Split 9th Circuit Rejects En Banc Review In Sunrise Rock Cross Case

Yesterday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals issued an amended opinion in Buono v. Kempthorne, (9th Cir., May 14, 2008), eliminating one footnote, but otherwise reaffirming its holding finding Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. (See prior posting.) The deleted footnote had indicated disagreement with a 7th Circuit case on land transfers undertaken to end Establishment Clause problems.

After the panel refused to grant a rehearing, the full court also refused to grant an en banc rehearing. However, in a long opinion, five judges dissented from the denial en banc review. The dissent argues that there is no evidence that the government will maintain or support the Sunrise Rock Cross after its transfer, and says that the VFW should not be required to sacrifice its private rights in the Sunrise Rock land in order to cure an Establishment Clause violation by the government. [Thanks to How Appealing for the lead.][Corrected].

New York Town Transfers Enforcement of Building Codes Against Amish to State

In the face of possible lawsuits by the Amish community over building code enforcement against them, the town board of Conewango, New York yesterday voted to opt out of code enforcement and turn enforcement over to state authorities. Thus any lawsuits will be filed against the state and not against the town. Yesterday's Jamestown (NY) Post-Journal reports that the Amish have concerns about both some of the substantive code requirements and about the mandate to furnish workers compensation insurance to those hired to help with the construction.

Court Concludes Paratrooper Is Entitled To Conscientious Objector Status

In Barnes v. Green, (D AK, May 13, 2008), an Alaska federal magistrate judge concluded that an Army paratrooper's request for conscientious objector status be granted. The court rejected the Army's contention that Michael Barnes was not sincere in his claim that he was a conscientious objector, saying:

Much is made of the fact that Barnes did not attend church services in Iraq. While [this] ... might hold sway if there were other facts showing a sudden and convenient getting of religion, surely the Army agrees that it is not its province to suggest there is a proper way to be a Christian, or for that matter, to lay claim to or practice any other form of religion....

The fact that Barnes’ thought processes may not have been "mature" is of no moment. One need not be a St. Augustine or a St. Thomas Aquinas to qualify as CO, indeed conscientious objection has no necessary relation to intellectual sophistication....

The evidence is overwhelming that Barnes – a motivated infantryman –is a person who takes his religious beliefs seriously, and there is strong evidence that his decision was motivated by those beliefs.... True, the timing of Barnes’ decision is suspect. But that alone cannot be the basis for denying his application....

Instead of remanding the case to the Army's Conscientious Objector Review Board, the court concluded that Barnes' petition for habeas corpus and mandamus should be granted and the Army should be ordered to grant Barnes an honorable discharge. The Army has until tomorrow to appeal the magistrate's findings. Yesterday's London Guardian reports on the decision.

UPDATE: the May 24 Anchorage Daily News reports that the Army has appealed the magistrate's decision to federal district Judge John Sedwick.

Massachusetts Agrees That Non-Jewish Prisoner Gets Kosher Diet

Yesterday, the U.S. 1st Circuit court of Appeals dismissed as moot the case of Guzzi v. Thompson, (1st Cir., May 14, 2008). A release by the Becket Fund explains that the dismissal comes after Massachusetts prison authorities agreed to allow a prisoner who requested kosher food for religious reasons to have access to it even though the prisoner is not Jewish. The Becket Fund had argued to the 1st Circuit that "governments should not be deciding whether a religious belief is orthodox."

No Summary Judgment In Colorado Episcopal Church Property Dispute

In Grace Church & St. Stevens v. Bishop and Diocese of Colorado, (CO Dist. Ct., May 13, 2008), a Colorado state trial court judge rejected summary judgment for either side in a counterclaim arising out of a lawsuit over ownership of an historic church building in downtown Colorado Springs. An article on Virtue Online sets out the background of the case. In May 2007, by a vote of 93% in favor, Grace Church and St. Stephen's voted to move its affiliation to the Convocation of Anglicans in North America. After the congregation sued asking a judge to declare that Colorado's Episcopal Diocese no longer owns the assets of the parish, the Diocese filed a counterclaim against vestry members. They in turn asserted a defense based on immunity of non-profit directors. At issue is whether the corporation that is plaintiff ever formally owned the property at issue. The court indicated that in Colorado, church property disputes are resolved through neutral analysis, but that no neutral analysis can be undertaken until the relevant facts are known. (See prior related posting.)

Website Says Grassley's Investigation of Televangelists Reflects Religious Bias

Yesterday's Des Moines (IA) Register reports that a sophisticated website has been set up to attack the investigation of six "prosperity gospel" televangelists by Sen. Charles Grassley. (See prior posting.) The Believers Stand United website is sponsored by one of the groups under investigation-- Kenneth Copeland Ministries. The website argues that Grassley is "only targeting those Pentecostal-Charismatic churches who preach the 'Word of Faith' message and not any other churches.... It appears the inquiry is aimed at publicly questioning the religious beliefs of the targeted churches, their ministers, and their members while ignoring televangelists of other denominations. This violates the fundamental tenet of the First Amendment that the government should not single out any religion because of its beliefs. It also raises the question of religious bias against the Pentecostals and Charismatics who now number almost 70,000,000 Americans...."

Court Dismisses Free Exercise Challenge To Civil Commitment After Marijuana Charge

In Simmons v. Seal, 2008 U.S. Dist. LEXIS 38355 (ND CA, April 24, 2008), plaintiff brought a federal civil rights action challenging his commitment to Napa State Hospital after he was arrested for marijuana possession and found incompetent to stand trial. Plaintiff alleged that his commitment violated his free exercise of religion because he is a member of the ministry of Cannabis and Rastafari Inc. and uses marijuana for religious purposes. Subsequently plaintiff was released on his own recognizance. The court dismissed plaintiff's claim without prejudice, holding that before he can bring a claim for damages under 42 USC Sec. 1983, he must first exhaust all available state court remedies and then seek habeas corpus relief in federal court. Only if he is successful in a challenge to his confinement in one of these proceedings may he proceed with his damage claim.

Texas Welfare Workers Criticized For Treatment of FLDS Children

Yesterday's Salt Lake Tribune says that mental health professionals who were employed to care for the FLDS women and children after the April raid on their Eldorado, Texas ranch are critical of Texas Child Protective Services. Statements given by staff members to the board of Hill Country Community Mental Health and Mental Retardation Center say that the treatment of the women and children, and the conditions under which they were held, were harsh and unnecessary. The Tribune article has links to the full statements of the mental health workers regarding conditions in the shelter in which the women and chilren were held pending placement of the children in foster care. Melissa Rogers has additional coverage of the allegations on her blog.

Preachers' Suit Against Mississippi City Settled

The Alliance Defense fund announced Monday that a settlement has been reached in Wallace v. City of Wiggins, a federal lawsuit against the city of Wiggins, Mississippi and various of its officials on behalf of two Christian preachers who were threatened with arrest for carrying signs and engaging in religious speech on a public sidewalk using a microphone and amplification system. (See prior posting.) The settlement allows the the preachers, Shannon Wallace and Wesley Sewell, to preach on public sidewalks so long as no city ordinances are violated.

Muslim Woman's Suit Against Judge Dismissed On Procedural Grounds

In Detroit, Michigan on Monday, a federal district judge invoked unusual procedural grounds to dismiss a free exercise claim brought by a Muslim woman against a Michigan small claims court judge. Small Claims Judge Paul Paruk last October dismissed Ginnnah Muhammad's suit against a car rental company when Muhammad refused to remove her niqab (full face veil) before she testified. Muhammad then sued in federal court alleging that she was denied her free exercise rights and access to the courts because of her religion. (See prior posting.)

In Muhammad v. Paruk, (ED MI, May 12, 2008), the federal court relied primarily on language in the Declaratory Judgment Act giving it discretion on whether or not to issue a declaratory judgment. The court said:

[I]f Paruk has a valid, neutral and generally applicable policy of requiring witnesses to keep their faces visible while giving testimony, that policy would not violate Muhammad’s right to free exercise of her religion. Determining if Paruk has such a policy and, if he does, deciding whether it is valid, neutral and generally applicable would necessitate a detailed examination of how Paruk manages his court room as a state court judge. Conducting this type of review as a federal judge would undoubtably increase friction in the relationship between our state and federal courts.... [R]espect for the relationship between our state and federal courts weighs heavily against exercising jurisdiction over Muhammad’s declaratory judgment action for violation of her right to free exercise of her religion....

