Religious Parties Likely Banned In Bangladesh

BDNews24 reports on an important constitutional development in Bangladesh. In 2005, a High Court invalidated the Fifth Amendment to Bangladesh's Constitution which was meant to provide constitutional legitimacy to governments in power after the assassination of Bangabandhu Sheikh Mujibur Rahman in 1975. The amendment also, for the first time, permitted religion-based political parties. The Supreme Court stayed the High Court's invalidation after the government sought leave to appeal. However now the government has dropped its request to appeal and the Supreme Court lifted its stay. The Times of India today reports with the new Supreme Court decision, parties will be required to drop "Islam" from their name and may not use religion in campaigning. However there are still two more petitions pending for leave to appeal the High Court's decision. A hearing on those will be held January 18.

Indian Court Delays Start of Shariah-Compliant Investment Company

In India yesterday, the Kerala High Court ordered the Kerala government not to start operations of a proposed Islamic investment company in which the Kerala State Industrial Development Commission would hold 11% ownership. The company is to issue Shariah compliant investment products. Qatar's Peninsula and India's Economic Times today report that the temporary order was issued to permit the court to hear a challenge to the company filed by Janata Party leader Dr. Subramanian Swamy. His complaint argues that government participation in compliance with Shariah amounts to the State Government favoring a particular religion in violation of Articles 14 and 25 of the Indian Constitution. The CEO of the proposed company is required to report to the Shariah Advisory Board. The complaint argues that this means the Board will have some measure of supervision over the proposed company. The complaint also alleges that the proposed investment company violates the Banking Regulation Act of 1949.

Uzbek Court Rejcts Fines But Upholds Convictions of 3 Baptist Officials

Baptist Press yesterday reported that a court in Uzbekistan last month overturned high fines that were levied in October against the president of the Baptist Union, a Baptist Union accountant and a Baptist camp director. However their criminal convictions were left standing, as was the bar on their holding responsible positions in the Baptist Union for three years. The charges against the three of evading taxes and involving children in religious activities without their parents' consent grew out of assemblies held at the Joy Baptist Children's Camp. Some camp parents testified in favor of the three, while one parent who had signed a complaint said it had been dictated to her by prosecutors.

ACLU Enters Agreement With School Board Barring Bible Distribution

The ACLU of Tennessee announced yesterday that it had entered a Settlement Agreement (full text) with Wilson County (TN) school officials under which the schools agree to refrain from permitting the distribution of Bibles to students on school grounds during school hours. A demand letter (full text) was sent to the school board last October after an assembly was held for 5th graders at the district's Carroll-Oakland school. A member of the Gideons spoke, and each row of students was called up to take a Bible. Though their teacher told them it was not required they do so, not surprisingly all the students took a Bible. The parents who complained to the ACLU said their daughter took it only because of peer pressure. Back in their classroom, the teacher instructed students to write their names in their Bibles for their personal use.

Suit Challenges Oregon Law On Mandatory Workplace Meetings, But Not Religious Speech Provision

In Oregon, a business group, Associated Oregon Industries, had filed a federal lawsuit challenging Oregon's Senate Bill 519 that took effect January 1. The new law prohibits employers from firing or penalizing workers who refuse to attend employer-sponsored meetings discussing political issues or candidates, religious matters or union organizing. Plaintiffs object to the law's ban on their calling meetings to rebut union organizing. The complaint (full text) in Associated Oregon Industries v. Avakian, (D OR, filed 12/22/2009), claims that insofar as SB 519 applies to speech regarding whether employees should join a union, the law is pre-empted by the National Labor Relations Act. They also argue that SB 519's restrictions on speech opposing unionization violates their First Amendment free speech rights. Plaintiffs do not challenge the law's ban on forcing employees to listen to religious or other types of political speech. Yesterday's Newberg (OR) Graphic reported on the lawsuit.

In Florida, Quaker High School Teacher Sues Claiming Discrimination

In Ocala, Florida, teacher Ronald Wray has filed suit against the Marion County School Board charging that he was effectively forced to resign from his construction teaching position at Marion Technical Institute because of a hostile work environment. Wray, a Quaker, claims that principal Mark Vianello objected to his religious-inspired black clothing. According to a report yesterday from the Ocala Star-Banner, Wray resigned in 2007 after the principal told him "not to come to school with a Blues Brothers or Johnny Cash look," called him a "nut job," and threatened not to let him walk in graduation because of his dress, among other threats. He says the principal passed him over for a promotion and threatened to blackball him and his wife from other teaching positions. After he resigned, Wray ran for school superintendent position, but lost. His lawsuit alleges violations of Title VII of the 1964 Civil Rights Act. Apparently Wray now teaches at South Fort Myers High School.

Court Says Minister's Breach of Contract Claim Might Be Able To Proceed

In Mundie v. Christ United Church of Christ, (PA Super, Dec. 31, 2009), a Pennsylvania appellate court refused to dismiss at this stage of the litigation a breach of contract lawsuit by a pastor who had been terminated by his congregation's Consistory. The trial court, accepting defendant's First Amendment argument, had held it lacked jurisdiction because the dispute was ecclesiastical in nature. The appellate court, however, held that plaintiff should first be given an opportunity to show that he can prove his case without resort to evidence that would excessively entangle the court with church matters.

Businessman Creates Protest To Swiss Ban on Minarets

Today's Wall Street Journal reports on the attention being given to a protest mounted by a Swiss businessman who strongly disagrees with the result of November's Swiss referendum banning any new construction of minarets. (See prior posting.) In Bussigny, Switzerland, businessman Guillaume Morand quickly constructed an illuminated 20-foot high plastic and wood minaret, attached to the chimney of his shoe store warehouse. Morand said: "The referendum was a scandal. I was ashamed to be Swiss. I don't have the power to do much, but I wanted to give a message of peace to Muslims." The Justice Ministry does not plan to take action against Morand. It says it regards the minaret as a temporary structure. Neither does the town's acting mayor who says this is not really a minaret since it has no connection to a mosque.

Report Details Crimes Against U.S. Christian Churches In 2009

Christian Post reported yesterday that a new report for 2009 on "Crimes Against Christian Organizations in the United States" indicates that there were at least 1,237 crimes committed against Christian churches and ministries in the United States last year. The report issued by the Christian Security Network says that over 700 of the incidents were burglaries.

Orthodox Church In Russia Poised For More Political Involvement

Yesterday's Georgian Daily says that Russian Orthodox Patriarch Kirrill is positioning the Russian Orthodox Church for a greater role in Russian politics. The paper first cites a speech by Kirrill to the Russian Academy of State Service in which he argued that Russia should be judged by its unique values and not by "alien" European criteria-- a position that echos the views of Prime Minister Vladimir Putin. Second, he has strongly criticized Europeans for surrendering their values to "passionate" Muslims. Finally Kirrill signed a new cooperation agreement with the Russian Academy of State Service, pressing the government to aid religious groups according to their relative size. The agreement opens the way for more priests to receive training at the Academy of State Service.

Attorney Hit With Rule 11 Sanctions For Campaign To Recuse Catholic Judge

A Florida federal district court judge has imposed extensive Rule 11 sanctions on attorney Loring Spotler who turned motions to force the judge to recuse himself into a "dogged and relentless" campaign against the judge when the motions were denied. In a group of cases captioned Bettis v. Toys "R" Us, (SD FL, Sept. 30, 2009), Judge William J. Zloch recounted the beginnings of the controversy:

Two years ago, in Sabatier and Bettis, Mr. Spolter claimed that I was a Catholic zealot bent on ruling against women who returned to work after giving birth. He extrapolated as much from the facts that I am Catholic, some of the law clerks I have hired attended Catholic law schools, and I have affiliations with the Federalist Society. Based on these facts, he moved for my recusal from both cases.

A 2007 ABA Journal article explained that the charges grew out of Judge Zloch's ties to Ave Maria Law School and his hiring three law clerks from the school. However they escalated into charges that the Clerk's Office was engaged in a conspiracy to undercut the random assignment of cases to different judges. Judge Zloch concluded in his opinion:

In these collected cases there is no question that Mr. Spolter acted in bad faith, both objective and subjective, when he filed his Motions To Recuse. He filed these Motions knowing they had no basis in fact or law and he continued to defend them in the face of overwhelming evidence of their baselessness.... He did this for an improper purpose: to defame and cast a cloud over the Federal judiciary in relentless pursuit of recusal.

