Gonzales Speaks On DOJ's Enforcement of Religious Liberty Protections

Yesterday, U.S. Attorney General Alberto Gonzales spoke at the Detroit Economic Club on DOJ's "Successful Record on Enforcing Our Nation's Civil Rights Laws" (full text). His talk covered a wide range of civil rights issues, including religious liberty. Here is some of what he had to say on that topic:

The Department of Justice has aggressively enforced the laws against religious discrimination in everything from education, to employment, to fair housing. For example, after years without any investigations involving religious discrimination in education, the Department has opened 40 investigations....

In one case we stood in defense of Nashala Hearn, a Muslim girl in the sixth grade in Muskogee, Oklahoma, whose school told her that she could not wear a headscarf required by her faith.... I'm especially proud of these cases, because no child should have to choose between the right to practice her religion and the right to an education.

As part of our ongoing efforts to strengthen and preserve religious liberty..., in February I unveiled ... the First Freedom Project.... We also have worked actively to protect those who have been endangered because of their religion or ethnicity.... In one case a man... built two incendiary devices... and attacked the Islamic Center of El Paso, Texas....

And we saw subtler forms of bigotry, imposed not through fire, but through law, as communities used zoning rules to restrict religious freedom. When the Muslim Community Center in Morton Grove, Illinois, wanted to expand its facilities... they encountered exactly this type of backlash. The Department mediated a resolution.... We aggressively pursue hate crimes and discrimination cases like these because they strike not just at individuals but at whole communities.

Hearing Held In Challenge To NC Ban On Use Of Quran To Swear In Witnesses

Yesterday, a state trial court in Wake County, North Carolina heard arguments in the case of American Civil Liberties Union of North Carolina, Inc. v. State of North Carolina (full text of complaint), after the case was remanded by a state Court of Appeals that found it presented an actual case or controversy. The lawsuit seeks a declaratory judgment that the North Carolina statute on administering oaths should be interpreted to allow a witness to use not just the Christian Bible, but holy books from other traditions as well. The complaint also asks that if the court does not agree with that interpretation, that it declare the statute unconstitutional. Yesterday's Winston-Salem Journal reports that the suit, filed in July 2005, stems from a case in which a Muslim woman was not allowed to use the Quran in being sworn as a witness. The state argued that the ACLU's complaint should be dismissed as being a political question.

Islamic Militants Confiscate Music Tapes In Pakistan Tribal Province

In Pakistan's tribal region of North Waziristan, armed Islamic militants began last Sunday to confiscate music cassettes from public buses and are ordering shops selling cassettes and CDs to only sell "jihadi" recordings, i.e. ones featuring sermons, or featuring songs (without musical accompaniment) that praise holy war and jihadists. Reporting on this yesterday, the Associated Press said that the campaign is similar to that of the former Taliban regime that banned music, movies, TV and other forms of entertainment in its attempt to strictly enforce Islamic law.

Preacher Challenges Permit Requirement and Noise Limits Imposed By Alabama City

Last week a federal lawsuit was filed on behalf of Christian evangelist, Rev. Wesley Sewell, against the city of Jacksonville, Alabama, challenging its ordinance that severely limits the use of loudspeakers and its requirement to obtain a permit before preaching on public sidewalks. (ADF Press Release.) The complaint (full text) says that the city's prohibition on sound devices that can be heard more than 10 feet away and the city's permit requirement that has no written guidelines, violate Sewell's free speech, due process, equal protection and free exercise rights under the U.S. Constitution, as well as his rights under the Alabama Constitution's Religious Freedom Amendment.

Wall Street Journal Profiles Alliance of Russian Rabbi and Putin

Today's Wall Street Journal carries a front page article [subscription required] on Russia's powerful Chabad-Lubavitch Rabbi Berel Lazar and his close ties to Russian President Vladimir Putin. The article says that Lazar's organization, the Federation of Jewish Communities of Russia, was promoted by Putin in 2000 as part of his battle against oligarch and media mogul Vladimir Gusinsky who had led a competing organization, the Jewish Congress. Critics say that in exchange for Putin's support-- including support in gaining control of millions of dollars of Jewish communal property from the state-- Lazar has played down anti-Semitism in Russia and lobbied for Mr. Putin abroad. [Thanks to Steven H. Sholk for the lead.]

