Two Courts Reject Free Exercise Defenses To Liability For Clergy Sexual Abuse

Two recent cases have rejected First Amendment defenses by religious organizations to claims against them growing our of clergy sexual abuse charges. In Mary Doe SD v. Salvation Army, 2007 U.S. Dist. LEXIS 69728 (ED MO, Sept. 20, 2007), plaintiff sued the Salvation Army for sexual abuse by one of its Captains who sexually abused her when she was a teenage volunteer camp counsellor at a Salvation Army summer day camp. The Salvation Army raised First Amendment defenses to claims that it negligently failed to protect plaintiff and to breach of fiduciary duty claims. A Missouri federal district court rejected these, saying: "Certainly ... Defendant does not contend that protecting children from a child abuser, investigating child abusers, or supervising employees violate any doctrine or practice of the Salvation Army." The court also rejected Establishment Clause defenses.

In Young v. Gelineau, (RI Super., Sept. 20, 2007), a Rhode Island trial court rejected Free Exercise defenses raised by the Catholic hierarchy to claims against it growing out of plaintiff's sexual molestation by a priest. Christopher Young claimed that the Church is liable for permitting Priest John Petrocelli to have contact with him and other minors after the Church knew that Petrocelli was a child molester. The court rejected the Church's First Amendment defenses, holding that the court's inquiry into the claims "will merely constitute the application of a neutral law and will not impose upon or significantly restrict the Hierarchy Defendants’ religious beliefs or practices." The court went on to reject the argument that since hiring, retention and supervision of a priest is based on Canon law, the suit should be dismissed under the Church Autonomy doctrine.

Bureau of Prison Chapel Library Lists Published; Project Is Widely Criticized

The New York Times reported yesterday that the federal Bureau of Prisons is under pressure from all sides to change its policy of restricting the books that can be in prison chapel libraries. (See prior postings 1, 2, 3, 4.) The Republican Study Committee, a caucus of conservative House of Representatives members, wrote Bureau’s director Harley G. Lappin on Wednesday, saying, "We must ensure that in America the federal government is not the undue arbiter of what may or may not be read by our citizens." (Full text of letter.) However the Bureau of Prisons said it is not reconsidering its decision that stemmed from a 2004 Justice Department Inspector General's report warning that radical books that incite violence and hate may be on chapel library shelves.

Interestingly, along with this article, the Times has posted the list of acceptable books for each of 19 different religious groups that the Bureau of Prisons has placed on its Standardized Chapel Library Project lists. The Bureau took this approach after initial attempts to review every book in chapel libraries became unmanageable. Examination of the book lists is fascinating. The lists contain many audio-visual items as well as books. For some religious groups, the number of permitted items is well over 300, while other lists are much shorter. A list for "Other Religions" for example, contains only two books-- both on Christian Science. The Yoruba list has 76 items, while Messianic (i.e. Messianic Judaism) gets 60. The Catholic and Protestant lists are among the longest. The Jewish list is somewhat shorter with 134 items. Separate lists are furnished for Islam and Nation of Islam.

The Bureau told representatives of Christian and Jewish prison chaplains that a book could be restored to the chapel library if a prisoner requested it and a chaplain reviewed the book and sent a certification to the Bureau in Washington for review. Rabbi Aaron Lipskar, executive director of the Aleph Institute, said it is unrealistic to expect chaplains to have time to review books in this way. [Thanks to Melissa Rogers for the lead.]

Court Says Halloween Decorations Are Secular Symbols

Rivera-Alicea v. Gonzalez-Galoffin, 2007 U.S. Dist. LEXIS 69905 (D PR, Sept. 20, 2007), involves claims by a secretary in Puerto Rico's Department of Justice that she was retaliated against for complaining that "pagan" office Halloween decorations offended her Pentecostal Christian religious beliefs. In rejecting plaintiff's Establishment Clause claim, the Puerto Rico federal district court held:

Halloween decorations, like valentines, Easter bunnies, and egg hunts are all secular displays and activities that neither convey religious messages nor constitute religious symbols. Halloween lost its religious and superstitious overtones long ago. It has become instead a commercial holiday enjoyed by communities in its many forms of entertainment.

The court also rejected plaintiff's Free Exercise claim and her claim under various provisions of Puerto Rican law. However the court permitted plaintiff to move ahead with her claim of retaliation under Title VII of the 1964 Civil Rights Act based on her allegations that various actions were taken against her because she filed a complaint with the EEOC over the Halloween decorations.

3rd Circuit Rejects Free Exercise Challenge To Giving Minor "Morning After" Pill

On Friday, the U.S. Third Circuit Court of Appeals rejected free exercise and parental rights claims against the City of Philadelphia's Health Department in a suit alleging that a health center acted unconstitutionally when it furnished a 16-year old girl emergency contraception without first notifying her parents or encouraging her to consult with them. In Anspach v. City of Philadelphia, (3d Cir., Sept. 21, 2007), the court rejected both parental rights and First Amendment claims. The suit, brought by both the parents and the girl, argued that the health center misled Melissa Anspach when a staffer told her that the morning-after pill would prevent her from getting pregnant, without informing her that it could prevent the implantation of a fertilized egg. Melissa's religious beliefs saw this as abortion.

The court rejected Melissa's free exercise claim, finding that she was not coerced by the government into taking the pills and that she does not allege she ever informed the clinic staff about her religious beliefs. It also rejected a free exercise claim by Melissa's parents, holding that the Constitution does not require the government to ensure that children abide by their parents' religious beliefs. Much of the court's 47-page opinion focuses on-- and rejects-- substantive due process claims that parental rights were infringed. The Baltimore Sun's news blog reported on the case on Friday.

Pennsylvaina Suit Claims Religious Discrimination In Marriage License Law

Represented by the ACLU, a Pennsylvania couple has filed a religious discrimination suit against the Allegheny County Register of Wills who refused to issue them a marriage license that would allow them to marry without a third party officiating. Yesterday's Pittsburgh Tribune-Review and today's Wilkes Barre Times Leader report the couple was told that only members of the Quaker and Baha'i faiths-- traditional religions that have no clergy-- are permitted to self-officiate. Pennsylvania law (23 Pa. Consol. Laws Sec. 1503(b)) provides that a marriage ceremony can be conducted by members of a religion without clergy "according to the rules and customs" of the religious group. Mary Jo Knelly and David Huggins-Daines, who want to have a ceremony similar to that of the Quakers, but secular in content, say this amounts to preferential treatment of one religion over another. However Register of Wills Solicitor Timothy E. Finnerty wrote them that under Pennsylvania law, "There is no provision for the individuals to officiate at their own marriage." (See prior related posting.)

UPDATE: On Thursday, federal judge Joy Flowers Conti granted a temporary restraining order, requiring Allegheny County to issue a marriage license to Knelly and Huggins-Daines. While the court did not make a final ruling on how Pennsylvania's law should be interpreted, Allegheny County said that in the future it would grant self-uniting marriage licenses without regard to religion. (Pittsburgh Post-Gazette, Sept. 28).

House Passes Bill With Funds Earmarked For Group Promoting Creationism

Yesterday's New Orleans Times-Picayune reports that the House has passed an sent to the Senate an appropriations bill containing a $100,000 earmark for a group promoting creationism to use "to develop a plan to promote better science education." Louisiana Senator David Vitter placed the earmark in the bill to benefit nonprofit Louisiana Family Forum, a group that has taken the lead in the state in promoting "origins science". The report authorized by the earmark will include an evaluation of a 2006 policy change by the Ouachita Parish School Board that permits teachers to introduce alternative theories to evolution in science classes. Two of Vitter's paid 2004 campaign staff are also employees of the Family Forum.

Hospital Chaplain Fired for Objecting To Gideons' Bible Distributions

Jews on First yesterday reported on the forced resignation of hospital chaplain Rev. Kay Myers by Salisbury, Maryland's Peninsula Regional Medical Center after she raised objections to Gideons going room-to-room delivering Christian Bibles to hospital patients. The Bibles contained only the New Testament and the book of Psalms. Not only was Myers, a Presbyterian minister, concerned about keeping the hospital's chaplaincy non-sectarian, but she also feared that giving the Gideons access violated patient privacy under HIPAA. In addition, the hospital's infection control department was concerned that the Bibles might harbor resistant organisms. Hospital CEO Alan Newberry told Myers that as Director of Pastoral Care, she should be taking the lead in placing Bibles in patient rooms.

Israel's Yom Kippur-Based Daylight Savings Time Shows Religious-Secular Split

Today's Chicago Tribune reports that in Israel, decisions about the date on which daylight savings time ends reflects the broader debate over the role of religion in public life. Two years ago, in a compromise bill, Parliament set the end of daylight savings time as the Sunday before Yom Kippur. The move was taken so that sunset-- the time at which observant Jews can break their Yom Kippur fast-- will arrive an hour earlier. Yom Kippur begins this evening, so daylight savings time has ended in Israel-- well ahead of the time that it ends in Europe and the United States. Secular Jews in Israel, however, are complaining because they are deprived of the extra hour of light after work. They say this is an example of how the interests of Israel's religious minority are interfering with the lifestyle of the majority of the population who are secular Israeli Jews.

