Pennsylvania Court Rejects Catholic Day Care's Challenge To Licensing Rules

In St. Elizabeth's Child Care Center v. Department of Public Welfare, (PA Comnwlth. Ct., Jan. 7, 2010), a Pennsylvania state appellate court rejected free exercise challenges by a Catholic child day-care center to the requirement that it obtain a state certificate of compliance in order to operate. St. Elizabeth's argued that state regulations would significantly burden its religious mission to assist parents in raising their children and forming in them a Christian personality. The court concluded, however, that St. Elizabeth's had "failed to identify any actual or imminent infringement" on its rights.

Prop 8 Trial Begins Monday With Dispute Over Televising of Proceedings

In San Francisco tomorrow, the federal district court trial challenging the constitutionality of California's Proposition 8 barring same-sex marriage begins. (See prior posting.) Invoking a policy change instituted by the Ninth Circuit in December, the district court is permitting limited televising of the trial. Proceedings will be taped by court personnel and will be posted on YouTube at the end of the day. Intent on keeping the taping under the control of court personnel, Chief Judge John Walker rejected an offer by In Session (formerly Court TV) to broadcast the trial live. (The Recorder, 1/7.) Proponents of Proposition 8 are unhappy fearing intimidation of witnesses by same-sex marriage backers. Their appeal to the 9th Circuit of the district court's order permitting televising of the proceedings was denied by the appeals court on Friday. (Mercury News, 1/8.) Proposition 8 backers quickly filed an appeal with U.S. Supreme Court Justice Anthony Kennedy who has given the other side until noon today to respond. (New York Times, 1/9).

UPDATE: Justice Kennedy referred the appeal on broadcasting of the trial to the full court. On Monday the Court stayed the trial court's order thereby temporarily banning streaming of the proceedings to other court houses as well as any wider broadcasting of the proceedings. The stay remains in effect only until Wednesday to giver the Court more time to examine the issue. Justice Breyer dissented urging further consideration of the issue without a stay being imposed. (Order in Dennis v. Kristin, Sup. Ct., Jan. 11, 2010.) (CBN reports on the Supreme Court's action.)

Study Shows Faith-Based Initiative Increased Interest, But Not Social Services By Congregations

An interesting post at Call & Response blog yesterday by Duke University Prof. Mark Chaves, Director of the National Congregations Study, analyzes the actual impact of President George W. Bush's Faith-Based Initiative on religious congregations. He concludes that:

data from 1998 and 2006-07 show that neither the overall percent of congregations that report social services (82% in 2006), nor the percent with a staff person devoting at least quarter-time to social services (11%), nor the percent who received government funding (4%), have increased since 1998. Not even the level of collaboration (whether or not money is involved) between congregations and government or secular nonprofit organizations increased.....

Despite this stability in congregational social service activity, ... congregational interest in social services increased since 1998. The number of congregations that would like to apply for government money to support social service programs increased from 39% in 1998 to 47% in 2006-07. The number of congregations who hosted a speaker from a social service organization increased from 22 to 31%. And the number who recently conducted a community needs assessment jumped from 37 to 48%. These are impressive increases, probably representing an increased level of congregational interest in social services generated by media attention to faith-based initiatives and by the mistaken belief by some congregational leaders that there would be government money specifically set aside to support congregations’ human service activities.

More data for the National Congregations Study is in the June 2009 Report titled: American Congregations at the Beginning of the 21st Century. ABP News also reports on Chaves' conclusions.

Many Issues of Religon and Human Rights Remain In Latest Kenya Draft Constitution

Kenya is in the complex process of drafting and adopting a new constitution. (See prior posting.) The public comment period on the Committee of Experts' draft expired Dec. 15. It was supposed to be redrafted taking the comments into account, forwarded to the Parliamentary Select Committee on the Constitution, and then forwarded to the National Assembly which is to hold a referendum on it. (Sunday Nation 12/11/09). However today's Sunday Nation reports that the redraft forwarded to the Parliamentary Select Committee does not reflect some of the changes to the Bill of Rights proposed by churches, civil society organizations and human rights lobbies. Issues still remain over the document's language on abortion, its provisions on Islamic law, issues of family, of same-sex marriage, protection of religious institutions that wish to hire on the basis of religion, protection of children and the right to education and housing. The Parliamentary Select Committee is now expected to seek consensus on various issues and return the document to the Committee of Experts for redrafting.

Suit Charges Company With Forcing Scientology On Employees

A state court lawsuit filed last month in Bound Brook, New Jersey charges that a health and wellness company, Open House Direct, forced two former employees to take courses in Scientology in order to keep their jobs. One of the employees, Maurice Grays, charges that company co-owner John Buckley harassed him to become a Scientologist and forced him to buy a Scientology library and pay course tuition. According to today's Somerville (NJ) Courier News, both of the employees were eventually fired. The lawsuit also alleges that the company uses Scientology-based literature to train employees in sales and business administration. John Buckley, who denies the charges, has just taken on a new responsibility in addition to the company. He has become a member of the Bound Brook Borough Council.

