NC County Commission Adopts Group's Model Policy To Permit Opening Prayer

On Monday, the Transylvania County, North Carolina, Board of County Commissioners-- responding to a challenge by the ACLU-- unanimously agreed to continue to open board meetings with a prayer. It adopted a 5-page "model policy" drafted by the Alliance Defense Fund. (ADF Release). The Model Policy sets out the legal rationale for the resolution and then calls for an opening prayer (not listed as an agenda item for the meeting) to be offered voluntarily on a rotating basis by Board members. No guidelines on prayer content will be issued. Each Board member may pray according to the dictates of his or her own conscience. Presumably this permits prayers to contain sectarian references. However "the Board shall request by the language of this policy that no prayer should proselytize or advance any faith, or disparage the religious faith or non-religious views of others."

Finally, the resolution provides that it "shall not be ... construed ... to affiliate the Board with, nor express the Board’s preference for, any faith or religious denomination. Rather, this policy is intended to ... express the Board’s respect for the diversity of religious denominations and faiths represented and practiced among the citizens of the County..."

Via Rail Will Allow Sikhs To Carry Kirpans; Sikh Wins Suit Against Bally

VIA Rail, which operates Canada’s passenger rail service, has reached a settlement with a Sikh student who had been removed from a passenger train for wearing a kirpan (Sikh ceremonial dagger). CBC News reported yesterday that the settlement, obtained through the Canadian Human Rights Commission, includes a refund of the fare paid by the student. More broadly, it involves a change in VIA Rail policy-- already implemented in January-- that allows Sikhs to wear ceremonial daggers on board trains. Student Balpreet Singh said: "I'd have been happier if [Via Rail] had just spoken to me, tried to understand the situation and resolve it...."

Meanwhile, in Fresno, California, a consent decree approved last week orders Bally Total Fitness to pay "Devin" Singh Dhaliwal, a Sikh, $24,000 in damages. The health club must also provide its Fresno managers with training in equal opportunity hiring practices. According to the Associated Press, in a job interview Dhaliwal was asked where his parents were born, what his religion is, and whether he is a Muslim.

Irish Labour Court Rules Against Employees' Push For Catholic Holidays Off

Ireland's Labour Court has ruled that under Irish law, businesses are only required to give employees time off for the nine public holidays set out in the Organisation of Working Time Act 1997. Today's Irish Independent reports that workers at the Lisavaird Co-op in Clonakilty, west Cork, lost their attempt to get time off for four Catholic holy days-- Epiphany, the Assumption of Our Lady, All Saints and the Immaculate Conception. In the past the co-op has closed on those days, but management now wants to open and is willing to compensate its 70 workers for their added time. Workers say the time off is "sacrosanct", but the Labour Court has recommended that staff agree to the holy days being normal working days in the future with four days' annual leave to compensate them.

NYU Report Charges US Is Illegally Delaying Naturalization of Muslims

New York University's Center for Human Rights and Global Justice today issued a 63-page report charging that the U.S. government is illegally delaying the naturalization applications of thousands of Muslim, Arab, Middle Eastern and South Asian immigrants by profiling them and subjecting them to indefinite security checks. (Press Release). Much of the delay is caused by the government's name check process. The report concludes that relying on names and national origins as proxies for security risk is both over- and under-inclusive, does not yield timely or accurate information, diverts law enforcement resources, and legitimizes prejudice of the general public.

The full report, titled Americans on Hold: Profiling, Citizenship, and the "War on Terror" , as well as a 12-page summary briefing paper, and a one-page summary in Arabic are available online. Podcasts of interviews relating to the reports are also available (Segment 1; 2; 4; 5; 6.)

Things Get Complicated In Nashville's Attempt to Reschedule Election Runoff

Nashville's City Paper today reports that things are becoming much more complicated for Davidson County Tennessee's Election Commission that is trying to reschedule Nashville's runoff primary election in September to avoid a conflict with the Jewish holiday of Rosh Hashanah. (See prior postings 1, 2.) The dispute began when two Jewish voters filed suit in federal court seeking a schedule change. Three days after the election commission agreed to reschedule the runoff, the Department of Law of Metro Nashville & Davidson County filed a petition to intervene in the lawsuit-- purportedly on behalf of Elections Administrator Ray Barrett-- to argue that the rescheduling is illegal. It says that the Metro Charter prescribes the original date that was set for the runoff. Now elections administrator Barrett has requested that the court issue a temporary restraining order to force Metro Legal Department to drop its attempt to intervene in his name. Part of the issue is whether Barrett is a state or county employee. State law set up his position, but the county pays his salary. Metro's law department claims that the county could be faced with heavy costs if a rescheduled runoff is later challenged and a new election is required to be conducted.

En Banc 5th Circuit Finds TX Bible Monument Case Moot; But Injunction Retained

The dispute over the display of a Bible in a monument on the grounds of the Harris County (TX) court house is now moot. In an en banc decision in Staley v. Harris County, Texas, (5th Cir., April 24, 2007), the U.S. 5th Circuit Court of Appeals decided that it would not reach the merits of the Establishment Clause challenge because, just days before oral argument in the case, the county placed the monument in storage to permit renovation of the court house grounds. However (over the dissent of 2 judges) the court left the district court judgment in place. The district court had found an Establishment Clause violation and had ordered the county to remove the monument. That determination had been upheld by a 3-judge panel of the 5th Circuit. The 5th Circuit's en banc opinion also decided that plaintiff was entitled to an award of attorneys' fees. According to today's Houston Chronicle, fees at the trial level were assessed at $40,000, and plaintiff's appellate fees have reached $200,000.

Three of the 16 judges on the en banc panel dissented arguing that the case should be remanded for fact finding on whether it could reasonably be expected that the county would reinstall the monument in the future.

Americans United, the group that had filed the lawsuit originally, issued a release applauding the court's decision to leave the injunction in place. Reporting on the decision, today's Houston Chronicle says that Harris County will likely appeal to the U.S. Supreme Court.

Postal Unit Violates Establishment Clause By Displaying Religious Material

In Cooper v. United States Postal Service, (D CT, April 18, 2007), a Connecticut federal district court held that a contract postal unit (CPU)-- a private business that has contracted with the U.S. Postal Service to provide postal services to the public-- violates the Establishment Clause when it posts religious displays that proselytize or advance religion. Some 5,200 CPUs operate nationwide in locations such as and colleges, grocery stores, and pharmacies. Several are operated by groups with religious affiliations. The court held that the CPU contract with Sincerely Yours, Inc.-- a non-profit set up by Full Gospel Interdenominational Church-- does not violate the Establishment Clause. However SYI's religious displays in its CPU in Manchester, New Hampshire do. In addition to discussing the Establishment Clause, the court's decision contains an extensive discussion of the "state action" doctrine, concluding that the "SYI CPU is so entwined with the Postal Service that its conduct may be deemed state action." A report in yesterday's Boston Globe discusses the court's decision.

British Agency Issues Guides For Wearing Niqab In Court

Britain's Judicial Studies Board has recently published an update to its Equal Treatment Bench Book including "Guidance On the Wearing of the Full Veil, or Niqab, In Court". Here are excerpts:

[F]or Muslim women who do choose to wear the niqab, it is an important element of their religious and cultural identity. To force a choice between that identity (or cultural acceptability), and the woman’s involvement in the criminal, civil justice, or tribunal system (as a witness, party, member of court staff or legal office-holder) may well have a significant impact on that woman’s sense of dignity and would likely serve to exclude and marginalise further women with limited visibility in courts and tribunals....

The primary question that needs to be asked by any judicial office holder before coming to a decision is: What is the significance of seeing this woman’s face to the judicial task that I have to fulfil?

The guidelines go on to discuss the varying considerations when a woman seeking to wear the niqab is a judge, a juror, a victim or complainant, a witness or defendant, or an advocate. Articles in The Lawyer.com and the Associated Press yesterday discussed the Board's new guidelines.

Pressure Continues In Thailand For Buddhism As State Religion

In Thailand, pressure continues for drafters of the country's new Constitution to include in it a provision making Buddhism the nation's official religion. (See prior posting.) A march today by 500 saffron-robed monks-- along with nine elephants-- and a demonstration by 1400 people outside of Parliament pressed the demand, according to a report by Reuters. Thailand's Council for National Security-- the group that instituted last September's coup-- apparently is willing to accede to these demands, even though the Council's chairman is a Muslim.

