CLS Suit Against University of Toledo Settled

The Alliance Defense Fund reported last week that a settlement has been reached in a suit filed by the Christian Legal Society against the University of Toledo. One of a series of claims around the country against law schools by the CLS (see prior posting), the suit challenged attempts by the University to apply its non-discrimination policy to CLS. CLS requires anyone seeking to become a member to subscribe to its Statement of Faith. CLS interprets the Statement to prohibit homosexual conduct and heterosexual sex outside of marriage by those who wish to become full members of the organization.

The ADF reports: "University of Toledo officials agreed to accept the CLS chapter’s constitution and to recognize the group as an official registered student organization. The university also agreed to allow all student organizations to include references and citations to religious texts, such as the Bible, in their constitutions and bylaws. The university further acknowledged that religious student organizations are not required to abide by non-discrimination policies that would force the groups to accept leaders and members who do not agree with their beliefs."

Last year, Ohio State University reached a similar settlement with CLS.

In Ohio, Stem Cell Issue Posed As Battle Between Religious Traditions

In budget debates over the last few weeks, Ohio's legislature has become embroiled in the stem-cell research issue. This weekend, the Conference Committee placed back into the budget bill language that will totally prohibit the use of so-called Third Frontier state funding for stem cell research. What is particularly interesting here, however, are the arguments used by a leading proponent of stem cell research, State Senator Eric Fingerhut. In addition to the usual countering of religious opposition with secular arguments, Fingerhut increasingly used religious arguments to advance the cause of such research. Quoted in the Warren Tribune-Chronicle last week, Fingerhut said:

"There is one religious perspective that is opposed to [stem cell research]. I respect that perspective, but it does not represent the religious view of a majority of Ohioans. My faith [Jewish] and many Protestant denominations all believe the same God that created embryos also created the skill of scientists to do research and commands us to try to save life through this research. There is an ethical and moral obligation to do the research, and I do not believe the state should take the position of one religious domination over another. God created stem cell research.''

By the way, the blog Stem Cellular has an archive page devoted solely to the issue in Ohio.

AJC Supports Cert In Case On Religious Drug Rehabilitation Programs

Today the American Jewish Congress announced that it has filed an amicus brief with the U.S. Supreme Court supporting the granting of certiorari in the case of Hanas v. Michigan. At issue is whether the Michigan courts violated the First Amendment rights of a practicing Roman Catholic drug user by requiring him to attend a pervasively religious evangelical Protestant drug rehabilitation program in order to avoid jail or obtain an expungement of his criminal record. The original petition for certiorari was filed in January by the ACLU of Michigan.

House Bill Would Withhold Funds For Removal of 10 Commandments In Indiana

In January 2005, a federal district court ordered a 10 commandments monument removed from the Gibson County court house lawn in Princeton, Indiana. Now, in order to thwart that ruling, a provision has been placed in the Department of Justice's appropriation bill by a vote of the House of Representatives last Wednesday to prohibit the US Marshals Service from using any funds to carry out the court order. In reporting on this development today, the Mt. Carmel Republican Daily Register quotes Indiana Congressman John Hostettler, who had sponsored the of the legislation, as saying: "The Founders certainly never intended for federal court rulings that violate Americans' rights to be blindly funded and enforced by the other two branches. The bill we passed today employs the Legislature's power of the purse to check a federal court that's attempting to turn a constitutional right into a constitutional prohibition."

Bar Council In India Denies Nun Right To Practice Law

In Kerala, India, a nun has been denied enrollment as an advocate by the Bar Council on the ground that she is already engaged in another profession. Web India 123 reports today that Sister Teena Jose is going to court to contest the ruling, arguing that her position as a sister is a matter of religion, not a profession.

President At Natl. Hispanic Prayer Breakfast

Last Thursday, President Bush delivered remarks at the National Hispanic Prayer Breakfast, held at the Andrew Mellon Auditorium in Washington, D.C. This is the third "national" prayer breakfast the President has addressed this year. In May he spoke at the National Catholic Prayer Breakfast (see prior posting), and in February he addressed the annual National Prayer Breakfast. After the 2004 National Prayer Breakfast, the New Republic's Easterblogg raised some provocative questions about the institution of prayer breakfasts. Some of the criticisms may be cheap shots, like this description of the event: "hundreds of dignitaries and big-shots get together to proclaim their deep prayerful concern for the downtrodden while being served by impoverished Salvadorans and Mexicans". But as prayer breakfasts proliferate, the critique is worth re-reading.

European Convention Seen As Requiring Recognition of Humanist Marriages

Scotland's Registrar General has interpreted the European Convention on Human Rights to require him to recognize Humanist wedding ceremonies. According to a report today in DeHavilland, previously Humanists needed to go through a valid civil ceremony (before their Humanist ceremony) in order to have their marriage legally recognized. The British Humanist Association has written to the Lord Chancellor urging the application of this ruling to England and Wales as well, or, alternatively, the introduction of new legislation to achieve this result in those jurisdictions. (Full text of letter.)

Conflict On Trial Tactics Among Intelligent Design Proponents

There appears to be dissension in the ranks of Intelligent Design proponents. According to the York Daily Record today, the Dover Pennsylvania Area school board, which is in federal court defending its decision to teach Intelligent Design, essentially fired three of its experts when they insisted on bringing their own lawyers to their depositions.

Commentary: Church-State, Dean Rudenstine and Understanding "Religion"

Church-state issues often involve fundamentally different understandings of the nature of religious faith. That fact became clear yesterday when the New York Law Journal reported on recent remarks by Cardozo Law School Dean David Rudenstine. Rudenstine’s remarks have prompted a lively debate in the blogosphere. Dean of the law school at religiously-affiliated Yeshiva University, Rudenstine was reported to have said in a speech to pre-law advisors:

"Faith challenges the underpinnings of legal education. Faith is a willingness to accept belief in things for which we have no evidence, or which runs counter to evidence we have."

Mark Sargent, at Mirror of Justice blog, takes Rudenstine to task: “Many of us in the Catholic center and left are deeply frustrated by the religious right's cooptation of the religious voice in public life. We believe that the Bush/DeLay/Frist type of "Christian nationalism" is deeply antagonistic to the Catholic Tradition. I believe that it even verges on a kind of blasphemy, as it wraps the cross in the flag. But for Rudenstine to argue that there is no place for faith in public discourse … [leads to] impoverishing the quality of debate within law schools and marginalizing (or excluding) those students who seek to integrate faith, reason and public responsibility in their lives. This constitutes a kind of secularist fundamentalism that is as unsophisticated, un-nuanced and dogmatic as any religious fundamentalism. In my opinion his statements are also unworthy of the great Jewish ethical and social traditions that is Yeshiva's legacy….”

It seems to me that Rudenstine commits a more fundamental error. He assumes that religious faith is about things for which the accumulation of evidence is possible. Faith should be about fundamental values, not about historical facts or scientific theories. The first true act of religious faith expressed in Genesis is not the blind acceptance of facts for which we have no evidence. It is Abraham’s decision to act as lawyer for the inhabitants of Sodom. Abraham invokes his values to challenge God over God’s own decision to destroy the innocent along with the wicked (Genesis 18). The abhorrence of “guilt by association” is a basic religious value. An evidentiary hearing is irrelevant to whether that proposition is one that should be at the basis of a legal system. It is that foundational value, and not the historical accuracy of the story of Sodom and Gomorrah, that is the lesson of religious faith.

Some of the responses that take issue with Dean Rudenstine’s remarks reflect the same misunderstanding that Rudenstine himself holds. On Prawf Blog, entering law teacher Kaimi Wegner argues that Rudenstine is wrong, by saying: “I'm going to teach my classes, go to conferences, write my articles. Hopefully I'll do well. In any case, the question of whether or not I believe in God is going to have as much relevance in my classroom discussions as the question of whether I cheer for the Yankees or the Red Sox. I'm not going to ask my students "do you believe in God?" on exams. I'm going to ask about law, and I'm going to teach about law. And hopefully, my students will do the same. It's not my job to quibble about theology with my students -- I'm there to teach them law, and they should be prepared to learn on the same terms.”

