Religion Clause

Monday, March 23, 2009

In Jews for Jesus Challenge, Revised Oyster Bay Permit Rules Held Invalid

In People v. Mendelson, (NY Nassau Co. Dist. Ct., March 19, 2009), a New York state trial court dismissed criminal charges brought against a "Jews for Jesus" missionary for distributing literature at a concert in an Oyster Bay (NY) park without obtaining a permit. She refused to accept a permit that would limit her to a fixed table, and insisted on circulating among concertgoers to speak with them. The court held that the town's revised permit requirements (see prior posting), drafted in response to the invalidation of the town's earlier rules (see prior posting), are unconstitutional. The court found the regulations overly broad because, on their face, they are not limited to demonstrations and activities during special events, "but apply to any person, at any time, anywhere in a Town Park or recreational facility." The court said that if the regulations are amended to apply only to special event and demonstration days, they would be upheld. It refused however to accept as sufficient representations by the town's Parks Commissioner that the broadly drafted regulations would in fact be applied only in those circumstances. A release by Alliance Defense Fund discusses the decision.

Sunday, March 22, 2009

Suit Challenges Religious Lyrics Planned For School Assembly

Today's St. Augustine (FL) Record reports on a lawsuit filed last week in federal district court in Florida complaining about an attempt by teachers to include the Diamond Rio band's song "In God We Still Trust" in a public school's third-grade end-of-year assembly. Initially teachers told students that if they objected to practicing the song, they could be excused, but they would be excluded from the entire performance. However after a complaint from a parent, the district quickly removed the song completely from the program. The song (full lyrics reprinted in article) includes the following:

And when we pledge allegiance; There's no doubt where we stand;
There's no separation; We're one nation under him....
Now there are those among us; Who want to push him out
And erase his name from everything; This country's all about....
Now it's time for all believers; To make our voices heard...

In a statement responding to the lawsuit, the district said: "It is never our intention to offend anyone, and, like any other complaint, we responded quickly and appropriately.... This is obviously someone again using the school system (as well as taxpayers' money to defend the lawsuit) for their own personal agenda. Unfortunately, this is not unusual and distracts us from our mission." Meanwhile, in a court filing opposing plaintiffs' motion for a preliminary injunction, the district argued that "unlike school sponsored or endorsed prayer, school sponsored religious songs are not de facto violations of the First Amendment." [Thanks to Larry Mundinger for the lead.]

Religious Divide Growing In Israel's Army

Today's New York Times carries an article titled A Religious War In Israel's Army. It focuses on the growing influence of religious nationalists, many from the settler movement, in an Army that has traditionally been dominated by secular kibbutzniks. Many officers in the elite Golani Brigade are graduates of right-wing military preparatory academies. One soldier says that during the Gaza operation, the rabbinate distributed literature suggesting that the Army was engaged in a religious war against non-Jews for the holy land. Presently the military's chief rabbi, Brig. Gen. Avichai Rontzki, is a West Bank settler. Philosophy professor Moshe Halbertal, a member of the religious left and co-author of the military code of ethics, says that the debate in Israel is not just between religious and secular Jews, but also among religious Jews. It centers on the sanctity of land versus life; the relationship between messianism and Zionism; and the place of non-Jews in a sovereign Jewish state. (See prior related posting.)

Free Exercise Challenge To Marijuana Control Rejected

In Gover v. United States, 2009 U.S. Dist. LEXIS 22331 (WD AK, March 19, 2009), a pro se plaintiff sued then-President, George W. Bush, as well as the United States, making broad allegations of unjust policies and directives. In particular plaintiff sought to have marijuana removed from coverage under the Controlled Substances Act. The court found plaintiff lacks standing to assert most of his claims. The only claim of particularized injury was a freedom of religion assertion. Here, however, plaintiff failed to allege a substantial burden on his religious exercise. Plaintiff's complaint asserted merely that he is prevented from experiencing the "inadvertent" spiritual side effects of medicinal use of marijuana.

Recent Prisoner Free Exercise Cases

In Grimes v. Tilton, 2009 U.S. Dist. LEXIS 20183 (SD CA, March 12, 2009), a prisoner alleged that the denial of his religiously-motivated request for vegetarian diet violated his rights under RLUIPA and the equal protection clause. A California federal district court, while dismissing certain of plaintiff's claims, allowed him to move ahead on his claims for damages against various of the defendants.

In Blake v. Rubenstein, 2009 U.S. Dist. LEXIS 22073 (SD WV, March 17, 2009), a West Virginia federal district court accepted a magistrate's recommendations and refused to issue a preliminary injunction requiring plaintiffs' meals to be prepared in prison by fellow members of the Hare Krishna faith. The court said: "any ongoing burden on their religious freedom is not pressing, especially in light of the multitude of significant modifications that would be necessitated by the grant of an injunction, such as changes in the manner by which the kitchen is staffed and meals are prepared."

Saturday, March 21, 2009

5th Circuit Upholds Christian School's Exclusion From Public School League

In Cornerstone Christian Schools v. University Interscholasitc League, (5th Cir., March 20, 2009), the U.S. 5th Circuit Court of Appeals dismissed a lawsuit by a high schooler and his parents who claim that their free exercise, equal protection, and due process rights were infringed when UIL denied Cornerstone Christian Schools an opportunity to apply for league membership. (The court held that the school itself lacks standing to pursue the claims.) UIL is an association of Texas public and charter schools that organizes interscholastic athletic and academic competitions.

