7th Circuit Limits Taxpayer Standing In Suit Seeking Restitution From Notre Dame

The U.S. 7th Circuit Court of Appeals in Laskowski v. Spellings, (7th Cir., Oct. 14, 2008) held that federal taxpayers lack standing to sue a private recipient of a federal grant for restitution to the Treasury as a remedy in an otherwise moot Establishment Clause case. The case involved a $500,000 Congressional earmark for Notre Dame University to use to operate a teacher training program. While the suit was pending, the grant expired. This mooted the claim for an injunction against the Secretary of Education. Originally in a 2-1 decision, the 7th Circuit permitted the claim for restitution against Notre Dame to proceed. However, the U.S. Supreme Court granted certiorari and remanded the case for reconsideration in light of its Hein decision. The 7th Circuit now concludes that after Hein, "taxpayers continue to have standing to sue for injunctive relief against specific congressional appropriations alleged to violate the Establishment Clause, but that is all." [Thanks to Derek L. Gaubatz for the lead.]

Philippines House Passes Bill To Ban Religious Labels In Reporting On Criminal Suspects

A press release from the Philippines' House of Representatives reports that it has approved a proposed bill to ban newspapers, broadcast and electronic media from labelling criminal suspects (or persons convicted of crimes) as "Muslim" or "Christian", or to use any other word denoting religious, regional or ethnic affiliation in reporting on them. Violations will lead to a fine imposed on the editor-in-chief in print media, or on the news editor in broadcast or electronic mass media. Sponsors of the bill say that religious or ethnic labels create sweeping generalizations about other innocent members of the group. The bill was sponsored by the House Committee on Muslim Affairs. House Bill 100 now goes to the Philippines Senate for action.

Groups Criticize Kyrgyzstan's Proposed Religion Law

Forum 18 reported yesterday that Kyrgyzstan's Parliament last week passed without discussion the first reading of a new Religion Law. The second and final reading may be later this month. News Agency 24.kg reported yesterday that Alexander Shumilin chairman of Kyrgyzstan's Council of Churches of Evangelical Baptist Christians, has strongly criticized the proposed new law. He says that because only 5% of current religious organizations will meet the requirement that they have at least 200 adult members with permanent residence in order to register, many groups will go into hiding and this will make it more difficult for the government to control them.

The proposed law will also ban the free distribution of religious literature. Parliamentary Deputy Zainidin Kurmanov, one of the law's authors, said: "It is very unpleasant when you are on the street when someone comes up to you and forces on you their ideas on their religion." He also said that extremist literature is being distributed as religious tracts.

Policy Change On Gay Pride Parade Results In Injunction Denial For Firefighters

Last week, a San Diego (CA) Superior Court judge refused to grant an injunction sought by four Catholic firefighters who objected to being required to participate in the local Gay Pride Parade. The complaint alleged that forced participation violated the firefighters' free speech rights. Developments in the case were reported in yesterday's Gay & Lesbian Times. The court said that an injunction goes to future action, and is not a punishment for past conduct. Future problems are unlikely because the city has changed its policy so that now no firefighter who is unwilling to do so will be required to participate in the Pride parade. Earlier this month, the jury deadlocked in a civil damage action by the firefighters claiming sexual harassment when they were required to operate a fire truck in the 2007 parade. A retrial on that claim is set for January.

Virginia Break-Away Anglican Congregations Score Another Victory

The Washington Times reports that on Tuesday, a Fairfax County, Virginia, trial court judge issued yet another ruling in favor of one of the local congregations that has broken away from the Episcopal Church in order to affiliate with the newly-created more conservative Anglican District of Virginia. Judge Randy I. Bellows decided that a contested parcel of land belongs to the Truro Church in Fairfax. He ruled that a 2007 conveyance of the property to Truro Church by Christ the Redeemer Church in Centreville was valid. This means that under Virginia's "Division Statute", this property, like other property of the congregation, will belong to it, and not to the church's former parent body, the Episcopal Church.

This ruling follows another important one made on September 26 in which Judge Bellows rejected challenges by the Episcopal Church to the validity of the votes authorizing eleven conservative congregations to break away from the Episcopal Church. The court now must still decide on the ownership of a handful of additional properties, including whether a 276-year-old church once attended by George Washington belongs to the Christ Episcopal Church in Alexandria. (See prior related posting.)

