In World Wide Street Preachers Fellowship v. Town of Columbia, (5th Cir., Dec. 21, 2009), the U.S. 5th Circuit Court of Appeals held that the Town of Columbia, Louisiana is not liable under 42 USC Sec. 1983 for the violation of First Amendment rights of a group of preachers by a town police officer who in February 2005 threatened the group with arrest if they did not disperse. The preachers' group demonstrates along roadways carrying anti-abortion signs, including ones with pictures of aborted fetuses. They had demonstrated in Columbia a number of times without police interference.
There is no respondeat superior liability under Section 1983, so another basis must be found if the town is to be held liable. The court rejected three different bases for liability that were urged by plaintiffs. It concluded that Columbia did not have a custom or practice of applying inapplicable statutes to limit the preachers’ rights to demonstrate because of the graphic nature of their signs; 2) the town did not ratify the police officer's decision to violate the preachers’ rights; and 3) Columbia did not have a policy of failing to adequately train its police officers on the rights of protesters. AP yesterday reported on the decision. (See prior related posting.)
Tuesday, December 22, 2009
Indian Court Orders Participation For Dalit Village In Hindu Festival
In India, the Madras High Court has issued a decision in favor of low caste Dalits who want to be part of the annual festival observed during the Tamil summer month of Aadi in which the diety from the Arulmighu Poottai Mariamman Temple near Sankarapuram is transported on a temple car. The court's decision is the subject of reports today in the Times of India and The Hindu. Controversy began in 2007 when Dalits demanded that the temple car go through their village and temple authorities objected. The temple is under the control of the state's Hindu Religious and Charitable Endowments Department. High Court Justice Chandru said in his opinion: "Our Constitution also envisages equality, which includes special help and care for the weaker and oppressed sections of society, who have been downtrodden for thousands of years." The court ruled that the only constraint on taking the temple car through the Dalit village would be the width of the road. If that is a problem, authorities are to explore the feasibility of using a small car (sakadai) to take the deity through the Dalit colony and then back to the main street.
County Removes Stars and Angels From Its Christmas Trees
In Sonoma County, California, Acting County Administrator Chris Thomas has ordered stars, angels and other religious symbols removed from all Christmas trees in county buildings after a complaint was filed by an activist who has a long history of opposing government use of religious symbols. Yesterday's Santa Rosa (CA) Press Democrat reports that the complaint was lodged by Irv Sutley, a disabled veteran who is an atheist and is chairman of the Sonoma County Peace and Freedom Party. County Administrator Thomas said he was not aware that a star on top of a Christmas tree might be seen as a religious symbol until consulting with county attorneys.
Anglican Priest Sues His Attorney For Malpractice After He Loses Fraud Suit
In 2002, Episcopal Bishop Charles Bennison summarily removed Rev. David Moyer as rector of Good Shepherd Episcopal parish in Rosemont, Pennsylvania on the ground that he had abandoned the communion of the Episcopal Church when he was ordained by the more conservative Traditional Anglican Union. In response, Moyer sued Bishop Bennison for fraud. However Moyer lost his suit when the jury found no fraud had been perpetrated. (See prior postings 1, 2, 3.) Now, according to Virtue Online yesterday, Fr. Moyer is suing the attorney who handled his case against Bishop Bennison for malpractice. Meanwhile Moyer remains rector of Good Shepherd which still pays his salary, as the suit by the Diocese to recover Good Shepherd property and assets goes on.
In his malpractice suit, Moyer claims that his former lawyer, John H. Lewis, Jr., and his law firm, Montgomery, McCracken, Walker & Rhoads, mishandled his deposition and failed to present certain key evidence to the jury. The law firm has counterclaimed alleging that the malpractice suit was brought in bad faith. Attorney Lewis, who had been close friends with Moyer, handled the trial and pre-trial for him pro bono. Now though the law firm's counterclaim includes a claim for $66,000 in unpaid legal fees, apparently for legal work since the trial responding to the lawsuit by the Diocese that is attempting to regain control of Good Shepherd.
In his malpractice suit, Moyer claims that his former lawyer, John H. Lewis, Jr., and his law firm, Montgomery, McCracken, Walker & Rhoads, mishandled his deposition and failed to present certain key evidence to the jury. The law firm has counterclaimed alleging that the malpractice suit was brought in bad faith. Attorney Lewis, who had been close friends with Moyer, handled the trial and pre-trial for him pro bono. Now though the law firm's counterclaim includes a claim for $66,000 in unpaid legal fees, apparently for legal work since the trial responding to the lawsuit by the Diocese that is attempting to regain control of Good Shepherd.
