7th Circuit En Banc Upholds Damages Against Muslim Groups For Financing Hamas

In Boim v. Holy Land Foundation for Relief and Development, (7 Cir., Dec. 3, 2008), in a 7-3 en banc decision, the 7th Circuit Court of Appeals held the American Muslim Society and the Quranic Literacy Society liable under 18 USC 2333. The statute, as interpreted by the court, permits the award of treble damages against those who donate funds to a terrorist group. The lawsuit was brought by parents of a Jewish teenager who, in 1996, was shot to death by members of Hamas in Israel. Finding no First Amendment problem even if a donor does not intend to further the illegal goals of an organization, the court said:

Anyone who knowingly contributes to the nonviolent wing of an organization that he knows to engage in terrorism is knowingly contributing to the organization’s terrorist activities. And that is the only knowledge that can reasonably be required as a premise for liability. To require proof that the donor intended that his contribution be used for terrorism—to make a benign intent a defense— would as a practical matter eliminate donor liability except in cases in which the donor was foolish enough to admit his true intent.

The court also said that donors to terrorism should not be able to escape liability just because "terrorists and their supporters launder donations trough a chain of intermediate organizations." The court also rejected the 7th Circuit panel's conclusion that there was not sufficient evidence to find Hamas was responsible the teenager's death.

The court remanded for further trial the question of liability of the Holy Land Foundation, finding that the district court had wrongly applied the doctrine of collateral estoppel in holding it liable. The court reversed the judgment against an individual, Muhammad Salah, because his contributions pre-dated the effective date of a critical portion of the statutes under which the suit was brought. Judges Rovner, Williams and Wood dissented in two separate opinions. Bloomberg and IPT News both reported on the decision earlier this week. [Thanks to Jewish Delaware for the lead.]

Brookings Report Advises Obama On Continuation of Faith-Based Initiative

The Brookings Institution yesterday released a 58-page paper titled Serving People in Need, Safeguarding Religious Freedom: Recommendations for the New Administration on Partnerships with Faith-Based Organizations. Written by Brookings fellow E.J. Dionne, Jr. and Wake Forest Divinity School’s Melissa Rogers, the paper makes sixteen recommendations to the Obama administration for continuing, clarifying, modifying and strengthening President Bush’s Faith-Based and Community Initiative. The report recommends that the new administration ultimately create "a more durable policy regime" for partnering with religious groups so that the ground rules do not change from administration to administration. Brookings has separately posted the "List of Sources" that serve as endnotes to the report.

Russian Orthodox Patriarch Alexy II Dies

The International Herald Tribune reports that Russian Orthodox Patriarch Alexy II died today in Moscow at age 79. Heading the Church since 1990, Alexy presided over a restoration of the influence of the Orthodox Church in Russia. He maintained close ties with the Russian government and also often spoke out on moral issues. Alexy's relations with the Roman Catholic Church were often contentious. Pope Benedict XVI issued a statement of condolence. (International Herald Tribune.) The Jewish Telegraphic Agency eulogized Alexy, saying that he "became one of the first major religious Christian voices to call for an end to anti-Semitism in Russia." The Moscow Times speculates on Alexy's likely successor.

Times Ad Condemns Violence Against LDS Church For Its Prop 8 Support

A full-page ad titled "No Mob Veto" (full text) ran in today's New York Times. The ad condemns the "violence and intimidation" being directed at the Mormon Church by reason of its support of California's Proposition 8 that banned same-sex marriage. (See prior posting.) Coordinated by the Becket Fund, the ad is signed by thirteen prominent religious, academic and human rights leaders. The ad indicates that the signers have different views on the "wisdom and justice" of Proposition 8, but agree on their opposition to anti-religious bigotry and violence. Signers included individuals with Evangelical, Catholic and Jewish organizational affiliations.

In a press release on the ad, Interfaith Alliance President C. Welton Gaddy said: "I am pleased to see the newfound commitment of some of my friends on the right to fight against anti-religious bigotry and violence against houses of worship.... [However] I do wonder if the signers will be willing to spend tens-of-thousands of dollars along with their prestige the next time a primarily gay congregation’s legitimacy is called in to question, or a mosque is targeted for harassment." Towleroad blog has additional background on the ad.