Russia's Yeltsin Remembered For Mixed Legacy On Religious Freedom

Boris Yeltsin, first president of post-Soviet Russia, who died Monday left a mixed legacy on freedom of religion according to Christianity Today. Yeltsin initially lifted some restrictions on churches and laid the groundwork for the Orthodox Church to re-emerge as an important institution. (New York Times 1997 article.) However, the same law that aided the Orthodox Church-- the Law on Freedom of Conscience and Religious Associations-- has been criticized as discriminatory against newer religious groups. Only religious communities categorized as "religious organizations", instead of "religious groups", can enjoy full rights. (1997 Human Rights News.)

Suit Challenges Pricing Of Indiana's "In God We Trust" Plates

The ACLU has filed suit against the Indiana Bureau of Motor Vehicles challenging the state's practice of selling its "In God We Trust" license plates at the same prices as standard plates instead of charging the $15 administrative fee that must be paid for other specialty plates. (See prior posting.) Yesterday's report from the Associated Press says that plaintiff Mark E. Studler on whose behalf the ACLU brought the suit paid the administrative fee when he purchased specialty environmental plates. ACLU attorney Ken Falk says that waiver of the fee amounts to promotion of the religious-themed plate by the state. However Rep. Woody Burton who sponsored the legislation creating the plate says that no added fee is charged because these plates are stock items that do not generate financial support for any particular group. [Thanks to Joshua Claybourn for the lead.]

UPDATE: April 29th's Indy Star carries an interview with BMV Commissioner Ron Stiver on Inidana's controversial license plates. He says that BMV is not promoting one plate over any of the other 75 available designs.

Preacher Loses Challenge To Miami University's Speech Policy

In Gilles v. Hodge, 2007 U.S. Dist. LEXIS 29369 (SD OH, April 20, 2007), an Ohio federal district court rejected a free speech and free exercise challenge by a Christian preacher who was not permitted to speak at Miami University's Academic Quad. The state University requires sponsorship by a student organization of any speaker on campus. James Gilles, who regularly preaches at universities, was told by campus security that he could only speak on city sidewalks or streets outside of campus. The court held that the University's speech policy is content-neutral and reasonable in light of the purpose served by the limited public forum that the University has created on campus. The court also rejected claims that the University's speech policy is overbroad and vague, and that plaintiff was discriminated against. (See prior related posting.)

Cert. Denied In Case Interpreting "Ministerial Exception" To Title VII

Yesterday the U.S. Supreme Court denied certiorari in Petruska v. Gannon University, Case No. 06-985 (Order List). At issue was the 3rd Circuit's holding that the "ministerial exception' to Title VII of the 1964 Civil Rights Act can shield religious institutions not just from suits claiming religious discrimination, but also from those claiming discrimination on a ground other than religious belief. (See prior posting.) The AP yesterday reported on the case. [Thanks to Donald C. Clark, Jr. for the lead.]

Jail Permits On-Site Baptisms After Threat of Suit

A Liberty Counsel press release says that its threat to file a free exercise and RLUIPA suit caused New Mexico's Curry County Detention Center to permit baptism of prisoners at the jail. A Christian ministry is now allowed to use a mobile portable baptismal tank-- furnished by the ministry-- to baptize inmates. The ministry will also pay any additional security costs involved. Liberty Counsel's founder Matthew Staver said: "Rather than throwing up roadblocks to Christian faith and worship, prisons should welcome the positive changes that the Christian conversion brings..." [Thanks to Alliance Alert for the lead.]

Gideons In Court In Florida As Defendants and Plaintiffs

In Key Largo, Florida, both a criminal and a civil proceeding are under way in connection with the attempt of members of the Gideons to hand out Bibles on the sidewalk outside of Key Largo schools. Originally arrested in January, charges against Anthony Mirto and Ernest Simpson were dismissed, but now they are being re-charged under a rarely-invoked statute that prohibits individuals from being within 500 feet of a school without legitimate business. (FL Stats. Sec. 810.0975, School Safety Zones.) One News Now reported last week that defendants have filed motions to dismiss.

Meanwhile, the Alliance Defense Fund has filed a civil suit on behalf of another Key Largo member of the Gideons challenging the constitutionality of applying the school safety zone statute to prevent Bibles from being distributed. (Press release.) The suit (full text of complaint) claims speech, due process, equal protection and free exercise violations, as well as a violation of Florida's Religious Freedom Restoration Act.

Another NYPD Police Officer Loses Case Challenging His Placement In AA Program

A previous posting discussed three cases in which a New York federal district court dismissed complaints by New York City police officers that the Establishment Clause was violated when they were forced into an Alcoholics Anonymous program. Now another opinion released on the same day, and reaching the same result, has become available. It holds that plaintiff alleged only that the AA program was "religious based," but did not indicate whether he was forced to pray or acknowledge God, or whether there were any references to God at all in the program. The case, Herlihy v. City of New York, 2007 U.S. Dist. LEXIS 29231 (EDNY, March 30, 2007), also rejects plaintiff's claim that his speech rights were infringed when city officials retaliated against him for criticizing the NYPD order that he seek substance abuse therapy.

Settlement Says Wiccan Pentacle Can Now Be On Markers In National Cemeteries

Wiccan service personnel who are buried in national cemeteries will now be able to have a symbol of their faith-- the Pentacle-- placed on their grave markers. A settlement agreement was filed today in a Wisconsin federal district court in a suit filed by the widows of two servicemen last November. (See prior posting.) In the settlement in Circle Sanctuary v. Nicholson, the federal government agrees to add the Pentacle to the list of 38 already approved symbols representing many other religious faiths. Americans United for Separation of Church and State, representing the widows in the lawsuit, says in a release hailing the agreement that the lengthy delay in recognizing the Pentacle seems to have been motivated by bias against Wiccans. The AP reports that the government agreed to settle when it became clear that new rules being drafted by the VA would lead to the Wiccan symbol being favorably considered. Under the settlement, the VA will also pay $225,000 in attorneys’ fees and costs.

UPDATE: Here is a link to the full text of the settlement agreement. The Washington Post on Tuesday quotes AU executive director Barry Lynn as suggesting that the VA's resistance on this issue was due in part to its interpretation of remarks made in 1999 by then-Texas Governor George W Bush critical of Wicca. [Thanks to Melissa Rogers for the leads.]

Baltimore Schools Pressed To Close For Muslim Holidays

Today's Baltimore Sun reports on the decade-long attempt by Bash Pharoan, president of the Baltimore chapter of the American-Arab Anti-Discrimination Committee, to get Baltimore County schools to close for two major Islamic holidays. He argues that if schools are closed on Yom Kippur and Christmas, they also should be closed on Eid al-Fitr and Eid al-Adha. Attorney Rochelle S. Eisenberg says that state law only allows schools to close for a religious holiday if there are also "secular reasons." So if so many teachers would be absent on a holiday that classes could not be covered, schools could shut down.

Church of England To Crack Down On Bogus Marriages

In order to gain British citizenship, foreign nationals sometimes enter a "marriage of convenience". To prevent this, Britain requires that any non-British, non-EU citizen obtain a certificate of approval to marry. However, marriages performed by the Church of England are exempt from this requirement, and a growing number of immigrants have been seeking marriage by the Church. Now, according to Christian Today, the Church of England is creating new guidelines to prevent its exemption from being used for bogus weddings.

Australia Worries About Rush of Prison Conversions To Islam

In Australia's New South Wales, prison authorities have become suspicious of the large number of conversions to Islam in the high security Goulburn prison. In a World Today interview, New South Wales Minister for Justice John Hatzistergos confirmed that Goulburn authorities have begun isolating the Islamic converts because of concerns that they were being paid to pray, and were using prayer gatherings as a cover to plan a prison escape. Convicted murderer Bassam Hamzy has become a religious leader in the prison and has converted over a dozen high security prisoners. Objecting to the new measures, Brett Collins of Justice Action said that if the conversions had been to Christianity instead, the prisoners would probably be on their way to release.

Recent Articles on Law and Religion

From SSRN:
Stephen A. Newman, Evolution and the Holy Ghost of Scopes: Can Science Lose the Next Round?, (Rutgers Journal of Law and Religion, Vol. 8, No. 2, Spring 2007).

