Senate Judiciary Hearing Held On Nominees for Civil Rights Division, Judgeships

Yesterday, the U.S. Senate Judiciary Committee held a hearing on three nominees (webcast of hearing):

• Thomas E. Perez, to be Assistant Attorney General, Civil Rights Division, Department of Justice. (See prior posting.)
• David F. Hamilton, to be United States Circuit Judge for the Seventh Circuit. (See prior posting.)
• Andre M. Davis, to be United States Circuit Judge for the Fourth Circuit. (See prior posting.)

CQ reports that the most controversial of the nominations is that of David Hamilton. Apparently, this is because as a federal district court judge, Hamilton wrote two decisions holding that the Indiana House of Representatives, in opening its sessions with sectarian prayer, violated the Establishment Clause. (See prior postings 1, 2.) Republicans boycotted the first Judiciary Committee hearing on Hamilton on April 1, claiming that Democrats were moving too quickly on it. Only one Republican (Oklahoma's Tom Coburn) was in attendance yesterday.

Britain's New Equality Bill Published and Introduced Into Commons

Last Friday, Britain's long-awaited Equality Bill was introduced into the House of Commons, and the bill was published on Monday. (Shoosmiths). Plans for the bill were first announced in the Queen's speech to Parliament last December. (See prior posting). It is designed to place a new equality duty on public bodies, and to consolidate nine existing anti-discrimination laws into one Equality Bill. The Government Equalities Office has posted a web page with links to the full text of the bill and extensive additional information on the proposal. The government's Equality Impact Assessment says in part:

Including religion or belief in the new Equality Duty will require public authorities to consider how to eliminate discrimination, advance equality of opportunity and foster good relations for people of different religions or beliefs. This could result in health and social care providers analysing different levels of use of their services between different communities and taking positive steps to ensure access to services and better outcomes. This might, for example, particularly help Muslim women of Bangladeshi and Pakistani origin who have significantly poorer maternal and child health outcomes and are significantly less likely to access ante-natal services, partly because they are concerned they will be unable to receive services from women.

House Passes Hate Crimes Prevention Act

Yesterday, the U.S. House of Representatives, by a vote of 249-175, passed and sent on to the Senate HR 1913, the Local Law Enforcement Hate Crimes Prevention Act. The bill makes a number of changes in federal law. It expands federal support for local prosecutors investigating hate crimes and expands the definition of hate crimes to include attacks targeted at individuals because of their gender, sexual orientation, gender identity, or disability. It also expands the circumstances in which attacks motivated by an individual's race, color, religion, or national origin are treated as a federal hate crime. Reuters reports on the House action. The bill has been particularly controversial among some conservative Christian groups who claim that it threatens pastors who preach against homosexuality. (See prior posting.)

California High Court Will Not Hear Appeal On Expulsion Of Lesbian Students

The San Francisco Chronicle reports that the California Supreme Court, over the dissent of Justice Kathryn Mickle Werdegar, has refused to review the court of appeals decision in Doe v. California Lutheran High School Association. In the case, brought by two students who were expelled from a Lutheran high school because of their lesbian relationship, the court of appeals held that a private religious high school is not a "business enterprise" and therefore is not subject to the Unruh Civil Rights Act. (See prior posting.)

Suspended Proselytizing Lawyer Sues Charging Conspiracy

Yesterday's West Virginia Record reports on a lawsuit filed last month in state circuit court by suspended lawyer David Harless against a prominent Charleston (WV) lawyer, Scott Segal. (The West Virginia Record last month detailed background on the case and on the suspension of Harless who has been diagnosed with bipolar disorder.) State Supreme Court Justice Robin Davis is Segal's wife. Harless' lawsuit claims that Segal, Davis and others have conspired to keep his law license suspended because of a note regarding religion he left at Segal's office. Segal, who is Jewish, says that Harless has been trying to convert him and several other Jewish lawyers in the area to Christianity, using threatening approaches. Segal's defense will include testimony from numerous members of the Jewish community who have felt threatened by Harless. Now, in a pre-emptive move, Segal has filed a motion to disqualify Kanawha Circuit Judge Louis Bloom from hearing the case. Bloom is also Jewish, and Segal fears that if Harless loses at trial, he will use Bloom's religion on appeal to claim a Jewish conspiracy is responsible.

UPDATE: The May 7 West Virginia Record reports that Judge Bloom said, in a letter to the state's chief justice, that while he does not believe his religion is grounds for recusal, nevertheless he will recuse himself on the ground that both parties to the case are lawyers who have appeared before him in the past, and are likely to in the future.

UPDATE 2: The May 12 West Virginia Record reports that Circuit Judge Alan D. Moats has been appointed by the state Supreme Court to preside over the trial.

New Hampshire Senate Passes Same-Sex Marriage Bill Different From House Version

Yesterday, the New Hampshire Senate passed by a vote of 13-11 a bill authorizing same-sex marriage in the state. The House also approved a same-sex marriage bill last month, but differences between the Senate and House versions mean that the bill must now go back to the House for its approval. HB436, as amended by the Senate, provides:

Any person who otherwise meets the eligibility requirements of this chapter may marry any other eligible person regardless of gender. Each party to a marriage shall be designated "bride," "groom," or "spouse."

The bill also provides that a marriage may be solemnized either in a civil ceremony or a religious ceremony, and that neither clergy nor civil officials shall be required to officiate at any civil of religious marriage ceremony that would violate their free exercise of religion. Baptist Press reports that the Senate amendment clearly recognizing a difference between religious and civil ceremonies convinced Senate Judiciary Committee Chairwoman Deborah Reynolds to vote for the bill in the full Senate after opposing it in committee.

Under the bill, previous civil unions will be recognized as marriages in the state. AP reports that New Hampshire Governor John Lynch has said that the crucial issue is providing the same rights and protections to same-sex couples as to others, and that the state's existing civil unions law does that. Thus it is unclear whether the Governor will sign the same-sex marriage bill even if both houses agree on it.

Court Enjoins Use of RLDS Name By Break Away Church

In Community of Christ Copyright Corp. v. Devon Park Restoration Branch of Jesus Christ's Church, (WD MO, April 23, 2009), a Missouri federal district court granted a preliminary injunction to prevent a break-away church from using the name, initials or signage designs of the Reorganized Church of Jesus Christ of Latter Day Saints (RLDS). According to the Kansas City Star, RLDS has change its name to to the Community of Christ. The court found that Community of Christ however still holds the rights related to its RLDS name.

Michigan Civil Rights Commission Opposes Proposed Rule On Niqabs In Court

According to the Detroit Free Press, the Michigan Civil Rights Commission voted on Monday to oppose an amendment to the Rules of Evidence proposed by the Michigan Supreme Court that would give judges "reasonable control over the appearance of parties and witnesses so as to (1) ensure that the demeanor of such persons may be observed and assessed by the fact-finder, and (2) to ensure the accurate identification of such persons." The proposed amendment (full text) was first published by the Supreme Court last December in response to a federal lawsuit against a district judge for dismissing a woman's case when she refused to remove her niqab while testifying. (See prior posting.) The federal court dismissed the case on procedural grounds. The Civil Rights Commission directed its staff to write the Supreme Court expressing the Commission's concerns. The formal comment period on the proposed amendment expired April 1, and the Court has scheduled a hearing on the proposal (No. 2007-13) for May 12.

Court Says Former Episcopal Congregation Loses Trust In Break-Off

Diocese of Central New York v. Rector, Church Wardens, & Vestrymen of Church of Good Shepherd, (NY Sup. Ct., April 22, 2009), is another installment in the litigation involving property ownership after Church of Good Shepherd in Binghamton (NY) broke away from the Episcopal Church USA and affiliated with the more conservative Anglican Church of Kenya. (See prior postings 1, 2.) Having already ruled that Good Shepherd's property belongs to the Episcopal Church, in this decision the court concluded that Christ Episcopal Church of Binghamton, the alternative beneficiary, is now the primary beneficiary of a trust set up under the will of Robert A. Branan. The court concluded: "By all accounts, Mr. Branan was an active member of The Episcopal Church and there is simply no basis on which to find that Mr. Branan would want his money to go to those former members of The Church of the Good Shepherd that abandoned the faith that he, apparently, held so dear." [Thanks to Y.Y. Landa for the lead.]

