Several Governments Decide To Concede On Establishment Clause Challenges

In at least three recent cases, governmental bodies have decided to forgo the cost of defending against Establishment Clause challenges. In Lockland, Ohio (suburban Cincinnati) on Monday, officials took down a 10 Commandments sign that has been displayed for several years. Former Mayor Jim Brown paid $1000 of his own funds to put up the plastic replica, but when suit was filed against the village, attorneys advised the current mayor and council that they would not win. In the village, 100 yard signs display the 10 Commandments on private property to support the village's original decision. (Cincinnati Enquirer, 12/17).

In Wilkes-Barre, Pennsylvania, Luzerne County Commissioners took town a creche and a menorah from the courthouse lawn after receiving a letter from the ACLU and Americans United objecting to the display. The the county-owned nativity scene had been displayed for decades, and a menorah was added 20 years ago. The county currently has a budget crisis. (AP, 12/17).

Lake Local School Board (near Canton, Ohio) gave temporary approval (to be made permanent at the Board's January meeting) to change the school district's mission statement. The Board removed from the mission statement a reference to valuing a belief in God, but left in a reference to valuing religious freedom. The changes came after the Freedom from Religion Foundation threatened to sue, and attorney advised that the school district would lose. (Canton Repository, 12/15).

Provisions That Kept Sex Offenders From Attending Church Held Unconstitutional

In State of North Carolina v. Demaio, (NC Super. Ct., Dec. 17, 2009), a Chatham County North Carolina trial court dismissed charges against two registered sex offenders who had been indicted for attending church at a congregation that also had a nursery for children on premises. Authorities claimed that this violated provisions barring registered sex offenders from being within 300 feet of an area intended primarily for the use, care or supervision of children, or on premises where children's programs are regularly scheduled. (NCGS 14-208.18(a)(2) and (3)).

The court held that these provisions impose an unconstitutionally broad infringement on associational rights. It concluded further that "there are a host of protected religious activities abridged by this statute which do not serve the compelling governmental interest." The court also decided that the provisions are unconstitutionally vague. Authorities could not agree on whether they barred a registered sex offender from being on the premises of a church when no children were actually present in the church. It was also unclear how the area from which the offender was banned was to be calculated. WRAL News reports on the decision. (See prior related posting.)

Mosque Sues To Challenge Rezoning Denial

Suburban Atlanta (GA) Dar-e Abbas Islamic center yesterday filed suit to challenge Lilburn, Georgia's denial of its request for rezoning of a tract of land and for a special use permit to build a mosque, gymnasium and related cemetery. The complaint (full text) in A.G.A. Islamic Organization, Inc. v. City of Lilburn, Georgia, (ND GA, filed 12/17/2009), points out that Shia Islam calls for the ability to bury the dead near their mosque and facing northeast, a requirement that is difficult to meet in many existing cemeteries. The lawsuit claims that a 5-acre requirement for houses of worship treats religious assemblies on less than equal terms in violation of RLUIPA and of the First Amendment. It also claims violation of various provisions of the Georgia state constitution. Yesterday's Atlanta Journal Constitution reports on the case.

6th Circuit Denies En Banc Rehearing In Faith-Based Funding Case

The Louisville (KY) Courier-Journal reports that the U.S. 6th Circuit Court of Appeals on Wednesday denied an en banc rehearing in Pedreira v. Kentucky Baptist Homes For Children, Inc. In August, a 3-judge panel of the 6th Circuit held that plaintiffs have standing as state taxpayers to maintain an Establishment Clause challenge to the $100 million of state funds paid to KBHC to care for children. (See prior posting.) KBHC says it plans to appeal to the U.S. Supreme Court. A KBHC spokesman added: "The ironic thing about this kind of taxpayer suit is that if the plaintiff prevailed in barring faith-based providers from providing these services, where the funding is subsidized by private donations, it would end up costing the taxpayers more."

Commentary: My Initial Reactions To the British Decision in the JFS Case

While I usually refrain from personal commentary on developments, what follows is my initial analysis of yesterday's JFS decision in Britian (--HMF):

Yesterday Britain's new Supreme Court issued a ruling on racial and religious discrimination (see prior posting) whose lessons are broader than so far has generally been suggested. The case involved JFS, a government-funded Jewish school which under British law, as a faith school, is allowed to favor members of the sponsor religion in admissions (but is barred from discriminating on racial grounds).

The nine justices, immersed in a framework in which "religion" is marked by issues of belief and practice, were in a sense bewildered by Jewish religious law that in effect insists that to be Jewish, one must be a member of the Jewish people, either by birth (one's mother was Jewish) or by choice. British law had no good pigeonhole into which to fit this notion of peoplehood. The best it could do was to treat it as "ethnicity," which for purposes of British law meant that a "racial" classification was involved. The Court found it simpler to reach that conclusion because of a 1983 House of Lords decision, Mandla v. Dowell Lee, which created a broad definition of ethnicity to protect a Sikh student who wished to enroll in a non-religious private school, but wanted a waiver of the uniform requirement so he could wear his religiously mandated turban.

At the core of the JFS litigation was a dispute within the Jewish community between Orthodox Jews and Jews who belong to one of the more "liberal" branches of Judaism-- Conservative and Reform in the U.S. (Masorti, Liberal and Reform in Britain). Orthodox rabbis refuse to recognize conversions performed by rabbis from other movements. JFS stuck to the Orthodox position on this issue, and aggrieved parents who felt they were also Jewish went to the civil courts. The Court's decision requires Jewish schools to move to criteria of belief and practice to determine who is Jewish. What happens when a child from a Messianic Jewish family applies for admission? Will the courts again find themselves in the unenviable position of having to decide whether Messianics, who are considered non-Jewish by all streams of conventional Judaism, are Jews because they consider their beliefs to be Jewish? What about members of Humanistic Jewish synagogues who are Jewish by criteria of matrilineal descent, but whose beliefs focus on Jewish identity and culture, not on belief in God?

Second, this decision forces us again to consider what is meant by "race" and "religion." At least in the U.S., we are hesitant to treat race as a biological notion in reaction to our own historical anti-miscegination laws and racial criteria created in Nazi Germany. Instead, contemporary Americans treat race more as a cultural construct. The British courts were faced with a definition of Jewish identity that was at least largely biological. The majority of the Justices seemed unable to conclude that biological criteria could be anything other than racial.

Washington University Creates New Center on Religion & Politics

Washington University (St. Louis) yesterday announced the establishment of the John C. Danforth Center on Religion & Politics. The Center is funded by a $30 million endowment gift from the Danforth Foundation. John C. Danforth served as U.S. Senator from Missouri for 18 years. Speaking at the National Press Club yesterday, University Chancellor Mark S. Wrighton said that the new Center "will serve as an ideologically neutral place that will foster rigorous, unbiased scholarship and encourage conversations between diverse and even conflicting points of view." He said the Center will serve as abridge between the religious and political communities. A link to the Center's website has been added to the Religion Clause sidebar listings of Academic Centers.

Arizona County Jails Will Continue All-Day Christmas Music

According to a report yesterday from UPI, Maricopa County, Arizona, Sheriff Joe Arpaio will once again this year have Christmas and holiday tunes played all day long at all of the county's jails. Six lawsuits have been filed by prisoners who object to the music, alleging forced religious participation and cruel and unusual punishment. Four of the six cases have already been dismissed. The sheriff says he expects the other two to also be dismissed, though at least one survived a motion to dismiss in October. (See prior posting.) According to the facts in that case, the sheriff played "multicultural" holiday music ten hours per day. However the music was not piped into inmate's cells, so they could avoid it by remaining in their cells. Arpaio last year explained his policy: "People everywhere deserve a little Christmas cheer. Especially those incarcerated during the holiday season."

Pew Forum Issues New Study On Religious Restrictions Around the World

Pew Forum on Religion & Public Lifeyestereday released a 72-page report titled Global Restriction on Religion. It finds that 64 nations have high or very high restrictions on religion, affecting nearly 70% of the world's population. The report tracks both official government policies and hostile acts from private individuals, organizations and social groups. Actions by local officials were considered restrictions even if they were contrary to national policy, as long as national officials did not contravene them. The study finds that 75 countries limit proselytization, and 117 require religious groups to register with the government. Christianity Today also reports on the Pew findings.