Texas Atheist Group Releases Voters Guide

In a press release issued on Wednesday, the Atheist Community of Austin announced release of the ACA 2008 Voters' Guide featuring responses from 50 candidates in various elections in the state of Texas. The survey was sent to 482 candidates for federal and state offices that are on the ballot in Texas this November. According to the release: "The survey focuses on the Constitutional separation of church and state, freedom of conscience, rational decision making, science advocacy, equality, and other important issues that conventional sources often do not satisfactorily address." ACA's website has links to additional information about the survey. ACA says the survey is needed because: "Non-religious/secular individuals are estimated to represent more than 14% of the population of the United States; yet candidates often ignore or openly dismiss the interests and concerns of this group in order to court religious voters--a political move that fails to address the diversity of opinion held by religious individuals who aren't a part of the more vocal religious demographics."

Court Dismisses Church's Challenge To Closure Ordered By Synod

In Evangelical Lutheran Church of the Redeemer v. Southeastern Pennsylvania Synod of the Evangelical Lutheran Church In America, (Phil. Ct. Com Pl., Sept. 22, 2008), a Philadelphia County, Pennsylvania trial court dismissed for lack of subject matter jurisdiction a church's challenge to action taken by its parent body to close down the congregation. Because of diminished attendance and financial problems in the congregation, the Synod invoked provisions of its constitution to take control of the church's property, allegedly worth $1.5 million, prevented the congregation from hiring a new pastor, and closed the congregation. The court held that it could not adjudicate the church's breach of contract claim against the Synod. This was not a dispute that can be decided using neutral principles of civil law. Instead it is "intimately linked to defendant's internal criteria." The court concluded that the free exercise clause requires it to defer to decisions made by the church hierarchy in this type of challenge to matters of internal governance.

Texas Appoints 3 Anti-Evolutionists To Curriculum Review Panel

Yesterday's Dallas News reports that conservatives on the Texas State Board of Education have appointed three supporters of teaching intelligent design or creationism to a six-member review committee for science curriculum standards in Texas schools. Two of the appointees, Stephen Meyer and Ralph Seelke, have authored the textbook Explore Evolution, distributed by the Discovery Institute. The third evolution critic is Baylor University Professor Charles Garner. The three other appointees to the review committee are professors at Texas universities. Texas Freedom Network yesterday issued a release quoting TFN president Kathy Miller who said in part:

It's simply stunning that any state board members would even consider appointing authors of an anti-evolution textbook to a panel of scientists.... Texas universities boast some of the leading scientists in the world.... It’s appalling that some state board members turned to out-of-state ideologues to decide whether Texas kids get a 21st-century science education.

[Thanks to Scott Mange for the lead.]

Consent Decrees In Two Christian Free Speech Cases

The Alliance Defense Fund this week announced settlements in two pending cases. In Swagler v. Harford County, Maryland, (D MD, Oct. 10, 2008), the court issued a consent order in lieu of a preliminary injunction. In it the county agrees not to enforce Harford County Code § 219 in a manner that prohibits the display of hand-held signs in a traditional public forum without a permit. In its release on the case, ADF said that the case stems from the arrest, and later dropping of charges, against 18 participants in Defend Life's "Face the Truth Pro-life Tour." Apparently the decree applies while the case is being further litigated on the merits.

ADF has also announced a consent decree in a second case, Foht v. Village of Kewaskum, (ED WI, Oct. 14, 2008). Plaintiff, who was placing Christian literature on the door handles of residences was threatened with fines under a village ordinance banning various kinds of literature distribution. Subsequently the Village repealed the ordinance. In the consent order, the court found that the prior ordinance was facially unconstitutional, but dismissed the lawsuit without prejudice. The Village agreed to pay nominal damages and plaintiff''s attorneys fees.

Saudi Resigns From Municipal Council In Protst Over Eid Festivities

In Saudi Arabia, Abdullah Al-Suwailim, a member of the Riyadh Municipal Council, has resigned in protest over violations of Islamic law that occurred during the city's Eid Al-Fitr celebration this year. Today's Arab News reports that instead of concrete barriers separating families from single men, the two sections were merely separated by 30 meters of open space. Also non-Muslims entertained at the event and live music was played in one of the theatrical productions. Ibrahim Al-Khudairi, a judge in the Court of Appeals, said that "nothing in the content of (Riyadh's) Eid program is against Islamic teachings." The Eid festival is seen by the government as a way of promoting tourism.

