Saudi Appellate Court Orders Retrial of Religious Police Defendants

Today's International Herald Tribune reports that in Saudi Arabia, the Cassation Court has overturned a not guilty verdict entered by a lower court against two members of the country's religious police force. The two had been accused in the death of Sulaiman al-Huraisi, a security guard who died in custody of the Commission for the Propagation of Virtue and the Prevention of Vice after its raid on al-Huraisi's home looking for alcohol and drugs. (See prior posting.) The new decision, citing mistakes in the original trial, orders the Riyadh lower court judge who issued the initial verdict to question witnesses and members of the religious police again.

Court Says California Lacks Standing To Challenge Federal Weldon Amendment

The federal Weldon Amendment (background) denies federal funds to state and local governments if they discriminate against health care entities that refuse to provide abortions. California law requires emergency health care facilities to provide medically necessary abortions. Yesterday in State of California v. United States of America, (ND CA, March 18, 2008), a California federal district court dismissed California's constitutional challenge to the Weldon Amendment, finding that the state lacked standing and that its claim was not ripe for adjudication. The court said that there is no clear indication that California's law would constitute "discrimination" under the Weldon Amendment, so there is no indication that there is any present conflict between state and federal law. The complaint in the case had alleged that the federal law violated Congress' spending authority and infringed women's right to privacy. Today's San Francisco Chronicle reports on the court's decision.

HHS Secretary Criticizes Medical Board's Abortion Rights Position

Last Friday, U.S. Health and Human Services Director Mike Leavitt sent a letter (full text) to the American Board of Obstetrics and Gynecology objecting to its apparent policy of requiring physicians who wish to maintain their Board certification to comply with ethics rules of the American College of Obstetricians and Gynecologists (ACOG). In November 2007, ACOG's Ethics Committee issued a report titled The Limits of Conscience Refusal in Reproductive Medicine. It conclude that physicians who have conscientious objections to performing abortions or other standard reproductive services "have the duty to refer patients in a timely manner to other providers." Leavitt said:

I am concerned that the actions taken by ACOG and ABOG could result in the denial or revocation of Board certification of a physician who -- but for his or her refusal, for example, to refer a patient for an abortion -- would be certified. These actions, in turn, could result in certain HHS-funded State and local governments, institutions, or other entities that require Board certification taking action against the physician based just on the Board's denial or revocation of certification. In particular, I am concerned that such actions by these entities would violate federal laws against discrimination.

Yesterday the Religious Coalition for Reproductive Choice issued a press release strongly criticizing Sec. Leavitt's letter, saying: "Secretary Leavitt's dogmatic indifference to the patient is bad medicine, misguided ethics, and political pandering. A great nation must make room for diverse beliefs--especially a nation founded on the principle of religious freedom."

Illinois Pharmacy Rules Argued Before State Supreme Court

Yesterday, the Illinois Supreme Court heard oral arguments in Morr-Fitz v. Blagojevich. In the case, a state appellate court had dismissed on justiciability grounds a challenge to State Pharmacy Board rules requiring drug stores to fill prescriptions for the "morning-after" pill, even where doing so violates a pharmacist's religious or moral beliefs. (See prior posting.) According to AP, the state argued to the Supreme Court that the pharmacists lack standing to pursue their lawsuit. Plaintiffs argued that they should be able to sue to protect their rights before their careers are ruined by license suspensions. A video of the oral arguments is available online from the Illinois Supreme Court's website.

White House Easter Egg Roll Scheduled

The White House has announced that its annual Easter Egg Roll will be held on Monday, March 24. The National Park Service is distributing free tickets on a first-come-first-served basis. The White House has also announced the scheduled entertainment for the event. The White House Visitor Center is hosting the State Egg Display. The American Egg Board selects an artist from each state to paint or decorate an egg for the display.

Obama Speaks Out On His Pastor's Views and On U.S. Race Relations

In a speech this morning, Presidential hopeful Sen. Barack Obama addressed the controversy over inflammatory rhetoric used in sermons by his long-time pastor, Rev. Jeremiah Wright. As reported by Reuters today, Obama already has denounced Wright's comments, describing Wright as an "old uncle" to him. Wright has also now retired as pastor of Chicago's Trinity United Church of Christ. Nevertheless, Wright's comments continued to pose problems for Obama's campaign. Today the candidate delivered a major speech in Philadelphia addressing his views of his pastor and more broadly dealing with racial divisions in America. (Washington Post).

