Lots of New Prisoner Free Exercise Cases Available This Week

In Sanders v. Ennis-Bullock, (9th Cir., Feb. 18, 2009), the U.S. 9th Circuit Court of Appeals agreed with the district court that the Arizona prison policy limiting inmates to ten religious audiotapes at a time did not substantially burden plaintiff’s exercise of religion. However it remanded for further findings a portion of plaintiff’s Americans With Disabilities Act claims relating to denial of biaural headphones. (See prior related posting.)

In Garner v. Morales, (5th Cir., March 6, 2009), the U.S. 5th Circuit Court of Appeals vacated a portion of the district court’s summary judgment against defendant and remanded the case for the court to reconsider whether counsel should be appointed, and then to reconsider its rejection of plaintiff's RLUIPA challenge to the Texas prisons grooming policy. Plaintiff, a Muslim, wants to wear a quarter-inch beard. The court however affirmed the trial court's dismissal of plaintiff's First Amendment and Equal Protection claims and of the lower court's holding that sovereign immunity barred damage actions against defendants in their official capacities.

In Adekoya v. Chertoff, 2009 U.S. Dist. LEXIS 16980 (D NJ, March 4, 2009), a New Jersey federal district court refused to permit an immigration detainee to challenge the absence of Halal food at the Bergen County jail unless in an amended complaint plaintiff is able to detail facts distinguishing this from an earlier 3rd Circuit case that denied a similar claim.

In Prentiss v. Clark, 2009 U.S. Dist. LEXIS 16951 (ED CA, Feb. 20, 2009), a California federal magistrate judge dismissed, with leave to file an amended complaint, free exercise, equal protection and RLUIPA claims brought by a Wiccan prisoner who claimed that religious activities for the Wiccan/Pagan Community in his facility were insufficient-- only one hour of worship every Saturday.

In Buckner v. Casaleggio, 2009 U.S. Dist. LEXIS 17310 (D NV, Feb. 27, 2009), a Nevada federal district court permitted plaintiff , an Orthodox Sunnah Muslim, to move ahead with his claim for injunctive relief asserting that his rights under the First Amendment, the Equal Protection Clause and RLUIPA were violated when authorities permitted only joint Juma'h religious services with Nation of Islam members, instead of separate services.

In Echtinaw v. Lappin, 2009 U.S. Dist. LEXIS 17842 (D KS, March 9, 2009), a Kansas federal district court dismissed a Muslim prisoner's claims that his ability to practice this religion is infringed by disruption of worship services, lack of access to religious materials and problems with religious celebrations.

In Perez v. Frank, 2009 U.S. Dist. LEXIS 18241 (ED WI, March 9, 2009), a Wisconsin federal district court refused to grant summary judgment to defendants and permitted two Muslim prisoners to move to trial on a variety of claims. They seeking access to several items of religious property-- primarily certain items of apparel worn to emulate the Prophet Muhammad. One of the plaintiffs seeks halal meals and also object to TB testing that involves subcutaneous injection of substance derived from pork. However 4 defendants were dismissed from the case. Over the past few years, 3 other opinions have been handed down in the case.

In Cabbagestalk v. South Carolina Department of Corrections, 2009 U.S. Dist. LEXIS 18412 (D SC, Feb. 24, 2009), a South Carolina federal district judge accepted the recommendations of a federal magistrate judge to deny a preliminary injunction to a Rastafarian prisoner who objected to a number of aspects of prison rules relating to clothing, food and confinement that interferes with religious services.

In Amaker v. Goord, 2009 U.S. Dist. LEXIS 19327 (WD NY, March 10, 2009), a New York federal district court rejected a claim by a Nation of Islam prisoner that prison authorities were in contempt of a prior injunction by transferring him to another detention facility. The injunction protected plaintiff in the wearing of dreadlocks.

In Musto v. Trinity Food Services, Inc., 2009 U.S. Dist. LEXIS 18589 (MD FL, Feb. 20, 2009), a Florida federal district judge permitted an inmate to move ahead with his First Amendment claim that he was denied "Kosher dietary meals," appropriate Jewish materials, and visits from a Rabbi. The court also permitted plaintiff to proceed with his retaliation claim, and with his RLUIPA claim against individuals in their official capacities for nominal damages.

In Avery v. Chacon, 2009 U.S. Dist. LEXIS 18958 (ND CA, Feb. 10, 2009), a California federal district court permitted plaintiff to move ahead with his claim that a corrections officer confiscated and destroyed his religious and cultural material.

Air Force Investigating Commander's Promotion of Religious Website Video

Today's New York Times reports that the Air Force has begun an investigation into whether its policy on religious neutrality was breached when a commander sent an e-mail to thousands of personnel in her 501st Combat Support Wing in Europe urging them to view an inspirational video on Catholic website. The video promoted by Col. Kimberly Toney depicted the life story of a man born without arms or legs who says his faith in Jesus is what helped him overcome his physical limitations. Apparently some who visited the website were more offended by other items they found there, including one comparing President Obama's support for abortion rights to activities of Hitler.

Interim Guidelines adopted by the Air Force in 2006 provide that "leaders at every level bear a special responsibility to ensure their words and actions cannot reasonably be construed to be officially endorsing nor disapproving any faith belief or absence of belief.... [S]uperiors need to be sensitive to the potential that their personal expressions may appear [to subordinates] to be official..." (See prior related posting.)

