More Prisoner Free Exercise Cases

A number of prisoner free exercise decisions have recently become available. Some date back a few months. In all of them, inmates were unsuccessful in challenging prison or halfway house rules:

In Smith v. Ozmint, 2006 U.S. Dist. LEXIS 54852 (D SC, March 31, 2006), a South Carolina federal district court accepted a Magistrate Judge's recommendation that a preliminary injunction be denied in a RLUIPA challenge to prison grooming policies by a Rastafarian prisoner.

In Wren v. Johnson, 2006 U.S. Dist. LEXIS 54183 (SD TX, July 26, 2006), a Texas federal district court dismissed an action by a Native American prisoner who alleged that he was denied the opportunity to participate in sweat lodge and pipe ceremonies.

In Grigsby v. Sims, 2006 U.S. Dist. LEXIS 55599 (SD OH, Aug. 10, 2006), an Ohio federal district court dismissed an inmate's claim that his free exercise rights were violated when he was required to work on Sundays. The inmate failed to present evidence to support his claim that he is a practicing Christian who sincerely believes that Sunday should be observed as a day of rest. UPDATE: For the Magistrate Judge's report and recommendations in the case (adopted by the court), see 2006 U.S. Dist. LEXIS 59860 (SD OH, June 28, 2006).

In Roberts v. Ozmint, 2006 U.S. Dist. LEXIS 55486 (D SC, Aug. 7, 2006), a South Carolina federal district court rejected a Hebrew Israelite prisoner's claim that forced haircuts violate his free exercise rights.

In Hastings v. Marciulionis, 434 F. Supp. 2d 585 (D WI, June 6, 2006), a Wisconsin federal district court rejected an inmate's challenge to rules of a halfway house program that prevented him from leaving to attend religious services or a Pow Wow during his first 14 days in the program and which precluded him from possessing an eagle feather at the halfway house.

Court Does Not Stop City-Sponosored "Day of Faith"

In Jacksonville, Florida, a federal district judge Saturday morning refused to issue an injunction against Saturday's "Day of Faith" event sponsored by Mayor John Peyton, Sheriff John Rutherford and Jacksonville's city council. The sponsors invited the city's faith communities to take part in the rally to "take back our neighborhoods" after the city experienced a large increase in murders this year. The lawsuit claimed that it is a violation of the First Amendment for the city to sponsor a religious event on city property with city funds. News4Jax.com reported that the judge did not rule on the constitutional issue, finding instead that the parties were not given adequate notice of the suit. The suit was not filed until late Friday afternoon.

Religious Issues Dominate Murder Trial In Turkey

In Turkey on Friday the trial of Alparslan Arslan and eight accomplices began. Arslan is accused of the May 17 shooting in the Council of State, Turkey's highest administrative court, that wounded four judges and killed one. The shooting, according to Reuters, was prompted by Arslan’s anger over a ruling by the court that upheld denying promotion to a Muslim kindergarten teacher for wearing a headscarf outside of the classroom. (See prior posting.) The AP reports that during Friday’s trial, Arslan twice unsuccessfully attempted to escape from toe courtroom to attend Friday prayers. The first attempt came in the morning after the presiding judge refused to interrupt the proceedings so the defendant could go to pray. The second attempt came in the afternoon when Arslan heard the call for prayer from a nearby mosque.

"Ministerial Exception" Blocks 2 Title VII Race Cases

In Bogan v. Mississippi Conference of the United Methodist Church, 433 F. Supp. 2d 762 (SD MI, May 5, 2006), a Mississippi federal district court rejected a racial discrimination claim filed under Title VII by an African-American pastor who argued that he and other African-American pastors had not been promoted to higher paying church positions because of their race. They were offered positions only with churches that had majority African-American members, and which generally paid less than other churches. He also claimed that he was placed on administrative leave for absences from his parsonage while Caucasian pastors were not similarly penalized. However the court held that the "ministerial exception" to Title VII, rooted in first Amendment concerns, required it to dismiss the case. It also rejected plaintiff’s attempt to rely on the Religious Freedom Restoration Act.

In Ajabu v. St. James United Methodist Church, 2006 U.S. Dist. LEXIS 55014 (MD GA, Aug. 8, 2006), a Georgia federal district court relied on the ministerial exception to Title VII to dismiss a case brought by a black pastor who claimed that he was terminated as Associate Pastor of a white church for racial reasons, and that the church's claim of doctrinal differences was merely a pretext.

Controversy Over Sunday Use Of City Ball Fields

The Waterbury, CT Republican-American reported Wednesday on a decision taken last month by the Watertown (CT) Parks and Recreation Commission to reinstate a prior policy that precluded the granting of permits for Sunday morning use of the city’s athletic fields by sports teams. This had been the city’s policy until last March when the Commission, under pressure from youth sports organizations, voted to allow the recreation department to issue Sunday morning permits. After clergy and residents objected to the new policy, arguing that Sunday mornings should be reserved for religious services and quality family time, the Commission reinstated its old policy. That action, in turn, has led the state chapter of American Atheists to object. Its director, Dennis Paul Himes, wrote the Commission saying that he personally felt the well-being of families and upbringing of children would be improved "by spending time in practically any activity except going to church." He urged the Commission to let individuals decide for themselves what Sunday activities they prefer.

RI Auto Dealer Sunday Closing Law Upheld

In Lynch v. Autoplex, C.A., 2006 R.I. Super. LEXIS 98 (RI Super., July 25, 2006), a Rhode Island trial court held that the state's Sunday Motor Vehicle Law does not violate the Establishment Clause. The law (RIGL 31-5-19) requires auto dealerships to remained closed on Sundays.

US Muslims Object To Bush's Statement On Terror Arrests

In a statement in Green Bay, Wisconsin yesterday, President George W. Bush reacted to British arrests in an alleged terrorist airplane bombing plot, saying: "The recent arrests that our fellow citizens are now learning about are a stark reminder that this nation is at war with Islamic fascists who will use any means to destroy those of us who love freedom, to hurt our nation. " Reuters reports that leaders of Muslim advocacy groups in the United States strongly criticized the President's choice of language. Nihad Awad, executive director of the Council on American-Islamic Relations, said: "We believe this is an ill-advised term and we believe that it is counterproductive to associate Islam or Muslims with fascism. We ought to take advantage of these incidents to make sure that we do not start a religious war against Islam and Muslims."

Good News Clubs Win Again In 4th Circuit

Yesterday in Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, (4th Cir., Aug. 10, 2006), the U.S. 4th Circuit Court of Appeals again struck down the Montgomery County Maryland Public Schools' policy on approval of take-home flyers. The suit was brought by the Good News Clubs that wished to publicize their after-school Bible group meetings offered to elementary school students. In its second decision in the case, the court found that in a new policy adopted after an earlier one was struck down, the school system retained unfettered discretion in deciding which flyers could be sent home with children. Thus, even if the flyer policy involved merely a non-public forum, the unbridled discretion it gave to school officials violated free speech protections because it failed to assure that the policy would be administered in a viewpoint neutral manner. The Associated Press has a short article on the decision. [Thanks to Derek Gaubatz via Religionlaw for the information.]

Colorado Court Allows Church Challenge To Parking Limits

In Town of Foxfield v. Archdiocese of Denver, (Colo. Ct. App., Aug. 10, 2006), a Colorado appellate court considered challenges to an ordinance that restricted parking near the rectory of a Catholic parish. The rectory is used for housing, religious instruction, and gathering of parishioners, and the property also contains a small chapel. The court held that church activities affect interstate commerce sufficiently to make RLUIPA applicable. It also held that the parking ordinance's delegation of exclusive enforcement authority to citizens constituted governmental enforcement through individualized assessment under RLUIPA. The court held that the ordinance at issue was not exempt from Colorado's Freedom to Gather and Worship Act as a "general parking ordinance". Finally it held that the trial court should have applied strict scrutiny in assessing the constitutionality of the parking ordinance because it is not a neutral law of general applicability. There was evidence that it was specifically passed to target the rectory, and its enforceability only after the city receives written complaints from three neighbors creates the possibility of arbitrary enforcement. The decision is reported on by today's Rocky Mountain News. The Becket Fund provides background on the case.

Canadian Court Rejects Church's Tax Discrimination Claim

In Vancouver, a British Columbia judge has ruled against a Jehovah's Witnesses congregation that claimed it was being discriminated against when it was taxed on the property surrounding its church building. Wednesday's Globe and Mail reports that in 2003 municipalities in British Columbia were given new powers to tax property around a place of worship, while the church building itself remains exempt. The Jehovah's Witnesses congregation in Coquitlam is the only congregation, so far, to have to pay the new tax. The congregation that had been fully exempt from property taxes for 35 years had to build a new Kingdom Hall when some of its land was taken by the province to widen a road. Madam Justice Carol Ross ruled that the only burden created by the tax is indirect and not substantial. However, she sent the case back to the city for reconsideration because she ruled there was a lack of procedural fairness in the consideration of the Church's request for a tax exemption.

