School Must Re-Display Bricks With Religious Messages

A federal district court has ordered an upstate New York public high school to return nine bricks inscribed with evangelical Christian messages to a high school walkway from which they had been removed. In Mexico, a village 30 miles north of Syracuse, as a fund raiser a high school class sold bricks that could be inscribed with personal messages. The school received complaints about some of the bricks they sold--ones with messages like "Jesus Saves" and "Jesus Christ The Only Way!". Concern over separation of church and state led school district officials to remove these particular bricks, even though they did not remove others referring to God or commemorating particular churches. The Associated Press yesterday reported that the court found the walkway to be "a limited public forum" open to public expression. The school could not exclude religious viewpoints while permitting others in such a forum. The court also held that the brick sale was clearly a secular project and that the nine bricks did not violate the Establishment Clause of the Constitution.

UPDATE: Here is the full opinion in Kiesinger v. Mexico Academy and Central School, (ND NY, March 31, 2006). [Thanks to How Appealing via Blog From the Capital.]

7th Circuit Dismisses Church Music Director's ADEA Claim

The U.S. Seventh Circuit Court of Appeals yesterday dismissed an age discrimination suit brought by the 50-year old music director and organist employed by a Roman Catholic Church in Peoria, Illinois and by the Peoria Diocese. In an interesting decision by Judge Richard Posner, the court in Tomic v. Catholic Diocese of Peoria (7th Cir., April 4, 2006) invoked the principle that courts will not exercise jurisdiction over the internal affairs of religious organizations when it would involve courts in deciding ecclesiastical matters. Rejecting the argument that Tomic did not have religious duties, the court said that moving ahead with the case would involve the court in deciding whether Tomic was dismissed because of church needs rooted in church doctrine, or whether that was a pretext for age discrimination. The court also rejected the Second Circuit's recent holding that the Religious Freedom Restoration Act intended to substitute its standard of review for the traditional ministerial exception in ADEA cases. He said that RFRA applies only to cases in which the government is a party.

Civil Rights Commission Urges Moves By Colleges Against Anti-Semitism

At a meeting on Monday, the U.S. Civil Rights Commission voted 4-1 to recommend a number of steps to counter anti-Semitism on American university campuses. The move, reported by yesterday's New York Sun, follows reports that the U.S. Department of Education was questioning whether Title VI of the 1964 Civil Rights Act protected Jews from discrimination. (See prior posting.) The Commission urged federal grant-making institutions to exercise appropriate oversight so that academic departments of Middle East Studies do not use federal funds to support discriminatory conduct. It also encouraged the Department of Education's Office of Civil Rights to inform college students about their rights under federal civil rights laws. It said Congress should direct the Office of Post Secondary Education to collect more information on anti-Semitic and other hate crimes, and should amend Title VI to clearly ban discrimination against Jewish individuals as part of the law's prohibition against national origin discrimination.

Dissenting from the Commission's recommendations was its chairman, Gerald Reynolds, who insisted that it was inappropriate to collapse the concepts of religion and national origin in order to protect Jews under Title VI.

Excluded Religious Groups Sue Wisconsin's Employee Charitable Campaign

In Wisconsin, charities approved by the state's Department of Administration are eligible to receive a share of the contributions made by state employees to the Wisconsin State Employees Charitable Campaign. In order to be approved, a charity must sign a non-discrimination statement that applies to membership in the organization, employment, volunteer opportunities and receipt of services. The required statement includes non-discrimination on the basis of creed or sexual orientation. Yesterday, the Alliance Defense Fund and Christian Legal Society filed suit (ADF press release, AP story) on behalf of the Association of Faith-Based Organizations challenging the constitutionality of the policy insofar as it requires religious organizations to abandon their policy of requiring members, board members, volunteers and employees to share the organization's religious views. The lawsuit alleges (full text of complaint) that these requirements deprive plaintiff groups of their First Amendment rights of speech, association and free exercise of religion, and denies the groups equal protection of the laws. The suit seeks declaratory and injunctive relief and an award of attorneys' fees.

UPDATE: On Thursday, Gov. Jim Doyle called for a review of standards used to determine which charities can participate in WSECC. (Associated Press).

Harvard Prof Says Intelligent Design Proponents Must Change Focus

Harvard Law Professor William Stuntz, who is an evangelical Christian, has written an interesting article in the Spring 2006 Harvard Law Bulletin explaining why proponents of intelligent design are destined to lose their debate with evolutionary scientists unless ID proponents radically change their mode of argument. He says:

[T]he proponents [of intelligent design] are too invested in the bottom line. You don't win scientific debates by arguing like lawyers; you win them by arguing like scientists. But my friends in the evangelical Christian community tend to argue like lawyers: They start with the bottom line and look for reasons to support it, just as a lawyer starts with the conclusion that most benefits her client and looks for arguments to support that conclusion. The only way to win a scientific debate is to play by the scientists' rules--start with premises and reason forward to conclusions. And the only way to do that credibly is to make clear at the outset that you're not committed to any conclusion, that you haven't already embraced a bottom line. Religious believers have already failed that test, which is why this debate will end up looking to most people like the debate over evolution in the 1920s. Nonbelievers think that believers are strategic, that we will embrace any argument that works to our benefit. To a large degree, they're right. Unless and until that changes, religious believers won't have any credibility with the secular academic world. We don't deserve to have credibility if we're not honestly engaged in truth-seeking.

Report On "War On Christians" Conference

People for the American Way has posted an extensive summary of the proceedings at last week's conference in Washington, D.C. sponsored by Vision America, titled "The War on Christians and Values Voters in 2006". PFAW reports that the conference speakers focused on claims that people of faith, especially Christians, are under constant attack by radical secularists, homosexual activists, federal judges, non-believers and pagans. Speakers argued that the Right was losing the culture war because it has been too passive and unwilling to fight to defend its beliefs. The main panels at the conference were: (1) Christian Persecution: Reports From The Frontlines; (2) Jews Confront The War On Christians; (3) The Gay Agenda: America Won’t Be Happy; and (4) The ACLU And Radical Secularism: Driving God From Our Public Life.

EEOC Sues On Behalf Of Rastafarian Employees

For the second time in a week, the U.S. Equal Employment Opportunity Commission has filed suit against a business charging it with discrimination against a Rastafarian employee. Last week it filed suit against United Parcel Service for refusing to hire a Rastafarian as a driver helper because of his beard. The most recent suit was against Atlanta-based RaceTrac Petroleum Inc. for firing a Rastafarian from her position as staffing coordinator because she wore dreadlocks and a head wrap for religious reasons. The Atlanta Business Chronicle reports on both the UPS and RaceTrac cases.

Two More Prisoner Cases

In Hudson v. Merline, 2006 U.S. Dist. LEXIS 14463 (DNJ March 8, 2006), a New Jersey federal court permitted a Muslim pre-trial detainee to proceed with his claim that New Jersey prison authorities infringed his free exercise rights by refusing to permit him to attend Friday Jumah prayer services.

In Adamson v. McDonough, 2006 U.S. Dist. LEXIS 13715 (ND Fla., March 29, 2006), a Florida federal district judge accepted the Magistrate Judge's recommendation and held that prohibiting a Florida prisoner from sending out mail to solicit pen pals does not infringe his right to free exercise of religion.

FLDS Not Welcome In Saskatchewan

A Canadian Press report yesterday says that Saskatchewan's attorney general and Minister of Justice, Frank Quennell, does not welcome the news that the Fundamentalist Church of Jesus Christ of Latter Day Saints may be planning to create a colony in Saskatchewan. The fundamentalist Mormon splinter group practices polygamy and has been embroiled in legal battles in the United States. (See prior posting.) Quennell said, "Polygamy is against the law in Canada and perhaps more importantly, there are laws against the sexual exploitation of children and minors. Those laws will be enforced in Saskatchewan and we certainly don't have the welcome mat out for anybody who would break them."

Religious Groups Active In Immigration Law Reform Debate

Today's Knight-Ridder News Service profiles the growing role of religious groups, particularly the Catholic Church, in the debate over reform of U.S. immigration laws. These groups have added a moral voice to the debate, joining with business to press for more protection for undocumented aliens. On the other hand, the Christian Coalition has taken a strong stand against liberalization of immigration laws, saying that it would reward those who break the law.

