Cobb County, GA Wins On Most of Its Prayer Practices

The Associated Press reports that a Georgia federal district judge has upheld the way in which the Cobb County, Georgia, Board of Commissioners chose clergy to deliver invocations at Board meetings. It invited clergy from a diverse set of religious organizations. However the court found that the Cobb County Planning Commission violated the Establishment Clause in 2003 and 2004 when, in choosing clergy to deliver opening prayers, a deputy clerk excluded Jewish, Muslim, Jehovah’s Witnesses and Mormon clergy. Since those exclusions were halted before the lawsuit was filed, the court refused to issue an injunction and merely awarded nominal damages of $1. The court refused to ban clergy delivering invocations from using sectarian prayers, so long as a wide variety of clergy were invited.

UPDATE: The full opinion is now available on Lexis: BATS v. Cobb County Georgia, 2007 U..S. Dist. LEXIS 50196 (ND GA, July 6, 2007).

Jews For Jesus Challenges Leafleting Restrictions

In the second round of its challenges to the Town of Oyster Bay, New York (see prior posting), Jews for Jesus has filed suit in federal court challenging the town's ordinance that prohibited the distribution of literature in public parks. Yesterday's New York Law Journal reports, however, that shortly after the suit was filed, the town changed its rules so that printed material can now be distributed if a group first obtains a permit from Town officials. Leaflets can be distributed only from a table at a fixed location, and no more than four leafleters may be present. Susan Pearlman, associate executive director of Jews for Jesus, said that the group would still move ahead with its lawsuit. [Thanks to Steven H. Sholk for the lead.]

Recent Articles On Church-State Issues

From SSRN:
Leslie C. Griffin, Conscience and Emergency Contraception, Houston Journal of Health Law and Policy, Vol. 6, No. 299, 2006.

From Asian Journal of Comparative Law, (Vol. 2, Issue 1, 2007):
Andrew Harding, Buddhism, Human Rights and Constitutional Reform in Thailand.

Mohamed Azam Mohamed Adil, Law of Apostasy and Freedom of Religion in Malaysia.

From SmartCILP:
Dana E. Blackman, Refusal to Dispense Emergency Contraception in Washington State: An Act of Conscience or Unlawful Sex Discrimination?, 14 Michigan Journal of Gender & Law 59-97 (2007).

Kristin B. Gerdy, The Irresistible Force Meets the Immovable Object: When Antidiscrimination Standards and Religious Belief Collide in ABA-Accredited Law Schools, 85 Oregon Law Review 943-991 (2006).

Michele Estrin Gilman, Fighting Poverty With Faith: Reflections on Ten Years of Charitable Choice, 10 Journal of Gender Race & Justice 395-438 (2007).

Symposium: The Jurisprudential Legacy of John Paul II. 45 Journal of Catholic Legal Studies 221-669 (2006).

Dean Sanderford, The Sixth Amendment, Rules 606(b), and the Intrusion into Jury Deliberations of Religious Principles of Decision, 74 Tennessee Law Review 167-197 (2007).

Church Gets TRO Against Bidet Ad On Billboards At Its Building

On Monday, according to the Associated Press, a New York state trial court issued a temporary restraining order prohibiting a billboard ad company from placing a planned ad for a bidet company on two Times Square billboards. Rev. Neil Rhodes, pastor of the interdenominational Times Square Church , filed the lawsuit objecting to the bare buttocks with smiley faces that were to be in the ads that were scheduled to go up on billboards on two sides of the building that houses Rev. Rhodes' church. He said that the ads would interfere with the church's religious activities, which include a Bible school and day care center. The judge, who said that the motion poses novel and significant issues, required the church to post a $90,000 bond to cover damages and costs for the defendant if the church ultimately lost its lawsuit.

Kentucky County Will Issue Revenue Bonds To Finance Church Addition

Boone County, Kentucky's Fiscal Court has agreed to issue up to $2.8 million in industrial revenue bonds to finance a 5,000 square foot addition to the Vineyard Christian Church in Burlington, Kentucky. The addition will be used for Sunday school classes as well as for community groups such as Alcoholics Anonymous. The Kentucky Post reports that yesterday's decision by the County was defended by County Judge-Executive Gary Moore who said that the issuance of the bonds does not breach the required separation of church and state. He cited both federal court decisions and a 1993 Kentucky Attorney General's opinion.

NY Rabbinical College Sues For Permission to Build

The Brooklyn-based Congregational Rabbinical College of Tartikov has filed suit in federal district court in New York challenging Pomona, New York officials' refusal to permit the group to build a Rabbinical College on 30 acres of the Congregation's 100 acre property. The proposed college would include places of worship, educational facilities, religious courts, libraries and student housing. The complaint (full text) in Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, alleges violations of RLUIPA and of the federal Fair Housing Act, as well as violations of various state and federal constitutional provisions. The complaint alleges that "The Village of Pomona has engaged in a targeted and deliberate decades long effort to prevent various Jewish individuals and institutions from developing the subject property and other nearby properties, while permitting other development within the Village." The Associated Press today reports on the lawsuit. (See prior related posting.)

IRS Issues New Rev. Proc. On Sec. 501 Determinations

The Internal Revenue Service has issued Revenue Procedure 2007-52 (effective July 23, 2007), 2007 IRB LEXIS 591, setting out the procedures to be used by non-profit organizations, including churches and other religious groups, in applying for tax-exempt status under Section 501 of the Internal Revenue Code. The Rev. Proc. updates a similar set of rules issued in 1990. Among the changes in this Rev. Proc. is the centralization of determinations on exempt organization applications in the IRS's Cincinnati office

Military Conscientious Objector Rules Are Depublished

Largely unnoticed until now, in May the Department of Defense reissued Instruction 1300.06 setting out DoD policy on conscientious objectors and the procedures for processing discharge requests based on conscientious objection. Then last month the Department of Defense removed from the Code of Federal Regulations the previous version of Defense Department rules on conscientious objectors (32 CFR Part 75). This makes the current CO rules unpublished regulations. The June 19 Federal Register, 72 FR 33677 (June 19, 2007), says that this step has been taken because: "The document on which this part was based has been revised and is limited only to DoD personnel management matters, affects only DoD military personnel, and has no impact on the public." [Thanks to Scott Idleman via Religionlaw listserv for the lead.]

Conference Honors Roy Moore

Jews on First this week has a lengthy account of the God & Country Patriotic Celebration & Conference held in Bowie, Maryland on July 1- 3. Sponsored by a number of right wing Christian groups, the Conference's concluding day honored former Alabama Supreme Court Chief Justice Roy Moore. In his remarks, Moore called for "the sovereignty of God in this country", while conference leader Michael A. Peroutka referred to the Confederate flag that was flying (along with those of Alabama and Maryland) as "the American flag".

Anti-Discrimination Policy vs Student Religious Rights: Once More Unto the Breach

Another lawsuit alleging a conflict between a school's anti-discrimination policy and the restricted religious membership of a proposed University club has been filed. See prior posting here and here.

The Alliance Defense Fund and Christian Legal Society have filed a suit against the University of Florida because, according to a CLS Blog post, "University officials refuse to recognize [Brothers Under Christ/Beta Upsilon Chi] as a registered student organization because the fraternity limits membership to men, and refuses to allow the fraternity to go under the Greek system because it requires members to share the group's Christian beliefs."

