NC Quran In Court Dispute Being Referred To Legislature

In a posting last month, I focused on the dispute in North Carolina courts over whether witnesses may be sworn using a copy of the Quran instead of the Bible. Two judges in Guilford County had said "no". The issue was supposed to have been decided by a state Judicial Conference, or by the Administrative Office of the Courts. But now the Charlotte Observer reports that apparently the issue is being referred to the state legislature instead. Current state law calls for the oath to be taken on the "Holy Scriptures". The Guilford County judges say that this means the Christian Bible.

The language of the North Carolina General Statutes, Chap. 11, Art. 1 on the administration of oaths is interesting. Apparently the section at issue is Sec. 11-1, which reads: "Judges ... shall (except in the cases in this Chapter excepted) require the party to be sworn to lay his hand upon the Holy Scriptures, in token of his engagement to speak the truth and in further token that, if he should swerve from the truth, he may be justly deprived of all the blessings of that holy book and made liable to that vengeance which he has imprecated on his own head."

Prisoner's "Religious Name" Recognized Only Prospectively

In United States v. Baker, yesterday the 11 Circuit Court of Appeals held that a prisoner who has changed his name to adopt a "religious name" may have that name added, prospectively, to the name under which he was committed to prison. However, he has no Free Exercise right to have his commitment order, issued in 1993, changed to reflect his later legal name change.

UK Racial and Religious Hatred Bill Clears Commons

Yesterday, Great Britain's controversial Racial and Religious Hatred Bill moved one step closer to passage. (See prior postings 1, 2). BBC News reported that the House of Commons gave the proposal a vote of 301 to 229 on its third reading, but not before assuring that citizen's arrests for violation of the law would not be permitted. As the Telegraph reported today, many had feared that otherwise people taking offense at comments made at a public meeting could just arrest the speaker. Representatives of many churches, as well as both Conservative and Liberal Democratic politicians oppose the bill that prohibits incitement to religious hatred. They argue it will infringe free speech by prohibiting legitimate discussion of religious beliefs. They also argue that by not defining religion, the law could be used to protect Satanists and other marginal groups. The bill will now move to the House of Lords where its prospects for passage are far more doubtful.

Christian Group Call For Anti-ACLU Court Appointee

Despite President Bush's request that conservative groups moderate their rhetoric on Supreme Court nominees, it is clear that some religious groups are not heeding his plea. Today a press release was issued by Christians Reviving America's Values calling on the President to appoint a conservative Justice "to counter Bill Clinton's appointment of former ACLU General Counsel Ruth Bader Ginsburg." It also called for Congressional hearings "to expose the ACLU's use of taxpayer money to fund its extremist agenda, and pass legislation to stop this practice," pointing to awards of attorney fees to the ACLU in suits in which it prevailed against city or state governments. The release also said: "President Bush has been elected twice -- with the deciding votes by all accounts being cast by conservative Christians. It is imperative that he appoint a counterbalance to the pro-ACLU Ruth Bader Ginsburg."

Israel’s High Court Holds Another Hearing on IDF Exemptions for Yeshiva Students

Both the Jerusalem Post and the Haaretz yesterday reported on proceedings before Israel's High Court of Justice in the ongoing suit challenging Israel's 3-year old Tal Law. The Law (background article) provides for postponement of military service for ultra-Orthodox yeshiva students. Its enactment was impelled by a 1998 High Court decision that struck down a long-standing arrangement exempting yeshiva students from the draft.

The Tal Law was supposed to encourage Orthodox students to enlist by giving them the option to take a "decision year", during which they can leave their yeshiva and decide whether to enter the IDF for a short period of time, followed by reserve duty; enlist in alternative national service; or return to their studies. For the past three years, the Court has been considering a petition filed by the Movement for the Quality of Government in Israel seeking to declare the law unconstitutional. The group would like to see Orthodox students subject to the draft in the same manner that all others are. The government says that more time is needed to see if the law achieves its goal.

Everyone concedes that the decision year option, so far, has been a failure. Yeshivas do not publicize it, students do not know about it, and an alternative civil national service program has still not been created. In 3 years, only 31 students have been inducted into the military. Another 178 are in the process of being drafted and 48 are waiting to be assigned to the alternative civil national service. They were all part of the 1,115 students who took advantage of the decision year. Currently 41,000 yeshiva students remain exempt from service, a 35% increase since 1998.

Prisoner's Religious Claim Rejected Under PLRA

A case decided earlier this month by a Kentucky federal district court illustrates the procedural hurdles that prisoners face in bringing claims for religious accommodation, despite the enactment of RLUIPA. In Franklin v. Rees, 2005 US Dist. LEXIS 13578 (WD KY, July 1, 2005), a Sikh prisoner had filed grievances for over 3 years seeking a diet consistent with his religious beliefs and items he needed for religious worship. Even though the court concedes that "plaintiff has diligently pursued his quest to have his religious needs met while confined", it rejected his claim because the Prison Litigation Reform Act (PLRA), 42 USC 1997e(a), requires that a prisoner exhaust his administrative remedies before filing suit. Here, the court said, "he has failed to satisfy the PLRA's exhaustion requirement as his many grievances did not specifically name any of the individuals that he has named as defendants in his complaint."

Closing of Uzbek Protestant Church Upheld

Forum 18 reports today that a court in Uzbekistan's northwest province of Karakalpakstan has upheld the Justice Ministry's closure of the last legal Protestant church in the province. Authorities claimed that the Emmanuel Full Gospel Church held an illegal general meeting in a private home 125 miles away from its church building in Nukus. It has also been reported that authorities in the province have been encouraging private kangaroo court proceedings against Muslim converts to Christianity. Previous postings (1, 2, 3)have reported on the long-running religious freedom issues in Uzbekistan.

Recent Law Review Article on Religion Clauses

A recent law review article of interest on defining religion under the religion clauses is Troy L. Booher, Finding Religion for the First Amendment, 38 John Marshall Law Review 469 (2004).

Vote on Fate of Mt. Soledad Cross Approaching

In a bit over two weeks, the long fight over maintaining the Mt. Soledad cross on a hill overlooking La Jolla, California will reach another milestone. Today's San Diego Union Tribune reports that on July 26, the voters of San Diego will vote on Proposition A which will authorize City Council to donate the cross site to the Federal government as a veterans' memorial.

In 1991 in Murphy v. Bilbray, 782 F. Supp. 1420, a California federal district court ruled that the cross on city land violated the "No Preference" clause of the California Constitution. Ever since then, the city has been seeking a solution. This has included attempts to sell the land to private parties, extensive additional litigation, and the inclusion of language in this year's federal budget bill that directs the Secretary of Interior to administer the site as part of the National Park System once it is donated to the federal government. In addition, California Congressman Duncan Hunter has introduced the War Memorial Preservation Act (H.R. 2229) which would specifically permit federal war memorials to recognize the religious backgrounds of members of the armed forces by including religious symbols.

Opponents claim the transfer would be an unconstitutional governmental preference for Christianity, and that the transfer would merely create Establishment Clause problems for the federal government. Opponents, though, are doing little to campaign against the ballot issue. Instead they are focusing on court challenges. There will be a court hearing this Wednesday in a suit that seeks to invalidate the referendum, or at least impose a two-thirds requirement for its passage.

UPDATE: After a July 13 hearing, Judge Patricia Yim Cowett ruled that the referendum could move forward. The Union Tribune reported that the judge said that a 2/3 vote however might be required and asked for futher briefs on other issues. A further hearing is scheduled before the date of the vote.

New Egyptian Law On Political Parties Angers Muslim Clerics

Top Egyptian clerics are speaking out against a new law on political parties that no longer requires party platforms to be consistent with Sharia (Islamic law). A member of the Parliament's religious affairs committee says that the legislation was never reviewed by his committee. A report today in Egypt Election Daily News quotes Sheikh Mohammed Sayed Tantawi, head of Al Azhar mosque as saying that several members of the Academy of Islamic Scholars, a consultative body affiliated to the Al Azhar mosque, wanted to send Parliament a memorandum on the issue. “However, I refused, saying that we did not want to get into problems with the government and parliament.”

Can Prosecutor Use Religious Beliefs of Alleged Terrorist In Closing Argument?

