Court Holds RFRA Applies To Guantanamo Bay

Yesterday in Rasul v. Rumsfeld, 2006 U.S. Dist. LEXIS 26665 (D DC, May 8, 2006), the U.S. District Court for the District of Columbia held that the Religious Freedom Restoration Act applies to detention facilities at Guantanamo Bay in Cuba. It also held that RFRA applies to non-resident aliens, as well as U.S. citizens, and permitted four former Guantanamo detainees (all of whom are British citizens) to proceed with their claim that guards humiliated and harassed them as they tried to practice their religion while in custody. In February, the court had dismissed constitutional and international law claims raised by the same plaintiffs. (See prior posting.)

California Hearings On Bill To Limit Relief For Public Religious Displays

Today the California state Senate Judiciary Committee will hold hearings on SB 1499 which would limit lawsuits challenging the governmental display of religious symbols to ones seeking injunctive relief. Neither damages nor attorneys fees would be available in suits against public agencies and public officials who violate Section 4 of Article I of the California Constitution, if their challenged action consisted only of the public display of a religious symbol on an official seal, on a court house or other government facility, on public land, or on any veterans' memorial or monument. WorldNetDaily today has background on the bill.

Louisiana Senate Passes 10 Commandments Bill

State legislatures roll on with their attempts to restore the display of the Ten Commandments on public property. Yesterday, according to 2theadvocate.com, the Louisiana Senate voted 34-1, and sent on to the House, a bill that would permit display of the Ten Commandments along with other specified historical documents. Under the legislation (SB 476), the Secretary of State’s Archives Division is to prepare copies of the various historical documents quoted in the legislation in a form suitable for framing. The will then be available for a fee to state offices, clerks of court, judges or other local governing authorities.

Some Protestant Churches Oppose Federal Marriage Protection Amendment

The Ontario California Daily Bulletin today focuses on moves by a number of more liberal Protestant denominations to oppose the the proposed Federal Marriage Protection Amendment to the Constitution. That amendment would define marriage as a union between one man and one woman. A number of Baptist, Evangelical Lutheran, Episcopalian, and Unitarian churches oppose the amendment, arguing that it favors one religious view of marriage over others, and would codify that religious view in the Constitution.

Call For Implementing Civil Burial Option In Israel

In Israel, activists are calling for the new government to finally implement free civil burial options, in addition to the existing provision of religious burials at government expense. Yivat Solel, legal advisor to the Menucha Nechona (Rest in Peace) organization, writing an op-ed for YNet News says: "Ten years ago, Israel enacted a law requiring the state to provide burial options for all citizens, in accordance with their beliefs-- at no cost. But to date, the only cemetery in the country that has implemented the law is the regional cemetery in Beer Sheva." Solel charges that existing burial societies have impeded implementation of civil options to protect the revenue they now receive from conducting religious ceremonies.

UPDATE: Jerusalem's Mayor Uri Lublianski has announced that Jerusalem will create a cemetery for free burial of secular Israelis, despite opposition from the city's large ultra-Orthodox community. The first secular cemetery to be endorsed by a municipal government, it should be completed by 2007. (Haaretz, May 9.) [Thanks to Dick Schectman for the lead.]

Bank Charged With Unnecessarily Closing Muslim Charity's Account

The Washington Post over the week end reported that Muslim groups are launching a public campaign against Wachovia Corp. to force it to explain why it closed the bank account of a Herndon, Virginia Muslim social service organization. The treasurer of the Foundation for Appropriate and Immediate Temporary Help said she suspects that Wachovia closed its account because it received a donation from a charity run by a Muslim businessman whose home and offices were raided by federal agents. Banks are required to report suspicious financial activity in accounts to federal authorities. The cost of monitoring may lead a bank to decide that it is cheaper to close the account.

First Amendment Religion Casebooks and Texts Available

As the academic year ends, law school faculty may be considering books to use for next year's courses. Increasingly, the major law school publishers are offering casebooks and texts devoted solely to the Religion Clauses of the First Amendment. Here are the ones that are currently available:

Foundation Press:

• Volokh's The Religion Clauses and Related Statutes, Problems, Cases and Policy Arguments (2005).
• Conkle's Constitutional Law: The Religion Clauses (2003).
• Noonan and Gaffney's Religious Freedom: History, Cases Interaction of Religion and Government (2001, with 2005 Supplement).

Aspen

• Michael W. McConnell, John H. Garvey & Thomas C. Berg, Religion and the Constitution (2nd Edition, 2006).

Lexis-Nexis

• Stephen G. Gey, Religion and the State (2001, plus annual supplements).

West

• Ravitch's Law and Religion, A Reader: Concepts, Cases and Theory (2004).
• Berg's The State and Religion in a Nutshell (2nd Edition, 2004).
• Loewy's Religion and the Constitution: Cases and Materials (1999, with 2002 Supplement).

Egyptian Government Appeals Ruling Recognizing Bahai

In Egypt, the Interior Ministry yesterday filed an appeal asking the Supreme Administrative Court to reverse a ruling issued last month by a lower court recognizing the right of Bahais to have their religion acknowledged on official documents, including national identity cards. Reuters reports that the appeal was filed after many in Parliament argued that only religions recognized by Sunni Islam should appear on official government documents. That approach would limit the religions that could appear on official documents to Islam, Christianity and Judaism. The Interior Ministry suggests that adherents of other faiths should merely draw a line through the section of their national identity cards that calls for an indication of the individual's religion.

Recent Prisoner Free Exercise Decisions

In Sanders v. Zeller, 2006 U.S. Dist. LEXIS 26425 (ND Iowa, April 28, 2006), an Iowa federal district court rejected a free exercise claim brought by a Muslim inmate who was denied the right to attend one week's Friday Jummah service because of an error in recording of his religious preference on jail records.

In Jordan v. Lynn County Jail, 2006 U.S. Dist. LEXIS 26358 (ND Iowa, April 20, 2006), an Iowa federal district judge accepted a magistrate's recommendation to deny summary judgment to jail officials on an inmate's claim that he should have been allowed to attend Christian church services even though he also wanted to observe Muslim religious practices.

In Clark v. Levesque, 2006 U.S. Dist. LEXIS 25917 (D. Conn., March 17, 2006), a Connecticut federal district judge denied a Rastafarian prisoner's claim that his free exercise rights were violated when Connecticut prison officials, experiencing overcrowding at in-state facilities, transferred him to a federal correctional facility in Virginia with a strict grooming policy that disciplined him for refusing to cut his hair and shave. The court also rejected his claim that his treatment upon his return to a Connecticut prison was retaliation against him for practicing his religion.

Persecution Of Protestants Continues In Uzbekistan

Forum 18 last week reported on continued repression of Protestants in Uzbekistan. The report focuses on arrests and other actions taken against Jehovah's Witnesses and other Protestant churches. The Prosecutors Office forced a number of children who attended a Protestant Easter celebration to sign statements that they would no longer attend Christian services or meetings and that they were renouncing their Christian faith. Parents were pressured to sign promises that they would no longer "attract their children to Christianity", and were warned that failing to comply could result in their being deprived of their parental rights.

Librarian Wins On Claim For No Sunday Work

The Alliance Defense Fund announced on Friday that a federal court jury in Kansas City, Missouri has awarded damages for back pay in excess of $53,000 to a librarian formerly employed by the Rolling Hills Consolidated Library System. Librarian Constance Rehm prevailed on her claim against the public library system that it had failed to adequately accommodate her need to abstain from work on Sunday for religious reasons. Rehm was fired for insubordination shortly after she requested a change in her work schedule. (Background.) Rehm's suit was based on Title VII of the 1964 Civil Rights Act which applies to both public and private employers.

Competing 10 Commandments-Amendments Days Declared For Today

A number of religious leaders, including religious broadcasters, have formed the Ten Commandments Commission and declared today to be the First Annual Ten Commandments Day. The Commission was formed "to counter the secular agenda and help restore the Ten Commandments and Judeo-Christian values to their rightful place in our society." Radio and television stations around the country today will be broadcasting a special program for the occasion.

Meanwhile, a competing group has declared today to be Ten Amendments Day. Its website says: "On May 7th, a Ten Commandments Day Commission and millions of followers are lobbying to replace the Ten Amendments with the Ten Commandments, replacing our civil rights with their religious preferences. This attempt to align the power of government with the authority of God challenges the Establishment Clause of the First Amendment and endangers the rights protected by the other Nine."

