State Highway Signs Pointing To Creation Museum Questioned

In Kentucky, as in other states, a tourist attraction that draws enough visitors can-- for a price-- have highway signs put up by the state indicating the highway exits that leads to the attraction. Cincinnati Post columnist Kevin Eigelbach yesterday questioned the propriety of Kentucky's erecting four of these signs directing visitors to Boone County, Kentucky's Creation Museum. Rules require that a committee of transportation and commerce officials consider applications for signs. They are available only for cultural, historical, recreational, agricultural, educational or entertainment sites. Barry Lynn, executive director of Americans United for Separation of Church and State, said it is a "close call" whether the state's support of the museum violates the Constitution's Establishment Clause. At any rate he thought it was bad policy, saying: "It just seems foolish for a state to promote a kind of monument to ignorance anyway, and this certainly does that."

Spain's Catholic Church May Lose Funds Because of Bill Condemning Franco Era

Spain's ruling Socialist Party finds itself in an odd conflict with the Roman Catholic Church as the country's legislature moves to make amends for atrocities committed two generations ago. The Associated Press reported yesterday that a pending bill that will condemn the 40-year rule of dictator Francisco Franco also calls for the removal of all publicly-displayed symbols that honor the Franco regime. Government aid and subsidies will be denied any organization that fails to follow this mandate. Some Catholic churches in Spain display plaques with names of pro-Franco fighters who died in the 1936-39 Spanish Civil War, paying tribute to them as men who have "fallen for God and for Spain". Under the new legislation, if Churches do not remove these plaques, they will lose government aid. Spain's government pays the salaries of religion teachers in state subsidized schools, and also permits Spaniards to earmark a small portion of their income tax for the Church.

Innovative Settlement Reached In Pharmacists' Challenge To IL Rules

An innovative settlement has been reached in a suit by pharmacists challenging Illinois' rules requiring all pharmacies to fill prescriptions for Plan B emergency contraceptives. (See prior posting.) Under the agreement filed in federal district court last week, the state would change its rules so that pharmacies could have the prescription approved by phone or fax by an off-site pharmacist. The drug would then be delivered to the customer by the pharmacy owner or another employee instead of by the on-site pharmacist who has moral or religious objections to dispensing it. Yesterday's Chicago Tribune says that the settlement gives the state until March 3 to amend its rules. [Thanks to Blog from the Capital for the lead.]

3rd Circuit: Federal Employee Cannot Use RFRA For Employment Discrimination

In Francis v. Mineta, (3rd Cir., Oct. 10, 2007), the U.S. 3rd Circuit Court of Appeals held that Title VII of the 1964 Civil Rights Act is the exclusive route that a federal employee may use to assert a claim of religious discrimination in employment. The court held that a Transportation Security Administration screener fired for wearing dreadlocks in violation of the TSA's grooming policy cannot use the Religious Freedom Restoration Act as a way of avoiding Title VII's requirement that administrative remedies be exhausted before a lawsuit is filed.

Detroit Student Gets TRO Permitting Him To Attend Class With Long Hair

In Wayne County, Michigan, a state court has issued a temporary restraining order requiring Detroit's Old Redford Academy, a college-preparatory charter high school, to temporarily readmit 14-year old Claudius Benson II who refuses to cut his hair as required by the school's dress code. Today's Detroit Free Press reports that the high schooler has not had his hair cut for ten years because of his mother's Old Testament religious beliefs. Circuit Judge Kathleen Macdonald held that the school should permit Benson to attend classes while the court is considering his challenge to the school's dress code.

The lawsuit, filed by the Michigan Civil Liberties Union, argues that under the state Constitution and Michigan's civil rights law the school is required to grant Benson a religious exemption from the school's grooming rules. (Full text of complaint.) Fox News gives additional background on the case. Originally the complaint also contained federal law claims, but after the school removed the case to federal court, the ACLU withdrew the lawsuit and refiled it in state court with only state law allegations. (Oct. 5 Detroit Free Press.)

New Hampshire Court Refuses To Order Co-Use of Presbyterian Church By Factions

Last Friday, a Rockingham County, New Hampshire, Superior Court Judge refused to issue an injunction ordering co-use of Londonderry's Presbyterian Church by two feuding groups. Today's Manchester Union-Leader reports that last month, 200 members of the church voted to disaffiliate from the Presbyterian Church USA and join the more conservative New Wineskins association of Presbyterian churches. Following the court's decision, the New Wineskins changed all the locks on the church, preventing the "continuing congregation," the group that wants to stay affiliated with the national Presbyterian Church, from using the building for services. So last Sunday long-time pastor Dr. John Mokkosian held service under a tree on the front lawn.

Two To Be Sentenced For Obtaining False Religious Licenses For Cuba Travel

In Miami, Florida later this week and next two men will be sentenced after being convicted in a scheme in which they fraudulently obtained religious travel licenses for travel to Cuba. Today's Miami Herald reports that Victor Vazquez and David Margolis created phony churches to apply for the licenses. They then sold the right to travel under these permits to some 6,500 people. One of the few ways for Americans to legally travel to Cuba is under this type of religious travel permit that is issued by the U.S. Treasury Department's Office of Foreign Assets Control . 31 CFR Sec. 515.566 sets out the rules for obtaining licenses for religious activities in Cuba.

President To Attend Presentation of Congressional Medal To Dalai Lama

Next Wednesday, members of Congress will hold a Capitol Hill ceremony at which House Speaker Nancy Pelosi will award the Dalai Lama the Congressional Gold Medal that was authorized last year. AFP reports that President George Bush and First Lady Laura Bush will attend the ceremony, even though this will anger the government of China that considers the award an interference in China's internal affairs. It views the Dalia Lama as a political exile who wants independence for Tibet. This will be the first time that a sitting U.S. President has appeared at a public event with the 72-year old Buddhist spiritual leader.

Federal Faith-Based Grants Announced

The Department of Health and Human Services has awarded $57.8 million in grants to 387 faith-based and community organizations (list of grantees), according to a report published Monday by the Roundtable on Religion and Social Welfare Policy. The grants were awarded from the Compassion Capital Fund, an important part of President Bush's Faith Based and Community Initiative. This year's awards included 37 grants to Demonstration Program intermediary organizations; 131 organizations received grants under the Communities Empowering Youth program; the remaining grants were under the Targeted Capacity Building Program and went for programs that focus on homeless persons, rural communities, at-risk youth and strengthening marriages. [Thanks to Blog from the Capital for the lead.]

Tunisian Court Strikes Down Ban on Wearing Muslim Veil

An Administrative Court judge in Tunisia has held that Circular No. 102, issued in 1986, that prohibits Muslim women from wearing the veil, is unconstitutional. Magharebia yesterday reported that the ruling issued last week calls on the Ministry of Education to reinstate teacher Saiida Adali who had been suspended for wearing a veil to work. The court also called for the Ministry to pay Adali damages. The ban on the veil was originally adopted twenty years ago to prevent the spread of radical Islam in the wake of the Iranian Revolution. The Administrative Court, however, ruled that the ban "interferes in personal freedoms, since such dress expresses distinctively cultural, religious and intellectual belonging and reflects personal inclination."

Tensions In Europe Over Muslim Presence Examined

The Organization for Security and Co-operation in Europe (OSCE) is sponsoring a conference in Cordoba, Spain on Intolerance and Discrimination Against Muslims. SwissInfo today interviewed Switzerland's Deputy State Secretary of Foreign Affairs, Anton Thalmann, who spoke at the conference. Thalmann said that religious intolerance affects fundamental Swiss values. Meanwhile today's Guardian reports on growing tensions in Switzerland and elsewhere in Europe over the construction of mosques, minarets and Islamic culture centers, as some Europeans attempt to keep their cities culturally Christian.

Applicability of NY Human Rights Laws To Students Being Challenged

The Ithaca City School District is challenging the applicability of New York's Human Rights Law to public school students. The Ithaca Journal reports on impassioned testimony at yesterday's school board meeting. Parents, students and community members are asking the board to drop its challenge that is pending in an appeal of a case in which the district is charged with failing to protect a student from racial harassment. The Human Rights Law prohibits religious discrimination, as well as discrimination on the basis of race, gender, sexual orientation, disability, genetic characteristics, or military or marital status. The school district is arguing that the law's coverage does not extend to public school students. It claims that the public hearing procedures in discrimination cases heard by the New York Division of Human Rights forces schools to violate federal student privacy laws in order to mount a defense. Civil rights groups are planning to ask the New York legislature to amend the law to make it clear that it does apply to public school students.

