Supreme Court Hears Arguments On Depriving Prisoners of Protected Material

Yesterday, the U.S. Supreme Court heard arguments in the case of Beard v. Banks (04-1739), raising the question of whether state prisons may deprive inmates of access to newspapers and magazines as part of their punishment for violating prison rules. According to the AP's report on the case, Pennsylvania prison officials permit inmates in the high-security disciplinary unit to have access to religious materials, two paperback books of general interest, their legal documents and letters from family. But newspapers, magazines and personal photographs are banned. The Becket Fund For Religious Liberty had filed an amicus brief (full text) in the case arguing that if the Court permits fundamental rights to be taken away as punishment in order to modify behavior of prisoners, in the future officials might begin to deprive inmates of religious texts as well as secular ones.

In the decision below, the Third Circuit had held the restrictions unjustified. Circuit Judge (now Justice) Samuel Alito dissented, finding the restrictions constitutional.

New Scholarly Publications Of Interest

From SSRN:

• Neal D. Schuett, The Struggle to Define Jihad: A Religious Belief or Secular Philosophy?

From SmartCILP:

• Steven P. Aggergaard, Religion, Speech, and the Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, 32 Wm. Mitchell Law Review 719-767 (2006).
• Daniel A. Crane, A "Judeo-Christian" Argument For Privatizing Marriage, 27 Cardozo Law Review 1221-1259 (2006).
  

Florida Voucher Programs Face Uncertain Future

Yesterday's Lakeland, Florida Ledger reports on the latest skirmish on school vouchers in the Florida. In January the Florida Supreme Court struck down the state's Opportunity Scholarship Program on state constitutional grounds, holding that the program interfered with the state's providing a "uniform" school system. The Court did not reach the issue of whether the program violates the state constitution's prohibition on aid to religious organizations. (See prior posting.)

Now pro-voucher politicians, including Governor Jeb Bush, want an amendment to the state constitution to protect vouchers, claiming that otherwise the ACLU will bring suit to invalidate those voucher programs still in existence. However, the ACLU says it has no intention of challenging either the McKay Scholarship Plan for students with special needs or the Bright Futures program that provides funds for college students. The Florida House of Representatives has a proposed constitutional amendment under consideration, but nothing has happened in the Senate.

The House measure, HJR 1573, proposes a constitutional amendment that provides, in part: "the Legislature is not limited from enacting and funding for the people education programs, public or private, without regard to the religious nature of any provider or participant..." The amendment would also provide that "every child deserves an equal opportunity to receive a quality education regardless of his or her family's income, religion or race. Funding for quality education through classroom instruction is paramount, and the legislature shall ensure that funding provided for public schools shall primarily be used for classroom instruction rather than administrative expenditures."

John Kirtley, a Tampa millionaire who has supported vouchers, says that the ACLU's statement that it does not intend to challenge the McKay or Bright futures programs is a ruse. He thinks the group will wait until it is too late to get a constitutional amendment on the November ballot, and will then file suit against remaining voucher programs. The ACLU agrees that it is considering challenging a program approved in 2002 that funds private pre-school programs, including programs run by religious groups.

Rahman Case Sent Back to Prosecutors; Protests In Some Cities

Yesterday, Afghanistan's Supreme Court, under intense pressure from Western countries, dismissed the case against Abdul Rahman and sent it back to prosecutors to look into problems with the evidence against him, according to reports in yesterday's Guardian and today's Financial Times. Judge Ansarullah Maulavezada, who had been set to try Abdul Rahman for converting from Islam to Christianity, said the case had been dropped because of questions over Rahman's mental state and whether he held dual citizenship in Germany. Meanwhile, Rahman asked for a Bible, insisting he was sane and was willing to die for his faith.

Rahman is being moved to to Pul-i-Charki, a high security facility housing hundreds of Taliban convicts, after fellow prisoners threatened to kill him at Kabul's main jail. Deputy Attorney General Mohammed Eshaq Aloko said Rahman would be sent to the Aliabad hospital in Kabul for psychiatric evaluation and might be examined by U.S. or NATO doctors. He raised the possibility that Rahman might be sent abroad for treatment, opening the possibility of his being granted political asylum abroad.

