Wyoming Prisons Will Accommodate Muslim Prisoner Meal Times

The Jackson Hole (WY) Star Tribune reported last month that the Wyoming Department of Corrections has adopted a new policy to accommodate the religious needs of Muslim inmates. The new policy was agreed to in order to settle a lawsuit filed by the ACLU on behalf of two prisoners. It challenged a rule requiring inmates to eat their meals within 20 minutes of delivery. This mandate often interfered with Muslim prayer times. Now prisoners receiving religious meals will be permitted to keep the meals in their cells until the next meal is served. Those eating in dining halls will also get timing adjustments. Special arrangements will be made for Muslim prisoners to obtain meals when religious fast periods end. Finally, the settlement also requires the prison to install a new microwave oven that will be used only for pork-free food.

Mumbai Muslim Cemetery Refuses To Bury Terrorists; Police Seeking Alternatives

In India, at least one Muslim cemetery is refusing to bury the bodies of the slain Mumbai terrorists. Yesterday's London Times reports that the Jama Masjid Trust said it will not bury the men in its Badakabrastan graveyard because they could not be true followers of Islam. It says that no follower of Islam would be permitted to commit such barbaric crimes. A senior police inspector says: "we are bound to see that their last rites are performed according to the religion they follow. We have heard the trust's decision. We are considering what to do now." There are seven other Muslim cemeteries in Mumbai. However it is anticipated that they will follow the lead of the influential Jama Masjid.

President Bush Talks About Faith In His Life

On Friday, the White House posted on its website excerpts from the interview of President Bush and First Lady Laura Bush by Doro Bush Koch for StoryCorps. Here is one exchange:

Q What role does faith play in your day-to-day life?

THE PRESIDENT: I've been in the Bible every day since I've been the President, and I have been affected by people's prayers a lot. I have found that faith is comforting, faith is strengthening, faith has been important....

I would advise politicians, however, to be careful about faith in the public arena. ...In other words, politicians should not be judgmental people based upon their faith. They should recognize -- as least I have recognized I am a lowly sinner seeking redemption, and therefore have been very careful about saying (accept) my faith or you're bad. In other words, if you don't accept what I believe, you're a bad person.

And the greatness of America -- it really is -- is that you can worship or not worship and be equally American. And it doesn't matter how you choose to worship; you're equally American. And it's very important for any President to jealously protect, guard, and strengthen that freedom.

Pope To Visit Israel In May To Ease Catholic-Jewish Tensions

Haaretz reported last week that Pope Benedict XVI will visit Israel and the Palestinian Territories in May. The visit is designed to reduce some of the tension of recent weeks over the timing by the Vatican in moving toward the canonization of Pope Pius XII. Many Jews say that Pius XII failed to protest the murder of Jews during the Holocaust and did not intervene when Jews were deported from Rome to Auschwitz. Pope Benedict and many other Catholics contend that Pius did help save many Jews during World War II. Benedict is considering a request to delay the canonization process until all the Holocaust-related documents in the Vatican archives are released-- probably in about 7 years. Some conservatives in the Vatican however want the canonization process sped up.

Recent Articles and Book of Interest

From SSRN:

• Frederick Mark Gedicks, Indeterminacy and the Establishment Clause, (Constitutional Commentary, 2009).

FromSmartCILP:

• Mark DeForrest, The Use and Scope of Extrinsic Evidence in Evaluating Establishment Clause Cases in Light of the Lemon Test's Secular Purpose Requirement, 20 Regent University Law Review 201-255 (2007-2008).


• Gary S. Gildin, Book Review: The Protection of Free Exercise of Religion for Minority Faiths, (Reviewing Bruce Ledewitz, American Religious Democracy), 14 Widener Law Review 255-264 (2008).


• The Role of Religion in Public Debate. Introduction by Hon. Diane S. Sykes; articles by James W. Skillen, Robert Audi and Hon. Michael W. McConnell; response by Kent Greenawalt. 20 Regent U. L. Rev. 301-335 (2007-2008).

Recent Book:

• Phillip F. Lawler, The Faithful Departed: The Collapse of Boston’s Catholic Culture, (Encounter Books, Feb. 2008), reviewed on PowerBlog.

Religious Coalition Presses For New Policies On Mortgage Foreclosures

Saturday's Washington Post reports that a coalition of 1000 religious congregations, operating under the label PICO National Network, is attempting to change national economic policies in a way that prevents mortgage foreclosures. The group, which recently held a "prayer rally" outside of the Treasury Building, wants a requirement that every bank receiving federal bailout money must agree to a uniform set of loan-modification procedures. Mortgage payments would have to be set at no higher than 34% of income, and in some cases principal on loans would be reduced. Many congregations say that members are turning to them for help when they are hit by the current financial crisis.

Infringing Confession's Confidentiality OK Under Australia's Free Exercise Clause

In SDW v Church of Jesus Christ of Latter-Day Saints, (NSW Sup. Ct., Nov. 27, 2008),the Supreme Court of the Australian state of New South Wales held that the statute of limitations had run on a claim by a woman who contended that the Mormon Church breached a duty of care it owed to her. The woman had, as a teenager, been sexually molested by her stepfather, who was excommunicated from the Church as a result. Plaintiff now claims that the Church had a duty to protect her against further molestation by, among other things, reporting her step-father to child protection or police authorities. In the course of its decision, the Court held that a law overriding the confidentiality of a religious confession is not an unconstitutional infringement of the free exercise of religion that is protected by Australia's Constitution, Sec. 116. The court found that this free exercise argument was so unmeritorious that it refused to include costs associated with presenting the argument in those costs assessed against plaintiff. Australia's Herald Sun reported on the decision last week.

Assault Charge To Be Retried Under Parent Discipline Defense

In State of Washington v. McHenry, (WA Ct, App., Nov. 25, 2008), a Washington state appellate court reversed and remanded for retrial a defendant's conviction for assaulting his daughter with a knife. The court upheld his conviction on other counts of assault against the daughter. On the one count, defendant claimed that his religion allowed him, as a father, to cut his daughter's hair if he believed she was using her beauty to be promiscuous. The court held that failure of defendant's counsel to request a jury instruction under RCW 9A.16.100 (which allows a parent to impose reasonable and moderate physical discipline on a child) amounted to ineffective assistance of counsel on that count.

Recently Available Prisoner Free Exercise Cases

In Holloway v. Bizzaro, 2008 U.S. Dist. LEXIS 94861 (SD FL, June 27, 2008), a Florida federal magistrate judge recommended dismissal of an inmate's damage claim. Plaintiff claimed that denial of pork-free meals violated of his religious rights. Under the Prison Litigation Reform Act, however, plaintiff can recover compensatory damages only if he suffered a physical injury.

In Abobkr v. Mills, 2008 U.S. Dist. LEXIS 95973 (D MS, Nov. 17, 2008), a Mississippi federal magistrate judge recommended dismissal of claims by a Muslim inmate that he was not allowed to lead Muslim prayer services and was forced to pray behind another less knowledgeable prisoner, and that on two occasions he was prevented from praying in the law library.

In two opinions in Foster v. Ouachita Correctional Center, 2008 U.S. Dist. LEXIS 96513 (WD LA, Sept. 22, 2008) and 2008 U.S. Dist. LEXIS 96523 (WD LA, Oct. 30, 2008), a Louisiana federal magistrate judge recommended dismissing complaints by a Muslim prisoner that prison officials refused to "provide assistance" to Muslim inmates in their obligation to fast and read scripture during Ramadan; refused to set up a worship program for Muslims; and refused to furnish Muslims a non-pork diet. He also alleged that during Ramadan Muslims were required to attend Christian programs.

Indian Authorities Waive Autopsies On Chabad House Victims

India Express reports today on efforts to have the bodies of those brutally killed in the Chabad center in Mumbai returned to Israel for burial without autopsies being performed. Jewish law generally prohibits autopsies. The Israeli Consulate sent a request to Mumbai's Police Commissioner and to the Home Minister to hand over the bodies without autopsy so they can be buried according to Jewish law. DNA India reports that a letter from the Indian Ministry of External Affairs approving these arrangements arrived Saturday night.

Muslim-Christian Clashes In Nigerian City Following State Elections

BBC News today reports that in the Nigerian city of Jos, hundreds of people have been killed in clashes between Muslims and Christians. Jos is the capital of the state of Plateau. The violence followed state elections in which the Christian-backed People's Democratic Party won over the Muslim-backed All Nigeria People's Party. The results are being contested amid reports of election irregularities. Violence, including burning of homes, churches and mosques, began Thursday night. Plateau has a history of religious clashes between indigenous Christians and more recently arrived Hausa-speaking Muslims.