Israeli Official Suggests Different Name For "Swine Flu"

Now that two cases of swine flu have been diagnosed in Israel in men who recently visited Mexico, the country's Deputy Health Minister Yakov Litzman is suggesting that the disease be called "Mexican flu" because of Jewish and Muslim sensitivities over pork products. Yesterday AFP and the London Guardian both reported on the comments by Litzman, a member of the United Torah Judaism Party. Not surprisingly, Mexico's ambassador to Israel registered an official complaint over the suggestion. Litzman, by the way, heads the Ministry of Health holding the title of "Deputy" Minister because of another religious nicety. As explained by the Forward in an article earlier this month:

[UTJ] has joined numerous past coalitions without ever accepting a Cabinet ministry, because its non-Zionist principles do not allow it to become part of the state's ruling establishment. Instead, its leaders have become deputy ministers in departments where the minister's chair is left vacant. Therefore, the party can control an influential, patronage-rich ministry without taking an oath of allegiance to the Jewish state.

Court Says District Council Wrongly Took Local Church's Property

In Iglesia Evangelica Latina, Inc. v. Southern Pacific Latin American District of the Assemblies of God, (CA App., April 27, 2009), a California appellate court held that a district council of the Assemblies of God Church improperly assumed corporate control of a local church and had no authority to take title to the local church's real estate. The district council took action against the Church after removing an assistant pastor who had been accused by one faction in the congregation of taking Church funds. The court concluded that it could apply neutral common law property principles to reach this conclusion, reversing the trial court whose decision had focused on the authority of an hierarchical church to adjudicate disputes. Yesterday's Los Angeles Metropolitan News-Enterprise reported on the decision, and the local church faction that prevailed in the appeal issued a lengthy press release describing the background and the implications of the court's holding.

Irish Justice Minister Proposes Blasphemy Law

Irish Times reports today that the country's Minister of Justice plans to introduce an amendment to a pending Defamation Bill to create a new crime of blasphemous libel. The proposed legislation would prohibit publishing or uttering matter "that is grossly abusive or insulting in relation to matters held sacred by any religion, thereby causing outrage among a substantial number of the adherents of that religion; and he or she intends, by the publication of the matter concerned, to cause such outrage." Currently Ireland has no statute on blasphemy, even though the Irish Constitution (Art. 40, Sec. 6.1) provides: "The publication or utterance of blasphemous, seditious, or indecent material is an offence which shall be punishable in accordance with law." Last year the Oireachtas Committee on the Constitution recommended amending the Constitution to remove references to sedition and blasphemy.

Court Finds Land Used By Religious Order Is Entitled To Tax Exemption

In Matter of Legion of Christ, Inc. v Town of Mount Pleasant, (NY Sup. Ct., March 25, 2009), a New York trial court ordered the town of Mount Pleasant to grant a tax exemption to Legion of Christ, Inc. for a parcel of real estate it owned. The town argued that Legion of Christ was not using the real estate exclusively for carrying out its own religious purposes but, instead, was leasing the land to several other groups. The court held that the various organizations, all set up by the Roman Catholic religious order Legionaries of Christ, should essentially be treated as a single organization, i.e. Legion of Christ was carrying out its own religious purposes through a closely related group of organizations. The court held, alternatively, even if the various corporations involved are not seen as a single organization, another exemption provision applies because the land was still being used for religious purposes and the rents received by Legion of Christ did not exceed its carrying, maintenance and depreciation charges for the property. [Thanks to Y.Y. Landa for the lead.]

White House Religious Liaison Appointed

The Adventist News Network today reports on the appointment of Paul Monteiro to serve as religious liaison in the White House Office of Public Liaison. Monteiro's duties include scheduling events and meetings with representatives from various organizations and denominations. Their concerns are then transmitted on to the appropriate office or agency. Monteiro, who also serves as youth liaison in the Office of Public Liaison, is a Howard Law School graduate who had served on Barack Obama's Senate staff. Monteiro recently became a member of the Adventist Church.

Wyoming High Court Finds Free Exercise Claim Improperly Raised In Workers Comp Proceeding

In re Workers Compensation Claim for Howard W. Williams, (WY Sup. Ct., April 21, 2009), involved a claim for workers' compensation death benefits by the wife of a an employee who had refused for religious reasons to allow blood products to be used in treating his injuries from a work-related auto accident. The court held that the constitutional question of whether denial of benefits violated the Jehovah's Witnesses [corrected] husband's free exercise rights was not properly before the court. A constitutional challenge to the statute involved needs to be raised in a separate declaratory judgment action, and cannot be raised in an administrative proceeding which is the source of the ruling being appealed in this case. However, the court reversed the denial of benefits on other grounds. It found that the state failed to show that the husband's refusal of blood products contributed to his death. Chief Justice Voigt dissented on this point, finding sufficient evidence that blood product treatment and immediate surgery were reasonably essential for the husband's recovery.

Alaska High Court Rules On Constitutionality of Required TB Test

In Huffman v. State of Alaska, (AK Sup. Ct., April 3, 2009), the Alaska Supreme Court rejected a claim by parents of elementary school children that their religious liberty rights were violated by the state requirement that their children receive a PPD skin test for tuberculosis in order to enroll in school. The court held that the state requirement survived plaintiffs' 1st Amendment challenge as a neutral law of general application. Analyzing the claim under the free exercise clause of the Alaska Constitution (Art. I, Sec. 4), the court held that the parents had not shown that their objections were based on religious beliefs:

The Huffmans do not profess to subscribe to any organized religion. They rely solely on their affidavits as evidence of their nontraditional religious beliefs. Their statements use the terms "religion" and "religious beliefs," but they discuss only an opposition to putting harmful substances into the body. The record provides no indication that the Huffmans’ feelings are connected to a comprehensive belief system, set of practices, or connection to ideas about fundamental matters.

The court however remanded the case to the lower court for it to consider further plaintiffs' alternative claim that the required TB test violates their privacy interest in making decisions about their children's medical treatments, protected by Article I, sections 1 and 22 of the Alaska Constitution. It instructed the trial court to consider whether alternative tests for TB which do not involve injecting substances into the body could be used effectively to achieve the state's goals.

Mary Ann Glendon Turns Down Notre Dame's Laetare Medal

Harvard Law Professor (and former U.S. ambassador to the Vatican) Mary Ann Glendon has told Notre Dame University President Rev. John Jenkins that she has decided to turn down the prestigious Laetare Medal that she was to have been awarded at the upcoming graduation at which President Barack Obama will speak. (See prior posting.) Yesterday's Boston Globe reprinted Glendon's letter to Jenkins which said she was dismayed when she learned that Notre Dame would also award Obama, who supports abortion rights, an honorary degree. She said that decision by the University was in violation of a policy of the U.S. Conference of Bishops that "those who act in defiance of our fundamental moral principles ... should not be given awards, honors or platforms which would suggest support for their actions." Apparently, according to Glendon's letter, the final straw was "talking points" issued by Notre Dame that suggested Glendon's acceptance speech would be a balance to Obama's remarks.

Florida City Pays Chabad Damges and Attorneys Fees After Losing Zoning Case

Last August, a federal jury awarded Chabad of Nova $325,750 in damages on its RLUIPA claim after a federal district court ruled in favor of Chabad on most of its challenges to a Cooper City (FL)'s zoning restrictions imposed on houses of worship. (See prior posting.) The South Florida Sun-Sentinel reported yesterday that Cooper City's insurer has now agreed to pay the award, plus interest, to Chabad and to also pay $470,000 for Chabad's attorneys fees. Chabad Rabbi Shmuel Posner was forced to move to a shopping center in Davie (FL) after Cooper City prevented his Outreach Center from opening as he had originally-planned. Now Rabbi Posner says he hopes to return to Cooper City when space becomes available. [Thanks to both Steven H. Sholk and Joel Katz [Relg. & State In Israel] for the lead.]

Navajos Plan Meeting With Obama Administration On Pending Snowbowl Case

The Gallup (NM) Independent reported yesterday that the Navajo Nation Council has approved its attorneys meeting with the Obama administration to try to work out a settlement in Navajo Nation v. United States Forest Service. The Navajo Nation hopes that the meeting can be held before My 8 when the Solicitor General's brief in opposition to granting certiorari is due to be filed with the U.S. Supreme Court. (See prior posting.) In an 8-3 en banc decision in the case, the U.S. 9th Circuit Court of Appeals held that the Religious Freedom Restoration Act does not bar the Forest Service from approving the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort, which operates on federal land that the tribes consider sacred. (See prior posting.) Some delegates to the Navajo Council say the organization may have to appeal to international bodies under principles of international law to obtain relief. They point especially to the United Nations 2007 Declaration on the Rights of Indigenous Peoples and the Organization of American States' American Declaration of the Rights and Duties of Man.

