Recently Available Prisoner Free Exercise Cases

In Harper v. Beard, 2009 U.S. Dist. LEXIS 25129 (MD PA, March 25, 2009), a Pennsylvania federal district court accepted a magistrate's recommendation to dismiss a prisoner's claim that his 1st Amendment rights were violated when authorities deprived him of a Bible. The magistrate's recommendation is available at 2009 U.S. Dist. LEXIS 30604 (Jan. 13, 2009).

In Wright v. Veda, 2009 U.S. Dist. LEXIS 24828 (ED MI, March 25, 2009), a Michigan federal district court rejected an inmate's claim that his free exercise rights were violated when his religious books were lost after shipment between prison facilities.

In Walls v. Schriro, 2008 U.S. Dist. LEXIS 108112 (D AZ, June 16, 2008), an Arizona federal district court rejected plaintiff's RLUIPA and 1st Amendment claims objecting to the denial of customized Hare Krishna meals. However the court ordered prison authorities to permit plaintiff to wear his sikha hairstyle. Damages however were denied. (See prior related posting.)

In Coble v. Butler, 2009 U.S. Dist. LEXIS 25361 (D AZ, March 18, 2009), an Arizona federal district court rejected plaintiff's claim that his free exercise rights were infringed when jail officials interfered with mail to and from his pastor.

In Junaid v. Kempker, 2009 U.S. Dist. LEXIS 25940 (ED MO, march 27, 2009), a Missouri federal district court rejected a Muslim inmate's complaints that he was denied Halal food; that members of other religious groups could not attend Muslim services; that he could not wear his religious headgear except during religious services; that the Muslim group was barred from holding religious classes and conducting fundraisers; that the prison discriminated in the hiring of chaplains; and that officials refused to accept money mailed to him because it only contained his legally-changed name.

In Henny v. Harvey, 2009 U.S. Dist. LEXIS 25977 (WD VA, March 27, 2009), a Virginia federal district court rejected plaintiff's 1st Amendment and RLUIPA claims. Plaintiff objected to officials' failure to separate NOI's Friday "Jumah" service from the Sunni Muslims' prayer service, objected to cancellation of Jumah services held in the gymnasium, and complained about pork-flavored foods served as part of the Muslim religious diet.

In Anderson v. Raemisch, 2009 U.S. Dist. LEXIS 25657 a federal district court gave a Jewish prisoner two weeks to supplement his complaint to clarify what religious materials and services he was allegedly being denied in Transition Phase status after administrative segregation.

In Thorne v. Hale, 2009 U.S. Dist. LEXIS 25938 (ED VA, March 26, 2009), a Virginia federal district court permitted plaintiff to move ahead with his claim against directors of the state's drug court program alleging that they were responsible for his entering a plea agreement in which he was required to attend religious-based AA and NA programs, and was refused permission to attend a drug treatment program more consistent with his religious beliefs.

In Harrison v. Watts, 2009 U.S. Dist. LEXIS 26009 (ED VA, March 26, 2009), a Virginia federal district court refused to grant a motion for reconsideration and held that the Nation of Gods on Earth organization is not a religion. The court thus rejected plaintiff's attempt to have NOGE treated on the same basis as other faith-based groups in prison.

In Hayes v. Tennessee, 2009 U.S. Dist. LEXIS 26411 (ED TN, March 31, 2009), a Tennessee federal district court rejected a prisoner's claim that the Christian Identity Faith should be recognized as a legitimate religion, that he be allowed to receive literature concerning his faith, and that the Department of Corrections be enjoined from adopting unconstitutional Security Threat Group criteria.

Israel's High Court Issues Injunction Pending Decision on Immigration Case

Jerusalem Post reports today that Israel's High Court has issued an injunction allowing an immigrant from Italy to remain in the country while the court considers her appeal of denial of her citizenship application under the Law of Return. The woman was converted to Judaism by an Orthodox Rabbinical Court in Rome and then almost immediately came to Israel. Six months ago, she married an Orthodox man (a kashrut supervisor), with approval of Israel's Chief Rabbinate. Now however, Interior Ministry officials refuse to recognize her as Jewish and have denied her citizenship application under their rules that require converts to remain in the community where they converted for at least nine months after conversion. Those who come sooner are required to go through a lengthy process to prove that they are Jewish. The rules were designed to prevent sham conversions by those wishing to emigrate for economic reasons. The rules also work to keep out those converted by the Conservative and Reform movements abroad.

Rabbi Andy Sacks, director of the Masorti (Conservative) Movement's Rabbinical Assembly in Israel, commenting on the case, said: "we are in an absurd situation in which clerks and bureaucrats are getting involved in halachic [Jewish legal] decisions, and they are reaching more stringent conclusions than the rabbis."

Flogging Video Undermines Arrangements For Islamic Law In Part of Pakistan

In February, the government of Pakistan entered a tentative agreement with the Taliban that are in effective control of the Swat Valley to set up a new judicial structure in the nearby Malakand region of the North West Frontier Province. The arrangement would permit cases to be adjudicated according to Islamic law. (See prior posting.) Now, according to AP and The News, the government is under renewed pressure from human rights advocates not to sign the bill formally implementing the arrangement in light of a graphic video that has surfaced showing the public flogging of a screaming 17-year old girl. AP reports:

Muslim Khan, spokesman for the Swat Taliban, said the militants publicly flogged a woman nine months ago over allegations that she had an illicit relationship with her father-in-law, but he was not sure if the video showed that incident. He defended the punishment, although he said it should not have been done in public and should have been carried out by a boy who had not yet reached puberty.

Yesterday Pakistan's Chief Justice Iftikhar Muhammad Chaudhry opened an investigation into the incident, ordering the interior secretary to appear before the court and instructing security officials to produce the victim in the Supreme Court in time for an April 6 hearing.

California Supreme Court Refuses To Answer Certified Questions From 9th Circuit

Last year, in Barnes-Wallace v. Boy Scouts of America, the U.S. 9th Circuit Court of Appeals certified three questions to the California Supreme Court in a case challenging constitutionality of the City of San Diego's leasing city property, at nominal rents, to the Boy Scouts. (See prior posting.) The issues posed by the certified questions could have been a basis for the court to decide the case on state rather than federal Constitutional grounds. At issue is whether the lease violated state free exercise protections or the "no aid" provision of California's Constitution. The Scouts require members to affirm a belief in God. (See prior posting.) The full 9th Circuit denied en banc review of the case, but 6 dissenters argued that plaintiffs lacked standing. (See prior posting.) Now, in an unusual move the California Supreme Court has denied the 9th Circuit's request that it decide the questions of law certified to it. (Conference Results, 4/1/2009). Yesterday's Los Angeles Metropolitan News-Enterprise reports on the action.

U.S. Senate Defeats Health Care Providers' Conscience Amendment

On Thursday, the U.S. Senate defeated a Budget Bill amendment offered by Sen. Tom Coburn. The amendment, defeated by a vote of 41-56, would have banned discrimination against health care providers who refuse on grounds of conscience to "participate in specific surgical or medical procedures or prescribe certain pharmaceuticals." It would have also prohibited coercion of patients to enroll in specific health care plans. The defeat clears the way for the Department of Health and Human Services to move ahead with its announced plans to propose repeal of the conscience regulations covering health care workers adopted in the final days of the Bush administration. Catholic News Agency reports that 16 of the 25 Catholic Senators voting on the amendment voted against it.

Russia Sets Up Experts Council To Guide Courts On Religion Issues

Russia's Justice Ministry has set up an Experts Council to provide guidance on religious matters to Russia's courts and other governmental bodies. It includes representatives of Russia's four "traditional" religions-- Russian Orthodoxy, Islam, Judaism, and Buddhism. It also includes civil specialists on church and state issues, on new religious movements and on "pseudo-religious criminal and extremist structures." Georgian Daily reports:

The council was mandated by a federal law adopted in July 2008 and formed by a decree of the justice ministry in February. Its tasks include, first, it is to provide "a definition of the religious character of organizations on the basis of their constituent documents and reports about their faith and corresponding practice." Second, the council is responsible "checking and assessing the reliability of information contained in documents offered by any religious organization." And third, it is charged with evaluating whether what the religious group declares to the government that it believes and is doing in fact corresponds to reality.

The Council met for the first time yesterday and chose Aleksandr Dvorkin as its chair. Georgian Daily says this signals acceptance of Orthodox Patriarch Kirill's views that only the four traditional faiths should be supported. Dvorkin is known for his attacks on Catholics, Evangelical Protestants, Mormons and other non-traditional religious groups.