I hope that values inspired by faith are relevant to Prof. Wegner’s classroom discussions. The codes of ethics that have guided lawyers over the years have always recognized that lawyers need not limit their advice to their clients to technical legal issues. Model Rules of Professional Conduct 2.1 states: “In rendering advice, a lawyer may refer not only to law but to other considerations such as moral, economic, social and political factors, that may be relevant to the client's situation.” The values of faith might well have impelled a lawyer in 1950 to urge his or her client to consider the moral implications of operating segregated facilities. In subsequent decades, faith might have impelled a lawyer to suggest to a client that a plant closing has social as well as economic implications. Faith could encourage a lawyer to suggest to a client that anti-pollution efforts need not be limited to the minimum required by law. And all of these might in the long run also have led to very good business decisions.

Of course, not everyone agrees with this conception of religious faith. And the challenge to courts is how to deal with claims that a religion requires one to believe facts that contradict scientific or historical evidence. The first step is for courts to understand the nature of the problem.

Evolution-Sticker Briefs Available Online

Briefs in the Cobb County, Georgia evolution disclaimer-sticker case pending in the 11th Circuit Court of Appeals are available from the website of the National Center for Science Education. (See prior related post.) (Thanks to Dispatches From the Culture Wars blog for the lead.)

Gull Lake Rejects Intelligent Design In Science; OKs It For Social Studies

Some time ago, I posted information on the attempts by two 7th-grade teachers in the Gull Lake, Michigan school district to bring intelligent design into the classroom over the objection of school administrators. The Thomas More Law Center took up the teachers’ cause. Now Ed Brayton at his blog, Dispatches From the Culture Wars, reports that earlier this week, the Gull Lake school board refused the teachers’ request that they be allowed to continue teaching intelligent design. In doing so, the board followed the nearly unanimous recommendation of a special committee that studied the issue, of district science teachers and of the District Curriculum Council. The Board, however, accepted the special committee’s recommendation that Intelligent Design could be appropriately taught in a properly-approved high school level elective course in social studies, humanities, political science or philosophy. (Thanks to Logos blog for the lead.)

Is Running A Homeless Shelter A Religious Activity?

In South Bend, Indiana, the group Catholic Worker is raising an interesting question about the scope of the Religious Land Use and Institutionalized Persons Act. Section 2 of that statute protects against substantial zoning burdens on "religious exercise" unless there is a compelling governmental interest. The South Bend Tribune reports today that the religious group claims RLUIPA protection for its the operation of three overnight homeless shelters. It argues that they involve its "religious exercise". Margaret Pfeil, co-founder of the group, says: "I've come to think that this configuration of events is interfering with our ability to practice our religion. If I as a private resident want to practice works of mercy by sharing my home with people who are homeless, I ought to be able to do that."

Viet Nam Allegedly Hospitalizes Clergyman For Religious Beliefs

In a story reminiscent of Soviet practices 50 years ago, Christian Today now reports from Viet Nam that Rev. Than Van Truong of the Baptist General Conference has been unjustifiably held in a mental hospital because of his religious beliefs since September 2004. His troubles apparently began after he wrote several articles on religion and sent Bibles as gifts to Viet Nam's top government officials.

Mozambique Official Emphasizes Prohibition on Proselytization In Schools

The government of Mozambique has strongly condemned the distribution to children in public schools of Christian pamphlets titled "Livro da Vida" (Book of Life). All Africa reports today that Zefanias Muhate, Permanent Secretary in the Education Ministry, emphasized that distribution of religious propaganda in public schools violates the country's separation of religion and state.

Protestant Church Repressed In Uzbekistan

Forum 18 reports today on more problems for unregistered Protestant groups in Uzbekistan: "Nail Kalinkin of the embattled Bethany Protestant Church in the capital Tashkent was sentenced to 15 days in prison on 10 June for 'illegally' teaching his faith, while his wife Marina was fined.... After the church's Sunday service was raided by police on 12 June six more – including the pastor... – face administrative charges of breaking the country's religion law by leading an unregistered religious community. The church – located in a city district where mosques are also banned - has repeatedly tried but failed to register."

Kim To Be Appointed Civil Rights Division Head

Yesterday President Bush announced his intention to nominate Wan J. Kim to be Assistant Attorney General for Civil Rights at the Department of Justice. Mr. Kim currently serves as Deputy Assistant Attorney General in the Civil Rights Division. That Division, among other duties, handles cases involving religious discrimination.

The South Korean paper Chosun Ilbo reports that Kim will be the third Korean-American to be appointed to a sub-cabinet position in the Bush administration. According to the paper, earlier in his career Kim served as a trial attorney in the Justice Department's Terrorism and Violent Crime section where he handled the case against Oklahoma City bomber Timothy McVeigh.

Las Vegas School Dress Code Upheld Over Claim of Right to Wear Religious Symbols

Last week, the U.S. District Court in Nevada rejected a First Amendment challenge to the dress code imposed by Clark County Nevada at 25 of its schools. The suit was brought by the ACLU of Nevada on behalf of a student who was suspended for wearing shirts with religious symbols on them. According to the Las Vegas Sun yesterday, Judge Roger Hunt held that students had sufficient alternative means of communication available to them. He also struck down a provision that permitted principals to exempt students from the dress code on the basis of religious belief. The ACLU says it will appeal the ruling.

UPDATE: The full opinion is now available-- Jacobs v. Clark County Sch. Dist., 2005 U.S. Dist. LEXIS 11766 (USDC DNV, 6/10/2005).

FLDS Assets Placed Under Receiver; Paper Calls For Legalizing Polygamy

The Provo Daily Herald today reports that, at the request of Utah's Attorney General, a court has placed the assets of the Fundamentalist Church of Latter Day Saints (FLDS) under the control of an outside auditor. Attorney General Mark Shurtleff said this step was necessary to prevent FLDS leader Warren Jeffs from liquidating the assets of the religious sect. As described in earlier postings (1, 2, 3), FLDS is currently in the crosshairs of numerous enforcement officials because of its promotion of polygamy, as well as for alleged padding of public school payrolls and other financial irregularities.

In a surprising move, the Daily Herald suggests that the way to deal with the issue of polygamy is to legalize it, and instead concentrate on prosecuting related crimes such as domestic violence, child abuse, statutory rape and welfare fraud.

Controversy Over Religious Theme of County's "One Book" Program

"One Book" projects are reading programs designed to have everyone in a community read and discuss a single book. Usually they foster cooperation. But according to a report yesterday by the Associated Press, this year's Chester County, Pennsylvania program has stirred First Amendment controversy because of the religious themes of the featured book. The book chosen is Missing Heaven, which was self-published by Chester County author Caroline Wagner in 2003. The Freethought Society and the Anti-Defamation League have both questioned the appropriateness of the heavy focus on religion in the book and its accompanying discussion guide in a project being sponsored by a public library.

British Equality Bill Has Second Reading In House of Lords

Yesterday the Scotsman reported that in Britain's House of Lords, the second reading of the proposed Equality Bill (HL Bill 2) took place. The proposed law would create a single Commission for Equality and Human Rights to replace three separate commissions that now exist. It would also prohibit discrimination on the basis of religion or belief in the provision of goods, facilities, services or premises.

Prisoner's Claim For Access To Religious Books With Racist Themes Continues

In Borzych v. Frank, 2005 U.S. Dist. LEXIS 11486 (WD WI, 6/8/2005), the court allowed a prisoner's case alleging First Amendment infringements to proceed to trial, despite substantial doubts about the merits of the claim. Wisconsin prison officials denied plaintiff access to two allegedly religious books, "Temple of Wotan" and "Creed of Iron". In a case from a different correctional facility decided earlier this year, the same court found that the books present security risks by advocating the use of force to achieve racial purity and white supremacy. Nevertheless, plaintiff now may attempt to show that different considerations should apply in his maximum security facility where interaction between prisoners is limited.

Bush Welcomes Muslim Teens; Draws Christian Criticism

In the Rose Garden on Monday, President Bush spoke to a group of Muslim students from the Middle East who have been in the U.S. for 10 months in the Partnership for Learning Youth Exchange and Study Program. (transcript of remarks).

An article by Bill Wilson, Montana News Association Senior Analyst surprisingly takes the President to task for some of his remarks, including the following seemingly innocuous sentences: "You found out one of the great strengths of this country is the fact that people volunteer to make somebody else's life better. We all got hearts and care deeply about a neighbor in need, and there's a universal call in the Good Books throughout the world that says, love a neighbor like you'd like to be loved yourself."