Irish Broadcasting Commission Rejects Christmas Ads From Catholic Bishops

The Broadcasting Commission of Ireland (BCI) General Advertising Code, Sec. 9, as well as Section 10(e) of Ireland's Radio and Television Act of 1988 and Section 65 of the Broadcasting Act 2001, ban the broadcast in Ireland of ads "directed towards a religious end." In a press release issued yesterday, BCI said that applying this ban, it had rejected a number of scripts for a proposed Christmas advertising campaign by the organization Veritas which is owned by the Irish Catholic Bishops Conference. According to yesterday's Irish Times, the offending ad encouraged people to buy a Christmas gift that "means more."

NY Appellate Court: Civil Courts Can Require Inspection of Church Records

In Tae Hwa Yoon v New York Hahn Wolee Church, Inc., (NY App. Div., Nov. 25, 2008), a New York state appellate court reversed the dismissal of one claim in a lawsuit against a Yonkers (NY) church, its pastor and several of its trustees. Plaintiff, a member and former trustee of the church, alleged that defendants had diverted or misappropriated church funds. Invoking the New York Not-For-Profit Corporation Law, plaintiff sought to inspect the church's books and records, compel an accounting, enjoin defendants from accessing certain church funds and obtain a declaration that the election of the trustee who replaced him and the installation of a new pastor violated the church's bylaws. The trial court dismissed on the ground that the case could not be decided by the application of neutral principles of civil law.

The Appellate Division held that the claim for production of church books and records (N-PCL Sec. 621) could be decided without examining issues of religious doctrine. The Appellate Division upheld dismissal of the remainder of the claims, but on the ground that since they were asserting rights of the church, they needed to be brought as a derivative action and the special procedural requirements of such actions needed to be met. (N-PCL Sec. 623). [Thanks to J.J. Landa for the lead.]

Saudi Ministry Prepares For Hajj Pilgrims

The Hajj takes place in Saudi Arabia this year from Dec. 7 to 11. Only pilgrims with Hajj permits may participate. The Saudi Gazette today reports on arrangements that have been made by the Saudi Ministry of Islamic Affairs, Daw'a, and Guidance to handle the thousands who will take part. Over 800 religious guides and 180 interpreters have been stationed at pilgrim entry points and at holy sites. It has created a toll-free telephone number, and has set up 123 field centers in Mecca and Medina, to answer Hajj related questions. An area in Mecca has been converted into a spiritual center for sermons and instructions on performing the Hajj. The Saudi Project for Utilization of Sacrificial Animals will act as the agent of pilgrims in carrying out the slaughtering of animal offerings and the distribution of the meat in accordance with Shariah.

Tourist Council Treads Carefully In Funding for Christian Music Festival

A column in today's St. Petersburg (FL) Times discusses the state and federal constitutional issues that presented themselves last month as the Hernando County Tourist Development Council decided what kind of support it would give to the Brooksville Ministerial Association's annual summer Freedom Fest Christian music festival. As reported by the Nov. 25 issue of Hernando Today, originally the county agreed to give the Ministerial Association $5000 to help with promotion of the event. However, after questions were raised by the ADL and the ACLU, the Council decided that the funds, to be used to promote tourism, would go directly to vendors and advertisers, and not to the Association. Also, as reported by the Nov. 22 St. Petersburg Times, this year's festival slogan was changed from "God and Country" to the more secular "Family, Freedom and Country." Rev. Joe Santerelli, president of the Ministerial Association, however, says that they are still "going to proclaim the gospel of Jesus Christ at the event."

European Court of Human Rights Upholds French Limit on Head Scarves In Schools

In Dogru v. France, (ECHR, Dec. 4, 2008) [in English, Word.doc] and Kervanci v. France, (ECHR, Dec. 4, 2008) [in French, Word.doc], the European Court of Human Rights upheld French restrictions on Muslim girls wearing Islamic head scarves in their physical education classes. It found that the rule did not violate the girls' freedom of thought, conscience and religion protected by Art. 9 of the European Convention on Human Rights. As summarized in the Court's press release on the cases:

[T]he purpose of the restriction on the applicants' right to manifest their religious convictions was to adhere to the requirements of secularism in state schools..... [N]ational authorities were obliged to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion. In the Court's view, that concern did indeed appear to have been answered by the French secular model.