County Settles Religious Harassment Lawsuit

Today's Craig (CO) Daily Press reports that the Moffat County (CO) Commission agreed last Tuesday to settle for $15,000 a lawsuit filed by a former employee who charges that she was subjected to religious harassment by his supervisor in the Parks and Recreation Department. Plaintiff Penny Doolin claims that her direct supervisor, Tammy Seela, questioned her "in an aggressive manner" about her religious practices and beliefs. Seela says she was fired by the county Human Resources Director after complaining about the situation. The county denies any wrongdoing, but says it is settling on the recommendation of its insurance company.

Court Bars Illinois Enforcement of Pharmacy Rule Pending Trial

Last December, in Morr-Fitz, Inc. v. Blagojevich, (IL Sup. Ct., Dec. 18, 2008), the Illinois Supreme Court held that two pharmacists and 3 corporations that own pharmacies had stated a justiciable challenge to a State Board of Pharmacy rule (68 Ill. Adm. Code §1330.91(j)) that requires them to dispense the "morning after pill." (See prior posting.) After reaching this conclusion, it remanded the case to the trial court. Yesterday, according to the Springfield (IL) State Journal-Register, the Sangamon County Circuit Court granted a temporary restraining order to prevent the Illinois Department of Financial and Professional Regulation from enforcing the rule against the two pharmacists while the case is being heard. Plaintiffs claim that the administrative rule violates the Illinois Health Care Right of Conscience Act, as well as plaintiffs' 1st Amendment rights. The state contends that the pharmacists are not covered by the Right of Conscience Act. Meanwhile, it is unclear whether the state will also cease enforcing the rule against other pharmacists during the pendency of this challenge.

Historic Landmark Limits Are Not Substantial Burden Under RLUIPA

In Trinity Evangelical Lutheran Church v. City of Peoria, Illinois, (CD IL, March 31, 2009), an Illinois federal district court rejected a church's RLUIPA claim. The Church, some years ago, purchased an adjacent building which was subsequently designated as an historic landmark. Now the city refuses to permit the Church to tear down the building to build a Family Life Center. The court held that the limitations on tearing down or renovating the building because of its historic status do not constitute a substantial burden on the Church's exercise of religion. Law of the Land blog reported on the case yesterday. [Thanks to Bob Tuttle for the lead.]

Iowa Supreme Court Invalidates Ban On Same-Sex Marriage

Today Iowa joined Connecticut and Massachusetts in recognizing same-sex marriage. In Varnum v. Brien, (IA Sup. Ct., April 3, 2009), the Iowa Supreme Court held that the Iowa statute (IC Sec. 595.2) that limits marriage to unions between opposite-sex partners violates the equal protection clause of the Iowa Constitution (Art. I, Sec. 6). Conducting a lengthy analysis of equal protection precedent, the court concluded that "legislative classifications based on sexual orientation must be examined under a heightened level of scrutiny...." Finding that the same-sex marriage ban cannot survive intermediate scrutiny, the court did not need to decide whether a strict scrutiny analysis should be applied instead. Near the end of its opinion, the Court focused on the question of religious opposition to gay marriage:

[We] give respect to the views of all Iowans on the issue of same-sex marriage—religious or otherwise—by giving respect to our constitutional principles. These principles require that the state recognize both opposite-sex and same-sex civil marriage. Religious doctrine and views contrary to this principle of law are unaffected, and people can continue to associate with the religion that best reflects their views.
A religious denomination can still define marriage as a union between a man and a woman, and a marriage ceremony performed by a minister, priest, rabbi, or other person ordained or designated as a leader of the person’s religious faith does not lose its meaning as a sacrament or other religious institution. The sanctity of all religious marriages celebrated in the future will have the same meaning as those celebrated in the past. The only difference is civil marriage will now take on a new meaning that reflects a more complete understanding of equal protection of the law. This result is what our constitution requires.

New York Times reports on the decision. Americans United issued a release praising the decision and saying it "has reaffirmed religious liberty." On the other hand, a release from the Traditional Values Coalition complains about judicial activism and warns of possible losses and mandates that it says could be imposed on religious groups.

Air Force Officer Cleared In Inspirational E-mail Investigation

Stars and Stripes reported Wednesday that the Air Force has cleared Col. Kimberly Toney of violating Air force policy requiring religious neutrality. Toney 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. (See prior posting.) In closing the investigation last Monday, an Air Force spokesman said: "After a thorough consideration of the facts, the Third Air Force has concluded Colonel Toney acted inadvertently and unintentionally and did not willfully violate Air Force policy or (Equal Employment Opportunity) guidelines." [Thanks to Christian Fighteer Pilot for the lead.]

Judges Nominated For 4th and 2nd Circuit Vacancies

Yesterday the White House announced that nominations for two vacant circuit judgeships have been submitted to the Senate. AP, reporting on the nominations, says that there are currently 17 vacancies on federal appeals courts.

Maryland U.S. District Court Judge Andre M. Davis has been nominated by President Obama for the 4th Circuit Court of Appeals. In 2000, Davis had been nominated by President Clinton for the 4th Circuit, but the Senate did not consider the nomination prior to Clinton's leaving office.

In 2000, Judge Davis decided Concerned Citizens of Carderock v. Hubbard, 84 F. Supp. 2d 668 (SDNY, 2000) [LEXIS link], holding that a Montgomery County, Maryland zoning ordinance did not violate the Establishment Clause. In the case, homeowners challenged the grant of a building permit to a synagogue, arguing that a zoning provision permitting "churches . . . and other places of worship" in areas zoned for single-family residences, but not allowing charitable institutions or private clubs there, amounts to an endorsement of religion. Judge Davis wrote: "the operative characteristic in the Ordinance is not religion, non-religion or any particular system of beliefs, but the County Council's reasonable, and thus legitimate, judgment about presumed compatibility with single family residential use."

New York U.S. District Court Judge Gerard E. Lynch has been nominated for the 2nd Circuit Court of Appeals. From 1992-97, Lynch served as vice-dean of Columbia Law School. Judge Lynch's decisions include two in which he ruled against complaints from Muslim prisoners.

In Pugh v. Goord, 184 F. Supp. 2d 326 (SD NY, 2001) [Lexis link], Lynch denied a preliminary injunction and dismissed claims brought by Shi'ite Muslim inmates who wanted to be able to hold services separate from Sunni Muslim prisoners. However the judgment was vacated and the case remanded by the Second Circuit on the ground that plaintiffs did not have notice that the court was considering entirely dismissing the case. (Pugh v. Goord, 345 F.3d 121 (2d Cir., 2003) [Lexis link].

In Jones v. Goord, 435 F. Supp. 2d 221 (SD NY, 2006) [Lexis link], inmates objected to New York's administration of a program for double-celling in maximum-security prisons. Part of the claim was on behalf of Muslim prisoners who argued that double-celling prevents them from practicing their religion. There is not enough room to pray in a double cell, a cellmate may render a cell unclean and therefore unfit for prayer, certain prayers and rituals require solitude, and the morning call to prayer could disturb a sleeping cellmate. Judge Lynch wrote: "plaintiffs offer no alternative solution that would accommodate their religious needs, nor do they attempt to explain how the requested exemption could be applied without compromising the legitimate penological interest in distributing the burden of double-celling equally among prisoners."

Files On Clergy Sexual Abuse Ordered Released, Implementing Settlement

Implementing a 2006 settlement with 25 victims in a clergy sexual abuse case, yesterday a Los Angeles Superior Court judge ordered the Franciscans to release hundreds of pages of personnel files and other documents. AP reports that Judge Peter D. Lichtman ordered the release to be made within 21 days, after ruling on specific documents where objections to public release were raised. It is expected that the documents will reveal when the Catholic order learned of the alleged abuse and how it dealt with those accused.

UPDATE: According to an April 30 report by Canadian Press, the the Franciscan Friars of California Inc. have filed an appeal of the order to release these documents.