UN Official Assesses Religious Freedom In Maldives

The United Nations Special Rapporteur on Freedom of Religion, Asma Jahangir, on Wednesday completed a visit to the Maldives. She welcomed enactment of the country's new Law on the Human Rights Commission but said that it does not meet the requirements of the 1981 UN Declaration on the Elimination of All Forms of Intolerance and Discrimination because the law requires that all Commission members be Muslim. (All residents of the Maldives are Muslim.) (Minivan News.) She said that in her report to the U.N. Human Rights Council, she will recommend that Maldive prisons be more religiously sensitive to the spiritual and dietary needs of foreign prisoners. (U.N. Press Release; Jahanigir's Press Conference Statement). However, according to Minivan News, Maldives Justice Minister Mohamed Jameel strongly criticized the U.N. official's visit, saying: "I have been told that she is asking people why this is not allowed in Islam and why that is not allowed in Maldives. It's because of her attitude that I am condemning her visit. I condemn anyone who comes to Maldives under the shadow of human right activists while challenging the Islamic unity in Maldives. It doesn't matter even if it is the United Nations or any other organization."

Buddhist Temple Sues California City For Use Permit

In Garden Grove, California, Quan Am Temple, a Buddhist congregation, has sued under the First Amendment and RLUIPA to obtain permission to use a one-story building it bought two years ago as a house of worship. It also wants permission to then build a temple on the site that is zoned for office use. According to today's Los Angeles Times, the congregation has 15 monks and nuns, plus 250 to 600 congregants. The city's Planning Commission and City Council have rejected the congregation's request to use or build on the site for a temple, concerned about noise and traffic. Suing on behalf of the congregation, the ACLU of Southern California argues that the city has routinely allowed non-religious non-profits to locate in commercial areas. The congregation has even offered to voluntarily pay property taxes if it is allowed to build on the site.

Regulations Issued Under Serbia's New Religion Law

In Serbia on July 26, Religion Minister Milan Radulovic issued regulations implementing the country's recently enacted Religion Law. Forum18 says that the new regulations are inconsistent with provisions of the statute, raising from 75 to 100 the number of members a religious organization needs in order to be registered. The new regulations leave unclear what rights unregistered religious organizations will have.

History Of Witness Oaths

Reporting a story about a 20-year old art student convicted of graffiti vandalism, who was also held in criminal contempt for refusing to take the oath as a witness, today's Pittsburgh Post-Gazette carries an interesting article on the form of the oath that witnesses are required to take. Pennsylvania's oath calls for the potential witness to "swear by Almighty God, the Searcher of all hearts". The article reviews much of the history of oaths and objections to them over the years.

California Proposal To Fund Historic Missions Stalls

The Oakland County Register yesterday reported that a proposed amendment (SCA 32) to the California Constitution to permit state funds to be used for the upkeep of historic missions stalled in the legislature this week. Senate Judiciary Committee Chairman Joe Dunn has raised church-state questions about the provision of state money to institutions where religious services are frequently held. In February, California's attorney general issued an opinion stating that funding would violate the state's current constitution. (See prior posting.)

Coast Guard To Change Religious Head Covering Policy

The Associated Press reports today that the Coast Guard has finally decided to change its rule prohibiting religious head coverings. The new rules, which "have verbally gone into effect" but have yet to be formally adopted, permit head coverings that fit under a uniform hat or helmet. However, to be permissible the headwear cannot bear bright colors, writing, pictures or symbols. This will permit skullcaps, but will exclude Sikh turbans. Further background is in a prior posting.

University Of Wisconsin Refuses To Recognize Student KofC Group

The University of Wisconsin-Madison has refused to give formal recognition to the Knights of Columbus as a student organization. The University says that the Catholic men's organization violates university rules that prohibit student organizations from discriminating on the basis of religion, as well as a requirement that student organizations be student controlled. Today's Chicago Tribune says that the Alliance Defense fund has written the University demanding that it stop applying non-discrimination requirements to Christian student groups. The university says that its policies do not violate a 7th Circuit ruling last month granting a preliminary injunction forcing Southern Illinois University to recognize the Christian Legal Society.

UPDATE: The University of Wisconsin announced that it reached an agreement with the Knights of Columbus yesterday to create a student group open to all students that will be recognized by the University in time for the beginning of Fall semester.

UPDATE: On Thursday, the faculty adviser to the Knights of Columbus denied that an agreement had been reached with the University of Wisconsin.

UPDATE: Later on Thursday, the University apologized for its erroneous announcement of an agreeement with K of C. (Gazette Extra).

Court Rejects Free Exercise Defense To Child Support Order

A Washington state court of appeals this week in a child support case rejected a father's claim that as a church "missionary," he did not have an income and had taken a "vow of poverty" that precluded him from accepting paid employment. The court held that the state's child support laws are neutral laws of general applicability, and their enforcement does not violate the father's First Amendment's free exercise rights. The case is In re Didier, (Ct. App. Wash., Aug. 8, 2006).

City Gives Church Use Permit To Avoid Lawsuit

Antioch, California city council voted on Tuesday to grant a use permit to the congregation of La Palabra de Dios to move its church to a location within a planned arts and entertainment district. Today's Contra Costa Times says that council members agreed only reluctantly in order to avoid the cost of defending a federal lawsuit under RLUIPA that was threatened by church attorneys if the permit was refused. Lawyers for the church say the city was unfairly criticizing the congregation, arguing that the city's redevelopment plan for the area had not been successful.

Court Refuses To Dismiss Suit By Christian Schools Against UC

The Los Angeles Times reports that a California federal district court yesterday rejected the University of California's motion to dismiss the suit against them by Calvary Chapel Christian School of Murrieta, several of its students and an association of Christian schools. The suit alleges religious discrimination, as well as free speech and association claims, because the University refuses to recognize certain high school courses in science, English and history taught from a Christian religious perspective taken by college applicants. While the court agreed to dismiss claims against several university administrators in their individual capacities, it permitted plaintiffs to proceed with their First Amendment claims against the University. (See prior posting.)

En Banc Review To Be Sought In O'Hare Case

The Arlington, IL Daily Herald reports that trustees from both Bensenville and Elk Grove Village, Illinois on Tuesday decided to seek an en banc rehearing in the DC Circuit in Village of Bensenville v. Federal Aviation Commission. Earlier this week, the cities lost a bid to block the expansion of O'Hare Airport in a challenge under the Religious Freedom Restoration Act to the moving of a cemetery as part of the airport expansion. (See prior posting.)

New Jersey Supreme Court Expands Sexual Abuse Liability Of Charitable Organizations

In a 5-1 decision yesterday, the New Jersey Supreme Court in Hardwicke v. American Boychior School, (Aug. 8, 2006) held that New Jersey's Charitable Immunity Act only bars claims based on simple negligence, and not those based on intentional, reckless or grossly negligent conduct. The court went on to hold that under the state's Child Sexual Abuse Act that a boarding school can be a passive abuser standing in loco parentis in the household. It held that the state's relaxed statute of limitations in child abuse cases applies to common law as well as statutory claims, and that an employer can be held vicariously liable for child abuse by its employees. Jurist reports on the case.

State Judge Admonished For Infringing Muslim Woman's Rights

Washington state's Commission on Judicial Conduct has reprimanded Tacoma Municipal Court Judge David Ladenburg, who ejected a Muslim woman from his court room after she refused to remove her headscarf. Yesterday's Seattle Times reports that the Commission found Ladenburg created an appearance of bias by his actions, and issued an "admonishment" to him. Ladenburg subsequently apologized to the woman. (See prior posting.) The Commission's full opinion issued on Aug. 4 says that the evidence showed no actual bias or prejudice by Ladenburg, but instead merely a mistake of law about the individual's free exercise rights. It said: "A judge's honest but mistaken application of the law does not usually result in judicial discipline. Here, however, Respondent failed to consider settled law, which resulted in a courtroom practice that infringed upon constitutional rights and created an appearance of bias. Accordingly, Respondent's actions rise to the level of sanctionable conduct." In the disciplinary proceeding, Ladenburg agreed not retaliate against anyone involved in bringing charges against him. He also agreed not to repeat his conduct, to study the judicial conduct rules and to take a course on cultural competence.

