Recent Prisoner Free Excercise Cases

In Sylvester v. Cain, (5th Cir., Feb. 20, 2009), the U.S. 5th Circuit Court of Appeals rejected plaintiff's claim that he was he was retaliated against on the basis of his religion when he filed a grievance. It also refused to consider a RLUIPA claim that had not been raised below.

In Barhite v. Caruso, 2009 U.S. Dist. LEXIS 13609 (WD MI, Feb. 23, 2009), a Michigan federal district court held that plaintiff inmate had not shown that his religious exercise was burdened when prison authorities removed pictures of young women from his possession. He claimed that they were taken because he was a Mormon after a Texas raid on and FLDS complex that led to removal of children.

In Jordan v. Caruso, 2008 U.S. Dist. LEXIS 98649 (WD MI, Dec. 8, 2008), a Michigan federal district court refused to dismiss free exercise claims brought by an African-American Jewish inmate who alleged that he was not excused from work on Saturdays and was not permitted to attend religious services by video conference equipment.

In Davis v. Hawaii, 2009 U.S. Dist. LEXIS 14004 (D HI, Feb. 23, 2009), an Hawaii federal magistrate judge granted defendants' motion to transfer to an Arizona federal district court a prisoner's claim that his rights were violated when Arizona prison officials prevented him from practicing his Native Hawaiian religion when they failed to hold a Makahiki closing ceremony feast.

In Corbeil v. Moore, 2009 U.S. Dist. LEXIS 14388 (WD LA, Jan. 30, 2009), a Louisiana federal magistrate judge dismissed an inmate's complaint that he was denied a kosher diet by prison authorities.

In Ahmed v. Willis, 2009 U.S. Dist. LEXIS 14245 (ED VA, Feb. 23, 2009), a Virginia federal district court dismissed plaintiff's claims under RLUIPA and the 1st Amendment challenging his removal from the Ramadan fasting list.

Indian State Proposes Controlling Board For Church Property

In the Indian state of Madhya Pradesh, the government is taking steps to form an agency to manage Catholic Church properties, including cemeteries, similar to the Muslim Wakf Board that manages Muslim religious properties. Calcutta's Telegraph reported Saturday that Church leaders plan to file suit in the Jabalpur High Court to prevent implementation of the plan. The state's Minorities Commission says the proposal is designed to increase transparency in management of Church properties.

Supreme Court Remands Companion Summum Case To 10th Circuit

As previously reported, last week the U.S. Supreme Court decided Pleasant Grove City v. Summum, holding that Pleasant Grove City, Utah need not acccept a "Seven Aphorisms" monument for a local park. In the 10th Circuit Court of Appeals below, there was a companion case decided at the same time, Summum v. Duchesne City, which involved a more complicated version of the same sort of underlying dispute. In that case, the only display already in the city's park was a 10 Commandments monument, and the city attempted to avoid Summum's request by transferring the land under the Ten Commandments display to a private party. (See prior posting.)

A petition for cert. had been filed in this companion case as well, but had never been acted upon by the Court. (See prior posting.) Today, in a brief order (Docket No. 07-690), the Court granted certiorari, vacated the judgment below and remanded the case for further consideration in light of the decision in the Pleasant Grove City case. Interestingly, the Court has also granted cert. this term in a case involving land transfers in order to avoid Establishment Clause concerns. (See prior posting.) However the "government speech" holding in the Pleasant Grove City case may be dispositive in the case remanded today, regardless of the Court's resolution on land transfers.

Cert. Denied In Ban on Coach Joining Team In Prayer

The U.S. Supreme Court today denied certiorari in Borden v. School District of East Brunswick, (Docket No. 08-482, March 2, 2009) (Order List.) In the case, the 3rd Circuit upheld the East Brunswick, New Jersey School District’s policy prohibiting faculty participation in student-initiated prayer. The lawsuit was filed by high school football coach Marcus Borden who wished join with his team in bowing his head during the team's pre-meal grace and kneeling during a team-led prayer in the locker-room. (See prior posting.)

State Education Officials Examine Tutor's Scientology-Related Techniques

Yesterday's Atlanta Journal Constitution reports that Georgia education officials, in conducting their annual inspection of a tutoring organization, Applied Scholastics, are looking carefully at its use of teaching techniques developed by Scientology founder L. Ron Hubbard. At issue is the question of whether Applied Scholsatic's program is secular, or instead is a disguised method of teaching Scientology. Georgia's state Department of Education approves and monitors tutors that are available for selection by parents of children who fail to meet federal academic standards. Tutors are paid with federal funds.

City's Construction Aid To Historic Church Is Questioned

In 2005, Carson City, Nevada city officials refused to grant First Presbyterian Church a permit to tear down its historic building and construct a new one. The old building, located in an historic district, had ties to Mark Twain who helped build it in the 1860's. However, the city did agree that it would aid the congregation fund the cost of a new building on an adjacent site. In 2006, the city gave the church $67,700 for design costs, and last month supervisors voted the church another $78,800 for sidewalks, landscaping and roof repairs. Now, according to yesterday's Los Angeles Times, Americans United says the funding raises a church-state issue, and threatens to file suit if the Board of Supervisors does not rescind last month's vote.

UPDATE: The Los Angeles Times reported on April 6 that Americans United has decided not to sue at this time because of the reluctance by courts to force religious institutions to return funds already awarded. However AU says it will sue if the city decides to make any more payments in the future.

Malaysia Will Permit Christian Publications To Use Term "Allah"

In Malaysia, the government's Home Ministry has issued an order under the internal Security Act declaring that the use of the word "Allah" in Christian publications is no longer prohibited. The Sun reported last week however that the Feb. 16 order requires any Christian publication using the term to carry in large type on the front cover the statement: "FOR CHRISTIANITY." The newspaper Catholic Herald has been in a dispute for some time with government officials over the paper's use of the term. (See prior posting.) The paper is studying the implications of the new order. (The Star 2/27.)

Recent Articles and Book Of Interest

From SSRN:

• Miranda Perry Fleischer, Theorizing the Charitable Tax Subsidies: The Role of Distributive Justice, (U Illinois Law & Economics Research Paper No. LE09-006, Feb.24, 2009).


• Jeanne L. Schroeder, Totem, Taboo and the Concept of Law: Myth in Hart and Freud, (Cardozo Legal Studies Research Paper No. 253, Feb. 24, 2009).


• Ajay K. Mehrotra, "Render Unto Caesar . . .": Religion/Ethics, Expertise, and the Historical Underpinnings of the Modern American Tax System, (Loyola University Chicago Law Journal, Vol. 40, 2009).

From SmartCILP:

• Raymond B. Marcin, God's Littlest Children and the Right to Live: The Case for a Positivist Pro-Life Overturning of Roe, 25 Journal of Contemporary Health Law & Policy 38-75 (2008).

New Book:

• Lisa A. Runquist & Jeannie Carmedelle Frey, Guide to Representing Religious Organizations, (ABA, Feb. 2009).

California Muslims Distressed After Disclosure of FBI Infiltration of Mosques

Today's Los Angeles Times reports that local Muslims are dismayed after revelations last week that during 2006 and 2007 the FBI used an informant to attend several Orange County (CA)mosques to gather evidence against Afghanistan-born Ahmadullah Sais Niazi who authorities say had ties to Al Qaeda. Since the disclosures, some Muslims are avoiding mosques and praying at home. Others are reducing their contributions to mosques to avoid attracting attention, or donating in cash to avoid creating records. Some mosques are asking speakers to avoid issues like U.S. foreign policy in their sermons.

Episcopal Diocese Sues To Gain Title To Property of Dissident Philadelphia Parish

Last week, according to Virtue Online, the Episcopal Diocese of Pennsylvania filed suit in a Pennsylvania state court seeking to recover the property and assets of Philadelphia's Rosemont Church of the Good Shepherd. While the parish has not formally dissociated itself from the Episcopal Church, the complaint (full text) in Protestant Episcopal Church of the Diocese of Pennsylvania v. Church of the Good Shepard Rosemont, Pennsylvania, (Com Pl, filed 2/19/2009), alleges that those in control of Good Shepard no longer consider the parish to be a constituent part of the Diocese of Pennsylvania or the Episcopal Church. It says that the parish has ceased to act in accord with the Constitution and Canons of the Episcopal Church. In 2002, Bishop Charles Bennison inhibited and "deposed" the parish's leader, Rev. David Moyer, who has been ordained as Bishop by the more conservative Traditional Anglican Union. Last year, a state trial court rejected Moyer's suit that claimed the diocese engaged in fraud when it asserted that Moyer had "abandoned the communion of the Episcopal Church." (See prior posting.)