FLDS Jeffs Placed On FBI's Most Wanted List

Warren Jeffs, former leader of the FLDS Church, has has joint Usama Bin Laden and others on the FBI's Ten Most Wanted Fugitives list, according to CBS/AP. Jeffs, who was the leader of the polygamous Fundamentalist Church of Jesus Christ of Latter Day Saints based in Utah and Colorado, is wanted on charges of arranging marriages between underage girls and older men, sexual conduct with a minor, and rape as an accomplice. (See prior posting.)

Recent Books and Articles On Church-State Issues

Books:

• Former Secretary of State Madeline Albright has published The Mighty and the Almighty: Reflections on America, God, and World Affairs, (Harper Collins, 2006). This week, Time carries an interview with her about the book.
• David L. Holmes, The Faiths of the Founding Fathers, (Oxford University Press, 2006). The book is reviewed in today's New York Times, along with two others in a review essay titled Keeping the Faith at Arms Length.

Articles from SSRN:

• Ira C. Lupu & Robert W. Tuttle, Federalism and Faith, (forthcoming, Emory Law Journal, Vol. 56, No. 1).
• Larry Alexander & Frederick Schauer, Law's Limited Domain Confronts Morality's Universal Empire, (forthcoming,William and Mary Law Review).
• Matthew L.M. Fletcher, American Indian Religious Freedom Act, and Indian Bill of Rights (forthcoming, Encyclopedia of American Civil Liberties).

From SmartCILP:

• Mark E. Chopko & Michael F. Moses, Freedom To Be a Church: Confronting Challenges To the Right of Church Autonomy, 3 Georgetown Journal of Law & Public Policy 387-452 (2005).
• Jonathan C. Lipson, When Churches Fail: The Diocesan Debtor Dilemmas, 79 Southern Calif. Law Review 363-454 (2006).

In Jamaica, Outlawed Occult Practices Are Popular

Today's Jamaica Observer has a long article on the ritual of obeah whose practice is widespread on the island of Jamaica even though it has been outlawed for 246 years. Obeah includes a wide range of rituals concerned with divination, healing, ancestral veneration, and manipulating and controlling supernatural forces. The Obeah Act subjects to up to a year in prison "any person who, to effect any fraudulent or unlawful purpose, or for gain, or for the purpose of frightening any person, uses, or pretends to use any occult means, or pretends to possess any supernatural power or knowledge." However at least two pharmacies in downtown Kingston carry carved candles and potions used in the myal branch of obeah.

South African Muslim Challenges Dress Code for Prison Employees

In South Africa, a Muslim prison social worker has been dismissed by the country's Correctional Services department for refusing to remove her headscarf and tuck in her shirt for religious reasons, according to IOL on Friday. Muslim women are required by Sharia to cover their hair and the shape of their bodies. The Muslim Judicial Council plans to challenge the dismissal of Fairouz Adams in the Labour Court, after Adams internal appeals were rejected. The Council argues that enforcing the department's dress code in this manner unconstitutionally infringes on Adams' religious freedom protected by Sec. 15 of the South African Constitution.

Profile Of Native American Prison Spiritual Leader

Friday's Sonora, California Union Democrat carries a profile of Charles "Golden Bear" Freer, who is employed as a Native American spiritual leader by Sierra Conservation Center and 3 other northern California prisons. The article traces how Freer, a Comanche, came to his current position after early battles with depression and alcoholism. Freer says that while spirituality can help ease the pain of prison life, the real need is for half-way houses tailored to the needs of Native American prisoners once they are released.

Church Sues Defrocked Priest For Breach Of Agreement

Court TV yesterday reported on the details of a fascinating lawsuit filed last December by the Catholic Diocese of Toledo, Ohio against a defrocked priest, Chet Warren. After the Diocese concluded that child abuse charges lodged against Warren were credible, it expelled him from his religious order and banned him from any form of religious ministry. However, the Diocese allowed Warren to continue to attend Mass. Also the pastor of Blessed Sacrament Church agreed with Warren that he could visit a separate Eucharistic Chapel that is inside the Church, but only at limited times and under restricted conditions. Parishioners, however, discovered that Warren was violating his agreement by visiting the chapel at hours of his own choosing and while wearing clerical garb. The chapel is close to areas of the church frequented by children. So the Diocese has sued Warren for breach of contract and trespass, asking the court to order Warren to abide by his agreement or else to exclude him totally from any part of Blessed Sacrament church’s premises.

The complaint (full text) also asks for nominal monetary damages. Warren has filed an answer (full text) containing general denials and several affirmative defenses.

Bureau of Prisons Sued Over "Life Connections" Program

The Freedom From Religion Foundation announced yesterday that it has filed suit against the Attorney General, the Federal Bureau of Prisons, and the Office of Management and Budget to challenge the Bureau of Prison’s faith-based Life Connections Program. Three federal taxpayers are also plaintiffs in the suit filed in federal district court in Wisconsin. The FFRF Complaint alleges that the challenged program is "designed to effect personal transformation using the participant's faith commitment." It was created by Bureau Chaplain Kendall Hughes as a faith-based model "based on the premise that inmates should pursue, nurture and commit themselves to religious faith." Life Connections is operating in at least 5 institutions, and the Bureau is now soliciting proposals for a pilot "single-faith" residential re-entry program. (See prior posting.) The lawsuit claims that federal funding of Life Connections violates the Establishment Clause. It also challenges the practice of the Office of Management and Budget in “grading” agencies on the extent to which they have increased funding to faith-based agencies.

On Balkinization last month, Marty Lederman posted the arguments that support FFRF’s claim of unconstitutionality. He concluded: "With all of these constitutional infirmities, it is hard to imagine that the Office of Legal Counsel signed off on this BOP program."

China Reacts To Criticism Of Its Policies On Religious Issues

A Chinese Foreign Ministry spokesman on Saturday denounced the recent report of the U.S. Commission on International Religious Freedom that names China as one of eleven “countries of particular concern”. Xinhua reports on the Ministry’s reaction. The Ministry says that China protects its citizens’ religious freedom, and that the USCIRF report encourages the practice of the Falungong "cult".

At the same time, China seems to be attempting to patch up its dispute with the Vatican. Reuters reports that the Vatican’s choice, Father Paul Pei Junmin, will be consecrated as a bishop in Shenyang on Sunday morning. Earlier this week, to the dismay of Pope Benedict XVI, China's Church appointed two bishops who had not been approved by the Vatican.

Church Precluded From Asserting Statute of Limitations In Priest Sex Case

Yesterday in Doe v. Archdiocese of Cincinnati, (Ohio Ct. App., May 5, 2006), an Ohio appellate court applied the doctrine of equitable estoppel to preclude the Archdiocese of Cincinnati from invoking the statute of limitations in a suit growing out of a high schooler’s 1965 sexual relations with her priest and the resulting pregnancy. The plaintiff, identified merely as Jane Doe, alleged that various members of the Archdiocese knew about the situation and the Archdiocese paid for her to spend most of her pregnancy at a home for unwed, pregnant teenagers. A nun, who had been one of Doe’s teachers, then pressured Doe to give up the baby for adoption and remain silent about the identity of the child’s father. Among other things, the nun, Sister Mary Patrick, told Doe that her baby would not be baptized, and so not cleansed of original sin, if she did not consent to an adoption.

The court also rejected the Church’s contention that the case would involve it in deciding the legitimacy of Church doctrine on issues such as baptism and sin, in violation of the First Amendment’s free exercise guaranty. The court found Doe’s complaint sufficiently alleged that the Archdiocese’s actions were in fact motivated by a secular purpose—the Church’s interest in not paying child support.

Reporting on the decision today, the Cincinnati Enquirer said that Doe and her daughter were recently reunited after the daughter began searching for her birth mother.

Pope and EC President Meet

AKI reports that on Friday, Pope Benedict XVI for the first time met with European Commission President José Manuel Barroso. Responding to the Pipe’s concern about freedom of worship, Barroso said: "Freedom of religion is not negotiable, arises from the fundamental rights of people and communities, and is a cornerstone of European law. Mutual respect and understanding are our basic principle, along with democracy, dialogue and debate." They also discussed inter-religious and inter-cultural dialogue, and the fight against poverty.