David R. Barnhizer, Reverse Colonization: Islam, Honor Cultures and the Confrontation Between Divine and Quasi-Secular Natural Law, (April 16, 2007, Cleveland-Marshall Legal Studies Paper No. 07-142).

From Bepress:
Mark C. Modak-Truran, Secularization, Legal Indeterminacy, and Habermas's Discourse Theory of Law, (2007).

From SmartCILP:
Martha Minow, Religion and the Burden of Proof: Posner's Economics and Pragmatism in Matzl v. Leininger, 120 Harvard Law Review 1175-1186 (2007).

Smita Narula, Book review (Reviewing Gary Jeffrey Jacobsohn, The Wheel of Law: India's Secularism in Comparative Constitutional Context), 4 International Journal of Constitutional Law 741-751 (2006).

Amit Patel, The Orthodoxy Opening Predicament: The Crumbling Wall of Separation Between Church and State, 83 University of Detroit Mercy Law Review 195-228 (2006).

Bishop Heading China's State-Backed Catholic Church Dies

The Washington Post reported Saturday on the death of the chairman of China's state-backed Catholic Church, 76-year old Bishop Fu Tieshan. Fu was known for his confrontations with the Vatican over who could appoint bishops in China. China has insisted on making its own choices instead of deferring to the Pope. (See prior posting.)

President Sets May 3 As "National Day of Prayer"

On Friday, President George W. Bush issued a Proclamation setting May 3, 2007 as a National Day of Prayer. The Proclamation asks "the citizens of our Nation to give thanks, each according to his or her own faith, for the freedoms and blessings we have received and for God's continued guidance, comfort, and protection." The annual Proclamation is required by federal statute, 36 USC Sec. 119.

The National Day of Prayer Task Force, headed by Shirley Dobson, wife of Focus on the Family founder and chairman James Dobson, calls its website the "official" website for the National Day of Prayer. It includes a history of the Day. Florida Baptist Witness reported last week that author and pastor Charles Swindoll is this year's Honorary Chairman and main speaker for scheduled ceremonies at the Cannon House Office Building. It says that this year's theme is "America, Unite in Prayer," which is based on 2 Chronicles 7:14.

Texas Legislature Has Faith-Based Agenda

Today's Dallas Morning News carries a lengthy article on initiatives in this year's Texas legislature to enact laws making the expression of faith more prominent in schools and government. Religion Clause has reported on a number of these previously. The bills introduced include ones on Bible classes, prayer in public schools, marriages that are harder to dissolve, abstinence education and public religious declarations (such as adding "under God" to the Texas flag pledge). Church-state separationists say that the bill on Bible classes has been improved as it makes its way through committee. Last week the Houston Chronicle reported that as amended, the classes will be optional for school districts, and teacher training and curriculum standards have been added. [Thanks to Blog from the Capital for the lead.]

Recent Prisoner Free Exercise Decisions

In Sanders v. Ryan, 2007 U.S. Dist. LEXIS 29070 (D AZ, March 19, 2007), an Arizona federal district court rejected First Amendment and RLUIPA claims by a Baptist prisoner that his rights were violated when prison officials limited him to possessing 10 audiotapes at a time, insisting that he send back his old tapes before adding new ones.

In Hawk v. Alameida, 2007 U.S. Dist. LEXIS 28740 (ED CA, April 17, 2007), a federal Magistrate Judge recommended dismissal of a Native American prisoner's objections to enforcement of prison grooming regulations against him. Plaintiff alleged first amendment and Equal Protection violations. Dismissal of his retaliation claim was recommended for failure to exhaust administrative remedies.

In Roddy v. West Virginia, (4th Cir., April 16, 2007), the U.S. 4th Circuit Court of Appeals vacated the district court's dismissal of a prisoner's free exercise claim in light of the U.S. Supreme Court's January 2007 decision in Jones v. Bock that liberalized exhaustion requirements under the Prison Litigation Reform Act.

In Muhammad/Smith v. Freyder, 2007 U.S. Dist. LEXIS 27717 (ED AK, April 12, 2007), a federal Magistrate Judge dismissed a prisoner's claim that his rights under RLUIPA were violated when he was not served the same meal as other Muslim inmates were served to celebrate the end of the Ramadan fast. The court found that prison authorities had a compelling interest in not serving meals catered from outside (here from Popeye's restaurant) to inmates confined to administrative segregation for violation of prison rules.

In King v. Bennett, 2007 U.S. Dist. LEXIS 27702 (WD NY, March 30, 2007), a federal Magistrate Judge rejected a claim by a Sh'ia Muslim prisoner that he was denied the right to free exercise of religion by virtue of the New York Department of Corrections' policy of holding joint Friday prayer services for both Shi'a and Sunni Muslims. Prison officials said that granting plaintiff's request would pressure them to provide separate services for numerous Protestant and Jewish subgroups. That in turn would increase fiscal and administrative burdens and encourage rivalries by promoting power struggles and competition for new members and converts.

NJ Rastafarian Employee Can Proceed With Discrimination Claim

Last week, a New Jersey federal district court permitted a Camden County, NJ government employee to proceed with his religious discrimination claims under Title VII of the 1964 Civil Rights Act and the New Jersey Law Against Discrimination, but dismissed his federal and state free exercise claims. Sistrunk v. Camden County Workforce Investment Board, 2007 U.S. Dist. LEXIS 28854 (D NJ, April 18, 2007), involved a claim by a practicing Rastafarian that he was dismissed as a Youth Coordinator because he wears his hair in dreadlocks. The court found that issues of fact, requiring a trial, exist on whether notice had been given to the employer about plaintiff's religious beliefs and whether his termination was because of those beliefs. The free exercise claims were dismissed because the Board's dress code was found to be a neutral rule of general application.

Minneapolis College's Foot Bath Proposal Stirs Accommodation Controversy

Minnesota's Twin Cities, already the site of conflict over accommodating Muslim cab drivers and supermarket cashiers, is facing another controversy. Minneapolis Community and Technical College, concerned over the safety of Muslim students using high sinks in its bathrooms to wash their feet before prayer, proposed installing foot baths for their use. The College saw this as a non-controversial accommodation to prevent the kind of injury that occurred last year when a student slipped and hit her head. However the American Family Association sent out an "action alert" urging its members to contact their legislators to insure that the College does not use tax money "to promote Islam while censoring Christians".

Now, the board of Minnesota's State Colleges and Universities says it will discuss creating uniform guidelines for cultural and religious accommodations at its next meeting. Also, state Rep. Jim Abeler plans to introduce an amendment to the House Higher Education bill to assure that college employees can display religious symbols at their desks. It will also provide for sending a legislative letter reminding college officials that accommodation should be equally available for all religious groups. Details appear in Wednesday's Minneapolis Star-Tribune.

Westboro Baptist Bargains Away Virginia Tech Funeral Picketing For Radio Time

Plans (previously reported here) by virulently anti-gay members of the Topeka, Kansas Westboro Baptist Church to picket funerals of the Virginia Tech victims have now been called off in a deal with a radio talk show host. The blog Straight, Not Narrow reported yesterday that church spokesperson Shirley Phelps-Roper will get 3 hours on the air with conservative radio host Mike Gallagher in exchange for calling off the funeral demonstrations. While a posting on Gallagher’s website is somewhat apologetic about the deal, Westboro describes the deal in contractual terms on its website. The church's earlier posting announcing the picketing of the first of the student funerals had said that the Virginia Tech killings were explainable as God "punishing America for her sodomite sins and for persecuting Westboro Baptist Church for warning America of her doom". Another of its postings says "The 33 Massacred at Virginia Tech died for America's sins against WBC."

Louisville Sues Over Church's Right To Land; Issue Is Rule Against Perpetuities

Over 80 years ago, the family of S. Thruston Ballard donated two parcels of land (about 2 acres) to the city of Louisville, Kentucky for use as a park, playground or for recreation. The conveyance provided that if the land ceased to be used for these purposes, it would revert to the Episcopal Diocese of Kentucky. Now the city has agreed to convey the land-- located along the Ohio River-- to developers who are building a $200 million residential and office project. The Diocese says that this agreement means that the land now belongs to the Diocese. After negotiations between the city and the Diocese broke down, the city filed a quiet title action, asking the court to declare that it has clear title to the land. The city claims that the Diocese's revisionary rights lapse long ago, and that the law does not permit the rights to continue indefinitely. Attorneys for the Diocese disagree. Apparently the dispute is over the interpretation of Kentucky's Rule Against Perpetuities. The Louisville Courier-Journal reported on the case on Thursday.