What role can a defendant’s religion play in a prosecutor’s closing argument? The Legal Times on Friday reported on a terrorism trial in a Virginia federal court in which Assistant U.S. Attorney Gordon Kromberg argued to the jury: "If you're a kafir, Timimi believes in time of war he's supposed to lie to you. Don't fall for it. Find him -- find Sheik Ali Timimi -- guilty as charged." A “kafir” is a non-Muslim or a non-believer. Kromberg claims that his remark was not about Islam in general, but about this individual defendant’s beliefs.

Before the trial began, the lawyers argued a pre-trial motion revolving around whether jurors could be told that defendant Timimi had said that Muslims could lie to the enemy if they were at war. Defense counsel cited Federal Rules of Evidence, Rule 610, that prohibits using witnesses’ religious beliefs to undermine or support their credibility. But the judge ruled that this statement was a political belief, not a religious one.

Timimi was indicted in 2004 on charges that he helped several others learn how to get to a terrorist training camp in Pakistan.

Tomorrow Marks 80 Years Since Scopes Trial

Sunday’s 80th anniversary of the beginning of the Scopes "Monkey Trial" is attracting a good deal of media attention. (See prior posting). Friday’s Wichita Eagle discussed the trial and two recent books about it. The books are Marvin Olasky & John Perry, Monkey Business: The True Story of the Scopes Trial (Broadman & Holman), and Michael Ruse, The Evolution-Creation Struggle (Harvard University Press), previously mentioned on this blog.

The Ashland, TN City Times on Friday reported on the Scopes Festival, held each year in Dayton, Tennessee, the site of the trial. The Festival, which features a re-enactment of the trial, is expected to draw 1,100 people this year. The organizing chairman for the festival is Tom Davis. He is affiliated with Bryan College, a religious college named for William Jennings Bryan, the prosecutor in the Scopes trial.

Pentagon Enjoined Under Establishment Clause From Funding Scout Jamboree

Every year the Boy Scouts hold their National Jamboree at Fort A.P. Hill, Virginia. Each year the Pentagon spends some $6 to $8 million transporting personnel and supplies to get the base ready for the event. That aid is authorized by 10 USC Sec. 2554 (the Jamboree statute). Today the Army Times reports that on June 22, an Illinois federal district court enjoined further funding of Boy Scout Jamborees. The injunction follows the court's earlier grant of summary judgment in the case in Winkler v. Chicago School Reform Bd. of Trustees, 2005 WL 627966 (ND IL, May 16, 2005). There the court held that the Jamboree statute violates the Establishment Clause by funding the Boy Scouts with its substantial religious component, to the exclusion of all other groups. The Scouts require an oath of duty to God, exclude atheists and agnostics from the organization, and require a prayer book as part of each scout's personal camping equipment for the Jamboree. The ruling will not affect this year's Jamboree scheduled to begin later this month.

The ACLU of Illinois also announced the injunction today. The plaintiffs in the case, who were represented by the ACLU, were Reverend Eugene Winkler and Rabbi Gary Gerson. They praised the court's action as maintaining government neutrlity toward religion.

Opinons in GA Cheerleader's Case Available

While a bit dated (story from Columbus Ga Ledger-Enquirer), there appeared on LEXIS for the first time today two opinions handed down April 28 in the case of University of Georgia cheerleading coordinator Mari Louise Braswell.

Braswell and her husband, a Christian minister, conducted Bible study classes in their home that were attended by members of the cheerleading squad. Two Jewish cheerleaders claimed that Braswell used her position to encourage students to adopt certain religious practices and that she treated non-Christian cheerleaders unfavorably. As a result of a formal complaint by one of them, the University placed Braswell on administrative probation, requiring her to eliminate the religious overtones in her program. The University also gave the complaining student an extra year to cheer and placed her on the football cheerleading squad without a tryout.

After Braswell read a public statement complaining about the handling of the complaint, the University fired her. In Braswell v. Board of Regents of the Univ System of Ga., 369 F.Supp.2d 1362 (DC ND GA, April 28, 2005), a federal district court refused to issue a preliminary injunction against the University finding that Braswell was unlikely to succeed on her free exercise of religion, free speech, equal protection and due process claims.

In a second opinion with the same caption, reported at 369 F. Supp.2d 1371, the court dismissed the damage claims against various defendants, finding 11th Amendment immunity or qualified immunity. However it permitted Braswell to proceed with her claim for reinstatement, even though it had found that it is unlikely that she will succeed on the merits.

Jewish Groups Hesitate To Take Active Role In SCOTUS Nomination Fight

Yesterday, the Jewish Journal of Greater Los Angeles reported on the "awkward" position in which Jewish groups find themselves in the battle over who will succeed Sandra Day O'Connor on the US Supreme Court. It points out that many Jewish groups hesitate to oppose specific candidates, particularly because that may sacrifice political capital and access in a fight with little chance of success. But traditional coalition partners may pressure the groups to weigh in. Also, Jewish groups are increasingly divided on domestic issues. Strong support for church-state separation is the main issue that unites them. A few of the more liberal Jewish groups, like the National Council of Jewish Women and the Religious Action Center of Reform Judaism, however, are likely to be active in the political fight according to the paper. They will focus not just on church-state, but on reproductive rights and civil rights as well.

A similar conclusion is reached in a story in today's Cleveland Jewish News. Its interviews with leaders of a number of Jewish organizations indicate Jewish concern over who will be selected. However, much of their involvement is likely to be low key and behind the scenes.

New Book on Pluralistic America

Encounter Books has recently published The Right to be Wrong: Religion and Freedom in a Pluralistic America, written by Kevin Seamus Hasson, founder of the Becket Fund for Religious Liberty. Here is part of the publisher's description: "No area of civil government seems safe from the ongoing struggle between those who say only the true faith belongs in public and those who say that no faiths do. Who are the people behind this battle? ... Hasson thinks of them as “the Pilgrims” and the “Park Rangers.” Pilgrims believe that their truths require them to restrict others' religious freedom. Park Rangers believe that their freedoms require them to make sure others' religious truths remain private. Together, these groups are responsible for the impasse over the role of religion in our public life. The [book] explains why the Pilgrims and Park Rangers are both mistaken."

School Sued After Refusing Religious Immunization Waiver

Parents of a Rochester, New York area high school student have sued the Rush-Henrietta Central School District, seeking a temporary restraining order and $1 million in damages for civil rights violations, according to an AP article in yesterday's NY Newsday. The federal lawsuit alleges that school officials barred plaintiffs' son from the lacrosse team because he refused to get a tetanus shot for religious reasons. The parents had obtained a waiver from immunizations on religious grounds under New York's Public Health Law. School officials claim that waiver covers only academics, and not athletics.

Two Muslim Religious Leaders Condemn London Bombings

At least two Middle Eastern Muslim religious leaders have strongly condemned the bombings that occurred today in London, according to a report from Islam Online. From Cairo, Al-Azhar Grand Imam Sheikh Mohammad Sayyed Tantawi said: "Those responsible for London attacks are criminals who do not represent Islam or even truly understand (its message)." He went on to denounced the killing of civilians, including women and children, "without differentiating between combatants and non-combatants." Tantawi, who is the highest spiritual authority for Sunni Moslems around the world, has previously condemned suicide bombings against Israeli civilians.

From Lebanon, a leading Shiite scholar, Mohammad Hussein Fadlallah, said: "These crimes are not accepted by any religion. It is a barbarism wholly rejected by Islam." In addition many government officials and ordinary citizens throughout the Middle East were quoted by Islam Online as denouncing the killings.

Intelligent Design Gains Support of Austrian Cardinal

The controversy over teaching Intelligent Design in the schools is likely to heat up as a leading Catholic Cardinal, Christoph Schonborn, seemingly endorsed the theory today in a New York Times op-ed titled Finding Design in Nature. Schonborn, the Cardinal Archbishop of Vienna, was the lead editor of the 1992 Catechism of the Catholic Church. Minimizing the importance of a 1996 letter by Pope John Paul II that seemed to endorse evolutionary theory, Schonborn said: "Any system of thought that denies or seeks to explain away the overwhelming evidence for design in biology is ideology, not science."

1st Circuit Denies Standing In Challenge To Holiday Displays

Yesterday in Osediacz v. City of Cranston, the US First Circuit Court of Appeals rejected a challenge to a holiday display policy in Cranston, Rhode Island, finding that plaintiff lacked standing. In 2003, the city allowed private parties to place "appropriate" holiday displays on City Hall lawn, subject to approval of the mayor. The trial court had rejected plaintiff's Establishment Clause challenge to the policy, but had found that the policy violated the First Amendment's speech clause by placing standardless discretion in the mayor to approve or disapprove displays. However the Court of Appeals held that because plaintiff had no interest in erecting a display, she would not be subject to the vagaries of the approval process. Because she had no personal interest beyond that of any resident or taxpayer, she lacked standing to maintain the challenge.