UPDATE: As a comment to this posting indicates, the continuing authority of the Air Force's 2006 Guidelines is unclear. The Conference Committee Report for the 2007 Defense Appropriation Act directed the Air Force to rescind the policy and reinstate 1999 Guidelines on the chaplains' service. (See prior posting.) Shortly thereafter, the Air Force did issue new guidelines for chaplains, reflecting its 1999 policy. (See prior posting.) However those new guidelines do not explicitly mention repeal of the 2006 Interim Guidelines. Moreover the new Guidelines govern activities of chaplains, but do not mention responsibilities of commanders regarding endorsement of religion. Finally subsequently the Air Force's publication Air Force Call republished the 2006 Guidelines indicating that they are still in effect.

Appellate Court OK's Order To Remove Bible From Counsel's Table At Trial

A Texas state appellate court has upheld a trial court's order that a criminal defendant in a drug trial remove a Bible that he wanted to have on counsel's table in front of him. Defendant was still permitted to have the Bible nearby, but was required to place it in a less prominent location. In Alexander v. State of Texas, (TX Ct. App., March 11, 2009), the court emphasized that a trial court has inherent power to restrict displays that might detract from orderly proceedings focused on the issues to be tried. Further it concluded that absent a showing that defendant's religion in some way required him to display the Bible, there was no exercise of religion involved in merely having a book displayed to jurors.

Harassment Charges Held Nonjusticiable Under Establishment Clause

In Destfino v. Kennedy, 2009 U.S. Dist. LEXIS 18138 (ED CA, Jan. 8, 2009), plaintiffs filed a wide-ranging complaint against numerous defendants, including a church, alleging that defendants made fraudulent misrepresentations to induce plaintiffs to enter into home and auto loans in a debt elimination program. In part of its decision, a California federal district court dismissed as nonjusticiable allegations that defendants harassed certain of the plaintiffs-- including threatening to cut their son off from Church ministry participation-- when plaintiffs reported the fraud to church elders. Church elders told plaintiffs to remain silent about the charges. The court concluded that these allegations involve church governance and operations so that adjudicating them would violate the Establishment Clause.

Challenge To Inaugural Oath and Prayers Dismissed On Standing Grounds

Just prior to President Barack Obama's inauguration, the District Court for the District of Columbia refused to issue a preliminary injunction to prevent the Chief Justice from administering the oath of office using the phrase "so help me God" and also refused to preliminarily enjoin clergy delivering an invocation and benediction at the ceremony. (See prior posting.) Yesterday in Newdow v. Roberts, (D DC, March 12, 2009), the court dismissed the case entirely finding that plaintiffs lack standing. It concluded that "plaintiffs have failed to demonstrate that an injunction against any or all of the defendants could redress the harm alleged suffered by plaintiffs." The court also held that plaintiff Michael Newdow was precluded from litigating his standing to challenge clergy-led prayers at the inauguration because of his participation in prior litigation that unsuccessfully raised the same issue.

Two days prior to the decision, plaintiffs submitted a motion seeking to file an Amended Complaint (full text of complaint) adding 230 individual plaintiffs and adding the U.S. Secret Service and the U.S. Marshalls Office as defendants. The court's opinion dismissing the case said in a footnote that while it was not yet formally ruling on that motion: "the additional plaintiffs are similarly situated to the current plaintiffs, and the speculative nature about what will occur at the next two Inaugural ceremonies lacks any persuasive value." Bob Ritter, co-counsel for plaintiffs, says that an appeal of the dismissal order is planned. See press materials from Appignani Humanist Legal Center. [Thanks to Bob Ritter for the lead.]

Arizona Appellate Court Upholds Corporate Scholarship Tax Credits

In a 2-1 decision in Green v. Garriott, (AZ Ct. App., March 12, 2009), an Arizona state court of appeals has rejected state and federal constitutional challenges to the state's income tax credit for scholarship contributions from corporations. Contributions are made to non-profit school tuition organizations that use the funds for scholarships to nonpublic schools. 70% of the scholarships are awarded through religious STO's. Rejecting a federal Establishment Clause challenge, the majority said that:

Given the neutrality of the statute, and the multiple layers of private choice that stand between the legislature’s decision to provide a corporate tax credit and the eventual acceptance of scholarship funds by sectarian schools, we do not believe the Establishment Clause has been violated.

The court also rejected the argument that the tax credit violates state constitutional provisions prohibiting the laying of taxes or appropriation of public money to aid any private or religious school. Finally the court rejected the argument that the tax credit violates the state's responsibility , set out in the Arizona Enabling Act, to maintain a system of public schools.

Dissenting in part, Judge Kessler argued that the tax credit raises Establishment Clause problems because "the record raises questions as to the tax program's secular purpose, that Arizona tax scheme is not neutral with respect to religion and does not provide benefits directly to a wide spectrum of individuals defined without reference to religion." He explains:

The statutory scheme does not limit either the STOs or the recipient private schools from discriminating on the basis of religion on who will receive tuition scholarships from the tax credits. Indeed, the complaint alleges both the STOs and the recipient schools do and will discriminate on the basis of religion....

§ 43-1183 has an aggregate annual limit of tax credits. Thus, it is possible ... to have several corporations use the entire aggregate tax credit in any year ... to fund scholarships to one STO, which will only fund schools of one religious denomination....

The Arizona Capitol Times reports on the decision.