Court Upholds Application of Clergy-Penitent Privilege For Confession To LDS Bishop

In State of Arizona v. Archibeque, (AZ Ct. App., Dec. 15, 2009), an Arizona appellate court held that the clergy-penitent privilege applies to a confession made by defendant, a member of the Church of Jesus Christ of Latter Day Saints, to his Bishop. It also held that the presence of defendant's wife during the confession, and his disclosures to her regarding his sexually touching his stepdaughter made prior to his confession, did not waive the privilege. The court held that the confession met the privilege requirements set out in A.R.S. § 13-4062(3). The title of "Bishop" is officially bestowed and recognized by the LDS Church. The confession was made in furtherance of the Church's repentance process, as part of the Bishop's official duties.

Religious Tolerance Is Dramatically Improved At Air Force Academy

An AP report yesterday says that religious tolerance has dramatically improved at the U.S. Air Force Academy. After extensive complaints, and even a lawsuit, charging Christian proselytizing of cadets, Academy superintendent, Air Force Lt. Gen. Michael Gould, says there has been a top down campaign to insure respect for beliefs of all cadets and a proactive attempt to accommodate all religions, as well as nonbelievers. A Cadet Interfaith Council meets regularly with chaplains to discuss issues. Even long-time critic Mikey Weinstein has praise for the new atmosphere at the Academy, saying that Gen Gould so far "has fixed everything." (See prior related posting.)

School Excuses Atheist Student From Reading Bible As Literature

Newton, Massachusetts school officials have decided that 15-year old high school student Jack Summers will be excused from reading parts of the Bible that were assigned in a sophomore literature course that includes Dickens' A Tale of Two Cities, Antigone and works by Shakespeare. While no one seems to suggest that the use of excerpts from the Bible in the course to teach students about Western cultural traditions and literary allusions poses any church-state problem, Summers refused to read the handouts and failed two quizzes on them. According to yesterday's Wicked Local Newton, at that point, after first suggesting that Summers read summarized versions of the assignment from the Bible, the school's principal and teachers relented, dropped the student's failing quiz scores and said Summers could complete a final project that did not use the Bible. The student who is an atheist says he is not opposed to learning about world religions outside of school, but says he does not want to read what people believe to be the true word of God. [Thanks to Scott Mange for the lead.]

Full 9th Circuit Hears Oral Arguments In Establishment Clause Challenge To San Francisco Resolution

The U.S. 9th Circuit Court of Appeals yesterday en banc heard oral arguments in Catholic League for Religious and Civil and Rights v. City and County of San Francisco. (Audio recording of full arguments.) In June, a 3-judge panel of the 9th Circuit rejected an Establishment Clause challenge to a strongly worded resolution passed by San Francisco's Board of Supervisors. The resolution criticized a directive from Catholic Cardinal William Levada instructing Catholic social service agencies to not place children in need of adoption with same-sex couples. (See prior posting.) The San Francisco Chronicle reports on yesterday's oral arguments which focused on whether the resolution was an unconstitutional governmental attack on Catholicism, or a justifiable resolution of disapproval of a group that opposed the city's policy on equality for gays and lesbians.

New Mexico Court Upholds Human Rights Agency's Finding Against Photographer

In Elane Photography, LLC v. Willock, (NM Dist. Ct., Dec. 11, 2009), a New Mexico trial court held that a limited liability company owned by a husband and wife and operating a photography business violated New Mexico's Human Rights Act when owner-photographer Elaine Huguenin refused to photograph a same-sex commitment ceremony. Upholding finding by the state's Human Rights Commission (see prior posting), the court concluded that the company was a public accommodation that discriminated on the basis of sexual orientation. It held that application of the HRA did not violate Huguenin's freedom of expression because she is merely a conduit for her client's message in the photos. Huguenin had argued that enforcement of the HRA here forced her to convey a message that a marital relationship can exist between two individuals of the same sex.

The court also concluded that enforcement did not infringe Hugenin's free exercise of religion. Huguenin argued that this forced her to attend a religious ceremony that violates her conscience. The court held however that the HRA is a neutral law of general applicability. Finally the court rejected a claim under the New Mexico Religious Freedom Restoration Act. Alliance Defense Fund announced yesterday that it will appeal the decision. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Britain's Supreme Court Holds Jewish School's Application of Halachic Criteria Is Racial Discrimination

In an important decision today, the Supreme Court of the United Kingdom held that the admissions policy of a government-funded Jewish school violates the prohibitions on racial discrimination in Britain's Race Relations Act 1976. In R (on the application of E) v. Governing Body of JFS, (UKSC, Dec. 16, 2009), the Court held 5-4 that applying the traditional Orthodox Jewish (halachic) definition of who is a Jew, requiring descent from a Jewish mother or conversion according to Orthodox Jewish law-- amounts to "direct discrimination" under the relevant statutory provisions. Two other justices concluded that the admissions decision amounts to "indirect discrimination" under the 1976 Act, and that the school had failed to demonstrate that its policy was proportionate. Following the British pattern of separate opinions from each Justice, the case involves nine opinions spanning 92 pages.

The case grew out of competition for admission to JFS, a premier Jewish school. When the school was oversubscribed, preference was given to students who were considered Jewish by the Office of the Chief Rabbi. The suit was filed by parents of a student who was not considered Jewish because his mother was converted to Judaism by a non-Orthodox rabbi-- reflecting an internal disagreement among various branches of Judaism. A press release issued by the Court summarized the opinions in part as follows:

The judgments of the Court should not be read as criticising the admissions policy of JFS on moral grounds or suggesting that any party to the case could be considered 'racist' in the commonly understood, pejorative, sense.....

In determining whether there is direct discrimination on grounds of ethnic origins for the purposes of the 1976 Act, the court must determine, as a question of fact, whether the victim’s ethnic origins are the factual criterion that determined the decision made by the discriminator.... If so, the motive for the discrimination and/or the reason why the discriminator considered the victim’s ethnic origins significant is irrelevant....

To treat an individual less favourably on the ground that he lacks certain prescribed ethnic origins constitutes direct discrimination.... [T]he factual criterion that determined the refusal to admit M to JFS is clear: the fact that he is not descended in the matrilineal line from a woman recognised by the OCR as Jewish.... The crucial question to be determined is whether this requirement is properly characterised as referring to M’s ethnic origins....

The test applied by JFS focuses upon the ethnicity of the women from whom M is descended.... There can be no doubt that the Jewish people are an ethnic group
within the meaning of the 1976 Act. While JFS and the OCR would have overlooked this fact if M's mother had herself undergone an approved course of Orthodox conversion, this could not alter the fundamental nature of the test being applied. If M’s mother herself was of the requisite ethnic origins in her matrilineal line no conversion requirement would be imposed.....

[T]reating an individual less favourably because of his ancestry ignores his unique characteristics and attributes and fails to respect his autonomy and individuality.... It might be said that the policy adopted by JFS and the OCR was based on both ethnic grounds and grounds of religion, in that the reason for the application of a test based upon ethnic origins was the conviction that such a criterion was dictated by Jewish religious law. The fact that the rule adopted was of a religious character cannot obscure or alter the fact that the content of the rule itself applies a test of ethnicity....

It is not clear that the practice-based test adopted by JFS following the Court of Appeal's judgment will result in JFS being required to admit children who are not regarded by Jewish by one or more of the established Jewish movements.... It may be arguable that an explicit exemption should be provided from the provisions of the
1976 Act in order to allow Jewish faith schools to grant priority in admissions on the basis of matrilineal descent; if so, formulating such an exemption is unquestionably a matter for Parliament.

The New York Times reports on the decision, saying that it will affect both publicly funded and private Jewish schools in Britain, and may affect Sikh and Muslim schools as well. (See prior related posting.) [Thanks to Rabbi Michael Simon and Steve Sheinberg for leads on this case.]

Quebec Issues New Policy Against Homophobia

In Canada last Friday, Quebec's Minister of Justice released the first-ever Quebec Policy Against Homophobia. The new 40-page policy document follows up on a report issued in 2007 (background). Key principles set out in the new policy include elimination of discrimination and respect for the dignity and differences of sexual minority members. It calls for government to be a leader in this regard, and also points to "the responsibility and commitment of all institutional and social players, and of the general public, to combat homophobia." Xtra.ca says that the Justice Minister is expected to appoint a committee to implement the policy next month. LifeSite News, reporting on the new policy, quotes Georges Buscemi, president of Campaign Quebec-Vie, who is concerned about the potential impact of the new policy on religious freedom. He predicted:

They're going to try for the longest possible to just use social pressure and increasingly isolate the recalcitrant entities and institutions.... It's going to lead to ostracizing different churches that have doctrinal oppositions to homosexual behaviour.... [W]e won't see overt sanctions, overt punitive measures, for a while. But those will come eventually.