Fair Use Claim Filed In Dispute Over Anti-Muslim Remarks on YouTube

According to the Los Angeles Metropolitan News-Enterprise, last Friday documentary film maker Robert Greenwald's company, Brave New Films (BNF), filed a federal lawsuit against talk radio host Michael Savage and Talk Radio Network (TRN) that syndicates Savage's show. Last January, BNF uploaded to its channel on YouTube a video titled "Michael Savage Hates Muslims." The video criticized Savage, and included one minute of audio excerpts from a Savage broadcast in which Savage denigrates Muslims. TRN sent a "takedown notice" to YouTube, demanding removal of the video, claiming it infringed its copyright. This lawsuit, filed in response in the Northern District of California, seeks a declaration that the video made fair use of the copyrighted material. It also seeks damages for misrepresentations TRN made in the takedown notice. It cites as a basis for its claim an earlier fair use ruling in a lawsuit by Savage against CAIR for using audio clips from the same broadcast.

Army Base Jewish Lay Leader Criticized For Reaction To Anti-Semitic Incident

As previously reported, at Ft. Benning, Georgia, Army Private Michael Handman was subjected to anti-Semitic taunts and forced by his drill sergeants to remove his kippah (head covering). Subsequently Handman was assaulted by a fellow-soldier, though investigators concluded that this attack was not motivated by anti-Semitism. (See prior postings 1, 2.) On Monday, The Public Record reported that now some members of the Jewish community are calling for removal of retired Navy Captain Neil Block, the Jewish Lay Leader and advocate for Jewish soldiers at Fort Benning because of his remarks about the incidents. Block said of Handman: "When he told me that he was going to wear a keepah ... I said God bless you, but be prepared, there’s a consequence to it and you’re going to be challenged." Block went on:

He has a drill sergeant who has never seen a keepah in his life and treated him less than mommy and daddy would and made some derogatory comments about his faith. This whole thing is an issue of overreaction. Should his drill sergeants have known better? Yeah. But they didn’t. I was at a party where people talking about Jewing somebody down. It goes on. Does it make it right? No. But it’s basic training. You can’t control 100 or so soldiers. I mean everybody uses the “n” word now and then” to refer to African Americans....

Any young Jew who uses his minority status to play the system is villainous. There’s that element that I am being discriminated against.

Block also interviewed the drill sergeants who were reprimanded for referring to Handman as "Juden," "kike" and "fucking Jew." Block said: "these are two absolutely contrite individuals who did not understand what they were saying. One of the drill sergeants spent time in Germany. Juden is the German word for Jew. To some Jews it may have a pejorative impact. But it’s a legitimate word in German."

Indian Government Claims Ram's Bridge Not Essential To Hindu Beliefs

For some time there has been a case pending in India's Supreme Court challenging the government’s plans to dredge a shipping canal between India and Sri Lanka in order to reduce sailing time between India’s coasts by 30 hours. However, the channel goes through limestone shoals known as Adam’s Bridge or Ram's Bridge that Hindus believe were built by the God King Rama. (See prior posting.) On Monday, according to IANS, the government filed its written arguments with the court, and those arguments are controversial. The government contends that it has not been proven that the Ram Setu bridge in the Palk Strait between India and Sri Lanka is an "essential and integral part of Hindu religion." It went on to argue: "A religious belief or practice which is not an essential and integral part of the religion is not protected by Article 25 or 26 of the constitution."

Meanwhile, however, complying with an earlier suggestion by the court, the government has appointed a special committee to examine whether it would be possible to create an alternative and shorter sea route around India’s southern tip, and in that way avoid damage to the Rama Setu.

Suit Seeks To Have Ex-Gays Protected By DC Human Rights Act

The group Parents and Friends of Ex-Gays & Gays (PFOX) announced yesterday that it had filed a lawsuit in the D.C. Superior Court seeking to require the Washington D.C. Office of Human Rights to include former homosexuals as a group that is protected by the D.C. Human Rights Act. The law prohibits discrimination based on sexual orientation, sexual preference, gender identity and gender expression. PFOX claims that former homosexuals and their friends have been fired from their jobs, ridiculed, assaulted, and intimidated, and thus should be entitled to the same legal protections as gays.

Edmond Oklahoma Raises Concerns With Proposed Expenditure For Statue of Jesus

According to the AP, the Edmond Oklahoma Visual Arts Commission has approved spending $3900 in public funds to help pay for a bronze statue of Jesus to be placed downtown for Christmas. The statue, titled "Come Unto Me" (photo), will be put up in front of the Sacred Heart Catholic Gifts shop. Last year, the Arts Commission initially approved, and after public objections withdrew, a proposed expenditure of $17,500 on statue of Moses to be placed at Edmond's First Christian Church. Americans United today issued a release objecting to the proposed expenditure, and disputing the artist's argument that the sculpture "doesn't state that it is specifically Jesus. It is whatever you perceive it to be." Blog from the Capitol also covers the story.