Wilson says this is an example of Bush's toning down of "faith rhetoric" which leaves many "puzzled about what he actually does believe". Wilson complains, "The President omitted the source of a Biblical quote and degraded the Bible by including it with other 'good books'." He says, "The toning down of faith rhetoric, omitting Jesus Christ from Biblical quotes, and referencing God generically are not the fruits of a Christian walk."

Parochial Schools in Milwaukee Thrive Because of Vouchers

Yesterday I posted a story about the importance of voucher money to Catholic parochial schools in Washington, DC. A similar story can be told about Catholic and Lutheran schools in Milwaukee, according to yesterday's Milwaukee Journal Sentinel. 60% of students in grades 1-8 in Catholic schools, and 66% in Lutheran schools, in Milwaukee are on vouchers. Voucher payments now total $60 million per year. In addition to keeping Catholic and Lutheran schools afloat, the program has encouraged the creation of at least 20 new schools connected to African-American churches. Three Muslim and one Jewish school are also part of the voucher program. Despite this, the overall number of students in private schools in Milwaukee continues to drop.

Wicca In the Military

What is it like to be a Wiccan in the military stationed in Iraq? This week's Up & Coming Magazine carries a story from Fayetteville, Arkansas on the mixed experiences of military personnel.

WI Bill Would Expand Procedures That Health Care Workers Can Refuse

The movement toward permitting conscientious objection by health care professionals is expanding. Currently Wisconsin law permits health care professionals to refuse on moral or religious grounds to participate in abortions and sterilizations. The Associated Press reported yesterday that Assembly, the lower house of the Wisconsin legislature, has passed Assembly Bill 207 that would expand the list of procedures that health care workers could refuse to perform. Newly added are procedures such as removal of feeding tubes, stem-cell research and transplants using fetal tissue. The bill would also protect health care workers who refuse to refer patients elsewhere for these procedures. Previously the governor has said that he will not sign a bill that would prevent patients from obtaining health care.

Vouchers Have Revived DC Parochial Schools

In Washington, DC, a federal voucher program permits some children to use federal grants toward tuition at private secular or religious schools. While the impact of vouchers on student achievement in DC is not yet clear, the Washington Post reported on Monday that the program has been very beneficial for Catholic parochial schools. Enrollment in Catholic elementary schools has increased for the first time in thirty years, as the voucher program has given the schools almost 600 new students, and total revenue of over $3.5 million.

Politician Promises Liberia Will Be "Christian Nation"

It is not just politicians in the U.S. who sometimes talk about making their country a “Christian nation”. In Liberia, an African nation with historical ties to the United States, one of the candidates for president has made similar statements. Charles Brumskine promises that if elected he will declare Liberia to be a Christian state. An editorial in last Sunday’s Liberian Times condemns this proposal as religious extremism.

NY Village Sued By US For Prohibiting Religious Boarding Schools

Last Friday, the U.S. Attorney's Office in Manhattan (press release) filed a religious discrimination suit against officials of Airmont, New York, according to an article in today's Rockland Journal News. According to the federal government, the village bans boarding schools while it permits other group residential facilities. This prevents Hasidic Jews from establishing yeshivot (religious schools). The law suit alleges violations of the federal Fair Housing Act and the Religious Land Use and Institutionalized Persons Act. Ten years ago, the village lost a similar suit that challenged its restrictions on home synagogues being established. Airmont has already entered a settlement with one yeshiva that will permit it to build a dormitory and married student housing, but the settlement is being challenged in state court by other Airmont residents.

Swaziland Near Final Adoption of Constitution With Religious Freedoms Included

Today the Associated Press reports that the legislature in the African kingdom of Swaziland has approved the country's first constitution. The king must still give his approval. Section 24 of the new Constitution provides for freedom of thought, conscience or religion, including the right to worship alone or with a community; the right to change one's religion; and the protection of religious educational institutions. However it does permit reasonable governmental regulation, including protection against unsolicited proselytizing. The Constitution declares that official religion of Swaziland is Christianity, but that this shall not prevent the existence or practice of other religions (Section 4).

Britain May Permit More Flexible Civil Wedding Rites

As the world became aware with the recent marriage of Prince Charles to Camilla Parker Bowles, British law extensively regulates civil marriage ceremonies. An article in Monday's Guardian reports that the government may soon relax existing legal restrictions on the content of civil marriage rites. Currently any readings or music in a civil ceremony must be secular in nature. The British Office for National Statistics, which regulates both civil and religious wedding ceremonies, is about to propose a change that will permit civil ceremonies to use readings or songs that "contain an incidental reference to a god or deity in an essentially non-religious context".

OR House Moves To Exempt Churches From Zoning Regulation

On Monday, the Oregon House of Representatives passed H.B. 3474, according to a report in Monday’s Oregon Live. The bill broadly exempts religious organizations from land use restrictions. It would, however, still permit site and design review of building plans. Critics say the bill goes too far.

FLDS Head Indicted For Arranging Polygamous Marriage

In another legal step against the practice of polygamy advocated by the Fundamental Church of Jesus Christ of Latter Day Saints, the church's leader has been indicted in Arizona on charges that he arranged a marriage between a 16 year-old girl and a man who was already married. According to a report by the AP carried in today's New York Times, the Church's president was charged with sexual conduct with a minor and conspiracy to commit sexual conduct with a minor even though he did not have sex with the teenager. The religious group, which split from mainstream Mormons when they renounced polygamy, believes that the practice is required to reach the highest place in heaven. (See prior related postings 1, 2).

Vatican Urges Boycott Of Italian Referendum on Assisted Reproduction

In Italy, a 2-day referendum is being held today and tomorrow on proposed amendments to Italy's restrictive law on assisted procreation. The BBC reports today that Italian bishops, with the backing of Pope Benedict XVI, are encouraging Catholics to boycott the vote on moral grounds. Under the referendum ground rules, at least 50% of Italy's voters must cast a ballot for the vote to be effective. Leading Catholic politicians, including Italy's President Carlo Azeglio Ciampi, have defied the bishops' call and have already voted. Current law in Italy prohibits sperm or egg donations. It bans scientific research on embryos and embryo screening for birth defects. It also permits only three embryos to be created each time for in vitro fertilization, and requires that all three be implanted at the same time.

UPDATE: The Vatican was successful in its boycott campaign. The referendum failed after only 26% of the electorate turned out, according to the June 14 New York Times.

Groups File Amicus Brief In GA Evolution-Sticker Case

On Friday three organizations that support separation of church and state filed an amicus brief (full text) in the federal 11th Circuit Court of Appeals case of Cobb County School District v. Selman. The suit involves a challenge to the placing of anti-evolution disclaimer stickers on school textbooks. Releases by the American Jewish Committee and Americans United for Separation of Church and State announced the filing. Also signing the brief was the Anti-Defamation League.

The federal district court had found in its opinion that the stickers were unconstitutional because they had the effect of endorsing the beliefs of Christian fundamentalists. The amici challenge a different finding that the lower court made—that the stickers did not have a “religious purpose”. The lower court held: “by presenting evolution in a manner that is not unnecessarily hostile, the Sticker reduces offense to students and parents whose beliefs may conflict with the teaching of evolution.” The brief argues that placating constituents who have religious opposition to the teaching of evolution should be seen as a “religious” purpose.

Indiana Papers Defend ICLU

After a suit earlier this month by the Indiana Civil Liberties Union (ICLU) challenging overtly sectarian Christian prayers in the Indiana legislature (see prior posting), some papers in Indiana have published background articles emphasizing that the ICLU is neither anti-religious nor anti-Christian. Today the Evansville Courrier & Press carries an article titled State-Sanctioned Prayer Differs from Individual Free Speech. It quotes a Presbyterian minister who says "Christians ought to be courteous enough to respect other people's faiths." Last week, the Indianapolis Star carried a long article titled ICLU Leaders Balance Freedom and Faith. It points out that the ICLU legal director has a quotation from Isaiah on his office wall and its executive director sings in his church's gospel choir.

Jordan Seeking to Revamp Islamic Curriculum

In Jordan, educators are reviewing the current Islamic curriculum used in schools, according to today's New York Times. Part of a broader review of Jordan's education system undertaken with UNESCO, officials are attempting to foster more moderate expressions of Islam. Critics claim that the changes are being driven by American pressure, a charge which American officials deny. The most controversial part of the reassessment is how to deal with teaching about jihad.

