New Study on American Piety

The Baylor Institute for Studies of Religion has just released American Piety in the 21st Century: Selected Findings From the Baylor Religion Survey (Sept. 2006). The Institute describes the study, in part, as follows: "It plumbs all facets of American religion and spirituality in depth − nearly 400 items cover such matters as religious beliefs and practices, including religious consumerism, as well as nonstandard beliefs (astrology, "Bigfoot," alien visitors, etc.) and practices (meditation, New Age therapies, etc)." Wall of Separation blog has a fuller description of the study.

Recent Prisoner Free Exercise Cases

In Kanda v. Melching-Rianda, 2006 U.S. Dist. LEXIS 65817 (ED CA, Sept. 1, 2006), a California federal Magistrate Judge held that a prisoner could file an amended complaint properly challenging denial of his request for a single cell so he would not be housed with someone who violated his religious belief that he could not have beef or beef by-products in his cell. He could also file an amended complaint alleging that he was placed in administrative segregation for invoking his religious beliefs.

In Scott v. Beard, 2006 U.S. Dist. LEXIS 65673 (MD PA, Sept. 14, 2006), a Pennsylvania federal district court held that defendants had qualified immunity in a prisoner's claim for damages growing out of a denial of his request on religious grounds for an exemption from prison requirements about hair length. The prisoner was a member of the Assemblies of Yahweh and had taken a Nazarite vow. The court found that the prisoner's RLUIPA claim for an injunction was moot because he had now been released from prison and the prison system had adopted revised policies making it easier to obtain an exemption from grooming rules.

In Northrop v. Summersett, 2006 U.S. Dist. LEXIS 65136 (ND CA, Aug. 30, 2006), a California federal district court dismissed on res judicata grounds a prisoner's claim that the removal of pork from menus in some California prisons violates the Establishment Clause, as well as his rights under the Free Exercise clause, RLUIPA, the equal protection clause and the California Constitution.

In Price v. Caruso, 2006 U.S. Dist. LEXIS 64322 (ED MI, Sept. 8, 2006), a Michigan federal district court refused to grant summary judgment to defendants in a prisoner's suit claiming that policies prohibiting travel between prison complexes interferred with Jewish prisoners' being able to adequately have Sabbath services and a Passover Seder.

In Smith v. Crose, 2006 U.S. Dist. LEXIS 64250 (D NJ, Sept. 7, 2006), a New Jersey federal district court permitted an inmate to move ahead with a claim that his free exercise rights were violated when he was prevented from attending Ju'ma services because he had an injured ankle. A number of plaintiff's other claims were dismissed.

In Skenandore v. Endicott, 2006 U.S. Dist. LEXIS 64175 (ED WI, Sept. 6, 2006), a Wisconsin federal district court rejected a RLUIPA challenge by an inmate who is a member of the Oneida Indian tribe to Wisconsin policies on the practice of religion in correctional institutions. Plaintiff complained that he was not permitted to possess a prayer pipe, smoke tobacco or smudge herbs; that he was prevented from forming a Native American Cultural Activity Group; that he was not given time com complete sweat lodge ceremonies; that he is being denied religious feasts and ceremonial foods; that he may not possess traditional regalia; and that non-Native American inmates are allowed to participate in Native American religious activities.

In Dixon v. Wodruff-Fibley, 2006 U.S. Dist. LEXIS 65911 (SD IN, Sept. 14, 2006), the court rejected a First Amendment claim by an inmate who was refused permission to pray outside of his cell. He claimed that his prayers are considered invalid if offered in the midst of pictures or drawings of living objects, such as his cellmate has in his cell.

New Publications In Law and Religion

From SmartCILP:
William E. Nelson, The Utopian Legal Order of the Massachusetts Bay Colony, 1630-1686, 47 American Journal of Legal History 183-230 (2005).

From SSRN:
Steven Douglas Smith, The Jurisdictional Establishment Clause: A Reappraisal (forthcoming Notre Dame Law Review).

From Bepress:
Steven H. Shiffrin, Liberalism and Religion (August 22, 2006), ExpressO Preprint Series. Working Paper 1601.

New Book:
Ray Suarez, The Holy Vote: The Politics of Faith in America (Harper Collins, August 29, 2006)-- reviewed in Sunday's Washington Post.