The court imposed $99,140 of defendants' attorneys fees and on Spotler, and fined Spotler an additional $10,000. In addition he suspended Spotler from practice before the federal court for 42 months and referred Spotler to the Florida bar. The ABA Journal yesterday reported on the decision.

South African President Takes 3rd Wife In Zulu Ceremony

South African President Jacob Zuma yesterday married his third wife in a traditional Zulu ceremony, according to the London Guardian. The Zulu tribe practices polygamy by tradition, and it is recognized under South African law. South Africa's Constitution (Sec.31) protects the cultural practices of Zulus and other groups. Zuma's new wife is Tobeka Madiba, described as a socialite from Durban. Zuma apparently has fathered three children with Madiba. The 67-year old Zuma is also planning to add yet another wife before long. Gloria Bongi Ngema, who now works for IBM in Johannesburg and who has a child by Zuma, presented umbondo (gifts) to the Zuma family last week, customarily a precursor to marriage. The Johannesburg Times yesterday reported that Christian Democratic Party leader Rev. Theunis Botha strongly criticized Zuma, saying that Zuma's "alarming return to ancestral worship is a giant step back into the dark ages."

Recent Articles and Book of Interest

From SmartCILP:

• Steven F. Friedell, Some Observations About Jewish Law in Israel's Supreme Court, 8 Washington University Global Studies Law Review 659-700 (2009).


• Jose Gabilondo, Institutional Pluralism from the Standpoint of Its Victims: Calling the Question on Indiscriminate (In)tolerance [Abstract], 21 Law & Literature 387-401 (2009).


• Michael P. Moreland, Universalism and Particularism in Bioethics: Lessons from Theological Ethics [Abstract], 21 Law & Literature 415-430 (2009).


• Johannes Reich, Switzerland: Freedom of Creed and Conscience, Immigration, and Public Schools in the Postsecular State--Compulsory Coeducational Swimming Instruction Revisited, 7 I.Con: International Journal of Constitutional Law 754-767 (2009).


• Nicholas Wolterstorff, Donald A. Giannella Memorial Lecture: Can Human Rights Survive Secularization?, 54 Villanova Law Review 411-420 (2009).


• Constitutional Law Symposium: Global Perspectives on Religion, the State, and Constitutionalism. Articles by Abdullahi Ahmed An-Na'im, Thomas F. Farr, Frank S. Ravitch, Richard W. Garnett, Laura Dudley Jenkins and T. Jeremy Gunn. 57 Drake Law Review 829-984 (2009).


• The Federalist Society Religious Freedom Panel. Religious Liberties: The International Religious Freedom Act. William L. Saunders, moderator; Thomas F. Farr, Richard W. Garnett, IV and T. Jeremy Gunn, panelists. 31 Houston Journal of International Law 469-514 (2009).

The Journal of Church & State, Vol 51, No. 2, Spring 2009 has recently been issued.

Recent Book:

• Jytte Klausen, The Cartoons that Shook the World, (Yale Univ. Press., Sept. 2009).

Virgina Muslim Prison Chaplains Want More State Support

Virginia is one of the few states that does not have its own staff of professional chaplains. Instead it contracts with the Chaplain Service of the Churches of Virginia, a Protestant group, to provide religious programs for inmates of all faiths. The chaplain group receives $780,000 per year from the prison commissary fund to help subsidize its activities. Today's Lynchburg (VA) News & Advance reports that the all-volunteer Muslim Chaplain Service, which for the first time was recently awarded a $25,000 grant from the state, wants more state funding so it can hire more imams to serve prisoners. The Protestant Chaplain Service agrees that more Muslim chaplains are needed to serve the 1,700 to 2,500 Muslims in Virginia prisons and to prevent radicalization through "jailhouse Islam."

Report Says Egypt Court Upholds Ban of Niqab In University Exam Rooms

Reuters and UAE's The National report that yesterday an administrative court in Cairo, Egypt upheld the decision by higher education minister Hany Helal and heads of three universities to bar women from wearing the niqab (full face veil) while taking university exams. The government said that the ban was imposed in part because students (male and female) were taking exams disguised as others by wearing the face veil. Some three weeks ago, ANSAmed reported that a Cairo administrative tribunal had invalidated the ban on the niqab in exam rooms and university areas. (See prior posting.) It is not clear what the relationship is between the two decisions.

A Survey of Law & Religion Casebooks For Law Schools

As the new semester is about to begin, here is a listing of casebooks and teaching materials on law and religion designed for law schools and law students available from major law book publishers (listed alphabetically by author):

• Ariens & Destro, Religious Liberty in a Pluralistic Society, 2d ed., (Carolina Academic Press, 2002).
• Belsky & Bessler-Northcutt, Law and Theology, (Carolina Academic Press, 2005).
• Berg's The State and Religion in a Nutshell, 2d (West Pub., 2004).
• Brownstein and Jacobs's Global Issues in Freedom of Speech and Religion: Cases and Materials (West Pub., 2008).
• Gey, Fonvielle & Hinkle, Religion and the State, 2d ed, (Matthew Bender, 2006).
• Griffin's Law and Religion, Cases and Materials (Foundation Press, 2006) with 2009 Supplement.
• Loewy's Religion and the Constitution: Cases and Materials (West Pub., 1998) with 2002 Supplement.
• McConnell, Harvey & Berg, Religion and the Constitution, 2d ed., (Aspen Publishers, 2006).
• Noonan and Gaffney's Religious Freedom: History, Cases and Other Materials on the Interaction of Religion and Government, 2d ed. (Foundation Press, 2010) (available 4/2010, earlier edition currently available).
• Ravitch's Law and Religion, A Reader: Concepts, Cases and Theory, 2d ed. (West Pub., 2004).
• Volokh's The Religion Clauses and Related Statutes: Problems, Cases and Policy Arguments (Foundation Press, 2005).
  
• UPDATE: Conkle's Constitutional Law - The Religion Clauses, 2d edition (Turning Point Series), (Foundation Press 2009).

Proposed Monument To Secular Government Raises Opposition

Yesterday's Cumberland (MD) Times-News reports on a battle over monuments on public property that has a new twist. Edward W. Taylor Jr., of the Cumberland Historic Cemetery Organization, is objecting to the decision by the Allegany County(MD) Board of Commissioners to allow a monument honoring the U.S. Constitution to be placed on the county court house lawn. It would join a statue of George Washington and a Ten Commandments monument already there. The problem, however, according to opponents is that the new monument will contain an engraving that it was donated by Citizens for a Secular Government. Taylor says that the United States was founded on Judeo-Christian principles, and that the word "secular" should not be included on a monument on public property. He says that backers should place the monument on provate property if they want to put it up. The person behind the new monument to the Constitution is Dr. Jeffrey Davis who, in 2004, led an unsuccessful effort to have the Ten Commandments monument removed from the court house lawn.

British Clergy Want Health & Safety Law Protection

In Britain, clergy are seeking to get legislation to protect their safety in the work place. Today's London Telegraph reports that the Church of England succeeded in 2005 in preventing clergy from being covered by the health and safety laws that protect other employees. Clergy are treated as "office holders" rather than employees. However Unite, the union that represents priests, says that things such as faulty wiring, toppled gravestones and tiles falling off roofs are placing clergy in harms way, as is a lack of security at many vicarages. The government's Department for Business, Innovation and Skills is looking into whether health and safety legislation should be expanded to include clergy.

Hamas Hands Out Islamic Robes To Young Women In Gaza

In Gaza, Hamas in cooperation with the Association of Young Muslim Women is beginning a project to hand out free Islamic robes and veils to young women in secondary schools. Xinhua today reports that the distribution began in two neighborhoods in east Gaza City where 600 robes were distributed. Another 600 will be distributed next week in a central Gaza City neighborhood. A spokesperson for the Association says: "the goal of this project is to disseminate the Islamic dress code and effectively eliminate the wanton behavior." However apparently some of the girls are primarily interested in getting new clothing to replace their worn out clothes that they cannot afford to replace on their own. Hamas' official position is that it is not trying to implement Islamic law in Gaza, but officials in the Hamas government have supported various Islamic virtue campaigns. (See prior

Recent Prisoner Free Exercise Cases

In Peyton v. Felker, 2009 U.S. Dist. LEXIS 120287 (ED CA, Dec. 7, 2009), a California federal district court dismissed, with leave to amend, an inmate's claim that two prison officials retaliated against him after he exercised his First Amendment right to practice his religion.

