ACLU Has Taxpayer Standing To Challenge Charter School As Promoting Islam

In American Civil Liberties Union of Minnesota v. Tarek ibn Ziyad Academy, (D MN, July 21, 2009), a Minnesota federal district court held that plaintiff has taxpayer standing to challenge as an Establishment Clause violation the funding of a charter school by the state of Minnesota. Plaintiff alleges that the Tarek ibn Ziyad Academy advances the Muslim religion and fosters entanglement between government and religion. The court rejected defendants' argument that under the U.S. Supreme Court's Hein decision, funding of the school was a discretionary executive branch decision, not a legislative appropriation. It said: "The fact that the Commissioner [of Education] has the responsibility to choose or authorize charter schools (which then in turn receive funding) does not mean that Plaintiff here is challenging an executive action." The court did, however, dismiss plaintiff's claim of statutory violations and dismissed claims against certain of the defendants on sovereign immunity grounds. ACLU yesterday issued a press release on the decision and the Minneapolis Star-Tribune reported on the case. (See prior related posting.)

Kentucky County Removes 10 Commandments After Lawsuit Is Filed

WYMT-TV reported yesterday that in response to a lawsuit filed earlier this month, Jackson County, Kentucky officials have taken down the nine copies of the Ten Commandments that had been on the walls of the county court house. (See prior posting.) Judge executive William O. Smith said that they did not want to jeopardize taxpayer funds. The plaques will go to local businesses who will display them so people in the county can still see them. Jim Muncy, who put up the displays ten years ago and who now took them down, said emotionally: "All the laws of our state were based on the Ten Commandments. It's not that it's a religious statement, it's a statement of law and order."

Kenya Says Muslim Girls Can Wear Hijab To School

In Kenya, Education Permanent Secretary Prof. Karega Mutahi last week issued a circular to school principals and education officials confirming that Muslim girls are free to wear the hijab (head covering) to school. Spero News reported yesterday that the action came after some 20 public schools had suspended Muslim students for wearing the hijab.

Non-Muslims Find British Shariah Courts Attractive

The London Times reported yesterday that increasing numbers of non-Muslims in Britain are turning to Shariah arbitration tribunals in commercial disputes and other civil matters. The Muslim Arbitration Tribunal said that 5% of its cases (20 cases so far this year) involved non-Muslims who were attracted by the less formal nature of the arbitration process. The Muslim Arbitration Tribunal hopes to set up Shariah courts in ten new British cities this year, and hopes to act as an advisory body to other Islamic courts in Britain in order to create a consensus on procedure and rulings. [Thanks to PewSitter for the lead.]

Russian Schools Will Begin Courses On Religions and Ethics

Russian schools in 18 regions (about 20%) of the country next year will begin a pilot program to teach about religion and ethics. Yesterday's Fresno Bee reported that Russian President Dmitry Medvedev has announced a program under which schools will offer several choices: a course in one of the four traditional religions (Russian Orthodoxy, Islam, Buddhism or Judaism), a course presenting an overview of all four faiths, or a course in secular ethics. This approach was designed to ease concerns about mandatory classes in Orthodoxy that were introduced in a few regions three years ago.

Laotian Village Chief Tells Christian Families To Renounce Their Beliefs

The Christian Post yesterday reported on an incident in a small village in Laos that has been publicized internationally by Human Rights Watch for Lao Religious Freedom. According to the report:

The chief of Katin village, along with village security, social and religious affairs officials, warned all 53 Christian residents that they should revert to worshiping local spirits in accordance with Lao tradition or risk losing all village rights and privileges – including their livestock and homes... The previous Sunday (July 5), officials and residents confiscated one pig each from nine Christian families and slaughtered the animals in an effort to force them to renounce their faith....

The article chronicles a long history in this particular village of actions against Christian families living there.

Senate Passes Resolution Condemning Anti-Semitism

Yesterday the U.S. Senate passed by unanimous consent S. Con. Res. 11 condemning all forms of anti-Semitism and reaffirming the support of Congress for the Special Envoy to Monitor and Combat Anti-Semitism. The Resolution now goes to the House of Representatives. The resolution, among other things "rejects attempts to rationalize anti-Jewish hatred or attacks as a justifiable expression of disaffection or frustration over political events in the Middle East or elsewhere."

Protests Continue Over LDS Regulation Of Plaza In Salt Lake City

The Salt Lake Tribune this month has carried a series of articles (1, 2, 3) on the latest controversy over how the LDS Church administers Main Street Plaza, an area in downtown Salt Lake City that the Church purchased from the city in transactions beginning in 1999. Originally the city kept an easement, but after controversies over LDS regulation of expression on the Plaza, the city's right of way was sold to the Church. (Background.) The latest incident (full text of police report) arose in early July when LDS security guards asked a gay couple to stop their inappropriate behavior after the couple kissed. An argument ensued, and eventually the couple was cited for trespassing by the Salt Lake Police Department. This past Sunday, some 200 couples staged a "kiss-in" on Church property to protest the treatment of the gay couple. This was the second such protest. America Forever, an anti-gay group, was there with counter protest signs, and some 20 minutes of shouting between the groups ensued.

Opponents of Hate Crimes Bill Add Amendments That Make It More Contentious

Yesterday the U.S. Senate passed four amendments to the Matthew Shepard Hate Crimes Enforcement Act that it adopted last week as part of the Defense Authorization Act. (See prior posting). Three of the amendments (full text) were introduced by Sen. Jeff Sessions and, according to the Advocate, are seen by the Human Rights Campaign as "poison pills" designed to defeat the entire hate crimes bill. The Hill also reports on the amendments which were described by HRC Back Story as follows:

The first Sessions Amendment would allow the death penalty to be applied in hate crimes cases under some circumstances. This Amendment is unnecessary and is a poison pill designed to kill the bill. The Amendment is being offered by and supported by Senators who oppose the Matthew Shepard Act. It’s ironic that the very Senators who have falsely argued that this bill would put clergy in jail because of their beliefs think that those same clergy should be subject to the death penalty.

The second Sessions Amendment would place an additional burden on the Justice Department to revise its long established guidelines for hate crimes cases. This Amendment is unnecessary. The Department already contains well-established, clear and precise guidelines to govern cases involving bias-motivated violence that work well.

Finally, the third Sessions Amendment would provide additional penalties for crimes involving service members or their families. This Amendment is unnecessary. Existing statutes already provide special penalties on attacks against members of the Armed Services and veterans. In addition, the vague language of the Amendment is problematic. The Amendment provides for additional penalties for injuring the property of a serviceman or immediate family member. The scope of "family member" or what constitutes an "injury" to their property is unclear.

In response to the addition of the death penalty language, the Senate then passed a Democratic-sponsored amendment that would limit hate crime prosecutions until a state's attorney general has created standards for applying capital punishment. The death penalty amendment, offered by Sen. Sessions, was approved by unanimous consent despite a letter (full text) from 50 civil rights and religious groups opposing the amendment.

Meanwhile, according to yesterday's Washington Blade, the ACLU has issued a statement pressing for the House, rather than the Senate, version of the hate crimes bill. The House bill, H.R. 1913, was passed by the House in April. (See prior posting.) Concerned about freedom of speech and association, the ACLU favors language in the House bill that prohibits introducing substantive evidence of expression or association at trial unless it specifically relates to the offense charged. The House language though would not change evidentiary rules on the impeachment of witnesses. Chris Anders, ACLU senior legislative counsel, said that "an otherwise unremarkable violent crime" should not become a federal offense because the defendant viewed the wrong web site, belonged to a group espousing bigotry or subscribed to a magazine that promotes discriminatory views.

Project Will Rate Muslim Countries On Adherence To Shariah

UAE's The National today reports on the Cordoba Initiative. Led by New York-based Imam Feisal Abdul Rauf, its goal is to create a "Shariah Index" that will rate majority-Muslim countries on how closely they adhere to the principles of Islam. Rauf says: "What are the principles that make a state Islamic? We can say among them is justice, protection of religion and minorities and elimination of poverty, and so on." Among those funding the project, designed to improve relations between Muslim countries and the West, is the Malaysian government.

Members of Congress Join In Rally To Protest Falun Gong Persecution By China

Last week, members of Congress joined activists in a rally on Capitol Hill to mark the tenth anniversary of the start of persecution of the Falun Gong by the government of China. Yesterday's Epoch Times reports that speakers at the rally included New Jersey Rep. Chris Smith, Florida Rep. Lincoln Diaz-Balart and Florida Rep. Ileana Ros-Lehtinen.

