New Developments In Westboro Baptist Church Litigation

Today's Topeka (KS) Capital-Journal reports on two developments relating to Topeka's anti-gay Westboro Baptist Church and its members who have gained notoriety for picketing funerals of Iraq war veterans. (Background.) On Monday the U.S. 4th Circuit Court of Appeals refused to stay collection of the $5 million Maryland federal district court damage award against church leaders growing out of their picketing of the funeral of Marine Lance Corporal Matthew A. Snyder. (See prior posting.) Meanwhile, on Tuesday the Kansas Court of Appeals heard arguments on whether the pickup truck that Westboro uses to carry its picket signs is exempt from personal property tax. At issue is whether the messages on the signs are religious or political. The Board of Tax Appeals ruled the truck was subject to taxation, finding that there was at least some political content in the signs.

MN Court Rejects Establishment Clause Challenge To Clergy Sexual Conduct Law

Today's Winona (MN) Daily News reports that a Winona County District Court has rejected a facial Establishment Clause challenge to Minnesota's clergy sexual conduct statute. In a decision last year, the Minnesota Supreme Court divided evenly on whether the statute is facially invalid under the Establishment Clause. (See prior posting.) The Winona County case against Rev. Donald Dean Budd had been delayed pending the Supreme Court's decision. Now Winona County Judge Jeff Thompson ruled: "The defendant has not demonstrated that all or most applications of the clergy sexual conduct statute would foster excessive entanglement of government and religion." At issue was a provision in MN Stat Sec. 609.344 that prohibits sexual relations "during a period of time in which the complainant was meeting on an ongoing basis with the actor to seek or receive religious or spiritual advice, aid, or comfort in private."

Tennessee Legislature Authorizes Courses On Bible and Its Influence

The Tennessee legislature has passed and yesterday sent to Gov. Phil Bredesen for his signature HB 4089 that authorizes "the state board of education to develop and adopt a curriculum for a state funded elective course consisting of a nonsectarian, nonreligious academic study of the Bible and its influence on literature, art, music, culture, and politics." Attorney General Opinion 08-74 (April 1, 2008) concluded that the bill, with various protections in it, is consistent with the Establishment Clause. Attorney General Opinion 08-105 (May 7, 2008), warned that a then-pending amendment to remove certain guidelines for the course would make it more likely that a Bible course would be taught in an unconstitutional manner. The Paris (TN) Post-Intelligencer says that currently less than 20% of Tennessee's counties offer Bible courses in their schools. [Thanks to Scott Mange for the lead.]

Wiley Drake's Church Cleared of IRS Campaign Violations

California Southern Baptist pastor Wiley Drake has been cleared by the IRS of charges that his Buena Park First Southern Baptist Church violated tax code restrictions on non-profit organizations by endorsing Mike Huckabee in the Republican presidential primary this year. According to yesterday's ABP News, at issue were an e-mailed endorsement written on church letterhead and an endorsement made on an Internet radio program broadcast from church property. The IRS concluded, however, that Drake made the endorsements in his personal capacity, and not on behalf of the church. (Full text of IRS May 12 letter.) Melissa Rogers, reporting on these developments, indicates that the original complaint against Drake was filed by Americans United for Separation of Church and State. Subsequently Drake called for Imprecatory Prayer against AU leaders. (See prior related posting.)

Ugandan University Bars Muslim Women From Wearing Head Coverings In Exams

In Uganda, Makerere University has angered Muslims by banning students wearing head coverings from entering examination rooms. The ban primarily affects Muslim women. New Vision yesterday reported that university officials say they are trying to prevent cheating by preventing students from carrying jackets, scarfs, caps and sweaters into exams. Presumably the directive is intended to prevent those taking exams from hiding unauthorized material. However Muslim students say this is an attack on the Muslim faith. They protested by marching from the university mosque to the main building carrying signs such as one reading: "Accord Islam value, don’t undress our Muslim sisters."

British Registrar's Religious Discrimination Suit Heard By Tribunal

Today's London Mail reports that in Britain, a London employment tribunal yesterday heard arguments in a religious discrimination case brought by civil marriage registrar Lillian Ladele. Ladele says that the Islington council violated her rights when it insisted that in order for her to keep her position she would be required to perform civil partnership ceremonies for same-sex couples. Ladele, a Christian, claims that as a matter of religious principle she cannot perform the ceremonies. She told the hearing examiner that she was picked on and bullied on a daily basis at work.