More on Judge McConnell's Views

In response to my posting yesterday on Religion Clause opinions of potential Supreme Court nominees, commenters have suggested additional sources on Judge Michael McConnell's views. While not strictly a free exercise or establishment clause opinion, McConnell wrote a concurring opinion in O Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973 (10th Cir., Nov. 12, 2004). It involves the standard for granting a preliminary injunction when a practice is challenged under the Religious Freedom Restoration Act. The US Supreme Court has granted certiorari in the case. [Thanks to Derek L. Gaubatz]

Also, McConnell has written at least 3 law review articles on the religion clauses, Here they are with links to LEXIS: The Problem of Singling Out Religion, 50 DePaul Law Review 1 (2000); Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 William & Mary Law Review 2105 (2003); The Origins and Historical Understanding of Free Exercise of Religion, 103 Harvard Law Review 1409 (1990) . [Thanks to Troy L. Booher]

ADL Objects To Lunchtime Prayer At Naval Academy

The Baltimore Sun this morning reports on a letter sent to the US Naval Academy last month by the Anti Defamation League objecting to organized lunchtime prayer at the Academy. The ADL's June 17 letter objected to the Academy's requiring all the midshipmen to "stand in formation, before lunch, while the chaplain recites a prayer." Chaplains of different faiths rotate in giving the prayer. The Academy said that part of the reason for the prayer is to encourage future officers to understand other religions. In 2003, the ACLU had filed a similar complaint with the Academy.

Bishops Conference Outlines Concerns On Supreme Court Appointment

Spokane Bishop William S. Skylstad, president of the United States Conference of Catholic Bishops, wrote President Bush last Friday regarding the type of person the USCCB would like to see nominated to replace retiring US Supreme Court Justice Sandra Day O'Connor. His letter, which is included in the USCCB's July 6 press release, says in part:

"I urge you to consider for the Court qualified jurists who, pre-eminently, support the protection of human life from conception to natural death, especially of those who are unborn, disabled, or terminally ill. I would ask you to consider jurists who are also cognizant of the rights of minorities, immigrants, and those in need; respect the role of religion and of religious institutions in our society and the protections afforded them by the First Amendment; recognize the value of parental choice in education; and favor restraining and ending the use of the death penalty. "

Chinese Church Leader To Be Tried For Illegally Printing Bibles

The leader of an underground Chinese church who has been in custody for 10 months is scheduled to appear in court in Beijing tomorrow, according to a report by BBC News. Cai Zhuohua, along with his wife and two other church members, has been charged with "illegal business practices" for printing over 200,000 Bibles. Only one company is permitted by the Chinese government to print Bibles. Cai's lawyer, Gao Zhisheng, said that the Bibles were not going to be sold, but were to be distributed free. He continued, "Authorities are always using economics as a pretext to deal with religious and political issues".

New Sudan Constitution Grants Concession to Non-Muslims

Today the AP in a story carried by the Los Angeles Times reports that Sudan's National Assembly has adopted a new Constitution. (See earlier related posting.) The new charter moves the country away from complete Islamic rule. For the first time, the Constitution protects freedom of religion and expression. After a peace agreement with the country's southern rebels, the new Constitution provides that Islamic law will not be applied in the south of the country which is mainly Christian and animist. It also removes the present requirement that the country's President be a Muslim, paving the way for Christian rebel leader John Garang to be sworn in as First Vice President.

Religion Clause Views of Potenital Supreme Court Nominees

In last week's New York Times, Neal A. Lewis wrote In List of Potential Justices, Many Kinds of Conservative suggesting eight leading candidates for replacing Justice Sandra Day O'Connor. Seven of the eight are sitting judges. What kind of Religion Clause opinions have the seven written?

For three, I could find none-- Judges John G. Roberts (DC Circuit), Michael McConnell (10th Circuit), and Edith Brown Clement (5th Circuit). [If you know of opinions I have missed, please let me know.] However, here is an article written in 1995 by Michael McConnell while he was a Professor at the University of Chicago Law School, titled The Movement For Religious Rights. It appeared in The American Enterprise.

For the other potential nominees, I was able to find Free Exercise and/or Establishment Clause opinions they authored. Here is a Religion Clause opinion from each:

Judge J. Harvie Wilkinson III (Fourth Circuit)- Simpson v. Chesterfield County Bd. of Supervisors, 404 F.3d 276 (April 14, 2005)- dismissal of claim by Wiccan seeking to be added to list of those who could give legislative invocation.

Judge J. Michael Luttig (Fourth Circuit)- Peck v. Upshur County Bd. of Educ., 155 F.3d 274 (Aug. 14, 1998)- upheld single day each school year for distribution of religious and political literature in high schools by private groups. But struck down practice as to elementary schools.

Judge Edith H. Jones (5th Cir.)- Freeman v. Tex. Dep't of Crim. Justice, 369 F.3d 854 (May 7, 2004)- upheld against Free Exercise challenge prison’s policy on holding of religious services.

Judge Emilio Garza (5th Cir.)- Dissent in Doe by Doe v. Beaumont Indep. School Dist., 173 F.3d 274 (April 16, 1999) [LEXIS link]- dissent would reject Establishment Clause challenge to "Clergy in the School" character education program. Note: apparently this opinion was withdrawn after an en banc rehearing reported at 240 F.3d 462 in which opinions were written by others.

Also widely mentioned elsewhere as a possible nominee is Judge Samuel A Alito, Jr. (Third Circuit). Among his opinions is Blackhawk v. Pennsylvania, 381 F.3d 202 (Aug. 20, 2004)- found Free Exercise violation in refusing waiver of a permit fee requirement under the Pa. Game & Wildlife Code for Native American keeping animals for religious purposes.

Recent Church-State Law Review Articles

The Spring 2005 issue of the Journal of Church and State has recently been published. Its table of contents and a few of its features are available online free of charge. The full issue is available on Westlaw. The issue contains 7 articles and reviews of 21 books.

SmartCILP this week lists these new articles of interest:

Thomas C. Berg, Minority Religions and the Religion Clause, 82 Washington Univ. Law Quar. 919-1000 (2004).

David A. Fraser, A Passive Collaboration: Bureaucracy, Legality, and the Jews of Brussels, 1940-1944, 30 Brooklyn J. Int'l. L. 365-420 (2005).

Lee Ann Rabe, A Rose By Any Other Name: School Prayer Redefined As a Moment of Silence Is Still Unconstitutional, 82 Denver Univ L. Rev. 57-78 (2004).

Ellen S. Reinstein, Turn the Other Cheek, or Demand an Eye for an Eye? Religious Persecution in China and an Effective Western Response, 20 Connecticut Jour. Int'l. Law 1-37 (2004).

New Progressive Christian Group Supports Church-State Separation

The Christian Alliance for Progress (CAP) is a new grassroots progressive religious movement. The Inter Press Service News Agency reported yesterday that the group began organizing 4 months ago and has attracted 4000 members. According to the article: "CAP's core principles include commitments to economic justice, environmental stewardship, equality for homosexuals, effective prevention -- but not criminalisation -- of abortion, peaceful solutions to international disputes, and universal health care for all U.S. citizens."

Last week CAP delivered The Jacksonville Declaration, challenging the stance of the Christian right, proclaiming in part: "We do not support your agenda to erode the separation of church and state, to blur the vital distinction between your interpretation of Christianity and our shared democratic institutions. Moreover, we do not accept what seems to be your understanding of Christian values. We reject a Christianity co-opted by any government and used as a tool to ostracize, to subjugate, or to condone bigotry, greed and injustice."

NPR On the Scopes "Monkey Trial"

National Public Radio yesterday marked the 80th anniversary of the Scopes "Monkey Trial". The audio of a very interesting piece by Noah Adams is available on its website, as is a Timeline of the trial and other coverage of the evolution-creationism debate.