Blog Discusses Religious Hiring By Recipients of Federal Funding

Over at Balkinization blog, Marty Lederman has posted an analysis of the ongoing dispute over government funding of social service organizations that hire on the basis of religious belief. It is an excellent source for links to arguments on all sides of the issue. A particular interest are his links to contrasting opinions of the Justice Department’s Office of Legal Counsel in the Clinton and Bush Administrations.

"Equitable Deviation" Applied To Permit Church Sale

Washington’s Supreme Court yesterday permitted a growing church to sell its current building and construct a new one nearby, despite a requirement in the original conveyance calling for its present location to remain for the “perpetual use” of the church. The majority in Niemann v. Vaughn Community Church held that the original conveyance created a charitable trust. Then they applied the doctrine of equitable deviation to amend the trust terms. Finding “that deviation is permissible when, due to circumstances unanticipated by the settlor, modification of an administrative requirement would advance the trust's purpose,” the Court permitted the Church to sell the building it had outgrown.

Justice Madsen, concurring in part and dissenting in part, argued that the majority’s approach unconstitutionally entangled the court with religious matters of the church. She argued that the property was not conveyed to the church subject to a trust. Instead the church should be seen as holding a fee simple interest that it was free to sell without restriction.

Kansas Board Committee Finishes Draft of New Science Standards

Last night, a 3-member subcommittee of the Kansas Board of Education completed a draft of new standards for the teaching of science in the state, according to a report in today's Topeka Capital-Journal. The standards question the theory of evolution, though as proposed they eliminate any specific mention of "intelligent design" theory. Specific examples of the criticism of evolution theory have been added to the standards. The full Board will consider the changes today. Opponents argue that many of the changes are misleading and would invite the teaching of supernatural or religious explanations in science courses.

Ministerial Exception Precludes Reverse Discrimination Suit Against Catholic Schools

Yesterday in Pardue v. Center City Consortium Schools of the Archdiocese of Washington, the District of Columbia Court of Appeals upheld the dismissal of a racial discrimination claim on First Amendment grounds. Plaintiff sued under the District of Columbia Human Rights Act alleging that the Center City Consortium of 8 inner-city Catholic elementary schools was intentionally replacing Caucasian principals with less-qualified African-American principals. Applying the "ministerial exception", the court held that the First Amendment bars the court from inquiring into the basis for a Church's action involving employees whose primary duties consist of teaching, spreading the faith, church governance, supervision of a religious order, or supervision or participation in religious ritual and worship.

Russia Considering Amendments To Religion Law

Forum 18 reports today that the Religion Committee of Russia's Parliament has begun to consider four important amendments to Russia's 1997 Religion Law. The amendments would give the government more discretion in evaluating registration applications by religious groups, and would require advance notice of religious activities planned outside of regular places of worship and certain other places. The proposals would also require any invitations to foreign religious workers to come from centralized religious organizations.

Britain Moves Ahead With Controversial Religious Hatred Proposal

The British government is moving ahead with its plans to enact a controversial Racial and Religious Hatred Bill according to a report in today's Times Online. The Home Office Minister today released the text of the bill which will prohibit incitement to religious hatred of any kind. Opponents claim that the proposed law will stifle free speech. Home Minister Goggins attempted to alleviate fears. He said: "It will not stop people ... from telling jokes. It does not stop people poking fun or causing offence. It is about stopping people from inciting hatred." The proposal is aimed primarily at protecting Muslims. Jews and Sikhs are already protected under existing legislation on inciting racial hatred. Others object that the bill will curb justifiable criticism of devil worshipers and cults. (See prior related posting.)

China Raids Unregistered House Churches

Boxun News reported today that Chinese officials are cracking down on unregistered Christian house churches. The churches attract university students, professors and young intellectuals. A church leader arrested on May 22 was charged with "using other means to instigate and disturb social stability".

Pryor Confirmation Expected Today Amid Concern Over His Positions on Religion

Today the Senate will vote on the confirmation of William H. Pryor, Jr. to the 11th Circuit Court of Appeals. As an article yesterday from the Knight Ridder Newspapers points out: “What distinguishes Pryor from Bush's other controversial judicial nominees is his place at the center of a political clash over the role of religion and faith in federal courts.” Liberal groups point to statements Pryor has made about restoring the place of Christianity in America. On the other hand, conservatives object to Pryor’s action as Alabama Attorney General in enforcing court orders against then-Chief Justice Roy Moore who attempted to place a large 10 commandments monument in the Alabama Supreme Court rotunda.

In fact Pryor already sits on the 11th Circuit temporarily under an unusual recess appointment that President Bush made last year. Since then, he has written at least one First Amendment religion opinion. In December 2004 in Benning v. Georgia, writing for a unanimous panel, he upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act against attacks under the Establishment Clause, the spending clause and the Tenth Amendment.

Nurse Claims Discrimination After Refusal To Dispense Morning-After Pill

The Associated Press today reports on another law suit over the right of medical personnel to refuse to dispense contraceptives. A former nurse has sued Eastern Illinois University claiming she was denied a promotion because she would not dispense morning-after pills. The nurse, represented by the American Center for Law and Justice, claims her religious freedom and equal protection rights and her rights under federal anti-discrimination laws were violated. The University said that its personnel decision was made for other reasons.

Saudis Release 7 Jailed Protestants

Saudi Arabia today released 7 Protestants (foreign workers from India) who had earlier been arrested for conducting prayer services in a private home. Most of the arrests took place on May 28, but one of the released religionists had been held since March. Daijiworld reports today that the jailed Christians signed a renunciation of religious practice as a condition of their release. Four of the individuals have been sent back to India.

Qatar Constitution To Be Promulgated Tomorrow

According to Al Jazeera, tomorrow the Persian Gulf nation of Qatar will for the first time in its history bring a Constitution into effect. The full text of the Constitution prohibits discrimination on grounds of sex, race, language or religion (Art. 35), and protects the freedom to practice religious rites for all persons "in accordance with the law and the requirements of the maintenance of public order and morality". (Art. 50). However the document (Art. 1) provides: "Qatar is an independent sovereign Arab State. Its religion is Islam and Shari'a law shall be a main source of its legislations."

WI Bill To Assure Access To Contraceptives Introduced

A previous posting reported on bills pending in the Wisconsin legislature to protect pharmacists who refuse on religious grounds to fill prescriptions for contraceptives (SB 155 .) Now those who support access to birth control have taken action. Today's Baraboo News Republic reports that Democratic lawmakers have just introduced a competing bill that would permit the state to punish any pharmacist who refuses to dispense legal forms of contraception.

New Article on Bepress

A new article of interest on church-state separation has been posted on Bepress:
Steven D. Smith, Justice Douglas, Justice O'Connor, and George Orwell: Does the Constitution Compel Us to Disown Our Past (June 2005).

Student Claims Religious Discrimination in College Grade

In a release yesterday, the American Center for Law and Justice explained a 12-page demand letter which it sent to California’s Victor Valley Community College on behalf of student Bethany Hauf. Hauf claims that her freedom of speech and religion were infringed by her English 101 instructor. The adjunct instructor, Michael Shefchik, approved as Hauf’s topic for a research paper, “Religion and Its Place Within Government”. However he stipulated that the topic must be treated objectively, and added: “I have one limiting factor – no mention of big “G” gods, i.e., one, true god argumentation.” Shefchik, an atheist, said that the reason for this limitation was that references to God could be offensive. Shefchik gave Ms. Hauf a low grade on her paper, claiming that she had written “off topic”. ACLJ argues that the grade was a result of unconstitutional viewpoint discrimination against Hauf’s religious beliefs. It demands that Hauf’s grade be corrected and that her instructor apologize for his actions.

Transcript of FL School Voucher Arguments Is Online

The transcript of today's oral argument before the Florida Supreme Court in Bush v. Holmes is available online. The case involves a constitutional challenge under the state and federal constitutions to Florida's state-wide Opportunity Scholarship Program. Under the program, funds are available to students attending religious schools, as well as secular institutions. (See prior posting. )

This Week's New Law Review Articles on Church-State Issues

This week's SmartCILP lists 3 new articles of interest on church-state issues:

Cece Cox, To Have and To Hold--or Not: The Influence of the Christian Right on Gay Marriage Laws in the Netherlands, Canada, and the United States, 14 Tulane Jour. of Law & Sexuality 1-50 (2005).

Steven K. Green, Locke v. Davey and the Limits to Neutrality Theory, 77 Temple L. Rev. 913-955 (2004).

