Unusual First Amendment Challenge To Smoking Ban Fails

A rather innovative free exercise challenge to Austin, Texas' ban on smoking in public places was rejected by a federal district court several weeks ago. In Roark & Hardee v. City of Austin, (Oct. 18, 2005), plaintiffs launched a partially-successful broad-based attack on Austin's smoking ordinance. One of plaintiff's constitutional claims was that the ordinance infringed the free exercise of religion because it banned the burning of incense. However, the court was unconvinced since the City expressly disavowed that the ordinance covers the burning of incense or candles and stated that it would not enforce the ordinance to ban these activities.

Administrative Segregation Does Not Violate Prisoner's Religious Rights

In Grimes v. Cunningham, 2005 U.S. Dist. LEXIS 32099 (D. Del., Dec. 8, 2005), a Delaware federal district court rejected a prisoner's First Amendment challenge to his administrative segregation for security reasons. Russell Grimes, a pre-trial detainee, had argued that the detention prevented him from attending communal worship services.

Wisconsin Legislature Holds Hearing On College Dorm Bible Studies

The Colleges and Universities Committee of the Wisconsin Assembly held an informational hearing on Tuesday on the policy of the University of Wisconsin Eau-Claire that prevented a dormitory resident assistant from leading Bible study groups in his dorm. (See prior posting.) The Janesville, Wisconsin Gazette reported that the committee heard testimony from the student RA, Lance Steiger. Republican Rep. Stephen Nass supported Steiger, saying that resident assistants are free to lead groups supporting diversity, political viewpoints or gay and lesbian students. "Yet when you want to hold your hands in prayer you are told you cannot." The Freedom From Religion Foundation said the hearing was merely political grandstanding. It criticized the University for "capitulating to the demands of the religious right."

Challenge To Pennsylvania Home Schooling Regulation Rejected

In Combs v. Homer Center School District, 2005 U.S. Dist. LEXIS 32007 (WD Pa., Dec. 8, 2005), a Pennsylvania federal district court, in a lengthy opinion, rejected free exercise of religion challenges by a number of parents to Pennsylvania’s regulation of home schooling. Plaintiffs alleged that "God has given parents jurisdiction and authority over the education of their children," and that it would be "sinful for them to engage in conduct or expression that would grant control over their children's education to the civil government . . . [or require them to] seek approval from the secular civil government”. The parents particularly objected to the requirement that they submit an educational log and a portfolio containing samples of their children's work to public school officials for review. The court held, however, that, Plaintiffs did not allege any actual, tangible ways in which the state’s requirements impair or restrict the exercise, practice, conduct or expression of their religion. It therefore rejected claims that the Pennsylvania statute violated the First Amendment or the Pennsylvania Religious Freedom Protection Act.

Cardinal Schonborn Lecture Attempts To Clarify His Stand On Intelligent Design

Zenit yesterday published an English translation of a lecture by Catholic Cardinal Christoph Schönborn on creation, evolution, and his views on Intelligent Design. The lecture was delivered in October in Vienna and was intended to clarify misunderstandings that arose from his widely-discussed op-ed piece that appeared in the New York Times last July. (See prior posting.) He said in part:

I see no difficulty in joining belief in the Creator with the theory of evolution, but under the prerequisite that the borders of scientific theory are maintained.... When science adheres to its own method, it cannot come into conflict with faith. But perhaps one finds it difficult to stay within one's territory, for we are, after all, not simply scientists but also human beings, with feelings, who struggle with faith, human beings, who seek the meaning of life. And thus as natural scientists we are constantly and inevitably bringing in questions reflecting worldviews.

In 1985, a symposium took place in Rome under the title "Christian Faith and the Theory of Evolution." ... [A]t its conclusion, Pope John Paul II received us in an audience. There he said: "Rightly comprehended, faith in creation or a correctly understood teaching of evolution does not create obstacles: Evolution in fact presupposes creation; creation situates itself in the light of evolution as an event which extends itself through time -- as a continual creation -- in which God becomes visible to the eyes of the believer as 'creator of heaven and earth.'"