Catholic Cardinal May Be Appointed To House of Lords for First Time In 500 Years

AP reported yesterday that for the first time in nearly 500 years, a Catholic Archbishop may be appointed to Britain's House of Lords. Prime Minister Gordon Brown raised speculation on the possibility in response to a reporter's question ofnwhether Cardinal Archbishop Cormac Murphy-O'Connor who is retiring later this year is in line for a seat. Brown responded: "These are things to be discussed at a later stage." There are 26 bishops from the Church of England in the House of Lords, and retired chief rabbis have been appointed.However relations with the Catholic Church have been an issue since the 16th century when King Henry VIII broke with the Vatican over its refusal to grant him an annulment.

Questions Continue On Improper Proselytizing In Military

Today's New York Times reports that questions persist on whether the military continues to be involved in improper religious proselytizing. An official military suicide-prevention video shows former Pittsburgh Steelers quarterback Terry Bradshaw talking about how Christian prayer helped him through bouts of depression. The Pentagon says it has received 50 complaints of religious discrimination from all branches of the military from 2005 to 2007. In another incident, a former Air Force Reserve fighter pilot says he received a negative certification and ultimately lost his flying certification after writing a letter complaining about Christian prayers at homecoming ceremonies for service personnel returning from Iraq and Afghanistan. A lawsuit challenging improper promotion of religion in the military is pending in federal court. (See prior posting.)

Meanwhile, the Obama administration may be more sympathetic to complaints about church-state breaches in the military than was the Bush Pentagon. Last week for the first time, a member of the Joint Chiefs of Staff met with activist Mikey Weinstein, head of the Military Religious Freedom Foundation. Air Force chief of staff, Gen. Norton A. Schwartz, acknowledged to Weinstein that there is a problem. But retired General Bruce L. Fister, executive director of the Officers’ Christian Fellowship, said: "the problem is that Christians are going to operate one way or the other, and whenever the church has been persecuted, it’s grown stronger."

Nebraska Appeals Court Dismisses Suit Against God

AP yesterday reported that the Nebraska Court of Appeals has dismissed a lawsuit filed by former state Senator Ernie Chambers against God, seeking an injunction to stop His causing, death destruction and terror through various natural disasters. Last October, a Douglas County (NE) trial judge dismissed to suit because God had not been served with process. (See prior posting.) Chambers appealed arguing that since God is all-knowing, defendant has notice of the lawsuit. Now the Court of Appeals has vacated the judgment saying that courts will not decide abstract questions or hypothetical or fictitious issues.

Likely Nominee To Head EEOC Is Disclosed

The Washington Post reported Saturday that Cassandra Butts is likely to be President Obama's nominee to chair the Equal Employment Opportunity Commission. Butts, a former Harvard Law School classmate of Obama's, is currently deputy White House counsel. Formerly she had positions with NAACP Legal Defense Fund, was on House minority leader Richard Gephardt's staff and was a senior vice president for domestic policy at the Center for American Progress. The EEOC enforces federal employment discrimination laws, including laws banning religious discrimination in employment.

Vatican Says Statement By Holocaust Denying Bishop Is Insufficient Apology

On Thursday, Zenit published an apology of sorts from Lefebvrite Bishop Richard Williamson in connection with his comments denying the Holocaust. Earlier this month, Pope Benedict XVI lifted Williamson's long-standing excommunication, along with that of 3 other right-wing bishops. (See prior posting.) However, following protests, the Pope told Williamson that he must recant his Holocaust views to be fully reinstated. (See prior posting.) According to the New York Times on Friday, Williamson's recent apology is not seen by the Vatican as sufficient to restore him to full communion with the Church. Apparently in recent weeks, Williamson has contacted another Holocaust denier, David Irving, for assistance in assessing the Holocaust. Irving served 13 months in prison in Austria for "glorifying ... the German Nazi Party."

Local Sex-Offender Residence Restrictions Invalidated In Aftermath of Religious Issue

After losing a free exercise challenge to sex offender restrictions that prohibited him from living within walking distance of a synagogue in Rockland County, New York (see prior posting), Yoel Oberlander succeeded last month in invalidating on other grounds a local law that created "pedophile-free child safety zones" in the county. In People v. Oberlander, (Sup. Ct., Jan. 22, 2009), a New York state trial court held that the local ordinance is pre-empted by a less restrictive state law. The lawsuit was filed after the Probation Department rejected 15 different residence locations proposed by Oberlander.

U.S. Withdraws From Further Participation In Durban II Conference

The U.S. State Department announced Friday (press release) that the U.S. is withdrawing from further participation in the United Nations Durban Review Conference and will re-engage only if dramatic revisions are made in the document being drafted for the Conference. It said the current draft "has gone from bad to worse." The United States and Israel walked out of the first Conference, held in Durban in 2001, because of the anti-Semitic and anti-Israel focus of many participants. Now, after preliminarily participating in planning sessions for Durban II (see prior posting), the U.S. essentially joins Canada and Israel which have already announced they will boycott this year's Conference. The U.S. is concerned not just about the anti-Israel focus of the current Conference draft document, but also about its endorsement of a ban on "defamation of religion" and its language on reparations for slavery.

However, attempting to maintain a U.S. presence in United Nations human rights efforts, the State Department also said the U.S. would return as an observer at this month's session of the U.N. Human Rights Council, even though it is concerned about the trajectory of discussions there. Reporting on developments, the Washington Post points out that the Bush administration withdrew HRC observers last June.

HHS Will Propose Repeal of Recent Health Care Conscience Regulations

The Washington Post today reports that the Obama administration will issue for comment a proposal to rescind the conscience regulations covering health care workers adopted in the final days of the Bush administration. Those rules prohibit state and local governments, as well as health care institutions, that receive federal funds from discriminating against those who object to furnishing abortion, sterilization and various other services. (See prior posting.) A Department of Health and Human Services spokesman suggested that the Obama administration favors a narrower rule protecting conscience rights of those who object to abortion, but it opposes the recent regulations that cover a wide range of other services as well. A compromise could arise after comments are filed during the 30-day comment period that will be provided.

James Dobson Steps Down As Chairman of Focus on the Family

James Dobson has stepped down as chairman of Focus on the Family, the conservative Christian pro-family group he founded in 1977. According to CBN News today, the 72-year old Dobson wants to make way for new, younger leadership. Jim Daly, president and CEO of the organization will take over as chairman. Dobson will continue to host the organization's daily radio program and speak out on moral issues. The AP says Dobson's move is part of a succession plan begun 6 years ago. Reactions both by Dobson's friends and detractors were quick to come. Gary Bauer, president of American Values and chairman of the Campaign for Working Families, said of Dr. Dobson and his wife Shirley: "They have been warriors for faith, family and freedom, and I trust they will continue to fight the good fight for many more years to come."

Barry W. Lynn, executive director of Americans United for Separation of Church and State, issued a statement saying in part: "Focus on the Family is merely rearranging the deck chairs on its big, intolerant ship. I do not expect this change to mean we will see any moderation in the rhetoric of Focus on the Family or its arm in Washington, the Family Research Council. For years, FOF has been the leading voice of religious extremism and intolerance in America."

Nonprofits Oppose Obama Budget Plan Limiting Some Charitable Deductions

President Obama yesterday released his budget proposals in a 140-page document titled A New Era of Responsibility: Renewing America's Promise. One provision is controversial among non-profit groups, including a number of religious organizations. For families with incomes over $250,000, itemized tax deductions (including charitable deductions) would be at only a 28% tax rate instead of 35%. The additional revenues generated would help expand health insurance coverage. Today's New York Times says that "wealthy donors and the nonprofit groups they support were in an uproar" over the proposal. However it goes on to report that surveys indicate few wealthy donors are likely to reduce their giving as a result of the change and many high-income donors are already capped at 28% because of the alternative minimum tax. A statement opposing Obama's plan issued by United Jewish Communities however argues that "any reduction in the tax benefits available for charitable giving will have a significant negative impact on giving."