The court said: "Although clothed in free exercise and due process claims, this lawsuit is fundamentally about J.F.'s right to participate in interscholastic competition." Quoting an earlier decision, it said that courts are "not super referees over high school athletic programs." It found that the rule at issue does not unduly burden free exercise rights or the parents' due process right to control the education of their children. Finally the court held that UIL's rule "does not violate equal protection of the laws based either on its distinction between public and nonpublic schools or its purported distinction between nonpublic schools of differing sizes." Yesterday's El Paso Times reported on the decision. (See prior related posting.) [Thanks to Eugene Volokh via Religionlaw for the lead.]

Settlement Terms Disclosed In "Universal Love and Music" RLUIPA Suit

The terms of a previously confidential settlement agreement in a RLUIPA lawsuit have now become public with the filing of the 12-page settlement in a Pennsylvania federal court. The suit also raised 1st Amendment claims. The Church of Universal Love and Music sued Fayette County, Pennsylvania which had denied it zoning permission to continue to use property in an agricultural area for religious concerts. The county zoning board claimed that Church founder William Pritts was operating a music business, not a church. (See prior posting.) Yesterday's Pittsburgh Post-Gazette says that under the settlement, the Church will host no more than 6 weekend events and 6 Saturday-only events each year, with a maximum crowd size of 1,500 at each event. Programs may not start before noon and must end by 11 p.m. Pritts also agreed to various requirements for security, parking, camping and bathroom facilities, and a ban on any public nudity. The county will also pay Pritts $75,000 in damages.

County Creates Unusual Policy On Opening Prayers

The Accomack County (VA) Board of Supervisors voted 5-4 on Wednesday to change its policy on the type of prayer that would open their meetings. The Salisbury (MD) Times explained the unusual arrangement that the Supervisors agreed upon as a way to hopefully insulate themselves from a costly lawsuit. Up until 2006, the Board's parliamentarian Rev. Donald Broad was its informal chaplain, opening each meeting with a prayer. Once he retired, the Board began to open meetings with a prayer said by one or another of its members. Apparently many of these were sectarian in nature, and this led some members to ask attorney Mark Taylor for advice. Taylor suggested several options, including having a prayer by a Board of Supervisors chaplain. Adapting that advice, the Supervisors voted that from now on, sessions would be opened by reading one of the prayers that had been offered previously by parliamentarian-chaplain Broad. One citizen attending the meeting complained about the decision, saying that the way to pray is from the heart, not off of a piece of paper.

Malaysian Bar Group Threatened With Suit Over Use of Word "Allah"

The Malaysian Bar, the organization that represents some 12,000 lawyers in Malaysia, recently posted a poll on its website asking lawyers to vote on whether the use of the word "Allah" is restricted to a particular group in Malaysia and whether non-Muslim religious publications should be allowed to use the term to refer to God. The poll came in the wake of a dispute between the government and a newspaper, the Catholic Herald, that used the term in its Malay language edition. (See prior posting.) Channel News Asia reported yesterday that the Islamic religious council in the state of Selangor has now threatened to sue the bar association for misuse of the word "Allah" on its website. Religious council head Mohamad Adzib Mohamad Isa said: "The issue raised in the polls can threaten the sensitivity of Muslims."

Texas Bill Would Exempt Creation Institue Among Others From State Licensing

Fox News reported earlier this week that a Texas state legislator has introduced HB 2800 that would exempt private, non-profit educational institutions that do not accept state funding from the authority of the Texas' Higher Education Coordinating Board. Currently Texas Education Code, Sec. 61.304, requires all private post-secondary educational institutions to obtain a certificate of authority form the Board before they can award degrees. The proposed bill was introduced by State Rep. Leo Berman after The Institute for Creation Research (ICR )was denied a certificate of authority to grant Master of Science degrees. ICR focuses on Biblical creationism. Berman says that creationism is as scientific as evolution and should be given equal treatment in the educational community. A spokesman for the Higher Education Coordinating Board said that the proposal would "open the doors of Texas to predatory institutions." [Thanks to Scott Mange for the lead.]

9th Circuit: School May Cut Off Proselytizing Graduation Speech

In McComb v. Crehan, (9th Cir., March 20, 2009), the U.S. 9th Circuit Court of Appeals upheld the action of Clark County, Nevada school officials in cutting off the microphone at high school graduation ceremonies when the class valedictorian departed from her approved speech and began reading from a version that contained religious and Biblical references. The incident took place in 2006. (See prior posting.) In yesterday's decision, Judge Kozinski's brief opinion for the court said in part:

Defendants did not violate McComb’s free speech and free exercise rights by preventing her from making a proselytizing graduation speech. Cole v. Oroville Union High School District, 228 F.3d 1092, 1101 (9th Cir. 2000); Lassonde v. Pleasanton Unified School District, 320 F.3d 979, 983 (9th Cir. 2003). Nor did they violate McComb’s right to equal protection; they did not allow other graduation speakers to proselytize.

[Thanks to Rob Luther for the lead.]

Australian Officials Deny Major Retailers Permission To Open On Easter

In the Australian state of New South Wales, the Shop Trading Act 2008 requires retail stores to be closed on Good Friday, Easter, Christmas, Boxing Day and until 1:00 p.m. on Anzac Day. The Act exempts small shops, shops offering various sorts of food and entertainment as well as hotels. It also provides that the Department of commerce can grant exemptions to other stores. NineMSN reported yesterday that a number of major retailers have been refused an exemption that would allow them to be open on Easter Sunday this year.

