Canadian Tribunal Says Internet Hate Speech Law Is Unconstitutional

In a 107-page opinion handed down yesterday, the Canadian Human Rights Tribunal (CHRT) held that Canada's Internet hate speech law is unconstitutional. The CHRT is an adjudicative body that hears discrimination charges referred to it by the Canadian Human Rights Commission. In Warman v. Lemire, (CHRT, Sept. 2, 2009), an opinion by Tribunal member Athanasios Hadjis held that amendments adding monetary penalties to the hate speech law since a 1990 Canadian Supreme Court decision upholding it now make the statute's infringement of free expression disproportionate to the law's objectives. The opinion reasons:

The Supreme Court held in Taylor that despite not requiring any proof of intent to discriminate, s. 13(1) only minimally impairs freedom of expression principally because the Act’s purpose is to prevent discrimination (as well as compensating and protecting the victim), rather than punish moral blameworthiness. ...S. 13(1) has, since the 1998 amendments, lost the exclusively compensatory and preventative features that characterized it in the eyes of the majority in Taylor. Following the Court's reasoning, it can therefore no longer be concluded that the provision still minimally impairs the Charter guaranteed freedom of expression.

Canadian Press reports on the decision. The Ottawa Citizen says that an appeal to the Federal Court of Canada is likely because two other previous Tribunal decisions found the statute constitutional. [Thanks to PewSitter for the lead.]

Religious Peyote Exemption Does Not Invalidate Federal Drug Laws

In United States v. Valazquez, 2009 U.S. Dist. LEXIS 77946 (WD OK, Aug. 31, 2009), a defendant facing federal drug charges argued that the federal controlled substances laws are unconstitutional because of the exemption they grant to the Native American Church for the use of peyote. Relying on several previously decided cases, the court held that the exemption does not violate the Establishment Clause. It also rejected a 5th Amendment equal protection challenge because defendant did not show that he was similarly situated. His possession of methamphetamine was not related to his religious beliefs or practices.

Churches Sue To Prevent Noise Ordinance From Limiting Their Carillon Bells

Three churches in Phoenix, Arizona yesterday filed a federal lawsuit against the city of Phoenix challenging its noise ordinance that has been applied to limit ringing of carillon bells by local churches. The complaint (full text) in St. Mark Roman Catholic Parish Phoenix v. City of Phoenix, (D AZ, filed 9/2/2009), alleges that the noise ordinance is unconstitutionally vague. It also claims that application of the ordinance to churches violates their free speech rights and their right to free exercise of religion under both the federal and Arizona constitutions and Arizona statutory law. A release by Alliance Defense fund announcing the lawsuit criticized the ordinance for exempting ice cream trucks but not churches. Earlier this year, the clergyman of one of the plaintiff churches in this case was convicted of violating the noise ordinance and given a suspended jail sentence along with 3 years' probation. (See prior posting.)

Dutch Prosecutors Will Move Against Anti-Jewish Cartoon

According to Dutch News yesterday, the Dutch public prosecution department has announced that it will file charges against the Arab European League for a cartoon it has posted on its website. The cartoon depicts two men in business suits discussing how to increase the numbers killed in the Holocaust. Prosecutors say the cartoon 'insults Jews because of their race and/or religion." It suggests that Jews themselves invented the idea that 6 million were killed during World War II. The cartoon was an old one that had been taken off the group's website three years ago. However it was posted again after Dutch prosecutors refused to prosecute the TV program Nova and Dutch politician Geert Wilders over republication of cartoons insulting the Prophet Muhammad. Prosecutors say those cartoons did not violate Dutch law because they targeted Muhammad, not Muslims in general. The Dutch Supreme Court drew this distinction in a case decided earlier this year. (See prior posting.) AEL does not think any of the cartoon should be subject to prosecution.

Canadian Court Rejects Challenge To Quebec's New Religious Survey Courses

In the Canadian province of Quebec, a trial court judge has rejected a challenge by Christian parents to the mandatory new course in grades 1 through 11 in Quebec schools that teaches about a broad range of world religions. The Ethics and Religious Culture course covers Christianity, Judaism, aboriginal spirituality, Islam, Hinduism and Buddhism. (See prior posting.) It replaces parents' choice of one of three separate courses that focused on Catholic or Protestant thought, or moral instruction. Yesterday's National Post reports on the decision by a Drummondville Superior Court. Justice Jean-Guy Dubois wrote that "the court does not see how the ... course limits the plaintiff's freedom of conscience and of religion for the children when it provides an overall presentation of various religions without obliging the children to adhere to them." During the trial, one mother testified that it was confusing for her son to learn about Islam while he was still forming his own Catholic spirituality.

Remarks At Kennedy Memorial Service Raise Issue On Mormon Temple Zoning

According to yesterday's Belmont (MA) Citizen-Herald, remarks delivered by Utah Sen. Orrin Hatch at the memorial service for Sen. Edward Kennedy last Friday (full text) have caused some former litigants to question a decision handed down in 2001 by the Massachusetts Supreme Judicial Court. Here is what Hatch said:

There was another time when the Mormon church was nearing completion of its temple here in Boston. Belmont , I think. I was approached by several people working in the temple and informed that the city would not allow a spire to be placed on the top of the temple with an angel on top of it as is customary on Mormon temples. I immediately called Ted and asked for help. Not long after that conversation, he called me back and said, "All of western Massachusetts will see the Angel Gabriel on the top of the Mormon temple. (LAUGHTER) Though I was tempted to leave it alone, I had to inform Teddy it was actually the Angel Maroni....

It turns out that the question of whether a special zoning permit would be granted for the church to build its 85-foot high steeple was litigated all the way to the Massachusetts Supreme Judicial Court. In Martin v. Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints, (MA Sup. Jud. Ct., 2001), Massachusetts' high court held that a state law limiting zoning restrictions on the use of land for religious purposes (the "Dover Amendment") precluded the "unreasonable" height restriction that Belmont's zoning laws imposed.

Now those who opposed the Temple construction are asking whether Kennedy influenced the Supreme Judicial Court's decision. They say Hatch's reference to the time construction was nearing completion would put his call to Kennedy after the February 2000 decision by the Middlesex Superior Court to reverse the decision of Belmont's zoning board of appeals and ban the steeple. The only determination left after that point was that by the Supreme Judicial Court. A spokesperson for the court, however, says they had no interaction with Kennedy and he did not influence the justices in the temple case.

Obama Hosts Iftar Dinner With Interesting Guest List

Last night at the White House, President Obama hosted an iftar dinner marking the Muslim observance of Ramadan. This follows a precedent begun by President Bill Clinton and continued by President George W. Bush (New York Times, Huffington Post). The guest list for last night's dinner was particularly interesting-- cabinet members, members of Congress, ambassadors from counties with significant Muslim populations (including Israel), members (including Jewish and Christian members) of the President’s Council on Faith-based and Neighborhood Partnerships, and various Muslim notables. (Washington Post.) Included were Marine Lt. Cmdr. Abuhena Saifulislam (who has given the prayer at President Bush's Ramadan dinner), and ACLU lawyer Jameel Jaffer whose lawsuit has forced the White House to release secret documents on C.I.A. interrogations and detention. Among the guests highlighted in President Obama's remarks (full text) at the dinner was Nashala Hearn from Muskogee, Oklahoma, whose Justice Department-backed lawsuit vindicated her right to wear a hijab (headscarf) to school.

"Classical" Charter School Sues Challenging Ban On Use of Religious Texts

Yesterday, an Idaho charter school filed a federal lawsuit against members of the Idaho Public Charter School Commission and other state officials, challenging a Commission order banning the use of the Bible or any other religious documents or texts in public charter school classrooms. Plaintiff, the Nampa Classical Academy, had developed its entire curriculum in a classical, liberal arts format, using primary texts-- secular and religious-- as a method of educating its students. The complaint (full text) in Nampa Classical Academy v. Goesling, (D ID, filed 9/1/2009), alleges that a majority of the planned texts are secular. It says that the Academy, which is about to open for its first year of operations, has no intent to use religious texts in devotional manner, and will not be teaching religious tenets. Religious materials, like secular documents, will be used to study western civilization in classes such as history, literature, art or music. The complaint sets out five causes of action: procedural due process, free speech, establishment clause and equal protection clause violations, as well as violations of the state statute setting out procedures for issuing a notice of defect to charter schools. Alliance Defense Fund announced the filing of the lawsuit. (See prior related posting.)

