American Legion Works To Protect Religious Symbols On Memorials

CNS News reports that the American Legion is teaming up with the Alliance Defense Fund and the Liberty Legal Institute in an effort to preserve veterans' memorials that feature crosses and other religious symbols. The Legion has asked its members to inform it of memorials that contain religious symbols, so it can keep track of any legal challenges to them. The Legion will inform ADF and LLI challenges it discovers.

Court OK's Exclusion of Tuition Grants For Pervasively Sectarian Colleges

A Colorado federal district court on Friday upheld Colorado's exclusion of "pervasively sectarian institutions" from its tuition assistance programs for low-income students attending colleges and universities in the state. In Colorado Christian University v. Baker, (D CO, May, 18, 2007), the court rejected both free exercise and establishment clause attacks on the law. Relying largely on the Supreme Court's Locke v. Davey decision, the court applied a "rational basis" test to the free exercise claim. It found that the statutory exclusion furthers implementation of the prohibition in Art. IX, Sec. 7 of Colorado's state constitution barring state aid to any college or university controlled by any sectarian denomination. A press release by the University in response to the decision said that it believed that the decision would be overruled by the 10th Circuit.

Recent Articles of Interest

From SSRN [Revised]:
David E. Guinn, Naming the Whirlwind (Chap. 4 of Constantine's Standard: Religion, Violence, Politics, Law, & a Faith to Die For), (May 11, 2007).

David E. Guinn, The Many Faces of Violent Faith (Chap. 5 of Constantine's Standard: Religion, Violence, Politics, Law & a Faith to Die For), (May 11, 2007).

C. Scott Pryor, God's Bridle: John Calvin's Application of Natural Law, Journal of Law and Religion, (Vol. 22, 2006-2007).

Douglas G. Smith, The Constitutionality of Religious Symbolism After Mccreary and Van Orden, (Texas Review of Law & Politics, 2007).

Harry G. Hutchison, Shaming Kindergarteners? Channeling Dred Scott? Freedom of Expression Rights in Public Schools, (Catholic University Law Review, Vol. 56, No. 2, pp. 361-400, Winter 2007).

From Bepress:
Sara S. Ruff., Nonreligion, Neutrality, and the Seventh Circuit's Mistake, (2007).

From SmartCILP:
Christopher F. Richardson, Islamic Finance Opportunities in the Oil and Gas Sector: An Introduction to an Emerging Field, 42 Texas International Law Journal 119-153 (2006).

Adrien Katherine Wing & Ozan O. Varol, Is Secularism Possible in a Majority-Muslim Country?: the Turkish Example, 42 Texas International Law Journal (2006).

John F. Scarpa Conference on Law, Politics and Culture. Articles by Avery Cardinal Dulles, S.J., Patrick McKinley Brennan, Richard W. Garnett and Amelia J. Uelmen. 52 Villanova Environmental Law Journal (2007).

In 2 Cases, Congregation Members Seek Court Ouster of Clergyman

Members of a mosque in Trenton, New Jersey filed suit last month, asking the court to oust the imam currently leading the mosque. The Trenton Times reported yesterday that founding members of the mosque allege that Imam Sabur Abdul Hakim has changed religious practices at the mosque. He and a small group of followers want the mosque to follow the rigid Salafi doctrine. Plaintiffs also say that Hakim appointed his son-in-law as "ameer" last August, without an election by the congregants. The suit seeks not only the removal of the Imam and the ameer, but also an accounting for mosque funds and a new election of trustees by congregation members.

Meanwhile, yesterday's Boston Globe reports on another legal fight to oust a clergyman. In Brocton, Massachusetts, a state Superior Court judge has issued a temporary injunction returning control of the First Baptist Church of Whitman to a group of congregants who are attempting to oust Rev. Michael Fernandez. The congregants are led by the former clerk of the church, Jean Porter. That group has voted in its own slate of church officers, restored the church's former bylaws and has voted to terminate Fernandez as pastor. They say that Fernandez never gained certification from the American Baptist Churches of Massachusetts, as required by the church's bylaws. The current situation arose when Fernandez decided to bring his growing former congregation from Holbrook to the church in Whitman whose membership was declining. However, the two congregations essentially continued to function separately, though Fernandez took control of the building, a bank account and the church's website. Now Fernandez says he will move his followers to Hanover instead of fighting the legal battle to stay at the Whitman church.