UK Court of Appeal: No Discrimination In Requring Official To Register Civil Partnerships

In Ladele v. London Borough of Islington, (EWCA, Dec. 15, 2009), the Court of Appeals of England and Wales agreed with Britain's Employment Appeals Tribunal (see prior posting) that a Christian marriage registrar was not subjected to illegal discrimination when she was disciplined and threatened with dismissal for refusing to register same-sex civil partnerships. Lillian Ladelle argued that requiring her to "facilitate the formation of a union which [she] sincerely believe[d] was contrary to God's law" violated her rights under the Employment Equality (Religion or Belief) Regulations 2003. The Court of Appeal, however, concluded unanimously that:

Ms Ladele was employed in a public job and was working for a public authority; she was being required to perform a purely secular task, which was being treated as part of her job; Ms Ladele's refusal to perform that task involved discriminating against gay people in the course of that job; she was being asked to perform the task because of Islington's Dignity for All policy, whose laudable aim was to avoid, or at least minimise, discrimination both among Islington's employees, and as between Islington (and its employees) and those in the community they served; Ms Ladele's refusal was causing offence to at least two of her gay colleagues; Ms Ladele's objection was based on her view of marriage, which was not a core part of her religion; and Islington's requirement in no way prevented her from worshipping as she wished....

Ms Ladele's proper and genuine desire to have her religious views relating to marriage respected should not be permitted to override Islington's concern to ensure that all its registrars manifest equal respect for the homosexual community as for the heterosexual community

Today's London Mail reports on the decision.

Rifqa Bary's Parents Want Ohio Social Services To Screen Daughter's Christmas Cards

The Jawa Report last week reprinted a motion filed at the beginning of December by attorneys for Rifqa Bary, the 17-year old convert to Christianity who fled her Ohio family and went to Florida, saying she was afraid her father would kill her because of her conversion. She is now back in foster care in Ohio. (See prior posting.) The motion, by Rifqa Bary's parents, asks the Franklin County Common Pleas Court to enjoin their daughter's attorneys "from passing messages of third parties directly to the minor child without the approval and supervision of Franklin County Children Services." It also seeks to have any cards now in the possession of Rifqa or her attorney turned over to social workers. The Memorandum in support of the motion cites to "hate filled" websites, that are encouraging messages to be sent to Rifqa, through her attorney, under the guise of sending her Christmas cards. It refers in particular to this posting by Atlas Shrugs asking its readers to "Show Rifqa she is not alone. Send her a Christmas card. Tell her you are praying for her." A hearing on the motion is scheduled for Dec. 22.

DC Circuit Hears Oral Arguments In Challege To Inaugural Oath and Prayers

Yesterday, the D.C. Circuit Court of Appeals heard oral arguments in Newdow v. Roberts. The case challenges the addition of "So help me God" in the oath administered to President Obama, as well as prayers offered by clergy as part of the inaugural ceremony. The district court dismissed the case for lack of standing. (See prior posting.) In yesterday's argument, according to Blog of the Legal Times, Michael Newdow argued that, as an atheist, he suffered stigmatic injury from the religious elements of the ceremony. He also argued that the claims are not moot since future inaugurals are also likely to use the "so help me God" phrase in the oath of office. The government argued that plaintiffs' claims are too generalized to grant standing. They largely watched the ceremony on television. Justice Department attorney Lowell Sturgill Jr. also argued that it is speculative as to whether future presidents-elect will want to use the "so help me God" phrase. Counsel for the Presidential Inaugural Committee, also a defendant, argued that the PIC, a non-governmental group, did not assist the clergy in the ceremony.

At the hearing, the DC Circuit opened with its usual cry: "God save the United States and this honorable court." Plaintiffs' emergency motion asking the court to eliminate the cry before arguments in this case was denied last week. (See prior posting.) In response, apparently Michael Newdow (and Bob Ritter of the American Humanists) absented themselves from the courtroom during the cry. (Comment by Bob Ritter.)

Florida Court Says No-Aid Claim Against Faith-Based Treatment Program Can Proceed

In Council for Secular Humanism, Inc. v. McNeil, (FL Ct. App., Dec. 15, 2009), a Florida state appellate court held that plaintiffs stated a valid claim under the "no-aid" provision of Florida's Constitution (Art. I, Sec. 3) when they challenged per diem payments by the state to two Christian ministries for prisoners placed in their faith-based substance abuse transitional housing programs. At issue were contracts with Lamb of God Ministries and Prisoners of Christ. However the court held that plaintiffs' lacked taxpayer standing to assert a related claim focusing on the performance and oversight of contracts with the ministries. The court also dismissed plaintiffs' challenge to the authority given prison chaplains in the process of placing inmates in substance abuse transitional program. Yesterday's Tampa (FL) Tribune reported on the decision.

Vietnam President Visits Pope; Church Order Seeks Return of Land

Last week, Vietnamese President Nguyen Minh Triet met in the Vatican with Pope Benedict XVI in talks that moved toward normalizing relations between Vietnam and the Holy See. (AFP). According to a separate AFP story yesterday, a few days before the meeting, a Catholic religious order in southern Vietnam asked communist authorities to stop construction on a city park that they say is on property that belongs to the Church. Sisters of Saint-Paul de Chartres asked the chairman of the Vinh Long provincial People's Committee to return land which allegedly had been developed in 1871 as a nunnery and orphanage. This is one of a number of land disputes (see prior posting) growing out of seizure of Catholic Church lands after the end of French colonial rule in 1954 and in the years after reunification of the North and South in 1975. The nuns of Saint-Paul de Chartes were arrested in 1977 and their church building were destroyed in 2003, according to their letter posted on the website of the Vietnam Episcopal Council.

D.C. Council Votes Final Passage of Gay Marriage Bill

Washington, D.C.'s City Council yesterday, by a vote of 11-2, gave final approval to the Religious Freedom and Civil Marriage Equality Amendment Act of 2009. The bill, which permits same-sex marriages to be performed in D.C., now goes to Mayor Adrian A. Fenty, who, according to the Washington Post, is expected to sign the bill before Christmas. Congress then has 30 days to review the legislation and can block it only by a resolution passed by both houses of Congress and signed by the President. It appears unlikely that the law will be rejected through this route. The bill contains protections to assure that clergy can refuse to perform same-sex marriages and that religious organizations can refuse to provide goods, services, accommodations and facilities for same-sex marriages that violate their religious beliefs, except when those facilities are offered to the general public. A number of Christian clergy say they will continue to oppose the legislation. As previously reported, they have filed suit to force an initiative vote on a proposal to define marriages as only between a man and a woman. (See prior related posting.)

Lawsuits Challenge Brooklyn Diocese Over Election Calls

In a press release issued yesterday, New York City Atheists says it is suing the Roman Catholic Diocese of Brooklyn and Bishop Nicholas DiMarzio charging that the Church made Robo-calls during the last election urging voters to cast their ballot for New York State Assemblyman Vito Lopez. The suit, which will be filed tomorrow, claims that the calls violated the Diocese's tax status as a non-profit organization. The complaint asks the court to order the Diocese to surrender its tax exempt status and retroactively pay back taxes. At the same time, a second lawsuit will be filed by a priest and a consortium of clergy sex-abuse survivors claiming that Diocese support for Lopez was a payback for Lopez's key opposition to legislation that would have provided a one-year window for bringing clergy sexual abuse cases as to which the statute of limitations had already expired. (See prior posting.) That suit also names Lopez as a defendant.

Evangelist Oral Roberts Dies

Evangelist Oral Roberts, died today at age 91. The New York Times called him "one of the most recognizable and controversial religious leaders of the 20th century." The Washington Post says "he helped create television evangelism and 'prosperity theology'." The New York Daily News described him as "an Oklahoma faith healer who built an enduring Pentecostal empire and became the first superstar televangelist." He founded Oral Roberts University in 1963.

Arkansas Court Allows Freethinkers Display Next To Capitol's Creche

Yesterday, an Arkansas federal district judge issued a preliminary injunction permitting the Arkansas Society of Freethinkers to place a secular display celebrating the winter solstice and "freethinkers" such as Albert Einstein, Bill Gates and Elanor Roosevelt on the grounds of the Arkansas Capitol near the Christian nativity scene that has been displayed there for more than 50 years. (See prior posting.) The order in Arkansas Society of Freethinkers v. Daniels, (ED AR, Dec. 14, 2009) (full text), indicates that a written opinion will follow. AP reports (via Law.com) that the 8-foot high display will contain an explanation of the solstice and photos of famous freethinkers.

Federal Executive Branch Employees Get Half Day Off On Christmas Eve

Last Friday, President Barack Obama signed an Executive Order (full text) giving employees of all Executive Branch departments and agencies a half day off on the afternoon of Christmas eve. Christmas Day is a legal public holiday under 5 USC Sec. 6103.

