Analysis of Alito On Religious Freedom

Today's New Jersey Jewish News carries an interesting analysis of several of Supreme Court nominee Samuel Alito's Third Circuit opinions on issues of religious freedom. It concludes that Alito would likely expand Free Exercise Clause protections, but would weaken the Establishment Clause and erode the separation of church and state. The article quotes several experts, including Marc Stern, co-director of the Commission for Law and Social Action at the American Jewish Congress, who said "It is fair to say [Alito] is prepared to allow religious speakers equal access to the public forum, but he does not pay enough attention to the practical rights of people who are forced to listen."

Court Permits Suit For Prisoner To Add "Spiritual Name"

In State v. Green (Nov. 15, 2005), the Wisconsin Court of Appeals permitted a convicted murderer to proceed with his suit to obtain an amendment to his judgment of conviction so that it reflects his "common law spiritual name": "Prince Atum-Ra Uhuru Mutawakkil Aka, Norman C. Green JR." The plaintiff claimed that his request balances the interests of the state and his interests in freedom of speech, expression and religion.

Prison Substance Abuse Program OK Under Establishment Clause

In Gray v. Johnson, (WD Va., Nov. 9, 2005), a Virginia federal district court Magistrate recommended dismissing a prisoner's Establishment Clause challenge to the operation of a required substance abuse program at Botetourt Correctional Center. His opinion found that, in response to a 2002 court decision, prison authorities had adequately removed the religious content from its Therapeutic Community Program: "The TC Program at BCC appears to strike a constitutionally permissible balance between advancing and inhibiting religion by allowing inmates to express their own religious views without preaching to other inmates. There is no dispute that the purpose of the TC Program is secular..... Plaintiffs have not provided evidence that they have been forced to support or participate in religion. Isolated instances where religion is referenced do not rise to the level of rendering the entire TC Program contrary to constitutional standards." He also found that defendants have qualified immunity as to any claim for monetary damages.

Censorship of Religious Literature In Uzbekistan

Earlier this week, Forum 18 reported that in Uzbekistan, postal authorities routinely open parcels of religious books and magazines sent from abroad and send the publications to the state Religious Affairs Committee. The Committee decides whether or not to ban the title, writes to the sender and the failed recipient to explain why titles have been rejected, and sometimes returns them at Uzbek Post Office expense. Religious literature is also often confiscated by customs officers at Uzbekistan's land borders, and by police in raids on private homes. The Religious Affairs Committee permits limited quantities of religious literature to be printed or imported by religious communities that have a registered centralized organization.

RLUIPA Suit Filed To Expand Tent City

Yesterday's Seattle Times reports on an unusual RLUIPA case. The Seattle, Washington Housing and Resource Effort (SHARE) operates Tent City for homeless individuals unable to find places in traditional shelters. Tent City 4 is to be hosted, beginning today, by Bellevue, Washington's Temple B'nai Torah. However, Bellevue City Council has adopted strict provisions for homeless camps, regulating everything from identification checks to the number of toilets. Earlier this month, city Planning Director Matt Terry issued a permit for Tent City 4's stay at the Temple, but limited it to 60 days instead of the 90 days requested by the Temple. Also, because the Temple was not providing enough toilets and showers, the city limited Tent City to 40 people instead of the requested 100. (Full text of application and city's decision, and background information.)

Concerned about turning people away and uprooting them too soon, the Temple sued claiming that the Religious Land Use and Institutionalized Persons Act requires the city to grant the its requested permit. Supporting its religious freedom claim, James Mirel, the Temple's senior rabbi, said, "The whole idea of reaching out to the poor and needy is part of our Jewish tradition."

Newdow To Sue Over "In God We Trust"

Michael Newdow, best known for his litigation challenging the Pledge of Allegiance, is in the news again. The Sacramento Bee reports that he plans to file a lawsuit tomorrow in U.S. District Court in Sacramento, Calif., challenging the constitutionality of the national motto: "In God We Trust." Newdow wants to remove the phrase from U.S. currency and coins because he believes it violates the Establishment Clause. "We are the nation that gave to the world the establishment that government should not endorse religion and everybody should be what they want," Newdow said. "And of all the possible choices, we go with the motto of 'In God We Trust,' which totally contradicts that tradition."

Catholic Bishops Considering How To Treat Dissenting Politicians

According to the Associated Press, a Roman Catholic bishops' special task force on Catholic politicians who disagree with the Church on issues like abortion, euthanasia and same-sex marriage will confer with Democratic and Republican lawmakers in Washington this week. During the 2004 Presidential campaign, the issue of whether dissenting Catholic candidates should be barred from receiving Holy Communion became an important issue. Last year the U.S. bishops agreed that officeholders who support abortion rights or euthanasia are "cooperating in evil", but only individual bishops would decide whether they should receive communion. The new task force may have revised guidelines ready for the U.S. bishops' next meeting in June, in advance of the upcoming congressional campaign. Washington's Cardinal Theodore McCarrick who chairs the task force said the bishops were discussing with college presidents the possibility of denying awards and speech invitations to such candidates. Some bishops want a ban on all appearances while others would only ban speeches on topics where there is disagreement with church teaching.

