Recent Prisoner Free Exercise Cases

In Aref v. Lynch, (DC Cir., Aug. 19, 2016), the D.C. Circuit Court of Appeals, in an opinion involving a number of other issues as well, rejected the claim of an inmate convicted of supporting terrorism that he was denied transfer out of the restrictive Communications Management Unit as retaliation for a sermon he gave as part of a Muslim prayer meeting.

In Shaw v. Upton, 2016 U.S. Dist. LEXIS 107690 (SD GA, Aug. 15, 2016), a Georgia federal magistrate judge recommended that an inmate be allowed to move ahead with most of his claims contending that he was denied meals in accordance with the tenets of his religion. UPDATE: The court adopted the magistrate's recommendations, 2016 U.S. Dist. LEXIS 128232, Sept. 20, 2016.

In Thomas v. Lawler, 2016 U.S. Dist. LEXIS 108143 (MD PA, Aug. 16, 2016), a Pennsylvania federal district court held on various grounds that a Muslim inmate's rights under the Americans With Disabilities Act were not infringed when Friday Jumu'ah services were held in the multi-faith chapel accessible only by walking four flights of steps.

In Sanford v. Madison County, 2016 U.S. Dist. LEXIS 108734 (SD IL, Aug. 17, 2016), an Illinois federal district court dismissed some, but not all, defendants in a suit by a Muslim jail inmate complaining that he was denied Jumu'ah prayer services and was denied religious counseling on a equal basis with Christian inmates.

In Ryan v. Graham, 2016 U.S. Dist. LEXIS 108976 (ND NY, Aug. 17, 2016), a New York federal district court adopted a magistrate's recommendations and dismissed an inmate's complaint over rules that limited him to having eleven religious books at one time.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 109247 (SD GA, Aug. 17, 2016), a Georgia federal magistrate judge allowed an inmate to proceed with his RLUIPA challenge to the denial of a Rastafarian diet.

In Deangelis v. Cowels, 2016 U.S. Dist. LEXIS 109785 (D CT, Aug. 18, 2016), a Connecticut federal district court dismissed, with leave to amend, an inmate's complaint that his free exercise rights were infringed when his religious gold cross and gold necklace were taken from him and subsequently lost.

In Brown v. Cox, 2016 U.S. Dist. LEXIS 110284 (ED CA, Aug. 18, 2016), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that his free exercise rights were infringed when he was denied access to his religious beads and cross while temporarily in administrative segregation.

In White v. Baker, 2016 U.S. Dist. LEXIS 110873 (D NV, Aug. 19, 2016), a Nevada federal district court allowed an inmate to move ahead with his suit seeking a "sacred Heraklean diet" (high protein natural and organic cuisine) and the right to possess two religious rings and a necklace, but dismissed his claims seeking group worship and official recognition of his religion.

In Carey v. Mason, 2016 U.S. Dist. LEXIS 110879 (MD AL, Aug. 18, 2016), an Alabama federal magistrate judge, among other issues, dismissed a Buddhist inmate's complaint that the warden tore up his bible (Diamond Sutra) and threw it in the trash.

Recent Prisoner Free Exercise Cases

In Davis v. Davis, (5th Cir., June 14, 2016), the 5th Circuit , while affirming in part, vacated and remanded a district court's refusal to allow Native American inmates to wear long hair or kouplocks. The district court had not evaluated plaintiffs' claims in light of the specific characteristics and security risks posed by each inmate.

In Rouser v. White, (9th Cir., June 17, 2016), the 9th Circuit, in a 2-1 decision, held that the district court had abused its discretion in terminating a 2011 consent decree that allowed a Wiccan inmate to practice his religion in various ways.

In Epps v. Hein, 2016 U.S. Dist. LEXIS 73906 (SD GA, June 6, 2016), a Georgia federal magistrate judge dismissed, but with leave to amend to allege a sincere religious belief, an inmate's complaint that he was denied a kosher Rastafarian diet.

In Ahdom v. Etchebehere, 2016 U.S. Dist. LEXIS 76149 (ED CA, June 9, 2016), a California federal district court permitted a Muslim inmate to move ahead under the free exercise clause with his complaint that he had been denied religious Ramadan Halal meals for a period of six days.

