Petition For Cert Filed In Establishment Clause Standing Case

A petition for certiorari to the U.S. Supreme Court has recently been filed by the U.S. Justice Department appealing the 7th Circuit's decision in Grace v. Freedom From Religion Foundation, Inc. The question presented, as described by the brief is: "Whether taxpayers have standing ... to challenge on Establishment Clause grounds the actions of Executive Branch officials pursuant to an Executive Order, where the plaintiffs challenge no Act of Congress, the Executive Branch actions at issue are financed only indirectly through general appropriations, and no funds are disbursed to any entities or individuals outside the government." The 7th Circuit found standing. (See prior posting). The underlying claim challenges White House spending for conferences and other activities promoting the President's Faith Based Initiative. The Roundtable on Religion and Social Welfare Policy discusses the petition at greater length. [Thanks to Blog from the Capital for the lead.]

Georgia Tech Changes Speech Code To Settle Suit By Conservative Students

In response to a suit filed on behalf of students by the Alliance Defense Fund, Georgia Institute of Technology has agreed to change portions of its speech code for students living in on-campus housing. Yesterday's Atlanta Journal Constitution reports that the school has agreed to eliminate language that prohibits students from any attempt to "injure, harm" or "malign" a person because of "race, religious belief, color, sexual/affectational orientation, national origin, disability, age or gender." The Christian and Jewish plaintiffs alleged that the speech code infringed free expression by religious conservatives who wish to speak out against homosexuality and feminism. Under the court order issued yesterday embodying the settlement between the parties, Georgia Tech will need court approval if it changes its speech code any time in the next five years. Praising the settlement, Alliance Defense Fund Senior Legal Counsel David French said: "Officials at Georgia Tech had been enforcing draconian speech codes that prohibited any kind of student speech they deemed to be 'intolerant.' This is a tremendous victory for free speech."(See prior posting.)

California Proposal To Fund Mission Repair Formally Defeated In Committee

In California on Tuesday, by a vote of 2-0 the Senate Judiciary Committee formally rejected Senate Constitutional Amendment 32 that would have permitted state funding for repair of California's 21 historic missions. (Palm Springs Desert Sun.) Today's Los Angeles Times sets out the church-state arguments of committee chairman Sen. Joe Dunn-- the money would have funded churches that are used regularly for religious services. However Sen. Abel Maldonado, whose proposal would have placed the funding issue on the November ballot disagrees. He says that the missions are important parts of California's early history. He framed the proposal as a constitutional amendment because, as reported in an earlier posting, the California attorney general believes that funding would violate present provisions in the state's constitution. Earlier, Judiciary Committee staff had suggested a compromise-- specify in the amendment the maximum number of church services that may be held at historic sites that will get state funding. (Ventura County Star.)

5th Circuit Finds Bible Display In Courthouse Monument Unconstitutional

The U.S. 5th Circuit Court of Appeals yesterday issued a fascinating 2-1 decision upholding an Establishment Clause challenge to a monument on the grounds of the Harris County, Texas courthouse. The monument was originally erected in 1953 by a local Christian charity to honor William S. Mosher, a prominent Houston businessman and philanthropist. The top of the monument was a glass-topped display that included a Bible to memorialize Mosher's Christian faith. From 1988 to 1995 the Bible was removed from the monument, and the monument fell into disrepair. In 1995, John Devine was elected judge after campaigning on a platform of placing Christianity back into government. Devine and his court reporter solicited private donations to refurbish the monument, to restore a Bible to the display case, and to add neon lighting around the Bible. In Staley v. Harris County, Texas, (5th Cir., Aug. 15, 2006), the court held that the circumstances surrounding this refurbishment gave a predominately religious purpose to a monument that previously was primarily secular.

A dissent by Judge Jerry Smith argued that the majority has "enable[d] a candidate for political office to alter the character and constitutionality of a longstanding, privately-owned memorial merely by invoking religion and making benign alterations to the monument’s appearance.... This formerly unknown principle of constitutional law-- which perhaps should be crowned the 'Principle of Devine Intervention' --has serious doctrinal and practical consequences."

Yesterday's Houston Chronicle covers the decision. It reports that the county is likely to seek en banc review of the decision.

