Claims By Chuch Founder Against City Employees Dismissed

In Kovalev v. City of Philadelphia, (ED PA, April 29, 2009), a Pennsylvania federal district court dismissed a series of constitutional claims brought by Sergei Kovalev against the city and several city employees challenging inspection attempts and the refusal of a building permit for a small additional structure on property that contained his home as well as operations of his "International Church of Eternal Revival ." In the lawsuit, filed pro se, Kovalev claimed the inspection was instigated by a state senator whose office was nearby and that he is a victim of discrimination because he is a foreign born U.S. citizen from Eastern Europe. He says any construction was "done in an act of worship to God." The court found a lack of evidence to support his 1st, 4th and 14th Amendment claims and held that individual defendants had qualified immunity.

Cert. Denied In Challenge To Marijuana Laws

The U.S. Supreme Court today denied certiorari in Olsen v. Holder, (Docket No. 08-777) (Order List.) In the case (captioned below as Olsen v. Mukasey) the U.S. 8th Circuit Court of Appeals held that plaintiff's attempt to enjoin enforcement against him of the federal and Iowa's controlled substances acts should be dismissed. Plaintiff, a member of the Ethiopian Zion Coptic Church, uses marijuana for sacramental purposes. (See prior posting.) Meanwhile, in a different approach, plaintiff has attempted in both state and federal forums to require marijuana to be removed as a Schedule I controlled substance now that a number of states recognize its legitimacy for medical use. The attempts have met varying degrees of success. (See prior posting.)

Controversy Continues Over UNLV's Proposed Policy On Bias Incidents

At the University of Nevada Las Vegas, faculty concern continues over the University's proposed Policy on Bias Incidents and Hate Crimes. The draft defines a "bias incidents" as:

verbal, written, or physical acts of intimidation, coercion, interference, frivolous claims, discrimination, and sexual or other harassment motivated, in whole or in part, by bias based on actual or perceived race, ethnicity, color, religion, creed, sex (including gender identity or expression, or a pregnancy related condition), sexual orientation, national origin, military status or military obligations, disability (including veterans with service-connected disabilities), age, marital status, physical appearance, political affiliation, or on the basis of exercise of rights secured by the First Amendment of the United States Constitution.... Bias incidents do not include statements made on controversial issues that serve to promote intellectual inquiry into those issues. While such statements and related discussion can cause feelings of discomfort, a "reasonable person" can and must differentiate these statements from bias incidents.

The draft encourages reporting of bias incidents to UNLV police. After the ACLU of Nevada criticized the draft as an unconstitutional infringement on free speech, Nevada's chancellor of public higher education called for the policy to be rewritten. (Las Vegas Sun, 4/27). But now faculty are concerned that UNLV President David Ashley chose Christine Clark, the vice president of diversity and inclusion, to head a task force to review the draft. She helped develop the initial draft, and critics say she ignored their concerns at that time. (Las Vegas Sun, 5/4). The policy was drafted in response to a call by the state Board of Regents last year for all state schools to develop policies on bias incidents. (Las Vegas Sun, 4/25.)

Pakistan Islamists Reject Sharia Court Set Up By Government In Peace Deal

Last month, the government of Pakistan entered an agreement with Taliban insurgents to set up Islamic courts in the Malakand Division of the North West Frontier Province in order to end fighting there. (See prior posting.) Voice of America reports that on Saturday, Pakistani authorities implemented the agreement by setting up an Islamic appellate court and appointing two senior judges to it. However Sufi Mohammad who mediated the agreement rejected the announcement saying that the government is not competent to appoint Islamic judges without first consulting him as senior cleric. He also said the government's ongoing offensive against the Taliban was to have been halted before the court was set up. Taliban say they will not lay down their arms until those conditions are met. The government says that private individuals cannot be involved in process of appointing judges.