House Passes Vietnam Human Rights Act

On Tuesday (by a vote of 414-3) the U.S. House of Representatives passed H.R. 3096, the Vietnam Human Rights Act. Among other things, it prohibits any increase in nonhumanitarian foreign aid to Vietnam until the President certifies that various human rights goals have been met. Among these are "substantial progress toward respecting the right to freedom of religion, including the right to participate in religious activities and institutions without interference by or involvement of the Government" and "substantial progress toward releasing all political and religious prisoners". The bill, which now goes to the Senate, also calls for the State Department to submit an annual report on Vietnam's progress in various areas of concern. Vietnam's News Service today published an opinion piece criticizing passage of the bill.

Authorities Prosecuting Promoters of "Corporations Sole" Scams

Today's Arizona Republic reports on efforts of federal and state law enforcement to prosecute promoters of "corporations sole" scams-- the use by individuals for tax evasion purposes of entities intended for church assets. A corporation sole, permitted under the laws of 17 states, is legitimately created by an individual church leader in order to provide an entity to hold church property and funds. A corporation sole does not need to file an income tax return. Promoters have bilked many individuals who have no connection to a church by charging them high fees to set up a corporation sole for their personal assets. The promoters incorrectly tell the individuals that this excuses them from paying income taxes.

China Appoints Vatican-Approved Bishop

In another step toward reconciliation with the Vatican, China's state-controlled Catholic church today appointed as bishop of Beijing a cleric who has the approval of the Vatican. The Associated Press reports that Joseph Li Shan, in taking the traditional oath to the Church, also added a promise to "lead all the priests seminarians and nuns of this diocese in adhering to the nation's constitution, maintaining national unification and social stability." (See prior related posting.)

Controversy Over Funding Denial For Christian Concert At University of Arizona

A decision last week by the Student Senate at the University of Arizona has created controversy. The organization refused to fund a Christian concert, already scheduled by Priority Campus Ministries, a student group. The concert, "Overflow", had been funded for the last seven years, but a recent change in the bylaws of the Associated Students of the University of Arizona was applied to deny funding this year. The bylaws now exclude funding for events that exclude some students, involve proselytizing and worship, are expressly political, or are merely for entertainment or commercial benefit. The concert went on with funding from local churches. An editorial in yesterday's Arizona Daily Wildcat reviews the controversy.

Qatar Starting New Moderate Islamic Satellite Channel

Gulf News reported yesterday that Qatar is developing a new Islamic satellite television channel designed to counter the growing number of channels in the Arab world that are promoting Sunni- Shiite conflict. The Organization of the Islamic Countries has approved the project. The new channel will focus on Islam's traditions of unity and tolerance.

Article Explores Trend Toward Ban On Wearing Religious Symbols

IBN carries an interesting lengthy article today on the trend in Western Europe (and to some extent in the U.S.) to ban the wearing of religious symbols-- particularly non-European cultural and religious symbols. The article, titled Ban on Asian symbols: A Westside story of bias? is worth a full read.

State Appeals Court Says Custody Order Burdens Father's Religious Exercise

A Minnesota court of appeals has ordered a lower court to narrow the order it issued in a custody proceeding that prohibited the non-custodial father from discussing "inappropriate" religious topics with his children. In In re the Marriage of: Barbara A. Kinley, (MN Ct. App., Sept. 18, 2007) the court held that while the lower court could issue an order protecting the custodial parent's right to determine her children's religion, here the order impermissibly burdened the father's free exercise of religion. The trial court failed to make findings supporting the restrictions and failed to place limits on their scope and duration. The prohibition on the father's reading of bible stories to the children was not narrowly tailored and the ban on discussing "inappropriate" religious ideas is vague and overbroad.

Christian Pakistani Teenager Cleared of Blasphemy Charges

In Pakistan today, a judge unexpectedly cleared 18-year old Shahid Masih of blasphemy charges. Journal Chretien reports that prosecution witnesses dropped their claims that they had been told that the defendant, a Christian, had torn pages from a book containing Quranic verses.

Quebec Jewish Hockey Player Surrenders Religious Observance To Game Schedules

In the Canadian provice of Quebec this week, just as the government's Consultation Commission on Accommodation Practices Related to Cultural Differences began hearings, Orthodox Jewish hockey player Benjamin Rubin announced that he had agreed to somewhat less accommodation as he begins to play for the Gatineau Olympiques of the Quebec Major Junior Hockey League. Today's Canadian Jewish News reports that Rubin, who has NHL ambitions, played for the Quebec (City) Ramparts last year under an arrangement that excused him from all games on the Jewish Sabbath, as well as Jewish holidays. That arrangement ultimately did not work out well. The Olympiques schedule for this year has over half of the team's game slotted for Friday night or Saturday. Rubin has agreed that he will play in these and will only take off for major Jewish holidays. Rubin's father said that the family had consulted several "esteemed" Orthodox rabbis. While none gave a formal ruling, most did not consider playing hockey a violation of the Sabbath if it is not for pay. Travel for the games however has posed the greater problem, as the Olympiques insists that Rubin travel with the rest of the team.

One 10 Commandments Display Stays, Another Goes, In Kentucky

A Kentucky federal district court this week upheld the constitutionality of a display of the Ten Commandments as part of a "Foundations of American Law and government" display in the Rowan County (KY) Fiscal Courtroom. The "Foundations" display was authorized by the Fiscal Court after the ACLU challenged an earlier posting of the 10 Commandments among 17 other miscellaneous documents. In American Civil Liberties Union of Kentucky v. Rowan County, Kentucky, (ED KY, Sept. 17, 2007), the court concluded that "plaintiffs have failed to show that religion was the county’s predominant purpose in posting the Foundations Display – it may have been a purpose, but it was not the predominant purpose."

Yesterday's Lexington Herald-Leader reported on the decision, and also reported that in a September 5 decision, the same judge found that a Ten Commandments display inthe Garrard County courthouse was unconstitutional. The Ten Commanments were displayed along with other documents linking government and religion. The court found that in this case, "a reasonable person would conclude that the county's display has the effect of endorsing religion."

Third Circuit Finds JCC Entitled To Title VII Religious Exemption

Yesterday, the U.S. 3rd Circuit Court of Appeals, in a 2-1 ruling, issued an important decision interpreting the scope of the religious institutions exemption in the 1964 Civil Rights Act. In LeBoon v. Lancaster Jewish Community Center Association, (3rd Cir., Sept. 19, 2007), an Evangelical Christian bookkeeper who lost her job at a Jewish Community Center claimed that the JCC was not entitled to claim an exemption from religious discrimination claims under Section 702 of the Civil Rights Act (42 USC 2000e-1(a)). She argued that the JCC "lacked financial or administrative ties with a synagogue and its nature and purposes were primarily cultural, not religious." The majority, however, disagreed, finding "the LJCC was entitled to the protection of Section 702 during the period under scrutiny because its structure and purpose were primarily religious."

Judge Rendell, dissenting, argued that "Congress understood § 702(a) to cover only those entities that, unlike the LJCC, are controlled by a religious sect." He said that the majority's approach places the court in the position of analyzing the activities of religiously inclined organizations to determine which are religiously meaningful.

The court unanimously rejected a retaliation claim by the plaintiff, crediting instead the JCC's explanation that LeBoon was terminated because of the financial problems the JCC was experiencing.

Ontario Catholic Schools Debate HPV Vaccine Program

In the Canadian province of Ontario, the government has begun a school-based program of offering the HPV vaccine to girls in grade 8. Now Catholic schools throughout the province are debating whether to permit the programs. The Hamilton Catholic School Board voted on Monday to allow public health officials into the schools. Tuesday's National Post reported that the Conference of Catholic Bishops issued a statement expressing regret that the program was introduced without more study. Their statement said that the decision is ultimately up to parents, but emphasized that HPV can only be contracted through sex, and sex outside marriage carries "profound risks to a young person's spiritual, emotional, moral and physical health." It went on: "Sexual activity is appropriate only within marriage. Outside of marriage, abstinence is not only clearly the choice that leads to spiritual and moral well being, but it is obviously the best protection against risks of disease."

DC Court Orders Members of Congress To Produce Documents On Mt. Soledad Law

The judicial decisions in the Mt. Soledad Cross cases never seem to end, as plaintiffs attempt to show that the Establishment Clause was violated by legislation under which the federal government acquired the war memorial. Plaintiffs have been attempting to gather evidence to show that Congress had a religious purpose in enacting legislation transferring control of the site to the federal government. A California federal district court has issued two decisions refusing to permit plaintiffs to take the depositions of members of Congress and their advisers on the issue of motivation. (See prior postings 1, 2.) Now, however, in Jewish War Veterans of the United States v. Gates, (D DC, Sept. 18, 2007), the D.C. federal district court has issued a 55-page opinion and an order permitting plaintiffs to subpoena some documents from three members of Congress.

