Hastings Christian Legal Society Loses Challenge To Anti-Discrimination Regs

On Monday, the Christian Legal Society at Hastings College of Law, lost its attempt to gain recognition as a student group while excluding non-Christians and those whose sexual activities violate Christian beliefs. (See prior postings 1, 2.) A California federal district court in Christian Legal Society v. Kane, (ND Cal., April 17, 2006), held that the University may apply its anti-discrimination policy and require recognized groups to eschew discrimination on the basis of religion or sexual orientation.

Examining the parties’ dispute over whether the University’s anti-discrimination rules regulate speech or conduct, the court found that they are permissible whichever way they are characterized. Even if it is a regulation of speech, the school has created a limited public forum, so that viewpoint neutral reasonable regulations are permissible. The fact that a policy particularly affects a group with a certain perspective or belief system does not render the policy viewpoint based. Also, the court found that the school was not forcing CLS to admit anyone as a member or officer; it was merely placing a condition on receiving university funding and using campus facilities. The court concluded that the University’s anti-discrimination policy does not violate CLS’s First Amendment rights to speech, association, or free exercise of religion. Nor does it deny CLS equal protection of law. The San Francisco Chronicle reported on the case on Tuesday. [Thanks to Blog from the Capital for the information, and Alliance Alert for posting the opinion.]

Towey, Head of Faith-Based Initiative Office, Resigns

H. James Towey, director of the White House Office of Faith-Based and Community Initiatives has resigned in order to become president of St. Vincent College in Latrobe, Pennsylvania. President Bush issued a statement thanking Towey for his more than 4 years of service. Americans United for Separation of Church and State urged the President to use the occasion of Towey's departure to close the Office of Faith-Based and Community Initiatives.

Police Charged With Violating Religious Rights In Questioning Muslim Girl

The Associated Press today reports that in Davis, California, the family of a 17-year old Muslim girl is suing Davis police for violating the girl's religious values. A male police officer questioned her without another adult being present. The girl was taken for questioning in her pajamas about 9:30 p.m. on June 13, after police suspected her of leaving the scene of a minor auto accident. The suit is continuing even though a judge has now thrown out the misdemeanor hit-and-run accident charge against the girl.

Malaysia Court Accused of Applying Sharia To Non-Muslims

In Kuala Lumpur, Malaysia, a dozen demonstrators protested a court decision last week that upheld a charge of indecency against an ethnic Chinese couple charged with kissing and hugging in a public park. The Washington Times today reports the protesters claimed authorities were applying Sharia legal principles to the non-Muslim Chinese and Indian communities. They said,"This is a manifestation of Islamization of Malaysia without respecting the rights and freedom of the non-Muslims." However, the Federal Court ruled broadly that kissing and hugging were not the norm for any Malaysians or other Asians. It said they were accepted only by Western moral standards.

Comment On Jury Selection In the Gerald Robinson Case-- What About Privacy?

Jury selection in the Fr. Gerald Robinson murder case in Toledo raises an interesting constitutional question: Is there a right to keep one's religious beliefs private? As the Toledo Blade reports today, potential jurors in the high profile case have been quizzed extensively about their religious backgrounds and beliefs. Several have been disqualified from serving either because their beliefs would make it difficult for them to convict a priest, or because they have anti-Catholic views. Admittedly this case-- where a former priest is accused of murdering a nun in a Catholic chapel-- is one where religious beliefs are relevant in assessing jury bias. However, suppose a potential juror objects to disclosing of his or her religious beliefs?

There seems to be surprisingly little precedent on this issue. Back in 1960, the U.S. Supreme Court decided a case that might shed some light on the question. In Shelton v. Tucker, 364 U.S. 479 (1960), the Court, in a 5-4 decision, struck down an Arkansas statute that required public school teachers to list every organization to which they had belonged or regularly contributed during the prior 5 years. The Court held that this requirement chilled teachers' 1st Amendment associational rights. It places pressure on teachers to avoid unpopular or minority organizations. The case as to jurors, however, is closer. The inquiry is more narrowly drawn-- they are not being asked about every organization to which they belong-- and the state interest is very strong. However, it is still troubling to contemplate the individual who is a member of an unpopular religious group being forced into court and quizzed at length on his or her beliefs.

FLDS Church Loses Attempt To Keep Seized Documents Secret

A federal district court in Colorado has rejected an attempt by the Fundamentalist Church of Jesus Christ of Latter Day Saints to obtain a return to it of "religious" documents seized in connection with the prosecution of FLDS leader Warren Jeffs. In United States v. Jeffs , 2006 U.S. Dist. LEXIS 19358 (D. Colo., April 4, 2006), the court also refused to issue a protective order prohibiting public disclosure of the documents. The FLDS Church had argued that their public disclosure would impinge on its free exercise of religion. However, the court characterized this claim as "somewhat inexplicit and wholly unsupported", holding that merely calling the documents "sacred" is not enough to justify a protective order. (See prior related posting.)