Meanwhile, India's NDTV reports that thee has been a "massive uproar" across Pakistan in protest against the court's decision to dismiss the Rahman case. Thousands protested in the northern city of Mazar-e-Sharif.

In a related development, in India, the Supreme Court has before it a petition to dissolve all Islamic and Sharia courts in the country. Outlook India today reports that Advocate Vishwa Lochan Madan filed the complaint, alleging that the courts threaten the Indian judicial system.

UPDATE: A March 28 report from the Chicago Tribune says that Rahman has been released into the custody of the Afghan Independent Human Rights Commission and the United Nations mission in Afghanistan. Also, it appears that Monday's demonstrations in Mazar-e-Sharif involved hundreds, not thousands as reported above.

Coast Guard Policy On Religious Head Coverings May Change

This week, the Coast Guard's Uniform Board will meet in Washington. On its agenda, according to today's New York Times, is the issue of whether it will relax its restrictions on wearing of religious head coverings with Coast Guard Uniforms. The Times article recounts the problems faced by Jack Rosenberg, a Hasidic Jew who is a certified pilot and has enlisted in the Coast Guard. While his skullcap is concealed by his uniform hat worn outdoors, wearing his skullcap indoors would violate the Coast Guard General Uniform Policy (Sec. 2.A.1.) requiring that religious items must be concealed or worn only during religious services.

The other military services have a different rule. Back in 1986, in the case of Goldman v. Weinberger, the U.S. Supreme Court upheld Air Force regulations that prohibited an Orthodox Jewish Air Force officer from wearing his yarmulke indoors. However, Congress quickly responded and in 1987 enacted 10 USC 774 that permits members of the armed forces to wear "neat and conservative" items of religious apparel with their uniforms so long as the item does not interfere with performance of military duties. The Department of Defense promulgated regulations consistent with the provision. Department of Defense Directive DODD-1300.17 (Feb. 3, 1988). Since the Coast guard is under the Department of Homeland Security rather than the Department of Defense, DOD directives apparently do not apply to it, even though it would seem that 10 USC 774 also applies to the Coast Guard. 10 USC 101 defines "armed forces" for purposes of Title 10 to include the Coast Guard.

Inmate Claims Veganism Is a Religious Belief

Does belief in a vegan diet amount to a religion? That is the contention in a lawsuit filed against Sacramento, California's jail by Eric Taylor McDavid who is being held there on charges of conspiring to blow up Nimbus Dam and a nearby fish hatchery in Rancho Cordova, and a U.S. Forest Service genetics lab in Placerville. According to today's report from the Sacramento Bee, Mark Reichel, McDavid's attorney, argues that his client's beliefs are protected under the Religious Land Use and Institutionalized Persons Act. He claims his client's avoidance of animal products comes from "strongly, sincerely and firmly held beliefs, which are the same as a religious belief."

The sheriff's legal affairs spokesman, Lt. Scott Jones, says veganism is a lifestyle choice. He says the jail only makes dietary accommodations for medical reasons, and McDavid will get sufficient nutrition even if he only eats the acceptable portions of his meals. Also, inmates who keep kosher, halal and vegetarian diets can supplement their diets with items for sale in the jail's commissary. Jerry Read of the Corrections Standards Authority said his office does not regulate religious diets. He adds, "Case law changes too often. It comes up a lot - I don't know how many lawsuits there are, but enough that we can't keep up with it."

Prince Charles Speaks At Conservative Saudi University

As part of his tour of the Middle East, yesterday Britain's Prince Charles spoke to a small VIP audience at Imam Muhammad Saud Islamic University. The Associated Press reported on the visit. The University, which produces many of Saudi Arabia's Wahhabi clerics and Islamic judges, is seen by many as the center of Saudi conservatism. While Charles did not specifically mention the lack of religious freedom in Saudi Arabia, he did say: "Islam called Jews and Christians the peoples of the book because they, like Muslims, are a part of a religion of sacred texts." Because the sexes are segregated in Saudi Arabia, Camilla, the Duchess of Cornwall, had a different schedule from her husband. She visited the Nahda Philanthropic Society for Women, the first women's charity to be set up in Saudi Arabia.

