Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Saturday, July 25, 2009
3rd Circuit Says RLUIPA Zoning Challenge Is Not Ripe
Friday, July 24, 2009
4th Circuit Says Warden Has Qualified Immunity In Demotion of Rastafarian Officer
Saskatchewan Court Says Marriage Commissioner May Not Refuse To Perform Gay Weddings
M.J. and other members of the public do not have to depend upon encountering a marriage commissioner who has no moral or religious objection to performing a same sex marriage in order to gain access to an entitlement to be married without discrimination. Regardless of the religious basis of Mr. Nichols’ views, his acting on them in this manner constitutes discrimination in the provision of a public service on the basis of sexual orientation. Any accommodation of Mr. Nichols’ religious views, if the duty to accommodate exists, is not the responsibility of those who seek the services that he is legally empowered to provide. If any accommodation is due to Mr. Nichols for his religious views, it must be accomplished without risking what occurred here – where the complainant sought a service and was expressly denied it on the basis of his sexual orientation....Reporting on the decision, the Regina (SK) Leader-Post says that provincial officials will still move ahead with plans to obtain a Court of Appeal ruling on the constitutionality of a proposed law that would exempt marriage commissioners from performing same-sex marriages if they object to doing so for religious reasons. (See prior related posting.)
I am sympathetic to the argument that a public official acting as government is at the same time an individual whose religious views demand respect. However, a public official has a far greater duty to ensure that s/he respects the law and the rule of law. A marriage commissioner is, to the public, a representative of the state. She or he is expected by the public to enforce, observe and honour the laws binding his or her actions. If a marriage commissioner cannot do that, she or he cannot hold that position.
Religious Objections To USDA's Animal Tagging Program Rejected
All but one of the plaintiffs live in Michigan and the lawsuit focused on Michigan's adoption of NAIS as a means of combating tuberculosis in cattle. The court dismissed claims against the U.S. Department of Agriculture because plaintiffs' alleged injuries stemmed from the independent decision of the Michigan Department of Agriculture (MDA) to adopt the program, and not from action by the USDA. It dismissed claims under RFRA and NEPA against the MDA, because neither of those federal statutes apply to states. It dismissed claims that MDA failed to comply with state law on 11th Amendment grounds, and rejected supplemental jurisdiction over three state law claims. AP reported on the decision. (See prior related posting.)
Court Says It Can Apply Neutral Principles To Fiduciary Claim Against Church Trustees
Nigeria Begins New Push To Tax Unrelated Income of Religious Groups
Utah Court Rejects Settlement In FLDS Trust Reform; Texas Custody Case Ends
Meanwhile, in a separate case, the state of Texas ended state custody of the last of the 439 children who been taken by child welfare officials from the FLDS' Yearning for Zion Ranch in 2008. (See prior posting.) Yesterday's Salt Lake Tribune reports that the girl, now 15, was placed with her aunt, and the girl's mother, Barbara Jessop, was given the right to supervised visits. Allegedly the girl was spiritually married to former FLDS leader Warren Jeffs when she was 12.
Oregon Jury Acquits Faith Healing Parents On All But One Misdemeanor Charge
Nurse Sues Hospital Claiming She Was Required To Assist In Abortion Procedure
Thursday, July 23, 2009
5 Rabbis Among 44 Arrested In New Jersey Public Corruption and Money Laundering Probe
The mayors of Hoboken, Secaucus and Ridgefield, the Jersey City deputy mayor and council president, two state assemblymen, numerous other public officials and political figures and five rabbis from New York and New Jersey were among 44 individuals charged today in a two-track federal investigation of public corruption and a high-volume, international money laundering conspiracy.According to the Newark Star-Ledger, the rabbis arrested were connected to the prosperous and close-knit Syrian Jewish community of Brooklyn (NY) and Deal (NJ). (The Syrian Jewish community was profiled in a 2007 New York Times Magazine article.) Today's press release summarized charges against the rabbis:
Eliahu Ben Haim, of Long Branch, N.J., the principal rabbi of a synagogue in Deal, N.J., charged with money laundering of proceeds derived from criminal activity.It went on to describe the money laundering portion of the charges as follows:
Saul Kassin, of Brooklyn, N.Y., the chief rabbi of a synagogue in Brooklyn, New York, charged with money laundering of proceeds derived from criminal activity.
