New Mexico Town Will Place 10 Commandments By City Hall

Yesterday's Santa Fe New Mexican reports that officials in Bloomfield, New Mexico are moving ahead with plans to erect a Ten Commandments monument outside City Hall, under a policy that allows monuments to feature local or national figures, or events and documents related to the development of law or government. City officials say the planned monument is historical and artistic. The monument's $6000 cost would come from private funds.

Wisconsin Supreme Court Rejects Statute of Limitations Argument In Fraud-Abuse Case

In what is described by commentators as a "surprise move" (Orange County Personal Injury Lawyer), yesterday the Wisconsin Supreme Court held that fraud claims against the Catholic Archdiocese of Milwaukee growing out of priest sexual abuse charges may still be able to be brought. In John Doe 1 v. Archdiocese of Milwaukee, (WI Sup. Ct., July 11, 2007), the court affirmed dismissal on statute of limitations grounds of claims that the church had been negligent in supervision of its priests. However it held that

the claims of fraud for intentional misrepresentation are independent claims based on the Archdiocese's alleged knowledge of the priests' prior sexual molestation of children and the Archdiocese's intent to deceive children and their families. We further conclude that the date of the accrual of the fraud claims is "when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered" that the Archdiocese's alleged fraud was a cause of their injuries.

Two justices dissenting in part argued that the negligent supervision claims should not have been dismissed either.

LDS Church Loses Bid to Keep Finances Secret

The Oregonian reports today that Oregon's Supreme Court has rejected a motion by the Church of Jesus Christ of Latter Day Saints for emergency relief from a trial court's order that it disclose detailed information about LDS assets. The order came in a suit brought by a man who alleges that he was molested 20 years ago by a church-endorsed home teacher who was to provide educational and religious guidance. The Church argues that disclosing the financial information would infringe its free exercise rights. The Church has released no financial information since 1959.

Muslim Head Scarves Remain Controversial In U.S.

The wearing of a traditional head scarf by Muslim women remains surprisingly controversial in the United States. The Associated Press reports that representatives of the Council on American-Islamic Relations met with Valdosta, Georgia municipal court officials yesterday to discuss a change in the policy that prohibits wearing of head coverings into courtrooms. (See prior posting.) No definitive resolution of the issue was worked out, but the parties agreed to continue talking and hope to make further progress on the issue.

Meanwhile, yesterday's Sacramento (CA) Bee reports that a Muslim woman has filed a discrimination suit in Solano, California Superior Court against Whitehall Jewelry stores. Shereen Attia had previously worked part-time for the stores. Her former supervisor asked her to return to work, but when he discovered that she had begun to wear a head scarf for religious reasons, he refused to hire her. Whitehall already employed one woman who wore a head scarf. Attia's suit alleges that the stores' district manager vetoed her hiring, saying "Oh no, not another one."

Cobb County, GA Wins On Most of Its Prayer Practices

The Associated Press reports that a Georgia federal district judge has upheld the way in which the Cobb County, Georgia, Board of Commissioners chose clergy to deliver invocations at Board meetings. It invited clergy from a diverse set of religious organizations. However the court found that the Cobb County Planning Commission violated the Establishment Clause in 2003 and 2004 when, in choosing clergy to deliver opening prayers, a deputy clerk excluded Jewish, Muslim, Jehovah’s Witnesses and Mormon clergy. Since those exclusions were halted before the lawsuit was filed, the court refused to issue an injunction and merely awarded nominal damages of $1. The court refused to ban clergy delivering invocations from using sectarian prayers, so long as a wide variety of clergy were invited.

UPDATE: The full opinion is now available on Lexis: BATS v. Cobb County Georgia, 2007 U..S. Dist. LEXIS 50196 (ND GA, July 6, 2007).

Jews For Jesus Challenges Leafleting Restrictions

In the second round of its challenges to the Town of Oyster Bay, New York (see prior posting), Jews for Jesus has filed suit in federal court challenging the town's ordinance that prohibited the distribution of literature in public parks. Yesterday's New York Law Journal reports, however, that shortly after the suit was filed, the town changed its rules so that printed material can now be distributed if a group first obtains a permit from Town officials. Leaflets can be distributed only from a table at a fixed location, and no more than four leafleters may be present. Susan Pearlman, associate executive director of Jews for Jesus, said that the group would still move ahead with its lawsuit. [Thanks to Steven H. Sholk for the lead.]

