Religion Clause

Monday, March 09, 2009

Sunday, March 08, 2009

Recent Prisoner Free Exercise Cases

In Smithback v. Crain, (5th Cir., March 5, 2009), the U.S. 5th Circuit Court of Appeals held that a prisoner's religious exercise was not substantially burdened by a prison rule that prohibits drawings or messages-- including religious ones-- on the outside of envelopes being mailed from prison.

In Strope v. Cummings, 2009 U.S. Dist. LEXIS 15720 (D KS, Feb. 26, 2009), a Kansas federal district court found no substantial burden under the 1st Amendment or RLUIPA on an inmate's free exercise rights, rejecting allegations relating to religious call outs, the amount of time for Sabbath services and the quality of kosher food. In a related decision involving the same prisoner, in Strope v. McKune, 2009 U.S. Dist. LEXIS 15730 (D KS, Feb. 27, 2009), the same court rejected a related complaint regarding the availability and quality of kosher food.

In Plater v. Superintendent, Cayuga Correctional Facility, 2009 U.S. Dist. LEXIS 16225 (ND NY, March 2, 2009), a New York federal district court held that in a prisoner's challenge to denial of good time credit for failing to complete the prison's alcohol and substance abuse program, the prisoner had procedurally defaulted on his First Amendment challenge to the program. Also his challenge was vague and conclusory.

In Gresham v. Granholm, 2009 U.S. Dist. LEXIS 16092 (WD MI, Feb. 25, 2009), a Michigan federal district court rejected a prisoner's challenge to the prison's no-smoking rule. Plaintiff alleged that his right to practice his religion of white witchcraft was infringed by the rule. The court also rejected plaintiff's equal protection and 8th Amendment claims.

In Proverb v. O'Mara, 2009 U.S. Dist. LEXIS 16078 (D NH, Feb. 13, 2009), a New Hampshire federal magistrate judge, recommending dismissal of an inmate's free exercise claim, held that attendance at Bible study groups was not essential to the exercise of plaintiff's religious beliefs where no other denial of access to religious programming, services, or materials was claimed. Plaintiff had been denied access to Bible study classes for several months. Among plaintiff's numerous other claims, the court permitted him to move ahead with a challenge to a correctional officer's actions in forcing plaintiff to repeatedly state "I love Black people."

In Nickles v. Taylor, 2009 U.S. Dist. LEXIS 16832 (D NJ, March 4, 2009), a New Jersey federal district court dismissed plaintiff's challenge to the practice of furnishing Muslim inmates vegetarian meals, but not Halal meals containing meat. The court however said plaintiff could reopen the case if he is able to supplement his pleadings to demonstrate that his claim is not controlled by a prior 3rd Circuit decision on which the court relied.

Ireland Proposing to Relax Ban On Religious Advertising

Today's London Times reports that Ireland's Communications Minister Eamon Ryan plans to introduce amendments to a broadcasting bill currently being considered by the Oireachtas (Ireland's Parliament) to relax the ban on religious advertising. Currently the Broadcasting Act bans all ads "directed towards a religious end." (See prior posting.) The planned amendments would retain a ban on religious groups using ads to recruit members. However language that would call for proportionality in applying the law would eliminate current bans on such things as ads for first Holy Communion gifts and similar ads for meaningful Christmas gifts that had been proposed by the organization Veritas.

Globe Publishes Interview With Geert Wilders

Today's Boston Globe carries an interview with Geert Wilders, a member of the Dutch Parliament known for his anti-Muslim views. Last month the British government denied Wilders entry to the country after he was invited to show his controversial video "Fitna" in the British Parliament. (See prior posting.) Here is an excerpt from Wilders' Globe interview:

Islam and freedom of speech are incompatible. Cultural relativism makes it difficult to fight, because cultural relativism says that Islam is the same as Christianity. Europe is being Islamized very, very quickly. In our prisons, we have a mark in every cell indicating the direction of Mecca.... People are getting beaten up on the streets of Amsterdam and Brussels for drinking water during Ramadan. We should have a sense of urgency.