Lighted Cross On City Fire Tower Is Center of Dispute

In Reading, Pennsylvania, for at least 50 years the city has displayed a large lighted cross on the city-owned Fire Tower during the Easter season, and a lighted star at Christmas. Now, according to reports in the Reading Eagle and WPVI News, the ACLU and the Appignani Humanist Legal Center wrote the city's mayor threatening to sue if the light grid was turned on this year. (WMVZ has links to the full text of 2 letters sent by AHLC.) Mayor Tom McMahon, nevertheless, continued the decades-old tradition this year, lighting up the cross Feb. 26 at the beginning of Lent. It will remain on until Easter. However, McMahon has asked city attorneys to look into leasing the Fire Tower to a private group that oversaw its renovation a few years ago, or selling it to the group for a nominal amount with a right of first refusal for the city to buy it back if it is ever sold. He thinks this might prevent an Establishment Clause challenge to the display, though he in not sure whether City Council would support the move.

Suit Against FAA By Employee Disciplined for Remarks About Gays Is Settled

A settlement stipulation (full text) has been filed with a Georgia federal district court in Dombrowski v. Federal Aviation Administration. The lawsuit, originally filed in 2006, alleges that the FAA violated a supervisory employee's speech, equal protection and due process rights, as well as his rights under the Religious Freedom Restoration Act, when it suspended plaintiff without pay for 10 days because of conversations he had with non-supervisory employees about religious denominations and about his views on homosexuality. His notice of suspension said that he expressed views, including stereotypes, inappropriate for the workplace. (Full text of complaint.) The settlement agreement calls for the FAA to distribute to all employees in its regional office a copy of Guidelines on Religious Exercise and Expression in the Workplace, originally issued by the White House in 1997. The FAA will also amend plaintiff's attendance records and will pay $9000 in attorneys fees for plaintiff. Alliance Defense Fund issued a release yesterday announcing the settlement.

Some Allegations Are Struck In Sex Abuse Suits Against Diocese

In four decisions on motions to strike portions of the pleadings in pending sexual abuse lawsuits against the Hartford Catholic Diocese, a Connecticut trial court has concluded that most of the allegations can be decided by applying neutral tort principles. The suits seek to hold the Diocese responsible for abuse carried out by two priests. However the court agreed with defendant that ruling on several of the allegations of negligence would involve a constitutionally impermissible examination of internal church governance and clergy employment decisions.

The court struck allegations that the Diocese failed to adequately evaluate the mental fitness of the abusers to serve as Catholic priests and that it induced the Catholic faithful to entrust their children's moral and spiritual well being and safety to priests and then failed to protect the children from sexual abuse. The court said that these claims would require the it to delve into Church doctrine or religious practices. The court also concluded that one child does not have a cause of action based on the Diocese's failure to report suspected abuse of another child. The cases, all decided by the Waterbury (CT) Superior Court on Feb. 24, 2009 are: Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 575; Cerninka v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 581; Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 560; and Mallory v. Hartford Roman Catholic Diocesan Corp., 2009 Conn. Super. LEXIS 590.

Court Enjoins Georgia's Ban on Sex Offenders As Church Volunteers

In Whitaker v. Perdue, (ND GA, March 30, 2009), a Georgia federal district court issued a preliminary injunction to prevent enforcement of provisions in Georgia's sex offender law to the extent that it restricts registered sex offenders from engaging in volunteer activities at churches. The court found that the prohibition in O.C.G.A. § 42-1-15(c)(1) against registered sex offenders being employed by or volunteering at any church is unconstitutionally vague. In particular, there is substantial confusion over what type of participation in church activities turns the individual into a "volunteer" under the statute. In deciding to grant the preliminary injunction, the court said that allowing registered sex offenders "to participate in their faith communities will further public safety by providing support, stability, and a grounded sense of right and wrong. Both the Board of Pardons and Paroles and the GDC recognize that encouraging people to be involved with faith-based programs will reduce recidivism."

Other portions of the court's 39-page opinion dealt with class certification and refused to dismiss plaintiffs' takings clause claims. Yesterday's Gainesville (GA) Times reported on the decision.

Ismaili Muslims Not A "Race" Under Section 1981

In Wilson v. Pepsi Bottling Group, (ND GA, March 30, 2009), a Georgia federal district court held that 42 USC Sec. 1981 was not violated when an association of convenience store owners limited its membership to Ismaili Muslims. Section 1981, enacted in the post-Civil War period, applies to racial discrimination in making or enforcing contracts. The court concluded that at the time of the enactment of Section 1981, Ismaili Muslims would not have been considered a separate race. Nor did plaintiffs prove that only Caucasian non-Ismalis were excluded. Convenience Store News reported on the decision yesterday.

Prayer At Community Policing Meetings Did Not Violate Establishment Clause

The Chicago (IL) police force, as part of its community policing efforts, holds regular "beat meetings" between police officers and community members in various neighborhoods so police and citizens can exchange information and discuss crime problems. In Kaplan v. City of Chicago, 2009 U.S. Dist. LEXIS 25573 (ND IL, March 27, 2009), a former police officer complained that beat meetings she attended opened and closed with Christian prayers. An Illinois federal district court rejected her Establishment Clause challenge on a variety of grounds. It held that plaintiff failed to show that the prayers resulted from "state action" rather than the initiative of community members. She did not show that she was coerced to participate in the prayer or the meetings. Nor did she show that the police department endorsed, rather than merely tolerated, the prayer. Finally the court held that her suit against the city required her to show a municipal policy or custom leading to a Constitutional violation. The court also rejected plaintiff's Title VII claim. She had alleged that her removal from assignments to beat meetings because of her objections was an adverse employment action due to religious discrimination.

Consent Decrees Entered In EEOC Cases On Behalf of Muslim Workers

TMC News yesterday reported that a a Minnesota federal magistrate judge has given final approval to consent decrees settling two related cases involving failure to accommodate religous needs of Muslim workers employed by, or seeking employment with, a chicken producer with plants in Minnesota and Wisconsin. The settlement in EEOC v. Gold'n Plump Poultry, Inc., requires the company to add a paid break during the second half of each shift to accommodate Muslim employees who wish to pray in the course of the work day. The timing of the break will fluctuate during the year to coordinate with the required time for Muslim prayer, but all workers, regardless of religion, will be entitled to the break. Gold'n Plump will also pay damages totalling $215,000 to 128 Somali American Muslims who complained that they were disciplined or discharged for practicing their religion.

In the second case (EEOC v. The Work Connection) brought against an employment agency that recruited workers for Gold'n Plump, the consent decree requires an end to the practice of requiring applicants to sign a form stating that they will not refuse to handle pork products in the course of their work. Some 28 applicants previously turned away for refusing to sign the form will now be offered positions at Gold'n Plump, and they will share in a damage award totalling $150,000.

5th Circuit Hears Arguments On Santeria Slaughter Ban

Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Merced v. City of Euless (recording of full arguments). In the case, a Texas federal district court upheld a decision by the the City of Euless to deny Jose Merced a permit to sacrifice a goat. The animal slaughter was to be part of a Santeria religious ceremony. (See prior posting.) AP and a release from Becket Fund reported on the oral arguments. Becket Fund's Eric Rassbach, representing Merced, argued: "If Euless permits animal killing for hunting, fishing, meat production, pest control and euthanasia, it cannot ban it for religious reasons." The Becket Fund release also links to all the parties' briefs in the case.

Arizona Trespass Conviction Challenges Authority of Utah To Reform FLDS Trust

Yesterday's Deseret News reports on new legal complications in the ongoing attempt by a Utah court to restructure the United Effort Plan Trust that owns the land and homes of Fundamentalist LDS Church members in Colorado City, AZ and Hildale, UT. (See prior posting.) Isaac Wyler, who continues to live in Colorado City, is an employee of court-appointed trustee, Bruce Wisan. Wyler has posted eviction and tax notices on UEP-owned homes and is trying, at Wisan's request, to get FLDS members to sign occupancy agreements. Last month, a Mohave County Arizona judge convicted Wyler on two counts of criminal trespass for entering some of the homes without permission of their residents. It rejected Wyler's defense that he was acting under authority of a Utah court order. On Monday, the judge imposed a suspended 10-day jail sentence, two years probation and a fine of $400 on Wyler. The arrest of Wyler by the Colorado City Town Marshall reflects the decision last year by members of the polygamous FLDS Church to begin to challenge actions to reform the UEP Trust, instead of ignoring the Utah court proceedings as they had done since 2005. (See prior posting.)

Court Says Curfew Law Infringes Free Exercise, Speech Rights

In State of Idaho v. Doe, (ID Ct. App., March 31, 2009), an Idaho appellate court held that Wendell, Idaho's juvenile curfew ordinance is unconstitutionally overbroad. Upholding a facial challenge to the law, the court said that:

by restricting minors' access to all public places during curfew hours, the ordinance severely inhibits the ability of minors to exercise their First Amendment rights for one-quarter of the day.... [They] are precluded from attending midnight church services unless accompanied by a parent or guardian or in possession of a permission slip. They cannot participate in City Council meetings that run late, political caucuses, or general gatherings related to political and social opinions. A minor's freedom of speech, freedom of religion, and freedom of association are all curtailed by the curfew ordinance.