New Articles From Federalist Society Journal

The new May 2005 issue of Engage: The Journal of the Federalist Society's Practice Groups carries three articles of interest to church-state lawyers:

James P. Kelly III, Human Rights, Education, Religion, and Parental Choice in Education

Robert D. Ault & Larry J. Obhof, It's Not Just the Test That's a Lemon, It's How Some Judges Apply It

Book Review by James A. Sonne of Carl H. Esbeck, Stanley W. Carlson-Thies, and Ronald J. Sider, The Freedom of Faith-Based Organizations to Staff on a Religious Basis

Universal Declaration of Human Rights Banned In Maldives

In a startling move reported today by Minivan News, the President of the Maldives has banned copies of the Universal Declaration of Human Rights from being distributed in the country. The Maldives has signed onto the Universal Declaration, and the Maldives Human Rights Commission has been distributing copies for the last year. However, now the Maldivan High Council on Islamic Matters has issued a press release claiming that Articles 16 and 18 of the Universal Declaration contravene the Maldivan Constitution. Those articles provide for freedom of religion, freedom to change religions, and for equality for men and women, and for people of all religions. The Maldives Constitution declares Islam the religion of the Maldives. In an understatement, the Minivan News commented that "the President may be trying to 'play the religious card' by banning the document".

Sunday Hunting Pressed In Pennsylvania

The Clarion News reports today that religious arguments are being used by both sides in connection with three bills pending in the Pennsylvania legislature to allow hunting on Sunday. Currently, Sunday hunting is permitted for foxes and coyotes, and on noncommercial regulated hunting grounds. HB 417 would expand it to woodchucks, with the landowner's permission; HB 934 would allow Sunday hunting on regulated commercial hunting grounds; and HB 904 would totally repeal the ban on Sunday hunting. Opponents focus on having a day for religious pursuits. Proponents say that the current ban discriminates against those who have other days as their days of rest.

Serbia Delays Trial of Mosque Arsonists Again

Forum 18 today says that prosecutors in Serbia are dragging their feet in bringing 11 young people to trial for burning a mosque in the city of Nis. It has been 15 months since the attack, and yesterday a municipal court hearing was postponed for a sixth time. Most of the delays were caused by the non-appearance of some of the accused or their lawyers. When a trial finally takes place, it will be for "group violence", and not for "initiating religious hatred".

Swaziland Constitution Falters Over Religion Issue

Swaziland's King Mswati III has refused to sign the new Constitution passed by Parliament and has sent it back for reconsideration according to today's South Africa Mail & Guardian. One of the two provisions he objects to in the long-awaited Constitution is a clause that makes Christianity the official religion in the country, even though Sec. 4 of the document goes on to provide that this does not prevent the existence or practice of other religions. (See prior related posting.)

Plaintiff in Nebraska 10 Commandments Case Outed; Fears for His Safety

In 2001, ACLU Nebraska brought suit against the city of Plattsmouth challenging a 10 Commandments monument in a public park. The plaintiff represented by the ACLU was identified in the suit only as "John Doe" because of threats he had received. Yesterday, the Omaha World-Herald identified the man, as well as the type of car he drives and its license plate. The article also discussed his writings about religion and the threats that have been made against him. Today, the Sioux City Journal reports on the continuing concerns the man has for his safety and the possibility that he may move from Plattsmouth now that his identity has been revealed.

Plaintiff in VA Flag Salute Case Is Deeply Religious

The Washington Post today carries a profile of Edward R. Myers of Sterling, Virginia, a religious Mennonite who now attends a Catholic church. In 2002, he brought suit challenging the use of "under God" in the Pledge of Allegiance. The case is now before the US Fourth Circuit Court of Appeals. Says Myers: "To me, it's heresy. Government is about keeping civil order. Church is about loving and worshiping God. You don't mix . . . loving God because of free choice with something that's about duty and where you were born."

Baghdad Barbers Being Killed by Sunni Radicals

In Baghdad, barbers are being assassinated by Sunni religious hard-liners. Shaving violates Islamic law, and Sunni radicals claim that clean-shaven men want to look like American soldiers. The Brisbane, Australia Courier-Mail reports today that at least 20 barbers have been killed over the last two months. Some barbers have stopped removing facial hair. Others have gone underground. Many men are venturing into northwestern Sadr City for a shave since this area is Shiite and no killings of barbers have taken place there.

Religious Tax Protesters Sentenced to Prison

The Philadelphia Inquirer reported today that 3 members of a 30-member New Jersey religious group were sentenced to prison for failing to pay some $300,000 in federal income taxes. Their refusal to pay was based on religious grounds. They object to their money being used to fund warfare. The prison sentences, imposed last Friday, range from 6 to 27 months.

Prayer By Jury Does Not Taint Death Penalty Recommendation

In State v. Williams, 2005-Ohio-3366 (June 30, 2005), an Ohio appellate court rejected a claim that a jury's decision to recommend the death penalty was tainted by the fact that the jury prayed together before their deliberations. At the beginning of the second day of deliberations in the penalty stage in William's trial on murder, rape and robbery charges, one of the jurors led the others in a prayer asking for guidance in the decision they were about to make and peace in their hearts after the decision was made. The Court held that since Williams made no showing that the prayer affected the jury's decision, he lacked standing to assert a First Amendment claim challenging the prayer. It also held that the prayer did not deny Williams any of his rights under the First, Eighth or Fourteenth Amendments.

Prisoner's Complaints About Kosher Meals Rejected

In Morton v. DeShambo, 2005 U.S. Dist. LEXIS 13003 (USDC WD MI, May 3, 2005), which recently became available, a federal Magistrate in Michigan has recommended that a prisoner's claim regarding accommodation of his religious needs be dismissed. Morton, an inmate at Alger Maximum Correctional Facility claimed that prison officials and staff were intentionally creating problems with Kosher food trays in order to force Jewish prisoners of their Kosher diets and save money for the prison. Plaintiff also claimed the right to a vegan Kosher diet. The Magistrate found that mistakes by the food service staff were isolated and not intentional.

False Image of State Religious Display

It is difficult enough for the average citizen to decide on the appropriateness of real attempts by government to place religious displays on public property. Today's New York Times Magazine cover carries this image to accompany Noah Feldman's article, A Church-State Solution. However, when you look for the source of the photo, Page 10 of the Magazine reads: "On the cover: Photomontages by Jason Fulford for the New York Times. Digital manipulation by Statik Digital." Translated, I think this means that the photo is not real and the "One God Only" sign has been digitally added. This surely does not help the public debate.

UPDATE: I should add that the article itself contains 3 additional digitally altered photos, albeit slightly less believable ones. One commenter suggests that the cover photo would be recognized as altered and seen as humorous by readers. I guess it is a comment on the extremes to which the issue of religious displays has moved that I am skeptical that the photos will be universally viewed in this way. Since the article's author urges seriously, and not humorously, that a solution to the current debate includes offering greater latitude for religious speech and symbols in public debate, I wonder if he thinks the photos are appropriate ones to accompany the article. However, I am willing to entertain the possiblity that on this one, my usual sense of humor has taken leave of me.

A Legal Alternative- Religious Signs on Private Property

One of the most difficult concepts for non-lawyers is the sharp Constitutional line between governmental action and private action. Today's Winston-Salem Journal reports on the increasing use of private property for the posting of religious symbols. Increasingly, religious slogans and Biblical passages are posted on private land along well-traveled roadsides and on billboards. For example, on a scenic route to Daniel Boone National Forest in Kentucky, a roadside landowner has posted a sign reading "Warning / Jesus is coming / RU Ready?". Everyone agrees, there are no constitutional problems here.

Public Art Exhibits and the Ten Commandments

While some people are interpreting the Supreme Court's Ten Commandments cases to allow more relgious monuments on public property than a fair reading would indicate (see prior posting), others are leaning too far in the other direction. The Daily Freeman reported on Saturday that the mayor of Kingston, NY has ordered an artist to remove her sculpure from the annual art show held for three months each year on the court house lawn. At issue is a wooden sculpture of a horse, titled "Atticus". The problem is that the Ten Commandments, psalms and other biblical references are carved into the pieces of driftwood from which the sculpture is made.

UPDATE: Officials and the artist, Rita Dee, have agreed to move the sculpture across the street to the grounds of the Old Dutch Church, according to the July 6 Record Online.