Canada's High Court To Hear Case On Mature Minor's Relgious Rights

Canada's Supreme Court today will hear arguments in A.C. v. Director of Child and Family Services, a case raising the question of whether mature minors have the right under Canada's Charter of Rights and Freedoms to refuse a blood transfusion on religious grounds. Today's Toronto Globe and Mail reports that the question is raised by a 14-year old Winnipeg girl who was forced to have a blood transfusion to replace blood lost through Crohn's disease even though she claimed the procedure violated her Jehovah's Witness beliefs. Manitoba's Child and Family Services Act authorized doctors to ignore the minor's objections. A summary by Canada's Supreme Court frames the issues in the case:

Whether provisions of The Child and Family Services Act, C.C.S.M. c. C80 are unconstitutional on the basis that they infringe child’s rights under ss. 2(a), 7 and 15(1) of the Charter - If so, whether infringement is justified as a reasonable limit - Should capacity or an arbitrary legislated age determine a capable patient’s Charter right to make medical treatment decisions - Does s. 1 of the Charter require the state to lead compelling evidence justifying arbitrary age legislation that overrides a capable patient’s medical treatment decisions.

UPDATE: The Canadian Press reports on Tuesday's oral arguments in which the parties sparred over the constitutionality of Manitoba's law.

New York Court Refuses Comity to Israeli Divorce Based On US Religious Decree

In Tsirlin v. Tsirlin, (NY Sup. Ct. Kings Co., May 14, 2008), a New York state trial court refused to recognize the validity of a divorce decree issued under unusual circumstances by an Israeli Rabbinical Court. The couple involved are Israeli citizens now living in New York. The Israeli decree was based on a religious divorce ("Get") issued by a rabbinical tribunal in Brooklyn. The Israeli court issued its decree after the husband's father presented the Brooklyn "Get" to the court. Neither party appeared before the Israeli tribunal. Subsequently, husband Alexander Tsirlin filed for divorce in New York, but wife Alla Tsirlin moved to dismiss on the ground that they were already divorced. The court rejected her motion, holding:

If this court were to sanction the utilization of a "Get" to circumvent the constitutional requirement that only the Supreme Court can grant a civil divorce, then a party who obtains a "Get" in New York could register it in a foreign jurisdiction and potentially, later on, rely on the"Get" to obtain a civil divorce in New York thereby rendering New York Stae's [sic.] Constitutional scheme as to a civil divorce ineffectual (New York State Constitution, Article 1 Section 9 . . . nor shall any divorce be granted otherwise by judicial proceedings). It would have the practical affect [sic.] of amending the Domestic Relations Law section 170 to provide a new grounds for divorce.

Today's New York Law Journal reports on the decision.

Hearings Begin In FLDS Custody Cases; Vague Service Plans Protested

The AP and the Salt Lake Tribune report on hearings that began yesterday in the custody proceedings for over 460 children taken from the FLDS ranch in Eldorado, Texas. Five judges are conducting the hearings which, it is expected, will run for three weeks. Nearly identical "service plans" were proposed in each case as a condition to return of children to their parents. More individualized tailoring of the plans is expected in the future. However attorneys for the parents say the service plans are vague and it is unclear exactly what parents need to do. The plans generally require parents to get counseling and vocational training, obtain psychological evaluations and attend parenting classes. Authorities hope to reunify families by next April. In the meantime, parental visits are difficult or impossible as the children have been scattered around the state, up to 650 miles apart. It is unclear under the plans whether the children will be allowed to return to the Yearning for Zion Ranch. The plans merely call for a "safe" environment for the children. It is also unclear whether parents will be able to continue home schooling their children.

UPDATE: Child welfare officials are banning any mention of FLDS leader Warren Jeffs to the children in state custody. Tuesday's Houston Chronicle reports that family members visiting children in foster care may not mention Jeffs, and children may not have copies of the Book of Mormon if they have Jeffs picture or signature in them.

