Editorial Commentary: The Cartoon Controversy and the False Holocaust Analogy

Today in Austria, British revisionist historian David Irving goes on trial for violating Austria’s law against Holocaust denial. In the wake of the Muhammad cartoon affair, some in the Muslim world have attempted to draw parallels between the caricatures of Muhammad and neo-Nazi propaganda. An Iranian newspaper editor thought that an appropriate response to Danish publication of the Muhammad drawings was a contest calling for Holocaust cartoons. Others have urged that laws banning neo-Nazi propaganda, Nazi symbols or Holocaust denial, enacted in several European countries, are precedents for new legislation prohibiting drawings insulting to Islam. However, the attempted analogies are false ones, even though few commentators have noted the asymmetry involved.

The fundamental difference between Neo-Nazi propaganda and the "cartoon affair" is the well-recognized difference in U.S. constitutional law between incitement cases and hostile audience cases. Incitement cases, to which U.S. courts apply the clear-and-present-danger test, involve situations in which we fear that listeners will so strongly agree with the speaker that language will quickly move to conduct. That is the concern with neo-Nazi propaganda and marches. Given the history of mid-20th century Europe, and the resurgence of anti-Semitism in Europe at the end of the 20th and beginning of the 21st centuries, a real fear exists that those who agree with neo-Nazis will quickly be recruited to persecute and resort to violence against Jews.

Hostile audience cases, on the other hand, are cases in which the listeners vociferously disagree with the speaker. The fear is not that listeners will follow the speaker’s urgings, but that listeners will attack the speaker or otherwise exert a hecklers’ veto. In these cases, American constitutional law protects the speaker, except in the most extreme of circumstances. The Muslim cartoons are problematic because of the reaction of a hostile audience, the reaction of Muslims who are offended by them. No one realistically fears that the cartoon of Muhammad with a bomb in his turban will so convince the Danes that Muslims are terrorists that they will begin to violently attack Muslims. Non-Muslims in general recognize the cartoons as exaggerations or over-generalizations. The fear—justified in the reality—is that some Muslims, insulted by the cartoons, will react violently against those who have published them. American law generally protects speakers from this kind of hostile reaction.

Understanding this distinction does not solve the problem of the cartoons. But hopefully it does prevent us from using false analogies in seeking a solution. Balancing the interests of listeners and speakers is difficult. Western democracies have, by and large, come down heavily in favor of the rights of speakers and have told listeners who are offended by the ideas being expressed to walk away, turn the page, switch off the broadcast, stay away from the presentation, or reply with ideas that are more convincing to listeners. Muslim protesters around the world do not agree with that resolution of the conflicting values at stake. But they need to at least recognize that the problem is different from that posed by neo-Nazi attempts to find sympathizers who would like to revive Hitler’s "final solution".
--- HMF

Arizona Bill Would Permit Opt-Out From College Assignments

In Arizona last week, the Senate Committee on Higher Education approved a bill that would require university faculty to offer alternative course work for students who find an assignment offensive to their sexuality, morality or religion. According to the Associated Press, Sen. Thayer Verschoor introduced the bill after a community college student complained to him after he was assigned to read Rick Moody's The Ice Storm, which contains scenes of sexuality and drug use.

Appeals In Ritual Beheading By Indigenous Indonesian Tribe

Today's Jakarta Post discusses pending appeals of murder convictions of members of the indigenous tribal community of Naulu in the interior of Seram Island, Maluku, in Indonesia. The tribe carries on its tradition of ritual decapitation. A segment of the Nauli people are convinced that unless human heads are offered when repairing or replacing a clan house, illness or death will result. The chief of the Nuane community, Sahune Matoke, said his members were motivated by the belief that performing the customary ritual was a sacred mission. "They had no idea of any punishment for such a killing." Samson Tahapary, a lawyer filing an appeal for the Naulu said, "The government knows of the unlawful tradition but no action has been taken to make the Naulu people understand the law. " Samson added, "The judges' decision will not be a means to increase my clients' awareness and provide further guidance. So I'm filing an appeal for proper consideration of nonjudicial matters before passing a verdict."

Recent Articles and Upcoming Conference

Recent law review articles form SmartCILP:

• Ivan E. Bodensteiner, The Demise of the First Amendment As a Guarantor of Religious Freedom, 27 Whittier Law Review 415-434 (2005).
  
• E. Frank Stephenson, An Argument for Tax Reform Based on Judeo-Christian Ethics: A Rejoinder, 36 Cumberland Law Review 103-113 (2005-2006).

Upcoming Conference:

• Fundamentalism and the Rule of Law, Cardozo School of Law, March 14, 2006.
  

No Federal Court Jurisdiction In Priest Abuse Case

In Doe v. Archdiocese of Denver, (Feb. 7, 2006), the Colorado federal district court refused to find a federal question supporting federal court jurisdiction present in a child sexual abuse claim against a priest and the Archdiocese. It held that the claims of negligent supervision and retention, vicarious liability, and fraud against the Archdiocese, and claims against the priest for breach of fiduciary duty and civil conspiracy do not raise free exercise or establishment clause problems.

Science Association Denounces States' Anti-Evolution Efforts

Meeting in St. Louis, yesterday the Board of Directors of the world's largest general scientific organization, the American Association for the Advancement of Science (AAAS), criticized state legislative efforts to undermine the teaching of evolution and "deprive students of the education they need to be informed and productive citizens in an increasingly technological, global community." (AAAS release.) Their statement said that science and religion "need not be incompatible. Science and religion ask fundamentally different questions about the world. Many religious leaders have affirmed that they see no conflict between evolution and religion. We and the overwhelming majority of scientists share this view." The AAAS statement was released in connection with an event for teachers at the group's 2006 Annual Meeting: "Evolution on the Front Line".

Private Maryland Center Refuge For Christian State Legislators

Today's Baltimore Sun profiles Querencia House, an unmarked rented residence two blocks from the Maryland State House that since 2004 has served as a refuge for the capital's conservative Christians. Each week that the legislature is in session, Christians gather at the privately-funded center to pray for the president, the governor and state legislators and to ask that the kingdom of God be realized in Maryland. Del. Gail H. Bates says she feels lifted up by their support. Begun by Barb Stiegler, a former missionary, the house was the idea of Sen. Janet Greenip who was was looking for a quiet place in the capital during the legislative session. "I felt that the Christians here needed to be together sometimes," she said. "A place where they could be Christian."

Inside A High School Bible Class

A lengthy article by a Wilmington, North Carolina Star-News reporter gives insight into what is actually taking place in the classroom in a New Testament course offered in Wilmington high schools. Teachers are hired and paid by a church-supported group, the Executive Committee of the Bible. As recounted by the reporter:

At Harris's class last week there was nothing close to preaching. He asked students questions about aspects of the Bible, like which events in world history explained why the Old Testament was written in Hebrew and the New Testament in Greek. At another, he talked about the tensions leading to the Protestant Reformation. But other moments arguably reinforced a traditional brand of Christian thinking. Harris referred to creation and made statements such as the Bible is one book, which has 66 smaller books, 40 authors and one central theme: "The redemption of man through Jesus Christ."

Rick Holliday, New Hanover County School's executive director of instructional services said that the classes have been renamed to reflect a more historical bent. The course that was "In the Beginning" is now "Old Testament I" and "The Life of Christ" is now "New Testament I." The school is also insisting that miracles are not treated as history, but instead as something “the Bible says”. Holliday says that the goal is to give the community what it wants and to follow the constitution, but adds, "That's a tough balancing act".

NH Supreme Court Rejects Foreign Islamic Divorce Of NH Domiciliaries

On Valentine's Day, the New Hampshire Supreme court rejected a husband's claim that his Islamic divorce a day before his wife filed in New Hampshire should have prevented the New Hampshire trial court from asserting jurisdiction to end their marriage. The case, In the Matter of Sonia Ramadan and Samer Ramadan (NH Sup. Ct., Feb. 14, 2006), is discussed in yesterday's Concord Monitor. Samer Ramadan claimed that he validly divorced his wife under Islamic law by declaring "I divorce you" three times in succession in her presence. He then telephoned an attorney in Lebanon and declared, with two witnesses listening, that he had divorced his wife. Two months later, a religious magistrate in Lebanon issued a decree confirming that divorce. However, the New Hampshire Supreme Court held that the Lebanese decree had no legal effect because both husband and wife were domiciled in New Hampshire when the wife's divorce petition was filed.

The court decided that another issue raised by the husband was moot. The trial court's initial temporary decree had ordered the husband "not [to] speak about the Petitioner as a Muslim/Muslim woman to the children or within hearing of the children." Since that provision was not in the final divorce decree being appealed, the Supreme Court held it did not have to determine whether it amounted to an unconstitutional prior restraint on speech.