State Department Releases Annual Country Reports on Human Rights

The U.S. State Department yesterday issued its 2008 Country Reports on Human Rights Practices evaluating strengths and weaknesses in each nation around the world. Concerns over restrictions on religious freedom and religious discrimination in various countries are among the broad range of human rights items covered. The press conference releasing the reports began with remarks by Secretary of State Hillary Clinton, followed by a briefing from Acting Assistant Secretary for Democracy, Human Rights and Labor Karen Stewart. [Thanks to Joel Katz of Relig. & State In Israel for the lead.]

Senate Votes To Ban Reimposition of Fairness Doctrine On Broadcasters

On an issue that has been seen as particularly important by religious broadcasters (see prior posting), the U.S. Senate yesterday voted 87-11 to prevent the Federal Communications Commission from repromulgating the Fairness Doctrine. In a separate amendment the Senate also voted to continue the policy of encouraging diversity in communication media ownership, and to require that the airwaves be used in the public interest.

AP, reporting on the amendments that were added to the District of Columbia Voting Rights Act, indicated that President Barack Obama has already said he does not intend to revive the Fairness Doctrine. Dan Gilgoff, on his God & Country blog, quotes Indiana Rep. Mike Pence who says: "The revival of the fairness doctrine is an existential threat to Christian radio. Requiring Christian stations to carry competing worldviews on issues like marriage and sanctity of life—these stations are ministries, and it's not something they're prepared to do." The Senate also added a gun rights amendment to the D.C. Voting Rights Act, and then by a vote of 61-37 sent the entire bill on to the House.

Illinois Moment of Silence Decision Will Be Appealed

Suburban Chicago Daily Herald reported yesterday that the Illinois Attorney General's office will file an appeal to the U.S. 7th Circuit Court of Appeals in Sherman v. Township High School District 214, (ND IL, Jan. 21, 2009). In the case, a federal district court enjoined enforcement of Illinois "Moment of Silence" law. The law calls for each school day to begin with a brief period of silence for prayer or reflection. (See prior posting.) [Thanks to Scott Mange for the lead.]

Group Criticizes German Laws On Teachers Wearing Religious Garb

Human Rights Watch yesterday released an extensive report titled Discrimination in the Name of Neutrality-- Headscarf Bans for Teachers and Civil Servants in Germany. The Executive Summary describes the Report's conclusions:

After examining the laws and policies in the eight German states that restrict the wearing of religious symbols, and how they are applied in practice, Human Rights Watch has found that they contravene Germany’s international obligations to guarantee individuals the right to freedom of religion and equality before the law. These laws (either explicitly or in their application) discriminate against Muslim women, excluding them from teaching and other public sector employment on the basis of their faith.

Those states that ban religious clothing but still allow Christian symbols explicitly discriminate on the grounds of faith. In any event, in all eight states the ban is applied specifically against Muslim women who wear the headscarf.... The measures effectively force women to choose between their employment and the manifestation of their religious beliefs, violating their right to freedom of religion and equal treatment.

Jurist discusses the Report, as does Deutsche Welle.

Arkansas Senate Committee Defeats Attempt To Allow Guns In Churches

In Arkansas, gun rights proponents have failed in their efforts to remove the state ban on carrying concealed weapons in churches. ABP reported yesterday that by a voice vote, a committee of the Arkansas Senate rejected HB 1237 that had been passed by the House (see prior posting). The bill would have amended the state's concealed-carry law to allow firearms in places of worship unless signs were posted by the church prohibiting them. Proponents of the measure had argued that "self-defense is a moral decision, and that decision should not be made for churches by the state."

9th Circuit: Treating Montana Church As Political Committee Violates Speech Rights

In Canyon Ferry Road Baptist Church of East Helena, Inc. v. Unsworth, (9th Cir., Feb. 25, 2009), the U.S. 9th Circuit Court of Appeals held unconstitutional the application of Montana's campaign finance laws to a Church that engaged in limited activities in support of a 2004 constitutional initiative banning same-sex marriage. The Church advertised and hosted a one-time screening of a video in support of the amendment and made petitions available in its foyer for signing. The state Commission on Political Practices held that the Church should have registered as an incidental political committee, and complied with reporting requirements. (See prior posting.) The 9th Circuit, however, held that

the designation of the Church as an "incidental committee" because of its one-time, in-kind "expenditures" of de minimis economic effect violates the Church's First Amendment free speech rights.

The court also held that the Commission's interpretation of "in-kind expenditures" is unconstitutionally vague. Judge Noonan concurring argued that the case should have been decided on Free Exercise grounds. (See prior related posting.) Yesterday's Great Falls (MT) Tribune reported on the decision.

Native Americans Need Amendment To Move Smudging Ceremony Back To Illinois

The Smoke Free Illinois Act that became effective January 1, 2008 broadly bans smoking in any building open to and used by the public. Smoking includes not just cigarettes and pipes, but also "carrying ... any kind of lighted ... weed, herbs, or any other lighted smoking equipment." The statute has no exemption for religious ceremonies. Yesterday the Hancock County (IL) Journal-Pilot reported that all of this has led a group of Native Americans to move their annual Standing Bear Winter Gathering from Illinois to Iowa. An important part of the Gathering is performing the "smudging ceremony." The ceremony involves holding a small bowl with a light amount of smoke coming out of it, and using a feather to guide the smoke over a person being ritually cleansed. Participants want Illinois to follow Iowa's example and enact an exemption from the no-smoking law for religious ceremonies. Spokesman Larry Cooper says that without the exemption, the law would also apply to incense used in Catholic and Hindu services.

SB 1685, creating an exemption for "smoking that is associated with a recognized religious ceremony, ritual, or activity," was introduced in the Illinois legislature on Feb. 19. So far it has only had its first reading in the state Senate.

Former AG Says Irish Charities Bill Mass Card Provision Is Unconstitutional

In Ireland, Sec. 99 of the Charities Bill 2007 bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. The bill was recently passed by both Houses of Ireland's Oireachtas and earlier this week was sent to President Mary McAleese for her signature. According to today's Irish Times, former Attorney General John Rogers says the provision is an unconstitutional infringement of free exercise of religion protected by Article 44 of Ireland's Constitution.

Reactions To Summum Opinion Vary Widely

Reactions by religious groups to yesterday's Supreme Court decision in the Summum case are varied. Some groups, like Liberty Counsel, applauded the decision, saying: "This case means that the government will not be forced to include a display devoted to atheism every time it displays a Nativity scene." Becket Fund was pleased that the Court "recognized an important exception for invited 'private messages' installed on permanent public monuments."

Summum's attorney, Brian Barnard, has a different take on the case. He says the decision opens the way for him to amend the lawsuit to challenge the constitutionality of the 10 Commandments monument that is in Pioneer Park in Pleasant Grove City. (Salt Lake Tribune.) However the Keep the Commandments Coalition says: "This decision vindicates ... the tens of thousands of people who believed in preserving the public display of the timeless values of the Ten Commandments..." (Christian Newswire.)

Groups like the Interfaith Alliance were unhappy with the decision, saying that "it allows communities to favor one religious tradition over another." AJCongress essentially agrees. (JTA). However ADL, normally a supporter of church-state separation says: "The Court's appropriately narrow decision does not disturb the bedrock constitutional principle that government may not favor one religion over another." Finally, Legal Times praises Justice Alito for setting out (in a footnote) the full text of John Lennon's lyrics to the song "Imagine."

Developments On Anti-Semitism In Europe

This week brought two developments regarding anti-Semitism in Europe. According to JTA, British Prime Minister Gordon Brown became the first world leader to sign the London Declaration on Combating Anti-Semitism. The document was adopted last week by representatives of 40 countries at the first London Conference on Antisemitism. The Feb. 19 Jewish Chronicle reports on the Conference. Anti-Semitic incidents in Britain were at an all-time high in January in the wake of the conflict between Israel and Hamas in Gaza.

Meanwhile, in France 80-year old cartoonist Maurice Sinet (known as Siné) was acquitted Tuesday by a French court in Lyon on charges of inciting racial hatred against Jews. The charges In a controversial move last year, Siné was fired from the satirical weekly Charlie Hebdo over an article in which he wrote that Jean Sarkozy, son of French president Nicolas Sarkozy, "would go far in life" as a result of marrying a Jewish heiress and converting to Judaism. The International League Against Racism and Anti-Semitism then pressed criminal charges. JTA reports that the Lyon court based its acquittal on the right to "freedom of expression on religious sentiments," saying that an opinion that is shocking does not necessarily incite racial hatred. (See prior related posting.)

