New Debate Over Same-Sex Marriage In Canada

In Canada, reports surfaced yesterday that the country's Conservative government was considering a new Defense of Religions Act that would protect public officials, such as Justices of the Peace, who refuse to perform same-sex marriages, and would protect the rights of religious leaders and others to criticize homosexual behavior or refuse to do business with gay-rights organizations. (Globe and Mail). The legislation is seen as an alternative if the government loses its bid to try to repeal the same-sex marriage law passed by Parliament last year. Prime Minister Stephen Harper denied reports that new legislation was being drafted, but speculation continues. (Halifax Chronicle Herald). Today, legal and provincial authorities said that any such legislation would be struck down as a violation of the Charter of Rights and as an improper intrusion into provincial affairs. (Globe and Mail).

Parent Attacks Harry Potter Books In Georgia Schools

In a suburban Atlanta school district, a mother of four on Tuesday argued to a hearing examiner that the Gwinnett County schools should ban Harry Potter books. The Associated Press reports that parent Victoria Sweeny argued that the Harry Potter series is an "evil" attempt to indoctrinate children in the Wicca religion. She says that they are particularly harmful to children who cannot distinguish fantasy from reality.

Justice Department Investigating School's Holiday Excusal Policy

The Bakersfield Californian today reports that the U.S. Justice Department's Civil Rights Division is questioning the religious holiday excusal policy of the Bakersfield (CA) City School District. To avoid an unexcused absence, a parent or guardian must provide advance written notice to the principal, and the child must complete the minimum school day, which is almost as long as the regular school day. Students with three unexcused absences are considered truant. The investigation began at the request of the Becket Fund after the school district refused to excuse two children to go to noon Ash Wednesday services last March. In its release on the case, the Becket Fund points out that absences for many secular reasons are excused. The Becket fund is also representing a Jewish family who has a similar complaint about refusal to excuse children for religious observances against the Buttonwillow (CA) Union School District.

En Banc Review Sought In California Library Use Case

Yesterday, attorneys with the Alliance Defense Fund filed a Petition for Rehearing En Banc seeking review by the full U.S. 9th Circuit Court of Appeals' of the recent 3-judge decision in Faith Center Church Evangelistic Ministries v. Glover. (ADF Release.) The decision of the 3-judge panel permitted a California public library to make its meeting rooms available for "meetings, programs, or activities of educational, cultural or community interest", while excluding their use for "religious services". (See prior posting.)

Kentucky Prohibition On Funeral Protests Struck Down

The Associated Press last week reported that a Kentucky federal district court has temporarily enjoined the enforcement of Kentucky's law barring protests within 300 feet of military funerals and memorial services. The law was aimed at members of the Westboro Baptist Church in Topeka, Kansas who go around the country carrying signs at military funerals claiming that soldiers' deaths are punishment from God for the U.S. tolerating homosexuality. The court in McQueary v. Stumbo (ED KY, Sept. 26, 2006) found Kentucky's law too broad, saying:

The provisions at issue in this case burden substantially more speech than is necessary to prevent interferences with a funeral or to protect funeral attendees from unwanted, obtrusive communications that are otherwise impractical to avoid. Section 5(1)(b) prohibits all congregating, picketing, patrolling, demonstrating or entering on property within 300 feet of a funeral whether such activities interfere with the funeral or not and whether such activities are authorized by funeral attendees or not. It prohibits such activity whether the persons involved in the activities are visible to funeral participants or not and whether they are making any sound that funeral participants can hear or not. Thus, in addition to prohibiting intrusive activities, Section 5(1)(b), prohibits activity that would not interfere with a funeral and prohibits communications that are neither necessarily unwanted nor so obtrusive that they cannot be avoided by the funeral attendees....

The 300-foot zone would encompass public sidewalks and streets and would restrict private property owners' speech on their own property. The zone is large enough that it would restrict communications intended for the general public on a matter completely unrelated to the funeral as well as messages targeted at funeral participants.

EEOC Sues Dentist Charging He Imposed Scientology On Employee

The U.S. Equal Employment Opportunity Commission has filed suit against a dentist in Plano, Texas, according to a report in today's Dallas Morning News. The suit claims that Jessica Uretsky, a receptionist who worked for Dr. K. Mike Dossett, was fired when she refused to adopt business practices based on Scientology. The EEOC alleges that Dossett blamed business slowdowns on a lack of "positive energy" among employees. Dossett denies the charges, says that Uretsky, who had worked for him for just over one month, was fired for poor job performance. Apparently Dossett, who was once a member of the Church of Scientology, is no longer a member, but does use Ron Hubbard's system of business management and organizational techniques.

Court Says St. Louis U. Can Get Urban Renewal Funds Despite Its Religious Origins

Yesterday in a 2-1 decision in St. Louis University v. Masonic Temple Association of St. Louis, (MO Ct. App., Oct. 3, 2006), a Missouri appellate court majority said that the city of St. Louis and the state of Missouri could finance development of a 13,000 seat sports arena by St. Louis University using urban renewal funds. The court rejected claims that the financing violates the Establishment Clause of the U.S. constitution and provisions in Missouri's constitution, Art. IX, Sec. 8, that prohibit the use of public funds to aid a university controlled by a religious creed. The majority opinion interpreted the Missouri constitutional provisions "to prohibit State aid only when an institution is controlled in such a way that religious authorities propagate and advance their religion through school operation." It held that while St. Louis University has a Jesuit tradition, it is controlled and operated by an independent, lay board of trustees. However, instead of affirming the trial court's summary judgment decision in favor of the University, the court transferred the case to the Missouri Supreme Court because of the general interest and importance of the issues involved.

Judge Mooney, concurring in the transfer of the case to the state's Supreme Court, wrote that he would not affirm the trial court's summary judgment. He believed that a trial was necessary to determine whether St. Louis University, despite its governing documents, is no longer in fact controlled by the Catholic creed.

Denver Pre-School Tuition Plan Opposed On Church-State Grounds

A proposal will appear on the ballot in Denver, Colorado this November to increase the city's sales tax in order to fund tuition credits for families to enroll their 4-year-olds in private pre-school programs. The Rocky Mountain News reported yesterday that the Mountain States Regional Office of the Anti-Defamation League has announced its opposition to the ballot measure, saying it violates principles of separation of church and state. ADL Regional Director Bruce DeBoskey said,"Although the goals of the Denver preschool plan are laudable, the proposed tax increase would raise serious church/state separation issues because it permits government funds to go to religious institutions to teach religion, without any restrictions or guidelines whatsoever on the use of those funds."

Preacher Sues Kentucky University For Access To Campus

The Lexington (KY) Herald Leader yesterday reported that an evangelical preacher from Symsonia, Kentucky last week filed a federal lawsuit against Murray State University because it is requiring him to have sponsorship of a student organization before he can preach at the University's Curris Center for Student Life. Brother Jim Gilles, represented by the Alliance Defense Fund (press release), says that the University is arbitrarily enforcing its speaker policy, after permitting him in the past to speak anywhere on campus. The complaint (full text) says that the university's policy operates as a prior restraint on speech and religious activity and denies Gilles equal protection of the laws. Gilles, who says he found God in 1981 while attending a Van Halen concert, speaks at universities and state capitals across the country.

Wisconsin State Employee Charity Campaign Cannot Exclude Religious Charities

In Association of Faith-Based Organizations v. Bablitch, (WD WI, Sept. 29, 2006), a Wisconsin federal district court held that it is unconstitutional for the state to exclude a religious charitable organization from participation in the Wisconsin State Employees Combined Campaign solely because the charity discriminates on the basis of religion in choosing its governing board and employees. In reaching the conclusion that the First Amendment rights of religious charitable organizations are infringed by the state's policy, the court rejected the state's arguments that the exclusion furthered a state policy against religious discrimination and that the presence of religious groups would cause controversy and reduce overall participation in the charitable campaign.

Yesterday's Milwaukee Journal Sentinel says that the state will not appeal the ruling. It also points out that to qualify for inclusion in the Combined Campaign, religious charities will still have to demonstrate that they do not discriminate in the delivery of services.

Turkey's Justice Minister and President Fear Islamism

In Turkey last week end, Justice Minister Cemil Çiçek complained, in a television interview, that the country's Religious Affairs Directorate is doing an inadequate job in providing religious education to young people. This has led people to accept misinformation about Islam as being accurate teachings, he said according to a report in Monday's Turkish Daily News. Meanwhile, on Sunday, Turkey's President Ahmet Necdet Sezer, in his last address to Parliament before he steps down next May, warned that the country faces a threat from rising Islamism. Another report in Monday's Turkish Daily News quotes Sezer, a former chief judge of the Constitutional Court, as saying: "The principle of secularism is the core of all the values that constitute the Republic of Turkey."