Closing Arguments In Trial Challenging InnerChange

The Des Moines Register reports on closing arguments that were presented Friday by lawyers in federal district court in Iowa in a case challenging InnerChange, a faith-based prison treatment program. Operating in Iowa and elsewhere, inmates in the program immerse themselves in Christian values. (See prior related postings 1, 2.) Americans United for the Separation of Church and State has sued Iowa prison officials and Prison Fellowship Ministries, which operates the program, claiming that InnerChange violates the Establishment Clause. The suit seeks repayment of $1.5 million in state funds that have been used for InnerChange.

Lawyers for Americans United argue that the program "requires and coerces inmates to take part in religious activities." They say it discriminates against other religious beliefs, particularly Catholicism, and provides special privileges to participants. These include an opportunity to complete treatment classes required for parole earlier than they could otherwise. Defense lawyers dispute these claims, saying no one is forced to participate and that participants receive no preference for paroles. "Inmates of all faiths and no faiths are welcome," said Anthony Troy, a lawyer for Prison Fellowship. He says that those of other faiths who join the program can continue to observe their traditions

2 Prisoners Successful, 1 Is Not, In 3 Free Exercise Cases

Opinions in three prisoner free exercise cases have recently become available.

In Bess v. Alameda, 2006 U.S. Dist. LEXIS 6079 (ED Cal., Feb. 16, 2006), a Magistrate Judge in a California federal district court recommended that a motion for summary judgment by prison officials be denied because they had failed to carry their burden of showing that their restrictions on inmates receiving religious books and materials were necessary, nor did they show they were in furtherance of a compelling governmental interest and were the least restrictive means of furthering that interest. Plaintiff, a state prison inmate complained that his free exercise rights under the Constitution and RLUIPA were being violated by a prison mail room practice of returning religious mail to the sender marked "unauthorized", without notice to the inmate to whom it was addressed. He also claimed that greater restrictions were placed on receiving religious books and materials than on comparable secular material.

In Fulbright v. Evans, 2005 U.S. Dist. LEXIS 40240 (WD Okl., Sept. 8, 2005), an Oklahoma federal Magistrate Judge recommended that a permanent injunction be granted that orders state prison officials to furnish plaintiff prisoners with a kosher diet. The opinion rejects defendants' claims that furnishing kosher food would violate the Establishment Clause, and accepts plaintiff's free exercise claims. The opinion concludes that the Department of Correction's "refusal to provide a kosher diet, in light of its provision of religious-based diets for other inmates without negative impact, is not entitled to total deference. Here, the record does not reflect more than a de minimis impact upon DOC's economic resources and does not reflect any significant negative impact upon the other concerns submitted by DOC as rational bases for the current policy."

In Murphy v. Missouri Dept. of Corrections, 2006 U.S. Dist. LEXIS 6118 (WD Mo., Jan. 30, 2006), a Missouri federal district court refused to grant a new trial to an inmate who claimed that erroneous jury instructions were given in his former trial involving free speech and RLUIPA claims. Among the instructions upheld by the court was one that characterized Plaintiff's request for religious accommodation as a request for "racially-segregated group services for the Christian Separatist Church". The court said that "racially-segregated" accurately describes the Christian Separatist Church.

Russian President Cautions About Religious Crimes

Interfax News Agency reports that last Friday, Russian President Vladimir Putin warned the Internior Ministry board that law enforcement agencies have underestimated the threat posed by the outburst of xenophobic, racial, national and religious crimes in Russia.

Muhammad Cartoon Reaction Continues; Danish Editor Responds

Reaction around the world to publication of caricatures of the Prophet Muhammad continues with unbelievable intensity. Here is Saturday's summary of developments from an article by the Associated Press:

Nigerian Muslims protesting caricatures of the Prophet Muhammad attacked Christians and burned churches on Saturday, killing at least 15 people in the deadliest confrontation yet in the whirlwind of Muslim anger over the drawings.

It was the first major protest to erupt over the issue in Africa's most populous nation. An Associated Press reporter saw mobs of Muslim protesters swarm through the city center with machetes, sticks and iron rods. One group threw a tire around a man, poured gas on him and set him ablaze.

In Libya, the parliament suspended the interior minister after at least 11 people died when his security forces attacked rioters who torched the Italian consulate in Benghazi.

Right-wing Italian Reforms Minister Roberto Calderoli resigned under pressure, accused of fueling the fury in Benghazi by wearing a T-shirt emblazoned with one of the offending cartoons, first published nearly five months ago in a Danish newspaper.

Danish church officials met with a top Muslim cleric in Cairo, meanwhile, but made no significant headway in defusing the conflict.

And in what has become a daily event, tens of thousands of Muslims protested - this time in Britain, Pakistan and Austria - to denounce the perceived insult.

Meanwhile, Sunday's Washington Post carries an op-ed, Why I Published Those Cartoons, by Flemming Rose, culture editor of the Danish newspaper Jyllands-Posten (the paper in which the cartoons were first published). He says:

I commissioned the cartoons in response to several incidents of self-censorship in Europe caused by widening fears and feelings of intimidation in dealing with issues related to Islam. And I still believe that this is a topic that we Europeans must confront, challenging moderate Muslims to speak out. The idea wasn't to provoke gratuitously -- and we certainly didn't intend to trigger violent demonstrations throughout the Muslim world. Our goal was simply to push back self-imposed limits on expression that seemed to be closing in tighter.

UPDATE: On Sunday, two Saudi papers carried a full-page ad dated Feb. 5 in which Carsten Juste, the editor of Jyllands-Posten, apologized for the cartoons published by his paper. (Reuters.)

2nd Circuit Applies RFRA To Private ADEA Claim

On Thursday, the U.S. Second Circuit Court of Appeals issued fascinating majority and dissenting opinions in a case in which a Methodist minister claimed that his church violated the federal Age Discrimination in Employment Act by forcing him into retirement because he had reached the age of 70. In Hankins v. Lyght (2nd Cir., Feb. 16, 2006), Judge Winter’s majority opinion rejected the district court’s application of a “ministerial exception” in ADEA cases. It held, instead, that the Religious Freedom Restoration Act now sets out the controlling standard. Under RFRA, the case should be dismissed if the application of the ADEA would place a substantial burden on the exercise of religion by the church or its Bishop, unless it is shown that the ADEA furthers a compelling interest in the least restrictive manner. The majority remanded the case to the district court for it to apply the RFRA standards to the facts. In the course of reaching its conclusion, the majority also clearly held that RFRA was constitutional as applied to the interpretation of federal statutes.

Judge Sotomayor’s dissent argued first that the church and Bishop Lyght had waived reliance on RFRA, and instead were relying only on the free exercise and establishment clauses. Second, the dissent argued that RFRA only applies to claims against the government, and does not apply in suits between private parties. Finally, Judge Sotomayor argued that Congress did not intend the ADEA to apply to the selection or dismissal of clergy by a religious body.

US In Dispute Over Discovery In Suit Against Hollywood, Florida

This week brought interesting skirmishing in a federal lawsuit against the city of Hollywood, Florida, accusing it of religious discrimination in its refusal to permit an Orthodox Jewish Chabad group to hold religious services in a house in a neighborhood zoned as residential. (See prior posting.) Yesterday’s South Florida Sun-Sentinel detailed the legal maneuvering. The Justice Department asked the court to impose sanctions on the city for its belated production of police memos describing police surveillance of the home of Rosa Lopez. Lopez claims the Virgin Mary appears at her Hollywood home on the 13th of each month. Approximately 100 people show up each month to pray and seek miracles, and the city has never tried to prevent that under its zoning laws. The government is pointing to this discrepancy in making its discrimination claim. The city argues that Lopez’s home is not a house of worship and does not need a special zoning exception.

Justice Department attorney Sean Keveney argued that had the federal government known police were watching Lopez, it would have done its own surveillance to possibly "rebut any testimony offered by the city." Keveney also said the city has provided incomplete information on why it contends Lopez’s home is not a house of worship.

Hindus Split On How Textbooks Should Portray Them

Today’s San Jose Mercury News reports that in California, efforts by the state Board of Education to more accurately portray Hinduism in school textbooks are meeting new complications. (See prior postings 1, 2 .) Initially, a number of changes were proposed by two Hindu groups, the Vedic Foundation and the Hindu Education Foundation. Their proposals would change the depiction of women, low-caste Indians (dalits) and the diversity of spiritual beliefs to create what these groups argue is a more accurate and balanced portrayal of Hinduism. However, other Hindus now argue that these changes are an attempt to whitewash history and promote a Hindu nationalist agenda.

In September the state's Curriculum Commission hired Indian historian Shiva Bajpai, who had been recommended by the foundations, to review the proposals. He endorsed most of the revisions. But just before a November meeting to approve them, 50 other leading professors wrote the board urging it to reject the changes. Over the winter, hundreds of other scholars from the nation's leading research universities also wrote to protest the changes.

In the midst of this, Indian dalits ("untouchable class") in the United States became more vocal. They are demanding that the term “dalit” not be omitted from textbooks, as the Hindu groups want. The dalits also have asked that a photo of a dalit cleaning a latrine be replaced with one of a dalit engaged in a faith practice. They say that it would serve the dalits' cause better if the textbooks said that "untouchability is a living reality in India," instead of accepting the Foundations’ suggestion that to have textbooks read that it is illegal to treat someone as an untouchable. (India West report.)

