Recent Articles On the Constitution, Law and Religion

From SmartCILP:
David B. Kopel, The Catholic Second Amendment, 29 Hamline Law Review 519-565 (2006).

Pat Nolan & Marguerite Telford, Indifferent No More: People of Faith Mobilize to End Prison Rape, 32 Journal of Legislation 129-141 (2006).

From SSRN:
Richard W. Garnett IV & Joshua D. Dunlap, Taking Accommodation Seriously: Religious Freedom and the O Centro Case (2006 Cato Supreme Court Review 257 ).

From Bepress:
Robert J. Delahunty, Varied Carols: Legislative Prayer in a Pluralist Polity (August 24, 2006).

University Of Wisconsin Refuses To Recognize Catholic Foundation As Student Group

On Friday, the University of Wisconsin- Madison informed the UW Roman Catholic Foundation that it would not be recognized as a student organization because it is not controlled and directed by students as required by University rules. Only 3 of the group's 12 board members are students. The Associated Press on Saturday reported that the group is the oldest and largest religious organization on campus. The University's e-mail was received just as the Foundation was filing a complaint with the U.S. Department of Justice alleging that the University has violated court decisions requiring funding of student groups without regard to their viewpoints.

Last May, the University's chancellor reluctantly recommended approval $145,000 for the Foundation even though he believed that use of the funds for an evangelical ministry, prayer groups and Lenten booklets would violate the Establishment Clause. Recently the University applied the rule requiring students to control recognized organizations to deny recognition to the Knights of Columbus as a student group. (See prior posting.)

Religion In Russian Schools

Monday's Moscow Times carries an interesting article on the teaching of Orthodox culture in Russian schools. Schools in the Moscow region have been experimenting with the classes for six years. However no clear guidelines are in place for what can be taught. The article discusses one teacher's course that covers specific holidays in the Russian Orthodox Church.

Vermont Supreme Court Rejects Free Exercise Argument In License Suspension

In Office of Child Support ex rel. Stanzione, (Vt. Sup. Ct., Sept. 13, 2006), the Vermont Supreme Court took only one week after oral arguments to decide that the mother, whose drivers license was suspended for nonpayment of child support, had not made a threshold showing that suspending her drivers' license would substantially burden her free exercise of religion.

Church Land Use Denial Arises In Claim Against Army

A recent decision by the United States Court of Federal Claims raises a church land use issue in an unusual setting. Grace Church of Los Alamitos, California was refused a conditional use permit for property it wished to purchase located next to a military air base. The current owners of the property, whose contract to sell the property to Grace Church was conditioned on the Church obtaining a conditional use permit, claimed that a United States Army study of property near the airfield, issued in violation of applicable regulations, caused unfounded public safety concerns by warning that the property was near the airfield's crash zone. The House of Representatives, pursuant to 28 USC 1492, referred the claim to the Court. In Davis v. United States (Ct. Fed. Cl., Sept. 15, 2006), the court found that the Army's study was not a substantial factor in the city's denial of a permit. The city was already aware of the problems flagged by the report. So that there were no damages caused by the Army report and the owners therefore had no valid claim against the United States.

Recalled Trustee's Challenge To Pledge of Allegiance Fails

Habecker v. Town of Estes Park, Colorado (D. CO, Sept. 21, 2006), is a challenge to the words "under God" in the Pledge of Allegiance that arose in a rather unusual context. David Habecker, a town trustee was recalled in an election in which the dominant issue was whether citizens wished to be represented by an official who refused to stand and recite the Pledge of Allegiance at trustees' meetings. A Colorado federal district court dismissed the case on standing grounds because it was not the Pledge that caused Habecker's recall, he was not forced to recite the Pledge, and a declaratory judgment regarding the Pledge would not remedy his recall. It found that the case was moot because Habecker was no longer in office. The court went on to find that even if the case were justiciable, since trustees' meetings could be opened with an explicit prayer, there was no constitutional problem with opening the meetings with the Pledge. Finally the court held that the action of citizens in circulating a petition and voting for Habecker's recall was private action, not state action.

A report on the case in Saturday's Rocky Mountain News points out that the U.S. Justice Department had entered the case on the side of the town, arguing that the Pledge is merely a patriotic exercise.

Bush Addresses Muslims On Ramadan and In Radio Address

This week end, President Bush sent two complementary messages to Muslims and the Muslim world. On Friday, President Bush extended greetings to Muslims in America and around the world who are observing Ramadan. He said: "Ramadan and the upcoming holiday seasons are a good time to remember the common values that bind us together. Our society is enriched by our Muslim citizens whose commitment to faith reminds us of the gift of religious freedom in our country."

The next day in his weekly radio address, the President said that Muslim nations are bound together with other civilized nations in the struggle between moderation and extremism throughout the Middle East.