Catholics Lead Drive In Pakistan To Repeal Blasphemy Law

In Pakistan, Archbishop Lawrence Saldanha, president of Pakistan's Catholic Bishops Conference, is leading a movement to repeal a portion of Pakistan's blasphemy law, according to America: The Catholic Weekly Magazine. The drive is aimed at two parts of Penal Code Ordinance 295. Section 295-B mandates life imprisonment for desecration of the Koran. Section 295-C calls for thee death penalty for anyone who defames or insults the Prophet Muhammad. The Bishop's National Commission for Justice and Peace says that in more than 100 recent blasphemy cases in which defendants were acquitted, the accusers were shown by the court to have been motivated by personal grudges or hope of financial gain. Even though Muslims make up 97 per cent of Pakistan's population, they widely see themselves as threatened by India's Hinduism, and Ordinance 295 is a popular reaction to this threat.

Judge Pryor Discusses Religion and Public Life

Judge William H. Pryor, Jr., who sits on the U.S. 11th Circuit Court of Appeals spoke at the University of Alabama Friday as part of a Symposium on the Role of Religion in Public Life. The Crimson White today reports that Pryor said his faith gives him a moral duty to obey the law because he swore an oath to protect the Constitution. He also said he considers his job "a form of prayer" that "honors the Creator's gifts". In the Q&A, Pryor said that if a judge's religious convictions come into conflict with the law, the judge should recuse himself from the case.

Islamic Reformers In U.S. Featured

Today's Boston Globe carries an interesting article on increasing pressure by Muslim scholars, intellectuals and professionals in the United States to liberalize Islam and align its teachings with American democratic values. One of those reformers is scholar Ahmed Mansour, who fled to the United States after a fatwa was issued against him in his native Egypt. Mansour was recently brought in as a defendant in a suit that has been filed by the Islamic Society of Boston. ISB claims that defendants' negative statements interfered with fundraising for the mosque. Mansour has attacked ISB over radical Islamist positions supported by the mosque. The suits and counter-suits surrounding the Islamic Society of Boston's efforts to build a mosque in Roxbury are discussed in an article that appeared last month in the Daily Standard.

House-Passed Education Bill Contains Religious Protections

Last Thursday the House of Representatives passed, and sent on to the Senate, the College Access and Opportunity Act (H.R. 609). (Reuters report.) The House Committee has issued a Summary of the bill's complex provisions.

Sec. 112 of the bill amends the current 20 USC Sec. 1011a to include a provision stating that it is the sense of Congress that students at institutions of higher education "should not be intimidated, harassed, discouraged from speaking out, discriminated against, or subject to official sanction because of their personal political, ideological, or religious beliefs...." It also adds a provision attempting to insure that sanctions imposed on students for disrupting a college sponsored class, performance or speech are imposed "objectively, fairly, and without regard to the student’s personal political, ideological, or religious beliefs".

Also Section 495 of the bill amends the current 20 USC Sec. 1099b to provide that the criteria for federal recognition of higher education accrediting agencies must include as one factor whether the accrediting agency consistently applies and enforces standards "that consider the stated missions of institutions of higher education, including such missions as inculcation of religious values".

New Charges of Chinese Persecution Of Falun Gong

Austrian law professor Manfred Nowak, United Nations Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is looking into new charges of persecution of the Falun Gong by the government of China. Reuters reported last week on allegations that up to 6,000 people were being held at a state-run concentration camp in the northern city of Shenyang. It is claimed that some of the prisoners have been killed and their organs or tissues sold.

New Articles and Books

A large number of articles and books of interest have recently been published:

The Winter 2006 issue of the Journal of Church and State containing numerous articles, book reviews and features has just appeared.

From SmartCILP:

• Steven K. Green, A Legacy of Discrimination"? The Rhetoric and Reality of the Faith-Based Initiative: Oregon as a Case Study, 84 Oregon Law Review 725-777 (2005).
• Philip Hamburger, Religious Freedom in Philadelphia, 54 Emory Law Journal 1603-1631 (2005).
• Sue Ann Mota, Competing Judicial Philosophies and Differing Outcomes: The U.S. Supreme Court Allows and Disallows the Posting of the Ten Commandments on Public Property in Van Order v. Perry and McCreary County v. ACLU, 42 Willamette Law Review 99-122 (2006).
• Brian D. Wassom, Unforced Rhythms of Grace: Freeing Houses of Worship from the Specter of Copyright Infringement Liability, 16 Fordham Intellectual Property, Media & Entertainment Law Journal 61-240 (2005).

Books:

From Random House, Jon Meacham, American Gospel : God, the Founding Fathers, and the Making of a Nation (April 2006), reviewed in this week's Newsweek. [Thanks to Joel Sogol via Religionlaw for the lead.]

From HarperCollins, Michael Burleigh, Earthly Powers: The Clash of Religion and Politics in Europe From the French Revolution to the Great War (Feb. 2006), reviewed in today's New York Times .

Feb. and March Prisoner Free Exercise Cases

In Sample v. Lappin, (DDC, March 31, 2006) (Opinion, Order), an Orthodox Jewish prisoner challenged restrictions imposed by the Federal Bureau of Prisons on his use of wine for religious purposes. Regulations allow him access to sacramental wine only if permitted by the warden and if administered by an authorized rabbi during the course of a religious ritual. The DC federal district court found that plaintiff had made a prima facie showing that this policy violates the Religious Freedom Restoration Act. However, neither party had made an adequate showing for the court to determine if the BOP policy was the least restrictive means of furthering the government's compelling interest in controlling alcohol consumption in prisons.

In Figel v. Overton, 2006 U.S. Dist. LEXIS 13892 (WD Mich., Feb. 14, 2006), on remand from the Sixth Circuit, a federal Magistrate Judge in Michigan permitted a prisoner to proceed with a claim for damages growing out of the confiscation of religious books not received directly from the publisher or an authorized vendor. He recommended that defendants' claims of qualified immunity be denied.

In Diaz v. Goord, 2006 U.S. Dist. LEXIS 14309, (WD NY, March 20, 2006), a New York federal district court found that while atheism qualifies as a religion for purposes of a prisoner's free exercise claim, plaintiff had failed to allege how the confiscation of his atheist pendant and chain infringed on his right to practice his religion.

In Scrible v. Miller, a West Virginia federal district court judge adopted a federal Magistrate Judge's recommendations that a Rastafarian prisoner be permitted to proceed with his claims under the Free Exercise clause and the Religious Land Use and Institutionalized Persons Act. Plaintiff alleged that he has taken the vow of the Nazarite, and sought an exemption from the state prison's grooming policy, a religious diet, and assistance in finding a Rastafarian leader and/or literature. The Magistrate Judge's opinion is at 2006 U.S. Dist. LEXIS 14411, (ND WVa, Feb. 2, 2006), and the district judge's opinion is at 2006 U.S. Dist. LEXIS 14394 (ND WVa., March 15, 2006).

Justice Scalia Creates Tempest At Boston Red Mass

Yesterday’s edition of The Pilot, published by the Catholic Archdiocese of Boston, carried a flattering story about Justice Antonin Scalia’s attendance at the Catholic Lawyer’s Guild annual Red Mass, held on March 26 at Boston’s Holy Name Cathedral of the Holy Cross. Traditionally the Red Mass opens the Court’s term, but it was delayed this year because of scheduling issues. While The Pilot’s story reported on Scalia’s talk after the Mass at a luncheon sponsored by the Guild, it was silent about a controversy that was created by Scalia between Church and the lunch.

As Scalia was leaving the Mass, a Boston Herald reporter, Laurel J. Sweet, asked him whether he receives a lot of criticism for publicly proclaiming his conservative Catholic beliefs. "You know what I say to those people?" Scalia replied, flicking his hand under his chin. "That’s Sicilian," he said. He continued: "It’s none of their business. This is my spiritual life. I shall lead it the way I like." The Boston Herald article described the under-the-chin gesture as "obscene". This led Justice Scalia to write a letter to the Herald (full text) complaining that the gesture was not obscene, but merely meant "I couldn’t care less".

It turns out that free-lance photographer Peter A. Smith actually caught Scalia’s gesture on film. Smith is a part-time faculty member in Journalism at Boston University and was covering the event for the Catholic Pilot. As the controversy raged, he released the photo and gave his account of what happened: "The judge paused for a second, then looked directly into my lens and said, 'To my critics, I say, Vaffanculo, punctuating the comment by flicking his right hand out from under his chin.'" The Italian phrase means "f--- you." The Boston Herald reporter who had asked Scalia the original question agreed with Smith’s story, but said he did not hear Scalia say "Vaffanculo".

Proving the old adage that "no good deed goes unpunished", yesterday's Boston Herald reported on photojournalist Peter Smith's fate. His decision to release of the photo of Justice Scalia led The Pilot to fire the professor-photographer who had freelanced for the paper for ten years.