Councilman Loses In Attempt To Offer Christian Prayers

In Turner v. City Council of the City of Fredericksburg, Case 3:06-cv-00023-JRS (ED VA, Aug. 14, 2006), a federal district court dismissed the claim of city council member Hashmel Turner that his First Amendment rights were violated when he was not permitted to offer a specifically Christian opening prayer at city council meetings. The court found that his opening prayer is government speech, not private speech. Thus, "City Council can restrict what is said on its behalf during the opening prayer without infringing on the speaker’s viewpoint." The court went on to hold that the Establishment Clause prohibits sectarian legislative prayers, and the city's policy of requiring nonsectarian prayer is not an Establishment Clause violation. The decision is covered in today's Richmond Times-Dispatch which says that Turner is likely to appeal.

School Board Will Defend Jesus Portrait

The Harrison County, West Virginia Board of Education has raised more than the $150,000 it needed to mount a defense in a suit brought by the West Virginia ACLU and Americans United to force Bridgeport High School to remove a painting of Jesus that has hung in the school for many years. (See prior postings 1, 2.) The Associated Press yesterday reported that now the board will select lead counsel from among eight national advocacy groups that have offered legal help. Dennis Swindle, a local minister who defends the painting, said: "The ACLU is saying they have the right to come in and find a few people who disagree with the majority and use them to overtake the majority. All we're saying is, 'not without a fight.'" The school board itself has seen the controversy as something of a distraction from its concerns about educational issues.

Family Sues On School Reassignment That Interferes With Religious Class

In Raleigh, North Carolina, a Mormon family is suing the Wake County School board over the reassignment of their younger daughter, Brittany Bailey, to a new high school. The parents say that requiring her to go to a different school than her older sister attends will prevent Brittany from attending an early-morning religious class essential for the family's Mormon faith. WRAL.com reports that previously Brittany went to school with her older sister to school after the religious class. On Tuesday, a judge refused to order that Brittany remain in her old school while the case was being litigated. The school board decided not to make exceptions to reassignments for siblings because it would make it difficult to fill seven new schools.

New Voter Registration Drive In Evangelical Churches

Today's Los Angeles Times reports that James Dobson's Focus on the Family is beginning a massive new voter registration drive through Christian evangelical churches. The program was announced in an e-mail to supporters last week. It is recruiting county and church coordinators in 8 states: Maryland, Montana, Tennessee, Michigan, Ohio, Pennsylvania, New Jersey and Minnesota. In Ohio, 3 million copies of voter registration instructions will be distributed in bulletins by 15,000 churches. Focus on the Family will also distribute voter guides detaiing candidates' views on issues such as same-sex marriage, abortion, and stem cell research. Critic Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and State, says that Dobson is jeopardizing the tax exemption of churches that take part in this project. Organizers of the project, however, say that they are within the law so long as they merely register voters and discuss values, and do not endorse a specific candidate or party.

Yemen Court Finds Jihad Permissible

Yesterday's Wall Street Journal [subscription required] reported on a decision handed down last month by Yemeni Judge Mohammed al-Baadani who sits on the country's special terrorism court. He ruled that Yemeni law was not violated when 19 defendants traveled to Iraq to kill American soldiers and fight with al Queda. He said that the country's law, which includes elements of Sharia, was not violated because Islamic law permits jihad against occupiers of Muslim lands. The law only prohibits attacking U.S. or Western targets outside of occupied land. The judge has been surprised by the strong criticism of his decision by the U.S. embassy and by the judge's own family members who live in the United States. The judge says that a contrary ruling would have made martyrs of the defendants. Indeed it appears that prosecutors had not charged the defendants for their activity in Iraq, but only with plotting attacks against a Western hotel in Aden and against other Western targets-- and the prosecution showed no evidence to support these charges.

Developments In Navy Chaplain's Court Martial

More developments were reported yesterday in the upcoming court martial of Navy Chaplain Gordon J. Klingenschmitt (see prior posting) who is charged with disobeying an order by praying while in uniform at a press conference in front of the White House earlier this year. Agape Press reports that Klingenschmitt's attorneys are asking a military judge to dismiss the charges before the scheduled court martial proceedings on September 11. The Associated Press reports that Klingenschmitt's attorneys are also asking the court to turn over as evidence in the court martial thousands of pages of e-mails about how to handle Klingenschmitt that were sent to or from Rear Adm. Frederic R. Ruehe who is in charge of the Navy's Mid-Atlantic region. They seek to have Ruehe removed from having any authority over the case, claiming he is biased.