Franchise Story 2: Forbes Discusses One Franchisor's Practices

Forbes has published a story called "The Cult of Chick-fil-A," found here (free registration required) and at Westlaw (2007 WLNR 12995596). The article attempts to characterize Chick-fil-A's relationship with its franchisees, noting that Chick-fil-A allegedly "screen[s] prospective operators for their loyalty, wholesome values and willingness to buy into Chick-fil-A's . . . Christian credo." The article then discusses potential legal issues relating to such

screening:

. . . Is it legal? There are no federal laws that prohibit companies from asking
nosy questions about religion and marital status during interviews. Most companies don't because it can open them up to discrimination claims, says James Ryan, a spokesman for the Equal Employment Opportunity Commission. Chick-fil-A has more freedom to ask whatever it wants of franchisees because they are independent contractors and not necessarily subject to federal employment discrimination laws. (Employees, however, may sue under those laws.)

Franchise Story 1: 7th Circuit Allows Race-Based Discrimination-in-Franchising Case to Proceed

A panel of the Seventh Circuit has unanimously ruled that an Arab and Muslim franchisee who refused to serve pork products in his store could proceed with his 42 U.S.C. §§ 1981 & 1982 claims against Dunkin Donuts. The case is Elkhatib v Dunkin Donuts, No. 04-4190 (7th Cir July 10, 2007).

Elkhatib claims that Dunkin Donuts refused to allow him to renew his franchisee agreements or relocate when it learned that he was not selling Dunkin Donuts' breakfast sandwiches. The Court determined that Dunkin Donuts' citation of Elkatib's failure to carry the products was pretext, concluding "there is significant evidence that the carrying of breakfast sandwiches was not an issue of importance to Dunkin Donuts." Slip. Op. at 10.

What may be more interesting to the readers of Religion Clause is how the two courts dealt with (or not) the religious element of his claim. In granting Dunkin Donuts' motion for summary judgment, the trial court sua sponte construed Elkhatib’s claim to be one of religious discrimination rather than racial discrimination, based on the court’s determination that the restrictions on handling pork are associated with religion, not race:

Elkhatib alleges discrimination based on race. See Compl., ¶ 9 (“Plaintiff, as an Arab is forbidden from dealing, buying or selling pork products, because of his race's traditions and religious practices”). Elkhatib cites St. Francis Coll. v. Al-Khazraji, 481 U.S. 604, 613 (1987) for the proposition that Arabs may sue for racial discrimination under § 1981. In that case, plaintiff Al-Khazraji sued a university that denied him tenure on the alleged grounds of racial discrimination. The Supreme Court held that “[i]f Respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or religion, he will have made out a case under § 1981.” Id. at 613. Al-Khazraji based his claim solely on racial grounds. However, the court construes Elkhatib's claim to be one of religious discrimination rather than racial discrimination. The dietary restrictions Elkhatib points to are associated with religion rather than race. Islamic and Jewish law both prohibit the handling and consumption of pork. . . . Claims of religious discrimination are not cognizable under § 1981 and § 1982. Elkhatib v. Dunkin' Donuts, Inc. 2004 WL 2600119, *3 (N.D.Ill. 2004) (notes and religious citations removed). [Ed Note: Links Repaired].

On appeal, neither party argued this point. Slip. Op. at 3. Apparently, the Defendant only pressed its contention that that the district court properly held in the alternative that Elkhatib had failed to meet his burden in demonstrating racial discrimination. Id. And Plaintiff, of course, rested on its position that Elkhatib was subject to racial discrimination.

Somewhat surprisingly, the Seventh Circuit accepted this characterization without comment (and without examining the district court's contention) and treated the claim as a race-based one.

Thanks to How Appealling for the lead.

Hudson Institute's Religious Freedom in the World 2007

On Monday, July 9, the Hudson Institute’s Center for Religious Freedom released the initial findings for its forthcoming book Religious Freedom in the World 2007 (Rowman and Littlefield). According to Hudson, this survey describes and analyzes over 100 countries and territories, especially those where religious freedom is most violated.

Some of the statistics in the survey can be found here:

1. Country Religious Freedom Scores Compared to Freedom House Rankings of Political Rights and Civil Liberties


2. Grim & Finke Scores for Government Regulation of Religion (GRI), Government Favoritism of Religion (GFI), and Social Regulation of Religion (SRI)

Here is a National Review piece by Paul Marshall on the study he edited.

Thanks to Melissa Rogers for the lead.

InnerChange: Latest Developments

On July 1, 2007, this blog reported (here) that Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause.

Yesterday's Des Moines Register (IA) has an editorial calling that decision into question, writing "If the state desires to institute 'values based' programs aimed at reforming convicted criminals, it must be sure they are not disguised as government-sponsored avenues for evangelization."

Defendants have also filed two F.R.A.P. 28(j) letters providing supplemental authorities to the court. One relates to rates of recidivism for inmates in the program. The second discusses the Supreme Court's decisions in Hein v Freedom from Religion Foundation, 551 U.S. ____ (2007) (June 25, 2007) and University of Notre Dame v Laskowski, No. 06-582 (US June 29, 2007) (cert. granted, judgment vacated and remanded in light of Hein). Both of these cases are discussed here.

Defendants argue that the district court relied heavily on Laskowski, and "[t]hus the anomalous legal basis for allowing private, taxpayer plaintiffs to compel restitution to the government is gone, and the decision below granting that remedy should be reversed." Plaintiffs argue in reply that unlike the case in Hein, "InnerChange was funded for the last four years with appropriations by the Iowa Legislature specifically for the program." Plaintiffs also argue that "The restitution question is an issue of remedy, not standing. Hein does not impact the logic of prior cases that treated restitution as an available remedy...."

Asylum Seeker Has Right to Profess Faith in Public

According to the Middle East Times (Egypt), a German court ruled that an asylum seeker from Iran who had converted to Christianity may not be deported. Germany had originally denied the asylum seeker's request on the grounds that she had been able to secretly practice her religion in Iran. The asylum seeker claimed that her faith required public professions and attendance at worship services.

The administrative law judges reviewing the decision accepted her argument that a 2004 European Union directive requires the granting of asylum to those who face persecution for practicing their religion in public. Moreover, the court doubted that she could return to the secret practice of her religion after living openly in Germany.

Article 10 of that directive holds that:

1. Member States shall take the following elements into account when assessing the reasons for persecution: (a) . . . . (b) the concept of religion shall in particular include the holding of theistic, non-theistic and atheistic beliefs, the participation in, or abstention from, formal worship in private or in public, either alone or in community with others, other religious acts or expressions of view, or forms of personal or communal conduct based on or mandated by any religious belief . . .

$1 Damages to Cobb County Prayer Plaintiffs

In September, 2006, a Georgia federal district judge upheld the practice of the Cobb County (GA) Board of Commissioners and its Planning Commission to open their sessions with prayer, but determined that the Planning Commission's selection procedure for identifying clergy to deliver that prayer was defective. That case, Pelphrey v. Cobb County, 448 F. Supp. 2d 1357, 1374 (N.D. Ga. 2006), was reported on here and here.

The court has issued its decision on relief owed the plaintiffs. As said, the Court had previously upheld the Board of Commissioners' process for selecting speakers which involved inviting clergy from a master list compiled using the Yellow Pages. The Planning Commission also used the Yellow Pages, but its set of Yellow Pages "contained cross-out markings through the contact information of Islamic, Jehovah’s Witness, Jewish, and Latter Day Saint churches. Leaders of those faiths were categorically excluded from the pool of invitees in 2003 and 2004." Pelphrey v. Cobb County, No. 1:05-cv-2075, slip op. at 4 (ND Ga. July 7, 2007).

The court concluded that the Plaintiffs were entitled to a declaration that the 2003-2004 practice was unconstitutional, that they are entitled to compensatory damages of $1, and that they are not entitled to injunctive relief. Id. at 21-22. The court concluded that no injunctive relief was appropriate because, given that the practice had stopped in 2005, "an injunction would not operate to redress the unconstitutional conduct." Id. at 21. It concluded that nominal damages were appropriate where, as here, a plaintiff established the violation of an “absolute”constitutional right—such as the right to be free from a state establishment of religion—but cannot prove actual injury. Id at 17 - 18.