6th Circuit Upholds Deportation To Jordan of Christian Couple, Rejecting Persecution Claims
In Helal v. Holder, (6th Cir., Dec. 17, 2009), the U.S. 6th Circuit Court of Appeals agreed with the Board of Immigration Appeals that a Palestinian Christian couple who are citizens of Jordan are not entitled to withholding of removal from the United States for fear of religious persecution in Jordan. The court held that the harassment and discrimination the couple experienced in Jordan because of their Christian faith did not rise to the level of persecution that the statute requires for withholding of removal. Nor did they demonstrate a likelihood that they would suffer future persecution if returned to Jordan. While there is arguably a pattern of persecuting Christians who have converted from Islam, there is no evidence of similar persecution in Jordan of those who were born as Christians. The couple also failed to show that they were eligible for protection under the Convention Against Torture.
Monday, December 21, 2009
Israel's High Court Finds Alternative To Contempt In Kosher Certification Challenge
In June, Israel's High Court of Justice ordered the country's Chief Rabbinate to issue a kashrut certificate (certifying the business is kosher) to a bakery operated by a Messianic Jew after the Chief Rabbi of Ashdod Yosef Sheinin, withdrew it claiming that the owner could not be trusted to maintain the proper standards of kashrut without enhanced supervision. (See prior posting.) Rabbi Sheinin has still not complied, and Israel's Chief Rabbi Shlomo Amar has asked the Knesset to enact legislation to remove High Court jurisdiction over matters of kashrut. (YNet News 12/13.) This morning the High Court, instead of holding Rabbi Sheinin in contempt, issued an order requiring the Chief Rabbinate to designate another rabbi who will grant the kashrut certificate. (YNet News, 12/21.) The court ordered the certification to be issued within a month. (Arutz Sheva.) [Thanks to Joel Katz, Relig. & State In Israel, for the lead.]
Child Support Fight Over Home Schooling and Catholic Beliefs Back In Appeals Court
In McFarlane v. McFarlane, (OH Ct. App., Dec. 17, 2009), an Ohio appellate court was faced with two questions involving the relationship of parents' religious views to the award of child support. The parties' original divorce action also found its way to the state court of appeals three years ago. (MacFarlane I -prior posting).) (Also see prior related posting.) In that decision, the court affirmed award of child custody to the husband. A central issue in the disagreement between the parents was the wife's claim that her Catholic religious beliefs required that she home school her children. The trial court in awarding custody to the father, also ordered the children be enrolled in a traditional school, rather than home schooled. In the current phase of the case, the court below ordered the mother, whose income is only one-quarter that of the father's because she chose not to work full time, to pay child support to the father, in part because of the added expenses involved in sending children to a Catholic parochial school rather than public school. The Court of Appeals however, reversed on this issue, holding that "it seems unjust and inappropriate to require wife to pay for private schooling when enrolling the children in a traditional school, be it private or public, was clearly not her preference."
A second issue involved the wife's contention that she should be able to show that there was an ongoing agreement between her and her husband that she not work outside the home so she could properly raise her children during her visitation times. The court held that the law of the case required exclusion of this evidence since the court of appeals in the original divorce case held that any claimed agreement flowing from the Catholic marriage ceremony is unenforceable under the statute of frauds since it is an agreement made on the consideration of marriage that is not in writing.
A second issue involved the wife's contention that she should be able to show that there was an ongoing agreement between her and her husband that she not work outside the home so she could properly raise her children during her visitation times. The court held that the law of the case required exclusion of this evidence since the court of appeals in the original divorce case held that any claimed agreement flowing from the Catholic marriage ceremony is unenforceable under the statute of frauds since it is an agreement made on the consideration of marriage that is not in writing.
FLDS Polygamist Gets 33 Years For Sexual Assault On Child
Last Thursday, a jury in Eldorado, Texas last Thursday sentenced FLDS member Allan Eugene Keate to 33 years in prison for sexually assaulting a child. The Salt Lake Tribune last week reported on the conviction of Keate for his "spiritual " or "celestial" polygamous marriage to a 15-year-old girl who gave birth at age 16. The San Angelo Standard Times reports that Keate had given away three of his own daughters in marriage to older men. Keate was one of ten men indicted in November 2008 on charges of sexual assault growing out of illegal marriages to underage girls. AP reports that Keate had six wives ages 17 to 49 in 2007.
