9th Circuit Rejects RFRA Challenge To Hydroelectric Project By Snoqualmie Tribe

In Snoqualmie Indian Tribe v. Federal Energy Regulatory Commission, (9th Cir., Oct. 7, 2008), the U.S. 9th Circuit Court of Appeals upheld FERC's granting of a 40-year license renewal to Puget Sound Energy, Inc. to operate the Snoqualmie Falls Hydroelectric Project. The Falls are a sacred site for religious practices for the Snoqualmie Tribe. Plaintiffs alleged that the project deprived the Tribe of access to the Falls, eliminated the mist necessary for the Tribe’s religious experiences, and changed the sacred water cycle. The court concluded that FERC's action did not violate the Religious Freedom Restoration Act. Applying the test from its recent Navajo Nation decision, the court held that no substantial burden was placed on the Tribe's free exercise of religion. Tribe members will not lose a government benefit or face sanctions for practicing their religion. FERC's application of a different, but more generous, definition was harmless error. The court also rejected the Tribe's challenge under the National Historic Preservation Act, and PSE's cross-petition challenging water flow requirements imposed by FERC. [Thanks to Robert H. Thomas for the lead.]

ACLU Brings Another Suit Against Ohio Judge For Religious Courtroom Poster

The ACLU of Ohio yesterday announced the filing a lawsuit against Richland County Common Pleas Court Judge James DeWeese, challenging a poster hung in his court room that displays "Humanist Principles" next to the Ten Commandments. (Photo of poster.) The complaint (full text), filed in federal district court in the Northern District of Ohio, alleges that the poster violates the Establishment Clause of the U.S. Constitution, as well as Art. I, Sec. 7 of the Ohio Constitution. In 2002, the ACLU obtained an injunction against a different 10 Commandments display in DeWeese's courtroom. In August, an Ohio federal court held that the current display is sufficiently different from the one enjoined in 2002 that DeWeese was not in contempt of the prior injunction. (See prior posting.) That holding apparently led to this new lawsuit.

White House Council Report Supports More Aid For Faith-Based Urban Schools

The White House Domestic Policy Council last week issued a 176-page report titled Preserving a Critical National Asset: America's Disadvantaged Students and the Crisis in Faith-based Urban Schools. The Introduction summarizes the report's recommendations:

[B]etween the 1999–2000 and 2005–06 school years, the K–12 faith-based education sector lost nearly 1,200 schools and nearly 425,000 students. This is a cause for national concern.... [I]f we are to succeed in protecting these valuable education options, more must be done. A sustained collaborative effort by educators, elected officials, philanthropists, neighborhood leaders, and many others will be required. America’s faith-based urban schools—so prized by so many families—are well worth this effort. Their preservation will greatly benefit countless disadvantaged students, numerous underserved communities, and as a result, our Nation at large.

In its section on public policy, the report supports vouchers, "backpack funding" that would allow students to take public dollars to the school of their choice, tax credits, faith-based charter schools and additional support services. Much of the report is a transcript of the White House Summit on Inner-City Children and Urban Schools held last April. (See prior posting.)

Yesterday, Americans United issued a release taking issue with the report, saying: "Government officials should focus on improving public schools, not subsidizing religious education."

Challenge To Green Bay Creche Dismissed On Standing Grounds

In Freedom from Religion Foundation, Inc. v. City of Green Bay, (ED WI, Oct. 7, 2008), a Wisconsin federal district court dismissed an Establishment Clause challenge to a nativity scene displayed last year on the roof of the entrance to Green Bay's City Hall. Plaintiffs sought a declaratory judgment, an injunction and nominal damages. Without reaching the merits, the court concluded that plaintiffs lacked standing because "none of the relief they seek would redress the injuries they claim." City Council had already enacted a moratorium on all displays, until a policy is worked out in the future. Also the city took down the display at issue on December 26, just hours before this lawsuit was filed. The claim for nominal damages was not sufficient by itself to create standing. The AP reported on the decision. (See prior related posting.)

Shariah Compliant Mutual Funds Benefit From U.S. Financial Crisis

Commodity Online reported yesterday that one unanticipated effect of the current U.S. financial crisis is the growth of assets invested in Shariah mutual funds and other Shariah-compliant investments. Because Islamic law prohibits paying or receiving interest, most of the mutual funds have avoided the now-battered stocks of financial services firms. For the same reason, the funds also tend to avoid companies with large amounts of debt on their balance sheets. These companies are now less likely to be hurt by the credit freeze in the U.S.

6th Circuit Upholds Limits On Leaflet Distribution In School Hallways

In M.A.L. v. Kinsland, (6th Cir., Oct. 7, 2008), the U.S. 6th Circuit Court of Appeals upheld restrictions imposed by a Monroe, Michigan middle school on a student's handing out anti-abortion leaflets as part of the national "3rd Annual Pro-Life Day of Silent Solidarity." School rules required that any material students wished to hand out had to first be submitted to the principal. If approved, the principal could designate the time and place for distribution. Even though 14-year old Michael did not submit his leaflets to the principal, the Jefferson Middle School permitted him to post them on hallway bulletin boards and hand them out during lunch in the cafeteria. Michael, however, wanted to distribute the leaflets in school hallways. The court held that the school hallways are nonpublic forums. School officials are permitted to place viewpoint neutral and reasonable time, place and manner restrictions on hallway speech. Jefferson's rules complied with this requirement. They provide clear content-neutral standards for the principal to use in deciding whether or not to approve a proposed distribution. Yesterday's Detroit News reports on the decision.

Ancient Jewish Custom of "Prozbul" Still Being Used to Assure Debt Collectibility

In Israel last week, Rosh Hashanah marked the end of the Sabbatical Year-- the seventh year, in which, according to Jewish law, farm lands are to lie fallow. (See prior posting.) Also, according to a provision of Jewish law that was designed to assist the poor, most outstanding debts are cancelled at the end of the Sabbatical Year. Not surprising to modern economists, this provision in fact was counter-productive, leading to a freezing of the credit system near the Sabbatical Year. So 2,000 years ago, rabbis created a solution-- the "prozbul". Debtors, using this legal loophole, would transfer their debts to a rabbinical court which could collect them even after the end of the Sabbatical Year. Haaretz reported on Sunday that this custom is still being observed in many Jewish communities throughout the world, with assignments being made to the Supreme Rabbinical Court in Jerusalem.

In another twist on the custom, a charitable group in Israel sought out "loans" from donors just before the end of the Sabbatical year, with the understanding that they became grants once Rosh Hashanah passed. The funds are being used by the group, Pa'amonim, to provide budget counseling to those in financial distress. [Thanks to Religion and State In Israel for the lead.]

In Indonesia, Council of Ulemas Gains Strength

This morning's New York Times reports on the growing power in Indonesia of the Council of Ulemas. The quasi-governmental council of Muslim scholars was formed in 1975 by then-President Suharto to limit the growth of political Islam. More recently, however, the Council, which represents established Muslim organizations, has become more radical and politically powerful. It advises the government on religious matters and distributes fatwas that are non-binding. The Council's budget is growing. It has purchased a new office tower for its headquarters and has 150 offices around the country. The Council has increasing support from moderate President Susilo Bambang Yudhoyono who, this summer, at the Council's urging, limited the activities of the Ahmadiya sect. (See prior posting.)

FLDS Church Sues To Challenge Reform of UEP Trust

After years of ignoring Utah state court proceedings that have reformed the United Effort Plan Trust of the FLDS Church, the Church on Monday filed a federal lawsuit alleging that the attorneys general of Utah and Colorado, the special fiduciary appointed by the court and Utah state district court Judge Denise Lindberg have violated the Church's First Amendment free exercise rights. Yesterday's Deseret News and Salt Lake Tribune both reported on the case. The complaint alleges that by reforming the trust in a way that secularizes it, the court has infringed free exercise rights of FLDS members. It contends:

The UEP Trust was formed so FLDS Church members could live the United Order and the Law of Consecration by seeking religious stewardships within the meaning of Holy Scripture. FLDS Church members cannot practice the United Order or the Law of Consecration under the reformed trust.

The lawsuit also alleges that one of the reasons for reforming the trust was the argument that it supported polygamy. The complaint argues that this is invalid because Utah's bigamy statute is unconstitutional. This lawsuit is apparently part of a broader effort to challenge the court's control of the UEP trust-- a change in strategy undertaken after a raid last April on the FLDS Ranch in Eldorado, Texas. (See prior postings 1, 2).

