Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Monday, August 10, 2009
"In God We Trust" Proposal Withdrawn By City Commission In Florida
Activists Force Syrian Government To Shelve Proposed Personal Status Law
Senate Rejects Charitable Donation of "Clunkers" In Extending Program
Recent Articles of Interest
- William A. Wooten, The Coach’s Pre-Game Prayer: Probably Wrong But Feels Right, (August 3, 2009).
- Thomas Charles Berg, Lemon v. Kurtzman: The Parochial-School Crisis and the Establishment Clause, (in Law and Religion Cases in Context, Leslie Griffin ed., Aspen Publishers, Forthcoming).
- Scott M. Noveck, The Promise and Problems of Treating Religious Freedom as Freedom of Association, (May 12, 2009).
- Carl H. Esbeck, Why the Supreme Court has Fashioned Rules of Standing Unique to the Establishment Clause, (Engage, Vol. 10, p.115, October 2009).
- Barbara P. Billauer, First Things, First - In the Creation of the Universe: A Conciliatory Translation of Genesis, (August 4, 2009).
- Leslie C. Griffin, Review Essay, (Journal of Law and Religion, Vol. 25, 2009).
From SmartCILP:
- Federalist Society's Church Autonomy Conference: "The Things that are Not Caesar's: Religious Organizations as a Check on the Authoritarian Pretentions of the State." Articles by Patrick McKinley Brennan, Carl H. Esbeck, Nicholas Wolterstorff, Ira C. Lupu, Robert W. Tuttle, Thomas C. Berg, Michael P. Moreland, John H. Mansfield & Douglas Laycock. 7 Georgetown Journal of Law & Public Policy 29-278 (2009). [Video of conference presentations from Federalist Society website.]
Sunday, August 09, 2009
Recent Prisoner Religion and Free Exercise Cases
In Yaacov v. Collins, 2009 U.S. Dist. LEXIS 66479 (ND OH, July 31, 2009), an Ohio federal magistrate judge upheld a former prison policy that limited kosher meals to inmates who registered as Jewish when they entered the prison.
In Sokolsky v. Voss, 2009 U.S. Dist. LEXIS 67070 (ED CA, July 24, 2009), a California federal district court allowed a Jewish inmate to move ahead with his damage claim against officials (but only in their individual capacities) of a mental hospital to which he had been criminally committed. Plaintiff alleged that his rights under RLUIPA were infringed when during Passover he was furnished standard, rather than kosher-for-Passover, meals. He also claimed that he was subjected to discipline when he complained about the matter. In the lawsuit, plaintff seeks compensatory damages of $1 million and punitive damages of $4 million.
In Kaiser v. Shipman, 2009 U.S. Dist. LEXIS 67596 (ND FL, Aug. 4, 2009), a Florida federal magistrate judge recommended summary judgment for defendant in an inmate's challenge to prison regulations that allegedly interfered with his religious practices as an eclectic pagan. Plaintiff had claimed that denying him permission to possess tarot cards, runes, and an altar cloth or, alternatively, supervised access in the chapel at night to these items violated his rights under the 1st Amendment and RLUIPA. He also claimed equal protection violations because other inmates could possess secular items (playing cards and Scrabble tiles) and religious articles (Islamic prayer rugs) that were similar to the items he wanted.
In Aguirre v. Corrections Corporation of America, 2009 U.S. Dist. LEXIS 67771 (ND OH, June 5, 2009), an Ohio federal magistrate judge recommended dismissal for failure to exhaust administrative remedies objections by an inmate who changed his religious preference from Catholic to Jewish that he had not been allowed to participate in the kosher meal program or Jewish holidays.
In Boles v. Bartruff, (CO Ct. App., Aug. 6, 2009), a Colorado Court of Appeals in a 2-1 decision rejected a claim by a Jewish prisoner that he was denied due process at a disciplinary hearing when he was not allowed to question the complaining officer about her alleged anti-Semitism.