To establish a ... denial of access to the courts claim... could require me to determine whether Muhammad’s state court claim was "non-frivolous" ... and to review
whether Judge Paruk’s actions frustrated Muhammad’s litigation. This kind of review also threatens to increase the tension between our state and federal courts and weighs against exercising jurisdiction over Muhammad’s declaratory judgment action for denial of access to the courts.

The AP yesterday reported on the decision. [Thanks to How Appealing for posting the opinion.]

Indian Supreme Court Rejects Challenge To French Action Against Sikhs

India's Supreme Court has dismissed for lack of jurisdiction a claim brought by a Sikh organization, Singh Legal Foundation, challenging France's law that prohibits Sikhs from wearing turbans or other religious symbols in public places in France. Apparently the suit is directed at the French ban on religious symbols in public schools. (See prior posting.) Bombay News.net reported yesterday that the suit before India's Supreme Court claimed that it was the duty of the Indian government to protect the fundamental rights of Indian Sikhs living abroad. The court ruled, however, that the issue could only be raised in French courts, or in the international or EU courts. Also the court pointed out that the Indian government has already raised the issue with France through diplomatic channels.

9th Circuit Upholds School Dress Policy Against Speech and Religion Challenges

In Jacobs v. Clark County School District, (9th Cir., May 12, 2008), the U.S. 9the Circuit Court of Appeals, in a 2-1 decision, rejected a challenge to a Nevada school district's school uniform policy that precluded plaintiffs from wearing T-shirts with printed messages on them. At least one time this involved sanctions for wearing a T-shirt displaying a religious message. The majority found that the uniform policy was both viewpoint- and content-neutral, and need satisfy only an intermediate scrutiny standard. Here the policy furthered important governmental interests unrelated to the suppression of speech, and leaves open alternative channels of communication. The opinion also rejected the argument that the dress code compelled students to express a view in favor of uniformity. The majority additionally rejected plaintiff's free exercise of religion claim, finding that the uniform code was a neutral rule of general applicability.

Judge Thomas dissented arguing that the regulation was not viewpoint neutral since it permitted T-shirts with slogans supporting the school. He also argued that the government's purpose in imposing the uniform rule was not substantial enough to outweigh students' speech rights. Today's Las Vegas Review Journal reports on the decision.

Virginia County Will Offer Bible In History Course

Earlier this month, the Craig County, Virginia, School Board approved an elective high school course titled "The Bible in History and Literature." OurValley.org reports on the discussion of the proposal at the May 6 board meeting. Several students attending the meeting supported it, even though in 2005 a similar class was dropped for lack of student interest. Board member Dawna McDowell abstained from voting on the ground that there had not been enough time to inform the community about the proposal.

Cert Denied In O'Hare Expansion Challenge By Church

Yesterday the U.S. Supreme Court denied certiorari in St. John's United Church v. Chicago, IL, (Docket No. 07-1127) (Order List). In the case, the 7th Circuit had rejected a challenge to Chicago's use of eminent domain to take a church cemetery as part of the city's expansion of O'Hare Airport. The 7th Circuit found no free exercise violation in Illinois' amendment of its Religious Freedom Restoration Act to exclude from its provisions Chicago’s actions in relocating cemeteries in the O’Hare project. (See prior posting.) Yesterday's Chicago Tribune reports that two other challenges to the taking of the cemetery are still pending in the courts, including a federal Religious Freedom Restoration Act claim that is on appeal to the 7th Circuit.

Group Charges SFO Targets Sikhs For Turban Searches

The Sikh Coalition says that San Francisco's International Airport is profiling Sikhs for searches. According to yesterday's Contra Costa Times, the group charges that since a Transportation Safety Authority policy change last October (see prior posting), screeners in San Francisco are now routinely searching tubans of Sikh travelers. Apparently San Franciso airport security personnel are interpreting the policy regarding search of turbans differently than are security workers at other airports. As a result, some Sikhs now choolse alternative airports in the area for their flights.

Archbishop Tells Kansas Governor Not To Take Communion

Last Friday's Kansas City Star reports that Archbishop Joseph F. Naumann of the Archdiocese of Kansas City has told Kansas Governor Kathleen Sebelius that she should stop taking communion until she repudiates her support for abortion rights. In a column in The Leaven, the official newspaper of the Kansas City Diocese, Naumann indicated that his latest concern was the governor's April 21 veto of the Comprehensive Abortion Reform Act passed by the Kansas legislature. He wrote:

Since becoming archbishop, I have met with Governor Sebelius several times over many months to discuss with her the grave spiritual and moral consequences of her public actions by which she has cooperated in the procurement of abortions performed in Kansas.... I wrote the governor last August requesting that she refrain from presenting herself for reception of the Eucharist until she had acknowledged the error of her past positions, made a worthy sacramental confession and taken the necessary steps for amendment of her life which would include a public repudiation of her previous efforts and actions in support of laws and policies sanctioning abortion.

Recently, it came to my attention that the governor had received holy Communion at one of our parishes. I have written to her again, asking her to respect my previous request and not require from me any additional pastoral actions.

Louisiana School Has Seniors Vote On Graduation Prayer

Sunday's Shreveport Times reports that for the second year in a row, Ouachita Parish High School has had its graduating seniors vote on whether or not they wish to include a prayer as part of their graduation ceremony. By a nearly unanimous vote, the seniors opted for prayer. The school board says that its policy is consistent with with a statement issued in 2003 by the Department of Education in implementing the No Child Left Behind Act. DOE's letter and guidance say that any school receiving funds under the Elementary and Secondary Education Act must certify in writing that it has no policy that prevents or otherwise denies participation in constitutionally protected prayer in public schools. The ACLU disagrees with the school board's approach.

Algerian Court Fines Christian Convert For Carrying Unauthorized Religious Books

Compass Direct News reports that last Tuesday a court in Djilfa, Algeria imposed a fine of 300 Euros and a one year suspended prison sentence on a 33-year-old Muslim convert to Christianity who was charged with printing, storing and distributing illegal religious material. Charges were filed against the defendant after he was stopped at a police roadblock, and authorities found a Bible and several religious study texts in his luggage. He was also carrying a computer printer. Apparently during defendant's 5-day detention, authorities tried to convince him to convert back to Islam. Since January, at least five Christians from Tiaret have been detained or tried for their religious activities.

Texas Bigamy Prosecution Wll Test Strengthened Law

For the first time since the Texas prohibition on bigamy (Penal Code, title 6, Sec. 25.01) was strengthened by the legislature in 2005, a prosecution is about to take place. Sunday's Dallas Morning News reports that in February, 73-year old House of Yahweh prophet Yisrayl "Buffalo Bill" Hawkins was indicted on four counts of promoting bigamy. In addition, sect elder Yedidiyah Hawkins has been charged with sexual assault of his 14-year-old stepdaughter who authorities say he was planning to marry. Hawkins secretive sect lives on a compound of hundreds of acres near the town of Eula in Callahan County, Texas. The House of Yahweh sends its apocalyptic message to the world over satellite broadcasts, radio and the Internet.

Recent Articles and Book of Interest

From SSRN:

• Donald R. Davis, Maxims & Precedent in Classical Hindu Law, (Indologica Taurinensia, Vol. 33, pp. 33-55, 2007).
• Eric G. Andersen, Protecting Religious Liberty Through the Establishment Clause: The Case of the United Effort Plan Trust Litigation, (U Iowa Legal Studies Research Paper No. 08-11, May 8, 2008).
• Craig A. Stern & Gregory M. Jones, The Coherence of Natural Inalienable Rights, (2008).
• Haider Ala Hamoudi, Baghdad Booksellers, Basra Carpet Merchants, and the Law of God and Man: Legal Pluralism and the Contemporary Muslim Experience, (U. of Pittsburgh Legal Studies Research Paper No. 2008-14, May 5, 2008).

From SmartCILP:

• Steven D. Smith, Our Agnostic Constitution, 83 New York University Law Review 120-166 (2008).
• Symposium on Religion, Religious Pluralism, and the Rule of Law. Contents: Introduction by Mark C. Modak-Truran; articles by Larry Cata Backer, Scott C. Idleman, Robin W. Lovin, Michael Novak, Jana Novak, Steven D. Smith and Mark C. Modak-Truran. 27 Missippi College Law Review 1-233 (2007-2008).

Journal of Church & State, Vol 50, No. 1, Winter 2008, has recently been published.

Recent Book:

• Alan Brownstein, Establishment of Religion Clause, (Prometheus Books, 1st American Paperback Ed. Dec. 31, 2007).