Federal Community Service Agency Designates This Week As "Interfaith Service Week"

The Corporation for National & Community Service (a federal agency) announced yesterday that President Obama's "United We Serve" initiative has designated Aug. 31 through Sept. 6 as "Interfaith Service Week." The week honors efforts of faith-based organizations working across religious lines to strengthen communities. The press release highlighted a number of specific interfaith projects being carried out across the country this week.

Consent Order Settles Suit On In-School Posters Announcing Prayer Events

In May, a Tennessee federal district court issued a preliminary injunction barring Wilson County (TN)'s Lakeview Elementary School from enforcing a broadly written school speech policy to suppress religious references on posters made by students and parents to publicize "See You At the Pole" and National Day of Prayer events at the school. (See prior posting.) On Monday, Alliance Defense Fund announced that the lawsuit has been settled with the entry of a Consent Order (full text). The order makes the preliminary injunction permanent and requires that any new policy restricting religious speech on posters must be reasonable, viewpoint neutral and in accordance with federal law. The Wilson County School Board also paid $50,000 of plaintiffs' attorneys fees and paid nominal damages of $1. The settlement come just in time for this year's See You At the Pole event scheduled nationally for Sept. 23.

Q&A On Faith Healing and the Law Posted

The Pew Forum on Monday posted a Q&A interview on Faith Healing and the Law featuring George Washington University Professor Robert W. Tuttle. Among other issues, Tuttle reflects on the Establishment Clause questions posed by state law exemptions from abuse and neglect statutes for those who rely on faith healing for their children.

Civil Rights Division Will Return To Traditional Agenda Without Ending Religious Discrimination Initiatives

Today's New York Times reports that U.S. Attorney General Eric Holder is pressing major changes in the Justice Department's Civil Rights Division by refocusing on its traditional role that emphasized racial discrimination cases. The Division will again focus on high-impact cases involving voting rights, housing, employment discrimination, bank lending and Congressional redistricting. This shift was widely expected when Holder's nomination was announced. The Bush administration had shifted Division resources to focus on issues such as religious discrimination and human trafficking. (See prior posting.) Holder does not plan to dismantle these efforts, but instead to hire enough additional attorneys to do everything.

Christian Groups May Not Intervene To Challenge Plan B Decision

A New York federal district court has denied a motion by three conservative Christian groups to intervene in a lawsuit in order to challenge a ruling by the court requiring the Food and Drug Administration to make Plan B emergency contraceptives available to 17-year olds without a prescription. (See prior posting.) The groups attempted to intervene after the FDA decided not to appeal the court's ruling. (Full text of Memorandum in Support of Motion to Intervene.) In Tummino v. Hamburg, (ED NY, Aug. 27, 2009), the court held that the groups lack standing to intervene, and that their motion to intervene was not timely filed. The court rejected arguments by Concerned Women for America, Christian Medical & Dental Associations, and Christian Pharmacists Fellowship International that they had suffered informational and procedural injuries, that the court's decision will force pharmacists to sell misbranded drugs, that they had third party standing and that the change in status of the prescription drug gave them standing. Finally, the court rejected intervenors' motion for an extension of time to appeal. LifeSite News yesterday reported on the decision, as did the New York Law Journal.

Court Says Injunction Request Is Moot In Suit Against History Teacher

In C. F. v. Capistrano Unified School District, 2009 U.S. Dist. LEXIS 76932 (CD CA, July 27, 2009), a California federal district court refused to grant injunctive and declaratory relief to a high school student and his parents in their suit against high school history teacher James Corbett. In an earlier decision (see prior posting), the court found that the teacher's statement in class characterizing Creationism as "superstitious nonsense" violated the Establishment Clause. However now the court concluded that the proposed injunction to bar Corbett from expressing any disapproval of religion while acting in his official capacity as a public school employee was overbroad. It also held that any request for a narrower injunction is moot since plaintiff is no longer in Corbett's class. Finally it concluded that a declaratory judgment would serve no useful purpose.

Former Miss California USA Sues Claiming Religious Discrimination

Former Miss California USA, Carrie Prejean, yesterday filed a lawsuit in a California state court against Miss California pageant officials accusing them of religious discrimination, as well as defamation , disclosure of private medical facts and intentional and negligent infliction of emotional distress. Prejean's title was taken away in June 2009, allegedly for breach of contract. The complaint (full text) in Prejean v. Lewis, (Los Angeles Superior Ct., filed 8/31/2009), alleges in part that defendants violated California's Unruh Civil righs Act (CA Civil Code Sec. 51) by conspiring to have Prejean dismissed as Miss California USA because she insisted on publicly expressing her religious beliefs opposing same-sex marriage. Entertainment Tonight reports on the lawsuit. (See prior related posting.)

Scotish Tribunal Asks European Court If Volunteer Is Covered By Discrimination Directive

In Scotland, a Glasgow employment tribunal has ruled that a case should be referred to the European Court of Justice for a preliminary determination of whether EU's employment discrimination directive applies to a volunteer. Today's Scotsman reports on the religious discrimination charges filed by Church of Scotland minister Mahboob Masih, who for six years co-hosted a radio show for Awaz FM on a voluntary basis. He was terminated after a show featuring a "lively" debate about religion and the views of a prominent Muslim speaker. He was directed to apologize on air, which he did. However he refused an additional demand that he go to a local mosque and offer a second apology.

6th Circuit Rejects Discrimination Claim, But Finds Standing For Funding Challenge

In Pedreira v. Kentucky Baptist Homes For Children, Inc., (6th Cir., Aug. 31, 2009), the U.S. 6th Circuit Court of Appeals ruled on two separate groups of claims against KBHC, a faith-based agency providing residential treatment facilities and other services for abused and neglected children. It rejected an employment discrimination claim under the Kentucky Civil Rights Act brought brought by a Family Specialist who had been fired because she was a lesbian. The court said that plaintiff introduced no evidence to show how that constituted discrimination based on her religion.

The second group of claims were challenges under the Establishment Clause to the flow of state funds to KBHC. The court concluded that plaintiffs lacked standing as federal taxpayers to challenge the channeling of federal child care funds to KBHC by the state of Kentucky. It is not enough that the federal statutes merely failed to prohibit the unconstitutional use of these funds. However, the court held that plaintiffs do have standing as state taxpayers to challenge the $100 million of state funds paid to KBHC to care for children. Americans United issued a press release announcing the decision. (See prior related posting.)

Resignation of Scranton Bishops May Reflect Rejection of Anti-Obama Wing

At a press conference (video) yesterday, the Catholic diocese of Scranton, Pennsylvania announced that 63-year old Bishop Joseph F. Martino has resigned for health reasons. (Full text of Bishop Martino's statement.) Also retiring is 77-year old Auxiliary Bishop John M. Dougherty. Cardinal Justin F. Rigali, Archbishop of Philadelphia, was appointed by Pope Benedict XVI as temporary as Apostolic Administrator of the Scranton Diocese. (Full text of Cardinal Rigali's statement.)

Politics Daily yesterday posted an extensive analysis of the political implications of the resignations. Martino had become politically controversial during the 2008 election when he announced that vice-presidential candidate Joe Biden, a native of Scranton, would be denied communion because of his pro-choice views if he tried to receive communion at a church in the Scranton diocese. He also had a letter read during masses last October telling parishioners that voting for a pro-choice politician was equivalent to endorsing "homicide." Martino has also clashed with Catholic universities in his diocese and has irritated others with his abrasive style. The resignations may reflect growing dissatisfaction by fellow-bishops and the Pope with the anti-Obama rhetoric of some U.S. bishops.

Suit Challenging "40 Developmental Assets" Program Is Settled

Last October, a federal district court rejected an Establishment Clause challenge to the Cherry Creek, Colorado School District's "40 Developmental Assets" program. (See prior posting.) In a suit brought by Freedom from Religion Foundation, plaintiffs objected to one of the 40 positive behaviors that parents were encouraged to build in their children-- encouraging children to spend one or more hours per week in activities in a religious institution. Subsequently FFRF filed a new complaint, this time linking the 40 Developmental Assets to a Lutheran, scripture-based program. Yesterday FFRF announced that the lawsuit has been settled. (Full text of settlement agreement.) "Asset 19" in the program will be changed to read: "Intergenerational Activities – Young person spends one or more hours per week in activities with civic, social, governmental, scientific, educational, charitable, faith based or secular (non-religious) organizations."