Aso Proposes Turning Shrine Into Secular Memorial

In Tokyo today, Japan's Foreign Minister Taro Aso joined the rising number of voices that are calling for the country to transform the controversial Yasukuni Shrine into a secular entity sponsored by the government. MCT reports on a detailed series of steps proposed by Aso to eliminate the religious nature of the shrine. In recent years, a number of court cases have challenged as a violation of church-state separation visits by Japan's Prime Minister to the Shinto shrine. The shrine is also controversial because among the war dead it honors are Japanese war criminals. (See prior posting.)

2nd Circuit Hears Arguments In Church Anti-Gay Billboard Case

Agape Press reports that in New York today, the U.S. Second Circuit Court of Appeals is hearing arguments in Okwedy v. Molinari. The case involves a challenge to action taken by the president of the Borough of Staten Island who wrote a billboard company urging it to taken down an anti-gay billboard advertisement posted by Keyword Ministries church. The billboard carried four versions of a verse from the Bible, Leviticus 18:22. The King James Version reads: "Thou shalt not lie with mankind as with womankind. It is abomination". The billboard was signed: "I AM your Creator." The Center for Law and Policy represented the church in a suit alleging, among other things, violation of free speech rights. Initially the district court dismissed the suit, but the Second Circuit in a 2003 opinion reversed as to the free speech claims. On remand, the federal district court again dismissed the suit and the church again appealed, leading to today's arguments.

Church Groups Lack Standing To Challenge Lethal Injection

A Montana federal district court yesterday held that two religious groups, as well as the ACLU, lack standing to pursue a challenge to the execution of convicted murderer David Dawson. The Montana Association of Churches and the Montana Catholic Conference claim that lethal injection can be so painful as to amount to cruel and unusual punishment. Dawson himself wants his execution to go ahead. Today's Great Falls Tribune reports on the judge's order.

Finnish Court Finds Religious Male Circumcision Illegal

In Finland, according to yesterday's Helsingen Sanomat, a trial court judge has found a Muslim mother guilty of assault for having her four-year-old son circumcised. The case was brought after the boy's father complained that he had not been consulted. The court held that the procedure, even though performed by a physician, amounted to an assault and that not even a long religious tradition justifies not protecting the bodily inviolability of the boy. The same principle that outlaws female circumcision was seen by the court as applying to males as well. The trial court imposed no punishment on the mother as the case moves to the Court of Appeals.

Recent Prisoner Cases

In Bloch v. Samuels, 2006 U.S. Dist. LEXIS 53732 (SD TX, Aug. 3, 2006), a Texas federal district court rejected the claims of a former inmate at a federal halfway house who was denied permission to leave the premises to attend daily Roman Catholic Mass.

In Balawajder v. Texas Dep't of Criminal Justice Institutional Division, (TX Ct. App., July 31, 2006), a Texas state appeals court reversed a trial court and decided that issues of fact remain in claims by a Hare Krishna inmate brought under the Texas Religious Freedom Restoration Act. The court held that issues remain as to whether the Department has a compelling interest in prohibiting additional storage space for religious materials, even though it allows it for legal and educational materials, and whether the it has a compelling interest to prevent the administrative burden of reviewing prisoners' eligibility for additional storage space for religious materials.

In Henderson v. Berge, (7th Cir., Aug. 3, 2006), the 7th Circuit Court of Appeals rejected a Taoist prisoner's Establishment Clause claim based on a Wisconsin prison's providing a satellite television channel broadcasting Christian programming, but not ones providing programming for other religions.

New Head Of White House Faith-Based Office Appointed

Almost unnoticed last week, President George W. Bush appointed a new head of the White House Office of the Faith-Based and Community Initiatives. He is Jay Hein. The White House's Aug. 3 announcement of the appointment said:

Mr. Hein is the President of the Sagamore Institute for Policy Research, a national think tank he founded that specializes in community-based reforms. Mr. Hein also serves as Executive Vice President and CEO of the Foundation for American Renewal, which provides financial grants and other support to community-based organizations and educates the general public on effective compassion practices.

"Jay has long been a leading voice for compassionate conservatism and a champion of faith and community-based organizations. By joining my Administration, he will help ensure that these organizations receive a warm welcome as government's partner in serving our American neighbors in need," stated President Bush.

Mr. Hein previously was Executive Director of Civil Society Programs at the Hudson Institute. Earlier in his career, he served as a Welfare Reform Policy Assistant to the Governor of the State of Wisconsin...

One of the few papers covering the appointment of the Indiana resident was the Indianapolis Star which said that White House officials discovered Hein when, at the suggestion of former Indiana Senator Dan Coates, they went to Hein for suggestions about other candidates for the job.

Planned Katrina Memorial Creates Church-State Issues

Last year's Hurricane Katrina has been the source of many controversies, and now, according to yesterday's New Orleans Times-Picayune, another one is brewing. This time it is over the memorial to the storm's victims being planned in St. Bernard Parish. The monument, which was authorized by the Parish Council, will feature a cross bearing a likeness of the face of Jesus. Two parish officials are co-chairing the memorial committee-- on their private time. Importantly, the site chosen for the monument-- the banks of the Mississippi River Gulf Outlet, a public waterway-- will be private property since erosion has eliminated the government-owned land that previously comprised the waterway's banks. And the monument is being financed with private donations.

The ACLU of Louisiana has protested. Its July 28 open letter to St. Bernard Parish President Henry Rodriguez said that either building a religiously neutral monument or moving the monument to private property would be acceptable. However the Times-Picayune article suggests that now the ACLU is arguing that even if the memorial is placed on private property, there was sufficient government involvement in authorizing it to create Establishment Clause problems.

Cardinal Says Basic British Document Supports Anti-Catholic Attitudes

In Scotland, according to today's Times Online, Catholic Cardinal Keith O'Brien has called on the British government to repeal the 300-year-old Act of Settlement that prevents Roman Catholics or those who marry them from ascending to the throne. He said that this constitutional document still describes Catholicism as "the popish religion" and calls Catholics "papists". Recently there have been high profile attempts to eliminate ugly anti-Catholic chants that Glasgow Rangers Football Club fans enjoy. The Scottish Parliament has created a working group on religious hatred. But Cardinal O'Brien argues that the anti-Catholic provisions enshrined in British law support the kinds of attacks that Parliament and soccer clubs are trying to eradicate.

Kentucky Schools Rediscovering Old Statute

According to Saturday's Lexington (KY) Herald-Leader, schools in Kentucky are rediscovering an old Kentucky statute (KRS 158.190) that provides "no book or other publication of a sectarian, infidel or immoral character, or that reflects on any religious denomination, shall be used or distributed in any common school." It also prohibits schools from teaching "sectarian, infidel, or immoral doctrine." Schools are adding the prohibitions to their official policy manuals. According to the paper's report, Kentucky courts have ruled that despite the reference to "sectarian" publications, the ban does not apply to the Christian and Hebrew scriptures. This presumably refers to the 1905 Kentucky Court of Appeals decision in Hackett v. Brooksville Graded School District, 120 Ky. 608 [LEXIS link] that rejected a claim that the King James translation of the Bible was a sectarian book.

School Board Wants Private Funds To Defend Jesus Painting

The Harrison County, West Virginia school board has agreed to defend the painting of Jesus at Bridgeport High School only if it can find non-government sources for the $150,000 anticipated cost of litigation before the Board's next meeting on August 25. Friday's State Journal reports that school board member Mike Queen, acting as a private citizen, is heading up the fundraising effort. In June, Americans United brought suit to challenge the painting that has been hanging in the school for at least 30 years. (See prior posting.)

Malaysia Ruling On Jurisdiction In Mixed Family Law Issue

Malaysia's Civil High Court in Kuala Lumpur has handed down a decision resolving one of the complexities stemming from the vesting jurisdiction over Islamic family law issues in Syariah courts., but jurisdiction of non-Muslim family law matters in civil courts. (Background.) On Friday, Sun2Surf reported on the case in which a Civil High Court ruled that it has jurisdiction over a complex custody matter. Aishah Abdullah is the mother of two children born out of wedlock. After the children were born, Aishah converted to Islam, but did not have her children converted. Since neither of the children (nor their father) is Muslim, Syariah courts would not have jurisdiction over the custody claim.