The court held that "each category of documents requested has the potential to shed light on at least one of the three Lemon prongs. Foremost among these is legislative purpose." Responding to defendants' claim that production of the documents are shielded by the Constitution's "speech or debate" clause, the court said:

The Members are correct that... informal information gathering in connection with or in aid of a legitimate legislative act is itself protected by the Speech or Debate Clause. Such information gathering may take the form of communications with organizations, constituents, or officials of a coordinate branch. The Members are likewise correct that the Clause prohibits inquiry into an individual legislator's motives for engaging in particular legislative acts. At the same time, JWV is correct that accepting the Members' position on these points does not necessarily shield from production all documents responsive to specifications 3, 5, 7 and 9. Documents that reflect a Member's efforts to persuade Executive Branch officials to use existing statutory authority, for example, must be produced, as must documents that reflect legislative purpose, rather than the motives of individual legislators.

The court left it in part to the defendants to decide which documents must be produced under the principles announced in the court's decision. Today's New York Sun reports on the decision.

Soldier Sues Army Claiming Religious Discrimination

A press release distributed by the Military Religious Freedom Foundation yesterday announced a religious discrimination lawsuit that has been filed against the Department of Defense and an Army Major:

(MRFF) and U.S. Army Specialist Jeremy Hall have filed a lawsuit against Defense Secretary Robert Gates and Major Paul Welborne in U.S. District Court in Kansas City, Kansas citing a pattern of military practices that discriminate against non-Christians in the military. The lawsuit also cites overt government support of private civilian religious organizations and activities.

... In August of this year, Specialist Hall, after receiving permission from a chaplain at Contingency Operations Base Speicher, Iraq, posted flyers around his base announcing a meeting of atheists and other non-Christians.... Army Major Paul Welborne disrupted the meeting and threatened to retaliate against Hall by charging him with violating the Uniform Code of Military Justice and vowed to block Hall's reenlistment in the Army because of Hall’s role in organizing the meeting, a violation of Hall's First Amendment rights under the Constitution.

The complaint charges that Hall, who is based at Ft. Riley, Kansas, has been forced to "submit to a religious test as a qualification to his post as a soldier in the United States Army," a violation of Article VI, Clause 3 of the Constitution.

The International Herald Tribune has also published a report on the lawsuit.

Methodist Pavillion Loses Tax Exemption For Refusing To Host Civil Unions

New Jersey's Commissioner of Environmental Protection has refused to renew the real estate tax exemption for the Ocean Grove Boardwalk Pavilion which is operated by an organization affiliated with the Methodist Church, according to an article yesterday in Edge. The exemption denial came because the Ocean Grove Camp Meeting Association (OGCMA) that owns the Pavilion has refused on religious grounds to make it available for same-sex couples to use for civil union ceremonies. Two lesbian couples have filed a complaint with the state Division of Civil Rights arguing that the Pavilion is a public accommodation subject to the state's non-discrimination laws. The Pavilion is broadly used by the public, but is also used by OGCMA for Sunday worship services and a Youth Ministry program. Last month a federal judge refused to order a halt to the state's civil rights investigation. The real estate tax exemption for the rest of the boardwalk and the beach, both of which are also owned by OCGMA, however were renewed. (See prior related posting.)

Nebraska State Senator Sues God To Protest Frivolous Lawsuits

Ernie Chambers, a Nebraska state senator, has filed a lawsuit in a Douglas County, Nebraska state court naming God as defendant. The suit accuses God of causing, death destruction and terror through floods, earthquakes, hurricanes, tornadoes and plagues. The lawsuit asks for a permanent injunction ordering defendant to cease harmful activities. Chambers says the court has jurisdiction because since Defendant is omnipresent, God is personally present in Douglas County. Chambers filed the suit to protest frivolous litigation, particularly a suit filed recently by Tory Bowen claiming that her free speech rights were violated when a state judge barred words such as "rape" and "victim" in a sexual assault trial. Yesterday both the AP and the Christian Post report on these developments.

UPDATE: On Thursday, the Christian Post reported that a one page document mysteriously appeared on the counter in the clerk's office at the Douglas County Court House. Captioned a "Special Appearance", it argues that Chambers' lawsuit should be dismissed because there was not proper service of a summons on defendant.

Paper Profiles Bush's Orthodox Jewish Attorney General Nominee

Today's Jerusalem Post points out that President George Bush's nominee for U.S. Attorney General, Michael Mukasey, is an Orthodox Jew. If confirmed, Mukasey would be only the second Jewish Attorney General in U.S. history.

Turkey's Prime Minister Wants To Permit Headscarves To Be Worn At Universities

BBC News reports that Turkish Prime Minister Recep Tayyip Erdogan has said, in a Financial Times interview, that he wants to lift Turkey's ban on Muslim women wearing headscarves at state universities. President Abdullah Gul supported Erdogan, saying: "It is much better for [women who are covered] to go to university than to stay home and be isolated from social life." In Turkey, the headscarf has become a symbol of a perceived threat to the country's secular foundations, and was a major issue in the Parliamentary election of Gul as President earlier this year. Military and judicial leaders oppose any changes that would erode Turkey's official secularist rules.

Mukasey Decided Few Religion Cases As Judge

A Lexis search indicates that Michael Mukasey, President Bush's nominee for Attorney General, decided only few cases involving free exercise claims during his 18-year tenure as a federal district judge in New York. The major decision he wrote was in United States v. Rahman, 1994 U.S. Dist. LEXIS 10151 (SDNY, 1994), in which defendant, charged with conspiracy to commit urban terrorism, raised First Amendment objections. Mukasey wrote: "it is the rare offense, particularly the rare conspiracy or aiding and abetting offense, that is committed entirely in pantomime. However, that speech -- even speech that includes reference to religion -- may play a part in the commission of a crime does not insulate such crime from prosecution."

In three cases, Mukasey denied prisoner free exercise claims: Robinson v. Scully, 1990 U.S. Dist. LEXIS 3632 (SDNY, 1990) (removal of prisoner's kufi during search); Prins v. Coughlin, 1995 U.S. Dist. LEXIS 8673 (SDNY, 1995) (Jewish prisoner protests lack of hot kosher food); Salahuddin v. Mead, 2000 U.S. Dist. LEXIS 3932 (SDNY, 2000) (Muslim prisoner denied access to chaplain during prison work program hours).

Candidates' Religious Views Continue As An Issue Among Christian Conservatives

A "Value Voters" debate among Republican presidential candidates, sponsored by several conservative Christian groups, was held yesterday in Ft. Lauderdale, Forida. However, the major Republican contenders did not participate, according to the Florida Sun-Sentinel. Seven of the second-tier candidates did take part: Mike Huckabee, Tom Tancredo, Ron Paul, Sam Brownback, Duncan Hunter, Alan Keyes and businessman John Cox. Among the information that came out at the debate was when several of the candidates first accepted Jesus as their personal savior. WorldNet Daily also reports on the debate.

Meanwhile, the Florence (AL) Times Daily says that Fred Thompson's performance on the campaign trail is causing concern among conservative Christian voters. Thompson has said that he does not belong to a church in his home community in Virginia and does not attend church regularly. He says he attends services when he visits his mother in Tennessee. He also has declared that he will not talk about religion in his campaign.

Pope Comments On Church-State Relations

Catholic World News yesterday reported on remarks made by Pope Benedict XVI as he accepted the credentials of Ireland's new ambassador to the Vatican:

Speaking about the broad question of Church-state relations in a democratic society, Pope Benedict said that the faith "serves all of society by shedding light on the foundation of morality and ethics, and by purifying reason, ensuring that it remains open to the consideration of ultimate truths and draws upon wisdom." In making that contribution, he said, the Church does not threaten the proper authority of the state, but "keeps public debate rational, honest and accountable."

Zenit reprints additional portions of his remarks.

South Korea To Permit Alternative Service For Conscientious Objectors

South Korea's Defense Ministry has announced that for the first time it will permit religious conscientious objectors to perform alternative service. Today's Korea Herald says the government will introduce the option of serving in special care hospitals instead of the army by 2009. Veterans groups say they will oppose the plan, arguing that it will undermine compulsory military service and promote inequality.

California City To Consider Return of Creche To Public Property

The Sonoma (CA) News reports that at this week's City Council meeting, freshman Council member August Sebastiani will propose that the city bring back a creche display to the city's Sonoma Plaza this Christmas season. The Sonoma Valley Ministerial Association previously moved the display to a local church in order to avoid controversy, but Sebastiani says that a poll shows 72% of the people want it returned to public property. City attorney Tom Curry says that in order to meet constitutional requirements, the city must either include the creche as part of a broader holiday display along with secular symbols and religious symbols from various traditions, or permit a private group to set up the creche under a policy that allows anyone to set up a display on a first-come first-served basis regardless of the display's content.