Obama Meets At White House With Mormon Leader

Yesterday President Obama met at the White House with Thomas S. Monson, president of the Church of Jesus Christ of Latter-Day Saints. KSL-TV and the Salt Lake Tribune both report on the meeting at which Monson presented the President with a specially-researched 5-volume leather-bound history of the Obama family gong back hundreds of years. After the meeting, Obama issued a statement, in part expressing his appreciation for the genealogical records. The White House meeting was arranged by Nevada Senator (and majority leader) Harry Reid. Also attending the Oval Office meeting was Mormon Elder Dallin Oaks, who once taught at the University of Chicago Law School (as did Obama).

Israeli Court Awards Damages To Bedouin Family Excluded From Swimming Pool

In Israel, the Beersheba Magistrate's Court today awarded damages equivalent to $2560 (US) to a Bedouin family who were denied entry to a swimming pool in the town of Ofakim. According to YNet News, plaintiffs in the lawsuit alleged discrimination on the basis of religion, race and nationality. They claimed that the pool owner objected to the mother's veil, saying it would drive away his other customers. Pool owner Zion Peretz allegedly demanded that she remove it, or else that the family return at a later time to swim. Peretz admitted that he did not let the mother enter, but said it was because a rabbi and his six children were swimming in the pool and he had promised them not to let women enter. The judge rejected that as a defense and held that the pool owner's discrimination had insulted plaintiff family in a significant manner.

Competing Lawsuits Filed In Dispute Over Religious Services At Co-op Unit

Canopus is a Putnam County, New York cooperative comprised of 22 free-standing homes on 15 acres of land. A longstanding dispute between Anthony Bondi, Jr., a lessee of one of the homes, and his neighbors has led to competing lawsuits being filed in state court in New York. Bondi is head of an organization known as the Holy Orthodox Catholic and Apostolic Church of America. He holds services in his home which are attended each week by ten to 15 people. The cooperative has threatened to terminate his lease saying he is in violation of a lease provision that limits use of homes to residential purposes. Neighbors say that Bondi's advertising of services, including a website, invites strangers into the close-knit neighborhood. In 2008, Bondi filed a housing discrimination complaint with the New York State Division of Human Rights and with federal authorities at HUD. The New York agency issued a Determination of Probable Cause, and Canopus (as permitted by New York law) elected to have the complaint adjudicated in civil court.

While settlement negotiations were going on, Canopus-- without advance notice-- filed in state court. The complaint (full text) in Canopus Realty Corp. v. Bondi, (Sup. Ct. Putnam Co., filed 7/2/2009) seeks a declaratory judgment that Bondi does not have a right to run a business, including his Church, from his residence, and that enforcement of the lease terms that restrict use to residential purposes does not violate state or federal civil rights laws. In response, New York filed a housing discrimination lawsuit against the cooperative. The complaint (full text) in New York State Division of Human Rights v. Canopus Realty Corp., (Sup. Ct. Putnam Co., filed 7/14/2009), alleges religious discrimination, saying that the cooperative does not prevent other residents from inviting guests to their homes or to the co-op's clubhouse. It asks for a declaratory judgment, injunction and damages, as well as various broader remedial actions by Canopus. Courthouse News Service today reports on the lawsuits.

Recent Articles of Interest

From SSRN:

• William W. Van Alstyne, Religion in the Workplace: A Report on the Layers of Relevant Law in the United States, (Comparative Labor Law & Policy Journal, Vol. 30, No. 3, 2009).
• Reid K. Weisbord & Peter DeScioli, The Effects of Donor Standing on Philanthropy: Insights from the Psychology of Gift-Giving, (Gonzaga Law Review, Vol. 45, No. 2, January 2010).

From SmartCILP:

• Charlton C. Copeland, God-Talk in the Age of Obama: Theology and Religious Political Engagement, 86 Denver University Law Review 663-691 (2009).
• Josh Goodman, Divine Judgment: Judicial Review of Religious Legal Systems in India and Israel, 32 Hastings International & Comparative Law Review 477-528 (2009).
• Robin Fretwell Wilson, Same-Sex Marriage and Religious Liberty: Life After Prop 8, 14 NEXUS 101-111 (2008-2009).

Texas Town Is Changing City Council Invocation Policy

San Marcos, Texas City Council has responded to complaints by Americans United and the ACLU that invocations opening Council meetings have almost always been specifically Christian in content. The Austin American Statesman reported last Friday that Council has directed City Attorney Michael Cosentino to develop a policy that prohibits prayers which proselytize or advance one religion. Also, the invocation at tomorrow's Council meeting will be delivered by Rabbi Kerry Baker from Austin's Congregation Kol Halev.

Iranian Singer Sentenced In Abstentia To 5 Years For Recording of Quranic Verses

In Iran, popular singer-composer Mohsen Namjoo-- described as Iran's Bob Dylan-- has been sentenced in abstentia to five years in prison for dishonoring the Quran. Reports last week by Press TV, AFP and the blog Freemuse give details. An Iranian Quran scholar filed a complaint against Namjoo charging that he had presented "an insulting, sneering performance of Quranic verses with musical instruments." Namjoo, who has now moved to Vienna, says that his private recording made four years ago was released without his authorization. He has apologized for the recording. Namjoo's brother says the family will appeal the jail sentence.

Consent Order Entered In Challenge To City's Speech Ordinance

Earlier this month, a New Jersey federal district court entered a Consent Order (full text) reflecting a settlement in Wollod v. City of Wildwood, New Jersey, (D NJ, July 8, 2009). The lawsuit, brought by a Christian evangelist, challenged ordinances that restrict the distribution of literature in the beach town. (See prior posting.) Under the settlement, the city agreed to amend its ordinances so that individuals (as opposed to larger groups) will not be required to obtain a permit or pay a fee to engage in religious speech or hand out religious literature on public sidewalks, parks and boardwalks in Wildwood. It also agreed to pay plaintiff $15,500 in attorneys fees and costs and specifically stipulated that plaintiff would be permitted to engage in religious speech in public forums. Alliance Defense Fund issued a release on the case last Wednesday.

Recent Prisoner Free Exercise Cases

In Barnes v. Pierce, (5th Cir., July 10, 2009), the U.S. 5th Circuit Court of Appeals rejected an inmate's claims under the 1st and 14th Amendments and RLUIPA that his rights were violated when he was precluded from participating in any religious services while on cell restriction, and otherwise was limited to one primary religious service per week.

In Mecca Allah Shakur v. Sieminski, 2009 U.S. Dist. LEXIS 60796 (D CT, July 16, 2009), a Connecticut federal district court rejected an inmate's claim that his free exercise rights were violated when he was allowed to attend congregate religious services only in "Q-Unit", a step-down unit from administrative segregation, instead of being able to attend them in the prison's main building.

In Price v. Owens, 2009 U.S. Dist. LEXIS 58844 (ND GA, April 28, 2009), a Georgia federal district court held that an inmate's free exercise and RLUIPA challenges to a prison's grooming policy is not subject to the "continuing violation" or "continuing tort" doctrine for purposes of determining whether the statute of limitations has run. The statute runs from the time of the first application of the grooming policy to plaintiff, and not from each haircut. In Price v. Owens, 2009 U.S. Dist. LEXIS 58840 (ND GA, July 8, 2009), the court denied plaintiff's motion for reconsideration of the matter.

In Mayo v. Norris, 2009 U.S. Dist. LEXIS 59531 (ED AR, June 29, 2009), an Arkansas federal magistrate judge recommended that the court dismiss an inmate's claim that assessment of various fees against his inmate trust account violates his free exercise rights. Plaintiff alleged that he is a "Disciple of Jesus Christ," and assessing those fees violates Romans 13:8. He says the practice "is contrary to the doctrine of Jesus, thus hindering me from obeying the doctrine of my Savior to the salvation of my soul."

In Powell v. Smith, 2009 U.S. Dist. LEXIS 58906 (ED CA, June 25, 2009), a California federal district court dismissed an inmate's claim that his free exercise rights were infringed when he was stripped searched in the presence of female corrections officers. Plaintiff asserted that this practice violated his Muslim religious beliefs.

In Rodriguez v. Schwarzenegger, 2009 U.S. Dist. LEXIS 59680 (ED CA, June 24, 2009), a California federal district court allowed plaintiff to move ahead with claims that prison officials
improperly confiscated his personal property (including religious objects) for extended periods of time, unreasonably restricted his access to religious ceremonies, and desecrated the prison's Native American sacred grounds.