Malaysian Coalition Calls For Royal Commission On Religious Issues
In Malaysia, the Pakatan Rakyat (a coalition of three political parties) has formally proposed the creation of a Royal Commission to deal with religious issues, particularly where civil and syariah law overlap. Saturday's Malaysian Insider reported on the coalition's new Common Policy Framework document which defends the dominant position of Islam in Malaysia, but calls for more dialogue between various cultures and religions to promote understanding in the face of increasing religious extremism. It also promises to assure suitable burial places for all religions. The new statement avoids calling for creation of an Islamic state-- a position that has been the contentious policy of one coalition partner, the PAS.
Recent Articles and Books of Interest
From SSRN:
- Konstantinos G. Margaritis, The Freedom of Religion and its Limits in Greece and the Netherlands: A Comparative Approach, (December 15, 2009).
- Justin R. La Mort, The Soundtrack to Genocide: Using Incitement to Genocide in the Bikindi Trial to Protect Free Speech and Uphold the Promise of Never Again, (Interdisciplinary Journal for Human Rights Law, Vol. 4, Forthcoming).
- Michael James O'Connor, Legitimate Defense of Civil Rights or Raw Congressional Power Grab? The Constitutionality of the Freedom of Choice Act, (October 28, 2009).
- Stephen Matthew Feldman, Divided We Fall: Religion, Politics, and the Lemon Entanglements Prong, (First Amendment Law Review, Vol. 7, 2009).
From SmartCILP:
- Nicole C. O'Neal, The Development of Islamic Finance in America: The Future of Islamic Real Estate Investment Trusts, 44 Real Property, Trust & Estate Law Journal 279-297 (2009).
New Books
- Dawinder S. Sidhu & Neha Singh Gohil, Civil Rights in Wartime: The Post 9/11 Sikh Experience, (Ashgate Publishing Group, Dec. 2009).
- Lake Lambert III, Spirituality, Inc.: Religion in the American Workplace, (NYU Press, Dec. 2009).
- Stig Jarle Hansen, Atle Mesoy, and Tuncay Kardas (eds.), The Borders of Islam: Exploring Samuel Huntington’s Faultlines from Al-Andalus to the Virtual Ummah, (Columbia University Press, Nov. 2009).
Sunday, December 20, 2009
Recent Prisoner Free Exercise Cases
In Manning v. Ryan, (9th Cir., Dec. 14, 2009), the U.S. 9th Circuit Court of Appeals upheld dismissal of a prisoner's free exercise claim because plaintiff failed to comply with the trial court's order to serve the remaining defendant with the amended complaint.
In Williams v. Sampson, 2009 U.S. Dist. LEXIS 116438 (ED CA, Dec. 15, 2009), a California federal magistrate judge concluded that an inmate's vague allegations of infringement of religious rights were insufficient for him to move ahead with an equal protection or free exercise claim.
In Black v. Ellsworth, 2009 U.S. Dist. LEXIS 116305 (SD IN, Dec. 11, 2009), an Indiana federal district court found that a Rastafarian inmate's religious needs were not disregarded. The jail chaplain ordered a special diet for him, provided him with a King James version of the Bible and informed him he would be allowed to keep a copy of the Holey Piley if he could secure a copy from someone outside of the jail.
In Dean v. Giles, 2009 U.S. Dist. LEXIS 116355 (MD AL, Nov. 19, 2009), an Alabama federal magistrate judge recommended rejecting First amendment and RLUIPA claims by a Native American inmate who complained that prison barbers cut his hair short in violation of his religious beliefs that required he keep his hair uncut. Plaintiff never told prison officials of his religious beliefs, nor did he object to the haircuts prior to filing this lawsuit. The court said that unintentional interference with religious exercise does not amount to actionable conduct by prison officials. the court also noted that prison grooming policies have repeatedly been upheld by various courts.
In Curry v. Bobby, 2009 U.S. Dist. LEXIS 116887 (ND OH, Dec. 16, 2009), an Ohio federal district court rejected claims by a Rastafarian prisoner in a maximum security facility that his free exercise rights and his rights under RLUIPA were violated when he was denied permission to wear his hair in dreadlocks.
