Court Says Chabad Can Pursue Russian Government For Manuscripts

Yesterday a federal district court in Washington, D.C. gave a significant-- but not total-- victory to a Chabad organization in its efforts to get back collections of its Jewish religious books and manuscripts that fell into the hands of the Soviet Union during the 1917 Bolshevik Revolution and then were the subject of extensive legal proceedings in the Soviet Union. In Agudas Chasidei Chabad of United States v. Russian Federation, (DDC, Dec. 4, 2006), the court held that the Foreign Sovereign Immunities Act is not a bar to Chabad's suit to recover the so-called "Archive"-- 25,000 pages of Chabad Rebbes' handwritten teachings, correspondence, and other records. The expropriation exception to FSIA applies because the Archive was taken in violation of international law by the Nazis in Poland during World War II, and then seized by the Soviet Army from the Nazis in 1945, again in violation of international law.

However the court did dismiss Chabad's attempt to also recover its "Library" -- a collection of 12,000 books and 382 manuscripts that date back to 1772. Both FSIA and the act of state doctrine preclude the court from having jurisdiction over this claim because taking of the Library, which took place in the 1920s, did not violate international law.

The New York Sun and the Associated Press cover the decision. The AP report says that Chabad is delighted with the decision. Its main concern was the Archive. The Library apparently is being preserved in Russia by the Russian government under an agreement it made with the U.S. in 1993, though Chabad charges that Russia is not complying with its obligations under the agreement. Bloomberg yesterday, however, reported that Chabad is considering whether to appeal this part of the court's decision

City Operation Of Music From Church Steeple Challenged

In Jewett City, Connecticut, the state chapter of American Atheists is complaining about a loud speaker and CD player that was installed by the borough in the steeple of a Baptist Church located on the town's main street. The New London (CT) Day reported on the controversy last week.

Ten years ago, the town spent some unused grant monies for the equipment that is used to play music each hour, and to broadcast church bells on each quarter-hour. The town, and not the church, is responsible for the equipment and the choice of music. Most of the music played in non-religious. However, at the request of the borough treasurer, the nine o'clock selection each morning is Onward Christian Soldiers. And in the winter, religious Christmas songs are included in the repetoire. Some residents are concerned that the volume of the music is too loud. But American Atheists is concerned with the church-state issues in the town's operation of the equipment. It wants the town to sell the equipment to the church and have the church take control of the music. However the church is not interested.

Russia Sues In French Court Over Church Ownership

Interfax reports today that the Russian government has filed suit in a French court to confirm that the Russian State is the only legitimate owner of the land under the Russian Orthodox St. Nicholas Cathedral in the French city of Nice. In the petition filed on November 13, the Russian government also claims ownership of the church's facilities and property. Sergey Parinov, press secretary of the Russian embassy in France, said the dispute is purely a property dispute and has nothing to do with the relations between the Patriarchates of Moscow and Constantinople.

Church Filings Call Bona Fides Of Ordinations Into Question

Sunday's Arizona Daily Star chronicles a convoluted and unusual legal issue that has surfaced as two factions fight for control of the Universal Life Church Monestary and its assets. Through its website, the Monestary offers instant and free ordination as a minister. It claims to have ordained over 20 million individuals. Now, however, the bona fides of some of those ordinations are in question because the website has been run since August 1 by George Freeman, who is not legally an officer of the church.

The church's true CEO, Daniel Zimmerman, claims control of the church and its website has been improperly taken by Freeman (who once ran a Seattle church known by some as a nightclub where teens could find group sex and drugs). In February, Freeman filed papers with the Arizona Corporation Commission stating that the non-profit corporation's board of directors voted to remove Zimmerman as CEO because he engaged in "fraudulent conduct," conducted himself in a manner unbecoming a board member, and because of a recent arrest. Subsequently the Corporation Commission decided that Freeman's documents were "accepted in error" and they were returned to him. This means that Zimmerman is recognized as CEO as a matter of legal record.

Online requests for ordination after Aug. 1, however, were processed by Freeman. Since he is no longer recognized by the Arizona Corporation Commission as an officer of the church, these ministers may not have been legally ordained. That apparently places the validity of some of the marriages they performed in doubt. Zimmerman says it also places "the baptism of countless babies is at risk", although it is not exactly clear what that means.

Of course, it may be that the heart of the dispute here is the church's real estate, its $129,000 in cash, and the value of sales of ministerial supplies and materials it offers through its website (allegedly worth $15 million). Zimmerman is apparently willing to give up legal control of the church if he gets a retirement package worth several hundred thousand dollars that he says was promised to him.