Frankenmuth Resident Gives Up On Challenge To Cross On City Shield

Frankenmuth, Michigan resident Lloyd Clark says he is giving up his effort to require the city to remove a Lutheran cross that appears on the city shield. (See prior posting.) According to NBC25 News, Clark made his decision after family and friends told him they were embarrassed by his efforts. Ed Brayton has posted a lengthy report on last Tuesday's Frankenmuth City Council meeting at which the mayor said that that city government was firmly committed to protecting the current version of the shield.

Sri Lankan Buddhists Protest Discriminatory Electric Rates For Temples

In Sri Lanka, Buddhist clergy are calling the country's new electric rates religious discrimination. Colombo's Sunday Times reprints a statement from Ven. Galaboda Gnanissara Thera, head of Colombo’s Gangaramaya Temple who says that the Ceylon Electricity Board has adopted a new rate schedule "that is aimed at a closure of all charitable institutions and places of worship. The new bill for these places exceeds that charged for hotels." The statement calls on all Buddhist places of worship to protest the new rates by using oil lamps instead of electricity on Vesak Poya day (May 19-20).

FLDS Advocate Asks Bush To Intercede

Willie Jessop, head of a group called Mothers and Children of YFZ, has written a letter dated May 10 (full text) to President George W. Bush. The letter has been posted on the "Captive FLDS Children" website. The letter begins:

We appeal to you, as President of the United States of America and Leader of the Free World, to intercede in behalf of an American community which has been invaded and devastated by an armed militant force. Mr. President, it does not require a foreign country to commit terrorist acts on American soil. Terrorist acts can be committed by federal, local, and private entities that are operating under the guise of “protecting the public.”

Near the end of his 10-page letter, Jessop says:

It has been customary for a President to visit the site of a disaster of this magnitude where so many innocent people are involved.... We personally invite you, First Lady Laura Bush, and members of your staff to visit the YFZ community and witness firsthand the site of these gross violations of human rights that have occurred in your peaceful neighboring west-Texas community. Reunite these children with their loving parents, and return families to their homes!

We call upon you to ... hold accountable those who perpetrated these acts of terror and now are determined to save the state from embarrassment by selectively prosecuting members of the FLDS faith.

Deseret News says the letter was hand delivered to President Bush's staff yesterday near the Bush ranch in Texas where the President was attending the wedding of his daughter Jenna.

1990's Actions By Castro Helped Revive Cuban Jewish Community

Cox News Service reports today that in Cuba, actions taken by Fidel Castro in the 1990's have encouraged revival of Cuba's Jewish community. Most of the island's Jews fled in the 1950's, and the community was once down to about 800. It has now grown to 1500. The country has 3 synagogues and a Jewish community center, though as yet no full-time rabbi. After Castro in the 1990's eased the government's opposition to organized religion, Jewish leaders began to seek out Cubans with Jewish roots, some of who were no longer formally Jews because of intermarriages in their families. Several dozen Cubans with such roots have formally converted back to Judaism.

Recent Prisoner Free Exercise Litigation

In Massingill v. Livingston, (5th Cir., May 8, 2008), the U.S. 5th Circuit Court of Appeals upheld a trial court's rejection of free exercise and RLUIPA claims by a prisoner who was a member of the Israyl Identity faith. Plaintiff had challenged the prison's grooming requirements, wanted to be kept separate from prisoners of other races, and wanted his Saturday meals delivered on Friday. In his appeal, plaintiff unsuccessfully raised several evidentiary issues. (See prior related posting.)

In Blast v. Fischer, 2008 U.S. Dist. LEXIS 36318, (WD NY, May 5, 2008), a New York federal magistrate judge refused plaintiff prisoner's request to appoint an expert witness to testify in his RLUIPA case about the Santeria religion and Western Cultural African Yoruba. The court said that the main issue is the sincerity of plaintiff's beliefs, not the objective importance of a particular practice within his faith system.

In El-Tabech v. Clarke, 2008 U.S. Dist. LEXIS 36793, (D NE, May 5, 2008), a Nebraska federal district court awarded $196,605 in attorneys' fees and $8,380 in costs against defendants in a lawsuit in which a Muslim prisoner won his claim to receive a kosher diet, and his request that the prayer schedule be posted so that guards are aware of it. In awarding the fees, the court said: "Significant and complicated constitutional issues and statutory issues were adjudicated and El-Tabech vindicated not only his own rights, but those of similarly situated prisoners." (See prior related posting.)

In Lakhumna v. Friel, 2008 U.S. Dist. LEXIS 37859, (D UT, May 8, 2008), a Utah federal district judge permitted a prisoner to proceed against most of his named defendants in a lawsuit claiming that authorities failed to accommodate his Hindu dietary requirements, and that Hindu inmates are not given the same access to the prison chapel as are others.

Korean Court Rejcts Damage Claim By Expelled High Schooler

In Korea, the Seoul High Court has reversed a trial court's award of damages to a student who, in 2004, was expelled from his Christian high school after he refused to attend required chapel services. Friday's Korea Times reports that Kang We-suck announced his refusal to attend chapel at Daegwang High School though an announcement over the school's loudspeakers and at a one-person rally in front of the school. Kang claimed that the school infringed his freedom of religion and inflicted mental suffering on him by expelling him. The High Court disagreed.

Romney Addresses Importance of Religious Freedom To Non-Believers

On Friday, former presidential candidate Gov. Mitt Romney and his wife Ann were awarded the Becket Fund's Canterbury Medal for "Courage in the Defense of Religious Liberty." (Press release). In his acceptance speech (full transcript), Romney reflected on his now-famous speech about religious liberty and his religious beliefs delivered last December during his unsuccessful campaign for the Republican presidential nomination. (See prior posting.) In one portion of his address at the Becket Fund dinner, Romney responded to criticism that he had not mentioned the rights of non-believers in December. Romney told the Becket Fund audience:

upon reflection, I realized that while I could defend their absence from my address, I had missed an opportunity…an opportunity to clearly assert the following: non-believers have just as great a stake as believers in defending religious liberty.

If a society takes it upon itself to prescribe and proscribe certain streams of belief – to prohibit certain less-favored strains of conscience – it may be the non-believer who is among the first to be condemned. A coercive monopoly of belief threatens everyone, whether we are talking about those who search the philosophies of men or follow the words of God.

We are all in this together. Religious liberty and liberality of thought flow from the common conviction that it is freedom, not coercion, that exalts the individual just as it raises up the nation.

Romney also strongly defended his December statement that "freedom requires religion." Saturday's Salt Lake Tribune reports on the Becket fund speech.

Court says RLUIPA Applies To Zoning Limits On 12-Step Program

Friday's Prescott (AZ) Daily Courier reports on an unusual RLUIPA decision by an Arizona Superior Court judge in Yavapai County. The case involves attempts by an AA 12-step program, known as Safe Harbor, to operate out of a neighborhood location in north Prescott. The city claimed that AA needed a special use permit to operate. In rejecting that claim, the court, noting AA's spiritual nature, applied the federal Religious Land Use and Institutionalized Persons Act. It held that "the city's effort to 'zone' the AA members of Safe Harbor out of the property is a land-use regulation which imposes a substantial burden on the religious exercise of the AA members of Safe Harbor and of AA..."

Next Steps In FLDS Custody Proceedings Described

Yesterday's Ft. Worth Star-Telegram reports on what to expect at the next round of hearings, scheduled to begin May 19, in the cases of 464 children taken into state custody from the FLDS compound in Eldorado, Texas. In simultaneous hearings in 5 San Angelo courtrooms, children will be grouped by family so that siblings will have hearings together. The hearings are likely to continue the children in state custody while parents work on "service plans" to meet Child Protective Service guidelines for return of their children. The court will attempt to to complete all hearings by June 5, the 60-day deadline as required by law.

Faith Group Sues Over California Limits On Its Use of Park To Feed Homeless

In Orange County, California, an interfaith religious group, Welcome INN (Interfaith Needs Network), has filed a federal lawsuit challenging the constitutionality of the state's limits on public assemblies and demonstrations in state parks. According to a press release by the ACLU, when the group attempted to set up supplies in a Doheny State Park picnic area in order to offer a meal to the homeless, a park ranger told them to disperse, citing California Administrative Code, Title 14, Sec. 4321 that requires permission of the Department of Parks and Recreation in order to hold an assembly there. This action came after the group, on two previous days, used the park to conduct a prayer, serve donated food to about 20 homeless people, distribute Bibles and refer those who requested it to local social service agencies. The complaint (full text) in Welcome INN, Inc. v. Coleman, (CD CA, filed 5/7/08) alleges that the permit provision is an unconstitutional prior restraint on speech in a traditional public forum, and its enforcement against the group infringes their speech, associational and free exercise rights.