Georgia House Passes Bill Permitting Adoption of Embryo

According to a press release by Georgia Right to Life, yesterday the Georgia state House of Representatives pased by a vote of 96-66 and sent on to the Senate the Option of Adoption Act (HB 388). The Act deals with excess embryos created through in vitro fertilization procedures. It provides procedures for legal transfer of such embryos to other women for implantation. The bill not only confirms that the person giving birth to the transferred embryo will be considered the legal parent, but also allows formal adoption of the embryo before birth. The bill appears to permit expedited adoption of the embryo by the "recipient intended parent" even before the embryo is transplanted into the woman's womb. Clarke Forsythe, senior counsel of Americans United for Life, said: "This bill is very timely given the need to humanize the embryonic human at a time when at the federal level embryonic stem cell research is being promoted."

Pope Apologizes For His Outreach To Holocaust Denier

In a letter (full text) to Catholic bishops described by a Vatican spokesman as an "unusual document worthy of great attention" (Zenit), Pope Benedict XVI has essentially apologized for the confusion created by his lifting of the excommunication of Holocaust-denying Lefebvrite Bishop Richard Williamson. (See prior posting.) In an admission that may reflect generational divides as much as anything else, Benedict said:

I have been told that consulting the information available on the internet would have made it possible to perceive the problem early on. I have learned the lesson that in the future in the Holy See we will have to pay greater attention to that source of news.

Much of the Pope's letter focused on his distress over the fact that his action "momentarily upset peace between Christians and Jews, as well as peace within the Church." Then, in a surprisngly candid statement, he continued:

I was saddened by the fact that even Catholics who, after all, might have had a better knowledge of the situation, thought they had to attack me with open hostility. Precisely for this reason I thank all the more our Jewish friends, who quickly helped to clear up the misunderstanding and to restore the atmosphere of friendship and trust which -- as in the days of Pope John Paul II -- has also existed throughout my pontificate and, thank God, continues to exist.

The Pope's letter went on to emphasize that the issue underlying the Church's split with the Society of St. Pius X that ordained Williamson and others is the need for Catholics to accept the pronouncements of Vatican II. He said: "The Church's teaching authority cannot be frozen in the year 1962..."

Moving to assure that Catholic-Jewish relations would continue on a positive note, the Pope met with a delegation from the Chief Rabbinate of Israel and the Holy See Commission for Religious Relations With the Jews. At the meeting, he spoke forcefully of the importance of continued Catholic-Jewish dialogue. (Zenit.) After the meeting, Shear-Yashuv Cohen, the chief rabbi of Haifa, said that the dispute between Jewish leaders and the Pope that followed the Williamson affair is now over. (Zenit.) An AP story (via Institute for Religion and Public Policy) also reports on the Pope's letter.

Saudi Academy In Virginia Makes Some Improvements In Textbooks

Since 2007, the U.S. Commission on International Religious Freedom has been highly critical of the textbooks used by the Islamic Saudi Academy in Fairfax, Virginia. The 900-student school with close ties to the Saudi government operates in a former high school building leased from Fairfax County. It has been charged with using textbooks containing passages that incite religious intolerance and violence. (See prior postings 1, 2.) In response to U.S. criticism, last year the school developed new texts for all grades. Yesterday the AP reported on its review of those new books, concluding:

While the Islamic Saudi Academy deleted some of the most contentious passages from the texts, ... enough sensitive material remains to fuel critics who claim the books show intolerance toward those who do not follow strict interpretations of Islam.

Court OK's Most of Land Seller's Challenges To Muslim Group Zoning Denial

In Moxley v. Town of Walkersville, (D MD, March 6, 2009), plaintiffs alleged that their proposed sale of land to the Ahmadiyya Movement of Islam, Inc. was blocked by government officials and private citizens in concerted actions motivated by anti-Muslim hostility. The 17-count lawsuit alleges violations of RLUIPA, the federal Fair Housing Act and Maryland constitutional, statutory and common law. At issue was Walkersville's denial of a special exception to permit the land to be used for a mosque, a residence for the imam and for an annual 3-day religious event.

In the case, the court dismissed a few of the claims but permitted plaintiffs to proceed with others. The court held that the Town of Walkersville has governmental immunity as to certain of the state law damage claims. It held that RLUIPA claims may not be brought against individual government officials in their personal capacity. The court however refused to dismiss claims at this point against various city officials who had asserted legislative immunity for their challenged acts. It refused to dismiss charges of conspiracy between public officials and private citizens to violate plaintiffs' civil rights in violation of 42 USC 1983 and 1985(3). The court also rejected various qualified immunity defenses. Yesterday the Gaithersburg (MD) Gazette reported on the decision.

UPDATE: An Aug. 27, 2009 AP report says that a settlement has been reached in the case. Terms of the settlement were not disclosed.

Archbishop Criticzes HHS Nominee Sebelius For Her Pro-Choice Views

Catholic Action yesterday published an interview with Kansas City Archbishop Joseph Naumann on his actions regarding Kansas Gov. Kathleen Sebelius, a Catholic who has long supported abortion rights. Sebelius is President Obama's nominee to serve as Secretary of Health and Human Services. Last year Naumann wrote Sebelius asking her not to receive Holy Communion. He says he made the letter public because he was "concerned about others being misled by her presenting herself as a faithful Catholic while holding positions that were completely contrary to our teaching on the sanctity of human life." Commenting on Sebelius' nomination to head HHS, Naumann said:

this just elevates to the national level another Catholic who is inconsistent in the practice of her faith. Now she is joining Vice President Biden, Speaker Pelosi and a whole raft of others in the senate and congress which I think are sending very confusing messages. It certainly is not a reason to rejoice to have yet another Catholic, in a prominent national position, sending a very confusing message to her fellow Catholics by her position on abortion.