3rd Circuit: Harassment Case Alleges Sexual Orientation, Not Religious, Discrimination

In Prowel v. Wise Business Forms, Inc., (3d Cir., Aug. 28, 2009), the U.S. 3rd Circuit Court of Appeals rejected a Title VII religious discrimination claim by plaintiff who alleged that his employer harassed him because he did not conform to his co-workers' religious beliefs. Plaintiff is a gay male, and, he alleged, several of his co-workers considered that contrary to being a good Christian. The court concluded that plaintiff was harassed not because of religion, but because of his sexual orientation. However the court allowed plaintiff, an effeminate male, to move ahead with his "gender stereotyping" claim. Plaintiff had adduced enough evidence to go to the jury on whether that, rather than his sexual orientation, was the reason for actions directed at him. Courthouse News Service yesterday reported on the decision.

Parishioners Come Armed To Defend Pastor Who Prays For Obama's Death

In Tempe, Arizona yesterday, members of the Faithful Word Baptist Church came to services armed with guns after Pastor Steven Anderson said he and his congregation have received death threats. The threats came in response to a sermon by Anderson earlier this month titled "Why I Hate Barack Obama", in which Anderson said that he prays for Obama's death. (recording of sermon.) Yesterday Anderson says he wants this to occur by natural causes: "I don't want him to be a martyr, we don't need another holiday," he said. All of Anderson's recent sermons are on the church's website. ABC15 News today reports that Anderson yesterday welcomed his armed parishioners, saying that "guns are a great deterrent." The night after Anderson's Aug. 16 anti-Obama sermon, one of his parishioners, Christopher Broughton, carried an AR-15 semi-automatic assault rifle outside President Obama's speech to the VFW at the Phoenix Convention Center.

Paper Explores Different Takes on Rifqa Bary's Case In Florida

Yesterday's Orlando (FL) Sentinel carries a long article giving a different perspective on the family of Rifqa Bary, the 17-year old girl who fled her parents' home in Columbus, Ohio after converting from Islam to Christianity. The girl says her father threatened to kill her because she converted. A Florida court has ordered her into protective temporary foster care. (See prior posting.) Rifqa's father, Mohamed Bary, says that when school ended this year, Rifqa began spending all night online on Facebook, talking with evangelical Christians and withdrawing from her family and friends. He says some of these people turned her against her family. Those who know the Bary family say that 47-year old Mohamed Bary, a salesman of jewelry and Amway products, would never hurt his daughter. Rifqa's parents learned of her conversion a year ago. They discouraged her carrying a Bible to school, concerned that she would get in trouble for violating separation of church and state. Her father said he merely encouraged Rifqa to learn more about Islam.

Now today's Orlando Sentinel reports that the Bary case threatens to turn into an anti-Muslim campaign by some evangelical Christians. Rifqa's attorney, John Stemberger, exemplifies the rhetoric, saying: "My concern is she is literally a dead girl if she is sent back to Ohio. It's only a matter of time until she disappears into the night." At the same time, a Christian church in Gainsville posted a sign on its property reading: "Islam is of the Devil," and several children were sent home from school for wearing the same slogan on T-shirts. Imam Tariq Rasheed, director of the Islamic Center of Orlando, says this is a misrepresentation of Islam.

UPDATE: According to the Sept. 1 St. Petersburg Times, Rifqa Bary's attorney has released two documents. One is a memo (full text) arguing that the leaders of the Noor Islamic Cultural Center in Dublin, Ohio have links to terrorist organizations. A second is an affidavit from Rifqa (full text) indicating that her parents are actively involved in that mosque.

High School Band T-Shirt Pulled Back After Evolution Theme Draws Complaints

In Sedalia, Missouri, T-shirts promoting the Smith-Cotton High School band's fall program have been pulled back by school officials after complaints from some parents. Yesterday's Springfield (MO) News-Leader reports that the T-shirts feature an image of a monkey progressing through various stages of evolution to eventually become a human being. Each figure holds a brass musical instrument that also evolves, illustrating the band's theme "Brass Evolutions." Assistant Superintendent Brad Pollitt explained the recall by saying that the school district is required to remain neutral on matters of religion. "If the shirts had said 'Brass Resurrections' and had a picture of Jesus on the cross, we would have done the same thing," he said. Other parents were angry that the shirts had been removed. A report by the Sedalia Democrat includes a photo of the offending shirt.

Space Shuttle Carries Relic From Historic Christian Missionary Aviation Episode

The U.S. space shuttle Discovery docked with the international space station yesterday, bringing equipment, food and new laboratory equipment. (Reuters.) While a great deal of attention has been given to the new treadmill (named after Comedy Central television host Stephen Colbert) which was on board Discovery, less attention has been given to another item taken along on the trip. According to World Mag, Astronaut Patrick Forrester convinced NASA to allow him to bring along the battery box from the Piper AP-14 flown by Christian missionary pilot Nate Saint, who was murdered along with 4 others by Waodani (Huaorani) Indians in Ecuador in 1956. (Background.) Forrester hopes this will renew interest in mission aviation. Last week, American Atheists issued a statement objecting to use of taxpayer funds in this manner. Its president, Dr. Ed Bruckner said: "NASA is a scientific and exploratory agency that is funded by taxpayers. Its mission should not include religious grandstanding, or efforts to use outer space as a pulpit for religion."

Muslim Man Complains Probation Service In Britain Refuses Religious Accommodation

In Birmingham, England, a Muslim man-- once active in the Conservative Party-- is objecting to the way he is being treated by the West Midlands Probation Service. Yesterday's Birmingham Mail reports that 43-year old Gulfram Khan was sentenced to a total of 270 hours of community service on two separate charges. One involved his racially insulting an Irish policeman who Khan says discriminated against his family. The second conviction stems from Khan's losing his temper at a civil court judge presiding over a financial management hearing. Khan is supposed to perform 8 hours of unpaid work each Wednesday through December. He asked, however, for a two-hour break in his community service schedule during Ramadan, fearing that his fasting would leave him unable to work the full time. His request was refused, and Khan now says that the Probation Service is prejudiced against Muslims.

Recent Articles and Book of Interest

From SSRN:

• Brian Michael McCall, The Architecture of Law: Building Law on a Solid Foundation the Eternal and Natural Laws, (August 26, 2009).
• Bernadette A. Meyler, Commerce in Religion, (Notre Dame Law Review, Vol. 84, No. 2, 2008).
• Bernadette A. Meyler, Summum and the Establishment Clause, (Northwestern University Law Review Colloquy, Vol 104, p. 95, 2009).

Recent Book:

• Timothy J. Mockaitis, The Seal: A Priest's Story (2009), interview with author at Zenit.

Minnesota Investigating Use Of Lease Aid Funds By Charter School

Yesterday's Minneapolis Star Tribune reports that, in its latest encounter with the Tarek ibn Ziyad Academy, the Minnesota Department of Education is investigating whether the charter school improperly used state funds to subsidize mosques on its two campuses. TiZA has received a total of $2.23 million since 2003 under the state's lease aid program that is designed to help state charter schools rent adequate facilities. For over a year the state has been looking into questions of whether the school has violated constitutional requirements for religious neutrality. (See prior posting.)

Recent Prisoner Free Exercise Cases

In McBride v. Frank, 2009 U.S. Dist. LEXIS 74284 (ED WI, Aug. 21, 2009), a Wisconsin federal district court held that an inmate was barred from relitigating his claim that his free exercise rights were violated by a denial of religious materials while in segregation. He had lost on this claim in prior litigation.

In Washington v. Adams, 2009 U.S. Dist. LEXIS 74355 (ED CA, Aug. 21, 2009), a California federal magistrate judge recommended that an inmate's habeas petition be dismissed. His claim that he was denied his free exercise rights when he was not allowed to change his name is merely a challenge to conditions of confinement for which habeas corpus is not available.