In Johnson v. Boyd, 2009 U.S. Dist. LEXIS 117090 (ED AR, Dec. 15, 2009), an Arkansas federal district court accepted a magistrate's recommendation (2009 U.S. Dist. LEXIS 117071) and permitted an inmate to proceed with his free exercise claim against prison officials only in their individual capacities. Plaintiff claims that, while he was in protective custody, defendants seized his Bible.
In Stearns-Miller v. State of Florida, 2009 U.S. Dist. LEXIS 117663 (ND FL, Nov. 16, 2009), a Florida federal magistrate judge recommended dismissal without prejudice of claims by an inmate that his rights under the 1st Amendment and RLUIPA were violated when prison officials refused to allow him to listen to an audio cassette of the Bible and refused to process of 200 pieces of his mail, some of it to clergymen. Since plaintiff had previously been found at least three times to have filed frivolous litigation, the court, under 28 USC 1915(g) refused to permit he to proceed in forma pauperis.
In Williams v. Sampson, 2009 U.S. Dist. LEXIS 116438 (ED CA, Dec. 15, 2009), a California federal magistrate judge concluded that an inmate's vague allegations of infringement of religious rights were insufficient for him to move ahead with an equal protection or free exercise claim.
In Black v. Ellsworth, 2009 U.S. Dist. LEXIS 116305 (SD IN, Dec. 11, 2009), an Indiana federal district court found that a Rastafarian inmate's religious needs were not disregarded. The jail chaplain ordered a special diet for him, provided him with a King James version of the Bible and informed him he would be allowed to keep a copy of the Holey Piley if he could secure a copy from someone outside of the jail.
In Dean v. Giles, 2009 U.S. Dist. LEXIS 116355 (MD AL, Nov. 19, 2009), an Alabama federal magistrate judge recommended rejecting First amendment and RLUIPA claims by a Native American inmate who complained that prison barbers cut his hair short in violation of his religious beliefs that required he keep his hair uncut. Plaintiff never told prison officials of his religious beliefs, nor did he object to the haircuts prior to filing this lawsuit. The court said that unintentional interference with religious exercise does not amount to actionable conduct by prison officials. the court also noted that prison grooming policies have repeatedly been upheld by various courts.
In Curry v. Bobby, 2009 U.S. Dist. LEXIS 116887 (ND OH, Dec. 16, 2009), an Ohio federal district court rejected claims by a Rastafarian prisoner in a maximum security facility that his free exercise rights and his rights under RLUIPA were violated when he was denied permission to wear his hair in dreadlocks.
In Johnson v. Boyd, 2009 U.S. Dist. LEXIS 117090 (ED AR, Dec. 15, 2009), an Arkansas federal district court accepted a magistrate's recommendation (2009 U.S. Dist. LEXIS 117071) and permitted an inmate to proceed with his free exercise claim against prison officials only in their individual capacities. Plaintiff claims that, while he was in protective custody, defendants seized his Bible.
In Stearns-Miller v. State of Florida, 2009 U.S. Dist. LEXIS 117663 (ND FL, Nov. 16, 2009), a Florida federal magistrate judge recommended dismissal without prejudice of claims by an inmate that his rights under the 1st Amendment and RLUIPA were violated when prison officials refused to allow him to listen to an audio cassette of the Bible and refused to process of 200 pieces of his mail, some of it to clergymen. Since plaintiff had previously been found at least three times to have filed frivolous litigation, the court, under 28 USC 1915(g) refused to permit he to proceed in forma pauperis.
India's Parliament Gets Report Urging Delinking Scheduled Caste Status From Religion
In India on Friday, the Report of the National Commission for Religious and Linguistic Minorities was finally submitted to Parliament. The report of the Commission that is headed by former India Supreme Court Justice Ranganath Misra was originally circulated two years ago, but then disappeared from public view. According to Indian Express, the report's recommendations include delinking Scheduled Caste status from religion and setting aside a 10% quota in educational institutions and government jobs for Muslims, along with 5% for other minorities. Currently Scheduled Caste status is available only to Hindus, Buddhists and Sikhs. The report also calls for continuing Scheduled Caste status for Dalits who convert from Hinudism to other religions. The Times of India has details. The government today said it will examine the report "with all sincerity", but refused to commit to accepting its recommendations. (Times of India.)