California Brings Back "Bride" and "Groom" On Marriage Licenses

As previously reported, some in California are objecting to the current form of California's marriage licenses. In order to take account of now-recognized same-sex marriages, the forms merely identify the parties to be married as Party A and Party B. In response, the California Department of Public Health last week announced a change. Effective November 17, new forms will be used. They will call for information about the "First Person" and "Second Person" applying for the license. In addition, optional boxes will be available that can be checked to identify the applicants as "Bride" and "Groom". Yesterday, the AP reported on the change. [Thanks to Alliance Alert for the lead.]

Cert. Denied In Three Cases of Interest

Yesterday, as the U.S. Supreme Court opened its Fall Term, it denied certiorari in a number of cases. (Order List). Among them were three cases that relate to law and religion issues:

In Lucero v. Texas (No. 07-1429), the Texas Court of Criminal Appeals held that the jurors' verdict was not affected by their reading of a passage fro the Bible during their deliberations. Christian Science Monitor reported on the denial of cert.

In Boldt v. Boldt (No. 07-1348), a change of custody case, a now-divorced mother who is a member of the Russian Orthodox Church sought to prevent her former husband-- a convert to Judaism-- from having their 12-year old son circumcised. The Oregon Supreme Court remanded the case for the trial court to decide whether the child wants the circumcision. (See prior posting.) The Seattle Times reported on the denial of cert.

In Stanton v. Arizona Life Coalition (No. 07-1366), the 9th Circuit Court of Appeals held that the free speech rights of Life Coalition were violated when the Arizona License Plate Commission denied its application for a special "Choose Life" license plate. The AP reports on the denial of cert. [Thanks to Alliance Alert for the lead.]

Atlanta Church Sues To Challenge Use Permit Denial

Last week in Atlanta, (GA), Kingdom First Ministries filed a lawsuit against the city of Atlanta challenging its refusal to grant the Church a special use permit. The Church wants to operate out of a building it has leased in Atlanta's Historic West End. Under Atlanta's zoning law, a permit is required in this area for churches and synagogues on lots of over one acre. The complaint filed in federal district court (full text) alleges that the denial violates RLUIPA's "equal terms", "substantial burdens" and "unreasonable limitation" provisions, the equal protection clause of the 14th Amendment, and the 1st Amendment's free exercise and free speech protections. Alliance Defense Fund issued a release yesterday announcing the filing of the case.

California Teacher's Religious Discrimination Claim Rejected By Court

In Jalali v. Los Angeles Unified School District, (CA Ct. App., Oct. 2, 2008), a California state appellate court rejected a claim of religious and national origin discrimination in employment brought by an elementary school teacher. Plaintiff is a Muslim of Iranian descent. She claimed discrimination and harassment based on her ethnicity and religion. The court concluded that none of the instances that form the basis of the suit rise to the level of "adverse employment actions" as that term is used in California's Fair Employment and Housing Act. Yesterday's Metropolitan News-Enterprise reported on the decision.

Sikh Temple Members In Metro Portland Sue Leaders Over Building Move

In Vancouver, Washington (part of metropolitan Portland, Oregon), a lawsuit has been filed by four members of the Guru Ram Dass Sikh Community of Vancouver and Portland against leaders of the local Sikh temple (Gurdwara). Yesterday's Vancouver Columbian reports that the internal dispute is over whether the temple should move from its current location to a former athletic club building. The suit alleges that the purchase of the athletic club building should have required a vote of the temple membership. Instead it was approved by an"executive committee" which allegedly seized control of the Gurdwara. One member says that it costs $5000 to join the executive committee, and that the Gurdwara is supposed to be run by a board whose members are elected by verbal vote. The suit also alleges that the executive committee has used intimidation to impose its will on a majority of the Sangat. Meanwhile, neighbors of the athletic club are concerned about increased traffic that may result from the new use of the property.

Court Allows Native American Kindergartner Into Class With Long Hair

The Houston Chronicle reported on Friday that parents of a Needville, Texas kindergartner have been successful in convincing a federal district judge to issue a preliminary injunction ordering school officials to permit 5-year old Adriel Arocha to return to his regular school classroom with his long hair in plain sight. The ACLU of Texas had filed suit on behalf of the Native American student who insisted on wearing his hair long, in violation of the school dress code, for religious reasons. The school had offered to accommodate Arocha by allowing him to wear his hair in a single braid tucked into his shirt. He had refused, and was being taught separately from his classmates in a one-on-one setting until he complied.

Traditional Pre-Yom Kippur Ritual Rasies Some Legal Concerns

The Jewish holiday of Yom Kippur begins Wednesday evening. Legal authorities in some cities are raising questions about a pre-Yom Kippur ceremony observed by some Orthodox Jews. The ritual of Kaparot, in its traditional form, involves swinging a live chicken around one's head, symbolically transferring one's sins to it. Afterwards the chicken is slaughtered and donated as food to the poor.

The Bay Area Independent Media Center reported last week from Los Angeles that the city's Animal Services general manager is discouraging the ceremony. Many Jews, as an alternative, place money in a handkerchief, swing it over their head, and then donate it to the poor. Kaparot using animals may be illegal in Los Angeles. Under Los Angeles Municipal Code, Sec. 53.67, it is illegal to kill "any animal in any religious ... ritual ... [if not done] primarily for food purposes, regardless of whether ... such animal is subsequently consumed."

Meanwhile, according to Friday's Lower Hudson Journal-News, in Monsey, New York, many again this year plan to carry out the traditional pre-Yom Kippur ritual using chickens. In January, a group was fined for not cleaning up the area in which the chickens were slaughtered at last year's ceremony. In past years, the Hudson Valley Humane Society for the Prevention of Cruelty to Animals found chickens brought in for the ceremony housed in poor conditions, sometimes without food or water. However this year a new site is being used, and, according to Humane Society inspectors, those in charge are now treating the chickens well prior to slaughter.

UPDATE: The Lower Hudson Journal (Oct. 10) reported that on the day before Yom Kippur, the county Health Department issued two citations to organizers of the kaparot ceremony in Monsey, NY for washing slaughtered chicken remains down a storm sewer. Last week the Department also issued a citation after the ritual site was littered with trash and chicken remains.

IL Court Applies Abstention Doctrine In Challenge To Hiring of Priest

In Buss v. Przybylo, (IL App. Ct., Sept. 26, 2008), an Illinois appellate court applied the ecclesiastical abstention doctrine to dismiss a complaint by two members of The Shrine of Christ the King challenging a contract entered into by the church to employ Father Chester Przybylo to serve as priest for the congregation. The Shrine was established to promote the Tridentine Latin Mass. Plaintiffs alleged that Przybylo did not have the proper credentials to serve and that he had been accused in a lawsuit of sexually molesting a minor. The court concluded that determining whether a person is qualified to serve as a clergyman is a doctrinal decision. The First Amendment precludes civil courts from involving themselves in matters of church governance, faith or doctrine.

Recent Articles of Interest

From SSRN:

• Intisar A. Rabb, 'We the Jurists': Islamic Constitutionalism in Iraq, (Univ. of Pennsylvania Journal of Constitutional Law, Vol. 10, No. 3, p. 527, March 2008).
• Bryan Thomas, Secular Law and Inscrutable Faith, (September 2008).
• Michael Perry, Human Rights as Morality, Human Rights as Law, (Emory Public Law Research Paper No. 08-45, Sept. 2008).
• Susan Pace Hamill, An Argument for Providing Drug Courts in all Alabama Counties Based on Judeo-Christian Ethics, (Alabama Law Review, Vol. 59, No. 4, 2008).
• Michael A. Simons, Catholic Teaching, Catholic Values, and Catholic Voters: Reflections on Forming Consciences for Faithful Citizenship, (Journal of Catholic Legal Studies, Vol. 47, 2008).

From SmartCILP:

• Barbra Barnett, Twentieth Century Approaches to Defining Religion: Clifford Geertz and the First Amendment, (7 University of Maryland Law Journal of Race, Religion, Gender & Class 93-139, (2007)).
• Franklin I. Gamwell, The Question of Democracy, (57 DePaul Law Review 997-1020, (2008)).
• Steven M. Graves & Christopher L. Peterson, Usury Law and the Christian Right: Faith-Based Political Power and the Geography of American Payday Loan Regulation, (57 Catholic University Law Review 637-700 (2008)).
• Mary R. Jensen, Crisis or Planning: Inter-Jurisdictional Merger of Orthodox Christian Parishes, (10 Duquesne Business Law Journal 19-45 (2008)).
• Andrew Simmonds, Uses of Blood: Re-Reading Matt. 27:25, (19 Law & Critique 165-191 (2008)).