Dismayed by all of this, the board of education has created a new review committee, held a private meeting and solicited the opinions of non-Hindus. In response, the Hindu American Foundation is considering legal action.

9th Circuit Hears Argument In Library Use Case

The Mercury News reports that yesterday, the U.S. 9th Circuit Court of Appeals heard oral argument in Faith Center Church Evangelistic Ministries v. Glover (LEXIS link to trial court decision). The case involves a challenge by a Christian group that was prohibited from using a library meeting room for prayer services. The group argues that the library’s policy of excluding religious services and activities is discriminatory and violates the its free speech rights. Kelly Flanagan, attorney for Contra Costa County, argued that religious groups have free access to public library facilities, but allowing prayer services would mean taxpayers would be subsidizing religion.

On-Premise Aid For Disabled Student At Parochial School Upheld

In a recently-published decision, Bay Shore Union Free School District v. T, 405 F. Supp. 2d 230 (EDNY, Dec. 21, 2005), a New York federal district court held that New York’s education law requires the state to furnish a one-on-one aide at the parochial school of a student diagnosed with ADHD. The court held that neither the religious liberty guarantee nor the prohibition on using state funds to aid religious denominations found in the New York Constitution bar providing special educational services to a disabled student on the premises of a parochial school. No party claimed that such aid would violate the U.S. Constitution’s Establishment Clause. The court also observed that substantial free exercise concerns would be raised if New York’s education law were interpreted in a manner that required handicapped students to choose between receiving needed services and attending the private school of their choice.

Grotto Historical Marker OK'd By Kentucky AG's Office

In Louisville, Kentucky, the wording on a historical marker at the Grotto and Garden of Our Lady of Lourdes apparently will stay as it is. The marker, put up by the Kentucky Historical Society, says the local grotto is modeled on the natural grotto at Lourdes, in southwest France, "where Virgin Mary appeared to Bernadette Soubirous in 1858." After someone questioned the constitutionality of that language, state Rep. Jim Wayne (on behalf of the St. Joseph Area Association) asked the state attorney general's office for a ruling. (Background report.) A response from the attorney general's office concluded there was no establishment clause problem with the wording. A letter from Robert S. Jones, executive director of the Attorney General's office of civil and environmental law said: "Plainly, this marker does not convey a message of governmental endorsement of religion." Today's Louisville Courrier-Journal reports on these developments.

New Hampshire Supreme Court Upholds Bishop's Right To Sell Church Property

In Berthiaume v. McCormack (Feb. 14, 2006), the New Hampshire Supreme Court upheld the dismissal of a suit brought by members of a Nashua, New Hampshire Catholic parish against the Roman Catholic Bishop of Manchester challenging the proposed sale of St. Francis Xavier church. the court held that, consistent with the First Amendment, it could resolve church property disputes using neutral principles of law. It said it would first consider secular documents such as trusts, deeds, and statutes, and only if those documents left it unclear which party should prevail would it consider religious documents, such as church constitutions and by-laws. It went on to hold that while New Hampshire statues require that parish property must be held for the use and benefit of the parish and its parishioners, the church property at issue does not belong to the parish, but is property held by the Bishop.

Debate On Invocation Gets Ugly In Georgia City Council

Yesterday's Morgan County Citizen reported that the debate over legislative prayer has gotten ugly in Madison, Georgia. On Monday, just before calling City Council meeting to order, Mayor Tom DuPree asked Rev. Hoke Smith of Calvary Baptist Church to deliver an invocation. Immediately after the prayer, council member Michael Naples challenged the mayor's right to ask someone to deliver an opening prayer without prior approval by Council. He moved that the mayor stop the practice, or else that the mayor move the prayer outside the meeting building. That motion died for lack of a second. Naples immediately proposed a new motion to require that the mayor bear all litigation costs resulting from challenges to prayer at Council meetings. "I'll second that motion," said council member Barry Lurey. The motion eventually passed 3-2.

Later at the end of the meeting, the agenda called for public comment. At that time, Rev. Smith who was distressed over criticism of his opening prayer stood up to describe his reaction: "I thought I'd died and gone to hell, and the devil said, 'You're not going to pray down here'. Then I looked over to the side and I saw Barry Lurey, a Jew, down here in Hell. Looked and I seen a Catholic down here, and I had to shake myself."

US Palestinians Want Secular Palestinian State; Israeli Arab Parties Push Caliphate

Today's issue of The Forward says that Palestinian-American leaders will warn Hamas against turning the West Bank and Gaza into an Islamic theocracy. The Americans say that they will push for laws favoring American-style church-state separation, pluralism, equality and inclusiveness. Ziad Asali, president of the American Task Force on Palestine, at recent Washington press conference introduced a new document, A Vision for the State of Palestine. The document, prepared before the recent PA election when it was still expected that the secularist Fatah movement would control the new parliament, sets out the suggested core values and principles on which a future Palestinian state should be founded.

Meanwhile, in Israel, according to Ynetnews, three right-wing parties yesterday asked the Central Elections Committee to disqualify the United Arab List-Ta'al party from running in the upcoming Israeli elections. Arab list chairman Sheikh Ibrahim Sarsur, in a press conference Wednesday, said that the rule on earth, or at least the rule in Arab and Muslim lands should be led by the Caliph. National Union-NRP Knesset Member Yitzhak Levy wrote to Judge Dorit Beinish, head of the the Elections Committee, saying that Sarsur's remarks called for Islamic rule in the state of Israel.

No New Trial For Defendant Told To Hide Cross He Was Wearing

In State v. Byrd, (Feb. 14, 2006), the Minnesota Court of Appeals rejected Carnell Byrd's claim that he is entitled to a new trial on robbery and gun possession charges. At his trial, Byrd appeared wearing a cross. The trial judge told him that he could decide whether the cross would remain visible or be concealed under his shirt and that, if he chose to leave it visible, he was entitled to a hearing on the matter. Byrd, without speaking, placed the cross under his shirt and did not refer to it again. The appellate court held that since Byrd was not ordered, but instead chose, to wear his cross inside his shirt, his rights were not infringed. The court added, even if he had been ordered to conceal the cross it would not entitle him to a new trial.

St. Louis Inmate's Free Exercise Claim Moves Ahead

In Chapman v. Stubblefield, 2006 U.S. Dist. LEXIS 5522 (ED Mo., Feb. 13, 2006), a Magistrate Judge in Missouri federal district court ordered St. Louis Justice Center officials to respond to inmates' charges that their free exercise of religion is infringed by the jail's policy of allowing only five prisoners at a time to attend worship services.

Teachers May Sue School To Lead Good News Club

In Moab, Utah, two teachers at Helen M. Knight Intermediate School claim that their free exercise rights are being infringed because the Grand County School District refuses to permit them to lead after-school meetings of the Christian outreach Good News Club for students. Today's Salt Lake Tribune reports on the dispute. School officials say allowing the teachers to lead the Club would violate constitutional separation of church and state because teachers are still on school time under their contracts for the first 15 minutes of the club meeting, and leaders of all after-school clubs receive a $15 stipend per meeting that comes partly from public monies. The teachers have offered to forego the stipend, but the school says that is insufficient. It suggests that club meetings be held at another location or that it pay a small fee to rent space at the school. Alternatively, a non-school employee could lead the Club.

Teachers Konnie Pacheco and Paula Radcliffe are consulting with the American Center for Law and Justice about filing suit. School board president Kaaron Jorgen said she worries that representatives for the teachers hope to "use Grand County as a test case" for forcing public schools to allow teachers to teach religion. "It seems it's not about what's good for the kids; it's about adults trying to further their own agenda," she said.

Establishment Clause Challenge To Funding Faith-Based Prison Program Upheld

In Moeller v. Bradford County, (MD Pa., Feb. 10, 2006), a Pennsylvania federal district court refused to dismiss taxpayers' Establishment Clause challenge to federal, state and local government funding given to Firm Foundation to operate the only vocational training program available in the Bradford County, Pennsylvania jail. The Firm Foundation, a Christian prison ministry, routinely proselytizes inmates in the vocational training program, and does not make an effort to segregate government funds for the purely secular purpose of vocational training. The court found that participation in the program was sufficiently coercive to constitute an Establishment Clause violation and rejected Firm Foundation's argument that it could not be a state actor covered by the Establishment Clause. The court also upheld plaintiffs' standing as taxpayers to challenge the use of federal funds for the program.

Italian Court Rules Crucifixes To Remain In Schools

ANSA reported yesterday that the Council of State, Italy's highest administrative court, has ruled that crucifixes should remain in Italy's school classrooms as a symbol of Italian values. The issue arose in a case brought by a Finnish woman who asked that crucifixes be removed from the Padua school attended by her children. The court's 19-page opinion said that the crucifix is not just a religious symbol, it is also a symbol of "the values which underlie and inspire our constitution, our way of living together peacefully". The judges said principles such as tolerance, respect and the rights of individuals, now part of Italy's secular state, had their origins in Christianity. "In this sense the crucifix can have a highly educational symbolic function, regardless of the religion of the pupils," they added . Judges also argued that the concept of the secular state is interpreted and applied in different ways according to a country's history .

