School's Decision To Exclude Religious Music From Graduation Upheld

Last week in Nurre v. Whitehead, 2007 U.S. Dist. LEXIS 70049 (WD WA, Sept. 20, 2007), a Washington federal district court rejected a complaint by a student member of a high school wind ensemble that his constitutional rights were violated when school officials rejected the Ensemble's decision to play Franz Biebl's instrumental arrangement of "Ave Maria" at the 2006 Jackson High School graduation ceremony in Everett, Washington. Officials decided that all religious music should be kept out of graduation. The court rejected plaintiff's First Amendment speech claim, as well as her Establishment Clause and Equal Protection claims. The court held that the Ensemble's performance of "Ave Maria" at graduation would have borne the imprimatur of the school, and the state therefore had an interest in preventing possible Establishment Clause problems that would arise if the musical piece had been permitted.

UPDATE: Here is the full opinion in a non-proprietary database, thanks to Alliance Alert. And here is a recording of Biebl's version of the hymn via YouTube.

California Church Keeps Exempt Status; Questions IRS Conclusions

All Saints Episcopal Church in Pasadena, California earlier this month received a letter from the Internal Revenue Service informing it that its non-profit status would be continued. The letter (full text) said, however, that a 2004 sermon constituted improper interference in a Presidential campaign. The letter said that this appears to be a one-time occurrence and that the Church now has policies in place to prevent future problems. According to Episcopal News Service yesterday, parish leadership has asked the Treasury Inspector General for Tax Administration to furnish an explanation of why the sermon was found to be a problem and also to look into allegations that IRS officials may have breached the Church's privacy rights in conversations with high Justice Department officials. The Church is concerned that the IRS exam may have been triggered by partisan political considerations. (See prior related posting.)

A Flood of New Scholarly Publications In Law and Religion

From SSRN:

• Ali L. Khan, Advocacy Under Islam and Common Law, (August 2007).
  
• John Witte, Go Ye, Therefore, and Make Disciples of All Nations': Proselytism in the New World Order, (2007).


• John Witte, Rights, Resistance, and Revolution: The Protestant Foundations of Rights and Revolution, (2007).


• Edward A. Hartnett, Catholic Judges and Cooperation in Sin, (University of St. Thomas Law Journal, Vol. 4, No. 2, 2006).


• Charles J. Reid, Children and the Right to Life in the Canon Law and the Magisterium of the Catholic Church: 1878 to the Present, BEST LOVE OF THE CHILD, Timothy Jackson, (ed.), 2008.


• Charles J. Reid, The Rights of Children in Medieval Canon Law, (U. of St. Thomas Legal Studies Research Paper No. 07-34, 2007).


• Marie Ashe, Beyond Nomos and Narrative: Unconverted Antinomianism in the Work of Susan Howe, (Yale Journal of Law & Feminism, Vol. 18, No. 1, 2006).


• Peter Radan, From Dayton to Dover: The Legacy of the Scopes Trial, (Macquarie Law Working Paper No. 2007-6, September, 2007).

From SmartCILP:

• Mark Strasser, Establishing the Pledge: On Coercion, Endorsement, and the Marsh Wild Card, 40 Indiana Law Review 529-583 (2007).


• Stephen E. Young & Alison Shea, Separating State From Church: A Research Guide to the Law of the Vatican City State, 99 Law Library Journal 589-610 (2007).


• Program on Law and State Government Fellowship Symposium: From the State House to the Schoolhouse: Religious Expression in the Public Sphere. Introduction by Cynthia A. Baker; articles by Kevin C. McDowell and Luke Meier. 40 Indiana Law Review 491-528 (2007).

New book:

• Alan Dershowitz, Blasphemy: How the Religious Right Is Hijacking Our Declaration of Independence, (John Wiley and Sons, June 2007), reviewed in the Jewish Standard.

