Alito Calls For Continued Religious Tolerance In U.S.

U.S. Supreme Court Justice Samuel Alito used his appearance as commencement speaker at Seton Hall University Law School on Friday to make a plea for continued religious tolerance in the United States, in the face of growing intolerance around the world. He emphasized the importance of Article VI of the U.S. Constitution that bars any religious test for federal office, saying we must not return to a time when it was felt that people of some faiths were unfit for public office. The Associated Press reported on the speech. Alito taught as an adjunct faculty member at Seton Hall from 1999 to 2004. (Seton Hall press release.)

RLUIPA Suit Challenges Florida City's Zoning Law As Discriminatory

The South Florida Sun-Sentinel reports that a suit under RLUIPA filed Friday in a Florida federal district court challenges Cooper City, Florida's ban on locating houses of worship in commercial areas. Brought by Chabad of Nova , the suit alleges that the city's zoning laws illegally discriminate against religious organizations. Chabad says the city is attempting to protect its tax base by keeping tax-exempt houses of worship out of commercial areas. For 30 years, the city kept houses of worship in the western, agriculturally zoned area of the city. Last October, it amended its law to allow houses of worship in office parks and recreational facilities, but it still bans them from commercial areas where new congregations often like to find store fronts in which to locate.

Recent Prisoner Free Exercise Decisions In District and Circuit Courts

In Boles v. Neet, (10th Cir., May 24, 2007), the U.S. 10th Circuit Court of Appeals refused to dismiss a suit filed against the warden of a Colorado correctional facility by an Orthodox Jewish prisoner who was kept from leaving the facility for eye surgery because he insisted on wearing his yarmulke and tallit katan. The court said that plaintiff adequately demonstrated that prison authorities substantially burdened his sincerely held religious beliefs, and defendant made no showing of penological interests justifying the restriction. The warden has claimed qualified immunity as a defense.

In Harris v. N.C.P. Dept, 2007 U.S. Dist. LEXIS 37902 (ED NY, May 24, 2007), a New York federal district court held that a prisoner's pro se complaint, liberally construed, may raise a legitimate free exercise claim. Plaintiff claimed he was denied food on one or more occasions because he failed to interrupt his prayers when directed to do so by correctional officers.

In Miller v. Sullivan, 2007 U.S. Dist. LEXIS 37318 (ED CA, May 8, 2007), a California federal Magistrate Judge dismissed, with leave to amend, a prisoner's free exercise claim because it did not allege the nature of the infringement of his religious activity nor what defendants had done to burden his free exercise.

In Livingston v. Griffin, 2007 U.S. Dist. LEXIS 36941 (ND NY, May 21, 2007), a Rastafarian prisoner won a partial victory in his claims that his free exercise rights had been violated by prison authorities. The court rejected his claim that his religious beliefs were substantially burdened when authorities attempted to force him to be handcuffed to, and sit for several hours beside, another inmate who he believed to be a homosexual or transsexual. However the court allowed plaintiff to proceed with his claim that he was wrongfully denied alternative religious meals by prison officials.

In El-Tabech v. Clarke, 2007 U.S. Dist. LEXIS 36719 (D NE, May 18, 2007), a Muslim prisoner filed a claims under the First Amendment and RLUIPA alleging that "his religion requires that he adhere to a Halal diet: eating only permitted kosher food". A Nebraska federal district court refused to grant defendants' motion for summary judgment, finding that genuine issues of material fact exist concerning the allegations of cost and security in affording plaintiff a kosher diet. It similarly allowed plaintiff to proceed with his claims that his religious beliefs require additional showers and adherence to a prayer schedule.

In Dicks v. Binding Together, Inc., 2007 U.S. Dist. LEXIS 36615 (SD NY, May 18, 2007), a New York federal district court allowed an inmate in a work release program to move ahead with his Free Exercise and state law challenges to the refusal by authorities to grant him a pass to attend Pentecostal church services.

In Stewart v. Canteen Food Services, 2007 U.S. Dist. LEXIS 36396 (D AZ, May 16, 2007), an Arizona federal district judge refused to grant a motion by defendant to reconsider an earlier decision permitting a prisoner to move ahead with a free exercise claim that he was not consistently served a lacto-vegetarian diet. It also refused to grant plaintiff's motion to re-instate certain of his claims that had been previously dismissed.