InterVarsity Christian Fellowship Sues University of Wisconsin For Recognition

Yesterday, the Alliance Defense Fund announced that it has filed a federal lawsuit on behalf of the University of Wisconsin-Superior's student InterVarsity Christian Fellowship. The University refused to grant recognition to the student group because it limits its leadership positions to Christians, in violation of the University's anti-discrimination policy. The complaint (full text) alleges that this violates the group's First Amendment rights to freedom of speech, assembly and religion, and denies the group equal protection of the laws. Reporting on the lawsuit, today's Badger Herald quotes university officials as saying that this case, as well as ones involving non-recognition of the Knights of Columbus and of the Roman Catholic Foundation on the UW-Madison campus, have more to do with concern over stricter allocation of student fees than with religion.

Student's Religious Speech Right Upheld, But No Relief Granted

In an interesting case decided two weeks ago by a Michigan federal district court, parents of a fifth-grade student in Saginaw, Michigan succeeded in proving that their son's religious speech was improperly limited by public school officials, but a combination of qualified immunity and mootness (since the student was no longer enrolled at the school) precluded plaintiffs from either recovering damages or obtaining injunctive and declaratory relief. In Curry v. School District of Saginaw, (ED MI, Sept. 18, 2006), students were required to take part in a "Classroom City Project", in which they constructed a fictitious city in the gymnasium from cardboard refrigerator boxes, elected city officials, constructed storefronts and made products to sell during a three-day event.

Student Joel Curry, largely inspired by his parents' suggestions, created candy cane ornaments from pipe cleaner as his product. He attached a card to the ornaments giving them a religious interpretation. While Joel received an "A" for his performance (a grade that the court described as a generous one for his parents' efforts), the school principal told Joel that he could not sell his product with the religious message attached. The court decided that this limitation improperly restricted the student's rights of expression (though not his free exercise rights). In reaching this conclusion, the court wrote:

The lessons Classroom City was designed to teach presumably included economics, marketing, civics, and entrepreneurialism. Standing alone, the candy canes with a religious card attached met those ostensible goals.... In fact, a religious theme might be viewed as filling a market niche. Joel would not be the first to discover the commercial allure that religion has brought to capitalism. It appears that he learned that lesson well by ascribing a religious -- albeit unoriginal and inaccurate -- aura to an historically secular object to enhance its marketability.

Churches, Politics, and Voters' Guides

As Agape Press reports on two recent studies showing that only 6% of clergy and 11% of lay church members said they feel their own church is "very involved in local politics or political issues," the Decatur, Alabama Daily News reports on two alternative voters guides that will be distributed in the state to church members. One guide is published by Christian Action Alabama. It focuses on candidates' views on specific legislative issues. A more recent entry is a guide by Redeem the Vote that asks candidates more general questions about the church they attend, their favorite Bible verse, how they will publicly acknowledge their faith, and what role their faith will pay in formulating public policy.

New Jersey Supreme Court Will Hear RLUIPA Appeal

Last week, the New Jersey Supreme Court agreed to hear an appeal in a RLUIPA case brought by St. Joseph Korean Catholic Church against the borough of Rockleigh. A state court of appeals upheld the town's refusal to grant a zoning variance to the church. These developments were reported Saturday by North Jersey.com.

Cert. Denied In Challenge To California School's History Unit On Islam

On Monday, the U.S. Supreme Court denied certiorari in Elkund v. Byron Union School District, No. 05-1539, a case challenging a California elementary school's role playing activities that were designed to acquaint students with Islam. (See prior posting.) In reporting on the denial of cert., the Associated Press noted that the case involved a challenge by school parents to a world history unit titled "The Roots of Islam and the Empire" that had students reading pages from the Koran and studying Islam's Five Pillars of Faith. The 9th circuit had agreed that the unit did not create Establishment Clause problems.

Maryland Prison Policy On Religious Holidays Questioned

The Associated Press reported Monday that advocates for prisoners are questioning Maryland's policy that guarantees prisoners only the right to observe one holy day per year while in prison. Some institutions permit two, but even that poses problems for Jewish inmates. Prisoners in Maryland also can gather twice each week for religious purposes-- once for worship and once for study. Prison officials say that they have 29 recognized religions. The Maryland Division of Corrections says it is looking into the complaints about limits on holiday observance.

Senate Passes Bill To Protect Tithing In Chapter 13 Bankruptcies

The Salt Lake Tribune reports that on Saturday morning, before it adjourned for the election break, the U.S. Senate passed a bill to amend the Bankruptcy Code to overrule a recent decision that held that in Chapter 13 bankruptcy proceedings, tithes to a church could not be paid until the debtors had repaid their other creditors. More specifically, the court held that above-medium income debtors in Chapter 13 cannot deduct charitable contributions from their payment plans. The Senate bill was sponsored by Senators Orin Hatch and Barack Obama. In a release on the bill, Sen. Hatch said: "As a rule, I do not like impromptu legislative responses to judicial decisions,” Hatch said. “But the religious practices and beliefs of individuals should not be subject to the whims of judicial interpretation. This bill ensures those who tithe can continue to live their faith while in bankruptcy." The House of Representatives has not yet acted on the bill.

Four Justices, Other Officials, At Sunday's Red Mass

Four of the U.S. Supreme Court's five Catholic justices attended the Red Mass on Sunday at the Roman Catholic Cathedral of St. Matthew in Washington. Today's New York Times reports that many other cabinet members and politicians were also in attendance at the service that marks the opening of the Supreme Court's term. Here is the full text of the homily delivered at the service by Washington Archbishop Donald W. Wuerl. In it, he said: "The assertion by some that the secular voice alone should speak to the ordering of society and its public policy, that it alone can speak to the needs of the human condition, is being increasingly challenged." Zenit points out that this was Wuerl's first Red Mass. It was co-celebrated by Archbishop Pietro Sambi, the apostolic nuncio to the United States.

Malawi Human Rights Commission Orders Buddha Statues Out Of Orphanage

Last week, the Malawi Human Rights Commission ordered a Buddhist orphanage funded from Taiwan to remove statues of Buddha from all its dormitories. The Commission said their presence could force children into accepting Buddhism. Malawi's Constitution (Chap. IV, Sec. 23)provides how children and orphans are to be treated. Spero News reported on these developments on Sunday. Also, Malawi's deputy information minister, John Bande, praised the Buddhist community for constructing the orphanage but asked officials at the to consider allowing children there to eat meat.

Compromise On Chaplains In Defense Appropriations Act

On Friday, Congress passed the FY 2007 Defense Appropriations Act before it adjourned for its election break. The bill had been held up over language on military chaplains. The House version would have assured chaplains that they could pray according to the dictates of their own conscience, except for narrow limitations compelled by military necessity. (See prior posting.) The Senate version did not contain this language. The Conference Committee eliminated completely from the bill any language about chaplains. However the Conference Committee Report included language directing the Air Force and the Navy to rescind recent policies that they had adopted, and requiring them to reinstate earlier policies:

The conferees direct that the Secretary of the Air Force rescind the policy and revised interim guidelines concerning the exercise of religion in the Air Force issued on February 9, 2006, and direct that the Secretary of the Air Force reinstate the policy that was set fort in Air Force directive 52-1 dated 1 July 1999. The conferees further direct that the Secretary of the Navy rescind Secretary of the Navy Instruction 1730.7C dated February 21, 2006, titled "Religious Ministry within the Department f the Navy" and direct that the Secretary of the Navy reinstate the policy that was set forth in the Secretary of the Navy Instruction 1730.7B dated October 12, 2000.

The regulations that Congress ordered rescinded had been explicit in calling on chaplains to offer non-sectarian prayers when officiating at military events other than religious services. The earlier versions that are to be reinstated are less explicit on this issue. (Background on Navy policy. Background on Air Force policy.)

This is merely a temporary solution, however, to the debate over the extent to which military chaplains should be permitted to offer explicitly sectarian prayers at service-wide ceremonies with interfaith audiences. Those on both sides claimed that the compromise was a temporary victory. Jay Sekulow of the American Center for Law and Justice said:

In a temporary victory, Congress rolled back those regulations that were causing the difficulty for the chaplains and reinstated earlier regulations that were more protective of the free exercise of religion. Congress also said that they will visit this issue fully in January when the new Congress returns. We anticipate major hearings on these issues.

On the other side, Mikey Weinstein, founder of the Military Religious Freedom Foundation said that keeping the House language out of the final bill was a victory.

Does Yom Kippur Ceremony Violate Los Angeles Law?