In Parker v. Shepard, 2016 U.S. Dist. LEXIS 77854 (SD GA, June 15, 2016), a Georgia federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 78216, April 18, 2016)  and denied a preliminary injunction to a Rastafarian inmate who wished to wear long hair and dreadlocks.

In Muhammad v. Crews, 2016 U.S. Dist. LEXIS 78744 (ND FL, June 15, 2016), a Florida federal district court, adopting a magistrate's recommendations in part, dismissed a number of claims by a Muslim inmate but remanded for evaluation under a proper framework his claim that he was denied a religious diet during a 4-year period.

In Owens v. Kernan, 2016 U.S. Dist. LEXIS 78854 (ED CA, June 16, 2016), a California federal magistrate judge dismissed a claim by an inmate serving a life sentence that denial of a conjugal visit to consummate his marriage violates his rights under RLUIPA.

Recent Articles of Interest

From SSRN:

• Daniel Schick, Keeping Up with the Principle of Neutrality: Why Courts Should Not Extend Elmbrook's Mistaken Establishment Clause Analysis, (Mississippi Law Journal, Vol. 84, Forthcoming).
• Philip Hamburger, Equality and Exclusion: Religious Liberty and Political Process, (March 10, 2014).
• Ronan McCrea, European Law and the Prohibition of the Veil, (March 4, 2011).
• Andra le Roux-Kemp, A Question of Life and Death, (Comparative and International Law Journal of Southern Africa 2013 46(1), 74-89).
• W. Cole Durham, Robert Theron Smith & William C. Duncan, A Comparative Analysis of Laws Pertaining to Same-Sex Unions, (March 14, 2014).
• James E. Wheeler, God, Guns and Others: Why Restrictions on Carrying Firearms in Church Conflict with a Moral Duty to Defend Others, (March 11, 2014).
• Benjamin L. Berger, Belonging to Law: Religious Difference, Secularism, and the Conditions of Civic Inclusion, (Osgoode Legal Studies Research Paper No. 16 (2013)).
• Benjamin I. Berger, The Virtues of Law in the Politics of Religious Freedom, (Journal of Law and Religion, Vol. 29, No. 3, 2014).
• Malick W. Ghachem, Religious Liberty and the Financial War on Terror, (First Amendment Law Review, Vol. 12, No. 1, 2013).

From SmartCILP:

• Max Guirguis, A Coat of Many Colors: The Religious Neutrality Doctrine From Everson to Hein, [Lexis link],  43 Stetson Law Review 67-118 (2013).

LDS Church Sued Along With Scouts In Suit Over Abuse By Scoutmaster

The Legal Intelligencer reports that last week, in Common Pleas Court in Philadelphia (PA), a 28-year old man filed suit against the Boy Scouts of America and the Church of Jesus Christ of Latter Day Saints for damages because of sexual abuse plaintiff suffered at the hands of scout leader Vance Hein in 1998- 1999. The suit, filed Dec. 12, alleges that the LDS Church "jointly operated and/or controlled" the troop along with the Boy Scouts. Hein, who is currently in prison, was also a church youth leader.  Plaintiff's lawyers plan to depose LDS Church leaders to determine their role in keeping Hein on as a scout leader.

7th Circuit: No Taxpayer Standing To Challenge Bald Knob Cross Grant

In Sherman v. State of Illinois, (7th Cir., June 4, 2012), the U.S. 7th Circuit Court of Appeals held that activist and atheist Robert Sherman lacks taxpayer standing to challenge a $20,000 grant by the Illinois Department of Commerce and Economic Opportunity to Friends of the Cross for restoration of the Bald Knob Cross, an Illinois tourist attraction. Nor can he force Friends of the Cross to return the funds to the state.  Under the Supreme Court's decision in Hein v. Freedom from Religion Foundation, Inc., taxpayers have standing to bring an Establishment Clause challenge only where funds have been spent pursuant to a legislative mandate, and not where the spending decision was an administrative one under a general appropriation. The 7th Circuit held that the procedure in Illinois under which an administrative agency makes grants from a general appropriation pursuant to patronage-based decisions from legislative political leaders is not the same as a specific legislative appropriation. The court said:

It is not enough to say that Friends was "specifically selected" by the legislative leadership for the grant, as we see no room in the Supreme Court’s decisions for the Realpolitik approach that Sherman urges.