State Senator's Suit Against God Dismissed For Lack of Service

Last year, Nebraska state senator Ernie Chambers filed a lawsuit in a Douglas County, Nebraska state court naming God as defendant and seeking an injunction against God to end His causing, death destruction and terror through various natural disasters. (See prior posting.) Chambers has variously explained the action as a protest against frivolous lawsuits or an attempt to show that everyone should have access to the courts. Yesterday, according to the Associated Press, Douglas County District Court Judge Marlon Polk dismissed the case, ruling that "there can never be service effectuated on the named defendant this action." Chambers says he disagrees with the decision. He argues: "The court itself acknowledges the existence of God. A consequence of that acknowledgment is a recognition of God's omniscience. Since God knows everything, God has notice of this lawsuit." Chambers has not decided yet whether to appeal.

Cert. Filed In Coach's Attempt to Pray With His Team

According to My Central Jersey.com, on Monday, a petition for certiorari was filed with the U.S. Supreme Court in Borden v. School District of the Township of East Brusnwick. In the case, the 3rd Circuit last April upheld a school district rule that prevented high school football coach Marcus Borden from joining with his team in its pre-meal grace and taking a knee during a prayer in the locker-room by team members. The court found that given the specific history of Borden's activities, his joining with the team could reasonably be interpreted as an endorsement of religion by him. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

UPDATE: Here is the Petition for Cert and the amicus brief in support of the petition filed by the American Football Coaches Association.

Tax Lien Sale For Synagogue's Back Taxes Will Be Tomorrow On Sukkot

In Ocean Township, New Jersey tomorrow-- which is the Jewish holiday of Sukkot-- a tax sale will be held at town hall to auction off liens on properties that are delinquent in their taxes. Included will be a tax lien on the the Synagogue of Oakhurst Community Center. APP.com reported the complicated story last week. The Orthodox synagogue owes the township over $36,000 in taxes. They were assessed because, for years, the synagogue, operating in an area not zoned for houses of worship, pretended to be a child care center. Since 2003 when the improper use was discovered by authorities, numerous zoning complaints have been issued against the synagogue. Currently the synagogue is in litigation over whether it will be granted a property tax exemption.

British Ministry Report Promotes Faith-Based Partnerships In Corrections

Today Britain's Ministry of Justice released a report titled Working With the Third Sector to Reduce Reoffending: Securing Effective Partnerships 2008-2011. Here is an excerpt:

3.3 Faith-based organisations make up a substantial part of the third sector, with a long history of working with offenders in prisons, through the gate, and in the community. This includes work that is non-faith-based; access to spiritual care and support for offenders who are of faith; and support for offenders returning to communities where faith is a strong part of the fabric of that community and where faith organisations can help build trust and acceptance and support effective reintegration.

Faith-based organisations can offer an invaluable link into communities, including to those who are not part of other networks or accessing mainstream services and support. Because religion occupies a central place in the culture and identity of many minority ethnic and refugee communities, faith-based organisations can be the principal gateway and source of support to these communities....

In response to the report, the British Humanist Association issued a statement expressing "extreme disappointment at the Government’s plans to further increase and promote 'faith' in the management of offenders, both in prisons and in the community."

Forced Conversions To Hinduism Reported In India's Orissa State

Today's New York Times carries a front-page story on the continuing religious tension and violence in the Kandhamal district of India's Orissa state. Old tribal rivalries underlie the violence. The Kandhas, who are largely Hindu, accuse the Panas, who have embraced Christianity, of cheating to obtain quotas for government jobs, while the Panas say the Kandhas are just resentful of the Panas' success at educating themselves. Violence was triggered by the August killing of charismatic Hindu preacher, Swami Laxmanananda Saraswati. The killers were probably Maoist guerrillas, but radical Hindus blame Christians. Since then, a number of Christians have been forced to embrace Hinduism, under threat of expulsion or death. Subash Chauhan, a leader of the radical Hindu group, Bajrang Dal, accused Christian missionaries of using promises of education and social services to get villagers to convert. He said it was unrealistic to expect the Kandhas to tolerate the Panas living among them as followers of Jesus. (See prior related posting.)

