Japanese Court Says Buddhist Pet Funerals Are Not Religious

In Japan today, the Nagoya High Court held that a Buddhist Temple's profits from religious-style funerals for pets are taxable. Japan Economic Newswire reports the court rejected the Temple's argument that at least pet cremation and sutra chanting are tax exempt as religious activities.

Drivers' License Photos Pose Religious Issues

Around the world, religious adherents are objecting to the requirement that their photo appear on their drivers' licenses.

In Canada, in the southern part of Alberta, the Hutterite settlement, the Wilson Colony, has filed suit to challenge the province's photo requirement that came into effect in 2003. Hutterites believe that the Second Commandment prohibits them from willingly having their picture taken. Yesterday BBC News reported that as licenses in the small religious colony come up for renewal, individuals are not renewing them. Now there are only 15 licensed drivers left. The colony's lawyer, Greg Senda, says the colony is worried what could happen to their large scale farming operation if no one can drive. After the suit was filed claiming a violation of religious freedom, residents were issued temporary licenses while the case is being litigated.

Meanwhile, in France, the Council of State, France's highest administrative body, ruled on Monday that Sikhs must remove their turbans for drivers license photos, calling it a question of public security and not a restriction on freedom of religion. In December, the Council of State had ruled in favor of Shingara Mann Singh, who refused on religious grounds to comply with the administrative order to take off his turban for his license photo. That decision said that the wrong ministry had issued the order. A day later the Transport Ministry, the correct ministry, took steps to adopt the required order. That sent the case back to the Council of State. The Hindu reports that yesterday the Council of State ruled against Singh's religious freedom claim.

Cert. Denied In Washburn Art Show Case

Yesterday, the U.S. Supreme Court denied certiorari in O'Connor v. Washburn University, (Docket No. 05-837) a 10th Circuit case in which the lower court rejected an Establishment Clause challenge to Washburn University's display of an allegedly anti-Catholic statue (titled "Holier than Thou") in its annual outdoor sculpture display. (See prior posting.) The Associated Press reported on the denial of cert.

Jail Canteen Funds To Churches Is Challenged

Last week, the Virginian Pilot reported that Virginia sheriffs have paid public monies to Christian groups that provide Christian Bible study and counseling in local jails. The sheriffs are donating proceeds from their jail canteens to the religious organizations. The largest payment was $45,650 contributed by the former Hampton County sheriff to Southeastern Correctional Ministry Inc. These revelations led the ACLU of Virginia last week to file a Freedom of Information Act request for records from 3 jails. (ACLU Release.) "Jails may accommodate the religious needs of inmates by funding chaplains’ services that offer assistance to all prisoners regardless of their faith," said ACLU of Virginia executive director Kent Willis, "but they cannot pay a Christian ministry to bring only the Christian message into their jails." Saturday's Hampton Roads Daily Press also reports on these developments. [Thanks to Alliance Alert for the information.]

Does Today's FAIR Decision Implicate Christian Student Group Cases?

Today in Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the U.S. Supreme Court unanimously upheld the Solomon Amendment (10 USC 983 (b)). That law denies federal funding to universities whose law schools exclude military recruiters because the military discriminates on the basis of sexual orientation. While not the main thrust of the case, the Court's opinion (by Chief Justice Roberts) does seem to have implications for the long-running dispute between a number of Christian student groups and universities over formal recognition of student groups that limit membership on the basis of religion or on the basis of sexual activities that violate "Biblical" norms. At issue is whether requiring law schools or universities to recognize groups that discriminate on the basis of religion infringes the school's right to take a stand against discrimination. The argument is based largely on a 2000 Supreme Court case, Boy Scouts v. Dale, that held that the Boy Scouts' freedom of expressive association was violated by New Jersey's public accommodations law which required the Scouts to accept homosexual scoutmasters.

In today's decision, the Court rejected this argument in the context of the Solomon Amendment. It said:

According to FAIR, law schools' ability to express their message that discrimination on the basis of sexual orientation is wrong is significantly affected by the presence of military recruiters on campus and the schools' obligation to assist them....

The Solomon Amendment, however, does not similarly affect a law school's associational rights. To comply with the statute, law schools must allow military recruiters on campus and assist them in whatever way the school chooses to assist other employers. Law schools therefore "associate" with military recruiters in the sense that they interact with them. But recruiters are not part of the law school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students-- not to become members of the school's expressive association. This distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does not force a law school "'to accept members it does not desire'".

This language might be read to suggest that placing a school's imprimatur on a student group by formally recognizing it does make it one of the "members of the school's expressive association", and forcing the school to recognize it would therefore unconstitutionally impair the school's associational rights.