Senate Committee Approves Feldblum For EEOC

Last Thursday, the Senate Health, Education, Labor and Pensions Committee approved and sent to the full Senate the nomination of Chai R. Feldblum to be a commissioner on the Equal Employment Opportunity Commission. (Committee press release.) A coalition of conservative Christian groups are attempting to block Feldblum's nomination, concerned about her record as a gay rights activist and her pro-abortion record. (LifeNews, 12/13). A letter opposing the nomination, drafted by the Traditional Values Coalition, has attracted over 100 signers. (Charisma News 12/9). Here is Feldblum's statement at her confirmation hearings last month.

Dutch Court Says Public Transport Company Can Ban Employees From Wearing Religious Necklace

A district court in the Netherlands has ruled that Amsterdam's public transport company, GVB, can prohibit staff from wearing necklaces over their uniforms during working hours, even when a cross, as a religious symbol, is hanging on the necklace. NIS reports today that the suit, brought by an Egyptian Christian male tram conductor, claimed that the ban was discriminatory, especially since Muslim women conductors are allowed to wear headscarves. However the court said that there are other ways to wear a cross, such as on an armband or ring. Also the headscarves that employees are permitted to wear include the GVB logo, so can be seen as part of the uniform instead of a religious symbol.

Final Decision Denies Attorney Fees and Court Costs To High School Teacher

Yesterday's Orange County Register reports that a California federal district judge yesterday issued an opinion affirming an earlier tentative ruling, holding that high school student Chad Farnan is not liable for attorneys' fees incurred by his high school teacher in Farnan's suit against him. Farnan sued high school history teacher James Corbett, the school district and the teachers' union over anti-Christian remarks made by Corbett. While the court found that one statement by Corbett amounted to a violation of the Establishment Clause, it held that Corbett was not liable for damages because he was entitled to qualified immunity. In the current decision, the court concluded that Farnan's suit was not frivolous, baseless or vexatious, a prerequisite for defendant to obtain an award of attorneys fees under 42 USC Sec. 1988. (See prior posting.) The court also reversed an October ruling by the court clerk's office that awarded Corbett court costs. (See prior posting.) Both sides have already appealed the case to the 9th Circuit.

Egyptian Court Reverses Al-Ahzar Ban On Niqab

ANSAmed yesterday reported that in Egypt, the Administrative Tribunal in Cairo has ruled unconstitutional a ban on women students wearing the niqab. The controversy began when in October, Egypt's top cleric, Mohammed Sayyed Tantawi, announced plans to ban women wearing the full face veil from entering any of the schools of Sunni Islam's premier institute of learning, al-Azhar. (See prior posting.) Then Education Minister Yustri El Gamal banned the niqab in public schools. The court ruled that the ban violates personal and religious freedom guaranteed by Egypt's constitution. In 2006, Egypt's Council of State held that American University in Cairo could not ban women from wearing the niqab. (See prior posting.) A committee of the Supreme Administrative Court issued a similar ruling in 2007. (See prior posting.)

Unenforceable North Carolina Provision Barring Atheists From Office Is Focus of Attention [Corrected]

Yesterday's Asheville Citizen-Times reports on a story about a newly-elected Asheville, North Carolina councilman that has inexplicably been carried repeatedly by online media. Cecil Bothwell who took his oath as city councilman last week affirming, rather than swearing, to uphold the law, and not placing his hand on any sacred text, says he is an atheist, or at least a post-theist. All of this is rather unremarkable as is the fact that North Carolina's state constitution (Art. VI, Sec. 8) still has in it now clearly unenforceable language providing that any person "who shall deny the being of Almight God" is disqualified from holding public office. Ever since the U.S. Supreme Court's 1961 decision in Torcaso v. Watkins, it is clear that even though the state never got around to removing the provision from its constitution, it cannot be applied consistent with the U.S. Constitution.

Nevertheless, former Asheville NAACP President H.K. Edgerton, who is a Southern Heritage activist, has suggested that he might sue Bothwell. This news account and others (such as AP) then suggest that such a suit might tie Bothwell up in litigation for years:

But the federal protections don't necessarily spare atheist public officials from spending years defending themselves in court. Avowed atheist Herb Silverman won an eight-year court battle in 1997, when South Carolina's highest court granted him the right to be appointed as a notary despite the state's law.

Overlooked in this suggestion is the fact that Bothwell is in office, while the 1997 case, Silverman v. Campbell, involved a plaintiff who had been denied appointment to office and had to sue to obtain the appointment. The Silverman case specifically held that Art. VI, Sec. 2 of the South Carolina Constitution, a comparable provision requiring a belief in God to hold office, violates the U.S. Constitution.

NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.

Rahm Emmanuel Lights National Menorah On Sunday

Yesterday, White House chief of Staff Rahm Emanuel lit the National Menorah on the Ellipse in front of the White House. The event was sponsored by Chabad. According to AP, Emanuel stood in a cherry picker that lifted him up to light the menorah in front of about 1000 onlookers. This is the 30th anniversary of the first National Menorah lighting, attended in 1979 by then-President Jimmy Carter. (Arutz Sheva). According to Chabad, the ceremony featured the U.S. Air Force Band and "The Three Cantors."

Russian Museum At Odds With Orthodox Church Over Loan of 14th Century Icon

Today's Moscow Times reports that officials at St. Petersburg's Russian Museum are distressed at the decision made by the Russian Republic's Culture Ministry last week to lend a fragile 14th century icon of the Virgin Mary in the Museum's collection to a newly-constructed church in an upscale gated community. The Alexander Nevsky Church has no relationship with the icon, but the Russian Orthodox Church generally believes that icons should serve their original purposes of being available to worshippers. This dispute over the icon, originally from a church in the town of Toropets, is part of a larger dispute between preservation experts and the Russian Orthodox Church over the use of culturally and religiously valuable objects. Visualrian has photos of the delivery of the icon to the church.

India's Parliament Given Proposal To End "Bigamy Through Conversion To Islam"

According to DNA, last Thursday the Law Commission of India forwarded to Parliament its August 2009 report titled Preventing Bigamy via Conversion to Islam – A Proposal for Giving Statutory Effect to Supreme Court Rulings. The report suggests amending the Hindu Marriage Act of 1955 and various other marriage statutes to bar a person who was married as a non-Muslim from marrying again even after converting to Islam, unless the first marriage is dissolved or declared null and void. Muslim and Christian groups are both critical of the proposal. They oppose government interference of any kind in a person's right to choose his or her religion.

Recent Articles of Interest

From SSRN:

• Ellen P. Aprill, The Ballot, the Bimah, and the Tax Code, (CCAR Journal: The Reform Jewish Quarterly, Forthcoming).
• Jose Antonio Seoane, The Boundaries of the Medical Conscientious Objection - About the Refusal of a Blood Transfusion by a Jehovah’s Witness, (InDret, Vol. 4, 2009).
• Lyman P. Q. Johnson, Re-Enchanting the Corporation, William & Mary Business Law Review, Forthcoming).
• Frederick Schauer, Social Epistemology, Holocaust Denial, and the Post-Millian Calculus, (Regulating Hate Speech: Context, Content, and Remedies, Michael Herz & Peter Molnar, eds., Cambridge University Press, 2010).
• Stephen G. Gilles, Roe's Life-or-Health Exception: Self-Defense or Relative-Safety?,(Notre Dame Law Review, Forthcoming).

From SmartCILP and elsewhere:

• Symposium. International Protection of Religious Freedom: National Implementation. Articles by Zhuo Xinping, Denise Meyerson, Gennadiy Druzenko, Evaldo Xavier Gomes, Guillermo Garc¡a-Montufar Sarmiento, Daniel Alegre Porras, Sergio Gonzalez Sandoval, Octavio Lo Prete and Jorge Precht Pizarro. 2009 BYU Law Review 513-704.
• Symposium: Law and Religion. Lecture by Cardinal Roger Mahony. Articles by Robert J. Delahunty, Chad Marzen, Kevin Pybas and Lael Daniel Weinberger. 86 University of Detroit Mercy Law Review 603-766 (2009).
• Margo Schlanger & Giovanna Shay, Preserving the Rule of Law in America's Jails and Prisons: The Case for Amending the Prison Litigation Reform Act, 11 Pennsylvania Journal of Constitutional Law 1 (2008).

Recent Prisoner Free Exercise Cases

On Nov. 30, the U.S. Supreme Court denied certiorari in Chavis v. Fischer, Docket No. 09-7079 (Order List). In the case the U.S. 2nd Circuit Court of Appeals dismissed an inmate's claim that his free exercise rights were infringed when he was required to work on Sundays. (See prior posting.)