Supreme Court Says Utah City Is Not Required To Place Summum Monument In Park

The U.S. Supreme Court today handed down its decision in the major religion case on this term's docket. In Pleasant Grove City, Utah v. Summum, (Sup. Ct., Feb. 25, 2009), the Court ruled unanimously that a Utah city can refuse to allow a religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there. The city limits monuments to either those directly related to the city's history or those donated by groups with longstanding ties to the community.

Justice Alito wrote the Court's opinion, which was joined by all justices except Justice Souter. Four concurring opinions were also filed. Justice Alito wrote:

although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.

Justice Alito made it clear however that there are still some constraints on government speech, such as the Establishment Clause.

Justice Stevens' short concurrence (joined by Justice Ginsburg) expresses doubt about some of the Court's earlier "government speech" cases. He says that today's decision does "not give the government free license to communicate offensive or partisan messages" that violate the Establishment or Equal Protection clauses. Justice Scalia's short concurrence (joined by Justice Thomas) emphasizes that the park's existing 10 Commandments monument does not violate the Establishment Clause under existing precedent. He writes: "The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire."

Justice Breyer, also writing a short concurrence, says that the "government speech" doctrine needs to be seen as "a rule of thumb, not a rigid category." He looks at whether the city has imposed a disproportionate burden on Summum's freedom of expression. Justice Souter wrote a separate opinion "concurring in the judgment." He rejects the majority's categorical classification of permanent monuments as government speech. He urges that, instead, the Court should ask "whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land."

The decision reverses a ruling by the 10th Circuit in the case below. (See prior posting.) The New York Times reports on today's decision. [Thanks to Joel Sogol for being the first to report this on Religionlaw listserv.]

Presidential Events Around the Country Are Being Opened by Vetted Prayers

In a little-noticed development, President Barack Obama's town halls and speaking events around the country are being opened with invocations from invited clergy. Yesterday's U.S. News & World Report says that in an unprecedented move, the White House is not only asking clergy who are recommended by local politicians to deliver opening prayers, but is requiring vetting of the text with the White House Office of Public Liaison before it is delivered. The practice has so far not engendered controversy because the prayer is delivered before the President arrives at the event, and before cable television begins its coverage.

At least three recent events have followed this pattern: a town hall in Elkhart, Indiana; a speech in Ft. Myers, Florida on the stimulus bill; and an appearance near Phoenix (AZ) to unveil the mortgage bailout plan. At the Phoenix event, the invocation was delivered by a member of the Tohono O'odham Nation. He was required to depart from the Native American practice of improvised prayer, writing his text in advance so it could be e-mailed to the White House. Barry W. Lynn, executive director of Americans United, complained: "The only thing worse than having these prayers in the first place is to have them vetted, because it entangles the White House in core theological matters."

Wiccan Prison Chaplain Loses Equal Protection and Retaliation Claims

In McCollum v. California, 2009 U.S. Dist. LEXIS 13580 (ND CA, Feb. 23, 2009), a volunteer Wiccan prison chaplain claimed that the California Department of Corrections and Rehabilitation has not given him the same access to prisoners and facilities as it gives to chaplains of other faiths, and that it retaliated against him because of his complaints about the treatment of Wiccans in California prisons. The court held that plaintiff had not shown sufficient evidence of disparate treatment to support his equal protection claim. Nor had he proven that the temporary suspension of his volunteer privileges or the failure to hire him for a position for which he applied were because of his exercise of 1st Amendment rights. (See prior related posting.)

Rights Group Charges Continued Religious Infringements At Guantanamo

The Center for Constitutional Rights on Monday released a report titled Conditions of Confinement at Guantanamo: Still in Violation of the Law. The report focuses on conditions during January and February of 2009, saying in part:

The men detained at Guantánamo continue to suffer from religious humiliation and the inability to engage in religious practices. Continued religious abuses include the invasion of privacy and unnecessary forced nudity, the denial of the right to pray communally, and the deprivation of a Muslim Chaplain.

Israeli Court Says Religious Ritual Is Not True Sale of Land for Civil Purposes

In Israel last week, the Petach Tikva District Court handed down an interesting decision intertwining civil and religious property law. The case grew out of a lease of land last year, which was the Sabbatical year in Israel. According to Jewish religious law, observant Jews are to allow their land to lie fallow during that year. Produce grown on Jewish-owned land in Israel during the year is not considered kosher. Some rabbis however have accepted a loophole, allowing produce to be grown on the land if the land is technically "sold" to a non-Jew for the year. This practice, known as "heter mechirah", has become controversial among competing schools of Orthodox rabbis, but Israel's High Court in a 2007 decision effectively required the practice to be recognized. (See prior posting.)

Dei'ah veDibur (Feb. 19) reports that in the Petach Tikva case, the Israel Land Authority sued lessees for illegal use of land they had rented from the Authority. The lessees countered that the Authority has no claim against them because the Authority had "sold" the land to someone else under the practice of "heter mechirah". The civil court ruled, however, that the sale was merely a legal fiction, so the Land Authority still owned the property for purposes of enforcing its lease provisions. Rabbis who oppose the use of "heter mechirah" are pointing to the ruling as further support for their position. If the "sale" is not valid, then, they say, the land is still Jewish-owned and its cultivation is prohibited as a matter of religious law. [Thanks to Religion & State in Israel for the lead.]

Suit Challenges Refusal of College To Rent Space To Chuch

Alliance Defense Fund has announced that a federal lawsuit was filed Monday against Broome Community College in Binghamton, NY. The College has refused to continue renting space in one of its buildings to North Pointe Church for weekly religious meetings. Even though space is rented to other groups, the College terminated the church's rental agreement after objections were lodged by a few individuals who had seen an ad for the church's meetings. The complaint (full text) in North Pointe Church v. Moppert, (ND NY, filed 2/23/2009) alleges that for the first time, after these objections, the College told plaintiff of its policy that prohibits the use of campus facilities for "religious services or observances . . . for the benefit of the general public." The complaint alleges that the College's treatment of the Church violates the speech, free exercise and establishment clauses of the 1st Amendment and the due process and equal protection provisions of the 14th Amendment.

UPDATE: A settlement in the case described as "favorable to North Pointe Church" led to a voluntary dismissal on Aug. 18, 2009. Alliance Defense Fund issued a release on the settlement. [Thanks to commenter for this lead and spelling correction.]

Options for IRS In Future Investigation of Living Word Christian Center Are Complex

BNA's Feb. 20 Daily Report for Executives [subscription required] discusses the options available to the Internal Revenue Service after the Minnesota federal district court decision last month in United States v. Living Word Christian Center. (See prior posting.) In the case, the court held that current IRS procedures for opening tax investigations of churches does not comply with legal requirement for pre-approval by a high-level Treasury official. One option for the government is appealing the decision to the 8th Circuit. A letter (full text from BNA, subscription required) to the Department of Justice from Living Word's lawyer, Walter Pickhardt, outlines problems that would be presented if IRS simply attempts to open a new investigation authorized by a higher level official. IRS regulations call for any investigation of tax-exempt status to focus on the three most recent tax years. Thus different years would be involved in any new probe (with only one overlapping year). Also, according to Pickhardt, IRS Regulations would preclude using information already furnished by Living Word as the basis for "reasonable belief" that a new investigation should be undertaken.

Court Refuses To Enjoin Contribution Reporting Requirement For California Prop 8

In ProtectMarriage.com v. Bowen, 2009 U.S. Dist. LEXIS 13059 (ED CA, Jan. 30, 2009), a California federal district court refused to grant a preliminary injunction to excuse the required Jan. 31 filing of semi-annual contribution reports by groups that supported Proposition 8, the contentious anti-gay marriage amendment that passed in California in last November's election. California law requires committees to report the names, addresses, occupations and employers of everyone who contributed $100 or more to the initiative campaign. The information is available on the Secretary of State's website. Plaintiffs allege that contributors, many motivated by their religious opposition to gay marriage, have been subject to threats, reprisals, and harassment. (See prior related posting.) The court found little likelihood of success on the merits of plaintiffs' First Amendment "as applied" challenge to the reporting requirements. The court rejected plaintiffs' arguments that Supreme Court precedent protecting the privacy of contributors to minor parties applies here. Here plaintiffs were part of a majority and the level of harassment alleged did not reach that threatened in those minor party cases.