Here are some lengthy excerpts dealing with Rev. Wright from Obama's remarks. The full text of his speech titled "A More Perfect Union" is definitely worth reading:

[W]e've heard my former pastor, Jeremiah Wright, use incendiary language to express views that have the potential not only to widen the racial divide, but views that denigrate both the greatness and the goodness of our nation and that rightly offend white and black alike.

I have already condemned, in unequivocal terms, the statements of Reverend Wright that have caused such controversy, and in some cases, pain. For some, nagging questions remain: Did I know him to be an occasionally fierce critic of American domestic and foreign policy? Of course. Did I ever hear him make remarks that could be considered controversial while I sat in the church? Yes. Did I strongly disagree with many of his political views? Absolutely, just as I'm sure many of you have heard remarks from your pastors, priests or rabbis with which you strongly disagree.

But the remarks that have caused this recent firestorm weren't simply controversial. They weren't simply a religious leader's effort to speak out against perceived injustice. Instead, they expressed a profoundly distorted view of this country, a view that sees white racism as endemic and that elevates what is wrong with America above all that we know is right with America; a view that sees the conflicts in the Middle East as rooted primarily in the actions of stalwart allies like Israel instead of emanating from the perverse and hateful ideologies of radical Islam. As such, Reverend Wright's comments were not only wrong but divisive, divisive at a time when we need unity; racially charged at a time when we need to come together to solve a set of monumental problems....

Given my background, my politics, and my professed values and ideals, there will no doubt be those for whom my statements of condemnation are not enough. Why associate myself with Reverend Wright in the first place, they may ask? Why not join another church? And I confess that if all that I knew of Reverend Wright were the snippets of those sermons that have run in an endless loop on the television sets and YouTube, if Trinity United Church of Christ conformed to the caricatures being peddled by some commentators, there is no doubt that I would react in much the same way. But the truth is, that isn't all that I know of the man. The man I met more than twenty years ago is a man who helped introduce me to my Christian faith, a man who spoke to me about our obligations to love one another; to care for the sick and lift up the poor....

Like other predominantly black churches across the country, Trinity embodies the black community in its entirety -- the doctor and the welfare mom, the model student and the former gang-banger. Like other black churches, Trinity's services are full of raucous laughter and sometimes bawdy humor. They are full of dancing and clapping and screaming and shouting that may seem jarring to the untrained ear. The church contains in full the kindness and cruelty, the fierce intelligence and the shocking ignorance, the struggles and successes, the love and, yes, the bitterness and biases that make up the black experience in America.

And this helps explain, perhaps, my relationship with Reverend Wright. As imperfect as he may be, he has been like family to me. He strengthened my faith, officiated my wedding and baptized my children. Not once in my conversations with him have I heard him talk about any ethnic group in derogatory terms or treat whites with whom he interacted with anything but courtesy and respect. He contains within him the contradictions -- the good and the bad -- of the community that he has served diligently for so many years. I can no more disown him than I can disown the black community. I can no more disown him than I can disown my white grandmother, a woman who helped raise me, a woman who sacrificed again and again for me, a woman who loves me as much as she loves anything in this world, but a woman who once confessed her fear of black men who passed her by on the street, and who on more than one occasion has uttered racial or ethnic stereotypes that made me cringe. These people are a part of me. And they are part of America, this country that I love....

We can dismiss Reverend Wright as a crank or a demagogue, just as some have dismissed Geraldine Ferraro in the aftermath of her recent statements as harboring some deep-seated bias. But race is an issue that I believe this nation cannot afford to ignore right now. We would be making the same mistake that Reverend Wright made in his offending sermons about America: to simplify and stereotype and amplify the negative to the point that it distorts reality. The fact is that the comments that have been made and the issues that have surfaced over the last few weeks reflect the complexities of race in this country that we've never really worked through, a part of our union that we have not yet made perfect.