Christians- Muslims Disagree Over Kadhi Proposal For Kenyan Constitution
Paper Profiles Principal Facing Contempt Charges Over Prayer
Saturday, August 08, 2009
Obama Nominations for 3rd and 6th Circuits: What Do We Know of Their Views On Religion Issues?
Federal district judge Thomas I. Vanaskie has been nominated for a vacancy on the 3rd Circuit. As a district judge since 1994 (chief judge since 1999) for the Middle District of Pennsylvania, he has written several opinions dealing with free exercise issues.
- The most important is Black Hawk v. Commonwealth of Pennsylvania, (2002), in which he held that a Native American holy man's free exercise rights were violated when Pennsylvania refused to grant him an exemption from a permit fee requirement for two black bears he kept. The bears were used by Dennis Black Hawk to perform religious ceremonies. The decision was affirmed by the 3rd Circuit, in an opinion (full text) written by now Supreme Court Justice Samuel Alito who at that time was a judge on the 3rd Circuit. In 2000, Vanaskie also wrote the opinion (full text) granting a preliminary injunction in the Black Hawk case.
- Williams v. Myers, (2000), [LEXIS link], rejecting an inmate's claim that he was denied parole for refusing to attend a religious-based drug and alcohol treatment program;
- Shahin v. College Misericordia, (2006) [LEXIS link], finding that Muslim faculty member failed to show religious or national origin discrimination in Title VII case;
- Khouzam v. Hogan, (2008), holding that an Egyptian Coptic Christian should have been given an opportunity to challenge Egypt's assurance that he would not be tortured if he was returned to Egypt where he had been convicted in abstentia of murder. The decision was vacated by the 3rd Circuit (full text of opinion) which agreed with the substance of Vanaskie's findings but disagreed with the remedy he granted; and
- Smith v. Kyler, (2008), [LEXIS link], rejecting a prisoner's claim under the constitution and RLUIPA that the prison should have furnished Rastafarian prisoners a weekly group prayer service led by a prayer leader. The decision was affirmed by the 3rd Circuit (full text of opinion).
Friday, August 07, 2009
11th Circuit Remands Asylum Case For Further Findings on Religious Persecution
A denial of review will return the petitioner to the theocratic regime in Iran, but an erroneous grant of review could establish a precedent that rewards less than genuine fears of persecution based on religious conversion. ... The right course between the threats of Scylla and Charybdis is for the Board to reconsider the record, which contains important evidence that the Board failed to mention.... There is evidence that the law against apostasy is not often enforced in Iran, but neither the Board nor the Immigration Judge considered Kazemzadeh's testimony that Iranians who convert from Islam to Christianity avoid punishment by instead suffering persecution by practicing underground.Judge Marcus concurred, but also wrote a separate opinion stressing, among other things, that "it is legal error to deny asylum on the basis of well-founded fear of religious persecution on the theory that an individual may escape discovery by abandoning his faith or hiding it and practicing his religion underground."
Judge Edenfield dissented on the religious persecution issue, arguing that having to practice religion underground to avoid punishment should not be seen as a form of persecution. He went on to conclude that the Board of Immigration Appeal acted reasonably in concluding that appellant had failed to demonstrate a pattern or practice of persecution against Christian converts in Iran. Finally he urged that on remand the Board of Immigration Appeals make a credibility determination as to the issue of the genuineness of appellant's conversion. Volokh Conspiracy discusses this latter point more fully. [Thanks to Alliance Alert for the lead.]
Feelings Run High Over Lodi CA Prayer Policy
County Wants Return of Settlement From Church of Universal Love and Music
UPDATE: The Pittsburgh Tribune-Review reports that on Friday the court denied Fayette County's request for a temporary restraining order after church founder William Pritts agreed to not hold any events at the church over the weekend. The court set a hearing on a preliminary injunction for Thursday.
UPDATE 2: On Aug. 13, the federal district court issued a temporary injunction barring the church from holding any events that involve amplified music until a hearing on a permanent injunction is held in several months. (Pittsburgh Post-Gazette, 8/13).