LA Voice.org on Friday raised the question of whether a pre-Yom Kippur ceremony practiced by some traditional Jews violates the Los Angeles Municipal Code. The ceremony of kaparot involves swinging a live chicken over one's head, while reciting a set prayer in order to symbolically rid oneself of one's sins. It is intended to imbue people with the feeling that their very lives are at stake as they begin the Yom Kippur prayers for repentance. After the ceremony, the chicken is slaughtered and donated for a needy family to eat for the pre-Yom Kippur meal (or an equivalent value is given to charity). Most traditional Jews today swing money to be donated to charity over their head instead of a live chicken, but some communities still practice the more traditional form of the ritual. Los Angeles Municipal Code Chap. V, Section 53.67 prohibits animal sacrifice, which is defined broadly as "the ... killing of any animal in any religious ... ritual ... wherein the animal has not been ... killed primarily for food purposes, regardless of whether all or any part of such animal is subsequently consumed."

"First Monday" Without Oral Arguments To Accommodate Yom Kippur

Tomorrow, the first Monday in October, is the traditional day for the U.S. Supreme Court to open its term. However, because tomorrow is also the Jewish holy day of Yom Kippur, the opening day will be without the presentation oral arguments, according to Law.com.

Some More Prisoner Free Exercise Cases

In Fabricius v. Maricopa County, 2006 U.S. Dist. LEXIS 67423 (D AZ, Sept. 14, 2006), an Arizona federal district court rejected a free exercise claim by a jail inmate who alleged that the fact that female guards could see him using the toilet and shower violates the principles of modesty required by his Catholic religion. It also rejected his Establishment Clause claim based on allegations of the jail's lengthy playing of music that advanced Judeo/Christian religious doctrines.

In Massingill v. Livingston, 2006 U.S. Dist. LEXIS 68249 (ED TX, Aug. 9, 2006), a Texas federal magistrate judge recommended rejection of free exercise and RLUIPA claims of a prisoner who was a member of the Israyl Identity faith. The prisoner challenged the application of the prison's grooming requirements to him, seeking to grow a beard and shoulder-length hair. He also wanted to be kept separate from inmates of other races, and to have his meals for Saturday delivered to him on Friday so that prison employees who serve him would not have to work for him on Saturday.

In Vega v. Lantz, 2006 U.S. Dist. LEXIS 69120 (D CT, Sept. 26, 2006), a Connecticut federal district court permitted claims by a Muslim prisoner to proceed against certain of the defendants. The plaintiff had charged denial of daily congregate prayer, of Jumah services when no Islamic chaplain is present, a lack of timely Ramadan prayers,, insufficient calories in the meals during Ramadan, inability to purchase Islamic items, no Halal meats, no inmate chaplains, denial of his request for circumcision, improper handling of the Quran, and discrimination.

In Hill v. Cruz, 2006 U.S. Dist. LEXIS 69094 (SD TX, Sept. 26, 2006), a Texas federal district court dismissed for lack of proof a Muslim prisoner's claim that processed American cheese containing pork enzymes is placed in non-pork food entrees at the prison.

In Jordan v. Carr, 2006 U.S. Dist. LEXIS 68753 (ND IA, Sept. 22, 2006), an Iowa federal district court rejected a jail inmate's claim that he should be allowed to attend both Christian and Muslim religious services.

In Jonas v. Schriro, 2006 U.S. Dist. LEXIS 69427 (D AZ, Sept. 25, 2006), an Arizona federal district court rejected First Amendment and RLUIPA claims by a Native American prisoner who complained that he was prohibited from engaging in pipe ceremonies, smudging, wearing of colored headbands, and using a sweat lodge.

Middle School Sued For Refusing To Let Student Read Bible

The Rutherford Institute announced on Friday that it has filed suit against a Prince George’s County, Maryland school challenging its vice-principal's refusal to permit a student to read a Bible in the cafeteria during the lunch period. The incident took place at Dwight D. Eisenhower Middle School. The suit argues that the refusal violates the constitution as well as the school system's own regulations.

Competing Guides Issued For Catholic Voters

The Catholic social justice group Catholics In Alliance for the Common Good last week published Voting for the Common Good: A Practical Guide for Conscientious Catholics. It is described as "an essential tool for Catholics who wish to vote their faith this November". The Washington Post on Saturday reported that the group hopes to distribute at least 1 million of the guides before the November elections. A competing voting guide issued this year by Catholic Answers, Voting Guide For Serious Catholics, says that there are "five issues involving non-negotiable moral values in current politics": abortion, euthanasia, embryonic stem cell research, human cloning and same-sex marriage. In contrast, the guide issued by Catholics In Alliance says that Catholic voters should take into account a broader range of issues. It lists 18 issues that are important to Catholics, including poverty, immigration, the environment, global arms trade, workers' rights, nuclear disarmament and genocide.

Reacting to the new voter guide issued by Catholics In Alliance, Catholic League president Bill Donohue is quoted by LifeSite News as saying: "[It] is a slick attempt to get the abortion albatross off the necks of Catholic Democrats, but it's a failed effort-the noose is still there."

Boston Islamic Society Can Go To Trial On Defamation and Conspiracy Claims

According to the Boston Herald, on Friday a state court judge in Massachusetts rejected First Amendment defenses and ruled that a suit by the Islamic Society of Boston could move ahead to trial. The Islamic Society has sued a group of media defendants, a pro-Israel group The David Project, and terrorism specialist Steven Emerson for conspiracy and defamation. The court rejected the defendants' motion to dismiss as protected speech their stories that linked mosque officials to Islamic extremism and terrorist groups. These statements deterred donors from contributing to the building of a planned mosque in Roxbury. (See prior posting.)

Court Holds RLUIPA Claims Covered By Four-Year Statute of Limitations

In Couch v. Jabe, 2006 U.S. Dist. LEXIS 68216 (WD VA, Sept. 22, 2006), in what is apparently a case of first impression, a federal district court in Virginia held that claims under the Religious Land Use and Institutionalized Persons Act are covered by the four year statute of limitations in 28 USC 1658. That section provides that "a civil action arising under an Act of Congress enacted after the date of the enactment of this section [December 1, 1990] may not be commenced later than 4 years after the cause of action accrues." In reaching this conclusion, the court relied on a 2004 U.S. Supreme Court decision interpreting Sec. 1658.

The Virginia district court's holding came in a case in which a Sunni Muslim prisoner alleged that for several years during Ramadan he was denied adequate food and nutrition and was denied the Eid Al Fitr meal and prayer service. The court found that a reasonable jury might conclude that receiving only 1000 daily calories would substantially pressure inmates to break their Ramadan fast. It also permitted plaintiff to move ahead with his claims that Eid Al Fitr meals were served and the feast's prayer services were held at the wrong times to meet religious requirements.

Montana Church Loses Challenge To State Campaign Laws

Earlier this week, a Montana federal district court rejected a First Amendment free exercise and free expression challenge by the Canyon Ferry Road Baptist Church in East Helena, Montana to an order issued last March by the Montana Commissioner of Political Practices. (See prior posting.) The Associated Press reported yesterday that the court upheld the state's ruling that the church should have reported its support of activities in 2004 to get voters to pass a constitutional ban on gay marriage. The church's activities turned it into an "incidental campaign committee" under state law. The court rejected the church's argument that the state's campaign laws are unconstitutional.

UPDATE: Here is the full opinion in Canyon Ferry Road Baptist Church v. Higgins, (D MT, Sept. 26, 2006).

Suit Filed To Get VA Approval Of Wiccan Symbols On Military Headstones

Yesterday, the American Civil Liberties Union filed suit on behalf of several plaintiffs, asking the United States Court of Appeals for Veterans Claims "to direct the National Cemetery Administration (NCA) of the Department of Veterans Affairs (VA) to respond to long-pending applications to include the Wiccan Pentacle among the emblems of belief that may be engraved on government-issued headstones and markers of deceased veterans." In the complaint in Egbert v. Nicholson (full text), plaintiffs based their request on the Administrative Procedure Act, the First Amendment's free expression and establishment clauses, and the Religious Freedom Restoration Act. In a press release announcing the filing of the litigation, the ACLU quoted its staff attorney, Aaron Caplan: "The government has no business picking and choosing which personal religious beliefs may be expressed. All veterans, regardless of their religion, deserve to have their faith recognized on an equal basis." (See prior related posting.)

Tennessee School To Reconsider Distribution Of Gideon Bibles

The Lebanon Tennessee Special School District is considering whether to end a long-time practice of permitting the Gideons to drop off Bibles on display tables in the schools once each year for interested fifth graders to take home. The Tennessean reports that the board decided to re-examine its policy after a parent complained that the practice takes away from parents the decision as to what religious literature their children should receive.