Suit Claims College Students Disciplined for Praying

The Pacific Justice Institute announced last week that it had filed a federal lawsuit against the College of Alameda, part of the California state system. The lawsuit claims that two students, Kandy Kyriacou and Ojoma Omaga, received disciplinary letters threatening to suspend them for "disruptive or insulting behavior, willful disobedience . . . persistent abuse of college employees." The suit claims that the disciplinary action stems from an incident last December in which Kyriacou visited an instructor in her office to give her a Christmas present, and found that the instructor was feeling ill. Kyriacou offered to pray for her. The instructor bowed her head, and the student began to pray when another faculty member, Derek Piazza, came in and told her she could not pray there. Kyriacou left and joined her friend, now co-plaintiff, Omaga, followed by Piazza who repeated his warnings to Kyriacou. The lawsuit asks that the disciplinary letters be rescinded.

Opposition To Westhampton Beach NY Eruv Continues From Community

The battle over whether the Westhampton Beach (NY) Village Board should approve a synagogue's construction of an eruv (symbolic religious enclosure) around part of the village continues. (See prior posting.) The Southampton Press reports that yesterday more than 100 people attended a meeting sponsored by a group known as Jewish People Opposed to the Eruv (JPOE). Attendees were asked to sign petitions which will be submitted along with a legal brief (full text) authored by church-state expert Marci Hamilton. Prof. Hamilton was hired by another anti-eruv group, the Alliance for the Separation of Church and State in the Greater Westhampton Area. Jack Kringstein, the vice president of JPOE said that the eruv would change the community for the worse by bringing in unwelcome people. An AP story from earlier this month on the Westhampton dispute explains opponents are concerned that "Westhampton Beach — a wealthy community but one less glitzy than its better known neighbors Southampton and East Hampton — may evolve into an Orthodox enclave."

The 18-page legal brief opposing the eruv puts forth a number of arguments as to why it would violate separation of church and state limitations, despite court cases elsewhere that have approved such arrangements. In part arguments focus on the fact that under Jewish religious law, the symbolic enclosure of space needs to be accompanied by a civil government proclamation, although that could come from the governor or state attorney general instead of the village board. The brief argues that village approval of the eruv along with a proclamation would be a government act carrying out religious law. It also contends that permitting the eruv would violate the principle of neutrality, and would be endorsement of an identified religious enclave with specific geographical boundaries. [Thanks to Steven H. Sholk for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Paul Horwitz, Religion and American Politics: Three Views of the Cathedral ,(October 2, 2008).
• George P. Smith, Biotechnology, Religion, Modern Science and Law: Shaping or Testing the New Modernity? The Curse of Itching Ears, (CUA Columbus School of Law Legal Studies Research Paper No. 2008-30 (2006).)

From SmartCILP:

• Peace With Creation: Catholic Perspectives on Environmental Law. Keynote address by Archbishop Harry J. Flynn; welcome address by Sen. Amy Klobuchar; articles by William C. French, Keith Douglass Warner, John Copeland Nagle, Lucia A. Silecchia, John Hart, Andrew P. Morriss, Gregory R. Beabout, Jamison E. Colburn and Jerome M. Organ. 5 University of St. Thomas Law Journal 1-287 (2008).

Recent Books:

• John Garrard & Carol Garrard, Russian Orthodoxy Resurgent: Faith and Power in the New Russia, (Princeton University Press, 2008).
• Macel Falwell with Melanie Hemry, Jerry Falwell : His Life and Legacy, (Howard Books, 2008).

Texas Coroner Wants Exemption From State Religious Freedom Restoration Act

Yesterday's Houston Chronicle reported that the Harris County, Texas Medical Examiner's Office is considering asking the state legislature to enact legislation to exempt the coroner's office from Texas Religious Freedom Restoration Act. Last year, a Texas court invoked the law to bar an autopsy of an Orthodox Jewish man who committed suicide after battling depression. The medical examiner's office however, says that a judge or member of the clergy should not be able to overrule a coroner's decision that an autopsy is needed. State law calls for an autopsy in cases of murder, suicide and or where the cause of death is not known. In cases of Jewish or Muslim families, the coroner's office preserves all body parts and fluids for burial, and expedites autopsies so burial can take place quickly as required by religious law. [Thanks to Steven H. Sholk for the lead.]