A story detailing this award can be found here in the Daily Report (Fulton County, GA).

Preacher's Failure to Follow Campus Rules Not Sufficient for Trespass

A Schenectady (NY) City Court has acquitted Greg Davis of criminal trespass after Davis was arrested and tried for entering Schenectady County Community College's campus to preach. The court concluded that Davis' failure to follow the campus' rules for speaking on campus and defiance of an administrator's order to leave were not sufficient to support the trespass charge. The Decision and Order can be found here.

The Court determined that under NY Law, the People were required to demonstrate that the particular order to exclude Davis had a legitimate basis and that, considering the nature and use of the subject property, its enforcement did not unlawfully inhibit or circumscribe the defendant from engaging in constitutionally or statutorily protected conduct. After establishing that that the campus was "open to the public," the Court ruled the People had not met their burden:

[t]he Court finds that the People offered insufficient evidence to demonstrate that the . . . order to the defendant to leave the SCCC campus had a legitimate purpose, rationally related to the power to maintain order on the campus, or that its enforcement did not violate an independent right of the defendant.

Therefore, the Court finds this defendant not guilty of the charge of Trespass . . .

The case is People of the State of New York v. Davis, # 06-77707 (Schenectady City Ct. 6/27/07) .

Thanks to ADF for the lead.

Slidell: Complaint and Motion for Preliminary Injunction

Copies of the complaint and motion for a preliminary injunction in Doe v Parish of St. Tammany are now available online. This is a case in which plaintiffs object to an icon which contains a portrait of Jesus that is posted in the lobby of a Slidell, Louisiana courthouse. The complaint alleges, in part:

11. The lobby contains two paintings. One is a painting of the founding judge of the City Court of Slidell and is accompanied by wording to that effect. The other, placed on a separate wall, is a religious icon of the Eastern Orthodox sect of Christianity. It shows an image of Jesus Christ presenting the New Testament. The icon is positioned above the large gold wording, "TO KNOW PEACE, OBEY THESE LAWS." The display in question is the Eastern Orthodox religious icon combined with the wording below it.

12. The display is prominently displayed in the center of the wall directly above the teller window of the City Court of Slidell.

14. Prior to June of2007, in order to participate fully as citizens, to conduct business, or to fulfill certain legal obligations, Plaintiffs, John Doe and members of the American Civil Liberties Union of Louisiana, separately entered the City Court of Slidell, saw the display, and were offended by it as a whole and in its several parts. In order to participate fully as citizens, conduct business, or fulfill certain legal obligations, Plaintiffs will be obligated to return to the courthouse in the future.

17. On information and belief, Defendants installed the display, which had never
before been displayed on public property, before the courthouse opened in 1997 and have maintained it at taxpayer expense since that time.

See prior postings on this case 1, 2, 3.

Thanks to the First Amendment Center for the lead to the online documents.

The Legacy of Zelman v Harris-Simmons

Five years ago (6/27/2002), the U.S. Supreme Court handed down Zelman v Harris-Simmons which held that Ohio's Cleveland-based voucher program was constitutional. Sunday's Plain Dealer (Cleveland, OH) has this assessment of the program:

From Cleveland Heights to Akron, the population shift from older neighborhoods could lead to the closing, merger or consolidation of about one-sixth of the schools in the eight-county Cleveland Catholic Diocese. But Catholic schools in Cleveland proper have a guardian angel: Ohio taxpayers, who provided more than $16 million in tuition vouchers for more than 5,500 city children to attend parochial schools this past school year.

The paper also notes that the program enjoys bi-partisan support. Voucher opponents claims that the program drains resources from other public school activities.

The Legacy of Rosenberger v. University of Virginia

A Chronicle of Higher Education story discusses the confusion that remains after the 1995 Supreme Court decision in Rosenberger v. Rector and Visitors of the University of Virginia.

More than a decade later, some public universities still have policies that appear to run counter to the spirit and letter of [Rosenberger]. In fact, a review of more than a dozen student handbooks across the country reveals a confusing and contradictory mishmash. Some policies explicitly welcome religious groups to apply for student-activity funds and inveigh against any "viewpoint discrimination." Others prohibit religious groups from receiving any money. Still others are so vague that it's unclear who is and is not eligible for support.

As a consequence, there is litigation involving schools that are allegedly engaging in viewpoint discrimination. See for example a prior posting (here) discussing a case in which the University of Wisconsin settled a lawsuit filed against it by UW Roman Catholic Foundation challenging UW's refusal to recognize the Foundation as a student organization.

More interesting may be the article's effort to describe what lies ahead. The article quotes Steven K. Green, a professor of law at Willamette Universiy (and former Americans United policy director) as saying that the next wave of post-Rosenberger litigation relates to schools citing their anti-discrimination policies and refusing to fund religious groups that deny gays and lesbians the right to join or be officers. The article mentions Christian Legal Society v Southern Illinois University at Carbondale as one example of this kind of litigation (see prior postings here and here). In that case, CLS sued after the University revoked CLS’s status as a recognized student group because it violated the University’s non-discrimination policy by not allowing non-Christians, gays and lesbians to be voting members. The University settled with CLS and, among other things, reinstated CLS. Another similar case, not mentioned in the article, is Christian Legal Society of University of California, Hastings College of the Law v. Kane, which is still pending (see prior postings here and here).

Howard Friedman, your regular host on this site, provided this detailed Analysis of The Christian Legal Society Cases back in May, 2005.

Thanks to ADF for the lead.

European Court of Human Rights: No to Norway's Mandatory Religious Ed

The European Court of Human Rights has ruled against Norway's mandatory elementary school religion classes. The case was Folgerø and Others v. Norway (Application no. 15472/02) (June 29, 2007). The judgment of the Court in can be found here.

The facts, as set out by the Court:

The present case concerns complaints lodged by non-Christian parents. It relates, firstly, to a complaint under Article 9 of the Convention and Article 2 of Protocol No. 1, about refusals by the domestic authorities to grant their children full exemption from a compulsory subject in Christianity, Religion and Philosophy (the “KRL-subject” – see paragraph 16 below) taught during the ten-year compulsory schooling in Norway. Secondly, it concerns their complaint about discrimination contrary to Article 14 of the Convention taken in conjunction with the aforementioned provisions and Article 8 of the Convention. (Para 3 of the opinion).

Article 2 of Protocol 1 can be found here. The Court concluded:

[N]otwithstanding the many laudable legislative purposes stated in connection with the introduction of the KRL subject in the ordinary primary and lower secondary schools, it does not appear that the respondent State took sufficient care that information and knowledge included in the curriculum be conveyed in an objective, critical and pluralistic manner for the purposes of Article 2 of Protocol No. 1. Accordingly, the Court finds that the refusal to grant the applicant parents full exemption from the KRL subject for their children gave rise to a violation of Article 2 of Protocol No. 1. (Para 102 of the opinion).

Having disposed of the Article 2 claim, the Court did not reach the Article 14 claim (Para 105).

There was a dissent, which argued:

In our opinion, a review of the case requires a twofold approach, namely, in the light of the requirements of modern Norwegian society and with its history as an important background. On the one hand, the increasing number of Norwegian citizens with different ethnicities and religious beliefs calls for inclusive measures, with a common education in religions and ethics in schools. On the other hand, when devising the curriculum, one cannot overlook the many centuries of Norwegian history. Christianity has a very long tradition in Norway, both as a religion and a school subject (see paragraphs 9 and 10 of the judgment). This aspect must be reflected in the curriculum, which must at the same time be inclusive and broad.

An article on the case can be found at the Norway Post.

