Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
Friday, December 25, 2009
Final Defendants Sentenced In Tax Fraud Scheme By Hasidic Rabbi
Appeals Court Affirms Conviction of Street Preacher For Disorderly Conduct
Orthodox Jewish Medics Say Volunteer Fire Company Refused Accommodation
Thursday, December 24, 2009
11th Circuit Hears Oral Arguments In Challenge To Park Rules Limiting Feeding the Poor
2nd Circuit: World Trade Center Recovery Did Not Violate Free Exercise Rights
One of the claims put forward by plaintiffs was that the City's recovery efforts violated their right to the free exercise of religion. The court rejected the claim, concluding that the City's efforts did not target religious beliefs and that the City had a compelling interest in clearing the World Trade Center debris efficiently and economically. The court also rejected plaintiffs' due process claims, holding that they have no property interest in unidentifiable human remains, and that their dissatisfaction with the way the city handled recovery efforts did not rise to the level of a constitutional violation. The court concluded:
On a human level, plaintiffs' claims are among the most compelling we have ever been called on to consider. They have endured unimaginable anguish, and they seek nothing more than the knowledge that their loved ones lie in rest at a place of their choosing. We regret that we cannot bring them solace...The decision was handed down only a week after the court heard oral arguments in the case. The New York Times reported on the arguments.
Police Protect Atheist Sign In Illinois Capitol
At the time of the winter solstice, let reason prevail. There are no gods, no devils, no angels, no heaven or hell. There is only our natural world. Religion is just myth and superstition that hardens hearts and enslaves minds.CBS News reports that William J. Kelly, a conservative activist and candidate for state comptroller, yesterday attempted to take down the sign, but was briefly detained and told to leave the building by Capitol police (who wrote up an incident report) when he turned the sign around so that it was face down. Kelly says the sign constitutes "hate speech" and mocks religion. He says that anyone going to look at the Christmas tree would be confronted by the sign because of its placement. Capitol police say it is their duty to protect any property in the Capitol building. [Thanks to Scott Mange for the lead.]
Rifqa Bary Case Moves Ahead As Her Lawyers Wait For Her To Turn 18
Airline Settles With EEOC Over Failure To Grant Religious Accommodation
County Reverses Order On Removing Stars and Angels From Christmas Trees
Wednesday, December 23, 2009
"War on Christmas" Subsides
Because the furor was media-driven in the first place, media mentions seem as good a metric as any. After 2005, Google Trends shows a continuous decline in searches for and mentions of the "war on Christmas." Media mentions of a "war on Christmas" have fallen steadily as well, according to Nexis: There were 431 articles mentioning it as of Dec. 17, 2006; 187 by that time in 2007; 155 in 2008; and 97 in 2009. Even Fox News, the network that pushed the story in the winter of 2005, has essentially stopped talking about it: At this time in 2005, Fox had aired 80 episodes explicitly referring to the "war on Christmas"; in 2006, there were 24; in 2007, 11; in 2008, five; and three so far this year. The departure in 2008 of Fox News host John Gibson, who penned The War on Christmas: How the Liberal Plot To Ban the Sacred Christian Holiday Is Worse Than You Thought, may have had something to do with it.
As a result, some groups dedicated to secularism and the separation of church and state — the anti-Christmas warriors — have gotten fewer invitations to debate the issue on radio and TV.
Baghdad Conference Focuses On Future of Iraqi Christians
Defendant Gets Light Sentence From Tribal Court For Bald Eagle Act Violation
Obama Gives Christmas Message To Children At D.C. Boys and Girls Club
THE PRESIDENT: I think one thing that's important to remember is that, even though there's a lot of fun at Christmas, you know, you got -- especially when it's snowy like this, so it's pretty outside, you got the Christmas tree, you got the Christmas cookies, you've got presents. You know, I think that the most important thing is just to remember why we celebrate Christmas.
CHILD: I know!
THE PRESIDENT: Do you know?
CHILD: The birth of baby Jesus.
THE PRESIDENT: The birth of baby Jesus, and what he symbolizes for people all around the world is the possibility of peace and people treating each other with respect. And so I just hope that spirit of giving that's so important at Christmas, I hope all of you guys remember that as well. You know, it's not just about getting gifts but it's also doing something for other people....
CHILD: I know why we give gifts to other people.
THE PRESIDENT: Why is that?
CHILD: Because the three wise men gave gifts to baby Jesus.
THE PRESIDENT: That's exactly right.... You know, the three wise men, if you think about it, here are these guys, they have all this money, they've got all this wealth and power, and yet they took a long trip to a manger just to see a little baby. And it just shows you that just because you're powerful or you're wealthy, that's not what's important. What's important is what's -- the kind of spirit you have.
