Two More Prisoner Free Exercise Cases

In Durham v. Department of Corrections, 2005 U.S. Dist. LEXIS 21436 (ED Pa., Sept. 28, 2005), a Pennsylvania federal trial court held that a prisoner’s First Amendment religion claim growing out of a search of his cell should be dismissed. The officers searching the cell tore down portraits of Elijah Mohammad and Rev. Louis Farrakahn and made disparaging comments about the religion of Islam. The court found that the portraits were not central to the plaintiff’s religious worship, and tearing them down had no substantial impact.

In Shaheed-Muhammad v. Dipaolo, 2005 U.S. Dist. LEXIS 21539 (D. Mass, Sept. 28, 2005), plaintiff alleged violations of state and federal religious freedom protections when prison officials, confiscated a religious medallion, failed to provide him with vegetarian meals in accordance with his religious practices; denied him access to The Five Percenter, a newspaper published by the Nation of Islam; and transferred him to another facility in retaliation for asserting his religious freedoms. The court rejected the retaliatory transfer claims, but allowed his other claims to move forward on at least some of the grounds which plaintiff had asserted.

House of Representatives Recognizes Religious Concerns

On Thursday, the U.S. House of Representatives covered all of its religious bases. It agreed to take off on Tuesday and Wednesday for Rosh Hashanah. It passed House Concurrent Resolution 245 "Expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States". Also Representative Eddie Johnson introduced House Resolution 472 "Recognizing the commencement of Ramadan, the Islamic holy month of fasting and spiritual renewal, and commending Muslims in the United States and throughout the world for their faith".

Eritrea Sanctioned, Saudis Given More Time On Religious Freedom

Last week, according to the Associated Press, the State Department notified Congress that Secretary of State Condeleeza Rice had banned commercial export of certain defense articles to Eritrea because of its poor record on religious freedom. This is the first time that sanctions have been imposed under the International Religious Freedom Act. The African country was classified a year ago along with Saudi Arabia and Vietnam as a "country of particular concern" because of its religious freedom record. (See prior posting). However, the State Department also authorized a 180-day waiver of action against Saudi Arabia, "in order to allow additional time for the continuation of discussions leading to progress on important religious freedom issues." The U.S. Commission on International Religious Freedom urged the State Department to continue to press the Saudis.

Osaka Court Goes Other Way; PM's Shrine Visit Unconstitutional

Contradicting a ruling by a Tokyo court the day before (see prior posting), on Friday, according to the Associated Press, the High Court in Osaka, Japan ruled that Prime Minister Junichiro Koizumi's 2004 visits to a Tokyo war shrine violated the constitution's required separation of religion and state. In contrast to the Tokyo court ruling, this court held that the prime minister's act was a public act, not a private one. However, the court rejected the Taiwanese plaintiffs' demands for damages of $88 each.

New Publications

The September issue of Law and Society Review (Vol. 39, pp. 677-722) has published a series of articles under the caption Forum: Lloyd Burton's Worship and Wilderness: Culture, Religion, and Law in Public Lands Management. Among the articles in it are William Blatt, Holy River and Magic Mountain: Public Lands Management and the Rediscovery of the "Sacred in Nature", and Winnifred Sullivan, Advocating Religion on Public Lands: Native American Practice or Buddhist Sermon? [From SmartCILP].

Schools Face Various Church-State Issues This Year

While much of the country is focused on issues relating to the teaching of evolution in public schools, a number of other church-state issues top the agendas of various public schools around the country. Here are three examples:

In Raleigh, North Carolina, an activist Christian group has complained that an elementary school unconstitutionally promotes "New Age" beliefs through its stress-reduction class. Elementary school students were asked to do breathing exercises, chant and use their "life forces". The Sacramento Bee reports on the dispute. The organization promoting the classes, Rites of Passage Youth Empowerment Foundation, says it is not involved in religion; it merely enhances students' learning practices.

In Anna, Illinois, a local pastor is collecting signatures to urge the city's junior high school to put back up a painting of The Last Supper and two portraits of Jesus that the school took down earlier this school year. The Southern yesterday reported that the pictures were removed after Americans United For Separation of Church and State threatened to sue. Now the Alliance Defense fund threatens to sue if the school does not return the pictures to its hallway.

And in Kirkland, Washington, Lake Washington High School has its plate full of church-state issues. The Stranger reports that Antioch Bible Church, a conservative anti-gay congregation, rents the school's gym every Sunday to use for religious services. The school district's sex education program is supplemented by an abstinence presentation from a group called SHARE—an affiliate of the religiously based group Life Choices. The SHARE lecture is taught by volunteers, some of whom are recruited from Antioch Bible Church. Then last June, students in the pre-school program that is affiliated with the high school all received a copy of "10 commandments" at their graduation-- not the traditional ones, but still ones that were religious. They instructed parents to "please take me to church regularly" and to realize their kids are "a special gift from God."