In Tribesman v. California Correctional Peace Officers Association, 2009 U.S. Dist. LEXIS 74734 (CD CA, Aug. 21, 2009), a California federal magistrate judge recommended dismissal of an inmate's claim that his free exercise rights were infringed when he not allowed to attend his grandmother's funeral. It also dismissed more general free exercise claims against a correctional officer's association finding that it was not involved in determining how Native American prisoners would be treated. However the magistrate recommended that plaintiff be allowed to file an amended petition against one of the prison chaplains who allegedly denied Native Americans supplies for their sweat lodge ceremony.

In Wakefield v. Tilton, 2009 U.S. Dist. LEXIS 75391 (ED CA, Aug. 25, 2009), a California federal magistrate judge recommended dismissal of an inmate's claim that by denying his request for daily showers, the prison's Protestant chaplain violated his free exercise rights. Plaintiff claimed this was a requirement of his Seventh Day Adventist religion.

In Webb v. Smartwood, 2009 U.S. Dist. LEXIS 75283 (WD MO, June 15, 2009), a Missouri federal magistrate judge rejected free exercise claims by plaintiff who was in custody of the state Department of Mental Health. Plaintiff alleged that administering of the psychiatric drug Ativan to him violated his free exercise rights, but the court found that this claim was not supported by the evidence. Plaintiff failed to show that his alleged belief in Scientology was sincere.

In Pogue v. Woodford, 2009 U.S. Dist. LEXIS 75943 (ED CA, Aug. 26, 2009), a California federal magistrate judge recommended that most of the numerous claims by a Muslim prisoner that his religious practices were infringed (access to Jumu'ah services, lack of an imam, grooming, prayer oil, single cell status) be dismissed, but allowed him to move ahead on a claim for injunctive relief to obtain the prison's kosher diet while plans for a halal diet are being implemented.

In Scott v. Crites, (TX Ct. App., Aug. 26, 2009), a Texas state appellate court affirmed dismissal of a Native American prisoner's challenge to authorities' search of his medicine bag. Plaintiff failed to argue that prison policies on medicine bags substantially burdened his exercise of religion.

In Bailey v. Ozmint, 2009 U.S. Dist. LEXIS 76651 (D SC, July 27, 2009), a South Carolina federal magistrate judge recommended that a Muslim inmate's challenge to prison grooming regulations be dismissed.

Ted Kennedy Laid To Rest; His Complex Relationship With Catholic Church Is Explored

A funeral mass (background) was recited yesterday for Sen. Edward M. Kennedy (Boston Herald), with Cardinal Sean P. O’Malley, archbishop of Boston, in attendance (Boston Globe). Kennedy has been described by Tim Rutten in the Los Angeles Times as "America's most famous Catholic politician and its most visible link to the bonds of identity and solidarity that have for so long joined Catholics to the Democratic Party." President Obama delivered a eulogy (full text) at the funeral mass, held at the Basilica of Our Lady of Perpetual Help in Boston. As Kennedy was buried, the media carried a number of stories about his complicated relationship with the Catholic Church. Kennedy's support for abortion rights and same-sex marriage has drawn strong criticism from many Catholic leaders, and some pro-life advocates have argued that his stance on abortion should have disqualified him from having a public Catholic funeral mass. (Lifesite News).

At Kennedy's burial service at Arlington National Cemetery, retired Washington Cardinal Theodore McCarrick read long excerpts from a letter that Kennedy sent to Pope Benedict XVI last month and from the Pope's response. (Politics Daily.) The letter from Kennedy, hand delivered by President Obama during his July meeting with the Pope, asked the Pontiff to pray for the Senator's health. In the letter, Kennedy also reiterated his commitment to health care reform and said he believes in conscience protection for Catholics in the health care field. The Pope's response through a senior Vatican official, two weeks later, expressed the Pontiff's concern for Kennedy and said in part: "His Holiness prays that in the days ahead you may be sustained in faith and hope, and granted the precious grace of joyful surrender to the will of God our merciful Father." Meanwhile Time Magazine notes while the Vatican's official newspaper L'Osservatore Romano has reported on Kennedy's death, noticeably absent is a statement directly from the Pope.

EEOC Says Meatpacker Should Have Adjusted Break Times For Muslim Workers

According to an announcement on Friday by CAIR-Chicago, the U.S. Equal Employment Opportunity Commission has concluded that Swift Co. violated Title VII of the 1964 Civil Rights Act when it refused to accommodate a request by Somali Muslim employees at its Grand Island, Nebraska meatpacking plant for adjustments in their break schedules. The employees wanted breaks timed so they could perform their daily prayers. The EEOC also concluded that Swift’s supervisors "subjected Somali Muslim Employees to unlawful harassment, disparate treatment, and discrimination in terms and conditions of employment based on their religion, national origin, race, and color."

Iowa School District's Religion Policy Is Being Redrafted

Last month (as reported by the National Examiner) the Spencer, Iowa school board proposed a draft policy on Religious Liberty in Spencer Community Schools. (Full text of proposal, Word doc.) The policy would have protected student and staff religious expression, student distribution of religious material and would have added two new courses to the high school curriculum: "The Bible in History and Literature" and "Critic [sic.] of Darwinism, a scientific approach". However, on Thursday the Des Moines Register reported that the board has withdrawn the original proposal and will redraft it after complaints that the proposed new courses and other parts of the draft advance Christian beliefs. [Thanks to Blog from the Capital for the lead.]

School District's Mission Statement Challenged For Including Belief in God

The Freedom from Religion Foundation announced on Wednesday that it has written the Lake Local School District in Uniontown, Ohio to complain about the school district's mission statement which reads:

We Value: Responsibility, honesty, respect, integrity, commitment, belief in God and religious freedom, our community, our partnerships, and every person as a unique individual with the ability to acquire and apply knowledge.

In its letter to the superintendent and school board (full text), FFRF said that the school district is unconstitutionally advancing religion through its use of the statement. The mission statement was included in the Board's newsletter, the Blue Streak News, and on a page of the Board's website. Thursday's Canton Repository reported on the letter. [Thanks to Scott Mange for the lead.]

Cert. Filed In Case Invoving Religious Speech By High School Valedictorian

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Corder v. Lewis Palmer School District No. 38. In the case, the U.S. 10th Circuit Court of Appeals rejected constitutional claims brought by a Colorado high school valedictorian who was forced to apologize after she delivered remarks at a high school's graduation ceremony encouraging students to accept Jesus Christ. (See prior posting.) Liberty Counsel issued a release announcing the filing.

Group Challenges Toledo City Council Invocations

Continuing its efforts around the country to challenge invocations offered to open city council meetings, the Freedom from Religion Foundation announced yesterday that it had written to the mayor of Toledo, Ohio and the City Council president objecting to sectarian prayers that have been offered by clergy at Council meetings. The letter (full text) says that while Council apparently has no formal policy on the matter, a review of invocations delivered from January to August by local clergy reveals that they are rarely non-sectarian. Seven of the eleven invocations reviewed contained explicit or implicit references to Jesus. The letter was accompanied by a transcript of all the Toledo City Council invocations reviewed by the FFRF. The letter contends that "these Christian prayers inappropriately alienate non-Christians and non-believers in Toledo." WTOL News reported on the reaction of Toledo City Councilman Tom Waniewski who said: "Stop whining about things. I'm also tired of cow towing to a small minority that's a vocal minority."

Michigan School Board Reinstitutes "Christmas Break"

The Petoskey, Michigan School Board, during a closed portion of its August 18 meeting, voted unanimously to change the school calendar so that "Winter Holiday Break" is now called "Christmas Break." The Petoskey News-Review last week reported that the change was made in response to an e-mail (full text) from the Board's treasurer, Jack Waldvogel. Waldvogel now says his message was "tongue-in-cheek." It read in part:

We are in spite of what the Obamessiah says, STILL a Christian nation, founded on Judeo Christian principles.... [E]ither agree to change the "December vacation" back to "Christmas break" in all future publications (including the school calendar) voluntarily, or I will make a motion to change it at the next board meeting and raise such a stink, and bring out every redneck Christian conservative north of Clare to compel the district to do so....

Let the Ramadamians and the Kwanzanians bring their celebrations to school too .... to share with our Christian children, but don't cut God out of the school completely.... Don't assume this is a joke, I'm being as serious as I possibly can here."