Supreme Court Denies Cert. In Church Resistance To Subpoenas

The U.S. Supreme Court yesterday denied certiorari in two cases involving attempts by the Roman Catholic Diocese of Los Angeles to quash grand jury subpoenas for personnel records of two former priests who were being investigated for molesting minors. The cases are Roman Catholic Archbishop v. Superior Court of California (05-1017) and Does 1 and 2 v. Superior Court of California (05-1039), cert. denied, April 17, 2006. According to yesterday's New York Times, the Church had argued that the subpoena "inherently entangles the state in the internal religious life of churches and intrudes into religious practice." The California Court of Appeal, in a lengthy opinion, had upheld the subpoena. (See prior posting.) Today's Los Angeles Times also covers the case.

Author Reviews Presidents' Uses Of Public Religion

An interesting column by Jon Meacham, titled U.S. Benefits From Public Religion, is published in today's Detroit Free Press. It reviews both the sincere and the cynical use of religion and public prayer by past U.S. presidents, saying, "Cynics may dismiss prayer breakfasts and public piety as political, but the language of faith has been a perennial force at the highest levels." Meacham, is the author of "American Gospel: God, the Founding Fathers, and the Making of a Nation".

New Appointees To U.S. Holocaust Memorial Council

The White House announced yesterday that the President intends to appoint nine individuals to fill vacancies on the U.S. Holocaust Memorial Council. The Council has 65 members, 55 of whom are appointed by the President. All of the present appointments are for the remainder of five-year terms expiring January 15, 2011. Among the appointees are Nobel laureate Elie Wiesel and television personality Rebbetzin Esther Jungreis. The other appointees are: Debra Abrams of Florida; Norma Lerner of Ohio; Marvin A. Pomerantz of Iowa; Alan Neil Rechtshaffen of New York; J. Philip Rosen of New York; Bradley David Wine of Maryland; and Judith Yudof of Texas.

Recent Law Review Articles

Recently published articles from SmartCILP:

Nathan J. Brown & Clark B. Lombardi, The Supreme Constitutional Court of Egypt on Islamic Law, Veiling and Civil Rights: An Annotated Translation of Supreme Constitutional Court of Egypt Case No. 8 of Judicial Year 17 (May 18, 1996), 21 American University International Law Review 437-460 (2006).

Symposium: Law and Religion, 82 University of Detroit Mercy Law Review 509-686 (2005):

Hazard, Geoffrey C., Jr., McElroy Lecture. Law, Ethics and Mystery.
Baker, Anthony V., "through a glass darkly ...": Christianity, Law and Capital Execution In Twenty-First Century America.
Hartigan, Emily Albrink., Law Fragments.
Litman, Donna, Jewish Law: Deciphering the Code By Global Process and Analogy.
Richards, Peter Judson, Property and Epikeia: Theory, Life and Practice in the Western Christian Tradition.
Young, Stephen B., The Moral Basis of American Law: An Hypothesis.

Professor Says 1st Amendment Protects Political Preaching

Notre Dame Law Professor Rick Garnett has an interesting op-ed column this morning in USA Today. Titled Campaigning From the Pulpit: Why Not?, Garnett says that the First Amendment protects "political preaching and faith-filled activism". He concludes: "Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.... A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics."

Detroit Challenged Under Establishment Clause On Super Bowl Clean-Up Grants

Today's Detroit News reports that a resident of Detroit and American Atheists, Inc. are suing the city and Detroit's Downtown Development Authority, demanding that they seek repayment of grants given to two downtown churches so they could fix up their building exteriors and parking areas as the city hosted this year's Super Bowl. The federal court suit seeks recovery of $690,000 given to Central United Methodist Church and Second Baptist Church as part of the Lower Woodward Facade Improvement Program. The complaint alleges that the grants violated the Establishment Clause of the U.S. Constitution, and Article 1, Sec. 4 of the Michigan Constitution that prohibits use of public funds for the benefit of any religious sect or society.

Today Religion Clause Blog Is 1 Year Old !

Today-- April 17-- is the first birthday of Religion Clause blog. Thanks to all who have been loyal readers. Here are two things that you can do to help celebrate:

(1) post a Comment, or send me an e-mail, with your thoughts on the blog; tell me how regularly you read it; and let me know what would lead you to read it more regularly;

(2) recommend the blog to others who you think might be interested in it; link to it on your site if you have not already done so.

