Trial Begins On Faith-Based Prison Program

The Des Moines, Iowa Register reports that a trial begins today in U.S. District Court in Des Moines raising a Establishment Clause challenge to an Iowa prison treatment program based on Christian-oriented values. The program, the InnerChange Freedom Initiative, was established at the Newton state prison in 1999 by Prison Fellowship Ministries, founded by former Watergate figure Charles Colson. The Iowa Legislature has appropriated $310,000 from the Healthy Iowans Tobacco Trust for a "value-based treatment program" at the Newton prison. Former Virginia Attorney General Mark Earley, president of Prison Fellowship Ministries, said the state money is used for nonreligious purposes, such as vocational and general education programs, and for administrative costs. Private money covers other expenses, he said.

Native American Prisoner Can Proceed On Sweat Lodge Claim

In Prayer Feather Farrow v. Stanley (D NH, Oct. 20, 2005), a New Hampshire prisoner who is a practicing member of the Lakota Sioux Nation and the Native American Sacred Circle claimed eight separate violations of his right to practice his religion: (1) preventing him from possessing tobacco for prayer and ceremonial use; (2) denying him access to medicines and herbs for ceremonial use; (3) prohibiting him from engaging in daily group prayer with other members of the Sacred Circle; (4) failing to supply him with Native American foods on religious holidays; (5) refusing to allow him to wear feathers at all times; (6) barring the various Native American nations represented within the Sacred Circle from meeting as sub-groups; (7) failing to employ a Native American consultant to shape the DOC's religious policies; and (8) denying him access to a sweat lodge for ritual purification.

Plaintiff claimed that prison officials violated RLUIPA, the First Amendment and the Equal Protection Clause of the 14th Amendment. The federal district court granted summary judgment to state prison officials on all but one of the claims. On plaintiff's claim that he has been denied access to a sweat lodge for ritual purification, the court denied the state's motion for summary judgment and permitted the claim to move to trial. The court held, however, that defendants are entitled to qualified immunity on plaintiff's claim for monetary damages.

Newly Available Publications

The table of contents of the Summer 2005 issue of the Journal of Church and State is now available online. The issue's editorial and country notes are also available in full text online. The issue appeared in hard copy in late August.

Walter J. Walsh, The Priest-Penitent Privilege: An Hibernocentric Essay In Post Colonial Jurisprudence, 80 Indiana Law Jour. 1037-1089 (2005). [Thanks to SmartCILP].

Dispute Over Display of Crucifix In Italian Courtroom

In northern Italy, in the town of Carmerino, a judge is refusing to hold court until there are some concession on church-state issues. The Australian reports today that Judge Luigi Tosti objects to the crucifix hanging in his courtroom. While Tosti was baptized as a Catholic, he objects to favoring one religion. He either wants the crucifix taken down, or a Jewish candelabrum displayed alongside it. Judge Tosti says: "In public offices, the cross is the only theological symbol on display. That's like saying white people can come in and the blacks stay outside. It's a form of religious discrimination."

The same kind of issue has arisen elsewhere in Italy. In 2003, Muslim activist Adel Smith tried to get a crucifix removed from his son's classroom. An appeals judge ruled that the cross could stay, as a symbol of Italy's cultural heritage and values. Subsequently Smith engaged in self-help. When nurses treating his mother in a public hospital refused to take down the crucifix above her bed, he tossed it out the window.

UPDATE: On Nov. 18, Judge Tosti was convicted of failing to carry out his official duties and was sentenced to seven months in jail, according to the Associated Press. An appeal is planned.

Intelligent Design Proponents Present Effective Witnesses

The Washington Post carried an interesting article on Friday on the progress of the trial in Kitzmiller v. Dover Area School District-- the case involving the propriety of teaching about Intelligent Design. (See prior posting.) The article, by Post reporter Michael Powell, was titled "No Easy Victory Ensues In Legal Battle Over Evolution". In it, Powell says: "[B]ringing a legal case against intelligent design is a tricky business. The small band of scientists who publicly support intelligent design are able debaters, and, as became clear when [biochemistry professor Michael J.] Behe took the stand, they do not sound remotely like William Jennings Bryan, the lawyer who eight decades ago in Tennessee invoked biblical authority to decry evolution."

Editor Sentenced For Blasphemy In Afghanistan

Reuters reports today that an Afghan court has sentenced the editor of a women's magazine to two years imprisonment for writing a blasphemous article against Islam. In his article, Mohaqiq Nasab questioned the need for harsh Islamic punishment for apostates, thieves and others. Under Islamic law, blasphemy is punishable by death. Nasab can appeal the sentence.

Teheran Paper Decries Christian Missionaries

The Islamic Republic News Agency reports on an editorial in Sunday's Teheran Times that decries the activities of Christian missionaries throughout the Islamic world. The editorial contended that Fundamentalist evangelists are backed in the United States by many politicians and millions of dollars of donations. It said that the main reason of providing help for the needy in Muslim areas "is not to give humanitarian assistance but to gain sympathy and trust, which are needed for missionary activities." In many Muslim countries there are no specific laws that prohibit Christians from conducting missionary activities. The paper said such activities, however, are forbidden by the shariah (Islamic law).

Religion and Zoning In Rockland County, NY

The New York Times today focuses on Ramapo, New York in Rockland County. There is rising tension between Orthodox Jews in the community and other groups. At the center of current tensions are a rezoning plan for an area called Patrick Farms which will allow homes to be built on one acre instead of two. But this is part of a larger battle against ultra-Orthodox Jews and politically connected developers connected to them. Other groups claim they have a disproportionate influence in government. These residents point to neighboring Hassidic Jewish towns such as New Square, and fear that this is what will become of Ramapo. But Marlaine Paone, a leader of an effort to form a village called Ladentown to better control growth in Ramapo, says: "It's about development, about the environment, it's not about religion. I'm Jewish. Two-thirds of my organization is Jewish."

Indiana School Attempts To Accommodate Muslim Children

At last week's Porter Township, Indiana school board meeting, a number of parents raised objections to the way in which Porter Lakes Elementary School is attempting to deal with the enrollment for the first time of two Muslim children. The NWI Times today reports that the school set aside a room in which the Muslim children could pray, rather than forcing them to go to a corner of the cafeteria where other students might laugh at them or humiliate them. Some parents argued that this was unjustified favoritism. However, David Emmert, general counsel for the Indiana School Board Association, said that this kind of religious accommodation is required by law. The school also held a mini-assembly for the second and third grade about Muslim culture. The school defends this under it curriculum standards that call for discussion of different cultural traditions. Some parents objected that this amounted to teaching of religion because Islam was discussed as being intertwined with Muslim cultural traditions.

Some Jewish Groups Oppose DHS Funding for "Hardening" Terror Targets

UPI yesterday reported that the Union for Reform Judaism has Establishment Clause concerns over a plan by the Department of Homeland Security to provide funds for New York area non-profits (including religious institutions) that are high-risk terrorist targets to "harden" their defenses. The plan will provide up to $75,000 for each institution, including synagogues and Jewish day schools, to build such things as concrete barriers and blast-resistant windows. A total of $7.3 million will be provided to 100 non-profit group. Other Jewish leaders, however, do not oppose the funding, which is equally available to non-religious non-profit institutions.

Repeal of British Blasphemy Laws Urged

Ekklesia yesterday reported that the former Archbishop of Canterbury, Dr George Carey, has said that the UK’s blasphemy laws – which protect only Christians – are redundant and should go. Ekklesia, a UK Christian think tank agrees, and the Church of England is unlikely to oppose the proposal if other protections are in place. Ekklesia says that granting special privileges to Christianity does not help it, and restricts the free flow of argument needed on religious issues. Originally, the government had proposed an end to the blasphemy laws as part of its proposal to enact Britain's controversial Racial and Religious Hatred bill which is now also before the House of Lords. (See prior posting.) Subsequently, the government changed its mind. The proposal to repeal the blasphemy laws is being introduced in the House of Lords by Lord Avebury, a respected and long-standing campaigner for human rights, refugees and freedom of speech.

Federal Legislation Introduced To Aid Schools Educating Storm Victims

The Associated Press reported that on Thursday, Senate education leaders proposed a bi-partisan hurricane relief package containing compromise provisions on aid to parochial schools that take in storm victims. It would allow both public and private schools to seek reimbursement of up to $6,000 for each displaced student they serve, or $7,500 for each student with disabilities. The federal money would flow through public school districts, which would then be charged with making payments to the eligible private schools.

The bill would ban public money from being spent for "religious instruction, proselytization or worship." However, critics of school voucher programs said they favored a model in which public school districts purchase services from private schools but retain oversight over the money. Rev. Barry Lynn, executive director of Americans United for the Separation of Church and State said, "I don't see the difference between this program and a voucher program. This gives millions of dollars in virtually unrestricted cash grants to religious schools."

