Recent Prisoner Free Exercise Cases

In Houseknecht v. Doe, 2009 U.S. Dist. LEXIS 77950 (ED PA, Aug. 28, 2009), a Pennsylvania federal district court rejected an inmate's complaint that his rights under the Free Exercise Clause and RLUIPA were infringed when, because he was placed in protective custody, he was denied access to formal worship services and formal Bible study classes. He was instead permitted to meet with a chaplain. The court allowed plaintiff additional discovery on his retaliation claim.

In Sumahit v. Parker, 2009 U.S. Dist. LEXIS 78973 (ED CA, Sept. 3, 2009), a California federal magistrate judge recommended rejection of a prisoner's free exercise claim, finding that he had not described how restrictions on his access to Native American religious services burdened his ability to practice his religion.

In Johnson v. Sisto, 2009 U.S. Dist. LEXIS 78943 (ED CA, Sept. 2, 2009), a Rastafarian prisoner complained that he was denied access to a vegan diet as required by his Rastafarian faith. A California federal magistrate judge recommended that most of his claims be dismissed because the defendants he sued lacked authority to provide him with a religious diet unless he obtained a religious diet card through the chaplain. However the magistrate recommended that plaintiff be permitted to proceed on his claim that on one occasion, when he was entitled to it, he was denied a religious diet meal.

In Jackson v. Verdini, (MA App. Ct., Aug. 21, 2009), a Massachusetts state appeals court affirmed (with a minor modification) a lower court's holding that the Department of Corrections provide an additional Imam to perform weekly Jum'ah services and that female officers be prohibited from touching the genital or anal areas of any male Muslim inmates except in emergency situations.

In Sandeford v. Plummer, 2009 U.S. Dist. LEXIS 79571 (ND CA, Sept. 1, 2009), a California federal district court allowed plaintiff to move ahead with free exercise and equal protection challenges. Plaintiff alleged that jail staff failed to grant his request for an "Islamic Diet," access to Islamic religious services, and permission to wear a Kufi cap.

In Kaiser v. Shipman, 2009 U.S. Dist. LEXIS 79413 (ND FL, Aug. 4, 2009), a Florida federal magistrate judge recommended dismissal of Free Exercise and RLUIPA claims by an inmate who was not permitted to keep in his personal possession tarot cars, an alter cloth and runes to practice his faith,which prison authorities classified as Wiccan.

In Price v. Caruso, 2009 U.S. Dist. LEXIS 79199 (ED MI, July 16, 2009), a Michigan federal magistrate judge recommended that a Jewish prisoner's monetary damage claim under RLUIPA be dismissed on sovereign immunity grounds, even though factual issues remained as to whether RLUIPA was violated by a ban on Jewish prisoners traveling between prison complexes to hold Sabbath services (in order to obtain 10 persons for a minyan).

In Burns v. Smith, 2009 U.S. Dist. LEXIS 79525 (WD LA, July 16, 2009), a Louisiana federal magistrate judge refused to dismiss free exercise and RLUIPA claims by a pre-trial detainee challenging a detention center's apparent policy of withholding church services to detainees or inmates placed in lockdown for medical reasons.

In Muhammad v. McNeil, 2009 U.S. Dist. LEXIS 79409 (ND FL, July 6, 2009), a Florida federal magistrate judge recommended dismissal of two claims brought by a Muslim prisoner. Plaintiff sought a strict Halal diet that also took account of his medical needs for a meat-based low-residue diet. He also sought, for religious reasons, access to a dentist (at his family's expense) to remove 16 gold crowns installed in his youth which he says now violate his religious beliefs.

Christian Groups Are Proselytizing Dearborn, Michigan's Muslims

Today's Detroit Free Press reports that at least eight Christian groups from across the United States have organized proselytization campaigns aimed at Dearborn, Michigan's large Islamic population. The efforts have already resulted in various lawsuits (see prior postings 1, 2), assertions that opponents of the efforts are stifling free speech, and debates about how Islam can co-exist with Christianity in the West. One Christian group spent at least $67,000 on its activities in Dearborn this summer. Some of the Christian-Muslim encounters have become confrontational. Commenting on the increased activity, Eric Haven, executive pastor at Woodside Bible Church in Troy, Michigan said: "For years, Christians have sent missionaries around the world to proclaim the gospel of Christ. In this day and age, the world is coming to America. ... So, it's a great opportunity."

Louisiana Governor's State-Paid Trips To Churches Raise Controversy

Controversy between Louisiana Governor Bobby Jindal and his critics has been escalating since an article in the New Orleans Advocate a week ago disclosed that at least 15 times this year Jindal used his state helicopter to attend church services around the state. Jindal says he also uses the occasssions to talk with local officials. (Last year, Americans United criticized similar visits by Jindal.) Rev. Welton Gaddy, president of the Interfaith Alliance, but also pastor of a Baptist Church in Monroe, Louisiana, this week wrote Jindal complaining about the taxpayer-funded trips. (Full text of letter.) He wrote in part: "For the sake of religion, please do not politicize houses of worship in Louisiana and rob those of us who minister there of the credibility that allows our faith to be a healing force in our state and across our land."