Saturday, March 07, 2009

Connecticut Catholic Conference Wants Protections For Objectors To Same-Sex Marriage

On Friday, the Connecticut General Assembly's Joint Judiciary Committee held a hearing on Raised Senate Bill No. 899 that was introduced last month to implement the state Supreme Court's 2008 decision validating same-sex marriages. (Bill status.) (See prior posting.) The bill would recognize same-sex unions from other states and would merge Connecticut civil unions into marriages. One provision in the bill guaranties that clergy will not be required to solemnize same-sex marriages when doing so would violate their religious beliefs. According to Saturday's Hartford Courant, the Catholic Conference is asking the legislature to expand that provision to also protect individuals such as florists, wedding photographers and justices of the peace who refuse to be involved in same-sex wedding ceremonies.

Canadian Conscientious Objector Is Prosecuted For Refusing To File Census Form

In Brockville, Ontario, religious conscientious objector Todd Stelmach is defending himself in a prosecution under Canada's Statistics Act. Yesterday's Brockville Recorder & Times reports that Stellmach refused to file his 2006 census form because the software and data processing equipment for Canada's 2006 census was supplied by a subsidiary of U.S. defense contractor Lockheed Martin Corp. Stellmach objects to the fact that Lockheed profits from the Iraq war and has moral objections to Lockheed's manufacture of cluster bombs. Stellmach told the court that his church supports his beliefs. Stellmach is registered as a conscientious objector with the Free Methodist Church of Canada. If convicted, Stellmach faces a $500 fine and up to 3 month in jail.

New Information Shows Reagan Pressed Gorbachev On Religious Issues

Today's Wall Street Journal carries a fascinating article disclosing previously unreleased information about negotiations in 1988 between U.S. President Ronald Reagan and Soviet leader Mikhail Gorbachev. In their fourth summit meeting, Reagan made a strong plea for religious tolerance inside the Soviet Union and then moved to try to convince Gorbachev that he should personally believe in God.

D.C. Circuit Upholds Firefighters' Victory In Challenge To Ban On Beards

In Potter v. District of Columbia, (DC Cir., March 6, 2009), a case brought under the Religious Freedom Restoration Act, the D.C. Circuit Court of Appeals affirmed a district court's grant of summary judgment barring enforcement of a grooming rule against firefighters who wear beards for religious reasons. (See prior posting.) The D.C. Department of Fire and Emergency Services justified a rule that required personnel who wear face masks to be clean shaven on the ground that this was necessary for effective use of the breathing equipment used in firefighting. The Court of Appeals held that the District of Columbia, however, had already conceded that one type of respirator could safely be worn by bearded firefighters, and that these firefighters could be deployed in fire areas that permitted use of this type of equipment.

Judge Williams concurring complained that: "Unfortunately for the District, its own muddled litigation strategy rendered summary judgment for the plaintiffs a legitimate outcome." He focused on the fact that OSHA regulations-- although they do not apply to the D.C. government-- consider facial hair a problem for all kinds of respirators. The BLT reports on the decision.

Friday, March 06, 2009

German Court Orders Berlin's Anti-Scientology Poster Removed

In der Scientology Kirche Berlin v. das Land Berlin, (Berlin Administrative Court, Feb. 27, 2009) (full text in German), the Berlin Administrative Court ordered removal of an anti-Scientology kiosk that had been placed in front of Germany's Berlin Scientology Church by the government of the City of Berlin. Germany considers Scientology a business that takes advantage of vulnerable individuals. Intelligence officials have been monitoring its activities after last year considering opening formal proceedings to totally ban the Church. (See prior posting.) According to a press release from Scientology officials, the Administrative Court's decision found that in placing the large "Stop Scientology" poster on the kiosk, the city had violated the government's duty to remain neutral on religious matters. The action, according to the court, infringed Scientology's right to human dignity and to religious freedom under Arts. I and IV of Germany's Constitution. [Thanks to Susanne Reinthal for the lead.]

Proposed Oklahoma Resolutions Criticize Pro-Evolution Teaching At State University

Two House Resolutions recently introduced in the Oklahoma legislature express concern with teaching of evolution at the University of Oklahoma and oppose the invitation that has been extended to British biologist Richard Dawkins to speak on campus. HR 1014 and HR 1015 [Word.docs] are similar in content and deal with both concerns. Here is a portion of HR 1014:

[T]he Oklahoma House of Representatives hereby expresses its disapproval of the current indoctrination of the Darwinian theory of evolution at the University of Oklahoma and further requests that an open, dignified, and fair discussion of this idea and all other ideas be engaged in on campus which is the approach that a public institution should be engaged in and which represents the desire and interest of the citizens of Oklahoma
.
...[T]he Oklahoma House of Representative strongly opposes the invitation to speak on the campus of the University of Oklahoma to Richard Dawkins of Oxford University, whose published statements on the theory of evolution and opinion about those who do not believe in the theory are contrary and offensive to the views and opinions of most citizens of Oklahoma.