Group Claims Sex Ed Curriculum Will Lead To Religious Discrimination

Conservative groups are raising a new kind of religious objection to Montgomery County, Maryland's sexual education curriculum. A group called Citizens for Responsible Curriculum argues that the new curriculum will lead to intolerance against those who oppose homosexuality on religious grounds. Today's Examiner reports that Maryland Circuit Court Judge William Rowan III yesterday refused to enjoin the schools from implementing the curriculum while challenges to it are pending. An appeal of the Maryland State Board of Education's approval of the curriculum will be heard by the court in January.

Conscientious Objector's Trial Delayed As Amnesty International Expresses Concern

Army First Lieutenant Ehren Watada's court martial on charges that he refused to deploy with his unit to Iraq in June 2006 was scheduled to begin yesterday. However, a federal judge in Washington state ordered the Army to delay the trial. Honolulu's KNHL reports that Watada's lawyer says the court martial would amount to double jeopardy because an earlier court martial ended in a mistrial. Watada is a conscientious objector-- not to all wars, but to the war in Iraq. Because he does not object to all wars, U.S. law would not grant him CO status. Last week Amensty International expressed serious concern over Watada's fate. It said: "The right to refuse to perform military service for reasons of conscience, thought or religion is protected under international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights (ICCPR), which the US has ratified."

Michigan Town Will Vote On Creche Display

The Nov. 6 ballot in Berkley, Michigan will include a proposed Charter Amendment that would require the city to display a Nativity scene on city hall property every year from the Monday following Thanksgiving until January 6. (See prior related posting.) The ballot measure calls for the display to also include gift packages, colored lights, a "Seasons Greetings" sign, and a Santa Claus figure. Last year, after the ACLU raised objections to the city's traditional creche display, city council ultimately decided to turn it over to local churches to display on a rotating basis. (See prior posting.) This led to the formation of Berkley Citizens Vote YES to Christmas Holiday that is backing the ballot measure. Today's Berkley Daily Tribune reports that Berkley Mayor Marilyn Stephen and a majority of City Council members have signed a letter opposing the ballot proposal.

California Councilman Insists On Arguing Against Church-State Separation

Today's San Diego Union-Tribune reports on efforts of El Cajon (CA) City Council member Bob McClellan to use Council meetings to argue for more religion in government. Last month, McClellan, an evangelical Christian, began placing an item on Council's agenda labelled "Bob's Constitutional Moments". He used the time to quote from historical documents to argue that the nation's founders did not favor separation of church and state. Last week, however, City Attorney Morgan Foley sent a memo to council recommending that the agenda item be dropped in order to avoid embroiling the city in protracted and expensive church-state litigation. So at last night's meeting, McClellan instead spoke at the end of the public comment period of the meeting. However he ignored the city attorney's recommendation that he "be required to leave his seat on the dais and stand at the podium in order to send the clear message that his comments express opinions of his own and not necessarily those of the entire City Council, or the City of El Cajon."

European Human Rights Court Says Turkey's School Curriculum Violates ECHR

Yesterday in Case of Hasan & Eylem Zengin v. Turkey, (ECHR, Oct. 9, 2007), the European Court of Human Rights held that compulsory courses on religious culture and ethics in Turkish primary and secondary schools are taught in a way that violates the European Convention on Human Rights. Protocol No. 1, Art. 2 of the ECHR provides:

In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.

The suit was brought by Hasan Zengin and his daughter Eylem, members of the Alevi faith, after Turkish authorities refused to exempt Eylem from the required religion and culture classes. Today's Zaman traces the background of the case. The ECHR held that the courses do not meet the criteria of objectivity and pluralism, and fail to respect the philosophical convictions of Hasan Zengin. The Court also observed that the exemption procedure does not provide sufficient protection to parents who believe the course is likely to create a conflict of allegiance in their children between the school and their own values.

UPDATE: On Thursday, Turkey's ruling Justice and Development Party agreed to implement the court's ruling by allowing students to opt out of existing courses on religion that emphasize Islam. However, those who do will be required to take "universal religious knowledge" courses in which all religions are covered equally. (Today's Zaman.)

Ohio House Speaker Ends Advance Submission of Invocations

Last May, the Clerk of the Ohio House of Representatives sent a memo to all House members urging respect for the then-House policy on invocations by guest ministers. Prayers were to be non-denominational, non-sectarian and non-proselytizing, and were to be submitted 72 hours in advance. (See prior posting.) Now an Alliance Defense Fund release reports that Ohio House Speaker Jon Husted has changed that policy. Husted sent a memo last month to the House Clerk stating: "Throughout the past few months I reflected and prayed upon an issue of great importance ... the issue is that of protecting prayer. After thoughtful deliberation, including the consideration of hiring a House chaplain, I have determined that our current guest minister program is working quite well.... [W]hile the Ohio House ... is under my leadership, we will not censor the content of prayers given prior to a House session. Please implement this policy immediately."

Suit Challenges Denial of High School Credit For Religious Community Service

Liberty Counsel announced yesterday that it has filed suit against the Long Beach (CA) Unified School District, challenging its Community Service Learning requirement rules as discriminatory. All district high school students must complete at least 40 hours of community service in order to graduate. The lawsuit was filed on behalf of 15-year old Chris Rand who was denied credit for 80 hours of work with children he performed at the Long Beach Alliance Church. The lawsuit claims that no credit will be granted for service to religious communities. However, the current Student Service Learning Manual grants credit for religiously sponsored social service activities. It denies credit for teaching about religion, helping with religious services (including babysitting) recruiting members, or providing merely office or maintenance work. The Long Beach Press-Telegram quotes a school district spokesman who said that work at churches counts as long as it is not designed "to enhance a religion". That restriction, he said, results from church-state separation concerns.

Quebec Advisory Council Urges Ban On Religious Symbols Worn By Civil Servants

In Canada, Quebec's Council on the Status of Women is urging the province to ban public employees from wearing visible religious symbols on the job, according to today's National Post. The 20-member government advisory board says it is attempting to protect the religious neutrality of government institutions. The proposed ban would apply to "ostentatious" religious symbols, such as large Christian crosses, Sikh turbans and Jewish yarmulkes. Particularly at issue, however, are the hijab (headscarf) and niqab (full face veil) worn by some Muslim women. Focusing on school teachers, the Council said : "The niqab sends a message of the submission of a woman, which should not be conveyed to young children as part of a secular education, which is required to promote equality between men and women." In 1995, according to today's National Post, the Council urged schools to permit students to wear the hijab. The new recommendation that would apply to teachers and other public servants is similar to a ban enforced in France.

Gated Community Bars Religious Statues In Garden Areas

Yesterday's Newsday reports that a homeowners' association board in a gated community in Medford, New York has created controversy by banning religious statues, bird feeders and birdbaths from all common areas, including gardens outside individual condominiums. This has forced Gloria Gamarano to remove a statue of the Virgin Mary from her garden. Another resident was told to remove from her garden a decorative statute of St. Francis of Assisi that contained a small birdbath. The Catholic League for Religious and Civil Rights has criticized the rule as discriminatory against people of faith. Arlene Crandall, president of the homeowners' board, says the goal was to eliminate from commons areas statues that appeal only to one segment of the community's population.

HHS Anti-Terrorism Grants to Non-Profits Went Mainly To Jewish Institutions

At the end of September, the U.S. Department of Homeland Security announced the award of 308 grants totalling $24 million to non-profit institutions to help potential terrorism targets harden their defenses, improve screening and train personnel in terrorism preparedness. Last Thursday Haaretz reported that 76% of the grants went to Jewish institutions. For example, the Chabad Israeli Center of Greater Washington received funds to purchase security cameras, anti-burglar lights, intercoms and concrete barriers to stop cars. According to the AP, other grantees included American Muslims for Emergency and Relief in Miami, the American Red Cross in Washington, D.C., St. Michael's Medical Center in Newark, N.J., and Harper-Hutzel Hospital in Detroit.

Recent Prisoner Free Exercise Cases

In Norwood v. Strada, (3d Cir., Sept. 25, 2007), the U.S. 3rd Circuit Court of Appeals affirmed a lower court's dismissal of a claim by a Muslim held in a federal prison that his religious freedom rights protected by RFRA were violated when he was denied a religiously acceptable Halal diet for 3 days during an emergency prison lock-down.