Pope Travels To Jordan, Israel, West Bank At End of This Week

Pope Benedict XVI will be visiting the Middle East beginning the end of this week. He will be in Jordan from May 8 to 11. (Tidings Online.) Then he moves on to visit Israel and the West Bank from May 11 to 15, . The Israel Ministry of Tourism has set up a website with information about this portion of the Pontiff's trip. The website includes Benedict's itinerary and presumably will be updated with reports during his trip. The Forward last week previewed the visit in an article titled Pope's Visit to Israel Fraught With Potential Minefields. And Politics Daily today has a lengthy review of the religious, political and personal issues that confront the Pope on the trip. Meanwhile Zenit yesterday reported that the Pope will deliver 29 discourses and homilies during his week in the Middle East, and will meet with both government officials and representatives of Christianity, Islam and Judaism.

Recent Articles and Books of Interest

From SSRN:

• Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning over Time, (Duke Law Journal, Vol. 59, January 2010).


• Caroline Mala Corbin, The First Amendment Right Against Compelled Listening, (Boston University Law Review, Vol. 89, 2009).

From SmartCILP and elsewhere:

• Mohamed R. Hassanien, International Law Fights Terrorism in the Muslim World: A Middle Eastern Perspective, 36 Denver Journal of International Law & Policy 221-253 (2008).


• Frank Ravitch, Playing the Proof Game: Intelligent Design and the Law, 113 Penn State Law Review 841-897 (2009).


• Mark Strasser, The Protection and Alienation of Religious Minorities: On the Evolution of the Endorsement Test, 2008 Michigan State Law Review 667-724.


• Symposium--First Amendment Rights in America's Public Schools: From the Schoolhouse Gate to the Courthouse Steps. Welcoming remarks by Rex R. Perschbacher and Alan Brownstein; articles by Vikram David Amer, Kenneth Starr, R. George Wright, Alan Brownstein, Erwin Chemerinsky, Steven K. Green, Joan W. Howarth, Melissa Rogers and Steven D. Smith. 42 UC Davis Law Review 631-1057 (2009).


• Symposium: Islam, Democracy, and Nation Building. Articles by Joseph N. Kickasola, John H. Johns, Stephen Schwartz, Mehrangiz Kar, Thomas Najjar and Jennifer Jefferis; note by Eva M. Robinson. 6 Regent Journal of International Law 271-499 (2008).


• Brian Leiter, Why Tolerate Religion?, 25 Constitutional Commentary 1-27 (2008).

New Books:

• John Witte, The Sins of the Fathers: The Law and Theology of Illegitimacy Reconsidered, (Cambridge Univ. Press, April 2009), reviewed by the Center for the Study of Law and Religion.


• T. Jeremy Gunn, Spiritual Weapons: The Cold War and the Forging of an American National Religion, (Praeger Publishers, Dec. 2008), reviewed by the Center for the Study of Law and Religion.

Q&A on Hate Crimes Bill Seeks To Reassure Religious Leaders

Third Way has recently issued a memo titled Questions and Answers about the Hate Crimes Bill for People of Faith. It attempts to alleviate concerns raised particularly by conservative Christian groups about religious freedom and the Hate Crimes Prevention Act that has recently passed the House. (See prior posting). The memo concludes that pastors could not be prosecuted under the bill for preaching that homosexuality is an abomination, or saying that gay people will go to hell. It points to specific language in the bill, language of the House Report and the special role of the 1st Amendment. The memo also points out that the bill expands protection against religiously motivated hate crimes:

Current federal law only protects against hate crimes based on
religion if the person was targeted because they were engaged in a federally protected activity like voting or going to school. The legislation under consideration by Congress would remove that limitation.

[Thanks to Michael Lieberman for the lead.]

