes a heavier burden on the government. Finding that a total ban on Melanic Literature is not the least restrictive means available to assure prison security, the court held that RLUIPA had been violated. But the court's unhappiness with RLUIPA was clear, as it said:

Congress has taken the Supreme Court's fears in Turner [v. Safley] and made them a reality. Courts are now "the primary arbiters of what constitutes the best solution to every administrative problem," as RLUIPA "'unnecessarily perpetuate[s] the involvement of the federal courts in affairs of prison administration.'"... RLUIPA obligates this Court to cast aside its doubts about the dubious role it will play in prison administration, and therefore, this [Court will] enjoin MDOC from totally banning Melanic Literature from its institutions.

Clergy Litigation Scholar Nominated To Bench

The President yesterday nominated University of St. Thomas Law Professor Patrick J. Schlitz to be United States District Judge for the District of Minnesota. The Associated Press reports that Schlitz has represented religious organizations in more than 500 clergy sex abuse cases. In 2003, Schlitz published an article in Boston College Law Review titled The Impact of Clergy Sexual Misconduct Litigation on Religious Liberty.

2005 Report on Legal Developments Affecting Faith-Based Initiative Released

The Roundtable on Religion and Social Welfare Policy has just released a 118-page study, The State of the Law 2005: Legal Developments Affecting Partnerships Between Government and Faith-Based Organizations. Written by George Washington University Law Professors Ira C. Lupu and Robert W. Tuttle, this is the Roundtable's fourth Annual Report on the law governing the Faith-Based and Community Initiative. This year's report is divided into four parts: (1) Changes In the Composition of the Supreme Court-- Significance for Government Partnership With Faith-Based Organizations; (2) Gulf Coast Hurricanes and the Special Problems of Emergency Responses; (3) Judicial Developments Affecting Government Partnerships With Faith-Based Organizations; and (4) Federal-State Relations and public Partnerships With Faith-Based Organizations.

New Jersey Removes Charitable Immunity In Sexual Assault Claims

New Jersey is one of only three states that grant charitable immunity from law suits to nonprofits that are sued by one of their beneficiaries. Yesterday's Jersey Journal reports that this is now about to change. The New Jersey Assembly has passed, and sent to the governor for his signature, S.540 . The bill removes immunity in claims against charities, including churches and religious nonprofits, for negligent hiring, supervision or retention of any employee where that results in a sexual offense being committed against a minor who was being served by the charity. [Thanks to Steven H. Sholk for the lead.]

Belarus Authorities Seek Political Support By Exempting Churches From Tax

Forum18 reports today that in Belarus, as the 2006 presidential elections approach, authorities are seeking support of religious organizations by exempting their property from tax. A December 1 decree signed by President Aleksandr Lukashenko exempts land occupied by houses of worship, "including diocesan offices, monastic complexes and theological schools." 3,025 named groups benefit from the exemption. However, many - predominantly Protestant - organizations still cannot obtain houses of worship, and some continue to be fined or warned for worshipping in private homes. A new amendment to the Criminal Code allows a 2 year prison sentence for participating in unregistered or liquidated religious organizations.

New York Health Department Warns of Danger In Disputed Circumcision Procedure

The Dec. 16, issue of the Jewish Week reports that New York City's Health Commissioner has issued an unprecedented public warning about a controversial circumcision procedure after a breakdown in an agreement the Department had with a Jewish religious court in Brooklyn. (See prior posting.) Health Commissioner Dr. Thomas Frieden wrote "An Open Letter to the Jewish Community", saying: "there exists no reasonable doubt that metzitzah b'peh can and has caused neonatal herpes infection." Herpes can be fatal in newborns. The letter says that "the Health Department recommends that infants being circumcised not undergo metzitzah b'peh." The Health Department has also developed a Fact Sheet for parents, available in English online, and soon to become available in Yiddish and Hebrew. While the Health Department considered regulating the controversialal procedure, or requiring informed consent be obtained by Mohels using it, ultimately it opted for an educational effort.

Rabbi Moshe Tendler, a dean at Yeshiva University’s rabbinic school who is an expert in Jewish medical ethics with a doctorate in microbiology, has long opposed metzitzah b'peh as medically dangerous and unnecessary under Jewish law. However Rabbi Levi Heber, a mohel from the Lubavitch community where the procedure is often used, objected to the Health Department's initiative. "The concept of non-Jewish authorities trying to influence certain behaviors should not be accepted by anyone," he said. "You never know where it could lead."