In Keith v. Hawk-Sawyer, 2007 U.S. Dist. LEXIS 72597 (SD IL, Sept. 28, 2007), an Illinois federal district court dismissed a prisoner's attempt to get the federal Bureau of Prisons to recognize the Christian Identity religion. It found no case or controversy as to some of the defendants, and held the case was moot as to others.

In Williams v. Miller, 2007 U.S. Dist. LEXIS 72552 (SD IL, Sept. 28, 2007), an Illinois federal district court held that whether a prisoner was sincere in his attempt to have his religious affiliation changed from Catholic to Jewish in prison records poses factual issues that cannot be decided in a motion for summary judgment. Only by getting his religious designation changed could plaintiff obtain kosher meals and Jewish religious texts and accessories.

In Jones v. Shabazz, 2007 U.S. Dist. LEXIS 72640 (SD TX, Sept. 28, 2007), a Texas federal district court rejected almost all of the many claims raised by a Nation of Islam prisoner who complained that Texas prison chaplains and administrative officials denied him and other NOI inmates access to religious videotapes, DVDs, books, newspapers, and prayer oil; that they refused to accommodate religious practices as to diet, charity and modesty, and the use of plaintiff's religious name; and that they discriminated against NOI inmates in hiring of chaplains and furnishing religious services. Only the prayer oil claim and a claim regarding a requirement that plaintiff stand nude after strip searches and showers survived immediate dismissal.

In Hunt v. Miller, 2007 U.S. Dist. LEXIS 73907 (ND IN, Sept. 28, 2007), an Indiana federal district court held that while "the Constitution allows jails ... to employ chaplains to provide religious services, ... the First Amendment's free exercise clause does not require small jails to hire chaplains or take other affirmative steps to assist prisoners in practicing their religion."

In Toler v. Leopold, 2007 U.S. Dist. LEXIS 73232 (ED MO, Oct. 1, 2007), a Missouri federal district court dismissed a RLUIPA claim against the Missouri Department of Corrections, finding that RLUIPA does not waive a state's 11th Amendment immunity from damage suits.

Malaysia Issues Religious Guidelines For Muslim Astronaut's Flight This Week

If all goes as planned, on Wednesday Russia will launch a Soyuz spacecraft which will fly to the International Space Station. On board will be Malaysia's first astronaut-- and only the second Muslim to fly in space. Sheikh Muszaphar Shukor will be accompanied by Russian cosmonaut Yury Malenchenko and American Peggy Whitson. (AFP). Muszaphar's flight has attracted particular attention because it will take place during Ramadan, and Muszaphar says he wants to carry out as many of his religious obligations as possible. So Malaysia's Islamic Development Department has come up with a book, titled Guidelines for Performing Islamic Rites at the International Space Station. (The Star.) An article published in Wired last month outlines some of the challenges faced in adapting earthbound rituals in space. For example, how does an astronaut face Mecca while praying? Many other challenges are also presented in adapting prayer rituals to outer space. The Guidelines (.doc file) set out various adaptations that an astronaut may follow. For example, prayer times are to be based on a 24-hour period and determined in accordance with the time zone at the port from which the launch takes place.

Freemasonry Is "Religion" Under RLUIPA, But Masonic Temple Loses RLUIPA Claim

In Scottish Rite Cathedral Association of Los Angeles v. City of Los Angeles, (CA Ct. App., Oct. 3, 2007), a California court of appeals rejected a RLUIPA challenge by the Los Angeles Scottish Rite Cathedral Association to the revocation of its certificate of occupancy for its Masonic Temple. The appellate court rejected the trial court's holding that Freemasonry is not a religion. The appellate court found "no principled way to distinguish the earnest pursuit of these [Masonic] principles ... from more widely acknowledged modes of religious exercise." However the court held that the Masonic Temple, which was now largely being rented out for commercial as well as non-profit events, was not protected under RLUIPA. It concluded: "a burden on a commercial enterprise used to fund a religious organization does not constitute a substantial burden on 'religious exercise' within the meaning of RLUIPA."

RFRA Precludes Applying ADEA To Forced Retirement of Clergy

A New York federal district court, deciding a case on remand from the 2nd Circuit, has held that the Religious Freedom Restoration Act precludes applying the Age Discrimination in Employment Act to forced retirement of United Methodist clergy at age 70. The 2nd Circuit Court of Appeals had held that RFRA, rather than the "ministerial exception" doctrine, governs in applying the ADEA. (See prior posting.) In Hankins v. New York Annual Conference of the United Methodist Church, 2007 U.S. Dist. LEXIS 73724 (ED NY, Sept. 28, 2007), the district court found "that application of the ADEA to Defendants would place a substantial burden on their right to chose their own clergy and that the government does not possess a compelling interest in prohibiting age discrimination in the employment thereof. Thus, even if the ministerial exception is not applicable in this manner, RFRA's strict scrutiny standard compels an identical result."

Fired Profs Sue Oral Roberts University Claiming Retaliation

Three former professors have filed a lawsuit alleging that they were wrongfully dismissed as faculty at Oral Roberts University after they reported the University's use of resources in a candidate's political race for mayor in Tulsa, Oklahoma. Political involvement would be inconsistent with the school's non-profit tax status. The professors also turned over to the Board of Regents a report charging that University President Richard Roberts had engaged in other improper use of University funds and personnel. CBN News reported yesterday:

Richard Roberts is accused of illegal involvement in a local political campaign and lavish spending at donors' expense, including numerous home remodeling projects, use of the university jet for his daughter's senior trip to the Bahamas, and a red Mercedes convertible and a Lexus SUV for his wife, Lindsay.

She is accused of dropping tens of thousands of dollars on clothes, awarding nonacademic scholarships to friends of her children and sending scores of text messages on university-issued cell phones to people described in the lawsuit as "underage males."

At a chapel service this week on the 5,300-student campus known for its 60-foot-tall bronze sculpture of praying hands, Roberts said God told him: "We live in a litigious society. Anyone can get mad and file a lawsuit against another person whether they have a legitimate case or not. This lawsuit ... is about intimidation, blackmail and extortion."

Oral Roberts' website describes the University as "a charismatic university, founded in the fires of evangelism and upon the unchanging precepts of the Bible." ORU's board of Regents is investigating the charges.

Street Preacher's Conviction For Trespass On School Grounds Upheld

In State v. Carr, (OR Ct. App., Oct. 3, 2007), the Oregon Court of Appeals affirmed the criminal trespass conviction of street preacher Michael John Carr who insisted on preaching to Hillsboro, Oregon middle school students as they arrived at school and disembarked from school their buses. Carr wore a sandwich board with religious content and told students that that he had free passes to heaven for them. The court rejected Carr's claim that his right to freedom of speech and free exercise of religion prevented the school's principal from restricting his speech, at least when he was on school grounds as opposed to the public sidewalk in front of the school.

Muslim Clothing Traditions Continue To Be Controversial In Europe

Issues of Muslim dress continue to raise controversy in Europe. Muslim Weekly (Oct. 5) reported that Italy's Interior Minister Giuliano Amato recently rejected calls to ban the Muslim veil in public places. He says, that if a nun can wear her habit, a Muslim woman should have similar rights. However Amato is opposed to wearing of the burka.

Meanwhile, according to AFP yesterday, in Spain the temporary expulsion from school of a 9-year old Moroccan girl who insists on wearing a hijab (headscarf) to class has touched off a national debate on whether Muslim headscarves should be banned in public schools.

Recent Scholarly Articles of Interest

From SSRN:

• Robert W. McGee & Galina G. Preobragenskaya, The Ethics of Tax Evasion: An Empirical Study of Opinion in Kazakhstan, (October 2007).
  
• Hany Besada, Egypt's Constitutional Test: Averting the March Toward Islamic Fundamentalism, (CIGI Working Paper No. 28, August 2007).
  
• Edward J. Eberle, German Religious Freedoms: The Movement Toward Protection of Minorities, (Oregon Review of International Law, Forthcoming).
  
• Ian C. Bartrum, The Origins of Secular Public Education: The New York School Controversy, 1840-1842, (NYU Journal of Law & Liberty, Forthcoming).
  
• David A. Brennen, The Charitable Tax Exemption is About Much More than Efficiency, (2007).
  
• John Bernard Quigley, The International Court of Justice as a Forum for Genocide Cases, (Ohio State Public Law Working Paper No. 102, September 2007).

From SmartCILP and elsewhere:

• Russell Powell, Catharine MacKinnon May Not Be Enough: Legal Change and Religion in Catholic and Sunni Jurisprudence, 8 Georgetown Journal of Gender & Law 1-41 (2007).
  