5th Circuit: Prison's Rules On Buddhist Services May Violate RLUIPA

In Newby v. Quarterman, (5th Cir., April 30, 2009), the U.S. 5th Circuit Court of Appeals upheld a Buddhist inmate's challenge to Texas prison rules that require religious services in his prison unit to be conducted by either a chaplain or an approved religious volunteer. There were no approved religious volunteers for Buddhist ceremonies, and the regular chaplain refused to conduct Buddhist ceremonies because he is unfamiliar with Buddhist religious practices and was occupied by other obligations. Ruling on plaintiff's claim under RLUIPA, the court held that there is a reasonable basis for a fact finder to conclude that the outside-volunteer policy creates a substantial burden on plaintiff's free exercise and that Texas has not furthered its interest in prison safety and security through the least restrictive means. The court also reversed the district court's dismissal of plaintiff's free exercise and equal protection challenges to the prison's outside-volunteer policy.

1st Amendment Challenge To Termination of Parental Rights Dismissed

In Haines v. New Hampshire Department of Health and Human Services, 2009 U.S. Dist. LEXIS 36331 (D NH, April 28, 2009), a New Hampshire federal magistrate judge held that the Rooker-Feldman doctrine deprives the federal court of jurisdiction to review a state court's termination of a mother's parental rights and rulings on visitation. She raised 1st Amendment objections to the state's order, saying that the state court's rulings were based on her religious objection to undergoing a mental health evaluation that was based on principles of secular psychology or psychiatry.

Zoning Challenge Dismissed On Ripeness Grounds

In Miles Christi Religious Order v. Northville Township, 2009 U.S. Dist. LEXIS 36228 (ED MI, April 30, 2009), a Michigan federal district court dismissed as unripe a challenge to a Township's zoning determination classifying as a small church the house where Miles Christi priests and monks reside and conduct classes and services. Miles Christi, a Catholic religious order, challenged the determination as a violation of RLUIPA, the 1st and 14th Amendments and various provisions of the Michigan constitution. The court found that plaintiffs had not appealed to the zoning board of appeals the township's determination that a change to a more intensive use of the property had occurred. Nor did they submit a site plan or seek a variance or other administrative relief from the zoning board of appeals.

New Approach Attempted In Challenge To Drug Laws By Religious Users

In Olsen v. Holder, (SD IA, April 27, 2009), a priest in the Ethiopian Zion Coptic Church-- which employs marijuana in its religious rituals-- attempted a new approach in challenging federal laws banning marijuana use. Instead of asserting free exercise claims, he sought a declaratory judgment and injunction against continuing marijuana as a Schedule I drug under federal law. (Background on Controlled Substances Act.) He alleged that marijuana is only appropriately listed on Schedule I if it has "no currently accepted medical use in the United States," and that now 12 states have enacted laws finding that it does have medical uses. The court, however, dismissed the case on jurisdictional grounds, holding that the appropriate route to raise the issue is to appeal to the appropriate Court of Appeals a refusal by the DEA to reschedule marijuana. An appeal by plaintiff of a refusal by the DEA is already proceeding on a parallel track. (See prior related posting.)

UPDATE: In McMahon v. Iowa Board of Pharmacy, (IA Dist. Ct., April 21, 2009), an Iowa state court reviewed a state pharmacy board's action on rescheduling of marijuana under state law and remanded the case to the Board, holding that it must recommend rescheduling to the legislature if it finds that marijuana has an accepted medical use in the U.S. and is safe for use under medical supervision. Plaintiff in the federal case discussed above was an intervenor in the state case. The pleadings and briefs in the case are available here. Extensive background documents, pleadings and briefs in the attempt to obtain federal reclassification are available here. (Also the link in the original posting has been changed to a version of the opinion that is available without a LEXIS subscription.)

Recent Prisoner Free Exercise Cases

In Johnson v. Killian, 2009 U.S. Dist. LEXIS 34670 (SD NY, April 21, 2009), a New York federal district court rejected for failure to exhaust administrative remedies plaintiffs' objections to Muslim inmates being limited to performing congregational prayer once a day, five times per week, and limits on their ability to pray individually in their cells.