Recent Articles On Church-State Issues

From SSRN:
Leslie C. Griffin, Conscience and Emergency Contraception, Houston Journal of Health Law and Policy, Vol. 6, No. 299, 2006.

From Asian Journal of Comparative Law, (Vol. 2, Issue 1, 2007):
Andrew Harding, Buddhism, Human Rights and Constitutional Reform in Thailand.

Mohamed Azam Mohamed Adil, Law of Apostasy and Freedom of Religion in Malaysia.

From SmartCILP:
Dana E. Blackman, Refusal to Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination?, 14 Michigan Journal of Gender & Law 59-97 (2007).

Kristin B. Gerdy, The Irresistible Force Meets the Immovable Object: When Antidiscrimination Standards and Religious Belief Collide in ABA-Accredited Law Schools, 85 Oregon Law Review 943-991 (2006).

Michele Estrin Gilman, Fighting Poverty With Faith: Reflections on Ten Years of Charitable Choice, 10 Journal of Gender Race & Justice 395-438 (2007).

Symposium: The Jurisprudential Legacy of John Paul II. 45 Journal of Catholic Legal Studies 221-669 (2006).

Dean Sanderford, The Sixth Amendment, Rules 606(b), and the Intrusion into Jury Deliberations of Religious Principles of Decision, 74 Tennessee Law Review 167-197 (2007).

Church Gets TRO Against Bidet Ad On Billboards At Its Building

On Monday, according to the Associated Press, a New York state trial court issued a temporary restraining order prohibiting a billboard ad company from placing a planned ad for a bidet company on two Times Square billboards. Rev. Neil Rhodes, pastor of the interdenominational Times Square Church , filed the lawsuit objecting to the bare buttocks with smiley faces that were to be in the ads that were scheduled to go up on billboards on two sides of the building that houses Rev. Rhodes' church. He said that the ads would interfere with the church's religious activities, which include a Bible school and day care center. The judge, who said that the motion poses novel and significant issues, required the church to post a $90,000 bond to cover damages and costs for the defendant if the church ultimately lost its lawsuit.

Kentucky County Will Issue Revenue Bonds To Finance Church Addition

Boone County, Kentucky's Fiscal Court has agreed to issue up to $2.8 million in industrial revenue bonds to finance a 5,000 square foot addition to the Vineyard Christian Church in Burlington, Kentucky. The addition will be used for Sunday school classes as well as for community groups such as Alcoholics Anonymous. The Kentucky Post reports that yesterday's decision by the County was defended by County Judge-Executive Gary Moore who said that the issuance of the bonds does not breach the required separation of church and state. He cited both federal court decisions and a 1993 Kentucky Attorney General's opinion.

NY Rabbinical College Sues For Permission to Build

The Brooklyn-based Congregational Rabbinical College of Tartikov has filed suit in federal district court in New York challenging Pomona, New York officials' refusal to permit the group to build a Rabbinical College on 30 acres of the Congregation's 100 acre property. The proposed college would include places of worship, educational facilities, religious courts, libraries and student housing. The complaint (full text) in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, alleges violations of RLUIPA and of the federal Fair Housing Act, as well as violations of various state and federal constitutional provisions. The complaint alleges that "The Village of Pomona has engaged in a targeted and deliberate decades long effort to prevent various Jewish individuals and institutions from developing the subject property and other nearby properties, while permitting other development within the Village." The Associated Press today reports on the lawsuit. (See prior related posting.)

IRS Issues New Rev. Proc. On Sec. 501 Determinations

The Internal Revenue Service has issued Revenue Procedure 2007-52 (effective July 23, 2007), 2007 IRB LEXIS 591, setting out the procedures to be used by non-profit organizations, including churches and other religious groups, in applying for tax-exempt status under Section 501 of the Internal Revenue Code. The Rev. Proc. updates a similar set of rules issued in 1990. Among the changes in this Rev. Proc. is the centralization of determinations on exempt organization applications in the IRS's Cincinnati office

Military Conscientious Objector Rules Are Depublished

Largely unnoticed until now, in May the Department of Defense reissued Instruction 1300.06 setting out DoD policy on conscientious objectors and the procedures for processing discharge requests based on conscientious objection. Then last month the Department of Defense removed from the Code of Federal Regulations the previous version of Defense Department rules on conscientious objectors (32 CFR Part 75). This makes the current CO rules unpublished regulations. The June 19 Federal Register, 72 FR 33677 (June 19, 2007), says that this step has been taken because: "The document on which this part was based has been revised and is limited only to DoD personnel management matters, affects only DoD military personnel, and has no impact on the public." [Thanks to Scott Idleman via Religionlaw listserv for the lead.]