Waldvogel sent his message in reply to one he received from the Superintendent's secretary regarding the school calendar. Apparently he hit "reply to all" without realizing how broadly his e-mail would be circulated. At any rate, on Tuesday the Freedom from Religion Foundation wrote the school district (full text of letter) complaining about the Board's action and asking it to dissociate itself from Waldvogel's remarks. It says the change to "Christmas Break" unconstitutionally advances Christianity over other religions. Yesterday's National Examiner and today's Michigan Messenger report on the controversy.

EEOC Sues Company That Refused Alternative Drug Test For Employee

The EEOC on Wednesday filed a Title VII religious discrimination lawsuit against GKN Driveline North America, Inc., a Sanford, North Carolina automotive components company. According to Industry Week, the lawsuit charges that the company refused to accommodate an employee's religious beliefs. The company fired Santeria practitioner Dwayne Butler after he refused for religious reasons to provide a saliva sample for a drug test. Butler offered to undergo an alternative form of drug testing, but the company rejected this option.

Justice Ginsburg Denies Petition For Stay By Bridgeport Catholic Diocese

Last May, the Connecticut Supreme Court granted the request of four newspapers for release of some 12,600 pages of documents filed in 23 cases alleging sexual abuse by Roman Catholic clergy. (See prior posting.) On motion of the Bridgeport Roman Catholic Diocese, the Connecticut Supreme Court issued a stay until the U.S. Supreme Court ruled on an application to extend the stay. (Background from Diocese website.) On Tuesday, as reported by the New York Times, U.S. Supreme Court Justice Ruth Bader Ginsburg refused the Diocese's request for a stay. (Docket entry.) The Diocese could still ask the full U.S. Supreme Court to reconsider Ginsburg's ruling. A letter from Bishop William E. Lori distributed in all parishes sets out the Diocese's side of the case.

UPDATE: AP reports that on Friday, the Bridgeport Diocese submitted its request for a stay to Justice Antonin Scalia, hoping he will rule differently than did Justice Ginsburg. (Docket entry.) Supreme Court Rule 22 permits an application denied by the Justice assigned to the Circuit where the case arose to be refiled with any other justice. David Clohessy, national director of the Survivors Network of those Abused by Priests, complained: "The appeal to the court's most stridently Catholic member, whose son is a priest, smacks of desperation and favoritism."

Malaysia Bars Muslims From Attending Concert Sponsored By Guinness

In Malaysia, government regulations prohibit concerts from being sponsored by makers of alcoholic beverages. CBC News yesterday reported that an exception to the rule was made for a concert by the hip-hop group, Black Eyed Peas, to be sponsored next month in Kuala Lumpur by the Irish beer company Guinness. The brewery is celebrating its 250th anniversary by sponsoring celebrations around the world, and Malaysia thinks the concert will promote tourism. However, the government says that no Malaysians subject to the country's Shariah law can attend the concert. This includes all ethnic Malays (some 60% of the population) who are considered Muslim. Islam prohibits the consumption of alcohol. However, non-Muslims, 18 and over, are encouraged by the Ministry of Information, Communication and Culture to attend and have fun.

Collateral Defendants Settle In Suit Claiming Religion In Class of Ohio Science Teacher

In June 2008, a Mt. Vernon, Ohio family filed a federal civil rights suit against controversial Middle School science teacher John Freshwater, claiming that he taught religion in his classroom. Also named as defendants in the lawsuit were he school board, Superintendent Steve Short and middle school principal William White. The suit alleged they allowed Freshwater to continue his unconstitutional activities after being notified of his violations of school policy. (See prior posting.) According to the Mt. Vernon News, on Wednesday the school board met and approved a settlement covering all defendants except teacher John Freshwater.

Under the settlement, negotiated by the Board's insurance carrier, the other defendants agreed to pay $115,500 for plaintiffs' legal fees, and damages of $5,500 to one plaintiff, along with nominal damages of $1 each to two others. The settlement also bars staff from discussing the case with students. It calls for training in church-state issues for board members, administrators and teachers. This has already been done. Finally the school board is to make a public statement at the conclusion of the pending administrative hearing on whether Freshwater should be fired. (See prior posting.) The settlement must be approved and approved by the Probate Court of Knox County before a motion to dismiss is filed in federal court. the National Center for Science Education also has a report on developments in the case.

Court Says There Was No Discrimination Against Muslim School Employee

Mohammed v. Wisconsin Insurance Security Fund, (WI App., Aug. 27, 2009), is a religious discrimination lawsuit filed by a Muslim man who was employed as a hall monitor by the Racine (WI) school system. The suit was originally filed in federal district court, but ended up being litigated before the Wisconsin Insurance Security Fund after the school district's insurance company became insolvent and a court barred actions against the company's insureds. Plaintiff claimed that the school Principal's directive to him to stop wearing his kufi and pilgrimage ring to work amounted to discrimination on the basis of religion and race. (School rules prohibit students from wearing these items.) The court upheld findings by WISF that the Principal's order was never enforced, and that a suspension and reassignment were not the result of discrimination. Yesterday's Chicago Tribune reported on the case.

Court Preliminarily Enjoins Enforcement of Illinois Pharmacy Board Rule

A release this week from the American Center for Law & Justice reports that last Friday, an Illinois trial court judge granted a preliminary injunction, pending a decision on the merits, preventing enforcement of a State Pharmacy Board rule requiring pharmacies to dispense Plan B and other forms of emergency contraception. This apparently builds on a temporary restraining order issued last April (see prior posting). In the case, Morr-Fitz, Inc. v. Blagojevich, ACLJ contends that pharmacy owners, not just individual pharmacists, are protected by Illinois' Health Care Right of Conscience Act. The case also raises constitutional challenges to the State Pharmacy Board rule. In issuing the preliminary injunction, the court concluded that plaintiffs have a likelihood of success on the merits of their claim.

New York Releases 2008 Hate Crime Statistics

Last week, New York's Division of Criminal Justice Services released its 2008 report on hate crimes in the state. (Full text of report.) It identified 596 instances, involving 610 victims. Two-thirds were crimes against persons (particularly assault and intimidation), while one-third were property crimes. 43% of the crimes were motivated by race/ethnicity/national origin, while 37% were motivated by religious bias. 31.4% of the victims were targeted in anti-Jewish incidents; 24.8% in anti-Black incidents; and 14.8% in anti-male homosexual incidents. Yesterday's Hudson Valley Times Herald-Record reported on the newly released statistics.

Court Says No Establishment Clause Violation By Orthodox Jewish School Board Majority

In Incantalupo v. Lawrence Union Free School District, (ED NY, Aug. 24, 2009), a New York federal district judge issued an unusually strong opinion rejecting an Establishment Clause challenge to the Lawrence (NY) School Board's consolidation plan that would close one of the district's school buildings. Plaintiffs claim that the Orthodox Jewish majority on the school board took actions to favor Orthodox Jewish families who send their children to private religious schools rather than the public schools administered by the Board. (See prior posting.) In denying a preliminary injunction the court concluded that "plaintiffs have zero chance of success on the merits." The court additionally completely dismissed the complaint for failure to state a claim. It concluded that the School Board's actions have both a secular purpose and effect. The court wrote in part:

Plaintiffs’ contend, the Defendants’plan to sell a school and keep taxes low somehow establishes Orthodox Judaism as Lawrence’s official religion. This argument is completely frivolous....

Plaintiffs essentially complain about low taxes, alleging that these low taxes enable Orthodox Jews residing in Lawrence to afford parochial schools. But if, as in Mueller, tax deductions targeted at private education survive Constitutional muster, then untargeted lower taxes – which help individuals afford everything from parochial education to groceries to vacations – obviously must.....

[U]nder Plaintiffs' reasoning, no claim would lie against political conservatives who ideologically disfavor spending on public schools, or retirees who have no children in the public school system and want lower taxes to boost their discretionary income. Rather, Plaintiffs believe that the School Board’s actions are problematic entirely because the School Board members are Orthodox Jews who are motivated, in part, to help other Orthodox Jews pay yeshiva tuition by lowering their tax burden. In short, Plaintiffs seek to deny Orthodox Jews political rights possessed by every other group in the United States: the right to mobilize in support of religiously neutral government policies, and then have those policies enacted through normal democratic processes. And Plaintiffs seek to do so because, Plaintiffs allege, the School Board's religiously neutral government actions are motivated by the Jewish faith, instead of anti-tax sentiment generally.

