3rd Circuit Finds Prison Music Policy Does Not Violate Establishment Clause

In Young v. Beard, (3rd Cir., July 8, 2008), the U.S. 3rd Circuit Court of Appeals rejected a prisoner's free expression and Establishment Clause challenges to the Pennsylvania prison system's policy on recreational music for prisoners. After criticism of the state's prior policy that allowed independent inmate bands, the Department of Corrections changed its policy to allow only individual music playing in cells or institutional musical groups that can play at an annual talent show or special events. However inmate bands are still permitted for religious services. This was challenged by an inmate who had been a member of a secular inmate band prior to the policy change. The court held that the prior program posed legitimate security concerns, and several viable alternatives still exist for inmates to perform music. Turning to the Establishment Clause challenge, the court found that changes to the secular music program did not have the purpose or effect of advancing religion. Permitting religious bands accommodates free exercise and does not cross the line into endorsement of religion. (See prior related posting.)

Michigan Church Wins Zoning Challenge In Settlement

Alliance Defense Fund yesterday announced a settlement in Celebration Community Church v. City of Muskegon, (WD MI, filed March 2008) (full text of complaint). Celebration Church challenged the city's denial to it of a special use permit so it could use a former automobile dealership it purchased as a church. The city cited loss of property tax revenue, adverse impact on bars located nearby, and incompatibility with the surrounding area as reasons. However the Liquor Control Commission said that the church would not impact the license of an existing nearby bar. The city did not require special use permits for non-religious assembly uses in areas zoned general business. The suit alleged that the denial infringed its free speech, free exercise, equal protection and due process rights under the U.S. and Michigan constitutions and its rights under RLUIPA. The court directed the parties into mediation, and they reached a settlement under which the church would be permitted to use the property for religious purposes. Muskegon City Council approved the settlement on June 24.

India, Under Christian Pressure, Blocks Migration of Bene Menashe To Israel

IANS reports today that the Indian government has refused to grant permission for nearly 200 Bnei Menashe members to emigrate from the country's northeaster state of Mizoram to Israel. After the Bene Menashe were recognized by the Israeli rabbinate as descendants of ancient Israelites, a group of rabbis came to India and converted the Mizo Jews-- who had been born as Christians. While Israel had planned to welcome the group under its Law of Return, a group of Christians in India apparently filed a formal protest with the Indian external affairs ministry and home ministry. They wanted the planned migration blocked and the conversions of the Bene Menashe stopped. Since 1994, some 1000 Bene Menashe members have migrated to Israel from Mizoram and its neighboring state of Manipur.

Defense Department Moves To Dismiss Suit Claiming Religious Discrimination

God and Country blog reports that yesterday the Defense Department filed a motion to dismiss and a memorandum in support of the motion (full text) in Hall v. Welborn. In March, Jeremy Hall and the Military Religious Freedom Foundation filed suit in federal district court in Kansas claiming that a meeting of atheists and freethinkers organized by Hall in Iraq was interrupted by an Army major, and that Hall was not recommended for promotion because his platoon sergeant thought he would be "unable to put aside his personal convictions and pray with his troops" and would have trouble bonding with them. (See prior posting.) In support of its motion to dismiss, the Defense Department argued that the court need not reach the merits. It contends that because Hall did not show that the major's action was likely to recur, he lacked standing to obtain an injunction. It claimed that Hall failed to use existing internal procedures to complain about his treatment and that he did not show injury from the alleged pattern and practice in support of religion. It also argued that judicial review would interfere with military operations and personnel matters committed to military expertise.

Lawsuit Challenges Publishers' Translation of Bible Verse

An unusual pair of federal lawsuits filed pro se by a Michigan man complain about the translation of a passage in I Corinthians in versions of the Bible from two publishers. The verse, I Corinthians 6:9, describes those who will not inherit the kingdom of God. Early versions of Bibles published by Thomas Nelson Publishing and Zondervan Publishing House include "homosexuals" in the list. Later translations instead use the term "sodomites". The exact theory of plaintiff Bradley Fowler's case is not clear. In his handwritten complaints against Thomas Nelson Publishing (full text of complaint) and Zondervan (full text of complaint) he variously charges that inclusion of the term homosexual caused him, as a homosexual, emotional harm. However he also complains that the publishers eliminated the term in later editions without informing the public. Reporting on the lawsuits, today's Grand Rapids Press says the court refused Fowler's request for an appointed attorney. The judge questioned the nature and efficacy of the claims. The suits seek $60 million in damages from Zondervan and $10 million from Thomas Nelson.

UPDATE: Bill Poser on Language Log has an excellent discussion of the translation issues posed by the original Greek in the Biblical verse at issue.

Gaer Elected New Chair of USCIRF

Last week, the U.S. Commission on International Religious Freedom announced the election of Felice D. Gaer as chair for the coming year beginning July 1. She succeeds Michael Cromartie who will serve as vice-chair along with Dr. Elizabeth H. Prodromou. Gaer is Director of the Jacob Blaustein Institute for the Advancement of Human Rights of the American Jewish Committee.

Muslim Woman Sues For Employment Discrimination

Yesterday a Sacramento, California Muslim woman filed suit in state court charging National Credit Acceptance, Inc. with employment discrimination. The complaint in Southavilay v. National Credit Acceptance, Inc., (CA Super. Ct., filed July 8, 2008), alleges that Zaylanin Southavilay was told she could not continue working as a telephone debt collector with National Credit Acceptance if she continued to wear a hijab (Islamic headscarf). Southavilay sued under California law (California Government Code, Sec. 12940) claiming religious discrimination and failure to accommodate her religious belief. She also charged wrongful termination in violation of public policy. The Asian Law Caucus issued a release reporting on the filing of the lawsuit.

Hungary's Constitutional Court Strikes Down Hate Speech Amendments

The Budapest Times reports that Hungary's Constitutional Court last week ruled two amendments added last year to Hungary's "hate speech" law unconstitutional. One amendment allowed suits to be brought against a speaker who directed inflammatory speech broadly against a person's religious or ethnic group. Previously plaintiffs had to show the speech was directed against them personally. The other amendment for the first time made hate speech a criminal offense, punishable by up to two years in prison. The court held that both of the amendments unduly restrict freedom of expression. It also held that only natural persons may have their human dignity protected. Broader communities or groups may not. Criticizing the decision, Socialist MP Gergely Bárándy said that it opens the door to verbal attacks on Jews and Gypsies.

Swiss Referendum on Banning Minaret Construction Will Be Held

The AP reported yesterday that in Switzerland, members of two right-wing parties have obtained enough signatures to force a nationwide referendum on banning construction of minarets. Members of the Swiss People's Party and the Federal Democratic Union say the minaret is a symbol of an Islamic political and religious claim to power. The Interior Ministry says it received a petition with 100,000 signatures supporting the proposal. Currently there are only two minarets in Switzerland, and neither is used for calls to prayer. Opponents say the construction ban would violate the religious freedom of Switzerland's 310,000 Muslims. The Swiss government will recommend that voters reject the proposed ban, fearing its impact on the country's international image and the potential reaction of Muslims if the ban is enacted.

Police Require Orthodox Jewish Woman To Remove Wig For Arrest Photo

In Ramapo, New York, members of the town's Hasidic Jewish community are protesting action of the police department in its arrest of an Orthodox Jewish woman, Sarah Cohen. The woman, charged with welfare fraud, was required to remove her wig for an arrest photograph. Many Orthodox Jewish women who are married keep their heads covered in public with a wig as a sign of modesty. However, law enforcement agencies generally require suspects to remove hats, turbans, wigs, glasses and toupees for booking photos. Sunday's Lower Hudson Journal News, reported, surprisingly, that police in New York towns like Ramapo, Spring Valley and Bedford, all of which have large Hasidic populations, have no written procedures on how to deal with religious or cultural concerns in booking suspects. After the incident, Ramapo Supervisor Christopher St. Lawrence apologized and called the police officer involved insensitive. The matter is being investigated and a report will be presented to the Town Board tomorrow. Police Chief Peter Brower says he will review departmental policies on the issue.

Folk Religions Get Very Different Treatments Around the World

Reports this week from opposite sides of the world reflect the rather disparate views of folk religions by varying legal systems. Today's New York Times reports that in Tajikistan, a new law passed early this year outlaws traditional fortune telling. The "fate viewer"-- who also sometimes prescribes folk remedies-- is a centuries-old profession in the country. Practitioners have enjoyed a resurgence in popularity lately as the country suffers economically. Proponents of the new law say it was designed to protect the population from a drain on their finances, prohibit "un-Islamic" activity and reduce the number of people practicing medicine without a license.

