Role of Shariah In Malaysia Increasingly Questioned

In Malaysia, criticism is growing of Islamic fundamentalists who control the government's Islamic Affairs Department that administers Shariah law. Two events have prompted calls for change: (1) the passage last December of a new Islamic family law that makes divorce and polygamy easy and allows a husband to claim his wife's properties, and (2) the the forced Islamic burial last week of Mt. Everest climber, M. Moorthy, over his Hindu wife's objections. Western-educated Muslim feminists criticize the Islamic Affairs Department's strict interpretation of the Quran. The main opposition Democratic Action Party has called for a major review of Article 121(1A) of the Malaysian constitution, added in 1988, that strips civil courts of jurisdiction over "any matter" within the jurisdiction of the Shariah courts. A long background report on the situation today by Spero News says these developments have led to a questioning of "the role of an increasingly puritanical Islam in a multi-ethnic society that prides itself on tolerance and an easygoing, modern way of life".

Colorado Mayor Launches Faith-Based Program

Colorado Springs, Colorado mayor Lionel Rivera is initiating his Mayor's Faith Based and Community Initiatives program, according to today's Colorado Springs Gazette. He will use the mayor's office to link charities in need of volunteers with churches, synagogues and mosques that can supply them. This will be done through the city's Web site and e-mails the mayor sends to a database of leaders in the religious and nonprofit communities. Citizens Project executive director Ellie Collinson questions the approach. "For the government to target specifically faith-based organizations, I think, is not the best use of taxpayer money, and I would rather see the private sector get involved in that sort of activity," Collinson said. "And certainly the mayor could endorse it as a worthwhile effort, but I don't see the need for spending city services in order to make the project happen." The mayor says he will gladly accept nonfaith-based groups into his program.

Happy New Year To Religion Clause Readers

Dear Religion Clause Readers,

Happy New Year. A bit over 8 months ago, I began this blog, somewhat on a whim, but with the perception that there was a need for the type of coverage it provides. A half hour after the New Year arrived on the East Coast of the United States, visitor number 22,228 logged onto Religion Clause. That hardly ranks it at the top of world readership, but I am pleased to have attracted those numbers.

Thanks in particular to my regular readers. Your comments, tips, and links from your own blogs are appreciated. If you enjoy Religion Clause, please take a moment today to e-mail others who you think might like to add the blog to their daily reading.

I invite all readers to e-mail me with comments or ideas-- whether on coverage, format, linking policy or other topics. I cannot promise to incorporate every suggestion—after all one of the virtues of blogs is that they permit an author to indulge a personal style and approach without the intervention of editors and marketers. However, I will read all suggestions with an open mind. Happy New Year!

[photo from New Media Journal.us]

Conscientious Objector Claims In U.S. Military Growing

Yesterday, the Associated Press reported on the small, but growing, number of U.S. soldiers, disillusioned with the Iraq war, who are applying for conscientious objector status. In 2004, some 110 applied, a four-fold increase from 2000. About half the applications were approved.

Creditors of Portland Archdiocese Can Reach Parish Properties

Yesterday, U.S. Bankruptcy Judge Elizabeth Perris in Portland, Oregon, issued three separate opinions in Roman Catholic Archbishop of Portland v. Tort Claimants Committee. The two major opinions held that parish church, school and cemetery properties are part of the assets of the Archdiocese and that at least some of those properties are available to creditors of the Archdiocese to satisfy their claims in the Archdiocese bankruptcy proceedings.

In the major opinion, the court rejected First Amendment challenges to its jurisdiction, holding that a determination of whether parish properties are part of the bankruptcy estate does not involve its deciding a theological or doctrinal matter. Finding that the Archdiocese had not separately incorporated its parishes or schools, the court said:

What defendants ask this court to do in the name of religious freedom is to disregard the choice debtor has made about how to hold property under civil law, because of their argument that the choice leads to a result not consistent with canon law. It is not for the civil courts to enforce canon law if the actions of the religious organization under applicable civil law do not effectuate what canon law requires.

However, the court had more difficulty with the Archdiocese claim that the Religious Freedom Restoration Act protected it from having church and school properties sold off to satisfy creditors' claims. In its second opinion, focusing on the bankruptcy trustee's right to ignore claims of parishes and schools to the properties, the court said:

that there is a question of fact whether application of the avoidance powers under Sec. 544(a)(3) might substantially burden the exercise of religion in violation of RFRA, if it were to result in the loss of so many parish churches and Archdiocesan high schools that it would leave defendants with no place to worship and study.