Today's Los Angeles Times, reporting on the case, quotes ACLU attorney Hector Villagra who compares the gathering of homeless at the state beach to picnics and barbecues that are allowed there. Park officials say this is different because it is an organized feeding event that requires a special use permit, like all other formal gatherings.

Group Seeking To Set Up Test Case On Tax Code Non-Profit Limits

Today's Wall Street Journal reports that Alliance Defense Fund is attempting to create a constitutional test case to challenge the tax code limits on church involvement in political campaigns. It is seeking 40 to 50 houses of worship to take part in a protest on Sept. 28. ADF is asking clergy to preach sermons on that day about candidates in the November election. Under the Internal Revenue Code, churches and other charitable groups can be fined or lose their non-profit tax status if they endorse or oppose political candidates.

Oregon Supreme Court Clarifies Standard For Religious Discrimination

In Nakashima v. Oregon State Board of Education, (OR Sup. Ct., May 8, 2008), the Oregon Supreme Court clarified the test that is to be used in determining whether a public school program is "fair in form but discriminatory in operation" so that it violates Oregon's anti-discrimination statutes. At issue was an attempt by Portland Adventist Academy (PAA) to get the Oregon School Activities Association to alter the schedule of the 2A State High School Boys' Basketball Tournament. PAA requested the change so that its basketball team would not be required to compete on their Sabbath. The court remanded the case to the Oregon State Board of Education for it to determine whether the challenged scheduling policy that adversely impacts PAA is "reasonably necessary" to the successful administration of the Tournament. The AP yesterday reported on the decision. (See prior related posting.)

10th Circuit Upholds Bald Eagle Protection Against RFRA Challenge

In United States v. Friday, (10th Cir., May 8, 2008), the U.S. 10th Circuit Court of Appeals rejected a challenge under the Religious Freedom Restoration Act to the government's enforcement of the Bald and Golden Eagle Protection Act ("Eagle Act"). The case involved the prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, for killing a bald eagle so he could use it in his tribe's Sun Dance. Friday had never applied for a permit under the Eagle Act. The district court had held that the government's permit process was so maladministered that it would have been futile for Friday to apply for a permit. The Court of Appeals disagreed with this finding. It went on to hold that "the Eagle Act and its regulations are the least restrictive means of pursuing the government’s compelling interest in preserving the bald eagle." The AP yesterday reported on the decision. (See prior related posting.)

UPDATE: The May 13 San Diego Union-Tribune follows up on the decision with a mixed reaction to it from Sarah Krakoff, an associate professor of law at the University of Colorado. It also reports that Winslow Friday's attorney is considering seeking en banc review of the 3-judge panel's decision.

Two Schools Want Exemption From Quebec's Religious Culture Course

As previously reported, Quebec's Education Department is requiring, starting next fall, all public and private religious schools to offer a new course in Ethics and Religious Culture. Yesterday's Montreal Gazette reported that two schools have asked for an exemption from the requirement. Loyola High School, a Jesuit institution in Notre Dame de Grâce, told the Education Department that its students are already "strongly formed" in the key values to be taught in the new course. The other school seeking an exemption is Emmanuel Christian School in Dollard des Ormeaux. The Education Department says that the new course is intended to teach religious culture so students will be able to understand the importance of places of worship, beliefs and religious institutions in the province.

Feds Appoint Prosecutor To Focus On Polygamy Issues

Today's Salt Lake Tribune reports that the U.S. Justice Department has appointed a senior, career prosecutor to work with Utah, Arizona and Nevada to combat polygamy related crimes. This disclosure came in letters that Nevada Sen. Harry Reid sent this week to the attorneys general of Utah and Arizona. Today's Toronto Globe and Mail says that the U.S. investigation may extend to combating the so-called "polygamy underground railway" across the Canada-U.S. border through which young women are sent to marry older men. Women are sent between FLDS communities in British Columbia, Utah and Arizona. This action by the Justice Department may be the first step toward appointing a special task force. Last week, the Deseret News reported that Sen. Reid had long been pushing for the Justice Department to take action. Utah Attorney General Mark Shurtleff, while welcoming federal involvement, took issue with Reid's criticism of Utah's law enforcement. Shurtleff said Utah has done much to combat polygamy.

Meanwhile yesterday in St. George, Utah, some 200 people attended the annual conference presented by the Utah-Arizona Safety Net Committee to hear presentations by members of polygamous communities, news media, social service providers and law enforcement. Yesterday's Salt Lake Tribune quotes conference participant Anne Wilde from the "fundamentalist Mormon" advocacy group, Principle Voices, who said that fundamentalist Mormons represent a wide diversity of beliefs, and should not all be lumped together with the FLDS.

Malaysian Sharia Court Agrees To Cancel Woman's Prior Conversion To Islam

AFP today describes as "rare" a decision handed down in Malaysia by Penang Sharia Court judge Othman Ibrahim. He permitted a Buddhist woman who had converted to Islam to reconvert to Buddhism. Islamic courts usually do not permit renunciations of Islam, but here the court said that Siti Fatimah only converted in order to be able to marry a Muslim man. She never practised Islam. Now that her husband has left her the judge said he had no choice but to order her original conversion certificate nullified since she had continued to practice Buddhism anyway. The woman now still has to convince authorities to change her identity card so she will no longer be classified as a Muslim on it.

Christian Student Group Sues to Challenge University Speech Code

On Wednesday, a student group, the Christian Fellowship, filed suit in federal court against Pennsylvania's Shippensburg University challenging university rules that plaintiff claims chills free speech and infringes its free exercise of religion. The complaint (full text) in Christian Fellowship of Shippensburg University of Pennsylvania v. Rudd, (MD PA, filed 5/7/08) alleges that "Christian Fellowship is a religious expressive student organization whose members hold and seek to advance Biblically-based opinions and beliefs regarding issues of race, gender, politics, and religion that may be objectionable or offensive to other students and sanctionable under applicable University speech codes." According to a release by the Alliance Defense Fund, a similar 2004 lawsuit was settled when the University agreed to revoke challenged provision in its speech code, but since then it has re-enacted many of the same policies. Today's Hagerstown (MD) Herald-Mail reports on the lawsuit.

Evangelical Manifesto Released Urging A "Civil Public Square"

Yesterday in a Washington, DC press conference, over 70 religious leaders endorsed a document titled An Evangelical Manifesto (full text, summary). Here is a small part of what it had to say about the place of Evangelicals in public life:

[W]e repudiate two equal and opposite errors into which many Christians have fallen. One error is to privatize faith, applying it to the personal and spiritual realm only.... The other error, made by both the religious left and the religious right, is to politicize faith, using faith to express essentially political points that have lost touch with biblical truth. That way faith loses its independence, Christians become the "useful idiots" for one political party or another, and the Christian faith becomes an ideology. Christian beliefs become the weapons of political factions....

[W]e repudiate the two extremes that define the present culture wars in the United States..... We are committed to a civil public square – a vision of public life in which citizens of all faiths are free to enter and engage the public square on the basis of their faith, but within a framework of what is agreed to be just and free for other faiths as well....

[W]e are concerned that a generation of culture warring ... has created a powerful backlash against all religion in public life among many educated people.... [W]e are concerned that globalization and the emerging global public square have no matching vision of how to live with our deepest differences on the global stage.... [W]e warn of the danger of a two-tier global public square. This is a model of public life which reserves the top tier for cosmopolitan secular liberals, and the lower tier for local religious believers.

The Associated Press, reported on the document, pointing out that a number of Christian religious leaders on the political right do not support it. Americans United for Separation of Church and State gave the Manifesto qualified praise, or, as it said, it gave it "one amen". More information on the Manifesto, including a lengthy Study Guide, is available on the Evangelical Manifesto website.

Religious Monuments Case Delays Army Memorial To Plane Crash Victims

June 14 is the 65th anniversary of the World War II "Bakers Creek" plane crash in Australia that killed 40 U.S. troops. Families of the soldiers, veterans' organizations, and others have contributed money for a monument to the soldiers that they want the Army to place at Ft. Myer, near Arlington National Cemetery in Virginia. Scripps Howard News Service yesterday reported that the Army however is holding off on accepting the monument because of a pending Supreme Court case on religious monuments. In Pleasant Grove City v. Summum, the Supreme Court will decide whether a city created a "public forum" open to others as well by accepting a donation of a 10 Commandments monument put up in a city park. (See prior posting.)