[Thanks to Christianity Today for the lead.]

Malaysia: Muslim to Hindu Conversion Blocked by Islamic Court; Woman Detained

According to AP and Reuters, a Malay woman was released on July 6 from a 180-day detention in a "religious counselling center." Massosai Revathi had been detained by the Malacca Islamic Religion Council because she sought to convert from Islam to Hindu after marrying a Hindu man. In Malaysia, Islamic courts determine whether a Muslim may convert out of Islam and these courts routinely do not allow such conversion. Without permission, a person cannot marry a non-Muslim or emigrate.

Revathi claims she was subject to "intimidation and mental torture" while in the center. She claims she was placed in solitary confinement, forced to wear a headscarf, pray as a Muslim, and was served beef (which Hindus may not eat). AP reports that Islamic officials also seized the couple's 18-month-old daughter in March and placed her in Revathi's Muslim mother's care. According to the BBC, a lawyer representing the Malacca Islamic Religion Council rejected her allegations and said officials believe that she can still be persuaded to embrace Islam.

In a widely publicized case, in May a woman, Lina Joy, lost a battle in Malaysia's highest court to have the word "Islam" removed from her identity card. She had sought to convert from Islam to Christianity.

Previous posts relating to Lina Joy and Malaysia's treatment of converts can be found here.

Members of Congress Call on Bishops to Work to End War in Iraq

Earlier this week, fourteen Democratic Members of Congress sent a letter to the U.S. Conference of Catholic Bishops last Thursday, calling on the Bishops to increase their involvement in efforts to end the war in Iraq. A press release and a copy of the letter can be found here.

Guest editor's note: I couldn't find a Republican (or other) response or critique of the letter to the USCCB. If any reader knows of one, please post a link in the comments section.

American Baptist Churches and Cooperative Baptist Fellowship Hold Historic Worship Service

The Washington Post carried a story today about an historic joint worship service held by American Baptist Churches USA and the Cooperative Baptist Fellowship. American Baptist Chruches Secretary Roy Medley said "[t]his is, in and of itself, an awesome God moment . . . American Baptists, Cooperative Baptists, Progressive Baptists coming together. . . . It gladdens our hearts." The Washington Post also carried this story about the American Baptist Churches' multicultural membership.

The American Baptist Churches' also presented its first Religious Freedom Award to the Baptist Joint Committee for Religious Liberty.



Lead from Blog From the Capital.

ADF Sues City of Zachary, LA Over Prohibited Preaching

The Alliance Defense Fund said in a press release that it has filed a lawsuit and a motion for preliminary injunction on behalf of a man whom a policeman prohibited from sharing a religious message on a public street outside of a bar in the city of Zachary, Louisiana. The officer cited a city ordinance prohibiting speech that is “annoying” or “offensive” to another person. The case is Netherland v. City of Zachary, No. 3:2007-cv-00409.

According to ADF, on the evening of Nov. 18, John Todd Netherland stood outside on public property to speak about his Christian faith about 75-100 feet from the entrance of a local bar. Even though he was allegedly standing on public property, a police officer told Netherland he could not preach there and instructed him to move closer to the street. The officer then allegedly warned Netherland that if he stepped back to the place he’d been standing, he’d be arrested and sent to jail. Despite agreeing to comply, the Plaintiff claims that the officer told him that if he continued to preach, even in the new location, he would arrest him for “disturbing the peace.” Netherland claims that he then ceased speaking because of the threat of arrest.

New Faith-Based Initiative in Granite State

The Nashua Telegraph (NH) reports that "New Hampshire – long known for a libertarian streak that eschews government overreach – has become the 33rd state to officially connect state and church for the purpose of helping those in need." The paper says that the effort will follow the model of the White House Office of Faith-Based and Community Initiatives. Additionally, according to the AP, "State officials and representatives of various churches or church organizations signed an agreement [July 2] formalizing faith-based cooperation."

Developments in Odessa, TX Bible Case

On Wednesday, the Houston Chronicle reported some developments in the Odessa, Texas Bible-in-curriculum case, Moreno v. Ector County Independent School District. (See previous post here.) Defendants filed a Fed. R. Civ. P. 68 offer of judgment to plaintiffs, asking them to settle the suit for $500. A Rule 68 offer can change the financial stakes of the litigation: "[i]f the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer." At the same time, the Defendants also filed a motion for referral to mediation. Notably, Kelly Shackelford, chief counsel for the Liberty Legal Institute, is one of the attorneys representing the defendants.

Times (UK) Attacks Regent University Law School/Justice Department Relationship

The TimesOnline (UK) has published an essay that is highly critical the Justice Department's hiring of Regent University School of Law graduates. The essayist believes that the hiring of 150 graduates of this faith-based law school raises questions about the influence of faith on the American political process. Another, less critical article on the relationship between the Justice Department and Regent was published in April by Slate. Religion Clause reported on another article, here.

Defendant's Religious Beliefs Fair Game in Employment Case

The New York Daily News reports that the New York Supreme Court (a trial court) has determined that an employer can be required to answer interrogatories about his religious beliefs when those beliefs are "relied upon to form a basis of discrimination against a person who is a member of a protected class." The opinion can be found here.

Defendant argued that his individual associational privacy rights under the First and Fourteenth Amendments and his individual beliefs and freedom of exercise of religion under the religion clauses of the US and NY Constitutions are absolute, and that no compelling state interest exists so as to compel him to divulge those beliefs. Disagreeing, the judge concluded:

It is the duty of every Court to guard jealously the great right and privilege of free exercise and enjoyment of religious profession and worship without discrimination or preference, with all the power that the Court possesses, but no person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.

Without ruling whether any answer given would be admissible at trial, the judge has required the defendant to answer the following questions:

“State whether defendant [] believes that ‘homosexuality is a sin against God.'"
“State whether defendant [] believes that ‘gays and lesbians are doomed to eternal damnation."
“State whether defendant [] regards homosexuals as ‘repulsive.'”

The case is Fairchild v. Riva Jewelry Mfg., Inc., No. 101169/2006, 2007 NY Slip Op 31857 (June 28, 2007).

Leonard Link also has an analysis of this case.

Elections at U.S. Commission on International Religious Freedom

The U.S. Commission on International Religious Freedom has announced that it elected Michael Cromartie to serve as its chairman for a one-year term, starting July 1. Michael Cromartie is Vice President at the Ethics and Public Policy Center, and he directs both the Evangelicals in Civic Life and Religion & the Media programs.

The Reverend Richard Land, who heads the Southern Baptist Convention's Ethics and Religious Liberty Commission, and Preeta Bansal , a partner at Skadden, Arps, Slate, Meagher & Flom LLP, were elected to serve as vice-chairs.

According to the Commission, the U.S. Commission on International Religious Freedom was created by the International Religious Freedom Act of 1998 to monitor the status of freedom of thought, conscience, and religion or belief abroad, as defined in the Universal Declaration of Human Rights and related international instruments, and to give independent policy recommendations to the President, Secretary of State, and Congress.

Student Dress Code Falls in Napa

The Nappa Valley Register reports that the ACLU has won a preliminary injunction prohibiting enforcement of a dress code at a Nappa Valley middle school. The policy (which is attached to the judge's order) permits students to wear only solid-color clothes in certain specified colors, with no pictures, logos, words, or patterns of any kind. The case is Scott et al v Napa Valley Unified School District, et al., Case No. 26-37082 (July 3, 2007).

The suit was brought by six students who were punished for violating the attire policy, including one who wore a t-shirt that said "Jesus Freak," another who wore a D.A.R.E. pin, and a third who wore a breast cancer awareness ribbon. The district also punished a student wearing a pair of socks bearing the image of the Winnie the Pooh character Tigger. The district defended the policy, saying that it furthers the important governmental interests of providing a safe school environment and of preventing gang activity on campus.