Danish Government Will Ban Judges From Wearing Religious Garb or Symbols

Denmark's government, reacting to pressure from the anti-Muslim Danish People's Party, says it will ban Danish judges from wearing headscarves and other religious or political symbols in their courtrooms. The ban will also extend to crucifixes worn by Christians, skull caps worn by Jewish judges and turbans worn by Sikhs. However the ban is seen as mainly directed toward Muslims, and, according to BBC News, Danish diplomats in Muslim countries expect the decision to lead to a new wave of protests. Danish Justice Minister Lene Espersen, however, says the ban is intended to assure that judges appear neutral and impartial. (See prior related posting.)

Survey Finds 16% of High School Biology Teachers Believe In Creationism

New Scientist yesterday reported that a Pennsylvania State University professor's survey of high school biology teachers reveals that 16% of them hold young earth creationist views. Prof. Michael Berkman's research found that approximately one in eight of the 939 teachers responding to the survey say they believe human beings were created by God within the last 10,000 years. Some 25% of the biology teachers responding say they devote some class time to creationism or intelligent design. Almost half of that group teach one of these as a valid scientific alternative to evolution.

Cultural Identity Charter School Ordered To Make Two Changes In Operations

After a Minneapolis newspaper columnist charged that the Terek ibn Ziyad Academy, a cultural identity publicly-funded charter school, had breached the line between church and state (see prior posting), the Minnesota Department of Education this month conducted a review of the Inver Grove (MN) school's operations. As reported by yesterday's Minneapolis Star Tribune, and by a Department of Education press release, the school was ordered to make changes in two areas of operation.

The Department found that the school's 30-minute Friday prayer service held on school premises cut excessively into required instructional time. Permitting teachers to pray along with students at the service was also improper governmental endorsement of religion. Finally the Department said that busing schedules need to be changed. The 30% of the students who do not participate in after-school activities must be offered transportation immediately after classes end. The most popular after-school session is a religious studies course run by the Muslim American Society. The school's executive director told the Star Tribune that most significant was the fact that the state found no problems with the school's curriculum.

US Serviceman In Iraq Infuriates Muslims By Using Quran For Target Practice

CNN reports today on the furor that has been created by a U.S. staff sergeant in Iraq who earlier this month used a Quran for target practice at an Iraqi police station. Last Saturday, the U.S. commander of forces in Baghdad, Maj. Gen. Jeffery Hammond, appeared at a formal apology ceremony. Not only did he speak, but part of a letter of apology from the staff sergeant was read and another military official kissed a Quran and presented to tribal leaders at the ceremony. The offending serviceman, a leader of a sniper unit, has been relieved of duty in Iraq, reprimanded and redeployed back to the United States. However the Iraqi Islamic Party says this is not enough. Sheikh Hamadi al-Qirtani called the shooting "aggression against the entire Islamic world."

UPDATE: CNN reported on Tuesday that Iraqi Prime Minister Nuri al-Maliki's office has said that President Bush has apologized for the soldier's actions. However White House National Security Council spokesman Gordon Johndroe said that Bush, during his regularly scheduled teleconference with al-Maliki, expressed "deep concern" but stopped short of apologizing.

Proposed Religion Classes Stir Controversy In Bosnia-Herzegovina

In Bosnia and Herzegovina, proposals to introduce optional instruction in religion into kindergarten classes in Sarajevo have created controversy. Today's Southeast European Times reports that Bosnian Muslim parents generally favor the plan, while non-religious parents opposed to the plan have begun to circulate a petition captioned "Stop Religious Segregation in Kindergarten." The OSCE says that any plan needs to create a sense of inclusiveness in the multi-ethnic country.

Franklin Graham Criticizes "Missionary-Invasion" Plans For Olympics

Evangelist Franklin Graham is concerned about the planned influx of Christian missionaries into China for the Beijing Olympics. Today's Charlotte (NC) News reports that Graham fears the illegal missionary-invasion strategy that some U.S. and foreign groups are planning could jeopardize the freedoms that have been won recently by Chinese Christians. Graham has posted the full text of China's Regulations on Religious Affairs on the Billy Graham Evangelistic Association website, and urges groups planning to go to China to familiarize themselves with the law. Some of the groups planning to send unauthorized missionaries to China have harshly criticized Graham's position.