Free Execise Challenge to Sex-Offender Treatment Rejected By Court

In Washington State v. Shaughnessy, (WA Ct. App., May 22, 2007), a Washington state appellate court rejected a claim by a convicted sexual offender, whose supsended sentence was revoked, that his free exercise rights protected by the state constitution had been violated. James Shaughnessy had been sentenced to complete three years in sex-offender treatment, along with other restrictions, as a condition of the suspended sentence. After completing only a few sessions, Shaughnessy fled to Mexico. When he was finally sent back to the U.S., he claimed that the only reason he had fled was that his treatment provider would not let him bring a Bible to his treatment sessions and allowed him to attend church only if he avoided children there. The court held that the reason for revoking Shaughnessy's sentence was that he fled to Mexico. He could have gone to court to challenge the conditions imposed or could have requested a change in treatment providers. The court held that the state did not burden Shaughnessy's religious practices because the conduct he complained of came from his private treatment provider, and the court had not required that particular person be used.

Accommodating Muslim Prayer Is Growing Issue

Accommodation of Muslims who wish to take time at school or work to pray has become a growing issue. The U.S. Department of Justice reports in its May Newsletter, Religious Freedom in Focus, that earlier this month it settled a complaint by Muslim students in the Lewisville Texas Independent School District who wanted to use an empty classroom during lunch to pray. Under the settlement agreement, the school agreed that the Muslim students could use space in a common area outside the cafeteria for their mid-day prayers.

Meanwhile, in Omaha, Nebraska, 70 out of 120 Somali meatpacking workers have now returned to work after they quit their jobs because they were not given sufficient time off to pray at sundown. The company has agreed to accommodate workers as much as they can within the terms of the union contract. The Associated Press says that, as summer arrives, later sundowns may create problems, however. The company is concerned that they will need to completely close down production if too many workers are off the assembly line at the same time for prayer.

Kansas Legislature Passes Bill Urging Faith-Based Prisoner Re-Entry Programs

The Kansas House of Representatives and Senate this week have both passed HB2101, the Transformational Justice Act. The Act broadly encourages re-entry programs for prisoners to help then find jobs, housing and medical treatment upon release. However, the Act contains a number of provisions encouraging provision of these services by faith-based organizations. It directs the Transformational Interagency Task Force to seek partnerships with and communicate regularly with faith-based and community organizations. It also sets up a revolving fund for the Office of Faith-Based initiatives to use for grants to volunteer organizations including, but not limited to, faith-based organizations to provide health, educational or vocational training and programs that assist the reintegration efforts for offenders.

Reporting on the bill following House passage on Tuesday, the Associated Press quoted two representatives who are critical of the bill using state funds for faith-based programs. [Thanks to Blog from the Capital for the lead.]

Saudis Enforce Ban On Non-Muslims In Mecca

World Net Daily today reported on the continuing enforcement by Saudi Arabia of a ban on non-Muslims entering the city of Mecca and having access to the Grand Mosque. A Sri Lankan Christian, Nirosh Kamanda, came to Saudi Arabia to work as a truck driver, and secretly moved to Mecca to sell goods near the Grand Mosque. He was arrested after the Saudi Expatriates Monitoring Committee used a high-tech finger-print identification system to find him.

Alabama Supreme Court Remands Case On Inspecting Church Records

In Ex Parte Board of Trustees/ Directors and/or Deacons of Old Elam Baptist Church, 2007 Ala. LEXIS 92 (May 25, 2007), the Alabama Supreme Court issued a writ of mandamus directing a trial court to vacate its order permitting inspection of a church's business and financial records. A suit seeking the records was brought under provisions of the state’s non-profit corporation law that permits inspection of books and records by church members.

Defendants claim that plaintiffs are no longer members of the church, and so are not entitled to inspection. In face of the lawsuit by plaintiffs, the Church had amended its Standard Operating Procedures (SOP's) to provide that anyone who is a party to a lawsuit against the church or its leaders shall be removed from the membership rolls. The SOP's also provided that the pastor could place members on probation. However the court refused to totally dismiss the case and remanded it to the trial court for it to determine whether the SOP's are in fact the bylaws of the church, and, if they are, whether the relevant amendments to them on expulsion of members were properly adopted.

Justice See, dissenting in part, said that the First Amendment precludes civil courts from inquiring into ecclesiastical concerns of the Church. That includes inquiry on whether those acting on behalf of the Church had the authority to terminate plaintiffs' membership.

UPDATE: On Oct. 5 2007, the Alabama Supreme Court denied a petition for rehearing, with Justice Parker writing an opinion concurring specially in the denial. 2007 Ala. LEXIS 208.