In the House of Representatives this week, leaders introduced a bill that was much closer to a pure voucher system. It would create accounts for parents of children affected by the hurricane, worth up to $6,700 per student that could be used to attend a public or private school for one year.

9th Circuit Arguments On Islam Role-Playing In Schools

The New York Sun reported yesterday on arguments in the U.S. Ninth Circuit Court of Appeals on Wednesday. Two Christian families from Contra Costa County, California appealed from a 2003 decision. They had charged Byron, California school officials with violating the First Amendment's Establishment Clause. In order to acquaint seventh graders with Islam, Excelsior Elementary School had students role play. They were to wear Islamic dress, recite phrases from the Koran, and mimic the fasting associated with the observance of Ramadan. They also engaged in a "race to Mecca". An attorney for the families, Edward White III, told the Court that during the eight-week unit on Islam, religious teachings were described as "facts" and students were instructed to wear name tags that included the religion's star-and-crescent imagery. "All of these actions are crossing the line," said Mr. White, a lawyer with a Michigan-based Thomas More Law Center.

Fired Teacher Claims Religious Discrimination

The Deseret News yesterday reported on the ongoing Utah jury trial in which South Sevier High School teacher Erin Jensen claims that her termination as a "provisional" teacher and the school's refusal to re-hire her resulted from discrimination against her on the basis of gender and religion. Rumors were circulating labeling Jensen, who is not a practicing member of the dominant LDS Church, a "witch" and a "coffee drinker". Parents of some of her students complained to the school's principal about Jensen "giving ideas" to students. They said she discussed "different belief systems" and that at one point she swore in class. Jensen's attorneys have pointed to school board meeting minutes that contain comments from parents that Jensen practices witchcraft, chooses Halloween as her favorite holiday and "prefers the dark side." Later, those minutes were changed to delete those comments.

Ohio Amish Campaign For Votes Against Zoning Restrictions

In Geauga County, Ohio, the Amish community has taken an unusual step into the political arena. Normally their religious beliefs require them to keep their distance from outsiders. The Associated Press reported yesterday however that the Amish say a Huntsburg Township ordinance restricting the size of home-based businesses prevents them from opening woodworking shops. These shops allow them to continue to work alongside their children, one of the tenets of the Amish lifestyle. Unwilling to pursue their objections through the courts, three Amish men successfully circulated a petition to put the zoning issue on the ballot. Now they are campaigning to urge voters to vote to eliminate the restrictions in the November 8 election.

Egyptian Scholars Warn Against Changes To Constitution

Egypt's Constitution (Art. 2) provides "Islam is the official religion of Egypt and Islamic Shari'ah is a main source of legislation." Islam Online yesterday reported that a number of secular, leftist and Coptic thinkers have argued that this provision should be eliminated. In response, 110 Egyptian scholars and thinkers have signed a statement warning that "Such calls put at stake social peace in Egypt". The statement argues that "a foray of groundless criticism of Islam and Islamic Shari'ah is taking place, under foreign interference...."

NY's Highest Court Upholds Restrictions On Church's Expansion

Yesterday, New York's highest court, the Court of Appeals, decided Pine Knolls Alliance Church v. Zoning Board of Appeals of the Town of Moreau. The court upheld the Zoning Board of Appeals decision that restricted a church's expansion by preventing its constructing a second driveway when the expansion could be accomplished in another manner that was less intrusive to neighboring properties. Yesterday's Newsday reported on the church's argument that prior law precluded the zoning board from requiring the church to prove that it had a need for the second road. However, the Court of Appeals concluded "there was no discussion in the ZBA determination concerning whether the Church needed its comprehensive expansion plan...
Rather, the inquiry was whether the proposed expansion could be accomplished in a manner that mitigated the negative impacts on the surrounding community."

Rep. Jones Urges Executive Order Lifting Restrictions on Military Chaplains

The Washington Times today reports that Rep. Walter B. Jones, a North Carolina Republican member of the House Armed Services Committee is circulating a letter among House colleagues to send to President Bush urging him to issue an executive order freeing chaplains in the military to pray according to their faiths. Rep. Jones says that Christian military chaplains are being told to use general terms when they pray publicly, and to not mention the name of Jesus. Army spokeswoman Martha Rudd said that branch's chaplains may speak freely if they are addressing a service of their specific faith, but in general military assemblies or services they should take a more general approach in order to show respect for all faiths.

Changes Proposed For British Religious Hatred Bill

Next week, Great Britain's controversial Racial and Religious Hatred bill will face committee hearings in the House of Lords. (See prior postings 1, 2, 3). BBC News reported today that opponents of the bill have now proposed compromise language to insure that commentators and comedians can still ridicule and criticize religion. The proposed amendments would provide that no one could be convicted under the law unless it is proved they intended to stir up hatred; that only threatening words would be banned by the bill, not those which are only abusive or insulting ; and that the law would not restrict discussion, criticism of expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or beliefs. Liberal Democrat peer Lord Lester said: "The purpose of these amendments is to take the rot out of a rotten bill."

Appellate Court Permits Kindergartener's Claim On Jesus Poster To Go To Trial

In Peck v. Baldwinsville Central School District, 2005 U.S. App. LEXIS 22368, the Second Circuit Court of Appeals on October 18 affirmed the trial court's dismissal of plaintiff's Establishment Clause claim, but vacated and sent back for trial plaintiff's First Amendment expression claim. The case grows out of a parents' challenge to the school's refusal to display their kindergarten child's environmental poster that included a picture of Jesus.

The court said: "the district court overlooked evidence that, if construed in the light most favorable to Pecks, suggested that Antonio's poster was censored not because it was unresponsive to the assignment, and not because Weichert and Creme believed that JoAnne Peck rather than Antonio was responsible for the poster's content, but because it offered a religious perspective on the topic of how to save the environment." It went on to say: "however, we do not foreclose the possibility that certain aspects of the record might be developed in such a manner as to disclose a state interest so overriding as to justify ... viewpoint discriminatory censorship. For example, The District has proffered its interest in avoiding the perception of religious endorsement as a rationale for not including Antonio's full poster in the environmental assembly." Yesterday's New York Newsday reported on the decision.

Government Reverses Its Position On Deportation of Persecuted Chinese Christian

As reported in an earlier posting, in August the Fifth Circuit Court of Appeals upheld a decision of the Board of Immigration Appeals which refused to permit a Chinese Christian who claimed religious persecution to remain in the United States. The controversial decision held that the petitioner had been punished at home for violating China's law on unregistered churches and not because of his religion. But now the government has had a change of heart. Jubilee Campaign, an international human rights organization, worked with Congressional officials and others to get a reversal of policies within the Department of Homeland Security and the Justice Department. Yesterday Agape Press reported that the efforts have been successful.

On October 4, in a surprise move, DHS filed a "Motion to Reopen and Withdrawal of Appeal" with the Board of Immigration Appeals. Then the DOJ's Board of Immigration Appeals reinstated the original decision of the immigration judge that had allowed respondent Li to stay in the United States.

Will City Pay Plaintiff's Legal Fees In Prayer Case?

Now that the U.S. Supreme Court has denied certiorari in Great Falls, SC v. Wynne, in which the Court of Appeals banned explicitly sectarian prayers at town council meetings , a battle is looming over legal fees. A federal court last month ordered Great Falls to pay $53,000 in legal fees that Darla Wynne incurred in her four-year fight over the prayers. The Rock Hill, SC Herald reported earlier this week that Town Council meets next Monday, but its agenda does not include action on the federal court order. If Great Falls does not pay this week, Wynne's lawyer, Herbert Buhl, said he will ask the federal court to enforce the order and send federal marshals to seize assets so he can collect.

AZ Police Suspended For Polygamy

The Arizona Peace Officer Standards and Training Board voted unanimously Wednesday to revoke the certifications of two Colorado City, Arizona police officers accused of practicing polygamy, according to yesterday's San Diego Union-Leader. Colorado City is dominated by Fundamentalist Church of Jesus Christ of Latter Day Saints that encourages polygamy, and this is the latest of many enforcement steps against the FLDS Church. (See prior posting.) A predecessor agency in 1990 had refused to decertify Colorado City's then-marshal on the basis of his practicing polygamy, instead deciding that it merely amounted to cohabitation.

NJ Jail Ends Kosher and Halal Meals

The Passaic County, New Jersey jail has stopped serving halal and kosher meals to inmates, according to a report yesterday from the Bergen County Record. The change comes during Ramadan and as the jail is being audited by the Department of Homeland Security's Office of the Inspector General after immigration detainees complained of poor conditions and abuse. An internal jail memo dated Monday stated, "As of 10/17/05 there will be no more kosher meals. The religious diet tray will be a vegetarian diet tray." Federal immigration detention centers are required to provide food that is prepared according to religious customs. The jail had been ordering prepackaged kosher and halal meals, but stopped because it was too expensive. The sheriff's office said that the jail will now make its own halal and kosher meals by adding two layers of plastic wrap to the tray. But inmates said the two sheets of wrap and absence of meat does not meet their religious standards.