Washington State Begins Rulemaking To Head Off Holiday Display Confusion At Capitol

In anticipation of this year's holiday season, the Washington state Department of General Administration last week issued a Pre-proposal Statement of Inquiry and a letter announcing the start of a rule-making process on use of public areas of the Capitol campus. The Tacoma News Tribune on Friday reported that the proposal seeks to avoid last year's confusion which it described:

A handful of displays had been allowed in a third-floor hallway of the Legislative Building, not far from a 30-foot noble fir sponsored by the Association of Washington Business for the holidays. A real estate agent then added a Nativity creche. After that, the Wisconsin-based Freedom from Religion Foundation put up an atheist placard equating religion with myth, two Christian displays were added mocking atheism, and a Jewish group displayed a menorah. Fourteen applications had been filed when the department issued a moratorium on further displays.

Priest's Conviction Upheld Over Challenge To Testimony Regarding Religion

State v. Bussmann, (MN Ct. App., July 14, 2009), was an appeal after a retrial of Catholic priest John Joseph Bussmann on a charge of criminal sexual conduct with a woman he employed as director of youth ministries. In 2007 the Minnesota Supreme Court, in a fragmented decision, concluded that Bussmann's earlier conviction under the clergy criminal sexual conduct statute, based on the admission of extensive evidence concerning religious doctrine and church policies and practices, violated the Establishment Clause. (See prior posting.) Here the Court of Appeals upheld the second conviction, finding:

Unlike the first trial, on retrial there was no testimony regarding Catholic Church doctrine, the power that priests have traditionally had over parishioners, or internal church procedures regarding allegations of abuse. Because the charging statute requires proof of certain elements that directly touch and concern religious practices, it is impossible to prove the charged offense without some religion-related testimony. After reviewing the limited religion-related testimony from Father McDonough, we are satisfied that the district court carefully adhered to the Bussmann I admonitions and admitted only such religion-related testimony as was necessary for the state to prove the charged offense. We conclude that the religion-related testimony did not excessively entangle church doctrine with civil law.

Court Says FLDS Members Cannot Intervene In UEP Trust Litigation

KSL News reports that on Friday, a Utah judge rejected a motion by several leading members of the FLDS Church to intervene in a court case that is seeking to reform the terms of the United Effort Plan Trust-- the trust that holds title to FLDS Church property. In In the Matter of the United Effort Plan Trust, (UT 3d Dist. Ct., July 17, 2009), Judge Denise Lindberg wrote:

potential beneficiaries of charitable trusts have no right to make claims on such trusts. Because the UEP Trust is a charitable trust, the only individuals with legally cognizable interests are the Utah and Arizona Attorneys General (A.G.s) as representatives of the community, and the Court-designated Special Fiduciary.

The court also issued an order requiring the Utah Attorney General to forward certain disputed funds to the court, and scheduled a hearing on the sale of the Berry Knoll Farm property-- land that FLDS says should be a holy temple site. Funds are needed by the Trust to meet accrued debts.

2nd Circuit: Muslim Scholar Gets Chance To Challenge Visa Denial

A Muslim scholar who was prevented from accepting a tenured position at Notre Dame University when his visa was revoked will have his day in court after all. Swiss-based Tariq Ramadan was barred from the U.S. after he disclosed in an interview that he had donated $1,336 to the Association de Secours Palestinien, a group which directed funds to Hamas. In American Academy of Religion v. Napolitano, (2d Cir., July 17, 2009), the U.S. 2nd Circuit Court of Appeals remanded the case so the trial court could decide whether consular officials gave Ramadan a reasonable opportunity to demonstrate that he did not know, and could not reasonably have known, that ASP channeled funds to Hamas. New York Law Journal gives more details on the case. (See prior related posting.)

British Police Can Obtain Accommodation for Pagan Holidays

BBC News reported Thursday that discussions between the recently-formed Pagan Police Association and Britain's Home Office have resulted in arrangements for Pagan police in some areas to schedule their vacation times to coincide with Pagan holidays. They will be able to take off for up to eight days of pagan holidays each year-- such as the summer solstice and Halloween. [Thanks to Scott Mange for the lead.]

Hawaiian Church Sued Over Construction On Former Cemetery Site

AP reports on a lawsuit filed in Hawaii last Wednesday to require Honolulu's Kawaiahao Church and the state Department of Land and Natural Resources to fully comply with state burial laws in a construction project on land that was once a cemetery. The church is building a $17.5 million multipurpose center. The suit was filed by Abigail Kawananakoa after initial construction discovered 69 graves. Among those buried in the cemetery is Queen Kapiolani, an ancestor of the plaintiff in the lawsuit. The church says it followed all state laws in the construction, while the lawsuit alleges that the laws have been circumvented in order to speed up the building project

3rd Circuit: Trial Court Properly Refused To Interfere In State Civil Rights Probe

In Ocean Grove Camp Meeting Association v. Vespa-Papaleo, (3d Cir., July 15, 2009), the U.S. 3rd Circuit Court of Appeals said that the district court correctly applied the Younger abstention doctrine when it refused enjoin two related investigations by the New Jersey Division on Civil Rights. The investigations were undertaken after the Methodist Church's Ocean Grove Camp Meeting Association rejected requests to use its Boardwalk Pavilion for same-sex civil union ceremonies by two lesbian couples. (See prior posting.) Generally Younger prevents federal courts from interfering in pending state judicial or quasi-judicial proceedings when the parties will be able to raise their constitutional objections in the state proceedings. Since the state investigation related only to use of the chapel, the court remanded to the district court the broader request by the Association for a declaratory judgment relating to the use of the remainder of its property. A release by Alliance Defense Fund focuses on that portion of the decision. AP yesterday reported on the case. (See prior related posting.)

US Military Trains Afghan Army To Show Its Muslim Face To Locals

The Wall Street Journal yesterday reported on efforts by the U.S. military in Afghanistan to train the Afghan National Army to use religion to counter propaganda of the Taliban. Taliban fighters ride motorcycles through small villages telling locals that the Afghan army is led by godless Communists who are trying to rid the country of Islam. U.S. Army Capt. James Hill is training Afghan army mullah Lt. Col. Abdul Haq to counter this. He supplies Haq with prayer rugs to hand out in villages, installs loudspeakers so local residents can hear the call to prayer to soldiers on Afghan army bases, and encourages Afghan army personnel to mix with villagers to display their religious beliefs. Haq says: "The only way we can keep people from becoming Taliban is by promoting the Muslim nature of the Afghan National Army." [Thanks to ChristianFighterPilot.com for the lead.]

8th Circuit Upholds School's Literature Distribution Policy

In Roark v. South Iron R-1 School District, (8th Cir., July 16, 2009), the U.S. 8th Circuit Court of Appeals upheld a school district's policy on distribution of "printed material" in schools by outside organizations. The policy requires the organization to obtain advance approval, but approval will be given unless the material is libelous, obscene, or unlawful; advertises products or services; endorses a candidate; promotes alcohol, tobacco, drugs, or other illegal activity; or is likely to cause substantial disruption at the school. Distribution is limited to before and after school and lunch hour, and can take place only in front of the administrative offices or in a corner of the cafeteria.

Under a prior school policy, members of the Gideons were permitted to distribute Bibles in 5th grade classrooms during school hours. In a challenge to the policy, the district court entered a permanent injunction prohibiting any distribution of Bibles to elementary school children on school property during the school day. (See prior posting.) The Court of Appeals upheld the continuation of that injunction. The court then moved to consider whether to uphold the district court's declaratory judgment relating to the new policy. Chief Judge Loken, writing the primary opinion, said:

the Judgment neither enjoined the District from implementing the new policy nor declared that policy unconstitutional. Rather, it cross referenced an amended complaint seeking a declaration “that Defendants’ actions in instituting” the new policy violated the Establishment Clause. The precise import of the declaratory judgment is hopelessly obscure. Given its impact on the operations of a state governmental entity, this ambiguity alone requires reversal.

He then went on to also reject a facial Establishment Clause challenge to the new policy, finding that any major objection to it was obviated by the injunction that, as he read it, precluded the distribution of Bibles even under the new policy. Judge Beam concurring said he believes that the injunction only prohibits the earlier practice of distributing Bibles in classrooms. Judge Kyle concurred, saying that while he believes that the new literature distribution policy was passed for the purpose of promoting Christianity, he could concur because, in his view, "the portion of the court’s opinion discussing the new policy under Lemon is dicta...." Liberty Counsel yesterday issued a press release on the decision, as did Americans United.