AP reports on the decision.

Recent Prisoner Free Exercise Cases

In Thompson v. Williams, (9th Cir., March 26, 2009), the 9th Circuit rejected a prisoner's free exercise, RLUIPA and equal protection challenges to authorities' refusal to provide him with a Halal, or in the alternative a kosher, diet.

In Daly v. Davis, 2009 U.S. App. LEXIS 6222 (7th Cir., March 25, 2009), the 7th Circuit held that a prisoner's religious exercise was not substantially burdened when he was suspended for a month from the kosher food program after he violated program rules by eating non-kosher food and bartering his kosher food tray for a non-kosher tray.

In Cromer v. Braman, 2009 U.S. Dist. LEXIS 23901 (WD MI, March 25, 2009), a Michigan federal district court rejected a challenge to various actions taken against an inmate because he was a member of "Nation of Gods and Earths" which is classified by prison authorities as a security threat group. Plaintiff claimed that these actions discriminated against him as a member of Nation of Islam.

In Logan v. Lockett, 2009 U.S. Dist. LEXIS 24328 (WD PA, March 25, 2009), a Pennsylvania federal district court rejected an inmate's claim that his rights were infringed when he was excluded from participation in the Ramadan fast and subsequent communal meal with other inmates. The court first held that monetary damages are unavailable under RLUIPA in suits against prison officials in either their official or personal capacities. It also rejected his RLUIPA and 1st Amendment claims, finding that his exclusion stemmed from his disagreement with the teachings of the Imam who led the Muslim congregation at the prison.

In Roby v. Stewart, 2009 U.S. Dist. LEXIS 24413 (ND CA, March 16, 2009), a California federal district court dismissed for failure to exhaust administrative remedies a complaint by a prisoner that his free exercise rights were infringed when authorities double-celled him with an Evangelical Christian who posed a threat and ultimately attacked him because he was a Satanist.

In Cary v. McNeil, 2009 U.S. Dist. LEXIS 23621 (ND FL, March 6, 2009), a Florida federal magistrate judge instructed a pro se plaintiff to file an amended complaint presenting more facts about his claims, including his claim regarding denial of a diet that complies with his religious needs.

In Portune v. Ornoski, 2009 U.S. Dist. LEXIS 24465 (ND CA, March 13, 2009), a California federal district court rejected a prisoner's complaint that he was denied parole because of his refusal to participate in a Narcotics Anonymous program that he said violated his religious beliefs. The court found that the parole board also considered whether he participated in an equivalent drug rehabilitation program.

US Will Seek Seat on UN Human Rights Council

In a statement yesterday, the U.S. State Department announced that the United States this year will run for a seat on the United Nations Human Rights Council. Describing the decision as part of the Obama administration's "new era of engagement", the U.S. said that it can make the Council more effective by working from within. The Bush administration refused to seek a seat, believing that there were insufficient safeguards to prevent countries with human rights violations from becoming members. (See prior posting.) Politico reports on the new policy. Anti-Defamation League expressed concern about the U.S. decision, saying: "Since its inception in 2006, the HRC has virtually ignored the major human rights violations of our times and instead has repeated the entrenched, institutionalized anti-Israeli bias of its predecessor.... We hope the U.S. will be vociferous in its representations against the one-sided anti-Israel pronouncements and can be a force for change within the body."

Court Rejects Jewish Man's Anti-Muslim Conspiracy Charges

In Hummasti v. Ali, 2009 U.S. Dist. LEXIS 25433 (D OR, March 23, 2009), an Oregon federal district court rejected, largely for lack of evidence, a rather outlandish set of RICO, conspiracy and discrimination allegations by a former Portland State University student who was operating an unlicensed food kiosk outside the courthouse in Portland, Oregon. Filing the lawsuit pro se, John Hummasti, who is Jewish, alleged, among other things, that the county health inspector who told him he needed a license for his food kiosk was attempting to impose Islamic law on him and was conspiring to prevent him from collecting charity for the Jewish community in Portland. He alleged that various Islamic groups in Portland had conspired to deny him the right of free speech on public campuses, and that police officers violated his 1st Amendment rights when they arrested him for assaulting a Muslim man who was stopped at a red light near where Hummasti was carrying signs opposing Islamic terrorism in Gaza.

Air Force Institutes Scholarship Program To Train Chaplains

The Air Force has announced the creation of a new religious professional scholarship program, designed to train chaplains in faiths where, at any particular time, there is a shortage of Air Force chaplains Air Force Link reported Monday that the program is open to any commissioned officer or anyone currently enrolled in a commissioning program, such as the Air Force Academy or ROTC. Scholarship recipients will receive tuition grants (presumably for their theological studies), plus stipends to cover certain fees or expenses as determined by Air Force Institute of Technology officials, who are in charge of the academic portion of the program. Scholarship recipients will be required to serve for 8 years. Craig W. Duehring, assistant secretary of the Air Force for manpower and reserve affairs, said: "This program is a huge step forward in providing qualified chaplains for the Air Force." Currently there is a shortage of Catholic chaplains.

Former NFL Coach Invited Onto President's Faith-Based Council

Yesterday's Muncie (IN) Star Press reports that President Barack Obama has invited former NFL Indianapolis Colts coach Tony Dungy to serve as a member of the Advisory Council on Faith-Based and Neighborhood Partnerships. Dungy, author of two books focusing on Christian values, has been in involved with numerous charitable causes. Americans United however issued a press release opposing his selection, saying that Dungy "has well-known ties with intolerant Religious Right groups." It particularly focused on his remarks "at a fund-raising dinner for the Indiana Family Institute, a James Dobson-affiliated group that opposes gay rights, reproductive rights and separation of church and state." (See prior related posting.)

Court Accepts Plea Deal With "Resurrection Clause" In It

Yesterday's Baltimore Sun reports on an odd plea agreement entered by 22-year old Ria Ramkissoon, a member of a religious cult called 1 Mind Ministries. The cult's leader, Queen Antoinette, is accused of ordering cult members, including Ramkissoon, to withhold food and water from Ramkissoon's 2-year old son, Javon. This led to Javon's death. Antoinette believed that Javon was a demon because he did not say Amen after he was fed. Under her plea agreement, in exchange for testifying against other cult members Ramkissoon's 20 year sentence will be reduced to time already served plus 5 years' probation (plus two 8-hour deprogramming sessions). The unusual added clause however is one that provides charges will be dropped if Javon is resurrected-- as the Ramkissoon believes he will. Prosecutors say the clause stipulates a "Jesus-like resurrection, which is distinguished from a reincarnation" as an animal or object.

School Agency's Creationism Neutrality Does Not Violate Establishment Clause

In Comer v. Scott, (WD TX, March 31, 2009), a Texas federal district court rejected an Establishment Clause challenge to a policy of the Texas Education Agency that required its Director of Science to remain publicly neutral regarding the teaching of creationism. The Director, Christina Comer, was fired for forwarding to two listservs and seven science educators an announcement about an anti-Creationism talk that was being presented in Austin. The court emphasized that the Texas Education Agency supports the elected State Board of Education as the Board develops curriculum, and Agency employees are prohibited from taking sides on issues that the Board must resolve. The court concluded that the neutrality policy does not advance religion and therefore does not violate the Establishment Clause. It rejected Comer's argument that the neutrality policy amounted to the Agency's unconstitutionally treating religion like science. The Dallas Morning News reported on the decision yesterday. (See prior related posting.)

Illinois Break Away Episcopal Diocese Files Declaratory Judgment Action

The Diocese of Quincy (IL) which last year broke from the Episcopal Church and affiliated with the Anglican Province of the Southern Cone has filed a declaratory judgment action in Illinois state court to clarify its rights to hold and manage diocese endowment funds. Virtue Online reported yesterday that the filing of the suit this week followed a January letter claiming those funds written by the Episcopal Church to the bank holding the endowments. Some of the churches in the Quincy Diocese have remained loyal to the Episcopal Church and are forming a new diocese.