Class Action Claims Discriminatory Citizenship Delay For Muslim Men

Yesterday’s Chicago Tribune reported that ten Muslim men have filed a class action in federal court in Illinois alleging that the U.S. Attorney General, the Department of Homeland Security and the FBI have illegally delayed their being sworn in as U.S. citizens, even though they have met all the citizenship requirements. The suit alleges that they should have been sworn in within 120 days of qualifying, but instead they and other Muslim males have been waiting for a year or more. The inability to become a citizen prevents an individual from voting and from holding certain government jobs.

Establishment Claims At Hawaii Youth Correctional Facility Not Proven

In R.G. v. Koller, 2006 U.S. Dist. LEXIS 24968 (D Haw., Feb. 7, 2006), a Hawaii federal district court refused to grant a preliminary injunction in a suit by teenagers confined at the Hawaiian Youth Correctional Facility who claimed that HYCF violated the Establishment Clause. Plaintiffs alleged that HYCF endorsed religion by allowing the wards to keep only Bibles and no other personal belongings or books in their cells. They also claimed that certain HYCF staff members promoted religion, often discussing religious teachings and quoting from the Bible, and that HYCF ratified the conduct of these staff members. The Court found that the evidence was not sufficient to support these claims. The court did, however, preliminarily enjoin various other practices at HYCF, finding them to be a violation of the due process clause.

School Prayer Amendment Introduced In House

The Huntington News reports that yesterday in the U.S. House of Representatives, West Virginia Congressman Nick J. Rahall introduced a proposed Constitutional amendment (H.J. Res. 85) that would permit voluntary school prayer. The proposal is identical to the one introduced in the Senate last week by Sen. Robert Byrd. Rahall timed his introduction of the amendment to coincide with the National Day of Prayer.

Student Sues After Ban On Handing Out Religious Literature

Today's Charlotte Observer reports on a federal lawsuit that has been filed in North Carolina by a ninth-grade student who claims that he was disciplined for passing out flyers in his school during non-class time. After the Gay, Lesbian, Straight Education Network at Dunn, North Carolina's Midway High School sponsored April 26 as a Day of Silence, student Benjamin Arthurs came to school wearing a Day of Truth shirt, and handed out cards presenting a Christian viewpoint on homosexual behavior. The principal had told Arthurs that he could not hand out his literature because he would be pushing his religion on other students. When Arthurs ignored the ban, he was given a one-day suspension. The student is represented by the Alliance Defense Fund. The complaint in Arthurs v. Sampson County Board of Education asks the court to declare the school's policy unconstitutional under the 1st and 14th amendments, and to enjoin further application of the policy.

More Litigation on Kentucky Statehouse 10 Commandments

The legal sparring continues in Kentucky's efforts to install a Ten Commandments monument on its Capitol grounds. In March, Governor Ernie Fletcher signed a law authorizing the monument. (See prior posting.) However, in 2000, in Adland v. Russ, a federal district court had issued an injunction prohibiting a 10 Commandments display that the state legislature had authorized by joint resolution. So yesterday the ACLU went back to court claiming that placing the monument on government property, under Kentucky's new legislation, will violate that injunction. The governor's office says it has no intention of moving ahead until it gets the injunction lifted. ACLU attorney David Friedman says, "We hope to persuade the court that the legislature's newly discovered 'historical purpose' for erecting the monument is a thinly disguised sham for its original religious purpose." Developments are reported by the Lexington Herald-Leader and the Louisville Courier-Journal.

6th Circuit Rejects Claim By Prison Chaplain

In Akridge v. Wilkinson, (6th Cir., April 26, 2006), the U.S. 6th Circuit Court of Appeals has rejected a claim by a Baptist minister employed as a chaplain in the Ohio prison system. Ohio Department of Rehabilitation and Correction (ODRC) officials fined Chaplain William Akridge two days' pay after he refused to comply with their directive to allow an openly gay inmate to lead a choir or praise band that was scheduled to participate in Protestant services at the Madison Correctional Institution. Akridge had argued that his refusal to place the inmate a position of leadership in the worship service was speech protected by the First Amendment. However the court found that the state's interest in preventing discrimination, in protecting inmates' free exercise rights and in enforcing discipline among prison employees all justified ODRC's action. Yesterday's Gay City News reported on the decision.

Arizona State CLS Gets Limited Attorneys' Fees Award

Last September, the Christian Legal Society settled the lawsuit it had brought against Arizona State University. The parties agreed that CLS could limit its membership to Christians, but could not discriminate on the basis of sexual orientation. (See prior posting.) Now the Arizona federal district court has ruled in CLS's claim for an award of attorneys' fees, and has permitted only 20% of the fees claimed because of the limited success of counsel in achieving CLS's original goals in the settlement. Christian Legal Soc'y. Chptr. at Arizona State Univ. College of Law v. Crow, 2006 U.S. Dist. LEXIS 25579 (D. Ariz., April 28, 206).

Knoxville School Board Passes Policy On Religious Expression

A pending lawsuit against the Knoxville, Tennessee schools over student rights may now be closer to final dismissal. (See prior postings 1, 2.) The Knox County School Board on Wednesday unanimously passed a policy clearly permitting students to freely engage in religious exercise and expression during discretionary times, such as recess, so long as they do not disrupt the educational process, harass others or prevent school officials from maintaining order. A second vote on the school board's new rules is required for them to become final. The Knoxville News Sentinel yesterday reported on these developments, as well as on a second resolution passed by the board affirming that the school system complies with state and federal laws on religion and religious expression in schools.

Today Is "National Day of Prayer"-- With A Long Prelude

May 4 is this year's National Day of Prayer. President Bush yesterday issued a Presidential Proclamation, as required by 36 USC Sec. 119 , to mark the first Thursday in May as a time "on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals." The President said that the day reaffirms the role of prayer in American culture.

In anticipation of the day, advocacy organizations this week issued competing press releases. American Atheists said that the role of the day is "to distract public attention from real political and social problems facing the American people." Meanwhile, the Alliance Defense Fund announced that it had sent a letter to 1200 cities encouraging local officials to participate in activities recognizing the National Day of Prayer. It also said that there is no obligation to give parallel recognition to atheists or others who do not participate in the Day's observances. ADF offered free legal representation in the event a city is sued over observing the day.

Today's Christian Science Monitor reports on yet another prelude to the Day. Evangelical Christian groups are conducting the 17th Annual U.S. Capitol Bible Reading Marathon on the west lawn of the U.S Capitol. The 90 hour event, ending today, began with the reading of Genesis and will conclude with a unison reading of the last two chapters of the book of Revelation. Two dozen members of Congress and their staffers are among those who have read from the Bible's text. Critics say that the event is an attempt by evangelicals to link government to Christian ideals. Supporters say that the event is merely a reminder of the important role that faith played in America's founding. In a related matter, members of Congress and historians are debating how prominent the Bible should be in the displays on the history of the Congress that will be in the $522 million Capitol Visitors Center that will open in 2007.

UPDATE: Religion News Service today reported on ceremonies at the White House to observe the National Day of Prayer. The 150 invited guests at the ceremony represented Christians, Jews, Muslims and Buddhists.

7th Circuit Denies En Banc Review In Taxpayer Standing Case

Yesterday , in Freedom From Religion Foundation v. Chao, (7th Cir., May 3, 2006), by a vote of of 7-4, the U.S. 7th Circuit Court of Appeals denied en banc review of a 3-judge panel's decision in an Establishment Clause case. At issue was whether taxpayers have standing to challenge purely Executive Branch spending decisions that may promote religion. The panel held that taxpayers had standing to challenge White House spending from a general appropriation to promote President Bush's Faith-Based Initiative, even though Congress had not earmarked the funds for that specific purpose. Judges Flaum and Easterbrook both wrote opinions concurring in the denial of review. Judge Ripple , who was the dissenting member of the panel whose decision was being appealed, wrote a dissent from the denial of review which 3 other judges joined.

Federal Judge Moves To Enforce Removal Of Mt. Soledad Cross

In San Diego, California yesterday, a federal judge moved to enforce a permanent injunction that he first issued in 1991, requiring the city of San Diego to remove the cross that sits atop Mt. Soledad. For over a decade the city has sought ways to avoid the ruling, most recently by trying to transfer the property on which the cross sits to the federal government. That attempt was struck down by a state trial court as unconstitutional under California's constitution, but the decision is on appeal. But now, according to yesterday's San Diego Tribune, U.S. district judge Gordon Thompson is threatening to fine the city of San Diego $5000 per day if it does not remove the cross. Of course, Thompson's order to comply may be appealed. Here are prior postings tracing the long history of this dispute: 1, 2, 3, 4, 5.