In reporting to Congress last week, an Army spokesman wrote: "Due to the ramifications that this case may have on the Army's acceptance of the Bakers Creek Memorial or any other monument funded by private funds, the Army will await the Supreme Court's decision to assess its options." Robert Cutler, executive director of the Bakers Creek Memorial Association, suggested a solution-- have the Army buy the memorial for a nominal amount so it is not "donated". Meanwhile the memorial remains temporarily at the Australian Embassy in Washington. (A posting at Texomas carries a photo of the memorial.)

McCain Speaks Out On International Religious Freedom

Yesterday, Republican presidential candidate John McCain spoke at Oakland University in Rochester, Michigan on "his vision for defending the freedom and dignity of the world's vulnerable." In his speech (full text) he had this to say about religious freedom:

There is no right more fundamental to a free society than the free practice of religion. Behind walls of prisons and persecuted before our very eyes in places like China, Iran, Burma, Sudan, North Korea and Saudi Arabia are tens-of-thousands of people whose only crime is to worship God in their own way. No society that denies religious freedom can ever rightly claim to be good in some other way. And no person can ever be true to any faith that believes in the dignity of all human life if they do not act out of concern for those whose dignity is assailed because of their faith. As President, I intend to make religious freedom a subject of great importance for the United States in our relations with other nations.

In the speech he also focused on the evils of human trafficking and use of the Internet by child predators. CNN reported on the speech.

San Angelo Mayor Writes of Logistical Challenges After FLDS Ranch Raid

Scripps Howard News Service yesterday carried a piece by J.W. Lown, the 31-year old mayor of San Angelo, Texas, the town located some 45 miles north of the FLDS Ranch that was raided by authorities last month. Lown gives a candid account of how he dealt with the demands placed on his city for space to house the over 400 children taken into state custody along with many of their mothers. Lown also looks at the deluge of media that appeared, saying "Every media outlet complimented me and the city of San Angelo for the Port-A-Potties and refreshments we delivered." Lown concluded: "Though our role as 'host' is drawing to an end, you will still see plenty of San Angelo on TV. All those mothers you've seen strolling up courthouse steps in their pastel prairie dresses? That's the Tom Green County Courthouse in San Angelo. And their day in court isn't over."

Kansas High Court Upholds Citizen Grand Jury Law Used By Abortion Foes

Yesterday in Tiller v. Corrigan, (KA Sup. Ct., May 6, 2008), the Kansas Supreme Court upheld provisions of K.S.A. 22-3001 providing for citizens to petition for the empanelling of a grand jury. The court held that the provisions are not unconstitutional on their face. The law, used in Kansas by by abortion opponents to obtain investigations of abortion clinics, was challenged on separation of powers grounds. In upholding the law, the unanimous decision went on to say that the court in which the citizen petition is filed must review the validity of the petition and oversee the grand jury process. The supreme court also concluded that a citizen-empanelled grand jury has authority to issue subpoenas for documents, but the supervising court must assure that the grand jury is not on arbitrary fishing expedition and that the subpoena targets were not selected out of malice or with intent to harass. Finally, the supreme court said that when valid subpoenas are issued for patient records, a number of steps must be taken to protect patient privacy. Yesterday's Kansas City Star reported on the decision. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

Maryland High Court Refuses To Grant Comity To Pakistani Talaq Divorce

In Aleem v. Aleem, (Ct. App. Md., May 6, 2008), the Maryland Court of Appeals (the state's highest court) refused to recognize a talaq divorce obtained under the laws of Pakistan (Mulsim Family Laws Ordinance 1961) by a husband who, with his wife, resided in Maryland. The parties, married in Pakistan in 1980, resided in the U.S. on diplomatic visas.

After Farah Aleem filed for divorce in a Maryland court, her husband, Irfan Aleem, without notice to Farah, went to the Pakistani embassy in Washington and performed talaq by executing a written document that recited "I divorce thee" three times. Under Pakistani law, unless agreed otherwise, the wife has no claim to property owned by her husband on the date of divorce. In her Maryland divorce action, Farah sought to have Irfan's World Bank pension and other assets declared marital property. Pointing to a provision in Maryland's constitution (Declaration of Rights, Art. 46) that assures equal rights to men and women, the court reasoned that:

the enforceability of a foreign talaq divorce provision, such as that presented here, in the courts of Maryland, where only the male, i.e., husband, has an independent right to utilize talaq and the wife may utilize it only with the husband’s permission, is contrary to Maryland’s constitutional provisions....

The court concluded that:

talaq divorce of countries applying Islamic law, unless substantially modified, is contrary to the public policy of this state... where, in the absence of valid agreements otherwise, ... marital property is subject to fair and equitable division.... Additionally, a procedure that permits a man (and him only unless he agrees otherwise) to evade a divorce action begun in this State by rushing to the embassy of a country recognizing talaq and ... summarily terminate the marriage and deprive his wife of marital property, confers insufficient due process to his wife. Accordingly, for this additional reason the courts of Maryland shall not recognize the talaq divorce performed here.

The court observed in an introductory footnote: "we address Islamic law only to the extent it is also the civil law of a country. The viability of Islamic law as a religious canon is not intended to be affected." Today's Baltimore Sun, reporting on the decision, notes that the assets involved in the case total $2 million.

Montreal Cabbie Files Human Rights Complaint Over Religious Items

Today's Montreal Gazette reports that Montreal cabbie Arieh Perecowicz has filed a complaint with the Quebec Human Rights Commission challenging a Montreal Taxi Bureau bylaw that bans any "object or inscription that is not required for the taxi to be in service." Perecowicz, who is Jewish, has two mezuzahs embedded in the posts between the front and rear seats of his cab. He also has photos of his daughter and the founder of the Chabad Lubavitch movement as well as a Remembrance Day poppy in the taxi. His complaint asks for $5,000 in damages, alleging that the Montreal bylaw infringes his freedom of expression as guaranteed by the Quebec Charter of Human Rights and Freedoms. Next month, Perecowicz will ask a Montreal municipal court judge to postpone ruling on his four citations-- each fining him $191-- for violating the Taxi Bureau bylaw until the Human Rights Commission rules in his case. Perecowicz suggests that the fines are related to his appearance on television with other drivers complaining that the Taxi Bureau was not enforcing its rules against unlicensed cabs.

Ohio School Is Divided Over Support Of Science Teacher

Yesterday's Mt. Vernon (OH) News reports on the peer pressure at Mt. Vernon Middle School for students to support controversial science teacher John Freshwater. As reported previously, Freshwater is defying a directive that he remove a Bible that he keeps on his desk in view of his students. The community has become sharply divided over support of the teacher. Parent Christine Hamilton says her two sons have been harassed because they are friends with the boy whose parents filed the complaint against Freshwater. Meanwhile, a separate investigation is under way of an minor injury suffered by a student during Freshwater's science class. The injury was apparently caused by some kind of electrostatic device. (Mt. Vernon News). [Thanks to Scott Mange for the lead.]

Israel Bible Quiz Finalist Is A Messianic, Stirring Intense Controversy

In Israel, the state-run International Bible Quiz, sponsored jointly by the army and the Education Ministry, is a highlight of each Independence Day celebration. Jewish Agency representatives in 30 countries organize regional competitions to select teenagers who will take part in the final rounds. The Forward yesterday reported that as Israel's 60th birthday approaches on Thursday, an intense battle has broken out over whether 17-year old Bat-El Levy, one of Israel's four finalists, should be permitted to continue to compete. Contest rules limit participation to those who are Jewish. Levy, it turns out, is from a messianic Jewish family. Messianics are considered to be Christians by most Jews. However the teenager is listed as Jewish in her state identification papers. Also her mother is Jewish, so she meets the strict halachic (Jewish Law) definition of who is a Jew. Attorneys for the Bible Quiz say there is no basis to challenge her Jewishness.

Messianics claim they are subject to constant prejudice in Israel. They say that the anti-missionary organization, Yad L'Achim, is particularly attempting to marginalize them. After Bible Quiz authorities refused to disqualify Levy, a dozen influential rabbis issued a statement calling for contestants and spectators to boycott the Bible contest. In a related development, last month 12 Messianics whose fathers were Jewish, but whose mothers were not, were granted Israeli citizenship under the Law of Return. (See prior posting.)

Tennessee AG OK's Bible Park Financing Under State, But Not Federal, Law

Tennessee's Attorney General, Robert Cooper, issued an opinion yesterday ruling that Tennessee law permits the use of public funds to support the development of Bible Park USA, but left open the question of whether public funding for the theme park would violate the Establishment Clause of the federal constitution. Yesterday's Murfreesboro Daily News Journal and Legal Newsline report that Bible Park USA developers and Rutherford County Mayor Ernest Burgess have proposed a possible tax-increment financing arrangement that would allocate most of the property tax revenue from the park and a 5% privilege tax on sales inside the park to pay down bonds issued to finance construction. (See prior related posting.)