ABP reports that a Jindal spokesperson reacted to Gaddy's letter by saying : [The Interfaith Alliance] opposes putting crosses up in honor of fallen policemen, has attacked the National Day of Prayer and advocates for same-sex marriage, so it's not surprising that they are attacking the governor for accepting invitations to speak at Louisiana churches." [Thanks to Blog from the Capital for the lead.]

Wisconsin County Seeks Compromise To Avoid Liability Over Monument

In Chippewa County, Wisconsin, officials are scrambling to come up with an acceptable compromise over feared church-state challenges to a monument that was put up on the grounds of the County Building. As reported by KBJR-TV, Business North and Chippewa Valley Newspapers, a private committee came up with plans for a monument to Chippewa County Deputy Jason Zunker who was struck and killed in January 2008 while directing traffic. The 3-panel monument includes a lengthy quote from Deputy Zunker exhorting individual to accept Jesus. The County Building and Grounds Committee approved the monument without knowing what would be on it and without further oversight. Last month the county told the memorial committee to remove the center panel of the monument containing the religious language. On Thursday, however, the county offered a compromise that would leave the panel up if the Jason Zunker Memorial Committee would accept liability in case a lawsuit was filed. One report says that under the compromise, the Memorial Committee would be responsible for all litigation; another says that the county would defend at trial but the Memorial Committee would be responsible for any appeal. Whichever it is, the Memorial Committee has until Oct. 1 to decide whether to accept the compromise.

White House Visitor Logs Will Now Be Routinely Released; Lawsuits Settled

ABC News reported yesterday that the Justice Department has settled several Freedom of Information Act lawsuits brought by the watchdog group Citizens for Responsibility and Ethics in Washington (CREW). All the suits seek release of logs identifying visitors to the White House and the Vice President's Residence. One of the suits sought records of visits of nine prominent conservative Christian leaders to the Bush White House and Vice President Cheney's residence. (See prior posting.) Other of the lawsuits sought records from the Obama administration. On Thursday, the Justice Department released a letter (full text) summarizing the settlement agreement under which it will release the requested records. In addition, the White House will change its policy for the future and will release the names of White House visitors and the officials with whom they met. Release will be made monthly online, with a 3 to 4 month reporting delay and with certain redactions for national security and privacy purposes. Yesterday CREW issued a statement announcing the settlement.

3rd Circuit Tells BIA: Reconsider Whether Iran May Torture Christian Convert

In Ghaziaskar v. Attorney General for the United States, (3d Cir., Sept. 3, 2009), the U.S. 3rd Circuit Court of Appeals, while upholding a portion of the Board of Immigration Appeal's determinations, remanded to BIA the claim by an Iranian immigrant that if he were deported to Iran it is more likely than not that he would face torture. If he can show that, he would be entitled to have his deportation delayed under the Convention Against Torture. Part of Ghaziaskar's claim was that his conversion to Christianity could subject him to torture. The Immigration Judge questioned Ghaziaskar's credibility, but the 3rd Circuit said that the judge failed to consider the practices of Christian churches in Iran. He also failed to consider current conditions in Iran. The Legal Intelligencer reports on the decision.

Italian Prime Minister In Historic Feud With The Vatican

Today's Brisbane (Australia) Times reports from Italy on what it calls an historic and potentially disastrous schism between Italian Prime Minister Silvio Berlusconi and the Vatican. It all began when the Italian daily la Repubblica began repeatedly to ask Berlusconi to explain his relationships with several young women, including an aspiring teen model from Naples. Berlusconi responded by filing a libel suit against la Repubblica, and threatened to sue several other newspaper. European media sharply criticized Berlusconi's attack on the press, and so did the Vatican by cancelling the annual dinner traditionally shared with the Prime Minister after the Perdonanza Mass, a centuries-old service for the forgiveness of sin. Berlusconi responded by cancelling his attendance at the Mass in the earthquake-torn town of L'Aquila. However he also began a counter attack using a newspaper owned by his brother to attack the editor of Avvenire, Italy's main Catholic newspaper.

The Berlusconi paper called Catholic editor, Dino Boffo, a homosexual and claimed he was being sued by the wife of a man he was in a relationship with. Boffo was supported by a public statement from the Vatican, but on Thursday, after issuing a detailed rebuttal and explanation of the allegations, Boffo resigned. He charged his opponents with ''media butchery.'' Brisbane's Times says: "The rift between Mr Berlusconi's administration and the Vatican is now being read as the most serious battle between church and state since World War II."

Iowa School District Unveils Revised Religious Liberty Draft Policy

After withdrawing its original draft policy on religious liberty in schools (see prior posting), Spencer, Iowa school officials today unveiled a new draft (full text). It provides in part:

Teachers shall prepare and teach lessons throughout the year and throughout the curriculum that:

• Approach religion as academic, not devotional
• Strive for student awareness of religions, not acceptance of religions
• Study about religion, but do not practice religion in the classroom
• Expose students to diversity of religious views, not impose any particular view
• Educate about a variety of religions, not promote or denigrate religion
• Inform students about various beliefs, not conform students to any particular belief
• Demonstrate the impact of economic, social, political and cultural effects of religion throughout history
• Are age appropriate

The Spencer Daily Reporter covers these developments.