Meanwhile Lifesite News yesterday reported on a case decided in May by a criminal court judge in the Brazilian state of Bahia. Judge Ricardo Augusto Schmitt ordered confiscation from bookstores of all copies of a book condemning witchcraft written by Catholic priest Jonas Abib. The book is titled "Yes, Yes! No, No! Reflections on Healing and Liberation." In obtaining the court order, the public prosecutor argued that Bahia's state constitution requires the state "to preserve and guarantee the integrity, respectability, and permanence of the values of Afro-Brazilian religion." He accused accused Abib of "making false and prejudiced statements" about spiritualist religions and inciting disrespect for their objects of worship.

Christian Group Runs Controversial Ad Against New Colorado Law

In May, Colorado's Governor Bill Ritter signed Colorado SB 200 which, among other things, prohibits discrimination on the basis of sexual orientation in public accommodations. The new law defines "sexual orientation" to include transgender status. Seizing on this, the Christian group Focus on the Family is now running a controversial advertising campaign against the bill in Colorado newspapers. According to today's Pueblo Chieftan , the ads claim the new law has made all public restrooms unisex. The ad depicts an innocent little girl coming out of a bathroom stall with a man in boots waiting to use it.

Court Dismisses Free Exercise Challenge To Forest Service Permit Regulations

In Nenninger v. United States Forest Service, 2008 U.S. Dist. LEXIS 51212 (WD AR, July 3, 2008), an Arkansas federal district court dismissed a challenge to U.S. Forest Service regulations requiring a special permit for large noncommercial gatherings on Forest System lands. The permit application must be signed by an agent for the group. (36 C.F.R. Part 251, Subparts B and C, and 36 C.F.R. Part 261, Subpart A.) The regulations were challenged by a member of the Rainbow Family, a group that regularly gathers in undeveloped sites in National Forests to pray for peace and discuss environmental and other issues. Its annual gatherings near July 4 usually attract 20,000 participants. The court rejected First Amendment overbreadth, free exercise and RFRA challenges to the regulations. It held that the permit requirements are facially neutral laws of general application and do not substantially burden the practice of plaintiff's religion. The court also rejected selective prosecution claims and a number of other bases for relief.

Ahmadis Zoning Denial Leads To Suit Against Maryland Town

In Baltimore, Maryland yesterday, developer David Moxley filed a lawsuit in federal court challenging the decision of the Walkersville (MD) Board of Zoning Appeals to deny a special exception to land use restrictions sought by the Ahmadiyya Muslim Community USA. Moxley had planned to sell the Ahmadis 224 acres of land for $6 million for them to use to build a mosque and living quarters for its imam. Yesterday's Baltimore Sun reports that the zoning board's denial was based on a desire to preserve farm land and concern about the crowd of thousands that attends the group's annual, three-day national convention. The complaint alleges that the zoning board violated the Ahmadis free exercise and equal protection rights, violated RLUIPA, the federal Fair Housing Act and the Maryland Constitution's Declaration of Rights. The suit also alleges that the town's mayor and town commissioners conspired to block the mosque construction by adopting new land-use restrictions barring places of worship on land zoned for agriculture. (See prior related posting.) [Thanks to Roman Storzer for the lead.]

Israeli Court-Approved Compromise On Autopsies May Be Solution To Future Cases

Arutz Sheva today reports on an interesting compromise worked out in the courts last week that may act as precedent in dealing with religious objections to autopsies. After the wife of the rabbi of the Yemenite Jewish community is the city of Ashkelon was murdered, authorities insisted they needed an autopsy to determine the cause of death. A magistrate's court rejected the family's religious objections, but while an appeal was pending in the Supreme Court a compromise was proposed-- perform a non-invasive MRI autopsy. After a great deal of bureaucratic "buck-passing", everyone agreed and the procedure was performed at Hadassah Ein Kerem Hospital in Jerusalem. The Supreme Court rejected an attempt by the prosecution to follow the MRI with a traditional autopsy in order to check the accuracy of the MRI procedure.

Church Sues To Challenge Zoning Denial

The Danbury (CT) News-Times today reports that a Christian congregation, His Vineyard, Inc., has filed suit in state court-- apparently under RLUIPA-- challenging Danbury's denial of a request for a variance. The church wants to build in an area zoned industrial. The Zoning Board denied the request because it wants to keep industrial areas for economic development. However the church says it should be treated the same as hotels which are permitted in industrial areas, since both are places of public assembly.

Recent Prisoner Free Exercise Cases

In Tyson v. Guisto, 2008 U.S. Dist. LEXIS 49528 (D OR, June 27, 2008), an Oregon federal district court rejected claims by two Muslim prisoners that their rights under the First Amendment and RLUIPA were violated when authorities temporarily held Jum'ah prayers on Sunday instead of Friday, did not hire an Imam, and allowed non-Muslims to prepare Halal meals.

In Campbell v. Cornell Corrections of Rhode Island, Inc., 2008 U.S. Dist. LEXIS 49191 (D RI, June 27, 2008), a Rastafarian prisoner sued because he was denied a vegetarian diet as required by his religious beliefs. The court held that at this stage of the litigation, there is such a lack of evidence on plaintiff's First Amendment claim that neither party is entitled to judgment as a matter of law. The court rejected plaintiff's Eighth Amendment claim.

In Ransom v. Johnson, 2008 U.S. Dist. LEXIS 49378 (ED CA, June 18, 2008), a California federal magistrate judge recommended that a Muslim prisoner's motion for summary judgment be denied on his First Amendment claim that he was not permitted to attend communal prayer while in "C-status"-- designed to limit the movements inmates who were unwilling to comply with prison rules.

In Contreraz v. Adams, 2008 U.S. Dist. LEXIS 49150 (ED CA, June 11, 2008), a California federal magistrate judge dismissed, with leave to amend, a complaint filed by a Native American prisoner who was a member of the "Olin Pyramid" religion. Plaintiff claimed he had been denied religious dietary modifications and an exemption from the grooming standards. However his 323-page complaint violated pleading rules and failed to link any specific defendant with a specific constitutional violation.

EC Adopts Anti-Discrimination Directive

On July 2, the European Commission announced its adoption of a proposed anti-discrimination directive that broadly prohibits discrimination on various grounds, including religion. The EC announcement read in part:

the Commission adopted a proposal for a directive which provides for protection from discrimination on grounds of age, disability, sexual orientation and religion or belief beyond the workplace. This new directive would ensure equal treatment in the areas of social protection, including social security and health care, education and access to and supply of goods and services which are commercially available to the public, including housing....

The law will prohibit direct and indirect discrimination as well as harassment and victimisation.... The directive will only apply to private persons in so far as they are performing their commercial activities or professional. Also, Member States will remain free to maintain measures ensuring the secular nature of the State or concerning the status and activities of religious organisations.

New Scholarly Articles and Books of Interest Abound

From SSRN:

• Ayelet Shachar, Privatizing Diversity: A Cautionary Tale from Religious Arbitration in Family Law, (June 25, 2008, Theoretical Inquiries in Law, Vol. 9, No. 2, pp. 573-607, 2008).
• Katja Rost, Emil Inauen, Margit Osterloh & Bruno S. Frey, The Corporate Governance of Benedictine Abbeys: What Can Stock Corporations Learn from Monasteries?, (May 25, 2008).
• Frederick Mark Gedicks, Fundamentalism, Spirituality, and Church-State Relations in the United States. Chapter in Multiculturalisms: Different Meanings and Perspectives of Multiculturalism in a Global World (Durham, NC: Carolina Academic Press, Barbara Pozzo ed. forthcoming 2008).
• John M. Bickers, Of Non-Horses, Quantum Mechanics, and the Establishment Clause" (forthcoming 57 Kansas Law Review (2009)).
• Vincent Phillip Munoz, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress" Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120 (2008).

From SmartCILP:

• Lisa Shaw Roy, History, Transparency, and the Establishment Clause: A Proposal for Reform, 112 Penn State Law Review 683-729 (2008).
• John Witte, Jr., "Fairer Still the Woodlands" --Mapping the Free Exercise Forest, (Reviewing Kent Greenawalt, Religion and the Constitution: Free Exercise and Fairness.) 24 Constitutional Commentary 551-565 (2007).
• The Wren Cross Controversy: Religion and the Public University. Essays by Erwin Chemerinsky and Gerard V. Bradley. 49 William & Mary Law Review 2193-2263 (2008): Chemerinsky, Why Church and State Should Be Separate; Bradley, Religion at a Public University.
• Frank S. Ravitch, Intelligent Design in Public University Science Departments: Academic Freedom or Establishment of Religion, 16 William & Mary Bill of Rights Journal 1061-1090 (2008).
• Thomas L. Shaffer, Business Lawyers, Baseball Players, and the Hebrew Prophets, 42 Valparaiso University Law Review 1063-1080 (2008).
• Nicholas A. Schuneman, One Nation, Under ...The Watchmaker?: Intelligent Design and the Establishment Clause, 22 BYU Journal of Public Law 179-227 (2007).
• Jeffrey Shulman, What Yoder Wrought: Religious Disparagement, Parental Alienation and the Best Interests of the Child, 53 Villanova Law Review 173-208 (2008).
• William Joseph Wagner, To the Age of Social Revolution: As Papal Rejoiner, "The Apocalypse Is Not Now", 53 Villanova Law Review 209-271 (2008).