Bush Urged To Overrule FAA On Cemetery Seizure

Two dozen religious and civil rights groups yesterday wrote President Bush urging him to respect the Religious Freedom Restoration Act and prevent federal approval for an airport expansion plan at Chicago's O'Hare which would destroy St. Johannes, an active religious cemetery. The letter read in part:

FAA stands poised to grant final approval and federal funds to an airport plan that would dig up the graves at St. Johannes, despite the availability of feasible options that would address flight delays at O’Hare and save the cemetery. Most upsetting, the FAA is about to do this despite its concession that the desecration of St. Johannes would substantially burden the religious exercise of the Church and those who have family and friends buried in St. Johannes’ sacred ground. In other words, the FAA has admitted that its actions establish a prima facie violation of the Church’s rights under RFRA, but insists that reducing flight delays justifies this burden.

The Becket Fund which represents the cemetery and the church that operates it issued a release yesterday on the controversy. The Illinois legislature has already enacted the O'Hare Modernization Act, excluding the cemetery from state law that protects other cemeteries from seizure.

Japan Prime Minister Did Not Violate Constitution In Shrine Visit

Reuters yesterday reported that in Japan, a Tokyo appellate court has upheld the dismissal of a suit against Prime Minister Junichiro Koizumi challenging his visits to a war shrine. The plaintiffs had argued that the visits to the Shinto shrine violated Japan's constitutional separation of religion and the state. The court ruled, however, that his visits were private acts.

Groups Urge USCIRF To Designate Turkmenistan

A coalition of non-governmental organizations on Wednesday wrote Secretary of State Condoleezza Rice, asking her to designate Turkmenistan as a "country of particular concern" this year under the International Religious Freedom Act of 1998. The full text of the letter has been published by Human Rights Watch. The groups contend: "The state no longer simply controls religion; it is actively trying to eliminate even state-controlled religions in order to establish a new religion based on the personality of the president." Turkmenistan is already on the Watch List of the U.S. Commission on International Religious Freedom.

North Carolina Moves To Dismiss ACLU's Oath Case On Standing Grounds

In North Carolina, the ACLU has sued to challenge state court policies that only permit use the King James version of the Bible in administering oaths. The courts do not allow other holy texts, such as the Quran, to be used instead. (See prior posting). Today's Winston-Salem Journal reports on a motion to dismiss on standing grounds that has recently been filed by the state. The suit was filed on behalf of the ACLU's 8,000 members statewide, some of whom are Muslims and Jews who would prefer to use religious texts other than the Christian Bible for courtroom oaths. The state, however, has moved to dismiss the suit because no named plaintiff has in fact been denied the opportunity to take an oath on a non-Christian book.

Moving Demonstrators From Church Does Not Endorse Religion

A Kentucky federal district court has rejected an Establishment Clause challenge by animal rights protesters who were forced to move the location of their picketing. In Friedrich v. Southeast Christian Church of Jefferson County, 2005 U.S. Dist. LEXIS 21218 (WD Ky., Sept. 22, 2005), activists associated with People for the Ethical Treatment of Animals attempted to demonstrate in front of a Louisville, Kentucky church on Christmas eve. Executives of the parent company that owned Kentucky Fried Chicken belonged to the church; demonstrators wished to encourage KFC to treat chickens more humanely. Police required demonstrators to move across the street. The demonstrators sued the Louisville police and the church, alleging numerous causes of action. In dismissing their Establishment Clause claim, the court held that the city did not endorse religion merely by moving the demonstrators away from the church on Christmas eve. It also dismissed civil rights claims against the church, finding that it was not a state actor.

China Limits Religious Speech On the Internet

According to a Sept. 26 press release from Reporters Without Borders, Chinese authorities have published new rules limiting postings by bloggers and website managers. The new edict, issued by the State Council Information Bureau and the Ministry of Industry and Information, brings together in one place a number of prior edicts, and adds some new prohibitions as well. The Beijing News has reported that there are 11 topics that are off limits for Internet transmission. One of those topics is any message that violates national policies on religion, or that promotes the propaganda of sects and superstition. The latter references are presumably to the Falungong movement, thirty of whose members are already in Chinese jails for posting news on the Internet.

Law Favoring Churches Teaching Family Values Questioned

According to today's San Diego Tribune, the mayor of Chula Vista, California is uncomfortable with a 14-year old city ordinance that was designed to set aside affordable land for churches, social service centers, day care facilities and small parks in the city's new eastern neighborhoods. Developments of over 50 acres must set aside land for "community purpose facilities", defined in part as churches that teach "traditional family values". In the 1980's, when the ordinance was enacted, the city was battling, for example, with a sex club owner who claimed his facility was a church. At the mayor's request, the city attorney's office is looking at removing the language referring to traditional family values.

Another Challenge To A Cross On City Property

There seems to be a rash of cases lately raising Establishment Clause challenges to crosses on public property. (See prior postings 1, 2). Jacksonville, Florida's WAWS Fox30 reported yesterday on yet another such lawsuit. In Starke, Florida, a cross has been on top of the city's water tower for over 20 years. Now Lon Bevell, an atheist, along with American Atheists, Inc., is suing the city claiming that the cross is unconstitutional. He says that when he complained to the city about the cross, one official told him it was not a cross, but was the letter "T".