Pope Assures Italy's Parliament Of Noninterference

On Monday, Pope Benedict XVI delivered a message to Italy's Parliament assuring it that the Roman Catholic Church will not interfere in affairs of the Italian state. ANSA reported that the Pope's message came as Parliament passed a budget provision excusing the Church from paying property tax on its real estate, even when it is used for commercial purposes. Humanists and atheists in Italy have protested governmental endorsements of the Church's teachings on family values and stem-cell research. In his message, Benedict also urged the Church and State to work together more closely on issues including "the protection of the human person" - a codeword for pro-life policies . The Church has criticized abortion but has ended its calls for the repeal of Italy's abortion laws .

This Week's New Law Review Articles

Recently published law review articles of interest from SmartCILP:

Margaret Chon & Donna E. Arzt, Walking While Muslim, 68 Law & Contemp. Problems 215-254 (2005)

Brent T. White, Reexamining Separation: The Construction of Separation of Religion and State In Post-War Japan, 22 UCLA Pacific Basin Law Jour. 29-88 (2004)

New Poll on Church-State Attitudes

A new national poll by Sacred Heart University finds that 80.8% of Americans support allowing the temporary display of religious symbols, such as mangers or menorahs, on public property during the upcoming holiday season. And 88.8% of the individuals surveyed said they were opposed to removing the phrase "under God" from the Pledge of Allegiance. The poll was conducted Oct. 3-12 and has a margin of error of 3%.

Representative Wants Repeal Of New Law Exempting Churches Using Illegal Aliens As Volunteers

The Denver Post reports today that Section 790 of the Agriculture, Rural Development, Food and Drug Administration, and Related Agencies Appropriations Act of 2006, signed by the President last week, exempts religious groups from prosecution if they use illegal immigrants as volunteer ministers or missionaries. Sen. Robert Bennett, R-Utah, added the language to the bill at the request of the Mormon Church. Now Colorado Representative Tom Tancredo says he will work to repeal the provision. He argues: "This provision opens a hole in our immigration system so big, a terrorist could drive a truck bomb through it. Terrorists in the United States have used religious organizations as fronts before. This provides legal cover for any church, synagogue, mosque or group that calls itself a religion to aid and abet illegals who may pose a national security threat." Bennett however said that the Department of Homeland Security had no problem with the statutory provision.

Cert. Denied In Case Upholding "In God We Trust" On Building

Reuters reports that on Monday, the U.S. Supreme Court denied certiorari in the case of Lambeth v. Board of Commissioners of Davidson County. Earlier this year, the Fourth Circuit had upheld the constitutionality of the inscription "In God We Trust" on the Davidson County, North Carolina Government Center. The Supreme Court refused to review the holding that the inscription was permissible under the Establishment Clause.

Dispute Over Possible Israeli Supreme Court Nominee

It is not only in the United States that a potential Supreme Court nominee's writings on law and religion can lead to trouble. In Israel, Haaretz today reports that Israeli Supreme Court President Aharon Barak announced his opposition to the appointment of Prof. Ruth Gavison to the Supreme Court because "she comes to the Supreme [Court] with an agenda." Gavison has been critical of Barak's judicial activism on the Court. Gavison is known for her work on Israeli public disagreements, and particularly for the Gavison-Medan Covenant which makes recommendations on religion-state questions. Gavison worked on the agreement, along with Rabbi Yaakov Medan, for three years. Gavison's critics dislike the fact that she compromised with religious Jews on some issues. For example, she agreed that religious divorce, based on strict Jewish religious law, should be mandated so as not to increase the number of mamzerim (bastards, as determined by religious law). In Israel, justices are appointed by the President of Israel upon the nomination of "the Judges' Nominations Committee".

ACLU Challenges Sales Tax Exemption For Bibles

A retired Atlanta librarian and a book store owner, represented by the ACLU of Georgia, are challenging the constitutionality of a Georgia statute (OCGA 48-8-3(16)) that grants a sales and use tax exemption to purchases of "Holy Bibles, testaments, and similar books commonly recognized as being Holy Scripture." Their lawsuit, filed Monday in U.S. District Court in Atlanta, argues that the Constituion's Establishment Clause requires that the exemption to be extended to other philosophical, religious and spiritual works as well. They argue that the current law has "the primary effect of endorsing religion in general and Judaism and Christianity in particular". The Atlanta Journal Constitution, reporting on the case, says that the State Revenue Commisssion has agreed that the exemption extends to purchases of the Quran, but has not had inquiries about other texts such as The Bhagavad Gita.

Massachusetts Senate Calls For Financial Filings By Churches

The Associated Press reports that last Wednesday the Massachusetts State Senate approved a bill requiring churches and other religious organizations to disclose their finances in filings with the state just as other nonprofit groups are now required to do. (See prior posting.) Religious groups, particularly the Catholic Church, oppose the measure as too costly and as violating the principle of separation of church and state. A spokesman for the Archdiocese of Boston claims it will cost the Church $3 million to comply with the auditing and filing requirements. The bill still needs the approval of the state's House of Representatives.