A series of similar screening opinions have recently been released by a California federal magistrate judge. In each, she dismisses the complaint, with leave to amend, holding (among other things) that plaintiff has failed to adequately allege that prison restrictions being challenged infringe on his sincerely held religious beliefs. Each of the following is from Magistrate Judge Sandra M. Snyder in the Central District of California: Chavez v. Ahlin, 2009 U.S. Dist. LEXIS 35063 (April 8, 2009); Languein v. Ahlin, 2009 U.S. Dist. LEXIS 35060 (April 8, 2009); Sanchez v. Ahlin, 2009 U.S. Dist. LEXIS 35062 (April 8, 2009); Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 35050 (April 7, 2009); Sumahit v. Ahlin, 2009 U.S. Dist. LEXIS 35205 (April 9, 2009); Angulo v. Ahlin, 2009 U.S. Dist. LEXIS 35452 (April 9, 2009).

In Ellington v. Director of Corrections, 2009 U.S. Dist. LEXIS 34895 (ED CA, March 30, 2009), a California federal magistrate judge dismissed, on grounds of failure to comply with the procedural rule on joinder, plaintiff's claim that he was denied a kosher diet in compliance with his faith, which consists of House of Yahweh, Kaballah, and Hebrew/Islam. Plaintiff was given leave to refile amended complaints.

In Cowart v. Gonzales, 2009 U.S. Dist. LEXIS 34991 (MD GA, Feb. 24, 2009), a Georgia federal magistrate judge recommended granting summary judgment to defendant in a lawsuit claiming that authorities seized religious material from plaintiff's cell and subsequently had the materials destroyed. The court found that plaintiff had failed to exhaust his administrative remedies as to this claim. Another claim alleging withholding of religious mail for one day was dismissed as not interfering with plaintiff's free exercise of religion.

UPI reported last week that a Nebraska judge refused a state prisoner's request to change his name for religious reasons to "Sinner Lawrence Bilskirnir." Plaintiff is an adherent of the Norse religion.

Utah High Court Finds Church's Theft of Funds Violates Anti-Racketeering Statute

In Hill v. Estate of Owen A. Allred, (UT Sup. Ct., May 1, 2009), the Utah Supreme Court held that an elaborate scheme by a religious group and some of its followers to steal $1.54 million from a woman who thought the funds were being used to purchase a ranch violates Utah's Pattern of Unlawful Activity Act. The statute, Utah Code Ann. § 76-10-1605, allows an award of double damages and attorneys' fees to plaintiff, Virginia Hill, who was injured by a pattern of unlawful activity. Drawing on federal precedent, the court rejected defendants' claim that conversion of Hill's money involved only a single episode of criminal activity.

The court also reversed the trial court's holding that Hill could not be awarded punitive damages because of "unclean hands." She had failed to produce tax returns showing she had paid taxes on the funds converted by defendants. Since the damages she was awarded were not based on doctrines of equity, the court concluded that "the hygiene of her hands was never at issue." Friday's Salt Lake Tribune reports on the decision.

Canadian Court Orders More Hearings On Whether Witness Can Wear Niqab

Toronto's Globe and Mail and the National Post report on a decision handed down last Thursday by Ontario's Superior Court of Justice on whether a Muslim woman should be allowed to testify in court with her face fully covered by a niqab. The Toronto-area woman wants to testify with her face veiled at the trial of two men charged with sexually assaulting her when she was a child. A Provincial Court judge refused her request, finding that she was motivated more by comfort than by religious belief. The Superior Court reversed the decision, instructing the Provincial Court to hold two hearings-- one on whether the woman's beliefs are sincere, and a second on whether the evidence rules permit introduction of testimony from a veiled witness.

Australian Court Rejects Muslim Man's Claim of Invalidity of Marriage

The Family Court of Australia has handed down an interesting decision in Wold & Kleppir, ([2009] FamCA 178, Feb. 6, 2009), a case in which a husband defended against his wife's claim for a property settlement by asserting that the couple were never validly married. The court rejected husband's claim that he believed the ceremony performed by an Imam was merely one to convert to Islam the woman with whom he was living and with whom he had fathered two children. The court concluded that the husband "well knew it was a ceremony of marriage."