This case is an early post-Morse v. Frederick (551 U.S. __ (June 25, 2007)) decision. In its reaching his decision, Napa Superior Court Judge Raymond Guadagni cited Morse as upholding the well-settled principle from Tinker v. Des Moines Independent Community School Dist that student expression is protected as long as it does not “materially and substantially disrupt the work and discipline of the school.” 393 U.S. 503, 513 (1969).

Maryland State Bd. of Ed. Approves Sex-Ed Curriculum Over Religious Objections

According to the Washington Post, here, the Maryland State Board of Education has ruled in favor of a sex-education curriculum adopted last month for use in Montgomery, Maryland middle and high schools. Because of the curriculum's views relating to homosexuality, opponents to it had claimed Free Exercise and Establishment Clause violations. They also claimed that the curriculum violated student free-speech rights by expressing a favorable view of homosexuality and that it restricts religious expression by suppressing the view that homosexuality is a sin. Notably, use of an earlier version of the curriculum (which the Post reports has since been wholly re-written) was stopped by a federal court's preliminary injunction. In that granting injunction, the judge ruled that the earlier version had criticized religious perspectives on homosexuality and thus raised Establishment Clause issues.

In the June 27 ruling, the State Board of Education's opinion, found here, dismissed the opponents' claims, concluding that the Free Exercise challenge does not succeed because "a curriculum need not espouse every viewpoint to pass constitutional muster" and that the curriculum in question does not "preclude the Appellants from espousing their religious beliefs..." The Board rejected the opponents' Establishment Clause claims, saying the the curriculum has a secular purpose, which is fostering tolerance and diversity. In rejecting the Free Speech claim, the Board concluded that the Constitution does not require the district to be viewpoint neutral or include all points of view.

The Post says that the opposition group has not yet determined whether it will seek relief in federal court.

Gordon Brown Gives Up Right to Appoint Senior Ecclesiastical Positions

Today's Times (UK) reports here that new UK Prime Minister Gordon Brown has given up his right to appoint key ecclesiastical officials. In a constitutional Green Paper (found here), the Government has said that the Prime Minister should no longer use the royal prerogative “to exercise choice in recommending appointments of senior ecclesiastical posts, including diocesan bishops, to the Queen." In the absence of the Archbishop of Cantenbury (who is on a "study leave"), the Archbishop of York welcomed the decision.

Guest Blogger Steve Sheinberg To Host Religion Clause For The Next Week

For approximately the next week, Religion Clause will be edited by guest blogger Steven Sheinberg, instead of by me. Steve Sheinberg is Associate Director, Legal Affairs at the Anti-Defamation League (http://www.adl.org/). Steve works on the full range of ADL's religious freedom advocacy. Please join me in welcoming Steve. --- HMF

2nd Circuit Vacates Injunction Permitting Renting Of School Buildings For Church Services

In a fragmented decision in Bronx Household of Faith v. Board of Education of the City of New York, a 3-judge panel of the U.S. 2nd Circuit Court of Appeals vacated a district judge's permanent injunction barring enforcement of a school policy on rental of space in public school buildings to outside groups on evenings and weekends. (See prior posting.) The New York City schools, concerned about having schools identified with any particular religious group, had prohibited rental of school space to religious groups for worship services. In 2002, the 2nd Circuit had affirmed a preliminary injunction invalidating that policy. (See prior posting.) But now, on appeal of the grant of a permanent injunction in the case, a different 3-judge panel of the court reached a different result. Here is how the court described its fragmented holding:

Judge Calabresi would hold that this dispute is ripe for adjudication and would vacate the injunction because he concludes that Revised SOP §5.11, while a restriction on the content of speech permitted on school property, is viewpoint-neutral. Judge Walker agrees that the dispute is ripe for adjudication but would affirm the injunction because he concludes that Revised SOP § 5.11 is viewpoint-discriminatory. Judge Leval expresses no opinion on the merits, but votes to vacate the injunction because he concludes that the dispute is not ripe for adjudication.
Our disparate views of this case leave us without a rationale to which a majority of the court agrees. While two judges who disagree on the merits believe the dispute is ripe for adjudication, the court cannot decide the merits of the case without the vote of the third judge, who disagrees as to ripeness. Judge Leval agrees that the dispute over Revised SOP §5.11 would indisputably become ripe if the City were to deny Bronx Household permission to use school facilities in reliance on the terms of that rule.
... The City is free to adopt Revised SOP § 5.11 (if it has not already done so), and then require that Bronx Household apply to use school buildings pursuant to that rule. In the event Bronx Household does so, and the City denies the application, Bronx Household may seek review of that denial in the district court on an expedited basis.

Today's New York Sun reports on the case. [Thanks to How Appealing for the lead.]

Itinerant Preacher Loses Bid To Preach On Murray State Campus

In Gilles v. Miller, (WD KY, June 27, 2007), a Kentucky federal district court ruled against traveling evangelist James G. Gilles who was challenging the policy of Murray State University that required him to have sponsorship from a University organization or department in order to proselytize on campus. The court held that the University's policy did not violate Gilles' speech rights because it is a viewpoint-neutral and reasonable policy applicable to a designated public forum. The court also rejected vagueness and equal protection challenges to the policy. Yesterday's Louisville Courier-Journal reported on the decision.

Australia May Pay Racecourse To Host Mass By Pope

In Sydney, Australia, Pope Benedict XVI will conduct a Mass on World Youth Day, July 20, that is expected to draw up to 600,000 worshippers. Today's Herald Sun reports that some question has been raised about proposals to compensate the Australian Jockey Club for up to $50 million in losses that it would suffer if its Randwick racecourse is used for the Mass instead of for racing events. Part of the payment would come from taxpayer funds.

Egyptian High Court Will Review Converts' Right To Change ID Card Designation

Yesterday's International Herald Tribune reports that Egypt's Supreme Administrative court has accepted jurisdiction in an appeal by 45 Coptic Christians who converted to Islam (some as children) and now want to return to Christianity. A lower administrative court ruled against the request to change their national identity card designations back to indicate that they are Christians. Sharia law treats conversion out of Islam as apostasy. However, Egypt generally permits Copts to convert into Islam-- and many do in order to obtain a divorce that is not available from Coptic authorities.

Fargo Reverses Decision-- Will Keep 10 Commandments On City Mall

Reversing an earlier decision, the Fargo, North Dakota City Council yesterday agreed that a 10 Commandments monument would remain on City Hall mall. Today's Fargo Forum reports that Commissioner Tim Mahoney reversed his earlier vote in favor of moving the monument. This all happened as members accepted a petition with over 5,000 signatures seeking to place an initiated ordinance on the ballot that would prohibit the city from moving any monument or marker that has been on city property for over 40 years. Council then received and filed a request by the Red River Free Thinkers who want to erect a companion monument that would contain a quote saying that America is not founded on the Christian religion. That proposal had previously been rejected, but one member of council said she voted against it only because she thought that the 10 Commandments would be moved off the mall. (See prior related posting.)

Tajikistan's Religion Law Draft Raises Concerns

According to a report yesterday by Forum 18, religious minorities in Tajikistan are deeply concerned about the latest draft of a proposed Religion Law. They say that the law will limit the number of mosques, and will make it nearly impossible for non-Muslim religious communities to obtain legal recognition. Recently a letter objecting to the high threshold numbers for recognition, signed by representatives of 22 religious minorities, was sent to the President and Parliament

"Day of Truth" Lawsuit Settled As School Enacts New Speech Policy

Yesterday, the Alliance Defense fund announced the settlement of a suit it had filed against a New Jersey High School in order to assure that the head of the school's Christian Club could hand out fliers and cards, and have an ad about the Day of Truth read over the school's loudspeaker. The event is a Christian response to "Days of Silence", an event designed to combat harassment of gays, lesbians, bisexuals and transsexuals. (See prior posting.) The Notice of Voluntary Dismissal in Aufiero v. Northern Highlands Regional High School Board of Education was filed after the school permitted the Day of Truth activities to proceed and also enacted a new student speech policy protecting student rights to speak on issues of current interest.