Friday, March 20, 2009

Court Says AA Meetings Are Not "Exercise of Religion" Under RLUIPA

In Glenside Center, Inc. v. Abington Township Zoning Hearing Board, (PA Commn. Ct., March 17, 2009), a Pennsylvania appellate court held that use of a building for Alcoholics Anonymous meetings (and for meetings by other 12-step groups) is not an "exercise of religion" as that term is used in the Religious Land Use and Institutionalized Persons Act. In rejecting plaintiff's argument that Abington Township must meet the burden imposed by RLUIPA to deny its request for a zoning variance, the court said:

Glenside failed to prove that any of the meetings are administered by a religious leader, i.e., a minister, priest, rabbi or other spiritual leader. Glenside does not hold any religious services or have any religious affiliations. Its Articles of Incorporation state nothing about being incorporated for a religious purpose, but only to assist people in recovering from addiction. Similarly, Glenside’s printed materials state that Glenside is not a religious organization and do not require that members possess any religious belief to participate. While Glenside argues that members have found a connection with God at its meetings, clearly, the primary purpose of the group meetings, whether they be for AA, NA or DA, is to support individuals who are recovering from alcohol, drug, gambling and debtor addictions, not to advance religion.

USCIRF Holds Hearing On Religious Extremism In Pakistan

Last Tuesday, the U.S. Commission on International Religious Freedom held a public hearaing on the threat that religious extremism in Pakistan poses to religious freedom and human rights. (Event Advisory.) A transcript of the event and copies of prepared testimony are all available from the USCIRF website. This was the third in a series of hearings on the relation of religious extremism to security and human rights. Last year, USCIRF held similar hearings on Sudan (transcript) and Bangladesh (transcript).

Civil Marriage Is Issue In Constructing Israel's Coalition Government

In Israel, Benyamin Netanyahu continues in complex negotiations to build a coalition government. One piece of the complexity comes from competing demands from the Yisrael Beiteinu party and religious parties on the issue of civil marriage. Many immigrants from the former Soviet Union who considered themselves Jewish there, do not meet the halachic (Jewish religious law) requirements to be classified as Jewish in Israel. To be considered Jewish by Israel's Chief Rabbinate, the individual must either have been born of a Jewish mother, or have converted under strict Orthodox standards. If both parties to a marriage do not belong to the same recognized religious community-- Jewish, Christian, Muslim or Druze-- they cannot be married by religious authorities within the country who have a monopoly on dealing with family status issues. (Background.) Instead they have to travel abroad to marry, and then the marriage is recognized in Israel.

Yisrael Beiteinu has strong support from Russian immigrants, and its platform has called for the addition of civil marriage-- as an alternative to marriage through the Chief Rabbinate-- within Israel. Traditionally religious parties have opposed civil marriage. Yesterday, Arutz Sheva and the Jerusalem Post however both reported that leading Orthodox rabbis have agreed to a compromise that may permit Netanyahu's coalition to include both Yisrael Beiteinu and smaller religious parties such as United Torah Judaism. Civil marriage would be permitted, but only if husband and wife both affirm their status as non-Jews before a rabbinical court. This solution, though, will not solve the problem for the large number of affected couples, where one is halachically Jewish and the other is a Russian immigrant whose mother was not Jewish.

City of Modesto Settles Suit By Evangelist

Last November, a California federal district court issued a preliminary injunction requiring the city of Modesto to give evangelist Kevin Borden equal access to the city's pedestrian Tenth Street Plaza to preach and proselytize. (See prior posting.) On Wednesday, the court issued a Consent Order in Borden v. Modesto, (ED CA, March 18, 2009), under which the parties agree that they will permanently comply with the terms of the Preliminary Injunction. The city was also required to pay $35,000 in attorneys' fees and costs to Borden's lawyers, and $1 nominal damages to Borden. Alliance Defense Fund announced the settlement.

Belgian Teacher of Islam Charged With Holocaust Denial

Belgium's law against Holocaust denial has led to a complaint being filed against a Muslim religious teacher in one of Brussels' schools, according to an AFP report on Tuesday. After a Nazi concentration camp survivor made a presentation at the school, the teacher told him that his account was greatly exaggerated. Belgian education minister in the French Community Government, Christian Dupont, expressing shock at the "totally unacceptable" comments, filed a legal complaint against the teacher.

Egypt's Al-Azhar University Defies Court Order Requiring Admissin of Transsexual

The International Herald Tribune reported earlier this week on the continuing refusal by Egypt's prestigious Islamic Al-Azhar University to obey a civil court order to readmit Sally Mursi to its medical school. In 1985, Mursi was a third-year medical student at the University-- at that time Mursi was a man. Mursi then went through a sex-change operation and the government issued Mursi new identification documents listing Mursi as female. The University, however, refused to allow Mursi to re-enroll, and its top religious official issued a decree banning her. Medical school classes are segregated by sex. The University says Mursi cannot attend men's classes because she is impersonating a woman, and cannot attend women's classes because she is actually a man.

All of this led to nine years of civil litigation that culminated in 2007 with an order to admit Mursi. The University has appealed the order, and a hearing is set for May 6. University attorneys say it follows Islamic law, not civil law. Islam does not recognize transsexuality as a medical condition. Instead it considers it an expression of homosexuality.