New books:

• The Center for American Progress has published in full online a collection of essays titled Debating the Divine: Religion in 21st Century American Democracy. Links to individual essays are on the Center's web page devoted to the book. [Thanks to Melissa Rogers for the lead.]
• Mark Silk & Andrew Walsh, One Nation, Divisible: How Regional Religious Differences Shape American Politics, (Rowman & Littlefield, June 2008). [Thanks to Spiritual Politics for the lead.]

Bush, Fukuda Will Both Attend Olympics Opening Despite Human Rights Concerns

In a joint press conference today (full text) with Japanese Prime Minister Yasuo Fukuda, President George W. Bush defended his decision to attend the opening ceremonies at the Beijing Olympics next month. As reported by CNN, Bush took the position in the face of decisions by some European leaders to boycott the opening ceremonies to protest human rights violations in China. At the press conference, Prime Minister Fukuda for the first time confirmed that he too would be attending the opening ceremonies. Here is a portion of the Q&A:

Q ... I was wondering if you could ... explain ... your decision to attend the Opening Ceremonies of the Olympics next month. And more generally, I'm wondering what you would say to ... your friends and allies in the United States who are very concerned about religious freedom and human rights in China....

PRESIDENT BUSH: I view the Olympics as a opportunity for me to cheer on our athletes.... [E]very time I have visited with [the Chinese] ... I have talked about religious freedom and human rights. And so ... I don't need the Olympics to express my concerns. I've been doing so.... [N]ot going to the opening games would be ... an affront to the Chinese people, which may make it more difficult to ... speak frankly with the Chinese leadership.... I think it would be good for these athletes who have worked hard to see their President waving that flag....

... I have been very clear in my view that, for example, a whole society is one that honors religion, and that people shouldn't fear religious people.... China benefits from people being able to worship freely. It looks like there's some progress, at least in the talks with the Dalai Lama....

PRIME MINISTER FUKUDA: ... [H]ere for the first time, I will announce that I -- announce officially that I will attend the Opening Ceremony of the Olympics.... I don't think you really have to link Olympics to politics.... In the past ... the U.S. and others criticized Japan for certain behaviors.... So we really have to ... have humility in asking ourselves, do we have the right to make those points to China and others.... We are neighbors, after all, and it will good for Japan if our neighbors are in a sound state, as well. So with that in mind, as well, I shall attend the Opening Ceremony.

Historian Says Links Between Democrats and Evangelicals Have Deep Roots

Historian Ted Widmer writes a piece in today's New York Times Magazine titled Redemption Politics in which he makes the case that Barack Obama's outreach to evangelicals has deep roots in American history. He writes in part:

Maybe the distance between liberals and evangelicals, each eternal optimists in their way, is much smaller than we realized. In our week of national reflection, it’s worth recognizing that religious enthusiasm in America has as often as not had a reformist or even revolutionary cast to it....

We often forget how close the revolutionaries were to the Great Awakening of the 1730s and ’40s, when revival meetings were held across the colonies and apocalyptic expectation hung heavy in the air....

For most of American history, evangelicals were Democrats or their equivalents, profoundly uncomfortable near the temple of the moneychangers. Jefferson attracted huge numbers of voters simply because his running mate, Aaron Burr, was the grandson of the great evangelist Jonathan Edwards.

Canadian Human Rights Commission Dismisses Charges Against Catholic Magazine

Catholic Insight reports that the Canadian Human Rights Commission (CHRC) has dismissed a complaint brought against it by Rob Wells, a member of the Gay, Lesbian and Transgendered Pride Center of Edmonton. (See prior posting.) Wells claimed violations of section 13 of the Canadian Human Rights Act because of some 108 articles and reports on Catholic Insight's website. Catholic Insight says that the postings merely "communicated the theological reasoning of the Catholic Church which opposes the homosexual way of life as contrary to the will of God the Creator, and, therefore, sinful." In its letter to Catholic Insight the CHRC said: "After examining this information, the Commission decided, pursuant to paragraph 44(3)(b) of the Canadian Human Rights Act, to dismiss the complaint because the material is not likely to expose a person or persons to hatred or contempt based on sexual orientation."

Civil-Religious Courts Clash Again In Indonesia

In Malaysia, the ongoing tension between jurisdiction of civil and religious courts has come to the fore in the case of an ethnic Indian, Elangeswaran Benedict, who committed suicide. Indo Asian News Service reported yesterday that when Benedict's family sought to claim his body from the Parit Buntar Hospital in Kuala Lumpur, they were told that they could not take the body for Hindu cremation rites because Benedict was a Muslim convert. The family brought suit in the High Court in Kuala Lumpur seeking a declaration that he was Hindu. A hearing was scheduled for Friday afternoon. However, on Friday morning, religious authorities quickly obtained an order from a Syariah Court ordering Benedict's burial as a Muslim. Benedict's wife, named as a respondent in the case, was not present in the religious court for the hearing. Benedict's family are now back in the High Court seeking an injunction to prevent religious authorities from claiming the body.

UPDATE: On July 7, High Court judge Datuk Balia Yusuf Wahi rejected the family's request for an injunction and Elangesvaran's body was buried according to Muslim tradition by the Parit Buntar state religious council. Nevertheless, according to the New Straits Times, the family has filed a notice of appeal in the case.

Court Upholds Restraining Order Against Autistic Teen At Services

The Minneapolis Star Tribune reported last week on a decision issued June 27 by a Todd County, Minnesota state District Court. Siding with the Church of St. Joseph in Bertha (MN), the court upheld a May 13 restraining order barring 13-year old Adam Race from attending church. The teenager is autistic, and the church says his conduct disrupts services. As previously reported, at issue was whether Adam's conduct violated the state's harassment statute under which the restraining order was issued. The court concluded that while Adam "did not specifically intend to harass anyone," his conduct at church services was "objectively unreasonable." It included "repeated, disruptive or distracting acts, sounds, and gestures." Under the statute, harassment is defined as including "repeated incidents of intrusive or unwanted acts, words, or gestures that have a substantial adverse effect ... on the safety, security, or privacy of another." [Thanks to Joel Sogol via Religionlaw listserv for the lead.]

Alaska Court Upholds Tax Exemption For Church-Owned Teacher Housing

In 2006, the Alaska legislature passed HB 334 which, among other things, extended local property tax exemptions to "the residence of an educator in a private religious or parochial school." Today's Anchorage Times reports that in a decision handed down on Thursday, an Alaska Superior Court judge upheld the constitutionality of the law. At issue was the exempt status of Anchorage Baptist Temple's housing for teachers. The court said that the exemption, as written, does not discriminate in favor of religion, because under the law both religious and non-profit secular schools can obtain exemptions by proving the same facts. The court left open the possibility of a further challenge if the law is administered in a way that favors religious organizations. (See prior related posting.)

Press Groups Support En Banc Reivew In Eagle Case

Defendant Winslow Friday is asking the U.S. 10th Circuit Court of Appeals for en banc review of a decision that upheld his prosecution under the Bald and Golden Eagle Protection Act for killing of an eagle to use in a tribal sun dance. (See prior posting.) In his review request, Friday has found unusual allies. The Wyoming Press Association and the Colorado Press Association have both filed motions to intervene to support the call for en banc review. The press groups object to the extensive review of "constitutional facts" undertaken by the Court of Appeals in its panel decision. Yesterday's Casper (WY) Star-Tribune reports that newspaper publishers fear the holding means they may have to defend defamation cases a second time on appeal, after they win at trial, instead of having the appellate court give deference to the findings of fact at trial.

Town Tries To Stop Catholic Radio Station After It Ends Ecumenical Programs

In Burlington, Connecticut, the town's planning and zoning commission has voted to issue a cease-and-desist order to prevent the Catholic Archdiocese of Hartford from continuing to use a radio tower on Johnnycake Mountain to transmit programming on its radio station, WJMJ-FM. Yesterday's Hartford Courant reports that the city contends the archdiocese is violating a 1987 agreement that ended lengthy zoning litigation. Under that arrangement, the archdiocese could operate the tower so long as the station was nonprofit and its programming multi-denominational. Now however the archdiocese has ended its 14 hours of ecumenical Sunday programming, called "Festival of Faith," and has replaced it with Catholic features.