Churches Attacked In New South Wales

Beginning last Sunday, as reported by the Guardian, violence broke out around Sydney, Australia between groups of white youths and members of the Muslim community. Today, The Australian reports that the riots have moved from race to religion. A community hall attached to a church was burned to the ground, carol-singers were spat on, and church buildings were hit with gunfire. In response, members of the Arab Christian and Arab Muslim communities have called for a week-end curfew for all Lebanese youths. Some have suggested that the violence against churches was an attempt to "shame" the city's Lebanese Christian community into supporting Lebanese Muslims in the racial conflict that began as a battle over use of suburban beaches. ABC news reports that in response to all of this, the New South Wales Parliament has been called into special session to enact laws giving police broad powers to deal with the situation.

Religious Activists Protesting Social Service Cuts Arrested At Capitol

Today at the Cannon House Office Building, U.S. Capitol Police arrested 115 liberal religious activists who were part of a peaceful sit-in protesting a Republican budget bill that would cut $42 billion over five years from a range of federal programs, including health care for the poor and elderly and possibly child care, student loans and food stamps. Reuters today reported on the developments and indicated that also local prayer vigils were being planned for today in 32 states by "Call to Renewal," a network of churches and other religious organizations. UPDATE: An article syndicated by the Chicago Tribune reports on remarks at the rally by Christian activist, Rev. Jim Wallis.

Meanwhile, this morning the Washington Post ran an article asking: "Why in recent years have conservative Christians asserted their influence on efforts to relieve Third World debt, AIDS in Africa, strife in Sudan and international sex trafficking -- but remained on the sidelines while liberal Christians protest domestic spending cuts?" Conservative religious leaders answer that by arguing that it is a matter of priorities, saying their primary attention is focused on issues of abortion, same-sex marriage and seating judges who will back their position against those practices. Others, such as Tony Perkins, president of the conservative Family Research Council, focus on the responsibility of the private sector: "There is a [biblical] mandate to take care of the poor. There is no dispute of that fact," he said. "But it does not say government should do it. That's a shifting of responsibility."

9th Circuit Rejects Religious Objections To Returning Hawaiian Artifacts

On Monday, in Na Lei Alii Kawananakoa v. Hui Malama I Na Kupuna O Hawai'i Nei, the U.S. Ninth Circuit Court of Appeals upheld an earlier district court ruling involving a dispute between competing native Hawaiian groups over valuable burial artifacts. (See prior posting.) Both the Honolulu Star Bulletin and the Honolulu Advertiser report on the case which involves alleged violations of the Native American Graves Protection and Repatriation Act. In a brief opinion, the appeals court upheld the lower court's preliminary injunction ordering Hui Malama, a Native Hawaiian group, to return 83 valuable burial objects to the Bishop Museum so 13 other claimants can help decide their final resting place.

The disputed objects were reburied in their original resting place at Kawaihae (Forbes) cave five years ago after they were loaned by the Museum to Hui Malama. Hui Malama now argues that reopening the cave would be a desecration that violates their religious beliefs. They also argue that the cave would collapse if opened. A settlement, however, may be in sight. Alan Murakami, an attorney with the Native Hawaiian Legal Corp. which is representing Hui Malama, said that Hui Malama is "on the verge" of getting a majority of the original 13 claimants to the artifacts to agree that leaving the items in the cave is the preferred course of action.

UPDATE: The Dec. 16 Honolulu Advertiser reports that Hui Malama has told the court that it will disclose the location of the artifacts in question, but it would like that disclosure sealed from the public.

Court Refuses To Adjudicate Church Governance Dispute

In Alexander v. Allen, (Dec. 13, 2005), a Texas Court of Appeals refused on First Amendment grounds to step into a dispute between the pastor and the board of the Christ Temple Apostolic Church. The church's pastor, David Allen, Sr., attempted to unilaterally replace board members, change the lock on the church doors and change authorized signers on the church's bank account. He relied in part on a provision in the church's bylaws provided that a member who fails to show a cooperative attitude toward the pastor and the church program shall not be eligible to hold any church office. The court held that the dispute was an ecclesiastical one, and therefore beyond the court's jurisdiction.