Malaysian Man Fined For Missing Friday Prayers

A rather surprising story, even for Malaysia, appears in today’s edition of the New Straits Times. The Malaysian state of Kelantan has enacted a law known as the Kelantan Islamic Council and Malay Customs Enactment 1986 (Amendment 1994). It makes it an offense, punishable by a fine or up to 6 months in jail, for a Muslim to be absent from prayers in his sub-district for three consecutive Fridays. Mohamad Taib, in a rare prosecution, was charged under the Act. He claimed his absence was due to his being ill with asthma, but Syariah Court judge Mohd Hafiz Daud rejected the excuse, suggesting that straying from God is what caused Taib’s asthma in the first place. Taib paid a fine of RM300 (around $82US).

Afghanistan Convert Case Continues To Have Legal Implications Worldwide

The divide between Western countries and many Muslim nations over the tradition of religious freedom was emphasized in the last few days in the wake of the last minute escape from Afghan courts of Muslim convert to Christianity, Abdul Rahman.

On Thursday, by a vote of 427-0, the U.S. House of Representatives passed H. Res. 736 strongly condemning Afghanistan's attempts to prosecute Rahman for abandoning Islam:

Resolved, That the House of Representatives-- (1) condemns, in the strongest possible terms, the enforcement of laws against apostasy; (2) requests the President to continue to work with the Government of Afghanistan to establish better protections for religious minorities, including converts to minority religions, and to enhance human rights protections in Afghanistan; and (3) calls upon the Government of Afghanistan, and especially President Hamid Karzai, to continue to conform Afghan laws to Afghanistan's international human rights treaty obligations, thereby protecting Afghan citizens who have converted or plan to convert to other religions from prosecution.

The Century Foundation today published an analysis of lessons learned from the Rahman episode about the tensions between Islamic law and Western law still faced by Afghanistan. It reports that President Hamid Karzai has presented the Afghanistan Parliament with a new slate of reformist Supreme Court judges. It is unclear whether Parliament will approve them. In a U.S. News & World Report column posted Thursday, Jay Tolson suggested that it was unfortunate that Afghanistan dismissed the Rahman case. He says: "Kabul has only put off its rendezvous with an inevitable constitutional dilemma.... At the same time, the dismissal robs the larger Muslim world of a golden opportunity for religious moderates to challenge an Islam-wide crisis of authority that allows extreme, literalist interpretations of Islamic law to go unchallenged."

Meanwhile, many other countries continue to impose legal restrictions on proselytizationtion and conversion. The Toronto Star today published an excellent summary of the law in ten Middle Eastern countries on religious conversion. And, according to Bos News Life, on Friday the Algerian Parliament approved a new law aimed at preventing Christian proselytization in the country. It imposes a 2 to 5 year prison sentence and a fine equivalent to $12,000 (US) on anyone who forces, urges or tempts a Muslim to convert to another religion. It also prohibits manufacturing, storing, or circulating publications or audio-visual material aimed at "destabilizing attachment to Islam." Finally the new law permits the practice of religions other than Islam only in buildings that have been licensed by the government.

Assets of Polygamous FLDS Sect Still An Issue

The Associated Press reports that a hearing in a Utah state court yesterday revealed new complexities in the court's attempt to supervise the trust that holds assets belonging to the Fundamentalist Church of Jesus Christ of Latter Day Saints. The FLDS Church has gained notoriety because of the polygamous practices of its members and the activities of its former leader, Warren Jeffs, who may now be founding a new colony in Saskatchewan. An attorney for the court-appointed trustee yesterday told Judge Denise Lindberg that resources from the United Effort Plan trust may have been diverted to new FLDS outposts in Colorado, South Dakota, Texas and Nevada. Judge Lindberg called on law enforcement officers in the sect's communities of Colorado City, Colo., and Hildale, Utah, to end their current obstructionism and cooperate in the investigation of the use of UEP funds.

Developments In Priest Sexual Abuse Claims

Today's National Catholic Reporter carries a story on hearings taking place in state legislatures across the country on proposals to extend the statute of limitations in cases alleging priest sexual abuse of minors. In Maryland, Washington Archdiocese chancellor Jane Belford argued: "By eliminating time limits or vastly extending them, these bills unfairly require a religious organization or other private entity to try to defend a civil lawsuit involving allegations that could be 30 to 40 years old. Memories fade over time, and witnesses and accused individuals may have died, disappeared or become infirm." The bill pending in Colorado that focuses only on suits against religious and private institutions has led the Catholic Church in that state to urge that sexual abuse in public schools and public institutions should be subject to the same rules.

Meanwhile, early last month a Colorado federal district court refused to permit the Archdiocese of Denver remove to federal court claims that had originally been filed against it in state court. In Doe v. Archdiocese of Denver, 413 F. Supp. 2d. 1187 (D. Colo., Feb. 7, 2006) and Nielsen v. Archdiocese of Denver, 413 F. Supp. 2d 1181 (D. Colo, Feb. 7, 2006), the court held that claims that the Church was negligent in hiring, supervising or retaining offending priests do not raise First Amendment issues that justify removal of the cases to federal court.

Navy Policy For Chaplains-- Analysis and Attack

Jews On First yesterday posted an excellent analysis of the U.S. Navy's recently modified instructions for its chaplains (SECNAV Instruction 1730.7C, Feb. 1, 2006). The 20-page document gives extensive guidance to chaplains and their commanders. It says that except in extraordinary circumstances, any religious element in a Navy function that is not a religious service must be non-sectarian. However a chaplain may refuse to participate in any program that is inconsistent with his or her religious beliefs. The instructions call on chaplains to function in a pluralistic environment that respects the free exercise of religion by all military members.

Yesterday, former Alabama Supreme Court Justice Roy Moore joined dissident Navy Chaplain Gordon James Klingenschmitt at a news conference. Klingenschmitt says that the Navy's policy violates his First Amendment rights by prohibiting him from reciting Christian prayer at non-religious events. Today's Birmingham, Alabama News reports that Klingenschmitt disobeyed an order not to wear his Navy uniform at the news conference. Instead, he invited disciplinary action by appearing in uniform, with a stole around his neck, where he specifically invoked Jesus Christ in prayer. Later, he changed into civilian clothing and a clerical collar and explicitly criticized the Navy's policy.

Apparently Klingenschmitt is not the only chaplain who has had a run-in with the Navy. There has just become available on LEXIS a case from last year brought by another chaplain who was forced into early retirement. In Wilkins v. United States, 2005 U.S. Dist. LEXIS 41268 (SD Cal., June 29, 2005), a Navy chaplain claimed that various institutionalized practices of the Navy's Chaplain Corps violated the First Amendment's Establishment and Free Exercise Clauses, as well as the Equal Protection and Due Process Clauses of the Fifth and Fourteenth Amendments. In particular, he allged discrimination against non-liturgical Protestant chaplains. The court rejected all of his claims.

Ohio Autopsy Law Respects Jewish Halacha

The Ohio General Assembly last week passed and sent to the Governor for signature Am. Sub. H.B. 235. The bill, which amends the Coroner's Law, includes provisions to take account of religious concerns about autopsy procedures. Ohio law already has a provision (ORC Sec. 313.131) relating to autopsy when the deceased had religious objections to the procedure. It permits a rapid judicial hearing to determine if the autopsy is a compelling public necessity. The new bill, which more generally deals with disposal of specimens after an autopsy, provides:

If an autopsy is performed ... and pursuant to section 313.131 ... the coroner has reason to believe that the autopsy is contrary to the deceased person's religious beliefs, the coroner shall not remove any specimens ... from the body of the deceased person unless removing those specimens ... is a compelling public necessity. Except [for a DNA specimen retained for diagnostic, evidentiary or confirmatory purposes]] ..., if the coroner removes any specimens from the body of the deceased person, the coroner shall return the specimens, as soon as is practicable, to the person who has the right to the disposition of the body.

These provisions are consistent with Jewish religious law regarding disposal of body tissue and organs. (Background.) Ohio Jewish Communities and Agudath Israel worked with drafters of the law to assure that the final version respected Halacha (Jewish law). (See prior posting.) [Thanks to OJC March 24, 2006 Internal Newsletter for the information.]

Muslim Classes Permitted In Syria's Military

AsiaNews today reports that in Syria, for the first time since 1963 when the Baath Party declared Syria a secular state, imams will be permitted to hold religious classes in the barracks of the Military Academy. The move is seen as an attempt to counter the fundamentalist Islamic teachings of the Muslim Brothers.