UPDATE: At a rally on Saturday, San Diego Mayor Jerry Sanders urged City council to authorize an appeal of Judge Thompson's ruling to the U.S. 9th Circuit Court of Appeals. City Attorney Michael Aguirre, however, thinks that the city has a weak case. (San Diego Union-Tribune, May 7.)

UAE Police Investigating Illegal Pro-Christian Pamphlets

In Dubai on Wednesday morning, according to Gulf News, residents were angered by the comic-book style pamphlets they found on at least 20 car windshields. The booklet told the story of a Mulsim man who denounces his faith and converts to Christianity. In the story, a Christian man describes Muslims as "moon worshippers" and claims that Islam is a false religion. A Muslim in the story says that the "Islamic flag" will fly over the White House by 2010, at which time Muslims will kill all "infidels".

Dubai police will investigate since preaching faiths other than Islam is a criminal offence in the UAE. It is punishable by a prison sentence of up to ten years followed by deportation. Distributing pamphlets without a license is also illegal.

ACLU Director Criticizes Suit Seeking Parental Notice On Class Content

Today's Lexington (Massachusetts) Minuteman carries an op-ed piece by Carol Rose, executive director of the Massachusetts ACLU, critical of a suit filed last week against Lexington school officials by parents who claim that their religious freedom is infringed when, without prior notice, their children's classes discuss gay or lesbian issues, and when school textbooks depict gays and lesbians. Rose says that free exercise "has never meant that individual parents could demand prior notice of discussions in the public schools that might be at odds with one group's religious views."

Courting The Religious Right In Gubernatorial Primaries-- An Update

Appeals to the Christian right in state gubernatorial races seems to be producing mixed results. Yesterday in Ohio, Secretary of State Kenneth Blackwell, a favorite of Ohio's "Patriot Pastors", won the Republican primary, defeating Attorney General Jim Petro, who had also made appeals to religion in his campaign ads. On the Democratic side, voters nominated Ted Strickland to run for governor. Currently a member of Congress, Strickland is an ordained Methodist minister. Today's Columbus Dispatch reported on the primary results.

Meanwhile, in Alabama, former state chief justice Roy Moore who is running in the Republican gubernatorial primary on June 6, is trailing his primary opponent, Gov. Bob Riley, by a 2-1 margin according to today's Washington Post. Moore achieved the status of a hero among the Christian right after his defense of a 10 Commandments monument he placed in the rotunda of the state judicial building in 2001. Riley, however, has not ignored the religious issue. He holds weekly Bible study classes with his staff.

China-Vatican Reconciliation Derailed By Appointment of Bishops

Both the New York Times and BBC News report that what less than two weeks ago looked like improved relations between China and the Vatican now seems to have been derailed as China's Catholic Church installed two bishops in the last three days without Vatican approval. The Chinese Catholic Patriotic Association, the alternative church hierarchy in China, picked the two prelates, but it is likely that the moves had top-level government approval.

UPDATE: On Thursday, Pope Benedict XVI strongly condemned China's conduct. (Reuters report.)

Commission On International Religious Freedom Releases Report

Today, the United States Commission on International Religious Freedom announced this year's recommendations from it to the Secretary of State on countries that should be designated "countries of particular concern" under the 1998 International Religious Freedom Act. Eleven countries found to be the most egregious violators of principles of religious liberty were named: Burma, North Korea, Eritrea, Iran, Pakistan, China, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan and Vietnam. Put on a "watch list" this year were Afghanistan, Bangladesh, Belarus, Cuba, Egypt, Indonesia, and Nigeria. Also, USCIRF is closely monitoring developments in India, Russia, Sri Lanka and Iraq. Today the Commission also released its 2006 Annual Report on policy recommendations to promote international religious freedom. The recommendations of USCIRF were highlighted in a reports published in today's South Africa Mail & Guardian, and by Voice of America.

University of Wisconsin To Permit Disputed Funding Of Catholic Group

The Associated Press reported yesterday that University of Wisconsin-Madison Chancellor John Wiley says that despite his reservations on church-state grounds, he will recommend to the Board of Regents that the University's Roman Catholic Foundation get $145,000 in funding that will be used to run an evangelical ministry, hold prayer groups and print Lenten booklets and weekly bulletins. (See prior posting.) Students leaders approved the funding from student fees earlier this year. The Catholic Foundation, represented by the Alliance Defense Fund, had threatened to sue, saying that denial of funding would amount to unconstitutional viewpoint discrimination in the distribution of student fees. On the other hand, the Freedom From Religion Foundation now says it will likely file suit challenging approval of the funding as a violation of the separation of church and state. Chancellor Wiley said that in the future he will not support similar funding without more information on how it will be used.

European Court Vindicates Convicted Turkish Author

The European Court of Human Rights announced today that it has issued an opinion holding that the conviction of a Turkish author for defiling religion violates the freedom of expression protections in Article 10 of the European Convention on Human Rights. The judgment awarded damages in the amount of 3000 Euros to Aydın Tatlav who wrote a book titled Islamiyet Gercegi ("The Reality of Islam"). The book takes the position that religion has had the effect of legitimizing social injustices by portraying them as "God's will". First published in 1992, the book's 5th edition was published in 1996. It was at that time that a prosecution was initiated by Turkish authorities upon complaint of a private citizen. The European Court said that Tatlav's conviction, with a risk of imprisonment, might discourage authors and editors from publishing opinions about religion that were not conformist and could impede the protection of pluralism, which was indispensable for the healthy development of a democratic society.

School Board Member Dismissed As Defendant Cannot Continue In Case

In federal district court in Delaware, Judge Joseph Farnan has said that Indian River school board member Reginald Helms may not continue to be represented in court once he has been dismissed as a defendant in a case challenging the constitutionality of explicitly Christian prayers at school functions. Only the school district remains as a defendant, and it is being represented by lawyers for its insurance company. The Wilmington News-Journal today reports on the ruling. Helms, represented by high-profile Wilmington lawyer Thomas Neuberger, had contended that a judgment against the school district would still impact his personal First Amendment rights, but Judge Farnan said that if that were the case, Helms would need to file a separate suit. Meanwhile, the school district's insurers are claiming that they should be able to stop paying for the district's defense because the school board voted down a settlement offer from plaintiffs.

May Designated Jewish American Heritage Month

May has been designated as Jewish American Heritage Month. Today's Jewish Advocate carries a story about the efforts in Congress that led to President Bush issuing a Proclamation on April 21 (full text) establishing May 2006 as a time to "celebrate the rich history of the Jewish people in America and honor the great contributions they have made to our country."

10 Commandments Trial In Oklahoma

The Tulsa World today describes the testimony in an ongoing trial in Muskogee, Oklahoma, challenging a Ten Commandments monument on the Haskell County courthouse lawn. The testimony focused largely on the intent of the county in erecting the monument. Haskell County Commission Chairman Henry Few said that the Commandments are "a part of Haskell County history" similar to other monuments on the courthouse lawn that honor war veterans, the Choctaw tribe and Stigler High School's 1954 graduating class. However, Pastor Mike Bush, who suggested the monument in 2004, testified that "the Lord just burdened my heart" with the need for the monument. After the county commission approved Bush's proposal, members of 17 area churches raised the $2,000 needed to construct it.

ERISA Exemption For Church Plans Endangers Pensions Of Many Employees

Today's New York Times discusses the growing number of religiously-affiliated hospitals, schools, nursing homes, seminaries and charities that are taking advantage of an exemption for "church plans" in ERISA, the federal law that regulates pensions. Many employees are unaware that their employer has taken advantage of the exemption and that their pensions are no longer covered by federal insurance.

9th Circuit Upholds Limits On Public Employee Religious Expression

Yesterday, in Berry v. Department of Social Services, (9th Cir., May 1, 2006), the U.S. 9th Circuit Court of Appeals upheld the Tehama (California) County Department of Social Services' rules that limited religious expression by its employees. Daniel Berry, an evangelical Christian who worked for the Department, believed that he should share his faith and, where appropriate, pray with other Christians. He challenged the Departmental rules, but the court found that the agency had struck an appropriate balance between the employee's free exercise rights and its concern that the agency not be seen as endorsing a particular religion. The court said in part:

While it allowed employees to discuss religion among themselves, it avoided the shoals of the Establishment Clause by forbidding them from discussing religion with its clients. Similarly, the Department allowed employees to display religious items, except where their viewing by the Department's clients might imply endorsement thus evading the reef of the Establishment Clause. The Department did not prohibit its employees from holding prayer meetings in the common break room or outside, but declined to open the Red Bluff Room to employee social or religious meetings as such use might convert the conference room into a public forum. We conclude that these restrictions were reasonable and the Department's reasons for imposing them outweigh any resulting curtailment of Mr. Berry's rights under the First Amendment of the United States Constitution or Title VII of the Civil Rights Act of 1964.