In Desimone v. Bartow, 2009 U.S. App. LEXIS 26687 (7th Cir., Dec. 8, 2009), the 7th Circuit rejected an inmate's free exercise and RLUIPA claims, finding that he did not establish a substantial burden on his free exercise of religion. Plaintiff complained that authorities had confiscated his encoded journals that he believed allowed him to maintain a separate realm of thought to conform to the teachings of Yahwism.

In Allen v. Passaic County Jail, 2009 U.S. Dist. LEXIS 113560 (ED PA, Dec. 4, 2009), a Pennsylvania federal district court refused to dismiss a former inmate's claim that his free exercise rights were violated when, because of jail overcrowding, he was unable to attend religious services.

In Hamilton v. Hernandez, 2009 U.S. Dist. LEXIS 113140 (ND CA, Nov. 19, 2009), a California federal district court dismissed an inmate's claims that prison authorities interfered with his practice of his House of Yahweh religion by placing him in a cell with an inmate that did not observe the same religion, by on occasion refusing to release him from his cell to attend Sabbath services, by interfering with House of Yahweh Sabbath services, by failing to provide him a religious diet, and by her infringements and retaliatory action.

In Stewart v. Klein, 2009 U.S. Dist. LEXIS 113040 (D AZ, Nov. 19, 2009), an Arizona federal district court refused to overturn a jury's verdict rejecting an inmate's claim that his free exercise of religion was substantially burdened by receiving meals containing meat and egg products. and that defendant, the kitchen manager, should have corrected the problem.

In Garrison v. Michigan Department of Corrections, 2009 U.S. Dist. LEXIS 114719 (ED MI, Dec. 9, 2009), a Michigan federal district court accepted most of a federal magistrate judge's recommendations (2009 U.S. Dist. LEXIS 114640, Oct. 16, 2009), and dismissed objections to various restrictions imposed by prison officials on plaintiffs' Native American Traditional Spiritual Ways religious ceremonies.

Chirstian Leaders Broadly Oppose Uganda's Proposed Anti-Homosexuality Bill

In the wake of a report issued last month by Political Research Associates charging U.S. conservatives with using churches in Africa to promote homophobia on that continent (see prior posting), USA Today reports that last week 75 Christian leaders from a variety of backgrounds signed a Statement (originally released 12/7) denouncing the Anti-Homosexuality Act of 2009 (full text) currently under consideration by the Parliament of Uganda. (Release by Faith in Life.) The Statement said in part:

Regardless of the diverse theological views of our religious traditions regarding the morality of homosexuality, in our churches, communities and families, we seek to embrace our gay and lesbian brothers and sisters as God's children worthy of respect and love.

Subsequently two other influential leaders came out with statements against the legislation-- Pastor Rick Warren (USA Today report; Warren' statement (12/10)) and Archbishop of Canterbury, Rowan Williams (Ekklesia 12/12.)

Bloomberg News (12/9) reports that a revised version of the bill will drop the death penalty (imposed for "Aggravated Homosexuality") and life imprisonment for gays-- provisions that had particularly generated religious opposition. The revised bill reportedly will also encourage counseling to encourage changes in sexual orientation.

Developments On Vatican Treaties With Israel, Brazil

Asia News reports on Thursday's meeting of Bilateral Permanent Working Group between the Holy See and the State of Israel. The talks over implementation of the 1993 Fundamental Agreement between the Vatican and Israel are dealing with issues of Church property and taxation. Progress is slow because of the complexity of the matters, but the atmosphere of Thursday's talks in the Vatican were described as friendly, with dates for further meetings at the plenary and working levels announced.

Meanwhile the Concordat between the Holy See and Brazil signed last year entered into force on Thursday with a formal ratification ceremony in the Vatican. Zenit reports that that the agreement (full text) provides for religious education in public schools; provides tax exemptions for religious institutions; recognizes ecclesiastical decisions on issues of marriage; and recognizes ecclesiastical academic titles.

Catholic Bishops Say Clergy Exemptions In Britain's Proposed Equality Bill Are Too Narrow

On December 15, Britain's House of Lords is scheduled to debate the proposed Equality Bill that has already passed the House of Commons. The Bill is designed to consolidate into a single statute the various anti-discrimination laws that Britain has enacted. (Background.) Britain's Catholic Herald and the Boston Pilot both report on the briefing for Catholic members of the House of Lords prepared by the Catholic Bishops of England and Wales who are concerned that the employment discrimination exemptions for clergy are too narrow. The bill provides an exemption from ban on employment discrimination on the basis of sex, marital status or sexual orientation for individuals whose "employment mainly involves" either "leading or assisting in the observance of liturgical or ritualistic practices of the religion," or "promoting or explaining the doctrine of the religion (whether to followers of the religion or to others)." (Schedule 9, Sec. 2(8)).

The bishops say that many priests do not spend 51% of their time in these two activities. Instead they may be involved for much of their time in pastoral work, private prayer and study or administration and building maintenance. They say the bill may well make it unlawful for the Church to require that a Catholic priest be male, unmarried or not in a same-sex civil partnership, since no priest would be able to demonstrate that he spends most of his time leading worship or explaining doctrine. Last week the House of Commons defeated a proposed amendment that would have allowed religious organizations to hire only people whose conduct was consistent with the Bible's teachings. (See prior related posting.) [Thanks to Scott Mange for the lead.]

Dutch Muslim Lawyer Cleared of Contempt For Refusing To Stand, Wearing Hat

In the Netherlands, the appeals chamber of the Bar Association's disciplinary council has acquitted Muslim lawyer Mohammed Enait on three contempt of court charges. NIS today reports that one charge involved Enait's refusal to rise, as is customary, when the judge enters the courtroom. Enait says that his Muslim religion teaches that everyone is equal, and rising would mean he is subservient. He was also charged because he wears an Islamic head covering in court, and because of comments he made about a judge during a TV talk show.

ACLU Challenges Illinois' Increase In Lobbyist Registration Fees, Including Church Exemption

The ACLU announced yesterday that it has filed a federal lawsuit in Illinois seeking to block the January 1 increase in fees for registering as a lobbyist for a non-profit organization under the Illinois Lobbyist Registration Act. The complaint (full text) in ACLU of Illinois v. White, (ND IL, filed 12/11/2009) sets out two challenges to the increased fees. First it alleges that the portion of the registration fee diverted to the Illinois General Fund and other amounts in excess of the cost of administering the statute are an unconstitutional tax on speech. Second it claims that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination.

Hanukkah Greetings, Party Plans From the White House

The White House today released a statement (full text) from the President sending warmest wishes from him and Michelle to all who are celebrating Hanukkah. The statement says in part:

Hanukkah is not only a time to celebrate the faith and customs of the Jewish people, but for people of all faiths to celebrate the common aspirations we share.

The White House also released a Hebrew translation of the President's statement. Hanukkah begins at sundown today and is celebrated for eight days.

Meanwhile the New York Times yesterday reported on the kerfuffle surrounding plans for this year's White House Hanukkah party. Rumors began circulating, first in the Israeli press and then in the U.S., that President Obama had cut the number of invitees from the Bush administration's 800 down to 400. Apparently the reality is that the Bush White House invited 600 to its last Hanukkah party, while Obama is inviting 550. Eyebrows were also raised over the invitations sent out by the White House. They invited their recipients to "a holiday reception" on Dec. 16, without mentioning Hanukkah. Meanwhile, the Forward last week carried an interesting history of Hanukkah (or its absence) at the White House through various presidencies.

Defamation Counterclaims By Charter School Against ACLU Dismissed

In ACLU of Minnesota v. Tarek Ibn Ziyad Acadamy, 2009 U.S. Dist. LEXIS 114738 (D MN, Dec. 9, 2009), a Minnesota federal district court dismissed counterclaims for defamation and tortious interference with contract brought by the sponsor of a charter school against the ACLU that was suing it alleging Establishment Clause violations. The counterclaims were based on statements made by the ACLU's executive director, who repeatedly insisted that the Academy was using taxpayer dollars to operate a sectarian Muslim school. The court held that the body of law holding that government bodies may not sue for defamation applies to a publicly funded charter school. Even if this were not the case, TIZA as a public school would be subject to the requirement to show actual malice to recover for defamation. It has not alleged facts to support such a finding. Finally the court concluded that the tortious interference claims were dependent on the allegations of defamation, and should also be dismissed. Today's Minneapolis Star-Tribune reports on the decision.

