How Various Religions Fare In Court Challenges

At The Volokh Conspiracy, Prof. Greg Sisk (who is a regular at Mirror of Justice) is blogging all this week about his empirical research on how various religious denominations fare in free exercise challenges in the courts. Here is some of what he said in his first posting yesterday (which also contains links to the full studies):

First, those religious groupings that both today and historically have been regarded as outsiders or minorities, such as Jews, Muslims, Native Americans, and various others (including Jehovah’s Witnesses and Christian Scientists), did not succeed or fail in making religious liberty claims at a rate (controlling for all other variables) that was significantly different than for other religious classifications. In sum, with the potential exception of Muslim claimants in certain claim subcategories, religious minorities did not experience disproportionately unfavorable treatments in the federal courts of the 1980s and 1990s.

Second, two categories of religious affiliation by claimants emerged as consistently and significantly associated with a negative outcome—Catholic (at the 99% probability level) and Baptist (at the 95% probability level).

The question remains why those whose religious views are within the mainstream of American society would be significantly less likely to succeed in obtaining a court-ordered accommodation of religious practices. I’ll examine several possible answers to that question, beginning tomorrow.

U.S. To Oppose Current Version of UN Human Rights Council

The U.S. ambassador to the United Nations, John Bolton, announced on Monday that the U.S. would vote against the latest version of the resolution to create a new U.N. Human Rights Council unless negotiations are reopened to address serious deficiencies, especially the chance that countries abusing human rights can become Council members. (See prior related posting.) The U.S. wants to require a two-thirds vote of the General Assembly for a member to be elected to the new Council. The AP today reported on developments. The U.S. position puts it at odds with key human rights groups and many other U.N. members who believe that, while the current proposal does not go as far as they would like, it is still a significant improvement over the current discredited UN Human Rights Commission. They argue that reopening negotiations is likely to weaken, not strengthen, the new Council.

International Court Hearing Begins On Genocide Charges Against Serbia

The International Court of Justice heard arguments Monday by Bosnia accusing Serbia of genocide. This is the first time that a state, rather than individuals, has faced trial for humanity's worst crime. The Canadian Press reports that the hearings come 13 years after Bosnia filed the lawsuit against Serbia and Montenegro - the successor to Yugoslavia - charging it with a premeditated attempt to destroy Bosnia's Muslim population.

US Agency Says Iran Is Increasing Repression of Religious Minorities

Last Friday, the U.S. Commission on International Religious Freedom issued a release expressing concern over the worsening situation for religious minorities in Iran. Jews, Baha'i, Christians and Shi'a and Sufi Muslims have all experienced increasing repression. Since 1999, the State Department, at the urging of the Commission, has designated Iran as a "country of particular concern" under the International Religious Freedom Act. (See prior posting).

Crosses Along Highways Are Proliferating, Professor Says

Today's Salt Lake (Utah) Tribune chronicles the research of Southwestern University communications professor Bob Bednar who is looking at the growing number of crosses that have been placed by roadsides across the country to memorialize individuals who have been killed in traffic accidents. A lawsuit is currently pending in Utah, brought by the American Atheists, challenging the placement of crosses on public rights of way. Bednar has found similar crosses in numerous states. Bednar argues that the crosses are an unconstitutional use of a religious symbol by public agencies. Recently, the Utah legislature approved a resolution supporting crosses erected to memorialize fallen members of the highway patrol (HCR 4), saying they are not religious symbols. Bednar agrees that crosses are becoming secularized symbols of memorialization, but he would like to see the cross returned to its Christian roots.

9th Circuit Permits Sikh Prisoner's Claim To Go Forward

In Murray v. Arizona Department of Corrections, 2006 U.S. App. LEXIS 4577 (9th Cir., Feb. 13, 2006), the U.S. 9th Circuit Court of Appeals reversed the district court and permitted a Sikh prisoner to proceed with his claim that he was not allowed to engage in his religious practices and was discriminated against because of his religion.