Plaintiffs thus ask this Court to discriminate against Orthodox Jews by finding that lower taxes and smaller government are unconstitutional because many of the tax cut’s beneficiaries would choose to allocate their tax savings to Jewish education rather than secular pursuits. But if the First Amendment means anything, it is that the Government cannot prohibit individuals from spending their own money to fulfill the obligations of their religious faith.

Yesterday, both Newsday and Long Island's Jewish Star reported on the decision. [Thanks to both Benjamin Wolf and Joel Katz (Relig. & State in Israel) for leads.]

Bangladesh Court Orders Police To Investigate Fatwa and Village Arbitration

Bangladesh's High Court has issued a directive to police to investigate extra-judicial punishments that are being meted out by village mullahs as self-appointed arbitrators who pronounce fatwas. Dhaka's Daily Star today says that poor women have often been the victims of the so-called fatwa and village arbitration. Some have been ruthlessly whipped. The paper applauds the court for attempting to end the practice, which the paper calls an exploitation of religious sentiments of simple people.

Florida Standardized Test Dates Conflict With Holidays In 2011

The Miami Herald yesterday reported that when Florida's legislature in 2008 moved the dates for the Florida Comprehensive Assessment Test later in the year to give students more time to prepare, they failed to consider possible conflicts with religious holidays. Now it appears that the dates mandated for the 2011 tests for math, reading and science overlap with Passover and Easter. Officials are concerned because some Jewish students stay out of school for religious reasons for some of the days of Passover, and for Christian students, some of the tests will fall on Good Friday. For all students, holiday activities may mean disruptions in schedules that make for less than ideal testing conditions for the important achievement tests. Schools are looking at various options, such as extending testing dates or closing on Good Friday.

TRO Lets Parochial School Musician Into Public School Band

Yesterday a Pennsylvania federal district court granted a temporary restraining order allowing Alexander Trefelner, an eighth grade saxaphone player, to remain in the Burrell (PA) High School band, even though Trefelner will be a student at St. Joseph Catholic High School. Yesterday's Pittsburgh Post-Gazette reported that after a two-hour hearing, the court ruled that school district policy "appears ... to be a burden on the free exercise of religion." The district, as required by state statute, allows charter, cyber- or home-schooled students to participate in public school extracurricular activities even though they are not enrolled full time in district schools. However neither the statute nor the district's policy extends to students enrolled in private or religious schools. Federal district judge Joy Conti concluded that allowing Trefelner to participate is not likely to create increased costs or administrative burdens for the school. (See prior related posting.)

Kentucky's Required Display of Findings On God Violate Establishment Clause

In American Atheists, Inc. v. Commonwealth of Kentucky, (Franklin KY Cir. Ct., Aug. 26, 2009), a Kentucky trial judge struck down a provision in state law requiring the state Department of Homeland Security to promote and display specified findings of the state legislature. The findings include a statement that: "The safety and security of the Commonwealth cannot be achieved apart from reliance upon Almighty God...." The court concluded that the requirement that these findings be included in agency training and educational material and displayed on a sign at the entrance to the state's Emergency Operations Center violates the federal Establishment Clause and Sec. 5 of the Kentucky Constitution. It said:

The nature of this statute is much more than an acknowledgement that people have historically looked to God for protection. The statute pronounces very plainly that current citizens of the Commonwealth cannot be safe, neither now nor in the future, without the aid of Almighty God.... Effectively the General Assembly has created an official government position on God.

McClatchy Newspapers and the Louisville Courier Journal reported on the decision, as did a release from American Atheists.

UPDATE: The Louisville Courier-Journal reports that on Sept. 4 the state filed a notice of appeal in the case as well as a motion to stay enforcement of the trial court's ruling pending appeal.

Sen. Ted Kennedy Dies; Remembering His Views On Religion In Public Life

Sen. Edward M. Kennedy died last night of brain cancer. (AP). President Obama eulogized him, calling him "the greatest United States Senator of our time." (Full text of President's statement.) Sen. Kennedy was a strong supporter of religious freedom and church-state separation. His speech, titled Faith, Truth and Tolerance in America, delivered at Liberty University in 1983, was an eloquent expression of the role of religion in public life. Here are some excerpts:

I am an American and a Catholic; I love my country and treasure my faith. But I do not assume that my conception of patriotism or policy is invariably correct, or that my convictions about religion should command any greater respect than any other faith in this pluralistic society. I believe there surely is such a thing as truth, but who among us can claim a monopoly on it? There are those who do, and their own words testify to their intolerance....

But in saying that, we cannot and should not turn aside from a deeper and more pressing question -- which is whether and how religion should influence government.... The separation of church and state can sometimes be frustrating for women and men of religious faith. They may be tempted to misuse government in order to impose a value which they cannot persuade others to accept. But once we succumb to that temptation, we step onto a slippery slope where everyone’s freedom is at risk. Those who favor censorship should recall that one of the first books ever burned was the first English translation of the Bible.....

The real transgression occurs when religion wants government to tell citizens how to live uniquely personal parts of their lives.... But there are other questions which are inherently public in nature, which we must decide together as a nation, and where religion and religious values can and should speak to our common conscience..... There must be standards for the exercise of such leadership, so that the obligations of belief will not be debased into an opportunity for mere political advantage. But to take a stand at all when a question is both properly public and truly moral is to stand in a long and honored tradition.....

First, we must respect the integrity of religion itself. People of conscience should be careful how they deal in the word of their Lord. In our own history, religion has been falsely invoked to sanction prejudice -- even slavery -- to condemn labor unions and public spending for the poor.....

Religious values cannot be excluded from every public issue; but not every public issue involves religious values.... Second, we must respect the independent judgments of conscience. Those who proclaim moral and religious values can offer counsel, but they should not casually treat a position on a public issue as a test of fealty to faith.... Third, in applying religious values, we must respect the integrity of public debate. In that debate, faith is no substitute for facts..... Fourth, and finally, we must respect the motives of those who exercise their right to disagree.....

In short, I hope for an America where neither "fundamentalist" nor "humanist" will be a dirty word, but a fair description of the different ways in which people of goodwill look at life and into their own souls.

[Thanks to Blog from the Capitol for a link to the speech.]

3rd Circuit Dismisses Abortion Protesters' Bid To Stand On Handicapped Ramp

On Monday, the U.S. 3rd Circuit Court of Appeals rejected a free exercise claim by protesters who sought access to a handicapped entrance ramp outside an abortion clinic in York, Pennsylvania. The protesters claimed that their Christian religious beliefs required them to share their pro-life views with others. In McTernan v. City of York, (3d Cir., Aug. 24, 2009), concluding that the access ramp was a non-public forum, the court held that it was reasonable to require the protesters to stay on the sidewalk next to the ramp. Their presence on the ramp impairs access to the clinic, while walking instead alongside the ramp still gives them access to everyone entering the clinic. The court dismissed plaintiffs' complaint finding that the regulation at issue is a neutral rule of general applicability. In an earlier decision, the 3rd Circuit had remanded for trial free expression claims regarding a restriction on protests elsewhere near the clinic. (See prior posting.)

Catholic Magazine Publishes Reflections On the Obama-Notre Dame Controversy

The new issue of America magazine carries two articles reflecting on the controversy earlier this year surrounding Notre Dame's awarding of an honorary degree to President Barack Obama. (See prior posting.) One article is by John M. D’Arcy, bishop of Fort Wayne-South Bend, where Notre Dame is located. He writes in part:

The diocesan bishop must ask whether a Catholic institution compromises its obligation to give public witness by placing prestige over truth. The bishop must be concerned that Catholic institutions do not succumb to the secular culture, making decisions that appear to many, including ordinary Catholics, as a surrender to a culture opposed to the truth about life and love.

The second article, from John R. Quinn, archbishop emeritus of San Francisco, takes a different tack. He argues that a strategy of refusing to award an honorary degree to the President "undermines the church's transcendent role in the American political order." He continues:

[T]he Obama controversy, in concert with a series of candidate-related condemnations during the 2008 election, has communicated several false and unintended messages to much of American society..... 1. The message that the Catholic bishops of the United States function as partisan political actors in American life. ...2. The message that the bishops are ratifying the "culture war mentality," which corrodes debate both in American politics and in the internal life of the church.... 3. The message that the bishops are effectively indifferent to all grave evils other than abortion.... 4. The message that the bishops are insensitive to the heritage and the continuing existence of racism in America.