No Religious Discrimination In Denial Based On Religious Arguments

In Boston v. Dawn Unknown, 2007 U.S. Dist. LEXIS 67939 (ED MO, Sept. 13, 2007), a Missouri federal district judge held that St. Louis Fitness Club employees did not engage in religious discrimination when they failed to renew plaintiff's membership in the Club because he had engaged in heated debates about religion with the club's staff.

Creationism Group Using Copyright Law To Silence Critics On YouTube

Although the reports coming in the last few days are sketchy, apparently a group that promotes Creationism as factual science is using the Digital Millennium Copyright Act to silence its critics that post videos on YouTube. The DMCA provides a safe harbor to online service providers who take down content promptly after being notified that it infringes a copyright. (Background). Apparently, unsupportable DMCA notices of infringement are being filed by Creation Science Evangelism against any YouTube video that criticizes its founder, Kent Hovind. (Panda's Thumb, Slashdot). In order to get the videos restored, under the DMCA their producers need to file a counter-notification with YouTube. However, apparently YouTube is closing the accounts of individuals who have DMCA notices filed against them before they get a chance to file their objections. (RichardDawkins.net).

California Supreme Court To Hear Episcopal Church Dispute

Last Thursday, the California Supreme Court voted unanimously to grant review in the Episcopal Church Cases. The lower court (see prior posting) held that it should give deference to the highest adjudicatory authorities of the Episcopal Church, instead of applying neutral property principles to decide whether three break-away congregations or the Episcopal Church USA own the property on which the local churches are located. Virtue Online last week reported extensively on the case.

New Articles, Books and DVD's of Interest

From SSRN:

• John Mikhail, The Free Exercise of Religion: An American Perspective, (chapter in Matthias Mahlmann and Hubert Rottleuthner, eds., Ein neur Kampf der Religionen? Staat, Recht und religiose Toleranz (2007)).


• Haider Ala Hamoudi, The Muezzin's Call and the Dow Jones Bell: On the Necessity of Realism in the Study of Islamic Law, (American Journal of Comparative Law, Vol. 56, No. 2, 2008).


• Margaret F. Brinig, Children's Beliefs and Family Law, (Notre Dame Law School Legal Studies Research Paper Series, Sept. 11, 2007, Forthcoming).


• Martha Minow, Should Religious Groups Be Exempt from Civil Rights Laws?, (Boston College Law Review, Forthcoming).


• Martha Minow, Tolerance in an Age of Terror, (Southern California Interdisciplinary Law Journal, Vol. 16, No. 3, 2007).

From SmartCILP:

• Roger W. Bowen, Exploring the Role of Religion, 53 Loyola Law Review 157-163 (2007).
  
• Catholicism and the Court: The Relevance of Faith Traditions to Jurisprudence. Keynote address by Hon. Diarmuid O'Scannlain; panel articles by Margaret O'Brien Steinfels, Michael J. Gerhardt, Sheldon Goldman, Edward A. Hartnett, Brian Z. Tamanaha, Sanford Levinson, Robert F. Cochran, Jr., Scott C. Idleman and Hon. Joan B. Gottschall. 4 University of St. Thomas Law Journal 157-341 (2006).

Vol. XXII, No.2 of the Journal of Law and Religion (2006-07) has recently been published.

Recent Books:

• Stephen Bates, God's Own Country: Tales from the Bible Belt, (Hodder & Stoughton, July 2007), reviewed by The Guardian.


• Mark Lilla, The Stillborn God: Religion, Politics and the Modern West, (Alfred A. Knopf, 2007), reviewed by the Wall Street Journal and the New York Times.

New DVD:

• Baptist Center for Ethics, Golden-Rule Politics: Reclaiming the Rightful Role of Faith in Politics, (2007), reviewed by The Tennessean.

Pennsylvania Weddings By Clergy Without Congregations Ruled Invalid

Earlier this month, a York County, Pennsylvania judge ruled that Pennsylvania law limits clergy who can perform weddings to those who have a "regularly established church or congregation." (23 Pa. Consol. Stats. 1503). Law.com reported last week on the decision that came in the case of a couple who broke up seven months after their wedding ceremony was performed by a Universal Life Church minister who was ordained online. Apparently the effect of the ruling was to eliminate the need for the couple to obtain a divorce. Philadelphia's NBC10 outlines the implications of the ruling on other couples.

Israeli Rabbinate Fears Conversion Efforts During Sukkot Festivities

In Israel, many celebrations and events are scheduled during the week-long Jewish holiday of Sukkot that begins this year on the evening of September 26. One of these is the annual parade in Jerusalem that attracts thousands of foreign tourists as well as Israelis. According to YNet News (Sept. 12), this year an official committee appointed by the Chief Rabbinate says that Jews should not participate in the parade, or in various Feast of Tabernacle activities planned by International Christian Embassy Jerusalem. The Rabbinate fears that the events will be used by Christian missionaries to attempt to convert Jews. The Jerusalem municipality however issued a statement saying that "participation (in the parade) is planned in advance and approved by the city, whose inspectors wouldn't allow a missionary group or any other political group to attend the parade." Christian Embassy also says that it is not a missionary organization.

Reward Offered For Assassination of Artist Who Drew Offensive Muhammad Cartoon

CBS News reported on Saturday that al Qaeda in Iraq leader Abu Omar al-Baghdadi has offered a $100,000 reward for the assassination of artist Lars Vilks, whose drawing of Muhammad's head on a dog was published in a Swedish newspaper last month. (See prior posting.) Al-Baghdadi said the reward would be increased to $150,000 if Vilks was "slaughtered like a lamb". He also offered a $50,000 reward for the killing of the editor of Nerikes Allehanda, the paper that printed Vilks' drawing. Al-Baghdadi also threatened strikes on Swedish companies if the "crusader state of Sweden" did not apologize. Swedish Prime Minister Fredrik Reinfeldt has already invited 22 ambassadors who represent Muslim countries in Sweden to a meeting to discuss their concerns.

Recent Prisoner Free Exercise Cases-- District, Circuit and State Decisions

In Kay v. Bemis, (10th Cir., Sept. 11, 2007), the U.S. 10th Circuit Court of Appeals reversed a Utah district court's dismissal of a prisoner's complaint that he had been denied tarot cards, incense, and religious books. It found several errors in the trial court's approach, including its insistence that the use of tarot cards and other items be "necessary" to the practice of the prisoner's Wicca religion. The appellate court said that it is enough that the prisoner sincerely believed in use of the requested items.

In Travillion v. Coffee, (3d Cir., Sept. 12, 2007), the U.S. 3rd Circuit Court of Appeals rejected Establishment Clause and Equal Protection challenges to actions of the food service contractor for the Allegheny County (PA) jail. During the 2004 Lenten season, it served vegetarian meals to all inmates, regardless of their religious affiliation.

In Williams v. Thurmer, 2007 U.S. Dist. LEXIS 65628 (ED WI, Aug. 27, 2007), a Wisconsin federal district court held that plaintiff stated a claim under the Free Exercise clause and RLUIPA when he alleged that prison officials prevented him from obtaining the Quran and other religious material and from cleaning himself prior to praying. He also adequately stated an Equal Protection claim, alleging that Christian inmates could possess Bibles while he was not permitted to possess a copy of the Quran.

In Messere v. Dennehy, 2007 U.S. Dist. LEXIS 65529, (Aug. 8, 2007), magistrate's report adopted, 2007 U.S. Dist. LEXIS 65442 (D MA, Aug. 30, 2007), a Massachusetts federal district court denied defendant's motion to dismiss a suit brought against her by a prisoner who was denied transfer to a lower security prison because he refused to attend religious-based AA/ NA programs.

In McGowan v. Cantrell, 2007 U.S. Dist. LEXIS 64534 (ED TN, Aug. 30, 2007), as part of a case asserting a series of claims, a prisoner alleged that his Free Exercise rights were violated when prison authorities took his Bibles, Bible Dictionary, and Bible Concordance away from him for one day. The court concluded that plaintiff had not demonstrated that he was denied a reasonable opportunity to practice his religion.

In Williams v. Fleming, 2007 U.S. Dist. LEXIS 67738 (WD VA, Sept. 13, 2007), plaintiff complained that prison authorities improperly interfered with his religiously motivated attempt to fast for 40 days. The court held that there are valid penological interests for prohibiting an inmate from fasting for that period of time. It also rejected his claims that officials retaliated against him because of his exercise of his religious beliefs.

In Andersen v. Griffin, (CA 4th Dist. Ct. App., Sept. 13, 2007), a California appellate court rejected a claim by an inmate held in protective custody that the Establishment Clause was violated by a correctional program coordinator who frequently tuned the television set watched by inmates to a religious channel that promoted a single religion. Plaintiff asserted that this amounted to promoting a specific religion to the inmate population.