[Thanks Pharyngula via Scott Mange for the lead.]

Vatican Tells ICANN That Religious gTLDs Are a Problem

The Register yesterday reports on a Feb. 20 comment letter (full text) from the Vatican to ICANN expressing concern over the possible approval of Internet top level domain names that reflect religious traditions. The letter reads in part:

the Holy See would like to bring to the attention of the Board of ICANN the possible perils connected with the assignment of new gTLDs with reference to religious traditions (e.g., .catholic, .anglican, .orthodox, .hindu, .islam; .muslim, .buddhist, etc…). These gTLDs could provoke competing claims among theological and religious traditions and could possibly result in bitter disputes that would force ICANN, implicitly and/or explicitly, to abandon its wise policy of neutrality by recognizing to a particular group or to a specific organization the legitimacy to represent a given religious tradition.

A Feb. 24 response suggests that the proposed process for established institutions to file community objections to a proposed gTLD application may be a method of dealing with the Vatican's concerns, but seeks further consultations on the issue.

Save the National Day of Prayer Effort Begun

In response to a lawsuit filed last October challenging the federal law that designates the first Thursday in May as a National Day of Prayer (see prior posting), Alliance Defense Fund has begun a "Save the National Day of Prayer" campaign. Through a special website it is encouraging individuals to send a note of encouragement to NDP Task Force chair Shirley Dobson and to sign a petition to President Obama encouraging him to again this year issue a Presidential proclamation declaring a National Day of Prayer. Federal law, 36 USC 119, already requires the President so issue such a proclamation. CitizenLink reported yesterday on ADF's efforts.

Lithuania Will Pay Compensation For Confiscated Jewish Property

RIA Novosti reported yesterday that the government of Lithuania will pay $41 million in compensation for Jewish property taken by the Nazis in World War II and then retained by the Lithuanian government. The Justice Ministry's draft plan will be submitted to three Jewish social organizations for final approval. This arrangement covers property other than synagogues. Synagogues have already been returned to Jewish communities. [Thanks to Religion & Public Policy for the lead.]

Thursday, March 05, 2009

Minnesota License Photo Bill Objected To By Muslims

A bill introduced into the Minnesota legislature last month, HF No. 989, has created concern among Muslims in the state. It would require that divers' licenses carry a photo showing the full head an face of the licensee. Many Muslim women who wear a head scarf for religious reasons object. State Rep. Steve Gottwalt, sponsor of the bill, says the bill is not about religion, but about public safety, according to a report last Sunday by WCCO.

UPDATE: Thursday's Tulsa World reports on a similar bill pending in the Oklahoma legislature. HB1645 passed the Oklahoma House, but its fate in the Senate is uncertain since the Department of Public Safety sees no need for the bill.

UPDATE: Thursday's Minneapolis Star-Tribune reports that the sponsor of the Minnesota bill now says he will amend it to permit individuals to wear haead coverings for religious or cultural purposes in license photos. This language would track the standards used for U.S. passport photos.

Yemeni Jewish Commuinty Protests Verdict In Murder Trial

Yesterday's Yemen Times reports that the Jewish community in Amran, Yemen is unhappy with the outcome of the murder trial of Abdul-Aziz Al-Abdi, a Muslim and a former Air Force pilot. Last year, Al-Abdi sent a letter to the Jewish community warning that he would kill them unless they either converted to Islam or left the country. Al-Abdi then shot and killed Masha al-Nahari. The court ruled that Al-Abdi, who previously murdered his wife, should be committed to a mental institution, and that Al-Abdi's family should pay YR 5.5 million ($27,480 US) as compensation to the family of the murder victim. The Amran Jewish community has issued a statement calling for a reversal of the verdict and the imposition of the death penalty instead-- even though Al-Abdi's family has threatened more killing of Jews if the death penalty were imposed. Human rights advocates say the verdict will increase hatred against Jews and some believe it will push the remaining Jews in Yemen to leave for Israel.