ROTC Teaching Guide Challenged On Church-State Content

Friday's Forward reports that Mikey Weinstein, who has been battling with the military over religious discrimination and Christian proselytizing in the armed forces, now has a new target. He says that an educational guide distributed to high schools for use in the Junior ROTC program recommends that students read an excerpt from an article that questions the usual understanding of separation of church and state. The excerpt argues that Thomas Jefferson’s 1802 Letter to the Danbury Baptists was intended to only keep government out of religious affairs, and not keep religion out of government.

The article also reports that Weinstein is formulating a far-reaching litigation strategy for his Military Religious Freedom Foundation, and discusses Weinstein’s confrontational style that has led some organizations that might otherwise be his natural allies to tread cautiously.

Kansas AG Files Suit For Ruling On Anti-Funeral Demonstration Law

In March, the Kansas legislature passed a bill banning demonstrations within 150 feet of a funeral and allowing family members to sue demonstrators for defamation. However the bill provides that it will not take effect until the state Supreme Court or a federal court rules that it is constitutional. (See prior posting.) On Thursday, according to the Kansas City Star, Kansas Attorney General Paul Morrison filed the required suit in the Kansas Supreme Court. Like many other states, Kansas aimed its law at pickets from the Westboro Baptist Church known for picketing veterans’ funerals with signs accusing America of harboring homosexuals.

Iowa State Coach Wants Football Team Chaplain; Faculty Object

Iowa State University's football coach, Gene Chizik, wants to hire an official chaplain for the team, to be paid for from private donations, according to reports from the AP and the Iowa State Daily. Chizik says student athletes are under a great deal of pressure and need access to spiritual guidance. Dave Turnball, area director for the Iowa Fellowship of Christian Athletes, reportedly has begun raising funds to support the idea. However, over 100 ISU faculty members have signed a petition opposing the plan. They say it is improper for a public university to hire a chaplain, and that the proposal under consideration favors Christianity over other religions.

Masachusetts High Court Dismisses Challenge To Catholic Church Closing

In Maffei v. Roman Catholic Archbishop of Boston, (MA Sup. Jud. Ct., May 25, 2007), the Massachusetts Supreme Judicial Court dismissed a challenge to the decision of the Archdiocese of Boston to close and sell off St. James Church in Wellesley. St. James was built on property donated to the Archdiocese by the Maffei family. Plaintiffs claim the Archdiocese had agreed that St. James would be maintained in perpetuity in honor of Waldo Maffei's father, and if not the property would revert to the Maffeis. Another plaintiff sued to recover donations made to St. James before it closed. They all claimed that the Archdiocese should have informed them that under Canon Law the church could be closed at a future time. The Court held that insofar as the plaintiffs' claims are based on alleged fiduciary or confidential relationship between a clergyman and his congregants, they raise matters of internal church governance that the First Amendment precludes civil courts from deciding. Other claims in the suit, the Court said, are not supported by the evidence. WCVB-TV today reported on the decision.

Canadian Court Rules No Religious Limits To Run For Catholic School Board Trustee

In Canada's Northwest Territories, the Supreme Court has ruled the Yellowkinife Catholic school board that operates state-supported religious schools may not prevent non-Catholics from running in school board trustee elections. In Yellowknife Catholic Schools v. Euchner, (NWT Sup. Ct., May 23, 2007), the court, reviewing at length the statutory provisions on denominational schools, held that "it was the clear intention of the legislature that a candidate for election to the public denominational District Education Authority need not be of any particular religious faith." CBC News yesterday reported on the decision.

Bills On Religion In Schools Advance In Texas Legislature

On Wednesday, the Texas Senate passed, and sent to the governor for his signature, HB 1287 which authorizes high schools to offer elective courses on the impact on history and literature of the Old and New Testaments. Texas Observer Blog says: "Despite Christian right efforts, the Senate did not remove the safeguards added to the bill by the House Public Education committee, such as teacher training, a textbook other than the Bible, and attorney general-approved curriculum standards." (See prior related posting.)

Meanwhile, the Texas Senate on Thursday also passed, and sent back to the House for final approval, HB3678, aimed at protecting voluntary student expression of religious viewpoints in public schools. (See prior related posting.) The Associated Press reports:

Under the legislation, religious beliefs expressed in homework, artwork and other assignments would be judged by traditional academic standards. Students couldn't be penalized or rewarded because of the religious content of their work.

The measure had sparked vigorous debate in the House, where the bill was amended to say that the religious expression could not discriminate against someone else’s race, age, sexual preference or religious belief.

UPDATE: The Dallas Morning News reported on Sunday that when HB 3678 was passed by the Texas Senate, it took out the non-discrimination provision that had been added by the House, and that the House on Saturday, by a vote of 108-28, approved the Senate version.