Another Interesting Installment In the Mt. Soledad Cross Litigation

Last week, yet another court decision in the litigation over the Mt. Soledad, California cross and memorial was handed down. In April, a California federal district judge held that plaintiffs challenging the constitutionality of the legislation authorizing the United States to acquire the Mount Soledad Veterans Memorial could not depose Congressman Duncan Hunter about his motivation in supporting the legislation. In reaching this conclusion, the court relied heavily on the Constitution's "speech or debate" clause. (See prior posting.) So plaintiffs then tried a different route. They sought to depose Charles Li Mandri, who is West Coast Regional Director of the Thomas More Law Center. Li Mandri was an advisor to Rep. Hunter on issues related to the Mt. Soledad cross, even though he was not on Hunter's staff.

In Trunk v. City of San Diego, 2007 U.S. Dist. LEXIS 67766 (SD CA, Sept. 13, 2007), the California federal district court quashed the subpoena and issued a protective order to LiMandri. It held that questioning LiMandri would intrude into matters protected by the "speech or debate" clause and would "produce a harmful chilling effect on the right of federal legislators to gather information and consult with paid or non-paid advisors with regard to prospective legislative activities and decisions."

A second ground for quashing the subpoena is perhaps the most interesting. The court said that the Lemon test for determining whether there has been an Establishment Clause violation looks at whether an informed objective observer would perceive that the government has endorsed religion by its challenged action. However, "Mr. LiMandri does not fit the mold of an objective observer. Any testimony Mr. LiMandri may therefore have regarding his observations of the memorial are unhelpful and irrelevant to the Lemon test's effect prong." Finally the court relied on the attorney-client privilege as well as a basis for its conclusion that LiMandri should not be forced to testify.

D.C. Church's Meeting Held Invalid, Negating Vote To Oust Pastor

A District of Columbia Superior Court judge last week ruled that a contested meeting of members of the Shiloh Baptist Church was invalidly called because the notice required by the Church's Constitution was not given. Yesterday's Washington Post reports that at the meeting, held in August in the Church's parking lot, 138 Church members voted to fire the Church's pastor, Rev. Wallace Charles Smith. While Smith won this round, more litigation is pending against Rev. Smith and his supporters. A suit charging breach of contract, fraud and breach of fiduciary duty has been filed in the battle between Church factions. Smith's detractors say he has taken an outside job and has wasted millions of dollars by failing to make needed repairs to the Church's building. Numerous lawyers, as well as public relations firms, are now part of this high profile dispute.

D.C. Circuit Hears Arguements on Application of RFRA to Guantanamo

On Friday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments in Rasul v. Gates, a case in which four British nationals who were formerly held as detainees at Guantanamo Bay have sued alleging that they were repeatedly harassed as they tried to practice their religion while in custody. The district court held that the Religious Freedom Restoration Act applies to non-resident aliens at Guantanamo. (See prior posting.) On appeal the government argues that RFRA does not apply to aliens outside the U.S. Today's Baltimore Sun reports on the oral arguments at which Judge A. Raymond Randolph asked whether affirming the district court's holding would mean that prisoners abused at Abu Ghraib to also sue. Plaintiffs' counsel Eric Lewis answered, "One place at a time, your honor."

Religious Schools In Britain Are Focus of Government Policies

Friday's Jewish Chronicle reports that the head of Britain's Charity Commission, Dame Suzi Leather, has indicated that she will give a narrow interpretation to a provision in Britain's Charities Act 2006. Under the new law, private religious schools will be required to show that their educational activities provide a "public benefit" in order to maintain their advantageous tax status. Leather said that "public benefit" will require that activities extend beyond “a narrow, exclusive group” and that they benefit those on low incomes. The Chronicle says that the "narrow group" test may threaten 45 ultra-Orthodox Jewish schools that only admit children who come from rigidly observant Jewish families.

Meanwhile, Britain's Department for Children, Schools and Families last week released a document titled Faith in the System. The document, a joint statement with Christian, Hindu, Jewish, Muslim and Sikh supporters of faith schools, seeks to increase understanding of the role of publicly-funded schools with a religious character.

7th Circuit Rejects Free Exercise Challenge To O'Hare Airport Expansion

Last week, the U.S. 7th Circuit Court of Appeals upheld an Illinois district court’s denial of a preliminary injunction in one of the numerous lawsuits that have been filed to prevent expansion of Chicago’s O’Hare Airport. At issue in this case are challenges to Chicago’s plans to take by eminent domain a cemetery belonging to St. John’s United Church of Christ. In St. John’s United Church of Christ v. City of Chicago, (7th Cir., Sept. 13, 2007), the court, in a 2-1 decision, rejected religious freedom and other claims growing out of the Church's belief that remains buried in the cemetery must not be disturbed until Jesus raises them on the day of Resurrection.

The Court found that no free exercise violation occurred when the Illinois legislature amended the state’s Religious Freedom Restoration Act to exclude from its provisions Chicago’s actions in relocating cemeteries or graves as part of carrying out the O’Hare expansion. The amendment was found both to be a neutral law of general applicability and to meet the strict scrutiny test. The Court also rejected challenges under the Equal Protection Clause and RLUIPA.

Judge Ripple, dissented, saying:

I believe that the amendments to the Illinois Religious Freedom Restoration Act … made in the O’Hare Modernization Act … violate the Free Exercise Clause, and, for that reason, must be subject to strict scrutiny. I further believe that there remain factual questions regarding whether the City of Chicago … has shown that the proposed modernization and expansion plan of O’Hare Airport is narrowly tailored to meet the compelling interest the City claims. These factual issues render dismissal inappropriate at this stage in the litigation.

Chicago Business and the Wayne (IL) Republican both report on the decision. (Also see prior posting.)

State Department's 2007 Report On International Religious Freedom Released

On Saturday, the State Department released its 2007 Report on International Religious Freedom (full text). Ambassador John V. Hanford III answered reporters' questions on the Report. He pointed out that the Department will not release its list of “countries of particular concern” until later this year.

In answer to a question about religious freedom in Iraq, Hanford said:

what we're dealing with in Iraq is really a security situation that makes it difficult for religious practice to occur in a normal way. The constitution of the new Iraqi Government actually provides rather robust guarantees, and this is something we're very pleased to see because it's a very good constitution for that region of the world. But religious minorities are vulnerable, sometimes due to their small numbers and lack of organization. For the most part, people are getting caught in the crossfire. In the case of these minorities, though, there have been cases where it's clear that certain groups have been targeted.

The real problem that we're dealing with is that with the sectarian violence, not necessarily focused upon religious practice, that at the same time religious practice winds up being affected.

Ohio Supreme Court Asked To Rule On Religious Evidence In Support Proceeding

Spero News reports on a petition for writs of prohibition and mandamus filed with the Ohio Supreme Court of Sept. 12 by Marie Macfarlane, a family law activist who has conducted a campaign against no-fault divorce. The petition in Macfarlane v. Tanner (full text) challenges a ruling made by a Cuyahoga County magistrate in a child support proceeding brought against Macfarlane by her former husband who was awarded custody of their four children. Magistrate James Tanner refused to permit Macfarlane introduce evidence that she and her husband agreed to follow the teachings of the Catholic Church in their relation to each other, including the belief that women should not be required to work outside the home. Tanner’s ruling said: “This court is constitutionally forbidden from evaluating the religious convictions of either party…. For this court's decision to be motivated by a conviction that either party's religious belief is in the best interest of the children would implicate the First Amendment of the United States Constitution and the Religious Freedom Provision of the Ohio Constitution.”

Cert. Filed In Faith-Based "Teen Ranch" Case

SCOTUS blog reports that a petition for certiorari (full text) has been filed with the U.S. Supreme Court in Teen Ranch v. Udow, (cert. filed 9/13/2007). In the case, the U.S.6th Circuit Court of Appeals upheld Michigan's decision to cut off placement of abused, neglected and delinquent children with Teen Ranch, finding its program coerces religious participation by the youths by failing to give them a true private choice to opt out of religious activities.

Hebrew Curriculum Finally OK'd For Florida Charter School

Hollywood, Florida’s Broward School Board finally approved the Hebrew language curriculum of the Ben Gamla charter school, according to the Sept. 12 Miami Herald. Church-state issues have dogged the school’s attempt to become the first Hebrew-English dual language charter school in the nation. (See prior posting.) After raising questions about the school’s curriculum, the Board hired a consultant, religious studies professor Nathan Katz. Now Katz has reported back that “this new proposed curriculum is thoroughly within the acceptable boundaries for public education and in no way constitutes advocating or promoting religion.”