Rev. John Gatzak, spokesman for the archdiocese, says that the Festival of Faith programming was not of high quality, and that the archdiocese has a responsibility to use its station for Catholic evangelizing. However, Gatzak has met with Protestant and Orthodox producers from "Festival of Faith" and agreed to discuss alternative ecumenical programs. [Thanks to Scott Mange for the lead.]

British Court Says Jewish School Can Admit Students On Basis of Religion

In Britain yesterday, a High Court judge upheld the policy of a leading government-funded Jewish school to give preference in admissions to "children who are recognised as being Jewish by the Office of the Chief Rabbi of the United Hebrew Congregation of the Commonwealth (OCR)." In R(E) v. Governing Body of JFS, (High Ct. QB Adm. Ct., July 3, 2008), three families were challenging the refusal of the Jewish Free School (JFS) to admit their children because they were not considered to be Jewish under Orthodox Jewish law. In each case, the child's mother had converted to Judaism. While normally the child of a Jewish mother is considered to be Jewish, in these cases for various reasons the mothers' conversions were not recognized as valid under Orthodox Jewish law. In the case of the lead plaintiff, the conversion had been performed by a rabbi in the Progressive movement. The court summarized the issue:

As will become apparent, the religious issue at the heart of this controversy – though not, I emphasise, a matter for determination by me – is the answer to the question, Who is a Jew? And, as will also become apparent, that is not a matter on which all those who conscientiously believe themselves to be Jews agree.

The main contention in the case by plaintiff was that JFS had engaged in racial discrimination in violation of the Race Relations Act 1976 since the determination of Jewishness was not based on belief or religious practice, but on ancestry. The court concluded, however, that

what one has here ... is at most discrimination on religious grounds between one part and another part of what the law recognises as a racial (ethnic) group, but ... not race discrimination.... [A] a policy which permitted preferences only on the basis of religious practice would prejudice religions, such as Judaism, which define membership exclusively by status and not by practice or observance.

Times Online reports on the decision. (See prior related posting.)

State Petitions To Get Medical Treatment For Amish Child

In Watertown, New York, the Department of Social Services has filed a petition in St. Lawrence County Family Court seeking to have a one-year old boy removed from his Amish parents and placed in foster care so he can receive medical treatment for his potentially fatal heart condition. WNYF TV News reported yesterday that Eli Hershberger needs open-heart surgery, but that his parents, Barbara and Gideon Hershberger, on religious grounds object to use of medical treatment and hospitals. The court has appointed the County Conflict Defender to represent the parents, and a guardian ad litem has been appointed to represent Eli's interests.

On a related issue, yesterday Religion News Service published an interview with Shawn Francis Peters, author of the book, When Prayer Fails: Faith Healing, Children and the Law. Asked to explain the theology behind various denominations' choice of prayer over medicine, Peters cited James 5:14 which reads: "Is any among you sick? Let him call for the elders of the assembly, and let them pray over him, anointing him with oil in the name of the Lord, and the prayer of faith will heal him who is sick, and the Lord will raise him up."

British Judge Says Sharia As Part of Arbitration Is OK

England's senior judge, Lord Chief Justice Lord Phillips, delivered a controversial speech on Thursday at a mosque in east London. The Mail reports that Phillips supported the possibility of using principles of Islamic Sharia law as part of an alternative dispute mechanism in family, marriage and financial disputes. He said in part: "'Those who are in dispute are free to subject it to mediation or to agree that it shall be resolved by a chosen arbitrator. There is no reason why principles of sharia law or any other religious code should not be the basis for mediation or other forms of dispute resolution." However, he said that any sanctions must be "drawn from the laws of England and Wales", so that severe physical punishment cold not be meted out by a Sharia arbitration panel. Opponents of the idea say, however, that this approach could disadvantage women.

Social Conservatives Adopt Declaration of American Values

A group of prominent social conservatives meeting in Denver this week adopted a "Declaration of American Values", whose introductory and concluding language use phrases from the Declaration of Independence. Its ten paragraphs focus on the right to life, marriage and family, parental rights, free exercise of religion, opposition to pornography, rights of private property (while acknowledging stewardship of the environment), right to own firearms, checks and balances so that the judiciary does not usurp power, a strong military and a fair tax system. Baptist Press yesterday reported that the attendees agreed to unite behind John McCain's presidential candidacy. Liberty Counsel's Mat Staver said that while McCain would not support all of the group's values, McCain would support more of them than would Barack Obama.

Belgian Court Says Patka Ban Violates Human Rights Convention

On Tuesday, according to Punjab Newsline, a Belgian court ruled that a uniform rule imposed by a public school, KTA Domein Speelhof, infringed the rights of Sikh students in violation of Art. 9 of the European Convention on Human Rights. The Hasselt Civil Court overturned the school's ban on Sikh boys wearing the Patka, finding that the school's ban on any head wear infringed on the Sikh students' right to practice their religion.

Santeria Adherent Fined For Animal Cruelty

App.com reports that in Spring Lake, NJ, Alain Hernandez was assessed fines and restitution fees totalling $900 after pleading guilty yesterday in Municipal Court to a charge of animal cruelty. Hernandez's mother is a Santeria priestess. Another Santero ritually killed a number of animals in a ritual designed to generate wealth. The Santero told Hernandez to put the carcasses in a wealthy community to get better results. That explains police finding chicken carcasses, dead fish, fruits and a dollar bill scattered on the beach at Spring Lake. Apparently no Free Exercise claims were raised by Hernandez.

9th Circuit Says California Law Does Not Ban Anti-Abortion Display Near Schools

The U.S. 9th Circuit Court of Appeals yesterday held that a California statute prohibiting anyone from disrupting a school or its pupils could not be applied to prohibit an anti-abortion organization from driving a truck around the perimeter of a middle school, displaying enlarged, graphic photos of early-term aborted fetuses. In Center for Bio-Ethical Reform, Inc. v. Los Angeles County Sheriff Department, (9th Cir., July 2, 2008), the court held that First Amendment concerns would be raised if California Penal Code, Sec. 626.8 were read to apply to situations in which officials merely object that the content of speech is offensive to students. The court said the statute should be construed to apply only when disruptions are caused by the manner, rather than the content, of speech. However the court held that officers have qualified immunity as to plaintiffs' claim for damages because previously it was not clear that case law prohibiting a "heckler's veto" applied where the target audience is children. The court remanded the case for consideration by the trial court of injunctive relief.

In a press release reacting to the decision, the Center for Bio-Ethical Reform said: "We are grateful to God for granting the Founding Fathers the wisdom to create appellate courts which can rectify the mistakes of trial court judges.... The First Amendment means nothing if it doesn't mean the right to show people things they don't want to see."

2nd Circuit Rejects Capital Defendant's Challenge To Evidence About His Religious Beliefs

In United States v. Fell, (2d Cir., June 27, 2008), the U.S. 2nd Circuit Court of Appeals rejected the challenge by a defendant who had been sentenced to death to the introduction of evidence at penalty stage of his trial regarding his religious beliefs. The court found that testimony regarding defendant Donald Fell's interest while incarcerated awaiting trial in the Muslim and Native American religions, and his filing of grievances regarding participation in religious rituals, were relevant to whether or not Fell had successfully adjusted to prison. Testimony about Fell's past interest in Satanism was more troubling to the court. The court concluded, however, that it did not prejudice Fell sufficiently to call for a new trial, especially since the trial court had instructed the jury that it could not consider Fell's religious beliefs in rendering its verdict.

LAPD Officer Sues Department Claiming Religious Discrimination

Yesterday's Los Angeles Times reports that L.A. police officer Sgt. Eric Holyfield, who is also a pastor, has filed a religious discrimination lawsuit in state court against the Los Angeles Police Department and Deputy Police Chief Charlie Beck. Holyfield alleges that he was passed up for promotions and raises after he preached a controversial eulogy at the funeral of another police officer, Nathaniel Warthon Jr. Holyfield, dressed in black clerical attire, identified himself as a police sergeant and Warthon's supervisor as he spoke at the funeral. In his eulogy, he said that homosexual acts are "sinful" and would lead to condemnation in hell if there was not repentance. Holyfield quoted Biblical passages that condemn homosexuality. After the funeral, Deputy Chief Beck filed a formal complaint against Holyfield. Holyfield says that Beck's actions were motivated by "religious biases." The complaint in his lawsuit alleges that LAPD has "historically discriminated . . . and continues to discriminate against officers that cite from the Holy Bible."