Supreme Court Remands Notre Dame Case In Light of Hein Decision

On Friday, taking up the case of Notre Dame University v. Laskowski, (Case No. 06-582), the U.S. Supreme Court granted certiorari, vacated the judgment below and remanded the case to the 7th Circuit for further consideration in light of the Court's recent decision in Hein v. Freedom from Religion Foundation, Inc. In the Notre Dame case, the 7th Circuit had held that taxpayers had standing to challenge a grant from the Department of Education to Notre Dame University to fund a Catholic teacher training program. The case raised the unusual question of whether Notre Dame might have to repay past government funds it had already spent. (See prior postings 1, 2.) Unlike the expenditure in Hein that was from a general appropriation to the executive branch, the funds given to Notre Dame stemmed from a specific earmark by Congress in Sec.309 of the Consolidated Appropriations Act, 2000, Pub. L. 106-113, 113 Stat. 1501A-261 to 262 (Nov. 29, 1999). Today's Inside Higher Ed reports on the Supreme Court's action.

Accommodating Muslim Prayer In San Diego School Raises Controversy

Today's San Diego Union-Tribune reports on the debate in Oak Park, California over the actions at Carver Elementary School to accommodate the needs of some 100 Somali Muslim students who enrolled after their charter school closed. Carver added Arabic to its curriculum and, more controversially, it gives students a 15-minute break each afternoon so Muslim students can pray. Other students can read or write during that time. Proponents say that this accommodation is needed because Islam, unlike many other religions, mandates a specific time for required prayers that conflicts with the school day. While some advocacy groups have criticized this move, the Pacific Justice Institute has written San Diego's Board of Education to request that the district's policy be expanded to allow Christians and Jews daily prayer time as well. The letter asks that the Board institute a Daily Prayer Time Policy that would set aside separate classrooms for each religion to use, and would allow clergy to lead students in those prayers. (PJI release).

State Can Apply Child Care Licensing To Bible School

In Tennessee Department of Human Services v. Priest Lake Community Baptist Church, (TN Ct. App., June 25, 2007), a Tennessee state appellate court upheld application of the state's child care licensing requirements to a weekday Bible school program operated by a Baptist church. The court found that the church lacked standing to challenge certain of the substantive requirements imposed by the regulations. The court limited the church to challenging whether a general requirement that it obtain a child care license violates its free exercise rights. The court upheld state regulators, finding that the licensing law was a neutral generally applicable regulation and did not target religious conduct for special treatment.

South Carolina House Upholds Veto Of Blue Law Repeal

The South Carolina House of Representatives last week, by a 38-63 vote, sustained Governor Mark Sanford's line item veto of a one-year repeal of Sunday closing laws that had been placed in the state's budget bill. The State last Friday reported on the House action. The bill would have permitted sales all day-- except for alcohol-- around the state. The governor said the measure deserved more extensive debate than it got buried in the budget bill. The veto means that in a number of counties in the state, many merchants will need to continue to be closed until 1:30 pm on Sundays. [Thanks to Dispatches From the Culture Wars for the lead.]

Pentacle To Go On Arlington Cemetery Headstone With Cross

In April, the Veterans Administration approved adding the Wiccan Pentacle to the approved list of symbols that may be placed on grave markers in national cemeteries. (See prior posting.) Taking advantage of that ruling, on July 4 at an interfaith memorial service, the Pentacle will be added to the Arlington Cemetery gravestone of Jan Deanna O'Rourke. BBS news reports that the double headstone marking O'Rourke's burial site, next to her veteran husband, will become the first in a veterans cemetery to carry both a cross (marking her husband's grave) and a Pentacle. O'Rourke was active in politics, business and the charitable world. She was also a Wiccan priestess, active in interfaith work.

More of June's Prisoner Free Exercise Cases

In Kaufman v. Karlen, 2007 U.S. Dist. LEXIS 45568 (WD WI, June 21, 2007), a Wisconsin federal district court rejected a prisoner's Establishment clause challenge to prison policy that prevented him from wearing an emblem signifying his atheist beliefs. Prison policy aimed at assuring that prisoners did not wear symbols of secular groups or gangs. The court also rejected plaintiff's free exercise and establishment clause challenges to delays by the prison library in shelving books on atheism that were donated to it. The court also rejected establishment clause and free speech challenges to prison policy that prohibited inmates from receiving free publications other than religious material, college promotional material and retail catalogs.

In Watts v. Department of Corrections, 2007 U.S. Dist. LEXIS 45812 (ED CA, June 15, 2007), a California federal district court awarded limited attorneys fees to counsel who was partially successful in a prisoner's challenge to prison grooming standards by negotiating a settlement that expunged the prisoner's disciplinary record regarding grooming violations.

In Key v. Keim, 2007 U.S. Dist. LEXIS 46101 (SD IL, June 26, 2007), a federal district court accepted a federal magistrate's recommendation that summary judgment be denied to a prison chaplain who was sued by a prisoner who was a member of the African Hebrew Israelite faith. The prisoner claimed that his free exercise rights were violated when he was denied kosher meals several times and was denied access to certain religious tapes.

Bar Exam Question Challenged On Free Exercise Grounds

A bar applicant has mounted an unusual Free Exercise challenge to the Massachusetts bar exam that he recently failed. This week's National Law Journal reports that Stephen Dunne has filed suit in a Massachusetts federal court claiming that he would have passed if bar examiners had ignored his failure to answer an essay question on gay marriage. He alleges that answering the question would have required him to "affirmatively accept, support and promote homosexual marriage and homosexual parenting" in violation of his religious beliefs. Dunne has also raised equal protection, due process and commerce clause challenges in the suit that he has filed pro se.

UPDATE: Here is the full text of the complaint in Dunne v. Massachusetts Board of Bar Examiners. [Thanks to Dispatches From the Culture Wars for posting it.]

City Officials Defiant Over Jesus Picture In Courthouse

Yesterday's New Orleans Times-Picayune reports that Slidell, Louisiana officials have rejected in strong terms a request by the ACLU that a picture of Jesus-- a reproduction of a Russian Orthodox icon-- hanging in the Slidell City Court lobby be removed. (See prior postings 1, 2.) Judge Jim Lamz said: "We respectfully disagree with the ACLU's opinion that this is a violation of the Constitution. The only opinion that counts in this type of case is the opinion of the federal judge to whom this will go if the ACLU sues." In a somewhat stronger statement, Slidell Mayor Ben Morris attacked the ACLU: "I fight daily with FEMA for the recovery of our city, and now we must fight with these tyrants, this American Taliban who seek to destroy our culture and our heritage."

UPDATE: The Times-Picayune reports that on Tuesday, the ACLU filed suit against the Slidell City Court challenging the constitutionality of displaying the icon reproduction in the courthouse lobby.

Texas Supreme Court Rejects Professional Negligence Suit Against Pastor

In Westbrook v. Penley, (TX Sup. Ct., June 29, 2007), the Texas Supreme Court held that it "would unconstitutionally entangle the court in matters of church governance and impinge on the core religious function of church discipline" if it were to take jurisdiction over a suit in which a congregant charged her pastor with improperly disclosing confidential information received during a secular counselling session to church elders. Pastor "Buddy" Westbrook, Jr. and church elders then sent a letter to congregants telling them that they should "break fellowship" with Peggy Lee Penley because she intended to divorce her husband without any Biblical basis for the divorce and she had a "biblically inappropriate" relationship with another man. The court concluded that "the secular confidentiality interest Penley's professional-negligence claim advances fails to override the strong constitutional presumption that favors preserving the church's interest in managing its affairs." It explained that imposing civil liability on the pastor for professional negligence "would in effect impose a fine for his decision to follow the religious disciplinary procedures that his role as pastor required...."