Obama Nominates Jacqueline Berrien To Head EEOC

The White House announced yesterday that President Barack Obama has sent to the Senate the nomination of Jacqueline A. Berrien to chair the Equal Employment Opportunity Commission. Berrien currently serves as Associate Director-Counsel of the NAACP Legal Defense and Educational Fund (LDF). The announcement was made just hours before Obama spoke at the NAACP's annual meeting. (New York Times.) According to a White House press release which details her background, Berrien is a graduate of Harvard Law School where she served as General Editor of the Harvard Civil Rights-Civil Liberties Law Review. The EEOC enforces the nation's employment discrimination laws, including laws banning religious discrimination in employment.

State Agency Removes Website Links To "Open and Affirming" Churches

Connecticut's Department of Children and Families has removed from its website links to "open and affirming" churches-- i.e. churches that welcome gays, lesbians and persons who are bisexual and transgender. Yesterday's Hartford Courant reports that the links were removed after the Family Institute of Connecticut (FIC), a group that opposes same-sex marriage, threatened to sue. It claimed that placing the links on the state agency's website violates the Establishment Clause as well as parental rights. FIC also asked the Department to make sure that the organization training social workers on issues faced by GLBT youth does not provide information on "open and affirming" churches in its training sessions.

Washington Supreme Court Finds Permit Moratorium Violated Church's Rights

In City of Woodinville v. Northshore United Church of Christ, (WA Sup. Ct., July 16, 2009), the Washington state Supreme Court held that the city of Woodinville violated a church's free exercise rights protected By Art. I, Sec. 11 of the Washington Constitution when it refused to process the church's application for a temporary use permit so it could host a Tent City for the homeless for a period of 90 days. The city had placed a total moratorium on temporary use permits in the area in order to study the environmental effects of new development. Finding that the state constitution's free exercise protections are broader than those in the federal Constitution, the court said:

the City’s total moratorium placed a substantial burden on the Church. It prevented the Church from even applying for a permit. It gave the Church no alternatives.... The City failed to show that the moratorium was a narrow means for achieving a compelling goal. Therefore, the City’s action constituted a violation of article I, section 11 of our constitution.

The court also held that while the church had previously agreed that it would not host another Tent City without obtaining a use permit, under the unique circumstances of this case it was excused from performance of the agreement.

A concurring opinion by Justice Sanders (joined by Justice Chambers) argued that a city cannot constitutionally condition a church's use of its own property on its applying for a use permit. He also concluded that the city's action violated RLUIPA, so the church was entitled to recover damages and attorneys' fees. Yesterday's Merced (CA) Sun-Star reported on the decision.

South Africa's Constitutional Court Protects Widows In Polygamous Muslim Marriages

On Wednesday, South Africa's Constitutional Court held that all the wives in a polygamous Muslim marriage are entitled to claim a share of their husband's property when the husband dies without leaving a will. In Hassam v. Jacobs NO, (So. Afr. Const. Ct., July 15, 2009), the court was reviewing a lower court decision holding that section 1(4)(f) of the Intestate Succession Act was inconsistent with the Constitution to the extent that it makes provision for only one spouse in a Muslim marriage to be an heir. As described by a Media Summary released by the Court:

Nkabinde J writing for a unanimous Court confirmed the declaration of constitutional invalidity made by the High Court albeit in a slightly different manner. She held that the objective of the Act, which is to lessen the dependence of widows on family benevolence, would be frustrated if the continued exclusion of widows in polygynous Muslim marriages were to persist. Nkabinde J held further that the Act violates the applicant’s right to equality. The exclusion of women in the position of applicant from the protection of the Act unfairly discriminates against them on the grounds of religion, martial status and gender. This exclusion is not justifiable in a society guided by the principles of equality, fairness, equity, social progress, justice, human dignity and freedom.

In concluding, Nkabinde J held that the word "spouse" in the Act is not reasonably capable of being understood to include more than one spouse in the context of a polygynous marriage. To remedy the defect, the words "or spouses" are to be read-in after each use of the word "spouse" in the Act.

South Africa's Business Day reported on the decision.

Senate Passes Hate Crimes Bill As Amendment To Defense Authorization Act

On Thursday night, the U.S. Senate agreed to add the Matthew Shepard Hate Crimes Prevention Act as an amendment to the 2010 National Defense Authorization Act. First by a vote of 78-13, the Senate agreed to an amendment clarifying that the hate crime provisions should not be construed or applied to infringe on First Amendment rights. Then the Senate voted 63-28 to invoke cloture on the hate crimes bill. Voice vote passage immediately followed. (AP). (See prior related posting.)

UPDATE: Here is the text of the amendment, offered by Sen. Brownback and adopted by the Senate, intended to protect First Amendment rights:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes on any rights under the first amendment to the Constitution of the United States, or substantially burdens any exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, association, if such exercise of religion, speech, expression, or association was not intended to--
(1) plan or prepare for an act of physical violence; or
(2) incite an imminent act of physical violence against another.

Section 10 of the Hate Crimes Prevention Act also contains other provisions on construction of the Act and free expression.

Article Profiles Activities of Child Evangelism Fellowship

The August issue of Harper's magazine carries a long article by by Rachel Aviv titled Like I Was Jesus: How To Bring a Nine Year Old To Christ. It explores the work of Child Evangelism Fellowship, the group that won an important Supreme Court victory in 2001 in Good News Club v. Milford Central School . The case gave CEF's after-school Bible group, the Good News Club, the right to equal access with secular groups to use of school premises after school hours. Aviv's article focuses largely on CEF's summer work in a poor neighborhood in Connecticut, where teenage missionaries bring children to Christ through a week-long Bible club conducted in a neighborhood park near their housing project. Aviv also visits a camp at which teenage missionaries are trained, among other things, in how to use the "EvangeCube"-- a plastic toy that tells the Gospel story in pictures.

Discussing the aftermath of the Supreme court's Good News Club case, Aviv reports:

Since the ruling, the Fellowship, funded by donations, has engaged in more than twenty follow-up suits against schools that refused to comply with the Milford decision. Hundreds of other cases not directly involving the Fellowship have cited the ruling, leading to a level of church-state entanglement that had been prohibited for decades. Meanwhile, the number of Good News Clubs in public schools has quietly and steadily swelled. The ministry held 1,155 after-school clubs in 2000; in 2007, there were 3,956, reaching 137,361 children. Jaimie Fales, the Fellowship’s spokesperson, says that she still hears people complaining about the good old days before "they took God out of the schools. I have to remind them, ‘Hey, listen, you can have prayer in public schools! You can have the Bible in public schools! That’s just complaining. We can do it. We just got to get up and actually do it! The Supreme Court flung the doors wide open.’"

[Thanks to the article's author for sending the PDF.]

Minister's Editorial Is Not Basis For Revoking His Probation

A Michigan appellate court, while upholding the conviction of Rev. Edward Pinkney for paying voters $5 apiece to vote in an election for the recall of a city commissioner and for possessing absentee ballots, reversed the lower court's revocation of Pinkney's probation. As a condition of probation, the trial court had required that Pinkney refrain from "any assaultive, abusive, defamatory, demeaning, harassing, violent, threatening, or intimidating behavior, including the use, through any electronic or print media under [his] care, custody or control, of the mail, e-mail or internet."

Shortly after the trial court denied Pinkney's request for a new trial, he wrote an editorial for a Chicago monthly newspaper charging the judge who denied his motion with being a racist, and said he was "dumb" and "corrupt." One paragraph in the editorial, paraphrasing several verses from Deuteronomy, said:

Judge Butzbaugh, it shall come to pass; if thou continue not to hearken unto the voice of the Lord thy God to observe to do all that is right; which I command thee this day, that all these Curses shall come upon you and your family, curses shalt be in the City of St. Joseph and Cursed shalt thou be in the field, cursed [sic] shall come upon you and your family and over take thee; cursed shall be the fruit of thy body. The Lord shall smite thee with consumption and with a fever and with an inflammation and with extreme burning. They the demons shall Pursue thee until thou persist.

In People of the State of Michigan v. Pinkney, (MI Ct. App., July 14, 2009), the state court of appeals held that revoking Pinkney's probation for writing the editorial was improper. It held:

To the extent that the prohibition of defamatory and demeaning behavior impinges on defendant’s first amendment rights, the prohibition was not proper, as it was not directly related to defendant’s rehabilitation or to the protection of the public.

The court concluded that it need not decide whether the paraphrase of Biblical verses violated the parole condition barring threatening behavior. It said:

Plaintiff agrees that the paraphrase of Deuteronomy 28 "is not defensible as anything other that [sic] hyperbole" and that the paraphrase could not serve as a lawful basis for revoking defendant’s probation.