Airport Will Accommodate Muslim Cabbies' Objections To Alcohol

The Metropolitan Airports Commission of Minneapolis-St. Paul, in Minnesota, is dealing with a new issue of accommodation of Muslim religious practices. On Thursday, the Minneapolis Star-Tribune reported that some 75% of the 900 taxi drivers at Minneapolis-St. Paul International Airport are Somalis, many of whom are Muslim. Observant Muslim cabbies object to transporting passengers carrying alcohol that is openly displayed. So arriving passengers are sometimes refused taxi service when a driver sees them carrying wine or liquor. To deal with the issue, the Airports Commission is proposing to place color-coded lights on taxi roofs to indicate which cabs will accept riders carrying alcohol. Taxi starters at the airport curb will then be able to direct passengers carrying, for example, duty free bags containing alcoholic beverages to cabs that will accept them. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Security At Red Mass Does Not Violate Religious Protesters' Rights

In Mahoney v. United States Marshals Service, (DDC, Sept. 27, 2006), the federal district court for the District of Columbia this week upheld security arrangements imposed by the US Marshals Service on the Red Mass held each year in St. Matthew's Cathedral just before the first Monday opening of the U.S. Supreme Court's session. A Presbyterian minister, a fellow-Christian, and a Christian religious organization had claimed that the restrictions on protesters violated their First Amendment speech rights and the Religious Freedom Restoration Act. The plaintiffs wished to carry signs supporting the public display of the Ten Commandments. The court found that the challenged security restrictions were narrowly drawn, content neutral time, place and manner regulations, and that they did not impose a substantial burden on plaintiffs' free exercise of religion. Demonstrators had adequate alternative channels available to them. [Thanks to Blog from the Capital for the lead.]

Many New Articles Of Interest Have Recently Appeared

From American Political Science Association:
Carolyn M. Warner & Manfred W. Wenner, Religion and the Political Organization of Muslims in Europe, (Perspectives on Politics, Sept. 2006).

From SSRN:
Tanya Marie Johnson, The Defense of Marriage Act and the Establishment Clause , (April 21, 2006).

From Bepress:
Jennifer Kreder, Undoing the Native American Graves and Repartriation Act, (September 6, 2006).

Elisabeth D. Reid, The Faith Based and Community Initiative and the Challenge Posed by the Establishment Clause, (September 9, 2006).

Andrew Koppelman, Conscience, Volitional Necessity, and Religious Exemptions, (September 15, 2006).

Kojo Yelpaala, Legal Consciousness and Contractual Obligations, (September 19, 2006).

From SmartCILP:
Adlia Abusharaf, Women in Islamic Communities: The Quest for Gender Justice Research, 28 Human Rights Quarterly 714-728 (2006).

Waheeda Amien, Overcoming the Conflict Between the Right to Freedom of Religion and Women's Rights to Equality: a South African Case Study of Muslim Marriages, 28 Human Rights Quarterly 729-754 (2006).

Nora O'Callaghan, Lessons from Pharaoh and the Hebrew Midwives: Conscientious Objection to State Mandates As a Free Exercise Right, 39 Creighton Law Review 561-639 (2006).

Daniel J. Rosenthal, Charitable Choice Programs and Title VII's Co-religionist Exemption, 39 Creighton Law Review 641-665 (2006).

Panel: The History, Religion, and Philosophy of American Exceptionalism. Articles by Claes G. Ryn, Joseph Boyle, William T. Cavanaugh and Charles J. Reid, Jr. 3 University of St. Thomas Law Journal 211-310 (2005).

Tennessee School Sued Over "Praying Parents" Group

The ACLU of Tennessee filed suit in federal court this week on behalf of the parents of a kindergartener against the Wilson County (TN) Schools and various school officials. The lawsuit challenges Christian meetings and prayer events that are held at Lakeview Elementary School in Mt. Juliet, Tennessee. The Tennessean reports today that the challenged activities include a "Praying Parents" group that meets in the school cafeteria during school hours and drops off fliers in classrooms to let children know the group has prayed for them. The Praying Parents group is featured on the school's website. The suit also says that the school observed "National Day of Prayer" by holding a student poster competition and handing out "I prayed" stickers to students.

EEOC Sues On Behalf of Jehovah's Witness Waitress

The U.S. Equal Employment Opportunity Commission has filed a religious discrimination lawsuit against Razzoo's Cajun Cafe in Dallas, Texas, according to yesterday's Dallas Business Journal. The suit grows out of a complaint by a Jehovah's Witness who was employed as a waitress at the restaurant. She requested not to be part of birthday celebrations for customers at the restaurant because her religion forbids such celebrations. She offered to cover other waitresses' tables while they sang for customers, but the restaurant refused to accommodate her and instead fired her from her job.

Hungarian Protests Have Antisemitic Flavor

Today's edition of the Forward reports that the anti-government riots that have shaken the Hungarian capital of Budapest for over a week have used antisemitic terminology and symbols. Among these are the red and white flag of Hungary’s World War II fascists. Hungarian Prime Minister Ferenc Gyurcsány has been condemned by rioters and their sympathizers in veiled, and sometimes more explicitly, antisemitic language. Gyurcsany is not Jewish.

Religious Polygamists Prevalent In Upscale Utah Subdivisions

A syndicated article from the Chicago Tribune today focuses on the prevalence of polygamy in upscale subdivisions around Salt Lake City, Utah. After US. Senate Minority Leader Harry Reid from Nevada, who is a Mormon, wrote Attorney General Alberto Gonzales on Sept. 12 to request a federal task force to investigate polygamous sects in the Western U.S. (full text of letter), many polygamists have come forward to defend their religious beliefs in plural marriage. They say it fulfills the mission of all Mormons to be fruitful and multiply and to ascend to the highest reaches of heaven. They decry the fact that the mainstream Mormon church in 1890 abandoned polygamy for what they see as political expediency. Experts estimate that 40,000 people live in polygamous families in the Western U.S., with most of those in Utah.

Vatican Message To U.N. On Religious Freedom

Zenit has published the full text of a Sept. 21 address on Religious Freedom In the Global Village delivered to the United Nations Human Rights Council by Archbishop Silvano Tomasi, the Holy See's permanent observer to the U.N.'s office in Geneva.

Pennsylvania Upholds Father's Right To Teach Religious Belief In Polygamy

Yesterday in Shepp v. Shepp, (PA Sup. Ct., Sept. 27, 2006) (majority opinion, concurrence, dissent) the Pennsylvania Supreme Court refused to order a divorced father to refrain from discussing his religious views that favor polygamy with his daughter whose custody he is sharing. The order was sought by the child's mother who divorced her former husband because of his beliefs in polygamy. The court said:

Based on the record before us, it is clear that the Commonwealth’s interest in promoting compliance with the statute criminalizing bigamy is not an interest of the "highest order" that would supersede the interest of a parent in speaking to a child about a deeply held aspect of his faith.... The state’s compelling interest to protect a child in any given case ... is not triggered unless a court finds that a parent’s speech is causing or will cause harm to a child’s welfare.

However Justice Baer dissenting argued:

It is imperative ... to distinguish matters of free expression from matters of immoral and criminal conduct. Where the former amounts to indoctrination into the latter, constitutional rights begin to yield to society’s interests in regulating such conduct.

The Associated Press reports on the decision.

Wisconsin City Settles RLUIPA Suit

Today's Milwaukee Journal Sentinel reports that the city of New Berlin, Wisconsin has reached a settlement with SS Constantine and Helen Greek Orthodox Church in a long-running zoning dispute. In 2005, the U.S. Seventh Circuit Court of Appeals held that the city's refusal to grant the church's rezoning request violated RLUIPA. This week's settlement requires the city to pay the church $370,000 in damages and will rezone the land to permit the church to build once it applies for a building permit and submits plans. The agreement still needs to be approved by the court.

EEOC Charges Private College With Religious Discrimination

The U.S. Equal Employment Opportunity Commission has sued a private college, the University of Phoenix, alleging that the school favors enrollment counselors who are members of the Mormon Church over other counselors. Yesterday's Arizona Republic reports that the EEOC charged that non-Mormon counselors employed by the University were not given the same leads on new students and were discriminated against in other ways as well.

Religious Clubs Thrive In South Florida Schools

Today's Miami Herald says that religious clubs are thriving in public schools in South Florida. The Christian group, First Priority, has 80 chapters in Broward and Palm Beach counties, supported by local churches. Jewish and Muslim, as well as Christian groups are on Miami-Dade middle and high school campuses. The federal Equal Access Act requires that such groups be treated in the same way as non-religious extracurricular organizations in public secondary schools.

FLDS Jeffs Charges Religious Persecution

Walter Bugden, attorney for Warren Jeffs, the jailed leader of the FLDS Church, says that his client views his prosecution for rape as an accomplice and for sexual conduct with a minor to be religious persecution. The St. George (UT) Spectrum reported on the remarks that were made yesterday after a brief scheduling conference was held in court for Jeffs who is charged in connection with arranging polygamous marriages involving minors.