Conservative Rabbi Sues Challenging Georgia's Kosher Food Labeling Act
Harvard Dean, Expert on Religion and Pluralism, Nominated for LSC Board
Iowa Bus System Removes Atheist Ads After Complaints Received
UPDATE: The Des Moines Register reported Friday that DART has decided to put the ads back up, and to update its advertising policies to make clear that only ads that are obscene or profane will be banned.
Thursday, August 06, 2009
Korea's Constitutional Court Upholds Ban on Columbaria Near Schools
Court Permits Forfeiture Of Dinosaur Adventure Land Properties For Taxes Due
Suit Claims Free Exercise Right For Parochial School Student To Be In Public School Band
Suit Charges Jewish Majority On School Board With Establishment Clause Violations
Wednesday, August 05, 2009
Criminal Contempt Charges Unsealed In Santa Rosa School Prayer Case
AT&T Pays $1.3 M In Religious Discrimination Case
Sudanese Woman Reporter Challenging Sharia Indecency Punishment
Minister Sentenced On Tax and Bank Fraud Charges
Pro-Life Group Gets Non-Profit Status After IRS Questions
Tuesday, August 04, 2009
En Banc Rehearing Sought In Washinton State Pharmacy Board Conscience Case
IRS Proposes Rules To Clarify Who May Authorize Church Audit
UPDATE: Here is the full text of the proposal from the Aug. 5 Federal Register.
Virginia Saudi Academy Gets Zoning Exemption
Rabbi Pleads Guilty In Charitable Tax Fraud Scheme
Federal Magistrate Rejects Free Exercise Challenge To Marijuana Laws
Israeli Gays Say Orthodox Created Culture That Led To Shooting Last Week
Jewish School's Appeal Will Be One of the First In Britain's New Supreme Court
New Iqbal Pleading Standard Leads To Dismissal of Part of School-Music Lawsuit
Russian Supreme Court Bans Radical Islamic Group
Monday, August 03, 2009
USCIRF Writes Clinton Urging Her To Raise Religious Freedom Issues In Africa
Italy Approves Use of RU-486 Amidst Threats of Excommunications
Drug Raid On Church of Universal Love and Music Leads to 22 Arrests
UPDATE: Monday's Pittsburgh Tribune-Review has a more detailed story, indicating that 23 people were arraigned overnight Saturday as a result of the raid. It reports that the raid "resulted in ... the seizure of enough marijuana, hash brownies, hallucinogenic mushrooms, LSD, laughing gas and drug paraphernalia to pack two storage trailers with a capacity of about 3,000 pounds."
Court Says Atheists Challenging School Program May Not Proceed Anonymously
Recent Articles of Interest
- Anthony Bessette, Regulating and Punishing Adultery in Korea and East Asia, (July 27, 2009).
- Nomi Maya Stolzenberg, Board of Education of Kiryas Joel Village School District v. Grumet: A Religious Group's Quest for its Own Public School, (Law and Religion: Cases In Context, Gregory Alexander & Eduardo Penalver, eds., Aspen, 2010).
- Andrew M.M. Koppelman, Religious Establishment and Autonomy, (Constitutional Commentary, Vol. 25, 2009).
- Frederick Mark Gedicks, American Civil Religion: An Idea Whose Time Is Past, (March 2009).
- Zhong Zewei, Racial and Religious Hate Speech in Singapore: Reclaiming the Victim's Perspective, (Singapore Law Review, 2009).
From SmartCILP and elsewhere:
- Karima Bennoune, Toward a More "Courageous Politics" At the 60th Anniversary of the UDHR: Talking About Muslim Fundamentalism in the West, 24 Maryland Journal of International Law 125-134 (2009).
- Ayelet Blecher-Prigat & Benjamin Shmueli, The Interplay Between Tort Law and Religious Family Law: The Israeli Case, 26 Arizona Journal of International & Comparative Law 279-301 (2009).
- Daniel J. H. Greenwood, Faith Based Investing: Are Shares Entitled to the Residual?, 24 Research in Law & Economics 91-130 (2009).