The court also rejected a a second argument made by husband. He claimed that the marriage is invalid because it is potentially polygamous, since any Muslim man in Australia can take up to 4 wives. The court accepted the argument by wife's counsel that this would lead to the absurd result of every Muslim marriage in Australia being invalid. Today's Australian reports on the decision.

Teacher's Criticism of Creationism Found Violative of Establishment Clause

In C.F. v. Capistrano Unified School District, (CD CA, May 1, 2009), a high school student and his parents brought suit against high school history teacher James Corbett alleging that Corbett violated the Establishment Clause by making repeated comments in class hostile to religion in general and Christianity in particular. The court found that many of the challenged statements did not mention religion, but merely took positions on issues that particular religious groups find offensive. Of several comments specifically mentioning religion, the court found only one of them violative of the Establishment Clause-- criticism of fellow teacher John Peloza who advocated creationism. Corbett said, in part: "I will not leave John Peloza alone to propagandize kids with this religious, superstitious nonsense." The court concluded there was no legitimate secular purpose in Corbett's characterization of Creationism as "superstitious nonsense," and that the characterization sent a message of disapproval of religion.

The court dismissed claims against the school district, and left for later adjudication the question of the remedy that would be granted against Corbett. Yesterday's Orange County Register and OC Weekly report on the decision.

Obama Will Sign Proclamation, But Not Host Ceremony, On National Day of Prayer

At yesterday's White House Press Briefing (full text), Press Secretary Robert Gibbs announced that on Thursday, May 7, the President will sign a Proclamation recognizing the day as National Day of Prayer. The announcement follows extensive speculation and uncertainty about the President's plans. (See prior posting.) Following up, CBN News reports that the White House will not hold any additional special ceremony marking the day. In taking this route, President Obama reverts to the practice of Presidents Reagan and George H.W. Bush, and moves away from the elaborate White House commemoration held each year during the George W. Bush administration.

The non-governmental National Day of Prayer Task Force (chaired by Shirley Dobson) has extensive events planned for the day, including a program on Capitol Hill from 9:00 a.m. to noon that will be webcast and broadcast on satellite TV channels.

Preliminary Injunction Permits School Posters Advertising See You At The Pole

In Gold v. Wilson County School Board of Education, (MD TN, May 1, 2009), a Tennessee federal district court judge issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior related posting.) In a previous lawsuit, a court found that Lakeview administrators and some of its teachers had violated the Establishment Clause by their involvement with the "Praying Parents" group at the school. (See prior posting.) Now, however, the court essentially concluded that school officials had over-reacted to that earlier decision.

Finding that the school had created a limited public forum in the school's lobby and hallway for community, educational, charitable, recreational, and similar groups to advertise events of interest to students, the court concluded:

Requiring the Plaintiffs to cover all religious speech on the posters under the guise of a reasonable time, place and manner restriction reflects a misunderstanding of law, with the result that the Defendants stifled religious speech, while the restrictions imposed to stifle the speech were neither reasonable nor viewpoint neutral....

The posters invite students and parents to attend the event advertised. By its name, it has a religious connotation, but no one is forced to attend or to engage in a religious exercise; no one is made to read the Bible or pray, and no one is bound to sit in attendance while other students or parents pray. No one is required to accept a religious tract or flyer advertising a religious event, pay attention to a poster, or listen to a religious message.... Mere receipt of an invitation to a religious activity does not rise to the level of support for, or participation in, religion or its exercise to create an Establishment Clause problem.

Today's Tennessean reports on the decision, as does a release from Alliance Defense Fund.

EEOC Gets Settlement In Suit Against Hospital That Refused Leave For Hajj

The EEOC announced this week that a Tennessee federal judge on Monday issued a two-year consent decree settling a religious discrimination lawsuit that the agency had filed against Nashville's Southern Hills Medical Center. The suit alleged that the hospital had refused to permit a Muslim employee to use earned vacation time for an extended leave to make his Pilgrimage to Mecca. It told employee Wali Telwar that instead he would have to resign his position and reapply. (See prior posting.) Under the settlement, Southern Hills will pay $70,000 in damages. The consent decree also enjoins the hospital from refusing to accommodate employees' sincerely held religious beliefs or retaliating against any employee for requesting a religious accommodation. Finally the decree imposes certain record-keeping, posting and reporting requirements in connection with religious accommodations.

