FLDS Proceedings Costly To State; Investigations Continue

CNN reported yesterday that it has cost Texas well over $7 million to remove FLDS children from the YFZ Ranch, litigate the case and eventually return the children. The state spent $5.2 million to provide food, shelter and counseling (mostly employee overtime and transportation.) As of May 20, legal costs for the state exceeded $2.2 million, with the burden falling mainly on two county governments. Additional appeals took place after that. Meanwhile WFFA News reports that the investigation continues and that criminal charges against some FLDS men are possible. In a Findlaw column yesterday, law professor Marci Hamilton pointed out that the Texas Supreme Court decision returning the children to their parents made it clear that the state has broad continuing jurisdiction in the case.

Former Screen Star Convicted By French Court of Inciting Hatred

Former screen star, now animal rights activist, Brigitte Bardot yesterday was fined over $23,000 by a French court for provoking discrimination and racial hatred against Muslims. She was also ordered to pay $1,555 in damages to MRAP, a French anti-racism group. According to reports by AP and AHN, the case grew out of a letter she wrote in December 2006 to then Interior Minister Nicolas Sarkozy and which she subsequently published her foundation's quarterly journal. The letter objected to the slaughter of sheep by Muslims for the feast of Eid el-Kebir (also known as Eid al-Adha) and said that France is "tired of being led by the nose by this population that is destroying us, destroying our country by imposing its acts." The court also ordered that the court's opinion be published in the newsletter of Bardot's animal rights foundation. This is the fifth time in eleven years that Bardot has been convicted of inciting racial hatred.

California University Lets Quaker Attach Explanation To Loyalty Oath

California State University at Fullerton has agreed to allow a Quaker instructor to attach an addendum to California's requied loyalty oath. Yesterday's Chronicle of Higher Education reports that Wendy Gonaver, a lecturer in American studies who was terminated last fall when she refused to sign the oath, has now reached an agreement with the University after negotiations on her behalf by People for the American Way. The addendum indicates that while Gonaver will abide by the oath, she objects to the compulsion in signing it. It concludes: "as a Quaker, in order to sign the oath in good conscience, I must also state that I do not promise or undertake to bear arms or otherwise engage in violence, and I have been assured by CSU that my oath will not be construed to require me to do so."

A joint press release by the University and PFAW says: "CSU is committed to working with individual employees to accommodate their religious beliefs in order to allow them to sign the oath," so long as the arrangement "does not undermine or qualify the oath." (See prior related posting.) [Thanks to Blog from the Capital for the lead.]

Canadian Provincial AG Again Considering Charges Against FLDS

Despite recommendations by two earlier special prosecutors that charges not be filed until the law is clarified, the Canadian Press reported yesterday that British Columbia Attorney General Wally Oppal is appointing yet another special prosecutor to determine whether polygamy and sexual abuse charges should be brought against members of the FLDS community in Bountiful, B.C. One of the children taken into custody by Texas officials after their raid on an FLDS compound was a teen age girl from Bountiful. Attorney Terrence Robertson has been appointed to the special prosecutor position. (See prior related posting.)

Consent Judgment Entered In Louisiana Gideon Bible Case

A Consent Judgment (full text) has been entered by a Louisiana federal district court in Roe v. Tangipahoa Parish School Board, (ED LA, May 28, 2008). The decree concluded that distribution of Gideon Bibles at Loranger Middle School violated the Establishment Clause. It ordered school officials "to refrain from allowing, participating in and/or encouraging the distribution of Bibles, or other religious materials, to elementary school children within the jurisdiction of the Tangipahoa Parish School System, on school property." It also awarded plaintiffs nominal damages and attorneys' fees. Yesterday's Advocate reported on the court's action. The consent decree means that school officials will not appeal to the 5th Circuit to try to overturn the district court's earlier decision finding an Establishment Clause violation. (See prior related posting).

Interview With Head of Saudi Virtue Commission Published

The Arabic International Daily Asharq Alawsat yesterday published a rare interview with Sheikh Ibrahim Al-Ghaith, head of Saudi Arabia's Commission for the Promotion of Virtue and Prevention of Vice. Al-Ghaith gave this summary of the Commission's work in 2006:

The presidency of the commission conducted more than 47,500 awareness and guidance programs that consisted of symposiums, panels, and guidance lectures and distributed more than 7,830,000 pamphlets and audio cassettes. Through its various branches and centers, the presidency of the commission arranged more than 60,940 cooperation visits and contacts. All this is within the realm of the first part of the commission's mission; namely, the promotion of virtue.

As for the second part, namely, the prevention of vice, about 416,000 cases were dealt with the number of persons involved in these cases was 434,000 individuals (that is 2% of the population of Saudi Arabia if the number of citizens and residents is over 22 million persons). The unpublicized cases that ended with pledges [not to commit the offense again] in order to protect the reputation of the perpetrator involved about 392,000 individuals, that is, about 90%. About 42,000individuals, that is, about 10% were referred to the quarters concerned. These percentages show very clearly that the purpose of the commission is to reform and correct. This is the approach that all the members of the commission take. No one is referred to the quarters concerned unless we see that such a referral is unavoidable.

The lengthy interview also covers a number of other topics including various complaints about the Commission's operations.

Court Denies Preliminary Injunction To Yoko Ono In Suit Over Anti-Evolution Film

Yesterday in Yoko Ono Lennon v. Premise Media Corp., (SDNY, June 2, 2008), a New York federal district court refused to grant a preliminary injunction to Yoko Ono in her copyright infringement suit over use of a 15-second excerpt from a John Lennon song in the film "Expelled: No Intelligence Allowed". Yesterday's International Herald Tribune and Wall Street Journal Law Blog both report on the decision relating to music and lyrics from the song "Imagine". The movie claims academic suppression of supporters of Intelligent Design theory. In denying the preliminary injunction, the court held that defendants are likely to succeed on their "fair use" defense. (See prior related posting.)

Scalia Addresses Orthodox Jewish Group On Church-State Issues

The New York Sun reports on a speech given Sunday night by Justice Antonin Scalia to the annual dinner of the Agudath Israel of America. He said that the Constitution should not be read to "banish the Almighty from the public forum." He also complained about the Supreme Court's recent rulings that government cannot favor religion over non-religion, saying that this does not, represent American tradition. Extensive photos of the event are available on Yeshiva World News. An audio recording of Scalia's full speech is available online from JBlog.Central.

Trial Judge Orders FLDS Children Released, Subject to Restrictions

In San Angelo, Texas, Judge Barbara Walther signed an order this morning allowing mothers of around 450 FLDS children to take the children back from shelters across the state at which they were being held in state custody. Today's San Angelo Standard-Times reports that the order places substantial restrictions on the parents and children while the Department of Family and Protective Services carries out an investigation of alleged sexual abuse on the YFZ Ranch. The order prohibits the children from leaving the state, requires parents to keep DFPS informed of their address and permits state officials to make unannounced visits any day between 8 a.m. and 8 p.m. The court also granted an emergency stay of its order as to a 16-year old girl who is the daughter of FLDS leader Warren Jeffs. A separate arrangement with tighter restrictions is being negotiated in her case.

UPDATE: The full text of Judge Walther's order is now available online. Also today, according to the Standard-Times, FLDS spokesman Willie Jessop said that FLDS policy will now be to bar any girl from marrying who is not of the legal consent age in the state where she lives. The group will counsel members against such marriages.

Danish Embassy In Pakistan Bombed, Apparently Over Muhammad Cartoons

AFP reports that today a suicide bomber blew up a car outside the Danish embassy in Islamabad, Pakistan, killing 8 and wounding 30. While there was no immediate claim of responsibility, authorities say it was likely linked to caricatures of the Prophet Muhammad that were originally published in Danish newspapers in 2005. Osama bin Laden and his deputy Ayman al-Zawahiri have urged attacks on Danish targets in retaliation for the cartoons.

5th Circuit Rules In Favor of Odinist Prisoner

The U.S. 5th Circuit Court of Appeals last week reversed a district court's grant of summary judgment and remanded the free exercise and RLUIPA claims of a Texas prisoner who practices the Odinist/Asatru faith. In Mayfield v. Texas Department of Criminal Justice, (5th Cir., May 30, 2008), the court first held that the 11th Amendment does not bar declaratory and injunctive relief against prison officials. The court then concluded that disputed issues of fact remain that could lead to plaintiff''s successful challenge of TDCJ's policy that prevents Odinists from assembling for religious services in the absence of an outside volunteer and its policy that prevents Odinists from personally possessing runestones and accessing rune literature .