Records Subpoenaed From Congressmen In Mt. Soledad Cross Challenge

The San Diego Union-Tribune today reports that plaintiffs challenging the constitutionality of Congress' transfer of the Mt. Soledad cross to the federal government have issued subpoenas to three members of Congress. The subpoenas ask for records relating to communications with the executive branch, with any city government and with outside groups such as the Thomas More Law Center. Plaintiffs are seeking to prove that the purpose of Congress' taking of the memorial site from the city was to endorse religion. Reps. Duncan Hunter, Darrell Issa and Brian Bilbray have asked lawyers for the House of Representatives to review the subpoenas. Congressman Issa called the subpoena an attack on freedom of religion. Earlier this month, a federal court rejected the same plaintiffs' request to take depositions from Congressman Hunter and San Diego Mayor Jerry Sanders. It said that subjective motivations were irrelevant and that the request of Rep. Hunter violated the Constitution's speech and debate clause.

Nashville May Not Be Able To Avoid Holiday Conflict With Election After All

It turns out that it may be illegal for Davidson County Tennessee's Election Commission to reschedule Nashville's runoff primary election in September to avoid a conflict with the Jewish holiday of Rosh Hashanah. While the Election Commission voted for the change in response to a lawsuit challenging the conflict (see prior posting), now Metro Nashville & Davidson County's law department says that the change violates the city charter. Its lawyers say that the rescheduling can occur legally only if the state legislature acts to authorize it, according to an article in yesterday's Tennessean.

Supreme Court's Abortion Decision and Catholic Justices Discussed

Rick Garnett has an interesting posting this morning on PrawfsBlawg responding to an editorial cartoon in the Philadelphia Enquirer. The cartoon's subject is Wednesday's U.S. Supreme Court decision in Gonzales v. Carhart, the "partial-birth abortion" case. The cartoon shows the 5 Supreme Court justices in the majority, all of whom happen to be Catholic, sitting on the court's bench wearing mitres emblazoned with a cross. He criticizes the implication that the Justices in the majority voted as they did because of their religious affiliation instead of as "intelligent and engaged lawyers".

Was School Nurse's New Assignment Accommodation or Retaliation?

A lawsuit filed yesterday in Sandusky, Ohio poses the interesting question of the line between religious accommodation and retaliation against an employee because of her religious beliefs. Today's Lorain (OH) Morning Journal reports that public school nurse Maria T. Sulewski filed suit against the Erie County General Health District claiming that her change in job assignments was retaliation for her religious objections to participating in a presentation "supporting birth control, safe sex or related matters". Erie County Health Commissioner Peter Schade said that Sulewski's job reassignment was an accommodation so she would not have to deal with making sex-education presentations. Sulewski's attorney says that the presentations were a very small part of her former assignment, so that she could have been accommodated by merely having someone else fill in for her on those assignments.

Russian Orthodox Church Increasingly Identified With Russian Government

This morning's Washington Post reports on the growing influence of the Orthodox Church in Russia. Followers of other religions, especially Muslims, are concerned about the increasingly close relationship between the Orthodox church and government. Some public entities are adopting Orthodox symbols, and the teaching of Orthodox culture has been mandated in some schools this year. (See prior posting.) Critics say this is turning Orthodoxy into a state religion. The Church is increasingly being identified with a patriotism that favors a strong centralized state, and the military is using Orthodoxy to build esprit de corps. The Church has canonized Fyodor Ushakov, an 18th-century naval commander, and the Navy has adopted him as a patron saint.

Proponents Say Proposed Hate Crimes Law Protects Free Speech

Proponents of H.R. 1592, the Local Law Enforcement Hate Crimes Prevention Act of 2007, say fears by Christians that the bill will restrict religious expression opposing homosexuality are misplaced. (See prior posting.) This was the thrust of House Judiciary Committee testimony on Tuesday by George Washington University Law Professor Frederick Lawrence, who said that the Act "is aimed at criminal acts, not expression or thoughts." To assure this, drafters have included a new provision in 18 USC Sec. 249(d):

In a prosecution for an offense under this section, evidence of expression or associations of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the rules of evidence governing impeachment of a witness.

The inclusion of this provision led to endorsement of the bill by the ACLU. Additional information on H.R. 1592 is collected at the website Civilrights.org. [Thanks to Michael Lieberman for the lead.]

2d Circuit Hears Oral Arguments In Muslim Border-Search Case

Yesterday, the U.S. Second Circuit Court of Appeals heard oral arguments in Tabbaa v. Chertoff, a case challenging the lengthy detention and search by border agents of a large group of Muslim Americans returning from the 2004 Reviving the Islamic Spirit Conference in Canada. The trial court dismissed plaintiffs' complaint. (See prior posting.) Yesterday's International Herald Tribune, reporting on the oral arguments, said that the panel of judges seemed unsympathetic to arguments by appellant's New York Civil Liberties Union lawyer that the travelers were unconstitutionally singled out because they were Muslim. Department of Justice attorney Lewis Yelin said that the government has now changed its procedures for mass inspections at the border so that a senior supervisor must be involved where a person is detained for more than two hours.

Developments in Portland and Spokane Catholic Church Bankruptcy Cases

On April 17, U.S. Bankruptcy Judge Elizabeth Perris formally approved the bankruptcy reorganization plan of the Archdiocese of Portland, Oregon. (See prior related posting.) In a surprise development, all remaining claims against the Archdiocese were settled as part of the reorganization plan, according to a Catholic News Service report yesterday. Checks will go out to priest sex-abuse victims next month, financed in part by a $40 million loan from Allied Irish Bank. No parish or school properties will be sold off to finance the $75 million total settlement. In mid-May the Archdiocese will open personnel files of accused clergy.

Also on April 17, parties in the bankruptcy reorganization proceeding of the Diocese of Spokane, Washington filed papers agreeing to a $48 million settlement of clergy sex abuse claims. It is expected that U.S. Bankruptcy Judge Patricia Williams will approve the settlement at an April 24 hearing.

Utah Court Dismisses Most Claims Against LDS Church Over Ordination Of Sons

In the Mormon Church, children at age 12 are generally receive priesthood ordinances. Michael Gulbraa, who had legal custody of his two sons-- improperly taken to Japan by his former wife-- asked the LDS Church not to proceed with the ceremony for his sons without his permission. The Church ignored his request and proceeded with the ceremony "for the children's benefit". The father sued for damages and injunctive relief.

In Gulbraa v. Corporation of the President of the Church of Jesus Christof Latter-day Saints, (UT Ct. App., April 19, 2007), a Utah Court of Appeals dismissed the father's claims for breach of contract, fraud, and negligent misrepresentation, and his request for injunctive relief. It said that adjudicating the claims would excessively entangle the court in the Church's religious operations, the interpretation of its teachings, the performance of its ceremonies, or the governance of its affairs. An award of damages would require the court to place a monetary value on participation in religious experiences. However, the court permitted the father to proceed with his claim for intentional infliction of emotional distress. Today's Salt Lake Tribune reports on the decision. (See prior related posting.)

British Employment Discrimination Amendment About To Become Effective

An amendment to the definition of "religion or belief" in Britain's Employment Equality (Religion or Belief) Regulations 2003 takes effect April 30, according to Workplace Law. The amendment changes "any religion, religious belief or similar philosophical belief" to "any religion, or religious or philosophical belief". The removal of the word "similar" raises the question of whether discrimination on the basis of political belief now falls under the anti-discrimination prohibitions.

Westboro Baptist Church Picketers Target Virginia Tech Funerals

The Topeka, Kansas based Westoboro Baptist Church, known for anti-gay protests at funerals of military personnel, posted a press release on its website Tuesday indicating that its members plan to picket memorial services for the 32 individuals killed at Virginia Tech on Monday. The release said in part: "WBC to picket memorial services for 32 students massacred at Virginia Tech—in religious protest and warning: God is punishing America for going the way of ancient Sodom and Gomorrah…." The only Virginia Tech victim currently on its website’s listing of upcoming picketing is the April 21 funeral of student Ryan Clark, which is scheduled to take place in Evans, Georgia. A number of states (overview), including Georgia (O.C.G.A. § 16-11-34.2), have enacted laws to restrict picketing at or near funerals. [Thanks to Towleroad blog for the lead.]