In the applicants' cases the Court considered that the conclusion reached by the national authorities that the wearing of a veil, such as the Islamic headscarf, was incompatible with sports classes for reasons of health or safety was not unreasonable..... [T]he penalty of expulsion did not appear disproportionate.... [A]pplicants had been able to continue their schooling by correspondence classes. It was clear that the applicants' religious convictions were fully taken into account in relation to the requirements of protecting the rights and freedoms of others and public order. It was also clear that the decision complained of was based on those requirements and not on any objections to the applicants' religious beliefs.

Yesterday's Irish Times and Today's Zaman reported on the decision.

In Nicaragua, Sandinistas Use Religion To Keep Political Support

This week's Nica Times (published in Costa Rica) reports on events in Nicaragua as politicians used religion for political purposes before and after recent Nicaraguan municipal elections. Before the Nov. 9 elections, Sandinista President Daniel Ortega sought out evangelical Christian leaders, giving them land, quoting the Bible, dedicating a Bible Plaza in downtown Managua, and declaring a National Day to Honor the Bible. However, after claims of election fraud in last month's elections, the Catholic Church in particular is concerned with the government's use of religious symbols for political ends. After the election, Sandinistas clashed with demonstrators while wearing government T-shirts bearing religious messages such as "Love is stronger than hate." The Ortega government has also attempted to identify itself with religion by placing statues of the Virgin Mary in all the traffic roundabouts in Managua.

Civil Court May Decide Scope of Authority of Archdiocese Agent

In Favalora v. Sidaway, (FL Ct. App., Dec. 3, 2008), a Florida state appellate court rejected a First Amendment religious autonomy challenge to civil court jurisdiction in a suit against the Catholic Archdiocese of Miami. In the case, plaintiff alleged that the Archdiocese fraudulently induced him to settle a claim by promising reforms which it never planned to implement. Plaintiff also asserted that that the agent for the Archdiocese who entered the settlement lacked authority to bind the Archbishop or Archdiocese. The Archdiocese moved to dismiss, claiming that questions of its agent's delegated powers are matters of internal church governance. The court disagreed, holding: "The mere fact that this case may require inquiry into the applicable church law does not constitute 'excessive entanglement' under the First Amendment.... Nothing in this case suggests that the circuit court is poised to substitute its interpretations of church law for those of the religious organization...."

Complaint In Suit Challenging Kentucky Homeland Security Law Now Available

As reported previously, the American Atheists and ten individuals are suing to challenge provisions in Kentucky statutes creating the state's Office of Homeland Security. The statute requires the agency to stress dependence on God as a necessary part of homeland security, and requires it to install a plaque with specified language to that effect. The lawsuit was filed in a Kentucky state court on Tuesday. (NoGodBlog). The complaint (full text) describes the state law as being enacted in response to the 9-11 attacks on the United States "by religious fanatics in a faith-based initiative." It alleges that the statutes are violative of Section 5 of the Kentucky Constitution (Right of religious freedom), and the First Amendment as well as Article VI of the U.S. Constitution:

The challenged laws unlawfully attempt, inter alia, to establish religion, endorse belief over non-belief, set up a religious test, indoctrinate Kentucky citizens and state employees in theistic religious beliefs, and diminish the civil rights, privileges or capacities of Atheists and others who do not believe in a god, or who believe in a different god or gods than the presumed supernatural entity unconstitutionally endorsed by the legislation complained of herein.

The lawsuit seeks a declaratory judgment and damages.

Roundtable Releases 2008 Report: Legal Developments In Faith-Based Initiative

On Tuesday, the Roundtable on Religion and Social Welfare Policy announced the release of The State of the Law-- 2008, a report on legal developments affecting government partnerships with faith-based organizations. This is the seventh, and last, of the reports on the Bush Administration's Faith-Based and Community Initiative that have been written annually by Law Professors Ira C. Lupu and Robert W. Tuttle. The report's Executive Summary concludes:

Partnerships between government and faith-based organizations did not begin with the Administration of George W. Bush, but the past eight years have involved an intense effort to expand such partnerships into new shapes and programs, and those efforts have borne significant fruit. The rules governing relationships between the state and religious organizations have been refined and clarified in ways that could not have been predicted on January 20, 2001.... We very much doubt that faith-based organizations will ever again be categorically disqualified from partnering with government in delivering social services.