India Supreme Court Rejects Muslim Student's Challenge To Grooming Rule

India's Supreme Court on Monday rejected a challenge by a Muslim high school student to school rules that require him to shave his beard. The National and UCANews yesterday reported on the decision that permits a Catholic school, the Nirmala Convent Higher Secondary School, to enforce its grooming policy. Sixteen year old Mohammad Salim claimed that the ban violates his constitutionally protected right to practice his religion. He also argued unequal treatment since Sikh students are permitted to wear beards and turbans. Justice Markandey Katju said: "We should strike a balance between rights and personal beliefs." He also added: "We don’t want to have Taliban in the country. Tomorrow a girl student may come and say that she wants to wear a burqa [in the school] – can we allow that?"

President Signs Law Extending Foreign Religious Worker Program To Sept. 29

On March 20, President Obama signed H.R. 1127, a bill that makes "SR visas" under the special immigrant non-minister religious worker program available to aliens seeking to enter the U.S. before September 30, 2009. Under prior law the program had expired March 6. The State Department's website reports on the signing. Last December, the Department of Homeland Security amended regulations implementing the program. (See prior posting.) [Thanks to Josh Gerstein's Blog for the lead.]

Paper Says Catholic Church Knew of Priest Abuse Problem Earlier Than Previously Thought

National Catholic Reporter yesterday ran a long article disclosing that:

decades before the clergy sexual-abuse crisis broke publicly across the U.S. Catholic landscape, the founder of a religious order that dealt regularly with priest sex abusers was so convinced of their inability to change that he searched for an island to purchase with the intent of using it as a place to isolate such offenders....

Fr. Gerald Fitzgerald, founder of the Servants of the Paracletes, an order established in 1947 to deal with problem priests, wrote regularly to bishops in the United States and to Vatican officials, including the pope, of his opinion that many sexual abusers in the priesthood should be laicized immediately. [Full text of letters.]

Ontario Expands Permissible Religious References On Personalized Plates

In Canada, Ontario's Ministry of Transportation announced last week that it was revising its personalized license plate program to permit religious titles to be used on personalized plates. The department says it has been guided by a report of a voluntary advisory panel (full text of report). Instead of the current rules that ban all religious messages, the panel urged the following guidelines:

Positive or neutral expressions of religious beliefs and mythology are permissible; including references to religious celebrations, titles, leaders and symbols. All religions and beliefs are permissible.... Negative, pejorative or derogatory reference to any religion whatsoever are not permitted.... Any meaning implying the superiority or exclusivity of one religion or creed over others or proselytizing statements are prohibited....

Suit On Court Employees' Bible Study Group Settled

Christian Examiner reported yesterday on a settlement in Barlow v. Superior Court of California, a case in which several court employees in San Diego sued to challenge the denial of their request to use an open jury room or court room for their weekly lunch-time Bible study meeting. (See prior posting.) The settlement permits employees to resume their Bible study, and San Diego County Superior Court agrees to pay some of plaintiffs' attorney's fees.

Morocco Takes Action Against Shiites, Christians

AFP reported last week that the Moroccan government has begun a campaign to counter activities that are seen as contrary to the "moral and religious values" of Moroccan society. Dozens of people suspected of Shiite sympathies have been arrested. Moroccans largely follow the Malakite school of Sunni Islam. The government is also attacking those calling for greater tolerance of homosexuality.

According to Earth Times yesterday, the government campaign has now spread to countering Christian activities. Four Christian missionaries (3 Spaniards and a German woman) were expelled from Morocco after it was alleged that they were illegally engaged in Christian proselytizing at a meeting they held in Casablanca on Saturday. However sources close to the missionaries say that only Christians were attending the communion meeting. The actions against Shiites were prompted in part by a broader controversy in the Middle East over a statement made last month by Iranian official, Ali Akbar Nateq-Nouri, who threatened Bahrain's sovereignty by announcing that Bahrain was historically a province of Iran. (New York Times, 3/29.)

Famous Indian Parliamentary Candidate Arrested For Anti-Muslim Speeches

In India, the battle over the candidacy of Varun Sanjay Gandhi, grandson of former Prime Minister Indira Gandhi, continues. Varun Gandhi, a member of the BJP, is a candidate for the lower house of India's Parliament, running from a district in the state of Uttar Pradesh. BBC News reported last week on the March 22 Order of the Election Commission (full text) recommending that Gandhi not be nominated as a candidate because of two speeches he made last month that contained highly derogatory references to the Muslim community. The BJP however continues to support Gandhi as a candidate, saying that the Election Commission was biased and lacked authority to disqualify Gandhi.

Initially two criminal cases were filed against Gandhi, one charging his with violations of India Penal Code 153A (promoting enmity between different groups on ground of religion), 295A (deliberate acts intended to outrage religious feelings), and 505(2) (circulating statements likely to create or promote ill-will between religious groups). The other was brought under Sec. 125 of the Representation of the People Act 1951 (promoting enmity between classes in connection with election). Then on Sunday, according to India.com, additional charges were also filed by the Uttar Pradesh government under the National Security Act. Under that Act, a person arrested can be detained without bail for up to one year. However, he can contest his detention before a 3-person Advisory Board headed by a High Court judge.

Paper Profiles FLDS Ranch One Year After Raid

Yesterday's Deseret News profiles the situation at the FLDS "Yearning For Zion Ranch" in Eldorado, Texas one year after a high-profile raid that temporarily took 439 children from the compound into state custody. Many families on the ranch were polygamous and state authorities argued that the children's safety was in danger. (See prior posting.) The FLDS temple on the ranch is no longer in use, but many families are back. Many children are still feeling the effects of having been temporarily placed in foster homes.

8 Venezuela Police charged In Attack on Caracas Synagogue

AP reported last Thursday that in Venezuela prosecutors filed formal charges against eight police officers and three other people in connection with the January attack on Tifaret Israel synagogue in Caracas. Among those charged is the bodyguard for a rabbi and one of the security guards on duty at the synagogue. Prosecutors have asked the court to approve charges of robbery, "acts of contempt against a religion," and concealing firearms. The attackers destroyed religious objects, spray-painted anti-Semitic slogans and took a computer database with the names and addresses of Jews in Venezuela. Police believe that the attackers were looking for cash to steal. The attack took place shortly after Venezuela's President Hugo Chavez cut off diplomatic ties with Israel over its actions in Gaza. Chavez has condemned the synagogue attack.

Senate Leader Will Repropose Federal Polygamy Task Force

Last Friday, U.S. Senate Majority Leader Harry Reid announced that he would reintroduce legislation this session to set up a federal task force to focus on polygamy-related crime. According to Saturday's Salt Lake Tribune, Reid also said he will urge new Attorney General Eric Holder to take action against crime in polygamous communities. In connection with similar proposals last year by Reid, the Senate Judiciary Committee in July held hearings titled "Crimes Associated with Polygamy: The Need for a Coordinated State and Federal Response." (Witness list with link to webcast of hearing.) Reid is a Democrat from Nevada and a convert to Mormonism.

Recent Articles of Interest

From SSRN:

• Calvin R. Massey, Church Schisms, Church Property, and Civil Authority, (March 26, 2009).


• Harry G. Hutchison, Putting the World Back Together? Recovering Faithful Citizenship in a Postmodern Age, (George Mason Law & Economics Research Paper No. 09-21 , March 25, 2009).


• Ali Khan, Jurodynamics of Islamic Law, (Rutgers Law Review, Vol. 61, No. 2, 2009).


• Albert H.Y. Chen, Three Political Confucianisms and Half a Century, (March 22, 2009).

From SmartCILP:

• Alan E. Garfield, Finding Shared Values In a Diverse Society: Lessons From the Intelligent Design Community, 33 Vermont Law Review 225-281 (2008).


• Jay Alan Sekulow & Erik M. Zimmerman, Pleasant Grove City v. Summum: Upholding the Government's Authority to Craft Its Own Message Through Privately Donated or Funded Monuments, Memorials, and Artwork, 3 Charleston Law Review 175-204 (2009).


• Lecture. The Bible and American Law. Lecture by Herbert W. Titus; responses by Jeffrey C. Tuomala and Michael J. DeBoer; responses by Herbert W. Titus, 2 Liberty University Law Review, 305-417 (2008).


• Symposium. The Supreme Court's Hands-Off Approach to Religious Doctrine. [Table of contents]. Introduction by Samuel J. Levine; articles by Christopher L. Eisgruber & Lawrence G. Sager, Richard W. Garnett, Andrew Koppelman, Bernadette Meyler and Kent Greenawalt, 84 Notre Dame Law Review 793-928 (2009). [Links are to full text of articles.]