Thursday, March 19, 2009

U.S. Backs UN Statement on Sexual Orientation and Gender Identity

In a statement issued yesterday reversing a policy of the Bush administration, the State Department said that the United States now supports the United Nations Statement on Human Rights, Sexual Orientation, and Gender Identity. The Washington Post and CBN report that the French-sponsored statement, endorsed last December by 66 nations, urges countries to make certain that "sexual orientation or gender identity" can "not be the basis for criminal penalties, in particular executions, arrests or detention." Homosexuality is a criminal offense in some 70 countries, many of them Muslim. It is punishable by death in Afghanistan, Iran, Saudi Arabia, Sudan and Yemen. The U.S. was the only Western country not to endorse the U.N. statement last year. However 57 countries, including members of the Organization of the Islamic Conference, opposed it.

According to Voice of America, the Bush administration in refusing support argued that the statement might commit the U.S. federal government to override state laws on issues such as discrimination by landlords or employers. Acting State Department Spokesman Robert Wood now says that an interagency review by the Obama administration concluded that the U.N. declaration will not impose legal obligations on the U.S. federal government.

Court Upholds Religious Exemption For Importation and Use of Daime Tea

In Church of the Holy Light of the Queen v. Mukasey, (D OR, March 18, 2009), an Oregon federal district court held that Religious Freedom Restoration Act entitles plaintifffs, who are followers of the Brazilian Santo Daime religion, to an exemption from the federal Controlled Substances Act for their importation and sacramental consumption of Daime tea. The court relied on the U.S. Supreme Court's 2006 O'Centro decision. Reality Based Community reports on the decision. [Thanks to Daily Kos for the lead.]

New Report Urges Changes In U.S. International Religious Freedom Policy

Last week, Georgetown's Berkley Center for Religion, Peace and World Affairs along with the Center on Faith & International Affairs jointly issued a 65-page report titled The Future of U.S. International Religious Freedom Policy: Recommendations for the Obama Administration. The report begins with a critique of past policy:

• U.S. IRF policy to date has focused more on rhetorical denunciations of persecutors and releasing religious prisoners than on facilitating the political and cultural institutions necessary to religious freedom. Accordingly, U.S. policy has had minimal effect on global levels of persecution and even less on the institutions of religious freedom.
• U.S. IRF policy is often viewed abroad as an attack on majority religious communities, as cultural imperialism, and as a front for American missionaries. However inaccurate, these perceptions have dramatically curtailed the policy’s impact.
• U.S. IRF policy has not been integrated into U.S. democracy programs, public diplomacy, counterterrorism, or multilateral diplomacy and international law.

The report then sets out a number of recommendations for the future, under six broad headings: (1) Set a clear policy course; (2) Retool American diplomacy; (3)Reenergize democracy promotion; (4) Make public diplomacy more effective; (5) Employ religious freedom as an element of counterterrorism strategy; and (6) Engage multilateral institutions and international law. Authors of the report are Thomas Farr and Dennis R. Hoover.

Home School Order In Custody Case Draws National Attention

As reported by ABP, a custody order entered earlier this week in a divorce action in North Carolina has generated a wave of protest among conservative groups and home school advocates. The court sided with the father's request that the three children no longer be home schooled by the mother, but instead be returned to public school. Stories, such as one in the Raleigh News & Observer, quote the mother, Vanessa Mills, who said that the home school issue was being used to distract attention from her husband, Robert Mills', adultery. Now the written opinion in Mills v. Mills, (NC Gen. Ct. Jus., March 17, 2009) has become available and paints a different picture.

In extensive Findings of Fact, the judge concluded that both parents were very religious and until 2005 the family attended a local church together. The Mills' marriage broke down, however, because Vanessa joined, and came under the influence of, the Sound Doctrine Church, described by a number of witnesses as a cult. Vanessa then began to home school the children though Robert was reluctant and only approved this as a temporary measure. The court found that a portion of the home schooling involved communication by phone and web cam with Sound Doctrine members in Washington state. The court concluded that it is in the best interest of the children to expose them "to more than just the experiences that Vanessa Mills desires." The court added that this "will not infringe upon either party's right to practice their own religion and expose their children to the same."

Hospice Chaplain Protests Request For Secular Remarks At Staff Meetings

The non-profit Hospice by the Sea in Boca Raton, Florida, finds itself in the midst of a controversy after its CEO issued what she thought was a minor administrative directive. Paula Alderson wanted chaplains to close staff meetings with an inspirational thought that is secular in tone. She asked them not to use terms such as "God" or "Holy Father" in their remarks, in order to assure that the hospice's diverse staff was comfortable. (March 18 statement on Hospice website.) However, according to Wednesday's South Florida Sun-Sentinel, Christian chaplain Rev. Mirta Signorelli has resigned in protest, saying: "I can't do chaplain's work if I can't say 'God' — if I'm scripted." She says the policy-- which she describes as a directive to cease and desist from using God in prayers-- has a chilling effect that goes beyond staff meetings. None of the hospice's other six chaplains have raised objections. [Thanks to both Jefferson Gray and Joel Katz (Relig. & State In Israel) for leads.]

Amish Landowner Sentenced To Jail For Refusing To Comply With Sanitary Code

AP reported on Tuesday that a trial court in Ebensburg, Pennsylvania sentenced Andy Swartzentruber, a member of a conservative Amish sect, to 90 days in jail for refusing to comply with sewage code requirements in connection with two outhouses on property he owns. He was also fined $1000 for contempt. An Amish school, attended by 18 students, is located on Swartaentruber's property. The court also ordered it and the outhouses padlocked. In the long-running case, Swartzentruber had previously been fined $500 and ordered to stop dumping untreated sewage onto the ground by installing a holding tank and using a certified sewage hauler. (See prior posting.) Attempts at compromise have not been successful. While the Amish community is willing to pay for a permit, Swartzentruber has religious objections to permitting inspectors to take soil samples.