However the court left that determinationn to future litigation, suggesting that it might limit the number of properties that could be sold off.

Finally, a third opinion focused on the scope of questioning that the Tort Claimants Committee could engage in when taking the depositions of the Archbishop and other witnesses. Among other things, the court held that the First Amendment does not protect against questions about internal church governance where that is relevant to the Church's patterns, practices, and policies in addressing priest sexual misconduct with minors.

The Associated Press, reporting on the opinions, points out that they mirror an earlier decision in the bankruptcy of the Diocese of Spokane, Washington.

Atypical RLUIPA Issues Decided

Two RLUIPA cases that have recently become available address some of the more obscure issues posed by RLUIPA.

Lighthouse Institute For Evangelism, Inc. v. City of Long Branch, 2005 U.S. Dist. LEXIS 36425 (D NJ, Dec. 27, 2005) involved a challenge to Long Branch, New Jersey's Redevelopment Ordinance by a church that wished to locate in an area in which churches were not a "permitted use." One of the church's RLUIPA claims was brought under 42 USC 2000cc(b): "No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution." Rejecting the approach of some other courts, New Jersey federal district Judge William Walls held that subsection (b) is violated only if there has been a "substantial burden" placed on the church's free exercise of religion.

The opinion in Williams v. Gerges, 2005 U.S. Dist. LEXIS 36958 (ED NY, July 26, 2005), which has only recently become available even though it was decided 5 months ago, holds that the four year statute of limitations under 28 USC 1658(a) applies to RLUIPA actions. That provision applies to civil actions arising under any federal law enacted after December 1, 1990. This is so even thought the statute of limitations for a First Amendment claim brought under 42 USC Sec. 1983 may be shorter. Courts have found the limitations period under Section 1983 to be the statute of limitations applicable to personal injury actions occurring in the state in which the federal court sits.

It's Not Over In Dover-- Election Re-Run For 1 Board Seat Tuesday

It was widely reported in November that residents of Dover, Pennsylvania voted out the 8 incumbent school board members who supported the teaching of intelligent design, and elected challengers who opposed teaching this alternative to evolution in science classes. (See prior posting.) However, the election battle is not over. Today's Harrisburg Patriot-News reports on the little-noticed development. Board incumbent James Cashman lost to challenger Brian Rehm by only 96 votes. Cashman sued, and a county judge has now ordered a partial re-vote because it appears that one voting machine malfunctioned. Cashman received only one vote on that machine, while other incumbents each received about 100 votes. So next Tuesday there will be a special election open only to the 817 people who voted on Nov. 8 at the precinct in question.

California's Extension of Time To Sue For Childhood Sexual Abuse Upheld

On Dec. 21, the U.S. District Court for the Southern District of California issued an opinion in Melanie H v. Defendant Doe 1 (Civ. No. 041596-WQH-(WMc), rejecting a constitutional challenge by the Catholic Church to California's extension of the statute of limitations in priest childhood sexual abuse cases. The opinion is not yet available online, except through the court's PACER system (account required). The Bishop of San Diego and Sisters of Precious Blood argued that California's SB 1779 (Cal. Code of Civil Procedure Sec. 340.1) violates the free exercise, establishment, due process, ex post facto and bill of attainder clauses of the U.S. Constitution.

The court concluded that SB 1779 does not burden the Church's choice, supervision or retention of priests, and that the financial burden in defending lawsuits is not a burden on religious belief or practice. It also found that the statute does not favor or disfavor one religion over others, nor will it lead to excessive entanglement of Church and state. The court found that the claim that defendants due process rights were violated is premature and that SB 1779 is not per se unconstitutional under the Due Process Clause. Finally, it rejected the ex post facto and bill of attainder claims.

Reporting on the decision, last week's Los Angeles Times pointed out that this is the second case to reject constitutional challenges to SB 1779.