Virginia Senate Committee Rejects Bill To Allow Sectarian Prayer by Police Chaplains

Yesterday a Virginia state Senate committee rejected a House-passed bill that would have specifically permitted volunteer State Police chaplains to deliver sectarian prayers at departmental ceremonies. HB 2314 was a reaction to a directive issued last September by the State Police Superintendent ordering the State Police department's 17 volunteer chaplains to deliver only non-denominational prayers at government sponsored events. This led to resignation of six officers from their chaplaincy duties. (See prior posting.) The House version of the bill would have permitted police chaplains to pray according to their own consciences, but would have required a disclaimer in printed programs for police events to emphasize that the invocation was not approved or reviewed by the police department. Yesterday's Hampton Roads Virginian Pilot reports that in the Senate Courts of Justice Committee, the 8-7 party line vote which came after nearly an hour of debate effectively retains the ban on chaplains invoking the name of a specific religious deity. Del. Charles W. "Bill" Carrico Sr., sponsor of HB 2314, characterized the Senate committee defeat of it as persecution of the Christian faith.

Consultant Says Rubashkin Indictments Influenced By Jewish Stereotypes

The Des Moines (IA) Register reports on Monday's federal district court hearing on motions challenging the 97-count indictment of Sholom Rubashkin, a former executive of kosher meat producer, Agriprocessors, Inc. (See prior posting.) Rubashkin, a Hasidic Jew, was indicted last year on charges of immigration fraud, bank fraud and failure to pay cattle producers. A consultant hired by defense lawyers says that grand jury members' perceptions of Rubashkin were gradually influenced by grand jury testimony suggesting Jewish stereotypes. Prosecutors say that the claims take small pieces of grand jury testimony out of context and, in any event, that Rubashkin was not prejudiced by any bias that the grand jury felt.

Cert. Denied In Two Cases Involving Religious Exercise Issues

Yesterday the U.S. Supreme Court denied certiorari in Morrison v. Board of Education of Boyd County, (Docket No. 08-701) (Order List.) In the case, the U.S. 6th Circuit Court of Appeals had denied a Christian high school student and his parents standing to challenge a school's now-abandoned speech code and related anti-harassment training. Plaintiffs alleged that the speech code prevented Christian students from expressing their views that homosexuality is sinful. (See prior posting.) 365Gay News reported yesterday on the decision.

Yesterday the U.S. Supreme Court also denied certiorari in Friday v. United States, (Docket No. 08-6651). (Order List.) In the case, the U.S. 10th Circuit Court of Appeals upheld the criminal prosecution of a member of the Northern Arapaho Tribe, for killing a bald eagle so he could use it in his tribe's Sun Dance. The court found that the Bald and Golden Eagle Protection Act, and the regulations under it, were narrowly drawn to further a compelling governmental interest. (See prior posting.) The case had generated unusual interest among press groups who were concerned about the 10th Circuit's extensive review of constitutional facts. (See prior posting.) Yesterday's Hays (KS) Daily News reported on the denial of cert.

Environmental Requirements Delay O.K. of Hillel Building On California Campus

At the University of California, San Diego, Hillel (the Foundation for Jewish Campus Life), has been attempting for 5 years to get approval to build a new Jewish student center near campus. As reported in yesterday's UCSD Guardian, a California appellate court has agreed with an environmental group that the proposed building may have substantial environmental effects so that an environmental impact statement relating to traffic and parking, biological resources and aesthetics and community character is required. In Taxpayers for Responsible Land Use v. City of San Diego, (CA Ct. App., Feb. 18, 2009), a California appellate court, while imposing the new environmental requirement, rejected claims of procedural defects in the city's sale of the land to the Hillel Foundation.

RLUIPA Lawsuit By Church Over Approval of Concert Site Is Settled

Yesterday's Pittsburgh Post-Gazette reports on the settlement of a RLUIPA lawsuit brought by the Church of Universal Love and Music against Fayette County, Pennsylvania. The church was seeking rezoning or a special exception so it could continue to use property in an agricultural area for religious concerts. County officials claimed that concert venue founder William Pritts did not claim that his organization was a church until zoning problems arose. (See prior posting.) A confidentiality agreement prevented disclosure of terms of the settlement which is merely described as "mutually satisfactory."

Supreme Court Grants Cert In Sunrise Rock Cross Case

The U.S. Supreme Court today granted certiorari in Salazar (Interior Secretary) v. Buono (Docket No. 08-472, cert. granted 2/23/2009). (Order List.) In the case, a panel of the 9th Circuit found Establishment Clause problems with Congress' transfer of the Sunrise Rock Cross in the Mojave Preserve war memorial to the VFW. Five judges dissented from the 9th Circuit's denial of en banc review, writing a long opinion saying there that there was no evidence that the government would maintain or support the Sunrise Rock Cross after its transfer. (See prior posting.) The Justice Department has posted the government's petition for cert. which raises both questions of the lower court's ruling on standing as well as its application of Establishment Clause doctrines to the sale of real property as a way to rid the government of Establishment Clause problems. Here is respondent's brief in opposition (from SCOTUS blog), and the government's reply brief. [Thanks to Derek Gaubatz for the lead.]

Timothy Dolan Named Archbishop of New York

Pope Benedict XVI today appointed 59-year old Milwaukee Archbishop Timothy M. Dolan to be the new Archbishop of New York. AP reports that Dolan, who succeeds retiring Cardinal Edward Egan, is a defender of Catholic orthodoxy. Dolan has a doctorate in Church History form the Catholic University of America and for seven years was rector of the North American College in Rome. Dolan is well known for his calls to end abortion, comparing it to the moral urgency of ending slavery. However he does not deny communion to Catholic legislators who support abortion rights, saying it is up to each person to decide whether to take communion. In 2004 Dolan was among those archbishops who publicly released the names of priests credibly accused of sexual abuse, though critics say he has not done enough to expose abusing priests in independent religious orders who work in his archdiocese.

Lawsuit Charges Scientology Is Responsible For Man's Suicide

Saturday's St. Petersburg (FL) Times reported on a new lawsuit filed in federal district court in Tampa (FL) against the Church of Scientology and against three individuals. The wrongful death lawsuit seeks damages for the death of Kyle Brennan who committed suicide while visiting his father, a Scientologist who lives in Clearwater (FL). Brennan's mother blames Scientology for the death. The lawsuit alleges that Denise Gentile, twin sister of the Scientology's worldwide leader David Miscavige, (along with her husband Gerald Gentile) convinced Brennan's father to take away Kyle's antidepressant medication. Scientology is strongly opposed to psychiatry and psychiatric medications. The lawyer handling the case, Ken Dandar, previously won a confidential settlement in another long-running high profile wrongful death suit against the Church of Scientology.

City Homeless Shelter Now Operated By Church With Required Prayer

In Hammond, Indiana, a new arrangement between the city and First Baptist Church of Hammond raises interesting church-state issues. Yesterday's Munster (IN) Times reports that when the city-owned Calumet Area Warming Shelter was about to close, the city negotiated an arrangement with First Baptist Church for the church to operate the homeless shelter at church expense while the city retains ownership of the building. The Church is within walking distance of the shelter. Under new rules imposed by the Church, a resident must attend a specified number religious services offered by First Baptist, or church services elsewhere, in order to eat or stay at the shelter. Residents and shelter officials have somewhat different accounts of the number of services at which attendance is required. So far three people have been asked to leave the shelter for non-attendance (or leaving services early) since the Church began operating the shelter as part of its City Rescue Mission Ministry last December 31. [Thanks to Scott Mange for the lead.]

Recent Articles and Book of Interest

From SSRN:

• Andrew F. March, Marriage, Equality and Subsidizing Families in Liberal Public Justification: Is There a Right to Polygamy?, (February, 20 2009).


• Ali Khan, Speech Diversity under Islamic Law, (February 11, 2009).


• Andrew F. March, Are Secularism and Neutrality Attractive to Religious Minorities?, (Islamic Discussions of Western Secularism in the 'Jurisprudence of Muslim Minorities' (Fiqh Al-Aqalliyyat) Discourse, February, 18 2009).


• Natasha Bakht, Objection, Your Honour! Accommodating Niqab-Wearing Women in Courtrooms, (February 2, 2009).


• Geraldine Szott Moohr & Roger Sherman, Book Review: Religion in Criminal Justice by Monica K. Miller, (January 29, 2009).