National Mock Trial Championship Refuses Religious Accommodation For Jewish School

According to a posting yesterday on the blog Teaneck Progress , the National High School Mock Trial Championship is refusing to accommodate Maimonides High School of Brookline Massachusetts by rescheduling the school's rounds so they do not take place on the Jewish Sabbath. Maimonides, as winner of the Massachusetts Bar Association's statewide competition, is entitled to move to the national competition. This year the nationals are being hosted by the Young Lawyers Division of the State Bar of Georgia on May 6-10, with the schedule calling for actual competition rounds on Friday and Saturday. Accommodation apparently would have required moving two of the rounds from Saturday to Friday. Reportedly both the attorney general of Georgia and the Anti Defamation League have expressed concern over the competition's refusal to grant the requested schedule change.

In 2005, accommodation was made for a New Jersey Jewish day school, but competition organizers voted to refuse accommodation in future years. Following the 2005 incident, the New Jersey State Bar Foundation and the North Carolina Academy of Trial Lawyers created an alternative American Mock Trial Invitational to permit state high school champions with weekend religious obligations to still enter a national competition. Also in 2007, the U.S. House of Representatives passed a resolution urging the NHSMTC to accommodate religious beliefs of students. (See prior posting.)

UPDATE: Here (via Blog of the Legal Times) is the full text of a letter from counsel for some of the Maimonides students and their parents to the U.S. Justice Department asking it to investigate and take action to remedy the accommodation denial.

Controversial Religious Themed License Plates Being Considered In Florida

Saturday's St. Petersburg Times reports on the controversial debate and vote in Florida's legislature over adding two specialty plates with religious themes to the more than 100 license plates already available in the state. According to a report by the ADL, on Friday the Florida Senate added amendments providing for:

The "I Believe" plate which prominently displays a cross over a stained glass window, and directs annual license fees to Faith In Teach[ing], Inc., a religious organization, and

The "Trinity" plate which prominently displays a picture of Jesus wearing a crown of thorns with arms spread.

Fees from the Trinity plate will support the Toomey Foundation for the Natural Sciences. (Trinity plate amendment). The final Senate vote on SB 642 may come as early as today. Opposition by the ADL and ACLU has apparently led to withdrawal of similar proposals for a Trinity plate in the pending House version of the bill. [Thanks to both Scott Mange and Steve Sheinberg for leads.]

CAIR Calls For Florida GOP Leader To Step Down Over Sponsorship of Anti-Islam Event

The Florida Security Council, a private group dedicated to educating the public about the dangers of radical Islam, is sponsoring a "Free Speech Summit" tonight featuring controversial Dutch politician Geert Wilders and his anti-Islamic video Fitna. (See prior posting.) State Rep. Adam Hasner, Republican majority leader in the Florida House of Representatives, is listed as one of 24 "coalition partners" with the Council. Yesterday the Council on American Islamic Relations called on GOP leaders in Florida to demand that Hasner step down from his state leadership position because of his connection with "a gathering at which the faith of millions of Americans is denigrated and their rights denied." The Summit, originally scheduled for the Delray Beach Marriott, has been relocated. The new location is available only by e-mailing the Florida Security Council.

Berlin Rejects Referendum For Optional Religion Classes In Schools

In Germany's capital of Berlin, voters yesterday rejected a referendum that would have given school children an option to take a religion course in place of the mandatory ethics classes that are now offered. Supporters hoped such classes would prevent the rise of Muslim radicalism. AFP reported yesterday that 51.3% of those voting opposed the measure. However, turnout was so low-- 14.2% of all voters-- that even a higher percentage of those voting would not have passed the measure. The current ethics course was introduced after a 2005 "honor killing" in Berlin's Muslim community. Supporters hoped it would foster common values and integration of children from different backgrounds. Most other German cities however permit an option of religion classes with children of different faiths taught separately. The referendum would have imposed that option in Berlin as well.

Recent Articles and Books of Interest

From SSRN:

• Seth Barrett Tillman, Blushing Our Way Past Historical Fact And Fiction: A Response to Professor Geoffrey R. Stone's Melville B. Nimmer Memorial Lecture and Essay, (Jan. 27, 2009).
• Paolo G. Carozza & Daniel Philpott, The Catholic Church, Human Rights and Democracy: Convergence and Conflict with the Modern State, (in The Cross, the Crescent and the Ballot Box: Catholic and Islamic Dialogue on the Rule of Law and International Democracy Promotion, Peter Schraeder, ed., Forthcoming; Notre Dame Legal Studies Paper No. 09-15).
• Cynthia Koploy, Free Exorcise Clause? Whether Exorcism Can Survive America's "New Neutrality", (Northwestern University Law Review, Forthcoming).
• Kenneth W. Starr, Our Libertarian Court: Bong Hits and the Enduring Hamiltonian-Jeffersonian Colloquy, (Lewis & Clark Law Review, Vol. 12, No. 1, 2008).
• Linda C. McClain, Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?, (University of Missouri-Kansas City Law Review, Vol. 77, p. 416, 2008).
• Melissa E. Murray, Marriage Rights and Parental Rights: Parents, the State, and Proposition 8, (Stanford Journal of Civil Rights and Civil Liberties, Forthcoming).
• Cosmin Dariescu & Nadia Cerasela Dariescu, Rabbinical Chancery in Romania - An Alternative to the State Organized Courts in Solving Family Litigations?, (International Society of Family Law: Regional Conference in Israel, June 7-9, 2009).
• Ann Laquer Estin, Unofficial Family Law, (February 1, 2009).

From Bepress:

• Abeer Ghazi Jarrar, Combating a Religious Radical Ideology v. Suppressing Islamic Opposition: Jordan’s Approach to Counterterrorism, (Cornell Law School Graduate Student Papers Series, April 14, 2009).
• Sigit Ardianto, From Secularism into Modified Pluralism: Comprehensive Application of John Rawls’s Justice as Fairness Theory in Defining State and Religion Relationship, (Cornell Law School Graduate Student Papers Series, April 14, 2009).

From SmartCILP:

• Geoffrey C. Hazard, Not the City of God: The Multiplicity of Wrongs and Rules, 42 Akron Law Review 1-11 (2009).

Recent Books:

• Jon A. Shields, The Democratic Virtues of the Christian Right, (Princeton University Press, 2009), reviewed by the New York Times.
• ABA Section of State and Local Government Law, RLUIPA Reader: Religious Land Uses, Zoning and the Courts, (Michael S. Giaimo & Lora A. Lucero, eds.) (April 2009).

San Diego Settles RLUIPA Lawsuit Brought By Church

Yesterday's North County Times reports that a settlement has been reached in a RLUIPA lawsuit brought in 2007 against the city of San Diego (CA) by Grace Church of North County, a non-denominational congregation. The Church had applied for a 10-year conditional use permit to occupy space in a Rancho Bernardo industrial park. The Rancho Bernardo Planning Board refused the request as inconsistent with the community plan for the site. On appeal, the San Diego Planning Commission granted a 5-year permit. Grace Church sued, arguing that the industrial park already has another church and a synagogue in it. Under the settlement, the Church will receive $950,000 in damages and a permit to occupy its space for another 10 years.

Church Sues To Obtain Use of Park For Bible Group Picnics

On Thursday, a Catholic Church in Pensacola, Florida sued city officials to challenge their exclusion from a downtown park of a weekly picnic held by a Bible study group from the Church. The Church members share their food with anyone who happens to be in the park, and then go to the Church nearby for formal Bible study. Originally the Church was told that the park was designated a "non-event park," and subsequently the Church was told use of the park required a permit and payment of a fee under regulations supposedly designed to protect the park's grass. The federal court complaint in St. Faustina Old Catholic Church v. City of Pensacola, (ND FL, filed 4/23/2009) (full text), alleges that the city's policy violates the Church's speech, association, free exercise , due process and equal protection rights protected by the U.S. Constitution as well as Florida's Religious Freedom Restoration Act. Alliance Defense Fund announced the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Seymore v. Joslyn, 2009 U.S. Dist. LEXIS 32545 (ND NY, April 14, 2009), a New York federal district judge rejected a prisoner's claim that a corrections officer retaliated against him for being a Muslim by suggesting that plaintiff fantasizes about having a homosexual relationship with a male corrections employee.