- Ken Matheny, Catholic Social Teaching on Labor and Capital: Some Implications for Labor Law, 24 St. John's Journal of Legal Commentary 1-52 (2009).
- Mark Tushnet, Heller and the Critique of Judgment, 2008 Supreme Court Review 61-87.
- Symposium: Establishment and Fairness, 25 Constitutional Commentary 241-320 (2008).
Sunday, August 02, 2009
India's High Court Prospectively Bars Shrines On Public Land
Suit Threatened Against British Photographer Who Used Church For Photo Shoot
Establishment Clause Challenge To Homeless Shelter Lease and Sale Moves Ahead
Religious Discrimination Challenges To Placement On No-Fly List Dismissed
As to Ibrahim's claim for damages on the basis of her past treatment at the San Francisco airport, under the Supreme Court's recent decision in Ashcroft v. Iqbal her allegations were not strong enough to create a plausible case of religious and national origin discrimination. This claim was dismissed with leave to amend after discovery in other aspects of her case. Her claim that her hijab was temporarily removed by a police officer searching her was not sufficient to state a claim for violation of religious expression. Ibrahim was permitted to proceed against airport, police and city officials on claims of false imprisonment and interference with civil rights, and against all defendants on Fourth Amendment and emotional distress claims.
Recent Prisoner Free Exercise Cases
In Mayo v. Norris, 2009 U.S. Dist. LEXIS 63515 (ED AR, June 26, 2009), an Arkansas federal magistrate judge recommended that an inmate be permitted to proceed against several state corrections officials. Plaintiff claims that defendants' enforcement of a Department of Corrections policy prohibiting the use of tobacco violates his free exercise rights.
In Perkins v. Booker, 2009 U.S. Dist. LEXIS 64092 (WD MI, May 29, 2009), a Michigan federal magistrate judge recommended rejecting a summary judgment motion filed by two defendants in a prisoner's claim against them charging infringement of his Free Exercise rights and his rights under RLUIPA. At issue was whether plaintiff was properly removed from the prison's kosher food program.
In Brown v. Unfried, 2009 U.S. Dist. LEXIS 64520 (SD IL, July 27, 2009), an Illinois federal district court refused to strike plaintiff's free exercise claim finding that allegations the Madison County Jail refused to accommodate plaintiff's observance of Ramadan are separate from a retaliation claim filed by plaintiff.
In Forde v. Zickefoose, 2009 U.S. Dist. LEXIS 65616 (D CT, April 2, 2009), a Connecticut federal district court refused defendants' motions for summary judgment and permitted a woman federal prisoner who had converted to Islam to move ahead with her claims under RLUIPA and the First amendment. Plaintiff objected to prison policies that subject her to non-emergency pat-down searches by male guards, compel her to use an identification photo that shows her without her hijab, and which fail to provide a qualified imam for weekly jum'ah prayer services.
Religion News Service yesterday reported more broadly on the issues involved in prisoner access to religious materials.
Developments In Two Faith Healing Trials
Meanwhile, in Oregon City, Oregon Friday, Craig Worthington, who was acquitted last month of all charges except second degree criminal mistreatment in the death of his 15-month old daughter (see prior posting), was sentenced to two months in jail and 5 years probation. He was also ordered to provide medical care for his other children. AP reported on the sentencing. Friday's Salt Lake Tribune also discusses the case.
Saturday, August 01, 2009
New IRS Form 990 Pushes Non-Profits To Comply With State Rules
5th Circuit Says Ban On Santeria Sacrifices Violates Texas RFRA
Reversing the trial court, the 5th Circuit concluded that the ordinances substantially burden Merced's free exercise of religion. It also concluded that (while a close case) the city failed to show that it had a compelling interst in barring Merced's activities, and that the ordinances completely banning Merced's slaughter of four-legged animals are not the least restrictive means of carrying out the city's interests. The district court had found no burden, saying Merced had not proven that orishas required sacrifices to be located at his home. (See prior posting.) The 5th Circuit said, among other things, that "predicating a substantial burden on the results of a religious ceremony (divining the will of the orishas) impermissibly allows judges to evaluate the intricacies of a religious practice." By relying on TRFRA, the court avoided having to deal with the constitutional free exercise claim that Merced had also raised. Yesterday's Fresno Bee, reporting on the decision, says that the city of Euless plans to seek a rehearing.