In Riva v. Secretary of Public Safety, 2009 Mass. App. Unpub. LEXIS 1348 (App. Ct. MA, Dec. 24, 2009), a Massachusetts state appeals court, without reaching the merits, dismissed a claim by a Muslim prisoner who wanted removal of a Nation of Islam chaplain who had been appointed on an interim basis to lead services for Orthodox Muslims. He sought to have a traditional Muslim chaplain appointed, or Muslim inmates lead Friday Jumu'ah services. The court held the wrong parties had been named and that sovereign immunity existed as to a RLUIPA damage claim.

In Howard v. Epps, 2009 U.S. Dist. LEXIS 120182 (SD MS, Dec. 23, 2009), a Mississippi federal district court adopted recommendations of a federal magistrate judge (2009 U.S. Dist. LEXIS 120204, Oct. 30, 2009) and dismissed a complaint by a Rastafarian prisoner that he was not permitted to grow his hair in dreadlocks in accordance with his religious beliefs.

Atheist Group Challenges Ireland's New Blasphemy Law

Ireland's new blasphemy law came into force yesterday. It prohibits intentionally causing outrage among a substantial number of adherents of any religion by publishing or uttering grossly abusive insults to matters held sacred by the religion. Yesterday's London Guardian reported that to challenge the law, a group known as Atheist Ireland published "25 Blasphemous Quotations" on its website. The quotes were from famous figures ranging from Jesus to Mark Twain to Frank Zappa. Atheist Ireland's leader says the group will challenge the blasphemy law through the courts if they are charged under it. Yesterday also was International Blasphemy Day, and Atheist Ireland used the occasion to announce that it was launching a broad-based campaign to both obtain repeal of the blasphemy law and attain a secular Irish Constitution. [Thanks to Scott Mange for a lead on this.]

Danish Cartoonist Who Drew Muhammad Caricature Is Attacked In His Home

In Aaarhus, Denmark yesterday, a 28-year old Somali man broke into the house of cartoonist Kurt Westegaard armed with an axe and a knife, shouting that he wanted to kill the 74-year old Westegaard. Westegaard drew the now-famous caricature of the Prophet Muhammad with a bomb in his turban that was published along with 11 other cartoons in 2005 by the Danish newspaper Jyllands-Posten. The cartoons set off a series of violent demonstrations around the world. (See prior posting.) Today BBC News reports that Westegaard, who was at home with his 5-year old granddaughter, locked himself into a safe room and pressed a special panic button alerting police to the attacker. The suspect, who could not be named under Danish law, tried but failed to break into the safe room and then attacked police with his axe when they arrived. Police shot the suspect outside Westegaard's home. The head of Denmark's intelligence agency says that the attack was "terror related." Apparently the suspect is connected to the radical al-Shabab group in Somalia.

Happy 2010 To Religion Clause Readers!

Dear Religion Clause Readers:

Happy New Year! As we enter 2010, I want to again thank all of you who read Religion Clause-- both long time followers and those who have joined us more recently. With the advent of the Obama administration last January, some readers asked me whether there would continue to be sufficient church-state and religious liberty developments to sustain the blog. I think the past year has shown that this should not have been a concern.

It has been a good year for Religion Clause blog. The site meter shows that the blog has attracted over 672,000 visits since it began in 2005. Approximately 241,700 of these visits were registered in 2009-- a 17% increase over 2008. I continue to seek out additional ways for readers to access Religion Clause. This year I added a feed on Twitter (@ReligionClause). So in addition to the standard method of reading Religion Clause at its URL, you can subscribe to RSS feeds on your favorite RSS reader, subscribe by e-mail, find postings on Lexis through Newstex, log onto Twitter or purchase a subscription to read on your Kindle. Scroll to the bottom of the Religion Clause sidebar to click on various subscription options. One warning however: many of these alternative methods of access do not pick up an item a second time when an Update has been added.

Religion Clause's established format of strict neutrality, broad coverage and links to extensive primary source material has made it a widely-recognized authoritative source for keeping up on church-state and religious liberty developments around the world. I am pleased that my regular readers span the political and religious spectrum. So, while the blog represents a rather substantial investment of time on my part, so long as it continues to serve this unique role, I hope to continue it.

This year, moderating comments has become a more difficult issue. First, I have had a significant increase in robo-generated spam comments. Second, while I attempt to allow a very broad spectrum of views and approaches, I have had to delete some comments that are defamatory, repetitive, hostile, irrelevant or which otherwise impair the blog's usefulness as a neutral resource on legal issues and policy developments. Often I am able to moderate comments several times a day, but sometimes there may be a delay of as much as one or two days in my getting to them.

Finally, I want to thank all of you who send me leads to new developments, or who alert me to needed corrections. These help me assure that coverage is complete and accurate. I read all of your e-mails and appreciate receiving them, even though I cannot always acknowledge them. Normally when I blog on a story sent to me by a reader, I mention the sender. If you do not want me to mention you, I will be happy to honor that request if you let me know when sending me information.

Best wishes for 2010!

Howard M. Friedman

Jordan Seeks Dead Sea Scrolls From Canada Under UN Convention

Invoking the the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, the government of Jordan has asked Canada to seize the portion of the 2000-year old Dead Sea Scrolls that are on display until January 3 from Israel at Toronto's Royal Ontario Museum. Canada, Jordan and Israel have all signed the Convention and its First Protocol. (Signers of Convention, Protocol.) The Convention is aimed at assuring that cultural property is not damaged during armed conflict. Yesterday's Toronto Globe and Mail reports that while the first seven Dead Sea Scrolls were discovered in caves near the Dead Sea in 1947 by Bedouin Arabs and found their way to Israel, the majority of the Scrolls were found in the next seven years in operations supervised by Jordan on land it occupied west of the Jordan River. The thousands of fragments found were taken to the Palestine Archeological Museum in East Jerusalem. When Israel captured East Jerusalem in the 1967 Six Day War, the Israel Antiquities Authority took possession of the Scrolls to conserve and exhibit them at the Israel Museum.

The First Protocol (Art. I, Sec. 2) to the Hague Convention, which has been signed by Canada, Jordan and Israel, is designed to prevent exportation of cultural property during an armed conflict. It requires each signatory:

to take into its custody cultural property imported into its territory either directly or indirectly from any occupied territory. This shall either be effected automatically upon the importation of the property or, failing this, at the request of the authorities of that territory.

Canada's Cultural Property Export and Import Act Sec. 36.1(4), implementing the Convention, provides:

If the government of a State Party submits a request in writing to the Minister for the recovery and return of any cultural property that has been exported from an occupied territory of that State Party and that is in Canada in the possession of or under the control of any person, institution or public authority, the Attorney-General of Canada may institute an action in the Federal Court or in a superior court of a province for the recovery of the property by the State Party.

Israel argues that the temporary loan of the Scrolls for display in Canada does not amount to "exportation" under the Hague Convention, and that the Scrolls, which it says it is merely holding as custodian, are part of the Jewish heritage. Palestinians argue that the Scrolls are also part of their heritage. [Thanks to Vos Iz Neias? for the lead.]

Ex-Indonesian President, Moderate Religious Reformer, Dies

Voice of America reports that former Indonesian president Abdurrahman Wahid (know as Gus Dur) died on Wednesday at the age of 69. In a release issued yesterday, U.S. Commission on International Religious Freedom chair Leonard Leo paid tribute to Dur's interfaith initiatives. He said:

Gus Dur was a renowned religious reformer, a voice of moderation when his country needed it most, and a bridge between Muslims and people of other faiths. His unique voice and perspective will be missed.... His life's mission was to increase religious understanding and reduce religious extremism worldwide. Though the world produces few men of his talents, the mission he lived for should be everyone's goal.