Review Of Book On Islamic Law In Secular Asian Courts

The Hindu yesterday carried a review of Cases in the Muhammadan Law of India, Pakistan and Bangladesh, by Asaf A.A. Fyzee, edited and revised by Tahir Mahmood. Oxford University Press issued the book last year. The book looks at interpretation of Islamic law by secular courts in India, Pakistan and Bangladesh in 19 different subject areas. The reviewer points out that Islamic scholars differ among themselves on the degree of authority they give to interpretations of Islamic law by modern secular courts.

FEMA To Aid Rebuilding Religious Social Service Facilities, But Not Churches

The Washington Post reports today that the federal government will help rebuild parochial schools, nursing homes, assisted-living facilities, community centers and similar religious institutions destroyed by Hurricane Katrina. But it will not pay for reconstruction of churches or other houses of worship. James Towey, director of the White House Office of Faith-Based and Community Initiatives, announced in a conference call to reporters that religious groups that run "essential, government-type facilities" can apply for reconstruction grants from FEMA. But facilities used primarily for inherently religious activities are not eligible. Before receiving federal funds, religious groups must exhaust private insurance coverage and apply for disaster loans from the Small Business Administration. The reaction to the announcement from religious groups was mixed. This follows an earlier announcement that FEMA would reimburse churches and other religious groups that shelter and feed hurricane victims at the request of state or local officials. (See prior posting.) [Thanks to Marty Lederman via Religionlaw for the information.]

Civil Protection Order Does Not Violate Free Exercise

In Rogers v. Johnson-Norman, 2005 D.C. App. LEXIS 517 (DC Ct. App., Sept. 26, 2005), the District of Columbia Court of Appeals held that a provision in a civil protection order against an alleged stalker does not deprive him of his constitutional right to the free exercise of religion. The order requires the appellant to stay away from the church that the complaining witness attends in Maryland.

Settlement Offer In Suit Against Air Force Academy

The plaintiff in a law suit filed recently against the Air Force Academy challenging prosetylization of cadets has offered to settle. (See prior posting.) The Associated Press reported yesterday that Sam Bregman, the Albuquerque attorney representing the plaintiff who is an Academy graduate and father of a current cadet, faxed a letter to Mary L. Walker, the Air Force's top lawyer in Washington, making the offer. Bregman asked the Air Force to agree to a stipulated order in federal court that no one in the Air Force, including a chaplain, will "in any way attempt to involuntarily convert, pressure, exert or persuade a fellow member of the USAF to accept their own religious beliefs while on duty.'' He also asked that the service not permit or advance one religion over another, or over no religion.

Ark and Torah Added To Pentagon Chapel

In 2002, in the Pentagon, a chapel was built at the site where American Airlines Flight 77 hit the building on Sept. 11, 2001. The Pentagon Memorial Chapel was dedicated in memory of the individuals who lost their lives there on 9-11. Now the Chapel has a new addition to it. On Monday, The Jewish Press reported that a Torah scroll is now housed in an ornate Israeli-built ark in the Chapel. A dedication ceremony was held on September 26. Rabbi Andrew Cohen, who until recently served as chaplain at the Pentagon chapel, said that the Torah scroll will accommodate the needs of Jewish servicemen and officials at the Pentagon when prayer services may be held in the Chapel. The Aleph Institute, a national Jewish organization devoted to Jews in the military and in prisons obtained a donation for the ark and Torah scroll from the generous donor Yaakov Sopher.

Interview With Seamus Hasson On Religious Liberty

Tuesday's National Review Online carries an interesting interview with Kevin Seamus Hasson, chairman of the Becket fund for Religious Liberty and author of the new book, The Right to Be Wrong: Ending the Culture War Over Religion in America. Here are two excerpts, but the full interview is worth the read.

The biggest threat [to religious liberty in the U.S.] comes from people who think that religious truth is the enemy of human freedom — that the only good religion is a relativist one.... Practically speaking, the threat comes from lawyers, judges, and political elites who think that nativity scenes and menorahs are like secondhand smoke — something that decent people shouldn't be exposed to in the public square.... The second biggest threat is believers who let themselves be goaded into accepting the same false dichotomy between truth and freedom, only on the other side. They fall into the secularists' trap and think that in order to defend the truths of faith they have to oppose the whole idea of human freedom. Like the bureaucrats in a Cobb County, Georgia, jail who tried to prevent Catholic priests from ministering to prisoners because they were afraid some Protestant prisoners would decide to convert.

Discovery Institute Files Amicus Brief In Kitzmiller

The Center for Science & Culture reports that on Monday the Discovery Institute, the leading think tank on intelligent design, filed an Amicus Curiae brief in the Kitzmiller v. Dover Area School District urging the judge uphold the constitutionality of teaching Intelligent Design. Monday marked the beginning of the defense's presentation of evidence in the case. Dover School Board has required to read to students a statement notifying them about the existence of the theory of intelligent design as an alternative to the theory of evolution. (See prior posting.)

The 34-page amicus brief (full text) argues that there are many secular purposes for teaching the theory of Intelligent design, and that teaching it advances science education and does not primarily advance religion. The brief also has 2 Appendices, one setting out the revised expert report of Stephen C. Meyer, PhD, and the other claiming to document that Intelligent Design makes no claims about the identity or nature of the intelligent cause responsible for life.

New Data On Religiously Motivated Hate Crimes In U.S.

The FBI has recently released its report on Hate Crime Statistics for 2004, collected under the 1990 Hate Crime Statistics Act. The report shows an increase in hate crimes. It says that 16.4% of the reported hate crimes were religiously motivated. Those broke down as follows: There were 1374 total incidents of religiously motivated hate crime. Of these, 954 were anti-Jewish, 57 were anti-Catholic, 38 were anti-Protestant, 156 were anti-Islamic, 128 were anti-other religion, 35 were anti-multiple religions or groups, and 6 were anti-Atheism/Agnosticism. The Anti-Defamation League today issued a press release welcoming the report and calling for increased efforts to address the problem of hate crimes.

In Philippines, Senator Claims Permitting March Would Violate Establishment Clause

The Philippine Constitution has an Establishment Clause virtually identical to that in the U.S. Constitution. The Philippine Star today reports on a controversy over the meaning of that clause growing out of a political demonstration held last Friday. Under Philippine law, marches and demonstrations are limited to the location in the rally permit granted by the government. A number of Catholic bishops and priests were part of the group that violated that requirement and were hosed down by police while marching peacefully from Plaza Miranda in Quiapo, Manila in what they called a "prayer rally". Philippine Sen. Miriam Defensor Santiago criticized the marchers saying "The Catholic religion does not possess the governmental power to determine the venue of any rally." Because of the Establishment Clause, Santiago said that the attempt of the protesters to change the authorized venue for the rally by using two bishops, a priest and a few nuns constituted excessive entanglement. "It would turn over the traditional governmental power to regulate public assemblies to a few Catholic bishops and religious," she added. "No religion can serve to camouflage law disobedience by invoking freedom of religion. That would be creeping theocracy," Santiago said.

Indian Government Seeks Church Assistance In Health Initiative

The government of India seems to have embarked on its own version of faith-based initiatives, according to a report in today's Asia News. Anbumani Ramadoss, Health and Family Welfare Minister, during a speech on selective abortions and birth control, said that the government wishes to collaborate with leaders of Catholic and other religious communities to control disparity in the gender ratio and to upgrade the country’s health system. Fr. Alex Vadakumthala, secretary of the Health Commission of the Catholic Bishops’ Conference commented, "The Indian government has launched a programme called Rural Health Mission in which they ask for the collaboration of the Church to improve health services in villages. We have said very clearly that we intend to collaborate with the government and non-governmental organizations only if Catholic morals and ethics are respected."

Cartoonists and Miers' Religious Beliefs

From today's New York Times:

Christian Exodus Movement Attracts Few Supporters

The Christian Exodus Movement seems to be losing steam. The Greenville, SC News reports today that only 94 people attended the group's convention this weekend. The 2-year-old group seeks to convince enough like-minded people to move to South Carolina so it can take political power and transform government to reflect Christian values. (See prior posting.) Only six families, made up of 14 adults and 20 children, have moved to Christian Exodus' two target counties, though the group's leaders say it is getting unexpected support from local residents. Founder Corey Burnell said that the group's first candidates will probably run next year with a 10-year goal of seizing the Legislature. But its initial focus will be on county and city councils, sheriff's races, and school boards. He also indicated that the group hopes to make property ownership a prerequisite for voting. Burnell also said that with national power, Christian Exodus would seek to determine whether the 14th, 16th and 17th amendments to the U.S. Constitution were "ratified properly, and if not, put them up for proper ratification."