AP yesterday reported on the decision. An ACLU press release on the decision contains links to several briefs supporting Pinkey's position that were filed in the case.

Sotomayor Questioned About Her Free Exercise Jurisprudence

Finally yesterday, in the third day of Judiciary Committee hearings on the confirmation of Judge Sonia Sotomayor as Associate Justice of the United States Supreme Court, one Senator asked her a question about her decisions on religious freedom. Here, from the full transcript, is the relevant exchange between her and Sen. Benjamin Cardin (D-MD):

CARDIN: Well, let me conclude on one other case that you ruled on, where I also agree with your decision. That's the Ford v. McGinnis, where you wrote a unanimous panel opinion overturning a district court summary judgment finding in favor of the Muslim inmate who was denied by prison officials access to his religious meals marking the end of Ramadan.

You held that the inmate's fundamental rights were violated and that the opinions of the department of correction and religious authorities cannot trump the plaintiff's sincere and religious beliefs.

The freedom of religion is one of the basic principles in our Constitution, as I said in my opening comments. It was one of the reasons why my grandparents came to America. The freedom of religion, expression is truly a fundamental American right.
Please share with us your philosophy as to -- maybe it's a wrong use of terms -- but the importance of that provision in the Constitution and how you would go about dealing with cases that could affect that fundamental right in our Constitution.

SOTOMAYOR: I don't mean to be funny, but the court has held that it's fundamental in the sense of incorporation against the state. But it is a very important and central part of our democratic society that we do give freedom of religion, the practice of religion, that the Constitution restricts the -- the state from establishing a religion, and that we have freedom of expression in speech, as well.

Those freedoms are central to our Constitution. The Ford case, as others that I had rendered in this area, recognize the importance of that in terms of one's consideration of actions that are being taken to restrict it in a particular circumstance.

Speaking further is difficult to do. Again, because of the role of a judge, to say it's important, that it's fundamental, and it's legal and common meaning is always looked at in the context of a particular case. What's the state doing?

In the Ford case that you just mentioned, the question there before the court was, did the district court err in considering whether or not the religious belief that this prisoner had was consistent with the established traditional interpretation of a meal at issue, OK?

And what I was doing was applying very important Supreme Court precedent that said, it's the subjective belief of the individual. Is it really motivated by a religious belief?

It's one of the reasons we recognize conscientious objectors, because we're asking a court not to look at whether this is orthodox or not, but to look at the sincerity of the individual's religious belief and then look at what the state is doing in light of that. So that was what the issue was in Ford.

Also yesterday, Sen. Jeff Sessions entered into the record a letter (full text) from Richard Land, President of the Southern Baptist Convention's Ethics & Religious Liberty Commission, opposing Sotomayor's confirmation.

The Washington Post has transcripts of the questioning of Sotomayor by each of the Senators on the Judiciary Committee.

Ohio Church Groups Say They Will Try To Block Newly Authorized Slot Machines

After a long political battle, the Ohio legislature on Monday passed a balanced budget (H.B. 1) by authorizing the Governor to permit installation of slot machines (video lottery terminals "VLTs") at Ohio's seven race tracks. The slots are projected to bring in $933 million in revenue to the state. (Columbus Dispatch). Gov. Ted Strickland, an ordained Methodist minister, is expected to sign the bill. However, according to a Columbus Dispatch report yesterday, groups such as the Ohio Council of Churches and the anti-gambling task force of the United Methodist Church [background] say they will take legal action and launch a grass-roots campaign, to prevent moving ahead with the VLTs. They want the state to instead raise taxes to more directly fund the state's budget deficit. They say that the VLT's violate Art. 15, Sec. 6 of the Ohio Constitution that allows only the state lottery whose funds are to be used to support education. The Dispatch yesterday also published a Q&A setting out the official position on the legality of the slot machine plan and details of its proposed operation.

Suit Charges Military Contractor With Refusing To Accommodate Wearing of Hijab

In Houston (TX), a federal lawsuit charging religious discrimination has been filed against K.B.R., Inc. (the former Kellogg Brown & Root). The company is particularly known for its extensive work in Iraq under contracts with the military. The complaint (full text) in Tounkara v. K.B.R., Inc. (SD TX, filed 7/13/2009), alleges that K.B.R. violated Title VII of the 1964 Civil Rights Act by "failing to make a reasonable, religious accommodation to allow the plaintiff to wear her hijab (headscarf) in observance of her Muslim faith during her hours of employment." According to a sharply critical report by the Houston Press, Karen Tounkara, a Muslim, was hired by K.B.R. through a nursing agency to help prep its workers who were going to Iraq. K.B.R. informed Tounkara it had a policy that no employee can wear a head covering at work. It told her that she could wear her headscarf up to the company's gates, and could put it back on when she left.

Court Upholds University's Facilities Use Policy

In Rock for Life- UMBC v. Hrabowski, (D MD, July 8, 2009), a Maryland federal district court rejected claims by a student anti-abortion group that its 1st and 14th Amendment rights were violated by university restrictions on the location of a display sponsored by the group. The challenge to the University of Maryland, Baltimore County Policy on Facilities Use was filed after disputes over where on campus for the group's "Genocide Awareness" photo mural exhibit could be set up. During the course of the litigation, the University modified its policy. This led the court to dismiss as moot plaintiff's facial challenge to the Policy. The court then moved to plaintiff's "as applied" challenge. Using standards applicable to a limited public forum, the court rejected plaintiff's 1st Amendment claim. The court concluded that the University's actions under its regulations were narrowly tailored, content-neutral time, place and manner restrictions, motivated by safety, security and traffic-flow concerns. The court also rejected plaintiff's equal protection claims.

Lawsuit Challenges Congress' Decision To Add Motto and Pledge To Capitol Visitor Center

The Freedom from Religion Foundation yesterday filed suit in federal district court in Wisconsin challenging Congress' directive to the Architect of the Capitol to engrave the motto "In God We Trust" and the Pledge of Allegiance in the Capitol Visitor Center. The complaint (full text) in Freedom from Religion Foundation, Inc. v. Ayers, (WD WI, filed 7/14/2009) alleges that the directive violates the Establishment Clause. An FFRF press release reports that the lawsuit was filed after both the House and Senate last week passed resolutions ordering the additions in response to threats by Sen. Jim DeMint last December to hold up the opening of the Visitor Center which he said failed to recognize the country's religious heritage. (See prior related posting.) AP also reports on the lawsuit.

Court Enjoins Community College's Sexual Harassment Policy As Overbroad

In Lopez v. Candaele, (CD CA, July 10, 2009), a California federal district court issued a preliminary injunction enjoining enforcement of Los Angeles Community College District’s Sexual Harassment Policy. The court found that the policy is overbroad, prohibiting a substantial amount of protected speech. The case grew out of a class presentation by plaintiff, in which he spoke about his religion-based opposition to same-sex marriage. His professor called him a "fascist bastard," cut his speech short, and did not enter a grade on his evaluation sheet. (See prior posting.) However ultimately plaintiff was awarded a grade of A in the course. Alliance Defense Fund issued a release applauding the ruling, saying: "Christian students shouldn't be penalized for expressing their beliefs at a public college."

Senate Appropriations Bill Has Security Funds For Non-Profits; Extends Religious Worker Program

Last Thursday, the U.S. Senate passed its version of H.R. 2892, the Homeland Security Appropriations Act. A conference committee was appointed to reconcile differences between the Senate version and the version the House has already passed. Two interesting provisions are included in the Senate bill:

As reported by JTA, Title III's appropriations for the State Homeland Security Grant Program [pg. 30 of PDF] includes $20 million to protect high-risk non-profit institutions, including religious institutions, against terrorist attack. The Senate version appropriates $5 million more than the House version did for nonprofits.

Title V, Sec. 571 [pg. 95 of PDF], extends the controversial Special Immigrant Nonminister Religious Worker Program until Sept. 30, 2012. However it requires USCIS to submit to the Senate and House Judiciary Committees by March 30, 2010 a report on the risks of fraud and noncompliance in the program and a detailed plan describing actions to be taken against those who do not comply with the conditions of their special visas-- followed by a progress report on action actually taken. (See prior related posting.) The House version of the Homeland Security Appropriations Act contains no provisions extending the Religious Worker Program that, under current law, expires this September.