Recent Articles Of Interest

From SSRN:

• Ran Hirschl, The Theocratic Challenge to Constitution Drafting in Post-Conflict States, (William & Mary Law Review, Vol. 49, No. 4, 2008 ).
• Catherine J. Ross, Children and Religious Expression in School: A Comparative Treatment of the Veil and Other Religious Symbols in Western Democracies, (May 25, 2008).
• Vincent Martin Bonventre, The Fall of Free Exercise: From 'No Law' to Compelling Interests to Any Law Otherwise Valid, (Albany Law Review, Vol. 70, No. 4, 2007).
• Thom Brooks, The Capabilities Approach, Religious Practices, and the Importance of Recognition, (May 27, 2008).
• Samuel Moyn, Jacques Maritain, Christian New Order, and the Birth of Human Rights, (May 1, 2008).
• John E. Taylor, Why Student Religious Speech is Speech, (West Virginia Law Review, Vol. 110, No. 1, 2007).

From SmartCILP:

• Phillip C. Aka, Assessing the Constitutionality of President George W. Bush's Faith-Based Initiatives, 9 Journal of Law In Society 53-110 (2008).
• Symposium. Fifteenth Annual Society of Catholic Social Scientists Meeting. 47 Journal of Catholic Legal Studies 1-190 (2008).

Christian Students' Suit Against Washington School Settled

Alliance Defense Fund announced last Thursday that it had reached a settlement with Washington state's East Valley School District in a suit ADF had filed in March challenging East Valley High School's refusal to allow a group of Christian students to meet in an empty room during lunch hour. (See prior posting.) The Notice of Voluntary Dismissal says that school officials have decided to allow the students to meet on the same terms as other groups. The school also changed its policy that prohibited “[r]eligious services, programs or assemblies . . . in school facilities” so that it clearly applies only to school-sponsored religious programs not to private religious speech.

Preachers Told Not To Proselytize In Muslim Area of British City

London's Daily Mail today reports that two Christian preachers say the West Midlands Police in the British city of Birmingham violated their freedom of expression protected by the Human Rights Act. A Muslim police community support officer ordered the preachers to stop handing out Bible extracts in a Muslim area of the city. He told Americans Arthur Cunningham and Joseph Abraham that it was a hate crime to try to convert Muslims to Christianity. The preachers are demanding an apology and compensation, or else they threaten to sue. West Midlands police say the officer acted with good intentions in diffusing a heated argument between two groups of men. The incident arises as some are expressing increased concern over supposed Islamic "no-go areas."

Court Dismisses Free Exercise Claims Against Private Actors

In Palm v. Sisters of Charity Health System, 2008 U.S. Dist. LEXIS 42287 (D ME, May 29, 2008), a Maine federal magistrate judge recommended dismissal of a claim that doctors were discriminating against believers in the "Bible Code" when they involuntarily committed plaintiff to a private hospital. The court said that claims of a conspiracy to violate free exercise rights brought under 42 U.S.C. 1985(3) and 42 U.S.C. 1986, as well as civil rights claims under 42 U.S.C. 1983, should be dismissed because defendants are not state actors.

Kuwait MPs Protest Women Cabinet Members Not Wearing Headscarves

AP reported yesterday that nine Islamic members of Kuwait's newly-elected Parliament walked out in protest when two women Cabinet members being sworn in were not wearing headscarves or the long dresses that Islamists say are religiously required. The nine men returned after Modhi al-Homoud and Nouria al-Subeih took their oaths of office. Now 24 of the 50 members of Kuwait's Parliament are religious hard liners.

Saudi Law Could Sentence Man To Death For Profanity

The Los Angeles Times reported last week that in Jidda, Saudi Arabia, a Turkish barber who cuts hair in the city has been in jail for 13 months for using a profanity that takes God's name in vain. Sabri Bogday cursed during an argument with a neighbor. The neighbor reported Bogday to the police. While Turkey's president Abdullah Gul has sought Bogday's release, some Saudi judges consider his offense to be heresy and infidelity, punishable by death. Other judges however treat this merely as disbelief which allows the offender to obtain release by retracting what he has said and repenting.

UPDATE: A different Turkish barber, Ersin Taze, who was arrested by Saudi authorities over a month ago for slandering the Prophet Muhammad, has been released. M&C (June 5) reports that the Turkish Ambassador to Saudi Arabia Naci Koru, said that a Saudi court dismissed the case for lack of evidence.

Times Public Editor Says Columnist Was Wrong On Obama As Apostate

Today's New York Times carries a piece by Public Editor Clark Hoyt criticizing a May 12 op-ed by Edward N. Luttwak titled President Apostate? The Public Editor wrote:

ON May 12, The Times published an Op-Ed article by Edward N. Luttwak, a military historian, who argued that any hopes that a President Barack Obama might improve relations with the Muslim world were unrealistic because Muslims would be “horrified” once they learned that Obama had abandoned the Islam of his father and embraced Christianity as a young adult.

Under “Muslim law as it is universally understood,” Luttwak wrote, Obama was born a Muslim, and his “conversion” to Christianity was an act of apostasy, a capital offense and “the worst of all crimes that a Muslim can commit.”

..... Did Luttwak cross the line from fair argument to falsehood? Did Times editors fail to adequately check his facts before publishing his article? Did The Times owe readers a contrasting point of view?

I interviewed five Islamic scholars, at five American universities, recommended by a variety of sources as experts in the field. All of them said that Luttwak’s interpretation of Islamic law was wrong.

Yuma Church Sues Over Zoning Denial

Last week in Yuma, Arizona, a federal lawsuit was filed challenging the denial of a conditional use permit to Centro Familiar Cristiano Buenos Nuevas Christian Church that wished to operate in the city's Old Town Historic Zoning District. Last Thursday's Yuma Sun reports that the permit was denied after opponents expressed concern about the impact the church would have on the redevelopment of the area. The complaint (full text) alleges: "The City of Yuma Planning & Zoning Commission denied the application because the Church, as a religious assembly, did not fit within its concept of a use that would promote economic growth in the downtown area. The Plaintiffs have brought this suit because Yuma’s denial violates the federal Religious Land Use and Institutionalized Persons Act, several provisions of the federal Constitution, and Arizona’s Religious Freedom Restoration Act." In a release on the case, Alliance Defense Fund says :"The zoning code at issue allows membership groups and theaters to locate in the district while specifically excluding religious organizations."

US Marine Removed After Proselytizing Muslims In Fallujah

The AP reported yesterday that a Marine in Iraq was removed from duty after it was disclosed that he had passed out coins promoting Christianity to Sunni Muslims in the strongly religious city of Fallujah. One side of the coin read: "Where will you spend eternity?" The other side read: "For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. John 3:16." The incident could heighten tensions over a proposed long-term security agreement between the U.S. and Iraq. Sheik Abdul-Rahman al-Zubaie criticized the Marine's actions, saying: "This event did not happen by chance, but it was planned and done intentionally. The Sunni population cannot accept and endure such a thing. I might not be able to control people's reactions if such incidents keep happening." [Thanks to Scott Mange for the lead.]

Influential Philanthropist Backing New Hebrew Language Charter School In NY

The Forward reported this week that "mega-philanthropist" Michael Steinhardt is backing a group of individuals who plan to file an application in New York City to create a Hebrew Language Academy Charter School in Brooklyn. The Steinhardt Foundation for Jewish Life will thereby lend its substantial weight to the movement to create public charter schools that teach Hebrew-language, Jewish culture and history and and acquaint students with modern Israeli society. Last year, the nation's first such school-- The Ben Gamla School-- opened in Hollywood, Florida to mixed reviews in the Jewish community. (See prior posting.)

Cases In Canada, Britain Sanction Refuals To Treat Gay Couples Equally

In M.J. v. Nichols, (Sask. Hum. Rts. Trib., May 23, 2008), the Saskatchewan Human Rights Tribunal held that a government marriage commissioner must not discriminate in performing civil marriages. The Tribunal held that a Commissioner who refused to perform a ceremony for a gay couple violated Section 12 of the Saskatchewan Human Rights Code. Awarding damages of only $2500, the Tribunal said: "it is clear that the Respondent was acting out of his genuine and sincere religious belief in refusing to perform the marriage ceremony. This is not a case where the Respondent was simply acting in a callous and calculated manner. Even though I have determined that the Respondent was not entitled to refuse to perform the marriage ceremony on the basis of his religious beliefs, I can take this into account in assessing an appropriate award." Canadian Press yesterday reported on the case.