RFRA Challenge To FAA Approval Of O'Hare Expansion Rejected

The D.C. Circuit Court of Appeals today, in a case based on the Religious Freedom Restoration Act, eliminated a major hurdle that had been in the way of the expansion of Chicago's O'Hare Airport. In Village of Bensenville v. Federal Aviation Commission, (DC Cir., Aug. 4, 2006), the court rejected a petition challenging the Federal Aviation Administration's approval of an airport layout plan-- a necessary step in obtaining federal funding. The approved plan involved relocating the remains of those buried in a nearby cemetery. Members of a church that owned the cemetery and descendents of those buried in it argued that moving the remains would substantially burden their religious exercise because of their belief in the physical resurrection of the bodies of Christian believers. Relying on RFRA, the challengers insisted that the FAA was required by RFRA to show that the plan they approved was the least restrictive means of meeting the government’s compelling interests in reducing airport delay and enhancing airport capacity.

In a 2-1 decision, the majority held that the expansion plan that will impact the cemetery was developed and will be implemented by the city of Chicago. RFRA applies only to the federal government, not to state and local government action. FAA approval does not turn the city's implementation into into federal action. Judge Griffith dissenting argued that FAA approval of a plan that it screened, studied, chose and modified is enough to require the FAA to comply with RFRA.

In addition, the court the court unanimously held that it lacked jurisdiction to consider a challenge to the FAA letter expressing a nonbinding intention to obligate federal funding for O'Hare's expansion because the letter was not a final order.

The Chicago Tribune covers the court's decision. It explains that additional litigation remains. A suit now before the U.S. 7th Circuit Court of Appeals, among other things, is challenging a 2003 Illinois law that specifically exempted the cemeteries involved from the state's Religious Freedom Restoration Act. (See prior posting.)

Wiccan Veteran's Widow Asks Americans United For Help

Roberta Stewart, whose husband was killed when the military helicopter he was in was shot down over Afghanistan, has now asked Americans United For Separation of Church and State to assist her in her long struggle to get the Department of Veterans Affairs to approve placing a Wiccan symbol on her husband's grave marker in a veteran's cemetery. The Reno(NV) Gazette-Journal today reports that AU assistant legal director Richard Katskee says this is a situation in which the government, which has approved emblems for 38 other religions, is playing favorites. AU will first try to resolve the issue by negotiations, but will file suit if that does not work. Veterans Administration spokesman Matthew Burns said that his department has merely "deferred a decision on this application until [it] completes its efforts to develop a uniform set of rules by which all applications can be considered." (See prior posting.)

More Anti-Conversion Legislation In India

The battle over anti-conversion laws in India goes on. Now the Chhattisgarh state legislature has voted to enact a law requiring official approval for any religious conversion. However, in order to facilitate the reconversion of Christians to Hinduism, the bill provides that "returning to one's forefather's religion or his original religion will not be treated as conversion." BBC News today reports that Christian groups are reacting strongly against the bill and hope to persuade the governor to refuse to sign it. (See prior related posting.)

Korean Evangelicals Sent Home From Afghanistan

The Middle East Times reports today that Afghanistan has begun to deport 600 South Korean Christians who had recently come to the country, out of fear for their safety. Their visit was sponsored by the Institute of Asian Culture and Development, and was undertaken despite warnings against it from the South Korean government. Afghan authorities claimed the group had come to attempt to convert Muslims to Christianity, and Muslim clerics had begun to speak out against them. South Korean Christians are known for aggressive evangelism in Muslim countries. Here is another report on the story from Radio Free Europe, emphasizing the group's denials that they were planning conversionary activities. They were trying to organize a "peace festival" that would include a medical conference and two soccer games.

Senate Hearings On Bill To Deny Attorneys' Fees In Establishment Clause Cases

On Wednesday, a subcommittee of the Senate Judiciary Committee held hearings on the Public Expressions of Religion Act, S.3696, a bill that would preclude the award of attorneys' fees in Establishment Clause cases. The Senate bill explicitly refers to a number of high profile kinds of cases as being among those covered. The language would assure that plaintiffs could not recover attorneys' fees in challenging the Mt. Soledad cross , "In God We Trust" on coins and currency, the Ten Commandments in federal buildings, and government chartering or aid to the Boy Scouts. Sen. Sam Brownback, who sponsored the bill, issued this release on the hearings. The American Legion testified in favor of the bill, while in a release, Americans United opposed its passage.

FLDS Member Gets Light Sentence In Polygamous Sex Charges

Court TV reports that on Wednesday, an Arizona judge sentenced polygamist Kelly Fischer to only 45 days in jail for having sexual relations with a teenager that he took as his third wife. He will also be on probation for 3 years and will be required to register as a sex offender. A member of the FLDS church that encourages polygamy, Fischer is the first of 7 to be tried for polygamous marriages to minors. The judge told Fischer that his religious beliefs do not justify his violating the law. The woman involved, now 21, refused to cooperate with the prosecution and supported Fisher.

Federal Court Hears Arguments On Sectarian City Council Prayer

In Richmond, Virginia on Thursday, a federal district judge heard arguments on summary judgment motions in a case in which a Fredericksburg City Council member is challenging Council policy that does not let him invoke the name of Jesus Christ when he offers an opening prayer at council meetings. The Associated Press reports that Judge James R. Spencer suggested he was not convinced by the First Amendment arguments raised by council member Hashmel Turner's lawyer. Judge Spencer told the lawyer that all of the case law was against him. (See prior posting.)

Recently Available Prisoner Free Exercise Cases

In Chambers v. Steed, 2006 U.S. Dist. LEXIS 52920 (D. Kan., July 25, 2006), a Kansas federal district court rejected a prisoner's claim that his rights were violated because his segregated confinement prevented him from attending Friday prayer services.

In Andreola v. Wisconsin, 2006 U.S. Dist LEXIS 52968 (ED Wis., July 19, 2006), a Wisconsin federal district court held that federal law precludes the award of compensatory damages in RLUIPA claims by prisoners alleging merely mental or emotional injury. However the court refused to grant defendants summary judgment on a punitive damages claim. The decision came in a long-running suit in which a prisoner alleged that he was denied a kosher diet while incarcerated. In Magistrate Judge P.A. v. Miami-Dade County, 2006 U.S. Dist. LEXIS 52595 (SD Fla., May 16, 2006), a Florida federal district court similarly held that, despite 42 USC 1997e(e), nominal and punitive damages may be recovered for free exercise violations, even though there are no physical injuries from the violations.

In Martinez v. Ortiz, 2006 U.S. Dist. LEXIS 52350 (D. Colo., July 31, 2006), a Colorado federal district court permitted a Native American prisoner to proceed with a claim for injunctive relief, but not for monetary relief, in his free exercise claim stemming from limitations placed on his religious practices.

In Madison v. Kilbourne, 2006 U.S. Dist. LEXIS 52994 (WD Va., July 18, 2006), a Virginia federal district court rejected an inmate's claims that he was denied his rights under the First Amendment and RLUIPA when on one day prison authorities denied him two kosher meals.

Officials Are Trying To Correct Tax Sale Of St. Louis Synagogue

In St. Louis, tax officials are in court today asking a judge to undo the sale at auction of a $4.5 million synagogue building-- Central Reform Congregation-- for $11,800. The problem arose because the synagogue owed a little over $4000 in back taxes on a house it had bought next door to the synagogue. The properties were combined on tax records because the synagogue failed to apply for a separate tax exemption for the synagogue building. So a dispute over taxes on the house subjected the entire property to a tax lien. Yesterday's St. Louis Post Dispatch gives details.

Pedophile Claims Free Exercise Protections

In Cleveland, Ohio yesterday, a man charged with sexually assaulting nine boys who have physical or mental disabilities argued in court that his activities were protected by the First Amendment's free exercise clause. According to the Associated Press, Phillip Distasio, who admits he is a pedophile, says he is the leader of a church called the Arcadian Field Ministries. He says having sex with children is a sacred ritual of his church. Distasio made the argument himself after his court-appointed lawyer refused to put forward a First Amendment defense.

Las Vegas Sued Over Ban On Feeding Homeless

In Las Vegas, Nevada yesterday, the ACLU of Nevada filed suit challenging an ordinance passed July 19 that prohibits "providing food or meals to the indigent for free or for a nominal fee" in any city park. The complaint alleges, according to the Associated Press, that the statute violates the First and 14th Amendments, including the rights to freedom of speech and free exercise of religion.

Canadian Muslim Claims Religious Right To Install Satellite Dish For Condo

In Halifax. Nova Scotia on Tuesday, a Human Rights Board of Inquiry held a hearing on a complaint by a Muslim condominium owner who claims religious discrimination because condo rules do not permit him to keep a satellite dish that he installed for religious reasons. Wednesday's Halifax Daily News reports that Ahmed Assal was told by the condo managers that he could not install a dish that picks up 18 Arabic channels from the Middle East. Assal wanted the satellite dish so he could to teach his three children about their religion, language, culture and traditions. One of the managers told him that satellite dishes were not permitted under the condominium bylaws and that a dish could damage the roof. After 21 months, Assal moved ahead and installed a dish on a tree in his backyard. He says that the condo board has granted exceptions to various rules for other owners. But the managers say those other owners, unlike Assal, made formal requests for rule waivers.