Edmund Nahum, of Deal, N.J., the principal rabbi of a synagogue in Deal, charged with money laundering of proceeds derived from criminal activity.
Mordchai Fish, of Brooklyn, N.Y., a rabbi at a synagogue in Brooklyn, charged with money laundering of proceeds derived from criminal activity. His brother [Lavel Schwartz], also a rabbi, was charged as well.
The money laundering conspiracy involved high-ranking religious figures and their associates in Brooklyn, N.Y. and Deal, N.J. Among them was Eliahu Ben Haim, of Long Branch, N.J., the principal rabbi of Congregation Ohel Yaacob in Deal, N.J. Typically ... Haim received bank checks in amounts ranging from tens of thousands of dollars up to $160,000 at a time made payable to a charitable, tax-exempt organization associated with Haim and his synagogue. To complete the money laundering cycle, Haim would return the amount of the check in cash ..., less a cut for Haim, typically 10 percent....The release emphasized the importance in the investigation of a cooperating witness who infiltrated the money laundering network and later dealt with various public officials who are being charged with bribery. The Wall Street Journal says that the cooperating witness is Orthodox Jewish real estate developer Solomon Dwek who had been arrested on bank-fraud charges in 2006. The FBI began using Mr. Dwek as an informant in mid-2007, wiring him and videotaping his encounters with targets of the investigation.
Similar circles of money launderers in Brooklyn and Deal, N.J. operated separately but occasionally co-mingled activities and participants. In most cases, the rings were led by rabbis who used charitable, non-profit entities connected to their synagogues to "wash" money that they understood came from criminal activity like bank fraud, counterfeit goods and other illegal sources.... [T]he rabbis made significant sums in fees, which typically ran between five and ten percent per transaction.
Court Refuses To Strike Allegation In School Music Lawsuit
Questions Raised Over Financing Of Rep. Keith Ellison's Hajj Trip
India's Supreme Court Withdraws Opinion On Catholic School's Grooming Policy
County Will End Ban On Sunday Sales Despite Some Religious Objections
Sikh Crime Victims In London Can Now Request Sikh Officer For Case
Buddhist Candidate For Virginia Legislature Responds To Concerns
[F]or the last decade or more, like millions of Americans, I have practiced meditation. Sometimes I walk and sometimes I sit. But always, taking a break from daily activity helps me think about my life and connect with a deeper truth. With increasing scientific evidence for the benefits of meditation to calm the stress of today’s busy world, it’s no wonder that this simple practice has spread to corporate boardrooms, hospitals, schools, and even churches across the United States.
It is understandable that people are curious about and may even fear things that they do not understand. So it is a service to civil discourse for people of different faiths to share their beliefs and practices in a spirit of mutual respect and tolerance. Recognizing that all major religions teach the same basic ideas –to seek truth, promote love, and care for God’s creation — faith can be a way to bring us all together on a higher plane.
But all too often religion is used by misguided leaders to pull our communities apart and to sow the seeds of discord. This is a misuse of religious faith in my opinion, and I feel compelled to speak out against religious prejudice and bigotry.
So, to those who would court intolerance for political gain, I say: in America, you will lose. In Virginia, you will lose. And in the Shenandoah Valley and Highland County, you will lose.
Anti-Separationist Billboards Placed In Two Florida Counties
Wednesday, July 22, 2009
PA Supreme Court: Civil Courts Can Hear Defamation Claim Against Catholic School
[W]hile appellees explain ... that "[t]he communication of the expulsion provided example of the religious values of the [S]chool to parent and student alike" ..., appellees do not contend that such religious rationale for the Post-expulsion Communications required that the Communications specifically allege that Eric brought a "penknife" or "weapon" to school. Thus, this is not a case in which religious authority would be directly relevant to a party’s showing on the merits of his or her opponent’s claims.... [N]eutral principles can be applied to determine whether the Post-expulsion Communications were defamatory.