Opening Grounds To Displays Gives County Problems On How To Choose

In Leesburg, Virginia, earlier this year the Courts Grounds and Facilities Committee banned all displays on courthouse property this year. However after a request to put a Christmas tree on the courthouse lawn, the Board of Supervisors last week voted to overturn the ban on displays. Now the county finds itself faced with requests to allow seven different displays, including a nativity scene, an interfaith display, a sign honoring the solstice and, most troubling to county officials, a suggestive parody of the Twelve Days of Christmas. Leesburg Today reported on Thursday that the county Board of Supervisors was scheduled to meet yesterday afternoon to create rules to help county staff decide which displays to permit.

Hanukkah Begins Tonight; Chabad Public Menorah Displays Grow

The Jewish festival of Hanukkah begins this evening. A press release yesterday from Chabad Lubavitch traces the largely successful 21-year campaign by Chabad to put up large Hanukkah menorahs on public property. The 1989 U.S. Supreme Court decision in County of Allegheny v. ACLU upheld a menorah display in downtown Pittsburgh against an Establishment Clause challenge, largely because it was combined with displays of a Christmas tree and a sign saluting liberty. This paved the way for today's situation summed up by Chabad: "From Montana to Mumbai, from the Western Wall to the Great Wall of China, Chabad’s public menorah lightings number in the thousands." Chabad spokesman Rabbi Yehuda Krinsky says that resistance to public displays of the menorah are diminishing, adding that "after all is said and done, the menorah is a universal symbol of freedom and independence which totally conforms with the American ideal."

Lawsuit Charges Indiana Lawyer Assistance Program With Religious Bias

The ArchAngel Institute is a Christian pro-life organization. Its Executive Director, Bryan Brown, a member of the Kansas bar since 1996, was denied admission to the Indiana bar in 2008 after psychological and psychiatric examinations ordered by the Indiana Board of Law Examiners and the Judges and Lawyers Assistance Program (JLAP). Brown this week filed suit in federal district court in Indiana challenging the operations of JLAP. The examinations they ordered resulted in findings that Brown suffered from a sub-clinical bipolar disorder, or from a personality disorder. The complaint (full text) in Brown v. Bowman, (ND IN, filed 12/8/2009) was filed pro se and in 265 paragraphs chronicles his view that he was the victim of collusion, bias and invidious discrimination. He argues that JLAP and its experts targeted his pro-life beliefs that grow out of his traditional Christian worldview and his constitutional, conservative political perspective. The complaint asserts 26 federal and state constitutional and statutory violations.

Describing the underlyinig facts on the ArchAngel Institute's website, Brown commented that he"was remanded from the Indiana Board of Law Examiners into the Judges and Lawyers Assistance Program on January 25, 2008 (the Feast day of St. Paul) and subjected to that agency’s machinations until they remanded him back to the Indiana Board of Law Examiners on January 22, 2009 (the anniversary of Roe v. Wade)." A column in yesterday's Ft. Wayne (IN) News-Sentinel examines the case.

Group Complains About City's Favoritism of Salvation Army

Each year, the city of Meriden, Connecticut sponsors the Festival of Silver Lights in Hubbard Park. From Thanksgiving until the week after New years, the Festival features over 300 lighted displays. For the past two years, each night a different local charity was allowed to collect donations. This year, however, according to Wednesday's Meriden Record Journal, the Salvation Army has been given the exclusive right, throughout the Festival, to solicit funds. The Connecticut ACLU has objected, arguing that a single religious group should not be the exclusive beneficiary of a city-run attraction. The Salvation Army says that the $1400 collected so far will be used for social services, not religious programming.

Suit Challenges Refusal To Permit Solstice Display at State Capitol

Yesterday the Arkansas Society of Freethinkers filed a federal court lawsuit against the Arkansas secretary of state challenging the state's refusal to allow the Freethinkers to install a temporary Winter Solstice display on the state capitol grounds. According to the complaint (full text) in Arkansas Society of Freethinkers v. Daniels, (ED AR, filed 12/10/2009), the only other temporary display currently on capitol grounds is a creche. Arkansas' written Policy on Temporary Displays on State Capitol Grounds sets out no guidelines on which displays will be permitted, except for a ban on any display blocking traffic. The lawsuit contends that the denial of plaintiffs' request was based solely on the secretary of state's unbridled discretion and unconstitutionally restricts access to a designated public forum by limiting displays to those that the Secretary of State personally finds acceptable as to content and viewpoint. Arkansas Blog has further background and reprints the Arkansas ACLU's press release on the case.

Obama Accepts Nobel Peace Prize With Speech Focusing on "Just War"

President Barack Obama this morning accepted the Nobel Peace Prize with a speech (full text) that focused extensively on the concept of "just war." Here are some excerpts:

Over time, as codes of law sought to control violence within groups, so did philosophers, clerics and statesmen seek to regulate the destructive power of war. The concept of a "just war" emerged, suggesting that war is justified only when it meets certain preconditions: if it is waged as a last resort or in self-defense; if the forced used is proportional; and if, whenever possible, civilians are spared from violence.

For most of history, this concept of just war was rarely observed. The capacity of human beings to think up new ways to kill one another proved inexhaustible, as did our capacity to exempt from mercy those who look different or pray to a different God. Wars between armies gave way to wars between nations — total wars in which the distinction between combatant and civilian became blurred. In the span of 30 years, such carnage would twice engulf this continent. And while it is hard to conceive of a cause more just than the defeat of the Third Reich and the Axis powers, World War II was a conflict in which the total number of civilians who died exceeded the number of soldiers who perished.

In the wake of such destruction, and with the advent of the nuclear age, it became clear to victor and vanquished alike that the world needed institutions to prevent another World War.
...

As the world grows smaller, you might think it would be easier for human beings to recognize how similar we are, to understand that we all basically want the same things, that we all hope for the chance to live out our lives with some measure of happiness and fulfillment for ourselves and our families.

And yet, given the dizzying pace of globalization, and the cultural leveling of modernity, it should come as no surprise that people fear the loss of what they cherish about their particular identities — their race, their tribe and, perhaps most powerfully, their religion. In some places, this fear has led to conflict. At times, it even feels like we are moving backwards. We see it in the Middle East, as the conflict between Arabs and Jews seems to harden. We see it in nations that are torn asunder by tribal lines.

Most dangerously, we see it in the way that religion is used to justify the murder of innocents by those who have distorted and defiled the great religion of Islam, and who attacked my country from Afghanistan. These extremists are not the first to kill in the name of God; the cruelties of the Crusades are amply recorded. But they remind us that no Holy War can ever be a just war. For if you truly believe that you are carrying out divine will, then there is no need for restraint — no need to spare the pregnant mother, or the medic, or even a person of ones own faith. Such a warped view of religion is not just incompatible with the concept of peace, but the purpose of faith — for the one rule that lies at the heart of every major religion is that we do unto others as we would have them do unto us.

Adhering to this law of love has always been the core struggle of human nature. We are fallible. We make mistakes, and fall victim to the temptations of pride, and power, and sometimes evil. Even those of us with the best intentions will at times fail to right the wrongs before us.

Court Rejects Free Exercise Challenge To New Mexico Cock Fighting Ban

In Kizzar v. Richardson, 2009 U.S. Dist. LEXIS 114191 (D NM, Oct. 31, 2009), a New Mexico federal district court dismissed a pro se plaintiff's scatter-shot challenge to New Mexico's 2007 law banning cock fighting. Plaintiff's pleadings were somewhat incoherent as to the exact action that had been taken against him under the new law. One of his numerous challenges was that his free exercise rights were being infringed. He alleged that the statute on cockfighting "states that laws giving animals entitlement to rights, and judging or condemning individuals by the manner of treatment of animals contradicts the Bible, disparaging the Plaintiff's Christian belief, while bolstering the Animal Rights creed." The court held that plaintiff failed to allege how his rights had been violated, nor did he allege that he is no longer free to practice his religion.

Resolution To Protect Sanctity of Christmas Introduced Into House

On Tuesday, South Carolina Congressman Henry E. Brown, Jr. introduced H. Res. 951 which urges protection of the symbols and traditions of Christmas. The operative language reads:

Resolved, That the House of Representatives—
(1) recognizes the importance of the symbols and traditions of Christmas;
(2) strongly disapproves of attempts to ban references to Christmas; and
(3) expresses support for the use of these symbols and traditions by those who celebrate Christmas.

Rep. Brown's press release explaining the resolution says in part:

I am troubled by the growing sentiment that the phrase 'Merry Christmas' is not appropriate and I am worried that attempts to celebrate a 'politically correct' holiday season may cause the loss of some of the traditions sacred to this widely celebrated holiday.