Nativity Scene To Go Up Without Opposition In Illinois Capitol Building

A press release issued yesterday by the Springfield Nativity Scene Committee (SNSC) reports that a privately funded Nativity Scene will be displayed starting next week until after Christmas in the East Hall of the Illinois state Capitol Building. The unveiling ceremony will include a prayer and Christmas carols. Choirs will perform near the display throughout the Christmas season. The Secretary of State's office approved the display, apparently on the theory that this area of the Capitol is a designated public forum open to all. Dan Zanoza, Chairman of the SNSC, said: "The Nativity Scene is primarily meant to honor the birth of Jesus Christ. We are also hoping to demonstrate that such expressions of religious faith in the public square are legal under both the U.S. and Illinois State Constitutions." In support of that position, he cited a 1989 federal district court decision that upheld a creche on Daley Plaza. (Grutzmacher v. Public Bldg. Com., 700 F. Supp. 1497 [LEXIS link]). The ACLU is not opposing the Capitol display, saying: "anybody can express their message there and frankly there is room in that space for lots of different messages." (Suburban Chicago Daily Herald, 11/18).

Louisiana Parish Repeals Fortune Telling Ban After Court Holds It Invalid

Last month in Gryphon's Nest Gifts, Inc. v. Parish of Livingston, (MD LA, Oct. 7, 2008), a Louisiana federal district court held unconstitutional an ordinance enacted by the Parish of Livingston that bans soothsaying, fortune telling, palm reading, clairvoyance, crystal ball gazing, mind reading, card reading "and the like" for a fee. The ordinance was challenged by a business that caters to the spiritual and educational needs of Wiccans and other pagans. After Hurricane Katrina it wished to move to Livingston Parish. The court held that the ordinance was an unconstitutional content-based prohibition of speech. It also found that the law was unconstitutionally vague. Now, according to a report in The Advocate earlier this week, on Monday, the Parish Council by a 7-1 vote, on advice of its attorney, decided to repeal the ordinance instead of appealing the case. (See prior related posting.) [Thanks to About.com's Paganism/Wicca blog for the lead.]

Court In Kashmir Says Hajj Travel Is Protected Fundamental Right

In Indian Kashmir, a High Court judge has ruled that the State Hajj Committee wrongly denied travel documents to ten individuals attempting to make the Hajj pilgrimage to Saudi Arabia this year. According to a report published yesterday by Greater Kashmir, a pilgrim pass was denied to 40 individuals, but only ten sued. The denials were based on reports of past arrests or of anti-national activities. The court said, however: "Haj for Muslim is an essential and integral part of the religion forming one of the five pillars of Islam. It can safely be concluded that withholding of the pilgrim pass ... amounts to infringement of fundamental right guaranteed under the Constitution of India...." Art. 25 of India's Constitution guarantees the right to freely practice one's religion. Even though the last flight to Jeddah left two days before the court's decision, the court ordered the government to arrange for plaintiffs' travel.

Tribal Lawsuit Raises Unusual Religious Liberty Question

In Havasupai Tribe v. Arizona Board of Regents, (AZ Ct. App., Nov. 28, 2008), an Arizona state appellate court decided a procedural issue in a case that raises a fascinating religious liberty question. The procedural issue was whether plaintiffs adequately complied with the notice of claims requirement in Arizona law that applies to suits filed against public entities or public employees. Focusing on that issue, in a 2-1 decision the court reversed the trial court's grant of summary judgment in favor of defendants.

Underlying the procedural wrangling is a claim by the Havasupai Indians and tribal members that blood samples given to Arizona State University researchers were used for purposes beyond those consented to. Researchers were to study whether genetics accounted for the large increase in diabetes among tribe members. However when that study was completed, the blood samples were also used to study the evolutionary genetics of the Havaupai, including theories regarding the ancient migration of populations across the Bering Strait from Asia to North America. That notion contradicts the Havasupai belief that, as a people, they originated in the Grand Canyon. Reporting on the case, yesterday's East Valley Tribune quotes plaintiff's attorney:

It's a life-altering event for each and every one of those tribal members that academic institutions and science is now telling these folks that their religion and their cultural beliefs are wrong.... They would have never opened themselves up to this type of scrutiny or challenge to their belief systems, not in a million years would they have done that, had they known that this was the true intent of Arizona State University and others.

The AP also reported on the decision yesterday.

Former Maldives President Suing For Defamation Over Comments On His Religious Beliefs

Miadhu News today reports from the Maldives on the ongoing civil defamation lawsuit brought by former Maldives President Maumoon Abdul Gayoom against Adhaalath Party. Gayoom says that Sheikh Husain Rasheed has publicly defamed him on several occasions by saying that he was a not a Muslim. (See prior posting.) The first hearing in the lawsuit was held yesterday at which Gayoom's attorneys presented his case.

UDATE: Minivan News reported on Jan. 8, 2009 that Gayoom's defamation suit has been withdrawn, with Gayoom saying it would be futile to pursue it once the election is over.

Kentucky's Homeland Security Law Requires Acknowledgement of God

Today's Lexington Herald-Leader reports on a little-noticed provision in Kentucky's law enacted in 2006 to create the state Office of Homeland Security. KY Code 39G.010 requires that the agency's executive director is to "publicize the findings of the General Assembly stressing the dependence on Almighty God as being vital to the security of the Commonwealth by including [specified findings] ... in its agency training and educational materials. The executive director shall also be responsible for prominently displaying a permanent plaque at the entrance to the state's Emergency Operations Center" with the same inscription on it. The required language is in KY Code 39A.285(3) :

The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God as set forth in the public speeches and proclamations of American Presidents, including Abraham Lincoln's historic March 30, 1863, Presidential Proclamation urging Americans to pray and fast during one of the most dangerous hours in American history, and the text of President John F. Kennedy's November 22, 1963, national security speech which concluded: "For as was written long ago: 'Except the Lord keep the city, the watchman waketh but in vain.' "

Current Kentucky Governor Steve Beshear's office was not aware of the provision until reporters asked about it. The required plaque is still up, but the statutory language is not in the Homeland Security office's current mission statement, nor is it on its website.

UPDATE: Bluegrass Politics reported on Monday that American Atheists and ten Kentuckians will file a federal court lawsuit on Tuesday seeking to eliminate references to God in the Homeland Security statute. The suit will also seek an award of damages.

Canadian Marriage Commissioner Sues Province Over Same-Sex Marriage Mandate

In Canada last May, the Saskatchewan Human Rights Tribunal held that government marriage commissioner Orville Nichols may not discriminate against same-sex couples in performing civil marriages. (See prior posting.) Not only is Nichols appealing the Tribunal's adverse decision but, according to the Regina Leader-Post, he also filed a separate suit last Monday against the government seeking to force a change in the rules that he says infringe his free exercise of religion. Saskatchewan Party Justice Minister Don Morgan said he would have preferred to grandfather in existing commissioners who had religious objections to performing same-sex marriages, but now that the Human Rights Tribunal has spoken the government must support its ruling. Morgan, however, has written all commissioners to tell them that they do have the option to surrender their civil marriage certificate and obtain only a certificate allowing them to perform religious marriages.

Kazakhstan's Parliament Passes Controversial Amendment To Religion Law

Kazakhstan's Parliament on Wednesday gave final approval to restrictive amendments to the country's Religion Law. The bill would also amend the Code of Administrative Offenses and certain other laws. The controversial bill now goes to President Nursultan Nazarbaev who must decide whether or not to sign it into law. A report by Forum 18 published on Wednesday describes the effect of the amendments:

[T]he Law would for the first time explicitly ban unregistered religious activity. It would also ban anyone from sharing their beliefs without both the written backing of a registered religious association and also personal state registration as a missionary. It would require permission from both parents for children to attend any religious event.

Small "religious groups" – the lowest level of registered community - would only be authorised to carry out religious activity with existing members and would not be allowed to maintain places of worship "open to a wide access". Nor would they be allowed to conduct missionary activity. Apart from a few personal items, all religious literature imported into the country would require approval through a "religious expert assessment".

Penalties for holding religious services, conducting charitable work, importing, publishing or distributing religious literature or building or opening places of worship in violation of "demands established in law" would be increased. Repeat "offences" – if the current draft is adopted – would lead to a religious community being banned.

Radio Free Europe points out that the passage of the bill by the Majilis-- the lower house of the country's legislature-- came only hours after government officials met with experts from the Organization for Security and Cooperation in Europe and agreed to allow OSCE to review the latest draft of the proposed law.