• The Future of Law, Religion, and the Family. A 25th Anniversary Symposium. [Table of contents.] Foreword by Leah Ward Sears; Articles by Enola G. Aird, Stephen L. Carter, Don S. Browning, Margaret Brinig and Jean Bethke Elshtain, afterword by John Witte, Jr. 58 Emory Law Journal 1-102 (2008). [Links are to full text of articles.]

Controversy Continues Over Notre Dame's Commencement Invitation To Obama

Notre Dame University's invitation to President Barack Obama to speak at commencement and receive an honorary degree continues to generate controversy. In addition to Bishop John D'Arcy of the Diocese of Fort Wayne-South Bend who previously announced his opposition (see prior posting), now two other bishops have issued strong statements opposing the invitation. Bishop Thomas J. Olmstead of Phoenix wrote Notre Dame President Rev. John Jenkins on Wednesday saying that the invitation "is a public act of disobedience to the Bishops of the United States." (Full text of letter; CNA report.) On Friday, Bishop Gregory Aymond of Austin (TX) wrote in his diocese newsletter that "it is very clear that in this case the University of Notre Dame does not live up to its Catholic identity." (Full text of letter; LifeSite News report.)

A lengthy AP report yesterday quotes a number of individuals connected with Notre Dame who support the invitation, pointing out that the University has a tradition of inviting newely-elected U.S. Presidents from both parties as commencement speakers. Inviting the first African-American U.S. President has special significance because of the long record of former Notre Dame president Theodore Hesburgh in the civil rights movement.

Meanwhile, at another Catholic college, St. Vincent College in Latrobe, Pennsylvania, U.S. Senator Robert Casey has cancelled his commencement address scheduled for May 9. While Casey offered no explanation, LifeSite News reported last week that Casey was strongly criticized by Bishop Joseph Martino of Scranton for his recent vote against an amendment to restore the Mexico City Policy-- a policy that denied foreign aid funds to family planning groups that engaged in abortion counselling. (See prior posting.)

Suit Challenges Cross In California City Park

Yesterday's Visalia (CA) Times-Delta reports on a lawsuit filed two weeks ago by a former resident of Porterville, California challenging the constitutionality of a 20-foot high redwood cross in a Porterville city park. The cross was placed in the park in 1965 by the local Rotary Club with the city's permission. A plaque below the cross reads: "Dedicated as a Spiritual Inspiration to All." Plaintiff Patrick Greene has a history of filing Establishment Clause challenges to governmentally sponsored religious displays and activities in various cities. Porterville residents express surprise that anyone would sue over the cross that a past-president of Rotary who helped install it describes as merely an unobtrusive symbol in a quiet grassy corner. [Thanks to Scott Mange for the lead.]

Church Sues Over Fee Schedule For Use of Village Meeting Room

In Michigan, a church has filed suit in federal district court against the village of Fife Lake challenging the rental fee schedule imposed by the village for use of a meeting room in its Municipal Building. The complaint (full text) in Forest Area Bible Church v. Village of Fife Lake Council, (WD MI, filed 3/24/2009) alleges that the village allows community organizations and service groups to use the meeting room without charge, but charges a rental fee to private non-profit groups such as the church. The suit alleges that this discriminatory treatment violates plaintiff's 1st and 14th Amendment rights. An Alliance Defense Fund release on Friday announced the filing of the suit.

Subjective Chill On High Schooler's Expression Does Not Create Standing

Last week, an Illinois federal district court handed down another decision in the long running challenge to rules in a suburban Chicago high school that were invoked to prevent a student, Alexander Nuxoll, from wearing a T-shirt and button carrying the slogan "Be Happy, Not Gay." (See prior posting.) In Zamecnik v. Indian Prairie School District #204 Board of Education, 2009 U.S. Dist. LEXIS 23548 (ND IL, March 24, 2009), the court held that Nuxoll has standing to continue to pursue this claim. However he lacks standing to assert added claims that he wishes to "bring his bible to school, distribute cards with bible verses during non-instructional time, and discuss his religious beliefs critical of homosexual behavior with classmates during non-instructional time." There was no showing that Nuxoll ever attempted to carry out such activities or that officials ever interfered with them. It is not enough to allege subjective chilling of expression based merely on the fact that existing rules could be interpreted to prohibit these activities.

Fish and Wildlife Service Is Investigating Illegal Eagle Feather Sales

Yesterday's Bismark (ND) Tribune reports on a number of indictments that have come out of a broad investigation by the U.S. Fish and Wildlife Service of individuals who are illegally buying, selling and receiving eagle feathers. The investigation covers 16 states and the U.S. Pacific Island Territories. The Oregonian reported on Friday that Reginald D. Akeen, one of the men arrested as a result of these investigations, has pleaded not guilty in an Oregon federal district court to charges of violating the Migratory Bird Treaty Act. Akeen, a member of the Kiowa tribe from Oklahoma, was arrested March 12 in Albuquerque, N.M., on charges that he illegally sold feathers as he traveled to various pow wow's in the West. Demand for eagle feathers for use in Native American religious ceremonies is high.

Recent Prisoner Free Exercise Cases and Developments

In Smith v. Frank, 2009 U.S. Dist. LEXIS 22848 (ED WI, March 20, 2009), a Wisconsin federal district court rejected a Native American inmate's claim that his rights under RLUIPA were violated when a eagle feather he possessed was confiscated and eventually inadvertently destroyed.

In Spence v. Frank, 2009 U.S. Dist. LEXIS 23095 (ED WI, March 23, 2009), a Wisconsin federal district court rejected an inmate's RLUIPA claim, finding that he was not punished because he called his social worker by her spiritual name, Morning Dove, but rather was punished because he wrote her letters telling her that he loved her and calling her "Smurf".

In Colquitt v. Ellegood, 2009 U.S. Dist. LEXIS 23305 (MD FL, March 20, 2009), a Florida federal magistrate judge rejected an inmate's claim that his free exercise rights were violated when the copy of a Quran furnished to him in jail had too small print and the jail rejected a larger print version purchased for the inmate by his wife and mailed from Amazon.com.

In Taylor v. Grannis, 2009 U.S. Dist. LEXIS 23311 (ND CA, March 12, 2009), a California federal district court permitted an inmate to move ahead with claims under RLUIPA that he was improperly denied permission to have tobacco products for a religious ceremony.

The Maryland Daily Record reported last week that Maryland prisons plan to begin offering kosher meals to observant Jewish prisoners. The program will start in time for Passover next month. Two cases are currently in the courts claiming that Maryland officials had refused to accommodate prisoners' requests for kosher diets.

USCIRF Reveals Previously Secret State Department Action On Religious Liberty Violators

Rather odd developments in implementing the International Religious Freedom Act were reported yesterday in a press release from the U.S. Commission on International Religious Freedom. Under the statute enacted in 1998, by May 1 each year USCIRF is to submit a report on religious freedom in various countries around the world to the State Department, the President and Congress. Then, taking into account USCIRF's recommendations, by September 1 each year the State Department is to submit an Annual Report on International Religious Freedom to Congress. The Act also requires the President to annually designate the worst violators of religious freedom to be "countries of Particular concern"(CPC) and to take any of a number of actions against those countries, unless he grants a waiver.

Despite the call for annual designations, the Bush administration, while submitting annual reports, had not updated its CPC list since 2006. Last September, USCIRF criticized the State Department for not having updated its designations. (See prior posting.) Now it turns out that just before leaving office, the Bush administration did take action to redesignate the same 8 countries as it had placed on its CPC list in 2006. On January 16, the administration named Burma, Eritrea, Iran, North Korea, the People's Republic of China, Saudi Arabia, Sudan, and Uzbekistan, but, as in the past, gave waivers to Saudi Arabia and Uzbekistan.

The puzzling part of this, however, is that according to USCIRF, while the designation was made, "the list was not made available until this week, when the Obama State Department released the list in response to a U.S. Commission on International Religious Freedom (USCIRF) inquiry." Now the State Department’s website also reports the January redesignation on a page titled Frequently Asked Questions: IRF Report and Countries of Particular Concern.