• Roger Severino, "Or for Poorer?" How Same-Sex Marriage Threatens Religious Liberty, (Harvard Journal of Law & Public Policy, Vol. 30, pp. 939-82, 2007).

Louisiana's Unrestricted Funds To 2 Churches Violates Establishment Clause

In American Civil Liberties Union Foundation of Louisiana v. Blanco, (ED LA, Oct. 5, 2007), a Louisiana federal district court issued a preliminary injunction to prevent the state from disbursing funds that were appropriated in the state budget bill to two churches without any legislative indication of the purpose for which the funds were being granted. The court said: "The challenged appropriations in this case fall within the core proscription of the Establishment Clause." The court rejected the state's argument that the appropriations were saved from invalidity because an Executive Order issued by the Governor required recipients of earmarked funds to complete a cooperative endeavor agreement describing the public purpose for which the funds will be used. A release by the ACLU praised Judge Vance's decision. (See prior related posting.)

Indonesia's Constitutional Court Upholds Limits On Polygamy

According to Reuters, last Wednesday Indonesia's Constitutional Court upheld the an Indonesian law that limits polygamy to cases in which a first wife is childless, or terminally ill or unable to fulfill her sexual obligations and where that wife gives her consent. (See prior posting.) The court held that the law is consistent with both the country's Constitution and the tenets of Islam (that allows multiple marriages only if all wives are treated fairly).

State Court Refuses To Halt Vote On Pastor

In Nashville, Tennessee today, members of the large Two Rivers Baptist Church will vote during services whether to retain their senior pastor, the Rev. Jerry Sutton. A dissident faction in the church says that Sutton misspent church money on trips and for his daughter's wedding reception. The vote takes place after a Nashville state court judge refused to intervene to stop it, holding that a civil court cannot become involved in determining who should be a church's pastor. According to yesterday's Tennessean, Davidson County Chancellor Claudia Bonnyman agreed that under the state's non-profit corporation law, critics of the pastor were entitled to obtain a list of church members, but the judge refused to postpone the vote. Critics claim that Sutton is trying to obtain a favorable vote before they get access to church financial records in a pending lawsuit. The court also refused to order the church to stop removing Sutton's opponents from church committees.

UPDATE: Town Hall reports that members of Two Rivers Baptist Church voted 1101- 286 in favor of Jerry Sutton's remaining as the church's pastor.

UN Holds Conference On Interfaith Understanding

On Oct. 4, the United Nations General Assembly convened the first-ever High-Level Dialogue on interfaith and intercultural understanding. GA/10360 and GA/10632 report on the statements and remarks made by dozens of participants from various nations at the 2-day meeting. General Assembly President Srgjan Kerim emphasized the United Nations "crucial role" in fostering respect for other's religions and beliefs, but, he said, "we should also recognize that a crime committed in the name of religion is the greatest crime against religion; and that religion should not be used as a pretext for war". He urged governments to adopt educational curricula that instill the values of peace and tolerance.

Bishop Say Giuliani and Other Pro-Choice Candidates Should Be Denied Communion

Last Wednesday, the St. Louis Post-Dispatch reported that St. Louis Archbishop Raymond L. Burke said Catholic priests are obligated to refuse communion to Catholic politicians whose positions on abortion contradict Church teachings. Consistent with that position, Burke indicated that he would deny communion to Republican Presidential hopeful Rudy Giuliani. Archbishop Burke, who took similar position in 2004 regarding Democratic Presidential candidate John Kerry, has elaborated on his position in an article titled The Discipline Regarding the Denial of Holy Communion to Those Obstinately Persevering in Manifest Grave Sin, published in a recent issue of Periodica de re Canonica. Burke's article seems to urge the U.S. Bishop's Conference to adopt a uniform national position on the matter, instead of leaving the issue to individual bishops as the Conference did in 2004. (LifeNews, Oct. 4.)

Kansas Supreme Court To Consider Judicial Trigger In Funeral Picketing Law

Last March, following the lead of 32 other states, the Kansas legislature enacted a law (SB 244) banning funeral protests. The laws are aimed at the offensive anti-gay picketing of veterans' funerals by a Topeka-based church. (See prior posting.) Unlike other states, however, the Kansas law contains a "judicial trigger". It does not take effect until the state Supreme Court or a federal court rules that it is constitutional. In May the Kansas Attorney General filed suit in the Kansas Supreme Court to obtain a ruling on the law's constitutionality. Earlier this week, the Kansas Supreme court scheduled a hearing in the case, but only on whether the judicial trigger itself is constitutional, and if it is not, on whether it can be severed from the remainder of the statute. (Order in State ex rel. Morrison, Attorney General v. Kathleen Sebelius, Governor, (KS Sup. Ct., t. 3, 2007). The AP reported on the Court's action in the case.

White House Hosts Iftaar Dinner To Mark Ramadan

Last Thursday evening, the White House hosted some 90 guests at its 7th annual Iftaar Dinner to celebrate the Muslim holy month of Ramadan. (Yahoo News.) In his remarks (full text) in the State Dining Room, President Bush said: "Today, our world is at war with violent extremists who seek to tear the fabric of our society.... We say to them, you don't represent Muslims, you do not represent Islam -- and you will not succeed." Lt. Cmdr. Abuhena Saifulislam, the second Muslim chaplain commissioned in the Navy, gave the blessing before dinner. (American Forces Press Service.) The White House announced that among the invited guests were American Muslim women who had made contributions in science, education, civil society, the arts and culture. Prior to the dinner, the White House website hosted an online interactive forum with Shirin Tahir-Kheli, Special Assistant to the President and National Security Council Senior Director for Democracy, Human Rights and International Operations, answering questions submitted by members of the public regarding the dinner. [Thanks to Melissa Rogers for the lead.]

South African High Court Upholds Hindu-Indian Student's Right to Wear Nose Stud

The Constitutional Court of South Africa yesterday, in KZN MEC of Education v Pillay, (SA Const. Ct., Oct. 5, 2007) held that the Durban Girl’s High School had illegally discriminated against an Indian/ Hindu student by refusing to permit her to wear a nose stud to school. The majority held that the school’s prohibition on wearing jewelry had the potential for indirect discrimination because it permitted some students to express their religious and cultural identity, while denying that right to others. (Court’s Media Summary of decision.) Interpreting South Africa’s Equality Act of 2000, the majority held that generally schools must grant exemptions from dress code requirements for sincerely held religious and cultural practices. However this is not so where the exemption would pose a real possibility of disruption or where a religious or cultural practice is insignificant. Also private schools may have more leeway than public ones in enforcing dress requirements. SABC News reported on the decision. (See prior related posting.)

3rd Circuit Hears Arguments On High School Coach Joining Players In Prayer

On Wednesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Borden v. School District of East Brunswick in which a New Jersey high school is appealing a district court’s ruling that football coach Marcus Borden can participate in student-initiated non-sectarian pre-game prayers offered by football team players. (See prior postings, 1, 2, and full transcript of district court's ruling from the bench.). The AP reports that at oral argument, Judge Theodore A. McKee voiced concern over the rights of players and cheerleaders who did not wish to join in prayer, while Judge Maryanne Trump Barry questioned how the school could enforce a ban on Borden’s bowing his head while his team members prayed. She asked “Are you going to walk around with a ruler?” and “What if he has his head bowed but he says he's not praying?" An article in the Legal Intelligencer reviews the arguments made in the briefs for each side and in the three amicus briefs that were filed. [Thanks to Jack Shattuck for the lead.]

European Parliament Passes Resolution Opposing Teaching of Creationism

On Oct. 4, the Parliamentary Assembly of the Council of Europe approved, by a vote of 48-25 (with 3 abstentions), a Resolution (full text) urging its members “to firmly oppose the teaching of creationism as a scientific discipline on an equal footing with the theory of evolution and in general resist presentation of creationist ideas in any discipline other than religion”. It likewise urges members “to promote the teaching of evolution as a fundamental scientific theory in the school curriculum.” The National Center for Science Education reports on the resolution and links to the Council’s Explanatory Memorandum on it.

In laying the foundation for its recommendations, the Resolution states, in part:

The war on the theory of evolution and on its proponents most often originates in forms of religious extremism which are closely allied to extreme right-wing political movements…. [S]ome advocates of strict creationism are out to replace democracy by theocracy… All leading representatives of the main monotheistic religions have adopted a much more moderate attitude…. The teaching of all phenomena concerning evolution as a fundamental scientific theory is therefore crucial to the future of our societies and our democracies. For that reason it must occupy a central position in the curriculum, and especially in the science syllabus, as long as, like any other theory, it is able to stand up to thorough scientific scrutiny.