Annual Red Mass Held Today In D.C.

Blog of The Legal Times reports that this morning five Supreme Court justices were in attendance at the 55th annual Red Mass in Washington, sponsored by the John Carroll Society. Four of the 5 sitting Catholic Justices (Roberts, Scalia, Kennedy and Thomas), as well as Justice Breyer, who is Jewish, were there. Many lower court judges, ambassadors, at least one Cabinet member, law school deans and lawyers were also in attendance. The Red Mass is held each year on the Sunday before the opening of the U.S. Supreme Court's fall term, and is meant to bestow the Church's blessing on judges and civic leaders.

9th Circuit: Plaintiff Lacks Standing To Challenge Evolution Website

In Caldwell v. Caldwell, (9th Cir., Oct. 3, 2008), the U.S. 9th Circuit Court of Appeals dismissed for lack of standing plaintiff's Establishment Clause challenge to certain content on an "Understanding Evolution" website created and maintained by the University of California Museum of Paleontology and funded in part by the National Science Foundation. The website, in dealing with misconceptions about evolution, says that evolution and religion are not incompatible. Plaintiff alleges that this exposes her to a government-endorsed religious message that makes her feel like an outsider.

The court, in rejecting plaintiff's claim against the University of California faculty, concluded that plaintiff's

asserted interest- informed participation as a citizen in school board meetings, debates, and elections, especially with respect to selection of instructional materials and how teachers teach the theory of evolution in biology classes in the public schools -- is not sufficiently differentiated and direct to confer standing on her to challenge the University of California's treatment of religious and anti-religious views on evolution. An interest in informed participation in public discourse is one we hold in common as citizens in a democracy.

Judge Fletcher wrote a concurring opinion to spell out in more detail why plaintiff lacks standing. He argued that her injury from offensive content on one of 840 pages in the website was de minimis.

Recent Prisoner and Institutionalized Persons Free Exercise Cases

In Gillard v. Kuykendall, (8th Cir., Oct. 2, 2008), the U.S. 8th Circuit Court of Appeals held that prison authorities violated the free exercise rights of an inmate who, as a member of the New Testament House of Prayer, observed the Sabbath on Saturday. By requiring plaintiff to clean his cell on Saturday mornings, officials substantially burdened his religious beliefs which could have been accommodated by allowing him to clean his cell before or after his Sabbath. AP reported on the decision. (See prior related posting.)

In Lovelace v. Bassett, 2008 U.S. Dist. LEXIS 74190 (WD VA, Sept. 27, 2008), a Virginia federal district court allowed an inmate to proceed with his claim that he was served one-third fewer calories per day during the month of Ramadan. Plaintiff alleged that this violated his rights under the free exercise clause, RLUIPA, the due process clause and the equal protection clause.

In Barnes v. Fedele, 2008 U.S. Dist. LEXIS 74117 (WD NY, Sept. 26, 2008), a New York federal district court permitted a Hebrew Israelite inmate to proceed with his claim that his religious head gear was improperly taken from his cell. He was also permitted to proceed with his complaint that he was improperly denied kosher meals.

In El Badrawi v. Department of Homeland Security, 2008 U.S. Dist. LEXIS 74499 (D CT, Sept. 22, 2008), a former inmate brought damage claims in part for officials' refusal to serve him meals consistent with his Ramadan observance. The court permitted him to proceed with his claim that this violated his 1st Amendment rights. It also granted him leave to amend his RLUIPA claim to sue the warden in his individual capacity. The court held that RLUIPA does not authorize a claim for damages in a suit against the warden in his official capacity.

In Richardson v. Zimmerman, 2008 U.S. Dist. LEXIS 74993 (CD IL, Sept. 29, 2008), an Illinois federal district court rejected complaints about food substitutions and meal quality brought as free exercise and equal protection claims by an African Hebrew Israelite inmate who was being served a vegan diet.

Strutton v. Meade, 2008 U.S. Dist. LEXIS 76608 (ED MO, Sept. 30, 2008), involved free exercise and RLUIPA claims by a Wiccan who had been civilly committed to the Missouri Sexual Offender Treatment Center. Plaintiff asserted a variety of infringements of his ability to practice his religious faith and possess religious items. While rejecting many of his claims, the court concluded that there was enough evidence for plaintiff to move ahead on his challenge to the limit on Wicca group worship to one hour per week. It also permitted him to proceed on his Establishment Clause challenge to a requirement that he participate in Christian prayer at addiction support group meetings.

In Pethe v. Henderson, 2008 U.S. Dist. LEXIS 75847 (ND MS, Sept. 29, 2008), a Mississippi federal district court held that plaintiff had failed to prove that he was not provided the proper diet during the Feast of Unleavened Bread that he observed as a member of the Judaian-Christian faith of the United Church of God.

In United States v. Amawi, 2008 U.S. Dist. LEXIS 76097 (ND OH, Aug. 28, 2008), an Ohio federal district court rejected a Muslim prisoner's objections on religious grounds to prison rules requiring him to be strip searched after contact visits with his counsel.

In Warren v. Peterson, 2008 U.S. Dist. LEXIS 76453 (ND IL, Sept. 25, 2008), an Illinois federal district court allowed an African Hebrew Israelite inmate to proceed with his claim against a prison chaplain (but not against other defendants) alleging that he failed to receive the vegan meals for which he had been approved because of the chaplain's failure to process required paper work .

In Robinson v. United States Government, 2008 U.S. Dist. LEXIS 76653 (ED NY, Sept. 18, 2008), a New York federal district court permitted an inmate to move ahead with his complaint against a corrections officer who allegedly broke up a Jewish high holiday service being held at a detention center and made anti-Semitic remarks to plaintiff. Claims against the Bureau of Prisons and the United States were dismissed.

In Tafari v. Annetts, 2008 U.S. Dist. LEXIS 77015 (SDNY, Oct. 2, 2008), a New York federal district court agreed with a magistrate judge's recommendation to grant summary judgment to defendants in a case in which a prisoner asserted violations of his rights when he was denied kosher meals on four occasions during his transfer between institutions.

Subpoena For Megachurch Records Turns On Technicality of IRS Bureaucracy

The Minnesota Independent and the Minneapolis Star-Tribune report that on Thursday a federal magistrate judge in Minneapolis heard arguments on whether the court should enforce an IRS subpoena for financial documents against Living Word Christian Center. The IRS is investigating loans and compensation paid by the Brooklyn Park (MN) megachurch to its pastor, Mac Hammond. While broad church-state issues, and concerns about the privacy of donors, are at stake, this aspect of the case turns on technical language imposing special procedures for IRS investigations of churches.

Internal Revenue Code Sec. 7611 , enacted in 1969, among other things requires that a church tax inquiry can be commenced only if it is authorized by "an appropriate high-level Treasury official." The section defines that as an official "whose rank is no lower than that of a principal Internal Revenue officer for an internal revenue region." However, in 1998, the IRS was restructured so that regional commissioners were eliminated and instead a system of national directors for separate types of taxpayers was set up. In this case, the investigation was authorized by the director of exempt organization examinations -- a position that is fourth in line in the IRS organization chart. Living Word Church argues that Sec. 7611 requires a higher level official to approve the summons. (See prior related posting.)

Federal Lawsuit Challenges National Day of Prayer

The Freedom from Religion Foundation filed suit on Friday in a Wisconsin federal district court challenging the federal law that creates a national Day of Prayer. (Press release.) The complaint (full text) seeks a declaratory judgment that Public Law 100-307 and Presidential and Gubernatorial Proclamations calling on citizens to pray violate the Establishment Clause. Named defendants are President Bush, White House Press Secretary Dana Perino, Wisconsin Governor Jim Doyle and National Day of Prayer Task Force Chairman Shirley Dobson. The private NDP Task Force is described in the complaint as "a willful participant with state and federal officials in joint action that violates the Establishment Clause." (See prior related posting.)

British Court Grants Asylum To Muslim Converts To Christianity

Earlier this week, the Christian Post reported that a British immigration appeals court has granted asylum to a couple that had converted from Islam to evangelical Christianity. For the first time, the court recognized that the couple faced threats, including death threats, if they returned to Syria, the husband's country of origin. Six members of the U.S. Congress had sent a letter to the British appeals court in August urging it to find that the couple would face severe religious persecution if they were returned to Syria.