Some Oppose Obama's Limit On Faith-Based Hiring In Funded Programs

Wall of Separation yesterday reported that a number of conservative religious leaders are unhappy with one part of Barack Obama's plans to expand President Bush's faith-based initiative. Obama announced his proposals in a speech in Ohio earlier this week. (See prior posting.) Obama will not permit faith-based hiring for the social service programs that receive federal funding. (See July 1, Columbus Dispatch report.) Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives, said: "The reality is an Orthodox Jewish group ceases to be Orthodox if they have to hire atheists or Southern Baptists. What Senator Obama is saying is groups will have to secularize if they play ball with government and receive federal funding, and that flies in the face of what many small groups want." Southern Baptist Convention public policy spokesman, Richard Land, said: "If you can’t hire people within your faith community, then you've lost the distinctive that is the reason why faith-based programs exist in the first place."

Get Religion yesterday focused on the same concerns. It quotes an example from the blog Spiritual Politics : "You can certainly imagine situations where ... a relatively small church wants to hire a youth pastor but can only afford one half time, so wants to be able to make that a full-time position ... by making him head of the publicly funded after-school program. That’s not allowed (unless, of course, you open the youth pastor position to people of any religious persuasion). "

UPDATE: The July 5 New York Times surveys the debate over religious-based hiring by religiously affiliated social service providers receiving federal funds. It says that Obama's position implicates "deeper questions about religious freedom that could very well seal the fate not only of any new and potentially improved partnerships between government and religious groups but also even those partnerships that, in reality, had been operating for decades."

Proposed Iranian Law Would Treat Blogs That Promote Apostasy As Capital Offense

Khaleej Times reported yesterday that Iran's Parliament is set to debate a draft bill that would not only continue to punish apostasy and a number of other crimes with death, but would add to the list of capital offenses "establishing weblogs and sites promoting corruption, prostitution and apostasy." The draft bill also provides that the sentence in these cases "cannot be commuted, suspended or changed". Last year, Iran carried out 317 executions.

Former Texas Science Curriculum Director Sues Over Agency Policy On Creationism

An interesting lawsuit has been filed by Christina Comer, former science curriculum director of the Texas Education Agency (TEA). Yesterday's Dallas News reports on the suit filed in federal district court in Austin. Comer was forced to resign last year after she forwarded to a number of people an e-mail announcing a presentation by an author who is critical of intelligent design and creationism proponents. (See prior posting.) Comer's supervisors took the position that Comer had violated TEA's policy to remain neutral on the issue of teaching creationism as the Agency's review of the state science curriculum approached. The complaint in Comer v. Scott, (WD TX, filed July 2, 2008) asserts in part:

By professing "neutrality," the Agency unconstitutionally credits creationism, a religious belief, as a valid scientific theory. The Agency's policy is not neutral at all, because it has the purpose or effect of inviting dispute about whether to teach creationism as science in public schools.... The Agency's "neutrality" policy violates the Establishment Clause ... because it has the purpose or effect of endorsing religion.

The complaint asserts that Comer's constitutional rights were violated when she was fired for violating TEA's unconstitutional policy, and that she was also denied due process when TEA operating procedures were not followed in her dismissal.

EEOC Sues On Behalf of Sikh Job Applicant

The U.S. Equal Employment Opportunity Commission last week filed suit against a Texas company on behalf of a Sikh man who the company refused to hire. When Sukhdev Singh Brar, a certified security officer, applied for a position with Champion National Security and was called for an interview, he was told to shave and take off his turban. The EEOC suit, reported on by the Indo-Asian News Service, charges Champion National with religious discrimination.

Court Upholds Ban on 12-Foot High Cross In 4th of July Celebration

Yesterday a Virginia federal district court refused to grant a preliminary injunction against new regulations banning objects taller than 8 feet high at Chesapeake, Virginia's traditional 4th of July celebration in Lakeside Park. the celebration follows a parade. The Hampton Roads Virginian-Pilot reports that the challenge was filed by Steve Taylor, founder of Christian Rights Ministries. He wanted to display a 12-foot high cross at the celebration. At last year's celebration, the cross was allowed in the parade, but not in the park. At the court hearing on Tuesday morning, a Ministries member carried the cross on his back to the front of the courthouse and brought it into the court room. During the hearing, two defense attorneys held the cross up in front of the judge. (Minutes of court proceeding in Christian Rights Ministries v. City of Chesapeake, (ED VA, July 1, 2008)). [Thanks to Scott Mange for the lead.]

Appeal Filed In Photographer's Sexual Orientation Discrimination Case

Yesterday Alliance Defense Fund announced that an appeal was filed in a New Mexico state court seeking reversal of a controversial April decision by the state's Human Rights Commission. The Commission concluded that a photography company had violated state public accommodation anti-discrimination laws by refusing to photograph a lesbian commitment ceremony. Photographer Elaine Huguenin refused to provide photography services because moral, philosophical and Christian religious beliefs held by her and her husband are in conflict with the message communicated by the ceremony. (See prior posting.) In the appeal (full text of pleadings), the photography company claims that it is not a "public accommodation" under New Mexico's anti-discrimination laws that ban, among other things, discrimination on the basis of sexual orientation. The appeal also asserts that the Commission's decision violates the speech and religion protections in the U.S. and New Mexico constitutions and the New Mexico Religious Freedom Restoration Act.

Florida RFRA Challenge To Park Feeding Ordinance Dismissed

In First Vagabonds Church of God v. City of Orlando, 2008 U.S. Dist. LEXIS 49314 (MD FL, June 26, 2008), a Florida federal district court rejected a challenge under Florida's Religious Freedom Restoration Act (FRFRA) to Orlando's Large Group Feeding Ordinance. The Ordinance requires a permit to feed more than 25 people in a downtown city park, and limits any group to two permits in a 12 month period. First Vagabonds Church of God holds services every Sunday in Orlando's Langford Park, and sharing food is part of the service. The Ordinance effectively requires that the Church rotate its services among downtown parks, or hold them outside of the downtown area. The court held: "Clearly, the ordinance places a significant burden on FVCG's services. However, it does not rise to the level of a substantial burden as defined by FRFRA." Last week's Orlando Sentinel reports that other counts alleging restrictions on freedom of speech and assembly remain to be decided. The Orlando Sentinel also covered some of the testimony in last week's bench trial of the case. (See prior related posting.)

Florida's School Zone Safety Law Held Vague In Suit By Gideons Member

In Gray v. Kohl, 2008 U.S. Dist. LEXIS 49482 (SD FL, June 18, 2008), a Florida federal district court held that Florida's School Safety Zone statute is unconstitutionally vague insofar as it precludes anyone "who does not have legitimate business" to be within 500 feet of a school during school hours, or to loiter near campus. (Fla. Stat. Sec. 810.0975 .) The court permanently enjoined enforcement of these provisions. The lawsuit was filed by a member of Gideons International after members were prevented from distributing Bibles near a Key Largo (FL) school. However the court dismissed damage claims against the county sheriff, finding he was not liable for the arrest made by one of his officers, nor was he liable for failure to train his officers regarding enforcement of the School Safety Zone law. (See prior related posting.)

Church Required To Identify Some Members In RLUIPA Interrogatories

Christ Covenant Church v. Town of Southwest Ranches, 2008 U.S. Dist. LEXIS 49483 (SD FL, June 29, 2008) poses an interesting issue of a church's right to protect its membership list. Christ Covenant church filed a RLUIPA challenge to the denial of its zoning request. The Town of Southwest Ranches, Florida denied its application to build a new building on its property because of insufficient parking. The Church claimed that the denial burdened its religious exercise because its current space was insufficient for its programs. The town, in interrogatories, sought a list of all Church members, and the identities of those members whose religious exercise has been burdened by the zoning denial. The Church objected, asserting that furnishing the information would violate its First Amendment associational and religious rights.

The court held that while the church made a prima facie showing of infringement of its rights, the town had demonstrated a compelling need for the information in order to investigate the Church's claims. However, the court concluded that a narrower order would provide the town with relevant information. It ordered the Church merely to identify all members who have attended Church programming where they have had to stand, or have been denied admission, because of inadequate space, and members who have had to reschedule personal events because of space limitations. In addition, this information was placed under a protective order and was to be disclosed only to defendant's attorney. Finally any questioning of Church members whose names are furnished must be limited to factual questions about numbers of people in attendance, and may not involve inquiry into members' religious beliefs.