German Officials, Muslim Leaders, Confer On Divisive Issues

Today's New York Times reports that in Berlin yesterday 15 government officials held a conference with 15 German Muslim leaders to discuss issues that divide Muslims from non-Muslims. Interior Minister Wolfgang Schäuble, organized and chaired the conference. The issue on which all participants agreed was that the Detusche Oper of Berlin should reverse its decision to cancel the Mozart opera Idomeneo in which a scene includes the severed head of the Prophet Muhammad. Opera officials feared a violent reaction from Muslims. (See prior posting.) Other issues discussed at the conference included teaching of the Islamic religion in public schools, training of imams in Germany, construction of mosques, and discrimination against Muslims in Germany.

State Employee's Religious Discrimination Claim Survives

In Garcia v. Illinois Department of Children and Family Services, 2006 U.S Dist. LEXIS 68463 (ND IL, Sept. 11, 2006), an Illinois federal district court permitted a state employee to proceed with her Title VII religious discrimination claim that religious items were removed from her cubicle, that she was told to stop performing the sign of the cross and to stop saying "bendito," and that the regional administrator said her performance of the sign of the cross was one of the reasons she was required to undergo a fitness-for-duty examination.

Florida Church For Homeless Sues For Discrimination In Zoning

In Gainesville, Florida on Tuesday, Fire of God Ministries sued the city in federal court alleging religious discrimination in requiring the church to obtain a special use permit to operate when the city previously allowed a Moose Lodge to hold meetings on the same property without a permit. The Gainesville Sun reports that the church's congregation is largely homeless, and the church feeds them meals as well as holding services.

Illinois Church Election Under Court Supervision Upheld

In Marsaw v. Richards, 2006 Ill. App. LEXIS 870 (IL App., Sept. 22, 2006), and Illinois state court of appeals upheld a trial court's judgment that resolved a dispute between two factions of the Bethlehem Healing Temple Church through ordering an election that it supervised. The Court of Appeals found that the trial court had resolved the dispute using neutral principles of civil law. Even though the church's formal election procedures had often not been used in the past, they were still operative. The court also held that the results of a judicial proceeding are not burdens on religious practice that violate the Illinois Religious Freedom Restoration Act.

Los Angeles Churches Have Made Political Contributions

Today's Los Angeles Daily News reports that 39 Los Angeles area churches, synagogues and Buddhist temples were identified by local political candidates as contributing more than $15,000 to their election campaigns since 1998. The information was obtained from Ethics Commission filings. The disclosures add to the growing national debate over the role of churches in politics.

German Opera Company Cancels Mozart Performance Fearing Religious Violence

In Germany, Deutsche Oper has cancelled a production of Mozart's "Idomeneo" with a scene featuring the severed heads of Jesus, Buddha and the Prophet Muhammad, out of fear of violent reactions by Muslims. German Chancellor Angela Merkel condemned the decision to cancel the performance, saying that self-censorship out of fear would not be tolerated. Stories in the International Herald Tribune and the Washington Post discuss the reactions across Germany.

Accommodation For Religious Group Is Problem For British Pension System

In Britain on April 6 of this year, new rules came into effect to offer simple and more flexible retirement pensions. However it now appears that what was intended to be an accommodation for a small religious group could threaten the viability of the whole pension plan. Yesterday's Belfast Telegraph reports that the new pension rules contain an alternative to traditional pensions designed for the Plymouth Brethren, a group that has religious objections to anyone except God calculating one's likely date of death. The rules provide for "alternatively secured pensions" (ASP's) that permit savers to keep their funds invested in the stock market until their death, and then pass on those assets to their heirs. With traditional pensions, nothing goes to one's heirs. The problem that has now surfaced is that nothing in the legal rules limit ASP's to those who have religious objection to traditional pensions. So now many financial advisers are considering suggesting ASP's be used by a broader group of investors. While the Treasury is looking at possible changes to limit ASP's to religious objectors to risk pooling, the Equality Act 2006 prohibits discrimination on the grounds of religion in the provision of goods and services.

Justice Department Sues NY Village Under RLUIPA

The Associated Press yesterday reported on a suit filed by the U.S. Department of Justice against the village of Sufferin, New York, that tests the scope of the Religious Land Use and Institutionalized Persons Act. The suit involves the operation of "Shabbos House" at Good Samaritan Hospital in Sufferin. Since the nearest hotel is over three miles away, Bikur Cholim, Inc., an Orthodox Jewish service agency, operates a facility within walking distance in which Orthodox Jews can stay on the Sabbath and on Jewish holidays in order to visit patients without violating religious rules against driving on those days. For six years the facility was on hospital grounds. However in 2004, in connection with expansion of the hospital, Shabbos House was moved across the street into a newly built house in an area zoned for single family dwellings. The village, however, refused an application for a building permit and zoning variance to permit the house to be used by up to 14 people. Village attorney, Terry Rice, said that Bikur Cholim did not claim a religious use when it asked for the zoning variance. The facility is operating pending a court decision.

Michigan Township's Zoning Violates RLUIPA

Earlier this month, in New Life Ministries v. Charter Township of Mt. Morris,(ED MI, Sept. 7, 2006), a federal district court in Michigan granted summary judgment to New Life Ministries in its suit charging a Michigan township with violating the Religious Land Use and Institutionalized Persons Act. The township's zoning ordinance does not permit buildings used for religious services in areas zoned C-2, even though it permits theaters, schools and various kinds of organizations in those areas. The court found that this violates 42 U.S.C. §2000cc(b)(1) that prohibits land use regulations that treat religious organizations unequally with secular institutions. The court held that the jurisdictional requirements imposed by RLUIPA for claims that land use regulations impose a substantial burden on free exercise do not apply to unequal treatment claims under the statute.

House Passes Ban on Attorneys' Fees In Establishment Clause Cases

Earlier today, the U.S. House of Representatives passed H.R. 2679. The bill, originally known as, the Public Expression of Religion Act, (see prior posting) was amended prior to passage to be called the "Veterans' Memorials, Boy Scouts, Public Seals, and Other Public Expressions of Religion Protection Act of 2006". The bill passed by a vote of 244-173. The House vote and background is reported by ABP News. Here is a listing of the vote cast by each House member. The controversial bill would prevent federal courts from awarding attorneys' fees to plaintiffs in suits alleging Establishment Clause violations by state or local governments, and would limit relief to injunctions and declaratory judgments. A number of religious and civil liberties groups opposed the bill, arguing that it will chill the ability of minority groups to defend their religious liberties. However, proponents say that the threat of attorneys' fee awards gives plaintiffs undue leverage in negotiating settlements of Establishment Clause claims. The measure is not likely to become law because, according to ABP, it is unlikely that the Senate will vote on the companion bill pending in that chamber before the current session of Congress ends.

Michigan School's Policy On Choir Music Stirs Debate

In Howell, Michigan, the visit of a German choir to Howell High School through an exchange program has created controversy among parents over the school's policy on religious music. The Livingston (MI) Press & Argus reported today that the school has developed a policy that choir concerts should contain no more than 30% sacred music. The German "Voices of Heaven" choir was apparently asked to cut out some of their usual music to meet this policy. This has angered some parents of Howell students who hosted the visiting choir members for a September 13 concert.

Spain Will Change Method Of Financing Catholic Church

Last Friday, according to the International Herald Tribune, the Spanish government announced a new arrangement for funding of the Catholic Church in Spain. The government will no longer give direct grants to the Church, and the Church will begin to pay the country's value added tax, as required by the European Union. In exchange, the amount that Spanish taxpayers can voluntarily elect to donate to the Church from their tax declarations will rise from 0.52% to 0.7%. As of last Friday, the Bishop's Conference of Spain had no comment on the arrangement until it saw the language of the new law.

Recent Prisoner Free Exercise Cases

In Brown v. Riley, 2006 U.S. Dist. LEXIS 66883 (WD MI, Sept. 19, 2006), a Michigan federal district judge adopted the report and recommendation of a magistrate judge that found a prison officer acted improperly in denying an inmate a kosher diet.

In Roddy v. West Virginia, 2006 U.S. Dist. LEXIS 68106 (ND WV, Sept. 21, 2006), a federal district judge dismissed without prejudice claims by an inmate that his free exercise rights were infringed when certain Native American religious items were confiscated from him. The court found that the inmate had not exhausted his internal grievance procedures before filing suit.

In Lee v. Wenderlich, 2006 U.S. Dist. LEXIS 67731 (WD NY, Sept. 21, 2006), a New York federal district judge permitted an inmate to move ahead with his First Amendment challenge to a prison rule that resulted in his name being removed from the list of those attending Ramadan services because he had 3 unexcused absences in attending.

In Mize v. Lewis, 2006 U.S. Dist. LEXIS 68008 (ED TN, Sept. 21, 006), a Tennessee federal district court upheld prison rules that denied a prisoner Christian Identity literature that promotes racism, anti-Semitism, and white separatist views connected with security threat group activity.