2006 Christmas In Schools Controversies Begin

In Durango, Colorado, a high school student has created a controversy by formally asking the Bayfield School District Board to change the name of Winter Break to Christmas Break. Today's Durango Herald reports on the request which was made at last Tuesday's board meeting. Two ministers are among the board members. Janice McClain, a junior at Bayfield High, argued that the United States is an essentially Christian nation founded on Christian precepts and doctrine, and that the school district "is a Christian community". The board took no action, but board member Bill Faust promised not to ignore the issue. School superintendent Don Magill said, "I certainly understand her concern from a Christian perspective, but as a public institution, we need to be respectful of all faiths and those who profess no faith."

Utah Judge Removed By State Supreme Court For Polygamy

Yesterday, the Utah Supreme Court in the case of In re Inquiry of a Judge, The Honorable Walter K. Steed, (Feb. 24, 2006), upheld the recommendation of the state's Judicial Conduct Commission that Judge Walter Steed be removed from office because of his illegal practice of polygamy. The Associated Press reports that Steed has served for 25 years on the Justice Court in the polygamist community of Hildale in southern Utah. He has 3 wives and 32 children. Steed legally married his first wife in 1965. The second and third wives were married through religious ceremonies in the Fundamentalist Church of Jesus Christ of Latter Day Saints's in 1975 and 1985. The three women are sisters. Reacting to the Supreme Court's decision, Steed said: "I had hoped that the court would see my case as an opportunity to correct the injustices that are caused by the criminalization of my religious beliefs and lifestyle. I am disappointed the court did not reach those issues in my case."

IRS Report On Improper Non-Profit Political Activity

The Internal Revenue Service on Friday released a report on its Political Activity Compliance Initiative. The AP says IRS exams of 110 organizations referred to the IRS for potential violations found nearly three out of four churches, charities and other civic groups actually violated tax rules in the 2004 election. Most involved only a single, isolated episode; but in 3 cases, the IRS found violations egregious enough to recommend revoking tax-exempt status. "It's disturbing not because it's pervasive, but because it has the potential to really grow and have a very bad impact on the integrity of charities and churches," IRS Commissioner Mark Everson said in an interview.

Today's New York Times also covers the report and Commr. Everson's speech about it yesterday in Cleveland. The full text of the report and materials released along with it are online. Here is a summary of the alleged and determined violations from the Executive Summary:

• Charities, including churches, distributing diverse printed materials that encouraged their members to vote for a preferred candidate (24 alleged; 9 determined)
• Religious leaders using the pulpit to endorse or oppose a particular candidate (19 alleged; 12 determined)
• Charities, including churches, criticizing or supporting a candidate on their website or through links to another website (15 alleged; 7 determined)
• Charities, including churches, disseminating improper voter guides or candidate ratings (14 alleged; 4 determined)
• Charities, including churches, placing signs on their property that show they support a particular candidate (12 alleged; 9 determined)
• Charities, including churches, giving improperly preferential treatment to certain candidates by permitting them to speak at functions (11 alleged; 9 determined), and
• Charities, including churches, making cash contributions to a candidateÂ’s political campaign (7 alleged; 5 determined).

[Thanks to Blog From the Capital for the lead.]

Recent Publications On Church-State Issues

From SmartCILP:
Robert W. Gurry, The Jury Is Out: The Urgent Need For A New Approach In Deciding When Religion-Based Peremptory Strikes Violate the First and Fourteenth Amendments, 18 Regent Univ. Law Review 91-128 (2005-2006).