Court Rejects Ministerial Exception Defense In Firing of Pregnant Teacher

In Redhead v. Conference of Seventh-Day Adventists, 2008 U.S. Dist. LEXIS 49416 (ED NY, June 27, 2008), a New York federal district court, applying the 2nd Circuit's recent "ministerial exception" decision in Rweyemamu v. Cote, refused to grant defendant's motion for summary judgment in a Title VII pregnancy discrimination case. Plaintiff, an unmarried teacher at a Seventh-Day Adventist school, was fired after she became pregnant. The school claimed that she was dismissed because she violated its religious policy against fornication. Plaintiff, Jewel Redhead, argued that this was a pretext for pregnancy discrimination, and that the anti-fornication policy was not applied equally to men and women employees.

The court rejected defendant's "ministerial exception" defense, holding that "while certain statements in Cote can be read to foreclose a ministerial employee from ever being able to challenge his employer's stated religious motive for a discharge..., nothing in that decision ... supports extending a similarly absolute prohibition to secular employees such as plaintiff." The court went on to hold that an inquiry into the school's motivation in this cased would not violate the Establishment Clause because it could be made without calling into question the validity or truthfulness of religious doctrine. The decision reaffirmed the court's 2006 holding in the case, which it had agreed to reconsider in light of the recent 2nd Circuit decision.

NY High Court Rejects Attempt To Require Election At Hindu Temple

New York's high court yesterday rejected claims by dissident members of a Hindu Temple who wanted the court to remove the organization's old trustees, appoint a receiver and order new elections. In Matter of Venigalla v Nori, (NY Ct. App., July 1, 2008), the court held that Art. 9 of the Religious Corporation Law under which the Temple chose to incorporate provides for a self-perpetuating board of trustees. Provisions in organization's 1970 bylaws that called for election of trustees by the "General Body" were invalid because they were in conflict with the Religious Corporation Law. Moreover, the court said, the 1970 bylaws "have long been defunct". [Thanks to J.J. Landa for the lead.]

Obama To Support Expansion of Faith-Based Initiative

An advance text of remarks by Barack Obama to be delivered today in Zanesville, Ohio indicates that Obama will support expansion of President Bush's faith-based initiative. According to the AP: "Obama proposes to elevate the program to a 'moral center' of his administration, by renaming it the Office of Community and Faith-Based Partnerships, and changing training from occasional huge conferences to empowering larger religious charities to mentor smaller ones in their communities." Obama would also allow faith-based charities receiving federal money to make hiring decisions on the basis of religion, but does not support religious restrictions on aid recipients or use of federal funds to proselytize.

UPDATE: The original AP report was inaccurate in saying that Obama will support religious-based hiring. In the full text of his remarks, Obama says just the opposite:

Now, make no mistake, as someone who used to teach constitutional law, I believe deeply in the separation of church and state, but I don’t believe this partnership will endanger that idea – so long as we follow a few basic principles. First, if you get a federal grant, you can’t use that grant money to proselytize to the people you help and you can’t discriminate against them – or against the people you hire – on the basis of their religion. Second, federal dollars that go directly to churches, temples, and mosques can only be used on secular programs. And we’ll also ensure that taxpayer dollars only go to those programs that actually work.

Salon provides further coverage. [Thanks to Blog from the Capital for the lead.]

Russian Musem Officials Being Prosecuted For Religiously Offensive Art Show

In Moscow, the director and the curator of the Andrei Sakharov Museum and Community Center have been charged with inciting religious hatred because of its "Forbidden Art" exhibition held last year. France24 reports that vandals destroyed some of the art, claiming it is offensive to Orthodox Christians, but they were not prosecuted. The art (some of which is shown in the France24 story) often uses Jesus as a theme. For example, one piece superimposes Lenin's head on Jesus on the cross.

Australian State Imposes Rules For World Youth Day Conduct

Later this month, the 6-day long World Youth Day festival will take place in Sydney, Australia. Pope Benedict XVI will be in the country and will lead mass and conduct prayer meetings at the event. Today's International Herald Tribune reports that a regulation promulgated recently by New South Wales gives police and emergency services workers power to order anyone to stop behavior that "causes annoyance or inconvenience to participants in a World Youth Day event." It also bans conduct that obstructs the event or causes risk to the safety of others. Police already have similar authority at large sporting events, but Anna Katzman, president of the New South Wales Bar Association, criticized the new police powers. The provision is part of a broader World Youth Day Regulation 2008 promulgated by New South Wales governor on June 25. (The full text is published in the Government Gazette [scroll to page 5813]). The regulation also requires those selling various items during the festival-- including religious items-- to obtain a permit, and restricts planes carrying advertising banners over events.

Report Supports British Faith Schools

The Centre for Policy Studies, a British think tank, issued a controversial report (full text) this week titled: In Bad Faith: The New Betrayal of Faith Schools. The report's author, Christina Odone, concludes in her 41-page report:

Faith schools have been wrongly attacked for the wrong reasons. Political positioning has led the Minister of Education to denounce these schools. In so doing, he was stoking and validating a smear campaign, orchestrated by a strident secularist lobby, that has long plagued this sector....

The schools do not cream-skim pupils. The intake of Christian schools reflects a broader ethnic range than comprehensive schools in the same area. Faith schools do not turn away children in care..... The schools are not divisive.... Faith schools are not misogynist. Girls who attend Muslim schools are more than twice as likely to go on to higher education than those who attend secular state or independent
schools.

Faith schools do not charge parents for places.... The schools do not create a ghetto mentality.... Faith schools do not teach Creationism in science classes.... Faith schools have an excellent academic record, serve their local communities, and ground their students in a religious as well as the national identity....

[F]or low-income parents, these schools represent the only way their children can be taught the faith that their own family holds dear....For Muslims in particular, faith schools offer a bridge between their religious community and the wider secular society. For Muslim girls, they are the route out of a forced marriage, or their parents’ kitchen, and into higher education.... Quite simply, we need more, not fewer, faith schools.

Odone's report has been attacked by the British Humanist Association and by Ekklesia. (Ekklesia release.)

Dutch Will Not Prosecute Wilders For Anti-Muslim Film and Statements

The Dutch Public Prosecution Service issued a statement yesterday (full text) saying that right-wing politician Geert Wilders will not be prosecuted for a letter he wrote to a national newspaper urging that the Quran be banned in the Netherlands (see prior posting), nor will he be charged in connection with his anti-Muslim film, Fitna (see prior posting). The Prosecution Service's statement said in part:

The fact that statements are hurtful and offensive to a large number of Muslims does not necessarily mean that such statements are punishable. It is true that some statements insult Muslims, but these were made in the context of public debate, which means that the statements are no longer of a punishable nature....

Criticism of religion is not covered by the prohibition of discrimination, unless this criticism includes insulting conclusions about the adherents of the religion concerned.... [T]he Public Prosecution Service arrives at the opinion that neither the film Fitna nor Mr Wilders’s statements incite hatred against Muslims.

CBC News reports on the Prosecution Service's statement.

Epsicopal Bishop Urges Separation of Civil and Religious Marriage

The bishop of the Episcopal Diocese of California is urging that the state begin to follow the pattern of some European countries and separate civil marriage from religious marriage. Today's Sacramento Bee reports that under the proposal, every couple would first marry civilly, and then, if the couple wished, the marriage would be blessed by the church. This removes clergy as agents of the state in performing marriages. The proposal was triggered by the California Supreme Court's recent legalization of gay marriage. (See prior posting.)

Texas Sheriff Apologizes For Staff's Religiously Insensitive E-Mails

For the second time this month, Harris County, Texas, Sheriff Tommy Thomas apologized for e-mails sent by his staff. Yesterday's Houston Chronicle reported that Thomas appeared personally before the Islamic Society of Greater Houston to apologize for e-mails forwarded by Chief Deputy Mike Smith that offended Muslims. One used Muhammad's name to make a joke about eating pork; a second involved cartoons about Muslim terrorists. Last week other e-mails that were racist, insensitive or off color were revealed when a local TV station sued to prevent them from being deleted.

Employer's Proposed Accommodation Found Inadequate In Title VII Case

In Walker v. Alcoa, Inc., 2008 U.S. Dist. LEXIS 45684 (ND IN, June 9, 2008), a Title VII employment discrimination case, an Indiana federal district court held that Alcoa failed to reasonably accommodate a worker who refused to work on Sundays for religious reasons. The court held that while various accommodations were offered by Alcoa to employee Timothy Walker, none of them completely removed the religious conflict. The court said that factual disputes remain as to whether Walker's preferred accommodation-- a permanent guarantee of Sundays off-- would impose an undue hardship on Alcoa. The court, however, dismissed Walker's claim for intentional infliction of emotional distress.