Bush Tells Mid East Leaders That Democracy Does Not Threaten Islam

President Bush yesterday spoke at the World Economic Forum, meeting in Sharm el Sheikh, Egypt. The New York Times characterized his speech to diplomats, policy makers and business executives as one that criticized Middle East leaders. It pressed them toward economic expansion, equal rights for women and democracy. In his remarks (full text) President Bush focused in part on the relationship of democracy to religious freedom:

There are people who claim that democracy is incompatible with Islam. But the truth is that democracies, by definition, make a place for people of religious belief. America is ... one of the world's leading democracies, and we're also one of the most religious nations in the world. More than three-quarters of our citizens believe in a higher power. Millions worship every week and pray every day. And they do so without fear of reprisal from the state. In our democracy, we would never punish a person for owning a Koran. We would never issue a death sentence to someone for converting to Islam. Democracy does not threaten Islam or any religion. Democracy is the only system of government that guarantees their protection.

Recent Scholarly Articles and New Book of Interest

From SSRN:

• Teresa Stanton Collett, Advancing the Culture of Life Through Faithful Citizenship, (Journal of Religion and Society, 2008).
• Akiva Shapiro, Should the Lower Courts Save Taxpayer Standing? Interpreting Hein v. Freedom from Religion Foundation Narrowly Through the Lens of Judicial Spending,(Journal of Appellate Practice and Process, Vol. 10, No. 2, 2009).
• Scott A. Taylor, Spirituality and Academic Performance at a Catholic Law School: An Empirical Study, (California Western Law Review, Vol. 45, 2008).

Recent Law Review Articles:

• Erwin Chemerinsky, Why Church and State Should Be Separate, 49 William & Mary Law Review 2193 (2008).
• Gerard V. Bradley, Religion at a Public University, 49 William & Mary Law Review 2218 (2008).

New Book:

Jeff Sharlet, The Family: The Secret Fundamentalism at the Heart of American Power, (HarperCollins, May 2008).

Fired Engineer Sues-- Claims Religious Discrimination Over Christian Beliefs

Saturday's Cedar Rapids (IA) Gazette reports on an interesting employment discrimination lawsuit filed by Thomas Meeker, a former senior systems engineer claims Rockwell Collins. Meeker, a Christian who believes that homosexuality is a sin, refused to complete Rockwell Collins' diversity training program. Meeker says that the training required employees to accept and embrace homosexuality. In July 2007, Meeker was fired for refusing to treat gay and lesbian co-workers with respect. Meeker's federal court lawsuit alleges religious discrimination, claiming that he was fired because he is a Christian.

Bahrain Prohibits Political Activities At Mosques

According to today's Kahleej Times, Bahrain's Ministry of Justice and Islamic Affairs has issued a ban on political discussions and political activities at mosques in order to protect their sanctity. The ministry has also increased its inspection visits to all mosques in order to prevent their politicization and promotion of disunity among Muslims. (See prior related posting.)

FLDS Parents Served By Formal Publication Notice

The state of Texas this week formally published legal notices serving process on both identified and unknown FLDS parents of children held in custody by the Department of Family and Protective Services. The "Citations By Publication/Posting" (full text) were published in this week's Eldorado Success. Today's Deseret News reports on this, as well as on an open letter (full text) to Texas Governor Rick Perry and Judge Barbara Walther from an 80-year-old FLDS Church member who strongly criticizes the actions taken by the state of Texas.

Dutch Cartoonist Arrested For Publishing Cartoons Insulting To Mulsims

Radio Netherlands reports that last Tuesday a Dutch cartoonist, drawing under the name Gregorius Nekschot was arrested for publishing cartoons that were "insulting to Muslims and to people of colour". Many were published online. The Public Prosecutors Office says that a complaint was filed against Nekschot in 2005, but because the cartoonist used a pseudonym it has taken this long to locate who he really is. Nekschot is know for cartoons that are insulting to left-wing politicians as well as for those that insult religion. This YouTube clip shows a number of the offending drawings. NIS News reported yesterday that many in the Lower House of Netherlands Parliament have sharply criticized Nekschot's arrest.