Justice Ginsburg's Relation To Her Judaism Explored

The February issue of Moment magazine carries a fascinating article on Supreme Court Justice Ruth Bader Ginsburg's ambivalent relationship with her Jewish religious heritage. The article is written by Abigail Pogrebin, adapted from her book Stars of David. The article reflects Ginsburg's alienation from organized Jewish religious institutions, but her strong devotion to Jewish ethical values and her sensitivity to her Jewish identity.

On the walls of Ginsburg's chambers are framed calligraphies of the command from Deuteronomy (in Hebrew), Zedek, Zedek, tirdof ("Justice, justice shalt thou pursue"). Ginsburg points out that she has a mezuzah on the door of her office, and does not place a Christmas wreath there when other doors in the Court are decorated for Christmas. She, along with Justice Breyer, convinced their colleagues to change Court policy so that the Court would not sit on the first Monday in October when that day coincides with Yom Kippur. Asked how being Jewish affects her approach to court cases, Ginsburg replied, "I don't think that I approach cases in a particular way because I am Jewish any more than I do because I' a woman. I have certain sensitivities for both." (The opening paragraphs of the article are available online.)

Congress Urges Proclamation On American Jewish History Month

Both the U.S. House and Senate have passed H. Con. Res. 315, encouraging the President to issue a proclamation for the observance of an American Jewish History Month.

Europe Continues To React To Muhammad Cartoon Controversy

European countries continue to react in various ways to the publication of cartoons of the Prophet Muhammad and the widespread, often violent, reaction by Muslims in some countries. Members of the European Parliament debated the issue yesterday, and are expected to vote on resolutions today. Extensive portions of the debate have been published. There was widespread agreement on the need to respect religious beliefs, but also on the need to condemn violence and protect freedom of speech.

[UPDATED] Meanwhile, a story published yesterday by Islam Online and now available in Turkish Weekly reported that Norway's parliament had amended the Norwegian Penal Code to criminalize blasphemy, according to Norway's Deputy Archbishop Oliva Howika. Islam Online said that Howika told reporters after a meeting with Sheikh Yusuf Al-Qaradawi, the head of the International Union of Muslim Scholars, in Doha, Qatar, that Norwegian law now clearly prohibits despising others or lampooning religions in any form of expression, including the use of photographs. There is question, though, about the accuracy of this report. Islam Online itself has removed the article, and Judeoscope prints this cautionary statement about the report:

We reported 14 hours ago Islam Online’s claim that Norway had passed an anti-blasphemy law with a word of caution, since Judeoscope was unable to confirm the enws story independently. Calls to Norvegian diplomats and a review of Norway’s press reveal that if the Nordic country had indeed passed such legislation, its parliament is doing a magnificient job at hiding it from its constituents. It is, however, more likely that the report is tantamount to a propaganda ploy reflecting the wishful thinking of Muslim Brother Yusuf al-Qaradawi and his mouthpiece, Islam Online.

Interfax yesterday reported that the Russian Federal Media Control and Cultural Heritage Protection Service says that Russian media publishing articles that may offend people's religious feelings will be subjected to punitive measures, including the annulment of their registration.

UPDATE: Thursday's Washington Post carried an excellent article reviewing on a month-by-month basis developments in the cartoon controversy.

Ten Commandments Blurred In Pennsylvania Supreme Court Photo

The Associated Press reports that in Pennsylvania, Allegheny County Judge Cynthia A. Baldwin found herself in the middle of a dispute not of her making during hearings on her nomination to fill an unexpired term on the Pennsylvania Supreme Court. One of four murals by artist Violet Oakley in the courtroom of the state Supreme Court is The Decalogue - Hebrew Idea of Revealed Law. In a brochure about the supreme court, a photo of the justices at the bench has a blurred background that hides the Ten Commandments in that mural. A separate photo of the mural is printed clearly elsewhere in the same brochure, along with the other Oakley paintings. At the confirmation hearing, Sen. Jeffrey Piccola, (R-Dauphin) asked Judge Baldwin to to prevent the painting from again being blurred out in any updated court portrait. Supreme Court officials said that the brochure was produced while the Ten Commandments cases were pending in the U.S. Supreme Court. The blurring of the mural was decided on so that later the court would not find itself in the position of having to destroy copies of the brochure.

9th Circuit Hear Arguments In Boy Scouts Case

Yesterday in the U.S. Ninth Circuit Court of Appeals, lawyers argued Barnes-Wallace v. Boy Scouts of America. The appeal involves a 2003 district court decision (275 F. Supp.2d 1259) holding that the Boy Scouts of America is a religious organization and that the preference given by the city of San Diego in leasing property to the scouts violated the Establishment Clause by advancing religion. Extensive background on the case is in this Union-Tribune article. A report on the oral arguments, is in yesterday's San Jose Mercury News.

Afghan MP Urges Women Parliamentarians To Travel With Chaperones

At the end of January, several members of Afghanistan's Parliament traveled to London to participate in an international donor's conference. Two of the Parliamentarians were women. Yesterday's Christian Science Monitor reports that Al-Hajj Abdul Jabbar Shalgarai, a conservative member of Parliament also on the trip, complained that the women were in violation of Islamic law. They were traveling for more than three days without being accompanied by a male member of their family. As of now, these travel restrictions, known as mahram-e sharaii, have not been enacted by Afghanistan's Parliament as part of national law. However, Zeefunun Safi, a female member of Parliament, says that if a bill is introduced to require the practice, it may well pass. She says, "There are lots of women in Parliament against this, but they have to support it, because people will say, 'You are not our representative, get out of Parliament.' " Conservative Parliamentarian Shalgarai says no new law is required: "This country is the Islamic Republic of Afghanistan, and the Constitution says that nothing can be done in Afghanistan that is against sharia law."

Ontario Bans Arbitration of Family Law Matters By Religious Tribunals

The Toronto Star reported yesterday that the Ontario legislature has now formally passed legislation to prohibit the use of religious tribunals to decide divorce, custody and other family law disputes. Premier Dalton McGuinty originally focused on prohibiting the use of Shariah (Muslim law) to decide family law cases. There was widespread concern that panels applying Shariah would discriminate against women in their rulings. But the legislation that McGuinty introduced, and which now has passed, prohibits all religious arbitrations in Ontario. Bill 27-2006 provides that an arbitration in family law matters that is not conducted exclusively in accordance with the law of Ontario or of another Canadian jurisdiction, the decision has no legal effect. The new law is an amendment to the Ontario Arbitration Act of 1991 that generally provides for judicial enforcement of arbitration awards.

The Canadian Jewish News says that the impact of the new law on Jewish rabbinical courts (Bet Dins) is not completely clear. Apparently it will not impact their ability to issue a get in divorce actions. However, the absence of transitional provisions will call into question previous family law rulings of rabbinical courts that have not yet been incorporated into civil court decrees.

Maine Supreme Court Hears Tuition Voucher Arguments

The Portland Press Herald reports that yesterday, the Supreme Judicial Court of Maine heard oral arguments in Anderson v. Town of Durham, a case challenging a state law that prohibits the use of tax-supported tuition vouchers for religious schools. Plaintiffs are eight families from towns that do not have public high schools but pay for their residents to go to any schools that are "nonsectarian". They argue that the restriction on use of the vouchers for religious schools violates federal constitution's equal protection and free exercise clauses. The parents are represented by the Institute for Justice. The state was supported by the Maine Civil Liberties Union representing intervenors in the case (MCLU press release). The case was originally argued before the Maine Supreme Judicial Court in March 2005, but the justices set it for reargument after Justice Warren Silver joined the court in July, replacing retiring Justice Paul Rudman.

Two Pennsylvania Prisoner Claims Rejected

In Heleva v. Kramer, 2006 U.S. Dist. LEXIS 5237 (MD Pa., Jan. 27, 2006), a Pennsylvania federal district court held that an eight month delay by prison officials in getting to a prisoner two spiritual self-help books shipped to him in jail had not adversely impacted his sincerely held religious beliefs.

In Meggett v. Pennsylvania Dept. of Corrections, 2006 Pa. Commw. LEXIS 66 (Commonwealth Ct., Feb. 13, 2006), a Pennsylvania state court upheld the state prison system's regulations on hair length and styling against a prisoner who wished to wear dreadlocks as part of his Hebrew Israelite faith. The court held that while a practice is protected even when it is not a mandatory tenet of a religious faith, here the policy was a reasonable response to legitimate penological concerns.