Reporting on the trial, the Johnstown (PA) Tribune-Democrat said that the judge's ruling seemed to stun members of the Amish community in attendance.The order to close the Amish school now poses the issue of how the Amish community will comply with the state's compulsory education requirements. After sentencing, Swartzentruber told the judge that he wants no TV or electricity in his cell. However the jail's warden said that Swartzentruber will be placed in a standard cell with electric lights.

Companies Lose Attempt To Force Autopsy Over Religious Objections

The Newark Star-Ledger reports that Honeywell International and Chrysler Motor Corp. have lost their bid to further delay the burial of Harold St. John who had sued the companies and others for damages, alleging that his mesothelioma was caused by exposure to their products used in an auto-repair shop in which he worked. St. John died on Feb. 28, two days before his trial was to begin. A New Jersey appellate court ordered his burial delayed while it heard arguments over religious and moral objections to an autopsy raised by St. John's family. That order was served on the funeral director on March 4, just moments before the funeral. Now, in St. John v. Affinia Group, Inc., (NJ App. Div., March 18, 2009), the New Jersey appellate court concluded that the companies had not shown that lung tissue from the requested limited autopsy would likely lead to evidence that would be significant at trial. Therefore, it concluded, an autopsy should not be ordered over the objections of St. John's family and St. John's burial should proceed.

Kazakhstan President Agrees With Invalidation of Religion Law Changes

Forum 18 reported Tuesday that Kazakhstan's President Nursultan Nazarbaev will not challenge last month's decision by the Constitutional Council ruling that recently enacted amendments to the country's religion laws are unconstitutional. (See prior posting.) The President had referred the amendments to the Council instead of signing them after Parliament approved them. He now says he agrees with the Constitutional Council's ruling and the Prime Minister's office says it has no plans to introduce a new religion law. It appears that the now-rejected law was never the product of the Prime Minister's office, but instead came from members of Parliament who circulated it to the Justice Ministry's Religious Affairs Committee for comment. Parliamentary supporters of the new law are not sure whether they will attempt to enact other sorts of restrictions. One supporter, Berik Bekzhanov, says that he is still concerned with groups such as Jehovah's Witnesses.

Teen Challenge Sues Over Zoning Denial By North Carolina City

Monday's Elizabeth City, North Carolina Daily Advance reports that a lawsuit was filed in a North Carolina federal district court last week challenging Elizabeth City's refusal to permit Albemarle Teen Challenge to operate a residential addiction treatment center for women in an historic district in the city. Teen Challenge offers a "Christian faith-based solution to life-controlling drug and alcohol problems." The lawsuit claims that the city's rejection of a rezoning request and the Board of Zoning Adjustment's classification of the proposed facility as a "boarding house" for zoning purposes, violate the Americans with Disabilities Act, the Fair Housing Act and RLUIPA.

Wednesday, March 18, 2009

Obama Picks Author of Indiana Legislative Prayer Decision For 7th Circuit Vacancy

In his first judicial nomination, President Barack Obama yesterday selected Indiana federal district judge David Hamilton for a seat on the U.S. 7th Circuit Court of Appeals. (White House press release.) Hamilton was the author of two related 2005 opinions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Ultimately the 7th Circuit dismissed the case on standing grounds. (See prior posting.) Judge Hamilton, whose nomination must be confirmed by the Senate, was supported by both Indiana senators, Democrat Evan Bayh and Republican Richard Lugar. Reporting on the nomination, the AP says that the American Bar Association has resumed its historical role in evaluating judicial nominees-- giving Hamilton a "well qualified" rating. The Bush administration did not consult the ABA on its judicial picks.

9th Circuit Upholds Law School's Non-Discrimination Rules For Student Groups

Just one week after oral argument (see prior posting), the U.S. 9th Circuit Court of Appeals issued a one-paragraph decision in Christian Legal Society v. Kane, (9th Cir., March 17, 2009), upholding the right of Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. Citing its decision last year in In Truth v. Kent School District, the court said:

The parties stipulate that Hastings imposes an open membership rule on all student groups—all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.

Yesterday's San Francisco Chronicle reports on the decision.

Obama and Catholic Bishops' Head Meet At White House

Yesterday, President Barack Obama met at the White House with Cardinal Francis George, President of the United States Conference of Catholic Bishops. Cardinal George is also Archbishop of Chicago. Both the White House and the U.S. Conference of Catholic Bishops issued short and cryptic press releases about the 30 minute meeting. The releases indicate that the meeting discussed the relationship of the Church in the U.S. to the Administration and opportunities for continued cooperation in solving the nation's problems.

Last November, shortly after Obama's election victory, Cardinal George issued a statement welcoming the opportunity of working with the new administration and Congress, but stating: "If the election is misinterpreted ideologically as a referendum on abortion, the unity desired by President-elect Obama and all Americans at this moment of crisis will be impossible to achieve." (See prior posting.) In their respective releases on yesterday's meeting, the White House said: "The President thanked Cardinal George for his leadership and for the contributions of the Catholic Church in America and around the world." The USCCB said: "Cardinal George expressed his gratitude for the meeting and his hopes that it will foster fruitful dialogue for the sake of the common good."