The Roundtable's website contains extensive additional information on the faith-based social services.

In Britain, Queen Announces Proposal To Create Single Equality Commission

In Britain yesterday, the Queen's speech to Parliament (full text) announced that the government would introduce legislation to create a single commission for equality and human rights. The proposal will consolidate nine existing anti-discrimination laws into one Equality Bill. In 2007, Britain's Ministry of Justice circulated a consultation document on this proposal. (See prior posting.) EPolitix and Pink News yesterday both discussed at greater length the provisions of the proposed new legislation. The British Humanist Association issued a release welcoming the announcement by the Queen, but urged that the law also address discrimination by religious organizations. It said: "Existing UK equality law gives religious groups power to discriminate against those who do not share their beliefs in both employment and service provision – even when they are receiving public funding – and this is one inequality that we look to the Government to address."

UPDATE: The Muslim Council of Britain on Thursday particularly welcomed the proposed provisions in the new Equality Bill that will require public bodies to consider how their spending decisions, employment practices, and service delivery can affect people according to their religion. Current law requires consideration of race, disability or gender; the new law would extend this to religion or belief, gender, age, sexual orientation and sexual reassignment. (Mathaba).

North American Conservative Anglicans Create New Church Province

Over the last several years, courts in the United States and Canada have faced numerous lawsuits involving congregations and dioceses that have broken away from the Episcopal Church or the Anglican Church of Canada. The break-away congregations are more conservative and take issue with the parent Churches' policies on issues such as same-sex marriage, ordination of women and ordination of gay clergy. Yesterday these conservatives announced the formation of the Anglican Church in North America, a competing national Province still claiming to be part of the Anglican Communion. Yesterday's San Francisco Chronicle, reporting on developments, says that it is unprecedented for an Anglican national Province to be created where any other such national church already exists. However the new Province has the support of archbishops in three African countries and Argentina. The new Anglican Church in North America must still adopt a constitution and elect leaders. A Provisional Constitution and Provisional Canons have been published.

UPDATE: Episcopal News Service reported Thursday on a statement from the London office of the Archbishop of Canterbury on the proposed new Anglican province in North America. It said in part: "There are clear guidelines..., notably [Anglican Consultative Council] resolution 12, detailing the steps necessary for ... the creation of new provinces.... Once begun, any of these processes will take years to complete. In relation to the recent announcement from the meeting of the Common Cause Partnership in Chicago, the process has not yet begun."

Egyptian Freed Pending Appeal in Case on Religion in Identity Documents

Compass Direct News reported yesterday on a case in Egypt involving forgery charges against a woman for falsely failing to list herself as a Muslim on her official identification papers, including her marriage certificate. Bahia El-Sisi says that she is a Christian. Her father converted to Islam in 1962, but reconverted to Christianity three years later. He is in prison for obtaining forged identification papers identifying him as a Christian. Only recently has there been any possiblity of legally changing identity papers to reflect such a reconversion. (See prior posting.) El-Sisi and her sister were both charged with forgery and sentenced to jail in abstentia in 2000. Her sister was freed last January. On Nov. 25, Supreme Court Judge Abdel Meged Mahmood rescinded a warrant for El-Sisi's arrest and ruled that she could remain free pending appeal of her conviction.

Maldives Blocks Access To Christian Website

In the Maldives, the restrictive Protection of Religious Unity Act prohibits dissemination of information on non-Muslim religions. (Forum 18 background.) According to Minivan News today, the Maldives Ministry of Islamic Affairs this week blocked access to a website, Sidahitun.com, which contains information about Christianity in the Dhivehi language that is spoken in the Maldives. Sheikh Ibrahim Fareed Ahmed supported the ban, saying: "Although this is an Islamic society, some Maldivians' faith in Islam is not very strong." The Maldives 2008 Constitution (Sec. 27) provides: "Everyone has the right to freedom of thought and the freedom to communicate opinions and expression in a manner that is not contrary to any tenet of Islam."

