Unusual Delay of Oral Arguments In Summum Case Requested, But Apparently Ignored

Last Monday, a letter was delivered to Chief Justice John Roberts making an unusual request in connection with the then-upcoming oral arguments in Pleasant Grove City v. Summum. At issue in the case was a request by Summum to post a 7 Aphorisms monument in a city park where a 10 Commandments monument already stands. The letter from Robert Ritter, president of the Jefferson Madison Center for Religious Liberty (full text), asked the Court to postpone the scheduled oral arguments "until such time as the Court publicly discloses ... that a literal translation of the Hebrew on the tablet that Moses is holding on the Court's South Wall Frieze is opposite of the Ten Commandments...."

At issue is a depiction in the Supreme Court building of Moses holding two tablets, with his robe and beard hiding much of the lettering on them. So, for example, the Hebrew inscription for "Thou shall not murder" is partially covered so the Hebrew word "lo" ("thou shalt not") is hidden. Ritter's letter suggests that the Court's 2005 decision in Van Orden v. Perry, upholding a 10 Commandments display on the Texas state capitol grounds, was influenced by the belief that the display in the U.S. Supreme Court was an accurate rendition of the Decalogue. In his majority opinion in Van Orden, Chief Justice Rehnquist wrote: "Since 1935, Moses has stood, holding two tablets that reveal portions of the Ten Commandments written in Hebrew, among other lawgivers in the south frieze."

The Supreme Court's docket entries in the Pleasant Grove City case do not reflect that the Ritter's letter was made part of the formal file in the case.

Statements Offer Advice To Obama On Issues of Concern On Religious Matters

The incoming Obama administration is receiving advice from numerous quarters on positions it should take on issues of interest to various religious groups. Chicago Cardinal Francis George, president of the United States Conference of Catholic Bishops, issued a statement (full text) welcoming the opportunity to work with Obama. The statement, which was unanimously approved by nearly 300 bishops, warned however: "The recent election was principally decided out of concern for the economy, for the loss of jobs and homes and financial security for families, here and around the world. If the election is misinterpreted ideologically as a referendum on abortion, the unity desired by President-elect Obama and all Americans at this moment of crisis will be impossible to achieve." Christianity Today reported on the statement.

Meanwhile Prof. Marci Hamilton posted an article at Findlaw titled The Five Religion-Related Issues that Should Most Concern the Future Obama Administration. Her suggested agenda for the new President includes: (1) End religious discrimination in programs that receive government funding; (2) choose an Attorney General, Solicitor General and, if necessary, Supreme Court Justices who demonstrate a healthy respect for the Establishment Clause and the separation of church and state; (3) support state measures to prevent and prosecute child sex abuse, even when it occurs within religious communities; (4) offer federal resources to investigate the abuses -- including child abuse -- that typically arise from polygamy.; (5) as part of the government's aid to homeowners, revoke laws that unfairly privilege religious groups in local zoning conflicts.

Ithaca Sued By Evangelist Over Enforcement of Noise Ordinance

Alliance Defense Fund announced yesterday that it had filed a federal lawsuit against the city of Ithaca, New York on behalf of traveling Christian evangelist James Deferio. The complaint (full text) alleges that Deferio's free speech and due process rights were violated when police attempted to enforce against his loud preaching a city ordinance banning noise that can be heard more than 25 feet away. In 2006, a federal court judge had enjoined the city from enforcing this noise ordinance in a suit brought by another evangelist.

Brazil's President Signs Agreement With Vatican

In the Vatican yesterday, Brazil's President Luiz Inacio Lula da Silva signed an agreement with the Vatican on the juridical status of the Catholic Church in Brazil. CNS reports that the Vatican will not publish the full text of the agreement until it is ratified by Brazil's Parliament. In general, however, the agreement recognizes the legal status of the Church, its educational degrees and its teaching of religion in the public schools. The agreement also recognizes marriages performed by the Church and assures access of Catholic chaplains to military bases, prisons and hospitals. An innovation in this agreement is its assurance that "other religious confessions" as well as the Catholic Church will be able to teach their tenets in Brazil's schools.

Study Released On State Anti-Discrimination Laws and Same-Sex Marriage

Earlier this week, the Becket Fund announced the release of a study titled Same-Sex Marriage and State Anti-Discrimination Laws. The Executive Summary says in part:

The survey revealed that over 350 separate state anti-discrimination provisions would likely be triggered by recognition of same-sex marriage.... Based on this data, we conclude that if same-sex marriage is recognized by courts or legislatures, people and institutions who have conscientious objections to facilitating same-sex marriage will likely be sued under existing anti-discrimination laws—laws never intended for that purpose. Lawsuits will likely arise when religious people or religious organizations choose, based on their sincerely held religious beliefs, not to hire individuals in same-sex marriages, refuse to extend spousal benefits to same-sex spouses, refuse to make their property or services available for same-sex marriage ceremonies or other events affirming same-sex marriage, or refuse to provide otherwise available housing to same-sex couples.

The study recommended that states "ensure that any recognition of same-sex marriage is preceded by robust exemptions to anti-discrimination rules." Along with the report, the Becket Fund published a useful chart on existing religious exemptions to anti-discrimination laws, by state.

Islamist Insurgents Take Somalian Seaport

Islamist insurgents have expanded the area they control in Somalia. Today's New York Times reports that Islamist guerrillas took over Merka, and important seaport 60 miles south of Mogadishu. The insurgents met no resistance. The Islamists are part of a group called the Shabab (background) that has been designated as a terrorist group by the U.S. State Department. Many Somalis, seeking law and order, welcome the takeover. The group has imposed strict Islamic law in some areas it controls.

Court Refuses To Dismiss Most Claims Against Archdiocese In Abuse Case

In Noll v. Hartford Roman Catholic Diocesan Corp., 2008 Conn. Super. LEXIS 2661 (CT Super, Oct. 20, 2008), a Connecticut trial court refused to dismiss claims that the Hartford Catholic archdiocese was negligent in failing adequately to supervise, evaluate, and train a priest who abused plaintiff and failed to investigate reports of the priest's wrongful behavior. The court, analyzing prior case law, held that "the bulk of the plaintiff's claims of negligent and reckless institutional failure to appropriately deal with child sexual abuse will not inexorably entangle the court in a doctrinal dispute." However the court did strike from the complaint portions of two counts that specifically refer to religion-based obligations.

Group Wants New Military Rules Protecting Nonbelievers

Stars and Stripes reported yesterday that the Secular Coalition for America is asking the incoming Obama administration to issue new rules against proselytizing in the military. It also wants more training for chaplains on how to deal with non-religious troops. At a news conference on Monday, the group called for new rules that would eliminate public prayer from any event where troop attendance is mandatory and prohibit the Defense Department endorsing any specific religion or religion in general. Around 20% of service members say they have no particular religious affiliation.

Suit Challenges Washington State Limits On Special Ed In Religious Schools

In Washington state, three families represented by the Institute for Justice have filed suit against the state's Office of Superintendent of Public Instruction challenging regulations that require religious school students to travel off premises to obtain special education services. The federal Individuals with Disabilities Education Act (20 USC 1412) requires states to make these services available to children in private a well as public schools. Unlike many other states, Washington will not offer therapeutic services on site at religious schools (Wash. Admin. Code 392-172A-04075), relying on the state Constitution's ban on state funding for any religious establishment (Art. I, Sec. 11)and its requirement that no school receiving state aid may be under sectarian control (Art. IX, Sec. 4). The complaint in DeBoom v. Bergeson, (WD WA, filed 11/12/2008), alleges that the Washington regulations violate the Free Exercise, Establishment, Equal Protection and Due Process clauses of the federal Constitution. Yesterday's Seattle Times reports on the lawsuit. the Institute of Justice website provides additional background material.

Humanists Run "Why Believe In God?" Ad In Time For Christmas

The American Humanist Association is apparently fueling a new round in the debate over public displays at Christmas time. CBN News reported yesterday that the AHA will spend $40,000 to place ads on the outside and inside of buses in Washington, D.C. Space is being purchased through December. The ads read: "Why believe in a god? Just be good for goodness' sake." (Photo of ads.) An AHA spokesman explained: "Our reason for doing it during the holidays is there are an awful lot of agnostics, atheists, and other types of non-theists who feel a little alone during the holidays...." An AHA press release last Tuesday says that similar ads are running in the New York Times and Washington Post.