Meanwhile in Britain, the Devon County Council has suspended the license of the Earl of Devon to use his castle for marriage ceremonies after he refused on religious grounds to permit a gay couple to hold a civil partnership ceremony there. Friday's Pink News reports that this is the first time such action has been taken under the Equality Act (Sexual Orientation) Regulations that came into effect last year.

Muslim Workers Claim Religious Discrimination Over Uniform Policy

Earlier this week, six Somali Muslim women filed religious discrimination complaints with the federal Equal Employment Opportunity Commission and the Minnesota Department of Human Rights over the uniform policy of their New Brighton, Minnesota employer, Mission Foods. Thursday's Finance and Commerce reports that the women dress in traditional Islamic robes and head coverings, and refuse to wear a new pants-and-shirt uniform, saying to do so would be inconsistent with their religious beliefs. Mission Foods is the largest producer of tortillas in the US.

French Court Annuls Muslim Marriage When Wife Is Not A Virgin As Claimed

Reuters reported yesterday that a heated debate is raging in France after a court allowed an Muslim husband to annul his marriage when he discovered that his wife was not a virgin as she had claimed to be. The husband's lawyer said that the basis for the annulment was not religious, but rather a principle in French law that treats marriage as a contract and permits an annulment "when there is an error concerning essential qualities of one of the spouses."

UPDATE: France's Justice Minister Rachida Dati has ordered a government appeal of the case, according to a June 3 Reuters report. Attorneys for both the husband and wife object, but Prime Minister Francois Fillon said that French law should not be interpreted to allow virginity to be a "key element in consent to marry." Concern over Muslim views being incorporated into French law has been in the background of the heated debate over the ruling.

Obama Resigns From His Church After Guest Preacher Mocks Clinton

CNN reports today that Barack Obama has resigned from his Chicago church, Trinity United Church of Christ. While Obama previously distanced himself from remarks by the church's former pastor, Jeremiah Wright, he did not resign his membership until a new embarrassment. Video surfaced of a sermon delivered at the church a few days ago by a visiting Catholic priest, Rev. Michael Pfleger, a friend of Rev. Wright. In the sermon, Pfleger mocked Hillary Clinton and suggested she believed she was entitled to the presidency because she is white and the wife of a former president. Church members listening greeted the remarks enthusiastically. Obama said he was resigning with some sadness, but he did not want to have to answer for everything said in the church and does not want the church subjected to the kind of scrutiny that accompanies a Presidential campaign.

Indiana Tax Court Says Christian Campground Gets Exemption

In Cedar Lake Conference Association v. Lake County Property Tax Assessment Board of Appeals, (IN Tax Ct., May 28, 2008), the Indiana Tax Court concluded that a Christian campground was entitled to a property tax exemption because it was predominately used for religious purposes. It held that "the fact that some recreational activities may have taken place on the RV Park does not necessarily lead to the conclusion that CLCA's use of the property does not further its religious purposes." Today's Chicago Tribune reports on the decision.

School Sued After Telling Student Not To Wear Anti-Abortion T-Shirts

Today's St. Paul Pioneer Press reports on a federal lawsuit filed earlier this week on behalf of a sixth-grader who was told not to wear T-shirts carrying anti-abortion slogans in class. Claiming a violation of the student's free speech rights, the lawsuit asserts that the student is "a sincere practicing Christian" who is "compelled by his conscience and by the tenets of his religion to spread and promote his faith and its teachings, particularly with regard to abortion." The complaint says that the sixth-grader expresses his views "in a manner typical of students in the public schools — by means of slogans on shirts he wears while attending classes at Hutchinson Middle School." On eleven different occasions teachers told the student that the message on his T-shirt was not appropriate for class. In addition to a slogan, each T-shirt-- purchased from the American Life League-- carried photos of unborn fetuses. The suit was filed on behalf of the student's mother by the Thomas More Law Center.

South Carolina Passes Bill Permitting Display Including 10 Commandments and Lord's Prayer

The South Carolina legislature yesterday passed and sent to the governor for his signature H3159, that permits schools and local governments to post a Foundations of American Law and Government display described in the statute. The display includes the Ten Commandments and 12 other historical documents from the Magna Carta to Martin Luther King's "I Have a Dream" speech. It also includes the Lord's Prayer. The statute describes the historical significance of each of the documents.

Yesterday's Greenville News reports that some House members were upset that a Senate amendment removed the Pledge of Allegiance as one of the documents in the display. Senate President Pro Tempore Glenn McConnell voted against the bill fearing that inclusion of the Lord's Prayer in the display would lead to litigation. Describing the historical significance of the Lord's Prayer, the bill says: "The Lord's Prayer, used to teach people how best to seek their daily needs, is a model of philosophy and inspiration for legal and moral systems throughout the ages. In the colonies, James Oglethorpe brought debtors to freedom in our neighboring state of Georgia in remembrance of 'forgiving our debts as we forgive our debtors'."

Tennessee Federal Court Says School Endorsed "Praying Parents" Group

In Doe v. Wilson County School System, (MD TN, May 29, 2008), a Tennessee federal court ruled that Lakeview Elementary School in Mt. Juliet, Tennessee, violated the Establishment Clause when it allowed extensive use of school facilities to publicize activities of a group known as Praying Parents. The organization describes itself as "a group of Lakeview parents who meet once a month to pray for our school, faculty, staff, and children. We pray for specific needs as well as for school-related issues. We also try to provide occasional 'treats' for our faculty and staff to remind them that we are praying for them."

The court concluded that "certain practices at Lakeview Elementary School during the 2005-2006 school year did not have a secular purpose and were allowed or pursued to tacitly approve the activities of the Praying Parents, which had the primary effect of endorsing or promoting their Christian beliefs and programs at the school. In addition, the Praying Parents practices and programs at the school caused the Lakeview administrators and teachers to become excessively entangled with religion in violation of the Establishment Clause." Today's Tennessean reports on the decision. (See prior related posting.)

ACLU Sues Claiming Ohio Judge Is In Contempt For Displaying Poster

In Mansfield, Ohio, the ACLU has filed a motion in federal court to hold Richland County Common Pleas Judge James DeWeese in contempt for violating a 2002 federal court order (affirmed by the 6th Circuit) to remove a display of the Ten Commandments from his court room. Yesterday's Mansfield News Journal reports that Judge DeWeese now has a poster displayed that compares moral absolutes and moral relativism.

The Motion for an Order to Show Cause filed yesterday (full text of motion and supporting memorandum in ACLU of Ohio Foundation v. Ashbrook) says that the current poster is a list of Humanist Precepts printed next to the Ten Commandments, with a discussion of their differences. It conclude with the statement: "I join the founders in personally acknowledging the importance of Almighty God's fixed moral standards for restoring the moral fabric of this nation." Judge DeWeese says he is not in contempt because this is a different poster than the one that was previously enjoined. He told the Mansfield News Journal: It’s really about a debate of philosophies and how that affects our criminal caseloads. I put both sides up. People can make their own decisions."

Preliminary Injunction Against Illinois Moment of Silence Extended Statewide

Yesterday's Chicago Tribune reports that Illinois federal district judge Robert W. Gettleman has extended his preliminary injunction barring enforcement of Illinois' moment of silence law to all school districts in the state. In November, he had issued a preliminary injunction against one school district, Buffalo Grove. That injunction also applied to the Illinois State Board of Education, but the Board claimed it had no authority to enforce the injunction. In March the court agreed the suit could be converted into a class action against all school districts in the state. (Sherman v. Township High School Dist. 214 [LEXIS link]). Having received no objections to his March order, the court now extended its preliminary injunction statewide. Anyone with standing can now enforce the order against a school district. Plaintiff in the class action, radio talk show host Rob Sherman, however only has standing as to the Buffalo Grove district where his daughter is enrolled in school. [Thanks to Scott Mange for the lead.]

Texas Supreme Court Says State Lacked Basis For Removing FLDS Children

Today in In re Texas Department of Family and Protective Services, (TX Sup. Ct., May 29, 2008), the Texas Supreme Court agreed with the 3rd District Court of Appeals (see prior posting) that the state lacked a sufficient basis to place into Department of Family and Protective Services custody the children that it removed last month from the FLDS Ranch in Eldorado, Texas. The main case before the court involved 126 of those children and a companion case involved 13 more, but the reasoning would appear to apply to all 468 children involved. In a relatively short opinion, six justices held:

On the record before us, removal of the children was not warranted. The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders "for the safety and welfare of the child", including an order "restraining a party from removing the child beyond a geographical area identified by the court". The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede....