Indian Supreme Court Stays Law On Qualifications For Hindu Priests

According to The Hindu yesterday, the Supreme Court of India on Monday temporarily stayed enforcement of a new law enacted by the state of Tamil Nadu that provides for the appointment of archakas (priests) in Hindu temples without discrimination on the basis of caste or creed. (See prior posting.) Traditionally archakas were only Brahmins. A 3-judge panel of the court issued the stay in a suit charging that the new law violates Articles 25 and 26 of India's constitution. Challengers argue that those section guaranteeing freedom of religion are violated when the law permits appointment of archakas who do not have the qualifications required by the Agamas. The court gave the state 6 weeks to respond to the lawsuit.

President Signs Bill Transferring Mt. Soledad Cross To Feds

President Bush today signed H.R. 5683 that provides for Federal acquisition of the Mt. Soledad Veterans Memorial in San Diego, California. (White House Release.) The signing follows a federal district judge's decision on Friday to refuse a request that the President be enjoined from signing the bill. The Memorial, which is comprised mainly of a 43 foot cross, has been the subject of 17 years of litigation. That litigation promises to continue as District Judge Barry Moskowitz set the case for further argument next month once the federal government has taken title to the cross. Saturday's Voice of San Diego reports on these developments and the background leading up to them. (Also see prior posting.) The new law vests title to the property in the federal government immediately, but gives the parties a year to decide on the amount that should be paid to the city for the taking. Under the new law, the Mount Soledad Memorial Association that built and maintains the memorial will continue to maintain it. But its members are concerned about added complexity when they wish to add new plaques or hold ceremonies, once the memorial is federally owned.

No Establishment Clause Problem With Ban Of Prostitution Near Churches

Oklahoma law imposes enhanced sanctions on those who operate houses of prostitution within 1000 feet of a church or school. (21 Okl. Stat. Secs. 1028, 1031). In Maxwell v. State, 2006 Okla. Crim. App. LEXIS 34 (OK Ct. Crim. App., Aug. 8, 2006), the Oklahoma Court of Criminal Appeals rejected a defendant's claim that his conviction for maintaining a house of prostitution within 1,000 feet of a church violates the Establishment Clause. The court held that the term "church" in the statute applies also to other houses of worship such as synagogues or mosques. The court went on to hold that the statute has the secular legislative purpose of deterring prostitution-related activities in areas where families with young children and the elderly can reasonably be expected to gather. It also found that the primary effect of the statute is not the advancement of religion, nor does it foster excessive government entanglement with religion.

Challenge To Faith-Based Jail Program Moves Ahead

Moeller v. Bradford County, 2006 U.S. Dist. LEXIS 66613 (MD PA, Aug. 10, 2006), disposed of various preliminary motions in a case challenging the constitutionality of federal, state and local funding of a faith-based vocational training program in the Bradford County (PA) Correctional Facility. The program, operated by the Firm Foundation, is a prison ministry that requires its staff to adhere to Christian beliefs. The program is the only vocational training available to inmates and routinely includes proselytization. Government funds are not limited to the program's secular aspects. A Pennsylvania federal district court held that it will entertain jurisdiction over state constitutional claims for injunctive and declaratory relief. It also held that the plaintiffs' complaint was adequate to give notice of the claims to the defendants and that the complaint adequately states an Establishment Clause claim.

Recent Articles On Law, Religion and Religion Clauses

From SmartCILP:

• Bernard M. Levinson, The First Constitution: Rethinking the Origins of Rule of Law and Separation of Powers In Light of Deuteronomy, 27 Cardozo Law Review 1853-1888 (2006).
• Michael R. Marrus, A Jewish Lobby at Nuremberg: Jacob Robinson and the Institute of Jewish Affairs, 1945-1946, 27 Cardozo Law Review 1651-1665 (2006).

From SSRN:

• Eric Claeys, Justice Scalia and the Religion Clauses: A Comment on Professor Epps, (Washington University Journal of Law and Policy, Vol. 21, 2006).
• Frederick M. Lawrence, The Hate Crime Project and its Limitations: Evaluating the Societal Gains and Risk in Bias Crime Law Enforcement, (GWU Legal Studies Research Paper No. 216).