Federal Court Will Not Stop Utah Hearing On Sale of FLDS Land

A Utah federal district court judge yesterday said he would not bar a Friday hearing in a Utah state court on whether to approve sale of Berry Knoll Farm by the FLDS United Effort Plan Trust. (See prior posting.) However Judge Dee Benson asked FLDS attorneys to report on Friday's hearing. The court will then decide-- before the sale closes--whether to hold a further hearing on FLDS claims that its free exercise rights are being violated by Utah's reformation of the terms of the UEP Trust and its takeover of administration of trust property. Yesterday, the Salt Lake Tribune and KSL-TV News reported on the federal judge's ruling.

UPDATE: On Friday, Utah state court Judge Denise Lindberg postponed the scheduled hearing on the sale of Berry Knoll Farm so that the parties could work out "a global resolution" of pending litigation and a plan for its future management. The postponement came at the request of the Utah Attorney General's office and after a meeting in chambers between the judge and attorneys for both parties. Saturday's Salt Lake Tribune reported that 2500 members of the FLDS Church showed up at Friday's hearing to show their disapproval of the proposed land sale.

Council of Europe Gives Guidance on Religious Symbols and Hate Speech

The Council of Europe announced yesterday that it is publishing Manuals to offer guidance on two controversial issues. The Manual on the Wearing of Religious Symbols in Public Areas, authored by Prof. Malcolm Evans, points out that European Court of Human rights case law gives states broad regulatory discretion, but individuals should enjoy the fullest possible freedom of belief. The Manual on Hate Speech, authored by Anne Weber, attempts to distinguish insulting speech that is protected from unprotected hate speech. The Council has posted online in English a fact sheet on wearing religious symbols in public (Word document) and a fact sheet on hate speech (Word document).

California Catholic Bishops Defend Passage of Proposition 8

The Executive Committee of the California Catholic Conference yesterday issued statement defending its support of California's Proposition 8 banning same-sex marriage. The ballot measure passed last Tuesday, and its passage has generated continued controversy. The statement said in part:

The radical change in the definition of marriage to include same-sex partners discounts both history and biology and ignores how deeply marriage—as the union of a man and a woman—is embedded in our culture, language, and laws and how foundational it is for the well-being of children and the flourishing of society. To change the definition of marriage to include any two adults diminishes the institution to mean only a legal partnership.

Under present law domestic partners continue to have the rights and benefits of married couples in the State of California. It is our conviction that it is not necessary to change the definition of marriage to protect those rights and benefits.

Denmark Proposing Ban On Judges Wearing Headscarves In Court

Denmark's Justice Minister Brian Mikkelsen says he is about to introduce legislation that would prohibit Muslim women judges from wearing headscarves in court. Politiken.dk yesterday reported on the proposed legislation that would reverse a ruling handed down last year by Denmark's independent Judicial Board. A Justice Ministry news release explains: "during court hearings, judges must not, through behaviour or clothing, express religious or political affiliations or attitudes towards religious or political issues." (See prior related posting.)

"Seven Aphorisms" Case Argued In Supreme Court [UPDATED]

The Supreme Court this morning heard oral arguments in Pleasant Grove City, UT v. Summum (Docket No. 07-665), a case in which the 10th Circuit Court of Appeals held that members of the Summum faith are entitled to erect a "Seven Aphorisms" monument in a city park in which a 10 Commandments monument donated by the Fraternal Order of Eagles is already displayed. (See prior posting.) Links to all the merit and amicus briefs filed in the case are available on Scotus Wiki. The parties in their briefs focus on whether the existing park monuments are government speech or private speech, and whether the Utah city park is a traditional public forum for unattended permanent displays. A release by Americans United on Monday, and an editorial in today's New York Times, reflect the view put forth in some of the amicus briefs that the Court should analyze the case under the Establishment Clause, instead of treating it as merely a speech case. An articles in yesterday's New York Times previews the case.

Jay Sekulow, Chief Counsel of the American Center for Law and Justice, argued on behalf of Pleasant Grove City. Last month, one of the venues in which he rehearsed his argument was Liberty University School of Law (Liberty Champion). The Solicitor General's Office also presented oral argument in support of Pleasant Grove City. Deputy Solicitor General Daryl Joseffer opened his argument as follows:

Of course the Government can select the content and viewpoint of monuments on the National Mall and in other public parks across the country. The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial. When the Martin Luther King Memorial is completed on the mall, it will not have to be offset by a monument to the man who shot Dr. King.

Washington attorney and law school professor Pamela Harris argued on behalf of Summum. Early in the argument, Chief Justice John Roberts asked Sekulow why the city had agreed to put up the 10 Commandments monument originally, though later Roberts also challenged Harris' arguments. The Washington Post, reporting on today's oral arguments, says: "Although the debate was spirited, it lacked some of the rancor of the last time the high court took up a dispute over the 10 Commandments."

The full transcript of oral arguments is available online.

Indian Panel Investigating Dow Chemical Construction At Holy Hindu Site

Members of the Warkari Hindu sect believe that land near the town of Chakan in the Maharashtra state in India is sacred because it is the land of a 17th century sage, Sant Tukaram. Today's Business Standard reports that last month, members of the sect burned down a Dow Chemical research and development facility being constructed there because they feared it would pollute the sacred area. In response, Maharashtra's Chief Minister, Vilasrao Deshmukh, put a hold on Dow's construction activity and appointed a four-person committee to look into the complaints. The committee, chaired by retired Supreme Court judge S. P. Kurdukar was to submit a report this week. However now the environment ministry says that Justice Kurdukar has resigned after discovering that a close relative previously worked as legal counsel for Dow.

U.N. Session on Religious Tolerance Opens Today

A two-day session of the United Nations General Assembly to discuss religious tolerance and inter-religious cooperation begins today, with over a dozen world leaders in attendance. Most of them are in the United States also to attend a G-20 Financial Summit in Washington beginning Friday. The U.N. session, titled "Culture of Peace" was initiated by Saudi Arabia's King Abdullah who will open the session. He will be followed by Israel's president Shimon Peres, as well as Lebanese and Palestinian leaders. U.S. President George Bush will speak on Thursday. Abdullah and Peres were invited to dinner last night by UN Secretary-General Ban Ki-Moon. Reports on the U.N. meeting appeared yesterday in the International Herald Tribune, Jerusalem Post, and Abu Dhabi's The National. The meeting is seen as emphasizing the importance that world leaders place on resolving religious disputes without resort violence. Human rights activists however criticize King Abdullah for lack of religious freedom in Saudi Arabia.

Israeli Police Break Up Fight Between Monks In Church of Holy Sepulcher

The Jerusalem Post reported that Israeli police entered the Church of the Holy Sepulcher last Sunday and arrested two monks after a fight broke out between them at the site of Jesus' crucifixion, burial and resurrection. The dispute between Armenian and Greek Orthodox monks involved a Greek Orthodox attempt to place a monk inside what is believed to be the tomb of Jesus. The incident occurred during the annual Armenian procession commemorating the 4th-century discovery of the cross believed to have been used for Jesus' crucifixion. Total Catholic reported yesterday that a Franciscan official said the altercation resulted from confusion over "Status Quo Agreements" that regulate the way that six Christian groups divide control over the Church of the Holy Sepulcher. [Thanks to Religion and State in Israel for the lead.]

Court Says County Violated RLUIPA, Equal Protection In Denying Church Applications

In Reaching Hearts International, Inc. v. Prince George's County, (D MD, Nov. 4, 2008), a Maryland federal district court upheld a jury verdict in favor of a Seventh Day Adventist Church that, because of various regulations and administrative actions, was prevented from constructing a church and school on land it owned. The court said the church found itself engaged in "a fruitless three-year-long shadowboxing match that was doomed from the start."

The jury, in special verdicts, found that the county's actions were motivated, at least in part, by religious discrimination in violation of the Equal Protection Clause, and that those actions imposed a "substantial burden" on plaintiff's rights in violation of RLUIPA. Accepting those findings, the court concluded that the county failed to demonstrate a compelling interest for its actions and that its actions were not the least restrictive means that could be used. The court confirmed the jury's $3.7 million damage award and granted injunctive relief as well, in part ordering the county to consider future applications by the church "without any discriminatory animus." Yesterday's Maryland Daily Record reported on the decision.