Massachusetts High Court Rejects Suit Against Episcopal Diocese In Sex Case

In Petrell v. Shaw, (MA Sup. Jud. Ct., March 16, 2009), the Massachusetts Supreme Judicial Court dismissed a lawsuit against the Episcopal Diocese of Massachusetts and three of its bishops brought by parishioner Carolyn Petrell who had been in a sexual relationship with her parish rector, August Rakoczy, after she went to him for family counselling. Soon after Petrell ended the relationship, Rakoczy was admitted to a psychiatric facility and renounced his vows in anticipation of being deposed from the Episcopal priesthood. The Court rejected the claim that defendants owed Petrell a fiduciary duty of care to protect her against sexual exploitation by a member of the clergy. The court also rejected the argument that defendants were vicariously liable for the Rakoczy's wrongful actions. Finally, the court found no negligent hiring, supervision or retention of the Rakoczy by defendants, saying:

The delicate balance between the freedom to exercise religion and the demands placed on all persons (clerical and others) by civil law, requires us to proceed cautiously in a controversy where we are asked to hold that a religious institution's reliance on its own written policy governing the response to reports of a clergy's sexual misconduct with an adult parishioner gives rise to liability under civil law.

Yesterday's Quincy (MA) Patriot Ledger reports on the decision and on further background of the case.

Durban II Draft Revised To Remove "Defamation of Religion" Language

Less than a month after the United States announced that it was withdrawing from participation in the United Nations Durban Review Conference and would re-engage only if dramatic revisions were made in the draft resolution for the Conference, the U.N. human rights office in Geneva announced substantial changes in the draft declaration. (Associated Press, 3/17.) References to "defamation of religion" have been removed and the draft now only expresses concern about the "negative stereotyping of religions." Also direct references to Israel have been removed from the draft.

Attempts over the past several years by the Organization of the Islamic Conference to enshrine "defamation of religion" as an offense under international law have generated substantial controversy. (See prior posting.) The group UN Watch (affiliated with the American Jewish Committee) still has some problems with the Durban II draft. Language referring to sexual orientation discrimination has been removed. Also, the draft still takes the position that religions themselves — not just religious believers — should be protected under human rights law. Western diplomats had no immediate comment on the changes, other than to say they were moving in the right direction. (See prior related posting.)

U.S. Muslim Groups May Cut Outreach Efforts With FBI

In a press release yesterday, the American Muslim Taskforce on Civil Rights and Elections (AMT) announced that it is considering suspending ongoing outreach efforts with the FBI. The move was triggered by a number of recent incidents in which the FBI has sent undercover agents into mosques (see prior posting), as well as by concerns over the FBI's naming several major American Muslim groups as "unindicted co-conspirators" in connection with the trial of the Holy Land Foundation in Dallas, Texas. (See prior related posting.) Ten U.S. Muslim groups signed the AMT statement.

Pope, On Plane To Africa, Says Condoms Are Not The Way To Fight AIDS

Speaking aboard his plane on the way to Cameroon yesterday, Pope Benedict XVI created a new controversy in answering questions submitted in advance by reporters. Responding to a question about the AIDS epidemic on the African continent, the Pope said the Catholic Church is in the forefront of the battle against the disease. However, he added: "You can't resolve it with the distribution of condoms. On the contrary, it increases the problem." The Associated Press, reporting on the start of the Pope's week long trip to Africa, quotes the response of an employee in Cameroon's Ministry of Urban Development: "What the pope says is an ideal for the Catholic church. But he needs to look at the realities on the ground." Landing in Cameroon, the Pope was greeted by the country's President, Paul Biya.

Canadian Science Minister's Beliefs On Evolution Create Controversy

In Canada, Minister of State for Science and Technology, Gary Goodyear, has created a good deal of controversy by refusing to answer a question about whether he believes in evolution. According to a Toronto Globe & Mail report yesterday, Goodyear responded to a reporter's question about his beliefs by saying: "I'm not going to answer that question. I am a Christian, and I don't think anybody asking a question about my religion is appropriate." However, in a subsequent TV appearance, Goodyear when asked whether he believes in evolution, responded: "Of course I do. But it is an irrelevant question.” (Toronto Globe & Mail). A budget crunch in Canada has led to cutting of science funding. Goodyear and the government have been criticized for neglecting basic research and directing resources instead towards applied research in areas such as the automotive and forestry industries. CBC News reports on the reactions from various scientists and medical personnel.

Tuesday, March 17, 2009

Israel's High Court Reaffirms Required Religious Accommodation For Fencing Championships

In a decision handed down yesterday, Israel's High Court of Justice refused to lift an interim order it issued last year requiring that national fencing championship organizers accommodate the Sabbath observance of competitor Yuval Freilich-- holder of the national title in the 13 and under category. (See prior posting.) YNet News reports that the court suggested the parties reach an agreement or have the matter arbitrated by the Israel Sports Association. The court said that its interim order would be null and void if the Israel Fencing Association either arranges for Freilich to participate in matches only after the conclusion of the Sabbath, or alternatively awards him technical wins for matches on the Sabbath that he misses. [Thanks to Joel Katz of Religion and State in Israel for the lead.]

Suit Against Monastery May Proceed Over 1st Amendment Objections

Hoyle v. Dimond, 2009 U.S. Dist. LEXIS 20051 (WD NY, March 9, 2009), is a suit for return of over $1.2 million in assets transferred to the Most Holy Family Monastery by Eric Hoyle who entered the monastery to become a Benedictine monk. The amended complaint which this decision permitted to be filed raises ten causes of action, including fraud, misrepresentation, unjust enrichment, deceptive trade practices and RICO violations. It also seeks an accounting. The dispute arose when Hoyle learned that the monastery was not affiliated with the Order of St. Benedict. At that time he withdrew and demanded back his worldly assets that he had turned over to the monastery.