... Unfortunately, I think that anyone this president appoints is not going to be someone who is sensitive to the sanctity of human life. That is an unfortunate consequence of the choice of the American people in the last election.

Supreme Court's Asylum Decision Important For Victims of Religious Persecution

Last week the U.S. Supreme Court decided Negusie v. Holder, (Sup. Ct., March 3, 2009). It held the provision in U.S. immigration law that denies asylum to anyone who assisted in persecution of others does not necessarily apply to those whose assistance was coerced. A release from the Becket Fund praising the decision points out that it has important implications for victims of religious persecution. Becket Fund's amicus brief in the case argued: "Authoritarian governments around the world and throughout history have forced religious people to participate in the persecution of fellow believers in order to violate their own consciences. The reason is simple: conscience is a threat to tyranny."

Afghanistan Supreme Court Upholds 20-Year Blasphemy Sentence

Today's International Herald Tribune reports that Afghanistan's Supreme Court last month upheld a 20-year prison sentence for blasphemy imposed on an Afghan university student for distributing an article about the role of women in Islam. Originally 24-year old Parwiz Kambakhsh was sentenced to death, but after international protests (see prior posting) an appeals court imposed the reduced sentence that has now been confirmed by the Supreme Court.

Iran's Attorney General Reaffirms Ban On Baha'is

Iran Press Watch yesterday posted an English translation of a recently-published letter from Iran's Attorney General, Ayatollah Qorban-Ali Dorri-Najafabadi, to the country's Minister of Intelligence, Muhseni-Azheh'i. The lengthy undated letter lays out the basis for the banning of the Baha'i faith in Iran. Here are some excerpts:

Acceptance of multiplicity and diversity in a society is among its instruments of liberty - including freedom of thought and decision.... On this basis, various [political] parties and groups may function legally as long as they do not violate the principles of independence, liberty, national unity, Islamic provisions, and the fundamental laws of the Islamic Republic....

Religious minorities are defined and delineated in the luminous religious law [of the Shiites] and the nation’s Constitution, and except for those enumerated in Articles 12 and 13, no others are permitted to be active....

In consideration of the aforesaid, and the methods, history and record of the political-intelligence organization Baha'ism, they are not among the political parties or legal associations that are licensed for activity, nor are they listed among the divine religions, nor do they meet the definition of religious minorities.

[S]aid organization [i.e. the Baha'i community] has been directly in touch with foreign enemies of the people of Iran, and they have long-established and firm connections with the Zionist regime [Israel]. Moreover, they ... carry out propaganda, teaching, socio-economics, educational, and humanitarian activities, thereby collecting information, penetrating and undermining the foundations of the people’s beliefs.

Therefore, in accordance with policies and instructions previously issued by the Islamic Revolutionary Attorney General ... which prohibited every form of activity by the aforementioned movement [i.e. the Baha'i Faith], once again the same prohibition is promulgated.

EEOC Data Shows Rise In Religious Discrimination Complaints

The U.S. Equal Employment Opportunity Commission yesterday released its enforcement and litigation statistics for the fiscal year ending Sept. 30, 2008. They show an overall 15% rise in workplace discrimination complaints from the prior year. The number of religious discrimination complaints went up 13.6%, from 2,880 in 2007 to 3,273 in 2008. (Charge statistics.) The detailed data on religion-based charges shows that the EEOC found no reasonable cause in 62.5% of the religious discrimination cases. Non-litigation settlements resulted in payment of $7.5 million in damages during FY 2008.

Religious Groups Oppose Proposed NY Limitations Extension For Absue Cases

Today's New York Times reports that Catholic and Orthodox Jewish groups are lobbying hard against a proposed bill that would extend the statute of limitations for filing of civil child sexual abuse cases. The bill, A2596 and S2568, which now has a good chance of passing, would give a one-time one year window for victims to file no matter how long ago the abuse occurred, and then would extend the limitations period to ten years after the victim turns 18. (Background). Catholic Church leaders, who say the bill is designed to bankrupt the Church, are leading the opposition. Recently though they have been joined by leaders of Hasidic and Sephardic Jewish institutions in Brooklyn which may face similar abuse claims. Opponents claim that memories are unreliable as to decades-old events. They also complain that the bill applies only to religious and private institutions, while leaving victims of abuse by public school teachers with a very short statute of limitations-- 90 days after turning 18. [Thanks to Steven H. Sholk for the lead.]

Court Asks For Further Briefing On Praying Employees' Free Exercise Claim

In Shatkin v. University of Texas at Arlington, 2009 U.S. Dist. LEXIS 18018 (ND TX, March 10, 2009), two former employees asserted free speech and free exercise claims after they were fired by the University of Texas for inappropriate conduct. At issue was plaintiffs' praying for a co-employee who they said was "demonically oppressed" by going to that employee's cubicle after work on a day the employee was not there to pray and dab olive oil on the cubicle doorway. The court rejected plaintiffs' free expression claims, finding that as public employees they were protected only for speech made as citizens on a matter of public concern. As to plaintiffs' free exercise claim, the court asked plaintiffs for additional briefing on whether the Pickering test that controls public employee speech also applies to public employees' free exercise claims as contended by defendants. (See prior related posting.)