I recognize that there are many religions that celebrate a variety of holidays this month and in accordance with the First Amendment, I believe it is important to preserve the right for everyone to worship as they believe....

We must not forget that the true meaning of Christmas is to celebrate of the birth of Christ and I will continue to work to protect the sanctity of this great holiday.

The Resolution has 17 co-sponsors.

UPDATE: On Dec. 10, Rep. Brown criticized President and Mrs. Obama for sending out White House holiday cards that say "Season's Greetings" and do not specifically mention Christmas. (Fox News.) [Thanks to God and Country blog for the lead.]

9th Circuit Hears Latest Appeal In Mt. Soledad Cross Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments in Jewish War Veterans v. City of San Diego. (Recording of full arguments.) The case is part of the 20-year long series of lawsuits challenging the Mt. Soledad Veterans Memorial in San Diego, California, and the large Cross that is part of the memorial. This latest chapter is an appeal from a federal district court decision that rejected an Establishment Clause challenge, holding that Congress' primary purpose in acquiring the memorial was to preserve the site as a veterans' memorial, not to advance or favor a particular religion. The court went on to hold that maintaining the site with its cross has primarily a patriotic and nationalistic effect, rather than a religious one. (See prior posting.) Reporting on the oral arguments, yesterday's San Diego Union Tribune said that lawyers faced particularly heavy questioning from Judge M. Margaret McKeown.

Mormon Senator Orin Hatch Composes New Hanukkah Song

Tuesday's New York Times reports that Republican Senator Orin Hatch, a Mormon from Utah has written the lyrics for a catchy Hanukkah song, "Eight Days of Hanukkah." The music is by Hatch's musical collaborator,Madeline Stone. Hatch is known for writing Christian hymns and patriotic songs, but this is his first Jewish composition. Hatch says, "Mormons believe the Jewish people are the chosen people, just like the Old Testament says." Jeffrey Goldberg writing in Tablet Magazine chronicles the background that led to Hatch writing the song. It began with a conversation between Goldberg and Hatch ten years ago, and got a push from a blog entry by Goldberg last year. Here is a video of the song being performed by Rasheeda Azar, a Syrian-American vocalist from Indiana.

Today Is Human Rights Day-- 61st Anniversary of UN Declaration

Today is Human Rights Day, commemorating the 1948 adoption by the United Nations General Assembly of the Universal Declaration of Human Rights. Article 18 of the document provides:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

The theme of Human Rights Day 2009 is non-discrimination. Article 2 of the Declaration provides:

Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

The United Nations High Commissioner for Human Rights released a statement yesterday expanding on the concept of non-discrimination. After discussing discrimination against women and racial and ethnic minorities, Navi Palli continued:

Discrimination based on religion or belief can be equally destructive. In certain countries, members of certain groups are restricted in how they can exercise their religion or belief and deprived of their fundamental rights. In extreme cases such conditions may lead to sectarian violence, killing and conflict. Stereotyping can lead to stigmatization and isolationism.

British Court Rejects Criminal Charges Against Christian Hotel Owners

In Britain yesterday, a Liverpool Magistrate's Court dismissed charges of religiously aggravated threatening behavior that had been brought against a Christian couple who own a hotel in Liverpool. The charges brought under Section 5 of the Public Order Act (1986) charged that Ben and Sharon Vogelenzang had made threatening, abusive or insulting remarks about Islam to hotel guest Ericka Tazi. Yesterday's London Times reports that the charges grew out of a 15-minute incident at the hotel when Tazi, who was completing her stay after taking a pain management course at nearby Aintree Hospital, decided to wear a hijab to breakfast. Each side has a somewhat different version of the incident, and the judge, according to BBC News dismissed the charges because the evidence against the hotel owners was inconsistent. The Christian Institute sponsored the Vogelenzang's defense, and the high profile dismissal is seen as a victory by evangelical groups who say the issue was free speech and religious liberty. Business at the Vogelenzang's Bounty House Hotel fell 80% while the prosecution was pending. [Thanks to Religion News Blog for the lead.]

Questioning of Expert Witness About Religion Found To Be Harmless Error

In re State of New York v. Andrew O., (App. Div., Dec. 3, 2009), is an appeal of a trial court's finding that respondent is a dangerous sex offender who needs to be confined to a secure treatment facility. One objection raised by respondent was that the psychologist who testified for him was improperly questioned about religion. On cross-examination, counsel questioned the psychologist about Yoism, a religion that he founded. All five judges on the New York appellate court concluded that interjection of a party's religious beliefs or observances has no place in either a criminal or civil trial . However 4 of the 5 held that the objectionable questioning did not substantially influence the jury's verdict. Judge Rose dissenting argued that because of the importance of the psychologist's testimony in the case, the order should be reversed and the case sent back for a new trial. Yesterday's Albany Times-Union reported on the decision with additional details.

California Woman Pushing Initiative To Require Christmas Carols In Schools

Yesterday's Redding, California Record Searchlight reports on the progress of Merry Hyatt who is collecting signatures for a proposed ballot initiative (full text) that would require public schools to "provide opportunities to its pupils for listening or performing Christmas music at an appropriate time of year." The measure describes Christmas music as a "longstanding American tradition and a significant element of our cultural heritage as Americans." The initiative also provides that parents may opt their children out of the sessions. The proposed initiative was filed with California's Attorney General's office in September. Proponents must obtain 433,971 signatures by the end of March 2010 in order for the initiative to appear on the ballot. Rob Boston of Americans United says the proposed initiative is "blatantly unconstitutional."

Oman Authorities Investigating Religious Text Message Scam

In Oman, the Telecommunications Regulatory Authority is investigating a scam which some say is being carried out by mobile telephone companies exploiting religious sentiments of their subscribers. UAE's The National reported yesterday that automated religious text messages are being sent out to customers, concluding with: "Forward this message to 10 people to earn the rewards of afterlife." Other religious messages conclude more ominously: "If you do not forward this message then something bad will happen to you." Many Omanis, especially those in small towns, forward the messages as a religious act. In large quantities, these can be profitable for phone providers who charge a small fee for each text message sent. Omani telephone companies strongly deny they are responsible for the messages. The telecommunications business in Oman is highly competitive, with six companies vying for customers.

Canadian Street Preacher Acquitted of Noise and Other Charges

Yesterday's Calgary Sun reports on Monday's 90-page ruling by a Canadian Provincial Court judge in Calgary, Alberta. The court acquitted a street preacher on seven charges, finding that six of the charges infringed his rights to free expression and freedom of religion. Judge Allan Fradsham said that the city's response to what began a a noise complaint over Art Pawlowski's activities in Triangle Park bordered on an abuse of power. The preacher was distributing food while using a sound amplification system to preach his religious message. He was charged, and acquitted, on two counts of using amplification without a permit, three counts of placing material on a street without a permit, and a charge of causing unnecessary noise from a vehicle. The court also ruled that a seventh charge of stunting on a roadway while handing out food was not proven.

Cert. Filed In School's Ban of Student Musical Performance At Graduation

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in the case of Nurre v. Whitehead. In the case, the U.S. 9th Circuit Court of Appeals, in a 2-1 ruling, held that school officials did not violate a student's free speech rights when they barred her from performing an instrumental version of Ave Maria at her Everett, Washington high school's graduation ceremony. (See prior posting.) In a press release announcing the filing of the petition for review, the Rutherford Institute expressed its concern that "arts education in the public schools is in danger of being sanitized of any art with remotely religious themes or inspiration." The petition describes the school's action as "political correctness run amuck, with art and student expression sacrificed to a heckler's veto...."

Israel's Justice Minister Creates Controversy With Comments on Religious Law

A speech given on Monday by Israel's Justice Minister Yaakov Neeman, calling for incorporating more of Jewish law into Israeli civil law, has set off a firestorm of protest in the country. According to Haaretz, the speech was given at the opening session of the organization Halichot Am Israel, a group that wants to make Jewish law part of Israel's civil justice system. There is a good deal of dispute over exactly what Neeman intended when he said "step by step, Torah law will become the binding law in the State of Israel." Statements later by Neeman and the Justice Ministry say he intended merely to speak in general terms about the importance of Jewish law to the life of the country, and apparently backed giving Rabbinical courts jurisdiction over financial disputes to help relieve the backlog of cases in the civil courts. (Haaretz). However political opponents called for his resignation, accusing him of promoting "Talibaization" in Israeli society, and proposing a theocracy in Israel. Yesterday's Jerusalem Post has reactions from numerous political and religious leaders to Neeman's remarks.