Justices O'Neill, Johnson and Willett in a separate opinion dissented in part, arguing that there was sufficient evidence to justify taking into custody the pubescent female children. They said "evidence indicated a pattern or practice of sexual abuse of pubescent girls, and the condoning of such sexual abuse, on the Ranch..." They argued that resistant behavior by parents and children made it difficult to fashion less intrusive remedies. However these justices agreed with the majority that there was not sufficient evidence to justify awarding custody of male children and pre-pubescent female children to DFPS. CNN reports on the decision.

In the companion case involving 13 other children, the Court issued a brief per curiam opinion reaching the same result.

The pleadings and briefs in the cases are available here and here from the Texas Suprme Court website.

British Churches and Borough Dispute Over Free Trash Pick-Up

In Britain, the Macclesfield Express reports on the controversy between local churches and the Macclesfield Borough Council over trash collection. The UK Department for Environment, Food and Rural Affairs says that its regulations require boroughs to provide free trash pick-up to places of worship. Macclesfield though has been demanding commercial rates from churches-- leading some churches to rely on members to dispose of rubbish for them. Paul Morgan, Macclesfield's Corporate Waste Manager, argued that the government regulations requiring free service are out of date, and are unclear on whether churches can be charged when their halls are used for entertainment.

Army Plans To Remove Crosses From Kosovo Base Chapel Grounds

Life Site News yesterday reported on a controversial plan by the U.S. Army to relandscape the grounds of Peacekeeper’s Chapel that serves US soldiers at Camp Bondsteel in Kosovo. Three wooden crosses outside the chapel will be replaced by a stone monument engraved with the chapel's name and the US Army Chaplain Corps crest. The change will conform to an Army regulation that bars "distinctive religious symbols, such as crosses, crucifixes, the Star of David, menorah, and other religious symbols" from being "affixed or displayed permanently on the chapel exterior or grounds." (Army Reg. 165-1, 13-3.d). As part of the project, a chapel memorial plaque for US Chaplain Gordon Oglesby who died serving in Kosovo will also be removed. The plaque violates Army policy against naming a chapel after a soldier.

Court Hears Arguments In Virginia "Division Statute" Case

Yesterday, a Fairfax County, Virginia trial court heard arguments on the constitutionality of Virginia's 1867 "Division Statute" that allows congregations to vote to separate from their parent body and retain their church property. In an earlier phase of the case, the court ruled that, if the statute is constitutional, it applies to eleven Virginia congregations that broke away from the Episcopal Church. (See prior posting.) Yesterday's Richmond Times-Dispatch reports on the arguments. William Hurd, lawyer for the diocese, argued that the post-Civil War statute was aimed at helping Virginia congregations free themselves from control by religious denominations based in the North. He argued that the requirement the court determine whether a division exists within a denomination unconstitutionally involves the court in theological determinations. Steffen Johnson, representing the break-away congregations, argued that the statute merely provides a neutral test for the court to apply to settle property disputes.

Quebec Report on Cultural Accommodation Issued

In Canada last week, Quebec's Consultation Commission on Accommodation Practices Related to Cultural Differences (also known as the Bouchard-Taylor Commission) issued its final report. (Full text of abridged report.) A May 22 press release describes a number of the recommendations relating to state neutrality and accommodation of religion:

representatives who must embody to the utmost State neutrality and maintain the appearance of impartiality that is essential to the exercising of their duties [should] be prohibited from wearing religious signs. This is true of judges, Crown prosecutors, police officers, prison guards and the president and vice-president of the National Assembly. However, teachers, civil servants, health professionals and all other government employees should be allowed to continue to wear religious signs. In keeping with the same principle of neutrality, the crucifix in the National Assembly and the reciting of prayers at meetings of municipal councils should not be permitted in a secular State....

Students who wish to wear in class religious signs such as the hidjab, kippah or turban should be able to do so. Students must not be exempted from compulsory courses in the name of freedom of religion. Educational institutions are not required to offer permanent prayer rooms.... However, it is in keeping with the spirit of adjustment to authorize for the purpose of prayer the use of temporarily unoccupied rooms.

In response, according to the Montreal Gazette, last week the National Assembly voted unanimously to adopt a resolution that expresses "its attachment to our religious and historic heritage represented particularly by the crucifix in our Blue Room and our coat of arms adorning our institutions." (Full text of resolution at pg. 840). A post yesterday on Wall of Separation reviews Canadian reaction to the recommendation to remove the crucifix displayed over the speakers chair in the National Assembly. (See prior related posting.)

Canadian Court Rejects Attempt To Divert Union Dues For Religious Reasons

According to Life Site News, yesterday Canada's Federal Court of Appeals rejected an attempt by an employee of the Treasury Board of Canada to divert her union dues to charity because of her religious objections to the union's support for homosexual marriage. By a 3-0 ruling, the court affirmed the lower court's refusal to allow Catholic employee Susan Comstock to accommodate her religious objections to the stand taken by her union, the Public Service Alliance of Canada.

Australian Town Rejects Plans For Islamic School

In the Australian town of Camden, New South Wales (on the outskirts of Sydney), months of heated argument ended on Tuesday when Camden Council voted unanimously to reject a development application for a proposed 1200 student Islamic school. Camden Mayor Chris Patterson said the rejection was based on traffic concerns and the loss of agricultural land, not on religious grounds. However the heated debate that has gone on for months included an incident last November in which two pigs heads on metal stakes with an Australian flag between them were planted at the school's proposed site. Mayor Patterson said that the the Qu'uranic Society is encouraged to submit a plan for an alternative location. Meanwhile, backers of the school are planning an appeal to the Land and Environment Court. Reports on various aspects of the controversy are in The Australian, ABC and the Daily Telegraph.

Florida City Decides Not To Require Opening Prayers At Board Meetings

In Fort Walton Beach, Florida on Tuesday, City Council by a vote of 3-3 defeated a proposal that would have required every city board to begin all meetings with a prayer. Opening invocations will remain optional. The Destin Log yesterday reported that the proposal to mandate an invocation was introduced by Councilman Jim Hartwell after the city's Community Redevelopment Agency eliminated it opening prayer earlier this month and discussed eliminating the Pledge of Allegiance because it offended one of its members. City Council on Tuesday also directed staff to draft an ordinance requiring all city meetings to be opened with the Pledge of Allegiance, but not requiring board members to recite it.

AU Wants IRS To Investigate Washington Religious Group

Americans United for Separation of Church and State in a release yesterday urged the Internal Revenue Service to investigate a Tacoma, Washington non-profit religious group, Christian Businessmen’s Connection. Last week the group hosted the Republican candidate for governor of Washington, Dino Rossi. At the event, CBC's president, Dwight Mason, prayed for Rossi. He then told members that fund-raising envelopes for Rossi were on their tables. Under the Internal Revenue Code, non-profit organizations are precluded from involvement in political campaigns.

Cert. Denied In Case Interpreting RLUIPA "Equal Terms" Provision

The U.S. Supreme Court today denied certiorari in Lighthouse Institute for Evangelism v. Long Branch, NJ, (Case No. 07-1111). (Order List.) In the case, the 3rd Circuit below held, in a 2-1 decision, that the "equal terms" provision of Religious Land Use and Institutionalized Person Act (Sec. 2(b)(1)) does not require a church to show that a "substantial burden" has been been placed on its religious exercise, but merely to show that it was treated worse than a secular organization that has a similar negative impact on the aims of the land-use regulation at issue. (See prior posting.)

California High Court Hears Case On Religious Exception To Civil Rights Law

The California Supreme Court this morning heard oral arguments in Northcoast Women's Care Medical Group v. Superior Court. In the case, a California appellate court held that two doctors being sued by a lesbian woman for refusing to perform intrauterine insemination on her could assert their constitutional right to free exercise of religion in defending against her discrimination charges. (See prior posting.) Reporting on today's arguments, the San Diego Union-Tribune said that the Court's seven justices questioned both sides about the circumstances under which there should be a free exercise exemption from state civil rights laws. The defendants in the case also argue that the main reason they did not treat plaintiff Guadalupe Benitez was that they refuse to perform the procedure for any unmarried couple.

UPDATE: An article in Thursday's issue of The Recorder says that "the court gave every indication during oral arguments ... that it would rule that doctors can't invoke their religious beliefs to deny gays and lesbians medical services."

Recent Prisoner Free Exercise Cases

In Adegbuji v. Green, (3d Cir., May 19, 2008), the U.S. 3rd Circuit Court of Appeals agreed with the district court that the free exercise rights of an INS detainee were not violated when he was limited to attending only one religious class or service per week while in custody.