UPDATE: A press release on the case from Becket Fund links to briefs in the case and to a recording of the oral arguments.
Authorities Investigating Muslim Violence Against Christians In Pakistani City
UPDATE: The New York Times on Sunday posted a more personalized account of the situation in an article titled Hate Engulfs Christians in Pakistan.
Vietnam Orders Buddhist Monks To Leave Monastery
The monastery’s problems with authorities began after Hanh made statements in support of the Dalai Lama and urged broader religious freedom in Vietnam. In ordering Hanh’s followers to leave, the government claimed that Plum Village, Hanh’s monastery in southern France, had published false information about Vietnam on its website. On June 27, power was cut to the Monastery compound and two days later a mob threw rocks and animal excrement at an official Buddhist delegation that came to investigate. Government authorities say the problems are caused by disputes between Hanh’s followers and Abbot Duc Nghi, the original owner of the property at Bat Nha. Hanh’s followers have invested over $1 million in expanding the monastery compound.
Friday, July 31, 2009
10th Circuit Denies En Banc Review In 10 Commandments Case By 6-6 Vote
The Court’s decision in this case perpetuates a regrettable misapprehension of the Establishment Clause: that recognition of the role of religion in this country’s founding, history, traditions, and laws is to be strictly excluded from the civic sphere.... The opinion strongly suggests that Ten Commandments displays authorized by small-town commissioners who harbor personal religious beliefs are unconstitutional establishments of religion. Such a conclusion is not only inconsistent with the original meaning of the Establishment Clause, but is also plainly contrary to the Supreme Court’s precedent in Van Orden v. Perry....A second dissent written by Judge Gorsuch and joined by Judges Tacha, Kelly and Tymkovich criticized the panel's application of the Lemon test and went on to contend:
As is typical, none of the judges voting to deny review wrote an opinion. [Thanks to Peter Irons for the lead.][By] making us apparently the first court of appeals since Van Orden to strike down an inclusive display of the Ten Commandments, the panel opinion mistakes the Supreme Court’s clear message that displays of the decalogue alongside other markers of our nation’s legal and cultural history do not threaten an establishment of religion.
IRS Is Investigating Virginia Church
Nigerian Islamist Leader Killed In Police Custody
Settlement Reached In Church's Use of Pensacola FL Park
Some Polish Catholics Protest Upcoming Madonna Concert
Judge Allows Temporary Occupancy of Synagogue After Code Controversy
After County Court Judge Frank LaBuda personally toured the building, he granted a six-week temporary occupancy certificate, and ordered UTA to allow engineers into the building. According to the River Reporter, the judge had some safety concerns, such as door opening inward instead of outward, but he allowed the building to be used temporarily for religious purposes. No meals or other activities may take place there. Meanwhile the Town board has ordered an investigation of the town's Building Department. Lawyers and engineers will look into 6 to 10 projects.
UPDATE: Judge LaBuda has filed a written opinion granting the temporary occupancy certificate. It is United Talmudical Academy Torah V'Yirah, Inc. v Town of Bethel, (Sup. Ct. Sullivan Co., Aug. 24, 2009).
Navy Affiliated Website Ends Ban On Religious Discussion Groups
Thursday, July 30, 2009
Federal Claims Court Agrees That Religious Foundation Is Not A "Church"
Atheist Delivers Protest Invocation At County Commission Meeting
AU Wants Senate Committee To Question Army Head Nominee On Church-State Issues
UPDATE: Blog from the Capital reports that at his confirmation hearing, the only question directed to McHugh about religion in the military was one by Senator Jack Reed who asked about religious freedom for soldiers. McHugh responded by saying that military chaplains "must be sensitive" to the diversity of troops and must avoid proselytization except in church services conducted on personal time.