Religion In Schools Lawsuit Settlement Draws Community Concern

On Monday, the Santa Rosa County, Florida School Board met to approve the final draft of a consent decree in a lawsuit brought against it by the ACLU challenging religious practices in schools. (See prior posting.) Santa Rosa's Press Gazette reports on the agreed-upon terms. Prayers will not be delivered at school events. Schools will no longer sponsor religious baccalaureate services. School events will not be held at religious venues if a reasonable alternative location is available. School personnel cannot promote their personal religious beliefs to students in class or in conjunction with school events. While some churches have reacted to the lawsuit by planning a privately-sponsored baccalaureate service (see prior posting), other religious groups in the community are more in a protest mode. Reverend Matthew Cotten has created a group called OK2Pray that will meet in front of Pace High School on a Saturday later this month. And according to North Escambia.com, on another Saturday this month, some 14 churches will meet on the baseball field at Jay High School to pray for the students to "encourage them to stand in their faith."

UPDATE: On May 6, the Florida federal district court approved the consent decree (full text) in Doe v. School Board for Santa Rosa County, Florida, (ND FL, May 6, 2009). (ACLU Press Release).

Christian Teachers Question Britain's Proposed Code of Conduct

In November 2008, the General Teaching Council for England published for comment a Draft Code of Conduct and Practice for teachers. GTCE is the professional regulatory body for teaching, and the Code is an attempt to "set out in one place the expected norms of teachers' professionalism and practice, which apply to all teachers, no matter what subject or age of children they teach, their role or level of experience, or the context in which they work." (FAQ). (Also see additional background material.) LifeSite News reported yesterday that Christian and other religious groups are concerned about one of the draft Code's eight principles which calls on teachers to "promote equality and value diversity." Expanding on the principle, the Code calls on teachers to "proactively challenge discrimination." Opponents say this could be read as an attack on the right of publicly-funded faith schools to select leaders of their own religion. They also argue that requiring Christian teachers to proactively oppose homophobia is essentially ordering them, in violation of their religious beliefs, to promote homosexuality as normal and acceptable.

Competing Texas Groups Want To Use Episcopal Disocese of Ft. Worth Name

The Episcopal Diocese of Ft. Worth (TX) is one of a number of congregations and dioceses that have disaffiliated from the Episcopal Church USA and affiliated with the more conservative Anglican Province of the Southern Cone. According to Virtue Online yesterday, the first steps have now been taken in a legal battle over use of the name "Episcopal Diocese of Ft. Worth." After the diocese broke away, the Episcopal Church appointed a new Provisional Bishop for the continuing ECUSA diocese. The Chancellor of the ECUSA diocese has written the break-away bishop, Jack Iker, requesting that he cease using the name, logo and emblems of the "Episcopal Diocese of Ft. Worth," and that he turn over the diocesan seal. The Episcopal Diocese of Fort Worth, with Bishop Iker as its head, however is the group incorporated under that name by the Texas Secretary of State. Another group cannot, under state law, incorporate using the same name.

Tony Blair Interviewed On Religion In Britain

Yesterday's London Telegraph reports on an interview with former British Prime Minister Tony Blair published in the Church of England Newspaper. Blair, who converted to Catholicism after he left office, lamented: "in general terms in British society there is a risk that people see faith as a personal eccentricity." He added: "The real test of a religion is whether in an age of aggressive secularism it has the confidence to go out and make its case by persuasion." Blair also talked about the controversy while he was Prime Minister between the government and Catholic adoption agencies over adoption by same-sex couples.

Wednesday, March 04, 2009

Preliminary Injunction Denied Over Louisiana University's Speech Rules

AP reports that yesterday a Louisiana federal district judge refused to grant a preliminary injunction in a suit against Southeastern Louisiana University by a traveling evangelist who sued to challenge the University's policy that requires administrative approval one week in advance for an individual to make a speech or presentation on campus. Evangelist Jeremy Sonnier was holding a sign and speaking with students near a campus plaza when a campus police officer informed him of the permit requirement. A dispute between them followed. (See prior related posting.)

Spectre of Legal Polygamy In Canada Raises Tax, Retirement, Insurance Issues

With a constitutional challenge pending in Canada to British Columbia's anti-polygamy laws (see prior posting), an investment professional is already looking at a number of collateral legal issues that will arise if polygamy is legalized. Morningstar today carries an article by Steven G. Kelman suggesting that changes in pension, retirement plan and income tax laws will be needed. Among the issues that will need attention are whether more than one surviving spouse can receive the now tax-deferred rollover of spousal assets. Meanwhile private insurance companies will need to rethink the premiums and coverage of health insurance that includes spouses.