Pennsylvania Zoning Ordinance Challenged By Church

Liberty Counsel has filed a federal lawsuit on behalf of the Lighthouse Christian Center against the city of Titusville, Pennsylvania, challenging the city's zoning ordinances that exclude churches from commercial areas and only permit them in areas zoned residential. CNSNews.com reported yesterday that the lawsuit alleges that the "church-free" zoning rule violates the federal Religious Land Use and Institutionalized Persons Act.

Nigerian State Claims Sharia Legal System Is A Success

On Wednesday, the Nigerian paper This Day carried a long article on the success of the Sharia legal system that has been operating for seven years in the Nigerian state of Zamfara. Government officials claim the following achievements for the system: "Institutionalization of equity and justice in the conduct of government business, reduction of crime rate at all levels of society, greater respect for human rights and the entrenchment of such rights, greater awareness of Islamic teachings and practices by the citizens of the state, ... [and] the curtailing of alcoholism and prostitution which led to the closure of 2, 800 brothels and beer palours. Similarly, cinema houses were outlawed and were subsequently purchased from the owners and converted to offices or learning centres." Also fears that non-Muslims would disinvest did not materialize.

Christian Rock Band Loses Suit Against School That Canceled Concert

In a case decided Tuesday by a federal district judge in Toledo, Ohio, the court rejected First Amendment and Equal Protection claims by a Christian rock band whose planned concert at Rossford (Ohio) High School was cancelled out of concern that it might violate the Establishment Clause. In Golden v. Rossford Exempted Village School District, Case 3:05-cv-7052 (ND Ohio, July 31, 2006), the court held that "a student assembly, held during school hours, with only one musical performer approved by the Principal, bears the imprimatur of the School." Therefore, it said, the school was entitled to exercise editorial control over the performance. Cases involving requirements of viewpoint neutrality, the court said, do not apply where the state creates no forum for speech.

The court also rejected the band's claim that it was discriminated against because of its religious identity, in violation of the equal protection clause. The court said, "Where speech is government speech, the government is entitled to exercise control over its presentation... Defendants were entitled to discriminate against Plaintiffs because of their Christian religious identity precisely because the assembly audience might associate that identity with the School...." Moreover, the court said, avoiding a potential Establishment Clause violation is a compelling interest that overcomes any equal protection objection.

Here is the full text of Plaintiff's and Defendant's motions for summary judgment. Today's Toledo Blade covers the case, reporting that plaintiffs say they will take the case to the U.S. 6th Circuit Court of Appeals.

UPDATE: The full opinion is available online thanks to How Appealing.

Moderates Will Regain Control Of Kansas School Board

The Kansas City Star reports that in yesterday's Kansas State Board of Education primary election, it appears that two moderate Republicans who favor teaching a conventional science curriculum have defeated two current conservative board members who favor teaching of intelligent design. Five board seats were at issue. In the other three races, incumbents (2 conservative Republicans and one moderate Democrat) held onto their seats. These results assure that moderates will win a majority on the Board in the November general election. Last year by a 6-4 vote, the conservative majority on the Board adopted science standards that favor teaching approaches that are critical of evolution. Here are the official results from the Kansas Secretary of State's office.

RLUIPA Claim and Constitutionality Upheld By 9th Circuit

Yesterday in Guru Nanak Sikh Society of Yuba City v. County of Sutter, (9th Cir., Aug. 1, 2006), the U.S. 9th Circuit Court of Appeals ordered Sutter County, California to issue a Sikh temple a conditional use permit to permit the construction of a temple on a parcel of land zoned as "agricultural". The county had denied permits twice, under conditions that significantly lessened the prospect that the group would be able to find any acceptable location. The court found that the county thereby imposed a substantial burden on Guru Nanak's exercise of religion in violation of RLUIPA. The Court also held that RLUIPA's religious land use provisions are a constitutional exercise of Congress' powers to enforce the 14th Amendment, saying "RLUIPA is a congruent and proportional response to free exercise violations because it targets only regulations that are susceptible, and have been shown, to violate individuals’ religious exercise." Today's Marysville-Yuba City Appeal Democrat covers the decision. [Thanks to Anthony Picarello via Religionlaw listserv for the information.]

Senate Passes Mt. Soledad Cross Bill Giving Title To U.S.

By unanimous consent on Tuesday, the U.S. Senate approved the bill-- previously passed by the House-- to transfer to federal control the land on which the Mount Soledad war memorial cross stands. Yesterday's San Diego Union-Tribune reports on the Senate's quick action, and says that President Bush is expected to sign the law. Under the bill, the Department of Defense will manage the monument and the private Mount Soledad Memorial Association will continue to maintain it. Federal courts have ordered the cross removed, finding that it violates California's constitution. Proponents argue that the federal government has greater leeway. And while a federal court has found the cross to be a violation of the California Constitution and a state court has held that it would be a violation of the California Constitution for San Diego to transfer the cross to the United States, this new bill has the United States take title without the city taking any action to transfer it. Last month, U.S. Supreme Court Justice Anthony Kennedy issued a stay of the lower federal court's order to remove the cross, pending final adjudication of pending appeals. [CORRECTED]

Former FLDS Member Sues Police Officers Allegedly Controlled By Church

In Salt Lake City, Utah federal court, Andrew Chatwin, a former member of the Fundamentalist Church of Jesus Christ of Latter Day Saints, has filed a civil rights suit against three police officers from the twin cities of Hildale, Utah- Colorado City, Arizona. Details of the suit were reported yesterday by the Associated Press. Chatwin built his home in Hildale in 1992, but when he left the FLDS church, he turned it over to his father. Chatwin then tried twice to move back, but was blocked by police or family members who said they were acting on orders from former church leader Warren Jeffs. Chatwin argues that the cities' governments are under control of the church. Property and homes in the cities have been the community property of the church's United Effort Plan Trust. Church elders assigned vacant lots to FLDS men who then built their homes on them, but were not given deeds. Church leaders have also traditionally ordered families in and out of homes based on their obedience to church tenets, which include the practice of polygamy. Chatwin wants the court to award him damages and the deed to his house.

ACLU, Fox News, and Religious Expression

There is an interesting video posted on YouTube that critiques coverage of the ACLU by Fox News' Bill O'Reilly. The video contrasts O'Reilly's statements criticizing the ACLU for supposedly opposing all religious expression on public property with O'Reilly's statements equally criticizing the ACLU for defending expression by Fred Phelps' Westboro Baptist Church group that is picketing veterans' funerals. The video is titled Fox News Forgets ACLU Story Contradicts Fox Falsehood. [Thanks to Allen Asch via Religionlaw listserv for the information.]

Lawyers Ask India's Supreme Court To Change Temple Rules

In India, the Indian Young Lawyers Association (IYLA) and a group of women lawyers have filed a petition in the Supreme Court asking for it to order the government of Kerala and the head priest Tantri of Sabari Mala temple to permit women to freely enter the shrine. United News of India reported on Sunday on the lawsuit that was triggered by a controversy after film actress Jayimala said she had entered the temple and touched the deity. (See prior posting.) The Supreme Court petition claims that current restrictions on women between the ages of 10-50 entering the temple violate Articles 14, 15, 25 and 51A (e) of India's Constitution.

Charges Dismissed Against Street Preacher In Kansas City

In Kansas City, Kansas, officials have decided to drop criminal trespass charges of against Michael Wheeler who was arrested for preaching about his Christian beliefs and praying on a public sidewalk near the University of Kansas Medical Center. After being issued a warning, Wheeler was ticketed and spent 6 hours in jail. An Alliance Defense Fund release discusses the case and links to a copy of Wheeler's motion in Kansas City Municipal Court to dismiss the charges against him on First Amendment grounds.

Christians In China Continue Battles With Authorities

A number of reports are coming out of China regarding restrictions on Christian worship. Last week, Christian Newswire reported that on July 25, four well-known House Church Leaders in Sichuan were formally sentenced to 2 years "re-education through Labor". Also a number of actions have been taken against house churches in Wendeng City, including the arrest of worshippers.

Today a Reuters report carried in the Washington Post says that 3,000 Christians demonstrated against police in Hangzhou as authorities moved to tear down their newly-built church that had been constructed without official approval. Two people who were involved in the construction were arrested. The church was located in an industrial suburb where a commercial center was to be built. A local official said that the Christian group had been offered another nearby piece of land for their use. Today's New York Sun also covers the clash between police and church members, and presents a good deal of background information.