California Court Restrains Radical From Going Near Mosque

An Orange County, California judge has issued a restraining order sought by members of Irvine's Islamic Center. The order prevents Craig Monteilh from going near the mosque or its employees. Yesterday's Los Angeles Times reports that mosque members became concerned after Monteilh, a recent convert to Islam, began discussing jihad and said he wanted to get involved in a terrorist operation. Some worshippers have stopped attending because of Monteilh's presence. The Islamic Center has charged that the FBI has it under surveillance, but the FBI denies this.

Alabama Governor Proclaims "Days of Prayer for Rain"

Alabama Governor Bob Riley last Thursday issued a formal Proclamation (full text and press release) setting the week of June 30 to July 7 as "Days of Prayer For Rain". The Florence (AL) Times Daily reports that Riley was responding to a once-in-50-years drought in northern Alabama. The Proclamation encourages "all Alabamians to pray individually and within their houses of worship for sufficient rain". The Governor's press release quotes Don Wambles, Director of the Alabama Farmers Market Authority, a state agency, who said: "We need God’s forgiveness and our land needs His healing."

Court OK's School's Ending Of Mohawk Thanksgiving Address Over PA System

In New York state, parents of Mohawk Indian children last week lost their equal protection challenge to a decision by the Salmon River School District to end the practice of reciting the Mohawk Thanksgiving Address (in the Mohawk language) over a school's public address system and at other school events. In Jock v. Ransom, (ND NY, June 28, 2007), a New York federal district court held that school officials were justified in relying on advice of their attorneys that the Address might be considered a religious prayer and its recitation might be seen as violating the Establishment Clause. The court concluded that plaintiffs had not proven purposeful discrimination by school officials, particularly since it now allowed students to voluntarily go to the gymnasium twice a week to recite the Address an permitted its recitation in the cafeteria where students lined up before graduation.

This week's New York Law Journal reports on the decision, pointing out that two-thirds of the school district's students are American Indians and that the recitation of the Address was originally an attempt to raise awareness among non-Indian students of Mohawk culture.

Iowa Permits Faith-Based Prison Program To Continue Pending 8th Circuit Decision

Iowa prison officials have reached an agreement with the faith-based prison treatment program, InnerChange, permitting it to continue to operate-- at its own expense-- at Newton Correctional Facility pending the U.S. 8th Circuit Court of Appeals decision on whether the program violates the Establishment Clause. The Des Moines Register yesterday reported that Prison Fellowship will be permitted to operate the program without the state funding it has been receiving, but authorities will be able to shut it down immediately if the 8th Circuit agrees with last year's district court decision invalidating the program. The district court suspended its order while the appeal is pending. Prison officials also said they intend to seek bids for a new "values-based" treatment program at Newton Correctional Facility next year.

Recent Articles of Interest

From SSRN:
Cass R. Sunstein, On the Tension Between Sex Equality and Religious Freedom, (June 2007, U. of Chicago, Public Law Working Paper No. 167).

Ira C. Lupu & Robert W Tuttle, Instruments of Accommodation: The Military Chaplaincy and the Constitution, (West Virginia Law Review, Vol. 110, 2007).

Joshua D. Dunlap, When Big Brother Plays God: The Religion Clauses, Title VII, and the Ministerial Exception, (82 Notre Dame Law Review 2005 (2007)).

From Bepress:
Patrick McKinley Brennan, The Decreasing Ontological Density of the State in Catholic Social Doctrine, (Villinova Univ. Working Paper Series, 2007).

From SmartCILP:
Tom Lewis, What Not To Wear: Religious Rights, the European Court, and the Margin of Appreciation, 56 International & Comparative Law Quarterly 395-414 (2007).

David Morris Phillips, The Unexplored Option: Jewish Settlements in a Palestinian State, 25 Penn State International Law Review 75-205 (2006).

Reuven (Ruvi) Ziegler, The French "Headscarves Ban": Intolerance or Necessity?, 40 John Marshall Law Review 235-266 (2006).

Colloquium: Religion and Immigration. Articles by Amelia J. Uelmen, Michael Scaperlands, Stephen H. Legomsky, Elizabeth McCormick, Patrick McCormick, Marta Vides Saade, Kathryn A. Lee and Michael J. Churgin. 83 University of Detroit Mercy Law Review 829-953 (2006).

Symposium: Law and Religion. McElroy Lecture by Cass R. Sunstein; articles by Deniz Coskun, Peter Cumper, Peter Edge, Silvio Ferrari, Charles I. Lugosi, Asher Maoz, Kurt Martens, Renata Uitz and Howard J. Vogel. 83 University of Detroit Mercy Law Review 567-827 (2006).

Businessman Challenges Indonesia's Limits On Polygamy

Indonesian law permits polygamy only where a first wife is childless, or terminally ill or unable to fulfill her sexual obligations and where that wife gives her consent. However recently a number of prominent Indonesians, claiming that Islam allows up to four wives, have ignored the legal restrictions. Now, according to the Sydney, Australia Herald, an Indonesian businessman has begun a court challenge to Indonesia's restrictions on polygamy. Muhammad Insa says that his right to religious freedom is being restricted by the Marriage Act (background), and has filed suit in the Constitutional Court challenging the Marriage Office's refusal to permit him to take a second wife without getting his present wife's agreement.

9th Circuit Decides Burden of Proof In Reverse Religious Discrimination Case

In a 9th Circuit case from last month, the court decided on the appropriate burden that a plaintiff must carry to avoid dismissal before trial in a case alleging "reverse" religious discrimination under Title VII. In Noyes v. Kelly Services, (9th Cir., May 29, 2007), a former Kelly Services employee alleged that her supervisor repeatedly favored and promoted his coreligionists-- members of the Fellowship of Friends-- and passed over Noyes for promotion because she was not share those religious beliefs. The court held that once the employer articulated a non-discriminatory reason to explain a prima facie showing of discrimination, the plaintiff needed to come forward with proof that the explanation was a pretext. At the summary judgment stage, plaintiff can raise enough of an issue that the case must go to trial if she presents either direct evidence of discrimination or indirect evidence that undercuts the credibility of the employer's explanation.

Georgia Officials Exclude Muslim Woman Wearing Hijab From Courtroom

In a press release yesterday, the Council on American-Islamic Relations said that security officers at the Valdosta, Georgia Municipal Court refused to allow a Muslim woman to enter the courtroom wearing her hijab (headscarf). The woman decided to plead nolo contendere to her speeding ticket, after being informed that court rules would prevent her from wearing her head covering into the courtroom at any time. Later, through the clerk of courts, Judge Vernita Lee Bender apologized, but apparently said "we have rules that everyone has to follow". CAIR has written Georgia's Attorney General asking him to take appropriate steps to prevent this kind of religious discrimination, which CAIR says violates federal civil rights protections and is inconsistent with the Georgia Code of Judicial Conduct.

Two Plaintiffs Lose Religious Discrimination Suits

Two Title VII employment discrimination decisions alleging religious bias were handed down this week. In Postell v. Greene County Hospital Authority, 2007 U.S. Dist. LEXIS 46593 (MD GA, June 27, 2007), a Georgia federal district court held that a nurse who had been fired had failed to prove religious discrimination, despite a letter from her supervisor that said: "You had an incredible opportunity to shine as a manager and most importantly as a Christian and you failed."