But Pope John Paul then added the thought that for the creation faith and the theory of evolution to be correctly understood, the mediation of reason is necessary, along with, he insisted, philosophy and reflection.... For me the question that has emerged from this debate is not primarily one of faith vs. knowledge but rather one of reason. The acceptance of purposefulness, of "design" [English in the original], is entirely based on reason, even if the method of the modern natural sciences may require the bracketing of the question of design. Yet my common sense cannot be shut out by the scientific method. Reason tells me that plan and order, meaning and goal exist, that a timepiece does not come into being by accident, even less so the living organism that is a plant, an animal, or, above all, man.

California Court Supports Break-Away Episcopal Churches

The Long Beach Press Telegram reports that in Orange County, California, a state trial court yesterday dismissed a suit by the Episcopal Diocese of Los Angeles against two dissident churches, All Saints' and St. David's of North Hollywood. The decision allowed the parishes, which had split from the Episcopal Church in 2004 because of disagreements over the consecration of an openly gay bishop and the blessing of same-sex unions, to retain possession of their property. (See prior related posting.) The Los Angeles diocese had invoked canon law to claim that the churches' property and hymnals belonged to the larger Diocese. The court rejected that claim, however, finding that deeds gave title to church buildings to individual churches, and that the church’s articles of incorporation did not create a trust in favor of the parent religious body. The parishes were had defended the case by filing anti-SLAPP motions, which claimed the lawsuit arose from their exercise of freedom of speech and religion. That allowed the case to be dismissed immediately if the plaintiff was unable to show it was likely to prevail in a trial. (See prior posting.)

Moscow Mayor Urged To Ban Building of Hindu Temple

According to a report today from Clickwalla, the Archbishop of the Russian Orthodox Church has asked Yuri Luzhkov, the mayor of Moscow, to ban construction of a proposed Hindu temple in Moscow. Otherwise, according to Archbishop Nikon, the temple would become "an idolatrous disgrace erected for the glory of wicked and malicious 'god' Krishna". Mayor Luzhkov signed a decree allocating land in northwest Moscow for the Temple almost two years ago. But in October, after mass protests prompted by the Russian Orthodox Church, the mayor repealed the decree and ordered removal of a temporary Hindu shrine that had already been built on the land. Last week, a "Defend Russian Hindus" campaign was begun in London. Speaking for that campaign, Kishore Ruparelia said: "We cannot believe that in this age of respect and multi-cultural co-existence, a leader of the Russian Church chooses to make statements that are intolerant and disrespectful to one billion Hindus in the world."

Welcome to "Blog from the Capital"

Religion Clause welcomes to the blogosphere a new entrant, Blog From the Capital . Sponsored by the Baptist Joint Committee for Religious Liberty, it will focus on the debate over church-state separation and religious liberty. Daily posts will cover legislation, judicial review, news, and commentary. [Thanks to Mainstream Baptist for the information.]

The blog is newly listed to the left on this page in the Religion Clause sidebar. If you have not looked at my sidebar listings, please do so. Almost 100 links are provided to resources, academic centers, government offices, advocacy organizations, journals, forums and blogs that focus primarily on issues relating to church-state or religious freedom.

Religious Lobbying Impacts ICANN Delay of xxx Domain

According to a report in the Dec. 7 issue of BNA Electronic Commerce and Law Reporter [subscription required], after initial approval, the board of the Internet Corporation for Assigned Names and Numbers (ICANN) has postponed consideration of a proposal to create a new top level domain(TLD) for adult entertainment sites. (ICANN Report). Stuart Lawley, Chairman of the Internet Foundation for Online Responsibility which proposed sponsoring the new TLD blamed the delay on intervention by the U.S. Department of Commerce and the influence of religious groups. In a December 1 press release, Concerned Women for America praised ICANN's action and said that its Chief Counsel had met with top Commerce Department officials to urge that the new TLD be blocked. CWA's Mission, as described on its website "is to protect and promote Biblical values among all citizens - first through prayer, then education, and finally by influencing our society - thereby reversing the decline in moral values in our nation."

In August, it had been reported that the Commerce Department had received over 6000 letters and e-mails from individuals expressing concern about the new TLD, and that those concerns had, in turn, been communicated in a letter from the Commerce Department to ICANN. Conservative groups like the Family Research Council were apparently behind the flood of protests sent to the Commerce Department.