Indianapolis Airport Foot Washing Sink Creates Religious Controversy

In Indianapolis, Indiana, International Airport officials are proposing to install a foot-washing sink that would be used primarily by Muslims before prayer. Yesterday The Indy Channel reported that Rev. Jerry Hillenburg of Indianapolis' Hope Baptist Church has raised a biblical and constitutional challenge to the proposal. He argues that the proposal involves use of tax funds to promote one religion. Airport officials say the issue is one of safety and health. Over 100 Muslim taxi drivers currently use a traditional sink at the airport, creating problems by leaving the floor wet.

Russian Schools Increasingly Teaching Religion

Yesterday's New York Times reports on the increasing introduction of religion into the curriculum of schools in Russia. Recently 10 prominent Russian scientists wrote President Vladimir Putin protesting the "growing clericalization" of Russian society. Proponents, however, say that children need to know about Russian Orthodoxy in order to appreciate Russia's arts, literature, heritage and history.

Recent Prisoner Free Exercise Cases

Randolph v. City of New York Department of Corrections, 2007 U.S. Dist. LEXIS 68104 (SDNY, Sept. 7, 2007), involves claims regarding the availability of Halal food for prisoners at New York's Rikers Island correctional facility. A federal magistrate judge recommended dismissal of a claim that the prison commissary violated plaintiff's free exercise rights by selling products containing pork without identify those contents to prisoners. However he recommended that plaintiff be allowed to proceed with claims for an injunction and declaratory relief regarding the prison's alleged practice of failing to follow proper practices in serving Halal meals, such as washing Halal and non-Halal trays together.

In Travillion v. Leon, 2007 U.S. App. LEXIS 22203 (3rd Cir., Sept. 14, 2007), the U.S. 3rd Circuit Court of Appeals held that a Protestant plaintiff's Establishment Clause and Equal Protection rights were not violated when a state jail served all prisoners vegetarian meals during Lent, even though their religious beliefs did not require them to abstain from meat.

In Portune v. Ornoski, 2007 U.S. Dist. LEXIS 68534 (ND CA, Sept. 6, 2007), a California federal district court permitted a prisoner to proceed with a habeas corpus action alleging in part that his right to the free exercise of religion was infringed when his parole was denied because he refused to attend a religious-based Narcotics Anonymous program.

In Saif'ullah v. Sisto, 2007 U.S. Dist. LEXIS 68703 (ED CA, Sept. 5, 2007), a California federal district court permitted to proceed with their First Amendment and RLUIPA claims that they were offered only a vegetarian diet instead of a diet that included Halal meat. However the court found that they failed to state a claim when they alleged that they were prevented from offering their evening prayers in the prison's day room, and instead had to pray individually in their prison dorms.

In Dupree v. Laster, 2007 U.S. Dist. LEXIS 69288 (SD IL, Sept. 19, 2007), a federal district court adopted a Magistrate Judge's Report and Recommendation, rejecting prison officials' arguments that their actions dealing with Plaintiff's behavior during religious services while incarcerated were legitimate, and that RLUIPA does not authorize individual capacity claims for monetary damages

In Jackson v. Epps, 2007 U.S. Dist. LEXIS 69017 (ND MS, Sept. 18, 2007), a Mississippi federal district court dismissed a prisoner's complaint that he was not permitted to attend Muslim religious services, finding that plaintiff had not filled out the required prison form to designate his religion as Islam.

Wisconsin Modifies Murder Remembrance Day Program To Avoid Church-State Issue

September 25 is the first National Day of Remembrance for Murder Victims, sponsored by the National Center for Victims of Crime and the National Organization of Parents of Murdered Children. (Kansas City Star Crime Scene blog.) Ceremonies are being planned around the country. In Wisconsin, the program planned by the state's Department of Justice was modified to eliminate a hymn and a closing prayer, after objections from the Freedom From Religion Foundation.