Officials Accommodate Religious Burial Needs Of Virginia Tech Victim

The blog Yeshiva World on Tuesday carried an interesting account of the accommodations made by Virginia state officials so that Professor Liviu Librescu, one of the victims of the Virginia Tech mass shooting, could be buried in accordance with Jewish law. Librescu was the Romanian-born Holocaust survivor who was shot while barring his classroom door to permit his students to escape. Rabbis in the United States, contacted by Librescu's family in Israel, told the Virginia medical examiner's office that autopsies were inconsistent with Jewish law. The medical examiner agreed to merely use x-rays and a minimally invasive procedure to remove bullets. Also Jewish funerals are generally conducted promptly after death. Bad weather prevented immediate flight of the body to New York for ritual handling before burial, so state police all along the route from New York to Virginia provided a police escort for the vehicle that drove to pick up the body. On Wednesday, President Bush specifically mentioned Librescu's courage during a presidential speech at the U.S. Holocaust Museum. [Thanks to Gerald Katzman for the lead.]

Some Amish Farmers Protest Wisconsin's New Cattle ID Requirements

Today's LaCrosse (WI) Tribune reports that some Amish farmers object on religious grounds to the state's new livestock premises identification requirements that are set to take effect on May 1. The objectors say that the Bible prohibits them from buying and selling animals that are numbered. They consider the IDs the "mark of the beast." The U.S. Department of Agriculture is promoting voluntary premises registration, but Wisconsin is the first state to mandate it. The state's Department of Agriculture, Trade & Consumer Protection board will meet Wednesday to discuss the problem. (See prior related posting.)

Christians Fear New Federal Hate Crimes Bill Will Stifle Their Religious Speech

On Tuesday, the U.S. House Judiciary Committee held hearings on H.R. 1592, the "Local Law Enforcement Hate Crimes Prevention Act of 2007". The Act, among other things, would expand the current hate crime ban to include crimes motivated by the victim's sexual orientation, gender, gender identity or disability. One of the witnesses testifying against the bill (text of statement) was Brad W. Dacus, President of the Pacific Justice Institute. He told the committee that there is an "alarming potential, as evidenced by actual cases and situations, for well intentioned hate crimes legislation to squelch free speech, particularly religious free speech." Yesterday's Christian Post expanded on that theme in an article that focused on concerns that the bill will prevent Christians from speaking out in opposition to homosexuality or disagreeing with another person's religion.

Meanwhile, today's Advocate reports that across from the capitol, hundreds of clergy from all over the country who support passage of the new hate crimes act joined in a rally. They were led by Bishop Carlton Pearson of Tulsa, Oklahoma.

Ghana EPA Targets Noise Pollution From Charismatic Churches

Ghana's Environmental Protection Agency has become concerned with the harmful effect of noise on health and hearing ability. Today's Accra Mail says one significant source of noise pollution that concerns EPA is Ghana's charismatic churches. Ten complaints have been filed so far this year against churches that play loud music, shout, sing loudly and dance all night. Threatening eventual court action, a senior EPA official said that instead of heeding EPA's directives, some of these churches' leaders call the EPA office to insult and curse officials while their "prayer warriors" pray in the background. April 16 was Noise Awareness Day in Ghana.

California's Proposed Student Civil Rights Act Gives Broad Definition to "Religion"

On Tuesday, the California Senate Judiciary Committee approved by a vote of 3-2 and sent to the full Senate for consideration SB 777, the California Student Civil Rights Act. Press attention has focused on the bill's prohibition against discrimination on the basis of sexual orientation or gender identity in schools receiving public funding or whose students receive student financial aid (Equality California press release). There is an exception for religiously-controlled schools where the requirements would be inconsistent with their religious tenets.

Another provision in the bill has gone largely unnoticed. While current California law prohibits religious discrimination in schools, SB 777 for the first time adds a broad definition of "religion" for this purpose. Proposed Sec. 212.3 of the Education Code provides that:

"'Religion" includes all aspects of religious belief, observance, and practice and includes agnosticism and atheism.

Reform Jews Charge Israel's Former Chief Rabbi With Libel

Yesterday in Israel, members of the Reform Jewish movement (including Holocaust survivors) filed a libel complaint with police officials against the country's former Sephardi Chief Rabbi, Mordechai Eliyahu. In a radio interview with the station Kol Haemet on the eve of Holocaust Memorial Day, Eliyahu blamed the creation of Reform Judaism in Germany for the death of 6 million Jews in the Holocaust. YNet News reports Eliyahu explained that while the victims were innocent, "the wrath of God does not distinguish between the righteous and the evil ones". Under Israeli law, a civil action cannot be filed against Eliyahu because his statements were made against an entire group, not one individual. Instead, a criminal complaint had to be filed with the police.

Illinois School's Ban On Anti-Gay Slogan Upheld

On Tuesday, an Illinois federal district court upheld a school's decision to limit the manner in which two evangelical Christian students could express their opposition to homosexuality as others in the school observed the "Day of Silence" to protest anti-gay discrimination. In Zamecnik v. Indian Prarie School District #204 Board of Education, (ND IL, April 17, 2007), the court refused to enjoin a Naperville, Illinois high school from banning T-shirts, buttons and stickers reading "Be Happy, Not Gay". The school took the position that positive statements, such as "Be Happy, Be Straight" would be permitted, but that negative statements violate school rules against derogatory or discriminatory statements against others. The Associated Press reported on the decision yesterday. [Thanks to How Appealing for posting the decision.]

Tajikistan Government's Enforcement Efforts Rile Muslims

In Tajikistan, officially a secular country with a population that is 90% Muslim, several developments indicate tensions between the government and Islam. Yesterday's International Herald Tribune reported that Tajik school authorities are introducing a new dress code that reinforces the ban on wearing the hijab (Islamic head scarf). Meanwhile, IRSN reports on a new enforcement effort aimed at unregistered mosques in the capital city of Dushanbe. The move is aimed at ridding the country of Muslim extremists, but it threatens to alienate moderate Muslims as well. Adding to the tensions was a raid in mid-March by police on Dushanbe's main mosque to enforce the requirement that children under 18 must be in school rather than attend Friday prayer services.

Minneapolis Airport Adopts Sanctions For Cabbies Refusing Service

On Monday, the Minneapolis-St. Paul Metropolitan Airports Commission formally adopted its staff's prior recommendation that a 30-day license suspension be imposed on any cab driver who refuses to transport a passenger for reasons other than safety concerns. A second offense would lead to a 2-year suspension. The new rules will primarily impact Muslim cab drivers who have refused to transport passengers carrying liquor. Developments are reported by yesterday's Minneapolis Star-Tribune. [Thanks to Blog from the Capital for the lead.]

EU Compromise On Religious Hatred Ban Reached

European Union justice ministers meeting in Luxembourg on Thursday gave in to Britain's objections and narrowed a proposed EU ban on incitement to religious hatred so that it will apply only if the incitement has racist intent. Reuters reports that this change assures that religion could still be criticized where the criticism is not racially motivated. However individual countries will still be permitted to punish religious hatred more broadly as well as to enforce individual laws against Holocaust denial.

UPDATE: A UPI report says that the EU's draft proposal has been worded so that it includes a ban on denying the Nazi Holocaust of World War II and the genocide in Rwanda in 1994. The European Jewish Press says that the proposal bans: "publicly condoning, denying, or grossly trivialising crimes of genocide, crimes against humanity and war crimes" as defined by international crime courts and in the charter of the Nuremberg court.

National Episcopal Church Gets Only Limited Intervention In Property Dispute

In Diocese of Central New York v. St. Andrews Episcopal Church, (NY S.Ct., April 10, 2007), a New York trial court permitted only limited intervention by the Domestic and Foreign Missionary Society of the Episcopal Church in a property dispute between a break-away Syracuse church and its parent Diocese. DFMS failed to demonstrate that it had a direct legal interest in the property of St. Andrews church. However it did show that there were common issues of law or fact in this case and DFMS's claim of an express or implied trust over the property of St. Andrews. In limiting the scope of the intervention, the court required that DFMS be represented by the same attorneys as are representing the Diocese and that DFMS may not conduct separate discovery without permission of the court. Transfigurations blog says that this is the first case in the country where the Episcopal Church was granted only limited participation in the litigation between a Diocese and a local parish.