Canadian Court Says Diocese and Congregations Must Share Properties

In Canada, a number of parishes, upset over issues such as same-sex unions, have voted to break away from the Anglican Church of Canada. Yesterday's Toronto Globe and Mail reports on an Ontario Superior Court ruling issued on Monday holding that three break-away parishes and the diocese must share possession of church properties until the court makes a final ruling on who is entitled to ownership. The three parishes involved are St. George's Anglican Church in Lowville, St. Hilda's Anglican Church in Oakville, and the Church of Good Shepherd in St. Catharines. Some lawyers say that a final decision on ownership of these properties could be years away.

China Objects To USCIRF's Report

China yesterday strongly criticized the annual report issued earlier this week by the U.S. Commission on International Religious Freedom. The report lists China as one of the eleven most oppressive "countries of particular concern". According to Xinhua, Chinese Foreign Ministry spokesman Qin Gang yesterday said:

[T]he Chinese government protects its citizens' freedom of religious belief according to the laws and Chinese citizens ... enjoy full freedom of religious belief protected by law. We advise the USCIRF to seriously examine the United States' own problems and stop interfering in other countries' internal affairs under the pretext of religion....

Liberty Counsel Launching Campaign To Support Graduation Prayer

Liberty Counsel today announced the launch of its annual "Friend or Foe" Graduation Prayer Campaign. It says that its goal is to "ensure that prayer and religious viewpoints are not suppressed during graduation ceremonies." It has again made available online its "Legal Memorandum on Graduation Prayers in Public Schools". The memo outlines the possibility of prayers being offered by students or speakers on their own initiative where they have been chosen to speak on the basis of religiously neutral criteria. It also reviews the possibility of privately-sponsored graduation ceremonies or baccalaureate services. Liberty Counsel is also more generally encouraging students to wear its red "I Will Pray" wristbands to school.

Indian, Pakistani Muftis Argue Over Muslim Compliance With Indian Law

Wednesday's Pakistan Daily Times reports on competing declarations by Muslim clerics on the propriety of Muslims in India slaughtering cows and eating beef. Mufti Habibur Rehman, head of India’s large Darul Uloom Deoband madrassa, told a resident of the Indian town of Muzaffarnagar that while eating beef is legal under Islamic law, it is prohibited by Indian law because of the beliefs of the predomninant Hindu population. Therefore, Rehman said, for Muslims in India, it is not right to secretly slaughter and eat the meat of cows. Pakistan's Mufti Abdul Rehman Al Rehmani (head of Darul Ifta wa Al-Qazzath of the Jamaat-ud-Dawa Pakistan) however disagrees. He argues that telling Indian Muslims to comply with Indian law in this regard will encourage them to accept Hindu beliefs. He says that if democratic India's minorities fear to follow their own religions, "then the peace of the whole world will be in great danger."

West Virginia Town Moves From Lord's Prayer To Moment of Silence

The Charles Town, West Virginia City Council on Monday night voted 7-1 to open its meetings with a moment of silence instead of the Lord's Prayer which it had recited for decades before city council meetings. The move came after a Jewish resident of the city raised questions about use of the Lord's Prayer. Today's Martinsburg (WV) Journal reports that council member Geraldine Willingham was the only dissenting vote after two other members who earlier voted to keep the Lord's Prayer went along with the moment of silence proposal. Willingham complained that the change was made because of "one negative person".

US Rights Agency Hears Witnesses On Religious Discrimination In Prisons

The U.S. Civil Rights Commission has recently posted online the full transcript of its Feb. 8 Briefing on Religious Discrimination In Prisons. The first panel focused on Free Exercise of Inmates' Religious Rights vs. Prison Security. Speakers were: Chaplain Joseph Pryor (Federal Bureau of Prisons); Steven T. McFarland (Justice Department's Task Force for Faith-Based and Community Initiatives); Carol Atkins (Warden of Maryland Correctional Institution); Frank Cilluffo (Director of GWU's Homeland Security Policy Institute); and Gregory Saathoff (Univ. Virginia's Critical Incident Analysis Group).

The second panel covered Free Exercise of Inmates' Religious Rights vs. Church State Separation. Speakers were Patrick Nolan (Justice Fellowship of Chuck Colson's Prison Fellowship Ministries); Lane Dilg (ACLU); Imam Abuquadir Al-Amin (Society of American Muslims); Alex Luchenitser (Americans United for Separation of Church and State); Chaplain Gary Friedman (B'nai B'rith International Pastoral Care Agency for Jewish Prisoners and Their Families); and Reverend Patrick McCollum (National Correctional and Chaplaincy Directors Association).

US Civil Rights Commission Chairman Gerald Reynolds said: "The testimony and materials gathered as a part of this briefing will become part of the 2008 Statutory Report enforcing prohibitions of religious discrimination in prisons."

Paper Reports On Clergy Clash In Break-Away Episcopal Church

While numerous reports have chronicled the progress of litigation between the Episcopal Church and break-away congregations wishing to affiliate with more conservative Anglican convocations, Saturday's Hartford Courant furnishes a different perspective. In an article titled Episcopalian Split Comes Down To Locked Groton Church, the paper reports on the experience of Rev. David Cannon who was appointed by the Episcopal Church to take over leadership of Bishop Seabury Church in Groton, CT. Rev. Ronald Gauss, the church's existing leader, whose move to the Convocation of Anglican Churches in North America is supported by church members, refused to turn over church keys or its books to Rev. Cannon. This, like numerous other cases, is lkely to end up in litigation over who owns the church property.

Recent Prisoner Free Exercise Cases

In Terrero v. United States, (11th Cir., April 29, 2008), the U.S. 11th Circuit Court of Appeals rejected claims by a Jewish prisoner that his rights under the 1st Amendment and RFRA were violated when federal prison officials failed to provide him with the means to celebrate the festival of Sukkot, failed to provide him with challah bread instead of matzah crackers, and failed to contract with a rabbi to provide religious services. The Columbus (GA) Ledger-Enquirer reported on the decision last week.

In Starr v. Cox, 2008 U.S. Dist. LEXIS 34708 (D NH, April 28, 2008), a New Hampshire federal district court dismissed a prisoner's RLUIPA and 1st Amendment claims. It held that even though plaintiff raised a question of material fact as to whether the practice of Tai Chi, separate from Taoism, is part of a system of religious belief, and as to whether his beliefs are sincerely held, plaintiff failed to show that his religious exercise was substantially burdened. Even if they were, defendants demonstrated that the prison's Tai Chi restrictions serve a compelling state interest using the least restrictive means.

In Rhodes v. Alameida, 2008 U.S. Dist. LEXIS 35764 (ED CA, May 1, 2008), a California federal magistrate judge rejected free exercise, equal protection and due process challenges by a Native American inmate to the prison's confiscation and disposal of certain contraband property that plaintiff claimed had religious or spiritual significance to him.

Israel Funds Construction of Reform Synagogue For First Time

The Jerusalem Post reports on yesterday's scheduled ground breaking for the first Reform synagogue funded by the Israeli government. Until now, only Orthodox synagogues could receive state funds. The Conservative and Reform Jewish movements are not officially recognized by Israel's rabbinate. In the past some municipalities had set aside land for non-Orthodox synagogues, but this is the first funding for construction. Money for the prefab that will house Modi'in's Yozma Reform Congregation came as the result of a compromise after a lawsuit was filed against Modi'in's Construction and Housing Ministry by the Israel Religious Action Center. It claimed that the Ministry's planned allocation of state funds for religious institutions was discriminatory. In the settlement, IRAC agreed to drop the lawsuit and construction and housing minister Isaac Herzog agreed to furnish the new building. IRAC says it doubts whether funds for additional Reform synagogues will be forthcoming because recently the Religious Affairs Ministry was reinstituted and its head is a member of the Orthodox Shas party. [Thanks to Religion and State In Israel for the lead.]

State Department Suggesting Diplomats Change Language In Describing Islamic Terrorists

The AP reported last week on a memo titled Words That Work and Words That Don't: A Guide for Counterterrorism Communication that was originally prepared in March by the Extremist Messaging Branch at the National Counter Terrorism Center and was approved for diplomatic use last month by the State Department. It grows out recommendations from American Muslim leaders on how to describe terrorists who invoke Islamic theology in justifying their attacks. Those recommendations built on three premises: "(1) We should not demonize all Muslim or Islam; (2) Because the terrorists themselves use theology and religious terms to justify both their means and ends, the terms we use must be accurate and descriptive; and (3) Our words should be strategic; we must be conscious of history, culture, and context. In an era where a statement can cross continents in a manner of seconds, it is essential that officials consider how terms translate: and how they will resonate with a variety of audiences." The Investigative Project on Terrorism on Friday published an opinion piece by Steve Emerson who is critical of the memos.

