House-Passed Education Bill Contains Religious Protections

Last Thursday the House of Representatives passed, and sent on to the Senate, the College Access and Opportunity Act (H.R. 609). (Reuters report.) The House Committee has issued a Summary of the bill's complex provisions.

Sec. 112 of the bill amends the current 20 USC Sec. 1011a to include a provision stating that it is the sense of Congress that students at institutions of higher education "should not be intimidated, harassed, discouraged from speaking out, discriminated against, or subject to official sanction because of their personal political, ideological, or religious beliefs...." It also adds a provision attempting to insure that sanctions imposed on students for disrupting a college sponsored class, performance or speech are imposed "objectively, fairly, and without regard to the student’s personal political, ideological, or religious beliefs".

Also Section 495 of the bill amends the current 20 USC Sec. 1099b to provide that the criteria for federal recognition of higher education accrediting agencies must include as one factor whether the accrediting agency consistently applies and enforces standards "that consider the stated missions of institutions of higher education, including such missions as inculcation of religious values".

New Charges of Chinese Persecution Of Falun Gong

Austrian law professor Manfred Nowak, United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is looking into new charges of persecution of the Falun Gong by the government of China. Reuters reported last week on allegations that up to 6,000 people were being held at a state-run concentration camp in the northern city of Shenyang. It is claimed that some of the prisoners have been killed and their organs or tissues sold.

New Articles and Books

A large number of articles and books of interest have recently been published:

The Winter 2006 issue of the Journal of Church and State containing numerous articles, book reviews and features has just appeared.

From SmartCILP:

• Steven K. Green, A Legacy of Discrimination"? The Rhetoric and Reality of the Faith-Based Initiative: Oregon as a Case Study, 84 Oregon Law Review 725-777 (2005).
• Philip Hamburger, Religious Freedom in Philadelphia, 54 Emory Law Journal 1603-1631 (2005).
• Sue Ann Mota, Competing Judicial Philosophies and Differing Outcomes: The U.S. Supreme Court Allows and Disallows the Posting of the Ten Commandments on Public Property in Van Order v. Perry and McCreary County v. ACLU, 42 Willamette Law Review 99-122 (2006).
• Brian D. Wassom, Unforced Rhythms of Grace: Freeing Houses of Worship from the Specter of Copyright Infringement Liability, 16 Fordham Intellectual Property, Media & Entertainment Law Journal 61-240 (2005).

Books:

From Random House, Jon Meacham, American Gospel : God, the Founding Fathers, and the Making of a Nation (April 2006), reviewed in this week's Newsweek. [Thanks to Joel Sogol via Religionlaw for the lead.]

From HarperCollins, Michael Burleigh, Earthly Powers: The Clash of Religion and Politics in Europe From the French Revolution to the Great War (Feb. 2006), reviewed in today's New York Times .

Feb. and March Prisoner Free Exercise Cases

In Sample v. Lappin, (DDC, March 31, 2006) (Opinion, Order), an Orthodox Jewish prisoner challenged restrictions imposed by the Federal Bureau of Prisons on his use of wine for religious purposes. Regulations allow him access to sacramental wine only if permitted by the warden and if administered by an authorized rabbi during the course of a religious ritual. The DC federal district court found that plaintiff had made a prima facie showing that this policy violates the Religious Freedom Restoration Act. However, neither party had made an adequate showing for the court to determine if the BOP policy was the least restrictive means of furthering the government's compelling interest in controlling alcohol consumption in prisons.

In Figel v. Overton, 2006 U.S. Dist. LEXIS 13892 (WD Mich., Feb. 14, 2006), on remand from the Sixth Circuit, a federal Magistrate Judge in Michigan permitted a prisoner to proceed with a claim for damages growing out of the confiscation of religious books not received directly from the publisher or an authorized vendor. He recommended that defendants' claims of qualified immunity be denied.

In Diaz v. Goord, 2006 U.S. Dist. LEXIS 14309, (WD NY, March 20, 2006), a New York federal district court found that while atheism qualifies as a religion for purposes of a prisoner's free exercise claim, plaintiff had failed to allege how the confiscation of his atheist pendant and chain infringed on his right to practice his religion.