In Eagle v. Gilbert, 2009 U.S. Dist. LEXIS 32976 (ED MI, April 17, 2009), a Michigan federal district court accepted a magistrate's recommendation that an inmate's lawsuit alleging he was prevented from attending Sunday religious services in prison be dismissed. The magistrate's conclusion was based on plaintiff's failure to exhaust administrative remedies in complaining that he was assigned to a Sunday morning work detail that interfered with Protestant services.

In Wakefield v. Indermill, 2009 U.S. Dist. LEXIS 32909 (ED CA, April 6, 2009), a California federal magistrate judge dismissed, with leave to file an amended complaint, a lawsuit brought by a Seventh Day Adventist inmate against a Protestant prison chaplain. The court said plaintiff had not adequately alleged that defendant's refusal to provide him with weekly holy communion and foot washing deprived him of a reasonable opportunity to practice his faith or substantially burdened his free exercise.

In Mello v. Martinez, 2009 U.S. Dist. LEXIS 32878 (ED CA, April 6, 2009), a California federal magistrate judge permitted an inmate to proceed with his free exercise and RLUIPA claims. Plaintiff alleged that two corrections officers destroyed his religious artifacts that are essential to most of his Native American religious ceremonies.

In Zargary v. City of New York, 2009 U.S. Dist. LEXIS 33240 (SD NY, April 20, 2009), a New York federal district court rejected a free exercise claim by an Orthodox Jewish woman who objected to being required to briefly remove her headscarf, worn for religious reasons, while her identification photo was taken upon admission to a state correctional facility.

In Kuperman v. Comm'r, New Hampshire Dept. of Corrections, 2009 U.S. Dist. LEXIS 33701(D NH, April 20, 2009), a New Hampshire federal district court accepted a magistrate's recommendation (2009 U.S. Dist. LEXIS 33702 (April 7, 2009)) to permit an Orthodox Jewish inmate to proceed with his free exercise, RLUIPA and equal protection claims. At issue was the decision of prison authorities to deny plaintiff a waiver to grow his beard for religious reasons longer than one-quarter inch. However claims against certain of the defendants were dismissed.

In Nyholm v. Pryce, 2009 U.S. Dist. LEXIS 34223 (D NJ, April 20, 2009), a New Jersey federal district court permitted an inmate to move ahead with his claim that his free exercise rights were infringed when he was prohibited from attending religious services during his confinement in administrative segregation.

In Scott v. Tilton, 2009 U.S. Dist. LEXIS 34533 (ED CA, April 7, 2009), a California federal magistrate judge dismissed with leave to file an amended complaint an inmate's claim that prison authorities destroyed or donated four religious cassettes that were sent to him, instead of allowing him to retrieve them.

School Board Grants Uniform Exemption On Religious Grounds For 2nd Grader

The Irving, Texas school board this week, by a vote of 6-1, reversed the decision of an elementary school principal and granted a mother's request that her 7-year old daughter be allowed to wear her shirt untucked for religious reasons. Thursday's Dallas Morning News reported that Dyker Neyland says her second grader needs to wear her shirt tail out to comply with the Biblical requirement for modest dress found in 1 Timothy 2:9. The school's rule is part of its dress requirement for students. Before the vote, Neyland told the Board that she thought she was "being persecuted for being a Christian." [Thanks to Scott Mange for the lead.]

Attempt Is Being Made To Re-Create Aryan Nations Headquarters In Idaho

Today's Salt Lake Tribune reports that two men in Cour d'Alene, Idaho are attempting to re-create a headquarters for the white separatist, anti-Semitic group, Aryan Nations, there. Apparently the election of Barack Obama is the catalyst for the new try which so far seems to have little support. The first Aryan Nations group that had been headquartered in Cour d'Alene was put out of business after the Southern Poverty Law Center in 2000 obtained a $6.3 million judgment against it on behalf of two residents who were shot by the group's security guards. Aryan Nations leader Richard Butler was forced to declare bankruptcy. Later the group's compound was leveled and turned into a peace park. Aryan Nations was an outgrowth of the Christian Identity movement, and the Idaho group still calls itself "Church of Jesus Christ Christian" on its website.

DC Circuit Again Says GITMO Detainees Not Covered By RFRA

In Rasul v. Myers, (DC Cir., April 24, 2009), the DC Circuit Court of Appeals reaffirmed its earlier holding that Guantanamo detainees cannot bring an action under the Religious Freedom Restoration Act to challenge alleged religious harassment at GITMO. The detainees alleged abuses such as denial of a Qu'ran and prayer mats, throwing a copy of the Qur'an into a toilet and forced shaving of their beards. The U.S. Supreme Court had remanded the case to the 9th Circuit for reconsideration in light of intervening Supreme Court precedent. (See prior posting.) Now, in a 2-1 decision, the DC Circuit concludes that non-resident aliens are not protected "persons" under RFRA. Judge Brown, writing a concurring opinion, took a different approach. She concludes that a literal application of RFRA's language would cover plaintiffs, but that this was clearly inconsistent with Congress' broader intent in enacting RFRA. She rejected the narrow definition of "person" put forward by the majority, but wrote:

Accepting plaintiffs' argument that RFRA imports the entire Free Exercise Clause edifice into the military detention context would revolutionize the treatment of captured combatants in a way Congress did not contemplate. In drafting RFRA, Congress was not focused on how to accommodate the important values of religious toleration in the military detention setting. If Congress had focused specifically on this challenge, it would undoubtedly have struck a different balance: somewhere between making government officials' wallets available to every detainee not afforded the full panoply of free exercise rights and declaring those in our custody are not "persons." It would not have created a RFRA-like damage remedy, but it likely would have prohibited, subject to appropriate exceptions, unnecessarily degrading acts of religious humiliation. It would have sought to deter such acts not by compensating the victims, but by punishing the perpetrators or through other administrative measures….

In 2000, when Congress amended RFRA, jihad was not a prominent part of our vocabulary and prolonged military detentions of alleged enemy combatants were not part of our consciousness. They are now. Congress should revisit RFRA with these circumstances in mind.

CNN yesterday reported on the decision.

Islamic Parties Lose Support In Indonesian Parliamentary Election

According to a front-page article in today's New York Times, in Indonesian parliamentary elections held earlier this month, Islamic parties that focused on religious issues suffered a drop in support. They received 26% of the vote, compared to 38% in 2004. Though official results are not yet out, polling and partial results show backing for secular parties, even as the historically moderate Muslims in Indonesia are growing more attached to Islam in their private lives.

Group Announces Campaign To Encourage Graduation Prayer

Now that graduation season is upon us, Liberty Counsel this week announced its annual "Friend or Foe" Graduation Prayer Campaign. It says it is "seeking to educate and, if necessary, litigate to ensure that prayer and religious viewpoints are not suppressed during public school graduation ceremonies." It is distributing its legal memorandum on the issue, suggesting student messages, student or outside speakers selected by religion-neutral criteria, or privately-sponsored graduation ceremonies as techniques that can be used, though most of them do not insure that the speaker will present a prayer.

Lawsuit Filed Over Control of Ft. Worth Episcopal Diocese

The controversy between two groups, both claiming to be the Episcopal Diocese of Ft. Worth (TX) (see prior posting), has not surprisingly now found its way into court. The Ft. Worth Star-Telegram reported this week on a lawsuit filed by the reorganized diocese that remains loyal to the Episcopal Church USA against a break-away group that has affiliated with the more conservative Anglican Province of the Southern Cone. The complaint (full text) filed in Tarrant County District Court last week seeks a declaration that plaintiffs are the proper authorities entitled to control and use Diocese property, including the name, seal and other intellectual property of the Diocese. It asks the court to order defendants to vacate the Diocese's real property and seeks an accounting. It also asks for recognition of trustees elected by plaintiff as the proper trustees of the Diocesan Corporation.

Suit Charges Texas AG's Office With Religious Discrimination

Texas Lawyer reports that earlier this month the former appellate section chief in the Texas Attorney General's Child Support Division filed a religious discrimination lawsuit against the AG's office. She claims that Good Friday gets preferential treatment over Jewish holidays. Texas Government Code §662.003(c) and 662.006 provide that state employees may take a paid day off for Rosh Hashana, Yom Kippur or Good Friday, (defined as "optional holidays") but must give up a state holiday during the same fiscal year to make up for it. Plaintiff Rhonda Pressley claims that the AG's office permits employees to take Good Friday afternoon-- but not Jewish holidays-- off without making the time up on another holiday. Her complaint alleges that she was terminated either because she complained to the EEOC about this religious discrimination and/or because she complained that her supervisor favored male employees. The AG's office says that Pressley was terminated for unprofessional conduct.