Court Rejects Challenge To Hawaii's Limits On Who Can Perform Marriages

In Woods-Bateman v. State of Hawaii, 2008 U.S. Dist. LEXIS 39661 (D HI, May 13, 2008), an Hawaii federal district court rejected a constitutional challenge to HRS § 572-12. The statute limits those who can be licensed to solemnize marriages to either clergy or judges. In filling out an application to be licensed to perform marriages, plaintiff left blank the questions relating to whether he came within one of these categories. After he was denied a license, he sued claiming that his rights under the First, Fifth and Fourteenth Amendments had been violated. The court held that Hawaii's requirements did not violate the Establishment Clause:

The requirement has the secular purpose of maintaining the integrity of marriage records.... Judicial officers and religious leaders are individuals that the State has recognized in the past and can reasonably expect will ensure, in the future, the recording of essential information.

The court also rejected plaintiff's free speech and equal protection challenges, holding that there is no fundamental right to be entitled to solemnize marriages.

Suit Threatened Over Wisconsin Village Land Sale To Preserve Cross

Last month, the Village Board of Holmen, Wisconsin reacted to a complaint about a display of a cross and a star on property it now owns by agreeing to sell the land and display to the Lions Club for $600. The Lions Club, which pledged to keep the display intact, was involved in its construction in 1960 on the land that was then privately owned. Five years ago the city bought land that includes the display for a reservoir. (See prior posting.) It turns out, however, that when the Village Board agreed to the sale to the Lions, it ignored higher bids from two other groups. The American Humanist Association (AHA press release) had bid $1000 for it and the Freedom from Religion Foundation had bid $1200. Yesterday's Holmen Courier reports that the AHA is now considering suing the village, saying that the Village Board ignored the competing bids only because it favored the cross remaining on the land. The Lions Club will fence off the display, install signs saying it is their property and will have an electric meter installed so it will pay for lighting. It will also restrict access to protect the nearby village water reservoir.

California Church Wins RLUIPA Claim Over Use Permit Process

In Grace Church of North County v. City of San Diego, (SD CA, May 9, 2008), a California federal district court concluded that the city of San Diego violated the Religious Land Use and Institutionalized Persons Act when it granted Grace Church only a five year conditional use permit to occupy property it leased in the Rancho Bernardo Industrial Park. The court concluded that:

the mandatory CUP process established by Defendants and applied to Grace Church – with the result that Plaintiff received a CUP of only half the length Plaintiff requested, and has no reasonable expectation that Defendants will approve any extension – constituted a substantial burden on Grace Church’s exercise of religion. At various levels of Defendants’ mandatory CUP process, Grace Church experienced outright hostility to its application, decision-making that is seemingly arbitrary or pretextual, and ignorance regarding the requirements of controlling federal law regarding the application of land use laws to religious institutions.

... The facts of this case belie Defendants’ claim that they have a "compelling interest" in preserving industrial lands in the industrial park where Grace Church has secured its property.

Alliance Defense Fund last week issued a release on the decision and World Net Daily reported on the decision on Friday. (See prior related posting.)

Reactions To California Marriage Decision From Chief Justice and Religious Groups

Today's Los Angeles Times reports on its unusually candid interview with California Supreme Court Chief Justice Ronald M. George about the Court's ruling last week legalizing same-sex marriage. George told the paper: "there are times when doing the right thing means not playing it safe." Meanwhile today's San Jose Mercury News reports on the divided views about the decision among religious leaders of different faiths and denominations. Before the decision came down, a group known as ProtectMarriage.com already filed with the California Secretary of State petitions containing 1.1 million signatures to get a marriage amendment to the state constitution on the November ballot. The proposed amendment provides that only marriage between a man and a woman is valid or recognized in California. The Secretary of State is expected to announce in mid-June whether there are enough valid signatures for the measure to actually be placed on the ballot. Liberty Counsel announced Friday that it would file a motion with the California Supreme Court asking it to stay the effectiveness of its ruling until after the November vote on the marriage amendment.

Uganda's Parliament Passes Education Bill Calling For Elective Courses In Religion

Catholic Information Service for Africa yesterday reported that Uganda's Parliament has passed an Education Bill that makes religious studies an elective in elementary and secondary schools in the country. The bill rejects the government's proposal to take religious education out of the school curriculum. However it also rejects a proposal by the Uganda Joint Christian Council and the Uganda Muslim Education Association to make religious studies compulsory for all students.