City-Backed Financing For St. Louis U. Arena OK Under State Constitution

City-backed financing for St. Louis University's new basketball arena survived a state constitutional challenge yesterday as the Missouri Supreme Court held that the Jesuit-backed University is not "controlled by a religious creed" as that term is used in Art. IX, Sec. 8 of Missouri's constitution. In St. Louis University v. The Masonic Temple Association of St. Louis, (MO Sup. Ct., April 17, 2007), the court held that the constitutional ban on appropriating funds to support any educational institution controlled by any religious creed was not violated by the "tax increment financing" provided by the city of St. Louis. A mere historical link to a particular religion does not amount to control. Here, while the SLU's president is a Jesuit, "he is bound by the decisions of an independent, lay board of trustees". The religious component does not dictate the institution's oversight and administration. The court also rejected federal establishment clause challenges to the financing.

Judge Teitelman, dissenting, argued that a determination of religious control should be made only after the facts are developed at trial, rather than at the summary judgement stage as the majority does here. He also argued that, contrary to the majority's holding, an institution could be controlled by a religious creed even if proselytism is not one of its primary purposes. The Associated Press reported on the decision yesterday. (See prior related posting.)

10th Circuit Rules Largely In Favor of Summum "7 Aphorisms" Monuments

In decisions yesterday, the U.S. 10th Circuit Court of Appeals dealt with requests by members of the Summum faith that they be permitted to put up a display of their Seven Aphorisms in parks in two separate Utah cities. In each case, the city park already had a Ten Commandments display in it. Today's Salt Lake Tribune reports on the decisions.

In Summum v. Pleasant Grove City, (10th Cir., April 17, 2007), the court of appeals held that Summum was entitled to a preliminary injunction permitting it to erect its monument in a city park that already featured a number of displays relating to the city's pioneer history as well as a 10 Commandments monument donated by the Fraternal Order of Eagles. Holding that a park is a traditional public forum, the court rejected the city's attempt to restrict park monuments on the basis of their historical relevance to the city, saying that the city offered no reason why this was a "compelling" interest that would permit content based restrictions on monuments. While the city might create content-neutral restrictions on aesthetic grounds, it has not done so here.

The second case, Summum v. Duchesne City, (10th Cir., April 17, 2007), was more complicated. Here, apparently the only display already in the city's park was a 10 Commandments monument, and the city attempted to avoid Summum's request by transferring the land under the Ten Commandments display to a private party. Initially the land was transferred to the Lion's Club, and-- after questions were raised about the propriety of that transfer-- the land was re-transferred to private individuals. Also a fence was put up around the Ten Commandments with a sign saying that the land did not belong to the city. Summum requested transfer to it of a similar size piece of land in the park.

The court held that the issue here is not whether the city is endorsing the Ten Commandments in violation of the Establishment Clause, but rather whether the Ten Commandments monument remains a part of the park as a "public forum". Finding that the initial land transfer to the Lion's Club was invalid under state law because of lack of consideration and conflict of interest (the mayor was president of the Lion's Club), the court held that the land remained part of the public forum after that purported transfer. That being the case, the city needed a compelling interest to reject Summum's request to build its monument in the same public forum. It failed to demonstrate that interest.

The court then remanded the case to the trial court to determine if the second transfer of the property under the Ten Commandments to private parties was valid. After deciding that, the district court is to decide the "forum status" of the park and decide whether Summum is entitled to an injunction. (See prior related posting.)

Custody Decision May Not Consider Parent's Religious Beliefs On High Schooling

In Gove v. Petty, (WI Ct. App., April 17, 2007), a Wisconsin state appellate court reversed a trial court's decision that had removed a high school age child, Basyl, from custody of her Amish mother. The trial court had transferred custody on health and education issues to Basyl's father, with the mother retaining limited joint custody rights. The father wanted the child to receive a traditional high school education, while the mother, based on her Amish beliefs, had agreed only to home school the child. The court of appeals held that the trial court should not have considered the parents' different views on schooling Basyl in making its custody decision. The appellate court said: "we do not believe Basyl’s placement or custody could be changed on the singular basis that her sole legal custodian practices a religion that rejects higher education." The court remanded the case to the trial court for a determination using only permissible factors. Yesterday's Appleton (WI) Post-Crescent covers the decision. [Thanks Ann Althouse to via Religionlaw listserv for the lead.]

French Court Finds Favorable Lease To Mosque Violates Church-State Limits

In France, the Marseille administrative court on Tuesday ordered renegotiation of a lease of city land, finding that its mere 300 Euros per year rent amounted to a disguised subsidy of religion that violates French law on separation of church and state. The order came in a suit brought by the right wing National Front (FN), the Movement for France (MPF) and the National Republican Movement (MNR), challenging the lease for land on which a Great Mosque will be built in Marseille. France 24 reported yesterday that city officials promised a revised lease would be submitted to city council in June. Meanwhile, funds to actually build the mosque must be raised from private sources, with foreign funding limited to 20% to 30% of the total.

British Muslim Teacher Loses Appeal On Wearing Veil [Corrected]

As previously reported, on March 30 Britain's Employment Appeal Tribunal handed down its decision in Azmi v Kirklees Metropolitan Borough Council, an appeal by a Muslim school teacher who had been suspended for refusing to remove her veil when working directly with children. The full opinion is now available online. The Tribunal found that the teaching assistant had not been discriminated against directly on the ground of religion or belief under Britain's Employment Equality (Religion or Belief) Regulations or Council of Europe Directive 2000/78/EC. While she had been discriminated against indirectly, the discrimination was not unlawful because it was proportionate in support of a legitimate aim. (See prior postings 1, 2.) Today's London Times published a summary of the decision.

Religion Clause Is 2 Years Old Today !

Today is the second birthday of Religion Clause blog. As I blow out the candles, I want to thank all of you, my readers, for your interest and for the leads many of you have furnished. I am particularly pleased with the broad spectrum of professionals in the fields of church-state relations, religious freedom and civil rights that have become regular readers. One of my goals was to create a resource for individuals on all parts of the religious and political spectrum. From the e-mails I receive, I think that I have had some success in this regard.

I am pleased to announce that in addition to its availability directly through the Internet and in RSS feeds, Religion Clause is now also featured as a part of Newstex.

A birthday is always a time to reassess. I invite you to let me know about the features of Religion Clause that you like and dislike and any changes you would suggest. There are several issues I have considered, and I particularly invite your comments on these. Should the mix between U.S. and foreign coverage be changed? Should there be changes in the typical length or number of postings? Is the weekly summary of prisoner cases useful; would a listing of the cases without summaries be just as useful?

Religion Clause was created because there was no central news source for legal and political developments on church-state and religious freedom issues. Should Religion Clause keep its news focus, or should it move more toward analysis and opinion? Should I bring in guest bloggers to do some of that? I invite your comments either as a Comment to this posting or by e-mail.

Thanks again especially to those of you who read this blog regularly. Please continue to recommend it to others who you think may be interested in its coverage.

Russia Lessens Reporting Burdens for Churches

Forum 18 reported today that "following sustained lobbying by religious representatives, the [Russian] government has markedly simplified the financial accounting procedure for religious organisations demanded by the so-called NGO Law." Churches had complained about the burdens that the new law created. (See prior postings 1, 2.)

Detailing the changes, Forum 18 in a separate report said that the new rules merely ask religious groups about the sources of their income-- including whether funds are received from Russian or foreign organizations or foreign governments; but not about funds from Russian individuals or the Russian government. Groups now do not need to list their meetings and conferences, or number of participants, nor must they describe their advertising of their activities. Religious organizations still must supply information about members belonging to their governing body.

NY Restaurant Sues Kosher Supervisor Over Charges Published On Blog

A well-known kosher steak house in Manhattan has filed a $10 million lawsuit against its former masgiach (kosher standards supervisor) for accusing the restaurant of failing to meet kashrut (kosher) standards. Yesterday's New York Post reports that the restaurant, Le Marais, has sued its former employee Jacky Bitton, who was famous in his own right previously. Bitton was a well-known drummer in a French rock band who later became religiously observant. More recently, Bitton and one of his sons was attacked in the 1991 Crown Height riots. After Bitton quit his job last month, he posted entires on his blog accusing the restaurant of permitting non-kosher food in its kitchen and accused its chef of being a "Jew hater". The restaurant says Bitton was too strict in applying rules of kashrut. Bitton is under a gag order from the Brooklyn trial court where a hearing is scheduled next week. Here is a copy of the court's order, courtesy of The Canonist blog.