Liberty Counsel Renews "Friend or Foe Christmas Campaign"

Liberty Counsel, a legal advocacy group, announced yesterday that it is launching its sixth annual "Friend or Foe Christmas Campaign." The campaign includes distribution of legal memoranda defending public references to Christmas and its celebration in the workplace. (Memo on Public Christmas Celebrations; Memo on Celebrating Christmas in the Workplace). The campaign, which provides "free assistance to those facing persecution for celebrating Christmas," focuses on situations such as use in retail ads of "holiday" instead of "Christmas", renaming of Christmas trees as "holiday trees", exclusion of religious Christmas carols in schools and bans on religious decorations in public places. Its "Naughty and Nice List" names retailers that specifically refer to Christmas and those that instead use more generic terms in their advertising, on their websites and in their stores.

Israel's New Divorce Law Aids Women By Accelerating Property Split

Israel's Knesset last week passed new divorce legislation that permits courts to award a financial settlement before the divorce is finalized by the giving of a religious divorce document ("get"). The Jerusalem Post reports that the new law will prevent husbands from using their power to refuse to give a get as leverage to achieve a better financial settlement or child custody rights. Under the new law, courts have the power to divide marital assets between the parties 12 months after the divorce action is filed, even if the divorce has not been finalized. Even earlier property distribution is permitted in cases of violent and abusive spouses. (Jerusalem Post.) Most, but not all, members of the Knesset from religious parties opposed the amendments to the Financial Relations Law. It was, however, strongly supported by women's rights proponents who have been working to resolve the problem of so-called agunot -- women who cannot remarry because their husbands refuse to give them a get. [Thanks to Religion and State In Israel for the lead.]

Louisiana Street Preachers' Suit Against City Dismissed

In World Wide Street Preachers Fellowship v. Town of Columbia, Louisiana, 2008 U.S. Dist. LEXIS 90674 (WD LA, Nov. 7, 2008), a Louisiana federal district court-- in a case on remand from the 5th Circuit-- held that a police officer was not motivated by the content of the speech of a group of demonstrators when he dispersed the group, arrested one of its members and threatened to arrest others. The group, an organization of street preachers, on several occassions carried signs protesting abortion and the ordination of women as ministers. The court held that because the officer, in dispersing the demonstration, did not offer protesters any alternative other than ending their demonstration, his interference was not narrowly tailored to further a significant governmental interest and leave open alternative channels of communication. However the court found no widespread municipal practice of infringing speech rights. Therefore it dismisssed plaintiffs' Section 1983 suit against the city. (See prior related postings 1, 2 .)

Indian Court Rejects Ban On Publication of Hindu Book

In India yesterday, the Delhi High Court reversed a lower court decision that had banned the Sarvadeshik Press from publishing of a 135-year old Hindu religious book, Satyarth Prakash, written by social reformer Swami Dayanand Saraswati. IANS reports that the lawsuit challenging the book had alleged that its publication hurt the religious sentiments of Muslims. The High Court said it was not its role to decide on the truthfulness of religious books or to regulate religious sentiments, and said the lawsuit was merely a publicity stunt.

Appeal and New Suit Continue Challenge To Sale of FLDS Property

Members of the FLDS Church are attempting in both state and federal court to prevent the sale of Berry Knoll, a large tract of farm land along the Utah-Arizona border owned by the Church's United Effort Plan Trust. The land was supposed to be a future site of an FLDS temple. The sale is being proposed by the special fiduciary appointed by a Utah state court. (See prior posting 1, 2.) Yesterday's Deseret News reports that the members have filed an emergency appeal with the Utah Supreme Court to block the sale. Church representatives argue that the lower court proceedings that were supposed to ensure that the UEP Trust was properly administered have "now become a vehicle ... to ensure that the trust is administered to destroy and thwart the religious doctrines and goals of the FLDS Church." Also, according to the paper, a lawsuit had now been filed against the fiduciary, Bruce Wisan, in Arizona by FLDS member Willie Jessop.

European Parliament Says Sikh Members Cannot Wear Kirpan In Building

Asian Image reported yesterday that security authorities at the European Parliament in Brussels have decided that the Sikh kirpan (ceremonial dagger) is a security threat, and so have refused to allow Sikh Parliament members to enter the Parliament building wearing their religious daggers. This prevented a new All-Party Sikh Interest Group from holding their planned first meeting in one of the Parliament's main rooms.

Israel's High Court Orders Bus Company To Accept Ads of Women Candidates

In Israel, elections for mayor and City Council of Jerusalem are being held today. (Background JTA article.) Yesterday Israel's High Court of Justice, in a suit filed by the Wake Up Jerusalem movement, ruled that the Egged Bus Cooperative cannot refuse to accept election ads that portray women candidate for Council. According to Y Net News, Canaan Advertising Agency that sells advertising space at the Egged bus stops had refused to accept the posters, fearing that Ultra-Orthodox Jews would destroy the posters and the bus stop shelters on which they hung.

University Offers Refund On Tickets To Controversial Plays

At Southeastern Missouri State University in Cape Girardeau, a student production of Christopher Durang's, Sister Mary Ignatius Explains It All for You, offended Wendy Kurka Rust. The campus theater in which the play was performed is one named after Rust-- presumably because she was a major donor to it. Yesterday's Southeastern Missourian reported that the University has offered to refund the play's $6.40 ticket price to anyone who requests it, and is also offering an $11.80 refund on tickets to Tony Kushner's, Angels in America. Rust wrote a letter to the school complaining about the Durang play, saying: "a play that ridicules and scorns the Christian religion under the label of satire is inappropriate to be included in the offering of season ticket holders." The University provost says that in the future, a committee will decide which plays being performed should be part of the season ticket package.

Recent Articles and Book Of Interest

From SSRN:

• P.G. Monateri, The Prophetic Nature of Equity, (THE CONCEPT OF EQUITY, Daniela Carpi, ed., pp. 69-82, Heidelberg, Winter 2007).


• Perry Dane, A Holy Secular Institution, (Emory Law Journal, Forthcoming, 2008).


• Susan J. Stabil, The Challenges of Opening a Dialogue between Catholic and Secular Feminist Legal Theorists, (U of St. Thomas Legal Studies Research Paper No. 08-33, Oct. 12, 2008).

New Book:

• Edward Kritzler, Jewish Pirates of the Caribbean: How a Generation of Swashbuckling Jews Carved Out an Empire in the New World in Their Quest for Treasure, Religious Freedom--and Revenge, (Doubleday, Nov. 18, 2008), reviewed by San Francisco Chronicle.

Malaysian Blogger Released, But Appeal Being Considered

In September, Malaysian blogger Raja Petra Kamarudin was arrested by Malaysian authorities under the Internal Security Act on charges that articles he posted threatened public order and security. He was charged with "causing tension among the country's multi-racial and multi-religious society" through postings on the news blog Malaysia Today of articles insulting to Muslims and the Prophet Muhammad and defamatory of Malaysia's leaders Amnesty International reported last Friday that the high court in the state of Selangor said that the arrest was unconstitutional and ordered Kamarudin released, ruling that the country's Home Minister Syed acted beyond his powers in having him arrested. However, the Daily Express reports that the Federal Attorney General's Office has been asked to look into a possible appeal of Kamarudin's release.

Recent Prisoner Free Excercise Cases

In High v. Baca, 2008 U.S. Dist. LEXIS 77385 (D NV, Oct. 1, 2008), a Nevada federal district court adopted a federal magistrate's recommendation (2008 U.S. Dist. LEXIS 88077 (Feb. 6, 2008)) not to dismiss plaintiff's claim that his free exercise rights were violated when officials served him breakfast during Ramadan before sunrise, instead of before dawn.

In Johnson v. Sisto, 2008 U.S. Dist. LEXIS 88253 (ED CA, Oct. 21, 2008), a California federal magistrate judge recommended denial of plaintiff's request for a temporary restraining order and preliminary injunction. Plaintiff prisoner alleged that he was denied substitutions for menu items forbidden by his religion and tht he was prevented from wearing his religious headwear in the library.

In Sacred Feather v. Merrill, 2008 U.S. Dist. LEXIS 89783 (D ME, Oct. 29, 2008), a Maine federal district adopted the recommendations of a federal magistrate judge (see prior posting) and dismissed claims by a Native American prisoner. The court concluded that a reasonableness test, rather than a compelling governmental interest test was proper as to plaintiff's First Amendment claims, and that plaintiff had waived his RLUIPA claim.

In Gilbert v. Steed, 2008 U.S. Dist. LEXIS 90507, (D KA, Nov. 6, 2008), a Kansas federal district court held that plaintiff had a plausible free exercise claim. He alleged that he was segregated from other inmates while eating his kosher diet.