(See prior related posting.)

Recent Articles of Interest

From SSRN:

• Frederick Mark Gedicks, God of Our Fathers, Gods for Ourselves: Fundamentalism and Postmodern Belief, (William & Mary Bill of Rights Journal, Vol. 18, pp. 901-914, 2010).
• Carl H. Esbeck, Taxpayer Standing from Flast to Hein, (Mississippi Law Journal Online, Vol. 80, 2010).
• Karima Bennoune, Remembering the Other's Others: Theorizing the Approach of International Law to Muslim Fundamentalism, (Columbia Human Rights Law Review, Vol. 41, pp. 635-698, 2010).
• Saadiya Suleman, Freedom of Religion and Anti Conversion Laws in India: An Overview, (ILI Law Review, Vol. 1, No. 1, p. 106, 2010).
  

From SmartCILP:

• Carolyn Evans, Constitutional Narratives: Constitutional Adjudication on the Religion Clauses in Australia and Malaysia, 23 Emory International Law Review 437-468 (2009).
• Russell Powell, Zakat: Drawing Insights for Legal Theory and Economic Policy from Islamic Jurisprudence, 7 Pittsburgh Tax Review 43-99 (2009).
• Asifa Quraishi, Taking Shari'a Seriously (Reviewing Noah Feldman, The Fall and Rise of the Islamic State), 26 Constitutional Commentary 297-311 (2010).
• John Witte, Jr. & M. Christian Green, Religious Freedom, Democracy, and International Human Rights, 23 Emory International Law Review 583-608 (2009).

Elena Kagan Nominated By Obama To Supreme Court [UPDATED]

The White House this morning announced President Barack Obama's nomination of Solicitor General and former Harvard Law School Dean Elena Kagan to the U.S. Supreme Court to replace retiring Associate Justice John Paul Stevens. (Full text of remarks by President and Kagan.) The New York Times today has an extensive background article on Kagan along with the full text of her confirmation hearings for Solicitor General. If confirmed, she will become the third Jewish Justice (along with Justices Ginsburg and Breyer). This will mark the first time that three members of the Jewish faith sit on the Supreme Court at the same time. Also, with Justice Stevens retirement, it will mark the first time that the high court has had no Protestant justices. (See prior posting.) One of the anecdotes recounted by the Times is Kagan's clash, as a 12 or 13 year old, with her rabbi over what the content of her bat mitzvah ceremony would be.

Much of Kagan's published scholarly writings (full list at pp. 52-53 of Hearings) focus on the constitutional issues surrounding the regulation of hate speech. These include: The Changing Faces of First Amendment Neutrality: R.A.V. v. St. Paul, Rust v. Sullivan, and the Problem of Content-Based Underinclusion, 1992 Supreme Court Review 29 [Hein-on-Line link]; Regulation of Hate Speech and Pornography After R.A.V., 60 Univ. Chi. L. Rev. 873 (1993) [LEXIS link]; When A Speech Code Is A Speech Code: The Stanford Policy and the Theory of Incidental Restraints, 29 UC Davis L. Rev. 957 (1996); and Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U. Chi. L. Rev. 413 (1996) [LEXIS link].

During Kagan's confirmation hearings for Solicitor General, she was questioned (Hearings at pp. 97-98) about a memo she wrote as a law clerk for Supreme Court Justice Thurgood Marshall suggesting that government funding through the Adolescent Family Life Act for faith-based social service organizations to discourage teen pregnancy was improper because inevitably religious teaching would be injected into the organizations' social services. At her hearings, she rejected her earlier position, saying in written answers that her earlier view was "deeply mistaken" and that she now believes that it is incorrect to presume that a religious organization will use grant funds in an impermissible way to further religion.

Taxpayers Have Standing To Challenge TVPA Grant To Catholic Bishops

In ACLU of Massachusetts v. Sebelius, (D MA, March 22, 2010), a Massachusetts federal district court held that taxpayers have standing to challenge a grant to the U.S. Conference of Catholic Bishops under the Trafficking Victims Protection Act. USCCP made grants to subcontractors, and specified in all of them that no referrals could be made for abortion services of contraceptive materials. In finding standing, the court said:

The issue is by no means open and shut, but the court is of the view that the ACLU has met its burden under Flast of showing a link between the congressional power to tax and spend and a possible violation of the Establishment Clause in the grant of public funds to the USCCB....