Russia's Supreme Court Agrees Jehovah's Witness Publications Are "Extremist"

The Supreme Court of the Russian Federation yesterday upheld a finding by a Rostov-on-Don Regional Court that 34 specific Jehovah's Witness publications (all published in the U.S. or Germany) are "extremist." Forum 18 reports that under the 2002 Extremism Law, the publications will now be added to the Justice Ministry's Federal List of Extremist Material and banned throughout the country. The Supreme Court also upheld the dissolution of the Taganrog Jehovah's Witness Congregation as extremist. The written opinion of the Supreme Court is not yet available. The lower court's opinion claimed that the publications incited hostility toward other religions, urged refusal of blood transfusions and refusal of civic responsibilities. The only appeal that is now available is to the European Court of Human Rights.

Newdow Asks DC Circuit To Eliminate Opening Cry Before His Case Is Heard

The U.S. Court of Appeals for the D.C. Circuit is scheduled to hear oral arguments on Dec. 15 in Newdow v. Roberts, a case which challenged the use of "so help me God" in the oath administered by Chief Justice John Roberts in swearing in President Barack Obama. It also challenged the practice of having clergy deliver an invocation and benediction at the inaugural. On the day of the inauguration, a D.C. federal district court denied a preliminary injunction. (See prior posting.) Yesterday, plaintiff Michael Newdow filed an interesting "Emergency Motion" asking the D.C. Circuit to dispense with the court's usual opening cry-- "God save the United States and this Honorable Court" prior to appellate arguments in the case. (Full text of motion and memorandum in support.) The motion argues:

Appearances are also critical for the judges themselves.... In other words, "federal judges must maintain the appearance of impartiality."... Although perhaps not as flagrant a violation of the Establishment Clause as those violations which underlie this litigation ... the religious opening cry is definitely of a similar species. Inasmuch as the Panel, at this stage of the proceedings, must assume the merits in Plaintiffs' favor, ... the appearance of impartiality is certainly questionable at best when the judges risk independently inflicting what may be yet one more "concrete and particular" injury to the First Amendment rights of those seeking their protection.

[Thanks to Bob Ritter for the lead.]

UPDATE: On Wednesday (12/9), in a one sentence order, a 3-judge panel rejected Newdow's request. (Blog of the Legal Times.) [Thanks to Joel Sogol via Religionlaw for the lead.]

Court Dismisses Suit Over Firing, Invokes Ministerial Exception

In Guerrier v. Southern New England Conference Association of Seventh-Day Adventists, 2009 Conn. Super. LEXIS 2962 (CT Super., Nov. 12, 2009), a Connecticut trial court invoked the ministerial exception doctrine to dismiss a group of tort and contract claims filed by a minister who had been removed by defendant as pastor of Shekinah Haitian Church in Norwich, and told there were no other past openings available. Plaintiff claimed that the motives for his dismissal had no relation to church doctrine, teaching or administration. He alleged they were related to his request for for medical benefits and increased wages and his inquiries regarding improper financial activities by a church member. The court held, however:

For the purposes of the ministerial exception, it matters only that the allegations require an inquiry into the church's reasons for the termination. Though the plaintiff does not allege that he was terminated for reasons of religious doctrine, for example, the defendant may be required to assert reasons of religious doctrine as a defense.

10th Circuit Refuses To Bar Deportation of Mormon To Colombia

In Terreros-Guarin v. Holder, (10th Cir., Dec. 2, 2009), the U.S. 10th Circuit Court of Appeals rejected a Colombian man's attempt to avoid deportation. Francisco Alberto Terreros-Guarin was an early convert to the Mormon Church in Colombia, and served in high-profile roles in the Church. He claimed, among other grounds for asylum and for a stay of his deportation, that because the Mormon Church is identified with the United States, several Mormon Churches in Colombia have been bombed and he has received threats. The court rejected his asylum claim because it was not filed within a year of entering the country. As to his request for a restriction on his removal, the Court agreed with the Board of Immigration Appeal that Terreros-Guarin had not proven that there was a clear probability of persecution on religious grounds if he was returned to Colombia. Yesterday's Mormon Times reported on the decision.

In This Year's Christmas Wars, More Cities Eliminate Religious Displays

This year's "Christmas Wars" seem to be taking a different shape. In past years, typically a government entity permitted a religious display which was then challenged in court. This year, in a number of cases a governmental entity, after researching the law, has changed past practice and removed, or not included, a religious component. (See prior posting.) The most recent example of this arose last night in Maryville, Tennessee. According to yesterday's Knoxville News, the city of Maryville ended its 22-year tradition of having a local radio personality read the Christmas story from the book of Luke as part of the annual "Illumination of the Greenbelt" festivities. City attorney Melanie Davis concluded the reading was not allowed after an inquiry from a concerned resident.

Kenyan Leader Says Noise Regulations Will Be Amended To Assure Right to Worship

In Kenya, Prime Minister Raila Odinga over the week end told a rally that new noise pollution regulations promulgated by the National Environmental Management Authority (NEMA) will not infringe religious freedom. According to today's Daily Nation, Odinga said that the Adhan-- the Muslim call to prayer-- would be exempted from the new noise pollution rules. He also said that Christian preachers should be allowed to continue to use public address systems in their churches. Sheikh Mohammed Dor said Muslims would be watching to see if the Prime Minister's directive is implemented. The exemptions announced by Odinga do not yet appear to be included in the version of the Noise Pollution Regulations (full text) that are posted on the NEMA website. On a related issue, Odinga ruled out removing the provision on Kadhis courts from Kenya's new draft constitution. (See prior posting.)

UPDATE: Kenya's Daily Nation (12/9) reports that Environment Minister John Michuki has promised to make certain that the new noise rules will be implemented. Apparently contradicting the statement by Prime Minister Odinga, Michuki said that no one will be exempted because Kenya is a secular state which is not governed by the rules of religion, but the national Constitution and statutes.

Obama's Talks With Turkey's Erdogan Included Religious Freedom Issues

President Obama yesterday met at the White House with Turkish Prime Minister Tayyip Erdogan. (White House blog.) Before the meeting, the U.S. Commission on International Religious Freedom wrote the president asking him to make freedom of religion an important part of his talks with Erdogan. USCIRF said that while there are some hopeful developments, Turkey continues to apply the concept of secularism in a way that restricts freedom of thought, conscience and religion both for its majority Muslim population and for minority religions. (Full text of letter.) In remarks after his meeting with Erdogan, President Obama said in part:

I complimented the Prime Minister for the steps that he's taken, often very difficult steps, in reintegrating religious minorities and ethnic minorities within Turkey into the democratic and political process, and indicated to him that we want to be as supportive as possible in further steps that he can take, for example, assuring the continuation of the Halki Seminary and addressing the vital needs of continuing the ecumenical patriarchy within Turkey.

8 Rastafariains Mark Decade In Segregation For Refusing to Cut Their Hair

In prisons across Virginia, at least eight Rastafarian prisoners will mark ten years of confinement in segregation cells-- solely because they refuse for religious reasons to cut their hair to comply with prison grooming rules. Yesterday's Richmond Times Dispatch reported that prisoners in segregation are confined to small cells, and are let out only for three showers and five hour-long recreation periods a week. They are allowed one non-contact visit per week and two phone calls per month. While in segregation, they do not earn "good time" parole credits. In 2008, in McRae v. Johnson, the 4th Circuit upheld the application of prison grooming rules to Rastafarian and Muslim inmates, citing hygiene and security considerations. ACLU lawyer Eric Balaban asks: "Why would you use up your valuable space in segregation for these guys?" Former inmate and award-winning author Evans Hopkins plans to ask Virginia governor Tim Kaine to give the Rastafarian inmates some relief.

Supreme Court Grants Review In Hastings Christian Legal Society Case

The U.S. Supreme Court today granted certiorari in Christian Legal Society v. Martinez, (Docket No. 08-1371) (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld the right of University of California's Hastings College of Law to impose its policy against discrimination on the basis of religion and sexual orientation on a student religious group seeking formal recognition. (See prior posting.) Links to all the pleadings in the case are available from the Christian Legal Society website.

UN Climate Summit Will Not Have Christmas Trees

Friday's Copenhagen Post reports that the international summit on climate change that opens in Copenhagen, Denmark today will be religiously neutral. Denmark's foreign minister rejected a sponsorship that would have provided a number of Nordmann fir trees as decorations for the entrance of Bella Center, where the conference is being held. Foreign Ministry spokesman Svend Olling said: "We have to remember that this is a UN conference and, as the centre then becomes UN territory, there can be no Christmas trees in the decor, because the UN wishes to maintain neutrality." [Thanks to Alliance Alert for the lead.]