Presidential Greetings On Beginning of Ramadan

The Muslim holy month of Ramadan began Sept. 12. On that day, the White House released a Presidential Statement sending greetings to Muslims in the U.S. and around the world who are observing the month of fasting and prayer. The statement said in part: “America is a land of many faiths, and our society is enriched by our Muslim citizens. May the holy days of Ramadan remind us all to seek a culture of compassion and serve others in charity.”

Ohio Inspector General Reports On Governor's Faith-Based Office

In March, Ohio's new Democratic Governor Ted Strickland asked the state's Inspector General to investigate the administration of the Governor's Office of Faith Based and Community Initiatives (GOFBCI), and particularly its contract with We Care America (WCA) to administer grants. (See prior posting.) The Inspector General's Report was released on Sept. 12. It found no evidence that the selection of WCA was the result of any political pressure or improper influence. However it did conclude that GOFBCI should have done a better job of monitoring WCA's activities and of reviewing the invoices WCA submitted. An audit disclosed overcharges and improperly documented costs. Melissa Rogers blog has covered this story closely and has more on the release of the report.

India's Archeological Agency Creates Religious Stir In Supreme Court Affidavit

An affidavit filed last Wednesday by the Archaeological Survey of India (ASI) in a case pending before India’s Supreme Court has stirred up a religious controversy, according to reports by the Canadian Press, Reuters and the Times of India. At issue is a challenge to the government’s plans to dredge a shipping canal between India and Sri Lanka in order to reduce sailing time between India’s coasts by 30 hours. However, the channel goes through limestone shoals known as Adam’s Bridge or Ram’s Bridge that Hindus believe were built by the God King Rama.

Defending the project in the court challenge against it, ASI’s affidavit said that the shoals were the result of "several millennia of wave action and sedimentation" and "the issue cannot be viewed solely relying on the contents of mythological text." It added that there is no historical evidence to prove the "existence of the characters or occurrence of events" in Ramayana (the epic tale of Rama). Quickly, a leader of the Hindu BJP party charged that the language in the affidavit was "an insult to millions of Hindus all over the world."

By Saturday the government had agreed to withdraw the controversial parts of the ASI affidavit. Culture Minister Ambika Soni suspended two officials over the matter and offered her own resignation. Meanwhile BJP leader L.K. Advani said the affidavit amounts to blasphemy that is punishable under Sec. 295 of the Indian Penal Code as a defilement that insults the Hindu religion.

"Equal Access" For High School Groups Under Federal Law Interpreted

In ALIVE v. Farmington Public Schools, 2007 U.S. Dist. LEXIS 65326 (ED MI, Sept. 5, 2007), a Michigan federal district judge granted a permanent injunction to a Christian student group in a case that interprets what is meant by “equal access” under the federal Equal Access Act and under Michigan's similar law. The court found that ALIVE is entitled to all the privileges granted by Farmington High School to any other student group, including meeting under the same terms and conditions as other noncurriculum-related groups; advertising its meetings over the public address system, internal TV network and on bulletin boards; listings on the school’s website and in its yearbook; and use of photocopying machines. LifeSiteNews reported on the case on Sept. 12.

Survey Shows Some Surprising Views on Religion and the Constitution

A survey released today by the First Amendment Center shows some surprising views held by Americans on First Amendment religious issues. (Press release; full survey results). 65% either mildly agree or strongly agree that the nation's Founders intended the United States to be a Christian nation. 55% mildly agree or strongly agree that the Constitution establishes a Christian nation. Only 56% 56% believe that the freedom to worship as one chooses extends to all religious groups, regardless of how extreme. 50% mildly or strongly agree that a public school teacher should be able to use the Bible as a factual text in a history or social studies class. Only 56% believe that freedom of worship applies to all religious groups, regardless of how extreme their beliefs are, while 28% say freedom of worship was never meant to apply to religious groups that a majority of the people consider extreme or on the fringe.

Presidential Greetings On Rosh Hashanah That Begins Tonight

Tonight begins the Jewish holiday of Rosh Hashanah. Last week, the White House issued a Presidential Message sending greetings form the President and Mrs. Bush to those around the world celebrating the holiday. It said in part: "The enduring traditions of Rosh Hashanah remind us of the deep values of faith and family that strengthen our Nation and help guide us each day."

6th Circuit Rejects Challenge To Admission Of Religious Journal Entries Into Evidence

In Varner v. Stovall, (6th Cir., Sept. 11, 2007), the U.S. 6th Circuit Court of Appeals rejected the Establishment Clause and Free Exercise claims raised by Janniss Varner who had been convicted of assault with intent to commit murder after she hired someone to shoot her abusive boyfriend. Varner objected to the trial court's decision to admit into evidence her journal entries that included prayers and acknowledgements that she had tried to kill her boyfriend.

The court rejected Varner's argument that Michigan's clergy-penitent privilege law "improperly favors religions that encourage their members to seek guidance through intermediaries, such as a pastor or priest, over faiths that have no such tradition." It also held that the limitation of the privilege to communications addressed to a spiritual counselor did not restrict Varner's ability to practice her religion. The court held that "Michigan's privilege rules do not discriminate between denominations but distinguish between the methods of communication that the individual--any individual of any faith or no faith--chooses to pursue."

Belfast High Court Upholds Equality Law, But Not Harassment Provisions

In Application for Judicial Review by the Christian Institute, et. al., (No. Ireland High Ct, Sept. 11, 2007), Belfast's High Court has rejected a broad challenge to Northern Ireland's Equality Act (Sexual Orientation) Regulations, but did strike down the harassment provisions because of an absence of proper consultation before they were adopted. The court held that claims of interference with the right to manifest religious belief must be made in the context of particular applications of the rules, so that a court can balance justification for them with the interference involved. Finally the court rejected the argument that that the regulations treat evangelical Christians less favorably than others because they are subject to civil liability for expressing their religious beliefs about homosexuality. Reporting on the decision today, the London Telegraph says the decision will have widespread importance because the government has begun consultations on whether to include harassment prohibitions in the proposed Single Equality Bill that would apply to the rest of Britain.

Indian Judge Issues Opinion Questioning Country's Secular Principles

In India, controversial Allahabad High Court Justice S.N. Srivastava has provoked widespread criticism by including a sentence in a recent decision declaring: "it is the duty of every citizen of India under Article 51-a of the Constitution of India, irrespective of caste, creed or religion, to follow dharma [the right way of living] as propounded by the [Bhagvad] Gita." The judge's statement came in the context of a case in which a Varanasi priest challenged the sale of temple property by his brother. A broad spectrum of experts say that the statement is inconsistent with India's constitutional secularism. The controversial decision was handed down just days before the justice who authored it retired. Calcutta's Telegraph reported on the decision yesterday.

Canadian Court Delays Deportation So Man Can Complete Conversion

Canada's Federal Court last week issued a decision delaying implementation of a removal order against a Brazilian immigrant to Canada so that the deportee can complete his conversion from Christianity to Judaism while he is still in Canada. In Cichaczewski v. Minister of Citizenship & Immigration, (Fed. Ct., Sept. 4, 2007), the court cited Article 18 of the International Covenant on Civil and Political Rights that provides: "No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice." Today's National Post reports on the decision.

Chechen Leader Requires Women Civil Servants To Wear Islamic Headscarf

According to Reuters yesterday, Ramzan Kadyrov, president of Russia's Chechnya region, has decreed that women working for state institutions must wear the Muslim headscarf in order to retain their jobs. The order by the conservative Muslim leader appears to be contrary to Russian law that calls for separation of church and state, and equality of the sexes.

Settlement Reached By Episcopal Diocese and Syracuse Breakaway Congregation

On Aug. 28, a New York trial court approved a settlement in a lawsuit brought by the Episcopal Diocese of Central New York against the breakaway St. Andrews Episcopal Church in Syracuse. (See prior posting.) Under the settlement reported yesterday by Episcopal News Service, the diocese will be given title to the church property, but members of the breakaway church can use it rent-free for up to one year. More specifically:

The diocese will lease the building to the breakaway members at no charge for six months. The lease can be extended at their request on a month-to-month basis, for a maximum of six months if the court finds that the members have complied with all terms and conditions of the settlement, including making good-faith efforts to relocate. The breakaway members have to maintain the property and insure it, and they cannot remove any Episcopal symbols or signs.

At the end of the lease, the breakaway congregation will vacate the building and the former rector, Robert Hackendorf, will leave the rectory.

The members were also ordered to account for the parish's financial assets, which can later be transferred to any new church formed after the dissolution of St. Andrew's. The settlement says those assets amount to less than $50,000.

During the time that the building is being used by the members that changed their affiliation from ECUSA to the more conservative Anglican Mission in America, no Anglican bishop can visit or officiate there.