School Ban On Student Speech Claiming Supremacy of Religious View Struck Down

Miller v. Penn Manor School District, (ED PA, Sept. 30, 2008), involved a challenge to a Pennsylvania school district's Student Expression policy. It was brought by a high school student who was told he could not wear to school a T-shirt that promoted homeland security and was imprinted on the back, in part, with the words: "Special Issue-Resident-Lifetime License, United States Terrorist Hunting Permit..." While the court upheld most of the school district's policy-- including the prohibition on speech that incites violence-- the court issued a preliminary injunction against enforcing two portions of the policy. It found the ban on student dress or expression that "is a distraction to the educational environment" to be overbroad and vague. It also found the ban on student expressions that "seek to establish the supremacy of a particular religious denomination, sect or point of view" to be overbroad.

Court Rejects Establishment Clause Challenge To School Program

In Freedom from Religion Foundation, Inc. v. Cherry Creek School District, 2008 U.S. Dist. LEXIS 76938 (D CO, Sept. 8, 2008), a Colorado federal district court rejected an Establishment Clause challenge to a school district program called "40 Developmental Assets." The program listed 40 positive factors that parents are encouraged to build in their children. Plaintiffs objected to one of the listed assets-- encouraging children to spend one or more hours per week in activities in a religious institution. The court held that the overall program had a secular purpose and would not likely be perceived by non-religious parents as disapproving their beliefs. The court said that the program had to be considered as a whole, instead of dissecting out one of forty elements for separate examination. (See prior related posting.)

Federal Court Removal Denied For Counterclaims In Yeshiva Housing Case

In Village of Chestnut Ridge v. Town of Ramapo, 2008 U.S. Dist. LEXIS 76881 (SDNY, Sept. 30, 2008), a New York federal district court rejected an attempt by defendant alleging RLUIPA and Fair Housing Act counterclaims to remove a case from New York state courts to federal court. The original lawsuit included 14th Amendment and Establishment Clause challenges to a zoning law enacted by the town of Ramapo that would allow high density adult student housing to be built in a residential area by Orthodox Jewish educational institutions. The court held that the attempt by defendant to remove the case to federal court was not timely because in fact the land at issue had been secretly transferred to the defendant seeking removal early in the litigation, and defendant should have become a party at that time. The court went on to hold that even if removal was timely, it should not be permitted because there were no federal claims alleged that justified removal. (See prior related posting.)

Prosperity Gospel May Have Helped Create Sub-Prime Mortgage Victims

On Wednesday, banks received details from the FHA on implementing the new "Hope for Homeowners" program. The program will allow some over-extended borrowers to refinance into more affordable mortgages. (CNN Money). It may be that one group of religious believers will be particularly interested. Time Magazine today suggests that the teachings of pastors preaching the Prosperity Gospel have made their followers more likely to be victims in the current mortgage crisis. The central teaching of these churches-- that God will "make a way" for the poor to enjoy the luxuries of life —encouraged followers to take out sub-prime mortgages that were beyond their means. Author Jonathan Walton says congregants were likely to believe: "God caused the bank to ignore my credit score and blessed me with my first house." Those who study the movement say it is likely that Prosperity Gospel congregants have been disproportionately victims in the current bursting of the housing bubble.

Court Finds No Viewpoint Discrimination In Teacher's Actions On Jesus Poster

In Peck v. Baldwinsville Central School District, (ND NY, Sept. 30, 2008), a New York federal district court concluded that a kindergarten teacher and a school principal did not engage in viewpoint discrimination when they displayed a student's poster on environmental issues only after folding a picture of Jesus on the poster under so that it was not visible. The court found that plaintiffs had not proven that the teacher would have treated a purely secular image that was non-responsive to a class assignment any differently. The posters were to display what students had learned from the environmental curriculum they had studied. The court also concluded that the teacher and principal had a legitimate pedagogical concern that if the poster were displayed in full, other parents might think that the school was teaching religion. The case was on remand to the court from the Second Circuit. (See prior posting.)

FLDS Mother Seeks Damages Against Texas For Legal Action After Ranch Raid

In the continuing litigation stemming from Texas Child Protective Services' (CPS) raid last April on an FLDS Ranch compound, one mother has taken the offensive in attempting to get the case against her, and efforts to remove her child, dismissed. Yesterday's Deseret News reports that Naomi Johnson has filed a motion alleging that the abuse charges against her were frivolous, and that the state is continuing the case merely as an effort to save face and minimize its liability. Johnson is not only seeking dismissal, but also an award of damages and attorneys' fees, claiming that the only purpose for CPS' action was to destroy "disfavored religious beliefs, to turn a profit and to disseminate false allegations of abuse to other agencies." Litigation has already been dropped against some 304 of the original 439 children who were taken into temporary custody and then released back to a parent after CPS lost in the Texas Supreme Court.

Amish Farmer's Fine For Refusing To Comply With Waste Disposal Rules Upheld

In Ebensburg, Pennsylvania, a state court judge affirmed the earlier conviction of Amish farmer Andy Swartzentruber who refused on religious grounds to install holding tanks and contract with a certified sewage hauler for disposal of waste from two out houses on his property used by Amish school students. However the court dismissed charges against school elder Sam Yoder, saying that compliance was the responsibility of the landowner. Yesterday's Morning Call reports that the toilets at issue have now been replaced, but the new ones do not comply with regulations either. The attorney for the county Sewage Enforcement Agency said that obtaining a permit to treat sewage with proper levels of lime would satisfy regulations and allow dumping of human waste on a field as the Amish now do. Members of the Amish community are willing to use the lime, but are not willing to apply for the permit. Defendant Andy Swartzentruber was ordered by the court to bring the toilets into compliance within 30 days or else pay a $500 fine. (See prior related posting.)

ADL Reports Increase In Anti-Semitic Internet Postings During Financial Crisis

The Anti-Defamation League reported yesterday that as the financial crisis grows in the U.S., there has been a dramatic increase in the number of anti-Semitic statements posted on Internet discussion sites relating to finance and the economy. Many of the messages charging Jewish control of government and finance surfaced in message board comments relating to the collapse of Lehman Brothers. Operators moderating message boards, such as Yahoo! Finance, have been quickly removing the anti-Semitic postings, but their volume has made it difficult to keep up with them. A number of blogs and conspiracy, neo-Nazi and white supremacy websites have also carried anti-Jewish comments relating to the economic situation.

Parents Charged With Homicide For Relying On Faith Healing

In Clackamas County, Oregon, in the second case of its kind in the county this year (see prior posting), parents have been arrested for negligent homicide for failing to seek medical treatment for their son. KTVB News reports that Jeffrey and Marci Beagley voluntarily surrendered themselves yesterday and posted bond in connection with charges growing out of the death of 16-year Neal Beagley from complications from a urinary tract infection. The parents attempted to heal their son with prayer instead of medical intervention.

Arkansas Court of Appeals Says Mother's Religion Was Not Factor In Custody Award

In Hicks v. Cook, (AR Ct. App., Oct. 1, 2008), Andrea Hicks, mother of a 2-year old child, appealed a trial court's shifting of custody to child's father, arguing that the trial judge impermissibly based his decision on his perception of Hicks religious beliefs. In his decision, the trial judge indicated concern about Hicks comments that she was involved with the Wicca religion. On appeal, Judge Gladwin's opinion for himself and Judge Glover found that the trial court did not base its decision on Hicks' religious involvement, and, even if it did, this was harmless error in light of other grounds for changing custody. Judge Griffen wrote a concurring opinion, as did Judge Marshall. Judge Hart dissented, as did Judge Heffley. Foster's Daily Democrat reported on the decision yesterday.

NY School's Plan For Yoga Creates Church-State Controversy

In Massena, New York, to the surprise of the Massena Board of Education, a church-state controversy has broken out over plans to introduce yoga in the classroom as a technique to relieve stress before exams. Newsday reported yesterday that the Board has agreed to delay its decision on adopting the program and has invited two teachers who have developed the proposal to demonstrate the relaxation techniques at this month's Board meeting. Rev. Colin Lucid of Calvary Baptist Church, one of the opponents, said: "We are not opposed to the benefits. We can understand the benefits. We are opposed to the philosophy behind it and that has its ties in Hinduism and the way they were presenting it." School board president Julie Reagan, however, said that there are no religious motives involved and that Federal grants are available to teachers seeking yoga certification. Some 100 schools in 26 states have already introduced yoga.