New Publications of Interest

From BePress:

• Jamie A. Aycock, Contracting Out of the Culture Wars: How the Law Should Enforce and Communities of Faith Should Encourage More Enduring Marital Commitments
  
• Todd Parker, The Freedom to Manifest Religious Belief: An Analysis of the Necessity Clauses of the ICCPR and the ECHR

From SmartCILP: Don Willenburg has recently published a review of Noah Feldman's book, Divided by God: America's Church-State Problem--And What We Should Do About It, 80 Tulane Law Review 713-725 (2005).

Eugene Volokh, Parent-Child Speech and Child Custody Speech Restrictions, 81 New York Univ. Law Review 101- 202 (2006). The article is discussed by Austin Cline in a posting titled Religious Discrimination in Child Custody Settlements.

No Damages Awarded In "Atheism Is A Religion" Case

Last August, the 7th Circuit Court of Appeals found that atheism qualified as a religion for a prisoner who wished to form a study group while incarcerated. The Wisconsin Department of Corrections is currently revising its policies to reflect this holding. Now, on remand of the case, a Wisconsin federal district court has granted prison officials summary judgment and dismissed plaintiff's claim for damages. In Kaufman v. Witch, (WD Wis., March 24, 2006), the court accepted prison officials' defense of qualified immunity because, in light of pre-existing Establishment Clause precedents, the unlawfulness of their original decision refusing to treat atheism as a "religion" was not apparent to them.

As Rahman Gets Asylum In Italy, New Questions Raised In U.S.

Abdul Rahman, the convert from Islam to Christianity who faced a possible death sentence in Afghanistan, was granted political asylum in Italy on Wednesday. The Chicago Tribune reports that even though Afghanistan's Parliament sent a letter to the Interior Ministry demanding that Rahman not be allowed to leave the country, he was secretly flown to Italy Wednesday night. Today's Middle East Times says that Afghanistan's Parliament will conduct an inquiry into the judiciary's decision to free Rahman. Meanwhile the Taliban said that the developments show President Hamid Karzai's government to be a "puppet" to foreign powers, and called for jihad against Karzai's administration.

In the wake of these developments, this week's issue of Forward carries an excellent article analyzing the impact that the Rahman affair has had on evangelical Christians in the United States. The paper says that the controversy left evangelicals questioning the Bush administration's assumption that Muslim countries can become democratic while adhering to Islamic law and Muslim customs.

Largest Chaplains' Group Says No New Executive Order Is Needed

According to today's Washington Post, the National Conference on Ministry to the Armed Forces, a long-standing multi-faith organization representing over 70 per cent of the chaplains in the military, has written the Senate Armed Services Committee opposing a call by conservative members of Congress for the President to issue an order guaranteeing chaplains the right to pray in the name of Jesus. Rev. Herman Keizer Jr., chairman of NCMAF, said: "This has been portrayed as though chaplains are not allowed to pray in Jesus's name, without any distinction between what they do all the time in worship services and what they do occasionally, in ceremonial settings where attendance is mandatory." Calls for an executive order to protect the right to pray in Jesus's name have originated mainly from a two-year old rival association, the International Conference of Evangelical Chaplain Endorsers that represents about 800 chaplains, exclusively from evangelical Christian churches.

Indian Supreme Court Rejects Religious Discrimination Challenge To Election Law

The Times of India reports that on Tuesday, the Supreme Court of India decided Ewanlangki-e-Rymbai v. Jaintia Hills District Council. The decision upheld against constitutional attack a statutory provision that precludes Christians from contesting the results of any election to the post of Dolloi (headman) of the Jaintia Scheduled Tribe. Ewanlangki-e-Rymbai, a Christian, supported by the Elaka Jowai Secular Movement, claimed that the provision discriminated against him on the basis of religion. However, Justice Singh said: "The ground for exclusion of Christians is not solely on the ground of religion, but on account of the admitted fact that a Christian cannot perform the religious functions attached to the office of Dolloi."

Arizona Bill To Require Recognition of Student Religious Organizations Nears Passage

In Arizona, the state Senate has passed and sent on to the House the "Associational Freedom in Higher Learning Act" (SB 1153). The ASU Web Devil reports that on Tuesday, the House Committee on Universities, Community Colleges, and Technology voted 5-2 to approve the bill that would prohibit universities from refusing to recognize or grant benefits to a student organization because the organization limits membership based on the religious, political or philosophical views of the organization. However recognition could be denied to groups that engage in "invidious" discrimination on the basis of race, color, national origin or sex. The bill was proposed after Arizona State University last year denied recognition to the Christian Legal Society because it limited membership on the basis of religion and sexual orientation. The lawsuit was settled after the University permitted the group to keep its requirement that members be Christians. (See prior posting.) ASU opposes the pending bill, arguing that student organizations at state universities should comply with the Arizona Board of Regents Code of Conduct that prohibits a wide variety of discriminatory activities.

Alternative Synod Leaders Prosecuted In Bulgaria

Forum18 yesterday reported on the dispute in Bulgaria between two wings of the Bulgarian Orthodox Church. The "Alternative Synod" was created by members who claimed that Patriarch Maksim was improperly elected to head the Church in 1971. Now two Alternative Synod leaders are being prosecuted for claiming to be Orthodox bishops, despite their lawyer's claim that the charges violate required separation of church and state in the country. Article 274, part 1, of the Criminal Code, punishes by large administrative fines or up to one year in prison anyone who is found to be "unwarrantedly committing an act within the scope of the office of an official which he does not occupy." Forum 18 says the cases were brought at the instigation of the Bulgaria's National Security Service. The Patriarchate remains the wing recognized by the rest of the Orthodox world and favored by government officials. Officials say that Bulgaria's 2002 religion law was specifically aimed at "reuniting" the divided Orthodox Church.

U.S. Agencies Debate Whether Title VI Covers Anti-Semitism

Today's New York Sun reports that the U.S. Department of Education is backing away from an earlier position that permitted it to investigate complaints of anti-Semitic harassment at universities receiving federal funds. Title VI of the 1964 Civil Rights Act prohibits discrimination on the basis of race, color or national origin by recipients of federal funding. However, Title VI does not mention religious discrimination.

In 2004, the Department's Office of Civil Rights said that under Title VI it could investigate discrimination against students of Jewish heritage even if they are Caucasian and American born. This is consistent with the U.S. Supreme Court's holding in the 1987 case of Shaare Tefila Congregation v. Cobb that held Jews could make a racial discrimination claim under a 19th century federal law because at the time it was passed Jews were considered a distinct race. Recently, however, Stephanie Monroe, head of the Department of Education's Office of Civil Rights, has apparently taken the position that while harassment driven by a student's perceived Jewish ethnic origin would be subject to an OCR investigation under Title VI of the 1964 Act, harassment because of a student's Jewish religious beliefs, such as the wearing of a kippa, would not be covered by Title VI.

Meanwhile, the U.S. Civil Rights Commission is also bogged down in dispute over how far it should go in addressing anti-Semitic propaganda and harassment on campuses, including anti-Semitic activities disguised as anti-Israel advocacy. The issue will be on the agenda of the Commission's April 3 meeting.

City Council Prayer Dispute In Canada

The debate over legislative prayer has now moved to Canada. Today's Globe and Mail reports that the city of Laval is trying to retain its practice of opening council meetings with a non-denominational prayer. City resident Danielle Payette, an atheist, filed a religious discrimination complaint with the Quebec Human Rights Commission complaining about the practice. Payette is backed by Mouvement Laïque Quebecois which promotes the separation of church and state. The case will be heard by the Human Rights Commission tomorrow.

DC Circuit Holds Damages Not Available From U.S. Under RFRA

Yesterday in Webman v. Federal Bureau of Prisons, (DC Cir., March 28, 2006), the U.S. Court of Appeals for the DC Circuit held that damages are not an available remedy for individuals suing under the Religious Freedom Restoration Act. It held that RFRA's authorization of "appropriate relief against a government" did not waive the federal government's sovereign immunity against damage claims. This is the first circuit court opinion directly dealing with the issue.