Decision Reflects Limited Success In Hindu Challenge To California Textbooks

California Parents for the Equalization of Educational Materials v. Noonan, 2009 U.S. Dist. LEXIS 15889 (ED CA, Feb. 26, 2009), is the latest in a series of state and federal decisions involving challenges to the process and substance of 6th-grade social science textbook changes adopted in 2005-2006 by the California State Board of Education. (See prior posting.) At issue is the manner in which Hinduism is portrayed, and the controversy to some extent reflects differences between groups within the Hindu community. In this California federal district court lawsuit, a group of Hindu and Indian parents (CAPEEM) claimed that the adopted textbooks portray Hinduism in a discriminatory and denigrating manner. The court rejected most, but not all, of the challenges filed by CAPEEM.

The court held that CAPEEM lacks standing to bring an Establishment Clause claim charging unlawful Christian and Jewish indoctrination of students since that was not one of CAPEEM's organizational purposes. It also lacks standing to challenge the text book portrayal of religions other than Hinduism. However, the court found that CAPEEM does have standing to complain about the treatment of Hinduism in textbooks and to challenge disparate treatment in the textbook adoption process. On the merits, the court rejected plaintiff's Establishment Clause and equal protection challenges to the portrayal of Hinduism, and plaintiffs' claims that their speech and association rights were infringed. However the court held that plaintiffs survived a summary judgment motion on their equal protection challenge to the textbook adoption process.

Court Lifts TRO In Dispute Between Former Amish Man and Loan Society

In Stoltzfus v. Old Order Amish Helping Program, (ED PA, Feb. 26, 2009), a Pennsylvania federal district court lifted a temporary restraining order it had previously issued in a dispute between an former member of the Amish faith and an organization that loans funds to members of the Amish faith. Today's Lancaster (PA) Intelligencer Journal reports on the background of the lawsuit.

Daniel Stoltzfus operated a metal working business that had borrowed $300,000 from the Old Order Amish Helping Program. Stoltzfus claims that leaders of the Amish Council of Lancaster took various actions against him and his business after he announced he had become a born again Christian. They also objected to Stoltzfus doing business with a Jewish businessman. Stoltzfus was told not to expand his business, and his employees were told to stop working for him or else they would be shunned from the Amish community. Council members attempted to get Stoltzfus' wife to leave him and filed unfounded complaints of child abuse against Stoltzfus. Interest rates on his mortgage were raised and his insurance was cancelled, leading Stoltzfus to default on his mortgage payments. The court's lifting of the TRO was based largely on the fact that many of plaintiff's complaints were already the subject of state court and bankruptcy court adjudications.

9th Circuit Says Respondeat Superior Claims Can Be Asserted Against Holy See

In Doe v. Holy See, (9th Cir., March 3, 2009), the U.S. 9th Circuit Court of Appeals partially affirmed and partially reversed a 2006 Oregon federal district court decision that rejected the Vatican's sovereign immunity claim in a lawsuit against it by a victim of a priest's sexual abuse. (See prior posting.) The 9th Circuit's conclusions were reflected in a per curiam opinion, that was accompanied by a concurrence and a dissent.

The court's controlling opinion first held that while denial of immunity to a foreign sovereign is an appealable order, plaintiff's cross-appeal on whether the claim falls within the commercial activity exception to the Foreign Sovereign Immunities Act is not subject to an interlocutory appeal. The court also concluded that "Doe has not alleged sufficient facts to overcome the 'presumption of separate juridical status'" for the Archdiocese of Portland, Oregon, the Catholic Bishop of Chicago and the Order of the Friar Servants. Thus their acts are not attributable to the Vatican.

In connection with plaintiff's claim against the Vatican for negligent retention, supervision and failure to warn of the abusive priest, the court held that the Holy See is shielded from tort claims because the alleged negligence arose from a discretionary function. However, the court held that the pleadings adequately alleged respondeat superior liability that can be reached under FSIA's tortious act exception:

Doe has clearly alleged sufficient facts to show that his claim is based on an injury caused by an "employee" of the foreign state while acting "within the scope of his . . . employment," as required to come within the FSIA's tortious act exception. § 1605(a)(5).