Firing Over Threatening Letters Is Not Relgious Discrimination

In Carmack v. National Railroad Passenger Corp., (D Mass, March 22, 2007) a Massachusetts federal judge, adopting a Magistrate's recommendation, dismissed an unusual religious discrimination claim filed by a former Amtrak employee. In a conflict with his union representative, Joseph Carmack had written a series of documents described as "Letters from Hell". The rambling letters, referring to "Lucifer", included a paraphrase of parts of Shakespeare's Hamlet. The letters were viewed as a threat under Amtrak's violence policy. Carmack was dismissed after he refused to submit to psychiatric examination.

Among Carmack's many claims challenging his firing were claims alleging religious discrimination under Title VII and violations of his First Amendment rights. He claimed that his letters, which were the underlying basis for his dismissal, expressed his belief in spiritual forces and used "standard cultural and religious expressions of God and ... Satan or Lucifer ... to refer to ... spiritual forces in which Plaintiff believes."

The court dismissed Carmack's Title VII and state employment discrimination claims for failing to exhaust his administrative remedies. It went on to hold that on the merits of both his statutory and First Amendment claims, Carmack had not shown that his letters involved any religious practice or that he was dismissed because of his religion.

Canadian Street Preacher Ignoring Ban On Loudspeakers

In Calgary, Alberta, street preacher Art Pawlowski is battling city officials who have issued him a permit to preach in a city park only if he does not use loud speakers. CBC News yesterday reported that the Court of Queens Bench earlier this month ruled the permit restrictions valid. Pawlowski, however, is ignoring them, using amplification equipment when he preaches three times a week at a small green space across from a homeless shelter. Police have given Pawlowski more than $400 in tickets so far for various violations.

Hindu Nationalists Protest New Indian Coin Design

Asia News reported earlier this week that Hindu nationalists are demanding that the Reserve Bank of India withdraw a new 2 rupee coin that pictures men from four different religions coming together and raising their hands in unity. Fundamentalists in the state of Uttar Pradesh say that authorities replaced the map of India that was previously on the coin with the new design that looks like a Christian cross. [Thanks to International Christian Concern for the lead.]

25th Anniversary of Canada's Charter of Rights and Freedoms Marked

Today is the 25th anniversary of Canada's adoption of its Charter of Rights and Freedoms that protects many individual rights, including freedom of conscience religion. Marking the anniversary, former prime minister Jean Chretien spoke last night at the University of Ottawa, according to a report by CanWest News Service. Chretien was justice minister in the Trudeau cabinet when the Charter was adopted. While Canada had earlier adopted a Bill of Rights, it was the Charter that gave courts the power to strike down legislation that violated protected rights.

President Attends Catholic Prayer Breakfast; Supports School Vouchers

On Friday, President Bush spoke at the annual National Catholic Prayer Breakfast held in Washington. (Full text). He talked about Charles Carroll, the only Catholic to sign the Declaration of Independence, saying: "In 1776, Carroll was one of the wealthiest men in America. But because he was a Catholic, he could not vote or hold public office in his native Maryland." Bush's remarks urged continued respect for a "culture of life"; support of faith-based institutions; support for school choice; and support for comprehensive immigration reform.

Friday afternoon, President Bush further promoted school choice by meeting at the White House with leaders of parochial schools and parents whose children attend Catholic schools. In his remarks after the meeting, he urged expansion to the rest of the nation of the D.C. Opportunity Scholarship program, as well as reauthorization of the No Child Left Behind Act.

Court Analyzes Elements of RLUIPA vs. Free Exercise Claim

A recent decision by Wisconsin federal district judge Barbara Crabb contained an interesting discussion of an issue that presents itself in many religious rights cases brought by prisoners-- the difference between the elements of a free exercise claim and a claim under the Religious Land Use and Institutionalized Persons Act. The case is Perez v. Frank, (WD WI, April 11, 2007), granting a Muslim prisoner summary judgment on claims that various correctional officials violated his rights when they prevented him from attending learning sessions, Friday prayer and group prayer during festivals; prevented him from eating dates during Ramadan and having Halal foods during festivals; and deprived him of a digital Qur'an player. Summary judgment was denied on various other claims. Here is Judge Crabb's analysis:

Although both the free exercise clause and RLUIPA protect religious "exercise," each defines religious exercise in a slightly different way. Under RLUIPA, a "religious exercise" is "any exercise of religion, whether or not compelled by, or central to, a system of religious belief."... In other words, RLUIPA protects individual acts of piety, regardless of their centrality. By contrast, the free exercise clause is concerned with the macrocosm of belief: so long as a believer's ability to freely practice his faith (rather than engage in all possible expressions of his faith) is not substantially burdened, the free exercise clause is not violated (hence the requirement that a belief be "central" before it can fall within the ambit of the free exercise clause....

Despite the technical differences between the types of religious exercise protected by each law, courts frequently fail to differentiate between the central practices protected by the free exercise clause and the wider variety of practices protected by statutes such as RLUIPA. The reason for this is fairly apparent. Courts are poorly positioned to decide which religious practices are "central" to any given faith tradition or any given believer; therefore, increasingly free exercise jurisprudence has emphasized deference to individuals' professed beliefs, so long as there is no reason to doubt their sincerity.....

So what, then, is the practical difference between a free exercise claim and a claim arising under RLUIPA? It appears that the answer is "not much," at least insofar as the "substantial burden" requirement is concerned.

(See prior related posting.)

Recent Publications On Law & Religion, Church-State

From SSRN:
David H. Schraub, When Separation Doesn't Work: The Religion Clauses as Anti Subordination Principles, (Dartmouth Law Journal, Vol. 5, Spring 2007).

Robert Fisher McCarthy, The Incompatibility of Free Speech and Funerals: Proposing a Grayned-Based Justification for Funeral Protest Statutes, (Ohio State Law Journal, Vol. 69, Forthcoming).

From SmartCILP:
Judith D. Fischer & Chloe J. Wallace, God and Caesar in the Twenty-First Century: What Recent Cases Say About Church-State Relations in England and the United States, 18 Florida Journal of International Law 485-515 (2006).

Symposium: Islamic Business and Commercial Law. Articles by Theodore Karasik, Frederic Wehrey, Steven Strom, Shaykh Yusuf Talal DeLorenzo, Ayman H. Abdel-Khaleq, Christopher F. Richardson, Michael J.T. McMillen, Umar F. Moghul, Rushdi Siddiqui, Nazih Hammad, Andreas Junius, Kilian Balz, Robert R. Bianchi, Walid S. Hegazy and Haider Ala Hamoudi. 7 Chicago Journal of International Law 379-622 (2007).

Symposium: Can God and Caesar Coexist? Balancing Religious Freedom and International Law by Robert F. Drinan, S.J., 45 Journal of Catholic Legal Studies 1-114 (2006).

Patrick McKinley Brennan, Harmonizing Plural Societies: The Case of Lasallians, Families, Schools--and the Poor, 45 Journal of Catholic Legal Studies 131-175 (2006).

Thomas J. Paprocki, Presumption As a Matter of Law and Eternal Salvation, 45 Journal of Catholic Legal Studies 177-182 (2006).

Recent Book:
James Serritella, Thomas Berg, Cole Durham, Edward Gaffney, Craig Mousin, eds., Religious Organizations in the United States: A Study of Identity, Liberty and Law, (Carolina Academic Press, 2006).

Broadway Revival Again Focuses Attention on Evolution

The debate over teaching of evolution in American schools is now the focus of Broadway as a revival of "Inherit the Wind" opened last Thursday. The play, a fictional re-enactment of the 1925 Scopes "monkey" trial, was first produced in 1955. It was written as a response to McCarthyism. Reuters says that reviews of the revival were generally positive.

Recently Available Prisoner Free Exercise Decisions

In Buckley v. Alameida, 2007 U.S. Dist. LEXIS 26864 (ED CA, April 11, 2007), a California federal district court screened a number of claims by a Black Orthodox Jewish prisoner. The court determined that plaintiff could move ahead with claims against certain of the defendants for their confiscation of his kosher food package; for severe retaliation because of an argument growing out of confiscation of the package; and for disappearance of his menorahs and candles. He was not permitted to move ahead with other claims, including one growing out of threats and anti-Semitic slurs.