From the Feb. 2009 issue of Engage:

• Kimberlee Wood Colby, Monumentally Speaking: Pleasant Grove City v. Summum.
• G. David Mathues, Two Visions, Two Results: Making Sense of the Disagreement over the Application of the Ministerial Exception to Teachers in Parochial Schools.
• Stuart J. Lark, Equal Treatment for Religious Expression after Colorado Christian University v. Weaver.

From SmartCILP:

• Anthony A. Braga, David Hureau & Christopher Winship, Losing Faith? Police, Black Churches, and the Resurgence of Youth Violence in Boston, 6 Ohio State Journal of Criminal Law 141-172 (2008).


• Kent Greenawalt, The Cultural Defense: Reflections in Light of the Model Penal Code and the Religious Freedom Restoration Act, 6 Ohio State Journal of Criminal Law 299-321 (2008).

The Journal of Law and Religion, Vol. XXIV, No. 1 (2008-09) has recently been published.

Recent Book:

• Warren J. Blumenfeld, Khyati Y. Joshi & Ellen E. Fairchild (Eds.), Investigating Christian Privilege and Religious Oppression in the United States, (Sense Publishers, Dec. 2008), reviewed in the Ames Tribune.

Justice Department Settles RLUIPA/ Housing Suit With Nashville, TN

The current issue of Religious Freedom In Focus (the newsletter of Justice Department's Civil Rights Division) announces the recent settlement of the Justice Department's civil rights suit against Nashville (TN) that alleged both disability and religious discrimination. The lawsuit claimed violations of the Fair Housing Act and of RLUIPA in Nashville's denial of zoning approval for a residential treatment center to Teen Challenge, a Christian substance abuse program. The consent decree in United States v. Metropolitan Government of Nashville and Davidson County, Tennessee, (MD TN, Feb. 5, 2009), among other things requires Nashville to appoint an FHA and RLUIPA Compliance Officer. It also requires Nashville to give fair housing and RLUIPA training to various of its employees. Nashville will pay a $20,000 civil penalty and damages of $50,000 to individual plaintiffs. Teen Challenge itself has already won a significant jury verdict in the case. (See prior posting.)

Loooking Inside Bible Course In Tennessee High School

Yesterday's Chatanooga (TN) Times Free Press reports on what goes on inside the classroom during teaching of the course on the Bible and its influence on literature, art, music, culture, and politics, authorized by a 2008 law enacted by the Tennessee legislature. (See prior posting.) In the Marion County classroom of high school teacher John Paulsen, many of the copies of the Bible used as a textbook were purchased with funds donated by churches. Paulsen challenges students to think about religion scientifically and to think of science religiously. He walks a fine line, urging students to decide for themselves whether various miracles in the Bible are reported accurately, or are a form of religious mythology.

Recent Prisoner Free Exercise Cases

In Allen v. Hense, 2009 U.S. Dist. LEXIS 11363 (ED CA, Feb. 3, 2009), a California federal magistrate judge concluded that a Muslim inmate had not shown a substantial burden on free exercise in alleging that he was served two meals that did not meet his religious dietary requirements and was met with racial and religious comments when he complained.

In Ashanti v. Tilton, 2009 U.S. Dist. LEXIS 11899 (ED CA, Feb. 18, 2009), a California federal magistrate judge recommended that a preliminary injunction issue requiring a Muslim prisoner to be served a kosher diet to satisfy his religious needs until a proposed Halal meat diet plan is implemented by the prison system. However the magistrate judge recommended denying relief on plaintiff's claim that separate worship space for Muslims should be provided.

In State ex rel. Myers v. Smith, (WI Ct. App., Feb. 18, 2009), a Wisconsin court of appeals affirmed a trial court's dismissal of a prisoner's complaint because it was directed at the wrong individual. In the case, a Wiccan prisoner was attempting to obtain access to a book he argued was needed for spiritual purposes, but which prison authorities claimed was pornographic. The court also agreed that his suit was frivolous and that he could not circumvent regulations by attempting to obtain the book through discovery to prepare his case.

Clinton's Visit To China De-emphasizes Religious Rights Issues

On Friday, Secretary of State Hillary Clinton travelling in Asia held a news conference in Seoul, South Korea (full text) as she was about to leave for China. As reported by AFP, human rights activists were upset by her statements that she would not let human rights concerns interfere with U.S.-Chinese cooperation on the economic crisis, climate change and security issues. As Clinton put it:

We know that we're going to press them to reconsider their position about Tibetan religious and cultural freedom, and autonomy for the Tibetans and some kind of recognition or acknowledgment of the Dalai Lama. And we know what they're going to say, because I've had those conversations for more than a decade with Chinese leaders.

Reuters reports today that Clinton ended her visit in China by attending services at a government-approved church. She also spoke with women's rights activists. These activities were aimed at showing Clinton's commitment to civil and religious rights without offending the Chinese government.

Op-Ed Suggests Compromise On Same-Sex Marriage

An op-ed in today's New York Times suggests an innovative compromise on the divisive issue of gay marriage. This is the crux of the proposal made by David Blankenhorn and Jonathan Rausch:

Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.

British Baroness Urges New Requirements To Stop Muslim Polygamy In UK

In Britain, Baroness Sayeeda Warsi, the Conservative Party’s shadow minister for community cohesion has called for the government to require all religious marriages to be civilly registered within four weeks of being performed. Warsi, herself a Muslim, is pressing for this reform in order to stop Muslim men from taking more than one wife. Currently some Muslim men get around the British ban on polygamy by marrying a first wife in a registered, civil law ceremony and then taking additional wives only in an unregistered religious service. UAE's The National today reports on Warsi's complaint that "cultural sensitivity" is preventing the government from taking action against the increasing incidence of polygamy in Britain. Manzoor Moghal, chairman of the Muslim Forum, however, argues that British Muslims should be able to continue their religious and cultural practices without governmental interference.

Christian Science Wants Health Care Reform To Include Their Practitioners

Yesterday's Ft. Worth (TX) Star Telegram reports that Christian Scientists are monitoring proposed health care reforms because of their interest in insurance coverage for treatment by Christian Science practitioners who treat patients through prayer. Phil Davis, spokesman for the religion, says that accommodations are already made by Medicare, Medicaid, military insurance and federal employees’ insurance. In the Massachusetts, insurance covers stays in Christian Science facilities, but not care by private-duty nurses or practitioners.

Vatican Protests Israeli TV Segment Ridiculing Jesus and Mary

Yesterday's Jerusalem Post reports that the Vatican has filed a complaint with Israel's foreign ministry over an offensive satiric segment broadcast last week on Israeli late-night TV. Israel's Channel 10 comedian Lior Shlein aired the piece in response to the Vatican's lifting of the excommunication of Holocaust-denier, Bishop Richard Williamson. (See prior posting.) The offending piece questioned Jesus' virgin birth and ridiculed the claim that Jesus walked on water by saying "he was so fat he was ashamed to leave the house, let alone go to the Sea of Galilee..." The Vatican complained that Mary and Joseph were "ridiculed with blasphemous words and images" that amounted to a "vulgar and offensive act of intolerance toward the religious sentiments of the believers in Christ." Shlein apologized live on Wednesday, Channel 10 has assured the Israeli foreign ministry that the segment will not be aired again, and the station's attorney has sent a letter of apology to the attorney for a Christian group that was offended. This YouTube clip appears to be the satirical segment that generated the Vatican's concern. [Thanks to Joel Katz for the lead.]

Opinion Available In Mt. Tenaabo Gold Mine Case

The full opinion in South Fork Band v. U.S. Department of Interior, 2009 U.S. Dist. LEXIS 12000 (D NV, Feb. 3, 2009), has now become available. As previously reported, in the case a Nevada federal district court denied a preliminary injunction to prevent Barrick Gold Corp. from beginning to dig a 2,000-foot deep open pit mine on Nevada's Mount Tenabo. (See prior posting.) In the full opinion, the court found that RFRA applies to the case, even though it involves the government's management of its own land. The court found that the tribes bringing suit had standing to do so on their own behalf as well as under the standards of associational standing. However the court found that plaintiffs had not, so far, demonstrated a substantial burden on their religious exercise because they will continue to have access to religiously significant areas. The court also rejected claims under the Federal Land Policy And Management Act and the National Environmental Policy Act. The decision has been appealed to the 9th circuit. (See prior posting.)