2009 Religious Freedom Moot Court Announced

George Washington University Law School has announced that it will host the 2009 National Religious Freedom Moot Court on Feb. 6-7. According to organizers, this year's problem will deal with the applicability of the "ministerial exception" in state civil rights claims alleging employment discrimination on the basis of sexual orientation.

Author Suggests Church-State Questions For Tonight's Vice-Presidential Debate

Author Susan Jacoby, writing at Newsweek's On Faith, sets out her suggestions for the questions on church-state issues that should be asked of Joe Biden and Sarah Palin at tonight's vice-presidential debate. She suggests seven specific questions, with an emphasis on how the candidates view-- both broadly and narrowly-- church-state separation issues.

UPDATE: On last night's CBS Evening News, Katie Couric, ahead of tonight's debate, asked each of the vice-presidential candidates several questions. Two were of particular interest. Here are their answers to a question on church-state separation, and here are their responses to a question about Roe v. Wade.

Army Confirms Anti-Semitic Incident During Solider's Basic Training

The Public Record reported Tuesday that Georgia Senator Saxby Chambliss received confirmation from the Pentagon of an anti-Semitic incident suffered by Army Private Michael Handman during basic training at Ft. Benning, GA. Handman was subjected to anti-Jewish epithets and forced by his drill sergeants to remove his yarmulke (head covering) during dinner. Subsequently he was beaten by fellow-soldiers, resulting in his being hospitalized with a concussion.

A Pentagon investigation into the anti-Semitism (but not the beating) concluded that two non-commissioned officers had: "inadvertently violated the Army Regulation concerning the free exercise of religion by requiring the Soldier to remove his yarmulke and by using inappropriate terms when referencing the Jewish faith. While the actions of the NCO’s were not meant to be malicious, and were done out of ignorance for regulations and cultural awareness, this does not excuse their conduct. The command intends to reprimand both NCO’s for their conduct; require them to present formal blocks of instruction on what religious are authorized for wear; and finally, the battalion chaplain will instruct all cadre members on the Army policy concerning religious accommodation."

Parliament Expands Churches In Which Anglican Couples May Be Married

In Britain, Parliament enacts changes to rules governing the Church of England, once they have been approved by the General Synod of the Church of England. (Fact Sheet on Church of England Measures). Yesterday's Christian Post reports that Parliament's new Church of England Marriage Measure 2008 has just gone into effect. The new law makes it easier for couples to be married in the Church of England by expanding the parish churches they can choose. They no longer need to currently live or attend church in the parish in which they wish to have their marriage ceremony. Now it is also enough that they previously lived or attended church there, that the bride or groom was baptised or confirmed in the parish, their parents lived or attended church there, or their parents or grandparents were married there.

Suit Challenges College's Rules On Access For Speakers

The Alliance Defense Fund this week reported on a lawsuit it has filed challenging speech restrictions at a California community college. In Dozier v. Members of the Board of Governors, Yuba College District, (ED CA filed 9,29/2008), (full text of complaint), a college student challenged campus rules and permit requirements that limited his ability to preach and hand out gospel tracts in outdoor areas of the campus. (ADF press release.)

Justice Department Sues DC Transit Authority For Religious Discrimination

Washington Business Journal reported yesterday that the Department of Justice has filed a Title VII religious discrimination lawsuit against Washington DC's Metropolitan Area Transit Authority. Suing on behalf of Gloria Jones, a member of the Apostolic Pentecostal faith, the complaint alleges that WMATA violated its obligation to accommodate religious beliefs when it refused to hire Jones because her religious views require her to wear long skirts. This is inconsistent with WAMTA's uniform requirements that call for drivers to wear pants. According to the Justice Department's release on the case, the complaint "seeks an order requiring WMATA to reasonably accommodate and provide equal employment opportunities for persons whose religious practices require an accommodation to the uniform policy..., monetary damages and other relief...."

Episcopal Church Settles With 2 Break-Away Virginia Congregations

The Episcopal Church and the Episcopal Diocese of Virginia have settled with two of eleven break-away congregations that they sued after the congregations joined the more conservative the Convocation of Anglicans in North America. Yesterday's Anglican Journal reports that the settlement is with Potomac Falls Church in Potomac Falls, and Christ the Redeemer Church in Chantilly, neither of which held real property. The two congregations will make a payment of an undisclosed amount and will be released from future liability arising from the lawsuit. The other nine congregations, which are attempting to keep their church buildings and other property after the break off, remain in extended litigation. (See prior related posting.)

Sarkozy Defends Ban On Sikh Turbans At Summit With India's Prime Minister

Tuesday's issue of New Europe reports that French President Nicolas Sarkozy was placed in an awkward position at the press conference concluding the European Union/India Summit in Marseille. Standing next to Indian Prime Minister Manmohan Singh, a Sikh who was wearing a light blue turban, Sarkozy was asked by a reporter about a French law that prohibits Sikh civil servants from wearing turbans at work, and Sikh public school students from wearing them in school. An irritated Sarkozy replied: "Sir, we respect Sikhs. We respect their customs, their traditions. They are most welcome to France. But sir, we have rules, rules concerning the neutrality of civil servants, rules concerning secularism, and these rules don't apply only to Sikhs, they apply to Muslims or others. They apply to all on the territory of the French Republic." (See prior related posting.)

Israeli Religious Papers Have Issues on Covering Likely New Prime Minister

The New York Daily News reported last week on an unusual issue of press coverage created by Israel’s Haredi (ultra orthodox Jewish) newspapers. The newspapers never publish photos of women, citing concerns relating to religious modesty. The rule will continue to be applied to Tzipi Livni who has been chosen to become the country’s new prime minister, if she can put a coalition together. Haredi papers blur the faces of women when they are in photos used for other purposes. In addition, the Haredi papers will not use the first name, "Tzipi", that Livni uses. It is short for "Tziporah". Haredi will not address a woman by her first name, especially if it is a nickname. So these papers will refer to the potential Prime Minister as "Mrs. T. Livni" or just "Mrs. Livni." [Thanks to Religion and State in Israel for the lead.]

Follow-Up On ADF's Pulpit Freedom Sunday

Alliance Defense Fund has published the names of 33 churches and their pastors who participated in Pulpit Freedom Sunday last weekend. The ADF press release said "Pastors participating in Pulpit Freedom Sunday preached from their pulpits Sept. 28 about the moral qualifications of candidates seeking political office. The pastors exercised their First Amendment right to preach on the subject, despite federal tax regulations that prohibit intervening or participating in a political campaign." (See prior related posting.) On Monday Americans United asked the Internal Revenue Service to investigate six of the churches. (Press release).

Rosh Hashanah Begins Tonight; Bush Sends Greetings; Financial Bailout Vote Impacted

President Bush today issued a message (full text) sending "best wishes for a meaningful Rosh Hashanah" to people of the Jewish faith in the U.S. and around the world. The holiday begins at sundown this evening. He described the holiday as "an opportunity to celebrate the history of the Jewish people and the values that bind us all together."

Meanwhile, the U.S. Senate was scheduled to adjourn beginning at sundown Monday in honor of Rosh Hashanah. That however creates problems with obtaining approval of critical financial bailout legislation that was drafted over the weekend. Politco reported yesterday that Sen. Judd Gregg, who led negotiations on the bill for the Senate Republicans, pleaded for Senators to bring the bill to a vote today because of the need for swift action. CQ Politics today reports that it is likely that a cloture vote on the bill will be set for Wednesday in the Senate. Reform Jews generally celebrate Rosh Hashanah for one day, while Orthodox and Conservative Jews celebrate it for two days. The financial bailout vote schedule could pose a moral dilemma for some of the 13 Jewish members of the Senate who would need to decide whether to attend the Wednesday Senate session on a holiday during which observant Jews generally abstain from work and travel.

Virginia Buddhists File RLUIPA Suit Over Zoning Denial

Last month, the Virginia Beach (VA) city council refused to renew a temporary use permit that would have allowed the Buddhist Education Center of America Inc. to continue to hold Sunday services in a monk's home. The Virginian Pilot reports that last Thursday, Buddhist monks and their followers filed a lawsuit in federal court alleging that the permit denial violates RLUIPA and their First Amendment free exercise rights. (See prior related posting.)