Ohio Reversal-- No Teaching of Intelligent Design, At Least For Now

USA Today reports that Ohio's Board of Education voted today 11-4 to eliminate a passage in the state's science standards that arguably called for the teaching of intelligent design. It also voted to remove the related lesson plan and directed a committee to study whether a replacement lesson was needed. (AP report.) The vote eliminated from the 2002 science standards a provision saying that students should be able to "describe how scientists continue to investigate and critically analyze aspects of evolutionary theory." Ohio school board member Martha Wise, who pushed to eliminate the passage, praised the vote, saying,"It is deeply unfair to the children of this state to mislead them about science." The vote was a reversal of a 9-8 decision a month ago to keep the lesson plan. But three board members who voted in January to keep the plan were absent for today's vote. Supporters of the eliminated passage said they would seek another vote later. Said board member Michael Cochran, "We'll do this forever, I guess."

Georgia Governor Proposes Constitutional Amendment To Aid Faith-Based Programs

Georgia Governor Sonny Perdue announced today the reintroduction of a proposal to amend the Georgia Constitution to allow faith-based social service providers to compete for state funds. Georgia's constitution contains a "Blaine Amendment" that prohibits public funds from being used "directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution". The proposed amendment would qualify this provision by adding, "Except as permitted or required by the United States Constitution, as amended". This is the third time the Governor has attempted to get legislative approval of his Faith and Family Services Amendment. The resolution will require a two-thirds vote in the House and Senate, and approval by voters in the November 2006 election, in order to become effective. [Thanks to Joseph Knippenberg for the information.]

It's Valentine's Day-- So It's Time for A Religious Freedom Lawsuit

Hardly over the "Christmas Wars" in public schools, it appears that a "Valentine's Day Skirmish" has begun. A trial court in Harris County Texas has granted a temporary restraining order against the Katy, Texas Independent School District, ordering it to permit children to hand out to classmates valentines and candy containing religious themes. It also requires the schools to permit students to express their personal religious views in class discussions, writing assignments and non-instructional time, so long as it does not substantially disrupt school operations. The suit was filed by Liberty Legal Institute and the Alliance Defense Fund, and alleged that in the past, students had been prohibited from drawing religious images in an art fundraiser, mentioning Jesus in a class discussion on Easter, handing out faith bracelets during recess, talking about Jesus with other children during free time and silently praying. (LLI release- scroll to Feb. 13 releases; ADF release.) The full text of the complaint and a copy of the TRO are available online. In a release on the case, the school district said: "Because there was no real dispute about what would be allowed to happen tomorrow, the judge entered the TRO... The district believes that it is unfortunate that neither the plaintiffs nor their attorneys ever attempted to contact the school district to discuss this matter prior to filing the lawsuit. It was never the intent of the schools in question to limit what messages their students could exchange at tomorrow’s parties."

Will Scotland Force Catholic School To Become Muslim?

Those who argue that state funding of religious education can lead to undesirable state control now have a poster child in Scotland. In Britain, faith schools are government-funded. As of last August, there were 7,000 faith schools in England. Of these, 6,955 were Christian, with 36 Jewish, five Muslim and two Sikh schools. Tony Blair favors making it easier for independent schools, including Islamic, Christian and Jewish institutions, to opt into the state sector and receive state funding. (Education Guardian article.)

St Albert's Primary school in the Glascow suburb of Pollokshields is a state-funded Catholic school. However, more than 75% of its students are Muslim. Today's Education Guardian reports that pressure is now growing to turn this school, located in the midst of Scotland's largest Pakistani community, into a Muslim school. Currently there are no state-funded Muslim schools in Scotland. Last year, Glasgow's largest mosques and Muslim organizations formed the Campaign for Muslim Schools to press the issue. It's spokesman, Osama Saeed, said, "The national policy on faith schools is that, whenever there is a demand from a faith community, there should be a school. Ergo, there should be a Muslim school here." However Scotland's first minister, Jack McConnell, seems to believe that faith schools can be divisive. He has announced that children from denominational and non-denominational schools will be brought together for various activities like school trips and drama.

Proposed Israeli Constitution Has Controversial Provisions On Religion-State

Today, the Jerusalem Post reports, Israel's Knesset was presented with a draft of a Constitution for the country, along with background material written by constitutional experts. The 9,000 pages of documents were presented by Law and Justice Committee Chairman Michael Eitan to the Knesset on a CD. By a vote of 30-19 members agreed to pass on the draft proposal to the 17th Knesset. While Likud, Labor and Kadima MKs praised the draft, controversy surrounds its provisions on religion and state. National Religious Party leader Zvulun Orlev said, "This draft destroys the spirit and soul of Israel, it gives legitimacy to the separation of church and state in Israel." On the other side, Meretz leader Zahava Gal-On criticized the draft for failing to protect minority rights, saying, "It fails to protect Israel's minority communities, such [as] women, those who wish to marry outside the Rabbinate, Arabs, non-Orthodox Jews, and the homosexual community."

Paper Features Role Of Police Chaplains

While a good deal of attention has been focused recently on military chaplains, today's Texarkana (Texas/Arkansas) Gazette carries an article about the role of police chaplains. Tommy Gaither, a chaplain with the Texarkana, TX police, said: "As a chaplain, I ride with the officers 10 hours per month.... We don’t initiate religious conversation with them, but if they ask us a question or approach us about something, we are at liberty to talk with them."

Rev. Jerry Creek of the Southwest Arkansas Baptist Association, a former police chaplain who is now a military chaplain said that he approaches both chaplaincies alike: "No distinctions are ever made about denomination and we don’t push people towards religion. So many men and women are going off to war and many of them have questions. Our response is to ask them if they have accepted Jesus Christ as their Savior or if they are in the process. When they tell us they are in the process, we offer to help them."

Science Education In Ohio Under Examination

In Columbus tomorrow, Ohio's State Board of Education is expected to again discuss Ohio's science standards and model lesson plan that call for critical analysis of evolution, as concern over the constitutionality of Ohio's approach continues. (Akron Beacon Journal.) (See prior related postings 1, 2 .) The Discovery Institute, a supporter of the theory of Intelligent Design, today released a Zogby poll that it commissioned in Ohio. The poll concluded that 68.8% of respondents want scientific evidence against evolution taught along with evolutionary theory.

Today's Toledo Blade ran an article on what is actually happening in Ohio classrooms. It suggests that some of those teaching intelligent design may have aberrational views about other aspects of science as well:

Michael Maveal wants his eighth-grade students at Jones Junior High to know the truth - as he sees it. So, the Toledo Public Schools science teacher tells them that evolution is an unproven theory, as is creation. He teaches them about Nebraska man, a creature rejected by science long ago, to demonstrate the fallibility of evolution. He teaches them that Pluto has never been seen. (It has.) He teaches them that humans are not animals. (We are.) He teaches them about the famous scientific hoax, Piltdown man, once purported to be an early human ancestor.

"I'm not afraid of dealing with all the fakery that's going on in all the science community,'' Mr. Maveal said. "We have to present information to the kids so they can make an intelligent decision for themselves. "I tell them what the scientists won't admit."

While Mr. Maveal is unusual in his willingness to acknowledge his disbelief in evolution, and his highly skeptical treatment of generally accepted science, his approach reveals the turmoil that exists in some science classrooms.

Muslim Prisoners Want Better Food Options In Washington State

Today's Seattle Times carries a story on complaints of Muslim prisoners about the food available to them in Washington state prisons. Muslims who wish to follow their religion's dietary restrictions are limited to a lacto-ovo vegetarian meal plan, which includes eggs and milk products but not meat. Inmates would like a diet that includes meat that is Halal. Lawsuits that have been filed in Washington state charge unequal treatment because Jewish prisoners are furnished kosher meals that include meat.

British Artists Seek Repeal of Blasphemy Laws

According to today's London Times, author Phillip Pullman and director of the National Theatre, Nicholas Hytner, are leading a campaign to repeal Britain's blasphemy laws which apply only to blaspemy against the Church of England. The offense of blasphemy dates back to the 1697 Blasphemy Act, and to common law principles even older than that. The law was last used in 1977 in a private suit against Denis Lemon, editor of Gay News, for publishing a poem about a gay Roman Centurion’s love for Christ. The Church of England has, in principle, agreed to repeal of blasphemy laws, but has wanted to wait until the Racial and Religious Hatred Bill was enacted. That bill has now been passed, albeit in watered-down form. (See prior related posting.)

Turkish Court Sanctions Teacher For Wearing Hijab

The Associated Press reported on Saturday that Turkey's highest administrative court, the Council of State, has ruled that a teacher should not be promoted because she wears a Muslim headscarf (hijab) outside of school. Turkish law, attempting to maintain a secular state, prohibits wearing the hijab in schools and other public buildings. Even though the teacher, Aytac Kilinc, removes the scarf each day while teaching, the court said she was setting a bad example for young people and violated the secular principles of the Turkish state by wearing it elsewhere. Both Prime Minister Recep Tayyip Erdogan and Foreign Minister Abdullah Gul condemned the ruling. Kilinc said she will appeal the decision to the European Court of Human Rights. About 99 percent of Turks are Muslims, but the country for decades has attempted to limit Islamic influence, which some see as an obstacle to Western-style modernization.