Sikh Group Wants Governor To Veto Oregon Workplace Religious Freedom Act

Yesterday the Sikh American Legal Defense and Education Fund wrote Oregon Gov. Ted Kulongoski, asking him to veto the Oregon Workplace Religious Freedom Act (SB 786) which was passed by the state legislature several weeks ago. (Full text of letter.) The bill generally requires employers to reasonably accommodate employees' religious practices and observances. SALDEF's concern, however, is the provision in the bill that still allows public and charter schools to prohibit teachers from wearing religious dress while engaged in the performance of duties as a teacher. This presumably would allow school districts to ban Sikh teachers from wearing their religiously-mandated dastaars (turbans). (SALDEF release.) The letter urges the governor to "veto SB 786, as proposed, and ask the Oregon legislature to approve a version of the bill that honestly and comprehensively protects religious freedom in the workplace."

Texas Board of Education Panel Splits On Role of Religion In History Curriculum

The Wall Street Journal yesterday reported on the work of the Texas State Board of Education's panel of experts who are reviewing the state's social studies curriculum. The panel is evenly divided between social conservatives and more moderate or liberal in-state university faculty with expertise in education or social sciences. (See prior posting.) The full text of each panel member's review is available online. According to the Wall Street Journal's report:

[A] divide has opened over how central religious theology should be to the teaching of history. Three reviewers, appointed by social conservatives, have recommended revamping the K-12 curriculum to emphasize the roles of the Bible, the Christian faith and the civic virtue of religion in the study of American history.... "We're in an all-out moral and spiritual civil war for the soul of America, and the record of American history is right at the heart of it," said Rev. Peter Marshall....

The conservative reviewers say they believe that children must learn that America's founding principles are biblical. For instance, they say the separation of powers set forth in the Constitution stems from a scriptural understanding of man's fall and inherent sinfulness, or "radical depravity," which means he can be governed only by an intricate system of checks and balances. The curriculum, they say, should clearly present Christianity as an overall force for good -- and a key reason for American exceptionalism, the notion that the country stands above and apart.

This summer, Texas social studies teachers will draft the actual recommendations to the Board for curriculum changes. [Thanks to Rabbi Michael Simon for the lead.]

Issues of Religion Largely Absent From Second Day of Sotomayor Hearings

Yesterday, at the second day of hearings on the nomination of Judge Sonia Sotomayor as Associate Justice on the U.S. Supreme Court, religion, religious freedom and church-state issues received little attention either in questions posed to the nominee or in her answers. Don Byrd, who has been blogging live from the hearings, identifies three exchanges relating to religious issues. The full hearing transcripts are available via the Washington Post. Here are the relevant exchanges:

In questioning Sotomayor about her views on the Second Amendment, Sen. Orin Hatch asked: "OK. As I noted, the Supreme Court puts the Second Amendment in the same category as the First and the Fourth Amendments as pre-existing rights that the Constitution merely codified. Now, do you believe that the First Amendment rights, such as the right to freely exercise religion, the freedom of speech, or the freedom of the press, are fundamental rights?" To which Sotomayor replied: "Those rights have been incorporated against the states. The states must comply with them."

Sen. Lindsey Graham, expressing his concern about expansive interpretations of the Constitution said: "And that gets us to the speeches. That broad provision of the Constitution that's taken us from no written prohibition protecting the unborn, no written statement that you can't voluntarily pray in school, and on and on and on and on, and that's what drives us here, quite frankly.... [A] lot of us are concerned from the left and the right that unelected judges are very quick to change society in a way that's disturbing...."

Sen Diane Feinstein, asking about the overruling of precedent, referred to the Hein case that denied a taxpayer standing to challenge spending by President Bush's faith-based office. She said: "In a rare rebuke of his colleagues, Justice Scalia has sharply criticized Chief Justice Roberts and Justice Alito for effectively overruling the court's precedents without acknowledging that they were doing so. Scalia wrote in the Hein case ... 'Overruling prior precedent is a serious undertaking, and I understand the impulse to take a minimalist approach. But laying just claim to be honoring stare decisis requires more than beating a prior precedent to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive....'"

(See prior related posting.)

Evangelist Challenges University's Speech Policy

On Monday, a traveling Christian evangelist filed a federal lawsuit against Georgia Southern University, challenging its campus speech policy. The complaint (full text) in Bloedorn v. Grube, (SD GA, filed 7/13/2009), alleges that while the University has opened accessible areas on campus for outside speakers, it still requires application for a permit and reserves discretion to approve or disapprove any particular speaker. It also limits the length of the speaker's visit. Plaintiff Benjamin Bloedorn visits campuses 4 to 6 hours per day, for two or three days in a row to engage students in discussion about the existence of God and the teachings of Christianity. Bloedorn was arrested by a campus police officer after he insisted on speaking without applying for a permit. His lawsuit insists that the University's permit policy is an unconstitutional prior restraint on speech. Alliance Defense Fund announced the filing of the lawsuit.

Malaysian Police Investigate Reporter's Activities In Attending Mass Under False Pretenses

In Malaysia, where causing religious disharmony can be prosecuted as a crime, police are investigating two Muslim men who attended a Roman Catholic mass as part of an investigative article published in the Malay-language Al-Islam magazine. AP today reports that the article was intended to investigate rumors that Muslim teenagers were being converted to Christianity. The author found no evidence of this, but has created controversy by indicating in the article that he and a friend hid their Muslim identities when attending. They took communion and photographed their partially-eaten communion wafer. A police complaint was filed by a Catholic man, and Rev. Lawrence Andrew, the editor of the Catholic publication, the Herald, said the men had "insulted the Christians" by their actions.

Leahy To Introduce Hate Crimes Bill As Amendment To Defense Authorization Act

Sen. Patrick Leahy yesterday announced that he would introduce the Matthew Shepard Hate Crimes Prevention Act as a bipartisan amendment to the National Defense Authorization bill this week. Last year the Senate approved the measure as an amendment to the Defense Authorization Bill, but it was removed in conference after opposition from the Bush White House. (See prior posting.) The most controversial portion of the bill expands coverage of existing hate crimes legislation to cover crimes aimed at victims because of their sexual orientation, gender, gender identity or disability. It also expands the situations in which the federal government can prosecute hate crimes based on race, religion or national origin by eliminating the requirement that they involve certain federally protected activities. The bill also provides for federal assistance grants to state and local governments, allows the federal government to prosecute in certain cases where states have failed to do so, and expands the statistics on hate crimes that will be collected by the federal government. The House passed a similar hate crimes measure in April as a free-standing bill. (See prior posting.)

Issues of Religion Play Little Role In First Day of Sotomayor Hearings

Yesterday, the Senate Judiciary Committee held its first day of hearings on the nomination of Judge Sonia Sotomayor to the U.S. Supreme Court. The day began with opening statements from each member of the Committee. Then the Senators from Sotomayor's home state of New York (Sens. Schumer and Gillibrand) introduced the nominee. The day's hearings closed with Sotomayor's opening statement. Issues of religion, religious freedom and church-state were not particularly prominent. The Washington Post has published the full text of all the statements. Here are the only references in them issues of religion:

Sen. Patrick Leahy:

Those who break barriers often face the added burden of overcoming prejudice.... The confirmation of Justice Louis Brandeis, the first Jewish American to be nominated to the high court, was a struggle rife with anti-Semitism and charges that he was a "radical". The commentary at the time included questions about "the Jewish mind" and how "its operations are complicated by altruism." Likewise, the first Catholic nominee had to overcome the argument that "as a Catholic he would be dominated by the pope."

Sen. Jeff Sessions:

Do I want a judge that allows his or her social, political, or religious views to change the outcome? Or, do I want a judge that impartially applies the law to the facts, and fairly rules on the merits, without bias or prejudice?

Sen. Chuck Schumer (discussing cases Sotomayor has decided):

And she upheld the First Amendment right of a prisoner to wear religious beads under his uniform.

Sen. Benjamin Cardin:

My grandparents came to America more than 100 years ago. I am convinced that they came to America not only for greater economic opportunities, but because of the ideals expressed in our Constitution, especially the First Amendment guaranteeing religious freedom.

My grandparents wanted their children to grow up in a country where they would be able to practice their Jewish faith and fully participate in their community and government. My father, one of their sons, became a lawyer, state legislator, circuit court judge and President of his synagogue. And now his son serves in the U.S. Senate.