In Scrible v. Miller, a West Virginia federal district court judge adopted a federal Magistrate Judge's recommendations that a Rastafarian prisoner be permitted to proceed with his claims under the Free Exercise clause and the Religious Land Use and Institutionalized Persons Act. Plaintiff alleged that he has taken the vow of the Nazarite, and sought an exemption from the state prison's grooming policy, a religious diet, and assistance in finding a Rastafarian leader and/or literature. The Magistrate Judge's opinion is at 2006 U.S. Dist. LEXIS 14411, (ND WVa, Feb. 2, 2006), and the district judge's opinion is at 2006 U.S. Dist. LEXIS 14394 (ND WVa., March 15, 2006).

Justice Scalia Creates Tempest At Boston Red Mass

Yesterday’s edition of The Pilot, published by the Catholic Archdiocese of Boston, carried a flattering story about Justice Antonin Scalia’s attendance at the Catholic Lawyer’s Guild annual Red Mass, held on March 26 at Boston’s Holy Name Cathedral of the Holy Cross. Traditionally the Red Mass opens the Court’s term, but it was delayed this year because of scheduling issues. While The Pilot’s story reported on Scalia’s talk after the Mass at a luncheon sponsored by the Guild, it was silent about a controversy that was created by Scalia between Church and the lunch.

As Scalia was leaving the Mass, a Boston Herald reporter, Laurel J. Sweet, asked him whether he receives a lot of criticism for publicly proclaiming his conservative Catholic beliefs. "You know what I say to those people?" Scalia replied, flicking his hand under his chin. "That’s Sicilian," he said. He continued: "It’s none of their business. This is my spiritual life. I shall lead it the way I like." The Boston Herald article described the under-the-chin gesture as "obscene". This led Justice Scalia to write a letter to the Herald (full text) complaining that the gesture was not obscene, but merely meant "I couldn’t care less".

It turns out that free-lance photographer Peter A. Smith actually caught Scalia’s gesture on film. Smith is a part-time faculty member in Journalism at Boston University and was covering the event for the Catholic Pilot. As the controversy raged, he released the photo and gave his account of what happened: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, Vaffanculo, punctuating the comment by flicking his right hand out from under his chin.'" The Italian phrase means "f--- you." The Boston Herald reporter who had asked Scalia the original question agreed with Smith’s story, but said he did not hear Scalia say "Vaffanculo".

Proving the old adage that "no good deed goes unpunished", yesterday's Boston Herald reported on photojournalist Peter Smith's fate. His decision to release of the photo of Justice Scalia led The Pilot to fire the professor-photographer who had freelanced for the paper for ten years.

Malaysian Man Fined For Missing Friday Prayers

A rather surprising story, even for Malaysia, appears in today’s edition of the New Straits Times. The Malaysian state of Kelantan has enacted a law known as the Kelantan Islamic Council and Malay Customs Enactment 1986 (Amendment 1994). It makes it an offense, punishable by a fine or up to 6 months in jail, for a Muslim to be absent from prayers in his sub-district for three consecutive Fridays. Mohamad Taib, in a rare prosecution, was charged under the Act. He claimed his absence was due to his being ill with asthma, but Syariah Court judge Mohd Hafiz Daud rejected the excuse, suggesting that straying from God is what caused Taib’s asthma in the first place. Taib paid a fine of RM300 (around $82US).

Afghanistan Convert Case Continues To Have Legal Implications Worldwide

The divide between Western countries and many Muslim nations over the tradition of religious freedom was emphasized in the last few days in the wake of the last minute escape from Afghan courts of Muslim convert to Christianity, Abdul Rahman.

On Thursday, by a vote of 427-0, the U.S. House of Representatives passed H. Res. 736 strongly condemning Afghanistan's attempts to prosecute Rahman for abandoning Islam:

Resolved, That the House of Representatives-- (1) condemns, in the strongest possible terms, the enforcement of laws against apostasy; (2) requests the President to continue to work with the Government of Afghanistan to establish better protections for religious minorities, including converts to minority religions, and to enhance human rights protections in Afghanistan; and (3) calls upon the Government of Afghanistan, and especially President Hamid Karzai, to continue to conform Afghan laws to Afghanistan's international human rights treaty obligations, thereby protecting Afghan citizens who have converted or plan to convert to other religions from prosecution.