Ohio Supreme Court Upholds Property Tax Exemption For Episcopal School Property

In Episcopal School of Cincinnati v. Levin, (Ohio Sup. Ct., March 12, 2008), the Ohio Supreme Court held that the Episcopal Diocese of Southern Ohio was entitled to a property tax exemption for the year 2001 for property it acquired to use for a church-affiliated inner-city school so long as on Jan. 1 of that year it intended to use the property for tax exempt purposes. The exemption for the year was not lost even though later in the year before the application for exemption was filed it appeared that the Diocese would likely not be able to complete the financial arrangements to develop the school. The property was sold off to a for-profit entity late in 2002. Justice Lanzinger dissented. A Supreme Court press release summarizes the decision.

Catholic Paper In Malaysia Wins Initial Court Victory

In Malaysia, the Catholic newspaper The Herald has won an initial victory in its challenge to a government claim that it may not use "Allah" as a synonym for God in its Malay-language reporting. Today's International Herald Tribune reports that High Court Judge Lau Bee Lan rejected the prosecutor's claim that the challenge is frivolous. The government argues that use of "Allah" by Christians might confuse Muslims. The Herald says that "Allah" is an Arabic word that has been used more generally for centuries to mean "God" in Malay. (See prior related posting.) In a separate case, the Sabah Evangelical Church of Borneo has also filed suit after officials last year banned its import of books containing the word "Allah".

Recent Scholarly Articles of Interest

From SSRN:

• Andrew M.M. Koppelman, Phony Originalism and the Establishment Clause, (Northwestern Public Law Research Paper No. 08-15, April 25 2008).


• Patrick McKinley Brennan, Differentiating Church and State (Without Losing the Church),(Georgetown Journal of Law & Public Policy, Forthcoming).


• Brian J. Bilford, Harper's Bazaar: The Marketplace of Ideas and Hate Speech in Schools, Stanford Journal of Civil Rights and Civil Liberties, Vol. 4, 2008).

The electronic journal, Law & Ethics of Human Rights, Vol. 1, 2007 has recently appeared through Bepress. Among the articles of interest in this issue devoted to Multiculturalism & the Anti-discrimination Principle are:

• Nancy L. Rosenblum, Banning Parties: Religious and Ethnic Partisanship in Multicultural Democracies.


• Rajeev Bhargava, On the Persistent Political Under-Representation of Muslims in India.


• Alon Harel, Regulating Modesty-Related Practices.


• Tzvia Greenfield, Is It Really so Benign? Gender Separation in Ultra Orthodox Bus Lines.


• Moshe Cohen-Eliya, Is Conditional Funding a Less Drastic Means?.


• Stephen Macedo, In Defense of Conditional Funding of Religious Schools.


• Iddo Porat, On the Jehovah's Witnesses Cases, Balancing Tests, and Three Kinds of Multicultural Claims.

From SmartCILP:

• Symposium. Gender Relevant Legislative Changes in Muslim and Non-Muslim Countries. Table of Contents, 64 Washington & Lee Law Review 1291-1568 (2007).

Jewish Parents In Plano, TX Say Students Harassed To Take New Testament

The Plano, Texas School District finds its policy of granting all outside groups equal access to unstaffed distribution tables at schools under attack. Saturday's Dallas Morning News reports that parents of some Jewish students at Vines High School say their children were pressured and taunted by other students to pick up a copy of the Gideons' New Testament. School officials have talked to students about tolerance, but have not disciplined anyone for making comments to the Jewish students such as "if the Bible touched you ... would you burn...?" Some parents have suggested that the schools limit display tables to quieter areas such as the library or classrooms. Others have urged the school to warn them when Christian displays are being set up.

Kentucky 10 Commandments Case Appealed To 6th Circuit

In the latter part of April a notice of appeal to the U.S. 6th Circuit Court of Appeals was filed in ACLU of Kentucky v. Grayson County, Kentucky, a case in which a Kentucky federal district court permanently enjoined a display of the Ten Commandments as part of a Foundations of American Law and Government Display in the Grayson County (KY) Courthouse. (See prior posting.) On Thursday, The Record (Grayson County) reported that Liberty Counsel has agreed to argue the appeal at no cost to the county. Meanwhile the courthouse continues to display an empty frame where the Ten Commandments had been, while retaining the other documents in the display. The Ten Commandment Defense group has put up seven highway billboards showing the Ten Commandments, and more than 150 local businesses have agreed to display the Ten Commandments to protest their removal from the courthouse.

Turkish Schools In Pakistan Offer Moderate Islamic Alternative

Today's New York Times carries a front page article titled Turkish Schools Offer Pakistan a Gentler Vision of Islam. It reports on a group of Turkish educators-- offering an alternative to both public schools and madrasas-- who have:

an entirely different vision of Islam. Theirs is moderate and flexible, comfortably coexisting with the West while remaining distinct from it. Like Muslim Peace Corps volunteers, they promote this approach in schools, which are now established in more than 80 countries, Muslim and Christian....

They prescribe a strong Western curriculum, with courses, taught in English.... They do not teach religion beyond the one class in Islamic studies that is required by the state.... [H]owever, they encourage Islam in their dormitories, where teachers set examples in lifestyle and prayer....

The model is the brainchild of a Turkish Islamic scholar, Fethullah Gulen... Moderate as that sounds, some Turks say Mr. Gulen uses the schools to advance his own political agenda.

Illinois Man Seeks "In God We Trust" As New Name

Zion, Illinois school bus driver and amateur artist Steve Kreuscher is asking an Illinois court to permit him to legally change his name to "In God" [first name] "We Trust" [last name]. Yesterday's Chicago Daily Herald reports that the 57-year old says: "Those words are an endangered species. You might take it off the money, but you can't take away my name." A hearing on the name change is scheduled in a Lake County court on June 13. [Thanks to Scott Mange for the lead.]

West Virginia High Court Rejects Challenge To Prosecutor's Biblical References

In State of West Virginia v. Keesecker, (WV Sup. Ct. App., April 25, 2008) West Virginia's Supreme Court of Appeals rejected a claim by a defendant who had been convicted on six counts of sexual assault that her convictions should be reversed because the trial judge permitted the prosecutor to refer to biblical theory and examples during closing argument. Because no objection was made at trial to the comments, the court could reverse only under the "plain error doctrine". The court said:

The essence of the prosecutor's biblical citations ... involved the prosecutor's perception of the jury's role as the "Throne of Judgment" and the judge's role as the "Throne of Mercy." ...[T]he prosecutor cited various Old Testament characters and the judgments allegedly made by God upon their actions. Because this Court cannot conclude that the prosecutor's biblical references impacted the Appellant's substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings, we decline to utilize the plain error doctrine....

The court however did reverse appellant's conviction and remand for a new trial on other grounds. Friday's Bluefield (WV) Daily Telegraph discusses the case.

Recent Develpments In the FLDS Child Custody Case

Carey Cockerell, the Texas Commissioner of Family and Protective Services, testified before the Texas Senate Committee on Health and Human Services last Wednesday on developments and challenges in the handling of children taken into foster care after the raid of the FLDS ranch in Eldorado, Texas. A recording of the full hearing is available from the Senate's website. The previously scheduled hearing was to focus on needs of the Department, on the foster care system and on preventing child abuse. The Department of Family and Protective Services posted on its website a release summarizing the Commissioner's testimony, as well as a follow-up letter to the chairman of the committee. DFPS has also posted a "Model for Care" for the FLDS children and a "Cultural Awareness Guide" for caregivers. Saturday's Deseret News discusses the Cultural Awareness Guide.

Last Thursday, Tom Green County District Court released a document titled the Bishop's Record that contains the names, ages and locations for many of the FLDS men, women and children. An article in Friday's San Angelo Standard-Times discusses the document and also contains a sidebar with links to all the court document that have so far been released in the case.Texas DFPS has posted on its website a breakdown by age and gender of the 464 FLDS children. The website also contains a chronology of the investigation and a Frequently Asked Questions document.

Meanwhile Cardozo Law School professor Marci Hamilton published an article on FindLaw contending that the due process and religious freedom arguments raised by FLDS members lack merit.