In Tayr Kilaab Al Ghashiyah v. Litscher, (7th Cir., May 15, 2008), the U.S. 7th Circuit Court of Appeals upheld the lower court's dismissal of three sets of free exercise claims by a prisoner-- that he was not permitted to use only his religious name when filing grievances and sending mail, that he could not obtain food that complied with his religious requirements, and that he was denied access to religious property and the use of prayer oil.

In Harris v. Alves, 2008 U.S. Dist. LEXIS 40180 (ED WA, May 19, 2008), a Washington federal district court rejected a prisoner's free exercise and RLUIPA challenges to a prison rule that did not allow him to leave his desk to pray during a computer class, but instead limited him to praying silently at his desk, or praying before or after class or during the class break. The court also rejected an equal protection complaint regarding the denial of plaintiff's right to change his work schedule and to take certain educational classes.

In Schipke v. Chapman, 2008 U.S. Dist. LEXIS 40287 (ND TX, May 19, 2008), a Texas federal district court rejected a federal prisoner's religious objection to prison authorities collecting a DNA sample from her as required by federal law.

In Waff v. Reisch, 2008 U.S. Dist. LEXIS 39710 (D SD, May 14, 2008), a federal magistrate judge refused an indigent pro se prisoner's request for appointed counsel in his lawsuit challenging a denial of access to a kosher diet.

Texas Fears Flight If FLDS Children Are Released

In Texas, Child Protective Services lawyers have raised a new argument in their appeal to the Texas Supreme Court seeking to keep custody of children taken during a raid of the FLDS compound in Eldorado. Today's Houston Chronicle reports updated court filings argue that if the children are released to their parents, the families might flee to FLDS settlements in Utah and Arizona, taking the children outside the reach of Texas courts. (See prior related posting.)

Former Library Employee Brings Free Exercise Suit Over Harry Potter Event

In Cape Girardeau, Missouri yesterday, the ACLU filed suit on behalf of library-assistant Deborah Smith who was suspended for ten days without pay after she refused to work at an event that she said violated her religious beliefs. After she returned, her duties were made more labor intensive. This led her to resign for medical reasons. St. Louis Today reports that Smith refused to take part in a July 2007 event at the Poplar Bluff Public Library that was held to mark the release of the book "Harry Potter and the Deathly Hallows." Library employees were expected to dress as witches and wizards at the event. Smith, a Southern Baptist, believes that the Harry Potter books popularize witchcraft and practice of the occult. Smith's federal lawsuit-- filed after the EEOC and the Missouri Commission on Human Rights upheld her right to sue-- claims that the library's action against her violated her right to the free exercise of religion.

Philadelphia Boy Scouts Sue To Keep Free Space

In Philadelphia, the Cradle of Liberty Council of the Boy Scouts has sued the city in an attempt to remain in their city-owned headquarters without paying market-rate rents. For the last 80 years, the Boy Scouts have leased a building from the city for $1 per year. However Philadelphia's 1982 Fair Practices Ordinance bars the city from supporting groups, like the Boy Scouts, that discriminate, and the city had ordered the Scouts to pay $200,000 per year beginning June 1. The Scouts, under their national policy, exclude openly gay boys from membership. They also ban atheists from membership. The Washington Post and Philadelphia Inquirer report that the scouts federal lawsuit filed last Friday claims that the city leases space for nominal rent to around 100 other groups with restrictive membership criteria, including the Roman Catholic Church of the Maternity of the Blessed Virgin Mary and Zion Baptist Church. [Thanks to Bob Ritter for the lead.] [Updated]

Christian School Loses Non-Profit Status

BNA's Daily Report for Executives [subscription required] reports that the IRS has revoked the non-profit tax eligibility of Heritage Christian Schools for Children, Stone Mountain, Ga. The determination made public in IRS Announcement 2008-49 [BNA subscription required] is scheduled for publication today in Internal Revenue Bulletin 2008-21.

Church Challenges Anchorage, Alaska Zoning Rules

In Anchorage, Alaska last week, the Rabbit Creek Community Church filed a federal lawsuit against the city charging that the city's land use code discriminates against religious groups. KTUU News reported yesterday that under the city's zoning laws, only churches are required to obtain additional review and approval before building in or near a residential neighborhood. For years, the city has refused to allow Rabbit Creek Community Church to expand its present building, citing safety, drainage, water and buffering issues.

Indian Artist Cleared of Charges From Painting of Nude Goddess

In India earlier this month, a 92-year old artist, Maqbool Fida Husain, was cleared of charges that his painting Bharat Mata (Mother India) is obscene and hurts public sentiments. The painting depicts the Hindu goddess as a nude woman. Both the London Times and the Times of India reported on May 9 on quashing of the indictments in three cases. Complaints against Husain, who is sometimes known as the Picasso of India, were filed by right wing Hindu groups. In a strongly worded opinion, Delhi High Court Justice Sanjay Kishan Kaul said: "A painter has his own perspective of looking at things, and it cannot be the basis of initiating criminal proceedings.... It is most unfortunate that India's new puritanism is being carried out in the name of cultural purity and that a host of ignorant people are vandalising art and pushing us towards a pre-Renaissance era." Husain moved to Dubai in 2006 after Hindu activists focused on his art work.

Catholic School Wins Temporary Injunction Against New Zoning Restrictions

In Notre Dame Academy, Inc. v. City of Suwanee, Georgia, (Super. Ct., Gwinett Co. GA, May 23, 2008), a Georgia state trial court issued a temporary injunction prohibiting the city of Suwanee, Georgia from enforcing its moratorium on accepting building or development permits. It also barred the city from adopting new special use permit requirements that had been proposed. The court found that the moratorium and proposed permit requirement infringe the religious exercise rights of Notre Dame Academy, a Catholic elementary school that intends to purchase land to relocate its school to Suwanee. Imposing the moratorium on the religious school, the court said, would violate several provisions of the Religious Land Use and Institutionalized Persons Act. Alliance Defense fund issued a press release on Friday discussing the decision.

Italian Museum Under Pressure For Display of Kipppenberger's Crucified Frog

In Italy, according to ANSA yesterday, politicians as well as clerics are calling for Museion, a modern art museum in Bolzano, to remove its display of a sculpture by late German artist Martin Kippenberger. The statue, part of Kippenberger's "Fred the Frog" series, is a pop-eyed frog crucified on a cross holding a mug of beer. Bolzano Province President Luis Durnwalder called the statue ''an offense'' said it should be removed from display while further discussion over what to do with it takes place. He said that the area population, which is overwhelmingly Catholic, may find the piece to be a ''provocation.'' Local bishop Wilhelm Egger says the display has hurt the religious feelings of museum visitors. Cath News carries a photo of the offending sculpture.

Recent Scholarly Articles on Church-State, Law and Religion

From SSRN:

• Robert C. Blitt, How to Entrench a De Facto State Church in Russia: A Guide in Progress, (2008).


• Ali Ali Kahn, The Immutability of Divine Texts, (Brigham Young University Law Review, Forthcoming).


• Samuel Wolfe Calhoun, May the President Appropriately Invoke God? Evaluating the Embryonic Stem-Cell Vetoes, (Rutgers Journal of Law and Religion, Forthcoming).


• Kristi L. Bowman, Public School Students' Religious Speech and Viewpoint Discrimination, (West Virginia Law Review, Vol. 110, No. 1, 2007).


• Andy G. Olree, The Continuing Threshold Test for Free Exercise Claims, (William & Mary Bill of Rights Journal, Forthcoming, 2008).


• Keith S. Blair, Praying for a Tax Break: Churches, Political Speech and the Loss of Section 501(C)(3) Tax Exempt Status, (Denver University Law Review, Forthcoming).

Israeli Conversion Authority and Religious Courts Are In Disarray

In Israel last week, the Prime Minister's Office announced that at the end of June it would not renew the employment contract of 75-year old Rabbi Haim Druckman, head of the State Conversion Authority. Last Thursday's Jerusalem Post reported that the government said the reason for its action was Druckman's advanced age. Normal civil service retirement age is 67. However Druckman says the move is in response to pressure from the ultra-Orthodox haredi rabbis who control the High Rabbinical Court. Earlier this month, that Court issued a controversial ruling tht called into question thousands of conversions previously performed by Druckman, or overseen by him. (See prior posting.) [Thanks to Religion and State In Israel for the lead.]