Cert. Petition Filed In Oregon Religious Circumcision Case

Friday's Oregonian reports that last month a petition for certioarari was filed with the U.S. Supreme Court in the case of Boldt v. Boldt, (Docket No. 07-1348). In the case, a now-divorced mother who is a member of the Russian Orthodox Church is seeking to prevent her former husband-- a convert to Judaism-- from having their 12-year old son circumcised. The issue was raised in the context of a petition for change of custody. The Oregon Supreme Court below remanded the case, ordering the trial court to determine whether the child wants the circumcision, or objects to it-- an issue over which the parents disagree. (See prior posting.)

10th Circuit Hears Oral Arguments In College Aid Case

On Wednesday the U.S. 10th Circuit Court of Appeals heard oral arguments in Colorado Christian University v. Baker, a case challenging Colorado's exclusion of "pervasively sectarian institutions" from its tuition assistance programs for low-income students attending colleges and universities in the state. The district court upheld the exclusion. (See prior posting.) Wednesday's Denver Post reports that judges questioned counsel on the state's purpose in enacting the exclusion and asked whether the exclusion might pressure religious institutions to change their policies in order to participate in the programs. [Thanks to Blog from the Capital for the lead.]

Czech President Vetoes Anti-Discrimination Law

CeskeNoviny reports today that Czech Republic President Vaclav Klaus has vetoed a broad anti-discrimination law designed to assure equal access to education, work, health care and social advantages. The law would ban discrimination on the basis of religion, as well as on the basis of numerous other grounds (age, race, nationality, sexual orientation, health handicap, sex, and world outlook). Even though such legislation is mandated by the European Union, Klaus in vetoing it said that it merely sums up protections already in place. He said that the form of anti-discrimination measures is up to individual EU members. Klaus called the legislation "ideological, not legal". The bill now goes back to the Chamber of Deputies.

Arizona Appellate Court Strikes Down School Voucher Programs

In Cain v. Horne, (AZ Ct. App., May 15, 2008), an Arizona appellate court found that two school voucher programs that were enacted by the state legislature in 2006 violates the Arizona Constitution. At issue are voucher programs for students with disabilities and for students in foster homes. The court held that the neutral programs do not violate Art. 2, Sec. 12, the Religion Clause of Arizona's constitution which bans appropriations to support religious instruction. However, the court held that the voucher programs do violate the Aid Clause of Arizona's Constitution, Art. 9, Sec. 10 that bars appropriations to aid private or sectarian schools. The court rejected the argument that the "true beneficiaries" of the voucher payments are the students rather than the private and parochial schools that receive the voucher checks made out to pupils' parents or guardians. Today's Arizona Daily Star reports on the decision.

Coast Guard Agrees To Vaccine Exemption, Ending Lawsuit

Cath News reports today that the U.S. Coast Guard has now agreed to grant an exemption from its Hepatitis A vaccination requirement to Lt. Cmdr. Joseph J. Healy who has refused the vaccine on religious grounds. The version of the vaccine available in the U.S. was developed from cells originally taken from an aborted fetus. Last December Healy filed suit against the Coast Guard after an officer denied his immunization request on the ground that Catholic Church doctrines do not ban adherents from receiving the vaccine. (See prior posting.) Now that the Coast Guard has informed the court that the exemption will be granted, Healy's attorneys say they will drop their DC federal court lawsuit.

Kosher Meat Shortage Possible After Immigration Raids On Largest Producer

The Forward reported yesterday on a potential shortage of kosher meat in the United States after Immigration and Customs Enforcement agents on Monday conducted its largest workplace raid this year. Some 390 workers at the Postville, Iowa meat processing plant operated by AgriProcessors were arrested. Most were charged with criminal identity theft or fraud in hearings ending yesterday. (Radio Iowa.) AgriProcessors produces over half of the kosher beef sold in the U.S., and most of the production is from its Iowa plant. The interruption in meat production could have a particular impact in smaller communities where the only kosher meat sold by supermarkets is supplied by AgriProcessors, often under the Aaron's Best, Rubashkin and Supreme Kosher brand names. AgriProcessors has also been the subject of high profile labor and animal rights disputes in recent years. The disputes have led the Conservative movement of Judaism to create the Hechsher Tzedek Commission that is attempting to focus more on working conditions, wages, environmental impact and other ethical issues in the production of kosher meat. Meanwhile, an article from Wednesday's Jewish Week suggests that federal indictments against the owners of AgriProcesors could be in the offing.