Christian Group Supports Comprehensive Immigration Reform

Today's New York Times reports on activities of a new coalition of over 100 largely evangelical Christian leaders who are pressing for comprehensive immigration reform. Christians for Comprehensive Immigration Reform pushes generally for bills that combine increased border security with guest worker and legalization programs. The group plans to initially focus on media and church members in Arizona, Florida, Kansas, Ohio and Pennsylvania. A press release by Faith in Public Life says that the group "will will place ads nationally and locally in newspapers and mobilize at least 200,000 letters, tens of thousands of calls, and hundreds of lobby visits to Members of Congress by the August recess."

9th Circuit Rejects Religious Challenge To Social Security

Yesterday in Hansen v. Department of Treasury, (9th Cir., May 7, 2007), the U.S. 9th Circuit Court of Appeals avoided deciding a Constitutional challenge to 26 USC 1402(g), the Internal Revenue Code provision that grants an exemption from Social Security taxes only to members of "a recognized religious sect ... [with] established tenets or teachings... by reason of which [the taxpayer] is conscientiously opposed to acceptance of the benefits of any private or public insurance...."

Jonathan Hansen, a Mormon, said he interpreted the teachings of his church as being opposed to participation in the Social Security system. The court held that the Anti-Injunction Act precludes it from deciding Hansen's claim that he is eligible for the exemption or else that the portion of the statute that renders him ineligible is unconstitutional. It ordered these claims dismissed. The court went on to dismiss Hansen's claims challenging the requirement to have a social security number and his claim that various Treasury regulations unconstitutionally discriminate against him. The court said that Hansen's complaint failed to specify which regulations and statutes are being challenged. Reuters yesterday reported on the decision and Hansen's reaction to it. [Thanks to How Appealing for the lead.]

In St. Louis: Voter Education or Church-State Breach?

In an innovative attempt to educate the public on use of new touch-screen voting technology, the St. Louis Election Board has raised an interesting church-state issue. According to today's St. Louis Post Dispatch, the Board has loaned the new machines to two different churches for use in their congregational votes on new pastors. Election board workers volunteered their time in at least one of the cases. Then election-board chairman Ed Martin says that this is part of an outreach program, especially to ethnic communities. However, Barry Lynn, executive director of Americans United for Separation of Church and State says: "Internal church business is absolutely, positively no business of the St. Louis Board of Elections."

Florida Episcopal Diocese Prevails Against Breakaway Church

In Episcopal Church in the Diocese of Florida, Inc. v. Lebhar, (FL 4th Cir., April 27, 2007), a Florida state circuit court upheld the claim of the Episcopal Diocese of Florida to the Jacksonville property on which the break away Church of the Redeemer is located. The court held that in an hierarchical church, a civil court is required to respect the determination by the Bishop of the Episcopal Diocese that the defendants-- the Rector, Wardens and Vestry of the church-- had abandoned the Episcopal Church when they announced that the Church would affiliate with the Anglican Church of Uganda. Yesterday's Episcopal News Service reported on the decision. The court, however, refused to grant summary judgment on the Diocese's request for attorneys' fees, deciding that questions of fact remained to be determined. The court said that this aspect of the case poses the interesting question of whether awarding attorneys' fees in a dispute within an hierarchical church would impermissibly entangle the court in the internal decisions of the church.

Baltimore May Require Religious Accommodation By Condo Boards

Last month, Baltimore City Council member Rochelle "Rikki" Spector proposed legislation to prohibit rules in multifamily dwellings that "deny reasonable accommodation" to practice one's religion. Today's Baltimore Sun reports that in one Baltimore condominium, residents are battling over whether the building will accommodate Orthodox Jews by having a "Sabbath elevator". In February, the condo board voted 5-3 to strike from the contract to renovate the building's two elevators a clause that would have programmed one of them to stop automatically on every floor on Saturdays. Orthodox Jews are able to use elevators that are pre-programmed in this way on their Sabbath without violating Jewish religious law. Spector's bill had used Sabbath elevators as a specific example of accommodation, but after meeting with the Strathmore Tower condominium board, she said she would remove the example from the proposed law. Another condominium in Baltimore has struggled over whether to permit Orthodox Jews to use a security door on Saturdays to shorten their walk to synagogue. In the 2005, the Imperial Condominium board voted for security reasons to deny access to the security door, changing a 20 foot walk into one of several blocks.

ACLU Says Government Funded Abstinence Program Is Religiously Based

The ACLU has charged in a letter to the Secretary of Health and Human Services last week that federal grants for abstinence-only-until-marriage programs are being used unconstitutionally to fund the Stop and Think program in Oregon, South Dakota and Wyoming. The ACLU charges that contracts entered by federally funded social service agencies require that Stop and Think presenters be Christians, suggesting that religion is an essential part of the Stop and Think program. (ACLU Press Release). The Oregon ACLU has written the Oregon Department of Human Services which acts as a conduit for some of the federal funds involved, also asking it to investigate. A posting on Saturday on Talk To Action has a longer discussion of the issue. Stop and Think's website makes no mention of religion in discussing its program. [Thanks to Blog From the Capital for the lead.]