A Minor Mea Culpa on the O'Connor Statistics

Marty Lederman has pointed out two errors in my posting yeterday detailing the Religion Clause opinions that Justice O'Connor wrote. Due to a data base glitch I did not catch, I failed to include Agostini v. Felton in which she also wrote a majority opinion. Second, in Westside Community Bd. of Edu. v. Mergens, while she wrote the opinion for the Court, it was a majority opinion only as to the statutory issue, and was a plurality opinoin on the 1st Amendment issue. Yesterday's posting was updated and corrected this evening.

Religion Already An Issue In O'Connor Succession

Only hours after Sandra Day O'Connor announced her retirement from the US Supreme Court, issues of religion have begun to find their way into the debate about her successor, according to a report by the Christian Communication Network. A new Catholic-based organization, Fidelis, has begun an advertising campaign focusing on claimed religious bigotry in recent judicial confirmation hearings. They point to statements made during the hearings on William Pryor, as well as more recent statements by Democratic National Chairman Howard Dean. Fidelis' president Joseph Cella said: "Catholics and all people of faith must join together and defend Supreme Court nominees who will likely be attacked because of their faith and deeply-held beliefs."

O'Connor Retires; Review of Her Religion Clause Opinions

[UPDATED AND CORRECTED] Today the United States Supreme Court announced that Justice Sandra Day O'Connor is retiring, effective upon the nomination and confirmation of her successor. In her formal letter of retirement sent to the President, she said: "It has been a great privilege, indeed, to have served as a member of the Court for 24 Terms. I will leave it with enormous respect for the integrity of the Court and its role under our Constitutional structure." In the Rose Garden this morning, President Bush delivered remarks thanking Justice O'Connor and indicating that he is moving ahead to select a nominee to replace her in time for confirmation hearings and a vote before the Court's next term begins.

I thought it would be useful to review all the opinions that Justice O'Connor has written in First Amendment Free Exercise and Establishment Clause cases. Interestingly, she has only written the majority opinion in two of these cases, and a plurality opinion in a third, over her entire 24 years on the Court. The rest are concurrences or dissents. Here are the cases in which she has written, with links to the opinions:

Van Orden v. Perry (dissenting opinion)
McCreary County v. ACLU of Kentucky (concurring opinion)
Elk Grove Unif. School Dist. v. Newdow (concurring opinion)
Zelman v. Simmons-Harris (concurring opinion)
Mitchell v. Helms (concurring opinion)
Agostini v. Felton (majority opinion)
Capitol Square Review Bd. v. Pinette (concurring opinion)
Rosenberger v. University of Virginia (concurring opinion)
Bd. of Educ. of Kiryas Joel v. Grumet (concurring opinion)
Zobrest v. Catalina Foothills School Dist. (dissenting opinion)
Westside Community Bd. of Edu. v. Mergens ( plurality opinion)
Employment Division v. Smith (concurring opinion)
Hernandez v. Commissioner (dissenting opinion)
Allegheny County v. Greater Pittsburgh ACLU (concurring opinion)
Lyng v. Northwest Indian Cemetery Protective Assoc. (majority opinion)
Bowen v. Kendrick (concurring opinion)
Corporation of Presiding Bishop v. Amos (concurring opinion)
Witters v. Wash. Dept. of Services for Blind (concurring opinion)
Goldman v. Weinberger (dissenting opinion)
Bowen v. Roy (concur in part & dissent in part)
Wallace v. Jaffree (concurring opinion)
Grand Rapids School Dist. v. Ball (concur in part & dissent in part)
Estate of Thornton v. Calder (concurring opinion)
Aguilar v. Felton (dissenting opinion)
Lynch v. Donnelly (concurring opinion)

No Moses In Ohio's New Depiction of History Of Law

Discussions about the Ten Commandments on court house walls have often proceeded from the assumption that any mural depicting lawgivers through history would naturally include Moses among them. So it was refreshing to see a story in the June 27 issue of the Ohio State Bar Association Report titled History of Rule of Law Captured In Painting Collection In Supreme Court of Ohio Library . Six original 4x8 foot oils depicting "the history of the development of the rule of law", commissioned by the Ohio State Bar Association, have been installed in the law library of Ohio's new Supreme Court Building. They depict Hammurabi, Ramses the Great, Draco, The 10 Tables of Roman Law, the signing of the Magna Carta, an allegorical painting of developments in France from Louis XVI to Napoleon, the signing of the US Constitution, and Lady Justice Leading the People (an allegory of liberty, patriotism and the civil rights struggle). But not a mention of Moses or the Ten Commandments. It's nice to see that good lawyers can make their historical point without unnecessarily raising constitutional questions in the process.

Calls For Civil Code Grow In India After Notorious Rape Case

In India, there are rising calls among the right wing Hindu Sangh Parivar for the enactment of the Uniform Civil Code to govern family and personal matters, according to a report in today's South Asia Tribune. This new push stems from protests against rulings by conservative Muslim authorities in the northern Indian state of Uttar Pradesh after a Muslim woman was raped by her father-in-law. The history is reviewed in an article today from South Africa News 24. Originally local clerics ruled that the rape had annulled the woman's marriage, and ordered that she marry her father-in-law who raped her. They were overruled in part by the All India Muslim Personal Law Board (AIMPLB). It merely ordered the 28-year old Imrana Ilahi to separate from her husband. The husband is to raise their children. Many groups, including the All India Muslim Women's Personal Law Board, have strongly criticized the ruling.

The AIMPLB also said that the father-in-law who has been arrested, but claims that the sexual relations were consensual, should be stoned to death.

Humanist Congress To Meet In Paris

Reuters reports today that the World Humanist Congress will meet next week in Paris. Coinciding with the 100th anniversary of the French Law on Separation of Church and State, the meeting will focus on the challenge to secular states from religions and religious politicians.

"A Church-State Solution"

Already available online is an article that will appear this coming Sunday (July 3) in the New York Times Magazine. Written by NYU Law Professor Noah Feldman, the article titled A Church-State Solution argues that the clash between "values evangelicals" and "legal secularists" should be resolved by permitting greater latitude for religious speech and symbols in public debate. However, on the other side, there should be a stricter prohibition than now on state financing of religious institutions and activities. Discussion of Feldman's thesis is appearing on SCOTUS blog.

GTMO Treatment Of Detainees' Religious Needs Defended Before Congress

Yesterday three senior officers from the Guantanamo Bay Joint Task Force testified before the House Armed Services Committee on the protection of detainees' religious practices at the GTMO military detention center. An article from the American Forces Press Service summarized the testimony.

Command Sergeant Major Anthony Mendez testified that a loudspeaker at the camp signals the Muslim "call to prayer" five times a day. Those who choose to can take advantage of the prayer caps, beads and oil given to them. They can pray toward Mecca in the direction designated by arrows painted in each detainee cell and all common areas. For good behavior, they get traditional Islam prayer rugs as well. Every detainee is issued a personal copy of the Koran.

Army Brigadier General Jay Hood said they respect Muslim dietary practices, only serving food permitted under Muslim law and flying in Halal certified food. During Ramadan, meal schedules are adjusted to meet fasting requirements. Detainees are offered figs and honey at appropriate times.

Roy Moore Could Be 2006 Focus For Church-State Face-Off

It appears that former Alabama Supreme Court Chief Justice Roy Moore could become the lightning rod for church-state issues next year. At the Southern Baptist Convention Pastors' Conference ten days ago, he was greeted enthusiastically by his audience, as he spoke about "judicial tyranny" A report today in the Florida Baptist Witness offers these excerpts from his speech:

--There are consequences to what is happening in America today. The separation of church and state, a concept that has no basis in any U.S. founding documents – including the Constitution – does not mean a “separation of God and government". In fact, the doctrine is “biblically based”. In the Israelite nation God established the priestly and government functions to be separate – with the tribe of Levi handling the role of priests and the tribe of Judah in the role of civil leadership. God chose two separate bloodlines to keep those jurisdictions separate. The separation of church and state mandates an acknowledgement of God.--

Meanwhile, in the exhibit hall, attendees admiringly looked at the original Ten Commandments monument that Moore had been ordered to remove from the Alabama Supreme Court's rotunda.

Moore now heads his own advocacy group, the Foundation for Moral Law. He has written a book titled So Help Me God, and offers to sell autographed copies of it. All of this appears to be in preparation for a run by him for Governor of Alabama in 2006. The Swing State Project blog reported earlier this year that Moore plans to challenge incumbent Governor Bob Riley in the Republican primary. Indeed, earlier this month, the Boston Globe laid out the following nightmare scenario for the national Republican Party:

"Moore, a Republican who enjoys widespread support in his home state, is poised to run against a vulnerable Republican governor. If he wins, some party strategists speculate, he could defy a federal court order again by erecting a religious monument outside the Alabama state Capitol building. With the 2008 presidential race looming, President Bush would then face a no-win decision: either call out the National Guard to enforce a court order against a religious display on state grounds or allow a fellow born-again Christian to defy the courts."