Claims Against Jewish Newspaper Dismissed To Avoid Religious Entanglement

In Abdelhak v. Jewish Press, Inc., (NJ App. Div., Dec. 31, 2009), a New Jersey appellate court dismissed a complaint alleging defamation, invasion of privacy and intentional infliction of emotional distress on the ground that the claims could not be decided without excessively entangling the court in matters of religious doctrine and practice. At issue was a lawsuit by an Orthodox Jewish doctor who was falsely listed by a Jewish newspaper in its "Seruv Listing," a list of men who had been formally held in contempt by a Jewish religious court for refusing to comply with an order to give their wives a Get (Jewish divorce document). (Background.) Plaintiff argued that there cannot be excessive entanglement in violation of the Establishment Clause when the cause of action is secular and the defendants are not religious figures. The court, however, rejected this contention and applied the abstention doctrine, reasoning that:

to evaluate whether plaintiff's reputation suffered any injury, a jury would, of necessity, be required to determine how a Seruv Listing is viewed within the Orthodox Jewish community and whether an Orthodox Jew would be offended by another's refusal to provide a Get. To make that determination, a jury would be obliged to consider the intricacies of Jewish doctrine. Such consideration would require a jury to delve deeply into the importance of giving a Get and the disdain heaped on a man who refuses one.

[Thanks to Bridget Englard for the lead.]

Connecticut School Will Move Graduation Away From Cathedral

The South Windsor, Connecticut, Board of Education has voted to move South Windsor High School's 2010 graduation from the First Cathedral in Bloomfield to the Connecticut Convention Center in Hartford. The move came after Americans United and the ACLU threatened to sue the Enfield school system which also uses the Cathedral, and made preliminary inquiries of South Windsor. (See prior posting.) Wednesday's Hartford Courant reports that the Cathedral has charged fees of $7400 to $8000 for schools to use its facilities. The Enfield school board will consider whether to move its schools' graduations as well when it meets in January.

UPDATE: ACLU announced on Feb. 9 that the Windsor (CT) Board of Education has voted to move its graduation away from The First Cathedral. With this decision, all 5 districts that had been using the church have now decided to hold their ceremonies elsewhere.

Malaysian Court Says Catholic Paper Can Use Term "Allah"

A High Court judge in Malaysia has vindicated the free exercise rights of a Catholic newspaper, The Herald, in an oral opinion handed down today. Bernama and the Wall Street Journal report on the decision that upholds the right of the paper to use the word "Allah" in its Malay-language edition to refer to God. The Home Ministry had banned the paper from using the term, and the paper filed suit to challenge the restriction. (See prior posting.) Judge Datuk Lau Bee Lan held that while Sec. 11(4) of the Malaysian Constitution permits a ban on the use of the term by non-Muslims who are attempting to proselytize Muslims, the Constitutional protections of free expression (Sec. 10) and free exercise of religion (Secs. 11 and 12) permit the paper to use the term in material directed at other Christians. The government had argued that The Herald's online edition can be accessed by Muslims, but the court said that it is enough of a safeguard that the paper is in fact read mainly by Christians. Its main audience is indigenous tribes who converted to Christianity decades ago. The Mandarin, English and Tamil editions do not use the term. The court's decision can be appealed. (See prior related posting.)

UPDATE: The Malay (1/2) reports that the Prime Minister's Department in cooperation with the Home Ministry will appeal the High Court's decision.

UPDATE2: On Jan. 6, the High Court granted the Home Ministry a stay of its order while an appeal is taken to the Court of Appeal. (Outlook India; AP.)

7th Circuit Decides Two RLUIPA Zoning Cases

In World Outreach Conference Center v. City of Chicago, (7th Cir., Dec. 30, 2009), the 7th Circuit issued an opinion in two consolidated appeals involving claims that zoning decisions violated RLUIPA. After concluding that RLUIPA is constitutional, the court initially focused on the City of Chicago's rezoning of a former YMCA building in a way that prevented World Outreach, a religious organization dedicated to providing living facilities to the homeless, from operating it as a community center. The court concluded that World Outreach had not shown religious discrimination, but instead did show that the city discriminated against it in favor of a developer who was a financial supporter of a city alderman. Allegations that the city harassed World Outreach through filing frivolous legal claims states a RLUIPA claim for imposing a substantial burden on the group's free exercise of religion.

In the second case, the court upheld the city of Peoria's classifying as a landmark an apartment building next door to Trinity Evangelical Lutheran Church. This designation prevented the church from tearing down the building in order to build a family life center. The court rejected the Church's RLUIPA claim, holding that the burden on its free exercise is only modest. It can sell the building and use the proceeds to construct a family life center elsewhere in the city. Today's Chicago Tribune reports on the Chicago portion of the opinion.

Remains of 500 Animals From Santeria Rituals Found In Philadelphia House

In Philadelphia on Wednesday, Society for the Prevention of Cruelty to Animals enforcement officers, executing a search warrant, found the remains of more than 500 animals in a home whose most recent occupant was last seen five days ago. CNN reports that officials believe the animals were sacrificed as part of Santeria rituals. Most of the remains were from chickens, but also included dozens of sheep and goats and the remains of two primates-- possibly small monkeys. Also an altar with candles was found in the house. SPCA law enforcement director, George Bengal, said it was not clear if any laws had been violated. It will likely depend on whether the animals were sacrificed inhumanely.

Federal Court Orders New York Kosher Poultry Plant To Shut Down

A New York federal district judge on Tuesday issued a temporary restraining order and preliminary injunction prohibiting further slaughtering at New Square Meats in the village of New Square-- home of the Skver Hasidic sect. The court agreed with the U.S. Attorney's Office that the plant failed to comply with the federal Poultry Products Inspection Act. Various sanitary violations were found at the plant. The poultry slaughterhouse slaughtered more than 355,000 birds in 2008. Almost all of its product is sold through a New Square grocery, Oneg Poultry. Both The Forward and the Lower Hudson Journal-News yesterday report on the court's order, as well as on several other recent controversies involving the Skver sect. (See prior posting.) The Forward quotes Queens College sociology professor Samuel Heilman:

The fundamental question, of course, is what is it about these people that makes it possible for them to, on the one hand, claim to be more religious and pious, and on the other hand, break rules that are non-halachic rules.

He answered that the Skvers, along with other fundamentalist groups, tend to divide the world into "us and them", and feel they can be less concerned in portions of their lives that involve outsiders.

Fired Muslim Workers Denied Unemployment Benefits

In Osman v. JFC, Inc., (MN App., Dec. 29, 2009), the Minnesota Court of Appeals affirmed the denial of unemployment benefits to 22 Somali Muslims who were fired from their jobs at a poultry processing plant after they refused to comply with the company's break policy. They claimed they needed to take breaks at a different time in order to fulfill their religious obligation to perform the Fajr prayer. The court rejected the former employees' argument that they had been promised a floating break. In addition, the court found that their free exercise rights were not infringed by the denial of unemployment compensation because they did not prove that they had a sincere belief that Fajr could only be performed during the first 45 minutes after dawn.

Contributions To Arizona Scholarship Organzations Raise Federal Tax Issues

The Arizona Republic this week explored the question of whether Arizonans are violating federal tax law by taking charitable deductions for certain contributions to private school tuition organizations. Arizona law gives up to a $1000 tax credit per couple ($500 per individual) for contributions to these groups that then grant scholarships to private and parochial school students. Parents cannot make contributions for their own children, but other relatives can. Also a number of parents engage in "swapping", or making contributions for each others children. Tax experts say that it is clearly a violation of federal law to take a federal deduction for a swap contribution, since the gift is being made to benefit oneself. A closer question arises as to contributions accompanied by "recommendations" for scholarship recipients. IRS Publication 526 spells out the rules for which charitable contributions are deductible. Separately, the entire tax credit program is being challenged in court on Establishment Clause grounds. (See prior posting.) [Thanks to Steven H. Sholk for the lead.]