Iowa Recorders Are Told They Must Issue Same-Sex Marriage Licenses

According to yesterday's Gay & Lesbian Times, now that the Iowa Supreme Court has legalized same-sex marriage in the state (see prior posting), Victoria Hutton of the Iowa Department of Public Health has notified all 99 county recorders that they must issue marriage licenses to same-sex couples. Some of the recorders have religious objections to doing so. Meanwhile yesterday's Des Moines Register reports that Iowa magistrate Francis Honrath has decided he will stop performing all marriage ceremonies. A number of other judges and court officials are expected to take similar stands.

Malaysia Will Bar Conversion of Children Where One Spouse Changes Religion

Islam Online reports that the government of Malaysia yesterday decided that civil marriage laws and other laws should be amended to require that children be raised in the religion that both their parents shared at the time of their marriage. If one spouse converts after the marriage, he or she will not have the right to have the children converted as well. To the extent this will require changes in Islamic law, the issue will be brought to the attention of the Sultans who are in charge of religious affairs. The issue has come up in a recent high profile case in which a Hindu husband converted to Islam and then apparently converted the children as well without the consent of his still-Hindu wife. The wife is suing for custody of the children.

UPDATE: Reaction to the government's decision has been swift. Friday's Malaysia's Star reports that the High Court in Ipoh handed down an initial ruling in the case of the Hindu wife that triggered much of the concern. The court granted M. Indira Gandhi interim custody of her three children and an injunction preventing her husband from entering their home.

Meanwhile, a debate on the constitutionality of the government's decision began. Friday's Bernama reports that the director of the Department of Islamic Development Malaysia says the proposal is inconsistent with Article 12(4) of the Constitution that provides: "the religion of a person under the age of eighteen years shall be decided by his parent or guardian." He emphasizes that the Constitutional language refers to "parent" in the singular. On the other side, Malaysia Today argues that the government's position is constitutional, pointing out that the Eleventh Schedule to the Constitution on interpretive principles provides that "words in the singular include the plural, and words in the plural include the singular."

UPDATE 2: On May 6, PTI reported that a High Court judge granted an interim stay of the order that gave Ghandhi interim custody of her children. The husband claimed the civil court lacks jurisdiction and that he has a custody order issued by a Shariah court. The husband has been evading service of the civil court's interim custody order, and a motion to hold him in contempt is pending.

Nomination of Creationist As Texas Board of Education Chair Is In Trouble

Texas State Board of Education Chairman Don McLeroy was elevated from board member to his chairmanship position as an interim appointment by Gov. Rick Perry in the summer of 2007. Now, finally, the Texas Senate is holding hearings on whether to ratify his nomination to the chairmanship. (Eye on Williamson). The Austin Statesman reports that McLeroy faced "searing questioning" by the Senate Nominations Committee on Wednesday. Sen. Eliot Shapleigh says that McLeroy has used his chairmanship to promote his religious views on issues such as Bible course curriculum, language arts instruction and science standards.

The Houston Chronicle reports that McLeroy, a dentist, admits he is a "young earth Creationist" who believes the earth is about 6000 year old. However McLeroy says he has not pushed his viewpoints into educational policy and that the recently adopted science curriculum standards were not religious. (See prior posting.) McLeroy needs 21 votes from the 31-member Texas Senate for confirmation. It is unclear whether he will be able to get that amount of support. Nominations Chairman Mike Jackson said he will not move ahead on the Senate floor with the nomination if it looks like it would not pass. [Thanks to Scott Mange for the lead.]

Connecticut Law Implements Same-Sex Marriage Ruling With Exemptions For Religious Organziations

Yesterday Connecticut Governor M. Jodi Rell signed S.B. No. 899, a bill to implement the state Supreme Court's 2008 decision validating same-sex marriages. (AP). The bill also recognizes same-sex civil unions from other states and merges Connecticut civil unions into marriages. On Wednesday, the Senate and House both adopted amendments granting extensive religious exemptions. Those exemptions provide:

[A] religious organization ... or any nonprofit institution or organization operated, supervised or controlled by or in conjunction with a religious organization ..., shall not be required to provide services, accommodations, advantages, facilities, goods or privileges to an individual if the request for [them]... is related to the solemnization of a marriage or celebration of a marriage and such solemnization or celebration is in violation of their religious beliefs and faith....

... The marriage laws of this state shall not ... shall not require a fraternal benefit society ... which is operated, supervised or controlled by ... a religious organization to provide insurance benefits to any person if to do so would violate the fraternal benefit society's free exercise of religion as guaranteed by the first amendment to the Constitution of the United States and section 3 of article first of the Constitution of the state.

Nothing in this act shall be deemed or construed to affect the manner in which a religious organization may provide adoption, foster care or social services if such religious organization does not receive state or federal funds for that specific program or purpose.

The bill also provides that no member of the clergy shall be required to solemnize any marriage in violation of his or her right to the free exercise of religion and no church shall be required to participate in solemnizing a marriage in violation of its religious beliefs.

Yesterday's edition of The Edge reports on the amendments adopted Wednesday. Yesterday's Hartford Courant, reporting on the bill, points out that the state legislature rejected broader proposals that would have exempted objecting individuals and businesses from having to provide services in connection with same-sex marriages.

Judge Refuses To Enjoin Installation of New Pastor of Prestigious NY Church

The New York Times reported yesterday that a New York state trial judge effectively denied a motion for a temporary injunction sought by dissidents to prevent the installation of Rev. Dr. Brad R. Braxton as Senior Pastor of the historic Riverside Church on Manhattan's upper West side. Judge Lewis Bart Stone adjourned the case until late May, well after the installation of Rev. Braxton scheduled for Sunday. A group of congregants are concerned about the size of Braxton's compensation package and his more conservative style of religious practice. In the past, Riverside Church has been a center of social activism. The judge urged the parties to reach a settlement of their disputes.

Report Urges Changes To Protect Against Improper Searches of Muslims Returning to US

Earlier this week, Muslim Advocates issued a report titled Unreasonable Intrusions: Investigating the Politics, Faith & Finances of Americans Returning Home. Here is an excerpt from the Executive Summary of the 52-page report:

Law-abiding Muslim, Arab and South Asian Americans returning home after overseas travel have experienced widespread, systematic and profound privacy intrusions by federal agents at the nation’s borders and airports. U.S. Department of Homeland Security ("DHS") Customs & Border Protection ("CBP") agents have questioned individuals about their political beliefs, religious practices, and charities they support. Agents have also sought to review and copy business cards, credit cards, and data on laptops, digital cameras and cell phones. These interrogations and searches are taking place without evidence or even suspicion that the travelers have engaged in wrongdoing.

These experiences and others chronicled in this report suggest that law-abiding Americans are being systematically selected by CBP agents for searches and interrogations on the basis of race, religion, and national origin. Far from serving legitimate aims, such profiling undermines security, wasting scarce government resources and generating mountains of false leads, as well as eroding trust between law enforcement authorities and the public....

Muslim Advocates proposes a series of discrete policy revisions that would restore constitutional protections eroded by the status quo border security apparatus and allow ample authority for the government to conduct legitimate activities to protect our nation’s security. They include steps that both the executive branch and Congress can take to better protect our nation’s border and our rights.

Farhana Khera, Executive Director of Muslim Advocates, wrote about the report Wednesday on the Washington Post's Faith Divide blog.

6th Circuit Hears Oral Arguments In 10 Commandments Case

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments in ACLU v. Grayson County, Kentucky. In the case, a Kentucky federal district court, on Establishment Clause grounds, permanently enjoined a display of the Ten Commandments as part of a Foundations of American Law and Government Display in the Grayson County Courthouse. (See prior posting.) AP reported that the judges questioned counsel more than usual, as the two sides debated whether or not the county had a secular purpose for the display.

Hindu Group in RLUIPA Case Says Temple Size Is A Religious Necessity

AP reported yesterday that the Adhi Parasakthi Charitable, Medical, Educational and Cultural Society has recently filed a federal lawsuit against West Pikeland Township, Pennsylvania, challenging the Township's refusal to permit the group to build a Hindu Temple larger than 5,000 square feet on a 24.5 acre site in an area zoned residential and conservation. The group wants to build a 26,000-square-foot temple and a 9,000-square-foot auxiliary support building on the site in Chester Springs. Neighbors object. Some of them voiced concerns at the Township Supervisors meeting about a "mosque" and possible movement in of Hindus.