NYC Resolution Would Mark 350th Anniversary of Flushing Remonstrance

Historians say that the first formal exercise of religious freedom in the American colonies was the Flushing Remonstrance of December 27, 1657. Its 31 signers demanded that then-Governor of New Amsterdam, Peter Stuyvesant, allow the free exercise of religion and protested his ban on practicing any religion other than that of Dutch Reform Church-- particularly his prohibition on receiving Quakers. Four of the signers of the Remonstrance were arrested. New York plans to commemorate the 350th anniversary of the document in December in a ceremony that includes descendants of the original signers. According to the Gotham Gazette, New York City Council member Helen Sears this week proposed Resolution 825 to formally commemorate the signing of the document.

Mexico City Archbishop Sued Over Opposition To Abortion Law

Today's California Catholic Daily says that in Mexico, the Social-Democrat Alternative Party has filed a lawsuit against Cardinal Norberto Rivera, Archbishop of Mexico City. It alleges that he violated prohibitions on political activity by clergy through his outspoken opposition to the recent legislation in Mexico City legalizing abortion. (See prior posting.) The suit claims that the Cardinal violated Article 130 of the Mexican Constitution which provides: "Ministers may not associate among themselves for political ends, or preach in favor of or against any political candidate, party, or association. Neither may they oppose the laws of the country or its institutions ... in public meetings, acts of the sect, or religious literature."

Recent Articles of Interest

From SSRN:
Richard W. Garnett, Church, State, and the Practice of Love, (Villanova Law Review, Vol. 52, p. 281).

The Winter 2007 issue of the Journal of Church and State (Vol. 49, No. 1) has recently been published.

Scott C. Idleman, Religion and Government-- An Ongoing Experiment, Marquette Lawyer, Spring/Summer 2007, pg. 12.

From SmartCILP:
Nusrat Choudhury, From the Stasi Commission to the European Court of Human Rights: L'affaire du Foulard and the Challenge of Protecting the Rights of Muslim Girls, 16 Columbia Journal of Gender & Law 199-396 (2007).

Bruce J. Dierenfield, The Most Hated Woman in America: Madalyn Murray and the Crusade Against School Prayer, 32 Journal of Supreme Court History 62-84 (2007).

Kenneth L. Marcus, The Most Important Right We Think We Have But Don't: Freedom From Religious Discrimination in Education, 7 Nevada Law Journal 171-181 (2006).

Prakash Shah, Thinking Beyond Religion: Legal Pluralism in Britain's South Asian Diaspora, 8 Australian Journal of Asian Law 237-260 (2006).

Israel's AG Moves To Revoke Contested Appointments of Religious Court Judges

As previously reported, in March a petition was filed with Israel's High Court of Justice challenging the appointment of 15 judges-- mostly ultra-Orthodox-- to the country's rabbinic courts. While the petition focused primarily on technical issues, the true dispute is over whether judges will reflect a spectrum of views on Jewish law. According to yesterday's Haaretz, as the date for responding to the petitions in the High Court approaches, Attorney General Menachem Mazuz has directed Justice Minister Daniel Friedman to cancel the appointments. Apparently the Justice Ministry will tell the High Court that the procedural issues raised in the petitions can be dealt with, but that this might take longer than merely reopening discussions by the Rabbinic Judges Appointments Committee. Today's Jerusalem Post reports that the legal issue presented is the fact that certificates granting 14 of the 15 elected rabbis the right to serve as religious court judges had expired before the election took place. They need to be renewed every two years, and now have been, so that a new election could take place quickly.

Rabbinic Court judges are supposed to be experts in religious law, but also have "a general or legal education" and "knowledge of languages." Also preference is to be given to candidates "who are involved in Israeli society and who have served in the army or been involved in public affairs." The modern Orthodox rabbis' group, Tzohar, is concerned that these criteria are being ignored.

Suit On Church Rental of State Building Space Settled

The Alliance Defense Fund has announced that last Thursday it voluntarily dismissed a suit it had filed against New York state officials challenging a policy that prevented the renting of a conference room in a Watertown, NY state office building to the Relevant Church for Easter services. (See prior postings, 1, 2.) State officials have now adopted a policy that permits renting space in the Dulles State Office Building for religious activities or services on the same terms as it is rented to private groups for other educational, cultural and civic activities. The dismissal in Relevant Church v. Egan was "without prejudice" so that the suit can be re-filed if officials do not carry out the new policy.