Two Interesting Tributes To Jerry Falwell

Today's Los Angeles Times publishes an unusual tribute to the late Rev. Jerry Falwell. It is from Hustler Magazine publisher Larry Flynt who won a Supreme Court victory over Falwell in 1988. In Hustler Magazine v. Falwell, (Sup. Ct., 1988), the Court rejected Falwell's attempt to collect damages from Flynt for libel and infliction of emotional distress caused by a parody advertisement depicting Falwell in a drunken incestuous rendezvous with his mother in an outhouse. Subsequently they became friends and went around the country debating morals and the First Amendment on college campuses. Flynt's tribute reads in part:

[T]he reverend and I had a lot in common. He was from Virginia, and I was from Kentucky. His father had been a bootlegger, and I had been one too in my 20s before I went into the Navy. We steered our conversations away from politics, but religion was within bounds. He wanted to save me and was determined to get me out of "the business."

My mother always told me that no matter how repugnant you find a person, when you meet them face to face you will always find something about them to like. The more I got to know Falwell, the more I began to see that his public portrayals were caricatures of himself. There was a dichotomy between the real Falwell and the one he showed the public.

He was definitely selling brimstone religion and would do anything to add another member to his mailing list. But in the end, I knew what he was selling, and he knew what I was selling, and we found a way to communicate.

A less surprising tribute came from former House speaker Newt Gingrich, appearing Saturday as commencement speaker at Falwell's Liberty University. (Washington Post). Gingrich told reporters: "Anybody on the left who hopes that when people like Reverend Falwell disappear, that the opportunity to convert all of America has gone with him fundamentally misunderstands why institutions like this were created."

UPDATE: Here is a transcript of Gingrich's commencement remarks.

Ohio Court Upholds Both Parents' Right To Influence Child's Religious Practies

In Holder v. Holder, (OH App., May 11, 2007), an Ohio appellate court rejected a custodial father's claim that the trial court should have ordered his former wife to refrain from taking their daughter to religious activities. The father, a Catholic, objected to the rigid restrictions imposed by his former wife's United Pentecostal Church. The majority opinion said that while the mother has the right to have their daughter participate in religious activities, it is the court's expectation that the mother will not continue to foster conflict and to attack he former husband's religious orientation by means of their daughter. A concurring judge said that he is convinced that the mother consistently places her religious obligations ahead of her child's best interests. However, he was unwilling to find that the trial court had committed a sufficient abuse of discretion to reverse its findings.

Recent Prisoner Free Exercise Decisions

In Robins v. Lamarque, 2007 U.S. Dist. LEXIS 34803 (ND CA, April 27, 2007), a California federal district court permitted a Muslim prisoner to proceed with a claim that during a period of over seven months, he was allowed to attend only one religious service.

In Van Patten v. Schmidt, 2007 U.S. Dist. LEXIS 35247 (ED WI, May 14, 2007), a Wisconsin federal district court permitted a prisoner to proceed with his claim that his religious property had been confiscated and that he was prevented from practicing his religion while in jail.

In Piskanin v. Hammer, 2007 U.S. Dist. LEXIS 35177 (ED PA, April 26, 2007), a Pennsylvania federal district court rejected a prisoner's free exercise claim growing out of authorities' taking from plaintiff his "Miraculous Medal" when he was placed on suicide watch. He was unable to wear his Miraculous Medal necklace for about 30 days.

In Burke v. North Dakota Department of Correction and Rehabilitation, 2007 U.S. Dist. LEXIS 35733 (D ND, May 16, 2007), a North Dakota federal district court permitted a Hindu prisoner to proceed with free exercise and equal protection claims. The prisoner complained that he has been denied a "religious study day" similar to one given to Christian inmates, as well as access to ritual items such as camphor, kumkum, incense, and butter lamps. He also protests that the penitentiary chaplain refuses to recruit non-Christian volunteers to work with inmates.

In Metras v. Pollard, 2007 U.S. Dist. LEXIS 36015 (ED WI, May 16, 2007), a Wisconsin federal district court rejected a prisoner's free exercise claim, finding that the damaging of his rosary during a search of his cell did not restrict the exercise of his religious beliefs. Apparently the prison guard was testing the material in the rosary, and did not destroy it because of its religious nature.

In Hanley v. Merced County Sheriff's Department, 2007 U.S. Dist. LEXIS 36263 (ED CA, May 3, 2007), a California federal Magistrate Judge ruled that a prisoner's complaint alleging that he was not allowed to wear his cross did not adequately set out the relationship of the restriction to his free exercise of religion. The judge gave the prisoner 30 days to amend his complaint to allege that defendants substantially burdened the practice of a central tenet or belief of his religion by preventing him from engaging in conduct mandated by his faith.