Two Courts Refuse To Interfere With Ecclesiastical Decisions

An opinion in a case decided last August by the Common Pleas Court in Philadelphia has just been made available. In re The Greek Orthodox Kathedrikos of Saint George (Aug. 22, 2005) involved a claim that eight members of the St George Parish Council were improperly removed as council members and officers of the church. The court found that the selection of the Parish Council is inextricably enmeshed with the issues of the composition of the church hierarchy, and as such may not be reviewed by a civil court where, as here, the highest judicatory authority of that church has ruled on it.

Yesterday's New York Times reports on a decision this week by a New York trial judge permitting the Catholic archdiocese of New York to tear down Manhattan's St. Brigid's church and build residential apartments on the site. Dismissing a challenge brought by a group of former parishioners and the Committee to Save St. Brigid's, Justice Barbara R. Kapnick wrote, "This court finds that it would be an 'impermissible intrusion into Cardinal Egan's ecclesiastical authority to mandate that he use those funds to reopen the building as a church and/or to require him to operate a parish therein."

Recent Publications

New Book:
Rex Ahdar (University of Otago) & Ian Leigh (Durham University), Religious Freedom In the Liberal State (Oxford Univ. Press, Dec. 2005). [from Eugene Volokh via Religionlaw listserv.]

New Article (from SmartCILP):
Kevin Pybas, Does the Establishment Clause Require Religion To Be Confined To the Private Sphere?, 40 Valparaiso Univ. Law Review 71-112 (2005).

Christian-Based Prison Proposed In Texas

Yesterday's Houston Chronicle carries an interesting story on a proposal by Bill Robinson, a former convict who is now a prison minister, to build a Christian-based prison in San Angelo, Texas. Robinson's Corrections Concepts Inc. is negotiating with Tom Green County on the details of a $35 million, 624-bed facility. It would be open to prisoners within 30 months of release who volunteer for the program. "They'll walk out with a marketable skill, $1,000 in savings, embraced by a church and committed to their family," Robinson said. Once a final agreement with the county is reached, Robinson must have commitments from state and federal jurisdictions to send at least 310 inmates before his underwriter — an Atlanta-based organization that specializes in selling bonds for church construction — will commit to financing. The American Center for Law and Justice has drafted a legal memo for Corrections Concepts concluding that the proposal is constitutional because all inmates will volunteer for the program.

Today Is Darwin Day

Today is Darwin Day-- the the 107th birthday of Charles Darwin. Events marking the occasion are planned around the world. Hundreds of Christian churches throughout the country are marking today as Evolution Sunday. Organizers have obtained signatures of 10,000 clergy on a letter supporting the compatibility of Christianity with evolution. The letter reads in part:

[T]he timeless truths of the Bible and the discoveries of modern science may comfortably coexist. We believe that the theory of evolution is a foundational scientific truth, one that has stood up to rigorous scrutiny and upon which much of human knowledge and achievement rests. To reject this truth or to treat it as "one theory among others" is to deliberately embrace scientific ignorance and transmit such ignorance to our children. We believe that among God's good gifts are human minds capable of critical thought and that the failure to fully employ this gift is a rejection of the will of our Creator. To argue that God's loving plan of salvation for humanity precludes the full employment of the God-given faculty of reason is to attempt to limit God, an act of hubris. We urge school board members to preserve the integrity of the science curriculum by affirming the teaching of the theory of evolution as a core component of human knowledge. We ask that science remain science and that religion remain religion, two very different, but complementary, forms of truth.

In a related development, in Ohio last Tuesday, 23 of the 32 scientists on the state's Science Content Standards Advisory Committee sent a letter to Governor Bob Taft urging the state school board to repeal portions of its science standards and lesson plans. The Cincinnati Enquirer reported on the letter that said current state guidelines undermine evolution by urging teachers to "critically analyze" the theory.

Criminal Charges Filed For Importing Skull For Religious Ritual

Last Thursday at Ft. Lauderdale-Hollywood, Florida International Airport, federal agents arrested a Vodou priestess for attempting to bring into the country from Haiti the skull of a man for use in religious ceremonies. Today's South Florida Sun-Sentinel reports that Myrlene Severe is accused of smuggling a human head without proper documentation, failing to declare the skull to customs and transporting hazardous materials. She faces up to 15 years in prison. Rafael Martinez, an anthropologist and expert in Afro-Caribbean religions, said skulls are commonly used in two prominent South Florida religions: Vodou and the Afro-Cuban religion called Palo Mayombe. In Vodou, it is common for practitioners to put a human skull on an altar in the home dedicated to spirits of the dead known as gede. The spirits contained in that skull are thought to have a powerful, positive influence on one's life.

Photographer Protected Even When Art Offends Religious Beliefs

Nussenzweig v DiCorcia (Feb. 8, 2006), decided last Wednesday by a New York state trial court, involved a suit filed by Erno Nussenzweig, a Hasidic Jew, against Philip-Lorca DiCorcia, a professional photographer. DiCorcia took a series of photographs of persons passing through Times Square, including Nussenzweig. Without obtaining the consent of any of the individuals, DiCorcia used the photos in a gallery exhibition, and in a catalogue that was published to go along with the exhibit. Nussenzweig's religious beliefs are violated by the use of the photo. He believes that DiCorcia's use of his image violates the second commandment prohibition against graven images. Nussenzweig sued under New York's privacy law, but the court rejected his claim, finding that artistic works are protected by the First Amendment and are excluded from coverage under the privacy law:

Plaintiff argues that the use of the photograph interferes with his constitutional right to practice his religion. The free exercise clause, however, restricts state action.... There is no state action complained of in this case, only the private actions of defendants. ...

Clearly, plaintiff finds the use of the photograph bearing his likeness deeply and spiritually offensive. The sincerity of his beliefs is not questioned by defendants or this court. While sensitive to plaintiff's distress, it is not redressable in the courts of civil law. In this regard, the courts have uniformly upheld Constitutional 1st Amendment protections, even in the face of a deeply offensive use of someone's likeness.... [C]onstitutional exceptions to privacy will be upheld, notwithstanding that the speech or art may have unintended devastating consequences on the subject, or may even be repugnant. They are ... the price every person must be prepared to pay for in a society in which information and opinion flow freely. [Thanks to Marc Stern via Religionlaw listserv for information.]

Unconstitutional School Prayer Persists, and Some Support It

An AP story last week shows that translating U.S. Supreme Court precedent into practice is sometimes difficult. Despite the Supreme Court's 1963 decision in Abington School District v. Schempp that prohibited the practice, Mineral Ridge High School in northeastern Ohio has continued through the years to recite the Lords Prayer over the public address system in the morning before the Pledge of Allegiance and announcements. Only when the Warren Tribune Chronicle questioned the practice earlier this month did the school finally stop the practice. Some defend the school's ignoring of precedent. Commenting to Agape Press on Friday, Mat Staver, president and general counsel of Liberty Counsel, said that while the Supreme Court has found classroom recitation of the Lords Prayer to be an Establishment Clause violation, "that's clearly not the intent or purpose of the Constitution itself."

Italian Priest Cleared of Charges Filed For Claiming Jesus Existed

CNN on Friday reported in a case that has drawn international notice, that an Italian judge dismissed a suit against Enrico Righi, a local priest in Viterbo, a town north of Rome. An old schoolmate of the priest, Luigi Cascioli, filed a criminal complaint against the priest charging that Righi's assertions of Jesus' existence violated Italian laws against deceit and impersonation. (See prior posting.) Judge Gaetano Mautone suggested in his decision dismissing the charges that prosecutors should investigate Cascioli for possible slander. [Thanks for the lead to Douglas Laycock via Religionlaw listserv.]

Failure to Provide Christian Science Class In Prison Upheld

In Jerry v. Williamson, (Feb. 8, 2006), a Pennsylvania federal district court rejected the claim by Bernard Jerry, a state prisoner, that his free exercise rights were infringed when he was transferred to a prison that did not offer Christian Science instructional sessions. The court found that Jerry was free to receive Christian Science literature and to contact a nearby Christian Science community to attempt to find an advisor who was willing to meet with him at the prison. Concerns of cost and allocation of resources were found to be legitimate penological interests supporting the prison’s reliance on volunteers to provide instruction for religions that have few adherents in the prison system.

Satmar Dispute Decided By New York Trial Court

[REVISED] The Times-Herald Record (upstate New York) reports today on a New York state trial court decision in an ongoing battle between two factions in the Satmar Hasidic Jewish community (see prior posting). The decision in a dispute between the two sons of the Satmar grand rebbe resulted in a victory for Aaron Teitelbaum, the rabbi in Kiryas Joel. The paper reports:

In the dispute that began over ownership of the Kiryas Joel cemetery and ballooned into a larger fight for control of the Hasidic movement, acting state Supreme Court Justice Stewart Rosenwasser sided squarely with Aron's faction. Aron's rivals support his brother, Zalmen, chief rabbi in Williamsburg.

Rosenwasser agreed with Aron's side that the cemetery belongs jointly to the main Satmar congregations in Kiryas Joel and Brooklyn, not just the Brooklyn group. But more importantly, he declared that Aron supporter Berl Friedman remains president of the Brooklyn branch, rejecting claims that the grand rebbe expelled him in 2001.