The case was discussed in an Associated Press report yesterday.

Egyptian Government To Institute Centralized Call To Prayer In Cairo

In Egypt, the Ministry of Religious Endowments has put forward a plan to end the loud and disorganized calls to worship by some 4,000 mosques in Cairo and instead have a centralized call to prayer that is broadcast simultaneously to all the city's mosques. Yesterday's Washington Post says that the government plans to install receivers in all mosques, tuned to a single radio station that broadcasts the call to prayer from al-Azhar, one of the city's main Muslim houses of worship. The receivers will be activated at the proper times and shut off when the synchronized chant is over. Twenty-five muezzins have been selected to work in rotation chanting the call to prayer. The Religious Endowments Minister said the project will cost about $100,000, and should be ready to operate in Cairo in about eight months. Eventually the broadcasts will be extended to mosques in all large Egyptian cities.

Toledo Murder Trial Of Priest Continues With Suggestion Of Ritualistic Killing

In the Toledo, Ohio, the Toledo Blade continues to cover the trial of Fr. Gerald Robinson for the 1980 murder of a nun, Sister Margaret Ann Pahl. Today a Chicago Roman Catholic priest testified that circumstances suggest the killing was a ritualistic murder. Rev. Jeffrey Grob, on the witness stand, pointed out that the murder occurred on Holy Saturday, part of the holiest weekend of the church year. The murder took place in a sacristy where the Holy Eucharist--the presence of God-- is kept between Good Friday and Easter; an altar cloth was used to cover the nun's body, thereby transforming her into an "altar of sacrifice"; and stab wounds over the victim's heart were made in the shape of an inverted cross, a symbol of Satanic worship. Such details, he said, individually may not indicate a ritualistic murder, but in sum represent "a reversal of things sacred that aren't random acts." (See prior postings on the trial 1, 2 .)

In 1980, Father Robinson told the police that another man had admitted to the murder during confession; but then Robinson changed his story. Normally a priest would be excommunicated for revealing anything that was said in a confession, but this has not happened in Robinson's case. Rev. Grob testified, in response to a question, that a church court in deciding whether to excommunicate might take mitigating circumstances into account, such as Father Robinson being under stress because of the police interrogation.

In Israel, Government Formed With Shas As Part of Coalition

Bloomberg News reports that in Israel yesterday, Prime Minister Ehud Olmert was able to create a coalition government with a majority in in Knesset by bringing the Sephardic Orthodox religious party, Shas, into the coalition. Haaretz and the Jerusalem Post today report on detail of the agreement. Shas came in with the understanding that it did not agree to Olmert's plans for evacuation of some of the West Bank settlements. Shas also received a number of other concessions: increased allotments to socioeconomic programs; three cabinet positions (including a minister-without-portfolio in the Prime Minister's Office in charge of religious services); and a provision that essentially rules out any action on permitting civil marriage in Israel. Shas did not get the control it wanted of the Israel Lands Administration. Two other religious parties, the National Union-National Religious Party and United Torah Judaism, criticized Shas's decision to sign the coalition agreement.

Texas Supreme Court To Review Claim Against Pastor-Family Counselor

Yesterday's Fort Worth Star-Telegram reported that the Texas Supreme Court has agreed to review the state court of appeals 2004 decision in Penley v. Westbrook. The court of appeals upheld jurisdiction over several claims by Peggy Penley against Rev. C.L. 'Buddy" Westbrook, pastor of CrossLand Community Bible Church in Fort Worth. Westbrook was also a professional family counselor. Penley sued Westbrook for negligence in his secular role as counselor. After Penly decided to file for divorce against her husband, Westbrook and other church elders published a letter to church members telling them that there was no biblical basis for Penley's divorce, and that she had engaged in a 'biblically inappropriate" relationship with another man. The letter also encouraged the church members "to shun" Penley in order to obtain her repentance and restoration to the church. Westbrook has invoked the First Amendment doctrine that shields churches and clergy from civil suit over ecclesiastical matters.

The First Amendment And Parking Rules

An unusual First Amendment dispute simmering in the nation's capital was covered last week by the Washington Times. Sunday churchgoers regularly ignore the law banning double parking, and D.C. police historically have not been issuing tickets. Now new neighbors are often complaining that their cars are being blocked. In response, the city originally announced that it would begin enforcing the parking rules. However after 1000 clergy and parishioners protested a week ago, the mayor decided to appoint a task force of residents, city officials and church and community leaders to discuss solutions to the problem. Some church members claim that the city is trying to push churches out of the District.

These kinds of parking issues pose intriguing legal questions under exiting First Amendment jurisprudence. The Becket Fund has called attention to the issue in its e-update this week. Its Legal Counsel, Jered Leland, says that enforcement of the double parking law is unconstitutional because it places an unfair burden on religious institutions. Others however claim that the city's non-enforcement policy is illegal because it gives a preference to churches.

If one begins to examine the issue closely, policies in other cities could also be implicated. New York City has an elaborate policy on suspension of alternate side parking regulations. It has identified 34 holidays, many of them religious, on which it suspends the rules that are designed to facilitate traffic flow and street cleaning. Last year, some controversy was generated when New York City Council added the Hindu holiday of Diwali to the list of days on which parking restrictions were eased. If it were not to suspend these rules, it would pose substantial religious burdens on at least some faiths. Observant Jews are precluded from driving cars on many holidays. Enforcing the parking rules would force them to move their autos in violation of Jewish law.

Public Employee Dismissal Upheld For Harassment Including Religious Messages

In Leslie v. Johnson, 2006 U.S. Dist. LEXIS 24064 (SD Ohio, March 14, 2006), an Ohio federal district court rejected a claim by former Ohio Department of Development attorney Mark Leslie that his free exercise rights were infringed when he was dismissed for making unwanted personal advances to fellow employee Karen Banyai and disobeying his supervisors' orders to have no further non-work contact with Banyai. Some of Leslie's unwanted advances to Banyai consisted of sending her religious material and inviting her to participate in various projects sponsored by religious groups. In rejecting Leslie's free exercise claim, the court applied the balancing test that the U.S. Supreme Court developed in Pickering v. Board of Education, for cases involving public employee termination for speaking on matters of public concern.

Religious Groups At Center of Today's "Save Darfur" Rally In D.C.

Today in Washington, D.C. (as well as in other cities around the country), the Save Darfur Coalition is sponsoring a large rally to urge U.S. leaders to take more action to stop the ongoing genocide in Darfur. As reported by yesterday's San Francisco Chronicle, religious leaders from Jewish, Muslim and Christian groups have been at the forefront of the Save Darfur movement. The Baltimore Sun calls this "the broadest coalition of faith-based groups ever assembled for a political cause". American Jewish World Service has take a leading role in the campaign. Its president, Ruth Messinger, along with 5 members of Congress and 5 others, was arrested on Saturday for demonstrating in front of the Sudanese embassy. The Jewish Holocaust experience has made Darfur a particularly resonant issue in the Jewish community.

There are other religious elements in the Darfur situation. The London Sunday Times points out that the violence in Darfur is Muslim-on-Muslim. It also says that "there have been tensions in the Save Darfur campaign over some American Christian groups' zeal for conversions. After complaints, Sudan Sunrise, a group based in Kansas, last week removed references on its website to its 'one-on-one lifestyle evangelism to Darfurian Muslims living in refugee camps in Chad'."

Meanwhile, yesterday President George W. Bush met with organizers of the Washington rally, saying that the United Nations needs to augment African Union troops already in Sudan. In his statement following their talks, Bush said that the U.S. is working through NATO to respond to the situation, and added, "those of you who are going out to march for justice, you represent the best of our country."

New Scholarly Articles On Church-State

From SmartCILP:
Chris Kemmitt, RFRA, Churches and the IRS: Reconsidering the Legal Boundaries of Church Activity In the Political Sphere, 43 Harvard Journal on Legislation 145-180 (2006).

From SSRN:
Kyle Duncan, Subsidiarity and Religious Establishments in the U.S. Constitution, (forthcoming in Villanova Law Review).