In closing, I do not pretend that Hein offers clear direction to lower courts as to how to draw the line between just enough congressional involvement to confer taxpayer standing and too little so as to deny it. I further recognize that the distinction between congressional and executive spending propounded in Hein may be unrealistic given the complexities of modern interactions between Congress and the Executive Branch. I have no present allegiance to either side of the debate, only a firm conviction that the Establishment Clause is a vital part of the constitutional arrangement envisioned by the Framers, and perhaps a reason we have not been as riven by sectarian disputes as have many other societies. I also agree that a rule that has no enforcement mechanism is not a rule at all. Taxpayer standing may not be the best or the most desirable or even a necessary means of enforcing the separation of church and state, but unless the Supreme Court decrees differently, it is one of the principal tools available. The uncertainty of the scope of taxpayer standing necessarily invites decisions lacking in consistency. I have no doubt that many of my colleagues would (and will) in all good faith draw the line differently than have I. But until the Supreme Court gives definitive guidance, judges will have to decide using their best understanding of the law as it exists. That is what I have attempted to do here.

ACLU Has Taxpayer Standing To Challenge Charter School As Promoting Islam

In American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy, (D MN, July 21, 2009), a Minnesota federal district court held that plaintiff has taxpayer standing to challenge as an Establishment Clause violation the funding of a charter school by the state of Minnesota. Plaintiff alleges that the Tarek ibn Ziyad Academy advances the Muslim religion and fosters entanglement between government and religion. The court rejected defendants' argument that under the U.S. Supreme Court's Hein decision, funding of the school was a discretionary executive branch decision, not a legislative appropriation. It said: "The fact that the Commissioner [of Education] has the responsibility to choose or authorize charter schools (which then in turn receive funding) does not mean that Plaintiff here is challenging an executive action." The court did, however, dismiss plaintiff's claim of statutory violations and dismissed claims against certain of the defendants on sovereign immunity grounds. ACLU yesterday issued a press release on the decision and the Minneapolis Star-Tribune reported on the case. (See prior related posting.)

Issues of Religion Largely Absent From Second Day of Sotomayor Hearings

Yesterday, at the second day of hearings on the nomination of Judge Sonia Sotomayor as Associate Justice on the U.S. Supreme Court, religion, religious freedom and church-state issues received little attention either in questions posed to the nominee or in her answers. Don Byrd, who has been blogging live from the hearings, identifies three exchanges relating to religious issues. The full hearing transcripts are available via the Washington Post. Here are the relevant exchanges:

In questioning Sotomayor about her views on the Second Amendment, Sen. Orin Hatch asked: "OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?" To which Sotomayor replied: "Those rights have been incorporated against the states. The states must comply with them."

Sen. Lindsey Graham, expressing his concern about expansive interpretations of the Constitution said: "And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly.... [A] lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing...."

Sen Diane Feinstein, asking about the overruling of precedent, referred to the Hein case that denied a taxpayer standing to challenge spending by President Bush's faith-based office. She said: "In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so. Scalia wrote in the Hein case ... 'Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive....'"

(See prior related posting.)

Recent Articles of Interest

From SSRN:

• Patrick McKinley Brennan, The Place of 'Higher Law' in the Quotidian Practice of Law: Herein of Practical Reason, Natural Law, Natural Rights, and Sex Toys, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Bailey H. Kuklin, The Natures of Universal Moralities, (Brooklyn Law Review, Forthcoming).
• Preston C. Green & Joseph Oluwole, Hein v. Freedom from Religion Foundation and Taxpayer Standing, (Wayne Law Review, Vol. 54, No. 3, 2008).