C.M.A. Mc Cauliff, Distant Mirror or Preview of Our Future: Does Locke v. Davey Prevent American Use of Creative English Financing for Religious Schools?, 29 Vermont L. Rev. 365-406 (2005).

South African Teacher Claims Religion Calls For Corporal Punishment

In South Africa, a teacher has taken a religious liberty claim to court. Cape Argus reports today on an elementary school teacher who claims that corporal punishment of children is ordained by God. Fired for improperly administering corporal punishment, the teacher has sued in an Equality Court claiming that the Education Department is discriminating against his living out his Christian faith.

UPDATE: The court has rejected the teacher's claim according to a June 13 story from the South African Press Assoc.

Poll: 37% In US Think Clergy Should Influence Government Policy

The Associated Press reported today on a recent poll asking individuals in 10 countries whether or not religious leaders should try to influence government decisions. The United States had the highest number-- 37%-- who thought they should. France had the lowest, only 12% thinking they should. The full poll results are available online.

Follow-Up on Texas Bill-Signing At Religious School

The New York Times reports this morning on Texas Governor Rick Perry's signing of abortion and gay marriage legislation at an evangelical school. (See prior posting.) Held in the school's gymnasium, separate from the church sanctuary, the event included a number of speakers and a closing benediction by a Messianic Jewish clergyman. In his remarks, Gov. Perry said: "I'm confused where God is: He's everywhere. If we did this in a parking lot of Wal-Mart, God would be there."

Ohio Secretary of State In Ads for Religious Group

The blog Mainstream Baptist reported last week that Ohio Secretary of State (and gubenatorial hopeful) Kenneth Blackwell is being featured in 30-second radio ads endorsing the Ohio Restoration Project. The Project, led by fundamentalist Christians, is attempting to recruit 2000 "Patriot Pastors" around the state to work on behalf of specific issues and furnish voter guides to their church members. The ads featuring Blackwell will be promoting the "Ohio For Jesus" rally set for the Spring of 2006.

Voucher Case To Be Before FL Supreme Court This Week

This week the Florida Supreme Court will hear arguments in a major case challenging Governor Jeb Bush's school voucher program, according to a report in today's South Florida Sun-Sentinel. The statewide program that permits vouchers to be used for religious schools as well as others has been in litigation for six years. The case involves a challenge to the vouchers both under the Florida constitution and the First Amendment to the U.S. Constitution.

Italian Justice Minister Claims Burka Is Illegal

The Australian Daily Telegraph reports today that Italy's Justice Minister has said that he will seek fines against Muslim women wearing Burkas. He argues that Italy's law that prohibits going around in public with one's face covered is violated by the practice of wearing these robes that cover women entirely. Opposition politicians have demanded his resignation over the remarks.

Chabad Successfully Challenges Application of Zoning Law

On June 3 the U.S. Eleventh Circuit Court of Appeals in Konikov v. Orange County ruled in favor of a Chabad Rabbi who had been charged with violating the Orange County Florida zoning code. The Rabbi, head of Chabad of South Orlando, was charged with operating a “religious organization” in a residential district without obtaining a special exception from the County Board of Zoning Adjustment.

While rejecting the Rabbi’s facial challenge to the zoning ordinance, the Court accepted his argument that, as applied, he was not being treated on an equal basis with non-religious organizations in violation of Sec. 2(b) of the Religious Land Use and Institutionalized Persons Act. Non-religious social groups could meet two to three times per week at a home without a special exception; but a permit was required when a religious organization did the same thing. The Court also accepted the Rabbi’s due process challenge to the zoning ordinance. It did not define “religious organization.” Also there was a risk of discriminatory enforcement because too much discretion was delegated to enforcement officials to determine how many meetings in a home would constitute a code violation.

2 New Prisoner Religion Cases From Wisconsin

Two prisoner religion case were decided by the federal district court for the Western District of Wisconsin on May 26:

In Meyer v. Farrey, a prisoner claimed that for 3 months he was unable to attend Native American religious activities because his name had been left off the prison’s religious services list. The Court held that if the omission was merely because of negligence, he has no First Amendment claim. It also dismissed three of the defendants from the suit, finding that there is absolute immunity for persons who merely make recommendations for the disposition of inmate complaints.

In Henderson v. Berge, the court rejected a prisoner’s complaint that the cable television package to which the prison subscribed included the Judeo-Christian oriented Sky Angel Trinity television channel, but not channels devoted to other religious beliefs. The court found no Establishment Clause violation.

Article on Religious Discrimination in Employment

A primer on the law of religious discrimination in employment appears in today's Mondaq's Article Service. The article is Employment Law Commentary-- May 2005, by Cynthia L. Gillette.

Bill Signing At TX Parochial School Questioned

Texas Governor Rick Perry has scheduled a controversial signing ceremony for a bill that requires minors to obtain parental consent (or a court order) before having an abortion (S.B. 419). The signing will take place at the parochial school connected to Fort Worth's Calvary Cathedral. He will also use the ceremony to sign an anti-gay marriage proposal (H.J.R. 6) that will be on the ballot in Texas in November. According to a report in today's Fort Worth Star-Telegram, Texas Democrats supported by Americans United for Separation of Church and State have objected, arguing that the signing is being used as a campaign event for the governor. This, they say, puts the tax exempt status of the church and the school into question.

Ministers Defy City Council's Invocation Guidelines

Escondido, California city council has guidelines for the invocations that are given by clergy at Council sessions. In compliance with a 2002 state appellate court decision, council requires that the prayers not reflect specific religious traditions, though they can make generic references to God. The San Diego Union-Tribune reports today that clergy have been intentionally defying the guidelines. The most recent offender, Pastor Vincent Xavier, said: "It would be impossible for me to project what I believe is a very truthful prayer without invoking the name of Jesus Christ."

Minister Fired For Being Gay May Proceed With CA Defamation Claim

Last week, a California appellate court, in a sharply divided decision, permitted the worship director of a church, who had been fired after discovery of his homosexuality, to proceed with his defamation and invasion of privacy claims against the church, its pastors and board of elders. At issue in the case, Gunn v. Mariners Church, Inc., was the application of the First-Amendment based “ministerial exemption” that shields the choice and dismissal of clergy from judicial review. In announcing the reasons for Gunn’s dismissal to the congregation, defendants not only said that Gunn had engaged in sinful conduct, but also that he had been asked 40 or 50 times if he were gay and that he had lied in denying it. Gunn claimed that his dismissal was motivated by homophobia, not by church doctrine.

The court held that the First Amendment precludes it from investigating whether or not church doctrine condemns homosexuality as a sin. However, the statement that Gunn had been questioned about his homosexuality and lied does not involve religious doctrine, and the pleadings did not show that disclosing this to the church congregation was part of defendants’ ecclesiastical duties.

Judge Sills filed a lengthy and colorful dissent, arguing that this is really a suit about the theology of the Mariners Church. Here is a sample of Judge Sills rhetoric:

“If the church and its elders contradict the complaint and aver that their religious beliefs and doctrine are "homophobic," plaintiff will publicly denounce his former ecclesiastical employers as a bunch of ignorant bible-thumping knuckle-dragging pitchfork toting rednecks, masquerading as a tolerant church. Or, if they take the bait and "admit" that their doctrine is not "homophobic," the plaintiff will be able to rake them over the scriptural coals by forcing them to distance themselves from various texts in Leviticus, or Romans or whatever, and force them to defend the merits of the fine nuances of their theology as he presses the point that, yes, they really are "homophobic." If the latter happens, further proceedings will turn this case into a theological circus that will make the Scopes Trial look like a boring treatise on insurance law.”

Utah To Be Next Evolution Battleground

Utah promises to be the next battleground in the debate over teaching of alternatives to evolution. The Salt Lake Tribune today reports that State Senator Chris Buttars, supported by the Eagle Forum, will lead a fight in the next legislative session to have schools teach "Divine Design". According to Buttars: ''The divine design is a counter to the kids' belief that we all come from monkeys. Because we didn't. It shocks me that our schools are teaching evolution as fact."

MA City Trying To Skirt Religious Discrimination in Housing Prohibitions

The Brookline, Massachusetts Tab today discusses the complex legal questions posed by arrangements that are being made to redevelop a Catholic Church site into affordable housing. Funds for the new housing are coming from the federal government through HUD, from the city of Brookline, and from private sources. The Catholic archdiocese wants to reserve 3 of the 50 housing units for Catholic parishioners of St. Mary's church.