Religious Dress Ban In France As New School Year Begins

As the school year began in France, it appears that high profile controversies over the country's ban on wearing conspicuous religious symbols and dress in public schools have largely disappeared. The only open controversy involves four Sikh students who are being kept isolated in rooms apart from their classmates because they refuse to remove their turbans and and switch to an under-turban keski or patka. (Sikh Sangat News.) However, yesterday's Khaleej Times says that the ban has only been partially successful. It has helped some Muslim girls who came to school wearing headscarfs only because of pressure from their family or community. But other Muslim young women have gone to other countries to study or signed up for distance learning courses in order to avoid the ban. Meanwhile, in a tape released by Al Queida on the anniversary of the 9/11, Ayman Al Zawahiri criticized "those in France who prevent Muslims from covering their heads in schools".

Competing Bills On Military Chaplain Prayer In Congress

On Friday, WorldNet Daily carried a discussion of the competing provisions on prayer by military chaplains that appear in the House and Senate versions of this year's Defense Authorization Bill. The House version would assure chaplains that they could pray according to the dictates of their own conscience, except for narrow limitations compelled by military necessity. The Senate version, on the other hand, would require chaplains, outside of religious services or ceremonies for their own faith, "to be sensitive to and respect the diversity of faiths represented" in their audience." Navy Chaplain Gordon Klingenschmitt, the recently court-martialed proponent of sectarian prayer in the military, strongly opposes the Senate version. He says it would empower the Pentagon to establish "pluralism" as a new form of religion. Klingenschmitt favors yet a third proposal that would merely amend current 10 USC 6031 to broadly permit chaplains to pray according to the manner and forms of their religious denominations.

2nd Circuit Interprets 1998 Charitable Donation Protection Act

While a decision earlier this month by a Bankruptcy court judge on charitable donations in bankruptcy proceedings garnered a good deal of attention, an equally important case on the issue decided several weeks ago by the Second circuit seems to have gone largely unnoticed. In Universal Church v. Geltzer, (2nd Cir., July 26, 2006), the Second Circuit Court of Appeals held that treating some contributions to churches as fraudulent conveyances in bankruptcy does not violate the Free Exercise of Establishment clauses. It went on to interpret various provisions of the Religious Liberty and Charitable Donation Protection Act of 1998. It held that the statute's shield for charitable donations of up to 15% of a debtor's annual income applies to aggregate annual transfers, not to individual donations. The court held that in this case, the Church had waived its claim that it should be able to retain amounts donated to it under the 15% limit. Finally it held that on remand the church could raise the statutory defense that donations in excess of 15% "were consistent with the practices of the debtor in making charitable contributions."

Most Muslim Leaders Say Pope's New Statement Not A Sufficient Apology

As angry reaction spread across the Muslim world to an address last week by Pope Benedict XVI (see prior posting), the Pope today spoke on the issue (full text). He said:

I am deeply sorry for the reactions in some countries to a few passages of my address at the University of Regensburg, which were considered offensive to the sensibility of Muslims. These in fact were a quotation from a medieval text, which do not in any way express my personal thought.

Yesterday, the Cardinal Secretary of State published a statement in this regard in which he explained the true meaning of my words. I hope that this serves to appease hearts and to clarify the true meaning of my address, which in its totality was and is an invitation to frank and sincere dialogue, with great mutual respect.

The full text of Cardinal Secretary of State Tarcisio Bertone's statement, to which the Pope refers, is available as part of NPR's coverage of the story. Bertone assumed his office as Secretary of State only two days ago.

Before the Pope spoke today, there had even been calls by a Somali cleric for Muslims "to hunt down the Pope for his barbaric statements as you have pursued Salman Rushdie, the enemy of Allah who offended our religion." (Zimgreats. com). In a possibly related incident, an Italian nun at a children's hospital in Mogadishu was murdered on Sunday. (New York Times.)

After the Pope's statement on Sunday, Muslim clergy in Syria expressed satisfaction. (Deutsche Presse Agentur). However most Muslim leaders around the world say that the Pope's Sunday address did not go far enough in apologizing. (CNN).

Tennessee Ten Commandments Case Moves To Trial

In ACLU of Tennessee v. Rutherford County, 2006 U.S. Dist. LEXIS 65882 (MD TN, Sept. 14, 2006), a Tennessee federal district court lifted a stay on proceedings, and agreed to move to trial, in a Ten Commandments case. The court had imposed the stay in 2002 pending appellate review of a similar case from McCreary County, Kentucky. The McCreary County case was ultimately decided by the U.S. Supreme Court in decisions that struck down that county's Foundations of American Law and Government Display. Along with imposing a stay of proceedings in the Rutherford County case, the court in 2002 issued a preliminary injunction against Rutherford County's courthouse display of documents (including the Ten Commandments), finding that the county had an impermissible religious purpose in creating it. In compliance with the order, the display was removed. In its current decision the court has refused to automatically turn its 2002 preliminary injunction into a permanent injunction. It said:

[E]ven if the same public body previously attempted to post the Ten Commandments in an unconstitutional manner, it may be able to post the Ten Commandments in the future in a constitutionally permissible manner. While recent cases provide a "road map" to follow in permissibly displaying documents with religious content, these Rutherford County Defendants must show that they have purged themselves of their original sectarian purpose relating to the posting of the Ten Commandments.