Minnesota Will Offer First State-Run Shariah-Compliant Home Sales

An editorial in Investor's Business Daily yesterday says that the state of Minnesota is about to become the first to offer a state-run Shariah-compliant home lending program. The Minnesota Housing Finance Agency will buy homes with tax funds and then resell them to Muslim buyers in installment sales at a higher price (in lieu of charging interest). MHFA has posted on its website the Murabaha Agreement that will be used in such sales. The IBD editorial calls for the ACLU or someone else to challenge the state program as a violation of the Establishment Clause.

Turkish Magazine Forced To Scrap Cover Story On Darwin

The deputy head of Turkey's Scientific and Technological Research Council (TUBITAK) apparently pressured the editor of the organization's popular magazine, Science and Technology, to remove this month's planned cover story honoring Charles Darwin on his 200th birthday. Media indicate that the journal's editor was also removed. AFP reported yesterday that the censorship was apparently undertaken by religiously motivated personnel who the government has favored for appointments to senior positions at TUBITAK. Turkish Muslims generally oppose teaching of Darwin's ideas on evolution. State Minister Mehmet Aydin, who oversees TUBITAK, however criticized the suppression of the article, even though he believes that evolution is a "mistaken" theory. [Thanks to Jack Shattuck for the lead.]

Federal Appellate Courts Hear Oral Arguments In Two Cases of Interest

Two cases of interest were argued in federal appeals courts yesterday. The 10th Circuit Court of Appeals heard arguments in Corder v. Lewis Palmer School District No. 38. In the case, a Colorado federal district court below upheld the actions of a high school principal who, in 2006, forced a student graduation speaker to apologize for including unauthorized religious material in her 30-second portion of a joint graduation speech. (See prior posting.) Liberty Counsel, which represents the student appealing the case, issued a press release about the oral argument.

The 6th Circuit heard arguments in Pedreira v. Kentucky Baptist Homes For Children, Inc. In the case below, a Kentucky federal district court dismissed on standing grounds a state taxpayer's Establishment Clause challenge to Kentucky's payment for placement of children in a home that operates a religious-based program. (See prior posting.) USA Today reported on the oral arguments.

9th Circuit Hears Arguments In CLS Challenge To Hastings Law School Rules

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral argument in Christian Legal Society v. Kane. A recording of the full oral argument is available online. In the case, a California federal district court below held that Hastings Law School may apply its policy against discrimination on the basis of religion and sexual orientation to a student religious group seeking formal recognition. (See prior posting.) All the briefs and other litigation documents are available from the Christian Legal Society website. [Thanks to The Center Blog for the lead.]

UPDATE: National Law Journal reports that Judge Kozinski's questioning focused on whether the case was controlled by the court's earlier decision in Truth v. Kent School District-- in which a cert petition has just been filed. (See prior posting.)

DC School Voucher Program Is Effectively Ended By Congress

It appears that Congress has effectively ended the school voucher program in the District of Columbia that has been popular with many parents. More than half of the students receiving vouchers attend religious-- mostly Roman Catholic-- schools. (See prior posting.) HR 1105, the Omnibus Appropriations Act of 2009, precludes use of funds after the 2009-2010 [corrected] school year for programs under the D.C. School Choice Incentive Act of 2003 unless the program is reauthorized by Congress and the District of Columbia approves the reauthorization. [at pg. 307-308 of bill.] The Omnibus Appropriations bill was approved by the Senate yesterday after previously being passed by the House. (New York Times). Originally Congress approved the D.C. voucher plan as a 5-year pilot program. According to a press release yesterday by Americans United detailing developments, it is unlikely that reauthorization and other conditions imposed by the Omnibus Appropriations Act for extending the D.C. voucher program will be met.

Yesterday, by a vote of 39-58, the Senate rejected an amendment offered by Sen. John ensign to eliminate these restrictions on the D.C. Opportunity Scholarship Program. Americans United had sent a letter (full text) to every Senator urging them to vote against the Ensign Amendment. It described the voucher program as ineffective in improving student achievement and says the program raises constitutional concerns.

Kazakhstan Court Reduces Sentence of Unification Church Missionary

In a case that has drawn the attention of international human rights groups, an appeals court in Kazakhstan has reduced the sentence of Unification Church missionary Liza Drenicheva from two years in prison to the two months she has already served. She must also pay a fine of $200 (US) and court costs of $800 (US). Today's Washington Times says that Drenicheva, who had been convicted of a "crime against peace and security of humankind" is now free to return home to Russia. The Unification Church says the woman was merely teaching its views on the doctrine of original sin when she was charged with claiming that certain groups were inferior based on their "tribal and class identity." The Unification Church is still considering an appeal in the case in order to establish the right of its missionaries to operate in the mostly-Muslim nation. Kazakhstan's treatment of minority religious groups has been an ongoing concern as the country prepares to chair the OSCE next year. (See prior related posting.)

Dutch Supreme Court Protects Criticism of a Religion From Group Insult Prosecution

In an important free speech decision Tuesday, the Supreme Court of Netherlands overturned the conviction of a man who had been charged under Article 137c of the Dutch criminal code with making offensive statements about Muslims. In 2004, after the murder by an Islamic extremist of filmmaker Theo van Gogh, defendant hung a poster in his window reading: "Stop the tumour that is Islam. Theo has died for us. Who will be next? Resist now! National Alliance, we will not bow down to Allah. Join now." The Supreme Court held that offensive statements about a religion do not constitute an insult to "a group of people according to their religion" as that term is used in Article 137c. Here is the Supreme Court's news release in Dutch describing the decision. NIS News and NRC Handelsblad both report on the case.