Editorial Examines Tensions Between Free Exercise and Church-State Separation

This week’s Forward carries a fascinating editorial on the relationship between religious freedom and church-state separation. Focusing on the Jewish holiday of Simchat Torah, celebrated this past Thursday evening and Friday, the editorial reflects the tensions inherent in reconciling the two religion clauses of the First Amendment. It points out that most Jews in America see separation of church and state as a bedrock principle that assures them full and equal status as citizens. Yet despite insistence that the public square be religiously neutral, in many U.S. cities on Simchat Torah synagogues sponsor celebrations on the public streets, dancing and singing while holding Torah scrolls—a practice developed in the Soviet Union in the 1960’s to protest Communist repression.

The editorial recognizes the contradiction inherent in this, and comment that “the lines are never that clear or simple”. It concludes by saying that in the battle to maintain separation of church and state—which must continue to be fought-- Jewish liberals should not demonize conservatives who are trying to bring religion back to the public square, because “the Bible that conservatives seek to post on courthouse walls is the same one the we danced with on our blocked-off streets and avenues this week.” The full editorial is definitely worth reading.

11th Circuit Interprets RLUIPA-- Damage Claims Permitted With Restrictions

In a 53-page decision handed down last Tuesday, the U.S. 11th Circuit Court of Appeals weighed in on important issues of damages under the Religious Land Use and Institutionalized Persons Act. While ultimately holding that denial of a crystal, a worship spot and a fire pit to a prisoner did not place a substantial burden on his practice of Odinism, in Smith v. Allen, (11th Cir., Oct. 2, 2007), the court held that the RLUIPA authorizes suits for damages. This was apparently the first ruling on the issue by a federal circuit court. However, according to the court, a prisoner plaintiff’s claims for monetary relief are significantly limited by the Prison Litigation Reform Act which precludes compensatory damages for solely mental or emotional injury. Also suits for damages may not be brought against officials in their personal capacities, but only in their official capacities—so that they are not liable for damages out of their personal assets.

In another portion of its opinion the court found that plaintiff’s reincarceration revived an injunctive claim that had initially been mooted by his release from prison. The Tuscaloosa News covered the decision which involved a prisoner held in an Alabama correctional institution. [Thanks to Derek Gaubatz for the lead.]

Parishioner Sues Priest Over Disparaging Homily Remarks

In McHenry County, Illinois, a Roman Catholic parishioner has filed a "false light" invasion of privacy lawsuit against Rev. Luis Alfredo Rios and Monsignor Daniel Hermes, both of St. Thomas the Apostle Parish, and against the Diocese of Rockford. Angel R. Llavona is asking for $50,000 in damages because of a sermon given by Fr. Rios. The incident began with Llavona left a message on Rios' answering machine telling him that "I have seen poor homilies, but yesterday broke all records." After their attempts to meet did not go well, Rios used the next Sunday's masses to play the answering machine message to the entire congregation. Then Rios commented to the congregation: "This is the person in charge of religious education here last year. That’s why it is no surprise to me we had the kind of religious education we had. That’s why we didn’t get altar boys. What should we do, should we send him to Hell or to another parish?" The Northwest Herald (Crystal Lake, IL) and the Daily Herald (Arlington Heights, IL) both report on the case.

Kentucky District Court Follows Up On 10 Commandments Lawsuits

A Kentucky federal district court has dismissed as moot a lawsuit challenging a 10 Commandments display in a Harlan County school. The student challenging the display no longer attends the school. The court also issued a complex ruling in the lawsuit against McCreary and Pulaski counties over their courthouse displays of the 10 Commandments in a Foundations of American Law exhibit. In 2005, the U.S. Supreme Court upheld the lower court's granting of a preliminary injunction against the displays. Yesterday's Louisville Courier-Journal reports that the district court refused to issue a permanent injunction in the case, since the Supreme Court held that in the future, the counties might be able to prove that they had purged themselves of their original religious purpose and were displaying the 10 Commandments only for secular purposes. However, the court also refused to permit the counties to restore the displays, finding that the counties had not yet eliminated their former religious motivation.

UPDATE: The full opinion in the case is now available: ACLU of Kentucky v. McCreary County,
2007 U.S. Dist. LEXIS 77338 (ED KY, Sept. 28, 2007).

Court Rejects 1st Amendment Challenge To Sex Offender Treatment

In Schnitzler v. Reisch, 2007 U.S. Dist. LEXIS 72938 (D SD, Sept. 28, 2007), a south Dakota federal court rejected a claim by a prison inmate that his required participation in a group sex offender program violated his religious beliefs by requiring him to engage in explicit sexual discussions and to view sexual images. The court held that "plaintiff's religious beliefs and the right to the free exercise of religion under the First Amendment do not prevent him from being required to fully participate in a purely sectarian sex offender treatment program. The government and the public have a 'vital' interest in full and meaningful participation and rehabilitation by convicted sex offenders in such programs." The court also construed plaintiff's complaint as raising a RLUIPA claim and ordered defendants to respond to that allegation.

Las Cruces Case Argued In 10th Circuit

On Monday, the U.S. 10th Circuit Court of Appeals heard oral arguments in Weinbaun v. City of Las Cruces, New Mexico in which plaintiffs are challenging the official symbol of Las Cruces-- three crosses surrounded by a sunburst. The lower court found no Establishment Clause problem with the emblem. (See prior posting.) The Las Cruces Sun News reports that the 10th Circuit arguments focused on whether a reasonable observer would believe the emblem to be an endorsement of religion.

Court Employees Sue To Use Jury Room For Bible Study

In San Diego, California yesterday, two Superior Court employees have filed suit to regain the right to use the court's jury room at lunch time for a Bible study group. Christian Newswire reports that court employees Mindy Barlow and Dalia R. Smith were denied permission to use the jury room or an empty court room, even though the Bible group had been meeting for six years using courthouse facilities. The complaint (full text) in Barlow v. Superior Court of California, (SD CA, Oct. 2, 2007) alleges that various First and 14th Amendment rights of plaintiffs have been infringed. It says defendants have permitted non-religious groups to use court facilities for non-court related events or meetings.

BBC Gives Inside Look At Nigerian Sharia Court

On Monday, BBC News posted a lengthy report on the operation of a Sharia court in the northern Nigerian state of Zamfara-- the first Nigerian state to introduce Islamic law. The report concludes:

Most of the people that I met in Zamfara said they welcomed Sharia. It has cut down drinking and violence, and the court is no longer an intimidating place of wigs and gowns, doing business in a language that they do not understand.

After six weeks in Zamfara, I can see how Judge Isah's court functions well as a small claims court for this rural Islamic society. But my reservations about Sharia remain the same. For me, the sticking points are still the floggings and the amputations, and the undeniably unfair treatment of women in rape and adultery cases.

Court Rejects Summary Judgment In Mosque's Land Use Challenge

In Albanian Associated Fund & Imam Arun Polozani v. Township of Wayne, 2007 U.S. Dist. LEXIS 73176 (D NJ, Oct. 1, 2007), a New Jersey federal district court refused to grant summary judgment to either side in a case in which developers of a mosque challenged a Township's attempt to take their property as part of an Open Space Plan. Plaintiffs claimed that the Township's actions violated RLUIPA and the First Amendment. The court held that the manner in which the plaintiffs' property was pursued supports an indication of discriminatory purpose. It also found that a question of fact exists as to whether the Township's actions created a substantial burden on the Mosque and as to whether it violated the nondiscrimination provisions of RLUIPA. Finally the court postponed until any trial the question of whether the protection of open space is a compelling governmental interest.

Irish Hospital Says No Right To Reject Transfusion On Religious Grounds

In Dublin, Ireland, Coombe Women's Hospital is claiming in a court suit that a woman's freedom of conscience and free exercise of religion are not a basis for the woman to decline appropriate medical treatment. Last September, the hospital convinced an Irish court to issue an emergency order permitting it to give a life-saving blood transfusion to a Jehovah's Witness who had lost blood in childbirth. Now, according to yesterday's RTE News, the Attorney General has been brought in as a defendant in the case. The Hospital claims that it had a duty to protect and safeguard the woman's right to life, and was obliged to protect the family life of the woman and her child and to protect the rights of her child to be nurtured and reared by his mother. The mother, identified only as Ms K, says the transfusion infringed her rights under the European Convention on Human Rights to refuse medical treatment.