Of concern to FFRF were the lyrics to This Too Shall Pass which arguably suggest that the murders being commemorated were "part of a deity's plan". FFRF argued that: "Grieving and vulnerable families should not be proselytized by state government or be told how or what they are expected to believe," nor should the state "be selecting which minister, which denomination or which religion should confer blessings...." The Capital Times reported yesterday that Department of Justice spokesman Kevin St. John said: "Rather than create the unintentional appearance that the state was endorsing religion or a particular creed, the department amended the program to exclude those parts."

Two Courts Reject Free Exercise Defenses To Liability For Clergy Sexual Abuse

Two recent cases have rejected First Amendment defenses by religious organizations to claims against them growing our of clergy sexual abuse charges. In Mary Doe SD v. Salvation Army, 2007 U.S. Dist. LEXIS 69728 (ED MO, Sept. 20, 2007), plaintiff sued the Salvation Army for sexual abuse by one of its Captains who sexually abused her when she was a teenage volunteer camp counsellor at a Salvation Army summer day camp. The Salvation Army raised First Amendment defenses to claims that it negligently failed to protect plaintiff and to breach of fiduciary duty claims. A Missouri federal district court rejected these, saying: "Certainly ... Defendant does not contend that protecting children from a child abuser, investigating child abusers, or supervising employees violate any doctrine or practice of the Salvation Army." The court also rejected Establishment Clause defenses.

In Young v. Gelineau, (RI Super., Sept. 20, 2007), a Rhode Island trial court rejected Free Exercise defenses raised by the Catholic hierarchy to claims against it growing out of plaintiff's sexual molestation by a priest. Christopher Young claimed that the Church is liable for permitting Priest John Petrocelli to have contact with him and other minors after the Church knew that Petrocelli was a child molester. The court rejected the Church's First Amendment defenses, holding that the court's inquiry into the claims "will merely constitute the application of a neutral law and will not impose upon or significantly restrict the Hierarchy Defendants’ religious beliefs or practices." The court went on to reject the argument that since hiring, retention and supervision of a priest is based on Canon law, the suit should be dismissed under the Church Autonomy doctrine.

Bureau of Prison Chapel Library Lists Published; Project Is Widely Criticized

The New York Times reported yesterday that the federal Bureau of Prisons is under pressure from all sides to change its policy of restricting the books that can be in prison chapel libraries. (See prior postings 1, 2, 3, 4.) The Republican Study Committee, a caucus of conservative House of Representatives members, wrote Bureau’s director Harley G. Lappin on Wednesday, saying, "We must ensure that in America the federal government is not the undue arbiter of what may or may not be read by our citizens." (Full text of letter.) However the Bureau of Prisons said it is not reconsidering its decision that stemmed from a 2004 Justice Department Inspector General's report warning that radical books that incite violence and hate may be on chapel library shelves.

Interestingly, along with this article, the Times has posted the list of acceptable books for each of 19 different religious groups that the Bureau of Prisons has placed on its Standardized Chapel Library Project lists. The Bureau took this approach after initial attempts to review every book in chapel libraries became unmanageable. Examination of the book lists is fascinating. The lists contain many audio-visual items as well as books. For some religious groups, the number of permitted items is well over 300, while other lists are much shorter. A list for "Other Religions" for example, contains only two books-- both on Christian Science. The Yoruba list has 76 items, while Messianic (i.e. Messianic Judaism) gets 60. The Catholic and Protestant lists are among the longest. The Jewish list is somewhat shorter with 134 items. Separate lists are furnished for Islam and Nation of Islam.

The Bureau told representatives of Christian and Jewish prison chaplains that a book could be restored to the chapel library if a prisoner requested it and a chaplain reviewed the book and sent a certification to the Bureau in Washington for review. Rabbi Aaron Lipskar, executive director of the Aleph Institute, said it is unrealistic to expect chaplains to have time to review books in this way. [Thanks to Melissa Rogers for the lead.]

Court Says Halloween Decorations Are Secular Symbols

Rivera-Alicea v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905 (D PR, Sept. 20, 2007), involves claims by a secretary in Puerto Rico's Department of Justice that she was retaliated against for complaining that "pagan" office Halloween decorations offended her Pentecostal Christian religious beliefs. In rejecting plaintiff's Establishment Clause claim, the Puerto Rico federal district court held:

Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols. Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.