NAACP Says Clinic Closing For Jewish Sabbath Is Discriminatory

Last week, the Lower Hudson Journal News reported that the Spring Valley, New York chapter of the NAACP has filed a complaint with the Rockland County Commission on Human Rights alleging that a local medical and dental clinic is guilty of religious discrimination because it closes on Saturday to observe the Jewish Sabbath. The complaint alleges that this results in the clinic operators imposing their religious beliefs on others. Apparently the clinic has receive millions of dollars in federal funding. The complaint filed with the Human Rights Commission says that 80% of the clinic's patients are Black or Hispanic and would find it convenient to be able to visit the clinic on Saturdays rather than having to take off work for an appointment. [Thanks to Eugene Volokh via Religionlaw for the lead.]

UPDATE: Here is the full text of the complaint filed with the State Division of Human Rights by the NAACP, courtesy of Eugene Volokh.

President's Greetings As Rosh Hashanah Begins

The holiday of Rosh Hashanah, the Jewish New Year, begins at sundown this evening. Yesterday President Bush issued a Presidential Message sending greetings to those celebrating the holiday. He said in part: "As you begin the Days of Awe, your faith in the Almighty reminds us of the gift of religious freedom in our country and helps make the world a more hopeful place."

Detroit Muslims Say Charity Harassed Again This Ramadan

In Detroit on Monday, federal agents with the Joint Terrorism Task Force executed search warrants on the offices of the Muslim charity Life for Relief and Development, as well as on homes and an office of three others connected with the charity. This morning's Detroit Free Press reports that Muslim leaders charge that there is a pattern of government harassment of Islamic charities each year near the start of the month of Ramadan. An FBI spokesman denied the charges, saying that the FBI "does not target people because of their religion." The raid may be connected to work the charity did in Iraq before the 2003 Iraq war.

No Establishment Clause Problem With Minnesota Criminal Sexual Conduct Law

In State v. Bussmann, (MN Ct. App., Sept. 19, 2006), a Minnesota court of appeals rejected an Establishment Clause challenge to a statute that provides higher penalties for criminal sexual conduct that takes place "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private." The court relied on a 2003 decision in rejecting the argument that the statute excessively entangles religious doctrine with state law.

Riots After Indonesia Executes Three Catholics

In Palu, Indonesia, according to the Associated Press, three Roman Catholics convicted of instigating attacks on Muslims were executed by a firing squad on Thursday. Human rights workers have charged that the executed men were not the leaders of the attacks, and that their 2001 trial was a sham. Following the execution, mobs of Christians torched cars, blockaded roads and looted Muslim-owned shops. Some 200 inmates escaped from a jail assaulted by the mobs in the town of Atambua.

Church Votes To Fight IRS Summons

All Saints Episcopal Church in Pasadena, California announced at a news conference yesterday that its 26-member vestry has voted unanimously to fight the IRS' summonses issued last week that call for various documents and an interview with the rector regarding an anti-war sermon by a guest preacher just before the 2004 Presidential election. (See prior posting.) The Associated Press yesterday reported that the church's rector, Rev. Ed Bacon, was joined at his news conference by 40 representatives of mosques, synagogues and other churches. Santa Monica Rabbi Neil Comess-Daniels urged supporters of all faiths contribute to funds to help All Saints with its legal costs. Comess-Daniels made the first pledge at the news conference.

House Resolution Condemns Repression of Bahais By Iran

On Tuesday the U.S. House of Representatives overwhelmingly supported H. Con. Res. 415, condemning the repression of the Iranian Baha'i community and calling for the emancipation of Iranian Baha'is. The vote was 392 in favor, 2 against, and 37 members not voting.

Funeral Picketers Become Kansas Election Issue

Rev. Fred Phelps Sr. and his Westboro Baptist Church in Topeka, Kansas have become an issue in the hard-fought race for Kansas Attorney General, according to yesterday's Associated Press. Republican incumbent Phill Kline is pressing for legislation to toughen Kansas' law that prohibits demonstrations at funerals. Westboro Baptist Church members picket soldiers' funerals, claiming that deaths in Iraq and Afghanistan are God's punishment for the United States tolerating homosexuality. However now it turns out that Rev. Phelps son donated $500 to Kline's campaign and was subsequently invited to a Kline fundraiser. Kline says he did not know of Phelps' connections with Westboro Baptist. Kline later gave the $500 to the Patriot Guard, a group that protests against the Phelpses. Kline said that the subsequent invitation to Phelps , if it happened, was a clerical error.

9th Circuit OK's Exclusion Of Worship Services From Library Rooms

Yesterday in Faith Center Church Evangelistic Ministries v. Glover, (9th Cir., Sept. 20, 2006), a 3-judge panel in the 9th Circuit wrote 3 opinions, and by a vote of 2-1 decided that a Contra Costa County public library could make its meeting rooms available for "meetings, programs, or activities of educational, cultural or community interest", while excluding their use for "religious services". The majority opinion by Judge Paez focused on cases that permit the government to draw reasonable, viewpoint neutral distinctions on who can use a "limited public forum". He concluded that: "Religious worship ... is not a viewpoint, but a category of discussion...." Excluding religious discussion of topics on which secular perspectives exist is not permissible. Excluding pure worship is.