Symposium: Bankruptcy in the Religious Non-Profit Context, 29 Seton Hall Legislative Journal 341-557 (2005):

• Boozang, Kathleen M., Introduction - Bankruptcy In the Religious Non-Profit Context.
• Skeel, David A., Jr., "Sovereignty" Issues and the Church Bankruptcy Cases.
• Cafardi, Nicholas P., The Availability of Parish Assets for Diocesan Debts: A Canonical Analysis.
• Wells, Catharine Pierce, Who Owns the Local Church? A Pressing Issue For Dioceses In Bankruptcy.
• DiPietro, Melanie, The Relevance of Canon Law In a Bankruptcy Proceeding.
• Sargent, Mark A., The Diocese After Chapter 11.
• Carmella, Angela C., Constitutional Arguments In Church Bankruptcies: Why Judicial Discourse About Religion Matters.
• Brody, Evelyn, The Charity In Bankruptcy and Ghosts of Donors Past, Present, and Future.
• Davitt, Christina M., Student Article: Whose Steeple Is It? Defining the Limits of the Debtor's Estate In the Religious Bankruptcy Context.

Mirror of Justice has a review of Jay Sekulow's recent book, Witnessing Their Faith: Religious Influence on Supreme Court Justices and Their Opinions (Rowman & Littlefield, Nov. 2005).

Jury Award For Denying Religious Burial To Stillborn Fetus Upheld

Today's New York Daily News reports that a Brooklyn judge has upheld a $2 million jury award against Brooklyn Hospital Center in a case brought by a Nigerian couple whose 21-1/2-week stillborn infant's remains were disposed of by the hospital's pathology department instead of being turned over to the couple for a religious burial. The father is chief of the Ibo tribe in his homeland. The couple suffered severe emotional distress because they believe a soul wanders forever if a loved one is not interred in a tribal burial ground. The full opinion in Emeagwali v. Brooklyn Hospital Center (Sup. Ct. Kings County, Feb. 22, 2006) is available online.

Prisoner Free Exercise Decisions Newly Released

The Oregon federal district court has recently released its opinion in Alvarez v. Hill, 2005 U.S. Dist. LEXIS 40494 (D. Ore., Dec. 14, 2005). It granted summary judgment to defendants, finding that restrictions placed on a Native American prisoner at Oregon's Snake River Correctional Institution did not substantially burden his exercise of religion. Plaintiff had challenged prison regulations relating to religious volunteers, the frequency with which inmates were allowed to attend the sweat lodge, drum ceremonies, and the restrictions on wearing headbands.

In Young v. Medden, (ED Pa., Feb. 23, 2006), a wide-ranging lawsuit against prison officials, a Pennsylvania federal district court permitted a prisoner to proceed with various claims alleging violation of his free exercise rights and of RLUIPA. Willie Young, a believer in African Traditional Spirituality claimed that officials at two different prisons interfered with his ability to practice his religion.

In McElyea v. Schriro, 2006 U.S. Dist. LEXIS 6765 (D. Ariz., Feb. 13, 2006), an Arizona federal district court judge dismissed a Jewish prisoner's religious exercise claims, finding that the prisoner's "multiple frivolous motions and filings are malicious and vexatious and based on complaints which are designed to harass and antagonize the Defendants". His complaints centered primarily on his ability to observe certain rules regarding the Sabbath and kosher food, and on his objection to the prison's permitting persons to attend Jewish services who are not Jewish according to Orthodox Jewish religious law.

Conservative Ohio Board Member Defends Removing Intelligent Design

Conservative Republican Martha Wise was the leader in getting Ohio's Board of Education last week to remove references to Intelligent Design from Ohio's science curriculum standards. (See prior posting.) On Wednesday, she wrote a fascinating op-ed in the Cincinnati Enquirer:

I believe in God the creator. I believe in freedom. I believe in America, and the state of Ohio, and the Republican Party, fiscal conservatism, fairness and honesty. These values guided me last week to lead the Ohio Board of Education to remove creationism from our state's Science Standards and Model Curriculum.

You may ask: Why would being a creationist make me want to remove "critical analysis"/"intelligent design" creationism from the standards? It's simple, really: It is deeply unfair to the children of this state to mislead them about the nature of science. The future of Ohio's prosperity depends on a well-educated workforce that understands science. The future of religious freedom in this country depends on the electorate understanding that modern science is not a threat to faith....