NY Civil Liberties Union Sues Coast Guard Over Merchant Marine Religious Bias

Just two days after the New York Times reported that the U.S. Coast Guard is considering changing its policy prohibiting wearing of religious head coverings indoors while in uniform, the New York Civil Liberties Union filed a related religious discrimination suit against the Coast Guard on behalf of Muslim ship worker Khalid Hakim. The suit involves Coast Guard requirements for licensing merchant marine crew members who serve on commercial ships. Newsday yesterday reported that the suit accuses the Coast Guard of requiring anyone seeking a merchant marine license to submit photographs showing himself or herself without a head covering. Before September 2001, Hakim regularly received licenses after submitting photographs in which he wore his Kufi (religious skull cap). After 9-11, the Coast Guard said Hakim would have to remove the kufi. However, without explanation, the Coast guard issued Hakim a new license shortly before the NYCLU suit was filed. The full text of the complaint in Hakim v. Chertoff, charging that Hakim's rights under the First Amendment and the Religious Freedom Restoration Act were violated, is available online.

Religious Party Gets 3rd Highest Number of Seats In Israel's Election

While the big news out of yesterday's Israeli election is that the Kadimah Party won the most seats in the Knesset (28), less noted was the fact that the party receiving the third highest number of seats (13) was the Sephardic religious party, Shas. (Results from Arutz Sheva.) Earlier this month Ynet News reported on Shas' platform which includes the following:

• Integrating Jewish tradition into the education system. The doctrine guiding the party's platform is that Israel is the Jewish people's state and Jewish identity must be preserved when it comes to decision making, while curbing moves that would see "a country of all its citizens" emerging. The party does not call for a state based on religious law, but rather, "a state with a Jewish soul" where Jewish character is preserved within state laws.
• Every diplomatic question on the agenda has answers in Jewish law. The party's spiritual leader, Rabbi Ovadia Yosef, determines the party's official position. Yosef and other leading rabbis believe territorial compromise is allowed, but only when life is at stake and something is received in return.

In addition to the 13 seats won by Shas, two other religious party slates did reasonably well. The National Union/National Religious Party got 9 seats, and United Torah Judaism won 6 places in the 120-seat Knesset.

Lutheran School's 1st Amendment Defense Against Discrimination Claim Rejected

In Riverside, California Monday, a judge refused to dismiss a case brought against a Lutheran high school on behalf of two students who were expelled because the school suspected that they were maintaining a lesbian relationship. The San Diego Union-Tribune yesterday reported that by allowing the case to proceed to trial, Superior Court Judge Gloria Connor Trask implicitly rejected defense arguments that their First Amendment free exercise rights precluded application of the Unruh Civil Rights Act to the private religious school. (See prior related posting.) The case is Mother Doe v. California Lutheran High School Association.

San Francisco Reaction To Catholic Adoption Agency Stand

The refusal earlier this month of Boston's Catholic Charities to continue to offer adoption services if required to place children with gay and lesbian parents triggered events leading to a heated exchange last week in San Francisco on the same issue. The San Francisco Chronicle and KTVU TV reported last week on the controversy. In the Vatican, Cardinal-elect William Levada, the former archbishop for San Francisco, was asked by the press to comment on the Boston situation. He said, "it has been, and remains, my position that Catholic agencies should not place children for adoption in homosexual households."

In response to this, first the San Francisco Chronicle wrote a measured editorial criticizing Levada's statement. Then the San Francisco Board of Supervisors unanimously passed a strongly worded non-binding resolution. It said in part: "It is an insult to all San Franciscans when a foreign country, like the Vatican, meddles with and attempts to negatively influence this great city's existing and established customs and traditions, such as the right of same-sex couples to adopt and care for children in need." Also, San Francisco Mayor Gavin Newsom, a divorced Catholic, canceled his planned trip to Rome to attend the elevation of Levada at a ceremony held last Friday. Finally, the National Center for Lesbian Rights said last week that it might sue the Roman Catholic Archdiocese of San Francisco if it bans its affiliated social service agency from allowing adoptions by same-sex couples.

Dutch Agency Finds Discrimination Against Muslim Teaching Applicant

In Netherlands, the Dutch Equal Treatment Commission has held that the Regional Education Center in the city of Utrecht illegally "discriminated, indirectly, on the basis of religion," when it rejected Fatima Amghar who had applied for its teacher training program. Today's Khaleej Times reports on the case. Amghar's Muslim religious beliefs preclude her from shaking hands (or otherwise coming into physical contact) with men over 12 years of age. The Education Center argued that shaking hands was a routine part of a teaching assistant's job. However, the Equal Treatment Commission said that "there are other conceivable manners of greeting that can be considered proper and respectful".

Connecticut Captive Audience Bill Killed In Committee

The Stamford, Conn. Advocate reports that on Monday a legislative committee defeated the "captive audience bill". The legislation would have prohibited companies from requiring employees to attend meetings at which management expresses opinions on political or religious matters. Opponents said the legislation was hostile to business, and Connecticut is attempting to attract more employers. An AFL-CIO spokesman said that his group would continue to press for the legislation.

Church Challenges To Building Limits Survive Motion To Dismiss

In The Cathedral Church of the Intercessor v. The Incorporated Village of Malverne, 2006 U.S. Dist. LEXIS 12842 (ED NY, March 6, 2006), a New York federal district court denied the Village of Malverne's motion to dismiss a suit brought against it challenging its refusal to permit the expansion of a church building of a Charismatic Episcopal congregation. The court found that plaintiff's complaint adequately alleged an equal protection claim based on selective enforcement of governmental regulations. It also permitted plaintiffs to move forward on both substantive and procedural due process claims, on claims of retaliation and on RLUIPA claims. Finally the court held that the city officials being sued had not alleged sufficient facts to show that they had qualified immunity.

Senate Committee Approves Immigration Bill with Church Protections

With Republicans divided on the issue, the Senate Judiciary Committee yesterday approved a wide-ranging immigration reform bill. The New York Times reports that the bill was praised by immigrant advocacy organizations and church groups that had been demonstrating in recent days in favor of immigrant rights. The bill includes an amendment authored by Sen. Dick Durbin (D-IL) which protects charitable organizations and churches involved in offering humanitarian assistance. They will be protected from prosecution even if in providing assistance they aid undocumented aliens. A release from Sen. Durbin's office reports that this amendment was adopted by a bipartisan vote of 10-7. (See prior related posting.) If this bill is passed by the full Senate, it will still need to be reconciled with H.R. 4437, a more restrictive bill already passed by the House. [Thanks to Blog From the Capital for the lead.]

Brief Filed For Congress Members Supporting National Motto

An amicus brief (full text) was filed yesterday by the American Center for Law and Justice in federal district court in Sacramento, California on behalf of 47 members of Congress in support of the government's request to dismiss a pending lawsuit filed by Michael Newdow challenging the constitutionality of the national motto, "In God We Trust." (See prior posting.) The release announcing the filing quotes this from the brief: "The Establishment Clause was never intended as a guarantee that a person will not be exposed to religion or religious symbols on public property, and the Supreme Court has rejected previous attempts to eradicate all symbols of this country's religious heritage from the public's view. Although enterprising plaintiffs can find support for just about any proposition in the Court's multifarious Establishment Clause pronouncements, a claim that the national motto violates the First Amendment borders on frivolous."

Supreme Court Hears Arguments On Depriving Prisoners of Protected Material

Yesterday, the U.S. Supreme Court heard arguments in the case of Beard v. Banks (04-1739), raising the question of whether state prisons may deprive inmates of access to newspapers and magazines as part of their punishment for violating prison rules. According to the AP's report on the case, Pennsylvania prison officials permit inmates in the high-security disciplinary unit to have access to religious materials, two paperback books of general interest, their legal documents and letters from family. But newspapers, magazines and personal photographs are banned. The Becket Fund For Religious Liberty had filed an amicus brief (full text) in the case arguing that if the Court permits fundamental rights to be taken away as punishment in order to modify behavior of prisoners, in the future officials might begin to deprive inmates of religious texts as well as secular ones.

In the decision below, the Third Circuit had held the restrictions unjustified. Circuit Judge (now Justice) Samuel Alito dissented, finding the restrictions constitutional.

New Scholarly Publications Of Interest

From SSRN:

• Neal D. Schuett, The Struggle to Define Jihad: A Religious Belief or Secular Philosophy?

From SmartCILP:

• Steven P. Aggergaard, Religion, Speech, and the Minnesota Constitution: State-Based Protections Amid First Amendment Instabilities, 32 Wm. Mitchell Law Review 719-767 (2006).
• Daniel A. Crane, A "Judeo-Christian" Argument For Privatizing Marriage, 27 Cardozo Law Review 1221-1259 (2006).
  

Florida Voucher Programs Face Uncertain Future

Yesterday's Lakeland, Florida Ledger reports on the latest skirmish on school vouchers in the Florida. In January the Florida Supreme Court struck down the state's Opportunity Scholarship Program on state constitutional grounds, holding that the program interfered with the state's providing a "uniform" school system. The Court did not reach the issue of whether the program violates the state constitution's prohibition on aid to religious organizations. (See prior posting.)