Meanwhile, Haaretz reported last week that a comptroller's review of the speed and quality of judicial proceedings in Rabbinic courts in Tel Aviv and Petah Tikva during 2007 found significant problems. Hearings were postponed in 26% of cases because of the absence of judges. There were delays in granting a "get" (divorce decree) in 17% of cases. The Peta Tikva court was without an administrator because the judges objected to the fact that a woman had been appointed to the position.

Muslims, Sikhs In Pakistan Feud Over Proximity of Houses of Worship

In Lahore, Pakistan, tension has arisen between Sikhs and Muslims over the location of their respective places of worship. Pakistan's Daily Times today reports that Auqaf Department rules provide that places of religious worship should be at least 200 feet apart to avoid interfaith clashes. A shopkeeper at the Naulakha Bazaar has recently set up a mosque on the roof of his shop. It is only 25 feet away from the Gurdwara Shaheed Singh Singhrian. The shopkeeper failed to obtain a No Objection Certificate from authorities for the mosque. Raja Ashfaq, president of Naulakha Bazaar, threatened to burn down the gurdwara if the mosque is closed. Meanwhile Jammu and Kashmir State Property Pakistan that owns the Naulakha Bazaar said the shopkeeper has violated its rules by modifying the structure to build the mosque.

Beaumont, Texas Noise Ordinance Suit Settled

Alliance Defense fund announced on Friday the settlement of a federal lawsuit against Beaumont, Texas filed after the city's arrest in 2005 of two Christians preaching and carrying signs denouncing homosexuality. The two, preaching on a public sidewalk, were charged with violating the city's noise ordinance after police told them that their activity was upsetting people. In the settlement, the city agreed to amend the noise ordinance to include a decibel level and also agreed to provide police training in First Amendment rights.

Michigan Appellate Court Holds State Recognizes Ministerial Exception

In Weishuhn v. Diocese of Lansing, (MI Ct. App., May 22, 2008), a Michigan state court of appeals held that the "ministerial exception" exists under Michigan law to bar discrimination claims under the state's Elliott Larsen Civil Rights Act. According to the court, the doctrine "precludes subject matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees." The court remanded the case to the trial court for it to determine whether plaintiff, a mathematics and religion teacher at St. Mary’s Elementary School in Mount Morris, Michigan, was a "ministerial" employee. The trial court was ordered to consider whether the teacher had primarily religious duties of religious significance, whether her position was primarily religious and whether her functions were essentially liturgical. In the case, teacher Madeline Weishuhn alleges retaliatory termination.

Santeria Priest Seeks Records On Florida Police Raid

In Coral Gables, Florida, a Santeria priest is threatening to file suit if the city continues to refuse his public records request to obtain documents relating to a June 8, 2007 police raid on a ceremony taking place in a private home. The ceremony, being performed by Santeria priest Jesús Suarez, includes the sacrifice of several animals. It appears that neighbors complained to police that they could hear the animals suffering. Yesterday's Miami Herald reports that about two dozen officers came to the home with guns drawn and held participants in the ceremony against their will for several hours. Ernesto Pichardo, president of the Church of Lukumi Babalu Aye, hired an attorney to file the request to determine whether the raid violated the religious freedom of Santeria members. Pichardo successfully challenged Hialeah, Florida's ban of animal sacrifice in the US Supreme Court in 1993.

Egyptian Film Maker Faces Hurdles In Producing Movie On Muslim View of Jesus

An Egyptian film maker, Mohammad Aziziah, is facing multiple legal hurdles as he plans to produce a film titled The Arab Messiah. Gulfnews today reports that the film will reflect the Quranic view that instead of being crucified, Jesus was raised alive to heaven. In the planned movie, Jesus will speak Arabic and be portrayed by an Arabic actor. Najeeb Gabriel, who is an adviser to Egypt's Coptic Christian Pope Shenouda, said that he plans to file suit to stop production of the movie or to have the script changed to reflect the Christian view of Jesus death. Meanwhile Ebrahim Al Fayoumi, the Secretary General of Al Azhar's Islamic Research Centre, said that his organization will ban the move. The Centre has authority under Egyptian law to license religious dramas. It bans all movies that present a personal portrayal of prophets on the ground that this detracts from prophets' spiritual importance.

Clinton Speaks At Puerto Rican Church

Presidential candidates continue the practice of speaking from church pulpits on Sunday mornings, despite IRS concerns over implied political endorsements by non-profit organizations. Yesterday, according to the AP, Hillary Clinton "offered a spiritual defense for continuing her presidential campaign" as she spoke to the congregation at the Pabellon de la Victoria evangelical church in Hormigueros, Puerto Rico. The appearance began with an hour of religious singing and dancing led by a band and chorus. It is unclear whether the church also invited other candidates to appear.

Presidential Proclamation, Radio Address Mark Memorial Day

Last week, the President issued his "Prayer for Peace, Memorial Day 2008" Proclamation (full text), which reads in part:

In respect for their devotion to America, the Congress, by a joint resolution approved on May 11, 1950, as amended (64 Stat. 158), has requested the President to issue a proclamation calling on the people of the United States to observe each Memorial Day as a day of prayer for permanent peace and designating a period on that day when the people of the United States might unite in prayer. The Congress, by Public Law 106-579, has also designated the minute beginning at 3:00 p.m. local time on that day as a time for all Americans to observe the National Moment of Remembrance.

While President Bush, in his Saturday radio address (full text) called on Americans "to honor the sacrifices of those who have served you and our country," one small fringe group disagreed. On Friday, for about an hour before a Memorial Day service in Stuart, Florida's Veterans Memorial Park, members of the anti-gay Topeka, Kansas Westboro Baptist Church carried signs with slogans such as "God killed your sons." Protester Ben Phelps told TCPalm : "This country has made an occupation ... of worshipping these dead soldiers.... In fact, the only thing they're fighting for is for (homosexuals) to marry."

Amish Refuse To Follow Sewage Disposal Code

In Ebensburg, Pennsylvania, members of the small Swartzentruber Amish community are at odds with county officials over handling of waste from two out houses at the community's school. Sunday's Mansfield (PA) News Journal reports that the Amish group has religious objections to complying with code requirements that the waste be collected in a holding tank and disposed of by a certified sewage hauler. Instead, the Amish group collects the waste in plastic buckets and dumps it on their fields. Andy Swartzentruber, on whose land the outhouses sit, and school elder Sam Yoder, have each been fined $500 for violating the state sewage disposal law. Yoder says that he will go to jail rather than abide by the sewage disposal requirements. The Cambria County Sewage Enforcement Agency and other officials are trying to work out a compromise with the religious group.

Humanitarian Group Is Religious Organization Under Title VII

In Spencer v. World Vision, Inc., 2008 U.S. Dist. LEXIS 40938 (WD WA, May 21, 2008), a Washington federal district court was called on to determine whether World Vision, Inc. is a "religious association" under Title VII of the 1964 Civil Rights Act. Applying a 9-factor test, the court decided that the nonprofit Christian humanitarian organization at issue meets the requirements for a religious organization and thus, under 42 USC Sec. 2000e-1(a) is exempt from Title VII's ban on religious discrimination in employment.

High Schooler Wants To Wear Eagle Feathers On Graduation Robe

In Pembroke, North Carolina, high school senior Corey Bird wants to wear eagle feathers on his graduation gown to honor his grandparents. Friday's Fayetteville (NC) Observer reports that Bird, whose father is Lumbee and Sisseton-Wahpeton Sioux, was told by Purnell Swett High School Principal Antonio Wilkins-- himself a Lumbee-- that school policy bans the wearing of messages, signs and the like on caps and gowns. The legal director for the ACLU of North Carolina says, however, that Bird has a good case for wearing the feathers as an exercise of his religious freedom. (Faytetteville Observer).

UK Will Not Prosecute Anti-Scientology Picket

Friday's London Guardian reports that Crown Prosecution Service has decided it will not prosecute a 16-year old boy for carrying a sign outside the headquarters of the Church of Scientology earlier this month accusing it of being a "dangerous cult". City of London police had issued a summons to the boy after he refused to put down the sign. Police claimed he violated the Public Order Act (as amended by the Racial and Religious Hatred Act of 2006) by inciting religious hatred. The Prosecution Service decided however, that the sign was neither "abusive or insulting" and therefore did not violate the law.