Our board had to decide whether to waste millions of taxpayer dollars to hear a federal judge tell them the same thing Judge Jones told the Dover, Pa., board. We chose to stand up for kids, for the state of Ohio, for freedom of religion, and for the integrity of science. The public trusts us to uphold first-class standards and to protect democracy and religious freedom. So, we set aside our differences and did the right thing for Ohio and Ohio's children.

Israel Supreme Court Appoints Mediator In Dispute Over Museum Construction

Israel's Supreme Court has appointed retired Justice Meir Shamgar as a mediator to resolve a dispute over the building of a museum on the site of a ancient Muslim cemetery in Jerusalem. Rather ironically, the museum is being built by the U.S.-based Simon Wiesenthal Center to promote interfaith tolerance. The Wiesenthal Center says that the cemetery was deemed abandoned under a ruling of a Muslim judge. BBC News yesterday reported that the court ordered a suspension of construction work for 30 days while the mediator tries to fashion an acceptable compromise.

Convicted Sex Offender Raises Religious Objections To Electronic Monitoring

In Davis City, Iowa, a state trial judge faces an unusual problem of religious accommodation. According to today's Des Moines Register, Scott Smith was ordered, under Iowa's sex offender registry law, to wear an electronic monitor as a condition of his probation after he served 210 days on work release. But Smith says this will infringe on his religious beliefs. Smith was a leader in the Brotherhood of Christ when he was charged in 2003 with sexual abuse and indecent contact with two teenage girls. Brotherhood of Christ members, including Smith's wife and children, live in a largely self-sufficient Iowa community that prohibits the use of electricity, claiming that using electricity in daily life can cause people to disobey God. Smith lives in a home without electricity, telephone or running water on land adjacent to church property. His family visits him there. Brotherhood of Christ leader, Ron Livingston, said the court-ordered electronic monitor in the home could adversely influence Smith's children and take away from the teachings of the community. Livingston testified that Smith has been told he might be allowed back into the fold if he follows its religious requirements.

Hindu Board Calls For Murder Of Controversial Artist

WebIndia123 today has a rather astounding report from the Indian state of Uttar Pradesh. It says that after the state's Haj Minister, Haji Yaqub Qureshi, offered a reward of 510 million Rupees (approx. $11.5 million) to anyone who killed the Danish cartoonist who drew the now-infamous caricatures of Muhammad, the state's Hindu Personal Law Board decided to follow suit. It announced a similar reward for anyone beheading prominent artist M.F.Hussain. Hussain is charged with portraying Hindu deities and Bharat Mata in the nude. His painting was displayed on a website, and in an exhibition in New Delhi. Ashok Pandey, president of the Hindu Personal Law Board was quoted as saying:

Those who are endangering religion and nation, should be eliminated for everyone's good. Anyone who kills Hussain for making obscene paintings of goddess Sarswati and Bharat Mata, the Danish cartoonist, those in the German company printing pictures of Ram and Krishna on tissue paper and the French filmmaker desecrating Lord Shiva will be given Rs 51 crore in cash.

Hussain has apologized and withdrawn the picture from auction.

HHS Settles With ACLU In Challenge To Funding Of Abstinence Program

Yesterday it was announced that the U.S. Department of Health and Human Services has entered a settlement with the American Civil Liberties Union in a case challenging the constitutionality of federal funding of an abstinence-only sex education program know as "The Silver Ring Thing". (ACLU release.) The ACLU charged that the program was using taxpayer funds to promote religious doctrines. HHS already suspended funding of SRT in August 2005, saying that the program "may not have included adequate safeguards to clearly separate in time or location inherently religious activities from federally-funded activities." In yesterday's settlement (full text), HHS agreed that it will not fund SRT's program as currently structured. In any future applications for federal funding, SRT must comply with prohibition on using federal funds to support inherently religious activities. In addition, HHS agreed to closely monitor any grant applications by SRT for the next two years. The Alliance Defense Fund, which had intervened in the case to support SRT, said that it was pleased that SRT would be permitted to apply for funding in future years. (Report from The Reality Check.)