Department of Justice Plans Single-Faith Pre-Release Program For Prisoners

Yesterday's Washington Post reported on the Justice Department's plans to create a single-religion, faith-based pilot program to prepare federal prison inmates for release. On March 30, the Bureau of Prisons (BOP) issued a formal Request for Proposals (RFP) from private contractors to run the program, called "Life Connections". The RFP says that the government "intends to make multiple awards for the provision of single-faith, residential reentry programs at one or more pilot site locations." The plan is to set aside cells at up to six federal prisons for the voluntary experiment that aims to "facilitate personal transformation for the participating inmates, and thereby reduce recidivism." $3 million has been appropriated for the program. A BOP spokesperson said it is possible that different prisons could host programs run by different faith groups. Some academics say that the program poses serious constitutional issues. The Department of Justice says the program is constitutional because it is voluntary and gives participating inmates no special advantages.

New Mississippi Law May Permit Teaching of Creationism

Yesterday's Biloxi Sun-Herald reported that Mississippi Governor Haley Barbour has signed into law H.B. 214 that may allow the teaching of both intelligent design and creationism in public school classrooms. The new law provides:

No local school board, school superintendent or school principal shall prohibit a public school classroom teacher from discussing and answering questions from individual students on the origin of life.

Secular Democracy Promoted For Nepal

Following popular demonstrations in Nepal that forced the king to reinstate the Parliament, now the country's second-largest party, the Communist Party of Nepal-Unified Marxist Leninist, is urging that the country become a secular republic. Currently, Nepal is a Hindu kingdom. Daily India yesterday reported on these developments.

3rd Circuit Invalidates Registration Law For Door-To-Door Proselytization

The 3rd Circuit Court of Appeals yesterday struck down a Mt. Lebanon, Pennsylvania ordinance that required registration of door-to-door canvassers who planned to hand pamphlets or written material to residents, or to discuss with them issues of religious or public interest. The case is Service Employees Int’l. Union, Local 3 v. Municipality of Mt. Lebanon, (3rd Cir., April 28, 2006). While the suit was brought by a union that wanted to conduct a get-out-the-vote campaign, the decision is also important for religious groups that wish to proselytize door-to-door. The court held that "the challenged ordinance is not tailored to serve Mt. Lebanon’s legitimate interest in preventing crime and fraud. At the same time, that ordinance substantially burdens a broad range of speech which enjoys the highest level of First Amendment protection." The Associated Press yesterday reported on the decision

Baptist Official Speaks on Church-State Issues

On Friday, the Baptist Standard reprinted parts of a lecture given earlier in the month by Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty. The remarks were part of his Maston Christian Ethics Lectures at Hardin-Simmons University’s Logsdon School of Theology. His title was "The Top 10 Lies About Church & State". He contended that "lies" about the relationship of church and state in America were being perpetuated both by "people who should know better", and by other "well-intentioned souls who simply have been misled".

Hawaii Court To Order Artifacts Removed From Cave

Last December, the 9th Circuit Court of Appeals upheld an earlier district court ruling involving a dispute between competing native Hawaiian groups over valuable burial artifacts. A native Hawaiian group was ordered to return 83 valuable burial objects to the Bishop Museum so that 13 other claimants could help decide their final resting place. Following that decision, federal trial court Judge David Ezra ordered the parties to conduct a Hawaiian mediation process called hooponopono to decide how the items could be removed from Kawaihae, or Forbes Cave, and where they should then be kept. Today’s Honolulu Star Bulletin reports that since then the sides have been meeting under the guidance of mediators, but yesterday it was reported that still no resolution had been reached. So Judge Ezra will now issue a court order requiring the cave to be opened and the objects to be removed in the safest possible way, so all claimants can examine them and have input into their final disposition. (See other related postings, 1, 2, 3.)

Swedish Muslim Group Wants Legal Accommodations; Others Object

The Jerusalem Post reported on Friday that the Swedish government and moderate Muslims in Sweden have strongly rejected a call by Mahmoud Aldebe, head of Sweden's largest Islamic organization, for the enactment of special laws to aid Muslims in observing their religious obligations. Aldebe’s letter was sent to each of Sweden’s parliamentary parties on behalf of the Swedish Muslim Association, as Sweden moves toward fall elections. The letter suggested that Muslims should be given time off work for Friday prayers and Islamic holidays; imams should approve all divorces between Muslim couples; public swimming pools should have one night a week for women-only to swim; imams should have the right to teach Islam to Muslim children in public schools; and special Muslim cemeteries should be established. The only politician who seems to agree with the proposal is Ebtisam Aldebe, running as a member of the Centre Party. (Brussels Journal report.)

Hindu Couple In New York Lose Battle To Keep Cows In Village

I have previously posted information about the appeal filed by an Angelica, New York, Hindu couple, Stephen and Linda Voith, challenging a trial court's decision that prohibits them from keeping their six cows (considered sacred in Hindu beliefs) within the city limits. (Legal background.) On Friday, the Appellate Division affirmed the trial court’s determination. In Village of Angelica v. Voith, (App. Div., April 28, 2006), the court held that husband Stephen Voith had lost in a prior case after fully litigating the same free exercise defenses raised in this case. That operated as collateral estoppel to preclude both him, and his wife Linda who is in privity with him, from relitigating the issue. On the question of whether the town’s ordinance was violated, the court held their leasing of 12 non-contiguous acres did not satisfy the requirement that the animals be kept on at least a 10-acre area. Also the court said that the Voith’s claim that their animals are companions or pets did not bring them into compliance.

PBS Feature On Religion and Politics In Ohio

On Friday, the PBS public affairs program NOW devoted much of its show to issues of religion and politics in a show titled “God’s Country? Religion and Politics In Ohio”. Transcripts from the show and other resources on the topic are available at the show’s website.

Foundation Labeled As Terrorist Claims Free Exercise Infringement

In federal district court in Oregon today, according to The Oregonian, the Al-Haramain Islamic Foundation filed suit against the federal government demanding return of 155 boxes of religious materials-- including Qur'ans, written commentary on the life of the Prophet Muhammad, and other materials designed to explain Islam. The materials were seized two years ago by the Treasury's Office of Foreign Assets Control, as it investigated alleged terrorist activity by the Foundation. In September 2004, the Foundation was designated a global terrorist organization. Treasury officials said it sent money to Islamic fighters in Chechnya, while the Foundation says it merely operated a mosque and distributed Islamic literature to prisoners. The Foundation argues that the government's refusal to release the seized documents violates its First Amendment rights.

Defendant Charges Police Insensitivity To Religious Garb

In Rolling Meadows, Illinois, this week's guilty plea to a misdemeanor battery charge by a Muslim woman brought to an end a disputed encounter between a demonstrator and police, according to Wednesday's Muslim News. Last October 15, Rehana Kahn was arrested while taking part in an immigration rights demonstration. Kahn's version of events is that police rudely ordered her to remove her hijab (headscarf), ignoring her religious concerns. The police version is that while a female officer was searching Kahn, her hijab slipped down 2 or 3 inches, and that Kahn then physically hit 3 different officers. While the battery charge could have led to a year in jail, the judge sentenced Kahn, and 3 co-defendants, to 240 hours of community service and a year of court supervision.

Byrd Introduces School Prayer Amendment

West Virginia Senator Robert Byrd yesterday introduced in Congress a proposed amendment to the U.S. Constitution that would allow voluntary prayer in public schools. The proposed amendment reads:

Nothing in this Constitution, including any amendment to this Constitution, shall be construed to prohibit voluntary prayer or require prayer in public school, or to prohibit voluntary prayer or require prayer at a public school extracurricular activity.

The Charleston Daily Mail reports that this is the eighth time in 43 years that Byrd has introduced the proposal. The Daily Mail also says that it has learned from Byrd's office that Byrd has talked about his amendment and the original intent of the drafters of the First Amendment with Supreme Court Chief Justice John Roberts. The full text of Byrd's expansive speech introducing the amendment is available from his website.

In Minsk, Passover Seder Deemed Unfit For Children To See

In Belarus earlier this month, Minsk city officials refused permission for the local Hassidic Jewish community to hold a Passover seder at the state-owned Palace for Children and Youth. Forum18 reported yesterday that a city official said that the refusal was probably because "it wouldn't be very good to have a religious event at a children's institution – I'm sure you understand." Under the country's religion law, all religious events held outside designated places of worship require official permission. Eventually the Hasidic group held a smaller seder at a synagogue cafeteria, where government permission was not required.