Court Upholds Texas Pledge Containing "Under God"

In Croft v. Perry, (ND TX, March 26, 2009), a Texas federal district court has rejected an Establishment Clause challenge to the Texas Pledge of Allegiance. The Pledge, recited in public schools, reads: "Honor the Texas flag; I pledge allegiance to thee, Texas, one state under God, one and indivisible." (The disputed language was added to the Pledge in 2007. See prior posting.) Texas laws permits students to opt out of reciting the pledge. In the suit brought by parents of school children, the court found a secular legislative purpose and concluded that the pledge did not amount to an endorsement of religion. The court added: "simply asserting that the Texas pledge contains a religious phrase does not transform the Texas pledge from a voluntary patriotic act into a compulsory religious prayer." A press release from Texas Attorney General Gregg Abbott discusses the decision, as does a report in today's Dallas Morning news. (See prior related posting.) [Thanks to Alliance Alert for the lead.]

New Hampshire AG Releases More Clergy Abuse Files

In New Hampshire, Attorney General Kelly A. Ayotte's office has released files on dozens of sexual abuse allegations against Catholic clergy. Most of the charges relate to incidents decades ago, but some claim abuse as recently as 2000. The files disclose the identities of 27 members of the clergy who had not previously been publicly named. Thursday's New York Times reports that the files contain significant information on the communications between the Diocese of Manchester and prosecutors after the clergy sex abuse scandal erupted in 2002. In a 2002 settlement, the Diocese agreed to annual audits by the state’s Attorney General.

Final Texas Science Curriculum Standards Are Adopted

There is a good deal of disagreement on the who won in the final version of the Texas science curriculum standards that were adopted by the State Board of Education on Friday by a vote of 13-2, after numerous amendments were approved. Today’s Dallas Morning News, New Scientist and Wall Street Journal all report on various aspects of the Board’s meeting. As expected, the Board affirmed a vote earlier this week not to go back to former language that would call on students to analyze the "strength and weaknesses" of scientific theories. (See prior posting.) In 8-7 votes, the Board deleted two sections that would have required high school biology classes to examine the "sufficiency or insufficiency" of common ancestry and natural selection of species.

However, the Board inserted other provisions that critics see as a wedge to introduce Creationism or Intelligent Design into the curriculum. Biology students are to “analyze and evaluate scientific explanations” on the complexity of cells as well as data on the “sudden appearance and stasis and the sequential groups in the fossil record." The Earth Science curriculum that was adopted calls for students to learn that there are "differing theories" on the "origin and history of the universe."

These changes will affect the review of textbooks by the Board in two years. Texas is such a large purchaser of books, that publishers often tailor the books they offer nationally to Texas standards.

Pastor's Suit Challenging Arrest For Gay Pride Protest Is Settled

According to Thursday's Wichita (KA) Eagle, a settlement has been reached in a federal lawsuit that was filed last year by a pastor who was arrested for preaching and distributing literature on a sidewalk near a park where a Gay Pride event was being held. (See prior posting.) A consent decree handed down this week stipulates that the city violated Pastor Mark Holick’s 1st and 14th Amendment rights, and awards him $11,700 in damages and $2,500 in attorneys’ fees. Wichita’s city attorney says that the officers who arrested Holick mistakenly thought the sidewalk was part of the park where the event was being held.

Proposed Armenian Religion Law Passses First Reading

Forum 18 reported earlier this week on proposed amendments to Armenia’s Religion Law and a proposed new Armenian Criminal Code provision containing fairly broad restrictions on proselytizing. The proposed laws passed their first reading in Parliament March 19, but further action will be delayed while the laws are reviewed by the Council of Europe's Venice Commission and the OSCE. The new Religion Law will require 500 adult citizens as members to register a religious community. (This is down from 1000 that appeared in the first draft of the proposal, but is an increase over the 200 that is found in current law.) The proposed law also recognizes "the exclusive mission of the Armenian Apostolic Holy Church as the National Church in the spiritual life of the Armenian people…" This is similar to language in 2005 amendments to the country’s Constitution. Religions that "exercise or try to exercise control over members' personal life, awareness, health, and ownership" are banned by another provision in the draft law.

NY Budget Cuts Will Delay Speedy Autopsies Needed By Muslims and Jews

New York City’s Chief Medical Examiner says planned state budget cuts will force extensive staff reductions which, in turn, will have a particular impact on observant Muslims and Jews. They may be unable to obtain the rapid autopsies that are necessary to meet their religious requirements for speedy burial. CBS 2 News reported Thursday that the Medical Examiner’s office faces cuts of $18 million.

Vietnam Court Rejects Appeal of Catholic Demonstrators

In Vietnam, a court has rejected an appeal by eight Roman Catholics who had been convicted and given suspended sentences, probation and, in one case, merely a warning, after engaging in demonstrations in Hanoi last year. AP reported Friday on the appeal of the convictions for disturbing public order and damaging property growing out of a prayer vigil seeking return of land once owned by Thai Ha Church in Hanoi. Defendants say their activities were protected speech. Government authorities contend that the land was turned over to the city, and have since turned it into a park. (See prior related posting.)

NY High Court Rejects Claim By Woman Against Priest With Whom She Had Affair

In Doe v Roman Catholic Diocese of Rochester, (NY Ct. App., March 26, 2009), New York's high court dismissed a lawsuit by a woman (identified only as Jane Doe) against Father Peter DeBellis, a Catholic priest who Doe consulted for counselling. The suit by Doe and her husband alleged that Doe began a sexual relationship with DeBellis that lasted for more than three years. The relationship and the counselling continued despite repeated complaints to the Diocese by Doe's husband, who is also a plaintiff in the lawsuit. Plaintiffs brought a breach of fiduciary duty claim against Father DeBellis, and claims for negligent supervision and retention against the Diocese. Relying on a case it decided last year (see prior posting), the court held:

The complaint ... falls short of what is necessary to state a claim for breach of fiduciary duty. The bare allegation that Jane Doe was "a vulnerable congregant" is insufficient to establish that plaintiff was particularly susceptible to Father DeBellis's influence. Nor does the complaint provide any other allegations to show that the parties had a relationship characterized by control and dominance. Plaintiffs' claims for negligent supervision and retention against the Diocese likewise fail.

Newsday yesterday reported on the decision.

Sen. Grassley May Subpoena Records of One or Two Televangelists

BNA's Daily Report for Executives [subscription required] today reports that Sen. Charles Grassley says he may subpoena records from those televangelists who have failed to cooperate with him in his investigation of their financial dealings. In 2007, Grassley began an investigation of possible abuse of tax-exempt status by six high-profile "prosperity gospel" ministers. Grassley says that he has received complete information from two ministries and more limited cooperation from two others. Kenneth Copeland Ministries says it will cooperate only if an investigation is carried out by the IRS through a church tax inquiry. Creflo and Taffi Dollar of World Changers Church International and Creflo Dollar Ministries have refused to provide any of the requested data. (See prior related posting.)

Award of Rabbinical Court Vacated For Non-Disclosure of Relationship To A Party

In Matter of Beth Jacob Teachers Seminary Inc. v Le'Bunos, (NY Kings Co. Sup. Ct., March 24, 2009), a New York trial court took the unusual step of vacating an arbitration award made by a Rabbinical Court (bet din) on the ground that the arbitrator failed to disclose facts that may support an inference of bias. Two religious organizations that were parties to a lease agreed to submit a dispute over the scope of the lease to the Rabbinical Court of Tzedek Umishpot. Unknown to the lessee, an employee of the lessor was married to Rabbi Yerachmiel Barash who served as secretary and clerk to the Rabbinical Court. This information surfaced when at a Rabbinical Court hearing, Rabbi Barash-- at the urging of one of the Rabbis on the arbitration panel-- telephoned his wife to obtain verification of certain rental date information. [Thanks to Y.Y. Landa for the lead.]

Archbishop Talks About Obligations of Catholics In the Public Square

The Pew Forum last week published a long interview with Denver Archbishop Charles Chaput on the political obligations of Catholics. Chaput, author of the recent book Render Unto Caesar: Serving the Nation by Living Our Catholic Beliefs in Political Life, says in the interview:

we Catholics serve Caesar best when we serve God first, and that means living our Catholic beliefs vigorously, faithfully and without apologies at home and in the public, at work and in the voting booth. We can’t ignore the sufferings of the poor or the homeless or undocumented immigrants and then claim to be good Catholics. We also can’t ignore the killing of unborn children without struggling to end that daily homicide – not just through supportive social policies, but by changing the law.

[Thanks to Brad Pardee via Religionlaw for the lead.]