GAO Issues Report On Military Conscientious Objectors

The Government Accountability Office has issued a report on the number of conscientious objector applications received by the U.S. military, and the handling of those applications. The GAO summary of the Sept. 28 report says:

During calendar years 2002 through 2006, the active and reserve components reported processing 425 applications for conscientious objector status. This number is small relative to the Armed Forces' total force of approximately 2.3 million servicemembers. Of the 425 applications the components reported processing, 224 (53 percent) were approved.... Each component's process is essentially the same, taking an average of about 7 months to process an application.... Officials from all the components stated that they attempt to temporarily reassign applicants to noncombatant duties while their applications are pending. Conscientious objector status is not considered when determining eligibility for benefits.... Of those 224 servicemembers whose applications were approved for conscientious objector status, 207 received honorable discharges....

The full text of the report is available online. A story in today's North Coast Times focuses on data from the report for CO's in the Marine Corps.

Three More Cert. Denials In Religion Cases

In addition to the two denials of cert. which were previously featured (1) (2), the U.S. Supreme Court also denied certiorari yesterday in three additional religion cases in its lengthy Order List. The additional denials are in:

Boggan v. Mississippi Conference of the United Methodist Church, (Docket No. 06-1459). The court below relied on the ministerial exception to Title VII of the 1964 Civil Rights Act to dismiss a claim by a pastor that he and other African-American pastors had not been promoted to higher paying church positions because of their race. (See prior posting.) The 5th Circuit Court of Appeals affirmed the district court in a short per curiam opinion last February.

Vision Church v. Village of Long Grove, (Docket No. 06-1497). The 7th Circuit Court of Appeals below rejected challenges to a special use permit requirement, and held that the involuntary annexation of Vision Church's land was not a land use regulation covered by RLUIPA. (See prior posting.)

Barrow v. Greenville Independent School District, (Docket No. 07-59). A 5th Circuit opinion below had rejected a claim that a policy of disfavoring public school teachers whose children attend private school imposed a disparate impact on those sending their children to religious schools. [Thanks to Blog from the Capital for the lead.]

U.S. Postal Service Reissues Eid Postage Stamp

Now that first class postage rates have gone up, the U.S. Postal Service has reissued its commemorative stamp honoring the Muslim holy days of Eid al-Fitr and Eid al-Adha. (Associated Press). The stamp first issued in 2001 is now available for 41-cent first class postage. [Thanks to Alliance Alert for the lead.]

Paper Reports On Mennonites and Liberty Bonds In World War I

Yesterday's edition of the New Philadelphia, Ohio Times Reporter carried an interesting article on the experience of Ohio Mennonite pacifists during World War I. Local newspaper editor Samuel H. Miller was convicted under the Espionage Act after he published an article by Mennonite Bishop Manasses Bontrager of Dodge City, Kansas. Bontrager argued that purchasing Liberty Bonds violated Mennonite teachings against violence and bloodshed. Bontrager was also tried in Ohio, and both defendants, who could have been sentenced to 20 years in prison, were merely fined $500. Meanwhile, local officials worked out a plan that allowed Amish and Mennonites to purchase Liberty Bonds indirectly, without violating their religious beliefs. Special bank accounts were created in which pacifists could deposit money for a ten year period. Then the bank used the funds to buy the bonds.

School Affiliated Foundation Criticized For Funding Christian-Themed Program

In Kimberly, Wisconsin, the nonprofit Positive Youth Development Foundation (PYDF), which is affiliated with the Kimberly Area School District, awards grants to promote youth and family development and prevent at-risk behaviors. Today's Appleton Post Crescent reports that the Freedom From Religion Foundation is questioning PYDF's role in sponsoring last week's Secret Keeper Girl Bod Squad Tour-- a program for girls in grades 3 to 6 created by Christian author Dannah Gresh-- that urges modest dress. The event was moved from Kimberly High School to a local church after a complaint from Americans United for Separation of Church and State. However the Foundation continued its $500 sponsorship.

Conservative Christian Leaders Threaten To Support Third-Party Candidate

The New York Times reported on Sunday that a group of prominent conservative Christian leaders meeting in Salt Lake City agreed that if the Republican Party nominates a pro-abortion candidate, they will consider supporting a yet-unnamed third-party contender for the Presidency. The resolution is aimed at Republican front-runner, Rudolph Giuliani, who supports abortion rights. Among those at the small meeting that made this decision were James Dobson of Focus on the Family; Tony Perkins of the Family Research Council; and direct-mail expert Richard Viguerie.

EEOC Sues For Discrimination: Muslim Woman Fired For Wearing Headscarf

The EEOC last week filed suit against Geo Group, a company that operates Pennsylvania's Delaware County Prison. MSN Money reported yesterday that the lawsuit claims Geo engaged in religious discrimination when it fired a Muslim prison nurse for wearing a headscarf to work. The company has denied other Muslim women exemptions from its dress code in the past. The EEOC says that Geo had an obligation to accommodate the religious practices of Carmen Sharpe-Allen and other female Muslim employees. [Thanks to Jack Shattuck for the lead.]

More Prisoner Free Exercise Cases Decided

In Shilling v. Crawford, 2007 U.S. Dist. LEXIS 70694 (D NV, Sept. 21, 2007), a Nevada federal district court held that a Jewish prisoner's Free Exercise and Equal Protection rights were not violated when prison authorities informed him that to satisfy his request for kosher meals, he would need to be transferred to a different correctional facility.

In Oakden v. Bliesner, 2007 U.S. Dist. LEXIS 70948 (ND CA, Sept. 21, 2007), a federal district judge rejected a First Amendment claim by a prisoner who was a member of the white-supremacist Church of the Creator. It found that plaintiff's requested raw food diet is a recommendation, but not a central requirement, for members of the Church.

In Keesh v. Smith, 2007 U.S. Dist. LEXIS 71165 (ND NY, Sept. 25, 2007), a New York federal district court upheld against Free Exercise and RLUIPA challenges a Department of Corrections requirement that a religion within the prison must have an outside sponsor in order to be recognized and approved for congregate services and classes. Plaintiff Tyheem Keesh was the founder and leader of the Tulukeesh religion, and sought to require prison authorities to accommodate its requirements for a special type of vegan diet, martial arts training, specific hygiene requirements, possession of religious items and a ban on strip searches of Tulukeesh members by prison staff.

In Hardaway v. Haggerty, 2007 U.S. Dist. LEXIS 71814 (ED MI, Sept. 27, 2007), a Michigan federal district judge adopted the recommendations of a federal magistrate, holding that prison officials had qualified immunity from damage claims in connection with their seizure from plaintiff of religious material from the Nation of Gods and Earths (NGE). However, plaintiff was permitted to proceed with his claim for an injunction seeking removal of the "Security Threat" designation given to NGE and challenging the taking of his NGE religious literature.

In Jaspar v. Moors, 2007 U.S. Dist. LEXIS 72116 (ED CA, Sept. 27, 2007), a California federal Magistrate Judge concluded that RLUIPA is applicable to claims seeking redress for individual retaliatory conduct of a prison chaplain who, plaintiff claimed, took action against him because he is Jewish.

In Izquierdo v. Crawford, 2007 U.S. Dist. LEXIS 71608 (ED MO, Sept. 26, 2007), a Missouri federal district court rejected a prisoner's claims that his rights under the First Amendment and RLUIPA were violated when the prison refused to provide religious services and programs for Shiite Muslims separate from those offered for Muslims in general that were led by a Sunni inmate.

Cert. Denied In Case On Exclusion of Worship Services From Library Room

The U.S. Supreme Court today denied cert. in a second church-state case, Faith Center Church v. Glover, (Docket No. 06-1633) (Order list.) In the decision below, a panel of the 9th Circuit held that the Contra Costa County, California, public library could make its meeting room available for "meetings, programs, or activities of educational, cultural or community interest", while excluding their use for "religious services". (See prior posting.) An en banc rehearing was denied by a sharply split 9th Circuit. (See prior posting.) AP reports on the cert. denial. [Thanks to Melissa Rogers for the lead.]

Cert Denied In NY Case On Contraceptive Coverage For Faith-Based Groups

The U.S. Supreme Court today denied certiorari in Catholic Charities of the Diocese of Albany v. Dinallo, (Docket No. 06-1550) (Order list.) Yahoo News reports on the case in which New York's highest court upheld a provision in the state's Women's Health and Wellness Act that requires faith-based organizations to include contraceptive coverage for women in any prescription plan that they offer employees. (See prior posting.) Twenty-two other states have similar laws. [Thanks to Brad Pardee via Religionlaw for the lead.]