Pennsylvania Says Hasidic Jewish Summer Camp Does Not Qualify For Property Tax Exemption

In Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County Board of Assessment Appeals, (PA Comnwlth. Ct., Dec. 29, 2009), a Pennsylvania appellate court upheld the denial of a property tax exemption to a 60-acre Jewish summer camp located in Pennsylvania and operated by the Bobov Orthodox Jewish community (also known as the Bobover Hasidim) headquartered in Brooklyn, N.Y. The camp attracts boys from New York, Canada, England and Israel. Pennsylvania has a series of criteria that an organization must meet in order to qualify for a tax exemption as a "purely public charity." The court agreed that the camp "benefits a substantial and indefinite class of persons who are the legitimate subjects of charity," but it did not meet a second requirement that "it relieves the government of some of its burden." The court reasoned:

Mesivtah did not present any evidence that the camp’s recreational and food facilities alleviate any local community burdens in Pike County.... In addition, although the food facilities are open to the public, the general public does not use the camp's facilities.

In Canada, Fired Minister of Historic Church No Longer In Contempt of Earlier Order

In British Methodist Episcopal Church v. Davis, (ON Ct. App., Jan. 8, 2010), an Ontario (Canada) Court of Appeal held that the former minister of the historic British Methodist Episcopal Church in Guelph (ON) was no longer in contempt of a prior lower court order requiring her to deliver all documents, records and property of the church in her possession, not interfere with any religious services and not attend the church without consent of church officials. According to yesterday's Guelph Mercury, the dispute began in July 2008 when Rev. Erica Davis was not reappointed pastor of the church that was built in 1880 by former slaves who had fled to Canada via the underground railroad. Davis claimed that the church had failed to pay her an agreed $248,000 in compensation. She also contended that church trustees had passed a resolution to transfer title to the church property to her-- a claim that the court rejected.

Literal Belief In Bible Becomes Issue In Alabama Gubernatorial Primary

Seven candidates are running in this year's Republican primary for Governor of Alabama. One of the candidates, Chancellor of the Department of Postsecondary Education, Bradley Byrne, is now under fire from opponents because of this statement quoted last November in the Mobile Press-Register: "I believe there are parts of the Bible that are meant to be literally true and parts that are not." On Wednesday at news conference at a Piggly Wiggly store in New Hope (AL) announcing his endorsement by the Alabama Retail Association, Bryne said the Press-Register had misquoted him. He added: "I believe the Bible is true. Every word of it." Press-Register Executive Editor Mike Marshall later responded that: "There is no way that the Press-Register misquoted Mr. Byrne in that story." American United's blog today comments on the controversy

Church's Appeal of Zoning Decision Is Only Partly Successful

In Our Savior Evangelical Lutheran Church v. Saville, (IL App., Dec. 31, 2009), an Illinois appellate court rejected a free exercise challenge to the Aurora (IL) Zoning Ordinance as well as a challenge under the Illinois Religious Freedom Restoration Act. At issue was the Church's application for zoning approval to build an addition to the church and a parking lot. The Church argued in part that provisions limiting the site plan review process-- as opposed to applying for a special use permit-- to churches on major thoroughfares was discriminatory. The court disagreed. However the court remanded the case to the trial court for it to examine whether denial of the Church's application for a special use permit violated the Church's substantive due process rights. The remand was occasioned by the fact that during the pendency of the appeal, the state legislature amended the law to grant trial courts de novo review powers over decisions denying a special use permit.

Protests, Church Attacks Greet Malaysian Decision on Use of "Allah" By Catholic Paper

In Malaysia, last week's High Court decision (see prior posting) allowing the Catholic newspaper, The Herald, to use the word "Allah" in its Malay-language edition to refer to God, has generated protests in mosques and arson attacks on four Christian churches. Today both the London Times and Al Jazeera report on developments. Molotov cocktails were thrown at four churches around Kuala Lumpur. Only one of the churches, the Metro Tabernacle Church, was seriously damaged. Speakers in mosques protested the court's decisions and protesters carried signs charging heresy. Police have stepped up security at churches and political leaders have condemned the attack. Also, apparently in reaction to the court ruling, the website of the Malaysian judiciary was hacked on Thursday and threatening messages were posted. The court's decision will be appealed and its implementation has been stayed while the appeal is pending.

UPDATE: AP reports that on Sunday, two more churches were fire bombed and a third was splashed with black paint. Government leaders and many Muslims have condemned the attacks. In Egypt, Syria and Indonesia Christians commonly use the word "Allah" to describe God.