In Ghani v. Caldwell, 2006 U.S. Dist. LEXIS 66475 (ED MI, Sept. 18, 2006), a Michigan federal district court dismissed a Buddhist prisoner's claims regarding his access to vegan meals. The court found that he was now receiving such meals and that at the time meals were first refused, the 6th Circuit had held that RLUIPA was unconstitutional and the U.S. Supreme Court decision to the contrary had not yet been rendered.

Army Temporarily Enjoined From Placing Conscientious Objector On Active Duty

A federal judge in Boston has temporarily enjoined the Army from forcing into active duty a doctor who says that her religious conscientious objection was kindled only well after she had enlisted when in 2003 her father died. Today the Associated Press reports that Dr. Mary Hanna, a Coptic Orthodox Christian, had agreed to serve on active duty and then in the reserve in exchange for the Army's paying for her medical education at Tufts University. Her attorney says she will repay the $184,000 the government has paid for her education. The court set a hearing in the case for October 10.

Polygamy Ban Being Challenged In 10th Circuit Case

The Associated Press yesterday, in a widely disseminated article, discusses the briefs that have been filed in a U.S. 10th Circuit Court of Appeals case that is challenging the constitutionality of Utah's ban on polygamy. Challengers argue that they have a deeply held religious belief that plural marriage is ordained of God and is to be encouraged and practiced. They say that the polygamy ban unconstitutionally targets one religion. The brief focuses on the 2003 U.S. Supreme Court decision in Lawrence v. Texas that struck down Texas' homosexual sodomy statute as precedent for invalidating on privacy grounds Utah's polygamy laws as well.

"See You At The Pole" Is Tomorrow

Tomorrow is scheduled as the annual See You At The Pole gathering at schools around the country. Organizers describe the event on their website as: "a student-initiated, student organized, and student-led event. That means this is all about students meeting at their school flagpole to pray—for their school, friends teachers, government, and their nation. [It] is not a demonstration, political rally, nor a stand for or against anything." The website also offers advice on the rights of students to conduct these events before school hours begin, and the rights of adults to attend. Today's Ft. Myers (FL) News-Press carries an article on the background of SYATP and of the church-state issues surrounding it.

Clerics Maneuvering In Advance of Iranian Election of Assembly of Experts

The New York Times today reported on the machinations taking place in Iran as candidates are attempting to position themselves for the upcoming December 15 election of the Assembly of Experts-- a body of religious experts who oversee the Supreme Leader of the country.

Free Exercise Challenge To Migratory Bird Treaty Act Eagle Protection Rejected

In United States v. Tawahongva, 2006 U.S. Dist. LEXIS 67947 (D. AZ, Sept. 11, 2006), an Arizona federal district court rejected the motion of a member of the Hopi Indian tribe seeking dismissal of the indictment that charged him with illegally possessing a golden eagle in violation of the Migratory Bird Treaty Act. Defendant Berra Tawahongva claimed that his rights to free exercise of his religion would be infringed by forcing him to obtain a permit in order to gather eagles. The court held that Tawahongva lacked standing to challenge the permit system as applied to him, since he never attempted to obtain a permit. Insofar as he is asserting a facial challenge to the permit system, Tawahongva failed to show that his free exercise of religion was substantially burdened. Moreover, the United States has established a compelling interest in the protection of golden eagles and has demonstrated that the permit system is the least restrictive means of serving that interest.

Pope Meets With Muslim Envoys Over His Remarks

Reuters and Deutsche Welle are among those reporting that Pope Benedict XVI held a meeting today with the envoys of 22 Muslim countries plus the leaders of Italy's Muslim community in order to defuse Muslim anger over a speech he made in Regensburg, Germany on Sept. 12. During today's meeting at the Pope's summer residence in Castle Gondolfo, Benedict XVI urged a continuing dialogue between Christians and Muslims. He told the ambassadors: "I should like to reiterate all the esteem and the profound respect that I have for Muslim believers." Several of the envoys in attendance said they were satisfied with the meeting.

Parent's Suit Against School's "Opposite Sex Day" Survives Dismissal Motion

In Stanley v. Carrier-Mills Stonefort School District No. 2, 2006 U.S. Dist LEXIS 68061 (SD IL, Sept. 21, 2006), an Illinois federal district court refused to dismiss a claim by the parent of school children that the school's "Opposite Sex Day" violated her right to raise her children according to her Christian beliefs. The school encouraged, but did not require, students to dress for that day in clothing of the opposite sex. Plaintiff claims that even though not required, the stigma of not participating would effectively compel her children to cross dress, in violation of Deuteronomy 22:5 that reads: "A woman must not wear men's clothing, nor a man wear women's clothing, for the Lord your God detests anyone who does this."

Recent Articles On the Constitution, Law and Religion

From SmartCILP:
David B. Kopel, The Catholic Second Amendment, 29 Hamline Law Review 519-565 (2006).

Pat Nolan & Marguerite Telford, Indifferent No More: People of Faith Mobilize to End Prison Rape, 32 Journal of Legislation 129-141 (2006).

From SSRN:
Richard W. Garnett IV & Joshua D. Dunlap, Taking Accommodation Seriously: Religious Freedom and the O Centro Case (2006 Cato Supreme Court Review 257 ).

From Bepress:
Robert J. Delahunty, Varied Carols: Legislative Prayer in a Pluralist Polity (August 24, 2006).

University Of Wisconsin Refuses To Recognize Catholic Foundation As Student Group

On Friday, the University of Wisconsin- Madison informed the UW Roman Catholic Foundation that it would not be recognized as a student organization because it is not controlled and directed by students as required by University rules. Only 3 of the group's 12 board members are students. The Associated Press on Saturday reported that the group is the oldest and largest religious organization on campus. The University's e-mail was received just as the Foundation was filing a complaint with the U.S. Department of Justice alleging that the University has violated court decisions requiring funding of student groups without regard to their viewpoints.

Last May, the University's chancellor reluctantly recommended approval $145,000 for the Foundation even though he believed that use of the funds for an evangelical ministry, prayer groups and Lenten booklets would violate the Establishment Clause. Recently the University applied the rule requiring students to control recognized organizations to deny recognition to the Knights of Columbus as a student group. (See prior posting.)

Religion In Russian Schools

Monday's Moscow Times carries an interesting article on the teaching of Orthodox culture in Russian schools. Schools in the Moscow region have been experimenting with the classes for six years. However no clear guidelines are in place for what can be taught. The article discusses one teacher's course that covers specific holidays in the Russian Orthodox Church.

Vermont Supreme Court Rejects Free Exercise Argument In License Suspension

In Office of Child Support ex rel. Stanzione, (Vt. Sup. Ct., Sept. 13, 2006), the Vermont Supreme Court took only one week after oral arguments to decide that the mother, whose drivers license was suspended for nonpayment of child support, had not made a threshold showing that suspending her drivers' license would substantially burden her free exercise of religion.

Church Land Use Denial Arises In Claim Against Army

A recent decision by the United States Court of Federal Claims raises a church land use issue in an unusual setting. Grace Church of Los Alamitos, California was refused a conditional use permit for property it wished to purchase located next to a military air base. The current owners of the property, whose contract to sell the property to Grace Church was conditioned on the Church obtaining a conditional use permit, claimed that a United States Army study of property near the airfield, issued in violation of applicable regulations, caused unfounded public safety concerns by warning that the property was near the airfield's crash zone. The House of Representatives, pursuant to 28 USC 1492, referred the claim to the Court. In Davis v. United States (Ct. Fed. Cl., Sept. 15, 2006), the court found that the Army's study was not a substantial factor in the city's denial of a permit. The city was already aware of the problems flagged by the report. So that there were no damages caused by the Army report and the owners therefore had no valid claim against the United States.

Recalled Trustee's Challenge To Pledge of Allegiance Fails

Habecker v. Town of Estes Park, Colorado (D. CO, Sept. 21, 2006), is a challenge to the words "under God" in the Pledge of Allegiance that arose in a rather unusual context. David Habecker, a town trustee was recalled in an election in which the dominant issue was whether citizens wished to be represented by an official who refused to stand and recite the Pledge of Allegiance at trustees' meetings. A Colorado federal district court dismissed the case on standing grounds because it was not the Pledge that caused Habecker's recall, he was not forced to recite the Pledge, and a declaratory judgment regarding the Pledge would not remedy his recall. It found that the case was moot because Habecker was no longer in office. The court went on to find that even if the case were justiciable, since trustees' meetings could be opened with an explicit prayer, there was no constitutional problem with opening the meetings with the Pledge. Finally the court held that the action of citizens in circulating a petition and voting for Habecker's recall was private action, not state action.

A report on the case in Saturday's Rocky Mountain News points out that the U.S. Justice Department had entered the case on the side of the town, arguing that the Pledge is merely a patriotic exercise.