Sharia Law In Indonesia

Today's New York Times reports at some length on the administration of Sharia law in the Indonesian province of Aceh, the first province to adopt Islamic law as its civil law. Special Sharia courts to impose punishment such as caning have been operating for a year in Aceh. Now some of the other provinces in Indonesia are beginning to look to Aceh as an example. This threatens to change the traditional rather liberal interpretation of Islam that has prevailed in Indonesia.

Meanwhile in Jakarta, two of the five candidates for governor have promised that they will oppose any Sharia based laws in the capial city if they win next year's election. Today's Jakarta Post says that the 3 other candidates for governor did not participate in the debate where the statements were made.

How Churches Can Stumble Into Political Contributions That Violate the Tax Code

On July 19, Americans United for Separation of Church and State wrote to IRS officials asking them to investigate the Calvary Temple Church in Kerrville, Texas. (AU Release). Texas Ethics Commission reports disclosed that the congregation donated $1,000 to the Kerr County Republican Party on May 12, 2005, and $250 in 2003 and 2004. Last Friday, BNA's Daily Report For Executives [subscription required] interviewed the church's pastor, Del Way, who said that he had not intended to support a Republican Party candidate when he paid for an advertisement for "Golf Classics", a golf tournament sponsored by the local Republican Party. He said that the church also sponsors other community events, and several parishioners asked him to sponsor the golf tournament. Church officials saw it as a way of giving the church visibility. The problem was not caught by the church's outside auditor because the check was made out to the tournament, not to the Republican party. Americans United Executive Director Barry Lynn told BNA: "If you know it's a Republican entity and the purpose of the tournament is to raise money to elect Republicans, how can you not know what the money is going for?" Pastor Wey has asked the Kerr County Republican Party to return the funds.

British Court Awards Damages to Permit Religious Observance

A British court has awarded damages to the family of a Muslim woman in a persistent vegetative state for home care instead of nursing home care so that she can be provided with the religious regimen that she would have wanted. Today's Telegraph reports that even though it costs 70% more, this award by the London High Court will permit her devout family to share daily prayers and reciting of the Koran with her without having to travel extensive distances to visit her.

Texas City Says It Has Too Many Churches

Stafford, Texas has 51 tax exempt churches and religious institutions in its seven square mile boundaries. With no property tax, the city depends on business fees and sale taxes for revenues that churches do not produce. Today's Los Angeles Times reports that the city is looking for ways to keep more churches out of its remaining 300 undeveloped acres. Most who attend churches in Stafford live in Houston and elsewhere outside the city. Until an ordinance was passed in 2003, there was virtually no review of applications to build churches. City Councilman Cecil Willis said that when he asked the last 15 churches that located in Stafford why they chose the location, they replied that they had prayed about it and God told them to located there.

Recent Law Review Articles

From SSRN:

• William A. Wildhack III, Navy Chaplains at the Crossroads: Navigating the Intersection of Free Speech, Free Exercise, Establishment, and Equal Protection , 51 Naval Law Review 217 (2005).
  
• Jamie Darin Prenkert & Julie Manning Magid, A Hobson's Choice Model for Religious Accommodation , 43 American Business Law Journal, No. 3 (2006).

From SmartCILP:

• William B. Ewald, The Protestant Revolutions and Western Law (Reviewing Harold J. Berman, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition), 22 Constitutional Commentary 181-196 (2005).
  
• Christopher B. Harwood, Evaluating the Supreme Court's Establishment Clause Jurisprudence In the Wake of Van Orden v. Perry and McCreary County v. ACLU, 71 Missouri Law Review 317-366 (2006).
  
• Paul Heaton, Does Religion Really Reduce Crime?, 49 Journal of Law & Economics 147-172 (2006).
  
• Thomas M. Messner, Can Parachurch Organizations Hire and Fire On the Basis of Religion Without Violating Title VII?, 17 University of Florida Journal of Law & Public Policy 63-106 (2006).
  
• Elijah L. Milne, Blaine Amendments and Polygamy Laws: The Constitutionality of Anti-Polygamy Laws Targeting Religion, 28 Western New England Law Review 257-292 (2006).
  
• Daniel F. Piar, Majority Rights, Minority Freedoms: Protestant Culture, Personal Autonomy, and Civil Liberties In Nineteenth Century America. 14 William & Mary Bill of Rights Journal 987-1022 (2006).

The Spring 2006 issue of the Journal of Church and State has recently been published.

Prisoner Free Exercise Decisions

In Scible v. Miller, 2006 U.S. Dist. LEXIS 51002 (ND WV, July 25, 2006), a West Virginia federal court rejected a Rastafarian prisoner's complaint that prison grooming policies requiring hem to cut his hair violated his rights to free exercise of religion.

In Davis v. Basting, 2006 U.S. Dist. LEXIS 50787 (WD KY, July 19, 2006), a Kentucky federal district court permitted a prisoner to move ahead with his claims that he should be permitted to receive a Halal diet and attend religious services and his claims of retaliation against him because of his religion.

Debate In Evangelical Movement Over Political Ties

A front-page New York Times article today profiles Rev. Gregory A. Boyd who leads a 4000-member megachurch in suburban St. Paul, Minnesota. Boyd has created a stir among his members and others by urging the church to get out of politics, stop moralizing on sexual issues, stop claiming he United States is a "Christian nation" and stop glorifying U.S. military actions. The Times says that this is "an example of the internal debates now going on in some evangelical colleges, magazines and churches. A common concern is that the Christian message is being compromised by the tendency to tie evangelical Christianity to the Republican Party and American nationalism, especially through the war in Iraq."

Chicago Area Church Challenges Zoning Exclusions

Waukegan, Illinois officials, apparently as part of an urban revitalization effort, have begun to enforce city zoning laws that prohibit places of worship and religious organizations in areas zoned for business. Last Monday, God's Hand Extended Mercy Mission filed suit against the city in federal court seeking a declaration that this exclusion of religious groups violates the Constitution's free exercise and equal protection clauses. Suburban Chicago News reports that on Wednesday attorneys for both sides agreed to discuss other possible sites for the Mission that has operated in its current location for at least 18 years. The court is expected to issue an order suspending penalties against the Mission for 30 days while negotiations are going on, even though the city has already issued a formal order requiring the Mission to relocate by July 21.

UPDATE: Here is a copy of the court's order prohibiting enforcement of the zoning ordinance for 30 days, from Alliance Defense Fund.

Religious Liberty In Asia, Europe Surveyed; Turkey Revises Teachers' Training

Zenit continues to publish excerpts from the report by Aid to the Church In Need on religious freedom around the world. The latest installments cover Asia (1, 2, 3) and Europe (1, 2). (Also see prior postings 1, 2).

The complexities in parts of Europe are illustrated by a story out of Turkey earlier this week reported by AKI. Turkey's secular Higher Board of Education (YOK), which previously moved the training of public school religious teachers from the theology to education departments of universities, has now announced plans for curriculum revision. University programs training teachers to offer courses in religion in Turkey's primary schools will focus less on Islam. A number of courses on Islam have been removed and the time spent on Arabic language instruction has been reduced. In their place, required courses in philosophy, sociology, music, computers, Christianity and missionary activities have been added. Turkey's union of teachers has strongly criticized the changes.

Anti-Conversion Laws In India

Anti-conversion laws are not new in various states in India. (See prior posting.) But recently they have again captured the attention particularly of Christians around the world. For a while, Indian states seemed to be moving to reject or repeal these laws (see prior postings 1, 2 ). But last week, the Madhya Pradesh Legislative Assembly amended its Freedom of Religion Act of 1968 that prevents religious conversions by force or inducement. The new law requires all parties involved in a proposed conversion to inform a magistrate one month in advance. The conversion will be permitted only if the magistrate, after investigation, is satisfied that the conversion is not under duress or by deceit.(AsiaNews.it; India News). London's Sunday Times today personalizes the impact of the new law, focusing on Christian missionaries who have been working with Dalits (untouchables) who feel that their traditional Hindu religion has treated them unfairly. It suggests that at most the problem is some missionaries who tell Indians that God will heal their illnesses. The archbishop of Bhopal seems to be one of the few Christian authorities who is not upset by the new law. (Inida eNews.) [REVISED]

Members of the U.S. Congress have also begun to take notice. On July 21, the Congressional Human Rights Caucus held a briefing on Anti-Conversion Legislation in India. One of the presenters (full text) was the The Becket Fund's Angela Wu.