Britain's Lord Chancellor Says Veil Can Be Banned By Schools

Britain's Lord Chancellor, Lord Falconer, yesterday in a speech to a convention of head teachers said that the Muslim full-face niqab, as well as the full-length jilbab gown, can be banned from British classrooms. Today's London Daily Express reports on Falconer's confirmation that school uniform policies can ban students from wearing these items. Pointing to a decision last year by the British House of Lords, he said that "common sense and human rights are entirely in line with each other".

Recent and Upcoming Books on Law and Religion

Philip Jenkins, God's Continent: Christianity, Islam, and Europe's Religious Crisis, (Oxford Univ. Press, May 2007).

Malcolm B. Yarnell III, First Freedom: The Baptist Perspective on Religious Liberty, (B&H Publishing, May 2007) (Press release).

Bruce J. Dierenfield, The Battle Over School Prayer: How Engel v. Vitale Changed America, (Univ. Press of Kansas, April 2007).

Stephen Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America . . . and What's Happened Since, (Thomas Nelson, June 2007).

Matthew Chapman, 40 Days and 40 Nights: Darwin, Intelligent Design, God, OxyContin, and Other Oddities on Trial in Pennsylvania, (HarperCollins, April 2007).

NC Supreme Court Dismisses Challenge To Use of Church Funds

In Harris v. Matthews, (NC Sup. Ct., May 4, 2007), the North Carolina Supreme Court dismissed on First Amendment grounds a claim by a faction of the church that its pastor and certain church officials breached their fiduciary duties by improperly using church funds. The majority held:

Determining whether actions, including expenditures, by a church's pastor, secretary, and chairman of the Board of Trustees were proper requires an examination of the church's view of the role of the pastor, staff, and church leaders, their authority and compensation, and church management. Because a church's religious doctrine and practice affect its understanding of each of these concepts, seeking a court's review of the matters presented here is no different than asking a court to determine whether a particular church's grounds for membership are spiritually or doctrinally correct or whether a church's charitable pursuits accord with the congregation's beliefs. None of these issues can be addressed using neutral principles of law.

Justice Brady wrote a concurring opinion, taking a restrictive view of the reach of the Establishment Clause. He wrote:

The "wall of separation" metaphor should only be used, if at all, in cases such as the one sub judice. In other words, the gate to the "wall of separation" only swings one way, locking the government out of ecclesiastical matters.

Justices Hudson and Timmons-Goodson dissented arguing that it was improper to grant an interlocutory appeal in the case and that the case merely presents a property dispute that can be resolved by civil courts using neutral principles of law.

Turkey's Gul Pulls Out of Race As Country Debates Secularist Tradition

In Turkey this morning, Foreign Minister Abdullah Gul withdrew his candidacy for the presidency as Parliament once again failed to muster the quorum necessary to proceed with a vote. Members of Parliament from Turkey's secularist party again boycotted the session. (AP). These developments occurred as tens of thousands of Turks demonstrated in Manisa in support of Turkey's secularist tradition and against the perceived increase of Islamic influence that would follow from Gul's election. (New York Times.) Gul's AK Party has Islamic roots, but claims that it is modern and has moved beyond its Islamic roots. (CNN).

Meanwhile this morning two papers in Britain have interesting analyses of the tensions in Turkey. The Guardian says:

The conflict has been as much about political power and class as it has been about Islam. The simple version paints out inconvenient facts: Erdogan's avowed support for secularism, an AKP whose leadership rejects the label of Islamist, and a programme dedicated to gaining EU membership and attracting foreign investment.

But underpinning this confrontation is something more mundane. It is the fear of the wealthy, highly educated and westernised elite that has traditionally run Turkey - and who are secular - of being pushed aside by a newly-powerful group made up of the urban poor and the lower-middle classes, a group that is conservative and religiously observant.

Today's London Times reports that the complex dispute has become symbolized by controversy over whether Turkish women should wear the the Islamic headscarf. Gul's wife does.

Impacting all of this is a vote in Parliament last Thursday giving initial support to an AKP proposal for direct popular election of the President, instead of the President being elected by Parliament. (Sunday's Zaman). (See prior related posting.)

UPDATE: Monday's Turkish Daily News also has an analysis of the situation, saying that it is more a political battle than a religious one. And a Newsweek columnist reports on his interview with Abdullah Gul who denies that the AKP has an Islamist agenda.