Court Upholds Size Limits For Church Building

In Vision Church v. Village of Long Grove, 2005 U.S. Dist. LEXIS 23493 (ND Ill., Oct. 7, 2005), an Illinois federal district court rejected Vision Church’s challenge to the denial of its application for a special use permit to allow construction of a church complex on its property. The Church, comprised mainly of America-born Chinese, projected that its membership would grow rapidly. However, the Village’s Public Assembly Ordinance limited the size of the Church’s building to 55,000 square feet, far smaller than the Church’s proposed building. The court rejected Establishment Clause, Free Exercise Clause, RLUIPA, Equal Protection Clause and other claims raised by the Church, and granted the Village’s motion for summary judgment on all claims.

First Edition of "The Bloudy Tenant" Discovered

A rare 1644 First Edition of Roger Williams, The Bloudy Tenent, has been discovered in the collection of the Rhode Island Historical Society according to a report in today’s Providence Journal. The book sets out Williams’ theories of religious liberty and freedom of conscience. It speaks of the need for a sturdy fence separating the sacred and the secular, and calls for an end to people being persecuted for their religious beliefs. Williams was banished from Massachusetts for his radical views. Karen Eberhart, the Historical Society’s Library Director, said that the newly discovered volume is in good shape because it was printed on paper made from cotton, rather than wood.

WI Governor Vetoes Bill Allowing Doctors Religious Objections

The Milwaukee Journal Sentinel today reports that Wisconsin Gov. Jim Doyle on Friday vetoed for the second time a bill that would have protected physicians, nurses and other medical professionals who refuse on moral or religious grounds to participate in medical procedures such as assisted suicide, euthanasia and the destruction of human embryos. The bill, A.B. 207, contained no exception for cases in which the patient’s health or life is in danger. Also there were no provisions to require the health care professional to advise patients of treatment options or to provide a referral for the patient. In his veto message, the Governor expressed special concern about the impact the bill would have in rural areas and said that the bill would put the political views of doctors ahead of the best interests of patients.

Christian Groups Urge Support For Digital TV Multicast Must-Carry Provision

Christian religious groups and Christian broadcasters are urging their followers to contact members of Congress to encourage them to support Multicast Must Carry in the Digital TV bill that is about to be introduced into Congress. This release by Trinity Broadcasting Network is typical. Last week the Christian Coalition of America held a news conference to explain the issue.

The Chairman of the House Committee on Energy and Commerce, Congressman Joe Barton, (R-TX), and Senator Ted Stevens, Chairman of the Senate Committee on Commerce, Science and Transportation are about to introduce digital television legislation. It is believed that the House Chairman opposes inclusion of a "Multicast Must-Carry" provision which would create the level playing field that religious broadcasters need in order to survive in the digital television environment.

The federal government's mandate for all television stations to convert from analog to digital technology has opened the door for broadcasters to offer more than one channel to their viewers. Conservative, faith-based and family friendly broadcasters will be able to offer up to six channels in each city that they operate in.... "Multicast Must-carry" is the only means for ensuring the ability of the Christian broadcasters to get these new channels on digital television.... The cable companies do not readily carry the Christian networks, so this "Multicast Must-carry" law will force cable and satellite companies to put these new faith and family networks on their service.

Dover Trial Drags On; Students Nonplused

The Dover Pennsylvania trial pitting proponents of intelligent design against those who argue that only evolutionary theory belongs in science classes drags on. The trial, challenging a statement questioning evolution that was to be read to all biology students, began on Sept. 26. (See prior posting.) Full transcripts of each day's testimony are available online, as is extensive coverage at Speaking Freely, a special blog set up by the ACLU of Pennsylvania. Meanwhile the York Pennsylvania Record this week interviewed a number of students in the Dover school district. They tend to have a bit more perspective, perhaps, than those more directly involved in the fray:

"It's only two sentences," said Tyler Shumaker, a ninth-grader. "It's a real short statement. It isn't going to kill anyone to listen to it." Though he doesn't believe the school should be teaching anything in the statement because he considers it religion, he said they can do what they want. He hasn't heard the statement yet, and he doesn't plan on opting out.

Megan Pfleiger, a 10th-grader, didn't opt out last year, and said, "I thought it was no big deal."

Jonathan Shreve, a senior who didn't hear the statement in class, said, "Personally, I think it's a lot over a little sentence. I know for evolution my class only spent five minutes on it."

Town Official Refuses To Remove "God Bless America" Banners

Yesterday, the Associated Press reported from Lindenhurst, New York, a Long Island town supervisor rejected requests to take down two signs reading "God Bless America". One of the signs is an 11-foot banner on the front of Babylon town hall reading "Thank You to Our Troops, God Bless America." The second, reading "God Bless America," is on one side of a two-sided sign that also serves as a community calendar. Babylon Town Supervisor Steve Bellone said, "God Bless America is practically our second national anthem and a sacred American motto. I am confident that our display of these signs is not offensive to the Constitution, and therefore I will not remove them."

PrawfsBlawg On Miers Nomination and Religious Issue

Over on PrawfsBlawg, Paul Horwitz has a long and interesting post on the role of religion in the Harriet Miers Supreme Court nomination. Here is his summary of his longer discussion:

Properly speaking, there is no religious test problem here; more broadly, events surrounding this nomination raise questions about transparency and cynicism and make clear that clumsy treatments of the intersection between religion and law are not the sole province of the left, or of the non-religious; and I am disappointed that the Becket Fund, which embraced a broad view of the Religious Test Clause where religion is a disqualification for judicial office, has not been equally liberal in its views of whether religion may permissibly serve as a qualification for judicial office.

Recent Publications Of Interest to Religion Clause Readers

Matthew J. Brauer, Barbara Forrest & Steven G. Gey, Is It Science Yet? : Intelligent Design, Creationism and the Constitution, Spring 2005 Washington Univ. Law Quarterly. [From Dispatches From the Culture Wars blog.]

Jay D. Wexler, Intelligent Design and the First Amendment: A Response, Washington University Law Quarterly (forthcoming). [from SSRN]

Victor C. Romero, An "Other" Christian Perspective on Lawrence v. Texas, Journal of Catholic Legal Studies, Vol. 45, No. 1, 2005. [from SSRN]

An updated version of Steven H. Sholk's article, A Guide to Election Year Activities of Section 501(c)(3) Organizations, is in Practising Law Institute's course materials for "Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings 2005".

Biblical Quote In Courtroom Not Grounds For Reversing Death Sentence

In Malicoat v. Mullin (US Ct. App., 10th Cir., October 11, 2005), the 10th Circuit Court of Appeals rejected a claim of ineffective assistance of counsel raised by a habeas petitioner who had been convicted of murder and sentenced to death. One of petitioner's claims was that his counsel on direct appeal had been ineffective for failing to argue that a carving in the courtroom bearing the Biblical quotation "An Eye For An Eye And A Tooth For A Tooth" deprived him of a fair trial. Petitioner argued that display of the maxim throughout the trial amounted to an Establishment Clause violation. The Court of Appeals held that trial judge's refusal to cover the inscription was not a structural error, and that, as a result, counsel's failure to advance a structural error argument on direct appeal did not constitute ineffective assistance of counsel to petitioner.

Suit Claims Pro-Evolution Materials Online Violate Establishment Clause

In a reversal of usual roles, yesterday the Pacific Justice Institute announced that a parent, Jeanne Caldwell, is filing a federal lawsuit against the University of California at Berkeley and the National Science Foundation over religious statements on the “Understanding Evolution” website that was created with more than $500,000 in federal funding to promote the teaching of evolution. The website directs teachers to statements by seventeen denominations and groups that adhere to the doctrine that there is no conflict between their religious beliefs and evolution. World Net Daily reported today that the website also suggests various classroom activities that use religion to promote the teaching of evolution. The lawsuit alleges that through the website, the state and federal governments are promoting religious beliefs to minor school children in violation of the First Amendment.

U.S. Report on China Finds Religious Freedom Problems

The U.S. Congressional-Executive Commission on China announced the release of its 2005 Annual Report on Oct. 11. The findings in the human rights report report express continued concern over religious freedom in China. In part, the Report said: "The Chinese government continues to harass, abuse, and detain religious believers who seek to practice their faith outside state-controlled religious venues. Religious believers who worship within state-controlled channels are subject to government regulation of all aspects of their faith. In 2005, the government and Party launched a large-scale implementation campaign for the new Regulation on Religious Affairs to strengthen control over religious practice, particularly in ethnic and rural areas, violating the guarantee of freedom of religious belief found in the new Regulation."

Congress created the Commission in 2000 to monitor human rights and the development of the rule of law in China. It is made up of nine Senators, nine House members and five senior Administration officials appointed by the President. The Commission chairman in Nebraska Senator Chuck Hagel.

Ontario Labor Board Upholds Employee's Religious Exemption From Joining Union

Today the publication, Canadian Employment Law Today, discusses an interesting case decided earlier this year by the Ontario Labor Relations Board. Under Canadian labor law, the Labor Relations Board can exempt a worker from a requirement to join a trade union if the worker objects to doing so on religious grounds. This was the first application of the exemption provision to the construction industry. At issue was the sincerity of the worker's beliefs. The Board found that the employee adequately proved that he was entitled to an exemption.