Non-Buddhists Object To New Broadcast Services In Bhutan

In the Himalayan Kingdom of Bhutan, the government, with the aid of the International Telecommunications Union, has begun to offer nationwide satellite television services. Yesterday's Asia News reports that while Bhutanese authorities see this as a landmark, minority religious groups are protesting that it is a tool to entrench Buddhist cultural hegemony over the country and keep control over other groups. Kamali Chetri, a nurse, complained that with programming that is largely Buddhist in content, "the gap between the Buddhist majority and immigrant Hindus, Christians and Nepalese animists is bound to grow. It doesn't really foster co-existence."

O Centro Impacts Peyote Charges In Utah

Today's Deseret News reports that the U.S. Attorney's Office for Utah has announced it is dropping felony peyote distribution charges against the founders of a Utah County-based Native American Church. While the announcement came one day after the U.S. Supreme Court held that the Religious Freedom Restoration Act protected a Brazilian church's use of hoasca, the decision to drop the peyote charges stemmed from an agreement with prosecutors signed two weeks ago by James "Flaming Eagle" Mooney and his wife, Linda Mooney. The agreement provided that charges would be dropped in exchange for the Mooneys agreeing to refrain from possessing, buying, using or distributing peyote "until they become members of a federally recognized tribe or there is a definitive clarification of the law regarding the use of peyote by court ruling or legislative action." Under the agreement, the Mooneys can be re-indicted on the same charges if they violate its terms. The statute of limitations were also waived on the charges.

In light of the U.S. Supreme Court's decision in the O Centro case, Mooney now says he will seek to have the court throw out his agreement with prosecutors and confirm his right to use peyote in religious ceremonies. Mooney says that while he fights his agreement, members of his church should be free to resume their ceremonies without his participation. However U.S. District Attorney Criminal Division Chief Richard Lambert took the position that federal law still requires anyone who uses peyote for religious purposes to be a member of a federally recognized Indian tribe. "Congress has spoken on this," Lambert said, pointing out that unlike hoasca, which is unregulated, Congress has specifically regulated peyote. He said that anyone using peyote who is not a member of a federally recognized tribe, including members of Mooney's church, is still breaking the law.

Dispute Over Muslim Census In Indian Armed Forces

India's Supreme Court has set March 6 as the date to hear a challenge to a proposed census of Muslims serving the the armed forces of India. Yesterday's edition of The Hindu reported that the Court refused a plea to speed up its hearing on the case brought by Lt. Gen R. S. Kadyan, a former Deputy Chief of the Army Staff, who contends that the census would be divisive and would undermine the secularism of the armed forces. However the case may be moot. Yesterday the UPI reported that India's Defense Minister, Pranab Mukherjee, told the upper House of Indian Parliament that the armed forces would be excluded from the survey. The controversy began after Indian Prime Minister Manmohan Singh set up a committee, headed by former Chief Justice of the Delhi High Court, Rajinder Sachar, to study the status of the country's Muslim minority and suggest ways to improve their social mobility. (Background).

Competing Opinions On Constitutionality Of Utah's Proposed Voucher System

The Salt Lake Tribune reports that on Wednesday, the Utah School Boards Association released two legal opinions that say H.B. 184, a school voucher bill before the Legislature, is unconstitutional. Former Utah Supreme Court Justice Michael D. Zimmerman said HB184 violates prohibitions in Utah's constitution against using public funds for religious education (Art. I, Sec. 4, Art. X, Sec. 9). A second opinion, by attorney Harold G. Christensen, says that the voucher bill violates Utah's constitutional provisions providing for the creation of a public education system (Art. X, Sec. 1). Parents for Choice in Education disagrees, citing a legal opinion by attorney Maxwell A. Miller taking the position that the Utah constitution supports indirect funding for private education.