The case was remanded to the district court for a determination of whether plaintiff can prove these allegations.

Judge Fernandez, concurring, also urged giving the parties additional guidance, saying: "if we had jurisdiction I would not apply the commercial activity exception to this case."

Judge Berzon, dissenting in part, argued that the court has jurisdiction to decide-- and should conclude-- that the commercial activity exception is an alternative ground on appeal on which to affirm the district court's denial of immunity that was based on a different rationale below. Thus she would have permitted plaintiff to proceed with the negligent retention and supervision and the failure to warn claims. She would also have rejected the Vatican's free exercise challenge to jurisdiction, finding that foreign sovereigns are not protected by the First Amendment. AP yesterday reported on the decision. [Thanks to Bob Ritter for the lead.]

Suit Challenges School's Limits on "See You At the Pole" Posters

Yesterday, four sets of parents filed a federal lawsuit against the Wilson County, Tennessee Board of Education and various school officials challenging Lakeview Elementary School's restrictions on student posters advertising the annual "See You At the Pole" prayer event. The school banned posters containing religious references, and required parents to cover over religious references on posters that families had made and had already put on display in the school. The complaint (full text) in Gold v. Wilson County School Board of Education, (MD TN, filed 3/3/2009) alleges that the school's action violates plaintiffs' freedom of speech, the Establishment Clause and the 14th Amendment's due process and equal protection clauses.

The school's limitation on posters was instituted after a federal court in another lawsuit barred Lakeview school administrators and teachers from promoting or taking part in the student "See You At the Pole" event and ordered that any student flyers or posters promoting the event contain a disclaimer indicating the event is not endorsed by the school. That lawsuit broadly challenged activities by a parents' group in the school known as "Praying Parents." (See prior posting.) Alliance Defense Fund issued a press release announcing yesterday's lawsuit. The release contains links to photos of the disputed posters. It also links to Plaintiff's Motion for a Preliminary Injunction and the memorandum in Support of the Motion. Yesterday's Tennessean also reports on the lawsuit.

Tuesday, March 03, 2009

Pennsylvania Buys Bibles For Its Legislators

The Philadelphia Inquirer reported last week that the Pennsylvania state General Assembly spent $13,700 this year purchasing Bibles and other books for legislators to use in taking their oaths of office last month. It has been traditional for decades in the state for each legislator to receive a personalized holy book at government expense at the beginning of each term. They have a choice of over a dozen alternatives. 196 of the 203 members took up the offer this year, with the New American Catholic Bible being the most popular pick. One legislator who used his own Bible to take the oath nevertheless ordered a copy of the Qur'an at state expense because he had always wanted to read it. Americans United yesterday issued a press release criticizing the state's policy.

New Mexico Orders Religious Curriculum In State-Operated Home School Removed

Yesterday's Farmington NM Daily Times reports on the church-state controversy at Family Home School in Bloomfield, NM. The school, begun 11 years ago, is operated in a portable building on the campus of a public elementary school in the Bloomfield School District. It serves children in grades K-4 whose parents have chosen this alternative. Teacher Kathy Harper uses a well-known Christian curriculum purchased from A Beka Academy. Typically home school families and private institutions use the curriculum. Last month, state education secretary Veronica García wrote Bloomfield Superintendent Randy Allison ordering the curriculum to be withdrawn. State law prohibits religious curriculum from being taught in public schools. The school district has requested permission to keep the curriculum until the end of the year to avoid disruption of teaching.

Cameroon Government Will Share Cost of Pope's Visit With Church

All Africa reported yesterday that the government of Cameroon and the Church will share the cost of Pope Benedict XVI's visit to the country later this month. Expenses borne by the Church include transportation and part of the cost of housing for some 120 high-ranking Catholic clergy from around Africa. The government will bear the costs of venues for the Pope's public events as well as items like communication and security. The Pope will meet with Muslim and Protestant leaders, as well as the Bishops of Cameroon.

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.

Monday, March 02, 2009

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.)

Sunday, March 01, 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.

Saturday, February 28, 2009

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.

Friday, February 27, 2009

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."

Thursday, February 26, 2009

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.)

Wednesday, February 25, 2009

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.]

Tuesday, February 24, 2009

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."

Monday, February 23, 2009

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.]