Free Exercise Challenge Planned In Ban On Feeding Homeless In Parks

According to Reuters yesterday, the ACLU of Florida may challenge on behalf of religious organizations a new Orlando ordinance that prohibits the regular feeding of homeless people in downtown parks. Passed earlier this week, the new law is attempting to protect an area of downtown that is undergoing renewal with the construction of condos, office buildings and university campus buildings. The city, however, has set aside other nearby space for food programs. Howard Simon, director of the Florida ACLU said that the new law interferes with religious groups' fulfilling their mission of feeding the homeless. Before filing suit, the ACLU is organizing a coalition of churches to attempt to negotiate a settlement with the city.

Times Tells Of Incidents Behind Delaware School District Lawsuit

Earlier this month, Religion Clause reported on the continuing controversy in the Indian River, Delaware School District over school prayer and the promotion of Christianity in the school system. (See prior posting.) Today’s New York Times carries an excellent article on the exact events that led the Dobrich family—which has now moved out of the district—to file suit in 2004. At Samantha Dobrich’s high school graduation, a minister's prayer proclaimed Jesus as the only way to truth. Samantha's mother, Mona Dobrich, then asked the school board to consider more inclusive prayers for graduation. That led to letters to the editors and school board meetings attended by hundreds carrying signs praising Jesus. A radio talk show host said that people were asking the Dobrich's to "Stop interfering with our traditions, stop interfering with our faith and leave our country the way we knew it to be." Dobrich’s son, Alex, was ridiculed for wearing a yarmulke in school. A classmate drew a picture of a pathway to heaven for everyone except "Alex the Jew". At a school board meeting, one speaker from the community said, "If you want people to stop calling [Alex] 'Jew boy', you tell him to give his heart to Jesus."

Ohio Issues New, Less Onerous, Draft Of Charity Reporting Rules

After input from many charitable organizations, Ohio’s Attorney General Jim Petro announced the filing of a second draft of proposed rules for charitable organizations that back off of many of the provisions that would have pressed larger charities to adopt specific "best practices" provisions that were in the Attorney General’s earlier proposal. (See prior posting.) The new draft would create a 9-member Charitable Advisory Council to recommend to the Attorney General model policies, training and education programs related to the fiduciary responsibilities of Ohio’s charities. As to fiduciary standards, the new draft merely calls for the collection of additional information in charities’ annual reports to the Attorney General. That additional information relates to compensation, conflicts of interest and loans to executives. Also additional data on billing and debt collection policies by charitable hospitals and nursing homes would be called for. Finally, charities would be permitted to file their IRS Form 990 instead of the new report called for the Ohio’s rules. However, the Attorney General suggested that charities filing Ohio’s form instead of their 990 "will find that they improve public and donor confidence." [Thanks to Ohio Jewish Communities Friday Report for the information.]

$36M Charitable Trust Not Available To Diocese Creditors In Bankruptcy

In In re Roman Catholic Archbishop of Portland in Oregon, (Bkrptcy. Ct. D. OR, July 20, 2006), an Oregon Bankruptcy judge held that the Diocese’ Perpetual Endowment Fund is a valid charitable trust and is not part of the assets that can be reached by Diocese creditors in its bankruptcy proceeding. The $36 million fund religious, educational and charitable programs, as well as operating expenses of the Diocese Chancery Office. Yesterday’s Portland Catholic Sentinel carried an article about the court decision.

Courts Rule On Employment Claims Against Churches

Two decisions involving the appropriateness of courts adjudicating employment claims against churches have been handed down this week.

In Redhead v. Conference of Seventh Day Adventists, 2006 U.S. Dist. LEXIS 51135 (ED NY, July 26, 2006), a New York federal district court held that the "ministerial exception" to Title VII employment discrimination claims does not apply to a teacher in a Seventh Day Adventist elementary school whose duties were primarily secular. The teacher's only religious functions were one hour of Bible instruction per day and attending religious services with students once per year.

A Texas state court of appeals has granted a motion for a rehearing and issued a new opinion in Patton v. Jones, (Tex. 3d Dist. Ct. App., July 28, 2006). In its earlier decision, the court held that the Free Exercise clause prohibited it from proceeding in connection with alleged defamatory communications made by a Church as part of its decision to end the employment of its Director of Youth Ministries. However, the court permitted the Director to proceed with defamation claims that arose out of statements made about him after the Church's decision on his dismissal was final. The revised opinion issued this week also dismisses the claims growing out of the post-termination statements.

China Denies Falun Gong Persecution Stories

Earlier this week, according to Thursday's Shanghai Daily, the Chinese embassy in Canada issued a statement denying allegations that China was killing and harvesting organs for transplant from Falun Gong practitioners. (See prior posting). The Chinese said that an independent investigation by journalists and diplomats, including U.S. embassy personnel, had proven the allegations to be false.

The embassy’s statement said: "Falun Gong is an anti-science, anti-humanity and anti-society evil cult which has been banned in China in accordance with law. It uses religion … as camouflage to brainwash and control the practitioners. It preaches that human can, through psychological meditation, from invisible magic wheels inside their bodies, cure their illness without medical treatment. It spreads Dooms Day theory, [and] boasts that Li Hongzhi, founder of Falun Gong, is the most powerful God …."

Orthodox Church Opposes Liberalization Of Ukraine's Religion Law

The Union of Councils For Jews in the Former Soviet Union posted a news story today reporting that the usually feuding Kiev and Moscow Patriarchates of the Russian Orthodox Church in the Ukraine are at least temporarily united to oppose liberalization of Ukraine's law on religious registration. Currently a religious organization needs at least 10 members to obtain registration. A proposal would reduce this to 3 members. both branches of the Orthodox church also want their faith classified as "traditional" and therefore entitled to special governmental treatment.

Igumen Evstraty of the Kiev Patriarchate said that the country's current law is so liberal that: "[I]t's enough to gather ten people and announce whatever you want-even that they want to worship Winnie the Pooh-and they can't be denied registration." A spokesman for the Moscow Patriarchate even called for "non-traditional" faiths to be investigated to determine "whether they cut the throats of babies or exert pressure on the psyches of people." However, a government Department of Religious Affairs official said that every religion has the right to exist and that registration requirements should be the same for all groups.

9th Circuit Hears Arguments In High School Christian Bible Club Case

There have been a number of cases around the country involving attempts by Christian groups on college campuses to be recognized even though they exclude non-Christians from formal membership. Yesterday, according to the Seattle Post-Intelligencer, the U.S. Ninth Circuit Court of Appeals in Seattle heard arguments in a similar case involving a high school Bible group. At Kentridge High School near Seattle, for official membership and voting rights in the "Truth and Bible" club, students are required to sign a statement affirming "the Bible to be the inspired, the only infallible, authoritative Word of God." Kentridge's Associated Student Body, applying the school's non-discrimination policy, refused to recognize the group, which means that, while it can meet on campus, it cannot engage in fundraising there, be featured in the yearbook or advertise as broadly as recognized groups. Represented by the Alliance Defense Fund, the student group argued that its rights to free speech, free association and equal access are being violated.

Belarus Dispute Over Taking Church For Economic Development

It is not only in the United States that courts are dealing with issue of municipalities using eminent domain to take private property, including church property, for economic development. Forum18 reports on a similar issue in Belarus. On July 21, the Minsk City Economic Court ruled that New Life Church must sell - at a low price - a cow shed that it remodeled to use as a house of worship. Officials say that the city of Minsk's Development Plan requires that the building be demolished. New Life has been unable to obtain official registration of its building under the country's Religion Law because itneverr got formal approval to convert the cow shed into a church.

When Do Online Security Precautions Violate First Amendment?

A column in yesterday's St. Petersburg (FL) Times discusses a pending federal lawsuit against the Hillsborough County School Board that raises interesting First Amendment questions about e-mail campaigns by religious, and other, organizations. During a dispute last year over religious holidays in the public schools, the Florida Family Association set up a Web site for users to e-mail the School Board in favor of keeping Christmas in the schools. When numerous e-mails started arriving from the same Internet address, the School Board set its computers to reject them, fearing a possible automated e-mail attack on its server. It took a day and a half to determine the e-mails were legitimate and to remove the block. However, FFA's attorney, Don Conwell, argues that the number of e-mails being received were too small to cause a legitimate fear of a denial-of-use attack. He says that blocking communication from one particular group of citizens, based on who they are or on the content of their message, violates the rights of free speech, assembly and petition. Once the government accepts e-mail from some citizens, he says, then it cannot pick and choose. It cannot say, "You can e-mail us only if you don't belong to Group X."