Virginia School District Moves To Less Controversial Bible Curriculum

According to yesterday's Roanoke Times, the Craig County, Virginia, School Board last week voted 5-0 to drop a course called "The Bible in History and Literature" that uses the controversial curriculum developed by the National Council on Bible Curriculum in Public Schools. That curriculum has been criticized as promoting particular religious beliefs. The course will be replaced by one using a curriculum titled "The Bible and Its Influence," created by the Bible Literacy Project and which has been endorsed by experts in literature, religion and church-state law. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Court Rejects Use Permit For Hindu Temple Because of Deed Restrictions

Yesterday's Arizona Republic reports that a recent Maricopa County Superior Court decision invalidated a use permit that the Chandler City (AZ) Planning and Zoning Commission, as well as City Council, had approved for construction of a Hindu Temple. Neighbors challenging the proposed construction relied on "residential only" deed restrictions on the land owned by the non-profit Hindu group that wished to build a brightly colored worship center.

Minnesota Supreme Court Challenger Focuses On Religion As Basis of Government

The Minnesota Independent last week reported on the campaign of Tim Tingelstad for a seat on the Minnesota Supreme Court. Challenging incumbent Justice Paul Anderson, Tingelstad's website is filled with appeals to restore religion as the foundation of government. For example, the section of his website captioned Church & State says in part: "Through misinterpretation, the Constitution has been used as an instrument to remove God and his Word from our public lives.... Today's concept of 'separation of church and state' does not come from the Constitution, nor does it come from a historically accurate review of American history." [Thanks to Scott Mange for the lead.]

Christians In Iraq Flee Violence In Mosul

CNN reported yesterday that in the Iraqi city of Mosul, 900 Christian families have fled after a series of threats and 13 killings by Muslim extremists who have warned Christians to convert to Islam or face possible death. The violence follows demonstrations two weeks ago by Christians seeking greater representation on provincial councils in elections scheduled for January. In response to the violence, the Iraqi defense minister visited Mosul, police have set up security checkpoints, more troops have been deployed to the city and security patrols have been increased.

Recent Prisoner Free Exercise Cases

In Mells v. Civigenics, Inc., (5th Cir., Oct. 3, 2008), the U.S. 5th Circuit Court of Appeals dismissed as frivolous an inmate's free exercise claim, agreeing with the district court that plaintiff had failed to exhaust his administrative remedies.

In Mitchell v. Department of Corrections, 2008 U.S. Dist. LEXIS 77624 (ED WA, Oct. 3, 2008), a Washington federal district court rejected claims by plaintiff, a Nation of Islam member, that his free exercise, RLUIPA, Establishment Clause and equal protection rights were violated by prison policies. His challenges related to the unavailability of specific NOI religious services and instruction, the ban on his wearing a colored kufi, a limitation on prayer oils, and rules relating to attendance at cultural events.

In Sullivan v. Ozmint, 2008 U.S. Dist. LEXIS 77587 (D SC, Oct. 2, 2008), a South Carolina federal district court, adopting a magistrate's recommendations, rejected complaints that Muslim inmates were allowed to pray only in common areas, and not in closed areas of the prison such as the barber shop.

In Shaw v. Norman, 2008 U.S. Dist. LEXIS 77696 (ED TX, Oct. 1, 2008), a Texas federal magistrate judge rejected dismissal of an inmate's 1st Amendment and RLUIPA claims, growing out of confiscation of his Koran, prayer rug and beads. Defendants claimed plaintiff did not have property papers for the prayer rug, the Koran had been altered with tape, and that plaintiff was improperly using the beads by wearing them around his neck.

In Johnson v. Ohio Department of Rehabilitation & Corrections, 2008 U.S. Dist. LEXIS 79483 (SD OH, Oct. 9, 2008), an Ohio federal district court permitted a Rastafarian prisoner to move ahead with his claim that subjecting him to prison grooming policies violated his 1st Amendment rights. However the court refused plaintiff's request for a temporary restraining order. (See prior related posting.)

In Muhammad v. Brumfield, 2008 U.S. Dist. LEXIS 79559 (ED CA, Oct. 6, 2008), a California federal magistrate judge ordered dismissal of a suit brought by an inmate who wished to participate in services with the Lost Found Nation of Islam. The court said plaintiff had not demonstrated any substantial burden on his religious practice.

In Wakefield v. Tilton, 2008 U.S. Dist. LEXIS 78881 (ED CA, Oct. 2, 2008), a California federal magistrate judge recommended that an inmate be permitted to proceed against one defendant with his claim that denial of a daily shower infringed his free exercise rights. The magistrate judge recommended dismissal of various other claims.

In Palermo v. White, 2008 U.S. Dist. LEXIS 80047 (D NH, Sept. 5, 2008), a New Hampshire federal magistrate judge allowed plaintiff a Wiccan, to proceed with his free exercise, RLUIPA and equal protection claims. Plaintiff alleged that as a pre-trial detainee he was denied a vegetarian diet, religious texts and religious items.