In Ketzner v. Williams, 2008 U.S. Dist. LEXIS 90500, (WD MI, Sept. 30, 2008), a Michigan federal district court agreed with a federal magistrate's conclusion that temporarily removing prisoners from the Kosher Meal Program when they are in possession of non-kosher food items does not violate either the Establishment or the Free Exercise clause.

In Garrison v. Dutcher, 2008 U.S. Dist. LEXIS 90504, (WD MI, Sept. 30, 2008), a Michigan federal district court held that RLUIPA does not authorize individual-capacity claims. It held that plaintiff can move ahead on his official-capacity First Amendment and RLUIPA claims alleging delays in delivering him his spiritual herbs. It concluded that the test for a substantial burden under RLUIPA is whether the government, by act or omission, renders impracticable, significantly restricts, or forecloses one's religious exercise, or puts substantial pressure on an individual to modify his behavior in violation of his religious beliefs. Finally the court upheld a prison policy that requires books, including Bibles, to be received only directly from the publisher or an authorized vendor. (See prior related posting.) UPDATE: For later proceedings in the case, see 2009 U.S. Dist. LEXIS 91438 (June 29, 2009) and 2009 U.S. Dist LEXIS 90842 (Sept. 30, 2009).

Sikh Defendant Will Not Be Allowed To Wear Turban At Trial

Today's Stockton (CA) Record reports that a San Joaquin (CA) County Superior Court Judge has ruled that a defendant in a murder case who is a Sikh will not be allowed to wear his turban during trial. Judge Charlotte Orcutt ruled that there is too much risk that 56-year-old Gurparkash Khalsa could hide a weapon or noose in the 18 to 24 feet of fabric. There is concern that other inmates could use the turban to harm Khalsa in the courthouse holding cell, so Khalsa proposed putting it on just outside the courtroom. But this would require bailiffs to spend 10 to 15 minutes with him while he wraps his turban. Khlasa, who is is being held on charges of murdering his daughter's former boyfriend, is not allowed to wear his turban in jail either and has rejected the alternative of a smaller cloth head covering.

Tonight Is 70th Anniversary of Kristallnacht

Tonight is the 70th anniversary of Kristallnacht, a Nazi Germany pogrom that killed 92 Jews. Over 25,000 Jews were arrested and many were sent to concentration camps. Jewish businesses were vandalized and more than 200 synagogues were destroyed. The event is often seen as the beginning of the Holocaust. Vatican Radio reports that Pope Benedict XVI's Angelus Address today recalled the event and appealed more broadly against all forms of discrimination and anti-Semitism. He also called attention to the current slaughter of innocent civilians in the Democratic Republic of Congo. Also, marking Kristallnacht, Lubavitch.com reported on Jewish life in Germany today.

California School Board Says "No" To Display of "Under God" Motto

The trustees of Antelope Valley Union High School District in California last Wednesday defeated, by a vote of 3-2, a proposal to place the motto "one nation under God" on the wall of their board room. Yesterday's Contra Costa Times reports that board proponent Al Beattie said the line from the Pledge of Allegiance does not unconstitutionally promote religion. Opponent Ira Simonds said if any line from the Pledge were put up, he would prefer "with liberty and justice for all".

Rhode Island Auto Dealers Split Over Repeal of Sunday Closing Law

Yesterday's Providence (RI) Journal carries an article over the split among car dealers in Rhode Island over whether the state's ban on Sunday car sales should be repealed. Thirteen other states have similar laws. The Journal reports: "Rhode Island's 60 dealers have split into cultural camps: those who would jump at Sunday work even in a boom, versus those who'll never work on Sundays, even in the current bust."

Saudi Arabia Attempts To Deprogram Arrested Islamic Militants

Today's New York Times Magazine carries an article titled Deprogramming Jihadists. It describes the post-prison rehabilitation program used by Saudi Arabia to deprogram Islamic extremists. According to the article: "Most prisoners complete the program within two months. Upon release, each former jihadist is required to sign a pledge that he has forsaken extremist sympathies; the head of his family must sign as well. Some also receive a car (often a Toyota) and aid from the Interior Ministry in renting a home. Social workers assist former jihadists and their families in making post-release plans for education, employment and, usually, marriage."

Federal Suit To Be Filed On Behalf of Amish Over NY Building Codes

Several towns in northern New York have brought suits to enforce their building code requirements against members of a conservative Amish sect. (See prior postings 1, 2, 3 .) While state courts have rejected their free exercise defenses, WNYF News reported Friday that the Becket fund is planning to file a federal lawsuit against the Town of Morristown on behalf of nearly a dozen Amish men facing code violation charges there. In anticipation of that, a judge in Hammond (NY) has postponed further proceedings in an eviction proceeding against two Amish families there.

Louisiana City's Festival Creates Church-State Issue

Thibodeauxville, Louisiana's annual music and food festival has become the latest focus in the battle over the proper division between church and state. The flyer promoting the festival says it will include "all-day Christian music and dance." A citizen's complaint over this led the ACLU to write the mayor seeking an end to future city participation in events that highlight the Christian faith. However, according to Thursday's Lafourche Parish Daily Comet, the Thibodaux Chamber of Commerce says that it, not the city, is the sponsor of the annual festival, so no church-state issue arises. But the Louisiana ACLU says City Council has a cooperative-endeavor agreement of $10,000 with the Chamber to promote tourism and economic development. Yesterday's Daily Comet reports that the Alliance Defense Fund has offered free legal assistance to the city to fight the ACLU's charge. Chamber of Commerce president Kathy Benoit, though, says that the controversy has been one of the best sources of publicity for the festival.

California Same-Sex Marriage Backers Protest Against Mormon Church

Angry that California's Proposition 8 banning same-sex marriage passed, on Thursday some 2000 protesters demonstrated outside the Mormon Temple in Los Angeles. The Mormon Church was particularly active in campaigning for passage of the ballot measure. (See prior posting.) Reporting on the demonstrations, Britain's Independent says that a public relations war against the Mormon church is planned, with demonstrations likely across California, including during Mormon services today. A report on Thursday's demonstration from LifeSiteNews says one protester urged taxing the Mormon church and others carried signs with slogans such as: "Don't teach hate" and "Mormons have 10 wives - I can't have one?" Some argue that the LDS church and other religious groups violated principles of church-state separation by backing Tuesday's ballot measure. However the Episcopal church in California supports same-sex marriage and says it will continue to work to validate it.

Beyond California, on Friday, according to the New York Times, a rally and march around the headquarters of the Mormon church took place in Salt Lake City (UT). Speaking at the rally, Utah State Senator Scott D. McCoy, one of three openly gay Utah legislators, told the crowd of 2000: "The way to deal with this problem is to love more, not hate."

Meanwhile today's Los Angeles Times reports on more general protests around California over the passage of proposition 8.

UPDATE: On Nov. 7, The LDS Church issued a statement decrying the protests against it, saying "it is wrong to target the Church and its sacred places of worship for being part of the democratic process." The Roman Catholic diocese of Sacramento also issued a statement, saying: "Bigoted attacks on Mormons for the part they played in our coalition are shameful and ignore the reality that Mormon voters were only a small part of the groundswell that supported Proposition 8."

7th Circuit Says Illinois May Reject "Choose Life" License Plates

In Choose Life Illinois, Inc. v. White, (7th Cir., Nov. 7, 2008), the U.S. 7th Circuit Court of Appeals upheld the refusal of the state Secretary of State to issue a special "Choose Life" license plate after proponents obtained the requisite number of signatures requesting it. The court said:

Specialty license plates implicate the speech rights of private speakers, not the government-speech doctrine. This triggers First Amendment "forum" analysis, and we conclude specialty plates are a nonpublic forum. Illinois may not discriminate on the basis of viewpoint, but it may control access to the forum based on the content of a proposed message—provided that any content-based restrictions are reasonable. The distinction between content and viewpoint discrimination makes a difference here.

It is undisputed that Illinois has excluded the entire subject of abortion from its specialty-plate program; it has authorized neither a pro-life plate nor a pro-choice plate. It has done so on the reasonable rationale that messages on specialty license plates give the appearance of having the government’s endorsement, and Illinois does not wish to be perceived as endorsing any position on the subject of abortion. The State’s rejection of a "Choose Life" license plate was thus content based but viewpoint neutral, and because it was also reasonable, there is no First Amendment violation.