Spa Owner Says 1st Amendment Protects "Laying On of Hands"

In July, a civil jury in Tuscon, Arizona found against John LaVoie in a civil forfeiture proceeding charging him with prostitution related offenses. Today's Arizona Star reports that LaVoie, who operates the Angel's Heaven Relaxation Spa, says he is pastor of the Church of Liberty. He is objecting to the proposed order that he forfeit nearly $2 million in assets, asserting a free exercise defense. He argues that Spa employees were merely comforting the afflicted through the religious act of "laying on of hands." Meanwhile it turns out that in February 2006, while LaVoie was being investigated, Pima County, using its random selection procedure to invite ministers to deliver an invocation at the Board of Supervisors meeting, heard an invocation from LaVoie.

British Muslim Driver Sues Over Handling Alcohol

Today's London Daily Express reports on a suit filed in an industrial tribunal in the British city of Birmingham by a Muslim fork lift truck driver. Mohammed Ahmed brought suit against the Tesco supermarkets after it turned out that his job required him to handle alcohol-- an action that violates his religious beliefs. Ahmed says that after he filed a grievance, he was harassed. Tesco's lawyer says that Ahmed was advised at the outset about the duties required by the job.

New Articles of Interest This Week Abound

From SSRN (U.S. law):

• Lloyd H. Mayer, The Pulpit, Politics, RFRA, and Institutional Free Exercise, (Notre Dame Legal Studies Paper No. 08-30, Sept. 2008).
• Ira C. Lupu & Robert W. Tuttle, Courts, Clergy, and Congregations: Disputes between Religious Institutions and Their Leaders, (Georgetown Journal of Law & Public Policy, 2009).
• Lynn S. Branham, 'The Devil is in the Details': A Continued Dissection of the Constitutionality of Faith-Based Prison Units, (U Iowa Legal Studies Research Paper No. 08-35 (Sept. 2008).
• Aaron K. Block, When Money Is Tight, Is Strict Scrutiny Loose?: Cost Sensitivity as a Compelling Governmental Interest Under the Religious Land Use & Institutionalized Persons Act of 2000, (September, 23 2008).
• Scott C. Idleman, Private Conscience, Public Duties: The Unavoidable Conflicts Facing a Catholic Justice, (University of St. Thomas Law Journal, Vol. 4, pp. 312-324, 2007).
• Martha M. Ertman, 'They Ain't Whites; They're Mormons': An Illustrated History of Polygamy as Race Treason, (U. of Maryland Legal Studies Research Paper No. 2008-37, September 2008).
• Ira C. Lupu & Robert W. Tuttle, Constitutional Change and Responsibilities of Governance Pertaining to the Faith-Based and Community Initiative, in Research on Innovations in Effective Compassion (HHS, June 2008).

From SSRN (non-US law):

• Kathryn Chan, Taxing Charities/Imposer Les Organismes DeBienfaisance: Harmonization and Dissonance in Canadian Charity Law, (Canadian Tax Journal/ Reue Fiscale Canadienne, Vol. 55, No. 3, 2007).
• Marc Hertogh, What's in a Handshake? Legal Equality and Legal Consciousness in the Netherlands, (Social & Legal Studies, Vol. 18, No. 2, 2009).
• Smita Narula, Equal by Law, Unequal by Caste: The 'Untouchable' Condition in Critical Race Perspective, (Wisconsin International Law Journal, Vol. 26, p. 255, 2008).

From SmartCILP:

• Symposium, The Constitutionality of Faith-Based Prison Units [full text of all articles], 6 Ave Maria Law Review 341-511 (2008).
• David C. Flatto, The King and I: The Separation of Powers in Early Hebraic Political Theory, 20 Yale Journal of Law & Humanities 61-110 (2008).

Four Texas School Board Members Urge Controversial Bible Curriculum

Last summer, the Texas State Board of Education approved only general guidelines for elective courses on the impact of the Hebrew Bible (Old Testament) and New Testament on the History and Literature of Western Civilization. (See prior posting.) So now, according to an AP report yesterday, four individual members of the 15-person Board have sent an e-mail to all school districts encouraging them to adopt one specific approach-- the National Council On Bible Curriculum In Public Schools. That curriculum has been criticized by some as promoting Protestant perspectives, and last March, Ector County, Texas, schools settled a lawsuit with an agreement not to use that curriculum in the future. (See prior posting.)

Texas A&M Sued For Discrimination By Two Iraqi Researchers

The Houston Chronicle reported last week that two Iraqi doctors who formerly worked as researchers on in vitro fertilization at Texas A&M University have sued the University, several of its units and former co-workers for religious, racial and national origin discrimination. The researchers, who fled Iraq because of opposition to their research, say that they were regularly mocked, and that animal feces and urine were thrown on their prayer rug. After an investigation, the school refused to take action on the complaints.

U.S. House Calls On Lithuania To Preserve Jewish Cemetery

On Thursday, the U.S. House of Representatives passed by a vote of 414-1 and sent to the Senate H. Con. Res. 255. The Resolution expresses strong support for the work of the United States Commission for the Preservation of America's Heritage Abroad which works to preserve sacred historical sites in Eastern and Central Europe. The Resolution goes on to protest a decision by the government of Lithuania to permit commercial construction "within the perceived boundaries" of a 500-year old Jewish cemetery in Vilnius.

Maldives Supreme Court Hears Challenge To President's Religious Beliefs

In the Maldives, the country's Supreme Court is hearing a fascinating challenge to the right of President Maumoon Abdul Gayoom to stand for re-election. Under the Maldives constitution, only Muslims are entitled to citizenship. (See prior posting.) The conservative Adhaalath Party claims that Gayoom is an "infidel" because he has denied Jesus' second coming, the teaching that the Quran will ascend to heaven on judgment day and the doctrine of blood money. He also disagrees with scholars on which offenses can be pardoned and he says that veiling for women is not compulsory. His opponents also claim he has attempted to spread Christianity in the Maldives. The Election Commission ruled in Gayoom's favor, saying that he had been issued a Maldivian identity card which is only issued to Muslims, and that the challengers had not carried their burden of proving otherwise.

Minivan News reports that arguments in an appeal of the Election Commission decision began in the Supreme Court on Thursday and continue today. Gayoom's lawyers argue that the texts relied upon by the Adhaalath Party are open to interpretation. Underlying the dispute are Gayoom's attempts to creack down on Islamic extremism since a bombing in September 2007 aimed at the country's tourism industry.

Orlando's Ordinance Restricting Feeding Homeless In Parks Held Unconstitutional

In First Vagabonds Church of God v. City of Orlando, (MD FL, Sept. 26, 2008), a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. The court held that the activist group, Orlando Food Not Bombs, was engaged in expressive conduct and that the Ordinance prevents OFNB "from communicating its Constitutionally protected speech at a meaningful location which, from time immemorial, has been the traditional public forum for free speech."

Moving to the free exercise claim, while the court had previously held that the Ordinance did not substantially burden First Vagabond Church of God's exercise of religion under Florida's Religious Freedom Restoration Act (see prior posting), it now held that nevertheless it does violate the church's First Amendment free exercise rights. The court concluded that the city has no rational basis for the Ordinance. It found that "none of the legitimate government interests proffered by the City are served by this Ordinance." Friday's Orlando Sentinel reported on the decision, describing the plaintiffs as "a motley group of activists who have been feeding the homeless."

Recent Prisoner Free Exercise Cases

In Reid v. Wiley, 2008 U.S. Dist. LEXIS 73372 (D CO, Sept. 24, 2008), a Colorado federal district court rejected a magistrate judge's recommendation that an inmate's free exercise claim be dismissed because he failed to allege what religion he practices. The court said it is well known that plaintiff is in prison specifically because he committed highly publicized acts of terrorism connected with groups claiming to espouse Islam.

In Falls v. Alton City Jail, 2008 U.S. Dist. LEXIS 72869 (SD IL, Sept. 24, 2008), a federal district judge dismissed an inmate's complaint that Islamic Imams were not allowed to visit the jail for religious services, finding that plaintiff had failed to exhaust his available administrative remedies before filing suit.

In McDowell v. Heffren, 2008 U.S. Dist. LEXIS 71677 (CD IL, Sept. 22, 2008), an Illinois federal district court rejected an inmate's claims that he was disciplined for reciting a prayer, that he was fired from his prison job on the basis of religion and race, and that his religious tape was illegally confiscated.