Bishops' Blog Covers U.S. Papal Visit

The United States Conference of Bishops has created the USCCB's Papal Visit Blog, a new blog devoted to Pope Benedict XVI's six-day visit to the United States next month. Reporting on the blog, the Washington Post says: "No gossipy or scandalous entries."

Historic Vatican-Saudi Talks Explore Opening Church in Saudi Arabia

Yesterday's London Times reported that the Vatican is holding talks with Saudi Arabian authorities discussing the possibility of opening the first Roman Catholic church in Saudi Arabia. This became known the day after Qatar's first Catholic Church opened with an inaugural service attended by 15,000. The revolutionary step in Saudi-Catholic relations follows talks last year between King Abdullah and the Pope and the creation of a permanent Catholic-Muslim forum on interreligiouis relations after the Pope's controversial remarks on Islam at the University of Regensburg in 2006. (See prior posting.)

Wisconsin Village's Cross Display Is Questioned

The village of Holmen, Wisconsin finds itself in the midst of a church-state dispute according to yesterday's Holmen Courier. In 1960, a lighted star and cross were put up on Star Hill, then private property, with the cost of the display spit between the village and the Lion's Club. The cross is lit during the 40 days of Lent. Five years ago the village bought the property on Star Hill for use for a water reservoir. This has led resident Eric Barnes now to file an informal complaint with the village about the religious symbol on public land. So far the village has not responded.

Cert. Denied In Appeal of Injunction Against Disrupting Church Services

Yesterday the U.S. Supreme Court denied certiorari in Lady Cage-Barile v. Church of Christ in Hollywood, (Docket No. 07-8742) (Order List). In the case below, found at 2007 Cal. App. Unpub. LEXIS 6164 (CA Ct. App., 2007), the California Court of Appeals refused to dissolve an injunction that had been previously issued to prevent Lady Cage-Barile from entering the property of the Church of Christ in Hollywood, tearing down Church literature or disrupting services by profane language or unnecessary noise. The injunction was obtained after Cage-Barile, who disagreed with how the church was run, engaged in highly disruptive conduct at the Church. The Church's expulsion of her from membership failed to stop her from disrupting worship services.

New York Town Wants State To Pay for Prosecutions of Amish

In Morristown, New York, members of the town council have written newspapers urging the state to help pay for the town's prosecution of ten members of the conservative Swartzentruber Amish sect for building homes without a permit. Today's Watertown Daily Times reports that town officials say they are bearing the cost of a test case for enforcing state law. Costs include not just fees for the town's attorney, but also the cost of translating legal documents into Pennsylvania Dutch. In the first of the cases that is being tried, defendant's attorney claims religious persecution of his client.

UPDATE: Newsday on Tuesday reported that the Becket Fund for Religious Liberty has sent a 5-page letter supporting the Amish defendants to the town council, New York's Attorney General and the U.S. Department of Justice's Civil Rights Division. The letter says that their continued prosecution would violate a number of constitutional and statutory protections.

Iraqi Youth Becoming Skeptical of Religion

Today's Seattle Times, carrying an article published earlier this month in the New York Times, reports that Iraqi youth are becoming disenchanted with religion. Religious restrictions on their lives and religious violence have led at least some young people to reject Islam, a trend that runs counter to developments elsewhere in the Middle East. While the scope of this Iraqi disillusionment is unclear, there has been a decline in enrollment of graduate students in religion classes, and attendance at weekly prayer services appears to be down. The lengthy article is the second in a New York Times series on the lives of youth in the Muslim world at a time of religious revival.

Student At Center of Classic Released Time Case Reminisces

Last week marked the 60th anniversary of the U.S. Supreme Court's decision in McCollum vs. Board of Education which struck down a released time program for religious education in the Champaign, Illinois public schools. Today's Tennessean reports on a talk given Sunday by 70-year old James McCollum, the student who was at the center of the 1948 case. He describes how, even though he was excused from the classes offered by local ministers at the request of his family, he "was put in a desk in the hall during the religion class which was generally reserved for miscreants." He added, "When my mother heard about that, it hit the fan."