The employee belonged to a fellowship of believers in Jesus Christ, called the Brethren. A central tenet of theirs is that the Bible permits only one assembly-- the believers of Christ. Membership in a union and all other associations violates this tenet of "separation". The employee also believed in the principle of master and bondsman, which also conflicts with belonging to a union. He owed a loyalty to his employer which would be disturbed if he belonged to a union and it acted on his behalf. The principal requires a direct relationship without a union or any other body as an intermediary. To depend upon a union would detract from his belief that salvation is only through Jesus Christ.

The decision, available in full online is Allan v. I.B.E.W., Local 586 (June 15, 2005).

White House Continues To Emphasize Miers' Religious Beliefs

President Bush continues to emphasize Supreme Court nominee Harriet Miers' religious beliefs. Here is an excerpt from his exchange with reporters today.

Q Thank you, Mr. President. Why do people in this White House feel it's necessary to tell your supporters that Harriet Miers attends a very conservative Christian church? Is that your strategy to repair the divide that has developed among conservatives over her nominee?

PRESIDENT BUSH: People ask me why I picked Harriet Miers. They want to know Harriet Miers' background; they want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion. Part of it has to do with the fact that she was a pioneer woman and a trailblazer in the law in Texas. I remind people that Harriet Miers is one of the -- has been rated consistently one of the top 50 women lawyers in the United States. She's eminently qualified for the job. And she has got a judicial philosophy that I appreciate; otherwise I wouldn't have named her to the bench, which is -- or nominated her to the bench -- which is that she will not legislate from the bench, but strictly interpret the Constitution.

So our outreach program has been just to explain the facts to people. But, more importantly, Harriet is going to be able to explain the facts to the people when she testifies. And people are going to see why I named her -- nominated her to the bench, and she's going to make a great Supreme Court judge.

The Washington Post reports that earlier Family Research Council leader James Dobson had said that White House aide Karl Rove informed him in advance of the choice of Miers and assured him that "Harriet Miers is an Evangelical Christian, that she is from a very conservative church, which is almost universally pro-life, that she had taken on the American Bar Association on the issue of abortion and fought for a policy that would not be supportive of abortion, that she had been a member of the Texas Right to Life."

Prisoner Sues Over Revocation of Kosher Diet

The Rocky Mountain News today reports on a law suit filed in federal court against against the Colorado Department of corrections by an Orthodox Jewish prison inmate who lost 30 pounds while subsisting on peanut butter and crackers after he was barred from eating kosher food. The suit, filed by the ACLU, alleges that prison refused to let Timothy Sherline have kosher food for a year as punishment for allegedly violating dining hall rules by putting pats of butter and packets of salad dressing in his pockets. Prisoners needing special religious diets are required to sign an agreement that allows for the diet to be revoked for a year if the inmate commits two dining hall violations. Sherline had also been accused of buying non-Kosher food at the prison commissary, but he said that he purchased it as a gift for his cell mate.

Air Force Withdraws Code Permitting Limited Proselytizing By Chaplains

The Washington Post reported yesterday that the Air Force has withdrawn "for further review" a code of ethics for Air Force chaplains that endorses the practice of evangelizing service members who are not affiliated with any specific religion. That code is separate from the Covenant and Code of Ethics for Chaplains of the Armed Forces, drafted by the private National Conference on Ministry to the Armed Forces. The NCMAF Code contains a similar provision: "I will not proselytize from other religious bodies, but I retain the right to evangelize those who are not affiliated." The Air Force action comes shortly after the filing of a law suit by a Jewish Air Force Academy graduate, a parent of a current cadet, who claims that officers and cadets impose Christianity on others at the Academy. (See prior posting.)

10 Commandment Cases Won't Go Away

Last week, the ACLU of Oklahoma filed suit seeking the removal of a Ten Commandments monument that is on the court house lawn in Haskell County, Kentucky. The Associated Press reported Monday that the 8-foot, $2,500 monument, funded by local residents and church members, was erected last November after approval from the Haskell County Commission. It sits alongside other monuments honoring those who died in the Civil War, the Trail of Tears, World War I and World War II.

Dworkin Gives Lecture on U.S. Religion and Politics

Hamilton College's website yesterday reported on the Truax Lecture in Philosophy delivered October 10 by NYU Professor Ronald Dworkin. The lecture was titled "The New Religious Wars" and focused on religion in American politics. Extensive excerpts from his lecture are set out. His main thesis: there are two possible models for the U.S. Either a community that is committed to the principle of religion but respects people who choose not to practice a religion, or one that considers itself neutral about religion but is tolerant of people’s freedom to practice any religion they choose.

Cert. Denied In Claim of Wiccan To Deliver Opening Benediction

Yesterday, according to the AP, the U.S. Supreme Court denied certiorari in Simpson v. Chesterfield County Board of Supervisors. The 4th Circuit Court of Appeals had upheld Chesterfield County, Virginia's decision to bar a Wiccan spiritual leader from delivering the opening prayer at one of the county Board of Supervisors meetings. Clergy in the Judeo-Christian tradition were invited to deliver prayers at the meetings, but it was determined that Wiccans were ineligible to be included on the list of invitees. The Supreme Court, without comment, refused to review the case.

British Christians Still Fighting Religious Hatred Bill

CNS News reported yesterday that in Britain, Christians began three days of protest hoping to convince the House of Lords to defeat the Racial and Religious Hatred Bill passed by the House of Commons last July. A broad range of groups oppose the bill. Evangelical Christians are concerned about its impact on their freedom to share their faith or question the claims of other religions. Actors and comedians fear it will make mocking religious beliefs a crime. The bill outlaws any written material or public verbal comments "that are threatening, abusive or insulting [and] likely to stir up racial or religious hatred." Violations are punishable by a jail term of up to seven years. Existing race-hate laws provide protection to minorities on the basis of ethnicity, not religion. Jews and Sikhs are considered as ethnic as well as religious groups, and so enjoy legal protection. Muslims as a religious group, however, are not protected under current law.

In the House of Commons Wednesday, Prime Minister Tony Blair defended the proposed law. His remarks are reported by ePolitix.

Massachusetts House Supports "Under God" In Pledge

The Massachusetts House of Representatives has voted 115-31 in favor of a resolution asking the U.S. Supreme Court to reject attempts to remove the phrase "under God" from the Pledge of Allegiance as recited daily in public schools. The Republican today reports that the resolution passed the Massachusetts House Sept. 28, two weeks after a U.S. District Court judge in Sacramento, Calif., ruled the pledge's reference to one nation "under God" violates a child's right to be free from "a coercive requirement to affirm God" in public schools.

High School Coach Quits After Team Prayer Prohibited

Football game prayer is not just a hot-button issue in the South, as I reported in a posting yesterday. It is equally contentious in New Jersey. WABC New York reported yesterday that East Brunswick New Jersey High School football coach Marcus Borden resigned after being told he could no longer lead the team in prayer before football games. A prayer by the team, led by the coach, giving thanks and asking for victory had been a 23 year tradition at the high school. The school said several parents of various religious backgrounds had complained about the prayer.

Michigan Pondering 10 Commandments Display

WLNS Lansing reported yesterday that Michigan legislators and the governor are beginning to consider whether there is a constitutional way of displaying the Ten Commandments at the state Capitol. A committee to consider the matter is scheduled to meet today. The committee will also meet later on to hear interested individuals testify on the issue.

Botswana Group Resists Measles Vaccination On Religious Grounds

In late September, All Africa.com reported that a religious group in Botswana were preparing to resist the government's national measles immunization and Vitamin-A campaign aimed a children in the country. The resistance comes from some members of the Johane Church of God (the Zezuru). Raphael Panganayi said that his followers would resist the vaccination program, saying that it would mean breaking their church rules. "I will never, under any circumstances, have my children immunised because doing so would be committing a sin. Why should I have them vaccinated when our church teaches us that the use of any kind of medicine is wrong?"

The threatened resistance seems to have been carried out. On Monday, Daily News Online reported that since the start of the immunization campaign, which was launched by Botswana's Health Minister Sheila Tlou on October 3, a majority of Bazezuru were reluctant to take their children for immunization.

City Council Resolves To Keep Prayer

The Anderson Independent-Mail yesterday reported that the City Council of Anderson, South Carolina wants to preserve its tradition of rotating among members of Council the responsibility for opening each Council meeting with a prayer, or choosing not to have a prayer, despite ACLU objections. Anderson Mayor Richard Shirley opened Monday night’s City Council meeting according to his custom of reading from a collection of invocations of a former U.S. Senate chaplain. The prayer ended with the words: "Through Jesus Christ Our Lord." Shirley insists (text of remarks) that his right to pray to Jesus insures the rights of any member of Council to pray according to his or her religious beliefs as well. He says he will resign if he is not permitted to continue to pray to Jesus. Council passed a resolution unanimously adopting a Policy that continues its long-standing practice of opening sessions with prayer. The resolution said: "The City Council expressly states that this moment of prayer should not be viewed as an attempt to establish a religion. Attendance during the prayer by a council member or the general public is not a requirement to participate in the City Council meeting."