Religious Freedom Issues In Bush's Pakistan Visit

In anticipation of President Bush's visit to Pakistan this past week end, Michael Cromartie , Chair of the U.S. Commission on International Religious Freedom ("USCIRF"), and Elizabeth H. Prodromou, a member of the Commission, on Friday published a call for the President to push Pakistan on issues of religious freedom. In their op ed piece in the Philadelphia Enquirer, also posted on USCIRF's website, they said that Bush should urge Pakistan President Pervez Musharraf to repeal unused laws that provide for punishments such as amputation and stoning in conformity with Islamic law; rescind laws that criminalize the public practice of the Ahmadi faith; decriminalize blasphemy; and act to prevent religious violence and punish its perpetrators.

At the leaders' joint news conference on Saturday, President Musharraf answered a question about his efforts to promote democracy in Pakistan. He spoke of promoting freedom of speech and press, and empowerment of women, but not of freedom of religion. Bush's news conference statement said that he had discussed the Muhammad cartoon controversy with Musharraf. Finally, in their Joint Statement issued on Saturday, the Presidents mentioned religious toleration, but not in a manner that directly addressed the concerns of USCIRF. The Statement said: "The two leaders recognize the need to promote tolerance, respect and mutual understanding, and inter-faith harmony to strengthen appreciation of the values and norms common to the world's religions and cultures. The two leaders acknowledge with appreciation the various international initiatives in this regard including President Musharraf's concept of Enlightened Moderation. The two leaders agreed that acts that disturb inter-faith harmony should be avoided."

Israeli Justice Jockeying To Write Opinion On "Who Is A Jew?"

The Israeli Supreme Court has pending before it a case raising the question of whether the government must recognize as Jews under the Law of Return individuals who have been converted in Israel by Reform and Conservative rabbis. (See prior posting.) Haaretz today reports that in an unusual move, Supreme Court President Aharon Barak is encouraging the parties to agree to consolidate the cases with other related cases that are further along so that Barak will be the one who can write the high court's ruling on the delicate "who is a Jew" issue before he retires in December. However, the Justice Ministry says that it cannot formulate its response until after the elections are held and a new government is formed.

RLUIPA Land Use Developments

Here are some recent developments in the application of RLUIPA in land use cases:

In City and County of Honolulu v. Sherman (Feb. 28, 2006), the Hawaii Supreme Court held that a Hawaii statute (R.O.H. Ch. 38) that permits the city and county to file eminent domain proceedings to convert properties from leaseholds to fee simple ownership is not subject to RLUIPA because the law is neither a zoning nor a landmarking law. Therefore it does not constitute a "land use regulation" as RLUIPA defines the term.

The Associated Press reports that on Friday, a federal district judge released an opinion holding that RLUIPA prevents the Village of Mamaroneck in New York from using its zoning laws to block construction of a new 44,000 square-foot building by the Westchester Jewish Day School. The zoning board had raised issues of traffic, parking, esthetics and property values in denying the application to build the school in Mamaroneck's upscale Orienta Point neighborhood. Judge William Conner said that the board's denial, in 2001, "was so contrary to the evidence and to the equities as to be arbitrary and capricious." However, the judge stayed his order pending an appeal to the U.S. Second Circuit Court of Appeals. The long history of the case is traced by this coverage of Friday's decision by the Westchester Journal News. UPDATE: The lengthy opinion is now available on LEXIS, Westchester Day School v. Village of Mamaroneck, 2006 U.S. Dist. LEXIS 9058 (SDNY, March 2, 2006).


A recently published article reviews RLUIPA land use developments: Edwin P. Voss, Jr. & Meredith A. Ladd, Recent Developments Under the Religious Land Use and Institutionalized Persons Act, 37 Urban Lawyer 449-466 (2005). [Thanks to SmartCILP]

American Legion Begins Campaign For Public Expression of Religion Act

WorldNetDaily reported yesterday that the American Legion has begun a campaign to get grass roots support for the proposed Public Expression of Religion Act ("PERA"), H.R. 2679. The bill would amend 42 USC Sec. 1983, the basic federal statute that authorizes suits for violation of civil rights by limiting relief for Establishment Clause violations to injunctions. Damages would no longer be available. It would also amend the Civil Rights Attorney Fees Act to preclude the award of attorneys' fees to plaintiffs bringing Establishment Clause claims. The bill, introduced by Rep, John Hostettler, R-Ind, currently has 40 co-sponsors.

Last week, the Legion released a booklet titled In The Footsteps Of The Founders – A Guide To Defending American Values, which gives background on PERA. The Legion is particularly focusing on suits against the BoyScoutss, and and attorneys' fees that have been awarded to ACLU lawyers. The booklet says: "There simply is no reasonable basis to support the profiteering in attorney fee awards ordered by judges in these cases. The very threat of such fees has made elected bodies, large and small, surrender to the ACLU's demands to secularly cleanse the public square."