From SmartCILP:

• Scott Atran & Robert Axelrod, Reframing Sacred Values, 24 Negotiation Journal 221-246 (2008).
• John R. Dorocak, The Income Tax Exclusion of the Housing Allowance for Ministers of the Gospel per I.R.C. Section 107: First Amendment Establishment of Religion or Free Exercise Thereof--Where Should the Warren Court Have Gone?, 54 South Dakota Law Review 233-252 (2009).
• Stephen P. Halbrook, "Arms in the Hands of the Jews are a Danger to Public Safety": Nazism, Firearm Registration, and the Night of the Broken Glass, 21 St. Thomas Law Review 109-141 (2009).
• Andrew S. Mansfield, Religious Arguments and the United States Supreme Court: A Review of Amicus Curiae Briefs Filed by Religious Organizations, 7 Cardozo Public Law Policy & Ethics Journal 343-394 (2009).
• Eugene R. Milhizer, So Help Me Allah: An Historical and Prudential Analysis of Oaths as Applied to the Current Controversy of the Bible and Quran in Oath Practices in America, 70 Ohio State Law Journal 1-71 (2009).
• A David Pardo, Judicial Discretion in Talmudic Times and the Modern Era, 7 Cardozo Public Law, Policy & Ethics Journal 429-454 (2009).
• Steven D. Smith, Discourse in the Dusk: The Twilight of Religious Freedom?, (Reviewing Kent Greenawalt, Religion and the Constitution--Volume 2: Establishment and Fairness.) 122 Harvard Law Review. 1869-1907 (2009).

Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions

U.S. Supreme Court Associate Justice David Souter sent a letter to President Obama today informing him that he plans to retire at the end of the Court term this year. President Obama delivered a statement (full text) in the White House briefing room praising Souter's service on the court. The Washington Post reports on developments.

Here is a list (with links) of the majority, concurring and dissenting opinions on church-state, religious freedom and religious discrimination issues that Justice Souter has written during his 19 years on the Court.

Majority opinions:

• McCreary County v. ACLU, 545 U.S. 844 (2005).
• Edelman v. Lynchburg College, 535 U.S. 106 (2002).
• Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).

Concurrences:

• Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
• Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995).
• Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
• International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
• Lee v. Weisman, 505 U.S. 577 (1992).

Dissents:

• Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).
• Van Orden v. Perry, 545 U.S. 677 (2005).
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
• Good News Club v. Milford Central School, 533 U.S. 98 (2001).
• Mitchell v. Helms, 530 U.S. 793 (2000).
• Agostini v. Felton, 521 U.S. 203 (1997).
• Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

(Please let me know of any omissions in the list.) [Updated.] [Thanks to Ed Elfrink and Kevin Pybas for additions.]

7th Circuit Limits Taxpayer Standing In Suit Seeking Restitution From Notre Dame

The U.S. 7th Circuit Court of Appeals in Laskowski v. Spellings, (7th Cir., Oct. 14, 2008) held that federal taxpayers lack standing to sue a private recipient of a federal grant for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case. The case involved a $500,000 Congressional earmark for Notre Dame University to use to operate a teacher training program. While the suit was pending, the grant expired. This mooted the claim for an injunction against the Secretary of Education. Originally in a 2-1 decision, the 7th Circuit permitted the claim for restitution against Notre Dame to proceed. However, the U.S. Supreme Court granted certiorari and remanded the case for reconsideration in light of its Hein decision. The 7th Circuit now concludes that after Hein, "taxpayers continue to have standing to sue for injunctive relief against specific congressional appropriations alleged to violate the Establishment Clause, but that is all." [Thanks to Derek L. Gaubatz for the lead.]

New Director Named For White House Faith-Based Office

Blog from the Capital reports that Jedd Medefind, Deputy Director of the White House Office of Faith Based and Community Initiatives, will succeed outgoing director, Jay Hein, who recently resigned for personal family reasons. The new head of OFBCI earlier directed the faith-based office at the Department of Labor. (See prior related posting.)

Personnel Changes At Two Federal Religion Agencies

Personnel changes have been announced at two federal agencies dealing with issues of religion. The U.S. Commission on International Religious Freedom announced yesterday that James D. Standish has been appointed its new Executive Director. Previously Standish served for seven years as Director of Legislative Affairs at the Seventh-day Adventist Church World Headquarters. Standish replaces Joseph R. Crapa who died last year.

Meanwhile, The Roundtable reports that Jay Hein, director of the White House Office on Faith-Based and Community Initiatives, has resigned effective August 29 in order to care for his father who is suffering from cancer. Hein announced his resignation last week during his regular conference call with state liaisons to religious charities. The White House is seeking a replacement for Hein. [Thanks to Melissa Rogers for this lead.]