In this decision, a New York federal district court rejected the monastery's First Amendment defense that adjudicating the claim would involve the court in interpreting religious doctrine. While leaving open the possibility that the defense could be raised again later, the court concluded that for now it appeared that it was merely being asked to determine the neutral fact of whether the Monastery was affiliated with the recognized Order of St. Benedict, and not a religious dispute of whether defendants can be "Benedictines" without being affiliated with the recognized order.

5th Circuit Upholds Texas Moment of Silence Law

In Croft v. Governor of the State of Texas, (5th Cir., March 16, 2009), the U.S. 5th Circuit Court of Appeals upheld the Texas moment of silence statute against an Establishment Clause challenge. The statute, as amended in 2003, requires "the observance of one minute of silence" at every Texas school, during which "each student may, as the student chooses, reflect, pray, meditate, or engage in any other silent activity that is not likely to interfere with or distract another student." The Court concluded:

the Amendments are constitutional and satisfy all three prongs of the Lemon analysis. There is no excessive entanglement, and the primary effect of the Amendments is not to advance religion. The most difficult prong—for this and for moment of silence statutes generally—is legislative purpose. But our review of legislative history is deferential, and such deference leads to an adequate secular purpose in this case.... Here, that intent was to promote patriotism and allow for a moment of quiet contemplation.

The San Angelo Standard Times reported on the decision yesterday. (See prior related posting.)

Reconversion Out of Islam Continues As Issue In Muslim Countries

In Muslim countries, court battles over the recognition of conversions out of Islam to another religion continue. In the Malaysian state of Penang, the Sharia Appeal Court has issued one of the rare decisions permitting a woman to renounce Islam and convert back to Buddhism. According to Reuters yesterday, the court held that Tan Ean Huang, an ethnic Chinese woman, had purportedly converted to Islam in 1998, as required by Malaysian law in order to marry a Muslim man. The court concluded, however, that she has never followed Islamic teachings and has been living a non-Muslim lifestyle, making the validity of the original conversion doubtful.

Meanwhile, in Egypt a lawyer has filed suit against the Minister of Interior seeking to make it easier for Christian converts to Islam to reconvert to Christianity. Currently Egyptian law requires a court to approve the reconversion. According to Monday's Christian Today, the lawsuit seeks to require the government to recognize a certificate of conversion from the Coptic Patriarchate as sufficient, just as a decree from Al-Azhar is sufficient for conversion into Islam.

Cardinal Says International Law Precludes Sale of Vatican Art for African Food

Article 18 of the 1929 Conciliation Treaty (full text) between Italy and the Vatican provides: "The artistic and scientific treasures existing within the Vatican City and the Lateran Palace shall remain open to scholars and visitors..." Apparently this is the provision referenced by Cardinal Paul Josef Cordes at a press conference Friday in response to a question about a widely-circulated online petition. In anticipation of the Pope's trip to Africa that begins today, Alberto Juesas Escudero of Spain obtained 40,000 signatures on a petition circulated through Facebook that calls on the Vatican to exchange its treasures for food for Africa. Zenit quotes Cardinal Cordes, president of the Pontifical Council Cor Unum, who said that the Church "has the duty to conserve the works of art in the name of the Italian state. It cannot sell them." Thus, he says, international law makes the exchange of art for food an impossibility.

Egyptian High Court Says Baha'is Can Get ID Cards Without Religion Listed

In an important decision handed down on Monday, Egypt's Supreme Administrative Court held that Baha'is in the country can obtain official identification cards with no religious preference listed on them. Previously the government had required Baha'is to list one of the three official religions-- Islam, Christianity or Judaism-- on their identity papers. In practice, Baha'is often refused to do so and went without the identification papers needed to access education and health care. Yesterday's Gulf News, reports on the decision that ends a 5-year legal battle. A spokesman for Egyptian Initiative for Personal Rights described the result as "a victory for civic rights for all Egyptians." (See prior related posting.) The decision, however, does not overrule a 2006 ruling by the same court that bars affirmative listing of the Baha'i faith on ID cards. (See prior posting.)

UPDATE: Human Rights Watch reported in an April 15 article that the Court's decision has been implemented. On March 19 Interior Minister General Habib al-Adly signed a decree (full text in Arabic) instructing officials in the Civil Status Department of the ministry to place a dash before the line reserved for religion in the official identification documents of Egyptian citizens who demonstrate that they or their ancestors were followers of a non-recognized religion. The decree was published in the Official Gazette on April 14 and entered into force on April 15.

Monday, March 16, 2009

Romanian Tribunals Uphold Biometric Passports Over Religious Objections

In Romania, both the Legal Commission of the Senate and the Romania Appeals Court have upheld the Emergency Government Ordinance introducing biometric passports despite protests that the new passports violate religious rights. The face image and fingerprints are digital in the new documents. EDRI reported last week that at the Appeals Court hearing, NGOs that brought the challenge argued that "the introduction of chips into passports affects the right to religion because it changes the name given by God into a figure." Some opponents had also claimed that the new passports included the figure "666", traditionally the mark of the beast from the Book of Revelation. Aurel-Vasile Sime, head of the General Division of passports, said that was not the case, and also said that Romanians had the option to choose temporary one-year passports without biometric elements.