NJ Township Permits Creation Of Eruv

In Maplewood Township, New Jersey, the Township Committee has approved a proposal by two Orthodox Jewish congregations to mark existing telephone poles and wires in order to create an eruv around the town-- a symbolic boundary that will permit observant Jews to carry objects and push strollers on the Sabbath. Yesterday's New Jersey Jewish News reports that the proposal was approved by a vote of 4-1. The lone dissenter, Vice Mayor Ian Grodman, said: "I have a problem with the township getting involved in what amounts to a violation of the Establishment clause." However, in 2002 in a case from Tenafly, New Jersey, the U.S. Third Circuit Court of Appeals rejected the argument that permitting an eruv would create establishment clause problems.

Top Ten 2005 Church-State/ Free Exercise Developments

Here are my picks for the Top Ten developments in Church-State Separation/Free-Exercise of Religion in the United States in 2005. Each development has been the subject of many postings over the year. A link to one typical story on the issue accompanies each pick. I invite comments by those who agree or disagree with my choices.

1. Supreme Court rules on 10 Commandments displays.
2. Intelligent Design is at center of public controversy.
3. Supreme Court nominees are scrutinized over their 1st Amendment religion views.
4. The "Christmas wars" heat up-- "holiday" vs. "Christmas".
5. Government funding of faith-based organizations remains controversial.
6. Proselytization at the Air force Academy creates controversy.
7. RLUIPA is upheld as constitutional by Supreme Court and lower courts.
8. Courts strike down sectarian legislative prayers.
9. Christian student groups demand university recognition: non-discrimination vs. free exercise.
10. Accommodation of Muslim religious beliefs and practices increases.

Also you might want to compare my picks with the Religion Newswriters Association's top 10 news events of 2005, a somewhat broader category than mine.

Judge Denies Request To Amend Indiana Legislative Prayer Ruling

Indiana federal district judge David Hamilton on Wednesday denied a request to amend his order banning sectarian prayer in the Indiana House of Representatives. (See prior posting). This clears the way for an appeal. House Speaker Brian Bosma argued that the ruling was too vague to enforce. The Indianapolis Star today reports that the refusal was accompanied by this warning from Judge Hamilton: "If the speaker or those offering prayers seek to evade the injunction through indirect but well understood expressions of specifically Christian beliefs, the audience, the public, and the court will be able to see what is happening. In that unlikely event, the court will be able to take appropriate measures to enforce" the injunction.

Hindu Couple Appeals Ban On Cows In City Limits

Yesterday's New York Newsday reports that a Hindu couple, Stephen and Linda Voith, earlier this month filed an appeal of a New York trial court's decision that prohibits them from keeping their six cows within the city limits of Angelica, NY. An Angelica village ordinance prohibits the keeping of farm animals without a permit unless the owner has at least 10 acres of land on which the animals can graze. Hinduism considers protecting cows a sacred obligation. The Voiths, members of the Krishna Consciousness branch of Bhakti Hinduism, claim that the cows are not farm animals. They see them as being among their family members and integral to the practice of their religion. A supporter of the Voith's position has even created a website to explain and advocate their cause.

Contempt Finding After Settlement Of Church Dispute Dismissed

In Foster v. Collins, (TN Ct. App., Dec. 27, 2005), a Tennessee appellate court dismissed a case involving a dispute between church members and church leadership over expenditure of church funds and renewal of the employment contract of the church's pastor, Dr. Frank Thomas. Originally a group of church members sued claiming that members should vote on whether or not to retain Thomas. Church leadership agreed to hold an election under court-ordered election guidelines. Members voted to renew, and plaintiffs then filed a petition to hold the leadership in contempt for violating the election guidelines. The parties negotiated a settlement of this claim, but then members filed another series of contempt petitions, alleging violation of that settlement agreement. The trial court found defendants in contempt. However, the Court of Appeals ordered the case dismissed, finding a lack of jurisdiction from the beginning because selection and termination of clergy are ecclesiastical matters in which courts cannot, under the First Amendment, interfere. Since the order on which the Chancery Court based its finding of contempt was void, the court could not find disobedience of that order constituted contempt.