Judge Manion wrote a concurring opinion. The court’s decision reversed the district court that had ordered the Secretary of State to issue the specialty plates. (See prior posting.) Today’s Chicago Sun Times reports on the 7th Circuit’s decision. The Thomas More Society, representing Choose Life Illinois, announced that they will seek a rehearing, and if that fails will seek Supreme Court review. [Thanks to Alliance Alert for the lead.]

Cert. Filed In Exorcism Case

A petition for certiorari was filed last Monday with the U.S. Supreme Court in Pleasant Glade Assembly of God v. Schubert, (Docket No. 08-592). In the case, the Texas Supreme Court, in a 6-3 decision, rejected the lawsuit brought by then 17-year old Laura Schubert alleging false imprisonment and assault by the pastor, youth minister and several members of an Assembly of God Church. The suit grew out of psychological injuries plaintiff suffered from a "laying of hands" on her to exorcise demonic forces. The majority held that deciding the case would unconstitutionally entangle the court in matters of church doctrine. (See prior posting).

UPDATE: Here is the full text of the cert. petition. [Thanks to Scott Gant.]

Remaining Claims In "Bong Hits 4 Jesus" Case Settled

Last year, the Supreme Court last year decided Morse v. Frederick, holding that Juneau, Alaska school officials did not violate a student's free speech rights when they confiscated his banner reading "Bong Hits 4 Jesus" displayed at the at the Olympic Torch Relay.(See prior posting.) However, there were additional claims left to be decided on remand. The AP reported yesterday that now the school district and former student Joseph Frederick have reached a settlement in the case. In exchange for Frederick dropping his remaining claims, the school district will pay him $45,000 and will also hire a neutral constitutional law expert to chair a forum on student speech rights this school year. Under the settlement, the school district will continue to enforce its policies prohibiting students from displaying materials that advocate or celebrate illegal drug use.

Media Reports On Role of Religious Voters In Obama's Victory

The media yesterday were filled with interesting articles on the role of religious voters in Barack Obama's election victory. The Wall Street Journal reported: "Mr. Obama won among Catholics, 54% to 45%, made gains among regular churchgoers and eroded a bit of the evangelical support that has been a fixture of Republican electoral success for years, exit polls showed." Newsweek looks at Obama's performance numbers among Evangelicals, Catholics, Jews and Secularists, finding that despite the "fairly relentless God talk" in Obama's campaign 75% of secularists voted for him. As to Evangelicals, McCain got around 74% of their vote, but that was a 5% decrease from George Bush's performance. And a separate article in today's Wall Street Journal suggests that McCain's still strong showing among Evangelicals belies reports during the campaign that "new Evangelicals" might go with the Democrats. [UPDATE: However today's New York Times places a different spin on the data, pointing out that Obama doubled his support among young evangelicals.] Much of the data was from a study published yesterday by Faith In Public Life.

Yesterday's Forward analyzes the Jewish vote, finding that 78% voted for Obama (a higher number than voted for Kerry in 2004). Earlier in the campaign, the level of Jewish support for Obama was much more questionable. The change was a result of concerted outreach efforts, Jewish unease over Sarah Palin and among some young Jews the possible opportunity to recreate the Black-Jewish alliance of civil rights movement days.

Finally Virtue Online publishes a fascinating account of private meetings during the primary campaign between Episcopal Bishop Gene Robinson and Obama. Robinson, the first gay bishop consecrated by the Episcopal church, discussed the role of religion in public life with Obama. Robinson, a controversial figure, gave this account of his first meeting with Obama: "The first words out of his mouth were, 'Well you're certainly causing a lot of trouble.' My response to him was, 'Well that makes two of us.'" Robinson says they also talked about their shared experience of being a "first", its dangers and the expectations it creates.

UPDATE: Today's New York Times also carries an article on the feelings of Muslim college students about the Obama victory. Most Muslims supported Obama. However they were frustrated by rumors that Obama was a Muslim and finally heartened by Colin Powell's statement rejecting the premise underlying the rumor. Many felt that open Muslim support would hurt Obama's chances.

DC Case Seeks To End Life Support Over Family's Religious Objections

Yesterday's Washington Post reports on a lawsuit filed in D.C. Superior Court by the Children's National Medical Center seeking an order allowing it to end life support for a brain-dead 12-year old boy. Motl Brody's parents however say that their Orthodox Jewish beliefs do not recognize brain death, and that their son's circulatory and respiratory systems are functioning with mechanical assistance. D.C. law allows doctors to declare patients dead if they lack brain activity, and does not contain an exception for families with contrary religious beliefs. The law of New York where the Brodys live does have such an exception. [Thanks to J.J. Landa for the lead.]

Green Bay Now Will Permit Combined Religious-Secular Holiday Displays

Green Bay, Wisconsin City Council seems to be having a change of heart over holiday displays at city hall. Yesterday's Appleton (WI) Post-Crescent reports that the proposed policy that would have allowed only secular displays on government property has now been changed. By a vote of 8-4, Council added language stating that the U.S. Supreme Court has approved combined religious and nonreligious displays, and that city officials, at their discretion, may permit these as well as purely secular ones. Before final passage, Green Bay's city attorney will study the new language. According to WBAY News, Freedom from Religion Foundation, unhappy with the new language, will move ahead with an appeal they filed this week in a case challenging last year's nativity scene display at city hall. (See prior posting.) A federal district court had dismissed their challenge after the city enacted a moratorium on future displays.

South African Court Recognizes Hindu Marriages

In South Africa,the Durban High Court issued a ruling yesterday that for the first time recognizes Hindu marriages for purposes of the country's Intestate Succession Law-- the law that governs inheritance when someone does not leave a will. IOL reports that the decision allows Saloshinie Govender to inherit her husband's property as his "spouse" under that law. On the other side were the parents of Govender's late husband. They would have inherited his property if he did not leave a wife recognized by the law as a survivor.

NY Appellate Court Rejects Claim Against State By Kosher Food Seller

Commack Self-service Kosher Meats, Inc. v Rudgers, (NY App. Div., Nov. 6, 2008), is a lawsuit brought by a kosher food business that was cited for violating the New York's law (later held unconstitutional) which prohibited the sale of food as kosher if it was not prepared in accordance with Orthodox Jewish requirements. Plaintiff Commack argued that its reputation and business were damaged by the state when it discontinued a court case in which plaintiff had been charged with violating the kosher law. Commack says this caused it to lose the opportunity to defend itself and be exonerated. The court held, however, that "Commack's failure to appeal from or otherwise challenge District Court's order permitting the withdrawal of the state's action is fatal to their claim." The court said that even if that were not the case, Commack would not succeed on the merits since there was nothing in the record but speculation to support the charge that authorities acted with intentional malice in enforcing then-valid laws. [Thanks to J.J. Landa for the lead.]

Islamist Cleric In Britan Says No To Poppies For Remembrance Day

In Britain, it is traditional to wear a red poppy on Remembrance Day (Nov. 11) to show respect for the sacrifices of veterans and civilians during wartime, especially remembering World War I. Britain's Daily Star reports today that some "Muslim strongholds [in Britain] have become no-go zones for poppy sellers." Controversial Islamist cleric Anjem Choudary said any Muslim who wears a poppy is betraying his religion and backing “"British nationalism". This came a few days after Choudary said that giving sweets to children on Halloween is "the greatest crime any person can commit." Many British Muslims disagree with Choudary. Shahid Malik, a Muslim member of Parliament from Dewsbury and Undersecretary of State in the Ministry of Justice says he will be selling poppies in his home town of Dewsbury on Saturday.

Kyrgystan's Parliament Passes Restrictive Religion Law

According to Forum 18, Kyrgystan's Parliament yesterday unanimously passed a restrictive religion law. Under the law, in order for a religion to register, it must have 200 members whose identities are confirmed by local administrations. Yesterday's International Herald Tribune reports that the law also bans private religious schools and the dissemination of religious material in public places. It curtails proselytism, all in an attempt to limit the influence of foreign Christian evangelical and radical Islamic groups. Religious organizations will be required to disclose financial information to authorities. The law will be sent to President Kurmanbek Bakiyev around November 15. He will have a month to decide whether to sign it. It is expected that he will approve it. Rights activists, such as the Institute on Religion & Public Policy (letter to Pres. Bakiyev), say the law is a violation of international human rights standards.