A RLUIPA Conundrum

Every once in a while, we need to step back and smile at the impact of our legal rules. A posting by Nate Oman last week at the blog Concurring Opnions gives us a chance to do this. He suggests this for the individual who wants to use sacramental peyote: get arrested-- maybe for using peyote. RLUIPA may well give free exercise rights to the inmate that he doesn't have outside. The full posting is worth a read. [Thanks to SCOTUSblog for the lead.]

Intelligent Design Back On Center Stage

The controversy over teaching Intelligent Design in public schools will apparently assume center stage again this week. The Atlanta Journal Constitution reports that this week arguments will be heard in the U.S. 11th Circuit Court of Appeals in the case of Selman v. Cobb County School District. In 2001, the Cobb County, Georgia school board ordered stickers placed on their new biology textbooks that contained 101 pages on evolutionary theory. The stickers read: "This textbook contains material on evolution. Evolution is a theory, not a fact, regarding the origin of living things. This material should be approached with an open mind, studied carefully and critically considered." A lower court ordered the stickers removed. (Full text of opinion).

Meanwhile, today's Washington Post profiles Cobb County, Georgia, pointing out that "the fast-growing suburb of about 650,000 people northwest of Atlanta ... has long shown a remarkable flair for high-profile social controversy." And the South Florida Sun Sentinel reports that support for Intelligent Design has made its way into the Orthodox Jewish community, as a conference this week at Florida International University on Torah & Science features Christian ID proponent William A. Dembski as one of its speakers.

Settlement Near In Tenafly Eruv Case

In 2002, the U.S. Third Circuit Court of Appeals granted a preliminary injunction to Orthodox Jewish residents of Tenafly, New York, to prevent the city from enforcing a city ordinance that would have prohibited plaintiffs from creating an eruv by attaching plastic strips to utility poles. The court found it likely that the plaintiffs' free exercise rights were being infringed by the Tenafly's apparently discriminatory enforcement of the ordinance. Sunday's North Jersey Record reports that a settlement of the dispute may finally be at hand. A public hearing on the proposed settlement will be held January 10. Then on January 24 borough officials will vote on the settlement which would allow expansion of the existing eruv, but only if done using plastic lechis (inconspicuous black strips on telephone poles). Tenafly would also pay $325,000 in attorney fees to the Tenafly Eruv Association and would not be allowed to pursue any related legal action against Verizon or Cablevision, which originally gave permission for the eruv to be constructed using their poles.

Sikh Battles Over Drivers License Photo In France

The Sikh News Sentinel yesterday and Tuesday covered the ongoing legal battle in France over whether Sikh men can wear their turbans in their drivers' license identity photos. Originally authorities cited a 1999 Interior Ministry order and required Shingara Mann Singh to remove his turban for the photo. But then, the Council of State, France's highest administrative body, ruled that only the Transport Ministry had authority over drivers' licenses, and its 1999 decree was not precise enough to justify refusing Singh's request for a photo with his turban on. But a day later the Transport Ministry cured the imprecision in its decree and specifically said that it would now apply the Interior Ministry's edict to drivers licenses. Singh's lawyer, Patrice Spinosi, said he would take the case back to the Council of State, and if he loses there, would go on to other tribunals, even the European Court of Human Rights.

City Asks Judge To Limit Religious Remarks By Lawyer

The city of Oxford, Mississippi is seeking an unusual order from a federal judge in an upcoming racial discrimination trial, according to today's Jackson, Mississippi, Clarion-Ledger. Oxford is being sued by a former employee of its water department who alleges that he was fired because a supervisor disapproved of his dating a white woman. The city wants an order against plaintiff's attorney prohibiting him from suggesting to the jury that their decision in the case should be made on the basis of religious belief. In the past, Tupelo attorney Jim Waide has, for example, told jurors to "do what Jesus would do". The city wants the court to order that Waide not be allowed to talk about religion, biblical authority and/or a deity in his opening or closing statements.