Drawing a fine line in an attempt to protect criticism of a religion, the Court said that Article 137c is not violated "even if that happens in such a way that the devotees feel their religious feelings are hurt." Criticism of behavior or opinions is not outlawed. Only a remark "explicitly" aimed at a group distinct from others based on its religion can be a group insult. The Court said that the same definitions will apply in the pending prosecution of Dutch politician Geert Wilders for inciting hatred and discrimination against Muslims and insulting Muslim worshippers. (See prior posting.)

Cert Filed In Case Challenging Non-Recognition of Christian Student Group

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Truth v. Kent School District. In the case, the 9th Circuit upheld the application of a Seattle, Washington school's rules against religious discrimination to Truth, a Bible study club. The organization was denied recognition as a student group because its charter limits membership to those who sign a statement of fundamentalist Christian faith. (See prior posting.) The cert petition raises issues of expressive association and of interpretation of the federal Equal Access Act. A press release by Alliance Defense Fund announced the filing of the appeal.

Israeli Traffic Court Says Hebrew Birthday Can Count

Arutz Sheva reported last week on an interesting Traffic Court decision in the Israeli city of Nazareth. Under Israeli law, drivers under the age of 21 may carry no more than two passengers. Chaim Frankel was stopped for a random check and charged with violating this law because he had four passengers in his car. In court, Frankel defended on the ground that he was already 21 years old according to the date on the Hebrew calendar. The court agreed. All government communications and documents in Israel use both the Hebrew and Gregorian dates. [Thanks to Religion and State In Israel for the lead.]

New Survey of U.S. Religious Identification Released

Trinity College has released its American Religious Identification Survey 2008. The study, based on questions posed to over 54,000 individuals in English and Spanish, revealed that the number of adults identifying themselves as Christian has slipped to 76% (down 10% since 1990). The sharpest decline has been in Mainline churches, while 34% of the population says they are Evangelical Christians. 25.1% are Catholic. 1.4% are Mormon. Those identifying as having no religious preference has grown to 15% (from 8.2% in 1990). 1.2% of the population identified themselves as Jewish by religion (while a larger number considered themselves ethnically Jewish). This was down from 1.8% in 1990. The Muslim population has risen from 0.3% in 1990 to 0.6% in 2008. Meanwhile, Buddhists account for 0.5% of the population. USA Today and CNN both reported yesterday on the survey. [Thanks to Scott Mange for the lead.]

California Civil Court Asked To Confirm Bet Din's Ruling On Torah Scrolls

Yesterday's Los Angeles Times reports on an unusual suit filed in Los Angeles Superior Court in which the widow of an Orthodox rabbi is asking a civil court to confirm an award by a Jewish religious tribunal. A hearing is scheduled for April 3. The case, Pauker vs. Ohana, involves the attempt since 2002 by the widow of Rabbi Norman Pauker to recover four Torah scrolls that she says were loaned for two years by her husband to his former assistant, Rabbi Samuel Ohana. The 73-year old Ohana, says that Rabbi Pauker gave the Torahs outright to him for his congregation after Pauker's synagogue closed. The bet din (Jewish religious court) apparently credited the validity of a handwritten agreement reflecting a loan of the scrolls and ordered them returned within 30 days. Ohana says his signature was pasted onto the agreement by someone else. He has now appealed to a higher religious court in Jerusalem. Since both parties had signed an agreement to abide by the bet din's ruling, however, Pauker disputes the jurisdiction of the Jerusalem court.

India's Prime Minister Says No Right To Criticize Other Religions

India's Prime Minister Manmohan Singh, speaking today to a group of Muslim girls on the occasion of Milad-un-Nabi ("Birth of the Prophet"), made an interesting assertion about the scope of free speech in the country. Press Trust of India reports that he said: "Our Constitution gives full freedom to the people to practice any religion of their choice, but it does not give anyone the license to criticize or run down other religions." India's Constitution, Art. 19, protects freedom of speech and expression.

City Hearing on Anti-Discrimination Law Generates Religious Arguments

The Kalamazoo (MI) Gazette reports on a hearing held last night by a subcommittee of the Kalamazoo City Commission on a proposed ordinance that would ban discrimination on the basis of sexual orientation. Originally City Commission adopted the ordinance in December, but a month later rescinded it pending further consideration, after petitions protesting the law were submitted. Both sides at yesterday's hearing attended by nearly 200 people invoked religious arguments. Opponents said that the ordinance would victimize religious groups and would discriminate against those whose religious beliefs teach that homosexuality is wrong. Supporting the ordinance, Rev. Matthew Laney, pastor of First Congregational Church, said: "We firmly believe these peoples' orientations are fully compatible with the godly life. They are part of God's diverse creation and God does not make mistakes."

10th Circuit Refuses Release Pending Appeal of Marijuana Church Founders

In United States v. Quaintance, (10th Cir., March 3, 2009), the U.S. 10th Circuit Court of Appeals denied a request by Mary and Danuel Quaintance-- founders of the Church of Cognizance-- for release from prison pending appeal of their convictions for allegedly religious use of marijuana. The Church teaches the use of marijuana as a central tenet. The trial court concluded that defendants' beliefs did not qualify as a religion and were not sincere. At that point, the Quaintances plead guilty, conditioned on the right to appeal their Religious Freedom Restoration Act defense. (See prior posting.) 18 U.S.C. § 3143(b)(1)(B) calls for defendants' release only if their appeal raises a substantial question of law or fact on which they are likely to prevail. The Court of Appeals concluded that this standard was not met.