While our Founding Fathers made freedom of religion a priority, equal protection for all races took longer to achieve.... I remember with great sadness how discrimination was not only condoned but, more often than not, actually encouraged against Blacks, Jews, Catholics, and other minorities in the community. There were neighborhoods that my parents warned me to avoid for fear of my safety because I was Jewish. The local movie theater denied admission to African Americans. Community swimming pools had signs that said "No Jews, No Blacks Allowed." Even Baltimore's amusement parks and sports clubs were segregated by race.

Sen Dick Durbin:

Your mother worked two jobs so she could afford to send you and your brothers to Catholic schools, and you earned scholarships to Princeton and Yale.

Senator Kirsten Gillibrand's introduction of Sotomayor included a quote from Justice Scalia that he "grew up with people of all religious and ethnic backgrounds."

Judge Sotomayor in her opening statement made no mention of religion, religious freedom or church-state issues.

An opinion piece from today's Wall Street Journal asks: "Why was Samuel Alito's Catholicism so much more discussed than Sonia Sotomayor's?"

FCC Change In TV Rules Impacts Many Church Wireless Microphone Systems

According to an ABP report yesterday, many churches will be surprised to learn that they have been affected by the Federal Communications Commission's decision requiring television stations, as of June 12, to end analog broadcasts. As part of the conversion, all stations were required to move to channels 2 through 51-- something made possible by the improved efficiency of digital transmissions. That allowed the FCC to also reallocate the 700 MHz wireless spectrum that had previously been used primarily for UHF channels 52 through 69. The lower half of the 700 MHz band was auctioned off to various telecommunications companies, while the upper half was reserved for a public safety network to be used by law enforcement, fire and safety forces and municipalities. (Background from Wikipedia.)

The problem is that many church sound systems operate in the 700 MHz range. That means that there may well be interference in some locations. Also these churches are apparently acting illegally in continuing to operate their systems. As explained in a posting last year on Geeks&God, the FCC adopted rules in late 2008 to allow the unlicensed use of "white spaces" between TV stations below 698 MHz. (FCC News Release, Nov. 4, 2008). However as of Feb. 17, 2009, wireless microphones using higher frequencies were to cease operating. Manufacturers no longer sell wireless microphone systems in the 700 MHz range and they offer discounts to churches that trade in their old systems for new ones in permitted ranges.

Groups Oppose Expansion of Virginia Islamic Saudi Academy

The Fairfax County, Virginia Board of Supervisors held a public hearing yesterday on the proposed expansion of the campus of the Islamic Saudi Academy. The controversial college and preparatory school has close ties with the Saudi government. Fox News reported yesterday that a coalition of around ten groups oppose the expansion. The spokesman for one of those groups, James Lafferty, chairman of the Virginia Anti-Shariah Task Force (VAST), says as to his group's opposition: "We're opposed to the operation of the Islamic Saudi Academy because it teaches and practices Shariah law. Shariah law is anti-constitutional and we feel that it is the ultimate improper land use here in the state where the Constitution was created." Others object because one of the Academy's graduates was convicted of joining Al Qaeda and plotting to assassinate President Bush, while another was arrested for boarding a plane carrying a kitchen knife. (See prior related posting.)

Lawsuit In Egypt Seeks To Rescind Prize Given To Controversial Writer

In Egypt, supporters of the Muslim Brotherhood have filed a lawsuit seeking to have the Ministry of Culture's State Award of Merit in Social Sciences withdrawn from author Sayed al-Qimni. Al Arabiya today reports that opponents object that: "His works deride Islam and he is skeptical about the message of Prophet Mohamed." Lawyer Nabih al-Wahsh who filed the suit has also called for impeachment of the Minister of Culture Farouk Hosni for approving the choice of Qimni. Previously a court ruled against attempts to ban Qimni's book Rab Haza al-Zaman (A God of this Age) by those who claimed it contained apostasy. Quimni has argued that Islam is a political system rather than a religion.

Russian Orthodox Church Gets New Power To Preview Duma Legislation

The Moscow Times reported last week that the Russian Orthodox Church will now be consulted in advance by United Russia deputies in the lower house of legislature so it can preview all legislation that will be considered by the State Duma. The agreement came after Russian Orthodox Patriarch Kirill conferred with two senior United Russia deputies over the Duma's ratification in May of the European Social Charter. Approval was required as part of Russia's membership in the Council of Europe. Krill objects to interpretations of provisions in the document that require public schools to offer sex education and require the creation of juvenile justice systems aimed at deterring youth from committing crimes. (Case Law Fact Sheet). Krill believes that parents, not the government, should be responsible for sex education and for discipline of their children.

World Football Regulator Warns Brazil's Team Over Religious Slogans On T-Shirts

FIFA, world football's governing body, has sent a warning letter to the Brazilian football federation after their players wore T-shirts with Christian slogans during the finals of the Confederations Cup last month. Apparently the T-shirts were under their jerseys, and were displayed after the game in victory photos. Yesterday's London Mail reports that most members of the Brazilian team are Pentecostalists with strong Christian beliefs. FIFA's Laws of the Game set out an interpretation of Law 4:

Players must not reveal undergarments showing slogans or advertising. The basic compulsory equipment must not have any political, religious or personal statements. A player removing his jersey or shirt to reveal slogans or advertising will be sanctioned by the competition organiser. The team of a player whose basic compulsory equipment has political, religious or personal slogans or statements will be sanctioned by the competition organiser or by FIFA.

[Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Amos N. Guiora, Religious Extremism: A Fundamental Danger, (South Texas Law Review, Vol. 50, No. 743, 2009).

From SmartCILP and elsewhere;

• Casey Luskin, Does Challenging Darwin Create Constitutional Jeopardy? A Comprehensive Survey of Case Law Regarding the teaching of Biological Origins, 32 Hamline Law Review 1 (2009).
• Don Ellinghausen, Jr., "In Standing Is the Preservation of His World": Justice Scalia and the Varieties of Natural-Religious Experience, 16 Missouri Environmental Law & Policy Review 474-520 (2009).
• Kent Greenawalt, The Rule of Law and the Exemption Strategy, 30 Cardozo Law Review 1513-1534 (2009); Marci A. Hamilton, A Response to Professor Greenawalt, 30 Cardozo Law Review 1535-1543 (2009).
• Andrew P. Morriss & Benjamin D. Cramer, Disestablishing Environmentalism, 39 Environmental Law 309-396 (2009).
• David M. Smolin, The Civil War As a War of Religion: A Cautionary Tale of Enslavement and Emancipation, 39 Cumberland Law Review 187-237 (2008-2009).
• Manisuli Ssenyonjo, Limits On the Freedom To Manifest One's Religion In Educational Institutions in Uganda and the United Kingdom [Abstract], 7 I.Con: International Journal of Constitutional Law 275-305 (2009).
• Religion in the Workplace. [Full text of all articles.] Foreword by Fouad A. Riad; articles by Kenneth D. Wald, Lorne Sossin, Francois Gaudu, Achim Seifert, Nurhan Sural, Mark Freedland, Lucy Vickers and William W. Van Alstyne; afterword by Alain Supiot. 30 Comparative Labor Law & Policy Journal 465-653 (2009).

Catholic Chaplains Complain About California's Proposed Lethal Injection Protocol

On June 30, the California Department of Rehabilitation and Corrections held a hearing on its Proposed Regulations on lethal injections (full text). Executions in California were suspended in 2006 after a federal district court in Morales v. Hickman raised questions about whether California's protocol for executions created too great a risk of extreme pain. Media coverage immediately after the June DRC hearings indicated that much of the testimony focused on broad opposition to capital punishment. (Los Angeles Times.) However on Friday, Tidings carried an article outlining a narrower objection to the proposed new regulations raised by Catholic prison chaplains.

The proposed regulations require that 45 days before execution:

3349.3.1(e) The Chaplain shall:
(1) Interview the inmate to assess the inmate’s spiritual and emotional well-being.
(2) Determine the inmate’s religious preferences and needs, next of kin, funeral or other requests, attitudes or thoughts on death and dying, and note any observations regarding the inmate’s emotional stability such as acceptance of the sentence of death.
(3) Formulate these observations into a written report and submit it to the Warden within sufficient time to meet the Warden’s 20-day report deadline.

Then ten days before execution:

3349.3.3(f) The Chaplain shall deliver a written report to the Warden regarding the emotional state of mind of the inmate. These observations shall be limited to contacts made within three days preceding preparation of the report.

Chaplains are concerned that these requirement may call for them to reveal information received in confidence from the prisoner which currently is protected by the clergy-penitent privilege.