Some Thoughts On The Rahman Case and the Issue of Religious Conversion

The fate in Afghanistan of Abdul Rahman, the Muslim convert to Christianity who is threatened with capital punishment, continues to draw worldwide attention. Less attention has been given, however, to the origins of the situation. Free Internet Press yesterday carried one of the most complete accounts. The Daily Telegraph , Reuters , Washington Times and the Baptist Standard all add some details. Rahman converted some 15 years ago while living in Pakistan and working for a Christian group that was offering aid to Afghan refugees. His conversion led his wife to obtain a divorce, and her family took custody of the couple's children. Rahman moved around, living in Germany and Belgium. Finally, having been denied asylum in Belgium, Rahman recently returned to Afghanistan and attempted to obtain custody of his two daughters. Since Afghan courts give custody to Muslims over apostates, Rahman's father-in-law, in order to retain custody, informed the court about Rahman's conversion.

Radio Free Afghanistan today posted a detailed analysis of the issue of apostasy under Islamic law. It's author, Joyce M. Davis, points out that not all Islamic scholars advocate the death penalty for those who leave the faith. Meanwhile, pressure on Afghan president Hamid Karzai continued. A letter in Pope Benedict XVI's name was sent to Karzai by Vatican Secretary of State Cardinal Angelo Sodano. BBC News today reports that the letter appealed to Karzai to respect freedom of conscience and religion guaranteed by the Afghan Constitution.

Conversion to other faiths is not a concern only to Islam or to Afghans. In the Indian state of Rajasthan, according to today's New India Press, the cabinet has just approved a bill that would impose a jail term of 2 to 5 years for "forceful" religious conversion. The bill would cover conversions through social boycotts, intimidating a person in the name of God, or any threat leading to personal losses. Encouraging a person to convert by promising financial assistance or personal profit would also violate the law. As Asia News reported earlier this week, India's largest political party, the Hindu nationalist Bharatiya Janata Party, has repeatedly argued that Christian missionaries practice "terrorism" against tribal communities. Last Tuesday, thousands of Christians, joined by Muslims and others, marched to protest growing violence against Christians in Rajisthan.

Courts Rule On When Cases Pose Theological Issues

Two cases that have recently become available involve the question of when adjudication of a dispute will involve the court in deciding issues of religious doctrine.

In Geiser v. International Church of the Foursquare Gospel, (Cal. Ct. App., March 22, 2006), a California appellate court, while upholding a volunteer assistant pastor’s claim against a church for battery, dismissed his claim for intentional infliction of emotional distress. The court held that the First Amendment requirement that a court not become involved in adjudicating issues of religious practice or orthodoxy precluded it from deciding the validity of the claim which was based on accusations that plaintiff made "unauthorized deliverances" and refused to "follow church policy". Deciding the case would involve the court in deciding the truth or falsity of defendant’s religious beliefs, or at least in making judgments about them. That, in turn, would place the court’s imprimatur on one version of church doctrine over another.

A case from Montana, decided some ten months ago, has just become available on LEXIS. In Raihl v. Passmore, 2005 Mont. Dist. LEXIS 1464 (Mont. Dist. Ct., July 21, 2005), a Montana trial court held that issues of negligent hiring, negligent supervision, breach of fiduciary duty and intentional infliction of emotional distress involving the Church of God could be decided without inquiring into religious teachings and beliefs. The court added: "to dismiss these causes of action on that basis would give a clear, green light to any church to conduct themselves in the same fashion given similar circumstances."

Recent Prisoner Free Exercise Cases

In Phipps v. Morgan, 2006 U.S. Dist. LEXIS 12199 (ED Wash., March 6, 2006) a Washington federal district judge adopted the Magistrate’s recommendations and upheld a state prison’s policy of serving ovo-lacto vegetarian meals to Muslim prisoners requesting a Halal diet. The Magistrate Judge’s opinion is at 2006 U.S. Dist. LEXIS 12198 (ED Wash., Jan. 13, 2006).