Resolution Proposed To Display Lincoln-Obama Bible At Capitol Visitor Center

In late January, Virginia Rep. James Forbes introduced into Congress H. Con. Res. 34 seeking to have the Lincoln-Obama Bible placed on permanent display on the Lincoln table in the Capitol Visitor Center. As a posting yesterday at the Public Record demonstrates, it is an idea that might have captured broad support were it not for the wording of the resolution that seems designed to stir up the controversy between those who want more religion in government and those who support a robust Establishment Clause. Here are a few of the contentious excerpts (though many of the other of the 16 "Whereas clauses" are unobjectionable to all sides):

Whereas the Holy Bible is God's Word;
Whereas each President, after taking the oath of office, has repeated President Washington’s petition prayer seeking divine help by saying, "So help me God";...

Whereas in Lincoln’s Second Inaugural Address, he referred to God 14 times, to verses in the Holy Bible 4 times, and invoked prayer 3 times in 701 words; ...

Resolved ... That Congress calls upon the Capitol Preservation Commission ... to place the Lincoln-Obama Bible on permanent display ... at the Capitol Visitor Center for the benefit of all its visitors to fully understand and appreciate America's history and Godly heritage.

Pakistan and Egypt Move In UN On Resolutions Against Anti-Muslim Speech

A new chapter began last week in the long running effort of Muslim countries to obtain United Nations support for banning "defamation of religion," particularly criticism of Islam. Last Wednesday Pakistan began circulating a new resolution "Combating Defamation of Religions" to members of the Human Rights Council. (UN Watch article including full text.) Meanwhile on Friday, Egypt took an unusual step. Instead of waiting, as usual, for the Special Rapporteur to file his report in June, Egypt has begun circulating a draft of a free speech resolution to members of the Human Rights Council. According to Saturday's Vancouver Sun , this pre-empts Canada which usually takes the lead in introducing the resolution on freedom of expression. The Egyptian draft expresses concern about abuses of speech. It is likely to draw opposition from many Western countries.

Sunday, March 15, 2009

DC Circuit Says Religious College Is Exempt From NLRB Jurisdiction

In Carroll College, Inc. v. NLRB, (DC Cir., March 13, 2009), the DC Circuit Court of Appeals held that the National Labor Relations Board lacks jurisdiction over Carroll College under the Supreme Court's Catholic Bishop case because Carroll is a religiously operated school. The DC Circuit applied the test it had developed in 2002 in University of Great Falls v. NLRB, finding that Carroll College held itself out as providing a religious educational environment. The court concluded that the NLRB had erred in also requiring proof of actual religious influence or control. Focusing on the other portions of the Great Falls test, the Court determined that Carroll College is a non-profit institution that is affiliated with the Presbyterian Church. It held that affiliation, without direct ownership, operation and control, is enough. Finally the court concluded that it could accept the college's challenge to NLRB jurisdiction under Catholic Bishop, even though this theory was raised for the first time on appeal. Before the NLRB, the school (now known as Carroll University and located in Waukesha, Wisconsin) had argued that the Religious Freedom Restoration Act exempted it from NLRB jurisdiction. Friday's Chicago Tribune reports on the decision.

Obama Connects With 5 Pastors For Prayer and Discussion

While the Obama family has not yet joined a church in Washington, D.C., today's New York Times reports that President Barack Obama has created connections with five pastors who he telephones for private prayer sessions and with whom he discusses the role of religion in politics. The pastors, who are centrists theologically, generally share Obama's belief in religion as a force for social justice. The five are Bishop T.D. Jakes, Rev. Jim Wallis, Rev. Kirbyjon H. Caldwell, Rev. Joel C. Hunter and Rev. Otis Moss Jr. Jakes and Caldwell also sometimes served as spiritual advisers to President George W. Bush.

British MP Proposes Ban On Demonstrations Against Uniformed Military

A great deal of anger has surfaced in Britain over the protest last week (Guardian 3/11) by a tiny Islamist group against soldiers returning from Iraq. During a parade in the town of Lutton featuring 200 returning soldiers, Ahle Sunnah al Jamah members carried signs such as one reading "Anglian soldiers go to hell." Now, according to The National yesterday, a Conservative member of Parliament has introduced a bill to outlaw this type of demonstration against the military. The proposed bill tracks language in the Racial and Religious Hatred Act of 2006 (which protects Muslims in Britain). It would ban stirring up hatred against "uniformed military personnel on official duties." The new ban has been offered as an amendment to a policing bill currently working its way through Parliament.

Saudi Religious Enforcers Battle Sorcery

Today's Saudi Gazette reports on the special efforts of the government's Commission for Promotion of Virtue and Prevention of Vice in combating sorcery, which is banned by Islam. Apparently there is a special branch of the Commission devoted to the topic. An arrest was recently made in Al-Ahsa where sorcery had become "the talk of the town." Sheikh Adel Faqih, head of the Commission's anti-sorcery branch, says that religious pilgrims to Saudi Arabia are misled by sorcerers who make use of Qur'anic terms. According to the report, Faqih "explained that a sorcerer can be identified when he asks for the name of a patient and for the name of the patient’s mother or if he is seeking to buy an animal with certain features. He can also be identified if he asks for a sheep to be killed without mentioning Allah’s name and asks to stain the body with the animal's blood or if he asks for similar unusual things."

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.

Saturday, March 14, 2009

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.

Friday, March 13, 2009

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."

Thursday, March 12, 2009

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.