Netherlands Will Extend Proposed Burka Ban To Higher Education

In the Netherlands, Education Minister Ronald Plasterk has told Parliament that a planned law to ban wearing of the burka and niqab in elementary and secondary schools (see prior posting) will be extended to institutions of higher education as well. These are garments that cover the body and the face which are worn by Muslim women. According to a report from AFP on Wednesday, the step was taken because of pressure from a majority in Parliament even though the original justification for the ban was that children needed to be able to see the other person's face in order to learn proper communication. The ban would apply to students, faculty, parents and custodial workers. An Education Ministry spokesman said the law would affect only a handful of people in higher education in the country, and that since it was not the ministry's idea, it could not explain the reasoning behind the extension of the ban.

Brooklyn Chabad Rabbi and Wife Among Hostages Held In Mumbai; Update-- Reported Killed

One of the ten sites attacked by terrorists in Mumbai (India) yesterday and today is Nariman House which houses Mumbai's Chabad Lubavitch headquarters. (Scotsman). BBC News reports that Chabad's main emissary in the city, Rabbi Gavriel Noach Holtzberg, is being held hostage in the building which is now surrounded by police. NY1 News says Holtzberg is from Brooklyn, NY. WLS-TV Chicago says that Rabbi Holtzberg is a U.S. citizen and his wife Rivka is an Israeli. (Photo of rabbi and his wife.) The New York Times on Thursday posted an article describing the Chabad House operated by the Holtzbergs as a magnet for Jewish tourists and business men visiting Mumbai, as well as for Iraqi and Indian Jews living there. The article goes on to describe the reaction to Mumbai events in Crown Heights, Brooklyn where Chabad is headquartered and where Rabbi Holtzberg grew up. The Wall Street Journal, however, says that the Chabad center in Mumbai was not widely known, so the terrorists who seized it must have been familiar with the area.

Arutz Sheva reports that Rabbi Holtzberg and his wife are unconscious in Nariman House, as are several other Israelis held in the building. The Guardian reports that Holtzberg's 2-year old son was gotten out of the building by a woman who works as a cook at the Chabad center. The Jerusalem Post reports that 8 people were freed from Chabad House on Thursday evening (Indian time) in a commando operation. The identity of those freed is unclear.

Despite reports in the U.S. and British media that the terrorists were looking primarily for those with U.S. and British passports, Haaretz reports 20 to 30 Israelis are among the dozens of hostages held at the Trident-Oberoi hotel. IANS reported Thursday afternoon (U.S. time) that Israel is preparing to send paramedic and rescue personnel to Mumbai to help in the release of Rabbi Holtzberg and seven others being held at the Nariman House Chabad headquarters. On Thursday night (US time), BBC News reported that Indian security forces had begun an attack on Nariman House to capture or kill the gunmen inside and free the hostages.

On Friday morning (US time), Haaretz was reporting that the bodies of 5 hostages were found inside Nariman House and that the two terrorists there were also killed. The identity of the deceased hostages is not yet clear. Arutz Sheva reports that the dead-- murdered by their captors-- include Rabbi Holtzberg, his wife Rivka, and two women who had been trapped with them. London's Evening Standard confirms this and says that there is uncertainty about the fate of 4 other that were being held there. [Ths posting is being updated on a rolling basis. Last updated 9:55 am EST, 11/28]

Indiana Rescinds Rule Barring Vanity Plates Mentioning God

The Indiana Bureau of Motor Vehicles has decided to rescind a rule that took effect earlier this month banning the issue of vanity license plates that refer to race, religion, deity, ethnicity, gender, sexual orientation or political party or affiliation. According to an AP report yesterday, the BMV will go back to its former policy of deciding on a case-by-case basis whether a requested personalized plate "carries a connotation offensive to good taste and decency or would be misleading." BMV Commissioner Ron Stiver says a letter will be sent to some 60 applicants whose plate applications were rejected because the requested combination of numbers and letters mention God. They will now get a chance to reapply for 2009 plates. A number of these applicants are like Max and Peggy Hatfield who missed the automatic renewal date for their existing plates, and were then refused plates reading "God Can." (See prior related posting.)

City Sued For Encouraging Removal of Billboard Promoting Atheism

The Freedom from Religion Foundation (FFRF) filed suit in a California federal district court yesterday against the city of Rancho Cucamonga (CA). The complaint (full text) alleges that the city violated the Establishment Clause and free speech guaranties when its actions led a sign company to remove a billboard ad that had been paid for by FFRF. The city passed on to the sign company a number of complaints from the public about the billboard that read "Imagine No Religion." (See prior posting.) The complaint argues that city, by its actions, gave the appearance of endorsing religion and interfered with speech on the basis of its content. FFRF issued a release yesterday announcing the filing of the lawsuit, and yesterday's Contra Costa Times reports on the suit.

2nd Circuit Says Village Is Bound By Its Zoning Case Settlement

In Congregation Mischknois Lavier Yakov, Inc. v. Board of Trustees for the Village of Airmont, New York, (2d Cir., Nov. 26, 2008), the U.S. 2nd Circuit Court of Appeals rejected an attempt by the the village of Airmont (NY) to back out of a 2005 zoning settlement it had agreed to, and which had been embodied in a federal district court order. At issue is the agreement to allow the building of a yeshiva (Jewish religious school), along with a dormitory for 170 students and 30 apartments. The village argued that the settlement was void as contrary to state law since it did not permit local residents to participate in decisions regarding the zoning variance. The court concluded that the village's due process rights had not been violated by the settlement. Today's Lower Hudson Valley Journal News reports on the decision.

Malaysia's Anti-Yoga Fatwa Raises Controversy Over Jurisdiction

A controversial ruling issued last week by Malaysia's National Fatwa Council is now creating a jurisdictional controversy in the country. Yesterday's Red Orbit and today's Malaysian Insider report on developments. The focus is a ruling telling Muslims to stop practicing yoga, out of fear that it could lead them to deviate from Islamic teachings. (See prior posting.) However, Malaysia's Prime Minister Datuk Seri Abdullah Badawi stepped in and told his countrymen that they could continue the popular practice, so long as they did not accompany yoga exercises with Hindu mantras. This, in turn, however led to objections from Sultans in various Malaysian states that it is the Sultans and the King that are in charge of religious affairs in the country, not the Prime Minister.

The Sultans in an unusual move though also criticized the Fatwa Council, saying that any fatwa on public matters should be brought to the Conference of Rulers before being issued. Brunei News yesterday interviewed Malaysian constitutional law expert Prof. Shad Saleem Faruqi who said that the Conference of Rulers has the right to discus any issue of national policy, but that it is not required to vet every fatwa.

The fatwa on yoga follows another controversial one barring Muslim women from wearing trousers on the theory that they might become sexually active "tomboys". Rulings by the National Fatwa Council are only advisory until they are published in the official gazette for each state. Only then do they become binding law. So far the fatwa on yoga has not been gazetted anywhere.

President's Thanksgiving Proclamation and Thoughts On It

Last week, President Bush issued the Thanksgiving Day 2008 Proclamation, declaring today to be a National Day of Thanksgiving. The Proclamation begins:

Thanksgiving is a time for families and friends to gather together and express gratitude for all that we have been given, the freedoms we enjoy, and the loved ones who enrich our lives. We recognize that all of these blessings, and life itself, come not from the hand of man but from Almighty God.

Author Susan Jacoby comments on the Proclamation in a posting at Newsweek titled Thanksgiving Proclamations: Cracks In The Wall Of Separation. Meanwhile, taking a somewhat different tack, The Becket Fund republished an op-ed written 11 years ago by Seamus Hasson titled Forgetting the Holy: The Feast of the Intransitive Verb. It suggests that by referring to the day as a time "to give thanks", we avoid focusing on who we are thanking.

Obama, Thanksgiving, and Church

ABC News reports that President-elect Barack Obama, along with his wife Michelle and their two daughters, spent an hour on the day before Thanksgiving handing out bags of food to the needy at Chicago's St. Columbanus Catholic Church. This is Obama's third year of volunteering before Thanksgiving at a local food bank.

Meanwhile earlier this week, Politico reported that on the three Sundays since the election, Obama has not attended church services. Instead he has used his Sundays to work out at a Chicago gym. An Obama aide say that the Obamas have been concerned about the disruption that their visit would cause, as well as possibly unwanted attention for a church not used to Presidential visits. The aide said that the Obamas "look forward to finding a church community in Washington, D.C." The Obamas, of course, resigned from the large Trinity United Church of Christ in Chicago in May in a dispute over views of its controversial pastor Jeremiah Wright. (See prior posting.)