Australia Keeps Church-State Status Quo

Last week the Australian Senate, by a vote of 50-7 rejected a bill that would have changed church-state relations in the country. The proposal by Democrat leader Lyn Allison would have ended parliamentary prayer, ended preferential tax treatment for religious groups and removed religious references from oaths required of public officials. Catholic World News, reporting on the development, quotes Prime Minister John Howard who agreed with the Senate's rejection of the bill, as saying: "What the separation of church and state means in this country is that there is no established church as the official state religion. It doesn't mean that we abandon our Judeo-Christian heritage."

Muslim Prisoner Has Initial RLUIPA Win

In Hammons v. Jones, 2006 U.S. Dist. LEXIS 7720 (ND Okl., Feb. 14, 2006), an Oklahoma federal district court held that under RLUIPA, a "substantial burden" on religious exercise occurs "when an individual is forced to significantly modify his or her religious behavior and violate his or her religious beliefs". It found that a change in a state prison’s policy that prevented Muslim inmates from receiving religious oils for use during prayers constituted a substantial burden on plaintiff prisoner’s free exercise rights, and ordered the state to introduce any evidence it had that the restriction was in furtherance of a compelling interest and was the least restrictive means available to vindicate that interest.

New York Attempts To Close Bars Too Near To Unknown Mosque

In 1982, in Larkin v. Grendel's Den, Inc., the U.S. Supreme Court struck down a Massachusetts liquor licensing law that gave churches (as well as schools) a veto power over the granting of liquor licenses to establishments located within 500 feet of church (or school) premises. The Massachusetts legislature had been concerned with "protecting schools and churches from the commotion associated with liquor outlets." While delegation of decison making to churches was a problem, the Court said that the "valid secular objectives [of the law] can be readily accomplished by other means - either through an absolute legislative ban on liquor outlets within reasonable prescribed distances from churches, schools, hospitals, and like institutions, or by ensuring a hearing for the views of affected institutions at licensing proceedings where, without question, such views would be entitled to substantial weight." Now, a controversy in New York City may test the limits of these holdings.

The Tribeca Trib this week reported that the New York State Liquor Authority has denied a license to one bar, and is threatening to close three others, because they are within 200 feet of Masjid al-Farah, a Sufi mosque. The problem, however, is that none of the bar owners knew that the mosque was there. Indeed some of the bars had been operating over 10 years without realizing the problem. The mosque's nondescript building has no signage on it indicating that it is a mosque. Moreover, mosque officials have no objection to the bars. The Liquor Authority asserted the violations of law after other neighbors objected to the noise and over-concentration of bars in the neighborhood. One bar owner has suggested a legal loophole-- he argues that Sufism is "more a philosophy" than a religion. The state's liquor law (Alcoholic Beverage Contol Law, Sec. 64) applies to establishments on the same street and within 200 feet of a building "occupied exclusively as a school, church, synagogue or other place of worship..."

Proposed Missouri Resolution Stirs Up Blogosphere

In the Missouri legislature, the House Rules Committee has recommended approval of House Concurrent Resolution 13 that declares:

we stand with the majority of our constituents and exercise the common sense that voluntary prayer in public schools and religious displays on public property are not a coalition of church and state, but rather the justified recognition of the positive role that Christianity has played in this great nation of ours, the United States of America.

One of the introductory "Whereas" clauses in the resolution declares, "our forefathers of this great nation of the United States recognized a Christian God and used the principles afforded to us by Him as the founding principles of our nation." The Resolution has been commented upon by more blogs than usual, in part because the first web posting about the resolution, by KMOV-TV, was headlined (inaccurately) "State Bill Proposes Christianity Be Missouri’s Official Religion".

Parliament May Remove Ban On Women As Bishops In Church of England

In Britain, the think-tank Ekklesia says that a bill will be introduced into Parliament later this month that would permit the Church of England to consecrate women as bishops. Labour MP Chris Bryant, who was formerly a curate in the Church of England, will introduce the amendment to the Priests (Ordination of Women) Measure 1993. That Act currently permits the ordination of women as priests, but not as bishops. Parliament cannot force the Church to consecrate women, but eliminating the current legal prohibition on such ordinations would show House of Commons approval of the idea. A month ago, the General Synod of the Church of England overwhelmingly backed consideration of a compromise plan that could see the ordination of women bishops by 2012.