That, says the Globe, is only the beginning. Moore would then be positioned to run for President in 2008, backed by conservatives who criticize George Bush's stands on issues such as gay marriage and the Terri Schiavo affair as being too moderate.

Turkish Parliament Rejects Veto Of Permissive Stance On Religion Courses

The Turkish Parliament yesterday overrode a veto by President Ahmet Necdet Sezer of amendments to Turkey's Penal Code that reduce the punishment for running a religion course without government authorization. According to a report today from Aljezeera, the amendments are seen as appeasing Islamists in the ruling Justice and Development Party. The President claimed that the change violates Turkey's secular principles. He can still send the law to the Constitutional Court for a ruling.

Judge Will Continue To Wear 10 Commandments Robe

Alabama Circuit Judge M. Ashley McKathan says that this week's US Supreme Court decisions will not change his seven month old practice of wearing a judicial robe inscribed with each of the Ten Commandments to show that biblical law is a foundation of the American legal system. According to today's Andalusa Star News, the judge said: "I have been wearing my robe since [the decisions] came down and will continue to do so if providence will allow."

Rastafarian Prisoner's Free Exercise Claim Regarding Dreadlocks Proceeds

In Stewart v. Berge (USDC WD WI, 6/23/2005), a Wisconsin federal district judge permitted a prisoner who is a Rastafarian to proceed with a Free Exercise claim based on the refusal of prison officials to take him to a medical appointment unless he cut his dreadlocks or removed his braids. While doubtful that petitioner would succeed in his claim, the court refused to dismiss it until the government showed the purpose for its prohibition on long hair when prisoners are being transferred between facilities.

Religious Discrimination Suit Against DE Elementary School

The Delaware Cape Gazette reported Tuesday on a law suit filed by a Muslim mother against the Cape Henlopen, DE school officials alleging religious harassment of her three daughters. The suit alleges that after 9-11, and continuing into 2004, a fourth-grade school teacher insisted on informing her students that Muslims were terrorists. At one point, the teacher, in front of other students, told plaintiff's daughter to transfer to another class. This led to harassment by fellow students. The school environment caused severe depression, anxiety and panic attacks in the student. The suit also alleges that Christian religious beliefs were discussed in school while denying expression of Islam. The suit seeks damages and new procedures for tracking and resolving discrimination and harassment claims.

Enforcement Efforts Against FLDS Having Effect

The New York Times today carries a long story on what has happened to the empire of the Fundamentalist Church of Latter Day Saints now that authorities in Arizona and Utah have begun to take action against the sect, known for advocating polygamy. With its leader, Warren Jeffs, in hiding, a Utah Probate Court stands ready to appoint former FLDS members, including two women who fled from it, as trustees of extensive property held in a trust by FLDS. I have previously posted a number of stories about FLDS (1, 2, 3, 4, 5)

Mayor Saved From Resigning After Cert. Denial

On Tuesday, the US Supreme Court denied certiorari in the case of Great Falls, SC v. Wynne (4th Cir., 2004) which had banned explicitly sectarian prayers at town council meetings. The Anderson, SC Independent Mail reported yesterday that this saved Anderson mayor Richard Shirley from having to carry through on his threat to resign if the Supreme Court prohibited him from using the name of Jesus Christ in invocations before city council. Anderson's City Council uses a rotation system, giving each council member the opportunity to lead the invocation as he or she desires. Apparently in the case involving Great Falls, members of the public were sometimes prevented from participating in council meetings if they were not present to hear the prayer. Anderson has no such restriction.

No Free Exercise Violation In Furnishing "Morning After" Pill To Minor

In Anspach v. City of Philadelphia, (USDC ED PA, 6/27/2005), the federal district court rejected parents claim that their Free Exercise of Religion was violated when a city-operated health clinic furnished their 16-year-old daughter (at her request) with the "morning after" pill. Among other things, parents failed to claim that their daughter was forced to take the pills, or that she was prevented from consulting with her parents or religious advisors, had she desired to do so. They also failed to allege that she was in fact pregnant at the time. The court also rejected other constitutional claims based on rights of parental guidance and family privacy.

Contempt Motion Against LA Abstinence Program Denied

Last Thursday, a Louisiana federal district court denied a motion by the ACLU of Louisiana to hold the Governor's Program on Abstinence in contempt of a 2002 order to keep religion out of the program. The Associated Press this week reports that the challenge was based on material on the program's web site in a question and answer section, and in a "Wedding Skit" on the website. The "Ask the Experts" section contained statements such as: "Abstaining from sex until entering a loving marriage will... [make you] really, truly, 'cool' in God's eyes." In his opinion in ACLU of Louisiana v. Foster, Judge Porteous found that the main purpose of the material on the web site was not to advance religion, and that it did not create excessive entanglement of government with religion.

New International Religious Liberty Institute

Andrews University, a Seventh Day Adventist college in Michigan, has announced the inauguration its new International Religious Liberty Institute. Its first event was a conference on "Religious Liberty: Sowing Freedom and the Gospel".

New Survey on First Amendment Attitudes

On Monday, the First Amendment Center announced the release of this year's annual State of the First Amendment Survey. The survey includes numerous questions about attitudes toward First Amendment religion issues-- including posting of the 10 Commandments and prayer in schools. The survey was conducted in May 2005 by New England Survey Research Associates, and has a margin of error of +/-3%.

Cert Denied In Other 10 Commandments Cases

The McCreary County case which the Supreme Court decided on Monday involved the posting of the Ten Commandments in two court houses. When the 6th Circuit below decided the cases, they had been consolidated with a third case, Harlan County v. ACLU of Kentucky, which involved posting of a similar display in a school. The Lexington Herald-Leader reports that yesterday the Supreme Court denied certiorari in the Harlan County case, as well as in three Ohio cases involving Ten Commandments postings in schools and a court house.

Analysis: Van Orden and Stevens' Hints As To "Charitable Choice"

While there is much in yesterday's various Van Orden opnions from the Supreme Court that is worthy of note, I would like to focus on one excerpt from Justice Stevens dissent because of its implications for the future in battles over "charitable choice". (See prior post for discussion of the McCreary County opinion.) In discussing the history of the monuments erected by the Fraternal Order of Eagles, Stevens says (pp. 9-10):

"The desire to combat juvenile delinquency by providing guidance to youths is both admirable and unquestionably secular. But achieving that goal through biblical teachings injects a religious purpose into an otherwise secular endeavor. By spreading the word of God and converting heathens to Christianity, missionaries expect to enlighten their converts, enhance their satisfaction with life, and improve their behavior. Similarly, by disseminating the"law of God"—directing fidelity to God and proscribing murder, theft, and adultery—the Eagles hope that this divine guidance will help wayward youths conform their behavior and improve their lives. In my judgment, the significant secular by-products that are intended consequences of religious instruction—indeed, of the establishment of most religions—are not the type of "secular" purposes that justify government promulgation of sacred religious messages."

"Though the State of Texas may genuinely wish to combat juvenile delinquency, and may rightly want to honor the Eagles for their efforts, it cannot effectuate these admirable purposes through an explicitly religious medium. "

Isn't the argument that Justice Stevens is rejecting exactly the argument made by many proponents of "charitable choice" today?

Analysis: Quotations of Note from McCreary County

It is time to look beyond result to some of the doctrinal implications of yesterday's Ten Commandments decisions. Here are a few of the things said along the way in McCreary County that merit further attention. A second posting will look at excerpts from Van Orden.

From Justice Souter's majority opinion:
Putting some bite into the "purpose" inquiry: "The Counties would read the cases as if the purpose enquiry were so naive that any transparent claim to secularity would satisfy it.... There is no precedent for the Counties' arguments.... [T]he secular purpose required has to be genuine, not a sham, and not merely secondary to a religious objective." (pp. 15-16) This is important because at least some lower courts have been ready to uphold governmental action motivated by religious considerations so long as some minor secular justification could be uncovered as well.