In Nuha Saabiraah El v. City of New York, 2007 U.S. Dist. LEXIS 46443 (SDNY, June 26, 2007), a New York federal district court dismissed on res judicata grounds a claim by a fired employee of the New York Department of Corrections. Plaintiff claimed that her dismissal violated her 1st and 14th Amendment and her statutory rights because the Department of Corrections, in disciplining her, was motivated by the fact that she was associated with the Moorish-American faith-- a group that DOC thought posed security concerns.

Michigan Supreme Court Rejects Church's RLUIPA Claim

On Wednesday, in Greater Bible Way Temple of Jackson v. City of Jackson, (MI Sup. Ct., June 27, 2007), the Michigan Supreme Court rejected a claim by Greater Bible Way Temple that Jackson, Michigan violated the Religious Land Use and Institutionalized Person's Act by refusing to rezone property on which the church wished to build an assisted living apartment complex. In a rather broad-based reversal of the court of appeals (see prior posting), the Supreme Court said:

We conclude that a refusal to rezone does not constitute an "individualized assessment," and, thus, that RLUIPA is inapplicable. Further, even if RLUIPA is applicable, the building of an apartment complex does not constitute a "religious exercise," and even if it does constitute a "religious exercise," the city of Jackson’s refusal to rezone plaintiff's property did not substantially burden plaintiff's religious exercise, and even if it did substantially burden plaintiff's religious exercise, the imposition of that burden is in furtherance of a compelling governmental interest and constitutes the least restrictive means of furthering that interest.

Two justices wrote concurring opinions urging reversal on narrower grounds. Yesterday's Jackson Citizen Patriot reported on the decision. [Thanks to Brian D. Wassom for the lead.]

City Amends Noise Ordinance and Settles Preacher's Challenge to Restrictions

The Jacksonville, Alabama News reported Wednesday that the city of Jacksonville has settled a civil rights lawsuit brought against it by Rev. Wesley Sewell challenging the city's restrictions on use of loudspeakers and its permit ordinance. (See prior posting.) The city will pay Sewell $500 in damages and $9500 in attorneys' fees. The settlement came after the city changed its loudspeaker ordinance to extend from 10 feet to 30 feet the distance sounds can project without violating the anti-noise ordinance.

British Sources Say Tony Blair Will Convert To Cathoicism

Largely overlooked in the U.S. media are reports out of Britain last week that Tony Blair, who has just resigned as Britain's prime minister, will convert to Catholicism. The Guardian is among those papers reporting on Blair's apparent decision. Blair's wife is Catholic and his children have been raised as Catholics. However, he has held off formal conversion apparently for political reasons. While there is not a specific ban on the prime minister being a Catholic, British law does bar the king or queen from becoming Catholic or marrying a Catholic. Christian Today last week reported that Blair's meeting last Saturday with Pope Benedict XVI was in part in preparation for his conversion. Commenting today on Blair's move, Ireland's Southern Star says that the remaining prohibitions on British monarchs embracing Catholicism, which stem from the 1701 Act of Settlement, violate the European Convention on Human Rights, Sec. I, Art. 9. In an interesting aside, the Southern Star article refers to the Old Bailey website that links to records of over 100,000 trials that took place between 1674 and 1834, including "cases of 'notorious papists' who suffered appalling death sentences for offences such as saying mass."

Moldova's President Rejects Parliament's Law On Religious Groups

Itar-Tass reported yesterday that Moldova's President, Vladimir Voronin, has refused to sign a new law on religious faiths passed by Parliament last month. He returned it to parliament for revisions, heeding objections raised by the Moldovan Orthodox archdiocese. Orthodox priests object that the law does not distinguish traditional denominations from newer religions that have multiplied in Moldova in recent years. They also say that the law does not distinguish pseudo-religious and commercial cults from mainstream religions. A long-standing dispute exists over whether the Moldovan Orthodox Church is a legitimate religious group. The Russian Orthodox Church says it is not, but Moldova granted it official recognition in 2002 after a decision of the European Court of Human Rights called for that step to be taken. (Background).

Fired University Chaplain Now Asserts A Title IX Discrimination Claim

After losing her attempt to get the U.S. Supreme Court to review her Title VII gender discrimination claims (see prior posting), former Gannon University chaplain, Lynette Petruska, has asked a federal district judge to permit her to file a claim under Title IX of the 1964 Civil rights Act. That provision requires gender equality by schools that receive federal funding. Petruska's Title VII claim was rejected under the "ministerial exception" doctrine, and at issue will be whether the same exception applies in Title IX cases. Yesterday's Philadelphia Daily News reports that Petruska, a former Catholic nun, is now an attorney in St. Louis.

President Helps Rededicate DC's Islamic Center

Yesterday, President George W. Bush participated in the rededication of Washington, DC's Islamic Center. The rededication took place 50 years after President Eisenhower attended the original dedication of the Center. In his remarks (full text), the President said:

The greatest challenge facing people of conscience is to help the forces of moderation win the great struggle against extremism that is now playing out across the broader Middle East. We've seen the expansion of the concept of religious freedom and individual rights in every region of the world -- except one. In the Middle East, we have seen instead the rise of a group of extremists who seek to use religion as a path to power and a means of domination.

The President also announced that, for the first time, he would appoint a special envoy to the Organization of the Islamic Conference as part of the country's efforts to reach out to Muslim communities around the world. A White House "Fact Sheet" emphasized the opportunity that exists to help forces of moderation oppose radicals who purport to act in the name of Islam.

British Schools Face Problems In Attempt To Serve Halal Lunches

Two local Councils in Britain find themselves in the middle of a dispute in the Islamic community over which bodies are the appropriate certifiers of Halal meat. Schools in the localities have halal meat on their lunch menus, but have recently changed their meat supplier. This Is Lancashire yesterday reported that the Lancashire Council of Mosques has urged parents to have their children select vegetarian options or take their own lunches until the controversy is resolved. The new supplier gets its meat from New Zealand, and the meat is certified by the non-profit Halal Food Authority. Salim Mulla, secretary of the Lancashire Council of Mosques, says they want the meat certified instead by the Halal Monitoring Committee. Lancashire County Council has replaced meat with an alternative option until the situation is resolved, while Blackburn with Darwen Borough Council is keeping halal meat on the menu, but is meeting with mosque council leaders to resolve any problems.

Judge Refuses To Keep Media Out of Imams' Civil Rights Trial

Omar T. Mohammedi, a New York attorney for the six imams who have filed a civil rights action after they were removed from a US Airways flight at the Minneapolis airport, has lost his bid to reduce media access to the trial proceedings. Mohammedi says that he and his clients have received anonymous death threats after inaccurate media coverage of the lawsuit. The Associated Press yesterday reported that U.S. District Judge Ann Montgomery refused Mohammedi's request that members of the media be removed from an electronic distribution list, that they be excluded from attending hearings in the case and that proceedings in the case be held in closed session. The judge also told Mohammedi that future communications in the case should be filed through the court's electronic filing system, instead submitting requests off the record as Mohammedi had done in seeking less media involvement.

New Abuse Charges Against Saudi Arabia's Commission for Prevention of Vice

The Associated Press reported yesterday that new charges of police brutality have been raised against an officer in Saudi Arabia's Commission for the Propagation of Virtue and the Prevention of Vice. Last week, three officers were charged with involvement in the death of a detained border patrol guard. (See prior posting.) The new charges involve last month's death in detention of Sulaiman al-Huraisi who was taken into custody after a raid on his house because he was suspected of having large amounts of alcohol. Alcohol is illegal in Saudi Arabia. The governor of Riyadh said that several officers who were not part of the official team charged with making the raid nevertheless took part in it. One of those individuals severely beat al-Huraisi.