According to a report by Westpikeland.org, proceedings at the Zoning Hearing Board hearing last August revealed that while Hindu group has some 200 members, only about 20 live within 50 miles of the proposed Temple site. The group's attorney, Richard Lipow, says the size of the proposed Temple is dictated by religious considerations. Certain gods need to be a distance from others. The group says that the Township's zoning ordinances violate the Religious Land Use and Institutionalized Persons Act as well as the group's free exercise, free expression and assembly rights. [Thanks to Scott Mange for the lead.]

Markup of Hate Crimes Bill Begins, Amid Opposition By Some Christian Groups

Yesterday, the House Judiciary Committee began the mark-up of HR 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009. Among other things, the bill will extend coverage to certain crimes committed because of a person's actual or perceived sexual orientation or gender identity. It will also increase assistance to state and local governments in fighting hate crimes. The Advocate reports that Republican Congressmen opposed to passage of the bill offered a large number of amendments, all of which were defeated. One amendment proposed adding "unborn child" to the definition of those against whom Hate Crimes might be perpetrated. Another amendment proposed adding "pregnant women." Rep. Steve King of Iowa suggested changing the bill's name to the "Local Law Enforcement Thought Crimes Prevention Act of 2009."

Some Christian groups are again this year raising the spectre that the bill, if enacted, would infringe the right of Christian ministers to oppose homosexuality. For example, Jeff King, president of International Christian Concern, called the bill "a backdoor tool from the far left and radical homosexuals to shut down legitimate free speech from Christians and others who oppose their lifestyle." ICC argued that the federal aiding and abetting statute (18 USC 2) could allow prosecution of those "who teach that homosexual behavior is sinful and that Islam is a false religion." A release issued by Americans United this week counters the argument, saying:

The bill penalizes assault and physical violence, not speech. In fact, the legislation makes it clear that free speech is protected. Section 10 states, "Nothing in this Act, or the amendments made by this Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the free speech or free exercise clauses of, the First Amendment to the Constitution."

UPDATE: CQ reports that on Thursday (4/23), the House Judiciary Committee approved the Hate Crimes bill by a vote of 15-12. The Committee defeated more than a dozen proposed Republican amendments to the bill.

"Defamation of Religion" and the Durban Review Conference Final Draft

JTA reports that delegates at the United Nations Durban Review Conference in Geneva this week surprisingly adopted the Conference final document on Tuesday, three days before the end of the conference. This move was apparently designed to prevent further debate and modification of the document, or perhaps to prevent further walkouts by delegates. The New York Times describes the action by Conference delegates a bit differently. It reports that while final adoption of the resolution will occur on Friday, on Tuesday the resolution was adopted by the committee that coordinates the conference so that it is no longer open to debate or amendment.

Particularly after the inflammatory speech on Monday by Iranian President Mahmoud Ahmadinejad, most of the press attention has been focused on the Conference's treatment of the Israeli-Palestinian issue. Here the Conference's final document is seen by the U.S. and some other countries as no improvement over Durban I because it "reaffirmed" the 2001 Durban Declaration. (Philadelpha Evening Bulletin.) Anne Bayefsky in the New York Daily News yesterday expanded on the anti-Israel elements of the Conference.

However, another issue of concern leading up to the conference has been efforts by Islamic states to get language into the final document barring "defamation of religion." That reference was removed in negotiations last month. (See prior posting.) The language remains out of the final document; but reference to "negative stereotyping of religions" remains in. This reference can be used by countries to prevent debate or criticism of religious ideas. (See press release from ARTICLE 19.) However the final document also strongly emphasizes the importance of freedom of expression.

In what appears to be the final version of the Outcome Document that was adopted (March 17 draft from UN Watch), here is the relevant language:

10. Recognizes with deep concern the negative stereotyping of religions and the global rise in the number of incidents of racial or religious intolerance and violence, including Islamophobia, anti-Semitism, Christianophobia and anti-Arabism;
　
11. Reaffirms that any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law, as well as the dissemination of ideas based on racial superiority and hatred and acts of violence and incitement to such acts, and that these prohibitions are consistent with freedom of opinion and expression;....

55. Reaffirms the positive role that the exercise of the right to freedom of opinion and expression, as well as the full respect for the freedom to seek, receive and impart information can play in combating racism, racial discrimination, xenophobia and related intolerance;
　
56. Stresses that the right to freedom of opinion and expression constitutes one of the essential foundations of a democratic, pluralistic society, since it ensures access to a multitude of ideas and views;

Another press release this week from the UK free speech group, ARTICLE 19, decrying the boycotting of the Conference by some countries, describes the Document's language on free expression in more upbeat terms than many other rights groups might be willing to do:

Months of negotiation have resulted in a draft Outcome Document that reaffirms the essential role of freedom of expression and freedom of information while omitting any reference to "defamation of religions", a concept rejected by free speech activists because it protects belief systems against criticisms or jokes and is incompatible with international human rights law. The Document's current language acknowledges the primacy of the individual as rights holder rather than religion.

According to Mr. Moataz El Fegiery, Executive Director of Cairo Institute for Human Rights, "The replacement of 'defamation of religion' with language protecting an individual's freedom of belief represents a significant acknowledgment by the international community that international law does not recognise this concept; and that it should not be used by the United Nations."

Amended Complaint Protests Second Song Given To 3rd Graders In Florida School

Last week, a Florida federal district court issued a preliminary injunction on Establishment Clause grounds barring Webster Elementary School in St. Johns County, Florida from directing students to rehearse or perform the Diamond Rio band's song, "In God We Still Trust." (See prior posting.) On Tuesday, an amended complaint was filed in the case charging that five days after the issuance of the preliminary injunction, the music teacher at Webster began to teach another "sectarian" song, again to third-graders. This one is titled "Chatter With the Angels." According to yesterday's St. Augustine Record, the amended complaint charges that directing students to perform "Chatter" constitutes retaliation against plaintiffs for having brought the suit challenging "In God We Still Trust." The amended complaint seeks a preliminary injunction barring introduction of this song until the court can rule on the merits of plaintiffs' objections.

In an updated report this morning, the St. Augustine Record says that Chatter With the Angels, an African-American spiritual, is in an approved textbook used throughout the state, and the song has been on the state's approved teaching list for over 20 years. School district officials say the song will not be sung again until the court makes a ruling. Here, via YouTube, is a performance of "Chatter With the Angels" by a Bridgeport (CT) Children's Choir.

NY Murder Trial, Pevaded By Religion, Ends with Convictions

The New York Times on Monday reported on the conclusion of a Queens (NY) murder trial that has torn apart the small local community of Bukharian Jews. The two defendants were sentenced to life in prison without parole. One defendant, Dr. Mazoltuv Borukhova was charged with hiring the other defendant, Mikhail Mallayev, to murder her estranged husband, Dr. Daniel Malikov, after a court awarded temporary custody of their daughter to Malikov. The murder took place on a playground in front of the 4 year old daughter. As reflected in a New York Times article last month, the defendants' religion has been a pervasive theme in the background of the trial:

Both Dr. Borukhova and Mr. Mallayev told the police that they would never be involved in anything illegal because of their religious beliefs. Dr. Borukhova's relatives sit every day in the second row of State Supreme Court, murmuring prayers from books printed in Russian and Hebrew. Dr. Malakov’s relatives occasionally hiss at them across the aisle.

Covering their hair in accordance with religious rules for married women, Dr. Borukhova’s sisters wear bouffant wigs that became an issue when prosecutors claimed that an eyewitness saw one sister at the murder scene..... Mr. Mallayev wore a black leather skullcap and matching jacket early in the trial, but switched to a more staid look: a suit and a velvet yarmulke bearing the Star of David. Earlier, he refused on religious grounds to shave his beard to appear in a lineup, finally agreeing to a shave with an electric razor.

The defendants' Sabbath observance became the center of another controversy as the judge attempted to assure that the trial would end and the jury would return a verdict before his previously scheduled vacation was to begin. In order to avoid court appearances on the Sabbath, defendants' counsel ended up having only overnight to prepare his summation, while the prosecution ended up with the weekend to prepare theirs.

Just before sentencing, Mallayev told the judge he did not kill anyone, saying: "I live by the Ten Commandments." During sentencing, Justice Robert J. Hanophy quoted both the New Testament and Confucius.