Michigan Court Upholds Zoning Denial; Defines "Church"

In Great Lakes Society v. Georgetown Charter Township, (MI Ct. App., Oct. 30, 2008), the Michigan Court of Appeals upheld the Georgetown Zoning Board of Appeals' denial of an application for a special use permit and a variance that had been requested for a religious center. The court first concluded that the proposed building was a "church" for zoning purposes and that the trial court had applied an incorrect standard in holding otherwise. Great Lakes Society ministers to persons who have chemical sensitivities to common environmental pollutants. It also has a phone book listing under "Nutritionists". Its proposed building would contain space for a number of activities related to its ministry. The appellate court held that it is sufficient that the building is primarily used for public worship and reasonably closely related activities. The Court of Appeals went on to find that the Zoning Board of Appeals and the Township "properly decided not to grant a variance with respect to the proposed building location and that they did not violate the RLUIPA or any constitutional guarantees by making that decision."

Suit Challenging Illinois Grant To Rebuild Church Remanded To State Court

In Sherman v. Blagojevich, 2008 U.S. Dist. LEXIS 89237 (CD IL, Nov. 4, 2008), an Illinois taxpayer sued the governor and other Illinois state officials challenging a state program that authorized the grant of $1,000,000 for the reconstruction of the Pilgrim Baptist Church and related buildings that were destroyed in a 2006 fire. The suit alleged violations of the Establishment Clause and of the Illinois constitution. The suit was originally filed in state court, but was removed to federal district court upon motion of the governor. In this decision, the federal court (upon motion of one of the other defendants) remanded the case to state court because plaintiff lacks taxpayer standing to pursue the claim in federal court. (See prior related posting.)

FLDS Asks Federal Court To Stop State Sale Of UEP Land

Yesterday's Deseret News reports that members of the FLDS Church have filed in federal court seeking a temporary restraining order to stop a fiduciary appointed by a Utah state judge from selling land belonging to the FLDS United Effort Plan Trust. At issue is the proposed sale of a large tract of farm land known as Berry Knoll for $3 million. (See prior posting.) FLDS lawyers say that the free exercise rights of FLDS members were infringed when the state court took control of the trust holding FLDS lands and reformed it to eliminate its religious purpose. A supporting affidavit filed by FLDS member Willie Jessop said that the court had taken over a sacred trust and had appointed a "state ordained bishop" to administer it. Jessop argues that the court-appointed special fiduciary is requiring the church to depart from its own doctrines and follow only neutral principles dictated by the state.

In 2006 the Utah court took steps to reform the trust in a way that avoided inquiry into whether anyone living on UEP land was involved in a polygamous relationship. (See prior posting.) Jessop says: "Of course the trust was operated under religious principles, and of course the trust 'discriminated' on the basis of determinations made in accordance with Holy Scripture and divine revelation."

Cert. Filed In Eagle Protection Act Case

Yesterday's Great Falls (MT) Tribune reports on last month's filing of a petition for certiorari to the U.S. Supreme Court in United States v. Friday, a case in which the 10th Circuit rejected a challenge under the Religious Freedom Restoration Act to the government's enforcement of the Bald and Golden Eagle Protection Act. (See prior posting). A petition for en banc rehearing was also rejected. The cert. petition was filed on Oct. 1, and the government was given an extension until Dec. 8 to reply. (Docket Entry.) The Northern Arapaho Tribe plans to file an amicus brief supporting the cert. petition of Winslow Friday who killed a bald eagle for use in a Northern Arapaho Sun Dance. A major issue in the case is the extent to which an appellate court can review de novo "constitutional facts" found by the trial court in a First Amendment case.

Advocacy Groups Have Varied Reactions To Tuesday's Election Results

The reactions to Tuesday's election results from advocacy groups have, not surprisingly, run the gamut. Americans United yesterday issued an election analysis titled "The Religious Right and Election 2008: Down But Not Out." It warned:

After eight years of unprecedented access to the White House and (until 2006) in the halls of Congress, Religious Right organizations are about to lose a lot of clout with much of official Washington and could see their influence at the national level diminished. But it’s unlikely any of these organizations will close down. Rather, they will organize to defeat individual-freedom initiatives put forward by President Barack Obama, and they will place more emphasis on state and local governments as a way to press their agenda forward.

Yesterday's Christian Post reported that Christian groups had varied reactions to Obama's win. The National Council of Churches USA issued a statement congratulating Obama and promising to work with him "to respond to the realities that a loving God places before us each day." Looking in a different direction, Focus on the Family took heart in the fact that Democrats failed to win the veto-proof 60 seats in the Senate. They were also encouraged by the passage of anti-gay marriage amendments in three states. The group said that these results "give values voters reason to stay tuned to development on Capitol Hill."

Yesterday's New York Times reports similarly that the approval of the bans on gay marriage, along with passage in Arkansas of a provision intended to bar gays and lesbians from adopting children, were "a stunning victory for religious conservatives, who had little else to celebrate on an Election Day." It points out that California will still be able to offer civil unions to same-sex couples.

Evangelist Sues Louisiana School Over Its Speech Permit Policy

Alliance Defense Fund announced yesterday that it had filed a federal lawsuit against Southeastern Louisiana University officials challenging permit requirements that were invoked to prevent a traveling evangelist from evangelizing students on campus. The complaint (full text) alleges that the speech policy acts as an unconstitutional prior restraint on speech.

Student Sent Home From School Because Jesus Costume Was Disruptive

At Paramus, New Jersey's West Brook Middle School, eighth grader Alex Woinski dressed up as Jesus for Halloween. According to Monday's Christian Post, school officials said his costume was disruptive and told him he needed to remove his beard and crown of thorns. The student refused and he was sent home. Principal Joan Broe said that he was sent home not because of the religious nature of the costume, but because other students' reactions meant that the education process was being interrupted. Woinski, who has developed an interest in religion, comes from a family where his mother is Catholic and his father is Jewish. The boy recently celebrated his Bar Mitzvah.

Compilation of Obama's Statements on Faith and Church-State Relations

With Barack Obama's victory in yesterday's Presidential elections, I thought it would be useful to compile some of his major statements on the role of religious faith and church-state relationships. Here are five major statements:

• Barack Obama On Faith (from Obama '08 website).
• Saddleback Forum Interview (Aug. 16, 2008).
• Speech on Faith In America (July 1, 2008).
• Obama E-mail interview on CBN's Brody File (July 29, 2007).
• Call to Renewal Conference Keynote (June 28, 2006).

Court Rejects Religious Group's Challenges To Chicago's Zoning Permit Requirement

The decision from several months ago in World Outreach Conference Center v. City of Chicago, 2008 U.S. Dist. LEXIS 88747 (ND IL, May 13, 2008) has recently become available on LEXIS. In the case, an Illinois federal district court rejected a series of challenges to the 2-year delay by the city of Chicago in granting World Outreach Conference Center a single room occupancy (SRO) license for a former YMCA building it purchased. WOCC wanted to create "a Christ-oriented community center ... and ... provid[e] shelter to the needy and homeless by renting out the SRO units." The court dismissed plaintiffs' nine-count complaint which had alleged violations of RLUIPA, the free exerrcise and establishment clauses, the equal protection clause, Chicago's zoning law and the Illinois Religious Freedom Restoration Act.

Ballot Measure Results: Issues on Gay Marriage, Abortion and Stem Cells [UPDATED]

In yesterday's election, six ballot measures were of particular interest to some religious groups. In 3 states, bans on gay marriage were approved. In two states, abortion restrictions were defeated. In Michigan final results show passage of a proposed expansion of permitted stem cell research. The Secretary of State's website this morning is reporting different results than are tne news media:

• California's Proposition 8 banning same sex marriage passed by nearly 52% with most votes counted.
• Florida Marriage Amendment banning same-sex marriage passed by 62%.
• Arizona Proposition 102 banning same-sex marriage passed by 56.5%.
• Michigan proposal 08-102 to permit human and embryonic stem cell research, subject to various restrictions, passed by a 53% vote (99% of precincts reporting) according to reports by CNN and the Detroit Free Press . Earlier returns from the Secretary of State's office showing different results are just now being updated by that office.
• South Dakota's Initiated Measure 11 to prohibit abortions except where there is risk to life or substantial and irreversible health risk, or reported rape or incest, defeated by a 55% vote.
• Colorado Amendment 48 defining "person" to include any human being from the moment of fertilization, defeated by 73% (with 87% of precincts reporting) (CNN report).

See prior posting for links to texts of the ballot measures.