Bush Addresses Muslims On Ramadan and In Radio Address

This week end, President Bush sent two complementary messages to Muslims and the Muslim world. On Friday, President Bush extended greetings to Muslims in America and around the world who are observing Ramadan. He said: "Ramadan and the upcoming holiday seasons are a good time to remember the common values that bind us together. Our society is enriched by our Muslim citizens whose commitment to faith reminds us of the gift of religious freedom in our country."

The next day in his weekly radio address, the President said that Muslim nations are bound together with other civilized nations in the struggle between moderation and extremism throughout the Middle East.

NAACP Says Clinic Closing For Jewish Sabbath Is Discriminatory

Last week, the Lower Hudson Journal News reported that the Spring Valley, New York chapter of the NAACP has filed a complaint with the Rockland County Commission on Human Rights alleging that a local medical and dental clinic is guilty of religious discrimination because it closes on Saturday to observe the Jewish Sabbath. The complaint alleges that this results in the clinic operators imposing their religious beliefs on others. Apparently the clinic has receive millions of dollars in federal funding. The complaint filed with the Human Rights Commission says that 80% of the clinic's patients are Black or Hispanic and would find it convenient to be able to visit the clinic on Saturdays rather than having to take off work for an appointment. [Thanks to Eugene Volokh via Religionlaw for the lead.]

UPDATE: Here is the full text of the complaint filed with the State Division of Human Rights by the NAACP, courtesy of Eugene Volokh.

President's Greetings As Rosh Hashanah Begins

The holiday of Rosh Hashanah, the Jewish New Year, begins at sundown this evening. Yesterday President Bush issued a Presidential Message sending greetings to those celebrating the holiday. He said in part: "As you begin the Days of Awe, your faith in the Almighty reminds us of the gift of religious freedom in our country and helps make the world a more hopeful place."

Detroit Muslims Say Charity Harassed Again This Ramadan

In Detroit on Monday, federal agents with the Joint Terrorism Task Force executed search warrants on the offices of the Muslim charity Life for Relief and Development, as well as on homes and an office of three others connected with the charity. This morning's Detroit Free Press reports that Muslim leaders charge that there is a pattern of government harassment of Islamic charities each year near the start of the month of Ramadan. An FBI spokesman denied the charges, saying that the FBI "does not target people because of their religion." The raid may be connected to work the charity did in Iraq before the 2003 Iraq war.

No Establishment Clause Problem With Minnesota Criminal Sexual Conduct Law

In State v. Bussmann, (MN Ct. App., Sept. 19, 2006), a Minnesota court of appeals rejected an Establishment Clause challenge to a statute that provides higher penalties for criminal sexual conduct that takes place "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private." The court relied on a 2003 decision in rejecting the argument that the statute excessively entangles religious doctrine with state law.

Riots After Indonesia Executes Three Catholics

In Palu, Indonesia, according to the Associated Press, three Roman Catholics convicted of instigating attacks on Muslims were executed by a firing squad on Thursday. Human rights workers have charged that the executed men were not the leaders of the attacks, and that their 2001 trial was a sham. Following the execution, mobs of Christians torched cars, blockaded roads and looted Muslim-owned shops. Some 200 inmates escaped from a jail assaulted by the mobs in the town of Atambua.

Church Votes To Fight IRS Summons

All Saints Episcopal Church in Pasadena, California announced at a news conference yesterday that its 26-member vestry has voted unanimously to fight the IRS' summonses issued last week that call for various documents and an interview with the rector regarding an anti-war sermon by a guest preacher just before the 2004 Presidential election. (See prior posting.) The Associated Press yesterday reported that the church's rector, Rev. Ed Bacon, was joined at his news conference by 40 representatives of mosques, synagogues and other churches. Santa Monica Rabbi Neil Comess-Daniels urged supporters of all faiths contribute to funds to help All Saints with its legal costs. Comess-Daniels made the first pledge at the news conference.

House Resolution Condemns Repression of Bahais By Iran

On Tuesday the U.S. House of Representatives overwhelmingly supported H. Con. Res. 415, condemning the repression of the Iranian Baha'i community and calling for the emancipation of Iranian Baha'is. The vote was 392 in favor, 2 against, and 37 members not voting.

Funeral Picketers Become Kansas Election Issue

Rev. Fred Phelps Sr. and his Westboro Baptist Church in Topeka, Kansas have become an issue in the hard-fought race for Kansas Attorney General, according to yesterday's Associated Press. Republican incumbent Phill Kline is pressing for legislation to toughen Kansas' law that prohibits demonstrations at funerals. Westboro Baptist Church members picket soldiers' funerals, claiming that deaths in Iraq and Afghanistan are God's punishment for the United States tolerating homosexuality. However now it turns out that Rev. Phelps son donated $500 to Kline's campaign and was subsequently invited to a Kline fundraiser. Kline says he did not know of Phelps' connections with Westboro Baptist. Kline later gave the $500 to the Patriot Guard, a group that protests against the Phelpses. Kline said that the subsequent invitation to Phelps , if it happened, was a clerical error.

9th Circuit OK's Exclusion Of Worship Services From Library Rooms

Yesterday in Faith Center Church Evangelistic Ministries v. Glover, (9th Cir., Sept. 20, 2006), a 3-judge panel in the 9th Circuit wrote 3 opinions, and by a vote of 2-1 decided that a Contra Costa County public library could make its meeting rooms available for "meetings, programs, or activities of educational, cultural or community interest", while excluding their use for "religious services". The majority opinion by Judge Paez focused on cases that permit the government to draw reasonable, viewpoint neutral distinctions on who can use a "limited public forum". He concluded that: "Religious worship ... is not a viewpoint, but a category of discussion...." Excluding religious discussion of topics on which secular perspectives exist is not permissible. Excluding pure worship is.

A dissent by Judge Tallman argued that any attempt by the County to distinguish worship from other kinds of religious speech would create excessive government entanglement with religion, in violation of the Establishment Clause.

However, the most interesting reading was Judge Karlton's concurring opinion. He wrote:

I concur in Judge Paez's well-reasoned opinion, which reflects the sorry state of the law. I write separately to express my dismay at that sorry state.

This should be a simple case it asks whether the county can be forced to subsidize a religious organization's prayer meetings by requiring it to provide the religious organization with a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question....

[Prior cases] turn on the High Court's purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment.... [R]eligious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

Those, like myself, who advocate adherence to the strictures of the Establishment Clause, do so not out of hostility towards religion.... Rather, we are motivated by recognition of the passions that deeply-held religious views engender, and the serious threat of marrying those passions to government power.... That threat is not merely historic. One need only look about the world to see that danger in play.

The San Jose Mercury News covers the decision. (Also see prior related posting.)

Study of Black Churches and Faith-Based Initiative

Last Tuesday, the Joint Center for Political and Economic Studies published a report on Black churches and President Bush's Faith-Based Initiative. A release by the Center summarizes the study's major findings. Only 2.4% of the Black churches surveyed received any faith-based funding. Interestingly, of the Black churches that did receive such funding 47% were from the Northeast, and only 26% were from southern states. African-American churches in states that voted Democratic in the last two presidential elections were more likely to get faith-based grants than were churches in states that voted Republican. The study found that liberal and progressive churches were more interested in participating in the Faith Based initiative than were conservative ones, even though conservative churches viewed the Faith Based Initiative more favorably. And the report concluded that there had been insufficient outreach to Black churches about the Faith Based Initiative. Newhouse Newspapers yesterday reported on the study.

Pope Again Tries To Explain His Remarks About Islam

Speaking this week at his Wednesday audience in St. Peter's Square, Pope Benedict XVI again attempted to clarify his controversial use of a quotation about Islam from a 14th century Byzantine emperor in remarks he made last week at the University of Regensburg in Germany. Zenit reports the text of his Wednesday statement:

For the careful reader of my text, it is clear that I did not wish at any time to make my own the negative words uttered by the medieval emperor in this dialogue and that its controversial content does not express my personal conviction.... I wished to invite the Christian faith to dialogue with the modern world and to dialogue with all cultures and religions.

He said that he has tried to make clear his

deep respect for the great religions, in particular for Muslims -- who 'adore the one God' and with whom we are engaged in "preserving and promoting together for all mankind social justice, moral values, peace and freedom."

Two Decisions On Jurisdiction Over Religious Employment Disputes

Two cases involving the constitutional limits on federal court jurisdiction over employment decisions made by religious authorities were handed down this week:

In Vann v. Guildfield Missionary Baptist Church, 2006 U.S. Dist. LEXIS 66947 (WD VA, Sept. 19, 2006), a Virginia federal district court permitted the minister of a church to proceed with his claim that his dismissal by the deacon of his church violated the church's bylaws. The bylaws provided for the minister's dismissal only by a vote of a majority of the church's members. The court said that since no member vote was ever taken, "the Church itself has never acted. Thus, I have subject matter jurisdiction to consider this case because the decision to fire Vann .... was not the decision of a religious entity or church. As a result, that decision is not constitutionally protected from judicial review."