Suit Challenges Use of Church For High School Graduation

Americans United yesterday announced that it has filed a lawsuit in a Wisconsin federal court seeking to enjoin the Elmbrook (WI) School District from holding graduation ceremonies for its two high schools in Elmbrook Church (or any other religious venue) unless all religious symbols visible to attendees, both inside and outside the church, are covered or removed. The complaint in Does v. Elmbrook Joint Common School District No. 21, (ED WI, filed 4/22/2009) (full text), alleges that the district has held high school graduation in the sanctuary of Elmbrook Church for nearly a decade. A 15 to 20 foot high cross towers above the graduates during the ceremony. (Photo.) The Church has made a policy decision that it will not cover the cross during the ceremonies, wishing to rent out its facilities for use without compromising the Church's identity. The Memorandum In Support of Plaintiffs' Motion for Preliminary Injunction (full text) argues that the use of the Church for graduation ceremonies under a large cross is a manifest violation of the Establishment Clause.

German Parents Challenge Sex Education Module in European Human Rights Court

Earlier this week in Germany, the parents of an 11 year old girl filed an Application (full text) with the European Court of Human Rights challenging a fine of 120 Euros imposed on them by a German court for their refusal to send their daughter to school for four days during which a module on sexual abuse prevention was being taught. The classes focused on a stage play titled "My Body Is Mine". The parents, Eduard and Elisabeth Elscheit allege that the play and classes infringed their ability to instill Christian ethics in their daughter Franziska. They argue that the classes encourage children to become sexually active by teaching them to follow their inner feelings on sexuality. The parents contend that Protocol 1, Art. 2 of the European Convention for the Protection of Human Rights protects their right to educate their children according to their own religious and philosophical beliefs. Alliance Defense Fund, which is representing the parents, issued a release on Tuesday announcing the appeal.

Miss California's Comments On Gay Marriage Create Controversy

Last Sunday night, Miss North Carolina, Kristen Dalton, was crowned Miss USA. (ABC News). However much of the attention since then has been focuses on runner-up, Miss California-- Carrie Prejean. The consensus seems to be that Prejean lost the top spot because of an answer about gay marriage that she gave in response to a question by, Perez Hilton, one of the judges. Prejean said: "I think it's great Americans are able to choose one or the other.... [I]n my country, in my family I think that I believe that a marriage should be between a man and a woman. No offense to anybody there, but that's how I was raised and that's how I think it should be, between a man and a woman." (ABC News).

The fallout continues. Fox News published an article Tuesday exploring whether Prejean had a cause of action for religious discrimination. And others injected the incident into the battle in Congress over enactment of the Local Law Enforcement Hate Crimes Prevention Act of 2009 (HR 1913) which has again been introduced into Congress. As reported by the Washington Post, an e-mail sent on Monday to supporters by Gary Bauer of American Values said that the incident: "should be a wake-up call to men and women of faith and everyone who cherishes freedom of speech and religious liberty. The backlash to (Miss California's) commonsense comments demonstrates the naked intolerance of the militant homosexual movement . . . And if it gets its way in Congress, comments like (hers) may someday be considered a 'hate crime.'" David Waters, in a Washington Post blog, also reflects on the entire series of events.

9th Circuit Says Arizona Scholarship Tax Credits Likely Violate Establishment Clause

In Winn v. Arizona Christian School Tuition Organization, (9th Cir., April 21, 2009), the U.S. 9th Circuit Court of Appeals reversed an Arizona federal district court's dismissal of a lawsuit challenging Arizona's scholarship tax credit program. The Court of Appeals held that plaintiffs have taxpayer standing. It went on to conclude that plaintiffs' allegations state a claim that Arizona's program as applied violates the Establishment Clause. Arizona grants a tax credit of up to $500 to individuals who contribute funds to nonprofit "school tuition organizations." STO's in turn award private school scholarships to children. In practice, 85% of contributed funds are available only for scholarships to religious schools.

The court wrote at length distinguishing Arizona's plan from the school voucher program upheld by the U.S. Supreme Court in the Zelman case. Here, while taxpayers have a choice of which STO's they will support, parents' choices are constrained by taxpayers' decisions of which STO's to fund. The state has delegated discretion to taxpayers that is used to create incentives for parents to send their children to religious schools. (See prior related posting.) Phoenix's East Valley Tribune reports on the decision.

Two Days of Negotiations Start Over Reform of FLDS Land Ownership

According to AP, today in Salt Lake City, Utah, two days of meetings begin between all the parties to try to reach an agreement on how to finally deal with FLDS Church property owned by the United Effort Plan Trust. In 2005, Utah appointed a special trustee to modify the trust and provide for secular management of the property owned by the polygamous FLDS sect. The trustee, Bruce Wisan, has been moving toward eventually conveying the land to FLDS members (and former members) in private ownership. FLDS members, however, say that their religious beliefs call for sharing of the land by those who adhere to Church teachings. The Utah Attorney General's office has drafted an initial proposal that it has shown to Wisan and to the Colorado attorney general's office, but not to the FLDS negotiators. (See prior related posting.)

UPDATE: The Salt Lake Tribune reported on Thursday that there are some signs of compromise in the negotiations. The major issues are how to allow FLDS members and those who left or never belonged to FLDS to live together. There are also questions of how to manage common areas such as a park, cemetery and health clinic, and how to pay the UEP trust's debts. One proposal under discussion is a 5-person board made up of 2 FLDS members, 2 non-members and a neutral to deal with housing claims.

Turkmenistan Court Imposes 2 Years Suspended On Conscientious Objector

Forum 18 reported Monday that in Turkmenistan, a two-year suspended sentence has been imposed on a conscientious objector who refused compulsory military service. Zafar Abdullaev, a Jehovah's Witness, was charged with violating Article 219, Part 1 of the Criminal Code. The UN Special Rapporteur on Freedom of Religion or Belief has called on Turkmenistan to create an alternative civilian service option for conscientious objectors. Shirin Akhmedova, Director Turkmenistan's National Institute for Democracy and Human Rights, however, says that conscientious objectors can already serve in medical or construction units within the army. Some however, do not find this option religiously acceptable.

Pastor Sues Broadcaster For Stopping His Religious Activities At CNN Building

In Atlanta (GA), pastor Dick Christensen has filed suit against CNN, Turner Broadcasting and a security guard for false imprisonment, assault and battery, and violating his free speech and free exercise of religion rights. According to WSBTV News yesterday, in December 2008 Christensen and others were proselytizing, carrying banners and handing out Christian literature in front of the CNN headquarters building. A CNN security guard told Christensen he was on CNN property and should move. Christensen insisted he was on a public sidewalk. CNN guards placed Christensen on the ground, handcuffed him and held him in CNN offices for two hours or so before releasing him. CNN says it does not agree with Christensen's version of events. Christensen says that CNN is "hostile to the Christian message."

Judge Orders FBI To Turn Documents On Surveillance of Muslims Over to Court

The ACLU of Southern California yesterday won a preliminary victory in a Freedom of Information Act lawsuit it filed in 2007 on behalf of 11 Muslim American leaders, mosques and local organizations who are seeking information on FBI monitoring of themselves and other groups. (See prior related posting.) USA Today and an ACLU press release report on the order issued by a California federal district judge requiring the FBI to turn some 100 documents over to the court so it can decide whether they should be publicly released. The court also ordered the FBI to conduct a search in its offices nationwide for any records of electronic surveillance of the Council on American-Islamic Relations of Greater Los Angeles and its executive director. The ACLU charges that the FBI is targeting Muslims in southern California for surveillance based on their religion.

Christian Leaders In Australian Town Oppose Construction of Muslim School

In Camden, Australia, a town around 40 miles southwest of Sydney, a group of Christian leaders have joined together to oppose approval of plans for a Muslim school to be built by the Quranic Society. Last May, Camden Council voted unanimously to reject the school's plans. The Quranic Society has now reduced the size of its proposed school and has taken its case to the Land and Environment Court. Today's Sydney Morning Herald reports that a letter from the Christian group was read in court yesterday. It said in part: "Our concern is the Quranic Society inevitably advocates a political ideological position that is incompatible with the Australian way of life. This includes promoting Quranic law as being superior to national laws and regarding followers of any rival religion as inevitably at enmity with it."