Investment Frauds Target Church Members

Affinity fraud-- investment schemes aimed at defrauding members of a particular church-- is on the rise. An AP article yesterday set out examples of church members being bilked out of millions of dollars. A typical approach is for a fraudster to first make a generous donation to the church, pulling in an implicit endorsement from the minister. Church members may be further enticed by the suggestion that they donate part of their investment earnings to the church. The SEC last year issued an Investor Alert warning about these kinds of schemes.

Arkansas Candidates On Intelligent Design

Today's Arkansas Democrat Gazette reports on views of candidates for statewide office in Arkansas on the issue of teaching intelligent design. Not surprisingly, views are mixed. Of particular interest are the views of Democratic nominee for governor, Mike Beebe. He says that he believes in intelligent design, and that information on it should be "available" to students. However he did not indicate whether he thought the theory should be a required part of the state's public school curriculum. He argued that availability "would provide Arkansas students background they need to wrestle with these and other fundamental questions as they become adults. I believe both should be available because one is the consensus theory of the scientific community, and the other is the predominant belief of most Arkansans and Americans."
Beebe did not say whether the theory should be a required part of the state’s curriculum.

By contrast, Democratic candidates for attorney general and lieutenant governor say the science curriculum should be left to science teachers, not politicians. AG candidate for Dustin McDaniel said: It's up to our churches and our families to explain exactly how the scientific parts of the universe are created by God. He added, "I’m not running to be the state’s science officer."

Republican candidate for lieutenant governor, Jim Holt, said teachers should have the option to teach about intelligent design. He called evolution "a fraud theory" and argued that keeping ID out of public schools is censorship.

UPDATE: On Monday, Democratic nominee for governor Mike Beebe clarified that while he believes information on intelligent design should be available to students, court rulings require that the theory be taught only in churches, faith organizations and private groups. (Arkansas Democrat Gazette, Aug. 15).

Atheist Family Files Civil Rights Claims Against School and Sheriff's Department

In Oklahoma, a federal civil rights suit has been filed on behalf of the Smalkowski family against the Hardesty, OK Public Schools and the Texas County Sheriff's Department. The suit alleges that daughter Nicole Smalkowski was forced from the Hardesty school basketball team for refusing to take part in reciting the Lord's Prayer after a game, and she was later suspended when her family complained. Subsequently Chester Smalkowski got into an altercation with the school principal over these events, was charged with assault and was acquitted. (See prior posting.) Smalkowski alleges that the District Attorney offered to drop charges if the family moved out of the county. (See prior posting.) American Atheists, whose national legal director is one of the attorneys representing the Smalkowskis, has issued a press release on the case.

Chinese Journalist Detained For Reporting On Protests Against Church Demolition

On Friday, the Committee to Protect Journalists issued a release protesting China's treatment of Hangzhou journalist Zan Aizong. Zan was charged with "disturbing public order" and placed under a seven-day administrative detention for writing about arrests and injuries involving thousands of Christians protesting the July 29 demolition of a church in Hangzhou. (See prior posting.) His articles were posted on web sites in China and overseas. Today's Taipei Times has further coverage of the journalist's arrest.

Christian Street Preacher's Civil Rights Claims Will Proceed To Trial

Marcavage v. City of Philadelphia, 2006 U.S. Dist. LEXIS 55643 (ED PA, Aug. 3, 2006), involves civil rights claims by Michael Anthony Marcavage, a devout Christian who believes that it is his "Biblical mandate" to educate people about "the sinful nature of our country." Marcavage engages in open-air preaching, distributing of Gospel literature, sidewalk ministering, and the displaying of signs opposing sexually oriented businesses, homosexuality and abortion. His activities have led to a series of encounters with police, including two arrests. A Pennsylvania federal district court refused to grant most of the motions by both plaintiff and defendants for summary judgment on Marcavage's free speech, free exercise of religion and equal protection claims, as well as certain other claims, finding that there are issues of fact as to whether Marcavage's activities threatened public safety and as to whether police reaction was based on the content of Marcavage's speech. The court did dismiss the claims against the city of Philadelphia that alleged failure to adequately train police and that city policy was to violate his rights.