Malaysia's High Court Upholds State Laws Prohibiting Religious Deviations

Saturday's Borneo Post reports that Malaysia's Federal Court has upheld the constitutionality of the state of Selangor's Syariah law and a similar statute enacted by the state of Terengganu. The laws prohibit a Muslim from disobeying the Sultan as head of the religion of Islam or disobeying fatwas. One of the defendants involved was Abdul Kahar Ahmad who had declared himself a prophet. Other defendants were his followers, or, in one case, a follower of the Ayah Pin sect. Defendants argued that the statutes under which they were prosecuted violate Section 11 of the Constitution that protects of the right to profess one's religion. The court held, however, that state legislatures can prohibit those who profess Islam from going against the faith's precepts.

Court Defines Funding Criteria For University of Wisconsin Student Groups

In a long-running debate over use of student activity fees to fund a Catholic student group’s activities at the University of Wisconsin- Madison, a Wisconsin federal district court has issued a declaratory judgment requiring that funding decisions be made on a viewpoint neutral case-by-case basis, instead of categorically denying funding to worship, proselytizing and activities involving sectarian religious instruction. In Roman Catholic Foundation v. Regents of the University of Wisconsin System, 2008 U.S. Dist. LEXIS 72980 (WD WI, Sept. 24, 2008), the court dissolved an earlier preliminary injunction (see prior posting) and instead merely ruled that "the University may not categorically exclude worship, proselytizing or sectarian instruction from segregated fee funding unless it does so pursuant to a rationale that is reasonable in light of the purposes of the forum and viewpoint neutral."

Under this rationale, according to the court, the University could refuse to fund worship if it determined that

activities involving little more than an assembly of students who offer praise to a person, object or idea are less valuable to the forum than an assembly of students who engage in the back-and-forth discussion of an idea. Thus, the University may decline to fund activities involving nothing more than mechanical praise, provided that it does not simultaneously fund secular activities that lack a discussion component.

Applying this standard, the court concluded that the University had failed to adequately justify specific refusals to fund activities challenged in this case.

Court Rejects Employee's Discrimination and Establishment Clause Claims

In Menes v. City University of New York Hunter College, 2008 U.S. Dist. LEXIS 73304 (SD NY, Sept. 25, 2008), a New York federal district court rejected an Establishment Clause claim and a Title VII religious discrimination in employment claim brought by Herman Menes, an accountant who works at Hunter College. Menes unsuccessfully objected to various "religious displays"—including angel figurines on a ledge in his supervisor’s cubicle, posters that were displayed around St. Patrick’s Day, Thanksgiving and Christmas, a Christmas tree and menorah that were displayed in December in the Bursar’s Office and at an office party, and a Time Magazine cover featuring the Pope that was left in obvious view of the office printer. Menes' religious discrimination claim alleged that another employee "was permitted to leave work to attend religious functions without loss of pay … while Plaintiff was reprimanded for leaving the office during work hours."

More Tax Twists To ADF's "Pulpit Initiative"

Yesterday’s New York Times and a posting by Melissa Rogers point out another legal twist in tomorrow’s Pulpit Initiative sponsored by the Alliance Defense Fund to challenge the IRS rules on political activity by churches.. (See prior posting.) Earlier this month, three former IRS officials who are now lawyers in private practice wrote to the IRS Office of Professional Responsibility (full text of letter) asking it to investigate whether ADF has violated ethical rules binding on lawyers who practice before the IRS. Treasury Department Circular No. 230 provides that lawyers may not suggest to a prospective client that they violate any federal tax law. (Sec. 10.51(7)). ADF has offered to represent churches taking part in the Pulpit Initiative. ADF has also added a disclaimer to its website to prevent its advice being considered a "marketed opinion" as defined in Circular 230. A lawyer can issue a “marketed opinion” only if the lawyer concludes that it is more likely than not that the taxpayer will prevail using the tax advice included in the opinion. (Sec. 10.35).

Army Is Sued for Forcing Christian Religious Beliefs On Personnel

Yesterday the Military Religious Freedom Foundation filed suit in Kansas federal district court, along with Army Specialist Dustin Chalker, alleging that the Army improperly requires military personnel to attend official functions and formations that include sectarian Christian prayer. According to the complaint in Chalker v. Gates, (D KS, filed 9/25/2008) (full text), Chalker is an atheist and is stationed at Fort Riley, Kansas. The complaint alleges a pattern of unconstitutional advancement of religion by the Defense Department and the U.S. Army that violates the Establishment Clause and effectively imposes a religious test as a qualification for Chalker to perform his military duties.

The Hays (KS) Daily News reports on the filing of the lawsuit. A posting at God and Country blog points out that this lawsuit is similar to one filed in 2007 by MMRF on behalf of Specialist Jeremy Hall, except the current lawsuit alleges that Chalker, sought permission not to attend the events through "his chain of command and the equal opportunity process," which did not yield "satisfactory results." In a motion to dismiss filed in the Hall case, the Defense Department argued that Hall failed to use existing internal procedures to complain about his treatment. (See prior posting.) [Thanks to Scott Mange for the lead.]

Sunday's Pulpit Initiative Will Challenge IRS Limits On Non-Profits

This Sunday is Alliance Defense Fund's "Pulpit Initiative". ADF has encouraged pastors to use the day to challenge Internal Revenue Service restrictions on churches (and other non-profits) that preclude them from endorsing or opposing political candidates. Today's Toledo Blade reports on ADF's plans. (I am among those interviewed for the article, and some of my comments on the reasons for the IRS limits are quoted.) An ADF White Paper outlines its arguments against the constitutionality of the IRS provisions, and an FAQ document describes the Initiative as "a strategic litigation plan". ADF says that participating pastors:

will deliver to their congregations sermons of their own that apply Scripture to the subject of candidates for government office. The sermons are intended to restore a pastor’s right to speak freely from his pulpit without fearing censorship or punishment by the government. By standing together and speaking with one voice, it is our hope to recapture the rightful place of pastors and churches in American life.

Some 33 pastors from 22 states will participate according to the Los Angeles Times. Participants will include Rev. Gus Booth of Warroad Community Church in Minnesota and Rev. Wiley S. Drake of First Southern Baptist Church of Buena Park, California. [CORRECTION: ADF has informed me that Drake will not be one of the participants in the Pulpit Initiative.] Americans United issued a release on Wednesday criticizing the Pulpit Initiative, calling it "a Religious Right-led effort to politicize America’s pulpits." The Interfaith Alliance has posted a video titled Pulpit Politics: The Race for Pastor-in-Chief pointing out dangers of endorsements from the pulpit. (See prior related posting.) [Updated]

9th Circuit Says Genocide Requires Specific Intent

In Abagninin v. AMVAC Chemical Corp., (9th Cir., Sept. 24, 2008), the U.S. 9th Circuit Court of Appeals dismissed a suit under the Alien Tort Statute (ATS) that had been brought by workers in the Ivory Coast against manufacturers, distributors, and users of the pesticide DBCP. ATS allows suits in U.S. courts by an alien for a tort committed in violation of the law of nations or of a treaty of the United States. The suit charged that defendants committed genocide and crimes against humanity, claiming that they knew the pesticide would cause male sterility and low sperm counts. The court held that genocide is defined under customary international law as a specific intent crime. Relying on the definition of genocide in the Convention on the Prevention and Punishment of the Crime of Genocide, the court held that genocide requires a specific intent to destroy a national, ethnic, racial or religious group. Mere awareness of the likely consequences of an action is not enough. Yesterday's San Francisco Chronicle reports on the decision.

Jewish Congress Members Criticize Kosher Meat Processor

On Monday, twelve Jewish members of Congress, all Democrats, sent a letter (full text) to the owners of Agriprocessors Inc., criticizing the large kosher meat processing firm. As summarized in a press release from New York Rep. Gary Ackerman: "The letter expresses deep concern over the company’s alleged mistreatment of its workers and animals and the violation of U.S. laws and Jewish standards." The Forward reports on the letter, summarizing the allegations against the company's Postville, Iowa plant which culminated in a federal immigration raid in May. (See prior related posting.)

After Arkansas Raid, 6 Children In State Custody, Sect Leader Arrested

As previously reported, last week federal authorities, as part of a child pornography investigation, raided the southwest Arkansas compound of the Tony Alamo Christian Ministries. Since then there have been two developments. The state took six minor girls into temporary custody. (AP, 9/22).Today and Monday, three Miller County, Arkansas circuit judges will hold probable cause hearings to determine whether the state can continue to hold the girls in temporary custody. (AP, 9/25). Meanwhile yesterday Ministries leader, 74-year old Tony Alamo, was arrested by the FBI on charges of transporting a minor across state lines with the intent to engage in sexual activity. (CNN, 9/25).