Following up an earlier decision permitting a Native American prisoner to move forward with his suit claiming he was intentionally denied the right to attend religious pipe and drum ceremonies, a Wisconsin federal district judge issued an opinion outlining in detail to the pro se litigant the exact procedures he must follow at trial and the elements that he must prove to win his case. Meyer v. Teslik, 2006 U.S. Dist. LEXIS 5700 (WD Wis., Feb. 10, 2006). (Earlier decision discussed here.)

In Blount v. Johnson, 2006 U.S. Dist. LEXIS 11961 WD Va., March 2, 2006), a Virginia federal district judge denied prison officials’ motion of summary judgment and sent to the Magistrate Judge for trial a Virginia state prisoner’s claims under the Free Exercise clause and RLUIPA. Inmate Donell Blount who was a member of the House of Yahweh was denied his request to be served the Common Fare Diet because officials determined that his religion did not require it. Subsequently the Virginia Department of Corrections added House of Yahweh to the list of religions requiring a special diet.

In Pepper v. Carroll, 2006 U.S. Dist. LEXIS 11907 (D. Del., March 22, 2006), a Delaware federal district court rather summarily reject a prisoner’s claim that his free exercise rights were infringed when he was not furnished a television set on which to watch church services. He was, at his own request, housed in the Security Housing Unit where televisions are not permitted.

In Stewart v. Barr, 2006 U.S. Dist. LEXIS 11516 (D. Wis., March 17, 2006), a Wisconsin federal district court granted summary judgment to prison authorities, finding they had shown a legitimate penological reason for their requirement that plaintiff, a prisoner claiming to be a Rastafarian, remove his dreadlocks before leaving the prison for medical treatment.

City Considering Law To Limit Pickets Protesting Jewish Divorce Concerns

Washington Jewish Week reports today that in Gaithersburg, Maryland, city council held a public hearing Monday night on an emergency ordinance that would restrict pickets in front of the house of Gaithersburg resident Sam Rosenbloom. The protesters are attempting to convince Rosenbloom to grant a "get" (Jewish bill of divorce) to his wife Sarah. The couple was granted a civil divorce almost six years ago, but Sam Rosenbloom refuses to give his ex-wife a get because she filed a criminal complaint against him. The complaint was dropped before coming to trial, but Sarah has refused to apologize and make restitution. Under Jewish law, a woman may not remarry until her husband gives her a "get".

Protests in front of Rosenbloom's home have been held for almost two years, and recently have been occurring on an almost weekly basis. They are organized by the New York-based Organization for the Resolution of Agunot. Pickets hope that signs and slogans such as "Unchain your wife" will "apply social pressure to free" Sarah Rosenbloom. The proposed ordinance (full text) would prohibit picketing by or in front of a private residence, though it would not ban marching in a residential area without stopping in front of a particular home. It would also not apply if the residence was also the occupant's sole place of business or if a public meeting were being held there. A similar law was upheld against constitutional attack by the U.S. Supreme Court in 1988 in Frisby v. Schultz. Protesters said that if the new law is passed, they will continue their protests in conformity with it. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Easter Bunny Banned From City Hall

Yesterday's Washington Post reports that Easter this year is bringing a mini-rerun of the "Christmas wars". In St. Paul, Minnesota, a secretary had placed a toy rabbit, pastel-colored eggs and a sign with the words "Happy Easter" in the lobby of City Council offices. But St. Paul's human rights director, Tyrone Terrill, asked that the decorations be removed, saying they could be offensive to non-Christians. That has upset City Council member Dave Thune. It has also distressed the Catholic League. Its director, Bill Donohue, issued a rather sardonic release protesting the action.