Israel's Supreme Rabbinical Court Invalidates Conversions Performed By Two Rabbis

In Israel, the tensions between those who want impose strict conversion standards on individuals seeking to become Jews and those who opt for somewhat more liberal standards have again surfaced in a decision of the Supreme Rabbinical Court last week. YNet News and My Obiter Dicta blog report that the Court has ruled all conversions performed since 1999 by Rabbis Chaim Drukman and Chaim Avior are invalid. As reported by Haaretz, the two rabbis in question operate a special conversion court at Or Etzion Yeshiva . The special courts were created to speed up the conversion process. They are responsible directly to the Prime Minister's Office and the government's chief rabbis. These special courts have been opposed by the ultra-Orthodox (haredi) Bet Din (religious court) system. The ruling came in the context of a divorce proceeding originating in the Ashdod Rabbinical Court, but the decision will affect many converts. The decision is likely to be appealed to Israel's High Court of Justice for final resolution.

UPDATE: Monday's Jerusalem Post reported that Chief Sephardi Rabbi Shlomo Amar assured the thousands of affected converts on Sunday that their conversions would continue to be recognized by the rabbinic establishment. Apparently Amar had expressly ordered the judges not to publish the opinion. Others, however, say that the charges leveled by the Supreme Rabbinical Court against Rabbi Chaim Drukman are so serious that his conversions will inevitably be called into question. The court accused Druckman of intentionally violating Jewish law, lying, and forging official rabbinic documents. The Jerusalem Post also reports that the Public Petitions Committee of the Knesset will hold an emergency meeting Monday to discuss the issue.

UPDATE: Tuesday's Jerusalem Post publishes an analysis of the ideological split involved in the conversion dispute. It views it as a clash between religious Zionist and haredi rabbis.

Iranian Artist In Europe Gets Death Threats From Home

A fatwa urging the killing of Iranian artist Sooreh Hera, who now lives in the Netherlands, has been published in Iranian newspapers, according to Fox News today. The death threats came after the artist attempted to display her photos of gay men titled "Adam & Ewald, Seventh-Day Lovers." Some of the photos include depictions of the Prophet Muhammad and his son-in-law Ali. Art Amsterdam, a Dutch art festival, has now agreed to show Hera's work next month, but only if the photos of partly undressed men wearing masks of Ali and Muhammad are excluded. Hera has called on the Dutch Ministry of Culture to give protection to controversial art and artists.

Britain Approves Shariah Compliant Insurance Company

Britain's Financial Services Authority has, for the first time, granted regulatory approval to an independent insurance company that will offer Shariah-compliant home and auto insurance. Financial Advice reported on Friday that Principle Insurance will now be able to offer Britain's 2 million Muslims insurance products that do not compromise their religious beliefs. The blog Islam in Europe explains details of the insurance products that the company will provide.

Anti-Evolution Film Makers Sued for Copyright Violations

The AP reported last week that producers of the already controversial film Expelled: No Intelligence Allowed are now being sued by Yoko Ono who claims that the film violates copyright laws by using portions of John Lennon's song Imagine in the movie. While the production company Premise Media says that it is protected under the fair use doctrine, Ono's lawsuit says that the way the song is listed in the film's credits inaccurately suggests to viewers that the producers had permission to use it. (Background from Wall Street Journal, April 16). The film's premise as set out by it producers is that "educators and scientists are being ridiculed, denied tenure and even fired – for the 'crime' of merely believing that there might be evidence of 'design' in nature, and that perhaps life is not just the result of accidental, random chance." On Friday, the Fair Use Project of Stanford Law School's Center for Internet and Society announced that it will defend Premise Media in the lawsuit.

Court Says Employer Has Burden Under Title VII To Attempt Accommodation

In EEOC v. Texas Hydraulics, Inc., (ED TN, April 16, 2008), a Tennessee federal district court denied defendant's motion for summary judgment in a Title VII religious discrimination lawsuit. Keith Vogeler, a production employee, would not work from sundown Friday to sundown Saturday for religious reasons. Vogeler was dismissed by Texas Hydraulics after refusing to work on seven different Saturdays. The court held that, under Title VII of the 1964 Civil Rights Act, the employer has the burden of showing that it offered the employee a reasonable accommodation or at least considered possible options that would have accommodated an employee and that these options were rejected because they would have caused an undue hardship. Here Texas Hydraulics offered no evidence that it attempted to find a reasonable accommodation. The case is discussed in last Monday's BNA Corporate Law Daily [subscription required].

USCIRF Issues Its 2008 Report on International Religious Freedom

Today the U.S. Commission on International Religious Freedom announced release of its 2008 Annual Report (full text) recommending eleven countries be designated as "countries of particular concern"-- those that are are most restrictive of religious freedom. The countries on the list are: Burma, North Korea, Eritrea, Iran, Pakistan, China, Saudi Arabia, Sudan, Turkmenistan, Uzbekistan, and Vietnam. The Report also includes a Watch List of countries that require close monitoring, though which are less oppressive that the CPCs. Those on the Watch List are Afghanistan, Bangladesh, Belarus, Cuba, Egypt, Indonesia, and Nigeria. The Commission is postponing its recommendations as to Iraq pending a Commission visit to the country later this month. This compromise was approved after a sharp party-line split among Commissioners over the draft chapter in the report on Iraq. (New York Sun). USCIRF's recommendations are made pursuant to provisions of the 1998 International Religious Freedom Act. This year's recommendations largely mirror those in last year's report. USCIRF's recommendations go to the State Department for its use in preparing its annual report on international religious freedom. [Thanks to Blog from the Capital for the lead.]

New Appeal Filed By FLDS Mothers In Attempt To Regain Custody of Children

On Wednesday, attorneys for 38 mothers of children taken from the FLDS Ranch in Eldorado, Texas filed an an Amended Petition for Writ of Mandamus (full text) with a Texas state appellate court seeking return of their children. The case is captioned In re Sara Steed, et. al. (TX 3d Ct. App.). The new petition argues that the trial court abused its discretion in failing to return the children to their mothers and in denying them visitation rights.

Today's Ft. Worth Star Telegram says the petition argues that the children should not have been removed from their mothers without evidence the mothers pose an immediate physical danger to the children. It alleges that mere fear of a dangerous culture or mindset is insufficient to justify removal. Yesterday's Deseret News reports the petition suggests that the mothers and children could be ordered to live together off the FLDS compound while the state is investigating. Since the FLDS men are the alleged abusers, they could be ordered off the YFZ Ranch or protective orders barring the men from contact with the women and children could be issued. (See prior related posting.)

6th Circuit Rejects Amish Challenge to Septic Tank Requirements

In Beechy v. Central Michigan District Health Department, (6th Cir., April 23, 2008), the U.S. 6th Circuit Court of Appeals rather summarily affirmed a district court decision rejecting free exercise and RLUIPA claims by Amish defendants who objected to septic tank size requirements. The Amish claimed that installing larger tanks would incur wasteful expenses and tempt them to install modern conveniences in their homes, such as bathrooms. The court held that challengers had not shown any "substantial burden" on a religious practice. It also upheld the trial court's denial of plaintiffs' motion to amend their complaint and allege a new state law claim under Michigan's Right to Farm Act.

Indian Tribe Faction Asserts Religious Rights To Support Land Takeover

In Wisconsin, a Lac Du Flambeau tribal court is being asked to grant a restraining order and an injunction to prevent law enforcement officials from removing members of the Ginew faction of the tribe from a piece of tribal land they have taken over in protest against financial activities of the Tribal Council. The Rhinelander Daily News yesterday reported that the dissident Ginew faction has erected a large tent on the occupied land and constructed a sacred fire inside. Relying on this, the dissidents say that now their First Amendment rights and their rights under the Native American Free Exercise of Religion Act would be violated if they are removed from the land.

Court Finds Church-State Problems With University Training Manual

In Sklar v. Clough, (ND GA, April 29, 2008), a Georgia federal district court found substantial problems with material included in a training manual used in Georgia Institute of Technology's "Safe Space" program. Safe Space is designed to create a supportive environment on campus for gay, lesbian, bisexual and transgender students. In an 84-page opinion, the court focused on material dealing with the views of various religious groups regarding homosexuality. It held that inclusion of this material violates the Establishment Clause by favoring some religious beliefs over others.

In the opinion the court also dismissed claims regarding use of student activity fees because there had not been adequate proof of the responsibility of the specific named defendants. However the court suggested that a suit against proper defendants could well be successful. It said the school's policy against funding religious activities with student fees is administered in a manner that "is whimsical and would appear to exceed even an arbitrary and capricious standard." Alliance Defense Fund yesterday issued a release reporting on the court's decision. Also the Atlanta Journal Constitution and Inside Higher Education both report on it. (See prior related posting.)