Florida Trial Court Overturns Gay Adoption Ban; Rejects Religious Objections

In In re Adoption of John Doe and James Doe, (Miami-Dade FL Cir. Ct., Nov. 25, 2008), a Florida state trial court held that a Florida statute barring "any person [who] is a homosexual" from adopting children (FL Stat. 63.042(3)) violates "equal protection rights guaranteed by Article I, § 2 of the Florida Constitution without satisfying a rational basis. Moreover, the statutory exclusion defeats a child’s right to permanency as provided by federal and state law pursuant to the Adoption and Safe Families Act of 1997." In its 53-page decision, the court approved the adoption of two young boys by Frank Martin Gill. He and his partner have been caring for them as foster parents since late 2004.

As emphasized in a report by Florida Baptist Witness, the court discredited much of the psychological testimony of the two experts for the state because of its religious underpinnings. Assessing the testimony of Dr. George Reker, a psychologist and Baptist minister, the court said: "Dr. Rekers' beliefs are motivated by his strong ideological and theological convictions that are not consistent with the science. Based on his testimony and demeanor at trial, the court can not consider his testimony to be credible nor worthy of forming the basis of public policy." Another witness for the state, Kansas State University Professor Dr. Walter Schumm, wrote in an article that: "I have been trying to use statistics to highlight the truth of the Scripture." The court says Schumm argues that his work, mostly unpublished, "should be accepted over the analyses of well respected researchers in peer reviewed journals."

The ACLU of Florida has links on its website to extensive information about the case, including the full transcript of the trial. Yesterday's Florida Sun-Sentinel also reports on the case.

6th Circuit Denies Summary Judgment In Establishment Challenge To School Outsourcing

Tennessee Code 49-6-3402 requires local boards of education to create alternative schools for students in grades 7-12 who have been suspended of expelled. Tennessee's Jefferson County School Board, for budgetary reasons, eliminated its separate alternative school program and instead contracted with Kingswood Academy to provide alternative services for public school students. Kingswood was already running a residential program for troubled children that included Christian religious training. In Smith v. Jefferson County School Board of Commissioners, (6th Cir., Nov. 24, 2008), the former principal and two former teachers from Jefferson County's former separate program challenged this arrangement on federal and state Establishment Clause grounds, as well as on other grounds.

In a 2-1 decision, the U.S. 6th Circuit Court of Appeals held that all of the plaintiffs have individual standing to bring the federal Establishment Clause claim and two of the three have municipal taxpayer standing. On the merits, it refused to grant defendants summary judgment, concluding:

Although the stated secular purpose of the Board—affording an education to alternative school students in the public-school system by sending them to the private Kingswood School in order to help resolve a budget crisis—arguably predominates over any inclination of the Board to advance religion, if the day program was infused with the same focus on Christianity as the residential program, a reasonable person could conclude that the Board was endorsing religion by delegating all of its duties to Kingswood.

Judge Rogers dissenting argued that plaintiffs lack standing to pursue their Establishment Clause claim.

Defining Unborn Child as "Person" In Murder Law Upheld

In Eguia v. State of Texas, (TX Ct. App., Nov. 20, 2008), a Texas appellate court upheld appellant's conviction for murdering a woman and her unborn child. The court rejected appellant's constitutional challenge to the Texas statute that defines an unborn child as a "person" for purposes of the capital murder statute. (TX Penal Code 1.07(a)(26)). Jacob Eguia contended that this definition violates the Establishment Clause of the U.S. Constitution and Art. I, Sec. 6 of the Texas Constitution that bars giving preference by law to any religion. Holding that "a statute is not automatically rendered unconstitutional simply because it advances ideals that harmonize with religious ideals," the court found that the statute meets the Lemon test. It concluded that "the State has a legitimate secular interest in protecting mothers and their unborn children throughout the mother’s pregnancy

5th Circuit Remands Invalidation of Disturbing-The-Peace Ordinance

In Netherland v. Eubanks, (5th Cir., Nov. 25 2008), the U.S. 5th Circuit Court of Appeals vacated a preliminary injunction that had been issued by a Louisiana federal district court against the City of Zachary, Louisiana. John Netherland, a Christian who was preaching loudly near the Sidelines Grill, was threatened by police with arrest for disturbing the peace if he did not stop. The district court held that the disturbing the peace ordinance was unconstitutionally overbroad on its face. (See prior posting.) The Court of Appeals, however, remanded the case for the court to determine whether a narrowing construction of the disturbing-the-peace ordinance was available. The AP yesterday reported on the decision.

En Banc Review Sought In 7th Circuit License Plate Case

The Thomas More Society yesterday filed a petition for en banc review of the 7th Circuit's opinion in Choose Life Illinois, Inc. v. White. (See prior posting.) In the case, a 3-judge panel of the federal 7th Circuit held that there was no First Amendment violation when the state of Illinois decided to exclude the subject of abortion from its specialty-plate program. Implementing this policy, the state refused a request to issue a special "Choose Life" license plate. Reporting on the petition, LifeNews said that plaintiffs will seek Supreme Court review if en banc review is denied. [Thanks to Melissa Harman for the lead.]

Australia Seeks Public Comment on Report on Religious Freedom

Christian Today carries an article about the Australian Human Rights Commission discussion paper titled Freedom of Religion and Belief in the 21st Century. The paper, issued in September, is open for comment until January 31, 2009. According to the Commission's website, the project is designed to obtain input from faith communities and others in an effort "to build a more socially cohesive and harmonious society that protects and promotes Article 18 of the Universal Declaration of Human Rights (UDHR) and Article 18 of the International Covenant on Civil and Political Rights (ICCPR)." A series of supplementary papers will also be released for comment. The first of these, titled How Does Freedom of Religion and Belief Affect Health and Wellbeing?, is already available. Additional supplementary papers will deal with religion and the arts; the law, judiciary and religion; the media, journalism and freedom of religion and belief; indigenous spiritual expression and freedom of religion and belief; education and religion; the intersection of freedom of religion and gender equality; and religion freedom and expression and radicalisation.

More Developments In Texas Cases Against FLDS Church Members

Yesterday's Deseret News reports on two developments in the ongoing confrontations between the state of Texas and the polygamous Fundamentalist Latter Day Saints church. In a court hearing in San Angelo (TX), a 17-year old girl, a member of FLDS, who had been temporarily held in foster care by the state refused to reveal the whereabouts of her infant. According to the article, the court wants to collect a DNA sample from the baby in order to determine whether the mother was married off to an adult. Under Texas law, a minor under 17 generally cannot legally consent to sex with an adult.

In a second development, three FLDS members have surrendered to authorities after a grand jury earlier this month indicted them on charges relating to plural marriages at the YFZ Ranch that was raided by the state earlier this year. 72-year old Fredrick Merril Jessop allegedly conducted an unlawful marriage ceremony between his 12-year old daughter and FLDS leader Warren Jeffs. Wendell Loy Nielsen, 68, was indicted on three charges of bigamy. Leroy Johnson Steed, 42, was indicted for sexual assault of a child, bigamy and tampering with physical evidence.

Texas Judge Allows Defamation Suit Against Pastor and His Church To Proceed

In San Antonio, Texas yesterday, a state trial court judge refused to dismiss a defamation lawsuit against Summit Christian Center and its pastor Rick Godwin. Former church member Larry Nail claims in the suit that the pastor defamed him from the pulpit by accusing him of bribery after Nail attempted to expose the pastor's spending of church funds. Defendants had argued that the lawsuit involves an internal church religious dispute that is beyond the jurisdiction of civil courts, saying the pastor was relying on Biblical authority to discipline Nail for being spiritually divisive. Today's San Antonio Express-News reports that District Judge Barbara Hanson Nellermoe made the ruling after hearing more than two days of testimony.

Shoshone Tribe Sues To Stop Development of Nevada Gold Mine

Last Thursday, three Shoshone Indian tribal groups and two environmental organizations filed suit in a Nevada federal district court to stop development of a large open-pit gold mine on Mt. Tenabo. Yesterday's Environment News Service reports that the Bureau of Land Management approved the $500 million Cortez Hills Expansion Project after years of Shoshone opposition. (Full text of BLM environmental impact statement).The lawsuit alleges that the project will destroy land "well-known for its spiritual and cultural importance to the Western Shoshone" and "home to local Shoshone creation stories, spirit life, medicinal, food and ceremonial plants and items." Plaintiffs say the land "continues to be used to this day by Shoshone for spiritual and cultural practices." Some Western Shoshone communities however support the project, having entered a collaborative agreement with mine developers who will set up a Western Shoshone Educational Legacy Fund tied to revenue from the mine.