The Century Foundation today published an analysis of lessons learned from the Rahman episode about the tensions between Islamic law and Western law still faced by Afghanistan. It reports that President Hamid Karzai has presented the Afghanistan Parliament with a new slate of reformist Supreme Court judges. It is unclear whether Parliament will approve them. In a U.S. News & World Report column posted Thursday, Jay Tolson suggested that it was unfortunate that Afghanistan dismissed the Rahman case. He says: "Kabul has only put off its rendezvous with an inevitable constitutional dilemma.... At the same time, the dismissal robs the larger Muslim world of a golden opportunity for religious moderates to challenge an Islam-wide crisis of authority that allows extreme, literalist interpretations of Islamic law to go unchallenged."

Meanwhile, many other countries continue to impose legal restrictions on proselytizationtion and conversion. The Toronto Star today published an excellent summary of the law in ten Middle Eastern countries on religious conversion. And, according to Bos News Life, on Friday the Algerian Parliament approved a new law aimed at preventing Christian proselytization in the country. It imposes a 2 to 5 year prison sentence and a fine equivalent to $12,000 (US) on anyone who forces, urges or tempts a Muslim to convert to another religion. It also prohibits manufacturing, storing, or circulating publications or audio-visual material aimed at "destabilizing attachment to Islam." Finally the new law permits the practice of religions other than Islam only in buildings that have been licensed by the government.

Assets of Polygamous FLDS Sect Still An Issue

The Associated Press reports that a hearing in a Utah state court yesterday revealed new complexities in the court's attempt to supervise the trust that holds assets belonging to the Fundamentalist Church of Jesus Christ of Latter Day Saints. The FLDS Church has gained notoriety because of the polygamous practices of its members and the activities of its former leader, Warren Jeffs, who may now be founding a new colony in Saskatchewan. An attorney for the court-appointed trustee yesterday told Judge Denise Lindberg that resources from the United Effort Plan trust may have been diverted to new FLDS outposts in Colorado, South Dakota, Texas and Nevada. Judge Lindberg called on law enforcement officers in the sect's communities of Colorado City, Colo., and Hildale, Utah, to end their current obstructionism and cooperate in the investigation of the use of UEP funds.

Developments In Priest Sexual Abuse Claims

Today's National Catholic Reporter carries a story on hearings taking place in state legislatures across the country on proposals to extend the statute of limitations in cases alleging priest sexual abuse of minors. In Maryland, Washington Archdiocese chancellor Jane Belford argued: "By eliminating time limits or vastly extending them, these bills unfairly require a religious organization or other private entity to try to defend a civil lawsuit involving allegations that could be 30 to 40 years old. Memories fade over time, and witnesses and accused individuals may have died, disappeared or become infirm." The bill pending in Colorado that focuses only on suits against religious and private institutions has led the Catholic Church in that state to urge that sexual abuse in public schools and public institutions should be subject to the same rules.

Meanwhile, early last month a Colorado federal district court refused to permit the Archdiocese of Denver remove to federal court claims that had originally been filed against it in state court. In Doe v. Archdiocese of Denver, 413 F. Supp. 2d. 1187 (D. Colo., Feb. 7, 2006) and Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181 (D. Colo, Feb. 7, 2006), the court held that claims that the Church was negligent in hiring, supervising or retaining offending priests do not raise First Amendment issues that justify removal of the cases to federal court.

Navy Policy For Chaplains-- Analysis and Attack

Jews On First yesterday posted an excellent analysis of the U.S. Navy's recently modified instructions for its chaplains (SECNAV Instruction 1730.7C, Feb. 1, 2006). The 20-page document gives extensive guidance to chaplains and their commanders. It says that except in extraordinary circumstances, any religious element in a Navy function that is not a religious service must be non-sectarian. However a chaplain may refuse to participate in any program that is inconsistent with his or her religious beliefs. The instructions call on chaplains to function in a pluralistic environment that respects the free exercise of religion by all military members.

Yesterday, former Alabama Supreme Court Justice Roy Moore joined dissident Navy Chaplain Gordon James Klingenschmitt at a news conference. Klingenschmitt says that the Navy's policy violates his First Amendment rights by prohibiting him from reciting Christian prayer at non-religious events. Today's Birmingham, Alabama News reports that Klingenschmitt disobeyed an order not to wear his Navy uniform at the news conference. Instead, he invited disciplinary action by appearing in uniform, with a stole around his neck, where he specifically invoked Jesus Christ in prayer. Later, he changed into civilian clothing and a clerical collar and explicitly criticized the Navy's policy.