Federal Court Rejects Removal Of State Zoning Challenge

Friday's Aspen (CO) Times reports on the long battle by Grace Church in Emma, Colorado to build a new building on Highway 82. In 2005, Pitkn County commissioners denied the church's application, but then reversed their decision after the church filed a federal lawsuit under the Religious Land Use and Institutionalized Persons Act. Commissioners feared that otherwise the court would allow an even larger church building to be build. Neighbors of the new location, however, unhappy with the Commissioner's reversal, filed a lawsuit in state court claiming the commissioners failed to hold a public hearing on the project and violated the county's land-use code. In Emma Caucus Inc. v. Board of County Commissioners of the County of Pitkin, (D CO, May 21, 2008), the Colorado federal district court in which the RLUIPA case had been filed rejected Grace Church's attempt to remove the state court challenge to federal court. The district court said:

the state court complaint discloses that it has nothing to do with federal law, much less "arise under" federal law. It is a common-variety action to review an administrative zoning decision on the ground that the decision was an abuse of discretion, was procedurally defective, and failed to observe state and local laws concerning land use.

8th Circuit Finds No Standing In Parochial School Busing Case

In Pucket v. Hot Springs School District, (8th Cir., May 23, 2008), the U.S. 8th Circuit Court of Appeals held that plaintiffs lack standing to pursue their 1st and 14th Amendment challenge to a South Dakota school district's temporary termination of busing of students to Bethesda Lutheran School. Before a 2003 change in state law, the school district lacked statutory authority to provide busing to private and parochial schools. After the change in the law, plaintiffs never actually requested the school district to resume busing. The decision affirms the district court's dismissal without commenting on the merits of the underlying claim which had in part been reached by the lower court. (See prior posting.)

Midwife For Pennsylvania Amish Wins Reversal of Charges Against Her

In Goslin v. State Board of Medicine, (PA Commn. Ct., May 23, 2008), a Pennsylvania appellate court has reverse an order issued by the State Board of Medicine that had barred midwife Diane Goslin from continuing to practice as a midwife and had imposed a civil monetary penalty. Goslin has delivered babies for the Amish community for 24 years, but has never obtained a license because she is not a registered nurse as required by state law. (See prior posting.) The Commonwealth Court held that the practice of midwifery is not the practice of medicine. In connection with charges that Goslin violated the state's regulation of midwives, the court held that Goslin did not receive adequate notice of the charges being brought against her. The Medical Board charged her under statutory provisions relating to nurse-midwives, while in fact she was being charged under a different provision of law prohibiting the practice of midwifery without a state certificate by those who are not registered nurses. Yesterday's Philadelphia Inquirer reporting on the decision pointed out that the court left undecided whether non-nurses can still obtain certificates to practice as midwives in Pennsylvania.

California City Will Vote On Adopting "In God We Trust" As Motto

A California city is moving to adopt "In God We Trust" as its official motto. Friday's Fresno (CA) Bee reports that Porterville, CA has a measure on its June 3 ballot that calls for adopting the motto. The motto is already unofficially on display in city council chambers, but its official adoption will place it on city letterhead as well. Council Member Eddie Hernandez who supports the proposal said: "We need to bring faith back into our community. We need to show we believe in a higher being." [Thanks to Scott Mange for the lead.]

Texas Appeals In FLDS Custody Case; 12 Children Released

The Deseret News reports that on Friday the state of Texas filed an appeal with the Texas Supreme Court asking it to stay the order of a state appellate court and keep over 450 FLDS children in foster care pending appeal of the lower court's decision to return the children to their parents. The Department of Family and Protective Services filed a Motion for Emergency Relief and a Petition for Writ of Mandamus. The state argued not merely that returning the children would subject them to risk of harm, but also that until DNA testing is complete the state cannot properly match children to the correct parents. In their Response, counsel for the parents said that the identification argument is a "red herring".

Meanwhile, according to the AP, in San Antonio on Friday the state reached an agreement with attorneys for three FLDS families to temporarily return their children to them. The agreement came after the families filed lawsuits in Bexar County seeking release of their children. The families will remain in the San Antonio area under state supervision.

As individual hearings continue in the cases in San Angelo, the media gave a good deal of attention to a photo introduced by the state in one of the hearings. It shows now-arrested sect leader Warren Jeffs romantically kissing a 12-year old girl. Today's San Angelo Standard-Times reports that the evidence was introduced in the hearing on custody of an infant who is the niece of the young girl pictured with Jeffs. [Thanks to Melissa Rogers for the lead.]

Some Jewish Supporters Defend Rev. Hagee's Holocaust Remarks

While John McCain has publicly distanced himself from Rev. John Hagee over Hagee’s remarks about the Holocaust (see prior posting), according to today's Washington Times some Jewish supporters of Hagee have come to his defense. Rabbi Aryeh Scheinberg, an Orthodox rabbi from San Antonio, said that Hagee "interpreted a biblical verse in a way not very different from several legitimate Jewish authorities…. Viewing Hitler as acting completely outside of God's plan is to suggest that God was powerless to stop the Holocaust, a position quite unacceptable to any religious Jew or Christian." And David Brog, the Jewish executive director of Hagee’s Christians United for Israel, said: "This is a legitimate effort to grapple with the age-old question of why God allows evil in the world."

Massachusetts Church Sues Over Parking Lot Requirement

An historic church in Lanesville, Massachusetts last Monday filed a federal lawsuit against the city's zoning board which is refusing to allow the church to add a multi-use addition onto its original post-Civil War building. Friday’s Gloucester (MA) Daily Times provides details. At issue is whether the Orthodox Congregational Church of Lanesville will need to provide on-site parking as part of its proposed project. The city's zoning ordinance excludes "places of worship" from the parking requirement. However zoning officials say that the addition should be classified as a multi-purpose function hall that requires parking. The lawsuit alleges religious discrimination, violation of the church's free exercise and free expression rights and denial of equal protection of the laws.

South Carolina Legislature Authorizes "I Believe" License Plates

On Thursday the South Carolina Senate concurred with the House and sent to the governor for his signature S. 1329, a bill authorizing the state to produce specialty license plates that "contain the words 'I Believe' and a cross superimposed on a stained glass window." The American Jewish Congress has urged Gov. Mark Sanford to veto the bill, saying it singles out one faith for special treatment. Reporting on this, The State on Thursday says that proponent argue this merely gives individuals a choice to express their personal religious beliefs on their own automobiles. The Charlotte Observer reported on Friday that House Speaker Bobby Harrell said he believes a House amendment removes constitutional problems. The enacted version provides that the issuance of the plates must comply with 2006 legislation (SC Code of Laws, Sec. 56-3-8100) requiring the Department of Motor Vehicles to have 400 prepaid orders, or an advance of $4000 from a private group, before issuing specialty plates. [Thanks to Scott Mange for the lead.]

McCain Breaks With Hagee Over Controversial Sermon From 1990's

A number of newspapers, including the New York Times and the Washington Post, reported yesterday that Republican presidential candidate John McCain has formally rejected the earlier endorsement he received from controversial televangelist Rev. John C. Hagee. Hagee, who is pastor of Cornerstone Church in San Antonio, was also a founder of Christians United for Israel. McCain's statement came after an audio recording of a Hagee sermon from the 1990's became available in which Hagee said that the Holocaust was part of God's plan foretold in the Old Testament Book of Jeremiah. This disclosure followed a series of others about controversial Hagee statements. About the same time that McCain announced his break, Hagee issued a statement withdrawing his endorsement of McCain and ending any active role in the campaign in order to prevent his remarks being used politically against McCain. Newsweek has the full text of both McCain's and Hagee's statements.

Later yesterday McCain also rejected the endorsement of Ohio preacher Rod Parsley who has said that Islam is an inherently violent religion. (AP). An article published in Mother Jones in March outlines some of Parsley's other anti-Muslim remarks.

British Tribunal Finds Religious Discrimination By Christian Charity Group

In Britain last week, an Employment Tribunal in Abergele (Wales) held in two cases that a Christian charity, Prospects for People With Learning Disabilities, violated Britain's Employment Equality (Religion or Belief) Regulations 2003. The British Humanist Association issued a release discussing the facts:

Prospects, a Christian charity which receives public money for its work with people with learning disabilities, and which had previously employed a number of non-Christian staff and volunteers ... in 2004 ... began recruiting only practising Christians for almost all posts, and told existing non-Christian staff that they were no longer eligible for promotion.

The Equality Regulations have an exception where a particular religion or belief is a genuine occupational requirement. BHA Chief Executive Hanne Stinson said: "The Tribunal’s judgment makes clear that a court will make an objective assessment of what a 'religious ethos' is, and states that it is not for the religious organisation itself to define its ethos, where this does not accord with reality on the ground." The cases are Sheridan v. Prospects for People With Learning Disabilities, (May 13, 2008) and Hender v. Prospects for People With Learning Disabilities, (May 13, 2008). Today's Reading Evening Post discusses the allegations in each of the cases. Mark Sheridan was a manager who objected to being forced to hire only Christians. Louise Hender claimed she was denied a promotion because she was not a Christian.