Women In Bahrain Press For National Law On Personal Status

In Bahrain, the Supreme Council for Women (SCW) has launched a campaign for a new law to govern child custody cases, divorces, inheritances and other family disputes. According to Monday's Gulf Daily News, currently these matters are handled by religious Sharia courts. A study by the SCW and the Bahrain Centre for Studies and Research found that women were being treated unfairly by the current Sharia judicial system.

Paper Profiles Richard Land

Today's Boston Globe carries a long and interesting profile of Richard Land, president of the Southern Baptist Convention's Ethics and Religious Liberty Commission. Here is an example of the Globe's description of Land: "To his liberal foes, Land is easily the most confounding of religious right leaders. At least as steeped in Western history as biblical verse, this fan of Jane Austen and Thomas Wolfe boasts a doctorate of philosophy from Oxford and readily slips out of Southern Baptist vernacular into the language of the media elite. He frequently quotes Winston Churchill and tops the guest call-list when the subject on Washington's Sunday TV talk shows turn to faith and values. Last year he logged 160 media interviews. He counts Democrats among his best friends."

Israeli Government Funds Religious Ads; Shinui Objects

The Israeli government is funding an advertising campaign encouraging secular Israelis to participate in prayer and discussions this week on Yom Kippur eve at 250 community centers across the nation. The Jerusalem Post reported yesterday that the ads have become the subject of some controversy. Rabbi Michael Melchior, Deputy Minister for Israeli Society and the World Jewish Community, said that the aim of the ad campaign was to emphasize the relevance of Jewish holidays for all. However, MK Avraham Poraz (Shinui) called on the government Sunday to halt state funding for the ad campaign. His letter to Prime Minister Ariel Sharon said, "It is not the state's role to use tax payer's money to finance a campaign that encourages people to embrace religion".

Professor Shimon Sheetrit of the Hebrew University, a legal expert in religion-state issues said, "We are not in a state like the US that has a non-establishment clause or like France that is aggressively secular. We are in Israel, which is Jewish democratic state and provides funding for religious activity. About 95% of Israeli Jews fast on Yom Kippur. That is a clear consensus."

Football Game Prayers Persist In A Few Alabama High Schools

The Birmingham, Alabama News reports today that despite the U.S. Supreme Court's 2000 decision in Santa Fe Indepen. School Dist. v. Doe, in some parts of Alabama public schools allow students or ministers to pray over stadium public address systems before high school football games. ACLU of Alabama attorney Robert Varley says, "It's difficult for someone to come forward and complain about that kind of thing. They would be ostracized by the community. " After a 1997 federal court ruling against such prayer was issued by an Alabama federal district court, most schools in the state replaced pre-game prayers with moments of silence. However a few Alabama high schools have continued prayers over the public address system and almost dare anyone to try to stop them,

Senate To Hold Hearings On Saudi Literature In U.S. Mosques

The New York Sun reported last week that the U.S. Senate Judiciary Committee has scheduled hearings for October 25 to examine reports that documents inciting Muslims to acts of violence and which promote hatred of Jews and Christians were being distributed by the Saudi Arabian government to mosques in the U.S. The materials were first called to public attention in a report issued earlier this year by Freedom House’s Center for Religious Freedom. The Senate hearings are part of the Committee’s consideration of the Saudi Arabia Accountability Act of 2005 (S. 1171).

Tribes Again Challenging Snow Bowl Development

Despite the 1983 D.C. Circuit opinion in Wilson v. Block that permitted development of the Snow Bowl ski area on the San Francisco Peaks in the Coconino National Forest, several Native American tribes are trying again. The Arizona Daily Sun reported yesterday that the Hopi, Navajo and Hualapai are suing to protect their sacred sites by preventing Snow Bowl from making snow there with reclaimed wastewater. The tribes claim that now the Religious Freedom Restoration Act gives their religious practices greater protection that they were awarded in the 1983 case.

School Prayer Dispute In Korea

Issues of school prayer are not limited to the United States. Sunday’s Korea Herald reported on a lawsuit pending in a Seoul Korea District court by a high school student raising religious freedom claims in challenging his expulsion from school. Kang Eui-seok, an agnostic, refused to attend high school chapel services, which along with a course in Christian education, is required. Supporting the student’s case are the Korea Institute for Religious Freedom, Christian Solidarity for Justice and Peace, Citizen Coalition for Religious Freedom in Schools, and Parents' Coalition for Realizing Human Education.

Another Move Against FLDS Control Of Arizona City

In another step against the Fundamentalist Church of Jesus Christ of Latter Day Saints, a breakaway polygamist Mormon sect, Arizona's attorney general is seeking a federal civil rights review of the entire police force of Colorado City. The development is reported in an AP story from Friday carried by Officer.com. It is claimed that the FLDS dominates Colorado City and adjacent Hildale, Utah. (See prior posting.) Other law enforcement officials and citizens claim that the Colorado City police force operates under direction of FLDS. Young men who had clashed with leaders of FLDS have complained of being threatened with arrest and forced to leave the city. There are also claims that the police have ignored complaints from women who were forced into marriage or subjected to violence.

Minority Groups Concerned Over Romania's Proposed Religion Law

Today the American Daily reports that minority religious communities in Romainia are concerned about the current draft of a new religion law and the way it has been rushed to Parliament under an "emergency procedure." The proposed law divides religious groups into three different categories, each with different rights. Eighteen recognized "religious denominations" or "cults" enjoy the greatest rights. Those with fewer than about 22,000 members can register as "religious associations" with lesser rights, while those with under 300 members can only function as "religious groups" which have no legal status. Religious activity by unregistered communities will be legal.

District Court Upholds RLUIPA Against Various Constitutional Challenges

In Gooden v. Crain, 2005 U.S. Dist. LEXIS 22744 (ED Tex., Oct. 5, 2005), a Texas federal district court upheld the Religious Land Use and Institutionalized Persons Act against a number of constitutional challenges. Pointing to decisions of various Courts of Appeal, the court rejected commerce clause, spending clause and Tenth Amendment challenges to the statute.

Prisoner's Protest of Removal As Sweat Lodge Leader Rejected

In Wills v. Reighard, 2005 U.S. Dist. LEXIS 22575 (WD Mo., Oct. 5, 2005), a Missouri federal district court rejected a prisoner's free exercise and equal protection claims growing out of the prisoner's removal from a leadership position in the prison's Native American Sweat Lodge. Tensions had developed among inmates who participated in the prison's Native American Spiritual Group. Plaintiff was regarded as unqualified to serve as Lodge Leader because he was not Native American, was not an enrolled member of a tribe, listed his religious preference as Jewish, and was unfamiliar with the songs necessary to properly perform the Sweat Lodge ceremony. The court held that plaintiff had no constitutional right to hold a leadership position in the religious group. It also rejected plaintiff's racial discrimination claims.

Vatican Entitled To Foreign Sovereign Immunities Act Protection

A federal court in Kentucky on Thursday dealt a setback to victims of sexual abuse who are attempting to bring a class action against the Vatican claiming that it covered up sexual abuse by priests. The Associated Press yesterday reported on the details of Judge John G. Heyburn II's opinion. The court ruled that the Holy See is a foreign state and can be sued only under the strict requirements of the Foreign Sovereign Immunities Act (FSIA). That Act permits suits against foreign governments in limited circumstances. The lawsuit argues that the Holy See engaged in both commercial and harmful activity in the United States, both of which are grounds permitting a suit to be brought under the FSIA. In this case, however, the court ruled that initially the plaintiffs failed to strictly follow the service of process requirements of the FSIA. Instead of serving the Vatican Foreign Minister, Archbishop Giovanni Lajolo, plaintiffs served his boss, Cardinal Angelo Sodano. The court gave plaintiffs 60 more days to effect proper service of process.

DOE Withdraws Funding For Alaska Christian College

On Friday, the U.S. Department of Education withdrew around $450,000 of Congressionally earmarked funds from Alaska Christian College after a federal investigation found that the school has been spending the money on religious instruction. The Anchorage Daily News reported that a letter from the DOE's Assistant Secretary for Postsecondary Education said that the school failed to separate religious proselytizing from its avowed purpose of preparing rural Native students for college life. The ruling by the Department of Education came as part of a settlement of a lawsuit against it challenging the constitutionality of federal funding for the school. (See prior posting.)