Catholicism Making Gains In Vietnam

Yesterday's Christian Science Monitor chronicles the quiet gains that Catholicism is making in Vietnam-- a country that the U.S. Commission on International Religious Freedom has categorized as a "country of particular concern" because of its more general lack of religious freedom. Of the country's six official religions, Catholicism ranks second behind Buddhism, claiming 5 to 7 million followers. It is gaining popularity among young urban Vietnamese who are enjoying the country's rapid economic growth. While Vietnam still does not have diplomatic relations with the Holy See, senior Vatican emissary Cardinal Crescenzio Sepe visited Vietnam in November ordaining 57 new priests at Hanoi's cathedral. Sepe also met with Deputy Prime Minister Vu Khoan. For many, Catholicism is still associated with the French colonizers whose rule ended in 1954.

Dover Schools Pay $1 Million To Plaintiffs For Lawyers' Fees

The Dover (Pennsylvania) Area School District, which in December lost a high profile case challenging its attempts to teach about intelligent design, has now agreed to pay $1 million to cover the plaintiffs' attorneys' fees. Lawyers say the settlement was designed to discourage school boards from considering similar action in the future. Yesterday's Philadelphia Inquirer reported that the school board unanimously approved the agreement at its public meeting yesterday. Board member Bryan Rehm, a plaintiff in the case, abstained.

School's Lease With Church OK Under Georgia Constitution

In Taetle v. Atlanta Independent School System, (Jan. 17, 2006), the Georgia Supreme Court held that the Georgia constitution was not violated by a school district leasing classroom space from a church to create a kindergarten annex. The lease, entered into in order to alleviate overcrowding in the public school, also provided that that the school system would pay for renovations and improvements on the church's property, for which it would receive a credit for rents owed. The court held that Georgia's prohibition on use of public funds to aid any church or sectarian institution did not preclude this sort of arms-length commercial lease.

German Man Prosecuted For Insulting the Quran

In Muenster, Germany, authorities are prosecuting a 61-year-old businessman under Section 166 of the German Criminal Code that prohibits insulting faiths, religious societies or organizations dedicated to a philosophy of life in a manner that is capable of disturbing the public peace. The businessman printed the word "Koran" on toilet paper and sent it to a mosque in Duisburg and to German television stations. Prosecutors say the case was brought to their attention by a complaint the government of Iran sent to the German foreign ministry in Berlin. Yesterday's Expatica reported on the case.

UPDATE: On Feb. 23, the AP reported that the businessman charged in the case was convicted of disturbing the peace and given a one-year suspended jail sentence.

Court Upholds Student's Dismissal For Suggesting Church

The decision has just become available in Watts v. Florida International University, 2005 U.S. Dist. LEXIS 40310 (SD Fla., June 9, 2005). The case, decided by a Florida federal judge some 8 months ago, involved John Watts, a state university student, who was terminated from a Master of Social Work program "for inappropriate behavior related to patients, involving religion". Watts recommended to a patient that she seek a bereavement support group. When the patient inquired where she could find such a group, Mr. Watts provided several options, one of which was "church," because the patient's assessment indicated that she was Catholic. The mention of a religious alternative was apparently the offending behavior. The court held that dismissing the student for giving this advice did not violate either his right to free speech or to the free exercise of religion. Watts did not show how preventing him from providing the information to the patient constituted a substantial burden on the exercise of his central religious beliefs.

Bahrain Defers Ratification of International Covenant on Civil and Political Rights

Bahrain's parliament yesterday refused to ratify the United Nations International Covenant on Civil and Political Rights, which has already been adopted by 146 other nations. Today's Gulf Daily News says that instead, Parliament referred the matter to its Foreign Affairs, Defense and National Security Committee to include reservations stemming from conflicts between the Convention and Islamic Sharia law. Among the concerns expressed by members of Parliament is the Convention's protection of the right to convert to another religion and the right of women to marry without their fathers' consent.