Court Says Privilege Did Not Excuse Failure To Report Sex Abuse

R.K. v. Corporation of the President of the Church of Jesus Christ of Latter Day Saints, 2006 U.S. Dist. LEXIS 65772 (WD WA, Sept. 14, 2006), involves a suit in a Washington federal district court against the Mormon church for negligence in failing to report sexual abuse of a 13-year old boy by his scout leader, as required by state law. The suit was brought by an individual who was abused the following year by the same scout leader. A Bishop learned of the first incident of abuse during a conversation with the father of the abused child. The Church claims that the priest-penitent privilege, as codified in Washington law, precluded reporting, but the court found that the Bishop could have reported the abuse to law enforcement officials in a way that would not have disclosed any confidential communications.

Indian Court Bans Priests' Helpers From Temple

A court in Calcutta, India has banned assistants to Hindu priests-- known as touts or pandaas-- from entry into the famous Kalighat temple . Yesterday, BBC News reported that the pandaas have been accused of extorting money from worshipers who they escort into the temple and help perform the puja (worship).

Newdow Seeks Libel Judgment Against Critic

On Monday, Michael Newdow, who has gained fame through his law suits challenging the constitutionality of the phrase "under God" in the Pledge of Allegiance, will be appearing in a state court of appeals in California to defend his right to move ahead with a libel suit against Rev. Austin Miles, an interdenominational chaplain. Yesterday’s issue of The Recorder reports on Newdow’s claim that Miles defamed him in two internet postings that accused Newdow of committing perjury before the 9th Circuit Court of Appeals in the "Pledge of Allegiance" case. Miles said that Newdow told the court that his daughter had suffered emotional distress by being forced to recite the pledge. Newdow says he only told the court that children like his daughter are unduly influenced when schools lead them in a ritual proclaiming the existence of God. Newdow says that the chaplain acted with actual malice in making the false statements—a standard that must be met when a public figure like Newdow sues for libel. Newdow is also seeking reinstatement of a default judgment against Miles that was originally issued and then set aside by the trial court.

California Church Location Approved Under Pressure of RLUIPA

Yesterday’s San Diego Union-Tribune reports that in Rancho Bernardo, California, city planners next week will reluctantly recommend that Grace Church be permitted to hold evening and Sunday services in an 18,000 square foot leased space in Bernardo Industrial Park. Planners would rather preserve the space in the industrial park for more lucrative industrial uses that generate jobs and taxes. However, officials say that the Religious Land Use and Institutionalized Persons Act requires them to approve the church’s requested 10-year conditional use permit, especially because a few other churches have been granted permits to locate in the same industrial park. Grace Church's pastor, Eric Turbedsky, says the rented space is a small warehouse that has been unoccupied for six years, and that there is no other land in Rancho Bernardo left that is zoned for churches.

State Department Issues International Religious Freedom Report

Yesterday, the U.S. State Department released its eighth annual International Religious Freedom Report. (Press Release, Full Text of Report, Secretary RiceÂ’s Statement) The report examines the extent to which religious freedom is protected in 197 different countries. The report is required by the International Religious Freedom Act of 1998, which also requires the State Department to designate as "countries of particular concern"(CPCs) those nations that are most egregious in violating, or tolerating violations of, religious freedom. However, Ambassador At Large for International Religious Freedom, John V. Hanford III, said that while the report is being released, the State Department has not yet finalized its list of CPCs for 2006. It will do that in "several weeks". Immediately following the State Department release, the U.S. Commission on International Religious Freedom issued a statement criticizing thereport's drafters for removing "longstanding and widely quoted language ... that freedom of religion does not exist in Saudi Arabia".

Kansas AG's Campaign Tactics Toward Churches Revealed

In Kansas, a memo from the campaign of Attorney General Phill Kline on how he plans to appeal to religious voters has been leaked to the media, according to the Associated Press yesterday. In the memo, Kline tells his re-election campaign to hold political receptions near churches after their services, and to try to get pastor to mention the receptions during services. He also wants pastors to bring a few "money people" to each reception. In a debate with his Democratic challenger Paul Morrison yesterday, Kline defended his outreach to churches. He said, "They didn't need to break into my campaign software program and computer and hack this information to know about it - I have been speaking in churches for more than 20 years now." Challenged about church-state separation issues, he said that the principle is designed to prevent government imposing a religion, and not to preventing people of faith from expressing their opinions or holding public office.