China Restricts Saka Dawa Buddhist Rites For School Children

Phayul.com reported yesterday that Chinese authorities who control the Tibet Autonomous Region have taken steps to restict school children from participating in religious activities during the Buddhist holy month of Saka Dawa. The holy month began on May 17. The Lhasa City Committee told parents of school children that their children would be expelled from school if they visited monasteries were found circumambulating and wearing amulet thread during Saka Dawa. This year, a new law, Measures for the Regulation on Religious Affairs, entered into force in the Tibet region.

Georgia's Tax Exemption For Bibles and Religious Papers Held Unconstitutional

In Budlong v. Graham, 2007 U.S. Dist. LEXIS 36101 (ND GA, May 16, 2007), a Georgia federal district court struck down Georgia's sales and use tax exemptions for Bibles and other books recognized as holy scriptures, and for religious papers published by non-profit religious institutions. The court held that even if the state has a compelling interest in this content-based classification, the exemptions are not "narrowly tailored". It said: "If the purpose of the exemptions is to alleviate monetary burdens imposed on religious practice, the exemptions are significantly under-inclusive, failing to include the much broader range of religiously motivated retail activities currently subject to the tax." This, in the court's view, invalidates the exemptions under the Free Press clause of the First Amendment. Finding that basis for invalidity, the court declined to reach the Establishment Clause, due process and state constitutional challenges brought by plaintiff.

Ohio House Presses Its Guidelines For Invocations

Sessions in the Ohio House of Representatives regularly open with a prayer from an invited member of the clergy. The House has Guidelines for them: prayers should be non-denominational, non-sectarian and non-proselytizing, and they should avoid contentious subjects. They go on to provide: "In order to ensure that the above guidelines are met, we are asking that you submit a copy of your prepared remarks at least 72 hours prior to the session day for which you are scheduled. Failure to do so will prohibit you from delivering your prayer. If it is determined that the prayer is of a denominational, sectarian or proselytizing nature, we will ask for it to be changed to conform to the guidelines."

The Columbus Dispatch reported yesterday that House Clerk Laura Clemens has sent a memo to all House members saying that increasingly ministers are ignoring the guidelines. In particular their prayers are becoming more sectarian. Apparently the memo was sparked by an invocation several days ago in which Rev. Keith Hamblen, pastor of Lima, Ohio's Calvary Bible Church, referred to Jesus several times, spoke favorably of church-sponsored schools and mentioned bills up for debate that day, including a controversial proposal on regulating strip-clubs.

Raymond Vasvari, former legal director for the Ohio ACLU, said the House has a problem. If, in trying to assure that prayer is non-sectarian, it reviews invocations of invited ministers in advance, this is akin to an illegal prior restraint. [Thanks to Alliance Alert for the lead.]

Cross In Idaho County Seal Questioned

An op-ed yesterday in Sun Valley Online questions action taken in 2005 by the Canyon County, Idaho Commissioners. They adopted a redesigned county seal. Among the buildings, wildlife and farmland depicted on the seal is a church with a cross on top. Jenny Fultz, who designed the new seal, said: "I chose what I felt was one of the symbols that is most widely recognized as spirituality. When you see a cross you think of not just Christianity, but religion in general."

Conservative Group Issues Report On Muslim Charities In U.S.

Last month the conservative group, Judicial Watch, released a report titled Muslim Charities: Moderate Non-Profits or Elaborate Deceptions? The report claims that a number of these charities in the United States are front organizations for Islamic terrorist groups. [Thanks to today's Law Librarian Blog for the lead.]

ACLU Sues Louisiana School District Over Bible Distribution

The Louisiana chapter of the American Civil Liberties Union announced yesterday that it had filed yet another lawsuit against the Tangipahoa Parish School Board, this time to stop the Board from allowing the distribution of Gideon Bibles to students on school property during the school day. The suit was filed on behalf of a fifth grade student, identified only as Jane Roe, and her father. In the past 13 years, the ACLU has filed 5 other religious liberty lawsuits against the Tangipahoa Board. (See prior related posting.)

The complaint filed in federal court (full text) alleges that the student's teacher led the entire class out to the Gideons so they could each get a Bible, and that students were pressured by fear of being criticized or ridiculed into accepting a copy. The Associated Press, reporting on the lawsuit, quotes ACLU state director Joe Cook as saying that the teacher's actions disrespected parents rights to choose the religious tradition in which they wish to raise their children.

Canadian Appellate Court Upholds Hutterites Right To License Without Photo

In Hutterian Brethren of Wilson Colony v. Alberta, (Alberta Ct. App., May 17, 2007), an Alberta Court of Appeals , upholding a lower court decision, held that the refusal to issue Hutterites drivers' licenses without photos on them unjustifiably infringes their freedom of religion protected by Canada's Charter of Rights and Freedoms. Justice Slatter dissenting argued that the accommodation offered by the Province was sufficient. It had proposed issuing Hutterites an Operator’s Licence in a folder marked as property of the Province of Alberta so that Hutterites would never need to come into physical contact with the license. Also their photos would be placed in the Province's digital facial recognition database. Canadian Press yesterday reported on the decision.