Diminishing the importance of symbolic expression: "Displaying that text [of the Ten Commandments] is thus differ­ent from a symbolic depiction, like tablets with 10 roman numerals, which could be seen as alluding to a general notion of law, not a sectarian conception of faith. Where the text is set out, the insistence of the religious message is hard to avoid in the absence of a context plausibly suggesting a message going beyond an excuse to promote the religious point of view."(pg. 20). Justice Souter is old enough to remember the aphorism: "The medium is the message". Is it really only text that sends a message today?

Reaffirming neutrality: "Given the variety of interpretative problems, the princi­ple of neutrality has provided a good sense of direction: the government may not favor one religion over another, or religion over irreligion, religious choice being the preroga­tive of individuals under the Free Exercise Clause. The principle has been helpful simply because it responds to one of the major concerns that prompted adoption of the Religion Clauses. The Framers and the citizens of their time intended not only to protect the integrity of individ­ual conscience in religious matters... but to guard against the civic divisiveness that follows when the Government weighs in on one side of religious debate...." (pg. 28). Given the fundamental challenge to Establishment Clause principles in recent years, this is a useful primer on behalf of a majority of the Court.

From Justice Scalia's dissent in McCreary:
Notion of a religious peoplehood: "[I]n the context of public acknowl­edgments of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority."(pg. 16) Rarely have proponents of governmental expression of religion so candidly acknowledged an interest in the government cementing a national (or state-wide) religious community.

Commentary On Getting It Right and Reading It Wrong

On balance, it seems to me that the Supreme Court got it more right than wrong yesterday in its Ten Commandments opinions. The atmosphere of the 1950's was substantially different than that of the past decade. While characterizing the motivations of the Fraternal Order of Eagles and Cecil B. DeMille in their distribution of monuments in the 1950's may be difficult, it is not difficult to characterize the motivations of those posting the commandments in Kentucky courthouses. They were attempting to reclaim a Christian America. The scrambling to hide that motivation is something that only lawyers could ignore. The net effect of the rulings will be to prohibit new monuments today motivated by Christian evangelism, while keeping the bulldozers away from scores of courthouse lawns around the country.

There is evidence, however, that evangelicals are already misreading the opinions. The Washington Post reported that within hours of the decisions, the Christian Defense Coalition announced a campaign to erect monuments similar to the one in Texas in 100 cities across the country as a way to preserve the country's Christian heritage. And the Fort Wayne Journal Gazette reports a rush by Indiana legislators to place the Ten Commandments on Indiana's statehouse lawn. It is the motivation, not the location or form of the depiction, that is key to yesterday's holdings. Only willful blindness could lead to a different conclusion.

Editorials On Supreme Court's 10 Commandments Rulings

In no particular order, here are links to a sampling of editorials on yesterday's Ten Commandments decisions from today's newspapers: New York Times; Washington Post; Austin American Statesman; Atlanta Journal Constitution; Salt Lake Tribune; Indianapolis Star; Minneapolis Star Tribune; Baltimore Sun; Seattle Post Intelligencer; Chicago Tribune.

Commentary On Ten Commandments Decisions Available

Extensive commentary on today's US Supreme Court "Ten Commandments decisions" will be available on SCOTUS Blog's special discussion site. Click here. I plan to let the dust settle and weigh in tomorrow with my comments.

US Supreme Court Strikes Down Ten Commandments In KY Court Houses, But Upholds Texas Capitol Display

UPDATED: In a 5-4 decision today, the US Supreme Court in McCreary County v. ACLU of Kentucky held that the Kentucky display of the Ten Commandments in two court houses violates the Establishment Clause, according to a report by CNN. Justice Souter's opinion for the court said that the predominant purpose of these displays was the advancement of religion. Though he said that in other contexts, like the frieze in the US Supreme Court, a neutral display that honors the nation's legal history would be permissible. Justice O'Connor wrote a concurring opinion. Justice Scalia wrote the dissent. The full opinions are available online.

However, also in a 5-4 decision, the Court upheld the display of the Ten Commandments on the lawn of the Texas state capitol in Van Orden v. Perry. Chief Justice Rehnquist wrote the majority opinion. Here is the full text of the various opinions in the case.

As an aside, I predicted this result (albeit cautiously) in an earlier posting.

(Also thanks to SCOTUS Blog for some of these leads.)

Illinois Expands Hate Crime Definition

Illinois Governor Rod Blagojevich yesterday signed into law SB 287 (full text) according to a report from the Associated Press. The new law expands the definition of hate crimes to include the use of electronic communications to harass a person because of religion, race, gender, sexual orientation, disability or national origin.

Russian Prosecutor Pursues Jewish Organization For Distributing Classic Writing

In a move reminiscent of Stalinist times, the Russian State Prosecutor has ordered an investigation of Russia's Congress of Jewish Organizations because the group has distributed an abbreviated Russian translation of the Shulkhan Arukh, a classic code of Jewish law compiled in the 16th century. According to a report in today's Haaretz, the Prosecutor is looking into whether statements in the work regarding the treatment of non-Jews constitute racist incitement and anti-Russian material. The inquiry, which has been reported widely in the Russian press, follows an increase in anti-Semitic incidents in Russia.

UPDATE: On Tuesday, June 28, the Russian State Prosecutor announced that he is cancelling this investigation, according to a report in Haaretz.

Police Officer Allegedly Targets Druid Couple In Traffic Stop

In Greer, SC, a couple claims that their Druid bumper stickers triggered their traffic stop, according to yesterday's World Net Daily. The policeman who ticketed them, they say, attempted to talk them out of their religious beliefs. After arresting them on charges of driving with a suspended license, operating a vehicle with an improper tag and failing to have proof of insurance, the officer sent a card and a letter to their home saying that their problems would continue unless they listened to the word of the Baptists.

Native American Sweat Lodges In Prisons

Accommodating the vast array of religious ritual requests from prisoners, now that the Supreme Court has upheld RLUIPA, will be a continuing challenge for correctional officials. Saturday's New York Times carried an interesting in-depth description of one accommodation that seems to be working-- the Native American Sweat Lodge at northern Connecticut's MacDougall-Walker Correctional Facility. Many states, though, are still concerned about the security problems posed by sweat lodges.

Tulsa Zoo To Add Creationism Display

The newest battleground for creationism may be the nation's zoos. The Dallas Morning News reported yesterday that, in response to pressure, the Tulsa, Oklahoma zoo board has voted to put up a creationism display along side its long-standing display on evolutionary science. A local architect who leads creationist tours of the zoo has helped design a prototype of the display-- all the verses from Genesis 1 to 2:3, illustrated with color photographs. But zoo officials are working on a broader display that will add other cultural viewpoints as well.

Limit On Changing MA Blaine Amendment Upheld By 1st Circuit

On Friday, in Wirzburger v. Galvin, the US 1st Circuit Court of Appeals rejected a series of constitutional challenges, including a Free Exercise challenge, to provisions in the Massachusetts state constitution relating to initiatives. Plaintiffs wished to use the initiative process to repeal Massachusetts' prohibition on state aid to religious schools (the state's version of the Blaine Amendment, Art. 46). While Art. 48 of the Massachusetts Constitution permits amendment by initiative, it excludes from that process any amendment to the prohibition on aid to religious schools and any amendment that relates to religion, religious practices, or religious institutions. The court found that those exclusions did not violate plaintiffs' freedom of expression or free exercise of religion nor did the exclusions deny plaintiffs equal protection of the laws.

Part of plaintiffs' argument turned on whether the challenged provisions were motivated by anti-religious animus. The court found there was widespread anti-Catholic prejudice behind the original Anti-Aid Amendment in 1855; but it was revised in 1917 with the support of most of the Catholic delegates to the Constitutional Convention. Then the prohibition on amending the Anti-Aid clause through initiative was passed with similar broad support. Nothing showed that this was motivated by Anti-Catholic animus.

New London Decision May Pose Special Risk for Churches

Last Monday, the US Supreme Court decided the case of Kelo v. New London, which upheld broad eminent domain powers of state and local governments. (4 Justices dissented.) Now some religious leaders are suggesting that the decision poses special threats for religious institutions. In a report carried Friday by Beliefnet, Jared Leland of the Beckett Fund for Religious Liberty suggested that because properties owned by non-profit institutions do not generate tax revenues, they will be particularly attractive targets for local governments to take for economic redevelopment.