Wisconsin Supreme Court: Ministerial Exception Applies To Catholic School Teacher
We conclude that both the Free Exercise Clause of the First Amendment ... and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims ... for employees whose positions are important and closely linked to the religious mission of a religious organization.... Ostlund's school was committed to a religious mission——the inculcation of the Catholic faith and worldview—— and Ostlund's position was important and closely linked to that mission. Therefore, Ostlund's age discrimination claim underthe WFEA unconstitutionally impinges upon her employer's right to religious freedom.Justice Crooks dissenting opinion argued:
the majority's conclusion that based on the facts here CCS infuses its secular subjects with religion effectively extends a free pass to religious schools to discriminate against their lay employees....Yesterday's Chicago Tribune reports on the decision.
ACLU Has Taxpayer Standing To Challenge Charter School As Promoting Islam
Kentucky County Removes 10 Commandments After Lawsuit Is Filed
Kenya Says Muslim Girls Can Wear Hijab To School
Non-Muslims Find British Shariah Courts Attractive
Russian Schools Will Begin Courses On Religions and Ethics
Tuesday, July 21, 2009
Laotian Village Chief Tells Christian Families To Renounce Their Beliefs
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
Protests Continue Over LDS Regulation Of Plaza In Salt Lake City
Opponents of Hate Crimes Bill Add Amendments That Make It More Contentious
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.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.
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.
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
Members of Congress Join In Rally To Protest Falun Gong Persecution By China
Obama Meets At White House With Mormon Leader
Monday, July 20, 2009
Israeli Court Awards Damages To Bedouin Family Excluded From Swimming Pool
Competing Lawsuits Filed In Dispute Over Religious Services At Co-op Unit
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
- 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
Iranian Singer Sentenced In Abstentia To 5 Years For Recording of Quranic Verses
Consent Order Entered In Challenge To City's Speech Ordinance
Sunday, July 19, 2009
Recent Prisoner Free Exercise Cases
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.
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
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
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
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.
Saturday, July 18, 2009
2nd Circuit: Muslim Scholar Gets Chance To Challenge Visa Denial
British Police Can Obtain Accommodation for Pagan Holidays
Hawaiian Church Sued Over Construction On Former Cemetery Site
3rd Circuit: Trial Court Properly Refused To Interfere In State Civil Rights Probe
Friday, July 17, 2009
US Military Trains Afghan Army To Show Its Muslim Face To Locals
8th Circuit Upholds School's Literature Distribution Policy
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
State Agency Removes Website Links To "Open and Affirming" Churches
Washington Supreme Court Finds Permit Moratorium Violated Church's Rights
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
South Africa's Business Day reported on the decision.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.
Senate Passes Hate Crimes Bill As Amendment To Defense Authorization Act
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--Section 10 of the Hate Crimes Prevention Act also contains other provisions on construction of the Act and free expression.
(1) plan or prepare for an act of physical violence; or
(2) incite an imminent act of physical violence against another.
Thursday, July 16, 2009
Article Profiles Activities of Child Evangelism Fellowship
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
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
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.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.
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.
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
Suit Charges Military Contractor With Refusing To Accommodate Wearing of Hijab
Wednesday, July 15, 2009
Court Upholds University's Facilities Use Policy
Lawsuit Challenges Congress' Decision To Add Motto and Pledge To Capitol Visitor Center
Court Enjoins Community College's Sexual Harassment Policy As Overbroad
Senate Appropriations Bill Has Security Funds For Non-Profits; Extends Religious Worker Program
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
Texas Board of Education Panel Splits On Role of Religion In History Curriculum
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.][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.
Issues of Religion Largely Absent From Second Day of Sotomayor Hearings
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.)