DC Fire Department Must Allow Beards Worn For Religious Reasons

In Potter v. District of Columbia, (D DC, Sept. 28, 2007), the federal district court for D.C. held that under the Religious Freedom Restoration Act, the D.C. fire department may not enforce requirements to be clean-shaven on firefighters and paramedics who wear beards for religious reasons. At the heart of the dispute in the case was the question of the extent to which facial hair interferes with the effective operation of face masks that firemen sometimes need to use for respiratory health and safety. The court concluded that most of the time, firefighters used a self-contained breathing apparatus (with an air tank), and that beards did not pose a problem for these. At issue was whether bearded firefighters could safely use air purifying respirators in which they breathed in outside air. The court held that in the rare case that this was required, a less restrictive mans of accommodating those who wear beards for religious reasons is to reassign them away from duties that require that sort of respiratory system. Friday's Washington Post reported on the case. (See prior related posting.)

McCain Says US Is Christian Nation; Skeptical of Muslim As President

On Saturday, Beliefnet posted a partial transcript of an interview with presidential hopeful John McCain that has drawn extensive media attention, including this article from the New York Times. Two portions of the interview are of particular interest. Asked whether he agreed the Constitution establishes the U.S. as a Christian nation, he replied:

I would probably have to say yes, that the Constitution established the United States of America as a Christian nation. But I say that in the broadest sense. The lady that holds her lamp beside the golden door doesn't say, "I only welcome Christians." We welcome the poor, the tired, the huddled masses. But when they come here they know that they are in a nation founded on Christian principles.

Asked about the possibility of a Muslim candidate for President, he said:

... I just have to say in all candor that since this nation was founded primarily on Christian principles.... personally, I prefer someone who I know who has a solid grounding in my faith. But that doesn't mean that I'm sure that someone who is Muslim would not make a good president. I don't say that we would rule out under any circumstances someone of a different faith....

After the interview, McCain called Beliefnet to clarify his response: "I would vote for a Muslim if he or she was the candidate best able to lead the country and defend our political values." Beliefnet will post a longer transcript of the interview today.

UPDATE: In New Hampshire on Sunday, McCain appeared to be having second thoughts about some of his Beliefnet statements. The AP quotes him: "... maybe I should have kept my comments to the fact that I'm a practicing Christian, I respect all religions and beliefs, and that I support the principles, the values of the Founding Fathers... rather than getting into ... a Talmudic discussion." [Thanks to Melissa Rogers for the lead.]

UPDATE 2: Beliefnet has now posted a longer version of its interview with McCain, as Jewish and Muslim groups criticize McCain's remarks. (ADL, AJCommittee, CAIR).

UAE Rules On Ramadan Work Week Apply To Non-Muslims Also

Labor law in the United Arab Emirates sets the working day during Ramadan at six hours. Employees must be paid time-and-a-half after that. (See UAE Labor Law, Art. 65.) According to yesterday's Khaleej Times, the Ministry of Labour has made it clear that this requirement applies to non-Muslim employees during Ramadan, as well as to Muslims. The clarification came after an Abu Dhabi-based company was requiring non-Muslims to work normal 8-hour days without overtime pay.

Recent Articles on Church-State, Law & Religion

From SSRN:

• Richard W. Garnett, Religion and Group Rights: Are Churches (Just) Like the Boy Scouts?, (St. John’s Journal of Legal Commentary, Vol. 22, Fall 2007).

From Bepress:

• Muslim World Journal of Human Rights, (Special Double Issue, Vol. 4, Issues 1 & 2), The Transnational Muslim World, Human Rights, and the Rights of Women and Sexual Minorities, (2007). [Full text of 11 articles, plus notes and review.]

From University of Copenhagen Conference on Religion in the 21st Century:

• Santiago Cañamares Arribas, Religious Symbols in Spain: A Legal Perspective, (2007).

From SmartCILP:

• Stefan Braun, Second-Class Citizens: Jews, Freedom of Speech, and Intolerance on Canadian University Campuses, 12 Washington & Lee Journal of Civil Rights and Social Justice 1-50 (2006).


• James Adam Browning, Newdow v. United States Congress: Is there Any Room for God?, 34 Northern Kentucky Law Review 51-70 (2007).


• Adam S. Chodorow, Maaser Kesafim and the Development of Tax Law, 8 Florida Tax Review 153-208 (2007).


• Sarah Barringer Gordon, "Free" Religion and "Captive" Schools: Protestants, Catholics, and Education, 1945-1965, 56 DePaul Law Review 1177-1220 (2007).


• Edward C. Lyons, Reason's Freedom and the Dialectic of Ordered Liberty, 55 Clevland State Law Review 157-233 (2007).


• Frederick V. Perry, Shari'ah, Islamic Law and Arab Business Ethics, 22 Connecticut Journal of International Law 357-377 (2007).


• Nadine Strossen, Freedom and Fear Post-9/11: Are We Again Fearing Witches and Burning Women?, 31 Nova Law Review 279-314 (2007).


• Commentary: Law, Buddhism, and Social Change: A Conversation with the 14th Dalai Lama, September 20-21, 2006. Introduction by Rebecca R. French; articles by Rebecca R. French, Kenneth M. Ehrenberg, David M. Engel, R.A.L.H. Gunawardana, James L. Magavern, Kenneth Shockley, Vesna Wallace and Richard W. Whitecross; panelists: Timothy Brook, George Dreyfus, Kenneth Ehrenberg, David Engel, Rebecca French, Leslie Gunawardana, George Hezel, His Holiness the Dalai Lama, James Magavern, Elizabeth Mensch, Fernanda Pirie, Frank Reynolds, Lobsang Shastri, Kenneth Shockley, Winnifred Sullivan, Vesna Wallace and Richard Whitecross. 55 Buffalo Law Review 635-735 (2007).

Church Can Sue City for Damages, But Not Injunction, In Zoning Dispute

In Family Life Church v. City of Elgin, 2007 U.S. Dist. LEXIS 70545 (ND IL, Sept. 24, 2007), an Illinois federal district court permitted a church and a homeless person served by it to move ahead with some of their claims against the city of Elgin, Illinois, but dismissed other of their claims. Plaintiffs were permitted to move ahead with claims for damages growing out of Elgin's delay in granting the church a conditional use permit that resulted in the closure of a homeless shelter that had operated church property. However, since the church now had a conditional use permit, the court rejected plaintiffs' attempt under RLUIPA and state law to enjoin Elgin's use of its zoning code in the future to prevent the church from using its property for a homeless ministry.

Courts Face Childrens' Religious Claims Regarding Treatment of Fathers' Bodies

In two rather different recent case, courts have been faced with religious claims by children regarding the handling of their fathers' body after death. In Stone v. Allen, 2007 U.S. Dist. LEXIS 71893 (SD AL, Sept. 25, 2007), the daughter of death row inmate Thomas Arthur sought a preliminary injunction to prevent authorities from performing an autopsy on her father after his execution. She alleged that the autopsy violated her religious beliefs, and would interfere with her right to possess and dispose of her father's body. Her father was not a party to the lawsuit. The court held that a performance of an autopsy on plaintiff's father would not infringe plaintiff's First Amendment Free Exercise rights. In fact, Arthur has not yet been executed because Alabama Gov. Bob Riley at the last minute on Thursday issued a 45-day stay of execution so that the state can complete plans to change its lethal injection protocol. (Birmingham News.)

Meanwhile, in Franklin, Tennessee, a Williamson County Chancery Court Judge has issued a temporary injunction preventing the cremation of Howard Lee Rothenstein, who died Sept. 21. Today the court will hold a hearing on the dispute between Rothstein's wife who wants his remains created, and Rothstein's son who says that his father is Jewish and should be buried according to Jewish traditions. Friday's Tennessean says that court papers filed by the son object to his stepmother's plans for the body, saying "cremation is particularly disrespectful to this decedent since he ... had relatives whose bodies were burnt by the Nazis during the Holocaust."

Fire Company's Role In Transporting Virgin Mary Statue Criticized

Americans United for Separation of Church and State has written the Jackson Mills, New Jersey Fire Company complaining of its role in transporting a 9-foot tall statue of the Virgin Mary between area churches. AU says that the fire department's activities create an "unmistakable message" of governmental endorsement of religion, particularly of the Catholic faith. (Text of Sept. 26 Letter). The tour of the statue around New York, in commemoration of the anniversary of 9-11, is sponsored by the Ohio-based Our Lady of America Center. According to the AU Release:

In New York, the firefighters, dressed in their official uniforms, carried the statue into the Church of St. Peter and helped install it near the altar. In Howell, the firefighters transported the statue to St. Veronica’s Roman Catholic Church and used a fire truck, with lights flashing and sirens blaring, as part of a processional that culminated in the parking lot of the church.