Intelligent Design Activist Loses California Challenge

In Caldwell v. Roseville Joint Union High School District, 2007 U.S. Dist. LEXIS 66318 (ED CA, Sept. 7, 2007), a California federal district court dismissed claims by intelligent design activist Larry Caldwell that he was unconstitutionally denied access to various forums to promote his "Quality Science Education" proposals. Caldwell alleged free speech, establishment clause, due process and equal protection violations because his proposals were not placed on the School Board's agenda, his complaints about the school district's biology textbook were rejected, and his proposals were not placed on the agenda of of the Curriculum Instruction Team in his daughter's and son's high school. In granting summary judgment to the school district, the court emphasized that "this case is not about whether a theory of intelligent design can or should be included in the science curriculum.... Rather, this case is about whether Larry Caldwell was denied access to speak in various fora or participate in certain processes because of his actual or perceived religious beliefs."

Bar Exam Taker Wants His Free Exercise Suit Dismissed

Law school graduate Stephen Dunn who challenged the February Massachusetts bar exam in federal court on Free Exercise grounds has now filed a motion asking the court to dismiss his lawsuit. (Full text of motion to dismiss.) Bay Windows reported yesterday on dthe most recent evelopments. Dunn's lawsuit (see prior posting) claimed that by asking him to answer an essay question on gay marriage, the bar examiners were calling on him to promote views that violate his religious beliefs. Dunn's motion to dismiss says that by excluding questions on gay marriage on the most recent bar exam, bar examiners have assured that future exam takers will not be forced to promote a "liberal ideology". However the state, in its response said:

Defendants wish to make clear that they have not agreed to limit the content of any future examination questions.… That Defendants elected not to ask the same questions ... merely reflects their standard practice of not repeating questions on successive bar examinations. Defendants maintain that the question to which Plaintiff objects was a legitimate question regarding the current state of law in the Commonwealth. The Board of Bar Examiners maintains its right to test bar applicants on that same subject matter in future examinations.

En Banc 9th Circuit Finds Juror's Bible Notes Did Not Impact Death Penalty Decision

In an en banc decision in Fields v. Brown, (9th Cir., Sept. 10, 2007), yesterday the U.S. 9th Circuit Court of Appeals in a 9-6 decision agreed with a 2005 decision of a 3-judge panel upholding the death sentence of Stevie Lamar Fields, who has been on death row since 1979. The majority held that the jury foreman's notes setting out Biblical arguments for and against the death penalty had no substantial effect on the jury's decision, so the court need not decide if the bringing of this extraneous material into the jury room amounted to juror misconduct. Two dissenting opinions were filed, each on behalf of three judges. Both strongly challenged the majority's statement that the Biblical quotations were merely "notions of general currency that
inform the moral judgment that capital-case jurors are called upon to make." The 99 pages of opinions involve other challenges to Fields sentence as well-- all of which were rejected. Today's Los Angeles Times reports on the decision.

American Legion Blasts 9th Circuit's Mojave Cross Decision

American Legion National Commander Marty Conatser has issued a strong statement criticizing the U.S. 9th Circuit Court of Appeals' recent decision in Buono v. Kempthorne. The 9th Circuit concluded that Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW did not eliminate an Establishment Clause violation. According to the Legion's press release, Conaster said:

This is one more prime example of wrong-headed political correctness and one more critical reason why the current Congress must pass the Public Expression of Religion Act.... Today it’s a memorial. Tomorrow, these same judges can order the removal of crosses on veterans gravestones, the dismissal of military chaplains and the closure of base chapels.

Roman Catholic Foundation Files New Suit Against Univeristy of Wisconsin

Last May, a lawsuit brought against the University of Wisconsin (UW) by the Roman Catholic Foundation (RCF) was settled. In the settlement, UW agreed to recognize RCF and recommend funding for it, while RCF agreed it would not seek University funding for events requiring the direct control of ordained clergy. (See prior posting.) Yesterday, RCF filed a new lawsuit against the University. (ADF press release.) The complaint (full text) in Roman Catholic Foundation, U-W Madison, Inc. v. Planton, (WD WI, filed 9/10/2007) alleges that the University has:

refused to fund any religious expression of RCF because Defendants believed that doing so gave state funds to "the Church." ... Defendant ... told RCF that the [settlement] Agreement was inapplicable.... UW-Madison officials ... stated that they will not fund any of RCF’s religious expression that involves "worship," "prayer," and/or "proselytizing...." Essentially, Defendants assumed a line-item veto power—in direct contradiction of the Agreement—over RCF’s previously approved budgets. Defendants have not applied this same level of scrutiny to other student organizations at UW-Madison.

By treating RCF differently than other similarly situated student organizations, and announcing that RCF cannot receive segregated fee funding for religiously expressive activities, Defendants have repudiated the Agreement, [and] violated RCF’s constitutional rights for a second time in a year....

Yesterday's Rhinelander Daily News reports additional details of the lawsuit.

Focus on Family Cleared By IRS of Political Endorsement Charges

The AP reported yesterday that James Dobson has been cleared of charges that he used resources of Focus on the Family to endorse Republican political candidates in 2004. Citizens for Responsibility and Ethics in Washington and the Citizens Project complained that Dobson's actions were inconsistent with Focus on the Family's non-profit tax status. The IRS, however, apparently agreed that Dobson was not speaking for the non-profit pro-family Christian group in making his endorsements.

China Appoints Bishop Supported By Vatcan

The government of China appears to have taken a step toward improving relations with the Vatican. BBC News reports that China's state-controlled Catholic Church ordained Paul Xiao Zeijiang as assistant bishop in Guizhou province on Sunday. The first ordination since a June letter from Pope Benedict XVI calling for closer relations, this appointee reportedly had approval from both the Vatican and supporters of the Pope in China. In the past, unilateral appointments by China led to the excommunication of two bishop seen by the Vatican as illegally appointed.

Canadian Politicians Criticize Deference To Muslim Women In Vote ID Rules

Canada's Prime Minister Stephen Harper and other Canadian politicians are criticizing the decision by Marc Mayrand, head of Elections Canada, to permit Muslim women to be identified at the polls in upcoming Quebec elections without removing their full-face veil. (See prior posting.) Maynard said the women would be asked to voluntarily remove their face covering, but they cannot be required to do so under current law. They have the alternative of taking an oath and being identified by someone else. Parliament members critical of Maynard say they will press for an amendment to require voters to show their face for identification purposes. Some Canadian Muslim groups say the controversy has been blown out of proportion and that the small number of women who wear the niqab are used to removing it for identification purposes. These developments were reported yesterday by Jurist and by the Prince George Citizen.

More On Prison Chapel Library Book Limitations

A New York Times article today offers new details about the federal Bureau of Prisons restrictions on titles that are permitted in prison chapel libraries. The limitations are the subject of a pending lawsuit. (See prior posting.) The Times discloses that the titles selected by the Bureau of Prisons for inclusion are apparently far from balanced. 80 of the 120 permitted Jewish titles are from the same Orthodox publishing house. Wheaton College Professor Timothy Larsen says that the Christian materials "show a bias toward evangelical popularism and Calvinism" and do not include materials from early church fathers, liberal theologians and major Protestant denominations.

Indian Governor Vetoes Anti-Conversion Bill

The Governor of the Indian state of Chhattisgarh has refused to consent to an anti-conversion bill passed last year by the state assembly. IANS reports today that the Chhattisgarh Religious Freedom (Amendment) Act, 2006, would have required individuals to obtain approval from a district magistrate 30 days in advance of converting to another religion. The BJP that supported the bill argued that Christian missionaries were bribing poor tribals and low caste Hindus into changing their faith.

San Diego Diocese Reaches Settlement With Abuse Victims

On Friday, a settlement was reached in the sexual abuse claims of 144 people against the Catholic Diocese of San Diego. The San Diego Union-Tribune yesterday reported that the settlement will total $198.1 million. It also includes an agreement on release of documents regarding abusive priests and employees, and records of how the Church dealt with them. The agreement was mediated by a federal magistrate. The Diocese is in contentious bankruptcy reorganization proceedings. (See prior posting.)

Court Modifies Judgment Against Postal Service Prohibiting Proselytizing

A Connecticut federal district court has granted a motion by the U.S. Postal Service to amend a declaratory judgment and injunction issued in April prohibiting contract postal units from posting displays that involve religious proselytizing. (See prior posting.) In Cooper v. United States Postal Service, 2007 U.S. Dist. LEXIS 65507 (D CT, Aug. 28, 2007), the court limited its ruling to the contract postal unit operated by Sincerely Yours, Inc. (SYI), eliminating broader language applying to all other contract postal units as well. It also modified its injunction to more specifically indicate the proselytizing activities of SYI that are to be prohibited.

Recent Articles Of Interest

From SSRN:

• Bernadette A. Meyler, The Limits of Group Rights: Religious Institutions and Religious Minorities in International Law, (Sept. 2007).

From Bepress:

• Asher Maoz, Religiously Oriented Universities in Israel, (Sept. 2007).


• Asher Maoz, Religious Freedom As A Basic Human Right – The Jewish Perspective, (Sept. 2007).