Lot Size Requirement Only For Churches Violates RLUIPA

In Victory Family Life Church v. Douglas County, (Sept. 20, 2005), a Georgia trial court found that the Religious Land Use and Institutionalized Persons Act was violated when the county insisted that churches must be built on lots of at least 3 acres in size. The county articulated no compelling interest for imposing this zoning requirement on religious institutions when it had no similar requirement for any other kind of institution. Alliance Defense Fund yesterday issued a release praising the decision.

Two Rastafarian Prisoner Cases Decided

In Williams v. Snyder (Sept. 26, 2005), the U.S. Seventh Circuit Court of Appeals held that the trial court had applied the wrong standard in dismissing as frivolous a Rastafarian prisoner's claim that requiring him to cut his dreadlocks in order to leave his cell violated his religious free exercise of rights. The trial court's balancing of interests is appropriate only in a motion for summary judgment after additional fact finding. It is not the standard to be used for screening on the pleadings alone.

In Clark v. Briley, 2005 U.S. Dist. LEXIS 21350 (ND Ill., Sept. 26, 2005), an Illinois federal district court held that forcing a Rastafarian prisoner to cut his dreadlocks was the least restrictive means of achieving prison safety and security. His hair could serve as a hiding place of weapons or drugs, a significant risk considering this prisoner's past history. Therefore the court rejected the prisoner's claims under the Religious Land Use and Institutionalized Persons Act and under the First Amendment and granted summary judgment to the defendants.

New Organization Will Counter Religious Right Online

Frederick Clarkson this week has an interesting posting on a new group formed to counter the religious right. Called DefCon, short for "Campaign to Defend the Constitution: Because the Religious Right is Wrong", the group is based in Washington, D.C. It will conduct an Internet campaign modeled on the successful strategy of MoveOn.org. DefCon's website says "We will fight for the separation of church and state, individual freedom, scientific progress, pluralism, and tolerance while respecting people of faith and their beliefs." Links to the webswite and the DefCon blog have been added to the sidebar list on Religion Clause.

Denominational Disputes Over Gay Clergy Are Moving To Civil Courts

Splits within Protestant denominations on the ordination of gay clergy are now finding their way into civil courts. In Ridgebury, New York, a small Presbyterian congregation is breaking away from the Presbyterian Church (USA) in protest of the denomination's willingness to ordain gays. The Church at Ridgebury however is trying to keep its church building and property in the process. The White Plains Journal News reported earlier this month that the church's regional body is now suing, claiming that under church rules (the Book of Order) all church property is held in trust for the denomination.

Similar disputes are racking the Episcopal Church. Last month (see prior posting), a breakaway Episcopal congregation in California was permitted to keep its church property as it broke away from the parent body in protest over its teachings on homosexuality. Now, according to an Associated Press report yesterday, a more far-ranging federal lawsuit has been filed in Connecticut. In it, six Episcopal parishes at the center of a dispute over gay clergy allege that their civil rights have been violated by Connecticut's bishop, the head of the U.S. Episcopal Church and others.

The priests of the six parishes that filed the lawsuit had asked to be supervised by a different bishop because they disagreed with their bishop's support for the ordination of the Episcopal Church's first openly gay bishop. Interestingly, the lawsuit also names Connecticut Attorney General Richard Blumenthal as a defendant. The suit claims that the state has entangled itself in the religious dispute because state law requires Episcopal parishes to operate under the rules of the Connecticut diocese. The full text of the 67-page complaint in the lawsuit is available online. It asks for an injunction to prevent the parent church from interfering with the dissident parishes, an ejectment order, a declaration that various state statutes relating to the Episcopal Church are unconstitutional, and damages.

School Says Musical Violates Spirit of Church-State Separation

In Old Washington, Ohio, the superintendent of schools has banned the Buckeye Trail High School drama club from presenting the play "Godspell". The superintendent claims that the play, which sets the Gospel of St. Matthew to modern music, violates the spirit of church-state separation. Today's Akron Beacon Journal reports that two teachers have resigned as advisors to the high school's Drama Club because this and another play involving violence were censored.

Prisoner Claims TB Testing Violates Religious Freedom

In Perry v. Levegood, 2005 U.S. Dist. LEXIS 20964 (ED Pa., Sept. 21, 2005), a prisoner alleged that his religious freedom rights were infringed when prison nurses forced him, without good reason, to take a tuberculosis immunization test. A Pennsylvania federal district court held that preventing the spread of TB is a legitimate penological interest, and that if the Department of Corrections' TB testing policy was reasonably related to that interest, it would survive a First Amendment challenge. However, the court allowed the plaintiff to move to additional discovery before determining whether the TB testing policy was applied correctly in this case. The court dismissed the prisoner's claim that the testing also violated the Universal Declaration of Human Rights.