The court also rejected plaintiff's Free Exercise claim and her claim under various provisions of Puerto Rican law. However the court permitted plaintiff to move ahead with her claim of retaliation under Title VII of the 1964 Civil Rights Act based on her allegations that various actions were taken against her because she filed a complaint with the EEOC over the Halloween decorations.

3rd Circuit Rejects Free Exercise Challenge To Giving Minor "Morning After" Pill

On Friday, the U.S. Third Circuit Court of Appeals rejected free exercise and parental rights claims against the City of Philadelphia's Health Department in a suit alleging that a health center acted unconstitutionally when it furnished a 16-year old girl emergency contraception without first notifying her parents or encouraging her to consult with them. In Anspach v. City of Philadelphia, (3d Cir., Sept. 21, 2007), the court rejected both parental rights and First Amendment claims. The suit, brought by both the parents and the girl, argued that the health center misled Melissa Anspach when a staffer told her that the morning-after pill would prevent her from getting pregnant, without informing her that it could prevent the implantation of a fertilized egg. Melissa's religious beliefs saw this as abortion.

The court rejected Melissa's free exercise claim, finding that she was not coerced by the government into taking the pills and that she does not allege she ever informed the clinic staff about her religious beliefs. It also rejected a free exercise claim by Melissa's parents, holding that the Constitution does not require the government to ensure that children abide by their parents' religious beliefs. Much of the court's 47-page opinion focuses on-- and rejects-- substantive due process claims that parental rights were infringed. The Baltimore Sun's news blog reported on the case on Friday.

Pennsylvaina Suit Claims Religious Discrimination In Marriage License Law

Represented by the ACLU, a Pennsylvania couple has filed a religious discrimination suit against the Allegheny County Register of Wills who refused to issue them a marriage license that would allow them to marry without a third party officiating. Yesterday's Pittsburgh Tribune-Review and today's Wilkes Barre Times Leader report the couple was told that only members of the Quaker and Baha'i faiths-- traditional religions that have no clergy-- are permitted to self-officiate. Pennsylvania law (23 Pa. Consol. Laws Sec. 1503(b)) provides that a marriage ceremony can be conducted by members of a religion without clergy "according to the rules and customs" of the religious group. Mary Jo Knelly and David Huggins-Daines, who want to have a ceremony similar to that of the Quakers, but secular in content, say this amounts to preferential treatment of one religion over another. However Register of Wills Solicitor Timothy E. Finnerty wrote them that under Pennsylvania law, "There is no provision for the individuals to officiate at their own marriage." (See prior related posting.)

UPDATE: On Thursday, federal judge Joy Flowers Conti granted a temporary restraining order, requiring Allegheny County to issue a marriage license to Knelly and Huggins-Daines. While the court did not make a final ruling on how Pennsylvania's law should be interpreted, Allegheny County said that in the future it would grant self-uniting marriage licenses without regard to religion. (Pittsburgh Post-Gazette, Sept. 28).

House Passes Bill With Funds Earmarked For Group Promoting Creationism

Yesterday's New Orleans Times-Picayune reports that the House has passed an sent to the Senate an appropriations bill containing a $100,000 earmark for a group promoting creationism to use "to develop a plan to promote better science education." Louisiana Senator David Vitter placed the earmark in the bill to benefit nonprofit Louisiana Family Forum, a group that has taken the lead in the state in promoting "origins science". The report authorized by the earmark will include an evaluation of a 2006 policy change by the Ouachita Parish School Board that permits teachers to introduce alternative theories to evolution in science classes. Two of Vitter's paid 2004 campaign staff are also employees of the Family Forum.