Michigan Capitol's Spruce Is "Christmas Tree"

In Lansing, Michigan, the state legislature's bipartisan Capitol Committee declared the 61-foot spruce in front of the Capitol to be the "Michigan Christmas Tree". Sunday's Grand Rapids Press reports that the new name replaces the "State Holiday Tree", the name that had been used since 1991. State Attorney General Michael Cox said there was no problem with the change. And Susan Herman, a spokesperson for the Michigan Jewish Conference, agreed saying: "If you're going to have a tree, you might as well call it what it is."

Recent Articles of Interest

From SSRN:

• Perry Dane, Christmas, (November 2006).
  
• Philip Weinberg, O Centro Espirita: The Supreme Court Raises the Spirits of the Free Exercise Clause, (St. John's Legal Studies Research Paper No. 06-0059).

From SmartCILP:

• Niaz A. Shah, Women's Human Rights in the Koran: An Interpretive Approach, 28 Human Rights Quarterly 868-903 (2006).
  
• Varun Soni, Freedom From Subordination: Race, Religion, and the Struggle for Sacrament, 15 Temple Political & Civil Rights Law Review 33-64 (2005).

San Francisco OK In Criticizing Catholic Opposition To Gay Adoptions

Last March, Cardinal William Joseph Levada, head of the Vatican's Congregation for the Doctrine of the Faith, issued a directive to the Archdiocese of San Francisco's social service agencies, instructing them to stop placing children in need of adoption with homosexual households. This led San Francisco's Board of Supervisors to pass a resolution calling for the Cardinal to withdraw his directive. The resolution said that it is "an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great City's existing and established customs and traditions such as the right of same-sex couples to adopt and care for children in need." Upset with that resolution, a Catholic civil rights group sued San Francisco, claiming that the resolution violates the Establishment Clause. The suit asked the court to enjoin the Board of Supervisors from criticizing and attacking religion and religious beliefs. (See prior postings 1, 2.)

On Thursday, in Catholic League for Religious and Civil Rights v. City and County of San Francisco, 2006 U.S. Dist. LEXIS 86698 (ND CA, Nov. 30, 2006), relying in particular on a 2002 Ninth Circuit decision, a California federal district court dismissed the claim against the Board of Supervisors, finding that the Supervisors' Resolution has a secular purpose and effect. It also rejected the claim that the resolution constitutes excessive entanglement, saying that "it is merely the exercise of free speech rights by duly elected office holders."

Teacher Loses Title VII Challenge To Wearing Of ID Badge

Sidelinger v. Harbor Creek School District, 2006 U.S. Dist. LEXIS 86703 (WD PA, Nov. 29, 2006), is a case brought by a Pennsylvania high school chemistry teacher under Title VII of the 1964 Civil Rights Act claiming that his school failed to accommodate his religious beliefs and that it illegally terminated his employment. Teacher David Sidelinger objected to Harbor Creek High School's requirement that all teachers wear a photo identification badge. He claimed that wearing the badge would require him to commit the sin of pride and the sin of hypocrisy. After a bench trial, the court entered judgment for defendants. It found that Sidelinger had failed to establish that his belief was a sincerely held religious one, that he failed to give sufficient notice of his beliefs to the School District, and that he failed to show that he would not have been fired for reasons independent from his religious beliefs.

U.S. Military Chaplain Corps Is Increasingly Diverse

USINFO, published by the U.S. State Department's Bureau of International Information Programs, carried a posting on Friday discussing the increasing religious diversity of the 5,000 clergy in the U.S. military's chaplain corps. This is in part a response to the increasing diversity of the personnel in the military-- active duty soldiers report belonging to 109 different religions. The Defense Department wants to make certain that even small groups of believers have access to a chaplain. This month the first Buddhist chaplain will join the Navy. Chaplains are trained in interdenominationally and provide services not just to individuals of their own denomination, but to all service personnel.

Buddhist Definition of Death Clashes With State's Recognition of Brain Death

Today's Boston Globe reports on a difficult case in Boston's Suffolk Family and Probate Court, pitting a religious definition of death against the state's recognition of brain death as the end of life. Last week, doctors declared 72-year-old Cho Fook Cheng brain dead after he suffered cardiac arrest. They said he should be removed from ventilators and intravenous medications that were keeping his organs functioning. However, his family refused arguing that their religious views as Buddhists were that so long as Cheng's heart was beating, he was still alive. The family went to court and obtained a restraining order preventing Beth Israel Deaconness Medical Center from removing Cheng's life support system. As the hospital prepared to fight the issue in court-- arguing that parts of Cheng's body were deteriorating biologically-- his family reluctantly agreed to end intravenous medication so that his heart would stop beating naturally. Hospital ethicists found little guidance on reconciling Buddhist beliefs with modern technology. Apparently different strands of Buddhism have different beliefs about death. Even though Cheng's heart has now stopped beating-- so everyone agrees he has died-- the parties will be back in court on Tuesday. It is not clear exactly what issues remain to be resolved at that time.