H1N1 Precautions Suspended Religious Activities At Montana Jail

In October, in an attempt to prevent the H1N1 flu virus from infecting inmates, Montana's Missoula Detention Center suspended all face-to-face visits with inmates and suspended religious activities, Alcoholics Anonymous meetings and other functions that rely on outside visitors for the duration of the flu season. Last week in Office of the State Public Defender v. McMeekin, (MT Sup. Ct., Dec. 23, 2009), the Montana Supreme Court issued a writ of mandamus ordering the jail revise its policy so that attorneys can have face-to-face visits with pretrial detainee clients. The non-contact visits that had been provided allowed others to overhear attorney-client conversations. Apparently no one challenged the suspension of religious activities. The jail has changed its policy in response to the state Supreme Court order, but has asked visitors who have not been vaccinated for H1N1 to wear masks and use hand sanitizer.

FLDS Church Asks Utah Supreme Court To Stay Proceedings In Trust Case

The FLDS Church on Monday filed a petition with the Utah Supreme Court asking it to stay all proceedings and orders by the lower court in the long-running case seeking to reform the Untied Effort Plan Trust. The Trust holds communal property in Hildale, Utah and Colorado City, Arizona that belonged to FLDS members. Yesterday's Salt Lake Tribune reports that the move came after trial judge Denise Lindberg sealed all filings relating to the future of the Trust and rejected the Church's efforts to intervene in the case. The Church, known for its belief in polygamy, says that the secular management of the trust under court jurisdiction makes it impossible for members to organize their lives in a communal "Holy United Order" as required by their religious teachings. (See prior related posting.)

Holocaust Survivors' Suit Against Vatican Bank Dismissed By 9th Circuit

In Alperin v. Vatican Bank, (9th Cir., Dec. 29, 2009), the U.S. 9th Circuit Court of Appeals dismissed on sovereign immunity grounds a lawsuit by Holocaust survivors against the Vatican Bank. As explained in an earlier 9th Circuit decision in the case:

A group of twenty-four individuals and four organizations ... claim that the Vatican Bank, known by its official title Istituto per le Opere di Religione, the Order of Friars Minor, and the Croatian Liberation Movement ..., profited from the genocidal acts of the Croatian Ustasha political regime ... which was supported throughout World War II by Nazi forces. That profit allegedly passed through the Vatican Bank in the form of proceeds from looted assets and slave labor. The Holocaust Survivors brought suit in federal court claiming conversion, unjust enrichment, restitution, the right to an accounting, and human rights violations and violations of international law arising out of the defendants' alleged involvement with the Ustasha during and following World War II.

This decision, involving the property claims, concluded that neither the international takings exception nor the commercial activities exception removed this suit from protection under the Foreign Sovereign Immunities Act. AP yesterday reported on the decision.

Court OK's Ban of Creche on Roadway Median

In Satawa v. Board of County Road Commissioners of Macomb County, (ED MI, Dec. 28, 2009), a Michigan federal district court refused to issue a temporary injunction against the County Road Commission's decision to ban a private individual's placement of a nativity scene on the median of a busy Warren, Michigan road. A nativity scene had been displayed on the now-60 foot wide median of the 8-lane road during the Christmas season since 1945. Historical farm equipment is also on display on the median. In December 2008, the Freedom from Religion Foundation complained that the nativity scene's presence and its use of electricity provided by the municipality violates the Establishment Clause. After receiving the complaint, the Road Commission decided that the size of the display, and its proximity to the intersection, created a danger to public safety and ordered it removed because no permit had been issued for the display. In 2009, the Road Commission refused to issue a permit on the ground that this would amount to an unconstitutional endorsement of religion.

Plaintiff sued, claiming that the refusal violates his freedom of expression. (See prior posting.) Observing that this is an "extremely close case," the court analyzed a number of "public forum" cases and concluded that a median in the middle of a busy roadway is not a "traditional public forum." It further ruled that the county has a compelling interest in prohibiting placement of the creche in the median because it may impede sight lines at the intersection. Also if this structure is allowed, the county would have to permit all sorts of displays on road medians, creating safety hazards around the county. At the same time, the alternative of displaying the creche a few hundred yards away on Church property would not create any public safety concerns. Finally, the court concluded that banning of temporary structures on busy road medians would not convey a message of endorsement or disapproval of religion. Yesterday's Detroit News reported on the decision.

Egypt Questioning Reporter On Blasphemy Charges

In Egypt, Saudi journalist Nadine al-Bdair and the editor-in-chief of Cairo's Al Masry Al Youm newspaper, Magdy al-Galad, will be summoned by authorities for questioning today. Maktoob News and Gulf News report that General Public Prosecutor Abdul Majeed Mahmoud ordered the prosecutor of south Cairo to investigate blasphemy charges after the newspaper published an article by al-Bdair arguing that if Muslim men are allowed four wives, then an edict should be issued permitting women to have four husbands. A member of Egypt's Parliament has already filed suit over the article, and some clerics say it is provocative and anti-Islamic.

Virginia Warden Retires Amid Charges of Denying Prisoners Religious Services

AP reported yesterday that Barbara Wheeler, warden at Virginia's Fluvanna Correctional Center for Women, is retiring amid allegations that she segregated masculine-looking lesbians, and that she placed excessive restrictions on inmates' access to religious services. State Sen. Frank Ruff says he is concerned about allegations that lists of inmates who may attend religious services were not adequately updated, that inmates were turned away from church services to punish them for infractions such as their hair being too long, and that all lay chaplain visits to the prison were stopped. Fluvanna is Virginia's largest women's prison, housing some 1,200 inmates.

Concerns About Religious Profiling for Security Arise Again After Flight 253

The foiled Christmas Day bombing attempt aboard a Northwest Airlines flight approaching Detroit has raised the spectre of profiling of Muslim travellers for added airport screening. Today's London Express reports that Prof. Anthony Glees, director of Buckingham University's Centre for Security and Intelligence Studies, called that move an "obvious and rational" method to deter Islamic terrorists from striking British targets, while, at the same time, reducing lines at airport security gates for others. A spokesman for the Muslim Council of Britain said: "The actions of one misguided individual should not tarnish the reputation of the majority. We will let terrorists win if bigotry is allowed to flourish."

According to TPM, over the week end, Rep. Peter King (R-NY), Ranking Member of the House Homeland Security Committee, said on Fox News:

I think there are situations like this where we are afraid of being accused of profiling. The fact is while the overwhelming majority of Muslims are outstanding people, on the other hand 100% of the Islamic terrorists are Muslims, and that is our main enemy today. So while we should not be profiling people because of their religion, at the same time we should not be bending over backwards to somehow keep them off a list.

A press release yesterday from the Council on American-Islamic Relations urged authorities to avoid ethnic and religious profiling.

LAPD, Citing Discrimination, Ends Affiliation of Its Youth Program With Scouts

Since 1962, the Los Angeles (CA) Police Department has operated a program to give youth interested in law enforcement an opportunity to assist the LAPD with certain tasks. Now, according to yesterday's Edge, the LAPD is restructuring the program to end its affiliation with the Boy Scouts Learning for Life Explorer Program. Because the Boy Scouts exclude gays, atheists and agnostics, the Police Commission has decided that affiliation with them conflicts with the city's non-discrimination policy. Police Commissioner Robert Salzman says the new program that begins Jan. 1 will be as good or better than the old one.

Interview With Appellee In Famous Flag Salute Case Is Published

First Amendment Center today publised an account of its recent interview with Marie Snodgrass-- the former Marie Barnett. Marie and her sister were the appellees in the famous 1943 U.S. Supreme Court case of West Virginia State Board of Education v. Barnette that invalidated a West Virginia statute requiring students to stand and recite the Pledge of Allegiance. As a Jehovah's Witness, the girls' father believed that saluting the flag was tantamount to worshipping graven images. When the Barnett sisters-- then 8 and 9 years old-- refused to salute the flag, their grade school teacher was understanding, but the principal was not. He sent them home, and eventually the girls were expelled from school. In a 6-3 decision, the Supreme court decided in the girls favor. In a famous passage, Justice Robert Jackson wrote:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.

The article is part of a series of Interviews with Principals in Supreme Court First Amendment Cases.