Court Limits Disclosure of FLDS Leader's Papers

The Associated Press reports that in Salt Lake City, Utah yesterday, a federal judge rejected arguments by Warren Jeffs, former head of the polygamous FLDS Church, that his papers, seized by prosecutors, should be kept secret because they contain private communications and recorded religious revelations. Jeffs had argued that disclosing them violated his free exercise rights as well as his rights under the Religious Freedom Restoration Act. However the judge ordered prosecutors to return the papers to Jeffs by July 2, and not to share them with anyone, including attorneys for the trust that now holds FLDS property and which is suing Jeffs.

Schools Reject Religious Groups In Seeking Church-State Balance

Two different stories this week demonstrate the continued tension that public schools find in seeking an appropriate balance on church-state matters. A Farmington, Michigan high school student has filed suit challenging school officials' refusal to permit ALIVE, a Christian Bible group, to be recognized as an official student organization. Assistant Superintendent Catherine Cost, said that school rules preclude recognition because the Bible group does not have a secular purpose and is too religious to be officially recognized. Officials were willing to let the group meet in an empty classroom, without formal recognition; however this would mean that the group would not get other benefits available to recognized organizations. Representing the student, the Thomas More Law Center argues that the federal Equal Access Act requires that ALIVE be recognized on the same basis as other non-curricular groups. Today's Philadelphia Evening Bulletin reports on the case.

Meanwhile yesterday's Houston Chronicle reports that a Christian motivational group, Power Team, finds that some public schools are cancelling its scheduled performances because of the group's evangelical ties. Power Team representatives say they do not mention religion in their public school performances. Their shows emphasize the importance of valuing life and dressing appropriately, as the group preaches against drugs and suicide.

North Carolina Court Rules Quran OK For Swearing-In Witnesses, Jurors

In North Carolina today, a Wake County Superior Court judge held that witnesses and jurors may be sworn in on the text "most sacred and obligatory upon their conscience." The case was filed by the ACLU after two judges in Guilford County said that state law prohibited taking the oath on the Quran. (See prior postings 1, 2, 3.) In today's opinion, the judge cited common law and state Supreme Court precedent. The Associated Press says that the judge did not find the state statute unconstitutional that provides for the use of the "Holy Scriptures" as one way to take an oath. Nor did he hold that the term "Holy Scriptures" includes the Quran.

UPDATE: Here is the full opinion in ACLU of North Carolina v. State of North Carolina, (Super. Ct Wake Co NC, May 24, 2007). The court relied extensively on an 1856 North Carolina Supreme Court case as well as language in the state's Rules of Evidence.

Christian Protester May Not Demonstrate On Handicap Access Ramp

After holding earlier this month that plaintiff’s case was a thin one, a Pennsylvania federal district court has now refused to grant a preliminary injunction to a Christian pro-life advocate who claimed that his free speech, freedom of assembly and free exercise rights were violated when a police officer threatened to arrest him if he insisted on protesting on the handicap access ramp that led into a Planned Parenthood clinic. In McTernan v. City of York, 2007 U.S. Dist. LEXIS 36907 (MD PA, May 21, 2007), the court held that the handicap access ramp is not a public forum. Instead, like the Post Office sidewalk at issue in the Supreme Court case of United States v. Kokinda, it is a non-public forum, and the police order was reasonable since demonstrators would have impeded the required accessibility the ramp was to offer.

Vatican-Israel Talks On Church Property, Status Resume

The Los Angeles Times reports that on Monday, Israel and the Vatican resumed long-stalled negotiations over church property, taxes and the status of the Church in Israel. The meeting of the Israel-Holy See Bilateral Commission took place in Rome. (See prior related postings 1, 2.) Both sides said that the meetings were cordial and important progress was made; however significant disagreements remain to be worked out in future talks. The parties agreed to meet again in Jerusalem before the end of the year.

Southern Illinois University Settles Suit With Christian Legal Society

The Associated Press reported yesterday that Southern Illinois University has agreed to settle a lawsuit against it by again recognizing the Christian Legal Society as an official student group. In 2005, the University revoked CLS’s status as a recognized student group because it violated the University’s non-discrimination policy. CLS requires that its members agree to follow a statement of Christian faith. This results in exclusion from voting membership of non-Christians and of active gays and lesbians. Last year, the U.S. 7th Circuit Court of Appeals granted a preliminary injunction restoring CLS’s recognition pending the outcome of an appeal before the court. (See prior posting). As part of the settlement announced this week (full text), the University will create a $10,000 scholarship that will be administered by CLS.