Drawing Lines On Christmas Music In Public Schools

Holiday music is a particularly difficult subject in public schools in December. On Oct. 11, the Greece Central School District near Rochester, New York adopted a resolution providing that in order to recognize the nation's rich cultural heritage, the Board approves "all holiday music to be studied, performed, and presented within the district without differentiation due to title." Apparently this language was intended to adopt the policy set out in a memo to the Board from Louise Trucks, the district's arts director. Today's Rochester Democrat and Chronicle describes the memo: It says that sacred music at school assemblies should be included for educational purposes, and that educational information about the music can be given in program notes or verbally. It continues: "Some selections, those in which the text particularly implies or encourages worship, would not be appropriate in school settings." The memo gives "O Come, All Ye Faithful," as an example. However, according to the memo, "Silent Night," because it is "descriptive in nature and does not request a particular religious behavior," would be acceptable if accompanied by educational text.

New Scholarly Articles of Note

From SmartCILP:
Symposium on Conscience and the Free Exercise of Religion. Articles by Steven D. Smith, James W. Nickel, Kent Greenawalt, Kevin J. Worthen, Gregory C. Sisk and Martin H. Belsky. 76 Univ. Colorado Law Review 911-1080 (2005).

New on BePress:
David A. Skeel Jr., University of Pennsylvania Law School & William J. Stuntz, Harvard Law School, Christianity and the (Modest) Rule of Law .

Faisal M. Kutty, Osgoode Hall Law School, The Shari'a Factor in International Commercial Arbitration .

Medicaid Eligibility Claim Raises Possible Church-State Issues

In a recent case, In re The Fair Hearing of Hoffer, (Dec. 6, 2005), the Montana Supreme Court was faced with the question of whether seven residents of King Colony Ranch, a Hutterite Colony, met the test for limited resources in order to be eligible for the Family-Related Medicaid Program. The majority found that the Colony’s assets are held in trust for the benefit of its members, and remanded the case for determination of eligibility in light of this conclusion. The dissent, however, argued that any duty that the Colony has to support the Claimants is a religious, not a legal, one. The dissent argued that to conclude otherwise would require the court to make a religious inquiry in violation of the Establishment Clause and Free Exercise Clause of the U.S. Constitution and of Article II, Section 5 of the Montana Constitution. A story on the case was carried by Wednesday's Billings Gazette.

White House Religious Accommodations At Hanukkah Party

Following up yesterday's posting on this year's White House Hanukkah party, the blogosphere offers some other interesting glimpses into the details of the religious accommodation that went into planning of the event. Scott Johnson, who attended the party, describes the festivities on Power Line, including this: "Guests were escorted to President and Mrs. Bush by Marines in dress uniforms, and each couple was in turn announced by the Marine to the president. The Marine asked questions to determine if we observed Jewish law regarding touching between the sexes and instructed us where to stand..." And Life-Of-Rubin carries a photo of Mrs. Bush with the supervising rabbis and kitchen staff during the koshering of the White House kitchen.

Juror's Use of Biblical Verses Does Not Invalidate Death Sentence

In Fields v. Brown, (Dec. 8, 2005), the U.S. Ninth Circuit Court of Appeals reversed the trial court and reinstated the death sentence for Stevie Lamar Fields who has been on death row since 1979. UPI yesterday reported on the part of the decision involving church-state issues. A lower court had ruled that a foreman's use, and sharing with other jurors, of notes on Biblical passages was not permissible during jury deliberations in the penalty phase of Field's trial. The Ninth Circuit reversed, holding that at least some of the Biblical verses were not extrinsic factual material, but instead were common knowledge. As to others, the court said that it was not shown that they had a substantial and injurious effect on the verdict.

Recent Prisoner Cases Involving Religion Issues

In Catala v. Commissioner, 2005 U.S. Dist. LEXIS 31695 (D.NH, Nov. 22, 2005), a New Hampshire federal district court rejected a motion by the New Hamshire Department of Corrections to dismiss a prisoner's claim that he was unconstitutionally required to attend a religious-based twelve-step program for substance abuse in order to otain a change in classification and as a factor in parole.

In Awala v. People Who Want (Dec. 8, 2005), the U.S. Third Circuit Court of Appeals dismissed as frivolous a prisoner's suit asking the federal district court to overturn the U.S. Supreme Court's Ten Commandments decision and restore all religious monuments that have been removed from court houses around the country.