Souter Announces Retirement From Supreme Court; Here Are His Religion Decisions

U.S. Supreme Court Associate Justice David Souter sent a letter to President Obama today informing him that he plans to retire at the end of the Court term this year. President Obama delivered a statement (full text) in the White House briefing room praising Souter's service on the court. The Washington Post reports on developments.

Here is a list (with links) of the majority, concurring and dissenting opinions on church-state, religious freedom and religious discrimination issues that Justice Souter has written during his 19 years on the Court.

Majority opinions:

• McCreary County v. ACLU, 545 U.S. 844 (2005).
• Edelman v. Lynchburg College, 535 U.S. 106 (2002).
• Board of Education of Kiryas Joel v. Grumet, 114 S. Ct. 2481 (1994).

Concurrences:

• Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009).
• Capitol Square Review & Advisory Board v. Pinette, 515 U.S. 753 (1995).
• Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993).
• International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992).
• Lee v. Weisman, 505 U.S. 577 (1992).

Dissents:

• Hein v. Freedom From Religion Foundation, 551 U.S. 587 (2007).
• Van Orden v. Perry, 545 U.S. 677 (2005).
• Zelman v. Simmons-Harris, 536 U.S. 639 (2002).
• Good News Club v. Milford Central School, 533 U.S. 98 (2001).
• Mitchell v. Helms, 530 U.S. 793 (2000).
• Agostini v. Felton, 521 U.S. 203 (1997).
• Rosenberger v. Rector & Visitors of the University of Virginia, 515 U.S. 819 (1995).

(Please let me know of any omissions in the list.) [Updated.] [Thanks to Ed Elfrink and Kevin Pybas for additions.]

USCIRF Issues 2009 Report On Religious Freedom Concerns In Various Countries

The U.S. Commission on International Religious Freedom today issued its 2009 Annual Report. The 274-page document issued under the 1998 International Religious Freedom Act recommends that the President designate 13 countries as "countries of particular concern"-- those where violations of religious freedom are the greatest. Eight of those countries are already designated CPC's by the State Department: Burma, North Korea, Eritrea, Iran, China, Saudi Arabia, Sudan, and Uzbekistan. (See prior related posting.) USCIRF recommends adding: Iraq, Nigeria, Pakistan, Turkmenistan and Vietnam.

The Report also places eleven countries on its "Watch List": Afghanistan, Belarus, Cuba, Egypt, Indonesia, Laos, Russia, Somalia, Tajikistan, Turkey, and Venezuela. (Today's Wall Street Journal carries an op-ed on the growing anti-Semitism in Venezuela.) The Commission calls for close monitoring of Bangladesh, Kazakhstan and Sri Lanka, and says it will issue a report on India later this year after a visit there by USCIRF members.

The USCIRF Report also discusses the role of the OSCE and the United Nations in religious freedom issues and discusses a move by the Organization of the Islamic Conference in the U.N. to limit free speech through banning "defamation of religions." Finally the Report discusses continuing problems in the U.S. policy of expedited removal for asylum seekers. [Thanks to Tom Carter for the lead.]

UN Official Surveys Religious Freedom In Macedonia

United Nations Special Rapporteur on freedom of religion or belief, Asma Jahangir, has concluded a 5-day visit to Macedonia, according to a report yesterday by UN News Centre. Her statement (full text) issued in a press release at the end of the visit says in part:

The Constitution provides that religious communities and groups are separate from the state and equal before the law. The Government therefore has a delicate role to play.... It ... has to stay even-handed in granting official status to all communities and yet protect the rights of all individuals, whether they are theistic, atheistic or non-theistic believers. A number of my interlocutors pointed to the perception that the two biggest registered religious communities in the country wield considerable political influence and are able to make inroads to the Constitutional concept of separation of state and religion.