California Firefighters Win Damages After Being Forced Into Gay Pride Parade

On Tuesday, a San Diego, California jury awarded four San Diego firefighters damages totalling $34,300 for emotional distress resulting from their being required to participate in San Diego’s 2007 annual Gay Pride parade. Catholic News Agency reports that the four were required to ride in uniform in the parade in their fire truck. They were taunted by sexual remarks and gestures by individuals along the parade route. This was the second trial in the suit against the city. The first trial last October ended with a hung jury. (See prior posting.)

Britain Excludes Westboro Baptist Protesters

Britain's Border Agency this week banned entry into the country of Westboro Baptist Church leaders Fred Phelps and Shirley Phelps-Roper. (BBC News and Kansas City Star). Westboro Baptist has gained notoriety for picketing funerals of veterans in the U.S. with signs denouncing America's toleration of homosexuality. (ADL Report.) In Britain, the pair had planned to picket a drama, The Laramie Project, being performed at Queen Mary's College in Basingstoke. The play focuses on the death of gay student Matthew Shepard, killed in 1998 in Laramie, Wyoming. Phelps-Roper said she would encourage different Westboro member to enter Britain and carry out the planned demonstration. BBC News reports today that only one picketer showed up, and he was heckled away by counter-protesters.

Counsellor Sues After Suspension For Taking Teens To Religious Performance

The Orange County Register and a press release from Pacific Justice Institute report on a religious discrimination lawsuit begun in Orange County (CA) last week. The suit was filed in Superior Court by a counsellor employed by the county-owned Orangewood Children's Home. It charges that plaintiff was suspended for six weeks without pay for taking four teens to an "unapproved religious activity." In June 2006, Counsellor Maureen Loya first took the teens to the Anaheim 5K, but the girls did not like the loud music. So Loya then took them to Huntington Beach Pier's Celebrity Surf Jam where one of the featured bands was playing contemporary Christian music. Last week's lawsuit was filed after first being screened by the California Department of Fair Employment and Housing.

Law Prof Says Pope's Statement Challenges Catholic Judges In U.S.

Law Professor Douglas Kmiec writing for Time Magazine yesterday suggests that a close reading of the statement issued this week by Pope Benedict XVI after his meeting with House Speaker Nancy Peolsi has significant implications for Catholic judges in the United States. The statement was widely reported as a rebuke to Pelosi for her pro-choice positions. (See prior posting.) The Pope's statement (full text) said in part that the Church's teachings on human life

enjoin all Catholics, and especially legislators, jurists and those responsible for the common good of society, to work ... in creating a just system of laws capable of protecting human life at all stages of its development. [emphasis added.]

Kmiec says that previous statements by the Church had implicitly recognized that judges were in a different position than legislators, and the judges had no obligation to change the law when the legislature had not done so. Kmiec says: "the Pope's statement has the potential, at least theoretically, to empty the U.S. Supreme Court of all five of its Catholic jurists....", and may apply to Catholic judges on all courts.

Control Over "Feed the Children" At Issue In Lawsuit

Today's Oklahoman reports on a lawsuit-- whose pleadings are now sealed by the court-- over control of the Christian non-profit relief organization, Feed the Children. The suit, filed in state court in Oklahoma by five former directors of the charity, claims that plaintiffs were unlawfully replaced as board members last December. The new directors, prominent Christian clergy from around the country, were added to the board by FTC founder Larry Jones and board chairman Dwight Powers. Then 6 long-time directors were sent dismissal letters. The lawsuit asks the court to remove the new directors and invalidate all board action taken since December 4.

New Jersey School Proposes Hebrew Track With After-School Religion Classes

After New York's approval of a Hebrew language charter school (see prior posting), a New Jersey official is proposing an alternative arrangement that will be attractive to Jewish parents who may otherwise send their children to private Hebrew Day Schools. The Forward reported on Thursday that the interim superintendent of the Englewood (NJ) school system is suggesting a public-private partnership that would add a Hebrew language immersion track in a public school, and supplement it with privately-financed classes in Judaism as after-school activities. Modeled on the dual English-Spanish curriculum in some New Jersey schools, this program would follow the New Jersey Core Curriculum and students would mix with other students for lunch, recess and music. Interest in the program is fueled by the high cost of private Jewish Day School tuitions. For the Englewood school district that is under a racial desegregation order, the new track could increase racial diversity in the current largely Black and Hispanic district.

Washington State Says Religious Group Can Refuse Gay Volunteers

Page One Q reported yesterday on a decision handed down by the Washington State Human Rights Commission apparently allowing religious organizations to exclude gays and lesbians as volunteers. In March 2008, Tad Erichsen and John Footh were turned away as volunteers by His Supper Table, a meal program operating in Long Beach, Washington. They say the program director, Mike Renfro, told them that their presence would create a hostile work environment. The two men filed a complaint under the state's anti-discrimination law that, among other things, bars discrimination on the basis of sexual orientation. (RCW Chap. 49.60). The Commission issued a decision last month that was communicated to Erichsen and Footh via a phone exit interview. Apparently the decision concluded that the 1st Amendment protects religious organizations in their decisions to exclude volunteers on religious, sexual orientation or other grounds.

Chaplain Lacks Standing In Establishment Clause Challenge To "Five Faiths Policy"

In McCollum v. State of California, 2009 U.S. Dist. LEXIS 11154 (ND CA, Feb. 13, 2009), a California federal district court held that a volunteer Wiccan prison chaplain lacks both traditional standing and taxpayer standing to bring an Establishment Clause challenge to the California prison system's policy of providing paid chaplains for only five faiths-- Protestant, Catholic, Jewish, Muslim, and Native American. As to traditional standing, plaintiff is attempting to assert rights of third parties, i.e. Wiccan inmates. As to taxpayer standing, plaintiff is not seeking to stop the expenditure of state funds, but rather to increase or transfer expenditures to have Wiccan chaplains hired as well. Establishment Clause taxpayer standing extends only to cases where a taxpayer is attempting to lessen expenditures.

UPDATE: As pointed out by a commenter, plaintiff also claimed standing on the basis that creation of a paid Wiccan chaplain position would give him an opportunity to be hired-- something he had been told he was ineligible for currently. The court said that it was speculative whether, even if (as requested) faith-neutral criteria were applied, he would be hired since that depended on needs of Wiccan inmates.

UPDATE: While the Northern District of California denied standing to a chaplain to challenge the 5 Faiths Policy, a decision from last year has just become available through LEXIS in which the Eastern District of California finds that an inmate does have standing to challenge the policy. In Rouser v. White, 2008 U.S. Dist. LEXIS 107199 (ED CA, Sept. 16, 2008), the court also found that plaintiff's complaint alleges "plausible grounds" for relief in his Establishment Clause challenge.

Jewish Army Employee Sues To Challenge Assertion of State Secrets Privilege

Another lawsuit has been filed in the long-running dispute between U.S. Army employee David Tenenbaum and the Department of Defense. In a series of events beginning in 1997, Tenenbaum, an Orthodox Jew, lost his access to classified information and had his security clearance revoked on the basis of unsubstantiated allegations that he was spying for the state of Israel. The government never found sufficient evidence to prosecute Tenenbaum, and a DOD Inspector General's Report issued last year concluded that "Tenenbaum was subjected to unusual and unwelcome scrutiny because of his faith and ethnic background...." (See prior posting). Tenenbaum had attempted previously to bring suit over his treatment, but one of the two major cases he filed was dismissed after defendants claimed that they would be required to disclose state secrets in order to defend themselves. (Tenenbaum v. Simonini, 6th Cir., 2004).

In a suit filed yesterday in a Michigan federal district court, Tenenbaum asserts that he was deprived of his constitutional right to full and fair access to the courts by defendants' false assertion, through sealed affidavits, of the state secrets privilege. The complaint (full text) in Tenenbaum v. U.S. Department of Defense, (ED MI, filed 2/19/2009) alleges that defendants asserted the state secrets privilege "with knowledge and/or in reckless disregard of the fact that no state secrets existed in the Action because there was never any evidence against Tenenbaum." Today's International Herald Tribune reports on the filing of the case.