Maruani v. AER Services, 2006 U.S. Dist. LEXIS 66789 (D MN, Sept. 18, 2006), involved the dismissal of Leo Maruani , a shochet (kosher butcher), from the employ of AER Services, a commercial business that provides slaughtering services for companies that sell kosher meat products. He was dismissed after the rabbi supervising the plant in which he worked objected to the fact that Maruani was not leading a visibly pious life because he did not live within walking distance of an Orthodox synagogue.

The court dismissed Maruani's claim that he was discriminated against because of his religion in violation of the Minnesota Human Rights Act. He alleged that the supervising rabbis placed religious requirements upon him that they did not impose on other shochtim. The court held: "An examination of the gradations in the rules of Kashruth or severity with which the rabbis enforced those rules is precisely the type of religious-based claim the Court is forbidden from entertaining." However the court permitted Maruani to proceed with claims that the rabbis' religious objections were not the real reason for his dismissal, and that the real reasons violated Minnesota's Whistleblower Act and its Workers Compensation Act.

Michigan Gubernatorial Candidate Favors Teaching Intelligent Design

During an interview on educational issues with the Associated Press on Tuesday, Michigan Republican gubernatorial candidate Dick DeVos said he favors permitting, but not requiring, the teaching of Intelligent Design in Michigan public schools. He said: "I would like to see the ideas of intelligent design that many scientists are now suggesting is a very viable alternative theory. That theory and others that would be considered credible would expose our students to more ideas, not less."

Secretary General Warns of Possible Global Religious Warfare

Opening the 61st session of the United Nations General Assembly on Tuesday, Secretary General Kofi Annan, in one paragraph of his speech (full text), warned of the potential of international religious warfare:

[A]t the very time when international migration has brought millions of people of different creed or culture to live as fellow-citizens, the misconceptions and stereotypes underlying the idea of a "clash of civilizations" have come to be more and more widely shared; and insensitivity towards other people's beliefs or sacred symbols -- intentional or otherwise -- is seized upon by those who seem eager to foment a new war of religion, this time on a global scale.

DPA reported Tuesday on this aspect of Annan's remarks.

Indonesia Court Dismisses Blasphemy Case From Muhammad Cartoons

A court in South Jakarta, Indonesia Wednesday dismissed a blasphemy case that had been brought against the editor of Rakyat Merdeka newspaper online for publishing controversial cartoons of the Prophet Muhammad last year. Yesterday's Washington Post reported that the charges were thrown out because the law used by the prosecutor required a showing of disrespect for Islam. The judge found that the paper used the cartoons merely as background for a news story. (See prior posting.)

School Appeals Gideon Bible Distribution Ban

Agape Press reported yesterday that an appeal was filed in the U.S. Eighth Circuit Court of Appeals last week by Missouri's South Iron R-1 School District. It seeks reversal of a trial court decision earlier this month that enjoined the school from permitting the distribution of Gideon Bibles on school property to elementary school students. The school district is being represented by Liberty Lobby, whose Chief Counsel, Erik W. Stanley, said that the lower court was treating the Bible as "a radioactive device that harms children when they are exposed to it".

College Can Require Instructors To Avoid Irrelevant Religious Discussion In Class

Yesterday, the U.S. Seventh Circuit Court of Appeals rejected claims brought by a part-time instructor of cosmetology at a public community college that the school's failure to re-hire her violated her constitutional rights, including her right to discuss her religious beliefs. In Piggee v. Carl Sandburg College, (7th Cir., Sept. 19, 2006), instructor Martha Piggee, upon discovering that one of her cosmetology students was gay, placed two pamphlets in the student's smock during clinical instruction time. She pressed the student to discuss the pamphlets with her. The materials that Piggee had given to student Jason Ruel were virulent religious denunciations of homosexuality in comic book format. When Ruel complained to college officials, they investigated and concluded that Piggee's conduct constituted sexual harassment. They found that "Piggee has been proselytizing in the hopes of changing Mr. Ruel's sexual orientation and religious beliefs." It appears that Piggee had given religious pamphlets to other of her students as well.

The court concluded that: " the college had an interest in ensuring that its instructors stay on message while they were supervising the beauty clinic, just as it had an interest in ensuring that the instructors do the same while in the classroom.... [W]e see no reason why a college or university cannot direct its instructors to keep personal discussions about sexual orientation or religion out of a cosmetology class or clinic." [Thanks to How Appealing for the lead.]

Chicago's Jewish Aldermen Urged On Religious Grounds To Keep Foie Gras Ban

In April, Chicago's City Council, concerned about animal cruelty issues, voted 48-1 to ban the sale of foie gras in Chicago. The Illinois Restaurant Association and a coalition of chefs have filed suit to overturn the ban, and some politicians, including the Mayor, are now pushing for repeal. The Chicago Sun-Times yesterday reported that two Jewish Aldermen have been urged on religious grounds to oppose the ban's repeal. Rabbi Asher Lopatin wrote Aldermen Burton F. Natarus and Bernard Stone, saying: "Beyond the Kosher dietary laws, God has told us to do what is 'good and proper in the eyes of God'. The cruelty inflicted on animals in the production of foie gras is unspeakable. It is undeniably disgusting in the eyes of God and in the eyes of any civilized person." And Jana Kohl, former director of the Simon Wiesenthal Center for Holocaust Studies, wrote the same two Aldermen: "As the only two Jewish members of the Council, it's particularly shameful and disgraceful of you to turn your back on our cherished concept of 'tikun olam,' namely our obligation to make our world a better, more compassionate place."

Lawyers Say Shared-Use By YMCA, School, Not A Church-State Problem

The Northland Pines School District in Wisconsin is proposing to lease land to the YMCA that would permit it to build a facility onto a new high school that is being constructed. Students would have free use of the YMCA athletic facilities during the school day. The Vilas County (WI) News-Review reported yesterday that a law firm engaged by the school board concluded that the agreement does not create church-state problems. The law firm of Davis & Kuelthau S.C., said that the YMCA is unlikely to be found to be a religious organization, despite the fact that it was originally founded on Christian principles. Moreover, it concluded, the purpose of the shared-use agreement between the school and the YMCA is purely secular, and it will not have the primary effect of promoting or advancing religion. Nevertheless, the Freedom From Religion Foundation has written to the school board, expressing concern that the shared-use agreement does not explicitly prohibit religious slogans or imagery in the YMCA building.

Congress Will Award Medal To Dalai Lama

Last week Congress passed,and sent to the President S. 2784, The Fourteenth Dalai Lama Congressional Gold Medal Act. It calls for the award of a special gold medal by Congress to the Dalai Lama in recognition of his contributions to peace, non-violence, human rights, and religious understanding.

Texas State School Board Limited In Reviewing Textbook Content

On September 18, Texas Attorney General Greg Abbott issued Opinion No. GA-0456, holding that the State Board of Education may screen textbooks for factual errors, but may not go beyond the powers granted to it by statute in judging textbook content on controversial issues such as evolution, birth control and global warming. In holding this, Abbott reaffirmed a 1996 Attorney General's opinion. However, Abbott overruled one part of the earlier opinion and held that the State Board of Education has similar authority over ancillary materials like teacher manuals, charts and workbooks. Yesterday's Dallas Morning News reported on the AG Opinion. (See prior related posting.)

Conditions Of Parole At Faith-Based Shelter Challenged

Yesterday's Charleston Gazette reports that the ACLU of West Virginia has filed suit on behalf of William Stanley, challenging the conditions of his parole from prison. (ACLU Press Release.)Upon being granted parole, Stanley was not allowed to move, as planned, to his fiancee's home because of West Virginia's statutory prohibition on cohabitation. The state also rejected Stanley's proposal to live with his brother, because victims of his forgery crime lived nearby. After four months, Stanley arranged to be paroled to the Union Mission, a faith-based nonprofit homeless shelter. However, a condition of living at Union Mission was his participation in a program requiring daily prayer, religious classes and attendance at an approved church. The lawsuit claims that the government unconstitutionally participated in forcing religious practices on Stanley. The suit also challenges West Virginia's anti-cohabitation law.

Election Day Sukkot Holiday Poses Problem In Belgium

In Belgium, thousands of Orthodox Jews face a problem as the country's October 8 elections approach. Election day coincides with one of the days of the Jewish festival of Sukkot. The halachic ban on writing or using electrical equipment on the holiday will make it impossible for observant Jews to vote. Authorities have rejected a request from the country's Forum of Jewish Organizations to permit early voting on Friday, October 6. Voting is mandatory in Belgium. Individuals who do not go to the polls can face a fine, unless they have an authorized exemption. However there are no provisions for religious exemptions. Reporting on the issue, Vrtnieuws says that the only option is for Belgian Jews to vote by proxy. [Thanks to Steven H. Sholk for the information.]