"Love In Action" Claims Licensing Violates Its Free Exercise Rights

Friday's Washington Blade reports that Love In Action, a Memphis, Tennessee Christ-centered ministry that operates group homes offering treatment designed to turn gay people straight, has filed a federal lawsuit against the state of Tennessee. The state wants the group to be licensed as a mental health supportive living facility if it has more than one mentally ill person in residence. Love In Action claims that it does not offer mental health care, but instead ministers from a Christian perspective. Its website says that it exists to help people align their behavior with their faith. The suit alleges that requiring the group to obtain a license would violate its rights to free speech and free exercise of religion. Love In Action is represented by the Alliance Defense Fund.

Ministerial Exception Applied To FMLA Claim

In Fassl v. Our Lady of Perpetual Help Roman Catholic Church, 2005 U.S. Dist. LEXIS 22546 (ED Pa., Oct. 4, 2005), a Pennsylvania federal district court applied the “ministerial exception” to dismiss a claim by a church Music Director under the Family and Medical Leave Act of 1993. The court held that the ministerial exception, required by the First Amendment’s Free Exercise and Establishment Clauses, applies to all federal employment statutes, not just to Title VII and the ADA.

Weida Transferred Out Of Air Force Academy

An officer at the center of the U.S. Air Force Academy's problems with religious prosetylization, Brig. Gen. Johnny Weida, is leaving the Academy and being transferred to Wright Patterson Air Force Base in Ohio. A report today on Military.com points out that the Commandant of Cadets is leaving the school one month after he was cleared of an allegation that he used his position to proselytize non-Christian cadets. (See prior posting).

Final Opinion Strikes Down Transfer of Mt. Soledad Cross

Today's San Diego Union-Tribune reports that a Superior Court judge in San Diego, California issued a final ruling mirroring her tentative opinion last month finding the transfer of the Mt. Soledad Cross and the La Jolla land surrounding it to be unconstitutional. (See prior posting.) The full opinion in Paulson v. Abdelnour finds the transfer to be an unconstitutional preference of religion that violates Art. I, Sec. 4 of the California Constitution, and an unconstitutional aid to religion in violation of Art. XVI, Sec. 5 of the California Constitution.

In Mississippi, Religious Arguments Intrude Into Casino Legislation

In the wake of Hurricane Katrina, Mississippi legislators are considering allowing the state's devastated offshore gambling casinos to rebuild on land. The North County Times today reports that the House passed a bill, and the Senate is now considering it. The new law would allow casinos to build up to 800 feet onshore, rather than restricting them to coastal waters as before. Some legislators though are raising religious objections to the gambling bill. The Mississippi Baptist Convention is one of the strongest anti-casino forces in the state. About 50 Baptist pastors from across Mississippi came to the Capitol in Jackson last week to urge legislators not to allow casinos on land.

Court Refuses To Dismiss Establishment Clause Claim In Salvation Army Case

In Lown v. Salvation Army, Inc., 2005 U.S. Dist. LEXIS 22260 (Sept. 30, 2005), a New York federal district court dismissed constitutional claims brought by employees of the Salvation Army challenging the organization's requirement that employees not act inconsistently with the teachings of the religious group. It found that any religious discrimination against the employees could not be attributed to governmental action.

However the court permitted a taxpayers' Establishment Clause claim against governmental defendants in the case to proceed. The City of New York and a number of other governmental entities contract with the Salvation Army for the provision of social services. Plaintiffs alleged that government funds were used to finance the Salvation Army's religious discrimination, and that government funds supported indoctrination of clients whom the government compelled to participate in the Salvation Army's Social Services for Children programs.

AF Academy Sued Over Religious Proselytization

The controversy over Christian proselytization at the U.S. Air Force Academy (see prior posting) has finally found its way into the courts. The Associated Press reports that yesterday in Albuquerque, New Mexico, a Jewish father of a recent graduate and a currently enrolled Air Force Academy cadet sued the Air Force. The father, Mikey Weinstein, is himself an Academy graduate. An outspoken critic of the situation at the Academy, Weinstein claims that senior officers and cadets illegally imposed Christianity on others at the school. [Thanks to Brad M. Pardee via Religionlaw for the information.]

Wiccan Students May Wear Pentacles; Club Still In Doubt

The Decatur Alabama Daily reported earlier this week on progress Wiccan students, led by 16-year old Ricky Shepard, are making in Morgan County, Alabama's Priceville High School. They have been seeking the right to wear pentacles (Wiccan symbols) and to form a Wicca club for the estimated six students who practice Wicca. School authorities have come around on the wearing of pentacles. The school board's attorney said, "In the beginning, we really didn't know anything about (Wicca). . . . It's a learning process, something we had to look into." He said that after the boy's mother assured them Wicca was not gang-related or Satanic, administrators lifted the ban on pentacles. The principal said he had mistaken the necklace's symbol for a pentagram, an upside-down version that symbolizes Satanism.

Quebec Court Refuses To Enforce Husband's Agreement To Give Divorcing Wife a "Get"

According to today's Canadian Jewish News, the Quebec court of Appeals has overturned a lower court decision that had enforced an agreement that a husband had signed obligating him to appear before a Jewish religious court after receiving a civil divorce. The appellate court ruled unanimously that Superior Court justice Israel Mass was wrong when he decided that husband Jessel (Jason) Marcovitz, entered into a contract that is civilly enforceable, despite its religious nature. The Court of Appeals held that the federal Divorce Act does not give courts jurisdiction to require the issuance of a "get", the Jewish religious divorce, no matter what the divorcing parties have consented to, because courts do not have the right to enforce a matter of religious obligation. The lower court had awarded Marcovitz's wife $47,500 in damages because her husband had delayed for 15 years in giving her a "get", making it impossible during that period for her to remarry according to traditional Judaism.

Alaska Senator Wants To Fund Religious Materials For Homeschoolers

In Alaska, home-schooled students receive state funds to pay for supplies. Now an Alaska state senator is urging a change in the rules so that students can use that money to buy religious textbooks and religious software to use along with secular material. Tuesday's Anchorage Daily News reported that Senator Fred Dyson raised the issue at a recent state Board of Education meeting. "If the material meets academic standards, then it ought not to be disqualified just on the basis that it has some religious connotations," Dyson said.

Roy Moore Will Run For AL Governor

Church-state issues are certain to be at the center of the Alabama Republican gubernatorial primary on June 6 next year. The Birmingham News reports that former Alabama Supreme Court Chief Justice Roy Moore announced on Monday before a cheering home town crowd that he is running for Governor in 2006. (See prior posting.) Moore was removed from office as Chief Justice after he refused to take down a 5,300 pound monument of the Ten Commandments from the Alabama Supreme Court building's rotunda.

State's Placing Children In Overtly Religious Facility Is Establishment Violation

Last week, in Teen Ranch v. Udow, 2005 U.S. Dist. LEXIS 22164 (WD Mich., Sept. 29, 2005), Judge Robert Bell issued an important opinion finding Establishment Clause problems with Michigan's Family Independence Agency (FIA) contracting for a faith-based organization to provide youth residential services. Teen Ranch is an overtly Christian facility that promotes a Christian worldview and encourages conversion to faith in Christ as part of its services to youth. FIA refused to continue to place children who are wards of the state with Teen Ranch unless the Ranch changed its practice of imposing its religious beliefs into its daily treatment and service plan activities. Teen Ranch sued, asserting violation of free speech, free exercise of religion, due process and equal protection. The court rejected all of these contentions.

The court recognized that the U.S. Supreme Court has permitted government funds to flow to religious organizations when a subsidy is given by reason of an individual who has used true private choice in selecting that organization. Here, the state places children in Teen Ranch and merely gives them the opportunity to opt out if they object to the religious nature of the program. The court held that this was not sufficient to satisfy the test of true choice required to avoid an Establishment Clause problem.

Family News In Focus today reported that Teen Ranch is considering an appeal to the Sixth Circuit. Teen Ranch claims that the FIS's action amounts to religious discrimination, according to Agape Press.

10th Circuit Upholds Land Sale By City To Mormon Church

On October 3, the U.S. 10th Circuit Court of Appeals decided Utah Gospel Mission v. Salt Lake City Corp. The case involved the 1999 sale by Salt Lake city of a block-long section of Main Street to the Mormon Church so it could build a Plaza on it. The Plaza was to serve as an ecclesiastical park. The city hoped the Plaza would stimulate downtown pedestrian traffic and promote business. The Church prohibited demonstrations, leafleting and picketing on the Plaza. The sale was challenged on free expression and establishment clause grounds, and the court rejected both challenges. It found that the arrangements had a secular purpose , did not have a primary effect that advanced religion, and did not create excessive entanglement between church and state.

New Articles Of Interest Online

From the University of Chicago:
Daniel L. Chen and Jo T. Lind, The Political Economy of Beliefs: Why Do Fiscal and Social Conservatives/Liberals Come Hand-In-Hand?


From Bepress:
Gonzaga Law Professor Sharon Keller, The Rules of the Game: "Play in the Joints" Between the Religion Clauses

Max E. Dehn, How It Works: Sobriety Sentencing, the Constitution and Alcoholics Anonymous. A Perspective from AA's Founding Community

How Much of An Issue Will Miers' Religion Be?