In Mayweathers v. Hickman, 2006 U.S. Dist. LEXIS 95882 (SD CA, Dec. 26, 2006), a California federal Magistrate Judge held that a prisoner's allegation that he was denied his religious diet tray for one week did not allege a substantial burden on his free exercise of religion under RLUIPA.

In Williams v. Dankert, 2007 U.S. Dist. LEXIS 26975 (ED WI, April 11, 2007), a Wisconsin federal Magistrate Judge rejected a prisoner's RLUIPA claim. Plaintiff alleged only that deprivation of his religious material denied him access to the courts. Thus there was no support for the claim that this was done to prevent him from exercising his religion.

In Ruiz v. Early, 2007 U.S. Dist. LEXIS 27206 (ED CA, March 28, 2007), a California federal Magistrate Judge found that plaintiff prisoner's general complaints about prison grooming standards did not support a cognizable free exercise claim.

In Moynihan v. Arpaio, 2007 U.S. Dist. LEXIS 27331 (D AZ, April 11, 2007), an Arizona federal district court dismissed an inmate's claim for failure to exhaust his administrative remedies. One of the claims was that his free exercise rights were vioalted when officials refused to provide him a vegetarian diet.

In Harrison v. Laffin, 2007 U.S. Dist. LEXIS 27399 (ED LA, March 22, 2007), a Louisiana federal Magistrate Judge recommended dismissal of a prisoner's claim that his free exercise rights were violated when he was unable to attend church because he was in 23-hour lockdown.

Washington State Mandates Pharmacies Fill All Prescriptions

The Washington state Board of Pharmacy on Thursday voted unanimously to adopt a rule requiring drug stores to fill all lawful prescriptions. The AP says the rule means that pharmacists with moral, religious or other personal objections to filling a prescription can opt out only if a co-worker can fill the prescription at the time it is presented. Pharmacists are also prohibited from destroying prescriptions or harassing patients, and must order new supplies of a drug if it is out of stock. The Washington State Catholic Conference, among others, opposes the new rule. It may require pharmacists to violate their conscience in dispensing drugs such as the Plan B "morning after" birth control pills. (See prior related posting.)

British Teachers Oppose Expansion Of Faith Schools

In Britain, NASUWT, the largest union representing teachers and head teachers in the UK, adopted a resolution at its recent convention opposing government plans to create a new generation of faith schools funded by the government. The resolution warns of "social fragmentation" that might result from more faith schools. One delegate, Brian Williams from Cardiff, said that parents often pretend to be religious merely to get their children into good Church of England or Roman Catholic schools. This Is London, reporting on NASUWT's annual conference, says that delegates stopped short of calling for the closing of existing faith schools.

IL Proposal On Limitations In Abuse Cases Opposed by Catholic Conference

A column in Saturday’s Peoria (IL) Journal Star discusses Illinois SB 1733, a bill introduced in February in the Illinois legislature to create a one-time two-year window in which childhood sexual abuse cases could be filed even though pre-existing statutes of limitation have run. At March hearings on the bill [bill status], the only organization to testify against it was the Catholic Conference of Illinois. CCI executive director, Robert Gilligan said that the bill gives false hope to victims because the Illinois constitution bans the revival of retroactive claims.

Report Issued On Blasphemy Cases In Pakistan

Pakistan's Daily Times says that the National Commission for Justice and Peace—a group formed by Pakistan's Catholic Bishops’ Conference-- has issued a report on blasphemy prosecutions in Pakistan. It found that 90 blasphemy cases were recorded in 2006, of which only 48 were registered with the police. Of those, 27 of the accused were Muslims, 10 were Christians and 11 were Ahmadis. Only 5 cases have been decided by the courts in 2006—with three resulting in life sentences. NCJP executive secretary Peter Jacob said that the blasphemy law is being exploited by some to create tensions in society.

School Baord Candidate Says Husband's Suit Will Be Dropped If She Wins

Four years ago, Marion Illinois parent Robert Marsh sued school superintendent Wade Hudgens and the Marion school board for allowing the schools to endorse religion. The suit claimed that Superintendent Hudgens organized school assemblies featuring the evangelical pastor of Ronnie Hill Ministries in Fort Worth, Texas. The lawsuit claims that the assemblies were going to be used to hand out tickets to evening pizza parties at a church, during which students would have to listen to a sermon by Pastor Hill. The school board has spent $167,000 so far defending the lawsuit. The case was dismissed earlier this year for lack of evidence, but Mash has filed a motion for reconsideration. Now Marsh’s wife is running for school board in next Tuesday’s election. Jan Bowman-Marsh says that if she wins, her husband will drop his lawsuit. These developments were reported by The Southern yesterday.

Uzbekistan Blocks Russian Religious News Website

Forum 18 last week reported that in Uzbekistan, the National Security Service—the country’s secret police—have blocked access in the country to one of Russia’s leading religious websites. While Uzbekistan has blocked many foreign-based website that carry independent news of developments in Uzbekistan, its blocking of the Portal Credo site seems to be the first time it has banned a site devoted to religious news. The blocked website posts almost entirely Russian language items.

Turkish Demonstrators Fear Inroads On Secular State

In Ankara, Turkey on Saturday, a crowd estimated variously at 200,000 to 300,000 marched to protest the potential loss of secularism in Turkey if the ruling AK Party chooses Prime Minister Tayyip Erdogan as its presidential candidate. Because of Erdogan’s Islamist roots, a group of secular generals, judges and university rectors fears he would undermine the strict secular nature of the country. They have similar fears about the potential candidacy of parliament’s speaker, Bulent Arinc. Erdogan denies he has an Islamist agenda. While the post of President in Turkey is largely ceremonial, under current President Ahmet Necdet Sezer the office has strongly defended the secular tradition of the overwhelmingly Muslim country. Developments are reported by Reuters and the Associated Press.

Texas City Council Urges School Prayer

In Brazoria, Texas, city council last Tuesday passed a resolution calling for prayer to be a part of public schools and urging other Texas cities to pass similar resolutions. Today’s Houston Chronicle quotes Brazoria mayor Ken Corley as saying: "My goal is to just bring God back into the lives of these kids through our school system." Houston attorney and ACLU member, Randall Kallinen, said that there is nothing wrong with the resolution so long as it is merely a non-binding expression of Council's opinion.

Mojave Desert Cross Case Argued Before 9th Circuit

Last Monday, the U.S. Ninth Circuit Court of Appeals heard oral arguments in Buono v. Kempthorne, a case involving the constitutionality of a transfer of federal lands to private parties in order to preserve the Mojave Desert Cross war memorial. The cross was originally put up by the Veterans of Foreign Wars. When it was challenged in litigation, the federal government took steps to transfer the public land on which the cross sits to private ownership. An audio recording of oral argument in the case is available online. The oral arguments are covered by stories in the Gospel Herald and One News Now.

Church Sues Florida Town Under RLUIPA

In Southwest Ranches, Florida, Christ Covenant Church has filed a lawsuit alleging that the town violated its religious freedom rights and the Religious Land Use and Institutionalized Persons Act when it denied the church a zoning permit. Today’s South Florida Sun-Sentinel reports that the dispute involves the church's plans to build a 2000 sq. ft. hall next to its existing sanctuary. The hall would be used for bible study, weddings, funerals and meetings. Council said it rejected the application because the site had insufficient parking.

U Wisconsin-Superior Settles Suit Brought By Christian Student Group

Last week, a Wisconsin federal district judge approved a settlement by the University of Wisconsin- Superior of a suit brought against it by the Inter-Varsity Christian Fellowship. The University had attempted to apply its non-discrimination rules to deny formal recognition to the group which required its officers to sign a statement affirming their Christian beliefs. IVCF claimed the refusal violated its First Amendment rights. In the settlement agreement, the University agrees to recognize IVCF as a student organization, give it some $1500 in student fees for its activities for the year, and to pay $20,000 in legal fees to the Alliance Defense Fund that represented IVCF in the lawsuit. Today’s Winona Daily News, reporting on the settlement, says that the University’s student government agreed several months ago to recognize IVCF. ADF also reports on the settlement.