Top 10 Church-State, Religious Liberty Developments In 2009

Here are my nominations for the 2009 Top Ten Developments in Church-State Separation/ Free-Exercise of Religion. The choices are based on the long-range implications of the developments on legal doctrines and on future of relations between government and religion. Some of this year's top picks continue trends selected last year. (2008 Top 10.) Others reflect new concerns. I am sure that some readers will disagree with the picks, so I invite your comments. Most of these developments were reflected in a number of Religion Clause postings over the year. Links are to representative posts on the issue.

1. U.S. Catholic bishops are at increasing odds with President Obama over abortion. Very public disputes, sometimes splitting the Catholic community, erupted over Notre Dame's award of an honorary degree to Obama and over the USCCB's insistence on strict language in health care reform bills to limit abortion coverage.

2. Conservative Christian groups mount extensive but unsuccessful attempt to prevent passage of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act.

3. The Freedom From Religion Foundation becomes a major player in pressing for church-state separation by challenging a wide variety of practices, from sectarian prayers at city council meetings, to the tax code's parsonage allowance, to engravings at the U.S. Capitol Visitor Center.

4. The Rifqa Bary case requires Florida and Ohio courts to become involved in run-away teenager's claim that her Muslim father threatens her life because of her conversion to Christianity.

5. U.S. Supreme Court rules that a Utah city can refuse to allow the religious group, Summum, to put up a monument containing its "Seven Aphorisms" in a public park, even though a 10 Commandments monument and other monuments are already there.

6. Britain's new Supreme Court holds that a Jewish school's admissions policy using the traditional Orthodox definition of who is a Jew amounts to ethnic, and therefore racial, discrimination.

7. Courts around the country decide disputes over ownership of property after numerous conservative Episcopal parishes move to Anglican affiliations.

8. South Carolina's attempt to issue state-sponsored "I Believe" license plates is ruled a violation of the Establishment Clause.

9. France convicts Scientology and its leaders of fraud while German court limits tactics of German government against Scientology.

10. A Utah trial court rejects a settlement proposed by Utah's Attorney General in the complicated attempt to reform the FLDS United Effort Plan Trust, while the estate of a deceased leader of the polygamous FLDS Church seeks control of the $120 million trust.

There are at least two other Top 10 lists published this month on religion related stories. You may find it interesting to compare their picks, many of which differ a good deal from mine, though they were using somewhat different criteria. They are Don Byrds' Top 10 Religious Liberty Stories of 2009; and Religion Newswriters Top 10 Religion Stories.

UPDATE: Politics Daily has also published an interesting list of Top 10 Religion/ Politics Stories of '09.

Pending Lawsuit Challenges Favoritism To Catholic School In Use of City Athletic Fields

AP yesterday reported on a lawsuit filed in October in federal district court in Rhode Island claiming that the Pawtucket Office of Parks and Recreation is showing favoritism toward religious schools. The complaint (full text) in Rogers v. Mulholland, (D RI, filed 10/14/2009), alleges that giving exclusive after-school use of two particular public athletic fields for practice by Catholic Saint Raphael's Academy, instead of allowing public schools to also use them, violates the Establishment Clause as well as the due process and equal protection clauses of both the U.S. and Rhode Island constitutions. St. Raphael's Academy is the alma mater of a number of influential city and state officials. An ACLU news release issued when the suit was filed indicates that the city has no written policies on issuing permits to use city athletic fields, leaving the decision in the total discretion of the city's superintendent of parks. [Thanks to Scott Mange for the lead.]

Recent Articles and Books of Interest

From SSRN:

• Todd E. Pettys, Sodom's Shadow: The Uncertain Line between Public and Private Morality, (December 26, 2009).


• Neil James Foster, Freedom of Religion and Discrimination - Two Important UK Cases, (December 23, 2009).


• Legal Studies Research Paper Series, University of Wisconsin, No Altars: An Introduction to Islamic Family Law in US Courts, (December 16, 2009).

From SmartCILP:

• Symposium: The Natural Law in Protestant Political and Legal Thought. Articles by J. Daryl Charles, Michael DeBoer, Daniel R. Heimbach, Michael V. Hernandez, H. Wayne House, Mark Liederbach, Donald R. McConnell, Gilbert C. Meilaender, John Warwick Montgomery, Peter Judson Richards, Joe M. Sprinkle, Max L. Stackhouse, David VanDrunen and Ronald J. Wright. 2 Liberty University Law Review 607-995 (2008).


• Fr. Evaldo Xavier Gomez, Church-State Relations from a Catholic Perspective: General Considerations on Nicolas Sarkozy's New Concept of Laicite Positive, 48 Journal of Catholic Legal Studies 201-217 (2009).


• Piero A. Tozzi, Whither Free Exercise: Employment Division v. Smith and the Rebirth of State Constitutional Free Exercise Clause Jurisprudence?, 48 Journal of Catholic Legal Studies 269-301 (2009).

Recent and Forthcoming Books:

• David A. J. Richards, Fundamentalism in American Religion and Law : Obama's Challenge to Patriarchy's Threat to Democracy, (Cambridge University Press, Feb. 2010).


• Donald L. Drakeman, Church, State, and Original Intent, (Cambridge University Press, Nov. 2009).

U.S. Missionary Crosses Into North Korea, Complicating Diplomacy

Robert Park, a Korean-American missionary from Arizona has likely complicated U.S. negotiations with North Korea by illegally crossing into North Korea carrying a letter addressed to the country's ruler Kim Jong-il. Park is seeking release of the 160,000 political prisoners held are in concentration camps. Yesterday's New York Times reported that Park crossed into North Korea from China on Christmas Day by way of a frozen river near the North Korean city of Hoeryong. He repeatedly shouted in Korean: "I am an American citizen. I am coming here to deliver God's love. God loves you." Park says he will not leave until North Korea shuts down its camps. He wants to become a martyr. In a videotape he left, he said he does not want President Obama to buy his freedom.

UPDATE: North Korea announced on Dec. 29 that it has custody of an American who crossed into the country illegally on Christmas Eve. Apparently this is Robert Park, whose uncle says this is good news because it means Park was not executed. (CP).

Catholic Church Says Historic Designation of Building Infringes Its Rights

The Roman Catholic Diocese of Springfield, Massachusetts says that its First Amendment rights are threatened by the city's move to declare Our Lady of Hope Church an historic district. The Springfield Republican reports today that a final vote on the proposal, already approved by the Historical Commission and by a preliminary vote in City Council, is scheduled for Tuesday. The Italian Renaissance style church will close Dec. 31, as the parish is being merged. However some members petitioned for the historic designation to save the distinctive building erected by Irish immigrants in 1925. The diocese says the designation will make it more difficult to sell or redevelop the building, and questions whether one building alone can be declared an historic district. If the designation is approved, no changes to the exterior of the building could be made without Historical Commission approval.

Recent Prisoner Free Exercise Cases

In In re Taylor, (Cal. 1st App., Dec. 21, 2009), a California state appellate court held that RLUIPA claims may be brought in state court, and that a habeas proceeding may be used to raise the claim. On the merits, however, the court rejected an inmate's claim that prison rules limiting him to purchasing no more than 4 ounces of religious oils each three months imposed a substantial burden on his free exercise of religion. Any burden is also justified by the state's compelling interest in safe management of its maximum security prisons.

In Oliverez v. Albitre, 2009 U.S. Dist. LEXIS 118555 (ED CA, Dec. 2, 2009), a California federal magistrate judge allowed an inmate to move ahead with his free exercise claim that the prison's
Native American Spiritual Leader failed to provide him with the prayer oil he ordered.

No "Necessity" Defense In Trial of Accused Killer of Abortion Doctor

On Tuesday, a state trial court judge in Wichita, Kansas, held that Scott Roeder, the accused murderer of abortion doctor George Tiller, will not be permitted to assert the defense of "necessity" at his trial that will begin next month. Yesterday's Christian Post reported that the judge said while he might permit Roeder to argue that he believed he was saving the lives of fetuses, he will not permit Roeder to assert the defense that he broke the law to prevent a greater harm.