Michigan House Passes Conscience Bill For HMOs and Insurers

Wednesday's Detroit Free Press (via Blog From the Capital) reports that the Michigan House of Representatives has passed two bills permitting insurance companies and HMO's to exclude from coverage any health care benefit on ethical, moral or religious grounds reflected in its articles, bylaws or mission statement. (HB 4745 and HB 4746). The New Standard last month carried an excellent background piece on this legislation, and similar proposals pending in other states. State Representative Scott Hummel, sponsor of the Michigan bills, said that they are preemptive measures to protect against future state mandates, such as a requirement to cover in vitro fertilization.

British Court Rejects Claim Of Burial Benefits Discrimination

In England last month, the Court of Appeal handed down an interesting decision rejecting a discrimination claim by Muslim families who had recently migrated to the United Kingdom. The families sought government benefits to pay for a funeral in their home countries rather than in Britain. In Esfandiari v. Secretary of State for Work and Pensions, [2006] EWCA Civ 282 (March 23, 2006), the court held that it did not violate the European Convention on Human Rights to allow burial benefits only for funerals in the United Kingdom, even though funerals abroad might be no more expensive. The Court said that recent migrants are not a group protected from discrimination by the Convention on Human Rights, as applied by the Human Rights Act 1998. Yesterday's Asian News discussed the case.

2nd Circuit Upholds Church's Right To Shelter Homeless Outside

On Wednesday, the 2nd Circuit Court of Appeals in Fifth Avenue Presbyterian Church v. City of New York, (2nd Cir., April 26, 2006), upheld a permanent injunction granted by a federal district judge in 2004 barring New York City police from dispersing or arresting homeless people sleeping out-of-doors on stairways of the Fifth Avenue Presbyterian Church. The court below in granting the injunction had found that the Church's practice of allowing homeless persons to sleep on its property is an exercise of sincerely held religious beliefs. [LEXIS link to trial court opinion.] The Becket Fund, which filed an amicus brief in the case, has background information on its website.

Pakistan Charges Foreign Papers, Internet Firms With Blasphemy, Capital Offense

Pakistan's Daily Times reports that the Muhammad cartoon controversy is still alive. Iqbal Haider, head of the People’s Support Movement in Pakistan, convinced Pakistan's Supreme Court on Tuesday to order police to register charges under Pakistan's blasphemy law against the Danish newspaper, Jyllands-Posten, its editor, publisher, a cartoonist, and newspapers in France, Italy, Ireland, Norway and the Netherlands that published derogatory drawings of the Prophet Muhammad. Violations of the blasphemy law can be punished by a sentence of death. Also charged were the Internet companies, Yahoo, Hotmail, and Google, who allowed access to the offending drawings. Haider says that now the government should contact the Interpol to bring the offenders to court in Pakistan. Prosecutors, however, say that Pakistan's courts have no jurisdiction since the offenses were committed outside the country. [Thanks to Jawa Report for the lead.]

Reform Rabbinical Leader Speaks At Liberty University

Earlier this week, Rabbi Eric Yoffie, President of the Union for Reform Judaism, spoke at Jerry Falwell's Liberty University. The liberal rabbi stressed those things that his Reform Jewish Movement believes in common with fundamentalist Christians. These include support for Israel, love for America's religious vitality, and concern about America' moral crisis. Yoffie's talk (full text) also emphasized the importance of church-state separation in the United States:

It is understandable, perhaps, that we may feel victimized and under attack and look for quick fixes. And so we hear calls, sometimes from evangelicals and sometimes from others, for prayer in the schools and lowering the wall of church-state separation. But let us beware of simple answers. As a Jew, I don't like it when other Jews find an anti-Semite under every bed; I don't believe that Judaism is seriously imperiled, and I don't think that Christianity is under siege either. Neither do I want to ask the government to solve our problems by imposing its will. Government coercion generates resentment, not godliness, and it is never a good idea to put the government in charge of our thinking.

Today's Forward has an excellent article on the talk that was given at as part of a Wednesday morning prayer service that is mandatory for students and faculty at the University.

Maine Supreme Court Upholds Vouchers Limited To Non-Sectarian Schools

Maine's Supreme Court on Wednesday upheld the state's ban on the use of school tuition vouchers at religious schools. In Anderson v. Town of Durham, (April 26, 2006), the court, in a 6-1 decision, reaffirmed the conclusion it had reached in a 1999 case. It found that subsequent U.S. Supreme Court precedents hold that the State may be permitted to pass a statute authorizing some form of tuition payments to religious schools, but it is not compelled to do so. Today's Morning Sentinel reports that 17,000 students from 145 small towns with no high schools are covered by the voucher program. Towns may pay for those students to attend a non-sectarian public or a private school, but they may not pay for attendance at religious parochial schools.

Coast Guard Relents On Merchant Marine Photo Rule

In March, the New York Civil Liberties Union sued the Coast Guard over rules that required every Merchant Marine license applicant to submit a photograph that showed the applicant without a head covering, such as a Muslim kufi. (See prior posting.) Newsday (as well as an NYCLU Release) reported yesterday that just before a Monday conference in Hakim v. Chertoff with Judge Jed S. Rakoff, the Coast Guard issued NMC Guidance Document No. 2-06 directing its field offices to enforce the regulation to accommodate religious beliefs and medical needs. This will permit applicants to wear religiously-required head coverings, so long as the applicant can be identified in the photo. The NYCLU said it will not dismiss the case until it is certain that the rule change is permanent.

California Sentencing Judge's Reference To Religion OK'd

In People v. Scharf, 2006 Cal. App. Unpub. LEXIS 3372 (Cal. 3rd Dist. Ct. App., April 24, 2006), a California court of appeals rejected a defendant's claim that a trial judge's comments made during sentencing violated the Establishment Clause. Glyn Scharf was convicted of murdering his estranged wife, even though her body had not been found. After sentencing Scharf to prison, the judge appealed to Scharf's religious convictions in urging him to disclose the location of his wife's body. The court of appeals held that this did not constitute judicial misconduct: "The trial court's appeal to defendant's religious beliefs (present or former) did not express the court's favor of one religion over another, or religion over no religion. At most, the trial court suggested that the revelation of the location of Jan's body would inure to defendant's benefit within the belief system of the religion to which defendant himself had once adhered and might still adhere. Thus, even if the court's exhortation to defendant can be construed as a 'comment on religious questions,' defendant has failed to show that it is the sort of comment that contravened the principal of neutrality."

House Committee Defeats Duplicative Anti-Discrimination Amendment To Telecom Bill

Broadcasting & Cable reported that yesterday the House Commerce Committee found itself in the uncomfortable position of voting 29-23 against an amendment to a bill on video franchising that would prevent discrimination in service based religion (as well as race, sex, or national origin). Committee Chairman Joe Barton said that everyone on the committee opposed discrimination; however it is already prohibited by current law. If the amendment to the Communications Opportunity, Promotion, and Enhancement Act of 2006 had been adopted, the bill could have been referred to the Judiciary Committee, where its passage could be delayed.

Churches Moving To Retail and Commercial Space

In RLUIPA, Congress made it clear that public policy favors permitting churches to relocate to new sites. Yesterday's Pittsburgh Post-Gazette carries an interesting article on the problems that some communities and commercial firms anticipate from a growing trend by churches to relocate to strip shopping malls, big box store locations, and corporate campuses. Some churches see these locations as attractive because they are cheaper than building from scratch, and shoppers at nearby stores might be drawn to the church. However many communities are unhappy because churches, as nonprofits, will not pay property tax. Parishoners coming from elsewhere may create traffic problems and increase demand for city services. For nearby retailers, there are concerns about teens from the church roaming the stores, with church members taking up parking spaces, and with the fact that a church may draw less traffic to the retail location than would another store.

Florida House Votes Property Tax Exemption For Holy Land Experience

Yesterday, the Florida House of Representatives passed HB 7183 by a vote of 93-25. The bill will grant a property tax exemption to non-profit organizations for property they use for Biblical displays. It is aimed at resolving a battle between The Holy Land Experience theme park and the Orange County Property Appraiser, according to an Orlando Sentinel blog. The theme park has already succeeded in obtaining a trial court ruling that it is entitled to a property tax exemption under current law, but Orange County has appealed. A Senate version of the tax exemption bill (SB 2676) has not yet been scheduled for a floor vote.