Los Angeles Jews for Jesus Leafleting Case Settled

Alliance Defense Fund announced yesterday the settlement of a challenge to leafleting restrictions imposed by the City of Los Angeles (CA) on a Jews for Jesus group. Last year, a California federal district court issued a preliminary injunction ordering police to protect Jews for Jesus members who planned to hand out literature outside an Israel Independence Day Festival, so long as they remained at a prescribed distance. (See prior posting.) Now, in a stipulated permanent injunction in Jews for Jesus v. City of Los Angeles, California, (CD CA, Nov. 12, 2008), the court issued a permanent injunction permitting Jews for Jesus to hand out literature and converse with attendees at future Israeli Independence Day Festivals, but only if they remain at least 10 yards away from the entrance gate and outside the Festival's fenced off area. Following entry of the judgment, the court, on Dec. 1, entered a Stipulation of Voluntary Dismissal.

RLUIPA Protects New York Church's Catering Activities From Adverse Zoning Action

In Third Church of Christ, Scientist v. City of New York, (SDNY, Dec. 2, 2008), a New York federal district court, applying the "equal terms provision" of RLUIPA, enjoined the city from revoking previously granted approval for a church to use its building for catering activities. The city argued that the catering activities were no longer an "accessory use." Rather they had become so extensive that use of the building as a church by the declining congregation's membership was no longer the building's primary use. The court was troubled that this interpretation would permit smaller religious groups to be treated less favorably than larger ones. Ultimately however the court said that it did not need to resolve the issue of "accessory use" because

the Equal Terms provision is squarely implicated by the City's decision to revoke its earlier granted pre-consideration for the Church when other food-service and catering businesses, associated with non-religious groups, operating in the same neighborhood as Plaintiff, also in violation of the Zoning Resolution, were given only a "Notice of Violation."

Finding that the 2nd Circuit had not interpreted the RLUIPA's equal terms provision, the court held that under either the 3rd or 11th Circuits' competing interpretations, Plaintiff would prevail. The court also expressed concern over the City's policy of investigating zoning violations only when a complaint is filed. This can lead to "unfair targeting of unpopular groups." Yesterday's New York Times reported on the decision. (See prior related posting.)

Capitol Visitor Center Opens With Objection To Lack of Religious References

Yesterday, the $621 million U.S. Capitol Visitor Center, over-budget and behind schedule, opened to the public. (Washington Post.) South Carolina Republican Senator Jame DeMint almost delayed the opening further, according to the McClatchy Newspapers yesterday. DeMint complains that the Center "fails to appropriately honor our religious heritage that has been critical to America’s success." (DeMint Press Release.) Problems began when, on a preview tour, DeMint discovered that a panel on a wall incorrectly identified "E Pluribus Unum", rather than "In God We Trust" as the national motto. The chairman and the ranking member of the Senate Rules and Administration Committee have agreed to support removal of the erroneous reference to "Our Nation's Motto" (which has been temporarily plastered over), and to adding engravings of "In God We Trust" and the Pledge of Allegiance in prominent locations in the Visitor Center. DeMint says:

While the Architect of the Capitol has pledged to include some references to faith, more needs to be done.... The current ... displays are left-leaning and in some cases distort our true history. Exhibits portray the federal government as the fulfillment of human ambition and the answer to all of society’s problems. This is a clear departure from acknowledging that Americans' rights 'are endowed by their Creator' and stem from 'a firm reliance on the protection of Divine Providence.'

DeMint particularly objects to the engraving near the entrance reading: "We have built no temple but the Capitol. We consult no common oracle but the Constitution."

Fired Human Resources VP Who Disputed Gay Rights Sues University

The Toledo Blade reports that on Monday a federal lawsuit was filed against the University of Toledo by its former Associate Vice-President for Human Resources, Crystal Dixon. Dixon was fired after she wrote a column for a local newspaper arguing that gays and lesbians are not "civil rights victims." (See prior posting.) The complaint (full text) alleges that "Plaintiff, an African-American woman and sincere practicing Christian, believes that homosexuality is a grave offense against the Law of God and that comparing homosexual activity with the struggles of African-American civil rights victims is absurd and untenable because she believes homosexuality is a lifestyle choice and not an immutable or inherent genetic and biological characteristic...."