The appropriateness of considering a Supreme Court nominee's religious beliefs in Senate nomination hearings and deliberations is now a high agenda item. Among the little know about nominee Harriet Miers, her religious beliefs are now a matter of public record. Yesterday, papers like the Washington Post and New York Times ran long stories on Miers' spiritual journey from Catholicism to becoming a born-again Christian active in a Dallas evangelical church.

Her former law firm colleague, Nathan L. Hecht, now a justice on the Texas Supreme Court recounted the event: "She decided that she wanted faith to be a bigger part of her life. One evening she called me to her office and said she was ready to make a commitment" to accept Jesus Christ as her savior and be born again, he said. He walked down the hallway to her office. There amid the legal briefs and court papers, the two "prayed and talked".

Cert. Denied In Bible-In-Jury Room Case

Today, the U.S. Supreme Court denied certiorari in Colorado v. Harlan. Thus it refused to review the 3-2 decision by the Colorado Supreme Court that had held that using a Bible in the jury room during deliberations undermines a capital defendant's right to a fair trial. The denial of cert. and reactions to it are reported today by the Christian Science Monitor.

New Supreme Court Nominee-- Any Clues On Her 1st Amendment Religion Clause Views?

Today President Bush announced his intent to nominate White House Counsel Harriet Miers to fill Justice Sandra Day O'Connor's seat on the U.S. Supreme Court. Little is known about her views on many legal issues, including church-state questions. The President's announcement included the fact that among the community organizations in Texas with which she was involved was Exodus Ministries. That group, part of Preston Hollow Presbyterian Church in Dallas, is described as follows on its website:

Exodus is both a challenging and gratifying ministry that seeks to encourage ex-offenders, to reunite them with their families, and to empower them to become self-sustaining, productive, Christ-centered members of society. Individuals are needed to help in the Exodus offices to serve as Bible Study leaders, computer instructors, and tutors/mentors. Professional experts, such as doctors, dentists and lawyers, are welcome at Exodus to help with both guidance and more immediate needs.

Interestingly, also in listing the community groups in which Miers was involved, the President referred to the full name of one, the Young Women's Christian Association, even though nationally the organization formally calls itself the "YWCA".

President Wishes Happy New Year As Rosh Hashanah Approaches

On Friday, President Bush issued a Presidential Message sending greetings to all who will be celebrating Rosh Hashanah beginning tonight.

Moment of Silence Seems To Be Working Constitutionally in Indiana

In Indiana public schools, a new law that took effect this fall requires a moment of silence for students at the beginning of the day. A Fort Wayne Journal Gazette reporter visited 5 different schools to see how the mandate is being carried out "in the trenches". Her detailed report published Sunday is interesting, and does not suggest that the moment of silence is being used to encourage prayer, as some feared.

NYC Urged To Ban Ritual Male Circumcision For Infants

New York City's uneasy arrangement with its Orthodox Jewish community which led the city to transfer to a Jewish religious court the issue of the safety of a particular method of circumcision (see prior posting) has led anti-circumcision advocates to urge the City to take much more drastic action. Medical News Today on Sunday reported that activist Matthew Hess of San Diego is urging New York to ban medically unnecessary circumcision of children under 18 since they are unable to give their consent. J. Steven Svoboda, Executive Director of Attorneys for the Rights of the Child said, "Removing healthy, functional tissue from a nonconsenting minor in the name of religion or preventive medicine is assault' and urged that male circumcision be banned just as female circumcision already is.

Post 9-11 Actions Generate Free Exercise Claims

Two free exercise cases growing out of the federal government’s war on terror have recently been decided.

Elmaghraby v. Ashcroft, 2005 U.S. Dist. LEXIS 21434 (E NY, Sept. 27, 2005), involved two Muslim men from Egypt and Pakistan, respectively, who were arrested on criminal charges in the months following 9-11, and detained at the Metropolitan Detention Center ("MDC") Special Housing Unit in Brooklyn. Among their many claims of mistreatment during their confinement were claims of harsher treatment because of their religious beliefs and deliberate interference with their religious practices. Officers banged on their cells while they were praying, routinely confiscated their copies of the Koran, and refused to permit them to participate in Friday prayer services with fellow Muslims, making comments such as "No prayer for terrorists". The court refused to dismiss most of these claims insofar as they were based on alleged violations of the Constitution, but if found that defendants are entitled to qualified immunity insofar as claims allege RFRA violations.

The second case is Islamic American Relief Agency v. Unidentified, 2005 U.S. Dist. LEXIS 21570 (Sept. 15, 2005). The case involves a challenge to action taken by the United States under anti-terrorism legislation to block the assets of the Islamic American Relief Agency. One of the claims was that by blocking its assets, the government interfered with the free exercise of religion of its donors who used the organization to fulfill their religious obligations as Muslims to engage in Zakat (humanitarian charitable giving). The court dismissed the free exercise claim both on the merits and because the organization did not have standing to assert it.

Another 10 Commandments Monument Can Remain

The Ten Commandments cases don't stop. The Bismarck, North Dakota Tribune reported Friday that a federal district court judge in Fargo held last week that a Ten Commandments display outside Fargo City Hall could remain. U.S. District Judge Ralph Erickson issued a 20-page opinion saying the monument conveys both secular and religious ideals.

UPDATE: The opinion in the case is now available. Twombly v. City of Fargo, 2005 U.S. Dist. LEXIS 21967 (D ND, Sept. 29, 2005).

Two More Prisoner Free Exercise Cases

In Durham v. Department of Corrections, 2005 U.S. Dist. LEXIS 21436 (ED Pa., Sept. 28, 2005), a Pennsylvania federal trial court held that a prisoner’s First Amendment religion claim growing out of a search of his cell should be dismissed. The officers searching the cell tore down portraits of Elijah Mohammad and Rev. Louis Farrakahn and made disparaging comments about the religion of Islam. The court found that the portraits were not central to the plaintiff’s religious worship, and tearing them down had no substantial impact.

In Shaheed-Muhammad v. Dipaolo, 2005 U.S. Dist. LEXIS 21539 (D. Mass, Sept. 28, 2005), plaintiff alleged violations of state and federal religious freedom protections when prison officials, confiscated a religious medallion, failed to provide him with vegetarian meals in accordance with his religious practices; denied him access to The Five Percenter, a newspaper published by the Nation of Islam; and transferred him to another facility in retaliation for asserting his religious freedoms. The court rejected the retaliatory transfer claims, but allowed his other claims to move forward on at least some of the grounds which plaintiff had asserted.

House of Representatives Recognizes Religious Concerns

On Thursday, the U.S. House of Representatives covered all of its religious bases. It agreed to take off on Tuesday and Wednesday for Rosh Hashanah. It passed House Concurrent Resolution 245 "Expressing the sense of Congress that the United States Supreme Court should speedily find the use of the Pledge of Allegiance in schools to be consistent with the Constitution of the United States". Also Representative Eddie Johnson introduced House Resolution 472 "Recognizing the commencement of Ramadan, the Islamic holy month of fasting and spiritual renewal, and commending Muslims in the United States and throughout the world for their faith".

Eritrea Sanctioned, Saudis Given More Time On Religious Freedom

Last week, according to the Associated Press, the State Department notified Congress that Secretary of State Condeleeza Rice had banned commercial export of certain defense articles to Eritrea because of its poor record on religious freedom. This is the first time that sanctions have been imposed under the International Religious Freedom Act. The African country was classified a year ago along with Saudi Arabia and Vietnam as a "country of particular concern" because of its religious freedom record. (See prior posting). However, the State Department also authorized a 180-day waiver of action against Saudi Arabia, "in order to allow additional time for the continuation of discussions leading to progress on important religious freedom issues." The U.S. Commission on International Religious Freedom urged the State Department to continue to press the Saudis.

Osaka Court Goes Other Way; PM's Shrine Visit Unconstitutional

Contradicting a ruling by a Tokyo court the day before (see prior posting), on Friday, according to the Associated Press, the High Court in Osaka, Japan ruled that Prime Minister Junichiro Koizumi's 2004 visits to a Tokyo war shrine violated the constitution's required separation of religion and state. In contrast to the Tokyo court ruling, this court held that the prime minister's act was a public act, not a private one. However, the court rejected the Taiwanese plaintiffs' demands for damages of $88 each.

New Publications

The September issue of Law and Society Review (Vol. 39, pp. 677-722) has published a series of articles under the caption Forum: Lloyd Burton's Worship and Wilderness: Culture, Religion, and Law in Public Lands Management. Among the articles in it are William Blatt, Holy River and Magic Mountain: Public Lands Management and the Rediscovery of the "Sacred in Nature", and Winnifred Sullivan, Advocating Religion on Public Lands: Native American Practice or Buddhist Sermon? [From SmartCILP].