Anti-Harassment Training Does Not Infringe Free Exercise of Religion

Last Friday in Morrison v. Board of Education of Boyd County, (ED Ky., Feb. 17, 2006), a Kentucky federal district court held school training classes aimed at reducing anti-gay harassment did not burden students' free exercise of religion. The classes did not require any student to disavow his or her religious beliefs, or to endorse homosexuality, bisexuality or transgendered persons. The ACLU had joined the school district in defending against a challenge to the anti-harassment training sessions. (ACLU release.) Students challenging the training sessions were represented by the Alliance Defense Fund.

Preliminary Thoughts On Today's O Centro Decision

The Supreme Court's O Centro decision today, upholding a preliminary injunction requiring an exemption from U.S. drug laws for the sacramental use of hallucinogenic tea (see prior posting), is interesting for several reasons.

First, there was some uncertainty as to how broadly the Court would rule. (See prior posting.) In its actual decision, the Court resolved both the narrow issue of the standard for issuing a preliminary injunction under RFRA, and broader substantive issues of the meaning of RFRA. On the issue of the standard for a preliminary injunction, the Court ruled clearly "that the burdens at the preliminary injunction stage track the burdens at trial." It is the government's burden to show a likelihood of success on the merits at trial. It is not up to the challengers to prove that the government would likely fail at trial.

On the broader issue, the Court made it clear that when RFRA requires the government to show a compelling interest in order to substantially burden a person's exercise of religion; generalized interests are insufficient:

RFRA requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law 'to the person' -- the particular claimant whose sincere exercise of religion is being substantially burdened.

This does not mean that there can never be a compelling interest in uniformly applying a law to everyone. The Court says that if religious accommodations would seriously compromise the Government's ability to administer a law, that could be a compelling interest. The Court points to cases holding that exemptions to paying Social Security taxes could undermine the tax system, and exemptions to Sunday blue laws could undermine the need for a uniform day of rest. But the Court thought that O Centro was different:

Here the Government's argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government's argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I'll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to 'rule[s] of general applicability.'

This reasoning would seem to extend beyond RFRA and apply also to cases under the Religious Land Use and Institutionalized Persons Act.

The Court does not totally preclude the possibility that at trial, the Government will eventually be able to carry its burden of showing a compelling interest and that the Controlled Substances Act was the narrowest means of furthering that interest. It seems to particularly leave open that possibility in connection with the government's argument that it had a compelling interest in complying with the 1971 U.N. Convention on Psychotropic Substances. But so far the government has not, in the Court's view, made a persuasive case.

Finally, the Court did not accept the invitation of at least one amicus brief to focus on the constitutionality of RFRA as applied to the federal government. The opinion's language, however, suggests that while the Court previously struck down the application of RFRA to the states, it has little doubt about the constitutionality of RFRA as applied to federal regulations that impinge upon religious practices.

Supreme Court Upholds Church's Right To Use Hallucinogenic Tea

In a unanimous 8-0 decision today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal (full opinion), the U.S. Supreme Court ruled that the Bush administration cannot block a New Mexico church from using a hallucinogenic tea for religious purposes. Bloomberg News reports:

The U.S. Supreme Court, saying law enforcement goals in some cases must yield to religious rights, ruled that the Bush administration can't block a New Mexico church from using a hallucinogenic tea.

In a unanimous opinion written by Chief Justice John G. Roberts Jr., the court today said the church, a 130-member branch of a Brazilian denomination, is protected by the 1993 Religious Freedom Restoration Act. The justices upheld a preliminary injunction barring federal prosecution of church leaders.

The case put the Bush administration in the unusual position of opposing religious groups, including the U.S. Conference of Catholic Bishops and the National Association of Evangelicals, both of which backed the New Mexico church. The government contended the tea, known as hoasca, is dangerous and illegal.