UPDATE: Also of relevance is the passage by an almost 57% vote (89% of counties reporting) of a ballot measure in Arkansas prohibiting adoptions or foster parenting by unmarried couples. Its backers were primarily concerned with barring adoptions by same-sex couples, though the amendment also covers heterosexual couples.

Settlement Reached In EEOC Suit Against University of Phoenix Online

Today's Arizona Republic reports that a proposed settlement has been filed in a religious discrimination lawsuit filed by the EEOC against Apollo Group Inc. The lawsuit alleges that the company's University of Phoenix Online discriminated against non-Mormon employees. The suit was brought on behalf of 52 enrollment counsellors who say Mormons were favored in sales, leads, promotions and tuition waivers. In the proposed settlement, University of Phoenix will pay damages of $1.89 million, the company will notify employees that it will not tolerate religious favoritism and will fire anyone who engages in it, the company will hire a diversity officer and the EEOC will monitor compliance for four years. The court must still approve the settlement which is believed to be the largest ever in an EEOC religious discrimination case.

Protective Appeal Filed In Green Bay Holiday Display Case

The Green Bay (WI) Press-Gazette today reports that an appeal has been filed with the U.S. 7th Circuit Court of Appeals in Freedom from Religion Foundation, Inc. v. City of Green Bay. Last month, without reaching the merits, a federal district court dismissed an Establishment Clause challenge to a nativity scene displayed last year at city hall because the city had enacted a moratorium on future displays. (See prior posting.) FFRF says it is filing the appeal in case City Council rejects a proposed resolution that would limit future displays to secular ones. (See prior posting.)

An Essay For Election Day

Today is, of course, an historically important election day in the United States. As we experience the day, this essay from Haaretz last week by Bradley Burston, titled "Voting As a Religious Experience" is worth a read. It is the reflections of the writer as he mails off his absentee ballot to California from a post office in Jerusalem. He says in part:

When you break it down, there is little in the act of voting that differs from the most pedestrian of bureaucratic errands. Yet there is something hugely humbling in this, something very close to the feeling of the Fear of God. There is majesty to it, and devotion and the palpable sense of affecting, if only in a small way - but directly - the world's course.

Ours is an age of congenital cynicism.... Still, there is something about voting that overpowers alienation and chronic disappointment and cosmopolitanism and cool.

California County Will Accommodate Muslim Women On Headscarves In Arrests

AP reported yesterday that San Bernardino County, California has settled a lawsuit brought by a Muslim woman who claimed her religious freedom was violated after her arrest when deputies required her to remove her hijab (headscarf). Under the settlement announced Monday, Muslim women who are arrested must be provided a private area to remove their headscarves and be provided with county-issued ones for use when they are in the presence of men. The suit was filed last December by the ACLU on behalf of Muslim Ph.D. student Jameelah Medina who was arrested-- but never charged-- when she was discovered to be riding a Los Angeles commuter train without a valid ticket. (See prior posting.) [Thanks to Blog from the Capital for the lead.]

Apartment Manager- Tenant Battle Over Statue of Jesus

In Muncie, Indiana, owners of an apartment complex are in a dispute with one of their tenants, Daniel Long. Long has put up a 4-foot tall statue of Jesus outside his apartment patio door, including a spotlight that casts a shadow of the statue on the building. The statue is in a prominent place on the Colonial Crest apartment complex, and overlooks the location where voters will be voting in today's election. According to yesterday's Muncie Star-Press, apartment manager Mike Desloover has asked Long to remove the statute, and tried to physically remove it when Long failed to do so. Citing the Federal Fair Housing Act, Desloover is concerned that the prominent statute might be seen as indicating the complex is not welcoming to non-Christians. Long says the statue is his personal statement. He thinks of Jesus 24 hours a day and wants to have Jesus with him all the time.

Iraqi Minority Religions Voted Some Representation On Provincial Councils

Yesterday, Iraq's Parliament cleared the way for Provincial Council elections in January by passing a bill guaranteeing a small number of seats to religious minorities. AFP and the Christian Post report that Christians protested when in September Parliament mandated new elections, but eliminated previously guaranteed seats for minorities. Parliament cited lack of census information since many Christians have fled the country. Yesterday's vote partially reverses the September decision. It gives one seat to Christians on the councils in Baghdad, Ninevah and Basra provinces; one seat for Yazidis and one for the Shabak in Ninevah; and one seat for Sabeans in Baghdad province. The United Nations last month proposed 12 seats for religious minorities, instead of the six that Parliament approved. Christians remain dissatisfied with the smaller number of seats.

Army Discharges Trainee Who Assaulted Target of Anti-Semitism

AP reported yesterday that the Army has now disclosed the non-judicial punishment it has imposed on an Army trainee who physically attacked a Jewish soldier who was also in basic training at Ft. Benning, Georgia. The victim, Pvt. Michael Handman, had complained about anti-Semitic harassment by two drill sergeants a few days before the assault on him. (See prior posting.) An Army spokesman said: "The soldier that was punished for the assault on Pvt. Handman has been processed for discharge from the Army."

Religious Issues Will Be Important In Upcoming Israeli Elections

Israel will be holding elections in February, and the Jerusalem Post reported last week that religious issues will be important in the election battle. One key issue is civil marriages. Currently only marriages performed by Jewish, Christian or Muslim religious authorities are permitted in Israel. Some 300,000 Israelis-- many Russian immigrants or their children-- have Jewish ancestry, but are not Jewish according to rabbinic law (because their mother was not Jewish and they did not convert according to Orthodox religious law). They are unable to marry inside the country. Also mixed marriages between Jews and non-Jews are not performed in Israel. In all of these cases, individuals have to travel outside the country to marry. Another item that may find its way into the campaign is a proposed reform of the way that rabbinic courts handle divorces. Some want to separate determination of financial issues from the giving of a get (a Jewish divorce document) by the husband. This may give courts more leverage to force husbands to sign a get. The resolution of these and other religious issues will depend on which religious parties are part of a majority coalition after elections. [Thanks to Religion and State in Israel for the lead.]

Morocco Bars French Magazine Issue On Relationship of Christianity and Islam

Moroccan Information Minister Khalid Naciri says the Moroccan government has banned the current issue of the French magazine L'Express International. According to an AP report yesterday, the step was taken under the press code (Code de la Presse, Art. 29) that allows the government to ban any publication offensive to Islam or the king. The offending issue contained articles exploring the relationship between Islam and Christianity. The cover was titled "The Jesus-Muhammad Shock." Editors of the magazine said they had gone to lengths to try to abide by Islamic norms in the Moroccan edition, cloaking the face of Muhammad with a white veil in a cover picture that also featured Jesus. In the edition on sale in France, Muhammad's face was not covered. A report on the L'Express website shows photos of both versions of the cover.

Ballot Measures In 6 States Watched By Religious Groups

At least six states on Tuesday have ballot measures that are being watched by religious groups. Here they are, along with links to the official ballot language for each proposal:

• Florida- Proposal 2- Marriage Protection Amendment.
• California- Proposition 8- Initiative to Eliminate Right of Same-Sex Couples to Marry.
• Arizona- Proposition 102- Constitutional Amendment Relating to Marriage.
• Michigan- Proposal 08-12- Proposed Constitutional Amendment on Human Embryo and Embryonic Stem Cell Research.
• South Dakota- Initiated Measure 11- To Prohibit Abortions Except in Cases Where the Mother's Life or Health Is At a Substantial and Irreversible Risk, and In Cases of Reported Rape and Incest.
• Colorado- Amendment 48- Definition of Person.

Saturday's American Chronicle has a report on ballot measures around the country.

New Articles and Book of Interest

From SSRN:

• Richard J. Ross, Puritan Godly Discipline in Comparative Perspective: Legal Pluralism and the Sources of 'Intensity', (American Historical Review, Vol. 113, pp. 975-1002, 2008).
• John Witte & Joel A. Nichols, More than a Mere Contract: Marriage as Contract and Covenant in Law and Theology, (University of St. Thomas Law Journal, Vol. 5, p. 595, 2008).
• Barbara P. Billauer, With Liberty and Justice for All: Abortion, Religious Freedom and the Constitution, (October 31, 2008).
• A. Scott Loveless, The Forgotten Founding Document, (October 23, 2008).
• Thomas Charles Berg, Religious Choice and Exclusions of Religion,(PENNumbra, 2008).
• Ben Saul, Wearing Thin: Restrictions on Islamic Headscarves and Other Religious Symbols, (FORCED MIGRATION, HUMAN RIGHTS AND SECURITY, pp. 181-212, J. McAdam, (ed), Hart Publishing, UK, 2008).
• Phiolmila Tsoukala, Marrying Family Law to the Nation, (October 23, 2008).