En Banc Review Sought From 10th Circuit In Las Cruces Decision

Plaintiffs yesterday filed a petition asking the U.S. 10th Circuit Court of Appeals to grant en banc review of a 3-judge panel decision in Weinbaum v. City of Las Cruces. (See prior posting.) The panel dismissed two cases challenging on Establishment Clause grounds the display of Latin crosses as a symbol of Las Cruces, New Mexico-- one involving the city's symbol and the second involving use of crosses as a logo by the Las Cruces school district. Yesterday's Las Cruces Sun-News reports that the review petition relates only to the suit against the city. Plaintiff Paul Weinbaum said that the arguments in both cases are similar.

Britain's 2012 Olympic Bathrooms Will Accommodate Muslim Religious Rules

Britain's Olympic Delivery Authority, planning for hosting of the 2012 Olympics, wants to be welcoming to people of all cultures, faiths, ages and abilities. It is taking several steps to accommodate Muslim religious practices. According to yesterday's London Telegraph, Islamic law prohibits Muslims from facing Mecca-- the direction of prayer-- when they use the toilet. Therefore, a percentage of the general toilets available to attendees will not face Mecca. In a second move, special washing facilities will be constructed next to Muslim prayer rooms. The Telegraph says that the Olympics are not the only venue in which Britain has taken account of the direction that toilets face. Last year, the government turned the toilets in Brixton prison in London after inmates complained of having to sit sideways on them in order to comply with restrictions of religious law.

Britain Plans To End Exclusion of Catholics From Monarchy

London's Guardian and AFP today report that Britain's Labour government has drawn up proposals to amend the country's 300-year ban on Catholics serving as monarch. The change, planned to be introduced after the next election, would be part of other constitutional amendments, including modifications to provisions that now favor male heirs in succession to the throne. According to the Guardian: "The 1688 Bill of Rights , the Act of Settlement in 1701 and Act of Union in 1707 - reinforced by the provisions of the Coronation Oath Act 1688 - effectively excluded Catholics or their spouses from the succession and provided for the Protestant succession.... The law also requires the monarch on accession to make before parliament a declaration rejecting Catholicism." (See prior related posting.) The changes would require consent of all the Commonwealth nations since Britain's monarch is also formally their head of state. Many experts say the changes would also lead to disestablishment of the Church of England as the country's official religious body.

Delaware Clergy Sex Abuse Case Settled

Yesterday's Chicago Tribune reported that a Navy doctor has settled a Delaware state lawsuit against the Archmere Academy and the Norbertine religious order. He received an undisclosed amount of money plus public apologies by various defendants. The suit grew out of the months of sexual abuse plaintiff as a child had suffered at the hands of Norbertine Catholic priest Edward J.Smith who was a teacher and campus minister at Archmere. The settlement came after plaintiff Cmdr. Kenneth Whitwell convinced Delaware courts of the constitutionality of the state's Child Victim Act that created a two-year window for formerly time-barred child sex abuse suits to be filed. (See prior posting.) In other litigation growing out of the abuse, Whitwell has already obtained over $41 million in damages.

Native American Tribe Wins Injunction Under RFRA Protecting Medicine Bluffs

In Comanche Nation v. United States, (WD OK, Sept. 23, 2008), an Oklahoma federal district court granted a preliminary injunction against construction by the federal government of a Training Support Center at Fort Sill, Oklahoma. The proposed construction was near Medicine Bluffs, a site of religious significance to members of the Comanche tribe. The court held that plaintiffs had demonstrated a substantial likelihood of success on their claim under the Religious Freedom and Restoration Act. It concluded that "the record is utterly devoid ... of facts tending to demonstrate that the construction of the TSC in its current location is the least restrictive means of furthering the compelling governmental interest." The court also concluded that plaintiffs had shown a substantial likelihood of success on their claim under the National Historic Preservation Act. Yesterday's Tulsa World reported on the decision. The preliminary injunction follows on a temporary restraining order issued last month. (See prior posting.)

Report: More Job Discrimination Against Muslims; Fewer Anti-Muslim Hate Crimes

The Council on American Islamic Relations yesterday issued a report titled Without Fear of Discrimination: The Status of Muslim Civil Rights in the United States 2008. CAIR's press release says that the report covers a record 2,652 incidents of anti-Muslim violence, discrimination and harassment in 2007. It shows an 18% increase in workplace discrimination against those already employed, and a 34% increase in discrimination against job applicants. Failure to accommodate Muslim workers' religious exercise rose by 8%.

Beyond the workplace, the report shows a 340% increase in passenger profiling. However anti-Muslim hate crimes decreased by 19%. Large decreases were also reported in incidents at schools or involving police, in due process complaints, physical violence, denial of service and verbal harassment. Nine states and the District of Columbia accounted for nearly 80% of all complaint with CAIR.

Virginia State Police Chaplains Protest Non-Denominational Prayer Mandate

Responding to a recent 4th Circuit decision on non-denominational prayers at government-sponsored events, Col. W. Steven Flaherty, Virginia's State Police superintendent, earlier this month ordered that the state police department's 17 volunteer chaplains deliver only non-denominational prayers at government sponsored events. Today's Hampton Road (VA) Pilot and the Lynchburg News & Advance report that six employees have resigned their chaplaincy positions in protest. Two state legislators, including House majority leader Morgan Griffith, have issued statements in support of the chaplains, said they would introduce legislation to reverse the departmental rulings,. they called the department's decision an attack on Christianity and a violation of troopers' constitutionally protected freedom of expression.

British Muslim Given Suspended Sentence In Teens' Self-Flogging Ceremony

As previously reported, last month a jury in Manchester, England's Crown Court convicted a devout Shia Muslim, Syed Mustafa Zaidi, of child cruelty after he encouraged two teenage boys to flog themselves with a 'zanjeer' (bladed whip) at a Matam ceremony. Now, according to BBC News, a judge has given Zaidi a suspended 26-week jail sentence, conditioned on his not repeating his offense during the next 12 months. At sentencing, Judge Robert Atherton told the defendant that no one should interpret the jury's verdict as a comment on the Ashura ceremony. Instead, he said, the law sometimes protects children from engaging in certain activities, even if they want to. He told Zaidi: "Your wrongful act was providing the means by which they were able to participate." Mosque elders had decided that no one under 16 should participate in the ceremony. A code of conduct for adults to prevent them from involving children in the ceremony has now been drawn up by the local Muslim community.

Alaska Federal Court Grants Soldier Conscientious Objector Status

In Barnes v. Geren, (D AK, Sept. 22, 2008), an Alaska federal district court held that the conscientious objection claim of Army Pfc. Michael Barnes should be granted. His claim was rooted in his nondenominational Christian faith, morals and beliefs developed through six months of daily prayer and scripture reading after he was in the Army. The court rejected the Army Conscientious Objector Review Board's findings that Barnes was not sincere in his claim. Today's International Herald Tribune reports on the decision. (See prior related posting.)

Tancredo Introduces "Jihad Prevention Act"

Last week, Colorado Congressman Tom Tancredo introduced H.R. 6975, the Jihad Prevention Act, which would deny visas to anyone who promotes the introduction of Sharia law into the U.S. The proposed law provides: "Any alien who fails to attest ... that the alien will not advocate installing a Sharia law system in the United States is inadmissible." The bill would also make advocating the installation of Sharia law in the U.S. a ground for revoking a visa or revoking naturalization. In his press release announcing the bill, Tancredo said he is reacting to recent developments in Britain where Sharia arbitration panels are now recognized. (See prior posting.) Today's Front Page Magazine reports on the bill.

Gitmo Defendant Grills Judge On His Religious Affiliation

At Guantanamo Bay in Cuba, Military Commission pre-trial proceedings are under way in murder charges against accused 9-11 plotter Khalid Sheikh Mohammed and four other defendants. According to a report in yesterday's London Mirror and today's Washington Post, defendants may question the impartiality of Military Commission judges. Mohammed asked Marine Col. Ralph Kohlmann, who is the Presiding Officer for this case, whether he was a member of any extremist or fanatic religious groups such as the ministries of Jerry Falwell or Pat Robertson, saying that such membership would show that the judge was not impartial. Kohlmann answered that he has not belonged to a church for a long time, and in the past was a member of various Lutheran and Episcopal churches. The judge refused to answer questions on whether he had ever read books by Billy Graham or Pat Buchanan. Another defendant, Ramzi Binalshibh, asked Kohlmann whether his last name is a Jewish name. Kohlmann said no.