California Agency Refuses To Fund Historical Mission Repair

Yesterday's Modesto Bee reports that the California Culture and Historical Endowment has refused a funding request by the Friends of Mission San Miguel, citing a Feb. 23 Advisory Letter received from the California Attorney General's Office that the funding would violate California's constitution. The decision disappointed the California Missions Foundation, which has launched a $50 million campaign to help restore and preserve the state's 21 historic missions, 18 of which still are used for religious services. The Foundation had hoped that money from Proposition 40, passed in 2002 to help fund parks and cultural and historic restorations, could be used to repair the earthquake-damaged Mission San Miguel. However the 208-year old Mission is owned by the Catholic Church, and California's Constitution, Art. XVI, Sec. 5, prohibits the grant of anything in aid of any sectarian purpose and prohibits help to "support or sustain" a sectarian institution. Also California Constsitution, Art. I, Sec. 4, prohibits governmental preference of one religion over another. (See earlier related posting.)

University of Wisconsin Settles Suit On Dormitory Bible Studies

The University of Wisconsin yesterday agreed to settle a suit challenging a ban on resident assistants holding Bible study sessions in their dormitories. The settlement was announced by the Alliance Defense Fund that had filed the suit on behalf of RA Lance Steiger. The Consent Order says that the University has implemented a new policy as of March 10, 2006, that allows Resident Assistants to participate in, organize, and lead any meetings or other activities (including Bible Studies), in their rooms, floors or residence halls, or anywhere else on campus, to the same extent as other students. The University agreed to pay plaintiff Steiger nominal damages of $1 as well as attorneys' fees and costs of $2500. (See prior posting.)

Indonesia To Adopt New Decree On Houses of Worship

In Indonesia, the government is ready to promulgate a new ministerial decree on houses of worship, according to today's Jakarta Post. This will replace a 1969 decree that required allowed the local populace to veto a new congregation. That meant that Christians in predominantly Muslim areas often had difficulty getting approval to build churches. Under the new decree, local governments can no longer escape their obligation to provide houses of worship for religious minorities. New places of worship must have congregations of at least 90, and at least 60 people of other faiths living in the area must consent. The congregation must also obtain a building permit from the local administration and the Communication Forum for Religious Harmony (FKUB). However, unlike in the previous decree, if locals object but consent is granted by the administration and the FKUB, local bodies are required to find an alternate space for the church. Christians remain dissatisfied with the new decree, seeking lower threshold numbers for congregants and local resident approval. 42 mostly Christian legislators in the House of Representatives have filed a petition to reject the new decree.

Study On Attitudes Toward Atheists In US

UMN News reports that three University of Minnesota sociology faculty have authored a study on public attitudes toward atheists, to be published in the April issue of the American Sociological Review. They find that Americans rate atheists below Muslims, recent immigrants, gays and lesbians and other minority groups in "sharing their vision of American society." Atheists are also the minority group most Americans are least willing to allow their children to marry. Many of the study’s telephone respondents associated atheism with evils ranging from criminal behavior to rampant materialism and cultural elitism. Reacting to the study, Ellen Johnson, President of American Atheists, said that one reason for the findings is the unconstitutional promotion of religion by government and political leaders. [Thanks to Nick Gillard-Byers and Larry Mundinger for the leads.]

Secy. Hughes Speaks At Conference On Faith and Service

Wednesday, Karen Hughes, U.S. Under Secretary of State for Public Diplomacy and Public Affairs, spoke (full text) in Washington at the first International Conference on Faith and Service. Here are some excerpts:

[S]ome might question why a government official, especially one from a nation that prides itself on the separation of church and state, would be asked to speak at a conference on interfaith dialogue.... Why would a government -- a United States Government official convene a meeting of religious leaders? And the answer is both simple and profound. It's because faith plays such a critical role in the lives of so many people across our world. Governments would be foolish to ignore its power and impact or to leave the floor only to those who seek to use religion as a force to divide or destroy....

Voices from our diverse faith communities, such as those represented here today, are often the most credible voices to say that terror and violence are not a matter of religion at all. When you think about it in its starkest terms, urging young people to strap bombs on their bodies, to kill themselves, and in the process try to kill as many other innocents as possible, is not a legitimate tenet of any faith....