A dissent by Judge Tallman argued that any attempt by the County to distinguish worship from other kinds of religious speech would create excessive government entanglement with religion, in violation of the Establishment Clause.

However, the most interesting reading was Judge Karlton's concurring opinion. He wrote:

I concur in Judge Paez's well-reasoned opinion, which reflects the sorry state of the law. I write separately to express my dismay at that sorry state.

This should be a simple case it asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question....

[Prior cases] turn on the High Court's purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment.... [R]eligious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion.... Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.... That threat is not merely historic. One need only look about the world to see that danger in play.

The San Jose Mercury News covers the decision. (Also see prior related posting.)

Study of Black Churches and Faith-Based Initiative

Last Tuesday, the Joint Center for Political and Economic Studies published a report on Black churches and President Bush's Faith-Based Initiative. A release by the Center summarizes the study's major findings. Only 2.4% of the Black churches surveyed received any faith-based funding. Interestingly, of the Black churches that did receive such funding 47% were from the Northeast, and only 26% were from southern states. African-American churches in states that voted Democratic in the last two presidential elections were more likely to get faith-based grants than were churches in states that voted Republican. The study found that liberal and progressive churches were more interested in participating in the Faith Based initiative than were conservative ones, even though conservative churches viewed the Faith Based Initiative more favorably. And the report concluded that there had been insufficient outreach to Black churches about the Faith Based Initiative. Newhouse Newspapers yesterday reported on the study.

Pope Again Tries To Explain His Remarks About Islam

Speaking this week at his Wednesday audience in St. Peter's Square, Pope Benedict XVI again attempted to clarify his controversial use of a quotation about Islam from a 14th century Byzantine emperor in remarks he made last week at the University of Regensburg in Germany. Zenit reports the text of his Wednesday statement:

For the careful reader of my text, it is clear that I did not wish at any time to make my own the negative words uttered by the medieval emperor in this dialogue and that its controversial content does not express my personal conviction.... I wished to invite the Christian faith to dialogue with the modern world and to dialogue with all cultures and religions.

He said that he has tried to make clear his

deep respect for the great religions, in particular for Muslims -- who 'adore the one God' and with whom we are engaged in "preserving and promoting together for all mankind social justice, moral values, peace and freedom."

Two Decisions On Jurisdiction Over Religious Employment Disputes

Two cases involving the constitutional limits on federal court jurisdiction over employment decisions made by religious authorities were handed down this week:

In Vann v. Guildfield Missionary Baptist Church, 2006 U.S. Dist. LEXIS 66947 (WD VA, Sept. 19, 2006), a Virginia federal district court permitted the minister of a church to proceed with his claim that his dismissal by the deacon of his church violated the church's bylaws. The bylaws provided for the minister's dismissal only by a vote of a majority of the church's members. The court said that since no member vote was ever taken, "the Church itself has never acted. Thus, I have subject matter jurisdiction to consider this case because the decision to fire Vann .... was not the decision of a religious entity or church. As a result, that decision is not constitutionally protected from judicial review."

Maruani v. AER Services, 2006 U.S. Dist. LEXIS 66789 (D MN, Sept. 18, 2006), involved the dismissal of Leo Maruani , a shochet (kosher butcher), from the employ of AER Services, a commercial business that provides slaughtering services for companies that sell kosher meat products. He was dismissed after the rabbi supervising the plant in which he worked objected to the fact that Maruani was not leading a visibly pious life because he did not live within walking distance of an Orthodox synagogue.

The court dismissed Maruani's claim that he was discriminated against because of his religion in violation of the Minnesota Human Rights Act. He alleged that the supervising rabbis placed religious requirements upon him that they did not impose on other shochtim. The court held: "An examination of the gradations in the rules of Kashruth or severity with which the rabbis enforced those rules is precisely the type of religious-based claim the Court is forbidden from entertaining." However the court permitted Maruani to proceed with claims that the rabbis' religious objections were not the real reason for his dismissal, and that the real reasons violated Minnesota's Whistleblower Act and its Workers Compensation Act.

Michigan Gubernatorial Candidate Favors Teaching Intelligent Design

During an interview on educational issues with the Associated Press on Tuesday, Michigan Republican gubernatorial candidate Dick DeVos said he favors permitting, but not requiring, the teaching of Intelligent Design in Michigan public schools. He said: "I would like to see the ideas of intelligent design that many scientists are now suggesting is a very viable alternative theory. That theory and others that would be considered credible would expose our students to more ideas, not less."