Conference Honors Roy Moore

Jews on First this week has a lengthy account of the God & Country Patriotic Celebration & Conference held in Bowie, Maryland on July 1- 3. Sponsored by a number of right wing Christian groups, the Conference's concluding day honored former Alabama Supreme Court Chief Justice Roy Moore. In his remarks, Moore called for "the sovereignty of God in this country", while conference leader Michael A. Peroutka referred to the Confederate flag that was flying (along with those of Alabama and Maryland) as "the American flag".

Anti-Discrimination Policy vs Student Religious Rights: Once More Unto the Breach

Another lawsuit alleging a conflict between a school's anti-discrimination policy and the restricted religious membership of a proposed University club has been filed. See prior posting here and here.

The Alliance Defense Fund and Christian Legal Society have filed a suit against the University of Florida because, according to a CLS Blog post, "University officials refuse to recognize [Brothers Under Christ/Beta Upsilon Chi] as a registered student organization because the fraternity limits membership to men, and refuses to allow the fraternity to go under the Greek system because it requires members to share the group's Christian beliefs."

Franchise Story 2: Forbes Discusses One Franchisor's Practices

Forbes has published a story called "The Cult of Chick-fil-A," found here (free registration required) and at Westlaw (2007 WLNR 12995596). The article attempts to characterize Chick-fil-A's relationship with its franchisees, noting that Chick-fil-A allegedly "screen[s] prospective operators for their loyalty, wholesome values and willingness to buy into Chick-fil-A's . . . Christian credo." The article then discusses potential legal issues relating to such

screening:

. . . Is it legal? There are no federal laws that prohibit companies from asking
nosy questions about religion and marital status during interviews. Most companies don't because it can open them up to discrimination claims, says James Ryan, a spokesman for the Equal Employment Opportunity Commission. Chick-fil-A has more freedom to ask whatever it wants of franchisees because they are independent contractors and not necessarily subject to federal employment discrimination laws. (Employees, however, may sue under those laws.)

Franchise Story 1: 7th Circuit Allows Race-Based Discrimination-in-Franchising Case to Proceed

A panel of the Seventh Circuit has unanimously ruled that an Arab and Muslim franchisee who refused to serve pork products in his store could proceed with his 42 U.S.C. §§ 1981 & 1982 claims against Dunkin Donuts. The case is Elkhatib v Dunkin Donuts, No. 04-4190 (7th Cir July 10, 2007).

Elkhatib claims that Dunkin Donuts refused to allow him to renew his franchisee agreements or relocate when it learned that he was not selling Dunkin Donuts' breakfast sandwiches. The Court determined that Dunkin Donuts' citation of Elkatib's failure to carry the products was pretext, concluding "there is significant evidence that the carrying of breakfast sandwiches was not an issue of importance to Dunkin Donuts." Slip. Op. at 10.

What may be more interesting to the readers of Religion Clause is how the two courts dealt with (or not) the religious element of his claim. In granting Dunkin Donuts' motion for summary judgment, the trial court sua sponte construed Elkhatib’s claim to be one of religious discrimination rather than racial discrimination, based on the court’s determination that the restrictions on handling pork are associated with religion, not race:

Elkhatib alleges discrimination based on race. See Compl., ¶ 9 (“Plaintiff, as an Arab is forbidden from dealing, buying or selling pork products, because of his race's traditions and religious practices”). Elkhatib cites St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) for the proposition that Arabs may sue for racial discrimination under § 1981. In that case, plaintiff Al-Khazraji sued a university that denied him tenure on the alleged grounds of racial discrimination. The Supreme Court held that “[i]f Respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or religion, he will have made out a case under § 1981.” Id. at 613. Al-Khazraji based his claim solely on racial grounds. However, the court construes Elkhatib's claim to be one of religious discrimination rather than racial discrimination. The dietary restrictions Elkhatib points to are associated with religion rather than race. Islamic and Jewish law both prohibit the handling and consumption of pork. . . . Claims of religious discrimination are not cognizable under § 1981 and § 1982. Elkhatib v. Dunkin' Donuts, Inc. 2004 WL 2600119, *3 (N.D.Ill. 2004) (notes and religious citations removed). [Ed Note: Links Repaired].