By itself, the ruling appears to place control of the Williamsburg congregation, its property and other assets back in the hands of Aron's faction. Control of the Satmar's Williamsburg core could determine which brother succeeds their father as grand rebbe, the supreme leader of more than 100,000 Satmar followers worldwide.

Rosenwasser's decision contradicts a 2004 decision (now on appeal) by a different judge that left control of the Williamsburg congregation to Zalmen's side. That case is Matter of Congregation Yetev Lev D'Satmar Inc. v Kahan.

Finland Will Deny Licenses To New Private Religious Schools

The Finnish News Agency STT reports today that the Finnish government has decided to deny licenses for new private schools, as well as to turn down applications for the expansion of the activities of existing schools. Minister of Education Antti Kalliomaki said that it was not the function of schools to proclaim one single truth, religious or otherwise. "One school teaching according to the convictions of some and a second school teaching according to the convictions of others is not real pluralism," he said. Two Christian schools that are merely continuing their existing programs have received a 2-year extension of their licenses. Taneli Hassinen, chair of the board of the Centre for Christian Education, charged that the government decision to deny school licences violates Finland's constitution, the law on freedom of religion and international human rights conventions.

Catholics Insulted By Australian Senate Debate On RU486

In Australia, Parliament is debating a bill that would loosen current restrictions on the abortion drug RU486 by moving control of its use from the Health Minister to the non-political Therapeutic Goods Administration. (Herald Sun report.) With the support of many women senators, the Senate passed the bill on Thursday, and it now moves to the House of Representatives. (News.com.au report.)

Australian Catholics were particularly offended by the approach taken during the debate by some Senators who are members of the Australian Greens Party. Especially grating was a T-shirt, distributed by the YWCA, worn by Senator Kerry Nettle which aimed its message at Health Minister Tony Abbott. Emblazoned on the front of the shirt (pictured in this article from today's Herald Sun) was the slogan, "Mr. Abbott, Get your rosaries off my ovaries." Prime Minister John Howard said that the message was offensive to Catholics across the country. But, he said, Nettle has the right to express herself and it should not be a criminal offence to make derogatory remarks about a particular religion. The full text of the bill, all speeches made in the Senate debate on it, and other legislative material relating to the bill are available from Parlinfo Web.

Colorado Court Upholds Right of Both Divorced Parents To Influence Child's Religion

Yesterday, a Colorado Court of Appeals decided an important free exercise case involving conditions imposed in child custody orders. The case, In re the Marriage of McSoud (Colo. Ct. App., Feb. 9, 2006), involved a dispute between a boy's father who wished to raise him as Catholic, and the boy's Protestant mother. The 3-judge panel unanimously concluded, as have courts in other states, that absent a clear showing of substantial harm to the child, a parent who does not have decision-making authority with respect to religion nevertheless retains a constitutional right to educate the child in that parent's religion. However, the harm caused by one parent's disparagement of the other's religion or of the child's religion may be a compelling state interest that justifies a limitation on that parent's right to religious education of her child. But the court will not presume that mere exposure to a second religion causes harm. Harm must be shown in detail. The court also refused to find that the trial judge's religious beliefs warranted disqualifying him from deciding the case. The Associated Press has covered the decision.

Michigan Scout Troops Seek Private Sponsors To Avoid Establishment Clause Challenges

Echoing a similar report last month from Iowa, the McComb Michigan Daily reports that Michigan scout troops are following the advice of national scout leaders to end their ties with local governmental units and re-charter under the sponsorship of private groups. The move stems from fear of lawsuits against school boards and other public bodies because of the religious component in scouting activities. Last summer an Illinois federal district court held that government support of the Boy Scouts, to the exclusion of other groups, violates the Establishment Clause .

Islamic Conference Wants New UN Body To Also Prevent Religious Intolerance

The United Nations Commission on Human Rights has become so discredited that the United States and other nations have moved to create a new UN body to replace it, a Human Rights Council. Negotiations have been going on since last summer and have made progress, according to a briefing by a U.S. State Department official.

However, just as delicate negotiations on details of the new Council were beginning this week, the Organization of the Islamic Conference has called for the insertion of language requiring the new Council to "prevent instances of intolerance, discrimination, incitement of hatred and violence" arising from "any actions against religions, Prophets and beliefs". Yesterday's Financial Times says that supporters of the new Council fear that the OIC demand could be exploited by countries looking to undermine the creation of the HRC for other reasons. The OIC's move, growing out of the recent international furor over published cartoons of the Prophet Muhammad, has also caused concern over infringing free speech, and over possible delays if the proposal opens the door to demands on other specific issues. (See related Update at prior posting.)

Injunction Stay Pending Appeal Denied In Indiana Legislative Prayer Case

Indiana federal district court judge David Hamilton has written an extensive opinion supporting his refusal to stay his injunction, pending appeal, in the case that prohibited further sectarian prayer in the Indiana House of Representatives. In Hinrichs v. Bosma III, 2006 U.S. Dist. LEXIS 4740 (SD Ind., Jan. 24, 2006), the court held: "The defendant has not shown that he or others will suffer cognizable irreparable harm by complying with the injunction while the appeal goes forward. The injunction allows official non-sectarian prayers like those the Supreme Court approved in Marsh. Neither the defendant nor any other person has a constitutional right to use an official prayer to express and advance his personal religious beliefs. The balance of harms also weighs against a stay."

In concluding that House Speaker Bosma had showed no irreparable harm, the court said: "The Speaker's claim that the injunction interferes with his 'ability to accommodate the religious needs of those who lead these prayers' reflects a persistent misunderstanding of the court's decision and of the applicable law. All individuals -- the Speaker, all House Members, and any guests who might be invited to offer an official prayer -- retain the right to pray and worship as they see fit in private and non-official settings."

Discussing applicable precedents at length, the court said that it was not persuaded that defendants were likely to succeed on appeal either on their challenge to plaintiffs' standing or on the merits of the case. (See prior related postings 1, 2, 3.)

Air Force Issues Revised Religious Guidelines

The U.S. Air Force today issued a revised version of its interim religious guidelines. (Press release, Text of Revised Interim Guidelines, Explanatory Memo.) A first version of the Guidelines were issued in August 2005, and generated a good deal of controversy because of their insistence that prayers at military ceremonies be non-sectarian. Many Christian chaplains wanted to be able to mention Jesus in their public prayers. While today's new Guidelines still call for only a moment of silence or inclusive, non-denominational prayer at military ceremonies, they explicitly provide that military chaplains "will not be required to participate in religious activities, including public prayer, inconsistent with their faiths."

The new draft of the Guidelines, now shortened to one page, call for:

• Religious accommodation for military personnel.
• No endorsement of particular religious beliefs.
• Protection of voluntary discussion of religion.
• Public prayer limited to special ceremonies, and then it must be inclusive and non-denominational.

The conservative Christian group Focus on the Family issued a release praising the revised guidelines:

The guidelines appropriately caution superiors against making comments that could appear to subordinates to be official policy. With that in mind, they properly state that "superiors enjoy the same free exercise rights as all other airmen." Just as important, we hope these guidelines will bring an end to the frontal assault on the Air Force by secularists who would make the military a wasteland of relativism, where robust discussion of faith is impossible. That has not been the history of our armed forces, and it should not be their future. We particularly thank the Air Force for specifically recognizing that "voluntary participation in worship, prayer, study and discussion is integral to the free exercise of religion." Some have claimed an offense against the Constitution at the mere mention of these matters, although nothing could be further from the truth.

UPDATE: Statements from groups such as the Anti-Defamation League and Americans United for Separation of Church and State have criticzed the Air Force's amended Guidelines. Language that was in the earlier version that discouraged public prayer at "staff meetings, office meetings, classes, or officially sanctioned activities such as sports events or practice sessions" has been omitted from the shortened revised Guidelines. (New York Sun report, Feb. 10.)

Title VII Pre-Empts RFRA In Employment Discrimination Case

In Francis v. Ridge, (D VI, Dec. 27, 2005), Albion Francis claimed that the Transportation Security Administration's grooming policy for uniformed airport screening officers violates his free exercise rights as protected by the Religious Freedom Restoration Act. Francis wears his hair in dreadlocks for religious reasons. The federal district court for the Virgin Islands held that Title VII of the 1964 Civil Rights Act pre-empts RFRA in employment discrimination cases so that plaintiff was required to follow the exhaustion requirements of Title VII before filing an employment discrimination complaint.

EU Official Suggests Media Code On Religious Reporting

In an interview with today's News Telegraph, European Union Commissioner for Justice, Freedom and Security Franco Frattini suggested that European media adopt a voluntary code of conduct committing them to exercise "prudence" when reporting on Islam and other religions. Frattini suggested that the code be drawn up by the media with the assistance of the European Commission. The code would acknowledge the importance of respecting religious sensibilities of all religions. While Frattini's current proposal is obviously motivated by the "Muhammad cartoon" controversy, the European Commission has long wanted to introduce EU-wide legislation on fighting racism and xenophobia. [Thanks to The Editors Weblog for the information.]