Belarus Appeals Court Rejects Challenge To Religious Registration Law

Forum 18 yesterday reported on a March 2 decision by the Supreme Court of Belarus that rejected a constitutional attack on the country's religion law. The law requires registration of religious groups. (The Supreme Court is not the highest court in Belarus. The highest court for constitutional interpretations is the Constitutional Court.) In the appeal, brought by a Pentecostal pastor who had been fined the equivalent of $149 (US) for leading an unregistered congregation, the court's Vice-chairman Valeri Kalinkovich rejected arguments that the registration provisions violate the religious freedom protections found in Articles 23 and 31 of the Belarus Constitution and in Art. 18, Part 3 of the International Covenant on Civil and Political Rights.

8th Circuit Says Missouri's Procedure For Approving Specialty Plates Is Invalid

In Roach v. Stouffer, (8th Cir., March 26, 2009), the U.S. 8th Circuit Court of Appeals held unconstitutional Missouri's statute that gives the legislative Joint Committee on Transportation Oversight broad authority to approve or reject applications for creating new specialty license plates. The statute permits a veto of proposed plates by small numbers of legislators. The Court found that the Joint Committee's unbridled discretion creates the potential for unconstitutional viewpoint discrimination. The suit was brought by an organization whose request for a "Choose Life" license plate had been denied after objections from two state senators. In upholding an injunction ordering the state to issue the plates, the court joined three other Circuits in holding that messages on specialty plates are private speech, not governmental speech. The court reasoned:

The primary purpose of Missouri's specialty plate program is to allow private organizations to promote their messages and raise money and to allow private individuals to support those organizations and their messages.... With more than 200 specialty plates available to Missouri vehicle owners, a reasonable observer could not think that the State of Missouri communicates all of those messages.

In a release on the decision from Alliance Defense Fund (which represented plaintiffs) indicates that Missouri has already begun to sell the plates since the Court of Appeals had refused to stay the injunction previously issued by the district court. The Kansas City Star also reports on the decision.

UN Human Rights Council Again Adopts Defamation of Religion Resolution

Yesterday the United Nations Human Rights Council again adopted a non-binding "defamation of religions" resolution by a vote of 23 yes, 11 no and 13 abstentions. (AP report). The resolution was introduced by Pakistan on behalf of the Organization of the Islamic Conference, and was co-sponsored by Belarus and Venezuela. The lengthy document (full text):

Urges all States to provide, within their respective legal and constitutional systems, adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from defamation of religions and incitement to religious hatred in general, and to take all possible measures to promote tolerance and respect for all religions and beliefs;

A version of the resolution has been adopted in a U.N. body each year since 1999. The Becket Fund reports that this year 180 non-governmental organizations from 50 countries had signed a petition (full text) urging rejection of the resolution. Western countries have opposed the underlying premise of the resolution, arguing that it is individuals, not religions, that have rights. The United States is not a member of the Human Rights Council. (See prior related posting.)

Texas Board Largely Supports Teaching Of Evolution Without Adding Alternatives

Yesterday the Texas State Board of Education again more or less reaffirmed its earlier decision to mandate teaching of evolution in a manner consistent with mainstream science. After hearings in January, the Board preliminarily voted 8-7 to drop prior languge in the state's science curriculum standards that called for students to analyze the "strength and weaknesses" of scientific theories. (See prior posting.) New, more pro-science, language was adopted that says students should "analyze and evaluate scientific explanations using empirical evidence."

The final set of hearings on these standards began Wednesay. (AP). Yesterday, according to the New York Times, the the Board by a vote of 7-7 refused to adopt a proposal to go back to the old "strengths and weaknesses" language. However, social conservatives were able to add new requirements at various specific points in the curriculum that call on teachers to evaluate the sufficiency of current scientific explanations. For example, Biology standards will now call on teachers to "analyze and evaluate the sufficiency or insufficiency of natural selection to explain the complexity of the cell." A final Board vote is to be taken today. It is expected to reaffirm yesterday's result since one additional Board member will participate and she has already indicated that she opposes the changes pressed by social conservatives. (Dallas Morning News.)

Suit Challenges Middle School's Refusal To Recognize Religious Club

On Wednesday, the mother of a middle school student in Atlanta filed suit in a Georgia federal district court challenging the refusal by school officials to give formal recognition and free use of meeting facilities at Sutton Middle School to a Christian student group, the STS Club. In Shelton v. Atlanta Public Schools, (ND GA, filed 3/25/2009), the complaint (full text) alleges that school authorities violated the Equal Access Act, as well as the 1st and 14th Amendments in using various excuses to keep STS Club out of the school. Eventually the club was formed, but it is required to pay rent to use facilities before school, and it is denied other benefits given to recognized student organizations. Alliance Defense Fund announced the filing of the lawsuit.

Obama Administration Defends Visa Denial To Muslim Scholar

Reuters reports on arguments last Tuesday before the U.S. Second Circuit Court of Appeals in the case of Muslim scholar Tariq Ramadan who is appealing the denial of a visa by U.S. consular officials. Originally Ramadan sought admission to the U.S. to accept tenured position at the University of Notre Dame. After that became impossible, he continued his request, hoping to attend other academic events in the United States. The district court upheld the government's argument that it could exclude Ramadan because he had contributed funds to an organization which he knew, or should have known, provided funds to Hamas, a Designated Foreign Terrorist Organization. (See prior posting.) Civil liberties had hoped that the Obama administration would reverse what they say was a Bush administration policy to exclude foreign scholars from visiting the U.S. because of their political beliefs. However the government continued to defend the denial, arguing that "consular decisions are not subject to litigation." Assistant U.S. Attorney David Jones said that the decision to continue to deny Ramadan's visa was taken "upwards in the State Department."

Serbian Parliament Passes Anti-Discrimination Law

AP reports that Serbia's parliament today narrowly passed an anti-discrimination bill, despite objections from the Serbian Orthodox Church and others. The bill bans discrimination based on religion, race, gender, sexual orientation and various other grounds. The new law will align Serbia with directives of the European Union and further Serbia's efforts to become a member of the EU-- and its more immediate goal of obtaining rights for Serbian citizens to travel to EU countries without a visa. Church objections focused on a number of provisions, but particularly the ban on discrimination based on sexual orientation. The vote in Parliament was 127-59, with other members absent for the vote. At least 126 votes in the 250-member Parliament were required for passage.

Tajikistan's President Signs Controversial New Religion Law

Tajikistan's President Imomali Rakhmon today signed a controversial new religion law, according to a report from Reuters. Last week the U.S. Commission on International Religious Freedom criticized the law, saying:

If signed, the law will legalize harsh policies already adopted by the Tajik government against its majority Muslim population, including the closure of hundreds of mosques and limiting the religious education of children. Moreover, the law will impose state censorship on religious literature, restrict the conduct of religious rites to officially-approved places of worship and allow the state to control the activities of religious associations....

The new religion law places onerous restrictions on the Muslim community, such as limiting the number of mosques based on the number of local residents and imposing state interference in the appointment of imams. The preface to the law singles out the Hanafi school of Sunni Islam for its "special role" in the development of Tajikistan's "culture and moral life," downplaying the significance of the Shi'a Ismaili minority, which lives in Tajikistan's Mountainous Badakhshan Region.

The law will also cause difficulties for Tajikistan's other religious minorities by dramatically increasing the numerical threshold for registration requirements, as well as requiring the founders of a religious group seeking registration to certify that they have lived in their territory for at least five years and adhered to the religion. The law also requires that a religious community obtain consent of the Religious Affairs Committee to invite foreigners or attend religious conferences outside the country.

The new law will come into force once it is officially published by the government.

Arizona Supreme Court Invalidates Two School Voucher Programs

In Cain v. Horne, (AZ Sup. Ct., March 25, 2009), the Arizona Supreme Court held that two school voucher programs-- one for children with disabilities and the other for children in foster care-- violate the state constitutional prohibition on appropriating public money in aid of any private or sectarian school. (AZ Const., Art. 9, Sec. 10). The court concluded that this "Aid Clause" is neither a mirror image of the provision in Art. 2, Sec. 12 of the state constitution that bars the appropriation of public money for religious instruction, nor is it identical in scope to the federal Establishment Clause. Focusing on the Aid Clause, the court stated:

For all intents and purposes, the voucher programs do precisely what the Aid Clause prohibits. These programs transfer state funds directly from the state treasury to private schools. That the checks or warrants first pass through the hands of parents is immaterial; once a pupil has been accepted into a qualified school under either program, the parents or guardians have no choice; they must endorse the check or warrant to the qualified school.

Arizona Capitol Times reported on the decision yesterday.