The lawsuit alleges that Dixon's column expressed her personal views, and that her firing infringes her 1st Amendment free speech rights. The complaint also claims equal protection violations, arguing that other University personnel have been permitted to speak out on political and social issues without consequences. Richard Thompson of the Thomas More Law Center who represents Dixon said that homosexuals have an "inordinate amount of influence" over University president Lloyd Jacobs. The University claims that Dixon's human resources position was one of special sensitivity, and that her ability to perform that job was undermined by her statements.

Orthodox Church Wants Russia To Outlaw Satanism and Church Desecration

Concerned with Satanist symbols, swastikas and inverted stars being scratched on church walls, a Russian Orthodox Church official has called on Russia to adopt a statutory ban on Satanism. Interfax reported yesterday that Archpriest Vsevolod Chaplin, deputy chairman of the Moscow Patriarchate Department for External Church Relations, also wants a law banning desecration of religious shrines. Chaplin says Satanism leads to murder, animal abuse and desecration of churches and graves.

Court Says No Free Exercise Problem In Homicide Charges Against Parents

In Wausau, Wisconsin, a trial court judge ruled Monday that Dale and Leilani Neumann's free exercise and due process rights are not violated by prosecuting them for reckless homicide. AP reports that the parents are charged with praying for the recovery of their 11-year old daughter instead of getting her medical assistance as required by law. She died of untreated diabetes. The court's opinion stated that the parents' "right to transfer religious belief into conduct must yield to neutral, generally applied criminal statutes designed to protect public safety." The court ruled, however, that if it is shown that the parents "genuinely believed that prayer alone would save their daughter and that she was in no danger of dying without medical care, then they could not be found criminally negligent." The court also ruled that the exclusion of treatment by prayer from the state's child abuse statute did not preclude fair notice to the parents that the homicide law could still cover their behavior.

Australian Court Is Asked To Order Police Investigation of Religious Group

In Australia, three women, former members of the Christian Exclusive Brethren movement, have petitioned the Federal Court seeking to have it issue a writ of mandamus to force government authorities to investigate the religious group. The Age (Melbourne) today reports that the petitioners, three sisters, say they are on the run from the sect that they accuse of trafficking, debt bondage and cultural genocide. Justice Tony North urged petitioners, who appeared pro se, to obtain an attorney. When they said they could not afford one, North said he would attempt to have the Law Institute furnish a lawyer free of charge. Melbourne's Herald Sun yesterday, reporting on the case, said that the Exclusive Brethren is very controversial in Australia because of allegations that it used its wealth to prevent the Senate from investigating it. The court petition raises questions of whether the Federal Court has jurisdiction to order the Federal Police to investigate allegations of crime.

Massachusetts High Court Lets Rastafarian Go To Trial Against Jiffy Lube

In Brown v. F.L. Roberts & Co., Inc., (MA Sup. Jud. Ct., Dec. 2, 2008), the Massachusetts Supreme Judicial Court rejected defendant's motion for summary judgment and ordered to trial a case in which a Rastafarian sought an exemption from an employer's grooming policy. Plaintiff, Bobby Brown, alleged religious discrimination in violation MGL c. 151B, § 4(1A) after Jiffy Lube told the lube technician that he could only work in the lower bay, where there was no customer contact, because he wore a beard and long hair. The statute requires an employer to accommodate an employee's religious practices unless accommodation would impose an undue hardship. The court held that Jiffy Lube must show more than merely a non-economic cost to its image to prove undue hardship. It also held, however, that Jiffy Lube is entitled to a trial on whether working in the lower bay was a reasonable accommodation of Brown's religious needs. The Quincy Patriot Ledger and the AP report on the case.

Cuba Improves Relations With Vatican As Castro Attends Beatification Mass

NBC News reported yesterday that Cuba's government has taken an important step toward improving relations with the Catholic Church. Last week end, Cuban President Raul Castro sat in the front row at a 3-hour mass beatifying Cuban Friar Jose Olallo Valdes. The 19th century friar is known as "father of the poor."