So I hope everybody has a spirit of kindness and thoughtfulness, and everybody is really thinking about how can they do for other people -- treating them well, because that's really the spirit of Christmas....THE PRESIDENT: ...[T]he thing that I want everybody to remember, the most important message I can leave is, is that you guys have so much potential -- one of you could end up being President some day. But it's only going to happen if you stay focused and you work hard in school.... That's the most important thing you can do.
Ethnic Limits For Political Positions In Bosnian Constitution Struck Down By European Court
Attorney Claims Religious Rights of Ft. Hood Shooting Suspect Are Being Infringed
Cuban Cardinal Will Give Christmas Message On State TV
Vatican Will Require Permission For Use of Pope's Name, Photo, Coat of Arms
Tuesday, December 22, 2009
Bishops Continue To Oppose Senate Health Care Bill-- Looking At Why
At issue is nine pages of language (pp. 38-46 of Manager's Amendment) on how abortion coverage will be handled. It provides (1) any state may elect to bar abortion coverage in policies offered through the Exchange in that state; (2) elsewhere each insurance company may decide whether or not its plans will cover abortion services; (3) if a plan does cover abortions, no federal subsidy may be used to pay for that coverage; (4) instead the insurer must collect a separate payment from the insured for that coverage and segregate those funds for use for abortion services.
The Bishops' concern seems to be that under this arrangement, abortion coverage will still be in some policies that receive government subsidies, so long as a separate check is written for the part of the premium applicable to that coverage. Instead, according to a Dec. 14 letter from the Bishops, they want language in the House bill that was proposed as an amendment by Sen. Ben Nelson, but was defeated by the Senate. That language provides that no federal funds could be used "to cover any part of the costs of any health plan that includes abortion coverage." After that loss, Sen. Nelson negotiated the language in the Manager's Amendment and according to AP argued that the differences were "about a staple." By that he means that the disagreement is over whether abortion coverage-- which would be paid for separately in either case-- would be a part of the subsidized policy (not acceptable to the Bishops) or in a separate rider stapled to it (acceptable to the Bishops).
As an aside, the U.S. is not the only country struggling with the abortion issue. Interfax reported yesterday that Russian President Dmitry Medvedev has signed amendments to the country's Federal Advertising Law banning the advertising of abortions in a wide variety of media and locations. Many of the restrictions seem to be aimed at preventing advertising of abortions to minors.
NY Court Upholds Bifurcated Arbitration Procedure By Rabbinical Tribunal
Mexico City Approves Gay Marriage, Adoptions
5th Circuit: Town Not Liable For Police Officer's Infringement of Preachers' Rights
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.)
Indian Court Orders Participation For Dalit Village In Hindu Festival
County Removes Stars and Angels From Its Christmas Trees
Anglican Priest Sues His Attorney For Malpractice After He Loses Fraud Suit
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
Monday, December 21, 2009
Israel's High Court Finds Alternative To Contempt In Kosher Certification Challenge
Child Support Fight Over Home Schooling and Catholic Beliefs Back In Appeals Court
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
Malaysian Coalition Calls For Royal Commission On Religious Issues
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 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
2nd Circuit: No Right To Be Free of Selective Immigration Law Enforcement
Two Religious Displays On Their Way To Government Property
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
Court OKs Eminent Domain In Cemetery Acquisition for O'Hare Airport Expansion
Friday, December 18, 2009
UN General Assembly Passes Defamation of Religion Resolution With Less Support Than Last Year
U.S. Muslim Groups Express Increasing Suspicion of FBI Activities
Irish Court Upholds Regulation of Sale of Mass Cards
Court Upholds Executed Prisoner's Religious Objection To Autopsy
Latino Elected Officials Using Jesus Poster To Encourage Census Participation
Several Governments Decide To Concede On Establishment Clause Challenges
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
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
6th Circuit Denies En Banc Rehearing In Faith-Based Funding Case
Thursday, December 17, 2009
Commentary: My Initial Reactions To the British Decision in the JFS Case
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
Arizona County Jails Will Continue All-Day Christmas Music
Pew Forum Issues New Study On Religious Restrictions Around the World
Court Upholds Application of Clergy-Penitent Privilege For Confession To LDS Bishop
Religious Tolerance Is Dramatically Improved At Air Force Academy
School Excuses Atheist Student From Reading Bible As Literature
Full 9th Circuit Hears Oral Arguments In Establishment Clause Challenge To San Francisco Resolution
New Mexico Court Upholds Human Rights Agency's Finding Against Photographer
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
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
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
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
DC Circuit Hears Oral Arguments In Challege To Inaugural Oath and Prayers
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.)