Apparently Klingenschmitt is not the only chaplain who has had a run-in with the Navy. There has just become available on LEXIS a case from last year brought by another chaplain who was forced into early retirement. In Wilkins v. United States, 2005 U.S. Dist. LEXIS 41268 (SD Cal., June 29, 2005), a Navy chaplain claimed that various institutionalized practices of the Navy's Chaplain Corps violated the First Amendment's Establishment and Free Exercise Clauses, as well as the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments. In particular, he allged discrimination against non-liturgical Protestant chaplains. The court rejected all of his claims.

Ohio Autopsy Law Respects Jewish Halacha

The Ohio General Assembly last week passed and sent to the Governor for signature Am. Sub. H.B. 235. The bill, which amends the Coroner's Law, includes provisions to take account of religious concerns about autopsy procedures. Ohio law already has a provision (ORC Sec. 313.131) relating to autopsy when the deceased had religious objections to the procedure. It permits a rapid judicial hearing to determine if the autopsy is a compelling public necessity. The new bill, which more generally deals with disposal of specimens after an autopsy, provides:

If an autopsy is performed ... and pursuant to section 313.131 ... the coroner has reason to believe that the autopsy is contrary to the deceased person's religious beliefs, the coroner shall not remove any specimens ... from the body of the deceased person unless removing those specimens ... is a compelling public necessity. Except [for a DNA specimen retained for diagnostic, evidentiary or confirmatory purposes]] ..., if the coroner removes any specimens from the body of the deceased person, the coroner shall return the specimens, as soon as is practicable, to the person who has the right to the disposition of the body.

These provisions are consistent with Jewish religious law regarding disposal of body tissue and organs. (Background.) Ohio Jewish Communities and Agudath Israel worked with drafters of the law to assure that the final version respected Halacha (Jewish law). (See prior posting.) [Thanks to OJC March 24, 2006 Internal Newsletter for the information.]

Muslim Classes Permitted In Syria's Military

AsiaNews today reports that in Syria, for the first time since 1963 when the Baath Party declared Syria a secular state, imams will be permitted to hold religious classes in the barracks of the Military Academy. The move is seen as an attempt to counter the fundamentalist Islamic teachings of the Muslim Brothers.

New Publications of Interest

From BePress:

• Jamie A. Aycock, Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
  
• Todd Parker, The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR

From SmartCILP: Don Willenburg has recently published a review of Noah Feldman's book, Divided by God: America's Church-State Problem--And What We Should Do About It, 80 Tulane Law Review 713-725 (2005).

Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 New York Univ. Law Review 101- 202 (2006). The article is discussed by Austin Cline in a posting titled Religious Discrimination in Child Custody Settlements.

No Damages Awarded In "Atheism Is A Religion" Case

Last August, the 7th Circuit Court of Appeals found that atheism qualified as a religion for a prisoner who wished to form a study group while incarcerated. The Wisconsin Department of Corrections is currently revising its policies to reflect this holding. Now, on remand of the case, a Wisconsin federal district court has granted prison officials summary judgment and dismissed plaintiff's claim for damages. In Kaufman v. Witch, (WD Wis., March 24, 2006), the court accepted prison officials' defense of qualified immunity because, in light of pre-existing Establishment Clause precedents, the unlawfulness of their original decision refusing to treat atheism as a "religion" was not apparent to them.

As Rahman Gets Asylum In Italy, New Questions Raised In U.S.

Abdul Rahman, the convert from Islam to Christianity who faced a possible death sentence in Afghanistan, was granted political asylum in Italy on Wednesday. The Chicago Tribune reports that even though Afghanistan's Parliament sent a letter to the Interior Ministry demanding that Rahman not be allowed to leave the country, he was secretly flown to Italy Wednesday night. Today's Middle East Times says that Afghanistan's Parliament will conduct an inquiry into the judiciary's decision to free Rahman. Meanwhile the Taliban said that the developments show President Hamid Karzai's government to be a "puppet" to foreign powers, and called for jihad against Karzai's administration.

In the wake of these developments, this week's issue of Forward carries an excellent article analyzing the impact that the Rahman affair has had on evangelical Christians in the United States. The paper says that the controversy left evangelicals questioning the Bush administration's assumption that Muslim countries can become democratic while adhering to Islamic law and Muslim customs.