Federal law, 42 USC Sec. 5309, prohibits religious discrimination in housing that is funded in whole or part with federal Community Development funds. In order to skirt that requirement, the diocese Planning Office for Urban Affairs will develop the 3 units with totally private funds. Government funds will be used for the other 47 units.

If no federal funds are used, there is an exemption under the broader federal Fair Housing Act, for a religious organization that limits the sale of housing to person of the same religion (42 USC Sec. 3607). HUD however is looking into whether occupants of the 3 privately developed units will be benefiting from federal funds spent for overall plumbing and common hallways.

First Amendment Bars Damage Claim From Counseling Disaster

In Rose v. Washington Conf. of Seventh Day Adventists, decided Tuesday by a Washington state Court of Appeals, damage claims against a Pastor and the Seventh Day Adventist Church were dismissed on First Amendment grounds. The suit grew out of a lurid series of events. Gerald Rose’s wife, Theresa, who suffered serious mental problems, was in spiritual counseling for four years with Pastor Terry Campbell. Apparently the Pastor demonized Gerald and convinced Theresa that their marriage was irretrievably damaged. This led to Theresa hiring her daughter’s boyfriend to murder Gerald. In the end, the plan to kill Gerald failed, and Theresa’s daughter ended up murdered.

After Theresa was convicted criminally, Gerald sued the pastor and the Church. On appeal, the Court faced two issues. (1) Did Pastor Campbell breach a fiduciary duty to warn Gerald of a foreseeable danger that Theresa would kill him? (2) Was the Church liable for negligently supervising and retaining Campbell?

The Court found that personal counseling between a pastor and parishioners is a central tenet of the Seventh-Day Adventist faith. Physical and mental illness are seen as a by-product of sin. The Court held that since it would have to choose between competing interpretations of Church doctrine to determine if Campbell’s counseling gave rise to a special relationship and to a duty to warn, that inquiry would violate the First Amendment. Similarly, the claim against the Church for negligent supervision would require the interpretation of religious doctrine. It could not be determined through the use of neutral principles. So it too was barred by the First Amendment.

First Interpretation of PA Religious Freedom Protection Act

A press release yesterday by the ACLU of Pennsylvania reported that in the first ruling to interpret Pennsylvania's Religious Freedom Protection Act, a common pleas court issued a preliminary injunction permitting a Muslim firefighter to return to his job without shaving his beard. Fire department regulations were aimed at assuring that firefighters could use respirators effectively, but the ACLU said that new technology masks will alleviate the problem.

Debate Over Teaching Jihad In Kuwati Schools

The Middle East Media Research Institute today released an extensive report on the debate over curricular reform in the schools of Kuwait. MEMRI says that the controversy centers on the extent to which jihad should be part of the school curriculum, and whether teaching it contributes to extremism. The Education Ministry denies that the present curriculum has extremist content, but has created a new committee to examine the issue.

New Analysis of Cutter Case

An extensive analysis of Tuesday's US Supreme Court decision in Cutter v. Wilkinson by Cardozo Law Professor Marci Hamilton appears in Findlaw's Legal Commentary today. The case upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act as it applies to prisons.

House Committees Reject Pressuring AF Academy on Discrimination

After weeks of reports about religious harassment of non-Christian cadets at the U.S. Air Force Academy (see prior postings 1, 2, 3, 4), attempts by New York Rep. Steve Israel to get Congress to require the Academy to submit a plan to assure religious toleration have been defeated in committee. The Forward reports in its edition dated June 3 that proposed amendments to the National Defense Authorization Act were voted down at a May 23 vote of the House Rules Committee. Backers of the amendments were troubled by statements at a May 18 Armed Services Committee hearing at which some representatives suggested that the real problem was "political correctness" interfering with rights of Christians. North Carolina Representative Walter Jones said that some evangelical Christians feel they are not being promoted because of their faith and Christian chaplains are not being permitted to conduct prayers referring to Jesus.

IN Suit Challenges Sectarian Legislative Opening Prayers

The Indiana Civil Liberties Union yesterday filed suit in federal district court to stop the Indiana House of Representatives from opening its sessions with sectarian or proselytizing prayers. According to a report in today's Fort Wayne Journal-Gazette, invited clergy often emphasize Jesus in their invocations. In one session, the invited minister led the chamber in the singing of "Just a Little Talk With Jesus". Members clapped, sang along, and gave the minister a standing ovation. The law suit does not seek to totally stop opening prayers in the legislative chamber, but asks that they be delivered in a non-sectarian manner. The press release by the ICLU announcing the suit states that it is brought on behalf of a retired Methodist minister, a lobbyist for a statewide Quaker group and two Roman Catholic citizens.

Religious Differences Bridged In Sudan Constitution Drafting

The Constitutional Commission drafting an interim constitution for embattled Sudan has come up with a very lawyerly solution to a religious conflict over the document. Reuters South Africa reports today that a different Preamble will appear in the Constitution for the Islamic north of Sudan than for the non-Islamic south. The Preamble used in the north will begin with the traditional phrase: "In the name of God the Gracious the Most Merciful". This will be omitted from the version used in the south.

Nigerian City Set To Impose More Sharia Restrictions on Taxi Drivers

In Kano, Nigeria, motorcycle taxi drivers are about to lose substantial amounts of business if a new traffic law is enforced, according to a report in today's South African Mail & Guardian. The governor of Kano, who was elected on a platform of enforcing a stricter version of Sharia, is about to ban any male moped driver from carrying female passengers other than his wife or close relatives. Women riding on mopeds come into physical contact with the driver, in violation of Islamic law. The government has purchased 100 busses and 500 motorized tricycles to transport women so that they can be transported without touching the male driver. Tuesday's ceremony to initiate the new policy was postponed, although differing reasons for the postponement were offered. Some support the new policy on safety grounds, but current taxi drivers object strongly to it.

More on Cutter v. Wilkinson

Today's press release from the Beckett Fund on the Supreme Court's decision in Cutter v. Wilkinson does a good job of emphasizing the primary area in which the Supreme Court's approach differed from that of the Court of Appeals whose decision was reversed:

"The Court squarely rejected the core argument of the court below (and of RLUIPA's detractors) that religious accommodation laws that accommodate only religion violate the Establishment Clause of the First Amendment, because they impermissibly favor the religious over the secular. As the Court explained, "Were the Court of Appeals' view the correct reading of our decisions, all manner of religious accommodations would fall."

"There's a strong argument to be made that the anti-accommodation reading of the Establishment Clause has been dead for a long time, but today's unanimous decision removes any lingering doubt,” said Anthony Picarello, President and General Counsel for the Becket Fund. "Cutter is a win for religious exercise in prison, but more importantly, it is a thumping victory for religion-only accommodations nationwide.”

UPDATE: There is also an excellent discussion of the Cutter case on today's SCOTUSblog.

We May See RLUIPA In the Courts Again

The last time the U.S. Supreme Court examined a statute similar to the Religious Land Use and Institutionalized Persons Act (that it upheld today) was in 1997 in City of Boerne v. Flores. There the Court found that the broader Religious Freedom Restoration Act exceeded Congress' legislative powers. Congress had relied on Section 5 of the 14th Amendment in enacting that law.

RLUIPA is narrower, and relies on Congress' commerce and spending powers. The prisoner provisions in Sec. 3 are limited:
"(b) SCOPE OF APPLICATION- This section applies in any case in which--
(1) the substantial burden is imposed in a program or activity that receives Federal financial assistance; or
(2) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes. "

Here is what Justice Ginsberg had to say in footnote 7 about the federalism issues in today's case, Cutter v. Wilkinson:

"Respondents argued below that RLUIPA exceeds Congress' legislative powers under the Spending and Commerce Clauses and violates the Tenth Amendment. The District Court rejected respondents' challenges under the Spending Clause... and the Tenth Amendment..., and declined to reach the Commerce Clause question.... The Sixth Circuit, having determined that RLUIPA violates the Establishment Clause, did not rule on respondents' further arguments.... Respondents renew those arguments in this Court. They also augment their federalism-based or residual-powers contentions by asserting that, in the space between the Free Exercise and Establishment Clauses, the States' choices are not subject to congressional oversight.... Because these defensive pleas were not addressed by the Court of Appeals, and mindful that we are a court of review, not of first view, we do not consider them here.... But cf. post, at 1-2, n. 2 (THOMAS, J., concurring)."

So there may still be another round in the battle over RLUIPA.