Jordan's Parliament Split On Religious Groups Under Societies Act
Faith-Based Alternatives To Traditional Insurance Pose Issue Under Reform Legislation
IRS Drops Church Investigation Until Procedural Problems Are Resolved
Tarek ibn Ziyad Academy Counterclaims Against ACLU
Suit Challenges Selective Service Handling of Conscientious Objectors
Wednesday, July 29, 2009
Government Report Says Most Volunteering Is Through Faith-Based Organizations
New York's Syrian Jewish Community Reacts To Rabbis' Arrests
Some in the community are criticizing FBI informant, Solomon Dwek, son of a Syrian Jewish rabbi in Deal, New Jersey. Dwek was a key in obtaining evidence against those arrested. On Saturday, Dwek's father denounced the concept of Jews informing on each other during a study session at his synagogue. Then, to emphasize the point, Rabbi Dwek co-taught a class with Rabbi Edmund Nahum, one of those arrested and released on bail. On a Jewish radio program Saturday night, Sam Hirsch, a former Borough Park assemblyman, called for Solomon Dwek to be ostracized by the community. He also analogized Dwek to the halachic concept of a moser, the Jewish informer who was to be executed. Hirsch backed off his remark later.
The Forward article also has a lengthy discussion of the possible impact of the indictments on the rivalry between factions in Deal's Orthodox Jewish community.
"WWJD" Debt Collection Suit Voluntarily Dismissed After Counterclaims Filed
Indiana Atheist Bus Campaign Lawsuit Settled
Tuesday, July 28, 2009
Dearborn (MI) Wrestling Coach Sues Principal Claiming Religious Bias
The complaint (full text) in Marszalek v. Fadlallah, (ED MI, filed 7/27/2009), alleges more broadly:
57. Defendant Fadlallah, since assuming duties as Fordson’s principal in 2005, has systematically weeded out Christian teachers, coaches, and employees, and has terminated, demoted, or reassigned them because of their Christian beliefs, expressions, and associations. Defendant Fadlallah acts in this manner because Christian beliefs are inconsistent with his personal Muslim beliefs.The lawsuit, challenging Marszalek's firing, alleges discrimination, due process violations, and infringement of free exercise, speech and association rights under various provisions of the U.S. and Michigan constitutions. It also alleges violations of Michigan's Elliot-Larsen Civil Rights Act and a claim for tortious interference with advantageous business relationships. Yesterday's Detroit Free Press reported on the lawsuit.
58. Defendant Fadlallah has publicly stated "he sees Dearborn Fordson High School as a Muslim school, both in students and faculty, and is working to that end," or words to that effect.
A press release by the Thomas More Law Center that filed the suit on behalf of Marszalek quotes TMLC president Richard Thompson, who made a broader assertion. He said: "We are getting a glimpse of what happens when Muslims who refuse to accept American values and principles gain political power in an American community. Failure to renew coach Marszalek’s contract had nothing to do with wrestling and everything to do with religion."
Japan's Catholic Bishops Says Clergy Should Not Serve As Citizen Judges
Author Criticizes Religious Views of Nominee For Head of NIH
At Washington Meeting With Chinese, Obama Raises Religious Freedom Issue
The White House has posted a press release and video of the President's remarks.[T]he United States respects the progress that China has made by lifting hundreds of millions of people out of poverty. Just as we respect China's ancient and remarkable culture, its remarkable achievements, we also strongly believe that the religion and culture of all peoples must be respected and protected, and that all people should be free to speak their minds. And that includes ethnic and religious minorities in China, as surely as it includes minorities within the United States.
Support for human rights and human dignity is ingrained in America. Our nation is made up of immigrants from every part of the world. We have protected our unity and struggled to perfect our union by extending basic rights to all our people. And those rights include the freedom to speak your mind, to worship your God, and to choose your leaders. These are not things that we seek to impose -- this is who we are. It guides our openness to one another and to the world.