Two On Obama's Economic Team Have Worked On Religious Liberty Issues

Ahead of his news conference yesterday, President-elect Barack Obama announced his choice for five key economic posts in the federal government. (Wall Street Journal). In a release yesterday, the Orthodox Jewish Union reports that two of these appointees also have made significant contributions in the field of religious liberty. Melody Barnes, picked as director of the White House Domestic Policy Council, served on the staff of Senator Ted Kennedy from 1995-2003. There she worked on important religious freedom initiatives, including the Religious Land Use and Institutionalized Persons Act. Heather Higginbottom, chosen as deputy director of the White House Domestic Policy Council, served as Senator John Kerry’s Legislative Director from 1999 to 2007. In that position she sought to obtain support in Congress for the Workplace Religious Freedom Act.

6th Circuit Allows Some Sex-Abuse Claims Against Vatican To Proceed Under FSIA

In O'Bryan v. Holy See, (6th Cir., Nov. 24, 2008), the U.S. 6th Circuit Court of Appeals affirmed a district court decision dismissing certain claims against the Vatican in a clergy sex-abuse case, but permitting other claims to proceed under the Foreign Sovereign Immunities Act (FSIA). At the heart of the claims against the Vatican were allegations that, through a 1962 directive, it implemented a policy to keep allegations of childhood sexual abuse by priests secret. Finding that the Holy See is a foreign state under FSIA, the court held that plaintiffs had waived any Establishment Clause challenge to applying FSIA to the Vatican. Under FSIA, federal courts have jurisdiction only if one of the statute's exceptions to sovereign immunity apply. The court rejected arguments that the commercial activity exception or the tortious act exception subjected the Holy See to suit in U.S. courts. However the court went on to hold that the tortious act exception did allow claims against the Holy See arising out of conduct of Holy See employees in the United States engaged in the supervision of allegedly abusive priests, including clergy failure to warn parents or report perpetrators. AP reported on the decision yesterday.

UPDATE: Also reporting on the decision, yesterday's Wall Street Journal says that attorneys for the Vatican are not "presently inclined" to seek Supreme Court review. The Wall Street Journal has also posted the full text of the once-confidential 1962 directive on how Diocesan officials should proceed "in cases of solicitation".

Vietnam Ends Attempt To Control Catholics; Recognizes Mennonites

The press this week reported on two significant developments out of Vietnam. According to Asia News , the government's attempt to follow China's lead and create create a Catholic Church controlled by the Communist Party instead of the Pope has failed. Meanwhile Ekklesia reports that the Vietnam National Religious Affairs Committee has given full legal recognition to the Vietnam Mennonite Church which held its first official General Assembly on Nov. 15-17.

Holy Land Foundation Leaders Convicted In Their Retrial

Yesterday, according to the New York Times, federal prosecutors in Dallas, Texas obtained convictions against five leaders of a Muslim charity for funneling donations to the terrorist group Hamas. Last October, a mistrial on most charges occurred in the trial of leaders of the Holy Land Foundation for Relief and Development. (See prior posting.) But on this retrial, the jury found the defendants guilty on 108 counts of supporting terrorism, money laundering and tax fraud. Defendants plan an appeal. Before the U.S. closed it down in 2001, the Holy Land Foundation was the largest Islamic charity in the United States.

UPDATE: A Nov. 25 New York Times article reports on the reaction of the American Muslim community to the convictions-- the community is divided over the case.

U.N.'s 3rd Committee Approves Resolution on Combatting Defamation of Religions

Yesterday the United Nations General Assembly's Third Committee (which focuses on social humanitarian and cultural issues) adopted a controversial resolution urging countries to combat the defamation of religion. Canwest News Service reports that the resolution passed 85-50, with 42 abstentions. The 6-page Resolution (full text in Word doc.) includes a call for "all States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general...." Similar resolutions have been put forward in other U.N. venues as part of a campaign by the Organization of the Islamic Conference. (See prior posting.) Canwest says that "While this year's draft is less Islam-centric that resolutions of earlier years, analysts note it is more emphatic in linking religion defamation and incitement to violence."

The American Jewish Committee, in a release yesterday, said that the resolution, sponsored by Belarus, Uganda, and Venezuela, "stifles valid scrutiny of radical Islam and condones intimidation as a response to insensitive speech." Scoop News says that this year's vote in favor of the resolution reflected a decline in support, stemming from efforts by groups such as the Becket Fund for Religious Liberty and UN Watch to muster opposition the measure.

Spanish Court Says Schools Must Remove Crucifixes

For the first time, a judge in Spain has ordered a public school to remove crucifixes from the walls of its classrooms and public spaces. Today's Edmonton (Vancouver) Journal reports that the ruling came in the city of Valladolid in a case in which a parent and a secular organization claimed that schools were violating the constitutional guarantee of church-state separation. Art. 16 of Spain's Constitution provides: "No religion shall have a state character. The public powers shall take into account the religious beliefs of Spanish society and maintain the appropriate relations of cooperation, with the Catholic Church and other denominations." The court held that "The presence of these symbols in areas ... where minors are being educated can promote the idea that the state is closer" to Roman Catholicism than other religions.

British Airways Employee Loses Appeal In Religious Jewelry Case

In Eweida v. British Airways PLC [Word doc.], (Empl. App. Trib., Nov. 20, 2008), Britain's Employment Appeal Tribunal held that British Airways had not engaged in "indirect discrimination" in insisting that a cross worn on a necklace by check-in clerk Nadia Eweida be concealed by her uniform. Only the holding below relating to indirect discrimination was appealed. BA's policy, which applied to all jewelry including religious items, had an exception if wearing the item was a "mandatory" scriptural requirement and it could not be concealed under the uniform. Ultimately Eweida returned to work after BA amended its policy.

Wearing the cross was not a tenet of Eweida's Christian faith, but instead was a personal expression of belief. The Tribunal found that there was not evidence that BA's policy had a disparate impact on Christians, or a group of Christians, "because there was no evidence that a sufficient number of persons other than the claimant shared her strong religious view that she should be allowed visibly to wear the cross." Personnel Today reports on the decision. (See prior related posting).

Wisconsin Town Repeals Ordinance Out of Concern For Amish Buggies

Loyal, Wisconsin City Council last week repealed an ordinance that it had passed just a month earlier, out of concern that the law would discourage local Amish residents from visiting the city in their horse-drawn buggies. The ordinance would have required horses within city limits to wear manure-catching devices. According to last Friday's Salt Lake Tribune, Amish were afraid that the required bags would make their hoses skittish. After enacting the repeal by a vote of 7-1, City Council went on by a vote of 5-3 to require that horse-drawn vehicles use only a prescribed route through town.

Muslim Prisoners In British Facility Force Conversion on Fellow Inmates

London's Sunday Express reported yesterday that in Cambridgeshire's top security Whitemoor prison, Muslim inmates have launched a "reign of terror", forcing other prisoners to convert to Islam or face beatings or worse. The Prison Officers' Association has been calling for dispersal of the 100 Muslim prisoners in Whitemoor elsewhere in order to break up the gang violence.

UPDATE: The Nov. 28 Muslim News reports that an inspection of Whitemoor prison last month by the Chief Inspector of Prisons found that "the Prison Service as a whole needs to equip staff better to deal with the growing number of Muslim prisoners." However the report gave high marks to Whitemoor's religious program for its Muslim inmates.

Parents Must Move From Alamo Church Compound To Regain Custody of Girls

As previously reported, in September after federal authorities raided the compound of Tony Alamo Ministries, Arkansas officials took six minor girls into temporary custody. According to yesterday's Arkansas Democrat Gazette, a hearing was held last Friday on the status of two of those girls. Miller County Circuit Judge Jim Hudson, following recommendations of the state Department of Human Services, ruled that the girls can be returned to their parents only if the parents move off property controlled by Tony Alamo Christian Ministries. The family must also establish financial independence from the church. However, the parents can continue to attend church services. On Saturday, the judge said he would be willing to consider other plans proposed by the parents to protect the girls without moving. State authorities objected to the girls living in the same house with Alamo and several of his wives. Also the girls had not received childhood vaccinations, and were not being educated by state-certified teachers or in a registered home-school program.

Meanwhile, hearings are scheduled today in Miller County, Arkansas Circuit Court for 20 additional children who were removed last week from parents who attend the Tony Alamo Christian Ministries. (Arkansas Online.)