Now pro-voucher politicians, including Governor Jeb Bush, want an amendment to the state constitution to protect vouchers, claiming that otherwise the ACLU will bring suit to invalidate those voucher programs still in existence. However, the ACLU says it has no intention of challenging either the McKay Scholarship Plan for students with special needs or the Bright Futures program that provides funds for college students. The Florida House of Representatives has a proposed constitutional amendment under consideration, but nothing has happened in the Senate.

The House measure, HJR 1573, proposes a constitutional amendment that provides, in part: "the Legislature is not limited from enacting and funding for the people education programs, public or private, without regard to the religious nature of any provider or participant..." The amendment would also provide that "every child deserves an equal opportunity to receive a quality education regardless of his or her family's income, religion or race. Funding for quality education through classroom instruction is paramount, and the legislature shall ensure that funding provided for public schools shall primarily be used for classroom instruction rather than administrative expenditures."

John Kirtley, a Tampa millionaire who has supported vouchers, says that the ACLU's statement that it does not intend to challenge the McKay or Bright futures programs is a ruse. He thinks the group will wait until it is too late to get a constitutional amendment on the November ballot, and will then file suit against remaining voucher programs. The ACLU agrees that it is considering challenging a program approved in 2002 that funds private pre-school programs, including programs run by religious groups.

Rahman Case Sent Back to Prosecutors; Protests In Some Cities

Yesterday, Afghanistan's Supreme Court, under intense pressure from Western countries, dismissed the case against Abdul Rahman and sent it back to prosecutors to look into problems with the evidence against him, according to reports in yesterday's Guardian and today's Financial Times. Judge Ansarullah Maulavezada, who had been set to try Abdul Rahman for converting from Islam to Christianity, said the case had been dropped because of questions over Rahman's mental state and whether he held dual citizenship in Germany. Meanwhile, Rahman asked for a Bible, insisting he was sane and was willing to die for his faith.

Rahman is being moved to to Pul-i-Charki, a high security facility housing hundreds of Taliban convicts, after fellow prisoners threatened to kill him at Kabul's main jail. Deputy Attorney General Mohammed Eshaq Aloko said Rahman would be sent to the Aliabad hospital in Kabul for psychiatric evaluation and might be examined by U.S. or NATO doctors. He raised the possibility that Rahman might be sent abroad for treatment, opening the possibility of his being granted political asylum abroad.

Meanwhile, India's NDTV reports that thee has been a "massive uproar" across Pakistan in protest against the court's decision to dismiss the Rahman case. Thousands protested in the northern city of Mazar-e-Sharif.

In a related development, in India, the Supreme Court has before it a petition to dissolve all Islamic and Sharia courts in the country. Outlook India today reports that Advocate Vishwa Lochan Madan filed the complaint, alleging that the courts threaten the Indian judicial system.

UPDATE: A March 28 report from the Chicago Tribune says that Rahman has been released into the custody of the Afghan Independent Human Rights Commission and the United Nations mission in Afghanistan. Also, it appears that Monday's demonstrations in Mazar-e-Sharif involved hundreds, not thousands as reported above.

Coast Guard Policy On Religious Head Coverings May Change

This week, the Coast Guard's Uniform Board will meet in Washington. On its agenda, according to today's New York Times, is the issue of whether it will relax its restrictions on wearing of religious head coverings with Coast Guard Uniforms. The Times article recounts the problems faced by Jack Rosenberg, a Hasidic Jew who is a certified pilot and has enlisted in the Coast Guard. While his skullcap is concealed by his uniform hat worn outdoors, wearing his skullcap indoors would violate the Coast Guard General Uniform Policy (Sec. 2.A.1.) requiring that religious items must be concealed or worn only during religious services.

The other military services have a different rule. Back in 1986, in the case of Goldman v. Weinberger, the U.S. Supreme Court upheld Air Force regulations that prohibited an Orthodox Jewish Air Force officer from wearing his yarmulke indoors. However, Congress quickly responded and in 1987 enacted 10 USC 774 that permits members of the armed forces to wear "neat and conservative" items of religious apparel with their uniforms so long as the item does not interfere with performance of military duties. The Department of Defense promulgated regulations consistent with the provision. Department of Defense Directive DODD-1300.17 (Feb. 3, 1988). Since the Coast guard is under the Department of Homeland Security rather than the Department of Defense, DOD directives apparently do not apply to it, even though it would seem that 10 USC 774 also applies to the Coast Guard. 10 USC 101 defines "armed forces" for purposes of Title 10 to include the Coast Guard.

Inmate Claims Veganism Is a Religious Belief

Does belief in a vegan diet amount to a religion? That is the contention in a lawsuit filed against Sacramento, California's jail by Eric Taylor McDavid who is being held there on charges of conspiring to blow up Nimbus Dam and a nearby fish hatchery in Rancho Cordova, and a U.S. Forest Service genetics lab in Placerville. According to today's report from the Sacramento Bee, Mark Reichel, McDavid's attorney, argues that his client's beliefs are protected under the Religious Land Use and Institutionalized Persons Act. He claims his client's avoidance of animal products comes from "strongly, sincerely and firmly held beliefs, which are the same as a religious belief."

The sheriff's legal affairs spokesman, Lt. Scott Jones, says veganism is a lifestyle choice. He says the jail only makes dietary accommodations for medical reasons, and McDavid will get sufficient nutrition even if he only eats the acceptable portions of his meals. Also, inmates who keep kosher, halal and vegetarian diets can supplement their diets with items for sale in the jail's commissary. Jerry Read of the Corrections Standards Authority said his office does not regulate religious diets. He adds, "Case law changes too often. It comes up a lot - I don't know how many lawsuits there are, but enough that we can't keep up with it."

Prince Charles Speaks At Conservative Saudi University

As part of his tour of the Middle East, yesterday Britain's Prince Charles spoke to a small VIP audience at Imam Muhammad Saud Islamic University. The Associated Press reported on the visit. The University, which produces many of Saudi Arabia's Wahhabi clerics and Islamic judges, is seen by many as the center of Saudi conservatism. While Charles did not specifically mention the lack of religious freedom in Saudi Arabia, he did say: "Islam called Jews and Christians the peoples of the book because they, like Muslims, are a part of a religion of sacred texts." Because the sexes are segregated in Saudi Arabia, Camilla, the Duchess of Cornwall, had a different schedule from her husband. She visited the Nahda Philanthropic Society for Women, the first women's charity to be set up in Saudi Arabia.

Some Thoughts On The Rahman Case and the Issue of Religious Conversion

The fate in Afghanistan of Abdul Rahman, the Muslim convert to Christianity who is threatened with capital punishment, continues to draw worldwide attention. Less attention has been given, however, to the origins of the situation. Free Internet Press yesterday carried one of the most complete accounts. The Daily Telegraph , Reuters , Washington Times and the Baptist Standard all add some details. Rahman converted some 15 years ago while living in Pakistan and working for a Christian group that was offering aid to Afghan refugees. His conversion led his wife to obtain a divorce, and her family took custody of the couple's children. Rahman moved around, living in Germany and Belgium. Finally, having been denied asylum in Belgium, Rahman recently returned to Afghanistan and attempted to obtain custody of his two daughters. Since Afghan courts give custody to Muslims over apostates, Rahman's father-in-law, in order to retain custody, informed the court about Rahman's conversion.

Radio Free Afghanistan today posted a detailed analysis of the issue of apostasy under Islamic law. It's author, Joyce M. Davis, points out that not all Islamic scholars advocate the death penalty for those who leave the faith. Meanwhile, pressure on Afghan president Hamid Karzai continued. A letter in Pope Benedict XVI's name was sent to Karzai by Vatican Secretary of State Cardinal Angelo Sodano. BBC News today reports that the letter appealed to Karzai to respect freedom of conscience and religion guaranteed by the Afghan Constitution.

Conversion to other faiths is not a concern only to Islam or to Afghans. In the Indian state of Rajasthan, according to today's New India Press, the cabinet has just approved a bill that would impose a jail term of 2 to 5 years for "forceful" religious conversion. The bill would cover conversions through social boycotts, intimidating a person in the name of God, or any threat leading to personal losses. Encouraging a person to convert by promising financial assistance or personal profit would also violate the law. As Asia News reported earlier this week, India's largest political party, the Hindu nationalist Bharatiya Janata Party, has repeatedly argued that Christian missionaries practice "terrorism" against tribal communities. Last Tuesday, thousands of Christians, joined by Muslims and others, marched to protest growing violence against Christians in Rajisthan.