Street Preachers Successfully Challenge City's Permit Ordinance

In World Wide Street Preachers' Fellowship v. City of Grand Rapids, 2007 U.S. Dist. LEXIS 35698 (WD MI, May 16, 2007), a Michigan court gave a partial victory to a Christian preacher who had been arrested for preaching loudly without a permit near a Pagan Pride Festival in a Grand Rapids, Michigan park. While the court upheld the city's breach-of-the peace ordinance, it granted a preliminary injunction against enforcing the its permit ordinance, finding that it is overbroad and not narrowly tailored. While the permit ordinance violated plaintiff's speech rights, it did not violate his free exercise rights.

Istanbul Authorities Limit Swimsuit Photo Displays

A new controversy between secularists and Islamists in Turkey is being reported by Pakistan's Daily Times. Recently the municipality of Istanbul ordered stores selling Turkish-manufactured Nelson swimsuits to get permission before displaying photos of models in swimsuits and bikinis on store front windows on main streets. The government then denied permission to four companies. Secularists say this is another attempt of Islamists to interfere in daily life of Turks. Istanbul's municipal planning department says the applications were denied because they were not in proper form.

Creationism Museum To Open; Generates Opposing Petition Campaign

A $27 million museum promoting creationism is set to open in Petersburg, Kentucky on May 28. The Campaign To Defend the Constitution is beginning a petition campaign on its website to oppose the Answers in Genesis Creation Museum. Def Con's petition argues that the museum attacks children’s basic understanding of fundamental scientific principles. Wednesday's Cincinnati Enquirer reports that museum defenders say that their critics should see the museum before they speak out against it.

More On Israel's Rabbinic Court Appointments Dispute

Religion Clause has followed the recent controversy in Israel over the appointment of 15 rabbinic court judges (see prior postings 1, 2, 3). These courts have jurisdiction over various status and family law matters. The Jerusalem Post reported on Wednesday that the Dayanim Election Committee has formally decided to annul the original appointments and to start the selection process over. Meanwhile, in another article, the JP reported that Justice Minister Daniel Friedmann defended his role in the matter before the Knesset Law Committee. However he also suggested that there should be changes in the law that would allow women to become religious court judges. This could only be done by changing the requirement that only rabbis can serve. Friedmann also said he would like to see litigants in the courts have an option of choosing a civil law alternative to Jewish religious law to govern their disputes if they wish.

Catholic House Members Criticize Pope's Statement

On Tuesday, The Hill reported that 18 Catholic Democratic members of the House of Representatives criticized remarks made last week by Pope Benedict XVI. The Pope, on his way to Brazil, suggested that he supports excommunication of legislators who support abortion rights. (See prior posting.) The Congressional members' May 10 statement (full text) said: "religious sanction in the political arena directly conflicts with our fundamental beliefs about the role and responsibility of democratic representatives in a pluralistic America – it also clashes with freedoms guaranteed in our Constitution. Such notions offend the very nature of the American experiment and do a great disservice to the centuries of good work the church has done."

Texas School District Sued Over Bible Curriculum

A lawsuit filed yesterday in a Texas federal district court on behalf of 8 parents of high school students challenges the constitutionality of a course in The Bible in History and Literature offered by two Odessa, Texas schools. The courses use the King James version of the Bible as a text. They follow the curriculum developed by the National Council on Bible Curriculum in Public Schools, after the school superintendent rejected an alternative curriculum developed by the Bible Literacy Project that is generally seen as more inclusive. (See prior posting and and an article from yesterday's Wall Street Journal.)

The complaint in Moreno v. Ector County Independent School District, (WD TX, filed May 16, 2007) (full text) alleges that the curriculum that was adopted promotes a particular religious interpretation of the Bible-- ignoring or dismissing other viewpoints-- and does not reflect current and reputable Biblical scholarship. It teaches the Bible as literal, historical truth and presents a religious interpretation of American history that does not reflect objective scholarly standards.

The suit was filed on behalf of the parents by the American Civil Liberties Union (press release) and People for the American Way (press release). ACLU lawyer Daniel Mach charged that the course "is about proselytizing one set of religious beliefs to the exclusion of others. Students who don't share those beliefs should not be treated as outsiders by their own schools." Also, he said that the course "requires students to give 'true' or 'false' answers to questions that are a matter of religious faith."