Litigant's Free Exercise Claim Against State Judges Is Moot

In Donkers v. Simon, (6th Cir., April 6, 2006), the U.S. 6th Circuit Court of Appeals dismissed a challenge by a state court litigant in Michigan who claimed that her free exercise rights were infringed when a state court judge insisted that she rise when he entered and exited the court room. Plaintiff Catherine Donkers claimed that rising for the judge violated her sincerely-held religious beliefs. As a result of Donker's suit in federal court raising this claim and seeking a declaratory judgment and injunction against the state judges, all the judges in the state judicial district disqualified themselves and her case was reassigned to a neighboring county. The 6th Circuit held that this mooted her claim for injunctive and declaratory relief.

Poll: Even Split On Propriety of Teaching Bible In Public Schools

Taking a poll on what the Constitution means is not a very useful interpretive technique. Nevertheless, a CBS poll released Sunday did just that. It asked whether teaching the Bible in public school violates church-state separation. Respondents were evenly split: 46%, yes; and 46%, no.

More Prisoner Free Exercise Claims Decided

In Howard v. Wilson, (5th Cir. April 11, 2006), the 5th Circuit Court of Appeals affirmed a Mississippi federal district court's dismissal of a prisoner's free exercise challenge to the refusal of state prison officials to recognize the prisoner's adoption of a Muslim name. The appeal was dismissed as frivolous.

In Mark v. Off, (WD Wis., March 31, 2006), a Wisconsin federal district court rejected a former state prison inmate's free exercise claims brought under the First Amendment and RLUIPA. Mark Off variously claimed he was a Wiccan, a pagan, and a ritual magician. He brought suit challenging prison officials' removal of his "magic seals" from his cell walls and door.

In Keesh v. Smith, 2006 U.S. Dist. LEXIS 18834 (ND NY, March 2, 2006), a New York federal district court refused to issue a preliminary injunction to require New York correctional authorities to accommodate two prisoners' requests to practice the religion of "Tulukeesh". One of the prisoners identifies himself as the "Savior and Teacher" of Tulukeesh and says its tenets and practices are set out in the book "Holy Blackness," which he authored.

In Andreola v. Wisconsin, 2006 U.S. Dist. LEXIS 19123 (ED Wis., April 4, 2006), a lawsuit that has already been up to the 7th Circuit once, a Wisconsin federal district judge issued orders clarifying the remaining issues in a prisoner's lawsuit seeking greater accommodation of his request for kosher food than Wisconsin authorities are willing to grant. The court rejected plaintiff's claim under the First Amendment, but found that a claim under the higher standard of RLUIPA remains.

Ohio's Leading Democratic Candidate For Governor Has Strong Religious Roots

The religiosity of the candidates is apparently an important issue in Ohio's gubernatorial race this year. Dueling Republican candidates Kenneth Blackwell and Jim Petro have been touting their Christian credentials for months. Now leading Democratic candidate Ted Strickland apparently wants to make certain that the voters know that he is just as committed. An article on Strickland in today's Toledo Blade prominently includes a profile of Strickland's religious credentials, beginning with his experiences at a church summer camp as a 12-year old.

In India, Arrest For Preaching Christianity On Easter

DNA India reports that in Bhopal, police arrested two women on Easter Sunday for preaching Christianity without first getting permission from authorities. According to the chief of police of Jabalpur District in Madha Pradesh, "The women were distributing pamphlets telling people how they may overcome their problems by following the Bible."

White House Sends Easter Greetings

A White House release on Thursday (full text) conveyed Easter greetings from President and Mrs. Bush to those observing the holiday. It said in part:

Christ's extraordinary sacrifice and compassion continue to inspire people around the world. His promise of new life gives hope and confidence to His followers. His service and love for His neighbors offer a profound lesson for all people.

During this Easter season, we celebrate God's gifts of freedom and justice. We pray for peace and ask for God's blessings on the brave men and women who wear our Nation's uniform and their families.

Priest's Trial For Bizarre Murder Begins Monday In Toledo

There is a reason that my home town is know as "Holy Toledo!" On Monday in Toledo, Ohio Common Pleas Court, jury selection begins in one of the most bizarre murder cases imaginable. Catholic priest Gerald Robinson is being tried for the murder of a 71-year old nun that took place 26 years ago. In 1980, on the day before Easter, a nun was strangled, then stabbed between 27 and 32 times in the chest and neck in the sacristy next door to the chapel in a local Catholic hospital. Her undergarments had been pulled down over her ankle. The victim, Sister Margaret Ann Pahl, had gone to prepare the chapel for Holy Saturday Mass.

In Saturday's Toledo Blade, religion editor David Yonke does an excellent job of chronicling the background of what may have been a ritualistic murder carried out by a Satanic cult to which Father Robinson belonged. Robinson could be tried by the Church under canon law as well-- though experts think this is unlikely.

Finally, in a tip for locals who are used to immensely convenient parking, the Blade informs readers that there will be a loss of some of the on-street meter parking around the courthouse during the trial as the space is taken up by television satellite trucks, including Court TV that plans gavel to gavel coverage.