Battles Over Secularism In Turkey Lead To Indictment of Top Leaders

The struggle between religious and secularist forces in Turkey has reached a new level. According to today's Turkish Daily News, the country's chief prosecutor has filed a 162-page indictment against the ruling Justice and Development Party (AKP), charging it with trying to turn Turkey into an Islamic state. Alleging that AKP's activities are inconsistent with the secularism required by Turkey's constitution, the indictment asks Turkey's Constitutional Court to ban top AKP leaders (including the country's President and its Prime Minister) from politics for 5 years. Today's Zaman reports on Prime Minister Recep Tayyip Erdoğan's speech responding to the indictment. Commenting on the political and economic uncertainty that the case is likely to cause, Reuters points out that in the past Turkish courts have banned more than 20 parties for having Islamist or Kurdish separatist agendas.

Meanwhile Human Events today reports that Turkey's Department of Religious Affairs (the Diyanet) is attempting to modernize and reinterpret Islam. It has announced that 35 religious scholars in the Theology Department at Ankara University have nearly completed a three-year forensic examination of the Islamic Hadiths. The authenticity of some Hadiths-- handed down orally-- have been questioned by some scholars. However an op-ed in Today's Zaman questions more generally the ability of the Directorate of Religious Affairs to maintain the existing system of state-controlled Islam.

UPDATE: Today's Zaman reported on Wednesday that two separate complaints have been filed against Chief Prosecutor Abdurrahman Yalçınkaya, claiming he prepared a wrongful indictment seeking closure of the AKP. One complaint was filed by lawyer Lawyer Sabri Erdoğan; the other was filed by a private organization, Young Civilians.

Recent Articles and Books of Interest

From SSRN:

• Robert A. Kahn, Hate Speech and National Identity: The Case of the United States and Canada, (U of St. Thomas Legal Studies Research Paper No. 08-02, 2008).


• Martin H. Belsky, Alan Dershowitz: The Advocate and Scholar as Jew; the Jew as Advocate and Scholar, (Albany Law Review, 2008).


• Robert Luther, Robert & David B. Caddell, Breaking Away from the 'Prayer Police': Why the First Amendment Permits Sectarian Legislative Prayer and Demands a 'Practice Focused' Analysis, (Santa Clara Law Review, Vol. 48, No. 569, 2008).


• Christina E. Wells, Privacy and Funeral Protests, (March 10, 2008).


• Rajdeep Singh Jolly, The Application of the Religious Freedom Restoration Act to Appearance Regulations that Presumptively Prohibit Observant Sikh Lawyers from Joining the U.S. Army Judge Advocate General Corps, (Chapman Law Review, Vol. 11, p. 155, 2007).


• Edwin Baker, Hate Speech, (U of Penn Law School, Public Law Research Paper No. 08-09 2008).

From SmartCILP:

• Kathryn Boustead, The French Headscarf Law Before the European Court of Human Rights, 16 Journal of Transnational Law & Policy 167-196 (2007).


• Bruce L. Hay, Charades: Religious Allegory in 12 Angry Men, 82 Chicago-Kent Law Review 811-861 (2007).

Recent Books:

• Steven Waldman, Founding Faith: Providence, Politics and Birth of Religious Freedom in America, (Random House, March 11, 2008), reviewed in Newsweek.


• Tara Ross & Joseph C. Smith, Jr., Under God: George Washington and the Question of Church and State (Spence Publishing, 2008).

Israeli Civil Court Refers Case To Religious Sanhedrin Court

In Israel, a civil court-- the Netanya’s Magistrates Court -- has recognized the authority of the religious Sanhedrin Court for Matters of People and State-- an attempted reincarnation of a court from ancient Israel. (See prior posting.) Arutz Sheva reported on Sunday on the case of Tzviya Sariel who was arrested last December for allegedly pushing an Arab who entered her town to pick olives. While two witnesses have testified that she was not involved in the incident, nevertheless Sariel continues to be held in jail because she has refused to cooperate with the secular justice system. So Judge Smadar Kolander-Abramovitch ordered that Sariel be allowed to attend a hearing in the Sanhedrin court, hoping it would instruct here to recognize civil authorities. Instead the Sanhedrin court ordered that Sariel be released immediately. The Prisons' Authority said it recognizes the Sanhedrin court and will implement its order. However at last report, Sariel remained in jail. [Thanks to Jack E. Shattuck for the lead.]