Legal Peyote For Ceremonial Purposes Is Becoming Hard To Find

Yesterday's Brownsville (TX) Herald reports that peyote, used in ceremonies by members of certain Native American religions, is becoming more difficult to obtain. A special exception in federal drug laws-- 42 USC 1992a-- permits Native Americans to use the otherwise banned hallucinogen for traditional religious ceremonial purposes. Peyote grows naturally only in four south Texas counties, and traditionally it has been harvested by peyoteros who then sell it to Native American vhurch members. The DEA and the Texas Department of Public Safety supervise their work. However it has become more profitable for Texas ranchers to lease their land to oil developers or as hunting preserves, than to get fees from peyote harvesters seeking out the rare cactus. This is leading to over-harvesting of the remaining U.S. supplies. Church members believe they must use naturally growing peyote, so greenhouse cultivation is not an option. Mexico has a large supply of the cactus, but is unlikely to allow export because of U.S. pressure on it regarding illegal drugs.

President's Radio Address Focuses On Faith-Based Initiative

President Bush's weekly radio address on Saturday (full text) focused on last week's White House conference on faith-based and community initiatives. The President said in part:

Putting hope in people's hearts is the mission of our Nation's faith-based and community groups, so my Administration decided to treat them as trusted partners. We held these groups to high standards and insisted on demonstrable results. And they have delivered on those expectations.

Through their partnerships with the government, these organizations have helped reduce the number of chronically homeless by nearly 12 percent -- getting more than 20,000 Americans off the streets. They have helped match nearly 90,000 children of prisoners with adult mentors. And they have helped provide services such as job placement for thousands of former inmates. Faith-based and community groups have also had a powerful impact overseas.

Russia's Supreme Court Holds Sunday School Need Not Get State License

Forum 18 today reports that Russia's Supreme Court earlier this month issued an important decision protecting religious organizations. In a June 10 opinion, the court reversed a Smolensk Regional Court that had closed down a Methodist congregation for operating a Sunday school without an educational license. Holding that the lower court's decision was "unlawful and without foundation", the high court concluded that the Sunday school is not covered by either the 1992 Education Law or state education regulations, and so does not require a state licence. However confusion remains over which religious schools-- particularly adult programs-- do require licensing. An Education Ministry official, Yelena Romanova, had previously indicated that no license is required if an educational program results in merely internal qualifications.

Recently Available Prisoner Free Exercise Cases

In Bennett v. Goord, 2008 U.S. Dist. LEXIS 48925 (WD NY, Jan. 7, 2008), a New York federal magistrate judge recommended dismissal of sex offenders' unusual free exercise claim. Plaintiffs argued that the prison counseling program's requirement that they acknowledge their guilt to avoid losing good time credits violates their free exercise rights by "compelling them to recant the truthful testimony they proffered under oath at their trials, where in they placed their hands on the Bible and swore to tell the truth, will subject them to eternal damnation."

In Lombardo v. Holanchock, 2008 U.S. Dist. LEXIS 48753 (SD NY, June 25, 2008), a New York federal district court held that it was reasonable for the defendants to believe that their challenged action was related to a legitimate penological interest. They had restricted a civilly committed offender's participation in one co-ed religious service.

In Maier v. Maurinac, 2008 U.S. Dist. LEXIS 48273 (D MT, June 24, 2008), a Montana federal district court accepted a magistrate's recommendation that a prisoner be permitted to proceed with his free exercise and RLUIPA claims (as well as his ADA claim). However his harassment and due process claims were dismissed.

In Barnes v. Missoula County Detention Facility, 2008 U.S. Dist. LEXIS 48271 (D MT, June 24, 2008), a Montana federal district court accepted a magistrate's recommendation that a Muslim prisoner's free exercise claim be dismissed, with leave to amend. Plaintiff needed to name as defendants the officials who allegedly denied his requests for a no-pork diet, a prayer rug, a kufi and a Qur'an.

In Christiansen v. Adams, 2008 U.S. Dist. LEXIS 47766 (SD IL, June 20, 2008), an Illinois federal district court set aside a prior default judgment against defendant in a case in which a prisoner claimed that officials interfered with his free exercise of religion. Plaintiff claimed officials failed to provide him with a diet and hygiene items that are free of animal products, forced him to attend programs that promoted Christianity and denied him space and time for his prayer and fasting rituals. Defendant originally failed to respond because when served, he no longer was employed by the Department of Corrections and thought that the state Attorney General's office would handle his defense.

Colorado Catholic Bishop Bans Clergy From Giving Political Contributions

The Ft. Collins Coloradoan reports today that Denver Catholic Archbishop Charles J. Chaput will issue a directive this week barring priests and deacons in his diocese from either endorsing political candidates or contributing funds to their campaigns. The ban applies to partisan political campaigns, and not to non-partisan electoral initiatives on issues such as abortion or immigration. Federal Election Commission records show that nationwide during the 2007-08 election cycle, nearly $100,000 has been given to federal candidates and to political parties by approximately 100 Catholic priests and deacons.

Court Says Religious Handbilling In Park Must Be Permitted

In Apple of His Eye, Inc. v. City of St. Louis, Missouri, (ED MO, June 24, 2008), a Missouri federal district court issued a preliminary injunction preventing enforcement of a city ordinance that prohibits distribution of literature in public parks. The lawsuit was brought by individuals who were prevented from handing out religious literature and expressing their religious beliefs during the 2006 gay pride festival held in St. Louis' Tower Grove Park. The court held that: "enjoining the enforcement of § 22.16.100, thereby allowing Plaintiffs to distribute their religious literature and express their religious views in a City park, does not significantly impinge on the public interest, as long as the City retains the authority to enforce other Code provisions which are content-neutral reasonable time, place and manner restrictions, in order to maintain public safety and order." The court also enjoined enforcement of a provision making handbill distributors responsible for proper disposal of the handbills within a 100 foot radius of their distribution. Alliance Defense Fund issued a release on the decision on Thursday.

Moderate Muslims In India Worry About Growing Radicalism

Today's Washington Post reports on the concern among moderate Muslims in India about the growth of stricter forms of Islam in the country. Many of India's Muslims are Barelvi Sunni who are also followers of Sufism, a movement seen as blasphemous by more traditional Muslims. Some moderate mosques have taken to posting signs listing the names of stricter Islamic groups whose followers are not welcome in the mosque. During the past ten years, at mover than 30% of Barelvi Sunni mosques, more fundamentalist Wahhabi groups have contributed funds for repair and have slowly taken them over. In the background of this are a series of bombings during the last three years in India by radical Islamic groups.

Report Says Many Prisoners Claim To Be Jewish To Get Kosher Food

The AP reported Friday on an Idaho prisoner who has been denied kosher food because he has not shown that he is Jewish. The article says that 20,000 inmates nation-wide are claiming to be Jewish without being able to show that this is the case. Gary Friedman, chairman of Jewish Prisoner Services International (JPSI), said that many of these inmates are seeking kosher meals because they offer more variety and are seen as more sanitary. He said that many prisoners "have paranoia about how their food is prepared." Apparently JPSI validates for institutions whether or not a prisoner's claim to be Jewish is accurate.

Origins of "Obama Is A Muslim" Rumor Are Traced

Saturday's Washington Post carries a long article tracing the origins of rumors that Barack Obama is a Muslim. The rumors were spread over the Internet, particularly through chain e-mails. Danielle Allen of the Institute for Advanced Studies, has traced the rumor to an article posted online in 2004 by Andy Martin who, at the time, was attempting to run against Obama for the U.S. Senate. Ted Sampley, a North Carolina man, published a similar article on his own website around the same time. Discussion of these on the Free Republic website discussion forums increased interest in the rumor. However, the exact identity of the person who began the chain of e-mails carrying the rumor has not been determined.

Trial Court Upholds Constitutionality of Virginia's "Division Statute"

In In re Multi-Circuit Episcopal Church Property Litigation, (VA Cir. Ct., June 27, 2008), a Virginial trial court judge upheld the constitutionality of Virginia's "Division Statute" against Free Exercise, Establishment Clause, Equal Protection and Takings Clause challenges. The statute permits the majority of a congregation to decide to which branch of a church its property will belong when there has been a "division" in the church. The court emphasized that the Episcopal Church could have avoided the possibility of a majority in a congregation breaking away and taking church property with it by titling the property in the name of a Bishop or other ecclesiastical officer of the parent church, but did not do so as to the eleven break-away congregations involved in this litigation. (See prior posting and background in Saturday's Fairfax (VA) Times coverage.) In its 49-page letter opinion, the court left open the question of whether the Division statute violates the Contract Clause of the Constitution by impairing contractual relationships between local congregations and the hierarchical church.