County To Place "In God We Trust" On Court House

In Yadkin County, North Carolina last Thursday, the Board of Commissioners voted unanimously to put the National motto, "In God We Trust", on the north and west sides of the county courthouse. According to the Winston-Salem Journal, two people spoke against the move, but to no avail. After the vote, may of the 100 people present clapped and said "Amen". The U.S. Motto Action Committee will pay the $1500 cost of the display. David C. Gibbs Jr., founder of the Christian Law Association ("CLA"), has agreed to defend Yadkin County, without charge, against any lawsuits filed over the display of the motto. CLA's purpose is "to provide legal assistance to Bible-believing churches and Christians who are experiencing legal difficulty in practicing their religious faith because of governmental regulation, intrusion, or prohibition of one form or another," according to its Web site.

Plaintiff Claims Capital Punishment Tradition Parallels Biblical Episode

The Fayetteville Observer reports that a Raleigh, North Carolina judge has given the parties until Monday to file additional information in an unusual suit challenging North Carolina's death penalty. The suit, challenging capital punishment on various grounds, includes claims that the death penalty's administration violates Constitutional protections relating to religion. One of the more intriguing claims in the lawsuit focuses on the apparent tradition in the state of carrying out executions on Friday at 2 a.m., after giving the condemned prisoner a last meal on Thursday evening. Plaintiff Jim French says that custom is similar to the Biblical story of the death of Jesus, who held a Passover meal with his disciples on what Christians commemorate as Holy Thursday.

Furor Over Appointment To Illinois Anti-Discrimination Commission

In Illinois last August, Gov. Rod Blagojevich attempted to revive his Governor's Commission on Discrimination and Hate Crimes, originally created in 1999 to fight discrimination based on ethnicity, religion, skin color, gender, disability or sexual orientation. He appointed a new set of 26 commissioners. One of them was Sister Claudette Marie Muhammad, a member of the Nation of Islam. The Associated Press today reports on the problem that has created.

Even the Governor did not realize who Sister Muhammad was until last month, when she invited members of the Commission to attend a speech by Nation of Islam leader Louis Farrakhan who has often virulently attacked whites, Jews and gays. The invitation led two Jewish leaders on the Commission to resign in protest. Lonnie Nasatir, regional ADL director and Richard Hirschhaut, executive director of the Illinois Holocaust Museum and Education Center, resigned, saying that the Commission has been compromised by Muhammad's appointment. Now there are calls for Muhammad to disavow Farrakhan's remarks, but many black lawmakers say this is unfair when other members are not held responsible for everything their religious leaders say. Muhammad issued a statement Wednesday supporting "fairness to all people regardless of race, creed, color, national origin or religious beliefs."

Anti-Evolution Litigation Hits Russia

Islam Online yesterday reported that a 15-year old Russian student, Masha Shraiber, and her father are suing to require Russian state schools to teach Creationism along with Darwin's theory of evolution. The suit, seeking a rewrite of textbooks, argues that teaching only evolution violates the freedoms of religion and conscience protected by the Russian Constitution. Plaintiffs in the case are being supported by three lawyers representing the Russian Orthodox, Muslim and Jewish communities, all of which support the teaching of Creationism.

Judge's Order To Remove Bible Does Not Invalidate Conviction

In State v. Albertson (Feb. 28, 2006), a Minnesota state court of appeals rejected a religious freedom claim brought by Mark Albertson in a challenge to his conviction for having sexual relations with his 13-year old niece. At trial, the judge had asked why a Bible was on the corner of counsel table. Defense counsel said that the Bible belonged to Albertson, and that counsel did not plan to use it for purposes of the trial. The judge then told Albertson to put the Bible on his lap or under his chair. The court of appeals held that the trial court had "a compelling interest of conducting a trial in a secular, impartial, orderly manner," and that justified the order to hide the Bible from view.

Canada Supreme Court Strikes Down Ban On Kirpans In Schools

The Canadian Press reports that yesterday the Supreme Court of Canada held that a Montreal school board violated the Canadian Charter of Rights and Freedoms, Sec. 2.a., when it imposed a blanket ban on students' wearing of Sikh ceremonial daggers (kirpans). However, the court appears to have left open the possibility of reasonable safety restrictions, such as limits on the size of the kirpan or a requirement that it be kept sheathed. The case is Multani v. Commission scolaire Marguerite-Bourgeoys, 2006 SCC 6 (March 2, 2006). While all 8 justices agreed that the ban was improper, 3 justices preferred to use an administrative law, rather than a constitutional, approach to the issue. Justice Charron's constitutional law opinion for 5 justices said: "A total prohibition against wearing a kirpan to school undermines the value of this religious symbol and sends students the message that some religious practices do not merit the same protection as others."The Montreal Gazette reported additional background. [Thanks to Derek L. Gaubatz for information.]