Pakistani Court Overturns Two Blasphemy Convicitions

Compass Direct News reported yesterday that two elderly Christian men convicted of blasphemy in Pakistan have had their convictions overturned by a high court in Lahore. Last Thursday the court reversed the 10-year sentences of 67-year old James Masih and 72-year old Buta Masih who had been accused of burning pages from the Quran. They were also charged with terrorism- related offenses of creating fear and panic. The men say that the charges were fabricated as part of a dispute over land that a Muslim neighbor wanted James Masih to sell. Police arrested the two men in October 2006 as a group of 500 Muslims who had heard rumors of the Quran burning tried to kill the men. They men have already served over two years of their terms.

White House Plans For National Day of Prayer Are Uncertain

Federal law (36 USC 119) designates the first Thursday in May as National Day of Prayer, though a pending federal lawsuit is challenging the constitutionality of that statute. (See prior posting.) A Religion News Service article published yesterday reports that there is a good deal of uncertainty over whether the White House will host an official observance of the event this year. The Bush White House during its eight years had marked the day with a ceremony in the East Room attended by a range of religious leaders. The National Day of Prayer Task Force headed by Shirley Dobson is planning its own event, as in past years. However this year it is scheduling its ceremony on Capitol Hill in the morning-- the time when the White House event, with Dobson and others in attendance, had traditionally been held. Brian Toon, vice chair of the Task Force, says this year the White House has not been in touch with them about its plans. Joshua DuBois, executive director of the White House Office of Faith-based and Neighborhood Partnerships, said on Sunday that it is "too early to talk about the planning" for the National Day of Prayer.

UPDATE: On April 21, the Interfaith Alliance and Jews on First sent a letter to President Obama (full text) requesting that he issue a Proclamation calling for a National Day of Prayer and Reflection that is inclusive of all religious traditions as well as of those professing no religion. The letter says that "several years ago, the National Day of Prayer was taken over by a group of religious exclusivists led by Shirley Dobson of Focus on the Family."

Historian Discusses Early School Bible Reading Case

On April 1, the Ohio Supreme Court hosted an hour-long Forum on "The Cincinnati Bible War Case of 1873," with a presentation by Notre Dame historian Linda Przybyszewski. A video of the full presentation is online. The Court's press release on the Forum summarizes the history:

Amid the increasing diversity and pluralism of the post-Civil War era, the Cincinnati public schools were faced with a growing Catholic population unhappy that their children were instructed with the protestant version of the Bible. The school board’s solution to remove all bibles from the classroom erupted into a raging national controversy over the relationship between religion and government. In 1873, the Ohio Supreme Court put an end to the Cincinnati Bible War, upholding the board’s decision to end Bible reading in its schools.

The Ohio Supreme Court decision at the center of this discussion is Board of Education v. Minor, 23 Ohio St. 211 (OH Sup. Ct., 1873) [LEXIS link to full opinion]. The opinion is full of surprisingly 21st-century sounding defenses of church-state separation and protection of minority religions. The following is an example, but a full reading of the opinion is well worth the time:

Counsel say that to withdraw all religious instruction from the schools would be to put them under the control of "infidel sects." This is by no means so. To teach the doctrines of infidelity, and thereby teach that Christianity is false, is one thing; and to give no instructions on the subject is quite another thing. The only fair and impartial method, where serious objection is made, is to let each sect give its own instructions, elsewhere than in the state schools, where of necessity all are to meet; and to put disputed doctrines of religion among other subjects of instruction, for there are many others, which can more conveniently, satisfactorily, and safely be taught elsewhere.

Notre Dame Alums Call For Contribution Boycott Over Obama Invitation

A group of Notre Dame alumni, protesting University's invitation to President Barack Obama to speak at graduation and receive an honorary degree, are now calling for Father John Jenkins to be replaced as president of the University. Zenit reports that a "Replace Jenkins" website, objecting to Obama's "well known commitment to abortion in the broadest possible context" says that "Father Jenkins' decision to honor President Obama directly violates the 2004 US Conference of Catholic Bishops’ directive on Catholics in Political Life and is offensive to all Catholics." The website call on alums to sign a petition pledging to withhold contributions until Jenkins is replaced. The website says that supporters can instead contribute directly to pro-life organizations at the university, and that these amounts will be credited by Notre Dame to the alum's eligibility for the football lottery. (See prior related posting.)

Court Denies Tax Exemption For Property Leased To Summer Camp

A New York trial court has denied an exemption for 2006-08 property taxes for 130 acres of land in Pomona, New York owned by Congregation Rabbinical College of Tartikov, according to a report last week by the Lower Hudson Journal News. The court ruled that the Rabbinical College's profit from leasing the land to a summer camp makes the undeveloped property unconnected to the Rabbinical College's other activities. The Village of Pomona has already granted an exemption for 2009 taxes, but will consider revoking it for future years. A discrimination suit against Pomona is pending in federal court over the Villae of Pomona's refusal to permit the Rabbinical College to build facilities on 30 acres of its land. (See prior posting.)

UPDATE: The text of the court's decision in Congregation Rabbinical Coll. of Tartikov, Inc. v Town of Ramapo, (NY Sup. Ct., April 15, 2009), is now available online.

Creationist Institute Sues Texas Higher Ed Board Over Denial of Certification

The Institute for Creation Research has filed suit in a Texas federal court against the Texas Higher Education Coordinating Board charging that the state agency violated its civil rights by denying it a certificate of authority to offer a masters degree in science education. The Institute says it is "the only graduate school which specializes in creationism-informed science education." It argues that without its program: "The monopolistic realities of the science education market in Texas (and in America generally) would limit creationist learners to science education opportunities from evolutionist graduate schools." Today's Dallas Morning News reports that the Institute had previously been approved by California authorities to offer a degree program, but now needs Texas approval because it moved its offices from San Diego to Dallas in 2006. (See prior related posting.)

UPDATE: Here are links to the full complaint and related documents, thanks to a commenter.

Russian Orthodox Church Wants UN To Reocognize Problem of "Christianophobia"

Interfax reports today that the Russian Orthodox Church has asked this week's Durban Review Conference (World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance) being held in Geneva to add the notion of "Christianophobia" to the world's lexicon. Archpriest Georgy Ryabykh, deputy head of the Moscow Patriarchate Department for External Church Relations, says UN Secretary General Ban Ki-moon mentioned anti-Semitism and Islamophobia in his opening remarks at the Conference, but made no mention of insults to Christians and violation of their rights. (See prior related posting.)

NY Court Says Muslim Marriage Is Valid, Even Though Not Recognized In NJ

New York law recognizes a marriage celebrated in a religious ceremony as valid even if the parties do not obtain the required marriage license. (NY Dom. Rel. Law § 25). New Jersey, on the other hand, does not recognize a religious marriage as valid if the parties failed to obtain a marriage license. (N.J. Stat. § 37:1-10). In Matter of Farraj, (NY Sup. Ct., April 14, 2009), a New York trial court held that New York law would be applied to render a Muslim marriage performed in New Jersey valid, even though the parties did not obtain a marriage license. The ceremony was held in New Jersey only because Islamic law requires that the marriage take place at the home of the bride's eldest male relative-- here her brother. The groom and the officiating imam both traveled from New York for the ceremony. The couple went back to New York for the wedding reception and lived in New York from that time until the husband's death over four years later. The court relied on Restatement (Second) of Conflict of Laws Section 283 to hold that the law of the state with the most significant relationship to the parties and the marriage should govern to validate the marriage.

The court went on to rule that since the marriage was valid, petitioner, Rabaa M. Hanash, has standing as a surviving spouse to petition the court for an accounting of her deceased husband's estate. One of the deceased husband's adult children from a former marriage had contested Hanash's right to demand an accounting, arguing that she was never lawfully married to Daoud Farraj .

Cert. Denied In Challenge To Jury's Use of Bible In Deliberations

The U.S. Supreme court today denied certiorari in Oliver v. Quarterman, Docket No. 08-833). (Order List.) In the case, the U.S. 5th Circuit Court of Appeals held that a jury's use of the Bible during the sentencing phase in a murder case was improper, but was not shown to have influenced the jury's decision. (See prior posting.)

President's Faith Based Council Creates 6 Task Forces

The Washington Post today provides more information on what the President's Advisory Council on Faith-Based and Neighborhood Partnerships is doing. It has set up six task forces to advise the President. The task forces are on (1) reform of the faith-based office, (2) fatherhood, (3) U.S. economic recovery, (4) interreligious dialogue, (5) global poverty, and (6) the environment and climate change. One topic, however, has become too controversial for the task forces to handle. The question of whether faith-based groups that take government funds can use religious criteria in hiring has been removed from the task force on reform of the faith-based office and given over to the White House legal counsel and the Justice Department.