Appeal Filed In School Graduation Speech Case

An appeal to the 10th Circuit Court of Appeals has been filed in Corder v. Lewis Palmer School District No. 38. Yesterday's Colorado Springs (CO) Gazette reports on the filing in the case in which a high school valedictorian was required to apologize for including unauthorized religious material in her 30-second portion of a joint graduation speech. In July, a Colorado federal district court upheld officials' actions, finding that schools can reasonably regulate the content of school-sponsored speech. (See prior posting.) A release by Liberty Counsel, which is representing former student Erica Corder in the appeal, says that the school had no authority over Corder once she was no longer a student.

EEOC Sues Company On Behalf of Driver Fired For Not Working Sundays

Yesterday's Charlottesville (VA) Daily Progress reported that the the U.S. Equal Employment Opportunity Commission late last month filed a Title VII religious discrimination lawsuit against Cardinal Health Inc. The suit charges that the company failed to accommodate the religious needs of a driver who for religious reasons refused to work on Sundays. Employee Howard Thompson was fired from his Charlottesville-based job after three years of working for Cardinal, when he refused to work on rotating Sundays. A spokesman for Cardinal Health says the company is confident that it has complied with the law.

Developments In Two Army Religious Discrimination Matters

There have been developments in two arenas involving alleged religious discrimination in the U.S. Army. According to the AP, Attorneys for Pfc. Jeremy Hall filed a motion Friday in federal court in Kansas to dismiss Hall's suit against the military. The suit charged Hall was prevented from holding a meeting of atheist soldiers when he was deployed in Iraq. Hall plans to leave the Army next year, and this avoids litigation over Hall's standing to continue the suit. However a lawsuit filed in October by the Military Religious Freedom Foundation on behalf of Spc. Dustin Chalker raises related claims that soldiers were forced to attend events that featured Christian prayers. [Thanks to Scott Mange for the lead.]

Meanwhile, in an unrelated case, the AP reports that an Army trainee who physically attacked a Jewish soldier who was also in basic training at Ft. Benning will not face criminal charges. Instead he will face non-judicial punishment. The victim, Pvt. Michael Handman, and his family think the beating was motivated by anti-Semitism, since it came only a few days after Handman complained about anti-Semitic harassment by two drill sergeants. However Army investigators say the beating was not motivated by religious bigotry. (See prior related posting.)

Federal Court Rejects 1st Amendment Challenge To CA Gay Marriage Holding

In Wooten v. California, 2008 U.S. Dist. LEXIS 79078 (ED CA, Oct. 3, 2008), a California federal district court rejected claims by a pro se plaintiff that the California Supreme Court violated the federal Constitution's Free Exercise and Establishment clauses when it legalized same-sex marriage in the state. (See prior posting.) The court concluded that the state court’s ruling did not interfere with plaintiff's right to preach whatever he wishes about same –sex marriage. Nor did the decision elevate one religious view over another.

Attorney Cited For Skipping Court On Yom Kippur; Contempt Charges Then Dropped

CBS2Chicago reports that yesterday Jewish attorney Moria Bernstein faced a contempt citation issued by County Judge Veronica Mathein. Bernsten told the judge she could not appear at an emergency hearing on a divorce property settlement scheduled Thursday because Bernstein was observing Yom Kippur. After a contentious arguments on whether the Thursday hearing was in fact an emergency, Judge Mathein decided to vacate the contempt citation and arrest order that she had previously issued.

Class Has Preliminary Success In Suit On Religious Worker Visa Procedures

Ruiz-Diaz v. United States, 2008 U.S. Dist. LEXIS 79217 (WD WA, Aug. 21, 2008), is a class action brought on behalf of certain foreigners in the United States who are seeking Religious Worker visas. It challenges a government regulation (8 CFR 245.2) that precludes those individuals from filing for Adjustment of Status before their Religious Worker application is adjudicated. The complaint alleges that this discriminates against certain classes of immigrants based on their religion, violates their free exercise, equal protection and due process rights and their rights under the Religious Freedom Restoration Act. Concluding that plaintiffs have "a fair chance of success on the merits", the court ordered that they not be treated as unlawfully present in the country, or unlawfully employed, while the litigation is pending, thereby preventing their detention or deportation for being out of status.