White House Hosts Conference On Faith-Based Initiative

Yesterday and today the White House is hosting the "Innovations in Effective Compassion" National Conference, a meeting of over 1000 people interested in the federal Faith Based and Community Initiatives. In anticipation of the conference, OFBCI director, Jay Hein, held a press briefing (full text). Responding to a question about church-state issues raised by the program, Hein said:

I think really one of the stellar achievements of this initiative is that we've clarified ... what is allowable and what is not allowable, according to the First Amendment.... the President felt very strongly that it was wrong to just artificially close the door for those who were motivated by their private faith to perform a public service -- if they were creating these housing solutions for the homeless, and other important community outcome.

At the same time, we know that the First Amendment prohibits establishment of church, and so the President said very clearly that tax dollars are not to be used for spiritual mission -- only for secular mission; only for community service mission.

Yesterday as President Bush addressed the conference (full text of remarks), the White House issued a Fact Sheet on the Initiative. The President summarized the achievements of OFBCI:

we have helped level the playing field for faith-based groups and other charities -- especially small organizations that have struggled to compete for funds in the past. We've educated religious groups about their civil rights. We've made the federal grant application process more accessible and transparent. We've trained thousands of federal employees to ensure that government does not discriminate against faith-based organizations. We've ensured that these groups do not have to give up their religious character to receive taxpayer money.

The Justice Department has also released the text of Attorney General Michael B. Mukasey's remarks prepared for the conference. Describing the reexamination of federal policy represented by OFBCI, he said in part:

The Department of Justice has played, and will continue to play, a major role in that reexamination. In doing so, we built upon the principles behind Congress’s Charitable Choice laws and the Supreme Court’s First Amendment jurisprudence: that government must respect the essential character of faith-based providers; that no one needing help may be turned away because of his or her religion and that no one may be forced into religious practices; and that directly-awarded government funds must be spent on social services, not on religion.

UPDATE: Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives,writes a column in the June 28 Washington Post setting out questions on the future of the faith-based initiative that he believes should be asked of the Presidential candidates.

Recent Scholarly Articles and New Book of Interest

From SSRN:

• Teresa Stanton Collett, Advancing the Culture of Life Through Faithful Citizenship, (Journal of Religion and Society, 2008).
• Akiva Shapiro, Should the Lower Courts Save Taxpayer Standing? Interpreting Hein v. Freedom from Religion Foundation Narrowly Through the Lens of Judicial Spending,(Journal of Appellate Practice and Process, Vol. 10, No. 2, 2009).
• Scott A. Taylor, Spirituality and Academic Performance at a Catholic Law School: An Empirical Study, (California Western Law Review, Vol. 45, 2008).

Recent Law Review Articles:

• Erwin Chemerinsky, Why Church and State Should Be Separate, 49 William & Mary Law Review 2193 (2008).
• Gerard V. Bradley, Religion at a Public University, 49 William & Mary Law Review 2218 (2008).

New Book:

Jeff Sharlet, The Family: The Secret Fundamentalism at the Heart of American Power, (HarperCollins, May 2008).

Court Says No Standing To Challenge State Funds For Faith-Based Agency

In Pedreira v. Kentucky Baptist Homes for Children, Inc., (WD KY, March 31, 2008), a Kentucky federal district court dismissed on standing grounds a lawsuit by Kentucky state taxpayers claiming that the state violated the Establishment Clause by providing funding to Kentucky Baptist Homes for Children (KBHC). The state pays KBHC to provide services to children placed in its care as wards of the state. Plaintiffs alleged that KBHC filled staff positions in accordance with religious tenets and sought to instill Christian values and teachings in youths in its programs. In dismissing the lawsuit, the court relied on two recent U.S. Supreme Court decision. It held that Daimler Chrysler Corp. v. Cuno requires the application of federal standing doctrines to state taxpayer lawsuits, including those brought under the Establishment Clause. It then held that because KBHC receives funds through contracts with state agencies rather than through legislative action, under Hein v. Freedom from Religion Foundation plaintiffs lack taxpayer standing. Yesterday's Louisville Courier-Journal reports on the case which was originally filed in 2000 and included religious discrimination claims against KBHC which were subsequently dismissed by the court.