I was encouraged by the reforms made in the 2007 Law on Religious Communities and Religious Groups. It is in line with international human rights standards; however, the implementation of the law has so far not been streamlined, for example with regard to registration issues....

Ms. Jahangir expressed astonishment at Macedonians' reaction to a recent court decision striking down teaching of religion in the school classroom. She also expressed concern about reports of incitement to racial or religious hatred.

Blogger Sues Police Over Revelation of Identity To Church

ABP reported yesterday on a lawsuit filed against Jacksonville, Florida police and state prosecutors by a blogger whose identity was revealed to his church by defendants who opened a criminal investigation into the blog at the request of church leaders. As explained in an earlier ABP story, Tom Rich began an anonymous blog in 2007 on which he raised concerns about Mac Brunson, pastor of First Baptist Church in Jacksonville. Police officer Robert Hinson, who is also on Pastor Brunson's security detail, opened an investigation in order to be able to subpoena Google and Comcast to discover the owner of the blog. After Hinson told church officials that the blogger was Tom Rich, the church issued trespass warnings against Rich and his wife, barring them from church premises. Rich's lawsuit seeks damages exceeding $15,000 for alleged violations of his 1st Amendment speech and free exercise rights and for violation of the Establishment Clause.

RLUIPA Decision On Church Zoning Appealed By County To 10th Circuit

According to the Longmont Times-Call, the Boulder (CO) County Commission voted yesterday to direct the county attorney's office and its special counsel to file an appeal with the 10th Circuit in Rocky Mountain Christian Church v. Board of County Commissioners of Boulder County, Colorado. In the case, the Colorado federal district court found that there was sufficient evidence to support the jury's finding that the county violated the equal terms, substantial burden and unreasonable limitations provisions of the Religious Land Use and Institutionalized Persons Act in denying the church's special use application. (See prior posting.)

ACLU Suit Challenges Zoning Limits On Church Use For Homeless Shelter

The ACLU of Pennsylvania announced yesterday that it has filed a federal lawsuit against North Coventry Township (PA) on behalf of Shenkel United Church of Christ challenging the township's refusal to permit the church to use its building to provide shelter to the homeless for a one month period. The church wished to take part in the "One Night at a Time Program" sponsored by Ministries at Main Street, but Township officials claimed that using the church building as a temporary homeless shelter would violate the Township's zoning law and building code. The complaint (full text) in Shenkel United Church of Christ v. North Coventry Township, (ED PA, filed 4/30/09), alleges that the township violated the church's rights under RLUIPA, the free exercise clause and the Pennsylvania Religious Freedom Protection Act. It contends that "Providing temporary, emergency shelter for people in need is a core religious ministry for Shenkel UCC."

Justice Department Settles Lakewood, NJ Housing Discrimination Case

In a press release yesterday, the U.S. Department of Justice announced a settlement in a discrimination lawsuit filed against the owner, manager and former manager of Cottage Manor Apartments in Lakewood, New Jersey. The Department of Housing and Urban Development, on behalf of tenants, charged that defendants engaged in discrimination on the basis of religion, race and national origin. According to the press release:

The defendants transferred or attempted to transfer Hispanic and African American tenants from their apartments located in its most desirable building to make room for Orthodox Jews whom they courted as new tenants from 2002 to 2004. The defendants then assigned the non-Jewish tenants to less desirable apartments in the rear of the property, which had fewer amenities and were less well maintained than the most desirable building at the front of the property. The defendants charged the incoming Jewish tenants less rent than they did to non-Jewish tenants for apartments of similar size.