UPDATE: The Nov. 16 Boston Globe reported that the bill has run into opposition in the House after smaller religious groups said they feared becoming "collateral damage" in the Catholic church's clergy sexual abuse scandal. The vote on the bill , originally scheduled for Wednesday (the last scheduled day of formal debate for the year) was put off.

Saudi Teacher Sentenced To Jail and Lashes For Comments About Religion

Today's Arab News reports that a Saudi high school teacher accused of mocking religion was sentenced on Saturday to three years in prison and 750 lashes — 50 lashes per week for 15 weeks. The lashes are to be administered in the public market in the town of Al-Bikeriya in Al-Qassim. The chemistry teacher, Muhammad Al-Harbi, was sued by a number of 12th-grade students who had recently failed their monthly chemistry test and by some teachers who claimed Al-Harbi favored Jews and Christians, prevented students from performing ablutions, and studied witchcraft.

Al-Harbi's strong comments against terrorism have upset a number of fundamentalist Islamic studies teachers who often encouraged students to disobey Al-Harbi. Abdul Rahman Al-Lahem, Al-Harbi’s lawyer, said that the sentence was illegal because “Any case that has to do with sacrilege must be heard in a special religious court and not in a regular one.” He also said that the judge did not give Al-Harbi the right to interrogate the witnesses, and refused to recognize Al-Lahem as his lawyer. An appeal will be filed.

Hearings Held On Workplace Religious Freedom Act

The Boston Globe reported yesterday that the proposed Workplace Religious Freedom Act (H.R. 1445) that has been languishing for many years in Congress is now gaining some momentum. The bill would amend the 1964 Civil Rights Act by requiring employers to make an affirmative and bona fide effort to accommodate the religious practices of employees, unless doing so would create an undue hardship. The House Education and Workforce Committee held hearings on the bill last week. The full text of the testimony presented is available online. The bill has support from both conservatives and many liberals. However abortion rights and gay rights groups are now pressuring Democrats to oppose the bill.

Opponents fear that the bill would allow nurses and pharmacists to refuse on religious grounds to refuse to assist with abortion procedures or fill birth control prescriptions. However the bill excludes from its coverage accommodation for religious beliefs that prevent employees from fulfilling the ''essential functions'' of their jobs. Other opponents fear that the bill will protect harassment of gay colleagues by conservative Christians who oppose homosexuality on religious grounds, though the law does not appear to override any existing prohibitions on such conduct.

Army Chaplain Writes Of Soldiers' Religious Choices

An interesting Op Ed by Army Chaplain James Key was published over the week end in USA Today. Key is chaplain for the 530th Logistics Task Force Battalion stationed in Baghdad. He says in part:

U.S. soldiers' attendance at Bible study and chapel service is high, and religious material such as pamphlets, holy books and other religious paraphernalia disappear shortly after being placed on book shelves. In short, a significant number of soldiers are experiencing incredible spiritual growth. But — here's what's important — it is what they are choosing. Others are turning away. It is vital that they should be free to do that. The only real faith is a chosen faith. I and other chaplains are sensitive to that. We aim to make faith available but not mandatory. The U.S. military, more broadly, sometimes struggles to keep that distinction.

Swedish Jews, Muslims Issue Joint Statement On Animal Slaughter

Today's European Jewish Press reports on an unusual cooperative effort by the Jewish and Muslim communities of Sweden. Sweden is the only EU country in which the slaughter of animals according to the rules of kashrut and halal is legally prohibited as inhumane. Jews and Muslims argue that this restriction violates the protection of religious freedom found in the European Convention on Human Rights. On September 30, the Central Council for Jews in Sweden and the Muslim Council of Sweden issued a public joint statement advocating "after-cut stunning", a method of slaughter that would satisfy Jewish, and at least some Muslim, groups and would deal with the public's concerns with animal welfare. A report last April from the Swedish government's Animal Welfare Agency did not discuss this alternative.

New Church-State Publications

From Penguin Group, John Gibson of Fox News has just published The War On Christmas: How the Liberal Plat to Ban the Sacred Christian Holiday Is Worse Than You Thought. [Thanks to Jesus Politics blog for the information.]

New on SSRN:
Eduardo M. Penalver, Visiting Associate Professor of Law at Yale Law School, has posted Treating Religion as Speech: The Religion Clause Jurisprudence of Justice Stevens .

Kristi L. Bowman, Assistant Professor of Law at Drake Law School, has posted Seeing Government Purpose Through the Objective Observer's Eyes: The Evolution-Intelligent Design Debates. The article will appear in Vol. 29 of the Harvard Journal of Law and Public Policy.

Adam Samaha, Assistant Professor of Law at the University of Chicago Law School has posted Endorsement Retires: From Religious Symbols to Anti-Sorting Principles.