Supreme Court Unanimously Upholds RLUIPA in Cutter v. Wilkinson

The US Supreme Court this morning in Cutter v. Wilkinson unanimously upheld the Religious Land Use and Institutionalized Persons Act against a challenge to its constitutionality. The case involved a facial challenge to the Act's application to prisons. Justice Ginsburg's opinion for the Court is available online. So is Justice Thomas' concurring opinion. Here are excerpts from the Court's syllabus (omissions of text are not indicated):

Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), provides in part: "No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution," unless the burden furthers "a compelling governmental interest," and does so by "the least restrictive means."

Section 3 of RLUIPA, on its face, qualifies as a permissible accommodation that is not barred by the Establishment Clause. (a) Foremost, § 3 is compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise. Furthermore, the Act on its face does not founder on shoals the Court's prior decisions have identified: Properly applying RLUIPA, courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries, and they must be satisfied that the Act's prescriptions are and will be administered neutrally among different faiths.

Section 3 covers state-run institutions -- mental hospitals, prisons, and the like -- in which the government exerts a degree of control unparalleled in civilian society and severely disabling to private religious exercise. RLUIPA thus protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion. But the Act does not elevate accommodation of religious observances over an institution's need to maintain order and safety. An accommodation must be measured so that it does not override other significant interests. There is no reason to believe that RLUIPA would not be applied in an appropriately balanced way, with particular sensitivity to security concerns.

While the Act adopts a "compelling interest" standard, "context matters" in the application of that standard. Lawmakers supporting RLUIPA were mindful of the urgency of discipline, order, safety, and security in penal institutions and anticipated that courts would apply the Act's standard with due deference to prison administrators' experience and expertise.

Finally, RLUIPA does not differentiate among bona fide faiths. It confers no privileged status on any particular religious sect.

In upholding § 3, the Court emphasizes that respondents have raised a facial challenge and have not contended that applying RLUIPA would produce unconstitutional results in any specific case. There is no reason to anticipate that abusive prisoner litigation will overburden state and local institutions. However, should inmate requests for religious accommodations become excessive, impose unjustified burdens on other institutionalized persons, or jeopardize an institution's effective functioning, the facility would be free to resist the imposition. In that event, adjudication in as-applied challenges would be in order.

Judge Offers Church Attendance As Alternative Sentence

A judge in Laurel County, Kentucky offers some defendants the option of attending church services instead of going to jail or rehabilitation, the Louisville Courrier-Journal reports today. The judge, a devout Christian, has offered the choice about 50 times to repeat drug and alcohol offenders. They may select any religious denomination The judge says that the alternative poses no constitutional problems because it is not mandatory. Other lawyers disagree.

Challenge to California Missions Act Pending

In 2004, Congress passed the California Missions Act authorizing the spending of $10 million in federal funds to preserve 21 Spanish-era missions that are in disrepair. The funds are to be matched by private contributions. Today's Contra Costa Times reports on a taxpayer challenge to the constitutionality of that act filed in December 2004 by Americans United for Separation of Church and State. AU's director, Rev. Barry Lynn, argues that if the Establishment Clause means that the government cannot build churches, it also means that it cannot spend funds to repair them. He also objects to use of some of the funds to preserve religious art and artifacts in the missions. Many others, however, argue that preservation of these kinds of historical buildings with government funds creates no Constitutional problem, especially since very little religious connotation remains associated with these historical sites.

Another View of the Van Orden Case

The San Antonio Express-News today carries an article on Van Orden v. Perry, one of the pending US Supreme Court Ten Commandments cases. The reporter offers an interesting perspective from the Texas state house. I mention the article because the reporter spoke with me at length in preparing it and quotes me, but without the nuance that I hoped I had communicated. As reported, I predicted that the Texas display would be upheld, partly because of the Justices concern about forcing bulldozers to tear down these displays around the country. But I also emphasized the peculiar history of the monuments that were furnished by the Fraternal Order of Eagles. Similarly, though not in the article, I predicted that the Kentucky display in the companion case before the Court would be struck down because of its different history. By the way, my record on accurately predicting Supreme Court results is not good.

Op Ed On Negative Impact of Protecting Religious Practice

Writing in Sunday's Observer, Nick Cohen has a provocative op ed criticizing the trend in both the United States and Europe to protect religious practice and belief through workplace religious freedom laws and blasphemy statutes. He argues that the price of these laws are unacceptable limitations on the freedoms of others in society. Says Cohen of fundamentalist religious believers: "Their life and faith must be one and no compromises can be made. In the past, most people who lived outside theocracies either compromised or withdrew into communities where they found sanctuary from the profane by living and working with co-believers."

President Bush At Arlington Memorial Day Ceremony

As reported by Fox News, President Bush spoke today in a Memorial Day ceremony at Arlington National Cemetery. A transcript of his remarks was released by the White House. Religious references were almost entirely absent from the message he delivered before placing a wreath at the Tomb of the Unknown Soldiers. He mentioned "God" three times, all in contexts which seem to clearly qualify for the "ceremonial Deism" label.

New Church-State Book Due in July

New York University Professor Noah Feldman's new book, "Divided By God-- America's Church-State Problem and What We Should Do About It" is scheduled for publication on July 6. Publisher's Weekly reports that Farrar, Straus & Giroux advanced the publication date to coincide with the expected Supreme Court ruling on public display of the Ten Commandments.

Commentary: Our National Motto and the Over-Reading of Precedent

In the past the Supreme Court has upheld the placing of our national motto “In God We Trust” on coins. Dicta in Lynch v. Donnelly is often pointed to. Justice O’Connor justified the practice because the history and ubiquity of the motto on our coins means that its use there is not understood as a government endorsement of religion. Justice Brennan described the motto as “ceremonial Deism”, words that through their rote repetition have lost any significant religious content. However today this precedent is often being over-read.

I would suggest that the Supreme Court’s language does not give the government totally free rein to use the words of the motto when the intent and effect is to in fact promote religion. (see related posting) This idea was driven home by an obscure story in yesterday’s Anderson SC Independent-Mail. It reported that in two neighboring Georgia counties, “In God We Trust” will soon be hanging in school classrooms. The Hebron Baptist Association bought over 500 copies of the motto and gave them to school districts. The superintendent in one of the districts said that she is “glad this is something that the school system can do.”

This is not a new idea. Some time ago, the American Family Association began a national campaign to get the national motto hung in every school classroom in the country. It said it would be “a reminder of the historic centrality of God in the life of our republic”. A number of states have enacted laws specifically permitting the posting of the motto in classrooms. In this context, the motto does not seem to have lost religious content. If it had, why would churches be so intent on funding its posting? In today’s context, the posting of these words is decidedly seen as an endorsement of religion. Holdings, not to mention dicta, in opinions need to be read contextually, and not latched onto with strict literalism as a pretext to violate the spirit of the Constitution’s Establishment Clause.

Flags of Christian Churches Advocated to Oppose Confederate Flag

Yesterday’s Galax Virginia Gazette reports the latest installment in the battle of flags. In April, Carroll County supervisors accepted funds from the Jubal Early Sons of Confederate Veterans Camp 1691 to erect a new flagpole on the courthouse lawn. It is to be used to fly flags honoring veterans of all wars from Carroll County, including those from the Civil War. This means that the Confederate flag will sometimes fly there. Many residents have objected to that. One opponent, Gary Marshall, director of the Bethesda Heritage Trust, has now requested that yet a third flagpole be set up for him to use to fly historic Christian flags of various denominations. He says that these are also part of the county’s history. [Thanks to Becky Dale on Religionlaw listserv for this information.]

Commentary: What "God-Talk" Is Permissible At School Graduations?

With graduation season upon us, a story today from Agape Press reminds us of the continuing ambiguities in the rules regarding what may be said at public school graduation ceremonies. Thirteen years ago in Lee v. Weisman, the Supreme Court struck down on Establishment Clause grounds a prayer by an invited clergyman at a graduation ceremony. The Court's holding was based both on the school's involvement in inviting the clergyman, and on the peer pressure placed on students attending graduation to show their support for the content of the prayer by standing or remaining respectfully silent.

Now, in a Wisconsin high school, the class valedictorian included the following in her talk: "There is Someone Who can make the journey seem a lot easier. His name is the Lord Jesus Christ. He is the ultimate source of success, love, laughter, dreams and the future. He is the Creator of the universe who longs to have a relationship with you." School officials required students to submit their speeches in advance. When this student did, the school told her to delete references to religion, God or Jesus. However, acting on the student's behalf, Liberty Counsel convinced school authorities that their action amounted to unconstitutional censorship, and that neutrality required the school to permit the student to share her gratitude to God with other students and family members.