New Articles and Books of Interest

From SSRN:

• Raphael Cohen-Almagor, Hate in the Classroom: Free Expression, Holocaust Denial, and Liberal Education, (American Journal of Education, Vol. 114, No. 2, pp. 215-241, February 2008).


• Russell Powell, Theology in Public Reason and Legal Discourse: A Case for the Preferential Option for the Poor, (March 20, 2008).


• Carl H. Esbeck, What the Hein Decision Can Tell Us about the Roberts Court and the Establishment Clause, (Mississippi Law Journal, Vol. 78, No. 2, Forthcoming).


• Nicholas A. Mirkay, Is it 'Charitable' to Discriminate?: The Necessary Transformation of Section 501(C)(3) into the Gold Standard for Charities, (Wisconsin Law Review, Vol. 2007, July 3, 2007).


• Nicholas A. Mirkay, Losing Our Religion: Reevaluating the 501(C)(3) Exemption of Religious Organizations that Discriminate, (Widener Law School Legal Studies, Research Paper No. 08-35, March 24, 2008).


• Sue Irion, The [Un]Constitutionality of the NLRA's Religious Accommodation Provision, (Gonzaga Law Review, Vol. 44, No. 2, 2008).


• Dayna Bowen Matthew, Race, Religion, and Informed Consent -- Lessons from Social Science, (Journal of Law, Medicine and Ethics, Vol. 36, No. 1, 2008).


• David L. Gregory, Not the Bishops' Finest Hour: Economic Justice, with Cerberus Unchained?, (St. John's Legal Studies Research Paper No. 08-0119, March 2008).

From SmartCILP:

• David K. DeWolf, Book Review (Reviewing Stephen Mansfield, Ten Tortured Words: How the Founding Fathers Tried to Protect Religion in America.and What's Happened Since), 85 Denver University Law Review 443-461 (2007).


• Randy Lee, A Rose By Any Other Word Would Smell As Sweet", But Would It Still Be Treasured: The Mislabeling and Misunderstanding of Parents and Grandparents in American Policy, 15 Elder Law Journal 607-631 (2007).


• Mark Strasser, Preaching, Fundraising and the Constitution: On Proselytizing and the First Amendment, 85 Denver University Law Review 405-441 (2007).

Recent Books:

• David Gushee, The Future of Faith in American Politics: the Public Witness of the Evangelical Center, (Baylor University Press, 2008).


• Eleanor Abdella Doumato & Gregory Starrett (eds.), Teaching Islam: Textbooks and Religion in the Middle East, (Viva Books New Delhi, 2008), reviewed in Pakistan Daily Times.


• Noah Feldman, The Fall and Rise of the Islamic State, (Princeton University Press, 2008), reviewed in Middle East Online.
• George Weigel, Against the Grain, (Crossroad Publishing Co., 2008).

Top Ten 2007 Developments In Church-State and Free Exercise of Religion

Here are my nominations for the 2007 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. A link to one of the postings on each development is also provided. I invite your comments, either concurring or dissenting, on my choices.

1. Religious views of candidates becomes major issue in race for Republican presidential nomination.
2. Supreme Court narrows standing in Establishment Clause cases: Hein v. Freedom From Religion Foundation.
3. Eighth Circuit strikes down state financing of faith-based prison rehabilitation program-- Americans United for Separation of Church and State v. Prison Fellowship Ministries.
4. Suits over property ownership of break-away churches mushroom, particularly as increasing number of Episcopal congregations opt for more conservative affiliations.
5. Christian beliefs on homosexuality lead to opposition to extension of federal Hate Crimes law.
6. Anti-funeral picketing laws directed at Westboro Baptist Church become subject of litigation in several states.
7. Sectarian prayer in Indiana legislature sparks litigation; 7th Circuit panel finds no taxpayer standing in case.
8. State pharmacy boards challenged over rules requiring dispensing of "morning after" pill.
9. Muslim foot basins in university and airport rest rooms provoke controversy.
10. Florida Hebrew language/Jewish culture publicly-financed charter school approved over protests.

For comparison, here are links to my top 10 picks for 2006 and 2005. You may also find it interesting to compare my choices with the 2007 top story picks by the Religion Newswriters as well as Time Magazine's picks for the Top 10 Religion Stories of 2007.