California Supreme Court Rejects Gay Marriage Ban, But No Impact On Religious Doctrines

The California Supreme court today in a 4-3 decision ruled that under the California Constitution, same-sex couples have the same right to marry as do opposite-sex couples. In In re Marriage Cases, (CA Sup. Ct., May 15, 2008), the majority emphasized, however that "affording same-sex couples the opportunity to obtain the designation of marriage will not impinge upon the religious freedom of any religious organization, official, or any other person; no religion will be required to change its religious policies or practices with regard to same-sex couples, and no religious officiant will be required to solemnize a marriage in contravention of his or her religious beliefs. (Cal. Const., art. I, § 4.)"

In reaching its decision on gay marriage, the court held that "sexual orientation [is] a characteristic that we conclude represents — like gender, race, and religion —a constitutionally suspect basis upon which to impose differential treatment...." In response to the argument that sexual orientation should not trigger strict scrutiny because it is not an "immutable" characteristic, the majority said that: "California cases establish that a person’s religion is a suspect classification for equal protection purposes ... and one’s religion, of course, is not immutable but is a matter over which an individual has control." Today's Los Angeles Times reports on the decision.

Here are links to the briefs and recordings of the oral arguments in the case.

University Fires Human Resources VP For Anti-Gay Statements

Last month, Crystal Dixon, who was Associate Vice President for Human Resources at the University of Toledo, wrote an op-ed in the Toledo (OH) Free Press which read in part: "I take great umbrage at the notion that those choosing the homosexual lifestyle are 'civil rights victims.' Here's why. I cannot wake up tomorrow and not be a Black woman. I am genetically and biologically a Black woman and very pleased to be so as my Creator intended. Daily, thousands of homosexuals make a life decision to leave the gay lifestyle...." University of Toledo President, Dr. Lloyd Jacobs, quickly responded in another column, saying: "Although I recognize it is common knowledge that Crystal Dixon is associate vice president for Human Resources at the University of Toledo, her comments do not accord with the values of the University of Toledo. It is necessary, therefore, for me to repudiate much of her writing and to make this attempt to clarify our values system."

The University also fired Dixon after she refused the alternative of a demotion and pay cut. (Toledo Free Press.) Today's Toledo Blade reports that Dixon now says that her First Amendment free speech and free exercise of religion rights were infringed by the University's actions. She says she had a divine mandate to write the column and that she was speaking as a private citizen. However a University spokesman said that Dixon's public expressions called into question her ability to perform in her human resources position.

Muslim Serviceman May Sue Army Over Its Autopsy of Infant

The AP reported yesterday that a Muslim soldier and his wife, stationed at Fort Bragg, North Carolina, may join a pending lawsuit challenging the military's respect for religious diversity. Pfc. Eli Agee and his wife, Mackenzie, are upset that authorities insisted on performing an autopsy on their infant son who died May 3, likely from sudden infant death syndrome. Muslim beliefs prohibit autopsies. The Army expedited the autopsy so the child could be buried within 24 hours as required by Muslim law. However the parents later learned that some of the child's vital organs had been removed and would be sent later for burial. Mikey Weinstein, president of the Military Religious Freedom Foundation, said there has been a consistent pattern of anti-Islamic prejudice in the Army.

New Developments In FLDS Child Custody Cases

Legal developments continue in Texas in the FLDS child custody cases. (See prior posting.) Three FLDS fathers who are in monogamous marriages to women who are of legal age filed habeas corpus petitions in a court in San Antonio seeking return of their children. Today's Salt Lake Tribune reports that James Dockstader, Rulon Keate and LeLand Keate argue that their wives have the same rights to procreate and raise a family as does any other citizen, and the fact that one of their neighbors became pregnant as a minor does not justify removing their children.

Meanwhile, according to today's Dallas Morning News, Texas Child Protective Services has drafted guidelines for "service plans" that parents will need to develop in order to regain custody of their children. CPS has set out 10 goals and 14 tasks that should be included. The guidelines question any form of communal living, require residential buildings to be open for unannounced visits by CPS workers, and mandate that the names of everyone in the home must be given to CPS. The guidelines also call for job training, schooling for children and knowing how to access community resources.

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.