Religion Clause Nominated As One of "100 Best" By ABA For Second Year

I am pleased to announce that Religion Clause has been nominated by the editors of the ABA Journal as one of the 100 best legal blogs for 2008. (ABA press release.) Religion Clause is one of only 50 blawgs that have been nominated to the list of the "100 best" two years in a row. Until January 2, you can vote online for the best blog in each of the ABA's ten categories. Religion Clause is nominated in the "Niche" category, along with 14 other great blawgs. To vote for the best in the Niche category, click here. To vote in all of the categories, click here.

Limitation on Church Attendance Does Not Violate Parolee's Free Exercise Rights

In Burchett v. Bromps, 2008 U.S. Dist. LEXIS 96920 (ED WA, Nov. 20, 2008), a Washington federal district court rejected a free exercise challenge to the conditions of his community release brought by a pedophile sex offender. Donald Burchett, whose offense was committed at a church, was required to obtain permission of his parole officer in order to go within three blocks of a church. This specific requirement was imposed after the parole officer received a complaint from a pastor that Burchett was harassing a female member of the congregation. The court held:

The limitation placed on Mr. Burchett by the stipulated Agreement did not represent a substantial burden on the observation of a central religious belief or practice, and cannot be considered anything more than an inconvenience. Mr. Burchett could still attend church if he so desired; he merely had to seek permission before doing so.... The government has a compelling interest in making sure the community is protected from pedophile sex offenders.

Anti-Religion Sign Is Next To Creche In Capitol Under Open Forum Rules

Last October, the Alliance Defense Fund settled a suit it had brought against Washington state on behalf of private citizen Ron Wesselius who wished to put up a Nativity Scene in the state Capitol building next to a menorah and holiday tree that were previously approved. Under the settlement (see prior posting), Capitol campus facilities would be made available for public use on a non-discriminatory basis. Yesterday's Seattle Times reports that, taking advantage of that open forum designation, the Freedom from Religion Foundation has put up a sign for December at the Capitol reading in part: "Religion is but myth and superstition that hardens hearts and enslaves minds." Because a similar sign placed in the Wisconsin capitol is frequently turned around by those who object to it, the Washington sign has an inscription on the back: "State/Church; Keep Them Separate." A Nativity scene is also being put up near the sign by Ron Wesselius, plaintiff in last year's settled case.

Marijuana Conviction Upheld; Religious Freedom Defense Rejected

In People v. Rubin, (CA Ct. App., Dec. 1, 2008), a California state appellate court upheld a defendant's conviction for selling marijuana and possessing it for sale. The court rejected his argument that the Free Exercise clause of the state and federal constitutions protected his activity. Defendant Craig X. Rubin was the owner of Temple 420, a church in which members could buy various sorts of marijuana. Rubin, ordained online as a minister of the Universal Life Church, even planned to make marijuana available in the church through vending machines. The court rejected Rubin's argument that he was denied a fair trial because he was not allowed to refer to the federal Religious Freedom Restoration Act. The court also rejected Rubin's 1st Amendment defense, saying he was prosecuted for selling and possessing marijuana, not for its religious use. Finally the court rejected Rubin's claim that it should have instructed the jury on mistake of law. (See prior related posting.) [Thanks to Robert H. Thomas for the lead.]

Zimbabwe Court Protects Apostolic Sect From Local Chief

In Zimbabwe, a High Court judge has ruled in favor of the Friday Apostles Johane Masowe Ye Chishanu sect in their lawsuit against Chief Clement Nembire in Mt. Darwin. The background is found in an article from last month in Zimbabwe's Herald. Nembire claimed that the sect, led by Madzibaba Reuben Tapedza, keeps its children out of schools, denies them hospital treatment, and marries off underage children. The sect denied the charges and agreed to protect the rights of children. Nevertheless, Nembire prohibited the sect from engaging in any worship activities in his chiefdom, destroyed its shrine and barred members from meeting together. Nembire threatened violence and murder against anyone who violated these orders. Yesterday's Herald reports that the High Court has now barred Chief Nembire from interfering with the sect's right to worship, and with its members' use of their homes and land. The court ruled that citizens have a right to live free from harassment. The sect was represented by Zimbabwe Lawyers for Human Rights.

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.