President Sends Greetings On Orthodox Christmas

Yesterday the White House issued a statement (full text) from President Barack Obama extending warmest wishes to Orthodox Christians celebrating the Great Feast of the Nativity.

New Jersey Senate Rejects Same-Sex Marriage Bill

The New Jersey Senate yesterday voted down A818, the proposed Civil Marriage and Religious Protection Act that would have legalized same-sex marriage in the state. Yesterday's Christian Science Monitor and the Asbury Park Press report that the vote was 20 opposed, and 14 in favor, with 5 senators not voting. New Jersey already recognizes civil unions, but supporters of gay marriage say that there are still restrictions on insurance benefits available to couples who are only in civil unions. Opponents argued for the traditional definition of marriage, and said any change should be through a referendum.

(See prior related posting.)

Challenge To Military Prayers Dismissed For Failure To Exhaust Intramilitary Remedies

In Chalker v. Gates, (D KS, Jan. 7, 2010), a Kansas federal district court dismissed for failure to exhaust intramilitary remedies a claim by a soldier stationed at Ft. Riley that his rights were violated when he was required to attend three Army functions at which sectarian Christian prayers were delivered. One of the events was the "welcome home" ceremony after his unit returned from Iraq. Spc. Dustin Chalker's complaint alleged that mandatory attendance at these events violated the Establishment Clause and in effect created a "religious test" for him to serve as a soldier in violation of Art. VI of the Constitution. While concluding that Chalker had standing to bring the claims, the court said that he should have either filed a request for religious accommodation or filed an administrative Equal Opportunity complaint, instead of merely complaining through his chain of command. The suit was also filed by the Military Religious Freedom Foundation. AP yesterday reported on the decision.

Obama Says Must Engage With Muslims To Prevent Lone-Wolf Radicalizations

Yesterday, President Obama delivered widely-covered Remarks on Strengthening Intelligence and Aviation Security (full text) summarizing the results of initial reviews he ordered after the attempted Christmas-day bombing of a plane heading to Detroit. A portion of the President's remarks were addressed to the issue of al Qaeda's attempts to radicalize and recruit lone individuals around the world. He said:

And we know that the vast majority of Muslims reject al Qaeda. But it is clear that al Qaeda increasingly seeks to recruit individuals without known terrorist affiliations not just in the Middle East, but in Africa and other places, to do their bidding. That's why I've directed my national security team to develop a strategy that addresses the unique challenges posed by lone recruits. And that's why we must communicate clearly to Muslims around the world that al Qaeda offers nothing except a bankrupt vision of misery and death –- including the murder of fellow Muslims –- while the United States stands with those who seek justice and progress.

To advance that progress, we've sought new beginnings with Muslim communities around the world, one in which we engage on the basis of mutual interest and mutual respect, and work together to fulfill the aspirations that all people share -- to get an education, to work with dignity, to live in peace and security. That's what America believes in. That's the vision that is far more powerful than the hatred of these violent extremists.

AALS 2009 Newsletter Has Lengthy Law and Religion Bibliography

The Association of American Law Schools Section on Law and Religion has issued its December 2009 Newsletter containing a 35-page bibliography of articles, books and websites on law and religion published during the past year.

Irsaeli Court Overturns City's Freeze On Synagogue Construction

In Israel, a Tel Aviv District Court has ruled that construction of a planned Orthodox synagogue in the city of Netanya can proceed. Arutz Sheva reported on the case yesterday. Last March, Reform Jewish groups obtained an administrative order freezing all budgetary allocations for synagogue construction in the city until funding was made available for construction of a Reform synagogue as well. The freeze order was appealed and a lower court overturned the freeze. The Reform groups appealed, but the District Court dismissed the appeal, allowing construction to begin. The Reform groups were assessed court costs equivalent to $1300 (US) plus a 16% Value Added Tax.

New Report Ranks 50 Worst Countries For Persecuting Christians

The group Open Doors yesterday released its 2010 World Watch List of the 50 countries where persecution of Christians for religious reasons is most severe. The 10 worst in the list are: North Korea, Iran, Saudi Arabia, Somalia, Maldives, Afghanistan, Yemen, Mauritania, Laos and Uzbekistan. The rankings are compiled from a specially designed questionnaire that focuses on various aspects of religious liberty.