The settlement, which still requires court approval, calls for defendants to pay $170,000 to identified discrimination victims and a $30,000 civil penalty to the government. (See prior related posting.) [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Britain To Require Sex Ed In Schools, But With Modifications For Faith Schools

On Monday, Britain's Department for Children, Schools and Families published a 56-page report titled Independent Review of the Proposal to Make Personal, Social, Health and Economic(PSHE) Education Statutory. As reported Tuesday by the Independent and the Guardian, the report-- whose recommendations have been accepted by Children's Secretary Ed Balls-- concludes that sex education should become a compulsory subject in both primary and secondary schools. However faith schools will be allowed to supplement materials with information regarding their religious beliefs that, for example, sex outside marriage, homosexuality or contraception is wrong. Pink News yesterday reported that a letter to Secretary Balls from the Pink Triangle Trust contends that if faith schools are allowed to tell students that under their religious views homosexual relationships are morally wrong, this will inevitably lead to an increase in anti-gay bullying. [Thanks to Tips-Q for the lead.]

3rd Circuit Rules On Constitutional Claims By 3 Abortion Protesters

On Monday, the U.S. 3rd Circuit Court of Appeals issued decisions in three related lawsuits brought by abortion protesters who regularly confront women outside a York, Pennsylvania Planned Parenthood Clinic to dissuade them from entering the clinic and having an abortion. Three separate plaintiffs sued the city and various police officials claiming violation of their free exercise and free speech rights when police officers restricted their access to a street adjacent to the Clinic. Two of the plaintiffs also asserted that their arrests outside the Clinic violated their 14th Amendment rights. Each of the cases arose in somewhat different factual contexts.

In McTernan v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court concluded that the burden placed on McTernan delivering his religiously motivated message was not pursuant to a neutral and generally applicable regulation since Clinic personnel, clients and escorts were permitted access to the street. Thus the restriction was subject to a strict scrutiny analysis. The court remanded the case for trial for a jury to determine whether the restriction served a "compelling" governmental interest and was narrowly tailored. The court also remanded McTernan's speech claim for trial. It held that police directives as to speech create potentials for arbitrary enforcement and are subject to heightened scrutiny. It held that factual questions remain as to whether the police restrictions were "narrowly tailored" to further the government's "significant" interest in traffic safety. The court however dismissed certain of McTernan's claims asserting municipal liability.

In Snell v. City of York, Pennsylvania, (3d Cir, April 27, 2009), the court found that no reasonable jury could find that the free exercise restrictions placed on plaintiff were "generally applicable", but remanded for trial on whether there was a "compelling" governmental interest in the restrictions. It remanded his free speech claim for trial on whether police restrictions were "narrowly tailored." The court also remanded Snell's 4th Amendment claim for a jury to decide whether there was probable cause for his disorderly conduct arrest, but rejected his excessive force claim. The court dismissed certain of Snell's claims asserting municipal liability.

In Holman v. City of York, Pennsylvania, (3d Cir., April 27, 2009), the court found that plaintiff failed to demonstrate that any restriction had been placed on his free speech or free exercise rights. The court also found no 4th Amendment violations in Holman's arrest for trespass and affirmed the trial court's grant of summary judgment for defendants.

Alliance Defense Fund issued a release discussing two of the cases. (See prior related posting.)

Obama's First 100 Days Performance On Religion and Faith Is Assessed

Yesterday's flood of coverage on President Obama's first 100 Days included at least two assessments of the President's handling of matters of faith and religion. US News & World Report says:

In his first 100 days in office, President Obama has sought a bold new role for faith in the White House, which aides say is aimed largely at dialing down the decades-old culture wars. Without changing his party's liberal stances on social issues like abortion, for example, Obama is nonetheless attempting to reach out to religious conservatives by pledging to work toward reducing demand for abortion.... So far, the project has blunted the Christian right's usual criticism of Democratic administrations .... But it has also alienated some traditionally Democratic constituencies, from advocates for strict church-state separation to the gay rights movement.

Obama's most substantive move on religion so far has been launching his own version of Bush's faith-based initiative office, tasked with helping religious groups get federal dollars for social service projects for the needy.

Americans United used the occasion to issue a "report card" on Obama's handling of church-state issues. It awarded the President an "A" on opposition to theocracy and judicial appointments. Obama received an "A-" on tax aid to religious schools and administration appointments. He received an "Incomplete" on his faith-based initiative.

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.