The motorcade also included fire trucks from nearby Jackson Township and police vehicles. The firefighters then joined members of the Knights of Columbus in carrying the statue into the church, and the event concluded with a special mass.

Rastafarian High Schooler Disciplined For Violating Dress Code

In the small town of Leakey, Texas, high school student Ben Daley—a former Baptist who became a Rastafarian—is in conflict with his high school that insists he cut his hair in order to comply with the school’s dress code. Daley—who says his religious beliefs require long hair-- is being isolated from the rest of his classmates in an alternative program until he complies with the school’s demand. Internet Broadcasting reports that school superintendent Fred McNeil says he needs support from the school board before he can grant Daly an exception from the dress code for religious reasons. The Leakey Star reports that Daley and his father spoke before the school board earlier this month, asserting Ben’s constitutional rights. Board president Jerry W. Bates says no ruling will be made by the board until next month’s meeting. Meanwhile Ben was prohibited from participating in this month’s Homecoming activities. Ben’s father, John Daley, has contacted a San Antonio TV station and the ACLU for assistance.

Hawaii Supreme Court Rejects Free Exercise Defense In Marijuana Case

In State v. Sunderland, (HI Sup. Ct., Sept. 21, 2007), the Hawaii Supreme Court held that the First Amendment's Free Exercise clause is not a viable defense to a prosecution under state law for illegal possession of marijuana. The court also found that defendant Joseph Sunderland failed to preserve for appeal his argument that use of marijuana for religious purposes in his own home is protected by his right to privacy. Three justices dissented on this point, but, after reaching the merits of the privacy argument, only one of those three concluded that Sunderland's defense should prevail. (Text of dissents 1, 2, 3).

KY County Removes 10 Commandments Display After Adverse Court Decision

The AP reports that last Wednesday, Garrard County, Kentucky officials took down a Ten Commandments display from the walls of the Fiscal Court. The action follows the decision earlier this month in American Civil Liberties Union of Kentucky v. Garrard County, Kentucky, 2007 U.S. Dist. LEXIS 70711 (ED KY, Sept. 5, 2007) in which a federal court suggested that the display of the 10 Commandments along with other historical documents violates the Establishment Clause. It found "sufficient evidence of the county's improper religious purpose in the extended history and evolution of the ... display" to deny defendant's motion for summary judgment. Summarizing the issue in the case, the court asked: "If a county gets it wrong in displaying the Ten Commandments, what does it then take to get it 'right' such that it passes constitutional muster?" (See prior related posting.)

Facial Challenge Rejected To School's Limits On Handouts

A Texas federal district court has rejected a facial challenge to the policy of the Katy (TX) Independent School District that restricts student distribution of non-school materials on school premises. In Pounds v. Katy Independent School District, 2007 U.S. Dist. LEXIS 70505 (SD TX, Sept. 24, 2007), plaintiffs claimed that teachers and the principal at Pattison Elementary School prevented children from distributing literature with a Christian message at school. The court upheld the school’s policy that requires advance approval, subject to specific content-neutral and viewpoint-neutral guidelines, for children to distribute more than ten copies of non-school material. Plaintiffs’ "as applied" challenge to the school regulations remains to be litigated

U.S. House Calls for Religious Accommodation By Mock Trial Group

Last Tuesday, the U.S. House of Representatives passed H. Res. 25, a resolution calling on the Board of Directors of the National High School Mock Trial Championship to accommodate students of all religious faiths. At issue is whether the normal Friday-Saturday schedule for the competition will be modified to permit the team from Torah Academy of Bergen County of Teaneck, New Jersey to participate without violating the Jewish Sabbath. Accommodation was made for them in the 2005 competition, but organizers voted to refuse accommodations in the future. This led the North Carolina Academy of Trial Lawyers to withdraw from participation in protest. The House resolution says "the decision of the Board of Directors … to refuse any future accommodations for students who observe their Sabbath on Friday and/or Saturday adversely and wrongly impacts observant Jewish, Muslim, and Seventh-Day Adventist students … [and] is inconsistent with the spirit of freedom of religion or equal protection."

City Street Fair Program Drawing Offends Christians

Christian groups are complaining about the drawing on the cover of the official program guide for San Francisco’s September 30th Folsom Street Fair, according to CNS News. The festival is funded in part by the city’s Grants for the Arts program. The controversial cover features a poster apparently based on Leonardo Da Vinci's painting of "The Last Supper". In this version, however, Jesus and his apostles are replaced with leather-clad men and women. On the supper table are bondage sex toys. House Speaker Nancy Pelosi, in whose district the festival will be held, said that the drawing was protected by the First Amendment and that she did not believe that Christianity had been harmed by the drawing.

Faith-Based Groups Get Increasing Share of Substance Abuse Voucher Funds

The Roundtable on Religion & Social Welfare Policy reported last week on the increasing participation by religious organizations in offering substance abuse treatment funded by federal government vouchers. A recent report by the Department of Health & Human Services reveals that in the Access to Recovery voucher program, 31% of clinical treatment services and 22% of recovery support services have been furnished by faith-based organizations. According to The Roundtable, critics have complained that many of the faith-based programs funded by ATR do not meet state licensing requirements, and are permitted to use religiously-based materials in treatment programs. [Thanks to Blog from the Capital for the lead.]

Senate Passes Hate Crimes Expansion Over Objections of Christian Groups

The U.S. Senate on Thursday passed the Matthew Shepard Local Law Enforcement Hate Crimes Prevention Act of 2007, adding it as an amendment to the 2008 National Defense Authorization Act. The Senate invoked cloture on the amendment by a vote of 60-39, and then passed the amendment by voice vote. The House has already passed the much-debated hate crimes bill as a stand-alone piece of legislation. Friday’s Washington Post described the bill: "the definition of a hate crime would expand to include gender, sexual orientation, gender identity and disability. Local law enforcement officials would be allowed to apply for federal grants to solve such crimes, and federal agents would be given broader authority to assist state and local police. More stringent federal sentencing guidelines would also be instituted."

Conservative Christian groups strongly criticized the Senate’s action. Tony Perkins, president of the Family Research Council, said: "preserving equal justice under the law is more important than scoring points with advocates of homosexual behavior. All violent crimes are hate crimes, and every victim is equally important…. Congress should represent all Americans, not give special protections for some." (Christian Post). In the past, some Christian groups have argued that the bill interferes with their right to preach against homosexual behavior. At a press briefing following the Senate’s action, White House press secretary Dana Perino reiterated the White House’s opposition to the hate crimes bill, but stopped short of repeating previous promises by the President to veto the bill. (See prior posting.)

Court Will Decide Part of Buddhist Temple's Claim Against Parent Body

Jodo Shu Betsuin, a Buddhist Temple, was expelled from the Jodo Shu Buddhist sect by the umbrella organization that oversees the sect in North America. The expulsion resulted from an ongoing dispute over who would be the religious leaders of the Temple. After the expulsion, the umbrella organization prohibited the Temple from using its former property. The Temple sued for damages, claiming it was wrongfully evicted, seeking return of furnishings, religious objects and computers in the Temple, and seeking an order dissolving its oral partnership with the umbrella group. In Jodo Shu Betsuin v. Jodoshu North American Buddhist Missions, (Ct App. CA, Sept. 25, 2007), a California Court of Appeals permitted plaintiff to move to trial on two of its three claims.

The court held that adjudicating the eviction claim would unconstitutionally involve the court in determining an ecclesiastical issue—whether the disaffiliation pronouncement was properly reached: "The expulsion resulted from a dispute involving religious leadership. The religious leaders in question had been appointed by Jodo Shu leaders in Japan. The disaffiliation decision was confirmed at the highest levels of the hierarchical religious organization in Japan. The disaffiliation decision necessarily barred plaintiff from use of the temple property…." However the court held that the claims for conversion and partnership dissolution could probably be adjudicated without considering the propriety of the umbrella group’s disaffiliation order. Those claims, it held, created issues that should to go to trial.

Dissenting in part, Judge Mosk said: "If the lease is such that the plaintiff could not be evicted for doctrinal disputes or issues, then a court could determine that there was a wrongful eviction without addressing internal religious matters on the disaffiliation. Thus far, defendants' defense is not justification for the eviction, but rather that there was no valid lease."