Evangelical Group Moves To Intervene In AF Academy Suit

The National Association of Evangelicals on Wednesday filed a motion to intervene in a lawsuit that has been filed in federal court in New Mexico against the U.S. Air Force Academy charging it with illegal religious proselytization. (See prior posting.) The Associated Press reports that the group sought to intervene because this will permit it to introduce new facts, something it could not do merely as an amicus.

Paintings Excluded From Black History Month Display

In Deltona, Florida, city officials have refused to include three paintings by a local artist in an employee-organized Black History Month display in city hall because the paintings include religious elements. WorldNet Daily reports that one of the banned paintings depicts a New Orleans funeral procession. Another, entitled "3 a.m.," shows a partial Bible and part of the word "Jesus" on a church sign. "The Christmas Basket" shows a clergyman delivering food to a black family. With him are two people, one of whom wears a cap bearing the message "I (heart) Jesus." (The latter two paintings are pictured in the WND article.) Deltona's city manager says the paintings might be seen as government endorsement of religion.

UPDATE: Representing the artist, Liberty Counsel, a conservative legal advocacy group, demanded the city include Marcus' paintings in the display by Feb. 15 or face a federal lawsuit. (Report by AP.)

Evangelicals Urge Congress To Deal With Global Warming

Time Magazine reported that yesterday a group of 86 evangelical Christian leaders, in a move that opposes the position of the Bush White House, launched a campaign to educate Christians about climate change and to press Congress to act to reduce global warming. The group includes Pastor Rick Warren, author of the best-selling book, The Purpose-Driven Life. It also includes the presidents of 39 Christian colleges and heads of missionary organizations like the Salvation Army and World Vision. The group has issued a manifesto titled Climate Change: An Evangelical Call for Action, and it plans to launch a television ad campaign on Fox, CNN and local channels in nine states.

Wisconsin Bill Would Ban Teaching of Intelligent Design

In Wisconsin, according to the Baptist Press, state representative Terese Berceau announced on Tuesday that she has introduced a measure that would ban the teaching of Intelligent Design in Wisconsin public schools. Backed by 13 University of Wisconsin professors, the bill requires that any material presented as science in the public school curriculum must be testable as a scientific hypothesis, must describe only natural processes, and must be consistent with a description or definition of science adopted by the National Academy of Sciences. Berceau said teachers could still describe Intelligent Design and creationism in social studies or philosophy, or could even be include it in a science class so long as students are told that the theory is not science.

World Leaders Speak Out On the Muhammad Cartoons and Resulting Violence

This morning, during a photo opportunity at the White House, both President George W. Bush and King Abdullah II of Jordan spoke (full text) about the increasing violence around the world over published cartoon drawings of Muhammad:

PRESIDENT BUSH: ... We also talked about a topic that requires a lot of discussion and a lot of sensitive thought, and that is the reaction to the cartoons. I first want to make it very clear to people around the world that ours is a nation that believes in tolerance and understanding. In America we welcome people of all faiths. One of the great attributes of our country is that you're free to worship however you choose in the United States of America.

Secondly, we believe in a free press. We also recognize that with freedom comes responsibilities. With freedom comes the responsibility to be thoughtful about others. Finally, I have made it clear to His Majesty and he made it clear to me that we reject violence as a way to express discontent with what may be printed in a free press. I call upon the governments around the world to stop the violence, to be respectful, to protect property, protect the lives of innocent diplomats who are serving their countries overseas. ...

KING ABDULLAH: ... The issue of the cartoons, again, and with all respect to press freedoms, obviously, anything that vilifies the Prophet Mohammed -- upon him or attacks Muslim sensibilities, I believes needs to be condemned. At the same time, those that want to protest should do it thoughtfully, articulately, express their views peacefully. When we see protests -- when we see destruction, when we see violence, especially if it ends up taking the lives of innocent people, is completely unacceptable. Islam, like Christianity and Judaism, is a religion of peace, tolerance, moderation.

And we have to continue to ask ourselves, what type of world do we want for our children? I too often hear the word used as, tolerance. And tolerance is such an awful word. If we are going to strive to move forward in the future, the word that we should be talking about is acceptance. We need to accept our common humanity and our common values. And I hope that lessons can be learned from this dreadful issue, that we can move forward as humanity, and truly try to strive together, as friends and as neighbors, to bring a better world to all.

Elsewhere today, a joint statement (full text) was issued by UN Secretary-General Kofi Annan, European Union foreign policy chief, Javier Solana, and the head of the Organization of the Islamic Conference (OIC), Ekmelettin Ihsanoglu. They said: "We fully uphold the right of free speech. But we understand the deep hurt and widespread indignation felt in the Muslim World. We believe freedom of the press entails responsibility and discretion, and should respect the beliefs and tenets of all religions. But we also believe the recent violent acts surpass the limits of peaceful protest." (ISN report).

Meanwhile CNN reports new violence today over the cartoons, this time in Afghanistan where several people have been killed. New demonstrations also took place today in Iraq, Bangladesh and by Palestinians in the West Bank city of Hebron. In today's New York Times, art critic Michael Kimmelman writes a thoughtful piece on the subject titled A Startling New Lesson In the Power of Imagery.

5th Circuit Hears Arguments Today On School Board Prayers

The AP reports that arguments are scheduled for today in the U.S. 5th Circuit Court of Appeals on whether Louisiana's Tangipahoa Parish School Board can open its meetings with a prayer. The lower court, in Doe v. Tangipahoa Parish School Board, 2005 U.S. Dist. LEXIS 3329 (ED La., 2005), had held that precedents involving prayer in school classrooms, rather than the more permissive cases on opening legislative sessions with prayer, apply to preclude the school board's practice.

UPDATE: This AP article summarizes what went on at the oral argument.

Civil and Religious Law On the Muhammad Drawings

Issues of civil law and Islamic religious law abound in the continuing controversy over caricatures of the Prophet Muhammad which have now been published in papers throughout Europe, and elsewhere.

Yesterday, Deutsche Welle published an overview of the laws on blasphemy and incitation to religious hatred in eleven European countries. The controversial Muhammad cartoons might run afoul of some of these laws. In France, five Muslim organizations filed suit to prevent a French paper, Charlie-Hebdo, from publishing the caricatures. Scotsman.com reported yesterday that the court dismissed the case on the technical ground that the public prosecutor's office, which is always represented in French courts, was not properly notified of the case. The paper apparently plans to publish the illustrations today.

Townhall.com yesterday carried an excellent report from CNSNews analyzing whether or not Islamic law prohibits all pictures and drawings of the Prophet Muhammad. Reporter Patrick Goodenough concludes that opinions of Muslim scholars on the issue vary. Images of Muhammad have in fact appeared in Islamic art and literature over the centuries. And the same prohibition in Islamic law applies to pictures of any person, or even of animals. However, many news stories in European and American media have claimed that a prohibition on any picture of Muhammad was behind the intense reaction of Muslims around the world to the cartoons originally published in Denmark. An extensive selection of pictures of the Prophet Muhammad in Islamic artwork over the centuries, as well as depictions in non-Islamic sources, are reproduced in an Archive at zombietime.com. And at Get Religion blog, we are reminded (with photo) that Muhammad is among the nine lawgivers depicted in the frieze on the north wall of the U.S. Supreme Court.

Health Inspectors Did Not Infringe Religious School's Free Exercise Rights

In Youngblood v. Florida, 2006 U.S. Dist. LEXIS 4391 (MD Fla., Feb. 6, 2006), a Florida federal district court rejected claims brought by the pastor of First Conservative Baptist Church in Jacksonville against state health inspectors. The pastor had claimed that attempts by defendants to inspect not just the lunchroom, but also the playground and classrooms, of the Conservative Christian Academy operated by the church violated state and federal free exercise protections.

Muslim Prisoner's Free Exercise and Establishment Clause Claims Rejected

In Salahuddin v. Perez , 2006 U.S. Dist. LEXIS 4406 (SDNY, Feb. 2, 2006), a New York federal district court rejected a number of claims by Abdullah Y. Salahuddin, a Muslim inmate at New York’s Fishkill correctional facility. Among the rejected claims was Salahuddin’s allegation that his First Amendment right to the free exercise of religion was infringed by preventing 39 Muslim inmates from attending a January 1998 Eidul Fitr end of Ramadan celebration. The court also rejected Salahuddin’s claim that prison officials violated the Establishment Clause of the First Amendment when they implemented a theological educational program in the prison chaplaincy and educational department instead of through Plaintiff’s prisoner organization. Salahuddin had alleged that the decision resulted in favoring Christianity over Islam. The court held that it need not decide whether placing the educational program under Fishkill's chaplaincy and academic departments passed the Lemon test, because the decision was reasonably related to legitimate penological interests within the meaning of the Supreme Court’s 1987 decision in Turner v. Safley. [Thanks to Scott Idleman via Religionlaw listserv for the information.]