Promoting religious freedom is a central element of the President's agenda for democracy and freedom across our world.... We must not rest in this effort, nor ever forget those who are persecuted for their beliefs and denied the rights of conscience that we sometimes take for granted here in the United States.

Afghan Charge Against Muslim Convert Draws U.S. Criticism

The possibility that a Muslim convert to Christianity in Afghanistan might be sentenced to death by Afghan courts has led to widespread protests in the West and a defensive reaction from Afghan officials. In a speech yesterday in Wheeling, West Virginia, (full text) President George W. Bush said of Afghanistan:

We expect them to honor the universal principle of freedom. I'm troubled when I hear -- deeply troubled when I hear the fact that a person who has converted away from Islam may be held to account. That's not the universal application of the values that I talked about. Look forward to working with the government of that country to make sure that people are protected in their capacity to worship.

Later, in answer to a question, the President said: "It is deeply troubling that a country we helped liberate would hold a person to account because they chose a particular religion over another.... [W]e can solve this problem by working closely with the government that we've got contacts with -- and will. We'll deal with this issue diplomatically and remind people that there is something as universal as being able to choose religion."

Canadian Prime Minister Stephen Harper called President Karzai yesterday to express deep concern, according to the Ottawa Star.

The Washington-based Council on American-Islamic Relations (CAIR) also issued an unusually strong statement on the matter:

Religious decisions should be matters of personal choice, not a cause for state intervention. Faith imposed by force is not true belief, but coercion. Islam has no need to compel belief in its divine truth.... We urge the government of Afghanistan to order the immediate release of Mr. Abdul Rahman.

Afghanistan responded by saying that the matter would be handled by its courts. Reuters yesterday reported that Mahaiuddin Baluch, a religious affairs advisor to President Hamid Karzai, said: "We in Afghanistan have the prosecutor who observes the law and the court that executes it. Whatever the court orders will be executed as the court is independent."

ISN Security Watch today has an excellent analysis of the constitutional issues and political pressures inside Afghanistan. (See prior related postings, 1, 2.)

Supreme Court Arguments Yesterday In Procedural Prisoner Free Exercise Case

Yesterday, the U.S. Supreme Court heard arguments in Woodford v. Ngo, a case involving procedural questions, but growing out of the alleged denial of religious rights to a California prisoner. As described by the Associated Press, Ngo was punished for alleged inappropriate activity with volunteer priests. He was barred from Bible study and from corresponding with a Catholic chapel volunteer after the alleged incidents at San Quentin State Prison in 2000. Ngo filed a grievance with prison officials, but it was denied because he missed the 15-day deadline for grievances allowed by the California Department of Corrections and Rehabilitation. Ngo then sued in federal court claiming a violation of his First Amendment right to free exercise of religion, and alleging that prison officials defamed him by saying he engaged in sexual relations with volunteer Catholic priests.

At issue before the Supreme Court was whether inmates should be able to file federal lawsuits even if they miss state filing deadlines. Ngo's attorney, Meier Feder, argued that Congress never intended to block valid inmate complaints in passing the 1996 Prison Litigation Reform Act. Attorneys for California and for the Bush administration argued that in enacting 42 USC Sec. 1997e, Congress wanted inmates to comply with state prison grievance procedures, including deadlines. Northwestern University has a further summary of the case, along with links to the 9th Circuit's opinion below and to the briefs filed in the Supreme Court.

2nd Circuit Holds Asylum Applicant Need Not Have Religious Knowledge

In Rizal v. Gonzales, (2nd Cir., March 21, 2006), the U.S. Second Circuit Court of Appeals reversed an immigration judge's denial of asylum to an Indonesian citizen who claimed that he would be persecuted in Indonesia because of his Christian beliefs. The Washington Post today reports on the case. Rizal's asylum claim had been rejected because he incorrectly answered a number of questions about Christianity. He said Jesus was crucified in Bethlehem, not Jerusalem, and he did not know which disciples wrote the New Testament. Asked who prepared the Ten Commandments, Rizal answered Jesus instead of Moses. But the Court of Appeals said that people who identify with a religion but lack detailed knowledge about it can still be persecuted for their religious affiliation.