Judge Questions EEOC Religious Discrimination Consent Decree

On June 13 the video rental chain Blockbuster agreed with the EEOC to a consent decree in a case charging that a Blockbuster manager in Scottsdale, AZ, had refused to permit an Orthodox Jewish employee wear his yarmulke at work. The store must pay a $50,000 penalty and modify its employee handbook and operating procedures. So far, this seems unremarkable. But, according to yesterday's East Valley Tribune, the federal judge who signed the consent decree was hesitant to do so, suggesting that under the 1985 US Supreme Court case of Estate of Thornton v. Caldor, Title VII of the 1964 Civil Rights Act as applied here might be unconstitutional under the Establishment Clause. But the EEOC attorney involved said that the 1985 case involved a statute that did not have exceptions for accommodations that unduly burden the employer.

Op Ed: US Senate Bill Gives Native Americans Religious Veto

In a Seattle Times op-ed today, University of Tennessee Anthropology Professor Richard L. Jantz calls attention to an upcoming hearing before the US Senate Indian Affairs Committee on Senate Bill 536 (Sec. 108). It will amend Native American Graves Protection and Repatriation Act (NAGPRA) to give Native American tribes broader control over pre-historic human remains found in the United States. According to Prof. Jantz, the amendment "would automatically give tribes the authority to control all evidence that may contradict their particular religious beliefs and give tribes complete veto power over scientific research on those remains." Those supporting the amendment claim that provisions in the Act limiting tribes' control to remains with which they can show a cultural affiliation will prevent the problem. Dr. Jantz disagrees. The amendment would codify an interpretation that the government unsuccessfully argued for in Bonnichsen v. US, a 9th Circuit Court of Appeals Case decided act year.

Ohio Bill Calls For Posting Mottos Mentioning God In Schools

On Tuesday, in another try to find ways to post references to God in school classrooms, the Ohio House of Representatives passed House Bill 184 and sent it on to the Ohio Senate. The bill provides that if a reasonably sized copy of the US motto"In God We Trust", or the Ohio motto "With God, All Things Are Possible", is donated to a school district, or if money is donated to purchase copies, the district must accept the donation and display the motto in a school classroom, auditorium, or cafeteria. By the way, in 2001, in ACLU v. Capitol Square Review & Advisory Bd., the federal 6th Circuit Court of Appeals (en banc) upheld Ohio's official motto against an Establishment Clause attack.

Book Review

Findlaw today carries a book review by Noah S. Leavitt of two books on church-state issues, Marci Hamilton's God vs. The Gavel and Kent Greenawalt's Does God Belong In the Public Schools?

Copyright Used To Attempt To Silence Criticism of Religious Prophecies

Can copyright laws be used to stifle legitimate criticism of a religion's beliefs? A press release today from Watchtower Whistleblower traces attempts by the Watch Tower Bible and Tract Society of Pennsylvania to shut down a website that carried quotes from past Jehovahs Witness publications in order to show that Witness' prophecies had not come true. After halting operations for a few days last month, the website, http://quotes.watchtower.ca is back in operation, at least for the time being.

Taiwan To Regulate Religious Release of Animals

Expanding on their religious duty to save any animal that is trapped, it has become a custom in China for Buddhists to buy various animals and then free them in a religious ceremony in order to bring good fortune. This practice has caused increasing ecological and environmental problems. Today, CNA News reports that in Taiwan, the Cabinet-level Council of Agriculture has proposed new regulations on freeing animals for religious purposes that will conserve the island's ecological system. Scientists and conservationists have become increasingly concerned about the 200 million animals that are released in Taiwan each year. Problems include both the inability of captive-bred animals to survive and damage caused by the introduction of non-native species.

Prisoner's Claim For Lost Religious Items Permitted To Continue

In Crump v. May, 2005 U.S. Dist. LEXIS 12013 (D.DE, 6/16/2005), the federal district court in Delaware has permitted a prisoner to proceed with his claim that while being moved between prison facilities, his Koran and Kufi were taken and never returned to him. It held that this raised a First Amendment Free Exercise claim, while the negligent loss of his jewelry and personal items did not. Claims as to loss of non-religious items were dismissed as not raising a due process issue; the appropriate remedy was an action in state court.

In Britain: Can Religious Belief Be Invoked To Refuse To Trim Trees?

Claims for religiously-motivated exemptions from general regulations take many forms. This report comes from yesterday's London Daily Mail via Beliefnet. In Gosport, Hampshire in England, rules under Britain's Anti-Social Behaviour Act give local authorities the power to order homeowners to trim back trees and hedges over 6 and one-half feet tall if they obstruct a view or block out light. Trina Horey is refusing her neighbor's demand that she cut back her 15 foot-high conifer trees, citing religious beliefs. She says she cannot trim the conifers without getting the trees' permission first. "As a pagan, I don't believe in harming living trees. We have to ask its permission to prune a tree and we never rip it out from the root."

Air Force Academy Investigation Report Issued

The special team headed by Lt. Gen. Robert A. Brady, selected by the Air Force to look into problems of religious intolerance at the Air Force Academy, filed its report today. A release issued by the Air Force describes some of the report's findings: a lack of operational guidance on what is appropriate, the failure of the Academy to address issues of religious accommodation, and the youth and inexperience of the student body. The Air Force has promised to release the full text of the report, and this posting will be updated to link to it as soon as it is available.

UPDATE: Now available online-- (1) Cover Letter Transmitting Report; (2) the 100-page Report of the Headquarters Review Group Concerning the Religious Climate at the U. S. Air Force Academy; and (3) Summary of Complaint Analysis Against Brig. Gen. Weida.

NJ Anti-Discrimination Law Exempts Religious Colleges

A New Jersey Court of Appeals held today that Seton Hall University, a Catholic college, could deny recognition to a gay and lesbian student group on the ground that recognition is inconsistent with the teachings of the Catholic Church. In the full opinion in Romeo v. Seton Hall University , the court held that New Jersey's Law Against Discrimination exempts from its provisions "any educational facility operated or maintained by a bona fide religious or sectarian institution". It also rejected waiver and breach of contract claims put forward by the student group. A report on the decision is in today's Star-Ledger. (Thanks to Steven Sholk for the lead.)

Australian Pastors Ordered To Apologize For Vilifying Islam

In Australia, the Victorian Civil and Administrative Tribunal has just issued a 140-page opinion (full text) and ordered a Remedy (full text) in the case of Islamic Council of Victoria v. Catch the Fire Ministries. According to a report today from News.com.au, the suit was the first to be heard under the Racial and Religious Tolerance Act of 2001. Plaintiffs alleged that two pastors had made statements disparaging Islam in a speech, a newsletter and on a website. The lengthy statements included claims that Islam was inherently violent and that Muslims were planning to impose their faith on Australia. The court ordered the Pastors to publish an apology in specified newspapers, in their newsletter and on their website. The Remedy order set out the text of the required statement. It also requires the Pastors to agree that they will not make similar statements in the future. At least one of the defendants, viewing this as a freedom of speech issue, says he would rather go to jail than apologize. The case is being appealed to the Supreme Court of Victoria.

Md. Federal Trial Judge Upholds 10 Commandments Monument

Just days before the US Supreme Court is expected to rule on the constitutionality of placing the Ten Commandments on public property, a federal district judge in Baltimore upheld a Ten Commandments monument in a city park in Frederick, Maryland. In this case, in the face of a challenge to the monument in 2002, the city had sold the monument and the strip of park land on which it stood to the Fraternal Order of Eagles. According to a report in today's Baltimore Sun, Judge Quarles opinion held that no reasonable observer, aware of the history and context, would see the monument as a government endorsement of religion.

UPDATE: The full opinion in Chambers v. City of Frederick is now available.

President Addresses Southern Baptist Annual Meeting

Yesterday, President Bush addressed the Southern Baptist Convention Annual Meeting by satellite from Washington. The meeting is being held in Nashville, TN. The text of his full remarks, as well as a video of his presentation, are available online from the White House website. His speech included the following call for Congressional enactment of his faith-based initiative:

"Because faith-based groups should never have to forfeit their religious liberty to get federal dollars -- and that's an important concept -- we want your help, we want your love, but at the same time, you do not have to forget the mission of faith or ignore the mission of faith that calls you to action in the first place. And that's why the executive order I signed should be codified into federal law. Congress needs to pass charitable choice legislation to forever guarantee equal treatment for our faith-based organizations when they compete for federal funds."