2nd Circuit: No Right To Be Free of Selective Immigration Law Enforcement
In Turkmen v. Ashcroft, (2d Cir., Dec. 18, 2009), the U.S. 2nd Circuit Court of Appeals rejected claims by seven Arab and Muslim detainees who were in the United States illegally. The now-deported detainees argued that their period of detention before they were removed from the country was illegally prolonged so the government could investigate whether they were tied to terrorism. As reported by New York Law Journal, plaintiffs' counsel contended that the government used religion and ethnicity as a proxy for suspicion of terrorist activity in deciding to prolong plaintiffs' detention. The Second Circuit, however, dismissed plaintiffs' equal protection claims on qualified immunity grounds. It held that "plaintiffs point to no authority clearly establishing an equal protection right to be free of selective enforcement of the immigration laws based on national origin, race, or religion...."
Two Religious Displays On Their Way To Government Property
While a number of governmental units this year are removing religious displays (see prior posting), there is some movement in the opposite direction. Reports from the Oklahoman and AP indicate that last Thursday the Oklahoma Capitol Preservation Committee voted to implement a law passed by the legislature earlier this year (see prior posting) to place a privately funded Ten Commandments monument on the grounds of the State Capitol. It will be placed on an existing raised walkway on the north side of the building. The Commission chairman said he hoped this would start a long-planned development of that area for additional monuments and sculptures. While the 10th Circuit earlier this year struck down a Ten Commandments display on the grounds of an Oklahoma county courthouse (see prior posting), drafters of the state law hope to avoid a similar fate by calling for a monument identical to the one upheld by the U.S. Supreme Court in 2005 in Van Orden v. Perry.
Meanwhile the Luzerne County, Pennsylvania, Commissioners are working to restore a nativity scene and menorah removed last week from the courthouse lawn after a complaint by the ACLU and Americans United. (See prior posting.) A local Wilkes-Barre law firm is contributing $1000 and offering its legal services free of charge to develop a display that meets constitutional standards by also including non-religious elements. According to yesterday's Wilkes-Barre Citizens Voice, an ACLU staff attorney said: "We applaud the county for wanting to comply with the law and we'll see how they do."
Meanwhile the Luzerne County, Pennsylvania, Commissioners are working to restore a nativity scene and menorah removed last week from the courthouse lawn after a complaint by the ACLU and Americans United. (See prior posting.) A local Wilkes-Barre law firm is contributing $1000 and offering its legal services free of charge to develop a display that meets constitutional standards by also including non-religious elements. According to yesterday's Wilkes-Barre Citizens Voice, an ACLU staff attorney said: "We applaud the county for wanting to comply with the law and we'll see how they do."
Court Refuses To Dismiss Challenge To Graded Released Time Religious Course
In Moss v. Spartanburg County School District No. 7, 2009 U.S. Dist. LEXIS 117744 (D SC, Dec. 17, 2009),a South Carolina federal district court refused to dismiss an Establishment Clause challenge to the released time program for religious instruction that was set up by the Spartanburg County (SC) School District. After finding that parents of school children and the Freedom From Religion Foundation have standing, the court held that plaintiffs had stated a "facially plausible" Establishment Clause claim. Plaintiffs alleged that students attending off-site released time courses get an advantage in competition for state college scholarships and other educational opportunities. Students are given an academic grade for the released time course based on the student's religious status and progress as evaluated by the religious group offering the course. The grades are awarded by a nearby religious high school and then transferred for credit to the student's public high school transcript. This distinguishes the program from the U.S. Supreme Court's decision in Zoraach v. Clauson which upheld a New York released time program. The federal district court however dismissed a second claim by plaintiffs asserting an equal protection violation.
Court OKs Eminent Domain In Cemetery Acquisition for O'Hare Airport Expansion
The Chicago Tribune reports that on Friday, an Illinois state trial court ruled that Chicago can proceed with acquiring by eminent domain the 6.3 acre St. Johannes Cemetery in order to build a new runway at O'Hare Airport. Some 900 known graves will be moved. St. John's United Church of Christ that owns the cemetery says that the beliefs of those buried there call for them to "remain undisturbed until the day of resurrection of Jesus Christ." This is one of the last impediments to beginning construction after a settlement with the village of Bensenville last month. In 2006, the D.C. Circuit rejected a RFRA challenge to the relocation plans. (See prior posting.)