Recent Articles and Books of Interest

SSRN:

• Sylvie Bacquet, School Uniforms, Religious Symbols and The Human Rights Act 1998: The 'Purity Ring' Case, (Education Law Journal, 2008).
• Ehsan Zar Rokh & M. Rahman Gaeini, Iranian Legal System and Human Rights Protection,(November 20, 2008).
• Jack Lee Sammons, A Rhetorician's View of Religious Speech in Civic Argument, (Seattle University Law Review, Vol. 32, p. 367, 2008).
• Andrew F. March, Reading Tariq Ramadan: Political Liberalism, Islam, and 'Overlapping Consensus', (Ethics & International Affairs, Vol. 21, No. 4, pp. 399-413, Winter 2007).
• Richard W. Garnett, 'Excluding Religion': A Response, (University of Pennsylvania Law Review PENNUMBRA, Forthcoming).
• Robert K. Vischer, The Best Interests of the Child: Modern Lessons from the Christian Traditions, (THE VOCATION OF THE CHILD, P. Brennan, ed., Eerdmans, 2008; U of St. Thomas Legal Studies Research Paper No. 08-34).

SmartCILP and Other:

• Thomas M. Messner, Same-Sex Marriage and the Threat to Religious Liberty, (Backgrounder, Oct. 30, 2008).
• Jennifer E. Spreng, Conscientious Objectors Behind the Counter: Statutory Defenses to Tort Liability for Failure to Dispense Contraceptives, 1 St. Louis University Journal of Health Law & Policy 337-403 (2008).
• Geoffrey R. Stone, Melville B. Nimmer Memorial Lecture. The World of the Framers: A Christian Nation?, 56 UCLA Law Review 1-26 (2008).
• Roy Whitehead, Jr., Walter Block & Patrick C. Tinsley, Christian Landlords and the Free Exercise Clause: An Economic and Philosophical Analysis of Discrimination, 33 Oklahoma City University Law Review 115-150 (2008).

New Books:

• Kent Greenawalt, Religion and the Constitution: Volume 2: Establishment and Fairness, (Princeton Univ. Press, Nov. 2008).
• David Novak, In Defense of Religious Liberty, (ISI Books, Jan. 2009).
• Peter A. Lilliback, Wall of Misconception, (Providence Forum Press, 2008).
• Stephen Miller, The Peculiar Life of Sundays, (Harvard Univ. Press, Nov. 2008), reviewed in the Toronto Star.

African-American Muslims In U.S. Reject al Qaeda Statement

On Friday, according to CNN, leaders of New York's African-American Muslim community issued a statement denouncing recorded comments from al Qaeda's second-in-command Ayman al-Zawahiri. The Zawahiri video tape, released on the Internet last Wednesday (Washington Post), denounced President-elect Barack Obama. It said that Obama represents the "direct opposite of honorable black Americans" like Malcolm X. In a statement read during a news conference at the Malcolm X and Dr. Betty Shabazz Memorial, Educational and Cultural Center, the African-American Muslim leaders said: "We find it insulting when anyone speaks for our community instead of giving us the dignity and the honor of speaking for ourselves." The Council on American-Islamic Relations also condemned Zawahiri's statements.

Recent Prisoner Free Exercise Cases

In Tapp v. Stanley, 2008 U.S. Dist. LEXIS 93122 (WD NY, Nov. 17, 2008), a New York federal district court rejected an inmate's free exercise and RLUIPA claims arising out of a nearly 4-month delay in furnishing him kosher food while his request for it, and his religious designation form, were being processed. A separate claim regarding inability of non-Christians to participate in the Angel Tree program was dismissed for failure to exhaust administrative remedies.

In Foster v. Ouachita Correctional Center, 2008 U.S. Dist. LEXIS 92914 (WD LA, Nov. 14, 2008), a Louisiana federal district court allowed an inmate to proceed with his claim that authorities violated his rights under the 1st Amendment and RLUIPA by not allowing him to participate in weekly worship services, not permitting him to fast during Ramadan, and not furnishing him a pork-free diet. Two other claims were dismissed as frivolous.

In Furnace v. Sullivan, 2008 U.S. Dist. LEXIS 93464 (ND CA, Nov. 10, 2008), a California federal district court rejected a claim by an inmate (a practitioner of the African religion of "Shetaut Neter") that his rights under the 1st Amendment and RLUIPA were violated when on one morning he was refused his vegetarian food tray in an incident that led to his being assaulted with pepper spray. However plaintiff was permitted to proceed with claims alleging excessive force and equal protection violations, and allowed him to amend his complaint to allege that he has exhausted administrative remedies as to his state law claims involving free exercise and equal protection violations.

In Richard v. Border, 2008 U.S. Dist. LEXIS 93519 (D OR, Nov. 17, 2008), an Oregon federal district court rejected plaintiff's claim that his 1st Amendment rights were violated by requiring him to live at the Eugene Mission, which requires attendance at a church service, as a condition of his post-prison supervision. The court found that plaintiff had requested to live at Eugene Mission and never proposed an alternative living arrangement after his objections arose.

In Boretsky v. Corzine, 2008 U.S. Dist. LEXIS 94583 (D NJ, Nov. 20, 2008), a New Jersey federal district court permitted an inmate to move ahead with his claims that his free exercise and due process rights, and his rights under RLUIPA, were violated when his placement in isolation deprived him of his ability to participate in religious activities.

City Asks For Removal of Billboard With Anti-Religion Message

The San Francisco Chronicle reported Friday that the city of Rancho Cucamonga, CA, after receiving numerous complaints, asked the General Outdoor advertising company to take down a billboard carrying a message from the Freedom from Religion Foundation. The sign company complied, removing the "Imagine No Religion" billboard. FFRF says the city should not be censoring speech. This is not the first time the city has requested removal of a billboard seen as offensive to some. In September, it asked another company to take down a billboard advertising vagina rejuvenation. [Thanks to Scott Mange for the lead.]

ADL Covers A Range of Issues at Meeting Marking 95th Year

In a release issued Friday, the Anti-Defamation League summarized the proceedings of its annual meeting held earlier this month in Los Angeles. The ADL marks its 95th birthday this year. In the keynote address, ADL director Abraham Foxman reported that in the wake of the country's financial crisis, anti-Semitic conspiracy theories are spreading on the Internet. Separately, the ADL released a new poll showing that a majority of Americans believe that religious values are under attack in the U.S., but there has been a decline in concern about racial tensions. Finally the ADL adopted a resolution on religious accommodation in the workplace, favoring it if it does not infringe others' rights or create undue employer burdens. The resolution opposed "policies or laws that permit a pharmacist to interfere with the physician-patient relationship by refusing to fill prescriptions without simultaneously offering a referral source to the patient so that his or her medication can be promptly and timely obtained..." Also it opposed excusing government officials, in states where same-sex marriage is legal, from issuing licenses or performing civil ceremonies unless there is immediate access to another employee who will do so.

Conviction For Interfering With Business Does Not Violate Free Exercise Rights

In Sherman v. Yolo County, 2008 U.S. Dist. LEXIS 92800 (ED CA, Nov. 6, 2008), a California federal district court rejected a habeas challenge by a defendant, now in prison, who was convicted of intentionally interfering with a lawful business by obstructing customers (CA Penal Code 602.1). Joseph Sherman was aggressively preaching and handing out Bible materials to people entering and leaving Longs Drugs in Davis (CA). He became hostile when asked to leave. The court rejected Sherman's claim that his 1st Amendment speech and free exercise rights were violated. It found that the state statute under which Sherman was convicted is a rationally-based neutral law of general applicability.

In Malaysia, Parties Seeking Federal Court Ruling In Catholic Paper Case

As previously reported, in Malaysia the Catholic newspaper The Herald has filed suit in the High Court in Kuala Lumpur to challenge the Home Ministry's decision banning the paper from using the term "Allah" as a synonym for God in its Malay-language reporting. Now, according to yesterday's New Straits Times, several state religious councils have obtained a stay a stay of proceedings until Feb. 27 from the court so the parties can ask the Federal Court for a ruling on the constitutionality of various laws involved in the case. Meanwhile, the Malaysian Gurdwaras Council will ask the Attorney-General to avoid a confrontation in the case.

In Nigeria, Children Accused by Churches of Being Witches Are Tortured By Their Families

Saturday's Lagos Guardian reports that in parts of the Nigerian states of Akwa Ibom and Cross River, there has been an alarming increase in the number of children who are suspected by their parents of being "witches" or "wizards." Many of them are abandoned, tortured or killed by their families after prophets from Pentecostal sects declare the children to possess strange powers. The craze seems to have been started in the late 1990's by Prophetess Helen Ukpabio, founder of the Liberty Gospel Church. Her home movies portrayed some children as possessing supernatural powers that they can use to bring misfortune to their families. The Child's Right Rehabilitation Network (CRARN) is providing shelter for over 150 of these abused children at its Children's Centre, and is working to get the parents who tortured or murdered children prosecuted.