RLUIPA and Church Signs

In Baltimore County, Maryland, the zoning Board of Appeals is considering another twist on RLUIPA, according to yesterday's Towson Times. In June, a state circuit court judge ordered the Board to consider the impact of RLUIPA on the request by Trinity Assembly of God Church in Ruxton for a zoning variance to permit it to put up a neon, 25-foot-high, 250-square-foot sign with a changing electronic message. The Church wants to place the sign on its property next to the Baltimore Beltway to help eastbound drivers find the megachurch. At hearings on Dec. 21, Trinity's lawyer, C. William "Bud" Clark, argued that it would place a "substantial burden" on the church to require a smaller sign because there would be no room for scriptural messages or times of services. The county argued however that neutral application of sign controls in a residential zone is not a burden on religious exercise. The Board plans public deliberations on the matter at a future date.

O Centro Oral Argument Transcript Now Online

The full transcript is now online of the November 1 oral arguments in the U.S. Supreme Court in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal. The case involves the federal government's attempt to bar a New Mexico church from using a hallucinogenic tea in religious ceremonies. (See prior posting.) Usuallly transcripts are posted by the Supreme Court 2 to 3 weeks after argument. The Court did not explain the delay in this case.

Hawaiian Group In Contempt For Refusing Disclosure of Artifacts

Hawaii KITV reported yesterday on the latest installment in the dispute between Hui Malama and 13 other Hawaiian groups. (See prior posting.) Hawaii federal district court judge David Ezra Tuesday found four members of Hui Malama I Na Kupuna O Hawaii Nei in contempt and jailed one of them-- Edward Halealoha Ayau, executive director of the group-- for refusing to say where they buried Native Hawaiian burial artifacts borrowed from Bishop Museum. Other Hawaiian groups had claimed that they had a right to participate in determining the disposition of the objects. Hui Malama refused to obey the court order to return the artifacts both because they said the cave could collapse if they opened it, and because their religious beliefs hold that digging up the artifacts will violate the kupuna (ancestors). Today's Honolulu Star-Bulletin chronicles the courtroom disruptions that Judge Ezra faced during the contempt hearing.

Orthodox Jewish Group Supports Alito

The Orthodox Union, representing a large segment of Orthodox Jews in the United States, has sent a letter to the Senate Judiciary Committee supporting Supreme Court nominee Samuel Alito, Jr. , according to a report yesterday from the JTA. The letter from O.U.’s Institute for Public Affairs said it is impossible to view Alito’s positions on the separation of church and state as out of the mainstream. "Only those who would advocate the most extreme views of religion-state relations in America — either total separation or total integration — could assert as much," the letter said.

Malaysia Court Rules Against Hindu Widow On Burial

In Malaysia today, a High Court judge held that he had no jurisdiction to overrule the findings of a Sharia court that an ex-army commando, M. Moorthy, was a Muslim convert and should be buried as a Muslim. Moorthy, who Died December 20, took part in a nationally celebrated Malaysian expedition to Mount Everest in 1997. According to today's China Post, the High Court refused to turn Moorthy's body over to his Hindu wife, instead giving possession to the Islamic Affairs Department. Judge Raus Sharif also refused to issue an order preventing cremation or burial of body while Moorthy's widow appeals. The Islamic Affairs Department did not provided any documentary proof of the Moorthy's alleged conversion, saying he did it verbally. His widow claims he remained a Hindu.

Curandero Indicted For Practicing Medicine Without License

In Travis County, Texas on Tuesday, William G. Martinez of San Antonio was indicted for practicing medicine without a license after he advertised his services as a "curandero" (a Santeria spiritual healer or witch doctor). Today's Austin-American Statemsan reports that an Austin man suffering from stomach pains responded to Martinez's television advertisement, and was told that he had three animals in his stomach. Martinez treated the man with charcoal and an unknown liquid, and later conducted religious rituals to rid him of his ailments, for which Martinez (also known as Gregorio) was paid almost $9000.

Korean Commission Urges Alternate Service For Conscientious Objectors

South Korea's National Human Rights Commission Monday recommended that the Ministry of Defense and the National Assembly find alternate forms of service for conscientious objectors who refuse military conscription. The Korea Times reports that the Ministry of Defense responded negatively to the recommendation. The Chosun Ilbo editorialized against the recommendation, pointing out that last year Korea's Constitutional Court upheld the Military Service Law that punishes conscientious objectors, saying "a recognition of conscientious objection harms the common benefit of national security, a prerequisite to the state's survival and all freedoms." The editorial argues that at least the Commission should draw up criteria to determine when a conscientious objector is genuine.