Catholic Church Campaigns Against Bill That Has Not Been Introduced

Time Magazine yesterday reported on the intensive campaign initiated by the U.S. Conference of Catholic Bishops against Congressional passage of the Freedom of Choice Act, even though the Act has not even been introduced into Congress. In the 108th and 110th Congresses, the Freedom of Choice Act was introduced, but did not pass. It would have essentially codified Roe v. Wade so that if the constitutional basis for the decision were ever reversed, the same right to choose would be protected as a matter of statutory law. (Full text of bill in 110th Congress.) The anti-FOCA campaign has spread fast through the Internet, with a number of exaggerated claims about the law being disseminated. The furor apparently stems for a single remark Obama made as a candidate in 2007 when he told a Planned Parenthood affiliate that the first thing he would do as president is to sign FOCA. Time Magazine says:

FOCA is proving to be the perfect political issue for anti-abortion advocates — and for congressional Republicans, who have taken up the cry as well. Unless and until FOCA is voted on by Congress, they can invoke it as a looming threat. And the longer it remains a dormant issue, the more credit they can take for their own "proactive" efforts to "defeat FOCA"...

Several Catholic groups have attempted to counter fears that the bill is about to be enacted and have tried to correct some of the inaccurate claims being circulated.

British School's Handling of Child's Religious Remarks Brings National Attention

An incident in a British school between two young children is turning into a national controversy. As reported by Ekklesia and by Church Times, last week 5-year old Jasmine Cain, a student at Landscore Primary School in Crediton, upset a classmate by telling her that she would "go to hell" if she did not believe in God and Jesus. Head teacher Gary Read told Jasmine that her remark was inappropriate in the school with children from diverse backgrounds. Jasmine's mother, Jennie Cain, works as the receptionist at the school. Read asked her to make sure that her daughter did not repeat the remark that left her classmate in tears. Now Jennie Cain is challenging the head teacher's actions, saying that her daughter's religious beliefs are not being respected. She sent out e-mails to ten friends asking them for support. When Jennie was asked to stay home while the matter was being investigated, supporters around the country began to speak out. The Archbishop of York said that the school's treatment of Jennie Cain is an affront to the sensibility of Christians. (London Telegraph, Feb. 13.) Now the Governors of the school have set up a special committee to investigate the incident.

West Virginia Proponents of Marriage Amendment Create Controversy

In West Virginia, a group seeking to convince the legislature to propose a state constitutional amendment barring same-sex marriage has created controversy by a nearly 6-minute video it has posted on YouTube and on the WV 4Marriage website. At one point, the video shows a traditional family in the cross hairs of a rifle scope. The narrator says that activists are "working tirelessly to define marriage away from God's design" and says that same-sex marriage has created a crisis for the church. Yesterday's Times of West Virginia reports on the amendment efforts spearheaded by the Family Policy Council of West Virginia. A posting at Edge yesterday contains the video and discussion of further excerpts from it. Churches around the state will support the amendment efforts by participating in "Stand4Marriage Sunday" on March 1.

Somalian Clerics Want Moderate Sharia Nationwide

In Somalia, according to Reuters yesterday, a meeting of over 100 mainly moderate clerics has given the new government of Sheikh Sharif Ahmed, also a moderate, 120 days to declare that all of Somalia will be governed by Islamic law. This will require some amendments to the country's current constitution. The head of the Somali Uluma Council for Correction and Reconciliation says that its demands for Islamic law refer to a moderate version of Sharia, not the strict version that al-Shabab militants have declared after taking control of Baidoa last month.

5th Circuit Holds No Damage Claims Permitted In Prisoner RLUIPA Suits

In Sossamon v. Lone Star State of Texas, (5th Cir., Feb. 18, 2009), the U.S. 5th Circuit Court of Appeals held that a suit for damages (as opposed to injunctive and declaratory relief) is not available under the Religious Land Use and Institutionalized Persons Act. It agreed with the 11th Circuit that damages are not available in suits against officials in their individual capacities. Because RLUIPA was enacted under Congress' Spending Clause Powers, only the governmental recipient of the grant may be liable for a violation. It went on to hold that official-capacity damage actions are barred by the state's sovereign immunity. Agreeing with the 4th Circuit, it concluded that RLUIPA did not clearly alert the state of Texas that it would waive sovereign immunity for damage actions by accepting federal funding. However the court remanded for further proceedings plaintiff's claim for injunctive and declaratory relief. Plaintiff objected to the prison's policy of prohibiting congregational worship in the prison's chapel. He claimed that alternative worship venues do not give him access to Christian symbols or furnishings such as an altar or cross. [Thanks to Carol Gardner for the lead.]

4th Mexican State Places Pro-Life Amendment In Its Constitution

The Mexican state of Colima has become the fourth Mexican state to adopt a pro-life amendment to its state Constitution. LifeSite News reports that on Tuesday, state legislators unanimously adopted the amendment which provides in part: "Life is a right inherent in every human being. The State will protect and guarantee this right from the moment of conception." The amendment came after the legislature last month rejected a proposal to legalize abortion. Sponsors of the amendment say it was not religiously motivated. The legislative committee report on the bill says it is based on medical evidence. Similar amendments have been passed in the Mexican states of Baja California, Sonora, and Morelos. A suit is pending in Mexico's Supreme Court challenging the constitutionality of the Baja California amendment. (LifeSite News, Jan. 30).

Church Sues Illinois City Over Building Permit Delays

In Cicero, Illinois, a growing Spanish-language Mennonite congregation has filed a federal lawsuit seeking to force the city to process its building permit application and also seeking damages. The complaint (full text) in Sonido de Alabanza v. Town of Cicero, (ND IL, filed 2/18/2009), alleges that the city failed for a year-and-a-half to inform the church of the formal requirements that it submit drawings and a contractor contract in applying for a permit. Instead the city led the Church through a separate process that the Church believed was correct, only to later be told by the Building Department that this was not the appropriate route. The lawsuit alleges free exercise and RLUIPA violations, violations of the Illinois Religious Freedom Restoration Act, as well as violations of other of its 1st and 14th Amendment rights. In a press release announcing the filing, the Church said: "Ironically, while the SDA church has experienced two years of delays, a nearby liquor store ... has not only had plans approved but has completed construction and is open for business."

Court Says Eagle Feather Provision Violates RFRA

In United States v. Wilgus, (D UT, Feb. 17, 2009), a Utah federal district court held federal provisions that discriminate against non-Native American adherents of Native American religions violate their rights under the Religious Freedom Restoration Act. The ruling came in a challenge to convictions in two separate cases that had been remanded to the court by the U.S. 10th Circuit Court of Appeals in a 2002 opinion. Members of federally recognized tribes can apply to obtain feathers for ritual use from the National Eagle Repository. Non-Native American adherents cannot apply and, under the Bald and Golden Eagle Protection Act and the Migratory Bird Treaty Act, are subject to prosecution for possessing eagle feathers. The court held that the government has failed to carry the burden of showing that this complete ban on non-Native Americans is the least restrictive means of furthering its compelling interest of protecting eagle populations and Native American culture. AP yesterday reported on the decision.

Producer Says Pennsylvania Business Name Statute Violates 1st Amendment

The name of a corporation or limited liability company that is included in the articles it files with the state is generally subject to certain restrictions, usually to prevent duplication of names. Pennsylvania, however, also prohibits certain words from being used in the name of a business association. 19Pa. Code Sec. 17.5 provides that "An association name may not contain words that constitute blasphemy, profane cursing or swearing or that profane the Lord's name." The New York Times reports yesterday that a lawsuit has been filed in federal district court by filmmaker George Kalman challenging the constitutionality of that provision. Kalman wanted to name his production company "I Choose Hell Productions," to reflect the philosophical theme of his movies. In 2007, articles with that name were rejected because of the blasphemy and profanity prohibition, and he ultimately refiled under the name "ICH Productions LLC". Kalman's suit asserts that the statute violates the Establishment Clause because it prescribes a religious standard that was used in rejecting his filing. He also asserts that it violates his free expression rights, giving to state employees the discretion to reject business names that offend them.

Illinois Immigration Detainees Will Get More Clergy Visits

Yesterday's Chicago Tribune reports that religious groups have begun training around 30 volunteers who will pay visits to individuals being held in county jails awaiting federal deportation. The Access to Religious Ministry Act, passed by the Illinois legislature last December, will go into effect June 1. It requires jails to give reasonable access to religious workers to visit immigration detainees. Currently Illinois jails only permit religious visits for two hours a month to the rotating group of 750 deportees held in jails under contract with the Immigration and Customs Enforceement Agency. [Thanks to Joel Katz for the lead.]