Courts Rule On When Cases Pose Theological Issues

Two cases that have recently become available involve the question of when adjudication of a dispute will involve the court in deciding issues of religious doctrine.

In Geiser v. International Church of the Foursquare Gospel, (Cal. Ct. App., March 22, 2006), a California appellate court, while upholding a volunteer assistant pastor’s claim against a church for battery, dismissed his claim for intentional infliction of emotional distress. The court held that the First Amendment requirement that a court not become involved in adjudicating issues of religious practice or orthodoxy precluded it from deciding the validity of the claim which was based on accusations that plaintiff made "unauthorized deliverances" and refused to "follow church policy". Deciding the case would involve the court in deciding the truth or falsity of defendant’s religious beliefs, or at least in making judgments about them. That, in turn, would place the court’s imprimatur on one version of church doctrine over another.

A case from Montana, decided some ten months ago, has just become available on LEXIS. In Raihl v. Passmore, 2005 Mont. Dist. LEXIS 1464 (Mont. Dist. Ct., July 21, 2005), a Montana trial court held that issues of negligent hiring, negligent supervision, breach of fiduciary duty and intentional infliction of emotional distress involving the Church of God could be decided without inquiring into religious teachings and beliefs. The court added: "to dismiss these causes of action on that basis would give a clear, green light to any church to conduct themselves in the same fashion given similar circumstances."

Recent Prisoner Free Exercise Cases

In Phipps v. Morgan, 2006 U.S. Dist. LEXIS 12199 (ED Wash., March 6, 2006) a Washington federal district judge adopted the Magistrate’s recommendations and upheld a state prison’s policy of serving ovo-lacto vegetarian meals to Muslim prisoners requesting a Halal diet. The Magistrate Judge’s opinion is at 2006 U.S. Dist. LEXIS 12198 (ED Wash., Jan. 13, 2006).

Following up an earlier decision permitting a Native American prisoner to move forward with his suit claiming he was intentionally denied the right to attend religious pipe and drum ceremonies, a Wisconsin federal district judge issued an opinion outlining in detail to the pro se litigant the exact procedures he must follow at trial and the elements that he must prove to win his case. Meyer v. Teslik, 2006 U.S. Dist. LEXIS 5700 (WD Wis., Feb. 10, 2006). (Earlier decision discussed here.)

In Blount v. Johnson, 2006 U.S. Dist. LEXIS 11961 WD Va., March 2, 2006), a Virginia federal district judge denied prison officials’ motion of summary judgment and sent to the Magistrate Judge for trial a Virginia state prisoner’s claims under the Free Exercise clause and RLUIPA. Inmate Donell Blount who was a member of the House of Yahweh was denied his request to be served the Common Fare Diet because officials determined that his religion did not require it. Subsequently the Virginia Department of Corrections added House of Yahweh to the list of religions requiring a special diet.

In Pepper v. Carroll, 2006 U.S. Dist. LEXIS 11907 (D. Del., March 22, 2006), a Delaware federal district court rather summarily reject a prisoner’s claim that his free exercise rights were infringed when he was not furnished a television set on which to watch church services. He was, at his own request, housed in the Security Housing Unit where televisions are not permitted.

In Stewart v. Barr, 2006 U.S. Dist. LEXIS 11516 (D. Wis., March 17, 2006), a Wisconsin federal district court granted summary judgment to prison authorities, finding they had shown a legitimate penological reason for their requirement that plaintiff, a prisoner claiming to be a Rastafarian, remove his dreadlocks before leaving the prison for medical treatment.

City Considering Law To Limit Pickets Protesting Jewish Divorce Concerns

Washington Jewish Week reports today that in Gaithersburg, Maryland, city council held a public hearing Monday night on an emergency ordinance that would restrict pickets in front of the house of Gaithersburg resident Sam Rosenbloom. The protesters are attempting to convince Rosenbloom to grant a "get" (Jewish bill of divorce) to his wife Sarah. The couple was granted a civil divorce almost six years ago, but Sam Rosenbloom refuses to give his ex-wife a get because she filed a criminal complaint against him. The complaint was dropped before coming to trial, but Sarah has refused to apologize and make restitution. Under Jewish law, a woman may not remarry until her husband gives her a "get".

Protests in front of Rosenbloom's home have been held for almost two years, and recently have been occurring on an almost weekly basis. They are organized by the New York-based Organization for the Resolution of Agunot. Pickets hope that signs and slogans such as "Unchain your wife" will "apply social pressure to free" Sarah Rosenbloom. The proposed ordinance (full text) would prohibit picketing by or in front of a private residence, though it would not ban marching in a residential area without stopping in front of a particular home. It would also not apply if the residence was also the occupant's sole place of business or if a public meeting were being held there. A similar law was upheld against constitutional attack by the U.S. Supreme Court in 1988 in Frisby v. Schultz. Protesters said that if the new law is passed, they will continue their protests in conformity with it. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Easter Bunny Banned From City Hall

Yesterday's Washington Post reports that Easter this year is bringing a mini-rerun of the "Christmas wars". In St. Paul, Minnesota, a secretary had placed a toy rabbit, pastel-colored eggs and a sign with the words "Happy Easter" in the lobby of City Council offices. But St. Paul's human rights director, Tyrone Terrill, asked that the decorations be removed, saying they could be offensive to non-Christians. That has upset City Council member Dave Thune. It has also distressed the Catholic League. Its director, Bill Donohue, issued a rather sardonic release protesting the action.

California Agency Refuses To Fund Historical Mission Repair

Yesterday's Modesto Bee reports that the California Culture and Historical Endowment has refused a funding request by the Friends of Mission San Miguel, citing a Feb. 23 Advisory Letter received from the California Attorney General's Office that the funding would violate California's constitution. The decision disappointed the California Missions Foundation, which has launched a $50 million campaign to help restore and preserve the state's 21 historic missions, 18 of which still are used for religious services. The Foundation had hoped that money from Proposition 40, passed in 2002 to help fund parks and cultural and historic restorations, could be used to repair the earthquake-damaged Mission San Miguel. However the 208-year old Mission is owned by the Catholic Church, and California's Constitution, Art. XVI, Sec. 5, prohibits the grant of anything in aid of any sectarian purpose and prohibits help to "support or sustain" a sectarian institution. Also California Constsitution, Art. I, Sec. 4, prohibits governmental preference of one religion over another. (See earlier related posting.)

University of Wisconsin Settles Suit On Dormitory Bible Studies

The University of Wisconsin yesterday agreed to settle a suit challenging a ban on resident assistants holding Bible study sessions in their dormitories. The settlement was announced by the Alliance Defense Fund that had filed the suit on behalf of RA Lance Steiger. The Consent Order says that the University has implemented a new policy as of March 10, 2006, that allows Resident Assistants to participate in, organize, and lead any meetings or other activities (including Bible Studies), in their rooms, floors or residence halls, or anywhere else on campus, to the same extent as other students. The University agreed to pay plaintiff Steiger nominal damages of $1 as well as attorneys' fees and costs of $2500. (See prior posting.)

Indonesia To Adopt New Decree On Houses of Worship

In Indonesia, the government is ready to promulgate a new ministerial decree on houses of worship, according to today's Jakarta Post. This will replace a 1969 decree that required allowed the local populace to veto a new congregation. That meant that Christians in predominantly Muslim areas often had difficulty getting approval to build churches. Under the new decree, local governments can no longer escape their obligation to provide houses of worship for religious minorities. New places of worship must have congregations of at least 90, and at least 60 people of other faiths living in the area must consent. The congregation must also obtain a building permit from the local administration and the Communication Forum for Religious Harmony (FKUB). However, unlike in the previous decree, if locals object but consent is granted by the administration and the FKUB, local bodies are required to find an alternate space for the church. Christians remain dissatisfied with the new decree, seeking lower threshold numbers for congregants and local resident approval. 42 mostly Christian legislators in the House of Representatives have filed a petition to reject the new decree.

Study On Attitudes Toward Atheists In US

UMN News reports that three University of Minnesota sociology faculty have authored a study on public attitudes toward atheists, to be published in the April issue of the American Sociological Review. They find that Americans rate atheists below Muslims, recent immigrants, gays and lesbians and other minority groups in "sharing their vision of American society." Atheists are also the minority group most Americans are least willing to allow their children to marry. Many of the study’s telephone respondents associated atheism with evils ranging from criminal behavior to rampant materialism and cultural elitism. Reacting to the study, Ellen Johnson, President of American Atheists, said that one reason for the findings is the unconstitutional promotion of religion by government and political leaders. [Thanks to Nick Gillard-Byers and Larry Mundinger for the leads.]