South Carolina Legislature Passes Public Invocation Act

A news release from Alliance Defense Fund reports that on Wednesday the South Carolina legislature passed the South Carolina Public Invocation Act, S. 638. The law provides that state or local governing bodies may open their sessions with prayer offered on a rotating basis by members of the body, on a rotating basis from a wide pool of the religious leaders serving established religious congregations in the local community, or by a chaplain elected by the governing body.

House of Lords Bars Suit Against Nuns on Limitations Grounds

Britain's House of Lords this week dismissed claims filed by two women and a man alleging beatings and abuse many years ago by nuns of the Poor Sisters of Nazareth. The alleged abuse took place at a Nazareth House home in Glasgow. The case, a test case for several hundred others as well, was not filed until a newspaper expose of the abuse published in 1997. Plaintiffs in Bowden v. Poor Sisters of Nazareth, (House of Lords, May 21, 2008), unsuccessfully asserted that the court should have invoked a provision in the relevant statute of limitations that allows the court to decide it is equitable to permit the suit to be brought despite the running of the limitations period. Yesterday's Aberdeen Scotland Press and Journal reported on the decision.

Iran Arrests Seven Baha'i Leaders

Canada's Metro News reports that in Iran last week, six Baha'i leaders were arrested and accused of endangering national security. A seventh had been arrested in March. A government spokesman accused them of having "connections with foreigners, especially the Zionists." Yesterday the Baha'i International Community issued a statement accusing Iran of persecuting Baha'is solely because of their faith and denying allegations that any security concerns were involved. On Wednesday, the European Union urged Iran to end its persecution of Baha'is.

Cayman Islands Constitutional Proposal Responds To Concerns of Christians

Cayman Net News today published the latest version of the proposed new Constitution being drafted for the Cayman Islands. Earlier this year, Christians in the country expressed concern over the impact of a Bill of Rights on the country's traditional Christian heritage. (See prior posting.) the latest proposals appear to respond to these concerns, saying:

• It must be clear that the Bill of Rights will not affect our Christian traditions, in particular religious instruction in schools, or prayers in schools or public places.
• It must be clear that the Bill of Rights will not apply to controversial areas such as the recognition of sex change, gay marriage, or more liberal abortion laws.
• Although freedom of religion is an essential part of the Bill of Rights, it must be clear that the Government can still ban religious practices or preaching in the interests of public safety, public order, public health or public morality.

Texas Appellate Court Says State Lacked Grounds To Take FLDS Children Into Custody

Thirty-eight mothers of FLDS children taken from the YFZ Ranch in Eldorado, Texas, have succeeded in their challenge to the taking of their children into state custody. A Texas state court of appeals today ruled that the Texas Department of Family and Protective Services "failed to meet its burden under section 262.201 of the Texas Family Code to demonstrate (1) that there was a danger to the physical health or safety of their children, (2) that there was an urgent need for protection of the children that required immediate removal of the children from their parents, or (3) that the Department made reasonable efforts to eliminate or prevent the children's removal from their parents."

In In re Sara Steed, et. al., (TX Ct. App., 3d Dist., May 22, 2008), the court said that DFPS failed to show any physical danger to boys or young girls, and as to older girls it showed only that they live among a group of people who have a pervasive system of belief that condones polygamy. It did not show that any of the specific children here were in danger from the beliefs. The court ordered the lower court to vacate its temporary orders granting sole managing conservatorship of the children to DFPS. It said it would issue a writ of mandamus if the lower court did not comply. CNN reports on the decision. (See prior related posting.)

UPDATE: The same court today issued a similar order in In re Louisa Bradshaw. et. al., a companion case posing the same issues. [Thanks to How Appealing for the lead.]

9th Circuit Oral Arguments Held In Berkeley Evolution Website Case

On May 14, the 9th Circuit Court of Appeals heard oral arguments (audio recording) in Caldwell v. Caldwell, (Case No. 06-15771). The case involves a claim by a Santa Rosa couple that a University of California, Berkeley, website titled "Understanding Evolution" was used to promote religious beliefs of groups that support evolution. (See prior posting.) Without reaching the merits, the district court court held that plaintiffs lacked standing. The Pacific Justice Institute which represents plaintiffs in the case issued a May 12 press release regarding the then-upcoming 9th Circuit arguments.

NY Federal Court Says Insufficient Facts To Apply Ministerial Exception Doctrine

In Rojas v. Roman Catholic Diocese of Rochester, 2008 U.S. Dist. LEXIS 40386 (WD NY, May 19, 2008), a New York federal district court held that at this point in the litigation it does not have enough facts to decide whether the "ministerial exception" calls for dismissal of a claim under Title VII and the New York Human Rights Law. Plaintiff Sandra Rojas-- an Hispanic Migrant Ministry coordinator-- claimed "hostile environment" employment discrimination on the basis of sex, and retaliation. The court said that at this stage it is unable to determine whether the dispute over Rojas' firing is religious in nature. Also, at this point there was no evidence that adjudication of Rojas' hostile environment claims would necessarily involve examination of religious doctrines. The court however dismissed plaintiff's retaliation claim on other grounds, with leave to replead that the retaliation involved was her dismissal.

County Employees Will Not Be Forced To Perform Same-Sex Marriage Ceremonies

While the California Supreme Court has legalized same-sex marriage (see prior posting), San Diego county will not force objecting employees to perform same-sex ceremonies. Yesterday's San Diego Union-Tribune reports that County Assessor-Recorder-Clerk Greg Smith has told the 115 employees who are deputized to conduct ceremonies to inform him if they have objections. Smith says it would not be fair to same-sex couples to have their weddings performed by someone who objects to the ceremony. County Counsel says, however, that objecting employees must have "legitimate religious or moral reasons" for refusing.

UCC Cleared By IRS In Complaint About Obama Speech At Synod

In a determination letter issued May 13 (full text) the Internal Revenue Service cleared the United Church of Christ of charges that it improperly engaged in partican political activity when Barak Obama spoke at the church's June 2007 General Synod. (See prior posting.) A UCC news release yesterday summarized the IRS findings. Obama was invited to address the Synod well before he announced his candidacy and he was invited to speak on how his personal faith impacted his public life. UCC told those attending that Obama was not there as a candidate for office. IRS also concluded that tables set up by Obama volunteers near the Synod were not authorized by UCC and were on public sidewalks outside of UCC's control.

High School Principal Resigns Over Equal Access Act Requirement

In Irmo, South Carolina, Irmo High School Principal Eddie Walker says he will resign effective at the end of the 2008-09 school year after the school district told him to allow the formation of a Gay-Straight Alliance chapter at the school. WIS-TV reports school district attorneys determined that under the federal Equal Access Act, either the club must be permitted or all non-curricular organizations would need to be banned. In a letter (full text) announcing his resignation, Walker said: "My decision to resign is a personal choice based on my professional beliefs and religious convictions. I have prayed about the decision for a period of time and I have a peace about it.... I bear no malice towards anyone involved. If the people involved at the district level had chosen not to allow the club to form I am sure the district would have been sued and ... in all likelihood ... would have lost."

Delaware High Court Refuses Review In Clergy Sex Abuse Case

The Delaware Supreme Court on Tuesday refused to accept an appeal in Whitwell v. Archmere Academy, Inc., a case in which the Superior Court upheld the statute of limitations window created by the state's 2007 Child Victim Act. (See prior posting.) The Superior Court had certified the question of law involved in its decision to the Delaware Supreme Court under Sup. Ct. Rule 41 on the basis that the issue was one of first instance in the state. The Supreme Court however declined to review at this stage the trial court's holding that no due process problem arises from changing the rules to allow a previously time-barred civil action to be filed. The case involves a suit by a victim of clergy sexual abuse against Archmere Academy and three branches of the Norbertine order. Yesterday's Wilmington (DE) News Journal reported on the case.

United Methodists Endorse Teaching of Evolution As Consistent With Theology

At its General Conference that concluded earlier this month, the United Methodist Church adopted three resolutions supporting the teaching of evolution in public schools. The National Center for Science Education reports on the United Methodists' policy statements. Petition 80839 opposes the the introduction of faith-based theories such as Creationism or Intelligent Design into the public school science curriculum. Petition 80050, as amended, declares that "science's descriptions of cosmological, geological, and biological evolution are not in conflict with theology." Finally Petition 80990 endorses The Clergy Letter Project and its programs to reconcile religion and science.