Court Says Religious Tattoo Was Relevant In Penalty Phase of Murder Trial

In Robles v. Quarterman, 2009 U.S. Dist. LEXIS 17126 (SD TX, March 6, 2009), a Texas federal district court rejected a convicted murderer's free exercise challenge to evidence introduced in the penalty phase of his state court trial. The prosecution introduced into evidence defendant's tattoo that depicted a demon eating Christ's brain. The prosecutor also made reference to the tattoo in closing argument in the penalty hearing. The court concluded that this was permissible since the tattoo was relevant to a material issue, the defendant's violent character and the likelihood that he would commit future acts of criminal violence.

10th Circuit Hears Arguments In Utah Highway Patrol Cross Case

The U.S. 10th Circuit Court of Appeals yesterday heard oral arguments in American Atheists, Inc. v. Duncan. (AP). The case involves an Establishment Clause challenge to crosses placed on public property by the Utah Highway Patrol Association to memorialize state Highway Patrol officers who died in the line of duty. The district court rejected the challenge, holding that the cross can be seen as a secular symbol of death and burial. (See prior posting.) The Becket Fund issued a press release describing oral argument:

During the argument, the judges expressed concern about whether Utah's policy would prevent troopers' families from displaying the symbols of other religions such as Stars of David.... The court also expressed interest in how this case tests the boundaries of the Supreme Court's recent decision in Pleasant Grove City v. Summum. Summum set the standard for deciding when permanent monuments are government speech, and when they are private speech. Two of the three judges in the original Summum panel are hearing this appeal, and the lawyer for Summum is also the lawyer for American Atheists.

The appellate brief filed by American Atheists, Inc. is available on Westlaw at 2008 WL 3285457. Westlaw also links to all the other briefs filed in the case. The brief filed for the Utah Highway Patrol Association, and several amicus briefs supporting their position, are linked from this ADF press release.

Saudi Court Sentences Elderly Widow To Prison and Lashes For Meeting With Men

Saudi Arabia's Commission for the Promotion of Virtue and Prevention of Vice and local Saudi courts are again under attack for their strict enforcement of Islamic law. CNN and the London Telegraph yesterday reported on the conviction of a 75-year old widow who was charged by religious police with meeting in her home with two unrelated 24-year old men-- one of whom was her deceased husband's nephew. They were bringing her several loaves of bread. Syrian-born Khamisa Sawadi has been supported by neighbors since her husband's death. She was sentenced to 40 lashes, four months imprisonment and deportation from the Kingdom for mingling with men who are not immediate relatives. The two men were also sentenced to prison terms and lashes. Sawadi had unsuccessfully argued that her husband's nephew was considered her son under Islamic law because she had nursed him as an infant. Sawadi's lawyer, Abdel Rahman al-Lahem, says he will to appeal the conviction.

President Reverses Policy on Federal Funding of Stem Cell Research

Today President Barack Obama signed an Executive Order (full text ) lifting the ban on federal funding for embryonic stem cell research. In remarks (full text) delivered before signing the Order, the President referred to the religious debate that has surrounded the issue:

[I]n recent years, when it comes to stem cell research, rather than furthering discovery, our government has forced what I believe is a false choice between sound science and moral values. In this case, I believe the two are not inconsistent. As a person of faith, I believe we are called to care for each other and work to ease human suffering. I believe we have been given the capacity and will to pursue this research – and the humanity and conscience to do so responsibly.

It is a difficult and delicate balance. Many thoughtful and decent people are conflicted about, or strongly oppose, this research. I understand their concerns, and we must respect their point of view.

But after much discussion, debate and reflection, the proper course has become clear. The majority of Americans – from across the political spectrum, and of all backgrounds and beliefs – have come to a consensus that we should pursue this research. That the potential it offers is great, and with proper guidelines and strict oversight, the perils can be avoided.

The President added some assurances:

We will develop strict guidelines, which we will rigorously enforce, because we cannot ever tolerate misuse or abuse. And we will ensure that our government never opens the door to the use of cloning for human reproduction. It is dangerous, profoundly wrong, and has no place in our society, or any society.

Reactions from religious groups, which came quickly after news of plans for today's Executive Order became known on Friday, varied. The Interfaith Alliance called the decision "good news for science and religion," saying that "the ban instituted by President Bush was based on the views of a select group of faiths rather then on sound science." JTA reports that Jewish groups also praised Obama's decision, focusing on the importance in Judaism of saving lives. The Vatican on the other hand strongly condemned the policy reversal. The International Herald Tribune quotes from an article in Saturday's L'Osservatore Romano which called embryonic stem cell research "deeply immoral." The Family Research Council issued a statement on Friday calling the move by the President "yet another deadly executive order."

UPDATE: The White House List of Attendees at the President's signing of the Stem Cell Executive Order and Scientific Integrity Presidential Memorandum includes seven religious leaders: (1) Maureen Shea, Episcopal Church USA Director of Government Relations; (2) James Winkler, United Methodist Church Secretary of the General Board of Church and Society; (3) Rabbi Steve Gutow, Jewish Council for Public Affairs; (4) Rev. Welton Gaddy, Interfaith Alliance; (5) Nancy Ratzan, National Council of Jewish Women; (6) Nathan Diament, Union of Orthodox Jewish Congregations; (7) Rabbi David Saperstein, Religious Action Center for Reform Judaism.