• Eduardo M. Peñalver, Is Public Reason Counterproductive?, (April 2007).

From SmartCILP:

• Haider Ala Hamoudi, Muhammad's Social Justice or Muslim Cant?: Langdellianism and the Failures of Islamic Finance, 40 Cornell International Law Journal 89-133 (2007).


• Paul J. Heald, Meeting of the Minds, part II: A Dark and Angry God Arises, 41 Georgia Law Review 849-865 (2007).

Maryland Town May Enact New Zoning Law In Response To Ahmadi Group

In Walkersville, Maryland, the town commission is considering a new zoning ordinance in response to a proposal by a group of Ahmadiyya Muslims to acquire 224 acres of farmland to use for the group's 3-day annual convention that would attract up to 10,000 people. The property would also be used for prayers and meetings by local members on weekends and occasionally for other activities. Chris Weddle, sponsor of the zoning amendment, said it is part of a larger plan to preserve agricultural and open space. If enacted, it would require town council approval to rezone the farmland. Yesterday's Boston Globe says that the Ahmadis have launched a public relations campaign to calm local fears about their plans. [corrected]

Church of England Raises Objections to Proposed Equality Bill

In Britain last week, the Church of England filed formal comments opposing a proposed Single Equality Bill that would harmonize and simplify a number of existing anti-discrimination laws. (See prior posting.) In its submission during the government's consultation on the bill, the Archbishops' Council complained that the Church could be forced to marry people who have undergone gender reassignment, and that faith schools might be required to "promote" same-sex relationships. PinkNews.uk reports on these developments.

Another Study Ordered On Prosecution of FLDS In Canada

Despite a recommendation last August by independent prosecutor Richard Peck that Canadian prosecutors not file charges against the polygamous FLDS community in Bountiful, BC, another review has been ordered by British Columbia's Attorney General. This time lawyer Leonard Doust will examine whether there is sufficient evidence to prosecute for sexual exploitation offenses. Peck had recommended against such prosecutions and suggested instead that the BC government ask the courts to rule on advance on the constitutionality of Canada's ban on polygamy. BC Attorney General Wally Oppal wants Doust to take a more aggressive approach to possible prosecution, according to Saturday's Vancouver Sun.

2nd Religious Freedom Moot Court Competition Announced

George Washington Univeristy Law School has announced that its Second Annual Religious Freedom Moot Court Competition will be held Feb. 22-23, 2008. Registration deadline for law school teams is Oct. 12, 2007.

Federal Court Approves Jesus Portrait In Larger Display In Slidell Courthouse

The New Orleans Times-Picayune reports that a Louisiana federal district court on Friday refused to order a picture of Jesus removed from the lobby of the Slidell (LA) City Court now that the pictures of 15 other people who were important in the development of legal history have been added.. A copy of the U.S. Constitution has also been hung in the center of the display. (See prior posting.) U.S. District Judge Ivan Lemelle said he would have ordered the picture removed if it the additional portraits had not been added. A challenge to the portrait of Jesus which has been in the courthouse for many years was filed by the ACLU. Apparently the former judge who purchased the portrait did not realize that it had religious significance, despite the halo around the head of the portrait's subject. Retired Judge James R. Strain Jr. said he thought it was merely a picture of a lawgiver.

Town Passes Permit Law In Reaction To Street Preachers

Last Tuesday, Walnut Cove, North Carolina’s town council enacted a new ordinance requiring a permit for parades and public assemblies on town streets, sidewalks or public property. (Text of ordinance as proposed). Today’s Winston-Salem Journal reports that the ordinance is a response to members of the Baux Mountain Baptist Church who have been preaching on city streets every Saturday for over four months. Reporting on the proposal last month, CBN News said Council is concerned about traffic, church members taking up parking spaces and the blocking business entrances. Church members say the new rules, which are scheduled to take effect in October, are unconstitutional.

No Immunity For Parole Officer Sending Offender To Religious 12-Step Program

In Inouye v. Kemna, (9th Cir., Sept. 7, 2007), the U.S. 9th Circuit Court of Appeals reversed the decision of a Hawaii federal district court and denied qualified immunity to a parole officer being sued for Establishment Clause violations. The Court of Appeals held that by 2001 it was clearly established that coerced placement of a convicted defendant in a religious-based drug or alcohol treatment program was unconstitutional. Today’s San Francisco Chronicle reported on the case that was brougth by a Buddhist who was required to attend the Salvation Army's treatment program, including Narcotics Anonymous. [Thanks to Robert H. Thomas for the lead.]

Catholic Retirement Community Entitled To Colorado Tax Exemption

In Catholic Health Initiatives Colorado v. City of Pueblo, (CO Ct. App., Sept. 6, 2007), a Colorado appellate court held that a continuing care retirement community operated by a Catholic religious organization qualifies for the sales and use tax exemption that is granted to charitable and religious organizations. Disagreeing with the trial court, the Court of Appeals concluded that the operation of the retirement community is a religious activity. While agreeing that an exemption is available, the Court disagreed with the argument made by Catholic Health that government officials cannot constitutionally examine the activities of a religious organization to determine which of its activities are or are not religious. The Court held that “a certain amount of inquiry into a religious organization’s activities is appropriate”. The organization’s motivation in conducting a particular activity is relevant, but other factors must also be examined.

Interim Rulings In Russian Orthodox Church Dispute In New Jersey

A New Jersey trial court judge made several rulings Thursday in a dispute between a Russian Orthodox diocese in New Jersey and the Sviato-Pokrovskiy Russian Orthodox Church in Buena Vista (NJ). Members of the parish oppose the reconciliation that has taken place between the Russian Orthodox Church Outside Russia and the Moscow Patriarchate in Russia. (See prior posting.) On Friday, Newsday reported that Superior Court Judge William C. Todd prohibited the parish from selling off its church building or land without permission of the diocese. However, Judge Todd refused to rule that parish members had no interest in the property. He also refused to require that the property be used only in accordance with the canons, rules and customs of the Orthodox Church Outside Russia. All of this leaves the ultimate dispute undecided,

Alaska Supreme Court Allows Churches To Intervene In Tax Challenge

In Anchorage Baptist Temple v. Coonrod, (AK Sup. Ct., Aug. 31, 2007), the Alaska Supreme Court permitted three churches to intervene in a citizens’ lawsuit that challenged the constitutionality of a state property tax exemption. The challenged law exempts teachers' residences owned by religious organizations. The lower courts had permitted the churches only to appear as amicus curiae. The Supreme Court reversed finding that the “churches have significant financial and potentially unrepresented constitutional interests in the litigation” and because there is at least an appearance of adversity between them and the state

Quebec Will Not Require Muslim Women Voters To Uncover Their Face

Jurist reported yesterday that in the upcoming elections in Quebec, Muslim women who have their faces covered with a niqab or burqa will still be able to vote so long as they can prove their identity. This is a change in policy after Muslim groups criticized election officials last March for requiring women to show their faces in order to vote.

9th Circuit: Transfer of Cross To VFW Did Not Cure Establishment Clause Violation

Congress' attempt to avoid Establishment Clause problems by transferring the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW has failed. In Buono v. Kempthorne, (9th Cir., Sept. 6, 2007), the U.S. 9th Circuit Court of Appeals first rejected the government's contention that the case was not ripe. Moving to the merits, the court focused on the government's ongoing oversight and maintenance of the property, the government's reversionary interest in the property, the unusual method of authorizing the land exchange with the VFW and the government's continuing efforts to keep the cross on the property. The court concluded that the land transfer would violate the district court's earlier injunction against display of the cross on government property. It concluded: "carving out a tiny parcel of property in the midst of this vast Preserve—like a donut hole with the cross atop it—will do nothing to minimize the impermissible governmental endorsement." Reuters yesterday reported on the decision. (See prior related posting.) [Thanks to Inverse Condemnation blog for the lead.]

Huckabee Explains Views On Church-State Issues

Yesterday's New York Jewish Week published an article detailing Republican presidential hopeful Mike Huckabee's views on church-state issues. The candidate-- a Baptist minister and former Arkansas governor-- generally opposes school voucher programs. As a strong supporter of public schools, he says that vouchers are often small so that they only empower affluent parents. However, he said, even if full tuition voucher were offered,: "Most of the people I know who have run religious schools do not want government vouchers for their religious schools, because they know that with government money comes control. The very reason they established their schools is to have an independence from that government control."

The paper also questioned Huckabee on a prior statement he made calling for taking the nation back for Christ. Responding to concerns Jews might have with the concept, Huckabee explained: "If you understand what that means, it means that if that were to happen, this is the Jesus who said 'love your neighbor as you love yourself.' What it means is that you wouldn't have children going hungry at night; you wouldn't have women having the daylights beat out of them by abusive, alcoholic husbands..... It doesn't mean everybody would go to the same church as I do and pay their tithe; it does mean there would be a civility, a stand against corruption."