A Review of Same-Sex Marriage Developments In Connecticut

In the widespread coverage of the battle over gay marriage in California, less attention has been given to a decision by the Connecticut Supreme Court last month holding that limiting same-sex couples to civil unions, instead of marriage, violates the equal protection guarantees of the Connecticut state Constitution. An article in this week’s Yale Herald titled Gay Couples Marry as Campus Christians Sit Silent is occasion to look more closely at developments in Connecticut.

In Kerrigan v. Commissioner of Public Health, (CT Sup Ct, Oct. 10, 2008) (majority, dissents 1, 2, 3), the court, in a 4-3 decision, applied intermediate scrutiny to strike down Connecticut's statutory scheme barring same-sex marriage. Opponents then supported a proposal that is automatically on the November ballot every 20 years to call a state constitutional convention. [corrected]. The convention could have potentially proposed a constitutional amendment to overturn the court's decision. However, that proposal was overwhelmingly defeated at the polls earlier this month.

Of particular interest is the analysis by the majority in the Kerrigan case concluding that sexual orientation is a quasi-suspect classification that triggers heightened scrutiny. One part of the test for a quasi-suspect class is its "political powerlessness." As the court explained:

a group satisfies the political powerlessness factor if it demonstrates that, because of the pervasive and sustained nature of the discrimination that its members have suffered, there is a risk that that discrimination will not be rectified, sooner rather than later, merely by resort to the democratic process.

Interestingly, the court then went on to, in part, rely on the strong religious opposition to homosexual activity as evidence of the political powerlessness of gays and lesbians. The court said:

Feelings and beliefs predicated on such profound religious and moral principles are likely to be enduring, and persons and groups adhering to those views undoubtedly will continue to exert influence over public policy makers.

The court then added in a footnote (fn. 37):

Of course we do not suggest that there is anything untoward or improper about such efforts to mold public policy or opinion, for such activity lies at the core of our democratic system. Nor do we equate religious beliefs with prejudice. Our point is simply that gay persons face steep, if not insurmountable, hurdles in changing or even modifying deeply held beliefs that their manner of sexual intimacy is morally unacceptable.

Britain's New Pension Authority Will Offer Sharia-Compliant Option

In 2006, Britain enacted legislation to reform its pension system. Among other things, the Pensions Act 2007 created the Personal Accounts Delivery Authority which will create new low cost pension savings vehicles for individuals. (Background.) The London Telegraph reported yesterday that the Authority will offer a Sharia-compliant pension fund as one of the options in order to encourage Muslim participation. Many Muslims who have low-paying jobs or who have recently moved to Britain are thought to have little saved for retirement so far. The Sharia-compliant fund would not invest in financial service firms, or in companies involved in gambling, liquor or pornography industries. Britain's Child Trust Fund already offers Sharia-compliant baby bonds.

Germany Will Not Attempt To Ban Scientology Now

The AP reports that Germany’s Interior Minister Wolfgang Schaeuble, as well as domestic intelligence authorities from Germany's 16 states, agreed Friday that they had insufficient evidence to open formal proceedings to ban the Church of Scientology. To open proceedings, authorities need evidence of unconstitutional activities. They had been monitoring Scientology-- which they consider a business that takes advantage of vulnerable individuals.-- to determine if it seeks to limit basic human rights such as equality and the right to develop one’s personality. Even though they are not proceeding with charges now, authorities will continue to monitor Scientology’s activities in Germany. (See prior related posting.)

Muslim Group Urges NYPD To Revise Its Assessment of Domestic Terror Threat

At a press conference held on Thursday, the New York Muslim American Civil Liberties Coalition released a report titled: Counterterrorism Policy: MACLC's Critique of the NYPD’s Report on Homegrown Radicalism. As reported by The American Muslim, the report calls on the New York Police Department to update its 2007 study, Radicalization in the West: Homegrown Radicalism. The MALC report's Preface summarizes the objections to the NYPD study:

The NYPD Report calls into question the loyalties and motivations of law-abiding and mainstream Muslims in a deeply offensive way and paints them as potential threats to national security without substantiated evidence. Furthermore, it erroneously associates religious precepts with violence and terror, irrespective of First Amendment and Equal Protection rights. As such, MACLC has found that the NYPD Report neither protects American Muslims from undeserved scrutiny and profiling nor strengthens domestic security discourse.

Hezbollah In Lebanon Harnessing Religion of Youth For Its Political Agenda

Today's New York Times carries a long investigative article starting on its front page titled Hezbollah Seeks to Marshal the Piety of the Young. It says in part:

At a time of religious revival across the Islamic world, intense piety among the young is nothing unusual. But in Lebanon, Hezbollah — the name means the party of God — has marshaled these ambient energies for a highly political project: educating a younger generation to continue its military struggle against Israel. Hezbollah’s battlefield resilience has made it a model for other militant groups across the Middle East, including Hamas. And that success is due, in no small measure, to the party’s extraordinarily comprehensive array of religion-themed youth and recruitment programs.

County Council Member Objects To Rezoning Because of Opposition To Church Policy

Catholic News Agency reports today that Beaufort County, South Carolina Councilwoman Laura Von Harten has apologized for controversial remarks she made at a Council committee meeting last Monday. The Beaufort (SC) Gazette reported on Tuesday that the county's Land Management Committee, on which Von Harten does not sit, approved rezoning for expansion of St. Gregory the Great Catholic Church by a vote of 5-2. During discussion at the Committee meeting, however, Van Harten spoke to say she would not support the rezoning when it comes up for a full Council vote because of "human rights issues." She said that Catholic Church policies are an "affront to my dignity and all of womankind." She especially objected to the Church's ban on female clergy and her dislike of the way the Church wishes to "control women's uteruses." She said: "I don't want to support anything that will perpetuate that kind of ideology."

Apologizing on Tuesday, Von Harten said that her human rights concerns relate to "the Catholic Church as a political entity, with a seat at the United Nations, but I acknowledge that I offended individuals in my own community." She added: "Please be assured that I have been reminded of the importance of separation of church and state in matters of land use, and have learned a great deal from this incident." She now says she will abstain from voting on the St. Gregory zoning issue when it reaches Council.

PA School Board Says Teachers Can Be At "Pole" Event With A Disclaimer

Pennsylvania's Carlisle Area School Board, responding to the threat of a lawsuit, voted 8-1 yesterday to allow teachers to attend this year's student-led "See You At the Pole" event. At the annual event, held around the nation, students gather before school at the flag pole to pray for their school, fellow-students, teachers and nation. According to today's Harrisburg (PA) Patriot-News, teachers attending will be required to make clear that they are there in their individual capacities and not as school employees. One of 49 parents who signed a letter opposing teacher attendance testified at the board meeting: "It defies logic that students should believe that a teacher should issue a disclaimer, that for a few moments they are peers under a flag pole, 40 yards from the school." (See prior related posting.)

Bangladesh Elections Threaten To Disenfranchise Muslims On Hajj

Wednesday's Daily Star reports on an election controversy in Bangladesh. Parliamentary elections are scheduled for December 18. This however is during the Hajj, and over 48,000 Bangladeshis who will be in Saudi Arabia for the religious pilgrimage will be disenfranchised. The BNP-four party alliance has demanded that election be rescheduled. However some legal experts argue that rescheduling would violate the election code that prohibits using religion for political or electoral purposes.

Proponents Announce New Strategy On Display of Nativity Scenes

CBN News yesterday reported that two Christian groups have come up with a new holiday display strategy. The National Clergy Council and the Christian Defense Coalition have begun "The Nativity Project." It encourages individuals to display nativity scenes in public places such as city halls, state capitol buildings and other public buildings. Project promoters say that "as individual citizens" these displays can be put up-- sometimes with, and sometimes without a permit. While not explicit on the matter, apparently the idea is for individuals to temporarily display the nativity scenes and stay with them in areas open for advocacy activities. The story touts the placing of a nativity scene in front of the U.S. Supreme Court yesterday-- apparently there temporarily while proponents were with it. Proponents also announced that for the first time ever, the groups have permission to stage a live nativity scene in Times Square on December 6th. The project is also encouraging the display of nativity scenes outside of private homes-- an activity that poses no legal problems.

Court Issues Preliminary Injunction Allowing Evangelist To Preach On Public Plaza

In Borden v. City of Modesto, (ED CA, Nov. 19, 2008), a California federal district court issued a preliminary injunction requiring the city of Modesto to give evangelist Kevin Borden equal access to the city's pedestrian Tenth Street Plaza to preach and proselytize. In its 22-page opinion, the court held that the entire Plaza is a public forum. Brenden Theaters, located adjacent to the Plaza, on various week end nights rented out part of the Plaza for parties. At those times it excluded Borden from the rented barricaded area, even though the rented area was essentially open to anyone else. The court held that the city may not delegate to those who rent out space unfettered discretion to exclude entry. The preliminary injunction-- which will remain in effect while the action is pending-- however allows exclusion of Borden when space is rented out for truly private events or for expression of a particular message. Alliance Defense Fund issued a release discussing the decision.