Largest Chaplains' Group Says No New Executive Order Is Needed

According to today's Washington Post, the National Conference on Ministry to the Armed Forces, a long-standing multi-faith organization representing over 70 per cent of the chaplains in the military, has written the Senate Armed Services Committee opposing a call by conservative members of Congress for the President to issue an order guaranteeing chaplains the right to pray in the name of Jesus. Rev. Herman Keizer Jr., chairman of NCMAF, said: "This has been portrayed as though chaplains are not allowed to pray in Jesus's name, without any distinction between what they do all the time in worship services and what they do occasionally, in ceremonial settings where attendance is mandatory." Calls for an executive order to protect the right to pray in Jesus's name have originated mainly from a two-year old rival association, the International Conference of Evangelical Chaplain Endorsers that represents about 800 chaplains, exclusively from evangelical Christian churches.

Indian Supreme Court Rejects Religious Discrimination Challenge To Election Law

The Times of India reports that on Tuesday, the Supreme Court of India decided Ewanlangki-e-Rymbai v. Jaintia Hills District Council. The decision upheld against constitutional attack a statutory provision that precludes Christians from contesting the results of any election to the post of Dolloi (headman) of the Jaintia Scheduled Tribe. Ewanlangki-e-Rymbai, a Christian, supported by the Elaka Jowai Secular Movement, claimed that the provision discriminated against him on the basis of religion. However, Justice Singh said: "The ground for exclusion of Christians is not solely on the ground of religion, but on account of the admitted fact that a Christian cannot perform the religious functions attached to the office of Dolloi."

Arizona Bill To Require Recognition of Student Religious Organizations Nears Passage

In Arizona, the state Senate has passed and sent on to the House the "Associational Freedom in Higher Learning Act" (SB 1153). The ASU Web Devil reports that on Tuesday, the House Committee on Universities, Community Colleges, and Technology voted 5-2 to approve the bill that would prohibit universities from refusing to recognize or grant benefits to a student organization because the organization limits membership based on the religious, political or philosophical views of the organization. However recognition could be denied to groups that engage in "invidious" discrimination on the basis of race, color, national origin or sex. The bill was proposed after Arizona State University last year denied recognition to the Christian Legal Society because it limited membership on the basis of religion and sexual orientation. The lawsuit was settled after the University permitted the group to keep its requirement that members be Christians. (See prior posting.) ASU opposes the pending bill, arguing that student organizations at state universities should comply with the Arizona Board of Regents Code of Conduct that prohibits a wide variety of discriminatory activities.

Alternative Synod Leaders Prosecuted In Bulgaria

Forum18 yesterday reported on the dispute in Bulgaria between two wings of the Bulgarian Orthodox Church. The "Alternative Synod" was created by members who claimed that Patriarch Maksim was improperly elected to head the Church in 1971. Now two Alternative Synod leaders are being prosecuted for claiming to be Orthodox bishops, despite their lawyer's claim that the charges violate required separation of church and state in the country. Article 274, part 1, of the Criminal Code, punishes by large administrative fines or up to one year in prison anyone who is found to be "unwarrantedly committing an act within the scope of the office of an official which he does not occupy." Forum 18 says the cases were brought at the instigation of the Bulgaria's National Security Service. The Patriarchate remains the wing recognized by the rest of the Orthodox world and favored by government officials. Officials say that Bulgaria's 2002 religion law was specifically aimed at "reuniting" the divided Orthodox Church.

U.S. Agencies Debate Whether Title VI Covers Anti-Semitism

Today's New York Sun reports that the U.S. Department of Education is backing away from an earlier position that permitted it to investigate complaints of anti-Semitic harassment at universities receiving federal funds. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color or national origin by recipients of federal funding. However, Title VI does not mention religious discrimination.

In 2004, the Department's Office of Civil Rights said that under Title VI it could investigate discrimination against students of Jewish heritage even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law because at the time it was passed Jews were considered a distinct race. Recently, however, Stephanie Monroe, head of the Department of Education's Office of Civil Rights, has apparently taken the position that while harassment driven by a student's perceived Jewish ethnic origin would be subject to an OCR investigation under Title VI of the 1964 Act, harassment because of a student's Jewish religious beliefs, such as the wearing of a kippa, would not be covered by Title VI.

Meanwhile, the U.S. Civil Rights Commission is also bogged down in dispute over how far it should go in addressing anti-Semitic propaganda and harassment on campuses, including anti-Semitic activities disguised as anti-Israel advocacy. The issue will be on the agenda of the Commission's April 3 meeting.