Former Catholic Schools Try To Still Teach Values As Public Charter Schools

Today's New York Times reports on the effort to maintain Catholic values in seven Washington, D.C. parochial schools that converted to publicly funded charter schools this year. Instead of opening each day with the Lord's Prayer, students recite the school's honor code. Much of the curriculum focuses around 10 core values. Many students and teachers however still miss religion classes, references to scripture and the crosses that used to hang in classrooms.

Connecticut Bill Would Reform Financial Management of Catholic Parishes

In Connecticut, the Catholic Church is strongly criticizing a bill introduced in the state legislature last week to reform oversight of finances in Catholic parishes. Yesterday's Stamford (CT) Advocate reports that Raised Bill No. 1098 (full text) was introduced in response to the conviction of a Darien (CT) priest who stole $1.4 million in donations over several years. Under the proposed bill, any Catholic parish organized as a religious corporation would be required to elect a lay board of between 7 and 13 members to manage and oversee its financial affairs. A nominee of the bishop or archbishop will serve as an ex-officio member of each parish board. The bill provides, however, that it shall not be construed to limit the power of the bishop or pastor in matters pertaining exclusively to religious tenets and practices. Complaining that the bill is an atttempt to interfere in the internal affairs of the Church, a statement by the Diocese of Bridgeport says in part:

This bill violates the First Amendment of the United States Constitution. It forces a radical reorganization of the legal, financial, and administrative structure of our parishes. This is contrary to the Apostolic nature of the Catholic Church because it disconnects parishes from their Pastors and their Bishop.... This bill, moreover, is a thinly-veiled attempt to silence the Catholic Church on the important issues of the day, such as same-sex marriage.

UPDATE: The Meriden (CT) Record and The Hour reported Tuesday that the bill has been withdrawn from consideration for this legislative session while constitutional issues surrounding laws currently governing religious groups are reviewed. Tuesday's scheduled hearing on the bill was cancelled.

UPDATE 2: Here is the full text of a letter sent by 12 prominent law professors challenging the constitutionality of the bill before it was withdrawn.

Catholic Group Says Austalian Abortion Law Violates International Treaty

Last October, the Australian state of Victoria passed the Abortion Law Reform Act of 2008. Section 8 of the Act provides that

If a woman requests a registered health practitioner to advise on a proposed abortion, or to perform, direct, authorise or supervise an abortion for that woman, and the practitioner has a conscientious objection to abortion, the practitioner must—

(a) inform the woman that the practitioner has a conscientious objection to abortion; and

(b) refer the woman to another registered health practitioner in the same regulated health profession who the practitioner knows does not have a conscientious objection to abortion.

Melbourne's The Age yesterday reports that Catholic Health Australia is calling on the federal Attorney General to declare the provision in violation of the International Covenant on Civil and Political Rights. An interpretive Comment (Par. 3) to the Covenant provides that "No one can be compelled to reveal his thoughts or adherence to a religion or belief." Attorney-General Robert McClelland so far has refused to take any action, but some senators from his own party are calling on him to reconsider.

Illinois Senate Committee Tables Proposed Change In Moment of Silence Law

As previously reported, an appeal is pending in the U.S. 7th Circuit Court of Appeals in a case which found Illinois' current moment of silence law an unconstitutional violation of the Establishment Clause. Last month, Sen. Kimberly Lightford, sponsor of the original bill, introduced an amendment to make the provision more clearly neutral and less likely to be seen as supporting prayer as the preferred alternative during the moment of silence. (Full Text of SB1658.) A Chicago Tribune column reports on the state Senate's Education Committee hearing on the amendment held last Thursday. When Lightford indicated that the proposal would likely moot the pending appeal, the Committee tabled the bill in the middle of a roll call vote, preferring to wait to see how the court rules. Eric Zorn's Tribune column says this demonstrates that proponents are motivated by the desire to encourage prayer.

Recent Articles and Books of Interest

From SSRN:

• Brian M. Lusignan, The Clause Less Taken: Pleasant Grove City v. Summum and the Establishment Clause of the Utah Constitution, (March 3, 2009).
• Frederick Mark Gedicks, Truth and Consequences: Mitt Romney, Proposition 8, and Public Reason, (March 5, 2009).
• Thomas C. Folsom, Evaluating Supernatural Law: An Inquiry into the Health of Nations (the Restatement of the Obvious, Part II), (21 Regent Law Rev. 105 (2008)).
• Susan Drummond, Polygamy's Inscrutable Secular Mischief, (CLPE Research Paper No. 2/2009).

From SmartCILP:

• Mohamed A. Elsanousi, A Growing Economic Power: Muslims in North America and Integration and Contribution to Social Justice, 9 Journal of Law In Society 100-135 (2008).
• Adam Silberlight, Thou Shall Not Overlook Context: A Look At the Ten Commandments Under the Establishment Clause, 18 Widener Law Journal 113-147 (2008).
• Meredith M. Snyder, One Nation Under God: An Examination of the New Religion Law and Its Consequences for Minority Faiths In Post-Communist Romania, 2 Columbia Journal of East European Law 233-271 (2008).
• Taylor J. Turner, Freedom Under Control: Registration of Religious Organizations in Kazakhstan, 2 Columbia Journal of East European Law 272-311 (2008).
• Religious Jurisprudence Essay Series. Essays by John W. Welch and Thomas C. Folsom. 21 Regent University Law Review 79-180 (2008-2009).

New Books:

• Jay Wexler, Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars, (Beacon Press, June 2009), author interview at Religion Dispatches.
• Bruce Ledewitz, Hallowed Secularism: Theory, Belief, Practice, (Macmillan, March 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.

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.

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.]

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.

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.

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.