In a companion 14-page letter opinion, the court ruled on five other interpretive issues under the Division Statute, concluding that the court's role was merely to determine whether the congregational vote was "fairly taken", and not to consider other factors. It distinguished cases involving the withdrawal of a single congregation from an hierarchical church where there was not a "division" within the church. In an order accompanying the two letter opinions, the court asked for further briefs from the parties on certain remaining procedural issues.

Reports on the court's decision were published by the Washington Post and Episcopal News Service. (See prior related posting.)

US House Passes Resolution Supporting Gospel Music Heritage Month

On June 26, the House of Representatives passed by voice vote H. Con. Res. 370: Expressing Support for Designation of September 2008 as "Gospel Music Heritage Month". In its ten paragraphs extolling gospel music, the only mention of the religious nature of the genre is a paragraph that traces the history of gospel music to "multiple and diverse influences and foundations, including African-American spirituals ... and melodic influences from Irish folk songs and hymns," but saying that gospel music also "borrowed from uniquely American musical styles including ragtime, jazz, and blues". Most of the resolution focuses on the secular contributions of gospel music, such as: "beyond its contribution to the musical tradition of the United States, gospel music has provided a cultural and musical backdrop across all of mainstream media, from hit television series to major Hollywood motion pictures...."

Texas High Court Says Exorcism Claims Entangle Court in Religious Dispute

In Pleasant Glade Assembly of God v. Schubert, (TX Sup. Ct., June 27, 2008), in a 6-3 decision, the Texas Supreme Court yesterday rejected a lower court's award of damages to young woman for false imprisonment and assault by the senior pastor, youth minister and several members of an Assembly of Gods Church. The lawsuit grew out of psychological injuries suffered by then 17-year old Laura Schubert from a "laying of hands" on her to exorcise demonic forces from her. The court held that deciding the case would unconstitutionally entangle it in matters of church doctrine. the majority said:

We do not mean to imply that "under the cloak of religion, persons may, with impunity," commit intentional torts upon their religious adherents.... Moreover, religious practices that threaten the public’s health, safety, or general welfare cannot be tolerated as protected religious belief.... But religious practices that might offend the rights or sensibilities of a non-believer outside the church are entitled to greater latitude when applied to an adherent within the church....

The Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in "laying hands" are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute.

Chief Justice Jefferson in a dissent joined by Justice Green and in party by Justice Johnson said:

After today, a tortfeasor need merely allege a religious motive to deprive a Texas court of jurisdiction to compensate his fellow congregant for emotional damages. This sweeping immunity is inconsistent with United States Supreme Court precedent and extends far beyond the protections our Constitution affords religious conduct. The First Amendment guards religious liberty; it does not sanction intentional abuse in religion’s name.

Justice Green also filed a separate dissent as did Justice Johnson. Today's Austin American-Statesman reports on the decision.

Muslim Physicist Files Suit Charging Energy Department With Discrimination

In Pittsburgh, (PA) yesterday, nuclear physicist Dr. Moniem El-Ganayni filed suit in federal district court charging the U.S. Department of Energy with religious discrimination in its suspension of his security clearance last December. The suspension cost El-Ganayni his job with Bettis Laboratory where he had worked since 1990. Yesterday's Pittsburgh Tribune-Review reported on the case. The Department of Energy has refused on national security grounds to disclose the reason for the security clearance suspension. El-Ganayni, a founder of the Islamic Center of Pittsburgh, says that the FBI and Energy Department have questioned him about his religious beliefs, his work as a prison chaplain, his political views on the Iraq war and speeches he gave at local mosques critical of the FBI. He says he was never questioned about security breaches or handling of classified information. The lawsuit also charges the security clearance suspension violated El-Ganayni's First Amendment free speech rights.

WI High Court Rules on Limitations Issues In Clergy Child Sex Abuse Case

In State of Wisconsin v. MacArthur, (WI Sup. Ct., June 26, 2008), a clergy child sexual abuse case, the Wisconsin Supreme Court held that sexual assault cases that occurred before 1989 are covered by the 6-year statute of limitations then in effect. It also held that the judge in a pretrial proceeding, not the jury at trial, decides whether the statute was tolled because the defendant was not a public resident of the state. Tolling need be shown only by a preponderance of the evidence. Yesterday's Minneapolis Star-Tribune reported on the decision.

President Speaks At National Hispanic Prayer Breakfast

Yesterday the President attended the National Hispanic Prayer Breakfast. In remarks (full text) he said: "Each of you here this morning is here to celebrate a simple and powerful act -- prayer to an Almighty God. You know the comfort that comes from placing our worries in the hands of a higher power. You know the humility that comes from approaching our Maker on bended knee. And you know the strength that comes from lifting our thoughts from worldly cares and focusing on the eternal." His wide-ranging remarks included references to his Faith-Based Initiative, to those serving in the military and to the struggle for human rights in Cuba. He concluded his remarks by thanking the attendees for their spiritual support, saying: "Being your President has been an unimaginable honor and a joyous experience."

9th Circuit Rules In Favor of Egyptian Copts Seeking Asylum

In Morgan v. Mukasey, (9th Cir., June 25, 2008), the U.S. 9th Circuit Court of Appeals reversed a decision by the Board of Immigration Appeals that had denied asylum to an Egyptian Coptic Christian couple and their three children. The immigration judge in the case found that the couple's testimony about their mistreatment in Egypt lacked credibility. The 9th Circuit concluded, however, that "the immigration judge’s negative credibility determination is fatally marred by the errors we have noted." The court also found due process denials as a result of the immigration judge's refusal to permit two of the couple's children to testify and his ignoring of a psychological report. The court also found significant problems with the fact that the government had lost its copy of the record in the case. The court remanded the case and suggested that it be assigned to a different immigration judge. Yesterday's Los Angeles Metropolitan News-Enterprise reports on the decision.

Britain Says Security Measures Limited By Muslim Religious Sensitivities

Today's London's Daily Express discusses a report issued by Britain's Department of Transport on experiments with security alternatives at Tube stations. Concluding that airport style screening is not feasible, the report urges reliance on sniffer dogs and x-ray, but says that use of these is constrained by religious sensitivities of Muslim passengers. Muslims consider dogs spiritually "unclean". According to the report, sniffer dogs should only come in contact with passengers' luggage, since their use is problematic for Muslims if the dogs make direct contact with passengers. In connection with x-ray screening, the report says that some female Muslims object to the use of a body scanner, seeing it as tantamount to being forced to strip.

White House Hosts Conference On Faith-Based Initiative

Yesterday and today the White House is hosting the "Innovations in Effective Compassion" National Conference, a meeting of over 1000 people interested in the federal Faith Based and Community Initiatives. In anticipation of the conference, OFBCI director, Jay Hein, held a press briefing (full text). Responding to a question about church-state issues raised by the program, Hein said:

I think really one of the stellar achievements of this initiative is that we've clarified ... what is allowable and what is not allowable, according to the First Amendment.... the President felt very strongly that it was wrong to just artificially close the door for those who were motivated by their private faith to perform a public service -- if they were creating these housing solutions for the homeless, and other important community outcome.

At the same time, we know that the First Amendment prohibits establishment of church, and so the President said very clearly that tax dollars are not to be used for spiritual mission -- only for secular mission; only for community service mission.

Yesterday as President Bush addressed the conference (full text of remarks), the White House issued a Fact Sheet on the Initiative. The President summarized the achievements of OFBCI:

we have helped level the playing field for faith-based groups and other charities -- especially small organizations that have struggled to compete for funds in the past. We've educated religious groups about their civil rights. We've made the federal grant application process more accessible and transparent. We've trained thousands of federal employees to ensure that government does not discriminate against faith-based organizations. We've ensured that these groups do not have to give up their religious character to receive taxpayer money.

The Justice Department has also released the text of Attorney General Michael B. Mukasey's remarks prepared for the conference. Describing the reexamination of federal policy represented by OFBCI, he said in part:

The Department of Justice has played, and will continue to play, a major role in that reexamination. In doing so, we built upon the principles behind Congress’s Charitable Choice laws and the Supreme Court’s First Amendment jurisprudence: that government must respect the essential character of faith-based providers; that no one needing help may be turned away because of his or her religion and that no one may be forced into religious practices; and that directly-awarded government funds must be spent on social services, not on religion.

UPDATE: Jim Towey, former director of the White House Office of Faith-Based and Community Initiatives,writes a column in the June 28 Washington Post setting out questions on the future of the faith-based initiative that he believes should be asked of the Presidential candidates.