Government and Human Rights Groups Urge Tadic To Reject Serbia's New Religion Law

Last week Religion Clause reported on the controversial new Church and Religious Communities bill passed hurriedly by Serbia's National Assembly. Now a number of governmental and non-governmental organizations are criticizing the bill and urging Serbian President Boris Tadic not to sign it into law. The OSCE and the Council of Europe issued a joint statement on Tuesday saying that the law needed "more precise criteria to define the discretionary powers [of] ... state and religious authorities." It pointed out that the effect of non-registration of religious groups was unclear, as was the legal status of canon laws and ecclesiastical decisions. The statement also criticized the speedy manner in which the bill was adopted, leaving insufficient time for review and public debate.

On Wednesday, the U.S. Helsinki Commission issued a statement criticizing the law's "ambiguous registration requirements, limitations on naming rights, ill-defined state deregistration powers, speech limitations, improper public disclosure requirements, and undue deference to registration decisions of other EU countries." The statement also criticized provisions that would require many minority religious communities now registered to re-register with authorities.

Finally, according to B92 News, a letter signed by nine human rights organizations in Serbia said that the bill brings Serbia's secular character into question. The letter says the new law is contradictory to human rights guarantees in the country's constitution. It charges that the law moves Serbia back toward medieval times and away from modern Europe.

UPDATE: Despite these pleas, Makfax reported Thursday afternoon that Serbia's President Boris Tadic signed the Church and Religious Communities Act into law.

ACLU Questions Louisiana Mayor's Bible Study Class

The Louisiana Chapter of the American Civil Liberties Union is raising questions about a weekly Bible study class being held in City Council Chambers by Mandeville, Louisiana Mayor Eddie Price, according to an Associated Press report yesterday. Price says the classes are non-denominational and are open to anyone, and that they merely serve as a way to educate people about God. He said the class does not violate church-state separation-- its just about reading the Bible. Chuck Staub, a local minister, defending the class said, "All we're dealing with is Jesus of Nazareth", noting that the participants study what Jesus did and why that is important. "Everybody is welcome to come."

Joe Cook, Louisiana ACLU executive director, argued that the sessions advance Christianity over other religions, and said that some city employees may feel pressured to attend. City Attorney David Cressy, however, argued that the classes are permissible because they are a private function, primarily for individuals who work at City Hall.

Challenges To Kentucky Funding For Religious Colleges Filed

The Lexington Herald-Leader reported yesterday that two separate lawsuits have just been filed in Kentucky to test the constitutionality of state funding for religiously-affiliated colleges. Funds have been appropriated for a new Pharmacy School and Pharmacy scholarships at the University of Cumberlands. Also funds are earmarked for a technology center upgrade at Baptist-affiliated Campbellsville University. After the the Executive Director of the Kentucky Fairness Alliance filed suit to challenge funding for Cumberlands' pharmacy school, the Governor's Office for Local Development filed a separate suit asking the court to validate the appropriations for both the University of the Cumberlands and Campbellsville University. The Cumberlands funding became particularly controversial after the school expelled student Jason Johnson because he said on a website that he was gay.

Kentucky Governor Ernie Fletcher says that two of his top advisers differ on the constitutionality of the funding. His chief of staff believes it is unconstitutional. However, his general counsel takes the position that the state's Constitutional ban (Sec. 189) on using tax money to support sectarian schools applies only to elementary and secondary schools and not to colleges.

LDS Church Wants To Buy Part of ASU Polytechnic Campus

The Church of Jesus Christ of Latter-day Saints wants to purchase part of Arizona State University Polytechnic's campus in Mesa, according to a report in today's ASU Web Devil. It proposes to build an LDS Institute of Religion on the site to offer religious courses to students. Both LDS and non-LDS students would be welcome to enroll, but the courses would involve the teachings of the LDS church. Some on the University's Space and Capital Planning Committee worry that the plan would convey a message that the University favors one religious group. At any rate, under current law ASU is not allowed to sell off parts of the campus. In the meantime, LDS has leased a house next to campus to use for an Institute of Religion until it can build permanent facilities.

California May Pass Law Limiting Funeral Pickets

Yesterday's Contra Costa Times reports that California may join a number of other states in enacting legislation to ban protests near funerals or memorial services. AB 2707 was introduced largely in response to protests at veterans' funerals around the country led by Topeka, Kansas Rev. Fred Phelps of the Westboro Baptist Church. Phelps and his followers carry signs claiming that soldiers are dying in Iraq and Afghanistan because God is punishing the United States for being tolerant of gay and lesbian behavior. Attorney Shirley Phelps-Roper, one of Rev. Phelps' daughters argues California's bill is unconstitutional: "They may not remove us from sight or sound of our target audience. What (AB 2707) has done is targeted our religious message, and they are prohibiting the free exercise of our religion." Last week's Mail & Guardian discusses Phelps' activities. Phelps' website, "God Hates Fags" lists upcoming funerals at which he and his followers will be carrying picket signs.

Florida State Charitable Campaign Sued By Religious Charities For Access

Yesterday, the Association of Faith-Based Organizations filed suit in federal court in Florida challenging the refusal by Florida’s State Employees’ Charitable Campaign to include religious charities in the organizations to which state employees may contribute funds. Attorneys from the Alliance Defense Fund and the Christian Legal Society represent AFBO. (News Release.) The complaint (full text) alleges that the policy violates free exercise, speech and associational rights of religious charities and denies them equal protection of the laws. A somewhat similar suit is pending in Wisconsin.

Rastafarian Prisoner Can Move Ahead On One Claim

In Acoolla v. Angelone, 2006 U.S. Dist. LEXIS 21559 (WD Va., April 10, 2006), a Rastafarian prisoner sued the Virginia Department of Corrections claiming that his religious beliefs require him to keep his hair and beard uncut; wear religious beads in his hair; eat a vegan-kosher diet; use prayer oil; and participate in group worship on Saturday in a ceremony that includes the use of drums, chanting, readings, and religious conversations. A Virginia federal district court rejected all of the prisoner's claims of access to these, except for his request for a kosher vegan diet. On that claim the court denied summary judgment, finding that the record was insufficient at present to support a finding that defendants' refusal furthered a compelling interest by the least restrictive means.

First Use Of Utah's Hate Crime Law May Be For Religious Bias In Assault

The county attorney in Utah County, Utah, says that the first prosecution under the state's new hate crimes law may be in the offing. An 18-year-old man was arrested for aggravated assault after he allegedly harassed a 21-year-old Orem man about the LDS Church, and then attacked him with a bat. Yesterday's Deseret News reported on the arrest. The new law provides for a one-step misdemeanor enhancement in sentencing for hate crimes. It also permits the impact of a hate crime to be considered as an aggravating factor in sentencing. Even though the effective date of the new law is May 1, prosecutors apparently believe it is available for a crime committed before that date.

Judge Apologizes To Sikh Excluded From Courtroom

A judge in Laurens County, Georgia has written a letter of apology to Tarun Singh Kataria, a Sikh who was denied entry to the court last August under its "no hats" policy. Sunday's Panthic Weekly reported that the court has also formally changed its security policy on religious head coverings to explicitly permit Sikhs wearing turbans into the courthouse. The Sikh American Legal Education and Defense Fund (SALDEF) intervened for Mr. Kataria, obtaining not only an apology from Judge Helen Harper, but a refund of the traffic fine Kataria was coming to court to contest.

Two Cases Reject Church Autonomy Jurisdictional Challenges

Wooten v. Crayton, (Mass. App., April 24, 2006) involved a dispute between two factions of a congregational church over congregational votes to disaffiliate with the United Church of Christ, to authorize the building of a new church, and to affiliate with the American Baptist Church Conference. A Massachusetts appellate court held that the trial court should not have completely dismissed the case on church autonomy grounds. Instead "in recognition that there is a secular interest in facilitating a peaceful solution", the court concluded that it could enforce the decision of the body that had authority to govern the church. Finding that the church by-laws called for governance by the church membership, the appellate court held that the membership votes should be enforced.

In a recently available decision in Passmore v. Sixth Judicial District, 2005 Mont. LEXIS 705(Mont. Sup. Ct., Nov. 16, 2005), the Montana Supreme Court refused to intervene to stop a trial court from proceeding in a case against a church alleging negligence in hiring, retaining and supervising the church's pastor. Petitioners had claimed that the trial court's proceedings would impinge on the church's teaching of religion or free exercise of religion.