[Thanks to Mirror of Justice for the lead.]

Washington State Bans All Holiday Displays Inside Capitol Building

As reported by the Everett (WA) Herald, the state of Washington's Department of General Administration last week adopted a new interim policy (full text) on the use of public areas of the Capitol. Earlier this year, the state began rule making proceedings to avoid the confusion that resulted last year from numerous competing requests to put up holiday displays. (See prior posting.) A Questions & Answers sheet also issued last week by the Department clarifies the interim policy's impact:

Q: Will you allow displays and exhibits?

The interim policy does not allow the public to place displays and exhibits in the public areas of the capitol buildings, regardless of content. However, subject to reasonable time, place and manner restrictions, you may be permitted to place displays outside on the capitol grounds.

Q: Will you permit a Nativity scene in the Legislative Building during the holiday season?

No. General Administration has turned down a request for a Nativity display inside the Legislative Building for December 2009.

Q: Will you permit an atheist display in the Legislative Building during the holiday
season?

No. General Administration has turned down a request for an atheist display inside the Legislative Building for December 2009.

Q: Will there be a holiday tree at the Legislative Building this year?

Yes. The holiday tree will continue as a General Administration activity.

[Thanks to Blog from the Capitol for the lead.]

Mosques Will Aid Malaysian State Officials In Syariah Enforcement

In Malaysia, the Selangor Islamic Religious Department (Jais) has issued authority letters to more than 370 mosques authorizing 4 leaders in each mosque to aid the government in enforcing the Selangor Syariah Crimes Enactment 1995. Yesterday's Malay Mail reports that the mosque officials were given authority to note information about any Muslim found drinking alcohol in public and to hand them over to police or religious enforcement officers. Datuk Dr Hassan Ali, the Selangor executive councillor in charge of religion, said that mosque officials will soon be given the additional power to arrest Muslims for selling and storing alcoholic beverages, and for being "disrespectful" during Ramadan.

Suit Will Charge Judge With Improperly Requiring Removal of Hijab

The Detroit News reports that the Michigan chapter of CAIR today will file suit against Wayne County Circuit Judge J. William Callahan. The suit will claim that the judge ordered a Muslim woman, Raneen Albaghdady, to remove her headscarf (hijab) during a hearing on her application to change her name. CAIR says that this violated her free exercise rights. Unlike a prior case in Detroit, here the woman's face was fully visible. YouTube has a video of part of the exchange between the judge and Albaghdady.

Paper Surveys Scope of Tax Exemptions for Church Property

Sunday's Rochester (NY) Democrat & Chronicle carries a lengthy investigative report on tax exemptions for local property held for religious use. It says that in 2008, the value of properties exempted from taxes for religious purposes in Monroe Count (NY) was almost $756 million. This includes not only church buildings, but parsonages (some of which are very expensive) and vacant land held for future religious use. Even church-owned property used for profit-making purposes remains exempt so long as the profits are reinvested in furthering the church and its ministries. [Thanks to Steven H. Sholk for the lead.]

Florida Governor's Western Wall Notes Seem To Work So Far

Florida Governor Charlie Crist told a group of real estate agents that when he visited Israel as part of a trade mission in 2007, he placed a note in the Western Wall in Jerusalem asking God to protect Florida from storms. No major hurricanes hit Florida that year. So when Florida state Sen. Nan Rich traveled to Israel in 2008, he asked her to do the same thing, and earlier this year Crist asked a friend who was traveling to Israel to put in a note for this year. So far this year, for the third consecutive year, no major storms have hit the state. JTA reported yesterday that Crist doesn't take credit for the lack of hurricanes. He says: "I leave that to God."

Some Claims Against Archdiocese In Clergy Abuse Case Can Proceed

Goebel v. Johnston, 2009 U.S. Dist. LEXIS 74242 (ED MO, Aug. 21, 2009), is a clergy sexual abuse case which was removed to federal court on diversity of citizenship grounds. This opinion involves rulings on motions by the Archdiocese of St. Louis to dismiss various claims against it that are part of the lawsuit. The court held that permitting plaintiff's negligent hiring, retention and supervision claims to proceed would not violate either the Establishment Clause or Free Exercise Clause of the 1st Amendment. In reaching this conclusions, the court said it must perform its own constitutional analysis. Defendants had argued that the court was required to dismiss because in a prior case the Missouri Supreme Court had held that the federal constitution precludes such claims. The court however dismissed plaintiff's breach of fiduciary duty claim finding that Missouri law does not recognize a cause of action for breach of fiduciary duties in a sexual abuse cases against clergy.

UPDATE: The court has issued an almost identical opinion in a similar abuse case brought by a different plaintiff. Perry v. Johnston, 2009 U.S. Dist. LEXIS 74706 (ED MO, Aug. 24, 2009).

Some Claims Dismissed In Sikh's Employment Discrimination Case Against IRS

In Tagore v. United States, 2009 U.S. Dist. LEXIS 74235 (SD TX, Aug. 21, 2009), a Texas federal district court dismissed a portion of the claims brought by a former Internal Revenue Service employee who was fired after she insisted on wearing her kirpan-- a ceremonial dagger worn by Sikhs-- in a Houston federal office building. The court held that plaintiff's Title VII employment discrimination claims preempt her claims under the Religious Freedom Restoration Act based on the same facts. It also held that the only proper defendant in her Title VII case is the Secretary of the Treasury. This leaves the Title VII claim plus a claim under RFRA against the Department of Homeland Security and its employees to move forward to trial. (See prior related posting.)

Utah Judge Orders Sale of Supposed Temple Site By FLDS Trust

In a state trial court in Utah yesterday, Judge Denise Lindberg issued an order for the sale of Berry Knoll Farm by the United Effort Plan Trust which holds property that belonged to the FLDS Church. FLDS Church members, many in polygamous relationships, as well as some who are no longer members, live on the land. The Merced (CA) Sun-Star reports that the controversial order was issued because the trust-- now under court supervision-- has nearly $3 million in debt with no income stream to provide for payment. The order gave court-appointed special fiduciary Bruce Wisan authority to seek bids and complete the sale. Traditional FLDS members oppose the sale because they believe Berry Knoll is a sacred site on which a future temple is to be built. (Background.) Last month, the same court rejected a settlement proposed by Utah's Attorney General in the complicated attempt to reform the UEP Trust. (See prior posting.)

School Girls In Gaza Must Wear Traditional Arab Dress

Both Haaretz and YNet News report today that authorities in the Gaza Strip are insisting that girls in government-run schools wear traditional Arab clothing to class. Girls not wearing the ghalabia (in dark blue) and a white head covering will be sent home. This continues a trend toward imposing Islamic norms in Gaza (see prior posting), though one official said that the move was aimed at easing parents' financial situation. Authorities also will only allow women to teach at girls' schools and men to teach at boys' schools. Some 250,000 students attend government schools, while 200,000 attend United Nations run schools. [Thanks to Joel Katz (Relig. & State in Israel) for the lead.]

Wisconsin Bishops Object To State's Mandate of Contraceptive Coverage In Health Policies

The Wisconsin Catholic Conference has issued a statement (full text) objecting to provisions in the state's new Budget Bill requiring health insurance providers to include contraceptive services as part of any plan coverage. The statement by the bishops says in part: "This mandate will compel Catholic dioceses, parishes, and other agencies that buy health insurance to pay for a medical service that Catholic teaching holds to be gravely immoral." CNA reported yesterday that only dioceses or Catholic agencies that are self-insured will not be covered by the mandate. The La Crosse and Superior dioceses are among those that self-insure. [Thanks to Pew Sitter for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Ayelet Shachar & Ran Hirschl, The New Wall of Separation: Permitting Diversity, Restricting Competition, (Cardozo Law Review, Vol. 30, pp. 2535-2560, 2009).
• Andrew F. March, Islamic Legal Theory, Secularism and Religious Pluralism: Is Modern Religious Freedom Sufficient for the Shari'a 'Purpose [Maqsid]' of 'Preserving Religion [Hifz Al-Din]?', (August 14, 2009).
• Mohammad Fadel, Islamic Politics and Secular Politics: Can They Co-Exist?, (Journal of Law and Religion, Vol. 25, No. 1, 2009).
• Martha Albertson Fineman, Religious Resistance to Family Law Reform in the US, (Emory Law Public Law Journal, Forthcoming).
• Andrew F. March, Taking People as They are: Islam as a 'Realistic Utopia' in the Political Theory of Sayyid Qutb, (APSA 2009 Toronto Meeting Paper).