Court Rejects Free Exercise Defense To Bald Eagle Act Prosecution

In United States v. Bertucci, 2009 U.S. Dist. LEXIS 119228 (D NE, Dec. 22, 2009), a Nebraska federal district court accepted the recommendations of a federal magistrate (2009 U.S. Dist. LEXIS 119230, Nov. 25, 2009) and denied a motion to dismiss charges under the Bald and Golden Eagle Protection Act that had been brought against defendant. Defendant, a member of the Omaha Tribe and the Native American Church, claimed that the charges violated his free exercise rights under the Religious Freedom Restoration Act. Without a permit, he killed two bald eagles to use in a feathering ceremony for his children that he wished to conduct while his grandfather was still alive. Eagle parts are available to members of recognized tribes from the National Eagle Repository. The court held:

[T]he repository and permit processes, while arguably inconvenient, do not impose a substantial burden on the defendant's right to practice his religion. The evidence established that a tribal member would have to wait ninety days to six months for delivery of feathers from the repository. This moderate delay does not deny the defendant a reasonable opportunity to practice his religion. Alternatively, the court finds that even if the Eagle Protection Act imposed a substantial burden, the government has met its burden to show that the repository and permit process are the least restrictive means to further the government's compelling interest in protecting and preserving the bald eagle population.

Catholic Hospitals Group Differs With Bishops On Senate Health Insurance Language

The New York Times reported yesterday that a Dec. 17 statement (full text) by the Catholic Health Association, which represents hundreds of Catholic hospitals across the country, apparently signals a split with the U.S. Conference of Catholic Bishops on the abortion language in the U.S. Senate's version of the health reform bill. (See prior posting.) The statement, issued before the final language of the bill was released, said that the hospital group was "increasingly confident that Senator Casey's language can achieve the objective of no federal funding for abortion." Scholars say the difference reflects differing views on whether "remote cooperation" was permissible in order to achieve a moral imperative of health insurance for millions of more Americans.

UPDATE: Catholic Health Association has told CNS 12/28 that the New York Times is wrong. There is not a split between CHS and the Bishops.

Federal Court Enjoins Illinois Hike In Fees For Lobbyists, Partly on Establishment Clause Grounds

In American Civil Liberties Union of Illinois v. White, 2009 U.S. Dist. LEXIS 119476 (ND IL, Dec. 23, 2009), an Illinois federal district court issued a temporary restraining order and preliminary injunction against enforcement of Illinois amended Lobbyist Registration Act. At issue were large increases in registration fees that were scheduled to go into effect January 1. ACLU alleged 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. It also claimed that the exemptions in the law for media lobbyists and lobbyists for churches and religious organizations amount to speaker-based discrimination as well as a violation of the Establishment Clause. (See prior posting.) Finding that the federal Tax Injunction Act does not divest the court of jurisdiction over the suit, the court held that the ACLU had demonstrated a reasonable likelihood of success on the merits:

[T]he ACLU has proffered figures derived from public records showing that the LRF has run an approximately $ 100,000 surplus for the last two fiscal years, during which the Secretary collected lobbyist registration fees one-third as large as the fees authorized in the Amended Act. .... These surpluses suggest that the Secretary may be unable to show that the three-fold increase in the lobbyist registration fee adequately relates to the costs of administering the Amended Act....

Moreover, on its face the statute appears to privilege religious over non-religious speech. The ACLU is therefore also likely to prevail on its claim that the Amended Act's exemptions for religious organizations and the newsmedia impermissibly discriminate against the ACLU based on the content of its speech. Indeed, by only exempting religious speakers who are "full-time employees of a religious organization" and who speak to the legislature about "protecting the right of the members [of that organization] to practice the religious doctrines of that church or religious organization" the statute also requires another content-based determination focused on religious speech.....

The ACLU's likelihood of success on its establishment clause challenge is equally plain..... On its face the content based determinations discussed above require the state to set the boundaries of a religious organization's exempt advocacy by inquiring into what the doctrines of a church or religious organization are and how the lobbying activities promote them. Requiring such an examination is likely to violate the establishment clause by fostering excessive government entanglement in religion....

Queen Elizabeth Delivers Christmas Speech

Britain Queen Elizabeth II's 2009 Christmas Speech was broadcast today (full text). In it, she focused on the entire Commonwealth. She said in part:

Each year that passes seems to have its own character. Some leave us with a feeling of satisfaction, others are best forgotten. 2009 was a difficult year for many, in particular those facing the continuing effects of the economic downturn....

It is 60 years since the Commonwealth was created and today, with more than a billion of its members under the age of 25, the organisation remains a strong and practical force for good....

We know that Christmas is a time for celebration and family reunions; but it is also a time to reflect on what confronts those less fortunate than ourselves, at home and throughout the world. Christians are taught to love their neighbours, having compassion and concern, and being ready to undertake charity and voluntary work to ease the burden of deprivation and disadvantage. We may ourselves be confronted by a bewildering array of difficulties and challenges, but we must never cease to work for a better future for ourselves and for others.

The London Telegraph's coverage of the speech links to a video of it.

President Obama and First Lady Send Christmas Greetings

In a joint remarks released yesterday (full text), President Obama was joined by First Lady Michelle Obama to offer Christmas wishes to families across the country. Much of the address (billed as the President's Weekly Address) was directed to the American military and their families, offering thanks and support to them. The President reminded all Americans that:

even in these tough times, there's still so much to celebrate this Christmas. A message of peace and brotherhood that continues to inspire more than 2,000 after Jesus' birth. The love of family and friends. The bonds of community and country. And the character and courage of our men and women in uniform who are far from home for the holidays, away from their families, risking their lives to protect ours.

Final Defendants Sentenced In Tax Fraud Scheme By Hasidic Rabbi

According to a press release issued Monday by the U.S. Attorney's Office in Los Angeles, a California federal district judge has sentenced Grand Rabbi Naftali Tzi Weisz, the Brooklyn, New York, Grand Rabbi of Spinka, to two years in prison for orchestrating a money-laundering tax evasion scheme. Weisz plead guilty last summer to a criminal conspiracy charge (see prior posting), admitting to a scheme in which several of his charitable organizations solicited donations with secret promises to refund large percentages of the donations back to donors who deducted the entire amounts on their tax returns. A pre-sentence report concluded that this practice among certain Hasidic sects has resulted in hundreds of millions of dollars of unreported income. The final defendant in the case, Yaacov Zeivald, was sentenced to 4 months in prison for his part in the fraud. Five others have already been convicted and sentenced in the scheme.

Appeals Court Affirms Conviction of Street Preacher For Disorderly Conduct

In Commonwealth v. Marcavage, (MA App., Dec. 23, 2009), a Massachusetts Appeals Court upheld the conviction of a street evangelist who was arrested on Halloween night, 2007, in the city of Salem and charged with disorderly conduct under M.G.L., Ch. 272, S.53. Michael Marcavage, director of a proselytizing group, visits Salem every Halloween to preach to the crowds that gather there to celebrate. Many in the crowd complained about Marcavage waving a Bible too close to them. Eventually a police officer ordered Marcavage to stop using a megaphone. He resisted confiscation of the megaphone, argued, and then went limp. He fell into a fountain, bringing police officers to the ground with him. He was then arrested. The court affirmed his conviction, finding that his conduct amounted to "tumultuous behavior". It said: "we find nothing in the record to support the inference that the decision to curtail the defendant's use of the megaphone was in any way connected with the content of his speech."

Orthodox Jewish Medics Say Volunteer Fire Company Refused Accommodation

According to yesterday's Baltimore Sun, three medics who are Orthodox Jew, have filed complaints with the Maryland Commission on Human Relations and the U.S. EEOC, complaining that the Pikesville Volunteer Fire Co. has been unwilling to permit them to ride on emergency calls. The fire company says that the men's religiously mandated (but short-trimmed) beards might interfere with breathing masks that the Pikesville department was considering buying for its medic corps. However, according to one of the medics, Matthias Goldstein, medics have never been required to wear the masks. The three men say that the real reason for the refusal is Pikesville Volunteer Fire Company's resentment over their involvement with Hatzalah-- a competing volunteer rescue organization organized by Orthodox Jews in neighboring Northwest Baltimore. There have been conflicts between the two groups when Hatazalah responds to a call near or over the county line. A Pikesville spokesman denies the charge, and says this is purely a safety issue.