Hospital Chaplain Fired for Objecting To Gideons' Bible Distributions

Jews on First yesterday reported on the forced resignation of hospital chaplain Rev. Kay Myers by Salisbury, Maryland's Peninsula Regional Medical Center after she raised objections to Gideons going room-to-room delivering Christian Bibles to hospital patients. The Bibles contained only the New Testament and the book of Psalms. Not only was Myers, a Presbyterian minister, concerned about keeping the hospital's chaplaincy non-sectarian, but she also feared that giving the Gideons access violated patient privacy under HIPAA. In addition, the hospital's infection control department was concerned that the Bibles might harbor resistant organisms. Hospital CEO Alan Newberry told Myers that as Director of Pastoral Care, she should be taking the lead in placing Bibles in patient rooms.

Israel's Yom Kippur-Based Daylight Savings Time Shows Religious-Secular Split

Today's Chicago Tribune reports that in Israel, decisions about the date on which daylight savings time ends reflects the broader debate over the role of religion in public life. Two years ago, in a compromise bill, Parliament set the end of daylight savings time as the Sunday before Yom Kippur. The move was taken so that sunset-- the time at which observant Jews can break their Yom Kippur fast-- will arrive an hour earlier. Yom Kippur begins this evening, so daylight savings time has ended in Israel-- well ahead of the time that it ends in Europe and the United States. Secular Jews in Israel, however, are complaining because they are deprived of the extra hour of light after work. They say this is an example of how the interests of Israel's religious minority are interfering with the lifestyle of the majority of the population who are secular Israeli Jews.

House Passes Vietnam Human Rights Act

On Tuesday (by a vote of 414-3) the U.S. House of Representatives passed H.R. 3096, the Vietnam Human Rights Act. Among other things, it prohibits any increase in nonhumanitarian foreign aid to Vietnam until the President certifies that various human rights goals have been met. Among these are "substantial progress toward respecting the right to freedom of religion, including the right to participate in religious activities and institutions without interference by or involvement of the Government" and "substantial progress toward releasing all political and religious prisoners". The bill, which now goes to the Senate, also calls for the State Department to submit an annual report on Vietnam's progress in various areas of concern. Vietnam's News Service today published an opinion piece criticizing passage of the bill.

Authorities Prosecuting Promoters of "Corporations Sole" Scams

Today's Arizona Republic reports on efforts of federal and state law enforcement to prosecute promoters of "corporations sole" scams-- the use by individuals for tax evasion purposes of entities intended for church assets. A corporation sole, permitted under the laws of 17 states, is legitimately created by an individual church leader in order to provide an entity to hold church property and funds. A corporation sole does not need to file an income tax return. Promoters have bilked many individuals who have no connection to a church by charging them high fees to set up a corporation sole for their personal assets. The promoters incorrectly tell the individuals that this excuses them from paying income taxes.

China Appoints Vatican-Approved Bishop

In another step toward reconciliation with the Vatican, China's state-controlled Catholic church today appointed as bishop of Beijing a cleric who has the approval of the Vatican. The Associated Press reports that Joseph Li Shan, in taking the traditional oath to the Church, also added a promise to "lead all the priests seminarians and nuns of this diocese in adhering to the nation's constitution, maintaining national unification and social stability." (See prior related posting.)

Controversy Over Funding Denial For Christian Concert At University of Arizona

A decision last week by the Student Senate at the University of Arizona has created controversy. The organization refused to fund a Christian concert, already scheduled by Priority Campus Ministries, a student group. The concert, "Overflow", had been funded for the last seven years, but a recent change in the bylaws of the Associated Students of the University of Arizona was applied to deny funding this year. The bylaws now exclude funding for events that exclude some students, involve proselytizing and worship, are expressly political, or are merely for entertainment or commercial benefit. The concert went on with funding from local churches. An editorial in yesterday's Arizona Daily Wildcat reviews the controversy.

Qatar Starting New Moderate Islamic Satellite Channel

Gulf News reported yesterday that Qatar is developing a new Islamic satellite television channel designed to counter the growing number of channels in the Arab world that are promoting Sunni- Shiite conflict. The Organization of the Islamic Countries has approved the project. The new channel will focus on Islam's traditions of unity and tolerance.