Nun Loses In Seeking Canadian Refuge Under Legal Technicality

In Canada, a Nigerian nun who claims that she will suffer religious persecution if she is returned home has come up with an interesting legal maneuver to obtain refugee status. Yesterday's Canadian Press reports that Sister Nkemhurunaya Juliana Eligwe has been helping people of the Sandy Bay Ojibway First Nation, on the shore of Lake Manitoba, for more than two years. After immigration officials rejected her asylum request, the Ojibways made her an honorary member of their band. Then she claimed that she is protected under Canada's Immigration and Refugee Protection Act that provides that "every person registered as an Indian under the Indian Act has the right to enter into and remain in Canada." However, on July 19, Federal Court Judge Sean Harrington refused to block her deportation. While his decision rested on various procedural issues, he wrote: "The proposition put forward, if brought to its extreme, is that each and every band . . . has the power to usurp the discretion of the minister of citizenship and immigration by accepting non-residents as band members and thereby granting them permanent resident status." The case is Sandy Bay Ojibway First Nation v. Minister of Citizenship and Immigration, 2006 FC 903 (Fed. Ct., July 19, 2006). The decision may be appealed.

Georgia Supreme Court OKs Judicial Determination Of Church Membership List

In Bolden v. Barton, (Ga. Sup. Ct., July 6,2006), the Georgia Supreme Court held that in a property dispute among members of a church that governed itself congregationally, the trial court acted properly in ordering an election to decide which of two factions should control church property. The fact that the court had to determine which individuals were members eligible to vote in order to decide which faction represented a majority of the church's membership did not involve the court in deciding matters of religious doctrine.

In Malaysia: A Step Forward For Women and Backward For Free Speech

In Malaysia, a coalition of several non-governmental organizations called "Article 11", has been actively organizing forums to discuss freedom of religion. The discussions have created such tensions that the government has asked the group to end the forums and has told the media to stop printing articles and broadcasting about religious issues. The New Straits Times yesterday reported that Prime Minister Datuk Seri Abdullah Ahmad Badawi said that the sensationalization of religious issues would bring about "unwanted situations".

Meanwhile, Malaysia's National Fatwa Council has ruled that women may be appointed by State religious authorities as Syariah judges . However, according to the New Straits Times, the women judges will not be allowed to preside over hudud and qisas cases, i.e. those that deal with offences and punishments that are interpreted by Muslim juristic scholars to be derived from the Quran and the Sunnah. In Malaysia these offenses are found in the Syariah Criminal Code Enactment.

Prisoner Free Exercise Cases Abound

In Hill v. Snyder, 2006 U.S. Dist. LEXIS 50717 (SD IL, July 25, 2006), a state prisoner who adheres to the Hebrew Israelite faith, claimed various infringements of his free exercise rights. An Illinois federal trial court permitted him to proceed with claims relating to the provision of vegan meals, the contents of the food he is given, the discontinuance of his vegan meals, and the requirement that he provide written verification of his religious affiliation from an outside clergy member. However, the court found he had no right to variety in his meals, to trade food items with other inmates, nor to extra time to eat.

Greene v. Solano County Jail, 2006 U.S. Dist. LEXIS 50380 (ED CA, July 24, 2006), involved a challenge to the policy at Solano's Claybank facility that precluded maximum security inmates from attending group religious services. A California federal district court agreed with prison authorities that security concerns adequately justified the policy and rejected plaintiff's claims based on the First Amendment, RLUIPA, the Equal Protection Clause and the Eighth Amendment.

In Ha'min v. Montgomery County Sheriffs, 2006 U.S. Dist. LEXIS 50448 (MD TN, July 21, 2006), a Tennessee federal district court judge dismissed the First Amendment claims of a Muslim prisoner who challenged a Tennessee jail's failure to provide regular Friday Muslim religious services and its failure to have copies of the Quran in the jail library while the library did have donated copies of the Bible.
UPDATE: Here is the earlier magistrate's recommendation in the case, 2006 U.S. Dist. LEXIS 73223.

Johnson v. Rees, 2006 U.S. Dist. LEXIS 50556 (ED KY, July 20, 2006) involved rejection by a Kentucky federal district court of a somewhat unusual prisoner Free Exercise and RLUIPA claim. Inmate Johnny Johnson alleged that he is a Jehovah's Witness whose religious faith requires him to "witness" and to distribute religious literature to others. Prison rules permit outside organizations, including the Jehovah's Witnesses, to donate religious literature to the prison's chapel where other inmates are free to take extra copies. But Johnson is not allowed to take that literature and distribute it elsewhere directly to other inmates. The court said that since Johnson can distribute the literature inside the chapel library, he is not totally prevented from engaging in the conduct his faith requires. Only time and place are circumscribed.

Dissent In Washington DOMA Case Argues Establishment Clause

Yesterday, in Andersen v. King County (WA. Sup. Ct., July 26, 2006), the Washington state Supreme Court in a 5-4 decision with six different opinions upheld its Defense of Marriage Act against challenges under various provisions of the state constitution. (New York Times coverage.) The dissenting opinion of Justice Bobb J. Bridge contains an interesting anti-establishment argument. Justice Bridge argues that DOMA is "clearly an unconstitutional foray into state-sanctioned religious belief":

What we ought not to address is marriage as the sacrament or religious rite--an area into which the State is not entitled to intrude at all and which is governed by articles of faith.... As succinctly put by amici ...: "To ban gay civil marriage because some, but not all, religions disfavor it, reflects an impermissible State religious establishment."... After all, we permit civil divorce though many religions prohibit it--why such fierce protection of marriage at its beginning but not its end?...

To many, same-sex relationships and same-sex marriages are contrary to religious teachings. But none of the plaintiffs in the cases before us today seek acceptance of same-sex marriage within a particular religious community. They seek access to civil marriage. Some churches and religious organizations may refuse to solemnize same-sex unions, and that is their right in the free exercise of religion under our constitution. A religious or moral objection to same-sex marriage is not, however, a legitimate state interest that can support the DOMA....

[R]eligious restrictions on the institution of marriage have never governed civil marriage in this country, nor would it be constitutionally permissible for them to do so. For example, historically many religions have strictly forbidden marriage outside of the denomination, but these churches could not prevent interdenominational civil marriages because "marriage was [ultimately] a state matter, not subject to . . . religious restrictions."... This court cannot endorse the use of state law to impose religious sensibilities or religiously-based moral codes on others' most intimate life decisions.... The DOMA reflects a religious viewpoint; religious doctrine should not govern state regulation of civil marriage.

House Members With Opposing Views Have Dinner Over Church-State Issues

The Forward earlier this week reported on an unlikely group of House of Representatives members who have formed a discussion group to focus on church-state issues. The members are Democrats Steve Israel (NY), Susan Davis (CA) and Henry Waxman (CA). The Republicans in the dinner group are Todd Aiken (MO), John Hostettler (IN), and Walter Jones (NC). The diversity of the members is illustrated by the ratings they received in 2005 from the Family Research Council on whether their voting records reflect "the Judeo-Christian worldview". Waxman and Davis got a rating of 0 and Israel had a 8. Aiken, Hostettler and Jones each had a rating of 100.

Rehearing Denied; Supplemental Opinion Issued In Notre Dame Funding Case

Yesterday, the U.S. 7th Circuit Court of Appeals denied an en banc rehearing in Laskowski v. Spellings, (7th Cir., July 26, 2006), a case challenging on Establishment Clause grounds the receipt of federal funds by Notre Dame University for use by it to fund a Catholic teacher training program. In April, a 3-judge panel held that it was possible that the lower court could order Notre Dame to repay the $500,000 grant to the federal Treasury. Along with yesterday's denial of a rehearing, the original panel wrote a supplementary opinion clarifying that whether Notre Dame had to make restitution of the funds depended on whether or not it had reason to know that the grant it was receiving was illegal. The opinion pointed out that Congress cannot make grants to religious institutions without imposing conditions to assure that the funds will be used only for secular purposes. It continued: "Whether appropriate conditions were imposed by the Secretary of Education and were properly observed or implemented by Notre Dame are the issues on the merits that the district court will be resolving in the first instance on remand." The Fort Wayne News-Sentinel reports on the decision.

Greek Government To Build Athens' First Mosque

After 30 years of negotiations and failed attempts, the government of Greece is poised to approve building of Athens' first mosque, and government funds will be used for its construction. Kathimerini reports that while 200,000 Muslims live in Athens, there is still no official place of worship for them. The Inner Cabinet on Tuesday approved plans by Public Works and Environment Minister Giorgos Souflias to do something about this. In April, 10,000 people had petitioned the Education and Religion Ministry asking for the project to move forward.