Here are excerpts from the Court's Syllabus of its opinion:

The courts below did not err in determining that the Government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring the UDV's sacramental use of hoasca....
The Government's argument that, although [under RFRA] it would bear the burden of demonstrating a compelling interest at trial on the merits, the UDV should have borne the burden of disproving such interests at the preliminary injunction hearing is foreclosed by Ashcroft v. American Civil Liberties Union, 542 U.S. 656, 666....
Also rejected is the Government's central submission that, because it has a compelling interest in the uniform application of the Controlled Substances Act, no exception to the DMT ban can be made to accommodate the UDV.... RFRA and its strict scrutiny test contemplate an inquiry more focused than the Government's categorical approach.... [T]he Government's mere invocation of the general characteristics of Schedule I substances cannot carry the day.... The peyote exception has been in place since the Controlled Substance's Act's outset, and there is no evidence that it has undercut the Government's ability to enforce the ban on peyote use by non-Indians.
The Government argues unpersuasively that it has a compelling interest in complying with the 1971 U.N. Convention [on Psychotropic Substances].... At this stage, it suffices that the Government did not submit any evidence addressing the international consequences of granting the UDV an exemption, but simply relied on ... the general (and undoubted) importance of honoring international obligations and maintaining the United States' leadership in the international war on drugs. Under RFRA, invocation of such general interests, standing alone, is not enough.

Bill Introduced To Strip Federal Courts of Jurisdiction Over Legislative Prayer

Today's Indianapolis Star reports on the latest reaction to an Indiana federal district court decision last year banning sectarian prayer in the state's House of Representatives. That decision is on appeal to the U.S. 7th Circuit court of Appeals. Indiana's U.S. congressman Mike Sodrel however would like to short-circuit the appeal. Last week he introduced federal legislation to remove federal court jurisdiction over the content of prayer in state legislatures. Sodrel will hold a news conference this morning to discuss the bill.

Europeans Urge Changes In Afghanistan's Supreme Court; Islamists Demur

Today's Christian Science Monitor reports that in Afghanistan, a crisis may be brewing over whether the country's Supreme Court will move away from its strict Islamic focus and will be modernized. Presently all 9 justices are mullahs. Earlier this year at the London Conference on Afghanistan, the country agreed to reform its justice system. (Text of 2006 Afghanistan Compact.) On February 11, European diplomats delivered a demarche to Afghan President Hamid Karzai, calling for compliance with the agreement to address existing gender imbalance in the judiciary, and particularly in appointments to the Supreme Court.

This however is likely to meet opposition from Islamic scholar Fazel Hadi Shinwari who presently heads Afghanistan's Supreme Court and whose rulings have reflected strict compliance with Sharia. Responding to the European pressure for professionalization of the Court, Shinwari said: "Anything that is according to the Koran is fine with me, but if you go against the Koran, you Europeans will have to tell Karzai to get rid of this old man who is in charge of the Supreme Court. I'm ready to resign, but then there will be lots of problems, just as the desecration of the image of the prophet Muhammad, peace be unto him, caused 60,000 people to go out into the streets. The same thing will happen here."

As to pressure to address gender imbalance in the judiciary, Shinwari who is both Chief Justice and head of Afghanistan's Council of Islamic Scholars says: "We have many women judges here, but a woman cannot be a judge over the general country, and she cannot sit in this chair. If a woman becomes a top judge, then what would happen when she has a menstruation cycle once a month, and she cannot go to the mosque? Also, a woman judge cannot give an execution order, according to Islamic law."

Court Issues Revised Opinion In Florida Drivers' License Case

A Florida state court of appeals has issued a revised opinion in a case it decided last September upholding requirements of the state's Motor Vehicles Department regarding drivers' license photos. The Department refused to permit a Muslim woman to be photographed in a veil, but permitted her unveiled photo to be taken by a woman photographer. The revised opinion in Freeman v. Department of Highway Safety and Motor Vehicles (Feb. 13, 2006), deletes references in the original opinion to deposition testimony of the license applicant regarding her beliefs about veiling, but reaches the same conclusion as the original opinion. On Religionlaw listserv, a post by Eugene Volokh discusses the modification in the court's opinion.

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."