I am not sure that is correct. The student prayer here was far more sectarian than the rather neutral one at issue in Lee v. Weisman. Students in the audience feel equal peer pressure to sit silently and accept the prayer. School officials have control over the content of student speeches-- they require them to be submitted in advance. Just as the clergyman was invited to speak in Lee, the valedictorian was invited to speak here by the school. Nothing requires a school to have a speech by the valedictorian at graduation, just as nothing requires it to have an invocation. Perhaps schools are merely responding to whichever lawyers lay siege to them first.

How Can Muslim Airport Cabbies Pray?

The question of when government must make exceptions to neutral generally applicable regulations in order to accommodate religious practice arose anew this week at the Cleveland, Ohio airport. The Associated Press reported yesterday on the problem faced by Somali immigrants who drive cabs and wish to carry out their duties to pray 5 times daily. Often prayer time comes while their cabs are in line at the airport terminal. When that happens, the cabbie must go into the airport rest room to wash, and must then pray standing and kneeling on the ground facing Mecca. Doing this runs afoul of airport regulations that prohibit leaving cabs unattended within 300 feet of the terminal. USA Taxi Company says that a third of its drivers have quit after receiving $150 tickets (plus $69 court costs). Police say that they are just enforcing a general rule that furthers safety and security, without regard to the offender's cultural background.

New Case: Workers Comp When Hajj Interferes With Employment

Over the years, the US Supreme Court has upheld the rights of employees to receive workers compensation even though they refuse new employment, if the refusal was for religious reasons. Yesterday, a Wisconsin Court of Appeals decided Rashad v. Labor & Indus. Review Commn., a case of this sort with a new twist. Rashad, a college instructor, refused a Spring Semester position because it would interfere with her making the Hajj (pilgrimage to Mecca).

The WI Workers Compensation Statute (Sec. 108.04(8)) permits applicants to refuse work for "good cause". The Labor Commission however had held that there was not good cause here because Rashad was not obligated to make the Hajj in any particular year. Rashad disagreed, arguing that she was required to make the pilgrimage at the first opportunity, and that this was the first time that she was financially able to do so.

The Court of Appeals held that there was no evidence in the record to support the state board's apparent finding that there was not a religious necessity that the pilgrimage be made in one particular year. The court remanded for further factual findings and for consideration of the constitutional issues that are involved if workers compensation is denied.

Wisconsin Will Liberalize Restrictions on Prison Visitors

Wisconsin has responded quickly to a suit filed by a Muslim woman who was forced to remove her headscarf (hijab) in order to visit an inmate in a Wisconsin prison. (See prior posting). The Baraboo News Republic reports today that one day after the suit was filed, the Department of Corrections has decided to change its policy. The Wisconsin Secretary of Corrections said it was never their intent to discriminate against someone because of religious beliefs when this security measure designed to prevent the hiding of contraband was put into place. Originally the woman visitor had offered to permit a female guard to search her headscarf, but this alternative was refused.

Constitutionality of "Charitable Choice"-- Part 3

Today Findlaw carries the third in a series of articles by Vikram Amar and Alan Brownstein on the constitutionality of the "Charitable Choice" bill (H.R. 27) that was recently passed by the House of Representatives. (see prior postings on Part 1 and 2 ). They argue that discrimination on the basis of religion in staffing government funded programs is fundamentally different than discrimination by secular organizations that hire only individuals who share their ideological beliefs.

Quebec Rejects Islamic Family Law Tribunals

The National Assembly of Quebec voted unanimously today to reject any establishment of Islamic tribunals in Quebec. (Official Transcript of today's session). According to a report in Macleans, this vote was intended to pre-empt a growing movement in Canada to have Sharia applied by religious tribunals in Muslim family law matters. A debate over the use of such tribunals has been going on in Ontario.

Court Upholds Government Funds To YMCA

In Conley v. Jackson Twp. Trustees, 2005 U.S. Dist. LEXIS 9860 (N.D. Ohio, 4/14/2005), which became available today, a U.S. District Court rejected an Establishment Clause challenge to government funding of a local YMCA. Jackson Township, Ohio gave the YMCA annual grants, office space and it allocated $1 million toward the Y's new building. The court held that the YMCA is not a pervasively sectarian institution and that there is no evidence that the government aid funds specifically religious activities of the organization.

Florida Schools Assign Genesis

Courts have permitted schools to teach the Bible as literature. The South Florida Sun-Sentinel reports today that two high schools in Boca Raton, Florida have assigned the book of Genesis (or parts of it) to all 11th-graders as summer reading. The assignment is supposed to prepare students for allusions in much of the American literature that they will study next year. Students in Advanced Placement and Honors classes have other reading assignments over the summer as well. For students in regular English courses, their only assignment is from Genesis. Some parents question whether the assignment violates principles of separation of church and state. School officials say that they will offer alternative assignments where parents object to the reading. They also say that students who do not own a Bible can read the assignment on the Web.

Religious Affirmative Action in Indian University

A debate is raging in India on religious affirmative action in universities. Aligarh Muslim University has reserved 50% of its seats for Muslims in 43 of its 289 courses. The controversial move is supported by the Indian government. Yesterday the University's vice chancellor defended the legality of the program under Article 30 of the Indian Constitution that protects minority educational institutions, according to a report in the Deccan Herald. Today, the Students Islamic Organization of India gave a more detailed legal defense of the policy according to a report in the New India Press.

Wisconsin Prison Sued Over Treatment of Muslim Visitor

In Wisconsin, a Muslim woman, Cynthia Rhouni, is suing prison authorities. Male prison guards at a Wisconsin maximum security facility required her to remove her headscarf (hijab) before she was permitted to visit her estranged husband who was being held in the prison facility. New York Newsday reported yesterday on the suit which charges a violation of Rhouni's constitutional right to free exercise of religion. She is being represented by the Wisconsin Civil Liberties Union. The full complaint describes at length the circumstances of Rhouni's prison visit and the impact of the events upon her.

Indiana Appeal of Order Prohibiting Raising of Child as Wiccan

In Indianapolis, Indiana, an unusual joint custody decree is being appealed. In granting a divorce to a couple, both of whom are Wiccans, a judge prohibited either parent from exposing their child to "non-mainstream religious beliefs and rituals". The Indy Star reports today that even though both parents objected to the order, the court entered it after reading the report of the Domestic Relations Counseling Bureau. Represented by the Indiana Civil Liberties Union, the father, who has organized Pagan Pride Day in Indianapolis, is asking the state court of appeals to strike the provision in the divorce decree. He claims that it infringes on the parents' right to control the religious education of their child. Unlike more typical divorce cases in which parents disagree about the religious training of their child, here the order was issued without either parent requesting it.

In Scotland-- Religious Discrimination Suit Against Catholic School

The Scottish press today is reporting on a discrimination case against a Catholic high school under way in an Employment Tribunal in Glasgow. Suing under a 2003 law that bans religious discrimination, a math teacher is protesting the school's refusal to consider him for a position as principal teacher of pastoral care because he is an atheist. Apparently Catholics who send their own children to non-religious schools and Catholics who are divorced and remarried are also denied approval for these kinds of positions in the school.

Viet Nam Continues to Persecute Protestants

Despite a suggestion at the beginning of this month that Viet Nam was liberalizing its treatment of Protestant groups (see prior posting), Radio Free Asia today carried a long report from three provinces on harassment and beatings of Protestants as well as attempts to force them to renounce their beliefs. Viet Nam remains listed by the United States as a "country of particular concern" on issues of religious freedom (see prior posting).

UPDATE 5/26/05: Vietnamese Foreign Ministry defends religious rights situation in Viet Nam after critical 2005 Amnesty International Report.

Italians Reinstate Defamation Claim Against Author by Muslim Activist

The conservative news and opinion blog Pardon My English today has a posting on reports of Italian authorities ordering author and journalist Oriana Fallaci to stand trial for defamation of Islam. The suit grows out of her 2004 book "La Forza della Ragione" (The Force of Reason). Prosecutors had originally dropped the charges on free speech grounds, but a local preliminary judge has reinstated the suit that was brought by Adel Smith, a high-profile Muslim activist. (See earlier posting about Smith).