8th Circuit Hears Oral Arguments In School Busing Case

On Friday, the U.S. 8th Circuit Court of Appeals heard arguments in Pucket v. Hot Springs School District. In the case, a South Dakota federal district court rejected a claim by students attending Bethesda Lutheran School and their parents that the state's temporary termination of busing of students to the parochial school violated their free exercise, speech and equal protection rights and violated the establishment clause. (See prior posting.) An audio recording of the oral argument is available from the 8th Circuit's website. Arguing for the students and their parents was the Becket Fund's Roger Severino who contended that South Dakota's Blaine amendments are unconstitutional under the federal Constitution, though the court's questioning focused instead on a number of factual details in the case.

Scientology Denied Restraining Order Against Anonymous Protesters

A Clearwater, Florida state trial court on Thursday denied a request by the Church of Scientology for a restraining order against threatened demonstrations by a group of protesters known only as "Anonymous". The St. Petersburg Times reported that Scientology churches around the world have received numerous harassing phone calls, obscene e-mails, bomb threats and death threats. Denying Scientology's request, Circuit Judge Douglas Baird said that the church had not tied any of the 26 defendants named in its lawsuit to the threats set out in the petition. ABC News reports that on Saturday, some 75 demonstrators, disguised to hide their identity, picketed Scientology's Clearwater headquarters. According to WikiNews last January, the group known as Anonymous issued a press release and a statement on YouTube announcing their "War on Scientology".

Craiglist Not Publisher of Discriminatory Classifieds On Its Website

In Chicago Lawyers' Committee for Civil Rights Under Law, Inc. v. Craiglist, Inc., (7th Cir. March 14, 2008), the U.S. 7th Circuit Court of appeals held that the online classified ad service, Craiglist, is not responsible under federal housing discrimination laws for discriminatory language in ads posted by third parties. Relying on the Communications Decency Act of 1996, the court, in an opinion by Judge Easterbrook, held that Craiglist is not to be treated as the publisher of the ads. Among the ads plaintiffs found objectionable was one which read "Catholic Church and beautiful Buddhist Temple within one block". Plaintiffs claimed this ad suggested a religious preference. The federal Fair Housing Act prohibits the publication of ads offering real estate for sale or rent where the ad indicates "any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin."

In a statement issued after the decision, the Lawyer's Committee for Civil Rights said: "While we are of course disappointed with the overall outcome of the case, we are gratified that the Court emphasized in the final paragraph of its decision that landlords and other housing providers who post discriminatory advertisements remain fully liable under the federal fair housing laws." Today's San Francisco Chronicle reports on the decision.

Article Suggests Path For Modern Revival of Shariah

In today's New York Times Magazine, Harvard Law Professor Noah Feldman writes on the revived interest in Shariah in the Muslim world. He suggests developments that could lead to revival of Shariah as "a path to just and legitimate government in much of the Muslim world." Here are some excerpts:

One big reason that Islamist political parties do so well running on a Shariah platform is that their constituents recognize that Shariah once augured a balanced state in which legal rights were respected.... [T]he traditional Islamic constitution rested on a balance of powers between a ruler subject to law and a class of scholars who interpreted and administered that law. The governments of most contemporary majority-Muslim states, however, have lost these features. Rulers govern as if they were above the law, not subject to it, and the scholars who once wielded so much influence are much reduced in status....

In the early 19th century, the Ottoman empire responded to military setbacks with an internal reform movement. The most important reform was the attempt to codify Shariah. This Westernizing process, foreign to the Islamic legal tradition, sought to transform Shariah from a body of doctrines and principles to be discovered by the human efforts of the scholars into a set of rules that could be looked up in a book. Once the law existed in codified form, however, the law itself was able to replace the scholars as the source of authority....

It is possible to imagine the electoral success of Islamist parties putting pressure on executives to satisfy the demand for law-based government embodied in Koranic law. This might bring about a transformation of the judiciary, in which judges would come to think of themselves as agents of the law rather than as agents of the state.