Rights Group Says Arrest By Saudi Religious Police Led To Honor Killing

In Saudi Arabia, the Society for Defending Women’s Rights says that the country's religious police, the Commission for the Promotion of Virtue and Prevention of Vice, are ultimately responsible for the "honor killing" of two sisters by their brother. Qatar's The Peninsula reported yesterday that Society claimed religious police sparked the anger of the women's brother by arresting the women, ages 19 and 21, for mixing with unrelated males. Police put them in a Riyadh women's shelter. Their brother shot them, in the presence of their father, when the left the shelter on July 5. The Society called for the government to charge the brother with murder, and also to bring charges against the religious police involved in the case.

British House of Lords Keeps Free Speech Defense To Inciting Hatred Against Gays

In Britain last Thursday, the House of Lords, by a vote of 186-133, deleted from the proposed Coroners and Justice Bill section 61 which would have done away with a statutory free speech defense to the crime of inciting homophobic hatred. The defense is found in the Criminal Justice and Immigration Act 2008 which outlaws inciting hatred on the ground of sexual orientation, but goes on to provide:

In this Part, for the avoidance of doubt, the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred.

The Labour government had proposed elimination of the defense, but Lord Waddington, former Conservative party Home Secretary, proposed an amendment to retain it which was the subject of Thursday's vote. The House of Lords has posted the full text of the debate on the amendment. The Independent and BBC News both reported on the House of Lords action.

Recent Prisoner Free Exercise Cases

In Isom v. Lowe, 2009 U.S. Dist. LEXIS 56922 (MD PA, July 6, 2009), a Pennsylvania federal district court held that prison officials were justified in taking a Muslim prisoner off the "Common Fare" diet after it was found that he was purchasing and consuming regular items from the Commissary that do not comply with the "Common Fare" diet.

In Riley v. Doe, 2009 U.S. Dist. LEXIS 56406 (MD TN, July 2, 2009), a Tennessee federal district court rejected a complaint that prisoners of the Christian Identity faith are not permitted to meet for group worship. The denial stemmed merely from the mistaken belief by the prison director of religious services that Christian Identity was classified as a Security Threat Group.

In Miska v. Middle River Regional Jail, 2009 U.S. Dist. LEXIS 56661 (WD VA, July 2, 2009), a Virginia federal district court rejected an inmate's complaint that his free exercise rights were violated when he was prevented from attending Communion and Confession one time while in segregated confinement.

In Caldwell v. Folino, 2009 U.S. Dist. LEXIS 56838 (WD PA, July 1, 2009), a Pennsylvania federal magistrate judge concluded that an inmate's free exercise rights were not violated when corrections officers searched his medicine bag and made disparaging comments about its contents.

In Mayo v. Briggs, 2009 U.S. Dist. LEXIS 57378 (ED VA, July 6, 2009), a Virginia federal district court adopted a magistrate's recommendations and dismissed an inmate's lawsuit for damages and a change in the jail's policy. Plaintiff claimed that authorities refused to permit him to attend Muslim Jumah services. The refusal was based on plaintiff's identifying himself as Christian, not Muslim, when he arrived at the jail.

In Mayne v. State, 2009 U.S. Dist. LEXIS 57678 (D NJ, July 7, 2009), a New Jersey federal district court permitted plaintiff to proceed with his complaint that while under house arrest and electronic monitoring, his parole officer refused to permit him to attend Catholic religious services.

In Thomas v. Little, 2009 U.S. Dist. LEXIS 57568 (WD TN, July 6, 2009), a Tennessee federal district court dismissed claims by an inmate that his free exercise rights, and his rights under RLUIPA were infringed by prison policy that allows Muslim inmates to buy prayer oil only from a single approved supplier.

In Anderson v. Harron, 2009 U.S. Dist. LEXIS 57986 (D NJ, July 7, 2009), a New Jersey federal district court rejected an inmate's complaint that his rights under the 1st Amendment and RLUIPA were infringed when he was temporarily removed from the jail's Ramadan meal program. The court also rejected his complaint that the jail did not facilitate weekly group Jumah prayers among the Muslim prisoners.

Group Presses 2 California Cities To End Sectarian Invocations

The Freedom from Religion Foundation continues to demand that city councils across the country end the practice of opening their sessions with sectarian Christian prayer. Two California cities-- Tracy and Lodi-- are currently among its targets. The Tracy Press on Friday editorialized:

Tracy's prayer policy may be inclusive in its intentions, but it's exclusive in its practice of rotating only those religious leaders (all Christian, like the council) who have come forth to offer invocations. It makes political outsiders of those constituents who don't share religious beliefs.

Meanwhile the LA Church and State Examiner reports that Lodi City Council will consider a resolution next month to require that invocations be non-sectarian. However Navy Chaplain Gordon James Klingenschmitt's "Pray in Jesus' Name Project" that favors Lodi's existing policy plans a prayer vigil at city hall on August 5, the scheduled date of the City Council vote.

Nominee To Head NIH Is Strong Advocate For Compatibilibty of Science and Faith

This past Wednesday, the White House announced the nomination of renowned geneticist Dr. Francis S. Collins to head the National Institutes of Health. Collins headed the NIH's Human Genome Project. Yesterday and today, articles in the Wall Street Journal and AlterNet focus on another part of Collins' biography-- his strong advocacy for the position that science (including evolutionary theory) and religious faith are compatible. In 2006, Collins authored a book titled The Language of God: A Scientist Presents Evidence for Belief. Francis has also founded the BioLogos Foundation, which describes its mission as follows:

BioLogos represents the harmony of science and faith. It addresses the central themes of science and religion and emphasizes the compatibility of Christian faith with scientific discoveries about the origins of the universe and life

BioLogos' press release on Collins' nomination says that if he is confirmed, his leadership role at BioLogos will be assumed by Drs. Darrel Falk and Karl Giberson.

UPDATE: The Senate confirmed Collins by voice vote on Aug. 7. (Fresno Bee.)

Summum's Challenge To Duchesne City Dismissed After Case Was Mooted

Last March, after the U.S. Supreme Court decided in Pleasant Grove City v. Summum that a Utah city need not accept a "Seven Aphorisms" monument for a local park where a 10 Commandments monument already stood, it remanded to the lower courts a more complicated companion case, Summum v. Duchesne City. (See prior posting.) The city responded by moving the 10 Commandments monument to a city cemetery, which Summum saw as essentially mooting the case. (See prior posting.) According to yesterday's Salt Lake Tribune, a Utah federal district court has now formally dismissed the lawsuit on Summum's motion to dismiss.

Ireland Passes New Blasphemy Law, Reducing Penalties for Violation

This week, Ireland's parliament, the Oireachtas, passed the Defamation Act 2009 to replace the Defamation Act 1961. Section 36 of the new law imposes a fine of up to 25,000 Euros on anyone who publishes or utters blasphemous matter. In defining the offense, the new law provides:

(2) For the purposes of this section, a person publishes or utters blasphemous matter if—
(a) he or she publishes or utters 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
(b) he or she intends, by the publication or utterance of the matter concerned, to cause such outrage.

(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that a reasonable person would find genuine literary, artistic, political, scientific, or academic value in the matter to which the offence relates.

(4) In this section "religion" does not include an organisation or cult—
(a) the principal object of which is the making of profit, or
(b) that employs oppressive psychological manipulation— (i) of its followers, or
(ii) for the purpose of gaining new followers.

Ireland's Constitution (Art. 40) requires that the country have a law banning blasphemy. the new law substantially reduces the penalty for the offence from that in the 1961 Defamation Act (Sec. 13) that provides a fine and up to 7 years in prison for blasphemy. Reuters reported yesterday that atheists say they will quickly test the new law. They claim it is discriminatory by protecting only religious beliefs.

Arizona Governor Signs Students' Religious Liberties Act

On July 10, Arizona Gov. Jan Brewer signed HB 2357, the Students' Religious Liberties Act. It bars public schools from discriminating against parents or students on the basis of religious viewpoints or expression, including religious viewpoints included in class assignments, artwork or coursework. It provides that students may pray or engage in religious activities or expression before, during and after the school day in the same manner that students are allowed to engage in nonreligious expression or activities.

Students are permitted to wear clothing that displays a religious message, or religious jewelry, to the same extent that clothing or jewelry with other messages or symbols is allowed. The law specifically, though, permits banning of clothing and accessories denoting criminal street gang affiliation. The new law goes on to provide that it shall not be interpreted to require any student to participate in prayer or other religious activity, or to otherwise violate a student's constitutional rights. Finally it requires exhaustion of internal administrative complaint procedures before a parent or student may bring a lawsuit to enforce the provisions of the statute. AP reported on the signing of the bill.