Indonesian Police Look To Prosecute Blogger Who Posted Muhammad Cartoons

In Jakarta, Indonesia, a government spokesman says that the Indonesian National Police cybercrime unit is attempting to trace the identity of a blogger whose blog contains cartoons depicting the prophet Muhammad. Jakarta Metro Police Special Crime Investigation Commissioner Raja Erizman says that the server and the blogger are outside of Indonesia, and that the blogger's motive is to upset Indonesia's Muslim community. According to Tempo Interactive yesterday, officials say the blogger, if identified, will be charged criminally with defaming religion and with violating the Information and Electronic Transaction Law.

Texas Board of Education Hears Testimony On Proposed Science Standards

Yesterday, the Texas State Board of Education heard testimony on its proposed standards for teaching science. Links to the full text of the standards and panel reports on them are available from the Texas Education Agency's website. Today's Dallas Morning News reports on testimony of some of the nearly 90 people who had registered to speak at the hearings. The focus was primarily on how evolution should be taught. As summarized by the paper:

College professors, science teachers and pro-evolution groups urged the board to drop a rule that requires the strengths and weaknesses of Darwin's theory to be taught in science courses, while conservative groups aligned with a sizable bloc of board members said the rule has worked well and hasn't forced religion into those classes as critics charge....

Revisions recommended by a panel of experts this week call for changing the "strengths-and-weaknesses" standard to "strengths and limitations." Another recommendation calls for middle school students to "discuss possible alternative explanations" for scientific concepts.

White House Won't Comment On Summum Case

The major church-state case pending before the U.S. Supreme Court this term is Pleasant Grove City, UT v. Summum. It was argued last week. (See prior posting.) Apparently the White House wants to steer clear of the controversy. Here is an exchange from yesterday's White House press briefing (full text) by Press Secretary Dana Perino. The reporter asking the question was WorldNet Daily correspondent, Les Kinsolving:

Q: Does the President believe or reject the contention that the First Amendment grants the 33-year-old Summum organization a right to erect a monument to its Seven Aphorisms in the city of Pleasant Grove, Utah, because there's a Ten Commandments monument?

MS. PERINO: Les, I really don't understand why you ask me these questions at the briefing. It's kind of a waste of your time, and it's a waste of everybody else's time. And it's really a waste of my time.

Q: No. This was page one.

MS. PERINO: I missed it.

Q: It was page one.

WorldNet Daily reported today on the exchange.

Court Says Church Can Continue Use of Building, But Must Comply With Code

In Guatay Christian Fellowship v. County of San Diego, (SD CA, Nov. 18, 2008), a California federal district court, citing "the overwhelming public interest ... in religious freedoms and activities", issued a preliminary injunction allowing a church to continue to meet in a trailer park recreation center that it rented. The building is currently zoned for serving alcoholic beverages and live entertainment, but not for religious use, and the county had issued a cease and desist order against the church. While enjoining enforcement of that order, the court required the church to first remedy the eight most serious code violations identified by county zoning authorities and to apply for a master use permit within 30 days of remedying the violations. Other code violations must be remedied within 90 days. The court said that the church's RLUIPA claim was not ripe because the church had not applied for a use permit or a zoning change. Today's San Diego Union-Tribune reports on the decision.

California Supreme Court Will Hear Challenges To Proposition 8

The California Supreme Court yesterday agreed to accept original jurisdiction over challenges to voter approval of Proposition 8, the ballot measure that bans same-sex marriage. (Judicial Council press release.) Yesterday's Los Angeles Times reports on the court's action. The cryptic two-page order issued by the Supreme Court (full text) actually covers a good deal of ground. It agrees to hear three of the six cases filed challenging the validity of Proposition 8. It permits the official proponents of the ballot issue to intervene as a party. In the order, the Court agreed (over one dissent) to decide whether Proposition 8 is a "revision" rather than an "amendment" to California's Constitution. The Proposition was passed under procedures for amendments. The Court will also decide whether Proposition 8 violates the separation of powers doctrine under California's constitution. In addition, if the court decides that Proposition 8 is valid, it will determine its effect on pre-existing gay marriages performed in California.

Finally, the court (over one dissent) refused to stay the operation of Proposition 8 pending the court's decision in the matter. A release by ProtectMarriage.com called denial of the requested stay the most significant part of the order. It is unclear what the court will do as to three other challenges that have been filed, including one by a number of religious groups. (See prior posting.)

Meanwhile, other countries are facing legal issues involving gay marriage. Jurist reported yesterday that the Supreme Court of Nepal has ordered an end to government discrimination based on sexual orientation. It has told the government to draft legislation permitting same-sex partnership and marriage. This follows a decision last year by the Court holding that sexual minorities should be granted equal rights.

UPDATE: The Los Angeles Times reported Wednesday that Proposition 8 supporters are considering the possiblility of a recall campaign aimed at California Supreme Court justices who vote to invalidate the approval of Proposition 8.

UPDATE: All orders, pleadings and briefs in the Proposition 8 challenges are posted on a special page on the Supreme Court's website.

Chabad Messianists Again Lose Court Battle Over Crown Heights Building

Earlier this month, a Brooklyn, New York trial court issued another decision in the long-running battle between two factions of the Chabad Lubavitch movement-- those who believe that the late grand Rebbe, Menachem Mendel Schneerson, who died in 1994, may be referred to publicly as the Messiah, and those who reject the messianist faction. A December 2007 trial court decision gave control of the movement's Crown Heights headquarters to the anti-messianist faction (Agudas Chasedei Chabad and Merkos L'Inyonei Chinuch), allowing them to eject the other faction which maintained a congregation (known as Congregation Lubavitch, Inc.) in the building's basement. (See prior posting.) Apparently this decision has been appealed.

As part of the long running case, in 2006 the court issued an order (full text) barring various individuals in the messianist faction from defacing, removing or interfering with a plaque commemorating the Rebbe's death that had been placed on the outer wall of Chabad's headquarters building. The messianists objected to the plaque because it referred to the Rebbe using a Hebrew acronym for "of blessed memory," thus suggesting that he was dead. (See prior posting and this background.)

Now in Merkos L'Inyonei Chinuch, Inc. v. Sharf, (NY Kings Co. Sup. Ct., Nov. 3, 2008), a New York trial court rejected an attempt by one of the parties to challenge the 2006 decision. In addition the court rejected an attempt by the messianists--Congregation Lubavitch, Inc. (CLI)-- to obtain access to a security plan that Merkos L'Inyonei Chinuch (MLC) agreed to in accepting New York state homeland security funds. CLI also wanted the court to order the concealment of any security cameras and to ban recording of prayer services on the sabbath and holidays except for law enforcement purposes. Also, apparently still asserting their control of the basement synagogue, CLI wanted to ban MLC from access to interior video recordings and wanted other restrictions on access to recordings. The court, relying on the 2007 decision that MLC was the legitimate owner of the property, held that CLI had no basis to obtain these limitations. [Thanks to J.J. Landa for the lead.]

Clergy Led Prayer Is Back In Indiana House

The Indy Star reports that this week, for the first time since January 2006, the Indiana state House of Representatives opened its session with a prayer led by a clergyman. In late 2005, a federal district court enjoined sectarian prayer in the House, but in late 2007 that decision was reversed by the 7th Circuit that held plaintiff lacked standing. (See prior postings, 1, 2.) In 2006, House members had gathered at the back of the Chamber to pray. In 2007 and 2008, the House Speaker read a nonsectarian prayer from the podium. But now clergy-led prayer has returned. Rev. Matthew Barnes opened Tuesday's session with a non-sectarian invocation that asked for God's guidance and blessings, but did not mention Jesus.

UPDATE: Thursday's Fort Wayne Journal Gazette says that the Indiana Senate will open its 2009 sessions with prayers offered by Senate members and by visiting clergy.

Jury Finds For Boulder Colorado Church In RLUIPA Case

The Longmont (CO) Times Call reported yesterday that a federal court jury has rendered its decision in Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Colorado. (See prior posting.) The case involves a challenge to the denial of a church's application for a special use permit so it can expand its facilities. The jury rejected the church's equal protection claims, but found that the Boulder County Commissioners violated the Religious Land Use and Institutionalized Persons Act by not treating the church equally with non-religious institutions and by placing a substantial burden on its exercise of religion. The jury did not award damages that the church sought to cover construction cost increases.