From SmartCILP:

• Matthew R. Clark & Charles P. Misseijer, Through the Founders' Prism: Faith and Perspective at the Intersection of Law and Policy, 1 Regent Journal of Law & Public Policy 1-10 (2009).
• Jay A. Sekulow & Benjamin P. Sisney. Constitutionally Protected Parental Rights in Child-Custody Arrangements and the Impact of Religion on Children, 1 Regent Journal of Law & Public Policy 169-214 (2009).

Recent Books:

• Meera Nanda, The God Market: How Globalisation Is Making India Hindu, (Random House India, Aug. 2009), reviewed in LiveMint.
• John Micklethwait and Adrian Wooldridge, God Is Back: How the Global Revival of Faith Is Changing the World, (Penguin, April 2009), reviewed in Foreign Affairs.

10th Circuit Refuses To Stay Order On 10 Commandments Monument

On Friday, by a 2-1 vote, the U.S. 10th Circuit Court of Appeals denied a request by Haskell County, Oklahoma commissioners to allow them to keep their Ten Commandments monument in place on the court house lawn while the county seeks review in the U.S. Supreme Court of an order calling for the monument's removal. AP reports on the denial of a motion to recall and stay of the court's mandate. A panel of the 10th Circuit found that the monument violated the Establishment Clause. (See prior posting.) An evenly-divided 10th Circuit denied en banc review. (See prior posting.)

Meanwhile News OK reported on Friday that in Oklahoma City, the State Capitol Preservation Commission is debating where on the state Capitol gounds to locate a 10 Commandments monument authorized by legislation passed earlier this year. (See prior posting.)

Report Says Shiites On Trial In Jordan

The Associated Press reports today that in Jordan six Shiite Muslims are being tried before a closed military tribunal for instigating religious sectarianism in the majority Sunni country. The first of its kind trial apparently reflects Jordan's concern about the growing influence of Iran and Hezbollah movement in the country.

Court Hears Arguments In Challenge To State Humane Slaughter Act

In Everett, Washington last Friday, a state court judge heard arguments in a challenge by an animal rescue group to Washington state's Humane Slaughter Act. The group argues that the exemption for ritual slaughtering of animals (RCW 16.50.150) violates the Establishment Clause in the federal and Washington state constitutions, the federal equal protection clause and the state's privileges and immunities clause. Pasado’s Safe Haven, plaintiff in the case, has posted extensive background on the lawsuit. According to yesterday's Everett Herald, plaintiff's attorney argued that since slaughter without stunning an animal is legal only in ritual slaughter, the law unconstitutionally prescribes different punishments depending on one's religious belief. KING5 News says that plaintiff additionally argues that the law would allow someone to invent a religion as a defense to animal cruelty. The state, however, says that the law applies only to licensed slaughter houses and is an attempt to protect free exercise of religion. A decision in the case is expected later this year.

Philippine Presidential Race Draws Religious Leaders As Candidates

In the Philippines, two religious leaders have announced that they will run in next year's presidential elections, and a third is considering doing so. According to yesterday's Philippine Star, former Catholic priest Ed Panlilio, Governor of the province of Pampanga, was the first to announce. Then on Friday, Eddie Villanueva, leader of the Pentecostal Jesus is the Lord Church, accepted the nomination of the Bangon Pilipinas party. Now a signature campaign has been started by Brother Mike Velarde who is the lay leader of the Catholic Charismatic El Shaddai Movement. Supporters are seeking 10 million signatures. Incumbent President Gloria Macapagal-Arroyo is barred from running for another term in the election scheduled for next May. (Background.)

Satmar Police Recruit Files Religious Discrimination Complaint

Friday's Lower Hudson (NY) Journal News reports on a religious discrimination complaint filed with the EEOC against the town of Ramapo, New York and its police department by Baile Glauber who joined the Ramapo police force after being raised in the Satmar Hasidic Jewish community. She says that in her job interview, she was repeatedly questioned about her upbringing and how her religious observance would affect her ability to perform her police duties. She says officers then shunned her believing that her insular religious upbringing made it impossible for her to become part of the police family. Ramapo says it has followed the law, accommodating Glauber's need for time off for the Sabbath and Jewish holidays. [Thanks to Joel Katz (Relig. & State In Israel) for the lead.]

Recent Prisoner Free Exercise Cases

In Seneca v. Arizona, (9th Cir., Aug. 19, 2009), the U.S. 9th Circuit Court of Appeals reversed part of a district court's decision to dismiss an inmate's free exercise and RLUIPA claims. The appellate court held that plaintiff's challenge to the requirement for a verification letter to change religions was not moot. It also held that the trial court must reconsider whether prison policy limiting inmates to seven religious items had a compelling justification and was the least restrictive means of furthering the Arizona Department of Corrections' interests.

In King v. Sims, 2009 U.S. Dist. LEXIS 71669 (SD MS, Aug. 14, 2009), a Mississippi federal magistrate judge rejected a challenge by a Rastafarian prisoner to the state's grooming policy that prevented him from wearing his hair in dreadlocks.

In Carson v. Riley, 2009 U.S. Dist. LEXIS 73328 (WD MI, Aug. 19, 2009), a Michigan federal district court upheld a prison's denial of a strictly vegetarian Buddhist diet to an inmate after he displayed only minimal knowledge about Buddhism and its dietary requirements in an interview by the prison chaplain. Subsequently plaintiff was transferred to another facility where a vegetarian diet was more available.

In Nieves v. Patrick, 2009 U.S. Dist. LEXIS 73492 (ED CA, Aug. 19, 2009), a California federal magistrate judge recommended dismissal of a generalized allegation by an inmate that religion was not allowed into her prison unit.

In Mincy v. Deparlos, 2009 U.S. Dist. LEXIS 73604 (MD PA, Aug. 19, 2009), a Pennsylvania federal district court allowed plaintiff to move ahead with his free exercise and RLUIPA claims that various actions by prison officials denied him the ability to observe Ramadan.

Michigan Amends Faith Based Office's Charter To Reflect Federal Changes

On Thursday, Michigan Governor Jennifer Granholm announced that she had issued Executive Order 2009-41 to make changes in the document governing the state's office that reaches out to faith-based organizations. The changes to Executive Order 2005-6 are intended to mirror changes made at the federal level by the Obama administration. Michigan's office is now called the Governor's Office of Faith-Based and Neighborhood Partnerships. The executive order also adds the following to the functions previously outlined for the office:

3. Ensure that services paid for with state and federal funds are provided in a manner consistent with fundamental constitutional commitments guaranteeing the equal protection of the laws and the free exercise of religion and prohibiting laws respecting an establishment of religion.

4. Promote effective training for persons providing federally funded social services in faith-based and neighborhood organizations.

5. Promote the better use of program evaluation and research, in order to ensure that organizations deliver services as specified in grant agreements, contracts, memoranda or understanding, and other arrangements.

College In India Illegally Bans Hijab Under Hindu Student Pressure

In India, conflict between a Hindu student group and Muslim students has surfaced at SVS College in the Indian state of Karnataka. UAE's The National reported yesterday that officials at the private, state-assisted, college imposed an illegal ban on Muslim students wearing the hijab (headscarf) under pressure from the student branch of the right-wing Hindu Bharatiya Janata Party, the Akhil Bharatiya Vidyarthi Parishad (ABVP). Ever since the ABVP won college elections that gave it control of the student union, it has created unrest as it has pressed for a ban on the hijab and burqa. Because of the ban, 18-year old Aysha Asmin has stopped attending classes. Mangalore University, with which SVS is affiliated, has assured Asmin that it will help her find a different college where she can continue her studies. Meanwhile a district official has urged penalizing SVS for imposing the "unconstitutional" hijab ban.