Pakistan's President Signs Women's Protection Bill

On Friday, Pakistan's President Pervez Musharraf signed the controversial Women's Protection Bill that has passed both houses of Parliament. (See prior posting.) This Tuesday, Musharraf is expected to announce the government's future strategy in eliminating laws that unjustly impact women, according to today's Pakistan Daily Times. Meanwhile, the Information Ministry will launch a campaign to inform women about the new law's protections. The Muttahida Majlis-i-Amal (MMA)-- an alliance of Islamic parties-- continues to object to the new law that allows rape cases to be tried in criminal courts instead of Islamic courts, and eliminates the death penalty for persons convicted of having sex outside of marriage. An ANI report quotes MMA's president, Qazi Hussain Ahmed, who charged yesterday that "Musharraf is exploiting the issue of women's rights and wants to see brothels everywhere in the country under the supervision of the police and Army."

Indian Tribal Council Bars Military Funeral Protesters

In anticipation of yesterday's funeral for Nathan Goodiron, the first member of North Dakota's Three Affiliated Tribes to be killed in Afghanistan, the Tribal Council on Friday passed a resolution barring Rev. Fred Phelps Sr. and his followers from protesting at the funeral. (Associated Press.) Phelps' group (from the Topeka, Kansas Westboro Baptist Church) has shown up at military funerals around the country with signs claiming that combat deaths are due to U.S. tolerance of homosexuality. Shirley Phelps-Roper said her group from Westboro Baptist church would protest outside the reservation "on public rights of way."

Second Circuit Hears RLUIPA Case From Mamaroneck, NY

Yesterday, the U.S. Second Circuit Court of Appeals heard arguments in a long-running RLUIPA case in which the Village of Mamaroneck, New York is seeking to use its zoning laws to block construction of a new building by the Westchester Jewish Day School. The trial court ruled in favor of the school. (See prior posting.) The Westchester Journal News reports that Kevin Plunkett, the village's attorney, argued yesterday that the lower court's decision gives religious schools an unfair advantage over secular ones. He also argued that that RLUIPA, as it was applied by the trial court, violates the First Amendment's Establishment Clause. The U.S. Department of Justice has entered the case on the side of the school. Barry Welprin, a former zoning board member who voted in favor of the school's expansion charged that the majority of the board "did not approach this project with an open mind."

Cert. Granted On Taxpayer Standing To Challenge White House Faith-Based Office

Yesterday, the United States Supreme Court granted certiorari in Hein v. Freedom From Religion Foundation, No. 06-157. (See prior posting on filing of petition for cert. [Updated:] Here is the Brief in Opposition [Westlaw link] and the Solicitor General's reply brief to the petition.) The case involves the question of whether taxpayers have standing under the Establishment Clause to challenge activities of President Bush's Office of Faith-Based and Community Initiatives. The 7th Circuit Court of Appeals held that there is taxpayer standing to challenge Executive Branch spending for organizing national and regional conferences and for making speeches promoting faith-based funding, even though these activities were paid for from a general appropriation without Congressional earmarking of the funds for a specific program. (See prior posting.) Yesterday's Washington Post reported on the Supreme Court's action. [Thanks to Aaron Stemplewicz & to Marty Lederman via Religionlaw, for the cert. petition and reply brief links.]

Wiccan Symbol Dedicated In Nevada Military Cemetery

The Reno Gazette Journal reports that friends and family of a Nevada soldier killed over a year ago in Afghanistan, gathered today for the dedication of the first Wiccan pentacle symbol in a military cemetery. Yesterday's Las Vegas Sun gave additional details. While the U.S. Department of Veterans Affairs has still failed to act on requests by Wiccan families, the pentacle was placed on the Veterans Memorial Wall at the Northern Nevada Veterans Memorial Cemetery in Fernley because in September the Nevada Office of Veteran Services that has jurisdiction over the state cemetery approved the plaque. (See prior posting.) The multicultural, interfaith service for Sgt. Patrick Stewart of Fernley was scheduled to include blessings by American Indians, Jews, Christians and Wiccans.

Last Monday night, according to yesterday's Wren's Nest News, the cemetery was vandalized when someone using a high-powered rifle sprayed the cemetery's columbarium wall with bullets. Cemetery Superintendent Wes Block said he did not think that the shooting was related to the controversy surrounding Sgt. Patrick Stewart.