PLI:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (in PLI Course Handbook, Tax Strategies for Corporate Acquisitions, Dispositions, Spin-Offs, Joint Ventures, Financings, Reorganizations & Restructurings, October 2008).

From SmartCILP and elsewhere:

• Daniel Dalton, The Religious Land Use and Institutionalized Persons Act Update, 40 Urban Lawyer 603-622 (2008).
• David F. Holland, Sovereign Silences and the Voice of War in the American Conflict Over Slavery, 26 Law & History Review 571-594 (2008).
• John S. Kane, Refining Chevron--Restoring Judicial Review to Protect Religious Refugees, 60 Administrative Law Review 513-591 (2008).
• Lena Salaymeh, Early Islamic Legal-Historical Precedents: Prisoners of War, 26 Law & History Review 521-544 (2008).
• Narendra Subramanian, Legal Change and Gender Inequality: Changes in Muslim Family Law in India [abstract], 33 Law & Social Inquiry 631-672 (2008).
• Eli Wald, The Rise of the Jewish Law Firm or Is the Jewish Law Firm Generic?, 76 UMKC Law Review 885-938 (2008).
• John Witte, Jr. Rights, Resistance, and Revolution in the Western Tradition: Early Protestant Foundations, 26 Law & History Review 545-570 (2008).
• The full text of Volume 47, No. 2 (2008) of the Journal of Catholic Legal Studies is available online. It includes a Symposium on Catholic Teaching, Catholic Values, And Catholic Voters: Reflections On Forming Consciences For Faithful Citizenship, as well as articles on migration, just wars, and economic ordering.
• Journal of Church & State, Vol. 50, No. 3 (Summer 2008) has recently been published. The Table of Contents is online.

Recent Book:

• Tarek Fatah, Chasing a Mirage — The Tragic Illusion of the Islamic State, (John Wiley & Sons, May 2008), reviewed in Pakistan's Daily Times and Haaretz.

Muslim Group To Meet In Vatican On Interfaith Relations

Common Word, a group of Muslim leaders and scholars, will meet for three days beginning tomorrow in the Vatican with Catholic officials including the Pope. Reuters today reports that the group wants to develop better interfaith relations, including a joint crisis management plan that could diffuse tensions such as those that arose in 2006 after a Danish newspaper published cartoons of the Prophet Muhammad. The group would also speak out against persecution of Christians in Iraq. The group has previously met with Protestant leaders. It was formed, issuing the Common Word manifesto, last October partly in response to a speech by Pope Benedict XVI in Regensburg that was seen by Muslims as offensive.

Presidential Campaigns Target Church Members Yesterday

Yesterday, according to the AP, volunteers for both the Obama and McCain campaigns attempted to bring their candidates' messages to churches as Tuesday's election approaches. In order to comply with IRS rules, the campaigns did not involve the churches, but instead asked individual supporters who are church members to distribute candidate messages. The McCain campaign distributed literature and recruited volunteers for last-minute phone banks. The Obama campaign asked members of black churches in battleground states to read a "nonpartisan letter" from Obama during church announcements.

India's Tribal Religions Want Separate Census Recognition

Today's Calcutta Telegraph reports that in India, members of nature worshipping tribal religions in the state of Jharkhand are demanding that they be identified separately in census records. Currently they are generally included in census records as Hindus, Muslims or Christians, but they say they have their own set of customs and traditions and should be recognized as a separate minority religion.

Malaysia About To Bar Muslims From Practicing Yoga

According to today's Brunei News, on Friday Malaysia's National Fatwa Council will issue a ruling barring Muslims in the country from practicing or teaching yoga. The country's Department of Islamic Development undertook a 6-month study of the practice after Zakaria Stapa of Universiti Kebangsaan, Malaysia's Islamic Studies Centre, said yoga could lead Muslims to deviate from Islamic teachings. Supporters of yoga, which has Hindu origins, say it can be practiced without religious content. An op-ed in today's Malaysia Star by a Muslim who practices yoga for relaxation and to control back pain takes strong issue with the proposed fatwa. [Thanks to Scott Mange for the lead.]

Canadian Court Concerns Over Kirpan Lead To Testimony Via Teleconference

In Canada, a Calgary, Alberta judge has ruled on a compromise arrangement to obtain trial testimony by a Sikh man who was originally refused entrance into the Court of Queen's Bench because he refused for religious reasons to remove his kirpan (ceremonial sword). Yesterday's Calgary Herald reports that Justice Bryan Mahoney will now permit Tejinder Singh Sidhu to testify by video conference. Sidhu was a witness to a fatal car crash in 2006. Court security procedures bar anyone taking into court an object that could be used as a weapon.

Children Taken In Anti-Polygamy Raid 50 Years Ago Want Apology

Fifty years ago, Utah officials took Vera Black's seven children and threatened to place them in adoptive homes because Black refused to renounce polygamy. The Salt Lake Tribune reported yesterday that Black's children are now asking the state to apologize to their elderly mother while she is still alive. Vera and her husband Leonard were targeted as part of a 1953 raid which unsuccessfully attempted to end polygamy in Short Creek, Utah and Colorado City, Arizona. In their 1954 trial, the Blacks said they had not lived together since the raid, but because they refused to renounce plural marriage the court found that their home was an "immoral environment" and ordered their children into foster care. Prosecutors pointed out that 5 of Leonard Black's older daughters were in plural marriages. After the appeal process had run its course, the state took custody of the seven children in January 1956. Six months later, in order to avoid the children being placed for adoption, Vera announced that while she still believed in polygamy, she would "discourage my children from entering into polygamous marriages as long as the state has laws against it." The state returned the children to Vera. One of the daughters, Lillian, said that the six months away only "made us love our parents and our religion much more."

Recent Prisoner Free Exercise Cases

In Garrison v. Dutcher, 2008 U.S. Dist. LEXIS 85727, (WD MI, Aug. 14, 2008), a Michigan federal magistrate judge recommended dismissal of an inmate's RLUIPA and free exercise challenges to delays in delivering him spiritual herbs mailed to him, and the mail room's rejection of a Bible mailed to him because it was sent by an unauthorized vendor.

In McQuiter v. Burnett, 2008 U.S. Dist. LEXIS 74909 (WD MI, Sept. 29, 2008), a Michigan federal district court adopted in part a magistrate's recommendations, 2008 U.S. Dist. LEXIS 85739, (July 30, 2008). The court agreed that summary judgment should be granted to defendants because valid reasons exist to refuse to provide prisoner plaintiff a Kosher diet. Prison officials found that plaintiff's lack of knowledge about his claimed religious beliefs indicated a lack of sincerity. However the court rejected the magistrate's conclusion that Plaintiff may assert individual capacity claims under RLUIPA.

In Mann v. Wilkinson, 2008 U.S. Dist. LEXIS 86606, (SD OH, Sept. 17, 2008), an Ohio federal district court held that an inmate's claim regarding officials' refusal to return to him a pamphlet setting out the Christian Identity Church's doctrinal statement of beliefs is now moot. The pamphlet has been returned to him and changes in the screening process for religious literature make future withholding of religious publications is certainly unlikely. (See prior related posting).
In Wiley v. Glover, 2008 U.S. Dist. LEXIS 87185, (MD AL, Sept. 3, 2008), an Alabama federal magistrate judge recommended dismissal of a claim by a Hebrew Israelite prisoner that his free exercise rights were violated by the jail's hygiene policy requiring him to have short hair. On Oct. 17, (2008 U.S. Dist. LEXIS 83979), the court vacated its earlier adoption of the magistrate's recommendations and gave plaintiff until Nov. 3 to file objections to the magistrate's report.

In Vazquez v. Brown, 2008 U.S. Dist. LEXIS 87993, (D NJ, Oct. 30, 2008), a New Jersey federal district court denied a preliminary injunction to a prisoner of the Santeria faith who was denied a consecrated beaded necklace, and was required to obtain religious oils through the prison chaplain instead of having them mailed directly.

In Maier v. Mavrinac, 2008 U.S. Dist. LEXIS 87949, (D MT, Oct. 30, 2008), a Montana federal district court dismissed a prisoner's free exercise claim regarding conditions of administrative segregation because plaintiff had been transferred out of the correctional facility about which he complained.