On appeal, neither party argued this point. Slip. Op. at 3. Apparently, the Defendant only pressed its contention that that the district court properly held in the alternative that Elkhatib had failed to meet his burden in demonstrating racial discrimination. Id. And Plaintiff, of course, rested on its position that Elkhatib was subject to racial discrimination.

Somewhat surprisingly, the Seventh Circuit accepted this characterization without comment (and without examining the district court's contention) and treated the claim as a race-based one.

Thanks to How Appealling for the lead.

Hudson Institute's Religious Freedom in the World 2007

On Monday, July 9, the Hudson Institute’s Center for Religious Freedom released the initial findings for its forthcoming book Religious Freedom in the World 2007 (Rowman and Littlefield). According to Hudson, this survey describes and analyzes over 100 countries and territories, especially those where religious freedom is most violated.

Some of the statistics in the survey can be found here:

1. Country Religious Freedom Scores Compared to Freedom House Rankings of Political Rights and Civil Liberties


2. Grim & Finke Scores for Government Regulation of Religion (GRI), Government Favoritism of Religion (GFI), and Social Regulation of Religion (SRI)

Here is a National Review piece by Paul Marshall on the study he edited.

Thanks to Melissa Rogers for the lead.

InnerChange: Latest Developments

On July 1, 2007, this blog reported (here) that Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause.

Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."

Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.

Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."

Asylum Seeker Has Right to Profess Faith in Public

According to the Middle East Times (Egypt), a German court ruled that an asylum seeker from Iran who had converted to Christianity may not be deported. Germany had originally denied the asylum seeker's request on the grounds that she had been able to secretly practice her religion in Iran. The asylum seeker claimed that her faith required public professions and attendance at worship services.

The administrative law judges reviewing the decision accepted her argument that a 2004 European Union directive requires the granting of asylum to those who face persecution for practicing their religion in public. Moreover, the court doubted that she could return to the secret practice of her religion after living openly in Germany.

Article 10 of that directive holds that:

1. Member States shall take the following elements into account when assessing the reasons for persecution: (a) . . . . (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief . . .

$1 Damages to Cobb County Prayer Plaintiffs

In September, 2006, a Georgia federal district judge upheld the practice of the Cobb County (GA) Board of Commissioners and its Planning Commission to open their sessions with prayer, but determined that the Planning Commission's selection procedure for identifying clergy to deliver that prayer was defective. That case, Pelphrey v. Cobb County, 448 F. Supp. 2d 1357, 1374 (N.D. Ga. 2006), was reported on here and here.

The court has issued its decision on relief owed the plaintiffs. As said, the Court had previously upheld the Board of Commissioners' process for selecting speakers which involved inviting clergy from a master list compiled using the Yellow Pages. The Planning Commission also used the Yellow Pages, but its set of Yellow Pages "contained cross-out markings through the contact information of Islamic, Jehovah’s Witness, Jewish, and Latter Day Saint churches. Leaders of those faiths were categorically excluded from the pool of invitees in 2003 and 2004." Pelphrey v. Cobb County, No. 1:05-cv-2075, slip op. at 4 (ND Ga. July 7, 2007).

The court concluded that the Plaintiffs were entitled to a declaration that the 2003-2004 practice was unconstitutional, that they are entitled to compensatory damages of $1, and that they are not entitled to injunctive relief. Id. at 21-22. The court concluded that no injunctive relief was appropriate because, given that the practice had stopped in 2005, "an injunction would not operate to redress the unconstitutional conduct." Id. at 21. It concluded that nominal damages were appropriate where, as here, a plaintiff established the violation of an “absolute”constitutional right—such as the right to be free from a state establishment of religion—but cannot prove actual injury. Id at 17 - 18.

A story detailing this award can be found here in the Daily Report (Fulton County, GA).