Obama Issues Proclamation On Remembrance of 9-11 Victims

President Obama yesterday issued a Proclamation (full text) declaring Sept. 4-6 as National Days of Prayer and Remembrance 2009. The Proclamation focuses on the victims of the Sept. 11, 2001 terrorist attacks as well as on members of the armed forces "who work every day to keep our Nation safe from terrorism and other threats to our security." The Proclamation requests: "that the people of the United States, each in their own way, honor the victims of September 11, 2001, and their families through prayer, memorial services, the ringing of bells, and evening candlelight remembrance vigils."

Controversy Persists Over Virginia Gubernatorial Candidate's 20-Year Old Thesis

A controversy has been developing in Virginia this week over the masters' thesis written twenty years ago by now Virginia Republican gubernatorial candidate Robert F. McDonnell. (Washington Post 8/30.) The 93-page thesis titled The Republican Party's Vision for the Family: The Compelling Issue of the Decade was written while McDonnell was a student at what is now Regent University, founded by Pat Robertson. The Washington Post described the thesis:

McDonnell described working women as "detrimental" to the traditional family. He criticized a U.S. Supreme Court decision legalizing contraception for unmarried couples and decried the "purging" of religion from schools. He advocated character education programs in public schools to teach "traditional Judeo-Christian values," and he criticized federal tax credits for child care expenditures because they encouraged women to enter the workforce.

In this week's Atlantic, Wendy Kaminer examines whether or not the thesis is relevant to today's campaign given McDonnell's statements that some of his views expressed in the thesis have changed. Kaminer says she still has questions. For example, she writes: "Reading McDonnell's thesis, which relies on slogans, political talking points, and declarations of faith more than argument, I also wonder if he's developed his capacity for nuanced, rational thought." [Thanks to Scott Mange for the lead.]

Opinion Issued In Case Ordering Parochial School Student Into Public School Band

A Pennsylvania federal district court has now issued a detailed written opinion explaining the temporary restraining order it issued last week (see prior posting) requiring the the Burrell (PA) High School to permit a student who transferred to a parochial school to remain in the high school band. In Trefelner v. Burrell School District, 2009 U.S. Dist. LEXIS 78785 (WD PA, Sept. 2, 2009), the court held that the free exercise rights of Alexander Trefelner, an eighth grade saxophone player, were infringed by the school's policy. The policy, by permitting exceptions for home-schooled students and students attending charter schools, favors secular over religious motivations. The policy is not a neutral policy of general applicability. The reasons advanced for allowing home and charter schooled students to participate apply equally to parochial school students.

Jury Rejects Dance Teacher's Religious Discrimination Claim

In San Diego, California yesterday, a state court jury rejected a former public school dance teacher's religious discrimination lawsuit against the Lemon Grove (CA) School District. According to 10News, Kathy Villalobos claimed the school district fired her for playing dance music containing religious lyrics. However the jury believed the school board that argued Villalobos was fired for missing and cancelling classes. School officials said Villalobos was merely told that if she was going to use religious music, it should be from a wide variety of religions. Villalobos says she plans to appeal the decision.

Groups Urge Change In Senate Bill To Permit Head Coverings In Drivers License Photos

Yesterday more than a dozen religious advocacy and interfaith groups sent a letter (full text) to the chairman and ranking member of the Senate Homeland Security and Governmental Affairs Committee urging them to support an amendment to S. 1261, the PASS ID Act, that is pending in the Senate. The bill pressures states to issue drivers licences and identification cards that contain a digital photograph and other security features. The letter urges that specific language be added to the bill to protect the right of individuals to wear religious head coverings without removal or modification in driver's license and other identification photos. The letter explains: "Our request relates specifically to turbans, yarmulkes, hijabs, and other religious headcoverings; it does not relate to items that conceal the face." Even though language currently in the proposed bill calls for the Department of Homeland Security to issue regulations that include protections for constitutional rights and civil liberties of applicants for licenses and ID cards, apparently DHS does not believe that the language allows them to require states to permit head coverings to be worn in license photos.

Court Enforces Biblically Based Arbitration Agreement

In Easterly v. Heritage Christian Schools., Inc., 2009 U.S. Dist. LEXIS 76269 (SD IN, Aug. 26, 2009), an Indiana federal district court enforced a Biblically-based arbitration agreement between a high school English teacher and the Christian school at which she was employed for some 20 years before she was forced from her job. The contract required teacher Dorothy Easterly to "to resolve differences with others (parents, fellow-workers, Administration) by following the biblical pattern of Matthew 18:15-17," and if that failed to submit any controversy to mediation and binding arbitration conducted under the "Rules of Procedure for Christian Conciliation." The court rejected Easterly's claim that the arbitration agreement was vague, that it deprived her of her ability to vindicate rights protected by disability and age discrimination statutes, and that the procedures were procedurally inadequate. [Thanks to Michael Francisco for the lead.]

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.