Settlement In Zoning Case Lets Illinois Mission Stay Downtown

A consent decree signed by an Illinois federal judge on Thursday ends a dispute between the city of Waukegan and a downtown storefront church, God's Hand Extended Mercy Mission. (See prior posting.) Last July, the city's Department of Planning & Zoning issued an order declaring that the church (which offers prayer, food and shelter to the disadvantaged) was in violation of zoning provisions barring "places of worship (and) religious organizations" from business districts. Sister Callie Dupree, founder of the mission, sued claiming that the city's zoning rules violate the mission's free exercise and equal protection rights. The Lake County (IL) News-Sun today reports that the parties' have now agreed that the mission can stay, and that the property on which it is located will not be rezoned in the future. In exchange, the church agreed not to seek damages from the city for violating its free exercise rights. [Thanks to Tom Ciesielka for the lead.]

Cert. Granted In Student Speech Case

Yesterday, the United States Supreme Court granted certiorari in a case involving free speech rights of high school students. The Court's ultimate decision will impact religious, as well as other, speech in high schools. And the speech at issue in the case, Morse v. Frederick, Case No. 06-278, arguably had a religious aspect to it. In 2002 in Juneau, Alaska, high school students were released from classes to watch the torch for the Winter Olympics-- on its way to Salt Lake City-- pass by. In hopes of getting his banner on television, student Joseph Frederick unfurled a banner reading "Bong Hits 4 Jesus". (For the uninitiated, "Bong Hit" refers to smoking marijuana using a water pipe.) School principal Deborah Morse tore down Frederick's banner and suspended him for 10 days. Frederick sued Morse for damages, and the U.S. 9th Circuit Court of Appeals upheld his claim. Yesterday's Baltimore Sun reports on the case.

Two Prisoner Free Exercise Decisions

The usual flood of prisoner free exercise cases has slowed down recently. Here are the two that have appeared since my last collection of decisions:

In Slusher v. Samu, 2006 U.S. Dist. LEXIS 84765 (D CO, Nov. 21, 2006), a Colorado prisoner claimed that authorities used his lack of a prison job as a pretext for refusing to permit him to attend Catholic mass. A federal district judge rejected his claim that this amounted to retaliation for filing certain grievances, but permitted him to proceed with a free exercise challenge to the denial.

In Watkins v. Trinity Service Group, 2006 U.S. Dist. LEXIS 85592 (MD FL, Nov. 27, 2006), a Florida federal district court rejected a prisoner's claims that his rights were violated when meat products were present in the vegetarian meals served to him for religious reasons. The court found that the defendant company providing the meals had no authority to change the menu prescribed by the Sheriff's office. The court also held that merely receiving occasional meals that violate his religious tenets subjects plaintiff only to de minimis injury.

No Monetary Damages For Violation Of Connecticut's Free Exercise Clause

Spector v. Board of Trustees of Community-Technical Colleges, 2006 U.S. Dist. LEXIS 86601 (D CT, Nov. 29, 2006), involves a series of claims by a priest who was a faculty member and coordinator of marketing at Naugatuck Valley Community College. After he was denied an academic promotion, he sued in federal court on a number of bases. As part of a long opinion largely devoted to other issues, the court held that while the Connecticut constitution protects the free exercise of religion, it does not provide a private right of action for money damages for violation of this protection.

State Appeals Court Upholds San Diego Voters' Transfer Of Mt. Soledad To Feds

Yesterday, another decision in the seemingly endless series of rulings relating to the Mt. Soledad Cross was handed down. The 29-foot, 24-ton Latin cross was erected by the Mt. Soledad War Memorial Association in 1954 on parkland belonging to the city of San Diego, California. Yesterday's decision, Paulson v. Abdlnour, (CA 4th Dist. Ct. App., Nov. 30, 2006), involved an Establishment Clause challenge to a decision by San Diego voters to "donate to the federal government ... the City's ... interest in the Mt. Soledad Veterans Memorial property for the federal government's use ... as a national memorial honoring veterans of the United States Armed Forces." The court held that the referendum on the issue, known as Proposition A, did not violate either the state or federal constitution's establishment prohibitions, nor did it violate the state constitution's "no preference" clause.

Reversing the trial court, the court of appeals held that it could not find that the predominant purpose of the voters in approving Proposition A was to advance religion. Nor was the primary effect the endorsement or advancement of Christianity. Nothing in Proposition A required the federal government to keep the Cross on the transferred property. Finally the court of appeals rejected the trial court's "troublesome proposition" that there was excessive religious entanglement between the City and the Thomas More Law Center because a TMLC attorney served as a special assistant to the city attorney.

This decision will have practical impact only if other litigation challenging the federal government's taking of the Mt. Soledad property by eminent domain is successful. That taking did not rely on the transfer authorized by Proposition A. (See prior posting.)

A report yesterday by City Wire discusses reaction to the decision.