6th Circuit Holds Administrative Finality Needed Before Suing Under RLUIPA

In Grace Community Church v. Lenox Township, (6th Cir., Oct. 10, 2008), the U.S. 6th Circuit Court of Appeals held that before a property owner may file suit under RLUIPA to challenge a zoning decision, the property owner must have obtained a final, definitive position from zoning authorities. Here the court dismissed a challenge to a special use permit revocation by the Lenox Township, Michigan Planning Commission, finding that Grace Community Church filed suit before it attempted to explain or rebut evidence presented against it and without appealing the revocation to the Zoning Board of Appeals. The court also concluded that the same ripeness objections applied to the Church's equal protection claim." (See prior related posting.) [Thanks to Brian D. Wassom for the lead.]

Court Upholds Divorce Decree Limit On Promoting Different Faith To Children

When Joel and Lisa Rownak divorced in 2005, Joel was awarded custody of the couple's minor children. The divorce decree contained a provision, originally proposed by Joel and agreed to by Lisa, that "the minor children be raised in the Protestant faith." The decree went on to enjoin both parents "from promoting another religious belief system/faith to the minor children unless both parties should consent." In Rownak v. Rownak, (AR Ct. App., Oct. 8, 2008), an Arkansas appellate court upheld a contempt finding against Joel for violating this provision by promoting the Latter Day Saints faith to his children.

In upholding the trial court's finding, the court of appeals said that the divorce decree "has for its basis a valid contract between the parties and does not violate appellant’s constitutional rights." Apparently the trial court went on to change custody of the children from Joel to Lisa because of changed circumstances, which included Joel's changing his church membership from southern Baptist to LDS. However, for reasons that are not explained, Joel did not appeal this portion of the trial court's decree. As part of its findings in the contempt proceeding, the trial court concluded that the LDS church is not a Protestant faith. Yesterday's Springdale (AR) Morning News reported on the decision. [Thanks to Spencer Macdonald for the lead.]

Suit Challenges Freezing of Assets of Muslim Charity

Yesterday, the ACLU of Ohio announced it has filed suit in an Ohio federal district court on behalf of a Muslim charity, KindHearts for Charitable Humanitarian Development, Inc. The charity was founded in 2002 (after the government shut down a number of Muslim charities) with the purpose of providing humanitarian aid in the U.S. and abroad in compliance with U.S. law. However, in February 2006 the Treasury Department's Office of Foreign Assets Control summarily froze the charity's assets "pending investigation" of whether it should be classified as a "Specially Designated Global Terrorist" organization. The freeze is still in effect.

The lawsuit (full text of complaint) challenges action taken by OFAC, arguing that the authority given by the USA PATRIOT Act (50 USC 1701(a)(1)(B)) to freeze assets pending investigation violates the First, Fourth and Fifth Amendments. The complaint alleges that the statute is unconstitutionally vague, and that it "sets forth no substantive criteria for when such a freeze pending investigation is permitted, requires no notice or opportunity to respond, and sets no time limit on the freeze." (See prior related posting.)

Two Decsions In France On Rights of Muslim Women To Wear Religious Garb

USA Today reported yesterday on two decisions in France balancing French secularism with the right of Muslim women to wear religious garb. The French anti-discrimination agency, HALDE, ruled on Sept. 15 that women wearing the burqa and niqab-- full body and face covering-- could be excluded from state-sponsored French language classes for immigrants. HALDE called the burqa a symbol of "female submission that goes beyond its religious meaning." The head of HALDE said that language teachers need to see their students' faces when offering phonetic instruction. Meanwhile, on Wednesday, an appellate court in the city of Nancy affirmed a decision fining the owner of a bed and breakfast for refusing a room to two women wearing Muslim headscarves.

Cert Denied In Parents' Complaints About School Books

Last Monday, the U.S. Supreme Court denied certiorari in Parker v. Hurley (No. 07-1368). (Order List.) In the case, the 1st Circuit had rejected free exercise and parental privacy challenges by two sets of parents who complained that they were not given an opportunity to exempt their elementary school children from exposure to books that offended their religious beliefs. The books depicted families headed by same-sex couples or dealt with love between members of the same sex. (See prior posting.) AP reported yesterday on the cert denial. Numerous other denials of cert were also ordered Monday. (See prior posting.)

Major Law Firm Sued for Religious Discrimination In Firing of Associate

American Lawyer reported Monday on a religious discrimination lawsuit filed in New York state court against the 1000-lawyer Dechert law firm. Former associate Marc Lubin says that one of the reasons he was fired was the fact that he was an Orthodox Jew. The partner who fired Lubin complained that he "was different", which Lubin understood to mean that his religious practices required him to eat kosher food and precluded his attendance at some events, such as the firm's Christmas party.

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.