UPDATE: Here is the full text of the Attorney General's memo to his campaign staff. For more on this see Jews On First blog.

Still No Agreement Over Women's Protection Bill In Pakistan

The New York Times reported yesterday that the Pakistani government has encountered continued opposition from some Muslim clerics over its attempt to enact the Women's Protection Bill that would amend the Hudood Ordinance of 1979. A vote planned for Wednesday was postponed. Under the government's original proposal, rape cases would be moved from Islamic courts to civil courts, and accusers in adultery cases would have to appear before a court instead of just filing complaints with the police. It would also raise the age of consent to 16, and allow women as well as men to be one of the four required witnesses to prove adultery. Under a compromise agreement this week, the punishment would remain the same for women for rape and adultery, though a judge could under some circumstances elect to use the country's civil law instead of Sharia. Another proposal would criminalize "lewdness", including consensual sexual relations. Some supporters of the original bill say these changes are unacceptable. (See prior posting.)

Religious Amusement Parks and Tax Breaks

An article published in McClatchy Newspapers today explores the issue of property tax exemptions for religious-themed amusement parks. Florida has passed a special property tax exemption for theme parks like Holy Land. (HB 7183). Some tax officials argue that these operations should be taxed like other amusement parks, and not like religious organizations.

Pope's Remarks Anger Muslim Countries

Anger spread across the Muslim world today at remarks made last Tuesday by Pope Benedict XVI in an address to scientists at the University of Regensburg, where he was a professor and vice rector from 1969 to 1971. (Bernama; Investors Business Daily.) The Pope titled his address "Faith, Reason and the University" (full text). In his remarks, the Pope decried the use of force, rather than reason, to convert individuals to a particular religious belief. In making his point, the Pope referred to statements made in 1391 by Byzantine emperor Manuel II Paleologus, who, in debating an "educated Persian" on the subject of Islam and Christianity, said: "Show me just what Mohammed brought that was new, and there you will find things only evil and inhuman, such as his command to spread by the sword the faith he preached."

Pakistan's Parliament unanimously passed a resolution condemning the Pope's remarks, and in Turkey a leader in the Prime Minister's party said the Pope would go down in history with leaders like Hitler and Mussolini for his remarks. (The Independent.) The Egyptian-based Muslim Brotherhood said Islamic countries should consider breaking diplomatic relations with the Vatican unless the remarks are withdrawn. (ITV.) In response, the Vatican issued a statement, saying that the Pope wishes to "cultivate an attitude of respect and dialogue toward other religions and cultures, obviously toward Islam too.... What is at the Pope's heart is a clear and radical refusal of the religious motivation of violence."

TRO Denied To Funeral Protesters

In St. Louis yesterday, a federal judge refused to issue a temporary restraining order to prevent enforcement of Missouri's law against demonstrating at funerals. The St. Louis Post Dispatch reports on the decision. The law is being challenged by Shirley Phelps-Roper, a member of the Westboro Baptist Church. Her group has gained notoriety for picketing funerals of veterans of the Iraq and Afghanistan wars, holding signs claiming that soldiers' deaths are punishment by God of the United States for sins such as tolerating homosexuality. U.S. District Judge Stephen N. Limbaugh said that church members would not be irreparably harmed by not being able to protest at Sunday's funeral of Jeremy R. Shank, who was killed by small arms fire in Balad. Another lawsuit has already been filed challenging Missouri's law. (See prior posting.)

Native Americans Argue Snowbowl Appeal In 9th Circuit

Yesterday the U.S. Ninth Circuit Court of Appeals heard arguments in The Navajo Nation v. U.S. Forest Service, a challenge by various Southwestern Indian tribes to the expansion of an Arizona ski resort. Associated Press reports on the arguments over what would be the country's first ski resort to use entirely reclaimed sewage water to make snow. Scott Canty, attorney for the Hopi Tribe, argued that man-made snow would desecrate the mountain that is sacred to 13 Southwestern tribes. Jack Trope, attorney for the Hualapai tribe, said that the artificial snow could melt into a nearby spring used by the tribe for healing ceremonies, making the waters unusable for spiritual purposes. The lower court had rejected the tribes' First Amendment and RFRA claims. (See prior posting.)

Michigan House Passes Bills To Permit Rejection Of Gay Adoptions By Agencies

Pride Source reports that last week, Michigan's House of Representatives passed two companion bills that would allow faith-based adoption agencies to refuse to place children with same-sex parents if they have "written religious moral convictions or policies" against homosexuality. HB 5908 and HB 5909 also prohibit the state from considering such policies adversely in its dealings with faith-based agencies. The votes on the bills were 69-37.