Secy. Hughes Speaks At Conference On Faith and Service

Wednesday, Karen Hughes, U.S. Under Secretary of State for Public Diplomacy and Public Affairs, spoke (full text) in Washington at the first International Conference on Faith and Service. Here are some excerpts:

[S]ome might question why a government official, especially one from a nation that prides itself on the separation of church and state, would be asked to speak at a conference on interfaith dialogue.... Why would a government -- a United States Government official convene a meeting of religious leaders? And the answer is both simple and profound. It's because faith plays such a critical role in the lives of so many people across our world. Governments would be foolish to ignore its power and impact or to leave the floor only to those who seek to use religion as a force to divide or destroy....

Voices from our diverse faith communities, such as those represented here today, are often the most credible voices to say that terror and violence are not a matter of religion at all. When you think about it in its starkest terms, urging young people to strap bombs on their bodies, to kill themselves, and in the process try to kill as many other innocents as possible, is not a legitimate tenet of any faith....

Promoting religious freedom is a central element of the President's agenda for democracy and freedom across our world.... We must not rest in this effort, nor ever forget those who are persecuted for their beliefs and denied the rights of conscience that we sometimes take for granted here in the United States.

Afghan Charge Against Muslim Convert Draws U.S. Criticism

The possibility that a Muslim convert to Christianity in Afghanistan might be sentenced to death by Afghan courts has led to widespread protests in the West and a defensive reaction from Afghan officials. In a speech yesterday in Wheeling, West Virginia, (full text) President George W. Bush said of Afghanistan:

We expect them to honor the universal principle of freedom. I'm troubled when I hear -- deeply troubled when I hear the fact that a person who has converted away from Islam may be held to account. That's not the universal application of the values that I talked about. Look forward to working with the government of that country to make sure that people are protected in their capacity to worship.

Later, in answer to a question, the President said: "It is deeply troubling that a country we helped liberate would hold a person to account because they chose a particular religion over another.... [W]e can solve this problem by working closely with the government that we've got contacts with -- and will. We'll deal with this issue diplomatically and remind people that there is something as universal as being able to choose religion."

Canadian Prime Minister Stephen Harper called President Karzai yesterday to express deep concern, according to the Ottawa Star.

The Washington-based Council on American-Islamic Relations (CAIR) also issued an unusually strong statement on the matter:

Religious decisions should be matters of personal choice, not a cause for state intervention. Faith imposed by force is not true belief, but coercion. Islam has no need to compel belief in its divine truth.... We urge the government of Afghanistan to order the immediate release of Mr. Abdul Rahman.

Afghanistan responded by saying that the matter would be handled by its courts. Reuters yesterday reported that Mahaiuddin Baluch, a religious affairs advisor to President Hamid Karzai, said: "We in Afghanistan have the prosecutor who observes the law and the court that executes it. Whatever the court orders will be executed as the court is independent."

ISN Security Watch today has an excellent analysis of the constitutional issues and political pressures inside Afghanistan. (See prior related postings, 1, 2.)

Supreme Court Arguments Yesterday In Procedural Prisoner Free Exercise Case

Yesterday, the U.S. Supreme Court heard arguments in Woodford v. Ngo, a case involving procedural questions, but growing out of the alleged denial of religious rights to a California prisoner. As described by the Associated Press, Ngo was punished for alleged inappropriate activity with volunteer priests. He was barred from Bible study and from corresponding with a Catholic chapel volunteer after the alleged incidents at San Quentin State Prison in 2000. Ngo filed a grievance with prison officials, but it was denied because he missed the 15-day deadline for grievances allowed by the California Department of Corrections and Rehabilitation. Ngo then sued in federal court claiming a violation of his First Amendment right to free exercise of religion, and alleging that prison officials defamed him by saying he engaged in sexual relations with volunteer Catholic priests.

At issue before the Supreme Court was whether inmates should be able to file federal lawsuits even if they miss state filing deadlines. Ngo's attorney, Meier Feder, argued that Congress never intended to block valid inmate complaints in passing the 1996 Prison Litigation Reform Act. Attorneys for California and for the Bush administration argued that in enacting 42 USC Sec. 1997e, Congress wanted inmates to comply with state prison grievance procedures, including deadlines. Northwestern University has a further summary of the case, along with links to the 9th Circuit's opinion below and to the briefs filed in the Supreme Court.

2nd Circuit Holds Asylum Applicant Need Not Have Religious Knowledge

In Rizal v. Gonzales, (2nd Cir., March 21, 2006), the U.S. Second Circuit Court of Appeals reversed an immigration judge's denial of asylum to an Indonesian citizen who claimed that he would be persecuted in Indonesia because of his Christian beliefs. The Washington Post today reports on the case. Rizal's asylum claim had been rejected because he incorrectly answered a number of questions about Christianity. He said Jesus was crucified in Bethlehem, not Jerusalem, and he did not know which disciples wrote the New Testament. Asked who prepared the Ten Commandments, Rizal answered Jesus instead of Moses. But the Court of Appeals said that people who identify with a religion but lack detailed knowledge about it can still be persecuted for their religious affiliation.

Georgia House Permits Bible As Textbook In High School

The Macon Telegraph reports that yesterday the Georgia House of Representatives passed by a vote of 151-7 a bill (HB 1133) permitting high schools to offer elective courses on the history and literature of the Old Testament and New Testament eras. The classes would focus on the law, morals, values and culture of the eras. Interestingly, the bill provides that the Old Testament and New Testament would be the primary text for each class and the local school board would decide which version of each text to use. Students would also have the option to use a different version.

The bill was originally introduced by Democrats in the Georgia Senate. Republicans, upping the ante, quickly substituted their own version, specifying that the Bible itself would be the course textbook. The measure easily passed the GOP-controlled Senate last month by a 50-1 vote. House lawmakers changed the Senate bill by taking out requirements that the New Testament courses must document the parables of Jesus and the travels of Paul. These changes now must be approved by the Senate. [Thanks to Jean Dudley via Religion law for the information.]

Meanwhile, the Auburn Plainsman today reports that the Alabama Senate Education Committee recently cleared SB472, a Democratic-sponsored bill that would permit the Bible to be taught as literature in public schools. A different version of the bill (HB58) is pending in the House. It is opposed by Republicans because it prescribes The Bible and Its Influence as the required text. (See prior posting.)

UPDATE: On March 27, the Georgia Senate also approved HB 1133, and Gov. Sonny Perdue is expected to sign the law, according to the New York Times.

Church Contributes Funds For Investors In SEC Suit

The Securities and Exchange Commission last week announced a settlement in a securities fraud case filed in Massachusetts involving a unique cooperative effort between a church and government enforcement authorities. In 2001, Eric Resteiner sold $22 million in fictitious securities, defrauding at least 50 investors, many of whom were members of the Christian Science Church. In earlier litigation, the SEC obtained disgorgement of $700,000 from one of Resteiner's co-defendants. Under the securities laws, this will be used to partially compensate Resteiner's victims. Now, the First Church of Christ Scientist in Boston has agreed to donate an additional $2.3 million to the disgorgement fund so that victims can be more adequately compensated. Section 308(b) of the Sarbanes-Oxley Act permits the SEC to accept gifts to a disgorgement fund for eventual distribution to defrauded investors. This is the first time that such a donation has been made since the enactment of Sarbanes-Oxley in 2002.

Background On Pending Satmar Litigation

Yesterday's New York Sun carries a long and fascinating article detailing the intricacies of litigation ongoing for 5 years in Brooklyn over control of the vast holdings of the Orthodox Jewish Satmar community. The dispute, now in a state appellate court, involves rival factions-- each following a different son of the Satmar's grand rebbe. Each faction claims to have elected a president of the Satmar's Williamsburg congregation. The board has the power to manage the Satmar's assets. The congregation's bylaws are written in Yiddish, and one of the 26 buildings in dispute is the partially built skeleton of a 10,000-seat Brooklyn synagogue. New York Judge Melvin Barasch, who heard the case at trial, decided in 2004 that because the dispute raised the question about congregational membership, it was essentially a religious dispute and was not a matter for a New York courts to decide. "What civil court is capable or would want to evaluate whether a person is sufficiently observant of Satmar religious doctrine to qualify as a member?" said Scott Mollen, who represents followers of one of the sons, Rabbi Zalmen. (See prior related postings, 1, 2.)