Friday, December 18, 2009
UN General Assembly Passes Defamation of Religion Resolution With Less Support Than Last Year
Today for the fifth year in a row, the United Nations General Assembly passed a non-binding resolution calling for "adequate protection against acts of hatred, discrimination, intimidation and coercion resulting from the defamation of religions, and incitement to religious hatred in general."It also condemns ethnic and religious profiling of Muslims. Reuters reports that the vote was 80 in favor, 61 against and 42 abstentions. The resolution, sponsored by the Organization of the Islamic Conference, has been widely criticized in Western countries as laying a groundwork for overly broad blasphemy laws. Support for the resolution has been declining each year. This year six fewer nations than last year voted in favor of it. Angela Wu of the Washington-based Becket Fund for Religious Liberty said: "The concept of 'defamation of religions' undermines the foundations of human rights law by protecting ideas instead of people, and empowering states instead of their citizens." (See prior related posting.)
U.S. Muslim Groups Express Increasing Suspicion of FBI Activities
A front-page article in today's New York Times reports on the increasing tensions in the U.S. between the FBI and Muslim organizations. A relationship that had been built beginning in 2001 has unraveled after FBI informers have infiltrated mosques to locate those who may be planning terrorist activity. Many Muslims are increasingly concerned that FBI informers may be everywhere, and are more hesitant to volunteer for Muslim charitable groups. Law enforcement officials are concerned that these suspicions may result in loss of an early-warning system against domestic terrorism that has been created.
Irish Court Upholds Regulation of Sale of Mass Cards
RTE News and IOL News report that a High Court judge in Ireland yesterday upheld the constitutionality of Section 99 of the 2007 Charities Act that bans the sale of any Mass card except pursuant to an arrangement with a bishop of the Church or a provincial of a religious order. (See prior posting.) The challenge was brought by Thomas McNally whose business sold 120,000 Mass cards each year under an agreement with a Polish priest in the West Indies until bishops intervened to withdraw approval. McNally paid the priest 3600 Euros per year to say three masses per month for those for whom the Mass cards were purchased. McNally argued that the Charities Act provision is an unconstitutional infringement of his free exercise of religion protected by Article 44 of Ireland's Constitution, and that it infringed the rights of those buying the cards to profess and practice their religion freely. The court concluded that McNally had not shown that in selling pre-signed Mass cards he was engaged in the profession or practice of his religion. The court also concluded that any favoritism to the Church over McNally's business did not constitute prejudicial discrimination.
Court Upholds Executed Prisoner's Religious Objection To Autopsy
In Nashville on Wednesday, a Davidson County, Tennessee, judge ruled that the state must honor the request of executed prisoner Cecil Johnson that no autopsy be performed on his body. According to yesterday's Tennessean, Chancellor Russell T. Perkins ruled that the state had not presented a compelling reason to reject the strong religious objections to an autopsy that Johnson expressed in a letter to the court before his execution by lethal injection. Johnson's wife promised to waive any right to sue the state over the method of execution if the state would forgo the autopsy.
Latino Elected Officials Using Jesus Poster To Encourage Census Participation
USA Today reported yesterday that the National Association of Latino Elected Officials is leading the drive to encourage Latinos to take part in next year's census through the use of a poster depicting Jesus. This will counter efforts by at least one other Latino group that is encouraging Hispanics to boycott the census to protest Congress' failure to liberalize immigration laws. Thousands of the new posters, most of them in Spanish, are targeted at Latino evangelicals. Rev. Miguel Rivera, chairman of the National Coalition of Latino Clergy and Christian Leaders, however, objects to the posters as "blasphemous" and a violation of separation of church and state. The Commerce Department says the government had no role in creating the posters and did not pay for them. The Leadership Conference on Civil Rights that has its own campaign to encourage everyone to be counted in the 2010 Census likes the posters and will produce versions of them in English, Korean, Creole and Vietnamese.
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).
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.)
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."
Thursday, December 17, 2009
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.
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.]
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.]
Wednesday, December 16, 2009
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 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 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.]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.
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:
Today's London Mail reports on the decision.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
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.)
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.
Tuesday, December 15, 2009
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:
NOTE: The original version of this posting inaccurately conflated North Carolina and South Carolina.
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.
Monday, December 14, 2009
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).
Sunday, December 13, 2009
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.
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.
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.]
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.]
Saturday, December 12, 2009
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.
Friday, December 11, 2009
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:
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.
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.
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.
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