11th Circuit Hears Oral Arguments In Challenge To Park Rules Limiting Feeding the Poor

Last Thursday, the U.S. 11th Circuit Court of Appeals heard oral argument in First Vagabonds Church of God v. City of Orlando. In the case, a Florida federal district court found that Orlando's Large Group Feeding Ordinance violates the speech rights of an activist group that feeds the poor and infringes the free exercise rights of a church that holds Sunday services, including the sharing of food, in a downtown city park. The Ordinance requires a permit to feed more than 25 people in any downtown park, and limits a group to two permits per park in a 12 month period. (See prior posting.) According to the Fulton County Daily Report, at last Thursday's oral argument, two of the judges on the panel expressed some skepticism over the district court's holding. However Judge Rosemary Barkett sharply questioned the city's lawyers, asking whether the food distribution actually put a burden on the parks.

2nd Circuit: World Trade Center Recovery Did Not Violate Free Exercise Rights

In World Trade Center Families for Proper Burial, Inc. v. City of New York, (2d Cir., Dec. 23, 2009), the U.S. 2nd Circuit Court of Appeals rejected an attempt by families of 9/11 victims to force New York City to reclaim the finely-sifted residue of the World Trade Center debris now at the City's Fresh Kills landfill in Staten Island and move it to a more suitable location, and to create a cemetery for the 1,100 who perished without identifiable remains. They argue that the sifted residue itself has become hallowed.

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

Next to the Christmas tree and near a nativity scene in the Illinois State Capitol Building, the Freedom From Religion Foundation has placed a sign reading:

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

There have been new developments in the case of Rifqa Bary, the Ohio teenager who fled from her parents' home to a pastor in Florida, saying she feared her father would kill her because she had converted from Islam to Christianity. The 17-year old girl is now in foster care in Ohio. The Christian Science Monitor reports that an Ohio judge has approved a recommendation by an Ohio Children's Services Board caseworker (see prior posting) that calls for Rifqa and her family to discuss their views of religion with each other as a first step toward reunification. However the judge did not order the girl and her parents to meet face-to-face. Rifqa's lawyers want her to remain in foster care until she turns 18 and is legally entitled to make her own decisions. On Tuesday, the parents' lawyer also withdrew a motion they had filed seeking to have Christmas cards that were being sent to Rifqa screened by social workers. (See prior posting.)

Airline Settles With EEOC Over Failure To Grant Religious Accommodation

Yesterday's Twin Cities Pioneer Press reports that Mesaba Airlines (a subsidiary of Delta) has settled a religious discrimination lawsuit brought by the EEOC. A federal district court judge in Milwaukee on Tuesday approved a $130,000 settlement in the suit brought on behalf of five individuals who were refused accommodations of their religious beliefs. The consent decree will also require monitoring and training. The suit was initially filed on behalf of former customer-service agent Laura Vallejos was fired when she refused to work on the Jewish Sabbath. Subsequently the EEOC identified four Christians who were refused customer service jobs because they wanted time off to attend Sunday church services. Mesaba has since dropped its "no shift swap" policy and also no longer employs customer service agents.

County Reverses Order On Removing Stars and Angels From Christmas Trees

Bowing to a storm of criticism from around the world, Acting Sonoma County (California) Administrator Chris Thomas yesterday rescinded his request that stars and angels be removed from Christmas trees in county buildings. (See prior posting.) The original ban was put in place after a complaint by an activist who has a long history of opposing government use of religious symbols. According to yesterday's Santa Rosa (CA) Press Democrat, Administrator Thomas now says that county employees should just use their best judgment as to appropriate decorations in public spaces. Thomas said his original decision was based on concerns that the county would be seen as endorsing a particular religion, but he changed his mind after a conversation with County Supervisor Shirlee Zane convinced him that there were varying opinions on whether that was the case. Meanwhile, Barry Collins, a trial attorney in the Public Defenders Office, had put up a Christmas tree with a star in the lobby of his building to protest Thomas' ban. Collins is Jewish, but says he does not believe the star is a religious symbol. He contends it is symbolic of American tradition, like stars on the American flag. He points out there is a star on the White House Christmas tree. The entire issue will be discussed a a future county supervisors' meeting.

"War on Christmas" Subsides

An interesting article in Canada's National Post yesterday documents the reduced intensity of the this year's "War on Christmas" in the United States:

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

AINA this week reported on a conference held in Baghdad on Dec. 11-12 to discuss the future of Iraq's Christian community. Attended by over 120 leaders of Christian groups and former and current government officials, the conference made dozens of recommendations, mostly to the government of Iraq, but some to Kurdistan, the UN, the international community and Iraqi Christians themselves. The recommendations (set out in the AINA report) ranged from urging Iraq's federal government to provide greater security for Christians and other minorities to urging Christian satellite channels to refrain from programming that encourages Christians to leave for Western countries.

Defendant Gets Light Sentence From Tribal Court For Bald Eagle Act Violation

As previously reported, the long-running prosecution of Winslow Friday, a member of the Northern Arapaho Tribe, charged with killing a bald eagle so he could use it in his tribe's Sun Dance, was transferred to a tribal court. In the case, the 10th Circuit rejected Friday's challenge to the Bald and Golden Eagle Protection Act, and the Supreme Court denied cert. AP reports that yesterday Winslow Friday pleaded guilty in a Shoshone and Arapaho Tribal Court on the Wind River Indian Reservation in Wyoming. He was fined $2500 and his hunting privileges on the reservation were suspended for a year. In federal court, Friday faced a possible sentence of a year in jail and a $100,000 fine. Those charges will now be dismissed.

Obama Gives Christmas Message To Children At D.C. Boys and Girls Club

On Monday, President Obama visited a Boys and Girls Club in Washington, D.C. and gave the children present a largely religious-themed message about Christmas. The White House has posted his remarks and the response by the children listening. Here is part of it:

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

Yesterday the European Court of Human Rights in Sejdic and Finci v. Bosnia and Herzegovina ruled that the provisions in the Bosnian Constitution that limit seats in the lower house of Parliament, and the country's Presidency to Bosniacs, Croats and Serbs violate the European Declaration of Human Rights and the Convention for the Protection of Human Rights and Fundamental Freedoms. A press release by the Court reporting on the decision says the arrangement, growing out of the 1995 Dayton Peace Accords, violates the anti-discrimination provisions of Art. 14 of the Declaration taken together with Art. 3 of Protocol No. 1 (right to free elections),as well as Art. 1 of Protocol 12 of the Convention. The case was brought by two public figures, one a Roma and the other who is Jewish, challenging the ethnic restrictions. JTA reported on the decision.

Attorney Claims Religious Rights of Ft. Hood Shooting Suspect Are Being Infringed

According to Monday's San Antonio Express News, the attorney for accused Ft. Hood shooter Maj. Nidal Malik Hasan says that his client's free exercise rights are being infringed. The Muslim psychiatrist who is charged with killing 13 is subject to pre-trial conditions that require him to speak only in English with his visitors at Brooke Army Medical Center or in phone calls, unless an Army-approved translator is present. Invoking this, police guarding Hasan cut short a Friday telephone conversation he was having with his brother. Lawyer John P. Galligan says that Hasan was praying from the Qur'an in Arabic in the phone call that was cut short.

Cuban Cardinal Will Give Christmas Message On State TV

AP reported yesterday on a new sign of the improving relationship between the government of Cuba and the Catholic Church. For the second year in a row, Cuban Cardinal Jaime Ortega will read a Christmas message on state television. His message will include thanks for the U.S.'s recently loosened restrictions on Cuban-Americans who want to send money or travel to Cuba. Slow improvement in relations between the government and the Church began in the early 1990's.

Vatican Will Require Permission For Use of Pope's Name, Photo, Coat of Arms

Zenit reports that the Vatican issued an announcement Saturday indicating that the Holy See will be taking steps to protect its intellectual property rights in the name, picture and coat of arms of Pope Benedict XVI. The Vatican Press Office said that "the use of anything referring directly to the person or office of the Supreme Pontiff -- his name, his picture or his coat of arms -- and/or the use of the title 'Pontifical,' must receive previous and express authorization from the Holy See." The Vatican is particularly concerned with "use the Pope's name in the title of universities, schools or cultural institutions, as well as associations, foundations and other groups." [Thanks to Scott Mange for the lead.]