Indian Court Upholds Ban On Book Critical of Islam

In Bhasin v. State of Maharashtra, (Bombay High Ct., Jan. 6, 2010), India's High Court of Judicature at Bombay upheld a ban imposed by the State of Maharashtra on circulation of the book by R.V. Bhasin titled Islam – A Concept of Political World Invasion By Muslims. The government acted under Sec. 95 of the state's Code of Criminal Procedure, 1973 which allows an order of forfeiture to be issued against any newspaper, book or document that promotes enmity or hatred against a group on religious grounds. In a 150-page opinion, the 3-judge court concluded:

The possibility of [the book] falling in the hands of an inflammable mob cannot be ruled out. The way this sensitive topic is handled by the author, it is likely to arouse the emotions or sensibilities of even strong minded people. We have held that criticism of Islam is permissible like criticism of any other religion and the book cannot be banned on that ground. But we have also held that the criticism of Islam is not academic. The author has gone on to pass insulting comments on Islam, Muslim community with particular reference to Indian Muslims. It is an aggravated form of criticism made with a malicious and deliberate intention to outrage the religious feelings of Muslims.

Reports today by DNA and Express News Service have additional details on the opinion.

CAIR Says New TSA Security Policies Target American Muslims

Last Sunday, in the wake of the unsuccessful attempt to bomb an airplane coming into Detroit, the Transportation Security Administration announced that it "is mandating that every individual flying into the U.S. ... traveling from or through nations that are state sponsors of terrorism or other countries of interest will be required to go through enhanced screening." On Tuesday, CAIR issued a press release complaining that this policy

will disproportionately target American Muslims who have family or spiritual ties to the Islamic world and therefore amount to religious and ethnic profiling.... Under these new guidelines, almost every American Muslim who travels to see family or friends or goes on pilgrimage to Mecca will automatically be singled out for special security checks -- that’s profiling.... While singling out travelers based on religion and national origin may make some people feel safer, it only serves to alienate and stigmatize Muslims and does nothing to improve airline security.

CAIR said that a policy is needed that looks at behavior, not faith or skin color. Yesterday's Detroit News carried a column by CAIR's Michigan Executive Director, Dawud Walid, making the point at greater length.

Proposed Russian Law Would Return State-Owned Religious Property To Orthodox Church

According to Interfax yesterday, Russian Prime Minister Vladimir Putin says that a bill has been drafted to deal with transferring state-owned religious property back to the Russian Orthodox Church. Putin said that all assets must be transferred "in a proper form and accompanied by proper financial procedures." In a meeting with Patriarch Kirrill, Putin said he is certain that the Church and the government "will find the solutions that will return to regional organizations what they rightfully own rather than destroy what was created in the past years."

Challenge To Jail Holiday Music Dismissed

As previously reported, six lawsuits were filed in recent months against Maricopa County, Arizona, Sheriff Joe Arpaio by prisoners who object to his playing Christmas and holiday tunes all day long at all of the county's jails. The play list included Dr. Demento's Christmas album, with humorous holiday songs; Alvin and the Chipmunks; Elvis Presley, including "Blue Christmas"; Celtic chanting; traditional carols by the Mormon Tabernacle Choir; and a CD with titles such as "Feliz Navidad," "Ramadan," "Betelehui," "Over the Skies of Ysrael," and "A Christmas/ Kwanzaa/ Solstice/ Chanukah/ Ramadan/ Boxing Day Song." Four of the suits were dismissed earlier, and now an Arizona federal district court has issued an opinion dismissing one of the remaining challenges.

In Curley v. Arpaio, 2010 U.S. Dist. LEXIS 199 (D AZ, Jan. 4, 2010), the court rejected an Establishment Clause challenge concluding that "Defendant presents a neutral, secular purpose for playing holiday music--to reduce inmate tension at a difficult time of year for inmates, and to promote safety in the jails.... [T]here were no religious activities or prayer, and the secular music diluted any religious effect." The federal court declined jurisdiction over plaintiff's other claim that the music violated the provision in the Arizona Constitution (Art. II, Sec. 12) barring the expenditure of any public funds for religious exercise.

9th Circuit: Asylum Application By Muslim Convert To Christianity Was Timely

In Taslimi v. Holder, (9th Cir., Jan. 4, 2010), the U.S. 9th Circuit Court of Appeals held that an Iranian woman who had converted from Islam to Christianity while in the United States had not waited too long to apply for asylum. The conversion took place in 2002, ten years after she entered the United States on a one-year visitor's visa. The immigration judge concluded that Azra Taslimi was eligible for withholding of removal because it was likely her life or freedom would be threatened in Iran. However Taslimi preferred asylum since that would give her the chance to eventually become a legal permanent resident and eventually a citizen. (Background.) To obtain asylum, an individual must apply within one year of entering the country or within a "reasonable period" later after a change of circumstances (such as her conversion). Taslimi waited seven months after her conversion. The Court of Appeals concluded that this was reasonable because the conversion ceremony was merely the beginning of a process that called for spiritual growth. Taslimi did not apply for asylum immediately because she wanted to be sure that her conversion was going to be a life-long decision. The Los Angeles Metropolitan News-Enterprise reports on the decision.

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.